Fassett a. Tallmadge. lating the manner in which the police officers perform their duty; nor whether those whom they arrest were really guilty of a crime, and so amenable to the criminal laws. Were we to assume jurisdiction in this case, it would be our duty, on the issue here joined, to take testimony, if offered by the defendants, to show that the plaintiff was carrying on the business of a mock auctioneer, resorting to the tricks and devices of a Peter Funk, in order to defraud the unwary. Should the charges against the plaintiff prove true, the extraordinary powers of a court of equity will have been invoked to prevent the exercise of legal functions vested in the police to prevent the commission of crime, and the court will thus be made a party in aiding the nefarious traffic of a mock auctioneer. These are not the proper or customary functions of a court of equity. If the plaintiff can make a proper case, the criminal tribunals will promptly arrest and deal with the defendants. No injunction, to be granted by this court, can be more effectual in restraining the acts complained of than would be the arrest of the defendants. The grand jury of the county is open every month, and if the complaints of the plaintiff are just, the offenders will be quickly reached by indictment and punishment. The plaintiff is by no means remediless, even if the defendants are unable to respond in damages in a civil action. The injunction must be dissolved, with ten dollars costs of the motion to the defendants. FASSETT a. TALLMADGE. Supreme Court, Third District; General Term, Dec., 1862. CREDITOR'S ACTION.-EFFECT OF IMPRISONMENT OF DEBTOR.--- AFFIDAVIT OF An order which affects the substantial right of the party, and which, if permitted to stand, may entirely deprive him of a complete defence to the action, is appealable. Fassett a. Tallmadge. The defendant, in a creditor's action, moved, both for irregularity and as a matter of favor, to have a judgment taken by default upon his answer as sham, set aside, on affidavits showing that he was imprisoned by the creditor under an execution upon the original judgment at the time his default was taken, and that the plaintiff had secretly amended his complaint with regard to a co-defendant, so as to omit material allegations, and that his default was taken from a reliance upon a stay of proceedings in the cause. Held, that an appeal lay from an order denying this motion. The arrest and detention of a judgment-debtor, under an execution against his person upon the judgment, amounts to a satisfaction of the judgment for the time being. It is irregular for a plaintiff to amend his complaint as regards one defendant without notice to the other.* The lack of an affidavit of merits is not a conclusive objection to an application by defendant to excuse his default. He may supply the defect on terms. *In the case of HURLEY a. THE SECOND BUILDING ASSOCIATION (Supreme Court, First District, at Circuit, April, 1860), it was Held, that where an amended complaint was made for the purpose of adding new parties, the original defendants, on whom new summons had not been served, could not treat it as a new action, and object the pendency of the former action. It was, also, Held, that an amended complaint need not be so designated upon its face; and that the rule that a dilatory plea, to be good, must be common to all the defendants and pleaded by all, is applicable to answers under the Code. The action was brought by Bartholomew Hurley against the Second American Building Association. The defendants' demurrer, on the ground of a defect of parties, was sustained, with the usual leave to amend, in general terms. The plaintiff served an amended complaint, not, however, designating it as such (except in the verification), and also issued a new summons, naming the new parties, and had it served on them, but not on the original defendants, the Building Association. The defendants all appeared by the same attorney, and put in separate answers to the new complaint, the Building Association setting up the pendency of a former action for the same cause, against them alone. The cause coming on for trial: D. P. Barnard, for the defendants, objected that the proceedings were irregular William R. Stafford, for the plaintiff, insisted that dilatory pleas could not be put in by one defendant, but must be common to all; and that even if the proceedings were irregular, the defendants' remedy was by motion; and answering, was a waiver. LEONARD, J. (after reserving the cause for consideration).-There was no second action commenced. The Association have not been twice served with summons. An amended complaint need not be so designated on its face if there be an amendment in fact. The answer of the Association is not sustained by the evidence. The Association may amend their answer instanter, but the trial is not to be delayed. All dilatory pleas to be good, must be common to all the defendants and pleaded by all. (De Forest a. Jewett, 1 Hall, 137; Shannon a. Comstock, 21 Wend.. 457.) And the Code has not changed this rule. Fassett a. Tallmadge. Appeal from an order of the special term. In August, 1860, Elias Fassett recovered a judgment in this court against the appellant, Samuel W. Tallmadge, for the sum of $20,586.77. In December of the same year, Fassett commenced the present suit against the appellant and one Andrew Harder, in the nature of a creditor's bill, and sought to set aside a conveyance made by the appellant to Harder, on the ground of fraud. The complaint charged the appellant with fraud in selling certain real estate; and alleged that Harder fraudulently purchased and held the same. On January 30, 1861, before the service of summons and complaint on appellant, the respondent stipulated with Harder's attorney to strike out all allegations of fraud in the complaint against Harder, and then to take judgment against him. All