Eddy a. Beach.

Motion to strike out parts of complaint as irrelevant.

The action was for false imprisonment of the plaintiff by Sophia Beach, at the instigation of her counsel, Lewis Beach, the other defendant.

The complaint alleged that the plaintiff was heretofore in partnership with Lewis Beach (father of the defendant Lewis Beach, and husband of the defendant Sophia Beach)-the death of Lewis Beach-the taking out of letters testamentary by Sophia Beach-the commencement of an action by Sophia Beach for an accounting against the plaintiff and another, surviving partners of Lewis Beach-the particular nature of that action. The complaint then goes on to state, that on the 17th day of March, 1858, Sophia Beach made an affidavit in the said action, by and through the instigation of Lewis Beach. The substance of this affidavit is fully set out-that this affidavit was presented to the Supreme Court, and thereupon a writ was granted, ordering the arrest of the plaintiff. The complaint gives the contents of this writ, which was a ne exeat, holding the plaintiff to bail in the sum of $120,000: that the plaintiff was arrested on this writ, and kept in close custody until the 1st day of April, 1858, when the same was vacated by order of the Supreme Court, and the plaintiff released from custody. The complaint then denies specifically the allegations in the affidavit upon which the writ was founded, and concludes with a prayer for $50,000 damages.

The defendants moved to strike out all of the matter in the complaint, except the allegation of the arrest of the plaintiff, and his subsequent discharge.

Lewis Beach, for the motion.-I. There is not an averment in the first five pages of the complaint, which are given to setting out the particular instrumentality by which the plaintiff was deprived of his liberty, which has any bearing on the subject of the controversy. (1 Code R., N. S., 121.) There is not an averment which can be made the subject of a material issue. (6 How. Pr. R., 68; 4 Ib., 119.)

II. The allegations do not go to constitute a cause of action. (1 Code R., 102; 5 How. Pr. R., 476; 1 Code. R., N. S., 404.) III. The fact to be pleaded in this case, and the only fact, is

Gelch a. Barnaby.

that the plaintiff was arrested maliciously, and without probable cause; the particulars in the complaint are merely evidences of that fact, and not pleadable. (10 How. Pr. R., 50; 5 Sandf., 566.)

IV. As to the allegations in the complaint, denying what was charged in the affidavit upon which the plaintiff was arrested, see 1 Johns. Ch. R., 106.

BRADY, J.-The motion in this case must be granted, with liberty to the plaintiff to insert such allegations as he may be advised are material and necessary to charge Lewis Beach. The doctrine of the case of Shaw a. Jayne (4 How. Pr. R., 119), as to the forms of pleadings in these cases, is correct. The evidence substantiating the plaintiff's claim should not be set forth. The plaintiff relies upon an imprisonment which was instigated by Lewis Beach, and was malicious. He should charge these facts only, leaving the facts and circumstances of the arrest, and those showing it to have been malicious, until the trial.

Motion granted, with $10 costs, to abide event, and with liberty to plaintiff to amend his complaint, by making other allegations, if so advised.

GELCH a. BARNABY.

New York Superior Court; Special Term, July, 1858.

SECURITY FOR COSTS.-UNDERTAKING.

A non-resident plaintiff, in an action for chattels, took proceedings of claim and delivery in the action, under section 209 of the Code, and gave the usual undertaking, and, thereupon, the defendants obtained a return of the chattels, under section 211.

Held, that the plaintiff might be required to file security for costs, notwithstanding he had already given one undertaking.

Whether the defendant, after having obtained a return of the property, could maintain an action upon the plaintiff's first undertaking,—Query?

Motion that plaintiff file security for costs

Gelch a. Barnaby.

The facts appear in the opinion.

T. W. Barnaby, for the motion.

E. J. Porter, opposed.

BOSWORTH, J.-The defendants move for an order that plaintiff file security for costs, on the ground that she has become a , resident of New Jersey since the action was commenced. The motion is opposed on the ground that this action is brought to recover possession of personal property, and that plaintiff gave an undertaking with sureties, such as is prescribed by section 209 of the Code. To this it is answered, that the defendants required and obtained a return of the property by executing with sureties such an undertaking as is provided for by section 211 of the Code.

