Wilmerding and others agt. Moon.

at liberty to put in their answer without verification. They were not bound under such circumstances by the verification at all. The plaintiff's attorney was therefore in error in returning the answer and entering his judgment as though none had been put in.

Judgment set aside with ten dollars costs of motion.

SUPERIOR COURT.

WILMERDING AND OTHERS agt. MooN impleaded with LEVY.

A defendant who has been arrested under an order in an action upon contract, and has not been bailed, may move to vacate the order at any time, before he has been charged in execution.

At Chambers, December 8th, 1852. Before OAKLEY, Chief Justice; DUER, CAMPBELL, BOSWORTH, and EMMET, J. J. concurred. The defendant Moon moved to vacate the order under which he had been arrested, upon affidavits controverting those upon which the order had been granted. The action was upon contract, and it appeared that the plaintiffs had obtained a judgment and had issued an execution against the property of the defendant, and these facts were relied on as a bar to the motion. The application was also resisted upon the merits.

OAKLEY, Chief Justice.-I have consulted my brethren upon the preliminary objection raised upon the argument, and we are all of opinion that I am bound to entertain this motion and decide it upon its merits, as disclosed by the affidavits. The fact upon which the plaintiffs' counsel relied, in our judgment, are no bar to the application.

The only limitation of time which the Code imposes, is that which is necessarily implied in section 204, namely, that the motion to vacate an order of arrest must be made before the justification of bail, and with a single exception that I shall hereafter state, we think, it follows that so long as bail may be put in, the right to make the motion is unimpaired.

Wilmerding and others agt. Moon.

It is true that in Lewis agt. Truesdell, (3 Sand. 706,) in which we held that the motion was too late, the bail had not justified, but their undertaking had become absolute by the omission of the plaintiff to except, and the ground of our decision was that it is the perfecting of bail—whether by their justification or the absence of an exception is immaterial—that creates the estoppel. Although not within the letter, the case was plainly within the spirit and intention of the Code.

The perfecting of bail is an admission upon record that the order of arrest was justly made, but we cannot say that mere delay of the application to vacate the order is a conclusive admission of the same fact. An objection founded merely upon delay is in all cases addressed to the discretion of the court, and it would be a palpable abuse of that discretion to allow it to prevail, where the question is, whether a defendant shall be discharged from an unjust imprisonment.

Nor is the case at all altered by the facts that the plaintiff has obtained judgment and has issued execution against the property of the defendant. Where the right to arrest a defendant depends upon the nature of the action, and the facts con- . stituting the right are set forth in the complaint,-as in actions for false imprisonment, malicious prosecution, breach of promise of marriage, &c.,-as the judgment establishes the truth of the facts it concludes the defendant from subsequently denying them, but when the order of arrest, as in this case, is founded solely upon extrinsic facts, not constituting the cause of action, as the judgment is no evidence of the truth of the facts, it leaves them just as open to explanation and denial as if it had never been obtained. The judgment is evidence that a debt is due to the plaintiff, but not that the defendant had been guilty of any fraud in contracting the debt, or endeavoring to evade its payment.

Whether I could entertain this motion if the defendant were now in confinement under an execution against his person, is not a question that can now be properly considered, but our decision is that an order of arrest founded upon extrinsic facts, may be vacated upon a proper application, at any time before

Loveland agt. Hosmer.

the defendant if not bailed, has been charged in execution. I have examined with attention the affidavits on both sides, and am satisfied that the defendant ought to be discharged. Order of arrest vacated without costs.

SUPREME COURT.

LOVELAND agt. HOSMER.

Where in the complaint the charge of libel set out "This scoundrel was indicted at San Francisco, February last, for fraud; arrested by C. A. Hosmer," with appropriate inuendos. And the answer set up a justification that, the plaintiff had been indicted and arrested for a conspiracy to cheat and defraud, held, that such a justification did not reach the charge of being a "scoundrel."

