1828.

there was nothing unlawful in restricting an auctioneer to cer- Oct. Term, tain limits, and this opinion is supported by a case decided in Pennsylvania. [11 Serg. & Rawle's Rep. 87.]

The doctrine of Chancellor Kent, as laid down in his Commentaries. [vol. 2 p. 425.] does not apply to a case like the present; but has reference entirely to the unlawful "puffing" of goods at auction to enhance their prices.

But the restriction set forth in the declaration, in this case, does not apply to the defendant, in his capacity of auctioneer exclusively: he had a right to dispose of the goods at private sale, but still the restriction would remain. We do not say that he has sold the goods at auction, for a sum below our limits; but the averment is, that he has sold the goods at a price below that to which he was restricted. In what manner he has disposed of them does not appear; and the court will not infer that they were sold at auction, unless such inference is inevitable.

The two counts objected to, are framed from precedents given by Mr. Chitty in the 2d vol. of his treatise on Pleading, p. 162. The substance of the first count is, beyond all question, good, and if there be any defects of form, they should have been taken advantage of, by special demurrer. If either of the counts be good, the court will, upon a general demurrer to both, give judgment for the plaintiffs.

Per curiam. The first count of the declaration is good in substance, although defective for duplicity, in assigning the breach of the defendant's contract. His agreement was not in the alternative "to render a just and true account," or "to pay "the sum set forth in the declaration. The same neglect to account was not, of itself, a breach of the defendant's undertaking, and the action is evidently brought, to recover the difference between the sum for which the goods were actually sold, and that to which the

Wolfe

V.

Luyster.

Oct. Term, 1828.

Wolfe

V.

Luyster.

defendent was restricted. But a defect in the declaration for duplicity, cannot be taken advantage of by general demurer: it must be specially pointed out, and the defendant cannot therefore avail himself of it, in the present state of the pleadings.

- If these goods were to be sold by the defendant at auction, it does not follow that the contract between the parties was corrupt, because the plaintiff limited the sale of his goods to a specific sum. It might be, that he directed the defendant to offer them at, or not below, a certain price; and there certainly would not be any thing unlawful in such a direction. But the first count does not state that the defendant undertook to sell the goods at auction. It does not appear that they were not actually disposed of at private sale; and there is nothing in the declaration which compels the court to infer a sale by auction. The declaration, it is true, commences by setting forth that the defendant was an auctioneer; but there is no allegation that he received the goods as auctioneer, or that they were to be sold at pulic auction. The averment is, that the goods were disposed of for a sum below that limited by the plaintiff; but the capacity in which they were received, and the manner in which they were sold, no where appears upon the declaration. It comes then simply to this, that the defendant received a certain quantity of goods of the plaintiff, under an agreement that he should not part with them, for a sum below a particular amount specified. In violation of this contract, he sold the goods at a price below the limits fixed by the agreement, and the plaintiff brings this action for the injury thus sustained. There is nothing upon this state of facts to prevent his recovery upon the first count.

But the second count is clearly bad upon the face of it. The contract, on the part of the defendant, was to sell the goods, and account for the proceeds: and it is evident that he cannot be in default before they are disposed of. He did not undertake to sell the goods, at all events; but his promise, as set forth in the declaration, was, not to part with them for less than a fixed sum. If, therefore, the goods have not been sold, the defendant is not yet answerable; and there is no averment in the second count of a

1828. Joseph Barlow The Eagle Fire Ins. Čom.

V.

sale of any kind either above or below the fixed limits, while the Oct. Term, breach is for not accounting. Until a sale takes place there can be no violation of the contract; and as this count contains no averment of sale, it is clearly bad, for the want of it. But whereever there is a general demurrer to a declaration, consisting of seeral counts, if any one of them prove good, there must be judgment for the plaintiff. In this case, therefore, as the first count is in substance good, there must be judgment for the plaintiff upon the demurrer.

Judgment for the plaintiff on the demurrer.

[S. B. H. Judah, atty. for the plff. H. M. Western, atty. for the dfft.]

JOSEPH BARLOW

versus

THE EAGLE FIRE INS. Co. OF THE CITY OF NEW-YORK.

