The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-01-29
Common Pleas. Special Term.

teDdsnt moved on a renewed motion To oe ala
charged from sIIes. Tie action was 70 recover
damages for an alleged rauc in the sale OF personal
property BY the sfdayit for obtaining the orderof
arrest II appeared that de'endipt sold the plaintiff
beads which he represented To be coral and that he
had purchased them 10 France during the revolution
and could therefore sell them below their value; that
defendant bought them, relying such assurance;
that be sent them 10 Africa aud there discovered
that the beads we're spurious article, and not
coral, and only worth FL instead Of sl4 per string
q similar article to one Smith as coraline and adj
mitfed 1t to be an imitation. Upon this statement
there was sufficient TO warrant holding che defendant
to BAIL It appeared that he made represent atoms Is
to the article sold which were not trae aud that ne
bad the knowledge OF the beais being imitation, and
not real. On the affidavit on the first motion the
defendant stated that he brought the beads nom
England and believed them to be Of an inferior qua
ty Of coral at cost Of about IS per string; that
when be offered them to the plaintiff at SIS
per strng, the latter objected that they could
not be coral at that prise, and that he replied that
be them for coral and some OF the best judges
SAID that they were and some said they not that
be LETT sample for examination from :tober till jan
usry and that in the latter part Of January paintpur
chased nom defendant his remaining stock at and
that at the foot of the bill written an agreement
that II the beads were not coral they we're, within
certain time 70 be returned paid for by the de-
fendant; that in March following the plaintiff bought
OF the def ndant thirty small necklaces OF the
same beads, and that at that time the plaintiff said
he was fully aware OF the article he was buying.
Other afidavts we're used 10 strengthen the states
ments made on both sides but not materially varying
the statements Of The respective parties The motion
founded On these uapers was denied. on the ground
that the original sffdavits made Out priaa flcte
case Of rand and that the question Of fraud could
not he tried by the Ju1ge wso also gave the defend
art liberty TO renew the notion On this motion,
now made, the application for discharge from arrest
isrenewed In addition to the papers heretofore
used, the defeI dant, by other affdavis, explains
some Of the previous charges against him, and
shows other sales u daalers in this city, In one
of which he deduc ed about one.seventh from the
price, and made sales 10 Others at about ~ less than
the Price paid by plaintiff without complaint,
and that of the purchasers at the time
Of purchase inst they rot coral The plain
THIS affidavit in answer show hat the beads were
imitation. Upon tbs renewed notion the same rea-
tons that operated upon the mind OF Judge Wood
ruff to deny the motion render il PROF erthat the mo-
ton for discharge from arrest should be denied
The plaintiff has made out on his part suf lent
prima face 10 warraut the arrest and au that
il contained in the defendants aidayits only serve
to answer. the charge. III they could properly be
considered on this motion, the Judge, on motion 70
discharge from bail, would, oy the question Of fraud
which, in fact, is the only question 10 tds case for
if the plaintiff cannot make OUT the fraud he cannot
recover in the action II would be manfestly i'm
proper on such o preliminary motion to Try the
question, although am free to say that there are
circumstances In the case connected with this pur
chase the part of the plaintiff, both in the
statements made by him previous 70 the
purchase, and iii the stipulation which he
required allowing the return of the beads if
not ctral, which led me very much to doubt
whe her In reality the plaintiff could have been de-
ceyed as TO tire quality Of the aricIe which he Dur
chased, and unless the representations such as
to deceive the plaintiff he could not recover even II
they were untrue But, slhough Il is not proper to
try that question on this notion and the defendant
must be held to bail CD the original charge, still it Is
proper to look into the papers for the purpose OF re-
ducipg the amount Of bail, if excessive He is now
held 10 boil on $4,000. The amount Of the purchase
was s2.47S The plaintiff admits the BEADS to be
werth $l77. The other evidence in the case shows
that similar strings OF beads were sold at reduction
OF about one seventh from the price paid by the
plaintiff. That the plaintiff in March following
made second purchase OF the necklaces at price
very near the same rates, aud at That time the plain
tiff stated he knew what he was purchasing. / am
OF opinion that The amount OF bail required Of the
defendant should be much less than the amount fix
ed in the order Of arrest II the plaintiff
damages for the AL. ged fraud he only be injured
TO the amount Of the difference between the price
paid and the actual val8e. The order in this case
however, only asks for discharge from arrest and
rot for mitigation 0. bail am other relief Pro
perry IN this order / cabnot recuce the amOuut in
which the defendant is held to bait but make these
suggestions that the plaintiff may conenttoa geduc-
ton Of the amount without the necessity of further
order. II not, the defendant may apply for miti-
CATION OF the amount. This motion is denied with
out prejudice to such an apollo ,tion.
As.t Us. Baz-The clerk allowei as part OF the
costs in this case the charges provided in the of
an appeal from judgment rs apollo iole to q motion
peal before argument sl5. Costs on appeal for ar
gument, $50.
Before the amendment Of 1852, to the code, these
charges were alloa ed by some o! the Judges as
properly taxed on gu appeal from order at special
term deiyiDg new trial Since the amendment Of
the code, however, there be no doubt that such
charges are not taxable, and it Is plain that the
legislature did not iotend that charge to be made for
such servi ,e. The question then arises what charge
can be made for the service The counsel on the
authority OF Ellsworth vs.. Goodng, How l24, asks
for the same allowances In Of a trial. can.
not concur in the conclusions OF the learned Judge on
that point. motion for new trial Is not In any
sense rial of an ISSUE II 1t was, it would render
proper the charge OF preparing for trial which was
not allowed ia thai case. Is must he governed by
the same rule, whether the motion for new trial Is
on the ground Of surprise or newly discovered evil
dence, or on bill of exceptions, or case and yet,
no one Of them bat The last-that on case-renders
any Examination Of the merits Necessary. There is
provision for the cost Of this proceeding in the fee
bill, except the allowance for motion. II that Is
not enough, the power of the Court TO remedy the
evil by an extra allowance will furnish proper COM
peDsation. The amount Of s45 allowed by the clerk
must be reduced to $40.