Haulenbeck a. Gillies. Court in a somewhat similar case (Monell a. Weller, 2 Johns., 8), is therefore incapable of reversal or affirmance. For this reason the motion to dismiss the appeal must be granted. Appeal dismissed, without costs. BRADY, J. (dissenting).-Section 13 of the act relating to the district courts of this city, passed April 13, 1857, provides that where the defendant is not a resident of the city, or where the plaintiff is not a resident, and gives the security required by section 23 of that act, the summons must be returnable in not less than two, nor more than four, days from its date, and must be served at least two days before the time for appearance mentioned therein. And further, that in all other cases it must be returnable not more than twelve days from its date, and must be served at least six days before the time of appearance. Section 23 referred to, provides that plaintiffs not residing in the city and county of New York shall, before the issuing of the short summons, as provided in section 13, file with the clerk of the court a written undertaking, &c. Prior to the act of 1857, a short summons issued from a district court, in favor of a nonresident plaintiff, upon his giving proof of the fact of nonresidence, and tendering to the justice the security required by law. (Act to abolish Imprisonment for Debt, &c., Laws of 1831, p. 396, § 32.) And in respect to this proceeding, section 32 of the act of 1831, and section 13 of the act of 1857, are substantially the same. Under the former it has been held that the plaintiff might proceed by long or short summons at his option, but if he choose the latter mode, he must give security. It was a privilege, not a restriction. (Nichols a. Tracy, 1 Sandf., 278; King a. Dowdell, 2 Ib., 131; Kelly a. Kelly, 2 E. D. Smith, 250.) Section 13 of the act of 1857 imposes no restriction, but grants a privilege upon compliance with a condition,namely, giving security, in which case the summons may be short. The language of the section is: "Where the plaintiff is a resident, and gives the security required by section 23;" but where he does not give the security, it seems to me to be clear that he is then controlled by the second subdivision, which provides that in all other cases the summons must be returnable not more than twelve days, &c. There are no words of prohi Haulenbeck a. Gillies. bition against proceeding by long summons. That is the general mode, while the proceeding by short summons is a speciality allowable when security is given. For these reasons I think the justice erred in dismissing the complaint. It is said that section 45 of the act of 1857 renders it the duty of the justice to dismiss the action in all cases, if it appears that the plaintiff is a non-resident, and has not filed the security contemplated by section 23. I submit with great respect that such a construction is not warranted by the language of the section referred to. It provides that the justice shall dismiss the action when it is objected that the plaintiff is a non-resident of the county, and has brought the action without giving the security required by the act. I think I have shown that security is only required when the proceeding is by short summons. Indeed, the language of section 23 so distinctly provides, as I understand it, in connection with section 13. It is as follows: "Plaintiffs not residing in the city and county of New York shall, before the issuing of the short summons, as provided in subdivision one of section 13 of this act, file with the clerk of the court, a written undertaking," &c. There is nothing, therefore, in section 45 which affects adversely the conclusion at which I have arrived, because it appears that the justice has no power to dismiss the complaint, except in cases where a non-resident plaintiff proceeds by short summons without giving security. The dismissal of the complaint was not upon failure of proof, or upon the ground that the facts alleged by the plaintiff were not sufficient to constitute a cause of action. The case differs, therefore, from Monell a. Weller (2 Johns., 8). The justice dismissed the action upon the ground that he had no jurisdiction, and his decision is reviewable in this court for that reason. I think the justice had jurisdiction, that he erred in dismissing the complaint, and that the judgment should be reversed. Morrison a. Garner. MORRISON a. GARNER. New York Common Pleas; General Term, December, 1858. FRAUDULENT PURCHASE.-CONCEALMENT OF INSOLVENCY. The defendant, who was accustomed frequently to purchase from the plaintiffs, for cash, bills of exchange for remittance to Europe in his business, becoming insolvent, procured them to sell him bills to a large amount upon credit, concealing his insolvency, though making no direct false representations as to his condition, or the use to which he should put them; and he then sold these bills in the market. Held, that the circumstances being such as to show that he purchased the bills with intention to make such use of them, and knowing his inability to pay for them, the purchase was fraudulent, and that he was liable to arrest in an action for their value. Appeal from an order denying motion to vacate an order of arrest. The facts are stated in the opinion. BY THE COURT.*-DALY, J.