Page images

Held, That the demurrer was not good; that said act of 1869 is permissive not compulsory. The supposed moral coercion upon a person accused of crime to offer himself as a witness by reason of the adverse inference which might be drawn from his omission to testify when presumedly all the facts are known to him is not compulsion exe: cised through the process of the Courts or through laws acting directly upon the party and has no reference to an indirect and argumentative pressure such as is claimed is exerted by the act of 1869. The policy or propriety of a law is a legislative and not a judicial question.

The prisoner's counsel moved that the court direct an acquittal on the ground that the matters on which the perjury was assigned were immaterial.

Held, That although the false testimony did not bear directly upon the main issue in the trial for forgery, but only upon the credit of the witness, who gave material evidence on the merits on that trial, it was relevant as going to the credit of a witness who has given material evidence, because it helps the jury to determine the main issue. 9 Cox C. C., 501; 3 C. & K., 26; Arch. Cr. Pr., 817. False swearing is perjury whenever the testimony is relevant to the case, although it may not directly bear upon the issue to be found.

[blocks in formation]

TEMPT. DISTRINGAS. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. William H. Hillis, respt., v. The Peekskill Savings Bank, impld., applt.

Decided Oct., 1883.

Where a corporation refuses to obey a decrce or judgment obtained against it the court has power to authorize a writ of distringas to bring the corporation before it to answer the contempt alleged to have been committed. To authorize the issuing of such writ it is not necessary to prove conclusively that the corporation has been guilty of contempt.

Appeal from order authorizing a writ of distringas to compel the bank to appear and answer for an alleged contempt.

The judgment in this action directed the bank, within thirty days after the service of copy of judgment, to deliver up certain town bonds to be cancelled. This the bank failed to do and also declined to surrender said bonds on demand, whereupon the order in question was made, authorizing the writ to issue unless, the bank procured a stay of proceedings pending appeal from judgment. It was claimed in opposition to the application for the writ that the judgment was wrong and that the bank had parted with the bonds pending the action.

L. W. Thayer and I. S. Johnson, for applt.

W. F. Cogswell, for respt. Held, That the Special Term did not exceed its power or discretion in regard to the applica

Judgment of General Term, affirming judgment of conviction, affirmed. Opinion by Andrews, J. All tion. Whether defendant has


been guilty of the alleged con

tempt need not be conclusively determined when an application is made for a writ of distringas. When a decree or judgment is pronounced against a corporation which it refuses to obey the party who avers that the corporation is in contempt may have the writ of distringas to bring it before the court, and after that, if no satisfactory answer is given to the alleged contempt, the court may order a sequestration to enforce the performance of the decree or order of the court. 1 Barb. Ch. Pr., 443.

Section 14 of the Code defines what contempts may be punished civilly and enumerates cases in which the remedy applies. In the 8th subd. it declares that such power exists, in any other case when an attachment or any other proceeding to punish for contempt has been usually adopted and practiced in a court of record to enforce a civil remedy of a party to an action or to protect the rights of a party." When the contumacious party is brought before the court the practice in certain cases is prescribed by title 3, Chap. 17, of the Code.


Order affirmed.


Opinion by Hardin, J.; Smith, P. J., and Barker, J., concur.



In the absence of any allegation in the complaint that plaintiff is a non-resident of the State and therefore disqualified to sue a foreign corporation by reason of § 1780 of the Code, such non-residency will not be assumed in support of a demurrer on the ground of want of plaintiff's capacity to


To give a stockholder a standing to maintain an action to recover money improperly paid by the corporation of which he is a stockholder, he must show a request made to the corporation to sue and a refusal. The statement of a request and neglect to sue, without specifying the length of time such neglect continued, is insufficient. There must be a direct refusal, or at least facts from which the court can legally infer a refusal. There must be a clear default or breach of duty on the part of the corporation.

Appeal from interlocutory judg ment overruling demurrer to the complaint.

This action is brought by a stockholder of the Old Dominion. Steamship Co. of Delaware, on behalf of himself and others similarly situated, to recover back moneys paid under a contract, Ex. A, and also to recover back moneys paid under a contract, Ex. B, and to restrain the payment of any further sum under Ex. B. The complaint showed that by Ex. B, entered into Jan. 21, 1874, the Lorillard SS. Co. and J. Lorillard, its president, agreed among other things to discontinue the business of running steamboats between New York and Norfolk, and other Southern ports, on payment by the Old Dominion Steam

N. Y. SUPREME COURT. GENERAL ship Co.,of New York, of a certain

TERM. FIRST DEPT. John A. Leslie, respt., v. Jacob Lorillard et al., applts. Decided Dec. 21, 1883.

sum each month. The contract was entered into between the Lorillard Co. and Lorillard, its president, and the Old Dominion Steamship Co. of N. Y. Subse


quently the Old Dominion Steamship Co. of Delaware was established, which succeeded to the rights, business, and assumed the liabilities of the Old Dominion Steamship Co. of New Plaintiff is a stockholder only in the Delaware corporation. By the agreement, Ex. B, of Oct. 29, 1878, Ex. A was rescinded and a new agreement entered into whereby the Old Dominion Steamship Co. of Delaware agrees to pay the Lorillard Steamship Co. certain large sums of money so long as it should discontinue business between New York and Norfolk and other Southern ports and no opposition line to the Delaware corporation existed. This suit seeks to annul Ex. B and recover back moneys paid under it and also to recover back moneys paid by the Old Dominion Steamship Co. of New York under Ex. A, of which plaintiff was never a stockholder. Plaintiff brings this suit by virtue of his being a stockholder in the Delaware corporation. Defendants demurred on the ground of want of plaintiff's capacity to sue; also on the ground of misjoinder of causes of action; also on the ground that the complaint does not state the cause of action. Other facts sufficiently appear below.

