
    BARNETT v. SELLING.
    
      Court of Appeals;
    
    
      October, 1877.
    Arrest.—Evidence. —False Representations.—Replevin.
    Replevin will lie, although the defendant has parted with the possession of the property, and it has passed beyond the reach of the process of the court.
    
    An order of arrest may be granted in an action to recover possession of a chattel, if the wrong-doer has disposed of it, to a Iona fide purchaser, or otherwise, so that it cannot be taken on process against the defendant.
    It is not necessary that he should have done so in contemplation of an action to recover it.
    
    One who buys goods by means of fraud, and sells them to a Iona fide purchaser who is entitled to hold them against the defrauded, seller, is liable to arrest in an action of replevin thereafter brought by the latter.
    It is enough to show that the goods were disposed of with intent to deprive the plaintiff of them.
    In replevin for several chattels an order of arrest will not be vacated, merely because plaintiff has no cause of action as to a part of the property for the removal or concealment of which the order was-granted.
    Where a check had been obtained by false representations and the money obtained upon it, and the check returned to the drawer, and was in his possession,—Held, that an action of replevin for it could not be sustained.
    
    Hence, an order of arrest could not be granted in respect of the claim, for the check.
    
      It seems, that it would be a good defense to an action on a bond or undertaking, given by a defendant in an action of replevin for the return of property sought to be replevied, that the plaintiff had the-possession thereof, and that it was impossible for that reason literally tc comply with the condition.
    
    Appeal by defendant from an order denying a motion to vacate an order of arrest.
    This action was brought by Solomon Barnett against Henry Selling, to recover possession of a check for $2,000, given by the plaintiff to the defendant, and also twelve packages of tobacco, of the value of $1,640, which the plaintiff alleged had been obtained from him by the false and fraudulent representations of the defendant.
    An order of arrest was granted under subdivision 3-of section 179 of the Code of Procedure. The affidavits on which the order of arrest was granted, showed that on January 16, 1876, the plaintiff sold and delivered to the defendant, twelve bales of tobacco worth $1,640, and on January 26, 1876, he also loaned him $2,000 by means' of Ms check for that amount upon the Bowery National Bank, which was paid to and received by the -defendant. That the defendant obtained the said money and goods by means of false and fraudulent representations, and with the fraudulent premeditated design, to cheat and defraud the plaintiff out of the same; and that he had disposed of the same with a like intent and ‘1 to deprive the plaintiff of the benefit thereof.” That the plaintiff had issued to the sheriff of the city of New York, where the defendant resided and did business, the summons and complaint in the action, and the affidavit of the plaintiff, and the requisition. and undertaking required by sections 206 to 209 of the Code of Procedure, and that the sheriff had served the summons and complaint on the defendant, personally, but had not found or taken any part of the property specified in the affidavit -and requisition, but had returned the same with the usual certificate in such cases.
    The defendant in his affidavit upon which the motion to vacate the order of arrest was made, stated that before the commencement of the action, and before any demand was made for its return, the defendant had sold and delivered the tobacco to his customers in the ordinary and usual course of trade, and that when the action was commenced, he neither had it or its control. He also stated that upon receiving the plaintiff’s check for which he gave his in return, and $30 in cash for the use of the money, he deposited it to his own credit, in his own bank ; that it was, in the ordinary course of business, presented at and paid by the plaintiff’s bank, charged to the plaintiff’s account, and returned to him. as a voucher, and now is and was in the plaintiff’s possession before the commencement of this action.
    This last allegation of the affidavit the plaintiff did not deny. The remainder of the affidavit contained a denial of the fraud alleged in the plaintiff’s affidavit on which the order of arrest was granted.
    The motion to vacate the order of arrest was denied, and this decision was affirmed by the general term, (reported in 9 Hun). The defendant appealed.
    
      Richard S. Newcombe, for appellant.
    I. An action of claim and delivery cannot be maintained for the check, because the plaintiff actually had it in his possession when the action was brought. None of the cases relied on in the court below were actions of replevin, but they were all actions of trover. In that form of action it is not disputed that damages might be recovered, although the article itself was in the plaintiff’s possession; but in replevin the article is sought to be recovered. Decker v. Mathews, 12 N. Y. 313, 319; Murray v. Burling, 10 Johns. 172; Bowen v. Fenner, 40 Barb. 383, 390, were actions for trover; Ford v. Williams, 24 N. Y. 366, was an action for trespass and trover and in no manner passed upon the question raised in this case.
    II. As the plaintiff had no right to maintain his action for the possession of the check, he had incorporated into the case a cause of action for which he had no right to have the defendant arrested, and that was fatal to any arrest in the action, even if the defendant could be held as to the residue of the claim.
    ITT. The defendant, upon the facts asserted by the plaintiff, was not liable to arrest under subdivision 3 of section 179 ; and to maintain the warrant it must appear that the defendant concealed, removed or disposed of the property to prevent its being taken (Roberts v. Randel, 3 Sandf. 707; Manley v. Patterson, 3 Code R. 89; Watson v. McGuire, 33 How. Pr. 87; Reimer v. Nagel, 1 E. D. Smith, 256; Pike v. Lent, 4 Sandf. 650; Sherlock v. Sherlock, 7 Abb. Pr. N. S. 22).
    IV. The plaintiff by his own showing most effectually proved that the defendant had not “removed, concealed, or disposed of, [it] so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken,” as he himself swore that the defendant, prior to the commencement of the action, sold the property for cash, &c.
    
