14 How. Pr. 131 | N.Y. Sup. Ct. | 1857
The plaintiffs are nurserymen, engaged in the business of selling fruit-trees and shrubbery in or near Rochester. The defendant was a young man—his father’s family residing in Orleans county, in this state. He spent a portion of the summer and fall of 1856 in the state of Wisconsin, in obtaining orders and contracts for the delivery and sale of trees, and nursery articles. In October he visited the plaintiffs, and made an arrangement with them by which he sold and assigned to them the orders and contracts obtained by him, for the consideration, as expressed in the contract, of the sum of $2,648.43; and he authorized the plaintiffs, through him, to fill the orders and contracts, and to receive the full sum of $2,648.43, with any expenses they should incur in -delivering the trees, or in collecting the money therefor. He accepted the agency from the plaintiffs to deliver the trees, and receive for them the pay, until they should receive the aforesaid sum; and he agreed to remit to the plaintiffs, as collected, by drafts on New-York, until the full sum aforesaid should be paid to them, and thereupon the plaintiffs were to assign to him and release all further interest in the orders and contracts. The plaintiffs agreed to perform on their part. The contract was in writing.
The plaintiffs furnished the trees and nursery property, and, upon their arrival in Wisconsin, the defendant delivered them to the respective purchasers, and received the pay therefor. He made no remittances to the plaintiffs. Early in December, the plaintiffs received letters from the defendant, written at Madison, in Wisconsin, informing them that he had delivered the trees and received the money, amounting to $5,800, and had lost all the proceeds of the sales except $280. The allegation of the defendant is, that the money was in a pocketbook, in a side coat-pocket, and that it was stolen from him while in the cars near Madison, or at the depot in Madison, on the 17th day of November, 1856.
The plaintiffs, in their first cause of action, allege, substantially, that they appointed and constituted the defendant their agent and servant to deliver the property owned by them to the purchasers, or contractors, in Wisconsin, and to receive the money to be paid therefor. That the defendant accepted the appointment; that the property [trees,&c.J was placed in his hands; that the defendant delivered the property to the contractors and purchasers, and received therefor the sum of $2,648.43, over and above expenses. That the defendant being so possessed of the money belonging to plaintiffs, and being their agent and servant, with intent to embezzle the same, did, on or about the 17th day of November, at Madison, fraudulently, &c., secrete and make way with, and convert to his own use, the money— the property of the plaintiffs, to the amount of $2,648.43, and wholly neglecled and.-refused to produce and pay over to the plaintiffs the money, or any part of it.
The second cause of action is for a conversion of the money.
I shall not attempt to set forth here the substance of the affidavits read upon the motion. There were some thirty of them. They were mostly taken in Wisconsin—both parties having resorted to witnesses there, mainly upon the litigated question, whether the defendant had actually lost any money. Upon this question the evidence adduced by the plaintiffs, as furnished by the affidavits, is entirely circumstantial—consisting of a great variety of facts, tending pretty strongly to produce conviction that no money was lost by the defendant. Some of the facts stated in the affidavits are mere hearsay.
On the part of the defendant, we have his positive affidavit of the loss of the money and of the circumstances, and of his acts and doings in the premises. Also, many affidavits in which facts are stated explanatory of facts and circumstances put forth in the affidavits read on behalf of the plaintiffs, and some affidavits tending to show the loss of the money.
The principal positions taken by defendant’s counsel are,
1. That the affidavits, upon which the order of arrest was made, do not show a cause of action for which the defendant was liable to arrest.
2. Assuming that the affidavits first used were prima facie sufficient, then taking all the affidavits, as read on this motion, upon the question of embezzlement or conversion, the plaintiffs fail to establish any cause of action : or rather, as a naked question of fact, the weight of evidence is with the defendant; and that the court, upon this motion, must decide upon the cause of action in the same manner it would decide were the cause actually tried by the court, and the same evidence should be produced.
3. As to the residence of the defendant, or his intention to leave the state, the position is the same, viz., that they are questions of fact to be decided by the court, and that the weight of evidence is with the defendant.
The first question arises from the nature of the relations existing between the plaintiffs and defendant, as disclosed by the affidavit of one of the plaintiffs, in which the contract between the parties, as substantially hereinabove stated, is set forth. This written contract was probably drawn by the parties. It is brief, and not very artistic. That the parties intended to create a special agency and trust in the defendant, I have no doubt. The affidavits disclose the nature of the business of the plaintiffs, and the special manner of conducting it by agents. The agents receive the trees and shrubbery, deliver them, or sell and deliver them, receive the pay, and immediately, upon the first opportunity, remit to the plaintiffs.
