Wilde agt. Joel and others.

master or otherwise, as the chancellor or vice-chancellor having jurisdiction of the cause should direct." (Rule 31.)

In the rules of the supreme court, adopted in 1847, after the new constitution, the last cited rule was adopted in nearly the same language. There was added a clause, that an injunction should not be allowed on the plaintiff's bond only, unless he justified in an amount equal to the penalty. (Rule 21.) Thus, then, from 1837 to the passage of the Code, the rule was in substance as follows: "A bond was taken in a sum not less than $500, with or without sureties, conditioned to pay to the party enjoined, such damages as he may sustain by reason of the injunction, if the court shall eventually decide that the complainant was not equitably entitled to such injunction; such damages to be ascertained by a reference to a master or otherwise, as the court having jurisdiction of the cause, shall direct."

The 222d section of the Code is, that where no provision is made by statute, as to security upon an injunction, the court or judge shall require a written undertaking on the part of the plaintiff with or without sureties, to the effect that the plaintiff will pay to the party enjoined, such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct. There are some cases under the Code, which tend to answer the present inquiries.

In Griffin agt. Slate, (5 Howard, 205,) the defendants, after an injunction discharged, moved for leave to prosecute the undertaking, having obtained the report of a referee as to the damages. The court held, that the report ought to be con firmed, for upon it the court was to pronounce its judgment as to the damages sustained by reason of the injunction, and to determine whether the injunction bond should be ordered to be prosecuted. In Higgins agt. Allen, (6 Howard 30,) the court ruled that where a bond was taken in 1846, in a suit in chancery, and did not contain the clause as to a refer

Wilde agt. Joel and others.

cnce, such a course could be taken. But under the Code it could be, whether the clause was in the undertaking or not. It was also held, that the undertaking could not be in suit without permission granted.

The court in Gracie agt. Sheldon, (3 Barbour's Sup. Ct. Rep. 232,) made a similar decision upon a bond taken under the 31st rule of the court of chancery. In Dunkin agt. Lawrence, (1 Barb. Sup. Ct. Rep. 447,) where an injunction was dissolved on the matter of the bill only, the court refused a reference. It could not be had until the cause was eventually decided. The injunction might be reinstated upon the proofs, and the plaintiff shown to have been entitled to it. In Sherman agt. The New York Central Mills Co., (11 Howard 269,) and in Weeks agt. Southwick, (12 Howard, 170,) a similar decision was made under the Code. In the latter case, a referee had made a report for dismissal of the complaint, but judgment was not yet entered, and the motion was held to be premature.

Loomis agt. Brown, (16 Barbour, 325,) was the case of an injunction discharged by the dismissal of the complaint upon a trial, and judgment was docketed. At a special term, the court ordered that the damages sustained by the defendant by reason of the injunction, should be ascertained by an action upon the undertaking. Upon a demurrer to the complaint filed in that action, it was held that the dismissal of a com. plaint on a final hearing, implied of itself a determination that the plaintiff was not equitably entitled to the injunction at the commencement of the suit.

The case of Bein agt. Heath, in the supreme court of the United States, (12 Howard, U. S. Rep. 177,) was this. An injunction was obtained in Louisiana, upon the equity side of the circuit court, and an order was made that a bond be given very similar to the undertak der the Code. It was held, court of the United States, could not proceed accordpractice of Louisiana in such a case. "A court eding according to ules of equity, cannot give a judgment against the obligors in an injunction bond, when it dissolves the injunction. It merely orders the dissolution, leav

that.

Wilde agt. Joel and others.

ing the obligee to proceed at law against the sureties, if he sustains damage from the delay occasioned by the injunction."

In California, the 120th section of the Practice Act of 1850, is in the precise words of the 222d section of our Code. In Russell agt. Elliott, (2 California Rep. 215,) an injunction was dissolved, and a reference ordered to ascertain damages. referee reported $300 due. The report was confirmed and judgment ordered for the amount and execution. It appears that this clause of the act was repealed after the proceedings, and the judge below set the judgment and execution aside. The court above ordered a mandamus to compel the entry of judgment. The constitutional question was considered, and the court held, that by entering into the undertaking, the parties had waived a trial by jury.