      A. R. Dyett (R. W. Townsend, attorney), for respondent.
    I. For the purposes of this appeal it must be presumed, on all the affidavits, that the judge at special term was authorized to find that all the allegations and charges made by the plaintiff in the affidavits on which the order of arrest was granted, were true, and that a clear, palpable fraud was perpetrated by the defendant, with deliberate intent to defraud and cheat the plaintiff out of the tobacco and the $2,000 check (Brown v. Montgomery, 20 N. Y. 287; Nicholas v. Michael, 23 Id. 264; Hennequin v. Naylor, 24 Id. 139; Viele v. Goss, 49 Barb. 98; Pike v. Wieting, Id. 314; Byrd v. Hall, 1 Abb. Ct. App. Dec. 285; Durell v. Haley, 1 Paige, 493; Waterbury v. Sturtevant, 18 Wend. 361; Ash v. Putnam, 1 Hill, 303, 308; Cary v. Hotailing, Id. 311; Olmsted v. Hotailing, Id. 317; King v. Phillips, 8 Bosw. 603; Devoe v. Brandt, 53 N. Y. 462).
    II. It was at one time held that replevin could not be maintained where the defendant had parted with the possession of and control over the property, especially where he had done so to bona fide purchasers (Brockway v. Burnap, 12 Barb. 347; reversed in 16 Barb. 309; Nash v. Fredericks, 12 Abb. Pr. 147; Reimer v. Nagel, 1 E. D. Smith, 257; Roberts v. Randel, 3 Sandf. 707; Pike v. Lent, 4 Id. 650). But the court, in those cases, did not discharge the defendant, and required, nevertheless, an undertaking in the usual form. These cases were decided before the amendment of 1851, by which the following words were added, viz.: "And with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.” The latter intent, being preceded by the disjunctive conjunction “ or,” separated it from the previously specified intent, and made it independent thereof. And it is now settled by repeated adjudications that replevin may be maintained, although the defendant have not only parted with the possession of and all control over the property, but has sold and disposed of the same to bona fide purchasers (Ellis v. Lersner, 48 Barb. 539; affirmed in Commis. of Appeals; Dunham v. Troy, &c. R. R. Co., 1 Abb. Ct. App. Dec. 565 ; Ward v. Woodburn, 27 Barb. 346-353; Savage v. Perkins, 11 How. Pr. 17; Drake v. Wakefield, 11 Id. 106).
    III. The judge was justified in finding that defendant specifically intended to prevent the plaintiff from obtaining the possession of the property by an action of replevin and proceedings for the delivery thereof in limine, and must be presumed to have done so.
    IV. Plaintiff had a right to maintain replevin for the check (Murray v. Burling, 10 Johns. 182; Decker v. Mathews, 12 N. Y. 319 ; Bowen v. Fenner, 40 Barb. 383, 390; Ford v. Williams, 24 N. Y. 359, 366; Reynolds v. Shuler, 5 Cow. 323). It is the conversion of the property which gives the right to maintain replevin, wherever trover or trespass de bonis would formerly lie.
    V. Plaintiff could clearly maintain the action for the tobacco, and could only be put to his election either to have the amount of the undertaking reduced to the extent of the $2,000 check, or to have the usual undertaking for the whole amount.
    VI. In this, case, beyond all question, trover or detinue before the Code could have been maintained for both. As defendant had answered, the demand for relief was not material (Code, § 275; Marquat v. Marquat, 12 N. Y. 341; Emery v. Pease, 20 Id. 62 ; Armitage v. Pulver, 37 Id. 494; Weatherby v. Wood, 29 How. Pr. 404; Beach v. Cooke, 28 N. Y. 508; Barlow v. Scott, 24 Id. 40; Scott v. Pilkington, 15 Abb. Pr. 280; Colton v. Jones, 7 Robt. 164; Brockway v. Burnap, 16 Barb. 313; and Reviser’s note, 3 R. S. 767, there referred to.
    
      
       Overrules Sherlock v. Sherlock, 7 Abb. Pr. N. S. 22.
    
    
      
       Overrules or qualifies Watson v. McGuire, 2 Daly, 219; Pike v. Lent, 4 Sandf. 650; Roberts v. Randel, 3 Id. 710. And see Nash v. Fredericks, 12 Abb. Pr. 147; Dodworth v. Jones, 4 Duer, 201.
      The provision of the former Code, under which the case in the text arose, is as follows : “§ 179. The defendant may be arrested . . . 3, in an action to recover the possession of personal property unjustly detained, where the property or any part thereof has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with the intent that it should not be so found or taken, or with the intent to deprive the plaintiff of the benefit thereof.”
      The provision of the Hew Code of Civil Procedure, which takes the place of the foregoing, is to the same effect. It is as follows : “ § 550. A defendant may also be arrested ... 1, in an action to recover a chattel, where the chattel or a part thereof, has been concealed, removed or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof.”
    
