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Co. v. Domestic Co. 49 Geo. 71; Boston D. Co. v. F. M. Co. 114 Mass. 69.*

The American case most directly in point, and perhaps the best considered, is that of Life Ass. of America v. Boogher, determined in St. Louis Court of Appeals and reported in 4 Cent. L. J. 40. The circumstances of the case were very similar to those of the Prudential Life Insurance Association v. Knott, already referred to. If it were possible to obtain an injunction against a libel, the facts alleged in both these cases authorized its issue. But in both it was refused. It is true that the Constitution of the State of Missouri declares" that every person may freely speak, write or print on any subject, being reponsible for the abuse of that liberty." But the opinion of the court leaves no doubt in our minds, that the injunction would have been denied in the absence of this constitutional provision.

Conceding, therefore, as we must, that the authorities overwhelmingly establish the proposition that equity has no jurisdiction to restrain the publication of a libel, even though its publication threatens to prove ruinous to personal reputation, or to rights of property, or to both, let us inquire on what principles this rule is based. And here we think, every candid lawyer must admit that, in most of the reported cases, the judges have reasoned either very poorly or not at all. Lord Eldon, as we have shown, was content to remark, "the publication of a libel is a crime, and I have no jurisdiction to prevent the commission of crimes." But surely, equity has no tender regard for criminals, nor is its arm paralyzed by the mere presence of crime. Lord Chancellor Cottenham, in Fleming v. Newton, 1 H. L. R. 375, doubted the right to interfere by injunction, because such interference would impair the right to trial by jury. But if injunctions are to be refused in every case in which an issue of fact can be formed, then they must soon become obsolete. The reason which is now urged as the most unanswerable is, that it would be dangerous to concede to equity any control over the liberty of speech and of the press. And certainly, if there is any reason why equity ought not to interfere, this is the true one. But is it not less dangerous to confine even the freedom of writing and speaking within such bounds as an enlightened judiciary may see are indispensable to the protection of character and property, than it is to admit that the right to abuse this freedom is practically above and beyond the law? The power of the press is so great, and the necessity, upon grounds of public policy, of permitting everything like fair or decent criticism of public and private persons is so obvious, that, were the power to enjoin libels conceded, we might rest assured that it would be exercised in none but the clearest cases. Ordinarily, equity will interfere in cases of irreparable

In the second edition of Townshend on Slander and Libel, p. 91, Meserole v. Goldsmith, decided in New York in 1870, and Miller v. Shepherd, decided in Missouri, are referred to as authorities, for enjoining libels. We have never seen any report of either case.

injury, where no adequate remedy exists at law. And certainly, many libels do prove irreparable injuries both to persons and property, and are obviously published to accomplish that result. In but few cases has the injured party any adequate remedy at law. Nor is the fact that the libeler is liable to conviction and punishment for his crime worthy of any special consideration. No court of equity would refuse to enjoin an irresponsible person from tearing down my house or laying waste my lands, on the suggestion that such person might, if permitted to proceed, be tried and perhaps punished under an indictment for malicious mischief. A. C. F.

GARNISHEE ORDER NOT A JUDGMENT.

ATLANTIC AND PACIFIC RAILROAD ET AL. v. HOPKINS.

Supreme Court of the United States, October Term, 1876.

Under the Kansas code, the order in a proceeding in aid of execution directing a garnishee to pay to the judgmentcreditor money which he owes the judgment-debtor, gives a right of action only, and is not a judgment.

Hopkins obtained a judgment in the United States Circuit Court for the district of Kansas, against the St. Louis, Lawrence & Denver Railroad Company, for some $6,000, and issued execution thereon, which was returned unsatisfied. Then garnishee summonses were issued against each of the plaintiffs in error, and interrogatories administered under the Kansas code practice, to which they filed in due course answers under oath.

The Pacific Railroad Company admitted, it was lessee of the judgment-debtor's railroad, under an elaborate instrument set out in its answer, but claimed various items of set-off, specifically set forth against the rental accruing due under that lease, and the Atlantic & Pacific Railroad Company admitted, it had assumed all the liabilities of the Pacific Railroad. But both companies denied in general terms any indebtednes to the judgment-debtor. The same cause was before Judge Dillon, in Opdyke v. Pacific Railroad, 3 Dill. 55. Hopkins filed notice that the answers of the railroad companies were not satisfactory, and also moved for an order, "that they and each of them be forthwith required to pay into this court the amount of the judgment and costs in this action." Then the court (Dillon J.), over the objection of the garnishees, rendered judgment against them on their answers to the interrogatories, finding them to be indebted to the judgment-debtor, and ordered them to pay the amount of the original judgment and costs into court, or, in default, that execution should issue against them.

