Ogden a. Rollo.

Gilbert Dean, for the respondent.-I. The demurrer is not well taken. The plaintiff being a creditor of the corporation, the defendant was a trustee for him, and for each several creditor, and liable to each creditor in an individual action. 1. The International Insurance Company was a moneyed corporation. (1 Rev. Stat., 598, § 51; 5 Seld., 593.) 2. The defendant, though called a trustee, was within the provisions of the statute. (§ 53.) 3. By the statute, it was not necessary to join any other trustee, each one being made liable to the full extent of the loss. (1 Rev. Stat., 591; 6 Hill, 571.)

II. The general principles involved in sustaining the liability of the defendant have been established by repeated adjudications, both in this country and in England. (4 London Jurist, N. S., 1068, 1069; Cross a. Sackett, 6 Abbotts' Pr., 247; Mead a. Mali, 15 How. Pr., 347; National Express Co. a. Drew, 32 Eng. Law and Equity, 1, 4, 10; Robinson a. Smith, 3 Paige, 222; 3 Kern., 114; 4 Seld., 312; 3 Comst., 156.)

III. The defendant cannot, on a general demurrer, raise any question as to the joinder of parties, or of causes of action. The point is only,-admitting all the facts stated to be true,—do they constitute a cause of action? (Code, §§ 144, 145, 148.)

IV. A cestui que trust can always maintain an action against a trustee for any violation or neglect of duty, whereby the beneficiary has sustained a loss.

BY THE COURT.-SUTHERLAND, J.-The complaint purports to contain two causes of action. The 1st, 2d, 3d, 4th, and 5th clauses of the complaint contain the first alleged cause of action, and the 6th clause the second alleged cause of action.

I think there is a fatal defect in both counts, or in stating both alleged causes of action, in this: that it is not alleged, nor does it appear, that the plaintiff was a creditor of the corporation at the time the wrongful acts and violation of law complained of are alleged to have been done or committed.

The theory of both counts is, that the wrongful acts complained of caused the insolvency of the corporation, and that the plaintiff became a creditor after such insolvency had been so caused, and that he has sustained loss by reason of such insol

vency.

The first count alleges that the unlawful acts were committed,

Ogden a. Rollo.

or suffered, between the 15th September, 1855, and the 1st day of July, 1856; and that such acts caused the insolvency of the corporation prior to said 1st day of July, and that the plaintiff is, and was, on the 1st day of July, 1856, a creditor of said corporation. It is not even alleged that the defendant was a trustee when the plaintiff became a creditor.

The second count alleges that the insolvency of the corporation was caused by certain wrongful acts of the defendant, in conjunction with other trustees; but it also alleges that the corporation was insolvent when the plaintiff's vessels were insured, and when the corporation became liable to the plaintiff on said insurance for a loss.

The theory of the whole complaint is, that certain wrongful acts done, permitted, or suffered by the defendant as a trustee, in conjunction with the other trustees, between certain dates named, caused the insolvency of the corporation; that the plaintiff became a creditor of the corporation when it was so insolvent; and he really claims to recover for a loss suffered because he gave credit to or became an insurer in an insolvent company. If the corporation was insolvent when he insured or became a creditor, on a loss, or otherwise, it is plain to me that he must charge his loss to the insolvency, and not to the wrongful acts complained of which caused the insolvency. Not being a creditor when the wrongful acts were committed, or suffered, he cannot be said to have been directly injured by them. The loss or injury he complains of is too remote to be charged to the wrongful acts complained of.

Without examining any other point raised by the defendant's demurrers, I think the judgment below should be reversed, and that the defendant should have judgment on the demurrer, with liberty to plaintiff to amend his complaint in twenty days, on payment of costs.

CLERKE, P. J., concurred.

LEONARD, J., dissenting.-I do not concur as to the second

count.

The defendant's acts caused an insolvency. He was a trustee. The averment of these facts supersedes the necessity to aver defendant's knowledge of the insolvency.

Mora a. The Sun Mutual Insurance Company.

After the commission of these acts, causing insolvency, while he was a trustee, the public and the plaintiff being ignorant of the insolvency, the defendant suffered the company, through its officers, to hold itself out as solvent, and caused the plaintiff to receive and rely on its contract of indemnity, whereby an injury was sustained.

The second count is sufficient as an action on the case.

I concur as to the first count. The party complaining must be a creditor, or have a contract on which he may become a creditor, when the violations of law complained of occur. The first count is defective in not so alleging.

MORA a. THE SUN MUTUAL INSURANCE COMPANY.

New York Superior Court; Special Term, September, 1861. . SPECIAL MOTION.-INTERLOCUTORY COSTS.-PREVAILING PARTY.

Section 15 of chap. 386 of the Laws of 1840, which provides that where an uncon. ditional order is made, upon special motion, for the payment of any sum of money, a precept may be issued to enforce the payment-and § 3 of ch. 390 of the Laws of 1847, allowing process in the nature of a fieri facias against personal property, to be issued for the collection of interlocutory costs in certain cases,do not authorize the issuing of process to collect the costs awarded on sustaining a demurrer to part of an answer.

*

*The following cases arising under the statutes above referred to, further illustrate the subject.

The act of 1840 (Laws of 1840, 333, ch. 386, 15) does not authorize a precept to collect costs of an application for judgment on the pleadings, but only to collect the costs of motions strictly so called. (Wesley a. Bennett, 6 Abbotts' Pr., 12.) A precept issues as of course to collect costs given for appearing to oppose a motion noticed but not made. (1845, Herring a. Hallenbeck, 1 How. Pr., 89.) A charge of one dollar for a precept issued to collect costs, given on decision of a motion, cannot be allowed; all the costs are covered by the amount given on the decision of the motion. (1845, Spooner a. Frost, 1 How. Pr., 192.)

