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 The provisional remedies of the code of 
 
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THE 
 
 PROVISIONAL REMEDIES 
 
 CODE OF PROCEDURE. 
 
 BT 
 
 MUEKAY HOFFMAN, Esq., 
 
 LATE JUSTICE OF THE SUPEEIOK COUKT OF NEW YORK. 
 
 NEW YORK : 
 JOHN S. VOOKHIES, lAW BOOKSELLER AND PUBLISHER, 
 
 2 NASSAU STREET. 
 1862. 
 
Entered, according to Act of Congress, in the year 1862, by 
 
 MURRAY HOFFMAN, 
 
 in the Clerk's OflBce of the District Court of the United States for the Southern District of 
 
 New York. 
 
 BAKER A fiODWIN, PRINTERS, 
 Printing-HoiiBB Sqifftro, opposite City Hall, 
 
 Nl.W VoRK. 
 
PREFACE 
 
 The Code of Procedure, having divided Remedies in 
 the Courts of Justice into Actions and Special Pro- 
 ceedings, has a subdivision under the first head, termed, 
 " Of the Provisional Remedies in Civil Actions.'''' These 
 form the subject of the Seventh Title of Part Two ; and 
 this Title is separated into five chapters. These chapters 
 comprise the important subjects of Areest and Bail; 
 Claim and Delivery of Personal Property ; Injunc- 
 tions ; Attachments ; and of Provisional Remedies ; 
 embracing Receivers, and several miscellaneous proceed- 
 ings. 
 
 It is proposed to state, in the following ti'eatise, the 
 provisions of the Code upon these subjects, the judicial 
 expositions which they have received, and the general 
 law upon them. 
 
EEE AT A. 
 
 Page 'J, line 23, for " 10 Howard," read " 10 Barbour." 
 " 39, line 31, for " 11 Sandf.," read " i Sandf." 
 " 59, line 6, after word " party," insert " shall." 
 " 76, line 6 from bottom, insert word " for," after word " bail.' 
 
PEOYISIONAL EEMEBIES. 
 
 CHAPTEE I. 
 
 ARREST AND BAIL. 
 
 Introductory. — ^The principles of the feudal system exempted 
 the persons of feudatories and vassals from an arrest for civil 
 injuries. The conditions of their tenure, or the obligations of 
 their relation demanded their personal attendance upon the sig- 
 nal for defence or conquest ; and thus the necessities of the mon- 
 arch or feudal lord produced the same result as modem liberal- 
 ity or wisdom has achieved. 
 
 Accordingly, in England the redress by an arrest of the per- 
 son, for a civil injury unaccompanied with force, began when 
 feudalism had commenced to fade. The first statute was that of 
 the 52d of Henry III., providing, that if bailiflfs who ought to 
 make accounts to their lords do withdraw themselves, and have 
 no lands or tenements whereby they may be distrained, then 
 their bodies shall be taken, so that the sheriff shall cause them 
 to make their account. Mr. Reeves, indeed, states that even in 
 that reign, the ordinary process in personal actions included a 
 writ to the sheriff qiwd habeat corpus.^ 
 
 The very important and beneficial regulations of the Statutes 
 Merchant" contained the next step in the progress of this right. 
 
 ' History of the English Law, Vol. II. p. 4S9. 
 " 11 Ed: I., cap. 1 ; 13 Ed. III., stat. 3, chap. 1. 
 1 
 
2 AEKEST AND BAIL. {Introductory. 
 
 By the operation of these acts, the body could be taken, after 
 ineffectual process against the chattels and lands of the debtor, 
 who had entered into the specialty provided by them. 
 
 The 25th of Edward III., ch. 17, extended a capias to actions 
 of debt and detinue ; and that of 19 Henry YII., ch. 9, to all 
 actions upon the case in any of the courts, the same as in actions 
 of trespass or debt. 
 
 A series of enactments then took place, regulating the right 
 of arresting, the taking of bail, and the preventing of abuses. The 
 leading statutes are: 23 Henry YI., ch. 9, called the Statute of 
 Main-prize; the 13 of Charles H., Stat. 2, ch. 2 ; the 12 of Geo. 
 I., ch. 29 ; the 21 of Geo. II., ch. 3 ; the 51 Geo. III., ch. 1Y4, 
 § 1 ; and 43 Geo. III., ch. 46, § 2. The provisions of these acts 
 are stated in Mr. Petersdorf 's Treatise on the Law of Bail (p. 8, 
 ch. 89 ; Law Library, vol. 10, p. 58). 
 
 The opinion' of Chief Justice Tindal in Chambers vs. Bernas- 
 coni (6 Bingham, 498, 1830) contains an instructive though brief 
 history of the law of arrest and bail. He says : " The courts 
 have always exercised, and have the power to exercise, a general 
 control over the right of the plaintiff to hold to bail. Before the 
 statute of 12 Geo. I., ch. 29, the power of arresting depended on 
 the practice of the court only, modified from time to time by 
 rules of the court for that purpose. Thus the practice of not 
 allowing a second arrest for the same cause of action ; of allow- 
 ing the plaintiff to hold to bail in actions of trover and trespass, 
 have no other foundation than the rules of court. And the stat- 
 ute before referred to took away no authority which the court 
 antecedently possessed, except that it prevented the issuing of 
 bailable process for a smaller sum than £10. The courts, there- 
 fore, may still interpose, and in various instances have interposed, 
 in a summary way, and discharged the defendant on common 
 bail." He cites several eases, and among them ISTizetich m. Bona- 
 cich (5 Barn. & Aid. 904), where the Court of King's Bench dis- 
 charged the defendant, when it appeared from the plaintiff's own 
 letters, that the defendant was his creditor to a considerable sum ; 
 also McGinness vs. McCurlin (6 Dowling & Eyland, 24). 
 
 The statute of Geo. I. referred to, provided, that when the 
 plaintiff's cause of action amounted to ten pounds or upwards, 
 an affidavit of such cause of action was to be made, and the sum 
 
Int/roductory.'] aeeest jjjd bail. 3 
 
 was to be indorsed on the process ; for which sum and no more 
 the sheriff was to take bail. Without such affidavit and indorse- 
 ment, no arrest could be made. The act of 51 Geo. III., ch. 21, 
 extended the sum to fifteen pounds, besides costs. But the stat- 
 ute of 1 and 2 Victoria, ch. 110 (1838), made a great change in 
 the law. It is entitled " An act for abolishing arrest on mesne 
 process in civil actions, except in certain cases," &c. The recital 
 is, " Whereas the present power of arrest upon mesne process is 
 unnecessarily extensive and severe" — and it provides, that "from 
 and after the time appointed for the commencement of this act, 
 no person shall be arrested upon mesne process in any civil action 
 in any inferior court whatever ; or (except in the cases and in 
 the manner hereinafter provided for) in any superior court." 
 
 The 3d section enacts : " That if a plaintiff in any action in 
 any of Her Majesty's superior courts of law at Westminster, in 
 which the defendant is now liable to arrest, whether upon an or- 
 der of a judge, or without such order, shall, by the affidavit of 
 himself or of some other person, show to the satisfaction of a 
 judge of one of the said superior courts, that such plaintiff has a 
 cause of action against the defendant or defendants, to ^he amount 
 of twenty pounds or upwards, or has sustained damages to that 
 amount ; and that there is probable cause for believing that the 
 defendant, or any one or more of the defendants, is or are about 
 to quit England, unless he or they be forthwith apprehended, it 
 shall be lawful for such judge by official order to direct, that such 
 defendant or defendants so about to quit England, shall be held 
 to bail for such sums as such judge shall think fit, not exceeding 
 the amount of the debt or damages." 
 
 A capias is issued upon this order. Some other of the provi- 
 sions of the act, and eases upon them, are noticed under particular 
 sections of this chapter. 
 
 By the 14th and 15th of Yictoria, ch. 53, it is provided, that 
 certain officers in different parts of the kingdom may grant a 
 warrant of arrest, where the debt is over £20, and there is proba- 
 ble cause for believing that such debtor, unless he be forthwith 
 apprehended, is about to quit England with intent to avoid or 
 delay the said creditor, or with intent to remain out of the juris- 
 diction of the courts of law in England so long, that the creditor 
 will or may be delayed in the recovery of his debt. 
 
4 AEEEST AND BAIL. [^InpTOCl/UCtory . 
 
 Under the former statute, it was requisite to obtain the order 
 for a warrant from a judge. 
 
 The early English statutes and practice formed the basis of 
 of our own system before the Revised Statutes of 1830. The 
 act of the 16th February, 1Y8Y, " for preventing of vexations and 
 oppressions by arrest" (1 Greenleaf, 339), was founded upon the 
 statutes of Henry VI., of George I., and George II. 
 
 The Revised Laws of 1813 contained similar provisions. (1 
 R. L. 424, § 13, 14.) The Revisers of 1830 (3 R. S. 719) say: 
 " The law respecting arrests stands upon a singular footing in 
 this State. The 14th section of our statute (1 R. L. 424) is 
 taken from the English act of 13 Charles II., ch. 2 {vide Tidd 
 36). But by the act of 12 Geo. I., ch. 29, an affidavit of the cause 
 of action was required, in order to hold to bail for any sum 
 over ten pounds. The decisions on the latter statute have 
 guided our own courts in the construction of our act, which 
 required only that the certainty and the cause of action should be 
 particularly expressed. If this requisite is complied with, it 
 would seem that the statute would be satisfied, whatever was 
 the cause of action. But its general terms have been very prop- 
 erly limited by the courts. It would seem very expedient that 
 the cases in which a citizen is to be deprived of his liberty, 
 should be clearly defined." 
 
 The Revised Statutes of 1830 (2 R. S. 348, §§ 4-24) embodied 
 the existing provisions and rules of law, and provided for nearly 
 every case, both as to the right to arrest, and the course of pro- 
 ceeding. Thus, by section Y, in the following cases the defend- 
 ant could be held to bail of course, and witl^out any special 
 order for that purpose : 
 
 (1.) In all actions of debt, except such as shall be brought 
 upon a judgment rendered in a suit in which the defendant had 
 been held to bail ; and except such as shall be brought upon any 
 bail bond or recognizance of bail, or upon any replevin or other 
 bond, in which any surety shall have joined, taken in the course 
 of judicial proceedings, or by virtue of any statute. 
 
 (2.) In all actions upon contracts for the payment of any mo- 
 ney, the performance of any service, or the delivery of any prop- 
 erty, where the demand or damages shall be certain, or can be 
 reduced to certainty. 
 
Introductory.] aebest and bail. 6 
 
 (3.) In actions of trover and in actions of trespass for taking 
 of personal property, and in actions of replevin, in the cases pro- 
 vided by law. 
 
 (4.) In actions for trespass upon land. 
 
 Ey section 8th, " in all cases, other than such as are herein pro- 
 vided for holding a defendant to bail, an order requiring such 
 bail may be granted by a judge of the court in which the writ is 
 issued, in the cases, according to the practice established in the 
 Supreme Court." 
 
 The provisions of this act are referred to in several instances 
 in the following treatise, where they have been considered either 
 as not repealed, or by way of illustration. 
 
 Soon after the Revisers had elaborated this system upon the 
 subject of arrest and bail, the important act of April 26th, 1831, 
 was passed. It was entitled " An act to abolish imprisonment 
 for debt, and to punish fraudulent debtors." The first section 
 provided,, "that no person shall be arrested or imprisoned, on any 
 civil process out of any court of law, or any execution issuing 
 out of any court of equity, in any suit or proceeding instituted 
 for the recovery of any money due upon any judgment or decree 
 founded upon contract, or due upon any contract express or im- 
 plied, or for the recovery of any damages for the non-performance 
 of any contract." 
 
 Section 2 excepted from the preceding section any person 
 who had not been a resident of the State for at least one month 
 previous to the commencement of the suit against him ; proceed- 
 ings as for contempts to enforce civil remedies ; actions for fines 
 and penalties ; or on promises to marry ; or for moneys collected 
 by any public officer ; or for any misconduct or neglect in office, 
 or in any professional employment. 
 
 Section 3 provided for arresting a party by warrant of a 
 judge or officer, in cases in which, under the preceding provisions, 
 a defendant could not be arrested or imprisoned. And section 4 
 specified the manner in which such a warrant could be obtained, 
 and the cases in which it could be issued. 
 
 An affidavit was to be made by the plaintifi", or some other 
 person or persons, of a demand or debt being due from the de- 
 fendant, amounting to more than fifty dollars, and specifying the 
 nature and amount thereof, as near as might be, and establishing 
 -one or more of the following particulars : 
 
AEEEST AND BAIL. 
 
 [^Introductory-. 
 
 (1.) That the defendant was about to remove any of his prop- 
 erty out of the juris'diction of the court in which such suit was 
 brought, with intent to defraud his creditors ; or, 
 
 (2.) That the defendant had property or rights in action which 
 he fraudulently concealed ; or, that he had rights in action, or 
 some interest in any public or corporate stock, money, or evi- 
 dences of debt, which he unjustly refused to apply to the pay- 
 ment of any judgment or decree, which shall have been rendered 
 against him, belonging to the complainant ; or, 
 
 (3.) That he had assigned, removed, or disposed of — or was 
 about to dispose of— any of his property, with the intent to de- 
 his creditors ; or, 
 
 (4.) That the defendant fraudulently contracted the debt, or 
 incurred the obligation, respecting which such suit was brought. 
 
 In following up the history of our legislation upon this sub- 
 ject, it will be sufficient to advert merely to the act of 1837 
 (ch. 418) ; to the act of April 25, 1840 (eh. 165), which repealed 
 the provision in the second section, that the first section should 
 not extend to a person not a resident for one month previous ; 
 to the act of May 13, 1845 (ch. 214), providing for the putting 
 in and perfecting bail by a party arrested, and subjecting the de- 
 fendant to imprisonment on an execution, who may have pex"fected 
 bail ; to the act of May 12, 1846 (ch. 209), providing that the 
 provision of the statute of May 13, 1845, as to bail, should not 
 apply to cases of a person imp-isoned for either of the frauds 
 specified in either of the first three subdivisions of the fourth 
 section of the act of 1831 ; to the act of 1847 (ch. 300), denying 
 imprisonment for non-payment of interlocutory costs, with certain 
 exceptions ; and to the act of February 18th, 1848 (ch. 48, § 2)', 
 giving the right to make the application for a warrant to any 
 judge of a court of record, in the county in which the judgment 
 had been docketed. 
 
 The exposition of the system raised by these various statutes, 
 and of the obscurities, contradictions, and difficulties attending 
 them, will be found in the leading cases of Spear vs. Waddell 
 (1 Comstock, 149), and Hall m. Kellogg (2 Kernan, 325). 
 
 The Code has preserved these enactments in force (§ 178), and 
 many of its provisions are so similar as to make the decisions 
 upon them applicable. They will be noticed in their proper 
 places. 
 
§ 1T8.] AEEEST AND BAIL. 7 
 
 It remains to be observed that tlie system of the Code is one 
 in which an arrest is peculiarly and exclusively auxiliary to the 
 action of the plaintiff, the particular creditor, and available to 
 him, and for the enforcement of his demands, solely. 
 
 Section 178. 
 
 " No person to be arrested, except as prescribed by this act. 
 
 " No person shall be arrested on a civil action, except as pre- 
 scribed by this act ; but this provision shall not affect the act to 
 abolish imprisonment for debt, and to punish fraudulent debtors, 
 passed April 26, 1831, or any act amending the same ; nor shall 
 it apply to proceedings for contempts." 
 
 This section has remained in the same language from the en- 
 actment in the Code of 1848. It was at first the 153d section. 
 Its language is peremptory. It makes the liability of a party to 
 arrest, in a civil action, to depend upon his being brought within 
 the provisions of this chapter, or of the act of April 26, 1851, 
 and its amendments, or under proceedings for contempt. 
 
 Ne exeat. ^ — It seems difficult, at first view, then, to compre- 
 hend the principle upon which it was in some cases held that a 
 writ of ne exeat could be still resorted to. All suits in equity in 
 which this equitable bail could have been had were civil actions 
 under section 6 of the Code. 
 
 In Forrest vs. Forrest (5 Howard P. Kep. 125 ; 10 Howard, 
 46), the subject was carefully examined by Mr. Justice Edmonds, 
 and the conclusion arrived at was that the writ was not abol- 
 ished as a provisional remedy. Whether the other judges (Ed- 
 wards and Mitchell) concurred in this view, is not stated. The 
 writ was discharged upon the particular circumstances of the 
 case. 
 
 In Bushnell vs. Bushnell (7 Howard, 389, and 15 Barbour, 
 399), the same conclusion as to the writ remaining in force was 
 arrived at by the General Term of the Second District. 
 
 In Ulman vs. TJlman, May, 1860, the right was again recog- 
 nized, in the Supreme Court of the First District, at Special 
 Term. 
 
8 AEEEST AUn BAIL. [§ 1T8. 
 
 In Fuller vs. Emeric (3 Sand. Sup. Ct. Eep. 607), the Superior 
 Court of the city of New York determined that the Code had 
 abolished the writ. This was in January, 1849. 
 
 By the 200th section of the Code of 1848, and the 244th of 
 that of 1849, it was provided that, until the Legislature should 
 otherwise provide, the court might appoint receivers, and direct 
 the deposit of money or other thing in court, and grcmt the oth&r 
 provisional remedies now existing, according to thejpresent prac- 
 tice, except as otherwise provided in this act. 
 
 Ey the amendment of 1851, the clause italicized was omitted. 
 It was to some extent relied upon by the court in Forrest vs. 
 Forrest, JSTovember, 1850. 
 
 Act of 1831. — The act of 1831 is retained in force expressly, 
 and a warrant may issue in all the cases prescribed by it. In 
 several instances the Code allows an arrest in the same cases, 
 and then it is concurrent.' 
 
 In Kenderburgh vs. Morgan," Chief Justice Bosworth, after 
 commenting upon the harmony which existed between the many 
 provisions of the act of 1831 and those of the Code, observed, 
 " that they should be construed as consistent in spirit and design, 
 when no violence is done to the natural import of the words. 
 Under both an arrest cannot be had except by order in an action. 
 The act declares that it shall not be, and the Code does not pro- 
 vide that it may be, unless such provision is found in § 288." 
 
 That section was then examined, and it was held that it con- 
 templated that the question had been determined before execu- 
 tion. See the case and decision, post, title ^^ Arrest on Execvr 
 tion," after section 205. 
 
 Contempts. — ^The section now discussed expressly retains in 
 force imprisonment under the laws relating to contempts. See 
 2 K. S. 531 ; 2 E. S. 278. See, also, Code, § 471, and The Peo- 
 ple vs. Compton, 1 Duer, 514. 
 
 ' Gregory vs. Weiner, 1 Code Reporter, N. S. 210 ; Corwiii vs. Freeland, 6 How- 
 ard's Pr. 241 ; Perkins vs. Warren, ibid. 348. 
 
 ' Superior Court, Feb, 1860, Special Term, 18 Howard Pr. Rep. 469. 
 
§ 179, Subd. l.J AEEEST AND BAIL. " 9 
 
 Section 179. 
 
 " Oases in wMcli the defendant may he arrested. 
 
 " The defendant may be arrested, as hereinafter jDrescribed, in 
 the following cases : " 
 
 FiEST Subdivision. — " 1st. 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 char- 
 acter ; or for injuring, or for wrongfully taking, detaining, or con- 
 verting property." 
 
 The 150th section of the Code of 1848 provided in the first 
 subdivision only as follows : " In an action for the recovery of 
 damages on a cause of action not arising out of contract." 
 
 In 1849 the subdivision was amended as above, and has so 
 continued. 
 
 The first case under this first subdivision is, when the action is 
 for the recovery of damages, does not arise out of contract, and 
 when the defendant is not a resident of this State. "When all 
 these circumstances concur, the defendant may be arrested. 
 
 Actions not arising out of contract. — In this as in some other 
 cases, we are led for our guidance to the old distinction between 
 actions ess cont/ractu and actions ex delicto. 
 
 So in the English Common Law Procedure Act of 1852, the 
 distinction between causes of action " on contracts " and " for 
 wrongs independent of contracts " is preserved. (Lush's Ste- 
 phens' Practice, 106.) 
 
 A tort is a wrong independent of a contract. Actions mform 
 ex delicto are for injuries to the absolute or relative rights of per- 
 sons, or to personal or real property. (Chitty PL, vol. i. p. 60.)* 
 
 The observations of Judge Swift upon actions, and their divi- 
 sions, may be usefully cited. " An application to a court of law 
 for the redress of a wrong, is called a suit or action, which may 
 be defined to be a prosecution before a court of law for the re- 
 covery of one's right. Actions are divided into three kinds — per- 
 
10 AEEEST AND BAIL. [§ 179, Subd. 1. 
 
 sonal, real, and mixed. Personal actions are those by whicb a 
 man claims damages as a. satisfaction for the non-payment of some 
 debt, or the non-performance of some duty; or for some injury 
 done to his person, or to his property, either real or personal. 
 Eeal actions are those which concern real property, and are 
 brought to recover the possession of lands or tenements, by the 
 owner, and in which he recovers the land only, without any dam- 
 ages. Mixed actions are those which are brought to recover the 
 possession of lands and tenements, and also for the recovery of 
 personal damages for the wrong sustained. Personal actions are 
 subdivided into two kinds — actions that are founded upon torts 
 or wrongs, and actions that are founded upon contracts. Actions 
 that are founded upon torts are further divided into two kinds — 
 one is trespass with force and arms, where the action complained 
 of is immediately injurious, and accompanied by some degree of 
 actual force and violence, as assault and battery or false imprison- 
 ment. The other is trespass on the case, where the act is not ac- 
 companied with force or violence, and is injurious in its conse- 
 quences only, as slander, malicious prosecution, trover, and the 
 like. Actions founded on contract are to recover damages for 
 non-payment of some debt, the non-performance of some contract, 
 or the neglect of some duty. Such are the actions of debt, cove- 
 nant, account, assumpsit, and book debt." (Swift's Digest, re- 
 vised edit, of 1851, p. 481, 482.) 
 
 Whatever may be the true extent of section 69 of the Code 
 abolishing the previous forms of actions, the section now consid- 
 ered shows, that the radical distinctions as to the nature of ac- 
 tions has not been obliterated. 
 
 In Fowlers vs. Abraham (3 E. D. Smith, 13), the action was an 
 old action on the case,' for deceit in a warranty of a sale of goods 
 which was false. It was held that although an action of assump- 
 sit had to a great extent superseded such an action, yet it could 
 still be resorted to ; that the allegation of fraud was not neces- 
 sary. If inserted in the complaint, it need not be proven. The 
 warranty and its falsehood were alone suflScient, if duly estab- 
 lished. Yet this action was one arising out of contract, and there 
 could be no arrest of the body without a special order. 
 
 In The People vs. Willett (26 Barbour, 78), Mr. Justice Pea- 
 body held, that an action on the custom against an innkeeper for 
 
§ 179, Bubd. 1.] AEEEST AND BAIL. 11 
 
 » 
 
 the loss of the baggage of his guest, was founded on tort. It is 
 not for injuring, or wrongfully taking, detaining or converting 
 property ; but it is for tortious negligence in keeping the property. 
 Hence, that, in such an action, the defendant could not be ar- 
 rested, except when, in addition to the facts constituting the cause 
 of action, the defendant was a non-resident of the State, or about 
 to remove therefrom. 
 
 In Smith vs. Corbiere (3 Bosworth's Hep. 634), the cause of 
 action was the false and fraudulent representation of another's 
 responsibility, which induced a sale of goods. It was held not to 
 arise out of contract ; to be a mere personal tort ; that the de- 
 fendant could not be arrested unless he was a non-resident, or 
 about to remove from the State. An arrest could not be sus- 
 tained under subdivision 4 of section 179, for the obligation there 
 spoken of was one arising ex contractu, on which an action will 
 lie, whether contracted with or without fraud. It had no rela- 
 tion to a cause of action which arises exclusively out of the fraud 
 of the party, and must fail, if the fraud is not proved. 
 
 Non-residence.' — Under the clause now considered, the de- 
 fendant must also be a non-resident. The question of non-resi- 
 dence is very fully examined under the 227th section of the Code, 
 title "Attachment." The phrase, " who is not a resident," is there 
 used. The subject having been much discussed in the Superior 
 Court of New York, under that section, the author refers to the 
 discussion there, although it would have been more orderly to 
 have treated of it here. 
 
 In FuUerton vs. Fitzgerald (18 Barbour, 441), the action was 
 to recover possession of real estate, and of the rents and profits 
 while in the defendant's occupation. The plaintiff had judg- 
 ment for the property, and also for $70 for damages. After execu- 
 tion against property, an execution against the person was issued, 
 and the defendant imprisoned. The execution was set aside, and 
 the defendant discharged. It was ruled, that it was enough if the 
 right to arrest appeared on the face of the judgment ; it need not 
 on the execution. It was also held, that the case could not be in 
 any way treated as within the first subdivision of § 179 of the Code. 
 
 Intention to remove from the State. — If the defendant is about 
 to remove from the State, and the action is for the recovery of 
 damages, on a cause of action other than a contract, he may be 
 arrested. 
 
12 AJJBEST AND BAIL. [§ 1T9, Subd. 1. 
 
 The fact of his being about to remove from the State, implies 
 a residency within it, and an intention permanently to leave it, 
 and permanently to reside elsewhere. In other words, a change 
 of domicile must, I apprehend, be designed. 
 
 In Brophy ?)s. Eogers' (7 Legal Observer, 152), the defendant 
 was arrested in an action of slander, upon an affidavit that he was 
 about to depart for California. He was discharged by order of 
 the Special Term. On appeal the court said : " Going to Cali- 
 fornia is not removing within the meaning of the act. It means 
 a removal for a change of residence. His intention to remove 
 with some permanent view must appear in the affidavit ; and 
 if it be shown by the defendant, that he had no intention to re- 
 move with a view to a change of his residence, the order will 
 be revoked." The order of discharge was affirmed. 
 
 The English act of 1-2 Victoria, noticed in the introductory 
 remarks, allows the arrest when the defendomt is about to quit 
 England, unless he be forthwith apprehended; and it is held, 
 that it is sufficient to show generally that the defendant is about 
 to quit the country forthwith, without suggesting his object, or 
 how long he is to be absent. A person about to return to his 
 residence in Ireland is as liable to be arrested as a trader going 
 abroad to avoid his creditors." 
 
 Every departure, however, is not within the act. A captain 
 of a channel-vessel going upon his usual voyage is not liable to 
 arrest.' 
 
 In Hargreaves vs. Hayes (3 Queen's Bench, 486 ; 30 En. L. 
 ■& Eq. Hep. 272), Justice Coleridge said: "The object was to 
 ^ arrest the party who probably would not be in the country when 
 the judgment was recovered. It is necessary that it should ap- 
 pear to .the satisfaction of the judge, from the facts stated, that 
 the debtor means to go abroad promptly. It does not follow 
 that the party should swear that the debtor will go abroad un- 
 less he is immediately arrested." 
 
 It deserves notice that the ground thus taken was the rule 
 before the Code. In Brooks vs. M'Lellan (1 Barbour Sup. Ct. 
 Rep. 247), Justice Edmonds (where the arrest had been made in 
 
 ' Common Pleas, General Term, 1849. 
 
 " Lamond vs. ELffe, S Queen's Bench, 910 ; Linchin vs. Willan, 1 Dowl. Pr. Ca. 11. 
 
 ' 1 Dowl. Pr. Ca. N. S'. 849. 
 
§ 179, Sllbd. l.j AEEEST AND BAIL. 15 
 
 an action for deceit) observed : " The rule for holding to bail for 
 actions of tort is, that something more must be stated than 
 merely a cause of action. Some special cause must be shown in 
 addition ; such as that the defendant is a non-resident, or is about 
 to depart out of the State, and the lilce. A resident of this State 
 cannot, in such cases, beheld to bail, unless evidence is produced 
 to justify the apprehension that he will not be within the juris- 
 diction of the courts to answer the demand when judgment shall 
 be obtained against him." 
 
 By the statute of New Hampshire,' no person shall be arrested 
 upon any writ or execution founded on any contract made after 
 the 1st of March, 1841, unless the plaintiff, or some person in his 
 behalf, make an affidavit before a justice, on the back of such 
 writ, that in his belief the defendant is justly indebted to him in 
 a sum exceeding $33 33, and that he conceals his property so 
 that no attachment or levy can be made ; or that there is good 
 reason to believe he is about to leave the State to avoid the pay- 
 ment of his debts. 
 
 Section 9 provides for a prompt trial of the grounds of the 
 arrest, upon the defendant's affidavit, and any other evidence. 
 
 Section 11 prevents the discharge from affecting the debt. 
 
 In Stevenson vs. Smith (8 Foster's Kep. 12), it was held that 
 the statute applied to the citizens of New Hampshire, about to 
 abandon the State purposely to avoid the payment of their debts. 
 It could not apply even to such citizens, leaving the State for 
 temporary purposes of business or otherwise, with the intent to 
 return. Much less could it apply to a citizen of another State, 
 coming into New Hampshire for a temporary purpose (in that 
 instance to attend the funeral of a relative), and being there only 
 for such purpose. 
 
 Injury to person. — The next clause of this subdivision re- 
 lates to an action of a specific nature, viz., for an injury to person 
 or character. In such an action the defendant may be arrested. 
 
 By the English law, injuries to the person requiring neces- 
 sarily an action ex delicto for uncertain damages, a judge's order 
 was necessary to hold to bail. A judge at chambers, on an affi- 
 davit containing a positive statement of the injury, would order 
 
 ' Compiled Statutes of 1853, ch. 197, § 8. 
 
14 AEEEST AND BAIL. [§ 179, Subd. 1. 
 
 special bail. Thus, it was done for battery or mayhem where it 
 •was obvious the damages would exceed fifteen pounds. (Peters- 
 dorf, 38.) 
 
 By the Eevised Statutes of 1830 (2 E. S. 348, § 9), a special 
 order to hold to bail was to be obtained for injuries to the per- 
 son. 
 
 There appears to have been a rule of the Superior Court of 
 New York, fixing the sum of five hundred dollars as the amount 
 in which a party should be held to bail in ordinary cases of as- 
 sault and battery. (Ballingall vs. Barnie, 1 Hall's Eep. 23Y.) 
 
 In the case of an assault and battery charged to have been 
 committed by the wife alone, it was held that the married wo- 
 man was not liable to arrest at all ; and that the husband could 
 not be arrested in an action founded on the contract or tort of 
 the wife. (Anon, 1 Duer, 613.) 
 
 Crim. con. — In Delamater vs. Eussell (4 Howard, 234), it was 
 held by Justice Parker that, in an action for criminal conversa- 
 tion with the plaintiff's wife, the defendant could be arrested. 
 He thought the injury complained of was one to the person of 
 the plaintiff. It was an invasion of his personal rights. The ac- 
 tion was for depriving the plaintiff of the comfort, aid, and assist- 
 ance of his wife. Injuries may be offered to a person considered 
 as a husband : citing 3 Black. Comm. 139. 
 
 In Shaws vs. Schwarzwaelder (Special Term Superior Court, 
 February, 1860, before Chief Justice Bosworth), the action was 
 by the husband for criminal conversation with his wife. An ar- 
 rest on her afiadavit of the facts, and his on information and be- 
 lief, was granted. The learned judge doubted whether it could 
 be termed an injury to the person within the subdivision, though 
 one to personal rights. But he yielded to the authorities cited ; 
 and observed that if a construction so limited be given, that an 
 order of arrest could not be made on proof of a cause of action, 
 then no ca sa could issue on the judgment. It was difficult to 
 believe that the Legislature intended to abolish this remedy. 
 
 In Hadderwuh vs. Catmur (Barnes' Notes, 61), and in Dyott vs. 
 Dunn (2 Chitty Eep. 72), a defendant was held to bail, by order, 
 in an action for criminal conversation. 
 
 In Bulloch vs. Jenkins (2 En. L. and Eq. Eep. 195), it was 
 ruled that the affidavit on which to hold a defendant to bail, in 
 
§ 1Y9, SUbd. 1.] AEEEST AND BAIL. 15 
 
 an action for criminal conversation, should properly specify the 
 amount of damages sustained ; but the court in banc refused to 
 discharge a judge's order to arrest, because the facts stated in 
 the affidavit appeared to warrant his conclusion, that damages 
 had been sustained over £20. 
 
 Seduction. — In Carter vs. Drake (10 "Wendell, 618), the defend- 
 ant was held to bail on a capias in an action for the seduction of 
 the plaintiff's daughter. 
 
 In Taylor vs. North (3 Code Reporter, 9), the action was for 
 seduction. Mr. Justice Mason, with the concurrence of his col- 
 leagues, held that the defendant could be held to bail under the 
 lT9th section, adopting the reasoning of Justice Parker in Dela- 
 mater vs. Eussell. 
 
 False imprisonment. — In Gordon vs. Upham (4 E. D. Smith, 9), 
 the action was for false imprisonment. The defendant had been 
 arrested and held to bail. Upon a motion to discharge the order, 
 he showed that he had brought an action for breach of a contract 
 to enter into partnership, and had obtained the then defendant's 
 arrest on affidavits of an intention to remove his property in or- 
 der to defraud creditors, and especially the plaintiff. The defend- 
 ant had been discharged. But, on the present motion, it was held, 
 that the facts in the original cause made a reasonable ground of 
 suspicion, a case of probable cause, which was an answer to the 
 present action. On this, and that the damages could only be 
 nominal, the defendant was discharged. 
 
 Injury to character. — ^The next case under this subdivision 
 is for an injury to character. 
 
 The actions in which compensation for an injury to character 
 is usually sought are slander, libel, and malicious prosecution, 
 where the charge has been something of a criminal nature. 
 
 In Yanderpool vs. Kissam (4 Sand. Sup. Ct. Eep. 715), the ac- 
 tion was for a malicious prosecution, and it was held that the 
 facts which are relied upon as ^rima facie evidence of a want of 
 probable cause, must be set forth in the affidavit, so as to enable 
 the judge to draw the proper conclusion of law. An affidavit 
 stating only in general terms the existence of malice and the 
 want of probable cause, was insufficient. Upon this ground, and 
 upon affidavits, on the part of the defendant, proving the exist- 
 ence of probable cause, a motion for his discharge was granted. 
 
16 AEEEST AND BAIL. [§ 179, SUbd. 1. 
 
 The case of Eoberts vs. Bayles (1 Sandf. S. Ct. Eep. 47) may 
 be usefully referred to upon the question of what is, and what is 
 not, evidence of probable cause. See also Bulkeley m. Kettletas, 
 2 Selden, 384. 
 
 Injuring, taking, detaining, or converting property. — The arrest 
 for injuring, wrongfully taking, detaining, or converting property 
 is in effect the holding to bail in the old actions of trespass, de- 
 tinue, or trover and conversion. 
 
 Before a rule adopted by all the courts in the 48th of George 
 III. the defendant might have been held to bail in trover or deti- 
 nue without a special application to the courts ; but by that rule 
 an order from one of the judges was made necessary. (Peters- 
 dorf on Bail, p. 38.) See the rule at length in 9th East, 325. 
 
 Under the Kevised Statute of 1830, trover, trespass for taking 
 personal property, trespass upon land, and replevin in the cases 
 provided by law, were bailable as of course. (2 E. S. 368, § 8, 
 subd. 3, 4.) Trespass for injuries to the person and trespass on 
 the case were bailable by special order. {Ibid. § 9.) 
 
 In Chappel vs. Skinner,' Justice "Welles observed, that the first 
 subdivision of section 179 authorized the arrest of the defendant, 
 where an action is for injuring, or for wrongfully taking, detain- 
 ing, or converting property, by which is intended an action to 
 recover damages for such injury, taking, detaining, or converting, 
 answering to our late actions of trespass, case, trespass de bonis 
 asportatis, and trover, and not an action to recover possession of 
 personal property. Cases may arise where the plaintiff has his 
 election to proceed under chap. 2, title 7 (Claim and Delivery), to 
 recover possession of the property, or to recover damages for the 
 taking or detention. Where the plaintiff has once made his elec- 
 tion he must abide by it. He has not a right to commence Ms 
 action, hold the defendant to bail, and afterwards have the prop- 
 erty delivered to him . 
 
 In the Northern Eailroad Co. vs. Carpenter (3 Abbott, 259 ; 
 13 Howard, 222), it was held, by Justice Davis, that where cer- 
 tain certificates of stock had been embezzled, and fraudulently 
 converted to the use of the defendants, there was a willful injury 
 to property, which authorized the arrest of a female under subdi- 
 vision 5. 
 
 ' 6 How. Pr. Rep. SS8. 
 
§ 1Y9, Subd. 2.] AEEEST AND BAIL. 17 
 
 In Tracy vs. Leland (2 Sandford, Sup. Ot. Rep. 729), it was 
 held that secreting and detaining a piano was not injuring prop- 
 erty within this subdivision, although breaking or damaging it 
 might have been. 
 
 The People vs. "Willett (6 Abbott's Eep. 37) decided that an 
 -action against an innkeeper, on his common-law liability, for 
 negligent loss of baggage, is not an action for injuring or wrong- 
 fully taking, detaining, or converting property, within the mean- 
 ing of section 179. In such an action, the defendant could 
 only be held to bail on proof, in addition to the facts constituting 
 the cause of action, that the defendant is a non-resident of the 
 State, or is about to remove therefrom. 
 
 Second Subdivision. — 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 oflBcer ; or by an attorney, solicitor, or 
 counselor; or by an. officer or agent of a corporation or banking 
 association, in the course of his employment as such ; 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 em- 
 ployment." , 
 
 For fine or penalty. — This clause has remained the same as it 
 •was enacted in 1848. 
 
 The 2d section of the act of April, 1831, in like manner 
 retained or authorized the right to arrest in an action for fines or 
 penalties. 
 
 A distinction appears to be taken in English cases between an 
 action on a penal statute, where the penalty is in the nature of 
 an amercement for the non-performance of a duty, or commission 
 of a prohibited act, and actions on remedial statutes, where the 
 penalty is to remunerate the injured party, and also to punish 
 the aggressor. In general, a party could not be holden to bail in 
 "the former cases.' In the latter class, bail may be required." 
 
 The distinction between the statutes is said to be this : that 
 
 ' PreBgrave vs. , 1 Comyn'a Rep. 16 ; 1 Bacon's Ab. 210; Petersdorf on Bail, 
 
 p. 36. 
 
 ' Turner vs. Warren, 2 Strange, 10T9. Carrill vs. Cochran, 12 Mod. 295. 
 2 
 
18 ABEEST AND BAIL. [§ 179, Subd. 2- 
 
 the statute is remedial where the action is brought by the party 
 injured, but penal when brought by a common informer. (2 Bl.. 
 Kep. 1227.) ^ 
 
 Promise to marry. — This clause is the same as it was passed 
 in 1848. 
 
 It has been held that it does not authorize an arrest of a female 
 who has made such a promise. It is controlled by that part of 
 subdivision 5 which makes a female liable to arrest only in the 
 cases there mentioned. (Shiefe vs. Tuppey, 3 Code Hep. 23.) 
 
 The act of April, 1831, permitted also an arrest in such a 
 case (§ 2). In Bromley vs. Town (1 Hill, 373), it was held that a 
 judge's order to arrest was necessary. The statute (2 R. S. 348, 
 § 78) had changed the rule which prevailed when the case of 
 Bunting vs. Brown (13 Johns. Eep. 425) was decided. The act 
 to abolish imprisonment for debt did not touch the question. The 
 second section excepted such promises from the first section, but 
 left the question of bail as it was before. 
 
 Money embezzled by public officer. — For money received, 
 or property embezzled or fraudulently misapplied, by a public 
 officer, in the course of his employment as such, an arrest may 
 be had. 
 
 The Code of 1848 has merely the words, " for moneys collect- 
 ed by a public officer in the course of his employment as such." 
 The clause, as it now stands, was adopted in 1849. 
 
 The act of April, 1831, authorized imprisonment " for moneys 
 collected by any public officer, or for any neglect in office." 
 
 In Peel vs. Elliott (16 Howard Pr.'Eep. 480, 481), the de- 
 fendant was in the employ of the British Government, was 
 arrested for moneys embezzled in England, and in an action by 
 an officer empowered by a British statute to sue. The affidavit, 
 stating fully the sources of the information, was sworn to by an 
 attorney here. Justice Ingraham denied a motion to vacate the 
 order, giving liberty to renew it on affidavits of the defendant. 
 Justice Davies heard a renewed motion upon affidavits on both 
 sides, and denied the application. On appeal, the question was 
 adverted to by Mr. Justice Hogeboom, but considered as not 
 arising, whether the defendant, for acts done in England, amount- 
 ing to a fraud upon the English Government, could be held to an 
 arrest here as a public officer ; or whether our statute is not lim- 
 
§ 179, Subd. 2.] AEEEST AND BAIL. 19 
 
 ited to cases of misconduct occurring within its own jurisdiction, 
 or towards its own government. It was held, after examining 
 the nature of an English extent, that the original cause of action 
 was not extinguished by it, and the present action was still one 
 to recover money or property embezzled by a public officer. 
 
 The ease of The Eepublie of Mexico vs. Arrangoiz (5 Duer, 
 604), which received much attention in the Superior Court of 
 New York, involves the point that a public officer of a foreign 
 State may be arrested in an action by that State against him. 
 If such foreign State, or its legalized officer, may sue in our 
 tribunals, it seems difficult to find a ground for excluding it from 
 all the provisional remedies attending such suit which are open 
 to other suitors. 
 
 Fraud in an attorney, &c. — A party may be arrested for 
 money received, or property embezzled or fraudulently misap- 
 plied, by an attorney, solicitor, or counselor, in the course of his 
 employment as such. 
 
 The Code of 1848 had only the clause " for moneys collected 
 by an attorney, &c., in the course of his employment as such." 
 The change to the present form was made in 1849. 
 
 Under the act of April, 1831, as originally passed, it was held, 
 in Stage vs. Stevens (1 Denio, 267, 1845), that an attorney could 
 be arrested in an action for money collected by him. This was 
 under the clause declaring that the exemption should not extend 
 to cases of actions for misconduct or neglect in any professional 
 employment. "What was said in Bohanan vs. Peterson (9 "Wend. 
 503) could not be regarded as the true meaning of the statute. 
 
 By the act of May 9, 1846, ch. 150, it was enacted that in all 
 actions upon contract for moneys received by any attorney, or by 
 any other male person, in a fiduciary capacity, the defendant or de- 
 fendants should be liable to imprisonment, in the same manner 
 as in actions for wrongs. 
 
 In Yates vs. Blodget (8 Howard's Pr. Eep. 278), it was held 
 that an attorney who resided and practiced in another State, and 
 there received moneys for his client, could be arrested here. The 
 action was founded not so much upon a breach of contract as the 
 violation of professional duty. 
 
 Fraud of an officer or agent of a corporation. — An arrest 
 may be had for money received or property embezzled by an offi- 
 
20 AEEBST AND BAIL. [§ 179, Subd. 2. 
 
 cer or agent of a corporation or banking association, in the course 
 of bis employment as such. 
 
 The Code of 1848 did not contain this clause. It was added 
 in 1849, and has so continued since. 
 
 In Crook m. Jewett (12 Howard Pr. Eep. 19), Mr. Justice 
 Morris held that a fraudulent or illegal sale of coal mines and 
 steamships for an inadequate price, and apparently for the indi- 
 yidual benefit of the officers, was a misapplication and embezzle- 
 ment of the property of the corporation by the officers, and justi- 
 fied an arrest under the second subdivision. 
 
 Agent, factor, &.c. — Fiduciary capacity. — "For money re- 
 ceived, and property embezzled, or fraudulently misapplied, by 
 any factor, agent, broker, or other person in a fiduciary capacity," 
 an arrest may be granted. 
 
 The Code of 1848 had only the clause, " for moneys collected 
 by an attorney, solicitor, or counselor, or any person in a fiduciary 
 capacity." The amendment of 1849 added the enumeration of 
 "factor, agent, and broker." The subdivision has remained un- 
 changed in this particular. 
 
 The first case which occurs under this clause is the one of a 
 mere reception of money by an agent, &c., in a fiduciary capacity, 
 apart from any fraud. The case of Sehadle vs. Chase (16 Howard 
 Eep. 413) is an example of this class. The defendant received the 
 plaintiff's money for a special purpose. The defendant stated an 
 agreement, by the plaintiff, that he might apply a portion to an- 
 other person's claim. The demand revoked the agency for either 
 purpose, and warranted an arrest, though there was no fraud or 
 intentional breach of trust. 
 
 Burchans vs. Casey (4 Sandf. Sup. Ct. Eep. 757) is of a similar 
 character. Money was delivered to the defendant to apply in 
 payment of rent, which he promised to do, and neglected. His 
 arrest was sustained at General Term. 
 
 In Turner vs. Thompson (2 Abbott's Eep. 444) the plaintiff 
 employed the defendant to make sales of his goods, and to render 
 weekly returns of sales, and pay over the proceeds, which he neg- 
 lected to do. Mr. Justice Da vies considered the case to be within 
 the letter and spirit of the section, and supported an arrest. 
 
 StoU vs. King (8 Howard's Eep. 298) was a case of accounts 
 entrusted to the defendant to collect and pay over upon demand, 
 
§ 179, Subd. 2.] AEEEST AND BAIL. 21 
 
 reception of moneys, demand of the amount, and refusal. Justice 
 Harris treats it as a case of services rendered by an agent in a 
 fiduciary capacity. He was acting under a special trust. The 
 principal had confided in the man rather than in his ability to 
 pay. " I think the criterion in every such case is, whether the 
 specific moneys received ought in good faith to have been kept 
 and paid over to the employer ; or, whether the defendant, upon 
 receiving such moneys, had the right to use them as his own, 
 holding himself accountable to the principal for the debt thus 
 created." 
 
 In Noble m. Westcott (4 E. D. Smith, 139), the affidavits 
 stated substantially that the plaintiffs remitted a sum of money to 
 the defendants, with express instructions to use the same in the 
 purchase and shipment of sugar ; that it was to be employed in 
 Iio other way ; and that a portion of it had been misappropriated. 
 An arrest was sustained. 
 
 Frost vs. McCarger (14 Howard, 131) was the case of a con- 
 tract by which the defendant received fruit trees from the plain- 
 tiff, to deliver to persons in another State, who had agreed to pur- 
 chase them. The defendant was to receive the money, and, as 
 collected, to remit the same by draft on New York to the plain- 
 tiffs. He was held to be an agent in a fiduciary capacity. There 
 was a special trust and confidence reposed in him, and he was 
 liable to be arrested. The plaintiff had alleged embezzlement, 
 and the defendant asserted that he had lost the money. The 
 learned Judge (Marvin) was disinclined to pass upon this ques- 
 tion, on contesting affidavits upon these issues. 
 
 In Goodrich vs. Dunbar (17 Barbour, 644), the defendant was 
 consignee and agent of a ship owned by the plaintiffs, which 
 was sold, and the proceeds received by the defendant. His 
 duties were to take general charge of the ship, pay all ex- 
 penses relating to her, sell her, pay expenses of sale, and account 
 to the plaintiffs, not for the whole balance of the proceeds less 
 his commissions, but for the balance he might owe on general ac- 
 count. 
 
 It was held that the plaintiffs meant to trust the defendant as 
 their debtor, rather than as an agent, and that the case was not 
 within the 179th section. 
 
22 AEKEST Am) BAIL. [§ 1T9, subd. 3. 
 
 In Bassing vs. Thompson (15 Howard, 9 ; 6 Duer, 696, Gen- 
 eral Term Superior Court), the defendant was a banker, and was 
 employed by the plaintiffs as such, to receive their deposits, col- 
 lect their bills, and credit the amount. It was agreed that he 
 might use the moneys, paying the drafts on him when presented, 
 and allowing interest on the balances at five per cent. The agree- 
 ment was acted under, and, on the 13th of August, 1857, the 
 plaintiffs remitted a draft for $4,000, payable the 25th of August, 
 to be collected and passed to their credit. The defendant re- 
 ceived it on the 15th of August, and collected the amount on the 
 25th, and used the money. On the 24th he knew he was insolv- 
 ent, and suspen4ed on the 25th, after collecting the draft. 
 
 It was held that the money was not received by the defend- 
 ,ant in a fiduciary capacity. 
 
 The relation between the parties was that of debtor and cred- 
 itor, not that of trustee and cestui que trust. 
 
 It was also held that he had not wrongfully converted the 
 plaintiff's property ; nor was he guilty of a fraud in contracting 
 the debt or incurring the obligation for which the action was 
 brought ; or in disposing of the property, the proceeds of the 
 draft. An order vacating an order of arrest was affirmed. 
 
 In Schudder vs. Shields (lY Howard, 420, General Term, 
 Sixth District), the plaintiff sent to the defendant, in New York, 
 butter to be sold on commission. Sales were made, the amount 
 received, and the defendant neglected to remit. He received the 
 money with other money received in his business, and passed to 
 an assignee what money he had at the time of such assignment. 
 The Court, on appeal, affirmed an order denying a motion to 
 vacate an arrest. There was a trust reposed and not a credit 
 given. Confidence was reposed in the integrity of the man, 
 rather than in his pecuniary ability. 
 
 In Bull vs. Melliss (9 Abbott, 58), the firm in which the de- 
 fendant was a partner had received funds of the plaintiff from 
 his agent, having been previously requested by the plaintiff to 
 remit the same, which they promised to do. They remitted a 
 bill of exchange on a branch of their own house, which was ac- 
 cepted, but not paid. The defendant was held liable to an arrest, 
 by the court at General Term, before Justices Roosevelt, Ingra- 
 bam, and Pratt, the latter dissenting. 
 
§ 1T9, Subd. 3.] AEEEST AND BAIL. 23 
 
 Third Subdivision. — 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 he so found or taTcen, or with the intent to deprive the plain- 
 tiff of the henefit thereof." 
 
 This provision, in 1848, was as follows : 
 
 " In an action to recover the possession of personal property 
 unjustly detained, where the property shall not hsffQ been deliv- 
 ered to the plaintiff, or security given therefor as provided in the 
 next chapter " (that of Claim and Delivery). 
 
 The section was amended in 1849, and was then in its present 
 form, except the clause above italicized. In 1851 that clause 
 was added, and the section has remained the same to this time. 
 
 It is to be noticed that the bail which is given when an arrest 
 is had under this subdivision, is different from that under the 
 other subdivisions. 
 
 It must be (by section 187) that which is provided by section 
 211. That section requires an undertaking, with two or more 
 sureties, for the delivery of the property to the plaintiff, if such 
 delivery is adjudged, and for the payment to him of such money 
 as may, for any cause, be recovered against the defendant. 
 
 In Mulvey vs. Davison (8 Howard Pr. Ill), the action was to 
 recover possession of personal property. The sheriff certified his 
 service of the papers, and demand and refusal, and "that the 
 property has been concealed or disposed of, so that he could not 
 take the same." On this, and an affidavit of wrongful taking, 
 the defendant had been arrested. 
 
 On motion to vacate the order, it appeared that the defendant 
 was a police-clerk ; that the property was taken from a person 
 on a charge of stealing, and delivered to the property-clerk of the 
 police court, and had not since been in the possession of the de- 
 fendant. The bail was to be given pursuant to section 211. It 
 was held, by Mi-. Justice Bosworth, that both the certificate and 
 affidavit were defective, in not stating the intent that the prop- 
 erty should not be found, &c. Again, that the property was not 
 an the possession or control of the defendant, either at the time 
 
24 ABEE8T AND BAIL. [§ 179, Subd. 4. 
 
 the action was commenced, or when the sheriff demanded it, or 
 since. 
 
 Eoberts vs. Eandall (3 Sandf. Sup. Ct. Eep. TOT), and Kemin vs. 
 Nagle (1 Code Repr. N. S. 219 ; 1 E. D. Smith, 258), are cited. 
 The first was a decision of the Superior Court, and the second 'of 
 the Common Pleas, both at General Term. They hold, explicitly, 
 that, to entitle the plaintiff to maintain an order of arrest under 
 this subdivision, it must have been true, as a present fact, that the 
 property claimed was detained by the defendant at the time th& 
 suit was commenced, or at all events when the action was moved 
 by the plaintiffs, or some other assertion of their claim to the 
 property was made. " The whole scope of the chapter indicates 
 that the Legislature meant to apply it to a case of actual deten- 
 tion, by the defendant, and not a fictitious or constructive one 
 founded on the mere fact that, by the defendant's act, the plain- 
 tiffs had lost the possession." 
 
 In Ward vs. Woodburn (27 Barbour, 346) the Supreme Court 
 of the First District, at General Term, referring to Roberts vs. 
 Randall, say that, upon a review of that question in the Supreme 
 Court, that case has been substantially overruled ; and it has been 
 held that the present remedy for the recovery of personal prop- 
 erty is as full, general, and complete as replevin was under the 
 Revised Statutes ; and that the action will He, although the de- 
 fendant, before suit, has parted with the property. 
 
 The elaborate opinion of Justice Hand, in Brockway vs. Bur- 
 nap (16 Barbour, 309), is to the same effect. 
 
 The case in which an order of arrest can be made under this 
 subdivision must be one distinctly for a recovery specifically of 
 the property. If the relief asked is a judgment for a given sum 
 for damages, the order under this clause cannot be supported. 
 
 In Seymour vs. Yan Curen (18 Howard, 94), the complaint 
 was for the wrongfully taking, carrying away and converting a 
 horse to the use of the defendants. The relief demanded was a 
 judgment for $1,500 damages besides costs. This determined the 
 character of the action ; and it was not one to recover possession 
 of personal property. An order of ari-est under this subdivision 
 could not be supported, although one under subdivision 1 might 
 have been. An order of arrest was set aside. 
 
§ 1T9, 8ubd. 4.j AEEE8T AND BAIL. 2& 
 
 FouETfe StnsDivisioN. — The defendant may be arrested — 
 (1st) " When the defendant has been guilty of a fraud in con- 
 tracting the debt, or incurring the obligation for which the action 
 is brought ; or (2d) in concealing or disposing of the property, 
 for the taking, detention or conversion of which the action is 
 brought." 
 
 There was no such provision as this in the Code of 1848. It 
 was enacted in that of 1849, and has continued in its present form 
 from that time. 
 
 Fraudulent contracting of the debt, &c. — 1st. The first clause 
 of this subdivision corresponds with the fourth subdivision of sec- 
 tion 4 of the act of 1831, " that the defendant fraudulently con- 
 tracted the debt, or incurred the obligation, respecting which such 
 suit is brought." 
 
 The rules upon this subject — what will constitute such a fraud 
 in the contracting of the debt — are nice and complicated. 
 
 It may be safely stated that mere insolvency at the time,, 
 known to and believed in by the party to the contract, is not 
 enough; nor mere concealment of this fact from the vendor. 
 " The proposition that a purchaser upon credit stands in a confi- 
 dential relation to his creditor, so as to bind him to disclose his 
 situation without any inquiry by the seller, is not sustained by 
 any sufficient authority. The test inquiry in such cases is, ' Did 
 the party purchase the goods in question with the intention not 
 to pay for them ?' " (Hall vs. Naylor, 6 Duer Kep. '71.) 
 
 The rule thus laid down was substantially affirmed in the 
 same case by the Court of Appeals. Judge Comstock says : "It 
 does not appear that Kerr & Co., in purchasing the goods in 
 question, made any representation of their ability to pay for them.. 
 If, however, they concealed the fact of their insolvency with a 
 design of procuring the goods without paying for them, it was a 
 fraud which rendered the sale void. On the trial of such an 
 issue, the quo animo of the transaction is the fact to be arrived 
 at. If, however, the purchaser, at the time of a new purchase, is 
 not only insolvent and knows himself to be so, but has performed 
 an open and notorious act of insolvency by breaking up his busi- 
 ness and assigning his property, it is his duty to communicate 
 that fact, and the violation of that duty is a fraud." (Mitchell vs~ 
 Warden, 20 Barbour, 253.) 
 
26 AEEEST AlfD BAIL. [§ 179, SUbd. 4. 
 
 But express representations of ability to pay, made at the 
 time, and sufficient to induce, and which did induce the credit, 
 ■will be eyidence of an intended fraud. The representations must 
 be false, and must be known to the party making them to be so.' 
 
 " It IS competent to show that the party accused was engaged 
 in other similar frauds, at or about the same time. The trans- 
 actions must be so connected in point of time, and so similar in 
 their other relations, that the same motive may reasonably be im- 
 puted to them all." ' 
 
 " "Where the question is, whether goods have been procured by 
 a fraudulent suppression of facts material to credit given, it will 
 be competent to prove that in other instances they have been ob- 
 tained by actual misrepresentations concerning the same facts. 
 The concealment in the one case, and the false representations in 
 the other, are evidence of a fraudulent design, common to both 
 transactions, of procuring goods without the ability or intention 
 to pay for them." ' 
 
 In the case of Crandall vs. Bryan (5 Abbott, 162), some points 
 of importance were determined ; and although the case was be- 
 fore a single judge only (E. D. Smith, Jr.), it seems to me the 
 propositions are either clearly law, or extremely well supported. 
 
 Fraudulent representations and deceit, accompanied by dam- 
 age, constitute a good cause of action in respect to a sale of lands, 
 as much as in respect to personal property. They did so before 
 the Code. (1 Comstock, 308.) 
 
 The action would then have been strictly one upon the case. 
 It was not one under the Code, of debt or contract, and the right 
 of arrest could not be sustained upon the first clause of this sub- 
 division or class of actions. 
 
 Formerly, in respect to many rights of action, there was an 
 election whether the form of the action, should be assumpsit or 
 case. "Where, in cases of fraud, the remedy would have or might 
 have been assumpsit, an arrest can now clearly be made ; for liat 
 is an action where the defendant " has been guilty of fraud in con- 
 
 ' Freeman vs. Leland, 2 Abbott Rep. 479 ; Wenzer vs. De Baum, 1 E. D. Smith, 
 -261 ; Gaffney vs. Burton, 12 Howard Pr. Rep. 516. 
 
 ' Opinion of the Court of Appeals in Hall vs. Naylor ; Gary vs. Hotailing, 1 Hill, 
 311, and cases. 
 
 ' Ibid. 
 
§ 179, Subd. 4.] AEEEST AND BAIL. 27 
 
 traeting the debt," &c. But where the form of the remedy would 
 have been case under the old system, whether the defendant can 
 be arrested depends upon the proper construction of the word 
 dbUgaUon. 
 
 That word was equivalent to legal liability or legal duly. It 
 included all the cases beyond those which would be embraced in 
 the first clause, where the fraud was committed in contracting 
 the debt for which the action was brought ; where the action 
 would not rest upon the contract, but would rest upon the legal 
 duty. Wherever fraud and damage give a right of action, the 
 law casts a liability, and creates an obligation. 
 
 These principles of the learned judge were applied to a case 
 in which there had been an exchange of lands by deeds, the de- 
 fendant representing that he had a good title to the lands he con- 
 veyed. It appeared that his statements were false and fraudulent, 
 and the action was to recover damages, the value either of the 
 lands given, or those which should have been received. 
 
 The case of "Whitcomb vs. Solomon & Booth (16 Howard, 
 533) was before the same learned judge. He held that if the 
 representation which induced the credit for the goods (of a cer- 
 tain person being his partner who was of credit) was false in fact, 
 and which he knew at the time to be false, it would not do for 
 the defendant to say that he did not intend to defraud the plain- 
 tiffs at the time. They were in fact defrauded. They gave credit 
 to a false statement. 
 
 So, in Scudder vs. Barnes (16 Howard Eep. 634), it was held 
 that a representation, by the defendant, that he was perfectly 
 good and responsible for all the goods he might purchase, im- 
 plied that he had sufficient property, beyond all debts and liabil- 
 ities, to pay for the goods he proposed to purchase. This being 
 followed in a little over a month by a general assignment show- 
 ing a deficiency of near fifty per cent., and no satisfactory ac- 
 count being given of the change in his position, showing how his 
 representations could have been true, the inference of fraud was 
 clear. 
 
 In Mitchell vs. Warden (20 Barbour Eep. 253, General Term, 
 7th District) these propositioHS were laid down : The law does not, 
 in ordinary cases, impose upon the purchaser of property the duty 
 of disclosing to his seller, at or before the sale, the state of his 
 
28 AEEEST AND BAIL. [§ I'^^j Subd. 4. 
 
 pecuniary circumstances, however desperate they may be, and 
 are known by him to be. For a fraudulent misrepresentation, by 
 the purchaser, of important facts in respect to his circumstances, 
 accompanied with damage, the law affords a remedy ; the sale 
 may be avoided, and an action to recover damages for the fraud 
 will lie. The rule that the purchaser is not bound to disclose his 
 insolvency is applicable notwithstanding there has been a long 
 course of dealings between the parties, in the course of which 
 credit has been given to the purchaser, and he had punctually 
 performed his engagements, — his insolvency having occurred 
 during these dealings. 
 
 In' Morrison vs. Garnet (7 Abbott, 425), the defendant had 
 been accustomed frequently to purchase from the plaintiffs, for 
 cash, bills of exhange for remittance to Europe in his business. 
 He became insolvent, and procured the plaintiff to sell him bills 
 to a large amount, on credit, concealing his insolvency, though 
 making no direct false representations as to his condition, or the 
 use to which he meant to put the bills. He then sold them in 
 the market. It was held that the purchase was fraudulent, and 
 an arrest allowed. 
 
 In Birchell vs. Strauss (8 Abbott Eep. 53, General Term, 1st 
 District), it was ruled that a purchase of goods upon credit, on 
 representations of solvency not true in point of fact, but believed 
 to be true, was not enough to warrant an arrest. Gaffney vs. 
 Burton (12 Howard, 516) was cited and approved. 
 
 Fraudulent contract of debt by partners. — "Whether one of 
 several partners can be arrested, in a case in which goods have 
 been obtained upon fraudulent representations by his copartner, 
 has been the subject of contrariety of opinion and decision. 
 
 In an anonymous case (6 Abbott Pr. Eep. 319), in the Com- 
 mon Pleas, it was held that one partner could be arrested for the 
 fraud of his associate. But in the subsequent case of The Hano- 
 ver Company vs. Shelden (9 Abbott, 240), the same learned Judge 
 explained that decision, and held that it proceeded upon the 
 ground of possession, control, and demand of the property in and 
 from all. He decided that, as the action was brought for the price 
 of the goods, affirming the contract, the partner could not be 
 arrested in the absence of proof of his knowledge of the fraud, 
 or that he had in some way ratified the transaction. 
 
§ 1Y9, Subd. 4.] AEREST AND BAIL. 29 
 
 , So, in Wetmore vs. Earle (Supreme Court, Dec, 1868, 9 Ab- 
 bott 58, note), it was held by Mr. Justice Davies, with the con- 
 currence of Mr. Justice Ingraham, that the partner who was 
 innocent of the false representations by which goods were ob- 
 tained could not be arrested. 
 
 In the case of Townsend vs. Bogart and two others (Superior 
 Court, General Term, February, 1860), the subject was much 
 discussed. The defendants had been partners. Goods were ob- 
 tained from the plaintiffs by misrepresentations and fraudulent 
 practices of the partners Jeffries and Jackson. All were arrested, 
 and Bogart moved, on the plaintiff's affidavit alone, for his own 
 discharge. It did not affirmatively appear that Bogart was a 
 party to, or cognizant of, the fraudulent representations to induce 
 the sale and delivery of the goods, or the disposition subsequently 
 made of them. Neither the contents of the siimmons or com- 
 plaint were before the court. The affidavit stated that the action 
 was brought to recover the price of goods sold. 
 
 Mr. Justice Moncrief had refused to discharge Bogart from 
 the arrest, holding that enough appeared to warrant the inference 
 that the proceeds of the goods thus obtained by fraud, were used 
 for the benefit of the partnership ; and it was not shown that 
 Bogart was not aware of the whole transaction. 
 
 Upon appeal. Chief Justice Bosworth held that the firm had 
 received the goods and disposed of them. As they were obtained 
 by fraud, trover, or an action on the case for the deceit and fraud, 
 would lie against all ; although Bogart, as matter of fact, -was 
 ignorant of it. (Hawkins vs. Appelby, 2 Sand. Supr. Ct. Eep. 
 421 to 429 ; 1 Metcalf, 560.) 
 
 By the rule before the Code, each partner could have been 
 held to bail. (2 K. S. 348, § 8, subd. 3.) 
 
 The form of the action, as stated in the affidavit, did not pre- 
 clude the supposition that the complaint would make out such a 
 case as would justify an arrest under section 179, subd. 1, for 
 wrongfully taking or converting property. 
 
 He thought the defendant Bogart could have been held to 
 bail under subd. 4 of section 179, where the defendant had been 
 guilty of a fraud in contracting the debt or incurring the obliga- 
 tion. The fraud of one partner is so far the fraud of all as that an 
 action will lie against all for it ; and all are liable for the dam- 
 
30 AKEEST AND BAIL. [§ 1T9, SUbd. 4. 
 
 ages caused. No just distinction existed between this liability 
 and a liability to be arrested upon the same state of facts. The 
 phrase " when the defendant has been guilty of a fraud," desig- 
 nates and includes all who are to be deemed as contracting the 
 obligation through fraud. 
 
 " So long as the law imputes the fraud to him, and for the 
 purpose of the civil remedy of the party defrauded, declares it to 
 be his fraud, I think he is as liable to be arrested and held to 
 bail, as if he had committed it in intent and in fact." 
 
 Upon the facts, also, the Chief Justice considered that it 
 would be a great stretch of credulity to beliere that Bogart was 
 ignorant of the repeated applications for payment made at the 
 store through a period of six weeks, and did not learn, if he did 
 not know when the goods were bought, that they were procured 
 by fraud. 
 
 Mr. Justice "Woodruff stated that he was not prepared to hold 
 that, where a plaintiff affirms the contract of sale, and founds his 
 action thereon, and shows the fact of the partnership, and pro- 
 ceeds on the joint liability of the defendants for the price, each 
 of the partners is liable to be held to bail because the purchase 
 was obtained by the fraud of one of them. 
 
 The only provision of the Code under which, in such a case, 
 the defendants could be held, was the 4th subdivision of section 
 179 — " when the defendant has been guilty of a fraud in con- 
 tracting the debt for which the action is brought." This did not 
 mean that every defendant who is liable for the debt would be 
 liable to an arrest, when one only committed the fraud and the 
 others are innocent. The action being in affirmance of the sale, 
 he only who was guilty of the fraud could be arrested. 
 
 Mr. Justice Kobertson concurred substantially in these views. 
 
 Mr. Justice Hoffman was of opinion that the order could be 
 supported under the view taken by the Chief Justice, viz., that, 
 notwithstanding the language of the affidavit, the complaint 
 might be for wrongfully taking and detaining. That, considering 
 the case as governed by the 4th subdivision of the lT9th section, 
 he thought that proof of fraud by one partner in obtaining the 
 goods, proof of their going into the possession of the firm, proof 
 of such an agency in the business of the concern as showed or 
 raised a strong presumj^tion of knowledge of the reception of the 
 
§ 179, SUbd. 5.] AEEEST AND BAIL. 31 
 
 goods, and proof of their disposition for the benefit of the firm, 
 made a case sufficient, prima facie, to warrant the arrest of a part- 
 ner not directly charged with an actual share in the fraud. It 
 was enough, at least, to drive the defendant to show affirmatively 
 his own ignorance of it, his disavowal of it when known, and an 
 attempt to redress it, if at all in his power. 
 
 The order below was affirmed. 
 
 The motion to discharge Bogart was subsequently renewed on 
 affidavits on both sides, and denied upon a strong preponderance 
 of testimony as to his knowledge of the means by which the pur- 
 chase was made. 
 
 In Curran vs. Allen (21 Howard's Pr. Eep. 114) this decision 
 of the Superior Court was cited and approved. 
 
 Fifth Subdivision — The defendant may be arrested — 
 " "When the defendant has removed or disposed of his prop- 
 erty, or is about to do so, with intent to defraud his creditors." 
 
 The corresponding clause in the statute of 1831 is : " That he 
 has assigned, removed, or disposed of, or is about to dispose of, 
 any of his property with intent to defraud his creditors." (§ 4, 
 subd. 3.) 
 
 The section of the Code as it now stands was adopted in 1849. 
 
 The case of Hathorn vs. Hall (4 Abbott, 227) contains an ex- 
 position of this provision. A motion to vacate an order of arrest 
 was made on the plaintiff's own- affidavit. The learned judge^ 
 put the question thus : " Do the statements furnish satisfactory 
 evidence that the defendant is about to remove his property out 
 of the jurisdiction of the court, or to dispose of it with intent to 
 defraud his creditors ?" 
 
 "AUtl^at the plaintiff states on the subject is derived," he 
 says, " from declarations made by the defendant in conversation. 
 Are these declarations inconsistent with any other intent than that 
 imputed to the defendant ?" 
 
 " The defendant refused to pay ; said he never intended to 
 pay ; that he had property, which he refused to transfer as collat- 
 
 ' Justice Peabody, Special Term, Ist District. 
 
32 AEEEST AND BAIL. [§ 179, Subd. 5. 
 
 eral to the debt. He spoke about selling his horses and car- 
 riages ; declined to confess a judgment ; said it would take plain- 
 tiff twenty days to get it ; said he did'nt intend to pay, and that 
 plaintiff had no prospect of getting it. All this does not neces-- 
 sarily show, or tend thereby to show the intent which constitutes 
 the gravamen of the charge here." 
 
 In Spies vs. Joel (1 Duer, 609), on motion to vacate an order 
 of arrest, it appeared that the defendants had made an assign- 
 ment of all their property for payment of debts, enumerating the 
 creditors, but not providing for any surplus which might remain. 
 
 It was shown that the preferred debts largely exceeded the 
 value of the property assigned. It was held that, conceding the 
 assignment to be void under the statute, it was only construct- 
 ively so ; and proof of actual intent, in all cases in which fraud is 
 charged, ought to be required to justify an order of arrest. The 
 omission could raise a presumption only, and this was fully met 
 by the fact of the insufficiency of the property to pay the debts, 
 and that being known to the defendants at the time. 
 
 This case is cited and acted upon in Birchell vs. Strauss (8 
 Abbott, 33), where numerous objections were taken to an assign- 
 ment, and among them that there was no change of possession of 
 the assigned estate. 
 
 In Vredenburgh vs. Hendricks (17 Earbour's Rep. 179), Mr. 
 Justice Davies said : " The plaintiff is to establish his charge by 
 satisfactory evidence in the form of an affidavit. Without such 
 an affidavit the judge obtained no jurisdiction over either the 
 subject-matter or the party. Evidence tending to establish the 
 charge, even though it might be regarded as slight and uncer- 
 tain, would perhaps be enough to sustain the warrant upon the 
 question of jurisdiction. But there must be some legal evidence 
 calling upon the judgment of the officer as to its sufficiency. 
 Two facts only were relied upon as furnishing this evidence. 
 The first, that the debtor had a legacy of $600 left him, which 
 he refused to appropriate in payment ; and next, that when pro- 
 cess was served, he declared that he would not pay one cent of 
 the plaintiff's demand. He was under no legal obligation to 
 apply the legacy, at least before judgment. This refusal did not 
 convict him of an actual or meditated' fraud in the disposition of 
 his property. The declaration to the officer was but a refusal to 
 
§ 179, Subd. 5.] AEEEST AND BAIL. 33 
 
 pay the debt. It may have been indicative of dishonesty, but 
 did not tend to establish the specific charge on which the com- 
 plainant relied. 
 
 The case of Palmer vs. Kaufman, before Justice Hoffman, of 
 the Superior Court of New York, January 4, 1864, raised some 
 interesting questions. The defendant was, in l^ovember, 1853, a 
 trader in Thomaston, Maine, and owner of a stock of goods in a 
 store there. He secretly withdrew nearly the whole of such stock, 
 keeping up an outward show at the windows and on the shelves, 
 calculated to deceive dealers. He sent some of the goods to New 
 York. He declared an intention of being absent a few days, and 
 locked his doors. Upon being opened by the creditors, the trick 
 was discovered. The debt to the plaintiffs had been contracted 
 in Boston, where they resided. In December, 1853, the defendant 
 was arrested in New York, and • a motion to discharge him was 
 denied. It was considered that a citizen of one State was entitled 
 to all the remedies supplied in any other State to its own citi- 
 zens ; and even if a debtor was exempt from imprisonment in the 
 State where the debt was contracted, he might be arrested in an- 
 other where it was allowed. 
 
 But, in Blason vs. Bruno (21 Howard's Pr. Eep. 112), it was 
 decided that the offence of disposing of property to defraud cred- 
 itors, committed in a foreign country, between foreigners, could 
 not authorize the arrest of the party in this State, althougb he 
 had brought the property with him. There was nothing in the 
 section of the Code referred to which in any manner warranted 
 the supposition that it was intended to apply to acts committed 
 by foreigners in a foreign country. 
 
 A different rule exists when the defendant takes the property 
 of another unlawfully in a foreign land and brings it here. 
 
 Arrest of female, — " No female shall be arrested in any ac- 
 tion, except for a willful injury to person, character, or prop- 
 erty." 
 
 The Code of 1848 (§156) was as follows : "But no female 
 shall be arrested in any action arising on contract, or in any 
 other action, except for a willful injury to person, character, or 
 property." . 
 
 In 1849 the clause was altered to its present form. 
 
 A married woman was, before the Code, in'general, exempted 
 3 
 
34: AKEE8T AND BAH. [§ 179, BTlbd. 6. 
 
 from arrest. If she was arrested singly or jointly with her hus- 
 band, she was to be discharged on common bail.' 
 
 In an anonymous case (1 Duer, 613), it was held that, in an 
 action of assault and battery against husband and. wife, charged 
 to have been committed by the wife alone, the Code had not al- 
 tered the rule of the common law which exempted a married 
 Avoman from arrest in all cases ; and the Code did not authorize 
 the arrest of the husband for the tort of the wife, or for her con- 
 tract. 
 
 In Ferguson vs. Clayworth (2 Dowl. and Lowndes, 165), under 
 the English act, it was ruled that a married woman could not be 
 arrested, unless she had separate property. But if the marriage 
 takes Y>^&ce pendente lite, it seems she may be taken. (Thorpe vs. 
 Argles, 1 Dowl. and Lowndes, 831.) 
 
 In Tracy vs. Leland (2 Sand. Sup. C. Eep. Y29) a piano had 
 been concealed or removed by a female defendant, so that it 
 could not be found by the sheriff. It was held not to be an in- 
 jury for which an arrest could be sustained. 
 
 If it had been broken or damaged intentionally, it would have 
 been different. 
 
 Starrs vs. Kent (2 Code Eep. 30) appears adverse to this de- 
 cision. It is cited and commented upon by Mr. Justice Mason in 
 Tracy vs. Leland. 
 
 In the iNorthern Eailway of France vs. Cashentier (13 How- 
 ard, 222), shares of a railway company, with coupons attached, 
 were held to be. property within the Code, and the assisting a 
 party in taking them from the owner, and converting them into 
 money, was a wilful injury to property, for which a female could 
 be arrested. 
 
 Shiefe vs. Tuppey (3 Code Eeporter, 23) was an action against 
 a female for a breach of a promise to marry, and it was held she 
 could not be arrested. 
 
 The provision of the Eevised Statutes of 1830 (2 E. S. 428, 
 § 8) was, that no female should be imprisoned on any process in 
 any civil action founded on contract. 
 
 It has been held that where a married woman had been sued 
 
 ' Tidd's Practice, Vol. I. 26, and cases ; 3 Cowen, 339 ; 1 Barn, and Aid. 166 ; 
 BurriU'a Practice, Vol. I. p. 90, and cases. 
 
§ 1Y9.] AEEEST AND BAIL. 35 
 
 and arrested as 2ifeme sole, the court will not as a matter of course 
 discharge her on motion, upon filing common bail, if she obtained 
 the credit pretending she was single, or is sued as acceptor on a 
 bill. (Per Bosworth, Justice, in Genet vs. Dusenbury, 2 Duer, 
 680, citino; Pearson vs. Meadon, "Wm. Bl. Eep. 904 ; Partridge vs. 
 Clash, 5 T. E. 194 ; Eichardson vs. Carlan, 2 Mass. 210 ; Jones 
 vs. Lewis, 1 Taunton, 55 ; Mores vs. Eichardson, 8 Bar. and Ores. 
 421, which was after judgment and arrest on a ca. sa. ; and Big- 
 non vs. Jones, 15 Mees. and "Welsby, 566, which was of the same 
 character.) 
 
 The case in which these authorities were referred to, was one 
 of a judgment by default against a married woman, who had 
 omitted to plead coverture, and had been taken on execution. 
 
 It may be questioned whether the principle of these cases can 
 apply, under the peremptory language of the Code, to a case of 
 arrest at the commencement or during the pendency of an action. 
 
 Privileges and Exemptions. 
 
 Senators, Representatives, &c. — Senators and Eepresentatives 
 in Congress are exempted from arrest during their attendance at 
 the session of their respective houses, and in going to and return- 
 ing from the same, in all cases, except for treason, felony, and 
 breach of the peace. (Art. I. § 6, Constitution of the United 
 States.) 
 
 Members of the Legislature of the State of New-York are 
 privileged from arrest on civil process, during their attendance at 
 the session of the house to which they belong, except upon pro- 
 cess issued in any suit for a forfeiture, misdemeanor, or breach of 
 trust in any office, or place of public trust. (1 E. S. 154-6.) This 
 privilege extends for the period of fourteen days previous to any 
 session, and also while going to or returning from such session, 
 provided the time of such going or returning does not exceed four- 
 teen days. (Ibid. § 7.) So during an adjournment, not exceeding 
 fourteen days, and while absent on leave. No officer of either house 
 may be arrested while attending upon the house. (Ibid. § 10.) 
 
 In Corey vs. Eussell (4 Wendell, 204) it was held, that the 
 privilege from arrest did not extend to the case of a member re- 
 turned home, though fourteen days had not expired. 
 
36 AEEEST AND BAIL. [§ 179. 
 
 Military. — No person belonging to the military forces of the 
 State shall be arrested on any civil process while going to, re- 
 maining at, or returning from, any place at which he may be 
 required to attend for election of officers or other military duty. 
 (Laws 1858, ch. 129, § 17 ; 3 K S. 5th ed. 771.) 
 
 Witnesses. — Every person duly and in good faith subpoenaed 
 as a witness to attend any court, officer, commissioner, or ref- 
 eree, or summoned to attend any judge, officer, or commissioner, 
 in any case where such attendance may be enforced by attach- 
 ment or by commitment, shall be exonerated from arrest in any 
 civil suit while going to the place where he shall be required by 
 such subpoena to attend, while remaining at such place, and while 
 returning therefrom. (2 E. S. 402, § 63.) 
 
 The court or officer, before whom any person shall in good 
 faith have been subpoenaed to attend as a witness, shall dis- 
 charge such witness from any arrest made in violation of the 
 last section ; and if such court shall have adjourned before such 
 arrest was made, or before the application for such discharge 
 be made, any judge of such court shall have power to discharge 
 the witness. (Ibid. § 69.) 
 
 Every arrest of a witness made contrary to the foregoing pro- 
 visions shall be absolutely void, and shall be deemed a contempt 
 of the court issuing the subpoena. (Ibid. § 66.) 
 
 It was held, in Stewart vs. Howard (15 Barbour's Eep. 26), 
 that, as the privilege is personal, it may be waived, and that put- 
 ting in bail under section 187 was a waiver of the exemption. 
 Had the witness claimed the privilege, the officer before whom he 
 was under examination could have discharged him. 
 
 In Cole vs. McClellan (4 Hill, 60), it was held that the party 
 must be in attendance strictly as a witness. "Where a counselor 
 was in attendance before an examiner as counselor, and had been 
 arrested, he could not claim exemption as a witness, althoiigh the 
 next day he was called and examined as a witness. 
 
 In Hardenbrook's case (8 Abbott's Eep. 416) the party had 
 been regularly subpoenaed and examined before a referee. On 
 a subsequent day he attended, on the request of the attorney, to 
 testify further. He was arrested, not in the referee's office, but 
 while he was attending at the attorney's office, preparatory to his 
 examination. It was held that the •statute only exempted a wit- 
 
§ 179.] AEEEST AND BAIL. 37 
 
 ness when he was attending under compulsion of a subpoena, not 
 upon a voluntary appearance. 
 
 Voluntary foreign witnesses are privileged from arrest. 
 
 In Seaver vs. Eobinson (3 Duer, 622), a resident of another 
 State came voluntarily into this State to be examined as a wit- 
 ness in a cause pending here. While waiting for the cause to be 
 called, it being on the day calendar, he was served with a sum- 
 mons to appear in an action. On motion to set it aside, it was 
 insisted that he was only exempted from an arrest, but not from 
 ordinary process. But the court held that there was no distinc- 
 tion, and that a foreign witness must not be liable even to an or- 
 dinary action. ISTorris vs. Beach (2 Johnson's Eep. 294) and Sand- 
 ford vs. Chase (4 Cowen, 381) were cited. Public policy required 
 that the attendance of witnesses to give evidence before a court 
 and jury orally should be unobstructed. 
 
 So, in "Walpole vs. Alexander (3 Douglass, 45), it was held 
 that the protection was due to witnesses coming from abroad to 
 testify as much as to others. Every reason which applies to the 
 protection of a witness at home holds more strongly with regard 
 to a witness who comes from abroad. The privilege protects 
 him in coming, in staying, and in returning, provided he acts 
 iona Jlde, and without delay, which is a question of reasonable- 
 ness. 
 
 Attorneys and counselors. — ^The Code authorizes, as we have 
 seen, an arrest of an attorney or counselor, under certain circum- 
 stances. It is presumed that the former law as to his exemption 
 still exists even in these cases. 
 
 By the statute (2 K. S. 290, § 86), all officers of the several 
 courts of record shall be liable to arrest on any process against 
 the body, 'and may be held to bail, in the same manner as other 
 persons, except during the actual sitting of any court of which 
 they are officers ; and when sued with any other person, such offi- 
 cers shall be liable to arrest, and may be held to bail as other 
 persons, during the sitting of the court of which they are officers; 
 but no attorney, or solicitor, or counselor shall be exempt from 
 arrest during the sitting of the court of which he is an officer, 
 unless he shall be employed in some cause pending and then to 
 be heard in such court. 
 
 In Cole vs. McOlellan (4 Hill, 59), it was held that the statute 
 
38 AEEEST AND BAIL. • [§ ^'^^• 
 
 did not exempt a counselor who might be in attendance before a 
 master, examiner, or judge out of court. 
 
 The law of England seems more liberal as to the exemption. 
 The attorney has the privilege, like a witness, eundo, morando, 
 et redeundo, from some court or tribunal to which his professional 
 duty calls him. It extends to his going to attend a trial, or a 
 motion, or summons, or an appointment before a master in chan- 
 cery, or an arbitrator, or commissioners in bankruptcy.' 
 
 An attorney, arrested on his way from his private to his pro- 
 fessional residence, in order to procure some papers material to a 
 case in which he was afterwards to go to a court, was discharged ; 
 but it was imposed on him, as a condition, that no action should 
 be brought." 
 
 This privilege arises from the supposition that. the attorney is 
 engaged in the business of his clients. If, therefore, he is shown 
 to be about to leave the country, when no benefit can be derived 
 from his services to a client, he may be arrested under the 1st and 
 2d of Victoria, ch. 110.= 
 
 In Humphrey vs. Gumming (5 Wendell, 90) it was held that 
 if a counselor is arrested while actually attending court for the 
 purpose of making a motion, he will be discharged ; but the 
 rights of the party are in no respect prejudiced by the discharge. 
 After the privilege ceases, the same writ may be served, or a new 
 execution be issued. 
 
 Pitt vs. Coomes (5 Barn, and Adol. 1078) is an instructive case 
 as to the continuance of an attorney's or counselor's protection. 
 The party attended in court on a motion, and, upon leaving it, 
 went to an office to sort his papers and take some refreshment. 
 There he remained from one to two hours, and then, on his way 
 home, entered a tailor's shop, where he was arrested. He was 
 discharged. 
 
 In Chaffee vs. Jones (19 Pickering, 260), it was laid down 
 that the exemption of arrest of a party to a suit returning from 
 court is to be allowed with reasonable indulgence ; but a devia- 
 
 Newton vs. Constable, 2 Queen's Bench, 157 ; Lush's Stephens' Practice, 229, and 
 the cases there cited; Randall vs. Gurney, 1 Chitty, 679. 
 
 = Williams vs. Webb, 2 Dow. N. S. 660 ; Pitt vs. Coomes, B Barn, and AdoL 1078. 
 
 ' Thompson vs. Moore, 1 Bow. N. S. 283 ; Flight vs. Cooke, 1 Dowl. and Lown- 
 des, 714. 
 
§ 1Y9.] AEEEST AND BAIL. 39 
 
 tion on his return, to attend the funeral of a son, will be a forfeit- 
 ure of it. 
 
 Ambassadors.— By act of Congress of April 30, 1790 (§§ 25, 26), 
 all writs or process whereby any ambassador or public minister 
 of any foreign prince or state, authorized and received as such by 
 the President of the United States, or any domestic or domestic 
 servant of any such ambassador or other public minister, may be 
 arrested or imprisoned, or his or their goods or chattels may be 
 ' seized, are void. And any person suing out such process, or 
 prosecuting or executing it, is liable to a fine in the discretion of 
 the court, and imprisonment not exceeding three years. 
 
 This act was adopted from the statutes of Queen Anne (7th, 
 ch. 12, § 3). Its phraseology is almost identical. 
 
 We have the authority of Lord Mansfield and Lord Ellen- 
 borough for saying that the statute was declaratory of the law 
 of nations. The latter adds that it defines to what extent that 
 law is carried.' Consuls have been held not to be included within 
 its provisions. 
 
 Taylor vs. Best {U Comm. Bench Eep. 487, 25 En. L. & Eq. 
 Eep. 383), is a case of importance and full of learning. It was 
 held that a councilor of a foreign legation; acting as charge in 
 the absence of his superior, is a public minister of a foreign 
 prince within the statute of Anne. Again, that an ambassador 
 who voluntarily appears in an action brought against him, as a 
 joint defendant, waives his privilege, and cannot afterwards have 
 a stay of proceedings, so long, at least, as his person or property 
 is not interfered with. The privilege, when it attaches, was not 
 lost by the parties engaging in trade. The question was allowed 
 to be an open one, whether an action might not be supported in 
 invitum when process is not directed against the person or goods. 
 
 In Holbrook vs. Henderson (11 Sandf. Sup. Ct. Eep. 619) 
 some points of great importance were decided. 
 
 That an ambassador from one foreign state to another, while 
 traveling through the territories of a state to which he is not 
 accredited, in the execution of the duties of his mission, is priv- 
 leged from arrest on civil process. 
 
 The act of Congress relative to the privilege of resident am- 
 bassadors was not necessary, nor intended, to confer privileges, 
 
 " Triquet vs. Bath, 8 Burr. 14^8 ; ViTeash vs. 'Baker, 3 Maule & Selw. 298. 
 
40 AEEB8T AND BAIL. [§ 179, 
 
 nor does it limit their extent. Its object was to enforce such 
 privileges, and punish their violation. Those privileges have 
 their origin and support in the law of nations. 
 
 And an ambassador from the republic of Texas to the king- 
 dom of France, who was returning from France to Texas, after 
 the discharge of his mission, and was arrested in a civil suit in 
 'Nevf York, was discharged. 
 
 The 26th section of the act of Congress of 1790 requires that 
 the domestic servants of foreign ministers should be registered in 
 the manner prescribed, to be entitled to the exemption from 
 arrest. 
 
 Officers under Police Act. — By the 18th section of the act 
 to establish a Metropolitan Police District, passed April 15, 1857, 
 no person holding office under the act shall be liable to military 
 or jury duty, or to arrest on civil process, or to service of sub- 
 poena from civil courts, while actually on duty. 
 
 Sheriff not exempt. — In Hill vs. Lott and others (10 Howard, 
 46), it was held that a sheriff was liable to arrest the same as any 
 other person. Such was the rule before the C9de, and it had 
 not been altered. Day vs. Brett (6 John. Eep. 22), was cited. 
 
 Waiver of privilege. — It was decided, in Stewart vs. Howard 
 (15 Barbour, Eep. 26), that a witness arrested while in attendance 
 before a commissioner, under a regular subpcena, by putting in 
 bail, waived his privilege. The cases collected in Graham's 
 Prac, p. 550, were referred to. 
 
 In Washburn vs. Phelps (24 Yermont, 506), a party privileged 
 as a witness, while attending court, was arrested, and gave bail. 
 It was held he could still move upon his privilege for a discharge. 
 
 In Pitt vs. Coombs (4 Nev. & Man. 535), a party privileged 
 from arrest, because of his attending court as a party in an ac- 
 tion, deposited money with the sheriff in place of bail. The 
 motion to have it refunded was granted, the delay being ac- 
 counted for. 
 
 Second arrest.— It is well settled as a general rule, that a 
 person who has been once arrested and held to bail, and duly 
 discharged, shall not be again arrested fof the same cause of ac- 
 tion. ' 
 
 ' Wheelwright vs. Joseph, 6 M. A Sel. 93 ; Lewis vs. Pottle, 4 T. E. 5T0 ; Beli- 
 fante vs. Levy, 2 Strange, 120; Enoch vs. Ernst, 21 Howard's Pr. Eep. 96. 
 
§ 1Y9.] AEEEST AND BAIL. 4rl 
 
 Even more clear is it that he cannot be subjected to an aiTcst 
 in two actions, in different courts of the same State, for the same 
 cause. ' 
 
 But the distinctions are numerous and important : 
 
 If the defendant has not been arrested in the first action, but 
 only served with common process, he may be held to bail in a 
 second action for the same cause. (Bishop vs. Powell, 6 T. B. 
 616 ; Dawson vs. Cleworth, cited 1 Chitty, 2T3, n.) The question 
 as to another suit pending, is an independent question. 
 
 If the discharge is by reason of a fault of the sheriff's officer, 
 over which the plaintiff could have no control, and was without 
 his knowledge or concurrence, the defendant may be again ar- 
 rested. (Housin vs. Ban'ow, 6 T. B. 218.) 
 
 Where the defendant was let out of custody on his own re- 
 quest, by consent of the plaintiff's wife, to enable him to attend 
 to some business, he could be again arrested on the same affidavit. 
 (Penford vs. Maxwell, 1 Chitty's Bep. T9, n.) 
 
 If the plaintiff is non-prossed, and sues again, it is a subject 
 of great conflict in the English cases, whether the defendant can 
 be arrested a second time. The better opinion seems to be that 
 it should be inferred that the second arrest was vexatious, unless 
 the plaintiff fully repelled that presumption. ' 
 
 In Hamilton vs. Pitt, the defendant was arrested for the amount 
 of two items, and only one was recovered. Upon a second arrest 
 for the other, as to which no evidence had been offered, he was 
 discharged on common bail. 
 
 In Cartwright vs. Keely (7 Taunton, 194), it was held that, 
 if the judgment in the first action for the plaintiff had been 
 reversed for error, a second arrest in a new action was allowable. 
 But the second arrest being in fact before judgment was en- 
 tered, though the opinion was intimated, the party was discharged. 
 
 InBichards vs. Stuart (10 Bingham, 323), the rule was recog- 
 nized that a second arrest may take place after the discontinuance 
 of an action. It was held that a discontinuance of the writ, with 
 the acceptance of the costs by the defendant's attorney, was 
 equivalent to the discontinuance of the suit itself. See Imlay vs. 
 EUesfen, 3 East, 312. 
 
 ' Hernandez vs. Camobelli, 4 Duer Rep. 642 ; Peck vs. Hozier, 14 John. Rep. 346. 
 " See the cases, Petersdorf on Bail, 136 ; Kearney vs. King, 1 Chitty, 273. 
 
43 AEEEST AND BAIL. [§ 1^9. 
 
 In Schaab vs. Chase (16 Howard's Pr. 413), it was held that, 
 although a person could not be arrested more than once by pro- 
 cess out of different courts in the same State, for the same cause 
 of action, the rule does not apply where the arrest is absolutely 
 void by reason of the want of authority in the court or officer 
 awarding it. 
 
 In Lovell vs. Martin (21 Howard's Pr. Eep. 238), where the 
 defendant had moved on the plaintiff's affidavit, and failed, he 
 made a second motion on affidavits on his own part. The appli- 
 cation was denied, but without prejudice to a motion for leave to 
 make such a motion. 
 
 Detainer. — A party arrested in one action is considered as in 
 custody in all actions in which orders are delivered to the sheriff.' 
 
 But if he has been illegally arrested in the one action, he can- 
 not, it seems, be detained in another without a fresh arrest.' 
 
 Action on judgment. — ^The English rule appears to be that, in 
 an action of debt upon a judgment, whether after verdict or upon 
 a default, the defendant cannot be arrested, if he were holden to 
 bail in the prior action, even although the bail have since become 
 insolvent, or the defendant has surrendered in their discharge. 
 But if he has not been previously holden to bail, he might be 
 arrested. (Kendal vs. Carejr, 2 Black. 768 ; Crutchfield vs. Sew- 
 ards, Barnes, 116 ; 2 Wilson, 93 ; Sayers' Rep. 160 ; De la Cour 
 vs. Eead, 2 Hy. Black. 278.) 
 
 In McButt vs. Hirsch (4 Abbott, 441), it was held that the 
 recovery of a judgment in one of the State courts, upon a debt 
 fraudulently contracted, merged the original cause of action, and 
 the defendant could not be arrested in an action upon the judg- 
 ment on the ground of such fraud. 
 
 A similar decision was made in Goodrich vs. Dunbar (17 
 Barbour, 644), where the alleged cause of arrest was money re- 
 ceived in a fiduciary capacity. 
 
 In "Wanzer vs. De Baun (1 E. D. Smith, 261), it was held by 
 the Court of Common Pleas, at General Term, that the recovery 
 of a judgment upon a contract is no bar to a separate action for 
 
 ■ CoUina vs. Ewens, 10 Adol. & Ellis, 6'?0 ; Banache vs. Newton, 1 Queen's 
 Bench, 625. 
 
 ' Barratt vs. Price, 9 Bingh. 666 ; Collins vs. Ewens, ut supra. 
 
.§ 180.] AKEEST AND BAIL. 43 
 
 the deceit originally practiced upon the plaintiff to induce him to 
 enter into it. In an action upon the judgment itself obtained in 
 another State, the defendant might be arrested upon affidavits 
 showing fraud in contracting the original debt, ■where the fraud 
 was not discovered until after the judgment was recovered. No 
 complaint having been drawn, it did not appear whether the 
 plaintiff intended to rely upon the deceit as his cause of action, 
 or to declare on the judgment. 
 
 It deserves notice, that the fact of the judgment being in an- 
 other State is not noticed in the case or opinion, although it is 
 in the head-note. The reasoning of the learned judge is as appli- 
 cable to a domestic judgment as to any other. 
 
 The case of The Merchants' Bank of New Haven vs. Dwight 
 (6 Duer, 659 ; 13 Howard, 367) established that a defendant who 
 was guilty of a fraud in incurring an obligation, which has 
 been surrendered by the other party to the contract after he 
 had discovered the fraud, and who thereupon took a new obliga- 
 tion, in incurring which the defendant was guilty of no fraud, 
 was not liable to be arrested in an action brought on the latter 
 obligation by reason of his fraud in incurring the first. On gen- 
 eral principles, all rights and remedies consequent upon the orig- 
 inal transaction should be deemed to have been voluntarily re- 
 linquished for the substituted contract and the advantages ex- 
 pected to result from it. 
 
 Section 180. 
 
 " Order for arrest, iy whom made. 
 
 " 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." 
 
 This was originally § 155, and has remained unchanged since 
 1848. 
 
 As to the power of a county judge, there is a similar provi- 
 sion in section 218 as to injunctions. In Eddy vs. Howlet (2 
 
44 AEKE9T AND BAIL. [§ 180. 
 
 Code Eep. T6), the action was in the Supreme Court, and the 
 place of trial was the county of New Tork. An injunction was 
 granted by the county judge of Kings county. It was held that 
 section 403 defined the meaning of section 218, and that the 
 county judge must be of the county in which the action was tri- 
 able. The same point was ruled by Justice Harris in Chubbach 
 vs. Morrison (6 Howard, 367), in relation to an order to stay pro- 
 ceedings. He relied upon section 401, that orders may be made 
 by a county judge of the county where the action is triable, ex- 
 cept to stay proceedings after verdict. 
 
 But since these decisions, and in 1859, the 401st section was 
 amended so as to allow orders to be made also by the county 
 judge of the county in which the attorney for the moving party 
 resides. 
 
 The case of Deebles vs. Eogers (5 Howard, 208) contains a 
 useful history of the statutes relating to the powers of county 
 judges. 
 
 A county judge obtains the authority to grant a provisional 
 remedy from the Code only. 
 
 In Seymour vs. Mercer (13 Howard, 564) an' order of arrest 
 was granted by the special surrogate of Cayuga county. There 
 was no vacancy in the office of county judge or of surrogate in 
 that county. Upon an examination of article 6, section 15 of the 
 Constitution, section 1 of chapter 108 of the Session Laws of 
 1851, and section 1 of chapter 306 of the Laws of 1849, it was 
 held that an order of arrest made by such officer was legal. It 
 was at least a special case within the section of the Constitution. 
 
 In Conklin vs. Dutcher (1 Code Eep. IST. S. 49), it was held 
 that the order of a county judge for an attachment was his order 
 acting as Supreme Court justice at chambers, and his order was 
 to be reviewed in the same manner (§ 403). An order of a judge 
 refusing to set aside an attachment, did not bring up on appeal 
 the question of the sufficiency of the facts on which the original 
 order was granted. 
 
§ 181.] AEREST AND BAIL. 45 
 
 Section 181. 
 
 ^'■Affida/vit to obtain order. To what actions this ch<j/ptm' 
 
 applies.^'' 
 
 AfRdavit to obtain the order. — "The order maybe 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 that 
 the case is one of those mentioned in section lYQ. 
 
 " The provisions of this chapter shall apply to all actions in- 
 cluded within the provisions of section 1T9, which shall have 
 been commenced since the 30th day of June, 1848, and in which 
 judgment shall not bave been obtained." 
 
 The section in the Code of 1848 was as follows : 
 
 " (§ 156.) The order may be made when it shall appear to the 
 judge, by the affidavit of the plaintiff or of any oth6r person, 
 that a sufficient cause of action exists (and excepting in the cases 
 mentioned in the second subdivision of section 154); that the 
 defendant is not a resident of the State, or is about to remove 
 therefrom." 
 
 The second subdivision of section 154 was in substance the 
 second subdivision of the present section 1Y9. 
 
 The first clause of the present section was adopted in 1849, 
 and has remained unchanged since. The second clause was also 
 then enacted. 
 
 A cause of action in favor of the plaintiff, against the defend- 
 ant sought to be arrested, must appear, and that the case falls 
 within section 179. 
 
 In cases in which the complaint should show the grounds of 
 arrest — eases where these are identical with the cause of action — 
 the complaint may suffice as an affidavit. And where the com- 
 plaint and summons have been served, and are laid before the 
 judge, upon an application for an arrest, upon an affidavit whicb 
 was defective, the complaint was resorted to in order to supply 
 the defect. The order recited that it appeared by affidavit and 
 
46 AEEEST AND BAIL. [§ 181. 
 
 complaint that a cause of action existed, &c. The sworn com- 
 plaint was equivalent to an affidavit.' 
 
 In Seely vs. Hoyt, April 13, 1854, it was held at Special 
 Term, Superior Court, with the approval of all the judges, that 
 the analogy of the 220th section respecting injunctions should 
 prevail. The phraseology there was nearly identical with that 
 used in the 181st section, and the weight of authority was in favor 
 of the proposition that a complaint sworn to is equivalent to an 
 affidavit. (See 6 Howard, 210.) 
 
 Where the facts upon which the application depends are 
 within the affirmant's own knowledge, the affidavit must be posi- 
 tive. But facts can frequently only be stated on information 
 and belief. In such a case, the affidavit must aver a belief in the 
 truth of the statements, and how and from whom, or from what 
 source, the information was derived, and the reasons preventing 
 the furnishing an affidavit of the person from whom the informa- 
 tion was obtained. 
 
 Thus, in Peel vs. Elliott (16 Howard, 481), the defendant was 
 arrested as being employed by the "War Department of the Brit- 
 ish Government, and as such agent and servant having received 
 moneys and misapplied them. The affidavit was sworn to by 
 the attorney for such Department, in New York. The statements 
 were made on information and belief derived from letters and 
 instructions received from the solicitor of such Department, and 
 upon an exemplification of an inquisition taken under an extent 
 in the English Court of Exchequer. The court held that the 
 objection that the facts were sworn to on information and belief 
 was not available. The means of information were stated, and 
 were sufficient to make out a ^ima facie case. 
 
 In Whitlock vs. Eoth (5 Howard, 143), the arrest was on the 
 ground of the party being guilty of a fraud in contracting the 
 debt, obtaining goods on fraudulent representations, under subdi- 
 vision 4, representing himself to be a partner of a certain house. 
 The allegations of the debt and the representations were positive, 
 but the allegation of the falsity of the representation was, that the 
 deponent is informed and believes, and expects to prove, that said 
 
 ' Brady vs. Bissell, 1 Abbott, 16, cited and adopted in Turner vs. Thompson, 2 
 Abbott, 444. 
 
§ 181.] AEEEST AND BAIL. 47 
 
 Koth was not at the time a member of any such firm. The court 
 held that it would not do to lay down as a general rule that an 
 order of arrest could never be granted on information and belief, 
 or without a positive averment of facts by persons conversant with 
 them. But the arrest upon the general allegation that the plain- 
 tiff was informed and believed that the representation was false, 
 could not be sustained. The nature and quality, and perhaps 
 sources, of the information must be set forth, so that the court 
 may be able to ascertain whether the party is right in entertain- 
 ing the belief to which he deposes. So far as the facts may be 
 within the knowledge of the plaintiff, such as the existence of the 
 debt and the manner in which it was contracted, they must be 
 stated positively ; but as far as they necessarily rest on informa- 
 tion derived from others, they may be so stated, when the sources 
 and nature of the information are particularly set out, and a good 
 reason is given why a positive statement of them cannot be pro- 
 cured. 
 
 The rule thus stated is also recognized in Crandall vs. Bryan 
 (5 Abbott's Eep. 162). See also Yanderpool vs. Kissam (4 Sandf. 
 Sup. Court Rep. 715), and Mason vs. Bruno (21 Howard 112). 
 
 Justice Smith, in Crandall vs. Bryan {ut supra), observes : 
 " The statute does not define the proof to be made, except that it 
 be by affidavit ; nor does it define or fix the degree or extent of 
 the evidence-^how near it must come to legal evidence, such as 
 would be required on the trial of the issues. Something, doubt- 
 less, is left to the judgment and discretion of the judge in respect 
 to the particular facts of such case. He must be satisfied judi- 
 cially." 
 
 An affidavit in general terms, that the case is within the 179th 
 section of the Code, is wholly insufficient. An affidavit also in 
 general language, that the defendant has done one of the acts 
 which justify an arrest, as, for example, has removed or disposed 
 of his property, with intent to defraud his creditors, is defective. 
 The facts must be stated which will enable the Judge to conclude 
 judicially that, on the case as presented, the act has been done, 
 and that the intent is deducible. 
 
 In Pindar vs. Black (4 Howard, 95), Justice Harris said : " It 
 cannot be necessary — indeed, I do not think it would be suffi- 
 cient — for the party making the affidavit to state that his cause 
 
48 AEEEST AND BAIL. [§ 181. 
 
 was one of those mentioned in section 179 of the Code. It is 
 enough that the judge can see, from the facts stated, that it is 
 such a case ; and unless facts enough to show this are stated, the 
 affidavit is insufficient." 
 
 In Frost vs. Willard (9 Barhoiir, 440), upon an attachment 
 under the statute, the affidavit was, " that the defendant had as- 
 signed or secreted his property, with intent to defraud his credit- 
 ors." It was held that such an affidavit, though in the words of 
 the statute, was insufficient. It had often been so held, and &- 
 ]part6 Kobinson (21 Wendell, 672) was cited. 
 
 That case refers to Smith vs. Luce (14 "Wendell, 237), which is 
 a decisive authority. 
 
 In The People vs. The Eecorder of Albany (6 Hill Eep. 429), 
 Bronson, Justice, said that, "in such cases, where the creditor 
 may be his own witness for the purpose of procuring the warrant, 
 and may choose his own time for arresting the defendant, it is not 
 too much to require that he should in the first instance make out 
 a plain case." 
 
 This was in a case under the fourth section of the Non-impris- 
 onment Act. 
 
 "WTiere the injury complained of is a tort, all the allegations 
 must be made which are necessary to establish a complete cause 
 of action. 
 
 Thus, in Gadsden vs. McLean (9 Common Bench Rep. 283), 
 the action was for deceit against a master of a vessel who had 
 signed a bill of lading, the property (oats) turning out to be un- 
 sound. The affidavit on which the defendant was held to bail 
 was defective in not stating that the master knew that the oats 
 were unsound when he signed and delivered the bill of lading. 
 On this, a bail-bond given by the defendant on his arrest was 
 ordered to be canceled. 
 
 The cause of action in the complaint must conform substan- 
 tially to the ground of arrest in the affidavits and order. See the 
 cases .on this point under section 204. 
 
 "Where a married woman obtained an order of arrest on a gen- 
 eral allegation that the property. was her separate property, and 
 the defendant moved on her affidavit, it was held sufficient. 
 (Lippman vs. Petersburgh, 10 Abbott, 254.) 
 
§ 182.] AKEEBT AND BAIL. 49 
 
 Section 182. 
 
 " Security ly jplaintiff lefore order of arrest. 
 
 " 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 plain- 
 tiff 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 afiidavit 
 that he is a resident and householder, or freeholder, within the 
 State, and worth double the sum specified in the undertaking, 
 over all his debts and liabilities." 
 
 Security by plaintiff.— The Code of 1848 was precisely the 
 same, except that the sum of one hundred dollars was two hund- 
 red and fifty dollars. In 1849 the change was made. 
 
 By whom signed. — ISTo little difference of opinion has existed 
 as to the sense of the phrase, " on the part of tlie plaintiff, with or 
 without sureties," in this section. 
 
 In Richardson vs. Craig (1 Duer, 666), Mr. Justice Duer held, 
 with the concurrence of three other justices, that although sure- 
 ties might be dispensed with, it was essential that the plaintiff 
 should execute the undertaking. In cases of married women or 
 infants, the next friend might be looked upon as the plaintiff. 
 
 In Askins vs. Hearns (3 Abbott, 182), Mr. Justice Emott held, 
 that an undertaking executed by two sureties only, and not by 
 the plaintiff, was sufficient. He examined the subject very fully, 
 and differed from Richardson vs. Craig. 
 
 In Bellinger vs. Gardner (2 Abbott. Eep. 441), an undertaking 
 signed by sureties, was held valid by Mr. Justice Davies. He 
 considered that the words denoted substitution ; that the thing 
 was to be done by others in behalf of, or on the part of, the plain- 
 tiff, and not by himself. 
 
 In Lief vs. Spaursenbergh (Special Term Superior Court, Sept. 
 22, 1858), it was held by Chief Justice Bosworth, that such an un- 
 4 
 
60 AEEEST AND BAIL. [§ 183. 
 
 dertaking by one surety, without the plaintiif, was sufficient. This 
 was on a motion to vacate an order of arrest. 
 
 And in Leffingwell vs. Chave (Mr. Justice "Woodruff, Special 
 Term Superior Court, April, 1860), an injunction undertaking 
 was executed by two persons, neither of whom was the plaintiff. 
 The language in the 222d section is precisely the same in this 
 particular as in the present case. 
 
 The judge thought the words, " on the part of the plaintiff," 
 were satisfied by construing them as words of contrast or opposi- 
 tion to the part of his adversary ; and it was enough if any other 
 persons peremptorily and unqualifiedly executed the undertaking. 
 They became, as to the defendant, principals ; and the present 
 forms of such instruments make all who execute, principals ; and 
 in that sense they are undertakings on the part of the plaintiff. 
 
 In Varrault vs. Difiot (Special Term Superior Court, 1854, 
 Hoffman, Justice), the undertaking was signed by a party who 
 made the affidavit on which the order was obtained, in which he 
 was described as the agent of the plaintiff, a resident abroad, and 
 by one surety. It was, on motion, held sufficient. To the de- 
 fendant, one was principal, viz., the agent, whose engagement 
 was absolute. 
 
 This seems to have been like the case of Courter vs. MelTam- 
 ara (9 Howard, 255), where FergifSon executed the undertaking 
 on the part of the plaintiff, making the affidavit that he was a 
 resident and householder within the State, and worth double the 
 sum, (fee. 
 
 In the Kepublic of Mexico vs. Arrangoiz (5 Duer, 634:), the 
 undertaking was signed by the accredited minister, with two 
 sureties. 
 
 In Peel vs. Elliott (16 Howard, 481), the action was brought 
 by the plaintiff as Secretary of the War Department of Her 
 Brittanic Majesty, specially authorized to sue by acts of Parlia- 
 ment, and the undertaking was executed by two persons resident 
 in New York as sureties. This does not appear in the case, as 
 reported, but is so stated by the counsel. 
 
 It seems to me that every phrase and portion of the clause in 
 question must receive some effect ; and this cannot be, without 
 holding that a principal is implied as a party to the undertaking. 
 That may be the plaintiff, or one in his behalf— in his position — 
 
§ 183.] ABEEST AND BAIL. 51 
 
 who would, in an action between the parties to it, be liable for the 
 whole amount, not a contributory share. Sureties are, ex vi ter- 
 mini, parties presupposing and added to a principal. Hence, 
 the plaintiff may execute, and, by a subsequent clause, alone, on a 
 certain condition as to his responsibility. An agent or person for 
 him may execute, and alone, if the judge think proper. And in 
 either ease the judge may require sureties. But when he does 
 require them, he must have the plaintiff, or some one in his posi- 
 tion, to unite. 
 
 Section 183. 
 
 " Order ^ when made, and its form. 
 
 (1) " The order may be made to accompany the summons, or 
 at any time afterwards before judgment. It shall require the 
 sheriff of the county where the defendant may be found, forth- 
 with 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 attorney by whopi it shall be subscribed or en- 
 dorsed." 
 
 This section was amended in April, 1862, by adding the fol- 
 lowing clausp : (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 dock- 
 eting 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." 
 
 The 158th section of the Code of 1848 was the same as the 
 above (1), except that instead of the words, to accompany the 
 sum.mons, the language was, at the time of commencing the action. 
 
 The change was made in 1849. 
 
 The order should conform, in the christian and surnames 
 of the parties, with the summons. By a rule of the courts 
 of "Westminster of 1853,' where a defendant is described in the 
 
 ' Lush's Practice, 631, 869 ; a rule governing the Queen's Bench, Common Pleas, 
 and Exchequer. 
 
52 AEEE8T AND BAIL. [§183. 
 
 writ of capias, or affidavit to hold to bail, by initials, or by a 
 wrong name, or without a christian name, he shall not be dis- 
 charged out of custody, if it shall appear to the court that due 
 diligence has been used to obtain knowledge of the proper name. 
 
 The 175th section of the Code is very comprehensive. If the 
 plaintiff is ignorant of the name of a defendant, he may be desig- 
 nated, in any pleading or proceeding, by any name ; and when 
 his true name shall be discovered, the pleading or proceeding 
 may be amended accordingly. 
 
 It would seem that the plaintiff ought to aver his ignorance 
 of the true name. See Crandall vs. Beach (7 Howard, 271) ; El- 
 liott vs. Hart (Ibid. 25) ; Gardner vs. Clark (6 Howard, 449). 
 
 In Pindur vs. Black (4 Howard, 95), Mr. Justice Harris held 
 that it was not necessary that the name of the defendant should 
 be stated. The affidavit stated the plaintiff's ignorance of the 
 name, and that his cause of action was against the man who had, 
 at the time of the injury, command of the sloop Hornet. The 
 affidavit was entitled "In John Pindur vs. John Doe," and stated 
 that the real defendant in the suit had committed the act. 
 
 After judgment the arrest cannot be made ; but this means a 
 final judgment, absolute and unconditional. Where the defend- 
 ant suffered judgment to be taken against him upon failure to 
 answer, and, on motion, was allowed to come in and defend, — the 
 judgment standing as security, but the execution stayed, — an or- 
 der of arrest granted after the judgment by default was sus- 
 tained.' 
 
 The order is to accompany the summons, or may be made at 
 any time afterwards before judgment. It is understood, in prac- 
 tice, that a summons must be prepared. In the Superior Court 
 of Ifew York, tlie j^udges require its exhibition, or proof of its 
 having been issued. 
 
 In Gould vs. Bryan (3 Bosworth's Hep. 626), it was decided, in 
 relation to an attachment, that it could issue and be served to- 
 gether with the summons, and the actual commencement of an 
 action was not a prerequisite to this. The chief justice observed 
 that, if the objection be sound, that the court had no jurisdiction 
 to grant process until the summons had been served, and when 
 
 ' The Tlnion Bank vs. Mott, 8 Abbott, 160. 
 
§ 184.] AEEEST AND BAIL. 53 
 
 the defendant is a non-resident, then an order of arrest would be 
 as unauthorized as an attachment against the property of the de- 
 fendant. An order of arrest is in the nature of process, and ac- 
 complishes the office of an ac etiam clause in & capias ad respon- 
 dendum. 
 
 The English statute of 1 and 2 Victoria, before mentioned, pro- 
 vided that the order might be made, and the defendant arrested, 
 at any time after the commencement of the action, and before 
 final judgment shall have been obtained therein. (§2.) It is held, 
 that though the action must be brought, — that is, the writ be is- 
 sued, — yet the defendant may be arrested on the capias before he 
 has been served with the writ of summons. The affidavit may 
 be sworn to before the writ has been taken out.' 
 
 The order directs an arrest forthwith, and a return of the 
 order at a time and a place therein mentioned, to the plaintiff 
 or his attorney. Of course the arrest may be made at any 
 time before the return-day. 
 
 A practice has sometimes prevailed, of another judge of the 
 court altering the time of the return, where the defendant has 
 not been ai'rested on the first order. 
 
 It is to be noticed that the order must be obtained from a 
 judge of the court, and he is to be satisfied by affidavit that a 
 cause of action exists. It may be that the implication (from a 
 change with the initials or signature of the other judge) would 
 arise of his having examined the affidavit ; but the safer course 
 seems to be to obtain from him a new or an alias order. 
 
 Section 184. 
 
 " Affidavit and order to he delivered to sheriff, and copy to 
 
 defendant. 
 
 " The affidavit and order of arrest shall be delivered to the 
 sheriff, who, upon arresting the defendant, shall deliver to him a 
 copy thereof." 
 
 This has remained imchanged since ISiS. 
 
 ' Brooke m. Snell, 8 Dowl. Pr. Ca. 3'70; King vs. Craig, 14 Q. Bench, 31. In the 
 former case it was ruled that, although it was not necessary to serve a copy of the 
 summoua before the arrest, yet the defendant was entitled to have it served within a 
 reasonable time, or to be discharged. 
 
54 AEEEST AND BAIL. [§ 1S5. 
 
 A similar provision is found in the English statute : " On the 
 execution of the writ the sheriff must deliver a copy thereof to 
 the defendant." It has been held, that a delay of ten hours in 
 delivering it was not a compliance with the statute.' 
 
 An omission or variance in the copy whereby the sense or the 
 description is not altered, will not vitiate the arrest." But if the 
 copy vary in a material particular, the arrest will be invalid 
 under the English act. (Smith vs. Pennel, 2 Dowl. Pr. Cas. 
 654 ; McDonald vs. Mortlock, 2 Dowl. & Lowndes, 654.) 
 
 In Courter vs. McNamara (9 Howard, 257), Justice Harris 
 decided that the provision in this section as to a delivery of a 
 copy of the order was merely directory, and the omission to de- 
 liver it M'as an irregularity which might be cured under section 
 174. (See, to the same effect, Keeler vs. Betts, 3 Code. Kep. 183.) 
 
 By the 7th rule of the Supreme Court, the sheriff is to file 
 with the clerk the aflSdavits on which the arrest is made, within 
 ten days after arrest ; and this rule, like every other provision 
 enjoining a duty upon the sheriff as to the return of process, may, 
 by rule 8, be enforced by attachment. 
 
 Section 185. 
 
 '■^Arrest, Tiow made. 
 
 " The sheriff shall execute the order by arresting the defend- 
 ant, and keeping him in custody until discharged by law ; and 
 may call the power of the county to his aid in the execution of 
 the arrest, as in case of process." 
 
 This is the same as section 160 of 1848, and has remained 
 without variation since. 
 
 If the defendant is already in the sheriff's custody, the deliv- 
 ery of the order to him will operate as a detainer." 
 
 " To constitute a proper arrest, two things appear to be essen- 
 
 ' Sherman m. McBright, 5 Dow Pr. Cases, 672. 
 
 "^ Lush's Practice, 632 ; Forbes m. Mason, 8 Dow. Pr. Cases, 204 ; Sutton m. Bur- 
 gess, ibid. 489. 
 
 = Lush's Practice, 531. So ruled in McGregor d». Willett, Special Term Superior 
 Court, December, 1869, Hoffman, Justice. 
 
§ 185.] AEEEST AST) BAIL. 55 
 
 tial. let. That the party arrested should be pnt in such a situa- 
 tion as jto feel that he is under restraint, and is no longer a free 
 agent ; and, 2d. That he should be aware that the restraint laid 
 on him is under color of process. If these results are obtained, 
 it matters not what may be the means employed, whether the 
 oflBcer seizes or touches the person, or whether, being advised of 
 the purpose, he submits and follows the officer." (Lush's Pr. 
 463.) 
 
 If the officer enterj the room in which the defendant is, and 
 locks the door, and tells him he is arrested, this will do, though 
 no manual seizure is made.' 
 
 In Howden vs. Standish (6 Common Bench, 504), it was held 
 to be the duty of the sheriff to provide such a force as will ena- 
 ble him to effect the capture in spite of such resistance as he 
 shall have reason to expect. The distinction where there is a 
 rescue after caption is noticed. 
 
 In Bissell vs. Gold (1 Wendell, 210), Chief Justice Savage 
 said : " "We understand the law to be well settled that no man- 
 ual touching the body or actual force is necessary to constitute an 
 arrest and imprisonment. It is sufficient if the party be within 
 the power of the officer, and submits to the arrest." A similar 
 rule is stated in Jones vs. Jones, 13 Iredell's Eep. 448. 
 
 In Butler vs. "Washburn (5 Foster's N. H. Eep. 251), it was 
 held, that the sheriff was the proper judge of the time and man- 
 ner of removing his prisoner, having regard to tlie state of his 
 health, and not using his power oppressively. 
 
 In Hubburd is. Mack (17 John. Eep. 127), it appeared that the 
 usual access to the inner rooms of a house was through the back 
 door, which was open. The sheriff used no more force than 
 was necessary to break open the door of the room occupied by the 
 defendant, to serve a capias ad respondendum. A motion to set 
 it aside was denied. See also "Williams vs. Spencer, 5 Johnson's 
 Eep. 352; Bell vs. Clapp, 10 ibid. 263. 
 
 It has long been the rule, that if a rescue is had on mesne 
 process, the sheriff may return this, and will not be liable.' 
 
 Jail liberties,— By the statute (2 N. S. 433, § 61, and see 5th ed. 
 Statutes, vol. 3, p. 733), persons taken on a capias ad responden- 
 
 ' 'Williams vs. Jones, Cases Temp. Hardwicke, 301. 
 " See the cases, Tidd's Practice, 60. 
 
56 AEEEST AND BAIL. [§ 185. 
 
 dum^ or in execution, were, upon certain conditions, entitled to 
 what is called the liberties of the jail — certain defined boundaries, 
 which, in New York, extend to the whole city. 
 
 Persons committed on attachment for non-payment of costs, 
 or by virtue of a surrender by bail, were so entitled. 
 
 The cases of The People vs. Benet (4 Paige, 282), Patrick 
 m. Warner (ibid. 397), and Steere vs. Field (2 Mason 486), may 
 be referred to as containing the leading rules, and bearing on this 
 subject. 
 
 I do not know of a decision upon the point whether such a 
 bond can be taken when the party is arrested under the Code, so 
 as to entitle him to the limits. The mode of relief by bail, as pre- 
 scribed, or deposit, is explicitly given and regulated. It is the 
 habit, in the sheriff's office in New York, and been sanctioned by 
 counsel, to allow it. If a party is surrendered by his bail, then 
 there does not seem any thing to prevent the statute from applying. 
 
 The condition of the bond to the sherift' is, that the person 
 will remain a true and faithful prisoner, and shall not, at any 
 time or in any manner, escape or go without the limits and boun- 
 daries of the liberties established for the jail of such county, until 
 discharged by due course of law. 
 
 It is presumed that, in such a case, the sheriff becomes 
 liable under section 201, as bail. The bail contemplated by the 
 Code has not been given. He looks to the bond for his own se- 
 curity. 
 
 In Sartos vs. Merceques (9 Howard, 188), the sheriff, having 
 re-arrested a defendant upon the failure of his bail to justify, a 
 motion was made for a discharge, or that the sheriff be ordered 
 to take bail for the liberties. As bail, under the 201st section of 
 the Code, the sheriff could arrest and surrender the defendant 
 without process. As to the other question the court say : " The 
 other question is, whether the defendant is entitled to the liberties 
 of the jail. Whetl^er he is so or not cannot be of much moment 
 on this motion, because it is not within the province of the court 
 to order the sheriff to take bail for the jail liberties. If he un- 
 justly refuses to take such bail, he is responsible to the injured 
 party. The court cannot pass upon the sufficiency of the bail for 
 the limits, nor in any way order the sheriff to accept the bond of 
 any sureties for such a purpose." 
 
§186.] AEEEST AifD BAIL. 57' 
 
 Section 186. 
 
 " Defendant to he dischaf-ged on Vail or deposit. 
 
 " The defendant, at any time before execution, shall be dis- 
 charged from the arrest, either upon giving bail or upon deposit- 
 ing the amount mentioned in the order of arrest, as provided in 
 this chapter." 
 
 This section has remained unchanged since the first enactment 
 of 1848. 
 
 It was anciently considered that bail could not be put in be- 
 fore the return day of the writ, or before the arrest had taken 
 place, without the plaintiff's consent ; 'but this position has been 
 since repudiated, and it seems now to be permanently settled, 
 that there is no objection against the bail being put in before the 
 return of the process. (Petersdorf on Bail, 284, Law Library, 
 Vol. X. p. 158.) 
 
 " "When the defendant is in custody, bail may be put in at any 
 time, even after verdict or final judgment, provided he has not 
 been charged in execution." (Ibid. ; Burrill's Practice, Yol. I. p. 
 109, and cases.) 
 
 The bail under this section of the Code is a substitute for bail 
 to the sheriff, and special bail of the former practice.' The prac- 
 tice respecting both becomes in several particulars applicable. It 
 is noticed under other sections. 
 
 The 197th section provides for the deposit in lieu of bail ; as 
 to which, seej)osf. 
 
 The discharge may be had at any time before execution. 
 There is nothing, that I am aware, defining which execution is 
 meant. The phrase is general, and probably is to be considered 
 as the execution against property under section 287. 
 
 ' Stewart vs. Howard, 18 Barbour, 26. In re Taylor, 1 Howard, 212. 
 
58 AEEEST AND BAIL. [§ 18T. 
 
 Section 187. 
 
 '■'■ Bail^ how given. 
 
 " The defendant may give bail by causing a written undertak- 
 ing to be executed by two or more sufi&cient bail, stating their 
 places of residence and occupations,' to the effect that the defend- 
 ant 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 mentioned in the third subdivision of section 179, an 
 undertaking to the same effect as that provided by section 211." 
 
 The provision in 1848 was the same as the preceding, down to 
 the clause commencing with the word or, italicized. The rest of 
 the section was added in 1849. 
 
 The form of the undertaking in all cases, except that by anal- 
 ogy to section 211, is as follows : 
 
 " (Title.) Whereas the above-named defendant, A. B., has 
 been arrested in the foregoing action by the sheriff of 
 at the suit of 
 
 "Now, THEKEFOEE, WE, C. D., of, &c., and E. F., of, &c. 
 (places of residence and occupation), do hereby, in pursuance of 
 the statute in such case made and provided, undertake that C. D., 
 the defendant above named, shall at all times render himself 
 amenable to the process of this court, during the pendency of this 
 action, and to such as may be issued to enforce the judgment 
 therein." 
 
 This form, which is in ordinary use, does not designate to 
 whom the undertaking is given, and it seems to be warranted by 
 the language of the Code. The rule in England, under the statute 
 of 23 Henry YL, ch. 9, § 1, was express, that the security must be 
 to the sheriff, in the form of a bond. K"o other undertaking, in 
 any other form, would avail. Yet, if the plaintiff interfered, and 
 directed the sheriff to discharge the party upon getting security, 
 
I 188.] AEEE8T AND BAIL. 59 
 
 he might take it in any form he pleased, and it would be good in 
 his hands/ 
 
 But if the defendant is arrested under the third subdivision of 
 section 179, the form is very different. Section 211 is to regulate 
 th5 form and effect of the undertaking. That provides that the 
 party give to the sheriff a written undertaking, executed by two 
 or more suificient 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. 
 
 It has been held under this section, that an undertaking is not 
 invalid when it is taken in the name of the plaintiff in the action. 
 (Slack vs. Heath, 4 E. D. Smith, 95.) 
 
 By the Revised Statutes the bond was to be executed to the 
 officer making the arrest, with the addition of his name of office. 
 (2 R. S. 348, § 12.) 
 
 See "Qualifications of Bail," _po5^, section 194. 
 
 Section 188. 
 
 " Surrender of defendant. 
 
 "At any time before a failure to complj'^ 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 Ins cus- 
 tody thereon, as upon an order of arrest, and shall, by a certificate 
 in writing, acknowledge the surrender ; 
 
 " 2. Upon production of a copy of the undertaking and 
 sheriff's certificate, a judge of the court, or county judge, may, 
 upon notice to the plaintiff of eight days, with a copy of the cer- 
 
 ' Lewie vs. Knight, 8 Bingham, 271 ; Fuller vs. Prest, t T. R. 109 ; Decker vs. Jud- 
 Bon, 16 IT. Y. Eep. 440. 
 
60 AEEEST AND BAIL. [§ 188. 
 
 tificate, order that the bail be exonerated ; and, on filing the order 
 and the papers used on said application, they shall be exonerated 
 accordingly. But this section shall not apply to an arrest for 
 cause mentioned in subdivision 3 of section 179, so as to dis- 
 cha/rge the hail from an undertaking given to the effect j^ovided 
 ly section 211." 
 
 Section 166 of 1848 was in several points different from, and 
 omitted several of the provisions of, the present section. 
 
 In 1849 it was amended so as to read as it does now, except 
 the words italicized. In 1851 these words were added. 
 
 By the English practice, the principal might be rendered by 
 the bail, or voluntarily render himself, at any time pending the 
 suit, or even after judgment, provided the render was completed 
 before certain proceedings had been had against the bail. (Peters- 
 dorf, p. 399.) 
 
 The rule in oiir courts, before the Revised Statutes of 1830, 
 may be found in the cases of Stewart vs. Baton, 1 Hall's Hep. 38. 
 Ex parte Badgley, 7 Cowen, 472 ; Thomas vs. Bulkley, 5 Cowen, 
 26 ; Brown vs. Smith, 9 John Eep. 84. The bail were strictly 
 fixed by the return of the ca. sa., and had eight days as matter of 
 grace only, aftfer the return of the ca. sa. against the debtor. 
 
 The statute of 1830 (2 E. S. 380) [§§ 21, 22, &c.J regulated the 
 course of proceeding upon a surrender by bail. Tlie period during 
 which the right to surrender existed was not expressly defined. 
 The only clauses which bear upon it are that in the 22d section 
 and in the 28th, appearing to imply a surrender pending the 
 action and before judgment. But the 31st section probably regu- 
 lated this matter. 
 
 The provision of the Code in this section is, that the surrender 
 shall be before a failure' to comply with the undertaking. The 
 undertaking under section 187 is, that the defendant shall 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 judg- 
 ment. In this connection the 189th section should be referred to, 
 directing that the bail may, for the purpose of surrendering, arrest 
 the defendant at any time before they are finally charged. 
 
 The 191st section provides that the surrender may be made 
 within twenty days after the commencement of the action against 
 
§ 189.] AEEEST AND BAIL. 61 
 
 the bail, or within such further time as may be granted by the 
 court. 
 
 Section 191 would seem thus definitely to fix the time for a 
 surrender. See the cases under that section, j>ost. 
 
 The first subdivision of the present section presupposes an ar- 
 rest by the bail, and delivery of the body to the sheriff. By the 
 189th section the bail are empowered to make such arrest, or to 
 depute any other person to do it. The delivery of a copy of the 
 undertaking to the sheriff authorizes him to detain the party. 
 
 The proceeding under subdivision 2 is similar to that under 
 the Eevised Statutes. (2 E. S. 380, § 22.) 
 
 On the application for an exoneration, the bail cannot set up 
 that the principal was not originally liable to an arrest." Nor can 
 he, after the time for a surrender has expired, be exonerated on 
 the ground that the defendant was a resident and not liable to 
 an arrest." 
 
 Section 189. 
 
 " Surrender of defendant. 
 
 " For the purpose of surrendering the defendant, the bail, at 
 any time or place before they are finally charged, may themselves 
 arrest him, or by a written authority, endorsed on a certified copy 
 of the undertaking, may empower any person of suitable age and 
 discretion to do so." 
 
 Section 164 of 1848 was the same. 
 
 In England, bail to the sheriff had no right to take the prin- 
 cipal into custody, although it was otherwise with respect to bail 
 above." 
 
 The principal is considered to be in the actual or potential cus- 
 tody of the bail, who are, in contemplation of law, his gaolers, 
 and may seize and render him in their discharge. Their power, 
 under the English rules, was very large." 
 
 ' White vs. Blake, 22 Wendell, 612. 
 ' Stever vs. Somberger, 19 Wendell, 121. 
 ' Eex vs. Hughes, 3 Carr <fe PajTie, 373. 
 * Petersdorf on Bail, 405. 
 
62 AitEEST AND BAIL. [§ 189- 
 
 Under the law of 1813 (1 K. S. Yol. I. p. 323), the bail or 
 manucaptor might surrender the defendant before a judge of the 
 Common Pleas of the county, and the judge was to endorse a 
 committitur on the bail piece. 
 
 Under the Kevised Statutes, an order of an officer for a com- 
 mitment, on the application of bail to surrender, was necessary. 
 And this was directed to the sheriff. . (2 E. S. 38.) [§ 22.] The 
 execution of the process was doubtless regulated by the rules gov- 
 erning other process. 
 
 But as the Code has restored the former rule, of allowing the 
 bail themselves to make the arrest, it may be that all the author- 
 ity vested in bail by the English and our. own law, before the act 
 of 1830, will be applicable. 
 
 It has been held that bail may justify breaking and entering a 
 house (the outer door being open) in which the principal resides, 
 in order to prosecute a search for him ; and there is no difference 
 between a house of which he is solely possessed and a house in 
 which he resides by consent of another." 
 
 It is said that a party or a witness, even when in attendance 
 upon court, may be taken and arrested by bail with a view to a 
 surrender.' Yet the plaintiff cannot have a party or witness ar- 
 rested, eimdo, morando aiot redeundo.^ 
 
 The bail may use all needful force to compel the party to ac- 
 company them, and may require the assistance of others.* They 
 may also authorize his detention by any other person." 
 
 This power the section of the Code now considered expressly 
 confers. 
 
 In the State vs. Mahon (3 Harrington's Eep. 568), it was held 
 that bail (special) might arrest the principal anywhere ; they 
 might depute others to do it ; but the arrest must be made by 
 such persons, or those assisting him. The arrest should be with- 
 out violence, unless there is a resistance. 
 
 It appears to be conceded, by the decisions in several of the 
 
 ' Sheers vs. Brooks, 2 Wm. Bl. 120; Lee vs. Gansel, Cowper's Reports, 1. 
 '' Horn vs. Swinford, 1 D. & E. N. Pr. Cases, 60; 4 Yeates, 123; 8 Pickering, 
 138 ; 1 John. Rep. 145 ; 4 Conn. 170. 
 
 ' See the cases. Petersdorf, p. 86, and ante, § 179. 
 * Pyewell vs. Stowe, 3 Taunton, 426; 8 Pickering, 138. 
 ° Ihid., and Nicholls vs. IngersoU, 7 John. Eep. 144. 
 
§ 190.] AEKEST AND BAIL. 63 
 
 States, that bail in one State may arrest their principal in ano- 
 ther.' 
 
 In Lockwood vs. Mersereau (6 Abbott Eep. 210), it was held 
 by Hoffman, Justice of the Superior Court, that an arrest by the 
 sheriff from whom the debtor had escaped, made in the State of 
 Illinois, Avas valid. "What the foreign State might do upon ha- 
 beas corpus, was a different question. JSTichoUs vs. IngersoU (7 
 John. Eep. 144) was relied upon. 
 
 Section 190. 
 
 " JBail, how proceeded against. 
 
 " In case of failure to comply with the undertaking, the 
 bail may be proceeded against by action only." 
 
 This has been unchanged since 1848. Section 165. 
 
 In England, the party had his election to proceed by scire fa- 
 cias on the judgment, or action of debt on the recognizance." The 
 common law procedure act of 1852 regulates the former. Both 
 bail may be called upon, in the same writ, to show cause why exe- 
 cution should not issue against them ; or, as their liability is seve- 
 ral, there may be a scire facias against each.^ On default of ap- 
 pearance, an execution issues. 
 
 The practice in our own State was similar ; the 35th section of 
 2 E. S. of 1830, p. 383, recognized the proceeding by scire facias. 
 See ibid. 680, § 23. 
 
 The Code has, however, no doubt, superseded this practice. 
 And the form of the pleadings, and course of proceeding, must 
 now be regulated by its provisions. 
 
 In Bowdoin vs. Coleman (6 Duer, 182), which was an action 
 upon an undertaking given in a suit for the recovery of personal 
 property under the 209th section of the Code, the complaint was 
 
 ' NichoUa m. IngersoU, '7 John. Rep. 144 ; Wheeler w. Wheeler, 7 Mass. p. 169 ; 
 Commonwealth m. Brlchett, 8 Pick. 138 ; Harp ss. Oagood, 2 Hill's N. Y. Kep. 216 ; 
 Respublica vs. Jailer, 2 Yeatea, 263 ; Rnggles vs. Corey, 3 Conn. 421 ; Johnson vs. 
 TompMns, 1 Bald. 678. 
 
 ° Petersdorf on Bail, p. 362. 
 
 " Luah'a Pract. 670. 
 
64 AEEEST AND BAIL. [§ 190. 
 
 objected to for want of various averments insisted upon as mate- 
 rial. They were examined and passed upon, according to the 
 rules of the Code. 
 
 So, in Slack vs. Heath (4 E. D. Smith, 95), the form of a com- 
 plaint in a similar action, which was held good by the court, may 
 be found. Mr. Justice Woodruff dissented upon one point. The 
 conformity to the Code, as illustrated by former rules of pleading, 
 was the question. 
 
 The defendants in such an action cannot question the liability 
 of their principal to the arrest. The undertaking imports such 
 liability, which they may not controvert. 
 
 In Gregory vs. Levy & Sedgwick (12 Barbour, 610), the ac- 
 tion was upon an undertaking given upon an arrest. The com- 
 plaint set forth the commencement of the original action against 
 Levy, his arrest under an order granted for that purpose, the exe- 
 cution of the undertaking, the substance of which was recited, 
 the recovery of a judgment, issue of an execution against prop- 
 erty and then against the person, and its return not found. Judg- 
 ment was then demanded for the amount recovered, interest, and 
 costs. 
 
 The answer set up strong grounds tending to show the ille- 
 gality and impropriety of the order of arrest. On demurrer, it 
 was held, that the Code had in no way affected the liability of 
 bail for a breach of the undertaking. They could not before, 
 and could not now, take the ground of illegality of the order of 
 arrest, or that no ca. sa. could issue on the judgment. 
 
 For the different defences which might have been pleaded in 
 an action under the former system, see Burrill's Prac, vol. 1, p. 
 233 ; Petersdorf on Bail, 284. 
 
 TJpon the question as to a variance in the frame of the action 
 from that when the bail was given, see Taylor vs. "Wilkinson (3 
 Adol. & Ellis), and the cases stated under section 204, ^05^. 
 
 An agreement between the plaintiff and defendant to defraud 
 the bail by making no defence, is a good defence to the bail in 
 an action on the recognizance. (Mott vs. Hagen, 1 Williams' 
 Vermont Eep. 208.) 
 
 It is no defence for the bail that the sheriff could have ar- 
 rested the defendant on a ca. sa. in the original suit, unless fraud 
 or collusion is averred. Thus, in Bradley vs. Bishop (7 Wendell, 
 352), pn demurrer to a plea, it was held insufficient to aver gross 
 
§ 191. J AEBEST AND BAIL. 65 
 
 misconduct on the part of the sheriff, without averring that it 
 was caused by the plaintiffs or their attorney. The action was 
 upon the recognizance of bail. 
 
 Special bail may insist, by way of plea in bar, that, before the 
 breach of the condition, an agreement was entered into by the 
 plaintiff that the defendant in the original action might depart 
 the State, and that no proceedings should be had until his return. 
 (Clark vs. Niblo, 6 Wendell, 236.) 
 
 Section 191. 
 
 " Hail, 7ww exonerated. 
 
 " The bail may be exonerated either by the death of the de- 
 fendant, 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 fur- 
 ther time as may be granted by the court." 
 
 This section is the same now as it was enacted in 1848, except 
 the clause, " or his imprisonment in a State prison," which was 
 adopted in 1849. 
 
 Death of principal. — The death of the priaicipal is a ground for 
 the discharge of the bail. The question is, at what time, or on 
 what event, will such death give an absolute right to the bail to 
 be exonerated, and when will the right terminate? 
 
 In England, the death, at any stage of a suit before the return 
 of the capias ad satisfaciendum against the princijDal, gave the 
 right. But the court refused to relieve the bail, where the death 
 took place after the return-day of the ca. sa., though it was not 
 actually returned.' 
 
 In Olcott vs. Lilly (4 John. Eep. 407), on motion to enter an 
 exoneratur, the court said there was no case in which the death 
 of the principal, after the return and filing of the ca. sa., has been 
 
 ' 1 Taney vs. Berry, 2 Ld. Eay. 1452; 2 Strange, 71*7; Glyer j)«. Yates, 1 
 Strange, 517 ; Eowlinson -es. Gunsten, 6 T. R. 284. 
 5 
 
66 AEEEST AND BAIL. [§ 191. 
 
 allowed as a ground of relief. All the cases agree that after the 
 bail is fixed dejure, they take the risk of the death of the prin- 
 cipal. The time which is allowed the bail ex gratia is at their 
 peril. 
 
 By the Eevised Statutes of 1830 (Yol. 11., p. 383, § 34), when 
 the defendant in a suit shall die after the return of the execution 
 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. 
 
 In Davidson vs. Taylor (12 Wheaton, 604), the English rule 
 was recognized as prevailing in Maryland, that in the case of 
 the death of the principal, bail is fixed by the return of the 
 ca. sa^ Courts had allowed a surrender within a limited time 
 after the return of the scire facias against them ; but this rule 
 had never been applied to cases where the principal dies before 
 the return of the scire facias. Death after the return of the 
 ca^ sa. cannot be pleaded. 
 
 In "White vs. Blake (22 "Wendell, 612), the rule was recog- 
 nized, that if the principal had died after the return of the ca. sa., 
 the bail could not be relieved. 
 
 In Merritt vs. Thompson (1 Hilton, 550), in the Court of Com- 
 mon Pleas, at General Term, the rule that the death of the prin- 
 cipal was ground of a discharge was acted upon ; but there is 
 nothing bearing upon the question of the time for the surrender. 
 
 Sickness of principal. — Bail was allowed to surrender their 
 principal, and obtain an exoneratur, after the eight days allowed 
 ex gratia for surrender, where the principal could not be surren- 
 dered within that time by reason of sickness. No order to stay 
 proceedings^ or rule to extend the time, was necessary, the bail 
 not knowing of the sickness within the time. (Thomas vs. Bulke- 
 ly, 5 Cowen, 25.) This appears to have settled the practice con- 
 trary to some English cases. 
 
 Imprisonment in a State prison. — By the rules of our courts, 
 before the Code, a confinement for life in the State prison entitled 
 the bail to a discharge, but not imprisonment on a charge of fel- 
 ony, or to the penitentiary for a short period. 
 
 Thus, in Cathcart vs. Cannon (1 John. Cases, 28), an exoneratur 
 was refused where the party was confined in prison on a charge 
 
§ 191. J AEEEST AND BAIL. 67 
 
 of felony, but granted after his imprisonment for life in the' State 
 prison, upon a conviction. 
 
 So, in Loflin vs. Fowler (18 John. Eep. 335), on a motion to 
 enter an exoneratur on a bail piece, it appeared that the defend- 
 ant had been indicted and convicted of passing counterfeit money 
 in Yermont, and had been sentenced to the State prison of that 
 State for thirteen years. The court said, the defendant had been 
 taken out of the power of his bail by the judgment of the law. 
 The motion was granted. 
 
 In the Phoenix Fire Insurance Comp. vs. Mowatt (6 Cowen, 
 599), it was decided that special bail would not be discharged 
 where the principal had been imprisoned in the penitentiary for 
 a period of two years only. 
 
 In England, upon a conviction of felony and sentence of 
 transportation, the bail will be discharged, and the course is by 
 motion.' 
 
 The course seems to have been to bring up the prisoner on a 
 habeas corpus, and to order an exoneratur upon his being given 
 into the custody of the sheriff." 
 
 Such appears also to be the course in England.' 
 
 It is presumed that this would be unnecessary under the Code ; 
 that a motion, upon full proof of the facts and notice, would 
 suffice. . 
 
 Custody upon process. — If the defendant is in custody upon 
 other process, a writ of habeas corpus cum causa was the former 
 English practice, which issued of course in cases of a detainer 
 on civil process." 
 
 Legal discharge from the obligation. — If the defendant obtained 
 his certificate of discharge in bankruptcy before the bail became 
 fixed, the latter would be discharged ; and a motion for exoneratur 
 was the proper course in England. ° Tne same rule applies to a 
 discharge under the Insolvent Debtor Act. In such a case the 
 proceeding is siimmary, without the necesfeity of a render, and the 
 
 ' Wood va. Mitchell, 6 T. R. 247; Fowler vs. Dunn, 4 Burrows. 2034. 
 ^ Bignall vs. Forest, 2 John. Rep., 481 ; Bigelow vs. Johnson, 16 Mass. Rep. 218. 
 ' Lush's Stephens' Practice. 
 * Petersdorf on Bail, 407. 
 
 ' Aylett vs. Harford, 2 Hy. Black. 208; Petersdorf on Bail, 390, 392; Lush's Pr. 
 572 ; Jones vs. Ellis, 1 Adol. <fe EUia, 382. 
 
68 ABEEST AND BAIL. [§ 191. 
 
 application may be made during the period that the bail have 
 the power of rendering.' 
 
 In ' Seaman vs. Drake (1 Caine's Eep. N. Y. 9), the principal 
 was discharged under an insolvent law, and, on motion, an exon- 
 eratur was ordered. 
 
 In Franklin vs. Thurber (1 Cowen's Eep. 427), the Court 
 said — The rule that, where a defendant is discharged under an 
 insolvent law, we will discharge the bail on motion, is grounded 
 on the idea that an actual surrender would be an idle ceremony, 
 because the principal must be immediately liberated. 
 
 In the same case it was held that, where the plaintiff had 
 brought scire facias on the judgment, to test the validity of the 
 discharge, and the defendant had made default, and then a fi.fa. 
 and a ca. sa. had issued, and the last returned non est, the bail 
 could not be exonerated, because the principal could not be dis- 
 charged. 
 
 "Where the discharge had been obtained at such a stage of the 
 suit as enabled the debtor to plead it, and he omitted to do so, 
 but allowed judgment to be entered, he and the bail were con- 
 cluded." The latter must resort to a surrender, if that remains 
 open to him. 
 
 The discharge cannot, on such an application, be questioned 
 for irregularity or fraud.^ 
 
 This appears to be different from the rule in England. The 
 court will not exonerate, upon the defendant's obtaining a certifi- 
 cate of bankruptcy, without giving the plaintiff an opportunity of 
 trying, by an issue, whether the certificate was fairly obtained.' 
 
 Foreign discharge.— The effect of a foreign discharge from 
 debts has been considered in several cases, on motions to dis- 
 charge on common bail. 
 
 In Whittingham vs. Be la Eienx (2 Chitty, 53), and Eai'lier vs. 
 Languish (ibid. 55), it was held that, where the question was how 
 far a cessio honorum, in* another place affected the debt, it must 
 be raised by plea, and could not be set up on a motion to dis- 
 
 1 White vs. Blake, 21 Wendell, 612. 
 
 ' Campbell vs. Palmer, 6 Cowen, 596; Post vs. Riley, 18 John. Eep. 64. 
 ' Cunningham vs. Brown, 6 Cowen, 289 ; TrumbuU vs. Healy, 21 Wendell, 670. 
 ' Woolcott vs. Leicester, 6 Taunton, 75 ; Stacey vs. Frederici, 2 Bos. & Pull. 310 ; 
 Waiison vs. Smith, 3 Douglass, 96. 
 
§ 191.] AEEEST AND BAIL. 69 
 
 charge the party from imprisonment on filing common bail. See, 
 also, Phillipotts vs. Eeed, 3 J. B. Moore, 244 ; Bamfield vs. An- 
 derson, 5 ibid. 331. 
 
 In Bretillot vs. Sandors (4 Scott's Eep. 201), the defendant had 
 been a trader in France, where he became bankrupt. Proceed- 
 ings similar to those under the English law took place ; a divi- 
 dend of property was made, and the plaintiff took his share. Both 
 the parties coming to England, the defendant was arrested for the 
 balance of the debt. On a motion to discharge him, the court 
 said — The diflBculty was,,it would be trying a very grave question 
 upon aiEdavits. What was urged might, if true, be a good ground 
 of defence ; but the court conld not interfere in that summary way. 
 
 Sicard vs. Whale (11 John. Eep. 194), in our court is to the 
 same effect. " 
 
 Perhaps, in a case perfectly free from doubt as to the legal 
 operation of the discharge, a motion would not always be inad- 
 missible. A few leading cases upon foreign discharges may be 
 referred to : Phillips vs. Allan, 8 Barn. & Cress. 4YT ; Cook vs. 
 Moffat, 8 Howard's N. S. Eep. 295 ; Donelly vs. Corbet, 3 Sel- 
 den's Eep. 500 ; Peck vs. Hibbard, 26 Vermont, 698. 
 
 Extension of time to surrender. — In Gilbert 'ws. Bulkley & Chaf- 
 fin (1 Duer, 668), the motion for exoneration was made after 
 twenty days from the commencement of the action against the 
 bail, and no order for further time had been obtained. The 
 chief justice, Oakley (upon consultation), held, that whatever 
 might be the construction of section 191, if it stood alone, yet 
 that the general words of section 174 certainly gave the court 
 the discretionary power to allow this act to be done after the 
 time limited by the Code. 
 
 There does not seem anything in the 191st section itself pre- 
 scribing that the surrender must be within the twenty days. 
 During that time, it is matter of right. After that time it may 
 (within the fair construction of the language) be matter of favor. 
 
 By the English rule the time will not in general be enlarged 
 for the bail to surrender. But indulgence has been granted in 
 cases where, from the character of the facts, injustice would have 
 ensued'from the refusal of the application.' 
 
 ' Petersdorf on Bail, p. 403, and cases ; Harris vs. Glors, 2 Chitty Eep. 101. 
 
70 AEEEST AND BAIL. [§ 192. 
 
 In Baker m. Curtis (Supreme Court Chambers, March 1860, 
 Allen, J.), it was held that though after iie twenty days had 
 expired from the commencement of the action, the bail had-be- 
 come fixed, yet the court could within that time enlarge the time 
 for a surrender ; and probably after that time it might be per- 
 mitted, on a clear case being made which would have entitled 
 him to an enlargement if applied for within the time. 
 
 The affidavit of the bail in that case was unsatisfactory. It 
 did not give a single date, nor state what means he had taken at 
 any time to ascertain where the principal was and to effect his 
 surrender. He stated, generally, efforts to do so. He should 
 have stated what he did, and when he did it. He actually showed 
 laches, and a voluntary sufferance of the defendant to go out of 
 the State. The motion to exonerate the bail was denied.' 
 
 Sectioirl9S. 
 
 " Delivery of wndertaking to plaintiff, and its acceptance 
 or rejection hy hirfi. 
 
 " Within the time limited for that purpose, the sheriff shall 
 deliver the order of arrest to the plaintiff or attorney by whom it 
 is subscribed, with his return endorsed, and a certified copy of 
 the undertaking of the bail. The plaintiff, within ten days there- 
 after, 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." 
 
 The 167th section of 1848 was substantially the same as the 
 present enactment. It was revised in 1849, and has since re- 
 mained the same. 
 
 Until the order and copy of the undertaking is delivered, the 
 plaintiff, I apprehend, is not bound to take notice that bail has 
 been given.' 
 
 Waiver of exception. — After notice of non-acceptance of the 
 bail, the plaintiff may waive his objection, provided the waiver 
 be made before the time for justifying expires. 
 
 ' Reported, 10 Abbott, 2'79. " Butterfield m. Cooper, 6 Cowen, 608. 
 
§ 193.] AEEEST AND BAIL. Yl. 
 
 In The People vs. The N. Y. Superior Court (20 Wendell, 
 607), it was declared -to be well settled that the bail cease and 
 are to be deemed out of court, if they do not justify within the 
 time allowed, after exception ; and after this, it may well be that 
 the plaintiff cannot waive the exception, and that even the attor- 
 neys cannot do so without the consent of the bail (9 "Wendell, 
 478) : their contract is at an end. 
 