The first error assigned in the Supreme Court was the rendition of final judgment against the garnishees. on their answers, without suit, although they deny their indebtedness. The other errors assigned affected the merits of the case, and were not noticed by the Court.

J. P. Usher and C. E. Bretherton, for plaintiff in error; Clough & Wheat, for defendant in error. Mr. Chief Justice WAITE delivered the opinion of the Court:

The Supreme Court of Kansas, since the order complained of in this case was made, has decided that an

order in a proceeding in aid of execution, under section 490 of the civil code of that state, directing a garnishee to pay to the judgment-creditor money which he owed the judgment-debtor, was not a judgment and did not determine finally the liability of the garnishee. The language of the opinion is as follows: "The making of it [such an order] is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee, that the debtor previously had. It is in effect only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater right than the debtor had, and the garnishee loses no rights. And the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action." Board of Education v. Scoville, 13 Kas. 32. In a previous case, Arthur v. Hale, 6 Kas. 165, it was held to be error to award execution against a garnishee to collect the money, in case he failed to make payment according to the order. As the practice in the courts of the United States must conform, as near as may be, to that in courts of the state (Rev. St., sec. 914), these decisions construing the practice acts of the state are binding upon the courts of the United States. It follows that the circuit court erred in directing that execution might issue in this case against the garnishee, if payment should not be made according to the order. To that extent the order of the circuit court is reversed, but in all other respects affirmed; the defendant in error to pay the costs in this Court.

The cause is remanded, with directions to modify the order complained of by striking out all that part thereof which directs that execution may issue.

NOTE. Although the decision of the Court is in terms confined to the Kansas practice, yet the ruling seems applicable in all states which have adopted the New York code of procedure. Sec. 490 of the Kansas code is almost identical with sec. 297 of the code of New York, sec. 467 of that of Ohio, and sec. 719 of the California code; and those provisions have received the same limited construction as the Kansas section. See Rice v. Whitney, 12 O. S. 358; Edgarton v. Hanna, 11 O. S. 323; Welch v. R. R. Co., 11 0. S. 569; Bank of Rochester v. Bank of Sandusky, 6 O. S. 254; Rodman v. Henry, 17 N. Y. 482; Bank v. Pugsley, 47 N. Y. 368; Parker v. Paige, 38 Cal. 522.

INTERPRETATION "PERSON.”

UNITED STATES V. THE KANSAS PACIFIC RAILWAY COMPANY ET AL.

United States District Court, District of Kansas, February Term, 1877.

Before HON. C. G. FOSTER, District Judge.

The word "person," as used in the provision of the Revised Statutes of the United States prescribing penalties for the presentation of fraudulent claims against the government, does not include corporations.

On demurrer to plaintiff's petition.

Matt. H. Carpenter, S. W. Johnston, and J. L. Pendery, for plaintiff; J. P. Usher, C. E. Bretherton and C. Monroe, for the railroad company.

FOSTER, J.:

This suit is brought on the relation of John S. Pendery, to recover from the Kansas Pacific Railway Co. and others a large sum of money-$2,287,280.00-as a statutory penalty or forfeiture for presenting to the Treasury Department of the United States for payment, and receiving payment thereon, a lot of claims and vouchers for transporting troops, munitions of

war, and military supplies over the railroad of the defendant company, from the year 1868 to 1875, which claims and vouchers the plaintiff alleges were false, fraudulent and excessive.

The law under which this suit is brought being a penal statute, it should not be enlarged by implication, but should be strictly construed. 18 Wall. 409; 2 Dill. 224. Under the common law of England, corporations could be indicted for misfeasance and nonfeasance, and the same principle has been recognized by many of the state courts in this country. It being settled, however, that there are no common-law offences cognizable by the United States courts, but only such as are declared so by act of Congress, it may be questioned whether the federal courts would follow the English rule on this subject. But that question is not important in this

case.

The only point here is, whether or not corporations are included in the word persons, and as such liable to the penalty prescribed in sec. 3490 of the Revised Statutes, under which this suit is brought.