It appears, from the contract, that the plaintiffs purchased of the defendant all the orders he had taken, and all the contracts
By the Code, § 179, subdivision 1, a defendant may be arrested, for injuring or for wrongfully taking, detaining, or converting property; and, by subdivision 2, for money received or property embezzled, or fraudulently misapplied, by a public officer, and by an attorney, solicitor, or counsellor, or by an officer or agent of a corporation, or banking association, in the course of his employment as such, or by any factor, agent, broker, or other person in a fiduciary capacity.
The defendant was an agent. Was he an agent in a ¿fiduciary capacity? I think he was. Special trust and confidence were reposed in him. He received the trees, &c., in trust, to deliver them to those persons who had ordered them, or contracted to purchase them ; and he was to receive the money in payment for them, from those persons as collected, and remit the money by draft on New-York. He had no discretionary powers. No power to make contracts, nor to deliver any of the property to any other than those persons who had entered into contracts. He received the trees, &c., in trust and confidence, and the money, when paid to him, in the same character.
In Burnham agt. Casey, (4 Sand. S. C. R- 707,) the defendant received from the plaintiff money to be paid directly to another person; he failed to pay it over, and it was held that he was liable to arrest, on the ground that he received the money in a fiduciary capacity.
In Stoll agt. King, (8 How. Pr. R. 298,) it was held, by Harris, Justice, that an agent, employed to collect moneys for his principal, who collected and failed to pay, was liable to arrest; that in such a case the agent assumed a special trust, and acted
The present case is very different from Goodrich agt. Dunbar, (17 Barb. 644.) The defendant there was much more than an agent in a fiduciary capacity. The learned justice, on page 646, gives us, however, his construction of the Code. He says, the term “ in a fiduciary capacity,” tends to show what is meant by factor, agent, broker, viz., one in whom trust is reposed. Such as is usually reposed in those persons in their ordinary and regular business : that is, a trust that they will sell and immediately remit, the amount, after deducting their commissions. In my opinion, the defendant was an agent acting in a fiduciary capacity; and if so, he was liable to arrest in an action for money received as such agent in such capacity, upon failing to pay it to the plaintiffs. And I suggest, in case he lost the money, or it was stolen from him under such circumstances as would exonerate him, as such agent, from liability, this would be matter of defence to the action, upon the trial. This view was not taken, however, upon the motion, and the plaintiffs, in their complaint, have gone further. After alleging the facts constituting the agency, and the receipt of the money by the defendant, they allege that he embezzled it; and much the greater portion of the argument of counsel was devoted to the question, whether the money was actually stolen from the dedefendant :—the defendant’s counsel maintaining his proposition as secondly above stated. He insisted that the court should carefully weigh and consider the issues of fact, thus made, and if, in the opinion of the court, the weight of the evidence was in favor of the defendant, then that the order of arrest should be vacated. He cited Hernandez agt. Carnobeli, (10 How. Pr. R. 433,) and The Republic of Mexico agt. Arrangois and others, (11 id. 1,) and Corwin agt. Freeland, (2 Seld. 565.)
It must be admitted that the remarks of the learned justice, in the two cases in Howard, countenance the position of the counsel. In 10 How. 449, he says, “ The Code now permits a partial trial of a cause upon a motion to discharge an arrest.”
With great respect for the opinion of the learned justice, I am not able to agree with him, in that class of cases, when the same facts which constitute the cause of action justify the arrest. The case in Selden is no authority for such position. It may be said, that that case settled the much litigated question, whether the facts justifying the arrest should not,.in a case like that, appear in the complaint, as the cause of action, so as to enable the defendant to put them in issue.
It is provided in the Code, that a defendant may be arrested when he has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, &c. (§ 179, sub. 4.) In those cases, where the action was simply to recover the debt, and nothing was said in the complaint about the fraud, or its having been fraudulently contracted, the question was, whether, upon an affidavit of the indebtedness, and showing that the debt was fraudulently contracted, the defendant could be arrested and held to bail. This question was greatly litigated, and learned judges were divided upon it. The court of appeals held'that the Code authorized the arrest, upon a proper affidavit showing that the debt was fraudulently contracted, and in an action simply to recover the debt, nothing being alleged in the complaint touching any fraud.
