Shipman v. Shafer — 14 Abb. Pr. 449

Majority

p. 449

SHIPMAN a. SHAFER.

Supreme Court, First District; General Term,

May, 1862.

Headnote

Arrest.—Fiduciary Capacity.—Receiving Debtor’s Note.

Irregularities not referred to in the papers upon which a motion is made at special term, are not available on appeal from the order made thereon.

The fact that a creditor has accepted the promissory note of his debtor for money received in a fiduciary capacity, is no bar, after the dishonor of the note, to an arrest in an action on the original indebtedness, the plaintiff being ready to return the note.^[1]

p. 450

Where a debtor who had received money in a fiduciary capacity, gave the creditor his check for it, which was protested for non-payment;—Held, that it was no objection to an order of arrest against the debtor in an action to recover the money, that the complaint demanded the costs of protest in addition to the amount of the check, the costs of protest not being claimed as a separate cause of action.

p. 451

Appeal from an order denying a motion to vacate an order of arrest.

This action was brought by William M. Shipman against Thomas H. and Isaac C. Shafer, and Charles Underhill, to re

p. 452

cover $57.57, as the netproceeds of certain butter and pork sold by the defendants, on commission for the plaintiff. The defendants, after receiving the proceeds, sent the plaintiff their check, post-dated, for $51.32, the amount then due. The check was

p. 453

protested at maturity, and, subsequently, plaintiff took defendants’ note at three months, for $57.57, for the amount of the check, and eighty-one cents expense of protest, with interest. This note was dishonored at maturity, and the plaintiff brought

p. 454

the present action, and procured an order of arrest, under which two of the defendants were arrested. Their motion to vacate the order of arrest was denied by Hr. Justice Barnard, and they appealed.

Nathaniel Niles, for the appellants.

I. The order of arrest is a nullity, for irregularities in the jurat of the affidavit on which it was granted, and in the acknowledgment of the undertaking.

p. 455

II. The plaintiff took the defendants’ note, after he knew all the facts, and thus he changed the claim from one in the nature of a wrong to one upon contract, and the defendants are not liable to arrest. (Alliance Ins. Co. a. Cleveland, 14 How. Pr., 408 .)

III. The plaintiff has included the costs of protest in his claim (which is founded on an implied contract to repay) with what he alleges to be a wrong. No order of arrest can be maintained, because if that could be done, the defendants would be required to give bail for a claim not tinged with fraud, by including with it a cause based on fraud. (Lambert a. Snow, 9 Abbotts’ Pr., 91; S. C., 17 How. Pr., 517 .)

Hamilton Odell, for the respondent.

Plaintiff's case being confessed, the only question is: Is it avoided by the fact of the receipt of defendants’ note? Clearly not. 1. The note was received in settlement, in one sense: that is, by it an open account was liquidated or adjusted. As a payment, discharge, or satisfaction of the original claim, it was not effectual. 2. The note of a debtor, even if taken by express agreement in full payment of a precedent contract debt, will not operate as payment so as to prevent the creditor from suing on the original consideration. (Cole a. Sackett, 1 Hill, 516 ; Edwards on Bills, text and notes, 192-207; Nichols a. Michael, 23 N. Y., 264 , 292, 293 ; Higby a. N. Y. & Harlem R. R. Co., 3 Bosw., 497 ; Central City Bank a. Dana, 32 Barb., 296 . See Moers a. Martens, 8 Abbotts’ Pr., 257.) 3. The only effect of receiving the note was to extend to defendants the time of payment. (Geller a. Seixas, 4 Abbotts’ Pr., 103.) 4. The note is unpaid, has not been negotiated, and is in plaintiff’s possession. 5. The original consideration not being impaired, no remedies accompanying it are lost to the plaintiff.

The first three objections to the validity of the order of arrest, raise only questions of regularity. As none of them are referred to in the papers upon which the motion is founded, they are not available here.

It is alleged, by the defendants, that a note was given to the plaintiff after the cause of action herein accrued, and that the demand thereby lost its fiduciary character.

p. 456

The note as given is the obligation of the debtors only, and was not paid at maturity. It is not disputed that the plaintiff still holds it; and is able to make proferí of it at the trial.

In the absence of a special agreement, it is well settled that such a note does not extinguish the original demand. I am wholly unable to see that the plaintiff has received any consideration which can operate to change his rights in respect to the original demand.

It is also stated in the moving affidavits, that the defendants gave a check for this demand of the plaintiff, which was protested, and that the expense of the protest, amounting to 81 cents, is included in the sum for which the plaintiff has obtained his order of arrest, and for which he claims to recover here. If so, it is not stated as an independent cause of action. There is no attempt at the union of a cause of action for which the defendants are not subject to an arrest, with another for which such an order is authorized. The objection arises only from the plaintiff having claimed that there is more money in the defendants’ hands than the defendants are willing to acknowledge. The plaintiff and the defendants disagree as to the sum due for the proceeds of the property sold. If the plaintiff has claimed too much, the defendants can meet him at the trial and take their objections, where that question can be properly determined. It is no ground upon which to vacate the arrest.

The question is, also, within the principle, de minimis non eurat lew.

The order appealed from is affirmed, with costs.

Ingeaham and Bosekrans, JJ., concurred.