The tendency of modern decisions is to hold corporations liable as to duties and responsibilities, the same as individuals. 2 Dill. Corp. sec. 746. But after a careful reading of the law under which this suit is brought, and the Act of 1863, from which it is taken, I can not bring my mind to believe that Congress intended to include corporations within the provisions of the act. The whole tenor of the law seems to preclude its applicability to corporations. Sec. 1 of the Act of 1863 (U. S. Statutes at Large, vol. 12, p. 696) provides, if any person in the land or naval forces of the United States shall do any of the acts therein specified, being the same as prohibited by sec. 5438 of the Revised Statutes, he may be arrested and held to trial by court-martial, and, if found guilty, shall be punished by fine and imprisonment, etc. Sec. 3 of said act provides that any person not in the military or naval forces of the United States, * who shall do or commit any of the acts prohibited by any of the foregoing provisions of this act, shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs, etc., and every

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such person shall, in addition thereto, on conviction in any court of competent jurisdiction, be punished by imprisonment not less than one, nor more than five years, or by fine, etc.

Now, sec. 1 of this act is re-enacted in substance in sec. 5438 of the Revised Statutes, omitting its restriction to persons in the land or naval forces, and making it applicable to every person, whether in the land or naval forces or not, thus doing away with the distinction between such persons as are in the United States service and those that are not, and providing a common punishment for both classes. And sec. 3 of said act, which provides for a penalty and forfeiture by civil proceedings, is re-enacted in sec. 3490 of the Revised Statutes, omitting the punishment clause, which is provided for in sec. 5438.

If possible, in construing statutes, the legislative intent must be ascertained from the words of the act itself; and as the last act does not seem to indicate an intention to enlarge the scope of the act of 1863, but merely to arrange its provisions under different sections and titles, we may well look to the original act for light on this subject.

Did section 3 contemplate bringing corporations within its provisions? It would seem, not. It provides that every person, not in the military or naval forces, who shall commit the act, in addition to the penalty and forfeiture, may be imprisoned, etc. Sec. 5438, Rev. Sts., has the same provisions. These

statutes evidently refer to such a class as are capable of being employed in the land or naval forces, or in the militia.

It is further provided, in section 5 of the first act, that, in a suit to recover this forfeiture and damages, such person may be arrested and held to bail. The same provision is contained in section 3492 of the Revision. These various provisions of the law indicate to my mind that, in using the word person in the act of 1863, and in the Revised Statutes, it was the intention to restrict it to individuals, and not to make it applicable to corporations.

The demurrer to the petition will, therefore, be sustained.

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The bill and amended bill show that complainant, a colored woman, and Harriet Walker, were sisters, both being illegitimate, and born of the same mother. Complainant alleges that her sister first married one Penney, and after his death married Walker, and died in August, 1869, leaving her husband surviving, but leaving no child, and no mother, nor brother, nor sister, except herself; and she files this bill to recover certain real estate, which said Harriet owned at the time of her death, situate in the city of Memphis. The defendants demur to the bill. The demurrer was sustained and the bill dismissed, and complainant has appealed to this court.

The question presented upon the demurrer is, whether complainant, as sister of said Harriet, is entitled to the estate left by her, she having died, leaving her husband surviving. And we are of opinion, she is not.

The case of Webb v. Webb, 3 Head, 69, was one of the death of an illegitimate, in June, 1858, leaving no child, but a widow and a mother, and legitimate brothers. It was held that the rule governing the case was found in code, § 2423; and, after quoting the section, the court declares the course of descent to be, under said section, first, to the child or children of the illegitimate, if any there be; if none, then to the surviving husband or wife; if there be no surviving husband or wife, then to the mother; and if no surviving mother, then to the brothers and sisters by the mother, or their descendants.

In this case there was no child surviving; but the bill states that there was a husband surviving, and claims that complainant is entitled to the estate before him, or in exclusion of him, under § 2423, a, act of 1866-7. That section provides, "where any woman shall die intestate, having a natural-born child or children, whether she also leave a legitimate child or children, or otherwise, such natural-born child or children shall take by the general rules of descent and.distribution, equally with the other child or children, the

estate, real and personal, of his, her, and their mother; and, should either of such children die intestate, without child, his or her brothers and sisters shall in like manner take his or her estate." It had been held in 1 Cold. 562, that the illegitimate, though born of the same mother, do not inherit equally with the legitimate, the estate of a deceased brother; and while a legitimate brother or sister could inherit from an illegitimate brother or sister, born of the same mother, an illegitimate brother or sister, though born of the same mother, could not inherit from a legitimate brother or sister. And, for the purpose of enabling the children, legitimate and illegitimate, born of the same mother, to take her estate equally, and also to enable them to inherit equally, as between themselves, the act of 18667, § 2423, a, was passed. But it was not intended by said act to change the course of descent prescribed in § 2423.

