Willett agt. Stringer and others. J., said: "It was discretionary with the court to grant or refuse such an application. If justice requires a new trial, they will grant it; if not, they will refuse it." (See also The King agt. Hunt, 4 Barn. & Ald. 430.) In this case, it is not shown, or even pretended, that the defendants have, in any way, been prejudiced or injured by the omission of the clerk to swear the juror. Such an omission, unaccompanied by injury or prejudice, is not a ground for setting aside the verdict. The motion must be denied, but I am not inclined to charge the costs of the motion upon the defendants. SUPERIOR COURT. CHARLES S. WILLETT agt. JAMES STRINGER and others. When upon an appeal an undertaking has been given fully complying with the statute, and the appeal is perfected, the appellant does not remain responsible for the consequences of misfortune and insolvency of his sureties. But there is a substantial distinction between the case of an injunction, and that of an appeal. In case of injunction, if the protection, by the security substituted, should become entirely lost, as by insolvency of all the obligors, the right to the injunction would be restored; and if it is partially diminished, the question remains open, as it was originally, what will afford the party reasonable indemnity. It is a question of judicial discretion, whether to allow a bond given on a claim of personal property, or for an injunction, to remain, where one surety has become insolvent, and the remaining surety solvent, or direct that fresh security be given. At Chambers, October 1, 1857. MOTION that a surety be added to the undertaking given in this cause, or a new undertaking be given to the plaintiff, with additional surety. L. S. CHATFIELD, for plaintiff. Willett agt. Stringer and others. HOFFMAN, Justice. The plaintiff claimed upon a chattel mortgage for about $6,000. The defendants Stringer & Townsend are in possession of the mortgaged property, (printing presses, &c.) One other defendant claiming upon a mortgage of a previous date for $2,000, and another mortgage of a subsequent date is mentioned as in existence for $6,000, and that steps have been taken upon it, but the mortgagee is not a party to this action. The whole value of the property is $10,000. On the 3d of April, 1857, an order was made that the defendants Stringer & Townsend execute to the plaintiff, a bond, with two sureties to be approved by one of the justices of the court, in a certain penalty, conditioned that they would pay to the plaintiff such sum as should be adjudged due upon the mortgage to the plaintiff, out of the said sum of $10,000, the value of the property, and after deducting all prior liens, which might be established, with interest; that upon the execution and delivery of such undertaking, the injunction order should be discharged; but in default thereof, it should be continued as originally granted. The said defendants were, however, enjoined from assigning, selling or incumbering, or parting with the property. The bond was duly executed and approved. It now appears that one of the sureties has become insolvent, which is the ground of the present application. In the case of Bettshoven agt. Wheaton, special term, December, 1854, I held, with the concurrence of three justices, that when upon an appeal an undertaking had been given fully complying with the statute, and the appeal was perfected, the appellant did not remain responsible for the consequences of misfortune and insolvency of his sureties. But it was noticed as of considerable weight, that appeals, both under the civil law, and in the court of chancery, were at first matters of absolute right. The restrictions as to security, &c., have been made by statute or rule. The case of Bridges agt. Camfield, (2 Edw. Rep. 208,) was referred to, in which Vice-Chancellor McCOUN held, that Willett agt. Stringer and others. where security for costs had been given, and a surety became insolvent, the party might be compelled to add a new one. In the case of The Hartford Quarry Co. agt. Pendleton, (4 Abbott's Rep. 460,) Justice INGRAHAM decided that even in such a case, a new security would not be required. It is obvious that there is a substantial distinction between the case of an injunction, and that of an appeal. In the former, the court, as in this instance, finds the party apparently entitled to the remedy, but in its discretion, substitutes the security as sufficiently protecting the party; and because of the great inconveniences resulting from breaking up the business of the other party, when, perhaps, it may result that the injunction ought not to have been allowed. If the protection by the security thus substituted, should become entirely lost, as by insolvency of all the obligors, certainly the right to the injunction would be restored. And if it is par tially diminished, the question remains open, as it was originally, what will afford the party reasonable indemnity? If the court think that the bond without the present insolvent surety would have sufficed, it may treat it as now sufficient, the chance remaining of his future solvency. If otherwise, fresh security may be exacted. Other circumstances may influence the determination. It becomes thus a question of judicial discretion in each instance. It is shown by the opposing affidavits that one of the sureties given by the plaintiff on obtaining the injunction, is insolvent. I should, in no event, grant the present application without extending a similar rule to this bond. Upon all the facts stated, I do not deem it necessary to make any orders. Lent agt. McQueen and others. SUPREME COURT. JOHN LENT agt. JOHN MCQUEEN and others. Where the plaintiff shows a judgment perfected, and an execution issued thereon, and return unsatisfied in due form of law, it is a matter of course, on his application, to reach the equitable property of the defendant, to appoint a receiver. And a plaintiff should always make such an application when he has obtained an injunction against the judgment debtor, to protect the property and effec tuate his lien. On such an application, the court cannot go behind the judgment and execution, to consider the merits of the judgment, in any respect. Monroe General Term, December, 1857. Present, JOHNSON, WELLES and SMITH, Justices. APPEAL from an order made by Justice GREENE, at the Genesee circuit, directing a reference for the appointment of a receiver. The action was a creditor's suit upon the return of an execution unsatisfied. The defendant resisted the appointment of the receiver, on the ground that the judgment was confessed to secure a contingent liability by indorsing upon a bill of exchange which had not yet matured, and that therefore, nothing was yet due to the plaintiff. JAMES WOOD, JR., for appellant. By the court-E. DARWIN SMITH, Justice. Upon the return of an execution against the property of a defendant, on any judgment at law, or upon a decree in equity, the plaintiff has the right to institute a suit to reach the equitable property of the defendant. This is the creditor's bill of the late court of chancery, and is a proceeding in equity in this court, and is to be governed by the same rules and principles which formerly were applied to such suits when the courts of law and equity were distinct. Hecker and others agt. De Groot and others. If the plaintiff shows a judgment perfected, and an exe cution issued thereon, and return unsatisfied in due form of law, it is a matter of course to appoint a receiver in such cases. And a plaintiff should always make such an application when he has obtained an injunction against the judgment debtor, to protect the property and effectuate his lien. On such an application, the court cannot go behind the judg ment and execution. This was so held expressly in Sandford agt. Sinclair, (8 Paige, 373;) S. C., (3 Edwards, 393 ;) Hine agt. Woolsey, (289.) Chancellor WALWORTH, in the case of Sandford agt. Sinclair, says: "If the plaintiff proceeded irregularly in issuing execution in the supreme court or in procuring its return, the defendant should have applied to that court to set aside the execution or the return for irregularity. All that is proper for this court to do, is to stay the suit here until such application can be made to the court of law." Whether the plaintiff was entitled to issue the execution in this case, before his liability became fixed by the protest of the bill of exchange for its non-payment by the acceptor, or before it had in fact been paid by the plaintiff, were questions which can only be raised by motion at special term. The application for the appointment of receiver could not be resisted by any objections of this kind. The order at special term was clearly right, and should be affirmed, with $10 costs. SUPREME COURT. JOHN HECKER and others agt. WILLIAM H. DE GROOT and others. Where the defendants are sued for damages occasioned by a fraud committed by them, on demurrer to the complaint, which admits they were instrumental in perpetrating the acts constituting the fraud, they cannot escape liability by showing that they acted as agents. |