Monroe Special Term, January, 1853. Demurrer to a portion of the answer.

L. FARRAR, for Plaintiff.

E. A. RAYMOND, for Defendant.

WELLES, Justice.-The complaint states two distinct and independent causes of action. They are both for written slander. The answer contains two separate independent defences. The first amounts in substance to a general denial of the complaint, and is not in question here. The second is demurred to, and for the purposes of the demurrer, must be regarded in the same light as if it was the only answer put in. It is intended as a justification, and by not denying admits the publication of the libel. It professes to be an answer to the whole complaint, and must therefore, in order to be sustained, amount to a justification in respect to both counts of the complaint.. The libel set out in the first count, stript of the inuendos, is in the following words:

"This scoundrel was indicted at San Francisco, February last, for fraud; arrested by C. A. Hosmer." Appropriate innuendos are introduced, giving point to, and explaining the words of the charge.

Bantes agt. Brady and others.

The words of the libel not only charge the plaintiff with being indicted for fraud, and having been arrested therefor, but impute to him the traits of character of a scoundrel. The answer under consideration goes no further than to justify the part of the charge that the defendant had been indicted and arrested, &c. This is no answer to the other and graver part of the charge, to wit: that the plaintiff is a scoundrel.

Webster defines "scoundrel" as follows: "A mean worthless fellow; a rascal; a low, petty villain; a man without honor or virtue."

The libel designates the plaintiff as such a person, and it is no justification to say that he has been indicted and arrested for a conspiracy to cheat and defraud.

There must be judgment for the plaintiff on the demurrer, with leave to the defendant to amend his second answer on payment of costs.

SUPREME COURT.

BANTES agt. Brady and others.

Where the facts of a case, which involve among others, the existence of a copartnership, is referred, and the referee reports that there is sufficient evidence to establish the co-partnership, the party in whose favor the report is made cannot file the report without notice, and enter an order dissolving the copartnership and direct an accounting. Such an order is not a judgment under the Code.

Notice should be given of the time and place of presenting the report to the court, and the nature of the order asked for.

Dutchess Special Term, May, 1853. The suit was commenced for the purpose of dissolving a copartnership and settling its affairs. Some of the defendants denied the existence of the copartnership and took issue upon certain other facts. The cause was referred to a referee to hear and decide the issues of fact and report thereon. The parties met before the referee and put in their testimony touching the existence of the part

Bantes agt. Brady and others.

nership. The defendants' counsel then moved for a dismissal of the complaint on the ground that no partnership was proved. This motion having been argued at length was taken into consideration and afterwards decided by the referee in favor of the plaintiff. The referee made a report upon that question and stated that the partnership was proved and an account ought to be taken.

The plaintiff filed the report, and without notice, entered an order dissolving the copartnership and directing an account to be taken. Defendants now move to set aside the report and order as irregular.

W. S. ROWLAND, for Defendants.

JOHN GRAHAM, for Plaintiff.

BARCULO, Justice.-This is an equitable suit, to which the rules applicable to common law proceedings cannot be conveniently applied. The cause was improperly referred generally, instead of being referred to enquire into a specific fact; but the parties, in some degree, remedied the mistake by adopting the natural order of things in taking their proof, and having the question of the existence of the copartnership first determined. The referee was undoubtedly correct in reporting upon the issue thus submitted to him, before proceeding to further evidence, whether the parties consented to that course or not; for the absurdity of attempting to take an account of a copartnership business-when its very existence and terms and extent are unascertained-is apparent from the bare statement of the

case.

But I think the plaintiff was irregular in taking his order of course. He is mistaken in supposing that it is a judgment under the Code, which may be thus entered upon the report of a referee. This order is not a judgment in any sense of that term. The proper practice required the plaintiff, on obtaining the report, to give notice to his adversary of the time and place of presenting the report to the court, and the nature of the order which would then be moved for. The court could then understandingly order an accounting and appoint a referee for that purpose. VOL. VIII.

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