Bushnell agt. Bushnell.

learned counsel for the defendant on the argument, that the defendant might be arrested under the Code; and this seemed to be conceded by his antagonist. But I apprehend these gentlemen were both mistaken. The only clause which has the least resemblance to such a case is the 5th subdivision of § 179, which authorizes an arrest when the defendant has removed or disposed of his property or is about to do so," with intent to defraud his creditors." This, however, has clearly no application, for the reason that the wife can not be deemed a creditor who is to be defrauded. It is true that an injunction may issue to restrain a defendant from removing his property beyond the jurisdiction of the court; but that does not prevent him from taking passage on board of a steamer and going to foreign parts; or crossing the river from New York to New Jersey; and if his property is all carried with him in his pocket, who is to reach or punish him for the contempt? Considering the facilities for leaving the state, it is obvious that in a case of this kind, all process which gives the defendant any liberty, after it is served, before it requires him to give bail, must fall short of the exigencies and the justice of the case.

In view therefore of the fact, that the Code has not expressly abolished the writ, nor given any thing as a substitute therefor; and deeming the power of awarding such process essential to the exercise of the legitimate powers of a court of equity, and not to be taken away by implication, I am constrained to hold that this court still possesses the authority to retain a suitor by

ne exeat.

I am not unaware that this conclusion is contrary to the declared intention of the Code makers. They say in their report, "the writ of ne exeat or equitable bail, we propose to abolish as unnecessary to our system." "I can not," in the language of Justice EDMONDS in Forrest agt. Forrest (5 How. Pr. R. 125, and 10 Barb. 48), "receive the avowal of their intention in recommending the law, as conclusive evidence of the intention of the legislature in passing it, nor as any thing but very imperfect evidence of its real meaning." These same gentlemen informed us that by the aid of their system of special pleading, they could "frame a Code of legal procedure, simple in its construction, VOL. VII

50

Bushnell agt. Bushnell.

easily understood, and efficient for all the purposes of justice." And yet, special pleading has been tried, and in part, at least, abandoned; and we look in vain for the performance of the flattering promises. It is unnecessary to tell any respectable member of the profession that these objects have not been accomplished. The fact is too well known, too universally acknowledged to need repetition. Indeed, if any thing more was designed than to confo und lawyers, perplex judges, increase litigation, and bring the administration of justice into confusion, uncertainty and disrepute, the Code has been as complete a failure as can be found in the annals of legal quackery.

It is proper to state, however, in this connection, a circumstance which is not noticed in the opinion of the court in Forrest agt. Forrest, nor in the adverse opinion of the Superior Court in Fuller agt. Emeric (2 Sand. S. R. 626), viz: that it was true, to a certain extent, that the writ of ne exeat was rendered unnecessary by the original Code; for that contained a provision for arresting a defendant who is "not a resident of the state, or is about to remove therefrom" (§ 156, Code 1848). That clause might have been allowed by the commissioners to be a substitute for the writ, but it was repealed in 1849; and thus the argument that the writ is unnecessary because of a substitute, is annihilated; and by the same rule that we could infer from the declaration of the commissioners, their intention to abolish it, we should also infer from the act of the legislature a design to retain it.

It would seem, indeed, that section 156 was originally the principal foundation for arrest, and that it was specifically designed as a substitute for equitable arrests. Its terms were of a general character requiring merely an affidavit of a sufficient cause of action, and of the non residence of defendant or his intention to remove from the state; and this last clause is declared not to be applicable to the particular causes of arrest enumerated in section 154. Of this title, the commissioners say in their report, we have adhered generally to the principle of the existing laws, although in some respects, we have restricted the right of arrest, particularly by requiring in all cases an order of a judge, and in most cases, an affidavit that the defendant is not a resi

66

Johnson agt. Snyder.

dent of the state, or is about to remove therefrom" (Comm'rs Rep. p. 161). It is clear that these "most cases were those covered by section 156 which was changed by the legislature so as to leave no substitute or provision for equitable actions. The motion must be denied with $10 costs.

SUPREME COURT

JOHNSON agt. Snyder.

