Lyons v. Townsend.

his own home, up town, where he changed his clothes and took his breakfast, and, leisurely, about noon, went down to the post-office, and, entering it the back way, he left the dispatches for the other papers on a table, without informing any one what they contained. They were found on that table late on Sunday by one of the clerks in the post-office, and distributed to the respective papers early on Monday morning.

In the meantime, and on Sunday afternoon, the Herald published all the news in an extra, and was the only paper that did contain them, until the issue of Monday.

On learning these facts, the defendant's paper commented with severity on the conduct of the pilot, without mentioning his name, and for those comments this action was brought.

Edmonds, J., in charging the jury, said there were three points for their consideration:

First. Which pilot was meant by the article in the Express? That one which remained on board the ship and piloted her into the harbor, or him who, taking the dispatches, had immediately proceeded to the land? That was purely a question of fact for the jury to determine.

Second. Was the charge a privileged one? The rule is, that wherever a person speaks in the performance of any duty, legal or moral, public or private, or in assertion of his own rights, or to vindicate and protect his own interest, no action will lie against him, unless express malice be proved, however untrue what is said may be. In this case there had been no attempt to prove express malice, and if the jury believed that the defendant's language was used in the assertion of a right, or to vindicate or protect his interest, or in the performance of a duty, the plaintiff could not recover.

Third. If the jury did not conclude that the charge was privileged, then they would inquire if the defendant had not justified it by proving it true. The charge was, that, in violation of his own promise and of the confidence reposed in him by the master of the ship, he had not delivered all the dispatches immediately on his arrival in town, and it was for the

In the matter of Francisco Marty.

jury to find out, if they could, why he could not have delivered all the dispatches as early as he had delivered one of them.

There was a verdict for the defendant.

SUPREME COURT-SPECIAL TERM.

FEBRUARY, 1848.

Before EDMONDS, Justice.

In the matter of FRANCISCO MARTY, a non-resident debtor.

An attachment, under the Revised Statutes, against a non-resident debtor may be sued out by a creditor, who is also a non-resident of this State.

THE debtor and Altillis Valtellina, the prosecuting creditor, were both residents of Havana, and there made a contract with each other, and three others, to establish an opera in the United States, and entered upon the undertaking which finally failed. Valtellina remained in the United States, came to the city of New York, where he resided several months, and took the preliminary steps to become naturalized. After doing so, he sued out, before one of the judges of the Common Pleas of New York, an attachment against Marty as a non-resident, he never having been in the United States, on a claim for damages alleged to have arisen from a violation by Marty of this contract of partnership. On affidavit that Valtellina was only temporarily in the United States, and not a permanent resident in New York, an application was made to the judge who issued the attachment for a supersedeas, which he refused,

In the matter of Francisco Marty.

on the ground that he had no authority therefor. Thereupon a certiorari was sued out, removing the proceedings into this court.

A. D. Logan, for the debtor, on the coming in of the return to the certiorari, moved to discharge the attachment, on the ground, among other things, that, both parties being non-residents and the debt being contracted abroad, there was no authority under the statute to issue an attachment.

Emmet, contra.

Edmonds, J.: The case of Fitzgerald (2 Caines, 318) caused some doubts whether a non-resident creditor could avail himself of the benefit of our laws authorizing an attachment against a non-resident debtor. But that case has been overruled. In Robbins v. Cooper (6 J. C. R. 190), Chancellor KENT holds the contrary. In Ex parte Caldwell (5 Cow. 293), this court say that the twentieth section of the statute must have been overlooked by the court in Fitzgerald's case, and they add that an attachment in favor of a foreign creditor, who had followed his debtor to this country, was expressly authorized by our statute. (1 R. L. 157.) But in Ex parte Schroeder (6 Cow. 603), the court held, that a creditor abroad, not resident nor domiciled here, but only transiently in New York, could not sue out an attachment against his debtor, being a non-resident, on a contract made abroad; and they express a doubt whether even a resident creditor could proceed by attachment here upon a contract made abroad.

