N. Y. Superior Court.-The Union Mutual Ins. Com. agt. G. N. Osgend & B. Alden. In this case the plaintiff was to be saved from damages, costs and charge imposed upon, or demandable of him. That was the act to be done. Its non-performance was a breach of the bond, and the legal liability of the sheriff, or in other words, the amount of the damages, costs and charges imposed upon and demandable of him, is the measure of damages. Damages, costs and charges have been incontrovertibly imposed, and are incontrovertibly demandable to the amount of the judgments recovered, in "issues prosecuted" against the present plaintiff.

Many of the cases already cited, are full to the point, that the sheriff is equally entitled to recover the necessary costs of a defence, made in good faith, as the costs awarded against him, and forming part of the judgments.

Under all the circumstances of this case, we think the sheriff is entitled to a judgment on the verdict.

PRACTICE CASES.

N. Y. Superior Court.

[October Special Term, 1853.]

Before Mr. Justice BOSWORTH,

THE UNION MUTUAL INSURANCE COMPANY, against GEORGE N. OsGEND AND B. ALDEN.

DEMURRER TO COMPLAINT-AVERMENT.

It is not a necessary averment in the complaint that plaintiffs are a body corporate. As a general rule, it is unnecessary to aver anything in the complaint that is not required to be proved.

The plaintiffs move for judgment on a demurrer to their complaint on account of the frivolousness of the demurrer.

The causes assigned for demurrer are, that the plaintiffs have not legal capacity to sue, because-First: That the complaint does not show whether the plaintiffs are a voluntary Association or Corporation. Second: That the complaint does not set forth the title of any act incorporating the plaintiffs.

Also that it does not state facts sufficient to constitute a cause of action, i. e., that it does not state that the plaintiffs had any power or authority to receive, hold or own the promissory note counted upon.

There is no averment that the plaintiffs are a body corporate.

Wm. M. Evarts, for plaintiff.

for defendant.

BOSWORTH, J.-There are two cases in Harrison's reports, and two in Blackford's, adjudging the precise point; that it is unnecessary to aver that the plaintiffs are a corporation. 3 Harrison, Rep., 105, id., 158, 4 Black, R. 267, id. 146.

N. Y. Superior Court.-The People ex relat. Davis agt. Sturtevant.

The following cases in this State favor the same proposition; 1 J. C. 132, Bank of the U. S. v. Haskins 2 Cow., 770; Bank of Utica v. Smalley, and cases cited in the latter in the opinion of the Court, 4 Sand. S. C. R., 675. The Holyoke Bank vs. Haskins.

It is a general rule that it is unnecessary to aver anything in the complaint that is not required to be proved.

By 2 R. S. 458, § 3, it is provided that a Corporation plaintiff, created by the laws of this State, need not prove its existence on the trial of the cause, unless the defendant shall have pleaded in abatement or in bar that the plaintiffs are not a Corporation.

If the defendants deem such to be the fact, they can set up in their answer that the plaintiffs are not a Corporation. 2 R. S., 458, § 3.

It does not appear on the face of the complaint that the plaintiff is not a Corporation. It does not therefore appear that the plaintiff has not legal capacity to sue; unless that appears, a demurrer cannot be sustained which is based on that objection. Code, § 144, Sub. 2.

The name in which the suit is brought, being an appropriate Corporate name, the plaintiff will be intended for all the purposes of the suit to be a Corporation unless the contrary be averred by plea. 3 Harrison R. 108; 2 R. S., 458, § 3; Laws of 1845, chap. 345.

The plaintiffs must have judgment on the demurrer, but with liberty to defendants on serving on plaintiffs' attorney, within five days from the service of this order, an affidavit of merits to withdraw demurrer and answer in twenty days on payment of the costs of the demurrer. Approved by all the judges on consultation.

N. X. Superior Court.

[February General Term, 1854.]

Before ALL THE JUDGES.

THE PEOPLE EX RELAT. DAVIS against STURTevant.

COSTS UNDER THE CODE-APPEALS IN SPECIAL PROCEEDINGS.

Notwithstanding the limitation implied in the title " Of Civil Actions" prefixed to Part II. of the Code, those provisions of that part of the Code which related to costs upon appeals, are applicable to appeals in special proceedings, as well as to those taken in civil actions, strictly so called.

