Page images

Dyckman agt. McDonald and Decker.

a claim plainly and clearly just, in the enforcement of which, he is put to extra trouble and expense, in consequence of the litigation of that claim by his antagonist, he is entitled to the benefit of the extra allowance.

Besides every litigated case is really more or less difficult; all who are familiar with trying causes at the circuit are aware of the contingencies and accidents upon which cases often turn, and that no case submitted to a jury can be said to be free from doubt before the verdict is rendered. To watch over and guide an important suit carefully and safely through the dangers and objections which a skilful opponent may interpose in its progress, is a responsible duty of counsel, and can not, in my judgment, be said to be entirely free from difficulty, however well founded the cause may be in its merits. Of course there are many degrees of difficulty, which require the exercise of the discretionary power in graduating the amount of per centage. But it is my practice uniformly to distinguish between mere inquests and litigated trials, by allowing some rate of per centage in the latter. I consider that the specific allowances given by section 307 are no more than an adequate compensation where there is no litigation at the trial, and that whenever the prevailing party has to employ counsel and attend a litigated trial he can not be indemnified for his expenses except by the allowance of a per centage.

If, therefore, this cause had been tried before me, I should, without hesitation, have made an allowance. But for the reasons above given the amount of that allowance would have depended upon circumstances which could only be learned at the time. This application should have been made at the circuit when the cause was tried; or, at all events, before the judge who held the circuit, unless some special reason for not doing so is shown. This, I think, was the object of the 86th rule, although somewhat ambiguously expressed by the use of the word “court” instead of “justice.”

I shall therefore deny the motion without costs and without prejudice to an application to be made before Justice McCoun.

6 How, 124-CONCURRED IN, 5 How. 263, 264.

Colvin agt. Bragden.


Colvin agt. BRAGDEN.

After demand by defendant, of a copy complaint under $ 130 of the Code, the

plaintiff should be allowed twenty days thereafter as a reasonable time for the service (See the case of Littlefield agt. Murin, 4 How. Pr. R. 306).

Montgomery Special Term, August 1850. This suit was commenced by summons unaccompanied by copy complaint. Defendant, in pursuance of section 130 of the Code, demanded a copy of the complaint. The plaintiff, twenty-two days after the demand, served a copy. But previous to this service (two days) defendant had prepared and served papers and notice of motion to dismiss the complaint under section 274 of the Code.

H. Adams, for Motion.
T. B. MITCHELL, Contra.

PAIGE, Justice.—This motion involves the question of what is a reasonable time for the service of complaint after defendant has served a demand for same in pursuance of section 130 of the Code. As this is an unsettled question the different judges of this court will be found in conflict until some definite rule is established with the approval of the court in bench. It is a matter of opinion merely as to what is a reasonable time. The Code and standing rules have omitted to define the time. My views are not exactly in accordance with the opinion of Mr. Justice Allen in the case of Littlefield agt. Murin (4 How. Pr. R. 306). I think twenty days would be a reasonable time for the service of the complaint; but as the court have established no definite rule as to what is a reasonable time, the plaintiff in this case should not be charged with costs. The motion is properly made; but as the plaintiff does not desire to avoid service of the complaint I will give him five days to serve copy complaint, to which defendant may have the usual time to answer; no costs to be allowed to either party.

5 How. 125-FOLLOWED, 7 How. 389, 393; 4 Lans. 184. Contra, 25 How, 182, 183, 189.



Catharine N. Forrest agt. Edwin Forrest.


The writ of ne exeat is not abolished by the code, as a provisional remedy. In

Song, 25 all essential particulars in its nature and effect and in the cases to which it is applicable, the ne exeat is unlike the arrest provided for in the Code ($ 178). It not being otherwise provided for in the Code, and not abolished by it in express terms, remains a provisional remedy which can not with propriety

be denied to suitors when asked for in a proper case. To authorize the issuing of a ne exeat, facts must be set out sufficiently, on

which the court (or judge) can repose its belief. Mere fears and apprehen

sions of the party are insufficient. Where the plaintiff expressed her fears that from circumstances which had come

to her knowledge, the defendant would depart this state; that he would sell his property here and remove his means from this state, and would forcibly abduct her from this state and remove her to Pennsylvania in order to subject her to the jurisdiction of the courts of that state, where it was alleged the defendant had instituted proceedings for a divorce from the plaintiff, on the ground of adultery-held, that the mere fears expressed by the plaintiff in the absence of any reasons given, were insufficient to authorize the issuing of a ne exeat.

