Page images
PDF
EPUB

The Republic of Mexico agt. Arrangois and others.

the difficulty. After a careful examination of it, I am of opinion that it is sufficient to do so.

He says, that he was appointed Consul General, &c., to reside in New-York, and was afterwards established in New Orleans. That he received instructions, dated the 14th of July, to leave to the Vice-Consul the discharge of his duties at New Orleans, and to proceed to New-York as a special commissioner, to take the monies from the hands of the plaintiff, and, if necessary, to assume his place as minister; that he received such instructions on the 25th of July, abandoned his office, and proceeded to New-York. He says, that he held no office at all properly so called when he commenced performing the duties in question, the consulate being a commercial agency, and its functions having been renounced by him, and never again assumed. He also explains away his receipt for his salary as consul. Whether successful or not, it is of moment to show his renunciation of the character.

It is remarkable that no formal act of official resignation is exhibited by the defendant; and it is left doubtful whether at this moment he is not de facto the consul of his government.

I am inclined, however, to think that, for the purposes of this suit, his admissions are sufficient to prevent the act of congress from applying, and to authorize the action in this court. That he will be hereafter absolutely estopped from claiming his privilege, even if he now possesses the office. It then results that the plaintiff must take his statement of renunciation of the office, or the presumption must be that he re

tains it.

If this is the case, the Mexican government must submit to consider him as a special agent or commissioner to receive the money, and as a banker to meet the drafts, and disburse the funds. The authorities there cited do not bear directly upon the case, for there was no official character belonging to the defendant with a salary attached to it. It may, however, be remarked, as to those cases, that a remuneration was provided for the services, directly or indirectly, by sanction of law. If there was no proper officer to perform them, or he was dis

The Republic of Mexico agt. Arrangois and others.

abled, the one employed succeeded to the duty, and took the compensation allowed for its performance. (United States agt. M'Daniel, 7 Peters, 1; Same agt. Ripley, id. 18; Andrews agt. United States, 2 Story's Rep. 208; United States agt. Duval, Gilpin, 356; United States agt. Gratiot, 15 Peters, 336; United States agt. Buchanan, 8 Howard, 102.)

Thus, then, the case is narrowed down to one of a special agent, receiving money for his employer, authorized and required to deposit it in his own individual name, where it could be readily appropriated, and required to meet the drafts of his principal upon it. He performs this office and business to the whole extent of the fund in his hands, except a balance which he claims to retain as a proper commission for his services.

The construction of the second subdivision of the 179th section of the Code, I apprehend is this: That a defendant may be arrested in an action for money received, where he is a factor, attorney, agent, &c., or other person in a fiduciary capacity. And again, that the same designated persons may be arrested for property embezzled, or fraudulently misapplied by them. There are two cases for the arrest, and the enumerated persons may be arrested in either of them.

It is of importance here to notice the distinction which exists as to cases under the 179th section. In one class, the order of arrest may be made upon facts, which may be entirely independent of the cause of action; which are to be stated in affidavits, and need not be stated in the complaint, and where the arrest may take place after the cause has actually been tried. (Cheeny agt. Garbut, 5 Howard, 468; Field agt. Morse, 7 Howard, 12; Gardner agt. Clark, 17 Barb. 646; Corwin agt. Freeland, 2 Selden, 502; Lee agt. Elias, 3 Sandf. S. C. Rep. 736.)

Under subdivision four, for example, the action may be for goods sold and delivered, and the arrest be founded upon fraud in obtaining the goods. The latter may entirely fail, and the former succeed. They are so distinct that the ground on which the arrest is to be obtained ought not to appear in the complaint.

On the other side, where a defendant is sought to be arrested

The Republic of Mexico agt. Arrangois and others.

as an agent receiving money, the ground of action and the ground of arrest are identical. The plaintiff cannot obtain the one, unless he appears entitled to succeed in the other. If his cause of action is shown to be unfounded, his cause of arrest must fail. If the affidavits destroy the allegation of a fiduciary character, the arrest cannot be sustained, although that will not terminate the suit. In this respect the analogy to an old injunction cause is close. The answer may be so full and explicit as to require the dissolution of an injunction, but yet the suit proceed, for the testimony might disprove it.

An opinion has been entertained by several judges, that the arrest must be sustained, unless a case is made out showing that the plaintiff cannot possibly succeed in his suit. I speak, of course, of cases of the present class. It strikes me to be a better rule-one more sanctioned by analogy, as it is more in favor of liberty-to hold that the arrest shall not be sustained, where the defendant raises a fair legal presumption that his claim may be supported.

