Northern Railway Co. of France v. Carpentier — 3 Abb. Pr. 259

Majority

p. 259

THE NORTHERN RAILWAY COMPANY OF FRANCE a. CARPENTIER.

Supreme Court, First District;

Special Term, October, 1856.

Headnote

Arrest of Female.—Wilful Injury to Property.

Where the complaint showed that a female defendant had aided her co-defendants in taking from the plaintiffs certificates of stock, and in disposing of the same, and converting them into money, which the defendants retained to their own use,—Held, that this was a wilful injury to property, for which a female could be arrested under section 179 of the Code.

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Motion to discharge a female defendant from arrest.

This action was brought by The Northern Railway Company of France, against Charles Carpentier, Louis and Eugene Grélet, Felicité Dubud, Auguste Parot and one Guerin. An order of arrest was granted against the defendants, on an affidavit which set forth the following facts.

Carpentier and Louis Grélet were formerly in the employ of the plaintiffs, in fiduciary capacities ; the first being cashier,, and the second under-cashier. They had a large amount of valuable property belonging to the company, entrusted to their care. In August, 1856, they absconded; and on an examination of their books, accounts, &c., it was found that certificates of 5747 shares, with coupons annexed, of the stock of the company, worth about two hundred dollars per share, were missing; having been embezzled by Carpentier and Grélet. It was shortly afterwards found that they had come secretly to New York, and were here associated with the other defendants for the purpose of disposing of the stock, and that the defendants had together fraudulently and feloniously converted the stock to their own use. The affidavit concluded' with a charge framed in general words, that Eugene Grélet, Felicité Dubud, and Auguste Parot, combined and confederated with Carpentier and Louis Grelet to deceive and defraud the plaintiffs, and aided and assisted them in disposing of the property, knowing the same to have been embezzled and fraudulently obtained.

A motion was now made to discharge from arrest the-defendant Felicité Dubud, on the ground that the cause of action was not “ a wilful injury to person, character or property.”

B. Galbraith and John Townsend, for the motion.

James Morrogh and F. R. Tillou, opposed.

Section 179 of the Code declares that “ no-female shall be arrested in any action, except for a wilful injury to person, character or property.”

It follows that where a female has committed a wilful injury to property she may be arrested.

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It was contended in the argument that the shares and coupons mentioned in the complaint were not property, and therefore the arrest could not be sustained.

I think the averments in the complaint are sufficient to sustain the position that these shares and coupons were property, and the property of the plaintiffs, and that the same were converted with the intent to deprive the plaintiffs of the benefit of the same, as property.

The next question and the grave one is,—What is a willful injury to property ? The counsel for the defendant contends that this means only a willful defacing of it, or a willful depreciation of it by reducing its value; that its total destruction or disposition is not an injury. Bouvier says:—“ Injuries to personal property are the unlawful taking and detention thereof from the owner.” (1 Law Dict., 636). Webster defines “injury” to mean in general any wrong or damage •done to a man’s person, rights, reputations, or goods.

We find in this case that the defendant herein was aiding and assisting in taking from the owners and converting into money, and fleeing the country therewith, the property of the plaintiffs, and consequently detaining the same from the owners.

This, therefore, is an injury to personal property. Is it wilful? Webster defines “ willlful” to mean, “ By design, with set purpose;” and Bouvier, (2 Law Dict., 656), declares the word “ willfully” to mean intentionally.”

Applying these definitions to the facts stated in the complaint, there can be no room for doubt that the acts complained of were injuries to the personal property of these plaintiffs, and that the same were done willfully or intentionally.

The defendant, Felicité Dubud, has therefore, on the facts stated, committed a willful injury to the property of these plaintiffs, and is liable to be arrested therefor. ,

The counsel for the defendant pressed on the argument, as quite controlling this motion, the decision by Judge Mason, in Tracy v. Leland, (3 Code R., 37, 2 Sand. S. C. R., 729). In that case the defendant had been arrested on the allegation that she had concealed, removed or disposed óf a piano belonging to the plaintiff. The judge says that the defendant cannot be

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arrested except for a willful injury to property, and that it is-difficult to understand how a mere detention or concealment of a piece of furniture is a willful injury to it. But he says : “ Had the defendant broken it to pieces, or damaged it intentionally so that its value was thereby lessened or destroyed, that would be a willful injury within the meaning of the act.”

It seems to me that this is a direct authority for sustaining the order of arrest in this case.

Here the stock and coupons have been destroyed as such. They have been converted into money, and that is. beyond all question an injury to the plaintiffs’ property.

That money has been converted to the defendant’s own use, not retained and concealed as the property of the plaintiffs,, which would be a legal conversion, and for such Judge Mason thought a female cannot be arrested. But I understand his opinion to sustain an order of arrest upon facts like those disclosed in this case.

Having no doubt in my own mind on the subject, I must deny the motion made to vacate the order of arrest, on behalf of the defendant, Felicité Dubud.