Stephenson v. Hanson.

lots, my idea of their value is derived from the consideration stated in Cumming's deed to Back; I don't know whether the lots are improved or not, nor how far they are from Chicago; I have heard that their value was more than $1,300."

After a careful examination of Kolter's testimony as thus fully set forth, I cannot reconcile its many inconsistencies of statement, and fail to find either excuse or justification for the positive contradiction of facts, sworn to by the judgment debtor upon his first examination.

Kolter is an intelligent man, has had some schooling, his occupation calls for the possession of judgment and the exercise of shrewdness, it would naturally surround him by associations tending to increase, rather than diminish, those faculties, and certainly, in some degree, to impress him with a sense of responsibility for his acts; he knew what an undertaking was and the obligation it imposed, that on each occasion he had signed the undertaking, and upon one at least, the affidavit of justification; he claims he did not swear to the first, but supposes he did to the second, before the notary present; yet upon his direct examination, June 17, 1884, he swore "I did not read the undertakings when I signed them, and did not know what I was signing ;" and then upon his cross-examintion he swore "that it entered into his mind what he he was worth, at the time he signed, because he then knew he was signing undertakings, and that naturally enough he knew when he signed, he must be worth hundreds of dollars."

On the first examination it appears, that his occupation as night watchman and housekeeper commenced May 1884, and that he had not owned any property within a year except a half interest in two second hand billiard tables, for which he accepted $75, although he thought they could be sold for $175 apiece, notwith

Stephenson v. Hanson.

standing they had been advertised and no offer received for them.

On his second examination he testified that his occupation, as formerly sworn to, had existed for the past fourteen years, and that the said tables were worth $250 apiece.

The judgment debtor's explanation, of his contradictory statements, made at the two examinations, is insufficient, and under all the circumstances, incredible. I cannot believe that on his first examination he was puzzled, or thought that the examining counsel referred only to property in the city. When asked as to his real and personal property, he positively stated that he was not worth anything or possessed of real or personal property of any nature whatsoever, except what he expressly claimed was exempt from execution (household furniture); that he had been in no better position (June 9, 1884) for more than a year last past, nor within that time owned or been possessed of any other property except the billiard tables. It is probable that it occurred to the mind of the judgment debtor, that on the 19th of July, 1883, he had executed an undertaking, upon an order of arrest and had sworn to the affidavit of justification, annexed thereto, to the effect that he was worth $500 over and above all his debts and liabilities; whereupon, at the second examination, he admitted the ownership of three lots of ground in Illinois, conveyed, together with a gold watch, by one Back and wife to secure a loan, from him to them, of $100, February 23, 1878, and that the loan had never been paid; that he had seen Back a year ago, who told him that he could not pay and that he could keep the lots; he then further testified that he had never seen the lots; that he knew little or nothing about them and had heard that they were worth more than $1,300.

The most plausible inference that can be drawn

Stephenson v. Hanson.

from that statement, is that when the judgment debtor swore that he had no property, he believed the lots to be without any value; and in view of their abandonment, together with the gold watch, and of the entire absence of proof of any value, I shall consider their value at $100.

My judgment therefore, based upon all the facts before me, leads to the conclusion, that when the surety executed the undertaking, he was possessed of five dollars in the Bowery Savings Bank, an interest in two billiard tables of the value of $75, and three lots in Illinois of the value of $100, property amounting in all to $180, and that the affidavit of justification attached to the said undertaking, sworn to July 19, 1883, was false.

So long as the law of this state provides for arrest in civil proceedings, its requirements should be enforced with literal exactness. The defendant Hanson was entitled to two sufficient sureties, as provided in section 559, Code of Civil Procedure, and he would not have been arrested and held to bail, if Kolter had not acted as surety, and falsely sworn that he was worth the sum in which he justified.

It is no slight matter to deprive a person of his liberty, and cause, or aid in causing, his imprisonment without due process of law; yet this surety seems to have regarded his performance as a most trivial one, and frankly testifies, seemingly as an adequate apology, “that he went on the undertaking as a matter of friendship for Mr. Stephenson and received not one dollar for it."

It is to be regretted that he is not alone in his flimsy view of the law, and that he has so large a following of others who regard the act of becoming a surety, as simply perfunctory, and not one of the necessary safeguards against the possible, and too fre

VOL. VI.-4

Stephenson v. Hanson.

quent, abuses and perversions, of the provisional remedy of arrest in civil actions.

The surety was guilty of perjury, which is [] a contempt of court (Stackhouse v. French, 1 Bing. 365).

Section 2285, Code of Civil Procedure, empowers the court to punish that offense, by imposing a fine,

sufficient to indemnify the defendant for the loss [] and injury he has sustained, through the surety's misconduct, and by imprisoning him for six months, and until the fine is paid.

The power to punish for contempt is a branch of the common law, adopted and sanctioned by the [] constitution of this state (Yates v. Lansing, 9 Johns. 416; Eagan v. Lynch, 3 N. Y. Civ. Pro.

236).

The language of the undertaking fixes the maturity of the surety's obligation, upon the date of the [*] order (May 6, 1884), finally vacating the arrest; the fact that the plaintiff has appealed from the judgment in the original action is therefore not material.

It is urged that the surety did not willfully and knowingly mislead the court, and intentionally swear falsely; if so, I will extend to him the benefit of the doubt, and will not inflict the punishment of six months' imprisonment, as for a criminal contempt.

The power and duty of the court is to redress the wrong of the injured party; it can make no difference to him, whether the contempt was designedly or negligently committed, his loss is the same in either

event.

The actual loss occasioned by the wrongful act of the surety Kolter is the amount of the judgment recovered against him by Hanson, in the action upon the undertaking, to wit: $281.65 with interest, and

Laude v. Smith.

$50, allowed as reasonable counsel fee for the legal services required in the proceedings.

The surety is fined that amount and his commitment is directed until the fine is paid.

LAUDE v. SMITH, IMPLEADED, ETC.

SUPREME COURT, ONEIDA COUNTY, SPECIAL TERM, JULY, 1883.

$$ 450, 1206.

Action for slander against married woman—. Making husband party to.

In an action against a married woman for slander, her husband cannot properly be made a party defendant

Sections 450 and 1206 of the Code of Civil Procedure, construed. (Decided July 2, 1883.)

Demurrer to complaint.

The facts are sufficiently stated in the opinion.

J. Mathews, for the demurrer.

S. J. Barrows, opposed.

MERWIN, J.-The defendants are husband and wife. The action is to recover damages for slander uttered by the defendant Louisa Smith, of and concerning the plaintiff. It is not alleged to have been uttered in the presence or by the direction of the husband Thomas Smith. The only reason for making him a party exists in the allegation that he is the husband. The defendant Thomas Smith demurs to the