Asa Bird Gardiner, for applts. Thomas S. Moore, for respt. Held, That in the absence of any allegation of plaintiff's nonresidency it will not be assumed in support of the demurrer that he is a non-resident, and for that reason lacks capacity to sue on

Vol. 18.-No. 13.

account of the provision of § 1780 of the Code. It should be shown on the face of the complaint that plaintiff is a non-resident. The first ground of demurrer is invalid.

With respect to the second ground of demurrer, to wit. the misjoinder of causes of action, we think it is well taken. Plaintiff asserts no right except as a stockholder of the Delaware corporation.

Contract A was made between the Lorillard Co., Lorillard, its president, and the Old Dominion Steamship Co. of New York. Under the contract considerable sums of money are alleged to have been paid by the Old Dominion Steamship Co. of New York to the defendant Lorillard from time to time as required by its terms. The cause of action that arose, if any, on that contract, and because of those payments, was in favor of the Old Dominion Steamship Co. of New York, or its stockholders, and not the Old Dominion Steamship Co. of Delaware, or any of its stockholders. There is no allegation that the Delaware corporation paid any moneys required to be paid by contract A. It is true there is an allegation that the company, after its organization, succeeded to and entered upon the same business of transportation which had been theretofore conducted by the Old Dominion Steamship Co. of New York, and became vested with the property and subject to the liability of the contracts of said last named company. But that is by no means equivalent to showing that the Del

aware Co. made any payments or did any acts which either they or plaintiff as stockholder of the company is entitled to have declared void in this action. By the complaint it appears that the Delaware corporation repudiated Ex. A and denied any liability under it. Exhibit B seems to be an independent obligation. The alleged cause of action arising out of the transactions of the parties to Ex. A is improperly united in this action with the cause of action under Exhibit B, because the two alleged causes of action are not so connected that plaintiff can enforce both by this action, unless it can be answered that the failure of plaintiff to allege any cause of action in him arising under agreement A of the complaint has only the effect to show that the complaint contains but a single cause of action, to wit: that which arises under Ex. B. At all events it is clear that if plaintiff expects to establish any cause of action arising under the agreement A he must so far amend his complaint as to show that the corporation of which he is a stockholder recognized and performed that agreement by the payment of moneys in which it and he had some interest.

With respect to the ground of demurrer that the complaint does not state facts sufficient to constitute a cause of action, we think that is well taken. To give a stockholder the right to bring an action he must aver that the corporation has refused to bring the action. The allegation that the

defendant has neglected to bring such action is not equivalent to an allegation that the defendant has refused to do so. It is not stated how long such neglect continued, and there is nothing from which the court can lawfully infer that such neglect is equivalent to a refusal. 18 How., U. S., 231; 69 N. Y., 71.

Judgment reversed, and judgment ordered for defendants on demurrer, with leave to plaintiff to amend on the usual terms.

Opinion by Davis, P. J.; Daniels, J., concurs.



Stephen Tunstall, respt., v. Walter W. Winton, applt.

Decided Dec. 21, 1883.

When the plaintiff deposits $250 with the clerk of the court in lieu of an undertaking on an order of arrest and the order of arrest granted in the action is finally vacated by a decision of the Court of Appeals, the defendant is immediately entitled to an order requiring the clerk to pay over to him the costs awarded him on the vacation of the order of arrest, and cannot be obliged to wait until the termination of the action in order that such costs may be set off against possible costs recovered by the plaintiff in the final judgment.

Appeal from an order denying a motion made by defendant for the payment of certain costs out of a deposit made by plaintiff in lieu of an undertaking on obtaining an order of arrest.

The order of arrest in this action was finally vacated by the Court

of Appeals. Thereupon defendant | be delayed until the action should moved that the clerk of the court be tried and determined. This was be ordered to pay his costs out of an incidental portion of the conthe sum deposited with him as troversy not dependent upon the above stated. This motion was issues which might be finally deopposed by plaintiff on the ground cided in plaintiff's favor, and, as that the case was approaching the decision carried with it the trial; that defendant was insolvent, costs incurred in vacating an unand that plaintiff seemed likely to authorized order of arrest, defendrecover a verdict and therefore ant was entitled to their immediate the discretion of the court was in- payment out of this deposit. voked to delay the decision of the motion until after the trial and verdict with a view of setting off the costs claimed by defendant against plaintiff's probable recovery.

The motion was denied and defendant appealed.

Benjamin F. Sawyer, for applt. Edward P. Wilder, for respt. Held, That the deposit made by plaintiff was liable to, and affected by, the same contingencies as the undertaking provided for would have been if that had been given, and by such an undertaking the parties subscribing it would become liable to defendant for the payment of such costs either in the event of judgment being recovered in his favor, or if it should finally be decided that plaintiff was not entitled to the order of arrest. The latter contingency had been determined in defendant's favor, and thereupon plaintiff had become liable to pay to defendant the costs the latter had sustained by reason of the arrest, and the deposit was specially charged with making that pay


That plaintiff had no right to claim that such payment should

Order reversed and motion granted.

Opinion by Daniels, J.; Davis, P. J., and Brady, J., concur.


[merged small][merged small][ocr errors][merged small]
« PreviousContinue »