    
      
       Compare as to replevin for securities, Schroeppel v. Corning, 5 Den. 236; Clowes v. Hawley, 12 Johns. 484; Hodges v. Latkrop, 1 Sandf. 46; Knehue v. Williams, 1 Duer, 597.
    
    
      
       See Chappel v. Skinner, 6 How. Pr. 338; Tracy v. Veeder, 35 Id. 210; 50 Barb. 70; Nosser v. Corwin, 36 How. Pr. 540; Christie v. Corbett, 34 Id. 19; Savage v. Perkins, 11 Id. 17 ; Tracy r. N. Y. & Harlem R. R. Co., 9 Bosio. 396 ; -Moore ». Westervelt, 1 Id. 357.
    
   Allen, J.

[After reiterating "the rule that replevin lies, although the defendant has parted with the possession of the property, and the same is beyond the reach of the process of the court, and reciting subd. 3 of section 179 of the Code of Procedure, as to arrest in these cases, proceeded as follows :]

To authorize an order of arrest, therefore, there must be a concealment, removal, , or disposal of the property or some part thereof, with intent either to defeat the process of the courts or to deprive the plaintiff of the benefit thereof—that is, the property. An intent to put the property beyond the reach of the owner by selling it to a bonafide purchaser, when such a transaction would avail for the purpose, or by so changing its form that it could not be identified, or by concealing it, or by any other act, will authorize the order, although the fraudulent actor may not contemplate an action at law to recover the specific property. When, as is alleged and appears by the affidavits on which the order was made, possession of the property has been acquired fraudulently and under circumstances justifying a reclamation of it by the owner, and the fraudulent purchaser has sold .the property with intent to perfect the fraud and put the property beyond the reach of the owner, the intent “to deprive the owner of the benefit thereof ” contemplated by the act is established, and the case is not only directly within the letter of the statute law, but is also within its spirit. Any other interpretation would deprive the last words of all meaning, as they would add nothing to the other provision of the statute.

Every act done with intent to evade the process of the court and deprive the plaintiff of the benefit of his action is provided for and made the ground of an arrest in the preceding clauses, and the last paragraph was added to cover a very different fraudulent intent.

The decisions of the courts of original jurisdiction may not be entirely harmonious, and yet, in view of the fact that some of them have been made under the statute as it was before the amendment of 1851, and others before the principle enunciated in Nichols v. Michaels had been authoritatively decided and may well have been considered in doubt, there is no real conflict. Many of the opinions are able and interesting, but under the changes in the law need not be referred to, as they do not throw much light upon the reading of the present statute.

Assuming that the purchase of the goods was fraudulent, and that they were disposed of with intent ‘ ‘ to deprive the plaintiff of” them, the case was one for an order of arrest. A prima facie case was made of the fraud in the original purchase, and of the intent with which the goods were sold. It follows, therefore, that we cannot interfere with the order so far as the value of the tobacco is concerned. But while we cannot review, upon this appeal from an interlocutory order, the cases holding that the action is maintainable in respect to the tobacco, and upon the merits discharge the order, we are not concluded in respect to the check included in the same action.

The giving of the check by the drawer was but the loan of the money represented by it to the payee. It was but the written authority of the lender to the depository of the money to pay the amount to the defendant, and when it was delivered to the drawee and the money paid thereon, it had accomplished its purpose and was functus officii, except as a voucher in the hands of the payee in his settlements with the drawer. A verbal order acted upon by the depository or debtor of the drawer would have been as effectual and served the same purpose as the written order. It is not necessary to say that trover might not have been brought for the check within the principle of Murray v. Burling, 10 J. R. 172, but a' check when it has performed its office can hardly be the subject of replevin, and if the plaintiff has it in his possession the sheriff cannot return that it has been eloigned or cannot be found to deliver to the plaintiff. If the tobacco had by any means come to the possession of the plaintiff, the action of replevin would not lie, although trespass or trover might for the original tortious taking or detention. When the plaintiff admits the possession of property, there can be no occasion for an action to recover the possession. He has to make an affidavit that the “property is wrongfully detained by the defendant,” &c., and also the “actual value” (Code, § 207). The property is not detained, and what is the actual value of a canceled check ? The defendant may give security for a return of the property (Id. § 211). I do not see why it would not be a good defense to an action upon such a bond, that the plaintiff had the possession, and that it was impossible-for that reason literally to comply with the condition. Again, the judgment must be for a return of the property, and it is executed the moment it is rendered (Id. § 277). The affidavit that it “has been concealed, removed or disposed of ’ ’ which is required for an order of arrest in the action, is necessarily untrue, and the plaintiff cannot make an affidavit in compliance with the statute. But the check, when paid and canceled, is of no value as property. The conversion of a note has respect to the time when the owner is deprived of it, and when it had value, and hence an action of trover lies to recover its value at that time ; but replevin would not lie by the maker for a paid and canceled note which was in his hands. An action in this form cannot be sustained for the check, and the order of arrest must therefore be modified by reducing the amount to two thousand five hundred dollars.

All the judges concurred.  