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Leffingwell v. Chave et al.

instance of the plaintiff, will peremptorily and unqualifiedly un. dertake that the plaintiff shall pay to the defendant the damages which he may sustain.

The terms “with or without sureties” would seem to indicate that whoever gives the absolute undertaking, whether it be the plaintiff himself or some person or persons whom he or his attorney may procure, there may still be sureties if the Judge so require. The forms of undertaking now in common use make all the undertakers in form and in fact principals as between them and the defendant; and in that sense they are absolute undertakings on the part of the plaintiff and not undertakings with sureties, and such is the undertaking in this case.

It is only in accordance with the language of the section under consideration to say that an absolute undertaking that the plaintiff will pay (whether executed by him or by other persons) is an undertaking on the part of the plaintiff, and the Court or Judge may receive it, if satisfactory, or he may require the security of others who shall execute in very terms as “sureties.

That those who sign as sureties may so express their obligation is plain. Oftentimes they will prefer to do so. And the utmost that can be claimed by a defendant (if so much even be conceded) is, that there shall be a principal in the undertaking in form; and whom he can treat as principal without the necessity of demand or notice, and if the responsibility of such principal be inadequate then that he may have sureties. This construction would harmonize with the claim that in using the terms "with or without sureties,” the Legislature necessarily imply that there must be a principal, since otherwise there is no surety.

If a defendant bring his action on an undertaking in the form in common use, in which the undertaking is absolute, he will be the first to say, “As between me and yourselves you are principals and not sureties." If so, then he has an undertaking given on the part of the plaintiff strictly without sureties.

Nor is it doubtful, I think, that an undertaking in the form “I undertake and promise," &c., executed by one person, with a further agreement in due form by another person by which he became bound as surety, would be a compliance with the statute in its terms as well as its meaning, although the plaintiff signed neither.

Leffingwell v. Chave et al.

Indeed if that form of undertaking had been introduced into use, I greatly doubt that this question would have ever arisen.

But as undertakings are, in general, in form absolute, binding all the signers as principals, it has happened that they have been called sureties and somebody is sought for to be principal in the terms “on the part of the plaintiff.”

I repeat that an approved absolute undertaking that the plaintiff will pay, &c., is enough, whether it be executed with sureties or without sureties, and such an undertaking has been given here.

I am aware that there has been on this point also a difference of opinion, the late Chief Justice DUER, in Richardson v. Craig, (1 Duer, 666,) held that similar words in the section (182) prescribing the undertaking to be given on obtaining an order of arrest made it necessary that the plaintiff should sign the undertaking. But he was compelled to make his own construction yield when the plaintiff was an infant, &c. In Sief v. Shausenburgh, (Sept. 22, 1858,) I am told that Chief Justice BOSWORTH held an absolute undertaking sufficient to justify an order of arrest, though neither signed by the plaintiff nor by any one professing to be his agent. (Askins v. Hearns, 3 Abb., 184; Bellinger v. Gardiner, 12 How. Pr. R., 381.)

The last objection to the plaintiff's proceedings is that he has not filed the papers upon which the injunction was granted as required by the 4th of the Rules of Court. When the notice of this motion was given the fact so stated was true and the defendant had a right to his motion and the Court might vacate the injunction order upon that ground. But it appears by the affidavit on behalf of the plaintiff that the omission to file the papers was an inadvertence, and so soon as the notice of motion was received the papers were filed. Under such circumstances the Court have a discretion to relieve the plaintiff from the consequences of his omission, but as the defendants' motion is regular such relief should be granted upon terms. Indeed, if the plaintiff had at once given notice of the filing and sought a waiver of the motion, I would have allowed no costs to the defendant if he persisted in his motion.

All the other grounds of motion must be overruled, but upon this last point the motion must be granted unless the plaintiff pays the costs of motion, $7. If he pay those costs within five days the motion is denied.

Hilliker, Receiver, v. Hathorne et al.

JAMES H. HILLIKER, Receiver, Plaintiff, v. GEORGE C.

HATHORNE, JR., et al.

1. Where by a judgment or decree a defendant is required to execute an

assignment or conveyance to the plaintiff, and an instrument in proper form is tendered to him, he is bound to execute it, although it has not been sub

mitted to the Court or Judge for approval. 2. It is, however, proper that such a judgment should provide for the settle

ment of the form of the instrument by a Judge or Referee, and if the defendant is in doubt respecting the propriety of the form of the instrument pro

posed, he should apply to the Court to have it settled. 3. On a motion to punish a defendant for a contempt in not executing the

assignment tendered, where the judgment did not provide any mode of settling the form thereof, it appeared that the defendant acted in good faith, under the advice of counsel deeming him not bound to sign the instrument in the form tendered; the motion was discharged without costs, on the

defendant's executing the instrument. 4. In an action by a Receiver, on behalf of a judgment creditor to set aside

