Butler agt. Wood.

Monroe Special Term, January, 1853.-Demurrer to complaint.

The action is for verbal slander. The complaint contains two counts or statements of causes of action, which are sufficiently stated in the opinion.

SIMEON B. JEWETT, for defendant.

JOHN H. MARTINDALE, for plaintiff.

WELLES, Justice. The complaint alleges and sets forth two distinct causes of action; and the demurrer is general to both of them. If either cause of action is good, the demurrer must be overruled.

In the first count, the words charged, without the innuendos, are as follows:

"I believe he has got Mrs. Brockway down there; I ain perfectly satisfied in my own mind that she is down there, and is pretty sick; and that what Butler is running down there so much for, he knocked her up; her time has come around, and he is down there getting a child away from her. He is procuring an abortion upon her."

To the above expression, "her time has come around," is annexed the following innuendo: (" meaning that the usual period of parturition had arrived.")

The plaintiff has thus given a construction to that portion of the words, which, it seems to me, precludes the idea of the commission, or an attempt to commit or produce an abortion or miscarriage. Were it not for this interpretation, which the plaintiff has adopted, and which I think he is bound by, I should have been of the opinion, that the expression referred to might well be construed as meaning that the time for producing an abortion or miscarriage had come round. I understand that there is a time, during the period of gestation, or after conception, before which a miscarriage or abortion cannot be produced, or a time when it can be accomplished with the greatest safety to the female, and that the fœtus must be formed, and at some age or state, in order to be able to produce such

Butler agt. Wood.

effect; at least, that such is the popular notion, and that is sufficient for this purpose. And as the defendant used the word abortion, which only relates to a premature birth, in the same connection, he intended by the expression "her time has come around," that the proper or best time for producing the abortion had arrived, thus making it relate, either to the stage of the pregnancy, or to the time when it was discovered.

But, it seems to me, the plaintiff has precluded himself from the benefit of this construction, by his express allegation of the other, to wit: that the time for the delivery of a mature child had arrived. It must, therefore, be intended, that whatever act or offence the words imputed, it was something done at the regular period of parturition. Adopting, therefore, the plaintiff's interpretation of the words in the first count, they do not impute to him an offence involving moral turpitude, for which he could be punished criminally.

In the second count, the innuendo to the words, "her time has come around," is as follows: "meaning and intending that the said Ann Brockway had gone to Rochester to be delivered of a quick child ;" and then it is added, "and he is down there getting a child away from her. He is down there procuring an abortion upon her."

These words, I think, are actionable. By section 2 of ch. 260 of Sess. L. of 1845, (p. 286,) any person who shall use any means whatever, with intent thereby to procure the miscarriage of any woman pregnant with a quick child, shall, upon conviction, be punished by imprisonment in a county jail, not less than three months, nor more than one year.

The charge is, that the plaintiff was procuring an abortion upon Mrs. Brockway. "Abortion" is defined to be the act of miscarrying, or producing young before the natural time, or before the foetus is perfectly formed: The fœtus brought forth before it is perfectly formed. He could not be procuring an abortion without using some means, with that intent, to wat end. The words charged, do, therefore, impute to the plaintiff, in substance, the offence mentioned in the statute. That of

Mott and others agt. Dunn and others.

fence clearly involves moral turpitude, and is punishable by indictment as a crime.

As the last count is good, and the demurrer general to both counts, there must be judgment for the plaintiff, with leave to the defendant to answer on payment of costs.(a)

SUPREME COURT.

JOHN MOTT, PHILIP G. WEAVER, and WILLIAM RIchardson, agt. SAMUEL C. Dunn, George A. DOREMUS, Alexander M. BAKER, and EDWIN W. DIMMOCK.

Where a debt is not disputed, and where a preliminary judgment and execution would be of no use, (there being actual insolvency,) it is competent for the creditor, as the law now stands, in cases of fraud, or contemplated fraud, to apply at once for an injunction and receiver, and have his demand liquidated and paid in one proceeding. That is, a simple contract creditor, on a claim not disputed, before resorting to and exhausting his remedy by judgment and execution, may interfere with, and arrest the disposal of his debtor's property, (by injunction, receiver, &c.,) and call him to account—and with him, his assignees—for any alleged fraud or illegality in its transfer; thus effecting, in one suit, what formerly required two to do.

