Kain v. Postley. Edmonds, J.: There is nothing in the first point. For the rule, that an instrument executed by an attorney is valid only when executed in the name of the principal, applies only to those cases where the instrument is to be a formal one, under seal, where the principal is both in form and substance the party, and where it is necessary to be his deed in order to pass the title or bind him as covenantor. Where it is not necessary that the instrument should be in writing to give it validity, as where an agent does an act in pais, though in his own name, or makes a commercial, or other contract, not under seal, without subscribing the name of his principal, the principal may be bound, especially if it appear in any part of the instrument that it was intended to be executed by him merely as an agent, and in that character only. (Evans v. Wells, 22 Wend. 335; Townsend v. Corning, 23 id. 440.) The agreement involved in this suit would have been valid though not reduced to writing, and, throughout, the parties to it described themselves as agents, and contracted solely in that character. The manner of its execution does not therefore render it invalid. The other objection, however, is more formidable. Mrs. Postley had no power to appoint an attorney, and her appointment was absolutely void, not voidable merely. She was not bound by the agreement, and all consideration for the plaintiff's entering into it failed. So that the whole agreement must necessarily be held to be invalid. This does not arise from the fact that the instrument was, on one part, the contract of an infant, for that would be voidable, only, and could not be avoided, even by the infant during minority, much less by the other party; but it arises from the fact that she acted, if at all, only by her attorney, and her appointment of such was absolutely void. This is an exception to the general rule as to the acts of an infant, and does not, as I can perceive, rest on a very good foundation; but it is too well settled to be disregarded. (Bool v. Mix, 17 Wend. 131; Fonda v. Van Horne, 15 id. 635; Stafford v. Roof, 9 Cow. 628.) Squire v. Flynn. There must therefore be judgment for plaintiff on the demurrer, with leave to amend on payment of costs. SUPREME COURT-SPECIAL TERM. FEBRUARY 25, 1850. Before EDMONDS, Justice. SQUIRE V. FLYNN. Arrest on final process when no order had been obtained THIS was an action on a contract, in which no order to arrest was obtained. After judgment for the plaintiff, and an execution against the goods, etc., was returned unsatisfied, an execution against the person of the defendant was issued, and he was arrested and committed to jail in Queens county. Busteed, on an affidavit that no order to arrest the defendant had been obtained, moved for his discharge from impris onment. Sayre, for plaintiff, read affidavits showing that the defendant had fraudulently contracted the debt, and might have been arrested under sections 179 and 181 of the Code, and claimed that the execution against the person was properly issued under section 288. Edmonds, Ch. J.: Section 288 of the Code of Procedure would seem to be broad enough to justify the defendant's Squire v. Flynn. arrest on final process, even though no order to arrest had been obtained. The language of that section is, that "if the action be one in which the defendant might have been arrested (not has been), as provided in sections 179 and 181, an execution against the person, etc., may be issued ;" and if the plaintiff's construction be correct, then, without ever obtaining from a judge an order to arrest the defendant, the attorney for a plaintiff may of course issue an execution against the person, and have the defendant imprisoned, provided that on a motion to discharge him, he can show that the case is one in which he might have arrested the defendant at the commencement of the action. I apprehend this cannot be the true construction, for it would be virtually repealing the act to abolish imprisonment for debt, so far as final process is concerned. A defendant can in no case on contract be arrested without a judge's order, so that the question whether the defendant is liable to be arrested is first to be passed upon by a judge. That order may be obtained at any time during the progress of a suit before judgment—§ 183—and an undertaking must be given to protect the debtor against an abuse of the power to arrest. So that in a case like the present, a debtor cannot be arrested unless he has fraudulently contracted the debt, and a judge's order has been obtained, and an undertaking has been given. The mere existence of the fact that the debt has been fraudulently contracted, is not enough to warrant an arrest. That fact must be accompanied by a judge's order, and an undertaking. All three of these requisites must unite to justify an arrest. This is what section 288 means when it says, "might have been arrested as provided in sections 179 and 181." Any other construction would virtually destroy all the safeguards which the statute has thrown around the invasion of personal liberty, and would render utterly useless the provision that the question of liability to arrest shall be first passed upon by a judical officer. The motion to discharge the defendant must therefore be Cruger v. Douglass. granted, but as the mistake has been produced by the very equivocal language of the statute, it must be on condition that he stipulate not to sue for false imprisonment. Motion granted on terms. SUPREME COURT-GENERAL TERM. FEBRUARY, 1850. Before EDMONDS, P. Justice, and EDWARDS, and MITCHELL, Justices. CRUGER V. DOUGLASS. The provision of the Code which allows an appeal from an order at Special Term, where the order "involves the merits," means all orders in the progress of a cause, except such as relate merely to matters resting in the discretion of the Court, or to mere matters of practice or form of proceeding. An application for the necessary process to enforce the judgment of the court involves the merits within this construction of the Code. THE plaintiff filed his bill of complaint in the late Court of Chancery to enforce the execution of an appointment made by virtue of a post-nuptial settlement, or to revoke the settlement itself. The cause was heard before the late vice chancellor of the First Circuit, and afterward in this court on appeal from his decision. The General Term on such appeal affirmed the decree of the vice chancellor, and among other things decreed that the defendants as trustees should forthwith out of the trust funds in their hands, pay to the plaintiff the sum of $5,000, but awarded no execution therefor. Cruger v. Douglass. The plaintiff, on an affidavit showing a demand of that sum of the defendants, and their refusal to pay it, moved at Special Term for a precept under § 4 of 2 R. S. 535, to commit them until payment. Such precept was awarded, and from the order awarding it, an appeal was taken to the General Term under section 7 of the act supplementary to the Code. Cruger-F. B. Cutting, with him-now moved to dismiss the appeal for irregularity, and because the order appealed from did not involve the merits of the action, or any part thereof. C. O'Conor, contra. Edmonds, P.J.: The grounds on which the motion to dismiss the appeal were rested, were all disposed of on the argument, except, two 1. That the appeal had been irregularly taken, and — 2. That the order was of such a nature that it was not the subject of an appeal. The irregularity is said to consist in this-that proceedings were stayed while such security was not given as to justify a stay of proceedings, but only an undertaking in $250 as security for costs. The want of such security will not vitiate the appeal. It can only operate to vacate the order to stay proceedings. That might have been done at Chambers, and it is not proper to come here in the first instance to get relief from that order. The order may be irregular and void, but that does not make the appeal so, and the objection of irregularity must be overruled. The main question is whether the order can be appealed from at all. That depends solely on the question whether it involves the merits of the suit, or any part of it. (Supplement to Code, section 7.) It is not easy to give to this expression a definite meaning, whereby a fixed and certain rule can be established. It will 18-vol. 2. |