an assignment of a lease, the Court, on the 27th of March, announced its decision that the assignment was void; that the plaintiff is entitled to an assignment thereof as Receiver, and to the rents thereafter to accrue from the tenants in possession. On the 1st of April, one of the defendants, who had heard, in general terms, that the case had been decided in the plaintiff's favor, but had no knowledge of the particulars, or that the plaintiff was by such decision entitled to the rents due that day, collected such rents. On the 9th of April, a judgment was entered in conformity with the decision, and was made to bear date of the day the decision was announced. The defendant was not under any injunction in the action, and the decision did not direct an injunction. Upon these facts, a motion to punish the defendant for collecting those rents, as for a contempt, was denied. (Before WOODRUFF, J.)

At Special Term; May 5th, 1860.

In this case certain judgment creditors of the defendant Hathorne, caused him to be examined before a Judge of the Supreme Court on proceedings supplementary to execution issued on a judgment recovered in that Court, procured an injunction from a Judge of that Court, to restrain him from disposing of or interfering with his property, and the plaintiff herein was appointed Receiver of his property. The plaintiff, as Receiver, brought an

Hilliker, Receiver, v. Hathorne et al.

action in this Court to set aside an assignment of a lease executed and delivered by Hathorne to the other defendants as fraudulent and void as against the judgment creditors. A judgment was rendered declaring the assignment void, and directing the defendants to assign the lease to the plaintiff as Receiver, and directing the tenants in possession of the premises “to pay over the rents hereafter to accrue to the plaintiff, as such Receiver, and that he collect a sufficient amount to satisfy the judgment and execution aforesaid with costs,” &c. The decision of the Court was publicly announced and noted in the minutes on the 27th day of March, 1860. But the judgment was not drawn up and entered until April 9th, 1860. After which the plaintiff's attorney drew an assignment and tendered it to the defendant, Hathorne, for execution, and served on him a copy of the judgment. He declined; his counsel advising him that he was not bound to sign the instrument tendered to him, and that the form of the instrument must first be settled by the Court, or under its order, before he should sign it.

Rents became due from the tenants of the demised premises on the 1st day of April, (after the Judge had announced his decision,) and the defendant, Hathorne, after he had heard in general terms that the case was decided in the plaintiff's favor, but before the judgment was entered, collected such rents or a portion thereof.

The plaintiff then moved for an attachment to punish the defendant, Hathorne, for a contempt in refusing to execute the assignment and also in collecting such rents.

His excuse was, that the form of the instrument of assignment had not been settled or approved by the Court or a Judge thereof and the advice of his counsel.

And in relation to the collection of the rents, he swore that he was not aware that by the decision of the Court the plaintiff was entitled to the rents which had already become due; that the rent which he had collected had become payable before he had received any notice of the terms of the judgment and before the judgment itself was entered, which declared the plaintiff to be entitled to the rents hereafter to accrue.

The judgment when entered, viz., on the 9th April, 1861, was made to bear date March 27th, the day the decision was

Hilliker, Receiver, v. Hathorne et al.

announced. It contained no terms of injunction restraining the defendants.

Nelson Smith, for plaintiff, in support of the motion. 1. Refusal to execute the assignment was a contempt.

2. Collection of rents after notice that the case was decided in favor of the plaintiff, was a contempt although the decree had not been entered or served. (Skip v. Harwood, 3 Atk., 561; Kempton v. Eve, 2 Ves. & Beames, 349; Hull v. Thomas, 3 Edw. Ch. R., 236; People v. Compton, 1 Duer, 515, 553.)

Although the decree contains no prohibition restraining Hathorne from collecting the rents, it does declare the plaintiff entitled thereto, and adjudges their payment to him as Receiver. It was, therefore, a contempt on his part, and impeded the plaintiff in the assertion of his rights under the decree tending to defeat the decree, and render it ineffectual. (5 Vin. Abr., 446; Sir James Butler's Case, 2 Salk., 596.)

Otis D. Swan, for defendant.

WOODRUFF, J. In this case the decree ought to have provided some mode in which, if counsel differed as to the form of the assignment to be executed by the defendants, their difference could be settled by laying before a Justice of this Court the proposed assignment and the objections thereto, that the form might be settled by him. But, in the absence of such a provision, the plaintiff had a right to require the execution of an assignment; and, if the one tendered by him was a proper one, the defendants, under the advice of their counsel, should have executed it, or should have procured and executed some other in proper form, or, if he was in doubt, should have applied to the Court on his own behalf to have the form settled. Nevertheless, if, as appears on this motion, the form of assignment had not been approved by the Court, and the defendants' counsel advised that it was not drawn in proper form, the defendants should have an opportunity to execute the assignment, and, upon doing so, this motion should be deemed discharged.

As to the moneys collected from the tenants in possession of the demised premises, although I think the conduct of the defend

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