Mechanics' and Farmers' Bank agt. Rider and Wilbur, the defendants were served, and the contract being joint and not several also, the plaintiff would not have been entitled to judg ment against either of the defendants if the action had been commenced against one of the defendants alone. He can not, therefore, take judgment against one when they are sued together. If sued alone the defendant would have found a remedy provided for him by demurrer, under § 144, sub. 4, on the ground that there was a defect of parties defendant. This last provision was evidently designed for such a case. I think I need say no more in defence of the proposition that on the defence of usury in this case a judgment could not have been rendered in favor of one defendant and against the other. Suppose then, one of the defendants had been called to prove the usury; his evidence could not be received in his own behalf (Code, § 397), and as to the other defendant alone there was no separate issue-nothing to try. In as much as no judgment could be given in favor of the other defendant alone, the evidence would not bear upon the case, and could have no legal effect. If one defendant had been permitted to testify and had proved the usury, and the trial had stopped there, what judgment could have been given? Not in favor of both defendants for the statute precludes the witness having any benefit of his own testimony. Not in favor of one defendant, for that can not be on a joint contract. The judgment would, after all, have been given for the plaintiff, and therefore, it will be perceived, the evidence of the witness would have been entirely immaterial and irrelevant. A joint note given at one transaction, and signed by two-defendants, can not be usurious as to one and not usurious as to the other defendant. If the mode of the defence attempted on the trial can succeed, two persons entering into a joint contract with one person, will have greatly the advantage in litigating concerning it. The two persons can be sworn, each for the other, but the other party to the contract and the action can not be permitted to testify. The construction I have given to the section in question, har Gridley agt. McCumber. monizes entirely with the other provisions of the act and gives Justice WRIGHT did not hear the argument, and was not present w. 414-FOLLOWED, 6 How. 241. Contra, 5 5 Id. 315, 316. SUPREME COURT. GRIDLEY agt. MCCUMBER. The nature and office of an execution is not changed by the Code; as formerly, If the judgment does not show that the action is wholly in tort, a ca. sa, can Jefferson Special Term, January 1851. This action was com- At the commencement of the suit the plaintiff procured an order to arrest the defendant under section 179, sub. 4 of the Code, upon affidavits setting forth that the defendant fraudulently contracted the debt, or incurred the obligation for which the suit was brought. The defendant was arrested, and without moving to vacate the order, gave bail and was discharged under section 186. The cause was tried before referees, who reported generally that the defendant was indebted to the plaintiff in a certain sun. An execution against the property of the defendant was issued Gridley agt. McCumber. and returned unsatisfied, and thereupon a ca. sa. was issued, and the defendant arrested. This motion is now made to set aside the ca. sa., as not warranted by the judgment. MANN & EDMONDS, for Defendant. CLARKE & COLVIN, for Plaintiffs. HUBBARD, Justice.-The ca. sa. is sought to be sustained on two grounds. 1. That it is authorized by the judgment; and 2. That aside from the judgment it can be upheld by the order of arrest. The first point is manifestly untenable. The principle of the execution in this case is, that the debt was fraudulently contracted or incurred. There is no such distinct averment or issue presented in the complaint. It is true that some of the partnership effects, which form a portion of the plaintiff's claim, are alleged to have been fraudulently contracted; but it is to be observed that the action is not trover but assumpsit; and besides, this averment of fraud, has relation only to a part of the indebtedness sought to be recovered. The judgment does not, therefore, authorize the ca. sa. The important question to consider on this motion is, whether a personal execution can be based upon an order of arrest, dehors the judgment in the action. Before the Code of Procedure the object and office of the execution was well understood; it issued to carry into effect the judgment (1 Bur. Pr. 288). It must strictly pursue the judgment and be warranted by it otherwise it might be set aside on motion. The Code. which now embraces the whole law as to the form and cases in which an execution may issue, has not changed the nature and office of this writ. This is obvious by reference to sections 283, 286 and 289. These sections speak of the enforcement of judgments, or the provision of the execution. The whole object of