Where one copartner, with the consent of the other, made an assignment of a portion of the partnership property for the payment of partnership debts; and an original bill was filed for a partnership account, but before the appearance of the assignee as one of the defendants, he died; and a trustee having been appointed by the court in his place. Held, that such trustee was a necessary party, and that the proper way to make him such was by supplemental bill. Otherwise, if he had been the only party defendant.

A supplemental bill in such case, although it sets out at length the allegations contained in the original, is not for that cause demurrable.

New York Special Term, November 1852. Demurrer to Supplemental bill.

T. E. STEWART, for Defendant.

J. N. PLATT, for Plaintiff.

EDWARDS, Justice-It appears from the original bill that Johnson, with the assent of Snyder, made an assignment of a portion of the partnership property for the payment of the partnership debts. The original bill was filed for a partnership account, and the assignee was a necessary party, as there could not be a complete accounting unless it should be ascertained how far the assigned property had been applied in payment of debts. Upon the death of Schenck, the original assignee, and the appointment of a new trustee by this court, it became necessary that such new trustee should be made a party to the suit; and the proper way to make him such party was by a supplemental bill (King vs. Donelly, 5 Paige, 46; 3 P. Williams, 351); and the fact

Roberts agt. Morrison.

that Schenck had not appeared to the original bill, is no objection to this method of continuing the suit. If he had been the only party defendant, a new original bill would have been proper.

I do not think that it was necessary to set out at length, the allegations contained in the original bill; but it does not follow that for that reason the bill is demurrable. The supplemental bill does not call upon Snyder to make answer to any except the supplemental bill, and if there is any unnecessary prolixity he is not injured by it.

The demurrer is overruled, with leave to the defendant to answer in twenty days.

SUPREME COURT.

ROBERTS agt. Morrison impleaded with Groesbeck.

A motion for judgment on account of the frivolousness of the demurrer (§ 247), is the trial of an issue of law; and a determination upon it is a judgment. The prevailing party is therefore entitled to the costs taxable for a trial (some $23).

New York Special Term, January 1853. Costs upon affirmance of judgment upon Demurrer. Defendant Morrison demurred to plaintiff's complaint. Justice ROOSEVELT at special term, on the 6th of October 1852, decided against the demurrer. The order states "the plaintiff having moved for judgment on said demurrer as frivolous," "ordered, that the plaintiffs have judgment on the demurrer with costs, with leave," &c. From this decision there was an appeal to the general term.

The general term, on the 30th of December 1852, affirmed the judgment of the special term and in their order state, "it appearing to the court that the demurrer of the applicant was frivolous, and that the complaint of the respondent is sufficient, it is ordered that the said judgment on demurrer be affirmed with ten dollars costs of this appeal."

Upon this statement the counsel for the plaintiff claims, that the argument of the demurrer was the trial of an issue of law, and that the decision of the special term is a judgment in the

Roberts agt. Morrison.

case, and the costs given by the order mean taxable costs upon trial, amounting to some $23.

The counsel for defendant claims that the argument before the special term was only a motion for judgment on the demurrer as frivolous, and that the decision entitles the plaintiff to only ten dollars costs. In furtherance of this view he referred to the plaintiff's notice of argument which is as follows: "We shall apply to Justice ROOSEVELT at the New York chambers for judgment on the demurrer of the defendant Morrison as frivolous; which motion will be founded upon the complaint and said demurrer. We shall also ask for costs of the motion; or for such other or further relief as to the court may seem meet."

-, for Defendant.

-, for Plaintiff.

MORRIS, Justice.-The language of a notice can not characterize the action of the court. The action of the court must control, and not the impression of parties or counsel, of the character of such action.

Section 249 of the Code establishes " an issue of law arises upon a demurrer to the complaint, answer or reply, or to some part thereof." Section 252 of the Code declares, "a trial is the judicial examination of the issues between the parties, whether they be issues of law or fact." Section 253 of the Code directs 66 an issue of law must be tried by the court."

Section 245 of the Code prescribes, " a judgment is the final determination of the rights of the parties in the action."

Section 247 of the Code is as follows: "If a demurrer, answer or reply, be frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given thereon."

Therefore in this case, whether the demurrer was heard by Justice ROOSEVELT out of court, or presiding at special term, the hearing was the trial of an issue of law, and his determination upon it," is a judgment, a final determination of the rights of the parties in the action."

The plaintiff is entitled to costs of trial of an issue.