Pomeroy and Leonard, agt. Hindmarsh and White.

they, the said H. & W., would make an assignment of their property and effects, and that they were not able to pay their debts, and further that the said H. & W. refused to give this deponent as agent and attorney of the said P. & L. any security for the payment of this said debt, and deponent further says that he verily believes the said H. & W. have sufficient goods and chattels, choses in action and evidences of debt, to pay each and every of their creditors if they were disposed so to do."

L. D. BROCK, Contra.

HAND, Justice. By the last clause of section 219 of the Code, "where during the pendency of the action it shall appear by affidavit that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors, at temporary injunction may be granted to restrain such removal or disposition." This injunction must have been granted under this provision. The affidavit, however, states that the attorney believes that the assignment will render the judgment ineffectual. But to bring it within that part of the section, the act, I think, must be done during the litigation, and in violation of the plaintiffs' rights respecting the subject of the action (Hovey v. McCrea, 4 How. Pr. R. 31). No facts tending to show this, are stated, nor could well be in a suit on a note. The affidavit is wholly insufficient on this last clause. It does not show that any action was pending; nor does it show that the defendants threatened to remove or dispose of their property with intent to defraud their creditors; nor that they were about to do so. It discloses no fact except that one of the defendants stated to the plaintiffs' attorney that they were unable to pay their debts and would assign their property; and they would not secure the claim of the plaintiffs in preference to others. It further adds, that the defendants have enough to pay their debts if they were disposed to do so.

The commencement of a suit (if one had been commenced) gave the plaintiffs no lien upon the property of the defendants, much less were the defendants guilty of fraud within the meaning of this statute, because they would not pay the plaintiffs on demand before the suit, and in preference to every other creditor. Such a construction would make a debtor guilty of fraud, if he

The Stockbridge Iron Company agt. Mellen and others.

So

did not pay a debt on demand, to the exclusion of all others far from this being a conclusion of law, a debtor in failing circumstances, is permitted to prefer one bona fide creditor over another. Again, a statute which suspends all powers of a party over all his property, pendente lite, and operates as an attachment, should be strictly complied with. Facts and circumstances should be shown so that the court can see that a fraud has been threatened or is about to be perpetrated. This must be made to "appear" to the court, and by the proper proof, and not by mere suspicion or belief. Injunctions are not issued upon mere information and belief. Such was the old rule (and see Roome vs. Webb, 3 How. Pr. R. 328).

The motion must be granted with costs.

SUPREME COURT.

THE STOCKBRIDGE IRON COMPANY agt. Mellen and others. A complaint containing six counts, or causes of action (similar to a declaration under the former practice, against a common carrier), held, to be a pleading inconsistent with the requirements of the Code (§142). All but one count stricken out as redundant.

Albany Special Term, March 1851. Motion to set aside complaint, or to strike out redundant matter. The action is brought to recover the value of a quantity of iron delivered by the plaintiffs to the defendants to be carried from Hudson to Cold Spring. The complaint contains six different counts, or causes of action, stated, substantially, according to the forms of counts in a declaration at common law, in an action against common carriers. The defendants move either to set aside the complaint altogether, or to strike out all but one of the counts.

E. P. CowLES, for Defendants.

K. MILLER, for Plaintiffs.

HARRIS, Justice.-The complaint in this action is in form and effect a declaration at common law: one, too, of the most objectionable description. To sustain such a pleading, would be to hold that any party is at liberty to choose between common law pleadings, and the pleadings prescribed by the Code. If a plead

Davis and others agt. Schermerhorn.

ing like this, is sanctioned by the Code, then, indeed, it is a misnomer to call that act," an act to simplify and abridge plead ings. The complaint is in no respect conformable to the requirements of the second subdivision of the 142d section of the Code. Unless, therefore, the plaintiffs shall, within twenty days amend their complaint so as to make it conform to those requirements, all the causes of action, or counts, stated therein, except the first, are to be stricken out as redundant, or irrelevant. The defendants are also entitled to the costs of this motion.

SUPREME COURT.

DAVIS, HOLMES AND DAVIS JR. agt. SCHERMERHORN.

One of several plaintiffs having beer discharged under the two-third act, and assigned his property to a coplaintiff, after suit commenced, issue joined, cause referred and some testimony taken, plaintiffs were allowed to amend by striking out the name of the plaintiff discharged, and to show in the complaint the assignment to the coplaintiff.

