Union Bank a. Mott.

"There is no provision requiring the complaint to contain allegations which authorize the defendant's arrest or imprisonment. By section 183, the order for the arrest may be made at any time before judgment." * ** The learned judge, in that case, considered that the Legislature did not contemplate any different form of the complaint between bailable and non-bailable actions, and that in most cases, where the defendant may be arrested under section 179, the ground of arrest is something wholly aside from, and independent of, the form of action. In Field a. Morse (9 How. Pr. R., 47), the same judge held that allegations, and statements in the complaint tending to them, show that the debt was fraudulently contracted, and constituted no part of the cause of action, and should be stricken out as irrelevant and redundant. He adds that "the doctrine of the case of Cheney a. Lenbath (5 How. Pr. R., 467) has been, since the decision of that case, distinctly recognized and approved in the Court of Appeals." The case referred to is doubtless that of Corwin a. Freeland (2 Seld., 560). There the Court of Appeals say that an examination of the different sections of the Code will satisfy any one that the Legislature never intended to oblige the party alleging the fraud to embrace it in his complaint. In the first place, the order to arrest cannot be procured upon the pleadings, no matter how broadly the fraud may be alleged in them, but must be on affidavits showing that a cause of action exists, and that the cause is one of those mentioned in section 179. The order to arrest may be made at any time after the summons, before judgment. These provisions show clearly that the order to hold to bail was intended to be independent of the pleadings; and although such orders may, in some instances, be founded on the same facts which constitute the cause of action, in others they may rest upon facts totally distinct from the cause of action, and in all cases the facts must appear by affidavits before any order of arrest can be made. By subdivision 4 of section 179 of the Code, in any action, when it appears, as it must, by affidavit, and independent entirely of every thing in the summons or complaint, that the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which the action is brought, he may be arrested and held to bail. In Goodrich a. Dunbar (17 Barb., 644), this court held that, under subdivision 4 of this section, the defendant may

Union Bank a. Mott.

be arrested for the fraud in contracting the debt, or incurring the obligation for which the action is brought. And in Wanzer a. De Baun (1 E. D. Smith, C. P. R., 261), the summons was for relief, the action being commenced on a judgment recovered in another State. The question was, whether the defendant could be held to bail on affidavits showing fraud in contracting the original debt, for which the judgment had been obtained. Woodruff, Justice, in delivering the opinion of the court, says: "The statute has abrogated the right to hold to bail in certain cases, but not when the debt was fraudulently contracted. It results, I think, that when a debt is fraudulently contracted, the right to hold to bail remains to the plaintiff, whatever may be the form of his action, and through whatever change his security may pass, until his debt is satisfied or discharged." It being apparent to my mind, from the facts before me, that the defendant has been guilty of a fraud in contracting the debt, or incurring the obligation for which this action is brought, it follows that it is a proper case to hold him to bail, whatever may be the form of the summons, or the allegations of the complaint.

The only question remaining to be considered is that of the reduction of the amount of bail. As that has been passed upon by one of the justices of this court and refused, I ought not to review that decision unless new facts are presented bearing on that question. The only one is, that after an examination by the recorder, the presiding judge in our criminal courts, he has adjudged that the defendant, prima facie, has been guilty of the fraud charged, and has held him to bail in the sum of $10,000 to answer the criminal charge. This investigation and decision afford strong additional evidence of the truth of the plaintiffs' charge of fraud against the defendant, and furnishes an additional reason for holding him to bail. I do not see that the fact of his being held to bail for the criminal charge, furnishes any reason for reducing the bail the judge who first granted the order thought proper to fix, and, on argument, deemed it right to retain. The facts and amount of bail, in this court, were considerations proper to be urged before the recorder in fixing the amount of bail then, and doubtless had an influence on his mind in determining the amount in which he held the defendant. I do not see that they are sufficient to war

Percy a. Seward.

rant me in interfering with the bail as fixed by the judge who granted the order of arrest.

The motion to discharge the order of arrest, and to reduce the amount of bail, is denied, with costs.

PERCY a. SEWARD.

Supreme Court, Third District; Special Term, May, 1858.

CONSOLIDATION OF ACTIONS.-CHANGE OF PLACE OF TRIAL.

The plaintiff brought at one time, and against the same defendants, a separate action in each of the counties of the State, for one and the same libel, which was published in the county in which all of the parties resided.

Held, that the defendants' motion to consolidate the actions into one must be granted.

The motion to consolidate was properly made in the county in which all the parties resided.

The time to plead in the consolidated action in such a case, should be the time which remained in the action in the county to which the other actions were drawn by the consolidation.

Motion to consolidate several actions.

