Fenn a. Bolles.

ordinarily, to have this done through a receiver, as the surviving partner, against her consent, is carrying on the business with such stock or implements. The defendant may be appointed such receiver, with the direction to sell, and the usual powers.

2. As to the good-will. In the ordinary sense, Lord Eldon's definition of a good-will is," the probability that the old customers will continue to come to the old place." I decided in Dougherty a. Van Nostrand (1 Hoffman's Reports, 68), that such a good-will belonged to the firm, and was to be sold with other assets. The case of Martin a. Van Schaick (5 Paige, 472), and that from 1 Paige, cited, confirm this view; and I have no doubt of the law. See also Hine a. Hart (10 Jurist, 106).

But the text-writers, under the head of Good- Will, discuss another right, somewhat similar, that is, the right to use trademarks of the firm, or the name of the firm (Collyer, § 162, n. 3). There is nothing in the present case of trade-marks, by devices or emblems, used by the firm. The question is simply the right to use the firm name.

The case of Lewis a. Langdon (7 Simons, 421), appears to hold that this right survives as matter of property to the remaining partner. In Pidding a. How (8 Ib., 477), it is intimated that the representatives of the deceased partner may perhaps have a right to prevent its use by strangers.

I cannot understand how, if the partnership name or style has acquired or become the source of any value whatever, that value is not common property. The theory must be, that an equal contribution of intelligence, fortune, credit, or integrity has been made, to obtain the reputation which creates the value. Even if this theory could be allowed to be refuted, the implied agreement to share the fruits of an unequal contribution would remain.

One of two things seems to me clear. Either the partnership name and style ceases and perishes with the firm itself, and neither the representative nor the survivor is entitled to use it; or it is an interest held in common after the death of one partner as fully as before, precisely as all tangible property is held,that is, possessed legally by the survivor for mutual benefit.

At any rate, there is sufficient to support an injunction, until the hearing, against using the old firm name upon the parcels. The order will modify the injunction, so as merely to restrain

The Arctic Fire Insurance Company a Hicks.

the use of the name of Hobart Fenn, or Hobart Fenn & Co., upon any faucets manufactured by the present defendant.

The defendant to be appointed a receiver, with directions to sell the property of the late firm, collect the debts, &c.

THE ARCTIC FIRE INSURANCE COMPANY a. HICKS. Supreme Court, First District; General Term, July, 1858. An order returnable on Sunday is a nullity.

A party is not justified in disobeying an order, because it is merely erroneous.

Appeal from an order granting an attachment for contempt.

On the 4th of March, 1858, Mr. Justice Ingraham granted an order for the examination of the defendant as a judgment debtor on supplementary proceedings. It was made returnable on the 14th of the same month, but plaintiff discovering that it was returnable on Sunday, had it altered to the 15th, and gave defendant verbal notice of the alteration. On the 15th the defendant was not present. Upon application of plaintiff's counsel, Mr. Justice Clerke granted a certificate, and a further order for defendant to appear on the 19th of March, but again he was not in attendance. Mr. Justice Clerke then granted an order to show cause why an attachment should not issue, upon the return of which, before Mr. Justice Davies, defendant's counsel objected to the issuing of the attachment, on the ground of irregularities, in that the first order was made returnable on Sunday, and that the affidavit of service was not read. After argument, Mr. Justice Davies ordered the attachment to issue. From this order the defendant appealed to the general term.

BY THE COURT.*-INGRAHAM, J.-If the order for the debtor to appear in the supplementary proceedings was returnable on Sunday, it was not a contempt on his part not to appear on Monday: the order was a nullity. The objection that the affidavit was not served with the order should have been taken on

* Present, DAVIS, P. J., and CLERKE and INGRAHAM, JJ.

Cruyt a. Phillips.

the return of the order. He had no right to disobey the order for that cause. The next order, for the 19th, made by Judge Clerke, appears to have been founded on the previously served affidavits. The defendant was in contempt for disobeying it. Even if it was erroneous, he had no right to disregard it. The matters he offered on the return of the attachment may be sufficient to purge the contempt, or, if not, to excuse him to some extent, and thereby reduce the fine to a nominal amount, but it afforded no reason for denying the motion. The order appealed from should be affirmed.

CRUYT a. PHILLIPS.

Supreme Court, Second District; General Term, February, 1858.

PLEADING.-UNDERTAKING.

In an action on an undertaking given upon the discharge of an attachment, it is not necessary to allege in the complaint that the attachment was duly issued, nor to show that the officer or court had jurisdiction to issue it, if it be shown that the action in which it was issued was brought and pending in a court of general jurisdiction.*

Form of complaint on an undertaking given on discharge of an attachment.

Appeal from a judgment overruling demurrer to complaint.

This was an action brought in the City Court of Brooklyn,

* CROWELL 4. CHURCH.-Supreme Court, First District; Special Term, April, 1858. This was an action brought under an order of the court, by the plaintiff, as receiver of the property of N. Van Brunt, against the defendant as administratrix, to recover the sum of $1330.88, for professional services rendered by said Van Brunt as attorney to the defendant's intestate.

