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Wilson o. Ryder.

G. G. Dutcher, for defendant-appellant.

P. C. Talman, for plaintiff-respondent.

McAdam, Ch. J.—The judgment in favor of the defendant effectually discharged the order of arrest, notwithstanding the plaintiff's appeal. The discharge is final, because the defendant cannot be rearrested upon the order of arrest, even if the judgment in his favor is reversed. The court cannot reinstate the order upon motion, although it may, in case of reversal of the judgment, issue a new order (Bowman v. Bowe, 40 lun, 489). Chancellor Kent, in Wood v. Dwight(7 Johns. Ch. 295) said: “When process is once discharged and dead, it is gone forever, and never can be revived but by a new exercise of judicial power. The same principle was declared in People v. Bowe (81 N. Y. 43; Bowman v. Bowe, supra).

The deposit stands in lieu of actual custody of the defendant by the sheriff. Like other species of bail, it is a substitute for the body, and, when the corpus is legally discharged, the substitute, which is accessory only, is discharged also.

This follows as a logical and necessary sequence. If the defendant had been in actual custody at the time of entry of judgment in his favor, he would have been immediately discharged from confinement. The discharge would have left the defendant as free as if no arrest had ever been made. The final judgment in favor of the defendant contemplated by section 585 of the Code has been rendered, and, in the language of the section, “the sum deposited must be refunded to the defendant.'

The order denying the motion for its return must therefore, be reversed, and the application granted, with costs.

HALL, J., concurred.

Crane v. O'Reilly.



SS 488, subd. 8, 499, 535.

Pleading- When complaint in action for libel does not state cause of action

- Practice in such cases where objection first raised at trial.

Where a libel did not necessarily refer to the person suing to recover

damages therefor, the complaint must allege in some issuable form that it was intended to be applicable to him, or it must follow the form prescribed by the Code of Civil Procedure and allege that the

defamatory matter was published of or concerning him. Where, in an action against a physician for libel in stating in a certificate

of death that the plaintiff's child died of “constructive and contributing negligence of parent,” but which did not indicate which parent, Held, that it did not necessarily refer to the child's mother, the father being alive, and that a complaint in an action by the mother to recover therefor, which did not allege that the libel was published of or concerning her, did not state facts sufficient to constitute a cause

of action. (Decided October 28, 1887.)

Appeal by plaintiff from a judgment entered by direction of the judge presiding at trial term, dismissing her complaint.

The opinion states the material facts.

Chas. J. Hardy, for defendant appellant.

E. P. Wilder, for plaintiff-respondent.

MCADAM, Ch. J.-The action is against the defendant, who is a physician, for libel in filing with the board of health a certificate of the cause of death of the plaintiff's

Crane 0. O'Reilly.

child, containing the following statement: “And that, according to the best of my knowledge and belief, the cause of death was as hereinafter given: 1. Chief and determining cause. Unknown. 2. Constructive and contributing. Neglect of parent.” The words complained of are contained in paragraph 2.

The action was originally commenced in the names of Gregory Crane and Winifred Crane, the parents of the deceased child. The defendant in his answer alleged “ that he was called upon by Gregory Crane, one of the plaintiffs, to attend said child, and made one visit thereto, and did prescribe for said child, and that the said Gregory Crane was at such time under the influence of liquor, and he then and still believes that the said Gregory Crane did neglect the said child, and that its death was influenced by such neglect.” The certificate imputes “neglect to parent" not parents. The language of the alleged libel, cannot be enlarged by construction. However, in interpreting its intent, it must be assumed, in a case like the present, where both the parents are living, that the author intended one, not both. The defendant in his answer names Gregory Crane as the one intended, and alleges that the certificate was true.

Instead of meeting the issue thus squarely presented, the plaintiff's attorney dropped the accused husband from the record, and continued the action in the name of the wife, against whom the answer carefully avoids charging the slightest neglect. If the innocent wife had been dropped from the record and the accused husband had insisted upon continuing the litigation to exculpate himself from the issue tendered by the defendant, we could readily observe the force and propriety of the amendment applied for.

The amendment was made, and, as no one complains of it, we will assume that it was rightfully allowed, and proceed at once to the real question presented by this appeal—to wit, whether the complaint, as amended, states a cause of action. The term “parent,” employed in the

Crane o. O'Reilly.

alleged libel, when applied to the case of a person whose father and mother are living, involves one of intent as to which parent was charged with neglect; and this question is ordinarily one for a jury to determine. It is an issuable, fact however, and as the term by its ordinary meaning does not include both parents, it is necessary, in an action by either to recover damages, to allege in the complaint that the term was used concerning the one complaining

In Gidney v. Blake (11 Johns. 54), and Maybee v. Fisk (42 Barb. 326), it was held that the words “your children (

' are thieves," “ your boys have stolen my coin," applied to all the children or boys of the person designated; that the words were not, therefore vague or indefinite, and that either might sue for the recovery of damages. If the term

' parents” had been used in the certificate filed by the defendant, either might have brought suit, for the libel would have sufficiently connected both without the aid of extrinsic matter.

If the words used in the two cases just cited had been “your child is a thief," or "your boy has stolen my coin," and the parent in the one case had several children and the pareut in the other had several boys, the cases cited would have presented the question that arises here, and in that instance, just as in the present case, the parent complaining would have to connect himself with the libel by allegations that he was the person referred to therein; for the court could not, in the absence of such an allegation, arbitrarily decide which “child,” “boy,' or "parent" was the object of the defamation.

In view of this circumstance, it has become a rule of pleading, that if the words employed in a libel do not necessarily refer to the person complaining, he must allege in some issuable form that they were intended to and were understood by others to be applicable to him, or the complaint must follow the form prescribed by the Code and allege that the defamatory matter was

Kantrowitz o. Kulla.

published of “and concerning the plaintiff” (Code Civ. Pro. $555). The pleader has failed to observe either of

) the forms of pleading in the present case, and the complaint in consequence does not state facts sufficient to give the plaintiff a cause of action. The trial judge rightfully sustained the defendant's objection to the pleading (Code $ 488, subd. 8; Id. $ 499). It follows, therefore, that the judgment appealed from must be affirmed, with costs.

HALL and NEHRBAS, J.J., concurred.




OCTOBER, 1887.

SS 738, 1278.

Offer of judgmentEffect of, by one of two or more joint debtors--Rule as

to construction of statute.

An offer to allow judgment under Code of Civil Procedure, section 738,

is but a substitute for the former cognovit by which a defendant who

had no defense give to the plaintiff a written confession of the action. A judgment may be entered on an offer of judgment made by one of

two or more joint debtors without affecting or barring the remedy against the other debtors. Section 1278 of Code of Civil Procedure, providing for the entry of judgment upon confession against one of several joint debtors, -applies to cases in which the judgment is ren

dered upon an offer. The law looks to substance, not form, and it regards the thing, not the

name by which it is called. The provision of section 1278 of the Code of Civil Procedure,-authorizing

for the entry of judgment against one of several joint debtors upon

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