Claflin a. Frank.

CLAFLIN a. FRANK.

Supreme Court, First District; Special Term, April, 1859. ARREST.-FRAUDULENT REPRESENTATIONS ON PART OF AGENT.

Though a defendant would be civilly liable for the fraud of his agent, he is not liable to arrest therefor, without personal guilt on his part in respect to the commission of the fraud, or by ratification of the fraudulent act.

To warrant arrest of a defendant whose fraud is alleged as the ground for the order, the fraud must be clearly proved. If there is a serious doubt as to the fraud, an order of arrest is not allowable.

Motion to vacate an order of arrest.

The facts are stated in the opinion.

STRONG, J.-The order for the arrest of the defendant was granted on affidavit setting forth that, on or about the 10th of February, 1859, the defendant applied to the plaintiffs, in this city, to sell him goods; and to induce the plaintiffs to do so, made certain statements in regard to his pecuniary circumstances, by which the plaintiffs were influenced to sell to the defendant at that time, and within a few days thereafter, goods to the amount of $707.39; that the statements were false and fraudulent, and the defendant was thereby guilty of fraud in contracting the debt.

It now appears, by the affidavits for the motion, that the defendant left the city on the 2d of February, 1859, for New Orleans, and was absent until the 19th of March, and that the goods were purchased during his absence by the defendant's wife on the defendant's account.

Previous to the purchase of those goods, and on the 10th of January, 1859, the wife and son of the defendant called at the plaintiff's store and purchased a bill of goods in behalf of the defendant, which the wife paid for on the 9th and 17th of February thereafter. On the occasion of that purchase, some in

Claflin a. Frank.

quiries were made of the son as to the property of the defendant, but the son denies having made any such statements as are alleged to have been made by the defendant in the affidavits for the order.

The plaintiffs reply to these facts by affidavits of the same persons who made the affidavits to obtain the order, in substance that the representations were made by the defendant's son at the time of the purchase on the 10th of January, and explanations are given of the mistakes in the former affidavits, to wit: that one of the persons did not know the defendant, and understood the son to be the defendant; and that the other did not read the affidavits carefully. It is further set forth in one of the affidavits in reply, that shortly after the 10th of January, and while the defendant was making purchases of the plaintiffs, the witness saw the defendant in the store of the latter, and told him it was the rule in the plaintiffs' store to require representations from persons who applied to purchase goods as to their means, and then inquired of him in regard to his responsibility, when the defendant referred to what his son had said as to the defendant's means, and said it was true, and proceeded himself to make similar representations on the subject. These affidavits also state that the subsequent purchases were made on the faith of the representations of the son, and the reiteration and confirmation of them by the defendant.

What was said by the son on the 10th of January, if it were false and fraudulent, and the goods purchased thereafter were obtained on the faith of it, furnished no ground for the order in question, unless the statements were authorized or subsequently approved by the defendant. The defendant would be civilly liable for the fraud of his agent, but would not be subject to arrest by reason of it; there must be personal guilt of a party to a debt, in respect to fraud in contracting it, to make him liable in an action for the debt to arrest, within the spirit of section 179, subdivision 4 of the Code.

The order of arrest must then depend for support upon the affidavit of the aforesaid conversation with the defendant. The defendant swears that neither the plaintiffs, nor any one on their behalf, ever questioned him as to his circumstances, and that he never made any representations on the subject. The plaintiffs' witness to the conversation is corroborated by an affidavit that

Stevenson a Buxton.

about that time the witness claimed to have had such a conversation with the defendant.

To warrant an arrest of a defendant, whose fraud is alleged as a ground for the order, the fraud must be clearly proved. If there is a serious doubt as to the fraud, an order of arrest is not allowable.

In the present case, the force of the affidavit as to the conversation with the defendant, at his store after the 10th of Jannary, is materially impaired by the circumstance of the witness having previously sworn that the goods were sold on the faith of prior representations by the defendant at the plaintiffs' store, which is now conceded to be erroneous, and by his own admission of having sworn to his former affidavit without having read it carefully. When the case made by the original affidavits was fully disproved, this conversation was first resorted to to sustain the order. There is much in this to excite suspicion, and I think the affidavit, with the circumstances relied on in corroboration, is at least balanced by the denial referred to of the defendant.

