Jack v. Cashin sion and detention of said premises, by said defendant, he the said plaintiff, has sustained damages to the amount of $600." The defendant appeared in the action, but failing to answer or demur to the complaint, a copy of which had been served with the summons, application for the relief demanded was made to the court, of which application the defendant had due notice. A reference was ordered to take the requisite proofs of the matters alleged in the complaint; and on the coming in of the referee's report, in accordance with the proofs taken, judgment was given September 26, 1867, awarding possession of the premises in controversy to the plaintiff, Beardslee, adjudging that he recover of the defendant $600 damages for wrongful withholding possession of the property. On January 27, 1877, a transcript of this judgment was docketed in New York county, and an execution issued thereon to the sheriff of said county on February 15, 1877, under which the premises now in question, were levied on and sold on May 4, 1877, to one John H. Morgan for $500. Morgan received the usual certificate of sale, which was regularly filed, and afterwards executed, and filed in the clerk's office, a written assignment or transfer of all his interest as purchaser to the present plaintiff, to whom, after the lapse of the statutory period, a deed was duly executed for the premises sold, which the defendant still continues to occupy notwithstanding plaintiff has demanded possession thereof. I do not understand any question to be made as to the regularity of the proceedings after Beardslee's judgment, provided the judgment itself be valid. Its validity is attacked, however, on the ground that the court had no power, in addition to awarding Beardslee possession of the premises, to give him a money judgment, in the same action for damages in the nature of "mesne profits." There is no doubt, that under the common law, such damages could be recovered only by Jack v. Cashin. a separate action of trespass for mesne profits (1 Chitty on Pleading, 222). But in this State, long before the adoption of the code, it was enacted that "instead of the action for mesne profits heretofore used, the plaintiff seeking to recover such damages, shall within one year after the docketing of the judgment, make and file a suggestion of such claim, which shall be entered, with the proceedings thereon, upon the record of such judgment, or be attached thereto, as a continuation of the same (3 Banks & Bros. R. S. 6th ed. p. 577, § 40). And since the adoption of the code in 1848, which had for one of its objects the prevention of a multiplicity of suits, it has repeatedly been held that a claim to recover possession of real property, and a claim of damages for withholding possession of the same, may be combined in one action. This indeed is directly authorized by section 167 of the late Code of Procedure (in force when the Beardslee judgment was rendered), which, enumerating the causes of action which may be united, expressly mentions 'claims to recover real property, with or without damages for the withholding thereof." "At common law," says Judge BOCKES, speaking for the court of appeals, in Vandervoort v. Gould (3 Trans. App., 57, 64), "the remedy for such damages was by separate action of trespass for mesne profits. But under the revised statutes, the mesne profits were recoverable upon suggestion on the foot of the record of the judgment in ejectment; and this judgment laid the foundation for subsequent proceedings to recover the mesne profits or damages. Now, however, under the Code of Procedure, the plaintiff may unite in the same complaint a claim to recover real property with damages for the withholding thereof (Livingston v. Tanner, 12 Barb. 481; Holmes v. Davis, v. Davis, 21 Id. 265; S. C., court of appeals, 19 N. Y. 488; Tompkins v. White, 8 How. Pr. 520; People v. Mayor, &c., 17 How. Pr. 57, 64). Ac Jack v. Cashin. cording to these authorities it is optional with the plaintiff to unite the claims in one action, or to have a separate action, after the recovery in ejectment for the damages. It is certainly clear that he may unite the two claims. The code is explicit to that effect (section 167), and the change effected by this provision was commendable with a view to avoid a multiplicity of suits." This case, and the authorities which it cites, clearly settle the question now before me. In Beardslee's action against the defendant, the damages recovered were distinctly demanded in the complaint-at least they were sufficiently alleged to apprise the defendant of their nature, and if the allegation was not definite enough, there was an easy mode of having it rendered So. No mere irregularity in the judgment, if any such exists, of which I see no