New York General Term, November 1850, before EDMONDS, Presiding J.; Edwards and MITCHELL, Justices. The complaint in this suit was filed by the wife to obtain a separation from her husband on the ground of abandonment.

It appeared that the defendant had separated from his wife, allowing her $1500 a year for her support. That after the separation he had instituted proceedings in Pennsylvania to obtain a divorce from her on the ground of adultery. By the laws of that state it was necessary that the husband should have been a resident there for one year, and the complaint in this suit alleged that he was not at the commencement of the suit in Pennsylvania, and for a year preceding had not been a resident of that state, and that he pretended to be a resident there and had brought his suit there in order to deprive the plaintiff, who resided in this state, of the means of properly defending herself against the charges made against her.

The complaint also alleged that the defendant was the owner of a large property situated mostly in this state, and it expressed

Catharine N. Forrest agt. Edwin Forrest.

the fears of the plaintiff, from circumstances which had come to her knowledge, that the defendant would depart this state, that he would sell his property here and remove his means from this state, and would forcibly abduct her from this state and remove her to Pennsylvania in order to subject her to the jurisdiction of the courts of that state.

It therefore prayed an injunction, restraining the defendant from proceeding in his suit in Pennsylvania, on the ground that it was a fraud upon the plaintiff's right to be heard in the courts of this state; for a writ of supplicavit, commanding him not to molest her in her retreat in this state, and for a ne exeat restraining him from departing from the state, so that he might always be amenable to the courts of this state for any violation of the injunction. Those several writs were allowed by a judge at chambers and a motion was made at the special term to discharge the writ of ne exeat, which was granted.

The plaintiff appealed from that order.

C. O'Conor, for Plaintiff.
J. VAN BUREN, for Defendant.

EDMONDS, Presiding J.—The counsel on both sides agreed that the writ of ne exeat is abolished by the Code. I certainly did not so understand the law at the time that I allowed the writ in this case, or I should have hesitated in directing it to issue; for the distinction on which the counsel for the plaintiff now rests his claim to the writ did not then occur to my mind, nor was it then suggested to me.

Until the decision in this case at the special term, it had not occurred to me that the writ had been abolished, but on the other hand, I have several times allowed it since the Code was enacted, supposing it to be one of those provisional remedies which had been saved to suitors by sections 244 and 468.

I confess that the note of the commissioners had not met my eye, and I have acted upon the subject in ignorance of their intention and without the light which I might doubtless have derived from their remarks.

Catherine N. Forrest agt. Edwin Forrest.

And now that my attention is called to those remarks, I can not receive the avowal of their intention in recommending the law as conclusive evidence of the intention of the legislature in passing it, nor as any thing but very imperfect evidence of its real meaning.

It was frequently remarked by the former Court of Errors, by the Chancellor and the former Supreme Court, when the Notes of the Revisers, though happily distinguished by great learning and research, were quoted to them, as evidence of the meaning of the Revised Statutes, that they could not receive them as such, for the legislature might have meant one thing and the revisers another; and that the meaning of the statute was to be gathered rather from its language and the plain import of the words used than from any speculation as to the thoughts or intentions of those who proposed it.

It would doubtless tend to relieve our task of interpreting the Code of much of its burden, if we could be at liberty to refer in all instances to the views of the commissioners in reporting it; and though that might involve in all cases, the enquiry whether the part under consideration had been reported by them or interpolated by the legislature, and might sometimes require us to give a construction quite foreign to the plain import of the language used, yet it would materially lessen both the responsibility and the labor, which seem to be accumulating upon us.

But I know of no principle to authorize us to adopt such a course. The maxim, a verbis legis, non est recedendum, is as old as the common law itself, and nothing is better settled than the rule that the intention of the lawgiver is to be deduced from a view of the whole and every part of a statute, taken and compared together, and that the true meaning of a statute is properly to be sought from the body of the act itself. The current of authority is in favor of reading statutes according to the natural and most obvious import of the language per BRONSON, J. 20 Wend. 561, and where the words are not explicit, the intention of a statute is to be gathered as well from its context, as from the occasion and necessity of the law, from the mischief felt and the

[ocr errors]
« PreviousContinue »