Sutherland agt. Tyler, &c. HARRIS, Justice. The answer of the defendant in this case, though quite informal, contains three distinct defences. At the time the answer was put in, a demurrer to an answer was authorized, and the plaintiff accordingly demurred to the second defence. The case was thus put in readiness for a trial upon issues of fact formed by the first and third defences, and an issue of law formed by the demurrer. The issue of law alone was tried. The decision was in favor of the defendant. The condition annexed to the decision was not accepted by the plaintiff, and the defendant became entitled to judgment upon the issue of law, unless the decision should be reversed upon appeal. The amount of the costs upon the demurrer having been fixed by the agreement of the attorneys, the defendant, without reference to the issues of fact remaining undisposed of, undertook to perfect a judgment in the action for the costs upon the issue of law. This he could not regularly do. A judgment is defined to be "a final determination of the rights of the parties." Such." final determination" could not be made, so long as there were issues of fact between the parties which had not been tried. The judgment entered upon the decision of the demurrer, amounted to nothing more than an order of the court overruling the demurrer, and declaring the right of the defendant to judgment upon that issue. But for the amendment of the 349th section of the Code, adopted in 1852, a review of the decision upon appeal could not have been had, until after all the issues had been disposed of and final judgment perfected. That amendment authorized an appeal before judgment. Both parties have erred in their practice: the defendant, in perfecting judgment upon the issue of law, when several issues of fact remained upon the record undisposed of; and the plaintiff, by appealing from the decision upon the demurrer as a judgment, and not as an order. But, though the appeal was, in form, an appeal from a judgment, I can see no objection to giving effect to the decision of the general term upon such appeal, as an appeal under the second subdivision of the 349th section of the Code. Bell agt. Mali, Jewett and Stacy, &c. For the reasons already stated, the defendant was also irregu lar in perfecting judgment upon the decision of the general term. There can be but one final judgment in the same action. By that judgment all the points in controversy between the parties must be determined. The record of this judgment does not show such a determination. But as the decision of the demurrer is evidently fatal to the plaintiff's action, and no motion has been made to set aside the judgment as having been prematurely entered, I proceed to consider the question of costs presented by this motion. Regarding the appeal as really an appeal under the 349th section of the Code, though in form an appeal from a judgment, the case is brought directly within the decision in Van Schaick agt. Winne, (8 How. 5,) and the defendant, instead of taxing costs as upon an appeal from a judgment, should have taxed his costs as upon the trial of an issue of law. Then he would have been allowed twelve dollars for the trial of the issue of law before the general term, inst ead of fifteen dollars before argument, and thirty dollars upon the argument of the appeal. Thirty-three dollars must, therefore, be deducted from the costs as taxed. Neither party should have costs upon this motion. SUPREME COURT. BELL agt. MALI, JEWETT and STACY. GAILLARD agt. the same. Where the plaintiff, in his complaint, alleged that under the false representations of the defendants, that only the legitimate number of shares of stock of the company had been issued, he bought stock of the company at a certain time, but omitted to show or allege that at that time the stock had been over-issued, and showed that the over-issue was after he bought, Held, that the complaint was fatally defective in showing title, or right to bring Bell agt. Mali, Jewett and Stacy, &c. the action. It was material to the plaintiff's case, so far as he relied on a false representation, to show directly that the representation was untrue when made. The complaint also stated, that the genuine stock could not be distinguished from the false, and that thereby the plaintiff sustained a loss. Held, that if the false stock was valueless, the loss could not result, or if it could the plaintiff should show how. And if the over-issued stock was valid, and bound the company, then the injury was primarily to the company, and only indirectly to the plaintiff; and the company should sue, or be made a party defendant, and the plaintiff sue for himself and all other stockholders. (See Wells agt. Jewett, ante page 242.) The false representation, with proper averments, would give a cause of action to the plaintiff alone; the mere over-issue would give a cause of action to the company, or the plaintiff and all the other stockholders. But the two matters could not be joined in one complaint. To justify an arrest, it must appear to the judge by affidavit, “that a sufficient cause of action exists." (Code, § 181.) The omission to state in the complaint in this case so material a part of the cause of action, held to be a failure to comply with the requirements of the Code. On an application for an order of arrest, or to sustain