In my opinion, therefore, the order of arrest should be vacated, and it is ordered accordingly, with $10 costs.

STEVENSON a. BUXTON.

Supreme Court, First District; Special Term, January, 1859.

JUDGMENT.-RELIEF IN DAMAGES IN AN ACTION FOR SPECIFIC PERFORMANCE.

In an action against the vendor for specific performance, where his defence is that he has no title to the premises agreed to be conveyed, the court may, under the Code, order a reference to ascertain the plaintiff's damages, and give judgment in the alternative for specific performance, or for the recovery of damages, instead of dismissing the complaint, and turning the plaintiff over to his action for damages.

Stevenson a. Buxton.

This was an action for specific performance of a contract of sale of real property.

The facts were, that on October 21, 1856, the defendant sold to the plaintiff the house and lot No. 152 West Thirty-secondstreet, for $5000; terms, $1000 cash, the balance by assuming a mortgage then on the premises for $3500; $100 of the. $1000 was paid by plaintiff at the time of signing the contract. The plaintiff, subsequently, tendered the $900 remaining due, and demanded a performance of the contract on the part of defendant. The defendant failed to convey, however, and the plaintiff brought this action to enforce specific performance. The defence was, that defendant had not title to the premises, and could not perform.

DAVIES, J.-When the distinction existed between legal and equitable proceedings, and these rights were enforced in differ ent tribunals, it would have been the usual course on a bill filed in equity, to compel a specific performance, and if it appeared that it was impossible for the defendant to comply, to dismiss the bill and leave the plaintiff to his action at law, to recover the damages which he might have sustained. It may be doubted whether such a procedure is necessary under our present system. The Code was intended to obviate such necessity, and to afford the plaintiff all the relief he might be entitled to, without reference to the particular form of the action.

In Wiswall a. McGown (2 Barb., 270), the bill was filed for a specific performance, and it appeared that the defendant had not the power to comply. The assistant vice-chancellor referred it to a master to ascertain the damages sustained by the plaintiff by reason of the refusal of the defendant to perform and fulfil his contract. It is true that that portion of the decree was reversed in this court, but it was under the old system, when legal and equitable relief were enforced in different tribunals, and it was upon the ground that a court of law was the only proper forum to enforce a claim for damages only. The distinction between legal and equitable remedies is now abolished, and I can see no necessity or propriety in dismissing this complaint, that the plaintiff may institute a new action to recover the damages which he has sustained. I cannot think such a procedure in

Hardenbrook's Case.

narmony with either the letter or spirit of the Code. All the rights of the parties can be determined in the present action, and no necessity now exists for resorting to another.

An order will be entered for a reference to ascertain the damages which the plaintiff has sustained by reason of the refusal of the defendant to comply with his contract; and on the coming in of his report, a judgment will be entered that he pay the costs of this action, and specifically perform his contract; and on his failure to do so, that the plaintiff have judgment against him for the amount so reported to be due, with the costs of this action.

HARDENBROOK'S CASE.

Supreme Court, First District; At Chambers, February, 1859.

ARREST.-WITNESS'S PRIVILEGE.

A witness whose attendance is voluntary, and not compelled by process, is not privileged from arrest while coming and going.

The witness attended on the trial, pursuant to subpoena, and was examined; on a subsequent day he attended at request of counsel.

Held, that his latter attendance was voluntary, and he was not privileged from arrest.

Habeas corpus to inquire into the detention of W. A. Hardenbrook, held in custody by the sheriff of the city and county of New York.

The prisoner had been arrested upon an attachment for nonpayment of alimony, required of him in an action of divorce, to which he was a party. He claimed privilege from arrest, on the ground that at the time of the arrest he was on his way to the trial of a cause before a referee, which he had been attending in the capacity of witness. He had originally attended, on a previous day, pursuant to a subpœna; but after having been examined and dismissed from the stand, he attended again on the day of his arrest, at the request of counsel, for the purpose of testifying further.