 But if a waiver takes place before the time of justification 
 has expired, I am unable to discover any reason against giving 
 it effect, either in respect to the bail themselves or their principal. 
 Notice of e:!^ception must be in writing, and it may well be that 
 a parol waiver would be insufficient. 
 
 The notice must be in writing, and should be entitled in the 
 cause. It should be a perfect instrument in itself." 
 
 Section 193. 
 
 '■'■Notice of justification. New hail. 
 
 " On the receipt of such notice, the sheriff or defendant 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 (specifying 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 prescribed in 
 section 187." 
 
 Section 168 of 1848 was different, in stating that " on the re- 
 ceipt of i^Ae undertaking and notice;" in making the justification 
 to be " before a judge ;" omitting the words " of the court or coun- 
 ty judge;" and in referring to section 162 instead of section 187. 
 
 In 1849, the change was made that the justification must be 
 before " a judge of the court or county judge, or justice of the 
 peace." In 1851 it was amended as it now stands. 
 
 ' Cohn vs. Davis, 1 Hy. Black. 80; Eex m The Sheriff of Middlesex, 1 Chitty 
 Eep. 742. 
 
'TB AEEEST AND BAIL. [§ 193. 
 
 A notice of justification is, as between the parties, a waiver 
 of any irregularity in the notice of an exception.' 
 
 The description and places of residence must be stated with 
 reasonable precision. The addition of the trade or occupation 
 should be made. Any misdescription by which the plaintiif is 
 misled, or does not get a reasonable clue to the party to enable 
 him to make inquiry, makes the notice defective." 
 
 The residence must not be stated in too general terms ; at 
 " Liverpool," " Nottingham," &c., or any other place of mag- 
 nitude, is an insufficient notice. The principle appears to be, that 
 where the bail live in or near any smaller lieu connus, the naming 
 of the larger district will not do.' 
 
 "Where any intention to mislead is repelled by the affidavits, 
 time to add to and correct the notice, and to justify, will be al- 
 lowed.'' • 
 
 Bail excepted to no longer bail. — In several cases it has been 
 laid down that bail who are excepted to, and do not justify, 
 cease to be bail, and are entitled to an exoneratur.'' These cases 
 are subject 'to the distinction taken in The People vs. The New 
 •York Superior Court (20 Wendell, 607), before stated {ante, p. 71). 
 In that case they were tfU reviewed. 
 
 Motions for exoneratur were made in all of them ; but it would 
 seem as if the exemption took effect from the exception, or from 
 the expiration of the time to justify, if there was no waiver of 
 the exception before that period, and that the bail was entitled 
 to it at any time, upon payment of costs. See Humphrey vs. 
 Leite, Burrows, 2107, and cases cited ; Toulk vs. Burke, 1 Bl. 
 Kep. 462 ; Bramwell vs. Farmer, 1 Taunton,- 429 ; Gould vs. Hol- 
 strom, 7 East, 580 ; Taylor vs. Shaj)land, 3 M. and S. 328 ; Adnam 
 vs. Wilks, 6 Barn, and Cress. 237. 
 
 New bail. — If new bail is given, instead of the former justify- 
 
 ' Cohn vs. Davis, 1 Hy. Bl. 80. 
 
 ^ Colman vs. Roberts, 1 Chitty's Rop. 88 ; vs. Costar, 5 Taunton, 55-1 ; Bvoivn's 
 
 Bail, 5 Dow. Pr. Ca. 220. 
 
 " Jackson's Bail, 1 Chitty Rep. 492 and «.; Anon., 3 Moore, SIS ; Taylor's Bail, 1 
 Chitty, 603 ; Petersdorf on Bail, 295 ; and Lush's Practice, 646, 547. 
 
 ■■ Colman vs. Roberts, 1 Chitty Rep. 88 ; Hayward's Bail, ibid. 
 
 ' People vs. Judges of Onondaga, 1 Cowen, 54 ; Flack vs. Eager, 4 Johns. Rep. 1 85 ; 
 Thorp vs. Faulkner, 2 Cowen, 514. 
 
§ 194.] AEEE8T AND BAIL. 73 
 
 ing, a new \indertaking must be entered into, and produced to 
 the judge. A copy should, it is presumed, be delivered to the 
 sheriff, and perhaps to the plaintiff. 
 
 Section 194. 
 
 " Qualifications of hail. 
 
 " 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 bail to justify severally in amounts less than 
 that expressed in the order, if the whole justification be equiva- 
 lent to that of two sufficient bail." 
 
 Tlie only diflference between this section and the 169th section 
 of 1848 is the addition of the words " or a justice of the peace." 
 
 The first essential qualification is residence. The meaning of 
 this phrase is discussed under the title of Attachment, section 
 227, post. 
 
 The phrase " householder " has been used in the Code, instead 
 of " housekeeper," which we find in the English and our former 
 rules. That phrase meant " a person actually occupying part or 
 the whole of a house, being the party liable to the landlord for 
 the entire rent, and assessed or liable for the parochial rates and 
 king's taxes.' 
 
 It has been held in England that the house must be within 
 the jurisdiction of the court; a person with lodgings in London, 
 owning a house in Scotland, was not admissible." 
 
 But the Code requires merely that the bail be a householder 
 within the State ; and I believe the very general construction 
 has been that it is enough to have a hoase at any place within it. 
 
 ' Petersdorf on Bail, 273. ' Anon., 1 Bowling Pr. Cas. 1. 
 
74r AEEEST AND BAIL. [§ 194:, 
 
 ) 
 
 It is not material that the bail should have the exclusive ]30s- 
 session of the house, provided he reside on the premises, and is 
 responsible for the taxes and rent. The latter qualification is 
 essential ; for where the bail occupied every room in the house 
 except one apartment, which the landlord used who paid the 
 taxes of the whole, the bail was rejected.' 
 
 A person who lived at lodgings, but paid his proportion of 
 taxes and rates of a house occupied by his partner, and where 
 the business was carried on, was held admissible.'' 
 
 So, where the party had taken a house occupied by lodgers, 
 and had received rent from one of them, he was allowed, without 
 actual occupation.' 
 
 A person living in a house divided into several sets of resi- 
 dences, but a principal occupier, paying the rent and taxes of the 
 whole, cannot be bail ; but persons living in chambers, where 
 each set of apartments constitutes a separate dwelling, and each 
 occupier is assessed and liable for his separate rates and taxes, 
 may be so.* 
 
 It has been held not to be essential that the party has been 
 actually assessed for the taxes and parochial rates ; it is sufficient 
 if he be chargeable.' 
 
 It is to be i^otieed that the phrase housekeeper, in the English 
 rule, is not equivalent to householder. On the contrar}'', it has 
 been held that an affidavit that the party was a householder was 
 insufficient." 
 
 In so far as the practice has fallen within my own experience, 
 it appears to require onlj^irst, actual occupation, for a time of 
 some duration, of a tenement, or a portion of it ; next, ownership 
 of such, and reception of rent ; and in each case without regard 
 to the fact by whom the taxes are paid. - 
 
 Freeholders. — The next, or rather alternative, qualification is, 
 that the party must be a freeholder. If a freeholder, it is unne- 
 cessary for him to be a householder. 
 
 The very general practice, I believe, is that adopted in the 
 
 ' Blade's Bail, 1 Chitty Rep. 502. ' Petersdorf, 2'76, and cases. 
 
 ' Savage vs. Hall, 1 Bingham, 430. ^ Ibid. ; Anon., Lofft, 328. 
 
 ' Coehn vs. Waterhouse, 8 Moore's Rep. 365. « 1 Dowl. Pr. Cases, 112. 
 
§ 194.] AEEEST AND BAIL. 75 
 
 Superior Court of New York, to consider that the ownership of 
 a freehold in any part of the State meets the requirement of the 
 Code. Its language is, " a freeholder within the State." 
 
 The point does not appear to be fully settled in England. 
 
 In Boddy vs. Leyland (4 Burrows, 2526), the hail justified in 
 £9,000, inclusive of landed property in Jamaica, and was re- 
 jected. The same rule was laid down in Wrightwich vs. Picker- 
 ing (Forest's Exch. Eep. 138). But in Smith vs. Scamdrett (1 
 Wm. Bl. 444), where one of the bail had estates in Antigua, but 
 no effects in England, the court declared that merely having no 
 property in England was not a suflftcient objection. 
 
 In Tomsey vs. ITapier (8 Taunton, 148), the Court permitted 
 bail to justify as tenant by the courtesy of an estate in the Isle of 
 Man. 
 
 In Levy's Bail (1 Chitty's Eep. 255), Best, J., held that bail 
 could not justify in respect to property abroad. 
 
 In Graham vs. Anderson (4 M. & Sel. 371, 1 Chitty Eep. 
 285, ?!/.), one of the bail, a natural-born citizen, was permitted to 
 justify partly in respect of a landed estate in Surinam, and partly 
 in respect of property in England. Bayley, J., observed, that " the 
 plaintiff might, by pressing the bail, compel him to render his 
 property abroad available." He afterwards said he had looked 
 into the cases, which were contradictory, and that it must not be 
 taken for granted that a party can justify in respect of proj^erty 
 abroad, when he has no other property. 
 
 The provision of the Code appears to me to preclude a prop- 
 erty qualification, when the property is out of the State; and as 
 the jurisdiction of the Supreme Court extends over the State, and 
 judgments in the Superior Court and Court of Common Pleas 
 can be rendered effectual to reach property in any part of the 
 State, it seems to me that a freehold situate in any part of it is a 
 qualification. 
 
 Amount. — This is fixed, by the section, to be the amount speci- 
 fied in the order of arrest, exclusive of property exempt from exe- 
 cution. The affidavit, or justification, is to include the statement 
 that the party is worth the sum specified over and above all just 
 debts and legal liabilities. In Hobson's case (2 Chitty Eep. 95), 
 it was ruled that an affidavit that A. and B., and each of them, 
 
^^ AEEEST AND BAIL. [§ 194:. 
 
 were worth double the sum sworn to in the affidavit to hold to 
 bail, exclusive of all debts due to any other person, was suf- 
 ficient. (See Burrill's Pr. 400.) 
 
 The clause allowing more than two bail to justify in amounts 
 less than that specified in the order is taken from the practice of 
 the King's Bench and the Exchequer. Three or four persons 
 have been allowed to become bail where, from the magnitude of 
 the amount, no inconvenience would arise to the plaintiff from 
 having to seek small sums from numerous parties. (Petersdorf 
 on Bail, 268, and cases.) 
 
 Disqualifications of bail. — The former rules as to the parties 
 disqualified to become bail remain unaltered by the Code. 
 
 In Wheeler vs. Wilcox (7 Abbott, 74), the court say : " The 
 Code (§ 194) prescribes expressly the qualifications of bail, with- 
 out referring to what have always been held by the common law 
 as disqualifications. The Code had left the law as it had always 
 been." 
 
 In Miles vs. Clark (2 Bosworth, 709), the same principle was 
 declared, and applied to the case of an attorney and counselor. 
 
 It may be stated as a general rule, that those persons who are 
 exempted from being arrested themselves may not become bail 
 for others. This is clearly so where the exemption is of a perma- 
 nent character. 
 
 Ambassadors. — Ambassadors are clearly inadmissible, and 
 probably their registered domestics are equally so. 
 
 Members of Legislatures. — Members of the House of Commons 
 are disqualified, and their exemption is a permanent one from the 
 time of their election until the prorogation or final dissolution of 
 Parliament.* 
 
 In Graham vs. Sturt (4 Taunton, 248), the objection was on 
 the general ground that the proposed bail was a member of Par- 
 liament. The Court said : " We think he ought not to be bail, 
 the difficulty of proceeding against him." 
 
 And in Duncan m. Hill (1 Dowl. and Ry. 126), the rule was 
 adopted in the King's Bench, as it had prevailed before in the 
 Common Pleas, that a member of the House of Commons could 
 not be bail. 
 
 ' See Petersdorf on Bail, 49. 
 
§ 195.] AEEEST AKD BAIL. 77 
 
 I judge that the disqualification lasts while the oiScial char- 
 acter exists. The delay which may attend the proceeding is the 
 ground of the rule. "Whether the disqualification exisrts at all as 
 to members of Congress, or of the Legislature, and, if it does, 
 whether it does not exist only during the period they are privi- 
 leged from being arrested, are points I have not found determined 
 or examined in any case. 
 
 Attorneys. — In the case of Miles vs. Clarke, before cited, the 
 subject was very fully examined by Justice Moncrief, of the Su- 
 perior Court, who traced the history of the disqualification. It 
 was held that the Code had not changed the former rule, and sec- 
 tion 469 retained the practice. The attorney could not be bail. 
 
 According to the express rule of the Court of Common Pleas, 
 and the settled practice of King's Bench, persons indemnified by 
 the defendant's attorney cannot be admitted as bail ; for if this 
 practice were allowed, it would be a mere evasion of the rule, 
 that no attorney should be bail.' 
 
 Sheriff and officers. — By the English rule of long standing, 
 no sheriff's ofiicer, bailiflp, or other person concerned in the exe- 
 cution of process, should be permitted or suffered to become bail 
 in any action or suit depending in the courts. 
 
 In Bailey vs. Warden (20 John. Eep. 129), the sheriff of the 
 county of Steuben, with another person, had become special bail. 
 The English rule was recognized and adopted, and the justifica- 
 tion set aside. 
 
 Section 195. 
 
 '■^Justification of hail. 
 
 "Eor 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 sufiiciency, in such manner as 
 the judge or the justice of the peace in his discretion may think 
 
 ' Petersdorf on Bail, 281. 
 
78 AEEEST AND BAIL. [§ 196. 
 
 proper. The examination shall be reduced to writing, and sub- 
 scribed by the bail, if required by the plaintiff." 
 
 » 
 The section as enacted in 1848 was the same as at present, 
 
 except that the words " or a justice of the peace," where they 
 occur, were omitted ; and the last words of the section, " if re- 
 quired by the plaintiff," were also omitted. The amendment of 
 1849 added these words ; and the section has so remained since 
 that time. 
 
 By the 5th of the Eules of Court, whenever bail are required 
 to justify, they shall justify within the county where the defend- 
 ant shall have been arrested, or where the bail reside. 
 
 It is usual for the defendant's attorney to attend with the ordi- 
 nary affidavits of sufficiency. If the plaintiff should omit to 
 attend, those laid before the judge will be sufficient to warrant 
 the allowance. The English practice is similar. (Lush's Prac- 
 tice, 553, 554.) 
 
 If the plaintiff attend, he may proceed to examine the bail at 
 large. 
 
 In a case at chambers before Mr. Justice Hoffman of the Su- 
 perior Court, it was ruled that the ordinary affidavits of suffi- 
 ciency and qualification should be laid before the judge, even 
 when the plaintiff's attorney attended and examined. (See Kules 
 of Supreme Court.) The examination by the plaintiff was in the 
 nature of a cross-examination, and should be based upon the affi- 
 davit. See Laporte's Bail, 3 Dowling, 110, and Van Wezel vs. 
 Van "Wezel, 3 Paige, 38 ; Burrill's Practice, vol. 1, p. 401. 
 
 Section 196. 
 
 " Allowance of bail. 
 
 " If the judge or justice of the peace find the bail sufficient, 
 he shall annex the examination to the undertaking, endorse his 
 allowance thereon, and cause the same to be filed with the clerk ; 
 and the sheriff shall thereupon be exonerated from liability." 
 
 Section 171 of 1848 was slightly different. The present sec- 
 tion has remained since 1849. 
 
§ 197.] AEEEST AND BAIL. 79 
 
 Tlie allowance is endorsed, in general practice, upon the un- 
 dertaking, in the form of an approval of the latter. Upon filing 
 them with the clerk, the sheriff appears to be exonerated without 
 any further order. 
 
 The section makes it the duty of the judge to cause the ex- 
 amination and undertaking to be filed. 
 
 Section 197. i 
 
 ^' Deposit of money with the sheriff. 
 
 " The defendant may, at the time of his arrest, instead of giv- 
 ing bail, deposit with the sheriff the amount mentioned in the 
 order. The sheriff shall thereupon give the defendant a certifi- 
 cate of the depdsit, and the defendant shall be discharged out of 
 custody." 
 
 This was the 172d section of 18i8, and no changes have been 
 made in it since that time. 
 
 By the statute of 43 George III., ch. 46, § 2, it was enacted 
 that all persons who shall be arrested upon mesne process in 
 England and Ireland shall be allowed, in lieu of giving bail to the 
 sheriff, to deposit in the hands of the sheriff, by delivering to 
 him or his under-sheriff, or other officers to be by him appointed 
 for that purpose, the sum endorsed upon the writ by virtue of 
 the aiBdavit for holding to bail in that action, together with ten 
 pounds in addition to such sum, to answer the costs which may 
 accrue or be incurred in such action, iip to and at the time of 
 the return of the writ ; and shall thereupon be discharged from 
 such arrest, as to the action in which he shall so deposit the sum 
 endorsed on the writ. 
 
 So, by the act of 7 and 8 of Geo. IV. (ch. 71), a similar pro- 
 vision is made for a deposit instead of putting in and perfecting 
 special bail, but twenty pounds are to be paid in as security for 
 the costs. 
 
 This deposit is to be made at the time of the arrest, and in lieu 
 of the bail. It is presumed that the party cannot be held at all 
 after depositing the money. 
 
80 AKEEST AND BAIL. [§ 198. 
 
 There does not seem any obstacle to making the deposit, and 
 thus releasing the bail if it has been first given, at any time before 
 judgment. The 199th section provides for taking out the money, 
 if deposited, upon giving bail at any time before. The act of 
 Geo. ly., ch. 71, § 4, contemjplates such a case, and appears to 
 warrant a deposit, and exoneration of bail, at any period during 
 the suit. 
 
 Thus, in Salter vs. Weiner (6 Abbott, 191), the defendant had 
 been arrested by the sheriff of Niagara county, under an order 
 of a judge of the First District, and held to bail in five hundred 
 dollars. He deposited $500 with the sheriff, who remitted it to 
 the clerk in New York. The defendant subsequently procured 
 bail who justified. An order to refund the money was then ob- 
 tained. But, before the bail had justified, the plaintiff obtained 
 a warrant of attachment in another suit against the defendant, 
 and attached the $500 in the hands of the county clerk. It was 
 shown that the money belonged to a third person, and not to the 
 defendant, to whom it had been lent to keep him out of jail. It 
 was held to be the property of Weiner the defendant, and liable 
 to the attachment. 
 
 Section 198. 
 
 " Payment of money into court hy the slieriff. 
 
 " 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 payment, the same proceedings may be 
 had on the official bond of the sheriff, to collect the sum depos- 
 ited, as in other cases of delinquency." 
 
 The 173d section of the Code of 1848 was nearly identical in 
 its language. In 1849 it was enacted as it now stands. 
 
 By the corresponding English statute (43 Geo. III., ch. 46, 
 § 2), the sheriff, at or before the return of the writ, must pay into 
 court the money deposited. 
 
§ 199.] ARREST AND BAIL. . 81 
 
 It deserves consideration whether, under the law with us, the 
 sheriff may not be also proceeded against summarily to compel 
 this payment, as well as be subject to proceedings on his bond. 
 The Kevised Statutes (2 E. S. 534, § 1) as to proceedings for 
 contempts cover such a case. It would be a willful neglect of a 
 duty. The statute regulating the proceedings on an official bond 
 is found, 2 E. S. 476. 
 
 Section 199. 
 
 ^^Substituting hail for deposit. 
 
 " If money be deposited, as provided in the last two sections, 
 bail may be given and justified upon notice, as prescribed in sec- 
 tion 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 deposited be refunded by the sheriff 
 to the defendant, and it shall be refunded accordingly." 
 
 This section was enacted in the same form in 1848 — being 
 section 168. 
 
 In a case in January, 1860 (Superior Court, Hoffman, Jus- 
 tice), the bail appeared before the judge and justified. Their 
 affidavits were annexed to the undertaking, and an order was in- 
 dorsed on this approving and allowing the bail and undertaking, 
 and ordering the money to be refunded to the defendants. By 
 the English statute (7 and 8 Geo. IV., cap. 71), the party making 
 the deposit may receive the same^out of court, upon putting in 
 and perfecting special bail, at any time before issue joined in 
 law or in fact, or final or interlocutory judgment signed. 
 
 After issue joined, or after judgment, it is too late to apply ; 
 but the court has granted a rule nisi, with a stay of proceedings, 
 until it might become absolute, to prevent issue being joined.' 
 
 If the money is not thus withdrawn, it must remain in court 
 to abide the event of the action. The courts have no power to 
 
 ' Bull vs. Turner, 1 Meeson & Wekby, i'l ; Welshman vs. Sturgess, 13 Q. Bench 
 Rep. 556 ; Bloor vs. Cox, 6 Dow. Pr. Ca. 266. 
 6 
 
AUBEST AST) BAIL. 
 
 [§ 200. 
 
 apply it to a plea of tender or payment into court. (Stultz vs. 
 Heneage, 10 Bingh. 561.) 
 
 In Douglass vs. Stanborough (3 Adol. & Ellis, 316), where the 
 friend of the arrested party had made a deposit on his behalf in- 
 stead of bail, which deposit had been paid into court, and the de- 
 fendant surrendered himself, it was held, that the depositor might 
 have the money returned on motion, the defendant consenting. 
 The render was equivalent to the putting in and perfecting of 
 bail. 
 
 Section 200. 
 
 " Money deposited^ Tiow applied or disposed of. 
 
 " Where money shall have been so deposited, if it remain on 
 deposit at the time of an order or judgment for the payment of 
 money to the plaintiff, the cleric shall, under the direction of the 
 court, apply the same in satisfaction thereof; and, after satisfying 
 the judgment, shall refund the surplus, if any, to the defendant. 
 If the judgment be in favor of the defendant, the clerk shall re- 
 fund to him the whole sum deposited and remaining unapplied." 
 
 This section has remained in the same language since the first 
 passage of the Code, in 1848. It was the 175th section of that 
 year. 
 
 By the English practice, when the suit has been terminated 
 by judgment or otherwise, the successful party may apply, on an 
 affidavit of the facts, to have it paid out. He is bound to resort 
 to this fund in the first instance, and cannot pass it by and issue 
 execution for the whole amount of the judgment. Cause against 
 the rule may be shown, as that tlie party has brought error, or 
 obtained a new trial.' 
 
 ' Lush's Practice, 640, and cases. 
 
§ 201.] AEEEST AND BAIL. 
 
 Section 201. 
 
 " Sheriff, when liable as iail, and his discharge from 
 
 liability. 
 
 " 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 justifica- 
 tion of bail, as provided 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." 
 
 The 176th section of 1848 was in all respects the same, except 
 in the numbers of the sections referred to. It was enacted in its 
 present form in 1849. 
 
 In these instances, the sheriff becomes the substituted bail to 
 the plaintiff, and the bail taken by him become bail to him. (In 
 re Taylor, 7 Howard, 212.) As bail, he becomes entitled to all 
 the rights and remedies which he would have possessed had his 
 name been on the undertaking. 
 
 In Buckman vs. Carnley, sheriff (9 Howard's P. 180), the 
 sheriff had arrested the original defendant, and taken the usual 
 undertaking. Notice of non-acceptance was given by the attor- 
 ney of the plaintiff under section 192, and the bail did not justify, 
 nor was other bail given, nor a deposit made. 
 
 A ca. sa. was returned, " not found," on the 5th of October, 
 1850. On the 20th of November the present action was com- 
 menced. On the same day a notice was given, signed by Mathew 
 H. Chase (deputy sheriff), of an application to exonerate him as 
 bail, for the 30th of the month, accompanied with a paper, pur- 
 porting to be an undertaking signed by him as bail, filed Oct. BO, 
 1850, and a certificate by the under sheriff that the defendant 
 was in the custody of the sheriff. 
 
 "Woodruff, Justice, held : The liability of the sheriff as bail 
 was fixed, bail not having justified, nor a deposit been made. He 
 had become liable as bail, but only as*8uch, and might be dis- 
 
84 jlreest and bail. [§ 201. 
 
 charged in the same manner. That the sheriff could, after action 
 brought against him, be exonerated by a suiTender under section 
 191. An opportunity was given to him to make a regular appli- 
 cation. 
 
 In McGregor vs. "Willett, sheriff (17 Howard Pr. 439), the 
 late sheriff applied to be exonerated, upon the surrender and com- 
 mitment of Cohen to the custody of the present sheriff. The 
 action against him had been commenced in December, 1858, to 
 make him liable for an escape. Cohen had been arrested in an 
 action against him in October, 1857. After judgment, he was 
 taken and imprisoned on execution against his person. On the 
 10th of December, 1858, he escaped. . He broke jail without the 
 privity or knowledge of the defeudaut. An order to extend the 
 time for a surrender had been granted on the 24th of May, 1859. 
 He was surrendered about that time. The present sheriff had 
 Cohen in custody, on an execution in another suit. The commit- 
 ment indorsed on the execution served on the sheriff was held 
 equivalent to actual arrest and commitment, and operated as a 
 detainer. 
 
 The court (Hoffman) said : By the Code, in case of an escape, 
 or that bail has not been given or justified, the sheriff becomes 
 responsible as bail. (§ 201.) 
 
 His privilege as bail must be commensurate with his liability.. 
 Whenever bail given by another can be relieved, lie may be. 
 Bail can surrender within the time prescribed in section 191, and 
 there was nothing to create an exception in the case of the sher- 
 iff. The application was in time, and was granted. 
 
 In Sartos vs. Merceques (9 Howard, 188), the doctrine of 
 Buckman vs. Carnley was reiterated. The shei-iff rearrested a 
 defendant who had failed to justify. It was held that as bail he 
 could do this, and a motion to discharge the defendant was de- 
 nied. 
 
 The sheriff's right to discharge himself in the manner 
 which other bail are entitled to pursue, must be exercised 
 before process against the person of the defendant. It is not 
 provided whether this is before such process issued or exe- 
 cuted. 
 
 In Metcalf vs. Stryker (10 Abbott, 12), it was held, that a 
 sheriff, sued upon his 'liability as bail, under section 201, could 
 
§ 202.] AEEEST AND BAIL. 85 
 
 not avoid or reduce it by showing that the arrested debtor was 
 insolvent, and had no property which was not exempt from 
 execution, and had ever since remained in the same condition. 
 
 Where bail do not justify, the sheriff becomes liable as bail 
 in the action, and his liability is commensurate with that of any 
 other bail. 
 
 An action against the sheriff on his liability as bail, is not an 
 action for neglect of his official duty. The damages are the 
 amount of the judgment. 
 
 In Seaver vs. Gurner (10 Abbott, 256), the sheriff had become 
 fixed as bail by reason of the sureties not justifying. He re- 
 arrested the defendant, and this was held lawful. 
 
 Section 202. 
 
 ^^Proceedings on judgment against sheriff. 
 
 " K 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 proceedings may be had on the offi- 
 cial bond of the sheriff to collect the deficiency, as in other cases 
 of delinquency." 
 
 This is the same as section 177 of 1848, and has remained 
 unaltered since. 
 
 The sheriff becomes bail himself in the particular cases speci- 
 fied in section 201, and it is presumed that section 190 applies to 
 this case ; and the proceeding against the sheriff can only be by 
 action. If this is so, then the old practice of proceeding against 
 the sheriff, by attachment, when bail is not put in and perfected, 
 would seem to be superseded. (See Burrill's Practice, vol. 1, 
 p. 363.) I am not aware of any authority upon the point. 
 
 For the statute as to proceedings on an official bond, see 2 E. 
 S. 476. 
 
86 AEEEST AND BAIL. [§ 203. 
 
 Section 803. 
 
 '■'■Bail liable to slieriff. 
 
 "Tlie 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." 
 
 Section 178 of 1848 was the same as this section, except that 
 the word or, above, italicized, was cmd. In 1849 the word or is 
 found in the section, and so in 1851, and since. 
 
 In re Taylor (7 Howard, 212), Taylor was held to bail in 
 $10,000, and an undertaking, signed by ten persons, was given. 
 The plaintiff's attorney excepted to the sufficiency of the sure- 
 ties. They did not justify. Eight of the sureties procured a 
 certified copy of the undertaking, and endorsed thereon an au- 
 thority to one Muir to arrest the petitioner defendant, for the 
 purpose of surrendering him to the sheriff, which was done. He 
 was brought up on habeas corpus. 
 
 Humphrey, coimty judge, held, that the Code had made bail 
 taken on an arrest to supply the place of bail to the sheriff, and 
 special bail of the Revised Statutes. Section 203 made bail not 
 justifying liable to the sheriff; and section 201 made the sherift' 
 liable to the plaintiff. The sheriff in such case is bail to the par- 
 ty, and the non-justifying sureties bail to him. 
 
 By the Revised Statutes, bail to the sheriff, as well as special, 
 had the power of surrendering their principal ; and the section 
 of the Code conferred the power on the bail, which is made 
 to answer each, according to the exigency of the case. 
 
 As bail to the sheriff, they had a right to surrender. 
 
 He also held that the signatures of eight of the ten, to the au- 
 thority to make the arrest, was sufficient. 
 
§ 204.] AEEEST AND BAIL. 87 
 
 Section 304. 
 
 " Motion to vallate order of arrest, or reduce the hail. 
 
 " A defendant arrested may, at any time before judgment, 
 apply, on motion, to vacate the order of arrest, or to reduce the 
 amount of bail." 
 
 By the amendment made in April, 1862, to the 183d section 
 of the Code, it is provided that 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." 
 
 In 1848, and through all the amendments of the Code until 
 1858, the clause was, at any time hefore the justification of hail 
 he might apply. 
 
 In 1858 the change was made, and the application permit- 
 ted at any time before judgment. 
 
 The various cases interpreting the provision as it stood before 
 1858 were superseded by this amendment, and the rulings and 
 distinctions found in them need not be stated.' 
 
 The language of the court in Stewart vs. Howard (15 Barbour, 
 26), appears to intimate that putting in bail was a waiver of 
 any objection to the sufficiency of the original affidavit. This, 
 however, was not the rule, and I presume the case is not so to be 
 understood. Until justification, or expiration of the time to ex- 
 cept, a motion to vacate could be made upon the defects of the 
 original papers, as fully as upon new ones. (5 Howard, 251 ; 
 4 Abbott, 104; 3 Howard, 265 ; 8 Howard, 353 ; 12 ibid. 197.) 
 
 Motion to vacate order. — The time within which the motion 
 to vacate the order might be made, before 1862, was the same as 
 the time within which such order might be granted under section 
 183, viz., before judgment. The case of The Union Bank vs. 
 Mott (8 Abbott, 150)," stated under that section, was applicable 
 here. Indeed, it arose upon a motion to vacate an order. 
 
 ' Dale m. Radcliff, 15 Howard, 70 ; Cady m. Edwards, 12 ibid. 198 ; Stewart vs. 
 Howard, 16 Barbour, 26 ; Columbia Ids, Co. m. Force, 8 ibid. 153 ; Gassney vs. Bur- 
 ton, 12 ibid. 616; MeKenzie 4i«. H , 2 E. D. Smith, 75; Lewis m. Truesdale, 3 
 
 Sandf. 706. 
 
 ' Ante, page 62. 
 
88 ARREST AND BAIL. [§ 204. 
 
 In Crowell w. Brown (17 Howard, 68), judgment had been 
 entered against the defendant ; and then (as it seems from the 
 statement) a motion was made to discharge the order of arrest. 
 A ca. sa. had been issued upon the judgment. The case seems to 
 have arisen npon a motion to discharge the defendant from im- 
 prisonment under this writ, and the question arose, under sections 
 1T9, 181, whether an execution against the person was justified 
 when an order of arrest had been obtained and remained in force. 
 He could not move to discharge the original order, and hence 
 could not relieve himself from the execution. 
 
 In Koberts w. Carter (9 Abbott, 106, note), the defendant, 
 upon being arrested, gave bail, who justified. After judgment 
 he was arrested on execution against his person. On motion to 
 vacate the order, it was held that such a motion could only be 
 made before judgment, and the application was denied. Crom- 
 well vs. Brown {ibid, note) is to the same effect. 
 
 The amendment of 1862 appears to substitute a new and defi- 
 nite rule for the time of moving, viz., twenty days after service 
 of the order. 
 
 On affidavits. — If the motion is made upon the plaintiff's afii- 
 davits solely, the facts stated therein must be taken as true ; but 
 they may be construed with strictness against him.' 
 
 Where the case made by the complaint varies from that made 
 by the affidavits, and the affidavits were themselves sufficient to 
 sustain an arrest, and on a ground not inconsistent with the alle- 
 gations, an arrest has been sustained. 
 
 Thus, in Stelle vs. Palmer (7 Abbott, 181), it was held, tliat 
 the insertion in the complaint, which was for money received, of 
 allegations showing a fraud in investing such moneys in fictitious 
 and worthless notes, where an arrest had been obtained upon an 
 affidavit to these facts, could not affect the right to an arrest. A 
 motion to correct the complaint might be the proper course. 
 (Eddy vs. Beach, 7 Abbott, 18.) 
 
 In "Wicher vs. Harmon (21 Howard's Pr. Pep. 462), it was 
 decided that no order of arrest should be granted in an action on 
 contract where the allegations of the complaint are inconsistent 
 with material allegations contained in the affidavits upon which 
 the order of arrest was made. 
 
 ' Hathoru vs. Hall, 4 Abbott, 227. 
 
§ 204. J AEEEST AND BAIL. 89 
 
 Upon an appeal to the General Term from an order denying a 
 discharge of an order of arrest, the objection, that the affidavit 
 was on information and belief, will be disregarded, if the princi- 
 pal allegations are not explained or denied. (Union Bank vs. 
 Mott, 17 Howard, 354.) 
 
 Variance between affidavits and complaint. — In Lambert vs. 
 Snow (9 Abbott Eep. 51), it was held, by the General Term of 
 the Common Pleas, that where a defendant had been arrested 
 for money received in a fiduciary capacity, and the complaint 
 subsequently served united a cause of action on contract for 
 which he could not have been arrested, he should be discharged. 
 The order must relate to the whole case presented, not to a part 
 of it. He was discharged. 
 
 In Taylor vs. Wilkinson, 1837 (6 Adol. & Ellis, 533), the 
 defendant had been held to bail on an original writ ; after de- 
 claring, the plaintiff amended his declaration, adding fresh 
 counts. He recovered a verdict on all the counts, with damages 
 assessed severally on each. He then taxed his costs, without 
 severing the costs incident to the ijew counts from the others. 
 The bail was held liable, on demurrer, to an action for the dam- 
 ages given on the counts which corresponded with the cause of ac- 
 tion in the original writ, and for those only ; and as the costs 
 ought to have been separated by the plaintiff, which he had not 
 done, he could not have any against l^ie bail. See the case on 
 the pleadings, 3 Adol. & Ellis, 784. 
 
 Patterson, Justice, put this case : " It is like the case of an 
 original writ issued for causes of action, some of which are bail^ 
 able, some not ; the bail are liable only on the first." 
 
 In Wheelwright vs. Jutling (7 Taunton, 304), on a rule nisi 
 to stay proceedings against bail, it was shown that the affida^tt 
 to hold to bail stated only that the defendant was indebted on a 
 bill of exchange. In the declaration there was added a count for 
 goods sold and delivered. Plaintiff obtained judgment by de- 
 fault. On the writ of inquiry, he recovered for the goods only, 
 which were, in truth, the consideration of the bill, and gave no 
 evidence under the count upon the bill. 
 
 Dallas, Justice : When we look to what is technical, *we 
 find no difference of opinion in the officers or the court ; when 
 we look to the books of practice, the text is positive ; when we 
 
90 AEEEST AND BAIL. [§ 204. 
 
 look to the reason of the thing, it is, that if bail are told there is 
 a debt of £167 due on a bill of exchange, they shall not be liable 
 for goods sold and delivered. The bail ought to know the extent 
 of their responsibility, else it is a fraud on them. 
 
 In Cunliflf vs. Mattass (7 Comm. Bench Eep. 695), a capias 
 was issued upon a judge's order, pursuant to 1 and 2 Victoria 
 110, § 3, indorsed for bail in £1,050. The affidavit stated four 
 distinct causes of action — three of them correctly, and one imper- 
 fectly. The defendant applied to be discharged. The motion 
 was denied, but the bail was reduced by the £500, as to which 
 the cause of action was insufficiently stated. The defect was, in 
 not alleging presentment, dishonor, and notice, of a bill of ex- 
 change. Jones vs. Collins (6 Dowl. Pr. Ca. 526) and The Bank 
 of England vs. Keid (8 Dowl. Pr. Ca. 848) are to the same effect. 
 " The result is, that when the affidavit discloses a good cause of 
 action, the defendants may be held to bail for that, notwithstand- 
 ing the affidavit also states something further which does not 
 amount to a cause of action." 
 
 In Pell vs. Grregg (4 Cowen, 427), the ac etiam was " for speak- 
 ing certain slanderous and actionable words," and the declaration 
 was for maliciously suing out an attachment under the Abseond- 
 ing-debtor Act, upon the false affidavit of the defendant, &c. 
 The court granted a motion to enter an exoneratur. 
 
 In Kobeson vs. Thomp|on (4 Halsted's IT. J. Eep. 97), it was 
 laid down, that where the cause of action set forth in the declara- 
 tion is substantially variant from the cause of action in the affida- 
 vit, the bail must be discharged. 
 
 See, further, Mayfield vs. Davidson, 10 Barn. & Cress. 223 ; 
 Taylor vs. Gregory, 2 Barn. & Adol. 257 ; "Ward vs. Tummon, 
 1 iidol. & Ellis, 619 ; Taylor vs. Wilkinson, 3 Adol. & Ellis, 784 ; 
 and Thompson vs. Maeirone, 4 Dow. and Ey. 619. 
 
 From these authorities I think it may be deduced, that a va- 
 riance between the case made in the affidavit and that in the com- 
 plaint, or on which judgment is obtained, when that variance is sub- 
 stantial and makes a new case, operates to discharge the bail. If 
 there have been amendments made, under the sanction of the 
 coiAt, wliieh do not entirely or substantially change the ground 
 of action, the bail will continue liable. It would seem, also, upon 
 the English cases, that if a cause of action sufficient to justify an 
 
§ 204.J AEEEST AND BAIL. 91 
 
 arrest, is united with another cause of action, the bail would re- 
 main -liable, provided there is a recovery on the former cause. 
 Under our system of pleading, it may be doubted whether, when 
 the plaintiff has several demands which he may or ought to unite 
 in one action under § 167, and on one of them he can have an 
 arrest, the union of the others shall preclude him from it. 
 
 Dealing with prineipal. — ^The relative situation of debtor and 
 bail is that of principal and surety, and the rules of law growing 
 out of that relation are applied to the discharge of bail. 
 
 In Melvill vs. Glendining (7 Taunton, 126), Gibbs, Ch. J., 
 thus stated the rule : The doctrine was first introduced in courts 
 of equity that, if the creditor gives time to the original debtor, 
 the surety is discharged. The courts of law have held, with re- 
 spect to bail, that the bail are entitled to surrender their principal 
 at any time, whenever the plaintiff himself would not be pre- 
 cluded from taking, or proceeding against him. If the creditor 
 give time to the principal, he cannot, during that time, take or 
 proceed against him, neither, during the same period, can the 
 bail ; who are therefore discharged. 
 
 The court, being, satisfied that the bills of exchange taken as 
 securities were not to prevent the plaintiff going on, by express 
 agreement, the bail were held not discharged. 
 
 In Eathbone vs. Warren (10 John. Eep. 597), this principle of 
 the relation of bail was adopted, and the plaintiff, having permit- 
 ted the debtor to go to sea, agreeing not to issue execution against 
 him until after a certain day, for which a sum of money had been 
 paid, — all without the privity of the bail, — the latter was held to 
 be discharged. 
 
 In Willison vs. Whitaker (7 Taunton, 53), the principal had 
 procured a surety to accept bills for the debt, payable at a future 
 day. He had therefore purchased the privilege of freedom from 
 arrest (after judgment) until it should be seen whetlier the bills 
 would be paid or not, Proceedings against the bail were stayed 
 on payment of costs of the motion and of the action. 
 
 In Stevenson vs. Eoche (9 Barn. & Cress. 707), it was ruled, 
 that bail are not discharged by the creditor taking a cognovit 
 from the debtor, unless, by its terms, he is to have a longer time 
 for the payment of the debt and costs, than he would have had if 
 the plaintiff had proceeded regularly in the action. 
 
92 AEEE8T AJ^D BAIL. [§ 205. 
 
 The afQdavit should expressly and fully set forth what is 
 sworn to on knowledge, and what on information and belief. A 
 material variation will entitle the party to a discharge. 
 
 Thus, in Moor vs. Calvert (9 Howard, 4Y5), it appeared that 
 the plaintiff swore to the fraudulent acts as of his personal knowl- 
 edge, and it turned out that the acts and conversations which 
 were alleged to be with a fraudulent intent were made with the 
 clerk of the plaintiff, and communicated to him. The defendant 
 was discharged. 
 
 In Larcom vs. Herzfeld,' the same point was ruled. 
 
 Section 205. ^ 
 
 "Affidavits on motion" 
 
 Motion on defendant's affidavits. — ." If the motion (to discharge 
 the arrest) be made upon affidavits on the part of the defendant, 
 the plaintiff may oppose the same by affidavits or other proofs, in 
 addition to those on which the order of arrest was made." 
 
 Section 180 of the Code of 1848 was the same, and the pro- 
 vision has remained unaltered. 
 
 When the affidavit of the plaintiff is only on information and 
 belief, a positive denial by the defendant of the material state- 
 ments is sufficient to procure his discharge. This was held by 
 Justice Ingraham, in thie case of Rigney vs. Talmadge, Sept., 
 1859, in the case of an attachment. 
 
 Where the arrest had been granted on an affidavit, in general 
 terms, " that the defendant Woodcock is about to dispose of the 
 money, drafts, and property of the firm, with intent to defraud 
 the creditors of the firm," the defendant, on moving to vacate it, 
 made an affidavit of denial equally positive*and equally general. 
 It was held, that the original affidavit was insufficient ; but if this 
 were otherwise, the equally general denial was sufficient to put 
 the plaintiff to state facts and circumstances warranting the court 
 
 ' Special Term Superior Court, May, 1867, Hoffinan, J. 
 
§ 205.] AEEEST AND BAIL. 93 
 
 in finding such a conclusion. This not being done, the order was 
 discharged.' 
 
 The plaintiff is not at liberty, upon a motion thus made, to 
 vary the grounds or cause upon which the order was originally 
 made. His new affidavits must be to sustain that ground, or to 
 displace or affect the counter statements relied on by the de- 
 fendant. 
 
 This was held in Cady vs. Edmonds (12 Howard's Pr. Kep. 
 197) ; and in Henz vs. The Long I. K. K. Co. (13 Barbour, 646), 
 a similar rule was declared in the case of an injunction. 
 
 The mere denial of the cause of action, or the mere denial of 
 the facts on which the arrest was obtained, is not sufficient to 
 discharge an order when the facts are sufficiently stated to sup- 
 port it.' 
 
 Trial of liability on affidavits. — One of the most important ques- 
 tions arising under this section is. How far the court is author- 
 ized to try the liability to arrest upon affidavits ? 
 
 The section, beyond doubt, contemplates such a trial, and ap- 
 parently in every instance. The Court of Appeals, in Corwin vs. 
 Freeland (2 Selden, 564), state that the Legislature has provided 
 this mode of trying the question, and that it is not without its 
 advantages to the defendant. This is said in a case where the 
 arrest had been made in an action to recover the value of goods 
 sold, and the arrest was made on the ground of fraud in making 
 the purchase. 
 
 Yet distinctions are taken, and supported with great author- 
 ity, of importance to be noticed. 
 
 One point may be presented in the language of that eminent 
 jurist, Chief Justice Duer, of the Superior Court. 
 
 In the Kepublic of Mexico vs. Arrangoiz (5 Duer, 634), he 
 says : " It is undoubtedly true that, when an order of arrest is 
 founded upon extrinsic facts, wholly unconnected with the right 
 of the plaintiff to maintain the action, as that the debt sought to 
 be recovered was fraudulently contracted, the burthen of proof 
 rests upon the plaintiff; and, consequently, if the affidavits on 
 the part of the defendant deny positively the imputed fraud, and 
 
 ' Brown vs. Woodcock, Special Term Superior Court, Septemter, 1859, Hoffman, 
 Justice. 
 
 ' Bedell m. Sturta, 6 Abbott Eep. 319, n. ; Chittenden vs. Hubbell, ibid. 
 
91 AKEEST AND BAIL. [§ 205. 
 
 the question whether any was intended or committed, upon the 
 whole evidence, remains in doubt, the defendant will be entitled 
 to his discharge. It will be the duty of the court to determine 
 the question precisely as it ought to be determined were it sub- 
 mitted to a jury." 
 
 " But when the facts relied upon (by the defendant) constitute 
 a defence to the action, that, if admitted or proven, would bar a 
 recovery, it is the defendant who, in relation to these facts, holds 
 the affirmative ; and it is upon him, therefore, that the burthen 
 of proof is necessarily cast ; and hence, if he fail to satisfy the 
 court that the defence relied on wiU certainly be established on 
 the trial, the application for the discharge ought to be denied." 
 
 The first portion of the chief justice's opinion is supported by 
 such a strength of authority as to afford no room to question its 
 undisputed law. The next proposition presents the case (as it is 
 supposed) of a defence of new matter ; for example, a composition 
 or discharge, and an admission, implied at least, of the original 
 cause of action and ground of arrest. 
 
 "We are thus presented with the case of an affirmative new 
 defence to the action ; the defendant must make that out clearly 
 to entitle himself to a discharge, just as the plaintiff must make 
 out clearly his case to entitle himself to retain the order. 
 
 But another question has arisen. This relates to the rule, 
 where the facts constituting the ground of arrest are identical 
 with the facts constituting the ground of action, and where they 
 are distinct. 
 
 A discussion on this subject is found in the careful and able 
 opinion of Justice Marvin in Frost vs. McCarger (14 Howard, 
 131). The case made by the complaint was this : that the defend- 
 ant was agent of the plaintiffs, appointed by them in Wisconsin 
 to deliver certain property to purchasers elsewhere. The prop- 
 erty placed in his hands was delivered to the purchasers, and he 
 received the purchase money. Theii the complaint alleged that 
 the defendant embezzled and fraudulently secreted and made 
 way with the moneys, and converted them to his own use. 
 
 The defendant asserted that he had lost the money ; and, on 
 a motion to vacate an arrest, numerous affidavits were read, on 
 both sides, bearing upon this allegation. 
 
 It was held that the defendant was liable to arrest, on the 
 
§ 205.] ' AEEEST AND BAIL. 95 
 
 ground that the money was received in a fiduciary capacity. It 
 was next stated that the loss of the money, under such circum- 
 stances as would exonerate him from the liability, was matter of 
 defence to the action. 
 
 The learned justice then cites Hernandez vs. Carnobelli, and 
 the Eepublic of Mexico vs. Arrangoiz, and observes that he" 
 cannot agree with the justice who decided those cases, in regard 
 to that class of cases, when the same facts which constitute the 
 cause of action justify the arrest. The opinion proceeds with 
 great clearness to discuss the question. Two passages contain 
 the results of the judge's views : " In any case where the facts 
 justifying the arrest differ from the facts constituting, the cause of 
 action, and are not to be brought before the jury upon the trial, 
 there is an absolute necessity that the court should consider the 
 evidence pro and con, upon a motion to discharge the order of 
 arrest, and decide the disputed question according to the weight 
 of evidence." 
 
 " This necessity does not exist in those cases where the facts 
 constituting the cause of action and authorizing the arrest are the 
 same. The facts will be tried by a jury when the action is tried ; 
 and the verdict, which establishes the cause of action, will, at the 
 same time, show conclusively that it was a case for arrest ; a ver- 
 dict for the defendant will negative the cause of action and the 
 right to imprison." 
 
 It will be noticed that, in this leading case, a cause of arrest — 
 viz., the debt incurred from the mere reception of the money in 
 a fiduciary capacity — was a ground of arrest held good by the 
 judge, independent of the fact of embezzlement or fraudulent 
 conversion. It is presumed that the allegations of this nature in 
 the complaint were not necessarily there. It may well be that 
 their insertion did not prejudice the right to an arrest. And 
 so it was held by one of the justices of the Superior Court ;' but, 
 
 " Hoffinan, Justice, Special Term, October, 1854. Brady vs. Bissell. The com- 
 plaint set forth an employment of the defendant to recover a pension and deliTery of 
 a certificate pension to him, his collection of the money from the Government, and 
 responsibility for the amount. It also set forth that the defendant had, by false 
 representations of the diSiculty and improbability of success, induced him to make 
 an assignment of his claim for a small sum of money. On this an order of arrest was 
 made. The affidavits stated the facts more fully. 
 
96 AEEEST AND BAIL. ' [§ 205. 
 
 certainly, the facts to justify the arrest on the ground of embez- 
 zlement, were entirely extrinsic to the cause of action. 
 
 But was not the fiduciary capacity also an extrinsic fact ? The 
 reception of the money alone gave a cause of action, but did not 
 give a right to arrest. The peculiar character or relation of the 
 party receiving it was necessary for this. 
 
 The rule thus stated by Justice Marvin is repeated in other 
 cases.' 
 
 In Goodrich vs. Dunbar (17 Barbour, 647), where the defend- 
 ant was, under the circumstances, held not to be acting in a 
 fiduciary capacity, and a judgment having been obtained, the 
 original cause of action was considered merged. The court ob- 
 served : " It was said that an action might be brought as for 
 goods sold only, and in the complaint no mention need be made 
 of any fraud in contracting the debt, and yet the defendant might 
 be held to bail for such fraud. That was so, and arises from the 
 difference of language in subdivision 2, from that in subdivision 
 4, of section 179. Subdivision 4 is, that ' the defendant may be 
 arrested who has been guilty of a fraud in contracting the debt, 
 or incurring the obligation, for which the action is brought,' 
 showing that the action is to be for the debt or obligation only, 
 but the arrest for the fraud in contracting that debt or obligation." 
 
 " In subdivision 2, the language clearly restricts the right to 
 arrest to certain kind of actions. It is an action for a fine or 
 penalty, or on a promise to marry, or for money received, or prop- 
 erty embezzled, or fraudulently misapplied by a public officer, 
 &c., or by any factor, agent, broker, &c. The action must be 
 for the fine or penalty, promise to marry, &c., or it does not come 
 within this subdivision." 
 
 This case points out the line of distinction between cases in 
 which there must, of necessity, be an identity between the cause 
 of action and grounds of arrest, and other cases. 
 
 Chapin vs. Seely (13 Howard, 490) was the case of a party 
 arrested, as an agent of the plaintifi", for not paying over money 
 received by him in that capacity. 
 
 ' Gellen vs. Seixas, 4 Abbott, 103, anony. cited; 6 Abbott, 819, note. In the 
 late case of Barrett «s. Gracie, 34 Barbour, 20, Mr. Justice Barnard adopted the rea- 
 soning of Justice Marvin, and held that, where the facts were identical, the defendant 
 must make out a case so plain as to justify a non-suit. 
 
§ 205.] AEEEST AND BAIL. 97 
 
 Hernandez vs. Carnobeli (10 Howard, 449 ; 4 Duer, 644), was 
 an action of assault and battery and false imprisonment. Mr. 
 Justice Hoffman stated his view of the rule thus : " I have before 
 stated the principle upon which I think the court is to act. The 
 inquiry is to be, whether, upon the whole case as presented, a 
 verdict ought to be given by a jury, or a judgment by a judge, 
 for the plaintiff or defendant. If the questions are doubtful, 
 then the plaintiff has not made out his case, and the defendant 
 should be discharged. It is in this particular that I differ from 
 some able judges, who incline to hold that the defendant is to 
 make out clearly that the plaintiff cannot succeed. 
 
 In Barren vs. Sanford (7 Dist. Special Term, June, 1857), be- 
 fore E. D. Smith, Justice (6 Abbott Eep. 320, n.), the ease was 
 for debt, and the arrest was upon the ground of its being fraud- 
 ulently contracted. The learned justices quotes Hernandez vs. 
 Carnobeli (10 Howard, 449), where Justice Hoffman says: "If 
 the question is doubtful then the plaintiff has not made out his 
 case, and the defendant should be discharged ;" and adds : " I 
 cannot see why this is not the true rule, if the whole question is 
 to be considered raised on the motion as res nova; for the party 
 seeking the benefit of bail holds the affirmative and should make 
 out his case. And yet I am not quite satisfied that' it is safe or 
 proper to dispose of these motions on this ground." 
 
 The necessity of carefully ascertaining when a ground of 
 arrest is distinct from the cause of action is apparent. Generally 
 speaking, in actions resulting from contract, they will be distinct. 
 One exception readily occurs : If the price of goods is not due, 
 and the purchaser has been guilty of fraiid in obtaining them, 
 the time of credit is disregarded, and the plaintiff has a right to 
 sue immediately for the price. Tet, in this case, his right to sue 
 before the expiration of the credit, depends upon the fraud, and 
 that must be stated in his complaint, or his action would be pre- 
 mature. It may, then, be urged that there is, under such circum- 
 stances, the identity spoken of Tet even this proposition may 
 be subjected to cavil and doubt. The substantial cause of action 
 is the sale of the goods, and liability for the price. The credit is 
 extraneous. 
 
 If, however, the time of credit has expired, the cause of action 
 and the ground of arrest are separate. 
 7 
 
98 AEEEST AND BAIL. [§ 205. 
 
 It may be suggested, whether the practical and true test is 
 not this. If the statements, essential to support the action (and 
 hence to be made in the complaint), are essential, and all that are 
 essential, to warrant an arrest, — and, conversely, if the statements 
 to warrant the arrest must be in the complaint to support the 
 action, — the identity is established. 
 
 Tested by this rule, the actions for injury to person, or char- 
 acter, for a fine or penalty, and on a promise to marry, are plainly 
 actions in which the identity exists. Actions where the cause of 
 action depends upon a debt, or obligation incurred, which per se 
 gives a right to sue, and the cause of arrest is something connect- 
 ed with that cause of action, but so independent of it that the 
 action could have been sustained without it, are of the other 
 class. 
 
 But, after all, the important question is, whether there is any 
 just ground for the distinction which has been taken, between 
 the different causes of arrest. The case has always appeared to 
 me very strong when thus presented. The imprisonment of a 
 party in a civil action is expressly and by statute prohibited, 
 unless the plaintiff establishes the exceptional cases. No dis- 
 crimination is found resulting from the particular form of action 
 or ground of arrest. Something must be affirmatively made out, 
 sufficient to satisfy the judicial mind, that an exceptional case 
 has been established, before an arrest can be originally ordered. 
 And I am at a loss to understand why this affirmative obligation 
 does not rest upon the plaintiff, through every stage of the action, 
 and in every action of every nature. The Code prescribes, that 
 a man may be arrested when he has committed an assault and 
 battery, and also when he has contracted a debt fraudulently. It 
 has bound the court to say positively, just as much in the one 
 case as in the other, that the act has been done, or the arrest can- 
 not be sustained. The same rule must exist as to continuing, as 
 prevails as to granting an arrest. In each case, the defendant 
 has a right to call upon the court to pronounce, whether the 
 plaintiff has made out his case. The judicial mind must act 
 upon that case as it must do in every other question of difficulty. 
 
 I do not appreciate the objection, that the court thus prema- 
 turely passes upon the case between the parties, and the merits of 
 the action, which may prejudice the trial. The trial will be con- 
 
§ 205.J AEKEST AND BAIL. 99 
 
 ducted on the evidence then produced, sifted, and duly weighed. 
 The case will, we are bound to assume, be decided by what then 
 appears, and by that only. 
 
 It is interesting and important, upon this point, to advert to 
 some decisions in England, under the statute of 1 and 2 Victoria. 
 In Stammey vs. Hughes & Stanley (18 Comra. Bench Rep. 607, 
 1856), the defendants were arrested on an affidavit of debt for 
 work and labor, money laid out, &c. ; that Emma Stanley had 
 accepted an engagement to sing in New York ; that she would 
 sail for that place on or about the 20th of May, and the plaintiff 
 verily believed he would lose the debt, unless the said Emma was 
 forthwith apprehended and held to bail. She deposited with the 
 sheriff the amount of the debt, and £10 costs. 
 
 On a motion that the money be returned, the debt was fully 
 denied in affidavits, stating that the claim was founded on an 
 agreement, which was set forth. It was alleged to have been put 
 an end to. Of this the court was satisfied, and that it was plain 
 there was no cause of action. A rule for the return of the mo- 
 ney was made absolute. Creswell, Justice, said : " The case of 
 Pegler vs. Hyslop is a distinct authority to show, that the court 
 has power to enter into the inquiry. The very words of the 3d 
 section of the 1st and 2d Victoria, ch. 110, show it. I do not see 
 why the defendant should not be permitted upon a motion of 
 this sort, to controvert the existence of the debt." "Williams, 
 Justice, concurred, adding, " At the same time, I have always 
 said, that I would lot take upon myself to try a question which 
 was at all doubtful." 
 
 Pegler vs. Hyslop is to be found in 1 Exch. Eep. 437. Parke, 
 Baron, there said : " I think the words of the statute leave the 
 whole matter at large. Under the statute 12 Geo. I., ch. 29, the 
 plaintiff had' a right to arrest the defendant on one condition 
 only, that he made an affidavit of the cause of action, and that 
 affidavit could not be contradicted. Bulfthe statute 1 and 2 Vic- 
 toria, ch. 110, diffe»6 from that very materially." The 3d and 
 6th sections are then referred to. The judge proceeds: "The 
 whole matter is, therefore, left at large by the wording of the 
 statute, and the defendant is not precluded from disputing, at this 
 stage of the proceedings, either the cause of action or other mat- 
 ters which the plaintiff's affidavits contain. Acting on this view. 
 
100 AEEEST AND BAIL. [§ 205. 
 
 I have relieved parties, where the debt was barred by the stat- 
 ute of limitations. It must, however, be a very clear case, that 
 the plaintiff has no cause of action, or we should not interfere." 
 
 Copeland vs. Child (22 Law J. Eep. Q. B. 279) is a case before 
 decided by Mr. Justice Coleridge, in conflict with this decision. 
 It is cited, and must be treated as overruled, at least in the ex- 
 chequer. 
 
 In the late case of "Warren vs. Wendell (13 Abbott's Kep. 
 187, Nov. 1861) the complaint contained allegations of fraud in 
 contracting the debt. On affidavits an order of arrest had been 
 granted. On the trial of the issues, the judge found that there 
 was no fraud. It was held that this adjudication was decisive 
 upon the question of arrest, and the order was vacated. The 
 judge observed, " The plaintiffs claim that the issue as to the 
 fraud was improperly in the pleadings, citing 13 Howard, 230, 
 20 ibid. 236, both based on 2 Selden, 560 ; but, with all deference 
 to both the opinions in Howard, it M'ould seem that they err in 
 saying that the case in Selden is an authority for the position 
 that such allegations cannot be properly made in the com- 
 plaint." 
 
 Reference. — In Barron I's. Sandford (14 Howard, 443), Justice 
 E,. D. Smith held .that where there was a conflict of affidavits, 
 it was proper to refer the affidavits to a referee, and require 
 the parties to submit to an oral cross-examination, in respect to 
 the facts stated in them, with leave to either party to call and 
 examine other witnesses on the question, -^e made such an 
 order, the referee to report the evidence, and his finding 
 thereon. 
 
 In Stelle vs. Palmer (7 Abbott, 181'), it was stated that the 
 practice was scarcely known in the Superior Court; that the 
 power was pi'obably not to be questioned, but the case ought to 
 be very special, and where the judge could in no way come to a 
 definite conclusion on the facts before him. There was there 
 no point to which affidavits on each side had not been directed, 
 or could have been directed ; there was nothing of surprise or 
 deception. A motion for a reference was denied. 
 
 In Sturm vs. Van Camp and others (Supreme Court, 1st Dis- 
 trict, " November, 1854), it was held that as various questions 
 of fact were left in doubt by the affidavits, there should be a 
 
 ' Superior Court, Special Term, Hoffmnn, J. 
 
§ 205.] AEEEST AND BAIL. 
 
 reference to take proof of the facts ; and the referee^ohld be 
 directed to take no statement on information or belief, unless it 
 be shown whether the information was in writing or not, and 
 if in writing, nnlses the writing be produced ; and if not in writ- 
 ing, then, unless the source of the information be particularly 
 stated, and also, as nearly as practicable, the language in which 
 it was communicated. 
 
 Discharged, if obtained by deceit. — An order of aiTest will be 
 discharged, if the plaintiff has effected it by enticing the defend- 
 ant fraudulently within the bailiwick of the sheriff. 
 
 This was ruled in Goupil vs. Simonson (3 Abbott's E.ep. 474), 
 and in Carpenter vs. Spooner (2 Sandf. Sup. Ct. E.ep. 71 Y). 
 
 In Stein vs. Yalkenhuysen (1 Ellis, Black. & Ellis, 65), a 
 creditor by a concerted plot induced the defendant to come from 
 *Parie to London, where he immediately had him arrested by or- 
 der of a judge. The court, upon affidavits, set aside the whole 
 proceedings as an abuse of its process. 
 
 The power of the court is undoubted, and is frequently exer- 
 cised, to impose a condition upon the defendant that he shall not 
 bring an action for false imprisonment, or damages. (Croden vs. 
 Drew, 3 Duer, 655 ; Northern E. R. Co. vs. Carpentier, 4 Ab- 
 bott, 47.) 
 
 Arrest on execution. 
 
 Section 288 of the Code provides, that " if the action be one, 
 in which the defendant might have been arrested as provided in 
 sections 179 and 181, an execution against the person of the 
 judgment debtor may be issued to any county within the juris- 
 diction of the court, after the return of an execution against his 
 property unsatisfied in whole or in part." 
 
 This section has been the subject of a number of conflicting 
 decisions. Many of them are referred to in a note to Barker vs. 
 Eussell, 11 Barbour, 384.' See also Alden vs. Savron, 4 Abbott, 
 102 ; Cfowell vs. Brown, 17 Howard, 68 ; Humphreys vs. Brown, 
 ibid. 481 ; Ginochio vs. Figari, 4 E. D. Smith, 227 ; Fake vs. Edg- 
 erton, 3 Abbott, 230, and 5 Duer, 681. 
 
 ' Gridley vs. McCumber, 5 Howard, 414; Cheney vs. Garbutt, ibid. 407 ; Corwin 
 vs. Freeland, 6 ibid. 241 ; Squire vs. Flynn, 8 ibid. 169 ; Masten vs. Scovell, 6 ibid. 
 315. 
 
102 AEEEST AND BAIL. [§ 205. 
 
 The subject was carefully examined, by Chief Justice Bos- 
 worth, of the Superior Court of ISTew York, in Hardenburgh vs. 
 Morgan (18 Howard's Eep. 469), and his conclusions were ap- 
 proved, upon consultation, by all his brethren. 
 
 There were two motions before the Chief Justice. In the 
 first, the plaintiff moved expa/rte after judgment on contract, for 
 leave to issue an execution against the person , on affidavits of the 
 debt having been contr0,ctod fraudulently. No previous order of 
 arrest had been obtained. It was not shown that the defendant 
 had appeared in the action. The motion was denied. The es- 
 tablished practice of a party issuing such execution as he was 
 entitled to, and issuing it at his peril, was referred to. (G-raham's 
 Practice, 350-356.) It was not the province of the court to ad- 
 vise the party. As a provisional remedy, the court had of course 
 lost the power to make an order of arrest. 
 
 Subsequently the plaintiff issued an execution, and had the 
 defendant arrested. A motion was made to set this aside, and 
 discharge the defendant. 
 
 It was held that in an action on a contract, an execution can- 
 not be issued upon a judgment recovered therein, against the 
 person of the defendant, unless an order of arrest had been made 
 before judgment was recovered. 
 
 That where the cause of action j?er se gives the right to arrest 
 or imprison, although the question of such liability may be pro- 
 visionally determined before judgment, yet it is to be absolutely 
 determined by the judgment itself. The existence of the right 
 to hold to bail is determined by the record itself, and in such 
 cases, a ca. sa. may be issued, though no order of arrest had been 
 obtained. 
 
 If the right to hold to bail, is wholly independent of the 
 cause of action, then, whether the party could have been ar- 
 rested must be determined befoi-e judgment, by an order of ar- 
 rest not vacated. 
 
 The execution was dischai-ged. 
 
 There is one point adverted to in the opinion of Justice Hoge- 
 boom, in Humphrey vs. Brown (17 Howard, 481), not covered 
 by the decision of the Superior Court. "Where the complaint 
 does (unnecessarily) contain allegations of the facts which would 
 justify an awest, and they are extrinsic, and the defendant allows 
 
§ 205.] AEEEST AUB BAIL. 103 
 
 judgment to go by default, is there such an admission of the 
 fraud as to justify an execution against the person, there having 
 been no order of arrest? The learned judge inclines to think it 
 could not be done. But if it could be, the defendant should be 
 let in to vacate the execution, upon affidavits. 
 
 Amendment of 1862, — By an amendment of this section 288, 
 made April, 1862, the following clause is added : " But no execu- 
 tion 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 time of service prescribed by the amendment of section 
 183, is before the docketing of any judgment against the defend- 
 ant. And thus, it seems, execution against person can only 
 issue — ^first, where an order of arrest is obtained before a judg- 
 ment is docketed ; or, second, when the complaint states a cause 
 of arrest under section 179. 
 
 If the complaint does contain such a statement, though no 
 order has been obtained, it is presumed, the execution may be 
 issued at the peril of the plaintiff. I am not aware of any de- 
 cision yet made interpreting the amendment. 
 
CHAPTEK II. 
 
 CLAIM AND PELIVERY OF PERSONAL PROPERTY. 
 
 Section 206. 
 
 '■'■Delivery of personal property when it may he claimed. 
 
 " The plaintiff, in an action to recover the possession of per- 
 sonal property, may, at the time of issuing the summons, or at 
 any time before answer, claim the immediate delivery of such 
 property, as provided in this chapter." 
 
 The provision in the Code of 1848 was the same as the pres- 
 ent, except that the clause as to the time was, " at the time of 
 commencing the action." It formed the 181st section. In 1849, 
 it was amended as above, and numbered the 206th section, and 
 has remained since unaltered. 
 
 Substitute for replevin, — The provisions of this chapter are 
 declared to be in substitution of the former action of replevin.' 
 A brief view of the principles and nature of that action will be 
 found useful. 
 
 It was the remedy which the law of England allowed for the 
 wrongful taking of goods. The position that it only lay for an 
 unlawful distress has been shown to be inaccurate." The object 
 of the action was to obtain restitution of the goods, and damages 
 for the unlawful taking. " It may be defined to be a process to 
 
 ' Roberts vs. Randall, 3 Sandf. Supr. Court Rep. '?87; Rockwell vs. Skinner, 19 
 Barbour, 481. ' 
 
 ^ Chitly on Pleadings, 1 62 ; Shannon vs. Shannon, 1 Sch. & Sefr. 32T ; Rogers 
 & Arnold, 12 Wendell, 32. 
 
§ 206.] CLAIM AND DELIVEEY. 105 
 
 regain the possession of goods which have been unlawfully dis- 
 trained or taken.'" 
 
 But the most usual office of the writ in former periods was in 
 cases of distress for rent. When a party distrained upon would 
 dispute the legality of the distress, he had no other process by 
 the common law than the writ replegiare facias, issuing out of 
 the writ office of chancery." It was termed a writ to take hack the 
 pledge, the party taking them holding the goods until the question 
 of right was settled, in the nature of a pledge.^ The statute of 
 "Westminster, 3 cap. 21, called the statute of Marlbridge, directed 
 that the sheriff should proceed without writ to replevy the goods ; 
 and under the statute of Westminster 2d (13 Ed. I., cap. 13) the 
 party replevying was to put in pledges to prosecute his action, 
 and also pledges de retorno, that if the right was determined 
 against him he would return the distress. The statute 2 Geo. 
 II., cap. 19, consolidated these provisions and enacted some 
 others. 
 
 The sheriff, on receiving the security directed, was to cause 
 the chattels taken in distress to be returned into the possession of 
 the party distrained upon, unless the distrainor claimed a prop- 
 erty in them. If he had thus obtained possession of his own 
 goods, the party replevying was driven to the writ de proprietate 
 prdba/nda, in which the sheriff was to try, by an inquest, in whom 
 the right of property existed prior to the distress. If the prop- 
 erty was found to be in the distrainor, the sheriff could proceed 
 no further, but returned the claim of property to the Court of 
 King's Bench or Common Pleas to be there prosecuted and de- 
 termined. 
 
 If no claim of property was put in, or if, upon trial, the sher- 
 iff's inquest determined against the distrainor, then the sheriff 
 was to replevy the goods. They were delivered back to the 
 party replevying, who was then bound to bring his action of 
 replevy. The distrainor thus became the defendant in the suit, 
 and made the avowry, setting up his right to the goods dis- 
 trained." It is needless to advert to the other pleadings and 
 
 ' Swift's Digest, voL 1, page B32. 
 
 ' Fitzherbert Nat. Brev. 68 ; Wilkinson on Replevin, p. 6. 
 
 = Ibid. p. 1. 
 
 * 3 Black. Comm. 148 ; Wilkinson on Replevin, pauim. 
 
106 CLAIM AND DELIVEET. [§ 206. 
 
 proceedings under the old English system. The statute of George 
 II. was in terms confined to replevin, where there was a distress 
 for rent. 
 
 The provisions of the ancient English statutes, with those of 
 later date, were adopted nearly in the same language in our stat- 
 ute of the 6th of February, 1T88. (1 Revised Laws, 1813, p. 91.) 
 
 The Eevised Statutes of 1830 (vol. 2, p. 522) adopted a com- 
 prehensive system of regulations. The first section was, that 
 whenever goods or chattels shall have been wrongfully distrained, 
 or otherwise wrongfully taken, or shall be wrongfully detained, 
 an action of replevin may be brought for the recovery thereof, 
 and for recovery of the damages sustained by reason of such 
 unjust caption or detention, except in the cases thereinafter spe- 
 cified. The excepted cases are those of a seizure for taxes, &c., or 
 under an execution, as provided in section 5. 
 
 As the rule is laid down, that the former regulations as to the 
 writ of replevin are to govern, where the Code is not explicit, 
 various of the provisions of the Eevised Statutes are adverted to, 
 as well for illustration as in cases omitted in the Code." 
 
 Object of the action. — ^The present section of the Code author- 
 izes this provisional remedy only, when the action is one for the 
 recovery of personal property. It contemplates that this recovery 
 is the' object of the suit, not damages for the taking or detention ; 
 though, by force of other sections of the Code, a judgment for the 
 value may, under certain circumstances, be had. What deter- 
 mines the character of the action, and hence the right to this 
 remedy, is chiefly the judgment prayed for. 
 
 Mr. Justice Sill, in Spalding vs. Spalding (3 Howard's Pr. 
 Kep. 297), says : " The Code classifies actions. Actions for inju- 
 ries by force, to property, are put in the second class ; and claims 
 to recover the possession of personal property are put in the 
 sixth class.' These actions are what were formerly known by the 
 respective names of trespass and replevin. Trespass de bonis 
 asportatis and replevin, under the present, as well as the former, 
 practice, are concurrent actions — the same state of facts sustain- 
 
 ' Wilaon vs. Wheeler, 1 Code Rep. N. S. 402 ; Brackway vs. Burnah, 1 6 Barbour, 
 309-3U. 
 
 ' This was under section 143 of the Code of 1848. The classification is now sub- 
 divisions 3 and 6 of section 167. 
 
§ 206. J CLAIM AND DELIVEEY. 107 
 
 ing tlie action in either form. In this case, the statement of facts 
 in the complaint is adapted to a suit in either class ; and it is the 
 judgment asked for that determines to which it belongs." The 
 complaint prayed for damages for property taken, not for its re- 
 turn. 
 
 So, in Savage vs. Perkins (11 Howard's Pr. Eep. IT), the 
 court declares, that this action can be brought in the cases where 
 replevin would lie under the Eevised Statutes. Such an action 
 was based upon a wrongful detention of the property, which must 
 exist at the commencement of the action. The object of the ac- 
 tions of trespass and trover, before the Code, was, and of the cor- 
 responding actions, since the Code, is, the recovery of pecuniary 
 damages, and not of property in specie. 
 
 It is true that, in actions of the latter class, damages are re- 
 covered for the wrongful detention, but such damages are merely 
 incidental to the action. 
 
 In Fitzhugh vs. "Wiman (5 Selden 559), and Dwight vs. Enos 
 (ibid. ilO), the 277th and 289th sections of the Code were ex- 
 amined and explained ; and it was decided, in the first case, that 
 in an action to recover possession of personal property, when the 
 property has not been delivered to the plaintiffs prior to the trial, 
 the plaintiffs recovering have not a right to elect to take judg- 
 ment for the value of the property, but are entitled only to a judg- 
 ment in the alternative, that they recover possession of the prop- 
 erty, or the value thereof, in case a delivery cannot be had, 
 together with damages for the detention thereof. And in the 
 latter case it was held, that where the defendant succeeded in the 
 action, and the property had been delivered to the plaintiff, the 
 judgment must also be for the return of the property, and for the 
 value as assessed, only in case a return cannot be had. The elec- 
 tion given in the Kevised Statutes, to take a judgment for either 
 a return, or for the value, did not exist under the Code. 
 
 In Seymour vs. Vanburen (13 Howard, 94), the rule in Spald- 
 ing vs. Spalding was recognized. The complaint alleged a cause 
 of action by reason of an unlawful taking a horse and convert- 
 ing it to the defendant's use, and asked judgment for $1,500 as 
 damages. It was held, on a motion to set aside the proceedings, 
 that the requisition to the sheriff to take and deliver the horse 
 was wholly unwarranted. The nature of the action was deter- 
 
108 CLAIM AND DELIVEEY. [§ 206. 
 
 mined by the complaint, and it was for damages, not for the spe- 
 cific p^-operty. 
 
 What property. — The section covers all personal property. By 
 section 463, personal property includes money, goods, chattels, 
 things in action, and evidences of debt. 
 
 It has been held, in England, that growing crops may be con- 
 sidered in the nature of goods and chattels, being distrainable 
 under 11 Geo. II., cap 19.' 
 
 Replevin could not be sustained for taking and removing 
 things affixed to the freehold, though wrongfully separated there- 
 from by the defendant. 
 
 In Niblet vs. Smith (4 T. Eep. 504), this general rule was 
 recognized in relation to things which might be distrained ; and 
 replevin was at first used to try the legality of a distress. 
 
 In Cressen vs. Stout (17 John. Eep. 116), it was held, that 
 though replevin would not lie for things fixed to the freehold, yet 
 if, after the sheriff had levied on them, they are severed, they 
 become personal property, and might be replevied. 
 
 A warehouse entry, if evidence of the title of its possessor to 
 the goods which it describes, is as properly the subject of an ac- 
 tion for its delivery as a certificate of stock or bill of exchange. 
 
 This was so held in Knehue vs. Williams (1 Duer, 598), where 
 a document' entitled a warehouse entry, purporting to be an en- 
 try at the custom-house of certain merchandise imported by the 
 plaintiffs, but not signed by any officer of the customs, was the 
 subject of the action. 
 
 It did not appear on its face to be of any value ; yet it was 
 sworn to be so in the affidavit, and it might turn out, in connec- 
 tion with evidence given on the trial, to be of value. It was set- 
 tled, that a bill of exchange, bill of lading, and certificate of stock 
 might be replevied ; and between them and an entry, which is a 
 transferable evidence of title, no tangible distinction could be 
 stated. 
 
 Under some circumstances, replevin will lie for property im- 
 properly confounded with property of the other party, and the 
 whole will be taken. 
 
 The true principle is perhaps accurately stated in Wingate vs. 
 Smith (20 Maine Rep. 287) : " The mere taking by one man of 
 
 ' 1 Moore's Rep. 231 ; Glover vs. Coles, 1 Bingham, 6. 
 
§ 206.] CLAIM AND DELIVEEY. • 109 
 
 the mill-logs of another, and mixing them with his own, will not 
 constitute confusion of goods ; but if he fraudulently take the logs 
 and manufacture them into boards, and intermixes these boards 
 with a pile of his own, so that they cannot be distinguished, and 
 with a fraudulent intent, the owner may maintain replevin for 
 the whole pile of boards." 
 
 This subject of the confusion of goods was entered into fully 
 in the cases of Willard vs. Eice, 11 Metcalf, 493 ; Eyder vs. Hath- 
 away, 21 Pickering, 248 ; Snyder vs. Vaux, 2 Eawle Penn. Eep. 
 423 ; Silsbury vs. McCoon, 3 Comstock Eep. 379 ; Wilson vs. Na- 
 son, 4 Bosworth, 155, Superior Court, General Term. 
 
 Time for allowing the remedy. — The plaintiff may have this 
 provisional remedy at the time of issuing the summons, or at any 
 subsequent time before answer. 
 
 The phrase, at the time of issuing the summons., is also used, 
 in the 227th section, as to an attachment. The question of its 
 meaning is discussed under that section. It is presumed to be 
 the preparation of the summons under sections 128 and 129, 
 and its delivery to some one, to have it served, under section 133. 
 The delivery of the summons and requisition to the sheriff may 
 be contemporaneous acts. 
 
 If, before action brought, the defendant offer unconditionally 
 to restore the property, the proceedings will be stayed. 
 
 In Savage vs. Perkins (11 Howard, 17), Justice Bowen said : 
 " The object of this action is the recovery of the property in spe- 
 cie ; and if, before suit brought, the defendant offer uncondition- 
 ally to restore it, the object is already attained, and the suit is 
 wholly unnecessary. Such offer is equivalent to a tender before 
 suit. The plaintiff could still have recovered the damages sus- 
 tained, if any, by reason of the refusal to deliver it when de- 
 manded, by an action corresponding with the former action of 
 trover, or, as denominated by the Code (§ 167), an action for in- 
 juiy to property." 
 
110 . CLAIM AND DELIVERY. [§ 207. 
 
 Section 207. 
 
 " Affidavit, cmd its requisites. 
 
 " "Where a delivery is claimed, an affidavit must be made by 
 the plaintiff, or by some one in his behalf, showing — 
 
 " Ist. That the plaintiff is the owner of the property claimed 
 (particularly describing it), or is lawfully entitled to the posses- 
 sion thereof by virtue of a special property therein, the facts in 
 respect to which shall be set forth ; 
 
 " 2d. That the property is wrongfully detained by the defend- 
 ant ; 
 
 " 3d. The alleged cause of the detention thereof, according to 
 his best knowledge, information, and belief ; 
 
 " 4th. That' the same has not been taken for a tax, assessment, 
 or fine, pursuant to statute ; or seized under an execution or 
 attachment against the property of the plaintiff; or if so seized, 
 that it is by statute exempt from such seizure ; and — 
 
 " 5th. The actual value of the property." 
 
 The Code of 1848 was, in all respects, the same. 
 
 Ownership to be stated. — If the affidavit states explicitly and 
 positively that the plaintiff is the owner of the property, it will 
 be sufficient, without stating the title or facts proving ownership. 
 
 Thus, in Yanderbergh vs. Yankelbergh (8 Barbour, 217), it 
 was held that a declaration in replevin must allege that the prop- 
 erty was the property of the plaintiff; an allegation that the 
 plaintiff was entitled to the possession thereof, was insufficient. 
 
 In analogy to this rule, it was decided, in Burns vs. Eobins (1 
 Code Hep. 62), that the averment of ownership in the affidavit 
 must be express ; but if express of absolute ownership, it would 
 be enough. 
 
 But, where the plaintiff swore that he was entitled, as against 
 his copartner, to the exclusive possession of the property claimed, 
 by virtue of the articles of copartnership, it was held that the 
 affidavit was not sufficient. Hoffman, Justice, said : " The facts 
 should be shown, so as to enable the court to say that upon them, 
 and on the best apparent evidence of them, a special property 
 
§ 207.] CLAIM AND DELIVEEY. Ill 
 
 and right of possession are made out. If the evidence consists in 
 a writing, that must be set forth. 'Ho statement of its contents or 
 import will suffice. (Depew vs. Leal, Superior Court, Gen. Term, 
 2 Abbott, 136.) 
 
 The difference between these decisions arises from the varied 
 phraseology of the Code. The facts are only to be set forth when 
 the claim is made on the basis of a special property in the goods. 
 
 The Kevised Statutes of 1830 prescribed that the affidavit 
 should set forth an ownership, or that the claimant was then law- 
 fully entitled to the possession of the goods. The clause, ly virtue 
 of a special property therein, was not in the statute. 
 
 In McCurdy vs. Brown (1 Duer, 101), the court recognized 
 the view that the action for the recovery of personal property was 
 substantially the old action of replevin. The plaintiff must show 
 a legal title — an absolute or a special property — giving him an 
 immediate right to the possession. It was held that a person who 
 advanced money on the faith that the proceeds of goods remain- 
 ing in the possession of the owner should be applied to his re- 
 imbursement, though he obtained an equitable interest, had not 
 such a legal title to the possession of the goods as entitled him to 
 sustain this action under the Code. 
 
 In Fitzhugh vs. Wiman (5 Selden, 559), forwarding merchants 
 had made advances for charges on goods consigned to them, to 
 be transported and delivered to ultimate consignees or owners. 
 The former were held to have such an interest as entitled them to 
 sustain this action against a third person, to whom the goods had 
 been wrongfully delivered by the carrier. The delivery to the 
 carrier, under a special consignment to the forwarders, was a vir- 
 tual delivery to the latter. 
 
 In Powell vs. Bradlee (9 Gill. & John. 220), it was held that 
 a party to whom property is to be delivered by the terms of a bill 
 of lading, could sustain replevin. 
 
 In Galloway vs. Bird (4 Bingham, 299), the action was for 
 taking and unjustly detaining the plaintiff's goods. Avowry 
 that the defendants were carriers and lightermen ; that one Baehe 
 was the consignor, and the plaintiff the consignee, of the goods, 
 which were delivered to the defendants, and came to their hands 
 as such carriers, to be carried to the plaintiff, for reward, payable 
 
112 CLAIM AND DELIVEET. , [§ 207. 
 
 by tlie said Bache ; tliat the defendants detained the goods by 
 virtue of a lien for a balance of account due them by Bache. 
 
 Best, Ch. Justice : " The goods which were replevied had been 
 delivered to the avowants upon a contract. The authorities all 
 lay it down that replevin can only be maintained where goods 
 are taken, not where they are delivered upon a contract ; and this 
 is clear, also, upon the form of pleading, which is, that the defend- 
 ant took and detained the goods ; the plea to which allegation is 
 non cepit. No instance can be found in the Digests or Abridge- 
 ments of replevin having been brought upon a delivery under a 
 contract." 
 
 The sufScient statement of an absolute ownership dispenses 
 with the necessity of stating any thing as to possession, or a right 
 to the possession ; because it is a rule of law, that the general 
 property of personal chattels creates a constructive possession.' 
 
 Description of property. — The property is to be particularly 
 described in the affidavit. The same was the rule under the writ 
 of the former practice. 
 
 Where the writ was to deliver to the plaintiff about 400 tons 
 of bog ore, it was held that the sheriff would have been justified 
 in refusing to execute the writ thus vaguely describing the prop- 
 erty." 
 
 In Pope vs. Talman (7 Taunton, 642), it was decided that a 
 declaration in replevin for taking divers goods and chattels of the 
 plaintiff was bad for uncertainty. 
 
 The place of taking should be also stated with particularity. 
 
 In Potter vs. Bradley (2 Moore & Payne, 78), the declaration 
 alleged that the defendant, in the parish of A, in the county of 
 Kent, in a certain close there, took the plaintiff's cattle ; held, 
 that the close should have been described by name, or by abut- 
 tals when it had no name, or as being in the occupation of A. B. 
 This was on demurrer. 
 
 An insufficient description of the goods taken, or of the locus 
 in quo, is cured by the defendants avowing or making cognizance, 
 now by his answer." 
 
 ■ Smith vs. James, 7 Cowen, 321 ; Duncan vs. Shear, 11 Wendell, 54. 
 = De Witt vs. Morris, 13 Wendell, 496. 
 » Banks vs. Angell, 1 Adol. & Ellis, 843. 
 
§ 207.] CLAIM AND DELIVEKY. 113 
 
 Under the statute " Of the action of Eeplevin" (5 R. S. 623, 
 § 36), the declaration was to contain allegations with requisite 
 certainty of time, place, and value. But, by section 37, it was 
 not necessary to state a place certain within the town or village 
 as that where the property was taken, except in the case of goods 
 distrained. 
 
 Averment of wrongful detention. — The allegation that the prop- 
 erty is wrongfully detained by the defendant is essential, and 
 must be explicit. It seems that if the allegation is positive it 
 may be in the general language of the section. 
 
 The action itself, to recover possession of personal property, 
 clearly embraces what was before replevin in the cepit^ replevin 
 in the detinet, and both. The Revised Statutes allowed the action 
 for either the tortious taking, or the tortious detention. Justice 
 Harris, in his elaborate opinion in Brockway vs. Burnap (16 Bar- 
 bour, 309), says : " It is clear to my mind, that replevin, as ex- 
 tended by the Revised Statutes, did, as a general rule, perhaps 
 not invariably, extend to those cases in which replevin, detinue, 
 trespass, or trover, was the remedy at common law." 
 
 But even if the action under the 206th section of the Code 
 may be sustained upon the allegation merely of ownership, or 
 special property, and of an unlawful taking, it is clear that the 
 requisition to the sheriff which will warrant the delivery to the 
 plaintiff of the property, to hold during the suit, can only be had 
 when the detention is wrongful. 
 
 Possession by defendant. — It has been held in some cases, that 
 it is essential to support the action, that the defendant should 
 have possession of the property, or control over it in fact or in 
 law. 
 
 Thus, in Roberts vs. Randall (3 Sandf. Supr. Ct. Rep. 707), it 
 was decided, that before the Revised Statutes the action of re- 
 plevin was purely possessory, and could not be maintained against 
 a party who had divested himself of the goods claimed, except 
 where a distrainor for rent proceeded fraudulently, or in violation 
 of the statute regulating distresses ; that under such statutes 
 replevin would not be sustained against a party who had neither 
 possession nor control of the chattels claimed, and had not parted 
 with them in fraud of the action ; and that the action under the 
 
114: CLAIM AND DELIVEET. [§ 207. 
 
 Code was a substitute for replevin, and governed by the same 
 rules. 
 
 A similar view was taken in Elwood vs. Smith. (9 Howard, 
 528.) 
 
 And in Eeimer ■ys. Nagle (1 E. D. Smith, 256), the court say : 
 " The object of the action, the characteristic which distinguishes 
 it from an action for damages, is this, that it restores the goods to 
 the possession of the party entitled. I can never believe that the 
 Legislature intended to apply it to a case where the restoration 
 was confessedly impossible. The Legislature meant to apply it 
 to a case of actual detention by the defendant, and not to a fic- 
 titious or constructive one." 
 
 But, in Brockway vs. Burnap (16 Barbour, 313), it was held 
 that an action to recover possession of personal property would 
 lie, notwithstanding the defendant had parted with the possession 
 before the suit was commenced. It was considered that such was 
 the rule under the Revised Statutes. The defendant might have 
 been arrested, if the sheriff could not make delivery of the 
 property, and yet the action proceeded for the property or the 
 value. Replevin would always lie for goods unlawfully taken. 
 Wherever trespass would lie, the injured party inight sustain re- 
 plevin. There was nothing in the Code that prevented the pres- 
 ent remedy by an action to recover personal property being as 
 full, general, and complete, as that action was under the Revised 
 Statutes. 
 
 Drake vs. Wakefield (11 Howard Pr. Rep. 106), Savage vs. 
 Perkins (ibid. 17), and Yan Neste rs. Conover (20 Barbour, 547), 
 are to the same effect. 
 
 Cause of detention to be stated.— So far as the plaintiff pos- 
 sesses any knowledge of the grounds upon which the defendant 
 claims to detain the goods, he must set it forth in the affidavit. 
 
 The affidavit must also show that the property has not been 
 taken for tax, assessment, or fine, pursuant to a statute. 
 
 The provision of the Revised Statutes was, " No replevin 
 shall lie 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." (2 R. S. 522, § 4.) 
 
 It was held, under this provision, that an action would not 
 lie, where a warrant for the collection of a military fine appeared 
 
§ 207.] CLAIM AND DELIVERY. 115 
 
 on its face to give authority to the oiBcer, although it may have 
 issued erroneously or irregularly. (The People vs. The Albany 
 Com. Pleas, Y Wendell, 485.) 
 
 It was held, under a similar statute in New Hampshire, that 
 when the defendant avowed the taking as collector of taxes, 
 under several warrants, some of which were legal and others ille- 
 gal, his avowry was in the nature of a declaration, and entitled 
 him to judgment for a return. (Brachett vs. Whidden, 3 N. H. 
 Kep. 17.) 
 
 The affidavit must also state that the property has not been 
 seized under an execution or attachment, against the property of 
 the plaintiff; or if so seized, that it is by statute exempt from 
 such seizure. 
 
 Chattels in the custody of the law cannot at common law he 
 replevied ; goods taken in execution, and, by parity of reason- 
 ing, goods attached by original writ, as security for the judgment, 
 cannot be replevied.' 
 
 In Mills vs. Martin (19 John. Kep. 31), Spencer, Chief Justice, 
 said : " It is objected, that it has been decided in this court, that 
 replevin will not lie for goods taken by an officer on a writ of 
 execution, whilst in the possession of the person against whom 
 the execution has issued. This has been so decided in Thompson 
 vs. Britton (14 Johns. Eep. 86), and Gardner vs. Campbell (15 
 Johns. Pep. 401); and I think those cases were decided in conso- 
 nance with sound principles. If it had appeared that the execu- 
 tions were issued upon judgments illegal and void, most certainly 
 the conclusion would have been different." 
 
 But this rule appears to have applied only to the case of an 
 action by the defendant in the execution. A stranger might have 
 replevied goods so taken." 
 
 By the Eevised Statutes (2 P. S. 522, § 5), no replevin would 
 lie at the suit of the defendant in any execution or attachment to 
 recover goods or chattels seized by virtue thereof, unless such 
 goods and chattels are exempted 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 possession the goods taken." 
 
 ' Per Shaw, Ch. J., in Isley vs. Stubba, 6 Mass. 280. 
 
 * Clark vs. Skinner, 20 John. Eep. 46Y. See 3 Wendell, 280. 
 
 ' Fairfield, 61 ; 9 Cowen, 259. 
 
116 CLAIM JOSX) DELIYEEY. [§ 207. 
 
 The revisers proposed a section which went far to abolish any- 
 right in a third person to bring replevin for goods seized. They 
 say, " The provisions by which the owner of any property seized 
 in execution, may have his right tried by the sheriff and a jury, 
 seem sufficient for his protection, without resorting to the action 
 of replevin." 
 
 This would appear to be the design of the Code in the adop- 
 tion of section 216. See that section, post, and the cases under it. 
 
 In Spalding vs. Spalding (3 Howard Pr. Rep. 297), it was held 
 by Sill, Justice, when the property of the plaintiff was taken un- 
 der an execution against him, that an affidavit stating generally 
 that the property was exempt from execution, was not sufficient. 
 The facts showing such exemption should be stated. 
 
 In Roberts vs. "Willard (1 Code Reporter, 100), the court said, 
 that the allegation of the property being exempt from execution, 
 will be sufficient in general language, if positively made, but not 
 if made on belief, without stating the advice of counsel, on a fuU 
 presentation of the facts. 
 
 Actual value to be stated. — The actual value of the property 
 must be stated in the affidavit. 
 
 The declaration, under the Revised Statutes, was to set out 
 the value with requisite certainty (2 R. S. 628, § 10) ; the bond, 
 the pre-requisite for the execution of the writ, was to be in double 
 the value of the property specified in the writ, which value shall 
 be ascertained by the oath of one or more disinterested witnesses, 
 to be sworn and examined by the sheriff. (Ibid. 523, § 7.) 
 
 Amending affidavit, &c. — The court, on a motion to set aside the 
 proceedings, may give the plaintiff leave to amend his affidavit, 
 or furnish new affidavits. 
 
 This point has been decided differently in some cases, but the 
 weight of authority seems to be in favor of the proposition. 
 
 In Depew vs. Leal (Gen. Term Supr. Ct., 2 Abbott, 131), the 
 court say : " We have examined the cases referred to upon the 
 right of the court to allow an amendment of, or an addition to, 
 the affidavit in such a case. (Spalding vs. Spalding, 3 Howard 
 Pr. Rep. 297 ; Stacy vs. Farnham, 2 ibid. 26 ; Cutter vs. Rath- 
 bone, 1 Hill, 204 ; Hamsley vs. Bates, 19 Wendell, 632.) We are 
 satisfied that the court has such a power, and also that the pro- 
 posed additional affidavit may be used in opposing the motion to 
 
§ 208.] CLAIM AND DELIVEET. 117 
 
 set aside tlie proceedings. (Chickman vs. Chickman, 3 Howard, 
 365.) This power may be properly exercised in a case where 
 what is to be supplied is an instrument referred to in the original 
 affidavit, and matter merely explanatory of the facts therein 
 stated, introducing no new substantive matter." 
 
 Section 208. 
 
 "Requisition to take and deliver the property. 
 
 " 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." 
 
 This section has not been changed since the enactment in 1848. 
 
 This written requisition is the substitute for the writ directed 
 to the sheriff, the form of which was given in the Revised Stat- 
 utes of 1830. (2 E. S. 523, § 6.) The sheriff was commanded 
 "that if the said A. B. shall give you security as required by law, 
 to prosecute his said complaint, and to return the aforesaid goods 
 and chattels, if return thereof shall be adjudged, and to.pay all 
 such sums of money as may be recovered against him hereupon ; 
 that you cause the same goods and chattels to be replevied and 
 delivered to the said A. B. without delay ; and also that you 
 summon the said C. D. to appear before our justices at, &c. And 
 in case you cannot find the aforesaid goods and chattels within 
 your county, so as to replevy the same, as you are above com- 
 manded, then we further command you, that you take the body 
 of the said C. D., and that you have him before our said parties 
 at the place and on the day before mentioned, to answer the said 
 A. B. in the premises." 
 
 This last clause of the writ was warranted by the eleventh sec- 
 tion of the statute, which provided that " if the property described 
 in the writ has been removed or concealed, so that the sheriff 
 cannot make delivery thereof, he shall arrest the body of the de- 
 fendant and keep him in his custody, in the same manner as on a 
 
118 CLAIM AND DELIVEET. [§ 209. 
 
 capias ad respondend/um in a personal action, until he shall exe- 
 cute a bond as prescribed in the next section, or be otherwise 
 legally discharged." 
 
 It has been decided that a plaintiff cannot have a delivery of 
 the property under the provisions of the Code, where he has ar- 
 rested the defendant under subdivision 3 of section 179. 
 
 Thus, in Chappel m. Skinner (6 Howard, 338), an order of ar- 
 rest was obtained on the 8th of October, 1851, upon an affidavit 
 of ownership of personal property, and that it was wrongfully de- 
 tained by the defendant upon certain pretences specified. It con- 
 tained the allegations necessary, under section 207, to entitle the 
 plaintiff to an immediate delivery, and it stated also that the de- 
 fendant had clandestinely taken the property away and concealed 
 it, so that it could not be found by the sheriff. On the 15th of 
 October, the plaintiff made another affidavit similar to the first, 
 except as to the defendant's clandestinely removing the property ; 
 gave the undertaking under section 209, and made the requisition 
 under section 208 ; upon which the property was taken and de- 
 livered to the plaintiff. 
 
 A motion to vacate the second affidavit, undertaking, and 
 requisition, and to restore possession to the defendant, was 
 granted. 
 
 Section S09. 
 
 '■'■Security on the part of the plaintiff , and justification. 
 
 " 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 prosecu- 
 tion of the action — for the return of the property to the defend- 
 ant, 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 without delay 
 serve on the defendant a copy of the affidavit, notice, and under- 
 
§ 209.] CLAIM AND DELIVEEY. 119 
 
 taking, hj 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." 
 
 By the Code of 1848, a notice was to be added, that the sure- 
 ties would justify before a judge of the court, or county judge, 
 at a time and place therein named, not less than four, nor more 
 than eight days thereafter. This was omitted in 1849, and the 
 section has remained unchanged since. 
 
 The undertaking.— The undertaking is for the prosecution of 
 the action, and also for the return of the property to the defend- 
 ant, if the return be adjudged. This answers to the two original 
 separate pledges — the one at common law de j>rosequendo to an- 
 swer to the 'King pro falso clamore / and the other, ^ro retorno 
 hahendo, under the statute of Westminster, 2 cap. 2.' 
 
 Under the statute 11 Geo. II., cap. 19, one bond was sufficient, 
 from the plaintiif and two responsible persons as sureties, condi- 
 tioned for prosecuting the suit with effect and without delay, and 
 for duly returning the goods and chattels distrained, in case a 
 return shall be awarded. 
 
 By the act of 1813 (1 E. S. 92, § 4), the sheriff, before he 
 made deliverance of any goods, &c., was to take of the plaintiff 
 sufficient security to prosecute the suit, and to return the said 
 goods, &c., if return thereof shall be adjudged ; and if such 
 sheriff shall take security otherwise, or neglect to take such secu- 
 rity, he shall answer for the price or value of such goods, &c. 
 
 By the Eevised Statutes of 1830 (2 E. S. 523, § 7) the writ 
 was not to be executed unless (among other things) the plaintiff, 
 or some one in his behalf, should execute a bond to the sheriff, or 
 the officer to \^hom the writ is directed, with the addition of his 
 name of office, with sufficient sureties to be approved by such 
 sheriff, in a penalty at least double the value of the property 
 specified in the writ. The condition of the bond to be, that the 
 plaintiff should prosecute the suit to effect and without delay, 
 and will return the same property, if return thereof be awarded. 
 
 The sheriff is to judge whether one or more sureties must be 
 
 ' "Wilkinson on Replevin, p. 11, Law Library, vol. 6. 
 
120 CLAIM AND DELIVEEY. [§ 209. 
 
 given. A plaintiff cannot be a surety witli another person. But 
 the court will alloAv an amendment.' 
 
 An unexcused delay in the prosecution of the action, is as 
 much a breach of the condition of the bond, as a judgment of 
 return. This was held under the statute of "Westminster, and 
 a similar rule prevailed under that of Geo. II. 
 
 "Where the action was -stayed by injunction, during which 
 time the plaintiff in replevin died, so that there was neither non- 
 suit nor verdict, it was held that he had prosecuted his suit with 
 effect." 
 
 In Oxford m. Parrett (4 Bingham, 586), it was held that the 
 delay of two years in the proceedings was a breach of the condi- 
 tion of the bond to prosecute without delay. 
 
 In Harrison vs. "Wardle (5 Barn. & Adol. 146), it was decided 
 that a breach of the condition to prosecute without delay might 
 exist without the suit having proceeded to judgment for the de- 
 fendants, and while it was continuing. The party, however, was 
 not responsible for a delay which arose from the neglect of the 
 sheriff. 
 
 In "Whaling vs. Shales (20 Wendell, 673), it was held that the 
 proceedings were irregular and could be set aside on motion, 
 where the bond was executed by one surety only (18 "Wendell, 
 581, and 19 ibid. 632). The proceedings were ordered to be set 
 aside, unless the plaintiff executed a sufficient bond nunc pro 
 tunc, and the sureties justified. 
 
 The case from 18 "Wendell ("Wilson vs. "Williams) is stated at 
 length, j)os!!, section 210 ; and Kesler vs. Haynes (6 "Wendell, 547) 
 is overruled. 
 
 By section 423 of the Code, the undertaking provided for by 
 the chapter on the claim and delivery of personal property, shall, 
 after the justification of the sureties, be delivered by the sheriff 
 to the parties respectively for whose benefit it is taken. 
 
 And the defendants, being then the actual parties in interest, 
 may prosecute the undertaking in their own names. 
 
 Action on the undertaking. ^-It is not necessary in an action on 
 the undertaking to allege or prove the regularity of the proceed- 
 
 ' Burns vs. Robbins, 1 Code Reporter, 62. 
 
 " Carthews Rep. 519; 12 Mod. 380 ; Wilkinson on Replevin, 113. 
 
§ 209.] CLAIM AND DELIVEET. 121 
 
 ings in tlie replevin suit. (Slack vs: Heath, 4 E. D. Smith, 96.) 
 Nor to state the issuing of an execution against the property, and 
 its return unsatisfied. The parties are bound absolutely for pay- 
 ment, and must see that such payment is made. (Ibid.) 
 
 Costs. — When a third person had executed the undertaking 
 on behalf of the plaintiff, and the defendant obtained a judgment 
 against him for costs, which judgment was on appeal affirmed 
 with costs, the obligor was held responsible for both bills, in an 
 action on the undertaking. (Tibbies m. O'Conner, 28 Barbour, 
 538.) 
 
 Delivery or retention of property. — Under the statute, upon re- 
 ceipt of the writ, affidavit, and bond, the sheriff was to deliver 
 possession of the property to the plaintiff or his authorized agent. 
 (2 K. S. 523, § 8.) Under this section of the Code he is to retain 
 it until the defendant exercises his right of exception to the sure- 
 ties, under section 210, or reclaims the property under section 
 211. For either of these proceedings he is allowed three days 
 after service of the affidavit and notice. The excepting to the 
 sureties waives the right to reclaim. 
 
 Thus, in Graham vs. "Wells, sheriff, &c. (18 Howard Eep. 376), 
 the action was to recover a store of goods, which the defendant 
 had taken, by virtue of an attachment against one Canavan. On 
 the day of the commencement of the present action, the coroner 
 took the goods, and, on the 16th of October, the defendant de- 
 livered to him an undertaking, conforming to the requirement of 
 the 211th section. Harris, justice, said : " Upon the commence- 
 ment of an action for the recovery of personal property, the de- 
 fendant has a right to elect, whether the plaintiff or himself shall 
 hold the property pendente lite. Three days are allowed him 
 within which to make his election. He may, within three days, 
 except to the sufficiency of the plaintiff's sureties (under section 
 210). His exception is of itself evidence of his election not to 
 hold the property himself During the three days thus allowed 
 to the defendant, within which he may make his election, the 
 officer is required to retain the property in his possession. If the 
 defendant elect to hold it, the officer is still to retain the property 
 until the silreties justify, unless, indeed, he is willing himself to 
 take the risk of such justification. 
 
 " The effect of a demand by the defendant is not to entitle hina 
 
122 CLAIM AND DELIVEEY. [§ 209. 
 
 to a return, but only to prevent a delivery to the plaintiff. To 
 obtain a return, bis sureties must be given and justify under sec- 
 tion 211. The plaintiff has for his security the liability of the 
 sheriff until such justification, and the undertaking afterwards." 
 
 The undertaking under this section is to be, as before stated, 
 similar to the bond under the Eevised Statutes. 
 
 The case of Decker vs. Judson (16 K Y. Kep. 439, in the 
 Court of Appeals) settled some important points connected with 
 such a bond. The plaintiffs, in an action of replevin, had given 
 the usual bond to the sheriff under the Eevised Statutes., They 
 •were required, as a condition for postponing the trial, to renew 
 their sureties on such bond, or that such sureties should justify. 
 Judson, the appellant, signed the bond, beneath the names of the 
 other obligors, without the knowledge or assent of the previous 
 sureties. There was a judgment for defendant for the value of 
 the property, and execution returned unsatisfied. The bond was 
 assigned to Decker, the defendant, in the original suit, and the 
 present action was brought upon it. 
 
 " The right to take a bond or other security in the name of an 
 agent or trustee, for the benefit of the principal or cestui que trust, 
 is unquestionable. The Code sanctions this principle (§ 113). 
 The execution of the bond estopped Judson from denying the re- 
 citals in it, which imported that it was executed upon the institu- 
 tion of the replevin suit, and taken by the sheriff at a time when 
 it was lawful and proper to take the same. A replevin bond may 
 be amended after the service of the process, and, consequently, 
 after the time for taking an original bond had gone by. 
 
 " After the plaintiff has obtained possession of the property in 
 dispute, by acting on the bond as a lawful and valid security, 
 neither he nor his surety ought to be permitted to get rid of it by 
 alleging that it is not so strong or so perfect as the defendant 
 might have required him to make it." (Ruggles, J., in Shaw vs. 
 Tobias, 3 Comstock, 142.) 
 
§ 210.] CLAIM AJTD DELIVERY. 123 
 
 Section 210. 
 
 " Exception to sureties. 
 
 " The defendant may, within three days after tlie service 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 manner 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 justify. If the 
 defendant except to the sureties, he cannot reclaim the property 
 as provided in the next section." 
 
 This section was not in the Code of 1848. It was adopted in 
 1849, and has remained unchanged since. 
 
 The three days enables the defendant to determine, whether 
 the plaintiff or himself shall hold the property during the action. 
 The sheriff remains responsible until the end of the three days, or 
 until justification, if bail is excepted to. (Graham vs. Wells, 18 
 Howard, 376, stated sujpra.) 
 
 It was held, in Manley vs. Patterson (3 Code Hep. 89), that 
 where the defendant had excepted to sureties "in an undertaking 
 given under section 209, and they had omitted to justify, the de- 
 fendant could not move that the action be discontinued. The de- 
 fendant has the sheriff's responsibility to look to, who has dis- 
 cretion in approving the sureties. The plaintiff's proceedings in 
 the action cannot be affected. 
 
 In Cobb vs. Lachey (6 Duer, 649), it was ruled that, where 
 the defendant excepts to the sureties in the plaintiff's undertak- 
 ing, if one fails to justify, and for that reason a new surety is 
 substituted, a new undertaking must be executed. The original 
 undertaking cannot be altered by inserting therein the name of 
 the new surety, and by the latter signing it, without the consent 
 of the other surety, and of those for whose benefit or protection 
 it is required to be given. 
 
124 CLAIM AND DELIVEET. [§ 210. 
 
 The Code makes the sheriff absolutely responsible for the 
 sufficiency of the sureties until the period for excepting expires, 
 or until justification. 
 
 In this particular, it declares a rule somewhat d^erent from 
 that in England under the statute of 2 Geo. II., cap. 19, § 23 : — 
 The provisions of that statute were much like those of our Eevised 
 Statutes, and of the 209th section.of the Code. In various cases 
 it has been held that the sheriff does not warrant the sufficiency 
 of the sureties in the b^nd. He is bound to exercise a reasonable 
 discretion in regard to them, and it is for the jury to decide 
 whether that discretion has been properly used or not.' 
 
 In Armstrong vs. Burrell (12 Wendell, 302), ISTelson, justice, 
 said : The bond in this case was taken by the sheriff under the 
 4th section of the statute (1st E. L. 92), which is a copy of the 
 13th Ed. 1, c. 2, and is not assignable to the defendants in the 
 replevin suit. Such bond is taken for the indemnity of the 
 sheriff, and at his peril ; for, if he neglects to take it, or takes in- 
 sufficient pledges or bail, he becomes personally responsible for a 
 return of the goods replevied, in case a return is awarded by the 
 court. (House vs. Patterson, 2 Saunders, 195, note 36.) This 
 bond had, by the practice latterly, become the subject of an ac- 
 tion on the case in behalf of the sheriff. It enured for the benefit 
 of the parties defendant in the replevin suit. The sheriff had a 
 right to institute a suit without their consent, and they could not 
 release the bond after such suit commenced, without regard to 
 his interest in the costs. The proper course was by motion, when 
 the rights of all parties would be regarded. 
 
 By the 64th section of the Eevised Statutes of 1830 (2 E. S. 
 533), upon the return of an execution unsatisfied, the defendant, 
 or his representatives, could have an action on the bond executed 
 by the plaintiff and his sureties, to recover the value of the prop- 
 erty replevied, and the damages, &c., and such bond shall be 
 assigned to such defendant, or his representatives, on their re- 
 quest. 
 
 The contents of the bond (under sub. 2 of section 7, p. 523) 
 are before stated. {Ante, p. 119.) 
 
 The case of "Wilson vs. Williams (18 Wendell, 581), explains 
 
 ' Hinale m. Blades, 6 Taunton, 225 ; Scott m. Waittman, 3 Starkie, 168 ; Jefferey 
 vs. Bastard, 4 Adol. & Ellis, 823 ; Pluiuer vs. Brisoo, 11 Q. B. Kep. 46. 
 
§ 210.] CLAIM AND DELIVEET. 125 
 
 the liability of the sheriff under the Revised Statutes. It was 
 held, that the bond was as essential to the regularity of the writ 
 as the affidavit. The language was : " Such writ shall not be exe- 
 cuted, in anv case, unless the following provisions are complied 
 ■with," &c. 
 
 Under the old statute (1 E. S. 92, §§4, 8), whether a bond was 
 taken or not — and, when taken, if the sureties were sufficient or 
 not — the proceedings upon the replevin were regular, and the 
 only consequence was, the liability of the sheriff to the defendant 
 for the damages sustained by reason of such omission or defect. ' 
 
 The Statutes of Westminster, 2, and of 2 Geo. II. are adverted 
 to, and the court proceed : " The sheriff is himself responsible to 
 the party injured for the insufficient security, under either statute 
 in England, or under either section of our former statute. Even 
 after an assignment of the bond and suit, the action might have 
 been brought against the sheriff, as the assignment is no waiver 
 of proceedings against him. (1 Saund. 145, N. 3,f.) 
 
 " The defendant now being at liberty to except to the sureties, 
 and special care taken that he shall be enabled to do so, we think 
 that this officer is no longer responsible as before. As the defend- 
 ant has now control of the matter, there would seem to be no 
 longer any necessity or propriety for making the sheriff amenable 
 to him. Indeed, §§ 32 and 33 (2 E. S. 527) are conclusive upon 
 the point. If no exception shall have been entered to the sure- 
 ties in the bond, &c., the sheriff shall be discharged from ail lia- 
 bility for' the sufficiency of such sureties. If such exception shall 
 have been madfe, and judgment of discontinuance shall be ren- 
 dered against the plaintiff for his sureties not justifying (§ 30), 
 the sheriff shall be liable to the defendant for the sufficiency of 
 such sureties as now provided by law. (§ 32.) " 
 
 The 28th, 29th, 30th, 31st, 32d, and 33d sections of the statute 
 provided for the course upon exceptions, justification, exoneration 
 of the sheriff, &c. 
 
 Substantially, the principles of these regulations are retained 
 in the Code. The defendant must except, or he takes the liability 
 of the parties to the undertaking, and relieves the sheriff. If he 
 does duly except, justification, or new sureties justifying, will also 
 discharge the sheriff. Until the power of excepting expires, or 
 until justification, the sheriff remains responsible. 
 
126 CLAIM AND DELIVEET. [§ 211. 
 
 Section 211. 
 
 '"'■Defendant^ when entitled to re-delvoery. 
 
 " At any time before the delivery of the property to the plain- 
 tiff, 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 prop- 
 erty, 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 property be not so required within three 
 days after the taking and service of notice to the defendant, it 
 shall be delivered to the plaintiff, except as provided in section 
 216." 
 
 In the Code of 1848 the words above italicized, and the whole 
 of the last paragraph, were not inserted. In 1849 the section was 
 amended, and has remained unaltered since. 
 
 In Hunt m. Mootry (10 Howard, 478), it was held, that there 
 was no provision in the Code, nor in any statute, for the restitu- 
 tion of the property to the plaintiff after it was re-delivered to the 
 defendant pursuant to section 211. No further change in the 
 possession seems to be contemplated until judgment shall be ren- 
 dered. The law gives to the defendant a positive definite right ; 
 and the only question is. Can the court, in the exercise of its 
 equity jurisdiction, dispense with this, and allow the plaintiff 
 again to take possession? An ample and minute provision is 
 afforded by the Code for the specific restitution of personal prop- 
 erty ; and although the defendant is entitled, on giving seciu'ity, 
 to a re-delivery of the property, the court has the power to re- 
 strain the injury or disposition of it. The plaintiff could not have 
 the repossession of the property. 
 
 Under the former system, if the goods had once been deliv- 
 ered to the plaintiff in replevin, the defendant could not recover 
 
§ 212.] CLAIM AND DELITEET. 127 
 
 possession, except upon judgment in his favor. A writ of re- 
 plevin by him, after one issued against him, would be superseded 
 before return, or quashed after. (Morris vs. De "Witt, 5 Wendell, 
 71.) 
 
 In McCann vs. Thompson (13 Howard, 380), Justice Gierke 
 pointed out the apparent inconsistency between the last and the 
 first clause of this section. Under the first clause, it might be 
 that at any time before actual delivery to the plaintiff, though 
 after the expiration of three days from the notice, the defendant 
 might require a delivery to himself. If the clauses were contra- 
 dictory, the last would overrule the first. But the construction 
 should be, that at any time before the plaintiff was entitled to the 
 delivery — that is, at any time within the three days — the defend- 
 ant might require the return. 
 
 The undertaking is not void, if made to the plaintiff in the 
 action. (Slack vs. Heath, 4 E. D. Smith, 95.) 
 
 The sheriff must retain the property in his possession during 
 the three days which the defendant has to elect whether he will 
 require a return or not. If he elect to demand it, the sheriff 
 must still retain possession until the defendant's sureties justify, 
 unless the sheriff is willing to take the risk. The effect of the 
 defendant's demand is not to entitle him to the property, but to 
 prevent a delivery to the plaintiff. (Graham vs. Wells, 18 How- 
 ard, 376.) 
 
 Section 212. 
 
 " Justification of defendants sureties. 
 
 " 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, in 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 defend- 
 ant's sureties 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 justify at the time and 
 place appointed, he shall deliver the property to the plaintiff." 
 
123 CLAIM AUD DELIVEEY. [§ 213. 
 
 The Code of 1848 was merely as follows : " The defendant's 
 sureties, upon a notice to the plaintiff of not less than four, nor 
 more than eight days, shall justify before a judge, in the same 
 manner as the sureties given by the plaintiff ; and, upon such 
 justification, the sheriff shall deliver the property to the defend- 
 ant." The amendment was in 1849. The mode of justification 
 is stated ante, eh. I., §§ 194, 195. See, also, the next section. 
 
 Justice Harris observes in Graham vs. Wells (18 Howard, 3Y6), 
 that the time within which the defendant is to proceed to have 
 his sureties justify is not limited, nor need it be. It is enough for 
 the plaintiff that the property is to be retained by the oflacer. until 
 such justification takes place, unless the oflScer chooses to make 
 himself personally responsible that the sureties shall justify. The 
 plaintiff cannot have the property ; and whether it remains in the 
 hands of the oflicer or of the defendant, does not concern him 
 farther than to know that he has sufficient security for the de- 
 livery of the property to him, in case he obtains judgment for 
 such delivery. This security he has in the liability of the officer, 
 until the sureties have completely justified. 
 
 Section 313. 
 
 " Qualifications and justification of sitreties. 
 
 " The qualifications of sureties and their justification shall be 
 as prescribed by sections 194 and 195, in respect to bail upon an 
 order of arrest." 
 
 See these sections, and the decisions under them, ante, pp. 
 73-78, &c. 
 
 In Graham vs. Wells (18 Howard, 376), before cited, five 
 sureties had executed the undertaking on the part of the defend- 
 ant ; but three only appeared to justify. They justified in the 
 aggregate to $60,000. The value of the property, according to 
 the plaintiff's affidavit, was $22,100. Justice Harris said : " The 
 requirement of the statute is that, where more than two bail are 
 allowed to justify, the whole justification shall be equivalent to 
 that of two sufficient bail. The amount specified in the under- 
 
§ 214.J CLAIM AND DELIVEET. 129 
 
 taking was $45,000. If there liad been but two sureties, tliey 
 would each have been required to justify in this amount. This 
 would have amounted in the aggregate to $90,000. A less amount 
 than this was insufficient. Yet sureties have been pronounced 
 sufficient who have only justified to the amount of $60,000. I 
 regard such a justification as irregular. The application for a 
 stay of proceedings must, therefore, be granted." The application 
 was to prevent the delivery of the property to the defendant. 
 There had been an approval of the undertaking by another judge. 
 
 Section 314. 
 
 " Property, Jiow taken, when concealed in huilding or 
 inclosure. 
 
 " If the property, or any part thereof, be concealed in a build- 
 ing or inclosure, the sheriff shall publicly demand its delivery. 
 If it be not delivered, he shall cause the building or inclosure to 
 be broken open, and take the property into his possession ; and, if 
 necessary, he may call to his aid the power of his county." 
 
 This section has remained unchanged since its enactment in 
 1848. 
 
 A similar provision is contained in the Revised Statutes (2 
 E. S. 524, § 10), and also in the laws of 1813 (1 E. S. 92, § 3). 
 It is derived from the statute Westminster 1, cap. 17, which was 
 enacted to restrain the habit of driving distresses into strongholds, 
 which became, during the wars of the Barons, a source of great 
 oppression. The statute directed that, upon demand and refusal 
 to allow the distress to be delivered, the castle or stronghold 
 should be razed and thrown down. 
 
 The sheriff may break open doors to execute a replevin, and 
 call \hQ posse comitatus to his assistance.' 
 
 " 2 Institutes, 193 ; 3 Black. Com. U9. 
 
130 CLAIM AND DELIVERY. [§ 215. 
 
 Section S15. 
 
 " Property^ liow Icept. 
 
 " 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." 
 
 This section has remained unaltered since its adoption in 
 1849. It was then section 190. 
 
 The case of Moore vs. Westervelt is an important one in illus- 
 tration of the meaning of the section, and duty of the sheriff. 
 
 It is first reported before the Superior Court in 2 Duer's Ke- 
 ports, 59. The action was against the sheriff of New York for 
 neglect of duty. The plaintiffs had brought a suit to recover a 
 quantity of coal, then on board a schooner lying in the port of 
 New York. The sureties, being excepted to by the defendant in 
 the action, the sheriff left the coal on board during the time al- 
 lowed for the justification. It was sunk by a storm, and dam- 
 aged. The plaintiff recovered in the first action, and brought 
 the present suit for his damages, by reason of the sheriff's 
 neglect to remove or to protect the coal by proper measures. 
 It was held that it was not a case for a submission of the 
 question to the jury whether the sheriff was wanting in reason- 
 able and proper care, in guarding the vessel against the conse- 
 quences of the storm which arose and sunk her. It was clear 
 there was evidence to show such neglect, which was uncontra- 
 dicted. It might be that the question whether he was not liable 
 for leaving it in an insecure place would arise on another trial. 
 
 After a new trial, the case came again before the Superior 
 Court. (1 Bosworth, 358.) It was then held that, when a sheriff 
 takes possession of personal property under service of legal pro- 
 cess, he is bound to ordinary care and diligence in its custody — 
 *. 6., the same care and diligence that a prudent man would take 
 of his own property. But if the sheriff leave the property in the 
 hands of the defendant in the action, he becomes the insurer of it 
 
§ 216.] CLAIM AND DELIVEEY. 131 
 
 to the plaintiff, and nothing will excuse him, in the event of a loss, 
 but the act of God, or of public enemies. 
 
 The judge at the trial took the question of negligence from 
 the jury, leaving them to pass only upon the amount of dam- 
 ages. 
 
 Upon an appeal, Mr. Justice Selden, who delivered the opin- 
 ion of the court, referred to the rule as to the negligence which 
 would make a sheriff liable, as stated by Judge Story (On Bail- 
 ments, § 130), and thought it was stating the doctrine somewhat 
 too faintly. He was an oflBcer whom the party was compelled to 
 employ, and was clothed with a public trust. The doubt, there- 
 fore, was, not whether the oflScer is bound to take ordinary care, 
 but whether he ought not to be held to a somewhat higher de- 
 gree of vigilance. 
 
 It was held, however, that the question of negligence, what- 
 ever might be the rule, should have been submitted to the jury. 
 
 The sheriff in that case had left the property (coal on board a 
 vessel) under the control of the defendant, and it was insisted 
 that this of itself made him personally liable. Without deter- 
 mining what would be the general rule, and whether there was 
 any distinction between cases on mesne or final process, the coiirt 
 held that as the sureties of the plaintiff had not justified at the 
 time, the sheriff could not have safely delivered the property to 
 him, and he was justified in omitting to incur the great expense 
 of a removal, as there was reason to infer the assent of the master 
 of the vessel to its remaining on board. It was incumbent on 
 the plaintiff to show some degree of negligence on the part of 
 the sheriff, beyond the mere fact of omitting to remove the coal.' 
 
 Section 216. 
 
 " Claim of property iy third person. 
 
 " If the property taken be claimed by any other person than 
 the defendant or his agent, and such person shall make afiidavit 
 of his title thereto and right to the possession 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 
 
 ' 21 N. y. Rep. 103. 
 
132 CLAIM AND DELIVEET. [§ 216. ' 
 
 deliver it to the plaintiff, unless the plaintiff, on demand of him 
 or his agent, shall indemnify the sheriff against such claim, by 
 an undertaking executed by two sufficient sureties, accompanied 
 by their affidavits, that they are each worth double the value of 
 the property as specified in the affidavit of the plaintiff, and free- 
 holders 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 sheriff, unless made as aforesaid ; and not- 
 withstanding such claim, when so made, he may retain the prop- 
 erty a reasonable time to demand such indemnity." 
 
 This section was added to the Code in 1849, and has remained 
 unaltered since. 
 
 This section does not apply where the sheriff has seized prop- 
 erty wrongfully. 
 
 In King m. Orser (4 Duer, 431), several propositions, includ- 
 ing the one stated, were laid down. Although the sheriff could 
 not before the Code, have been made liable as a trespasser for 
 taking the goods described in the writ of replevin, from the pos- 
 session of a third person claiming to be the owner, yet in the 
 action which the Code has substituted for that of replevin, he can 
 only take the property described in the affidavit of the plaintiff, 
 when it is found in the possession of the defendant himself, or his 
 agent. The statute, by necessary implication, authorized the 
 sheriff to take the goods wherever they might be found in his 
 county ; since it was only when they could not be found therein, 
 that he was authorized to arrest the defendant. But by the 
 Code, the powers of the sheriff are much more limited. 
 
 If the property is in the possession of another, the sheriff can 
 only free himself from liability as a trespasser, by showing that 
 this person was in reality no more than an agent of the defend- 
 ant, having possession in that capacity. 
 
 In Edgerton vs. Ross and others (6 Abbott's Rep. 189), there 
 was an order to show cause why proceedings of claim and deliv- 
 ery should not be set aside. Ross, one of the defendants, had 
 commenced an action in the Supreme Court against Davis and 
 another, to recover possession of personal property. He took 
 proceedings under section 206, &c. ; and the sheriff took the 
 chattels in question under a requisition. 
 
§ 216.] CLAPI AOT) DELWEEY. 133 
 
 Edgerton claiming to be the owner, brought this action in the 
 Court of Common Pleas, against Eoss and the sheriff, for the pos- 
 session of the same goods. He took similar proceedings of claim 
 and delivery, and issued a requisition to the coroner, requiring 
 him to take the goods from the sheriff. Held, on motion of Eoss, 
 that the proceedings in the second action must be set aside as 
 irregular. 
 
 Judge Hilton said : " It is a familiar rule, that when a remedy 
 is provided by the statute in any case, and the proceeding by 
 which the remedy shall be pursued is distinctly specified, it is a 
 virtual prohibition against proceeding in any other manner, and 
 all other modes are excluded in the cases to which the remedy 
 relates. (4 Burr. 2305 ; 3 Comstock, 9.) If the plaintiff desired 
 to claim the property in question, he should have made the affi- 
 davit specified in section 216 of the Code, and delivered it to 
 the sheriff; who, unless indemnified against this claim, would re- 
 store the property to the parties from whom it had been taken." 
 
 The Eevised Statutes provided for the ease of a claim of 
 property by a defendant, as well as a stranger. (2 E. S. 525, 
 § 13.) If the defendant, or any other person who might be in pos- 
 session of the goods and chattels specified in the writ, claimed pos- 
 session of the same, or of any part thereof, and should pay to the 
 sheriff his fees, and the fees of the jury for trying such claim, the 
 sheriff was to take the goods and detain them in his custody, and 
 should forthwith summon a jury to appear before him at such 
 time and place as he should specify, which time should be within 
 two days thereafter, to try the validity of such claim. 
 
 The present section relates singly to a claim by a stranger to 
 the action, not an agent of the defendant. It comprises also two 
 cases ; first, of a taking out of the possession of the third party, 
 who claims the ownership ; and next, of a claim to the owner- 
 ship, though possession has not been taken before the sheriff has 
 taken the property. King vs. Orser, before cited, appears to de- 
 cide that the sheriff cannot take property so circumstanced ; and 
 no doubt an action will lie against him. I do not know that it 
 has been decided whether the course pointed out in the Eevised 
 Statutes may be pursued, or whether a claimant is not left in 
 every case to his action. 
 
134: CLAIM AND DELIVEEY. [§ 217. 
 
 Section 217. 
 
 " Notice and affidavit, when and where to he filed. 
 
 " The sheriff shall file the notice and affidavit, with his pro- 
 ceedings thereon, with the clerk of the court in which the action 
 is pending, within twenty days after taking the property men- 
 tioned therein." 
 
 Abatement. — An action for the recovery of personal property 
 wrongfully detained, against a sole defendant, who dies before 
 verdict or judgment, wholly abates. The court has no power to 
 order it to be continued against his personal representatives. 
 (Hopkins vs. Adams, 5 Abbott, 351 ; 6 Duer, 685.) 
 
CHAPTER III. 
 
 INJUNCTION. 
 
 Introductory. — The writ of injunction has been always the 
 most efficient instrument for carrying into effect the equitable ju- 
 risdiction of a Court of Chancery. The peculiar power of the 
 court, and the redress it afforded, involved such a process, and 
 it must of necessity have been almost coeval with the jurisdic- 
 tion itself. One of its great principles was preventive, as dis- 
 tinguished from remedial, justice. Lord Campbell says,' "that 
 after much investigation, he must express his clear conviction, 
 that the chancellor's equitable is as indubitable, and as ancient, as 
 his common-law jurisdiction ; and that it may be traced in a man- 
 ner equally satisfactory. By equitable jurisdiction, must be un- 
 derstood the extraordinary interference of the chancellor, without 
 common-law process, or regard to the common-law rules of pro- 
 ceeding, upon the petition of a party grieved, who was without 
 adequate remedy in a court of common law ; whereupon the op- 
 posite party was compelled to appear and to be examined, either 
 personally or upon interrogatories ; and evidence being heard on 
 both sides, without the interposition of a jury, an order was made 
 secundum cequum et honum, which was enforced by imprison- 
 ment." 
 
 The learning upon this subject is exhausted in Mr. Spence's 
 work upon the jurisdiction of the Court of Chancery ; and he 
 considers that injunctions were introduced by analogy to the in- 
 terdicts of the civil law." Injunctions to restrain actions at law 
 upon instruments, which were unconscionable, or improperly ob- 
 tained, were well known in the time of Henry VI.' The title of 
 Injunctions is found in the old Abridgments, and cases noted in 
 the reign of Edward IV.' 
 
 ' Lives of the Lord Chancellore, Vol. I, p. 30. ' Vol. I., p. %H, et seq. 
 
 " Lives of the Lord Chancellors, Vol. I. ' Ibid. 310. 
 
136 INJUNCTION. \_IntroduGtory. 
 
 Sir Thomas More was cautious in granting injunctions, yet 
 allowed and maintained them with firmness where he thought 
 that justice required his interference with the judgments of the 
 courts of common law. He was of opinion that law and equity 
 might be administered by the same tribunal, and he made an 
 effort to induce the common-law judges to relax the rigor of their 
 rules, with a view to meet the justice of particular cases ; but not 
 succeeding in this, he resolutely examined their proceedings, and 
 stayed trials and executions wherever it seemed to him that wrong 
 would be done from their refusal to remedy the effects of acci- 
 dent, to enforce the performance of trusts, or to prevent secret 
 frauds from being profitable to the parties concerned in them.' 
 
 Injunctions which interfered with the proceedings or judg- 
 ments at common law, speedily aroused the jealousy and opposi- 
 tion of the common-law tribunals, and led to the bitter contro- 
 Tersy between Lord Coke and Lord Chancellor Ellesmere, which 
 was terminated by the decision of King James. The authority of 
 the Court of Chancery was sustained, and has been acted upon 
 ever since in England, and in a large number of the States that 
 have grown up under the system of English law."" 
 
 It will be interesting, and not useless, to refer to the language 
 of the distinguished law officers, most of them judges in after 
 years, upon which the decision of James I. was founded : 
 
 "According to Your Majesty's commandment, we have ad- 
 visedly considered of the note delivered unto us, of the precedents 
 of complainings and proceedings in chancery after judgments at 
 common law ; and have also seen and perused the originals out of 
 which such note was abstracted ; upon all which we do find and 
 observe the points following : 
 
 " We find that there hath been a strong current of practice in 
 chancery of proceeding after judgment, and mainy times after ex- 
 ecution, continuing from the beginning of King Henry Yllth's 
 reign until the time of the Lord Chancellor that now is ; it being 
 in cases where there is no remedy for the subject by the strict 
 course of the common law, unto which the judges are sworn. 
 
 ' Lives of the Lord Chancellora, p. 416, Henry VIII. ; see also Spence Eq. Juris., 
 Vol. I., p. 674. 
 
 ^ See Reports in Chancery, Vol. I. ; Jurisdiction of the Court of Chancery ; 1 Col- 
 lect Juridica, 23; 1 Wooddeson's Lectures, III.; Lives of the Lord Chancellors, II., 
 p. 212. 
 
Intfoductory.] injunction. 137 
 
 " "We find that the proceeding in chancery hath been after 
 the judgment in actions of several natures, as well real as per- 
 sonal. 
 
 " We find that it hath been after judgment in Your Majesty's 
 several courts, the King's Bench, Common Pleas, Justices in 
 Eyre. 
 
 " We find it hath been after judgment obtained upon verdict, 
 demurrers, and where writs of error have been brought. 
 
 " We find in many of the cases, that the said judgments are 
 expressly mentioned in the bills in the chancery, and relief prayed 
 thereupon — sometimes for stay of execution, sometimes after exe- 
 cution ; of which kind we find a great number in King Henry 
 the Vllth's time. 
 
 "We find the matter of equity laid in such bills, in most of 
 the cases, to have been matter precedent before the said judgment, 
 and not matter of agreement after. 
 
 " We find in the cases not only the bill preferred, but motions, 
 orders, injunctions, and decrees thereupon for discharging and re- 
 leasing of the judgments, or avoiding the possession thereupon 
 obtained ; and sometimes for the mean profits, and the release of 
 the costs, &c. 
 
 " We find in some of the cases, that this very point, that judg- 
 ment hath been given, hath been stood upon by the defendants, 
 and alleged by way of demurrers, and overruled." 
 
 Among the important changes made by the late acts in Eng- 
 land, is one by which the courts of common law can issue an in- 
 junction order. By the Statute 17 and 18 Victoria, ch. 125, §§ 
 79-82, it was enacted, " that in all cases of breach of contract or 
 other injury, where the party injured is entitled to maintain, and 
 has brought an action, he may, in like case and manner as is 
 therein before provided in respect to a mandamus, claim a writ 
 of injunction against the repetition or continuance of such breach 
 of contract or other injury, or the committal of any breach of con- 
 tract or injury of a like kind, arising out of the same contract, or 
 relating" to the same property or right ; and he may also in the 
 same action include a claim for damages or other redress." (§ 79.) 
 
 By the 82d section, " it shall be lawful for the plaintiff, at any 
 time after the commencement of the action, and whether before 
 or after judgment, to apply ex-parte to the court or a judge for a 
 
138 INJUNCTION. \Ini/t'oductory. 
 
 writ of injunction to restrain the defendant in such action from 
 the repetition or continuance of the wrongful act or breach of 
 contract complained of, or the committal of any breach of con- 
 tract or injury' of a like kind, arising out of the same contract, or 
 relating to the same property or right ; and such writ may be 
 granted or denied by the court or judge, upon such terms as to 
 the duration of the writ, keeping an account, giving security, or 
 otherwise, as to -such court or judge shall seem reasonable and 
 just ; and in case of disobedience, such writ may be enforced by 
 attachment by the court, or, when such 'court shall not be sittings 
 by a judge : provided, always, that any order for a writ of injunc 
 tion made by a judge, or any writ issued by virtue thereof, may 
 be discharged or varied or set aside by the court, on application 
 made thereto, by any party dissatisfied with such order." 
 
 In our State the exercise of this power and employment of 
 this writ, may be traced as far back as we have any records of 
 the court. The history of the struggle against the court in colo- 
 nial days, will be found in the works referred to in the note.' 
 
 The Constitution of 1777 treats the chancellor as a known 
 officer, and implies that the coiirt is in existence. 
 
 By an early act after the revolution, the court was organized ; 
 and subsequent statutes prescribed the mode of exercising juris- 
 diction, and recognized the right to issue inj unctions. (See the 
 acts referred to, 1 K. L. 1813, p. 486.) 
 
 The subject of injunctions received early attention in the 
 Eules of Court ;" and in 1830, the Revised Statutes adopted a 
 comprehensive and minute system for their regulation.' 
 
 The continuance of equity as a distinct branch of j urispru- 
 dence, and the application of equitable as well as legal remedies, 
 are inferrible from the language of the Code, and have been re- 
 peatedly recognized by the courts. 
 
 In Reubens vs. Joel (3 Kernan, 488), Mr. Justice Selden has 
 stated the result of a careful examination of the Constitution and 
 the Code, in the following language: "It is in my judgment 
 clear, that the Legislature has not the constitutional power to re- 
 
 ■ Preface to 1 Johns. Ch. Reports ; History by Judge Daly, 1 E. D. Smith, 1 . 
 
 '^ Eules of Chancellor Lansing, 41, 42, 43. 
 
 ' See, for a history of these provisions, WiUard's Eq. Juris., p. 348. 
 
lni/roducto7'y.\ mjuNoxioN. 139 
 
 duce all actions to one homogeneous form ; because it could only 
 be done by abolishing trial by jury, with its inseparable accom- 
 paniment, compensation in damages, which would not only con- 
 flict with Art. I., § 2, which preserves trial by jury, but would 
 in effect subvert all jurisdiction at law, as all actions would 
 thereby be rendered equitable — or, by abolishing trial by the 
 court, with its appropriate incident, specific relief ; which would 
 destroy all equity jurisdiction, and convert every suit into an ac- 
 tion at law." 
 
 The learned judge cites the case of Parsons vs. Bedford (3 
 Peters' U. S. Kep. 433), and says : " This case is a direct authority 
 to show, what indeed is plain without authority, that the Consti- 
 tution, by conferring jurisdiction in law and equity, has not only 
 recognized the distinction between them, but placed that distinc- 
 tion beyond the power of the Legislature to abolish ; which, as 
 has been shown, it could only do by abolishing one or the other 
 of the two jurisdictions." 
 
 It is of importance to notice, that these observations are made 
 in reference to the 69th section of the Code, declaring that the 
 distinction between actions at law and suits in equity, and the 
 forms of all such actions and suits heretofore existing, is abolished. 
 It is added by the learned judge — " As section 69 is plainly in 
 conflict, not only with the Constitution, but with the subsequent 
 provisions of the Code itself" (sections 253 and 254 are particu- 
 larly noticed), " it cannot aid us in putting the proper construc- 
 tion upon section 219." 
 
 The Code has attempted to comprise in general language, if 
 not to define, the cases in which a temporary injunction may be 
 obtained. Its provisions are confined to the proceeding as a 
 provisional remedy — one operating during the suit — and do not 
 relate to a final injunction. 
 
 "Mr. Justice Woodruff, in commenting upon the 219th sec- 
 tion, observes: "This very general language would seem to pro- 
 vide for §very case in which a temporary injunction was proper 
 before the Code. Indeed, it was not, in my opinion, the design 
 of the Legislature to abridge the powers of the courts as courts'* 
 of equity, to grant that provisional relief theretofore had by in- 
 junction. On the contrary, the last clause of section 219 is a 
 
140 INJUNCTION. [§ 218. 
 
 plain enlargement of the power." ' Howard vs. Ellis (4 Sandf. 
 S. Ct. Eep. 369), and Malcolm vs. Miller (6 Howard Pr. Eep. 
 456), are cited to show, that the Code has not impaired the gene- 
 ral power of the court to enjoin, where an injunction was before 
 proper. 
 
 So, in Woodworth vs. Lyon (5 Howard, 463), Mr. Justice Bar- 
 culo says : " To my mind it is apparent that section 219 of the 
 Code has no reference to an injury under the forms of law, or 
 by virtue of judicial proceedings ; it cannot be construed to 
 create new rights of action, or give new remedies." He is 
 speaking in reference chiefly to the first clause. See further the 
 cases under section 219. 
 
 Section .818. 
 
 " Injunction hy order. 
 
 " The writ of injunction, as a provisional remedy, is abolished, 
 and an injunction by order is substituted therefor. 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 from the enactment of 
 April, 1848. It was the 191st section of that Code, and was 
 changed to the 218th in 1849. 
 
 The writ of injunction is only abolished as a provisional rem- 
 edy. An injunction made upon hearing and decree, termed a 
 perpetual injunction, was to be enforced by a writ. This will be, I 
 apprehend, necessary now." 
 
 The order of 'the Code is in every particular the substitute for 
 the writ. By the former practice, the chancellor, or proper offi- 
 cer, indorsed au allowance of an injunction on the bill ;, an order 
 
 <v 
 
 ' Merritt vs. Thompson, 3 E. D. Smith, 284. 
 
 ^ 1 Fowler's Exoh. Pr. 285. It is in the nature of a writ of execution or habere 
 facias possessionem, when recov^y of real property ia the subject. Seaton on De- 
 crees, 401, 407, 435. 
 
§ 218.] INJUNCTION, 141 
 
 was thereupon entered, and a writ under seal, pursuant to such 
 order." 
 
 The order may be by a county judge, as well as by a judge of 
 the court in which the action is brought. 
 
 For the cases upon the power of a county judge, see title 
 " Arrest and Bail," section 180, ante p. 44. 
 
 It has been held that an injunction may be granted at the 
 General Term-. 
 
 In Drake m. The Hudson Eiver E. E. Co. (2 Code Eep. 67), 
 a motion for an injunction had been made at the Special Term, 
 and referred to the General Term. The court considered that such 
 a motion could be made before it. The Code directed that the 
 order might be made by the court. 
 
 In The Town of Guilford m. Cornell (4 Abbott, 220), the 
 General Term reversed a judgment, gave judgment in favor of the 
 defendant, dissolving the injunction, and for costs. Afterwards, 
 on a motion, the General Term made an order continuing the in- 
 junction until the decision of an appeal in the Court of Appeals. 
 ITo undertaking was given on such appeal, except for costs under 
 section 334. 
 
 Justice Balcom (at Special Term) says : " It was not necessary 
 to inquire whether the court had the power to make that order, 
 as it could not make the sureties on the undertaking originally 
 given, sureties for subsequent proceedings. It was distinctly a 
 new injunction. It was as to them, a simple order staying pro- 
 ceedings. Their liability was discharged by the judgment of the 
 General Term for the defendants." 
 
 The case is reported in 18 Barbour, 615, and in 3 Kernan, 
 143 ; but nothing appears of the order at General Term. 
 
 A General Term may affirm, reverse, or modify a judgment. 
 (§ 330.) It deserves consideration, whether part of a judgment 
 of reversal of a judgment for a perpetual injunction, can be for 
 a temporary injunction, under the idea of a modification. 
 
 So, it would seem, the case must depend upon the right of the 
 General Term to grant Sn injunction originally. 
 
 I have not found any other case than the two cited, directly 
 upon the question. See jpost. " The Effect of Appeal on an in- 
 junction," and Hoyt vs. Carter, 7 Howard, 140. 
 
 ' 1 Hoffman's Ch. Pr. 81. 
 
142 INJUNCTION. [§219. 
 
 In Dickerson vs. Cook (3 Duer, 324), an injunction was dis- 
 solved at Special Term for want of a proper bond. The order was 
 afllrmed at General- Term. But ordered that the injunction might 
 be restored and continued, on the party giving, within ten days, a 
 bond with two sureties in the amount of the judgment. Such 
 bond was sued upon, and judgment recovered. 
 
 Upon the caution proper in granting an injunction, I con- 
 tent myself with referring to the opinion of the court delivered 
 by Mr. Justice "Woodi-uff, in Fredericke vs. Mayer (1 Bosworth's 
 Eep. 22Y). " The exercise of this summary power should be 
 guarded by a most cautious discretion, forbidding its exercise 
 when it will operate oppressively, or work immediate injury, 
 or where the right of the plaintiff is doubtful, or the facts 
 are not clearly ascertained. It has been well said, that there is 
 no power, the exercise of which is more delicate, which requires 
 greater deliberation and discretion, or is more dangerous, in a 
 doubtful case, than the .issuing of an injunction." (Justice Bald- 
 win, 1 Bal. C. 0. Eep. 218.) 
 
 Section 219. 
 
 " Injwnction, in what cases granted. 
 
 " (1.) Where it shall appear by the complaint that the plain- 
 tiff 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 liti- 
 gation would produce injury to the plaintiff, or, 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 tem- 
 porary injunction may be granted to restrain such act. 
 
 " (2.) And where, during the pendency of an action, it shall 
 appear by affidavit that the defendant threatens or is about to 
 remove or dispose of his property, with intent to defraud his cred- 
 itors, a temporary injunction may be granted, to restrain such 
 removal or disposition." 
 
§ 219.] mjimcTioN. 143 
 
 The provision in the first subdivision has remained the same 
 from the enactment in 1848 (then the 192d section), except that the 
 clause " would produce injury to the plaintiff" then was "would 
 produce great or irreparable injury to the plaintiff." The words 
 italicized were omitted in 1849, and the section has continued 
 unaltered since. 
 
 The second subdivision, as above marked, was adopted in 
 1849, and has continued in the Code since that time. 
 
 These subdivisions are so marked by the author, for convenience 
 of examination. 
 
 The exposition which the section has received in Eeubens vs. 
 Joel (3 Kernan, 488), as it comes from the highest authority, re- 
 quires particular notice. Mr. Justice Selden says : " If we care- 
 fully scrutinize its provisions, it will be found to bear upon its 
 face unmistakable evidence of a discrimination by the Legisla- 
 ture, in its enactment, between actions at law and suits in equity. 
 The first branch of the section plainly applies to the latter class 
 of actions exclusively. It provides that, when relief demanded 
 in the complaint consists in restraining the commission or con- 
 tinuance of some act, or where, during the litigation, it shall 
 appear that the defendant is doing or threatens to do some act in 
 violation of the plaintiff's rights respecting the subject of the 
 action, a temporary injunction may be granted, &c. ISTow, it is 
 manifest that this provision can apply only to suits in equity, or 
 suits made triable by the court, which is the same thing. The 
 terms used incontrovertibly establish this. It is equally clear 
 that, if the remaining branch of the section had not been intended 
 to apply to actions of a different class, there would have been no 
 necessity for inserting it as a separate and distinct provision. A 
 few additional words would have included it in the previous 
 clause. The only class of actions not provided for by that clause is 
 actions at law — that is, actions which are made triable by jury ; 
 and to this class, therefore, it was clearly intended to apply. The 
 last clause is the only part of the section which contains any thing 
 new, the previous portion being, in substance, a mere embodiment 
 of ^established equity principles." 
 
 Right to the relief demanded. — It must appear that the plain- 
 tiff is entitled to the relief demanded ; and this must appear upon 
 
144: INJUNCTION. [§ 219. 
 
 the allegations of the complaint. It should be seen that, upon 
 the case made, the court can adjudge the relief demanded. 
 
 Now, this is an undoubted general rule, and one necessary to 
 be understood in its extent and qualifications. These must be 
 gathered from the authorities. 
 
 In Snowden vs. Noah (Hopkins' Eep. 347), the court ruled 
 that, as the right to the newspaper establishment there in question 
 was not clearly in the plaintiff, the party must be left to the 
 ordinary course of law. The injunction is used to protect rights 
 which are clear, or at least free from reasonable doubt. 
 
 In Hart vs. The Mayor, &c., of Albany (3 Paige, 213), the 
 Chancellor held, that where the right of a party was doubtful, 
 the court would not grant an injunction to prevent an illegal 
 interference with the same, until the right was established at law. 
 And in Olmstead vs. Loomis (6 Barbour, 152), it was laid 
 down that, to authorize an injunction, there must be not only a 
 palpable violation of the plaintiff's rights, but the rights them- 
 selves must be certain, and capable of being clearly ascertained 
 and measured. 
 
 See, also, the Attorney Gen. vs. Hunter, Devereux Eq. Rep., 
 p. 12. 
 
 Yet, in a large class of cases, the court acts upon the rule of 
 preserving property in the same situation as it exists ; and will 
 act upon this rule, even where the plaintiff's right to an injunc- 
 tion is not plainly made out on his own case, but eventual justice 
 will be best answered by an injunction. 
 
 Thus, in OUendorf vs. Black (1 En. L. & Eq. Eep. 114), Vice- 
 Chancellor Bruce said : " It has been said here that the legal 
 right is doubtful ; that the mere existence of the doubt is suificient 
 to prevent the court from granting the injunction. In that I do 
 not agree. I believe that doctrine to be new in this court ; for it 
 would interfere, theoretically and practically, with its jurisdiction 
 daily exercised to a very great extent. The question of the legal 
 right being in doubt is a matter for the serious attention of the 
 court, and one to which it is right that weight should be given ; 
 but it is not a matter which renders it incumbent on the court to 
 refuse the injunction. The court must be guided by a discretion 
 exercised according to the exigencies and the nature of each par- 
 ticular case." 
 
§ 219.] INJUNCTION. 145 
 
 So, in Clowes vs. Beck (7 ibid. 42), the plaintiff claimed to be 
 entitled to a beach under a grant from the Crown. The defend- 
 ant's surveyors took stones from it to mend his way, alleging a 
 right by custom, &c. It was held that the plaintiif 's rights were 
 legal, and must be decided by an action, but the court must con- 
 sider which of the two parties would be likely to sustain the most 
 injury ; and, notwithstanding the want of distinct evidence to the 
 injury, the court, to prevent possible mischief, would grant an 
 injunction, and give the plaintiif leave to bring an action. 
 
 In Beman vs. Kufford (6 ibid. 106), the directors of a company 
 had entered into a contract, the validity of which was doubtful, 
 to expend money in laying down rails. They were restrained, 
 until the validity of the contract was tried at law. 
 
 On the other side, in the Shrewsbury & Birmingham E. E. 
 Co. vs. The ]S"orth-Western K. E. Co. (1 ibid. 122), where the 
 plaintiff's right was doubtful, and the continuance of the injunc- 
 tion was unnecessary for the protection of that right, should he 
 establish it, and was injurious to the defendants, the injunction 
 was dissolved. An account was ordered. 
 
 In Cole vs. Sims (23 ibid. 684), Lord Justice Bruce said : "At 
 present, all we have to do is to say whether a prima facie case 
 for an injunction has been made, and whether more mischief will 
 be done by granting than by withholding it. I am of opinion 
 that there is so much probability in the case for an injunction 
 that it was properly granted, and ought to be continued ; and 
 that the mischief that may arise from continuing it, does not pre- 
 ponderate over that which would arise from refusing it." 
 
 In the case of The Eector, &c., of the Church of the Holy In- 
 nocents vs. Keech," there was a covenant between the parties for 
 the erection by the plaintiffs of a party wall of a foot in width, 
 six inches on the land of each party respectively, one-half to be 
 paid for by the defendant. The plaintiffs completed it from a 
 point in the rear to a point short of the line of a street by about 
 two feet six inches. The plaintiffs insisted that they were not 
 bound to go further ; the defendant, that the wall was to extend 
 to the street line. The contract contained no authority to the de- 
 fendant to build any part of the wall, upon the neglect of the 
 
 ' General Term Superior Court, May, 1860, 5 Bosworth, 691. 
 10 
 
146 IN.JUNCTION. [§ 219. 
 
 plaintiff to do so. He was taking measures to do so by carrying 
 out the party wall, and the complaint was to restrain him from 
 building upon the plaintiffs' land. 
 
 Justice "Woodruff, delivering the opinion of the court (after 
 stating views upon other points), said : " We are of opinion that, 
 as the case now appears, the defendant should be temporarily re- 
 strained from interfering with the stoop of the plaintiffs' house, or 
 building upon their land." 
 
 " "We do not think it clear that the plaintiffs were bound to 
 extend the party wall further towards the street than they have 
 done, or that the agreement, construed in the light of extrinsic 
 facts, contemplated any other party wall than the plaintiffs have 
 in fact erected ; and if it is not clear that the defendant is enti- 
 tled to have the wall erected where he now proposes to erect it ; 
 then, until the rights of the parties in this respect can be ascer- 
 tained and settled by a full investigation, on a trial, all things 
 should continue as they now are ; and for this reason, that it is 
 clear, that if the defendant be not so entitled, his cutting away of 
 the plaintiffs' stoop, and building on their land, will do them a 
 serious and permanent injury." 
 
 " It is true, that the general rule is, that in cases of doubt, an 
 injunction should not be granted ; that is, the plaintiffs should 
 make a clear case ; but this rule is not without qualification, and 
 BO better illustration is necessary than the present case affords. 
 The plaintiffs are the legal owners of the land upon which the 
 defendant threatens to build. They are in possession, and have 
 occupied the ground by a permanent erection. This building 
 upon their ground will da them a permanent injury. As the de- 
 fendant's right is doubtful, he should not be permitted to go on 
 until that right is settled. He can only lose the temporary use 
 of his unimproved lot, and for this delay he can be fully compen- 
 sated. The plaintiffs are in danger of a permanent injury to their 
 building." 
 
 Lord Cottenham, in Hilton vs. the Earl of Granville (1 Craig 
 & Phillips, 283-297), after weighing and balancing several con- 
 siderations upon the facts of the case, says : " I^ow, by withhold- 
 ing the injunction, I may expose the plaintiff, not only to damage, 
 but to an injury and a wrong; by granting it, on the other 
 side, I am exposing the defendant to what, in the event of my 
 
§ 219.] INJTTNOTIOIT. 147 
 
 turning out to he mistaken in the view I take of the rights of the 
 parties, will be an irreparable injury. The plaintiff's injury, if 
 he sustains it, and ought not to have sustained it, will be, to a 
 great extent, at least, capable of reparation ; it is a mere question 
 of the value of the property, which may be compensated ; whereas, 
 by no possibility can the injury done to the lord be compensated, 
 if he is prevented for a considerable length of time from exercis- 
 ing a right which, in a certain event, may turn out to be his, to 
 the full extent to which he claims it." 
 
