N. Y. Sup. Court.-Jerome Terry and others agst. Francis Rubel.

also the discovery of the evidence contained in books and documents of the party, which was but a branch of a bill of discovery, and substituted the subpoena duces tecum for it. I have found but one serious objection upon principle to such a conclusion; that is, the rule apparently prevailing, that production of a document by a witness, may be compelled without swearing him in the cause. (Cowen's, Phillips' Notes, Ed. 1849, vol. 4, p. 808.) If this is the rule as applicable to mere witnesses, it ought not to be treated as extending to parties examined under the Code, or the fundamental principle of discovery is violated.

But there is so much authority to sustain the position that the provisions of the Revised Statutes on this head are not superseded, as to forbid the conclusion I have suggested. A reference to the leading cases will be useful upon this and connected points.

The following were cases of applications, with the view to prepare a pleading. Gilston vs. Marshall, (6 Howard, P. R. 388;) the petition was to compel a discovery of instruments in writing, to enable the defendant to answer the complaint. The party stated, that by the discovery he would be able to prove that the note had been paid by a transfer of property as mentioned. He did not shew that it was necessary to enable him to answer. It is true the learned judge speaks of the Code as not applying to a case of such an application, relying upon the words "containing evidence, relating to, &c." But a construction by no means very broad, would make this phrase imply whatever manifested the truth of the case.

Stanton vs. The Delaware Mutual Ins. Co., (2 Sandf. S. C. Rep. 662,) was a case of petition by a defendant, to enable him to answer. It was held, that the petitioner did not show why or how was it necessary that the discovery should be given for that purpose. It was also laid down, that such an application was to be made under the Revised Statutes, not the Code. That they were concurrent. The latter had not superseded the former. See also Moore vs. Pentz, (2 Sandf. S. C. Rep. 667.)

Brevoort vs. Warner, (8 Howard, 321,) was the case of a petition to deliver copies of entries in books, to enable defendant to perfect his bill of particulars of a set-off. The plaintiff admitted possession of the books. The order was, that he deliver sworn copies, or allow the defendant to make such copies.

In this case Justice Hand went at length into an examination of the general subject; he holds, that section 388 extends only to inspection, (which implies production,) and a copy; and that he thought a mere discovery, properly so called, as to books, papers, and documents, should be in no other way than an examination of the party.

The case of Lovell vs. Clark, (7 Howard, 158,) was a case under the third division of the rule of 1847.

The documents called for were an assignment and order of court, on which the cause of the plaintiff rested, and appear to have been called for after answer. The application was by petition, conforming

N. Y. Sup. Court.-Jerome Terry and others agst. Francis Rubel.

substantially to the rules; and the order was for inspection and copy, or permission to take a copy.

The following are cases under the 4th clause of the rule cases, to discover evidence strictly.

Hoyt vs. The Am. Ex. Bank, (8 Howard, P. R. 29.) The previous proceedings in this case, which do not appear in the report, were these:

On the 10th of January, 1853, a petition was presented at Special Term, for the discovery of books and papers mentioned therein, and an order was made that the defendants, within twenty days, give sworn copies of all entries in any books, &c., in reference to, or showing where, under what circumstances, for what purpose or consideration, and by and from what person or persons, the Post Note of the Morris Canal and Banking Co., and the seventy-three Bonds of the State of Indiana, mentioned in the petition, were severally transferred, or came into the possession of the defendants; such copies to be sworn to by the cashier.

The petition set forth that the defendants had put in their answers, and stated the portions in such answer, which were contradictory to the allegations of the complaint, and then stated that the defendants had books containing evidence relating to the merits of the action, and to the facts aforesaid, a schedule of which was thereto annexed; that the same would prove the allegations of the complaint-that the advice of counsel had been taken, &c., and that he could not safely proceed to trial without the discovery, &c.

