Ball agt. Sprague. above cited. It is inadmissible on the same ground that a new trial will not be granted, though there be material evidence for the party against whom the verdict has passed, which has not been adduced, unless it be shown to have been discovered after the trial, or unless the verdict has been obtained by fraud or surprise. The language of Judge SPENCER, in Beebe agt. Bank of New York, (1 John., 555,) shows the reason of the rule, and is applicable to cases of this kind. He says: "If mistake in practice or inadvertence in attention, furnished reasons for a new trial, it would encourage litigation, and reward ignorance and carelessness at the expense of the other party." Again this application is not made on the ground of strict right of the defendants to the relief asked, but is addressed rather to the conscience of the court, its sense of right and equity; and the relief, if granted, must be granted as a favor to the defendants. The costs stricken out of the bill, under the order now sought to be modified, amounts only to the sum of $6.78. If the favor which the defendants ask could be granted, it could only be under the well settled rule in such cases, on payment of plaintiff's costs of opposing this motion. The court is not inclined to favor the making of such motions, when it is evident that some object other than the ostensible one is sought by them. It cannot be that the defendants have come here, merely to avoid the payment of the $6.78; but they must have come for some purpose, or with some motive not shown to the court. If the defendants were seeking a strict right, this would be of no consequence. But when the favor of the court is appealed to, this should be regarded, and the court will not incline to graut as a favor what is not shown to be for the advantage of the party asking it, and when it is to be inferred that the motion is made for some concealed purpose. I do not see any ground on which the motion ought to be granted. It is therefore denied, with $10 costs of opposing. Cantor agt. The People. SUPREME COURT. JOHN A. CANTOR agt. THE PEOPLE. A defendant cannot be convicted of a crime upon hearsay evidence. And where such evidence is admitted without objection by the defendant, at the time, he will not be prejudiced, if his subsequent objections to testimony cover the same facts included in the admitted evidence. New York General Term, May, 1862. INGRAHAM, LEONARD and ROSEKRANS, Justices. THE prisoner was convicted in November, 1861, in the court of sessions of this city, of passing counterfeit money. He was indicted for a second offence. At the time the money was passed by the prisoner he had with him a man named Burns. Soon after the money was passed both were arrested. After the arrival of the prisoners at the station-house, a boy came in with a roll of bills, which he said prisoner had thrown away. Cantor was convicted and sentenced to ten years and five months in the state prison. The case came up on a writ of error, several exceptions upon matters of law having been taken on the trial by prisoner's counsel. HENRY L. CLINTON, for prisoner. S. B. GARVIN, for people. By the court, ROSEKRANS, Justice. The declaration of the person who brought to the officer who arrested and searched the defendant the sixteen bills which were offered in evidence by the public prosecutor, that the prisoner had thrown away the bills, and that the person who made the declaration picked them up, was merely hearsay evidence, and did not establish the fact which he alleged. Although such declarations were admitted without objection on the part of the prisoner, his subsequent objection to the intro Fassett agt. Tallmadge. duction of the bills in evidence, and to proof that they were the bills said to have been picked up by the person who made the declaration, was proper and timely, and should have been sustained. These bills, in connection with proof that they were counterfeit, furnished the principal evidence of knowledge by the prisoner that the bill passed by him was counterfeit, and thus effected his conviction. For these reasons the conviction should be reversed and the case remanded to the court of general sessions for a new trial. SUPREME COURT ELIAS FASSETT agt. SAMUEL W. TALLMADGE. Where in an action to set aside a conveyance for fraud, the court declared the sale made to the vendee to be fraudulent and void as against the plaintiff, and all other creditors of the vendors who should come in under the plaintiff's judgment; and ordered that the defendant (the vendee) pay to a receiver appointed by the court a sum of money for the property so received by him, with costs against the defendant, Held, that an execution against the person of the defendant could not be issued after an execution against his property, returned unsatisfied, to enforce the payment of the money ordered to be paid to the receiver. In such case, the defendant cannot be charged with contracting a debt or incurring an obligation to the plaintiff for which he might have been arrested under § 179, sub. 4 of the Code. New York General Term, May, 1862. INGRAHAM, LEONARD and ROSEKRANS, Justices. THIS action was brought to set aside a conveyance made by a debtor of the plaintiff to the defendant Tallmadge, on the ground that it was fraudulent and void as to creditors. The court so deemed it, and ordered the sale made to Tallmadge to be declared fraudulent and void as against the plaintiff and all other creditors who should come in under said judgment, and the defendant Tallmadge to pay to a Fassett agt. Tallmadge. receiver appointed by the court a sum of money for the property so received by him. The judgment also ordered that the plaintiff should recover against the defendant his costs. An execution was issued against the defendant's property for the costs, which was paid. An execution was also issued for the moneys directed to be paid to the receiver, which were not collected, and an execution against the person was then issued against the defendant, without any order of arrest either before or after the judgment. The defendant has moved to set aside the execution as irregular, which was granted at special term, and the plaintiff has appealed. DORMER B. EATON and WM. C. HORNFAGER, Jor appel't. By the court, INGRAHAM, P. Justice. By section 288 of the Code, an execution can only be issued against the person in one of those cases in which the defendant might have been arrested under sections 179, 181. None of the subdivisions of section 179 relate to an action in which fraud in contracting the debt or obligation exists, except the fourth, and that applies only to a case where the fraud was committed in contracting the debt or incurring the obligation for which the action is brought. I am at a loss to understand how the defendant can be charged with contracting a debt or incurring an obligation to the plaintiff. The plaintiff's action rests on a supposed fraud perpetrated by the vendors to the defendant, with intent to defraud the creditors of the vendors. It is not even necessary to maintain such an action, that the vendee should be a party to the fraud, knowingly. He may know of sufficient facts to charge him with notice, and yet, as a vendee, be innocent of any actual fraud in making the purchase, and still the court would declare the sale fraudulent. The same thing might occur in the case of an assignment for the Fassett agt. Tallmadge. benefit of creditors, where the assignee might be entirely free from any actual fraud, and yet the assignment be declared fraudulent and void. To hold that under such circumstances the vendee or assignee is guilty of fraud in contracting an obligation, and therefore liable to arrest, would be at variance with all the provisions of law since the act of 1831 abolishing imprisonment for debt. case. When this case was before Mr. Justice MULLIN, on a motion for an attachment, he seems to assume that the defendant was liable to arrest. He says: "This defendant is, I presume, liable to be imprisoned on execution in this Fraud is charged and proved, and in such an action the body of the defendant may be arrested and imprisoned." For this he cites section 179 of the Code, and 3d Revised Statutes, 126, § 1, being the first section of the act to abolish imprisonment for debt. With the great respect I entertain for the opinions of this learned justice, I have hesitated to dissent from the views thus expressed by him. But I cannot resist the conclusion that he has overlooked a requisite in both statutes referred to, which would materially alter the case. The first section of the act to abolish imprisonment, and section 179 of the Code in the 4th subdivision, are expressly confined in their operation to cases of contract, or in which the debt is contracted or an obligation is incurred. Neither of them apply to a case like the present where the action is a proceeding in equity to set aside a conveyance or assignment of personal property. It seems to me also that the learned justice has overlooked the real party who is guilty of the fraud. In ordinary cases of this character the party making the sale or conveyance, and not the party receiving it, is the one who is guilty of fraud. A reference to the interlocutory judgment will show that it was the sale, and not the act of the defendant Tallmadge, that was declared void. And the final decree recognized as valid, judgments made by Tallmadge to the firms who |