 Analysis of the section. 
 
 The first subdivision of this section contains two branches. 
 The first refers to an injunction at the commencement of the 
 action. 
 
 " When it appears by the complaint that the plaintiff is enti- 
 tled to the relief demanded, and such relief, or any part thereof, 
 consists in restraining the commission of an act," &c. 
 
 This provision covers the case of a complaint the sole object of 
 which is the obtaining a perpetual injunction against the commis- 
 sion or continuance of some act, where no other interposition or 
 judgment of the court is asked for. It covers also the case of 
 such a perpetual injunction being but a portion of the relief or 
 remedy sought — ^being connected with, or ancillary to, something 
 else demanded. 
 
 The second branch of this subdivision contemplates a case of 
 an existing action, the object of which is to obtain some equitable 
 relief by a judgment, and which judgment might be rendered- 
 ineffectual by the act sought to be restrained. It undoubtedly 
 implies that the injunction need not have been originally sought 
 in the complaint. The ground for it may have arisen subse- 
 quently. 
 
 The resemblance of this provision to the 82d section of the act 
 of 17-18 Victoria, before noticed, deserves attention ; and the case 
 of Jessel vs. Chaplin & others (37 En. L. & Eq. Eep. 472), is a valu- 
 able illustration of the principle of that statute. The action was 
 one for the obstruction of ancient lights, and the declaration con- 
 tained a couiit framed under the statute for an injunction. After 
 verdict for the plaintiff, he obtained a rule that the defendants 
 
148 INJUNCTION. [§ 219. 
 
 show cause " why an injunction should not issue to restrain them 
 from continuing the wrongful acts complained of in the action, 
 and from committing any injury of the like kind relating to the 
 property and rights of the plaintiff mentioned in the declaration ; 
 and from erecting, keeping erected, and continuing the erection 
 of so much of the wall and buildings as is opposite to the west 
 side of the messuage and premises of the plaintiff, described in the 
 declaration, and known as the Bull Inn, &c., so or in such man- 
 ner as to darken or obstruct any of the ancient lights or windows 
 of the said messuage or premises, and from erecting any other 
 building, or doing any other act, whereby the said light and air 
 coming to and entering his said messuage and premises by means 
 of the said windows may be obstructed, or such messuage and 
 premises be in any way darkened, and from the repetition or con- 
 tinuance of any act whereby an injury may happen to the plain- 
 tiff." 
 
 It was admitted that the order should be made so far as to 
 prohibit the going on with the work ; but with respect to the por- 
 tion which was directed against keeping up work already done, 
 it was equivalent to a direction to pull down, and as such, prop- 
 erly the subject of a writ of mandamus. It was urged, on the 
 other side, that mandatory injunctions were well known in the 
 Court of Chancery.' The rule was made absolute, as prayed for, 
 with the addition, that the writ should lie in the office till Michael- 
 mas Term, the defendants undertaking to pull down as much of 
 the wall and building as should be sufficient to restore to the 
 plaintiff the full enjoyment of the light and air he had possessed 
 previously, and to do the same to the satisfaction of a surveyor, 
 to be agreed on, or nominated by one of the judges of the court. 
 Prayer for injunction. — It has been held in several cases, that 
 the complaint should contain a prayer for an injunction; and 
 where the injunction is sought for under the first branch of the 
 first subdivision of section 219, it seems that this must be the 
 ' rule. Section 142 prescribes that the complaint must contain a 
 demand of the relief to which the plaintiff considers himself enti- 
 tled. But under the second branch of the subdivision, it cannot 
 be necessary. Indeed, that contemplates that a case may arise 
 
 ' See post, Tit. Mandatory iDJunctions. 
 
§ 219.] INJUNCTION. 149 
 
 for the injunction, after the litigation has commenced, and down 
 to judgment, even if it does not, as Justice Hand suggests, involve 
 the position that the necessity for an injunction must arise during 
 the litigation. (Hovey vs. McOrea, 4 Howard's Pr. Eep. 31 ; 
 Vincent vs. Eing, 13 ibid., 239.) 
 
 Cases for an injunction. 
 
 The subject of the cases in which an injunction can be allowed, 
 — cases pronounced " almost infinite in their nature and circum- 
 stances," ' — must properly be treated under this first subdivision 
 of the section. The second subdivision, as before noticed, relates 
 to a peculiar class of actions, and a particular subject. 
 
 After considerable reflection as to the arrangement of the 
 subject, I have adopted the following classification. It distributes 
 the -cases under several general heads, which admit of many sub- 
 divisions, and pursues something of a system. 
 
 The general heads are — 
 I. Cases relating to real property. 
 II. Cases relating to personal property. 
 
 III. Cases relating to the productions of mind or art. 
 
 IV. In respect to parties in peculiar characters or relations. 
 V. The restraint of legal proceedings. 
 
 In reference to the two first heads, I follow the definition of 
 the Code, by which real property comprises lands, tenements, 
 and hereditaments ; and personal property embraces money, 
 goods, chattels, things in action, and evidences of debt. 
 
 It is true, that the two last classes would fall strictly under 
 one or other of the preceding heads ; but there are some points 
 of law so peculiar to them, as to make a separation expedient. 
 
 I. The first head, that in relation to real property, is subdi- 
 vided as follows : 
 
 1. Cases of waste. ' 
 
 2. Fixtures. 
 
 3. Trespass. 
 
 4. Nuisances. 
 
 ' Justice Story. 
 
150 INJUNCTION. [§ 219. 
 
 5. Privileges and easements connected with land. 
 
 [a] Light and air. 
 
 [b] Lateral Support of land. 
 [o] Support by subjacent land. 
 
 [d] Party walls. 
 
 [e] Dedication. 
 
 6. Water privileges and rights to water. 
 
 [a] Surface water. 
 
 [b] Subterranean water. 
 
 [c] Falling water. 
 
 [d] Litoral rights on navigable streanas. 
 [b] Litoral rights on innavigable streams. 
 
 [f] Ferries. 
 
 [g] Agreements; acquiescence. 
 [h] Interference by injunction. 
 
 7. Covenants relating to real property. 
 
 [a] As to the mode of using land. 
 
 [b] Affirmative and negative covenants. 
 
 [c] Building covenants. 
 
 [d] Penalty and liquidated damages. 
 
 8. Sale of land. 
 
 II. Injunctions relating to personal property are thus subdi- 
 vided: 
 
 1. Transfer of negotiable and other instruments. 
 
 2. Transfer of stocks. 
 
 3. Sailing of a vessel. 
 
 4. Contested probate. 
 
 5. Specific chattels. 
 
 6. In aid of an action to recover personal property. 
 
 III. Kelating to productions of mind or art. 
 
 1. Patents. 
 
 2. Copyrights. 
 
 3. Piracy of unpublished manuscripts. 
 
 4. Publication of letters. 
 
 5. Public lectures. 
 
 6. Secrets of trade. 
 
 7. Trade marks. 
 
 8. Miscellaneous. 
 
§ 219.] INJUNCTION. 151 
 
 [aJ Editor and publisher. 
 [b] Libelous publications. 
 [o] Immorality of works. 
 
 IV. In respect to parties in peculiar relations. 
 
 1. Partners. 
 
 2. Corporations. 
 
 3. Public officers. 
 
 4. Eeceivers. 
 
 5. Executors, assignees, &e. 
 
 6. Married women. 
 
 7. Attorneys and counsel, 
 
 V. Kestraint of legal proceedings. 
 
 1. General observations as to the effect of the Code, 
 
 2. Proceedings in courts of this Stata 
 
 3. Other actions in the same court. 
 
 4. Proceedings in foreign courts. 
 
 5. Eeceivers and other officers. 
 
 6. Statutory foreclosure of mortgages. 
 
 7. Summary proceedings by a landlord, under the statute 
 
 of New York. • 
 
 8. Cancellation of instruments. 
 
 9. Administration of assets or trust funds, 
 
 I. 1. Waste. — "The ancient remedies for waste by writ of 
 estrepeement, and writ of waste at common law, are practically 
 obsolete, and the modern practice in England, as well as in this 
 country, is to resort to the prompt and efficacious remedy of an 
 injunction bill to stop the commission of waste, when the injury 
 would be irreparable ; or by a special action on the case in the 
 nature of waste, to recover damages." ' 
 
 The 450th section of the Code abolishes the action of waste, 
 as the Revised Statutes of 1830 (2 E. S. 334, § 5), in effect, abol- 
 ished the writ as a real action. The Code directs that wrongs 
 heretofore remediable by action of waste, are subjects of action 
 as other wrongs; in which action there may be judgment for 
 damages, forfeiture of the estate of the party offending, ajid evic- 
 tion from the premises. 
 
 ■ Kent's Comm. vol. 4, p. 'I'J. A fall statement of the ancient proceedings may be 
 found in Jefferson vs. The Bishop of Durham, 1 Bos. & Pull. 120. 
 
152 INJUNCTION. [§ 219. 
 
 By section 451, the provisions of the Kevised St'atutes relating 
 to the action of waste shall apply to an action for waste brought 
 under this act, without regard to the form of the action, as far as 
 the same can be so applied. 
 
 Action by whom. — The parties entitled to bring an action for 
 waste done, are: 
 
 (1.) A. remainder man, or reversioner. 
 
 The action of waste always could be brought by one who had 
 the next intermediate estate of inheritance. 
 
 But if there was an intermediate estate for life between the 
 lessee for life and the remainder man or reversioner in fee, it did 
 not lie at law. Yet chancery interposed in such a case ; ' and by 
 the Revised Statutes of 1830 (vol. 1, p. 750, § 8), any one seized in 
 remainder or reversion may have an action of waste or trespass 
 for an injury to the inheritance, notwithstanding any intervening 
 estate for life or years. 
 
 A mesne remainder man for life may obtain an injunction, 
 although he could not support an action at law. 
 
 In Perot vs. Perot (3 Atkins, 94), the first tenant for life cut 
 down timber, and the second tenant for life brought his bill for 
 an injunction which was allowed. 
 
 (2.) A landlord may, of course, sustain the action, and have 
 the order for an injunction, unless restricted by express covenant. 
 
 Flamang's ease, stated by Lord Eldon in Hanson vs. Gardiner 
 (7 Vesey, 308), is the leading authority. There was a demise of 
 Close A to a tenant for life, the lessor being landlord of an ad- 
 joining Close B. The tenant dug a mine in the former close, and 
 worked by means of it into the other close. After hesitation. 
 Lord Thurlow allowed the injunction as to working in either 
 close. 
 
 A ground landlord may support the action against an under 
 lessee. 
 
 In Farrant vs. Lowell (Ambler, 105 ; 3 Atkyns, 723), a bill 
 was brought by a ground landlord, to stay waste in an under 
 lessee, who held by leave from the original lessee. An injunc- 
 tion was granted by Lord Hardwicke. 
 
 (3.) Purchasers of interests in land, having an equitable title, 
 
 ' Mosely, 554; Tracy w. Tracy, 1 Vernou, 23; Eden on Injunctions, XVl, and 
 note. 
 
§ 219.] INJUNCTION. 153 
 
 at least if put in possession, may obtain the writ. In Norway vs. 
 Eowe (19 Vesey, 155), Lord Eldon said : " If the plaintiff has no 
 legal title, but a contract authorizing him to call upon the court 
 to clothe his possession with the legal title, and the answer admits 
 the contract, an injunction will be granted; and the question 
 then is, not whether affidavits are to be read to support the 
 answer, but whether upon the admission of the equitable title, 
 the court will, notwithstanding what is stated to oust the right, 
 continue the subject as it was, until the truth of that by which 
 the defendant attempts to get rid of the contract he admits, shall 
 be tried." See also Crockford vs. Alexander (15 Yesey, 338). 
 
 (4.) Trustees. 
 
 The reasoning of Lord Hardwicke, in Garth vs. Cotton (1 
 Dickens, 183), in relation to Trustees to preserve contingent re- 
 mainders, is applicable to all Trustees in whom the legal estate 
 is vested. That is sufficient to enable them to sustain a bill for 
 the protection of any thing that belonged to the inheritance, tim- 
 ber, mines, &c. 
 
 (5.) Tenants in common and joint tenants and Parceners. 
 
 Although by the statute of 13 Ed. I., cap. 22, reenacted in 
 our statute of 30th January, 1787, and continued in the subse- 
 quent. Revisions, an action of waste lieth, " where some or one of 
 tenants in common do waste against the mind of the other," yet 
 the writ of injunction appears to have been sparingly and reluct- 
 antly allowed. 
 
 The authorities down to Twort vs. Twort (16 Yesey, 132), are 
 collected in Eden on Injunctions, p. 123. In SiSallman vs. On- 
 ions (3 Br. Ch. Ca. 621), and in Hole vs. Thomas (7 Yesey, 589), 
 sucb an injunction was granted. In Hawley vs. Clowes (2 John. 
 Ch. Rep. 122), the bill prayed for the partition of lands, and for 
 an injunction to stay waste in cutting down and carrying away 
 the timber. The chancellor said: "The case of Smallman vs. 
 Onions (3 Br. Ch. Rep. 621) admitted the authority of the court 
 to grant the writ between tenants in common in special cases, as 
 where the defendant was sworn to be insolvent ; and Lord Eldon, 
 in the subsequent cases of Hole vs. Thomas (7 Yesey, 682), and of 
 Twort vs. Twort (16 Yesey, 128), admitted the propriety and ne- 
 cessity of this power in the court, between tenants in common, 
 
154 INJUNCJTIOH. [§ 219. 
 
 where tlie waste was destructive of the estate, and not within the 
 usual and legitimate exercise of enjoyment." 
 
 By the Eevised Statutes of 1830 (2 E. S. 335, § 6), if the ac- 
 tion be brought by a joint tenant or tenant in common against 
 his co-tenant, the plaintiff, if he recover, may at his election take 
 judgment for the treble damages, or have partition of the prem- 
 ises with a deduction of the damages from the share of the de- 
 fendant. Section 3 gives the right of action in express terms. 
 
 (6.) Heir at lam. 
 
 The statute 2 Ed. I., St. 2, gave the writ of waste to every 
 heir in whose ward soever he or she be, and whether in ward or 
 not, or of full age or within age, for waste or destruction in lands 
 and tenements, of his or her inheritance, as well in the time of 
 the ancestor, as at any other time after the inheritance descended. 
 This statute has been made part of our own statute law from 1787 
 to this time.' 
 
 (7.) Infant en venirre. 
 
 It has been ruled that a bill to restrain waste may be filed on 
 behalf of an infant en ventre sa mere!' 
 
 (8.) A mortgagee, legal or equitable, may have the writ of 
 injunction. (Watson vs. Hunter, 5 John. Ch. Rep. 169, and cases 
 under title Mortgagor, post.) 
 
 (9.) A grantee of tenant for life may have the injunction.' 
 
 Action against whom. — By the Eevised Statutes of ISTew York 
 (2 E. S. 1830, 334), it is declared who are liable to an action for 
 waste — viz. : a guardian, a tenant by the curtesy, a tenant in dower, 
 one for a term 5f life or years, or the assigns of any such tenant. 
 
 (1.) A guardian. 
 
 By the common law, a guardian in chivalry was punishable 
 for waste.* Statutes extended this liability to other guardians. 
 He forfeited his wardship by the provisions of the great charter. 
 Our own statutes, making a guardian generally liable, are of an 
 early date.' 
 
 (2.) A tenant by the curtesy. 
 
 ' 2 E. S. 334, § 4. 
 
 ^ Lutterel's case, cited Free, in ch. 60, and authorities in Eden on Injunctions, 123. 
 
 " Kane vs. Vanderburg, 1 John. Ch. Rep. 11. 
 
 ' Black. Com. 283. 
 
 ' Act of January 30, ITS'? ; 1 B. L. 1813 ; 2 E. S. 1830, 334. 
 
I 219.] INJUNCTION. 155 
 
 It was a subject of doubt whether, by the common law, the 
 writ of waste lay against the tenant by the curtesy.' The statute 
 of Gloucester, 6 Ed. I., c. 5, removed the difficulty, if it existed ; 
 and the statutes of our State have followed it. 
 
 (3.) A tenant in dower was always subject to the action. The 
 statutes recognize the liability. 
 
 (4.) The better opinion seems to be that tenants for life and 
 for years were exempt at common law, from the action, and were 
 made liable by the statutes of Marlbridge and Gloucester." 
 
 (5.) Our statute has also provided that the action may be 
 brought against the assignee of any such tenant. Ey this I under- 
 stand the assignee of either tenant by the curtesy, in dower, or for 
 life or a term. 
 
 The case of Bates vs. Schraeder (13 John. Eep. 260) had 
 decided that the action did not lie by the heir against the assignee 
 of the tenant by the curtesy. 
 
 Tenants from year to year. — A tenant from year to year may 
 be restrained from injuring the premises by taking away crops, 
 manure, &c., against the course of husbandry, after receiving no- 
 tice to quit. The tenant from year to year must treat the farm 
 in a husbandlike manner, according to the custom of the country. 
 
 This was ruled in Onslow vs. 16 Yesey, 173. 
 
 In Kane vs. Vanderburg (1 John. Ch. Eep. 11), the defendants 
 were tenants from year to year, and the plaintiff a grantee of 
 tenant for life. The bill stated that actions of ejectment were 
 about to be brought, and that the defendants had been served 
 with notices to quit, and were daily committing great waste, by 
 cutting down wood and timber for sale, to th^ irreparable injury 
 of the land and of the estate of the plaintiff. It was held that it 
 was not essential that there should be an actual lis pendens to 
 justify an injunction. 
 
 Tenant without impeachment of waste, — A tenant for life with- 
 out impeachment of waste may be restrained from affecting the 
 inheritance in an unreasonable and unconscientious manner ; he 
 may not cut timber left standing or planted for shelter or orna- 
 
 ' 2 Black. Com. 283 ; 2 Inst. 801. 
 
 ^ Black Com. 283 ; Eden on Injunctions, 104, examining Beeves' His. C. L., vol. I., 
 p. 186. 
 
156 INJUNCTION. [§ 219. 
 
 ment, although he may cut down ordinary timber, and convert it 
 to his own use. 
 
 In Clement vs. Wheeler (5 Foster's N. H. Eep. 361), the sub- 
 ject was examined. The leading cases were noticed. It was held 
 that a tenant for life without impeachment of waste could do no 
 act to affect the inheritance in an unconscientious and unreason- 
 able manner. In general, he might cut down timber for his own 
 use, but he could not do so maliciously, so as to destroy the estate. 
 Nor can he cut trees planted and left standing for the ornament 
 or shelter of a mansion-house or grounds. 
 
 In Morris vs. Morris (3 De Gex & Jones, 323, 1858), a tenant 
 for life without impeachment of waste pulled down the mansion- 
 house, and built a better one in a more desirable situation. The 
 bulk of the materials of the old house was employed in building 
 the new one, and there was no evidence of any portion of the 
 materials having been sold. A bill to declare that it was equit- 
 able waste, and to have an account of the materials, or compen- 
 sation for the waste, was dismissed. 
 
 In Leeds vs. Amherst (2 Phillips, IIY), the claim was for 
 equitable waste, committed by the ancestor, while in possession 
 as tenant for life. An old family mansion was demolished, and 
 a quantity of timber in the park, admitted to a certain extent to 
 be ornamental timber, was cut down. It was held quite imma- 
 terial to inquire whether that was a judicious arrangement or not 
 for the family, for a tenant for life had no right to alter the na- 
 ture of the property belonging to another person. 
 
 Mortgagor. — If a mortgagor is in possession, an injunction will 
 not be granted to stay his cutting down trees, unless it is made to 
 appear that the security is insufficient without the timber.' 
 
 In Murdock's case (2 Bland's Eep. 461), and in Salmon vs. 
 Claggett (3 Bland's Eep. 126), it was ruled that, where the debt 
 had not become due, the court could interfere to protect the 
 mortgagee against acts of the mortgagor. 
 
 In Brady vs. "Waldron (2 John. Ch. Eep. 148), the bill was 
 
 " Hippesly vs. Spencer, 6 Mad. Kep. 422, and case cited. In Farrant vs. Lowell, 3 
 Atkyna, 723, Lord Hardwioke said : " Where there is only a mortgage for a term of 
 years, and the mortgagor commits waste, the court, on a bill by the mortgagee to 
 stay waste, will grant an injvinction, for they will not suffer a mortgagor to prejudice 
 the incumbrance." 
 
§ 219.] INJUNCTION. 157 
 
 filed by the mortgagee, for an injunction to stay waste by cutting 
 timber on the premises, whereby the land would become an in- 
 sufficient security for the debt. There was no suit pending for a 
 foreclosure. The Chancellor granted the injunction, referring to 
 1 Dickens, 75 ; 3 Atkyns, 210, 237 ; and 3 Yesey, 105. 
 
 There must be some error as to the citation of the last case. 
 The case, 3 Atkyns, 237, is, I presume, Farrant vs. Lowell, 3 
 •Atk. 723. 
 
 The case from Dickens is that of Usborne m. TJsborne. The 
 allegation there was, that the vendee of the mortgagor, who was 
 in possession, had entered upon the premises, and cut down sev- 
 eral trees, and threatened to cut down more ; by means whereof 
 the mortgage security would be lessened. The injunction was 
 allowed. 
 
 Several cases were cited, and among them Gross vs. Chilton, 
 before Lord Thurlow, in which it was also allowed, after doubt 
 and consideration ; the Lord Chancellor thinking it was the mort- 
 gagee's fault in permitting the mortgagor to continue in posses- 
 sion. 
 
 But, under our system, an action of ejectment cannot be sus- 
 tained by the mortgagee. (2 E. S. 312, § 57.) He cannot take 
 possession hostiley. There is, therefore, a very clear reason for 
 granting the injunction when the debt is not due ; but not so 
 clear after it is payable, unless an action to foreclose is instituted. 
 Humphreys vs. Harrison (1 Jacob & Walker, 661), was a case in 
 which a bill of foreclosure had 'been filed ; and the injunction 
 was granted on affidavits of the premises being a scanty security 
 without the timber. 
 
 Li Ensign vs. Colburn (11 Paige, 503), the bill charged the 
 defendants with a fraudulent and unconscientious attempt to 
 strip the mortgaged premises of the timber thereon, which was 
 the principal value of the premises, with the intention of defraud- 
 ing the complainant out of his security, after the mortgagor had 
 been decreed to be a bankrupt, and when he had no longer any 
 hope of paying the mortgage debt, nor had any interest in the mort- 
 gaged premises. " "Without intending, therefore, to question the 
 rights of a mortgagor to cut timber upon mortgaged premises 
 whenever he can do it without committing waste, and to appro- 
 priate the timber thus cut to his own use, provided it is not done 
 
158 INJUNCTION. [§ 219. 
 
 with a fraudulent intent in reference to tlie mortgagee, I think 
 the injunction in this case ought not to have been dissolved, even 
 so far as the order appealed from dissolved it." 
 
 The injunction was retained even as to timber already cut. 
 
 In King vs. Smith (2 Hare's Eep. 239), the court define to 
 some extent, what shall be deemed a scanty security for the 
 mortgaged debt, so as to justify an injunction to stay waste 
 against a mortgagor in possession. It is not that the property* 
 will scarcely pay the debt, interest, and costs, but that it will not 
 give that entire security, if the timber is taken from it, which the 
 mortgagee contracted for in the original transaction. 
 
 "A mortgagee out of possession is not entitled to an injunc- 
 tion as of course. There must be a special case made. If the se- 
 curity is sufiicient, the court will not grant an injunction ; but 
 what is sufficient security ? No mortgagee, who is well advised, 
 would lend his money unless the mortgaged property was worth 
 one-third more than the amount lent at the time of the mortgage. 
 "Will the cutting of the timber substantially impair the value 
 which was the basis of the contract between the parties at the 
 time it was entered into ? Such is the inquiry." 
 
 Mortgagee in Possession. — In Farrant vs. Lowell (3 Atkyns, 
 723), Lord Hardwicke said : "Where a mortgagee in possession 
 commits waste by cutting down timber, and the money arising 
 from the sale of the timber is not applied in sinking the mort- 
 gage debt, the court, on a bill brought to stay waste, will grant 
 an injunction." 
 
 Subjects of Waste. — Waste is described to be a spoil or de- 
 struction in houses, gardens, trees, or other corporeal heredita- 
 ments. These three are the general heads of waste, viz. : in 
 houses, in timber, and in land.' Our statute points out the sub- 
 jects to be, " houses, gardens, orchards, lands, woods, or of any 
 other thing belonging to the tenements so held." " 
 
 Houses. — The tearing down of buildings, the subject of an 
 unfulfilled contract of sale, or covered by a demise, or to which 
 a party as reversioner, or otherwise, has a title, present or event- 
 ual, is waste. 
 
 Thus, in Pettee vs. The Eastern Counties Railroad Comp. (S 
 
 ' 2 Black. Comm. 284. " 2 K. S. 18S0, p. 334. 
 
§ 219.] INJUNCTION. 159 
 
 Simons, 483), there was a contract of sale of a house and lot, the 
 price to be settled by arbitration. The award had not been made. 
 The purchaser was proceeding to pull down the building, and was 
 enjoined. 
 
 In The Mayor of London vs. Hedger (18 Yesey, 355), there 
 was a covenant to repair by a lessee, and at the end of the term 
 to surrender the buildings in good condition, not only those in 
 existence at the demise, but such as the lessee should erect. He 
 was, on the eve of the expiration of the lease, tearing down the 
 buildings and carrying off the materials. The Master of the 
 Eolls thought that the covenant in the lease did not preclude the 
 remedy by injunction. 
 
 In Winship vs. Pitts (3 Paige, 259), the chancellor said : 
 " Whatever doubts may formerly have been entertained upon the 
 subject, I have no hesitation in saying, that by the law of this 
 State, as now understood, it is not waste for the tenant to erect 
 a new edifice upon the demised premises, provided it can be 
 done without destrojdng or materially injuring the buildings or 
 other improvements already existing thereon. I admit he has no 
 right to pull down valuable buildings, or to make improvements 
 or alterations which will materially and permanently change the 
 nature of the property, so as' to render it impossible for him to 
 restore the same premises substantially at the expiration of the 
 term ; but to apply the ancient doctrine of waste to modern ten- 
 ancies, even for short terms, would, in some of our cities and 
 villages, put an entire stop to the progress of improvement, and 
 would deprive the tenant of those benefits which both parties 
 contemplated at the time of the demise, without any possible ad- 
 vantage to the owner of the reversion. Upon the principle of 
 the modern cases, it cannot be waste to make new erections upon 
 the demised premises, which may be removed at the end of the 
 term without much inconvenience, leaving the property in the 
 same situation it was in at the commencement of the tenancy, 
 and the materials of which new buildings, if left on the prem- 
 ises, would more than compensate the owner of the reversion for 
 the expense of their removal." 
 
 Alteration of buildings. — In several cases the material change 
 of a building demised, or the conversion of it into one to be used 
 for different purposes, will be waste, and the intended alteration 
 may be restrained. 
 
160 INJUNCTION. [§ 219. 
 
 In Green"ys. Cole (2 Saunders, 252), it was held that the con- 
 version of a corn mill into a fulling mill, or a brew house into 
 any other office, was waste. 
 
 In Bridges vs. Kilburn (cited 5 Vesey, 689), Mr. Justice Bul- 
 ler considered that the change of a logwood mill into a cotton 
 mill was waste. 
 
 In Bannister vs. Sadler (14 Yesey, 526), a private house had 
 been leased, and the attempt was made to turn it into a shop for 
 the business of a coach-maker. There were several material con- 
 siderations in the case to support an injunction ; but in relation 
 to the point now discussed, Lord Eldon said : " If the effect of the 
 change will be the entire alteration of the nature of the proper- 
 ty, I am not prepared to say that the court will not interfere. 
 The plaintiffs had represented they wanted the property as a 
 private house. The altering it into a coach-maker's shop, as at- 
 tempted, would require the alteration from top to bottom." The 
 injunction was maintained. 
 
 In Douglass vs. Wiggins (1 John. Ch. Hep. 435), the bill was 
 to stay waste. It stated a lease of a dwelling-house in Pearl 
 street for four years ; that the lease provided that the lessees, the 
 defendants, were to lay out three hundred dollars in improve- 
 ments, to be approved of by the lessors ; that against their con- 
 sent, the defendants were converting the whole dwelling into a 
 store, were prostrating partitions, cutting through ceilings and 
 floors, and fixing a wheel and tackle in the third story to raise 
 heavy packages, which would be of great and permanent injury 
 to the building. An injunction was allowed. 
 
 Woods and timber. — Much learning will be found in the Eng- 
 lish books as to the kinds of woods which may or may not be cut 
 down for the purposes of repairs, or household use.' The au- 
 thorities in our own, and in some of the sister States, will show a 
 considerable difference in the law upon this head, and render 
 unnecessary a detail of the English distinctions. 
 
 In "Watson vs. Hunter (5 John. Ch. Eep. 169), the defendants 
 were lessees for years, and the plaintiffs were grantees (by way of 
 security) of the lessor. The bill alleged that the principal value 
 
 ' Eden on Injunctions, 105-1 07; Drewry on Injunctions, 142-162, vol. 20, Law 
 Library. 
 
§ 219.] nrjimcTioN. 161 
 
 of the land was in the pine timber, and that the premises were a 
 slender security for the demand ; that the defendants had cut 
 down, and were cutting down, large quantities of timber. The 
 prayer was for an injunction against cutting, and against remov- 
 ing that already cut down. 
 
 The chancellor stated the general rule to be, that an injunction 
 was only to restrain future waste, as an action of trover would lie 
 for what had been cut. Perhaps, where the mischief would be 
 irreparable, it might be necessary to interfere, and prevent the 
 removal of the timber already cut. This was not to be done in 
 ordinary cases. The injunction was confined to timber standing 
 at the time of the service of process. 
 
 In Jackson vs. Brownson (7 John. Eep. 227), it was held, that 
 the lessee of wild lands might fell the timber, so as to fit the land 
 for cultivation ; but not so as to permanently injure the inherit- 
 ance, as by cutting down all the wood. 
 
 There was in this case a covenant by the lessee, that he would 
 not commit waste. Yan iN'ess, J., said : " The covenant must be 
 construed with reference to the state of the property at the time 
 of the demise. The lessee undoubtedly had a right to fell part of 
 the timber, so as to fit the land for cultivation, but it does not fol- 
 low that he may with impunity destroy all the timber, and 
 thereby essentially and permanently diminish the value of the in- 
 heritance. Good sense and sound policy, as well as the rules of 
 husbandry, require that the lessee should preserve so much of the 
 timber, as is necessary to keep the fences and other erections upon 
 the farm in good repair." 
 
 In Kidd vs. Dennison (6 Barbour's Eep. 9), the bill was to re- 
 strain waste by cutting timber, and the law was fully discussed 
 by Mr. Justice Paige. The English doctrine of waste, as under- 
 stood in England, was not applicable to a new and unsettled 
 country. The whole farm, when originally leased, was in a wild 
 and uncultivated state, with the exception of a few acres. The 
 parties must therefore have intended that the lessee should be at 
 liberty to fell part of the timber to fit the land for cultivation. 
 But this right did not authorize the lessee to fell all the timber. 
 The position of Van Ness, Justice, in Jackson vs. Mounson, is 
 stated and adopted : " To what extent timber may be cut, before 
 the tenant is guilty of waste, must, in an action at law, be left to 
 11 
 
162 INJUNCTION. [§ 219. 
 
 the discretion of a jury. There could be no right to fell timber 
 merely for the purposes of sale and profit, without any reference 
 to the preparation of the land for cultivation. But when cut for 
 that purpose, a sale after severance was incident to the right. 
 The consideration, whether the property was in effect benefited 
 by the acts, was rejected by the court. 
 
 In Eodgers vs. Kodgers (11 Barbour's Eep. 596), it was held, 
 that a reversioner could sustain an action against tenant for life 
 and another, to recover damagesfor wrongfully cutting, removing, 
 and converting wood, and also for drawing off the wood which 
 had been cut, and converting it. All the parties must, however, 
 have participated in both acts. A case, the leading object of 
 which is to restrain future waste by an injunction, is one of purely 
 equitable cognizance; and, as incidental to this jurisdiction, the 
 court, when waste has been committed, will, to prevent a multi- 
 plicity of suits, direct an account and satisfaction for past injuries. 
 The injunction may be granted against any one who colludes with 
 the tenant. 
 
 In Livingston vs. Livingston (26 Wendell, 122), it was decided 
 that it was waste for a tenant to cut down and use wood on the 
 demised premises to burn brick for sale, when he had covenanted 
 not to cut down or destroy more wood or timber than should be 
 actually used and employed on the farm, and that he would not 
 make any manner of waste. The President of the Senate said : 
 " If it were really advantageous and desirable to reduce this 
 woodland into cultivation, its being done by the tenant without 
 the consent of the landlord, would injure the latter in just so far 
 as the value of the timber exceeded the expense of cutting it down 
 and clearing the land. But injury is not the test of waste ; but 
 the disherison of him in remainder or reversion. The tenant, in 
 this case, has destroyed timber which he cannot reproduce, and 
 has carried off the demised premises soil which he cannot restore. 
 This is disherison. The estate in remainder or reversion is 
 wasted." 
 
 The court, in Harder vs. Harder (26 Barbour, 409), say : " It 
 is very clear that the owner of the life estate may cut down wood 
 and timber for the necessary reparation of the fences, buildings, 
 and erections upon the farm, and for fuel ; and it is held, that he 
 may clear so much of the .land from wood as shall be neces- 
 
§ 219.] INJUNCTION. 163 
 
 sary or judicious to adapt it for cultivation or other agricultural 
 purposes." (2 E. S. 336, '7 ; 6 Barbour, 9 ; 2 Hill, 157.) 
 
 In Spear vs. Cutter (5 Barbour's Eep. 486), the bill was to 
 prcTent future waste, and also to prevent the removal of the tim- 
 ber already cut, and for an account of waste already committed. 
 The court, to avoid multiplicity of suits, allowed an account and 
 satisfaction for what had been done, and held, that where the 
 mischief to the plaintiff would be irreparable, it would prevent 
 the removal of the timber already cut down. 
 
 By the Eevised Statutes (2 E. S. 336, § 18), where an action 
 for the^ recovery of premises has been commenced, the Supreme 
 Court may make an order restraining the defendant from com- 
 mitting waste. 
 
 In McGregor vs. Brown (10 N. T. Eep. 114, 6 Selden), the 
 law is thus stated : When the law defines waste to be whatever 
 does a lasting damage to the freehold or inheritance, it does not 
 mean that it is to be left to a jury to determine, according to the 
 opinions of witnesses, whether the act complained of causes such 
 damage. Certain acts are, in contemplation of law, per se inju- 
 rious to the inheritance, and the only subject of inquiry for the 
 jury is, whether such acts have been committed. By the law of 
 England it is considered waste to cut timber. It is also con- 
 sidered waste to convert woodland into meadow, or pasture, or 
 arable land. These rules have been modified to some extent in 
 this State in reference to wild and uncleared lands leased for ag- 
 ricultural purposes. (7 Johnson, 227 ; 6 Barbour, 9.) The cut- 
 ting of trees by a tenant for years, except under special circum- 
 stances, is an act of waste. The opinion of witnesses, that the 
 acts were not injurious to the inheritance, are not admissible. 
 
 In Shipley vs. Eitter (7 Maryland Eep. JSTo. 8, 1855), it was ruled, 
 " that injunctions might be issued to restrain the destruction of 
 timber, ornamental, and fruit trees, on the ground of such being 
 cases of great and irreparable mischief, and going to the destruc- 
 tion of the estate in the character in which it is enjoyed. The 
 land was occupied as a dwelling plantation. A portion of the 
 estate was in timber, valuable as well as ornamental ; the defend- 
 ants had converted part of the timber lands into pasture and 
 arable land, and were continuing to cut the timber, and convert 
 the land, destroying the forest trees that sheltered the dwelling 
 
164: INJUNCTION. [§ 219. 
 
 in winter, and gave shade in summer. If the trees had been 
 planted for shade or ornament, the question would be too clear 
 for argument. There was no difference in principle wlien they 
 served those purposes as they stood. The selection of the place 
 for building may have been guided by these circumstances." 
 
 See also Clement vs. Wheeler (5 N. PI. Eep. 361), cited ante, 
 p. 156. 
 
 In Morris vs. Morris (15 Simons' Eep. 505), although the man- 
 sion-house, to which ornamental timber was originally appurte- 
 nant, had been pulled down, yet the tenant for life, even without 
 impeachment of waste, could be enjoined from cutting down the 
 trees. 
 
 This was afeo ruled in "Wellesly vs. "Wellesly, (6 Simons' Eep. 
 49Y), where trustees were empoAvered to grant leases, and, at the 
 request of the tenant for life, to pull down the mansion-house 
 and sell the materials to pay the incumbrances ; which had been 
 done. The tenant for life, though unimpeachable for waste, was 
 restrained from cutting down the ornamental timber in the park 
 and grounds. 
 
 But in Michlethwaite vs. Michlethwaite (1 De Gex & Jones' 
 Eep. 504), it was considered that ornamental trees were in 
 general incident to a mansion-house, and if an owner had left it 
 and torn it down with an intention not to return, a tenant with- 
 out impeachment, could not be restrained from cutting down the 
 ornamental trees. 
 
 Land. — ^The English law is very strict as to the rule which 
 prevents a tenant from changing the use or nature of the land. 
 The conversion of arable into wood, or of meadow into arable, pro- 
 vided it be ancient pasture, is waste; and injunctions have in all 
 times been granted to prevent it. Converting a meadow into an 
 orchard, or ploughing up a hop ground and sowing it with grain 
 is waste.' 
 
 " At law tenants cannot change the nature of the thing de- 
 mised. Changing meadows into arable land ; converting one 
 species of edifice into another, is waste. Although the value of 
 the premises be improved by the alteration, the landlord "has a 
 
 '■Eden on Injunctions, p. 107, and cases in the notes; Drewry on Injunctions, 154, 
 and cases. 
 
§ 219.] INJUNCTION. 165 
 
 right, if he pleases, to keep the premises in the same state as he 
 demised them. (Elliott vs. Wathing, 1 Jones' Exch. Eep. 308 ; 
 Hunt vs. Browne, 1 Sausse & Scully, 178.) 
 
 The observations of Lord Langdale in the case of the Duke of 
 St. Albans vs. Skipworth (8 Beavan, 354), though applied to the 
 case of a parson's glebe, are valuable for the general principles 
 stated, and would be pertinent to eases in our courts. " By the 
 law, as admitted between lessor and lessee, or between tenant for 
 life and remainder man, very valuable improvements in agricul- 
 ture may be prevented, during the temporary possession of a 
 tenant, or a succession of tenants for years or for life. The time 
 however comes when the fetters imposed by the contract, or re- 
 lation between the parties, may be released : but if you apply the 
 same law to the case of a parson's glebe, the course of husbandry 
 and cultivation must remain the same in all time. What is once 
 arable or pasture must always continue so, and no rector must 
 employ any part of his glebe in any other manner than as he has 
 found it employed, unless he can prove that it has been otherwise 
 employed within some limited antecedent time." 
 
 The rule in our own courts probably is, that cultivation may 
 be pursued in that manner which custom sanctions as good hus- 
 bandry. (Sarles vs. Sarles, 3 Sandf. Ch. Kep. 601.) 
 
 Orchards and gardens. — The statute has enumerated orchards 
 and gardens, as the subjects of spoil or waste. (2 K. S. 334, § 1.) 
 
 It was ancient law that the cutting down of fruit trees in an 
 orchard was waste.' This is the case even when planted by the 
 tenant himself." 
 
 In Watherell vs. Howells (1 Campbell's Eep. 227), it was held 
 to be waste for the tenant to plough up strawberry beds which 
 had been planted by a former tenant. 
 
 Mines. — The general rule is that a tenant may not dig in quar- 
 ries for stone, or in mines of metal, or coal, unless they were open 
 at the time of the demise. Of course this rule is governed by 
 any express provision, and to the extent of such provision.' 
 
 Even if there be a demise of lands with the mines, the lessee 
 may not open new mines, if there be any already open. If there 
 are none, however, he may open and work new ones. (Sanders' 
 Case, 6 Coke, 12.) 
 
 ' Coke Litt. 63 a. =2 RoU's Abr. S11. ' Ibid. 
 
166 INJUNCTION. [§ 219. 
 
 Where tliere was a deed of settlement of lands, mines, waters, 
 trees, &c., it was held that it was intended that the whole of the 
 inheritance should pass, and tenant for life nnder it was restrained 
 from opening mines. ("Whitfield vs. ISTewill, 2 P. Wms. 240.) 
 
 In Clavering vs. Clavering (2 P. Wms. 388), it was held that 
 & tenant for life could open new shafts or pits to pursue and work 
 the same vein of coal before opened. An injunction was refused. 
 To grant it might be the ruin of the colliery. 
 
 In Gray vs. the Duke of Northumberland (13 Yesey, 236, and 
 17 ibid. 281), the party was making preparations to open a coal 
 mine, and was restrained, the court stating that the plaintiff must 
 be put under considerable pressure to obtain a speedy trial of the 
 right. 
 
 But where mines have been opened, and are in process of 
 being worked, the court very rarely and reluctantly interferes 
 till the title is settled. Any laches on the part of the plaintiff 
 will defeat him. (Birmingham Co. vs. Lloyd, 18 Yesey, 515.) 
 
 The case of Hilton vs. The Earl of Granville (1 Craig & Phil 
 lij)s, 284), is full upon this, as upon other points of the law. The 
 defendant had in his favor a custom established by verdict of a 
 jury, that he could enter upon a copy holder and work mines. 
 The plaintiff, though he must have known for some time, that 
 there was every probability at least that~ the working, if con- 
 tinued, would bring bim in contact with the assertion of the 
 lord's right, and therefore make it necessary for him to apply for 
 protection, made no application until the time when the work- 
 ings had approached so near to his house, that it was quite im- 
 possible to grant an injunction which should continue till the legal 
 right was ascertained, without altogether suspending the lord'^ 
 works. The Lord Chancellor then considered carefully the rela- 
 tive damage and evil which would arise from granting or with- 
 holding the injunction, stating the rule to be, that the object of 
 the interference of the court by interlocutory injunction, between 
 two parties who are at issue upon a legal riglit, is the protection 
 of the property in dispute until the right is ascertained. He 
 refused the injunction, allowing the motion to stand over upon 
 terms calculated to insure a speedy trial of the right at law. 
 
§ 219.] INJUNCTION. 167 
 
 Miscellaneous. 
 
 Heir at law and devisee.— In Jones ^)5. Jones (3 Merivale, 161), 
 it was held that a court of equity had not power to determine 
 the validity of a will of real or personal estate, and the bill in 
 that case was held demurrable. The Master of the Rolls said : 
 " There is a prayer, that in the mean time (that is, I suppose, 
 until the trial of the action or issue), the defendants may be re- 
 strained from committing any spoil, waste, or destruction of the 
 said real estate. No case was cited in which the court has inter- 
 posed at the suit of heir or devisee, to restrain waste by either, 
 while they are litigating their adverse rights in a court of law. 
 One should think the case of a devisee a stronger one than that 
 of the heir, because till the will is set aside, the prima faoie, 
 title is in the devisee. Yet, in Smith vs. Collyer (18 Yesey, 89), 
 an injunction was refused when applied for by the devisee against 
 the heir. I own I cannot see a very good reason why the court 
 which interferes for the preservation of personal property, pend- 
 ing a suit in the Ecclesiastical Court, should not interpose to 
 preserve real property pending a suit concerning the validity of a 
 devise. But as a condition of such interference, the court would 
 certainly expect it to be shown that the party applying was 
 proceeding with all expedition to bring the question to a decis- 
 ion ; whereas here, the plaintiff, filing the bill about two and 
 a half years after the testator's death, does not state that even 
 then any action had been brought, while the acts of waste and 
 devastation are stated to have been committed soon after the tes- 
 tator's death." 
 
 In Davenport 'os. Davenport, cited by Mr. Drewry (Suppl. to 
 Injunctions, p. 29), the Yice Chancellor (Wigram) said : There 
 was no case upon real estate where a party out of possession 
 coming to the court and complaining of a party in possession, 
 and claiming a right to be in possession, has granted an injunc- 
 tion restraining the defendant from using the legal rights claimed 
 by him, until the actual right is declared at law. It was pressed 
 on the part of the plaintiff, first^ that the rule applied to personal 
 property of various kinds of protecting it while the legal right is 
 in a course of determination, ought to be applied equally to the 
 protection of real estate; second, that though the court might 
 refuse an injunction in such a case on an interlocutory applica- 
 
168 INJUNCTION. [§ 219. 
 
 tion, yet that was no reason for allowing a demurrer, because, 
 possibly, at the hearing, ground might exist for an injunction, 
 and the bill ought, therefore, to be retained. The court consid- 
 ered the decision in Jones vs. Jones as applicable in both points, 
 and allowed a demurrer. 
 
 The bill was to restrain the defendant from cutting down or- 
 namental and other timber. 
 
 But, in Fingal vs. Blake (2 Molloy's Eep. 50), Lord Chancellor 
 Hart said : I have long doubted the soundness of the old decis- 
 ions respecting waste. I think the court has jurisdiction to 
 restrain waste by the heir who is disputing the will of real estate. 
 "Where the will is disputed by the heir at law, and he is in pos- 
 session, it requires a strong case to take away the rents from him, 
 whilst the will is disputed ; but in a strong case the court will do 
 it. It will prevent injury to the devisee. I have no doubt the 
 court will readily exercise its power to prevent irreparable injury 
 to the property. It would be absurd to abstain from doing so 
 out of consideration for the heir. 
 
 I. 2. Fixtures, — The rules and distinctions laid down by Lord 
 EUenborough, in Elwes vs. Maw," have been recognized in cases 
 in our own courts, and elsewhere. The right to fixtures arises 
 chiefly between three classes of persons : 1st, between heir and 
 executor, in which case the rule obtains with the greatest rigor in 
 favor of the inheritance, and against the right to disannex ; 2d, 
 between the executor of tenant for life, and the remainder man or 
 reversioner, where the right to remove is considered more favor- 
 ably for the executor; and 3d, between landlord and tenant, 
 where the rule has been the most relaxed. 
 
 1st. Heir and Executor. By the Revised Statutes of 1830 
 (2 K. S. 82, § 6, sub. 4), things annexed to the freehold, or to any 
 building for the purpose of trade or manufacture, and not fixed 
 into the wall of a house, are to be deemed assets, and go to the 
 executor or administrator. 
 
 By section 7, things annexed to the freehold, or to any build- 
 ing, shall not go to the executor, but shall descend with the free- 
 hold, to the heirs or devisees, except such fixtures as are men- 
 tioned in the fourth subdivision of the last section. 
 
 In House vs. House (10 Faige, 158), the chancellor said, 
 
 ' 3 East. 28. 
 
§ 219.] INJUNCTION. 169 
 
 "that previous to the adoption of the Eevised Statutes, there was 
 a distinction supposed to exist in relation to what was to be con- 
 sidered a part of the realty, as between landlord and tenant, and 
 as between the heir at law and personal representative. It was 
 also supposed that an outgoing tenant might be permitted to re- 
 move fixtures of a particular description, placed by him upon 
 the premises for a special purpose, which, as between the heirs at 
 law and the personal representative of the owner of the freehold 
 would have descended to the heir. But the legislature, in adopt- 
 ing the provision here referred to, probably intended to put the 
 executor or administrator on the same footing with a tenant as to 
 the right to fixtures. Such at least was the recommendation of 
 the Kevisers. (3 E. S. 339, 2d edit.) 
 
 " It was impossible, however, to define in a short sentence of 
 three lines, what was to be considered a part of the freehold 
 itself, and what were mere fixtures or things annexed to the free- 
 hold for purposes of trade or manufacture. We must still go 
 back to the common law, and to the decisions of the courts, for 
 the purpose of ascertaining what is a substantial part of the free- 
 hold, and what is a mere fixture or thing annexed to such free- 
 hold. "We must also resort to the same sources of information to 
 ascertain what is to be considered a part of a building, and what 
 is in its nature mere personal property, and only annexed to such 
 building temporarily, for the purpose of trade or manufacture." 
 
 It was held in this case, where water wheels, mill stones, and 
 bolting apparatus of a grist and flouring mill, with other fixtures 
 of the same character, had belonged to the owner of the land and 
 building, that upon his death they went to the heir at law, and 
 not to the executor. Fixtures of this character were essential to 
 the enjoyment of the inheritance ; and, therefore, as much part of 
 the freehold as the building and water power, which with them 
 constitute the mill. 
 
 In Murdock vs. Gifford (18 I^. Y. Eep. 28), the court say : 
 " The cases of heir and executor and of vendor and vendee, in 
 the absence of evidence of specific intention, have always been 
 deemed identical in respect to their rights in a chattel claimed to 
 be a part of the realty. It was so held in 21 Hen. VII., 26, and 
 it has continuously since been so held. (Holmes vs. Tremher, 20 
 John. Eep. 30 ; Miller vs. Plumb, 6 Cowen, 668 ; Farrar vs. Chau- 
 fetete, 5 Denio, 527.") 
 
ITO INJDNOTION. [§ 219. 
 
 The provision of the statute referred to was declared to fur- 
 nish the general rule for all cases and parties. 
 
 House vs. House is cited and approved. The court proceed: 
 " It is obvious that the statute does not mean, that the executor 
 shall take every thing not essential to the support of the walls of 
 a building, but that only such things are spoken of as are not a 
 constituent part of the freehold, or of the artificial structure 
 erected on the land." 
 
 " The case of Lawton vs. Scelmon (1 Hy. Bl. 258), furnishes a 
 criterion by which the character of chattels annexed to the free- 
 hold may be determined." That was a case of salt pans made of 
 hammered iron, riveted together, brought into the salt houses in 
 pieces, and which could be removed in pieces. They were held 
 to belong to the heir. They were accessories necessary to the 
 enjoyment and use of the principal. By removal they would, 
 lose all the value which their adaptation to the inheritance gave 
 them, and become merely old iron. Their value was from their 
 relation to the inheritance. 
 
 " Applying this principle to the case of a factory, the wheel or 
 engine which furnishes the motive power, and all that part of the 
 gearing and machinery which has special relation to the building 
 with which it is connected, would belong to the freebold ; while 
 an independent machine like a loom, which if removed, still re- 
 mains a loom, and can be used as such wherever it is wanted, 
 and power can be applied to it, will retain its character of per- 
 sonalty." 
 
 The looms in this case were in a woolen factory, connected 
 with the motive power by leathern bands, and not otherwise 
 annexed to the building than by screws holding tbem to the floor, 
 whicb kept them steady when working, and which could be re- 
 moved without injury to themselves, or to the building. 
 
 In Ombony vs. Jones (19 N. T. Eep. 234), the lessee of an inn 
 erected a ball room resting upon stone posts slightly imbedded 
 in the soil, and removable without prejudice to the inheritance. 
 It was held that the ball room was within the principle of erec- 
 tions made for purposes of trade, removable by the tenant. 
 
 " There was nothing in the mode of its annexation to the soil, 
 or to the main edifice, which necessarily imparted to it the legal 
 characteristic of immovability. It could be detached and taken 
 away without injury to the reversion. Beyond all doubt it would 
 
§ 219.] INJUNCTION. 171 
 
 be real estate as between vendor and vendee of the land, or be- 
 tween the heir and the executor of the owner. But' the rule pre- 
 vailing in these relations is by no means decisive of the present 
 question." 
 
 Mr. Justice Grover, in his opinion, says : " The rule to be 
 gathered from the cases, I think, is, that a tenant may remove, 
 during his term, all erections made by him for the purposes of 
 trade that can be removed without injury to the land, or some- 
 thing permanently attached thereto. When the foundation on 
 which a building rests is imbedded in the earth, he cannot remove 
 the foundation. When the building rests upon such founda- 
 tion, and is confined by its weight only, he may remove the 
 building." 
 
 In Ford vs. Cobb (20 IST. T. Rep. 311), salt kettles were bought 
 and mortgaged to the seller. They were imbedded in brick 
 arches, but could be removed, without injury to them, by dis- 
 placing a portion of the brick at an inconsiderable expense, and 
 the course of the manufacture required that they should be thus 
 removed and reset annually. It was held that they continued 
 personalty as against a subsequent purchaser of the salt works, 
 who had no notice of the facts other than constructively, from the 
 filing of the chattel mortgage. 
 
 They would have been by the common law realty, to have 
 passed to the grantee of the land, or the heir or devisee of the. 
 owner. It was probable that the Eevised Statutes had not 
 changed this rule. 
 
 Assuming that they would have been parcel of the real estate, 
 yet, as they were originally personal in their nature, and could 
 be detached without material injury to the realty, the agreement 
 of the owner and mortgagee amounted to a continuation of them 
 in their original character. 
 
 Whether the agreement or relation between the parties shall 
 preserve the character of personalty in things so affixed to the 
 freehold, as that, but for such agreement or relation, they would 
 become a part of the realty, depends upon their essential charac- 
 ter, and the mode in which they are annexed ; for example, 
 whether they can be removed without serious damage to the free- 
 hold, or substantially destroying their own qualities and value. 
 
 All the cases upon this branch of the law of fixtures proceed 
 
l'?^2 INJUNCTION. [§ 219. 
 
 upon the idea that erections, which would clearly be part of the 
 realty under ordinary circumstances, are personal chattels as 
 regards the rights of a tenant, who has put them up for the pur- 
 poses of trade or manufacture. If a subject, which would other- 
 wise be real estate, can be made personal by special relations be- 
 tween the parties, it is clear the same parties may effect the same 
 thing by express agreement. Mott vs. PMmore (1 Comstock, 
 564) and Godard vs. Gould (14 Barbour, 662) are cited as exam- 
 ples of this proposition. 
 
 In Eobinson vs. Preswick (3 Edw. Ch. Eep. 246), it was held 
 that, whatever was annexed to the freehold, and would pass as 
 between vendor and vendee, would pass as between mortgagor 
 and mortgagee. When fixtures are included in a mortgage, the 
 mortgagee may have an injunction to prevent their removal 
 which would impair the security. This may be had when the 
 debt is not due, nor any default in payment, and, of course, no 
 proceedings taken to enforce the mortgage. 
 
 I. 3. Trespass. — The doctrine of the court has undergone a 
 marked revolution as to injunctions to restrain trespasses. In the 
 case of Mogg vs. Mogg (2 Dickens, 6Y0), a search was made for 
 precedents in which the court had restrained a trespasser, and 
 none were found. And Lord Eldon, in E^orway vs. Howe (19 
 Vesey, 147), observed, that he did not recollect of an injunction 
 to stay trespass being ever granted, where the fact of the plain- 
 tiff's title to the property was denied by the answer. 
 
 An injunction is not allowed in favor of the owner in posses- 
 sion of land, who has an adequate remedy at law against a mere 
 trespasser. "Where the injury is not irreparable and destructive 
 to the plaintiff's estate, but is susceptible of perfect pecuniary 
 compensation, which the party may obtain in the ordinary com'se 
 of law, an injunction cannot be allowed. 
 
 These propositions, stated in the language of judges, show the 
 general rule, and the nature of the exceptions to it. 
 
 In Stevens vs. Beekman (1 John. Ch. Eep. 318), there was an 
 owner in possession, and trespass by parties claiming under an 
 adverse claimant of title, by cutting down timber, which consti- 
 tuted the chief value of the land. " Lord Eldon," says Chancellor 
 Kent, " only allowed the writ in solitary cases, of a special nature, 
 and where irreparable damage miglit be the consequence if the 
 act continued. It has also been allowed in cases where the tres- 
 
§ 219.] iNJUN-CTiON. 173 
 
 pass lias grown into a nuisance, or where the principle of multi- 
 plicity of suits among numerous claimants was applicable. (6 
 Yesey, 167 ; 7 Vesey, 305 ; 8 Vesey, 89.) There is less necessity 
 for the interference of this court since the statute (1 E. L. 525, 
 now 2 K. S. of 1830, pp. 338 and 693) " makes the cutting down 
 of timber a misdemeanor, punishable by iine and imprisonment, 
 and also gives the party injured treble damages." The motion 
 for an injunction was denied. 
 
 In Livingston vs. Livingston (6 John. Ch. Eep. 497), Chancel- 
 lor Kent stated the rule against granting injunctions in these cases 
 with less rigor, and noticed the tendency of the court in later eases 
 to jjermit it in a large class of trespasses. He cites many cases in 
 which it had been issued. In the principal case it was allowed, 
 where the defendant claimed estovers in the plaintiff's lands. A 
 trial had been had at law, and a decision against him, and another 
 suit was depending, involving the same question. It was just and 
 necessary, to prevent multiplicity of suits, that the further dis- 
 turbance of the freehold should be prevented until the right was 
 settled. 
 
 In Jerome vs. Eoss (7 John. Ch. Eep. 315), the subject was 
 again before the learned Chancellor, and he again reviewed nu- 
 merous cases. He restates and amplifies the rule laid down in 
 Stevens vs. Beekman in all its force : " I do not know a case in 
 which an injunction has been granted to restrain a trespasser, 
 without showing that the property itself was of peculiar value, 
 and could not well admit of due recompense, and would be de- 
 stroyed by repeated acts of trespass. In ordinary cases the dam- 
 ages to be assessed by a jury will be adequate for a check, and for 
 recompense." 
 
 The principle of these decisions is sustained in the New 
 York Printing Co. vs. Fitch (1 Paige's Eep. 97) ; Hart vs. The 
 Mayor of Albany (3 ibid. 213) ; Anthony vs. Brooks (5 Georgia 
 Eep. 576) ; Amelung vs. Sechamp (9 Gill & Johns. 468) ; and 
 Kerr vs. IBierkower (3 Maryland Ch. Decisions, 499). 
 
 In Haigh vs. Jaggar (2 CoUyer Ch. Cas. 231), "Vice-Chancellor 
 Sir Knight Bruce said : " I am not convinced, that where a man 
 is in possession, however full and complete, of an estate, by a title 
 simply and merely adverse to that of another by whom the estate 
 is, whether at law or in equity, claimed against him, without any 
 
174 INJUNCTION. [§ 219. 
 
 privity between ttem — such a state of things, if the party in pos- 
 session, whether truly or untruly, swear his title to be jnst and 
 valid, or that of his adversary to be unjust and invalid, does of 
 necessity prevent a court of equity from interfering to restrain 
 the party in possession from stripping the estate of its timber, 
 pulling down the mansion, or other such acts. It is, I think, cer- 
 tainly true that the Court of Chancery does not treat questions 
 of destructive damage to property now, exactly as it did forty or 
 fifty years back; that its' protection in such respects is more 
 largely aiforded than it then generally was." 
 
 So in the Union Railway Co. vs. Bolton (3 Railway Cases, 
 345), "Vice-Chancellor Sir J. Wigram said : "The jurisdiction of 
 the court to grant injunctions in cases of pure trespass, is com- 
 paratively of modern establishment ; but it is now clearly settled, 
 that in cases of trespass^under color of title, where the mischief is 
 irreparable, the jurisdiction of the court exists; and I incline 
 strongly to the opinion that, whether the mischief be irreparable 
 or not, this court ought, by decree, at least, if not upon motion, 
 extend and apply the jurisdiction of preventive justice to all 
 cases of trespass, in which, by analogy to cases of specific per- 
 formance, damages would be an inadequate and uncertain rem- 
 edy, and the protection of the right in issue the only mode of 
 doing complete justice between the parties." 
 
 I. 4. To restrain nuisances. — The right to interfere and re- 
 strict the use of property as producing a nuisance to an individ- 
 ual, is founded upon his right to property, and the ij-reparable 
 damage or great injury to its enjoyment, resulting from the exist- 
 ence and use of what is sought to be restrained. 
 
 I am not aware of any case in which an injunction has been 
 granted, at the instance of an individual suitor, when there was 
 no other ground for it but an injury to personal health and com- 
 fort. It is the effect upon the enjoyment and value of property 
 that warrants the interference. 
 
 Mr. Eden says : " The author has not been able to find a pre- 
 cedent in which the court has actually interfered to restrain the 
 carrying on of a noxious trade, destnictive to the health and com- 
 fort of the neighborhood." ' 
 
 ' On Injunctions, p. 159. 
 
§ 219.] INJUNCTION. 1Y5 
 
 In Crowder vs. Tinkler (19 Yesey, 61Y), Sir Samuel Eoniilly 
 admitted that danger to life was not a ground for an injunction, 
 but the claim to injury to property could not be weakened by it. 
 The Lord Chancellor said: "An injunction could be issued, not 
 on the ground of nuisance, but of danger to property." 
 
 In the case of the Attorney -G-eneral vs. Cleaver (18 Vesey, 
 211), there was an information on the relation of individuals upon 
 the ground of the oifensive and unwholesome smell arising from 
 a manufacturing of soap, or black ash ; it was held that the injunc- 
 tion could not be allowed until a trial at law should be had. 
 
 In Barnes vs. Baker (Ambler, 158), Lord Hardwicke says that 
 the application should be by the Attorney-General, when the 
 court had the power to enjoin in cases of public nuisance. A 
 similar rule is stated in Anon, 3 Atkyns, Y50. 
 
 In late cases, the rules upon this head are rendered to a con- 
 siderable extent definite and consistent. 
 
 In Melter vs. Self (1 Eng. L. & Eq. Kep. 15), a landowner had 
 built a house and laid out gardens and shrubbery before 1829, 
 and let the same to a tenant. The house was occupied continually 
 down to 1851. In 1860, the owner of adjoining land began to 
 manufacture bricks of the clay or earth of his land, by burning 
 in clamp, within 144 feet of the house, and 15 feet of the stable. 
 On a bill by the landowner and his tenant, it was held that the 
 brick-making was a private nuisance, and (both parties requesting 
 the court not to send the case to a court of law) an injunction was 
 granted to restrain the defendant from burning brick on his 
 ground, so as to occasion damage or annoyance to the owner or 
 occupier of the house and grounds. 
 
 In Spencer vs. The London & Birmingham Tiailway Co. (8 
 Simons, 119), and in Sampson vs. Smith (8 Simons, 193), the dis- 
 tinction was taken, that where the public nuisance particularly 
 affected the individuals complaining, so as to cause a special 
 damage to them, they could sue witljout the Attorney-General. 
 
 In Tichenor vs. Wilson (1 Halst. N. J. Ch. Eep. 197),' the bill 
 set forth that injury arose to the property and health of the plain- 
 tiff from chemical works on land adjoining, owned by the defend- 
 ant. It was held that it was necessary for him to make out a 
 clear case of nuisance and of irreparable injury. The complain- 
 ant having lived three and a half years in the place, after the 
 
176 INJUNCTION. [§ 219. 
 
 works had been in operation, and there not having been any 
 material change in them during that period, an injunction was 
 denied. 
 
 Mr. Eden (page 163) enumerates, under the title of private 
 nuisances, various interferences with the enjoyment of property, 
 which are arranged in this work under distinct heads : such are 
 obstructions to streams, ancient lights, ferries, &c. The present 
 observations refer to nuisances of a public or common nature. 
 
 It has been determined that of this character are a brew- 
 house, glass-house, lime-kiln, dye-house, tan-pit, or swine-sty, if 
 set up in such part of a town as to incommode a neighborhood. 
 The erection of powder mills and magazines near a town is of the 
 same description.' 
 
 In The Attorney-General vs. Sheffield Gas Co. (19 En. L. & 
 Eq. Kep. 639 ; 3 De Gex, MclSTaughten & Gordon, 316), the court 
 refused to interfere by injunction, where the nuisance was of a 
 trivial character, and lasted but a few hours at a time. The 
 principle on which the court interferes by injunction is the in- 
 adequacy of the remedy at law, and it is on the ground of injury 
 to property that the jurisdiction rests. 
 
 In Haines vs. Taylor (10 Beavan, T5), the defendant was pro- 
 ceeding to erect gas works on a piece of ground within eighty- 
 eight yards of the plaintiff's house, l^o gas had yet been made, 
 and so the injury was prospective and contingent. The evidence 
 was conflicting whether, by scientific proceedings, all offensive 
 effect in the manufacturing of gas would not be removed. The 
 court refused to restrain the defendants from proceeding with 
 their building and making gas. 
 
 In Phoenix vs. The Commissioners of Emigration (Special 
 Term of the Superior Court, 1 Abbotts' Kep. 466 ; General Term, 
 12 Howard's Pr. Eep. 1), the judge at Special Term says : " Few 
 points are better settled than this — that a Court of Chancery wiU 
 interfere^ by injunction wheathe thing sought to be prohibited is 
 in itself a nuisance, and irreparable mischief will ensue, unless 
 the prohibition is granted before a trial at law. If the thing to 
 be enjoined is not noxious of itself, but something which may, 
 according to circumstances, prove to be so, the court will gen- 
 
 ' Comyna. Abr. Tit. Nuisance. 
 
§ 219.] INJUNCTION. 177 
 
 erally refuse to interfere until the matter has been tried at law. 
 But, if the magnitude of the injury to be dreaded is great, and 
 the risk so imminent, that no prudent man would think of incur- 
 ring it, the court will not refuse to interfere on the ground that 
 there is a possibility that the anticipated injury from the noxious 
 erection may not happen. 
 
 These are the general rules laid down by Lord Brougham,' 
 adopted by Chancellor Walworth (6 Paige, 563), and sustained 
 and applied in the following cases : Eowe vs. The Granite Bridge 
 Comp. (21 Pick. 344) ; Yaughan vs. Law (1 Humphrey, 123) ; 
 Kirkman vs. Houck (11 Humphrey, 406) ; City of Georgetown 
 vs. Alexandria Canal Comp. (12 Peters, 92) ; White vs. Cohen 
 (19 En. L. & Eq. Eep. 149). 
 
 " While the general rule is thus stated, it will be noticed that, 
 in many of the authorities, the effect of the intended erection was 
 an expected injury to property merely. This was the case in 
 The Mohawk Bridge Co. vs. The TJtiea & Schenectady E. E. Co. 
 (6 Paige, 554), where it was alleged that the erection of a new 
 bridge by the defendants, would be, by damming up the ice and 
 otherwise, to cause great damage to the bridge of the complain- 
 ants." 
 
 The principal cases which relate to nuisances to health and 
 comfort, connected with property, are stated by the court to be 
 the following : Anon (3 Atk. 750) ; Catlin vs. Yalentine (9 Paige, 
 576) ; The Burnt Island Whale Fish. Co. vs. Trotter (5 Wilson 
 & Shaw, 649) ; Swinton vs. Pedrie (15 Shaw & Dunlap, 775 ; 
 McLean & Eobinson's Pari. Eep. 1018) ; The Mayor of London 
 vs. Bolt (5 Vesey, 129) ; Attorney-Genl. & others vs. Blount (4 
 Hawks, 384). 
 
 " We find most of these cases to be those of slaughtering 
 houses. JSTow, such an erection is indictable as a nuisance at 
 common law. (Eex vs. Cross, 2 Carr. & Payne, 483 ; Eex vs. 
 Watts, ibid. 486.) The Scottish case of Catlin vs. Yalentine, and 
 several in our courts, are open to the comment tha.t,p7'im,a facie, 
 the trade or building to be inhibited was indictable as a nuisance, 
 and the court would not permit an experiment to be made to 
 ascertain whether untried, though perhaps efiicient means, might 
 not remove or diminish the evil. 
 
 ■ Cooper's Rep. Temp. Brougham, 843. 
 12 
 
178 INJUNCTION. [§ 219. 
 
 " The Scottish case of Swinton vs. Pedrie deserves particular 
 attention. The bill of suspension and interdict was to restrain 
 the erection of a range of shambles and slaughter-houses, which, 
 it was alleged, would proTe a nuisance to the property of the 
 parties, and would pollute a mill-head which passed the neighbor- 
 hood. The interdict granted by the Lord Ordinary, to whom it 
 was presented, was absolute, restraining the erection of the build- 
 ings, as well as the intended use of them as shambles. This was 
 ex-joarte. On a hearing, he recalled the interdict, so far as it pro- 
 hibited the erection of the buildings, but no farther. "When the 
 record was closed (proofs being taken), another Lord Ordinary 
 made the interdict permanent, as it was modified. On an appeal, 
 the plans by which the party expected to remedy the evil were 
 ordered to be submitted. This was done, and the Scottish Appeal 
 Court adhered to the interdict. 
 
 *' Then, in the House of Lords, it was recognized that the effect 
 of the interdicts, as they stood, was to allow the party to go on 
 with the building. The result was that the interdict was sus- 
 tained, but with a qualification or declaration which would enable 
 the party to apply to the court thereafter for an opportunity to 
 try the experiment whether the means he had devised could be 
 effectual to remove the nuisance. The court was not to be pre- 
 vented from recalling the interdict, if so advised. 
 
 " The foundation of the decision throughout was, that a slaugh- 
 ter-house in a city was, by the law of Scotland as of England, a 
 common nuisance. 
 
 " It is impossible to say that the law has pronounced an Emi- 
 grant depot in a city to be a public nuisance. Its character must 
 be established by the nature of the diseases of its inmates ; their 
 frequency and extent ; the number of persons received ; the peril 
 to health arising from their presence ; the location of the edifice 
 as to a large or scanty population in its vicinity ; the precautions 
 which may be used and can be depended upon, and many other 
 circumstances peculiar to each individual ease." 
 
 The injunction was refused. 
 
 In Penniman vs. The Balance Co. (13 Howard, 39), the rule 
 was recognized, that an individual whose right to property was 
 affected, could sustain a bill to restrain a nuisance which worked 
 special injury to him.. 
 
§ 219.] INJUNCTION. 179 
 
 In The City of Georgetown vs. The Alexandria Canal Co. (12 
 Peters, 91), it is stated : "The court of equity, pursuing the anal- 
 ogy of the law, that a party may maintain a private action for 
 special damage, even in case of a public nuisance, will now take 
 jurisdiction in case of a public nuisance, at the instance of a pri- 
 vate person, where he is in immediate danger of suiferiDg a spe- 
 cial injury, for which, under the circumstances of the case, the 
 law would not afford an adequate remedy." 
 
 In Corning vs. Lowerre (6 John. Ch. Eep. 439), this doctrine 
 was acted upon, where the defendant was encroaching by a build- 
 ing upon a street which had been opened and regulated for twenty 
 years, and the complainants, owners of lots on it, would be in- 
 jured. And in Catlin vs. "Valentine (9 Paige, 575), it was held 
 that a slaughter-house in a city was prima facie a nuisance to 
 the neighboring inhabitants, and might be restrained by injunc- 
 tion. It was not necessary that a noxious trade should endanger 
 health. It was suflBcient if it rendered the enjoyment of life and 
 property uncomfortable. The bill was by several owners of prop- 
 erty in the vicinity, and was filed while the building was being 
 erected. 
 
 By the 69th section of the act of April 17, 1860, to provide 
 against unsafe buildings in the city of New York (Sess. Laws, 
 ch. 490), " the said courts" (courts of record in the city, § 68) 
 " respectively, shall, in an action to be brought by the said super- 
 intendent in the name of the Fire Department, restrain by in- 
 junction the erection or alteration of any building, part or parts 
 of a building, shed, wall, chimney, staging or structure in the 
 city of New York dangerous to life or liberty, and shall decree 
 that the same, whether erected or altered, or in the course of 
 erection or alteration, be taken down or removed." The sheriff 
 is to execute the decree. 
 
 I. 5. Privileges and easements connected with land, 
 
 [a] Light and air. 
 
 "Whatever was the rule of the English law, as interpreted by 
 decisions before our revolution, as to which doubts have been 
 stated, the English act of 2 and 3 Wm. I"V., cap. 71, § 3, has set- 
 tled the law of that country. " That section simplifies and al- 
 most new founds the right to access of light. It founds the right 
 upon the actual enjoyment for the full period of twenty years 
 
180 INJUNCTION. [§ 219. 
 
 ■without interruption, unless that enjoyment be shown to be had 
 under a consent in writing. It puts the right, therefore, on tlie 
 simplest foundation, with the simplest exception." (Per Cole- 
 ridge, Justice, in The Merchants' Tailor Co. vs. Truscott, 34 Eng. 
 L. & Eq. Eep. 616.) 
 
 Creswell, Justice, in the same ease said : " By this section a 
 person who has the access of light for the full period of twenty 
 years without interruption, obtains a right to it. The statute 
 does not say, a person who has enjoyed it as of right, for every 
 one has a right to open a window on his own soil. It is true 
 that his neighbor has a right also, thus far, that at any time 
 within twenty years he may build upon his own land, and ob- 
 struct the access of light and air ; for within twenty years no 
 right is gained against him. The statute says, when it has been 
 actually enjoyed for so many years without interruption, the 
 right shall be absolute and indefeasible. It is not absolute, if 
 another person has a right to obstruct it ; it is only conditional." 
 
 The case also decided that the custom of London as to lights, 
 was abrogated by the statute. 
 
 By that custom, the lights of a neighboring house might be- 
 obstructed however ancient, if the party built on an old founda- 
 tion. 
 
 The case of Back vs. Stacy (2 Eussell's Ch. Eep. 121), is an 
 example of an injunction upon the basis of the former English 
 law, restraining the owner of a house from making erections or 
 improvements, so as to darken or obstruct the ancient windows of 
 an adjoining house. 
 
 The law of our own State appears to be fully settled, that no 
 prescription of time — nothing indeed but covenant, will prevent 
 the erection of a building, by the owner of adjoining property, 
 which will entirely shut up and obscure the lights of another 
 building. 
 
 In Packer vs. Foote (19 Wendell, 309), the reasoning of Jus- 
 tice Bronson, acquiesced in by Chief Justice Nelson, strikes at 
 the whole law, as well of the acquiring a title by uninterrupted 
 use and enjoyment for over twenty years, as of any right founded 
 on the presumption of a grant. " In the case of lights, there is 
 no adverse user, nor indeed any use whatever of another's prop- 
 erty ; and no foundation is laid for indulging any presumption 
 
§ 219.] INJUNCTION. 181 
 
 against the rightful owner . . . There is, I think, no principle upon 
 which the modern English doctrine on the subject of lights can 
 be supported. It is an anomaly in the law. It may do well 
 enough in England ; but it cannot be applied to the growing 
 cities and villages in this country without the most mischievous 
 consequences." 
 
 In Banks vs. The American Tract Society (4 Sandf. Ch. Rep. 
 438, 464), one question noticed by the Vice-Chancellor was, as 
 " to the complainant's right to light and air from the Spruce- 
 street lot, claimed from its uninterrupted enjoyment for a suffi- 
 cient length of time to ripen into a presumptive title. It was 
 insisted that, according to the established law of this State, no 
 such right can be acquired by lapse of time. That such enjoy- 
 ment of light and air is not adverse or hostile to any right of the 
 owner of the adjoining land, and cannot become the foundation 
 of a presumption of right to continue the use as against such 
 owner." 
 
 The Yice-Chancellor refers to Packer vs. Foote as probably 
 deciding the point, and to Mahan vs. Brown (13 "Wendall, 263), 
 Koberson vs. Dittinger (1 Green's Ch. Rep. 57, IST. Jersey), and 
 to a decision of the Court of Appeals in South Carolina, as hold- 
 ing the contrary doctrine; that is, that the enjoyment of the 
 light and air is an easement, which twenty years uninterrupted 
 use will ripen into a right. 
 
 In Palmer vs. Wetmore (2 Sandf. Sup. Ct. Rep. 314), it was 
 expressly decided that a landlord, who owned land adjoining the 
 demised premises, had a right to build on such land, although he 
 might thereby darken and obstruct the windows in the tenement 
 demised. It was not, however, a question of ancient lights. The 
 demise was in May, 1847, for three years, and the case was heard 
 in February, 1849. 
 
 In Myers vs. Gemmel (10 Barbour's Rep. 537), the subject 
 was very fully examined, and it was held, that the common law 
 of England on the subject of light and air, as an easement or 
 incident to real estate, was not the law of this country ; and that 
 a landlord, who had demised a lot in New York without any 
 covenant, was at full liberty to darken or stop up the windows of 
 the leased property, by an erection on his own lot. 
 
 The question as to the acquisition of a right by a user of twenty 
 years, did not expressly arise in the case. 
 
182 moruNCTioN. [§219. 
 
 [b] Lateral support of land. 
 
 It is Teiy fully settled in England, that a party is entitled to 
 have the soil of his neighbor remaia unaltered by any volun- 
 tary act, so far as it is necessary to give support to his own land 
 in its existing condition. The English authorities appear also to 
 settle, that if a house has been erected on land, and occupied for 
 twenty years, the adjoining owner may not dig his own ground in 
 such a manner as to injure the building, although the soil, but 
 for the superincumbent weight, would not have been interfered 
 with. 
 
 In Humphreys m. Brogden (12 Queen's Bench, T39, 1850), 
 Lord Campbell, Chief Justice, said : "In the case of adjoining 
 closes which belong respectively to different persons, from the 
 surface to the centre of the earth, the law of England has long 
 settled the degree of the lateral support which each may claim 
 from the other. The right to lateral support from adjoining soil is 
 not, like the support of one building upon another, supposed to 
 be gained by grant, but is a right of property passing with the 
 soil. If the owner of two adjoining closes conveys away one of 
 them, the alienee, without any grant for that purpose, is entitled 
 to the lateral support of the other close, the very instant when 
 the conveyance is executed, as much as after the expiration of 
 twenty years or any longer period." 
 
 In Wyatt vs. Harrison (3 Barn. & Adol. 871), Lord Tenterden 
 said : " The question reduces itself to this : whether if a person 
 builds to the utmost ex>tremity of his own land, and the owner of 
 the adjoining land digs the ground there, so as to remove some 
 part of the soil which formed the support of the building so erected, 
 an action lies for the injury thereby occasioned? "Whatever the 
 law might be, if the damage complained of were in respect of an 
 ancient messuage possessed by the plaintiif at the extremity of 
 his own land, (which circumstance of antiquity might imply the 
 consent of the adjoining proprietor at a former time, to the erec- 
 tion of the building in that situation), it is enough to say in this 
 case, that the building is not alleged to be ancient, but may, as 
 far as appears from the declaration, have been recently erected ; 
 and if so, then, according to the authorities, the plaintiff is not 
 entitled to recover. It may be true, that if my land adjoins that 
 of another, and I have not by building increased the weight upon 
 
§ 219.] INJUNCTION. 183 
 
 my soil, and my neighbor digs in his soil so as to occasion mine 
 to fall in, he may be liable to an action. But if I have laid an 
 additional weight upon my land, it does not follow that he is to 
 be deprived of the right of digging his own ground, because mine 
 will then be incapable of supporting the artificial weight which I 
 have laid upon it." 
 
 Lord Campbell, in the case of Humphreys vs. Brogden, before 
 cited, states it to be law, that where a house has been supported 
 more than twenty years, by land belonging to another proprietor, 
 with his knowledge, and he digs near the foundation of the house, 
 whereby it falls, he is liable to an action at the suit of the owner 
 of the house. 
 
 See also Smith vs. Eenwick (7 Com. Bench Eep. 515). 
 
 In Hunt vs. Peake (1 Hy. Johnson's Ch. Eep. T05, Vice-Ch. 
 Stuart, 1860), the Vice-Chancellor said : " What I conceive to be 
 settled is this, that every person in working earth on his own 
 land, whether by surface excavations or underground pits, is 
 bound so to work as not to cause any subsidence of the original 
 soil of his neighbor. In other words, every man is entitled to 
 have his land in its natural state, supported by the adjoining land 
 of his neighbor ; and this is an original right incident to his 
 property, of which he cannot be deprived by his neighbor's ope- 
 rations on adjoining land." 
 
 The Yice-Chancellor also thought, that a right might be ac- 
 quired by twenty years enjoyment, to a lateral support for the 
 additional weight of a building on the land. 
 
 In Lasala vs. Holbrook (4 Paige's Rep. 169), the Chancellor 
 said : " I have a natural right to the use of my land in the situa- 
 tion in which it was placed by nature, surrounded and protected 
 by the soil of the adjacent lots ; and the owners of these lots will 
 not be permitted to destroy my land, by removing this natural 
 support or barrier. Thus, it is laid down by Polle, that I may 
 sustain an action against a. man who digs a pit on his own land 
 so near to my lot, that my land falls into the pit (2 Eolle's Ab. 
 665, 1. 10). But my neighbor has a right to dig a pit on his own 
 land, if necessary to its convenient or beneficial use, when it can 
 be done without injury to my land in its natural state. I cannot, 
 therefore, deprive him of this right, by erecting a building on my 
 lot, the weight of which will cause my land to fall into the pit 
 
184 INJUNCTION. [§ 219. 
 
 wliich lie may dig, in the proper and legitimate exercise of his 
 previous right to improve his own lot. (1 Siderfin, 667; 2 
 Eolle's Ab. 665, 1. 5.) These principles were fully recognized in 
 Thornton vs. Hancock (12 Mass. Eep. 223)." 
 
 Panton vs. Holland (17 John. Eep. 92) is also cited by the 
 Chancellor. The law is there stated very comprehensivelj^, that 
 an owner may dig upon his own premises, without regard to the 
 effect upon an adjoining messuage, unless he do so wilfully or 
 maliciously. The question as to the right to a support of the soil 
 in its natural state, is not noticed. 
 
 In Farrand vs. Marshall (21 Barbour's Eep. 409), the case is 
 thus stated by "Wright, Justice : " The parties are owners and 
 possessors of adjoining closes, the plaintiff having acquired title 
 from the defendant. "Where the closes adjoin, the land is in its 
 natural state. The plaintiff has laid no additional weight upon 
 the land increasing its lateral pressure. The defendant is en- 
 gaged in digging and removing the earth and clay from his close 
 near its junction with that of the plaintiff, for the purpose of 
 making brick. He has already excavated to the depth of fifty 
 feet, within a short distance of the western extremity of the plain- 
 tiff's close, so as to cause the plaintiff's to crack and subside, and 
 the exterior fences to crack and stretch apart. The defendant 
 threatens to pursue his excavations up to the western line of the 
 plaintiff's close, the consequence of which would be, that the 
 plaintiff's land, losing its natural support, would subside and fall 
 over into the pit made by the defendant's excavations." 
 
 The court held, after an elaborate examination, that a court of 
 equity had the power to restrain a land owner from excavating 
 or removing soil from his land adjoining the land of another, if 
 the effect of such excavation and removal will be to cause the 
 land of his neighbor, by reason of the withdrawal of its natural 
 support, to fall away or subside. 
 
 The court appear to sustain the doctrine that had a building 
 been before upon the land the ease might be different. 
 
 The views of Chief Justice Bronson, in Eadcliff 's Exec'rs vs. 
 The Mayor of Brooklyn (4 Comstock, 195), are, as to same points, 
 examined and contested. 
 
 [o] Support by subjacent land. — In Humphies vs. Brog- 
 den (12 Queen's Bench Eep. 739, 1850), Lord Campbell said: 
 
§ 219.] IKJUNCTION. 185 
 
 " We have, therefore, to consider whether, when the surface of 
 land (by which is here meant the soil lying over the, minerals) 
 belong to one man, and the minerals belong to another, no evi- 
 dence appearing to regulate or qualify their rights of enjoyment, 
 the owner of the minerals may remove them without leaving 
 support sufficient to maintain the surface in its natural state. 
 The case is relieved from the consideration how far the rights and 
 liabilities are effected by the erection of buildings, for the plain- 
 tiff, claims no greater degree of support for his land, than they 
 must have required and enjoyed since the globe subsisted in its 
 present form." 
 
 After stating the law, as to the right to lateral support in the 
 passages quoted {ante, p. 182), he proceeds : " Pari rations, 
 where there are separate freeholds under the surface of the land, 
 and the minerals belong to different owners, we are of opinion 
 that the owner of the surface, while unencumbered by buildings, 
 and in its natural state, is entitled to have it supported by the 
 subjacent mineral strata. .... If the surface subside and 
 is injured by the removal of these strata, the owner may main- 
 tain an action. 
 
 In Harris vs. Eyding (5 Meeson & Welsby, 60), the grantor 
 of premises reserved the right to all mines, &c., with liberty to 
 come in and dig upon the premises to get coal, &c., and to carry 
 it away, making compensation for damages done to the premises. 
 It was held that he was not entitled to take all the mines, but 
 only so much as he could get, leaving a reasonable support to the 
 surface. 
 
 In liTichlin vs. "Williams (26 En. L. & Eq. Eep. 549), the rule 
 was recognized, of the right of an owner to the support of a stra- 
 tum of coal under his land ; and it was held that the -nithdrawal 
 of a part of such support gave a right of action, although no 
 immediate damage resulted. Hence an action for such withdraw- 
 al, settled by an award and satisfaction, was held a bar to a sub- 
 sequent action after damage took place. 
 
 [d] Party Walls. 
 
 Where the owner of land builds houses upon it, adjoining 
 each other so as to require mutual support, there is, either by a 
 presumed grant or a presumed reservation, a right to such mutual 
 support, and such right is not affected by a subsequent subdivis- 
 
186 INJUNCTION. [§ 219. 
 
 ion of the property. An injunction may issue to restrain the 
 infringement of this right. 
 
 In Eiehards vs. Eose (24 En. L. & Eq. Eep. 406), Pollock, Ch. 
 Baron, said : " It seems to be clear, that where a number of 
 houses are built upon a plot of ground, all the houses belonging 
 to the same person being all built together, and each obviously 
 requiring the mutual support of its neighbors for their common 
 protection and security, such right of mutual support equally 
 exists, whether the owner parts first with one house and Ijhen 
 with the other, or with two together ; the ownership of the latter 
 being afterwards divided, either by sale, mortgage, deviee, or by 
 any other means." 
 
 In Eno vs. Del Yechio (4 Duer, 63 ; S. C. 6 Duer, 17), the 
 following propositions were stated by the court : " Ist. If the 
 owner of two adjoining lots erects buildings upon them, with a 
 wall partly on each, to be used as a support to both buildings, 
 and which is necessary to furnish such support, and which is used 
 for that purpose from the time of its erection, a conveyance of 
 either house and lot with its appurtenances, grants an easement 
 for the support of the house so conveyed, in so much of the wall 
 as stands upon the other lot. 
 
 " 2d. After such a grant, and a continued use of such 
 party wall to support both buildings for more than twenty years, 
 neither party can remove the wall, nor so deal with it as to render 
 it an insufficient support for the other's building without his con- 
 sent. If he does, he is liable to the other for the injury. 
 
 " 3d. If either wishes to improve his own premises before 
 the party wall becomes ruinous, or incapable of further answer- 
 ing the purposes for which it was erected, he may underpin the 
 foundation, sink it deeper, and increase, within the limits of his 
 own lot, the thickness, length, or height of the party wall, if he 
 can do so without injury to the building on the adjoining lot ; 
 and to avoid such injury he may shore up and support the origi- 
 nal party wall a reasonable time, to excavate and place a new 
 underpinning beneath it. 
 
 " 4th. But he cannot interfere with it in any manner 
 unless he can do so without injury to the adjoining building, or 
 has the consent of the owner of such building." 
 
 In Partridge vs. Gilbert (3 Duer, 184, on Appeal ; 15 N. Y. 
 
§ 219.] INJUNCTION. 187 
 
 Rep. 601), it was ruled, that where the owner of adjoining houses 
 having a common party wall, conveys the houses to different 
 grantees, and makes the centre of the wall the dividing line of 
 the land conveyed to them respectively, each grantee acquires 
 an easement of supporting his building by means of the half 
 of the wall belonging to his neighbor. This right exists so 
 long as the wall continues to be sufficient for the purpose, and 
 the respective buildings remain in a condition to need and enjoy 
 the support. When this ceased to be the case, and it became 
 necessary to take down the wall and rebuild the stores, either the 
 interest of each proprietor in the land of the other ceased with 
 the existence of the state of things which created it, or each was 
 entitled to call upon the other owner to reimburse him one-half 
 of the expense. 
 
 The Chief Justice (Denio) then remarks upon the question, 
 whether, when the wall is ruinous so as to require being taken 
 down, the mutual rights of the parties still subsist, and contribu- 
 tion for the expense of a re-construction may be enforced. He 
 inclines to the doctrine of the Superior Court in Sherred vs. Cisco 
 (4 Sandf. S. C. Rep. 480), that these mutual interests and obliga- 
 tions would then cease ; but it was unnecessary to decide so im- 
 portant a practical question, as the jury had found that the wall 
 and the old buildings were no longer fit to stand ; and the de- 
 fendants violated no right of the adjoining proprietors in taking 
 down their own building, which made it absolutely necessary to 
 take down the wall. 
 
 In Ogden vs. Jones (2 Bosworth, 685), a lot was conveyed of 
 28 feet breadth, front and rear, by express boundaries and dimen- 
 sions, but the grantor excepted, and reserved to himself, &e., one- 
 half of the westerly wall erected, or to be erected, by the grantee, 
 or any one under him, on the westerly side of the premises, ad- 
 joining the lot of the grantor, the latter covenanting to pay half 
 the expense of supporting such wall. The grantee erected a 
 dwelling-house 28 feet front, with a westerly wall 12 inches in 
 thickness. The grantor afterwards erected a dwelling-house, 
 using the wall as a support thereof. 
 
 It was held, that the reservation and covenant did not reserve 
 the fee in the ground on which the wall stood, nor did it give any 
 such property in the wall as entitled the grantor to cut it away, 
 
188 INJUNCTION. [§ 219. 
 
 or undermine it, but only gave him a right to use it as a support 
 for his adjoining building. 
 
 He could not therefore cut away the front of the grantee's 
 house, and extend the front of liis own building on the lot of the 
 former, over the westerly line of the 28 feet, so as to present on 
 the exterior a front extending to the centre of the party wall. 
 
 An injunction was granted preventing a grantee of the grantor 
 from interfering with such westerly wall, in any manner, except 
 by using it as a support for the adjoining building. 
 
 [b] Dedication. — The dedication of highways and streets 
 for the passage of carriages and other conveyances, and of public 
 squares in cities and villages, as promenades for health and exer- 
 cise, arises from the acts of the owner, or from user. "When estab- 
 lished, it becomes a public right. " It is the deliberate appropri- 
 ation of- the land by its owner, for any general and public uses, 
 reserving to himself no other rights in the soil than such as are 
 perfectly compatible with the full exercise and enjoyment of the 
 public uses to which he has devoted his property. Such an ap- 
 propriation, our courts have held, will take effect without any 
 formal deed, or any matter of record, and without any specific 
 grantee to take the title. In respect to such an opening of land 
 for streets and highways, the law has been clearly settled by nu- 
 merous decisions here and in England, both as to the effect of the 
 dedication itself and as to its external evidence." (Verplanck, 
 Senator, in Post vs. Pearsall, 22 Wendell, 472.) The learned 
 senator then clearly showed that these rules had been applied to 
 public squares, commons, and springs of water. He contends 
 that it is equally applicable to a landing place on the shore of a 
 stream. His proposition was, however, negatived by the Court 
 of Errors, affirming the judgment of the Supreme Court in the 
 case. 
 
 The rule as to public places, commons, and public springs, 
 may be stated to be, that mere prescription does not establish the 
 right ; but may be resorted to as a piece of evidence to corrobo- 
 rate other testimony as to an appropriation by the owner. 
 
 In Cady vs. Conger (19 IST. Y. Hep. 256), a dedication was es- 
 tablished from the language of an instrument of conveyance, the 
 actual carrying out of the intended purpose, corroborated and ex- 
 plained by user. 
 
§ 219.] INJUNCTION. 189 
 
 In that case, the plaintiif was the owner of a house fronting 
 on a village green, alleged to have been dedicated ; and brought 
 his action on behalf of himself and all others similarly situated. 
 It was held that he could support the suit, there being no village 
 corporation which might assert the general right of the public. 
 A perpetual injunction was granted. 
 
 The following authorities relate to dedications for various pub- 
 lic purposes. To a public square : 6 Peters U. S. Rep. 431 ; 2 
 Vermont, 480 ; 3 ibid. 521 ; 4 Paige, 519. To a college green : 
 3 ibid. 530. To a court-house square : 6 ibid. 355. To a bury- 
 ing-ground : 6 Hill, 407. To the reservation of a spring of water : 
 12 Wheaton, 583. 
 
 Maxwell vs. The East Kiver Bank (3 Bosworth, 124), was not 
 the case of a dedication in its technical sense, although the judge 
 at Special Term found it to be such. It was placed at the Gene- 
 ral Term, upon the ground of an agreement for conformity in the 
 line of building, by which an additional open space, constituting 
 the apparent street, should continue permanently of a given in- 
 creased width. 
 
 In the Mayor, &c., vs. Stuy versant (17 N. T. E. 34), it was 
 held, that no dedication of land for a public square could be im- 
 plied against the heirs of the grantor, from its representation as a 
 mere blank, undistinguished from the streets surrounding it, upon 
 a partition map made by such heirs, and by reference to which 
 they conveyed lots twenty years before the expiration of the pe- 
 riod within which the election to open it w^s vested in the 
 grantees of the square or their assigns, the square being then 
 covered with buildings, and such map not professing to show a 
 partition of all the land inherited. 
 
 A case of a similar nature is Huttmier vs. Albro (18 IST. Y. 
 Hep. 48). A partition was made between the owners of three lots 
 and an alley in the city of ISTew York, the lots all fronting upon 
 public sti'eets and abutting on the alley, which then was, and for 
 years had been, used as a means of access to the rear of the lots. 
 Deeds were executed, which referred to the alley as a boundary, 
 and, with one exception, so described the lots as to exclude the 
 alley from the premises conveyed. 
 
 The judge below held, that the deeds conveyed, as an incident 
 and appurtenance to the lot itself, a right to the use of the alley- 
 
190 INJUNCTION. [§ 219. 
 
 way, as it had been and was then used. Judgment was given, 
 that the defendant remove from it all obstructions, and refrain 
 from interfering with the free and unobstructed use thereof. 
 
 The Court of Appeals aflSrmed the judgment. "Whether a 
 right of way or other easement is embraced in a deed, is always a 
 question of construction of the deed, having reference to its terms 
 and the practical incidents belonging to the grantor of the land 
 at the time of the conveyance. The intention of the parties is to 
 be learned from these facts." 
 
 See the case before the General Term of the Su^rior Court, 
 2 Bosworth, 54:6. See, also, Carpenter vs. Gwynn, 35 Barb. 396. 
 
 I. 6. Water privileges and rights to water. 
 
 " The subject of a right to the streams of water flowing on 
 the surface has been of late years fully discussed, and by a series 
 of carefully considered judgments, placed upon a clear and satis- 
 factory footing. It has been now settled that the right to th? 
 enjoyment of a natual stream of water on the surface belongs, 
 ex jure naturce, to the proprietor of the adjoining lands, as a nat- 
 ural incident to the right to the soil itself ; and that he is entitled 
 to the benefit of it, as he is to all the other natural advantages 
 belonging to the land of which he is the owner. He has the right 
 to have it come to him in its natural state, in flow, quantity, and 
 quality, and to go from him without obstruction. His right in 
 no way depends upon prescription, or the presumed grant of his 
 neighbor. The elaborate judgment of Lord Denman in the case 
 of Mason m. Hill, in 1833 (5 Barn. & Adol. 1), reviewed most 
 prior judgments and authorities of importance up to that date, 
 and fully established that proposition." — (Per Lord "Wensleydale, 
 7 House of Lords Cases, 349-380). 
 
 [a] Swrface water on defined streams. — In the above case, the 
 case of Embury vs. Owen (6 Exch. Eep. 353), is spoken of as 
 clearly enunciating the principles respecting the rights to water 
 flowing in definite visible channels. A reference to these and a 
 few other authorities is therefore all of English cases that I deem 
 necessary upon this subject. 
 
 In the first of them. Mason vs. Hill (5 Barn. & Adol. 1), the 
 case was this : A, erected a mill on his own land in 1823, the 
 former owner of which had, for twenty years before 1818, appro- 
 priated the water of a stream running through it, to the purposes 
 
§ 219.] INJUNCTION. 191 
 
 of watering Ins cattle and irrigating his land. At the time when 
 the defendant's mill was erected, the then owner and occupier of 
 the plaintiff's land gave a parol license to the defendants to make 
 a dam at a particular place above, and to take what water they 
 pleased from that point to their mill ; which water was so taken, and 
 returned by pipes into the stream above the spot where the plain- 
 tiff's mill was afterwards erected. The plaintiffs demolished the 
 dam of the defendants, and the latter then erected a new one 
 lower down, and by means of it diverted from the plaintiffs' mill 
 at some times all the water, at others a part of it, and returned 
 the remainder in a heated state into the stream. The court no- 
 ticed, that the demolition of the first dam by the plaintiff could 
 not give a right to the defendants to construct a new one at an- 
 other place. If a wrong was done they had their action. 
 
 They proceed : " The proposition for which the plaintiff con- 
 tends is, that the possessor of lands through which a natural 
 stream runs, has a right to the advantage of that stream flowing 
 in its natural course, and to use it when he pleases for any pur- 
 poses of his own, not inconsistent with a similar right in the pro- 
 prietors of the land above and below ; that neither can any 
 proprietor above diminish the quantity or injure the quality of 
 water which would otherwise descend, nor can any proprietor 
 below throw back the water without a license or grant ; and 
 that, whether the loss by diversion of the general benefit of such 
 a stream be or be not such an injury in point of law as to sustain 
 an action without some special damage, yet as soon as the pro- 
 prietor of the land has applied it to some purpose of utility, or is 
 prevented from so doing by the diversion, he has a right of action 
 against the person diverting. 
 
 " The proposition of the defendants is, that the right to .flowing 
 water ispublici jxoris, and that the first person who can get pos- 
 session of the stream, and apply it to a useful purpose, has a good 
 title to it against all the world, including the proprietor of the 
 land below, who has no right of action against him, unless such 
 proprietor has already applied the stream to some useful purpose 
 also, with which the diversion interferes ; and in default of his 
 having done so may altogether deprive him of the benefit of the 
 water. 
 
 "The position that the first occupant of runni""- water for a 
 
192 rajuNCTioN. [§ 219. 
 
 beneficial purpose has a good title to it is perfectly true in this 
 sense, that neither the owner of the land below can pen back the 
 water, nor the owner of the land above divert it to his prejudice. 
 In this, as in other cases of injuries to real property, possession 
 is a good title against a wrong doer ; and the owner of the land 
 who applies the stream that runs through it, to the use of a mill 
 newly erected or other purposes, if the stream is diverted or 
 obstructed, may recover for the consequential injury to the mill. 
 But it is a very different question whether he can take away from 
 the owner of the land below, one of its natural advantages, which 
 is capable of being applied to profitable purposes, and generally 
 increases the fertility of the soil, even when unapplied, and deprive 
 him of it altogether by anticipating him in its application to 
 a useful purpose. If this be so, a considerable part of the value 
 of an estate which, in manufacturing districts particularly, is 
 much enhanced by the existence of an unappropriated stream of 
 water, with a fall within its limits, might at any time be taken 
 away ; and, by parity of reasoning, a valuable mineral or brine 
 spring might be abstracted from the proprietor in whose land it 
 arises, and converted to the profit of another." 
 
 His lordship then proceeds to examine Bealey vs. Shaw (6 
 East. 208) ; Saunders vs. Newman (1 B. & A. 258) ; Williams vs. 
 Moreland (2 B. & 0. 113), and other statements of judges or wri- 
 ters, and says : " ITone of these dicta, when properly understood 
 with reference to the cases in which they were cited, and the 
 original authorities in the Eoman law, from which the position 
 that water is puilici juris is deduced, ought to be considered as 
 authorities, that the first occupier or first person who chooses to 
 appropriate a natural stream to a useful purpose, has a title 
 against the owner of the land below, and may deprive him of 
 the benefit of the natural fiow of water." 
 
 " From these authorities, it seems that the Koman laws con- 
 sidered running water not as a honum vaeans, in which any one 
 might acquire a property, but as public or common in this sense 
 only, that all might drink it of apply it to the necessary purposes 
 of supporting life ; and that no one had any property in the water 
 itself except in that particular portion which he may have ab- 
 stracted from the stream, and of which he had the possession, and 
 during the time of such possession only." 
 
§ 219.] INJUNCTION. 193 
 
 In Embery vs. Owen (6 Exch. Eep. 353), the plaintiffs were 
 occupiers of a water grist mill, situate on the banks of the river 
 Ehiew. The defendant was owner of land on both sides of that 
 river above the mill, and the action was brought against her for 
 diverting part of the water of the river for the purpose of irri- 
 gating certain meadows on the northern bank, which were in 
 possession of her tenant. The water was diverted by means of 
 an iron trough or aqueduct, placed near a waste weir, from 
 whence the surplus of waste water was carried into the trough 
 or aqueduct, and by it over the river into the main and floating 
 gutters of the meadows when required for irrigation ; at other 
 times such surplus waters was discharged directly into the bed of 
 the river from the trough by means of an iron flap or sluice in its 
 middle. A portion of the water was lost by absorption and 
 evaporation in the process of irrigation ; the working of the plain- 
 tiff's mill, however, was not impeded ; the quantity thus lost 
 was estimated differently by the witnesses, from four per cent, to 
 one-seventh of one per cent. 
 
 The judge left it to the jury to find, whether there was any 
 sensible diminution of the natural flow of the water by means of 
 the diversion, and whether the quantities of water absorbed and 
 evaporated in the process of the defendant's irrigation were small 
 and inappreciable quantities ; intimating that the latter term might 
 mean so inconsiderable as to be incapable of price or value. Both 
 questions were answered in favor of the defendant. 
 
 The court observed : " The right to have a stream flow in its 
 natural state, without diminution or alteration, is an incident to 
 the property in the land through which it passes ; but flowing 
 water is publioi juris not in the sense that it is honum vacans, to 
 which the first occupant may acquire an exclusive right, but that 
 it is public and common in this sense only, that all may equally 
 use it who have a right of access to it ; that none can have any 
 property in the water itself, except in the particular portion 
 which he may abstract from the stream, and take into his posses- 
 sion, and that during the time of his possession only. But each 
 proprietor of the adjacent land has the right to the use, first, of 
 the stream which floats through it. This right to the benefit and 
 advantage of the water fiowing past his land is not an absolute 
 or exclusive right to the fiow of all the water in its natural state ; 
 13 
 
194: INJUNCTION. [§ 219. 
 
 if it were, the argument of the learned counsel that every ab- 
 straction of it would give a cause of action would be irrefraga- 
 ble ; but it is a right only to the flow of the water and the enjoy- 
 ment of it, subject to the similar rights of all the proprietors on 
 the banks on each side, to the reasonable enjoyment of the same 
 gift of Providence. It is only, therefore, for an unreasonable and 
 unauthorized use of this common benefit that an action will lie : 
 for such an use it will." 
 
 The passage from 3 Kent's Comm., pp. 439-445, is cited, as 
 stating the law most perspicuously. 
 
 The opinion of the Yice-Chancellor, in "Wright vs. Howard (1 
 Sim. & St. 190), is pronounced by Chief-Justice Denman (5 Bam. 
 & Adol. 1) to be a luminous judgment. The Vice-Chancellor 
 said : " The right to the use of water rests on clear and settled 
 principles. Prima/acie, the proprietor of each bank of a stream 
 is the proprietor of half the land covered by the stream ; but 
 there is no prbperty in the water. Every proprietor has an equal 
 right to use the water which flows in the stream, and, consequent- 
 ly, no proprietor can have the right to use the water to the preju- 
 dice of any other proprietor. Without the consent of the other 
 proprietors who may be affected by his operations, no proprietor 
 can either diminish the quantity of water which would otherwise 
 descend to the proprietors below, nor throw the water back upon 
 the proprietors above. Every proprietor who claims a right 
 either to throw the water back above, or to diminish the quantity 
 of water which is to descend below, must either prove an actual 
 grant or license from the owners affected by his operations, or an 
 uninterrupted enjoyment of twenty years ; which term of twenty 
 years is now adopted, upon a principle of general convenience, as 
 affording conclusive presumption of a grant. It appears to me 
 that no action will lie for diverting or throwing back water, ex- 
 cept by a person who sustains an actual injury ; but the action 
 must lie at any time within twenty years, when the injury hap- 
 pens to arise, in consequence of a new purpose of the party to 
 avail himself of the common right." 
 
 See, also, Tyler vs. "Wilkins, 4 Mason's Eeports, 398. 
 In Lampman vs. Milks (Court of Appeals, 21 E". Y. Rep. 505), 
 it was held that, where the owner of land across which a stream 
 flows, has diverted it through an artificial channel, so as to retrieve 
 
§ 219.] rajinsrcTioN. 195 
 
 a portion of the land formerly overflowed, whieli he then conveys 
 — neither he, nor his grantees of the residue, can return the stream 
 to its ancient bed, to the damage of the first grantee. Such bene- 
 fits, not naturally attached to the premises purchased, but pre- 
 viously conferred upon it at the expense of the other land of the 
 grantor, do not depend upon covenant, but remain attached to 
 the tenement conveyed, unless the right to subvert them is ex- 
 pressly reserved. 
 
 In Bellinger vs. The 'New York Central Eailroad (23 IST. Y. 
 Eep. 42), it was held that the obstruction of a water-course gave, 
 of itself, a right of action, without special damage. Eut it was 
 also held that, where a company, acting under legislative author- 
 ity, caused, by erections made with reasonable care, a consequen- 
 tial damage to an owner, the latter could not recover for such 
 damage. Kadcliff's Executors vs. Mayor of Brooklyn (4 Corn- 
 stock, 195), is cited to this point. 
 
 [b] Subterranean water.— The subject of the law upon sub- 
 terranean water, is fully discussed and stated in the late case 
 of Chasemore vs. Eichards (7 House of Lord's Cases, 349, 1859). 
 One of the lords, in expressing his opinion, stated that the house 
 was greatly indebted to the learned judges for the admirable rea- 
 soning by which they appear to have removed all doubt upon 
 one of the most important questions that ever came under the 
 consideration of a court of justice. 
 
 The statement of the decision in the head note is this : Where 
 A., a land-owner and mill-owner, who had for above sixty years 
 enjoyed the use of a stream which was chiefly supplied by perco- 
 lating underground water, lost the use of the stream, after an 
 adjoining owner had dug on his own ground an extensive well, 
 for the purpose of supplying water to the inhabitants of the dis- 
 trict, many of whom had no title as land-owners to the use of the 
 water ; it was held that A. had no right of action." I cite some 
 of the most important passages at length. 
 
 " The law respecting the right to water flowing in definite,, 
 visible channels, may be considered as pretty well settled by sev- 
 eral modern decisions, and is very clearly enunciated in the judg- 
 ment of the Court of Exchequer in Embery vs. Owen (6 Exch. 
 Kep. 353).' But the law, as laid down in those cases, is inappli- 
 
 ' Also reported 4 En. L. & Eq. Rep. 466. 
 
196 INJUNCTION. [§ 219. 
 
 cable to the case of subterranean water not flowing in any definite 
 channel, nor, indeed, at all, in the ordinary sense, but percolating 
 or oozing through the soil, more or less, according to the quantity 
 of rain that may chance to fall. The inapplicability of the gen- 
 eral law respecting rights to water to such a case, has been recog- 
 nized and observed upon by many judges, whose opinions are of 
 the greatest weight and authority." ("Wightman, Justice, deliv- 
 ering the opinion of the judges.) 
 
 " The law as to water flowing in a certain and definite channel 
 has been settled by a series of decisions, in which the relative 
 rights and duties of riparian proprietors have been carefully ad- 
 justed and established. The principle of these decisions seems to 
 me to be applicable to all water flowing in a certain and defijied 
 course, whether in an open and visible stream, or in a known sub- 
 terranean channel ; and I agree with the observation of Chief 
 Baron Pollock, in Dickinson vs. The Grand Junction Canal Com- 
 pany (T Exch. Eep. 300), that if the course of a subterranean 
 stream were well known, as is the case with njany which sink 
 underground, pursue for a short space a subterraneous course, 
 and then emerge again, it could never be contended that the 
 owner of the soil under which th^ stream flowed could not main- 
 tain an action for the diversion of it, if it took place under such 
 circumstances as would have enabled him to recover, had the 
 stream been wholly above ground. But it appears to me that the 
 principle which applies to flowing water in streams or rivers, the 
 right to the flow of which, in its natural state, is incident to the 
 property through which it passes, are wholly inapplicable to 
 water percolating through underground strata, which has no cer- 
 tain course, no defined limits, but which oozes through the soil in 
 every direction in which the rain penetrates. There is no diffi- 
 culty in determining the rights of the different proprietors to the 
 usufruct of the water in a running stream ; whether it has been 
 increased by floods or diminished by drought, it flows on in the 
 same ascertained course, and the use which every owner may 
 claim is only of the water which has entered into and become a 
 part of the stream. But the right to percolating underground 
 water is necessarily of a very uncertain description. "When does 
 this right commence ? Before or after the rain has found its way 
 to the ground ? If the owner of the land through which the 
 
§ 219.] INJUNCTION. 197 
 
 ■water filters cannot intercept it in its progress, can he prevent its 
 descending to the earth at all, by catching it in tanks or cisterns ? 
 and how far will the right to this water supply extend ? " (Lord 
 Chelmsford's opinion.) 
 
 He cites, also, the following passage from Baron Alderson's 
 opinion in Broadbent vs. Eamsbotham (11 Exch. Eep. 615) : " No 
 doubt all the water falling from heaven and shed upon the sur- 
 face of a hill, at the foot of which a brook runs, must, by the 
 natural force of gravity, find its way to the bottom, and so into 
 the brook ; but this does not prevent the owner of the land on 
 which this water falls from dealing with it as he may please, and 
 appropriating it. He cannot, it is true, do so if the water has 
 arrived at and is flowing in some natural channel already 
 formed. But he has a perfect right to appropriate it before it 
 arrives at that channel." 
 
 " These cases apply to the right to surface-water, not flowing 
 in any defined material water-course. But, of course, the princi- 
 ples they establish are equally, if not more strongly, applicable to 
 subterranean water of the same casual, undefined, and varying 
 description." 
 
 The language of Chief Justice Tindal, in Acton vs. Blundell 
 (12 Meeson & "Welsby, 353), is quoted with approbation. " We 
 think the present case is not to be governed by the law which 
 applies to rivers and flowing streams ; but rather falls within that 
 principle which gives to the owner of the soil all that lies be- 
 neath the surface ; that the land immediately below is his prop- 
 erty, whether it is solid rock, or porous ground, or venous earth, 
 or part soil part water ; that the person who owns the surface may 
 dig therein, and apply all that is there found to his own pur- 
 poses ; and that if, in the exercise of this right, he intercepts or 
 draws off the water collected in his neighbor's well from under- 
 ground springs, it is damnum cibsque injuria, which cannot be- 
 come the subject of an action." 
 
 In that case of Acton vs. Blundell, a landowner who was car- 
 rying on mining operations in the usual way on his own land, 
 drained the water from the well of his neighbor. It was held 
 that the latter had no right of action against him. 
 
 The question was in substance this : whether the right of enjoy- 
 ment of an underground spring, or of a well supplied by such 
 
198 INJUNCTION. [§ 219. 
 
 underground spring, was governed by the same rule of law as 
 that which applies to and regulates a water course flowing on the 
 surface. 
 
 It was observed : " It is scarcely necessary to say, that we in- 
 timate no opinion whatever as to what might be the rule of law, 
 if there had been an uninterrupted use of the right for more than 
 the last twenty years ; but confining ourselves strictly to the facts 
 stated in the bill of exceptions, we think," &c. The court then 
 proceeds with the observations above quoted. 
 
 The doctrine of these authorities is recognized in the case of 
 Chatfield vs. "Wilson (28 Vermont Reports, 49). 
 
 In Haight vs. Eice (Court of Appeals, 21 N. Y. Eep. 241), it 
 was held that no acquiescence short of twenty years, could repel 
 the presumption that the diversion of a water course was adverse 
 to the rights of a riparian proprietor, or would authorize the pre- 
 sumption of a grant or license. 
 
 [o] Falling Water. — I apply this term to water falling 
 from the clouds, and not yet shed upon the earth ; or, if it has 
 reached it, not absorbed into any sheet or stream. The passages 
 cited from the case in the House of Lords, and from Broadbent 
 vs. Eamsbotham {ante p. 197), establish the right of the owner of 
 the land over which it descends, or through which it flows, to in- 
 tercept and appropriate it. 
 
 [d] Literal rights on navigable streams.— The following prop- 
 ositions are the settled law in our State. 
 
 The State has the title to all the navigable waters within its 
 borders, subject only to the jurisdiction delegated to Congress in 
 the Constitution of the United States, for the regulation of com- 
 merce. 
 
 The waters are, it seems, navigable wherever the tide ebbs 
 and flows ; and the principle extends to rivers, so far as the rise 
 and fall is governed by oceanic tides, although there be no actual 
 current up such rivers, and the water be not salt or brackish. 
 
 The State in its sovereign character owns the bed of navigable 
 streams to high-water mark ; the right of a riparian owner is sub- 
 servient to the power of the State to abridge or destroy it. 
 
 The riparian owner may use the water passing or adjoining 
 his own land for his own advantage, so long as he does not im- 
 pede the navigation. But the State may, as proprietor of the 
 
§ 219.] INJUNCTION. 199 
 
 waters, grant them, or any interest in them, to an individual. 
 No restriction exists, unless it arise under the Constitution of the 
 United States. (The People vs. Tibbetts, 19 IST. Y. Eep. 623.) 
 
 In Gould vs. The Hudson River Eailroad (2 Selden's E.ep. 
 522), it is held that the owner of land adjoining a navigable river, 
 has no private right or property in the waters of the river, or in. 
 the shore between high and low-water mark ; and, therefore, is not 
 entitled to compensation from a railroad company .which con- 
 structs, under a grant of the legislature, a railroad along the shore 
 between high and low-water mark, so as to cut off the communi- 
 cation between his land and the river, otherwise than across the 
 railroad. 
 
 In The People vs. Tibbetts before mentioned, this case and 
 its doctrine was recognized as established law. 
 
 The State did not merely succeed to the right of the Crown, 
 but to the whole power of the Crown and Parliament, subject 
 only to the Constitution of the United States. 
 
 The right to navigate the public waters of the State, and to 
 fish therein, is a public right, belonging to the people at large. 
 The Legislature, as the representative of the public, may restrict 
 and regulate the exercise of those rights, in such manner as may 
 be deemed most beneficial to the public. 
 
 A riparian proprietor on the bank of the Hudson Eiver had 
 no better right to the iise of the soil, between high and low-water 
 mark, than any other person. If he built a wharf there, it might 
 be treated as a purpresture, and demolished by direction of the 
 Legislature. 
 
 It is not every opening into the land affected by the tide, and 
 at times filled with salt water, which is to be deemed navigable 
 in the common-law sense. It must be something which is useful 
 for some purpose of trade or agriculture. 
 
 This position is fully stated and decided in Powe vs. Granite 
 Bridge Corporation (21 Pickering E. 344). The case arose upon 
 a bill for a perpetual injunction against an obstruction in a salt- 
 water creek. The relief was denied ; the creek could not be con- 
 sidered a stream navigable for any useful purpose of trade or 
 agriculture. The plaintiffs were owners of a tract of salt marsh, 
 through which a creek had run. The defendants, under an act of 
 incorporation, had power to build a road and bridge over the " ISTe- 
 ponset," across this tract of marsh. The Chief Justice said : " It 
 
200 INJUNCTION. [§ 219. 
 
 was not every creek in whicli a fishing skiif or a gunning canoe can 
 be made to float at high water, which is deemed navigable. It is 
 not the possibility of its being used under some circumstances, as 
 at extraordinary high tides, but it must be generally and com- 
 monly useful to some purposes of trade or agriculture." 
 
 So, in Glover vs. Powell (2 Stockton N. J. Eep. 211), it was 
 declared, that it was not every ditch navigable for small boats, at 
 certain periods of the tide, which is a navigable water ; but the 
 Legislature is the judge when it shall be considered and protected 
 as such, or obstructed. See also The American Eiver "Water Co. 
 vs. Amsden, 6 Calif. Eep. M3. 
 
 The adjacent proprietors are often said to possess some rights as 
 against others, though not as against the State, by virtue of their 
 ownership. In our State, however, this right is nothing more 
 than what they possess in common with all other citizens. With- 
 out an express grant, there is no exclusive right of fishing in the 
 adjacent waters, nor of bathing. The drawing of nets, where the 
 owner's upland is used, is a trespass on his property. He cannot 
 prevent the mere act of fishing in the waters by another." 
 
 Alluvion, &.C. — But the shore proprietor has an advantage in 
 the acquisition of what is termed alluvion, derelict land, or for- 
 mation of an island. The general principles are as applicable to 
 navigable waters as to other streams. 
 
 The rule is, that the acquisition by alluvion is only when 
 the gain is imperceptible — so slow and secret, that it cannot be 
 perceived how much is added in each moment of time. This rule 
 is recognized by the Court of Appeals of New York, in Halsey 
 vs. McOormick, 18 IST. T. Eep. 117. See Angell on Tide Waters, 
 p. 249. 
 
 In the. case referred to, the Judge who delivered the opinion 
 thought that there was no ground for a distinction, whether the 
 accretion arose from natural or artificial causes ; but the point 
 did not arise. In Adams vs. Frothingham, 3 Mass. Eep. 352, it 
 was ruled, that land formed by alluvion, from natural causes, or 
 from a union of natural and artificial causes, belongs to the own- 
 ers of the shores. 
 
 The interpretation of tlie word " imperceptible " is to be found 
 
 ' Hooker vs. Cummings, 20 Johns. Rep. 90 ; 2 Selden, 641. 
 
§ 219.] INJUNCTION. 201 
 
 iu the case of The King vs. Lord Yarborough, 3 Bam. & Cress- 
 well, 91 ; 2 Bligh. Eep. ]Sr. S. 147. 
 
 Sea-weed, thrown up by the sea, belongs to the adjoining 
 owner.' But not if it grows or accumulates below low-water 
 mark." 
 
 The soil which is left dry by a recession of the water, con- 
 tinues to belong to the State, because it belonged to it when cov- 
 ered by water.' But if an individual had acquired the title by a 
 grant, the relicted land would, of course, belong to him. The 
 same rule here applies as in the ease of alluvion. If the reliction 
 is slow and imperceptible, the adjoining owner has the benefit of 
 it. (Eex vs. Lord Yarborough, 3 Barn. & Cress. 91.) 
 
 The rule is similar as to islands formed by the desertion of the 
 water, or the collection of sand and other substances. (Angell on 
 Tide Water, p. 267, and cases.) 
 
 If at the time of a grant bounding on a stream, it was navi- 
 gable, the rights of the grantee will continue the same, and no 
 greater, although, by the operation of artificial constructions— a 
 dam, for-example — the stream has ceased to be navigable. (The 
 People vs. Tibbetts, ut supra.) 
 
 [e] Litoral rights on innavigable streams. 
 
 The phrase "innavigable" is here used in the strict sense 
 of the term, viz., waters not influenced by the oceanic tides. 
 Such is the sense in which our Court of Appeals has used the 
 term.* 
 
 It will at once be seen that, in this acceptation, those great 
 fresh-water rivers, and masses of water, which are to be found in 
 the interior of our country, are innavigable. Yet commerce has 
 covered them with thousands of vessels. 
 
 Accordingly great questions soon arose as to rights in these 
 waters, and the rights attached to the ownership of lands upon 
 their banks. 
 
 ' Emans vs. TurnbuU, 2 John. Rep. 313 ; Phillips vs. Rhodes, 1 Metcalf, 322. 
 
 = Chapman vs. Kimball, 9 Con. Rep. 38. See Lowe vs. Govett, 23 Eng. Com. Law 
 Rep. 263. 
 
 = Ibid. 
 
 * The meaning of this term — ^the influence of oceanic tides — is well shown in the 
 cases of Peyroux vs. Howard, "7 Peters' U". S. Rep. 324, and Lapish vs. The Bangor 
 Bank, 8 Greenleaf (Maine) Rep. 85. 
 
202 INJUNCTION. [§ 219. 
 
 In our State, the case of the Commissioners of the Canal Fund 
 vs. Kempshall (26 "Wendell, 404), is the leading authority. The 
 question related to rights on the Genesee Eiver. It was held, 
 that the bed of fresh-water rivers, to the middle of the stream, 
 belongs to the owners of the adjacent banks. If navigable 
 (in the sense of bearing vessels for trade), the rights of the 
 owners are subject to the servitude of the public interest for pas- 
 sage or navigation. The owners are, however, entitled to the 
 usufruct of the waters flowing in the rivers, as appurtenant to the 
 fee of the adjoining banks ; and for an interruption, even by the 
 exercise 'of the right of eminent domain by the State, compensa- 
 tion should be made. 
 
 The complete right to the enjoyment of the waters for milling, 
 or any other purpose to which water or its mechanical power is 
 applicable, is appurtenant to the ownership of the soil and banks. 
 The only limitation to that right is, that the waters shall not be 
 used, diverted, or detained, so as to infringe upon the same and 
 equal rights of use and enjoyment of other fluvial or riparian pro- 
 prietors. 
 
 In Child vs. Starr (4 Hill's Eep. 369), Chancellor "Walworth 
 considered that the Commissioners of the Canal Fund vs. Kemp- 
 shall settled that the common-law rule prevailed as to streams 
 above tide-water ; that the riparian proprietor was prima facie 
 the owner of the alveus or bed of the river, adjoining his land, to 
 the middle or bed of the stream ; that is, where the terms of his 
 grant did not show that he was limited. 
 
 In Lorman vs. Benson, in the Supreme Court of Michigan, 
 January, 1860, the subject was extensively examined. 
 
 The question related to the rights of riparian proprietors on 
 the water communication, known as the Detroit Eiver. It was 
 held— 
 
 1. That there were no tide-waters in the State, and, therefore, 
 no waters which, by the technical meaning of the term " naviga- 
 ble" at common law, would come Avithin it. But there were 
 many thousand miles of external boundary waters, which are open 
 to navigation, in the popular sense, and many interior streams 
 valuable for public convenience and passage. 
 
 2. The inquiry was, whether the circumstances of the country 
 required the common-law rule to be so modified as to apply the 
 
§ 219.] INJITNCTION. 203 
 
 doctrines belonging to tide-waters, navigable in the common-law 
 sense, to those waters which were beyond the tidal influences. 
 
 3. The distinction known at the common law between tideless 
 and tidal streams was adverted to, and commented upon. In each 
 kind of stream, the rights of navigation were the same, and so far 
 the public at large had no interest whatever in the question of 
 ownership of the bed of the water. 
 
 4. All rivers of sufficient capacity for useful navigation were 
 public rivers, and subject to the general rights of citizens, like 
 highways. And the adjoining owners had the same rights as in 
 other fresh-water streams. 
 
 The rule in Mississippi appears to be, that the rights of own- 
 ers, whose property bounds upon the large public rivers, are sub- 
 ordinate to the rights of the State to use and appropriate such 
 streams to the public good in promotion of navigation. While 
 the right of such owners may exist as against any interference by 
 private persons, it cannot be admitted as to the paramount juris- 
 diction of the State. The State having power to improve the 
 navigation of her rivers, may judge of the expediency of doing 
 so, and may execute, and provide for executing, such works of 
 public improvement. (Commissioners of Homochito River vs. 
 "Withers, 29 Mississ. Eep. ; 1 Gushing, 21.) 
 
 In Iowa it is held, that the proprietor of land upon the bank 
 of the Mississippi Kiver does not own to the middle of the chan- 
 nel, nor to low water, but to high water only, that is, to the edge 
 of the bank ; and the whole bed of the river is in the public. 
 (Dwight vs. Keokuk, 4 Iowa Eep. 199.) 
 
 The distinction between navigable and other streams, and the 
 practical results of the distinction, are well stated in the case of 
 Stuart vs. Clark (2 Swanston Tennessee Eep. 9) : " The common- 
 law criterion of a navigable stream is the flow and reflux of the 
 tide ; the civil-law criterion is the capability and suitableness of 
 the stream for the purposes of navigation in the ordinary state of 
 the water. In Tennessee the civil-law criterion has been adopted. 
 But in all other respects the principles of the common law, regu- 
 lating and defining the rights of the public and of the riparian 
 owners, are unchanged. 
 
 " A river is navigable in the ordinary acceptation of the term, 
 
204 INJUNCTION. • [§ 219. 
 
 when it is of sufBcient depth naturally for valuable floatage, such 
 as rafts, flat-boats, and vessels o:^ light draft. 
 
 " If a river be navigable in the legal sense {infiuenced ly the 
 tides), the soil covered by the water, as well as the use of the 
 stream, belong to the public. If it be navigable only in the ordi- 
 nary sense, the ownership of the bed of the stream is in the ripa- 
 rian proprietors, and the public have an easement therein for the 
 purposes of transportation and commercial intercourse. If the 
 stream be so shallow as to be unfit for such purposes of transpor- 
 tation and commerce, the right both of property and use are 
 wholly and absolutely in the owners of the adjoining land." 
 
 A similar rule prevails in Wisconsin. ("Walker vs. Shepard- 
 son (4 "Wisconsin Eep. 486.) 
 
 Fishing. — A very important distinction in relation to streams 
 of the character now considered, exists in our State. The adjoin- 
 ing proprietors have the exclusive right of fishing. This was 
 decided in Hooker vs. Cummings (20 Johns. Eep. 90). I know 
 of no case impeaching this authority, or modifying the rule. 
 
 The rights of proprietors of the adjacent land, growing out of 
 alluvion, derelict, or the formation of islands, is the same in rela- 
 tion to streams of the nature now considered, as to those strictly 
 navigable. See ante p. 200. 
 
 [f] Ferries. 
 
 In the work of the author upon the Eights of the Corpora- 
 tion of ISTew York as Proprietors (vol. 2, p. 155), a large number 
 of cases were examined, and the following propositions deduced, 
 as best supported by authority. 
 
 Ferries can be granted at the common law by the sovereign 
 power, and riparian proprietors are not, by virtue of their pos- 
 session, entitled to the ferry franchise. 
 
 The statute of New York (1 E. S. 526, § 23), requiring that 
 the license be first ofl'ered to the owner of the lands through 
 which the adjoining highway runs, recognized the common law 
 rule. 
 
 The grant, unless limited by some general law, or by the 
 terms of the grant jtself, is necessarily exclusive to the extent of 
 the privilege conferred. The right cannot be taken back or trans- 
 ferred to another, until the public interests or welfare shall de- 
 
§ 219.] INJUNCTION. 205 
 
 mand its resumption, and provision shall have been made for just 
 compensation to the owner.' 
 
 The State exercises the right, either by empowering a par- 
 ticular body to grant a license to keep a ferry, or by an express 
 grant of a ferry. 
 
 The former implies no transfer of property to the grantees of 
 the power. The latter imparts a right of property more or less 
 exclusive or restricted, according to the terms of the grant. 
 
 An express grant with fixed defi.ned limits, is necessarily ex- 
 clusive within those limits. 
 
 The implication in grants from a sovereign is against the 
 grantee. The language is to be strictly construed. But with 
 this qualification the grant of a right to, or to establish, ferries 
 from one point on a river to another, with words of perpetuity, 
 or their equivalent — without restriction, and without a reserva- 
 tion of a power over it, is as absolute a grant of property as a 
 patent for a tract of land. 
 
 Where the limits are not fixed, the question, what shall be 
 deemed an unwarrantable interference with vested rights, and 
 what a just exercise of a necessarily reserved power, must depend 
 on the facts attending each particular case. 
 
 [g] Agreements — acquiescence. 
 
 If the parties' rights and relations 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 question of damage or injury. The court will not 
 consider the proposition that the change is more beneficial to the 
 plaintiffs. 
 
 Thus in Dickenson vs. The Grand Junction Canal Comp. (19 
 En. L. & Eq. Eep. -287), a contract was entered into between a 
 canal company and the plaintiffs, owners of paper mills, as to the 
 mode of the enjoyment of the water, by which the canal and the 
 mills were supplied. The company did acts in violation of the 
 contract. Held, that it was no answer to a bill for a perpetual 
 injunction to say, that the acts would not be injurious, or would 
 
 ' See Benaon vs. The Mayor, 1 Barbour, 223. Mayor vs. Benaon, cited Davies' 
 Ed. Laws, Appendix, 1264. The People vs. The Mayor, 32 Barbour, 102. 
 
206 INJUNCTION. [§ 219. 
 
 be even beneficial to the plaintiffs. The court allowed an injunc- 
 tion although no evidence of actual damage was given. 
 
 The comments upon this case, which are to be found in Chase- 
 more vs. Eichards (7 House of Lords' Cases, 349), do not affect 
 the above proposition. On the contrary, it is stated that the de- 
 cision could be rested upon the breach of the covenant. 
 
 In Wells vs. Chapman (4 Sandf. Ch. Eep. 313 ; 13 Barbour, 
 561), a raceway had been built at the joint expense of cotermin- 
 ous owners of mills, and there was a covenant that one should 
 use water for a paper mill, and for no other purpose. Held, that 
 the party could not convert it into a cotton mill, and retain the 
 easement ; but could be restrained to the use of the water for a 
 paper mill. 
 
 Acquiescence for a period of time in the use of water, which 
 might have been prohibited if promptly appliied for, on the 
 ground of its polluting the stream as it reached the plaintiffs, and 
 did an injury to them, is an answer to an application for an in- 
 junction. 
 
 In "Wood vs. Sutcliffe (8 En. L. & Eq. Eep. 217), an injunction 
 was denied in a strong case of pollution of the water ,*because from 
 1845 to 1850 the defendant had been allowed to construct and 
 use his dye works, without the plaintiff's interference. 
 
 To a similar point is the Eochdale Canal Comp. vs. King (7 
 En. L. & Eq. Eep. 208 ; 21 ibid. p. 177). 
 
 So acquiescence in the diversion of water for upwards of three 
 years will be a ground for refusing an injunction until the right 
 is established at law. 
 
 This was held, in Eeid vs. Gifford (6 Johnson Ch. Eep. 19), 
 where the plaintiff had been in possession of a mill and water 
 works at the outlet of a lake, for over twenty years, and the de- 
 fendant had made a tunnel five years before bill filed, by which 
 he drew off the water to his own mill erected below, and deprived 
 the plaintiff of the use of the water sufficient for his own mill. 
 The chancellor relied upon Weller vs. Smeaton (1 Cox. Ca. 102). 
 
 So in The Water Lot Co. vs. Bucks (5 Geor. Eep. 576), in a 
 conveyance by A. to B., the latter was restricted to the privilege 
 of erecting and running a saw mill or saw mills on the premises. 
 After B. had incurred considerable expense in the construction of 
 a building to be used for another purpose, the court refused to 
 
§ 219.]- INJUNCTION. 207 
 
 enjoin him, no sufficient excuse being given for tlie plaintiff's 
 delaj in applying. 
 
 In Carlyon vs. Lovering (40 En. L. & Eq. Eep. 448), the court 
 say: "The plaintiff, as a riparian proprietor, has the right to 
 have the water of his natural stream run through his land in its 
 accustomed purity, without being polluted by any riparian pro- 
 prietor or others higher up the stream, but that right he may 
 abandon, by allowing a user of twenty or forty years, or he may 
 grant the privilege to an owner higher up the stream for his ad- 
 vantage, of invading that right to the detriment of the water 
 flowing through the plaintiff's land. "We can see no reason why 
 such a privilege, though injurious to the plaintiff to a great 
 extent, might not be granted. In the case of "Wright vs. "Wil- 
 liams (1 Meeson & "Welsby, 7T), pleas of a similar kind as the 
 present were held good on demurrer. The privilege was plead 
 as a prescriptive right, and was held also good as a local cus- 
 tom." 
 
 Sampson vs. Hoddenott (38 En. L. & Eq. 241), was as follows: 
 " The plaintiff had immemorially enjoyed the benefit of irrigat- 
 ing certain of his meadows with the water of the river Teis, sub- 
 ject, however, to the right of the miller at "Westmill to detain 
 the water for the use of his mill. Although the natural flow of 
 the river was prevented by the exercise of this right, yet the 
 water was allowed to come down at such times as that the plain- 
 tiff was enabled to irrigate his meadows effectually. But the 
 defendant had, for the purpose of irrigating his own adjacent 
 land, diverted the water after it had passed the mill, and before 
 it reached the plaintiff's meadows. Although the quantity which 
 finally reached the plaintiff's meadows was not sensibly dimin- 
 ished, yet the effect was that the water was detained by the pro- 
 cess of irrigation, and did not arrive till so late in the day that 
 the plaintiff was deprived of the power to use it fully. The 
 question was, whether such a diversion and detaining of the water 
 was actionable. 
 
 "It appears to us, that all persons having lands on the margin 
 of a flowing stream have by nature certain rights to use the 
 water of that stream, whether they exercise those rights or not, 
 and that they may begin to exercise them whenever they will. 
 By usage they may acquire a right to the use of water not justi- 
 
208 INJUNCTION. [§ 219. 
 
 fied by their natural rights ; but such acquired right has no ope- 
 ration against the natural rights of the land OM'ners higher up 
 the stream, unless the user by which it was acquired affects the 
 use that he himself has made of the stream, or has power to use 
 it, so as to raise the presumption of a grant, and to render the 
 tenement above a servient tenement. The question between the 
 parties is reduced to this single point : Has the defendant used 
 the water as any riparian propi'ietor may do, or has he gone be- 
 yond that ? " 
 
 In Thomas vs. Braekney (17 Barbour Eep. 654), the defend- 
 ant, owning a tannery, threw large quantities of bark into the 
 stream, which floated down in to "the plaintiff's pond below, filling 
 his race, getting into his flume, and injuring his grist mill. It 
 was considered that the question of a reasonable or unreasonable 
 use of the water was for a jury. 
 
 [h] Interference by injunction. 
 
 The general jurisdiction of a court of equity to interfere by 
 injunction in these cases of water rights, is asserted in the courts 
 of IS'ew York, in the cases of Gardner vs. The village of New- 
 burgh (2 John. Ch. Eep. 165), Arthur vs. Case (1 Paige, 447), 
 Belknap vs. Trimble (3 Paige, 577), and Olmsted m. Loomis (5 
 Selden, 423). 
 
 I avail myself of an abstract of the points involved in the 
 three first cases, made by Justice Parker in Olmsted vs. Loomis. 
 
 " It is not necessary 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 in such 
 a case first to establish a right at law. In Gardner vs. The Yil- 
 lage of Newburgh, it was decided, that the Court of Chancery 
 had a concurrent jurisdiction with courts of law, in a case of pri- 
 vate nuisance by diverting or obstructing an ancient water course, 
 and might issue an injunction to prevent the interruption, though 
 the plaintiff had not established his title at law ; and Chancellor 
 Kent said : The foundation of jurisdiction in such a case is the 
 necessity of a preventive remedy, when great and immediate mis- 
 chief or material injury would arise to the comfort and enjoy- 
 ment of property. In that case, an injunction was granted on the 
 grounds that the right to the use of the stream of which the 
 plairitiff was in actual possession, had been immemorially en- 
 
§ 219.] mjTJNCTioN. 209 
 
 joyed, and that the plaintiff would receive immediate and great 
 injury, by the suspension of all those works on his land which 
 were set in operation by the water. 
 
 " In Arthur vs. Case (1 Paige, 44Y), it was held that where hy- 
 draulic works were erected on both sides of a private stream, the 
 owners of the works were each entitled to an equal share of the 
 water ; and that, if the owner of the mills on either side at- 
 tempted to deprive the other of the use of his share of the water, 
 of which he had been in the quiet enjoyment, and thus to destroy 
 his mills, an injunction would be granted, as the injury might be 
 irreparable. In Belknap vs. Trimble (3 Paige, 577), the com- 
 plainants were the owners of different mills situated upon the 
 same stream, which mills depended upon the particular use of 
 the water of a pond at the head of the stream, for the running 
 thereof, and such mill owners had been in the uninterrupted use 
 of the water in a particular manner, for more than twenty years. 
 It was held that the Court of Chancery had jurisdiction to estab- 
 lish their rights to such use of the waters of the pond, and to 
 restrain the defendant from disturbing them in the enjoyment 
 thereof. It was decided in that case, that where different mill 
 owners have a common right to an artificial use of water for 
 their respective mills, the Court of Chancery had jurisdiction so 
 to regnlate the common use of the water as to preserve the rights 
 of each. 
 
 " The eases where a Court of Chancery has refused to enter- 
 tain jurisdiction, and has sent a plaintiff to a court of law for 
 relief, are, where the rights interfered with have not been long 
 previously enjoyed, as ia Van Bergen vs. Yan Bergen (3 John. 
 Ch. Rep. 282), or where the act of diversion complained of took 
 place more than three years before the bill filed, as in Reid vs. 
 Gifford (6 John. Ch. Rep. 19). See, also, 1 Cox Ca. 102 ; Brown's 
 Case, 2 Vesey, 214." 
 
 In Olmsted vs. Loomis (5 Selden, 423, reversing the Supreme 
 Court in 6 Barbour, 153), an agreement (notwithstanding certain 
 ambiguous and seemingly inconsistent language) was construed 
 to define the quantity of water granted, and the quantity re- 
 tained or reserved by the grantor, and not to limit the mode or 
 purposes for which the water was granted or reserved. The 
 owner of land — of a race way through it — and of a forge for the 
 14 
 
210 ' INJUNCTION. [§ 219. 
 
 manufacture of iron situate at the lower end of the race, granted 
 a part of the land, " with the privilege of digging from the head 
 of said race to said land, for the purpose of carrying water suffi- 
 cient to carry an oil mill" — the grantees " to have the privilege 
 of the water that is not wanted for a forge and two blacksmith's 
 bellows." 
 
 The bill was filed by one making title under the grantor, for 
 an injunction on the ground of the erection of a paper mill, and 
 the excessive use of the water by the defendants. 
 
 The court below dismissed the bill on the ground of there 
 being a complete remedy at law. The Court of Appeals reversed 
 the decision, holding that the jurisdiction of a Court of Chan- 
 cery was well established. Ruggles, Justice, notices the supe- 
 rior advantages of settling the complicated questions as to the 
 quantity of water each party was entitled to, by a reference, in- 
 stead of a jury. 
 
 The judges agreed that there was a concurrent remedy at law 
 and in chancery, in cases of this description, and that it was not 
 necessary first to establish a title at law. 
 
 See further The Winnipesogee Lake Co. vs. Walter (9 Foster, 
 433), and Dwindle vs. Veazie (44 Maine, 16Y). 
 
 The French Law is so clear and comprehensive upon the im- 
 portant subject of water rights, that I have thought a translation 
 of Touillier's masterly dissertation upon it, would be of service 
 to the profession. It will be found in the Appendix A. 
 
 L 7. Covenants relating to real property. 
 
 [aJ As to mode of using. 
 
 If there is a plain agreement between parties as to the man- 
 ner of using real property, the breach of that agreement may, in 
 general, be enjoined ; and the court will not listen to any consid- 
 erations as to the advantage or utility of the change. 
 
 In Steward vs. Winters (4 Sandf. Ch. Eep. 689), a lease of a 
 store contained a clause that it should be occupied for the regular 
 dry good jobbing business, and no other. The lessee commenced 
 selling goods at auction. The bill contained allegations that 
 other tenants of the complainant were annoyed by the auction 
 sales, and that they were injuriously afiecting his interests in re- 
 spect to other tenements. The Yice-Chancellor had no doubt that 
 
§ 219.] mjuNCTioN. ■ 211 
 
 the business of selling goods at auction was prohibited by the 
 lease. He observed: "It is said, that the remedy at law for 
 danaages is adequate ; and that so far from there being an irrep- 
 arable injury by the continuance of the breach of the covenant, 
 it is shown that there can be no injury at all. 
 
 " I apprehend we are not to regard the subject in the manner 
 indicated by the latter proposition. 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 deiine the injury for himself, and the 
 party contracting with him must abide by the definition." 
 
 As to the objection that there was an adequate remedy at law, 
 he said : " I think that, in a case 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 continuing 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. 
 
 In Howard vs. Ellis (4 Sandf. Supr. Ct. Rep. 369), the case 
 was of a lease to a party of a building, with a covenant that it 
 should not be used for any other purpose than a jewelry and 
 fancy goods store. It being held, on the facts, that a party who 
 got into possession stood in the same situation as the lessee, an 
 injunction was granted restraining the use of the tenement as a 
 hat store. 
 
 The case of Seymour vs. McDonald (4 Sandf. Ch. Eep. 502) 
 may also be cited to this point. The owner of two adjoining 
 rural lots, bounding on a river, and erecting a house on one for 
 his own use, sold the other for a like purpose. The grantee 
 covenanted that he would not use the lot in a way or for any busi 
 ness which might be in any manner offensive to the occupant of 
 the adjoining property, or that would tend to deteriorate or lessen 
 its value, and would not use it for a stone quarry. The defend- 
 
212 INJUNCTION. [§ 219. 
 
 ants were building a wharf on their lot, and a railway to it from 
 a stone quarry of theit own, the wharf being but 200 feet distant 
 from the complainant's windows. It was held to be offensive 
 within the covenant, and restrained. The facility of landing noc- 
 turnal debauchees was also dwelt upon. 
 
 So, in Barron vs. Eichards (3 Ed. Ch. Eep. 96 ; on appeal, 8 
 Paige, 351) ; the owner of a block of ground in New York divid- 
 ed it into lots, and sold them from time to time to different in- 
 dividuals, and the conveyances of the lots contained mutual 
 covenants between the grantor and grantees respectively against 
 the erection of any livery-stable, slaughter-house, glue-factory, 
 &c., upon any part of the lots conveyed, or any other manufactory, 
 trade, or business, which might be any wise offensive to the 
 neighboring inhabitants. It was held that the covenants in the 
 deeds of the different lots were for the mutual benefit and pro- 
 tection of all the purchasers of lots in the block ; and, although 
 the complainant could not maintain a suit at law on the covenant 
 in his own name, and would, perhaps, be only entitled to nominal 
 damages if the suit was brought in the name of Mercein, this 
 court could give full effect to the covenant by a suit in the name 
 of the party for whose benefit and protection the covenant was 
 intended. The covenant in the deed to the defendants operated 
 in favor of the neighboring owners and inhabitants. The use of 
 the lot as a coal-yard was, upon the allegations of the bill, held 
 to be offensive. The case arose on demurrer. 
 
 See, also, Dickerson vs. The Grand Junction Canal Co., 19 
 En. L. & Eq. Rep. 287. 
 
 In Mann vs. Stephens (15 Simons' Eep. 377), it was held 
 
 that although a covenant did not run with the land, so that an 
 
 assignee was not be affected by it, yet, if he had at the time of 
 
 his purchase notice of the covenant, equity would restrain him 
 
 ' from violating it. 
 
 A., being seized of a house, and also of a piece of land, sold 
 the house to B., with a covenant that no building should be 
 erected on the land ; afterwards he sold the land to C, and took 
 a counter-covenant from him. The house became vested in D., 
 and the land in E. ; but E. had notice of both covenants. E. was 
 restrained from building, in breach of the original covenant. 
 
 In Piggott vs. Piggott (1 John. Chy. Cases, 311, before Yice- 
 
§ 219.] rNJTTNCTION. 213 
 
 Chancellor Stuart, 1859), there was a covenant in certain building 
 leases, that the lessee should not put up any buildings within a 
 specified distance from other buildings, comprised in the same 
 lease. The lessee made sub-leases of the latter buildings, assuring 
 the parties that there could be no erections within the specified 
 distance, as he was under a restriction in the lease he held. He 
 afterwards surrendered his own lease, and took a new one, omit- 
 ting the covenant of restriction. He then commenced erecting 
 within the space pointed out. It was established, and by parol 
 testimony, that he had given the assurances in question. An in- 
 junction was allowed. 
 
 [b] Affirmative and negative covenants. 
 
 There is a series of cases in which the question has arisen 
 whether, when there are affirmative covenants and negative cove- 
 nants in the sam^ instrument, and the former cannot be enforced, 
 the breach of the latter may, in any circumstances, be restrained. 
 
 Of this description are the cases of Gervais vs. Edwards (2 
 Drury & Warr. 80) ; Hills vs. CroU (2 Phillips, 60) ; Dictrischen 
 m. Capburn (2 Phillips, 52) ; Eolfe vs. Eolfe (15 Simons, 88) ; 
 and Lumley vs. "Wagner (13 En. L. & Eq. Eep. 252). 
 
 It appears to be settled by the weight of authority, that where 
 the contract contains covenants to do certain acts, and to abstain 
 from doing certain other acts, the court has jurisdiction to restrain 
 the breach of the negative covenants, although there may not be 
 jurisdiction to specifically perform the affirmative covenants. 
 But in such cases the court will decline to interfere, where the 
 jurisdiction cannot be beneficially exercised, as in a case where 
 the consideration for the negative covenant of the one party is the 
 affirmative covenant of the other party, which latter the court 
 cannot specifically perform. 
 
 This is the decision in Lumley vs. Wagner, in 1852, the last 
 case I have met with. 
 
 Mr. Drewry, in his supplement to his work on Injunctions 
 (p. 64), thinks that such was the result of the cases cited by him 
 down to 1849. 
 
 The case of Eolfe vs. Eolfe (15 Simons, 88), will illustrate the 
 rule as thus stated. Eeferriijg to certain cases which had been 
 cited, the Vice-Chancellor said : The bills in the cases cited asked 
 for the specific performance of an agreement, and injunctions 
 
214 mjuNCTioN. [§ 219. 
 
 •were sought as only ancillary to that relief; but the bill in the 
 present ease asked merely for an injunction. The agreement con- 
 sisted of two distinct parts : one by William Eolfe, not to carry 
 on the business of a tailor within a. certain distance from the 
 Standard, on Cornhill ; the other by Francis, to employ "William 
 as a cutter, and pay him a certain amount, as long as he should 
 carry on the business, and William should conduct himself dili- 
 gently and faithfully. The court certainly could not enforce this 
 latter part of the contract, for Francis could put an end to it 
 ■when he pleased. 
 
 The injunction was granted to restrain William from carrying 
 on the business within the prohibited district, either alone or with 
 any other person. 
 
 [c] Building covenants. 
 
 Another class of cases relates to what are termed building 
 covenants running with the land ; such as covenants between 
 several adjoining or neighboring owners to build upon a uniform 
 plan, with a specified frontage or on designated lines. 
 
 Tulk vs. Moxhay (11 Beavan, 571 ; 2 Phillips, 774), deter- 
 mined that it was competent for persons to bind their lands per- 
 petually by covenants of this description. 
 
 The Lord Chancellor in this case said, " That this court has 
 jurisdiction to enforce a contract between the owner of land and 
 his neighbor purchasing a part of it, that the latter shall either 
 use or abstain from using the land purchased, in a particular way, 
 is what I never knew disputed. The owner of certain houses in 
 the square sells the land adjoining, with a covenant from the pur- 
 chaser not to use it for any other purpose than as a Square Gar- 
 den. It is now contended, not that the vendee could violate the 
 contract, but that he might sell the piece of land, and that the 
 purchaser from him may violate it. It is said that the covenant, 
 " being one which does not run with thfe land, this court cannot en- 
 force it. 
 
 " In Whitman vs. Gibson, cited in Cole vs. Sims, the question 
 was not whether the covenant runs with the land, but whether 
 the party shall be permitted to use the land in a manner incon- 
 sistent with the contract entered into by his vendor, and with 
 notice of which he purchased. If an equity is attached to the 
 property by an owner, no one purchasing with notice of that 
 
§ 219.] INJUNCTION. 215 
 
 equity can stand in a different situation from the party from 
 whom he purchased." 
 
 In Kankin -ys. Huskisson (5 Simons, 13), the Commissioners of 
 Woods were restrained from building on a part of the site of Carl- 
 ton Palace, in violation of one of the terms of an agreement en- 
 tered into by them with the plaintiffs for a building lease of an 
 adjoining part of the site. In this case the injunction was of a 
 mandatory character, forbidding the defendants from permitting 
 such part of the buildings as had been already erected on the plot 
 of ground from remaining thereon. 
 
 'Every person who derives title from such original owners is 
 bound by the agreement, provided he have notice of it ; and it 
 will be inferred that he has notice, if the instrument is referred 
 to in deeds which make out his title. 
 
 In Whitman vs. Gibson, cited in Cole vs. Sims (23 En. L. & 
 Eq. Eep. 588, n.), a deed was executed between the owner of the 
 land and purchasers of different lots, by which they covenanted, 
 each with the others, that they would build in a certain specified 
 manner, and neither of them would allow his premises to be occu- 
 pied for certain purposes. The title of both parties to the action 
 was derived from the original covenanting parties, who had only 
 covenanted with one another, and not for their assigns ; but the 
 defendant, having notice of the covenant, was held bound by it. 
 
 In Cole vs. Sims {ut supra) an injunction was granted in a 
 similar case, against proceeding with or erecting any building in 
 front of a particular line, being in continuation of the front of the 
 plaintiff 's house. 
 
 That the defendant had notice of an agreement of his grantor 
 for the adoption of a line, was deduced from the fact that a con- 
 veyance under which he took referred to such agreement. 
 
 [d] Penalty and liquidated damages. 
 
 In cases in which the performance of covenants is secured by 
 a penalty, the existence of such a remedy will not prevent the in- 
 terference by injunction ; otherwise in the case of a sum settled as 
 liquidated damages. 
 
 Thus, in Burne vs. Madden (Lloyd & Gold, 493), where a lease 
 contained a covenant against plowing or digging up any part of 
 the demised premises, and in case the lessee did so, he should pay 
 £5 for every cart of clay or sand which he should so dig up, and 
 
216 INJUNCTION. [§ 219. 
 
 also £5 in addition to the rent for every acre, so long as any part 
 thereof should continue to be broken up or plowed up, — it was 
 held, that the sum mentioned, being in the nature of a penalty, 
 and not of liquidated damages, the court could restrain the lessee 
 from violating the covenant. 
 
 A similar decision was made in Cole vs. Sims, ut supra. The 
 peculiar terms of the clause as to. damages was held not to be 
 enough to displace the jurisdiction to interfere by injunction. 
 
 In Barnes m. McAllister (18 Howard Pr. Eep. 534), one ground 
 for denying an injunction was, that the parties had settled the 
 amount of compensation. 
 