New York Special Term, December, 1854.

THE plaintiffs in this case were partners in business, and merchants doing business in the city of New-York, under the name and firm of Mott, Weaver & Richardson. They brought their action, and, in their complaint against the defendants, claimed that previous to the 28th of March, 1854, Dunn and Doremus were general partners, engaged in the city of New-York and elsewhere in the business of purchasing and selling goods and merchandize, under the name and firm of Samuel C. Dunn & Co. That on or about the 21st of October,

(a) The above decision was affirmed on appeal to the general term, in the 7th district, in March, 1854.

Mott and others agt. Dunn and others.

1853, the defendants, Dunn & Doremus, made, endorsed and delivered to the plaintiffs a promissory note, of which the following is a copy:

"$953.35.

"New-York, 21st Oct., 1853.

Eight months after date, we, the subscribers, of New-York, state of, promise to pay, to the order of ourselves, nine hundred and fifty-three dollars, thirty-five cents, at

received.

"SAMUEL C. DUNN & Co.,

value

"37 Dey-st."

That, on or about the 24th of October, 1853, the said Dunn & Doremus also made, endorsed and delivered to the plaintiffs another promissory note (setting forth a copy similar to the other,) for $558.23. That said notes had not, nor had either of them, or any part thereof, been paid; that the plaintiffs were then the holders and owners of the same, and that the defendants, Dunn & Doremus, were justly indebted to them. thereupon in the sum of $953.35, with interest from June 24, 1854; and in the sum of $558.24, with interest from June 27, 1854.

That the plaintiffs, at the request of the defendants, Dunn & Doremus, sold and delivered to the latter, goods and merchandize as follows: On the 8th Feb., 1854, to the amount of $13 95; on the 11th Feb., 1854, to the amount of $561.87; on the 27th Feb., 1854, to the amount of $122.64; on the 20th March, 1854, to the amount of $69.66; on the 21st March, 1854, to the amount of $12.30; and on the 28th March, 1854, to the amount of $82.29. For which several amounts the said Dunn & Doremus promised to pay the plaintiffs, but had failed and neglected so to do; and were then justly indebted to the plaintiffs therefor in the sum of $862.90.

That, on or about the day of April last, the defendant, George H. Doremus, sold and transferred to the defendant, Samuel C. Dunn, all his right, title and interest in and to all the property, effects and assets of the said firm of Samuel C. Dunn & Co., and that an agreement was then entered into

Mott and others agt. Dunn and others.

between said Doremus and Dunn, that the partnership should be, and thereby was dissolved. That, at the time of such sale and dissolution, the said firm of Samuel C. Dunn & Co., and said Doremus and Dunn, individually, were insolvent and unable to pay their debts, which was well known to them.

That, on the 18th May last, said Dunn, for himself individually, and the firm of Samuel C. Dunn & Co., executed and delivered to the defendants, Alexander M. Baker and Edwin W. Dimmock, a general assignment of all their property, choses in action, &c., for the benefit of their creditors, (setting out a copy of it.) That, on the 26th May, 1854, said Doremus executed, at the foot of said assignment, a consent and ratification thereof.

The plaintiffs claimed and averrea, that said assignment and transfer, and the ratification aforesaid, were made and entered into for the purpose of delaying, hindering, and defrauding the creditors of the said firm, and were fraudulent and void as against said creditors. That soon after the execution of the assignment, &c., the assignees took, and then held, possession of all the property and effects intended to be conveyed by said. assignment.

That the property and effects included in and covered by the assignment, did not exceed in value $50,000; that the preferred debts mentioned in the schedules A. and B., (attached to the assignment,) amounted to about $34,000; and that the whole indebtedness of said firm of Samuel C. Dunn & Co., exceeded $111,000. That there were sundry mortgages, notes, and choses in action, which belonged to the said late firm of Samuel C. Dunn & Co., and included in the assignment, amounting to a sum exceeding $11,000, which, previous to the making of the assignment, had been hypothecated by said Dunn to various individuals and firms, and were then held by them as security for the payment of small sums, borrowed from such individuals and firms by said Dunn for said firm, and on its account; and which mortgages, notes, and choses in action, the creditors of said firm of Samue! C. Dunn & Co., were equitably entitled to redeem and obtain possession of, and apply to