such an order, the material statements in the affidavits, if on information and belief merely, should show how the information was derived, and why the person communicating it did not make the affidavit. The stock of all companies about to be engaged in mining operations must have only a fancy value. The market value, therefore, must be assumed to be the real value, when no more certain test is shown. New-York Special Term, June, 1855. MOTION to discharge defendants from arrest, or to reduce their bail. for defendants. MITCHELL, Justice. The complaint in the first of these cases somewhat resembles that in Wells agt. Jewett, (ante page 242,) but differs in three respects. There is apparently but one count intended; the plaintiff alleges that he is the holder of genuine stock, and does not set forth the sale of the lands or ships of the company, and so omits the first two counts contained in that case. The allegations of fraud are much more distinct, and are direct against all three of these defendants. Bell agt. Mali, Jewett and Stacy, &c. It, however, shows a fatal defect of title, or of right to bring this action. It alleges that all the plaintiff's stock was bought in 1853, except a small part bought in the early part of 1854; and that it was bought under representations of the defendants, that only the legitimate number of shares of stock had been issued, but omits to show that, at that time, any more had been issued and it shows that the over-issues were after that timestating that it was while the defendants were directors, and previous to the first day of June, 1854. This seems to imply that the over-issue was about that time; and it was material to the plaintiff's case, so far as he relied on false representation, to show directly that the representation was untrue when made: he cannot show that the defendants represented that there was no over-issue when he bought, and then show, as proof of the falsity of that representation, that they afterwards made the over-issue. The complaint proceeds to state that the genuine stock could not be distinguished from the false, and that thereby the plaintiff sustained a loss. If the false is valueless, this loss could not result, or if it could, the plaintiff should show how it does result. If the over-issued stock is valid, and binds the company, then the injury is primarily to the company, and only indirectly to the plaintiff, and the company should sue, or if the company will not sue, it should be made a defendant, and the plaintiff sue for himself and all other stockholders. (See opinion in Wells agt. Jewett, ante page 242.) The complaint in Gaillard agt. Mali has the same defects as in that of Bell. The false representation, with proper averments, would give a cause of action to the plaintiff alone,-the mere over-issue would give a cause of action to the company or to the plaintiff, and all the other stockholders,-so the two matters should not be joined in one complaint. The plaintiff alleges in Bell agt. Mali, &c., and shows that his purchases of stock were made in 1853, except one purchase on Feb. 3d, 1854. The over-issues, he alleges, were between June 1853, and June 1854: so they may all have been since Bell agt. Mali, Jewett and Stacy, &c. Feb. 3d, 1854, and then the plaintiff would have no cause of action for the false representation, as it could not have induced him to buy. To justify an arrest, it must appear to the judge, by affidavit, 1st, "That a sufficient cause of action exists." (Code, § 181.) The omission to state so material a part of the cause of action, is a failure to comply with this requirement. The plaintiff's affidavits show a connection between Stacy and Mali as to the over-issue of the stock, but not as to any authority from Mali to Stacy to make misrepresentations as to the over-issues: they show no representations made by Mali himself he promised to render a statement, and did not make it; but that was not a representation of an existing fact. In July, 1853, Stacy was asked, if all the stock was issued, and if more would be issued: he answered, that the 30,000 were issued, but that, by their charter, the company had power to issue 10,000 shares more, but that no more would be issued. The statement as to the power given by the charter may have been an error as to the law, and on a question on which the plaintiff could judge for himself by reference to the charter. The promise was no representation. He was asked why the stock was going down, and attributed it to speculation by brokers. It does not appear that, at this time, the over-issue was begun. He made similar answers to similar inquiries in January, 1854. It may be that the over-issue had then taken place, and as he began to answer, and professed to give an account of the cause of the fall of the stock, he was liable if he concealed other, or the true causes of the fall, with the intent to deceive and defraud the dealers in the stock. (See Addington agt. Allen, quoted in Wells agt. Jewett, ante page 242.) But the time of the over-issue is material, and Mali should be shown to have authorized the statements made. It might be consistent with the plaintiff's statements, that Mali relied on a supposed right in the company to issue to a larger extent; or according to his own, that he knew nothing of them. No application was made to Jewett for information. |