 I. 8. Sale of land. — Aninjunction will not be granted in case of 
 a bill for a specific performance, against letting or selling the prop- 
 erty where the validity of the contract is disputed. The Us pen- 
 dens affords a sufficient protection to the plaintiff. (Turner vs. 
 Wright, 4 Beavan, 40.) 
 
 In Spiller vs. Spiller (3 Swanston, 556), the Lord Chancellor 
 said : He wished it to be understood as his opinion, that, in gen- 
 eral, on a bill for specific performance of an agreement to sell, the 
 plaintiff is not entitled to restrain the owner from dealing with 
 his property. It would operate to control the rights of owner- 
 ship, although the agreement was such as could not be performed. 
 Under the circumstances, of a refusal to surrender copy-hold, after 
 an assignment to trustees of his estate, and the vendor being in- 
 solvent, an injunction was allowed. 
 
 In Echliff vs. Baldwin (16 Vesey, 267), and in Curtis vs. The 
 Marquis of Buckingham (3 Yes. & Bea. 168), injunctions for this 
 purpose were allowed, to prevent the possible necessity of making 
 new parties. In neither case does it appear that the contract was 
 contested. See also The Shrewsbury and Chester vs. The Shrews- 
 bury and Birmingham E. R. Co , 1 Simons' N. S. 410. 
 
§ 219.] iNJUNCTiosr. 217 
 
 II. In relation to personal property. 
 
 1. Transfer of commercial paper. 
 
 Where a bill or note has been obtained under circumstances 
 which constitute a defence between the immediate parties, or 
 when, after the making of such an instrument, the grounds of a 
 valid defence arise, the maker or indorser may restrain the trans- 
 fer of such instrument. 
 
 This right to call for the interference of the court is founded 
 upon the rule that such defences will not prove available if the 
 note passes, before maturity, into the hands of a 'bona-fide holder. 
 
 A leading case is The Bishop of "Winchester vs. Foumier (2 
 Vesey, Sen. 445). A note was obtained, the body of which 
 was in the handwriting of the defendant, but the signature in that 
 of the plaintiff. It was found, upon proofs, to have been ob- 
 tained by gross fraud and imposition. It was ordered to be 
 brought into court and deposited with the Eegister ; yet leave 
 was given to bring an action on it within a fixed time — otherwise 
 it was to be surrendered. 
 
 In Baker vs. Loman (cited 2 Yesey, Sen. 447), the bill was to 
 have the consideration of a note set forth. It appeared to have 
 been given in consideration of a bill of ^ exchange, which was a 
 false one. The Master of the Bolls enjoined proceedings, and 
 ordered the note to be delivered to the Register, to abide the fur- 
 ther order. 
 
 In Smith vs. Haytwell (Ambler, 66), the bill was to be relieved 
 against a negotiable promissory note, given on a marriage brokage 
 agreement. The Lord Chancellor said : The plaintiff would other- 
 wise be without remedy, if the note was disposed of for value, 
 and without notice. If a note is taken when over-due, and there 
 are suspicious circumstances tending to show that the maker is 
 not liable upon it, an injunction will be allowed. Although the 
 defence might be taken at law, the concurrent jurisdiction of a 
 court of equity is not lost. (Hodgson vs. Murray, 2 Simons, 515.) 
 
 In Minshaw vs. Jordan (cited 2 Br. Oh. Eep. 17, n. by coun- 
 sel), the bill was to have a note delivered up, and for an injunc- 
 tion to stay proceedings upon it at law. It had been obtained 
 from the plaintiff in consideration of the defendant's inducing the 
 plaintiff's father to make a will in his favor, when he was inclined 
 to disinherit him. The injunction and bill were retained, with lib- 
 
218 INJUNCTION. [§ 219. 
 
 erty to the defendant to bring an action at law. A verdict was 
 had in such action for the plaintiff in chancery, and the note was 
 decreed to be delivered up. 
 
 vs. Adams (Young's Exch. Eep. 117) is an example of a 
 
 case where the holder of bills, knowing that they were given for 
 the accommodation of the indorsers, could not recover against the 
 acceptors. An injunction, granted at the commencement of the 
 action, was made perpetual, and the bills were decreed to be de- 
 livered up. 
 
 In Lloyd vs. Gordon (2 Swanston, 180), the injunction was 
 granted to restrain the indorsing, negotiating, or parting with 
 three bills of exchange accepted by the defendant for a sum won 
 at play. See, also, vs. Blackwood, 3 Anstruther, 851. 
 
 In "Whittingham vs. Burgoyne (3 Anstruther, 900), it was de- 
 clared that the cases clearly establish the rule that, where a man 
 sells his interest to procure for another an office of trust or service 
 under the crown, it is a contract of turpitude, and cognizable by 
 the j urisdiction of equity. 
 
 In Foley and Dick vs. Carlon, and nine others (1 Young's Rep. 
 373), the bill was by the acceptor and drawer of four bills against 
 the payee and several successive indorsers, charged with a knowl- 
 edge of the fraud of the payee, for an injunction and delivery; 
 and the bill ^as sustained on demurrer. 
 
 If a bill or note is given by a member of a firm for his indi- 
 vidual debt, and taken by one who has knowledge of that fact, 
 the court will restrain its negotiation, though value has been 
 given. 
 
 Hood vs. Aston (1 Kussell Chy. Bep. 412), is a leading au- 
 thority upon this point. It is sufficient to quote Lord Eldon's 
 language, and only to refer to other cases : 
 
 " The mere circumstance that a partner gives a partnership 
 bill for his separate debt, may or may not lay a ground for the 
 issuing of an injunction against its negotiation ; for the person 
 who takes it may or may not have some reason for supposing 
 {hat his debtor had a right or authority so to use the partnership 
 name. But where it appears that an individual partner, indebted 
 to the partnership, being unable to pay his separate bill holden 
 by his bankers, substitutes for it by a negotiation with them, a 
 partnership security, made and given without the consent or 
 knowledge lof his co-partners, and the bankers are aware that it 
 
§ 219.] INJUNCTION. 219 
 
 is so given — that is a case which comes within the principle npon 
 which the court has always been in the habit of interfering by 
 injunction." 
 
 See also Jervis vs. "White (Y Yesey, 413). 
 
 In Clark vs. Gallagher (20 Howard's Pr. Eep. 308), an injunc- 
 tion against negotiating a check was granted, where the check 
 had been given to take up a previous check, loaned by the drawer 
 to the person receiving it, who transferred it to a third person for 
 an antecedent debt. The latter was held not to be a purchaser 
 for value. See Farrington vs. The Frankford Bank (31 Barbour, 
 183). 
 
 2. Transfer of Stocks. — There are various cases in which 
 a transfer of stocks, or a payment of dividends upon them, will 
 be forbidden. 
 
 Thus, if an agent invests the funds of his principal and his 
 own in stocks indiscriminately, and is guilty of neglect or fraud 
 towards his principal, an injunction will be allowed against the 
 transfer of any portion until a discrimination can be made. 
 
 This is the result of the decision in Lord Chedworth vs. Ed- 
 wards (8 Yesey, 46), where an agent and steward had to his 
 account at a banker's a very heavy amount of stock, the bulk of 
 which appeared on the affidavits to have come from his employ- 
 er's funds received by him. Lord Eldon noticed, that the mis- 
 chief arising from granting an injunction as to the whole arose 
 from the wrongful act of the defendant in mixing the stocks. 
 
 If the apparent title to stocks is in a deceased bankrupt, and 
 the administratrix is about to sell them out, with a vjew to remit 
 the proceeds to a foreign country, the court will, on application 
 of the assignees, prohibit the transfer. (Stead vs. Clay, 4 Kus- 
 sell, 550.) 
 
 Where a company has fraudulently issued false certificates 
 of stock, largely beyond the actual capital, and has be'eome insol- 
 vent, an injunction will be allowed restraining such company and 
 its officers from permitting a transfer of any stock, until a deter- 
 mination of the matter. See the statement of Justice Morris in 
 The People vs. The Parker Yein Company, and others (10 LIow- 
 ard's Pr. Eep. 186.) 
 
 In Underwood vs. The New York and New Haven K. E. Co. 
 (17 Howard, 537), an injunction was granted, restraining the 
 defendants from paying a dividend declared by them, upon 
 
220 INJUNCTIOM-. [§ 219. 
 
 any of the stock of the corporation, to any stockholders except 
 such as could be ascertained to hold none of the spurious stock 
 issued by the transfer agent ; and from making any future divi- 
 dend until the question of who were genuine stockholders was 
 settled by a competent court. 
 
 The facts and circumstances of that case will be found de- 
 tailed in The Mechanics' Bank m. The IST. Y. and N. H. E. E. 
 Co. (3 Kernan, 599.) 
 
 In Glasse vs. The Marshall and The India Company (15 Si- 
 mons, 11), an injunction was granted to restrain the defendant 
 Marshall from receiving, and the company from paying, the 
 amount of certain bonds obtained surreptitiously. 
 
 In Faweet vs. Laune (1 Drewry & Smale, 192, 1860), the mo- 
 tion was to restrain th^ directors of the Union Bank of London 
 from declaring apy dividend to the stockholders except out of 
 profits and surplus funds, and from paying a dividend which had 
 been previously declared. The bill was by a single shareholder. 
 The court considered that under the deed of settlement, the plaintiff 
 had a standing in court, and the injunction was granted as to 
 future dividends, but denied as to that already declared. The 
 shareholders had acquired as to that a legal right, which could 
 not be interfered with, unless they were parties to the action. 
 Carlisle vs. The Eastern Eailway Company (1 MeNaughten and 
 Gordon, 689), was referred to. 
 
 The course of proceedings where an injunction only is wanted 
 against a bank or eo rporation to restrain the parting with stock 
 or funds, is ^tated in Hoffman's Chancery Practice, vol. 1, p. 81. 
 The cases of Eldridge vs. Eldridge, Eoss vs. Shearer, and other 
 authorities were cited. The practice prevailed in New York of 
 making the institutions parties, praying the injunction and sub- 
 poena against them, and serving a notice that no other relief was 
 asked than the restraint, and no answer required. The plaintiff 
 would thus be exempted from costs, if the defendants needlessly 
 defended. 
 
 3. Sailing of vessels. — The power of the court to restrain the 
 sailing of a ship was touched upon in the case of the East India 
 Company vs. Sandys', and Marasco vs. Boiton." These eases are 
 of very little moment on this question, though cited by the text 
 writers. 
 
 ' 2 Ch. Cases, 16S. "2 Veaey, Sen. 112. 
 
§ 219.] INJUNCTION. 221 
 
 In Haly vs. Goodson (2 Merivale, 71), it was ruled, that al- 
 though the Court of Admiralty had jurisdiction to restrain the 
 sailing of a vessel, on the application of a part owner, where his 
 share was ascertained, yet if not ascertained, there was a concur- 
 rent jurisdiction in the Court of Chancery. The share and the 
 proper security would be ascertained, and an injunction granted 
 in the interim. 
 
 And in Christie vs. Craig (2 Merivale, 13Y), the power was 
 impliedly admitted ; the plaintiff coming so late that the court 
 would not grant him assistance. 
 
 In Goodheart vs. Lowe (2 Jac. & "Walker, 349), Lord Eldon 
 refused to stop a vessel from sailing, on the application of the 
 owner of goods who had a right of stoppage in transitu. He 
 doubted if there was power, in any case, to stop goods in tran- 
 situ. 
 
 In Davis vs. Johnson (4 Simons, 539), a part owner of a ves- 
 sel, fitted out by the other owner and let to the East India Com- 
 pany, had her arrested in Admiralty, and compelled the other to 
 give security. The ship sailed, and returned home. It was held 
 that the part owner taking the security, was not entitled to any 
 part of the profits, but was bound to pay his share of the repairs 
 and outfit previous and up to the time of the arrest. 
 
 The text writers cite the cases from Merivale's Keports, as 
 declaring the law upon this subject. (Abbott on Shipping, 104 ; 
 Collyer on Partnership, § 1210 ; Willard's Eq. Jurisdiction, 
 p. 362.) 
 
 It is stated that the dissenting owner who arrests the vessel in 
 Admiralty, is not responsible for repairs or outfit. I presume 
 this means for expenditures subsequent to the arrest. The above 
 case of Davis vs. Johnson ut supra, holds him responsible for pre- 
 vious disbursements. (See Abbott on Shipping, 100 ; Flanders 
 on Shipping, §§ 367, 368.) 
 
 In Buddington -ys. Stewart (14 Conn. 401), a share of one 
 part owner of a vessel was attached by his creditor. It was 
 ruled that the others could send her to sea, securing the creditor's 
 interest. See, also, Kodich vs. Hinkley, (8 Greenleaf, 274.) 
 
 In Lidgett vs. Williams (4 Hare, 456), a motion was made to 
 restrain the defendant from proceeding with a ship to any other 
 place than Liverpool, or such other place as the plaintiff should 
 
222 INJUNCTION. [§ 219. 
 
 direct, and from selling or disposing of lier cargo of guano, or 
 any part thereof, except to the plaintiffs. The court laid down 
 the following rules in deciding the motion. 
 
 " The obligations of a captain are of a high order. He is not 
 prima facie allowed to make any profit by the use of the ship. 
 The owners may claim any such benefit. By attempting it, he 
 places himself in a position adverse to his duty, which is, to exert 
 all his powers to make the ship profitable to her owners. (Gard- 
 ner vs. McCutcheon, 4 Beavan, 542.) If there is a charter, that 
 duty of the master is transferred to the charterer. And he is 
 bound to use, on behalf of the latter, the same diligence and 
 fidelity as towards the owner. Generally speaking, therefore, he 
 cannot trade with the ship on his own account, even when part 
 owner." 
 
 But as in that case the agents of the charterer failed to procure 
 the cargo intended, and the master by great diligence did obtain 
 it, it was held that the cargo was on the owner's account, not the 
 charterer's. An injunction founded on this conclusion was 
 granted, as to so much of the guano as had been obtained by the 
 efforts of the plaintiff's agent. 
 
 In Furniss vs. Brown (8 Howard Pr. Eep. 59), the court said, 
 that as joint owner of the vessel in question, Furniss was entitled 
 to an injunction. In cases of disputes between joint owners, we 
 adopt and apply in this court tlie rule of Admiralty ; and that is, 
 to give the majority in interest the possession and control ; and 
 where there is not a majority, order the vessel to be sold. The 
 injunction granted restrained the defendants from removing a 
 steamship beyond the jurisdiction. 
 
 In Lewis vs. Dodge (lY Howard's Pr. Eep. 229), a party 
 claimed a lien on a fund for salvage services ; and others, who 
 had performed similar services, claimed also a portion of the fund. 
 The action sought an equitable apportionment of it among the 
 parties, and an injunction was sustained to restrain the interfer- 
 ence with it by others claiming a lien and possession, they being 
 irresponsible. The proceeds were ordered to be paid into the 
 hands of a receiver during the suit. 
 
 4. Contested probate. — By a statute of this State the surrogate 
 is authorized, in case of a contest relative to the proof of a will, or 
 by reason of absence of an executor named in a will, delay in 
 
§ 219.] INJUNCTION-. 223 
 
 granting, letters is necessarily produced, to issue special letters of 
 administration to one or more persons, authorizing the collection 
 and preservation of the goods of the deceased. (Laws of 1837, p. 
 578, § 23.) Every such collector shall have authority to collect 
 the goods, chattels, and debts of the deceased, and for that pur- 
 pose to maintain suits as an administrator. 
 
 Administration ■pendente lite was granted also by the English 
 Ecclesiastical Courts. The officer was merely an officer of the 
 court, and held the property only till the suit was determined. 
 As soon as the litigation ended, he was bound to pay over the 
 funds and deliver the property to those found entitled. A moni- 
 tion to pay and deliver would be granted. (In the matter of the 
 goods of Susanna Graves, 1 Haggard's Eep. 313.) 
 
 By an act of 38 Geo. III., c. 87, where proceedings were pend- 
 ing in chancery concerning a will, and the executor was absent, 
 an administrator pendente lite might be appointed by the Eccle- 
 siastical Courts. This, however, did not extend to any other cases 
 of absence. (In the goods of Thomas Davies, 2 Haggard, 79.) 
 
 If the executor was absent from the country, there seemed to 
 be no remedy. Mr. Dayton considers that there is no power to 
 appoint an administrator ad colligendum, except as prescribed by 
 the statute. This is before probate granted. (Office of Surro- 
 gates, p. 64.) As to the powers of an a.6iVam\&tx2iiov pendente lite, 
 see Adair vs. Shaw, 1 Sch. & Lefroy, 254. 
 
 The Court of Chancery exercised the jurisdiction of preserving 
 the property by injunction and a receiver, while a contest as to 
 probate was going on in the Ecclesiastical Tribunals. 
 
 In Atkinson vs. Hensliaw (2 Yesey & Bea. 85), the plaintiffs 
 were named executors of a deceased partner by his will, and 
 sought to obtain letters, which was opposed by the other named 
 executor and the surviving partners. The contest was proceeding 
 in a Consistory Court. A bill was filed for an injunction and 
 receiver. Lord Eldon stated the jurisdiction to have been plain, 
 before Walker vs. Wollaston (2 P. Wms. 576). That determined 
 that an administrator pendente lite had power to sue for debts ; 
 and the establishment of that rule was not sufficient to take away 
 such ancient jurisdiction. 
 
 In Ball vs. Oliver (2 Yes. & Bea. 96), the Yice-Chancellor 
 acted upon this doctrine. The defendants had obtained adminis- 
 
224 iNJDNonoN. [§ 219. 
 
 tration, which the plaintiffs sought to set aside hy a suit in the 
 Ecclesiastical Court. The bill charged that the defendants had 
 got possession of the personal estate, were insolvent, and prayed 
 an account, and injunction pending the suit. The last was granted, 
 although insolvency was denied. 
 
 In Connor vs. Connor (15 Simons, 598), it was held that the 
 mere pendency of a suit to recall letters was not sufScient ground 
 for the interference of the court, where no insolvency or misuse 
 of the assets was shown. 
 
 In Mootrie vs. Hunt (4 Bradford's Kep. 173), Mx. Surrogate 
 Bradford granted letters to collect, where he had issued letters of 
 probate, but an appeal had been lodged, and was pending. 
 
 5. Specific chattels. — If the right to a specific chattel is clear, 
 a court of equity will, under certain circumstances, interpose to 
 protect its enjoyment, or prevent its being injured. 
 
 Thus, in The Duke of Somerset vs. Cookson (3 Pr. Wms. 390), 
 an old altar piece of silver, of classic character, valuable for its 
 antiquity and rarity, came into the defendant's possession, with 
 notice of the plaintiff's title. Although the plaintiff could have 
 recovered in trover, Lord Thurlow held him to be entitled to re- 
 lief in equity. 
 
 In Fells vs. Head (3 Yesey, 70), a society had for some time 
 had possession of a silver tobacco box, inclosed in two silver 
 cases, with several engravings of public transactions and heads 
 of eminent persons. They were kept by the overseer for the time 
 being, and as such overseer the defendant obtained them. He re- 
 fused to surrender them unless his accounts were passed. A bill 
 for their surrender was sustained. They had been delivered to a 
 master, under an order. The party held it coupled with a trust to 
 deliver it at a certain time. Tliere was a clear jurisdiction to com- 
 pel the execution of such trust. 
 
 And in Wood vs. Bancliff (3 Hare, 308), the bill was for the 
 delivery of specific chattels deposited by the plaintiff with his 
 agent, which the latter fraudulently contracted to assign to an- 
 other, who advertised them for sale, for an injunction to restrain 
 the sale, and any disposition of the articles, the goods being still 
 in the possession of the agent. A demurrer was overruled. The 
 chattels were ordinary furniture and effects. It was insisted that 
 the interference of the court was only granted as to articles of a 
 
§ 219.] INJUNCTION. 225 
 
 peculiar character, as articles of curiosity, antiquity, or hereditary 
 estimation, to which the pretiwm affectionis applied. But the 
 Vice-Chancellor held the plaintiff to be clearly entitled to be pro- 
 tected against the wrongful act of her agent, and the concerted 
 fraud. 
 
 In Lady Arundel vs. Phipps (10 Yesey, 148), the wife having 
 separate estate, purchased out of it from her husband, certain 
 books, paintings, and statues, in the name of trustees, for her own 
 use. In an action between her and her husband's creditors, these 
 articles were seized by the sheriff. Lord Eldon restrained the 
 sale, pending the further litigation of the title. 
 
 6. In aid of action. — In the case of Erpstein m. Berg and 
 others (13 Howard's Pr. Kep. 91), the action was to recover per- 
 sonal property. The plaintiff had deposited furniture with the 
 defendant Berg to sell, and share the profits. He sold to another 
 defendant, with a fraudulent intent to cheat the plaintiff. Such 
 defendant knew of the want of title. Mr. Justice Davies sus- 
 tained an injunction preventing the defendants from interfering 
 with, transferring, or incumbering the property. Furniss m. 
 Brown (8 Howard, 59), was cited and relied upon. 
 
 m. — Melating to productions of mind and a/rt. 
 
 This subject is discussed under the following heads : 
 
 1. Patents. 
 
 2. Copyrights. 
 
 3. Unpublished manuscripts. 
 
 4. Private letters. 
 
 5. Public lectures. 
 
 [a] Editor and publisher. 
 
 [b] Libellous publications. 
 
 [c] Immorality of works. 
 
 6. Secrets of trade. 
 
 7. Trade-marks. 
 
 8. Miscellaneous — 
 
 [a] Editor and publisher. 
 
 [b] Libellous publications. 
 
 [c] Immorality of works. 
 
 15 
 
226 INJUNCTION. [§ 219. 
 
 1. Patents. — Mr. Justice Willard, in his work upon Equity 
 Jurisprudence (p. 283), has stated the statutes and leading cases 
 which bear upon this subject. The Constitution empowers Con- 
 gress to secure to authors and inventors the exclusive right to 
 their respective writings and discoveries. The judicial power 
 extends to all cases in law or equity, arising under the Constitu- 
 tions and laws of the United States. Congress has exercised the 
 power by passing various acts for the protection of authors and 
 inventors. By the act of Congress of 15th February, 1819, origi- 
 nal jurisdiction, at law and in equity, is given to the Circuit 
 Courts of the United States, of all actions, suits, controversies, 
 and cases arising under any law of the United States, granting or 
 confirming to authors or inventors the exclusive right to their 
 respective writings, inventions, or discoveries ; with power to 
 grant injunctions, according to the course and principles of courts 
 of equity, to prevent the violation of any rights of authors or 
 inventors. , The act of July 4, 1836, makes all such actions and 
 controversies cognizable in the Circuit Oburts, and District Courts 
 having the powers and jurisdiction of Circuit Courts. 
 
 In Dudley vs. Mayhew (3 Comstock's Eep. 9), a bill had been 
 filed by an assignee of a patent for a particular district, to restrain 
 the defendant from manufacturing and' selling the stove which 
 was the subject of the patent. A Vice-Chan cellor had granted 
 an injunction, which the Chancellor had sustained on appeal. 
 
 The Court of Appeals held that, at common law, and exclu- 
 sive of the act of Congress, authors and inventors acquire no 
 exclusive right to the benefit of their writings and discoveries. 
 That the courts of this State had no jurisdiction to restrain the 
 infringement of a patent ' right ; nor could a consent confer it. 
 The Federal courts had exclusive jurisdiction. "Where a statute 
 confers a right, and prescribes adequate means for protecting it, 
 the proprietor of the right is confined to his statutory remedy. 
 
 In Gibson vs. Woolworth (8 Paige, 132), Chancellor "Wal- 
 worth decided, that the courts of the United States had exclusive 
 jurisdiction, under the law of July 4, 1836, as to interfering 
 patents, in cases where the court, under that law, is authorized to 
 declare a patent inoperative and void, either wholly or in part, 
 or as to any particular portion or district of the United States. 
 
 But the State courts appear to have the power to consider 
 the validity of patents, when the question arises collaterally. 
 
§ 219.] rNJUNCTioN. 22T 
 
 In Burrall vs. Jewett (2 Paige's Eep. 134), the Chancellor did 
 consider the validity of a patent, concluded it was void, and 
 ordered an agreement and note given upon the faith of its validity 
 to be canceled. See, however, his subsequent decision in Gibson 
 vs. Woolworth, ut supra, and Dudley vs. Mayhew. 
 
 2. Copyrights. 
 
 It would be foreign to the scope of this work to state minutely 
 the decisions upon the law of copyrights or patents, as to when 
 an injunction will be granted. One leading authority contains 
 some rules and principles of general importance and utility. 
 
 In Jefferys vs. Boosey (30 En. L. & Eq. Eep. 1, House of 
 Lords), it was held that the object of the statute of Anne, cap. 19, 
 was to encojirage literature among British subjects ; and such 
 description included such foreigners as, by residence in England, 
 owed the crown a temporary allegiance. Any such foreigner, 
 first publishing his work there, was an author within the meaning 
 of the statute, no matter where his work was composed, or whether 
 he came to the country solely with a view to its publication. 
 Copyright commences by publication ; if, at that time, the foreign 
 author is not in the country, he is not a person protected by the 
 statute. An Englishman resident abroad will have copyright in a 
 work of his own first published in England. But when a foreign- 
 er composed a work in his own country, and assigned the right in 
 it to another foreigner, who brought the composition to England, 
 and assigned it to an Englishman, who first published it, it was 
 held that no copyright existed. 
 
 The judges differed upon the great question of copyright at 
 common law. Lord St. Leonards and Lord Brougham held that 
 it did not exist ; it was purely the creature of the statute. 
 
 3. Unpublished manuscripts. 
 
 It may be considered as settled that, by the common law, an 
 author had a right of property in his unpublished manuscripts, 
 whatever was their nature, whether intended for publication or 
 not, and whether of pecuniary value or not. (Woolsey vs. Judd, 
 4 Duer, 379, and the leading cases there cited ; Bartlett vs. Crit- 
 tenden, 5 McLean, 32 ; Curtis on Copyright, page 84.) 
 
 This right is not affected by the statutes as to copyright. The 
 latter operate in the case of a publication merely. The publica- 
 tion by an author is a dedication to the public use. The right of 
 property in a manuscript can be transferred or abandoned, like 
 
223 
 
 INJUNC'ITON. [§ 219. 
 
 the right in any other property. Publication is such an aban- 
 donment. The statutes operate to continue the right, which be- 
 fore was unlimited, for^ a definite period after publication, upon 
 compliance with certain provisions. 
 
 In Prince Albert vs. Strand (1 Hall & Twell's Chy. Eep. 1, 
 1849), it was held that the maker and owner of etchings, which 
 had never been exhibited or published, and of which no impres- 
 sions had been made, except for private use, but impressions of 
 which had come into the hands of others by surreptitious means, 
 was entitled to an injunction, not only to restrain the exhibition of 
 such impressions and publishing copies, but also from publishing 
 a catalogue compiled by themselves, in which an enumeration 
 and description of the etchings was contained. 
 
 The act of Congress of I'ebruary 3, 1851, provides, in the 
 ninth section, that " any person who shall print or publish any 
 manuscript whatever without the consent of the author first ob- 
 tained in writing, shall be liable to an action for damages. And 
 the several courts of the United States, empowered to grant in- 
 junctions to prevent the violation of the rights of authors, are 
 hereby empowered to grant injunctions in like manner, according 
 to the principles of equity, to restrain the publication of any 
 manuscript as aforesaid. 
 
 It was doubted, in Woolsey vs. Judd (4 Duer, 379), whether 
 this ninth section extended to the publication of private letters 
 without the consent of the owner. That question, however, was 
 for the determination of the courts of the United States. But if 
 the State courts had jurisdiction of such a publication before the 
 Federal Constitution was adopted, they possess it still. See this 
 case fully stated, post, title " Publication of Letters." 
 
 In Bartlett vs. Crittenden (5 McLean's Eep. 32), it was held 
 that private letters were within the ninth section. 
 
 In this case it was also held that the common-law right of 
 property in a manuscript was also protected by the ninth section 
 of the act of Congress above cited ; and if the whole, or any im- 
 portant part of a work be taken and printed. Chancery will enjoin 
 its publication, on the application of the author, or his legal 
 representatives. 
 
 On this subject, the rule is the same as to unpublished as to 
 published matter. The question of piracy does not depend upon 
 the quantity, but upon the value of the matter taken. 
 
§ 219.] mjTJNCTioir. 229 
 
 In Bohun vs. Bogue (10 Jurist, 420), a very small portion of 
 the plaintiff's work had been used. The defendant stated that 
 what he had rejected was worthless. The marrow of the plaintiff's 
 production had been nsed, and an injunction was granted. 
 
 In Campbell vs. Scott (11 Simons, 31), whole passages were 
 taken from the plaintiff's book. The defendant insisted that it 
 was trivial in quantity, was used in illustration, and could not in- 
 jure the plaintiff's sale. The court thought that the passages 
 formed part of the substratum of the defendant's work ; there 
 was clearly an injury, and the damnum might be presumed. An 
 injunction was granted. 
 
 The rule in the instances of Encyclopedias, Dictionaries, and 
 similar works, was laid down by Lord Eldon, in Mawman vs. 
 Tegg (2 Eussell, 386). "When the court sees that the piratical 
 part is such that, if removed, it would destroy the whole, an in- 
 junction might be granted against the whole ; but the court would 
 rarely grant an injunction against the whole, without ascertain- 
 ing, by inspection or otherwise, the quantity of matter pirated. 
 The best evidence of piratical copying was, that the blunders 
 of the original book were transcribed into the one accused. If a 
 number of such are found, the presumption arose of the same 
 being the case as to passages in which there were no blunders. 
 
 In Bramwell vs. Halcomb (3 Mylne & Craig, 737), the court 
 repeated the doctrine, that it was the value and quality of what 
 was taken, that constituted piracy. , 
 
 See further Saunders vs. Smith (3 Mylne & Craig, 711) ; Touson 
 vs. "Walker (3 Swanston, 672) ; Lewis vs. Fullarton (2 Beavan, 6) ; 
 Sweet vs. Benning, (30 En. L. & Eq. Eep. 461) ; Drewry on In- 
 junctions, 205, 206. 
 
 In the Att'y-Gen. vs. Strange (13 Jurist, 109), a party had ob- 
 tained a copy of the etchings of another without his consent, and 
 was about publishing a catalogue of them. He was restrained. 
 Lord Cottenham said : " It was to make known to the public, 
 more or less, the unpublished works and compositions of the 
 author, which he is entitled to keep for his private use and 
 pleasure." 
 
 Foreign author. — The right of a foreign author to his unpub- 
 lished manuscript is as clear, and will be equally protected, as 
 that of a native citizen. 
 
230 INJUNCTION. [§ 219, 
 
 This was conceded in Jeffreys vs. Boosey (30 En. L. & Eq. 
 Rep. 1). It was strongly asserted by Justice Earl, and scarcely 
 less so by Justice Coleridge. 
 
 In Eedfield vs. Middleton (Special Term, Superior Court, Oc- 
 tober, 1860), Justice Hoffman adverted to the fact that the law of 
 Congress as to copyright was the same as the English law. E'one 
 but a citizen could avail himself of it. (Curtis on Copyright, p. 
 14:1.) " But the right of a foreign author to his unpublished manu- 
 script was just as clear, and equally the subject of judicial pro- 
 tection, as the right of a citizen. As to the right of the latter, it 
 was needless to refer to any other authority than that of Woolsey 
 vs. Judd (4 Duer, 385) ; as to the former, I recognize the propo- 
 sitions of Justice Earl, in Jefferys vs. Boosey, as clear law. The 
 right will be enforced for an alien as well as for a native author, 
 it being a personal right, resting on principles common to all na- 
 tions who read. 
 
 "The case of Taylor vs. Carpenter was before Mr. Justice 
 Story (3 Story's Rep. 450), and before Mr. Justice "Woodbury (2 
 "Woodbury & Minot, 1). In each instance, as well as in our own 
 courts (2 Sandf. Chy. Rep. 603), protection was given to the trade- 
 mark of a foreigner. The protection of his unpublished manu- 
 script should be at least as decided." 
 
 4. Publication of letters. — ^This subject was so thoroughly ex- 
 amined by Mr. Justice Duer, delivering the opinion of the Supe- 
 rior Court of New York, in Woolsey vs. Judd (4 Duer's Rep. 379), 
 as to render a reference to any prior case unnecessary. 
 
 The object of an injunction was to restrain the defendants 
 from publishing in a newspaper, of which they were proprietors 
 or publishers, a letter which the plaintiff had written and for- 
 warded to one Mr. Croswell at St. Louis. The complaint alleged 
 that the letter was wholly private in its character, and that the 
 defendants had, by some unlawful means, possessed themselves 
 of a copy of it. 
 
 The defendants, by answer, denied that the letter was of a pri- 
 vate nature, or that they had unlawfully obtained it. A copy 
 had been sent to them through the post office, with a note from a 
 person that they might use it as they should think proper. The 
 name of such person was not stated. They insisted that the let- 
 ter was not a literary production, nor of any value to the plaintiff 
 
§ 219.] INJUNCTION. 231 
 
 as such ; and hence, that the court had no authority to restrain 
 its publication. 
 
 Upon the affidavits it appeared, that the defendants claimed 
 the right to publish the letter, for the purpose of fixing upon the 
 plaintiff and his correspondent Crowell, the imputation of being 
 the authors or instigators of certain abusive publications, relative 
 to a religious society called The American Bible Union, its agents 
 and friends. 
 
 The points decided by the Superior Court were : 
 
 1st. That State courts retain their jurisdiction in all cases of 
 which they had originally cognizance; and there are only two 
 cases in which the jurisdiction of the courts of the United States 
 may be regarded as exclusive. First, when it is made exclusive 
 by express terms, or by necessary construction of the Constitu- 
 tion ; second, when an act of Congress confers a jurisdiction that 
 before its passage could not have been exercised at all. 
 
 2d. That the question was, whether the publication of private 
 letters, without the consent of the writer, even when the letters 
 have been sent to, and are in possession of, his correspondent, is 
 an invasion of an exclusive right of property which remains in 
 the writer. 
 
 3d. An undoubted exclusive right to an unpublished manu- 
 script existed at the common law, in its author. This right was 
 not affected by the statute as to copyright. The publication 
 to the world, was the subject of the statute, and that continued 
 the before general unlimited right of property for a definite 
 period. 
 
 4:th. The right was wholly independent, either of an intention 
 to publish the manuscript, or of any pecuniary value, or intrinsic 
 value as a composition. " That exclusive right to a manuscript 
 yet unpublished, rests upon the same foundation as that which 
 sustains every other description or species of property. Its sole 
 foundation is " the right which every man has to the exclusive 
 possession and control of the products of his own labor." (Cur- 
 tis on Copyright, p. 84.) 
 
 5th. There was no just ground for distinction between the 
 case of an unpublished manuscript (of matter possibly intended 
 for publication), and private letters. 
 
 6th. The transmission of letters does not vest the whole prop- 
 
232 INJUNCTION. [§ 219. 
 
 erty in the receiver, or operate as an absolute gift. They cannot 
 be published without the consent of the writer, either by the 
 pai'ty to whom they are addressed, or by others. The exceptions 
 stated by Justice Story, as to the right of the receiver, are recog- 
 nized. (2 Story's Eep., pp. 110, 111.) These are hereafter stated. 
 
 7th. The cases of Wetmore vs. Scoville (3 Edw. Ch. Rep. 
 515), and of Hoyt vs. Mackenzie (3 Barb. Ch. Eep. 314), were 
 considered not to be law. 
 
 There is one point but slightly touched upon in this decision, 
 which is of moment. It relates to the character and extent of 
 the right of the receiver of letters. 
 
 The learned judge speaks in two instances, of the exclusive 
 right of property being in the writer. He shows that the right 
 of publication, without the consent of the writer, is not in the 
 receiver, with the excepted cases of where it is necessary to 
 maintain his action or defence in courts of justice: or where he 
 is aspersed by the writer in a public manner ; when he may pub- 
 lish such parts of the letters as are necessary to vindicate him- 
 self. 
 
 But I presume, that the receiver has also such a right of prop- 
 erty as will enable him to restrain a piratical publication by an- 
 other. The possession of the mere paper is in him. The com- 
 munication has been made to him. Whatever of the mind — -the 
 intellectual product — is found in it, has been placed in his power; 
 has been published to him. A joint property is thus made out, 
 so far, at least, as to justify the action of the receiver, to protect 
 the property from others. 
 
 In Eyre vs. Higbee (35 Barbour, 502), it was held that pri- 
 vate letters were not assets in the hands of the receiver's admin- 
 istrator. They could not be sold by him as assets for payment 
 of debts. 
 
 The letters in question were written by General "Washington 
 to Colonel Lear, his military secretary. The receiver had a 
 property in them which, on his death, went to his administrator. 
 But there was a joint property in them with the writer, so as to 
 prevent their becoming assets. 
 
 For forty years the letters had been in the possession of the 
 receiver's widow. This was enough to vest the property in 
 her — to warrant the presumption of a transfer. Under her, the 
 
§219.] INJUNCTION. 233 
 
 defendant had obtained possession. The administrator of the 
 receiver, appointed forty-one years after his death, assigned and 
 sold the letters to a party under whom the plaintiff claimed. 
 
 In Palin m. Gathercole (1 Coll. Cases, 565), it was held that 
 
 a receiver of letters would not be permitted to publish them, for 
 
 the purpose of representing to the public as true, what he had, 
 
 ■in legal proceedings upon the very subject, admitted to be false. 
 
 Letters within the act of Congress. — A doubt was expressed in 
 Woolsey vs. Judd whether the published letters were within the 
 meaning of the 9th section of the act of Congress, notwithstand- 
 ing its comprehensive language. 
 
 But in ^^artlett vs. Crittenden (5 McLean's Eep. 34), it was 
 decided that they were included. Tolsan vs. Marsh (2 Story^s 
 Eep. 100) was cited. The case is instructive for its general state- 
 ment, and discussion of the principles on which an author's rights 
 depend. 
 
 5. Public Lectures. — It has been doubted whether a public 
 lecturer could enjoin the publication of his lectures, or notes of 
 the same, without a contract between him and his hearers forbid- 
 ding it. But if pupils attend lectures, there is an implied con- 
 tract that they shall not publish them, or notes of them, without 
 permission. They may make full notes for their own use. In 
 the case cited a person who did not show how he became pos- 
 sessed of the lectures, was presumed to have obtained them from 
 a pupil, and was enjoined. (Abernethy vs. Hutchinson, 3 Law 
 Journal, 209, stated in D.rewry on Injunctions, p. 212. Keported 
 in full in Maugham on Literary Property, 14Y.) 
 
 By a statute of 5 and 6 "William lY. cap. 65, the right of pub- 
 lication is limited to the author, or the person to whom he has 
 sold a copy, in order to deliver the same in any school, seminary, 
 institution, or other place. No person allowed, for fee or reward, 
 to attend a lecture, shall be considered licensed to print, copy, or 
 publish the same. 
 
 In the case of Mott vs. Bell, before the author, as Assistant 
 Vice-Chancellor, 1839, the defendant attended the lectures of the 
 plaintiff upon surgery, for which he paid a certain fee or com- 
 pensation. He commenced the publication of the substance, and 
 to some extent of the language of the lectures, in a public news- 
 
234 INJUNCTION. [§ 219. 
 
 paper. An injunction was allowed. The positions taken to sup- 
 port this decision were as follows : 
 
 By the opinion of probably all judges before and since Miller 
 and Taylor, an author has, at common law, a property in his 
 manuscript, and might obtain redress against any one who de- 
 prived him of it, or, by improperly obtaining a copy, sought to 
 realize a profit by its publication. 
 
 This right, according to present settled law, does not extend 
 beyond publication, except as the right is secured under copyright 
 statutes. 
 
 But it is publication, in the sense of surrender or dedication to 
 the public use, which amounts to such a publication as terminates 
 the original right. And the intention with which an act claimed 
 to amount to such a surrender is done, is a material inquiry. 
 
 A lecturer regularly reading his productions in manuscript to 
 persons paying, directly or indirectly, for the privilege of hearing 
 them, connot be treated as designing a general dedication to the 
 public nse. It is a limited, conditional, and confidential commu- 
 nication. 
 
 It was also held, that the fact of the lecturer nsing notes or 
 heads only in manusci-ipt, so that a large part of the lecture was 
 oral, did not make a difference. 
 
 Mr. Curtis (on Copyright, p. 101), has taken views very simi- 
 lar to those expressed in this case, which was never reported. 
 
 In Wharton vs. Peters (8 Peters U. S. E. 668), the court de- 
 clared unanimously, that no reporter had or could have a copy- 
 right in the opinions delivered by the judges, and the judges 
 could not confer such a right upon a reporter. 
 
 The opinion of Mr. Justice Thompson on this point of pub- 
 lication is very apposite and clear. I presume that the open 
 reading of opinions is an unconditional publication to the world. 
 
 6. Secrets of trade. — ^Whatever doubt may have been thrown 
 upon the question in earlier cases, it is now settled in England, 
 that a party may be restrained from using a secret of trade im- 
 parted to him by an employer ; such as the mode of compound- 
 ing a medicine. 
 
 In Morrison m. Moat (6 Eng. L. & Eq. Eep. 14 ; ibid. 9, 182), 
 Morrison was the inventor of a medicine not patented. Upon 
 entering into partnership with Moat, he bound himself not to 
 
§ 219.] INJUNCTION. 235 
 
 communicate the secret of the mode of compounding to any one 
 hut some future partner ; and Moat bound himself not to commu- 
 nicate it to any one. He did inform his son of it, who used it, 
 and sold the medicine under the same name as Morrison did. He 
 "was enjoined from selling under the name of Morrison's medicine 
 " any medicine compounded by him, and also from compounding 
 any according to the secret, and from making use of such secret 
 in any way." 
 
 Sir George Turner, Yice-Chancellor, went over the authorities 
 very fully. On appeal (9 En. L. & Eq. Eep. 182), the Lord Chan- 
 cellor (Lord Cranworth) said, " the principles that were argued in 
 this case, are principles really not to be called in controversy. 
 There is no doubt whatever that where a party who has a secret 
 in a trade, employs persons under contract, express or implied, 
 or under duty, express or implied, those persons cannot gain the 
 knowledge of that secret, and then set it up against their em- 
 ployer." 
 
 Li Youatt vs. Winyard (1 Jac. & "Wal. 395), a person, pos- 
 sessed of a secret medicine, employed another to assist him in his 
 business generally, under an agreement that he was not to be 
 taught the mode of composing such medicines. The assistant 
 obtained a knowledge of the composition by breach of trust, and 
 was restrained by injunction from using or communicating that 
 composition. 
 
 But, in Canham vs. Jones (2 Yesey & Bea. 218), where the 
 bill alleged that the defendant made and sold a medicine identical 
 in composition and quality with the secret medicine of the plain- 
 tiff, a demurrer for want of equity was allowed. There was 
 no right of property, properly so called, in a secret medical 
 recipe. 
 
 See, also, Newberry vs. James (2 Merivale, 446). 
 
 In Williams vs. "Williams (3 Merivale, 157), the plaintiff agreed 
 to take the defendant into partnership for the manufacture of 
 medicine made under a secret recipe, instructed him in the secret, 
 and put him in possession of the medicines. The court restrained 
 the defendant from selling the medicine, or interfering in the 
 management of the business without the consent of the other. As 
 to the secret, if the defendant swore that it was not communicated 
 by the plaintiff, he would not be restrained from divulging it ; 
 
■236 iNJirNCTioN. [§ 219. 
 
 and if he had already divulged it, an injunction would be of no 
 use. 
 
 In Evitt vs. Price (1 Simons, 483), the plaintiffs were attorneys, 
 and had for several years employed the defendant as an account- 
 ant, and intrusted him with the affairs and secrets of the firm, and 
 had free access to their books and papers. He had made contracts 
 from such books and papers, and, threatening to publish, was 
 restrained from communicating the particulars or contents to any 
 person whatever, or any information possessed by him relating to 
 the copartnership, arts, affairs, or the secrets thereof, or the clients 
 thereof, acquired by reason of his employment. 
 
 Carter vs. Palmer (1 Drury & Warren, 722), is to the same 
 point. 
 
 7. Trade-marks. 
 
 I include under the name trade-marks all devices, symbols, 
 designs, names, and emblems, by which a particular commodity 
 is intended to be designated and distinguished, as made or owned 
 by a particular person. The subject has occupied a great deal of 
 judicial investigation. Mr. Upton, of the New York bar, has 
 lately published a valuable treatise upon it.' 
 
 Designs, or trade-marks, may, by an act of Congress of Aug. 
 29, 1842, become the subjects of letters-patent. Mr. Curtis (On 
 Patents, §§ 105, 106) observes : " These are new and original 
 designs for a manufacture of metal and other materials ; for the 
 printing of woolen, silk, cotton, or other fabrics ; for any impres- 
 sion or ornament to be placed on any article of manufacture in 
 marble or other material ; for any new and useful pattern, print, or 
 picture, to be in any way attached to or fixed on any article of 
 manufacture ; for any new or original shape or configuration of 
 any article of manufacture — all such designs not being previously 
 known or used by others. Patents for these subjects are to be 
 issued on the like application and proceedings as those prescribed 
 in other cases of patents, for the term of seven years." 
 
 " The patents thus granted relate to the forms impressed upon 
 the material constituting particular articles of manufacture, and 
 to the marks adopted by tradesmen, whether patterns, prints, or 
 pictures, to distinguish their own manufactures. They thus occu- 
 
 ' Upton's Law of Trade-marks, 1860. 
 
§ 219.] nsrjtTNCTioN. 237 
 
 py a kind of middle ground between copyrights and patents, as 
 patents for useful inventions have heretofore been classed. In- 
 deed, the exclusive right to impress upon matter a particular 
 form, or to affix a particular device to a bale of merchandise, is 
 closely analogous to the exclusive right to print a particular book 
 or engraving, if it is not precisely the same right. The same gen- 
 eral principles, at least, must be resorted to, to determine the 
 identity between two forms of matter, as forms, or between two 
 devices, as devices, which determine the identity of new books or 
 engravings." 
 
 I do not know that the general principles and rules upon this 
 subject, can be found better condensed and expressed, than by 
 Lord Chancellor Cranworth, in Farina vs. Silverlock (39 En. L. 
 &Eq. Eep. 5U). He said: 
 
 " The plaintiff's equity is founded on the jurisdiction of this 
 court to give relief, in the shape of preventive justice, in order to 
 make more effectual a legal right ; the legal right here being a 
 right to have a particular trade-mark to designate a commodity. 
 This right cannot properly be described as a copyright ; it is in fact 
 a right which can be said to exist only and can be tested only by 
 its violation. It is the right which any person, designating his 
 wares or commodities by a particular trade-mark, as it is called, 
 has to prevent others from selling wares which are not his, marked 
 with that trade-mark in order to mislead the public, and so inci- 
 dentally to injure the person who is owner of the trade-mark. 
 Judges may occasionally have erred in the application of the law 
 to particular facts ; but I apprehend that the law is perfectly 
 clear that any one who has adopted a particular mode of desig- 
 nating 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 (so to call it) his trade-mark, and 
 make purchaserybelie^e that it is the manufacture to which that 
 trade-mark was originally applied." 
 
 Following out the inquiry upon this series of propositions, and 
 collating the authorities by the principles thus stated, it is to be 
 observed — 
 
 1st. The court interferes to make more effectual a legal right. 
 
238 INJUNCTION. [§ 219. 
 
 That right is the power to designate a man's own wares or com- 
 modities by a particular mark, which is termed a trade-mark. 
 
 The Lord Chancellor characterizes that which a court is to 
 protect as a legal right. Many judges say, that they cannot un- 
 derstand how there can be any right of property, or, that there is 
 no right of property, in a mark or device. Yet it is obvious, that 
 if the benefit flowing from the use of the mark is to be protected 
 in equity, and may be the subject of an action at law, it is a 
 vested interest, and it is immaterial how it is designated. 
 
 The source of this legal right — the mode of acquiring it — ^is, 
 as I apprehend, invention, or appropriation ; and in either case, 
 a continued user. 
 
 " I have no doubt," says Lord Langdale,' " that another has 
 not a right to use that name or mark for the purposes of deception, 
 and in order to attract to himself that course of trade or that 
 custom which, without that improper act, would have flowed to 
 the person who first used, or was alone in the habit of using, the 
 particular name or mark." 
 
 Millington vs. Fox (3 Mylne & Craig, 338), must rest — indeed, 
 can only be supported — upon the principle of a vested right ac- 
 quired by user. The defendants were free from all fraud — were, 
 in fact, ignorant of the employment of the names and devices by 
 the plaintiffs. 
 
 Hine vs. Lart (10 Jurist, 106) rests upon evidence deemed 
 sufficient by the Vice-Chancellor, of long exclusive user. Mr. 
 Drewry comments upon it, as open to the objection of determin- 
 ing a doubtful legal right without an action at law." But it was 
 for the court to say whether it was doubtful. The power to de- 
 termine for itself cannot be questioned. 
 
 Perry vs. Truefitt (6 Beavan, 66) is a striking example of this 
 point. The question was, whether the plaintiff had a right to the 
 appellation Medicated Mexican Balm, no fraud being imputable 
 to the defendant for using it, joined with his awn name. And 
 this question the' Yice-Ohancellor allowed the plaintiff to try at 
 law, although he would not grant an injunction at once. 
 
 in Fettridge vs. Merchant,' the judge, having brought the 
 
 ' Perry vs. Truefitt, 6 Beavan, 66. 
 ' Supplement to Injunctions, p. 57. 
 ' 4 Abbotts' Keporta. 
 
§ 219.] INJUNCTION. 239 
 
 case down, to the inquiry as to original appropriation and user, 
 and finding the evidence quite doubtful on that point, left it to 
 the plaintiff to establish his legal title on that basis. 
 
 And in the Amoskeag Company vs. Sperry (2 Sandf. Sup. 
 Ct. Kep. 599), it was reserved for trial before a jury in the action, 
 "whether the plaintiff had an exclusive right to the use of the let- 
 ters A. C. A on his tickings. 
 
 I apprehend, then, that when the right is to be tried at law, 
 the first question is, whether the plaintiff had by invention, or 
 appropriation and user, acquired a right to the particular mark. 
 And the next question is that which Justice Bailey put to the 
 jury in Sykes vs. Sykes (3 Barnwell & Cresswell, 641), as to the 
 intent of the defendant in employing the mark. 
 
 Mr. Justice Robertson in the case of Corwin.'us. Daly' appears 
 to some extent to question appropriation or first invention being 
 a test, remarking that if an appellation had been used by another, 
 and then been long abandoned, a party might adopt it himself, 
 and be protected. But it is submitted, that the relinquishment 
 by the first inventor or appropriator, and subsequent adoption by 
 another party, is equivalent to a primary adoption — really rests 
 upon the same principle. 
 
 2d. Lord Cranworth next defines the right to consist in the priv- 
 ilege of designating the party's wares or commodity by a mark 
 termed a trade-mark, which entitles him to prevent others from 
 selling such wares not belonging to the party under such desig- 
 nation. 
 
 The question is, what species or character of appellation or 
 device may become the subject of ownership, so as to give this 
 right of prevention ? 
 
 It is well settled that there can be no such exclusive right to 
 appellations which merely indicate the appropriate name or the 
 relative quality of the article, and which have no relation to the 
 origin or ownership of it. But there is a right to the use of such 
 as were appropriated to designate the true origin or ownership of 
 the fabric. 
 
 This proposition is stated in nearly the language of Justice 
 
 " Superior Court, General Term; cited at length in Upton's Treatise, p. 187. 
 
240 
 
 mjuNCTioN. [§ 219, 
 
 Duer, in The Amoskeag Manufacturing Co. m. Spear (2 Sandf. 
 Sup. Ct. Kep. 599, 606). And Justice Strong, in Stokes vs. Land- 
 graff (17 Barbour, 698), expands it thus : " In respect to words, 
 marks, or devices, which do not denote the goods or property, or 
 particular place of business of a person, but only the nature, 
 kind, or quality of the articles in which he deals, a different rule 
 prevails. No property in such words, marks, or devices can be 
 acquired. There is obviously no good reason why one person 
 should have any better right to use them than another." 
 
 The principle thus stated was applied in the Amoskeag Com- 
 pomy case, thus : The complaint averred that the letters A. C. A 
 on their tickings signified — the first two, Amoskeag Company, 
 and A, best quality. On the other side, it was insisted, that they 
 indicated only that* the ticking to which such label was attached 
 was of the best quality of the manufactory. And this version the 
 court considered to be made out. The court would not allow an 
 injunction to restrain the use of these letters. 
 
 And in Stokes vs. Landgraff (17 Barbour, 608), such words as 
 " Lake," " Cylinder," " New York," were found, upon the affida- 
 vits, to be applied by manufacturers of glass, and understood by 
 dealers as applicable to various qualities. It was not the practice 
 to distinguish the varieties by expressive words or figures. 
 
 And so in Corwin vs. Daly (N. Y. Superior Court, June, 1860, 
 stated fully in Upton on Trade-marks, p. 187), the epithet " Club- 
 House Gin" indicated merely the superior quality of the article, 
 and was disconnected from origin or ownership. 
 
 The simplest case of an appellation or designation which will 
 be protected is, when the party uses his own proper name, in full, 
 or abbreviated, or by initials so used, as that there can be no mis- 
 understanding who is intended. 
 
 Millington vs. Fox (3 Mylne & Craig, 313) is an example of 
 this class. The name " Crowley," and afterwards " Crowley, Nut- 
 tington," were the names of the party, or the firm, and J. H. the 
 name of the principal workman. These names had come to 
 designate the manufactured steel of the plaintiffs. 
 
 Morison vs. Salmon (2 Man. & Gr. 385) is of the same na- 
 ture. The medicine had acquired a reputation under the name 
 of " Morison's Universal Medicine." 
 
§ 219.] mjuNCTiON. 241 
 
 So in Croft vs. Day (7 Beavan, 81), the name placed upon a 
 label on tlie bottles of blacking was " Day & Martin," " 97 High 
 Holborn." The defendant Day was a descendant of the original 
 Day, and associated a person of the name of Martin with him. 
 
 The Brooklyn White Lead Company m. Masury (25 Barbour's 
 Hep. 416) is another example of this class. The plaintiffs had 
 used that name or stamp upon the kegs of white lead manufac- 
 tured by them, for twenty years. The defendant labeled his 
 kegs " Brooklyn White Lead," and was not interfered with. He 
 then used " Brooklyn White Lead and Zinc Company." He had 
 no such company. He was restrained from using the words 
 " Company or Co." 
 
 Whether there was in this case a mere association, or a corpo- 
 ration, does not appear. It is very analogous, however, in either 
 view, to the use of individual names, or the mark. 
 
 Knott vs. Morgan (2 Keen, 213) is also of this class. The 
 plaintiffs' sign on their omnibuses was " Conveyance Company," 
 or " London Conveyance Company." The device of a star and 
 garter, and the color of the dress of the drivers, was also imi- 
 tated. 
 
 Another class of cases is, where the name of the manufacturer 
 is distinctly joined with an appellation, directly expressing own- 
 ership of the article. Whatever may be the nature of that appel- 
 lation, whether fanciful, or chemically or mechanically untrue, or 
 a proper indication of the article itself or its properties, is, I think, 
 immaterial. The plaintiff will be protected. 
 
 Thus, in Gout vs. Aleplogu (6 Beavan, 69, note), the watches 
 of the plaintiff, made for the Turkish market, were marked with 
 his name in Turkish, and the word ^^Pensendede" {warranted or 
 approved.) There was also, K. G. and a crescent, and a sprig and 
 crescent. The defendant used the words Ralph Gout and the 
 Turkish word, and sent his watches also to Constantinople for 
 sale. An injunction against the use of these names and words 
 was granted. 
 
 The leading ease of Taylor vs. Carpenter, in our courts (re- 
 ported 2 Sandf. Ch. Eep. 603), is of a similar character. The 
 designation was " Taylor's Persian Thread." The imitation was 
 of the same title, and also of the form and color of the spools, 
 envelopes, &c. 
 16 
 
212 • INJUNCTION. [§219. 
 
 So in Burnet vs. Thalor,' it was held, that if a man first adopt 
 an appellation before unknown, and use it as indicating what he 
 makes and sells, and by usage has attracted custom, he is entitled 
 to protection. " Burnett's Cocoane," was the title of the plain- 
 tiff's hair wash. " Phalon & Sons' Cocoine," was that of the 
 defendant. An injunction was granted." 
 
 It is quite true that in these cases we have the additional fact 
 of the use of the proper name of the party, as well as his devices. 
 But if the doctrine sometimes advocated is true, the injunctions 
 ought not tb have included the words " Pensendede," or " Per- 
 sian," or " Cocoine," in the cases respectively. 
 
 In "Wolf vs. G-ouland (18 Howard Pr. Kep. 64), Mr. Justice In- 
 graham's language covers the proposition: " When a person forms 
 a new word to designate an article made by him, which has never 
 been used before, he may obtain such a right to that name, as to 
 entitle him to the sole use of it, as against others, who attempt 
 to use it for a similar article. But such an exclusive right can 
 never be successfully claimed of words in common use previously 
 as applicable to similar articles." 
 
 And the evidence in the case satisfied the court the word 
 " Schnapps" was in common use in Schiedam to designate gin. 
 Hence there could be no exclusive right to the phrase " Aromatic 
 Schiedam Schnapps." It was merely the proper name of the 
 article. 
 
 Hine vs. Lart, before Yice-Chancellor Shadwell (10 London 
 Jurist, 101, 1846), is another case of no little pertinence. The 
 right claimed by the plaintiff was to the use of the word " Ethio- 
 pian," in a light gray color, upon black cotton stockings, with 
 certain black lines above it. The imitation by the defendant was 
 very close. Though the evidence as to the plaintiff's right to 
 the mark was unsatisfactory, the fraud of the defendant induced 
 the Yice-Chancellor to refuse to dissolve the common injunction, 
 which had been obtained ; and he directed the plaintiff to bring 
 an action at law to try his right to the mark. 
 
 If the term "Ethiopian" meant merely black, there would 
 have been no right. It was protected because it was fanciful. 
 
 ' Before Mr. Justice Pierrepont, 19 Howard Pr. Rep. 580. 
 ' Judgment was subsequently recovered. 
 
§ 219.] INJUNCTION. 24:3 
 
 It was fictitious, though not foreign to the appearance of the 
 article. 
 
 In "Williams vs. Johnson (1 Bosworth's Eep. 1), the question 
 was left open for the proofs on the trial to determine whether the 
 name " Genuine Yankee Soap" was to be deemed descriptive of 
 the kind of soap which any one may make and sell by its proper 
 name, or terms properly designating the plaintiff's manufacture, 
 and so descriptive of their peculiar skill in making an article in 
 common use by its known generic name of soap. Labels or de- 
 vices similar to those of the plaintiff were used by the defendant ; 
 and an injunction was sustained. 
 
 As the author was one of the judges in the case, it may be 
 proper to say that my own opinion was, that the term " Genuine 
 Yankee Soap " could be the proper subject of appropriation as a 
 trade-mark. It was very proper, however, to allow the question 
 of its adverse appropriation to be tried in the action. The de- 
 cision was submitted to. No order was entered. 
 
 The case of Perry m. Truefitt (6 Beavan, 66), has been much 
 commented upon, and, I apprehend, has been much misunder- 
 stood. A certain unguent, called " Perry's Medicated Mexican 
 Balm," prepared and sold by the plaintiff, had obtained repute. 
 The defendant sold an unguent for the same purpose, called 
 " Truefitt's Medicated Mexican Balm." The evidence showed 
 that the defendant did not attempt to sell his own as the plain- 
 tiff's unguent, or to induce the public to believe so. The ques- 
 tion first was, whether the legal right had been made out. But 
 next, it appeared that the plaintiff had represented his compound 
 to be the work of a German chemist of high reputation. The 
 motion was ordered to stand over, with liberty to the plaintiff to 
 bring an action. Some months afterwards, the bill was dismissed, 
 with the plaintiff's consent. The language of Lord Langdale is, 
 " that the plaintiff's conduct did not give him a claim to the 
 interference of the court, until he had established his legal right, 
 which, however, I do not deny he may have." 
 
 Thus, the false representation merely induced the court to 
 refuse an injunction then. The inference is irresistible that, if the 
 title had been made out at law, the injunction would have been 
 allowed. And if, as matter of law, there could not be a right 
 acquired in such a combination of words as a trade-mark, the 
 
244 INJUNCTION. [§219. 
 
 cause ought not to have been retained, nor any step in it sanc- 
 tioned. 
 
 In Fetridge vs. "Wells (13 Howard's Pr. Eep. 385, and 4 Ab- 
 botts' Eep. 144), Mr. Justice Duer held that a trade-mark right 
 could not be acquired in the term " Balm of a Thousand Flowers," 
 applied to a liquid perfumed soap. Judge Duer said : " It is not 
 necessary to deny that a name may, in some cases, be rightfully 
 used and protected as a trade-mark ; but this is only true when 
 the name is used merely as indicating the true origin or owner- 
 ship of the article offered for sale ; never where it is used to des- 
 ignate the article itself, and has become, by adoption and use, its 
 proper appellation. When a new preparation or compound is 
 offered for sale, a distinctive and specific name must necessarily 
 be given to it. The name thus given to it, no matter when or by 
 whom imposed, becomes, by use, its proper appellation, and 
 passes as such into our common language." 
 
 Mr. Justice Hoffman, in Fetridge vs. Merchant (4 Abbotts' 
 Eep. 158), upon nearly the same facts, thought that this term, 
 " Balm of a Thousand Flowers," could become the subject of an 
 exclusive right. The proper generic term for the article in ques- 
 tion was Liquid Soap, or Perfumed Liquid Soap. This, it might 
 be, could not be appropriated, but a name so purely fanciful and 
 arbitrary could properly be so. 
 
 It appears that the question upon this same article was before 
 one of the courts of Boston (Fetridge vs. Rice) ; and it was also 
 before a court in Maryland. The learned judge in the case in 
 Boston treated the title " as the proper name and appellation of 
 the article." In the ease in Maryland, Judge Giles considered it 
 to be " a fancy name, not one representing the ingredients or 
 composition of the preparation." He concluded that there was 
 no original appropriation by the plaintiff. (4 Abbott, 160.) 
 
 It may be remarked that " when, by adoption and use, a name 
 has become the proper appellation of an article, and has passed 
 as such into our common language," there is no pretence for an 
 exclusive right to such a name. Soap, ointment, are terms of 
 this character. We may go further and say that some terms, 
 such as Castile Soap, though given from its original place of 
 manufacture, has grown to be generic. But a phrase such as the 
 Balm of Gilead, so long the miracle of quack success, was never 
 
§ 219.] INJUNCTION. 245 
 
 known to the language until the inventor appropriated and ap- 
 plied it to his sovereign panacea. Would he, after twenty years' 
 use, have been denied protection from interlopers ? I thinli not. 
 
 So, the " Balm of a Thousand Flowers," of itself, and apart 
 from the point of deception (which is distinct and kept distinct 
 by the Justice Duer), is a term never before used in our language 
 and in the United States, as far as the proofs went, until employed 
 by Dr. Fontaine in 1846. Its use in other languages is alluded 
 to in the report. (4 Abbott, 160.) 
 
 In the case of Genin vs. Chadsey (Superior Court, Special 
 Term, 1861, Hoffman, Justice), the plaintiff, or those from whom 
 he purchased, had made use of the sign "Live and Let Live," at 
 the doors of an eating saloon, No. 214 Broadway, for a period of 
 seventeen years. The defendants, having a saloon next door under 
 another name for about eight years, put up the same sign of 
 " Live and Let Live," at their entrances. The boards were sim- 
 ilar in shape and form. It was considered a clear case of right 
 and violation. The same name was used at three other similar 
 establishments, but at very remote parts of the city. 
 
 The term " Essence of Anchovies " is a marked illustration of 
 the distinction I think exists. That name was the proper name 
 of the article. (Burgess m. Burgess, 17 En. L. & Eq. Eep. 267.) 
 
 Another question appears unsettled, and was discussed by Mr. 
 Justice Duer in Fetridge vs. Wells, and by Mr. Justice Hoffman 
 in Fetridge vs. Merchant ut supra. It is how far the quackery of 
 the plaintiff and his deception of the public by a name false, in 
 the sense of indicating the sources and properties of the article, 
 and gross exaggeration of its benefits, will disentitle a party from 
 staying another palpably plundering his designation. 
 
 The difference between Mr. Justice Duer and Mr. Justice 
 Hoffman upon this point is this : The former holds that if the 
 plaintiff seeks protection for what is untruly represented as a 
 product or combination of certain articles, and is a manifest de- 
 ception of itself, however harmless, it will not be given to him, 
 however gross may be the conduct of the defendant in stealing 
 the name. Because the liquid soap named " Balm of a Thousand 
 Flowers," had no claim whatever to the title indicated, came from 
 flowers only through the indirect mode of the honey extracted 
 by bees, therefore the defendants could use the title with impn- 
 
246 INJUNCTION. [§ 219. 
 
 nity, whenever the success attending the untruth or imposition, 
 so to term it, made it worth his while. Mr. Justice Hoffman held, 
 that if the article was innocuous, a chemical untruth in its name, 
 and a gross extravagance of panegyric, should not deprive the 
 party of a right to protection, when the defendant was clearly an 
 interloper. "If he had deliberately, without any previous con- 
 nection with the particular business, but solely to break in upon 
 the trade of another, and profit by the notoriety obtained by him, 
 used the distinct and known emblems and appellations of that 
 other, he ought not to be allowed immunity. The question should 
 be judged of solely as between^the immediate parties, and the 
 public should be left to its own guardianship. 
 
 Now, in Partridge vs. Menck (Howard's Appeal Cases, 547), 
 so much relied upon by Judge Duer, the plaintiff had not adopted 
 any new and unused symbol or name, but had continued to use 
 one (" Golsh Friction Matches"), which had indicated the pre- 
 vious manufacture of another person, and which the learned 
 Judge Duer admits deceived the purchasers, though they were 
 not defrauded, for the matches were of equally good quality. 
 He had purchased Golsh's secret, but had no right to use the 
 name. 
 
 In Sykes vs. Sykes (3 Barn. & Creswell, 541), the term " Sykes' 
 Patent " was improperly used by the plaintiff. A patent had 
 been obtained by his father, but it had been held to be invalid. 
 It was a misrepresentation, therefore, to use such an appellation. 
 Yet Mr. Justice Bayley left it to the jury to determine whether 
 the defendants adopted the mark in question for the purpose of 
 inducing the public to suppose that the articles were manufac- 
 tured by the plaintiff. 
 
 In Piddings vs. Howe (8 Simons, 479), the trade-mark of the 
 plaintiff was " Houqua's Mixture." The defendant employed 
 the same term. The plaintiff had made, in his public advertise- 
 ments, as to the mode of procuring and making up his mixture, 
 statements wholly false, as to Houqua in Canton being the man- 
 ufacturer of the tea. The Vice-Chancellor refused to allow an 
 injunction, until he should establish his title at law. 
 
 Plavel vs. Harrison (19 En. L. & Eq. Eep. 15), was a case of 
 the adoption by the plaintiff of the term " Flavel's Patent Kitch- 
 ener." His grates were stamped with this name. He had never 
 
§ 219.] INJUNCTION. 247 
 
 obtained a patent. The defendant had been in his employ and 
 obtained copies of his plans. He commenced the manufacture 
 of grates on his own account, and stamped them with the same 
 name. The court held that the misrepresentation as to the pat- 
 ent was so far fraudulent; and looking also to the lapse of time, 
 the court would not interfere summarily by injunction. Therefore 
 the bill was retained for six months, with liberty to the plaintiff 
 to hring cm action in the mean time. 
 
 Perry vs. Truefitt (6 Beavan, 66) is before fully stated. The 
 very important part of the decision that the bill was retained, 
 shows that it was not deemed a conclusive answer to the plain- 
 tiff's right, that he had made his gross misrepresentation as to the 
 German chemist's agency. 
 
 In Croft vs. Day (7 Beavan, 84), Lord Langdale, who decided 
 Perry vs. Truefitt, observed that in some cases injunctions were 
 granted at once, in others, such as Perry vs. Truefitt, not until 
 the right was established at law. 
 
 In HoUoway vs. Holloway (13 Beavan Bep. 209), the title of 
 the plaintiff 's nostrum was "Holloway's Pills and Ointment," 
 and his advertisement was the most extravagant representation 
 of the curative effects of the medicine. The defendant called his 
 medicine " H. Holloway's Pills and Ointment." The Master of 
 the Bolls (Lord Langdale) was decided in granting the injunction, 
 treating it as a very clear case. Counsel had cited and com- 
 mented on his own decision in Perry vs. Truefitt very fully, as 
 also the case of Piddings vs. Howe. 
 
 In Stuart and others vs. Smithson (1 Hylton's Bep. 119), on ap- 
 peal to the General Term, from an order of Justice Woodruff, de- 
 nying liberty to amend an answer, it appeared that the plaintiffs 
 were manufacturers of a thread called " Hall and Moody's Patent 
 Thread," and marked " Barnsley." The thread was known in 
 the market by that name, and it had been used by the plaintiffs 
 for a number of years. The defendants were using the same 
 mark upon thread sold by them. The answer contained general 
 denials. 
 
 After issue, the defendants applied to amend, by stating that 
 the plaintiffs' mark was false and fraudulent; that the thread 
 was not patented, and no patent for such thread had ever ex- 
 isted. Nor was the thread manufactured by Hall & Moody, nor 
 
24:8 INJUNCTION. [§ 219. 
 
 at Barnsley. The motion was denied, on the ground that the 
 proposed amendments constituted no defense. They contained 
 nothing meritorious, and did not amount to a strictly legal an- 
 swer to the plaintiffs' claim. 
 
 And so, in Dale vs. Smithson (Common Pleas, Gen. Term, 
 Feb. 1861), it was objected that the name "Thomas Nelson & 
 Co." was entirely fictitious ; no such firm existed. The plaintiffs 
 were passing off their thread as made by another, and were thus 
 practicing a deception upon the public. The title had been es- 
 tablished at the trial, and the court held that the use of the ficti- 
 tious name did not deprive the plaintiff of his right of action. 
 Perry vs. Truefitt and Piddings vs. Horn were cited, andthe fact 
 noticed as of moment, that the representations only prevented 
 the immediate allowance of the injunction ; that a trial at law 
 was first to be had. Thus clearly leaving it to be inferred, that 
 when the legal right had been so established, the protection would 
 be afforded. 
 
 Upon these authorities, it is far from being clear, that any 
 amount of extravagant praise of the virtues of an article, any 
 mere exaggeration of quackery, any mere false statement, in a 
 chemical or mechanical sense, of the sources of the article, if it 
 is of itself innocent, is enough to prevent a party having the 
 relief which, but for these circumstances, he would have. An 
 absolute falsehood in attributing the authorship to one of 
 known repute in the business, may present a different and pecu- 
 liar case. 
 
 3d. The next point in Lord Cranworth's opinion is, that one 
 mode of redress attending the possession of the right is, " to pre- 
 vent others from selling wares which are not his" (the owner of 
 the mark), " marked with such trade-mark, in order to mislead 
 the public, and so incidentally to injure the person who is -the 
 owner of the mark." 
 
 The leading test here stated is, the selling wares not owned 
 or made by the proprietor of the mark, under the same mark, 
 in order to mislead the public. It may be suggested, that it 
 would be more accurate to say, so as to mislead the public ; be- 
 cause there are certainly cases in which innocence of intention 
 does not protect a defendant. 
 
 In Burgess vs. Burgess (17 En. L. & Eq. Eep. 257), Lord Jus- 
 
§ 219.] INJUNCTION. 249 
 
 tice Turner said : " It is clear that no man can have any right to 
 represent his goods as the goods of another ; but in all cases of 
 this kind it must be made out that the defendant is selling his 
 own goods, as the goods of another. "When a person is selling 
 goods under his own name, and another person, not having that 
 name, is using it, it is clear that he so uses it to represent the 
 goods sold by himself as the goods of another." 
 
 Perhaps the true rule is nowhere better expressed than in the 
 argument of Mr. Wigram and Mr. Parker, in Motley vs. Down- 
 man (3 Mylne & Craig, 13). " When a man makes use of a mark 
 which another has previously appropriated to goods of his own, 
 and he knows that the world will be deceived, the court will pre- 
 ' sume fraud. Sykes vs. Sykes proves this. It is clear, that when 
 a mark on goods has been used by one man, and the public has 
 acquired a knowledge of it, no other man can use the same mark : 
 it is in fact writing one man's name on another man's goods. 
 The adoption of a mark used by him, is as much writing his 
 name, as if his surname or his initials, or any other designation 
 by which he might be known, were employed." 
 
 It was before observed, that the right to protection does not 
 exclusively depend upon the wilful and intentional imitation of 
 the mark. The party may be innocent, yet the public be de- 
 ceived, and the plaintiff injured. Such a case is within the careful 
 language of Lord Justice Turner, in Burgess vs. Burgess, ut su- 
 jpra. The case of Millington vs. Fox is directly in point ; and in 
 Coffeen vs. Brunton (4 McLean's Eep. 516), Mr. Justice Wood- 
 bury admits this to be the rule. 
 
 But the most marked and the most usual case is, where the 
 mark is designedly adopted to mislead the public, and to injure 
 the plaintiff. The courts, especially of late, certainly lean to the 
 conclusion, that the intention was to injure the plaintiff, when 
 the imitation is so marked as to deceive the public. 
 
 It is not the rule that a specific use of the plaintiff's name or 
 mark modo et forma, is necessary to entitle him to an injunction. 
 The court is to be judicially satisfied that the defendant has con- 
 trived to make it appear to the public, that the thing sold by him 
 has been prepared by the plaintiff. 
 
 Lord Langdale, in Croft vs. Day, says : " Was this a contriv- 
 ance calculated to mislead the bulk of unwary purchasers, and 
 
250 iNjrNCTioN. [§ 219. 
 
 thus to benefit the defendants, to injure the plaintiffs, and to de- 
 ceive the public ? " 
 
 So in Clark vs. Clark (25 Barbour, 76), it is well stated, " that 
 an imitation of the mark with partial diiferences, such as the pub- 
 lic could not observe, does the party the same harm as the entire 
 counterfeit. If the wholesale purchaser, most conversant with 
 the mark, is not misled, but the small retailer or consumer is, the 
 injury is the same in law, and differs only in degree." 
 
 Mr. Justice Bayley, in Sykes vs. Sykes (3 Barn. & Cress. 541) 
 puts the question to the jury, whether the defendants adopted the 
 mark in question for the purpose of inducing the public to sup- 
 pose that the articles were manufactured by the plaintiffs, not by 
 themselves. 
 
 The test, as stated by Yice-Chancellor Sandford in Partridge 
 vs. Mench (2 Sandf. Ch. Eep. 622), has been generally approved : 
 " Although the court will hol/i any imitation colorable, which re- 
 quires a careful inspection to distinguish its marks and appear- 
 ance from those of the manufacture imitated, it is certainly not 
 bound to interfere where ordinary attention will enable a pur- 
 chaser to discriminate. It does not suffice to show that persons 
 incapable of reading the labels might be deceived by the resem- 
 blance. It must appear that the ordinary mass of purchasers, 
 paying that attention which such persons usually do, would prob- 
 ably be deceived. 
 
 In Francke vs. "Weaver (10 Beavan, 294) the differences in the 
 labels and wrappers, and words used, were considerable. Yet 
 there was such a crafty adaptation of them as to make it difficult 
 for an ordinary person, not examining them critically, to derive 
 any other impression than that the thing sold was prepared by 
 the plaintiff. 
 
 And see Williams vs. Johnson, 2 Bosworth's Eep. 1. 
 
 The use of distinctive emblems or devices is equally the sub- 
 ject of protection, when first used in connection with the article, 
 and so long used as to become known as its indication. 
 
 Mr. Justice Woodruff, delivering the opinion of the court in 
 Williams vs. Johnson (2 Bosworth, 1), says : " It is so palpable as 
 to admit of no reasonable doubt, that the devices employed by the 
 defendant were calculated and intended by him to secure the 
 benefit of the reputation which the plaintiffs had acquired." 
 
§ 219.] INJUNCTION. 251 
 
 Names of hotels. — The continued use of a particular name of a 
 hotel will entitle the party to an injunction against its adoption 
 by another. 
 
 In Howard vs. Henrifjues (3 Sandf. Sup. Ct. Eep. Y25), the 
 Superior Court determined, that the principle on which trade- 
 marks were protected was not confined to personal property. It 
 applies to a name appropriated to a public hotel. 
 
 The plaintiff opened a hotel by the name of the Ii-ving House, 
 in 18i8. The defendants opened a hotel called Irving Hotel, in 
 the summer of 1850. The plaintiff's house can come to be known 
 as the Irving House as well as the Irving Hotel. An injunction 
 against the defendants using the name Irving Hotel was sus- 
 tained. Justice Campbell, delivering the opinion of the court, 
 says : " If one man has, by attention to the comfort of his guests, 
 and by superior energy, made his hotel desirable for the traveler, 
 and caused its name to become popular throughout the land, 
 another man ought not to be permitted to assume the same name 
 in the same town, and thus deprive him who first appropriated 
 the name, of some portion of the fruits of that good-will which 
 honestly belongs to him alone." 
 
 4th. Another branch of the subject is, what is the mode of try- 
 ing the legal right, and what shall be done while such trial is 
 pending ? 
 
 Justice Duer (2 Sandf. S. C. Eep. 607) says : " That when the 
 title is disputed, the course is to let the motion stand over until 
 the plaintiff has established his legal title at law. By our present 
 practice under the Code, he could not direct an action at law to 
 enable the plaintiff to establish his right, for the present suit 
 ,was such an action. Every complaint was at once a declaration 
 at law, and a bill in equity. I can give the defendant, however, 
 the benefit of the general rule, by so modifying the injunction as 
 not to restrain him from using the letters A. C. A until the legal 
 right of the plaintiff shall have been established by a verdict of 
 a jury in this suit — a course which I should be bound to follow, 
 even if my opinion as to the legal right was widely different 
 from that which I have expressed." 
 
 Lord Cottenham, in Mottley vs. Downman (3 Mylne & Craig, 
 1), says : " The court, when it interferes in cases of this sort, is 
 exercising a jurisdiction over legal rights ; and although, some- 
 
252 mjuNCTioN. [§ 219. 
 
 times, in a very strong case, it interferes in the first instance, by 
 injunction, yet, in a general way, it puts the party upon asserting 
 his right by trying it in an action at law." 
 
 In Perry vs. Truefitt {supra) the bill was retained, the plaintiff 
 to bring his action within six months. 
 
 In Piddings vs. Howe, a similar course was taken. And see 
 The Merimack Manufacturing Co. vs. Garner (4 E. D. Smith, 387 ; 
 2 Abbotts' Eep. 318.) 
 
 But it is plain that, if the court will not grant an injunction 
 in cases where the right is not apparent, and that right is to be set- 
 tled by a trial, great injury may sometimes be done to the plaintiff 
 in the interim, should he ultimately succeed. It would be difficult, 
 often impossible, to prove the damages by the extent of the sales. 
 Hence, in Fetridge vs. Merchant, uf supra, the order was, that 
 the injunction order be discharged upon the defendants entering 
 into an undertaking, in the penalty of $2,600, to keep an account 
 of their sales, and render such account, and pay the amount when 
 required by order of a court of competent jurisdiction. 
 
 In an analogous case, Wilkins vs. Atkin (17 Vesey, 422), Lord 
 Eldon said : " The court, when a fair doubt appears as to the 
 plaintiff's legal right, always directs it to be tried, making some 
 provision in the interim, the best that can be, for the interest of 
 the parties." .The course there adopted was an order that the 
 work might be sold in the mean time, the defendant undertaking 
 to account according to the result of the action. 
 
 And in Shottiswood vs. Clark (2 Phillips, 154 ; 10 London 
 Jurist, 1043), the injunction was dissolved, the defendant under- 
 taking to keep an account, and the plaintiff to bring an action. 
 
 "When the fraud is apparent, and the right seems to the court' 
 well founded, there are cases in which an injunction is essential, 
 or no adequate redress can ultimately be obtained. 
 
 Thus, in Gillott vs. Kettle (3 Duer, 626), the fraud of the de- 
 fendant was in putting genuine labels of the plaintiff, used by 
 him to denote a superior quality of pen, upon boxes containing 
 an inferior quality, and on which the plaintiff placed a different 
 label. The court (Justice Bosworth) said : " Fraud, and damage 
 resulting from it, always entitles the injured party to relief. The 
 remedy by injunction is always granted when the nature of the 
 injury is such that a preventive remedy is indispensable, and 
 
§ 219.] INJUNCTION. 253 
 
 should be permanent. It is obvious that, in eases like this, if the 
 injured party is obliged to seek redress by actions to recover 
 damages, there will be no end to litigation, and certain and 
 adequate relief must be unattainable." 
 
 So, in Genin vs. Chadsey {ut supra, p. 245), Justice Hoffman 
 said : " It is obvious that, if the plaintiff had any right, it could 
 only be effectually protected by an injunction." He then quotes 
 the above language of Justice Bosworth, as applicable. 
 
 Upon this subject it would be, as it seems to me, inaccurate 
 to treat this as more than a general, but very flexible, rule. The 
 observations of Lord Cottenham, upon the analogous ease of 
 copyright,' are very pertinent : " This court exercises its jurisdic- 
 tion, not for the purpose of acting upon legal rights, but for the 
 purpose of better enforcing legal rights, or preventing mischief 
 until they have been ascertained. In all cases of injunctions, in 
 aid of legal rights, whether it be patent-right, copyright, or some 
 other description of legal right, which comes before the court, the 
 office of the court is consequent upon the legal right ; and it gen- 
 erally happens that the only question the court has to consider is, 
 whether the case is so clear and so free from objection, upon 
 equitable considerations, that the, court ought to interfere by in- 
 junction, without a previous trial at law, or whether it ought to 
 wait till the legal title had been established. That distinction 
 depends upon a great variety of circumstances, and it is utterly 
 impossible to lay down any general rule by which the discretion 
 of the court ought in all cases to be regulated." 
 
 And in Macon vs. Jones (4 Mylne & Craig, 433), he stated 
 general rules, which are applicable to a great mass of cases, as 
 well as to those now considered. 
 
 The same judge, in Prince Albert vs. Strange (1 Hall & 
 Tuell's Ch. Eep. 1, see p. 26), refers to the cases before him upon 
 this general point of legal title, and says : " But even in the cases 
 referred to, I have always held that it was for the discretion of 
 the court, to consider whether the defendant might not sustain 
 greater injury from an improper injunction, than the plaintiff 
 from delay in granting it." 
 
 ' In Saunders vs. Smith, 3 Mylne & Craig, 711. 
 
25i INJUNCTION. [§ 219. 
 
 8. Miscellaneous. 
 
 [aJ Editor and publisher. 
 
 In Crooke vs. Potter (at the Eolls, 1860), on a motion for an 
 injunction the Master of the Eolls said : 
 
 " I am of opinion that I cannot accede to this motion. The 
 motion asks that the defendants may be restrained by injunction- 
 from doing three things : first, from interfering with the plaintiff 
 in his editorial capacity ; secondly, from publishing any copy or 
 number of the journal with any heading or title differing from 
 that under which it had hitherto been published ; and thirdly, 
 from publishing the journal without publishing therein the name 
 of the plaintiff as editor. I will consider these points seriatim. 
 No one can concur more completely than I do in the doctrine 
 established by the cases, that where a person has bound himself 
 by contract to do that which in the nature of things it is impos- 
 sible to enforce, the court will restrain him from doing anything 
 in violation of the contract into which he has entered. The first 
 case in which this doctrine was established, was that in which a 
 bill was filed to compel Mr. Price to furnish reports of the Court 
 of Exchequer, and the Lord Chancellor said, ' How am I to com- 
 pel him ? By what means is it to be done ? It is obviously impos- 
 sible. I cannot imprison him until he furnishes the reports. The 
 very nature of the case makes it impossible to grant the relief 
 prayed. But, on the other hand, if Mr. Price has entered into a 
 contract with certain booksellers to furnish reports for them, then 
 I will restrain him from doing so for others.' This is the prin- 
 ciple applicable to all these cases, and in which I fully concur. 
 When Mr. Dickinson applied to me in chambers ex parte for an 
 injunction, I asked him if there was any part of the contract by 
 which the defendants undertook that the name of the plaintiff 
 should appear as editor. It appeared that there was no such 
 stipulation in the written agreement. If it had, then I could not 
 have enforced the contract specifically ; I would have restrained 
 the defendants from publishing any copy of the work not con- 
 taining the name of the plaintiff as editor, so long as he was 
 willing to tender his services as editor. "With respect to the first 
 part of the relief prayed, the evidence shows that, either with the 
 concurrence, or without any objection on the part of the plaintiff, 
 
§ 219.] INJUNCTION. 255 
 
 several alterations have been made in Lis articles, from time to 
 time ; whether those alterations were for the better or worse is 
 wholly immaterial — the fact is important that such alterations 
 were made. I am not aware of any case in which the court has 
 sanctioned any such doctrine as that attempted to be laid down. 
 It appears to me that it would lead to a great amount of difficul- 
 ty if the owners of a copyright in a journal were bound to insert 
 everything which the editor thought fit. Every one would admit 
 that they would not be bound to insert any libelous matter. 
 How is the court to draw the line, and to determine how far the 
 owners of the copyright may interfere with the discretion of the 
 editor ? I have heard nothing sufficiently strong to induce me to 
 say that I ought to give over the journal entirely to the control 
 of the plaintiff, and restrain the defendants from altering the ar- 
 ticles which he may contribute to the journal. The matter 
 resolves itself into this : if the defendants unduly interfere with 
 the functions of the editor, or he improperly introduces matter 
 which is injurious to the journal, the best course is to have it 
 settled by an action of law, and to leave it to a jury to determine 
 the amount of the damages. Tlie next question is, whether the 
 court will interfere by injunction to restrain the defendants ' from 
 publishing any number or copy of the same journal, with any 
 heading or title different from the heading or title under which 
 it has been published since the date and execution of the agree- 
 ment of the 17th January, 1859.' The defendants say that they 
 have not altered the title, and it is very difficult to say they have. 
 It is published now under the title of the Photographic Nevx 
 and Weekly Record of the Progress of Photography. Is the 
 name of the editor necessarily a part of the title ? I have never 
 known it so laid down, and certainly it would not be so treated 
 in the case of a breach of copyright. It does not appear to me, 
 therefore, that any injunction should be granted upon this part of 
 the case. The third part of the motion goes to the same matter 
 in a somewhat different form. It asks that the ' defendants may 
 be restrained from publishing the journal without publishing 
 therein the name of the plaintiff as editor of the said journal, 
 and without publishing therein an advertisement requiring that 
 all editorial communications shall be addressed to the plaintiff.' 
 "Where is the contract which requires this to be done ? I turn to 
 
256 INJUNCTION. [§ 219. 
 
 the written contract, and I find nothing to warrant such an inter- 
 ference on the part of the court. The plaintiff has not made out 
 such a case. On the other hand, the defendant's evidence con- 
 tains a passage to the effect, that this was a matter of discussion 
 between the plaintiff and the defendants at the time of their 
 entering into the agreement, and was not assented to." 
 
 The injunction was denied. 
 
 In Bradbury vs. Dickens (27 Beavan, 53), the defendant was 
 editor and part proprietor of the periodical called Household 
 Words. It was held, that the right to use the name was jsart of 
 the partnership property ; and must be sold for its benefit. The 
 defendant could not advertise a discontinuance of the name. 
 
 [b] Where a publication is libelous. — It seems, that if a publi- 
 cation, which imports that medicines or drugs sold by one, are the 
 products of the skill of another, amounts to a libel, the court will 
 not interfere. 
 
 In Clark w. Freeman (11 Beavan, 112), the injunction prayed 
 for was to restrain the defendant from selling, or exposing for 
 sale, any pills or medicines described as, or purporting to be, 
 those of the plaintiff, or from publishing or circulating any ad- 
 vertisements or handbills so contrived or expressed, as. to repre- 
 sent that any medicine sold or prepared by the defendant, was so 
 sold by him as the agent, or on behalf of the plaintiff. 
 
 The plaintiff was a physician particularly eminent for his 
 treatment of consumptive complaints, and physician in ordinary 
 to her Majesty. The defendant was a druggist, and had offered, 
 qpd extensively advertised for sale, certain pills which he called 
 " Sir J. Clark's Consumption Pills." Among his handbills was 
 one to this effect : " By Her Majesty the Queen's permission. Sir 
 James Clark's Consumption Pills;" and was signed " Agent, Mr. 
 E. Freeman, Bennington road." 
 
 The Master of the Eolls said: "The court can interfere in 
 cases of mischief done to property by the fraudulent misuse of 
 the name of another, by which his profits are diminished. When 
 the legal right is established, the court usually interferes. 
 
 " Now, supposing this publication to be an attempt to impute 
 to a gentleman of high position and character, that he is some- 
 how concerned in vending quack medicines, then, no doubt, it is 
 a serious injury to him in the way of slander, and it may also be 
 
§ 219.] INJUNCTION. 257 
 
 an injury to tlie public. This, I conceive, would be in the nature 
 of a public oflFence. If this court has jurisdiction in cases of this 
 kind, you must first establish the ofi"ence at law. If, after tfiat 
 has been done, you find that an injury is thereby done to the 
 plaintiff's property, or to his means of subsistence, or of gaining 
 a livelihood, I will not say that the court might not interfere by 
 injunction, and prevent the repetition of similar acts. If Sir 
 James Clark had been in the habit of manufacturing and sellings 
 pills, it would be very like the other cases in which the court has 
 interfered for the protection of property. I cannot grant this in- 
 junction. The course of the defendant is disgraceful; but I 
 think the granting of an injunction in this case, would imply 
 that the court has jurisdiction to stay the publication of a libel, 
 and I cannot think it has." 
 
 Mr. Drewiy (Supplement to Treatise on Injunctions, p. 34) 
 says: "This decision is at least singular, and seems founded on 
 an exaggerated idea of the impregnability of a high professional 
 reputation. That the act of the defendant amounted to a fraudu- 
 lei^t use of the plaintiff's name, cannot be doubted. The plain- 
 tiff might be injured in reference to his property, since, if the 
 public believed that the pills were compounded by him, they 
 might be induced to buy them, instead of consulting him." 
 
 In Brandreth vs. Lance (8 Paige, 24), the Chancellor admits 
 that the work, the publication of which was sought to be re- 
 strained, was a gross libel upon the complainant. But in such a 
 case he must seek his remedy by a civil suit in a court of law, or 
 by instituting criminal proceedings. 
 
 [c.J Works of immorality. — It has been asserted that the court 
 will not interfere in favor of any author, to protect him from in- 
 vasion of published or unpublished works, when they are con- 
 trary to religion or morality. 
 
 This subject is one of much interest and much delicacy. 
 
 Chancellor Walworth, in Brandreth vs. Lance (8 Paige, 24), 
 expressed himself in the strongest terms, against the right of the 
 court to restrain a man from publishing a libel. He refers to 
 the statute 2 E. S. Y31, § 1, and the Eevisers' note, 3 E. S. 
 The Court of Star Chamber had once exercised the power ; but 
 he believed no judge had since attempted it. He also refers to 
 Lord EUenborough's statement at nisi prius, in Du Bost vs. Beres- 
 17 
 
258 INJUNCTION. [§ 219. 
 
 ford (2 Campbell, 511), that a court of equity would restrain the 
 exhibition of a libelous painting ; and says it must be consid- 
 erfed as a hasty declaration, made without reflection during the 
 progress of a trial. 
 
 The learned Chancellor allowed the case of Burnett vs. Chet- 
 wood (2 Merivale's Eep. 441, note) to escape his notice. Lord 
 Chancellor Parker granted an injunction to restrain the publica- 
 tion of a translation of a book from Latin into English. In the 
 former language, the strange notions of the book could do little 
 hurt ; but he looked upon it, that the court had a superintend- 
 ency over all books, and might, in a summary way, restrain the 
 printing or publishing any that contained reflections on religion 
 or morality. 
 
 Wholly rejecting the power asserted in this case, yet the 
 question is very different, when an author applies for the remedy 
 of an injunction, whose work is open to the objection of blas- 
 phemy, irreligion, or immorality. 
 
 In Hime vs. Dale (2 Campbell, 27, n.) it was ruled at nisi 
 prius that if a publication was, on its face, so gross as to affect 
 public morals, a jury should be directed to give no damages for 
 a violation of the copyright. 
 
 In Walcot vs. Walker (7 Yesey, 1) Lord Eldon said : "If the 
 doctrine of Lord Chief Justice Eyre was right, and he thought it 
 was, that publications may be of such a nature as that no action 
 at law could be maintained by the author, it was not the business 
 of the court to decree an injunction, or account of profits. It was 
 the duty of the court to know whether an action at law would lie ; 
 for if not, the court ought not to give an account of the unhal- 
 lowed profits of libelous publications. If, upon inspection, the 
 work appears innocent, I will act ; if criminal, I will not act at 
 all ; and if doubtful, I will send the question to law." 
 
 " Lord Eldon, in Southey vs. Sherwood (2 Merivale, 435), said : 
 If the publication is an innocent one, I apprehend that I am au- 
 thorized by decided cases to say, that whether the author did or 
 did not intend to make a profit by its publication, he has a right 
 to an injunction to prevent any other person from publishing it. 
 If, on the other hand, this is not an innocent publication, in such 
 sense as that an action would not lie in case of its having been 
 published by the author, and subsequently pirated, I apprehend 
 
§ 219.] INJUNCTION. 259 
 
 this court will not grant an injunction. Lord Chief Justice Eyre 
 has expressly laid it down, that a person cannot recover damages 
 for a work which is in its nature calculated to do injury to the 
 public." 
 
 In Lawrence vs. Smith (1 Jacob's Eep. 4:71), the plaintiff had 
 published a work called Lectures on Physiology aad the Natural 
 History of Man. The bill was to restrain the defendant from sell- 
 ing a pirated edition. Lord Eldon delivered a remarkably clear 
 and decided opinion. He said : " The matter comes on upon a 
 bill stating that the plaintiff is the author of this work ; that the 
 defendant has published it, and that he is therefore entitled to the 
 protection which courts of equity give, beyond the law, to secure 
 to authors the profits of their publications. Our jurisdiction, un- 
 less I mistake, is founded upon this, that the law does not give a 
 complete remedy to those whose literary property is invaded. 
 The court therefore interposes by injunction, but not in cases 
 where an action cannot be maintained. Looking at the general 
 tenor of the work, and at many particular parts of it ; recollecting 
 that the immortality of the soul is one of the doctrines of Scrip- 
 ture ; considering that the law does not give protection to those 
 who contradict the Scriptures ; and entertaining a doubt — I think 
 a rational doubt — whether this book does not violate that law, I 
 cannot continue the injunction. The plaintiff may bring an ac- 
 tion." 
 
 In Murray vs. Benbow, Feb. 1822, a motion was made to re- 
 strain the defendant from publishing a pirated edition of Lord 
 Byron's poem of Cain. The Lord Chancellor, after reading the 
 work, refused the motion, for similar reasons as those assigned by 
 him in Lawrence vs. Smith (1 Jacob Eep. 474, note). 
 
 In a case before the yice-Chancellor, in 1823, an injunction, 
 which had been obtained to res.train the publication of a pirated 
 edition of portions of the poem of Don Juan, was dissolved on 
 similar grounds. (Ibid.) 
 
 In the 76th number of the Edinburgh Eeview (May, 1822) 
 will be found an article upon this subject, of marked ability. 
 The views of Lord Eldon are denounced with unsparing severity, 
 as being pernicious, despotic, and illegal ; as robbing an author of 
 the protection of his property which the law gives him, upon the 
 solitary judgment of one man as to the tendency of a book. It 
 
260 INJUNCTION. [§ 219. 
 
 had ever before been left to a jury to say if there was libel or 
 scandal in a publication which made its author amenable to pub- 
 lic justice. (See the passage quoted from lY Parliamentary De- 
 bates.) 
 
 IV. — Persons in particular relations. 
 
 This head is subdivided as follows : 
 
 1. Partners. 
 
 2. Corporations. 
 
 3. Public officers. 
 
 4. Receivers. 
 
 5. Assignees, trustees, executors, &c. 
 
 6. Married women. 
 
 1. Attorneys, solicitors, and counsel. 
 
 1. Partners, — It may be stated as the general rule, that where 
 one partner is doing acts, and persists in them, inconsistent with 
 his duties as a partner, and tending to defraud or injure his asso- 
 ciates, he will be restrained. 
 
 And so, where one partner is violating the terms of a partner- 
 ship agreement, an injunction will be allowed. 
 
 Thus, in Hood vs. Aston (1 Kussell, 412), a partner gave to 
 his individual creditors a bill, drawn and accepted by him in the 
 name of the firm, without the consent of his partners, the creditors 
 having knowledge of the fact. An injunction was allowed re- 
 straining 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, in Miles vs. Thomas (9 Simons, 606), the Yice-Chancellor 
 said he was of opinion that the court ought to interfere between 
 copartners wherever the act complained of is one that tends to 
 the destruction of the partnership property, notwithstanding a 
 dissolution may not be prayed. 
 
 But it has been held repeatedly that, as a general rule, the 
 court does not interfere by injunction, or grant a receiver, unless 
 the party makes a case for a dissolution. This does not prevent 
 its interdicting particular acts of misconduct. 
 
§219.] • iNJirafCTiON. 261 
 
 This rule is stated in the leading cases of Marshall vs. Colman 
 (2 Jac. & "Walk. 266), "Waters vs. Taylor (15 Yesey, 10), Smith vs. 
 Jeyes (4 Beavan. 503). 
 
 In Smith vs. Jeyes {ut supra), it was declared that to entitle 
 one partner to an order of injunction and receiver against his co- 
 partner, he must either show a dissolution, or state facts which 
 would entitle him to a decree for dissolution. 
 
 Some exceptional cases are to be found. 
 
 Thus, in Charlton vs. Poulter (19 Yesey, 148, n.), a bill was 
 filed by two partners, charging the other with various acts of 
 misconduct, which obstructed the carrying on of the business, 
 and impaired its value ; and the injunction prohibited such acts 
 for the future. 
 
 Goodman vs. "Whitcombe (1 Jac. & "Walker, 589) is a similar 
 ease. 
 
 In Loscombe vs. Kussell (4 Simons, 8), upon a demurrer to a 
 bill seeking an account of all the monies received by the defend- 
 ants from the partnership concerns since a certain time, but not 
 asking a dissolution, the Yice-Chancellor allowed the demurrer, 
 holding it to be the established rule that such a bill could not be 
 sustained. Supplemental bills might be filed every year. 
 
 But, in "Walworth vs. Hoyt (4 Mylne & Craig, 619), Lord Cot- 
 tenham said that there were two rules alleged to be in force — one 
 that a bill must ask for a dissolution ; another that every partner 
 must be made a party. The result, therefore, of these two rules 
 would be that the door of the court would be shut in all cases in 
 which the partners or shareholders are too numerous to be made 
 parties, which, in the present state of the transactions of mankind, 
 would be an absolute denial of justice to a large portion of the 
 subjects. That rule cannot be so generally applicable as it has 
 been supposed to be. 
 
 The bill was by shareholders of an insolvent company, estab- 
 lished under certain acts of Parliament, was brought on behalf of 
 themselves and all other shareholders, except the defendants, 
 against the directors and trustees and certain shareholders, who 
 had not paid up their calls, praying an account of the assets, a 
 receiver to get in what was outstanding, and an application to 
 the partnership debts. It was sustained on demurrer. 
 
 In Eichardson vs. Hastings (7 Beavan, 301) the Yice-Cliancel- 
 
262 INJUNCTION, ' [§ 219. 
 
 lor said : "At one time the court would not entertain a suit be- 
 tween partners, in relation to partnership transactions, except 
 upon a bill to wind up the partnership. That is not now the rule 
 of the court ; for I think that the court will, as between partners, 
 entertain a bill to settle a question which may arise between 
 them, without proceeding to wind up the affairs." 
 
 The use of a firm name is common to the partners while they 
 continue such. None of such partners can, after a dissolution, 
 retain the firm name on the signs. There must be sufficient ad- 
 ditions or alterations to give distinct notice of a change. 
 
 This was decided in Peterson vs. Humphrey (4 Abbotts' Eep. 
 394), and an injunction to prevent such a use was sustained. 
 
 If a judgment is recovered, and execution issued against one 
 co-partner for his separate debt, the court will not enjoin the pro- 
 ceedings. The remedy is by the other partner, who may be in- 
 jured, to proceed against the purchaser at the sheriff's sale, to 
 ascertain the interest of the debtor acquired by him. That is, the 
 interest after payment of the partnership liabilities, and protec- 
 tion of the rights of the other partners.' 
 
 It is stated, that if it is made to appear that the debtor part- 
 ner cannot have any interest in the partnership property, the in- 
 junction may be allowed. (Mowbray vs. Lawrence, ut supra, 
 citing Story on Partnership, § 264.) 
 
 The English rule appears to be different." 
 
 In Newell vs. Townsend (6 Simons, 419), the debtor partner 
 died before the suit of execution came to the sheriff's hands. It 
 was held that the property had vested in the surviving partner, 
 and could not be taken. An injunction was therefore sustained. 
 
 After dissolution, if any of the partners attempt to carry on 
 the business for their own benefit, they will be restrained. (De 
 Tastet vs. Bordenave, Jacob's Kep. 516). 
 
 Where questions arise between the surviving partners and rep- 
 resentatives of a deceased partner, an injunction will rarely be 
 allowed, without a receiver. (See, as to this, the cases jpost, Tit. 
 Eeceiver.) 
 
 ' Moody vs. Payne (2 John. Ch. Kep. 548); Phillipa vs. Cook (24 Wendell, 389); 
 Mowbray vs. Lawrence (13 Abbott, 31'7). See Witter vs. Richards (10 Connecticut 
 Rep. 43). 
 
 '' BeTen vs. Lewis (1 Simons, 376) ; Lowndes vs. Taylor (1 Madd. Rep. 423). 
 
§ 219.] DTJUNCTION. 263 
 
 2. Corporations. — Injunctions to restrain the acts or proceed- 
 ings of corporations, may be considered under the following 
 heads : 
 
 First. — Under the provisions of the Eevised Statutes of 1830, 
 and the amendatory and additional acts thereto ; and acts under 
 the constitution of 1846. 
 
 Second. — As to municipal corporations. 
 
 Third. — Railroad corporations. 
 
 Fourth. — Eeligious corporations. 
 
 Fifth. — Foreign corporations. 
 
 First. — Under Eevised Statutes, &c. 
 
 [a] Spencer Act, 1825.— The act of the 21st of April, 1825, 
 called the Spencer Act, may be regarded as the first of these stat- 
 utory regulations. It was entitled, "An act to prevent fraudulent 
 bankruptcies by incorporated companies ; to facilitate proceedings 
 against them ; and for other purposes." 
 
 The fifth section of that act was the model of the 30th section 
 of the Eevised Statute of 1830 (Ch. YIII., Tit. 4, Part III., 2 E. 
 S. 461), " Of proceedings against corporations in equity," here- 
 after cited. The last clause of the 6th section corresponds with 
 the 38th section of the same revised act. The 17th section is found 
 re-enacted in section 39, with some additions. 
 
 Under the 6th section of the act of 1825, Chancellor Jones 
 granted an injunction against the Life and Fire Insurance Com- 
 pany, restraining the company and its officers from doing any cor- 
 porate act. He also appointed receivers, and at the instance of 
 stockholders suing on behalf of themselves and all others, &c. 
 
 The statute had not provided for either remedy, as the com- 
 pany was not a banking company, nor had judgment been recov- 
 ered against it. But it had declared the case in which a surrender 
 and dissolution should be deemed to have arisen, and the com- 
 mon-law power of the court could apply the appropriate and 
 competent remedy. 
 
 The case of Lawrence vs. The Greenwich Fire Ins. Comp. (1 
 Paige, 58Y), is an example of a similar exercise of power. 
 
 The Franklin Bank case (1 Paige, 85) was a proceeding under 
 the 17th section, and upon the application of a creditor. 
 
 [b] Revised Statutes, % 31. — The Eevised Statutes have pro- 
 
264 Ix\JlTNCTION. [§ 219, 
 
 Tided an extensive system for the regulation of corporations, and 
 among their provisions for the use of the remedy by injunction. 
 
 The 31st section of the act, " Of proceedings against corpora- 
 tions in equity" (2 E. S. 461), provides, " that upon a bill being 
 filed by the Attorney-General in the Court of Chancery, the Chan- 
 cellor 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." 
 
 The 32d section directs, that 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, liberty, privilege, or corporate right, not granted 
 to tTiem ; and after the coming in of the answer, such injunction 
 may be continued until judgment at law shall have been had. 
 
 It will be observed, that the 31st section applies to the case of 
 an injunction to restrain a corporation from assuming privileges, 
 or transacting husiness, not allowed by its charter. Chancellor 
 Kent, in The Attorney General vs. The Utica Ins. Co. (2 Johns. 
 Ch. Kep. 389), doubted the general powers of the court over a 
 corporation itself to prevent an abuse of corporate franchises. In 
 Eobinson vs. Smith (3 Paige, 222), Chancellor Walworth ad- 
 verted to this doubt, and his language tends to remove it. He 
 did hold, that before the Hevised Statutes, the power of the stock- 
 holders to call upon the court to interfere against the acts of 
 directors for fraud, or misapplication of the funds, was clear ; but 
 he also held that if the corporation refuse to sue, or is in the 
 hands of the directors complained of, the company should still 
 be made a party to a bill for such a purpose. 
 
 It will be also noticed, that this 31st section gives the power, 
 upon a bill filed by the attorney-general. Is this prohibitory, by 
 implication, of the right of any others to apply ? 
 
 The case of Robinson vs. Smith, above noticed, was for the 
 employment of funds in speculating in stocks, the charter being 
 for a coal company, and the stockholders were allowed to sustain 
 the bill. 
 
 In a number of English cases, it has been held, that the ap- 
 
§ 219.] mjuNCTioN. 265 
 
 plication of funds by a company to purposes other than those 
 within the objects and scope of the charter, may be prohibited 
 by injunction. 
 
 Thus, in Coleman vs. The East Counties Railway Company (4 
 Eailway Cases, 513), it was held that directors had no right to 
 pledge the funds of the company, in support of a project not com- 
 prised within their act, although the same might tend to increase 
 their traffic. 
 
 And in Munt vs. Shrewsbury and Chester Eailway Company 
 (3 Eng. L. & Eq. Eep. 144), Lord Langdale said : It had been abso- 
 lutely decided, that companies, possessed of funds for objects dis- 
 tinctly defined by act of Parliament, could not be allowed to 
 apply them to any other purposes whatever, however beneficial 
 to the company that purpose might appear to be. 
 
 These cases are examples of attempted transactions not al- 
 lowed by the company's charter — impliedly forbidden by it. And 
 I think that this 31st section applies to all eases of a violation of 
 duty to the public, as well as to shareholders, by deviating from 
 the purposes for which the charter was granted, usurping powers 
 or franchises, or performing offices or business of a foreign na- 
 ture, and which powers and offices have probably been consigned 
 to other corporations. In short, it was meant to efi'ect by in- 
 junction what a quo warranto efi"ected. The 32d section favors 
 this view ; and other provisions of the statute cover, as I think, 
 the cases cited from the English books. 
 
 § 39. The Revised Statutes, in the 5th subdivision of section 
 39 (2 R. S. 583), provided for the ease of an injunction in the 
 nature of a quo warranto, when a corporation was exercising a 
 franchise or privilege not conferred upon it by law ; and subdivi- 
 sion 3 of section 28 (Ibid. 582), provided the same remedy in 
 cases of individuals, or associations acting as a corporation. 
 
 The sections 31 and 32 now considered, were, therefore, 
 plainly auxiliary to these proceedings at law. 
 
 Code. — ^But the Code (§ 428) has abolished the writ of quo 
 warranto ,' and the remedy is to be obtained by civil action under 
 the provisions of the chapter. (Ch. 2.) 
 
 The 430th, 431st, and 434th sections of the Code, declare the 
 cases in which the Attorney-General, with or without a relator, 
 may maintain an action in cases similar to those provided for in 
 
266 mjDNCTioN. [§ 219. 
 
 the Kevised Statutes, and other sections regulate the course of 
 proceeding. It seems clear, that an injunction is an auxiliary 
 remedy to these proceedings, under the Code, as it was under the 
 statute, and is to be granted under sections 219, 220, and 222, 
 which last particularly applies to such injunctions. 
 
 We must notice, that in such cases under these sections of the 
 Code, the object is to annul the charter, not to restrain unlawful 
 acts of the agents of the corporation. 
 
 Smith vs. The Metropolitan Gas Light Company (12 How- 
 ard's Pr. Eep. 18T), was a case in which an injunction had been 
 allowed to restrain the defendants from acting under their char- 
 ter, on the ground that it was void, and the action was by corpo- 
 rators and tax-payers of the city. The injunction was dissolved. 
 It was declared that an action to annul a charter, and to enjoin 
 the exercise of any of its powers until judgment, could only be 
 brought by the Attorney-General in the name of the People. 
 (Code, 430, et seq.) 
 
 § 33. The jurisdiction conferred upon the Chancellor over 
 directors, managers, trustees, and other oflScers of a corporation, 
 was of the most extensive character, under section 33 of the stat- 
 ute. It may here be observed, that under the Constitution of 
 1846, and the Judiciary act, all the powers granted by that statute 
 became vested in the Supreme Court. 
 
 The first subdivision of section 33 gives power to the court to 
 compel trustees to account for their official conduct in the man- 
 agement of the property. By the second subdivision, they may 
 be compelled to account to the corporation, or its creditors, for 
 money or property acquired to themselves, or transferred to 
 others, or lost, or wasted by any violation of their duty. By the 
 third subdivision, they may be suspended from the exercise of 
 their office, whenever it shall appear that they have abused their 
 trust. 
 
 By the 7th subdivision of the 33d section, the court' may 
 set aside all alienations of. property made by the trustees or any 
 officers of any corporation contrary to the provisions of law, or 
 for 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 by the 8th subdivision, any such alienation may be pre- 
 
§ 219.] mjTJNCTioN. 267 
 
 vented in cases where it may be threatened, or there may be good 
 reason to apprehend it may be made. 
 
 § 35. By the 35th section the jurisdiction conferred by the 33d 
 section shall be exercised as in ordinary cases on bill or petition, as 
 the case may require, or the Chancellor 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, having a general superintendence of its concerns. 
 . The sections now observed upon relate to illegal or fraudulent 
 acts or transfers of the officers of a corporation ; and it is to be 
 noticed, that the provision that the jurisdiction is to be exercised 
 by bill or petition, is superseded by the Code, and the form of 
 action and proceedings must be under it. 
 
 It is next to be noticed that the 35th section directs that the 
 court is to act at the instance of the Attorney-General, if a creditor 
 of the corporation, or of any director, trustee, &c. Stockholders 
 are not enumerated. 
 
 Does the specification of those who may commence this pro- 
 ceeding exclude all others ? 
 
 In numereus cases it has been held that a corporation may sue 
 in its own name to rescind illegal transactions or transfers made 
 by its former oflBcers, acting on its behalf. 
 
 The old and still leading case of The Charitable Corporation 
 vs. Sutton (2 Atkyns, 400), and the case of The Mayor, &c., of 
 Colchester vs. Louten (1 Yes. & Bea. 226), recognize this right. 
 
 In The Attorney- General vs. Wilson (1 Craig & Phillips, 1), 
 Lord Cottenham held, that certain alienations of the corporate 
 property were illegal and void ; and said, " What the present 
 plaintifi's, the corporation, complain of is, that certain persons, 
 members of the corporation at a former time, fraudulently and 
 illegally used the power of the corporation for the purpose of de- 
 priving it of its property. It is true, that in future the Attorney- 
 General may assert the right of the public in an information ; but 
 if, before the act passed, the corporation might institute a suit for 
 the purpose of setting aside transactions fraudulent against it, 
 that right cannot be affected by the Attorney-General having also 
 the power to complain of the transaction." 
 
 In Mozley vs. Alston (1 Phillips' Eep. T90), the Lord Chan- 
 
268 INJUNCTION. [§ 219, 
 
 cellor said : " The complaint against the defendants is, that they 
 are illegally exercising the powers of directors, and illegally re- 
 taining the seal and property of the company. That, if it be an 
 injury at all, is an injury not to the plaintiffs personally, but to 
 the corporation of which they are members ; a usurpation of the 
 office of directors, and therefore an invasion of the rights of the 
 corporation ; and yet no reason is assigned by the bill, why the 
 corporation does not put itself in motion to seek a remedy." 
 
 The Lord Chancellor cites, with decided approval, the case 
 of Foss vs. Harbottle (2 Hare). That stated a case of malversation 
 in the directors, which was properly a subject of equitable relief. 
 The plaintijffs sued, not in their individual characters only, but 
 in behalf of themselves and all the other shareholders, except a 
 few who were made defendants ; but the Vice-Chancellor, after 
 examining all the authorities, decided that such a bill could not 
 be supported ; and as one of the reasons for coming to that con- 
 clusion, he said that, for anything that appeared to the contrary, 
 .there existed the means of rectifying what was complained of, 
 by a suit in the name of the corporation. 
 
 Again, I apprehend that it is quite clear that, under the qual- 
 ification stated in Mozley vs. Alston, and Foss vs. Harbottle {ut 
 supra), stockholders can bring an action to set aside illegal acts 
 or transfers of directors, particularly if brought on behalf of 
 themselves and all others in the same situation. It is probably 
 essential to make the company a party. 
 
 This was, in effect, admitted by Chancellor Kent in The At- 
 torney-General vs. The Utica Insurance Co. (2 Johns. Ch. Rep. 
 380) ; was expressly decided in Robinson ■««. Smith (3 Paige, 222); 
 was recognized in Ogden vs. The North River Bank (6 Johns. 
 Rep. 160) ; and again, by Chancellor Walworth, in Verplanck vs. 
 The Mercantile Insurance Co. (2 Paige, 438-451). The Chancellor 
 speaks of bills being frequently exhibited in the court by stock- 
 holders against the individual directors of a company, to restrain 
 them from violating their trust. See, also, Yerplanck vs. The 
 Mercantile Ins. Co. (1 Edwards' Ch. Rep. 84-87.) 
 
 The English cases of Mozley vs. Alston {ut supra) ; Lund vs. 
 Blanchard (4 Hare, 290) ; Walworth vs. Holt (4 Mylne & Craig, 
 619) ; Ware vs. The Grand Junction Water Works Comp. (2 R. 
 & M. 470) ; Ward vs. The Society of Attorneys (1 CoUyer, 370) ; 
 
§ 219.] INJUNCTION. 269 
 
 Salomons vs. Laing (12 Beavan, 377) ; and Edwards vs. The 
 Shrewsbury and Birmingham Railway (2 De G-ex & Smales, 537), 
 are examples and authorities for the exercise of this power. In 
 some of these cases interference was refused, but upon grounds 
 showing the principles upon which interference could be had. 
 
 Underwood vs. The New York & New Haven Eailroad Com- 
 pany (17 Howard's Pr. Eep. 537) may, I think, be classed under 
 this head. 
 
 Certain persons claiming to be owners of stock in the company 
 were allowed to sustain an injunction restraining the company 
 from paying a dividend, on the ground that others were holders 
 of false and fraudulent certificates. Tlie complainant prayed that 
 the company should not declare any dividends until the list of 
 the true stockholders was ascertained and settled. 
 
 § 36. By the 36th section, when a judgment at law or decree in 
 equity has been obtained against a corporation, and an execution 
 returned unsatisfied, the Court of Chancery could, upon petition, 
 sequestrate the stock, property, and effects, and things in action 
 of the corporation, and appoint a receiver. 
 
 § 38. By section 38, whenever any incorporated company shall 
 have remained insolvent for one whole year, or for one year shall 
 have neglected or refused to pay its notes or other evidences of 
 debt, or for one year shall have suspended the ordinary and law- 
 ful business of such corporation, it shall be deemed to have sur- 
 rendered the rights, privileges, and franchises granted by any act 
 of incorporation, or acquired under the laws of this State, and 
 shall be adjudged to be dissolved. 
 
 This provision corresponds with part of the sixth section of the 
 Act of 1825, called the Spencer Act, before noticed. 
 
 In the matter of The Jackson Marine Insurance Company (4 
 Sandf. Ch. Kep. 559), creditors applied for an injunction and re- 
 ceiver, under section 38, upon the ground of a suspension of busi- 
 ness for one year. The Yice-Chancellor considered what would 
 amount to a suspension. A substantial relinquishment of ordi- 
 nary business was enough. The keeping up of the external organ- 
 ization of officers, but without clerks or agents, the keeping in 
 force or issuing a single policy, was not conducting the business. 
 
 In Connor vs. The Fort Henry Iron Company (12 Barbour's 
 Eep. 27), a lease "was made by a company, which was authorized 
 
270 INJUNCTION. [§ 219. 
 
 to manufacture iron, of all its property to the president, for a 
 period of two and a half years, by a resolution of the stockholders. 
 The business was carried on by the lessee, in the same manner as 
 it had been before. The lease was held void, because it suspend- 
 ed the ordinary business of the corporation for the period of more 
 than one year, and this amounted to a surrender of its rights and 
 franchises within section 38. The action was commenced in 1848, 
 before the Code, and was by creditors of the company on behalf 
 of themselves and all others, &c. 
 
 In Brandt vs. Benedict (17 N. Y. Eep. 93), it was held that 
 section 38 was cumulative merely, and not a limitation of the 
 common law rule previously existing in this State. To infer a 
 surrender of corporate franchises from insolvency, or suspension 
 of business for less than a year, the circumstances must be such 
 as to show that the corporation has lost all power to continue or 
 to resume its business. 
 
 In Ward vs. The Sea Ins. Co. (7 Paige, 294), the Chancellor 
 explains section 38 minutely. Some of the stockholders of the 
 company presented a petition for a receiver, and for an injunction 
 to restrain the officers and directors from collecting, receiving, or 
 interfering with the property or effects of the company. It was 
 a company to take marine risks, and to lend upon bottomry and 
 respondentia. A resolution had suspended the business of the 
 compauy, and committed the management of its effects and estate 
 to a committee ; and this had been followed by a discontinuance 
 of the usual business of insurance, &c., for a year. " The 38th 
 section," says the Chancellor, " which contains the provision as 
 to the suspension of the ordinary business of a corporation, and 
 is applicable to corporations generally, does not appear to be 
 directly connected with the four succeeding sections, which latter 
 sections are -confined to moneyed corporations, as defined in a 
 previous part of the Eevised Statutes. 1 E. S. 598, § [51]. I am 
 of opinion that it was the intention of the legislature that, when 
 a moneyed corporation should have so conducted itself as to have 
 forfeited its corporate franchises, so as in law to be deemed to 
 have surrendered them, this should be considered such a violation 
 of the provisions of its act of incorporation as to authorize pro- 
 ceedings on the part of any of the stockholders under the 37th 
 and 40th sections of the same article." 
 
g 219.] INJUNCTION. 271 
 
 See the case, also, upon the point of an intentional neglect to 
 hold an election as prescribed by a charter. 
 
 § 39. The 39th section (2 E. S. 464) provides for another class 
 of cases, viz. : whenever any corporation, having banking powers, 
 or having the power to make loans on pledges or deposits, or 
 authorized by law to make insurances, shall have become insol- 
 vent, 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 Court of Chancery (Supreme 
 Court) may, by injunction, restrain such corporation from exercis- 
 ing 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 such 
 court shall otherwise order. 
 
 §40. And the 40th section directs that such injunction may be 
 issued on the application of the Attorney-G-eneral, on behalf of the 
 State, or of any creditor or stockholder of such incorporation, on 
 bill or petition filed for that purpose, and upon due proof of any 
 of the facts in the last section required to authorize the issuing of 
 the same. 
 
 Moneyed. — The Eevised Statutes contain another important 
 series of provisions relative to " moneyed corporations." (1 E. S. 
 588, et seq.) The definition is found in the 51st section. (1 E. S. 
 598.) The term "moneyed corporation," as used in this title, 
 shall be construed to mean every corporation having banking 
 powers, or having the power to make loans on pledges or depos- 
 its, or authorized by law to make insurances. 
 
 By the 52d section, the provisions of the title were not to 
 apply to any corporation existing on the 1st of January, 1828, 
 but should be construed to apply to every moneyed corporation 
 created, or whose charter should be renewed or extended after 
 that time, unless such corporation should be expressly exempted 
 from the provisions of the title in the act creating, renewing, or 
 extending such corporation. (1 E. S. 598.) 
 
 The various prohibitions upon acts of the directors of such a 
 corporation, are contained in section 1. Section 8 avoids convey- 
 ances of property exceeding $1,000 in value, unless authorized 
 by a previous resolution of the board of directors, with an excep- 
 
272 mjuNCTioN. [§ 219. 
 
 tion in favor of a purchaser for valuable consideration, without 
 notice. 
 
 By the 9th section no conveyance, nor assignment, nor pay- 
 ment made, judgment suffered, lien created, or security given by 
 any corporation, when insolvent, or in contemplation of insol- 
 vency, with the intent to give a preference to a particular cred- 
 itor over other creditors, shall be valid in law ; and every person 
 receiving such shall be bound to account to the creditors, stock- 
 holders, or trustees. 
 
 The act of April 2, 1829, provided, in its first section, that 
 every moneyed corporation having banking powers, thereafter to 
 be created in the State, or whose charter should be renewed or 
 extended, should be subject to the provisions of such act. 
 
 By the 18th section, if the commissioners (Bank Commission- 
 ers appointed by the 16th section) should ascertain that any of 
 such corporations are insolvent, or shall have violated any of the 
 provisions of their acts or act of incorporation, or any other act 
 binding on such corporations, the said commissioners shall imme- 
 diately apply to the Court of Chancery, upon bill or petition, for 
 an injunction against such corporation and its officers ; and the 
 same proceedings shall in all respects be had, and the court shall 
 possess the like powers upon such application, as are provided by 
 law in respect to such applications when made by the Attorney- 
 General, or by any creditor. « 
 
 The 28th section provides for proceedings against the corpora- 
 tion by the commissioners, and its dissolution as an insolvent 
 corporation, for the various violations or omissions of duty enu- 
 merated in it. 
 
 In the case of the Bank Commissioners vs. The Bank of Buf- 
 falo (6 Paige, 49), we have an example of a proceeding by the 
 commissioners under the 18th section, before cited, and the arti- 
 cle of the Eevised Statutes relative to proceedings against corpo- 
 rations in equity. The provision of subdivision 9 of section 1 (1 
 E. S. 590), prohibiting loans or discounts to the directors of a 
 corporation, were applicable to the corporation itself, so as to war- 
 rant proceedings against it. By the charter of the bank the pro- 
 visions of the act were made applicable. The acts of the board 
 of directors were the acts of the corporation. Loans and dis- 
 counts from corporate funds must be treated as loans made by 
 
§ 219.] INJUNCTION. 273 
 
 authority of the directors, unless fraud or embezzlement in indi- 
 vidual officers was shown. The Chancellor could, with the con- 
 sent of the Bank Commissioners, dissolve, any temporai-y injunc- 
 tion which may have been granted, and permit the company to 
 resume its business, if satisfied of its solvency and integrity of 
 its officers, if this could be done without injury to the public, and 
 with safety to the stockholders and creditors. 
 
 Johnson vs. Bush (3 Barbour's Ch. Eep. 207) was a case of an 
 assignment of property of over $1,000 in value, alleged to have 
 been made without a previous resolution, under section 8 (1 E. S. 
 571), and also of its being in effect a surrender and cancelment of 
 a subscription to the capital stock. The company was an insur- 
 ance company. 
 
 It was held by Vice-Chancellor Whittesley, and by the Chan- 
 cellor, that the transfer was void under sub. 2 of § 1 of Title II. 
 (1 K. L. 589), as a withdrawal of part of the capital stock. 
 
 The Chancellor said, that if there were any creditors or stock- 
 holders who had not participated in violating the laws of the 
 State, they could apply under section 39 (2 E. S. 464) for a re- 
 ceiver to collect and distribute the effects ; or he might be ap- 
 pointed on application of the Attorney-General. 
 
 In Brower vs. Harbeck (1 Duer, 114 ; 5 Selden, 589), the Peli- 
 can Ins. Co., as a moneyed corporation, was subject to the pro- 
 visions of chapter 18 (1 E. S. 589, &c.), with certain exceptions, 
 from which it was, by its charter, exempted. The ninth section 
 of title 11 (1 E. S. 591) was in question. The plaintiff was re- 
 ceiver of the company. The point was as to the transfer being 
 received with knowledge of insolvency, or when it was notorious. 
 
 It was decided, that if the company was actually insolvent, the 
 transfer was void, whether the assignee was ignorant of it or not. 
 He could not become a purchaser for value. His debt revives, 
 and he becomes a creditor, to share equally with others in the 
 property. This rule was also applicable if the transfer was made 
 in contemplation of insolvency, followed by actual insolvency. 
 Insolvency was defined to be, a general inability to answer, in 
 the coui'se of business, the liabilities existing, and capable of be- 
 ing enforced. 
 
 Title lY., ch. 18. — Title lY. of ch. 18, contains also some pro- 
 18 
 
274 INJUNCTION. [§ 219. 
 
 • 
 
 visions of importance. It is headed, " Special provisions relating 
 to certain corporations." (1 E. S. 601.) 
 
 The 2d section declares that dividends are to be made from 
 surplus profits only, forbids a reduction of capital, forbids the dis- 
 counting of notes taken for installments on stock, or to discount 
 any note with the intent of enabling a stockholder to withdraw 
 any part of the money paid in by him for his stock. For a viola- 
 tion of these provisions, the directors are made liable. 
 
 By the 4th section, whenever any incorporated company shall 
 have refused payment of any of its notes, or other evidences of 
 debt, in specie, or lawful money of the United States, it shall not be 
 lawful for such company, or any of its officers, to assign or transfer 
 any of the property or choscs in action of such company to any 
 officer or stockholder, directly or indirectly, for the payment of 
 any debt ; and it shall not be lawful to make any transfer or as- 
 signment, in contemplation of the insolvency of such company, to 
 any person or persons whatever ; and every such transfer qr as- 
 signment to such officer, stockholder, or otlier person, or in trust 
 for them or for their benefit, shall be utterly void ; and whenever 
 any incorporated company shall have remained insolvent for one 
 whole year, or for one year shall have neglected or refused to re- 
 deem its notes or other evidences of debt, in specie or other law- 
 ful money of the United States, or shall for one year have sus- 
 pended the ordinary business of the corporation, such company 
 shall thereupon be deemed to have surrendered the rights, privi- 
 leges, and franchises granted by any act of incorporation, and 
 shall be deemed to be dissolved. (1 E. S. 603.) 
 
 By the 11th section, the provisions of this (the 4th title) were 
 not to apply to any incorporated library, or religious society, nor 
 to any moneyed corporation which shall have been, or shall be, 
 created, or whose charter shall have been renewed or extended, 
 after the 1st of January, 1828, and which shall be subject to the 
 provisions of the second title of this the 18th chapter. 
 
 Bowen vs. Lease (5 Hill, 224) settled that the New York and 
 Erie Eailroad Company was subject to the provisions of the 4th 
 title of chapter 18. It was expressly subjected to those of title 
 3. But this did not exclude the other applying and controlling. 
 
 In Eobinson, Eeceiver, vs. The Bank of Attica (21 N. Y. Eep. 
 406), the Hollister Bank was an association organized under the 
 
§ 219.] INJUNCTION. 273 
 
 General Banking Act. A transaction and negotiation took place 
 on the 28tli of August ; on the 29th, the Bank became insolvent. 
 On the 30th, it made a transfer of certain securities to the defend- 
 ant in discharge or security of the debt, arising from the transac- 
 tion of the 28th. On the 1st of September this was accepted. 
 The Eeceiver brought his action to recover the value of the prop- 
 erty; an injunction had been issued against the HoUister Bank 
 from transacting any business. 
 
 The case was decided upon section 4 of title 4, chapter 18, 
 before cited. These were transferred by the Bank to the defend- 
 ants in anticipation of the insolvency of the former ; and by the 
 statute such transfer was void, if the Hollister Bank was subject 
 to the title and section referred to. 
 
 Harris vs. Thompson (15 Barbour, 62) was the case of a judg- 
 ment recovered, and then an assignment of all the real and per- 
 sonal property of the Astorgan Company, a manufacturing cor- 
 poration, in trust, to pay all the creditors ratably. It was ad- 
 mitted to have been made in contemplation of insolvency, and 
 was adjudged void. 
 
 In Abbott vs. The Hard Eubber Company (11 Abbotts' Eep. 
 204), a sale of all the movable property of a manufacturing cor- 
 poration was restrained, at the instance of a stockholder. The 
 effect of the transfer was to dissolve the corporation. Notes were 
 taken in payment. The directors could not thus defeat the whole 
 object and purposes of the body. 
 
 In Galne vs. The United States Sugar Eefining Company (13 
 Abbotts' Eep. 211), an insolvent manufacturing corporation was 
 attempting to give creditors a preference, by suffering them to 
 get judgments against the company. The creditors were enjoined 
 in an action by one creditor, to dissolve the corporation. But 
 the judgments were allowed to be entered, to stand as security. 
 
 [c] Act of 1838. — The Legislature, on the 18th day of Aprils 
 1838, passed an act to authorize the business of banking. It is 
 sufficient, for the purpose of this work, to notice that by the 
 27th section, if an association neglected to make out and trans- 
 mit the half-yearly statement directed in section 26, or should 
 violate any of the provisions of that act, such association might 
 be proceeded against, and dissolved by the Court of Chancery, in 
 
276 INJUNCTION. [§ 219. 
 
 the same manner as any moneyed corporation might be pro- 
 ceeded against and dissolved. 
 
 The 26th section was repealed by section 5 of the act of May 
 26, 1841. The substituted regulations require the statements to 
 be made to the Bank Commissioners yearly, on the 20th of Janu- 
 ^^J- Sy the 3d section, every association that should neglect to 
 make out and transmit the statement, as required by the first sec- 
 tion, might be proceeded against and dissolved as an insolvent 
 association, and every individual banker who shall so neglect, 
 might be restrained from the further prosecution of his business. 
 
 In Leavitt vs. Blatchford (17 IST. Y. Eep. 521), Justice Harris 
 thus stated the result of Curtiss vs. Leavitt (15 JST. Y. Eep. 9) : 
 " Thus, the question, whether the provisions of the Revised Stat- 
 utes, relating to the insolvency of moneyed corporations, are ap- 
 plicable to associations formed under the act of 1838, was, in 
 Curtiss vs. Leavitt, left undecided ; and as the trust deed now in 
 question was made to secure obligations issued in payment of pre- 
 existent debts, and at a period when the affairs of the company 
 were becoming more desperate, these provisions are again in- 
 voked, and the court is asked to pronounce against the validity 
 of the transaction, on the ground that they have been violated. 
 
 "It will be convenient, before noticing any other question, 
 to determine whether banking associations, organized under the 
 general banking law of the State, are subject to the provisions 
 of the Eevised Statutes relating to moneyed corporations." 
 
 After an extended examination, the learned Judge concludes : 
 " I am satisfied that the Legislature of 1838 intended to intro- 
 duce a new and independent system of banking, and to establish 
 for the government of institutions organized under such system, 
 new and independent regulations, and to leave all previous statutes 
 relating to moneyed corporations, to be applied to the chartered 
 banks then in existence." 
 
 The points actually decided were, that the 8th and 9th sec- 
 tions of the article relating to moneyed corporations, as to a 
 previous resolution, or a transfer in preference, were not appli- 
 cable. 
 
 In Tracy vs. The North American Trust and Banking Comp. 
 (August, 1841, cited in Cleavland's Banking Laws, p. 59, n.), a 
 company formed under the general banking law, was restrained 
 
§ 219.] INJUNCTION. 217 
 
 by injunction from exercising any of the rights and privileges of 
 such an association, and from paying out or otherwise transferring 
 any of its property, &c. Tracy, the plaintiff, was both a creditor 
 and a stockholder. The order for the injunction recited that it 
 appeared by the bill (among other things) that the said associa- 
 tion was insolvent, and unable to meet and discharge its debts 
 as they became due and payable ; and had violated the provisions 
 of the said act (the general banking law) and of the acts amend- 
 ing the same. This order was made under the 39th section of the 
 act as 'to proceedings in equity against corporations, before cited. 
 
 See, also, Mayer vs. Talmage (4 Kernan, 165) ; Bosgerard vs. 
 The ISTew York Bank Co. (2 Sandf. Ch. Eep. 23) is to the same 
 effect. See, also, Sagory vs. Dubois (3 Sandf. Ch. Eep. 166). 
 
 In these cases, especially the last, the Yice-Chancellor stated 
 as the law, that such associations were liable to the provisions of 
 the law in respect to moneyed corporations. In this he is mis- 
 taken ; and I quote the language of Justice Paige in Curtis vs. 
 Leavitt (15 IST. Y. Eep. 180), as showing the present rule upon 
 this subject as I understand it. " There is a distinction between 
 the statutes exclusively applicable to moneyed corporations, and 
 the general laws of the State, written and unwritten, applicable 
 to all corporations. It may well be that the determination that 
 these associations are corporations, may necessarily subject them 
 to such general statutes as are applicable to all corporations, as 
 they undoubtedly are to the rules of the common law in respect 
 to corporations in general ; but from these concessions it by no 
 means follows, that the statutes exclusively applicable to a par- 
 ticular class of corporations must be applicable to these associa- 
 tions, in opposition to the intent of the Legislature." 
 
 In The International Bank vs. Bradley (19 N. Y. Eep. 245- 
 255), it was held that the banking associations were not within 
 section 33 of the act of 1839, the Safety-fund Act. 
 
 Thus it appears that these banking associations, under the 
 general act, are corporations, or of the nature of corporations ; 
 that they are not subject to the particular provisions of the Ee- 
 vised Statutes as to moneyed corporations, contained in Title II. ; 
 and that they are subject to the general act as to proceedings in 
 equity against corporations. 
 
273 INJUNCTION. [§ 219. 
 
 [d] Act of 1849. — By the constitution of 1846 various pro- 
 visions were adopted for forming corporations under general 
 laws, defining corporations, providing for the liability of stock- 
 holders in banking companies, and otherwise. (Article YIII.) 
 
 Under this provision an act was passed on the 5th of April, 
 1849 (Sess. Laws, Ch. 226), entitled " an act to enforce the respon- 
 sibilities of stockholders in certain banking corporations and asso- 
 ciations, as prescribed by the constitution, and to provide for the 
 prompt payment of demands against such corporations and asso- 
 ciations," 
 
 The 1st section of the act provides for the liability of stock- 
 holders for debts contracted by the corporation or association for 
 banking purposes, after the 1st of January, 1850. 
 
 The 6th section provides for declaring the corporation insol- 
 vent, by order of a Justice of the Supreme Court, after execution 
 returned unsatisfied. 
 
 By the 7th section every creditor of such corporation or asso- 
 ciation, having a demand against it exceeding $100, arising upon 
 a debt or liability contracted after the 1st of January next (1850), 
 the payment of which shall have been refused, may at any time 
 after ten days from such refusal, apply to a Justice of the Supreme 
 Court for an order declaring such corporation or association insol- 
 vent, and for an injunction as thereinafter 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 injunction restraining such corporation or association 
 and its officers from paying out, or in any way transferring or 
 delivering to any person, any money or assets of such corporation 
 or association, or incurring any debt or obligation until such 
 order be vacated or modified. 
 
 By section 8, upon a hearing of the parties on such short no- 
 tice as the judge shall appoint, he shall determine whether such 
 corporation or association be clearly solvent or otherwise ;' and 
 may require the production of books, &c. If he determine that 
 such corporation or association is clearly solvent, he shall, not- 
 withstanding, continue the order for a temporary injunction, if 
 one has been granted, until the demand of the applicant be fully 
 paid, with his costs, unless it shall appear, by affidavit or other- 
 wise, that such corporation or association have a good defence on 
 the merits to such demand. 
 
§ 219.] INJUNCTION. 2Y9 
 
 And, by section 9, if the judge determine that such corpora- 
 tion or association is not clearly solvent, he shall make an order 
 declaring the same insolvent, and shall, also, by order restrain 
 such corporation or association and its officers from exercising 
 any of its corporate rights, or any rights or privileges granted to 
 it by law, 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 its property, money, of effects, until such order 
 be vacated ; and he shall immediately appoint a receiver of the 
 property of such corporation or association. 
 
 In Livingston vs. The Bank of l>few York (26 Barbour, 304), 
 Justice Boosevelt considered that the Act of 1849, being subse- 
 quent in time, and especially directed to the case of banks of issue, 
 and covering precisely the same ground, superseded the older 
 enactments. A bill-holder had demanded payment in specie 
 during the general suspension. This afforded no proof of insol- 
 vency. "Within the meaning of the act a bank was solvent, and, 
 consequently, not to be proceeded against, if it has property more 
 than sufficient to satisfy all demands. 
 
 In the matter of The Empire City Bank (18 K Y. Eep. 199), 
 this statute was examined. A judge had, by order, temporarily 
 suspended the action of the bank, and enjoined its disposing of its 
 property or incurring any debt. Subsequently an order was 
 made, declaring the bank insolvent, and appointing The United 
 States Trust Company receiver. The receiver's report was re- 
 ferred by order at Special Term, with directions to apportion the 
 debts among the stockholders. Finally, a judgment of apportion- 
 ment was entered, from which an appeal was taken to the Gen- 
 eral Term, on the ground of want of jurisdiction, it not appearing 
 that the bank ever issued bank notes to circulate as money. 
 
 The Court of Appeals found sufficient evidence of this fact in 
 the papers. The Supreme Court, at Special Term, had general 
 jurisdiction to charge stockholders of banks of issue with the un- 
 paid debts. The question of jurisdiction in the preliminary point 
 could not be raised after judgment. It was held that the act was 
 constitutional, for the general banking law of 1838 reserved to the 
 Legislature the power to alter or repeal it. This bank was organ- 
 ized subsequently to the Constitution and the act of 1849. The 
 act was not liable to the objection that it deprived stockholders 
 of a trial by jury. The proceeding before a referee, where each 
 
280 INJUNCTION. [§ 219. 
 
 party could be heard, was due process of law, within the State 
 constitution. Personal service is not required to constitute due 
 process of law. The Legislature can provide for a notice by pub- 
 lication. A stockholder's liability is not limited to the amount 
 paid in, or agreed to be paid in ; but he is, in addition, responsible 
 in a sum equal to that amount. 
 
 Persons holding stock by hypothecation, and in whose names 
 it is registered, are stockholders within the act, and liable for 
 unsatisfied debts. 
 
 Second. — Municipal Corporations. 
 
 The next subject of inquiry is, in what cases will the acts of 
 a municipal corporation be interfered with by injunction? 
 
 A municipal corporation is defined to be one constituted for 
 the government of a portion of the State. The chartered cities 
 and boroughs form, in our country, a large class of this deseriptioi^' 
 
 The act of July 21, 1853 (Ch. 603) contains some provisions 
 as to the power of municipal corporations to borrow money, con- 
 tract debts, and loan their credit. The last section makes it in- 
 applicable to any corporation which, by any existing law, was 
 authorized to borrow money, or issue evidences of debt. 
 
 There is a general act for the incorporation of villages passed 
 in December, 1847 (Ch. 426), and amended in various subsequent 
 statutes. See 5 Ed. of Statutes, vol. 2, p. TOl. 
 
 The first point to be noticed relates to the parties who may 
 apply, and the cases in which a court of equity will give relief by 
 injunction to prevent wrongful, illegal, or fraudulent acts of a 
 corporation or its officers. 
 
 The directors or managers of a corporation are trustees for the 
 holders of the shares. Hence, the shareholders are entitled to 
 relief in equity against an actual or threatened waste or misappli- 
 cation of the corporate property. (17 IST. Y. Eep. 592.) 
 
 It seems to be also settled, that a suit for that purpose must 
 be brought in the name of the corporation, unless it appears that 
 the directors refuse to prosecute, or are themselves the guilty par- 
 ties answerable for the wrong. If they do thus refuse, or are thus 
 answerable, the shareholders may sue in their own names ; but 
 in such case, the corporation must be made a defendant, either 
 solely, or jointly with the directors sought to be charged. (Ibid.) 
 
 ' Bouvier's Dictionary, Title Corporations. 
 
§ 219.] INJUNCTION. 281 
 
 The authorities which sustain and illustrate these positions, 
 are stated ante p. 264. 
 
 Illegal taxes or assessments imposed by a municipal corpora- 
 tion, may be reviewed on certiorari, and set aside. 
 
 But the general rule is, that a court of equity will not enter- 
 tain an action by a party aggrieved, for relief in sucb cases. 
 
 An action was brought in the Superior Court of Buffalo, de- 
 manding judgment, that an assessment, made by the Common 
 Council in the regular mode, upon the plaintiff's land, be de- 
 clared void, and that the defendants be perpetually enjoined from 
 collecting the same. Various grounds of illegality were alleged, 
 and the case arose on demurrer. 
 
 It was declared : That a legal assessment was a lien on the 
 land ; an illegal one, as one made without authority, was no lien. 
 Even if it is to be regarded as an apparent lien, it did not follow 
 that was such a cloud upon the title, as entitled the plaintiff to 
 relief in equity. It was still the law, that a party who brings an 
 equitable action must sustain it upon some equitable ground ; 
 and if his cause of action is of a legal, and not an equitable na- 
 ture, he must bring a legal action, or pursue a legal remedy. If 
 the matter i% prima facia one of legal cognizance, the party, to 
 entitle himself to equitable relief, must show that a perfect rem- 
 edy cannot be obtained at law. (Heywood vs. The City of Buf- 
 falo, 14 N. T. Eep. 534.) 
 
 Justice Johnson said : " The general rule was subject to three 
 exceptions : 1st, where the proceeding in the subordinate tribunal 
 will necessarily lead to a multiplicity of actions ; 2d, where they 
 lead, in their execution, to the commission of irreparable injury to 
 the freehold ; and 3d, where the claim of the adverse party to the 
 land is valid upon the face of the instrument, or the proceedings 
 sought to be set aside, and extrinsic facts are necessary to be 
 proved, in order to establish the validity- or illegality." 
 
 These propositions passed without disapprobation from any 
 member of the Court of Appeals. Mr. Justice Denio delivered 
 the only other opinion, and he concurred with the court below as 
 the ground of decision, that the illegality of the tax sufficiently 
 appeared on the face of the proceedings. 
 
 The coui't has refused injunctions for relief from illegal taxes 
 or assessments in Blake vs. The City of Brooklyn (20 Barbour, 
 
282 INJUNCTION. [§ 219. 
 
 301), Bouton vs. The City pf Brooklyn (15 Barbour, 375), Betts 
 vs. The City of "Williamsburgh, (15 Barbour, 255), Wilson vs. 
 The Mayor of New York (1 Abbott, 3), in which the subject is 
 fully examined. The New York Life Ins. Co. vs. The Board of 
 Supervisors (4 Duer's Eep. 192). 
 
 In the Mutual Benefit Life Ins. Co. vs. The Board of Supervi- 
 sors (20 Howard's Pr. Eep. 415), the complaint sought to restrain 
 the defendants from collecting a tax alleged to have been ille- 
 gally imposed, because the plaintiffs were a foreign corporation, 
 and had no place of business in the State. A demurrer was sus- 
 tained. 
 
 In Thompson vs. The Commissioners of the Land Fund (2 
 Abbott, 248), a tax payer and inhabitant had loaned the State 
 a million and a quarter of dollars, under the act of the 19th of 
 February, 1855. He applied for an injunction to prevent the 
 completion of another loan, under another act, on the ground of 
 its being unconstitutional, and would injure his security as a 
 lender. The application was denied. 
 
 Two of the exceptions to the rule, that the court will not 
 grant an injunction to restrain the illegal imposition or collection 
 of a tax, viz., the prevention of a multiplicity of actions, and 
 where proceedings affecting real estate, may occasion irreparable 
 mischief to the freehold, are declared to be such exceptions by 
 Justice Nelson, in The Mayor of Brooklyn vs. Meserole (26 "Wen- 
 dell, 132). 
 
 The case of The New Haven Railroad Co. vs. Schuyler, is of 
 importance upon the subject of the prevention of a multiplicity 
 of actions, affording grounds for the interference of a court of 
 equity, even where the matter of the action is of a legal nature. 
 The action was brought in the Supreme Court by the company 
 against 324 defendants, for settling the claims which arosa out of 
 the frauds of the defendant Eobert Schuyler. See the case 
 stated post, head " Cancellation of instruments." 
 
 There are several strong cases establishing the proposition that 
 a court cannot interfere by injunction, to restrict the exercise by 
 a municipal corporation of any of its legislative powers, or of the 
 exercise of any of its functions necessary or important for the due 
 government of the body of which it has control. 
 
§ 219.] INJUNCTION. '28 3 
 
 In Ketchum vs. The City of Buflfalo, &c. (14 N. Y. Eep. 356), 
 the action was to restrain the city from completing the purchase 
 of lots for a market, and cancelling the bonds of the corporation 
 given in payment, and enjoining the defendants from levying a 
 tax to pay the bonds. The complaint was dismissed, and the 
 judgment affirmed in the Court of Appeals on the merits. The 
 court declined passing upon the plaintiff's right to support the 
 action. But Mr. Justice Wright was clear he could not do so, 
 and his argument is full and powerful. 
 
 In Doolittle vs. The Supervisors of Broome County (18 N. Y. 
 Eep. 155), the point decided was, that the act of a Board of Su- 
 pervisors in erecting a new town could not be declared void, and 
 the organization restrained, in a suit by residents and freeholders 
 of such proposed new town, they having no other interest than 
 one common to all the freeholders of such town. A private per- 
 son cannot question such an act, unless it involve some peculiar 
 damage to his individual interests. The authorities are examined 
 with great minuteness by Justice Denio, and he states the rule 
 thus : " No private person or number of persons can assume to 
 be the champions of th'e community, and on its behalf challenge 
 the public officers to meet them in the courts of justice, to defend 
 their official acts." 
 
 I should have supposed that the principle of this case was 
 decisive of the whole matter, but for the observation at the close 
 of the opinion, that it may be that where a town is governed in 
 its local affairs by means of a corporation, the citizens' stand in a 
 different relation to the local government to that which they oc- 
 cupy in other cases. 
 
 However, in the case of Roosevelt vs. Draper (23 IST. Y. Bep. 
 318, 16 Howard, 167), the Court of Appeals, through the 
 same learned judge, adverted to this point as left open in Doolit- 
 tle vs. The Supervisors, &c. He said : " The reasoning by which 
 the conclusion was reached, as well as the examination of ad- 
 judged cases, applied generally to the administrative acts of mu- 
 nicipal corporations equally well with the case in hand. Still, as 
 it had been suggested that different considerations might apply, 
 where the act complained of was that of a corporation of a city, 
 we withheld the' expression of any opinion upon the alleged dis- 
 tinction between the cases. But having now heard this aspect of 
 
284 INJUNCTION. [§ 219. 
 
 the question discussed, we are prepared to say, that no sUch dis- 
 tinction exists." 
 
 It was decided in the same case, that a holder of the public 
 stock of a corporation could not sustain a suit to avoid an alien- 
 ation of its property, upon which he had no specific or general 
 lien, and which is not shown to be essential to the security of the 
 corporate creditors. 
 
 The exception to the rule, as to the incapacity of a citizen thus 
 restraining the proceedings of a corporation, is thus stated by 
 Chief Justice Denio, in Davis vs. The Mayor, &c. (14 IST. Y. Rep. 
 506) : " It is well settled that where such an offence (as a nuis- 
 ance) occasions, or is likely to occasion, a special injury to an in- 
 dividual, which cannot well be compensated in damages, equity 
 will entertain jurisdiction of the case at his suit, and also that the 
 Attorney-General, in all cases where a preventive remedy is called 
 for by the circumstances, or the State in its own name, may 
 apply for an injunction against the perpetrator of the wrong." 
 
 The action had been commenced by persons alleging them- 
 selves to be taxpayers, residents of the city of New York, and 
 owners of real property therein, and also (3wners of lots situated 
 on Broadway, through which the projected railroad was to run. 
 The allegation of ownership of lots on Broadway was put in 
 issiie, and not proven ; and the judge found that the railroad 
 would not be specially injurious to the plaintiffs. The court be- 
 low had allowed the complaint to be amended by introducing the 
 Attorney-General. The Court of Appeals held that this could 
 not be done. 
 
 In Whitney vs. The Mayor, &c., of ISTew York, and others (28 
 Barbour's Eep. 233), it was held, at Special Term, that the court 
 will not interfere by injunction to restrain a municipal corpora- 
 tion from passing a resolution or ordinance giving permission to 
 a railroad company to run steam-engines in particular streets or 
 avenues of the city; unless in a ease where it appears that the 
 mere formal passage of such resolution would instantly, without 
 any action or attempt to enforce any right under it, effect an 
 irremediable private injury ; a case the learned judge could 
 scarcely conceive to exist. 
 
 Milhau vs. Sharp, concerning the Broadway Eailroad, was be- 
 fore the Supreme Court finally in October, 1858. (28 Barbour, 
 
§ 219.] INJUNCTION. 285 
 
 228.) The judge, at Special Term, had found that the plaintiffs 
 were owners and occupants of buildings and lots fronting on the 
 streets, and that the establishment of a railroad would be espe- 
 cially injurious to their property. Upon this finding, the defend- 
 ants were perpetually enjoined from entering upon Broadway, for 
 the purpose of establishing a railroad therein. 
 
 The Genei'alTerm affirmed such judgment. 
 
 In the case of The People vs. The Mayor, &c. (19 Howard's 
 Pr. Eep. 155), Mr. Justice Strong says : " It is apparent from the 
 opinion of Justice Ingraham, on tlie decision of the motion for an 
 injunction, that he intended to decide that the Attorney-General 
 has authority to bring an action in the name of the people, to re- 
 strain a municipal corporation from exercising authority in mak- 
 ing a contract, or performing similar acts, not possessed by it 
 under its charter, or by law." 
 
