Kelly v. Baker.

to prevent the failure of our concern; but, being disappointed in my last hope, I could not bring myself to bear the disgrace of a failure; I became disheartened and in despair, so I concluded to abandon all to you, and try to make a living by seeking my fortune in California, or some other place; and some future day I hope to return with sufficient means to pay every debt we owe. Please tell all that we owe that they shall be paid every dollar, with interest. I hope you may get some one to advance means enough to carry on the business prosperously. I have lost, by loaning money on stocks, notes, &c., some $20,000 and upwards I felt as if I did not care to live, after having everything that I had worked hard to accumulate stripped from me. Hoping that you may get along better without me, I subscribe myself

Yours, &c.,

D. F. BAKER.

It will be perceived that Mr. Baker "concluded to abandon all" to his copartner, and "to try to make a living by seeking his fortune in California, or some other place." This language imports two operations of the mind-one investing his copartner with the whole of the copartnership effects, and the other a determination to seek a livelihood in a distant place, and to yield all control over the partnership property. The partner, thus invested by the surrender of his associate, had power to dispose of the interest of that associate for the best general interest of both, and having made an assignment for the benefit of creditors, without preference, no abuse of the power has taken place, and the assignment should not be disturbed. See Kemp v. Carnley, 3 Duer, 1.

Where a power is conferred upon one of several partners to assign the copartnership assets for the benefit of creditors, or such authority can be fairly and justly implied from facts and circumstances, or either, and it be employed as designed, it will not be abrogated by courts of equity. There are, perhaps, in this case, circumstances which contribute much to show an intent on the part of Baker to grant his associate full power and

Goodall v. Demarest.

authority to make a general distribution of the partnership effects; but I deem the letter referred to sufficient to uphold the assignment, and decline to allow the injunction.

Motion denied.

WILLIAM GOODALL v. WILLIAM J. DEMAREST.

Upon a proper affidavit, an order for a second examination of a judgment debtor will be granted ex parte.

Where a judgment debtor has been examined under supplementary proceedings, another examination will not be ordered unless the affidavit upon which it is applied for, mentions the previous proceeding, and shows that the debtor has since acquired property, or states circumstances leading to such a belief.

An order for a second examination was obtained upon an affidavit deficient in these respects; but on a motion to vacate it the omission was supplied, and the order was retained, limiting the inquiry, however, under it, to matters subsequent to the examination already had.

AT CHAMBERS, September 25, 1858.

Motion to vacate an order for the examination of the defendant, a judgment debtor, under proceedings supplementary to execution. The affidavits on which the motion was grounded, showed that the defendant had been once fully examined under a previous order granted upon the same judgment, and no property discovered; and alleged that the last order had been ob tained for the purposes of vexation and annoyance. In opposi tion to the motion, an affidavit was produced stating circumstances which would naturally lead to the belief that the defendant was now possessed of property, and denying any intent to vex and annoy, further than a proper examination of a debtor might be supposed to have such an effect. The affidavit upon which the second order was obtained, was in form the usual printed blank, filled up, and in it no reference was made to the previous examination, nor to the fact that the defendant had subsequently acquired property.

John M. Martin, for the motion.

Goodall v. Demarest.

John B. Holmes and William McKeag, opposed.

BRADY, J.-If there has been an examination of the judgment debtor, and the creditor seeks a further examination, the affidavit on which the order is asked should state the previous proceeding, and the fact that the defendant had subsequently acquired some property, or circumstances from which such fact should be presumed. A multiplicity of examinations will not be tolerated without good reasons therefor, but, at the same time, no judgment creditor will be prevented from bona fide efforts in these proceedings to obtain satisfaction of his judgment. The affidavit on which the second order was obtained herein, is deficient in the respects named, but is not deficient in any jurisdictional fact. The omission is, therefore, one of practice, which may be supplied by amendment. The affidavit read in opposition to the motion to discharge the order, discloses circumstances which justify, in my judgment, the belief that the debtor has acquired property since the last examination, and the order will be retained, therefore, fortified by the affidavit mentioned. The question of the defendant's costs on this motion, is reserved until the conclusion of the examination to take place. And further, the defendant's examination must be limited to the time when the previous one was concluded. I do not concur in the proposition that no subsequent order should be granted except upon notice to the defendant. The creditor proceeds at his peril, and the costs allowed by the statute must be his indemnity if he be improperly required to appear. A hearing upon notice would necessarily involve the question of property, in respect to which the right to examine is given by statute, subject to the rules of practice relating thereto, and if decided in favor of the applicant, would subject the judge conducting the proceeding to another consideration of the same question upon the examina tion when finished.