The points raised on this appeal sufficiently appear in the opinion of the Court.

D. D. Field opened the motion; Hilton contra.

DUER, J.-The Court of Appeals, in affirming the final judgment or order of this Court, in the proceeding against the defendant as for a contempt, has awarded to the relators the costs of the appeal, and this judgment, as the proceedings have been remitted to this Court, it has become our duty to execute, and consequently to interpret. The question which we are called upon to determine is, whether the costs which the defendant is required to pay are those prescribed by the Code, or those which are taxable under the Revised Statutes.

Section 307 of the Code, subd. 7, declares that the costs to be allowed

N. Y. Superior Court.-The People ex relat. Davis agt. Sturtevant.

on an appeal to the Court of Appeals, shall be $25 before argument, and $50 for argument; and the Clerk in adjusting the costs has followed this direction. Mr. Justice Bosworth has affirmed the decision of the Clerk, but it has been earnestly contended that the decision is erroneous, as inconsistent not only with the general design, but with the express provisions of the Code.

I shall proceed to state in a condensed form the argument that was relied on to convince us of the error which we are urged to correct.

The jurisdiction which the Court of Appeals has exercisd in this case, it is admitted, is derived from the Code, but we are assured that it is a mistake to suppose that the Code regulates the costs on every appeal which it sanctions. The jurisdiction is founded on subd. 3 in § 11, which gives an appeal " from a final order affecting a substantial right made in a special proceeding;" but the provision in § 307, which defines the costs to be allowed on an appeal, relates solely, it is said, to appeals in civil actions, and is not applicable at all to an appeal in a special proceeding. § 11 is in part I, of the Code, which, following its title, treats exclusively of "The Courts of Justice and their Jurisdiction." But § 207, is in Part II., which treats as exclusively "of Civil Actions," meaning those actions and those only, which the Code defines and regulates. It is true that in this second part appeals are embraced and treated of under the general head of "Civil Actions," but in the provisions relating to them, an appeal is considered not as a new and separate action, but only as a further proceeding in the original action in which the order of judgment appealed from was rendered. So that throughout, appeals in civil actions, and those actions authorized by the Code, are alone intended. It was further observed in confirmation of these views, that proceedings as for a contempt against a party in a civil action are governed entirely by the provisions of Chap. 8, Tit. 13, Part II. of the Revised Statutes, and are therefore proceedings which the Legislature has declared that the Code was not designed, and shall not be construed to affect, (Code § 471,) and it seemed to be thought a necessary conclusion that an appeal from a final order in such proceedings must be regarded as embraced in the exception.

This conclusion, however, so far from deeming it necessary, we do not hesitate to reject. It is true, that Title 13 of chap. 8, (2 R. S., 532,) -which treats of "Proceedings as for Contempt to Enforce Civil Remedies" is unrepealed in all its provisions; but these provisions relate wholly to proceedings in the Court in which the contempt is sought to be punished, and contain not a single word in relation to the mode in which the final judgment or order of the Court is to be reviewed by a higher tribunal. They have, therefore, no bearing whatever on the question we are now considering; since neither their construction, nor their application, can be varied in the slightest degree by holding that an appeal from such an order is subject in all respects to the provisions of the Code. The whole argument, therefore, on the part of the defendant, rests upon the truth of the allegation that the provision in the second part of the Code, in relation to appeals in their just construction, must be limited to appeals in civil actions, since, that the proceeding

N. Y. Superior Court.-The People ex relat. Davis agt. Sturtevant.

against the defendant is not such an action, the Court of Appeals, in refusing to dismiss the appeal, has in effect determined.

The second part of the Code is entitled "Of Civil Actions" and that this title was meant to refer only to those actions which the Code defines and regulates, we readily admit, nor is it necessary to deny that, under this general title, appeals in such actions are properly comprehended.

The title of a law, however, it not unfrequently happens, is much narrower than its actual contents, and in such cases it has certainly never been supposed that an express provision must be altered or expunged, in order that the contents may be made to correspond with the title. The history of legislation shows, that of all the arguments which are used to fix the construction of a statute, that derived from its title is the weakest and most deceptive. In rare cases, the title has been invoked to aid, but in none has it been permitted to control the interpretation; on the contrary, when a plain discrepancy exists, it is not merely a reasonable, but a necessary inference that the title is defective or erroneous.