 The action was to restrain the defendants from making or car- 
 rying into effect a contract for the construction of the gate houses 
 of the Croton reservoir. 
 
 Justice Ingraham and Justice Strong agreed, that passing a 
 resolution was a legislative act, and that the defendants could not 
 be enjoined from any legislation they might deem proper. But 
 it might be granted to restrain such corporation from carrying 
 into effect a resolution passed by them. 
 
 In the case of The People, and Flagg, Comptroller, &c., vs. 
 Lowber (28 Barbour, 65), Mr. Justice Ingraham said, that if an 
 action in the name of the people could be maintained at all, it 
 could only be to prevent the commission of fraudulent acts in re- 
 gard to corporate property, and the doing of acts not authorized 
 by their charter. " However unwise, improvident, extravagant, 
 or unnecessary may be a purchase which a municipal corporation 
 may intend to make, neither the Attorney-General nor any tax- 
 payer has, in my judgment, any right to interfere by action and 
 by injunction." 
 
 Third. — Railroad corporations. 
 
 There are some rules and decisions peculiarly pertinent to 
 railroad corporations. And I first notice what has been said in 
 the Court of Appeals upon the right of the city of JSTew York to 
 authorize a railroad in a street. 
 
 In Davis vs. The Mayor, &c., of New York (14 IST. Y. Eep. 506, 
 
286 INJUNCTION. [§ 219. 
 
 1856), Oh. Justice Denio held two propositions bearing upon this 
 question. First, If authority to establish the railroad had been 
 granted by the Legislature, mediately or immediately, the road 
 could not have been a nuisance. Next, The corporation of New 
 York had assumed to establish a railroad, running wholly on a 
 city street, without any other legislative authority than the gen- 
 eral power to regulate^ amend, and alter the streets, roads, and 
 alleys of the city. The establishment of such a road was not 
 within the jurisdiction conferred upon the corporation. There 
 was a marked distinction between the use of land given to the 
 public to be used as a highway, and its use as a railroad. 
 
 Mr. Justice Comstock said : "He was not able to assent to the 
 views of the Chief Judge in regard to the power of the Common 
 Council over the subject embraced in the resolution. I am confi- 
 dently of opinion that the municipal government of New York 
 may construct, and by mere license authorize others to construct, 
 an iron track in Broadway, adapted to the vehicles of the kind 
 used on railroads, and that licenses may be granted to the owners 
 of such vehicles, as other carriages are now licensed." No other 
 Judge expressed an opinion on this question. The case was de- 
 cided on another point. 
 
 In the second edition of the work of the author on The Law 
 of the Corporation as proprietors, every case upon this subject is 
 examined. I refer to this work under the head of Title to Streets. 
 
 The case of The People vs. The Albany and Yermont Eail- 
 road (19 Howard Pr. Eep. 523) involved an important principle. 
 The action was by the people of the State, through their Attor- 
 ney-General, to restrain the defendants from removing the rails 
 on some twenty miles of their railroad. An injunction to this 
 effect was sustained. After a railroad is completed and used, the 
 company have no right, without imperious necessity, to abandon 
 any portion of it. The public have rights in it which should be 
 protected. 
 
 The action had for its object the compelling the company to 
 repair and operate the road. The learned judge thought such an 
 action could be supported. (Eex vs. The Severn and Wye Eail- 
 road Company, 2 Barn. & Aid. 646.) The injunction against re- 
 moving that portion of the rails not necessary to repair and refit 
 the road for operation, was sustained. 
 
§ 219.] INJUNCTION. 287 
 
 How far railroad companies may be compelled to complete 
 and use a railway commenced, but not perfected, will be found 
 stated in Eedfield on Railways, Tit. Mandamus,, p. 453, and cases. 
 
 In Williams vs. The New York Central E. E. Co. (16 N. Y. 
 Eep. 97), the point decided was this : That where land had been 
 gratuitously dedicated by the owner to the use of the public for a 
 highway, it could not be taken by a railroad company for the 
 use of the road, without consent, or a compensation. 
 
 Fourth. — Eeligious corporations. 
 
 It is first to be noticed as a guiding principle upon this sub- 
 ject, that a corporate body, formed pursuant to the third section 
 of the act of 1813, chapter 60, has no denominational character, 
 and none can be engrafted on it. This section is the general one 
 for incorporating all religious bodies, qther than those of the 
 Episcopal and Dutch-Eeformed Churches, which are provided fcr 
 in previous sections of the same act. 
 
 The legal character of the corporation is not affected by the 
 existence or non-existence of ecclesiastical connection, doctrine, 
 rites, or mode of government of a church formed by the corpora- 
 tors. Persons otherwise qualified do not lose their right to vote 
 at elections, by reason of their having renounced the doctrine and 
 ecclesiastical government possessed by the religious body in whose 
 worship and services the corporate property has always been em- 
 ployed. The title of trustees to oflBce is not impaired by their 
 aberration from the doctrines or government so held. (Pettis vs. 
 Trustees Parish Bellport, Court of Appeals, 1860.) 
 
 In Cooper vs. The Trustees of the First Presbyterian Church 
 of Sandy Hill (32 Barbour, 222), the application was by six pew- 
 holders in a church to restrain the trustees from removing their 
 pews, and erecting slips or other structures in their place. The 
 church was regularly organized under the act of 1813. The title 
 to the ground and edifice was to be deemed in the corporation, 
 on a question between it and pew-holders. 
 
 The court repeated the rule laid down in "Wheaton vs. Gates 
 (18 N. Y. Eep. 404), that the interest of pew-holders did not con- 
 stitute them owners or part owners of the lot ; such interest con- 
 sisted in the right to occupy their respective pews, as part of the 
 auditory, upon occasions of public worship. From the very sub- 
 ject matter of the conveyance, the pew-owner must be presumed 
 
288 INJUNCTION. [§ 219. 
 
 to have taken it with all the conditions incident to such property. 
 The trustees can, for useful purposes, take down and remove the 
 pews of the pew-holders. 
 
 The distinction taken in several cases in Massachusetts as to 
 meeting-houses, was recognized and applied to pews. If altera- 
 tions are made from necessity, no compensation is due ; but if 
 from convenience, or expediency, a recompense must be made. 
 An action for damages may be sustained, but not trespass. 
 
 In Hartt vs. Harvey (32 Barbour's Eep. 55), it was decided, 
 that an injunction would not be allowed in behalf of the legally 
 elected trustees of a religious society, to restrain individuals hav- 
 ing no right to the office, from assuming to act as such. A quo 
 toarranto was the proper remedy. There is no jurisdiction in a 
 court of equity to determine the right to an office, unless, from 
 particular considerations, a court of law cannot furnish adequate 
 relief. 
 
 The Eevised Statutes (5th Ed. 600, § 5) gave the Supreme 
 Court power to inquire into the validity of all elections, except 
 those of religious corporations. The remedy in case of the latter 
 is quo warranto. 
 
 In Bowen vs. The Trustees of the Irish Presbyterian Church 
 (6 Bosworth, 245), a suit was instituted in the Superior Court to 
 enforce a contract of sale made by the trustees of the church, with 
 the assent of a judge of the Supreme Court. Some of the mem- 
 bers of the church then commenced an action in the Supreme 
 Court against the trustees alone, and enjoined them from convey- 
 ing the property, making various allegations of the invalidity of 
 the contract, inadequacy of price, &c. The present plaintiffs 
 were not made parties. While this acti(in was pending, a judg- 
 ment awarding an injunction was obtained in the Supreme Court. 
 An attempt was made to introduce such judgment by supple- 
 mental answer, which was denied. The judge below admitted 
 that the authority of the Supreme Court to revoke the permission 
 it has granted, so long as the contract was not consummated, 
 might be clear. The court is the trustee of the members at large, 
 to protect their interests, and may recall an order made from sur- 
 prise, or obtained by fraud. 
 
 It could not be said, that the existence of that suit would be a 
 plea in bar to the present, for the plaintiffs are not parties to it. 
 
§ 219.] INJUNCTION. 289 
 
 The General Term held, that such judgment could not be regarded 
 as an adjudication of the rights of the present plaintiffs, under 
 their contract, and the order of the Supreme Court. It did not 
 purport to revoke and set aside such order, but only to enjointhe 
 defendants from acting under it. It did not determine that the 
 contract was not a lawful contract, made by proper authority, 
 even admitting that a decision of its illegality could be made 
 without bringing in the plaintiffs as parties. 
 
 It was also decided in this case that a religious corporation 
 has power to make an executory contract to sell real estate, sub- 
 ject to the action of the Supreme Court. If an order of that 
 court authorizing such sale be obtained, the contract will be valid 
 and binding on the corporation, without further ratification by 
 them. The fee is vested in the corporation, and the only restric- 
 tion upon the power of selling and conveying, is the indispensable 
 condition of obtaining an order of the Supreme Court sanction- 
 ing it. 
 
 In Wyatt vs. Benson (4 Abbotts' Eep. 182) an injunction was 
 applied for by the plaintiff and twenty-six other members of the 
 First Methodist Episcopal Church, on behalf of themselves and 
 other members of the congregation, against Benson and eight 
 others, claiming to be trustees. Another object was to restrain 
 further proceedings to effect a sale of the church property in John 
 street. 
 
 The title to real estate was vested in the corporation, which 
 was composed of the members of the congregation entitled to vote 
 for trustees. The trustees were agents of the corporation, not the 
 body itself. (Robertson vs. Bullions, 1 Kernan, 243.) The action 
 of the trustees might be taken as presumptively that of the body 
 in the first instance. 
 
 When the order is yet in fieri, not having been executed, and 
 no rights having been acquired under it, it is still under the con- 
 trol of the court, and the court may revoke its consent to the rule. 
 No contract had been made, it seems, with any one. 
 
 The court revoked its assent, because it was apparent that the 
 measure was in opposition to the views of a large majority of the 
 corporators. 
 
 The only ground on which the court can exercise jurisdic- 
 tion to restrain a bishop from pronouncing judgment upon a 
 19 
 
290 iNJUNcnoN. [§ 219. 
 
 clergyman, pursuant to the sentence of an ecclesiastical tribunal, 
 is, that the threatened action may affect some civil right of the 
 plaintiff, for the protection of whicli he has a proper recourse to 
 the civil courts, viz., exemption from taxation, and the perform- 
 ance of certain civil duties. 
 
 Even if this is a sufficient ground for interfering, the only cog- 
 nizance which it will take of the case is, to inquire whether there 
 is a want of jurisdiction in the defendant to do the act which is 
 sought to be restrained. 
 
 The court will not review the exercise of any discretion on the 
 part of the bishop, nor inquire whether his judgment, or that of 
 the inferior ecclesiastical tribunal, is justified by the facts of the 
 case. (Walker vs. Wainwright, 16 Barbour, 486.) 
 
 In Youngs vs. Ransom (31 Barbour, 49) an injunction had 
 been issued restraining the defendant from acting as rector of a 
 Protestant Episcopal church or interfering with the use of the 
 building. The injunction being dissolved ; an appeal was taken. 
 It was ruled — 
 
 That the section which prescribed that a minister's salary 
 should be fixed by a vote of the congregation, did not apply to 
 Episcopal churches. (Hambert vs. St. Stephen's Church, 1 Edw. 
 Ch. Eep. 308.) 
 
 The induction, as known in the English law, or "institution," 
 referred to in the canons of this Church, is not essential to give 
 to a rector his office and rights. 
 
 When a minister is called to and settled in the charge of an 
 Episcopal parish, unless there is something distinctly expressed 
 in the call and settlement, he cannot be dismissed without his con- 
 sent, except by ecclesiastical authority. 
 
 A court of equity could not interfere, and eject by injunction 
 a clergyman from possession of the church and preaching, when 
 rightfully placed there, when there is no other person claiming 
 the office. 
 
 The case of Humbert vs. St. Stephen's Church (1 Edwards, 
 308) deserves great attention upon this subject. It appears to me 
 to be an exceedingly well-reasoned and well-decided ease. 
 Fifth. — Foreign Corporations. 
 
 In the Mutual Benefit Life Insurance Company vs. The Board 
 of Supervisors (20 Howard's Pr. Rep. 416), the action was to re- 
 
§ 219.] INJUNCTION. 291 
 
 strain the defendants from collecting a tax alleged to have been 
 illegally imposed upon the plaintiffs, upon the ground that they 
 were a foreign corporation, and had no place of business in the 
 State. Heywood vs. City of Buffalo (14 N. Y. Eep. 534) was 
 referred to, and the motion was denied. There was ample remedy 
 by trespass for what had been seized. 
 
 Before a foreign corporation can be restrained from issuing its 
 bonds, or executing a mortgage on its property, it must appear 
 that they will obstruct or defeat rights which can be enforced. 
 
 Thus, in Eogers vs. Michigan S. & N. Indiana E. E. Co. (28 
 Barbour, 540) it was held that where a party had an attachment, 
 judgment, and execution against a foreign corporation, under 
 which he could not reach property, because it was out of the 
 jurisdiction of the court, the court would not interfere by injunc- 
 tion, to prevent the execution of a mortgage by such company, 
 upon the said property. If the judgment, execution, and attach- 
 ment were not liens on the property proposed to be mortgaged, 
 the plaintiff has no right or preference over other creditors of the 
 corporation, either as a judgment or attaching creditor, or upon 
 the ground of the insolvency of the company. 
 
 And it was also held that an injunction would not be issued 
 to restrain such a corporation from transferring, beyond the juris- 
 diction of the court, bonds, stocks, and other equitable assets, 
 when the plaintiff has a complete remedy at law, under a judg- 
 ment, execution, and attachment. 
 
 3, Public officers. — The court will not interfere pending a 
 litigation as to the title to an office, to protect the fund arising 
 from its emoluments, in favor of a party apparently entitled to 
 the office, against an insolvent intruder, exercising the powers 
 and receiving the fees for the time being. 
 
 In Tappan vs. Gray (9 Paige, 507), a flour inspector was ille- 
 gally appointed by the Governor, during the recess of the Senate, 
 and was in the actual discharge of the duties of the office. The 
 former inspector claimed the right to hold over, until a legal ap- 
 pointment was made. An injunction and receiver were refused. 
 This case was affirmed in the Court of Errors, on the point of 
 want of jurisdiction ; but no opinion was expressed by the court 
 as to the legality of the appointment. 
 
 In The People ex rel. Wood vs. Draper (4 Abbotts' Eep. 333), 
 this doctrine was recognized and applied. The action was one in 
 
292 mjuNCTiON. [§ 219. 
 
 the nature of a quo warranto, to test the validity of the act of 
 April 8, 1857, appointing Police Commissioners. A preliminary 
 injunction had been granted, restraining the defendants from ex- 
 ercising any of the duties of the office as functions of Police 
 Commissioners, until further order. The injunction was dis- 
 solved. 
 
 The quo warrcmto was now classed with civil remedies ; and 
 public officers might be restrained from performing acts under 
 color of office not warranted by law ; but it could not be allowed 
 to restrain those who were in the actual exercise of their func- 
 tions, from performing them. 
 
 When a case can be brought within the principle of a bill of 
 interpleader, a municipal corporation bound to pay the salary of 
 an officer, may have an injunction pending a quo warranto to try 
 the title to office of two contestants. 
 
 This was decided in the case of the Mayor, &c., of New York 
 vs. Flagg and others (6 Abbotts' Rep. 296). The Corporation of 
 New York brought their action against the Comptroller, and 
 Conover and Develin, each claiming title to the office of Street 
 Commissioner, and obtained an injunction, restraining the Comp- 
 troller from paying the salaries, and the other defendants from 
 bringing any suits pending a quo warranto, then pending to try 
 the title. 
 
 By an act of 1851 (chapter 488) whenever any duty shall be 
 devolved by law, upon any State officer or board of officers, no 
 injunction shall be issued, to restrain such officer or board, or 
 any person employed by them, or to prevent the execution of any 
 such law, unless the same be granted by the Supreme Court, sit- 
 ting in the District in which such Board shall be located, or such 
 duty shall be required to be performed, at a General Term of 
 said court. 
 
 Before hearing any application for an injunction in such cases, 
 at least eight days' notice shall be served upon the officer, Board, 
 or person against whom the application is made. 
 
 In case of the omission or neglect of the Attorney-General to 
 appear and defend such officer. Board, or person, the Governor 
 may employ counsel to perform such duty, and to institute any 
 appeal, or other necessary proceeding, who shall have the con- 
 trol of such defence or proceeding ; and the Governor, may em- 
 
§ 219,] mjuNCTiON. 293 
 
 ploy counsel to assist the Attorney-General in defending sucli 
 officer, Board, person, or proceeding. 
 
 The Board of Metropolitan Police Commissioners are not 
 State officers within this statute. They are officers of a locality 
 or district, and may be restrained by the court in like manner, 
 and to the like extent, as other local or county officers. (The IST. 
 York and Harlaem E. E. Co. vs. The Mayor, &c., of New York, 
 1 Hylton, 585.) 
 
 In Leigh vs. "Westervelt (2 Duer's Kep. 618) it was held that 
 the court had no jurisdiqtion to restrain Commissioners of Excise 
 from granting licenses to sell intoxicating liquors. The defend- 
 ants were intrusted by the Legislature with the power of granting 
 such licenses to whomsoever they deemed proper. "With this 
 authority, a court cannot interfere. The remedy of citizens suffer- 
 ing from its being misused, was a prosecution for the penalty 
 given by the act. 
 
 There is a series of English cases upon the subject of public 
 officers, which contain some important principles. 
 
 Li Priddy vs. Rose (3 Merivale, 86) it was ruled by Sir "Wil- 
 liam Grant, that it was clear a suit might be maintained against 
 a public officer, having in his hands money issued by Govern- 
 ment, for the use of an individual. But where the Government 
 had ordered the money to be withheld, the question was only be- 
 tween the Government and the individual, and tie court had no 
 jurisdiction. 
 
 In Kankin vs. Huskisson (4 Simons' Rep. 15), Commissioners 
 of "Woods, officers appointed under an act of Parliament, were 
 restrained from building on part of the site of Carlton Palace, in 
 violation of an agreement entered into by thera, in relation to an 
 adjoining part of the site. 
 
 And in Ellis vs. Earl Gray (6 Simons, 214), the Yice-Chancel- 
 lor, after examining certain acts of Parliament, decided the case 
 on this ground — that the bill did not seek to interfere with any 
 public duty which the Lords of the Treasury have to discharge, 
 or with any discretion which they have to exercise in their public 
 capacity. But it sought to restrain them from doing a mere min- 
 isterial act, with the view of securing the money for the parties 
 who might be decreed to be entitled to it. 
 
 4. Receivers. — Suing. — ^The cases in which Eeceivers may 
 
294: INJUNCTION. [§ 219. 
 
 have an injunction in actions brought by them, whether by ex- 
 press provision of statute, or on general principles, are stated un- 
 der the head "Eeceivers,"^os<, chapter Y. 
 
 When sued. — And, in like manner, the rules when they are 
 sued without permission, will be found in the same chapter. 
 
 It may in general be said, that when they are entitled to sue, 
 they may have an injunction, whenever an individual suing in 
 his own right, would be entitled to it. 
 
 5. Assignees, Trustees, Executors, &c. — In general, an in- 
 junction will be granted to restrain assignees and trustees from 
 further interfering with an estate, which they have mismanaged, 
 or put the funds in jeopardy by insolvency. 
 
 In Elmendorf 'ws. Lansing (4 Johns. Ch. Kep. 563) Chancellor 
 Kent stated the rule to be, that an executor, or other trustee, who 
 mismanages or puts the assets in jeopardy, by his insolvency 
 either existing or impending, should be prevented from further 
 interfering with the estate, and that the funds should be with- 
 drawn from his hands. He cites the leading cases, especially 
 Middleton vs. Dodswell (13 Vesey, 266). 
 
 In Boyd vs. Murray (3 Johns. Ch. Kep. 48), the learned Chan- 
 cellor stated that such an injunction was not usually allowed, at 
 least not without a receiver, which was the proper mode of re- 
 lief. See^ost, title Receiver. 
 
 In Bard vs. •Colbron (13 Price, 327) the bill was filed against 
 assignees under an assignment to pay creditors, by the assignor. 
 It charged various acts of neglect and misconduct, by the conver- 
 sion of moneys collected, to his own use, and otherwise. An in- 
 junction was moved for before answer, and there were no allega- 
 tions of insolvency. The injunction was denied. 
 
 6. Married Women. — In a series of cases it has been held, 
 that where a husband needed the aid of a court of equity to ob- 
 tain possession of his wife's property, such aid would only be 
 given on condition of his making a proper settlement upon her. 
 
 In Howard and wife vs. Moffatt (2 Johns. Ch. Rep. 206), 
 Chancellor Kent stated the rule to be, that where the aid of the 
 court was requisite to enable the husband to take possession of the 
 wife's property, he must make an equitable provision out of it 
 for her suppiort and that of her children. If the husband can 
 get the property without the aid of a court of equity, he might 
 do it. 
 
§ 219.] INJUNCTION. 295 
 
 In Haviland vs. Myers (6 Johns. Cli. Eep. 25), the Chancellor 
 also declared, that this equity would prevail equally against the 
 husband or his assignee, and against any sale made, or lien cre- 
 ated by him, even for a valuable consideration, or in payment of 
 a just debt. It was immaterial whether the suit in protection of 
 that equity be instituted by the wife, or by any other person on 
 her behalf. It might be instituted by the wife against a creditor 
 at law to restrain him from touching the property, and the equity 
 might be extended to the whole of the estate. 
 
 And in Yan Epps vs. Van Deusen (4 Paige's Eep. 14), Chan- 
 cellor Walworth held, that upon a bill filed by the wife, the court 
 would restrain the husband or his assignee from proceeding to 
 possess himself of her property in action, and would compel a 
 suitable provision for her out of it. 
 
 The statutes of the State of New York of 1848 and 1849, 
 have, to a great extent, superseded these rules. The married 
 woman's rights to all pi'operty acquired under those statutes is 
 absolute, and the husband has no title at law to it. 
 
 In Yermilyea vs. Yermilyea (14 Howard, 470), the action 
 was for a separation from bed and board, and for support. It 
 was sworn that the defendant was about selling his property, and 
 removing with the proceeds to Kansas ; and an injunction was 
 sustained restraining such removal or disposition of his property, 
 until after trial and judgment. 
 
 Rose vs. Hose (11 Paige, 166) was cited, in which it was 
 conceded that a plaintiff wife was entitled to such an injunction 
 to prevent the property from being squandered. 
 
 It was also held that it was no objection to the allowance of 
 a temporary injunction, that the relief to be granted would not 
 be a perpetual injunction of the same character. 
 
 7. Attorneys, solicitors, and counsel. — The relation of attor- 
 ney and client is of so confidential a character as to have induced 
 a court of equity to be very rigorous in restraining even an ap- 
 proach to the divulging of what has passed between them. It is 
 unimportant whether the relation has been determined or contin- 
 ues. The production of documents of the client, obtained in 
 consequence of the relation, is governed by the same rules. But 
 there must be at least a controversy anticipated which induced 
 the communications, to call for the application of the rule. 
 
296 INJUNCTION. [§ 219. 
 
 " The first point decided upon this subject was, that communi- 
 cations between solicitor and client pending litigation, and with 
 reference to such litigation, were privileged. Upon this there 
 is not at this day any question. The next contest was upon com- 
 munications made before litigation, but in contemplation of, and 
 with reference to litigation which was expected, and afterwards 
 arose ; and it was held that the privilege extended to these cases 
 also. A third question then arose, with regard to communica- 
 tions after the dispute between the parties, followed by litigation, 
 but not in contemplation of, or with reference to that litigation ; 
 and these communications were also protected. Bolton vs. Cor- 
 poration of Liverpool (3 Simons, 467, and i Mylne & Keen, 88) ; 
 Hughes m. Biddulph (4 Eussell, 190) ; "Vent vs. Paey (4 Eussell, 
 193) ; Claggett vs. Phillips (2 Younge & Collyer, 82). 
 
 A fourth point which appears to have called for decision was 
 the title of a defendant to protect from discovery in the suit of 
 one party, cases or statements of facts made on his behalf by or 
 for his solicitor or legal adviser, on the subject-matter in question 
 after litigation commenced, or in contemplation of litigation, on 
 the same subject, with other persons, with the view of asserting 
 the same right. This was the case of Coombe vs. The Corpora- 
 tion of London (1 Younge & Collyer, 631). The question in that 
 suit was the right of the corporation to certain metage duties, 
 and the answer stated that other persons had disputed the right 
 of the corporation to metage, and that they had in their posses- 
 sion cases which had been prepared witli a view to the assertion 
 of their rights against such other parties, in contemplation of 
 litigation, or after it had actually commenced. Sir J. L. Knight 
 Bruce held that those cases relating to the same question, but 
 having reference to disputes with other persons, were within the 
 privilege ; and I perfectly concur with that decision." Per Sir J. 
 Wigram, V. C, in Lord Walsinghame vs. Goodriche (3 Hare, 
 122.) See Woods vs. Woods (4 Hare, 83). 
 
 So Lord Lyndhurst, in Herring vs. Clobery (1 Phillips, 91), 
 says : " That where an attorney is employed by a client, profes- 
 sionally, to transact professional business, all the communications 
 that pass between the attorney and the client in the cause, and 
 for the purpose of that business, are privileged communications, 
 and the privilege is that of the client, not of the attorney." 
 
§ 219.] INJUNCTION. 297 
 
 The fact that the relation has ceased, by discharge of the at- 
 torney, or his abandonment of the suit, or by the termination of 
 the cause or business, makes no difference. 
 
 In Wilson vs. Eastall (4 T. E. T59), Mr. Justice Buller said : 
 "It is not sufficient to say, the cause is at an end ; the mouth of 
 the attorney is shut for ever." 
 
 And in Biggs vs. Head (1 Sausse & Sculley's Ca. in Ch. 335- 
 352, Irisb), the Master of the Eolls observed : " If it were to be 
 held that a client could not discharge his solicitor pending a suit, 
 or after the termination of any particular suit, without releasing 
 bim from the obligation of secrecy, it would seem that he must 
 retain him, no matter how he may have misconducted himself, or 
 how incompetent he may be to direct the suit." 
 
 Chancellor Walworth, in The Bank of Utica vs. Merserau (3 
 Barbour's Ch. Eep. 533, 595), said, " that he considered the true 
 principle to be, that where the attorney is professionally em- 
 ployed, any communication made to him by his client, with refer- 
 ence to the object or subject of such employment, is under the 
 seal of professional confidence. Such appears to be now the set- 
 tled rule in England, although it was at one time attempted to 
 confine the privilege to communications made in the prosecution 
 or defence of suits, which had been, or was about to be, com- 
 menced." 
 
 He refers, as to a well-considered opinion, to that of Mr. Jus- 
 tice Bronson, in Coveny vs. Tannehill (1 Hill's Eep. 33). 
 
 He also held that, where the privilege belonged to several cli- 
 ents, even a majority could not waive it, and warrant the attor- 
 ney in giving evidence, contrary to the will of the others. 
 
 The Chancellor notices, also, some exceptions to the general 
 rule. Thus, if an attorney has prepared a deed for his client, 
 and witnessed its«exeeution, he may be compelled not only to 
 prove the execution of such deed, but also to testify whether it 
 was antedated ; whether it was in the same form at the execution 
 in which it now appears, or has been altered ; and whether it was 
 actually delivered at the time of its subscription. 
 
 Again, it was settled that the privilege did not exist where 
 the communications related to the commission of a crime, or any 
 offence malum in se. The learned Chancellor thought, that the 
 principle (5f this exception should extend to any thing done in 
 
298 INJUNCTION. [§ 219. 
 
 violation of the law of the State ; but found the authorities deci- 
 sive to the contrary. Hence, an attorney, alleged to have been 
 consulted in preparing a fraudulent assignment, was not per- 
 mitted to testify. Numerous cases to this effect are cited by 
 him. 
 
 The production of documents which have come to an attor- 
 ney's hands, by reason of his relation to the client, falls within 
 the same rules, as oral communications. Yice-Chancellor Sand- 
 ford examined the subject very fully in the case of March vs. 
 Ludlum (3 Sandf. Eep. 35), and went over the leading cases. 
 Holmes vs. Haddely, cited by him, has been since reported in 
 Phillips' Reports, vol. 1, p. 476. It was held that not merely the 
 opinion of counsel, but letters written, or cases stated for the 
 opinion of counsel, by a party or his solicitor, with a view to a suit 
 then in contemplation, are privileged from production, not only 
 in that suit, but in any subsequent litigation with third parties, 
 respecting the same subject-matter, and involving the question 
 to which such letters and cases relate. 
 
 V. JRestraint of legal proceediiigs. 
 
 This subject is arranged as follows : 
 
 1. Observations on the effect of the Code. 
 
 2. Proceedings in courts of this State. 
 
 3. Other actions in the same court. 
 
 4. Proceedings in foreign courts. 
 
 6. Against or by receivers and other ofScers. 
 6. Statutory foreclosure. 
 
 Y. Summary proceedings by a landlord under the statute of 
 New York. 
 
 8. Cancellation of instruments. 
 
 9. Administration of assets. 
 
 1. Observations on the effect of the Code. — The class of in- 
 junctions to restrain proceedings at law, perhaps the most im- 
 portant subject of injunctions under the old system, is so reduced 
 by the Code, as to leave very little under this distinctive title. 
 
§ 219.] INJUNCTION-. 299 
 
 Every defence to an action of an equitable, as well as a legal 
 character, may now be made. Take the three first chapters of 
 Mr. Drewry's Treatise on Injunctions (being Part I.), and it will 
 be found that almost the whole is superseded by this great 
 change. 
 
 Thus, the heading of the first chapter is : " Of Injunctions to 
 stay proceedings at law, where the legal title of the defendant in 
 equity is founded originally on some inequitable transaction ; or 
 is against public policy ; or where, though the legal title of the 
 defendant in equity may not have been originally inequitable, it 
 has been tainted with fraud, actual or constructive, by the subse- 
 quent conduct of the party claiming under it." 
 
 If we take the cases specified in the analysis at the head of 
 that chapter, we will see that, with one exception, the rule of the 
 Code supersedes an injunction. 
 
 That exception is, where a party is entitled to come for the 
 cancellation of an instrument, as a cloud upon his title or inter- 
 est. Seej)Ost [8] tit. Cancellation of instruments. In such a case 
 the party may have a temporary injunction, when he makes out 
 a case which will, if established, entitle him to a judgment of 
 surrender and cancelment. 
 
 There are some cases, however, even under the Code, where 
 an injunction will be the appropriate remedy. 
 
 2. Proceedings in other courts of the State. — It is anomalous, 
 and would be highly injurious to suitors and to courts, if the pro- 
 ceeding of one court of co-ordinate jurisdiction should be inter- 
 fered with by an order of another. From these considerations, 
 it was early declared in the Superior Court, that no court could 
 rightfully enjoin a defendant from proceeding in a suit in another 
 court before commenced, and which court had equal power to 
 grant the relief sought by the complaint. 
 
 The rule thus declared was stated at a joint meeting of the 
 judges of the Supreme, Superior, and Court of Common Pleas, 
 and unanimously approved. (Grant vs. Quick, 5 Sandf. Superior 
 Court Eep. 612.) 
 
 See, also, Arndt vs. Williams (16 Howard's Pr. Eep. 244) ; Foot 
 vs. Sprague (12 ibid. 366). 
 
 In the cases arising out of the claims of Conover, as Street 
 Commissioner, a conflict arose between the Supreme Court and 
 
300 , INJUNCTION. [§ 219. 
 
 the Court of Common Pleas. It is sufficient for my purpose to 
 refer to the decision of Justice Peabody in Conover vs. The Mayor, 
 &c. (25 Barbour, 613). He quoted Grant vs. Quick, with full 
 approbation, and laid down as a clear rule that the court having 
 first possession of a case, with powers adequate to the administra- 
 tion of complete justice in the premises, should retain the jurisdic- 
 tion, and confine the litigation to that form. The efforts of any 
 party to divert the litigation to another court should be restrained 
 by injunction. It was particularly proper to restrain such a pro- 
 ceeding taken by a party after an adverse decision on his claim, 
 in the court to which he himself first resorted. 
 
 There are also, from the necessity of the particular case, some 
 exceptions to the general rule. 
 
 Thus, in The New York and New Haven E. E. Company vs. 
 Schuyler and others (8 Abbotts' Eep. 239), the action was for the 
 ascertainment and cancellation of certain spurious certificates of 
 stock, issued through the fraud of Eobert Schuyler, the transfer 
 agent, and the complaint made over two hundred persons parties. 
 Some actions had been commenced in other courts by holders of 
 such stock. 
 
 It was held that an injunction could be issued in such general 
 suit to restrain the proceedings in actions in other courts. From 
 the necessity of the case, either court could enjoin the proceeding. 
 It was proper in the suit in which, all were parties.. Any other 
 rule would enable one defendant to defeat the whole proceeding. 
 
 In McCarthy vs. Peake (9 Abbott, 164), the rule was stated 
 and acted upon that, if two actions between the same parties and 
 upon the same subject matter are brought in two different courts, 
 that which first acquires jurisdiction should dispose of the case. 
 The court which was not the first to acquire jui-isdiction, should, 
 on motion, stay the proceedings before it. 
 
 It was, however, considered, in Chappell vs. Potter (11 How- 
 ard, 365), that the mode of restraining proceedings in a pending 
 action was matter of practice merely, and that an injunction 
 might, in some instances, be the most proper course. The plain- 
 tiff there had pledged various notes as collateral for debt, and had 
 been sued (with the makers) as indorser upon them, and judg- 
 ments recovered. He afterwards brought his action for a transfer 
 of certain stock, also pledged, and to restrain the enforcement of 
 
§ 219.] INJUNCTION. , 301 
 
 tlie judgments, on the allegation that the suna due had been ten- 
 dered and demand of surrender made. He was held entitled to 
 an injunction, giving the usual security. He might have the 
 benefit of the judgments against the principal debtors on the 
 notes. 
 
 So, in Yan "Wagenen vs. Lafat-ge and Lahrens (13 Howard's 
 Eep. 16), a mortgagee, after obtaining a judgment of foreclosure 
 and sale, made an agreement with the mortgagor, by which the 
 premises were conveyed in trust to sell, in a manner prescribed, 
 and to apply the proceeds to the judgment. He then attempted 
 to execute the judgment. 
 
 An action was brought against him, and an injunction sus- 
 tained, prohibiting the enforcement of the judgments ; leaving 
 the parties to the rights and course as regulated by the deed. 
 
 Here effectual relief as to the mortgagor might have been ob- 
 tained by an order in the cause. If the action was also to enforce 
 a sale according to the'trust, a new party was, of course, neces- 
 sary. 
 
 3. Actions or proceedings in the same court. — "When a case 
 exists of two suits for the same purpose in the same court of com- 
 petent jurisdiction, the course is to move for a stay in one or 
 the other. (Diederich m. Haysradt, 4 Howard's Pr. Eep. 350.) 
 
 In The Auburn City Bank vs. Leonard, and Leonard vs. The 
 Auburn City Bank (20 Howard's Pr. Eep. 193), it was ruled that, 
 where a suit was instituted in a court, and a cross action com- 
 menced in the same court to obtain affirmative relief, a stay 
 might be obtained by order when the circumstances justified it ; 
 an injunction was not necessary or proper. 
 
 But a stay ought not to be granted until both actions are at 
 issue, and it shall appear that both causes of action may be tried 
 on their merits in either suit. The court may then, in its discre- 
 tion, suspend proceedings in one, until the trial of that which 
 involves the whole merits. No order should be made in either 
 action, until they are in such a condition that the court can see 
 that the merits of both can be fully tried in the other, and that a 
 stay will not prejudice or impair the rights or remedies of the 
 party stayed. (Fuller vs. Eead, 15 Howard's Pr. Eep. 236 ; 6 
 Duer, 697.) 
 
 The Marine Court has no power to open or vacate its own 
 
302 INJUNCTION. [§ 219. 
 
 judgment, except by appeal to the General Term, unless when 
 obtained by default. And the 5th section of the act of 1859, 
 giving the Comptroller power to apply to the court to open judg- 
 ments, does not extend to the Marine Court. But by filing a 
 transcript in the office of Clerk of the Common Pleas, it becomes 
 a judgment of the latter court. Nor can the Common Pleas 
 open or vacate such a judgment. The only course, therefore, 
 when a case is made of fraud or collusion in obtaining the judg- 
 ment, or other grounds exist for setting it aside, is to enjoin its 
 enforcement, without prejudice to the parties' right to sue upon it 
 in a Court of Record. In such action the defendants could apply 
 for affirmative relief against the judgment. (Martin vs. The 
 Mayor, &c., of JSTew York, 20 Howard, 86). 
 
 4. Actions in foreign courts. — It was held, in the case of 
 Field vs. Holbrook (Special Term, Superior Court, Oct., 1856, 3 
 Abbotts' Rep. 377), that a court of this State, of equitable juris- 
 diction, had power to enjoin a party to an action pending in it, 
 from sueing the adverse party upon the same subject-matter, in a 
 foreign tribunal. The plaintiff and defendant resided in 'New 
 York. The contract, though dated in St. Johns, was to be per- 
 formed in New York. It related to stock of a company, as much 
 a company of New York, as of Newfoundland or London. 
 
 The judge said : " It is obvious that the whole litigation 
 can be, properly and justly to all parties, carried on in this court. 
 If testimony is needed from abroad, the usual course is open. 
 
 " The earliest case generally cited on this subject, is- Lowe vs. 
 Baker, before Lord Clarendon in 1692. He refused an injunction 
 to restrain a party from proceeding in a suit at Leghorn. The 
 report is found in Freeman's Reports, 2 ; in 1 Chancery Cases, 
 67 ; and in Nelson's Reports, 103. In Hovenden's edition of 
 Freeman, it is stated from the Register's Book that the Lord 
 Chancellor had consulted with several of the judges. In Nel- 
 son's Reports it is stated, that all the barons were of a different 
 opinion from the Lord Chancellor, and the Bar was dissatisfied 
 with the decision. 
 
 " Without referring to the intermediate cases whicli bear but 
 slightly upon the question, I proceed to notice those commencing 
 in 1821, in which it has been fully considered. 
 
 " In Harrison vs. Gurney (2 Jac. & "Walker, 562), a decree for 
 
§ 219.] INJUNCTION. 303 
 
 the execution of certain trusts was made in a creditor's suit, 
 and a receiver appointed. Some of the estates were situated in 
 Ireland. The trustees had subsequently filed a bill in Ireland 
 for the same object. An order was made restraining their pro- 
 ceeding in that suit. The Lord Chancellor said they might call 
 the receiver to an account, but in other respects the second bill 
 was unnecessary. 
 
 " Bushley vs. Munday and others (5 Madd. E. 297), is a lead- 
 ing case. The bill was to set aside a bond given by the plaintiff 
 to Munday as trustee for the others, in part satisfaction of money 
 lost at play. A motion was made that an injunction before 
 granted should be extended to prevent Cloveg, the assignee of the 
 bond and a defendant, from proceeding with a suit upon it in the 
 Court of Sessions in Scotland. It was stated that the Scotch 
 Court had jurisdiction of the suit first, which, from the case sub- 
 mitted to Mr. Cranstoun, appears to have been the fact, by about 
 two months. The Yice-Chancellor observed that the object of 
 the two suits was the same, but the court here could give a relief 
 by cancelling the bond, which the court there could not do. It 
 was,.more convenient, also, for this court to say whether by the 
 law of England the bond could be recovered upon, and the plain- 
 tiff here could have the benefit of the admission of the assignor 
 under oath in his answer. The injunction was granted. 
 
 "In Beckfordws. E:emble,1822 (1 Sim. & St. T), after a decree 
 for a redemption in England, the defendants instituted a suit in 
 Jamaica to foreclose the mortgage, and were restrained, upon 
 certain terms. All the parties resided in England, but the lands 
 were in Jamaica. 
 
 " Lord Portarlington vs. Soulby, came before Lord Brougham 
 in 1834: (3 Myl. & Keene, 104). He adverted to Lowe vs. Baker, 
 and thought the answer given to Lord Clarendon was a sound 
 answer, viz., that the order affected the parties only. He noticed 
 some later cases, especially Campbell vs. Houlditch, in 1820. He 
 sustained an injunction restraining the defendants from proceed- 
 ing with a suit in Ireland on a bill of exchange given, as alleged, 
 for a gambling debt. I gather from the case that the transaction 
 took place in England. The case of Penn vs. Lord Baltimore, 
 and eases of that character, were also adverted to, as tending to 
 the result he had arrived at. That leading authority was the 
 
304 INJUNCTION. [§ 219. 
 
 one on which Ward vs. Arrendondo, in our own court, pro- 
 ceeded. 
 
 " The late case of The Carron Iron Co. vs. McClaren (5 
 Clarke's Cases, House of Lords, July, 1855), contains a full dis- 
 cussion of the subject. It arose upon an appeal from an order 
 continuing an injunction. (16 Beav. 279, 289.) 
 
 " A suit in Chancery in England was instituted in March, 
 1852, to carry the trusts of a will into execution. In May, 1852, 
 a decree for an account, &c., was made. The plaintiffs were a 
 company located in Scotland, with agencies in England. The 
 testator was one of their agents, and was alleged to be largely 
 indebted to them, In October, 1852, the company commenced a 
 suit in the Sessions in Scotland against the executors. They ob- 
 tained an inhibition and arrestment. In December, 1852, an 
 injunction to restrain proceedings in Scotland was continued (16 
 Beav. 279, 289), and from this an appeal was taken. 
 
 " The Lord Chancellor said : ' When, pending a litigation here, 
 in which complete relief may be had, a party to the suit institutes 
 proceedings abroad, the court in general consider this as a vexa- 
 tious harassing of the opposite party, and restrains the foreign 
 proceedings.' Harrison vs. Grurney (2 Jac. & "W". 503) and Reek- 
 ford vs. Kemble (1 Sim. & St. 7) are then cited, with the observa- 
 tion, that decrees had been first obtained in those cases. He 
 proceeds : ' Even if no decree had been obtained in this country, 
 yet if a suit instituted abroad appears ill-calculated to answer the 
 ends of justice, the court has restrained the foreign action, impos- 
 ing terms considered reasonable to protect the party.' (Citing 
 Bushley vs. Munday, 5 Madd. 297.) But even when there is no 
 question as to the foreign litigation being or not being necessary, 
 or being or not likely to be as effectual as litigation in this coun- 
 try, still if a person within the jurisdiction of this court is institut- 
 ing proceedings in a foreign court, contrary to equity and good 
 conscience, the court will restrain the prosecution of such foreign 
 suit, just as if it had been a suit in this country. But the court 
 will not interfere if, from any cause, it appears likely to be more 
 conducive to justice that the foreign proceedings should be left to 
 take their course. Lord Eldon, in Kennedy vs. Casselis (3 Swan- 
 ston, 313), and Lord Lyndhurst, in Jones vs. Geddes (1 Phillips, 
 724), acted on the same principle. 
 
§ 219.] INJUNCTION. 303 
 
 " ' These are instances in which this court has interfered, on 
 principles of convenience, to prevent litigation, which it has con- 
 sidered to be . either unnecessary, and therefore vexatious, or else 
 ill-adapted to secure complete justice.' 
 
 " He then states the rule as equally clear, that the court had 
 no right to interfere with a foreign creditor resident abroad, suing 
 in the courts of his own country, even after adecree for adminis- 
 'tration of assets here; and proceeds to discuss and decide the point, 
 that the Carron Iron Company were in fact residents of Scotland, 
 within that rule ; that the fact of their owning property in Eng- 
 land and selling their articles chiefly there, and having agencies 
 there established, was not enough, and the service on the agent 
 was not sufficient. On this ground the injunction was dissolved. 
 
 " Lord St. Leonards, however, dissented as to this point, and 
 of course gave his authority in substance to the other positions of 
 the Lord Chancellor, as did also Lord Brougham. Lord St. Leon- 
 ards enters into a very careful consideration of the authorities. 
 He fully approves of Bushley vs. Munday. 
 
 "In Mead vs. Merritt (2 Paige E. 404), Chancellor Walworth 
 stated, ' That where a party was within the jurisdiction of the 
 court, so that on a bill properly filed here, this court has jurisdic- 
 tion of his person, although the subject-matter of the suit may be 
 situated elsewhere, it may, by ordinary process of injunction, 
 compel him to desist from commencing a suit at law, either in 
 this State or in any foreign jurisdiction. The Court of Chancery 
 in England has even gone so far as to restrain the defendant from 
 proceeding in a suit previously commenced in a Court of Session 
 in Scotland. But this court will not sustain an injunction bill to 
 restrain a suit or proceeding previously commenced in a court of 
 a sister State, or in the Federal courts. 
 
 " I think the present case is within the principle of the cases 
 I have cited. The contract is to be executed here. Tlie parties 
 reside here. A suit is commenced in this court, effectual in its 
 structure to determine the whole controversy, and the defendant 
 threatens another suit, at a distance, and inevitably attended with 
 vexation and embarrassment to the plaintiff and other parties. 
 
 " Order for the injunction accordingly." 
 
 In Cox vs. Mitchell (7 Common Bench Kep. 55, IST. S. 1859) 
 the plaintiff, a merchant at Liverpool, commenced an action in 
 20 
 
306 INJUNCTION. [§ 219. 
 
 one of the Superior Courts of the United States, against the de- 
 fendant, a merchant of South Carolina, for a breach of contract. 
 While such suit was pending, he sued the defendant in the Court 
 of Common Pleas in England, on the same cause of action, and 
 held him to bail. 
 
 The court refused to stay proceedings in the case before it. 
 There was no authority and no principle for such a course. 
 
 In Williams vs. Williams (31 Barbour, 364) it was declared to 
 be the settled rule in this country, whatever it might be in Eng- 
 land, that a court would not enjoin a defendant from prosecuting 
 an action commenced and pending in another State, in which the 
 same matters were involved. (Burgess vs. Smith, 2 Barbour's Ch. 
 Eep. 276.) A plea of a suit pending for the same matter in a 
 foreign State or country, is no bar to an action here. 
 
 5. Against or by receivers and other officers. — ^It has been set- 
 tled practice, that no action could be brought against a receiver 
 who is an oificer of the court, without its permission. 
 
 In Parker vs. Browning (8 Paige, 589) the Chancellor de- 
 clared, that where complaint is made against the officer of the 
 court for misconduct, the court may either take to itself the cog- 
 nizance of the complaint, or may permit an action to be brought 
 for the alleged injury. 
 
 In Van Bensselaer vs. Emery (9 Howard, 135), where a re- 
 ceiver had been appointed, an injunction obtained against him in 
 another suit was vacated. Justice Harris said, that the proper 
 mode of restraining such an officer, when engaged in discharge of 
 his official trust, is by application to the court for instructions, 
 and not by making him party to an action and getting an injunc- 
 tion. (See Hubbell vs. Dana, 9 Howard, 424.) 
 
 In De Groot vs. Jay (9 Abbotts' Eep. 364) the rule was recog- 
 nized and acted upon by the General Term of the Supreme Court. 
 It was observed that such a rule was essential for the protection 
 of receivers against oppressive and unnecessary litigation, and 
 should be carefully maintained. It was a contempt of the court 
 to sue a receiver without such permission. In most cases of 
 claims against a receiver, or the fund or property in his hands, 
 a remedy by special motion is adequate. Any person having 
 such a claim may resort to this summary remedy. A motion to 
 stay proceedings in an action thus commenced without leave, was 
 granted. 
 
§ 219.] INJTOTOTION. 307 
 
 So, it is the settled practice that a receiver cannot sue without 
 permission given him by the court which appoints him. 
 
 In Merritt vs. Lyon (5 Paige, 125, in error, 16 "Wendell, 410) 
 the subject was fully examined, and the cases stated. The court 
 will interfere to protect third persons against an abuse.of power, 
 attempted to be exercised by another, under pretence of authority 
 derived from the court, as an officer thereof. The possession of a 
 receiver or sequestrator is considered as the possession of the 
 court by which he is appointed. 
 
 See Wardle vs. Lloyd (2 MoUoy, 388) ; Ex-parte Clarke (1 
 Eussell & Mylne, 563). 
 
 Li Smith vs. Woodruif (6 Abbott, 65) a receiver had brought 
 an action without obtaining leave from the court. Judgment 
 was obtained against him with costs. A motion on his behalf to 
 stay execution to collect them against him personally, was denied 
 with costs. See, also, Phelps vs. Cole (3 Code Peporter, 157). 
 
 In "Winfield w. Bacon (24 Barbour, 154) Mr. Justice Birdseye 
 stated the rule, that a receiver authorized to sue was bound to 
 proceed, and could not be restrained by injunction out of another 
 court, or by making him a party to a new action. 
 
 And such rule has been applied to other officers, such as com- 
 missioners to take testimony. 
 
 Upon a commission issued out of the Court of Chancery, for 
 the examination of witnesses, the fees of the commissioners being 
 disputed, they sued at law for the amount demanded. They 
 were restrained by injunction from proceeding, and a reference 
 ordered to the Master. They were officers of the court. (Am- 
 brose vs. Dunmow Union, 8 Beavan's Pep. 43.) 
 
 To the same point are Blundell vs. Gladstone (9 Simons, 455), 
 and In the matter of "Weaver (2 Mylne & Craig, 441). 
 
 6. Statutory foreclosure. — Under some special circumstances 
 a mortgagee will be enjoined from resorting to his legal right of 
 a statutory foreclosure. 
 
 In Davis vs. Briggs (3 Howard's Pr. Pep. 65) a subsequent 
 mortgagee had commenced a foreclosure by action, and had made 
 a prior mortgagee a party, who had answered. The mortgagor 
 answered, denying the rights of the plaintiff. The first mortga- 
 gee, in consequence of the delay, commenced a foreclosure by 
 advertisement under the statute. Mr. Justice Barculo restrained 
 
308 INJUNCTION. [§ 219. 
 
 the first mortgagee from proceeding to sell, until the decision of 
 the cause and further order. 
 
 In Bedell vs. McClellan and others (11 Howard's Pr. Eep. 
 1T2) the action was begun to foreclose a mortgage on the 21st of 
 May, 1855 ; a notice of lis pendens was filed, and a summons 
 and complaint delivered to the sherifi', and served on the 23d of 
 May. The defendant Husted had a prior mortgage, covering 
 one of the farms embraced in the plaintiff's mortgage. He had 
 commenced proceedings to forclose his mortgage under the stat- 
 ute, upon the 22d of May, 1855. A motion to restrain Husted's 
 proceedings was denied. 
 
 .7. Summary proceedings of a landlord. — By the statute (2 E. 
 S. 512) a mode is provided for a summary recovery of posses- 
 sion by a landlord, against a tenant in default. By section 47 
 the Supreme Court is authorized to award a certiorari ; but the 
 proceedings on any such application shall not be stayed by such 
 writ of certiorari, or any other writ or order of any court or offi- 
 cer. 
 
 Duigan m. Hogan (1 Bosworth's Eep. 645) is a case which 
 covers nearly every question upon this subject. It was consid- 
 ered that the whole scheme of the statute was this : Upon certain 
 specified allegations, the landlord may require that the tenant be 
 summarily removed. The tenant may interpose certain specified 
 grounds of defence. The issues between them shall be tried by 
 a jury. Upon a determination in favor of the landlord, he shall 
 be put into possession. And neither by writ of certiorari, or by 
 any other writ, or order of any court or officer, shall the proceed- 
 ings be stayed. 
 
 Such proceedings can be reviewed in a manner prescribed. 
 This was a complete scheme or system, which the Legislature 
 thought wise and sufficient. 
 
 The 219th section of the Code was not inconsistent with the 
 4'rth section of the statute above stated, but the latter was in 
 full force. By section 219, a party may have a temporary in- 
 junction, when, by existing law, he would be entitled, on making 
 out his case, to a permanent one. The 47th section forbids the 
 relief asked. 
 
 A temporary injunction can only be granted, where a per- 
 petual one can be, if the case is made out. The question is, un- 
 
§ 219.] INJUNCTION. 309 
 
 der the 219th section, whether the plaintiff is entitled to the relief 
 demanded, if he prove his case. 
 
 The defence which was the ground of the injunction suit, was 
 either a valid defence before the magistrate, or not. If valid and 
 rejected, the court above could correct it. If not valid there, the 
 Legislature has prohibited its being used, to prevent recovery, 
 though it may be available' as the ground of a separate action. 
 
 The authorities, apparently conflicting on the subject, were 
 referred to. (Smith vs. Moffat, 1 Barb. S. C. Kep. 65 ; Cure vs. 
 Crawford, 5 Howard, 293 ; Ballston vs. Seignett, 2 Abbott, 121 ; 
 Hyatt vs. Burr, 8 Howard, 168 ; Capet vs. Parker, 2 Sandf. S. Ct. 
 Eep. 662.) 
 
 In the case of Marks vs. Wilson (Special Term, Superior 
 Court, July, 1861) several points of moment were raised. 
 
 The complaint was for an injunction to restrain the defendant 
 from executing a warrant granted by a justice of the Marine 
 Court of the City of New York, to dispossess the plaintiff under 
 the act " of Summary Proceedings to recover possession of Land," 
 &c. (2 E. S. 512, vol. 3, 5th ed., p. 836, § 28). The warrant was 
 for holding over after the expiration of the term without permis- 
 sion. 
 
 Hoffman, Justice : " The 4:7th section of the act provides that 
 the Supreme Court may award a certiorari, for the purpose of 
 examining any adjudication made on any application hereby 
 authorized ; but the proceedings on any such application shall 
 not be stayed or suspended by such writ of certiorari, or any 
 other writ or order of any court or officer. 
 
 " The case of Dunigan vs. Hogan (1 Bosw. R. 645) settles the 
 law in this court, holding that the Code (§ 219) is not inconsistent 
 with the 47th section of the Statute, and that it remains in force, 
 and leaving probably no case whatever, except one of undue ad- 
 vantage, fraud, and surprise, to which the landlord is a party, in 
 which an injunction can be granted. Forrester vs. Wilson (1 
 Duer E. 624) was of this character, and rests upon its own pecu- 
 liar circumstances. See, also, Hyatt vs. Burr (8 How. E. 168). 
 
 " But, again, I am clear that the injunction ought not to issue 
 upon any ground as to which the party could have relief in a 
 fixed statutory method, adequate to the purpose. 
 
 " The method of redressing every error, defect, or irregularity 
 
310 INJUNCTION. [§ 219. 
 
 apparent on the record, is prescribed by the section 47, giving a 
 certiorari. That writ has been sued out, and is now pending, al- 
 though the stay of proceedings originally granted has been dis- 
 charged. (Marsellis vs. Bulger, 19 How. R. 34.) 
 
 "An appeal also lies to the Common Pleas from an adjudica- 
 tion in such a proceeding. (1 Hylton E. 399 ; 3 E. S., 5th ed., 
 p. 840, § 52.) 
 
 " Of the alleged errors in the proceeding, tlie certiorari will 
 take up the defects in the affidavit. 
 
 " The 48th and 49th sections of the Statute provide for resti- 
 tution of the possession, if the proceedings are reversed, and for 
 damages sustained by reason of such proceedings. It is said that 
 the defendant is insolvent. This is. denied; but if it were the 
 fact, it could not form a ground for an injunction. 
 
 " The next point, and one which would not arise upon a cer- 
 tiorari or appeal, is, that the service was made on Saturday, and 
 that the plaintiff is of the Jewish persuasion and religion. 
 
 « By the Statute (5th ed., vol. 2, p. 936, §§ 69, TO, and 71), per- 
 sons keeping the seventh day holy are exempted from performing 
 certain duties thereon ; and any person who shall knowingly and 
 maliciously cause any process issued from a justice's court in a 
 civil suit to be served on said day on any person, or who shall 
 serve process returnable on such day, shall be guilty of a misde- 
 meanor, and be subject to a fine of $100, or imprisonment not ex- 
 ceeding thirty days, or both ; and so, for procuring a suit to be 
 tried on that day. 
 
 " This is the Law of 1847, ch. 349, now in force. The Statute 
 of May 7th, 1839, under which Manson vs. Amory (1 Denio E. 
 204) was decided, is repealed. 
 
 " That authority is enough, under the existing statute, to show 
 that service on Saturday would not be sufficient to avoid the 
 judgment. The service Tcnowingly and malioiously is denied, 
 and not in any way established. 
 
 " The only remaining ground on which the plaintiff could ask 
 for the interference of the court relates to the merits, viz , the de- 
 nial of the relation existing, which justifies proceedings under the 
 statute. He contends that he took possession, under the contract 
 of sale, of the premises which is set forth. 
 
 " The plaintiff was to consummate his purchase (dated the 
 
§ 219.] INJUNCTION. 311 
 
 28th of March, 1860) by the 20th of April. He was let into pos- 
 session on the 2d of April. The terms of the contract were, that 
 he was to pay for the property on the 28th of April. The defend- 
 ant was not bound to let him into possession before. He did so, 
 very clearly, in the expectation and with the implied condition, 
 that he should then pay, according to the contract. His taking 
 possession without any reservation was a waiver of objections to 
 the title. He avows that the only objection he has is the exist- 
 ence of two judgments against a former owner, which, it is al- 
 leged, are not liens ; that the judgments were against a diiferent 
 person of the same name ; at any rate, it is positively sworn that 
 the property is clear. 
 
 " I am by no means prepared to say that Henry, the agent, 
 was acting illegally, much less fraudulently, in the affidavit he 
 made to obtain the warrant in the Marine Court. 
 
 " But, independently of this, there was open a plain method 
 for the plaintiff to have obtained redress. 
 
 " I take it for granted that the Marine Court could have 
 opened the default on a proper application. (Mitchell ■««. Menkle, 
 1 Hilton K. 142 ; Session Laws 1853, ch. 617, § 5.) 
 
 " Bnt again, the 366th section of the Code affords a most com- 
 plete remedy upon an appeal, in case of a failure to appear and 
 on affidavits showing that injustice would be done, and satisfac- 
 torily excusing the default. (See Forster -ys. Capewell, 1 Hilton 
 E. 47 ; Lent vs. Jones, 4 E. D. Smith E. 52 ; Milne vs. Hyde, 3 
 ibid. 177.) 
 
 " I consider that, for every alleged irregularity, or defect, as 
 well as for a full investigation of the merits and justice of the 
 case, the law has provided summary and adequate modes of re- 
 dress, without recourse to an injunction ; and that, if there can 
 be possibly presented a case in which the interference by injunc- 
 tion may be allowed, the present is not one of them. 
 
 " Motion for an injunction denied." 
 
 8. Cancellation of instruments. — "Whenever a court of equity 
 will exercise the jurisdiction of causing a deed or instrument to 
 be delivered up to be cancelled, it will in general grant an in- 
 junction against the proceeding upon, or transferring it until 
 judgment, as well as a perpetual injunction, even when a cancel- 
 lation can be procured. 
 
312 INJUNCTION. [§ 219. 
 
 " There is no head of equity jurisdiction more firmly estab- 
 lished than that which embraces the cancellation of instruments 
 which are capable of a vexatious use, after the means of defence 
 at law may become impaired or lost, or when they are calculated 
 to throw a cloud upon the title, or interest of the party seeking 
 relief. But the jurisdiction does not universally attach on the 
 mere ground that the deed or other contract is invalid. If the 
 invalidity plainly appear on the face of the writing, so that no 
 lapse of time, or change of circumstances, can weaken the de- 
 fence, it is held that no occasion arises for a suit in equity to de- 
 cree its cancellation. And the doctrine now is, that such an in- 
 strument does not, in a just sense, even cast a cloud upon the title 
 or interest, or diminish the security of the party against whom 
 the attempt may be made to use it. If, on the other hand, the 
 invalidity does not appear on the face, the jurisdiction is not con- 
 fined to instruments of any particular kind or class. "Whatever 
 their character, if they are capable of being used as a means of 
 vexation and annoyance ; if they throw a cloud upon title, or dis- 
 turb the tranquil enjoyment of property, it is against conscience 
 and equity that they should be kept outstanding, and they ought 
 to be cancelled." (Per Comstock, Justice, in the IST. Y. & IsT. H. 
 E. R. Co. m. Schuyler, Cross and others, 17 E". Y. Eep. 592, 
 599.) 
 
 The action in that case was brought by the Company to settle 
 the claims which arose out of the frauds of the defendant Schuy- 
 ler, as transfer agent. Cross, one of the defendants, demurred to 
 the complaint. 
 
 The demurrer was sustained at Special Term. (See N". Y. & 
 ISr. H. R. E. Co. m. Schuyler, 1 Abbotts' Eep. 417.) In Decem- 
 ber, 1855, this decision was affirmed at General Term. (See 7 
 Abbott, 42.) It was held that the complaint was bad in regard 
 to the misjoinder of causes of action, and for multifariousness. 
 
 In June Term, 1858, the Court of Appeals reversed this judg- 
 ment. (17 ]Sr. Y. Eep. 592 ; 7 Abbott, 41.) The court held that the 
 corporation was in a similar situation as an individual with the 
 legal title to a railroad, receiving the earnings and dividing the 
 profits among those entitled by certificates or declarations of trust. 
 If parties come forward claiming on instruments, to all appearance 
 genuine, but in fact spurious, he would be justified and bound to 
 
§ 219.] INJUNCTION. 313 
 
 call them before tlie court, and to bring to a determination every 
 claim upon the property resting upon documents and facts giving 
 apparently a character of validity. 
 
 The corporation stood in a quasi trust relation to the share- 
 holders. It had a similar right as an individual trustee to resort 
 to a court of equity, to have the spurious claims cancelled and 
 annulled. If it rejected them, either to share in profits or vote 
 at elections, it became exposed, not merely to one, but to a mul- 
 tiplicity of suits, involving questions of no inconsiderable diffi- 
 culty. 
 
 The same case came before Mr. Justice Ingraham, in Febru- 
 ary, 1859 (8 Abbotts' Eep. 239), upon demurrers. Considering 
 that the decision in the Court of Appeals covered, in effect, the 
 whole ground taken in the court below, he overruled such de- 
 murrers. 
 
 The same case is again to be found in 17 How. Pr. Eep. 464. 
 Injunctions were allowed against all the defendants who had com- 
 menced actions before the institution of the general suit ; and as 
 to certain actions at issue, bonds were to be given under the 
 statute. (2 E. S. 189, § 70.) The learned judge considered, that 
 the ground of the decision in the Court of Appeals was the re- 
 moval of a cloud upon the title of the holders of genuine stock, 
 the real shareholders of the company. 
 
 In Field vs. Holbrook (6 Duer, 597)- the subject was fully ex- 
 amined by Mr. Justice Duer, delivering the opinion of the court. 
 It was held that the jurisdiction to order a written instrument to 
 be canceled might be exercised — 
 
 1. "When it is alleged to be void on grounds of which a court 
 of equity alone has cognizance — •. 
 
 2. When its existence would throw a cloud on the plaintiff's 
 title to real estate — 
 
 3. When the instrument is negotiable in its character, as a bill 
 of exchange or promissory note — 
 
 4. And when the plaintiff claims to have a defence to the in- 
 strument, valid in law, but which he is in danger of losing if the 
 adverse party is suffered to delay the prosecution of his claim. 
 
 The relief will not be granted where the instrument is on. its 
 face plainly illegal and void ; when a deed, from its nature and 
 contents, cannot throw a cloud on the title ; nor when a nego- 
 tiable instrument is merged in a judgment. 
 
314 INJUNCTION. [§ 219. 
 
 The mere fact that a void instrument may be used vexatiously, 
 is not enough to give jurisdiction. 
 
 In the particular case, it appeared on the pleadings, that the 
 facts on which the validity of the instrument depended had never 
 occurred. The plaintiflF could not be in more danger of a recovery 
 being had against him, than if the instrument had been void on 
 its face. 
 
 It may be remarked, as to the first class of cases mentioned by 
 the learned judge, where there is a purely equitable defence to the 
 instrument, that as the Code allows such a defence as fully as legal 
 bars, the reason fails. 
 
 9. Administration of assets. — Tliat which was known as a 
 creditor's bill under the system of the Court of Chancery, has 
 been in our State almost entirely superseded by the statute of 
 1830, giving complete jurisdiction to the surrogate of the whole 
 matter. I presume, however, that the jurisdiction of the court as 
 an equity court has not been superseded. I shall therefore notice 
 some of the leading rules upon the subject, though I cannot think 
 it necessary to enlarge much upon it. 
 
 There is one statutory provision also in force, whicli gives ex- 
 clusive jurisdiction to such a court, to which the power of the 
 surrogate does not extend. By the 65th section of the statute (2 
 R. S. 94), the final settlement of the account of an executor is de- 
 clared to be final, as to certain matters. But by the 66th section, 
 it is declared that the preceding section shall not extend to any 
 case where an executor is liable to account to a court of equity, 
 by reason of any trust, expressly created by any last will or tes- 
 tament. 
 
 If, therefore, in addition to the mere simple character of execu- 
 tors, the parties are clothed by the will with something of express 
 trust, the decree of the surrogate cannot be final, and the power 
 of the court of equity is left unafi^ected, even if the surrogate has 
 any authority. 
 
 The rule was well settled, that after a decree for the adminis- 
 tration of assets, the court would restrain a creditor from proceed- 
 ing at law to recover his demand.' The decree was in the nature 
 of a judgment in favor of all the creditors.' 
 
 ' Bank of England vs. Morris (Forester's Rep. 217); 2 Brown's P. C. 405. Cases 
 cited, Hoffman's Masters in Chancery, p. 187; lunes vs. Lansing (7 Paige, 386, and 
 cases). 
 
§ 219.] mjuNCTioN. 315 
 
 Such injunction could be had on tlie application of the execu- 
 tor or administrator ; of another creditor, or of a common legatee. 
 (Brooks vs. Keynolds, 1 Br. C. Eep. 183 ; 2 Swanst. 545 ; Clark 
 vs. Earl of Ormond, Jacob's Eep. 122 ; Dyer vs. Kearseley, 2 
 Merivale, 482, n.) 
 
 llf, however, a subsequent suit was better framed to do justice 
 to creditors (as by subjecting executors or trustees to a greater lia- 
 bility), the existence of the former action could not be a ground 
 for an injunction. 
 
 Thus, in Shepperd vs. Towgood (Turner & Russell's Eep. 379), 
 the Master of the Eolls said : " Substantially a bill by one of a 
 set of creditors, on behalf of himself and all others, is considered 
 as making all those others parties to it ; and the court will never 
 permit a second or third suit to be instituted for the same object, 
 with the same parties, and directed to the same relief. But, on 
 the other hand, it never can be contended, nor is it the law of the 
 court, that a second suit may not be rendered necessary, either by 
 collusion in the former suit, or by the inattentive mode of fram- 
 ing it, which may have left out some principal matters of charge 
 against the trustees, or by the omission, from ignorance or negli- 
 gence, of some important ground of relief. It never can be per- 
 mitted that the priority of a suit, defective in its nature, is to 
 exclude another suit that may introduce important matters, with- 
 out which complete justice cannot be done to the creditors." 
 
 If a creditor recover at law against an executor a judgment 
 de honis testatoris, and a decree is made in a suit for the adminis- 
 tration of assets, the court will not suffer execution to be taken 
 out on such a judgment.' 
 
 But if the recovery is de honis testatoris, et si non de 'bonis 
 propriis, the court cannot interpose to protect the executors from 
 any liability to which they may hav» subjected themselves. The 
 executor plead the decree at law, where it was held bad. He 
 should have applied for an injunction." 
 
 Clause 2. — The last clause of section 219, marked 2, ante, p. 142, 
 allows an injunction in a new and peculiar case. If, during the 
 
 'Brook vs. Skinner (2 Merivale, 481, n.) ; Kent vs. Pickering (5 Simons, 569); 
 Buries vs. PoppleweU (10, Simons, 384). 
 
 " Buries vs. PoppleweU, ut supra; Lee vs. Park (1 Keen, 75). 
 
316 INJUNCTION. [§ 219. 
 
 pendency of the action, it shall appear by affidavit that the de- 
 fendant threatens, or is about to remove or dispose of his prop- 
 erty, -with intent to defraud his creditors, a temporary injunction 
 may be granted to restrain such removal or disposition. 
 
 The case for intervention is to be made out by affidavits ; and 
 the received construction is, that the fact of a threat, or an in^n- 
 tion to remove or dispose of the property, must have occurred af- 
 ter action commenced. Hence the facts would not usually appear 
 in the complaint ; at any rate, they must be shown by afBdavit. 
 
 In Pomeroy vs. Hindmarsh (5 Howard Pr. Eep. 437) it was 
 held, that the act, to bring a case within this clause, must be done 
 during the litigation, and in violation of the plaintiff's rights re- 
 specting the subject of the action. The afiidavit did not even 
 show that a. suit had been commenced. It disclosed no fact ex- 
 cept that one of the defendants stated to the defendants' attorney, 
 that they were unable to pay their debts, and would assign their 
 property, and would not secure the plaintiff in preference to 
 others. A statute which suspends all power of a party over all 
 his property, pendente lite, and operates as an attachment, should 
 be strictly complied with. Facts and circumstances shoidd be 
 shown, so that the court can see that a fraud has been threatened, 
 or is about to be perpetrated. This must be made to " appear " 
 to the court, and by proper proof. 
 
 So in the case of Perkins vs. Warren (6 Howard Pr. Hep. 341), 
 Justice Harris said : " No more radical change had been made 
 by the Code than that contemplated by the single clause in the 
 219th section, upon which the application was founded." He sus- 
 tained an injunction upon facts satisfying his mind that there 
 was a disposition of property during suit, with a fraudulent in- 
 tent. 
 
 Upon an appeal to.the General Term, the clause was carefully 
 considered. It was said : " It is a most important question of 
 practice to inquire whether, under the last clause of section 219 
 of the Code, above cited, an injunction may now be obtained dur- 
 ing the pendency of the action, that shall stop every business 
 transaction of the defendant and paralyze his power over his prop- 
 erty, whenever a plaintiff shall succeed in satisfying a justice of 
 this court, or a judge of the county court, that some transfer of 
 property made by the defendant was so made with the intent to 
 
§ 219.] INJUNCTION. 317 
 
 defraud creditors. If this can now be done, it is not only a new 
 practice, but one most destructive to tlie business of a defendant. 
 Sucli an interference, if it could be permitted on a mere claim of 
 indebtedness, would be greatly prejudicial to the commercial in- 
 terests of the community. It has long been regarded as a cardi- 
 nal principle, that the legal right of the plaintiff must be estab- 
 lished before he can call to his aid the extraordinary power of a 
 court of equity ; and a writ of injunction should never be granted 
 where there was doubt about the legal right. The law was still 
 more careful in protecting a defendant from interference by an 
 injunction that would suspend all his business operations; for in 
 addition to establishing the legal right by the recovery of a judg- 
 ment, it required the plaintiff first to make the attempt to collect 
 his demand by execution. 
 
 "If the law is now changed so as to permit an injunction like 
 this to is&ne pendente lite, then our practice presents this extraor- 
 dinary feature, that the same remedy may now be had on appli- 
 cation before judgment, as on application after judgment and ex- 
 ecution returned unsatisfied. The facts to be set forth would be 
 somewhat different ; as, in the former case, it would be necessary 
 to show an intent to defraud, but the remedy would in both cases 
 be the same. 
 
 " The statute (Code, § 219) only authorizes a temporary in- 
 junction where it shall appear by affidavit that the defendant 
 threatens, or is about to remove or dispose of his property, with 
 intent to defraud his creditors; and then the injunction can only 
 restrain ' such removal or disposition ' — that is to say, the removal 
 or disposition threatened, or about to be made. If it be a threat 
 to remove property generally, the injunction may, perhaps — there 
 being no other objection — be as general as the threat. But I am 
 inclined to think the statute was only intended to prevent the 
 consummation of some particular act which the defendant threat- 
 ens or is about to do, rather than to restrain generally the sale or 
 disposition of property, and thus tie up all the business concerns 
 of the plaintiff, pending a litigation. 
 
 " But it is only when the act is threatened, or about to be 
 done, and not when it has been done, that this court is authorized 
 to interfere during the pendency of an action. The remedy given 
 is preventive merely. The facts disclosed by the affidavits did not 
 bring the case within the terms of the act. Here the property 
 
318 INJUNCTION. [§ 220. 
 
 had been sold and conveyed, and there was no proof whatever 
 that the defendant threatened, or was about to remove or dispose 
 of the notes he had received for the property." 
 
 In Brewster vs. Hodges (1 Duer, 609), the questions raised 
 turned upon the proper construction of § 219 of the Code, and 
 the judges consulted by Campbell, J., were all of opinion that, 
 upon a motion to dissolve an injunction order, granted during 
 the pendency of an action under the last clause of that section, 
 the only question to be considered is, that of fraudulent intent. 
 Affidavits denying the debt sworn to by the plaintiff, cannot 
 properly be received. They were also of opinion, that the effect 
 of the temporary injunction, that can alone be properly granted 
 in such a case,, is not to restrain any removal or disposition what- 
 ever of the defendant's property, but only such a removal or dis- 
 position with intent to defraud creditors. The words of the clause 
 under consideration are : " "When during the pendency of an ac- 
 tion it shall appear by affidavit, that the defendant threatens, or 
 is about to remove or dispose of his property, with intent to de- 
 fraud his creditors, a temporary injunction may be granted to re- 
 strain such removal or disposition." 
 
 Section 220. 
 
 An injunction may be granted : — 
 
 1. At the time of commencing the action — 
 
 2. At any time afterwards before judgment — 
 
 3. Upon satisfying the court or judge, by affidavit — 
 
 4. Of the plaintiff, or some other person — 
 
 5. That sufficient grounds exist for it. 
 
 6. A copy of the affidavit must be served. 
 
 "At what time it 'may he granted. 
 
 " The injunction may be granted at the time of commencing 
 the action, or at any time afterwards before judgment, upon its 
 appearing satisfactorily to the court or judge, by the affidavit of 
 the plaintiff, or of any other person, that sufficient grounds exist 
 
§ 220.] INJUNCTION. 319 
 
 therefor. A coj^y of the affidavit must be served with the in- 
 junction." 
 
 This was the 193d section of the Code of 1848. JSTo change 
 has been made, except that in 1849 the words " to the court or" 
 were inserted. 
 
 1. Granted at commencement of action. — By section 127, a 
 civil action is commenced by service of a summons. By section 
 139, the court obtains jurisdiction from the service of the sum- 
 mons, or allowance of a provisional remedy. 
 
 The injunction order may be granted by the judge, and deliv- 
 ered to the party applying, before actual service of the summons, 
 that is, before the action has been absolutely commenced ; other- 
 wise, the words " at the time of commencing the action," would 
 be unmeaning. The order would necessarily be afterwards. But 
 the injunction order cannot be operative until the summons has 
 been served. A service prior to that of the summons would be 
 irregular. A contemporaneous service is correct. (Liffingwell 
 vs. Chave, 19 Howard, 54, Superior Court, Woodruif, Justice. 
 Concurred in by two justices.) 
 
 As spction 135 declares, there shall be service by publication, 
 and section 137 provides, that in cases mentioned in section 135, 
 the service of the summons shall be deemed complete at the expi- 
 ration of the time prescribed by the order for publication, it may 
 be considered that the injunction order may be made, at least at 
 the date of the order for publication. 
 
 2. Op afterwards before judgment. — The order may be had 
 after action commenced, at any time before judgment. This 
 clause implies that the ground of the order may have existed at 
 the commencement of the suit ; indeed may have been stated in 
 the complaint, though it has not been deemed necessary to apply 
 before ; or that the ground has arisen subsequently, when it must 
 be made to appear by affidavit, and when it could not have ap- 
 peared in the complaint, or a prayer been made for it. The clause 
 of the 119th section, " where during the litigation it shall appear 
 that the defendant is doing some act in violation of the plaintiff's 
 rights, respecting the subject of the action," imports, that facts 
 may have arisen after the complaint, to warrant an injunc- 
 tion. 
 
320 INJUNCTION. [§ 220. 
 
 Under the first branch of section 219, as before observed, the 
 injunction must be the relief, or part of the relief, demanded. 
 Under the second, it need not be so. But it does not follow, that 
 the facts may not have existed -when the suit was begun, pro- 
 vided there is a continuation of the prejudicial acts at the time 
 of the application. It is to appear that the party is doing, or 
 threatening to do, something violating the plaintiff's rights. 
 
 3. Judge to be satisfied by affidavit. — A complaint duly veri- 
 fied in the manner presciibed by the Code, serves as an affidavit 
 upon which to procure an injunction, if the facts are alleged in a 
 sufficiently positive manner. 
 
 In Woodruff vs. Fisher (17 Barb. Kep. 229) Justice Hand 
 held, that the positive verification of a complaint was tantamount 
 to an affidavit; that the true construction of sections 219 and 
 220 was, that if the motion for an injunction was for causes exist- 
 ing at the commencement of the suit, and these are fully set out in 
 the complaint, under positive allegations, and an injunction asked 
 thereon, the ordinary verification of the complaint was sufficient. 
 If the cause for an injunction arises during the litigation, then, 
 as a general rule, there nmst be an affidavit. 
 
 Levy vs. Levy (6 Abbott, 89), before Justice Hylton ; Badger 
 vs. Wagstaff (11 Howard, 562), before Justice Morris ; Minor vs. 
 Terry (6 Howard, 208), before Justice Gridley, are to the same 
 effect. I am not aware of any case to the contrary, except Milli- 
 kin vs. Gary (5 Howard, 272), examined by Justice Gridley. It 
 cannot but be observed, that the reasoning of justice Sill, in Mil- 
 likin vs. Gary, is very strong. 
 
 In 'Fowler vs. Burns (Superior Gourt, General Term, Nov. 
 1860, stated fully ^os^, section 225), it was observed, that the 
 complaint was a pleading in the cause ; and with or without a 
 verification, it is a pleading, and has its appropriate office. It is 
 not an affidavit, and there is neither reason nor propriety for call- 
 ing it an affidavit for any purpose. It may be annexed or pre- 
 fixed to an affidavit. When any paper is annexed to an affidavit 
 and it is sworn that the statements in such paper are true, the 
 the whole is an affidavit. The plaintiff may save himself the 
 trouble of transcribing the allegations of the complaint, by an- 
 nexing his complaint to an affidavit, which shall refer thereto, 
 and amount to an oath that the allegations are true. To say that 
 
§ 220.] INJUNCTION. 321 
 
 the complaint may be treated as an affidavit, will confuse, unless 
 it is understood that it must be so incorporated in an affidavit, 
 by reference, as to become part of it." ' 
 
 But the complaint must also be laid before the judge. 'No 
 injunction can be allowed without it. 
 
 In Morgan vs. Quaekenboss (22 Barbour, Y6), Mr. Justice Har- 
 ris, recognizing that this was indispensable (as it must appear by 
 the complaint that the plaintiff was entitled to relief), found the 
 document laid before him, though entitled an affidavit, possessed 
 all the essentials of a complaint, and acted upon it. 
 
 It is apparent, from section 219, connected with this section, 
 that the judge is to see that s, prima facie case is made out for 
 relief % the complaint, either for an injunction solely, or that the 
 remedy by injunction will be appropriate ; and, by an affidavit, 
 he is to be satisfied, prima facie, of the verity of the facts upon 
 which the injunction is sought. The complaint must be before 
 him, when the application is made during the litigation, as well 
 as at the commencement of the action, because he is to see that 
 the act sought to be restrained is in violation of the plaintiff's 
 rights, respecting the subject of the action, and tending to render 
 the judgment ineffectual. 
 
 4. Of the plaintiff, or some other person. — The section allows 
 the affidavit to be made by the plaintiff, or any other person. 
 
 It may be stated that, in general, the affidavit ought to be 
 made by the plaintiff himself, unless sufficient reasons are assigned 
 for his not doing so. This was held to be the English rule in 
 Spalding vs. Eeely (7 Simons' Eep. 377). 
 
 It is a common practice for the affidavit to be made by an 
 agent, or attorney in fact, where the plaintiff is a resident abroad, 
 or some peculiar circumstances prevent the plaintiff swearing to 
 it. One important rule regulates the subject. The court expects 
 the affidavits to come from those actually cognizant of the facts, 
 and who can make positive allegations respecting them. 
 
 In The Bank of Orleans vs. Skinner (9 Paige, 305), the Chan- 
 cellor said : " That an injunction bill, filed by a corporation, may 
 
 ' I think an attorney would act prudently, at least, if he made the material facta 
 on which the injunction should be granted the subject of a separate affidavit, even at 
 the expense of much repetition. 
 21 
 
322 INJUNCTION. [§ 220. 
 
 be verified by the solicitor or counsel, or other agent, without the 
 oath of any of the regular ofiicers, where the person verifying the 
 bill is better acquainted with the facts than any of such regular 
 oflScers. If there is any material allegation, on which the right 
 to an injunction rests, which is not within the personal knowledge 
 of the complainant, or of the agent or attorney who verifies the 
 bill, there should be annexed the additional affidavit of the person 
 from whom the information is derived, verifying its truth." 
 
 5. That sufficient grounds exist for it. — It seems to be settled 
 that the mind of the judge may be satisfied by affidavits, strictly 
 so termed, alone, or by the complaint alone, if duly verified and 
 sufficiently positive, or by the two united making out the suffi- 
 ciency of the grounds. These grounds must be the establishment, 
 presumptively at least, of a case within one or other of the provi- 
 sions of the 219th section. 
 
 The satisfaction is to be that judicial result which a judge 
 arrives at, on the case and proofs presented to him. 
 
 In general, an injunction will not be granted where the facts 
 are stated merely on information and belief. 
 
 In Jones vs. Atterbury (1 Code Eep. E". S. 87), Mr. Justice 
 Daly said : "An order for an injunction cannot be made, unless 
 the allegations in the complaint, upon which the party relies, are 
 verified positively. The material allegations in this complaint 
 are all stated on information and belief. Ifothing is sworn to as 
 of the party's own knowledge." 
 
 In Crocker vs. Baker (3 Abbott, 182), Mr. Justice Whiting 
 observed : The facts necessary to sustain an injunction must be 
 sworn to positively. If stated in the complaint positively, and 
 sworn to, it may be sufficient. If stated on information and be- 
 lief, they must be established by positive affidavits. Mere infor- 
 mation and belief are insufficient." 
 
 It was ruled, in Hertz vs. The Long Island Railroad Co. (13 
 Barbour, 646), that it was not competent for the plaintiff to add 
 materially to the causes of action set forth in his complaint, by 
 an affidavit. He may, for the purpose of obtaining an injunction, 
 thus fortify his original claims ; but he cannot enlarge them, or 
 prefer others. The plaintiff in that case had alleged that he had 
 been for five years past, and then was, possessed of the property 
 in question ; and, by his affidavit, he averred that he owned the 
 property in fee. 
 
§ 221.J INJUNCTION. 323 
 
 6. A copy of the affidavit to be served. — The concluding clause 
 of the section directs that a copy of the affidavit must he served 
 with the injunction. 
 
 In Penfield vs. White (8 Howard, 87), the only paper served 
 on the defendant with the injunction order was the summons. 
 " The defendant could not know whether the injunction was 
 granted on a complaint duly verified, so as to make it an affidavit, 
 or on a separate affidavit, independent of the complaint, or in the 
 ahsence of both. The object of the provision was to apprise the 
 defendant of all the facts alleged, on which the injunction was 
 granted, to enable him to proceed at once to vacate it." The 
 service was held irregular, and set aside. But a motion to vacate 
 the order was denied. No fact was before the court on which 
 that could be properly granted. 
 
 In Watson vs. Fuller (9 Howard, 425), a motion for an attach- 
 ment was denied, on the ground that the party was not served 
 with the afiidavit upon which it was allowed. 
 
 In Davis vs. The Mayor, &e. (1 Duer, 451, 485, 511) it was 
 intimated that the omission to serve the affidavits would not jus- 
 tify disobedience to the order, though it might be ground to set 
 it aside for irregularity. When the injunction is plain and ex- 
 plicit, and leaves no doubt as to the act to be done or refrained 
 from, it might be doubted whether the omission to serve the affi- 
 davits would justify disobedience. The purpose of this provision 
 of the Code was not that the party may determine whether he 
 will or will not obey, but to enable him, without delay, to apply 
 for a dissolution. 
 
 Section 321. 
 
 1. No injunction allowed after answer, unless upon notice or 
 order to show cause. 
 
 2. But restraint may be ordered until decision. 
 
 " Injunction after answer. 
 
 " An injunction shall not be allowed after the defendant shall 
 have answered, unless upon notice, or upon an order to show 
 cause ; but, in such case, the defendant may be restrained until 
 the decision of the court or judge granting or refusing the injunc- 
 tion." 
 
324 INJUNCTION. [§ 222. 
 
 This was section 194 of the Code of 1848, and no change has 
 been made in it since that time. 
 
 1. Notice necessary after answer. — By the English practice, 
 ■when a defendant had appeared and answered, an injunction 
 could be obtained, either upon the insufficiency of the answer, or 
 by moving for it on the merits as confessed in the answer. 
 
 In Mansfield vs. Cook (Exchequer, May, 1788, 1 Fowler's 
 Exch. Pr. 20Y), after demurrer overruled, and a plea ordered to 
 stand for. an answer, with liberty to except, an injunction was 
 allowed, upon the merits confessed in the answer after notice. 
 
 The practice of exceptions no longer exists ; but, upon a mo- 
 tion for an injunction after answer, the character of the answer 
 would be examined, to see whether it did not support, by admis- 
 sion or non-denial, the equity made by the complaint. 
 
 The application under this section is a motion strictly, and is 
 governed by the same rules. 
 
 As to the effect of the answer on the motion, and the admis- 
 sibility of affidavits generally, see post, sections 225 and 226. 
 
 2. Restraint until decision. — The party may be restrained from 
 doing the act sought to be enjoined until the hearing of the mo- 
 tion, and the decision of the court or judge thereupon. 
 
 Upon the nature of sucb an interim order, see post, section 
 223. 
 
 Upon the question whether security must be given on such an 
 order of restraint, see post, section 223. 
 
 Section 222. 
 
 1. "When no security is directed by statute — 
 
 2. A written undertaking must be required — 
 
 3. On the part of the plaintiff — 
 
 4. "With or without sureties — 
 
 5. To pay such damages to a specified amount — 
 
 6. As the party may sustain from the injunction — 
 
 7. If the court finally decide that the plaintiff was not enti- 
 
 tled to it. 
 S. The damages may be ascertained by reference or other- 
 wise. 
 
§ 222.] INJUNCTION. 325 , 
 
 '■^Security upon injunction — damages. 
 
 " "Where no provision is made by statute as to security upon 
 injunction, the court or judge shall require a written undertaking 
 on the part of the plaintiff, with or without sureties, to the effect 
 that the plaintiff will pay to the party enjoined such damages, 
 not exceeding an amount to be specified, 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 ascer- 
 tained by a reference, or otherwise, as the court shall direct." 
 
 This section is the same as that (the 195th) of 1848, except 
 that the words "the court" above italicized, were added in 1849. 
 
 History of the provision. — "The system of requiring security 
 was for a long time unknown in England, with the exception that 
 when a plaintiff at law was out of the kingdom, the plaintiff in 
 equity, after verdict, was compelled to deposit the amount recov- 
 ered (2 Cox's Cas. 330). It seems, however, that the practice is 
 now prevalent. (Novello vs. James, 31 En. L. & Eq. Eep. 280.) 
 
 " The 42d rule of the Court of Chancery of our State, adopted 
 in 1806, provided for a deposit in such a case. The Revised 
 Statutes of 1830 directed security to be given in various stages 
 of proceedings at law, which the injunction was to restrain. The 
 31st rule of 1839 provided, that where no special provision was 
 made by law as to security, the officer allowing an injunction might 
 .require of the complainant or his agent a bond with security, 
 or his own bond only, to the party enjoined, in such sum as might 
 be deemed reasonable, eonditione4 to pay such party all damages 
 he might sustain by reason of the injunction. The reasons for 
 adopting this rule will be found stated in Edwards vs. Bodine (4 
 Edwards' Ch. Eep. 192). On the revision of the rules, in 1837, 
 this rule was retained, with some modifications. One was, that 
 the security should not be less than $500 ; and this clause was 
 added : ' Such damages to be ascertained by a reference to a mas- 
 ter, or otherwise, as the Chancellor or Yice-Chancellor, having 
 jurisdiction of the cause, shall direct.' (Rule 31.) 
 
 " In the rules of the Supreme Court of 1847, after the new 
 constitution, the last-cited rule was adopted in nearly the same 
 language. There was added a clause that the injunction should 
 
326 
 
 INJUNCTION. [§ 222. 
 
 not be allowed on the plaintiff's bond only, unless he justified in 
 an amount equal to the penalty." (Eule 21.) Per Hoffman, J., 
 in Wilde vs. Joel (15 Howard, 320, 324). 
 
 1. Case of statutory provision for security.— It has been de- 
 cided that the provisions of the Eevised Statutes as to the security 
 to be given upon an action to set aside a judgment, and stay pro- 
 ceedings under it, are not repealed by the Code. 
 
 In Cook vs. Dickerson (2 Sandf. Super. Ct. Eep. 691, 1850), 
 the action was to set aside a confession of judgment on the ground 
 of fraud in not fulfilling the conditions on which it was given, of 
 canceling a mortgage and giving up securities. An injunction 
 had been granted on an undertaking executed by the plaintiff, in 
 the form prescribed by the Code. On appeal from an order to 
 set the injunction aside, it was held that the Eevised Statutes (2 
 E. S. 189, §§ 141 to 149 [147 to 154]), as to the terms on which 
 proceedings in a personal action after judgment should be stayed, 
 were still in force, unrepealed by the Code. 
 
 The case was again before the court, and is reported in 3d 
 Duer's Eeports, 324, from which it appears that the judgment 
 restrained was in the Supreme Court, and the undertaking was 
 by Cook and sureties, by which they became bound for a sum 
 not exceeding $500. The General Term affirmed an order dis- 
 solving an injunction, but ordered that it might be restored and 
 continued on giving a bond with two sureties in the amount of 
 the judgment. 
 
 The sections of the Eevised Statutes referred to in the case 
 relate to injunctions after judgments. The two preceding sec- 
 tions, to an interference before judgment. 
 
 It may be questioned whether, under the Code, there is room 
 for the application of these provisions. Every equitable defence 
 can be made in an action ; and after verdict, a motion in the 
 cause may be resorted to, probably on any ground which would 
 have justified equitable interference. Terms may be imposed as 
 the condition of a stay of proceedings. Indeed, it deserves con- 
 sideration, whether a motion is not the only proper course in the 
 same court, between the same parties, in every case specified in 
 the Eevised Statutes, after judgment; whether a new action 
 could be regular. Before judgment, the 220th section covers 
 most cases. A motion and a stay would seem to suflice for the 
 
§ 222.] INJUNCTION. 327 
 
 rest. The analogy of the security under the statute might pre- 
 vail. There may, perhaps, he some peculiar cases for a new 
 complaint and order. See further, on this point, title Eestraint of 
 Legal Proceedings, ante, page 298. 
 
 2. Written undertaking to be required. — Form. The undertak- 
 ing must be in writing. The form is not prescribed, and a sub- 
 stantial compliance with the object of the section will be suffi- 
 cient. 
 
 In The Episcopal Church of St. Peter's vs. Yarian (28 Bar- 
 bour, 644), the instrument was in the form of a penal bond, under 
 seal, with a condition in substance that prescribed, by the section, 
 as to the contents of an undertaking. It declared that the three 
 obligors, and each of them, were bound. It was held sufficient ; 
 and, also, that judgment could be had against two of them, and 
 in favor of the other, who had a particular defence. • 
 
 It seems that the undertaking need not contain the clause as 
 to a reference to ascertain the damages, and that the court may 
 order such a reference without it. , 
 
 Justice Parker, in Higgins vs. Allen (6 Howard, 30), said : 
 ""When an undertaking is executed under the 222d section of the 
 Code, which has been enacted in place of the 31st rule of the 
 Com-t of Chancery, it seems no provision for a reference is re- 
 quired to be inserted in it ; but the same section authorizes the 
 ascertainment of damages by reference, or otherwise. Under the 
 Code there is, therefore, jurisdiction to direct a reference without 
 action, though there be no such consent in the undertaking." 
 
 Approval and filing. — The undertaking must be approved by 
 the judge, the approval indorsed, and it must be filed with the 
 clerk, unless the Code expressly provide for a different disposition 
 thereof in a particular case. (§ 423, Kule 4.) 
 
 If this is neglected for five days after the order is granted, the 
 defendant is at liberty to move the court to vacate the proceed- 
 ings for irregularity, with costs, as if no undertaking had been 
 given. It is presumed that section 1Y4 will apply to such a case, 
 and time may be granted to file it. In O'Donnell vs. McMurn 
 (3 Abbott, 391), where the undertaking had been approved and 
 delivered to a clerk to be filed, who had neglected it, it was de- 
 cided that the costs of an application to dissolve should be paid 
 
328 INJ0NCTIOK. [§ 222. 
 
 by the plaintiff. Had the omission been by design, the injunc- 
 tion might have been vacated on that ground alone. 
 
 The undertaking must be acknowledged or proved in like 
 manner as deeds of real estate, before it shall be received or filed. 
 (Rule 6.) 
 
 If it is not properly proven or acknowledged, the defect may 
 be supplied on payment of costs. (Conklin vs. Dutcher, 1 Code 
 Rep. N. S. 49.) 
 
 3. To be on the part of the plaintiff. — It will be observed that 
 the language as to the undertaking is, in this respect, precisely 
 the same as that used in section 182. It is to be on the part of 
 the plaintiff, with or without sureties. See the construction of 
 this phrase, ante, tit. Arrest and Bail, § 182, p. 49. 
 
 In the Superior Court of New York, the plaintiff's own un- 
 dertaking will not be received, unless he justify as being a free- 
 holder or householder, and in double the sum specified over 
 and above all his debts and liabilities. (1 Sandf. Super. Ct. Rep. 
 701, a.) ^ 
 
 4. With or without sureties. ^In "Ward vs. Whitney (4 Selden, 
 442) it was held, under the attachment law, that a bond executed 
 with one surety was sufiicient. The statute requires a bond exe- 
 cuted by the plaintiff or his agent, with such sureties as shall be 
 approved of. 
 
 If a non-resident plaintiff apply for an injunction, he must fur- 
 nish an undertaking executed by a resident surety. (1 Sandf. 
 Superior Ct. Rep. 701, a.) 
 
 The justice approving of the security must require the sure- 
 ties to j ustify. (Rule 6.) The justification must be to the effect 
 that the surety is a freeholder or householder, and worth double 
 the sum specified over and above all his debts and liabilities. (1 
 Sandf. S.Ct. Rep. 701, «.) 
 
 If the sureties in an injunction undertaking become insolvent, 
 it is presumed an order may be made that new security be given, 
 or that the injunction be dissolved. 
 
 In Willett vs. Stringer (15 Howard, 310), on an application to 
 discharge a temporary injunction, an order was made that, upon 
 the defendant's giving security to the plaintiff, it should be va- 
 cated. A motion was afterwards made by the plaintifi' for a new 
 undertaking, on the ground of one of the sureties being insolvent. 
 
§ 222.] INJUNCTION. 329 
 
 The court held that there was a power to do so, or to restore the 
 injunction, which, on the ground of the security given, and in fa- 
 vor of the defendant, had been vacated. It was a matter of judi- 
 cial discretion, looking to the sufficiency of the security which 
 remained. 
 
 It was noticed, that it had been decided in the Superior Court, 
 that no such application could be made in the case of insolvency 
 of parties to an undertaking on an appeal.' 
 
 An appeal, once perfected, takes the case from the jurisdiction 
 of the court below, except as specially provided. But an injunc- 
 tion remains subject to its control, modification, and discharge, 
 during the progress of the action. The principle of Willett vs. 
 Stringer may, therefore, perhaps, be applicable to the ordinary 
 case of an injunction undertaking on the part of the plaintiff. 
 
 In Anderson vs. Bradford (5 J. J. Mai-shall, 74) it was ruled 
 that a motion might be made for further security, upon insol- 
 vency of a party to an injunction bond. 
 
 5. To pay damages to a specified amount. — The amount in 
 which the parties bind themselves must be specified, and the lia- 
 bility of the sureties will not exceed it. By the former rule (21 of 
 Supreme Court 1847), the sum was not to be less than $500. The 
 amount will of course vary in different cases. Upon an order to 
 show cause, and an injunction in the mean time, the amount will 
 be less than when the order is, until trial or further order. 
 
 The English practice seems to be, to take the bond or security 
 in a general form, to abide by any order the court might make as 
 to the payment of compensation for any damages sustained by 
 the defendant. (Novello vs. James, 31 En. L. & Eq. Eep. 280.) 
 
 In Dickerson vs. Cook (3 Duer, 324), the bond was in the sum 
 of $1,130 82, conditioned that the parties would pay to Dickerson, 
 &c., the said sum of $1,130 82, the amount of a judgment in his 
 favor, whenever ordered by the Superior Court. It was held very 
 doubtful whether he could recover against the sureties anything 
 beyond the amount specified, not even interest from the com- 
 mencement of the action. 
 
 In Lovelace vs. Burnham (1 Barb. Ch. Eep. 66), the Chancel- 
 
 ' The amendment of 1859, of section 335, provides for this in cases under that 
 section. 
 
330 mjuNCTioiT. [§ 222. 
 
 lor declared, tliat altliough the 31st rule fixed the minimum of 
 the penalty of the bond to be taken on allowing an injunction, 
 still a discretion was to be used in fixing the amount, so that it 
 shall in all cases be sufficient to cover the probable amount of 
 damages which the defendant may sustain. "Where the requisi- 
 tions of the rule were greatly, and without any sufficient expla- 
 nation, neglected, an injunction was set aside. 
 
 In Ryckman vs. Coleman (21 Howard's Pr. Rep. 404:), on a 
 motion to dissolve an injunction. Justice Ingraham considered 
 that the security given was altogether too small to justify re- 
 taining it. The damages that might be sustained could not in 
 anywise be satisfied by it. Having examined some questions in 
 the case, he observed that the motion should be granted. But 
 as the amount was large, and the plaintiff might wish to take the 
 opinion of the General Term on the questions involved, a stay of 
 proceedings might be had on the order granted, provided the 
 plaintiff increase the security given, by an undertaking in $10,000, 
 to be approved by a justice of the court. 
 
 6. Sustained by reason of the injunction. — The obligation of the 
 sureties is, strictly and exclusively, to pay the damages sustained 
 by reason of the injunction ; and, necessarily, by reason of the in- 
 junction then in existence and force. If that injunction is va- 
 cated, and another substituted or granted, the sureties upon the 
 first cannot remain responsible. 
 
 This is the substance of the decision in The Town of Guilford 
 vs. Cornell (4 Abbott, 220). The case of Diekerson vs. Cook (3 
 Duer, 324) appears to involve the same conclusion. (See page 
 335.) 
 
 7. Liability only on final decision. — The provision of the section 
 is, that the parties are to pay such damages, &c., if the court 
 shall finally decide that the plaintiff was not entitled to the in- 
 junction. 
 
 In Dunkin vs. Lawrence (1 Barb. Sup. Ct. Eep. 447), the in- 
 junction was dissolved on the matter of the complaint alone. The 
 court allowed a reference. It was considered that the case was 
 eventually decided under the rule as it existed before the Code. 
 The learned judge held, however, that if the dissolution had been 
 on bill and answer, it would have been otherwise. The injunc- 
 
§ 222.] INJUNCTION. 331 
 
 tion might perhaps have been reinstated on the proofs. That 
 would not have been an eventual decision. 
 
 In Sherman vs. The New^ York Central Mills Co. (11 Howard, 
 209), Justice Bacon held that the court must decide that the 
 plaintiff was not entitled to the order ; that this must be a final 
 decision, that is, one made at the termination of the action by a 
 judgment therein, or by the voluntary discontinuance of the suit ; 
 and that the decision must be, that the plaintiff was not, at the 
 time of obtaining the injunction, entitled thereto. 
 
 The plaintiff's attorney had given notice of an abandonment 
 of part of the injunction, but was proceeding with the action. 
 An application by the defendant for a reference was denied. 
 
 In Weeks vs. Southwick (12 Howard, 170), a referee had re- 
 ported, dismissing the complaint with costs, but no judgment 
 had been entered upon his report. A motion for a reference was 
 held to be premature. 
 
 But a dismissal of a complaint on a trial, and judgment duly 
 entered thereon, is an implied determination that the plaintiff 
 was not entitled to the injunction. (Loomis vs. Brown, 16 Bar- 
 Bour, 325.) 
 
 In Hope vs. Acker (7 Abbott, 308), while it was held that a 
 voluntary notice of discontinuance and offer of costs terminated 
 the action and vacated the injunction, and an order of discon- 
 tinuance might be made, the court would not, after such notice, 
 proceed to examine and decide the question, whether the plaintiff 
 was entitled to the injunction, or not. If the facts warranted an 
 action on the undertaking, the defendants could sue and recover 
 their damages. 
 
 In The Methodist Church vs. Barker (18 N. Y. Eep. 463), a 
 judgment was entered, on the 7th of March, dismissing the com- 
 plaint in the action in which the undertaking had been given ; 
 and on the 17th of March an order of reference to ascertain the 
 damage was made. An order dissolving the injunction had also 
 been made in the progress of the cause, before judgment. The 
 proceedings were sustained in the Court of Appeals. Justice 
 Comstock said : " I can conceive of no case in which such a ref- 
 erence can be defeated on the ground that it is too late after judg- 
 ment." 
 
 8. Mode of ascertaining damages,— The last clause of this 
 
332 INJUNCTION. [§ 222. 
 
 section is similar to that of the 31st rule of the Court of Chancery 
 of 1837, adopted in 1847 as one of the rules of the Supreme Court. 
 
 In Gracie vs. Sheldon (3 Barbour Sup. Ct. Eep. 232) it was held 
 that those rules required a clause to be inserted in the condition 
 of the bond itself, consenting that the damages should be sum- 
 marily ascertained upon a reference. The court could not, by a 
 rule, substitute a summary proceeding of its own, in place of the 
 admitted common-law remedy upon obligations of this descrip- 
 tion. 
 
 But the section of the Code is an act of the Legislature, au- 
 thorizing such a mode of settling the damages. The party who 
 executes an undertaking under it, is presumed to know the law, 
 and assent to be bound by it. It is, therefore, supposed that the 
 rule stated by Justice Parker, in Higgins vs. Allen (ut supra, p. 
 327), is correct. In Loomis vs. Brown (16 Barbour, 324), the clause 
 does not appear to have been in the undertaking, and an action 
 was ordered to be brought. 
 
 The order of reference must be applied for on notice to the 
 plaintiff in the action ; but notice to the sureties is not necessary. 
 Methodist Church vs. Barker {ut supra, p. 37) ; Dickerson m. 
 Cook (3 Duer, 324). 
 
 When judgment is pronounced, dismissing the complaint, the 
 court may perhaps adjudge that the plaintiff was not entitled to 
 the injunction. 
 
 In Griffin vs. Cranston (Special Term, Dec. 6, 1860), the ques- 
 tion was brought before Justice Hoffman, in settling the form of 
 a judgment. The complaint being dismissed, the defendants 
 proposed to insert in the judgment a declaration that the plaintiff 
 was not entitled to the injunction, and a reference to ascertain 
 the damages. The judge was clearly of opinion that the lat- 
 ter was not proper, — if for no other reason, that it might prevent 
 an appeal, as it would not be a final judgment ; certainly would 
 prevent one to the Court of Appeals. Upon consideration, he 
 also struck out the declaratory clause. It was wholly unneces- 
 sary. It was a consequence of a final decision, but not involved 
 in the regular issues upon which the court passed on a trial. 
 
 In Carpenter vs. Wright (4 Bosworth, 655), the plaintiff ob- 
 tained an injunction, giving the undertaking, with the clause, as 
 to a reference, in it. The injunction was vacated on motion. 
 
§ 222.] INJUNCTION. 333 
 
 The plaintiff then entered an order of discontinuance, paying the 
 costs. An order was then made, on notice, for a reference to ascer- 
 tain the damages of tlie defendant, which was affirmed on appeal. 
 
 The court observe that the reference will settle the measure 
 of liability, but not the fact of liability. That could be more 
 fitly determined in an action upon the undertaking. 
 
 And if there is a judgment in favor of the defendant (for 
 afiarmative relief, for example), which involves the conclusion 
 that the plaintiff was not so entitled, it would be regular and 
 proper so to adjudge, and direct a reference. 
 
 But it is perfectly settled by the Court of Appeals by the 
 case of The Methodist Church vs. Barker {ut supra), that after 
 the judgment of dismissal has been duly entered, a special appli- 
 cation may be made in the cause. In Loomis vs. Brown {ut 
 supra), the judgment had been entered, the roll filed, and judg- 
 ment docketed, and two months afterwards the order was made 
 that the damages be ascertained by action on the undertaking. 
 
 It is decided by the same case, in the Court of Appeals, that 
 notice need not be given to the sureties of the proceeding before 
 the referee. 
 
 The learned judge says : " He does not doubt that the court 
 • may direct that the sureties be notified of the proceedings. , They 
 may be heard on an application to set aside the report, and send 
 it back for correction. But these were questions of practice." 
 
 In several cases in which the author has made orders of this 
 nature, a clause has been inserted, directing such notice to be 
 given to the sureties. (See Wilde vs. Joel, 15 Howard, 321.) 
 
 What damages. — In the last-cited case, the authorities as to 
 items of damage which could be allowed were examined. It was 
 held— 
 
 That counsel fees attendant upon motions or proceedings to 
 dissolve the order were allowable. The claim was not confined 
 to costs alone. 
 
 That it was not essential that the fees should be actually paid. 
 If the client was liable, and the fees were reasonable, it was suf- 
 ficient. 
 
 Fees for services in the suit, not directly connected with, or 
 arising out of, the injunction, should not be allowed as part of the 
 damages. Thus fees in prosecuting a reference as to the validity 
 
334 INJUNCTION. [§ 222. 
 
 of an assignment, the assignee in which had been enjoined, were 
 refused. 
 
 The cases of Edwards vs. Bodine (4 Edw. Ch. Eep. 292; 11 
 Paige, 224) ; of Aldrich m. Eeynolds (1 Barbour Ch. Eep. 613) ; 
 and Coates vs. Coates (1 Duer, 664), were cited. See also The 
 Town of Guilford m. Cornell (4 Abbott, 220). 
 
 The cases in which special damages will have been incurred 
 from loss of the use of property, depreciation, and otherwise, will 
 of course vary, according to circumstances. 
 
 In Willett vs. Scovel (4 Abbott, 405), a sale under a chattel 
 mortgage was enjoined. Upon answer, the injunction was dis- 
 solved ; and, on notice to the plaintiff and the sureties in the 
 undertaking, a reference was had to ascertain the damages. The 
 referee or court allowed the costs before notiee of trial ; motion 
 fee on dissolving injunction, $10 ; counsel fee for drawing answer, 
 preparing brief, and arguing motion, $75 ; also, the fees and charges 
 of a constable for keeping the property after the injunction, auc- 
 tioneer's fees for advertising, &c., and attending the sale. 
 
 Fees were also allowed for keeping the property before injunc- 
 tion ; on what ground, does not appear. 
 
 There is one point adverted to in the case of "Wilde vs. Joel 
 {ut supra) which does not appear settled. It is, whether the 
 court can proceed, upon the report of a referee, and order pay- 
 ment against the parties to the undertaking, particularly against 
 the sureties ; or whether the reference is not merely to liq^uidate 
 the damages, and leave the recovery to be had by an action 
 on the bond. The eases of Bein vs. Heath (12 Howard's U. S. 
 Eep. 177), of Eussell vs. Elliott (2 Califor. Eep. 215), and of Kelly 
 vs. Lockwood (6 Kelly's G-eorgia Eep. 72), were referred to, and 
 the judge observed that he did not think there was authority 
 enough to warrant a proceeding to compel payment ; at least, it 
 was safest to bring an action. 
 
 In Willett vs. Scovill {ut supra), an order was made that the 
 plaintiff and the sureties in the undertaking pay the amount re- 
 ported by a referee, as adjusted by the court, and that the defend- 
 ants have judgment therefor. I have not met with any other 
 authority to this effect. There is an impression with the bar that 
 it can be done. 
 
 The court, under this clause of the section, may, of course, 
 
§ 223.] INJUNCTION. 335 
 
 direct an action to be brought on tlie undertaking, instead of a 
 reference. This is frequently done. 
 
 It is unsettled, by the authorities, whether leave of the court 
 should not be obtained for instituting an action on the under- 
 taking. It is, at least, most prudent to apply for it. (N. Y. 
 Central Ins. Co. vs. Saflford, 10 Howard, 34A ; liiggins vs. Allen, 
 6 Howard, 30 ; Griffin vs. Slate, 5 Howard, 205.) 
 
 Section 233. 
 
 1. Order to show cause in discretion of judge. 
 
 2. Restriction, in the mean time, may be ordered. 
 
 " Order to show cause — restraint in the mean time. 
 
 " If the court or judge deem it proper that the defendant, or 
 any of several defendants, should be heard before granting the 
 injunction, an order may be made requiring cause to be shown, 
 at a specified time and place, why the injunction should not be 
 granted ; and the defendant may, in the mean time, be restrained." 
 
 No change has been made in this section since 1818, when it 
 was the 196th, except by adding the wo-rds the court or, which 
 was done in 1849. 
 
 Mr. Drewry' speaks "of the modern practice which had grown 
 up in England of granting what are termed interim orders. They 
 are, in fact, temporary ex parte injunctions, which are granted 
 when the plaintiff, not showing quite a case for an injunction 
 absolute, shows a case for giving short notice, and for pro- 
 tection in the mean time. The interim order is, therefore, an in- 
 junction obtained expa/rte, to be in force until the injunction is 
 disposed of on notice. It is generally accompanied by putting 
 the plaintiff on terms to give an undertaking for any damage 
 done to the defendant by the interim injunction." 
 
 In The Methodist Church, &c. vs. Barker (18 IST. Y. Eep. 463), 
 Justice Comstock observes upon this section : " The temporary 
 
 ' Supplement to Drewry on Injunctions, p. 84 ; Law Library, Tol. 63. 
 
336 INJUNCTION. [§ 223. 
 
 restraint here mentioned is a part of the injunction relief which 
 the Code provides in the cases specified. All temporary injunc- 
 tions are now in the form of orders, instead of writs, as formerly ; 
 and an order which will expire on the day for showing cause, un- 
 less then continued, is, to all intents and purposes, an injunction 
 during the intervening time." 
 
 The very general practice of the fudges of the Superior Court 
 of New York has been to act under this section, and not grant an 
 injunction absolutely, or until further order, in the first instance. 
 The application then becomes a motion, subject to the same gen- 
 eral rules as other motions. The consequences are important, 
 particularly in relation to the question of the admissibility of affi- 
 davits on the plaintiff's part. This question is considered under 
 sections 225 and 226, post. 
 
 Security. — It was very early decided, in the Superior Court of 
 ITew York, that upon an order to show cause, and a restraint in 
 the mean time, security for damages should be required in the 
 same manner as under section 222, then section 195. (1 Sandf. 
 Sup. Ct. Eep. 701, a.) 
 
 Mr. Justice Comstock, in The Methodist Church vs. Barker 
 (18 1^. Y. Eep. 463), said : " That before such an order is made 
 (under this section), security may and should be required, as in 
 other cases under section 222. 
 
 Some of the justices departed from the view that security 
 was necessary in such a case, and the court reserved its opinion 
 upon the point. 
 
 Regarding this as a question of legal rule, it seems difficult to 
 avoid the effect of the 222d section, which prescribes peremp- 
 torily that the judge shall require security. This is an injunction, 
 though it last but a day. Looking at it as a matter of discretion, 
 it is much safer to adopt, as nearly an inflexible rule, the practice 
 of the Superior Court. 
 
§ 224.] ' INJUNCTION. 337 
 
 Section 224. 
 
 1. Injunction to suspend business of a corporation. 
 
 2. Only to be granted by the court, or a judge thereof. 
 
 3. Not to be granted without due notice to the proper officers 
 
 thereof — 
 
 4. Except where the people are a party to the proceedings — 
 
 5. And, except in certain cases, to enforce the liability of 
 
 stockholders, &c. — 
 
 6. Unless a written undertaking shall be given, as pre- 
 
 scribed — 
 
 7. To pay damages, if finally decided that the plaintiif was 
 
 not entitled to the order. 
 
 8. Damages to be ascertained by a reference or otherwise. 
 
 ^'■Security upon injunction- io suspend business of 
 corporation. 
 
 " An injunction to suspend the ordinary and general business 
 of a corporation shall not be granted, except by the court, or a 
 judge thereof. Nor shall it be granted without due notice of the 
 application therefor to the proper officers of the corporation, ex- 
 cept where the people of this State are a party to the proceedings, 
 and except in proceedings to enforce the liability of stockholders 
 in corporations and associations for banking purposes after the 
 first of January, one thousand eight hundred and fifty, as such 
 proceedings are or shall be provided by law ; unless the plaintiff 
 shall give a written undertaking, executed by two sufficient sure- 
 ties, to be approved by the court or judge, to the effect that the 
 plaintiff will pay all damages, not exceeding the sum to be men- 
 tioned in the undertaking, which such corporation may sustain 
 by reason of the injunction, if the court shall finally decide that 
 the plaintiff was not entitled thereto. The damages may be ascer- 
 tained by a reference or otherwise, as the court shall direct." 
 
 By the Code of 184:8, section 197 was precisely like the 
 present, except in not containing the exceptions. 
 
 In 1849, the two clauses containing the exceptions were added, 
 and the section has remained unaltered since. 
 22 
 
338 iiTJUNCTioN. [§ 224. 
 
 For the cases in wMcli injunctions may issue against corpora- 
 tions, see ante, under section 219. 
 
 It may be here noticed that it seems nearly certain that none 
 but a judge'of the Supreme Court can allow an injunction of the 
 nature referred to in this section. 
 
 These powers, before 1846, were vested in the Court of Chan- 
 cery, or Chancellor, and Vice-Chancellors. By rule 31 of 1830, 
 a direct application to the Chancellor or Yice-Chancellor having 
 jurisdiction was necessary. 
 
 The Constitution of 1846 abolished the Court of Chancery, 
 and established a Supreme Court, with general jurisdiction in law 
 and equity. The Judiciary Act of May 12, 1847, declared (§ 16) 
 that the Supreme Court should possess the same powers and exer- 
 cise the same jurisdiction as was possessed by the then present 
 Supreme Court and the Court of Chancery ; and the justices of 
 said court shall possess the powers and exercise the jurisdiction 
 now possessed and exercised by the justices of the Supreme Court, 
 Chancellor, Yice-Chancellors, and Circuit Judges, so far as the 
 powers and jurisdiction of said court and officers should be con- 
 sistent with the Constitution and the provisions of such act. 
 
 In Kattenshott m. The Astor Bank (2 Duer, 672), Mr. Justice 
 Bosworth, upon consultation, intimated strongly the opinion that 
 the Superior Court had no jurisdiction in a proceeding under the 
 Revised Statutes for the dissolution of a moneyed corporation. 
 
 In Hinds vs. The Canandaigua, &c., E. E. Co. (10 Howard, 
 487), supplementary proceedings were taken before a judge, un- 
 der section 292, upon a return of an execution unsatisfied. It 
 was held by the General Term of the 7th District, that the section 
 did not apply to corporations ; that the provisions of the Revised 
 Statutes as to proceedings in equity against corporations were yet 
 in force, except that the remedy was to be by action, in form the 
 same as in other actions. Those provisions were expressly pre- 
 served by section 471 of the Code. It was held, in Morgan vs. 
 The New York and Albany Railroad (10 Paige, 290), that the 
 provisions of the Revised Statutes, in reference to creditors' bills 
 against judgment debtors, did not apply to cases where the judg- 
 ment debtor was a corporation. But, in all such cases, proceed- 
 ings must be had under 2 R. S. sec. 3. 
 
 Notice. — Notice of the application must be given in all cases, 
 
§ 225.] mjuNCTioir. 339 
 
 except in the two specified cases of an action in the name of the 
 people, and where the proceeding is to enforce the liability of 
 stockholders (under the act of 1849, and its amendments). 
 
 Security. — The clause is that the plaintiff is to give an under- 
 taking, executed by two sufficient sureties. It need not, there- 
 fore, be executed by himself. 
 
 In Hutchinson m. The New York Central Mills (2 Abbotts' 
 Eep. 394), it was ruled that where a judgment creditor of an in- 
 solvent corporation brought suit for an injunction, to restrain 
 other creditors of the company from proceeding at law, and for 
 the appointment of a receiver and an. equitable distribution of the 
 corporate assets, he need not give the bond or make the deposit 
 prescribed by the Eevised Statutes respecting injunctions to stay 
 proceedings at law. (2 E. S. 188, § 139.) 
 
 The judge cites the 66th section of the statute (2 E. S. 466), and 
 says : " This-, I apprehend, is an independent provision of the 
 statute, and not at all subject to those general provisions in regard 
 to actions to stay proceedings at law, and which require a bond 
 to be executed, or a deposit to be made, before an injunction can 
 be obtained." 
 
 Section 225. 
 
 1. If an injunction is granted without notice — 
 
 2. The defendant may apply, on notice — 
 
 3. At any time before trial — 
 
 4. To any judge of the court in which the action is brought, 
 
 to vacate or modify it — 
 
 5. On the complaiiit and accompanying affidavits — « 
 
 6. Or upon affidavits on his part, with or without the answer. 
 
 " Motion to vacate or modify injtmction. 
 
 " If the injunction be granted by a judge of the court, or by a 
 county judge, without notice, the defendant, at any time before 
 the trial, may apply, upon notice, to any judge of the court in 
 which the action is brought, to vacate or modify the same. The 
 application may be made upon the complaint and the affidavits 
 
340 INJUNCTION. [§ 225. 
 
 on which the injunction was granted ; or upon afladavits on the 
 part of the defendant, with or without the answer." 
 
 The 198th section of the Code of 1848 was the same as the 
 present provision, and no alteration has been made since. 
 
 1. Injunction without notice. — The section applies only to the 
 case of an injunction ordered without notice. When, therefore, 
 it has been made on the regular notice for a motion, or an order to 
 show cause, the section will not apply, and the remedy, it would 
 seem, could only be by appeal under section 343, and the other 
 sections as to appeals. 
 
 The judge who made the order has the power to vacate an 
 ex 2)arte injunction order without notice, but it should only be 
 done where serious loss would arise from the delay in serving no- 
 tice. (Bruce vs. The Delaware and Hudson Canal Co., 8 How- 
 ard, 440. G. T., 3d District.) Section 324 applies to injunction 
 as well as other orders. 
 
 2. IVIotion to vacate. — The application must be on notice ; an 
 order to show cause is equivalent. 
 
 3. Before trial. — And must be made before trial. 
 
 4. To any judge of the court. — It may be made to, or the 
 order to show cause be granted by, any judge of the court in 
 which the action is brought. 
 
 5. On complaint and plaintiff's affidavits. — The motion may 
 be made on the plaintiff's case, as presented in his complaint, 
 and accompanying affidavits, if any, on which the injunction was 
 granted. The ground may be the insufficiency of the case made 
 for any relief whatever, its insufficiency for relief by injunction 
 at all, or for that injunction which has been allowed. 
 
 6. On affidavits of defendant, &c. — When the motion was 
 made on the complaint and answer, the ordinary rule before the 
 Code was that, if the whole merits and equity were fully denied 
 by the answer, the injunction should be dissolved. But there 
 were exceptions to tliis rule, and these were for the most part 
 resolvable into the principle of irreparable mischief; such as 
 eases of asserted waste, or of asserted mismanagement in partner- 
 ship concerns, or of asserted violations of copyrights or patent 
 rights. In cases of this sort, the court will look at the whole cir- 
 cumstances, and will continue or dissolve the injunction, in the 
 
§ 225.] INJUNCTION. 341 
 
 exercise of a sound discretion. This doctrine is, I think, fully 
 borne out by Lord Hardwieke, in Potter vs. Chapman (Ambler's 
 Eep. 99 ; 1 Dick. 146) ; by Lord Talbot, in Gibbs vs. Cole (3 P. 
 "Wms. 255) ; by Lord Kenyon, in Strathmore vs. Bowles (1 Cox. 
 Eep. 263 ; 2 Dick. 6T3) ; by Lord Eldon, in Norway m. Eowe 
 (19 Yesey, 153) ; and Peacock vs. Peacock (16 Vesey, 49). A 
 doubt, too, in point of law, will furnish sufficient ground against 
 dissolving an injuntion, as was ruled in Maxwell vs. Ward (11 
 Price E. lY). Indeed, Mr. Chancellor Kent, in Eoberts vs. An- 
 derson (2 John. Ch. E. 204), laid down the rule generally, " that 
 the granting and continuing of injunctions must always rest in 
 sound discretion, to be governed by the nature of the case." (And 
 see Story, Justice, in Poor vs. Carleton, 3 Sumner Eep. 70.) 
 
 The same rule is laid down in the cases of Moor vs. Hylton 
 (Devereux Eq. 429) ; Bank of Monroe vs. Sehermerhorn (Clarke's 
 Eep. 303) ; Merwin vs. Smith (1 Green's Ch. 138) ; and Chetwood 
 vs. Brittan (1 Green's Ch. 439). 
 
 Nature of the averments of the answer. — In Poor vs. Carleton 
 (3 Sumner, 70), before cited. Justice Story states another rule thus : 
 " But supposing the doctrine were as comprehensive as to the 
 dissolving a special injunction on the coming in of the answer as 
 the counsel of the defendants has contended, the question occurs 
 whether it is applicable to all kinds of answers which deny the 
 whole merits of the bill ; or whether it is applicable to such an- 
 swers only as contain statements and denials by defendants con- 
 usant of the facts, and denying the allegations upon their own 
 personal knowledge. It seems to me very clear upon principle 
 that it can apply to the latter only. The sole ground upon which 
 the defendants are entitled to a dissolution of the injunction upon 
 an answer is, that the answer in effect disproves the case made by 
 the bill, by the very evidence extracted from the conscience of 
 the defendant, upon the interrogation and discovery sought by 
 the plaintiff to establish it. But what sort of evidence can that 
 be, which consists in the mere negation of knowledge by the 
 party appealed to? It is upon this ground that it has been 
 held, and, in my opinion, very properly held, that if the an- 
 swer does not positively deny the material facts, or the denial 
 is merely from information and belief, it furnishes no ground 
 for an application to dissolve a special injunction. The cases 
 of Eoberts vs. Anderson (2 John. Ch. Eep. 202, 204) ; Ward 
 
342 INJUNCTION. [§ 225. . 
 
 vs. Yan Bokelin (1 Paige's Eep. 100) ; The Fulton Bank vs. The 
 ISTew York Sharon Canal Co. (1 Paige's Eep. 311) ; Eodgers vs. 
 Eodgers (1 Paige's Eep. 426), are fully in point." 
 
 Denial on information and belief. — A denial of the equity 
 of the bill, upon information and belief alone, was not enough to 
 obtain a dissolution of an injunction. 
 
 In Ward vs. Yan Bokelin (1 Paige, 100), the Chancellor said : 
 " The answer in this case is put in by defendants, who probably 
 knew nothing of the transactions charged in tbe bill to have been 
 fraudulent. Their answer of course can only deny the equity of 
 the bill, on information and belief. They cannot deny the facts 
 upon any information they possess. The answer, therefore, is 
 not sufficient to authorize a dissolution of the injunction." 
 
 New matter in answer. — An answer under the Code comprises 
 the plea as well as the answer of the Chancery system, apart 
 from the office of the latter as a response to interrogatories. If, 
 like a plea, the answer sets up new matter, as by way of avoid- 
 ance, it may be used on a motion to dissolve the injunction; but 
 I think it quite clear that it can be used only as an affidavit, so 
 as to admit of counter affidavits. 
 
 Mr. Justice Mason in Florence vs. Bates (2 Sandf. Sup. Court 
 Eep. 675) held, that an answer which set up matters of avoidance 
 could be used to vacate an injunction, as much as if it were a 
 full denial of the equity. The learned judge cites 3 Daniels Pr. 
 and Drewry on Injunctions, p. 411. The page in Daniel is 1831, 
 Am. Edition. Both Mr. Daniel and Mr. Drewry cite for the 
 proposition the case of Phillips vs. Langhorne (Dickens, 14S), 
 before Lord Hardwicke. 
 
 That case is undoubtedly expressly to the point, that after a 
 plea to the whole bill allowed, an injunction should be dissolved ; 
 for a plea allowed is to be considered a full answer. 
 
 And in Mount vs. Fenner (cited Dickens, 676), the bill was 
 for an injunction to stay the printing of the Book of Common 
 Prayer. Upon the answer, a motion was made to dissolve the 
 injunction, and affidavits were going to be read, but it being sug- 
 gested that the defendants had put in a plea which went to the 
 plaintiif 's title, the court saved the notice until after argument of 
 the plea. The plea was afterwards allowed, and there being then 
 an end of the plaintiff's equity, the defendant had an order to 
 dissolve the injunction. 
 
§ 225.] INJUNCTION. 343 
 
 But if the plea was ordered to stand for an answer, an injunc- 
 tion might be continued, or one granted, upon the case as thus 
 presented. (Mansfield vs. Cook in the Exchequer cited 1 Fow- 
 ler's Exch. Pr. 267.) 
 
 I do not see any decided contradiction between the rule that 
 a plea allowed is ground to dissolve an injunction, and the rule 
 explicitly stated in Allen vs. Crobcroft, as decided also by Lord 
 Hardwicke, and reported in Barnardiston (p. 373), that if an an- 
 swer admits the equity of the bill, but sets up new matter to 
 defeat it, the injunction shall be continued. Now a plea, even 
 assuming it not to be a negative plea to the whole bill allowed, 
 is a judicial decision that the plaintiif has no cause of action, 
 and so stands until a replication is filed to contest its truth. Mr. 
 Justice Mason condemns the case from the ill repute as a re- 
 porter of Barnardiston. 
 
 Beyond a doubt it is most consistent with the whole theory of 
 an answer in its double character as a response and a defence, 
 that the statement of new matter in avoidance should be regarded 
 as an affidavit merely, upon a motion to dissolve an injunction. 
 
 The authorities in our sister States which possess the equity 
 system, are numerous and decisive. Justice Mason cites two 
 cases from the Maryland Eeports, supporting the distinction 
 taken in the case from Barnardiston. It has been recognized in 
 the same State in the case of Derry vs. Eoberts (2 Maryl. Cb. 
 Decisions, 157). 
 
 The rule in North Carolina is, that the new matter may be 
 met by new affidavits. Lindsay vs. Etheridge (1 Dev. & Batt. 
 38) ; Wilson vs. Mace (2 Jones' Eq. Eep. 5) ; Duer vs. Erwin (7 
 Iredell Eq. Eep. 250). It is the same in Florida (Yonge vs. 
 McCormick, 6 Florida Eep. 368) ; in Alabama (17 Ala. Eep. 667, 
 Eembert vs. Brown) ; in Georgia (Lewis vs. Leake, 9 Geor. Eep. 
 95) ; and in the United States Court in California (United States 
 vs. Parrott, 1 McAllister C. C. Eep. 271). 
 
 So in New Jersey, in the case of Merwin vs. Smith (1 Green's 
 Ch. Eep. 182), Chancellor Pennington stated— "That he was 
 glad of the opportunity to have the rule settled as to the admis- 
 sibility of affidavits on a motion to dissolve an injunction. It 
 was always a subject of difficulty." 
 
 " The general rule is, that if an injunction is had on the affi- 
 
344 INJUNCTION-. [§ 225. 
 
 davit of tlie complainant (to tlie bill), and the motion to dissolve 
 is made on the answer alone, no affidavits on either side can be 
 used. There are exceptions to this rule in cases of waste and 
 irreparable injury." 
 
 " The allegations of the bill will be taken as true where not 
 met and denied by the answer. If the answer does not fully 
 meet the case disclosed by the bill, the injunction will be sus- 
 tained. 
 
 " Where new matter is contained in the answer not responsive 
 to the bill, which is relied on in any way to set aside the injunc- 
 tion, the complainant may read affidavits in contradiction of such 
 new matter." 
 
 In that case, the defendant declining to read the new matter 
 in his answer, upon the motion, the counter affidavits were re- 
 jected, and the motion was heard upon bill' and answer only. 
 
 The authorities since the Code upon the subject, are as fol- 
 lows : Mr. Justice "Woodruff, in The Merrimac Co. vs. Garner 
 (2 Abbott, 318) adverts to the question as one not then ne- 
 cessary to be decided. Justice Ingraham, in Minor vs. Bucking- 
 ham (8 Abbott, 68), appears to recognize the distinction, and to 
 give the full force of an answer only to one denying the equities 
 of the complaint. Justice Brady, in Powell vs. Clark (5 Abbott, 
 70), declared and acted upon this distinction. 
 
 It appears to me, that the point is established beyond any rea- 
 sonable doubt, that the plaintiff may repel matter of avoidance 
 in an answer, by further affidavits.' 
 
 Several defendants. Answers. — It was a general rule of the 
 Conrt of Chancery, that the motion to dissolve could not be 
 made, where there were several defendants, until all had an- 
 swered. But, if all the defendants were implicated in the 
 same charge, the court wonld require the answers of all, with- 
 out some special reason to the contrary. If the defendant on 
 whom the real gravamen rested had fully answered the bill, that 
 
 ' The case of Davis vs. HacHey (Supreme Court, April 1, 1862, 14 Abbott, 64, n.) 
 has been just published. Mr. Justice Barnard, after consulting with liis brethren, 
 held that repelling affidavits might be used by the plaintiff, to meet new matter set 
 up by the defendant. He thought, also, that the defendant might meet such affida- 
 vits by additional ones, on his own part. 
 
§ 226.] INJUNCTION. 3i5 
 
 probably -would be sufficient. (Depeyster vs. Graves, 2 Johns. 
 Ch. Eep. 148.) 
 
 In ISToble vs. "Wilson (1 Paige, 164) the Chancellor said : " In 
 this case, the defendants are all implicated in a charge of fraud, 
 and the exceptions seek a more full discovery of the evidence 
 thereof ; three of the defendants admit the exceptions to their 
 answer to be well taken, by submitting to answer them ; and the 
 Master has reported in favor of the exceptions to the answer of 
 the other defendant. In addition to this, the answers, as they 
 now stand, do not remove all suspicion of fraud, in relation to 
 the transactions referred to in the bill. The motion to dissolve 
 the injunction is, therefore, denied." 
 
 Diligence of plaintiff . — The plaintiff must use due diligence 
 in expediting his cause, or the injunction will be dissolved. 
 
 In Depeyster vs. Graves {ut supra) the Chancellor said : " No 
 steps have been taken in respect to the absent defendants, and no 
 excuse offered for the neglect. There is a want of due diligence 
 in the plaintiff since the obtaining the injunction ; and that is 
 always a cause for dissolving it." (IT Yesey, 281.) 
 
 If the ground for vacating an injunction has occurred subse- 
 quently to filing tlie answer, it is the course in England to intro- 
 duce the new matter by supplemental answer, and not to vacate 
 it upon affidavits. It would otherwise appear at the hearing, that 
 the injunction had been dissolved on facts not in issue in tlie 
 cause." (Stamps vs. The Birmingham, &c., Eailway Co. 2 Phil- 
 lips' Eep. 672.) 
 
 Counter affidavits. — As to the question of the admissibility 
 of further affidavits on the part of the plaintiff, see section 226. 
 
 Section 236. 
 
 " Affidavits on motion. 
 
 "If the application 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 
 injunction was granted." 
 
 The 199th section of 1848 was precisely the same as this sec- 
 tion, and no alteration has been subsequently made. 
 
346 INJUNCTION. [§ 226. 
 
 If the defendant move on affidavits alone, repelling affidavits 
 may, by the express language, be used ; if he move on affidavits, 
 or an affidavit with his answer, I understand the plaintiff may 
 equally resort to them. The disputed question is, when he moves 
 on answer alone. In two cases before the Superior Court, at Spe- 
 cial and General Term, in October "and November, 1860, the sub- 
 ject was extensively examined, and the cases compared. The 
 opinions delivered will exhibit all the questions and authorities 
 upon the point. 
 
 In Eedfield vs. Widdleton, before Justice Hoffman, at Special 
 Term (October 5, 1860), the plaintiff had an order to show cause 
 why an injunction should not issue, with a temporary stay. The 
 complaint alleged an agreement between the parties, under which 
 certain advance sheets of a work by Mr. French, an author and 
 resident of Great Britain, were delivered by the plaintiff to the 
 defendant, to have stereotyped and published. The plaintiff had 
 received them as Mr French's agent. The defendant, on the day 
 to show cause, relied on his answer, and his own accompanying 
 affidavit. It was very explicit in its denial as to the agreement ; 
 setting up an employment, for a limited time, of the plaintiff at a 
 salary. It claimed the absolute ownership of the plates, on vari- 
 ous grounds. 
 
 Affidavits of others were offered, on the part of the plaintiff, 
 and admitted, which bore partly upon the question of the agree- 
 ment, and particularly upon the facts stated from which the 
 claim of the absolute ownership by the defendant was drawn. 
 
 The following opinion was prepared, with a view to an ap- 
 peal, and to condense the views which had led the judge to simi- 
 lar rulings, in other cases : 
 
 " The practice before the Code was settled by rules and de- 
 cisions as follows : 
 
 " Although an answer under oath was waived, the defendant 
 could swear to his answer, for the purpose of moving to dissolve 
 the injunction. As evidence, the answer was to have no greater 
 force than the bill. (Eule 26 of Chancery, 1830 ; Eule 26 of Su- 
 preme Court, 1847.) An answer, even if denying the whole 
 equity, must have been duly verified by oath, to obtain a disso- 
 lution. (Eule 27.) "Where the plaintiff waived an answer on oath, 
 if in addition to his usual oath, the material facts in the bill on 
 
§ 226.] INJUNCTION. 347 
 
 whicli the injunction rested, were verified by the affidavit of a 
 credible and disinterested witness, annexed to and filed with the 
 bill, it should not be a matter of course to dissolve the injunction 
 on the oath of the defendant ; but the court might retain it till 
 the hearing. (Ibid.)" 
 
 " In cases of such affidavits accompanying the bill, the de- 
 fendant could, upon the motion, read affidavits of witnesses to 
 support his answer. (Haight vs. Case, 4 Paige, 525 ; Brown vs. 
 Haff, 5 Paige, 239.) 
 
 "In Markham vs. Markham (1 Barbour's Ch. Pep. 374) the 
 Chancellor ruled, that the defendant's affidavits must be served 
 with his answer, or with the notice of the motion to dissolve. 
 
 " The case of The Yillage of Seneca Falls vs. Matthews (9 
 Paige, 504) settled the important point of practice, that where 
 the complainant gave notice of an application for an injunction, 
 or where the defendant was required to show cause why an in- 
 junction should not issue, whether a temporary injunction is or 
 is not allowed in the mean time, the defendant may introduce 
 affidavits in opposition to the motion ; and this, although he has 
 put in an answer, denying the whole equity of the bill, or has not 
 answered fully. Upon an order to show cause why an injunction 
 should not be granted, the answer, if put in, is only used as a 
 sworn statement or affidavit, on the part of the defendant. 
 
 " And in Blunt vs. Hay (4 Sandf. Ch. Kep. 362), after appear- 
 ance to a supplemental bill and demurrer, upon a motion for an 
 injunction, affidavits as well on the part of the plaintiff as of the 
 defendant were admitted to be read. The Vice-Chancellor said : 
 ' The motion for an injunction is now made after appearance, and 
 upon notice. I perceive no good reason why it may not be made 
 and resisted like any other motion to the court, upon such affida- 
 vits and other papers as are pertinent, which either party may be 
 able to produce. Of course the injunction must be founded upon 
 the matter of the bill, but that matter may be established to the 
 satisfaction of the court, on a motion like this, by any competent 
 evidence, without relying upon the oath of the complainant.' 
 
 ' The Chancellor has decided that the defendants ma,j, in such 
 a case, introduce affidavits in opposition to the application ; and 
 it is obvious that the complainant may, with equal propriety, for- 
 tify his application by similar means.' 
 
348 INJUNCTION. [§ 226. 
 
 " Prior to the act of 15-16 Yictoria, ch. 86 (1852), tlie English 
 practice appears to have been this : If a special injunction was 
 obtained on affidavits, and the defendant moved to dissolve it 
 upon his answer, the affidavits used on obtaining the injunction 
 could be read. (Custance vs. Cunningham, IT E. L. & Eq. Eep. 
 501.) 
 
 "And if a motion to dissolve an injunction was made before 
 answer, upon affidavits on the part of the defendant in reply to 
 those on which the injunction was obtained, counter affidavits 
 were not in general admissible ; yet the court would, under special 
 circumstances, give permission to introduce them. (Anon. C. F. 
 Cooper's Kep. 4T1, n., cited Daniel's Pr., p. 1460.) 
 
 " The act referred to (15 & 16 Victoria, cap. 86, § 59) provides, 
 ' that upon an application for an injunction or receiver, or to dis- 
 solve an injunction, or discharge an order appointing a receiver, 
 the answer of the defendant shall, for the purpose of evidence on 
 such motion or petition, be regarded merely as an affidavit of the 
 defendant ; and affidavits may be received and read in opposition 
 thereto.' 
 
 " But in England, prior to this statute, and in our own State, 
 where the motion to dissolve was upon the bill and answer 
 merely, affidavits could not be used. The plaintiff could not sup- 
 port his bill, nor the defendant his answer by them. " The court 
 has gone so far as to admit affidavits to be read in support of alle- 
 gations made by the bill, where those allegations relate to the 
 acts of the parties, and the defendant, by his answer, has neither 
 admitted nor denied the truth of them. But it is repugnant to 
 the whole course of practice to allow affidavits to be received, in 
 contradiction to assertions positively made by the answer." (Lord 
 Eldon, in Morgan vs. Groode, 3 Merivale, 10.) 
 
 " In these cases, the question was simply — How has the answer 
 met the equity of the bill ? (Manchester vs. Day, 6 Paige, 295 ; 
 Haigbt vs. West, 4 Paige, 525 ; Clapham vs. "White, 8 Vesey, 35 ; 
 Drewry on Injunctions, p. 424, Law Library, Vol. 36 ; Eastburn 
 vs. Kirk, 1 John. Ch. Kep. 444 ; Gardner vs. McCutchin, 4 Bea- 
 van, 534 ; Barwell vs. Barwell, 5 Beavan, 373.) 
 
 " The character of an answer in equity may usefully be advert- 
 ed to. It was the defence, that is, the defendant's case ; and it was 
 his examination to matters charged in the bill, with a view to 
 
§ 226.] iNJUNCTioK. 349 
 
 make out tlie plaintiff's case, or displace the defendant's antici- 
 pated case. The two were united in one I'ecord. It has been ob- 
 seryed by two eminent writers, that in the Ecclesiastical Courts 
 the answer of a defendant called upon to make discovery tinder 
 oath, is wholly distinct from the responsive allegation which eon- 
 tains his defence. They regret that the same rule did not prevail 
 in courts of equity. (Wigram on Discovery, pp. 9, 10 ; Hare on 
 Discovery, 223.) 
 
 " In considering the answer in chancery, in the light of an ex- 
 amination, we find some points entirely settled. The complainant 
 had a clear right to a full reply to every pertinent allegation as to 
 which a disclosure was properly required. Special interrogato- 
 ries, or in most cases the general interrogatory, sufliced for this 
 purpose. 
 
 " In compensation for the advantage to the plaintiff of thus 
 obtaining testimony, the defendant had the benefit of using his 
 statements, when fairly responsive, on his own behalf; indeed, of 
 having such credit attributed to them, that one witness alone, 
 however positive, coiild not overturn them. But this privilege 
 did not extend to such parts of his answer as were not responsive — 
 as were in avoidance, as it was termed. Matters of this kind- he 
 was bound to prove at the hearing. 
 
 " Here we find the reason of the rule, that upon a motion to 
 dissolve an injunction, an answer denying all the equities was 
 sufiicient, and could not be opposed by afiidavits. The defendant 
 was, to these points, the plaintiff's own witness. 
 
 "Yet even this rule was far from being universal. Many ac- 
 knowledged exceptions existed. 
 
 " They are fully stated by Justice Story, in Poor vs. Cai'le- 
 ton (3 Sumner, YO). He says: 'In regard to the admission 
 of the affidavits, there are other considerations which require 
 attention. All the afiidavits, except that of Josiah Barker, 
 are simply to the point of the insolvency and indigence of 
 the defendant Isaac Carleton, and of the low character, intemper- 
 ance, and indigence of the defendant Richard Carleton. I cannot 
 doubt that they are admissible, for they are merely to collateral 
 matters, not touched by, or contradictory to, the answers. Tag- 
 gart vs. Hewlett (1 Merivale, 499), and Morgan vs. Goode (3 Mer- 
 ivale, 10), and other cases cited by Mr. Swanston in his note to 
 
350 INJUNCTION. [§ 226. 
 
 Smythe vs. Smythe (1 Swanston, 256), sufficiently establisli this 
 position. "Without doubt, the defendants are at liberty to repel 
 such affidavits by counter affidavits to the same points.' 
 
 " ' In regard to the affidavit of Barker, that is of a very different 
 character, and goes to the proof of the original transactions in the 
 bill, and is in direct contradiction to the negative allegations in 
 the answers.' 
 
 " The judge then examined numerous cases, and held, that the 
 affidavit should be admitted in the case before him, on the ground 
 of its analogy to cases of irreparable mischief. 
 
 " Such vras the state of the law upon this subject vi^hen the 
 Code was adopted. The regulations as to the course of proceed- 
 ing are found in the 225th and 226th sections. Ey the former, 
 the application to vacate or modify may be made upon the com- 
 plaint, and the affidavits on which the injunction was granted ; 
 or upon affidavits on the part of the defendant, with or without 
 the answer. By the latter section, if the application 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 injunction was granted. It is to 
 be noticed, that both these sections refer to a motion to dissolve 
 where the injunction has been granted without notice. The 225th 
 is expressly so. 
 
 " If the defendant uses both an answer and affidavits upon his 
 motion, the plaintiff may, as I apprehend, use not merely his 
 original affidavits, if any accompanied the complaint, but fresh 
 affidavits. I read the first clause of the 226th section, as if the 
 words ' with or without the answer,' of the 225th section, were 
 inserted. It is to be noticed, that no word of exclusion, such as 
 only or merely, is employed. 
 
 " If this view is correct, then the answer, when affidavits are 
 also used, becomes nothing more than an affidavit. If it is not 
 correct, then an inference may wijh much plausibility be deduced, 
 that if the application is on the answer and complaint alone, new 
 affidavits by the plaintiff are inadmissible. The Code has no ex- 
 plicit direction upon this point. It has no provision leading to 
 its solution, unless it be the inference I have noticed. The nature 
 of an answer before the Code has been previously noticed. 
 
 " Until the complainant got a perfect answer, free from excep- 
 
§226.] INJUNCTION. 351 
 
 tions, he Lad to deal with what purported to be an answer, only 
 as an affidavit. (Smith vs. Cleasly, 10 Simons, 91.) But when 
 the defendant had put in a full answer, everything in it directly 
 responsive to the allegations he had been required to answer, be- 
 came evidence in his own favor — evidence created by the com- 
 plainant himself. 
 
 " I do not understand that, under the Code, a defendant can, 
 under any circumstances, read his own answer in evidence. If, 
 indeed, the plaintiff read a passage, the defendant is entitled to 
 read the whole. (Gildersleave vs. Mahoney, 5 Duer, 383.) 
 
 " Mr. Justice Eoosevelt has held expressly, that he cannot avail 
 himself of his own averments, whether responsive or not. (Ames 
 vs. Hurlbut, 17 Howard, 185). Gridley, Justice, in Hascall vs. 
 The Madison University (6 Howard, 210 ; 1 Code Kep. E". S. 170), 
 decided in the same manner. 
 
 " If an answer sets up new matter in avoidance, I think it fully 
 settled that, as to such matter, it is but an affidavit, and may be 
 met by repelling affidavits on the part of the plaintiff. 
 
 [The observations upon this point, and the cases cited, which 
 are to be found under section 225, ante, were then stated.] 
 
 " Upon the general question, there are few points under the 
 Code upon which the authorities are more markedly coniiicting. 
 The court, in the Second District, at General Term, has held that 
 where the injunction is granted on a verified complaint, and the 
 defendant moves to dissolve it on a verified answer, the plaintiff 
 is entitled to read additional affidavits. (Jaques vs. Creson, 4 
 Abbott Eep. 282, March, 1857.) Mr. Justice Birdseye examines 
 the authorities then reported, and holds that the verified answer 
 is but an affidavit, and is to be used as such upon a motion to dis- 
 solve an injunction. The reasoning of Justice Gridley, in Hascall 
 vs. The Madison University (1 Code Eep. N. S. 170, and 6 How- 
 . ard, 210), is very cogent. 
 
 " On the other side, the Supreme Court, in the First District, 
 has, at General Term, decided, that if the defendant move on his 
 answer alone, the plaintiff cannot read new affidavits in opposi- 
 tion, but if he move upon affidavits, with or without the answer, 
 he may do so. The complaint and answer may, when verified, 
 have in certain proceedings all the force of an^affidavit, yet there 
 is no warrant for calling them affidavits. 
 
352 , INJUNCTION. [§ 226. 
 
 " In Minor vs. Euckingliam (8 Abbott 68), it was held, by Jus- 
 tice Ingraham, that where the answer was verified by an attor- 
 ney, who stated that everything alleged was true of his personal 
 knowledge, it was yet but an affidavit, and repelling affidavits 
 could be read. See also HoUins vs. Mallard (10 Howard, 540). 
 
 " In our own court, the case, of Hartwell vs. Kingsley (2 Sandf. 
 Sup. Ct. Eep. 674) is an express decision of Justice Sandford, 
 that where the motion to dissolve is upon the answer alone, the 
 plaintiff cannot use any affidavits except those upon which the 
 
 injunction was granted. The case of vs. Barker (March,. 
 
 1849) is cited in the note as deciding the same point by the whole 
 court. 
 
 " See also opinion of Woodruff, J., in The Merimack Man. Co. 
 vs. Garner (2 Abbott, 322). 
 
 " The rules actually settled upon the whole subject, appear to 
 be— 
 
 " If a motion is made for an injunction, on notice, or an order 
 to show cause is granted, with or without an ad interim injunc- 
 tion, the defendant may use his answer or affidavits, or both, in 
 opposing it ; and in either case the plaintiff may be allowed to 
 read further affidavits of any description. 
 
 " If an absolute injunction has been allowed, and a motion is 
 made to dissolve it upon affidavits merely, or upon answer and 
 affidavits, or an affidavit, the plaintiff may use further counter 
 affidavits. 
 
 " If the motion is made upon an answer alone, and such motion 
 rests solely or chiefly upon matters of avoidance stated in the an- 
 swer, such answer, or such portions of it, are to be regarded as 
 affidavit merely, and may be opposed. 
 
 " And, to my mind, the strength of reasoning and preponder- 
 ance of authority is in favor of the proposition, that under the 
 provisions of the Code, even in the simplest case of an answer 
 meeting every allegation on which an injunction depends, and 
 when nothing but the answer is used on the motion to dissolve, 
 repelling or rather supporting affidavits can be allowed. 
 
 " I might, however, feel compelled to follow the decisions in 
 our own court referred to ; but I cannot but think they will be 
 reversed, if the quejgtion comes fairly before the General Term. 
 
§ 226.] INJUNCTION. 353 
 
 "As this is a motion for an injunction, that point does not ne- 
 cessarily arise, and the affidavit was properly read." 
 
 The question came before the General Term on appeal, in the 
 case of Fowler vs. Burns, decided by Bosworth, Ch. J., and Hoff- 
 man, "Woodruff, Moncrief, and Robertson, J. J., November 10, 
 1860. The opinion was delivered by Mr. Justice "Woodruff : 
 
 " The complaint in this case alleges that the plaintiff was, on 
 the 25th of April, 1860, the owner of certain articles of furniture, 
 consigned to "William and Thomas Burns, doing business as com- 
 mission merchants, under the name of " Burns Brothers," for 
 sale : that Burns Brothers being insolvent, made a general as- 
 signment to their brother the defendant James Burns, for the 
 benefit of their creditors ; and among other property assigned 
 and delivered to him the said property of the plaintiff: That 
 the plaintiff, as soon as he was notified of the assignment, informed 
 the assignee that he was the owner of the said property, and for- 
 bade the sale thereof by him : That the said assignee nevertheless 
 sold and delivered the property, claiming to dispose of the pro- 
 ceeds according to the provisions of the said assignment; and 
 that the plaintiff has reason to fear, and does fear, that he will 
 distribute the same among the creditors of Burns Brothers ; and 
 that the said assignee is insolvent. "Upon these allegations, the 
 plaintiff prays an injunction to restrain such distribution, and 
 that the defendants pay over to the plaintiff the value of the 
 property, and for other relief, &c. The allegations in the com- 
 plaint are positive, and not stated on information or belief, and 
 complaint was verified in the usual manner by the plaintiff's 
 affidavit. 
 
 "An ex parte injunction having been granted, the defendants 
 served their answer, the averments and denials in which were 
 stated as of the positive knowledge of some or one of the defend- 
 ants, and which was in the usual form verified by the affidavit of 
 all of the defendants ; and thereupon they moved upon the com- 
 plaint and answer that the injunction order be vacated. On the 
 hearing of the motion, the plaintiff offered to read an affidavit in 
 opposition to the motion, and his affidavit was rejected, it being 
 decided by the Justice at Special Term that on a motion by the 
 defendants, upon such complaint and answer, the plaintiff could 
 not read affidavits in opposition thereto ; and the motion was 
 23 
 
354 iNJUKCTiON. [§ 226. 
 
 tTiereiipon granted. The plaintiiF has appealed to the General 
 Term from the order dissolving the injunction. 
 