All these cases were before the Revised Statute, which made something of an alteration in the law in regard to the matter, which makes the distinction between the cases in 5 Cowen and 6 Cowen. The former statute required that the person proceeded against, whether absconding or non-resident debtor, should be "indebted within this State." Therefore, in 6 Cowen, the attachment, though in favor of a non-resident creditor, was set aside, because the debtor was not and never

In the matter of Francisco Marty.

had been in this State, and, therefore, he could not be said to be indebted in this State. But in 5 Cowen, the creditor was also a non-resident, and the debt had also been contracted abroad, but the debtor was concealed in this State, and, therefore, was indebted in this State. But our Revised Statutes have omitted the requirement that the debtor should be indebted in this State, and the revisors, in their note to that section which gives the attachment to the enumerated creditors, say it is intended to conform to 6 Cowen, 603, "and to express the meaning of the legislature distinctly, as it seems to be understood in 5 Cowen, 293, and the cases there cited.” One of the cases cited is that in 6 J. C. R. Hence, the statute (1 R. S. 3, § 3), says, "such application may be made by a creditor resident of this State or out of it," which provision, the revisors say, is section 20 of 1 R. L. 157. That section 20 is, that any creditor residing out of this State shall be deemed a creditor within the act, and this court, in 5 Cowen, say, that that section expressly authorizes a proceeding in favor of a non-resident creditor on a debt contracted abroad.

It seems to me, then, plainly to be the intention of the stat ute to authorize a non-resident creditor to sue out an attachment, so that if Valtellina is, as was alleged, only temporarily here and not domiciled in this State, he may institute these proceedings.

This disposes of the two first objections made in behalf of the debtor; the other one relates to the form of his application. But the statute only requires that he shall state the amount of his claim and the nature of it, so far as to disclose whether it arises upon a contract, or upon a judgment or decree rendered within this State. Those things are set out in this application, and, therefore, it is sufficient.

There being, then, according to the view which I take of the case, no valid objection to these proceedings, they must be remitted to the officer who issued the warrant.

[NOTE. This case is reported in 2 B. 436. It was appealed to the General Term, where the decision was affirmed. (3 B. 229.) But the judge who delivered the opinion in the General Term dissents from the view here taken

Allen v. Blunt.

of the right of the foreign creditor to sue out a foreign attachment, and puts the affirmance on other grounds.

Whence it would seem, that the question whether a foreign creditor can sue out an attachment is still unsettled, and I cannot find any case that settles it.

In Staples v. Fairchild (3 N. Y. 43), the Court of Appeals express a different opinion, but they found that upon the language of sub. 2 of § 1 of the statute, and entirely overlook the provision of § 3, which says the "application may be made by any creditor resident within this State or out of it." In Castellain v. Jones (5 id. 168), the same court intimate the same view, but do not decide it, because the applicant was a resident and the question did not arise.

In Renard v. Hargous (13 id. 289), the court affirmed a ruling of the Superior Court, that where the applicants were partners it was no objection that one of them was a non-resident.

Thus the question now (1868) stands, and it remains to be seen whether the views expressed in the principal case and which carries into the Revised Statutes the provisions of § 20 of 1 R. L. 157, as the revisors say was intended, shall be ultimately sustained.]

NEW YORK-SPECIAL -TERM.

Before EDMONDS, Justice.

ALLEN V. BLUNT.

A motion to vacate an award of arbitrators can be made only in the court named in the submission, and for the causes specified in the statute. Any other ground for setting aside an award can be available only in a distinct action brought for that purpose.

Such action was always an equitable one, and the amalgamation of common law and equity powers in the same court does not alter the principle.

THIS was a motion, at Special Term, to set aside an award, in which it was insisted that the union of the two courts, Supreme and Chancery, had, in fact, abolished the remedy by bill in equity, which formerly prevailed.

58-vol. 2