The chancellor's decree will be affirmed.

NOTE. If the parties in this case had been of legitimate birth, the descent would have been cast upon the complainant, under the provisions of sec. 2420 of the Tennessee code. The act of 1819, ch. 13, was very nearly the same as sec. 2423, a, of the code, supra. This act went so far as to allow illegitimate children to take their mother's estate, according to the general rules of descent, in case she left no legitimate child. But no further rights of inheritance were conferred, so that an illegitimate child, claiming to inherit through her mother, who was dead, a share of her grandfather's estate, was held, as to this claim, to be still under the disabilities of the common law. Brown v. Kerby, 9 Hum. 460. The act of 1866-7, code 2423, a, allows illegitimates to take equally with their legitimate brothers and sisters, their mother's property; in this respect extending the benefits conferred by the act of 1819. It will be observed that the later act, in its second clause, provides that, "should either of such children die intestate, without child, his or her brothers and sisters shall, in like manner, take his or her estate." This clause is copied verbatim from the act of 1819. It was construed, in Riley v. Byrd, 3 Head, 20, as standing independent of the first clause of the same act; and, in that case, the brothers and sisters of an illegitimate were allowed to take his estate, "in like manner," that is, according to the general rules of descent. It would seem that the complainant in the principal case esteemed herself entitled to inherit her deceased sister's property, under the construction given to the statute in Riley v. Byrd. Webb v. Webb, 3 Head, 69, was decided by the same court, at the same term, under the act of 1851-2, ch. 39, now sec. 2423 of the code. That act provided, "when an illegitimate child dies intestate, without child or children, husband or wife, his real and personal estate shall go to his mother, and if there be no mother living, then equally to his brothers and sisters by his mother, or descendants of such brothers and sisters." It was held, that this enumeration of relatives in order indicated, that such order was to control the descent of the property, and that, consequently, the estate of an illegitimate, dying without children, would go to his widow in preference to his brothers. This case arose in 1858, after the passage of the act of 1851-2. The case of Riley v. Byrd, heard at the same term, arose in 1848, and the court adjudicated it with reference to the act of 1819. The contrary results reached in these two cases, at the same term of the court, might appear to indicate that the two acts could not stand together, and consequently, that the later act had repealed the former. But it is clear that the last adjudication does not recognize any repeal in turn, of the act of 1851-2, by the latest act of 1866-7, though the latter is, as to the clause in question, identical with that of 1819.

It is further to be observed, that the object which, in the principal case, the court attributes to the legislature in passing the act of 1866-7, is quite different from any recognized by the Supreme Court, in 3 Head. Woodward v. Duncan, 1 Cold. 562, declined to extend the construction of these statutes so far as to allow the estate of a legitimate to descend under the provisions. "Such" children, was held to mean illegitimates only. The principal case sug gests that the latest act was intended precisely to remove this restriction. But Riley v. Byrd construed the act of 1819 to apply in this respect only to the estates of "such" children, that is, illegitimates. The construction now

given to these statutes not only removes the restriction which the decision in Woodward v. Duncan recognized as then existing, but imposes in its place another, which takes away benefits then existing under the same statutes, as recognized by the decision in Riley v. Byrd. Legitimates might now perhaps inherit from their illegitimate brothers and sisters; but illegitimates may not.

The result of this decision is, that the case of Riley v. Byrd is disregarded, if not overruled, as an authority, and that both secs. 2423 and 2423, a, of the Tennessee code, which were apparently at variance under the decisions in 3 Head, supra, are allowed to stand together.

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P.

PERPETUATION

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The act of March 28, 1873, entitled, “An act to establish evidence of title to real property, and to restore the records of the same and to provide for the recording of deeds," which provides that any person claiming an estate or interest in real estate where deeds have been lost or destroyed, may apply to the circuit court, and have an adjudication of the title according to the evidence adduced by him, is in conflict with sec. 32, art. 4 of the constitution of 1865, declaring that "no law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed," and is unconstitutional and void, so far as it provides for proceedings which are to end in final judgment.

APPEAL from St. Louis Circuit Court.