 " It will suffice to say of the contents of the answer, that it 
 denied that Burns Brothers were commission merchants ; or that 
 the plaintiff ever owned the property mentioned in the com- 
 plaint, or that he ever consigned it, or any part of it, to the said 
 Burns Brothers, for sale on commission or otherwise ; and alleges 
 that the firm of Burns Brothers were the sole owners thereof ; 
 that they purchased the same in October, 1859. It admits the 
 insolvency of Burns Brothers, and their assignment, and that 
 James Burns has sold the property at auction, and intends to 
 apply the proceeds according to the trusts in the assignment, by 
 paying the debts of Burns Brothers, and denies that James Burns, 
 the assignee, is insolvent ; and, in short, it fully meets the case 
 made in the complaint, and if unexplained and uncontradicted, 
 overcomes the equities shown thereby. 
 
 " The affidavit offered by the plaintiff explained the contradic- 
 tion between the complaint and the answer, and tended to sustain 
 the allegations of the plaintiff. 
 
 "If the affidavit was properly rejected, the motion to vacate 
 the injunction order was properly granted, in conformity with 
 well-settled rules governing the subject. 
 
 " The important question upon the appeal before us, therefore, 
 is whether, when a motion to vacate an injunction order is made, 
 by a defendant upon the verified complaint and his verified an- 
 swer, the plaintiff may oppose the same by affidavits on his 
 part? 
 
 " Under our former system of practice in the Court of Chan- 
 cery, it was settled that in such case a plaintiff could not read 
 affidavits. It was, therefore, the practice to annex to the bill of 
 complaint such affidavits as the plaintiffs desired, and expected 
 to rely upon, to sustain his injunction, and thus by anticipation 
 meet and overcome any case which he supposed the defendant 
 might make by his answer. (1 Paige Eep. 164 ; 4 ibid. 111.) 
 
 " Under. the impression produced by long familiarity with the 
 Chancery practice, the provisions of the Code were approached 
 and examined by the Bench and the Bar, and several decisions 
 were made to the effect that when the defendant moved in the 
 
§ 226.] INJUNCTION. 355 
 
 complaint and answer, the plaintiff could not oppose the motion 
 by new affidavits. 
 
 " The section to which this construction was given is the 226th, 
 which reads as follows : 
 
 " ' If the application 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 injunction was granted.' 
 
 " It has been repeatedly held, that an answer duly verified is 
 not an affidavit on the part of the defendant, within the meaning 
 of this section, and that opinion was expressed by myself as early 
 as 1855, in The Merrimack Company vs. Garner {i E. D. Smith, 
 385), following in this particular Servoss vs. Stannard (2 Code 
 Keporter, 56) ; Hartwell vs. Kingsley (2 Sandf. Supr. Ct. Eep. 
 674) ; and a decision of the General Term of this court there re- 
 ferred to. 
 
 " In some of the early cases it was held that an injunction could 
 not properly be granted upon the complaint, when verified in 
 the ordinary manner prescribed by the Code, but that an affida- 
 vit must be made in some form more positively authenticating 
 the allegations therein ; and also, that on the motion to dissolve, 
 the answer verified in the ordinary mode could not be deemed an 
 affidavit, and be used to rebut the case made by a complaint sus- 
 tained by a proper affidavit. Benson vs. Fash (1 Code Eep. 50) ; 
 Eoome vs. Webb (ibid. 114) ; Milliken vs. Cary (id. 250.) 
 
 " More recently it was held by the General Term of the Su- 
 preme Court of the Eirst District, in Blatchford vs. The l^ew 
 Haven Eailroad Co. (T Abbott, 322), that if the plaintiff in the 
 verification of the complaint, swears positively to the facts stated 
 therein, it is sufficient to authorize the granting of an injunction. 
 But the opinion seems to hold that the word affidavit used in the 
 226th section of the Code, cannot be construed to mean " An- 
 swer," and therefore that when the defendant does not us© an 
 affidavit or affidavits on his behalf, the plaintiff is precluded from 
 opposing his motion by new affidavits. 
 
 "In Minor vs. Buckingham (8 Abbott, 68), and in Powell vs. 
 Clark (5 Abbott, 70), the question whether the plaintiff could 
 oppose the motion to dissolve by new affidavits, when the defend- 
 ant moves on his answer, is said to depend upon the contents of 
 
356 INJUNCTION. [§ 226. 
 
 the answer ; and if it contain new matter, not in mere denial of 
 the plaintiff's allegations, the plaintiffs may read affidavits on the 
 motion. 
 
 " On the other hand, in Eoome vs. Webb (1 Code Kep. 114), 
 where it was held by Justice Parker that a complaint verified 
 only according to the requirements of the Code, was not sufficient 
 to authorize an injunction, and that an answer thus verified was 
 not sufficient to support a motion to dissolve, it was also held that 
 positive verification of the allegations in the complaint would 
 make it sufficient, and that if the defendant moved on an answer 
 thus verified, the plaintiff may oppose the motion by affidavits. 
 
 " In Hascall vs. Madison University (1 Code E., N". S.), it was 
 held by Justice Gridley that when the motion is founded on the 
 complaint and a verified answer, the plaintiff may oppose by affi- 
 davits ; and to the like effect is Krom vs. Hogan {i How. Pr. Eep. 
 225) ; Schoonmaker vs. The Eeformed Dutch Church (5 id. 265) ; 
 Hollins vs. Mallerd (10 id. 540) ; and Jaques vs. Areson (4 Ab- 
 bott, 282). 
 
 " So much diversity of opinion has existed on the subject, that 
 we have deemed it proper to examine the question, and, aided by 
 the discussion since had of the subject, and the opinions of other 
 courts, inquire whether the decision of this court, made soon after 
 the Code was passed, was correct ; and that examination has led 
 us to a conclusion that the decision made herein at Special Term, 
 though made in conformity with the early decision of our own 
 court, is not in accordance with the true meaning of the Code. 
 
 " And first, it is proper to say that we do not think that this 
 question depends upon the manner in which the complaint or the 
 answer is verified. If they are not verified at all, then plainly 
 the plaintiff cannot have an injunction on his complaint. And 
 if the plaintiff have in a proper manner shown himself prima 
 facie entitled to an injunction, an answer not verified will be of 
 no service to the defendant on a motion to dissolve the injunc- 
 tion. 
 
 " If the complaint be verified, and may be treated as an affida- 
 vit, the fact that the verification is in the form prescribed by the 
 Code for verifying pleadings, is not a conclusive objection to the 
 granting of an injunction. The form of the allegations in the 
 complaint must be regarded, and if in reading the allegations in 
 
. § 226.] INJUNCTION. 357 
 
 connection with the verification, enough is sworn to to show that 
 the plaintiff is entitled to the injunction, it may be granted ; it 
 would, we think, be unwise to say of the ordinary verification, 
 that when read in connection with the complaint, it may not 
 prima facie establish the plaintiff's case, and warrant an injunc- 
 tion, whatever the allegations in the complaint may be. Like 
 observations in respect to an answer are pertinent, if that may be 
 used as the ground of a motion to dissolve an injunction. 
 
 " But without dwelling upon the mere forms by which the 
 plaintiff may establish the facts stated in the complaint, it is 
 clear that he cannot be entitled to an injunction, unless these 
 facts are authenticated in a mode amounting, in substance, to a 
 positive oath. And if an answer can be used, and is relied upon 
 as a ground for dissolving the injunction, the facts stated, or the 
 denials made, must be authenticated in like manner. 
 
 "Assuming, then, that the plaintiff has, by his complaint and 
 the verification thereof, or by other affidavits, shown himself j?«'- 
 mafaoie entitled to the injunction, and that the defendant moves 
 to dissolve upon the complaint, and an answer sufficiently authen- 
 ticated, can the plaintiff oppose the motion by affidavits ? 
 
 "At the hazard of going over the same ground that has been 
 already traversed by others, in the cases above referred to, I deem 
 it proper to review briefly the sections of the chapter relating to 
 this subject, which bear pointedly on the question, premising 
 that the titles or headings of the various sections are part of the 
 enactment itself. 
 
 " Section 219 declares ' in what cases ' an injunction may 
 be granted : 1. "Where the case made by the complaint, if 
 true, entitles the party to the relief demanded, and such relief 
 consists in the^pestraint sought. 2. When during the litigation 
 it shall appear that the defendant is doing, or threatens to do, 
 some act which calls for such interference, &c. The third case 
 is not material to this discussion. 
 
 " Section 220 declares ' at what time it may be granted,' viz., 
 at the time of commencing the action, or at any time afterwards 
 before judgment. And therein follows the indispensable condi- 
 tion upon which, and upon which alone, the court or judge have 
 any authority to grant the order, to wit, ' upon its appearing 
 satisfactorily to the court or judge, by the affidavit of the plaintiff, 
 
358 INJUNCTION. [§ 226, 
 
 or of any other person, that sufficient grounds exist therefor ;' 
 and it is added, ' a copy of the affidavit must be served with 
 the injunction.' 
 
 "Now, whatever the ease made by the complaint maybe, there 
 is no warrant whatever for an injunction order, unless it satisfac- 
 torily appear by affidavit, that the grounds therefor exist. No 
 other section enlarges the authority, and without an affidavit no 
 order can issue. An affidavit must be presented to the court or 
 judge, and a copy of that affidavit must be served on the defend- 
 ant. 
 
 " The obvious truth of this construction has led the courts to 
 say, that within the meaning of this section, a complaint may be 
 treated as an affidavit, (though in Milliken vs. Gary, 3 Code Eep. 
 250, it was held that, when verified in the ordinary form, it could 
 not). See Minor vs. Terry (6 Howard, 211) ; Smith vs. Koss (id. 
 124) ; Penfield vs. Webb (8 id. 87) ; Levy vs. Ely (16 Howard, 
 395) ; Woodruff -us. Fisher (17 Barbour, 221). 
 
 " Concurring in the result thus stated, it is more simple, and 
 will tend less to confusion, to call things by their right names, 
 and to adhere to what has been stated to be the only rule pre- 
 scribed by the Code, and to the indispensable condition above 
 stated. The complaint is a pleading in the cause ; with or with- 
 out verification, it is a pleading, and has its appropriate office. 
 It is not an affidavit, and there is neither reason nor propriety in 
 calling it an affidavit, for any purpose. It may be annexed, or 
 prefixed, to an affidavit. That affidavit may, by reference to its 
 allegations, be made to incorporate them in the affidavit ; but it 
 is the affidavit upon which the application must be made. When 
 any paper is annexed to an affidavit, and it is sworn that the 
 statements in such paper are true, the whole is ^n affidavit. If 
 the affidavit annexed to the complaint, also serve the purpose of 
 verifying the complaint, so as to require the defendant to also 
 verify his answer, the whole may be called a complaint and veri- 
 fication ; but for the purpose of being used on an application for 
 an injunction, it is an affidavit. In other words, as the plaintiff 
 must apply for an injunction by affidavit, he may save himself 
 the trouble of transcribing the allegations in his complaint, by 
 annexing his complaint to an affidavit, which shall refer thereto, 
 and amount to an oath that the allegations are true ; and so, 
 
§ 226.] INJUNCTION. 359 
 
 what is in itself but a pleading, shall be, in fact, a part of the affi- 
 davit itself, by incorporation therein ; and it still remains true, 
 that the injunction is granted on its appearing by affida/oit, and 
 not in any other manner — by affidavit in fact, and not by con- 
 struction, that sufficient grounds exist therefor. 
 
 " This criticism, I am aware, is in no wise material, except for 
 the purpose of simplicity in the discussion, and clearness in 
 showing, that the Code is, in this respect, simple and consistent 
 in all its provisions on the subject. To say that the complaint 
 may be treated as an affidavit, will confuse, unless it is under- 
 stood that it must be so incorporated in an affidavit by reference, 
 as to become a part of it, and then the whole does, in fact, be- 
 come one affidavit. The circumstance that the paper bo annexed 
 is a pleading in the cause, does not make the whole any the less 
 one affidavit. 
 
 " I pass next to the motion to vacate or modify the injunction 
 (§§ 225, 226), and here the Code is no less explicit. The applica- 
 tion may be made in either of two modes:— 
 
 " First. — Upon the complaint and the affidavits upon which the 
 injunction was granted. There is nothing in this showing that 
 an injunction can be granted upon the complaint, nor anything 
 inconsistent with the views already expressed. It may be very 
 material to examine the complaint, to see whether it states a 
 cause of action, or whether it has stated a case within the 219tli 
 section, and just as material whether the complaint is verified or 
 not ; but on the question, whether the facts relied upon as sus- 
 taining the injunction, are properly sustained by proof (that is, 
 whether the condition upon which alone the court or judge was 
 warranted in granting the injunction, was complied with), the 
 affidavit or affidavits alone are to be consulted. If such affida- 
 vits contain, by formal statement, all the necessary facts, they are 
 sufficient. If they are drawn so as to avoid needless repetition, 
 by embodying the allegations of the complaint therein by refer- 
 ence, they are affidavits still, and alike sufficient. Both ques- 
 tions may, therefore, arise on such a motion. Does the complaint 
 state a cause of action and a proper case, and do the affidavits 
 sustain the case upon which an injunction is claimed? 
 
 '■'■Second. — The defendant may move upon affidavits on his part, 
 with or without the answer. 
 
360 INJUNCTION. [§ 226. 
 
 " Here the Code consistently prescribes that the proofs shall be 
 affidavits. It permits the defendant to move, not upon his an- 
 swer with or without affidavits, but upon affidamts he may use 
 his answer as auxiliary to his motion, or not, as he pleases ; but 
 there is nothing to warrant the idea that he may move on his 
 answer as such. That, like the complaint, is a pleading. But, 
 as has been shown, in relation to the allegations in the complaint, 
 so in relation to the averments and denials in an answer, they 
 may be made to form a part of his aflQdavit or affidavits. And, 
 as before, it is not necessary that the words thereof should be re- 
 peated by actual transcription into the body of the affidavit, the 
 answer, or any part of it deemed material, may be so annexed 
 to and sworn to by the affidavit, that it becomes incorporated 
 therein by reference, and the whole will form one affidavit ; and 
 again, as before, the fact that it may also serve all the purposes 
 of, and be in fact one of the pleadings, does not make the whole 
 when so authenticated any the less one affidavit. In such case, 
 the defendant does not move on the answer alone, nor on the 
 answer used as an affidavit, but he moves on an affidavit with 
 the answer. 
 
 "Under the views thus stated, the veriiication of the complaint 
 and the verification of the answer may or may not be a sufficient 
 affidavit to obtain the order, or on which to move to vacate it. 
 The point before us is, and I think it has been sufficiently shown, 
 that the plaintiff must apply for the injunction by affidavit, and 
 however he may incorporate the allegations of his complaint 
 therein, it is still an affidavit ; and the defendant, if he moves to 
 vacate upon any papers on his part, must move on affidavit, and 
 has no warrant for moving on anything on his part without an 
 affidavit ; and though he embody the answer therein, it will and 
 must be an affidavit still. 
 
 " The next section (§ 226) thus provides, that if the application 
 by the defendant be made upon affidavits on his part, the plain- 
 tiff may oppose the same by affidavits or other proofs, in addition 
 to those on which the injunction was granted. 
 
 " If the construction given to the language of the previous sec- 
 tions is correct, the result is inevitable. The defendant cannot 
 move on his answer without an affidavit. In whatever mode his 
 affidavit is constructed, and though it be a mere oath that the 
 
§ 226.] INJUNCTION. 361 
 
 facts stated in his answer are true, it is an affidavit ; and there- 
 fore, of necessity, if the defendant reads on the motion what 
 alone, by the previous section, he is authorized to read on his 
 own part, the plaintiff is at liberty to read affidavits in opposi- 
 tion to the motion. 
 
 " The Code has treated of complaint and answer in this entire 
 chapter as pleadings. It has described the proofs to be used in 
 obtaining or in vacating an order for an injunction as affidavits, 
 and when-the defendant presents such proofs as the ground of a 
 motion to vacate the order, the plaintiff may produce and read 
 new or further affidavits. 
 
 " The fact that this court has held otherwise, and that there has 
 been much diversity of decision, has led me to a somewhat pro- 
 lix discussion, and it may be to a repetition of what has been 
 more concisely said by other judges, who, in the cases above re- 
 ferred to, have come to the same conclusion. 
 
 " It follows that the rejection of the affidavit offered by the 
 plaintiff at Special Term was erroneous. We might, perhaps, 
 having that affidavit before us, proceed to dispose of the motion 
 on the whole merits appearing from all the papers ; but possibly, 
 had the judge received the affidavit, the defendant might have 
 shown that good reasons existed for allowing him to produce fur- 
 ther proofs, or for withdrawing his motion, or for taking a denial 
 with leave to renew. We deem it most prudent and best calcu- 
 lated to do justice, to reverse the order, with leave to the defend- 
 ant to renew his motion. The costs of the motion at Special 
 Term, $10, to be costs in the cause, and abide the event of the 
 suit. Under the circumstances, the costs of the appeal should be 
 costs in the cause, and abide the event of the suit." 
 
362 INJUNCTION. {^Miscellaneous. 
 
 Miscellam,eous Subjects. 
 
 1. Servants and agents, how bound. 
 
 2. Members of a corporation. 
 
 3. As to persons not parties to tlie record. 
 
 4. Knowledge of order, when equivalent to service. 
 
 5. Effect of an amendment. 
 
 6. Eifect of an appeal. 
 
 7. Effect of an abatement. 
 
 8. Effect of a lis ;pendens filed. 
 
 9. Renewing an injunction on new matter. 
 
 10. Mandatory injunctions. 
 
 11. Breach of an injunction, and its consequences. 
 
 1. Servants and agents, how bound. — The writ of injunction, 
 by the almost uniform practice, contained a clause enjoining the 
 party's agents, servants, attorneys, &c., as well as himself, from 
 doing the act forbidden. The order under the Code generally 
 contains a similar provision. 
 
 In Lewes m. Morgan (5 Price's Eep. 42) it was held, that where 
 a receiver of rents and profits had been enjoined from further re- 
 ceiving, &c., the court would commit his attorney for a breach of 
 the order, although he, living at a distance in the country, had 
 not been served with the injunction, where it satisfactorily ap- 
 peared that he knew of the order. 
 
 In Lord Wellington vs. The Earl of Mornington (11 Beavan, 
 180, 181) the injunction omitted the words agents and servants. 
 The steward and agent of the defendant united with him in com- 
 mitting a breach, with knowledge of the order. It was held, that 
 although he could not be proceeded against regularly for a viola- 
 tion of the injunction not served, yet he could be punished for a 
 contempt of the order known to him to be in force, and as a party 
 to the breach. 
 
 2. Members of a corporation. — In Davis vs. The Mayor of 
 New York (1 Duer's Eep. 451, 482) the subject of an injunction 
 binding the members of a corporation, and subjecting them to 
 punishment for its violation, was fully discussed. It Avas laid 
 down, " that an order which, restraining a corporation from doing 
 
Miscellaneous.'] injunction. 363 
 
 an act, restrains every officer of it from doing the thing prohib- 
 ited ; and if he does the act, knowing that the order has been 
 made, he is chargeable with the consequences of a violation of an 
 order of the court. The mandate in such cases may be exclu- 
 sively directed to the corporate body by its corporate name ; and 
 there are numerous decisions which show that when such is the 
 form of the order or writ, it is operative and binding, not only 
 upon the corporation itself, but upon every person whose personal 
 action, as a member or officer of the corporate body, it seeks to 
 restrain or control. Every such person is as fully bound to per- 
 sonal obedience as if personally named in the process, and conse- 
 quently is just as liable for his disobedience. (1 Barb. Ch. Eep. 
 636.) "We understood the learned counsel of the defendants to 
 admit, that in the case of a mandamus, the law is such as we have 
 stated ; and we are clear in the opinion, that in respect to the 
 persons upon whom it operates, there can be no distinction be- 
 tween a mandamus and an injunction." These views are substan- 
 tially sustained in the Court of Appeals, in The People ex rel. 
 Sturtevant (5 Selden, 263). 
 
 3. As to persons not parties to the record. — There are sev- 
 eral cases in which the court will restrain persons not parties to 
 the record, nor the agents of such parties. 
 
 Thus, in The Attorney-General vs. Tlie Duke of Ancaster 
 (Dickens, 68), an injunction was allowed against a tenant in pos- 
 session, not a party, to stay the commission of waste. 
 
 In Cassamayer vs. Strode (1 Simons'and St. 381) an injunction 
 was allowed against a purchaser who had been let into possession 
 without paying the purchase money, from committing waste, in 
 cutting timber, &c. " The purchaser under a decree does, by the 
 act of purchase, submit himself to the jurisdiction of the court, 
 as to all matters connected with that character." 
 
 And in Walton vs. Johnson (15 Simons, 352) a tenant to a 
 receiver was enjoined from removing hay, fodder, and manure, 
 which, it was contrary to the custo'm of the country for a tenant 
 from year to year to remove. 
 
 So, in Cholmondely vs. Clinton (19 Yesey, 261), the applica- 
 tion was for an injunction restraining Moutriou from acting as 
 attorney or solicitor of the plaintiff, and from communicating any- 
 thing which had come to his knowledge as attorney or solicitor 
 
364: INJUNCTION. {^Miscellaneous. 
 
 of Lord Clinton, It is not stated in the report that it was granted, 
 but there can be little doubt it was so, or would have been if 
 pressed. (See Drewry on Injunctions, 370.) 
 
 4. Knowledge of order when equivalent to service. — Actual 
 knowledge of an order having been made or directed for an in- 
 junction, is equivalent to service upon the party or his agents. 
 
 In Osborn vs. Tenant (14 Yesoy, 136), on a motion for a com- 
 mitment for breach of an injunction, it appeared that the defend- 
 ant and his attorney were in court when the order was made. 
 Lord Eldon held this to be sufficient. 
 
 Yasandran vs. Eose (2 Jac. & "Walk. 264) is to the same point. 
 The Lord Chancellor observed that the rule should be subject to 
 the observation that no delay should take place as to drawing up 
 the order and getting it served. 
 
 So, in The People vs. Brower (4 Paige, 406), the Chancellor 
 stated it to be the settled practice of the court that, if an order is 
 served upon a solicitor, and knowledge thereof is brought home 
 to the party whose duty it is to obey it, he may be punished for 
 a willful disobedience of the order, in the same manner as if it 
 had been personally served on himself. The rule is also recog- 
 nized in Davis vs. The Mayor of ISTew York (1 Duer's Eep. 510). 
 
 5. Effect of an amendment.— It was settled by the Court of 
 Chancery of the State of New York, that an amendment by leave 
 of the court did not vacate an injvmction, even if the clause with- 
 out prejudice was omitted in the order of amendment. 
 
 The cases are stated in Hoffman's Practice, vol. I., p. 301, et 
 seq. In Selden vs. Yermilya (4 Sandf. Ch. Eep. 676), Yice- 
 Chancellor Sandford stated such to be the rule. 
 
 In Hope vs. The Sixth Avenue E. E. Co. (Superior Court, 
 Special Term, Feb. 1854, Hoffman, Justice), the subject was 
 examined upon an application to amend in various particulars. 
 One of the proposed amendments was merely the addition or sub- 
 stitution of a party. As to this, the court observed : " This part 
 of the motion is free from difficulty. Several individuals named 
 were made parties to the original complaint, as persons associated 
 with others, and managing and using the railroad, and doing 
 business under the name and style of the Sixth Avenue Eailroad 
 Company. Those individuals put in an answer, in which they 
 stated that the association called the Sixth Avenue Eailroad Com- 
 
Miscellaneous.] mjUNCTioN. 365 
 
 pany had become dissolved, and, on the 30th December, 1851, 
 transferred all their property and right to a corporation called 
 "The Sixth Avenue Railroad Company, in the City of New 
 York." 
 
 " This, then, is merely the case of a necessary party, discov- 
 ered by the answer of a defendant. An amendment to bring 
 such party in, without affecting an inj unction, is matter of course 
 in such a case. Where nothing more is requisite than an allega- 
 tion appropriate to show why he is a party, Yice-Chancellor Sand- 
 ford adopted the rule stated in Hoffman's Practice, and held that 
 an amendment of an injunction bill, made by leave of the court, 
 would not affect an injunction, even if the order did not express 
 that it was without prejudice. (Selden vs. Vermilya, 4 Sandf. 
 Ch. Eep. 576 ; 1 Hoffman's Practice, 301.) 
 
 " Nor is it an objection to the allowance of this amendment 
 that the record will then present together the original defendants 
 who disclaim all title, and the additional defendants in whom it 
 is vested. It would be unnecessary, perhaps premature, for the 
 plaintiffs to move to strike out the former defendants, until the 
 new parties are admitted. It is not absolutely certain that they 
 may not be still retained. It will be a matter of disclaimer if 
 they are retained in the amended complaint. They may wait 
 until the hearing, when they will have their costs, and may move 
 to dismiss the action as to themselves." 
 
 Amendments of another class are those which tend to add to 
 and support the equities of the plaintiff's case, or supply some 
 defect in the manner in which it has been stated. 
 
 In the case of Hope vs. The Eighth Avenue Eailroad,' an 
 amendment of this nature was allowed. The court observes : " In 
 the original complaint it is alleged that, by reason of certain 
 resolutions passed fn the month of July, 1851, and subsequently, 
 permission was given to the associations called respectively The 
 Sixth and the Eighth Avenue Eailroad Companies, to lay a rail- 
 road track through certain streets of the city, commencing at the 
 intersection of Chambers Street and West Broadway, etc. It is 
 proposed in an amendment to set out these resolutions at length. 
 
 " If this were a bill in equity, before the Code, it would have 
 been a matter of course to have set them forth in that manner. 
 
 ' Superior Court, Feb. 1854, before Hoffman, Justice. 
 
366 INJUNCTION. [Miscellaneous. 
 
 The old orders of Lord Coventry (Beames' Orders, 69) have not 
 been interpreted as prohibiting the setting out an instrument 
 verbatim, vs^hich lies at the foundation of a complainant's right, 
 or aids in its intelligible assertion. (See 1 Daniel's Practice, 
 346.) For example, if letters are relied upon as constituting an 
 agreement, they may be set out at length. (6 Mad. Eep. 17.) 
 
 " I do not understand the Code to interfere with this rule. 
 These resolutions are not merely evidence of the facts alleged, 
 but contain the facts themselves. They are not mere conclusions 
 of law ; and I do not think them chargeable with redundancy. 
 When a pleader states that certain resolutions contain a grant, or 
 bestow a power, and asks a court to act upon them, the natural 
 demand is for their exhibition. 
 
 " Then the questions are, whether the introduction of the reso- 
 lutions by an amendment of a sworn complaint, makes a new 
 case, or one conflicting with the old one; and next, whether 
 such a new or repugnant case can now be made byan amend- 
 ment, and yet the existing injunction be supported, or one be 
 allowed. 
 
 " The careful opinion of Yice-Chancellor McCoun, in Yerplanck 
 vs. The Mercantile Insurance Co. (1 Edw. Ch. Eep. 46), has been 
 the leading case in our courts since it was pronounced ; and the 
 summary of it is, that a party under the privilege of amending, 
 could not so vary a sworn bill, as to make a new case ; that ma- 
 terial and substantive statements which had been sworn to, could 
 not be stricken out, though they might be corrected by the addi- 
 tion of explanatory and supplementary statements, with leave of 
 the court. It deserves notice, that a bill not sworn to, might be 
 amended in any particular, and to any extent, even so as to make 
 a totally distinct and repugnant case. (Hall vs. Pomfret, Dan- 
 iel's Eep. Ill ; Eikey vs. Kimmis, 1 Beatty's Eep. 310.) 
 
 "We should, however, observe, that a ' subpoena' which brought 
 a party into court, was to answer a bill exhibited against him. 
 What that bill was he ascertained upon procuring a copy. But, 
 under the Code, the summons is to state, either that the plaintiff 
 will take judgment for the sum specified, or will apply to the 
 court for the relief demanded in the complaint (§ 129) ; and 
 where the complaint is not served, notice of the place at which 
 it is, or will be filed, must be given (section 130). So, the com- 
 
Miscellaneous.} injunction. 367 
 
 plaint is to contain a demand of the relief to which the plaintiff 
 thinks himself entitled. 
 
 " This shows that before appearance, at any rate, the plaintiff 
 cannot amend as of course, so as to substitute a new and different 
 cause of action on the amended pleading. (Field vs. Stone, 8 
 Howard, 46.) And as the summons cannot be amended without 
 leave of the court, an amendment making a new case, and for a 
 different relief, would seem irregular. (1 Code Eep., N. S., 157.) 
 "At any rate, whether amended before appearance or answer, 
 a service must be made of the amended pleading, and the time 
 of the defendant commences from that period. (Section 172, and 
 1 Code Eep. 37. See, also, 2 Sandf. S. Ct. Eep. 651.) 
 
 " But, under the 173d section of the Code, as amended in 1852, 
 an amendment may be allowed by the court, by inserting other 
 allegations material to the case; and the clause, that the amend- 
 ment shall not substantially change the claim or defence, is con- 
 fined to the conforming of pleadings to the facts proved, of course 
 at a trial. Justice Harris, in Beardesley vs. Storm (7 Howard, 
 296), treats the Code as not permitting the insertion of allega- 
 tions which may change entirely the cause of action. Before the 
 amendment. Justice Daly, of the Common Pleas, held that the 
 Code was to be understood in the way in which it is now 
 amended. (Chapman vs. "Webb, 1 Code Eep., IST. S., 388.) The 
 cause of action ma^ be changed, if the claim, viz., tlie particular 
 relief dernanded, remains the same. 
 
 " It is obvious that a new case may be made in an amended 
 complaint, which shall not be so contradictory to the former 
 case as to involve the party swearing to each in falsehood. Of 
 course, no court would grant or sustain an injunction, where such 
 was the alternative. 
 
 " I think, as the law of amendment now stands, this may be 
 safely stated as to the effect of amendments upon an injunc- 
 tion. 
 
 " If they tend to support the ground on which the injunction 
 rests, by other facts or matters, they are, of course, admissible, 
 and will not affect it. 
 
 " If they tend to supply other grounds on which it may be 
 sustained, not involving a contradiction of sworn allegations of 
 fact, they are also admissible. And if (with the like qualifica- 
 
368 INJUNCTION. [Miscellaneous. 
 
 tion) they furnish reasons for not only continuing, but for enlarg- 
 ing the injunction, they may be allowed. Thus, if the court can 
 conclude that, had the original complaint been in the same form 
 as it will be if amended, the injunction would have been allowed 
 as it stands, or a more extended injunction would have been 
 made, and no contradiction as to facts exists, I think the amend- 
 ments may be admitted, and may properly influence the question 
 of the injunction. 
 
 " There will be left one case which may possibly arise, when 
 the amendment removes entirely the foundation on which the 
 injunction order proceeded, but substitutes another and sufficient 
 one. I think that, in such a case, by our course of practice, the 
 injunction does not become ipso facto vacated, and that the de- 
 fendant must still apply to dissolve it. And then the rules upon 
 reviving an injunction which had dropped upon amendment, or 
 been dissolved, will apply. A special motion was necessary. 
 (Eden on Injunction, 91.) So, upon a supplemental bill, the 
 original injunction did not fall ; or, if it had been dissolved, it 
 could be renewed. (Darcy vs. Sumner, 2 MoUoy, 359 ; Fanning 
 vs. Dunham, 4 Johns. Oh. Rep. 35.) 
 
 " Testing the proposed amendment now under consideration 
 by these principles, it is plain that it contradicts nothing of fact 
 contained in the original complaint. It is equally plain that it 
 does not change the ground on which the injunction was allowed. 
 It may be, that by raising another question, viz., as to the legal- 
 ity of the acts of the corporation, it may strengthen the plaintiff's 
 right to relief, in the identical form in which it was granted. 
 Certainly it cannot weaken it. It may suggest and require that 
 the Attorney-General be made a party. That could not affect a 
 proceeding warranted by what was in the original complaint. 
 The plaintiffs aver that it will enable them to raise the question 
 of legality of the acts of the corporation. It is admissible as an 
 additional ground»for the same relief, because it does not displace 
 the cause of action on which the interposition of the court has 
 already been had." The amendment was permitted. 
 
 6. Effect of an appeal. — This subject may be considered in 
 two aspects. In respect to an appeal from an order granting or 
 discharging an injunction as a provisional remedy — an interim 
 injunction ; and an appeal from a judgment granting a perpetual 
 injunction, or denying it. 
 
■Miscellaneous.} injunction. SCO 
 
 From order at 8;pecial Term. — An appeal lies from an order 
 made at Special Term, or by a single judge, to the General Term, 
 ■when the order grants or refuses, continues or modifies, a provis- 
 ional remedy. (Section 349.) 
 
 If the order grants, continues, or modifies an injunction, the 
 appeal of itself leaves it unaffected. If the order denies an in- 
 junction, the appeal of course cannot create one. If any difiiculty 
 exists, it is when the order dissolves an injunction. 
 
 Before the Code, it was well settled that an appeal (as one 
 from the Chancellor to the Court of Errors) had not the effect of 
 reviving the injunction. 
 
 In Wood m. Dwight (Y John. Ch. Eep. 295) the Chancellor 
 said that, after an order dissolving an injunction was entered, no 
 subsequent appeal could of itself affect the validity of the order, 
 or revive the process and give it force and effect. An appeal 
 only stays future proceedings in the cause, but here is no further 
 proceeding. The order is perfect and finished the moment it is 
 entered ; and if the injunction could be revived by the mere act 
 of the party in filing an appeal, it would be giving to him not 
 only a power of control over the orders of the court, but of creat- 
 ing an injunction. 
 
 The Supreme Court of this State, in Hoyt vs. Gelston (13 John. 
 Eep. 139), held that an injunction was not revived by an appeal 
 so as to operate as a stay of proceedings at law. When a process 
 is once discharged, it is gone forever, and it can never be revived 
 except by a new exercise of judicial power. 
 
 In Hart vs. The Mayor, &c., of Albany (3 Paige's Eep. 381), 
 upon the coming in of the answer the injunction was dissolved. 
 (See ibid., p. 213.) An appeal was taken to the Court of Errors. 
 Then a petition was presented, stating the proceedings, that the 
 destruction of the storehouse would be of serious injury to the 
 complainants, if thej succeeded in their appeal, but that it could 
 not be of any material damage to the defendants or the public to 
 have it remain in its present situation until the decision of the 
 Court of Errors. An order was asked, restricting the defendants 
 from proceeding pending the appeal. 
 
 The Chancellor, after a very extended examination, held that 
 an appeal from an order dissolving an injunction did not re- 
 store it. 
 
 24 
 
370 INJUNCTION. [Miscellaneous. 
 
 In Graves m. Maguire (6 Paige, 379), the Chancellor said : 
 " The effect of an appeal, after the proper steps have been taken 
 to render it a stay of proceedings upon the order or decree ap- 
 pealed from, is to leave the proceedings in the same situation as 
 they were at the time of perfecting such appeal, but not as they 
 were before the order or decree appealed from was entered. If 
 the order appealed from was an order granting an injunction, the 
 same is not dissolved by the appeal, although the power of the 
 court below to punish the party for a breach of the injunction 
 pending the appeal, might, perhaps, be suspended until such ap- 
 peal was disposed of. (2 E. §. 607, § 89.) And where the appeal 
 is from an order dissolving the injunction, such appeal is wholly 
 inoperative, and cannot have the effect to restrain the proceedings 
 formerly enjoined until such order is reversed, so as to restore the 
 binding force of the injunction." 
 
 In Stone vs. Carlan (3 Code Reporter, 103) there was an in- 
 junction order granted, then an appeal, and afterwards a viola- 
 tion. On an order to show cause why an attachment should not 
 issue, it was held that section 349 did not allow an appeal from 
 an order to have the same effect as a stay, as sections 348 and 
 342. Section 342 did not apply to injunction orders. An attach- 
 ment was allowed. 
 
 But the Chancellor, in Hart vs. The Mayor of Albany {ut su- 
 pra), expressly held that circumstances would justify the court, 
 after an appeal, in exercising an original jurisdiction to restore an 
 injunction ; in effect, to suspend the operation of the order of dis- 
 solution. He made an order to that effect upon certain condi- 
 tions. Some traces of a similar power are found in what are 
 termed suspension orders in the English practice. 
 
 In general, these orders stay the execution of something 
 directed, or permitted to be done, by the order appealed from. 
 This was the case in Lewes vs. Morgan (5 Price, 468), cited by 
 Chancellor Walworth. The orders of the court, before made, so 
 far as they directed the delivering up of possession of the premi- 
 ses, were suspended till further order ; but so far as they operated 
 to restrain the defendant in any respect, were to remain in their 
 full force. 
 
 In Walburn vs. Ingilby (1 Mylne & Keen, 61, 86), Lord Broug- 
 ham observed : " If this motion were granted upon the allegation 
 
Miscellaneous.} injunction. 371 
 
 that refusing it will enable a party to do something which cannot 
 be undone, or to obtain some advantage which can never after- 
 wards be wrested from him, it is impossible to conceive any case 
 of an order for paying money out of court, for dissolving an in- 
 junction, for appointing a receiver, in which the same ground 
 existing much more plainly, the same course must not be pur- 
 sued. And thus the very cases where it is of the most essential 
 importance that speedy execution should take place, will be those 
 in which the argument for suspending execution will be most 
 powerful." In other and better words — in the language of Lord 
 Eldon — " the arm of the court will»be palsied." (See Huguenin 
 m. Bazely, 16 Vesey, 216.) 
 
 Yet the Court of Chancery did sometimes exercise the power. 
 The appeal from an order of the Special Term does not (as I ap- 
 prehend it now settled) per se stay proceedings. (1 Duer, 622 ; 
 4 AbTjott, 285.) But the judge below may make an order stay- 
 ing proceedings. 
 
 Now the suspension of the execution of an order, the execu- 
 tion of which will give the benefit of a declared right to a party, 
 has its converse in the removing of an interdict from doing some- 
 thing prejudicial to an alleged right, which the court has said 
 does not exist. In such case the decision is questioned by an ap- 
 peal. In the former case, the power to stay is undoubted. It 
 would seem to follow, logically, that it exists in the latter. 
 
 The better conclusion seems to be, that the mere power vests 
 in a judge at Special Term to make an interim injunction, after 
 an appeal from his order dissolving one. 
 
 After' judgment. — Mr. Justice Harris, in Hoyt vs. Carter (7 
 Howard, 140), had dismissed a complaint in an action in which a 
 temporary injunction had been granted. He filed his decision, 
 and judgment was entered. Subsequently he made an order so 
 far modifying his decision as to continue the original injunction, 
 to stand in force until the time for the plaintiff to appeal should 
 have expired. The action was to restrain the diversion of a wa- 
 ter-course, and the affidavit showed that operations had been com- 
 menced by the defendant to divert it since the decision. The 
 learned justice discharged his own order, but without prejudice 
 to the right of the plaintiff to apply to the court, upon notice, to 
 restrain the proceedings of the defendant until the decision upon 
 
372 mjuNCTioN. [^Miscellaneous. 
 
 the appeal, if any had been or should be taken. He referred to 
 Hart vs. The Mayor of Albany {ut supra). 
 
 In The Town of Guilford vs. Cornell (4 Abbott, 220) the Gen- 
 eral Term reversed a judgment granting a perpetual injunction, 
 and gave judgment for the defendant with costs. After the plain- 
 tiff had appealed to the Court of Appeals, he obtained an order 
 at the General Term continuing the injunction theretofore granted, 
 until the decision of the Court of Appeals. The judgment was 
 affirmed. It was held by Justice Balcom, that the sureties in the 
 original undertaking were not liable for damages from the con- 
 tinuance of the injunction and in consequence of the appeal. It 
 was a new injunction, and a new undertaking should have been 
 required. 
 
 When a judgment has been obtained for a perpetual injunc- 
 tion, an order to stay proceedings, on the ground of an intended 
 appeal, cannot be sustained. 
 
 This was decided in Howe vs. Searing (Gen. Term Superior 
 Court, June, 1860). The General Term had affirmed a judgment 
 for a perpetual injunction against continuing the name of Howe's 
 Bakery, on signs, wagons, &c. An order granting a stay of pro- 
 ceedings on the judgment until the decision of the appeal to be 
 taken to the Court of Appeals, if such appeal was perfected in 
 ten days, was reversed. The court below could not interfere with 
 the execution of a judgment of the General Term ; and when an 
 appeal was taken and perfected, section 342 would operate as a 
 stay. If it did not, no other mode was provided in the law. 
 
 It can scarcely be doubted that when an injunction is gone by 
 the dismissal of the complaint, and an appeal has been duly taken 
 and perfected under section 334, a stay of proceedings in the 
 court could be effected so as to prevent the collection of costs, 
 or any proceedings to ascertain the damages sustained by reason 
 of the injunction. Section 342 appears to cover such a case fully. 
 
 But when the defendant does not need the exercise of any 
 powers of the court for further consequential relief, but is libera- 
 ted from a restriction upon performing an act, there must be 
 either a fresh interposition of the court, or the appeal must revive 
 the injunction, or there is no redress. The revival of the injunc- 
 tion seems entirely out of the question. 
 
 The cases of Clark vs. Clark (7 Paige, 607) and Burr vs. 
 Burr (10 ibid. 166) are examples of the exercise of a power by 
 
Miscellaneous.] Htjunction. .373 
 
 the court to stay proceedings where an appeal, though perfected 
 under the Eevised Statutes, could not operate to prevent an act 
 done by the sheriff (as, to sell under execution). It was not a 
 proceeding in the court. Justice Harris thought, it is presumed, 
 there was such a power, when he impliedly granted the permis- 
 sion to make a motion in Hoyt vs. Carter {ut sujyrd). See, also, 
 Burrall vs. Vanderbilt (1 Bosworth, 637), and Cook vs. Dickerson 
 (1 Duer, 679), as to what proceedings an appeal stays under the 
 Code by analogy to the Revised Statutes. 
 
 In the case of Genin vs. Chesney (Special Term, Superior 
 Court, Jan. 1861), an injunction was allowed to prevent the de- 
 fendant from continuing the use of a sign or device over his eating 
 saloon, next door to that of the plaintiff, which had been used by 
 the plaintiff and his predecessors for over seventeen years, in the 
 same place. An appeal was taken from this order to the Gene- 
 ral Term, and an application was then made to stay the enforce- 
 ment oftheinjunction-oi-der pending the appeal. Mr. Justice Hoff- 
 man held that an appeal from an order did not of itself stay pro- 
 ceedings ; that the court could stay, upon proper terms, the execu- 
 tion of the order, as well as any other ; and that, upon the defend- 
 ant's executing a bond with one surety, in a certain sum, as liqui- 
 dated damages, and not by way of a penalty, payable in case the 
 order was affirmed by the General Term or the appeal dismissed, 
 the proceedings might be stayed. 
 
 The damages which might arise from persons being misled 
 into going into the defendant's saloon must necessarily be very 
 vague and indefinite. ISTothing but liquidated damages would 
 ensure justice to the plaintiff if the order was sustained. 
 
 7. Effect of an abatement. — The practice was settled before 
 the Code, that the death of a co-defendant in an injunction suit did 
 not cause the process to fall, but a surviving defendant might 
 obtain an order, on notice, that the complainant revive the suit 
 within a reasonable time, or consent to proceed against the sur- 
 viving defendant alone, or that the injunction be dissolved.' 
 
 In Bennett vs. James, in Chancery, July, 1833," the Chancel- 
 lor said an abatement did not dissolve or in any way affect an 
 
 ■ Hoffman's Ch. Pr. vol. 1, p. 392, and cases. 
 
 ' Cited ibid. ; reported as Hawley m. Beanett, 4 Paige, 163. 
 
374 iNJUNCTioisr. [Misoellcmeous. 
 
 injunction. That if the plaintiff had died, and the injunction 
 was violated, an application for an attachment might be made by 
 the representatives of the plaintiff, as soon as they had taken 
 steps by petition or bill to revive. They need not wait until a 
 decree of revivor. The representatives of a deceased defendant 
 might have made a similar motion, notwithstanding their power 
 to revive themselves under the Eevised Statutes. See Stuart vs. 
 Ancell (1 Cox's Ca. 411), and Hoffman's Ch. Pr., vol. 1, p. 392. 
 
 Upon the death of a plaintiff, any defendant might obtain an 
 order that his representatives revive within a specified time, or 
 that the injunction be dissolved. 
 
 In The Duke of Chandos vs. Talbot (Select Cases in Ch. 24), 
 it was declared that in an injunction case, where it abates by the 
 death of either the plaintiff or defendant, the rule is, that the 
 court shall be moved to revive within a stated time, or the injunc- 
 tion be dissolved. 
 
 In More vs. Thayer (10 Barbour's Eep. 258), it was held 
 that, as a general rule, a suit was not commenced, where service 
 of the summons is by publication, until the expiration of the time 
 prescribed for publication. Yet where an attachment had issued 
 against the property of the defendant, after which he dies, .the 
 court acquired a jurisdiction to enable it to substitute the personal 
 representatives of the deceased in his place, as a party defendant, 
 in order that the summons may be duly served, and the lien of 
 the attachment be retained. 
 
 By section 121 of the Code, no action shall abate by the 
 death, marriage, or other disability of a party, or by the transfer 
 of any interest therein, if th'e cause of action survive or continue. 
 In case of death, marriage, or other disability of a party, the 
 court, on motion, at any time within one year thereafter, or after- 
 wards on a supplemental complaint, may allow the action to be 
 continued by or against his representative or successor in interest. 
 
 See, upon the practice under this section. Keen vs. Lafarge (1 
 Bosworth, 671) ; Doedt vs. Wiswall (15 Howard, 128) ; Yertore 
 vs. Wiswall (16 Howard, 8) ; "Williamson vs. More (5 Sandf. Supr. 
 Ct. Eep. 647) ; Taylor vs. Church (9 Howard, 190). 
 
 8. Effect of a lis pendens. — "When the action relates to real 
 property, and a notice of a lis pendens is filed, dispositions of 
 property so as to affect the plaintiff's rights, should he succeed. 
 
Miscellaneous.] injtjnctioit. 375 
 
 are of course unavailing. And generally, therefore, an injunction 
 to restrain such dispositions, being needless, will not be allowed. 
 
 In Mills vs. Mills (21 Howard's Pr. Eep. 437), Mr. Justice 
 Lott considered the plaintiff's right to ultimate relief as too 
 doubtful, upon the matters stated, to justify a preliminary injunc- 
 tion. He also observed that he was fully protected by his pos- 
 session, and by the filing of a notice of lis pendens against any 
 alienation or disposition of the property. An injunction was, 
 therefore, unnecessary. 
 
 In Stephenson vs. Zayerweather (ibid. 449), the same learned 
 judge repeated this proposition, especially as the defendant was 
 amply responsible to meet any claim for loss or damage arising 
 out of the subject-matter of the action. 
 
 9. Renewing an injunction on new matter. — A motion to rein- 
 state an injunction on additional facts is, in effect, an original 
 application for an injunction. It will be granted in some special 
 cases. 
 
 If the injunction has been dissolved upon the merits, and then 
 the plaintiff amends, a fresh injunction may be awarded, on no- 
 tice. 
 
 In Travers vs. Lord Stafford (2 Vesey, Sen., 19) Lord Hard- 
 wicke said : " If once an injunction is dissolved on the merits, on 
 answer put in — whether by decree of court on dismissing the bill 
 or on motion on coming in of the answer — if the complainant 
 amends that bill, or files a supplemental bill, with new matter 
 which is part of the old cause, he cannot apply as of course for a 
 new injunction to stay proceedings, though, perhaps, it may be 
 done on special motion." 
 
 In Vipan vs. Mortlock (2 Merivale, 476)the common injunc- 
 tion was dissolved, on coming in of the answer. The bill was 
 subsequently amended, and the injunction revived upon special 
 application, supported by afl[idavit of the facts stated by way of 
 amendment. The defendant was in default for not answering the 
 amended bill. 
 
 In Lingham vs. Toule (1 Anstruther, 188), after injunction 
 dissolved upon the answer, and the bill amended, it was held that 
 a new injunction could not be granted, except upon special ap- 
 plication, supported by affidavits. 
 
 The subject was examined in Buckley vs. Case (Saxton's Ch, 
 
376 , iNJUKOTioN. \_Miscellomeous. 
 
 Eep. 504). It was held to be clear that, after an injunction dis- 
 solved on the merits, the party may amend, and obtain an in- 
 junction on the amended bill. The amendments may be founded 
 on facts disclosed in the answer. There must always be new 
 facts and charges in the amended bill, and these must be material, 
 or a new injunction would not be ordered. 
 
 It was not essential that notice of the application should be 
 given. The case as presented by the amended bill was sufficient 
 to sustain the injunction, which had been granted ex-parte. 
 
 In Tone vs. Bruce (1 Clark's Eep. 505) Yice-Chancellor Whit- 
 tesley held that the court had power to renew an injunction after 
 a dissolution, although the order had been affirmed by the Chan- 
 cellor, and an appeal taken to the Court of Errors from that 
 affirmance ; that the power could only be exercised upon new 
 facts presented by petition or supplemental bill. He had ad- 
 verted to the same question in Jewett vs. The Albany City Bank 
 (ibid. p. 69), and, holding that the power existed, considered that 
 the ease must be very special for its exercise. There must be new 
 facts, or facts unknown at the first motion. 
 
 In Fanning vs. Dunham (4 Johns. Eep. 35) an injunction had 
 been dissolved, and a supplemental bill was allowed to be filed. 
 On the facts stated in this, a fresh injunction was granted. 
 
 10. Mandatory injunctions. — ^It has been supposed that an in- 
 junction could only command the party to refrain from doing an 
 act, but could not order him directly or indirectly to perform an 
 act. This is, however, erroneous. "What is known as a mandatory 
 injunction is not uncommon. 
 
 In Eankin vs. Huskisson (4 Simons, 13) the injunction, as al- 
 lowed by the court, forbade the defendant from permitting the 
 supports of the building, which had already been erected on the 
 garden or plot of ground, from remaining thereon, &c. 
 
 So, in Spencer vs. Birmingham and London R. E. Co. (8 
 Simons, 193), the court say : " The power of the court to grant 
 that species of injunction which Lord Eldon granted — namely, 
 restraining a party from allowing a thing to continue, and which 
 has the effect of making him take some active measures — has been 
 recognized and acted upon ; and I do not see why, if that species 
 of negative injunction has been adopted, it should not be adopted 
 here, so far as to prevent the parties from continuing the excava- 
 tion in its present state." 
 
Miscellaneous.] injunction. , 377 
 
 In Lord Mexborough vs. Bower (7 Beavan, 127) an injunction 
 was granted to restrain the defendant (who had cut certain chan- 
 nels from one coal-field into another, in violation of an agreement 
 with the plaintiff) from permitting the communication to con- 
 tinue open. 
 
 In The Great North of England, &c., Co. vs. The Clarence 
 Kailway Co. (1 CoUyer's Ch. Rep. 507) the right of the plaintiffs 
 to construct a bridge over the defendants' railway, and to use the 
 defendants' land temporarily under certain conditions for that 
 purpose, was the question in dispute. Upon a trial at law, the 
 Court of Exchequer certified to the legal right of the plaintiffs 
 in both particulars. The defendants had put up a wall which 
 obstructed the plaintiffs in carrying out their works. An injunc- 
 tion was granted by Yice-Chancellor Bruce, and supported by 
 the Lord Chancellor, to restrain the defendants from contin- 
 uing to maintain such wall, and from preventing the plaintiffs 
 from making their bridge, &c. In effect, the injunction was to 
 compel the defendants to remove their wall. It was held that it 
 was no objection to the injunction that it was, in effect, of a man- 
 datory character. 
 
 The statute of 17 and 18 Yictoria, cap. 125, §§ 79-82, was be- 
 fore noticed, as conferring upon the courts of common law the 
 power to grant injunctions. 
 
 In Jessel vs. Chaplin (37 En. L. & Eq. Eep. 472) the injunction, 
 which was made absolute, contained a clause against erecting, 
 keeping erected, and continuing the erection, of so much of the 
 wall and building as is opposite to the west side of the messuage 
 of the plaintiff, &c. 
 
 In Howe vs. Searing (Superior Court, 1860) part of the in- 
 junction adjudged at the hearing was, that the defendant should 
 not continue to use the name of " Howe's Bakery" on any sign 
 or wagon, and should remove' a large sign with that name, from 
 a part of the building. The case is reported in 19 Howard's Pr. 
 Eep. 14 ; but this part of the order does not there appear. Jus- 
 tice Hoffman, who pronounced the order, held that the power to 
 forbid the continuance of a thing, and to punish a party for con- 
 tinuing it, was the same thing as a power to command its remo- 
 val ; and that it was best to make the language express directly 
 what was actually commanded. 
 
378 INJUNCTION. [^Miscellaneous. 
 
 The cases before Lord Brougham, of Blakemore vs. The Gla- 
 morganshire Caual Company (1 Mylne & Keen, 154) and Milli- 
 gan vs. Mitchell (1 Mylne & Keen, 446), only show that on in- 
 terlocutory applications the court, except in some very special 
 cases, aims only at keeping things in statu quo, 3.nd will not 
 grant an order which indirectly compels some positive act to be 
 done. 
 
 11. Breach of an injunction, and its consequences. — The 
 proceedings in the case of Davis vs. The Mayor of New York, 
 and The People vs. Compton, Sturtevant, &c. (See 1 Duer, 451 ; 
 ibid. 612 ; 3 Duer, 616 ; 4 Duer, 148 ; 5 Selden, 263), involve 
 the principal questions of practice on this head. Each step was 
 contested by counsel, and received attentive examination in the 
 Superior Court. The statement of the practice there pursued, 
 with a few other points and authorities, will furnish a sufficient 
 guide. 
 
 It should be premised, that the Code has left the provisions 
 of the Eevised Statutes as to contempts unaffected. 
 
 The injunction order (1 Duer, 468) recited, that it appeared 
 from the complaint, duly verified, that the plaintiff was entitled 
 to the relief demanded, and that such relief consisted in restrain- 
 ing the defendants as thereafter provided. Therefore, the Mayor, 
 Aldermen, &c., their agents, &c., were enjoined from granting to 
 Sharpe and others the liberty or right of laying a railroad in 
 Broadway, &c., until the further order of the court. 
 
 An affidavit was made of service of a copy of the injunction 
 on the several members of the corporation named ; of the adop- 
 tion and passage of the grant, the subject of the injunction; and 
 of the adoption of certain resolutions to disregard the injunction, 
 and reflecting upon the judge who issued it. 
 
 Notice of a motion was given for an attachment to issue. 
 The affidavits served were made in- the cause. 
 
 It may be observed that it has become the very general prac- 
 tice to make an order to show cause why an attachment should 
 not issue in these cases. Notice of a motion for an attachment, 
 with copies of the affidavits served, is undoubtedly also correct. 
 (Matter of Smethurst, 2 Sandf. Supr. Ct. Eep. 724 ; Bennett vs. 
 James, in Chancery, cited 1 Hoffman's Ch. Pr. 434, n. 2 ; McCre- 
 die vs. Senior, 4 Paige, 381.) 
 
Miscellaneous.] mjuNCTioiir. 379 
 
 The fifth section of the statute (2 E. S. 535) is, that the 
 court shall either grant an order for the party to show cause 
 why he should not be punished for the alleged misconduct, or 
 shall issue an attachment to arrest the party and to bring him 
 before such court to answer for such misconduct. Hence 
 the defendant may be brought into court by an attachment 
 in the first instance ; and in Young vs. Garish (Special Term 
 Superior Court, May, 1854), this was the course pursued. Eut 
 the almost universal course is to grant an order to show cause or 
 give a notice. 
 
 In Watson vs. Fitzsimmons (5 Duer, 629) Chief Justice Bos- 
 worth adverted to the clause as to showing cause why the party 
 should not be punished for the alleged misconduct, and that the 
 statute had pointed no, distinct mode of proceeding under it. The 
 course was therefore such as conformed to the general practice of 
 the court on an order to show cause why relief should not be 
 granted. Section 271 of the Code, subd. 3, authorized a refer- 
 ence in such a case. 
 
 Upon hearing the motion in Davis vs. The Mayor, &c., the 
 court disposed of and overruled various objections taken against 
 it ; such as that the party proceeded against was not a party to 
 the suit, and because no copy of the affidavit on which the in- 
 junction was obtained had been served with the order. 
 
 It was held that the party could not set up, as a defence for 
 disobeying the injunction, that the plaintiff had made no case upon 
 his complaint or papers on which an injunction could be sus- 
 tained. His remedy was to move for a dissolution. The People 
 m. Spalding (2 Paige, 329), Sullivan vs. Judah (4 Paige, 446), 
 and Russell vs. The East Anglican Eailway Company (1 En. L. 
 & Eq. Rep. 101), were cited. A manifest invalidity on the face 
 of the order itself could alone warrant a disobedience. 
 
 The conclusion, after examining the various points raised, was, 
 that the order of injunction was a valid exercise of the estab- 
 lished jurisdiction of the court, and, the fact of disobedience 
 being made out, that the attachment should be granted. 
 
 On the return of the attachment, the parties appeared, and 
 interrogatories were filed on the part of the relators ; which the 
 parties were allowed time to answer, and were recognized to ap- 
 pear again at a future day. 
 
380 INJUNCTION. . [Misoellaneous. 
 
 Attaeliments in inj unction cases are, by force of the statute, 
 bailable. In Ferris vs. L'Amoreux, in Chancery, June 18, 1830, 
 it was ordered in five hundred dollars. 
 
 When the party has given bail, the order to file interrogatories, 
 and giving time, usually contains a clause continuing the bond 
 over. This, the Chancellor held, was not essential, where the 
 bond was, as usual, that the party appear and abide by the order 
 of the Court in the premises. The bond then remained in force, 
 as of course. 
 
 At this stage of proceedings for a contempt, the title is 
 changed. The interrogatories and all subsequent proceedings are 
 
 entitled " The People on the relation of ," the party applying. 
 
 (Stafford vs. Munn 4 Paige, 360.) If the party proceeded against 
 has not been bailed, the sheriff who brings him up must detain 
 him until some order is made in the premises (2 E. S. 536 ; Lov- 
 ett vs. Kogers, 2 Paige, 103), or he may then be bailed. (In the 
 matter of Yanderbilt, 4 John. Ch. Eep. 57 ; Cary's Eeports, 100) ; 
 Hawkins' Pleas of the Crown, 141. See Perris vs. L'Amoreux, 
 cited 1 Hoffman's Ch. Pr. 435, note.) 
 
 In The People vs. Compton {ut supra) on the day appointed 
 the parties appeared, and answers were put in to many of the 
 interrogatories, and exceptions taken to some others, and a motion 
 was made that those interrogatories be expunged. They involved 
 the question whether any punishment could be inflicted beyond 
 what was necessary to afford redress to the aggrieved party. It 
 was held that the court could punish disobedience to an order as a 
 criminal contempt by fine and imprisonment. The provisions of 
 the Eevised Statutes were unrepealed, and governed the case. 
 That was irrespective of any injury done to the party. A fine 
 might be imposed of not over $250, and punishment by imprison- 
 ment added for not over six months, when the disobedience is 
 shown, to have been willful. 
 
 The exceptions being disposed of, the court decided that the 
 interrogatories should be immediately answered. Answers were 
 read, and the question was ai-gued, what should be the nature 
 and extent of the punishment. The following was the final order : 
 
 " At, &c. ; present, &c. The People of the State of New York, 
 on the relation of Thomas E. Davis and Cortlandt Palmer, vs. 0. 
 W. Sturtevant. A writ of attachment having heretofore issued 
 
Miscellaneous.'] injunction. 381 
 
 out of and under the seal of this court, directed to the sheriff, 
 &c., against the above-named O. "W. Sturtevant, for contempt in 
 disobeying an injunction granted in the action, pending in this 
 court, of Thomas E. Davis, &c., as plaintiffs, and the Mayor, &c., 
 as defendants ; and the said Sturtevant having been, by virtue of 
 said attachment, attached by said sheriff, and having personally 
 appeared in court ; and interrogatories 'specifying the facts and 
 circumstances having, by order of the court, been filed, and a 
 copy thereof served on said Sturtevant ; and he having been re- 
 quired .to answer, and having answered the same ; and several 
 affidavits and papers touching said contempt having been pro- 
 duced and read ; and counsel as well for the said relators as for 
 the said 0. "W. S. having been heard : 
 
 " It is now here considered and adjudged that the said 0. "W. 
 S. has been and is guilty of the misconduct alleged against him in 
 the proceedings, and that such misconduct was calculated to, and 
 actually did, defeat, impair, impede, and prejudice the rights and 
 remedies of the said plaintiffs, T. E. D. and C. P., in their said 
 action against The Mayor, &c. ; and that the said T. E. D. and 
 C. P. have, by reason of the said misconduct, been put to a large 
 amount of costs and expenses, to wit, the sum of $122 20.' 
 
 " And it is further considered and adjudged that the said 
 0. "W. S., for his said misconduct, be imprisoned in the com- 
 mon jail of the city and county of New York for the period 
 of fifteen days ; and further, that a fine of $352 20 be, and the 
 same is hereby, imposed upon the O. W. S. for his said miscon- 
 duct, and that he' stand committed to the common jail of the city 
 and county of New York until the said fine be paid. 
 
 " And it is further considered that the sum of $102 20, part of 
 said fine, be paid over to the said Davis and Palmer, or their attor- 
 neys, to satisfy their said costs and expenses in the premises, and 
 that the residue of such fine be paid to the clerk of this court, to 
 be disposed of according to law, and that a warrant issue to carry 
 this judgment into effect." 
 
 Affidavit.— By the 3d section of the act (2 E. S. 537) the court 
 is to be satisfied by due proof, by affidavit, of the facts charged, 
 
 ' A reference had been previously ordered to ascertain tlie costs and expenses. 
 The above sum was the proportion of each party. 
 
382 * INJUNCTION. {^Miscellaneous. 
 
 and shall cause a copy of such affidavits to be served on the par- 
 ty accused, a reasonable time, to enable him to make his defence. 
 
 Bail. — By the 10th section of the statute above referred to, 
 when the attachment is issued by the special order of the court, 
 such court shall direct the penalty in which the defendant shall 
 give bond for his appearance to answer. 
 
 And by the 11th section, in all other cases where a party shall 
 be entitled to an attachment without the special order of the 
 court, he shall make application to a judge of the court, who, 
 upon due proof of the facts and circumstances, shall direct the 
 penalty in which the defendant shall give bond for his appear- 
 ance to answer to the matters alleged against him, and shall 
 indorse such order on the attachment. See, also, sections 12, 13, 
 14, and 15. 
 
 Interrogatories. — By the 19th section of the statute (2 R. S. 
 537) when any defendant arrested upon an attachment shall have 
 been brought into court, or shall have appeared therein, the court 
 shall cause interrogatories to be filed, specifying the facts %nd cir- 
 cumstances alleged against the defendant, and requiring his answer 
 thereto, to which the defendant shall make written answers, on 
 oath, within such reasonable time as the court shall allow. 
 
 By an order of Lord Clarendon, where the contempt is for 
 the breach of an order, or otherwise, founded on affidavit, the 
 interrogatories shall not be extended to any further matter than 
 what is comprehended in such affidavit or order; and if any 
 other are exhibited, the party examined may demur to them. 
 
 In Livingston m. Bryant, before the Chancellor, June 20, 
 1832 (cited 3 Hoffman's Ch. Pr., p. IIY), the first interrogatory 
 inquired whether the party had not received a copy of the injunc- 
 tion, issued in the cause of, &c., and when and whether the paper 
 then shown was not a copy thereof. The other questions were 
 directed to the violations complained of. 
 
 Li Young vs. Garish (Special Term Superior Court, May 26, 
 1854), Justice Hoffman observed that the interrogatories should 
 not extend to what could not be controverted by the party. 
 Hence, in that instance, those which related to the validity of 
 the judgment and execution were stricken out. See, also. Brown 
 vs. Andrews (1 Barb. Sup. Ct. Eep. 228) ; Albany City Bank vs. 
 Schermerhorn (9 Paige, 372). 
 
Miscellaneous.] mjuNOTioN. 383 
 
 Proofs. — By the 19th section of the statute (2 E. S. 53T) it is 
 also provided that the court may receive any affidavits or other 
 proofs contradictory of the answer of the defendants, or in con- 
 firmation thereof ; and upon the original affidavits, such answers, 
 and such subseqiient proofs, shall determine whether the defend- 
 ant has been guilty of the conduct alleged. 
 
 It was a not uncommon practice in the Court of Chancery to 
 make an order of reference to take proofs ; and this was some- 
 times made to examine the party upon interrogatories, and take 
 such proof as should be produced. (See 1 Hoffman's Ch. Pr. 
 436, 439, and cases.) By Lord Clarendon's order (Beames' Or- 
 ders, p. 202), it was directed that where a party prosecuted upon 
 a contempt hath denied it, or the same doth not clearly appear by 
 his examinations, the prosecutor may take out a commission of 
 course to prove the contempt. 
 
 In Gumming vs. Wagoner (7 Paige Hep. 602), on an attach- 
 ment returned, a reference was made to a master to examine the 
 defendant on interrogatories, and to take such other proof con- 
 cerning the alleged contempt, as should be produced by either 
 party, and to report such answers and proofs to the court. The 
 Chancellor adverted to Stagg vs. Cutwater (cited 1 Hoffman's 
 Practice, N"ov. 1834), and observed that a general order to take 
 proofs would not allow the master to receive affidavits ; though 
 special circumstances might induce the court to authorize it by 
 an express provision in the order. It was, under the statute, 
 matter of discretion with the court to receive affidavits in con- 
 firmation of the answers or to contradict the same. 
 
 In The Mayor, &c.,vs. Conover (5 Abbotts' Eep. 244), a refer- 
 ence was ordfered to take proof of the facts constituting the al- 
 leged contempt. It does not appear if interrogatories had been 
 first filed and answered. 
 
 In Watson vs. Fitzsimmons (5 Duer, 629), an order was ob- 
 tained to show cause why a party should not be punished for his 
 ^ alleged misconduct, for disposing of his property after an injunc- 
 tion-order served. On the return of the order, he denied the 
 contempt, and an order of reference was made to examine the 
 defendant and other v^tnesses, and take testimony and report the 
 same, and whether the defendant was guilty of the contempt. 
 
 On the report coming in, Justice Bosworth observed, " that 
 
384 rajuNCTioN. [Misoellcmeous. 
 
 the Eevised Statutes prescribed two modes of proceeding : one an 
 order to show canse why the defendant should not be punished 
 for an alleged contempt ; the other, an attachment to arrest such 
 party, and bring him before the court to answer for the alleged 
 contempt. The statute was silent, when the first mode was 
 adopted, as to the course thereafter to be pursued, whether the de- 
 fendant appears or fails to appear. It may, therefore, be such as 
 conforms to the general practice of the court on any order to show 
 cause why relief should not be granted. 
 
 " "Written interrogatories and answers on oath were properly 
 resorted to, though the statute does not in terms require it. (2 
 Sandf. S. Ct. Kep. T27.) Sect. 271 of the Code, subd. 3, author- 
 ized a reference in such a case." 
 
 Judgment of misconduct.— The final order, imposing the fine 
 or imprisonment, must, under section 20, adjudge the defendant 
 guilty of the misconduct alleged, and that such misconduct was 
 calculated to, or actually did, defeat, impair, impede, or prejudice 
 the rights or remedies of the party. 
 
 In McCredie vs. Senior {i Paige, 378) it was stated not to be 
 the practice of the court, upon an application for an attachment, 
 to make a final adjudication as to the guilt of the accused. The 
 order should direct the issuing of the attachment, without any 
 other adjudication, or should merely declai-e that it appears to 
 the court that there is probable cause for issuing an attachment. 
 
 See the form of the adjudication in the order in The People 
 vs. Sturtevant, &c., ante, p. 380. 
 
 The 21st section of the act provides that, if an actual loss or 
 injury shall have been produced to any party by the misconduct 
 alleged, a fine shall be imposed sufficient to indemnify such party, 
 and to satisfy his costs and expenses, which shall be paid over to 
 him on the order of the court. The payment and acceptance of 
 such fine shall be an absolute bar to any action by such aggrieved 
 party to recover damages for such injury or loss. 
 
 In Davis vs. Sturtevant (4 Duer, 148) an action was brought 
 on a bond given under the 29th section. It was held that reason- 
 able counsel fees might be allowed, as part of the costs and ex- 
 penses ; but the acceptance of the fine which had been imposed 
 was a bar to any further recovery. 
 
 There are other provisions of the statute as to contempts, but 
 
Miscellaneous.'] mjuNCTioN. 385 
 
 none so material in relation to breaches of injunctions as those 
 adverted to. They will be found, with the authorities, in the 
 Books of Practice. See Hoffman's Ch. Pr., vol. 1, p. 435, et seq., 
 and Appendix, vol. 3, pp. 120-122, and especially the proceed- 
 ings in Lovett vs. Eogers ; also, Orary's Law and Practice in 
 Special Proceedings, 375, et seq. 
 
 Although the fact that an injunction ought not to have been 
 allowed is no answer to an attachment for its violation, yet it may 
 be considered in fixing the punishment.' 
 
 ' Sullivan vs. Judah (4 Paige, 444) ; Field vs. Hunt (22 Howard's Pr. Rep. 338). 
 25 
 
CHAPTER IV. 
 
 ATTACHMENT. 
 
 Introductory. — The theory of an attachment or seizure of the 
 property of an alleged debtor, and an interference with his abso- 
 lute control and possession, during proceedings to establish a de- 
 mand, seems repugnant to the doctrines of the common law, and 
 an embarrassment to the freedom of commercial transactions. 
 Yet it grew into a custom in the most commercial city of the 
 world, and has obtained a place in the juridical system of the 
 most mercantile communities of the United States. It is found 
 also in foreign codes. (Story's Conflict of Laws, § 549.) 
 
 The custom of London is thus defined: "If a plaint be af- 
 firmed in London before, &c., against any person, and if it be 
 returned nihil, if the plaintiif will surmise that another person 
 within the city, is a debtor to the defendant in any sum, he shall 
 have garnishment {warning) against him to warn him to come in 
 and answer whether he is in debt in the manner alleged by the 
 other ; and. if h6 comes and does not deny the debt, it shall be 
 attached in his hands ; and after four defaults recorded on the 
 part of the defendant, such person shall find new surety to the 
 plaintiif for the said debt ; and judgment shall be, that the plain- 
 tifi" have judgment against him, and that he shall be quit against 
 the other, after execution sued out by the plaintiff." (1 Eolle's 
 Abrid. Customs of London, K. 1, 3, and the other authorities cited 
 in Locke on Attachments, p. 2, n. ; Law Library, Vol. 63. The 
 above was certified by Starkey, Kecorder of London.) 
 
 This custom of London, recognized in the reign of William 
 the Conqueror, is traced to a much remoter antiquity. (Bohun's 
 Privilegia Londini.) 
 
 In the case of the Hamborough Comp. (28 Car. 2 Yiner's 
 Abrid., vol. 7, p. 226, pi. 16), debt was brought against the Ham- 
 borough Comj)any, and they not appearing upon a summons and 
 
Introductory.] attachment. 38Y 
 
 nihil returned, an attachment was granted, of debts owing to the 
 company in the hands of fourteen several persons. The court 
 said : "We cannot judge of the customs of London; nor do we 
 take upon ourselves to determine whether a debt owing to a cor- 
 poration be within the custom of foreign attachment or not. 
 This we judge and agree in, that it is not unreasonable that a cor- 
 poration's debt should be attached. If we had judged the custom 
 unreasonable, we could and would have retained the cause ; for 
 we^ can overrule a custom, though it be one of the customs of Lon- 
 don that are confirmed by act of Parliament, if it be against 
 natural reason ; but because in this custom we find no such thing, 
 we will return the cause. Let them proceed according to the cus- 
 tom at their peril." 
 
 In the case of Thayer vs. Willett (Superior Court E". Y., Octo- 
 ber, 1859), Mr. JSToyes referred to the customs of "West-Yarmouth, 
 contained in Bloomfield's History of Norfolk, vol. 11, p. 332. 
 
 The article as to attachments deserves notice. The custom 
 was ancient in the time of Edward I. 
 
 " Of certain usages and customs of the burgh of Yarmouth, 
 observed and kept by the burgesses time immemorial. 
 
 " Of the declaration, condemnation, appraisement, disposal, 
 etc., of goods attached. 
 
 " The ancient custom of this burgh is, and always hath been, 
 that upon all manner of actions brought within the burgh, attach- 
 ment shall be made of all manner of goods and chattels, upon 
 pleas of debt, detinue, covenant broken, trespass upon the case, 
 and all other pleas determinable at the common law, at the suit 
 of all manner of plaintiffs, which shall require the same. 
 
 " And this attachment shall be made of all such goods and 
 chattels whereof the possession may be lawfully taken and ob- 
 tained within the burgh, or within the liberties of the same, in 
 this form following, that is to say — [the officers and mode is 
 pointed out] ; and that, after attachment made of any manner of 
 goods and chattels as is aforesaid, the same shall remain under 
 the attachment, in the custody and safe keeping of the officers 
 who shall so make the said attachment ; which officer then, at the 
 next court following, upon entering of the action or actions, shall 
 present and give in an inventory of all and singular the said goods 
 and chattels into the court, before the bailiffs, there to remain of 
 
388 ATTACHMENT. [Intvod/uctovy. 
 
 record ; to the intent that every part and parcel of the said goods 
 may be forthcoming, to satisfy the debt and damages which shall 
 be adjudged by the court, in every such action brought by the 
 said attachment, or else, the plaintiff having no good cause of ac- 
 tion, that upon trial thereof, the owners may be restored again to 
 the possession of their said goods and chattels, whereupon said 
 attachments were made." 
 
 "And whereas, divers times, many goods and chattels being 
 attached, are supposed to be the goods and chattels of others, and 
 not of those parties upon whose names the actions are entered in 
 the court as defendants — ^in those cases, the party or parties which 
 claimeth to have property to those goods and chattels, to defeat 
 the attachment made, and the actions and recoveries had by force 
 thereof, if he be present in the court, shall there, in open court, 
 before the bailiffs, be sworn that the property which he or they 
 so claim in and to the said goods attached, is only upon good 
 cause and consideration, without fraud, covin, or deceit." 
 
 The claimant was then to put in his plea into the court, that 
 the goods did belong to him. Upon which plea, if the party at- 
 taching joined issue, a jury was to be then returned and impan- 
 eled, " upon their oaths, to inquire and try the property aforesaid, 
 according to the proofs on either part. And if it be found by the 
 verdict of the said jury, that the property of the said goods, at 
 the time of the attachment made, was in him or them so claiming 
 the same, according to his or their plea, put into the court, then 
 those goods and chattels shall be released of those attachments, 
 and re-delivered up to him or them, that be so found to be the 
 right owners thereof." "And if it be found by the verdict of the 
 said jury, that the property of the said goods and chattels at- 
 tached, at the time of the attachment made, was in him or them, 
 supposed to be defendants in the action or actions brought and 
 entered upon the said attachments — and not in him or them so 
 making claim thereto — that then those goods and chattels so at- 
 tached, shall remain liable for the satisfaction of the debt and 
 damages of the plaintiff which caused the said attachment to be 
 made." 
 
 "Also, by the custom of this burgh, all attachments of goods 
 and chattels whatsoever, by virtue of any action made as afore- 
 said, shall, upon recognizance of two freemen of this burgh, ac- 
 
Int/roduotory.] attachment. 389 
 
 knowledged before the bailiffs, or one of them, to become sureties 
 and pledges to those actions presently before the fourth default, 
 entered against those goods, be released and discharged ; and the 
 said pledges shall be recorded in court, to be answerable to the 
 said attachments, whereupon the said actions were made ; but after 
 the fourth default entered, no sureties shall be received." 
 
 A branch of the committee of the House of Commons, upon 
 municipal corporations, appointed in 1834, reported upon the sub- 
 ject of foreign attachments, as follows : 
 
 "A difference of opinion prevails among mercantile men with 
 respect to the utility of this proceeding. On the one side, it is 
 said to be important in a commercial community, to apply the 
 property of an absent debtor, wheresoever it may be found, to the 
 payment of his creditor ; and this, it is contended, is particularly 
 advantageous in a city much frequented by foreigners for the pur- 
 poses of trade, who may contract debts during their abode in En- 
 gland, and then remove themselves to foreign parts, beyond the 
 reach of personal process. 
 
 " On the other hand, it is supposed to embarrass commercial 
 operations, in consequence of the unusual power which it places 
 in the hands of creditors, by enabling them suddenly to lay an 
 embargo on the goods of their debtors, which cannot be applied ' 
 in discharge of any commercial engagements with third persons, 
 until the attachment is removed." 
 
 The committee proceed to discuss these objections and views, 
 and conclude : " The alleged objections do not therefore appear to 
 be so formidable as has been represented ; but the advantage of a 
 speedy and safe mode of recovering debts is obvious." (Cited 
 Locke on Attachments, p. 20.) 
 
 Among the customs of Paris," we find the following in the 
 definition of Seisin : 
 
 " It is taken also for the seizure of effects in the hands of a 
 third party belonging or due to the debtor of him who makes the 
 seizure, and the seizure in this case is termed arrest ; because it 
 only arrests what is due to the debtor, until such time as the 
 party seizing shall have* obtained by. sentence, that the effects 
 shall be put in his hands for, and as a deduction from, what his 
 
 ' Edition 1110, Paris. 
 
390 ATTACHMENT. {Ini/roductory . 
 
 debtor owes him; so that, in this case, seizure and arrest are 
 synonymous." 
 
 The derivation of the word, according to Ch. J. Hosmer, is 
 remotely from the Latin word attinger, and more immediately 
 from the French " attacker "/ and signifies, to take or touch, and 
 was adopted as a precise expression of the thing : nayn qui nom- 
 ina intelKgit, res etiam intelUgit.' 
 
 The system was adopted in our State at least as early as 1786. 
 By an act of April 4, 1786,'' provision was made, not only for the 
 case of a debtor secretly departing from the State, or keeping con- 
 cealed within the same, but by the 21st section it was enacted as 
 follows : " And whereas persons who dwell out of this State may • 
 be indebted within the same, and have estate or effects within the 
 same sufficient to satisfy such debts or parts thereof; therefore, 
 be it enacted, that the estate, goods, chattels, and effects, real and 
 personal, of all and every such person and persons (so indebted) 
 as do or may dwell or reside out of this State, shall also be liable 
 to be taken, seized, proceeded against, sold, conveyed, and dis- 
 posed of, for the payment and satisfaction of such of the said 
 debts aforesaid, as near as may be, in like manner as the estate 
 and effects of other debtors in and by this act are made subject 
 and liable to." 
 
 There was a provision that the proof of non-residence mast be 
 made to the satisfaction of the judge, by two witnesses. 
 
 By the act of 21st of March, 1801, similar provisions were 
 made, both as to absconding and non-resident debtors.' This act 
 is found in the Revision of 1813,' and continued in force, with 
 some additions and modifications, until the Eevision of 1830.' 
 The whole law was then embodied and amended. Various 
 amendments were introduced by subsequent statutes, and are to 
 be found in the fifth edition of the Statutes, vol. 3, p. 78, &c. ' 
 
 In all this legislation, the great principle is contained, that the 
 attachment was like proceedings in bankruptcy, sequestering and 
 applying the debtor's estate for the creditors at large, and for them 
 equally. 
 
 But the Code of New York, adopted in 1848, has provided a 
 
 ■ Hollister vs. Goodale, 8 Conn. Rep. 332. ' Greenleaf, vol. 1, p. 214. 
 
 = 1 Webster <fe Skinner, p. 236. * 2 R. L. 1S18, p. 157. ' 2 E. S. 1830, p.l. 
 
§ 227.] ATTACHMENT. 391 
 
 remedy for the sole benefit of a plaintiff in an action, a provis- 
 ional sequestration of property under certain circumstances, to 
 secure payment of the demand in question, if it should be estab- 
 lished by judgment. It is strictly analogous to the proceeding of 
 the custom of London. Its provisions are now to be stated. 
 
 Section S27. 
 
 Gases for cm AUachment. 
 
 ^^ Property of foreign corporations, and of non-resident, or 
 absconding, or concealed defendants, may he attached— 
 
 " (1) In an action for the recovery of [the] money (2) against a 
 corporation created by or under the law^s of any other State, gov- 
 ernment, or country, (3) or against a defendant who is not a resi- 
 dent of this State, or (4) against a defendant who has absconded 
 or concealed himself, or (5) whenever any person or corporalion 
 is about to remove any of his or its property from this State, or 
 (6) has assigned, disposed of, or secreted, or is about to assign, 
 dispose of, or secrete, any of his or its property with intent to de- 
 fraud creditors, as hereinafter mentioned — the plaintiif, at the time 
 of issuing the summons, or at any time afterwards, may have the 
 property of such defendant or corporation attached, in the man- 
 ner hereinafter prescribed, as a security for the satisfaction of 
 such judgment as the plaintiff may recover!" 
 
 This chapter respecting attachments was first enacted in the 
 Code of April 11, 1849. In that of 1848, there were four chap- 
 ters: Arrest and Bail, Claim and Delivery, Injunction, and other 
 Provisional Eemedies, the latter corresponding with the present 
 fifth chapter. 
 
 This 227th section, as passed in 1849, remained unchanged un- 
 til 1857. By the amendment which went into effect on the 7th 
 May of that year, additions were made, which are found in the 
 subdivisions above marked 5 and 6, and adding the words '' or 
 corporation," italicized, near the end of the section. 
 
 Remedy under Revised Statutes. — The Revised Statutes had 
 provided a remedy by attachment, but of a nature essentially dif- 
 
892 ATTACHMENT. [§ 227. 
 
 ferent in several particulars from this prescribed by the Code. 
 The writ was the commencement of an action against debtors 
 who could not be served. It was original process. It was issued 
 by a judge or officer specially empowered, not by a court. It 
 enured to the benefit of all who should come in as creditors by 
 petition.' 
 
 The attachment under the Code is not a process for the com- 
 mencement of an action. It is an order in an action for the ar- 
 rest of the debtor's property, in the nature of bail for the pay- 
 ment of such judgment as the plaintiff may obtain ; and it may 
 issue at the commencement of the action, or at any time after- 
 wards." 
 
 Justice Paige, in Furman vs. Walters (13 Howard's Pr. Rep. 
 360), notes the distinction. "The attachments under the Ee- 
 vised Statutes are special proceedings ; are the original process 
 by which suits are commenced. An attachment under the Code 
 is not original process, and by it a. suit is not commenced, nor 
 upon it alone can a judgment be obtained. It is a provisional 
 remedy adopted in a suit already commenced." 
 
 And Justice James, in Houghton vs. Ault (16 Howard, 79), 
 observes : " Under the Code an attachment is not a process for 
 the commencement of an action. It 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 recover. It may 
 issue at the commencement of the action, or at any time after- 
 wards. In these respects it is entirely unlike the attachment 
 provided by the Kevised Statutes, that being the commencement 
 of a proceeding instituted and conducted out of court, before an 
 officer who derived his power in the matter from the statutes." 
 
 The remedy by the Code has not abrogated the course of pro- 
 ceedings under the Revised Statutes, as to either foreign corpo- 
 rations, or absent, concealed, or absconding debtors.' 
 
 Party entitled to the warFant, — The Code, unlike the Revised 
 Statutes, has not defined who may sustain an attachment. As 
 this writ is an adjunct to an action, it may be safely stated, that 
 whoever can support that kind of action in which an attachment 
 
 1 2 R. S. 2, § 1, <fec. ' Houghton vs. Ault, 16 Howard, 79. 
 
 = Eenard vs. Hargoua, 2 Duer, 640. On appeal, S Kernan, 259. 
 
§ 227.] ATTACHMENT. 393 
 
 may issue, in the particular court in -which the action is brought, 
 against the defendant, can have this remedy in it. 
 
 Under the former statutes as embodied in the Eevision of 
 1830, and amended in 1845,' the plaintiflp, though a non-resident, 
 might 'obtain an attachment, if the demand, whether liquidated 
 or not, arose upon contract, or upon a judgment or decree ren- 
 dered within this State, or upon a judgment or decree rendered 
 elsewhere upon a contract made within the State." 
 
 The partial incapacity which thus attached to a non-resident 
 plaintiff to resort to this remedy under the statutes, does not exist 
 under the Code. A non-resident individual, or a foreign corpo- 
 ration, can have the remedy, whenever he or it can sue the de- 
 fendant. 
 
 And hence, in Eeady vs. Stewart (1 Code Eep., N. S. 297), it 
 was held at Special Term, in the First District, that a non-resi- 
 dent plaintiff may have the warrant against a non-resident de- 
 fendant, although the cause of action arose elsewhere. Although 
 the judgment founded on a publication might be inoperative as to 
 the person of the defendant, yet his property could be attached. 
 
 Nature of the action. — ^The action must be one for recovery 
 of the money. The word the appears to be inserted through 
 some error. The authorities seem to determine, that whether an 
 action is for the recovery of money or not, is to be tested by the 
 summons — asking under the first subdivision of section 129 for 
 payment of money — and by the complaint, showing that judg- 
 ment for payment of money will be the judgment to be given, 
 and nothing more. The Code does not require that the contract 
 shall be one, stipulating by its terms for the payment of money ; 
 but only, that the action should be one arising on contract, and 
 that only money is sought to be recovered. It is enough if, by 
 reason of a contract, the defendant is liable to pay, and the plain- 
 tiff entitled to demand, a sum of money." 
 
 The phrase " for the recovery of money only," is "used in the 
 first subdivision of section 129, as to what shall be inserted in the 
 summons. The phrase " the recovery of money," is used in the 
 141st section, subdivision 3, concerning the demand of relief to 
 
 ' Laws of 1845, ch. 153. 
 
 " In The Matter of Brown, 21 Wendell, 316, &c. 
 
 ° Crojvden vs. Drew, 3 Duer, 652. 
 
394 ATTACHMENT. {§ 227. 
 
 be contained in a complaint. The complaint must state tlie 
 amount, the recovery of which is demanded. 
 
 In West vs. Brewster (1 Duer, 647) the complaint made a 
 
 case of the reception of moneys by an attorney ; asked for an 
 
 account, and judgment for the sum which should be found due. 
 
 ^The summons was for relief. It was held not to be an action for 
 
 the recovery of money only under section 129. 
 
 The affidavit under section 229 is to specify the amount of the 
 claim ; and under section 231, property sufficient to satisfy the 
 plaintiff's demand is to be taken. 
 
 In "Ward vs. Begg (18 Barbour, 139) the head-note is : " In 
 order to justify the issuing of an attachment under the Code, it is 
 not necessary that the plaintiff should have a cause of action for 
 the payment of money merely. It is enough that a cause of ac- 
 tion exists against the defendant, and that the amount of the 
 claim, and the grounds thereof, are stated." 
 
 But the summons in that case was for the recovery of money, 
 and the affidavit showed a debt arising from a sale of goods, and 
 a liability of the plaintiffs, as guarantors for the defendant, to 
 third persons for a definite sum. 
 
 In consideration of this, the defendant had agreed to consign 
 fish to the plaintiffs. ITeither the debt for the goods sold, nor the 
 debt guaranteed, had yet become due. The defendant was respon- 
 sible for the breach of his contract to send fish, and was liable to 
 be sued for it as soon as broken ; and the amount of the claim 
 was the debt payable and the amount of the guaranty. 
 
 The clause of the 227th section, now discussed, was not re- 
 ferred to; but it would seem that the case was within its just 
 construction. 
 
 The phraseology of the Revised Statutes was, " a debtor, 
 indebted on contract," " a demand against such debtor personally, 
 whether liquidated or not, arising on contract." The affidavit 
 was to specify the sum in which the debtor was indebted. 
 
 In Lenox vs. Howland (3 Caines, 323), it was held, upon sim- 
 ilar language in the former statute, that although the creditor is 
 to swear that the party is indebted to him in the sum of one hun- 
 dred dollars or upwards, it does not follow that the demand is 
 to be so certain as to fall within the technical definition of a debt, 
 or as to be susceptible of liquidation without the intervention of 
 
§ 227.] * ATTACHMENT. 395 
 
 a jury. Being indebted is equivalent to owing ; it is sufficient, 
 therefore, if the demand arise on contract. The action was 
 founded on contract, contained in a bill of lading for the delivery 
 of goods shipped on board of the defendant's vessel. It was an 
 uncertain, but a plain money demand. 
 
 A variety of cases, interpreting similar provisions in the laws 
 of other States, are stated by Mr. Drake in his learned work on 
 attachments.' Among them that of Wilson vs. Wilson (8 Gill's 
 Kep. 192) may be usefully referred to. It contains the doctrine 
 that where a contract sued upon furnished a standard by which 
 the amount due could be so clearly ascertained, as to enable the 
 plaintiff to aver it in his affidavit, or the jury by their verdict to 
 find it, an attachment might issue. 
 
 It is presumed that the particular character of our system 
 precludes an attachment upon a debt, which though undoubted 
 has not yet become payable. In some States this may be done.'' 
 
 In England the rule is thus stated : " An attachment will only 
 lie where the defendant could maintain an action of debt or dete- 
 nue in the Mayor's Court, or an action of debt, detenue, assump- 
 sit, or trover in the Superior Courts against the garnishee, for the 
 recovery of the debt or goods sought to be attached. In fact, the 
 plaintiff, at the trial of the attachment has to prove the case of 
 the defendant against the garnishee." ^ 
 
 'Eo demand can support an attachment which rests upon any 
 contingency to determine whether it will ever be due or not. An 
 accommodation acceptor cannot have it before the maturity of 
 the bill ; and his payment afterwards will not so retroact as to 
 sustain one issued before.* 
 
 The complaint in an action alleged a partnership and dissolu- 
 tion, an assignment to the defendant upon an agreement to pay 
 the debts and divide the surplus ; then alleged that there was a 
 surplus, but the amount the plaintiff was unable to state, and 
 demanded an account. An affidavit was afterwards made, stating 
 that there was due to the plaintiff the siim of $22,000. The 
 averments were similar to those of the complaint. An attach- 
 ment had been obtained. 
 
 ' Sections 50 and 60. ^ Drake on Attachment, section 5S. 
 
 ' Locke on Attachments, p. 27. 
 
 ' Eead vs. "Ware, 2 Louis. Ann. Rep. 498 ; Black vs. Zacharie, 3 Howard's Sup. 
 Court Eep. TJ. S. 483. 
 
396 ATTACHMENT. [§ 227. 
 
 Upon a motion to discharge it, Mr. Justice Leonard pointed 
 out the inconsistency between the complaint and aflSdaTit. The 
 former must be true. The amount could not be known without 
 an accounting. The party's opinion or belief was not enough. 
 He had not seen any statement of the condition of the affairs. 
 The attachment was vacated. (Ackroyd vs. Ackroyd, Supreme 
 Court ChamTjers, Nov. 1860.) 
 
 Against a foreign Corporation. — ^The attachment may issue 
 against a corporation created by or under the laws of any other 
 State government or country. 
 
 It is of importance to connect the 4r2Tth section of the Code 
 with this provision : " An action against a corporation created by 
 or under the laws of any other State, government, or country, 
 may be brought in the Supreme Court, the Superior Court of the 
 city of New York, or the Court of Common Pleas of the city 
 and county of New York, by a resident 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." 
 
 The mode of commencing such an action is pointed out in the 
 134th section, and the act of 1855, ch. 279. The summons may 
 be served upon the president or other head of the corporation, 
 &c., but such service could, before the amendment of 1859, be 
 made in respect to a foreign corporation only, when it has prop- 
 erty within the State, or the cause of action arose therein. So 
 by section 135, service by publication may be made, where the 
 defendant is a foreign corporation, has property within the State, 
 or the cause of action arose therein. 
 
 In Doty vs. The Michigan Central Railroad Co. (Special Term 
 Superior Court, May, 1859, 8 Abbotts' Eep. 427, before Wood- 
 ruff, Justice), the defendant was a foreign corporation, and the 
 plaintiff was a resident of this State. It did not appear that the 
 defendants had property, or that the cause of action arose in this 
 State. The complaint and summons had been served on one 
 Clarh within the city. Clark was not the president or other head 
 of the coi'poration, nor its secretary, cashier, treasurer, or director, 
 or managing agent. He received and paid out money for them ; 
 his name was printed as agent on tickets and circulars issued by 
 them in the city. They had not designated any person within 
 
§ 22T.] • ATTACHMENT. 397 
 
 the State on wliom process could be served under the act of 
 1856.' 
 
 It was held that the service on Clark did not warrant the en- 
 try of a judgment against the defendants, and one taken by de- 
 fault was set aside. The service had been made in 1850. 
 
 The amendment of April, 1859, to the ISith section is im- 
 portant. It appears to sanction the service of a summons, when 
 it can be made within the State, personally, on the president, 
 or treasurer, or secretary, in every case against a foreign corpora- 
 tion, whether the cause of action arose within the State, or the 
 corporation has property within it, or not. If a particular court 
 has jurisdiction of the subject-matter, it may in this manner get 
 jurisdiction over a foreign corporation, and thus issue an attach- 
 ment. 
 
 In Chamberlain vs. The New Orleans and Salem Eailroad Co. 
 (Special Term, February, 1866, Superior Court of New York, 
 Hoffman, Justice), it was observed, that all the provisions of the 
 Code upon the subject appear to imply that the action to which 
 this process is subservient, must be one which can be sustained in 
 the particular court out of which it issues. Such was the con- 
 struction before the 4:27th section of the Code was adopted. 
 (Fisher vs. Cui'tis, and other cases, 2 Sandf. Supr. Ct. Eep. 610.) 
 It was held that a non-resident plaintiff could not sustain an at- 
 tachment, in an action brought here, on a judgment recovered in 
 Ohio, against the defendants, a foreign corporation. 
 
 In The "Western Bank vs. The City Bank of Columbus (7 
 Howard, 238), both plaintiffs and defendants were foreign corpo- 
 rations. The plaintiffs lent the defendants $10,000, for which a 
 bill of exchange was given, drawn upon a resident of New York. 
 It was held that a foreign corporation could not sue another for- 
 eign corporation under the Eevised Statutes. (2 K. S. 467, § 1.) 
 It was not a resident, and could not be placed on a better footing 
 than a non-resident individual. It was also held that the cause 
 of action did not arise here. An attachment was discharged. 
 
 In Cantwell vs. The Dubuque E. E. Co. (17 Howard's Pr. 
 Eep. 16) the plaintiff resided in Ohio, and the defendant was a 
 foreign corporation created by the laws of Iowa. The action 
 was upon a promissory note, made at the defendant's office in 
 
 ' Ch. 279, p. 470, §§ 1 and 3, Session Laws, 1855. 
 
398 ATTACHMENT. • [§ 227. 
 
 Iowa, payable at the Metropolitan Bank in 'New York. It was 
 held that, as the plaintiff was a non-resident, the origin of the 
 canse of action must govern the case ; and that arose in Iowa, 
 where the contract was made ; and an attachment was discharged. 
 
 The history of this process in our State is thus stated in 
 McDonough vs. Phelps :' " The system of proceeding against a 
 foreign corporation originated, in this State, in the Revised Stat- 
 utes of 1830. The 15th, and several subsequent sections, gave 
 the right to sue, and prescribed the mode (2 E. S. 459). The 
 revisers refer to McQueen vs. The Middletown Company (16 John. 
 Eep. 5) as deciding that an attachment would not lie against a 
 foreign corporation, under the absent debtor act, and to a decision 
 in Chancery, affirmed on appeal, that that court had no jurisdic- 
 tion to attach its property. 
 
 " The protection of our citizens required that some provision 
 should be made to render such corporations amenable to our laws, 
 and in our own courts. The sections had been drawn in analogy 
 to the act as to attachments against absent and absconding debt- 
 ors. Accordingly, the whole theory of those provisions was one 
 of a process against property found in the State. But there was 
 nothing preventing the Legislature from enacting that suits may 
 be commenced in any. other mode, which will operate upon foreign 
 corporations, as much as upon individuals who are foreigners. 
 Accordingly, section 134 of the Code has provided for the service 
 of a summons upon a president, directors, &c., and other sections 
 regulate the course of proceeding against them." 
 
 It may be useful here to notice the various statutes passed 
 npon this subject of proceedings against foreign corporations : 
 the Eevised Statutes of 1830 (2 E. S. 461, § 30, &c.) ; Laws of 
 1840, ch. 354 ; Laws of 1842, ch. 197 ; Laws of 1845, ch. 234 ; 
 Laws of 1848, ch. 53; Code, § 134, as amended in 1859, and 
 Code, § 471, as to the force of statutory provisions, where not 
 inconsistent with the Code. 
 
 A debt due by a foreign corporation to a non-resident debtor 
 upon a contract made out of the State, is not the subject of an 
 attachment. 
 
 Thus, in Willett vs. The Equitable Ins. Co. (10 Abbott, 193), 
 the defendant was a foreign insurance company, and the plaintiff, 
 
 ' 16 Howard's Pr. Eep. StB, Hoffman, Justice. 
 
§ 227.] ATTACHMENT. 399 
 
 as sheriff, had attached a debt which it owed to Cook & Barton, 
 residents of another State, on a policy of insurance, in an action 
 hy one Appleton. The present suit was brought to reduce the 
 debt into possession. A copy of the attachment was left with 
 the agent of the company, but such agent was only temporarily 
 here. There was no agency established in the State of JS'ew York. 
 It was held that the debt was not property, or a debt within this 
 State, so as to be reached by an attachment ; and the complaint 
 was dismissed. 
 
 Against a non-resident. — An attachment may issue against a 
 defendant who is not a resident of this State. The provision of 
 the Revised Statutes of 1830 was, that the real and personal 
 property of a debtor might be attached, whenever any person, 
 not being a resident of this State, shall be indebted on a contract 
 made within this State, or to a creditor residing within this State, 
 although upon a contract made elsewhere. 
 
 Under the last clause of this provision, the cases of The People 
 vs. GriflSth (Lalor's Supp. to Denio & Hill, 447), of Staples vs. 
 Fairbanks (3 Comst. 41), and Payne vs. Young (4 Selden, 158), 
 show the necessity of an explicit allegation in the papers of the 
 residence of the plaintiff being within the State. The descrip- 
 tion of the parties being of the city of N^ew York, was held in- 
 sufficient. 
 
 But, as a non-resident may have the writ where he can sustain 
 the action, this may not be so necessary, under the Code, except 
 when the action is against a foreign corporation. 
 
 The following are leading cases, determining what constitutes 
 a defendant a non-resident of this State, within the sense of the 
 Code : Lee vs. Stanley (9 Howard's Pr. Rep. 272) ; Houghton vs. 
 Ault (16 Howard, 77) ; Chaine vs. Wilson (ibid. 552 ; 8 Abbott, 
 78) ; Greaton vs. Morgan (ibid. 64). They contain references to 
 many others of the most importance. 
 
 In Lee vs. Stanley, the defendant kept a house in Bradford, 
 New Hampshire, where his wife and family resided, in which he 
 entertained his friends, and which was called his house. He had 
 a store of goods and was doing business in Franklin County in 
 this State. He appeared to have divided his time about equally 
 between these two and a third place. An attachment was sus- 
 tained. 
 
4:00 ATTACHMENT. [§ 227. 
 
 In Houghton vs. Ault, the defendant had a family residing at 
 Portsmouth, Canada, and there owned a ship-yard. He leased a 
 marine railway at Ogdensburgh ; began business there, and car- 
 ried it on until the issuing of the attachment in December, 1857. 
 During that period he was most of his time at Ogdensburgh — ^his 
 family keeping house at Portsmouth. He continued to do work 
 also at the latter place, where he had property to a considerable 
 amount. It was held that his legal residence was in Canada, and 
 a motion to discharge an attachment was denied. 
 
 In Barry vs. Bockover,' there was a motion to discharge an 
 attachment. The defendant was a member of a firm doing busi- 
 ness in JSTew York since 1854. He spent the whole of every 
 business day in New York, with the exception of occasional ab- 
 sences from sickness, or on business of the firm. All his working 
 capital was invested in New York, where his individual bank 
 account, as well as that of his firm, was kept. He had spent 
 eight hours of every business day in the city. Process could have 
 been served upon him, and was actually served upon him at his 
 store. His family, however, resided in Jersey City, in a house 
 hired by him, and he slept there every night, with occasional ab- 
 sences, and remained there regularly from Saturday night to 
 Monday morning. He owned no real estate in New Jersey. It 
 was held that he was a non-resident, and the attachment was sus- 
 tained. 
 
 The facts in the case of Chaine vs. Wilson' are numerous and 
 complicated. The following is a summary of those which are 
 material, as they are found in the opinions of the judges, both at 
 Special and General Term : 
 
 The defendant was confessedly a resident of Norwalk, in the 
 State of Connecticut, down to about August, 1856. From that 
 period until the fall of 1857, he left his family in Norwalk, on the 
 farm theretofore occupied by them ; spending, as a general rule, 
 Sunday there ; returning to New York on Monday ; usually re- 
 maining there until Saturday, but sometimes going to Norwalk 
 on Wednesday, and returning on Thursday. While in New York 
 he occupied a room, as an ordinary guest, at a public hotel. 
 
 " 6 Abbotts' Rep. 3*74, Superior Court, General Term. 
 
 ' Special Term, Superior Court, 16 Howard, 552; 8 Abbott, 78 ; General Term, 1 
 BoBworth, 673. 
 
§ 227.] ArrACHMENT. 401 
 
 In the fall (October) of 1857 he brought his wife and child to 
 the city ; took rooms at a hotel ; occupied them for aboiit three 
 months, paying his bills weekly, when he gave them up, and 
 went to ISTorwalk. This was about January, 1858. There was 
 no evidence of his being in New York for a day until the latter 
 end of May. For the most of the time he was sick. 
 
 His wife and child spent a few days at a hotel in JSTew York 
 during March, 1858, occupying a room as transient guests. 
 
 He had been advised, upon the embarrassment of his firm 
 arising in the fall of 1857, to make New York unequivocally his 
 residence, from the risk of attachments. He conveyed his farm 
 to his SOD, and the deed was recorded when he became embar- 
 rassed. But the farm had been open to his and family's use as 
 much as it had ever been. : 
 
 There are several other, but less important, matters stated in 
 the afiidavits and noticed in the opinions. It is not thought 
 necessary to detail them. The foregoing statement comprises the 
 main facts on which the decision proceeded. 
 
 Attachments issued from the 13th of April to the 1st of July, 
 1858, were sustained. 
 
 The following are extracts from the opinions of Justice Hoff- 
 man at Special, and Justice Woodruff at General Term : 
 
 Justice Hoffman said : " These facts present two striking 
 points : First. Of a clear case of domicil and residence at ISTor- 
 walk down to the fall of 1857 ; and, next, that at the time of 
 issuing two of the attachments there was no actual residence in 
 this city, and had not been for about four months ; but an actual 
 residence in Norwalk, without the least connection with a resi- 
 dence in New York, by ownership of, or hiring a house, or even 
 a room within it. 
 
 . " The character of the residence, from October, 1857, to Jan- 
 uary, 1858, may, perhaps, present a very different case from that 
 which will arise upon the facts subsequently, and might have 
 exempted the defendant from the provisions of the attachment 
 law. But, from January to the end of May, he had entirely de- 
 tached himself from every semblance of residence in New York, 
 and had resumed his former domicil and dwelling. A more difii- 
 cult question may be in relation to the other three attachments, 
 sued out when he was in the actual occupation of a room in the 
 26 
 
402 ATTACHMENT. [§ 227. 
 
 hotel — had been so for over a month — and continued so for some 
 time afterwards, with occasional absences. 
 
 " It is to my mind clear that his domicil, for the purposes of 
 succession, testacy, or intestacy, liability to taxation, and enjoy- 
 ment of the privilege of voting, continued through the whole 
 period, and was, at the date of each of the attachments, in ]^or- 
 walk. 
 
 " The opinion of the Master of the Rolls, in Somraerville vs. 
 Sommerville (5 Yesey E. 786), is as sure a guide upon this ques- 
 tion as can be found. 
 
 " The domicil established upon the facts in the present case is 
 like the domicil of origin constituted there, ' and it is to prevail 
 until the party has not only acquired another, but has manifested 
 and carried into execution an intention of abandoning his former 
 domicil, and taking another as his sole domicil.' 
 
 " So, Lord Cottenham says, in Munro vs. Munro (7 Clark & Fin. 
 E.ep. 77) : ' To effect the abandonment of the domicil of origin, 
 and substitute another in its place, is required. Is concowrs de la 
 volonte et dufait — animo et facto / that is, the choice of a place, 
 actual residence in the place then chosen, and that it should be 
 the principal and permanent residence,' 
 
 " The case of Somerville vs. Anderson (22 Eng. Law &Eq. Eep. 
 614, and before the Privy Council, 29 id. 59) applied the same 
 rules to a domicil of choice as are applicable to one of origin. 
 The party had lost his origin of birth by residence in England, 
 with intention to abide there ; and was held to have lost the lat- 
 ter domicil, from a residence in France — keeping house for thir- 
 teen years there — with only occasional absences ; and to have 
 acquired one in France. He broke up entirely his English estab- 
 lishment upon removing to France. 
 
 " In Evins vs. Smith (14 Howard U. S. S. C. Eep. 400 ; Curtis, 
 Ed., vol. 20, p. 252), Justice Wayne, delivering the opinion of 
 the court, says : ' It is difficult to lay down any rule under which 
 every instance of residence could be brought, which may make a 
 domicil of choice. But there must be, to constitute it, actual 
 residence within the place, with the intention that it is to be a 
 principal and permanent residence.' 
 
 " And we find it laid down that the domicil of a married man 
 is the place of the habitual dwelling of the husband's family, al- 
 
§ 227.] ATTACHMENT. 403 
 
 though he may he conducting business elsewhere. (Phillimore 
 on Domicil, § 209, &c. ; Story's Conflict of Laws, p. 57 ; Catlin 
 vs. Gladding, 4 Mason's Eep. ; see, also, the elaborate opinion of 
 Surrogate Bradford, in Isham vs. Gebbins, 1 Bradford's Eep. 69.) 
 
 " It is not to be denied that domicil may exist independently of 
 habitation, using that term as denoting merely actual abiding 
 within a place. But contemplated habitation or rehabitation is 
 also an element in the legal idea of domicil, when actual habita- 
 tion does not exist. The dwelling in one place, which is thus 
 consistent with a continued domicil in another, is, under certain 
 circumstances, called a commercial domicil — the residence nego- 
 tiorum ratione of the civil law. (Yoet on the Pandects, B. 5, 
 Tit. 1, § 98 ; Drake on Attachments, § 67.) 
 
 " In Payne vs. Taylor (10th Louisiana Eep. 726), the suit was 
 commenced by attachment of the property of David Taylor, as a 
 'resident of Massachusetts. He had for several years before been 
 dwelling in ISew Orleans, and doing commercial business there 
 under the name of D. Taylor & Co. In support of a motion to 
 discharge an attachment, it was urged that his long commercial 
 domicil made him a resident of New Orleans, where he could 
 always be served with process. But the motion was denied. The 
 phrase in the Code of Louisiana is nearly the same as in our own. 
 (See, also, Bryan vs. Diarse, 1 Martin's Louisiana Eep. 412, new 
 series.) 
 
 " Jackson vs. Perry (13 Bal. Moor. 211) is a valuable case to 
 the point, that the ability to serve process upon a party from 
 finding him within the State, is not the basis of an attachment law 
 against the property of non-residents. 
 
 " It must be admitted that several cases have countenanced the 
 doctrine that, under the attachment law before the Code, the 
 question depends upon the fact of a mere abiding in a place for 
 some continuance of time, wholly irrespective of the true domicil. 
 (In the matter of Thompson, 1 "Wend. E. 45 ; Haggart vs. Mor- 
 gan, 4 Sandf. Eep. 198, and 1 Selden E. 422 ; Bartlett vs. The 
 City of New York, 5 Sand. E. 46.) A very able, and to my 
 mind satisfactory view of these cases, is to be found in the opinion 
 of Justice James in Houghton vs. Ault (16 Howard E. 78). 
 
 "That examination is, I think, sufficient to show that those cases 
 (even that of Haggart vs. Morgan, in the Court of Appeals), as it 
 
404: ATTACHMENT. [§ 227 
 
 did not control the ease before the learned judge, could not govern 
 the present one. Still, the last-mentioned case, although the de- 
 cision was upon the ground of the execution of the bond having 
 concluded the party, may, perhaps, be treated as deciding that an 
 absence of three years from an acknowledged domieil, and dwell- 
 ing for that period in another place for business purposes, makes 
 the party a non-resident of the first place within the statute. 
 
 " It would be difficult to contest the truth of the converse of 
 this decision, and to avoid holding that, if a party was dwelling 
 habitually in New York for the same period, and solely for busi- 
 ness purposes, he would be deemed a resident of New York, al- 
 though his domieil was clearly elsewhere. But the principle of 
 these cases opens the question of the nature, object, and duration 
 of absence or dwelling which is to control each particular case. 
 It would not be pretended that the dwelling for a week for a 
 special purpose in ISTew York made a party a resident, whose fixed • 
 habitation or domieil was elsewhere. So, we perceive, that if 
 ithe domieil does not supply a decisive rule, neither does the mere 
 a,biding within the place at the time of the service of the writ fur- 
 nish it ; and thus each case must be left to the operation of all 
 ,the rules usually applied to determine similar questions. 
 
 "When this is conceded, then the case is open to the important 
 consideration urged by Mr. Justice James, that the attachment 
 under the Code differs from that under the Revised Statutes, in 
 this, ' that it is not a process for the commencement of an action, 
 but is an arrest of the party's property in the nature of bail, for 
 the payment of such judgment as he may obtain.' " 
 
 Justice Hoffman then cited and examined the cases of Hough- 
 ton vs. Ault ; Lee vs. Stanley (9 Howard's Pr. Kep. 273) ; and Barry 
 vs.. Bockover (6 Abbott, 374:), and proceeded : 
 
 " These .eases appear to me to have restored the criterion of 
 domieil to a strong, if not controlling influence upon these ques- 
 tions under the Code. Indeed, they decide little more tlian is 
 contained in the early case of Fitzgerald (2 Caines, 318). 
 
 " The law of domieil has sprung from the Civil Code, and we 
 may with advantage resort to the exposition of that law upon the 
 eubject. The statement of its rule generally found in Treatises 
 and Decisions is, uil quis larem ac fortunarum suarum summam 
 eonstituit. The residue of the passage is, Unde rttrsus non sit 
 
§ 227.] ATTACHMENT. 405 
 
 discessurus si nihil avocet ; unde cum prof eotus est, peregrinari 
 mdetur ; quo si rediit, peregrinari jam destitit. (Domat., vol 
 2, p. 484.) 
 
 " What is the meaning of the word larem in this definition ? 
 Lord Eosslynin the Douglass case (see 5 YeseyRep. 758), adverts 
 to an expression in one of the letters in evidence, that the writer 
 did not mean to set up his tabernacle in Scotland, and speaks of 
 this phrase as a fair interpretation of the word larem. If we look 
 to its signification in writers of acknowledged authority, it will 
 be found mainly to designate either the tutelary deity of the 
 hearth, or the only home of the family.' 
 
 " In either sense, JSTorwalk constituted the larem of the de- 
 fendant. So all that we can gather from the papers before us, as 
 to the mass of his fortune {summan fortunarum), indicates the 
 possession of a homestead in Norwalk, while his floating capital 
 was in ISTew York, in the midst of agitation and peril. In the 
 fall of 1857, ' his commercial embarrassments began,' and we may 
 infer from the result, that such capital was inadequate to meet his 
 debts. Then it was that the deed of the homestead to his son was 
 recorded, and then the advice to remove his family to New York 
 was given and acted upon. 
 
 " I do not think that this subject can be properly treated with- 
 out adverting to the important decisions in Admiralty respecting 
 the residence of a citizen in an enemy's country, to subject his 
 property to seizure and condemnation in time of war. The au- 
 thorities before Sir William Scott, are all cited and commented 
 upon in the great ease of The Yenus (8 Cranch R. 253), in the 
 opinions of Justice Washington and Chief Justice Marshall. 
 
 " It is suflB.cient for me to say, that the governing rule was 
 admitted to be the removing from an established domicil, with 
 
 ' Dii penates meum parentum familifeque Lar pater, vobis mando ; meura paren- 
 tum rem bene ut tutemini; ego mihi, alios decs penates persequar, aliuni Larem. 
 (Plautua.) Laribua in foco, penatralibus, in atrio, aut interiore ajdium parte sacra fie- 
 bant. (Ibid.) Omnium sedium ac familiarum dii erant , iisque focus peculiariter sacer 
 erat. (Forcellini Lexicon in verbo.) 
 
 Illos binas, aut amplius domos continuare nobis larum familiarum nus-quam uUum 
 esse. (Sallust.) 
 
 The definition of Domiciliura, in the dictionary of Forcellini ex cura Facciolati is, 
 Domus, jEdes, Domestica Habitatio. (In verbo.) 
 
406 ATTACHMENT. [§ 227. 
 
 the intention of making a permanent settlement, or for an indefi- 
 nite time elsewhere. With such an intention the right of the 
 domicil might be acquired upon a residence of even a few days. 
 It was admitted in the case, that the claimants had acquired a 
 right of domicil in Great Britain at the time of the breaking out 
 of the war ; and thus the question was, what was the consequence 
 of the capture of such a person's property on the high seas ? 
 
 " I think that upon the application of the leading principles 
 and cases I have thus referred to, the legal conclusion is, that the 
 defendant, Wilson, was not a resident of New York at the date 
 of these attachments. Through all the periods of his business 
 prosperity, we find his domestic hearth and his household com- 
 forts at l^orwalk ; his hopes of the enjoyment of the fruits of his 
 labor were there concentrated ; and in adversity he turns instinct- 
 ively to the same place for respite and repose. It is only when 
 the struggle with hostile fortune had begun, and the apprehension 
 arose that his property would be swept away from the purposes 
 to which he might wish to destine it, that he brought his family 
 to reside temporarily in 'New York. It is impossible, I think, to 
 look upon him as more than a sojourner in this city — with no 
 intention of remaining there fixedly, but with an intention, in all 
 the vicissitudes of his business and of life, of finding his perma- 
 nent home at Norwalk." 
 
 Mr. Justice Woodruff, in delivering the opinion of the court, 
 at General Term, stated the case of Barry vs. Bockover (General 
 Term, Superior Court, April, 1858), and said : 
 
 " It is, therefore, to be deemed settled in this court, that the 
 right of a plaintiff to have the property of a defendant attached, 
 on the ground of his non-residence, does not depend upon the 
 question whether the defendant can be served with the summons 
 in the action. Also, that the carrying on of a mercantile busi- 
 ness in this city, 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 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 whom he provides, to whom he resorts 
 for comfort, relaxation, and repose, and with whom he abides 
 
§ 227.] ATTACHMENT. iOI 
 
 whenever the immediate demands of his business upon his atten- 
 tion 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, where (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." 
 
 " Ordinarily, one's residence and domicile (if they do not 
 always mean the same thing) are in fact the same ; and where 
 they so concur, they are that place which we all mean when we 
 speak of one's home." 
 
 The learned judge' proceeded to a critical examination of the 
 affidavits, and concluded that there was no sufficient ground foi 
 holding that the conclusion of the judge at Special Term, that 
 Wilson's residence was in Connecticut, was wrong. On the con- 
 trary, that sitting as jurors, and acting under proper instructions 
 touching the law, the court inclined to think they would have 
 come to the same result. 
 
 Defendants jointly liable. — There are several authorities to 
 show that, where the action is against several jointly liable, and 
 one is a non-resident, and the others resident, an attachment may 
 be allowed, and the joint property taken. 
 
 In vs. (1 Duer Rep. 662) the action was against two 
 
 defendants jointly liable upon a contract. The summons had 
 been personally served upon one. The other was a non-resident, 
 and a warrant of attachment was allowed. 
 
 In Brewster vs. Honingsburgers (2 Code Rep. 50, at Special 
 Term, Supreme Court), Justice Hurlbut held, where one of sev- 
 eral joint promisors on a note was a non-resident, and the others 
 residents, an attachment might issue, and partnership property 
 be taken. 
 
 So, in Baird vs. Walker and others (12 Barb. 298), the action 
 was upon a bond given upon an attachment against Walker, one 
 of a firm which became indebted to the plaintiff. Walker was a 
 non-resident, and Hurlbut, the other partner, a resident. It was 
 held that the attachment was valid, and the action on the bond 
 could be sustained. 
 
 These cases were followed in a case at Special Term of the 
 
408 ATTACHMENT. [§ 227. 
 
 Superior Court.' The action was for rent on a lease to three de- 
 fendants jointly, who were partners in trade, one of them being a 
 non-resident. An attachment was issued, and the partnership 
 property taken. 
 
 It may be suggested whether this rule does not tend to need- 
 less expense and trouble, where there is no question as to the 
 responsibility of the resident defendants, or of the firm. 
 
 In a case before Ch. Justice Bosworth, of the Superior Court, 
 April, 1861, the summons had been served upon one only of sev' 
 eral partners, who was a resident, and the others being non-resi- 
 dents ; an attachment issued, and partnership goods were then 
 taken. An assignment was then made of* partnership property, 
 including the goods so taken. The assignee brought an action 
 for an injunction and receiver, to prevent the money, the proceeds 
 of the goods, going to the attaching creditor. Judgment had 
 been obtained, and the goods sold. It was insisted, on behalf of 
 the plaintiffs, that nothing was affected by the attachment but 
 the resulting interest of the absent partner, after all the debts 
 were paid, and his own account with the firm adjusted. The 
 attaching creditors being of undoubted responsibility and parties 
 to the action, the Chief Justice refused to interfere. 
 
 Foreign monarch or state. — A singular case is mentioned by 
 Mr. Locke," in which G-arnishees alleged to have property of the 
 Queen of Spain were attached, on the ground of a debt for inter- 
 est on bonds entered into by or on her behalf as Queen Eegent, 
 for her daughter the Queen of Spain. On motion to discharge 
 the attachment on common bail, the Eecorder held that an at- 
 tachment was not equivalent to an arrest, but was analogous to a 
 distringas. He would not enter into the merits, but denied the 
 aj^jplication. 
 
 This case came before the Queen's Beneh,^ and it was held 
 that a foreign sovereign was not liable on contracts made in a 
 sovereign capacity. See, also, De Haber vs. The Queen of Por- 
 tugal.* 
 
 The great principle was that the sovereign was the representa- 
 
 ' Mortimer vs. Brunner and others, Sept. 6, 1869 — HofJinan, Justice 
 '' Wadsworth m. Martin and others, and tlie Queen of Spain, Locke on Attach- 
 ments, p. 1. 
 
 ' Wadsworth vs. The Queen of Spain, 11 Queen's Bench Rep. 111. 
 * Ibid. 
 
§ 227.] ATTACHMENT. 409 
 
 tive of the nation of whicli he was the head, and no English court 
 could entertain an action against him for any act done or omitted 
 to be done in his public capacity as such representative. As the 
 court had no jurisdiction over the person, an attachment of the 
 property in another's hands could not be sustained. A prohibi- 
 tion went to the mayor's court. 
 
 The case of The Duke of Brunswiek vs. The King of Hanover 
 (6 Beavan, 1st & 2d House of Lords' Cases, 1) was cited and relied 
 upon. 
 
 Lord Campbell said : " To cite a foreign potentate in a muni- 
 cipal court for any complaint against him in his public capacity, 
 is contrary to the law of nations, and an insult which he is en- 
 titled to resent." 
 
 Against absconding or concealed party, — The attachment may 
 issue against a defendant who has absconded or concealed him- 
 self. 
 
 There was a similar provision in the Revised Statutes : " The 
 real and personal property of a debtor may be attached for the 
 payment of his debts whenever such debtor, ieing an inhabitant 
 of this State, shall secretly depart therefrom, with intent to de- 
 fraud his creditors, or to avoid the service of civil process, or shall 
 keep himself concealed therein with the like intent." (2 K. S., 
 p. 3, § 1.) 
 
 The clause of the Code now considered must be examined in 
 connection with the 229th section. The affidavit is to show that 
 the defendant has departed from the State with intent to defraud 
 his creditors, or to avoid service of a summons, or keeps himself 
 concealed therein with a like intent. 
 
 The clause appears to imply residence or inhabitancy within 
 the State, and then the Code scarcely differs from the statute, 
 except as to the secrecy of the departure. 
 
 It has been held that the absconding or departure need not 
 be made secretly, but that it will be sufficient if the intent is 
 made out to avoid service of the summons by the departure.' 
 
 An affidavit that the plaintiif believes the defendant keeps 
 himself concealed to avoid service, is not sufficient. Facts upon 
 which the belief is founded must be set fortli, so that the court 
 
 • 
 
 ^ Morgan vs. Avery, 7 Barbour, 656 ; 2 Code Rep. 91. 
 
410 ATTACHMENT. [§ 227. 
 
 may judge whether there is ground for such belief. It should be 
 stated that inquiry has been diligently made, and where made, 
 and of whom.' 
 
 It is a concealment to avoid service of the summons — no mat- 
 ter for what length of time — no matter if with a view to make a 
 disposition, even lawful, of his property — the placing himself de- 
 signedly so that his creditors cannot reach him with process, 
 which is the concealment contemplated in the act." 
 
 The question seems to be, did the defendant conceal himself, 
 even temporarily, with the purpose of avoiding service of the 
 summons ? ' 
 
 "We iind, by comparing this clause with the 229th section, that 
 the absconding from the State may be either with the intent to 
 defraud creditors, or to avoid service of the summons. So the 
 concealment in the State is not, it is supposed, to be exclusively 
 with the intent to defraud creditors, but with that intent, or with 
 the intent to avoid the service. 
 
 In Castellanos vs. Jones (1 Selden, 164), the affidavit of the 
 applicant stated that the said Rodriques was an inhabitant of this 
 State, but that since the 14th of January instant he has abscond- 
 ed or concealed himself to avoid service of civil process ; that 
 said Rodriques cannot be found, and is not at his usual place of 
 business ; that deponent has tried to serve civil process upon him, 
 but that he cannot be found ; that his sign has been removed 
 from his store within the last two days, and that the person in 
 charge refused to give any information as to where he was con- 
 cealed or gone to. 
 
 The affidavits of two persons were annexed. The application 
 was held defective on different grounds ; and the affidavit verify- 
 ing it, and above set forth, was declared to fall short of stating 
 the facts authorizing an attachment. Although it was stated that 
 Rodriques was an inhabitant of the State, it did not affirm that 
 he had departed therefrom, with intent to defraud his creditors, 
 secretly or otherwise ; or that he had departed therefrom to avoid 
 
 ' Camman vs. Tompkins, 1 Code Rep. N. S. 12. 
 
 ' Ibid. 
 
 ' Ibid, and Genin vs. Tompkins, 12 Barbour, 266. 
 
§ 227.] ATTACHMENT. 411 
 
 the service of civil process, or that he kept himself concealed 
 within the State with the like intent.' 
 
 In Van Alstyne vs. Erwine (1 Kernan, 331), under the Re- 
 vised Statutes, the affidavit was in the disjunctive — that the 
 dehtor had departed from the State, or was concealed within it, 
 with an intent to defraud his creditors. The facts stated in the 
 affidavits would sustain either aspect of the case. The case of 
 The People vs. The Eecorder of Albany (6 Hill, 429) was cited 
 to the point, that where the circumstances are such that it is 
 doubtful in what particular the defendant's conduct has brought 
 him within a statute, the creditor has only to state all the facts, 
 without electing which aspect he will adopt. The affidavit was 
 held sufficient. 
 
 Removal of property. — The attachment may issue whenever 
 any person or corporation is about to remove any of his or its 
 property from the State. 
 
 By section 229 the affidavit is to show, that such person or 
 corporation has removed, or is about to remove, any of his prop- 
 erty from this State, with the intent to defraud his or its creditors, 
 whether such defendant be a resident of this State or not. 
 
 The provision in question was enacted in the amendments of 
 1857. 
 
 Section 179, subdivision 5, contains a similar provision, au- 
 thorizing an arrest under such circumstances, except that the 
 removal /rom this State is not found in it. 
 
 The 34th section of the Non-Imprisonment Act of 1831," rela- 
 tive to suits by attachment in Justices' Courts, provides that the 
 suit might be so commenced, when it shall satisfactorily appear 
 that the defendant is about to remove from the county any of his 
 property, with intent to defraud his creditors ; and by the fourth 
 section of the same act, a warrant to arrest a party may issue, 
 " when the defendant is about to remove any of his property out 
 of the jurisdiction of the court in which the suit is brought, with 
 intent to defraud his creditors." ' 
 
 ' This case, exacting great precision and fullness in the affidavit, should be care- 
 fuUy studied by the practitioner. 
 = Sess. Laws, 1831, ch. 310, p. 404. 
 = See 2 R. S., 6th Ed., Vol. 3, p. 126. 
 
412 ATTACHMENT. [§ 227. 
 
 Under this 34th section it was held, in Smith vs. Luce (29 
 Wendell, 237), " that an affidavit that the deponent believed that 
 J. S. is about to remove, or has removed from said county his- 
 property, with intent to defraud his creditors, or has assigned, 
 disposed of, secreted, or is about to assign, dispose of, or secrete 
 his property, with the like intent," was insufficient. The justice 
 must be satisfied, and he must be so satisfied from proof of facts 
 and circumstances. Facts must be shown which leave no reason- 
 able doubt on his mind. . 
 
 In Yredenburgh vs. Hendricks (17 Barbour, 179) the affidavit 
 comprised the allegation that the defendant had removed or dis- 
 posed of his property with intent to defraud his creditors, or was 
 about to do so. The rule was stated, that there must be some 
 legal evidence (it might be slight) to give jurisdiction ;. but some 
 evidence calling upon the judgment of the officer as to its suffi- 
 ciency. The facts stated in the affidavit were then examined, 
 and held wholly inadequate to warrant the attachment. 
 
 In Mott vs. Lawrence,' the attachment was applied for on the 
 ground of an intent to remove property out of the county. The 
 only facts sworn to were, that the defendant closed up his place 
 of business on the 21st of October, 1858, and immediately com- 
 menced packing up his goods, and continued packing them tiU 
 midnight, ready to be removed ; that his store was closed the fol- 
 lowing day, before the warrant issued ; that on the 20th October, 
 he had removed his family, without informing the plaintiff, who 
 resided in the same building. . The affidavit was held to be insuf- 
 ficient. It did not make a clear j>rima, facie case. 
 
 The attachment in this case had been granted by a justice un- 
 der the statute of 1842, p. 74. This will account for the language 
 of the court, that no counter proof can be allowed on a motion to 
 discharge the attachment. 
 
 It is settled by decisions in other States, under provisions very 
 similar to the present, that the naked fact of removal of property 
 out of the State is not sufficient. It must be done with a view to 
 the injury of a creditor; with the intent to defraud his creditors, 
 as is expressed in our own provisions. 
 
 Thus, where the subject attached was a steamboat, purchased 
 
 ' 17 Howard, 559, Gen. Term Common Pleas. 
 
§ 227.] ATTACHMENT. 413 
 
 of the plaintiff, and the regular business of whicli was running 
 out of the State and back, and no special case of fraud was made 
 out, the attachment was held invalid.' 
 
 So, w^here a large amount of the debtor's property remained 
 in the State, and the writ was levied on some iron, all the prop- 
 erty in the county, evidence of the possession of the other prop- 
 erty, free of incumbrance, and suificient to pay the demand, was 
 held admissible upon the question of injury to the creditor.'' 
 
 Fraudulent assignment or secretion of property, &c. — An attach- 
 ment may issue when any person or corporation has assigned, or 
 disposed of, or secreted, or is about to assign, dispose of, or secrete 
 any of his or its property, with the intent to defraud creditors. 
 Section 229 adds the words, " whether such defendant be a resi- 
 dent of this State or not." This provision is first found in the 
 amendment of 1857. " The Code speaks of the secreting of the 
 defendant'' s property. By that is meant any property in his pos- 
 session, and to which he claimed title, although his title is imper- 
 fect, or clearly bad. The attachment lies, if the defendant has, or 
 is about to secrete any single piece of his property, and extends 
 to all his property of every kind, because the single act shows a 
 readiness and intent to extend the offence as far as may be neces- 
 sary to promote his fraudulent designs. . This design is as mani- 
 fest in concealing embezzled property as in concealing that which 
 is lawfully his." ° # 
 
 The allowance of judgments to go by default, without show- 
 ing any fraud or collusion between the judgment debtor and 
 creditor, is not a conveyance or disposition of property within 
 this section." 
 
 Conveyances, by the debtor, apparently absolute and made 
 un4er suspicious circumstances, may be explained by affidavits, 
 and the purposes and consideration stated. The apparent fraudu- 
 lent intent may thus be negatived. 
 
 Thus, in Eigney vs. Talmadge, before cited, a deed of prop- 
 
 ■ Russell vs: Wilson (18 Louis. Rep. 36). 
 
 ^ White vs. Wilson (10 Illinois Rep. 21). See also Runyon vs. Morgan, 7 Humph- 
 reys, 210, cited by Mr. Drake on Attachments. 
 
 ^ Treadwell vs. Lawlor (13 Howard Pr. Rep. 8, Gen. Term, 1st District). 
 
 ■■ Rigney vs. Talmadge Special Term, 1st Dist., Sept. 1859, Ingraham, J. (iT How- 
 ard, 556). 
 
414 , ATTACHMENT. [§ 22Y. 
 
 erty was made to one Harder, which, from the omission to state 
 the purposes (of security) for which it was given, and other cir- 
 cumstances, was suspicious, and warranted an attachment. The 
 affidavits satisfied the court that it was made for honest purposes, 
 in order to protect the grantee for his liability as surety fairly en- 
 tered into, and sufficient to disprove a fraudulent intent. 
 
 A threat by a debtor, that he would assign and put his prop- 
 erty out of his hands, made in words, which may be construed to 
 mean that he would make a lawful assignment, is not, without 
 any evidence of contemporaneous or subsequent acts showing a 
 fraudulent intent, a sufficient ground for an attachment. In this 
 case, the defendant afterwards made a legal assignment. The 
 language of the affidavit was, that the defendant said he wished 
 to compromise with his creditors ; and if the deponent did not 
 agree to take 33^ per cent., he would go home and make an as- 
 signment of his property, and that plaintiffs would not get any- 
 thing of their claim, and that he would put his property out of 
 his hands sooner than pay them more than 33J per cent.' 
 
 Attachment and arrest or injunction together. — It has been held 
 that an attachment and arrest may be granted simultaneously. 
 
 In Lithaner vs. Turner (1 Code Eep. K. S. 210) a motion to 
 vacate an order of arrest was denied, although it was admitted 
 that an attachment between the same parties, and for the same 
 cause of action, was pending, and soine property garnished in 
 Arkansas. A similar decision was made in Fowler vs. Brockj 
 April 7, 1851. (Ibid.) 
 
 The question in these cases properly was, whether an action 
 depending in another State would bar one here. 
 
 In Merritt vs. Thompson (3 E. D. Smith, 284), it was held that 
 an injunction might be granted, although upon the same state of 
 facts, and additional facts, the plaintiff made a case entitling him 
 to an order of arrest. 
 
 In Beebe vs. Rogers," an order of arrest was granted upon 
 affidavits, showing the obtaining of goods on false pretences, and 
 an attachment on the ground of a fraudulent disposition of prop- 
 erty. In March, 1860, a motion was made before Hoffman, Jus- 
 
 ' Wilson vs. Britton, 6 Abbotts' Rep. 97 ; 26 Barbour, 562. 
 " Chambers Superior Court, Oct. 27, 1859 — Bosworth, Justice. 
 
§ 227.] ATTACHMENT. 415 
 
 tice, to discharge both, upon aiBdavits' touching the merits in each 
 instance, which application was denied. Upon appeal, the order 
 was affirmed by the General Term, May 26, 1860. The point was 
 not raised by counsel, but was discussed by the judges. 
 
 In Clark vs. Tuggle (18 Georgia Eep. 606), the case was in 
 fact one of two actions, one by a bailable writ and another by 
 attachment, upon the same cause of action between. the same par- 
 ties. The plaintiff could be allowed to go on in both. 
 
 In Mills vs. Block (30 Barbour, 549) a creditor, having an at- 
 tachment regularly issued and property levied, had, it was held, 
 obtained a lien which was as effectual as an injunction to restrain 
 any disposition of the property. ISTo injunction ought, therefore, 
 to be allowed before judgment to restrain a disposition of it. 
 
 In ITaylor vs. Eagar (2 Young & Jarvis, 90), there had been 
 proceedings taken in JSTew South "Wales by process of attachment 
 of goods against the defendant, who was arrested for the same 
 debt in England. The court say, "Had the affidavit proceeded 
 to state that under that attachment, goods of the defendant had 
 been seized sufficient to satisfy the demand of the plaintiff, that 
 would have been a strong case to induce the court to interfere, 
 and to say that he should not be compelled to give a new security 
 in this country for the same debt. But it was incumbent on the 
 defendant to make out that case clearly, which he had not done." 
 
 In Trafton vs. Gardiner (39 Maine Kep. 501) it was ruled that 
 an attachment of property and an arrest of the person could not 
 be directed in the same writ. If the attachment was returned, 
 there could be no arrest, although the attachment proved inef- 
 fectual. 
 
 Time of obtaining warrant. — The plaintiff may have the prop- 
 erty of the defendant attached at the time of issuing the sum- 
 mons, or at any time thereafter. 
 
 By section 228 the warrant must be obtained from a judge of 
 the court in which the action is hrought, or by a county judge. 
 
 A summons may of course be issued before the attachment ; 
 indeed the latter may be applied for at any time during the suit. 
 But the summons must be issued at any rate before the attach- 
 ment cftn be executed. The making it out and delivering it to a 
 person to be served, is a compliance with this requisition. It is 
 not prescribed that the summons shall be served, which is the 
 
416 ATTACHMENT. [§ 22Y, 
 
 regular commeDcement of the action. But where the attorney 
 had made it out, and attempted to have it served before obtain- 
 ing the warrant, it was considered to have been issued. The 
 placing it in the hands of a person with authority to serve it, and 
 a bona fide intent to have it done, was sufficient.' 
 
 Some act indicating not only that the summons is prepared, 
 but is put in a course to be served, should be shown.'' 
 
 It may be doubted whether the rule stated in Perry vs. Mont- 
 gomery (2 Sandf. Supr. Ct. Kep. 661) is correct, that an attach- 
 ment issued before service of a summons, but served with it, was 
 void. If the summons was really issued — prepared before or at 
 the time of the attachment, it would seem to be enough. 
 
 It is stated in one case, " that it has been repeatedly held that 
 the attachment is the commencement of process, although no 
 summons be served. The issuing of a summons is not the com- 
 mencement of an action ; its issuing is not necessary to the va- 
 lidity of the attachment. This also has been repeatedly held in 
 this court. The court acquires jurisdiction from the time the 
 summons is served, or any provisional remedy is allowed. (Code, 
 §139.)" = 
 
 Nothing can be more completely contradictory to this than 
 the language of the court in The matter of Griswold (13 Barb. 
 412). " Under the Code, it is clear that the issuing of the warrant 
 of attachment, or the attaching property under it, is not the com- 
 mencement of the action. It is a mere provisional remedy in an 
 action, which action is commenced by the issuing of a summons, 
 and the service of it in some one of the methods pointed out in 
 the Code. It is difficult to see how it can be a jurisdictional ques- 
 tion, so long as it is a mere proceeding or provisional remedy in 
 an action. The Code, it is true, provides (§ 139) that the court 
 shall be deemed to have acquired jurisdiction from the time of 
 service of the summons, or the allowance of a provisional remedy. 
 Still the action is commenced by the summons, and it is proof of 
 the issuing and service of that which gives the authority to pro- 
 ceed, as in an action, and render judgment, where the defendant 
 does not appear." 
 
 ' Mills vs. Corbett, 8 Howard, 500. 
 
 ' Conklia vs. Dutcher, 5 Howard, 886. 
 
 ' Treadwell vs. Lawler, 15 Howard, p. 8, Gen. Term, First Dist. 
 
§ 22Y.] AITACHMENT. 417 
 
 So, in Cruyt vs. Phillips (16 Howard, 120), Justice Emott 
 says : "An attachment in an action in this court is not process by 
 which an action is commenced, but merely a provisional remedy. 
 In this respect it is like an injunction. It has therefore been held, 
 that the statements in the affidavits on which an attachment has 
 been issued, are not jurisdictional facts. The jurisdiction is con- 
 ferred by the commencement of the suit ; all afterwards is a ques- 
 tion of regularity, or the discreet exercise of power." 
 
 To hold that the last clause of section 139 makes the allow- 
 ance of an attachment sufficient without a summons, issued at 
 least, seems to nullify the operation of the clause, that the plain- 
 tiff may have the property attached at the time of issuing the 
 summons, or at any time thereafter. The 228th section presup- 
 poses an action irought. Perhaps the last clause of section 139 
 is satisfied if applied to cases where the attachment had been 
 allowed and executed, yet the summons, though duly issued at 
 the time, had not been served from accident. The court then 
 would have jurisdiction upon a question connected with the at- 
 tachment. 
 
 In Grould vs. Bryan (3 Bosworth Rep. 626) it was held that 
 the attachment may be issued, and made to accompany the sum- 
 mons into the sheriff's hands, and may be served after the due 
 personal service of the summons has been made ; and when so 
 issued and served it will be regular and valid. The phrase, " in 
 an action for the recovery of money," used in section 227, desig- 
 nates the class of actions in which an attachment may issue, and 
 does not make the actual commencement of a suit by the service 
 of a summons, an essential pre-requisite to the jurisdictional com- 
 petency of the Superior Court to grant an attachment. 
 
 It was also held that an attachment against the property of a 
 non-resident debtor might be issued, as well as an order of arrest 
 be made, before actual service of the summons, but could not be 
 executed until the summons had been served. 
 
 Manner and object. — " The plaintiff may have the property of 
 the defendant or corporation attached, in the manner thereafter 
 prescribed, as a security for the satisfaction of such judgment as 
 the plaintiff may recover." 
 
 The corporation must be a defendant in the action, as much as 
 an individual. 
 
 27 
 
418 ATTACHMENT. [§ 227. 
 
 The manner of attaching is pointed out in subsequent sections, 
 and is hereafter stated. 
 
 What property may be attached is a subject of great impor- 
 tance, and is discussed under the 234:th section, ^os^. 
 
 The property remains in the possession, or under the assumed 
 legal control of the sheriff, as security for the judgment, should 
 the plaintiff succeed in recovering one. The attachment is a spe- 
 cies of sequestration, by which the property is held to abide the 
 event of the action, unless re-delivered under sections 240 and 
 241. 
 
 The mode of disposing of the property, in the event of the 
 plaintiff's or of the defendant's success, is stated under sections 
 237 and 2Z^,post. 
 
 Not a jurisdictional question. — It appears to follow from the 
 doctrine that an attachment is not the process for commencing an 
 action, but an auxiliary remedy in an action, that granting it is 
 not a jurisdictional question, and hence an attachment cannot be 
 questioned collaterally. It has been so repeatedly decided. 
 
 In The matter of Griswold (13 Barbour, 412), before cited, 
 this was expressly held, upon a motion on behalf of a subsequent 
 attaching creditor, to set aside a previous attachment, on the 
 ground of the insufficiency of the affidavit. 
 
 In Morgan vs. Averj (7 Barbour, 656) several points were de- 
 cided, and among them this, that where an attachment has been 
 issued against a person as an absconding debtor, the sufficiency of 
 the affidavits on which it issued, is no longer a jurisdictional ques- 
 tion. Although the learned judge calls it j>rocess, he admits it is 
 not original process, for no suit can be commenced by it. 
 
§§ 228, 229.] ATTACHMENT. 419 
 
 Section SS8. 
 
 " Warrant, hy tvhom granted. 
 
 " A warrant of attachment must be obtained from a judge 
 of the court in which the action is brought, or from a county 
 judge." 
 
 If the court has jurisdiction of the action, a judge of that court 
 may, of course, grant the warrant. It may be useful to notice 
 that the case of Eenard vs. Hargous (2 Duer, 540 ; 3 Kernan, 
 259) arose under the Eevised Statutes, and turned upon the power 
 of the judges of the Superior Court of the City of New York to 
 issue an attachment as Supreme Court Commissioners. 
 
 As an attachment under the Code is a provisional remedy' — ^^a 
 species of sequesti'ation in the action, the court, a judge of which 
 issues it, must have jurisdiction of the action. 
 
 As to the extent of the power of the county judge, see Arrest 
 and Bail, ante, § 180, p. 43. 
 
 Section 329, 
 
 "In what cases warrant may he issued — Affidavits to he 
 
 filed. 
 
 " 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 — 
 
 " 1st. 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 there- 
 in with a like intent, or — 
 
 " 2d. That such 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 ; or has assigned, disposed 
 of, or secreted, or is about to assign, dispose of, or secrete any of 
 
4:20 ATTACHMENT. [§ 229. 
 
 his or its property, with the like intent, whether such defendant 
 be a resident of this State or not. 
 
 " 3d. 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 clause of this section remained unaltered from 1849, 
 the time of its adoption, until 1857. By the act of April 17th of 
 that year, which went into effect on the 7th of May, the addition 
 contained in the subdivision marked 2 was made. On the 18th 
 of April, 1860, the paragraph marked 3 was passed. 
 
 The affidavit must show that a cause of action exists against 
 the defendant, specifying the amount of the claim, and the 
 grounds thereof. 
 
 It has been held in England that the assignees of a bankrupt, 
 executors, and administrators, need only swear to the belief of the 
 debt, this being as certain as the nature of the thing will bear.' 
 
 An affidavit by one of several plaintiffs, in which it was stated 
 that the plaintiffs aver certain facts to be true, is an allegation of 
 the existence of those facts, and an averment of their existence 
 by the plaintiff, who swears to the affidavit. It was equivalent 
 to " the deponent avers." The existence of the facts 'did, there- 
 fore, appear by affidavit.'' 
 
 In Donelly vs. Corbett,' an affidavit " that the demand arose 
 upon a judgment which, deponent has been informed and believes, 
 was obtained in or about the year 1843, by this deponent, &c., 
 in a court, &c., against the said, &c., on a promissory note for 
 $962.12, dated, &c., was lield sufficient. The fact of the judg- 
 ment was considered to be positively alleged. The information 
 and belief referred to the time of its rendition. 
 
 The affidavit upon which the proceeding is authorized should 
 be explicit, and made, in general, upon positive knowledge of the 
 deponent, so far as to establish 2i. prima facie case. 
 
 In general there is no difficulty in obtaining the affidavits of 
 the persons who give the information on which the plaintiff de- 
 sires to proceed ; and when such information cannot be obtained, 
 
 ' Locke on Foreign Attachments, p. 6, and cases in note. 
 
 = Jamison m. Beecher, 4 Abbott, 230. ^ 3 Selden, 600. 
 
§ 229.] ArrACHMENT. 421 
 
 from the peculiar circumstances of the case, those circumstances 
 must be stated, with all the grounds of belief, so as to satisfy 
 the judge that the facts exist on which the attachment is sought, 
 and that the plaintiff has produced the best evidence in his power 
 to establish them.' 
 
 " It is not sufficient to swear that the plaintiff believes that 
 the defendant keeps himself concealed to avoid the service of a 
 summons. Tlie grounds of the belief must be set out, so that the 
 judge who issues the warrant may have such belief, and the court 
 may be able to determine whether it would be well grounded in 
 any one." It is not sufficient to state 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. It should be stated 
 where the inquiry was made, of whom, and when, so that the 
 judge may determine whether the inquiry has indeed been dili- 
 gent and conducted in good faith.^ 
 
 It is true that Mr. Justice Paige, in Furman vs. Walter," in 
 an elaborate opinion, questions this doctrine, and appears to hold 
 that, under the peculiar language of the Code, as it omits the re- 
 quirements of the Revised Statutes, and of the act of 1831, that 
 the facts and circumstances to establish the grounds of the appli- 
 cation should be stated in the affidavits — the positive allegation of 
 the fact (as departure from the State with the intent to defraud 
 creditors) would be enough. 
 
 The learned judge did not make any express decision to this 
 effect, and the weight of authority appears to be otherwise. 
 
 In Gasherie vs. Apple (14 Abbotts' Eep. 64), the defendant 
 moved to discharge an attachment. It appeared that the action 
 was to recover the price of goods sold, and the attachment had 
 issued upon an affidavit stating an intent of defendant to dispose 
 of property with a view to defraud creditors ; a promise to take 
 an account of stock, and to give the plaintiffs security, a refusal, 
 to do so ; and a statement, made the 22d of July, 1861, that if the 
 plaintiffs sued him, he would make an assignment ; that they should 
 not get anything ; and he would do his business under another 
 person's name. After the attachment was levied, the defendant 
 made a general assignment. The expressions stated in the affida- 
 
 ' St. Amand vs. Beixodon, 3 Sandford's S. Cfc. Rep. 703. 
 
 ' Camman vs. Tompkins, 1 Code Eep. N. S. 12. ' 13 Howard's Pr. Rep. 348. 
 
422 ATTACHME*T. [§ 230. 
 
 vit, on the part of the plaintiif, were denied. On the motion, the 
 plaintiff offered corroborating affidavits as to those expressions. 
 
 Mr. Justice Robertson held the affidavits to be admissible, re- 
 lying upon St. Amand vs. Eeixodon (3 Sandf. Sup. Ct. Eep. 703). 
 And after a careful examination, and referring to the cases of 
 "Wilson vs. Britton (26 Barbour, 562) and Dickinson vs. Benham 
 (10 Abbott, 390, 11 ibid. 158), he held, that a threat by a debtor 
 to a creditor, to make an assignment, so as to deprive the latter of 
 all share of his estate if he commenced an action, appeared to be 
 as much evidence of a fraudulent intent in fact, as the actual mak- 
 ing of an assignment with a like provision in it, is of a fraudulent 
 intent in law. 
 
 The threat also to carry on the business in the name of another, 
 could only be understood as intending to conceal the defendant's 
 property or earnings from the plaintiff's claim. 
 
 See, also, Skinner vs. Pettinger, 14 Abbott, 109. 
 
 The affidavit to warrant an attachment, must be positive as to 
 the facts justifying it; or if upon information and belief, the 
 sources of such information must be fully stated.' 
 
 Section 230. 
 
 " Security on obtaining warrant. 
 
 " 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 attaeh- 
 ment he set aside hy 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." 
 
 This section has remained unchanged since 1S51 until 1862, 
 when the words " or the attachment be set aside by the order of 
 the court," were adopted. 
 
 ' St. Amand m. Beixodon, 3 Sandf. S. Ct. Rep. 103 ; Furman m. Walter, 13 How- 
 ard, 348 ; Blason vs. Bruno, 21 Howard, 112. " Amendment of 1862. 
 
§ 230.] ATTACHMENT. 423 
 
 The undertaking may be in the form of a penal bond to the 
 defendant, as the Code has not prescribed the form. The condi- 
 tion of the undertaking should be clearly expressed in the lan- 
 guage of the Code.' 
 
 The undertaking is to be " on the part of the plaintiff, with 
 sufficient surety." Of course, under this, one surety is sufficient. 
 And what is the meaning of the phrase " on the part of the plain- 
 tiff," is examined under section 182. {Ante, p. 49.) 
 
 It should be proven or acknowledged as required by the 6th 
 rule of the Supreme Court of 1858 ; but a defect in this particular 
 can be supplied on a proper application.' 
 
 It must be forthwith filed with the clerk of the proper county, 
 with the approval of the justice endorsed thereon, and if not filed 
 within five days after the order has been granted, an application 
 may be made to vacate the proceedings for irregularity. The 
 affidavits upon which it was granted must be in like manner filed. 
 (Eule 4 of Supreme Court, 1858.) 
 
 It appears to be settled in several States, that an insufficient 
 bond taken on an attachment, can only be objected to by the de- 
 fendant, and cannot be by others, not even by other attaching 
 creditors." 
 
 The undertaking must be filed with the clerk of the court, 
 unless the court expressly provides for a different disposition 
 thereof.* 
 
 It must be acknowledged or proven, in like manner as deeds 
 of real estate, before it can be received or filed." 
 
 The fourth rule of the Supreme Court, adopted in 1858, pro- 
 vides that it shall be the duty of the plaintiff's attorney forth- 
 with to file with the clerk of the proper county all undertakings 
 given upon procuring an order of arrest, an injunction-order, or 
 an attachment ; and in case such undertaking shall not be filed 
 within five days after the order, or attachment, the defendant 
 shall be at liberty to move the court to vacate the proceedings for 
 irregularity, with costs, as if no undertaking had been given. It 
 
 ' Contlin vs. Dutcher, 1 Code Eep. N. S. 49 ; 5 Howard, 886. 
 " CoiLklin vs. Dutcher, ut pipra. 
 
 ^ Wigfall vs. Byrne, 1 Richardson, 412, and other cases cited in Drake on Attach- 
 ment, § 142. * Section 423 of the Code. 
 ' Eules of Supreme Court, Rule 6, of 1858. 
 
424 ATTACHMENT. • [§ 231. 
 
 shall also be his duty to file, within the same time, and under the 
 like penalty, the affidavits upon which an attachment has been 
 granted. 
 
 ' The omission to acknowledge or prove the undertaking can be 
 remedied by amendment on proper terms." 
 
 The undertaking may be amended under the lT3d section of 
 the Code. This was ruled as to an undertaking upon an arrest, 
 in Bellinger vs. Gardner, 2 Abbott, 443, S. C. 12 Howard, 381. 
 
 In Beach vs. Southworth (6 Barbour, 173) the subject of 
 amending the undertakings under the Code was. examined, and 
 the applicability of the Eevised Statutes (2 E. S. 787, §§ 33, 34) 
 was sustained. The case related to appeals ; but the reasoning is 
 pertinent to all undertakings. 
 
 Section 331. 
 
 " Warrant, to whom directed, and what to require. 
 
 " 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 ie sufficient to 
 satisfy the plaintiff''s der)iand, together with all costs and ex- 
 penses / the amount of which must ie stated in conformity with 
 the complaint, together with costs and expenses.''^ 
 
 " Several warrants may be issued at the same time to the 
 shei'iffs of different counties." 
 
 The words italicised were adopted into the Code in July, 
 1851. 
 