The defendants were sued as editors and proprietors of the Albany Evening Journal, a newspaper printed and published in the city and county of Albany. The plaintiff brought against them, in the Supreme Court, sixty-two separate actions, one in each of the sixty-two counties of the State, for the publication of an alleged libel in the paper of the defendants. The damages in each action were laid at twenty thousand dollars. The parties all resided in the county of Albany. The action in that county was commenced first; the others were commenced together, a few days afterwards.

The defendants appeared in the actions, and served upon the plaintiff a demand "that the place of trial in each and every of said actions be changed (and you are hereby required to change the place of trial of each and every of said actions) from the place and counties stated in the complaints in said actions, and herein above mentioned, to the proper county, to wit: the county in which the plaintiff and defendants both reside and resided

Percy a. Seward.

at the time of the commencement thereof-the county of Albany."

The defendants now moved in the county of Albany for "a rule or order to consolidate into one action each and all and every of the within entitled actions."

The notice of, motion was entitled in all the actions, and the motion was founded on the following papers:-1. The summonses and complaints in all the actions. 2. An affidavit stating that all the parties, plaintiff and defendant, then, and at the time of the commencement of the action, resided in Albany county. This affidavit further stated "that each and every of said actions, except the action with the place of trial named in the county of Albany, was commenced at the same time; that the questions to be tried in each, every, and all of said actions are identical, and that the cause or causes of action in each complaint are not only the same subject-matter, but that the same language and words are used and set out in each of said complaints, and differ in no respect except in the language in the complaint, in which the place of trial is laid in Albany county." This affidavit further stated that deponent, one of defendants, was one of the editors and proprietors of the Journal, and conversant with the facts connected with the alleged libel, acquainted with the defence to all the actions, and that the defendants intended to defend them; and the affidavit contained also the usual oath to merits. 3. The demand to change the place of trial.

Samuel G. Courtney, for the motion.

Plaintiff in person, opposed.

GOULD, J.-It is perfectly plain, from the affidavits and the complaints, that the cause of action in all the cases is the one identical printed article, printed in one day's paper; and the defence (if any, and whatever it may be) must be identically the same in all. All the parties reside in Albany county; and the plaintiff, if desirous to increase his damages by reason of the circulation of the paper in all the counties of the State, might attain that end by averring in a single complaint such circulation. But the whole circumstances show that suing in every county in the State is merely vexatious and vindictive; reaching counties where probably no one either knows any thing or

Percy a. Seward.

cares any thing for either party, and as to which the plaintiff, whatever he may presume, does not know that the libel has been circulated. Justice requires that all the suits should be consolidated into one.*

But the plaintiff claims that as to those where the place of trial is laid out of the third district, except those in Schenectady and Saratoga counties, which adjoin Albany county, this court has not jurisdiction of the motions.

If this ground be sound, then if the plaintiff resided in Dutchess county, and the defendants in Washington county, and the plaintiff had brought one suit in each of those counties, there

CRANE a. KEHLER (New York Common Pleas, Special Term, April, 1858). In this and another action between the same parties, the defendant, on an affidavit that the defence to be interposed in each action was substantially the same, moved for an order consolidating the actions.

HILTON, J.-A motion to consolidate is addressed to the discretion of the court, and ought not to be granted unless it appears from the moving papers that the questions to be tried are substantially the same in both suits. (Dunn v. Mason, 7 Hill, 155; Wilkinson v. Johnson, 4 lb., 46.)

The affidavit of the defendant's attorney merely states that the defence in each suit "is substantially the same, as defendant has informed him, and as he believes."

This is not enough. The nature of the defence should be disclosed, that the court may determine whether the questions to be litigated are such as can properly be disposed of at one trial.

Motion denied, with costs.

MORRIS a. KNOX (New York Common Pleas, Special Term, 1858). In this and three other causes between the same parties, the defendant, on affidavits stating the defences, moved for an order consolidating the actions.

BRADY, J. (after reviewing the peculiar facts of the defences, and showing that they were not identical.)—It was said on the argument, by the defendant's counsel, that the Code, by sections 150, 166, and 244, materially affected the disposition of motions of this kind. I have examined the sections referred to, and have arrived at the conclusion that the rules which prevailed before the Code must still be applied. It is true that heretofore, when the consolidation of causes would delay the collection of a part of the sum demanded, it would be refused as prejudicial to the plaintiff (Pierce v. Lyons, 3 Hill, 450); and that by section 244 the court may on motion direct the defendant to satisfy that part of the claim which he expressly, or by not denying, admits to be just, thus obviating the necessity for the rule in Pierce v. Lyons; but that remedy can be as well applied when the causes are united as if the union had not been ordered. The inquiry must still be, Are the questions to be tried substantially the same-the defences identical (4 Hill, 46); and in the exercise of a sound discretion, can the causes of action be consolidated? I am satisfied that these cases should proceed separately, for the reasons assigned.

Motion denied, with $10 costs in one action only, to abide event.