evidence, can be inquired into on these proceedings. Even if it contained errors grave enough to justify its reversal by the proper appellate court (See Larned v. Hudson, 57 N. Y. 151),* still it must be accepted as conclusive here, unless it be absolutely void for want of jurisdiction—a conclusion to which it would be difficult to come, in the face of the statutes and authorities. As there is no doubt of the regularity of all the proceedings subsequent to Beardslee's judgment, or of that of the deed under which the plaintiff claims, and as it is conceded that the defendant is holding over and continuing in possession of the premises in question, after their sale by virtue of an execution against him, within the meaning of the act of 1874, a warrant must be granted for his dispossession. * The commission of appeals, in Larned v. Hudson (57 N. Y. 151), held that a claim for damages for withholding possession of real estate, does not include the rents and profits thereof, during the time the possession has been wrongfully withheld, and that it is a separate and distinct cause of action. Sparks v. Andrews. New York Marine Court. Special Term-November, 1878. WILLIAM SPARKS against HORACE ANDREWS. It is the doing or having done some one or all of the acts which the debtor is required by statute to swear he has not done, which alone constitutes his proceedings "not fair and just," within the statutory meaning of those terms. Fraudulently contracting the debt on which the judgment in the action was recovered is not ground upon which the debtor's discharge can be refused. Application for defendant's discharge as an imprisoned debtor under the "fourteen days act.” MCADAM, J.-This is an application under what is known as the "fourteen days act," for the discharge of a judgment debtor imprisioned on an execution against his person. The defendant was arrested before judgment on an allegation that he had fraudulently contracted the debt sued on, by means of certain false representations made by him and relied upon by the plaintiff. A motion was made to vacate the order, which was denied by the court on the merits, and this, it is claimed, amounts to an adjudication that the de The court disposed of the case upon the authority of Livingston v. Tanner (12 Barb. 481), and Judge LOTT, the chief commissioner, in delivering the opinion of the commission of appeals (on p. 154), says: “I am not aware that this decision has ever been questioned." The case of Vandervoort v. Gould (3 Trans. App. 57, 64), decided by the court of appeals, was not called to the attention of the commission of appeals when that tribunal decided Larned v. Hudson, supra, nor is it even referred to in its opinion. The cases are seemingly in conflict. If mesne profits are not the damages contemplated by section 167 of the late Code, what are ? Sparks v. Andrews. fendant is guilty of the fraud alleged as the ground of his arrest, and that fact being established, it is contended that he cannot be discharged in this proceeding. The statute (3 R. S. 6th Ed. p. 26, § 8) provides, that, at the final hearing, "unless the opposing creditor shall then be able to satisfy the court that the proceedings on the part of the prisoner are not just and fair, the court shall order an assignment and grant a discharge as hereinafter directed." The only question here presented is, whether the fact that the debt due the judgment creditor was contracted through the defendant's fraudulent representations establishes that the proceedings on his part are "not just and fair" within the meaning of the law. The matters in reference to which the debtor's proceedings must be just and fair, are, I think, determined by the oath with which he is required to accompany his application, which must be in the following form: "I, the within named petitioner, do swear that the within petition and account of my estate, and of the charges thereon, are in all respects just and true; that I have not, at any time or in any manner, disposed of or made over any part of my property with a view to the future benefit of myself or my family, or with an intent to injure or defraud any of my creditors" (3 R. S. 6th Ed. p. 26, § 5). In my judgment it is the doing, or having done, some one or all of the acts which the debtor is thus required to swear he has not done, which alone can constitute his proceedings "not just and fair" within the meaning of the statute (Matter of Brady, 8 Hun, 437; and see same case in court of appeals, 69 N. Y. 215). If there be other acts than those recited in the oath which were to deprive the debtor of the right to be discharged, is it not singular that the legislature should have required him to negative, on oath, some, and not all of the grounds which might defeat his application? |