Now, this decision has not the slightest application, in my opinion, to the question we are considering. Nor does it justify
When it is established that there is a class of cases in which the defendant may be arrested upon facts aliunde the cause of action, it follows that, upon a motion to vacate the order of arrest, the court or judge must pass upon the issue raised by the affidavits. Such issue can never be presented to the jury. It is an issue outside the issue raised in the action. There are cases where a defendant may be arrested and held to bail, because he is a non-resident. The question of non-residence is a question having no relation to the action, but to the remedy, and must be tried by the court. And so in a case where the action is for the debt simply, and the defendant has been arrested on an order founded on an affidavit that it was fraudulently contracted. And so in the cases under the 5th subdivision of § 179, relating to the defendant’s removing or disposing of his property, or being about to do so, with intent to defraud his creditors. •
In short, 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 carefully 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 may and will be tried by a jury when the action is tried, and the verdict, which establishes the cause of action,
It is said, that the Code has changed the practice. What was the practice before the Code, and what change has been effected! The practice of the king’s bench and exchequer was to reject supplemental or explanatory depositions to rectify an omission, or to explain an ambiguity in the original affidavit of debt. The English court of common pleas, in case the affidavit to hold to bail was defective, exercised its discretion in reviewing or rejecting supplemental and explanatory affidavits. Allowing them to be read is considered an indulgence and a favor that ought to be very seldom and very sparingly conceded. These rules apply to the plaintiff only, never to the defendant. In the king’s bench and exchequer, the defendant was not permitted to use cross or counter-affidavits. This was the general rule. Two or three cases are stated by Petersdorff, which he regards as inconsistent with the general practice. The rule rejecting counter-affidavits only extends to such as attempt to impeach the facts connected with the merits of the cause. The defendant could disclose by counter-affidavits, new circumstances not invalidating the plaintiff’s prior statement—as that the defendant was privileged from arrest, or had been before holden to bail for the same cause of action. (Petersdorff on Bail, 190-194.)
We have here, briefly, the general practice in the English courts. Petersdorff (hen adds: “As the court of common pleas will, in some cases, admit supplemental and explanatory affi davits, it follows that, under peculiar circumstances, it could not, conveniently with justice to the defendant, reject counter-affidavits negativing the facts disclosed in the first deposition. Conformably with this indulgence, when the right to bail is discretionary with the court, as in actions for torts and other injuries, creating a claim for unliquidated damages, that court, in determining whether an order to obtain special bail shall be granted, will permit a contradictory affidavit to be read on the part of the defendant; but this privilege of using counter-affi
The rule that the court will not try the merits of the cause upon affidavits, runs through all the Énglish cases. The language used is, the merits of the cause shall not be determined on motion; neither will the court put a slur upon the plaintiff’s cause, which ought to come down fairly to trial, without prejudice. (Salk. 100; Bac. Ab. Bail in Civil Actions, B.) The cases, 6 Dow. & Ryl. 245; Barn. & Aid. 904; 2 Chit. 20, are special cases, but they show the general rules. So the cases in our own court prior to the Code. (Welch agt. Hill, 2 J. R. 100; Watkinson agt. Laughton, 4 id. 307; Hart agt. Falconer, 5 id. 262; Jordan agt. Jordan, 6 Wend. 524.)
It is said that the Code has changed the practice, or introduced a new principle into the law of bail. I concede that the practice is changed, or modified in some respects by the Code; but I find nothing which requires that the court, upon the motion to vacate the order of arrest, should grant the motion in all cases, when the evidence, as furnished by the affidavits touching the cause of action, preponderates in favor of the defendant.
The Code specifies the cases in which the defendant may be arrested and held to bail. (§ 179.)
The defendant may apply, on motion, to vacate the order of arrest, or to reduce the amount of bail. (§ 204.) If the motion be made upon affidavits on the part of the defendant, and not otherwise, the plaintiff may oppose the same by affidavits, or
The Code certainly says nothing of any distinction between cases in which th.e cause of action and arrest are the same, and cases where the facts authorizing the order of arrest, are different from, and independent of the facts constituting the cause of action. But does it follow that the court, in considering the facts disclosed by the affidavits upon the motion, shall apply, in both these classes of cases, the same rules'? I think not. There is nothing in the Code requiring this. The principles applicable to the two classes of cases "are, and always have been entirely different. In one class, the facts are outside the cause of action, and have no necessary connection with it. The jury can never pass upon these facts. The court must, from the nature of the case, decide the question—a question collateral to the cause of action, not affecting the action in the least, but af feeling the plaintiff’s remedy. The decision of the court is final. The question can be no further litigated except upon appeal.