We are to recollect, in these cases, that the Code has introduced a new element in our law upon this subject. A case of arrest of bail or no bail-may be decided upon affidavits which tend to decide the cause as then presented. The court of appeals recognize this to be the result of their own construction of the Code. (2 Selden, 562.) The delicacy and difficulty of such a position for a judge, is daily experienced.

Applying the law thus stated to the facts of this case, as now presented, I have come to the conclusion that the defendant shows a right to a compensation, by way of commission, from his government.

The case of Gardner agt. Dunbar, (17 Barb. Rep. 644,) referred to by counsel, is very pertinent. The distinction is there taken, between an agency merely to sell and account for the balance immediately after deducting commissions, and where there is a general charge of the principal's business, paying debts, and assuming liabilities for him, and then to sell the property. The only agency that the Code refers to was one to sell and collect. The agency to pay out and superin

Sheldon, adm'r, &c., agt. Hoy.

tend for the plaintiff, was the principal part of the defendant's duty. The plaintiff looked to him as a debtor, rather than as an agent.

The Mexican government, in this case, entrusted what it deemed a duty of delicacy and high importance to the defendant. It has been accomplished with admitted skill and promptitude, and, unless there is in this present claim a breach of faith and trust, with acknowledged fidelity. The services were of a mercantile nature. He requires a compensation in money, and mercantile law and usage sanction it.

But the line of reasoning, and the authorities which give the power, and make it the duty of the court, to judge of the right of action upon such a motion, require it to decide how far a claim can be sustained, when the plaintiff appears entitled to some, though not to all that he demands.

It is my duty in this case to pass upon the extent of the compensation to be allowed, upon all the facts before me, as well as upon the right to any compensation. And, in my opinion, the sum withheld is disproportionate to the services rendered. I am of opinion that one half per cent. would be proper and sufficient; and it therefore results that the amount of the security in this case should be reduced to $30,000, and the order of arrest should be so far modified.

SUPREME COURT.

STEPHEN S. SHELDON, adm'r, &c., respondent, agt. Jas. Hoy, appellant.

Where an action of trover is brought by a plaintiff, as administrator, for a conversion of the property during the lifetime of the intestate, the complaint must state the fact that the plaintiff is administrator, and has been regularly appointed by the surrogate of some county in this state; because, it is a material and traversable fact, and must be stated in such form as to tender an issue to the other party.

Shaldon, adm'r, &c., agt. Hoy.

A complaint commencing, "A- B-, administrator of the goods, chattels and credits of CD, late of, deceased, plaintiff in this action, complains," &c., is a descriptio persona merely, and insufficient to show that the plaintiff prosecutes in a representative capacity; it must be regarded as a complaint by the plaintiff in his own right.

But an administrator can bring trover in his own name, without declaring in his representative capacity, for the goods of his intestate converted after his death, even though the conversion was before the granting of administration. Where the plaintiff alleges that he was possessed, as administrator, of the goods, it is equivalent to an allegation that he was lawfully possessed, if it is not that he had title as well as possession. The term "possessed," imports that it is held by lawful title.

An allegation that "the property, after being in the possession of the plaintiff, came into the possession of the defendant, who, although requested so to do, has not delivered the same to the plaintiff, but wrongfully detains the said goods from him," is sufficient (if true) to establish a conversion. A wrongful detention, against the demand of the true owner, is a conversion, as much so as a wrongful taking.

Seventh District, General Term, March, 1855.

JOHNSON, WELLES, and T. R. STRONG, Justices.

APPEAL from order at special term overruling a demurrer. The amended complaint in this action was as follows:

"MONROE COUNTY, SS:-Stephen S. Sheldon, administrator of the goods, chattels, and credits of Job Phelps, late of Clarkson, deceased, plaintiff in this action, complains of James Hoy, defendant in this action, for this, to wit: That on the first day of September, 1851, at the town of Clarkson, in the county of Monroe, Job Phelps, deceased, was possessed, as of his own property, of one bay horse-colt, of the age of four or five years then past; one buggy wagon; and one double harness; and one pomissory note of the amount of eighty dollars, dated about two years past, made by the said defendant; and one promissory note of the amount of fifty dollars, dated about one year then past, made by the said defendant;—of the value of three hundred dollars; and being so possessed thereof, the said goods, chattels, and credits, on the day and year first aforesaid, at the place aforesaid, came into possession of the said defendant, who, although often requested so to do, has not delivered the said goods, chattels, and credits aforesaid to the said plaintiff

« PreviousContinue »