Albany Special Term, August 1850. It was shown in this case, by affidavit, that since this suit was commenced, Holines, one of the plaintiffs, had been discharged under the two-third act as an insolvent debtor, and under the order of the judge, assigned all his property to another plaintiff, Charles M. Davis, assignee, duly appointed for that purpose; and that the property assigned was not sufficient to pay his debts. On these facts the plaintiffs moved to strike out the name of Holmes as a plaintiff, and to amend the declaration so as to show the assignment to Davis. It appeared issue had been joined and the cause referred to a referee, before whom some testimony had been taken.

C. STEVENS, for Plaintiffs.

J. K. PORTER, for Defendant.

PARKER, Justice.-Ordered that such amendment be made, and the name of Holmes be struck out, on paying $10 costs of this motion, and on giving security, by a bond to be approved by the county judge of Rensselaer county, to pay, in case the defendant recover judgment in this action, that portion of the defendant's costs which had accrued previous to the time of making this motion,

5 How. 441-AFFIRMED, 12 How. 107; 9 N. Y. 142. See 5 How. 446.

Porter agt. Williams and Clark.

SUPREME COURT.

PORTER agt. WILLIAMS AND CLARk.

Where proceedings supplementary to execution are instituted under the Code, the order for the debtor's examination under the 292d section gives the judgment creditor the same lien upon the debtor's equitable assets which he acquired under the former practice by the commencement of a suit by creditor's bill. And the orders authorized by the 297th and 298th sections, themselves, and without an assignment by the debtor, divest his title in the personal property and vest it in the receiver.

W., on the 5th of January, assigned to C. all his property for the benefit of creditors, with power to sell either for cash or credit. This assignment is void (2 Comst. 365). On the 28th of March an order was made in proceedings supplementary to execution against W. and on the 4th of April, P. was appointed a receiver of W.'s property. On the 30th of March, W. executed a further instrument to C. declaring that it was intended that C. should sell for cash only.

Held, that P., the plaintiff had acquired a lien on the 28th of March, which rendered ineffectual the instrument of the 30th of March, even if otherwise of any effect.

Held, also that W. could not at any time after the execution of the assignment to C. revoke the authority therein contained to sell upon credit, and that the instrument subsequently executed was of no avail to render the assignment valid.

Demurrer. The action was brought by the plaintiff, as receiver to set aside an assignment executed by the defendant Williams to the defendant Clark. The assignment was made on the 5th of January 1850. It embraces all the property and effects of the assignor, except such articles as are by law exempt from levy and sale. It is made for the benefit of creditors, giving preferences. The assignee is authorized, by the terms of the assignment, to "sell and dispose of the property assigned, either at public or private sale, to such person or persons, at such price or prices, and on such terms and conditions, and either for cash or credit, as in his judgment may appear best, and most for the interest of the parties concerned; and to convert the same into money, and to collect the debts, &c." On the 27th of February 1850, the Dutchess County Iron Company recovered a judgment against Williams, for $508-32, upon a debt contracted before the

Porter agt. Williams and Clark.

assignment. Upon which judgment an execution was issued on the 28th of February, to the sheriff of the proper c.unty, and returned unsatisfied. On the 28th of March 1850, an order was made by one of the justices of the Supreme Court, pursuant to the provisions of the Code relating to proceedings supplementary to execution, requiring the judgment debtor to appear and answer before a referee, appointed for that purpose, on the 30th of the same month. On the 4th of April following, the same judge made an order appointing the plaintiff a receiver of the property of the judgment debtor, and also, by order, forbade a transfer or other disposition of the property of the judgment debtor, not exempt from execution, or any interference therewith. On the 30th of March 1850, Williams executed and delivered to Clark an instrument, whereby, after reciting that doubts had arisen whether by the assignment of the 5th of January, the assignee had the power to sell the property assigned on credit, and that it was intended to have it sold for cash only, the assignee was authorized and directed to sell the property for cash only. No assignment was ever executed by the judgment debtor to the receiver. It is admitted that immediately upon the execution of the assignment the assignee took possession of the assigned property; that he had in fact sold only for cash, and that he had applied a part of the moneys received by him as assignee to the payment of the preferred debts. On the 11th of April 1850, another execution was issued upon the judgment to the sheriff of Columbia, and Samuel Bryan, who owed the judgment debtor $191.50, at the time of the assignment, paid the debt to the sheriff to apply upon the execution. The assignee claims that he is entitled to receive this debt under the assignment. The clause was heard upon the pleadings. Some of the facts above stated do not appear in the pleading, but were admitted by counsel upon the argument.

E. P. COWLES, for Plaintiff.

M. PECHTEL, for Defendants.

HARRIS, Justice. A preliminary objection has been made to the right of the plaintiff to maintain this action. It is insisted