In Kelly agt. Lockwood, (1 Kelly's Rep. 72, Georgia,) it was held, that the judgment of the court fixing the amount of damages, was all that would be looked to in an action on the bond. I apprehend that the provision of the Code in question is legal, and that a reference establishes the amount of damages, so that they become finally liquidated as between the parties. Where there are sureties, this shows the propriety of directing notice to be given to them. I do not entertain a doubt as to this, so far as the mere quantum or nature of the allowance is concerned. Legal defences which are wholly independent will arise and may be taken in the action on the undertaking. I consider that there is not authority enough to warrant a judgment upon the bond for the amount recovered, even against the plaintiff and obligor. At least, it is certainly the safest course to bring an action upon it. In this connection the provision of the Revised Statutes, (2 R. S. 190, 195,) should be noticed. It is to be presumed that this remains in force. (Cook agt. Dickerson, 2 Sandford, 691.) It is enacted that the chancellor shall direct the delivery of any bond executed under the provisions of the article, to the person entitled to the benefit thereof for prosecution, whenever the condition thereof shall be broken or the circumstances of the case shall require

Wilde agt. Joel and others.

such delivery. (See section 423 of the Code.) I have generally declined to order the delivery up of the undertaking. An inspection to draw the complaint is all that is necessary, and upon the trial, the clerk can be subpoenaed to produce it in case of dispute.

The conclusions upon which the court without any difficulty agree, are these: 1st. The expenses of the reference to ascertain whether the assignment was made with intent to defraud, should not be allowed as damages, nor the fee upon the motion to confirm that report. This excludes the charge of $100, and of $10 for attendance fees before Mr. Sedgwick, and fee on confirmation of report.

2d. No compensation for preparing affidavits to show that the assignment was made in good faith, or for arguing that question, should be allowed. But a reasonable fee should be allowed for preparing to argue, and arguing a motion to dissolve the injunction, on the ground that the plaintiff had no cause of action, and no right to an injunction. If the parties cannot agree upon this, application may be made to the judge who heard the motion to dissolve, to adjust it, or a reference had.

3d. The commissions of Leeds, $72, which we understand to be his commissions upon the sales generally, is inadmissible. The sale took place; the commission would, in any event, have fallen on the fund.

4th. The interest on the $600, allowed by the referee, $122, was properly assessed. This, it will be seen, disposes of the items of $100, the fee of arguing before Judge DUER, and of the $25, before Judge PAINE. They must be rejected, and what shall be deemed proper as now indicated, be substituted. The $15 is allowed.

5th. The majority of the judges who heard the case, concur in holding that the $50 allowed as damages to Messrs. Leeds, is a proper charge against the plaintiff upon this undertaking. And also, the one-third of $35, the referee's fees on the inquiry at Leeds' instance.

The Farmers and Mechanics' Bank of Rochester agt. Smith and others.

6th. A majority are also of the opinion, that the one-third of $100 which it is assumed was for Leeds' fees and charges of counsel in the three suits, ought to be allowed.

SUPREME COURT.

THE FARMERS AND MECHANICS' BANK OF ROCHESTER agt. EDWARD SMITH and others.

Section 152 of the Code confers no authority upon the court to strike out pleas simply as false. Nor was there any such practice before the Code. The provision is to strike out sham and irrelevant answers and defences.

As to irrelevancy, this section retains the old practice of the courts of expurgating pleadings of irrelevant and redundant matter as practiced in the court of chancery, upon exceptions for irrelevancy, and in the supreme court upon motion. Under the old practice a sham plea was a special plea setting up new matter, and tendering a fictitious issue. It was one presenting, apparently, a good defence, but which was, in fact, an ingenicus and subtle contrivance, false and feigned in its essential particulars. Falsity was and is an essential element in a sham pleading.

But a false pleading is no tam pleading, unless it also consists of new matter, and tenders an issue upo tome new allegations. The general issue under the old practice, was, therefore, never stricken out as a sham pleading. We have no general issue under the Code, but it allows what is in part equivalent-a general or specific denial of the allegations of the complaint. An answer confined to such denials cannot be sham under any definition of that term over received or recognized by the courts or the profession.

The truth of pleadings not sham or frivolous is to be tried, not upon affidavits, but by another tribunal, whether verified or unverified.

An answer may be frivolous or sham, verified or unverified, and may be struck out as sham, or overruled as frivolous, under section 247.

And when a motion is made to strike out an answer setting up new matter as sham, verified or unverified, and the motion is not opposed, or is not met by affidavit, showing that it was put in in good faith, together with an affidavit of merits, it should be granted.

But where the defendant substantially re-affirms the truth of his answer, and makes an affidavit of merits, the answer should stand. The remedy for false swearing in such cases is with the grand jury, and the trial of the truth or falsity of the pleadings belongs to another forum.