this was done without notice to the appellant, and without his knowledge or consent, or that of his attorney. He never became aware of it until June, 1861 -six months after. The complaint thus amended was served on Harder's attorney, February 11, 1861. On the 21st of the same month the original complaint, unamended, was served with a summons on the appellant. Five days later, an order to show cause why action should not be stayed, with a stay of proceedings until the further order of the court, was granted the appellant, which order has never been vacated or modified. The appellant's attorney served an answer in this action on March 13, 1861. On the 26th of that month the appellant was arrested and imprisoned by the sheriff of the city and county of New York, on an execution issued against his person by the respondent's attorney, on the judgment of August, 1860, and has ever since been detained and imprisoned thereon.* Notice of motion was then given by the respondent's attorney to strike out the answer of the appellant as sham, and for judgment. This was disregarded by the appellant's attorney, under the belief that the stay of proceedings of February 25th was * That execution was, subsequent to the argument of this appeal, vacated and set aside, on the ground that it was illegally issued. See the opinion of the general term, reported in 14 Ante, 192. This appeal was argued in May, 1862, and not decided until December, 1862. Fassett a. Tallmadge. still in force. The respondent's attorney thereupon obtained an order by default, July 30, 1861, striking out the appellant's answer, and directing judgment for the respondent and the appointment of a receiver. On October 29, 1861, the respondent applied for a change or receiver, to which the appellant objected, but was overruled and the application was granted. (Fassett a. Tallmadge, 13 Ante, 12.) An order to show cause why the complaint should not be dismissed, and the whole proceedings should not be set aside, was then granted by Mr. Justice Hogeboom, which was vacated on the return-day with costs, by Mr. Justice Peckham, on the ground that it did not specify the irregularities complained of. The motion was renewed on notice, and, after argument, was denied with costs, and the defendant appealed. The defendant in his notice of motion asked that the judg ment be vacated or set aside; or, if need be, that the defendant might be allowed to file an answer; also, that the order substituting a receiver might be vacated and declared null and void, upon the grounds: First, that by amending the complaint under the stipulation, it was thereby rendered inoperative against either defendant, and contained no cause of action. Second, that the decree or judgment and all subsequent proceedings sought to be set aside, were had while Tallmadge was imprisoned; which was a satisfaction of the judgment and a bar to the action. Third, that the decree and subsequent proceedings were in violation of an order to stay proceedings, and therefore irregu lar, and a contempt of court. Fourth, that no copy of the amended complaint was served on the defendant, Tallmadge, or his attorney, as by statute required; and that such amendment was without his consent and irregular. Fifth, that it was irregular to move to strike out the answer after the complaint had been amended, and before defendant had an opportunity to put in an answer or demurrer. The respondent insisted that the order is not appealable. Elbridge T. Gerry, for the appellant. Fassett a. Tallmadge. BY THE COURT.-MILLER, J.-I think the order made at special term involves the merits of the action. It affects a substantial right of the party; and, if permitted to stand, may entirely deprive him of a complete defence to the action. It is clearly appealable. (Code, § 349; Cruger a. Douglas, 8 Barb., 81; Tracy a. N. Y. Steam Faucet Manufacturing Co., 1 E. D. Smith, 349.) It is claimed that the arrest and detention of the defendant Tallmadge, was a satisfaction of the judgment pro tempore, and that no further steps could be taken to enforce the original debt for the time being. In Stilwell a. Van Epps (1 Paige, 615), which was a bill filed by a judgment-creditor to reach equitable assets, it was held, that while the plaintiff has the body of the defendant in execution on ca. sa., his right to proceed against the property of the latter is suspended. Chancellor Walworth says: "The complainants having taken the body of their debtor into execution, could not proceed against his property at law, while he remained in custody." In that case, leave was asked to file a supplemental bill, setting forth that the plaintiff had been discharged from custody under the Non-imprisonment Act; which was denied upon the ground that all the interest of the debtor had been transferred to the assignee. In Jackson a. Benedict (13 Johns., 553), it was decided that the lien of a judgment was suspended during the imprisonment of the judgmentdebtor upon a ca. sa. In Cooper a. Bigelow (1 Cow., 56), it was held, that a ca. sa. executed is a satisfaction of the debt, except in certain cases provided for by statute. (See, also, Foster a. Jackson, Hobart, 52, 59; McGuinty a. Herrick, 5 Wend., 240; Wakeman a. Lyon, 9 Ib., 241; Hone a. Hone, Ambl. Ch., 79.) While it is unnecessary, finally, to determine that question upon this motion, yet I am inclined to think that the plaintiff had no right to proceed with the suit while the defendant was under arrest; and that, upon an application to the court for that purpose, the defendant would have been permitted, by supplemental answer, to set up the arrest as a bar to the action. Nor do I see any good reason why he should not now be allowed to avail himself of this defence, unless his neglect has precluded him. I am also of the opinion that the amendments of the plaintiff's complaint, striking out all the allegations of fraud, as to VOL. XV.-14 |