Graves v. Briggs.

Every unlawful act, by whomsoever done, that lessened the value of the plaintiff's property by decreasing and impairing the value of the security, was a tort and a wrong, and the plaintiff has a right of action against the wrongdoer.

The defendant's conduct is both malicious and dishonest, and I think actionable. The reasons on which the liability rests are found in the precepts of the common law as recognized and administered in this country. Plainly he owed the plaintiff a duty not to dis. place his lien and lessen the value of his property by an intentional act done with the view and for the purpose of depriving him of the security he gave on his property to pay his own honest debt.

While he remained the owner of the property, he could lawfully do many things with it of profit to himself; he could use and occupy, he could place other liens and incumbrances upon it, and sell and convey the equity of redemption. It is argued by the defendant's counsel that he has done no more than one of these things, and the whole defense is embraced in this single proposition.

The jury have found, and upon proof entirely satisfactory to the court, that the act was done by the defendant for the purpose of cheating and defrauding the plaintiff. It is the intent and purpose which induced the act that makes it wrongful and actionable. If the defendant, while in possession and before foreclosure, had fired the buildings, with the motive of destroying the plaintiff's security, and for that reason he had lost his entire debt, clearly a right of action would have existed to compensate the injured and damaged party. If no damage to other persons should follow the act of destruction, then the act could not be regarded in the law as unlawful and wrongful. The act has caused an injury to the plaintiff's estate, and damage thereto is the result. It is as direct and natural as

Graves v. Briggs.

if the defendant had taken from the person of the plaintiff his purse containing a sum in gold equal to the amount of the verdict.

"Every malicious act is wrongful in itself in the eye of the law, and if it causes hurt or damage to another, it is a tort, and may be made the foundation of an action. Malice may be proved by evidence of personal hostility and spite entertained against the injured party, or any other corrupt and improper motive" (1 Addison on Torts, 4th Ed. 36, and cases there cited).

There is no wrong without a remedy, is a maxim of the common law. I think the defendant's conduct and motives bring him within this wholesome precept, and that the plaintiff can be indemnified against the defendant's wrongs in a just application of it.

If the act was not condemned and made wrongful by the common law, the defect has been supplied by our statute. It is as follows:

"Section 3. Every person being a party to any conveyance or assignment of any estate or interest in lands, goods or things in action, or of any rents or profits issuing therefrom, or to any charge on any such estate, interest, rents or profits, made and created with intent to defraud prior or subsequent purchasers, or to hinder, delay or defraud creditors or other persons;

and every person being privy to or knowing of such conveyance, assignment or charge who shall willingly put the same in use, as having been made in good faith; shall, upon conviction, be adjudged guilty of a misdemeanor" (2 Rev. Stat. 690-969).

The defendant's act as charged in the complaint and maintained by the proof is in the very teeth of this statute. The thing done is made wrongful and declared a misdemeanor.

Every statute intended to prevent mischief, injury or grievance, impliedly gives a remedy to the person who suffers injury and damage in consequence of the

Graves v. Briggs.

doing of the acts forbidden, if no remedy be expressly given by the statute (Ashby v. White, Ld. Raym. 938; 1 Smith Leading Cases, *342; Broom Legal Maxims, 155). With our recording acts in force, a statute of this import and distinctness is of great public importance, intended to be a restraint upon dishonest persons, who owning property in possession, have the opportunity to commit cheats and frauds, as the defendant did in the case before the court.

An action in favor of the party injured must be presumed by the law, for there can be no violation of its provisions, without the offender has it in mind to defraud some person in particular. It is the very essence of the statutory offense, that the transaction should be such that it wrongs a party interested in the property which is the subject of the conveyance.

The crime may be complete, and the offender punished, even if the conveyance is upon a good and sufficient consideration, and to a person who is acting in entire good faith. The purpose of the law is to restrain and prevent a resale and reconveyance of property, in fraud of prior as well as subsequent pur

chasers.