LEWIS, C. J., delivered the opinion of the court: This is a proceeding instituted under "An act to establish evidence of title to real property, and to restore the records of the same, and to provide for the recording of deeds," approved March 28, 1873. The petitioner, substantially following the terms of the act, sets out a chain of title under which she claims the real estate described, embracing a number of deeds, some of which, she alleges, have been lost or destroyed. Her prayer is as follows: "Wherefore, your petitioner prays the honorable court to hear and determine this petition, and adjudge, determine and decree that the title to the said undivided one-twenty-seventh part of said survey of land belongs to your petitioner, and that the same be vested in her in fee-simple absolute."

The first section of the act, with great particularity and much verbiage, provides, in effect, that any person claiming an estate or interest in any lands whose deeds have been lost or destroyed, may apply by petition to the circuit court of the proper county, setting forth a description of such lands, the nature of his interest therein, and a description of the lost deeds, by dates, contents, and parties therein. He shall also set forth the manner in which his deeds were lost or destroyed, and may pray the court to "hear and make a record of such evidence as the said petitioner or petitioners shall produce touching or concerning his, her or their alleged estate or interest in and to said lands described in his, her or their petition." Nothing here follows indicating, that the court is to make any such record as is prayed for. But, in lieu thereof, 66 upon hearing such testimony and proof of title as is produced by the said petitioner or petitioners, *

the estate or interest of the said petitioner shall be adjudged and determined by the said court, according to the evidence adduced," etc.

The second section provides for notices by newspaper publications, addressed "to all whom it may concern," and by service on such persons as may be in possession of the land, and for a submission of proof at the next term of the court. The third section allows any person claiming an adverse interest in the lands to appear and answer the petition. Then, "if upon a final hearing, * the court shall find the

allegations of said petition to be substantially proved, it shall order a decree, * adjudging said petitioner or petitioners to be seized of an interest and estate in the said lands, according to the allegations and prayer of the said petitioner or petitioners, which said decree shall be conclusive against all persons and parties who may appear and answer in said cause, or who shall have been personally served with notice, and shall be prima facie evidence against all other persons claiming said premises, from the time of entering of the said decree."

By the fourth section it is provided that any person claiming an interest in the lands adverse to the decree, who has not been personally notified, and has not appeared and answered, may, upon twenty days' notice, move to open the proceedings; whereupon proofs shall be heard and "the court shall adjudge the ownership and title of said lands, according to the evidence adduced," etc. If no such motion be made within two years, the decree becomes conclusive against all persons whomsoever, except infants, lunatics and married women, who may appear within two years after a removal of disabillity, etc.

The fifth section provides for a recording of the decree, and makes a certified copy evidence, etc. The sixth section requires the proceedings to conform, "as near as may be, to the rules and practice in civil cases." The seventh section authorizes a second recording of any deed, etc., when the first record has been lost or destroyed.

From this synopsis of the entire act, two things are apparent: First, that in all the judicial proceedings contemplated, the only possible result is a judgment or decree of title; which judgment is to be prima facie conclusive against some persons, absolutely conclusive against some others, and, in certain conditions, conclusive against all the world. Second, that in none of these proceedings is any action to be taken for "establishing evidence," as that expression is generally understood.

To establish evidence-which means to secure its preservation for possible future use in a judicial controversy is one thing; to render a judgment or decree-which ends all controversy-is a very different thing. The one implies that the office of the testimony is yet unfulfilled; the other, that it has performed its functions and may henceforth be dispensed with. In the one case, the title or right remains in statu quo and liable to any countervailing proofs by the adverse claimants; in the other, it is divested of all existing uncertainty, and freed forever from the adverse and defeated claim. No further argument can be needed to show that the subject of rendering final judgment and decrees is not expressed in the title, "An act to establish evidence of title to real property, and to restore the records of the same, and to provide for the recording of deeds."

Section 32, article 4 of the State Constitution of 1865, declares that: "No law enacted by the General Assembly shall relate to more than one subject, and that shall be expressed in the title; but, if any subject embraced in an act be not expressed in the title, such act shall be void only as to so much thereof as is not so expressed." The act before us violates this commandment in every aspect. Not only does it omit from the title the chief object to be effected by the body of the

act; it also excludes from the body the purpose most conspicuously displayed in the title.

The grossest frauas ever perpetrated in the legislation of the past, were those wherein an enactment enforced a duty or a measure, of which no notice appeared in the title. Careless or unsuspecting citizens and legislators, finding nothing objectionable in the title, were too often indisposed to look any further. The most obnoxious laws have thus gone undetected through all the forms of legislation, under an introductory disguise of innocence or apparent utility. Hence the practical wisdom of the constitutional provision above quoted. If any illustration of the wrongs it may prevent had been specially designed by the framer of the act under consideration, he could not have more happily succeeded. The citizen who should find nothing alarming in the establishment or perpetuation of any possible evidence affecting his right of title, might suddenly find the latter imperiled or destroyed by a process of very different import. If he happen not to have been served with personal notice, and to have neither seen nor heard of the newspaper publication "to whom it may concern," for the space of two years, he may find his title divested by a clusive" judgment, under the fourth section, and yet never be able to comprehend how such final destruction could lurk in a mere proceeding to "establish evidence."