 The signature of the judge is all that is necessary. The for- 
 mal teste, seal of the court, and signature of the clerk, are not 
 requisite. jSTo return-day need be inserted, but the signature of 
 the attorney should be affixed." The attachment is a written 
 order of the judge. By section 400 every direction of a court 
 
 ' Conklin vs. Dutcher, 5 Howard, 388. 
 " Genin vs. Tompkins, 12 Barbour, 265. 
 
§ 232.] ATTACHMENT. 425 
 
 or judge made, or entered iu writing, and not included in a judg- 
 ment, is denominated an order.' 
 
 The amount of the demand should be stated in the warrant. 
 That forms a guide to the sheriff as to the amount of property to 
 be taken. The amount in the warrant must correspond with that 
 in the complaint. 
 
 The warrant may be amended. In Cornish vs. Cole,'' an at- 
 tachment was issued, and property taken. The amount was 
 omitted in the warrant. On the succeeding day the amount was 
 inserted by the same judge. The demand in the summons was 
 $2,000. One of the defendants, member of a firm, was served 
 with the summons on the day that the attachment was issued. 
 The affidavit also specified the amount. The case of Genin vs. 
 Tompkins (12 Barbour, 285) was cited, and it was held that the 
 173d section was applicable. 
 
 Appeal. — An appeal may be taken under section 349, from an 
 order granting or refusing, continuing or modifying a provisional 
 remedy. 
 
 Generally, the defendant moves to discharge the attachment, 
 and from the order granting or denying such motion an appeal 
 is taken. 
 
 It is presumed that the warrant itself is a written order of 
 the judge, which may be appealed from, but perhaps it should 
 be entered with the clerk under section 350. 
 
 What property. — What property may be attached is discussed 
 under section 234, post. 
 
 Section 232. 
 
 " Mode of proceeding in executing wm^rant. 
 
 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 attachments 
 against absent debtors. 
 
 2. " He shall make and return an inventory. 
 
 ' CoutliQ vs. Duteher, 5 Howard, 389 ; Bank of Lansingburgh vs. McKee, 7 
 Howard, 360. 
 
 ^ Special Term, Superior Court, Nov. 1854, Hoffman, J. 
 
4:26 ATTACHMENT. [§ 232. 
 
 3. " He shall keep the property seized by him, or the pro- 
 ceeds of such as shall have been sold, to answer any judgment 
 which may be obtained in such action. 
 
 4. " He shall, subject to the direction of the court or judge, 
 collect and receive into his possession, all debts, credits, and 
 effects of the defendant. 
 
 5. " The sheriff may also take such legal proceedings, either in 
 his own name or in the name of such defendant, as may be neces- 
 sary for that purpose, and discontinue the same at such times and 
 on such terms as the court or judge may direct." 
 
 1. Mode of proceeding. — The sheriff is to proceed, in all 
 respects, in the manner required by law in cases of attachment 
 against absent debtors. 
 
 These provisions are found in the Statute 2 K. S., p. 3, § 7, 
 et seq. 
 
 By the 7th section, " 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 accounts, vouchers, 
 and papers relating to the property, debts, credits, and effects of 
 such debtor, together with all evidences of his title to real estate, 
 which he shall keep to be disposed of as hereinafter directed." 
 
 Several important differences must be noted. By the statute, 
 all the property is to be attached ; by the Code, all the property, 
 or so much as will satisfy the plaintiff's demand. By the statute, 
 the subsequent directions provide for an appropriation of the 
 proceeds through Trustees, among all the creditors ; by the Code, 
 it will be applied to the judgment of the applicant. 
 
 An important question ai'ises under this part of the section, 
 whether the attachment is not continuously in force, so that the 
 sheriff may attach other property in the same person's hands, or 
 property in the hands of other persons, down to the time of an 
 execution being executed. 
 
 The rules as to executions, that the lien upon goods not levied 
 upon, expires with the return,' and that when the actual return- 
 
 ■ 'VVatroua vs. Lathrop, 4 Sand. Sup. Ct. Eep. YOO. 
 
§ 232.] ATTACHMENT. 427 
 
 day is spent, the slieriff may not levy, although the writ remains 
 in his hands,' are inapplicable, as no return-day is prescribed for 
 the attachment. 
 
 In general, the rules as to- executions govern in the case of at- 
 tachments ; at least afford an analogous rule. It is settled that 
 the sheriff may levy upon other property at a subsequent time. 
 " There is no restriction upon the officer as to the amount of 
 property he shall take, nor is he required to levy upon the prop- 
 erty at the same time. It would be extremely dangerous to hold, 
 that when the officer has once levied upon sufficient property to 
 satisfy the execution, his power to levy upon more was gone. 
 How is he to know when he has made a sufficient levy ? This 
 cannot be ascertained with certainty until the sale." 
 
 The point was decided that one levy, though of property ap- 
 parently sufficient to pay the judgment, did not preclude a fur- 
 ther levy on other property, no change of title having been 
 effected, nor the debtor deprived of his property." 
 
 The form of an execution is to levy of the goods, &c., enough 
 to satisfy the judgment, and of the attachment, to take the prop- 
 erty, or so much as will satisfy the plaintiff's demand. 
 
 In the ease of Merritt vs. Curtis (18 Maine, 272), it was held 
 that a levj^ under an attachment, of more property than was 
 necessary, did not invalidate the attachment ; although if the 
 sheriff acted oppressively, he might be subject to an action by the 
 party injured. 
 
 And in Abbott vs. Kimball (19 Yermont, 551), it was decided, 
 that in order to sustain an action for an excessive attachment of 
 property, the plaintiff must allege and prove much the same that 
 he would in a suit for a malicious action — that is, want of prob- 
 able cause, and a malicious intent. 
 
 Heal Estate. — By the Revised Statutes, the sheriff was to 
 attach all the real estate. Under the Code, it is, in the first 
 place, necessary, in order to make an attachment valid as against 
 purchasers or incumbrances, that a notice of lis pendens be 
 filed under section 132. It is also decided, that under the Code 
 the sheriff need not enter upon the land. " For the purpose of 
 
 ■ 4 John Rep. 450 ; IS ibid. 255. 
 
 ^ Denvry vs. Fox, 22 Barbour, 522, and the cases therein examined, General Term, 
 8th District; Peck vs. Tiffany, 2 Comstock, 451. 
 
428 ATTACHMENT. [§ 232. 
 
 securing the lien upon it, it is only necessary that it should be 
 included in the inventory returned by the sheriff. The mere re- 
 turn that he has attached the land, is enough to secure a lien for 
 the creditor, to be enforced when he shall have obtained judg- 
 ment." (Harris, Justice, in Learned vs. Vandenbergh, 7 How- 
 ard, 3T9.) 
 
 This case was before the General Term on appeal; and the 
 order was affirmed.' As the real estate had not even been stated 
 in the inventory, and nothing else done showing even a claim 
 upon it, a judgment subsequent to the attachment was let in be- 
 fore it. But it is not clear that the General Term meant to say, 
 that inclusion in an inventory alone would be sufficient. "There 
 must be a seizure, or an exercise of control, or, at least, a claim 
 made to hold it under the attachment." 
 
 In The People vs. Conolly (8 Abbott, 128) it was held that 
 the 132d section applied only to subsequent purchasers and in- 
 cumbrancers ; and where the notice named the parties in the ac- 
 tion, and the attorney insisted upon its being recorded as against 
 others named as prior grantees, a mandamus to the clerk was re- 
 fused. 
 
 2. Inventory. — By section 8 of the Eevised Statutes, the sheriff 
 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 of 
 them as are perishable; which inventory, after being signed by 
 the sheriff and appraisers, shall, within ten days after such seiz- 
 ure, be returned to the officer who issued such warrant. 
 
 3. Seizure and retention of property. — The sheriff to keep the 
 property seized by him, or its proceeds, to answer any judgment. 
 
 In McEay vs. Ilarrower (27 Barbour, 463) the court say : " It 
 was quite clear, that with respect to property seized by the sheriff, 
 by virtue of an attachment under the Code, he must retain it in his 
 possession until the determination of the action in Avhich the at- 
 tachment has issued ; and if the plaintiff recovers judgment, 
 until the property is sold under an execution issued thereon, un- 
 
 ' 8 Howard, 11. 
 
§ 232.] ATTACHMENT. 429 
 
 less the judgment be otherwise satisfied, or the property he sold 
 as perishable." 
 
 The case of Moore vs. Westervelt, cited under section 215 of 
 the Code {ante, p. 130), is of importance under the present section, 
 in relation to the duty of the sheriflf as to the keeping of property 
 once attached, and what will constitute negligence in him, for 
 which he may be made responsible. 
 
 Two important questions arise, which may be considered un- 
 der this clause : first, when the attachment takes effect as to the 
 debtor or garnishee ; next, how are the relations adjusted between 
 various attachments against the same debtor. 
 
 There is some authority to show that, neither the issuing of, 
 nor delivery of, the warrant to the sheriff, has any effect in any 
 particular,' or in relation to any species of property. It is only 
 the actual or constructive levy or seizure, which has the effect of 
 constituting a lien. 
 
 It seems a universal rule in the States in which the system 
 prevails, except when a statute has prescribed otherwise, that the 
 issuing of the attachment has no force, either with reference to 
 the defendant's rights, or those of third persons ; nor its lodg- 
 ment in the hands of the officer ; but its effect is to be dated 
 from the tinie of its actual service.' 
 
 In Kuhlman vs. Orser (5 Duer, 242) it was decided, that as 
 against a purchaser in good faith, no lien was created by the is- 
 suing of the process ; and the goods could only be bound from 
 its execution, by the actual or constructive levy as there de- 
 scribed. The case was resembled to that of a purchaser after exe- 
 cution delivered, and before levy. 
 
 In Eansom vs. Halcott (18 Barbour's Rep. 56) five attach- 
 ments were issued at successive periods in favor of several plain- 
 tiffs. A levy was made under the first on all the personal prop- 
 erty, and an inventory made. The others were levied on the 
 same property as they came to hand. But upon the fifth attach- 
 ment the sheriff levied also on the real estate. The personal 
 property only satisfied the first two attachments, and tlie third in 
 part. The present plaintiffs had issued the fourth attachment. 
 It was held that as to the real estate, the levy under the fifth gave 
 it a preference over the fourth ; and that the sheriff was liable to 
 
 ■ Drake on Attachment, p. 218, and cases. 
 
430 ATTACHMENT. [§ 232. 
 
 the plaintiffs for not levying on their attachment, upon such es- 
 tate. 
 
 The court declared that it was the right of the creditors 
 to have their respective attachments take priority according to 
 the date of their delivery to the sheriff. Yet the act of the 
 sheriff gave the fifth attachment a priority over the fourth. The 
 court must, therefore, mean that the right was a right as between 
 the sheriff and themselves ; and his neglect of his duty made him 
 responsible. 
 
 In Learned and others vs. Yandenbergh (7 Howard, 3^9 ; on 
 appeal, 8 ibid. 77) the rule was stated that an attachment was not 
 a lien on property, either real or personal, until a levy was made 
 under it. 
 
 In the act for proceeding against foreign corporations (2 E. 
 S. 376, §§ 15, 16, 21) the language was, that " the sheriff was to 
 keep the property seised by him, or the proceeds of any sold, to 
 answer any judgment- which may be obtained in such suit." 
 Under this, the case of the American Exchange Bank vs. The 
 Morris Canal Co. (6 Hill, 362) decided, that the lien on real es- 
 tate dated from the time of the seizure. 
 
 The general rule in other States is, that the first attachment 
 served is entitled to priority over subsequent attachments, and 
 that the lien takes effect, as between different plaintiffs, from the 
 time of service.' 
 
 If the writs were delivered at different times, but served to- 
 gether, the court in Massachusetts has held, that the avails were 
 to be distributed according to a rule adjusted upon the number of 
 the writs." 
 
 In other States the division is made^ro rata, in such a case. 
 
 In Learned vs. Yandenbergh (7 Howard's Pr. Eep. 379) Mr. 
 Justice Harris said, that " when several attacliments have been 
 served upon the same property, the priority of lien, he supposed, 
 must be determined by the order in which the attachments were 
 delivered to the sheriff." 
 
 But if no lien is effected until service, and that is simulta- 
 neous, it would seem more just, at least, that the rule of a. pro 
 rata distribution should prevail. 
 
 ' Drake on Attachment, §§ 225, 260, and cases. 
 
 ' Bockwoodws. Varnum, 11 Pick. 289; Drake, § 262, no. 1. 
 
§ 232.] ATTACIIMEIirT. 431 
 
 The statute respecting executions (2 R. S. 365, §§ 13, 14, 15) 
 makes the delivery to the sheriff of a,fi.fa. binding upon personal 
 property, and after providing in the 16th section for the case of 
 several executions, and a sale under a junior one, directs in the 
 15th section, that if there be several attachments, the rule pre- 
 scribed in the 14th section shall prevail, in determining the pref- 
 erence of such attachments. The effect of the 14th section is, 
 that although a sale under a junior execution cannot be dis- 
 turbed, the proceeds are distributed according to the priority of 
 delivery. (2 Comstock, 451.) 
 
 It does not seem clear that attachments under the Revised 
 Statutes against absent debtors, &c., are contemplated by this 
 provision. There was no priority to be obtained. Nor is it ob- 
 vious that these provisions can apply to the wholly new system 
 under the Code, unknown to our law when they were adopted. 
 See Revisers' Notes, vol. 3, p. 727, 2d edit. 
 
 In Patterson vs. Perry, cited post, under this section, the sub- 
 ject was somewhat considered. Mr. Justice Moncrief placed his 
 decision upon the application of these provisions to cases of at- 
 tachment under the Code. Mr. Justice Hoffman observed : " The 
 Revisers, in their note to these provisions (vol. 3, p. 727), state 
 that they are conformable to 4 Cowen, 411. There a,Ji.fa., first 
 delivered to the sheriff, took preference of an attachment levied 
 before the fi. fa. was levied. Lambert vs. Spaulding was relied 
 upon as decisive. The attachment was issued by a justice. 
 
 " Ray vs. Harcourt (19 Wendell, 495) was decided under the 
 16th section of the act. 
 
 " The provisions referred to can scarcely apply to attachments 
 under the Absent and Absconding-debtor Act, found in the Re- 
 vised Statutes of 1830. Those proceedings enured to the equal 
 benefit of all the creditors who might come in. Attachments 
 issued under that act could not be discontinued without an oppor- 
 tunity being given to other creditors to proceed. (In the matter 
 of Bunch, 9 Wendell, 473.) 
 
 " But there was a series of statutes, under which proceedings 
 similar to those under the Code were issued, particularly as to 
 proceedings in Justices' Courts. (See 1 R. L. 1813, p. 393 ; Laws 
 of 1824, ch. 238, §§ 23, 24.) Under these provisions it has been 
 held that the constable, under an attachment, could take any 
 
432 ATTACHMENT. [§ 232. 
 
 goods and chattels wliich could be levied upon by execution. 
 (Handy vs. Dobbin, 12 John. Eep. 220.) The lien executed by 
 an attachment under the act (1 E,. L. 1813, p. 398, § 23), when 
 duly served, was paramount to a subsequent execution or attach- 
 ment. The lien would expire if the creditor did not prosecute 
 his action to judgment and execution with due diligence. (Van 
 Loan vs. Kline, 10 John. Eep. 135 ; Sterling vs. Welcome, 20 
 Wendell, 238.) 
 
 " To attachments of this character, the provisions of th'e Ee- 
 vised Statutes, as to executions, might well apply. 
 
 " But the difficulty exists in understanding how these enact- 
 ments of 1830 can apply to the attachments under the Code, with- 
 out some special provision making them applicable. 
 
 " The 232d section does not meet the case. The mode of pro- 
 ceeding is to be that provided by law. This seems to relate to 
 the sheriff's course of action in executing the process, but scarcely 
 can extend to the settlement of priorities. 
 
 " The 4Ylst section of the Code provides, that the second part 
 of that act shall not affect any existing statutory provisions relat- 
 ing to actions not inconsistent with this act, and in substance ap- 
 plicable to the actions hereby provided." 
 
 " If this section can be deemed pertinent to the question, this 
 difficulty yet remains : If the attachment is ineffectual until ser- 
 vice, by seizure or the notice, and no property is within the 
 county at the delivery, but subsequently is found therein and 
 attached by another writ, how can the delivery give the prefer- 
 
 ence 
 
 2" 
 
 The point was not decided, Mr. Justice Pierpont not passing 
 upon it. 
 
 It appears to be nearly an universal rule in the States in which 
 this process prevails, that neither the issue of an attachment, nor 
 its lodgment with the officer, confers any rights upon the plaintiff 
 in the defendant's property. It is only when the writ is served 
 that, as between plaintiff and defendant, and generally as between 
 different plaintiffs, its lien takes effect." 
 
 ' Drake on Attachment, § 260, citing 6 Mumford, 176, 9 Conn. Rep. 630, 3 B. Mon- 
 roe, 260, 2 Brevard, 80, and other cases ; Fairfield m. Paina, 23 Maine, 498 ; Brain- 
 ard vs. Bushnell, 11 Conn. 16; Shane vs. Dnn, 13 Mass. 629. 
 
§ 232.] ATTACHMENT. 433 
 
 In Kentucky, where several attachments came to the hands of 
 the same oflBcer at different times, it was held that as it was his 
 duty to have executed them in the order of reception, and the 
 court had control of the funds, it would dispose of it according to 
 such legal priorities.' 
 
 See, further, as bearing upon this subject, the discussion under 
 section 235, of the necessity of a specification in the notice, by the 
 officer, of the property to be affected. 
 
 "When the proceediugs are against a foreign corporation, it 
 may be suggested whether the thirtieth section of the act of the 
 proceedings against corporations is not in force (2 E. S. 461, 
 § 30) ; and when several attachments are issued during^ the same 
 term, or vacation, the proceeds are to be divided acccfrding to the 
 amount of the judgments. (See Laws of 1840, eh. 354 ; of 1842, 
 ch. 197 ; 'Laws 1845, ch. 234 ; Laws 1848, ch. 53 ; Code, § 471 ; 
 11 Howard, 186.) 
 
 In the ease of Patterson vs. Perry," a new and interesting 
 question arose. Albert Lewis was a debtor whose property was 
 sought to be attached. On the 6th of April, 1854, a notice of at- 
 tachment was served on one Perry, requiring him to hold prop- 
 erty, or its avails, in his hands, in an action brought by "White, 
 "Warner & "White. Perry was a consignee, and had made advances. 
 At the time of this service he had some goods unsold on hand, but 
 far less than the money due to him from Lewis for his advances. 
 He held also at that time immature notes and acceptances for 
 produce previously sold to an amount exceeding eight thousand 
 dollars — all, however, being insufficient to pay his balance and 
 acceptances. He held also bills of lading, with letters of consign- 
 ment for produce, to an amount which, at invoice prices, and as 
 the sales proved, was sufficient, with the produce and notes on 
 hand, to pay his advances, all subsequent charges, and leave a 
 surplus of over $6,000. The produce comprised in such bills of 
 lading arrived in New York from Ohio, where they were ship- 
 ped, between the 8th of April and the 9th of May, 1854. On the 
 15th of June, 1854, another attachment was served on Perry, at 
 the suit of Mylne & Eeed. Perry filed a complaint in the nature 
 
 ' Kennon vs. FicMin, 6 B. Monroe, 414. 
 
 ' General Term Superior Court, December, 1859, Hoffman, Pierrepont, Moncrief, JJ. 
 
 28 
 
434 ATTACHMENT. [§ 232, 
 
 of an interpleader, and brought the surplus money into court, 
 over six thousand dollars, making the above-named attaching^ 
 creditors, and some other claimants, parties. After the decision 
 at Special Term, all the claimants, except such attaching credit- 
 ors, abandoned their demands, submitting to the judgment against 
 them. 
 
 In each attachment the notice to Perry by the sheriff was of 
 the same general character. In neither was there a specification 
 of the property, nor an inventory made. The point was not raised 
 by any one in the cause. Each of the contesting parties treated 
 the attachments respectively as sufficient to bind what could be 
 bound at the several times in Perry's hands. 
 
 It was intisted, on behalf of the attaching creditors of the 6th 
 of April, that their attachment was as valid as to the bills of 
 lading representing goods in course of transportation, as if the 
 goods were in Perry's hands. That point, if tenable, would have 
 been decisive. But the court was clearly of opinion that, under 
 sections 227, 281, 234, the bills of lading were not property within 
 the county of New York, which the sheriff of such county could 
 attach. The cases of Gran^ vs. Shaw (10 Mass. Kep. 341) and 
 Andrews vs. Ludlow (5 Pickering, 28) were examined in connec- 
 tion with the Massachusetts statutes, and held decisive of the 
 question. It was therefore held, that an attachment upon a bill 
 of lading merely, of goods not in the county, would not be enti- 
 tled to preference over an attachment upon the goods when they 
 arrived. A new notice, after arrival and before the second at- 
 tachment, would indeed be equivalent to an attachment. 
 
 Next, it was held, that Perry's lien extended not only to the 
 actual cash balance due him, but to all his acceptances not yet due ; 
 and the goods could not be taken from him without an advance of 
 the whole amount. The property to the goods on theii- way 
 passed to him for various purposes, such as to recover possession, 
 or damages for injuring them. His right of property extended to 
 all the funds and produce, indiscriminately. Neither Lewis nor 
 any one under him could claim a right to separate any particular 
 parcel and withdraw it from Perry's possession. So, correc- 
 tively, Lewis' right, or remaining interest, extended on the 6th of 
 April to the goods unsold, the notes unpaid, and the goods repre- 
 sented by the bills of lading, in one blended mass ; not more to 
 
§ 232.] ATTACHMENT. 435 
 
 the goods in course of transportation than to those in Perry's hands, 
 or the notes of purchasers in his hands. There was then, at the 
 time of the first attachment, property of Lewis in Perry's hands. 
 Payment by Lewis the next day, or by the attaching creditor, 
 would have subjected it to the attachment absolutely. 
 
 The subsequent transactions amounted in substance to a remit- 
 tance by Lewis to pay his debt. 
 
 The cases of Allen vs. Williams (12 Pick. 297), Anderson vs. 
 Clark (2 Bingham, 20), Haillie vs. South (1 Bos. & Pull. 513), 
 Byans vs. Mix (4 Meeson & Welsby, 792), and Brownell vs. Cam- 
 ley (3 Duer, 9), were cited, and it was observed that, from the 
 ■principles they appeared to involve, it seemed more accurate to 
 say, that the right of a consignee in advance for his consignor to 
 property on hand, or to a bill of lading, was a qualified property 
 commensurate with his lien, and in support of it, and no more ; 
 that strictly, and in precision of legal language, the consignor was 
 the owner. The consignee had a special property, adequate for 
 various purposes of action and otherwise, but no more. It was a 
 right to take and retain the property of another, to answer a de- 
 mand. (1 Howard U. S. Eep. 712.) 
 
 On these views, the attachment of April 6, 1854, was held en- 
 titled to the preference. 
 
 4. Collection and suits. — The clauses of this section, marked 4 
 and 5, ante, are substantially re-enactments of the amendments to 
 the former act, adopted in 1840, ch. 354, § 1. 
 
 In Orser vs. Grossman (11 Howard, 520), the sheriff sued 
 Grossman to recover a debt alleged to be owing by him to "W. 
 Kobinson, E. Kobinson, and "W. Barney. The latter were defend- 
 ants in a suit in which an attachment had been issued, the plain- 
 tiffs being J. & W. H. Martin. Grossman defended, on the 
 ground that he had never been served with the attachment and 
 notice. The notice was, that he attached all the property which 
 was, or might be, in Grossman's hands, without any description 
 of such property or debt, or the amount. The notice had been 
 left with a man in the defendant's store, and no proof given of its 
 coming to his knowledge. 
 
 It was held to be questionable, whether a general notice that 
 the sheriff attaches all property in the hands of the debtor of the 
 defendant, in the attachment, is a sufllcient attachment under 
 
436 ATTACHMENT. [§ 233. 
 
 the Code. But it was clearly held that the service was had. 
 Nothing warranted a service on an agent or clerk. 
 
 Willett m. The Equitable Insurance Company (10 Abbott, 
 197) was a case of a suit by the sheriff, to reduce a debt to pos- 
 session, which he had attached. 
 
 It is held with much strictness in some other States, that the 
 attachment must be executed by the taking of the articles into 
 the actual possession of the officer, or under his exclusive control. 
 By actual custody and exclusive control is not meant, that an 
 officer must touch and remove every article before the attach- 
 ment can be deemed valid, but that the articles must be so within 
 his power as to enable him to touch or remove them (Oderme vs. 
 Cilley, 2 N. Hamp. Kep. 66 ; Tainter vs. "Williams, 7 Conn. 
 Eep. 271). 
 
 Section 233. 
 
 Claims by third persons. 
 
 '■'■Proceedings in case of perishable property or vessels: 
 
 1. " If any property so seized shall be perishable ; or, 
 
 2. " If any part of it be claimed by any other person than 
 such defendant ; or, 
 
 ' 3. " 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 attachments against absent debtors." 
 
 1. Perishable property— sale. — As to perishable property, the 
 provision of the statute is found in the ninth section (2 R. S. 4, 
 §9), and is as follows : — " If any of the property so seized, other 
 than vessels, be perishable, the sheriff shall sell the same at pub- 
 lic auction, under an order of the officer who issued the warrant, 
 and shall retain in his hands the proceeds of such sale, after de- 
 ducting his expenses to be allowed by such officer, which pro- 
 ceeds shall be disposed of in the same manner as the property so 
 sold would have been if it had remained unsold." 
 
 Vessels — sale. — If no claim be made on behalf of the owners 
 of a foreign or domestic vessel ' in thirty days after seizure upon 
 
 ' As to which, see next subdiTision. 
 
§ 233.] ATTACHMKUT. 437 
 
 attachment, the vessel, or any share thereof attached, may be sold 
 under an order to be made by the attaching officer, and upon the 
 application of an attaching creditor, or of an owner or his 
 agent.' 
 
 Whenever a sale of any perishable property or of any vessel, 
 o.r 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. 
 
 2. Vessels — claim of other persons. — " When a vessel belong- 
 ing 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 application, within thirty days thereafter, of any person 
 claiming such vessel or share, or of his agent, the officer who 
 issued the warrant may cause the vessel or share so seized to be 
 valued by three indifferent men, to be appointed by such officer." 
 (2 E. S. 5, § 13.) 
 
 " 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 the 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 seiz- 
 ure ; 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 amy trustee who may he appointed on such attachmenf], 
 or if none be appointed, or such attachment be discharged, to 
 such debtor, or his personal representatives." (Ibid., § 16.) 
 
 The clause italicized and between brackets is inapplicable 
 under the Code. It may be suggested whether the substituted 
 bond should not be to pay to the sheriff, his successors or assigns. 
 He seems to have the legal title in and right of possession to the 
 vessel, or proceeds, or the right in a bond, until the warrant is 
 fully executed or discharged under section 242. He seems, 
 under the Code, to stand in the place of the Trustees under the 
 act. 
 
 " Upon such bond being executed and delivered to such offi- 
 cer, he shall order the vessel or share so seized to be discharged 
 
 ^ 2 B. S. 1, §§ 26, 27 ; see Ready vs. Steward, 1 Code Bep. N. S. 300. 
 
438 
 
 ATTACHMENT. [§ 233. 
 
 from the attachment, and the sheriff shall discharge such vessel 
 or share accordingly." (2 K. S. 5, § 15.) 
 
 By section 16, the trustees, if appointed under the act, shall 
 immediately commence an action on the bond ; if none be ap- 
 pointed, or the attachment be discharged, the debtor may do so ; 
 and, by section 17, the claimant may give in evidence, in bar of. a 
 recovery, that he was the owner of the vessel or share seized at 
 the time of issuing such warrant. If he fail to establish such 
 ownership, or if judgment shall pass against him by default or on 
 demurrer, the party prosecuting such suit shall recover the 
 amount of the valuation of the vessel or share, with interest from 
 the date of the bond, to be assessed as damages. 
 
 There is also a series of provisions respecting foreign vessels, 
 which it is not deemed necessary to state. 
 
 3, Claim by other parties. — " If any goods or effects seized as 
 the property of the debtors, other than vessels, shall be claimed by 
 or on behalf of any other person as his property, the 'sheriff shall 
 summon and swear a jury to try the validity of such claim in the 
 same manner and with like effect as in cases of seizure under exe- 
 cution." (2 E. S. 4, § 10 ; 1 E. S. 167, 2d ed.) 
 
 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. 
 (2 E. S. 4, § 11.) 
 
 In The People ex rel. Kellogg vs. Schuyler (4 Comstoek, 173), 
 overruling the decision in 5th Barbour, 168, a sheriff, acting under 
 an attachment, had seized the goods claimed by a third party, 
 and detained the same, on being indemnified ; and a jury called 
 upon the claim, found in favor of the claimant. It was held, 
 that the sheriff and his sureties could be sued upon his official 
 bond, after an execution in a suit of trespass against him had 
 been returned unsatisfied. 
 
 If the property in such goods be found to be in the claimant, 
 the costs and charges arising from such inquisition, to be allowed 
 by the officer issuing the warrant, shall be paid by the attaching 
 
§ 233.] ATTACHMENT. 439 
 
 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. (2 E. S. 4, § 12), as amended by act of 1841, 
 ch. 297. • 
 
 If the garnishee himself claims the property it is not, I 
 believe, settled what is the proper course of proceeding. It 
 may be that an inquisition may be had under the provision of 
 the Revised Statutes cited. It may also be that, upon his exam- 
 ination under section 236, the court may decide the matter in a 
 plain case, or make an order of reference under section 271, sub. 
 3. Of course, vfherever the property has been actually seized by 
 the officer, and taken out of possession, the ordinary remedy by 
 action against him may be had. 
 
 In Pennsylvania, there is a scire facias issued to the garnishee 
 after execution, to which he may plead nulla hona. (Sergeant 
 on Attachments, p. 22.) 
 
 In Maryland, he appears on the return of the warrant, and 
 may plead what the defendant could plead, as well as nulla 
 hona.^ 
 
 "When the property is claimed by another person who has 
 possession, the sheriff may require indemnity from the applicant 
 before seizing the goods ; and he may sustain an action upon the 
 bond given him for any costs he has b^n put to in defending an 
 action brought against him by the claimant." 
 
 Defence of a fraudulent transfer. — It was made the subject of 
 two contradictory decisions, whether the sheriff who has taken 
 property under an attachment which is claimed by an assignee, 
 may set up fraud in such assignment. 
 
 In Hall vs. Stryker (9 Abbotts' Eep. 342 ; 29 Barbour, 105), 
 the Supreme Court in the second district held, that the sheriff 
 could not set up such a defence where the transfer and delivery 
 of the goods, under a bill of sale, had been consummated before 
 the warrant issued. He was not at liberty to question its hona 
 fides. 
 
 In Thayer vs. Willett (9 Abbott, 325 ; S. C. 5 Bosworth, 344), 
 
 ' Wever vs. Baltzell <St DaTison, 6 Gill &, Johnson, 335 ; Stone vs. Magruder, <fec., 3 
 Harris & McHenry, 552. 
 
 ^ Chamberlain vs. Bellers, 18 N. Y. Eep. 116. 
 
440 
 
 ATTACHMENT. [§ 234.- 
 
 the Superior Court of New York held a contrary doctrine. 
 The attachment in that case was on the ground of an assign- 
 ment or disposition of property with a view to defraud creditors.. 
 But the reasoning and principles, perhaps, tend to prove that it 
 would make no difference on what ground the attachment was 
 obtained. It is the legal lien which creates th'e right to impeach 
 the transfer. 
 
 Section 234. 
 
 ^'■Interest in corporations or associations [md property] 
 liable to attaclvment. 
 
 " The rights or shares which such defendant may have in the 
 stock of any association or corporation, together with the interests 
 and profit 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 unaltered since 1849., 
 
 It may be stated, as a rule, that all property which is subject 
 to execution may be taljen on an attachment ; but we see that 
 shares or rights in stocks of companies may be attached, which 
 cannot be reached by an execution. (2 K. S. 366.) 
 
 In Coddington vs. Gilbert (5 Duer's Eep. 74, affirmed 17 
 N. Y. Rep. 489), the action was brought against the defendants 
 for willfully withholding from the sheriff certain bonds of the 
 Maysville and Lexington Company. The bonds had been de- 
 livered to an agent of the defendants, in New York, for the pur- 
 poses of sale, to repay themselves $60,000, advanced for the 
 company. The plaintiff sued the company, procured an attach- 
 ment to be issued against it, and the officer served it upon the 
 defendants. After this, the company paid the defendants the 
 amount of their advance, and the bonds were re-delivered. 
 These bonds, it was held, were in no sense property of the com- 
 pany, liable to be seized on attachment or execution. If they 
 had been the notes or bonds of an individual, intrusted to his 
 agent for a similar purpose, no such experiment would probably 
 have been tried. They were no more liable to be seized in conse- 
 
§ 234.] ATTACHMENT. 441 
 
 quence of being made by a railroad company or other cor- 
 poration. 
 
 The term, property, is defined by the Code (§ 464) to include 
 property real and personal. Eeal property " is co-extensive with 
 lands, tenements, and hereditaments (§ 462) ; and personal prop- 
 erty " includes money, goods, chattels, things in action, and evi- 
 dences of debt. (§ 463.) 
 
 Property in hands of a factor, &c. — If the property is in the hands 
 of a factor or other person entitled to a lien upon it, no creditor 
 can attach it, or the produce of it, without discharging the lien. 
 They who attach cannot have a larger right to it than the party 
 whose property it is alleged to be, possesses.' 
 
 In Brownell vs. Carnley (3 Duer, 9), it was held that, although 
 the remaining interest of a consignor in goods in the hands of a 
 factor who had made advances may be attached by the notice 
 under section 235, yet the goods themselves could not be seized ; 
 and, if the sheriff took them, he was a trespasser, and an action 
 would lie against him. 
 
 This decision, I apprehend, qualifies the proposition in Giles 
 vs. Nathan, before cited. The attachment affects the remaining 
 interest without payment of the lien. The goods cannot be 
 taken without discharging it. 
 
 Partnership, or joint property. — The.point, whether partnership 
 property can be taken upon an attachment against one of the 
 partners for his own debt, has been differently decided in various 
 cases. They are examined in the late ease of GoU vs. Hinton (8 
 Abbotts' Eep. 120) ; and the General Term of the First District 
 held, that the goods of the firm may be taken, and an order of 
 restoration was vacated. An attachment as regards chattels, dif- 
 fers in nowise from an execution as to the rights and duties of 
 the officer in relation to the seizing of property. Upon an exe- 
 cution, the goods of a firm could be taken (Scrughan vs. Carter, 
 12 "Wendell, 127), and the analogy must prevail. Yet it deserves 
 consideration that the execution goes against joint property by 
 force of a positive statute. 
 
 Debt not due. — When a debt is acknowledged to exist, but 
 the time of payment has not arrived, the settled English rule ap- 
 
 ' Giles vs. Nathans, 5 Taunton, 558. 
 
442 ATTACHMENT. [§ 234. 
 
 pears to be, to permit the creditor to attach the bond, bill, or 
 note, and judgment may be had against the garnishee for the 
 amount, but execution cannot be awarded until the debt becomes 
 due.' 
 
 Contingent debt.— In the Baltimore and Ohio E'ailroad Co. 
 vs. Gallashue (14 Grattan, 403), under the Virginia statute, 
 wages for work done was, by contract, made payable on the 
 twentieth of each month, yet could be forfeited for several causes. 
 An attachment on the 14th of a month was not available, for the 
 debt would not become absolute until the 20th. 
 
 See, also, Baltimore and Ohio Railroad Co. vs. McCuUough. 
 (12 Grattan, 595.) 
 
 In Bates vs. The New Orleans Railroad Co. (4 Abbott, 72), a 
 , foreign corporation contracted with a manufacturer for ar- 
 ticles to be delivered at New Orleans, the corporation to pay the 
 cost of transportation. The articles were made within the State, 
 and delivered to an express company, to be carried to New Or- 
 leans. Held that the goods could not be attached as the property 
 of the company djiring their transit. There was no title acquired 
 until delivery and payment. It was but a contract of sale. 
 
 There was also a claim of the following nature : The defend- 
 ants had sold certain State bonds to Hoge & Co., under an agree- 
 ment that, if they produced over a certain sum, the surplus should 
 be paid to the defendants. It was held that, even while the con- 
 tingency lasted, it was not a debt which could be made the sub- 
 ject of an attachment. 
 
 Besides, contracts and debts were to be treated as having no 
 siPus or locality, but as following the person of the creditor, who 
 was out of the State. 
 
 A debt due by a foreign corporation, which had no agency in 
 this State, to a person a non-resident of this State, cannot be at- 
 tached in an action by a third person against such non-resident." 
 
 By the law of 1849 (chap. 107), a suit may be brought against 
 a foreign insurance company upon any contract made or de- 
 livered within this State. In Burns vs. The Provincial Insurance 
 
 ' Locke on Attachment, p. 28 and cases, especially Kobins vs. Robins, 1 Siderfin, 
 327. See, also, Stewart vs. West, 1 Harris & Johnson, 636. 
 
 ' Willett vs. The Eq. Ins. Co., 10 Abbott, 193, cited ante, p. 436. 
 
§ 236.] ATTACHMENT. 443 
 
 Company, an insurance company located in Canada, it was held 
 that, although the ease was not within the strict reading of section 
 427 of the Code, the Act of 1849 would sustain an attachment 
 issued in such an action. 
 
 Section 335. 
 
 " Attacliment, Tiow executed on property incapable of man- 
 ual delivery. 
 
 " The execution of the attachment upon any such rights, 
 shares, or any debts, or other property incapable of manual de- 
 livery 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 man- 
 aging agent thereof, or with the debtor or individual holding 
 such property, with a notice showing the property levied on." 
 
 This has remained without change since 1849. 
 
 The goods of a debtor are no more bound by an attachment 
 under the Code, before its actual service, so as to defeat the title 
 of a purchaser in good faith, than as against such a purchaser 
 they are bound by an execution before an actual levy. (5 Duer, 
 250.) 
 
 Where goods were in the custom-house with the duties un- 
 paid, the sheriff cannot require a manual delivery ; but a notice 
 showing the property levied on, and a certified copy of the war- 
 rant served upon the collector, and the consignees of the goods, 
 would be sufiicient. (Rukman vs. Orser, 5 Duer, 242 ; Brownel 
 vs. Carnley, 3 Duer, 9.) 
 
 The attachment against a consignee cannot be executed in 
 any other manner, when he has a title by the bill of lading or 
 otherwise, and a lien for advances. The goods themselves can- 
 not be taken from him. 
 
 The notice which is to be served with the warrant must par- 
 ticularly describe the property, so as to enable the party holding 
 to identify it, and to deliver it or its proceeds to the officer, when 
 released from his own claim. 
 
444 ATTACHMENT. [§ 235. 
 
 It must be as definite as, and correspond with, the inventory 
 which the sheriff is directed to make. (Eukman vs. Orser, 5 
 Duer, 242.) 
 
 An attachment of a debt owing by a party is not properly 
 served, by leaving a copy of the warrant and a notice, at the 
 place of business of the alleged debtor, with a third person found 
 there. There should be personal service upon him of a copy of 
 the warrant, and a notice. (Orser vs. Grossman, 4 E. D. Smith, 
 443.) 
 
 In Eussell vs. Euchman (3 E. D. Smith, 419) an action was 
 brought upon a promissory note made by the defendant and an- 
 other person, in favor of the plaintiff. During the suit, which 
 was in the Marine Court, the defendant assigned a claim which 
 he had against the plaintiff to one Drury, who sued upon such 
 claim in the Supreme Court, and issued an attachment against 
 the plaintiff as a non-resident. The sheriff demanded the note of 
 the plaintiff's attorney, and, on refusal to deliver it, gave him 
 written notice of the attachment and demand. The defendant in 
 the Marine Court set up,' in a supplemental answer, the attach- 
 ment and notice, as a defence. 
 
 , It was held " that the proceedings of the sheriff constituted a 
 valid levy. The copy of the warrant and notice, showing the 
 property levied upon, was suflBeient. It was not necessary, in 
 cases of notes or other evidences of debt, that there should be act- 
 ual possession by the sheriff. 
 
 " The proceedings of attachment could not be pleaded as a bar 
 to the action. The action was not defeated by the levy. Pay- 
 ment to the sheriff of the amount of the note, might have been 
 available." 
 
 It seems to be an opinion that an attachment served fixes it- 
 self upon any property which may be in the party's hands, al- 
 though no specification of it is made, or any notice enumerating 
 it is given. 
 
 The notice used by the sheriff of the county of New York is 
 to the effect that he attaches all property of the said A. B. in the 
 hands of the party on whom it is served, or which may thereafter 
 come to his hands. 
 
 In Lyman vs. Cartwright (3 E. D. Smith, 117) much doubt 
 was expressed whether, when property incapable of manual de- 
 
§ 235.] ATTAOHMEITT. 445 
 
 livery is attacjied, the mere service of a copy of the ■warrant, 
 ■without making and returning an inventory under section 232, 
 and -without the notice prescribed by section 235, -was sufficient. 
 
 In Orser vs. Grossman (11 Ho^ward, 520 ; 4 E. D. Smith, 
 443) this doubt is again expressed, and the sections of the Code 
 referred to. 
 
 In Eukman vs. Orser, before cited, the necessity of the speci- 
 fication ■was distinctly ruled. 
 
 Many provisions of the Code do undoubtedly appear to con- 
 template specific property to be fastened upon by the attachment, 
 and nothing else. 
 
 The 231st section declares the requisition upon the sheriff to 
 be, that he shall attach and safely keep all the property of the 
 defendant -within his county, or so much as shall be sufficient to 
 pay the demand. By section 232 he is to make and return an 
 inventory. The 233d section speaks of the property seized being 
 perishable. And after thus indicating actual possession of what 
 is tangible, the 235th section provides for a service in other cases, 
 by leaving a copy of the warrant, with a notice showing the . 
 property levied on. Thus a specification, and possession actual 
 or constructive, seems in all cases contemplated. If this view is 
 correct, it then seems difficult to imagine of what effect the clause 
 introduced into the notice by the sheriff of New York can be. 
 That the warrant remaining in the officer's hands, will justify 
 fresh notices when fresh property is discovered, was before sug- 
 gested, and seems a sound proposition ; but it would appear that 
 otherwise other property would remain subject to the debtor's 
 disposition, and unaffected by the warrant. 
 
 In several of ,the other States the attachment by express pro- 
 vision operated to bind property subsequently coming to the 
 garnishee's hands. 
 
 This is the law in Pennsylvania, in the case of domestic at- 
 tachments, which do inure to the benefit of all the creditors. All 
 the estate attached, or afterwards discovered by the trustees, 
 vests in them.' 
 
 And under this, the important case of Jackson vs. The Bank 
 of the United States (10 Penn. State Rep. 61) settled, that where 
 
 ■ Duolop's Ed. Laws, p. 740—746. 
 
446 ATTACHMENT. [§ 236. 
 
 the bank had been summoned as garnishee, and the debtor then 
 "deposited monies in it to his own credit, which he subsequently 
 drew out, the bank was responsible. And this, although the jury 
 found that he deposited the funds as agent merely, and they all 
 belonged to other persons. 
 
 The usual course of proceeding in the Lord Mayor's Court of 
 London is fully set forth in McDaniel vs. Hughes (3 East's Eep. 
 306). The plea put in by the garnishee to what is termed a 
 warning to appear and show cause, was that he, at the time of 
 making the attachment, or at any time since, had not owed to, or 
 detained from, the defendants in the said attachment suit the 
 sum attached, or any part thereof. Execution was had of the 
 amount attached. 
 
 The defendants in that action were plaintiffs in the present, 
 and sued the garnishee. Among other points one was taken, 
 that the garnishee had not, in fact, received the plaintiffs' money 
 when the attachment issued. An authority was cited, but Law- 
 rence, Justice, said that was contradicted by Savage's case (1 
 Salkeld, 291). The Common Sergeant, as amicus curiae, stated 
 that it was common practice, if property came into the gar- 
 nishee's hands before plea pleaded, it was liable to be attached. 
 
 The Privilegia Londini was cited, which is very express to 
 the point. 
 
 The court in the course of the argument intimated much doubt 
 upon the question, and in the judgment declare that on that rec- 
 ord it was unnecessary to pass upon it. 
 
 It would seem wholly inconsistent with the rule before stated 
 as prevalent in several other States, of the absolute necessity of 
 a possession or exclusive control by the oflScer to give validity to 
 an attachment, that this should be sufficient, see ante, § 232. 
 
 Section 236. 
 
 '■'■Certificate of defendcmis interest to he furnished hy cm'po- 
 
 rations. 
 
 " Whenever the sheriff shall, with a warrant of attachment, or 
 execution against the defendant, apply to such officer, debtor, or 
 
§ 236.] ATTACHMENT. 447 
 
 individual, for the purpose of attaching or levying upon sucK 
 property, such' officer, debtor, 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 thereon, 
 or the amount and description of the property held by such asso- 
 ciation, corporation, or individual, for the benefit of, or debt ow- 
 ing 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 
 orders may be enforced by attachment." 
 
 This section has remained unaltered since its enactment in 
 1849. 
 
 This provision appears intended to cover the cases, and pro- 
 vide the mode in which the party in whose hands property is 
 attached may appear and set up any defence to the claim upon 
 the property supposed to be in his possession. • 
 
 Under the English attachment law, the garnishee, as he is 
 termed, is brought in by a summons, and may appear and plead 
 specially that the court has no jurisdiction of the subject, or 
 that he has nothing of the defendant's in his hands, or other spe- 
 cial matter.' 
 
 In Maryland, the course is, that the garnishee may be required 
 to answer, upon oath, written interrogations touching the property 
 of the defendant in his possession or charge. A jvidge grants a 
 warrant to the clerk to issue the attachment. This is accom- 
 panied with a capias for the defendant, and a declaration or short 
 note of the cause of action delivered to the sherifi", and which he 
 is to put up on the court-house door. On the return of the at- 
 tachment the garnishee may appear and show cause why the 
 goods should not be held. He may plead whatever the defendant 
 could plead, and also that he has no goods. 
 
 Non assumpsit and nulla iona were plead in the c^es of 
 Becltzell vs. Dawson (6 Gill & John. 335) and Stone vs. Magru- 
 der (10 ibid. 383). 
 
 ' 17 Queen's Bench Rep. 187, 202, 213. 
 
448 ATTACHMENT. [§ 236. 
 
 In Pennsylvania, the system was adopted at an early day, in 
 analogy to the custom of London. The attachment was served 
 upon the garnishee, and the plaintiff may, if he think fit, file in- 
 terrogatories for his examination touching the property in his 
 hands. But here, it seems, the proceedings as to him cease, until 
 judgment against the debtor. Then a scire facias issues, com- 
 manding the garnishee to appear and show cause why the plain- 
 tiff should not have execution against him of the property 
 attached in his hands. (Sergeant Law of Attachment, pp. 22, 96.) 
 The garnishee might plead nulla hona, a prior attachment, &c. 
 
 The present statute was passed in 1836,' and, with many 
 changes, retains the practice of summoning persons indebted, and 
 examining them. 
 
 In Hoagland vs. Stodell (1 Code Eep., IST. S. 210) the sheriff 
 served an attachment on K., alleged to be a debtor of the defend- 
 ant, and demanded a certificate. He certified having in his hands 
 $75, and the plaintiff obtained an order for his examination. The 
 order was held to be invalid ; it could not be allowed when a cer- 
 tificate had been given. The remedy was by action. 
 
 In Carroll vs. Finley (26 Barbour, 61) the parties upon whom 
 an attachment was served gave a certificate to the sheriff that 
 they had no property of the defendant in their hands. An order 
 was made at Special Term vacating an order for the examination 
 of the parties. On appeal, it was held that the order was right. 
 But the majority of the court held that the plaintiff might im- 
 peach the verity of the certificate. He might establish to the 
 satisfaction of the judge, by the former admissions of the party, 
 that the certificate was untrue. This might be regarded as a re- 
 fusal to give the certificate. Judge Mitchell said : " There must 
 be proof of the party being a debtor to the defendant, or having 
 property of his. Of this there was not proof when a party certi- 
 fies he has nothing, and this is met only by information and belief 
 that he has." 
 
 The same learned judge held, in Hopkins vs. Snow (4 Abbott, 
 368), that a certificate furnished under this section, stating the 
 amount and description of property possessed, was conclusive, 
 and no examination could be allowed. But when the certificate 
 
 ' Dunlop'a Ed. of the Laws, pp. HO, 746, 757. 
 
§ 236.] ATTACHMENT. 449 
 
 was, that he held no property, and an aiSdavit was produced of a 
 previous admission of having held such property, the order for 
 his examination was made. 
 
 The powers which are given to the sheriff to collect all debts 
 and effects, and to take all legal proceedings necessary for such 
 purpose under section 232, and the authority to the plaintiff in 
 section 238, prove that the plaintiff has other and effectual modes 
 of proceeding besides that under this provision. Hence it was 
 stated by Justice Mitchell, in Hopkins vs. Snow,' that the course 
 of such an examination must be governed by the same rules as an 
 examination of third persons upon supplementary proceedings. 
 (§ 294.) Its office is only to ascertain what the third person ad- 
 mits belongs to the judgment debtor.^ 
 
 It would seem that the Legislature, in this provision, had in 
 mind the provisions of the statute of February 21, 1848, chapter 
 53, and the act of April 11, 1842, which it amends, relating to a 
 certificate to be given by the officer of a foreign corporation. The 
 second section of that act of 1848 adopts the course of proceeding 
 under the 12th, 13th, 14th, 15th, and 16th sections of the Eevised 
 Statutes (Art. 8, Title 1, Ch. 5, Part 2, 2 E. S. 43, 44) relating to 
 the mode of examining non-resident debtors, or persons indebted 
 to non-resident debtors, or having property of such debtors. Those 
 sections contain nothing warranting any inquiry by witnesses or 
 otherwise, other than the mere examination of the alleged debtor. 
 Certainly, however, they permit the most minute interrogation 
 " touching the indebtedness to the debtor " (§ 13) ; and section 19 
 compares the inquiry to a bill of discovery in chancery. 
 
 It may be observed, that if the court is at liberty in any case 
 to order an examination after a certificate of no property, it is dif- 
 ficult to see why it may not equally do so, to question the truth 
 of a certificate as to the possession of a given amount of prop- 
 erty. 
 
 In the case of Beebee vs. Eogers,' a party upon whom notice 
 of an attachment was served on the 26th of October, gave a cer- 
 tificate that he had no property of the debtor, dated that day..- An 
 affidavit was made of his having admitted, on the 21st of October, 
 
 ' Ut supra. " 12 Howard, 139 ; ibid. 459 ; 1 Code Rep. N. S. 11. 
 
 ^ Special Term Superior Court, Nov. 3, 1859. 
 29 
 
450 ATTACHMENT. [§ 237. 
 
 that he had purchased goods of the defendant and owed him for 
 them. The order to examine him was granted. 
 
 In Schieb W.Baldwin (13 Abbotts' Eep. 469) it was ruled, 
 that a party was not bound to give a certificate, unless he was 
 apprised by the sheriff that he had an attachment against the 
 defendant. 
 
 It was also held, in the same case, that an attachment could 
 not be served, and the certificate demanded, after judgment in the 
 action. 
 
 Section 337. 
 
 " Judgment^ how satisfied. 
 
 " In case judgment be entered for the 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 proceeds 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 execution, so much of the attached property, real or person- 
 al, except as provided in subdivision four of this section, as may 
 be necessary to satisfy the balance, if enough for that purpose 
 shall retaain in his hands ; and in case of the sale of any rights 
 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. 
 
 " 3. If any of the attached property belonging to the defend- 
 ant shall have passed out of the hands of the sheriff without 
 having been sold or converted into money, such sheriff shall re- 
 possess himself of the same, and for that purpose shall have all 
 the authority which he had to seize the same under the attach- 
 ment ; and any person who shall willfully conceal or withhold 
 
§ 237.] ATTACHMENT. 4S1 
 
 such property from the sheriff shall be liable to double damages, 
 at the suit of the party injured. 
 
 "A. 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 un- 
 der the warrant of attachment, and to prosecute any bond he may 
 have taken in the course of such proceedings, and apply the pro- 
 ceeds 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, accompanied by an affidavit setting forth fully all the 
 proceedings which have been had by the sheriff since the service 
 of the attachment, the property attached, and the disposition 
 thereof, and also the affidavit of the sheriff that he has used dili- 
 gence 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. No- 
 tice of such application shall be given to the defendant or his at- 
 torney, if the defendant shall have appeared in the action. In 
 case the summons has not been personally served on the defend- 
 ant, 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 proceedings 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." 
 
 In 1849, the section was enacted as it now stands, with the 
 exception of the clause now made part of the fourth subdivision, 
 beginning with the words " at the expiration of," and ending 
 with the words " deemed just." This clause was adopted by the 
 amendment which went into effect May 6, 1859. 
 
 In McKay vs. Harrower (27 Barbour,_463) it was held that, if 
 the sheriff had the goods when an execution was delivered to 
 him, 'it was all that the plaintiff could require. The sheriff was 
 then to proceed and sell on the execution. If he had ceased to 
 •be sheriff when the execution was issued, it should yet be di- 
 
 ' Amendment of April 16, 1859. Laws, p. 968. 
 
4:52 ATTACHMENT. [§ 238. 
 
 rected to him, and not to his successor. It would be special, re- 
 citing the attachment, the taking of the property, and directing 
 him to sell the property of the defendant generally. He cannot 
 be placed in default until such execution is put into his hands. 
 He is not required to deliver the property to his successor. (2 K. 
 S. 438, § 69, subd. 5.) 
 
 In McBride vs. The Farmers' Branch Bank (T Abbotts' Kep. 
 347) an attachment was levied upon moneys in The Ohio Life 
 and Trust Company, where it remained until the company failed. 
 It was decided that the money was not at the risk of the creditor. 
 The defendants could have given security and discharged the at- 
 tachment, or could have applied to the court equally with the 
 plaintiffs for an order directing the sheriff to collect the debts 
 attached by him. The debt was lost by a delay caused by their 
 own unavailing defence. 
 
 Section 238. 
 
 " When action to recover notes, (&c., of defendant, may he 
 prosecuted hy plaintiff in the action in which the attach- 
 ment issued. 
 
 " 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 indem- 
 nify 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 tlie 
 sheriff, justify by making an affidavit that each is a householder, 
 and worth double the amount of the penalty of the bond, over 
 and above all demands and liabilities." 
 
 This section, adopted in 1849, has remained unaltered since. 
 
 It is presumed that such an action may be prosecuted in the 
 name of the plaintiff, as the real party in interest, and it would 
 seem advisable to state in the complaint, the suit, attachmenty 
 and proceedings under it, with the giving of the undertaking. 
 
•§§ 239, 240.] ATTACHMENT. 453 
 
 In the case of Eussell vs. Euckman (3 E. D. Smitli, 419) the 
 defendant Ruckman had given his promissoiy note to the plain- 
 tiff, who had sued upon it. One Drury issued an attachment 
 against the plaintiff as a non-resident, in an action brought by 
 him, and the sheriff attached the note. The defendant set up this 
 attachment by supplemental answer as a defence. This was held 
 wrong. The 121st section of the Code was express in saying that 
 the action should be continued in the name of the original party, 
 but the court may substitute the party to whom the claim has 
 been transferred after the action has been commenced. The 
 sheriff might have applied to the court to be substituted as plain- 
 tiff, or he might have claimed to continue the action in the name 
 of Eussell. The defendant, if desirous of paying the debt, might 
 perhaps have applied to the court to stay proceedings until the 
 ■sheriff was substituted. 
 
 Section 239. 
 
 ■" Bond to shei'iff on attachment — lum disposed of onjvdg- 
 mentfor defendant. 
 
 " If the foreign corporation, or absent or absconding or con- 
 cealed defendant, recover judgment against the plaintiff in such 
 action, any bond taken by the sheriff, except such as are men- 
 tioned in the last section, all the proceeds of sales and moneys 
 collected by him, and all the property attached remaining in his 
 hands, shall be delivered by him to the defendant, or his agent, 
 on request, and the warrant shall be discharged, and the property 
 released therefrom." 
 
 This section has remained unaltered since its adoption in 1849. 
 
 Section 240. 
 
 ■" Bisdmrge of attacliment, and return of property or its 
 proceeds to defendant, on Ms appearance in action. 
 
 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 
 
454 ATTACHMENT. [§ 24Ch. 
 
 same be granted, all the proceeds of sales and moneys collected 
 by him \the sJi&riff\ 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. 
 
 2. " And where there is more than one defendant, an 1 sev- 
 eral 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 apply to the officer who issued the attach- 
 ment for relief under this section." 
 
 [1] The provision marked 1 has remained unchanged since its 
 adoption in 1849. In 1862 the clause marked 2 was adopted. 
 
 The last clause of the amendment to section 241, made in 
 1857, should be noticed in connection with this section. " In aU. 
 cases the defendant may move to discharge the attachment, as in 
 the case of other provisional remedies." 
 
 The application may, of course, be made upon the ground of 
 any defect in the affidavit on which the warrant was granted, or 
 its insufficiency. It was once questioned whether this could be 
 made except before the judge who granted the warrant. But 
 this doubt was, I think, overruled before the amendment of 1857. 
 (Furman vs. "Waller, 13 Howard, 348.) 
 
 It was considered proper by one of the justices of the Supe- 
 rior Court, that the discharge should not be made without notice, 
 or an order to show cause, even when an undertaking was given 
 under section 241.' In the case referred to, an important ques- 
 tion as to co-defendants being sureties was raised upon such an 
 order." 
 
 Notwithstanding the apparently positive language of the 
 241st section, it was held before the amendment of 1857, that the 
 motion could be granted upon merits without the undertaking.' 
 By the amendment of 1857, the defendant may move to discharge 
 the attachment, as in the case of other provisional remedies. 
 
 The amendment of 1857 has, it is presumed, settled the ques- 
 tion, much controverted, whether, upon a motion to discharge an. 
 
 ' Mortimer vs. Brimner and others, Sept. 6, 1859. Hoffman, Justice. 
 
 ^ See joos(, note to section 241. 
 
 ' Eillian vs. Waehiiigton, 2 Code Reporter, 78. 
 
§ 241. J ATTACHMENT. 455 
 
 attachment, affidavits on the part of the defendant could be used, 
 and further supporting affidavits on the part of the plaintiffi' It 
 is presumed that the rule laid dovrn in sections 205 and 226 
 would now prevail. See cmte, tit. Arrest and Bail, § 205. 
 
 At any rate, it is the settled course, in the Superior Court of 
 of New York, to admit them.'' 
 
 [2] The addition of April, 1862, enables each of several de- 
 fendants to move as to his own several property, as if he were the 
 only defendant. I have not yet met any judicial decision upon it. 
 
 Section 241. 
 
 " Tlnd&i'taking on the part of the defeiidant. 
 
 1. " Upon such application, the defendant shall deliver to the 
 court or officer an undertaking, executed by at least two sureties, 
 who a/re residents and freeholders, or householders, 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. 
 
 2. " 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. 
 
 3. " And in all cases the defendant may move to discharge 
 the attachment, as in the case of other provisional remedies. 
 
 4. " And where there is more than one defendant, and several 
 
 ' Conklin vs. Dutcher, 5 Howard's Pr. Rep. 386 ; Nilee vs. Vanderzeer, 14 How- 
 ard, 647; Laneingburgli vs. McKee, cited ibid.; N. Y. & Erie Bank vs. Codd, 11 
 Howard, 221; Granger vs. Schwartz, Superior Court, N. Y., 11 Legal Obs. 346 ; 
 St. Amand vs. Beixcedon, 3 Sandf. 708. 
 
 ' Barry vs. Bokover, April, 1868, 6 Abbott, 374 ; Potter vs. Ritcher, ibid. 874, n.; 
 Chain vs. Wilson, 16 Howard, 562; 1 Bosworth, 673; 8 Abbott, 88; St. Amand m. 
 Beixcedon, 3 Sandf. S. Ct. Rep. 703. 
 
456 ATTACHMBHT. [§ 24:1. 
 
 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 judg- 
 ment that may be recovered against such defendant. And all 
 the provisions of this section applicable to such undertaking shall 
 be applied thereto." 
 
 The Code, until 1857, contained only the provision in the 
 above first subdivision of this section. The words italicized were 
 not in it. Those words, and the whole of the second and third 
 subdivision, were added by the amendment of the 17th of April, 
 1857. The 4th was added in April, 1862, taking effect the 13th 
 of May. 
 
 1. Undertaking. — It has been held that co-defendants jointly 
 liable upon the demand in suit, and who were residents, were not 
 disqualified from being sureties in the undertaking. The lan- 
 guage of the Code permitted it ; and nothing was stated against 
 the solvency of the other parties, or of the firm. It was, after all, 
 the interest of the non-resident in the firm property which was 
 thus sequestrated.' 
 
 Of course, the undertaking need not be executed by the 
 debtor. 
 
 It has been held that when an undertaking was given under 
 this section on discharging an attachment, and one of the sureties 
 became insolvent, the court had no power to order additional 
 sureties to be given." The case of Bettshover vs. Wheaton (15 
 Howard, 310) was referred to, where a similar decision was made 
 in relation to an undertaking on an appeal. By an amendment 
 of 1859 to section 335, new security may be obtained in case of 
 insolvency of parties in appeal undertakings. 'No similar provi- 
 sion has been made for other cases. 
 
 2. Appraisement. — In Spencer vs. The Eogers Locomotive 
 and Machine Works (Superior Court Chambers, Sept., 1861 — 
 Hoffman, Justice), a question arose, under this section, how the 
 
 ' Mortimer vs. Brunner and others, Chambers, Sept. 6, 1859 — Hoffman, Justice. 
 ' Dudley vs. Goodrich, 16 Howard, 189. 
 
§ 241.J ATTACHMBNT. 457 
 
 property taken was to be appraised, when an affidavit was made 
 of its being of less value than the demand. The order was, " that 
 an inventory and appraisement of the property be made under 
 the 241st section of the Code, by the Sheriff of the City and 
 County of New York, with the assistance of two disinterested 
 freeholders, notice of the time and place thereof being given to 
 the attorney of the plaintiff." 
 
 The reasons for the order were these : The Code directs that 
 the court or officer may order the property to be appraised, not 
 pointing out any manner of doing so. The Eevised Statute, " of 
 attachments against absconding, &c., debtors (2 E. S. 2), di- 
 rects, in section 8, that the sheriff, immediately on making the 
 seizure, with the assistance of two disinterested freeholders, make 
 a just and true inventory of all the property so seized, stating 
 therein the estimated value of the several articles of personal 
 property." Under sections 468, 469, this practice may be resort- 
 ed to for making an appraisement. 
 
 It might very well be, however, that an order of reference 
 could be made under the third subdivision of section 2T1 of the 
 Code. 
 
 It has been held that the party cannot apply under this sec- 
 tion after judgment, although he has appealed. In Spencer vs. 
 The Eogers Locomotive and Machine Works (Superior Court, 
 Sept. 10, 1861), the judge said : " The theory of a provisional 
 remedy is, that it gives some intermediate and conditional protec- 
 tion and assistance before a judgment has defined the rights of 
 the parties. The judgment in the present case, although appealed 
 from, is a perfect, absolute judgment, as if affirmed in the highest 
 court ; but its enforcement is arrested by the appeal. In the case 
 of an arrest, the application for an order must be made before 
 judgment (§ 183) ; of claim, and delivery before answer (§ 206) ; 
 and of an injunction before judgment (§ 220). The motion to set 
 aside an injunction must be made before trial (§ 225) ; upon claim 
 and delivery, the defendant may get back the property before its 
 delivery to the plaintiff. The language of section 240 admits of 
 a construction under which the present motion might be made 
 after judgment.. On the contrary, the form of the undertaking 
 prescribed in the 241st section implies a future anticipated judg- 
 ment. 
 
458 ATTACHMENT. [§ 241. 
 
 " The 232d section directs the sheriff to keep the property seized, 
 or the proceeds of what may have been sold, to answer any judg- 
 ment which may be obtained in the action. By the 227th, the 
 property attached is to be as security for the satisfaction of such 
 judgment as the plaintiff may recover. By the 23'rth section, in 
 case judgment be entered for the plaintiff, the sheriff shall satisfy 
 the same out of the property attached by him, by paying over 
 the proceeds of any sales made by him, and the avails of any 
 credits collected by him ; and, if execution has issued, by selling 
 any other attached property. ' When the judgment and all costs 
 shall have been paid, the sheriff, upon reasonable demand, shall 
 deliver over to the defendant the residue of the property attached, 
 or the pi'oceeds thereof.' 
 
 " These provisions show quite clearly that, after judgment for 
 the plaintiff, the lien had become consummated, and the right to 
 satisfaction out of the specific property established, though satisfac- 
 tion is suspended by the appeal ; so that it becomes equivalent to 
 an execution actually levied. No such thing is known in the law 
 as a re-delivery of property levied upon when an appeal stays 
 further proceedings in the case. I am of opinion that the motion 
 to discharge the attachment must be denied." 
 
 Any collusion with the debtor and an attaching creditor to 
 keep the property from the effect of another attachment, is good 
 ground to vacate the first. 
 
 In Reed vs. Ennis (4 Abbotts' Eep. 393), H. issued an attach- 
 ment, which was levied upon joint property of the debtor and his 
 partner. The debtor then, with his copartner, gave a confession 
 of judgment to Reed, and thus to get a priority. The confession 
 was set aside as fraudulent. Reed then issued an attachment on 
 the partnership debt, and directed a levy on the sarne property. 
 He then took no further steps in his action for four months, leav- 
 ing his attachment dormant. The court concluded, from these 
 and some other facts, that the attachment was levied, not to se- 
 cure the debt, but to continue the hinderance and delay of H., 
 and it was vacated. 
 
 3. Motion to discharge. — The party may move to discharge 
 the attachment as in the case of other provisional' remedies. 
 
 It is presumed that this renders applicable on such a motion 
 all the general rules which have been adopted on motions to dis- 
 
§ 241. J ATTACHMENT. 45& 
 
 charge an arrest and injunction, when they are in their nature 
 applicable. 
 
 I consider the rule to be settled, that it is only when a 
 motion to discharge an attachment is made on affidavits on the 
 part of the defendant, that the plaintiff can support his case by 
 additional affidavits. (Wilson vs. Britton, 6 Abb. 433 ; Mr. Jus- 
 tice Bonney's statement of the rule of the Supreme Court in this 
 district, in the case of Dickinson vs. Benham, 10 Abbott ; 19 
 Howard, 410 ; Dickinson vs. Benham, 20 Howard's Pr. K. 343, 
 General Term ; Granger vs. Schwartz, Superior Court, 11 Legal 
 Observer, 346.) 
 
 The last clause of section 241 of the Code was adopted in 
 April, 1857, and provides " that in all cases the defendant may 
 move to discharge the attachment, as in the case of other provi- 
 sional remedies." 
 
 He then moves, not upon giving security, but upon the law 
 and merits of the case. The language appears to indicate not 
 merely that he may move, as in the case of an arrest, for exam- 
 ple, but also that he is to move under similar rules and provi- 
 sions. The rule is quite clear that, in cases of arrest or injunc- 
 tion, affidavits to support the plaintiff's case are inadmissible 
 when the defendant moves on the original papers merely. 
 
 But in the case of Dickinson vs. Benham (20 Howard, 343) it 
 was ruled, at General Term, that additional affidavits are admis- 
 sible to show facts occurring since the original application was 
 made ; and an affidavit was there allowed to be read to show, 
 that a general assignment of all his property had been made by 
 the defendant. 
 
 A defendant may move to discharge an attachment, although 
 he had made a general assignment covering the property, after 
 such attachment was levied. And it has been held that the fact 
 of the assignment being before the attachment would not make a 
 difference. 
 
 In Brewer vs. Tucker' the court said : " The third and more 
 difficult question, relates to the defendant's right to make the mo- 
 tioi;. In the affidavit on which the order to show cause was 
 granted, it was sworn to by the defendant that, previous to the 
 
 ' Superior Court, Special Term, Sept. 20, 1861— Hoffiman, Justice. 
 
460 ATTACHMENT. [§ 241. 
 
 granting of such attachment, this defendant had executed an as- 
 signment of all his property, in trust for the benefit of his cred- 
 itors, to J. P. Sullivan ; that said attachment had been levied 
 upon property so assigned by this defendant to said Sullivan, 
 and now in his possession, and the said assignee is embarrassed 
 in the disposition of the said property by the claim of the sherifi", 
 under said attachment, and the defendant is desirous of a speedy 
 hearing of a motion to discharge such attachment. 
 
 "The case of Dickinson vs. Benham (20 Howard, 343), before 
 referred to, is an express decision, at General Term, that the fact 
 of the defendant having made a general assignment for the bene- 
 fit of creditors after the attachment had issued, does not prevent 
 his moving to discharge it. The case of Furman vs. "Walter (13 
 Howard, 350) is cited, as deciding that only ia party who is some- 
 way injured by the process can move to discharge it; and it is 
 held that an assignor for creditors has such a reversionary inter- 
 est, if there should be a surplus, and such an interest in the ap- 
 propriation of the funds as to justify his motion. 
 
 " In Furman vs. "Walter the transfer was absolute and uncondi- 
 tional sale of a stock of goods. 
 
 "In the present case, the assignment was made before the at- 
 tachment ; but no solid distinction exists on this ground. The 
 residuary interest is as great in the one case as in the other. 
 
 " It may be urged with force, that such an assignment operates 
 to transfer the right of property, the possession, the exclusive 
 dominion and control, with only a remote conditional possibility 
 of interest in the assignor ; that if the property belonging to the 
 assignee is illegally interfered with, his mode of redress is open 
 and available, and that to allow one who could not take posses- 
 sion, or exercise the least control, to interfere and remove an ob- 
 struction or apparent lien upon the property, seems anomalous. 
 I do not feel, however, at liberty, at Special Term, to disregard so 
 express an authority from so high a source." 
 
§§ 242, 243.] ATTACHMENT. 461 
 
 Section 242. 
 
 " When sheriff to return warrant, ami proceedings thereon^ 
 
 " When the warrant shall be fully executed or discharged, the 
 sheriff shall return the same, with his proceedings thereon, to the 
 court in which the action was brought." 
 
 There has been no change in this section since 1849. 
 
 It is to be observed, that no return day, or direction to return, 
 is contained in the warrant, and the present section is all that 
 applies to that subject. It would seem that the warrant may thus 
 lie in the sheriff's hands until judgment, at least, and be executed 
 whenever property is pointed out to him in the interval. 
 
 Section 243. 
 
 " Sheriff'' s fees. 
 
 " The sheriff shall be entitled to the same fees and compensa- 
 tion 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 Eevised 
 Statutes." 
 
 The provisions referred to are found in 2 E. S. 3, §§ 1-6, 
 and in 2 R. S. 646. The compensation and fees to be allowed 
 are as follows : 
 
 " For serving an attachment against the property of a debtor, 
 fifty cents, with such additional compensation for his trouble and 
 expenses in taking possession of and preserving the property at- 
 tached as the officer issuing the warrant shall certify to be reason- 
 able ; and where the property so attached shall afterwards be 
 sold by the sheriff, he shall be entitled to the same poundage on 
 
 ' The Title 1, " Of Provisional Remedies in Civil Actions" now treated of. 
 
462 ATTACHMENT.. . [§ 243. 
 
 the sum collected as if the sale had been made under an execu- 
 tion." 
 
 " For making and returning an inventory and appraisal, such 
 compensation to the appraisers, not exceeding one dollar to each 
 per day for each day actually employed, as the officer issuing the 
 attachment, shall allow, and the same compensation for drafting 
 and copying the inventory as is allowed for drafts and copies to 
 attorneys in the Supreme Court." 
 
 " For selling any property so attached, and for advertising 
 such sale, the same allowance as for sales on executions." 
 
 The sheriff may apply to the officer to fix his compensation 
 for trouble and expenses, without waiting to see whether the 
 plaintiff proceeds in the action, or for its determination.' 
 
 The Supreme Court in the First District has adopted, as a 
 general practical rule, that the allowance at the rate of poundage 
 upon the amount claimed shall furnish a rule of compensation, 
 except when that amount is so large as that the allowance would 
 be excessive. This is in the case of a settlement of the action 
 before a sale, and when the amount claimed or property taken 
 (which should not exceed the amount demanded) supplies the 
 only ground for adjusting the amount. 
 
 In a case at Special Term of the Superior Court this rule was 
 adopted. The action was compromised after an attachment had 
 been executed upon some property. The rate of poundage on the 
 demand was taken as the rule of compensation.' 
 
 It was held, in the same case, that the amount allowed for 
 compensation must include the expenses. There could not be an 
 allowance as for trouble and the sheriff be entitled also to claim 
 his expenses. Of course, the compensation would be regulated 
 with due regard to such expenses. 
 
 This compensation is for taking possession of and preserving 
 the property. If a sale is afterwards made, the sheriff becomes 
 entitled to his poundage also. 
 
 The rate of poundage is fixed by the statute at two cents and 
 five mills per dollar on $250, and on every dollar beyond $250 
 one cent and two and a half mills. (2 E. S. 645.) 
 
 The allowance for drafting and copying the inventory must, 
 
 ' Hoge vs. Tage and others, 11 Howard, 207. 
 " Before Hoi5Etnan, Justice, December, 1861. 
 
§ 243.] ATTACHMENT. 463 
 
 it is supposed, be regulated by the fee bill in force when the Code 
 went into effect. 
 
 The fees for advertising and selling the property are fixed by 
 the statute. (2 E. S. 645.) 
 
 Costs and allowance. 
 
 Where the defendant was a foreign corporation, and under a 
 warrant of attachment, the sheriff had levied, upon property to 
 the amount of $9,000, and the suit was settled before answer, 
 upon payment of costs to be made by the defendants ; it was held 
 that the plaintiff was entitled to an allowance under section 308 
 of the Code, to the full extent which could be allowed.' 
 
 But, in Pratt vs. Conkey (15 Howard, 27), Justice Marvin 
 held that the allowance could only be made upon the recovery of 
 judgment ; and, after a tender of the amount due and costs, the 
 plaintiff could not proceed to judgment to obtain the percentage. 
 
 Brace vs. Beatty (5 Abbott, 221), cited by Justice Davies, has 
 been reversed." 
 
 The provision of the 308th section of the Code is, that there 
 shall be allowed to the plaintiff, upon the recovery of judgment 
 by him in an action for the partition of real estate, &e., or in which 
 a warrant of attachment has been issued, the sum of ten per cent, 
 on the recovery, as in t^e next section provided. And, by the 
 309th section, the rates shall be estimated upon the value of the 
 property claimed or attached. In 1858, the addition was made 
 to section 309 of the following clause. In difficult and extraor- 
 dinary cases, when a trial has been had, and in any of the actions 
 or proceedings specified in section 308, the court may also, in its 
 discretion, make a further allowance to any party, not exceeding 
 five per cent, upon the amount of the recovery, or claim, or sub- 
 ject-matter involved. 
 
 But, by the amendment of April 16, 1859, the word and, 
 above italicized, was altered to' the word except. The amendment 
 of 1862 does not vary the question. 
 
 It would seem that, by the express language of the Code, no 
 allowance could be made in cases of attachment until judgment. 
 
 ' Daviea, Justice, in Brown vs. The Safeguard Ins. Co., ^ Abbott, 340. 
 " Y Abbotts' Eep. 445. 
 
464 ATTACHMENT. [§ 243. 
 
 The exception of cases of attachment, and the other specified 
 cases, from the power to allow when a trial has been had, is 
 strong to show that no allowance can be made but upon recovery 
 of judgment. 
 
 It has been held that, where judgment was recovered, and an 
 attachment had been issued, an allowance could be made, although 
 no property was attached." 
 
 ' Jackeon m. Figaniere, 15 Howard, 224. 
 
CHAPTER V. 
 
 RECEIVERS. 
 
 Section 244. 
 
 ^^Powers of court as to receivers, deposit of money, &c., in 
 cov/rt, and other provisional remedies. Jtodgment for 
 sv/m admitted due. 
 
 " A receiver may be appointed — 
 
 " 1. Before judgment, on the application of either party, when 
 he establishes an apparent right to property which is the subject 
 of the action, and which is in the possession of an adverse party, 
 and the property, or its rents and profits, are in danger of being 
 lost, or materially injured or impaired ; except in cases where 
 judgment upon failure to answer may be had without application 
 to the court ; 
 
 "2. After judgment, to carry the judgment into effect; 
 
 "3. 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 judg- 
 ment-debtor refuses to apply his property in satisfaction of the 
 judgment ; 
 
 " 4. In the cases provided in this Code, and by special stat- 
 utes, when a corporation has been dissolved, or is insolvent, or in 
 imminent danger of insolvency, or has forfeited its corporate 
 rigbts ; and in like cases, of the property within this State of for- 
 eign corporations. 
 
 " Eeceivers of the property within this State of foreign corpo- 
 rations shall be allowed the same commissions as are allowed by 
 law to the trustees of the estates of absconding, concealed, and 
 non-resident debtors; 
 
 " 6. In such other cases as are now provided by law, or may 
 be in accordance with the existing practice, except as otherwise 
 provided in this act." 
 30 
 
4:66 EECEIVEES. [§ 244^ 
 
 Receivers upon supplementary proceedings, under section 298, 
 form a separate class, and are hereafter treated of. 
 
 Chapter V. of this 7th Title was, in the Code of 1849, simply 
 as follows : " Until the Legislature shall otherwise provide, the 
 court may appoint receivers, and direct the deposit of money, or 
 other thing, in court, and grant the other provisional remedies 
 now existing, according to the present practice, except as other- 
 wise provided in this act." (§ 244, Code 1849.) 
 
 In 1851 the section was amended, and, as to receivers, was the 
 same as at present, and, excepting the last clauses of section 1 and 
 of section 4, with some variations of language. 
 
 In 1852 it was enacted as it now stands in relation to receivers, 
 with the same exceptions. 
 
 In 1858 the last clause of subdivision 1, and the last clause of 
 subdivision 4, were added. (Sess. Laws of 1858, eh. 306, §§ 20, 21.) 
 
 In 1862 the second paragraph of subdivision 4 was enacted. 
 
 Sttbdivision 1. Before the judgment. — ^The first subdivision 
 relates to a receiver before judgment, and authorizes the appoint- 
 ment. 
 
 The action must be commenced. — An apparent right is to be 
 shown to the property, the subject of the action.' It is not essen- 
 tial, however, that the adverse party should have appeared in the 
 suit to justify the appointment. A residence out of the jurisdic- 
 tion, an absconding or concealment to avoid service of process, 
 and other special circumstances, may warrant it.'' 
 
 If the property is of a perishable nature, or choses in action 
 would be in danger of being lost if not collected immediately, 
 such a case arises.' 
 
 The general rule, however, is, that a receiver cannot be ap- 
 pointed until after service of process and appearance, and then 
 upon notice, or after the time for appearing has expired.' 
 
 ' 2 Oner's Supr. Ct. Rep. 632; 1 Atkyna, 578. 
 
 2 Tanfield vs. Irvine, 2 Russell Ch. Rep. 149 ; Sandford vs. Sinclair, 8 Paige, 873 ; 
 Quin vs. Gunn, 1 Hogan, 76. 
 
 'Ibid. 
 
 * The People vs. Norton, 1 Paige, 17 ; Gibson vs. Harris, 8 Paige, 481 ; Stratton vs. 
 DaTidson, 1 Russell <fe Mylne, 484. 
 
§ 244.] EBCEIVEE8. 467 
 
 "By the ancient practice of the Court of Chancery in England, 
 a receiver was not appointed until after the coming in of the de- 
 fendant's answer. This practice was first hroken in upon by Lord 
 Apsley, in Compton vs. Bearcr9ft, 1773. And it is now well set- 
 tled, 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." ' 
 
 EitKer party may apply for a receiver. — This is warranted by 
 the next clause of this first subdivision. 
 
 It frequently occurs that a defendant requires a receiver as 
 against a plaintiff". In the settlement of partnership accounts, if 
 a survivor be plaintiff, even his legal title may be interfered with 
 on sufficient grounds. In Pelletrau vs. Frelinghuysen and others 
 (4 Paige, 204), a defendant, in a bill to redeem, applied for a re- 
 ceiver, which was granted, unless certain terms were complied 
 with. 
 
 And although it has been said that a receiver may not be ap- 
 pointed on the application of one defendant, as to property in the 
 hands of another, before hearing," it may be questioned whether 
 
 this is universally true. In vs. Moore (16 En. Law & Eq. 
 
 Rep. 130), a receiver was appointed as against a defendant mort- 
 gagee in possession, on the application of another mortgagee, also 
 a defendant. It is true it was after decree. 
 
 Ground of title to a receiver. — The next clause of this subdivi- 
 sion is, that the party is to establish an apparent right to property 
 which is the subject of the action. 
 
 It is said that the party is to make a case when plaintiff, 
 which will entitle him to the relief he demands in his complaint.' 
 The right of a defendant when he applies must appear on his 
 case equally clear. 
 
 The rule is sometimes stated in the strong language of coun- 
 sel, in Clark vs.- Dew (1 Eussell & Mylne, 108), " that the court 
 never interferes by appointing a receiver, unless it entertains a 
 clear opinion that when the cause is brought to a hearing a decree 
 
 ' Bloodgood vs. Clark, 4 Paige's Rep. 674. 
 ' Trumbull vs. Ogden & Gibbons, cited Halstead's Digest, 178. 
 = Hamilton vs. The Accessory Transit Company, 3 Abbott, 356 ; Hotop vs. Du- 
 rant, 6 Abbott, 371, n. 
 
468 EBOEIVEES. [§ 244. 
 
 must be made in the plaintiff's favor." I apprehend this is not 
 the true principle. 
 
 Lord Lyndhurst, in that case, did not recognize it as so stated, 
 but spoke of the application as one made to the discretion of the 
 court ; and he examined the facts to show that the party upon 
 the, title and right he presented ought not to have a receiver. 
 
 The principle upon which the court directs property in con- 
 troversy to be placed in the hands of a receiver pending a litiga- 
 tion, is, that the party applying has shown at least a probable 
 interest in the property, and that there is danger of its being lost 
 without such protection.' 
 
 Many qualifications of this rule, in its exact strictness, are to 
 be found. 
 
 If a numb* of parties claim a right to the property, and yet 
 a contest exists which of them possesses it, it is sufficient that one 
 or other of them has the right ; and if it is not shown that neither 
 possesses it as against the party in possession, a receiver may be 
 had. It is enough that one of those who apply may, on the case 
 as it stands, have the right, although the establishment of his 
 claim destroys that of each of the other applicants. 
 
 Again, it is not an answer to this application, that doubts ex- 
 ist as to the propriety of the frame of the suit, and that there may 
 be a necessity of making further parties. If the court can see 
 that an amendment will remove these difficulties, it will pro- 
 ceed.' 
 
 Again, upon the question of title, a very important distinction 
 exists between cases where different and hostile equitable inter- 
 ests are involved, and where one party has the legal title unques- 
 tionably in him, and particularly where with such title he is in 
 possession. 
 
 In instances of the last character the court interferes rg,rely 
 and with reluctance. Yet cases may be made out to justify it. 
 
 ' Harris, Justice, in Goodyear vs. Betts, 7 Howard's Pi-. Eep. 1S1. 
 
 ' Fripp vs. The Chard Railway Company (21 En. L. <fc Eq. Rep. 53) ; Evans vs. 
 Coventry (31 ibid. 436). In the last ease there was, among other objections to the 
 frame of the bill, a misjoinder of plaintiffs, and a want of parties. But the court 
 held that, although the bill must be thorougUy amended before a decree could be 
 had, this formed no objection to granting a receiver. The plaintiffs were interested 
 in the property which was in danger. 
 
§ 244.] EECEIVEKS. 469 
 
 In Lloyd vs. Passingham (16 Vesey, 59), Lord Eljlon stated the 
 rule as strongly as this : that the court must not only be satisfied 
 of the existence of fraud, but be morally sure that, upon the 
 hearing of the cause, the party would be turned out of posses- 
 sion ; and not only that, but it must see the same danger to the 
 intermediate rents and profits. 
 
 Yet the appointment was made in Hugonin vs. Basely (13 
 Vesey, 104), " where there was a strong probable title in the 
 plaintiff to call back the estate upon such terms as may seem 
 proper at the hearing." In Stilwell vs. Wilkins (6 Madd. Kep. 
 49 ; Jacobs' Eep. 280) it was granted on a bill to set aside 
 a sale of the plaintiff's ancestor, because of the inadequacy 
 appearing monstrous, and the situation of the party and state of 
 his intellect such that it was hardly possible to suppose the 
 transaction could stand. 
 
 But the rule is less rigorous where the relation, or contract 
 between the parties, raises the question, whether the applicant is 
 not entitled to the legal estate." 
 
 The apparent right is to be shown to property which is the 
 subject of the action. It may be stated that whatever property 
 may be the subject of an action, and be recovered or applied in 
 that action, may be subject to the power of a receiver. It may 
 be easier to say what is excluded. 
 
 In Davis vs. The Duke of Marlborough (1 Swanston, 74) it 
 was held that the pension of the duke could not be charged or 
 aliened by him, and a receiver was refused as to it. This was 
 upon a particular act of Parliament. In general, a pension from 
 the Crown may be reached in satisfaction of debts.' 
 
 The half-pay of an ofiicer of the navy or army is, however, 
 exempt in England.' The salary of a counsel to the Commis- 
 sioners of the Treasury, being a public ofiicer, was held not as- 
 signable, and not subject to a receiver." 
 
 1 Metcalf «)s. Pulvertorf, 1 Ves. & Bed. 180; Shakel vs. The Dnke of Marlborough, 
 i Madd, Rep. 463. 
 
 " McCarthy vs. Gould, 1 Ball & Beatty, S81. 
 
 = Ibid. Stone OT. Lidderdale, 2 Anstr. 633; Colyer vs. Fallon, 1 Turner's Kep. 
 459. 
 
 ■* Cooper vs. Really, 2 Simons' Rep. 660. At the hearing, a case was made for 
 the opinion of the Judges of the Court of Common Pleas upon this question. 
 
4:70 EECBIVEE8. [§ 244. 
 
 In Blancljard vs. Cawthorne (4 Simons, 566) a receiver was 
 ordered of the rents, offices, benefits, and franchises of a Master 
 of the Royal Forests. The court thought these profits might not 
 be subject to an elegit at law, but could be treated in equity as 
 assets liable to specialty creditors. 
 
 In Browning vs. Betts (8 Paige, 568) the Chancellor decided 
 that the complaint in a judgment creditor's bill could not reach 
 the compensation which the debtor would become entitled to as 
 assistant marshal in making the census. But in other cases cited 
 it was admitted that the compensation actually earned could be 
 reached. 
 
 The author has decided in one case, as Assistant Vice-Chan- 
 cellor, and submitted as counsel to a decision of Yice-Chancellor 
 McCoun, that the salary of a custom-house of&cer past due, could 
 be reached, but not the future earnings. A receiver could not be 
 appointed to collect them. It may be doubted whether the ac- 
 crued salary of any public officer can be protected from the 
 claims of creditors. 
 
 The next clause of this first subdivision is, that the property 
 is in the possession of an adverse party. 
 
 Generally speaking, a receiver supersedes the possession of 
 one who claims the right and the possession, in hostility to the 
 applicant. Yet it is not to be understood that there must be such ■ 
 an adverse possession before a receiver can be appointed. In the 
 important case of Davis vs. The Duke of Marlborough (1 Swan- 
 ton's Rep. 74) the plaintiff had an annuity charged on real estate, 
 and elegit creditors were in possession. A receiver was appointed 
 without prejudice to their rights. 
 
 In Thompson vs. Van Vechten the possession of a steamboat 
 was in the Marshal of the United States, under a claim upon 
 maritime liens, and a receiver was appointed to receive the sur- 
 plus from the District Court, which was claimed by numerous 
 adverse parties in a suit in the Superior Court. (5 Duer's Rep. 
 618.) 
 
 It may perhaps be accurate to say, that the clause means that 
 the property is not in possession of one holding under, or recog- 
 nizing the applicant's title. A first mortgagee in England who 
 has the legal estate may not have a receiver, because he may 
 enter. The mortgagor holds under him. 
 
§ 244.] EECEITEE8. 471 
 
 The next clause of the provision is, that the property, or its 
 rents and profits, are in danger of being lost, or materially in- 
 jured or impaired. 
 
 It seems to be obvious that this rule must be applied with 
 strictness or relaxation, according to the position of the appli- 
 cant and nature of the case. 
 
 A surviving partner has, for example, the legal title to the 
 property. He may insist upon holding and converting it, until 
 a strong case of danger, from insolvency or misconduct, is made 
 against him. And he may insist on delivery to him, without 
 making a strong case against those in possession. (Shuler vs. 
 Bleidorn, Superior Court, Dec. 1853; Evans m. Evans, 9 Paige, 
 178.) 
 
 "Where, however, partners or joint owners are upon an equal 
 footing in respect to the legal right, it is nearly a matter of course, 
 upon a dissolution being made, or an action brought to effect a 
 dissolution, to have a receiver. (Wilson vs. Greenwood, 1 
 Swanston, 478-480 ; Smith vs. Danvers, 5 Sandf. Supr. Ct. Rep. 
 609.) 
 
 A solvent partner, his associates being insolvent, has not the 
 paramount legal title, like a survivor. Yet he should be ap- 
 pointed receiver, if no objection exists as to his capacity or integ- 
 rity. (Hubbard vs. Guild, 1 Duer's Eep. 662.) 
 
 A plaintiff alleged, upon information and belief, that an as- 
 signee was not the owner of property or effects of any descrip- 
 tion sufficient to meet his debts and liabilities. This state- 
 ment, if undenied, is sufficient to show that the property in the 
 assignee's hands was in danger, and to justify the appointment of 
 a receiver. (Goodyear vs. Betts, 7 Howard's Pr. Eep. 187 ; Con- 
 nah vs. Sedgwick, 1 Barbour's Supr. Ct. Eep. 210.) 
 
 Where a joint ownership existed in a vessel and her freight, 
 between the plaintiffs and defendants, which the court treated as 
 a partnership, the court refused to restrain her sailing, or to com- 
 pel a sale by a receiver, before judgment, but security was re- 
 quired to account for her earnings, and for her safe return within 
 the jurisdiction of the court, to abide its judgment, or to pay the 
 plaintiffs the amount of their present value. 
 
 The exception introduced in 1858 to the power of the court to 
 
472 BECEIVEES. . [§ 244. 
 
 appoint a receiver is, " in cases where judgment upon failure to 
 answer may be had without application to the court." 
 
 The cases in which this may be had are declared in section 
 246. 
 
 No doubt, however, a receiver may be appointed after such a 
 judgment, as well as after any other, to carry it into effect, or dis- 
 pose of property according to it, under subdivisions 2 and 3 of the 
 present section. 
 
 In Austin vs. Figuera (7 Paige, 56) it was held that after a 
 bill had been taken as confessed against a defendant for want of 
 appearance, an application for the appointment of a receiver may 
 be made ex parte, and without notice to him. (Ifesmith vs. 
 Halsted, 11 Paige, 647.) 
 
 In what cases appointed.— After the analysis of this leading 
 clause of the section, the next subject of consideration is, the 
 enumeration of the ordinary cases in which a receiver will be 
 granted during the litigation. 
 
 Pa/rtnership Cases — "When a partnership expires, whether by 
 the death of a party, or efflux of time, without special provision 
 as to the disposition of the property, in all those cases, to which 
 I may add the bankruptcy of a partner, the partnership is con- 
 sidered in one sense as determined, but in a sense also as contia- 
 ued, that is, continued until all the affairs are settled ; and as in 
 the ordinary course of trade if any of the parties seek to exclude 
 the other from taking that part in the concern which he is enti- 
 tled to take, the court will grant a receiver ; so, in the course of 
 winding up the affairs, after the determination of the partner- 
 ship, the court, if necessary, interferes on the same principle." 
 (Lord Eldon, in Wilson m. Greenwood, 1 Swanston, 471, 480.) 
 
 The general rule, that the bill must show that the party will 
 be entitled to a dissolution of the firm, or that a decree may be 
 made according to an agreement for regulating the mode of car- 
 rying on the business, is even stronger in the case of a receiver 
 than of an injunction. (Goodman vs. Whitcomb, 1 Jac. & 
 Walker, 669 ; Chapman vs. Beach, ibid. 573, n.) 
 
 Lord Eldon said : " It may be a question whether the court 
 will not restrain a partner, if he has acted improperly, from doing 
 certain acts in future ; but if what lie has done does not give the 
 other a right to a dissolution of the partnership, what right has- 
 
§ 344.] EECEIVEBS. 473 
 
 the court to appoint a receiver, and make itself the manager of 
 every trade in the kingdom ? " 
 
 In Court vs. Harris (Turner & Eussell, 496) the appropriation 
 of the proiits of Covent Garden Theatre was provided for in arti- 
 cles of agreement. The owners of seven-eighths attempted to 
 apply them otherwise, and, on a bill filed for specific performance 
 of the covenants, a receiver was appointed. 
 
 It may be stated that, when a dissolution is intended, or has 
 taken place, a court of equity will apipoint a receiver, provided 
 there be some breach of the duty of a partner, or of the contract 
 of partnership.' 
 
 If one partner unjustly takes possession of the property, and 
 refuses to give security for the other's share of the stock, &c., a 
 receiver may be had. ' 
 
 In Eoberts vs. Eberhardt (23 En. L. & Eq. Eep. 245) two so- 
 licitors had carried on business in partnership, without any defi- 
 nite time fixed for its continuance. One of them gave notice of 
 dissolution, and refused the other access to the books. A receiver 
 was appointed, and an order as to access was made. 
 
 If, after dissolution, one partner attempts to carry on the trade 
 with the partnership effects, on his own account, this affords am- 
 ple ground for the appointment." 
 
 In a suit between the representatives of a deceased partner 
 and the survivor, the survivor has the legal right to wind up the 
 concern, and this will not be interfered with except upon the 
 ground of faithlessness or insolvency. (Evans vs. Evans, 9 Paige, 
 178 ; Madgwick vs. Winble, 6 Beavan, 495 ; Dyer vs. Clark, 5 
 Metcalf, 576 ; and the cases cited Collyer on Partnership, § 129, n.) 
 
 "When a partnership is dissolved by reason of the insolvency 
 of one of the members, and the other partner is solvent, the court 
 will interfere by injunction and receiver, to collect the assets and 
 make distribution. The rights of the insolvent partners were the 
 same as if the partnership had been dissolved for any other cause. 
 (Hubbard vs. Guild, 1 Duer's Eep. 662.) 
 
 In case of the death of all the partners, and a suit between the 
 
 ' Collyer on Partnership, p. 196; Harding vs. Glover, 18 Vesey, 281. 
 ' Martin vs. Schaick, 4 Paige's Rep. 479; Harding vs. Glover, ut supra. 
 
4:14: RECEIVERS. [§ 244. 
 
 representatives, a receiver is allowed as a matter of course. (Phil- 
 lips vs. Atkinson, 2 Bro. Ch. Ca. 272.) 
 
 I apprehend that a surviving partner is not entitled, without 
 the assent of the representatives of the deceased partner, or some 
 express stipulation in the articles of partnership, or otherwise, to 
 use the firm-name in continuing the business. If the partnership- 
 name or style has become the source of any value whatever, that 
 value is common property. Either it perishes with the firm itself, 
 and neither the survivor nor the representatives are entitled to use 
 it ; or it is an interest held in common, after the death of one 
 partner as fully as before, precisely as all tangible property is 
 held ; that is, possessed legally by the survivor for the mutual 
 benefit. The representatives have as much right to the name as 
 the survivor. 
 
 On the dissolution and winding up of a partnership, where a 
 valuable part of the firm's property consisted in the good-will of 
 the business carried on (a newspaper establishment), such value, as 
 much as the tangible property due to the firm, must be protected 
 and disposed of for the benefit of creditors of the firm, or of the 
 partner jointly. 
 
 The Judge said : " The valuable part of the partnership prop- 
 erty consisted in the good-will, so to term it, of the paper ; that 
 is, the celebrity which it had acquired under the name of ' Por- 
 ter's Spirit of the Times,' and the probability of that title continu- 
 ing to attract custom." 
 
 The receiver was empowered to carry it on for a period, which 
 was important to give time for disposing of the establishment ad- 
 vantageously. (Dayton vs. Wilkes, 17 Howard's Pr. Eep. 510.) 
 
 A receiver may be appointed of the assets of a limited part- 
 nership, when it has become insolvent, as well as any other. 
 
 In Lachaise vs. Marks (4 E. D. Smith, 612, n.), Justice Ingra- 
 ham refused to appoint a receiver, and allow an injunction, in an 
 action against an insolvent limited partnership, seeking to charge 
 the special partner as a general one, where the complaint was by 
 a single firm, and not on behalf of all who should come in, &c. 
 
 In Whitwright vs. Simpson (2 Barbour's Eep. 379) it was 
 ruled that where a limited partnership had become insolvent, and 
 neglected to place their assets in the hands of a proper trustee, to 
 be distributed among the creditors ratably, any creditor of the 
 
§ 244:.] RECEIVERS. 475 
 
 firm might file a bill to restrain an inequitable disposition of the 
 property, and have a receiver. 
 
 In Innes vs. Lansing (Y Paige, 583) the bill was by one cred- 
 itor of such a firm, on behalf of himself and all those who should 
 come in and contribute. Another bill of a similar character had 
 been filed and a receiver obtained in that action. 
 
 The Chancellor refused to stay proceedings in the present suit, 
 as no decree had been obtained in the other, which the plaintiff 
 there might dismiss if he chose. 
 
 He held that the statute (1 E. S. 764) constituted the effects 
 of the firm a special fund for the benefit of all the creditors. 
 • And in Jackson vs. Sheldon (9 Abbotts' Eep. 127) the doctrine 
 of Innes vs. Lansing was fully carried out. Certain creditors of a 
 limited partnership had obtained judgments and levied execu- 
 tions. The parties made a general assignment for creditors with- 
 out preferences. At the suit of a creditor on behalf of himself, 
 <fec., an injunction was allowed against the executions, and a re- 
 ceiver appointed. 
 
 Executors. — If there is danger to the estate in the hands of 
 executors, from fraud, or spoliation, or neglect, a receiver may be 
 had. 
 
 In Middleton vs. Dodswell (13 Vesey, 266) a receiver was 
 granted on an afl&davit that the executor and trustee had let 
 premises in his own name only, reserving rent to himself; that 
 large sums had been received, and not laid out in the securities 
 directed, and that the funds were in danger of being lost. 
 
 In Eichards vs. Perkins (3 Young & CoUyer, 299) the execu- 
 tor had neglected his duty in getting in the personal estate of the 
 testator. He had left a considerable portion of the property out- 
 standing on improper securities, and had not raised a sum appli- 
 cable to the support of infant legatees, which he was directed 
 to do. 
 
 In Scott vs. Becker (4 Price, 346) the executor was sought to 
 be removed on the ground of insolvency, and he did not meet the 
 allegations to that effect contained in the affidavits. A receiver 
 was appointed. 
 
 The mere fact that a testator knew that his named executor 
 was insolvent, will not prevent the appointment of a receiver. 
 
476 EECEIVEES. [§ 2M. 
 
 Langley vs. Hawk (5 Mad. Eep. 46) is to this effect ; and the 
 little that is opposed can scarcely be said to be authoritative. 
 
 In Jenkins vs. Jenkins (1 Paige's Eep. 243) the Chancellor 
 said that the appointment of a receiver rests in the discretion of 
 the court in all cases where executors have become bankrupt, or 
 wasted or misapplied the assets, or where any part had been lost 
 through their misconduct or negligence. There being one solvent 
 executor, the order was for him to elect to act with a receiver ; if 
 he refused, then one to be appointed absolutely. 
 
 In Howard vs. Papera (1 Mad. Ch. Kep. 142) it was held not 
 to be a sufficient ground for the appointment of a receiver, that 
 the executor was poor. No misapplication or abuse of trust was 
 shown. 
 
 In Gladdon vs. Stoneman (cited 1 Mad. Ch. Eep. 143, n.) the 
 testator had appointed the defendant his executor, and his wife 
 executrix. She died in his lifetime. Before his death the de- 
 fendant became bankrupt. On certain facts, Lord Eldon said : 
 " "Without saying that a person known by a testator to be a bank- 
 rupt, and yet appointed an executor, can be controlled by the ap- 
 pointment of a receiver — in this case it is clear that the testator 
 did not advert to the circumstance of this person being a bank- 
 rupt. A receiver must be appointed." 
 
 Tncstees. — Any party clothed with the character of a trustee 
 may be interfered with, and a receiver appointed over him, upon 
 the same grounds as will induce the court to act in the case of an 
 executor. ("Wilson vs. Wilson, 2 Keen, 249 ; Brodie vs. Barry, 3 
 Merivale, 696.) 
 
 Mortgages. — If the mortgage money is due, and the premises 
 are not of sufficient value to pay the debt and costs, the complain- 
 ants are considered in equity as immediately entitled to the whole 
 estate pledged as security, and a receiver of the rents and profits 
 will be appointed in anticipation of the decree. But no such 
 equity arises where the debt is not due, and the mortgagee has 
 not taken an express pledge of the rents and profits to keep down 
 the interest.' 
 
 If the defendant in possession will give proper security to pay 
 any deficiency upon a sale, a receiver will not be appointed." 
 
 ' Bank of Ogdensburg vs. Arnold, 5 Paige, 88 ; Sea Ins. Co. os. Stebbins, 8 Paige, 666. 
 ' Ibid. 
 
§ 244.] EEOEIVEES. • 477 
 
 In the case of Aberdeen vs. Chitty (3 Y. & Cott. 379) there 
 was an equitable mortgage by deposit of title deeds. Upon the 
 plaintiff making out a case of considerable danger to his security 
 unless he was protected, a receiver was granted before answer. 
 
 A second mortgagee may in general have a receiver where 
 the first is not in possession ; but if he is, a receiver cannot be 
 had unless it is shown that he has been fully paid off. 
 
 In Berney vs. Sewell (1 Jac. & "Walk. 627), Lord Eldon stated 
 that he had decided, in Quarrell vs. Beckford (13 Yesey, 377, but 
 afterwards before Lord Eldon), that if the mortgagee in possession 
 swore that anything was due to him, he could not be interfered 
 with. There must be an admission that he has been paid, or a 
 tender of what he claims to be due. 
 
 A mortgagee who has the legal estate cannot have a receiver ; 
 an equitable mortgagee may, but not if the iirst is in possession. 
 A second mortgagee is an equitable mortgagee ; and in two cases 
 a receiver was appointed at his instance, without prejudice to the 
 first mortgagee taking possession. (Bryan vs. Cormick, 1 Cox's 
 Cases, 423 ; Dalmer vs. Dashwood, 2 Cox, 378.) 
 
 But under the system prevalent in our State, as a mortgagee 
 cannot bring ejectment, he may (as is before shown) get a re- 
 ceiver of the rents and profits, if his security is inadequate. 
 
 Chancellor "Walworth, in the Sea Insurance Co. vs. Stebbins 
 (8 Paige, 565), states the rule thus : The court must be satisfied, 
 beyond all reasonable doubt, that the mortgaged premises upon a 
 Master's sale will bring sufiicient to satisfy the debt, with interest 
 and costs, or a receiver will be granted. 
 
 And if there is a party personally liable for the deficiency, his 
 insolvency must be made out, or, at least, danger of his not being 
 sufficiently responsible. 
 
 If an equitable mortgage is created by deposit of title deeds, 
 by two tenants in common, and one receives the whole of the 
 rents, a receiver may be appointed, although the other is out of 
 the jurisdiction. (Holmes vs. Bell, 2 Beavan, 298.) 
 
 If there is an agreement for a mortgage, and a bill filed to 
 compel its execution, and interest is due on money advanced, a 
 receiver will be appointed." 
 
 ' Shakel vs. The Duke of Marlborough, 4 Madd. Rep. 463 ; Free vs. Hind, 2 Si- 
 mons, '7. 
 
4T8 « EECEIVEES. [§ 244, 
 
 A mortgagee has no title to the rents of the premises paid into 
 conrt by a receiver appointed in a suit establishing the will of the 
 mortgagor, even although he gave notice to the tenants to pay the 
 rents to him. He ought to have moved to discharge the receiver. 
 His notice to the tenants could not divest the possession of the 
 receiver, which was in truth the possession of those who claimed 
 under the will of the mortgagor.' 
 
 Wherever there is an equitable charge on lands, and a 
 proper case is made of insecurity or neglect, a receiver will be 
 granted. 
 
 Thus, in Tanfield vs. Irvine (2 Kussell, 149), an annuity was 
 secured by a charge on real estate, and the grantor went abroad. 
 There was a prior charge on the property. The grantor's agent 
 continued in receipt of the rents. A receiver was allowed. And 
 see E. Owing's case (1 Bland. 297). 
 
 In Shotwell vs. Smith (3d Edw. Ch. Eep. 538) the Vice-Chan- 
 cellor said : Receivers were allowed in mortgage cases with great 
 caution, and only when the security was clearly inadequate, or 
 the rents had been pledged for the debt. The amount of the 
 rental was the best test of adequacy or inadequacy. 
 
 Chattel Mortgages. — ^In Patton vs. The Accessory Transit Co. 
 (4 Abbott, 23T) an order appealed from to the General Term was, 
 that E. P. C, upon filing an undertaking in a certain sum, 
 with approved sureties, be appointed receiver, and as such take 
 possession of the four steamships named ; and that the parties 
 having possession deliver them up. Mortgagees, whose mort- 
 gages had become forfeited, were in possession. The court held, 
 that to appoint a receiver over them, except in case of necessity, 
 to preserve the rights of other parties, would be to impair the 
 obligation of a valid contract, and was beyond the power of the 
 court. 
 
 In Bayan vs. Fellows (28 Barbour, 452) it was held that a 
 receiver would not be appointed over a mortgagee of chattels in 
 possession, who swore that there was a balance due to him. Nor 
 would a receiver be appointed to sell the property and keep the 
 proceeds until accounts were settled between the parties. The 
 mortgagor had a claim against the mortgagee, which would be 
 the subject of a set-oflf. 
 
 ' Thomas vs. Bridgstocke, 4 Russell, 64. 
 
§ 244.] EEOEIVEES. 479' 
 
 Yendor and vendee. — In a suit for specific performance, while 
 the title is in a course of investigation, the court will appoint a 
 receiver. 
 
 In Boehm vs. "Wood (2 Jac. & Walker, 236) the property con- 
 sisted of buildings and offices, on which it would be necessary to 
 effect insurances, and of ornamental grounds, which required con- 
 siderable attention and expenditure. A receiver was appointed, 
 reserving the question at whose expense it should be. 
 
 The same case was again before the court (1 Turner & Eussell, 
 332), and as the purchaser was compelled to take the title, the re- 
 ceiver was considered as his receiver. 
 
 In Metcalf vs. Pulvertoft (1 Yesey & Bea. 180) there was a 
 voluntary settlement on a wife ; then a conveyance by the settlor 
 to the plaintiffs. The wife was in possession. The purchasers filed 
 a bill to restrain the defendants from setting up a legal estate to 
 bar an action at law, for possession, an account of rents, and a 
 receiver ; which was granted. 
 
 Joint tenants, c&c. — The court, as a general rule, will not inter- 
 fere between joint tenants, or tenants in common, to appoint a 
 receiver, because a suit for partition is open to them. 
 
 Thus the rule was stated in Tyson vs. Fairclough (2 S. & St. 
 142), and Sir John Leach expressed a doubt whether, even in the 
 case of an actual exclusion, the court would interfere. 
 
 Limatios. — Pending proceedings for the appointment of a com- 
 mittee, if protracted, or urgent necessity exists, a receiver of the 
 property may be appointed. (In the matter of Heli, 3 Atk. 635 ; 
 in the matter of Kenton, 5 Binney, 613.) 
 
 Mr. Edwards, in his work on Eeceivers (p. 426), adds to these 
 cases that of In the matter of T. W. "Wallis, before Chancellor 
 Jones, in 1827, where the assistant register was appointed provis- 
 ional receiver of the estate and effects of the supposed lunatic. 
 
 Infcmts. — Upon a bill filed in behalf of an infant, and the court 
 being satisfied that the property is in danger, a receiver will be 
 granted. (Anon., 1 Atkyns, 489 ; Ex parte "Whitfield, 2 Atk. 
 315.) 
 
 It has been held that the receiver of an infant's estate should 
 not have his recognizance discharged until a year after the infant 
 had attained his age. 
 
 In Hicks vs. Hicks (3 Atkyns, 274) a receiver had been ap- 
 
480 EEOEIVEES. [§ 244. 
 
 pointed of an infant's estate, who had no guardian, with directions 
 to lay out the surplus rents on goTernment or other securities, 
 which he had neglected. He was charged with interest on the 
 surplus. 
 
 He had settled accounts with the infant two days after the 
 latter came of age, giving him copies of the accounts passed be- 
 fore the Master, delivering up vouchers, and paid over the bal- 
 ance appearing, which was accepted. Lord Hardwicke treated 
 this as of no weight whatever. 
 
 In the matter of Yan Home, an infant (7 Paige, 46), upon an 
 application to discharge the guardian and have his bond given 
 up, the Chancellor said it was not the practice of the court to 
 order the guardian's bond to be surrendered immediately upon 
 the infant's coming of age, although he had settled his account. 
 The ward was entitled to a reasonable time to investigate the 
 account, and surcharge and falsify the same. One year was 
 usually allowed for that purpose. 
 
 Subdivision 2. " After judgment, to carry the .judgment into 
 effect, &c. — ^The next clause of the 244th section authorizes the 
 appointment of a receiver " after judgment, to carry the judg- 
 ment into effect." 
 
 This clause may be considered in connection with the first 
 clause of the 3d subdivision : " After judgment to dispose of the 
 property according to the judgment." 
 
 It was a common course of practice before the Code, upon 
 bills filed to set aside a conveyance or transfer of property, brought 
 by a judgment-creditor with an execution returned unsatisfied, 
 that the decree appointed a receiver, and dii-ected a transfer or 
 conveyance to him, and that he sell the property. 
 
 The leading case of The Chautauque Bank vs. Eisley (19 N. Y. 
 Eep. 369) is sufficient to establish this proposition. The bill was 
 filed in September, 1838, against an assignor and assignee, to set 
 aside an assignment. On the 1st of November, 1838, a decree 
 was pronounced declaring it fraudulent, and directing the assignor 
 to convey the estate to a receiver. He conveyed to the receiver 
 on the 5th of January, 1839, who sold to one White, under whom 
 the defendant was in possession as his tenant. The plaintiff 
 claimed by virtue of a sheriff's deed, made May 30th, 1840, under 
 
§ 2M.J EBCEIVEES. 481 
 
 .a judgment against the same debtor recovered by one Adams, 
 before the bill was filed, but after the other judgment. 
 
 " The appropriate object of a bill in chancery, so far as relates 
 to lands in which the debtor has a legal estate subject to the stat- 
 utory lien of judgments against him, is fully obtained when a 
 •decree is pronounced clearing away the fraudulent obstruction to 
 the remedy by execution. If the court, however, proceeds further, 
 and directs, first, an assignment by the debtor to a receiver, and 
 then a sale by the latter for the purpose of satisfying the debt, 
 the purchaser will undoubtedly acquire a title (2 Selden, 236). 
 The fraudulent conveyance being annulled, the receiver, under an 
 assignment to him, takes the title, which he can convey to a pur- 
 •chaser. But that title rests upon the debtor's own conveyance, 
 and has no relation to the judgment. 
 
 " ISTo creditor, however, having a statutory lien by judgment, 
 could be compelled to take the equitable remedy. He may stand 
 upon his lien, and the means which the law has given him to en- 
 force it. He may sell upon his execution, and the purchaser will 
 have a right to impeach the conveyance." 
 
 In The Chautauque Bank vs. "White (2 Selden, 236) it was laid 
 down as a well-settled rule of the Court of Chancery, that it had 
 power upon a bill of a judgment-creditor to set aside a fraudulent 
 conveyance, to direct a transfer of the lands to a receiver by the 
 grantor and the grantee, pending the suit, and, after decree, to 
 direct a sale of the property by him, and the proceeds to be ap- 
 plied in payment of the judgment. 
 
 In a case before the author at Special Term of the Superior 
 Court, the action was for the settlement of partnership accounts. 
 All the creditors had been paid. The accounts between the part- 
 ners were adjusted and balances ascertained. There remained 
 some property outstanding, chiefly debts due the firm. A receiver 
 was appointed in the judgment, to get in the residue of the prop- 
 erty and apply it according to the provisions of such judgment. 
 This second subdivision and the first clause of the third subdivi- 
 sion warrant this. 
 
 Other cases may be imagined in which such an appointment 
 
 would be the regular and fitting course to execute the judgment. 
 
 For example, if an annuity was charged upon a particular fund, 
 
 such as the rents and profits of land, a receiver might often be 
 
 31 
 
4:82 RECEIVEES. [§ 244» 
 
 necessary or convenient to carry out a judgment establishing the 
 lien and directing payment. 
 
 The ancient English practice for enforcing a decree was a se- 
 questration of the disobedient party's property till he complied. 
 A receiver may often be resorted to under this clause for a similar 
 purpose. See the cases cited in the note to Franklin vs. Colquhon, 
 3 Swanston, 389, et seq. 
 
 Section 289, however, provides for the not unfrequent case 
 of a decree for delivery of possession of real or personal property. 
 The sheriff can take and deliver it. 
 
 In Hilliker -ys. Hathorn & Taylor (Special Term Superior 
 Court, March, 1860 — Hoffman, Justice), the plaintiff had been 
 appointed receiver by the Supreme Court upon supplementary 
 proceedings on behalf of a judgment-creditor. He brought his 
 action in the Superior Court, under authority given by an order 
 of the Supreme Court, to set aside as fraudulent an absolute 
 assignment of leasehold property by the defendant Hathorn to 
 the defendant Taylor. She set up in her answer that the assign- 
 ment was to secure her the sum of about $800, in which Hathorn 
 was indebted to her. 
 
 It was found by the court on the trial that she had been fully 
 paid her demand, by rents received or with which she was justly 
 chargeable. In settling the judgment, the form of which was 
 contested, it was declared that the assignment in question was, as 
 regards the judgment and executioh of the creditor, null and void 
 as a transfer of all the right and title of the defendant Hathorn, 
 and that, as a mortgage or security in the nature thereof, it was 
 to be deemed and adjudged fully paid and discharged, so far as 
 concerned such creditor ; that the defendants in the action should 
 assign to the plaintiff, as such receiver, all and each of their re- 
 spective right, title, and interest in the leasehold property ; should 
 surrender possession of any portion thereof in their or either of 
 their actual possession ; that the tenants in possession do pay their 
 rents to such receiver ; that he collect a sufficient sum out of such 
 rents and profits to pay the costs of the action and of his appoint- 
 ment, and the amount due upon the judgment and execution, 
 with interests and costs in the action in which such judgment 
 was obtained ; and that, after satisfaction of the same, he surren- 
 
§ 244.] BECEIVEES. 483 
 
 der such premises, and all possession thereof, and reassign the 
 same, and all his title therein acquired under and by virtue of 
 the judgment (that in the Superior Court), or any proceedings 
 had thereunder, to the said Mary Taylor. 
 
 The rental was enough in that case to keep down the ground- 
 rent, taxes, and other outgoings, and to pay the debt in a year. 
 There was a prior mortgage, whose rights were not and could 
 not be affected. 
 
 In Field vs. Salter (Special Term, Superior Court, 15th Feb., 
 1859 ; General Term, 15th June, 1861), a receiver had been ap- 
 pointed upon proceedings taken by one judgment-creditor ; but, 
 before such appointment, though after the order of examination, 
 another judgment-creditor had commenced an action against the 
 debtor and his assignee, to set aside an alleged fraudulent transfer 
 of property. 
 
 The judgment declared the lien and set aside the transfer ; 
 and appointed the receiver under the proceedings, receiver in the 
 action, with a direction for an assignment to him, and that he 
 dispose of the same and pay the judgment. 
 
 In Myer vs. Mohr and wife, June, 1861, the whole issue being 
 referred to a referee, he gave a decision setting aside a fraudulent 
 conveyance of a house and lot to the wife, and that a receiver 
 should be appointed to receive a conveyance from the husband 
 and wife, and to carry the judgment to be entered into effect by 
 a sale of the property. A motion was made to the court, and a 
 receiver appointed by it, and the judgment was then entered, 
 with the receiver named in it, and the usual directions. 
 
 In this connection section 287 may be adverted to, that real 
 property adjudged to be sold should be sold by the sheriff, or a 
 referee appointed for that purpose. I have always supposed this 
 section relates to cases in which the court is directly authorized 
 by statute to order a sale of real estate, such as mortgage and 
 partition cases. See Hoffman's Practice, vol. 1, p. 133 ; ibid. p. 
 185. 
 
 Again, even where a receiver has been appointed pendente 
 Zife, the judgment should direct his continuance or appoint a new 
 one, if such services are still necessary to carry it out. Strictly, 
 a decree in favor of a party supersedes a receiver, although the 
 
484 EECEIVEES. [§ 244. 
 
 practice has arisen for convenience of obtaining an order or notice 
 for his discharge." 
 
 Subdivision 3. — (a) "After judgment, to dispose of the property 
 according to the judgment." 
 
 See the observations and cases upon this clause under the 
 previous subdivision, No. 2. 
 
 (b) " To preserve property pending an appeal." 
 
 The second clause of the third subdivision of the section au- 
 thorizes the appointment of a receiver to preserve property during 
 the pendency of an appeal. And, by section 336, it is provided 
 that, where the judgment appealed from is for the assignment or 
 delivery of documents or personal property, the execution shall 
 not be stayed, unless the things be brought into court, or placed 
 in the custody of such officer or receiver as the court shall appoint, 
 or the undertaking therein prescribed be entered into. I do not 
 know of any case upon this point. I presume section 336 ex- 
 plains it. 
 
 (c) Execution unsatisfied, &c. 
 
 The last clause of this third subdivision is, " when an exe- 
 cution has been returned unsatisfied, and the judgment-debtor 
 refuses to apply his property in satisfaction of the judgment." 
 The second clause of section 292 provides for proceedings in such 
 a case ; and, by section 298, the judge may also, by order, appoint 
 a receiver of the property of the judgment-debtor, in the same 
 manner and with the like authority as if the appointment was 
 made by the court, according to section 244. 
 
 It would seem, therefore, competent for the court to appoint 
 a receiver, after being satisfied of the refusal of the debtor to ap- 
 ply his property, which could be upon affidavits on a motion. 
 But the course is, I believe, universally pursued under the 292d 
 and 298th sections. I have not known of a case of such an ap- 
 pointment strictly by the court. 
 
 That subject is considered fully under the head of 'Receivers 
 on supplementary proceedings. 
 
 Subdivision 4. Cases of corporations. — The fourth subdivi- 
 
 ' Daniel's Prac, vol. 2, p. 1582 ; Gibson vs. Lord Mountfort, Seton on Decrees, 330; 
 Gilbert vs. Whitmarsh, cited 2 Daniell, 1629 ; 2 Haddock's Chy. Practice, 298, ed. 
 1837. 
 
§ 244.J EEOErvEES. 485 
 
 sion of the section provides, that a receiver may be appointed 
 [1] " in the cases provided in this Code, and by special statutes,, 
 when a corporation has been dissolved, or is insolvent, or in im- 
 minent danger of insolvency, or has forfeited its corporate rights ; 
 [2] and in like cases of the property within this State of foreign 
 corporations." [3] Eeceivers of property within this State of 
 foreign corporations shall be allowed the same commission as is 
 allowed by law to the trustees of the estate of absconding, con- 
 cealed and non-resident debtors. 
 
 1. Cases provided in the Code. — The writ of quo warranto, 
 and proceedings by information in the nature of quo warranto, 
 are abolished ; and the remedies heretofore obtainable in those 
 forms may be obtained by civil actions under the provisions of 
 this statute. (Code, section 428.) 
 
 The 429th section directs that the Attorney-General may pro- 
 ceed against a corporation, when the Legislature shall so direct, 
 for the purpose of vacating or annulling its act of incorporation, 
 or any renewal thereof, when procured upon fraudulent sugges- 
 tion, or concealment of a material fact by the persons incorpo- 
 rated, or by some of them, or with their knowledge and consent. 
 Section 430 enacts, that an action may be brought by the Attor- 
 ney-General in the name of The People, on leave granted by the 
 Supreme Court, or a judge thereof, for vacating the charter, or 
 annulling the existence of a corporation, other than municipaly 
 in five specific cases, viz. : 
 
 1. When it shall offend against any of the provisions of the 
 act, or acts, creating, altering, or renewing such corporation ; or, 
 
 2. Shall violate the provisions of any law, by which such cor- 
 poration shall have forfeited its charter by abuse of its powers. 
 
 3. "Whenever it shall have forfeited its privileges or franchises, 
 by failure to exercise its powers. 
 
 4. Whenever it shall have done, or omitted, any act which 
 amounts to a surrender of its corporate rights, privileges, and 
 franchises. 
 
 5. Whenever it shall exercise a frauchise or privilege not 
 conferred upon it by law. 
 
 By section 442, if it be found that a corporation has forfeited 
 its corporate rights, privileges, and franchises, judgment shall be 
 rendered, that the corporation be excluded from such corporate 
 
486 EEOEIVEES. [§ 244. 
 
 rights, privileges, and franchises, and that the corporation be dis- 
 solved. 
 
 And by section 444, when such judgment shall be rendered 
 against a corporation, the court shall have the same powers to re- 
 strain the corporation, to appoint a receiver of its property, and to 
 take an account, and make distribution thereof among its credit- 
 ors, as are given in Article three. Title four. Chapter eight, of the 
 third part of the Eevised Statutes. Those provisions relate to the 
 voluntary dissolution of corporations. (See 2 E. S. 467.) . 
 
 It is, then, only after judgment under these sections, that a 
 receiver may be appointed. 
 
 2. Special statutes. — The next clause of this subdivision of 
 the section is, where, by special statutes, a corporation has been 
 dissolved, or is insolvent, or in imminent danger of insolvency, 
 or has forfeited its .corporate rights. 
 
 Under the head of "Injunctions" {a/nte, p. 263 eases'.) the provis- 
 ions of our statutes are stated in regard to corporations when insol- 
 vent, or violating their charters, or otherwise infringing the law. 
 
 It may be stated that generally, when an injunction can be 
 had, a receiver may be appointed. 
 
 The 41st section (2 E. S. 464) of the act as to " proceedings in 
 equity against corporations" provides " that, upon such applica- 
 tion being made" (for an injunction), " and in any stage of the 
 proceedings thereupon, the court may appoint one or more re- 
 ceivers to take charge of the property and effects of such corpora- 
 tion, and to collect, sue for, and recover the debts and demands 
 that may be due, and the property that may belong to such cor- 
 poration; who shall, in all respects, be subject to the control of 
 the court." 
 
 Such receiver shall possess all the powers and authority con- 
 ferred, and be subject to all the obligations and duties imposed, 
 in article third of this title, upon receivers appointed in case of 
 the voluntary dissolution of a corporation. 
 
 This third article (2 E. S. 468, 469) provides, in section 65, 
 for the appointment of one or more receivers of the estate and 
 effects of a corporation voluntarily seeking a dissolution. Section 
 66 directs who may be receivers, and the security to be given. 
 Section 67 enacts, that such receivers shall be vested with all the 
 estate, real and personal, of such corporation, from the time of 
 
§ 244.] EECEIVEES. 487 
 
 their having filed the security before required, and shall be 
 trustees of such estate for the benefit of the creditors of such cor- 
 poration, and of its stockholders. And, by section 68, such re- 
 ceivers 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 Eevised Statutes. 
 
 These powers are found (2 E. S. p. 41) in sections 1 to 65. 
 
 The receiver of an insolvent corporation represents both cred- 
 itors and stockholders, and may assert their rights when affected 
 by a fraudulent or illegal act of the institution. 
 
 In Gillet, Keceiver, vs. Moody (3 Comstock, 479) a receiver 
 of a bank organized under the general banking law succeeded in 
 an action to set aside an agreenient and transfer of certain securi- 
 ties to one of its directors. 
 
 In Talmage vs. Pell (3 Selden, 328) a receiver of. a banking 
 association was permitted to repudiate an illegal purchase of 
 State stocks, and to disaffirm an assignment of mortgages made 
 thereupon. 
 
 The case of The Attorney-General vs. The Life and Fire In- 
 surance Co. (4 Paige, 224) is a striking example of this principle. 
 A petition was presented by the receivers appointed under the 41st 
 -section of the act of proceedings against corporations in equity, 
 stating the advertisement for creditors and claimants — that cer- 
 tain claimants upon what was known as bonds issued by the com- 
 pany had presented their demands, which had been objected to 
 by stockholders and certain admitted creditors ; that such claim- 
 ants and the receivers had agreed upon referees in the manner 
 prescribed by the statute (2 E. S. 46, § 19). Certain proceedings 
 had taken place before the referees ; but the parties there con- 
 testing had agreed upon a plan of distribution. As there were 
 many stockholders who had not consented to such arrangement, 
 some of whom desired the question of the validity of the bonds 
 to be brought before the court, the receivers prayed the direction 
 of the court in the matter. 
 
 The Chancellor said that they should not allow any claim 
 which could not have been recovered against the corporation 
 either at law or in equity. They were directed to proceed before 
 the referees to procure a final decision upon the validity of the 
 •claims. 
 
488 EECEIVEES. [§ 244. 
 
 This was done, and the decision of the referees was obtained, 
 declaring the instruments were illegal and void, furnishing no 
 evidence of a valid debt against the company. On exceptions, 
 the Chancellor sustained the decision. See Attorney-General vs. 
 Life and Fire Ins. Co., d Paige, 470. 
 
 As to all legal transactions, however, which would be sus- 
 tained as to the company, or its creditors, the receiver is fully 
 bound. For such purposes he stands as the representative of the 
 company. He is as much, bound by a settlement which the com- 
 pany was authorized to make, as was the company itself. (Hyde 
 vs. Lynde, 4 Comstock, 387.) 
 
 By an act of the 5th of April, 1849 (the act to enforce the 
 responsibility of stockholders), stated particularly under the 
 head of " Injunctions," when the judge has made an order 
 declaring the corporation or association designated in the act 
 to be insolvent, and shall restrain the company and its officers as 
 directed, he shall immediately appoint a receiver of the property 
 of such corporation or association. (Sect. 9, Session Laws, 1849, 
 ch. 226.) 
 
 And, by section 10, one or more stockholders may apply to a 
 judge of the Supreme Court for an order, declaring the company, 
 or association insolvent, or in imminent danger of insolvency. 
 
 The 11th section, as modified by the act of March 15, 1855, 
 and other sections, prescribe the powers and duties of a receiver 
 in such proceedings. It is not thought necessary to state them 
 in detail. No counsel or receiver would act under them without 
 carefully considering the language. It will be sufficient to advert 
 to the authorities expounding the act. 
 
 In the Empire City Bank (18 IST. Y. Rep. 199) it was held, 
 among other things, that the proceeding of a receiver, under the 
 act to ascertain the debts and liabilities, is ex parte, and his re- 
 port is not conclusive upon the stockholders, or other parties ; but 
 the whole question is open to litigation before the referee, who is 
 to make the apportionment of the unsatisfied debts, and ascertain 
 the persons liable therefor. 
 
 In The Reciprocity Bank (22 N. Y. Rep. 9) the court put a 
 construction upon some of the provisions of this statute. In the 
 matter of The HoUister Bank (23 N. Y. Rep. 508), Justice Selden 
 states that it was decided in substance in this case, that for a re- 
 
§ 244.J EECEIVEES. 489 
 
 ceiyer to make a dividend among the creditors, and proceed 
 against tlie stockholders, while he had in his hands assets which 
 it is in his power to convert into cash within the most extended 
 time allowed by the act for making the dividend, would be a vio- 
 lation of the spirit of the act, and in conflict with the general 
 scope and tenor of its provisions. 
 
 In The Matter of the HoUister Bank (23 N. Y. Eep. 608), the 
 bank had been organized under the general banking law. It was 
 declared insolvent in 1857, and a receiver appointed. 
 
 Among other points ruled in the Court of Appeals, it was held 
 that it was the duty of a receiver, under this act, to declare 
 a dividend within one hundred days after his appointment, 
 and for that purpose to collect and sell all the assets not in litiga- 
 tion, or to show, in respect to choses in action not in litigation, 
 an order of a judge postponing the sale. Such order is not to 
 operate to postpone a dividend out of the funds actually in hand. 
 
 The act was not intended to authorize proceedings to compel 
 payment by the stockholders, until all the assets of the bank 
 readily convertible into cash should have been converted and the 
 avails distributed. 
 
 Although the general object was that the assets should be first 
 applied, as the primaiy fund, yet the creditors were not to be de- 
 layed beyond six months in obtaining payment from the stock- 
 holders. If there is sufficient reason for postponing a sale of as- 
 sets, the stockholders must contribute to the debts, and be reim- 
 bursed out of the assets when sold. 
 
 The receiver who has assets on hand, consisting of choses in 
 action not in litigation, cannot make, a dividend with propriety, 
 until he has applied to a judge and taken his direction as to a sale. 
 He has power to sell at auction every thing, except choses in ac- 
 tion, withoxit the authority of a judge. , 
 
 By a law of March 19, 1852 (Sess. Laws, ch. 71), it was pro- 
 vided (section 1), that any receiver heretofore appointed by any 
 court in this State, by virtue of Section 36, Ch. 8, Tit. 4, Art. 2, 
 Part 3, of the Revised Statutes of this State (2 E. S. 457, of pro- 
 ceedings in equity against corporations), shall have and possess 
 all the power and authority, and be subject to the same obliga- 
 tions and duties, as are provided in Article 3, Title 4, Chapter 8, 
 Part 3, of the Eevised Statutes of this State, in relation to re- 
 
490 EECBIYEES. [§ 244. 
 
 ceivers appointed in case of the voluntary dissolution of a corpo- 
 ration. 
 
 By section 2, in case the corporation is a mutual insurance 
 company, the receiver shall have power, under the authority and 
 sanction of the court appointing him, to make such assessments 
 On the premium notes belonging to the corporation as may be 
 necessary to pay the debts of the corporation, as the directors are 
 authorized to make. Notice must be given in the manner pro- 
 vided in the charter ; and the receiver shall have the like rights 
 and remedies, upon and in consequence of the non-payment of 
 such assessments, as are given to the corporation or directors by 
 the charter. 
 
 The receiver is authorized, by section 3, to receive a voluntary 
 surrender of all policies issued by the corporation, in all cases 
 where, by the charter, the directors are authorized to receive the 
 surrender of, or cancel, such policies. 
 
 And, by section 4, the court by which any such receiver may 
 have been or shall be appointed is authorized, upon a proper action 
 instituted for that purpose by the receiver, to examine, by a ref- 
 erence or othei'wise, into the proceedings and acts of such corpo- 
 ration. If it shall appear that the officers or directors have mis- 
 applied, or improperly disposed of, the funds, property, or effects 
 of such corporation, it shall be lawful for the court to decree that 
 such guilty officers or directors pay the same to such receiver, 
 and to enforce the decree by such process as may be necessary. 
 
 In Bangs vs. Dunckinfield (18 N. Y. Eep. 592) it was de- 
 cided — 
 
 1. That this act was a public and general act, and not un- 
 constitutional in its operation upon a corporation not before dis- 
 solved by a final judgment. 
 
 2. That an assessment made by a receiver of a mutual in- 
 surance company under an order of the court, made on his appli- 
 cation, without notice, stands on the same footing as one made 
 by the board of directors, and is not conclusive as a judicial de- 
 termination upon the person assessed. 
 
 It was no objection to such an assessment, or to the notice 
 thereof, that the persons called upon to contribute are apprised 
 of the amount of their liability only by a statement of the rate 
 per cent, at which the premium notes in force at a particular 
 
§ 244r.J EEOEIVEES. 491 
 
 date are respectively assessed. It is enough if the makers of the 
 notes are furnished with the data for computing the amount. 
 
 But where the assessment and notice imposed two rates of 
 
 ■ assessment— ^a smaller rate on what were termed " large notes" 
 
 and a larger on " small notes" — and no criterion for determining 
 
 what the terms meant, or in which class the defendant's note 
 
 would fall, it was held inoperative for uncertainty. 
 
 This case related to the Genesee Mutual Insurance Company ; 
 and in Bangs vs. Gray (2 Kernan, 477) it was held,-under the 
 charter of that company, that a member was liable upon his de- 
 posit note for losses in the proportion which that note bore to the 
 aggregate of deposit notes which were collectable, and legally sub- 
 ject to assessments for such losses. He was bound to pay an 
 assessment made upon his note to meet a deficiency of funds to 
 pay losses arising from the inability of other members to pay the 
 proportion assessed upon their notes. The obligation to con- 
 tribute among the members of such companies resembled that 
 which prevailed among several sureties for a common principal. 
 The rule in equity was to divide the Avhole loss among the sol- 
 vent sureties. 
 
 In Savage vs. Medbury (19 N". Y. Eep. 32) the Empire State 
 Mutual Insurance Co. had been organized under the act of 1849. 
 The note in question had been gi-^en as a deposit or premium 
 note. It was payable in such portions, and at such time or times, 
 as the directors may, agreeably to their charter and by-laws, re- 
 quire. Upon the insolvency of the company, the plaintiff had 
 been appointed receiver, on the application of a creditor, under 
 sections 89, &c., of proceedings against corporations in eqitity. 
 He sued upon the note without any precedent assessment. It 
 was held that, under section 13 of chapter 406 of 1858 (the act 
 under which the company was incorporated), an assessment was 
 a necessary condition for the maintenance of an action. These 
 premium notes were to be collectable only on assessments for 
 losses, and expenses incurred, during the time of the existence of 
 the corresponding agreements to insure. Though the company 
 was insolvent, it did not follow that the defendant would be bound 
 to pay the whole amount of his note. The receiver could not 
 sustain an action except under the circumstances in which the 
 company could have done so. 
 
492 
 
 RECEIVEES. [§ 244. 
 
 In the matter of John Berry, receiver of the Atlas Ins. Co. (26 
 Barbour, 55), it was held that the appointment of a receiver of an 
 insolvent insurance company took effect from the time of granting 
 an order for a reference to appoint a receiver. Fr(5m that mo- 
 ment no act could be done affecting the property of the corpora- 
 tion, either by the corporation or its creditors. 
 
 But we must notice, that, by section 71, all sales, assignments, 
 &c., " made after the filing of the petition for the dissolution, 
 were absolutely void." The company could do nothing with its 
 property after that period. In the interval, no one was compe- 
 tent to interfere with it. A*nd when a receiver was appointed, the 
 property could scarcely be said to have vested in him by rela- 
 tion back, but vested in him at his appointment, and had con- 
 tinued in the corporation at large, prohibited from being parted 
 with, after the petition for a dissolution. 
 
 By an act of April 21, 1862 (Sess. Laws, ch. 412), provision 
 is made for a reference and proceedings under it, in case of a dis- 
 agreement between the receiver of an insolvent or dissolved mu- 
 tual insurance company, in the settlement of any demand or claim 
 against any member or stockholder, or any other person. 
 
 By an act of January 22d, 1842, it was declared, that 
 receivers of moneyed institutions shoiild be entitled to the 
 same commissions for their services as are now allowed by 
 law to executors and administrators; and no greater or other 
 commissions or compensation shall be received or retained by 
 them. 
 
 By an act of April 24, 1845 (Sess. Laws, ch. 87), any pur- 
 chaser, from the receiver of a banking corporation, of any chose in 
 action belonging to the assets of such corporation, may prosecute 
 the same in his own name in all cases where by law the said suit 
 could be prosecuted in the name of such receiver. 
 
 By an act of April 28, 1845 (Sess. Laws, ch. 112), any receiver 
 appointed by virtue of an order or decree of the Court of Chan- 
 cery may take and hold real estate, upon such trusts and for such 
 purposes as the court may direct, subject to the further order or 
 direction of the court, from time to time, in relation to the dispo- 
 sition of such real estate. 
 
 By section 2d of the same act, receivers, and committees of 
 lunatics and habitual drunkards, appointed by any order or de- 
 
§ 244.] EEOBIVBES. 493 
 
 cree of the Court of Chancery, may sue ia their own names for 
 any debt, claim, or demand transferred to them, or to the posses- 
 sion and control of which they are entitled as such receiver or 
 committee ; and when ordered or authorized to sell such demands, 
 the purchaser thereof 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 may direct. 
 
 By another act of March 15, 1855 (Sess. Laws, ch. 69), the 
 eleventh section of the act of April 5, 1849 (the act to enforce the 
 responsibility of stockholders, &c.), was amended so as to read : 
 " Every receiver appointed according to this act, after giving se- 
 curity, shall take into his possession all the property, effects, 
 books, papers, accounts, and demands against such corporation or 
 association, including the securities, if any, which have been de- 
 posited with the superintendent, belonging to such corporation or 
 association, excepting therefrom so much of the same as may be 
 necessary to enable the superintendent of the banking department 
 to pay and redeem tlie outstanding circulation of such corporation 
 or association. He shall immediately give notice, by publication 
 in such newspapers as the superintendent or any justice of the 
 Supreme Court shall direct, requiring the creditors of such corpo- 
 ration or association to exhibit and establish their demands before 
 him within thirty days from the time of his appointment." 
 
 " Such receiver shall possess all the powers of receivers of cor- 
 porations under the 3d Article of Title 4 of Chapter 8, Part 3, of 
 the Revised Statutes, in respect to the settlement of all demands 
 exhibited to them, and in all other respects, except as herein other- 
 wise provided ; and all such powers now conferred by law on 
 trustees of insolvent debtors as may be applicable ; and shall be 
 subject to all the duties and obligations by law imposed on re- 
 ceivers of corporations, except as herein modified." 
 
 Abatement of suits. — By an act of the 26th of April, 1832 (Sess. 
 Laws, ch. 295), the dissolution of a corporation by a decree of the 
 Court of Chancery, or by the expiration of its charter, or other- 
 wise, shall not abate any suit or proceeding in favor of such cor- 
 poration which shall have been pending at the time of such dis- 
 solution ; but all such suits or proceedings may be continued by 
 the receivers who shall have been appointed for such corporation 
 by the Court of Chancety, or by the trustees on whom the estate 
 
494 EECEIVEKS. . [§ 244. 
 
 and effects of such corporation shall have devolved, in the name 
 of such corporation, or in the names of such receivers or trustees 
 who may be substituted as plaintiffs, under the direction of the 
 court in which the suit shall be pending, and subject to such or- 
 der as the court may deem expedient, in relation to the payment 
 or security of costs. 
 
 By section 2, whenever a receiver of the property or effects of 
 a corporation has been appointed before its dissolution, or after- 
 wards, new suits may be brought and carried on by any such re- 
 ceivers, either in their own names, or in the names of the corpora- 
 tion for which they shall liave been appointed ; but no new suit 
 shall be brought in the name of a corporation after it shall have 
 been dissolved, or after the expiration of its charter. 
 
 By section 3, no suit commenced in the name of any such re- 
 ceiver shall be abated by his removal or death ; but the same 
 may be continued in the name of his successor, or of the corpora- 
 tion, if the charter has not expired or been dissolved, as may be 
 directed by the court in which the suit shall be pending. 
 
 On the 17th day of April, 1858, an act was passed, entitled "An 
 act to declare and extend the powers of executors, assignees, re- 
 ceivers, and other trustees, and to protect the rights of creditors 
 and others against frauds, and for other purposes." (Session Laws 
 1858, ch. 314.) 
 
 " Section 1st. That any executor, administrator, receiver, as- 
 signee, or other trustee of an estate, or the property and effects of 
 an insolvent estate, corporation, association, partnership, or indi- 
 vidual, may, for the benefit of creditors or others interested in the 
 estate or property so held in trust, disaffirm, treat as void, and re- 
 sist all acts done, transfers and agreements made, in fraud of the 
 right 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. 
 
 " § 2d. That every person who shall, in fraud of the rights of 
 creditors and others, have received, taken, or in any manner in- 
 terfered with, the estate, property or effects of any deceased per- 
 son, or insolvent corporation, association, partnership, or individ- 
 ual, shall be liable in the proper action to the executors, adminis- 
 trators, receivers, or other trustees of such estate or property, for 
 the same, or the value of any property or effects so received or 
 
§ 244.] EECEIVEES. 495 
 
 taken, and for all damages caused by such acts to any such trust 
 estate. 
 
 " § 3d. That any indorser or other surety, and any assignee, 
 executor, administrator, or other trustee, shall be entitled to and 
 allowed to recover, from his principal, or cestui que trust, all neces- 
 sary and reasonable costs and expenses paid or incurred by him 
 in good faith, as surety or trustee in the prosecution or defence in 
 good faith of any action by or against any assignee, executor, ad- 
 ministrator, or other trustee, as such." 
 
 By an act of the 14th of April, 1860 (Sess. Laws, ch. 403), it 
 is enacted that the first section of the act of March 19, 1852, 
 " An act to facilitate the collection of debts against corporations," 
 be amended so as to read as follows ; 
 
 "Any receiver ^heretofore or who shall hereafter be appointed 
 by any court in this State, by virtue of Section 36, Chapter 8, 
 Title 4, Article 2, Part 3, of the Eevised Statutes of this State, 
 shall have and possess all the rights, power, and authority, and 
 be subject to the same obligations and duties, as are provided in 
 Article 3, Title 4, Chapter 8, Part 3, of the Eevised Statutes of 
 this State, in relation to receivers appointed in case of the volun- 
 tary dissolution of a corporation." 
 
 Foreign corporations. — The clause of this subdivision marked 
 2, provides for the appointment of a receiver of the property of a 
 foreign corporation. That marked 3, for the allowance to such 
 receiver of commissions {ante, p. 485). 
 
 The proceedings by attachment against a foreign corporation 
 to get a lien upon its property, is so generally the course, that I 
 have not been able to find a case under the clause now consid- 
 ered, in point. (See title Attachment, ante.) There can be no 
 doubt, however, that cases for the exercise of the power may 
 arise. 
 
 Thus, for example, in Tinkham vs. Borst (31 Barbour's Eep. 
 407), it was held, reversing the decision below (15 Howard, 204), 
 that a creditor, resident here, of an insolvent corporation located 
 in New Jersey, had an equitable lien upon its assets, which ena- 
 bled him to bring an action against a party who had fraudulently 
 possessed himself of assets of the company. A receiver might no 
 doubt have been appointed, in the progress of that action, if found 
 necessary. 
 
496 EEOEIVEES. [§ 244. 
 
 In Thomas m. The Merchants' Bank (9 Paige, 216) it was held 
 that a judgment against a foreign corporation, founded upon an 
 attachment of its corporate property, was a proceeding in rem., 
 and not such a judgment upon which an ordinary creditor's bill 
 could be founded. And after the property had become vested in 
 a receiver appointed by the court of the State where the corpora- 
 tion is situated, the property could not be reached by an attach- 
 ment here. 
 
 Receivers of a foreign corporation, appointed by the proper 
 tribunal of the State in which it exists, may sue in the courts of 
 our State to recover property. 
 
 Thus in Hunk vs. St. John (29 Barbour, 585), such an action 
 was sustained to set aside a. conveyance of land of the corpora- 
 tion, as fraudulent, and for a conveyance by the defendant to the 
 receiver. And see Hoyt vs. Thompson (1 Selden, 341). 
 
 Subdivision 6. By subdivision 5 of section 244, a receiver 
 may be appointed " in such other cases as are now provided by 
 law, or may be in accordance with the existing practice, except 
 as otherwise provided in this act. The period of the enactment of 
 this subdivision is before stated {ante, p. 466). 
 
 The case before noticed, of an appointment of a receiver during 
 a protracted contest, as to a committee of a lunatfc, and by peti- 
 tion, would be covered by this provision. 
 
 Some other cases may exist where the first subdivision would 
 not be sufficient. 
 
 Mode of appointment. — In the section as passed in 1849, it was 
 provided that " the court may appoint receivers according to the 
 present practice, except as otherwise provided in this act." 
 
 Under this, it was held that the practice of the Supreme Court 
 in equity, which was governed by that of the former Court of 
 Chancery, was the practice referred to, and was to control. 
 (Kemp vs. Harding, 4 Howard, 1T8.) 
 
 The subsequent amendments of the Code have not defined any 
 course of practice for the mode of appointment ; and the 469th 
 section — the healing section, as it may well be termed — will apply, 
 except when inconsistent with the provisions of the Code. 
 
 The course of proceeding in the Court of Chancery varied. 
 Sometimes an order of appointment was made by the court at 
 
§ 244:.] EECEIVEES. 497 
 
 once — the person being agreed upon, and security settled or 
 waived. In general, however, a reference was directed. Some- 
 times the order was to approve of a receiver, and report to the 
 court the name, security, &c. ; and the appointment was to be 
 made by the court. And frequently the order was for the master 
 to appoint a receiver. In the latter case, no act or order of the 
 court was necessary to make the appointment valid. It could be 
 reviewed, indeed, but only upon a distinct special application. 
 
 The subject was fully examined in the case of the Attorney- 
 General vs. Day (2 Mad. Eep. 253). The course of proceeding 
 was stated to be for the master to make a report approving of a 
 person as receiver, and of his sureties, and certifying that when 
 the recognizance is duly acknowledged, he will appoint such per- 
 son receiver. Upon that being done, he appoints the person, and 
 makes a report of such appointment. (See also Turner's Practice, 
 249 ; Seaton on Decrees, 316-320 ; 2 Fowler's Exch. Pr. 381 ; 
 Fairfield vs. Irvine, 2 Eussell, 152; In re, Eagle Iron Works, 8 
 .Paige, 385.) By our practice in Chancery, the approval of the 
 person, of the security and bond, and appointment, were all stated 
 in one report. 
 
 In Whetter vs. Schliper (Y Abbott, 92 ; 6 ibid. 123) it was 
 held that an order for a referee to appoint a receiver, and such 
 appointment, was regular in a partnership case. It was in accord- 
 ance with the Chancery practice which, for this purpose, con- 
 tinued in force.' 
 
 In a case at Special Term, before the author as a Judge of the 
 Superior Court (November, 1858), a case was made of a partner 
 ■continuing to employ the funds of the firm in business after the 
 dissolution. The partner was appointed receiver on condition 
 that he gave and perfected the security directed, by a certain time, 
 with other directions as to his keeping an account, &c. 
 
 In Steele vs. Sturges (5 Abbott, 442), in a partnership case, 
 the order was by the court, that J. C. be appointed receiver of all 
 the property of the firm ; but before entering on the discharge of 
 his duties, he execute a bond with two sureties, &c. After the 
 order, and before the security was given, the sherifi' levied on the 
 property. The title of the receiver was held to be superior. 
 
 " Special Term Common Pleas — Hilton, Justice. 
 32 
 
498 EECBIVEES. [§ 244. 
 
 In Wood vs. Lambert (K'ov. 1854, Special Term Superior 
 Court — Hoffman, Justice) it was held, that an appointment by a 
 referee in proceedings under section 298, was void. The judge 
 was to appoint a receiver. The whole authority was conferred 
 upon a judge, and not upon the court. He could not delegate it. 
 He could, under section 300, order a reference to report evidence 
 or facts, but that was all. "Who was a proper person to be ap- 
 pointed, and the proper security, were facts as to which a refer- 
 ence could be ordered. 
 
 One consideration upon this subject has always seemed to the 
 author of importance. The cases in which references may be or- » 
 dered are expressly defined by the Code. The conclusion has 
 seemed irresistible, that a reference cannot be ordered except in 
 such cases. 
 
 Under section 2T1, subd. 3, a reference may be ordered when 
 a question of fact other than upon the pleadings, shall arise, upon 
 motion or otherwise, in any stage of the action. Other cases are 
 provided for in sections 246, 269, and 287. No warrant for an 
 appointment by a referee is to be found in either of these cases. 
 
 Section 469 expressly declares that the present rules and prac- 
 tice, inconsistent with the Code, are abrogated ; but where con- 
 sistent, they shall continue in force. The practice in question has 
 seemed to me at least more inconsistent than consistent with 
 these provisions as to references. 
 
 It deserves notice, that the clause of section 144, in the Code 
 of 1849, was, that the court may appoint receivers according to 
 the present practice ; and the language of section 278 is, that the 
 judge may appoint in the same manner as if the appointment was* 
 made by the court, according to section 244. The language now 
 is f "A receiver may be appointed." But the heading of the sec- 
 tion is : " Powers of the court as to receivers," &c. 
 
 The author's practice, as. Judge in the Superior Court of 
 New York, was nearly uniform : after deciding that a receiver 
 was to be allowed, the parties were directed to appear, upon the 
 settlement of the order, to name a suitable person and the pro- 
 posed security. This question was settled at once in the great 
 majority of the multitude of cases before the author. The receiver 
 would be named, his security fixed, the bond executed, and one 
 order recite, that it having been decided that a receiver ought to 
 
§ 244.J EECEIVEES. 499 
 
 be appointed of the property in question, and A. B. having been 
 approved of as such receiver, and having executed a bond or un- 
 dertaking approved of by the court (or judge), as appeared by his 
 endorsement of approval on such bond now filed, thereupon it 
 was ordered that A. B. be, and he thereby was, appointed re- 
 ceiver of, &c. 
 
 Two or three days usually suflBced for getting through the 
 whole of this matter. 
 
 That a reference to inquire and report who is a proper person 
 to be appointed, and the security to be given, is proper, is quite 
 clear. In a case before the author (Superior Court, Sept. 1858), 
 
 the order was, that it be referred to as referee, to approve of 
 
 a proper person to be the receiver of the assets of the firm, and of 
 the security to be given ; and that upon the filing of his report, 
 with the undertaking or bond duly approved by him, and such 
 report becoming confirmed, the said person so approved be 
 deemed and appointed such receiver. 
 
 A notice of motion, a petition, or an order to show cause, may 
 be resorted to in order to obtain the decision of the court for a 
 receiver. Affidavits may be used to support the application ; but 
 if the case is presented upon a pleading, it cannot be changed or 
 enlarged by affidavits.' 
 