The defendant's counsel seems to regard the action as one of deceit, and as having its foundation in the transaction by which the note was given up and the mortgage taken. In this he is altogether mistaken. It is the defendant's subsequent behavior, in giving the Warner mortgage and procuring its record, that is charged as wrongful and as done with intent to cheat and defraud the plaintiff.

It is not urged, that a new trial should be granted if, upon all the proofs, the plaintiff made a good cause of action. I think he did, and a meritorious one. The motion is denied with costs.

Leary's Case.

LEARY'S CASE.

U.S. District Court, Southern District of New York; January, 1879.

HABEAS CORPUS.-EXTRADITION. -PERSONAL IDENTITY OF PRISONER.

-EVIDENCE.

A traverse to a return to a habeas corpus requires no further pleading under U. S. Rev. Stat. § 760, to put its affirmance in issue (p. 47). Proceedings in a State court by certiorari to review a decision on a writ of habeas corpus in that court, do not prevent a court of the United States from proceeding on a writ of habeas corpus subsequently issued from the latter court (p. 47).

On habeas corpus issued from a court of the United States to inquire into the detention of a prisoner held under a governor's warrant in inter-state extradition, notice to the attorney-general of the State is not necessary (p. 48).

It is sufficient evidence to make a prima facie case, that the prisoner is the person described in the warrant (p. 48).

The prisoner being in court, his petition for the habeas corpus cannot properly be read in evidence in his favor on the trial of the issue raised by the traverse (p. 49).

It must be regarded as settled, that the word "crime," in the provisions of the constitution for inter-state extradition, embraces every species of offense made punishable as a crime by the law of the State making the demand, though the law be passed subsequent to the constitution and the act of Congress, and the act be not criminal by the common law or the laws of other States (p. 54). The right to demand the extradition is not an imperfect right resting in comity or matter of discretion, but a legal right having fixed and well-ascertained conditions (p. 54).

The fact that the party demanded is charged with crime, is to be proved by a copy of an indictment or an affidavit certified by the governor of the demanding State. Authentication under the provisions of the judiciary act as to proof of records of one State in another cannot be required either by the governor or by the court on habeas corpus (p. 56).

The warrant of the governor is conclusive evidence in a procceding on habeas corpus that the party named in the warrant stands charged with crime in the State demanding his surrender (p. 57). It is not necessary that the evidence or copies thereof on which the

governor acted should be attached to the warrant (p. 57).

Leary's Case.

The court of the United States cannot issue a certiorari to the governor of the State to require the production of such documents (p. 58). The cases of the People ex rel. Lawrence v. Brady (56 N. Y. 182) and Exp. Smith (3 McLean, 121), questioned and distinguished (p. 63). The fact that the party has been indicted for an offense which in its own nature implies the actual presence of the offender within the jurisdiction of the demanding State, is sufficient prima facie evidence of his having fled from justice when found in the other State (p. 66).

Where it appears by the recitals in the warrant that the governor had before him a duly authenticated copy of an indictment against a party for an offense, the commission of which necessarily implies the presence of the party at the time and place of the alleged offence, this is sufficient prima facie evidence that the party is a fugitive from justice (p. 68). Whether it is conclusive evidence on

habeas corpus, query.

The question of the identity of the prisoner with the party described in the mandate is always open to inquiry on hebeas corpus (p. 68).

Habeas corpus.

The petitioner, John Leary, by his petition sworn to December 21, 1878, applied to the court for a writ of habeas corpus, averring that he was held in custody by the sheriff of the city and county of New York; that the pretense of his imprisonment was a warrant issued by the governor of New York, directing the sheriff to arrest said Leary and deliver him over to the custody of one Pinkerton to be taken to the State of Massachusetts upon a requisition of the governor of Massachusetts to the governor of New York, charging him with the commission of a felony in the State of Massachusetts, and with being a fugitive from justice from said State; that the petitioner denied that he was the person named and mentioned in said requisition or in said warrant of extradition, or that he ever fled from the said State of Massachusetts to the State of New York.

The writ was allowed and the sheriff produced the prisoner and made return that he arrested and held him under a writ or requisition directed and duly