-Upon the evidence before him, the judge below was warranted in drawing the inference that the defendant fraudulently contracted the debt; that he purchased the draft with a knowledge that he was at the time insolvent, and would not be able to pay the amount at the expiration of the credit, unless he applied the proceeds derived from the sale of the bills to that purpose. The bills were sold to him upon the assumption, from the usual course of his business, that they were to be used by him to remit funds to Europe; but on the contrary, according to his own statement, he sold the bills in this market, as he alleges at profit, but does not disclose in his affidavit the name of the person or firm to whom he sold them, or what he did with the proceeds. When the bills were offered for sale by the broker, he took a day to consider whether he could make use of them, though he had frequently purchased bills of the same drawers * Present, DALY, F. J., BRADY and HILTON, JJ. Morrison a. Garner. and indorsers from the broker, and was in the habit of deciding at once as to their purchase. On the next day, the 25th of September, 1857, he announced that he would take the bills upon the terms of paying for them in cash on or before the 20th of October following; which was agreed to, and the bills were sent to him, which was the first occasion of his purchasing bills of this description from the broker upon credit. When they were delivered to him, he was in the office of his brother, of the firm of Garner & Co., which office adjoined and communicated with his own, and was engaged in close and earnest conversation with his brother; and the witness testifies that his manner was excited and flurried. At that time he was closely connected with his brother's house,-being, according to his own statement, indebted to them in the sum of $600,000, against which they held securities estimated by them at $400,000, but by him at several hundred thousand dollars more than the amount of Garner & Co.'s claim; which securities, according to the testimony, have not depreciated since that time, but have actually appreciated in value between the time that the defendant's failure was announced and the time when he executed his assignment. On the day after the defendant bought these bills, the house of Garner & Co. failed; and on the day, or a day or two after that event, when the defendant was applied to to cash the bills, he told the plaintiffs' agent that the price of the bills was as safe as if the plaintiff's had the money in their own pockets. He swears that when he bought the bills the day before the failure of his brother's house, he had no intimation or suspicion that that house would have to suspend, and that the first intimation he had to that effect was on the day after their failure,-a statement improbable upon its face, and in respect to which I think the judge below was justified in disbelieving him, as he was involved in large transactions with that house. They had supplied him with exchange the month previous to the amount of forty thousand pounds; and it was in evidence that, for some days before the failure of Garner & Co., it was a matter of public notoriety among business men that that firm was in difficulty, and would be likely to fail. He swears that the failure of that firm affected his credit, and that the large amount of securities held by them and by him became so depreciated by the crisis, that he was compelled to Morrison a, Garner. suspend twenty-three days after. But the witnesses of the plaintiff testify that there was no material depreciation in securities between the time of the failure of Garner & Co. and the failure of the defendant; and if the defendant wishes the court to believe, after this evidence on the part of the plaintiff, that his condition was unexpectedly and materially changed by the failure of his brother's house,-that his failure sprang from causes of which he had no knowledge when he bought these bills,―he should have specified or indicated some of the securities held by his brother's house and by himself, the rapid depreciation of which brought about his failure so unexpectedly; the more especially when it is in evidence that there was a rise in the value of securities between the time of his suspension and the time of his assignment. He swears that he was disappointed, on the 14th of October, in effecting an arrangement for some £20,000; and that as financial matters and securities became worse and worse, and more depreciated after the 28th of September, he was compelled on the 17th of October to yield to the pressure of the times. In the statement as to the condition of the times, and the general depreciation of securities between the periods indicated, he is contradicted by the other witnesses; and the impression made upon my mind by the testimony is, that nothing occurred to cause his failure, from the time he purchased the bills until he suspended, that he did not know and anticipate when he bought them. The day's deliberation before concluding the purchase-the purchase of them upon credit, contrary to his usual business custom-the omission to enter the transaction in his books-the fact that he did not purchase them to remit to Europe, but that he might sell them again in the market here-and his silence as to the name of the person or firm to whom he sold them, and as to what he did with the proceeds-are all circumstances justifying the conclusion arrived at by Judge Ingraham, that he purchased them fraudulently. His attempt to explain why he did not have the purchase entered in his books is unsatisfactory. It was in evidence that it is the universal custom among merchants to make entries in their books of the purchase or sale of bills of exchange as soon as they are purchased or sold; and it would be apparent without this evidence that it is unmercantile, and strongly suspicious, |