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For the reason stated, we find the act unconstitutional and void, in so far as it provides for proceedings which, in every instance, are to culminate in a final judgment; no reference being made in the title to any such conclusion. It can not be assumed that the act could be constitutionally enforced by a decree merely establishing the evidence, without any judgment upon the title. For, the whole proceeding being statutory and in derogation of the common law, it must be strictly followed. No provision is made for a decree or order establishing the evidence, and, therefore, no such decree or order would be authorized.

The provisions not relating to judicial proceedings may have been deemed desirable for the purpose of giving some color to the title of the act. They propose nothing whatever, that was not already provided for under the general law.

The parties who appeared or were summoned in this cause, under the provisions of the act, demurred to the petition, as not stating facts sufficient to constitute a cause of action, specifying the unconstitutionality of the legislation relied on, with other objections which we need not notice. The circuit court sustained the demurrer. Its judgment is affirmed. All the judges

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ence between the value of the stock as it was represented to be, and as it is in fact.

2. RETURN OF CERTIFICATE NOT NECESSARY.-In such an action it is not necessary to aver or prove that the plaintiff had offered to return the certificate of stock given him; though such an averment would be required in a suit to recover consideration for a contract which had been rescinded.

3. A DEFENDANT can not prove at the trial a variance between the pleadings as served on him and the record.

4. EVIDENCE OF REPRESENTATIONS TO OTHER PERSONS ADMISSIBLE.-In an action for fraudulent representations, it is competent to prove representations made to other persons, at or near the same time, and of a similar character, and under similar circumstances, on the question of fraudulent intent.

5. . Order of Proof.-The order of proof is a matter in the discretion of the court, and the declarations of a conspirator may be admitted against his co-conspirator, before proof of his connection with the conspiracy has been made; provided such proof is afterwards made.

ANDREWS, J., delivered the opinion of the court: The objection was taken, on the trial, that the plaintiff could not maintain the action, for the reason that he did not return, or offer to return, to the defendants the certificate of stock in the "Union Patent Right Company," issued to him on his subscription to the capital stock, within a reasonable time after the discovery of the alleged fraud. The validity of the objection depends on the character of the action. The complaint contains all the allegations essential in an action for deceit in inducing the plaintiff, by fraudulent representations, to purchase a worthless stock. The scienter was sufficiently averred. 25 N. Y. 244. The summons was for relief, and judgment was demanded for the damages sustained by the plaintiff.

It was not necessary to aver or prove that the plaintiff had offered to return the certificate in an action for the deceit. The action was ex delicto, and not upon contract. The form of the summons, and the demand for relief, in connection with the allegations of the fraud, characterize it. If the action had been brought upon the promise which the law implies against a fraudulent vendor of real or personal property, to restore the consideration paid by the vendee upon his electing to rescind the contract, then plaintiff would have been bound to aver and prove that, upon discovery of the fraud, he had returned, or offered to return, what he had received upon it. But an action for damages for the deceit is brought consistently with an affirmance of the contract of sale, and the judge properly held, on the trial, that the averment in the complaint, of an offer to return the certificate, might be disregarded as surplusage. Hubbell v. Meigs, 50 N. Y. 487.

The answer of the defendant Barber contains a counter-claim arising out of an alleged contract between the plaintiff and Barber, made subsequent to the sale of the stock. The copy of the pleadings, furnished the court by the plaintiff, contained a reply denying the alleged counter-claim. The defendant Barber thereupon offered to prove that in fact no reply had been served, as was claimed by the plaintiff. The judge refused to hear the proof, and ruled that the case should proceed upon the pleadings furnished, leaving the defendant to his remedy by motion after the trial.

This was the former practice in respect to the nisi prius record. Wood v. Bulkley, 13 Johns. 486. And it was, we think, within the discretion of the judge to refuse to enter into this collateral issue at that stage of the proceedings. Moreover, the facts upon which the alleged counter-claim arose were shown upon the trial, and they were insufficient to establish a counter-claim in the action.

In order to understand the force of objections taken

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