Wood v. Hope.

quently became, to the defendants, to hold as collateral against an indebtedness, real or assumed, due from the bank to the defendants, and the court say: "There was an implied agreement or contract on the part of the defendants, resulting from the nature of the original transaction between them and the bank, that the securities should be returned to the bank on the settlement and satisfaction of that account by the bank, which was recognized by the portion of the agreement between the plaintiff and the defendants particularly set forth in the complaint."

The agreement referred to in the concluding paragraph just cited, was an agreement entered into between the plaintiff after he was appointed receiver of the bank, by which the controversies existing between him, as such receiver, and the defendants, had been referred to referees for settlement.

The case at bar presents no such features, but bears a very close analogy to the case of Townsend v. Hendricks. Townsend had entered into an agreement with the defendant to buy a large quantity of copper, and to carry the same for him upon certain advances which the plaintiff agreed to make. The complaint alleged, that by false and fraudulent representations made by them as to the purchase of copper for his account, the plaintiff had been induced to deliver to the defendants certain railroad bonds, and to pay them certain sums of money.

The plaintiff alleged that the defendants had not purchased the copper as agreed, but that they had procured the advances by fraud, and with intent to cheat and deceive the plaintiff. The court held it to be a case of tort, and not of contract, and we think the case at bar comes strictly within the rule then laid down.

The order of reference should therefore be vacated

Palmer v. Foley.

and the cause restored to the regular calendar for trial, with costs of appeal.

REYNOLDS, J.-I concur in the foregoing. The complaint alleges a contract to show how the defendant came into possession of the securities; but the gist of the action is in the subsequent conversion, which is substantially alleged. It is therefore an action for

tort.

PALMER v. FOLEY.

N. Y. Superior Ct., Special Term; December, 1876.

REFERENCE.-UNDERTAKING ON INJUNCTION.

Where plaintiff in an injunction suit has leave to discontinue on payment of costs, defendant does not, by consenting to entry of an order discontinuing without costs, preclude himself from moving for a reference to ascertain the damages sustained by reason of the injunction.

The reference fixes the measure of damages on the undertaking, but not the liability.

Motion for reference to ascertain damages under an undertaking given on the issue of an injunction.

The action was by Francis A. Palmer against John A. Foley.

A. R. Dyett, for the motion.

William Hildreth Field, opposed.

VAN VORST, J.-By the order of Justice SEDGWICK, of December 17, 1873, leave was granted to the plaintiff, within ten days after the service of a supplemental answer, to enter an order dismissing the complaint in this action on payment of costs.

2

Palmer v. Foley.

On April 21, 1874, the plaintiff's attorney paid to the defendant's attorney $100 costs, and a stipulation was signed by the attorneys for the respective parties, that the action be discontinued without costs, and that an order to that effect be entered, and on the following day an order was made and entered at special term discontinuing the action.

Such an order must be regarded as a final disposition of the action, and with its termination the injunction was in effect dissolved.

The simply consenting by the defendant's attorneys to the entry of an order discontinuing the action, after the direction of the judge by his order of December previous allowing it, can hardly be urged as a valid reason why an order should not now be made directing an inquiry as to the items of the defendant's damages, sustained by occasion of the injunction.

The final liability of the sureties of the undertaking, after all, is to be determined by a direct proceeding upon it.

The inquiry as to damages only determines the amount of the defendant's damages, in the event that the parties to the undertaking are finally adjudged by action to be liable on the instrument. In Carpenter v. Wright (4 Barb. 655) it is said, "The reference will settle the measure of liability, if the parties to the undertaking shall be held to be liable, but not the fact of liability" (Leavitt v. Dabney, 2 Sweeny, 613).

The motion for a reference is granted.

Eypert v. Bolenius.

EYPERT v. BOLENIUS.

N. Y. Supreme Court, First Department; Chambers, and Special Term, February, 1877.

ARREST.

Borrowing money by falsely representing that certain wholly worthless bonds delivered to the lender as security for the loan, are good, is a willful injury to property such as a female is liable to arrest for.*

An affidavit to obtain an order of arrest of a woman, which alleged the forgery and utterance of bonds by her on which she obtained money by falsely representing them genuine, throws the burden of proof on the defendant, and, in the absence of any explanation, will be sufficient to sustain an order of arrest granted thereon.

Motion to vacate an order of arrest.

The motion was based upon the summons, order of arrest, and the affidavit upon which it was granted.

This action was brought by Catharine Expert against Nannette Bolenius, sued as Nannette Sperry, for the recovery of $1,045 alleged to have been fraudulently obtained by defendant from plaintiff.

The plaintiff's affidavit, on which the order of arrest was granted, after stating that the defendant, at the city of New York, on or about January 13, 1875, obtained from her $1,045 in money, alleged as follows: "At said time and place the said defendant exhibited to deponent two documents, the originals of which will be exhibited to the justice to whom application will be made in this action for an order of arrest of the defendant, and produced on the trial of this action; said two.

* The provision of the New Code of Civil Procedure is substan-tially the same on this point. § 553. See also Duncan v. Katen, 6. Hun, 1. VOL. II.-13

Eypert v. Bolenius.

documents purported to be and were then and there by the defendant represented and stated to be first mortgage bonds of the Leeds & Farmington Railroad Company, State of Maine, for the sum, one of one thousand dollars and the other of five hundred dollars, the principal payable July 1, A. D. 1896, and the interest payable January 1 and July 1 of each year, the payment of the principal and coupons of the said bonds guaranteed by the Maine Central Railroad Company in pnrsuance of a contract dated July 27, 1871, said guarantee being signed by James Cushing, treasurer of the said Maine Central Railroad Company.

"The said bonds were dated July 1, 1871, had attached to them coupons for the payment, in the $1,000 bond, of thirty dollars January 1 and July 1 of every year until the principal became due, and in the bond of $500, of fifteen dollars upon said dates.

"Said bonds purported to be signed by D. W. Clarke, treasurer, H. M. Payson, president, and Rensselaer Cram, George E. B. Jackson, and John W. Perkins, trustees.

"At said time and place said defendant stated that said bonds were genuine and of the value they purported to be, asked this plaintiff to loan to her said one thousand and forty-five dollars for the payment of a judgment then pressing upon her, and stated to deponent that if deponent would advance said money and extricate her from her trouble arising out of said judgment she would deposit with this deponent said bonds and coupons, and that deponent should collect said coupons as they became due, and then and there delivered to this defendant said bonds and coupons, and made, executed and delivered to this deponent an instrument of which the following is a copy, and the original of which this deponent is ready to produce:

"NEW YORK, January 31, 1875. "I hereby authorize C. Eypert to keep certain bonds