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


tepdsnt moved. on a renewed motion, to % dis
charged from srrest Tie aetiou was 10 recover
damages for an alleged fraud IN the sale personal
property BY the affidavit for obtaining the ordero
arrest u appeared that de'endaur solo the plaintiff
beads which he represented TO be coral, and that he
had purchased them u France during the revolution,
and could therefore sell them beow their lue; that
defendant bought them, relying on such assurance;
that be sent them 10 Africa, and there discovered
that the beads we're spurious article, and not
coral, and only worth 81 instead Of sl4 per string.
1t also appeared that deeudant had previously sold
q similar article to one Smith as coraline and adj
mitted IL to be an imitation. Upon this statement
there was sufficient to warrant holding the defendant
to bail It appeared that he made represent as
to the article sold which were not true ana that he
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
lily Of coral. at cost Of about $S per string; that
when be offered them to the plaintiff at SIS
per string, the latter objected that they could
not be coral at that price, and that he replied that
he bought them for coral aud Of the best judge
said that they were and some said they were mott that
be left sample for examination from stober till jan
uary 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 were within
certain time 10 be returned ana paid for by the de-
PENDANT; that in March following the plaintiff bought
OF the def ndant thirty seven 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 affdavits were used TO 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 sitidavlts made out prtma facie
care OF fraud, and that the question Of fraud could
not he tried by the Judge, also gave the defend
ant liberty to reuew the motion. On this notion
now made the application for discharge from arrest
isrenewed. In addition to the papers heretofore
used, the defer dant, by other afiidavits explains
some Of the previous charges against him, and
shows other sales to deaera in this city, in one
Of which he Ge6uc'ed about one-seyenth from the
price and made sales TO Others at about ~ less than
the price paid by plaintiff without complaint,
and that enc If the purchasers aware at the time
Of purchase that they ware rot coral The plain
ttl- affidavit in show hat The beads were an
imitation. Upon this renewed motion the same rea-
IONS that operated upon the mind OF Judge Wood
ruff to deny the motion lender il proIertha. the mo-
ton for discharge from arrest shoald be denied.
The plaintiff has made out on his part sutli Gent
p,ima face 70 warrant the srrest, and au that
Is contained in the defendants affidavits only serve
to answer. the charge. Ii they could properly be
considered on this notion, the Judge, motion 70
discharge from bail, would, oy the question Of fraud
which, in fact is the only question ia this case for
if The plaintiff cannot make out the fraud lie cannot
recover in the action. IL would be maniiestly inn
proper on such a preliminary motion to try the
question, although am free to say that there are
circumstances In the connected with this pur-
chase on the part Of the plaintiff both in the
statements made by him previous to the
purchase, and III the stipulation which he
required, allowing the return of the beads If
not coral, which led me very much to doubt
whether in reality the plaintiff could have been de-
ceived as to tire quality Of the arcce which he pur
chased and unless the representations were such as
to deceive the plaintiff he could not recover even II
they were untrue. Bot, slhoueh 1t is not proper to
try that question on this motion, aad the defendant
must be held TO bail the original charge, still it Is
proper TO look into the papers for the purpose OF re-
ducipg the amount OF bail IL excessive. He Is now
held 10 boil ON $4,000. The amount Of the purchase
was STATS. The plaintiff admits the beads to be
wcrth $l77 The other evidence in the case shows
that similar strings OF beads were sold ut reduction
OF about one seventh from the price paid by the
plaintiff. That the plaintiff in March following
made second purchase OF the neckl aces at price
very near the same rates, aud At tnat time the plain
tiff stated he knew what he was purchasing. / am
OF opinion that The amount OF bail required Of the
defendant ehoulc be much less than the amount fix
ed in the order Of arrest. II the plaintiff
damages for the alleged fraud, he only be injured
TO the amount Of the difference between the price
paid and the actual valge The order in this case,
however, only asks for discharge from arrest, and
rot for mitigation o. bail or am other relief. Pro
perry in this order | cabnnt Teouce the amouot in
which the defendant il held 10 bait but make these
suggestions that the plaintiff may con:entto Eeduc-
ton Of the amount, without the necessity OF further
order If not, the defendant may apply for rnit
CATION Of the amount. This motion is denied with
out prejudice to such an apollo ,tiou.
Az,lus. Bae.--The clerk Above as part OF the
costs in this the charges crowded in the case of
| an appeal from judgment apllc Die to motion
"
peal before argument, sl5. Costs appeal for ar.
| gument. $50.
Before the amendment If 1852 to the code, these
/ charges were allowed by some Of the Judges, as
properly taxed on appeal from an order at special
term der yiDg 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 otend that charge to be made for
such service. The question then arises what charge
can be made for the service The counsel, ON the
authority Of Ellsworth vs. Gooding How, l24, asks
for the same allowances IN Of trial. can.
not concur in tho conclusions OF the learned Judge on
that point A msti0n for q new trial is not in any
rial of an issue. If II 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 newly discovered evi.
dence or on bill of exceptions, or case and yet,
no one Of them bat The last that on q case-renders
any examination of the merits Necessary. There is
provision for the cost Of this proceeding 10 the fee
bill except the allowance for . motion If that is
not enough, the power OF the Court TO remedy the
evil by extra allowance will furnish proper com
pentation. The amount Of s45 allowed by the clerk
must be reduced to $40.