The complaint set out the appointment and authority of the receiver in the premises as follows:

"The complaint of the above-named plaintiff shows to this court that by an order of the Supreme Court of the State of New York for the Second Judicial District, dated the 19th "day of November, 1855, and entered in the county of Kings with the clerk of said court on supplementary procedings after execution unsatisfied on a certain judgment in said court obtained by Albert N. Van Brunt,

Cruyt a. Phillips.

against the sureties in an undertaking given to the plaintiff, in a former action brought by him against one Biebuyck.

The complaint was as follows:

"The complaint in this action respectfully shows that on or about the 13th day of September, 1854, an attachment issued out of the Supreme Court, in an action commenced by Charles

plaintiff, against Nicholas Van Brunt, defendant; he was duly appointed receiver of the property and effects of Nicholas Van Brunt, and has duly entered into the duties of his said office, and brings this action under an order of the court."

To which complaint the defendant demurred, and for ground of her demurrer states

"That it appears by the face of said complaint that the plaintiff has not legal capacity to sue."

Whereupon the plaintiff moved for judgment on account of frivolousness of said demurrer.

Judah & Dickenson for the motion.

J. Winslow, opposed, urged among other grounds in support of the demurrer, that it did not appear in the complaint that the plaintiff was ever appointed receiver by any competent or lawful authority, nor by any valid order, and cited Webber a. Hobbie, 13 How. P. R., 383; wherein it is held that the authority to appoint a receiver in supplementary proceedings is "conferred not upon the Supreme Court, but upon the judges, as separate judicial officers." Also, the cases of Gillet a. Fairchild, 4 Den., 80; White a. Joy, 3 Kern., 83, and cases there cited.

The motion was argued before Mr. Justice Davies, who, after consideration, made an order denying the motion for judgment with $10 costs to defendant, with leave to the plaintiff to amend.

Stewart a. Beebe.—Supreme Court, First District; Special Term, June, 1858. This was an action by a receiver of the Bowery Bank, described in the complaint as duly appointed by an order of the Supreme Court. The defendant demurred, first, on the ground that the plaintiff had no legal capacity to sue, because the appointment of receiver must be made by a judge out of court, and not the court itself; and, second, that the complaint did not state the facts necessary to show that the order appointing the receiver was such as were required by the

statute.

Held, 1. That there is nothing to prevent the order for the appointment of receiver from being entered by the justice making it at any term of the court as other business.

2. That the complaint showing the plaintiff to be receiver of the bank appointed by the Supreme Court, by an order made upon a day named, upon filing security, and that such security had been filed, sufficiently showed the mode of his appointment. Enough was so stated to enable the defendant to take issue upon the legality of his appointment, if he please.

Judgment for plaintiff on demurrer, with leave to defendants to withdraw demurrer and answer on payment of costs.

Cruyt a. Phillips.

Cruyt, the plaintiff herein, against Paul M. Biebuyck, to recover-first, the proceeds of the sale of certain goods, laces, and embroideries of said plaintiff; second, for money lent by said plaintiff to said Biebuyck on his own request; and third, for money due by said Biebuyck to said plaintiff: that afterwards, and on or about the first of November, 1854, the said Biebuyck having appeared in said action, and being about to apply for a discharge of said attachment, the defendants herein, William F. Schmidt and John Phillips, undertook in the sum of $1700 that they would, on demand, pay to the plaintiff, said Cruyt, the amount of the judgment which might be recovered against said Biebuyck, not exceeding said last-mentioned amount: that said attachment was thereupon discharged, and that subsequently, and on the 5th of July, 1855, said plaintiff recovered a judgment against said Biebuyck, in said action, for $416.40, damages and costs, as appears by the record and docket thereof, duly entered and docketed, July 5th, 1855, in the county clerk's office of Kings county: that the said Biebuyck has not paid the amount of said judgment, or any part thereof: that a demand of payment thereof to said plaintiff was duly made of said defendants, on or about the 15th day of March, 1856, which they and each of them refused; and that they have never paid the same, or any part thereof, to said plaintiff, although often requested and demanded so to do, but are justly indebted to the plaintiff, by reason of the premises, in the sum of $416.40, with interest thereon from July 5th, 1855. "Wherefore," &c.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

The City Court overruled the demurrer and gave judgment for plaintiff. From this judgment the defendant Phillips appealed to the general term of the Supreme Court.

J. D. Dunn for the appellant.-I. Prior to the Code, it was necessary, in pleading the proceedings of inferior courts or officers of special jurisdiction, to state the facts conferring jurisdiction. (Cleveland a. Rodgers, 6 Wend., 438; Cornell a. Barnes, 7 Hill, 36, and note e., The People a. Koeber, 7 Hill, 39; Barnes a. Harris, 3 Barb., 603.