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Chappel agt. Skinner.

this case, according to the plaintiff's affidavits, he had such election. Indeed, he would be entitled to such election in any case where he could proceed under chapter 2, to recover possession. But where he has once determined his election, he must abide by it, and is not at liberty afterwards to change his ground. He has not the right, as I think, to commence his action, and hold the defendant to bail, and afterwards have the property delivered to him. This would be oppressive to the defendant, and it seems to me was never contemplated or intended by the legislature.

The plaintiff's course was to have pursued the proceedings pointed out in chapter 2, above referred to, which do not authorize the defendant's arrest; and if the property could not be found, and the case is within the 3d subdivision of $ 179, to obtain an order and have the defendant arrested; but in that case he can not afterwards obtain the possession of the property pending the action.

Having in this case elected to have the defendant arrested and held to bail in the first instance, under one of the subdivisions of $ 179, I think the plaintiff was bound to wait until he was entitled by the judgment of the court to the possession of the property, before causing it to be delivered to him. I am not able to perceive that the defendant has done any thing by which he waived the right to have the property restored to him.

The motion must be granted, but without costs; as this is the first time, of which I am aware, that the question has arisen.

NOTE.-Abbey agt. Abbey. The Supreme Court at the last January general term (1852), in the second judicial district, dismissed an appeal in this action taken from an order at special term granting temporary alimony. The appeal was sought to be sustained upon the ground that the order granted a "provisional remedy" and was therefore appealable under $ 349 of the Code. The court, MORSE, Justice, held that such an order was not a provisional remedy within the provisions of the Code ; that it was no more appealable as a provisional remedy than as an order not involving the merits or some part thereof. It was of a class of orders which depended upon the discretion or favor of the court.

Another appeal in the same action, taken from an order granting an attachment for disobedience to the order for temporary alimony, was dismissed on the same grounds.

Perkins and Brown agt. Warren,

SUPREME COURT.

PERKINS AND Brown agt. WARREN.

Where, during the pendency of an action, it shall appear by affidavit, that the

defendant threatens, or is about to remove or dispose of his property, with intent to defraud his creditors, a temporary injunction may be issued, under the last clause of section 219 of the Code, to restrain such removal or dis

position. But such remedy by injunction is only applicable where the act is threatened,

or is about to be done, and not when it has been done. Nor is a plaintiff entitled to an injunction in such case, unless he establishes an

equitable ground for interference, by showing that he is a creditor, or that

he will be injured by the threatened fraudulent transfer. An injunction ought not to be issued on such an application, where the plain

tiff's demand is denied on oath by the defendant, and is unsupported by any evidence, and there is no proof that the plaintiff has any interest in restrain

ing the defendant. Where the legal right of the plaintiff is denied by affidavit as broadly as it is

asserted, the application stands upon the same ground and should be governed by the same rule, as where the whole equity of a complaint is denied by the answer.

Albany General Term, December 1851-Before Justices HARRIS, PARKER and WRIGHT. This was an appeal from an order of Justice HARRIS, allowing an injunction.

The action was commenced in December 1850, to recover a balance of between four and five thousand dollars, which the plaintiffs claimed to be due them for cash advances made to the defendant. The cause being at issue, was referred to a referee, before whom the trial was commenced on the first day of October at 3 o'clock P. M. The trial, after proceeding several days, was adjourned to the 9th day of December following. It is alleged in the affidavit upon which this motion was founded, that the defendant had, “ by several orders staying plaintiff's proceedings for commissions not executed, and otherwise, succeeded in delaying the proceedings for a great length of time, and for the purpose, as it was believed, of making a fraudulent disposition of his property, to defeat the collection of the judgment to which the plaintiffs weré entitled, that the last order staying the plain

Perkins and Brown agt. Warren.

acres.

tiff's proceedings was vacated on a motion made in the defendant's presence, when one of the plaintiffs, in an affidavit, charged that object upon the defendant.

It also appeared by the affidavit of James N. Halsted, a justice of the peace residing in the same town with the defendant, that on the morning of the day on which the trial was to commence, he was requested to go to the house of the defendant, and, upon his arrival there, he found the defendant and one Perry Warren, his cousin, and a deed from the defendant and his wife to Perry Warren, was then executed and acknowledged. Also a bill of sale of the defendant's personal property. The deed conveyed the farm upon which the defendant resided. Another deed was also executed and acknowledged conveying a farm lying in an adjoining town. The quantity of land conveyed was about 538

At the same time, notes were executed by Perry Warren to the defendant, payable at different times, and amounting in the aggregate to about $13,000, being the price of the real and personal estate so conveyed.