In those cases where the facts constituting the cause of action and authorizing the arrest are the same, a jury, upon the trial of the issues will pass upon them; and unless there is a very decided preponderance of evidence in favor of the defendant, upon the motion to vacate the order of arrest, in my opinion, the court ought not ic vacate the order, and thus “put a slur upon the plaintiff’s cause, which ought to come down fairly for trial,-wdthout prejudice.”
I am not able myself to perceive any good reason why the courts might not well have held, under these provisions of the
But I will not pursue these suggestions fürther, as they are of no great practical importance, provided the proper principles are applied to the evidence produced upon the motion. But I will again remark that, in my opinion, there is nothing in these provisions of the Code inconsistent with the application of the old rules and practice to this motion. The case of Copeland agt. Childs, (18 Eng. L. & Eq. R. 375,) is, in principle, in point. It was decided in 1853.
By a recent statute, the plaintiff, upon showing that he has a good cause of action to the amount of ¿620 6s. at least, and that the defendant is about to depart the country, may obtain an order of arrest. The statute gives the defendant liberty to apply to a judge, or the court, to be discharged out of custody. The defendant applied to set aside the order of arrest, &c., and proposed, by affidavit, to show that the plaintiff had no cause of action; that he made no promise binding in law, as he was not of age at the time of the promise. Coleridge, J., said, he could not enter into the merits of the case. It would be trying a plea of infancy upon the merits. After hearing argument, and adverting to the old practice and the statute, he remarks : “ One of these points goes to the foundation of the action ; that is, directly to the merits. The other is a matter collateral, namely, whether the defendant is about to quit the country. I quite agree that there is nothing in the words of
I give this long extract, as it so clearly and fully expresses my own views upon the subject; and I think the provisions of our Code, touching the question under consideration, could well have received the like construction. But a different view, to a certain extent, in several cases, has been taken. (See Falconer agt. Ellis, 1 Code R. N. S. 155; Barber agt. Hubbard, 3 Code R. 169.)
Although it should perhaps be regarded as settled, that the defendant may make affidavits upon the merits of the action, I do not understand or regard it as settled, that the court is, in all cases, to consider the evidence, and decide simply as it shall preponderate upon the question of fact. One, and perhaps more of the justices, has expressed an opinion in the affirmative. It is important that the practice under the Code should be settled,
Upon the present question, the proposition, that in all cases, the merits of the action may be contested and litigated, upon a motion to vacate the order of arrest, and that the court must decide the disputed question of fact, in the same manner and upon the same principle as though the cause itself was upon trial by the court without a jury, is, to me, somewhat alarming. It is a great innovation upon all our previous practice and notions, and, in my opinion, in practice it will be found to be extremely dangerous and pernicious.
Numerous cases may be put, in which the affidavits of the plaintiff and defendant, touching the cause of action, are in direct conflict, and perhaps, at the time, neither party can produce any further evidence. Is the court to discharge the order of arrest? The plaintiff, in his affidavit, states that defendant met him, and took from him his horse, and rode off. The defendant admits this, or alleges he purchased the horse and paid for him. The horse cannot be found, and the defendant is leaving the state for parts unknown. Am I to discharge him from arrest? The plaintiff, in his affidavit, states that the defendant assaulted and beat him. The defendant positively denies this. No other persons were present. The defendant is a transient person, and on his way out of the state. Am I to discharge him ? Again: numerous persons saw the affray, and, as usually happens, differ in their relation of the disputed facts —which struck the first blow: if the plaintiff, then was the defence unreasonable and excessive, so as to make the defendant liable in the action. Am I to hear all the mass of conflicting evidence upon the motion to vacate the order of arrest, weigh and consider it carefully, and decide as though the cause was on trial by me without a jury? Are the parties to be put to this great trouble and expense in this stage of the proceedings? —the decision of the court not resulting in a decision of the
The case now under consideration presents as fair a case as any by which to test the practical application of the principle I am combatting. The plaintiffs allege that the defendant has been guilty of embezzling and converting their money in Wisconsin. He denies it, and alleges a loss of the money. The truth or falsehood of these allegations is to be established on the trial by a great variety of facts and circumstances. Some thirty affidavits have been read upon this motion—most of them taken in Wisconsin, and most of them relating to the question whether the money was stolen from the defendant. Am I to go into a careful analysis and consideration of these affidavits, and ascertain, according to my notion, on which side of the question the evidence preponderates, and pronounce my verdict, in a case quite doubtful, and very difficult—a case peculiar, according to all our notions of evidence and of trial, for a jury: a case which could not be tried by the “ court, unless the parties waived a jury trial—with the assent of the courtand the court, if the parties should assent, would probably not consent to try it.