The Supreme Court held in Rogers a. Hitchcock, that a plaintiff in replevin who had executed the proper bond, would not be compelled to give a further bond as security for costs, although not a resident of this State (9 Wend., 462). This was probably so decided on the ground that a bond under 2 Revised Statutes, 523, § 7, was as broad as a bond under 2 Revised Statutes, 620, 4, and that by the bond first given the defendants had been furnished with all the security to which 2 Revised Statutes, 620, entitled him.

The Revised Statutes did not enable a defendant in a replevin suit to procure a return of the property to himself by merely demanding it, and giving prescribed security.

There is much in the provisions of the Code in support of the proposition, that when a defendant in an action to recover the possession of personal property requires a return of it to himself, and complies with section 211 of the Code, he thereby loses and is deprived of all right to bring an action for any purpose, on the undertaking given by the plaintiff to obtain the possession pendente lite.

If the defendants succeed, the only judgment they can recover is one for costs. It may, at least, be said that the Code does not in terms allow them to assess damages for the temporary interruption of their possession (Code, 277).

It is quite clear that the rights of the defendants to sue upon the plaintiff's undertaking may be very different from those

Fairbanks a. Tregent.

of a defendant in an action of replevin under the Revised Statutes.

I think, therefore, she is not exempted from liability to file security for costs because she gave an undertaking under section 209 of the Code, nor because she does not intend to reside permanently in New Jersey. Security for costs must be filed in twenty days.

FAIRBANKS a. TREGENT.

Supreme Court, Second District; Special Term, April, 1858. EXAMINATION OF PARTIES.-DEPOSITION ON COMMISSION.

Under the provision of section 399 of the Code,---that a party may be examined as a witness in his own behalf, the same as any witness, on previous notice, except in certain cases,—a non-resident is entitled to be examined upon commission in his own behalf, although the adverse party has not given any notice of his own examination.

Motion for a commission to examine the defendant on his own behalf.

The defendant was a resident of the State of Michigan, and this application was made by him for the issue of a commission in the action for the examination of himself and other nonresidents of this State on his own behalf. No notice of the intended examination of the plaintiff at the trial had been given in the action, and it was insisted by the plaintiff in opposition to the motion, that under such circumstances a commission could not issue for the examination of the defendant on his own behalf.

Livingston K. Miller, for the motion.

Wm. Tracy, opposed.

LOTT, J.-It is provided by section 399 of the Code as amended in 1857, that a party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness, on previous notice, except in certain cases. The

Fairbanks a. Tregent.

defendant is a resident of Michigan, and it is conceded that this is a case in which he can be examined on the trial. The provision is general. It permits the examination of a party the same as any other witness. This necessarily, in my opinion, places him in the same position as any other person to be examined in reference to time, manner, and in every other respect, and consequently authorizes him to be examined conditionally, or under a commission as well as on the trial. There is certainly nothing in its terms restricting such examination to the trial, and I cannot discover any reason, in the spirit or policy of the act, which requires such a construction. It is true that there is a subsequent provision in the same section, which declares that when a notice of such intended examination of a party is given in an action, in which the opposite party shall reside out of the jurisdiction of the court, such party may be examined by commission issued and executed as now provided by law. That is entirely disconnected with the portion of the section first quoted, and while it may be difficult to discover the necessity of this last provision, yet that does not warrant a construction of a clause general in its terms, so as to limit it to a certain class of cases only. I think, however, that the provisions are not necessarily inconsistent. As a general rule, a party can only be examined on a previous notice given by himself of such intended examination; but whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received. As, however, a party residing out of the jurisdiction of the court may not be able to be personally present, to avail himself of that right, the privilege of taking his examination under a commission is given to him on receiving a notice of the intended examination of his adversary, without demanding a compliance with the requisitions of law necessary to authorize the examination of other persons in such manner.

After a full examination of the question, which was ably discussed by counsel, I have concluded that the commission must be awarded, directing the examination of the defendant as well as the other persons named in the notice of motion.