Farmer v. Rogers.

Judgment reversed, and cause remanded for further proceedings, on the authority of People v. Wallace, (9 Cal., 31.)

FARMER v. ROGERS et al.

The eighth section of the Act concerning Courts of Justice, which provides that when a "judgment or order is reversed or modified, this Court may make complete restitution of all property and rights lost by the erroneous judgment or order," does not cover the case of a judgment for the recovery of money. It applies only to those cases where the judgment operates upon specific property in such a manner that its title is not changed, as by directing the possession of real estate, or the delivery of documents, or of particular personal property in the hands of defendant, and the like. Where an execution on a judgment for the recovery of money is not stayed by the undertaking on appeal required by statute for that purpose, a sale may be made on the execution, and the rights of purchasers are in no respect affected by the subsequent reversal of the judgment.

MOTION to set aside proceedings subsequent to judgment recovered in the Court below.

In September, 1855, the plaintiff recovered judgment in the District Court of the Eighth Judicial District, County of Siskiyou, against the defendants, for $964, and in October following, issued execution thereon, under which a sale was made of a building in Yreka, to Tomlinson and Wood, for $2300. In January, 1857, this Court, on appeal, reversed the judgment, and upon the filing of the remittitur in the Court below, judgment was there rendered in favor of the defendants, who now move to set aside all the proceedings in the case subsequent to the plaintiff's judgment.

H. H. Hartley for the motion.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

The motion must be denied. The eighth section of the Act concerning Courts of Justice, upon which the defendants appear to rely, and which provides that when a "judgment or order is reversed or modified, this Court may make complete restitution of all property and rights lost by the erroneous judgment or order," does not cover the present case. It applies only to those cases where the judgment operates upon specific property in such a manner that its title is not changed-as by directing the possession of real estate, or the delivery of documents, or of particular personal property in the hands of the defendant, and the like. In the present case, the judgment of the plaintiff was for the re

People v. Way.

covery of money, and as its execution was not stayed by giving the undertaking on appeal required by statute for that purpose, the sale was properly made, and the rights of the purchasers are in no respect affected by the subsequent reversal of the judg

ment.

Motion denied.

PEOPLE v. WAY.

It is not necessary to a conviction, under an indictment for forging an order for the delivery of goods, that the order should be signed in the name of a party having goods in the possession of the drawee.

APPEAL from the Court of Sessions of the County of Napa.

H. Edgerton and R. D. Hopkins for Appellant.

Attorney-General for Respondent.

TERRY, C. J., delivered the opinion of the Court-BALDWIN, J., and FIELD, J., concurring.

Defendant was indicted and convicted of the crime of uttering a forged instrument, in writing, for the delivery of goods with intent to defraud, etc. On the trial, the charge was clearly established, but it appeared that the person to whom the forged instrument was addressed, was not acquainted with the supposed drawer; that he had no account with him, nor any goods in his possession belonging to him.

Counsel now insist that upon this evidence no conviction could be had, as, to constitute an order for the delivery of goods, it must be drawn by a party having goods in the possession of the drawee; and in support of this proposition they cite the case of Regina v. Roberts, referred to in 2 Russell, 522. The decision. in that case turned upon the technical meaning of the word "order," which was the term used in the indictment as descriptive of the paper forged, and is not applicable to the case at bar.

The paper set out in the indictment is a request for the delivery of goods, and under our statute the forging or uttering of such a paper is a felony. It is not described in the indictment as an order, and if it were, we apprehend no advantage of the mistake in its description could be taken, as the paper itself is set out, and the defective description could not in any manner prejudice the rights of defendant.

Judgment affirmed.

Freeborn v. Glazer.

FREEBORN, GOODWIN et al. v. GLAZER.

A count, in the ordinary form of counts in indebitatus assumpsit, for goods sold and delivered, and money paid and expended, is sufficient under our system of practice. If the allegations are deemed too general, the defendant can apply for and obtain an order upon the plaintiff to furnish a bill of particulars.

A notice of motion to discharge a writ of attachment, "because the said writ was improperly issued," is insufficient. The notice should specify the grounds of the motion, and wherein it will be urged that the writ was improperly issued.

The one hundred and thirty-eighth section of the Practice Act, which provides that the defendant may, at any time before answering, "apply, on motion, upon reasonable notice to the plaintiff, to the Court in which the action is brought, or to the Judge thereof, or to a County Judge, that the attachment be discharged on the ground that the writ was improperly issued," does not obviate the necessity of specifying the particular points of irregularity upon which the motion will be made.

Where a notice of motion to dismiss a complaint on specified grounds is given, to obtain a review of the order made on the motion, the record must disclose the papers read, or the evidence offered in their support.

APPEAL from the District Court of the First Judicial District, County of Los Angeles.