Upon affidavits showing these facts, an order was made requiring the defendant to show cause why an injunction should not issue, restraining the defendant from removing or disposing of or conveying away his property; and in the mean time restraining such removal or disposition.

In opposition to the motion, the affidavit of the defendant was read, stating that the conveyance of his property to Perry Warren had no reference to the suit pending between him and the plaintiffs; that the sole reason of his making the sale was his ill health and his consequent inability to superintend and carry on the business. It further appeared that the defendant had for the last two years offered his farm for sale, and had on one occasion been in negotiation with a purchaser for such sale. The defendant also stated that he still owned 250 acres of good farming land, worth between seven and eight thousand dollars; and besides this he had property free and clear of all incumbrances, and above all debts and liabilities, more than sufficient to pay and satisfy any judgment which the plaintiffs could by possibility recover against him.

On these facts, and others appearing in the opinion of the

Perkins and Brown agt. Warren.

court, Justice Harris allowed an injunction, and gave the following reasons:

HARRIS, Justice.—No more radical change has been made by the Code than that contemplated by the single clause in the 219th section, upon which this application is founded. This provision was first adopted in the amended Code of 1849, and was no doubt intended as a substitute for proceedings in similar cases, under the “act to abolish imprisonment for debt.”

The only question is, whether the plaintiffs have made a case which entitles them to the injunction for which this statute provides? Does it appear that the defendant threatens, or is about to remove or dispose of his property with intent to defraud his creditors? The principal facts from which it is insisted that such fraudulent intent is to be inferred are, that the defendant, being the owner of two farms in the county in which he resides, on the morning of the day on which the trial of an action, in which the plaintiffs sought to recover a judgment against him for several thousand dollars, was to commence, and after such trial had been delayed for several months, at least, conveyed to his relative both farms and all his personal property, liable to execution, without receiving any payment therefor, or any security, except the promissory notes of the purchaser, payable at future periods. Such a transaction is certainly unusual. The fact that so large an amount of property passed out of the defendant's hands into the hands of his cousin just upon the eve of the trial of this action, excites the irresistible suspicion that the transfer had some reference to the result of such trial. And then, when it further appears that the defendant received no part of the purchase money, and that no securities were executed therefor, except the notes of the purchaser, and those payable at remote periods, it is difficult to believe that the defendant had no other object in view than an ordinary sale of his property. Nor do I think these circumstances, tending, as they do so strongly, to establish a fraudulent intent, are satisfactorily explained by the defendant. He states, it is true, that for several years he had been desirous of selling his farm, and that this was publicly known; but then he does not state, what would have been a very material circumstance in

Perkins and Brown agt. Warren,

making out the good faith of this singular transaction, that Perry Warren had been desirous of purchasing all or any of his property, or that any negotiation had ever been had in relation thereto. It does not appear that the sale was ever mentioned or thought of by either the defendant or Perry Warren, until the very day the transfer was made, when the defendant had some reason at least to apprehend that a judgment for a very serious amount was impending over him. Upon the whole, I think the case, as it is presented by the affidavits before me, abundantly justifies the conclusion that it is the purpose of the defendant so to dispose of his property as to place it beyond the reach of the plaintiffs. It is, therefore, a proper case for the injunction for which the statute provides.

It was contended by the defendant's counsel that the injunction, if allowed, should only restrain the defendant from removing or disposing of his property fraudulently. Such an injunction would, in my judgment, be simply absurd. It would be saying to the defendant, in effect, “ you may remove or dispose of your property, as the plaintiffs apprehend you will, so as to place it beyond their reach, when they obtain judgment; all that is enjoined upon you is, that you do it with honest motives.” The act is not restrained, but the fraudulent intent. Such an injunction would be of no practical effect, and I am sure was never intended by the legislature. I think the preliminary injunction already allowed should be continued until the further order of the court. The defendant thereupon appealed to the general term.

J. WHIPPLE JENKINS, for Plaintiffs.

W. A. BEACH, for Defendant. By the Court, PARKER, Justice. The injunction order appealed from enjoined and restrained the defendant Henry Warren, his agents and attorneys, from removing, or in any way or manner disposing of any of the property, real or personal, of said defendant, and particularly from transferring or disposing of any due bills or promissory notes given by one Perry Warren to said defendant, on or about the first day of October 1851, until the further order of the court or of the justice making such order.

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