Taxation of costs. Preliminary proofs, in an insurance cause, are not to be taxed in the plaintiff's bill of costs.

The plaintiff cannot charge for drafting as many svbpænas as he has witnesses: but must prepare one draft, and from that engross the others.

THE attorney for the plaintiff in this cause, in preparing his bill of costs, charged for drafts and copies of the affidavits of five different persons, whose testimony was necessary to establish the preliminary proofs of the plaintiff, and also for administering the oaths. He likewise charged for the notarial certificate, copy and seal, together with inventories to be annexed thereto, and copies to be served: and also for the draft of a separate subpæna for each witness summoned, and for engrossing copies for each subpæna. These items being contested on the taxation, it was submitted to the court to decide, whether they were taxable, and to what ex

Oct. Term, 1828.

Joseph Barlow

v.

The Eagle

Fire Ins. Com.

Mr. Anthon, for the plaintiff, contended,

I. That the preliminary proofs were necessary proceedings in the cause, and therefore taxable. In Corlies v. Cummings [7 Cowen, 157.] the Supreme Court considered the words of the fee bill as entitled to a more liberal interpretation than was given to them in the case of Kenny v. Van Horn, [2 John. R. 107.] the statute being broader than the act on which that decision was founded. That the preliminary proofs are proceedings in the cause, within the meaning of the act, was evident from the fact, that they are to be produced at the trial, and the judge is to pass his opinion upon their sufficiency.

II. That each subpæna under the seal of the court is a new writ, and taxable as such. It was not the mere engrossing of a prior writ: foreach subpæna requires anew præcipe, and a new seal, and all the power over the witnesses named therein was derived from the indentical writ, and not from any prior writ, of which it is supposed to be an engrossed copy. That therefore every new subpæna, required in the cause, was taxable as a new writ.

The Court, however, disallowed all the items relative to the preliminary proofs; but permitted the plaintiff to charge for drafting and engrossing ONE subpana, and for engrossing one copy, to be sealed for every four witnesses.

[Edward Anthon, Atty. for plff. J. O. Grim., Atty. for deft.]

BENJAMIN HARROD

versus

FRANCIS BARRETTO, Jun., CHARLES N. S. ROWLAND, JAMES
B. MURRAY, AND SAMUEL WHEELER.

In an action upon a judgment obtained in the courts of another state, it is competent for the defendant to show, by a special plea, that the court in which the judgment was rendered had no jurisdiction, either of his person or the subject matter. But every presumption is in favour of the jurisdiction of the court which rendered the judgment; and the plea must negate, by positive averments, every fact from which that jurisdiction might arise.

Where, therefore, to an action of debt on a judgment obtained in the "Court of Common Pleas for the county of Suffolk in the commonwealth of Massachuseets," the defendants pleaded, that at the time of rendering the said judgment, and from the time of the commencement of the action upon which the same was fouuded, up to the time of its rendition, they "were, and ever since have been, inhabitants and residents of the city of New-York," and "never were inhabitants of, or residents in, the state of Massachusetts, nor subject or amenable to the laws" of that state, "nor within the jurisdiction of any of its courts;" that "the first process was never served upon them," "nor did they, or either of them, ever have any notice of said suit :" the plea was held to be bad upon demurrer, because it did not contain a direct and positive averment, that the defendants had not appeared in the suit in which the judgment was obtained.

THIS was an action of debt on a judgment obtained by the plaintiff against the defendants, in the Court of Common Pleas for the county of Suffolk in the state of Massachusetts. The defendant Murray suffered judgment to go against him by default, and Wheeler was returned by the sheriff, "not found." But Barretto and Rowland appeared and pleaded, "that they ought not to be charged with the said supposed debt, by virtue of the said supposed judgment in the said declaration mentioned," because "at the time of the commencement of the suit in which the said supposed judgment was rendered, and at the time the said supposed judgment was rendered, and during all the time between the time of the commencement of the said suit, and the rendering of the said supposed judgment, the said defendants" "were, and ever since have been, inhabitants and residents of the city of New-York in the state of N. Y. and never were inhabitants

Oct. Term, 1828.

Harrod

V.

Barretto et al.