Ordered accordingly.

Moses v. Walker.

ISAAC MOSES v. GIDEON L. WALKER.

In an action by a mortgagee of chattels to recover the value of a part of the mortgaged property, wrongfully taken from the possession of the mortgagor, it is not necessary to allege in the complaint that the mortgage was duly filed in the county where the property was situated.

The provisions of the Revised Statutes respecting the filing of chattel mortgages, are for the protection of the creditors of the mortgagor, and purchasers in good faith, and not for the benefit of wrongdoers.

In an action to recover for the wrongful taking of property, it is not necessary to allege in the complaint, or prove at the trial, that a demand of it was made before suit brought.

The demand for relief, attached to a complaint, affords no ground for a demurrer.

AT SPECIAL TERM, November 2, 1858.

Demurrer to a complaint. The nature of the action and the character of the pleadings sufficiently appear in the opinion...

Malcolm Campbell, for the plaintiff.

Gideon L. Walker, defendant, in person.

HILTON, J.-The plaintiff alleges in his complaint, that he is mortgagee of certain household furniture in 25th street in this city, by virtue of a chattel mortgage executed, and on May 13th, 1858, duly filed in the register's office; that the amount secured by the mortgage is due and unpaid, and he is entitled to the possession of the property described in it; that part of such property the defendant wrongfully took from the possession of the mortgagor while it was in his custody, and "has refused and still refuses to deliver the same or any part thereof" to the plaintiff's damage, &c.

To a complaint containing substantially these averments, the defendant demurs: 1st. That it does not state facts sufficient to constitute a cause of action; and 2d. That several causes of action have been improperly united.

Moses v. Walker.

Upon the argument it was insisted, under the first ground of demurrer, that the complaint was defective in not showing that the mortgage was filed in the county where the mortgagor resided at the time of its execution, (2 R. S. 136, § 9), and in not alleging a demand and refusal before suit brought.

The answer to this argument is, that the provisions of the Revised Statutes are not intended for the benefit of parties acquiring property wrongfully, and to which they have no claim or right; but to protect creditors of the mortgagor and subsequent purchasers, or mortgagees in good faith,-as to whom the mort gage is declared to be void unless filed in the manner prescribed. Meech v. Patchin, 4 Kernan, 71.

As to the other objection, there is no force whatever in it. The defendant, by his demurrer, admits that he wrongfully took this property from the mortgagor's possession; that the plaintiff is the owner of it by virtue of the chattel mortgage given to him, now due and unpaid; and that he, the defendant, has refused, and "still refuses" to deliver it, to the plaintiff's damage, &c. In a case of this character, if a demand was necessary before suit brought, these allegations would seem to be sufficient to entitle the plaintiff to maintain his action. But it is well settled that, in an action against a wrongdoer for a wrongful taking of property, no demand need be proved, and therefore it was unnecessary here to allege it. Pringle v. Phillips, 5 Sand. S. C. 157; Zachrisson v. Ahman, 2 Sand. S. C. 68; Stillman v. Squire, 1 Denio, 327.

To maintain the second ground of demurrer, the defendant rests entirely upon the prayer of the complaint, and claims that it shows two causes of action to have been improperly united. The answer to this view is, that the complaint shows but a single cause of action, and the plaintiff has added to it a demand of the relief to which he supposes himself entitled, (Code, § 142, sub. 3), and although he has asked for much more than the law would award him, yet that cannot affect the defendant, nor afford him a ground for demurrer. Andrews v. Schaffer, 12 How. Pr. R. 441. It shows neither a right in the plaintiff nor a wrong on