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FERRISS & EATON VS. THE AMERICAN INSURANCE COMPANY.

Security for costs cannot be demanded of the assignee, under a voluntary assignment for the benefit of creditors, who prosecutes a suit in the name of the assignor; such suit is not within the meaning of the statute commenced "for or in the name of the trustees of a debtor."

MOTION to stay proceedings until the plaintiffs file security for costs. One of the plaintiffs (Ferriss) resides in the state of Ohio; the other (Eaton) in this state. The action is covenant on a policy of insurance, the interest in which was assigned to two persons in trust for certain creditors of Ferriss; and which assignees brought this suit, and are prosecuting it for the benefit of such creditors. The assignees, or one of them, reside in this state.

H. H. Martin, for the motion.

J. L. Talcott, contra.

By the Court, COWEN, J. It is supposed that this case comes within the 2 R. S. 515, § 1, entitling the defendant to security for costs, when the suit is for or in the name of the trustee of any debtor. It is true, that the conventional assignees of a debtor, to collect a sum due to him and pay it out to a creditor or creditors, may in some sense be considered his trustees, and so may every agent or bailee of the debtor for such a purpose, and especially assignees of all his property in possession and action for a like purpose; yet I apprehend the statute was not intended for cases of voluntary conventional assignments, but rather for a class. of trustees created by operation of law under the various statutes concerning insolvent debtors, the provisions of which are mainly comprehended in 1 R. S. pt. 2, ch. 5, tit. 1. In the article 8th of the title, 1 R. S. 796, 2d ed. § 1, all assignees and trustees under any authority conferred by any of the provisions of the preceding articles of that title, are thereby declared to be trustees of the estate of the debtor,

The People v. Comm'rs, &c. of Deerfield.

&c. for the benefit of creditors; and by the same article, they are invested with rights to have demands concerning the estate of the debtor, heard and decided summarily before referees. In some cases they may bring suits in the name of the insolvent, as well as in their own names. They might in a few cases have done so without any express statutory provision, but the right is moreover expressly recognized by the 7th section. In such a case, security for costs would be very reasonably demanded, though the ground of requiring it where they sue in their own names, and reside in the state, is not so obvious. Suffice it to say, however, that the provision for security now in question may be satisfied by applying it to trustees proper of a debtor declared so by the statute. There is no reason for giving the provision an enlarged construction. In the case at bar, one of the nominal plaintiff's resides within our jurisdiction, and, in case of his being unable to pay costs, the assignees can be resorted to by attachment. The remedy is ample; and independent of the plaintiffs being trustees, it is a sufficient answer under the statute that any one of them resides within the jurisdiction of this court. 2 R. S. 515, § 1, 2d ed.

Motion denied, with costs.

THE PEOPLE, ex rel. CLARKE VS. THE COMMISSIONERS OF HIGHWAYS OF DEERFIELD.

Bail as a condition of staying execution is not neccssary in suing out a writ of error to review a judgment of this court in a case arising on mandamus. In such case and in all others not within the terms of the statutes requiring bail as a condition of staying execution, a writ of error coram vobis stays execution by its own force.

A bond for costs in error, must however be executed to obtain the allowance of such writ.

MOTION to stay execution. This court gave judgment against the defendants, on a special verdict, in a mandamus case and they brought error. A motion is now made for a special order to stay execution until the decision of the court for the correction of errors.

The People v. Comm'rs, &c. of Deerfield.

A bond with sureties has been executed securing the costs in error, and filed with the clerk. But the names of the obligors are not inserted in the penal part; and it concludes with saying that the costs will be paid with instead of without fraud or delay. The bond is in the penalty of $300, according to 2 R. S. 494, 2nd ed. § 27, sub. 3, and the condition pursuant to id. § 28, sub. 3, i. e. it was drawn as for a case wherein there was no intent to stay execution. None of the obligors are described as being commissioners of highways. Upon this bond the writ of error was allowed. But counsel thinking there was no provision in the Revised Statutes for staying execution in a proceeding by mandamus, in which both sides agreed, the above motion is now made to this court.

W. Tracy, for the motion.

B. F. Cooper, contra.

By the Court, CowEN, J. The better opinion I think is, that admitting this writ of error to have been duly allowed, which is not denied, provided the bond be in due form, it operates per se, as a supersedeas, if, as is also agreed, it come within no part of the statute requiring bail as a condition of staying execution. The plain import of the books which I have consulted seems to be, that, at common law, a writ of error coram vobis stayed execution by its own force; and the various English statutes, which required bail only in certain specified cases, were considered as restrictions upon common right, vide per Savage, C. J. in Craig ads. Scott, 1 Wend. 35, Bromagham v. Clapp, 6 Cowen, 611, and were therefore strictly construed. 1 Rich. Pr. K. B. 322, Dubl. ed. 1792. Gilling v. Baker, 2 Bulstr. 53. Yelv. 127. Bydleson v. Whytel, 3 Burr. 1545. Trinder v. Watson, id. 1566. Bostock v. Snell, Cro. Jac. 135. Thrale v. Vaughan, 2 Str. 1190, 1 Wils. 19. Dell v. Wild, 8 East, 240. Gerard v. Danby, Carth. 28. The case in 2 Str. will perhaps be thought the best illustration among the more modern books. Some cases certainly conflict on the point of a strict

The People v. Comm'rs, &c. of Deerfield.

or liberal construction of the statutes.