 By the rule in England, if one defendant has answered, and 
 another material defendant has not, the answer may be used as an 
 affidavit, and a counter affidavit may be used by the plaintiff. 
 (Kershaw vs. Mathews, 1 Eussell's Ch. Hep. 301.) In Goodman 
 vs. "Whitcomber (1 Jae. & "Walker, 501) the answer was not filed 
 on the day for which notice of motion was given, but was filed 
 before it was brought on. The plaintiff was allowed to use a sup- 
 porting affidavit. 
 
 Who may be a receiver. — A receiver must, of course, be an im- 
 partial person, having no interest hostile to that of any of the par- 
 ties concerned, and not liable to any suspicion of being controlled 
 by either party. He should have sufficient ability and knowledge 
 to manage properly the particular business entrusted to him. 
 
 Lupton vs. Stephenson (11 Irish Eq. Eep. 484) was the case of 
 a suit by a mortgagee for a sale, and a receiver had been ap- 
 
 ' Hayes vs. Heyer, &c., 4 Sandf. Supr. Ct. Rep. 485 ; Austin vs. Chapman, 11 Legal 
 Obeerrer, 113. 
 
500 EECEIVEES. [§ 244, 
 
 pointed by the master, and approved of by the Master of the EoUs. 
 An appeal was taken to the Lord Chancellor. The principal part 
 of the property was a mill and machinery, the cost of which had 
 been £60,000. It was unlet. The master had appointed the 
 nominee of the plaintiff, a person who did not understand the 
 care of machinery, but who had given a written undertaking to 
 follow the directions of another who did. The mortgagors had 
 named another who was entirely competent, but was connected 
 with them under certain trusts. On appeal, the report was sent 
 back for the master to select a person competent to undertake the 
 management of the machinery on his own responsibility. 
 
 In the same case, the Lord Chancellor expressed a strong dis- 
 approbation of appointing the defendant's nominee, which was 
 nearly the same as appointing the defendant himself. 
 
 He is appointed on behalf of all the parties who may, in the 
 course of the cause, appear entitled to the property or funds over 
 which he is placed. He is not the agent or officer of the plaintiff 
 or defendant.' The property is said to be in charge of the court, 
 through its officer." 
 
 He is appointed without regard to the person who may nomi- 
 nate him, although it is usual, when those proposed are equally 
 unobjectionable, to prefer the one named by the party applying. 
 (Lespinasse vs. Bell, 2 Jac. & "Walk. 436 ; Edwards on Receivers, 
 2d Ed., p. 87.) 
 
 A party to the action is frequently appointed to the office, 
 upon giving security, and acting without compensation. 
 
 In Blakeney vs. Defaur (15 Beavan, 40) the order was for a 
 reference to the master to appoint a receiver of partnership prop- 
 erty, with liberty to each party to propose himself as such re- 
 ceiver, without salary. On appeal, the order was varied by 
 appointing the defendant receiver, without salary, on giving the 
 usual security. 
 
 In Hubbard vs. Guild (1 Duer's Super. Ct. Eep. 662) the court 
 considered that where one partner was insolvent, the other a de- 
 fendant, being solvent, and of unquestioned capacity and integ- 
 rity, ought to be appointed receiver. 
 
 ' Davis vs. The Duke of Marlborough, 2 Swanston, 126 ; Delany vs. Mansfield, 1 
 Hogan, 234; Iddings vs. Brewer, 4 Sandford's Ch. Rep. 417. 
 ' Ibid. 
 
§ 244.] EEOEIVEES. 501 
 
 In Deake vs. McCarthy (9 Abbotts' Rep. 16T, n.), Chief Jus- 
 tice Bosworth said, that if the allegations against the plaintiff, as 
 to a misappropriation, had been fully answered, he would hare 
 done in the case as was done in Blakeney vs. Dufaur, or appoint 
 the plaintiff receiver, without salary, on giving pi'oper security. 
 It was for the interest of the parties to have the affairs of the firm 
 closed by a party who was familiar with them. As it was, he or- 
 dered a reference to appoint a receiver, with liberty to the plain- 
 tiff to propose himself to act, without a salary. The referee was 
 also to report in respect to the business of the firm, which the re- 
 ceiver should be permitted to prosecute or finish. 
 
 In Meaden vs. Sealey (6 Hare, 620) liberty was given by the 
 order for either party to propose himself as receiver. 
 
 Security. — The Code has not prescribed that security must be 
 given, nor its extent or form. The former practice will be the 
 rule, although it is presumed that the sixth rule of the Supreme 
 Court will apply to bonds or undertakings given upon this ap- 
 pointment. 
 
 It sometimes happens, as where the parties concur in naming 
 a receiver, the court will appoint him without security, upon his 
 own bond only.' 
 
 The security is, in general, to be in a recognizance, in the case 
 of rents and profits, double the gross annual amount of rental or 
 value ; and in case of personal estate, double its value. The lim- 
 itation in the case of rents and profits seems regulated by the 
 fact that the receiver is bound, and the recognizance recites the 
 obligation, to account annually, or as often as the court shall 
 direct.' 
 
 Two sureties, together with the receiver, are required by the 
 ordinary practice of the court ; ' and, as before observed, I appre- 
 hend the 71st rule would regulate the question of sufficiency. 
 
 If the amount is large, and the receiver is unable to find two 
 sureties who can qualify, the court, on special application, may 
 direct three or four persons to be admitted as sureties for the full 
 
 ' Eidout vs. Earl of Plymouth, Dickens, 68 ; HUbert vs. Hilbert, 3 Merrivale, 681 ; 
 Abbott m. Crawford, cited Smith on Receivers, p. 15, upon a written consent. 
 ' Smith on Receivers, 14; 2 Fowler's Ex. Pr. 380. 
 = Meath vs. Lord Orrery, 3 Atk. 237 ; 2 Fowler, 380. 
 
502 RECErvEES. [§ 244. 
 
 amount, requiring them to qualify respectively for a proportionate 
 share.' 
 
 The bond or undertaking should be to the people." It should be 
 executed and acknowledged according to the 71st rule, and should 
 be approved in writing by the officer, and filed with the clerk. 
 
 "Where an order was made by the court, that A. B. be ap- 
 pointed receiver of a partnership upon his filing a bond, with 
 sureties, to be approved by the parties or a master, and the bond 
 was executed and duly approved, but through inadvertence was 
 not filed, an order was made directing it to be filed nwncpro Umc, 
 and such order was affirmed on appeal.' 
 
 The whole effect of the order as to the sureties was left unde- 
 termined. 
 
 In Manners vs. Fuze (11 Beavan, 31) the Master of the Rolls 
 would not dispense with security where the application was in 
 the regular course for an appointment by the court, though the 
 parties were content to dispense with it. But he said that the 
 parties might appoint a receiver themselves, and then if they 
 asked that he might act without giving security, it might possi- 
 bly be done. He said also that this was precisely the course fol- 
 lowed in Ridout vs. The Earl of Plymouth (Dickens, 68), as ap- 
 peared by the Registrar's book. 
 
 In Tybee vs. Tybee (17 Beavan, 683) a married woman and 
 infants were, it seems, concerned in the property which was in 
 question ; and the court refused to dispense with security, though 
 the parties to the record consented. 
 
 Proceedings on a reference. — A reference relating to the ap- 
 pointment of a receiver, of mere approval at any rate, is allowed 
 under the third subdivision of section 271. The Code then (sec- 
 tions 272, 814, 421) and the rules (rule 32) regulate the proceed- 
 ings, as far as they contain any directions ; and the old practice 
 in chancery prevails, where they are silent. (See the notes to Yoor- 
 hees' ed. of the Code, 1860, p. 366, &c. ; Edwards on Receivers, 
 2d ed., p. 82, &c. ; Tillinghast & Shearman's Prac, p. 750, &c.) 
 
 ' Bani of Ireland vs. Magrath, Smith on Eeceivers, 15 ; Bennets Practice in the 
 Master's Office, p. 95, u. 
 
 • See the form, Hoffman's Master in Chancery, p. 376. 
 
 ' Whiteside vs. Pendegrast, 2 Barb. Ch. Rep. 412. See Anon., 3 Atk. 520; Doune 
 vs. Lewis, 11 Vesey, 601 ; Jesson vs. Brewer, Dickens, 370, as to the general rule 
 upon entering orders mine pro tunc. 
 
§ 24:4.J EECEIVEES. 503 
 
 It is stated in these books of practice, that the report of ap- 
 pointment is not confirmed in the nsual mode, but may be revised 
 by a petition. ' Such undoubtedly was the chancery practice." 
 
 But it would seem that the 32d rule of the Supreme Court 
 applies to this case. In references other than for the trial of the 
 issues in an action, the report is to be filed, and a note of the day 
 of filing made by the clerk in a proper book, under the title of 
 the cause or proceeding, and the report becomes absolute, unless 
 exceptions are filed and served within eight days after service of 
 notice of the filing. 
 
 In Somers vs. Milliken (10th Nov., 1858, reprinted Yoorhees' 
 Code, 1859, p. 616), the following expoeition of the rule was made : 
 
 1. All such reports (other than those upon trial of the whole 
 issues) must be filed, and a note of the filing made by the clerk. 
 
 2. That in all cases where any of the defendants appear, so as 
 to be entitled to notice, such report cannot be confirmed until 
 eight days after service of notice of filing the same. 
 
 3. That all the parties who have appeared in the cause or pro- 
 ceeding may consent, in writing, to waive the delay of eight days, 
 and have the same confirmed at once. 
 
 4r. That in cases where no one appears for the defendant, the 
 report may be presented to the court for the final order of con- 
 firmation and judgment, without waiting eight days. 
 
 The rule in question was drafted by the author of the present 
 work ; and he supposed that there was thus provided one uniform 
 course of dealing with all reports, except those upon a trial of the 
 whole issues. 
 
 nights, Powers, and Mestrictions. 
 
 1. When property vests.— This point is fully considered un- 
 der section 298, as to receivers on supplementary proceedings, 
 and particularly the effect of the addition to section 298, made in 
 April, 1862. The weight of authority is, as to cases within this 
 244th section, strongly against the rule stated in Rutter vs. Tallis 
 (5 Sandf. Supr. Ct. Rep. 612), as to the relation back of an ap- 
 pointment to the date of the order. The cases of The JSTorth Am. 
 Gutta Percha Co. (9 Abbott, 79) ; of Rich vs. Loutrel (ibid. 356) ; 
 
 ' Edwards on Receivers, 2d ed., p. 95, <fec. ; Tillioghast & Shearman's Pr., p. 754. 
 = Matter of Eagle Works, 8 Paige, 386. 
 
504 EE0EIVEE8. [§ 244. 
 
 Voorhees vs. Seymour (26 Barbour, 569) ; and The Artizans' 
 Bank m. Tredwell (34 Barbour, 559), seem to settle the point in 
 the Supreme Court. 
 
 But the amendment is only as to appointments under the 
 298th section, on supplementary proceedings. As to other receiv- 
 ers, it seems to me the rule now is, that he becomes effectually 
 vested, as to personal estate, from the time the appointment is 
 perfected. As to real estate, I apprehend a conveyance is still 
 necessary. 
 
 2. Actions by. — A receiver ought not to institute an action 
 without the permission of the court which has appointed him. 
 
 In Merritt vs. Lyon (5 Paige, 125, and 16 Wendell, 410) the 
 point decided was, that the court had jurisdiction to restrain a 
 receiver from prosecuting a vexatious suit in the name of a third 
 person, without his consent, although the persons applying for the 
 restraint were not parties to the suit in which such receiver was 
 appointed. 
 
 In Phelps vs. Cole (3 Code Eeporter, 157) it was decided that 
 a receiver who prosecutes or defends an action, without leave of 
 the court first obtained, was liable for costs personally if he failed. 
 In Smith vs. "Woodruff (6 Abbott, 65) the rule was recognized- 
 A receiver had brought an action without leave having been ob- 
 tained. Judgment was entered against him for costs, and execu- 
 tion issued. A motion to set it aside was denied. He had pros- 
 ecuted the action at his own peril, and should be left to the 
 consequences. 
 
 The usual order in England is, that in case there shall be any 
 occasion to put any of the debts in suit for the fecavery thereof, 
 the same shall be done with the approbation of the master ; and 
 such person to be appointed is to make use of the name or names 
 of the parties for that purpose, who are to be indemnified out of 
 the estate.' 
 
 And in Ireland, an application is made for a reference to ascer- 
 tain whether any particular things in action should be put in suit ; 
 and if the action must be brought in the name of an executor, 
 &c., the master is to ascertain what indemnity should be given to 
 the person in whose name the suit would be instituted. (Smith 
 on Eeceivers, 165, 166.) 
 
 " Seaton on Decrees, 323, citing Harden vs. Glover. See, also, p. 326. 
 
§ 244.] EECEIVEES. 505 
 
 This course is rendered unnecessary with us by the act of 
 April 24, 1845, by which receivers may sue in their own names. 
 " Eeceivers 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 transfer- 
 red to them, or to the possession and control of whicli they are 
 entitled as such receiver or committee." (Sess. Laws, 90.) 
 
 Eeceivers, appointed under section 298, of a fraudulent debt- 
 or's property, are, by rule 92, empowered to sue for debts, and in 
 the name of the debtor, where necessary or proper. 
 
 A question has occurred to me, whether the act of April 24, 
 1845, was in force. It should be noticed that it applies only to 
 suits in relation to personal property. The 111th section of the 
 Code created the doubt, but by reference to section 113 it will be 
 seen that one exception to the rule of section 111 is, where a per- 
 son is expressly authorized by statute to sue. 
 
 But, as to ejectment, the question is not governed by the act 
 of 1845 ; and it seems that the former rule must prevail. (See 
 the statute as to the action of ejectment, 2 E. S. 303, § 3.) 
 
 In Green vs. "Winter (1 John. Ch. Eep. 60) a trustee was re- 
 strained by injunction from interfering with the trust estate, and 
 a receiver had been appointed. It became necessary to institute 
 actions of ejectment to recover possession of land. An order was 
 made authorizing the receiver to institute an action of ejectment 
 in the trustee's name, the receiver giving an indemnity to the 
 trustee for costs and damages.' (See, also, In the matter of Mer- 
 ritt, 5 Paige, 125.) 
 
 A party whose name is used in an action without his consent, 
 has an undoubted right to indemnity. The receiver, having the 
 sanction of the court, has an equally clear right that the fund in 
 his hands should bear all charges necessarily incurred. (See Mer- 
 ritt vs. Lyon, 16 Wendell, 405, 411, and the cases there cited.) 
 
 In Dacie vs. John (McClelland's Exch. Eep. 575) the court 
 refused to empower a receiver to sue for a debt, where the suit 
 would be oppressive to creditors, or it was unlikely that any fruits 
 would be derived from it. 
 
 The right to bring an action in his own name, to set aside a 
 fraudulent transfer of property, is unquestionably vested in a re- 
 ceiver. (See Porter vs. Williams, 5 Selden, 142, and the act of 
 April, 1858, before referred to.) 
 
506 EECEIVEK8. [§ 244. 
 
 3. Actions against. — A receiver should not be sued by a third 
 party, without leave of the court first obtained. If he is sued an 
 order to enjoin the proceedings may be obtained. 
 
 In Merritt vs. Lyon (5 Paige, 125) Chancellor Walworth 
 said : " The court will also, in its discretion, restrain third persons 
 from instituting proceedings at law against its officers, although 
 the persons instituting such suits are not parties to the suit in this 
 court." ' 
 
 In De Groot vs. Jay, Eeceiver (9 Abbott, 364) the defendant 
 was the receiver of an insolvent corporation ; the plaintiff brought 
 an action to enjoin him from enforcing two judgments, and to 
 have them set aside. He had not obtained liberty to sue. The 
 defendaat applied by a petition for a stay. This was denied ; but 
 on appeal the order was reversed, and a stay of proceedings 
 granted. It was declared, that in most cases claims against a 
 receiver, or the fund, could be adjusted, upon a special motion, 
 at a small amount of costs. 
 
 In Hubbard vs. Guild (2 Duer's Eep. 686) certain persons, 
 petitioners in the action, had obtained judgment against a 
 firm, composed of the plaintiffs, and Guild, one of the defend- 
 ants, on the 21st of April, 1852. They issued an execution, had 
 it returned unsatisfied, instituted a creditor's suit on the 2d of 
 July, 1852, and had a receiver appointed on the 21st of Sep- 
 tember, 1852. The plaintiffs in the present action were the two 
 partners and their assignees, under proceedings in Massachusetts? 
 taken against the firm as insolvents, the effect of which was, as 
 stated, to vest the whole property in such assignees. This action 
 was commenced on the 22d of May, 1862, and on the 4th of No- 
 vember, 1852, a receiver was appointed, who took possession. 
 
 The application by the judgment creditors was for the decla- 
 ration of their lien, and payment by the last receiver out of the 
 funds in his hands. It was held that this could not be done ; 
 that the proper course for them was to bring an action with leave 
 of the court against the receiver, with others, as advised, and thus 
 settling the right to a priority. Such liberty was given; and an 
 order made restraining the receiver from paying out the funds 
 without notice to the attorney of the applicants. But had a de- 
 
 ' See also Warral vs. Lloyd, 2 Molloy's Rep. 388. 
 
§ 244.J EE0EIVEK8. ■ 507 
 
 cree been made in the suit, under which all creditors could have 
 come in, and to which every creditor is quasi a party, the course 
 by a petition would be proper. Elliott vs. The United Insurance 
 Co. (7 Gills' Maryland Eep. 387), was an authority, and a valu- 
 able one, on this subject. 
 
 The omission to obtain leave to sue a receiver does not affect 
 the validity of the proceedings, nor even make a judgment irreg- 
 ular. The party should have been restrained, or, under certain 
 circumstances, could have been proceeded against as for a con- 
 tempt. (Chautauque Bank m. Eisley, 19 N. Y. Eep. 376. And 
 see a similar rule stated as to the committee of a lunatic. (Crip- 
 pen vs. Culver, 18 Barbour, 424.) 
 
 A receiver should apply to the court for leave to defend an 
 action. He may otherwise be personally liable fftr the costs, if 
 he fail. 
 
 This was ruled in Swaly vs. Dickson (5 Simons, 639). The 
 receiver defended an action which the court said would have been 
 enjoined had he made an application for that purpose. He had 
 no right to do any acts which might involve the estate in expense 
 without first applying to the court. He was refused his costs and 
 expenses attending the suit. 
 
 4. Interfering with possession of. — "It is well-settled, that 
 after a receiver has been appointed, and has taken the rightful 
 possession of the property, it is a contempt of the court for a 
 third person to attempt to deprive him of that possession by force, 
 or even by a suit or other proceeding against him, without the 
 permission of the court by which the receiver was appointed. 
 (Angell vs. Smith, 9 Yes. Eep. 335.) Where the receiver is in 
 possession of property upon which a third person has a claim for 
 rent, the proper course for the landlord is to apply to the court, 
 upon notice to the receiver, for an order that the receiver pay 
 the rent, or that the landlord be at liberty to proceed by distress 
 or otherwise, as he may be advised. And if t^ie claim is con- 
 tested, the court will permit the claimant to go before the Master 
 and be examined ^ro interesse suo. The same principles are ap- 
 plicable to every other interference with the possession of a 
 receiver, sequestrator, &c., who holds the property as the officer 
 of this court ; as his possession is in law the possession of the 
 court itself." (Chancellor Walworth in Noe vs. Gibson, 7 Paige> 
 513.) 
 
508 RECEIVEE8. [§ 244. 
 
 These remarks were made in a case in which a vessel, being 
 in the hands of a receiver, a landlord distrained upon her for 
 arrears of rent. The Chancellor said that the landlord ought to 
 have ajjplied to the court for an order that the receiver pay the 
 rent out of the proceeds of the vessel, as was done in Dixon vs. 
 Smith (1 Swanston, 457); and if the claim' for the arrears was 
 disputed, the court would give him leave to go before the Master 
 and be examined. 
 
 The party was ordered to restore the vessel, or an attachment 
 was to issue. 
 
 The course of the court as to an examination pro interesse 
 suo, is stated in Hoffman's Chancery Practice, vol. i., pp. 155-6. 
 But I apprehend that since the Code the proper mode of proceed- 
 ing is by a petition entitled in the cause, and a reference under 
 section 271, subd. 3, where an investigation in that manner is 
 necessary or convenient. 
 
 5, Employment of attorney, &c, — The rule is, that a receiver 
 may not employ the attorney or solicitor of either of the parties 
 to the action in which he is appointed. This rule is for the pro- 
 tection of the rights of such parties. If they have no objection, 
 he may employ the attorney of either to aid him in the discharge 
 of his trust. (Per Chancellor in Warren vs. Sprague, 4 Edw. Ch. 
 Eep. 417, n.) 
 
 6. Repairs and Improvements. — The general rule is undoubt- 
 ed that a receiver cannot, without the sanction of the court, 
 expend money in his hands in repairing, much less in improving, 
 the premises of which he has the charge. 
 
 Elliott vs. Clitheroe (6 Yesey, Jr., 801) is a leading authority. 
 The receiver had expended money in mason and plasterers' work, 
 and carpenters' work, all sworn to by him to be necessary and 
 reasonable to make the buildings tenantable. The Master of the 
 KoUs would not allow the amount on such a representation, but 
 referred it to the Jtfaster to inquire into the circumstances of the 
 expenditure, and whether the same was for the lasting benefit of 
 the parties entitled to the estates. Upon the report a strong case 
 was made, and the fact of the approbation of former trustees 
 proven. The amount was allowed. 
 
 In Tempest vs. Ord (2 Merivale, 56) the Lord Chancellor 
 said that formerly the court never permitted a receiver to lay 
 out money without a previous order. But now, where he had 
 
§ 244:.] EECEIVEES. 509 
 
 done so, it was usual to refer it to the Master to see if the trans- 
 action was beneficial to the. parties ; and if found to he so, the 
 receiver was allowed the money. An order was made to inquire 
 whether the buildings then being erected were fit and necessary, 
 and for the benefit of the several persons interested. 
 
 7. Letting property.— The usual order upon the appointment 
 of a receiver of real estate, contains a clause that the receiver 
 may let and sell the premises.' This authorizes only a letting 
 from year to year.' And such was the provision in the Chancel- 
 lor's rule of 1838. Eule 192. 
 
 If it is desirable to grant a lease for a longer term, a special 
 order must be obtained, on notice to the parties in the action. 
 
 In vs. Lindsay (15 Vesey, jr., 91), there was an order 
 
 of reference to determine what should be the term beyond which 
 a receiver should not be allowed to lease an East India estate. 
 
 In Lorillard vs. Lorillard (4 Abbotts' Eep. 210) an order of 
 the court had been obtained authorizing a lease by a receiver for 
 twenty years, unless certain annuitants should sooner die. 
 
 In Hobhouse vs. Hamilton (2 Sech. & Lefroy, 28) a tenant for 
 life, with a leasing power of lands devised, charged with payment 
 of debts, had made leases of the premises. A judgment creditor 
 got a decree which was in course of prosecution, and a receiver 
 was directed to let the lands for three years, without prejudice to 
 the claims under the leases, after the trusts of the will were sat- 
 isfied. 
 
 "Where premises consisted of a grist-mill not worth more than 
 £15 a year, and the receiver's affidavit stated that no solvent 
 tenant could be got for a term of three years, owing to the ex- 
 pense of fines, &c., and the want of repairs, the defendant consent- 
 ing, the Master was directed to let the premises for the term of the 
 natural life of the defendant, if it was found that he had power to 
 let for such a term, the defendant to join in the lease. (Saunders 
 vs. Eichards, cited Smith on Keceivers, p. 53.) 
 
 8. Tenants and distraining.— The order in England, and in the 
 State of New York, usually directs that the tenants pay rents 
 and attorn to the receiver of real estate.' 
 
 ' Seton on Decrees, p. 319 ; Smith's Receivers, p. 50, Ac. 
 ^ Morris vs. Elme, 1 Vesey, jr., 139. 
 
 " 1 Turner's Practice, 256 ; 2 Daniel's Pr. 1615; Morris vs. Mowatt, in Ch'y, N. T. 
 1831 ; 1 Hoffman's Ch. Prac. 444. 
 
510 EECEIVEES. [§ 244. 
 
 A written attornment should be obtained from the tenants by 
 the receiver. In such a case they may be distrained upon, where 
 the law of distress continues to prevail. And such distress may 
 then be made without a special order. (Pitt vs. Snowden, 3 At- 
 kyns, 750.) 
 
 In Bennet vs. Kobins (5 Carr & Payne, 379), Tindal, Chief 
 Justice, said : " A receiyer, appointed by a court of law, must be 
 considered in point of law as having a right of distress ; other- 
 wise the right to receive would be a mockery, for where the court 
 was not sitting and no order could be made, a tenant might re- 
 move his goods, and the rent could not be recovered." 
 
 The distress is to be made by the party having the legal title. 
 An attornment gives this to the receiver as against the tenants. 
 If there is a doubt who has the title, it is proper to apply to the 
 court for liberty to distrain and use the name of the party. 
 
 If the tenants, upon being served with a copy of the order of 
 appointment, refuse to attorn, an application should be made to 
 the court to compel them. Upon notice to them they can inform 
 the court whether they are tenants or not. (Eeid vs. Middleton, 
 Turner & Eussell, 455 ; Hobhouse vs. HoUcombe, 2 De Gex & 
 Smale, 208.) 
 
 When the owner of the estate is in possession of a part of the 
 premises, the course is to make an application that such owner 
 deliver possession to the receiver. The receiver cannot distrain 
 upon the owner, as he is not his tenant. (Griffith vs. Griffith, 2 
 Merivale, 401.) 
 
 When a party is in possession without his rent being fixed, 
 and a receiver is appointed, application should be made that an 
 occuption-rent be settled (by a reference if necessary), and that 
 the party pay such rent to the receiver.' 
 
 The usual order directs payment of rents in arrears, as well 
 as of those which are to accrue." 
 
 The statute of May 13, 1846 (Laws of N. Y., ch. 274) has 
 abolished the remedy by distress. By the third section, however, 
 a right to rents is given to a grantor or lessor in default of a suf- 
 ficiency of goods and chattels whereon to distrain, for the satisfac- 
 
 » Reid vs. Middleton, Turner & Kussell, 455. 
 
 ^ Simmonds vs. Lord Kinnaird, 4 Vesey, MY; 2 Daniel's Practice, 1606. 
 
§ 244.] BECEIVEES. 511 
 
 tion of rent due, upon certain conditions ; and the grantees of de- 
 mised premises or rents and the assignees of the lessor have the 
 same remedy given them. I presume a receiver would be in- 
 cluded in the terms. 
 
 In Lorillard vs. Lorillard (4 Abbott, 210) the court saj, that 
 the receiver should (in a certain event) immediately proceed to 
 eject the tenant and occupants under him, by an action to recover 
 the lands and their profits, or in such other way as he may be 
 advised. It was not proper then to say whether the court could 
 not give summary relief against the tenant, as one holding under 
 the court and subject to its jurisdiction. 
 
 9. Continuing and finishing business. — Although the general 
 rule and course of the court is, that a receiver shall promptly pro- 
 ceed to dispose of all the property when a sale is properly sought, 
 there are cases in which the interests of all parties require that a 
 business should be continued for a period of time, and especially 
 if necessary to finish up materials in process of being manufac- 
 tured. 
 
 In Crane vs. Ford (Hopkins Kep. 114) a receiver had run a 
 steamboat for two years. The court expressed disapprobation of 
 the course, and ordered a sale. 
 
 In Marten vs. Van Schaick (4 Paige C. E. 479) the partner- 
 ship effects were a printing establishment, and the subscription 
 list and advertising custom. The receiver was directed to sell 
 the establishment without delay, and to carry on the business in 
 the mean time, so that the good- will might be secured to the pur- 
 chasers. The defendants were allowed to superintend the edito- 
 rial department, under the direction of the receiver. 
 
 In Dayton vs. Wilkes (17 Howard's Pr. Eep. 510), where the 
 property was a newspaper, called Porter's Spirit of the Times, 
 the receiver was allowed a specified time to carry on the paper, 
 before he should sell the establishment. 
 
 And in McCarthy vs. Drake (9 Abbott, 167, n.) the referee was 
 directed to inquire and report what business the receiver should 
 be permitted to prosecute or finish, with his reasons therefor. 
 
 10, Removal. — In cases of misconduct or neglect of duty, a 
 receiver may be removed and another appointed. 
 
 Thus a receiver had neglected to render and pass his account, 
 and pay in the balance, as directed by the general order in Ire- 
 land. An attachment had issued against him, and he was in con- 
 
512 EEOEIVEES. [§ 244. 
 
 tempt. An order was made for his removal, and for the appoint- 
 ment of a new receiver, at the cost of the former. (Smith on Re- 
 ceivers, 189.) 
 
 Liberty may also be obtained, on notice to the sureties, to put 
 the bond in suit. (Ibid.) 
 
 A receiver having become blind, and incapable of performing 
 the duties of his office, the court discharged him, and allowed 
 him the costs of the application and of vacating his recognizance.' 
 
 Mr. Edwards" cites the case of Purdy vs. Rapelye, 1835, 
 where the receiver was obliged to go to Europe on business, to 
 remain a year. The Chancellor, on petition, allowed him to pass 
 his accounts, be discharged, his recognizance vacated, and a new 
 receiver appointed. The costs of the application were allowed 
 out of the fund. 
 
 If a receiver has been appointed over property unnecessarily 
 large for all the purposes of the action and rights of the parties, 
 his power may be restricted to what will be sufficient. (Magrath 
 vs. Veitch, 1 Hogan, 110.) 
 
 In Beers vs. The Chelsea Bank (4 Edw. Eep. 277) the Vice- 
 Chancellor said that it was by no means a matter of course to 
 discharge a receiver on his own application. He must show some 
 reasonable cause why he should be relieved from duties he has 
 voluntarily assumed. 
 
 In Griffith vs. Griffith (2 Merivale, 401) there was a petition to 
 remove a receiver, the parties joining in it. The Lord Chancel- 
 lor held that this fact made no difference-. The sureties could not 
 be discharged from the obligations they had assumed. The ap- 
 plication was only to be listened to when it was for the benefit of 
 the parties in the cause, or sonaething of that kind. 
 
 Upon the death of a receiver his representatives may have an 
 order that his accounts be passed and recognizance vacated. 
 (Smith on Receivers, 191.) In Gordon vs. Badcock (6 Beavan, 
 157) this course was taken. 
 
 In Jenkins vs. Bryant (7 Simons, 171) the court declared that 
 it had not power to compel the executors of a receiver to bring 
 in and pass the accounts, and pay the balance out of the assets. 
 
 11. Abatement. — The abatement of a cause by the death of 
 
 ' Richardson vs. Wood, 6 Mad. Ch. Rep. 266. 
 ' On Receivers, p. 661, 2d edition. 
 
§ 244.] KECEIVBES. 613 
 
 parties, or otherwise, does not affect the oflQce of a receiver. 
 (Smith on Receivfers, p. 189.) 
 
 In Woods vs. Creagh (1 Hogan, 174) it was decided that an 
 abatement by the death of a co-plaintiff, was not a ground for 
 discharging a receiver. There should be a motion that the plain- 
 tiff revive the cause in ten days, or the receiver stand discharged. 
 This authority is recognized by Chancellor Walworth, in McCor- 
 ker vs. Brady (1 Barb. Ch. Eep. 329, 346). 
 
 In Moore vs. The Marquis of Donegal (11 Irish Eep. 412) it 
 was held that the extension of a receiver of tenant for life (a 
 jiarty who had died) to the estate of the inheritance, was not pre- 
 Tented by the abatement. 
 
 12. Accounting.— The regulations in England and Ireland as 
 to the duty of a receiver to account, have long been fixed by gen- 
 eral orders. It is his duty, expressly enjoined, to pass them an- 
 nually, unless some other direction is contained in the order ap- 
 pointing him.' 
 
 The order of the 16th of December, 1792 (Beams' Orders, 464), 
 of the 23d of April, 1796 (ibid. 461), and Lord Lyndhurst's order 
 of 1828, are stated in Hoffman's Office, &c., of Masters in Chan- 
 cery, p. 157. Lord Eedesdale's order in the Irish Chancery of 
 1804, is also set forth, p. 160. It is to be found in 2 Sch. & Le- 
 froy, 732, Appendix. It is remarkable for its great practical 
 utility. 
 
 Chancellor Lansing, in 1806, adopted a rule upon this subject. 
 By the 45th of his rules, all guardians, receivers, and committeas 
 of lunatics, who ha'^e been or may be appointed by this court, if 
 the clear annual value of the estate committed to their manage- 
 ment exceeded the sum of $300, were once in every three years, 
 and if of less value, once in every two years, in the terms of 
 March and September, to exhibit to the court, and file with the 
 Register or Assistant Kegister, an account of their guardianships 
 or other trusts, and of the balance of moneys that might be then in 
 their hands respectively ; that the court might take proper order 
 for the disposition and improvement thereof. That any such 
 guardians, receivers, or committee, might, if disposed so to do, 
 Tender such account once in every year during either of said 
 
 ' Seaton on Decrees, 320, 324; Jefferys vs. Smith, ibid. 32S. 
 33 
 
514 EECEIVEES. [§ 244, 
 
 terms ; and that the Eegister or Assistant Register who should 
 enter their appointment, should, upon the appointment of any 
 guardians, receivers, or committees, furnish them with a certified 
 copy of the rule. 
 
 Chancellor Walworth, by the 154th, 155th, and 156th rules of 
 1830, carried out the principle of this rule, adding the important 
 provisions, that the Register or Assistant was to deliver to the 
 Chancellor or Yice-Chancellor, on the first day of term, a list of 
 those who had neglected to file their accounts for more than 
 three months after the limited time, that order might be taken 
 for their removal or prosecution ; and that the injunction master 
 in each circuit was to examine the accounts in January in every 
 year, and report whether they were correctly kept, &c. 
 
 In 1839, rule 156 was materially added to. 
 
 In the rules adopted in July, 1847, under the judiciary act, no 
 regulations of a similar character were adopted, and none now 
 exist. I am not aware of the reasons for this omission. 
 
 In practice before the author, orders have sometimes been 
 made, containing a direction that the receiver file his account 
 annually, from the date of his appointment, with the clerk ; that 
 all parties be at liberty to examine the same, and to apply to the 
 court for such order relating to the same, as might be proper. 
 No doubt an application, on notice to the receiver and the other 
 parties, may at any time be made for him to pass his accounts be- 
 fore a referee, and such order be made upon the report as shall 
 b^ proper. The author has known of several such applications 
 in the Superior Court. 
 
 It is quite common, in orders of appointment, to direct that 
 any surplus in hand, amounting to a certain sum, be from time to 
 time, as it shall accrue, paid into one of the trust companies in 
 which moneys of the court are placed. 
 
 A receiver not paying in balances as directed, may be moved 
 against for a commitment, or his bond may be put in suit. 
 
 In Davis vs. Craycraft (14 Vesey, 143), upon a motion to com- 
 mit a receiver who had not jpaid in a balance according to order, 
 the Lord Chancellor said that a doubt had been expressed whether 
 this course couid be taken. Authorities were cited, and he made 
 the order. In another case, on the same day, he made the order 
 that the receiver pay in by a certain day, or stand committed. 
 
§ 244.] EECEIVEES. 516 
 
 The first subdivision of section 1 of the statute relating to con- 
 tempts (2 E.. S. 534), warrants such a proceeding with us. 
 
 In the matter of Seaman (2 Paige's Ch. Eep. 409), the Chan- 
 cellor ruled that in cases of neglect of duties prescribed to guard- 
 ians, receivers, &c., by the rules, they might be proceeded against 
 by attachment, or the bonds would be delivered to the Attorney- 
 General to be prosecuted. He settled the form of an order appli- 
 cable to such cases. 
 
 A delinquent receiver is chargeable with interest on the bal- 
 ances in hand.' 
 
 He may also be removed for his default.'' 
 
 K a receiver puts the fund out of his control, so that other 
 persons shall be able to deal with it, he guarantees the solvency 
 of those parties, and becomes answerable for any loss that may 
 ensue. However good his intention, the parting with the control, 
 to the extent of giving that control to another, would be enough 
 to make him a guarantee of the fund. 
 
 This principle was laid down in Salway vs. Salway (2 E. & 
 Mylne, 215 ; 3 Clark & Finelly, 44). The receiver had agreed 
 with his sureties that the partner of one of them should be so far 
 associated with him, as that the moneys were to be deposited in 
 the names of the sureties and his own, and drawn out by checks 
 drawn by the partner, and signed by the receiver. In efi^ect this 
 was a veto or restriction upon the receiver's control of the de- 
 posits. 
 
 Chancellor Walworth, in the Utica Insurance Company vs. 
 Lynch (11 Paige, 620), laid down the following rules : " It was 
 the duty of a receiver to keep the trust moneys entirely separate 
 and distinct from his own money. If deposited in a bank, the 
 money should be deposited to a separate account, in his name as 
 receiver, to the end that the fund could be at all times identi- 
 fied and traced. 
 
 " If a receiver loans out such moneys, even temporarily, to his 
 friends or others it was a breach of trust. 
 
 " Like a trustee he will be charged with interest when he mixes 
 
 w 
 
 ' Fletcher vs. Dodd, 1 Vesey, jr. 85 ; vs. Jolland, 8 Vesey, n ; Potts m. 
 
 Leighton, 15 Vesey, 21i. 
 
 ' vs. Jolland, ut supra. 
 
516 EECEIVEES. [§ 244. 
 
 the trust moneys with his' own, and uses them indiscriminately, 
 although he makes no profit from such use. 
 
 " A trustee is not allowed to make any profit out of the funds. 
 If he employs them in trade, he will be charged with the whole, 
 profits. 
 
 " Stating the accounts with periodical rests, and compound- 
 ing the interest, is only a convenient mode adopted by the 
 court to charge the trustee with the profits supposed to have been 
 made, where the actual profit beyond simple interest cannot be 
 ascertained." _ . 
 
 13. Compensation. — The Chancellor, by rule 169, adopted the 
 compensation allowed to executors by the Revised Statutes as 
 that to be allowed to receivers. He was not, however, limited to 
 such an allowance as to receivers appointed before the rule. In 
 the case of the Receivers of the Life and Fire Insurance Compa- 
 ny, the amount allowed very greatly exceeded the statutory 
 amount. 
 
 In Howes vs. Davis (4 Abbotts' Eep. 71) Justice Clerk ad- 
 verted to the statutory provision (2 R. S. 93), and the Chancery 
 rule of 1839, and adopted the construction given to the act by 
 the Chancellor, viz., that one-half the specified rates was to be 
 allowed for receiving and one-half for paying out. 
 
 Where a clause was inserted in the order appointing a receiver 
 limiting his allowance to that given to executors and administra- 
 tors, he can have no greater amount, even although directed to 
 deposit the moneys collected from time to time, which he had 
 done. 
 
 If, however, he had rendered periodical accounts, in accord- 
 ance with the standing rule of the court, he might apply the 
 scale of rates to such accounts successively and separately. 
 
 And so, if annual rests were ordered to charge him with in- 
 terest. (Bennet vs. Chapin, 3 Sandf Supr. Ct. Rep. 673; in the 
 matter of the Bank of Niagara, 6 Paige, 213.) 
 
 He is entitled to commissions on the value of assets taken out 
 of his hands upon an order settling the suit. (Ibid., and In the 
 matter of De Peyster, 4 Sandf. Ch. Rep. 511.) 
 
 Where a rel^eiver had been appointed of an insolvent mutual 
 insurance company, it was held that he was entitled to commis- 
 sions on the whole amount of the premium notes, whether col- 
 
§ 244.] EEOEIVEES. 617 
 
 lected by him wholly, or only assessments upon them to pay the 
 debts, surrendering the rest.' 
 
 A receiver cannot be allowed counsel fees for his own services 
 as such ; but counsel fees paid to others for necessary advice and 
 aid in discharging his duties, may be allowed." 
 
 Nor will he be allowed a jper diem amount for special ser- 
 vices." If he act as attorney, he will be allowed the taxable fees.*^ 
 
 In the case of Malcom vs. O'Callaghan (3 Mylne & Craig, 52), 
 the subject of allowances to a receiver for extra services was 
 much discussed. It was held that his ordinary duty did not au- 
 thorize him to charge the expenses of journeys to, and of resi- 
 dence in, a foreign country, whilst prosecuting in that country a 
 suit which he was empowered to institute. The expenditure was 
 unauthorized by any previous order, and it turned out to be un- 
 profitable. 
 
 In re Montgomery (1 MoUoy, 419) was cited, where a receiver 
 instituted proceedings which, being wrong in form, he abandoned, 
 and then took other proceedings in which he was successful, he 
 was not allowed the costs of the abandoned proceedings, although 
 he had acted hona fide. 
 
 The allowance to receivers of corporations cannot exceed the 
 statutory allowance to executors, &c. (In the matter of the Bank 
 of Niagara ut supra). "Whether in other cases the court can now 
 go beyond the amount is a question I have not found decided. As 
 before observed. Chancellor Walworth made a far greater allow- 
 ance where the receivers were appointed before his rule. Whether 
 that rule is now to be deemed the practice in force, so that no 
 single judge could deviate from it, is perhaps a question. 
 
 14. Final Discharge. — The receiver continues until decree, 
 which usually disposes of his power, often superseding him, and 
 frequently continuing his ofiice to give effect to the decree. 
 
 Though it is stated in general terms that a receiver is super- 
 seded by a decree, unless expressly continued,' it is not to be un- 
 derstood that the decree of itself produces this result, unless it 
 contains a direction to that effect. 
 
 ' Van Beuren vs. The Chenango Mutual Insurance Co., 12 Barbour, 671. 
 " Ibid. = Ibid. ' Ibid. 
 
 * 2 Daniel's Pr. 1629. 
 
518 BECEIVEE8. [§ 244. 
 
 A motion or notice to all the parties should be made for that 
 purpose. This is at least the better practice. 
 
 In Gibson vs. Lord Montfort (Seton on Decrees, 330) the re- 
 ceiver was continued by the decree, with directions that his 
 accounts be passed. 
 
 In White vs. Westmeath (2 Molloy, 128, 133), the Lord Chan- 
 cellor said : " The court could say this (but could it duly say 
 more than this), when called on to dismiss the bill, that it wotdd 
 keep the fund, and give an opportunity to the incumbrancer to 
 file his original bill, and let the plaintiff, as he is entitled to, dis- 
 miss his bill." 
 
 And in Murray vs. French (2 Molloy, 497) the Lord Chancel- 
 lor held, that if prior creditors, parties in a cause, had claims on 
 an estate, and the court by appointing a receiver interferes with 
 -their rights, though the plaintiff may dismiss his bill, yet the 
 court will protect the rights of such creditors by continuing- the 
 receiver, putting the persons so protected under terms to file a 
 bill forthwith. 
 
 See also "Whiteside vs. Prendegrast (2 Barb. Ch. Eep. 472). 
 
 In Hubbard vs. Guild (2 Duer's Eep. 685) these cases were 
 <;ited ; and it was ordered that the receiver should not pay out any 
 moneys in his hands without notice to certain intervening parties 
 -who had petitioned for payment — such parties to be at liberty to 
 institute actions against the receiver as advised, and making such 
 other persons parties as they should see fit. 
 
 Upon proceedings supplementary to execution. 
 
 Section 292 of the Code has provided for three eases, in which 
 proceedings for enforcement of judgment, termed supplementary 
 to execution, may be resorted to before a judge, out of court. 
 One, upon the return of the execution unsatisfied, in whole or in 
 part, for the party to appear and answer concerning his property ; 
 another, after an execution against property has been issued, upon 
 proof that the judgment-debtor has property, which he unjustly 
 refuses to apply towards the satisfaction of the judgment ; and 
 lastly under circumstances of danger of the debtor leaving the 
 State or concealing himself, an order of arrest may be had, and 
 security obtained upon an examination. 
 
i§ 298.] EEOEIVEES. 619 
 
 Section 298. 
 
 Then by section 298 it is provided : 
 
 [l.J " That the judge may also, by order, appoint a receiver 
 -of the property of the judgment-debtor, in the same manner, and 
 with the like authority, as if the appointment was made by the 
 court, according to section 244." 
 
 [2.] "But before the appointment of snch 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 proceedings are so 
 pending, the plaintiff therein shall have notice to appear before 
 him, and shall likewise have notice of all subsequent proceedings 
 in relation to said receivership." 
 
 [3.] " 'No more than one receiver of the property of a judg- 
 ment-debtor shall be appointed." 
 
 [4.] " Whenever the judge shall grant an order for the ap- 
 pointment 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 
 Keceivers 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 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 as aforesaid." 
 
 [5.] " The receiver of the judgment-debtor shall be subject 
 to the direction and control of the court in which the judgment 
 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." 
 
 The Code of 1848 (§ 253) contained only the clause above 
 marked [1]. 
 
 In 1851 the clauses marked [2] and [3] were added ; and in 
 1862 those marked, [4] and [5]. The latter went into effect the. 
 13th of May, 1862. 
 
520 EECEIVEES. [§ 298> 
 
 [l.J The part of section 244 referred to in the first clause of 
 the present section, authorized the court to appoint a receiver 
 " when an execution has been returned unsatisfied, and the judg- 
 ment-debtor refuses to apply his property in satisfaction of the 
 judgment." 
 
 If creditors bill superseded. — There is much force in the argu- 
 ment that the power of the court to appoint a receiver, or to en- 
 tertain an action for the purpose of discovering and applying 
 property, similar to the ordinary judgment-creditor's bill of the 
 Chancery system, is restricted to the special case specified ; and 
 the 292d and 298th sections must be resorted to in other cases. 
 Some authorities go further, and deny the right to commence 
 such an action at all. 
 
 The cases are as follows : 
 
 In Quick vs. Keeler (2 Sandf. S. Ct. Rep.), and in Dunham 
 vs. Nicholson (Ibid. 636), it was held, that when the execution 
 was returned before the Code took effect, the old remedy by action 
 was to be pursued. Hammond vs. The Hudson River Iron and 
 Machine Co. (20 Barbour, 378), is a General Term decision, that 
 an action will lie against judgment-debtors and their alleged 
 fraudulent assignees. 
 
 In Taylor vs. Persse (15 Howard's Pr. 419) it was considered 
 by Justice Clerke, that by the operation of section 468 the former 
 judgment-creditor's suit, under the Revised Statutes, was super- 
 seded ; and proceedings under section 292 substituted therefor. 
 An action to set aside a fraudulent transfer was, however, clearly 
 proper. The learned judge considers that Quick vs. Keeler, and 
 Dunham vs. Nicholson {ut supra), tend to support this conclusion. 
 
 Lent vs. McQueen (15 Howard, 313) appears to be a decision 
 the other way, and Colton vs. Doughty (12 Howard, 45Y) is ex- 
 pressly so. 
 
 When title vests, — A receiver appointed in these proceedings 
 became, before the amendment of 1862, vested with the title to 
 personal estate, from the time of his appointment ; but it seems 
 not to real estate until a conveyance to him. 
 
 In Porter vs. Clark (5 Selden, 148) Justice Willard stated the 
 question to be, whether a receiver appointed under the sections 
 292 to 298 could, after perfecting his appointment, maintain an 
 action in his own name, to set aside an assignment of real and 
 personal property made by the judgment-debtor, on the ground 
 
§ 298.] EECErvBES. 521 
 
 of fraud, without having received an assignment from such 
 debtor. 
 
 The cases before the Code declaring the power to sue, when 
 the transfer was of personal property, were noticed, and the rule 
 recognized. It was admitted that before the Code real property 
 did not pass by the order, but an assignment was necessary. 
 
 The statute of April 28th, 1845 (Session Laws, 90) was also 
 noticed ; and Chancellor "Walworth's decision in Wilson vs. Wil- 
 son (1 Barb. Ch. Hep. 594), that the act was not broad enough to 
 transfer the title to real estate without an actual conveyance. 
 The judge considered, however, that the Code had removed this 
 difficulty, and the order operated to transfer real as well as per- 
 sonal property. 
 
 In Edmonston vs. Lyde (16 N. Y. Rep. 543), Justice Harris 
 uses language involving the proposition that an order operates to 
 transfer both classes of property. 
 
 Yet, in the Chautauque County Bank vs. Kisley (19 N. Y. Hep. 
 374), it is expressly stated, that although personal estate becomes 
 vested from the time and by virtue of the order, real estate is 
 only transferred by vii'tue of a conveyance to the receiver, which 
 the court has power to compel ; and in this way the satisfaction 
 is worked out. 
 
 And in Moak, Eeceiver, vs. Coats (33 Barb. 498) this propo- 
 sition was recognized as law by the General Term of the Sixth 
 District. Porter vs. Williams & Clark was commented upon and 
 distinguished. 
 
 We may conclude, that under these authorities a receiver, 
 without assignment, might impeach a fraudulent transfer by ac- 
 tion, and yet that, as to third parties and their rights, real estate 
 remains in the debtor until a conveyance. 
 
 See, also, as to personal estate and equitable interests, Lottimer 
 vs. Lord (4 E. D. Smith's Eep. 183) ; West vs. Frazer (5 Sandf. S. 
 Ct. Eep. 654); Wilson vs. Allen (6 Barbour, 542). 
 
 But the amendment of section 298, by the act of 23d of April, 
 1862, taking effect on the 13th of May, seems, for future cases, to 
 dispose of this question. It is provided that when the judge shall 
 grant an order for the appointment of a receiver of the property 
 of a judgment-debtor, the same shall be filed in the office of the 
 clerk of the county where the judgment-roll in the action, or 
 
622 EEOBIVEES. [§ 298. 
 
 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 Eeceivers 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 receiver named therein, and he 
 shall be vested in the property and effects of the judgment- 
 debtor, from the time of the filing and recording of the order as 
 aforesaid." 
 
 It cannot be doubted that the term properiy was meant to 
 include real estate. The definition of the word in section 464 
 includes property, real and personal. 
 
 There were some cases before the amendment of 1862, as to 
 the question of vesting, which deserve notice. 
 
 In the case of Steel m. Sturgis (5 Abbotts' Eep. 442), a case 
 of partnership, Clapp was, by order, appointed receiver of the 
 property of the firm, but before entering upon the discharge of his 
 duties he was to give security. Between the date of the order 
 and filing the undertaking, an execution was levied by the sheriff. 
 The title of the receiver was held paramount. 
 
 In Eutter vs. Tallis (5 Sandf. Supr. Ot. Eep. 612), it was laid 
 down, that when an order of reference is made, and a receiver 
 subsequently appointed, his title vests by relation from the date 
 of the order of reference, and attaches upon all the property to 
 which the receivership could properly extend, as if the receiver 
 had been named in the order. He would take priority over an 
 execution creditor, becoming such between the order of reference 
 and that of appointment. 
 
 In Lottimer ««. Lord (4 E. D. Smith, 183) it was held, that a 
 receiver when his appointment was complete, took title by rela- 
 tion to the order, as between the creditor prosecuting and the 
 debtors. This was a partnership case. 
 
 In Eich m. Loutrel (9 Abbott, 356) the Supreme Court dif- 
 fered from Eutter vs. Tallis, and considered that the rule was 
 fixed otherwise, by the General Term, in the case of The Ameri- 
 can Gutta Percha Co. (9 Abbott, 79). 
 
 In Voorhees vs. Seymour (26 Barbour, 581) an order was 
 made for an examination in April, 1860 ; and one appointing a 
 
§ 298.] EECEITEES. 523 
 
 receiver on the 6th of September, 1860 ; but the security required 
 was not filed until the 19th of September, 1860. The adverse 
 claimants relied upon a lien on the stock in question, asserted in 
 a suit commenced in July. 
 
 It was held, first, that the proceedings for an examination of 
 the judgment-debtor, created no lien on property ; and next, that 
 until an appointment of a receiver was consummated, no interest 
 passed. It was consummated on the 19th of September. 
 
 And in the Artizan's Bank vs. Treadwell (34 Barbour, 553), the 
 General Term ruled, that an order appointing a receiver could 
 not, as against third persons, date or relate back beyond its date. 
 It was irregular and improper to insert a clause in the order, giv- 
 ing it an effect back by relation. 
 
 I presume that the amendment of 1862 supplies here, also, a 
 definite rule ; that it is exclusive in its nature, and makes the 
 vesting dependent upon, and to date from, the filing and record- 
 ing of the order. 
 
 In Booth vs. Clark (17 Howard's U. S. Eep. 322), it was de- 
 cided that a receiver, appointed under a judgment-creditor's bill 
 in the State of New York, but without an assignment made to 
 him, could not sustain an action upon a claim of a debtor against 
 a foreign State. There were creditors of the judgment-debtor 
 contesting the receiver's right. 
 
 Whether the statutory assignment now created by the amend- 
 ment of 1862, would make any distinction in the result, may ad- 
 mit of very great doubt. And it seems that it would still be 
 prudent at least, to compel an assignment wherever it is practi- 
 cable. 
 
 Mode of appointing. — See this subject considered ante., title 
 " Mode of appointment," p. 496. I may observe here, that I 
 have always supposed an order of reference to appoint a receiver 
 in those cases, and an appointment by a referee, to be irregular if 
 not void. 
 
 If property must be discovered^— It has been held in some 
 cases that the creditor may have a receiver, although he has failed 
 to discover any property upon the examination of the judgment- 
 debtor. 
 
 In Myres' case (2 Abbott, 476) Mr. Justice Davies held that 
 it was well settled that proceedings under this chapter were a sub- 
 
524 EECEIVEKB. [§ 298. 
 
 stitute for a creditor's bill, as known under the former chancery 
 system. (Sale vs. Lawson, 4 Sandf. Eep. 718.) It was beyond 
 doubt that under the rule in Chancery a receiver would be granted 
 without any proof of there being property to protect. (Elood- 
 good vs. Clark, 4 Paige, 474 ; Browning vs. Betts, 8 Paige, 568.) 
 The language of the Chancellor in Fitzhugh vs. Everingham (6 
 Paige, 29) was also cited : 
 
 "In eases of this kind, as the defendant is enjoined from inter- 
 fering with the property himself, he can have no honest motive 
 for resisting the application for a receiver. For if he has prop- 
 erty it is for his interest that it should be preserved during the 
 litigation ; and if he has none, there will be nothing for the re- 
 ceiver to do, and the complainant must pay the cost of the ap- 
 pointment." 
 
 In Myres' ease the defendant was enjoined; and the order 
 was that T. H. B. be appointed receiver, on his giving security 
 in $500; that the defendant attend and execute an assignment of 
 all his property, debts, and effects which he had on the day the 
 injunction order was served." 
 
 In Webb vs. Overmann (6 Abbott, 92) the same learned judge 
 repeats this rule ; but some interests, though -sworn to be value- 
 less, were discovered in that case. 
 
 In the Superior Court, as far as the author's practice, and that 
 of his associates to his knowledge, extended, the course was dif- 
 ferent. But it was the course there, when the plaintiff had 
 wholly failed in discovering property, to discharge the injunction 
 order ; and hence the ground for appointing a receiver failed. 
 
 The Chancery jurisdiction, we are to remember, rested upon 
 sections [38] and [39] (2 E. S. 174) ; and the court could decree 
 satisfaction out of any property discovered by the proceedings in 
 Chancery. 
 
 But the allegations of the complaint were general as to the 
 debtor's possession of property. It was not necessary to specify 
 items of property. See the 189th rule of Court of Chancery, 
 and McElwain vs. Willis, 3 Paige, 505. 
 
 The Chancellor indeed, in New vs. Bame (10 Paige, 502), de- 
 cided, that an answer denying that the defendant had any property 
 or any interest in property or choses in action, was not enough 
 to entitle him to a dissolution of the injunction. 
 
§ 298.] EEOErvEKS. 525 
 
 Certainly, however, if the cause came to a hearing, and nothing 
 had been discovered, the bill would be dismissed, the injunction 
 fall, and the receiver, on a motion, be discharged. 
 
 IS'ow, the proceedings under these sections of the Code, not 
 only give an examination orally in lieu of the discovering part of 
 a bill, but allow the examination of witnesses in the same manner 
 as upon the trial of an issue. (§ 295.) 
 
 When the plaintiff, after resorting to these modes of inquiry, 
 or only to the examination, fails to discover property, the proceed- 
 ings fail, as a suit would have failed ; and the defendant must be 
 entitled to a dismissal. 
 
 Order not impeachable collaterally. — The regularity of an 
 order appointing a receiver cannot be -questioned collaterally ; for 
 example, in an action brought by a receiver, or any one deriving 
 title under him. 
 
 Thus, in Tyler vs. Whitney (12 Abbotts' Eep. 465 ; S. C. 33 
 Barb. 327), it was held that a third person sued by a receiver as 
 a debtor to the judgment-debtor, the latter having consented to 
 the appointment, could not avail himself of any irregularities 
 attending the appointment, which did nt)t affect the jurisdiction 
 of the court or officer who made the appointment. 
 
 One objection was, that the execution had been returned be- 
 fore the sixty days had expired. This could not be raised collat- 
 erally. It was only available on a motion to set aside the execu- 
 tion. If the debtor does not make the objection, no other person 
 could do so. And see vs. Levy (10 Abbott, 426). 
 
 It was held in Sacket vs. l^ewton (10 Howard, 561), a case 
 under the second clause of section 292, that the affidavit on which 
 the order was grounded was not a compliance with the statute so 
 as to confer jurisdiction, and an appearance and voluntary exam-* 
 ination did not waive the right to object. 
 
 Upon the subject of what amounts to a want of jurisdiction 
 which may be set up at all times, and is not waived by consent, 
 and what may be waived, or is personal, see the opinion in Bangs 
 vs. Deckinfield (18 JST. Y. Eep. 592). 
 
 [2.] By the next clause of section 298, the judge is to ascer- 
 tain, if practicable, whether any other supplementary proceedings 
 are pending against the judgment debtor, in which case the plain- 
 tiff therein is to have notice to appear, and notice of all subse- 
 quent proceedings. 
 
526 EECEIVEES. [§ 298. 
 
 There was no such clause in the Code until 1861. 
 
 The 194th rule of the Court of Chancery was similar in its 
 provisions to this clause of the Code. 
 
 In Todd vs. Crooke (4 Sandf. Sup. Ct. Rep. 694) it was ruled that 
 although other creditors were to have notice of the application for 
 a receiver, the Code required nothing more. It did not re- 
 quire that a copy of the examination which had been taken should 
 be served upon the other creditors, with the notice. 
 
 The defendant ought to have notice also. 
 
 [3.] Only one receiver. — By the next clause of this 298th 
 section, no more than one receiver of the property of a judgment 
 debtor shall be appointed. 
 
 Extending receiver. — By the 194th rule of the Court of Chan- 
 cery, where another suit was commenced after the appointment 
 of a receiver, the same person may be appointed in such subse- 
 quent suit, and shall give such further security as the master exe- 
 cuting the last order shall direct. 
 
 In Banks vs. Potter (Common Pleas, 21 Howard Rep. 469) the 
 judge said: " If proceedings supplementary be afterwards insti- 
 tuted upon judgments in other courts, the same receiver must be 
 appointed ; and the effect of the appointment is to give to the 
 creditors, in their proceedings, an equitable right to the distribu- 
 tion of the debtor's effects, which must be according to their re- 
 spective priorities." 
 
 In Irving vs. Waller (1 Hogan, 259) the Master of the Rolls 
 said : " "When two courts, possessing concurrent jurisdiction, are 
 called upon to adjudicate respecting the same property, it is im- 
 possible to prevent their clashing, iinless their proceedings are 
 regulated with reference to the respective priorities of the parties 
 before them." 
 
 [4.J The first clause of the addition of 1862 to this 298th sec- 
 tion, has been before stated and commented upon. {Ante, p. 521.) 
 
 It may be observed, that the language seems to imply that the 
 receiver does not become vested with the property until the order 
 is recorded as well as filed. An interval may sometimes occur 
 between the two acts. 
 
 [5.] The receiver of the judgment-debtor shall be subject to 
 the direction and control of the court in which the judgment was 
 obtained upon which the proceedings are founded; or if the judg- 
 ment is upon a transcript from justice's court, filed in County 
 
298.] RECEIVEES. 627 
 
 Clerk's office, then he shall be subject to the direction and control 
 of the County Court. 
 
 Before the amendment the receiver was subject to the control 
 of the judge appointing him. 
 
 Thus, in "Webber vs. Hobble (13 How. Pr. Eep. 382), Mr. Jus- 
 tice Smith says : " The proceedings supplementary to execution 
 were designed to supersede the creditor's bill of the Court of Chan- 
 cery, commonly in use before the Code. So far as the judgment 
 debtor alone is concerned, it suffices for that purpose. 
 
 "After the proceedings have been duly instituted, the jurisdic- 
 tion must remain until the examination of the debtor is completed, 
 and all orders made by the judge in respect to the property of the 
 judgment-debtor are fully executed. The receiver, too, must be 
 subject to the order of the judge. He may be required to account 
 for the property which may have come to his hands ; and I think 
 the jurisdiction of the judge must necessarily continue until the 
 judgment-creditor is paid, or all the funds or property in the hands 
 of the reteiver, applied on the judgment, are exhausted. 
 
 "Until the judge make the final order for the application or 
 appropriation of the funds in the hands of the receiver, his juris- 
 diction remains." 
 
 Security. — (See ante, under this head, p. 501.) 
 
 Whom the receiver represents. — By the 193d rule of the Court 
 of Chancery the receiver, upon a judgment-creditor's bill, was to 
 hold the property and effects of the debtor for the benefit of all 
 the creditors who had commenced or should commence similar 
 suits during the continuance of his trust, to be disposed of accord- 
 ing to their legal or equitable priorities. 
 
 He does not merely represent the debtor and his estate, but is 
 the trustee, acting for the court, to collect and preserve the prop- 
 erty for distribution among those persons who shall be adjudged 
 to be entitled, according to their rights and liens. 
 
 "The property is not deemed the property of the party in the 
 first proceedings, at whose instance he was appointed, but it is in 
 Gustodia legis for those who shall establish a right to it according 
 to their respective priorities." (Daly, First Judge, in Banks vs. 
 Potter, 21 Howard's Eep. 469.) 
 
 In Bostwick vs. Beizer (10 Abbotts' Eep. 197) the same rule 
 was stated. 
 
528 EEOEIVEES. [§ 298. 
 
 These priorities, under the course in chancery, were settled by 
 the respective dates at which the bills were filed. (Burrall vs. 
 Leslie, 6 Paige's Kep. 445 ; Beck vs. Burdell, 1 Paige, 305 ; Cor- 
 ning vs. "White, 2 Paige, SB'T.) 
 
 In Banks vs. Potter {ut supra) the learned judge states that 
 the order of distribution is according to the respective priorities 
 in obtaining the appointment of a receiver. He cites Kavanagh 
 vs. Murphy and others. 
 
 A judgment-creditor who had commenced an action to set 
 aside a transfer of property as fraudulent, making the assignor 
 and assignee parties, acquired a prior right to the property in 
 question over a judgment-creditor, obtaining an order for exam- 
 ining the debtor, which was served on the same day as the action 
 was commenced; and under which a receiver was appointed. 
 
 This was held in Field vs. Sands and others (G-en. Term Supe- 
 rior Court, June 1, 1861). The rule in chancery that the creditor 
 filing the first bill, was entitled, was noticed. It was held that 
 the proceedings against the debtor, and appointment of a'receiver 
 after examination, could not create a lien upon the assigned 
 property, the assignee not being a party. A judgment-creditor's 
 bill against the debtor alone would not give such priority. (1 
 Paige, 637.) And the supplementary proceedings could not affect 
 property vested in a third person. The receiver only obtained the 
 power of litigating the validity of the transfer by an action to be 
 brought. 
 
 The receiver who had been appointed on the proceedings was 
 appointed receiver in the judgment setting aside the transfer, and 
 an assignment directed to be made by the assignee, and that the 
 receiver sell the property and pay the amount. 
 
 In Yoorhees vs. Seymour (26 Barbour, 569) the court cite some 
 authorities, and say : " The implication from these decisions is 
 very strong, if indeed the conclusion is not irresistible, that until 
 the order for a receivership is made, and the appointment per- 
 fected, no interest whatever of the debtor passes to the receiver, 
 and no title to anything whatever is acquired by him. It would 
 be giving the naked order for an examination a very far-reaching 
 effect, to hold that all the equitable assets of the debtor passed 
 out of him eo instanti the order for his examination was made ; 
 and although there were no other party in existence who could 
 
§ 298.] EECErvEES. 529 
 
 take, they were to be held in abeyance until, perchance, at 8ome 
 time thereafter a receiver should be appointed." 
 
 The learned judge proceeds to say, that as between two or 
 more creditors who are upon the chase pedibus momibusque after 
 the equitable assets of the debtor, the one who procures the first 
 order may acquire an inchoate lien entitling him to ultimate 
 preference, provided he pursues his remedy diligently, and con- 
 summates his proceedings by the appointment of a receiver. 
 
 In the case of E,. D. Livingston, receiver (Jan. 1861, Special 
 Term Superior Court), he had been first appointed upon proceed- 
 ings under several judgments docketed the same day in the 
 County of Westchester. His receivership was subsequently ex- 
 tended, upon similar proceedings taken under other judgments 
 by different creditors at different times. The receiver brought 
 an action to set aside a conveyance of land in the County of West- 
 chester. He obtained a judgment declaring the conveyance void 
 as to the creditors and the receiver, and directing him to make 
 sale of the premises ; and after paying certain amounts, to retain 
 the balance for direction of the court. 
 
 Upon his petition it was held that the proceeds were to be di- 
 vided according to the dockets of the judgments creating liens 
 upon the lands. 
 
 It was observed, " that a judgment declaring conveyances null, 
 fraudulent, and void, and setting them aside in favor of creditors, 
 and especially in favor of the receiver in his own action, is, per- 
 haps, equivalent to a conveyance by the debtor. For the present, 
 it would be assumed to be so. 
 
 " But, in the interim, where is the title ? In the grantee, as far 
 as relates to the grantor and his heirs. But as to creditors, it 
 must be in the grantor. 
 
 "The provision of the statute is, that every conveyance of any 
 estate or interest in lands made with the intent to hinder, delay, 
 or defraud creditors, as against the persons so hindered, delayed, 
 or defrauded, shall be void. (2 E. S. 137, § 1.) 
 
 " In this view there was a legal lien upon the lands in West- 
 chester County, in favor of all the judgment-creditors whose judg- 
 ments were docketed in that county. (Code, § 282. See 2 E. S. 
 360, and Buchan vs. Sumner, 2 Barb. Ch. Eep. 165.) 
 
 " In the Chautauque County Bank vs. Eisley (4 Denio, 480), 
 34 
 
530 EBOErvEES. [§ 298. 
 
 Justice Jewett says: 'The assignment to the trustees therefore 
 being considered void, there was nothing to prevent the judg- 
 ments docketed in May and July, 1838, from being regarded as 
 liens upon the premises.' I understand the decision in the Court 
 of Appeals to support this view." 
 
 The amendments of 1862 have definitively fixed when the 
 property of the debtor passes from him to a receiver; and it seems 
 to me the best conclusion that priorities, as to personal estate, are 
 to be settled according to the orders of appointment. So much 
 of the property vests in the receiver, as trustee of the creditor at 
 that time, as is necessary to pay him ; and so as to each other 
 creditor in succession. 
 
 Powers and duties. — The authority to institute an action to set 
 aside a fraudulent transfer which was decided to exist in such re- 
 ceivers, in Porter vs. Williams, is recognized and placed beyond 
 reasonable doubt by the act of April, 1858 (eh. 314). See this 
 statute stated, under the general head of Powers of Receivers, ante. 
 And see the same head, as to the powers and duties of receivers 
 generally. 
 
 The present 92d rule of the Supreme Court prescribes certain 
 duties and gives certain rights in this particular case. It provides 
 that 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 ex- 
 ceeding one year. And it shall be his duty, without any unrea- 
 sonable 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 judgment in the cause. 
 He is not to be allowed for the costs of any suit brought by him 
 against an insolvent from whom he is unable to collect his costs, 
 unless such suit is brought by order of the court, or by the con- 
 
§ 299.] EEOErvEES. 531 
 
 sent 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. 
 
 Section 299. 
 
 By section 299 of the Code, " if it appear that a person or cor- 
 poration alleged to have property of the judgment-debtor, or in- 
 debted to 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 dis- 
 solved by the judge granting the same,' at any time, on such secu- 
 rity as he shall direct." 
 
 The case of Rodman vs. Henry (17 N. T. Eep. 483) is an ex- 
 position of this provision. Upon an examination of a judgment- 
 debtor, an order was made for the delivery by him of certain 
 property which he swore belonged to another person, under a 
 mortgage ; that such person had taken actual possession, and he 
 had control of part of the goods only as her agent. On proceed- 
 ings against him for contempt, those facts were fully made out. 
 An order allowing an attachment was reversed by the General 
 Term, and such reversal sustained by the Court of Appeals. 
 
 The court say : " The sections cited, as well as section 294, 
 which directly bears upon the construction of section 299, pre- 
 cludes the idea that a third person, who claims the property as 
 his own, is to be placed, in virtue of these proceedings, in a posi- 
 tion where his rights can only be asserted in a suit in which he is 
 plaintiff. The obvious purpose of the series of provisions is, to 
 give the creditor an immediate and summary remedy against the 
 debtor's property, but not to permit the rights of third persons to 
 be brought into litigation, except in a regular way by suit. A 
 receiver should assert any right against him." 
 
632 EECEIVBE8. [§ 244. 
 
 In Edmonston vs. McLeod (19 Barbour, 357) it was held that 
 an action to recover a debt due to the judgment-debtor from a 
 third person, or to reach property in his possession alleged to be- 
 long to the judgment-debtor, could only be brought by a receiver. 
 It could not be instituted by the judgment-creditor himself. 
 
 In Patten vs. Connah (13 Abbott's Eep. 418) a third person, 
 upon being called before a judge under this 299th section, admit- 
 ted that he owed a sum to the judgment-debtor. An order was 
 made that he pay over the money. He refused, and a suit was 
 brought by the creditor. It was held that the action could not be 
 sustained. A receiver must be appointed. 
 
 Section S44. 
 
 Provisional Remedies. 
 
 Under this head, Chapter 5, § 244, includes the title Mecei/oers, 
 deposit of money, die, in ■court, and other provisional remedies. 
 Judgment for sum admitted due. 
 
 The title (Title 7) is, " of the provisional remedies in civil ac- 
 tions ;" and why receivers did not make a separate chapter, and 
 these other remedies separate chapters, being wholly distinct in 
 their nature, is not apparent. 
 
 The first clause of the section, after providing for receivers, is 
 as follows : 
 
 [a.] Payment or delivery into court. — " When it is admitted by 
 the pleading or examination of a party, that he has in his posses- 
 sion or under his control any money or other thing capable of de- 
 livery 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 deposited in court, or 
 delivered to such party, with or without security, subject to the 
 further direction of the court." 
 
 This provision is found in the Amended Code of 1851, and has 
 remained unaltered since. 
 
 The provision now considered embraces the subject of payment 
 of money into court, an important branch of the chancery prac- 
 tice. (See 2 Daniel's Practice, 1636 ; 1 Hoffman's Pr. 319.) 
 
 In commenting upon this clause, Mr. Justice Gierke says : 
 " That it contemplates the admission of the whole claim, and re- 
 
§ 244. J PAYMENT OE DEPOSIT INTO COURT. 533 
 
 lates to specific property, whether money or anything else, that 
 could be traced or identified, which it is alleged the defendant un- 
 justly detains ; or money which is not the subject of a demand, 
 and arising from the breach of an ordinary contract." (Lane vs. 
 Losee, &c., 11 Howard Pr. Kep. 360.) 
 
 In Buchan vs. Casey (4 Sandf. Sup. Ct. Eep. 706) the defend- 
 ant was surety for the payment of the plaintiff 's rent, and the 
 plaintiff had deposited with him $150 to be applied on account. 
 It was considered that the defendant held this money as a trustee, 
 and was bouiid to pay it in, or obtain a receipt for so much rent. 
 
 "When the application is against an executor or trustee, the 
 admission of a certain sum being in hand is sufficient. It need 
 not appear that the fund is in danger or insecure.' 
 
 Money in the hands of a banker, or of a mercantile house of 
 which the defendant is a partner, is considered, for such an appli- 
 cation, as in the hands of the defendant." 
 
 It was decided in our courts that money paid in under an or- 
 der of court was a mere security, and not part payment ; and 
 although invested in stock on the application of the complainant, 
 a loss on the stock must fall on the defendant.' However, it is 
 now provided by statute (2 K. S. lYl, § 21) that the party bring- 
 ing money into court, pursuant to any order, shall in all cases be 
 thereby discharged from all further liability, to the extent of the 
 money so paid into court. 
 
 The court will not, in general, order interest to be paid upon 
 the amount admitted due, but the principal only. 
 
 In "Wood vs. Downes (1 Yes. & Bea. 49), under a decree for 
 an account, the defendant put in his examination to interrogato- 
 ries, and set forth the specific sums paid and received, but omit- 
 ted to cast them up, or strike the balance. Upon an affidavit of 
 the plaintiff's solicitor, stating he had struck the balance and com- 
 puted the interest, a motion was made that the aggregate sum 
 should be paid into court. A case of Fairly vs. Freeman (not re- 
 
 ' Strange vs. Harris, Executor, Ac, 3 Br. C. E. 365 ; Blake vs. Blake, 2 Sch. & Lef. 
 26 ; Eothwell vs. Kothwell, 2 Sim. & St. 217. 
 
 " Johnson vs. Asten, 1 Sim. & St. 73. 
 
 ' Clarkson vs. Depeyster, Hopkins, 505 ; afiirmed, 2 Wendell, 1*1. See, also, Am- 
 brose vs. Ambrose, 1 Cox Ca. 194; D'Oyley vs. Countess of Davis, ibid. 206; Kid- 
 man vs. Blake, 1 Hogan Rep. 168. 
 
534 PAYMENT OK DEPOSIT INTO COtTET. [§ 244. 
 
 ported) was cited. Lord Chancellor : " I certainly do not recol- 
 lect any instance in which the court has gone this length upon 
 motion merely. In the case of Fairly vs. Freeman I went on a 
 different ground, taking the answer to be, that the defendant had 
 received the £2,000, and admitting that he had made interest to 
 a greater amount than I directed him to pay. I am unwilling to 
 carry the practice further than it has been carried." Order to pay 
 in the principal only. 
 
 In the case of Clarkson vs. Depeyster (Nov. 18, 1823, MSS.) 
 the court refused to order the payment of interest on the princi- 
 pal sum. 
 
 Where an executor admitted that he had received certain 
 sums, but said he had paid money on account of the estate, with- 
 out specifying the amount, he was allowed to verify the amount 
 by affidavit, and ordered to pay the actual balance only into court. 
 (4 Sim. Eep. 359.) 
 
 Affidavits are admitted after answer, to be read in support of a 
 motion to pay purchase money into court. Thus, in Bradshaw vs. 
 Eradshaw (2 Merivale, 492), there was a bill to enforce the per- 
 formance of a contract respecting the purchase of real estate. 
 After answer a motion was made for payment of purchase money 
 into court, upon affidavits stating acts of ownership by the pur- 
 chaser since he was let into possession. 
 
 The Lord Chancellor said : " It was now quite decided that, 
 upon motions of this sort, affidavits of collateral circumstances 
 might be read, and that it was a practice to be encouraged, as it 
 shortened pleadings. See, also, Crutchley vs. Jerningham (2 
 Merivale, 502). 
 
 As to the necessity of an explicit admission of a definite sum 
 being due, see post [c]. 
 
 [b.J The nexti clause is : " "Whenever, in the exercise of its 
 authority, a court shall have ordered the deposit, delivery, or con- 
 veyance 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." 
 
 As to this clause, Mr. Justice Clerke observed : " This evi- 
 dently also relates to specific money or other property, or money 
 
§ 244.] ADMISSION OF PAET OF CLAIM. 635 
 
 which, is not the subject of a demand arising from the breach of 
 an ordinary contract." "A person who refuses to restore specific 
 funds entrusted to his custody, or which he has received as an 
 agent, or in any fiduciary capacity, or any other specific thing 
 which he has possession of belonging to another, whether as a 
 bailor or otherwise, not only fails to perform a promise, but is dis- 
 loyal to his trust ; and to him, and not to the ordinary debtor^ 
 do these provisions apply." 
 
 The last clause, which empowers the sheriff to take and de- 
 liver the property, is of much value. The English course of the 
 long process of contempt, and even our own of attachment and 
 perhaps sequestration, is thus dispensed with, and a summary 
 proceeding reaches the property, or specific sum of money. 
 
 [c.j Admission of part of a claim by answer. — The next clause 
 of this provision is : " When the answer of the defendant ex- 
 pressly, or by 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." 
 
 Prior to 185Y the provision did not contain the words "judg- 
 ment or," above italicized. They were introduced in the amend- 
 ment of that year. 
 
 In Lane vs. Losee, 1855 (11 Howard, 360), before 185T, Mr. 
 Justice Gierke held, that the provision as it stood could not affect 
 any demand or part of a demand arising on contract, where such 
 contract was within the meaning of the first section of the act of 
 1831 abolishing imprisonment for debt. It could not thus indi- 
 rectly operate to abolish a statute sanctioned by the spirit and 
 policy of our legislation for a quarter of a century. 
 
 In Kussell vs. Meacham (January, 1858, 16 Howard, 193), Mr. 
 Justice Harris goes far to express his concurrence with these 
 views. But he considers that the amendment of 1857 has re- 
 moved all question upon the point. The court may issue an 
 order and enforce it by execution, or in a proper case by attach- 
 ment. The latter remedy would only be appropriate where the 
 defendant, upon a final judgment, would be liable to imprison- 
 ment. 
 
 The Court of Common Pleas, in Merritt vs. Thompson (10 How- 
 ard Pr. Eep. 428, 1855), had taken a somewhat similar view as 
 
536 ADMISSION OF PAET bV CLAIM. [§ 244. 
 
 Mr. Justice Gierke ; intimating, however, that imprisonment 
 might be resorted to where the refusal to pay was contumacious, 
 and not the result of inability. 
 
 In Fosdick vs. Groeff (22 Howard, 163), a case of money ad- 
 mitted to be due upon a notfe, part of various claims sued for, a 
 judgment for payment was to be enforced by execution against 
 the property of the defendant. 
 
 And such an order was also made in Guiet vs. Murphy (18 
 Howard, 411) ; and in Duncan vs. Ainslie (26 Barbour, 199) judg- 
 ment was taken for the part admitted. 
 
 The admission must be distinct and unequivocal of a definite 
 sum being due, or such facts admitted as necessarily amount to 
 such an admission. 
 
 In Eoberts vs. Lane (4 Sandf. Sup. Ct. Kep. 642) the admis- 
 sion was gathered from the answer to be plain as to a particu- 
 lar sum of partnership funds being due. The fact that there 
 were outstanding claims against the firm was no ground for re- 
 sisting the application, although it was to require security. 
 
 In Coursen vs. Hamlin (2 Duer, 513) it was said : " We regard 
 the fifth subdivision of the 244th section of the Code as recogniz- 
 ing and declaring the rule which prevailed in the Court of Chan- 
 cery, and as going no further. It was clearly settled 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 
 upon a full and explicit admission in the answer, or examination 
 of the defendant, of a sum being due. The court will not investi- 
 gate the case to decide whether it is so." (Nutts vs. Hanson, 8 
 Yesey, 68; Nore vs. Gudgeson, Cooper's Cases, 304; Gibert vs. 
 Colt, Hoffman's Ch. Pr. 323, n.) 
 
 In Quintard vs. Secor (3 E. D. Smith, 615) the defendants 
 were sue:d for services and materials alleged to be worth $651.15, 
 in which sum the plaintiff averred they were indebted to him. 
 The defendants answered, admitting the rendering of services and 
 supply of materials, but denying that they were reasonably worth 
 the sum of $651.15, but alleging that they were only worth 
 $572.52, and that no other sum was due from them to the plain- 
 tiff than the said sum of $572.52. 
 
 It'was held that the Code applied as well where the plaintiff's 
 cause of action was single, and the answer admitted a part to be 
 
§ 244. J ADMISSION OF PART OF CLAIM. 537 
 
 due, as where there was more than one cause of action or item 
 of claim, one of which is admitted. 
 
 It was also held that the admission was equivalent to an ex- 
 press statement or confession of the sum of $572.52 being due. 
 The case of Dolan vs. Petty (4 Sandf. Sup. Ct. Rep. 673) was dis- 
 approved. 
 
 In Merritt vs. Thompson (10 Howard's Pr. Eep. 428) the ac- 
 tion was to recover a sum of money alleged to have been received 
 by the defendant as an agent. An injunction as to certain funds 
 in a banker's hands had been obtained. The defendant obtained 
 an order under which he deposited such funds in the Life and 
 Trust Company. 
 
 Upon the coming in of the answers the plaintiff obtained an 
 order for payment of $2,673.34 out of the money so deposited. 
 The defendant annexed a statement of his account with the plain- 
 tiff, made upon his own principles and position, showing the bal- 
 ance to be the above sum, and denying that any greater sum than 
 that was due. 
 
 The court, on appeal, affirmed the order. It was precisely the 
 case contemplated in the provision of the Code. The fact that 
 the defendant had previously offered to pay the sum, if received 
 in full, could make no difference. 
 
APPENDIX. 
 
 A.— Page 210. 
 
 Touillier Droit Civil. Tome 3, p, 72, et. seq. 
 
 WATER PRIVILEGES. 
 
 131. There are three distinct conditions of water to be noticed: 
 where it has its source upon an estate ; where the stream crosses ; and 
 where it borders it. 
 
 By force of the rule that ownership of the soil carries the right to all 
 that is above, water belongs to the owner of the land on which it has its 
 source. Article 641 only announced a consequence of the right of prop- 
 erty, when it says, " He who has a spring on his land can use it at his 
 will." 
 
 132. Thus, he can keep its water to himself, and prevent its flowing 
 on lands situated lower down, by digging basins to retain it, by ditches, 
 ponds, or by any similar works he may see fit to construct. 
 
 He can alter the direction of its current, causing it to flow south 
 where it had flowed north, provided only that the lands on which he 
 turns the stream belong to him, or the proprietors do not object, for he 
 cannot compel them against their wish to be burdened with a stream 
 flowing contrary to its natural course. But if these consent, the pro- 
 prietor • of the land on which the water had flowed before, even from 
 time immemorial following its natural direction, can not complain, un- 
 less he had acquired by title or prescription against the proprietor of 
 the land above or servitude in its course. 
 
 133. When the Code was under discussion in the Council of State, 
 this principle of Article 641 was objected to on the ground that water, 
 like air and light, being common property, was not the subject of per- 
 manent ownership. 
 
 That nature has designed it for the use of all, and there could be 
 acquired but a temporary property which lasted only as long as posses- 
 sion. As a consequence, the owner of land on which water flows, could 
 
540 APPENDIX. 
 
 only claim a right of preference or as first occupant. After his wants 
 were satisfied, the design and nature of water, justice, and public inter- 
 ests would not permit him arbitrarily to deprive others of the use of it. 
 
 This objection was not deemed valid, and with reason. Though true 
 in principle, the application was erroneous. 
 
 There was no dispute as to the fact that the owner of an estate on 
 which there is a spring has the first right to the use of its water. If he 
 need all the water, he can retain it ; and no one can object, for he alone 
 can judge of the extent of his wants. Moreover, before the water has 
 escaped from his land to run on that of another, no one has acquired any 
 rights over it. He is at liberty to construct upon his land such works as 
 he please. 
 
 If the owner do not retain all the water, it becomes, after leaving his 
 land, common property.* 
 
 He cannot prevent any one from using it ; but if from any reason he 
 choose to make the stream leave his premises at the north instead of the 
 south, the proprietor of the land below cannot prevent it, since the latter 
 has no right to the water till it comes from the land above, unless ac- 
 quired by title or prescription. Such a right would be a servitude as to 
 which it will be seen, further on, what possession will create a pre- 
 scription. 
 
 134. But, as public interests should always prevail over private, the 
 owner of a spring cannot change its course when it furnishes the inhab- 
 itants of a commune, village, or hamlet with their necessary supply of 
 water. 
 
 There is in such case a legal servitude, of which we will speak here- 
 after ; but there must be a necessity, and even then compensation is to 
 be made, the amount to be regulated by experts (643). 
 
 Thus, in a time of drought, when the water of a pond is necessary to 
 the mills which supply a town with food, the owner of the pond must 
 let the water run out, but he is to be paid at a fixed rate for each metre 
 the water is thereby lowered. 
 
 This is frequently the case with the mills of Vilaine, which furnish 
 food to Rennes. 
 
 135. The reasons for giving to the owner of a spring the right to 
 divert or retain its water, may be urged by one through whose estate a 
 stream runs. 
 
 He can use the stream as he may see fit while it crosses his land 
 (644), and at first there appear no sufficient motives to prevent his retain- 
 
 * Blaokatone, vol. 2, pp. 14 and 18. 
 
APPENDIX. 541 
 
 ing the water or changing its flow. It is the exercise of an act of prop- 
 erty, and the proprietors of the land below him have acquired no right 
 over the water until it has left the land above. But the civil law, from 
 motives of equity, is opposed to this claim. 
 
 If the proprietor of land through which a stream runs could divert 
 or retain its water to the prejudice of the land below, the proprietor of 
 the land above him would have the same right. 
 
 By forbidding both from changing the course of the water, the law 
 protects alike their several rights of property by the very limitation it 
 prescribes. 
 
 They can use the water in its flow through their property, make it 
 circulate as they choose, but on condition of returning it to the ordinary 
 channel on leaving their land. 
 
 If they dig ditches, canals, basins, or ponds large enough to diminish 
 the volume of the water so as to cause marked injury to the lands below, 
 the question will depend on the circumstances of each case. 
 
 Article 645 declares that if disputes arise between proprietors to 
 whom the use of the water would be advantageous, the magistrates, in 
 deciding, must endeavor to reconcile the interests of agriculture with 
 the rights of property. 
 
 136. No appeal to the Court of Cassation can be taken from the de- 
 cisions of the lower courts, as may be seen by two decisions rendered 
 the same year, April 7th and July 15th, 1807, and which, though appar- 
 ently contradictory, are based upon the same principle. 
 
 In the first case, one Bollet, through whose property a brook ran, by 
 virtue of immemorial possession of the use of the water for the irrigation 
 of his meadows, had constructed works to facilitate this irrigation. 
 
 , The owners of two mills below complained. There was a lawsuit, 
 in which it was established — 
 
 1st. That Bollet had diverted the water, by ditches ingeniously made, 
 so as to procure for his fields an irrigation they very much needed. 
 
 2d. That the brook, insufiicient in dry seasons to turn the mills be- 
 low, was still further diminished by these irrigations, so advantageous to 
 the proprietor. 
 
 3d. That there was no excavation on the estate of Bollet by which 
 there could be loss of water. 
 
 4th. But that the use he had made of the water had injured the mills 
 
 below. 
 
 Bollet was condemned to destroy his works and to restore the former 
 condition of the stream. By a decree of the 27th Messidor, in the year 
 XIII. the Court of Appeals of Dijon declared that the case had been de- 
 
54:2 APPENDIX. 
 
 cided correctly, but gave Bollet the right to institute proceedings for the 
 purpose of having regulated, with the parties interested, the manner of 
 taking the water for the irrigation of his land. 
 
 By decree of the 7th of April, 1807, his appeal to the Court of Cas- 
 sation was dismissed on the following grounds : 
 
 That, by Article 644 of the Code, proprietors whose lands are tra- 
 versed by a stream can only use the water on condition of returning it, 
 on issuing from their lands, to its ordinary bed ; and that Bollet ab- 
 sorbed the water in such a manner that there resulted considerable in- 
 jury to the manufactories below. 
 
 That also Article 645 assigns to the magistrates the duty of recon- 
 ciling the interests of agriculture with the rights of property, and in 
 making this decision they only exercised that function. 
 
 The second decree dismissed an appeal from a judgment of the Court 
 of Appeals of Paris, which had decided that one Provence, whose estates 
 were crossed by two streams which afterwards emptied into a pond be- 
 longing to one Berthelin, had a right to dig ditches and basins in which 
 he collected their waters, although these works considerably diminished 
 the quantity of water Berthelin's pond received, and even threatened to 
 deprive it altogether of water in a season of drought. 
 
 But Provence returned the waters to their ordinary bed on issuing 
 from his land, and the Court of Cassation considered that Article 644 
 gave to the proprietor of land, through which a stream flowed, the right 
 to use it, on condition only of returning it to its ordinary bed. 
 
 That Article 645 assigns to the magistrates the duty of reconciling 
 the interests of agriculture with the rights of property, in deciding dis- 
 putes between proprietors who are interested in such waters. 
 
 That in the case under consideration, the water which crossed the 
 estate of Provence, after he had used it, flowed in its usual course into 
 Berthelin's pond ; that thus the judgment appealed from was conform- 
 able to the provisions of the Articles cited. 
 
 It follows that in all such disputes there arise only questions of fact 
 which the judges alone can pass upon, and that from their judgments no 
 appeal lies to the Court of Cassation. 
 
 137. If the canals, basins, or ponds which retain the water and deprive 
 the land below of their supply, existed a sufficiently long time to work a 
 prescription, the neighboring proprietors lose the right to object, and 
 the magistrates can order their destruction only on the ground of the 
 interests of agriculture. 
 
 These basins or ponds are property, and are only to be sacrificed to 
 the duly established public good, and compensation is to be made for 
 them. 
 
APPENDIX. 54.3 
 
 A. law of 14th Fumaire, Year II., had directed the draining and culti- 
 vation of all ponds which it was usual to draw off for the purpose of fish- 
 ing, and those whose waters were collected by dams and embankments, 
 but it was repealed by another law of 13th Messidor, Year III. 
 
 By a law of 11th September, 1792, if the ponds, by stagnation of the 
 water, might occasion epidemic or epizootic diseases ; or, if from their 
 situation they were sometimes liable to overflow and injure the lands 
 below, the authorities of the Departments (now the Prefects or Council 
 of the Prefecture) were authorized to direct their destruction, at the re- 
 quest of the municipal authorities, with the approval of the under Pre- 
 fect. But the proprietors must be first compensated. 
 
 138. If private individuals camiot direct the destruction of ancient 
 ponds, they can oblige the owner to keep the banks and outlets in such 
 a condition that they cannot be thereby injured. 
 
 If the owner neglects to repair them he is responsible for all dam- 
 ages that may be occasioned by the water breaking out. 
 
 This would not be a case of vis major. As the injury would arise 
 from the negligence of the owners, on them the loss should fall. 
 
 A neighbor, on discovering the bad condition of a pond, can notify 
 the owner to repair it, but, independently of this notice, he can recover 
 damages and interest if able to prove that the injury was caused by the 
 condition. This is a just consequence of Article 1,383 of the Civil 
 Code. 
 
 But the riparian owners cannot object if the water cover their lands 
 in extraordinary freshets. This is a servitude that the owner of the 
 pond has acquired by prescription. He is only responsible for transient 
 inundation in case he has increased the height of its banks or of its 
 place of discharge, of which the riparian owner can always demand the 
 reduction to its former height ; if there arise disputes as to this, the ad- 
 ministrative authorities are to fix this elevation, as well as that of the 
 sluices of mills. 
 
 139. The owner of a pond retains his right to the land the water 
 covers when at the height of its discharge, although the water should be 
 lowered (558), as in seasons of drought, and the riparian owners acquire 
 no right to use this land which the law preserves to the pond-owner. 
 
 The occupation of this land by cutting grass and pasturing cattle, 
 can only be precarious, and they acquire no legal right thereby. 
 
 For the same reason, there is no alluvion in favor of the riparian 
 owners of a pond. 
 
 140. But if the source of the pond be not on the land of the pro- 
 prietor of the pond, he cannot, more than any other through whose land 
 
6M APPENDIX. 
 
 a stream runs, direct its water, wholly or partially, without returning it 
 to its ordinary channel. The magistrates cannot authorize this even 
 under pretext of the interests of agriculture, without contravening Ar- 
 ticle 644. 
 
 141. One whose property borders on running water other than rivers 
 and streams that are navigable or floatable, can avail himself of the 
 water to irrigate his land (644).* 
 
 His right is restricted to this employment of the water. It is not as 
 extensive as that of a proprietor of land crossed by running water who 
 can even use the water — a strong expression which Article 644 em- 
 ployed in opposition to availing himself of it for irrigation. 
 
 It is especially with regard to water running between different 
 estates, that the magistrates, in deciding disputes arising between the 
 proprietors, are to reconcile the interests of agriculture with proprietary 
 rights. 
 
 142. In every case the special and local regulations as to the course 
 and use of water in general, where any exist, should be observed (645). 
 
 143. But where none exist, to whom does it belong to make these 
 regulations % 
 
 A distinction is to be observed ; if only disputes between individ- 
 uals are to be passed upon, and the regulating and limiting their use of 
 the water to be settled, it belongs to the magistrates to decide. 
 
 But if measures of police are to be taken with regard to a stream, 
 such as directing its clearing out or causing any work to be done upon it 
 either to facilitate its flow or to prevent its being an injury to the public, 
 the courts of justice become incompetent and Government alone can act. 
 
 144. Proprietors have not only the right to the water of streams 
 which flow through or bound their estates ; they have, besides, the ex- 
 clusive right of fishing in them, with the exception of rivers and streams 
 that are navigable or floatable. 
 
 Some Communes have claimed that the right to fish in non-navigable 
 rivers should belong to them, but the Council of State were of opinion 
 that their claim should be disallowed, and this view was embodied in a 
 decree of 30th Pluviose, Year XIII., printed in the Bulletin de Lois. 
 
 The grounds of this opinion were, that feudal rights, of which fishery 
 
 * But this right to take water ceases if the non-navigable stream or brook changes 
 its bed and flows on the land of a neighbor. The proprietor of the land which the 
 water has abandoned, cannot make a channel across the old bed in order to re-estab- 
 lish his connection with the water. 
 
 See the Decree of the Court of Cassation, 11th February, 1811. Sirey, vol. 15] 
 p. 100. 
 
APPENDIX. 
 
 545 
 
 was one, were not abolished in favor of Communes, but of the vassals, 
 who became free not only in their persons, but in their property, and 
 that the grant to the Communes, of the right of fishery in non-navigable 
 streams, would be, on the property of individuals, a servitude unknown 
 to the civil law. 
 
 Thus, the right of iishing in non-navigable rivers, belongs to the 
 riparian owners, but they can only exercise this right in conformity with 
 the laws or local regulations concerning fisheries, nor can they retain it 
 in case of a river becoming navigable. 
 
 The bed of non-navigable rivers belongs also to riparian owners, not 
 to the Communes. 
 
 145. The administrative authorities are to decide if a river is naviga- 
 ble or floatable since they are to determine by what indications public 
 property is to be recognized. 
 
 146. Although rivers and navigable or floatable streams are depend- 
 encies of the public domain, the law of October 6th, 1791, in relation to 
 the rural police, gave every riparian owner the right of taking water, 
 provided the stream was not changed or interfered with in a manner 
 detrimental to the public welfare or to established navigation. 
 
 But this Article is impliedly repealed by Article 644 of the Code, 
 which gives this right in case of running streams other than those de- 
 clared dependencies of the public domain. 
 35 
 
INDEX. 
 
 [The Author has been essentially aided in making this Index by Amasa A. Rbdpield, Esq., of the New 
 
 York Bar.] 
 
 A. 
 
 « 
 
 ABATEMENT, of action for claim and delivery, 134. 
 See Claim and Delivery. 
 of suit, effect of, on injunction, ili. 
 
 of suit in favor of corporation, not effected by dissolution, 493. 
 of cause, does not affect receiver, 612. 
 ABSCONDING DEBTOR, attachment against may issue, 409, 431. 
 See Removal. 
 See, also. Injunction, 316. 
 ABSENT DEBTOR, attachments against, under Revised Statutes. See Attachmbnt, 
 
 431. 
 ACTION, defined, 9. 
 
 ex delicto and ex contractu, distinguished, 9. 
 forms of, how far altered by § 69, 10. 
 election of, under § 179, 16. 
 
 of replevin and trespass under the Code, nature of, 104. 
 prosecution of, restrained by injunction, how far, 298, 318. 
 not commenced by issuing warrant of attachment, 416. 
 abatement of. See Abatement. 
 ADMINISTRATOR. See Executor. 
 
 AFFIDAVITS, suflSciency of, to obtain order of arrest, 45-48. 
 See Arrest and Bail. 
 
 copy of, to be served with order of arrest, 53. 
 with injunction order, 323. 
 
 how far evidence on motion to vacate arrest, 88. 
 ■ on motion to vacate or modify injunction, 340-348. 
 on motion for attachment for contempt, 381. » 
 
 on motion for attachment in general, must show what, 420. 
 against absconding debtor, what must appear in, 409-411. 
 in an action for claim and delivery, what must appear in. See Claqi 
 AND Delivery, 110-116. 
 AGENT, fiduciary capacity of, warranting arrest, 20. 
 
 See Arrest and Bail. 
 ALIEN. See Foreign. 
 
 ALLOWANCE, to plaintiff under § 808, when allowed in attachment, 463. 
 to receivers, as compensation, amount of, 617. 
 ofbail, 78, 79. 
 
 See Attachment, Injunction, Receivers. 
 ALLUVION, defined, 200. 
 
 property in, how acquired, 200, 201. 
 See Injunction. 
 
.348 
 
 INDEX. 
 
 AMBASSADORS and their Berrants exempted from arrest, 39. 
 ANSWER, how far may be used on motion to vacate injunction, 848. 
 APPEAL from an order in relation to a provisional remedy, how taken, 425. 
 ARREST AND BAIL, 1-103. 
 
 Introductory remarks — history of, l-?. 
 Sbotion 178, transcribed, 1. 
 
 Ne exeat, whether abolished, 7. 
 
 Act of 1831 still in force, 8, 11-19. 
 
 Contempt, arrest for, allowed, 8. 
 Section 179, first subdivision, 9. 
 
 Actions ex delicto and ex contractu, distin- 
 guished, 9. 
 
 Non-residence of defendant, 11. 
 
 See, also. Attachment, 399. 
 
 Intention to remove from the State, authorizing 
 arrest, 11. 
 
 Change of residence, what constitutes a, 12. 
 
 Law of New Hampshire, concerning arrest, 13. 
 
 Injury to person, in an action for, defendant 
 may be arrested, 13. 
 
 English law on the subject, 13. 
 
 Amount of bail in actions for assault an^d bat- 
 tery, 14. 
 
 Liability of wife to arrest, 14. 
 
 Liability of husband to arrest on contract or 
 tort of wife, 14. 
 
 Grim, con., defendant may be arrested in an 
 action for, 14. 
 
 Seduction, defendant may be arrested in an ac- 
 tion for, 15. 
 
 False imprisonment, liability of defendant to 
 arrest in action for, 15. 
 
 Injuries to character, what are, 15. 
 
 Malicious prosecution, evidence of probable 
 cause, in action for, 15. 
 
 Injuring, taking, detaining or converting prop- 
 erty, distinguished, 16. 
 
 Elections of actions, 16. 
 
 Female, arrest of, for embezzlement, 16. 
 
 Injury to property, what amounts to, 17. 
 Section 179, second subdivision, 17. 
 
 Fine and penalty, action for, under § 179, sub- 
 division 2, 17. 
 
 Penal and remedial statutes, distinguished, 17. 
 
 Female cannot be arrested in action for breach 
 of promise to marry, 18. 
 
 Public officer embezzling, liable to arrest, 18. 
 
 Whether public officer of foreign Government 
 can be held, as such, to an arrest here, 18. 
 
 Foreign state not excluded from provisional 
 remedies under our statutes, 19. 
 
 Fraud in an attorney, etc., subjecting him to ar- 
 rest, 19. 
 in an officer or agent of a corporation, 19. 
 
 Officer of a corporation, what constitutes an em- 
 bezzlement by, 20. 
 
 Fiduciary capacity, what constitutes, 20-22. 
 Section 179, third subdivision, 23. 
 
 Amendments of, stated, 28. 
 
 Bail under subdivision 3, 23. 
 
 Wrongful taking of personal property, what con- 
 stitutes a, 23. 
 
INDEX. 64:9" 
 
 ARREST AND BAIL— (continued.) 
 
 Section 179, third subdivision — Actual detention neceBsary 
 
 to arrest defendant, 24. 
 Prayer for judgment in action for wrongful tak- 
 ing, &C., 24. 
 Section 179, fourth subdivision, 25. 
 
 Fraudulent contracting of the defendant, Ac, 
 
 what constitutes a, 25-28. 
 " Obligation " defined, 27. 
 Partner, arrest of, for fraudulent representations 
 
 of copartners, 28-31. 
 Section 179, fifth subdivision, transcribed, 31. 
 
 Evidence of intent to remove property, what is 
 
 sufficient, 31-33. 
 Female, arrest of, for what causes, 33-35. 
 Amendments of section, authorizing arrest of 
 
 female, stated, 33. 
 Common law concerning arrest of. female, how 
 
 affected by the Code, 34. 
 Injuries to person, character, and property, what 
 
 constitute, 84. 
 Provision of 2 Rev. Stat. 428, § 8, concerning 
 
 arrest of female, 34. 
 Privileges and Exemptions from arrest, 36-43. 
 
 Senators and Representatives in Congress ex- 
 empted from arrest, 85. 
 Members of State Legislature, when and how 
 
 long exempted, 36. 
 Persons in military service of the State, 36. 
 Witnesses, how far exonerated from arrest, 86, 40. 
 What constitutes character of a witness, 36. 
 Witness from another State, 37. 
 Attorneys and counselors, how far exempted, 
 
 37-89. 
 Provision of 2 Rev. Stat. 290, § 86, relative to 
 
 exemption of officers of courts of record, 37. 
 English law relative to the same, 88. 
 Ambassadors and their servants exempted, 39. 
 Consuls not included by the statute, 39. 
 What amounts to a waiver of privilege, 89. 
 Officers under Police Act exempted, 40. 
 Sheriff not exempt, 40. 
 
 Second arrest, exemption from, when, 40-42. 
 Detainer, extent of, 42. 
 In action on a judgment, defendant exempted, 
 
 how far, 42. 
 Seohon 180, transcribed, 43. 
 
 Power of county judge to issue order, 43, 44. 
 Section 181, transcribed, 45. 
 
 Amendment of, stated, 45. 
 
 Affidavits, sufficiency of, to obtain order, 46-48. 
 Section 182, transcribed, 49. 
 
 Security by plaintiff before order of arrest, 49. 
 Whether plaintiff must sign undertaking, 49. 
 Who may sign undertaking, 60. 
 Section 183, transcribed, 51. 
 
 Amendments of, stated, 51. 
 
 Order, when made, and its form, 61. 
 
 Designation of defendant in order, 61, 62. 
 
 Arrest after judgment, 62. 
 
 Order, when to accompany summons, 52. 
 
 English law on the subject, 53. 
 
550 
 
 INDEX. 
 
 ARREST AND BAIL— (oontimied.) 
 
 Section 183, Return of order, 53. 
 
 Aliaa order, how obtained, 53. 
 Skotion 184, transcribed, 53. 
 
 Service of order by sheriff, 53, 
 
 Variance of copy serred, how far vitiates the 
 
 arrest, 64. 
 Sheriff to file the affidavits, 64. 
 Section 186, transcribed, 54. 
 
 Arrest, how made, 54. 
 
 what constitutes an, 54, 56. 
 Rescue on mesne process, sheriff not liable for, 
 
 55. 
 Jail-liberties, who are entitled to, 66, 56. 
 How far sheriff becomes bail, 56. 
 Sufficiency of bail for the limits, 66. 
 Section 186, transcribed, 67. 
 
 Discharge of defendant on bail or deposit, 5*7. 
 When bail may be put in, 67. 
 Deposit in lieu of bail, 67, 79. 
 Discharge to be had at any time before execu- 
 tion, 57. 
 Section 187, transcribed, 58. 
 
 Bail, how given, 68. 
 Form and effect of undertaking, 68. 
 See Qualifications of Bail, 73. 
 Section 188, transcribed, 59. 
 
 Surrender of defendant, and exoneration of bail, 
 69-61. 
 Section 189, transcribed, 61. 
 
 Bail may arrest defendant, 61. 
 English rule applicable, 62. 
 Arrest in another State, 63. 
 Section 190, transcribed, 63. 
 
 Proceedings against bail, 63. 
 Pleadings, sufficiency of, in action against bail, 
 64. 
 Section 191, transcribed, 66. 
 
 Exoneration of bail, 66. 
 
 by death of principal, 66. 
 
 by sickness of principal, 65. 
 
 by imprisonment of principal in 
 
 State prison, 65. 
 by discharge of principal in bank- 
 ruptcy, 67, 68. 
 Effect of foreign discharge, 68. 
 Extension of time to surrender, in the discretion 
 of the court, 69. 
 Section 192, transcribed, 70. 
 
 Delivery and acceptance of undertaking of bail, 
 
 70. 
 Waiver of exception, what is, 70. 
 Section 193, transcribed, 71. 
 
 Amendments of, stated, 71. 
 Justification of bail, notice of, 71, 77. 
 Requisites of notice, 72. 
 
 Bail excepted to, not justifying, exonerated, 72. 
 New bail, requiring new undertaking, 72. 
 Section 194, transcribed, 73. 
 
 Qualifications of bail, what are, 73. 
 "Householder " and " housekeeper," defined and 
 distinguished, 73, 74. 
 
INDEX. 551 
 
 ARREST AND BAIL— (continued.) 
 
 Section 194, " Freeholder" defined, 16. 
 
 Amount of bail, how determined, 15. 
 "Who may not become bail, 76, li. 
 Seotion 195, transcribed, 77. 
 
 Justification of bail, manner of, 78. 
 Section 196, transcribed, 78. 
 
 Allowance of bail, 79. 
 Section 197, transcribed, 79. 
 
 Deposit with sheriff in lieu of bail, manner of, 79. 
 Provisions of English statutes respecting, 79. 
 Section 198, transcribed, 80. 
 
 Payment of money into court by sheriff, 80. 
 Liability of sheriff on default in payment, 80, 81. 
 Section 199, transcribed, 81. 
 
 Deposit to be refunded, on giving bail, 81. 
 English practice relative to refunding of deposit, 
 81. 
 Section 200, transcribed, 82. 
 
 Deposit, how applied and disposed of, 82. 
 Section 201, transcribed, 83. 
 
 Liability of sheriff as bail, what constitutes, 83. 
 discharge from, how effected, 84, 85. 
 Section 202, transcribed, 85. 
 
 Proceedings against sheriff by action only, 85. 
 Section 203, transcribed, 86. 
 
 Bail not justifying, liable to sheriff, 86. 
 Section 204, transcribed, 87. 
 
 Whether putting in bail is a waiver of objections 
 
 to sufficiency of original affidavits, 87. 
 Motion to vacate order, or reduce bail, when 
 
 must be made, 87. 
 Affidavits, how far evidence, on motion to va- 
 cate, 88. 
 and complaint, variance between, 
 effect of to discharge defendant, 89. 
 to discharge bail, 89, 91. 
 Bail discharged, by dealings between plaintiff 
 
 and defendant, when, 91. 
 AfiBdavits, sufficiency of, 92. 
 Section 205, transcribed, 92. 
 
 Motion to discharge defendant may be made on 
 
 affidavits, 92. 
 Plaintiff restricted to his original grounds for 
 
 the arrest, 93. 
 Trial of liabilitj' on affidavits, how far allow- 
 able, 93. 
 Burden of proof, on motion to discharge, on 
 
 whom, 93, 94. 
 Defence, how far admissible, where the grounds 
 of arrest and of action vary, 94, 95. 
 where they are identical, 96-100. 
 Reference, when proper, 100. 
 Deceit, when order of arrest obtained by, dis- 
 charged, 101. 
 Condition of discharge, imposed, 101. 
 Arrest on Execution under § 288 of Code, 101. 
 
 Execution against the person, may issue, when, 
 102. 
 under amendment of 1862, 103. 
 ASSAULT AND BATTERY, amount of damages in action for. See Arrest and 
 
 Bail, 14. 
 
552 INDEX. 
 
 ASSIGNMENT, of thing in action, enjoinable. See Injunction, 217-219. 
 ATTACHMENT, 886-464. 
 
 Introductory— history of, 386-391. 
 Section 227, transcribed, 391. 
 
 Bemedy under Revised Statutes, distinguished from that under 
 the Code, 381. 
 
 Who may sustain an attachment, 392. 
 
 Nature of the action, 393. 
 
 " For the recovery of money," defined, 393. 
 
 Attachment may issue against foreign corporation, 396. 
 ' Mode of commencing the action, stated, 396. 
 
 Attachment against non-resident, 399. 
 
 Non-resident, what constitutes a, 399-407. 
 
 Joint liability of resident and non-resident defendants, 407. 
 
 Foreign monarch or state, liability of, to attachment, 408. 
 
 Against absconding or concealed party, attachment may issue, 409. 
 
 Affidavits on motion, what must appear in, 409-411. 
 
 Removal of property from the State, restrained by attachment, 411. 
 
 Affidavits on motion for, sufficiency of, 411, 412. 
 
 Removal must be with view to injure creditors, 412. 
 
 Fraudulent assignment or secretion of property, 413. 
 
 Fraud, what is sufficient evidence of, 413. 
 
 Attachment and arrest, or injunction, granted simultaneously, 414. 
 
 Time of obtaining warrant, stated, 415. 
 
 Issuing of warrant not a commencement of the action, 416. 
 
 Manner and object of the remedy, 417. 
 
 Attachment not to be questioned collaterally, 418. 
 Section 228, transcribed, 419. 
 
 "Warrant, by whom granted, 419. 
 Section 229, transcribed, 419. 
 
 In what cases warrant may issue, 419-422. 
 
 Affidavit must show a cause of action, 420. 
 Section 230, transcribed, 422. 
 
 Undertaking on obtaining warrant, requisites of, 423. 
 Section 231, transcribed, 424. 
 
 Warrant, to whom directed, and what to require, 424. 
 
 Appeal from an order in relation to a provisional remedy, how 
 talsen, 426. 
 
 What property may be attached, 440. 
 Section 232, transcribed, 425. 
 
 Execution of warrant, mode of proceeding in, 426. 
 
 Attachment of real property, notice of lis pendens to be filed, 427. 
 
 Inventory to be made, 428. 
 
 Retention of the property by sheriff, 429. 
 
 See, also. Claim and Deliveet, 130. 
 
 When the attachment takes effect, 429. 
 
 Several attachments against same debtor, adjustment of, 429. 
 
 Attachments against absent debtors under Revised Statutes, ap- 
 plied, 431. 
 
 Collections and suits under subdivisions 4 and 5, 435. 
 
 General notice by sheriff, how far a sufficient attachment, 435. 
 Section 233, transcribed, 436. 
 
 Perishable property, sale of, under the statute, 486. 
 
 Vessels, attachment and sale of, 437. 
 
 Claim of property by other persons, effect of, 438. 
 
 Whether defence of fraud may be set up by sheriff, 439. 
 Section 234, transcribed, 440. 
 
 What property is liable to attachment, 440-443. 
 
 "Property " defined, 441. 
 
 Property in hands of a factor attachable, when, 441. 
 
 Partnership property, whether liable to attachment against one 
 partner, 441. 
 
INDEX. 653 
 
 ATTACHMENT— (eontiniied.) 
 
 Section 234, Debt not due attachable, 442. 
 
 ContiDgent debt, how far attachable, 442. 
 Sbotion 235, transcribed, 443. 
 
 Property incapable of manual delivery, how attached, 443. 
 Goods in custom-house, how levied on, 443. 
 
 in hands of assignee, 443. 
 Attachment of a debt owing by a party, how served, 444. 
 Extent of lien of attachment, discussed, 444-446. 
 Section 236, transcribed, 446. 
 
 Defendant's interest in corporation liable to attachment, 440, 446. 
 Certificate of defendant's interest, to be furnished by corporation, 
 
 446. 
 Practice in other States, mentioned, 447. 
 Certificate, how far conclusive, 448. 
 Examination of officers, when allowed, 447. 
 Section 237, transcribed, 450. 
 
 Judgment to be satisfied out of property attached, how, 460. 
 Sheriff levying, and not successor, to sell, 451. 
 Section 238, transcribed, 452. 
 
 Actions to recover notes, <Sec., may be prosecuted by plaintiff, in- 
 stead of sheriif, 452. 
 Section 239, transcribed, 453. 
 
 Bond to sheriff, how disposed of, on judgment for defendant, 463. 
 Section 240, transcribed, 463. 
 
 Discharge of attachment, how effected, 454. 
 Return of property to defegdant, on his appearance, 454. 
 Section 241, transcribed, 455. 
 
 Undertaking on part of defendant — qualifications of sureties, 466. 
 Appraisement of property, manner of, 466. 
 Application for, whether may be granted after judgment, 457. 
 Discharge of attachment, party may move for, when, 458-460. 
 Section 242, transcribed, 461. 
 
 Return of warrant by sheriff, when to be made, 461. 
 Section 243, transcribed, 461. 
 
 Sheriff's fees prescribed, 461-463. 
 Costs and allowance to plaintiff under § 308, when allowed, 463. 
 Attachments in injunction cases, bailable. See Injunction, 380. 
 for contempt See Contempt. 
 ATTORNEY, fraud o^ subjecting him to arrest, 19. 
 
 residing in sister State, subject to arrest here, 19. 
 how far exempted from arrest, 37-39. 
 communications between and client, privileged, 296-298. 
 of receiver, who may be, 508. 
 
 B. 
 
 BAIL, amount of, in action for assault, 14. 
 
 amount of, in action to recover possession of personal property, 23. 
 
 how far sheriff becomes bail, 56, 83. 
 
 sufficiency of, for the limits, 56. 
 
 when may be put in on arrest, 57. 
 
 deposit in lieu of, 57, 79. 
 
 how given on arrest, 58. 
 
 delivery and acceptance of undertaking of, 70. 
 
 justification o/, notice of, and requisites of notice, 71-77. 
 
 manner of, 78. 
 qualifications of, what are, 73. 
 
 of defendant's sureties on attachment, 556. 
 
654 INDEX. 
 
 BAIL — (continued. ) 
 
 exoneration of, 59-61, 66-69,72. 
 may arrest defendant, 61. 
 proceedings against, 63. 
 sufficiency of pleadings in action against, 64. 
 allowance of, 19. 
 
 not justifying, liable to sheriff, 86. 
 motion to reduce, when must be made, 87. 
 
 discharged, by dealings between plaintiff and defendant, when, 91. 
 BANKING ASSOCIATIONS. See Ourpm-ations. 
 BROKER, fiduciary capacity of, 20. 
 when liable to arrest, 20. 
 See Arrest and Bail, 
 BUILDING COVENANTS, defined, 214. 
 
 may be enforced by injunction, 214. 
 See Injunction. 
 
 c. 
 
 CANCELLATION of instruments, compelled, 3U-314. 
 CAUSE OF ACTION. See Action. 
 
 CHARACTER, in action for injuries to, defendant may be arrested when, 15. 
 CHATTELS, enjoyment of, may be protected by injunction, 224. 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY, 104-134. 
 Section 206, transcribed, ^04. 
 
 Replevin, principles and nature of the action of, 104, 106. 
 Object of the action stated, 106, lOY. 
 Trespass and replevin, concurrent actions, 106. 
 "What property is covered by the section, 108, 109. 
 The remedy allowed at the time of issuing summons, or subse- 
 quently, before answer, 109. 
 "At the time of issuing summons" defined, 109. 
 See, also, Attachment. 
 Stay of proceedings, when allowed, 109. 
 Section 20*7, transcribed, 110. 
 
 Ownership must be averred in affidavit, 110. 
 
 averment of, what is a sufficient. 111. 
 Description of property, what is sufficient, 112. 
 Wrongful detention, averment of, essential, 113. 
 Possession by defendant, averment of, how far necessary, 113, 
 
 114. 
 Cause of detention, to be stated, 114. 
 Actual value of the property, to be stated, 116. 
 Whether affidavits may be amended or new affidavits furnished, 
 on motion to set aside, 116. 
 Section 208, transcribed, 1 17. 
 Section 209, transcribed, 118. 
 
 Plaintiff's security and justification, 118. 
 
 Undertaking, object and extent of, 119, 120. 
 
 Action on the undertaking, requisite proof in, what is, 120. 
 
 costs in, 121. 
 Possession of the property pendente lite, who shall have, 121, 
 122. 
 Section 210, transcribed, 123. 
 
 Exception to sureties, when to be taken, 123. 
 Effect of failure to except, 128. 
 to justify, 123. 
 Sheriff responsible for sufficiency of sureties, how far, 124, 125. 
 Section 211, transcribed, 126. 
 
INDEX. 555 
 
 CLAIM AND DELIVERY OF PERSONAL PROPERTY— (continued.) 
 Secjtion 211, Redelivery, defendant entitled to, when, 126. 
 
 Delivery of property to plaintiff, time of, 127. 
 Section 212, transcribed, 12Y. 
 
 Defendant's sureties must justify, within what time, 128. 
 Mode of justification, 128. 
 See, also. Arrest and Bail. 
 Section 213_, transcribed, 128. 
 
 Qualification, and justification of sureties, mode of, 128. 
 See, also. Arrest and Bail, 78-78. 
 Section 214, transcribed, 129. 
 
 Concealed property, how taken, 129. 
 Sheriff may break open doors, how far, 129. 
 Section 215, transcribed, 130. 
 
 Property, how kept by the sheriff, prescribed, 130. 
 Liability of sheriff for safe-keeping, 130, 131. 
 Section 216, transcribed, 131. 
 
 Section not applying where sheriff seized property wrongfully, 
 
 132. 
 Third person claiming the property, remedy of, stated and illus- 
 trated, 132, 133. 
 Section 217, transcribed, 134. 
 
 Notice and affidavit, when and where filed, 134. 
 The action abates, when, 134. 
 COMMERCIAL PAPER, transfer of, restrained or enforced, when. See lN.njNCTioN, 
 
 217-219. 
 COMMITTEE of lunatic and habitual drunkard, actions by and against, 505. 
 
 , not to be sued, except by leave of 
 
 court, 606. 
 CONCEALED DEBTORS. See Attachment. 
 CONTEMPT, arrest for, allowed, 8. 
 
 attachment for, for breach of injunction, 378. 
 affidavits on motion for, 381. 
 bond for appearance to answer for, 382. 
 interrogatories and return of attachment, 382. 
 proof of, what is necessary, 383. 
 judgment of misconduct, form of, 384. 
 interference with receiver declared, 507. 
 disobedience to order of court declared, 634. 
 COPYRIGHT. See Injunction, 227-229, 269. 
 
 CORPORATIONS, may be restrained by injunction, when. See Injunction; 219, 
 263-291, 337-339. 
 members of a, enjoinable, how far, 362. 
 interest of defendant in, may be attached, 440, 446. 
 receivers of, may be appointed, in what eases. See Reoeivebs, 484- 
 496. 
 COSTS and allowance to plaintiff under § 308, when allowed, in attachment, 463. 
 COUNTY JUDGE, power of, to issue order of arrest, 43. 
 
 to grant a provisional remedy, 43. 
 to make order of injunction, 141. 
 COVENANTS, relating to real property, breach of, may be enjoined, when. See 
 
 Injunction, 210-216. 
 CREDITOR'S SUIT. See Reoeivees, 520. 
 CRIMINAL CONVERSATION, defendant may be arrested in an action for, 14. 
 
 is an injury to the person, 14. 
 CUTTING TIMBER, injunction against. See Injunction, 166. 
 
 D. 
 
 DAMAGES, amount of, in action for assault and battery, 14. 
 
 by reason of injunction, mode of ascertaining, 331. 
 amount of, 333. 
 
566 INDEX. 
 
 DAMAGES— (continued.) 
 
 reference to ascertain amount, 334. 
 for infringing copyright, 258. 
 See Injunction. 
 DEATH. See Abatement. 
 
 DEDICATION of highways and streets, what amounts to a, 188. 
 DEPOSIT in lieu of bail. See Bail. 
 DISCHARGE of defendant from arrest on hail or deposit, 5*1. 
 
 to he had at any time before execution, 57. 
 motion for, may be made on affidayits, 92. 
 See Arrest and Bail, 92-101. 
 of attachment, how effected, 454. 
 
 party may move for, when, 458-460. 
 of bail. See Bail. 
 DOCUMENTS, transfer of, restrained. See Injunction, 295. 
 
 E. 
 
 EASEMENTS, how far protected by injunction. See Injunction, 179-190. 
 EJECTMENT, action of, cannot be sustained by mortgagee, 157. 
 
 injunction to restrain proceedings in, 308-311. 
 ELECTION of remedy, to recover possession of property, or damages for the deten- 
 tion, 16. 
 EQUITABLE jurisdiction of Court of Chancery, how affected by the Code, 135-139. 
 
 See Injunction. 
 EMBEZZLEMENT, arrest of female for, allowed, 16. , 
 
 liability of public offioer to arrest for, 18. 
 by public officer of foreign Government, 18. 
 what constitutes an, by officer of a corporation, 20. 
 EXCISE, Commissioners of, jurisdiction of courts to restrain by injunction, 293. 
 EXECUTJON, arrest on, under § 288 of the Code, 101. 
 against the person, may issue, when, 102. 
 under amendment of 1862, 103. 
 on return of, unsatisfied, supplementary proceedings may be had, 
 
 484, 518. 1 
 
 See Eeoeivee, 519. 
 EXECUTORS, trustees, .fee, liable to injunction, when, 294. 
 See Injunction. 
 
 receiver of, may be appointed, when, 475. 
 EXEMPTIONS from arrest, enumerated. See Arrest and Bail, 86-43. 
 EXONERATION of bail, by surrender of defendant, 59-61. 
 how otherwise effected, 65-69. 
 by failure to justify, when excepted to, 72. 
 See Bail. 
 
 F. 
 
 FACTOR, fiduciary capacity of, 20. 
 
 liable to arrest, when, 20. 
 
 See Arrest and Bail. 
 FALSE IMPRISONMENT, liability of defendant to arrest, in an action for, 16. 
 FEMALE, arrest of, for embezzlement, 16. 
 
 cannot be arrested in action for breach of promise to marry, 18. 
 
 arrest of, for what causes, 88-85. 
 
 See Married Women. 
 FERRIES. See Injunction, 204. 
 
 FINE AND PENALTY, action for, under § 179, subd. 2, 17. 
 FISHING, rights to, protected. See Injunction, 204. 
 
INDEX. 657 
 
 FIXTURES, right to, as between heir and executor, 168. 
 what are, 169. 
 See Injunction. 
 FORECLOSURE of mortgage may be enjoined, when, 307. 
 FOREIGN Corporation, how far under control of the courts of this State, 290. 
 attachment may issue against, 396, 442. 
 receiver of, may be appointed, 485, 495. 
 State, not excluded from provisional remedies under our statutes, 19. 
 liability of, to attachment, 408. 
 FRAUD of an attorney, Ac, subjecting him to arrest, 19. 
 of an officer or agent of a corporation, 19. 
 in contracting of debt, what amounts to, 25, 28. 
 in assignment or secretion of property, authorizing attachment, 413. 
 whether, may be set up by sheriff as a defence in action for false levy, 439. 
 FRAUDULENT representations of copartners, arrest of one, for, 28-31. 
 
 assignment, power of receiver to maintain action to set aside, 520- 
 523. 
 
 G. 
 
 OOODS, action to recover possession of. See Claim and Delivery. 
 
 in Custom-house, how levied on, 443. 
 
 in hands of assignee, 443. 
 GUARDIAN, liable to an injunction against waste, 154. 
 
 H. 
 
 HEIRS at law and devisee, injunction against, allowed, 161. 
 HIGHWAYS, dedication of, what is, 188. 
 
 HOUSEHOLDER and housekeeper, defined and distinguished, 73, Yi 
 HUSBAND AND WIFE, wife not liable to arrest for assault and battery, 14. 
 
 husband not liable to arrest on contract or tort of wife, 14. 
 
 See Arrest and Bail. 
 
 INFANTS, receiver of, appointed, when. See Receiver, 479. 
 INJUNCTION, 135-385. 
 
 Introductory — history of the remedy, 135-140. 
 Equitable jurisdiction of Court of Chancery, 135. 
 how affected by provisions of the Code, 139. 
 Section 218, transcribed, 140. 
 
 Writ of injunction, how far abolished, 140. 
 County judge, power of, to make order, 141. 
 General Term, injunction may be granted at, 141. 
 Section 219, transcribed, 142. 
 
 Exposition of the section — object and extent of the rem- 
 edy, 143. 
 What must appear, to entitle plaintiff to the relief de- 
 manded, 143-147. 
 English practice, stated, 143. 
 Particular oases covered by the section, stated, 147. 
 Mandatory injunction, case of, 148, 376-378. 
 Prayer for injunction, complaint must contain a, 148. 
 Cases for an injunction, classified and defined, 149-161. 
 Waste, action for, how far affected by the Code, 151. 
 
558 INDEX. 
 
 INJUNCTION— (continued.) 
 
 Section 219, Waste, action may be brought by a remainder man or re- 
 versioner, 151. 
 by a landlord, 1.^2. 
 by purehasera of interests in lands, when, 
 
 152. 
 by trustees, 153. 
 by tenants in common, joint tenants, <fec., 
 
 163. 
 by heirs at law, 154. 
 by infant en ventre, 154. 
 by a mortgagee, 154. 
 by a grantee of tenant for life, 154. 
 Action may be brought against whom, 154-1 67. 
 against a guardian, 154. 
 against a tenant by courtesy, 154. 
 against a tenant in dower, 155. 
 against tenants for life and for years, 156. 
 against assignee of tenant for life or for 
 years, 155. 
 Tenants from year to year, how far may be restrained 
 
 by injunction, 155. 
 Tenant for life without impeachment for waste, how 
 
 far may be restrained, 155. 
 Mortgagor in possession, enjoined from cutting timber, 
 
 when, 156-158. 
 Mortgagee in possession, enjoined from cutting timber, 
 
 158. 
 Subjects of waste, enumerated, 158-166. 
 Heir at law and devisee, enjoined from waste, pending 
 
 suit, 16*7. 
 Fixtures, the right to, as between heir and executor, 168. 
 as between others, 169, 170. 
 what are, 169-172. 
 Trespass, injunction to restrain from, when allowed, 
 
 172-174. 
 Nuisances, how far restrained by injunction, 174. 
 
 injunction against, on whose application, 
 
 granted, 175. 
 extent of, to authorize an injunction, 176- 
 179. 
 Privileges and easements connected with land, in relation 
 to which injunction will be granted, 179-190. 
 Light and air, 179. 
 Lateral support of land, 182. 
 Support of adjacent land, 184. 
 Party walls, 186. 
 Dedication, 188. 
 Water privileges and rights to water, protected by in- 
 junction, how far, 190-210. 
 Surface water, 190. 
 Subterranean water, 195. 
 Falling water, 198. 
 Littoral rights on navigable streams, 198. 
 
 on innavigable streams, 201. 
 Fishing, 204.- 
 Ferries, 204. 
 
 Agreements, acquiescence, 205. 
 Interference by injunction, 208. 
 Covenants relating to real property, breach of, may he 
 enjoined, when, 210-216. 
 Mode of using, what is a breach as to, 210-213, 
 
INDEX. 659 
 
 INJUNCTION— (eontinued.) 
 
 Section 219, Covenants relating to real property, affirmative and neg- 
 ative covenants, different jurisdiction in re- 
 spect to, 213. 
 Building covenants, defined, 214. 
 
 may be enforced by injunction, 214. 
 Penalty and, liquidated damages, contained in covenants, 
 
 do not prevent interference by injunction, 215. 
 Sale of land, contract for, enforced by injunction, 216. 
 Transfer of eommercial paper, restrained or enforced, 
 when, 217-219. 
 as between partners, 218, 219. 
 Transfer of stocks, enforced or forbidden, when, 219, 
 Sailing of vessel, power of court to restrain, discussed, 
 
 221. 
 Contested probate, power of surrogate to issue special 
 
 letters in, 222-224. 
 Specific chattels, protection of enjoyment of, 224. 
 In aid of an action to recover possession of personal prop- 
 erty, 225. 
 Patents, State courts have no jurisdiction to restrain 
 
 infringement of, 226. 
 Copyrights, English law concerning, 227, 268. 
 
 Foreign authors, 227, 229. 
 Unpublished manuscripts, author's right of property in, 
 protected, 227. 
 Act of Congress in relation to piratical publica- 
 tion of, 228. 
 Etchings and prints, unpublished, protected, 
 228, 229. 
 Publication of letters, authority of the courts to re- 
 strain, discussed, 230-233. 
 Whether letters are within § 9 of the Act of Con- 
 gress, 233. 
 Public lectures, publication of, by student, may be en- 
 joined, 233. 
 Secrets of trade, use of, restrained, how, 234-236. 
 Irahmiarlcs, source of right to, and how far protected, 
 237-253. 
 what constitutes a, 239. 
 Names of hotels, 251. 
 Newspaper, editor and publisher of, liable to injunction, 
 
 when, 254. 
 Publication of libel, whether may be restrained by in- 
 junction, 256, 257. 
 Publication of immoral work, whether may be enjoined, 
 257. 
 when on application of author, 258. 
 Partner, violating partnership agreement, enjoinable, 
 260. 
 whether case for dissolution is necessary, 260. 
 firm name, use of by, 262. 
 carrying on of business after dissolution, 262. 
 Corporations, acts of, may be restrained, when, 263. 
 under Spencer Act of 1825, 263. 
 under Revised Statutes, 263, 264. 
 under the Code, provisions of, considered, 264- 
 
 271. 
 Moneyed corporations, peculiar provisions re- 
 specting, 271-277. 
 Liability of stockholders under act of 1849, 278- 
 
 280. 
 Municipal corporations, defined, 280. 
 
560 
 
 INDEX. 
 
 IKJUNCTION— (continued.) 
 
 Section 219, Corporations — Municipal oorporatione, what acts of, may 
 be enjoined, 280-285. 
 Railroad corporations, particular rules respect- 
 ing, 285. 
 Religious corporation, what is a, 287. 
 
 how far controlled by injunction, 287-290. 
 Foreign corporations, how far under control of 
 the courts, 290, 291. 
 Public officers — courts will not interfere pending suit 
 as to title of the office, 291. 
 Jurisdiction of the court in several oases, dis- 
 cussed, 292. 
 Receivers, rules respecting, 293. 
 
 See also Receivers. 
 Assignees, trustees, executors, tic., interference of, with 
 
 an estate, restrained, when, 294. 
 Married women, property of, to be obtained by hus- 
 band, how, 294. 
 Attorneys, &c., communications between, and client, 
 privileged, 295-298. 
 Documents of client, protected, 298. 
 Legal proceedings, how far restrained by injunction, 
 298-318. 
 Observations on effect of the Code, 298. 
 Proceedings in other courts of the State, 299- 
 
 301. 
 Actions or proceedings in the same court, 301. 
 Actions in foreign courts, 302-306. 
 Against, or by receivers and other officers, 306. 
 Statutory foreclosure, enjoined, when, 307. 
 Summary proceedings of landlord, injunction 
 against, when granted, 308-311. 
 Cancellation of instruments, compelled, 311-314. 
 
 Character of the instrument authorizing cancel- 
 lation, 313. 
 " Administration of assets, jurisdiction of Chancery in 
 respect to, 314. 
 of surrogate, 314. 
 Second clause of § 219, considered, 315-318. 
 Remeval or disposal of property by defendant, enjoined 
 pending suit, when, 316. 
 Section 220, transcribed, 318. 
 
 Time when injunction may be granted, 318-323. 
 At commencement of action, 319. 
 After commencement of action, but before judg- 
 ment, 319. 
 Upon satisfying judge or court by affidavit, 320. 
 Affidavit of plaintiff, 321. 
 
 of some other person, 321, 322. 
 Sufficient grounds must appear, how, 322. 
 Service of affidavits with injunction, 323. 
 Section 221, transcribed, 823. 
 
 After answer, injunction not allowed, except, <fcc., 823. 
 Notice, necessity of, 324. 
 
 Restraint may be ordered until decision, how, 328. 
 See also g 223. 
 Section 222, transcribed, 824. 
 
 History of the provision, 325. 
 
 Provisions of Revised Statutes relative to security on 
 injunction after judgment, unrepealed, 826. 
 Undertaking must be in writing, 327. 
 form of, 327. 
 
INDEX. 561 
 
 INJUNCTION— (continued.) 
 
 Section 222, Undertaking, approval and filing of, 327. 
 aolmowleagment of, 328. 
 to be on part of plaintiff, 328. 
 See also Aerebx and Bail, 49. 
 " with or without sureties," construed, 328, 
 amount of, a specified sum, 329. 
 Liability of sureties for damages only, 330. 
 Liability only on final decision, 330. 
 Damages, mode of ascertaining, 331. 
 Allowable damages, specified, 333. 
 Section 223, transcribed, 835. 
 
 Order to show cause, in discretion of judge, 335. 
 Restriction, in meantime, may be ordered, 336. 
 Security required on such order, 336. 
 Section 224, transcribed, 33*7. 
 
 Injunction to suspend business of a corporation, 337- 
 
 339. 
 Only to be granted by the court or a judge thereof, 338. 
 Notice to proper ofiicers, requisite, when, 338. 
 Security, when required, 339. 
 Section 225, transcribed, 339. 
 
 Motion to vacate or modify injunction, 339, 345-361. 
 Section applies to injunction ex-parte only, 340. 
 Motion, time and manner of making, 340, 359. 
 Affidavits, sufficiency of, on motion, 340-345. 
 Due diligence on part of plaintiff, 345. 
 Section 226, transcribed, 345. 
 
 Affidavits may be used by plaintiff on motion to vacate, 
 
 when, 345. 
 Practice before the Code, 346. 
 English practice, 348. 
 
 Defendant may use his answer, how far, 348. 
 Miscellaneous subjects discussed, 362-385. 
 
 Servants and agents, how bound by the injunction, 362. 
 Members of a corporation, 362. 
 
 Persons not parties to the record, restrained, when, 363. 
 Knowledge of order, when equivalent to service, 364. 
 Amendment of injunction, effect of, 364-368. 
 Appeal, effect of, 368. 
 
 from order at Special Term, 369. 
 after judgment, 371. 
 Abatement, effect of, 373. 
 Lis pendens, effect of, 374. 
 Eenewing an injunction on new matter, 375. 
 Mandatory injunctions, cases of, 376-378, 148. 
 Breach of an injunction and its consequences, 378. 
 Attachment for contempt for breach, 378-885. 
 affidavits on motion for, 381. 
 bond for appearance to answer, 382. 
 Interrogatories, on return of attachment, 382. 
 Proof, what is necessary, 888. 
 Judgment of misconduct, form of, 384. 
 INJURY to the person or character, liability of defendant to arrest in action for, 13. 
 to the person, crim. con. is, 14. 
 liability of wife to arrest in action for, 14. 
 by wife, liability of husband to arrest in an action for, 14, 
 to character, what is, 15. 
 to property, what amounts to, 17, 34. 
 See also Arrest and Sail. 
 86 
 
562 mDEX. 
 
 JAIL LIBERTIES, who are entitled to, 66, 66. 
 sufficiency of bail for, 66. 
 liability of sheriff as bail, 66. 
 See Arrest and Bail, 56. 
 JUDGMENT, form of, in case of contempt, 384. 
 JUSTIFICATION of bail, notice of, and requisites of notice, 71,77. 
 manner of, 78. 
 See Bail. 
 
 LAND, how far a subject of waste, 164. 
 
 privileges and easements connected with, which are subjects of injunction, 
 
 enumerated, 179-190. 
 contract for sale of, how far enforced by injunction, 216. 
 covenants relating to, may be enforced, when, 210-216. 
 See Injmiction. 
 LANDLORD AND TENANT, summary proceeding of landlord against tenant — 
 may be reviewed, 308. 
 
 may be restrained by injunction, on what grounds, 309. 
 LEGAL PROCEEDINGS, how far restrained by injunction. See Injunction, 298- 
 
 318. 
 LIBEL, whether publication of, may be restrained by injunction. See Injunction, 
 
 266, 257. 
 LIEN of attachment, when takes effect, 429, 444, 446. 
 
 See also Injunction, Receivers. 
 LIGHT AND AIR, obstruction of, restrained by injunction. See Injunction, 179. 
 LIS PENDENS, effect of notice of, on disposition of property, 374. 
 
 See Injunction. 
 LUNATICS, receiver of, appointed, when, 479. 
 
 receivers of, may sue in their own name, 492, 605. 
 See Heceiver. 
 
 M. 
 
 MALICIOUS PROSECUTION, evidence of probable cause, what is, 15. 
 
 See Arrest and Bail. 
 MANUSCRIPTS, right of property in, protected by injunction. See Injunction, 
 
 227-233. 
 MARRIED WOMEN, property of, to be obtained by husband, how, 294. 
 
 See Female, Husband and Wife. 
 MEMBERS of Congress, exempted from arrest, when, 35. 
 
 of Legislature, when, and how long, 36. 
 MILITARY forces of State, person belonging to, exempt from arrest, when, 36. 
 MONEYED CORPORATIONS. See Corporations, Injunction, Receiver. 
 MORTGAGES, receiver in relation to, appointed, when, 476-478. 
 MUNICIPAL CORPORATIONS. See Injunction, 280. 
 
 N. 
 
 NE EXEAT, whether abolished by the Code, 7. 
 NON-RESIDENT, may be arrested, when, 11. 
 
 liable to attachment, how far, 899. 
 
 what constitutes a, 399-407. 
 
 See Arrest and Bail, Injunction. 
 NUISANCE, how far restrained by injunction. See Injunction, 174-179. 
 
INDEX. 563 
 
 o. 
 
 OFFICER, public, liable to arrest for embezzlement, 18. 
 
 or agent of corporation, liable to arrest, wlien, 19. 
 
 of a corporation, what constitutes an embezzlement by, 20. 
 
 may be examined as to defendant's interest in corporation, ii'l. 
 
 under Police Act, exempted from arrest, 40. 
 
 of courts of record, "whetlier exempted from arrest, 37. 
 ORDER of arrest, -when made, and its form. See Aerest and Bail, 51-53. 
 
 PARTNER, whether may be arrested for fraud of copartner, 28. 
 PARTNERSHIP agreement, violation of, enjoinable, 260-262. 
 
 property, whether liable to attachment against one partner, 441. 
 receivers of, may be appointed, when. See REOEryERS, 472. 
 PARTY WALLS, interference with, enjoined. See Injunction, 185. 
 PATENTS. See Injunction, 226. 
 
 PERISHABLE PROPERTY, proceedings on attachment of, 436. 
 PERSON, injuries to. See Injury. 
 PERSONAL PROPERTY, recovery of. See Arrest and Bail, 23, 24. See aaim and 
 
 Delivery, 
 PLEADINGS, sufficiency of, in an action against bail, 64. 
 POLICE BOARD may be restrained by injunction, 293. 
 POLICEMEN exempted from arrest, when, 39. 
 
 PRIVILEGES AND EXEMPTIONS from arrest, See Arrest and Bail, 35-43. 
 PUBLIC OFFICER, embezzlement by. See Embezdement. 
 
 pending suit as to title, courts willnot interfere by injunction, 291. 
 See A-rrest and Bail, Injunction, Officer. 
 PUBLICATIONS, editor and publisher may be restrainedfrom printing, how far, 264. 
 of libel, whether may be eojoined, 256, 257. 
 of immoral works, whether enjoinable, 257. 
 See Injunction. 
 
 Q. 
 
 QUALIFICATIONS of bail, what are. See Bail. 
 
 QUO WARRANTO, writ of, proceedings by information in the nature of, abolished 
 and action substituted, 265, 485. 
 
 E. 
 
 RAILROAD corporations. See Injunction, 285. 
 RECEIVERS, 465-532. 
 
 Section 244, transcribed, 465. 
 
 Before Judgment, receiver may be appointed, when, 466. 
 Plaintiff must have commenced action, 466. 
 Either party may apply for a receiver, 467. 
 Party must establish apparent right to the property, 467-472 
 In what cases appointed, enumerated, 472. 
 Partnership cases, 472. 
 Executors, 475. 
 Trustees, 476. 
 Mortgages, 476. 
 Chattel Mortgages, 478. 
 
564 INDEX. 
 
 RECEIVERS-(oontinued. ) 
 
 Section 244, In what cases appointed — 
 
 Vendor and Vendee, 479. 
 Joint Tenants, 479. 
 Lunatics, 479. 
 . Infants, 479. 
 After Judgment, to carry judgment into effect, 480. 
 
 to dispose of the property according to the 
 
 judgment, 480. 
 to preserve property pending appeal, 484. 
 on return of execution unsatisfied, 484. 
 See also Supplementaey Peooeedinqb, 518,619. 
 Corporations, receivers of, appointed, in what eases, 484r-496. 
 Quo warranto abolished, 485. 
 
 Remedies by civil action under §§ 428, 430 of Code stated, 485. 
 Receiver, on dissolution by special statute, may be appointed, 
 
 486. 
 See also Injunction, 268, et seq. 
 Powers and duties of receivers of corporations, 486-496. 
 
 in case of mutual insurance company, 490. 
 Reference, for what purpose may be ordered, 492. 
 Abatement of suits in favor of corporation, not effected by dis- 
 solution, 493. 
 Receivers of lunatics and habitual drunliards may sue in their 
 , own name, 492, 505. 
 
 Foreign Corporation, receiver of, may be appointed, 495, 485. 
 appointment, mode of, prescribed, 496-499. 
 Who may be a receiver, 499. 
 Security, nature and extent of, 501. 
 
 Reference, proceedings on, relating to appointment of re- 
 ceiver, 502. 
 What property vests in a receiver, 503. 
 Actions by receiver, how brought, 504. 
 
 against receiver, 506. 
 Interference with receiver, declared contempt of court, 607. 
 Attorney of receiver, who may not be, 508. 
 Repairs and improvements, how far may be made by re- 
 ceiver, 508. 
 Letting property by receiver, 609. 
 
 Distress for rent under the Code; receiver has power to in- 
 stitute, how, 510. 
 Continuing and finishing the business, 611. 
 Removal of receiver, for what causes, 512. 
 Abatement of cause does not affect receiver, 612. 
 Account, duty and liability of receiver to, 513-516. 
 Compensation, amount of, not to exceed allowance to execu- 
 tors, 617. 
 Receivers upon supplemontarj^ proceedings, under g 292, 518. 
 Section 298, transcribed, 519. 
 
 Judgment debtor, receiver of the property of, may be ap- 
 pointed, 519. 
 Creditor's suit, whether under Rev. Stat, superseded, 620. 
 When title vests in such receiver, 620. 
 Power of receiver to maintain action to set aside fraudulent 
 
 assignment, 620-623. 
 Mode of appointment, 496, 623. 
 
 Whether property must be discovered to authorize a re- 
 ceiver, 523. 
 Order of appointment, not impeachable collaterally, 625. 
 Only one receiver may be appointed, 526. 
 Appointment of same receiver in second suit, 626. 
 As to security of such receivers. See p. 501. 
 Whom the receiver represents, 627. 
 
INDEX. 565 
 
 RECEIVERS— (continued). 
 
 Section 298, Proceeds to be divided according to docket of judgments, 529. 
 
 Powers and duties of such receivers, 530. 
 Section 299, transcribed, 631. 
 
 Title of third person to judgment-debtor's property, how con- 
 tested, 531. 
 Section 244, first clause, transcribed, 532. 
 
 construction of, discussed, B32-534. 
 Second clause — effect of disobedience of order, 534. 
 Third clause — admission of part of claim by the answer, effect 
 of, 635. 
 
 Party may have an injunction when entitled 
 
 to sue, 393. 
 See also Injunction, 306. 
 RECOVERY of possession of personal property, when injunction may be granted in 
 aid of, 226. 
 See Claim and Delivery. 
 REFERENCE, when proper on motion to discharge from arrest, 100. 
 
 on dissolution of corporation, for what purpose had, 492. 
 proceedings on, relating to appointment of receiver, 502. 
 RELIGIOUS CORPORATIONS. See Injunction, 287. 
 REMOVAL from the State, intention of, authorizing arrest, 11. 
 See Arrest and Bail. 
 
 of property, what is sufficient evidence of intent of, 31-33. 
 by defendant, enjoined, pending suit, 316. 
 restrained by attachment, 411. 
 what amounts to a, 412. 
 See Attachment, Injunction. 
 REPLEVIN. See, Claim and Delivert, 104-134. 
 RESIDENCE, what constitutes a change of; 12. 
 
 See Non-residence. 
 RUNNING WATER. See Injunction, 190. 
 
 s. 
 
 SALE of land, contract for, enforced by injunction, how far, 216. 
 SECURITY, on arrest, plaintiff to give, 49. 
 
 on claim and delivery, by plaintiff, 119. 
 
 exceptions to by defendant, 123. 
 
 by defendant, when entitled to redelivery, 126. 
 
 justification of, 127. 
 
 qualifications of, 128. 
 
 on injunction. See Injunction, 324-339. 
 
 on attachment, by plaintiff, 422. 
 
 by defendant on return of property to him, 445. 
 
 6j/ remMr, on appointment. See Eeoeivebs, 501. 
 
 bond of, how disposed of, on judgment for defendant on attachment, 4od. 
 SERVICE of order of arrest, how made, 63. 
 
 of affidavits with injunction order, 323. 
 of warrant of attachment, 425. 
 See Sheriff. 
 SEDUCTION, defendant may be arrested in an action for, 15. 
 SHERIFF, not exempt from arrest, 40. 
 
 to serve order of arrest, how, 63. 
 
 to file the affidavits on which arrest is made, 54. 
 
 arrest by, how made, 54. 
 
 not liable for rescue on mesne process, 55. 
 
 how far he becomes bail for prisoner on the limits, 66. 
 
 deposit with, in lieu of bail, manner of, 79. 
 
 payment of money into court by, 80. 
 
 liability of, on default in payment, 80, 81. 
 
 liability o^ as bail, what constitutes, 83-86. 
 
566 INDEX. 
 
 SHERIFF— (continued.) 
 
 proceedings against, by action only, 85. 
 powers of, as to bail not justifying, 86. 
 responsible for sufficiency of sureties, how far, 124, 125. 
 concealed property, how taken by, 129. 
 may break open doors, how far, 129. 
 replevined property, how kept by, 130. 
 See Claim and Delivery. 
 
 duty of, io executing warrant of attachment, 424. 
 duty of, as to property attached. See Attachment, 424-461. 
 fees of, in proceedings on attachment, 461-463. 
 defences of, in an action against him for false levy, 439. 
 SHIPS. See Vessel. 
 
 SPECIFIC PERFORMANCE. See Injunction, 210-21Y. Receivebs, 479. 
 STATUTES, penal and remedial, distinguished, 17. 
 
 STAY OP PROCEEDINGS, when allowed in action for claim and delivery, 109. 
 STOCKS, transfer of, enforced or forbidden, when. See Injunction, 219. 
 STOCKHOLDERS, liabilities of, under act of 1849, 278. 
 who are, within the act, 280. 
 See Injunction, 263-291. 
 SUMMARY PROCEEDINGS of a landlord, mode of, 308. 
 may be reviewed, 308. 
 
 may be restrained by injunction, on what grounds, 
 '309. 
 SUPPLEMENTARY PROCEEDINGS cannot be had against a corporation, 339. 
 
 against judgment-debtor on return of execu- 
 tion unsatisfied, 484, 618. 
 jurisdiction of court, 519. 
 if creditor's bill superseded, 520. 
 See Receivebs, 579, et seq. 
 SURETIES. See Bail, Security, UndertaUng. 
 
 T. 
 
 TENANTS in common and joint tenants, waste by, enjoinable, 153. 
 
 from year to year, restrained from injuring premises, 156. 
 
 for life, without impeachment for waste, restrained from injuring the in- 
 heritance, 156. 
 
 See Injunction, 160-166. 
 
 summary proceedings against, mode of, 308. 
 
 joint, receiver of, appointed, 479. 
 
 distraining, 509. 
 TRADE, secrets of, protected by injunction, 234-236. 
 TRADEMARKS, injunction to restrain use of, 237-253. 
 TRESPASS, action of, how affected by the Code. See Claim and Delivket, 104-134. 
 
 injunction to restrain from, when allowed, 172-174. 
 TRUSTEES. See Executors. 
 
 u. 
 
 UNDERTAKING, by plaintiff, before order of arrest granted, 49. 
 
 to recover possession of personal property under § 179, subd 
 
 23. _ 
 in an action for claim and delivery, 118-122, 127. 
 on applying for an injunction, 324-386. 
 on applying for warrant of attachment, 423. 
 
rsTDEx. 567 
 
 trNDEETAKING— (continued.) 
 
 hy defendant ; to be executed by bail on arrest, form and effect 
 
 of, 58. 
 See, also. Arrest and Bail, "73. 
 delivery and acceptance of, 70. 
 waiver of exception to, what is, "70. 
 
 new bail requiring new undertaking, 72. ' 
 
 in action for claim and delivery, when claiming return of prop- 
 erty, 126. 
 for appearance to answer in case of contempt, 380. 
 on attachment, 456. 
 See Sail, Security. 
 
 V. 
 
 VAEIANCE of copy order served, how far vitiates arrest, 64. 
 
 between affidavits and complaint, effect of to discharge defendant from 
 
 arrest, 89. 
 effect of to discharge bail, 89, 9*7. 
 VENDOE and Vendee, receiver of, appointed in suit for specific performance, 479. 
 VESSEL, sailing of, power of court to restrain, discussed, 221. 
 sale of, on attachment, manner of, 437. 
 
 w. 
 
 "WAEEAJNT of attachment. See Attachment, Service, Sheriff. 
 
 WASTE, action of, abolished by the Code. See Injunction, 151-172. 
 
 WIFE. See Husband and Wife, Married Woman. 
 
 WATEE PEIVILEGES, protected and enforced by injunction. See Injunction. 
 
 WITNESSES, exonerated from arrest while attending court, 36. 
 
 waiver of privilege by, 40. 
 WEONGFUL TAKING, what constitutes a, 23. 
 
 actual detention necessary, to arrest defendant in an action 
 
 for, 24. 
 form of prayer for judgment in an action for, 24.