Where judgment as in case of nonsuit, is granted absolute, the costs of the motion cannot be collected on a precept; they should be collected as the general costs are. (1846, Carroll a. Frazee, 2 How. Pr., 93.)

Costs of opposing motion for a new trial after judgment entered, may be collected by precept, or the party may, at his election, make up a new record, and include them in it. (1846, Houghton a. Gardner, 2 How. Pr., 144.)

Mora a. The Sun Mutual Insurance Company.

Interlocutory, in law, means that which decides, not the cause, but only settles some intervening matter relating to the cause. The matter thus settled is brought before the court by special motion.

Where a demurrer had been interposed to three of six separate defences contained in an answer, and an order made that plaintiff have judgment upon the demurrer, with costs fixed in the order, and the plaintiff issued a precept for the collection of the costs while the issues of fact were yet undetermined ;-Held, that these costs were neither interlocutory nor the costs of a special motion, and that the precept must be set aside.

Motion to set aside a precept issued to collect costs of proceedings upon demurrers interposed to part of an answer.

This suit was upon a policy of insurance on merchandise, issued by the defendants. The defendants set up in the first three heads of their answer various matters of defence; and

Under rule 60, a precept issued to collect costs, granted on a motion, is premature, if issued within twenty days from the date of the order. (1846, Post a. Haight, 2 How. Pr., 175.)

Where a motion for a new trial is denied with costs, process under the Laws of 1847 (ch. 390, § 2), in the nature of a fieri facias, is the proper remedy for their collection. (Buzard a. Gross, 4 How. Pr., 23.)

Where an appeal is dismissed with "costs on the appeal and costs of motion," the respondent is not at liberty to issue a fieri facias to collect such costs, until their amount has been liquidated by or under the direction of the court. (1850, Eckerson a. Spoor, 4 How. Pr., 361.)

It seems, that a fieri facias cannot be regularly issued in such case, till steps have been taken to bring the party into contempt. 16.

Whenever there is an order of the court, directing the payment of costs, process in the nature of fieri facias may issue against the personal property of the party ordered to pay them (under Laws of 1847, 491, ch. 390), without application to the court, upon expiration of the time prescribed for payment. If such process is irregularly or prematurely issued, the party aggrieved will have a remedy by motion or by action. (Weitzel d. Schultz, 3 Abbotts' Pr., 468; S. C., 13 How. Pr., 191. To the same effect is Mitchell a. Westervelt, 6 lb., 265, 311, note; Lucas a. Johnson, lb., 121.)

Costs awarded on supplementary proceedings cannot be collected by process in the nature of fieri facias, issued under the laws of 1847, ch. 890, § 3. Their payment can be enforced only under section 302 of the Code, which authorizes the officer before whom the examination is conducted to punish as for a contempt, for disobedience to his orders. The process allowed by the act of 1847, can be issued only to collect costs founded on an order of the court. Supplementary proceedings are not conducted before the court, but before the judge as an officer out of court [4 How. Pr., 190; 2 Sandf., 724]; and his order awarding costs cannot be deemed an order of the court. (Hulsaver a. Wiles, 11 How. Pr., 446.)

Process in the nature of a fieri facias, issued against several defendants, to collect the costs of the denial of a motion, is regular, although one of the defendants died previous to making the motion. (Lucas a. Johnson, 6 How. Pr., 121.).

VOL. XIII.-20

Mora a. The Sun Mutual Insurance Company.

then, in the fourth, fifth, and sixth heads of the answer, set forth, by way of separate counter-claims, three promissory notes made by the plaintiffs and held by the defendants. The plaintiffs demurred to the fourth, fifth, and sixth defences. The demurrers were argued at special term, and by the decision made thereon, it was ordered that the plaintiffs have judgment against the defendants on each and all of the demurrers, with costs, with liberty to the defendants to amend their answer within twenty days, on payment of the costs of the demurrer, which were thereby fixed at thirty-seven dollars and ten cents.

The defendants did not amend their answer: after the twenty days given to amend had expired, the plaintiffs' attorney demanded of defendants' attorney the $37.10 costs, which the latter declined to pay, saying the defendants had concluded not to amend their answer.

The plaintiffs' attorney thereupon issued process in the nature of a fieri facias (here called a precept) to collect such costs. It was levied on defendants' property.

The issues of fact raised by the first, second, and third heads of defendants' answer had not been tried.

The defendants now moved to set aside this precept.

Henry P. Fessenden, for the motion.-I. The expression "with costs," in the order, does not import a positive order on the defendants to pay the costs. 1. The Code provides, that in an action like the present, the prevailing party shall recover the costs of a demurrer of course (§ 304, subd. 4; and §§ 305, 307); and it was therefore unnecessary for the court to award them, in order to give the plaintiffs the right to them: while on the other hand, 2. The court has no power to order present payment of costs of demurrer. Such costs are collectible only in the judgment. (Code, § 311, compared with § 315.) It is only interlocutory costs, the immediate payment of which could have been ordered; and under the Code, it is only the costs on a motion which can be ordered to be immediately paid, or can be absolutely ordered. (Code, § 315; Thomas a. Clark, 5 How. Pr., 375; Wesley a. Bennett, 6 Abbotts' Pr., 12.) If these are costs on motion, they cannot exceed ten dollars. (Code, § 315.) Costs on a demurrer are not interlocutory costs; they are costs in the cause, arising on the record. Much less is the argument