When facts are proved, from which the main fact in issue may, by a process of reasoning, be inferred, the question is always one for the determination of which a jury trial is peculiarly adapted. A thousand facts and circumstances are to be weighed and considered, must the court, upon this motion, analyze, arrange and consider minutely, all these facts and circumstances and come, perhaps doubtingly, to a decision upon the precise question which, when the cause shall be tried, is to decide the whole cause 1 In many cases the discharge from arrest would defeat the plaintiff entirely, so far as the collection of his demand is concerned, though he may proceed in his action and obtain judgment.
Again: this practice, when it is generally understood, will be extremely onerous and embarrassing to courts, parties and counsel. A large portion of this class of cases will be subjected to a trial before the court, upon a motion to vacate the order of
It is said, that if there is no cause of action the defendant ought not to be held under arrest. This is undoubtedly true; but who shall decide whether there is actually a good cause of action against him 1 and when shall this decision be made I The law, I had supposed, determined this, and that the jury should decide, unless the case, upon investigation, should appear so clear that the court would take it upon itself to decide, by directing the verdict. The law does not, and never has claimed that it is a system so perfect that, in its administration, no injury or inconvenience could result to any one.
It has, however, its remedies, not in all cases adequate to redress all grievances. If the arrest is malicious, the defendant has his: remedy as heretofore. He may suffer from the arrest, and yet have no redress. This was always so. In changing the law and the practice as it has heretofore existed, it should always be considered whether we may not introduce much greater injury and inconvenience, than has arisen from the former practice.
In my opinion, and yielding a proper respect to the decisions which have been made under the Code, the court should not, in the class of cases we are considering, vacate the order of arrest, unless the facts show clearly that the plaintiff has no cause of action. If the affidavits raise a fair question for the jury, upon the merits of the action, the court should not interfere. Such has been the law, and such I understand it still to be; and there has been no serious complaint, or cause of Complaint of the law, as it has been in this respect heretofore administered.
If the defendant succeeds upon the trial, he and his bail are
When the question upon which the right to arrest and hold to bail is distinct from the facts constituting the cause of action, and collateral to the cause of action, the court must decide the question simply upon the preponderance of the evidence. Such question can never be submitted to the jury.
It has been suggested that the principles of the Code upon these motions are similar to the doctrine of a court of equity upon a motion to dissolve an injunction or discharge a ne exeat, &c.. 1 have already written quite too voluminously in this case. My apology is, that the question is one of great practical importance. I will however remark, that I do not see the similarity, or that the cases are analogous. Courts of equity acted without a jury, and decided disputed questions of fact.
Again : an injunction often affected most seriously the rights of a defendant, during the pendency of the suit, to the enjoyment of property in his possession, and apparently his. The suit in equity generally related to property, and the injunction related to property.
In an action at law for the recovery of damages, nothing can be taken from the defendant till judgment is recovered against him. Neither his property nor any of his rights to property can be affected during the pendency of the action. In the action at law, it appearing in the manner provided by the law, that the defendant has wronged the plaintiff, and that it is a case in which, if the plaintiff recovers judgment, he is entitled, as a part of his remedy, to imprison the defendant, the defendant is bound to furnish sureties for his personal presence, so that the plaintiff may have the remedy provided by the law for the col
Having come to the conclusion that the questions of fact, so much litigated upon this motion, are questions involving the merits of the action, and that they are peculiarly proper for the jury, I decline to express any further opinion upon them, and deny the motion.
It will not be necessary to pass upon the question as to the residence of the defendant, or his intention to remain from the state. If the decision of the motion depended upon these questions, I should feel called upon to decide them, inasmuch as they are questions not involved in the cause of action.
The motion to vacate the order of arrest is denied, with ten dollars costs.