The complaint in this case is for goods sold and delivered. It contains several counts, all of which are alike in form. The following is one of the counts: The plaintiffs "complain of Lewis Glazer, resident of the said county of Los Angeles, defendant, and for cause say, that heretofore, to wit, at the county of San Francisco, State aforesaid, on the 30th day of May, 1857, the defendant became and was indebted to the plaintiffs in the sum of seventeen hundred and twenty-three 29-100 dollars, ($1723 29,) for goods, wares, and merchandise, before that time sold and delivered by plaintiffs to defendant, and for money before that time paid, laid out, and expended by plaintiffs, to and for the use and benefit of defendant, all at defendant's special instance and request, which amount the defendant, in consideration of said indebtedness, thereafter, to wit, at the place and on the day aforesaid, undertook and promised to pay to plaintiffs, when he should be thereunto afterwards requested;" and following the several counts, is this allegation of breach, "yet the defendant, although often requested, hath hitherto utterly neglected and refused to pay said amounts, or either of them, or any part of either of them, to plaintiffs." The other facts of the case sufficiently appear in the opinion of the Court.

Kewen and Cadwalader for Appellant.

Latham and Sunderland for Respondents.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., concurring.

Freeborn v. Glazer.

The complaint contains several counts which are in the ordinary form of counts in indebitatus assumpsit, for goods sold and delivered, and money paid and expended; and it is objected to, not by demurrer, but after answer, as defective in not stating facts sufficient to constitute a cause of action. The objection is not well taken. The complaint is sufficient in its allegations; and if they were deemed too general, the defendant could have applied for and obtained an order upon the plaintiffs to furnish a bill of particulars. It states a promise by the defendant, and its consideration and breach. (Allen v. Carpenter, 3 Selden, 476; Buckner v. Platner, 15 Barb., 550; Adams v. Halley, 12 How. Prac., 326; Cudlipp v. Whipple, 1 Abb., 107.)

The notice of motion to discharge the writ of attachment, stated that the motion would be made "because the said writ was improperly issued." The notice should have specified the grounds of the motion, and wherein it would be urged that the writ was improperly issued. The notice gave no information to the adverse party as to the character of the objections which would be taken.

It is true, it does not appear from the record for what reason the Court denied the motion; it may have been for the general and vague character of the objection stated. We certainly will not presume that it was denied for an invalid reason.

The notice of motion to dismiss the complaint, stated specifically the grounds upon which the motion would be made, but it does not appear that any papers were read, or any evidence offered in their support.

Judgment affirmed.

On the petition for a re-hearing, FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

One of the errors assigned for a reversal of the judgment in this case, was the refusal of the motion to dismiss the writ of attachment. The notice stated that the motion would be made "because the said writ was improperly issued;" and we held that the notice was defective, in not specifying the grounds of the motion, and wherein it would be urged that the writ was improperly issued. The appellant now petitions for a re-hearing, and cites the Court to the one hundred and thirty-eighth section of the Practice Act, which provides that the defendant may, at any time before answering, "apply, on motion, upon reasonable notice to the plaintiff, to the Court in which the action is brought, or to the Judge thereof, or to a County Judge, that the attachment be discharged, on the ground that the writ was improperly issued." This section did not escape the attention of the Court in the decision rendered. That section does not obviate the necessity of specifying the particular points of irregularity upon which the motion will be made. It is only a provision that whenever

Gregory v. Higgins and Mann.

the writ is improperly issued, that fact will authorize the application for its discharge. It is like a great variety of provisions indicating the general ground or reason upon which parties may proceed, or the action of the Court may be based, and which are never held to obviate the necessity of specifying the points of objection upon which the moving party will rely. If the point be stated, it may be possible for the opposite party to answer it, and the object of the rule is to give him a fair opportunity to do Re-hearing denied.

So.

GREGORY v. HIGGINS, (DEFENDANT,) AND MANN,

(INTERVENOR.)

The indebtedness of the maker upon a promissory note, before its maturity, is not the subject of attachment. His obligation is not to the payee named in the note, but to the holder, whoever he may be.

Nor can such indebtedness, after the maturity of the note, be attached, unless the note is at the time in the possession of the defendant, from whom its delivery can be enforced on its payment upon the attachment.

APPEAL from the District Court of the Thirteenth Judicial District, County of Mariposa.

The facts of the case sufficiently appear in the opinion of the Court.

D. W. Perley for Appellant.

P. L. Edwards for Respondent.

FIELD, J., delivered the opinion of the Court-TERRY, C. J., and BALDWIN, J., concurring.

On the 23d of June, 1856, the plaintiff commenced an action upon contract against the defendant, to recover the sum of $952, and sued out a writ of attachment, which the sheriff on the same day served upon one Marshall, with a notice that "all moneys, goods, credits, effects, and debts due or owing, or any other personal property in his possession, or under his control, belonging" to the defendant, was attached by virtue of the writ.

The garnishee gave to the sheriff a memorandum, in the nature of an answer to the garnishment, (Practice Act, § 129,) acknowledging that he was indebted to the defendant in the sum of $1250, upon a promissory note payable on the first of January, 1857.

On the 5th of January, 1857, the respondent, Mann, also com