Northern Railway Co. of France v. Carpentier, 13 How. Pr. 222

Northern Railway Co. of France v. Carpentier

13 How. Pr. 222 | N.Y. Sup. Ct. | 1856

Davies, J.

Section 179 of the Code declares that “ no-female shall be arrested in any action, except for a wilful injury to person, character or property.”

It follows that where a female has committed a wilful injury to property she may be arrested.

*261It was contended in the argument that the shares and coupons mentioned in the complaint were not property, and therefore the arrest could not be sustained.

I think the averments in the complaint are sufficient to sustain the position that these shares and coupons were property, and the property of the plaintiffs, and that the same were converted with the intent to deprive the plaintiffs of the benefit of the same, as property.

The next question and the grave one is,—What is a willful injury to property ? The counsel for the defendant contends that this means only a willful defacing of it, or a willful depreciation of it by reducing its value; that its total destruction or disposition is not an injury. Bouvier says:—“ Injuries to personal property are the unlawful taking and detention thereof from the owner.” (1 Law Dict., 636). Webster defines “injury” to mean in general any wrong or damage •done to a man’s person, rights, reputations, or goods.

We find in this case that the defendant herein was aiding and assisting in taking from the owners and converting into money, and fleeing the country therewith, the property of the plaintiffs, and consequently detaining the same from the owners.

This, therefore, is an injury to personal property. Is it wilful? Webster defines “ willlful” to mean, “ By design, with set purpose;” and Bouvier, (2 Law Dict., 656), declares the word “ willfully” to mean intentionally.”

Applying these definitions to the facts stated in the complaint, there can be no room for doubt that the acts complained of were injuries to the personal property of these plaintiffs, and that the same were done willfully or intentionally.

The defendant, Felicité Dubud, has therefore, on the facts stated, committed a willful injury to the property of these plaintiffs, and is liable to be arrested therefor. ,

The counsel for the defendant pressed on the argument, as quite controlling this motion, the decision by Judge Mason, in Tracy v. Leland, (3 Code R., 37, 2 Sand. S. C. R., 729). In that case the defendant had been arrested on the allegation that she had concealed, removed or disposed óf a piano belonging to the plaintiff. The judge says that the defendant cannot be *262arrested except for a willful injury to property, and that it is-difficult to understand how a mere detention or concealment of a piece of furniture is a willful injury to it. But he says : “ Had the defendant broken it to pieces, or damaged it intentionally so that its value was thereby lessened or destroyed, that would be a willful injury within the meaning of the act.”

It seems to me that this is a direct authority for sustaining the order of arrest in this case.

Here the stock and coupons have been destroyed as such. They have been converted into money, and that is. beyond all question an injury to the plaintiffs’ property.

That money has been converted to the defendant’s own use, not retained and concealed as the property of the plaintiffs,, which would be a legal conversion, and for such Judge Mason thought a female cannot be arrested. But I understand his opinion to sustain an order of arrest upon facts like those disclosed in this case.

Having no doubt in my own mind on the subject, I must deny the motion made to vacate the order of arrest, on behalf of the defendant, Felicité Dubud.