Vide Chauvet v.

Alfray, 2 Burr, 746, which is for a liberal construction, and Bydleson v. Whytel, 3 Burr, 1545, contra, and vide 1 Lee's Dict. of Pr. 615. That may be so of other authorities, but none which I have found deny that the case being without the statutes, bail is unnecessary to a stay. The 2 Wms. Saund. 101, l, after mentioning judgments by default, on demurrer, or nul tiel record, as being without certain statutes of bail, adds therefore a writ of error upon judgment by any of these three last ways, is a supersedeas without bail in such actions as are not enumerated in 3 Jac. 1," and Vide 1 Lee's Dict. Pr. 613.

Among the old books the 26 H. 6, fol. 8 a, and Dawbeney v. Davie, Dy. 244, a, in M. T. 7 and 8 Eliz. are exactly to the point: and the 1 Rich. Pr. K. B. 323, on these and other authorities, says "a writ of error is, in judgment of law, a supersedeas until the errors are examined, affirmed or reversed." This book professes to speak of the doctrine as understood before the Stat. 3 Jac. 1, ch. 8, which seems to have begun the system of bail in error. Vide 2 Wms. Saund. 101, i, et. seq. This statute, vide Statutes at large, recites thus: "Forasmuch as his Highness' subjects are now more commonly withholden from their just debts, and often in danger to lose the same, by means of writs of error, which are more commonly sued than heretofore they have been, Be it therefore enacted, that from and after, &c., no execution shall be stayed or delayed upon, or by any writ of error, or supersedeas thereupon to be sued," &c. in any action of debt, &c., unless bail be given, &c. This remedy has been extended since to most actions in England; and still farther with us. In the Dean & Chapter of St. Paul's v. Capell, 1 Lev. 117,1 Keb. 13, S. C. the court said, although writs of error are writs of right, yet they are, for the most part used for delay, for remedy whereof the statute 3 Jac. 1, ch. 8, was made; and several of the cases cited in the learned and elaborate opinion of Willes, C. J. in Meriton v. Stevens, Willes' Rep. 272, declare that the writ of error operates in itself to supersede execution. It was held in

The People v. Comm'rs, &c. of Deerfield.

Meriton v. Stevens, that it should so operate from the time of allowance, and that after notice given of its being sued out, the taking of execution would be a contempt. Indeed the cases in England, to this day, at any rate, till very lately, proceeded upon that theory. It is enough to get the writ allowed; it then in the first instance, operates of itself; and effect is given to the statutes of bail by holding that the operation shall continue or cease, accordingly as bail is or is not given within four days. 2 Tidd. Pr. 1070. 1083,4, N. Y. ed. 1807. Rich. Pr. K. B. 323, Dubl. ed. 1792. 2 Wms. Saund. 101, g. note.

The effect of a writ of error, in cases beyond our statute of bail was also recognized by this court in Kinney v. Whitford, 17 Johns. R. 34. The court said that, to make it a supersedeas in a qui tam action no bail was necessary, because the case was not within the statute. The same principle has long had full effect with regard to writs of certiorari to reverse the judgments of inferior courts, which have been held per se to supersede execution, because in nature of a writ of error. Vide Blanchard v. Myers, 9 Johns. R. 66. Patchin v. The Mayor, &c. of Brooklin, 13 Wendell, 664, and the cases there cited.

By the revised statutes, 2 R. S. 490, 2d ed. § 1, writs of error in civil cases, are expressly declared to be of right, and to issue of course. Under our statute, id. 486, no doubt the proceeding by mandamus is a civil remedy, Bac. Abr. Mandamus, (M) to which the writ of error applies with its full common law effect, when properly allowed. Damages and costs follow a judgment in favor of the relator, 2 R. S. 486, 2d ed. § 57, and on bringing error, the party in order to obtain an allowance, must give a bond, as he has done here, at least to secure the payment of costs on error, id. 494, § 26, 27, 28, in a form adapted to the case. Counsel seem to be correct, however, in saying that the statute does not provide for any bail as a condition of staying execution. But I cannot agree with them that there is any serious doubt upon the effect of the writ of error. So much difficulty was felt by them on both sides, that I have examined the question considerably; and taking

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