The discovery being considered defective, the proceedings were taken, which are reported in 8 Howard, 29. The court laid down certain general rules-that the Code had not superseded the Revised Statutes; the systems were consistent-the remedy for discovery proper is under the Revised Statutes-the rules there prescribed, and the analogies of Chancery must be pursued. If the party answer, that he has not the books or papers, or that there are any entries in such books or papers, relating to the subject, there is au end of the application. He cannot be subject to a fishing examination; a referee could not be appointed to see if the answer was sufficient, and the discovery full. An order to shew cause was the proper mode.

Follett vs. Weed, (1 Code Rep. 65,) and Dole vs. Tellows, (1 Code Rep. N. S. 146,) were also cases of such an application, and Justice Sill expressed his clear opinion, that the proceedings should be by petition pursuing the course of the Statute, and the rules which governed the cases of preparing a pleading. An affidavit was not

the

proper course.

Exchange Bank vs. Monteith, (2 Code Rep. 148,) was a proceeding by petition to prepare for trial, and Justice Harris was of opinion that the section of the Code was meant to cover every case, and an affidavit would be sufficient.

The system provided in the Statute, as applied to discovery proper, appears full, definite and commensurate with every case. The petition stands as a substitute for the bill of discovery of books and papers.

N. Y. Sup. Court.-Jerome Terry and others agst. Francis Rubel.

The order to show cause enables the party by affidavit (perhaps an answer) to state every ground on which the discovery may be resisted or modified. The Court may mould the proceedings by general rules; and especially there is the valuable provision for our guidance, that the Court shall be governed by the principles and practice of the Court of Chancery in compelling discovery, except as to costs, which are left in its discretion.

The only deficiency in the system is, that the remedy may not extend to proceedings against the person or property of the party. But the power to non-suit, or strike out a plea or notice, or debar a particular defence, can scarcely fail to be sufficient.

The result of my own examination is, that the 388th Section of the Code contains the power which authorizes and governs the Court in relation to the three cases contained in the three first clauses of the rule of 1847, viz., cases of the call for and inspection of documents already known in the cause.

That the power to order an inspection given in the 388th Section includes a power to direct a deposit when it is necessary, though such power will be rarely exercised, sworn copies being generally sufficient.

That the present rules of the Supreme Court prescribe the course of practice which must be pursued in the specified cases of a call for documents to frame a pleading; and that the same practice can, with entire safety, be pursued in cases falling within the third clause of the rule of 1847.

That the mode of proceeding to obtain a discovery of evidence in such cases as were covered by the 4th snbdivision of the rule of 1847, is either by a subpœna duces tecum, provided the party is actually examined as a witness, or by a petition under the Revised Statutes. In the latter case the party has the opportunity of answering by affidavit; in the former orally. But the evidence contained in his books and documents should not be compelled through the medium of a subpoena, without his examination.

In applying these principles to the present case, I am of opinion that the discovery should be given as to the particular book in which the defendant made memoranda of his contracts as to bands of music. I think it may extend to contracts with others as well as the entries relating to the particular engagement with the plaintiff. A regular or general custom as to the hour may be of importance as to testimony. The order will be, that the defendant, within five days from service of a copy of this order, deliver to the plaintiff's attorney a sworn copy of all and every book in which he made entries relating to the furnishing of bands of music, and especially in which he entered any memoranda of any such a contract with the plaintiffs; or at his election, that he deposit such book or books with his own attorney; and that the plaintiffs and their attorney have liberty to inspect and copy the same, such copy or copies to be attested by the oath of any one making the same; and in default of a compliance with this order, application may be made on affidavit, and notice that the answer of the defendant be stricken out, and for judgment. The defendant to pay $10 costs of motion.

N. Y. Sup. Court.-S. J. Neustadt & D. Barnett agst. Flora Joel & others.

N. . Superior Court.

(General Term-December, 1853.)

Before DUER, CAMPBELL, and BOSWORTH, J. J.

SAMUEL J. NEUSTADT and DAVID BARNETT against FLORA JOEL, impleaded with others.

APPEAL FROM SPECIAL TERM.-FRAUDULENT ASSIGNMENT. RIGHT OF CREDITORS BEFORE JUDGMENT TO SET ASIDE SIDE SAME UNDER THE PROVISIONS OF CODE.