It happens in the present case, that the Code itself furnishes the clearest evidence that the title of "civil actions" upon which the learned counsel for the defendant laid the stress of his argument, is essentially defective, and so this Court upon full consideration has determined.

The object of Section 8, in the preliminary title to the Code, is to announce that division of the entire act which its framers had deemed it proper to adopt; and it declares that this division is into two parts, the first of which relates to "courts of justice and their jurisdiction," and the second not only to civil actions commenced after the 1st day of July, 1848, (that is commenced under the Code,) but also, with the exception of the last four titles, to appeals to the Court of Appeals, and other courts an addition which, if appeals are properly comprehended under the general head of civil actions, was plainly unnecessary, unless appeals in other cases than in actions under the Code were meant to be embraced. That they were meant to be embraced, and that the latter words of the section were introduced in order to embrace them, this Court, in Kanouse v. Martin, (2 Sandford, 739,) has expressly decided, and in so deciding has held, that the title prefixed to the second part of the Code, does not cover all the subjects which its provisions embrace, and therefore, as defective and partial, is manifestly erroneous. argument founded upon this title, we are therefore compelled to disregard.

An

The action in Kanouse v. Martin was commenced previous to the adoption of the Code, but the appeal to the Court of Appeals from the judg ment of this court was subsequent.

The appeal had been dismissed with costs to the respondent, and the question to be determined was exactly the same as in the case now before us, namely, by what law the costs of the appeal were to be regulated. It was contended on behalf of the appellant, that the provisions in the court relative to costs on an appeal, were applicable only to appeals in civil actions commenced after the Code, but the learned Judge who heard the motion decided that the general words in section eight extended to all appeals subsequent to the Code, without reference to the time of

N. Y. Superior Court.-The People ex relat. Davis agt. Sturtevant.

the commencement of the suit in which the appeal was taken, and that to hold otherwise would be a plain violation of the statute. It is true that this decision in its form was that of a single Juge, but it was made with a full concurrence of two of his associates, and, as I personally know, was the result of their joint deliberation. It has, therefore, all the authority of a decision at General Term.

It may be said, however, that the decision in Kanouse v. Martin, so far as its authority is binding, only proves that costs on an appeal must be adjusted under the Code, when the appeal is from a judgment in a civil action, and does not prove that the same costs must be allowed when the appeal, as in the case before us, is from a final order in a special proceeding. Hence, to meet the objection, a further examination of the provisions of the Code seems to be necessary.

I proceed then to the title of the Code, which treats especially and exclusively of appeals. This is title 11, of the second part of the Code. It is headed, "Of Appeals in Civil Actions," and if the provisions that follow correspond with this title, the position for which the counsel has contended, notwithstanding our decision in Kanouse v. Martin, is established, since we readily admit that it is only on those appeals which the Code regulates, that the costs which the Code has specified can be allowed. It happens again, however, unfortunately for the argument that has been addressed to us, that it is met and refuted by a manifest variance between the title of the law and its actual contents, since the former implies a limitation which the provisions that follow decisively reject. It is true that the law (treating this particular division of the Code as a statute) relates to appeals in civil actions, but it relates just as certainly to appeals in those special statutory proceedings to which the name of section cannot properly be given. The 2d chapter treats of appeals to the Court of Appeals, and its first section (333), short but most significant, is in these few words:

"§ 333. An appeal may be taken to the Court of Appeals in the cases mentioned in section 11."

And the question at once suggests itself, for what purpose was this section inserted? Not assuredly for the purpose of defining the jurisdiction of the Court of Appeals, since this jurisdiction had already been given and defined by the section which is referred to; nor, if it is susceptible of any other construction, are we at liberty to regard it as an idle repetition of a previous enactment. We think that the plain and sole object of the section is to indicate the cases by a reference, without enumeration, to which the subsequent provisions of the chapter, and all general provisions throughout the Code in relation to appeals to the Court of Appeals, shall be construed to apply, and that the construction and effect of every section containing such a provision are consequently the same as if in each an appeal from a final order in a special proceeding were separately mentioned. Thus the section which immediately follows prescribes the written undertaking which must be executed on the part of the appellant to render an appeal effectual, and sections 327 and 328, in the preceding chapter, the notice which is necessary to be served and the duties of the Clerk in transmitting the papers to the