Coit agt. Bland. SUPREME COURT. COIT agt. BLAND. The judgment of dismissal of the complaint, in what was formerly called a common law action, is equivalent to a former judgment of non-suit in such action; consequently it does not bar another action. But this rule does not apply to equity causes. New York General Term, March, 1861. CLERKE, SUTHERLAND and ALLEN, Justices. By the court, CLERKE, P. J. The dismissal of the complaint, under the modern practice of the Code, seems to me in all respects identical with a non-suit, in actions which formerly were called common law actions. In all actions of this nature, I think, it was intended by the legislature, in enacting the Code, that the one term should be substituted for the other. It is also evident that the convocation of judges who framed and adopted the rules of this court, considered them identical. (See rules 23, 24.) In the language of the superior court, in Harrison agt. Wood, (2 Duer, 50,) "the dismissal of the complaint under the Code has no other effect than that of a non-suit under the former practice. There is a change of name, and nothing more." If this is a correct view there can be no doubt that the judge at the second trial properly decided not to regard the judgment in the first action as a bar to the second. A non-suit never precluded the plaintiff from bringing his action again, whether it was granted before or after the evidence was given on both sides; and the judge had a right to non-suit at any stage of the trial. (Jansen agt. Acker, 23 Wend., 280; Rudd agt. Davis, 3 Hill, 287.) The form of the judgment, in all these cases, was that the complaint should be dismissed. If the legislature intended that the dismissal of the complaint, in an action Peters agt. Kerr. at common law, should have the same effect as it had in equity cases under the old system, it would have distinctly said so. We are not to imply so important a change-a change that would operate so seriously on the rights of a suitor, as to prevent him from again trying to establish his claim after failing in the first instance from the accidental deficiency of proof, or from any other cause. A judge before whom a common law cause is tried without a jury, acts in the double capacity of court and jury; and when, instead of rendering a judgment in express terms for the defendant, he orders that the complaint should be dismissed, it is to be presumed he then acts as the court, exercising the prerogative which it has always possessed, of non-suiting the plaintiff, either before or after the evidence is given on both sides. The judgment should be affirmed. I. SUPREME COURT. DAVID J. PETERS agt. THOMAS KERR. In supplementary proceedings, the plaintiff must establish that the defendant has the money or means, before the defendant can be ordered to pay the judgment or be committed to jail. The defendant's statement may be very unsatisfactory to a creditor, and give rise to suspicion that he may be concealing money or property, but that does not warrant such an order. New York Special Term, August, 1861. THE defendant, in substance, swears he has no money or property. During his examination he discloses that he sold his real and personal estate, receiving therefor about $8,000, in March, 1860. He is asked for the items of the expenditure of that sum. His memory will serve him, as he swears, Williams agt. Fowler. only far enough to particularize about $6,000, but he knows that every cent of it has been spent, and he has none of it now. The plaintiff moves that the defendant be required to pay his judgment (over $1,000,) or that he be committed to jail. J. & G. W. Cook, for plaintiff. HARRINGTON & GRIEFF, for defendant. LEONARD, Justice. The plaintiff must establish that the defendant has the money or means before such an order can be made. The defendant cannot be committed to jail on suspicion, nor can any order be made that would have that result, unless it be admitted or proven that the defendant can comply with the order asked for. The defendant's statement is, no doubt, very unsatisfactory to a creditor, and gives rise to a suspicion that he may be concealing money or property, but that does not warrant the order for which the plaintiff asks. The application is therefore denied. SUPREME COURT. THOMAS WILLIAMS, respondent agt. SAMUEL FOWLER and FRANCIS B. WALLACE, impleaded, &c., appellants. Where a bond and mortgage was given on real estate for $10,000, payable in one year without interest, for the purpose of raising a loan of money, and it was agreed that the mortgagees instead of giving the money thereon should give their three several promissory notes at six months for the aggregate sum of $10,000, also without interest, and upon the receipt of which the mortgagor gave the mortgagees $500 as compensation for the advance or exchange of the notes for the mortgage, Held, on foreclosure of the mortgage, that judgment be entered declaring the bond and mortgage usurious, and dismissing the complaint with costs. Williams agt. Fowler. Poughkeepsie General Term, September, 1861. Before LOTT, BROWN, EMOTT and SCRUGHAM, Justices. APPEAL by defendants from a judgment at special term entered on report of a referee. WM. FULLERTON and RAYMOND & KNOX, for appellants. J. M. VAN COTT and BUCKHAM, CADY & SMALES, for respondent. By the court, EMOTT, Justice. The facts upon which this case turns are few, and so far as they are material to the question which it presents, they are undisputed. The defendant, Samuel Fowler, in August, 1855, applied to one John B. Murray, a broker in New York, for a loan of money to the amount of ten thousand dollars. He was told by Murray that this amount in cash could not be obtained upon the securities which he had to offer, being a mortgage upon the property now in controversy; but that in lieu of cash, notes or obligations, payable at a future day, might be obtained for such a mortgage, these notes could be sold or discounted immediately, and thus the cash, which was the object of the loan, obtained. Fowler assented to this arrangement, and the negotiation resulted in his giving the bond and mortgage for the foreclosure of which this action is brought by the plaintiff, to whom it has been assigned, and which is dated August 1st, 1855, and is conditioned for the payment of $10,000 in one year, without interest, and receiving from James W. Elwell & Co., to whom it was made, their notes for this amount of ten thousand dollars, payable in six months from the 4th, 6th and 9th of August, 1855, also without interest, and at the same time paying Elwell & Co. five hundred dollars as compensation for the advance or exchange of these notes for the mortgage. I state the facts as they are reported by the referee and agreed to by the plaintiff. It was contended at the trial, and there was some evidence to sustain the Williams agt. Fowler. allegation, that the compensation paid to Elwell was one thousand and not five hundred dollars. I agree in the conclusion of the referee, however, upon this point, and as I have already observed, I consider the difference immaterial to the decision of the case. Unless the transaction out of which this mortgage grew can be sustained as something else than a loan of money, and as not within the usury statutes, it must vitiate the securities now in dispute, whether the price paid Elwell was five hundred or a thousand dollars. Either sum was more than the lawful interest upon the amount of his notes, from the time they were payable and were paid by him, until the mortgage was due. The counsel for the plaintiff contends that this was a "loan of credit" for six months, and a loan of money for six months more, and that five per cent. in all was less instead of more than the lender might legally have taken. I apprehend that such an expression cannot be predicated of the exchange of the lender's own promise to pay money for the obligation of the borrower, and where the object is to borrow or raise money. Indeed, the acute and searching criticisms of Judge GARDINER, in the Dry Dock Bank agt. The American Life Insurance Co., (3 Comst., 344,) and of Judge SELDEN, in Schermerhorn agt. Talman, (4 Kern., 93,) have pretty effectually shown the incorrectness of the expression "loan of credit" in any case. A man may give his credit to another without compensation, he may become his guarantor or his surety, or he may promise to pay his debt, without requiring or receiving any compensation or equivalent, beyond the obligation imposed by law on the other party to repay him any amount which He may be compelled to pay, in consequence of the responsibility which he assumes. But he may also exact and receive. compensation for assuming such a responsibility and risk of payment of another's debt as his indorser, guarantor or otherwise, and this is selling his credit. It is unnecessary to discuss, because it is unnecessary to |