A general creditor cannot maintain an action to set aside an assignment as fraudulent and void as against creditors. The rule that such an action can only be brought by a judg ment creditor, has not been altered by the Code.

The complaint stated that Alfred and Louis Joel were copartners and dealers in jewelry, under the name of A. Joel & Co.; that at various times previous to the 1st January, 1853, the plaintiffs (doing business under the name of Neustadt & Barnett) sold the said A. Joel & Co. merchandize to the amount of $249175, and that the credit had expired on the sales, and the amount was due and unpaid; that the said A. Joel & Co. had recently come to the United States, and established themselves in business on an extensive scale, and had contracted large debts by making purchases of the plaintiffs and others; that they, said A. Joel & Co., had recently made an assignment of their stock in trade as copartners (and whether other property, the plaintiffs had no knowledge or information to form a belief) to the defendant Flora Joel; that Flora Joel was the sister of the said Alfred and Louis, and a young woman without any means, and obtained a livlihood by the manual labor of embroidering shoes, &c.; that the assignment had been made ostensibly to secure a pretended indebtedness of Alfred and Louis of 5 or $6000 to one Mrs. Levy, resident in England; that the debt was fictitious, and set up by the assignors in collusion with the assignee, and that the assignment was colorable only, and made to defraud creditors, and that the assignee was a party to the fraud; that the said Alfred, Louis and Flora, had commenced to sell at auction the property pretended to be assigned; that the auctioneer, H. H. Leeds, had received and held a portion of the proceeds of such property as had been sold; that great and irreparable injury would be done to the plaintiffs if the Joels should dispose of said property, and. the

N. Y. Sup. Court.-S. J. Neustadt & D. Barnett agst. Flora Joel & others. pretended assignment should be allowed to stand and be carried into execution, or the auctioneer be allowed to pay over the funds received by him, and unless an injunction issue. The complaint then prayed for judgment for the debt with interest against A. & L. Joel, and costs of the suit, an injunction against all the defendants, and that the assignment should be declared fraudulent, null and void, and that a receiver be appointed.

The defendant, Flora Joel, demurred to this complaint; and showed, among other causes, that the plaintiffs were creditors at large, and had no lien by judgment, or execution, or otherwise, on the property assigned; that they had not exhausted their remedies at law in execution, and did not show that they had any judgment and execution issued and returned unsatisfied, and were in no position to impeach or disturb any disposition that A. Joel & Co. might have made of their property.

John Graham, for plaintiffs.

J. B. Herbert Judah, for defendant, Flora Joel.

By the Court.-DUER, J.-The plaintiff is a general creditor, who seeks to set aside an assignment made to the defendant, Flora Joel, as fraudulent and void as against creditors, and, it is plain that, as against her, he is not entitled to the relief, or any part of the relief, which he demands, unless his right as a creditor to impeach the assignment is apparent upon the face of the complaint. It is needless to cite authorities to prove that before the code no such action could be maintained by a creditor, without averring that he had obtained a judgment against the debtor making the assignment, and that upon this judgment an execution had been issued, and returned unsatisfied; nor do we understand it to be denied that such was the settled law. The whole argument upon the part of the plaintiff rests upon the assertion, that the law in this respect has been altered by the code, and that by force of the alteration every creditor has now the same right to have a fraudulent assignment set aside for his benefit as was formerly possessed by judgment creditors alone.

This very important alteration of the law, as hitherto administered, is alleged to have been effected by § 219 of the code; but upon examing the provisions of that section, it seems to us manifest that they have no bearing whatever upon the question of the right of a general creditor to maintain an action like the present.

The sole object of the section is to enumerate and define the cases in which a temporary injunction may be granted, but all of these are cases in which it appears by the complaint that the plaintiff is entitled to the relief demanded against the defendant, to restrain whose acts or proceedings the injunction was sought. The section doubtless enlarges the powers of the court to grant injunctions, but does not enlarge the rights of the plaintiff, in any case, to maintain his action, but leaves the