the process is to enforce the sentence of the court or the law in the action, as appears on the judgment. The order of arrest, it seems to me, takes the place of the order to hold to bail under the former system. Its office is to seize the defendant and hold him in custody as auxiliary to an anticipated Gridley agt. McCumber. ca. sa. upon the judgment. That this is the intent of the Code, will appear from section 187, which prescribes the mode of release from imprisonment under the order. An undertaking is to be executed, conditioned that the defendant shall at all times render himself amenable to the process of the court during the pendency of the action, and to such as may be issued to enforce the judgment therein. The vitality of the order is exhausted with the arrest and discharge, and the plaintiff must look to the undertaking for all further advantages resulting from the order. It seems to me, clearly, that the order can not thereafter, nor under any circumstances be made the ground work of a capias ad satisfaciendum. The legislature, I think, could not have intended so great a change in the office and theory of the process of execution. The Code, in my judgment, does not materially change the law as it previously existed on the subject of executions, except that it prescribes a formula for the writ: the different kinds and primary object remain as heretofore. I have been referred to a decision of Justice JONES, in 2d Code Reporter, page 1, to the effect that an order of arrest may be made upon affidavit irrespective of the case made in the complaint. That decision does not contravene the views I have expressed; the question of ca. sa. was not involved in that case, and hence it is not an authority in point on this motion. But with deference to the opinion of the learned justice, I may be permitted to inquire as to the utility of retaining an order of arrest, obtained upon a case made aside from the complaint, when it is obvious, that as no ca. sa. can issue on the judgment, no advantage whatever can be realized, because there can be no breach of the undertaking. In such a case, the only effect of the order, it seems to me, would be to oppress the defendant, without benefit to the plaintiff, except such as might possibly flow from coercion. which is not favored in legal proceedings. It is not necessary that I should decide upon this motion, whether the complaint must set forth a case authorizing an arrest under section 179. I will remark, however, that it appears to Dexter agt. Gardner and others. me that it should, otherwise the judgment could not warrant a ca. sa.; and in no other way can it be seen, that under section 288, which alone authorizes a personal execution, that the "action is one on which the defendant might have been arrested as provided in sections 179 and 181." It may be that in this view of the Code, issues might be formed of difficult trial, but that was a subject for the law-makers and not the courts to consider. The motion must be granted, but without costs, as the questions presented are not settled under the Code. SUPREME.COURT. DEXTER, President of the Bank of Whitestown, agt. GARDNER and others. The free school law (Session Laws 1849, page 534, § 16), repeals section 132 of the 5th article, chapter 480 of the act of 1847, which contains the powers of the State Superintendent to hear and decide appeals in certain matters therein stated. This 5th article in the act of 1847 is. by the 7th section of that act made a substitute for the corresponding article in the Revised Statutes. containing the same powers as to appeals (Art. 5, tit. 2, ch. 15, part 1. § 124, 1st vol. page 487). Consequently the repeal of the 132d section of article 5 in the act of 1847, divests the state superintendent of all power of hearing and deciding upon the appeals therein given. Therefore, in any suit brought against town superintendents, or officers of school districts, under the act of 1847, and as prescribed by section 146 of that act (Session Laws of 1847, page 714), the plaintiff, on recovery, is entitled to That section requiring that the subject matter of the action " have been the subject of appeal to the superintendent"; and not allowing costs against such officers if the court certified that it appeared on the trial that they acted in good faith. costs. might An extra allowance for costs under 308 of the Code, denied, where the trial occupied but two or three hours, and nothing peculiar in the character of the cause, although the questions were somewhat complicated. (The reasoning in the case of Howard agt. The Rome and Turin Plank Road Co. 4 How. Pr. R. 416, adhered to). Oneida Special Term, April 1851. This suit was tried at the late Oneida circuit, and resulted in a verdict for the plaintiff. It was brought against the defendants, who were trustees of a school district in Whitestown, to recover the amount of a school house tax of $1069.09, imposed on the Bank of Whitestown, and collected 53 |