Geller a. Seixas. The execution, I think, therefore, ought to be set aside; but, considering the incertitude and diversity of opinions upon this subject, it must be on the condition that no action shall be commenced for false imprisonment;* and the motion is granted without costs. GELLER a. SEIXAS. New-York Common Pleas; Special Term, January, 1857. ARREST.-MONEYS RECEIVED IN FIDUCIARY CAPACITY. Where the right to arrest the defendant is derived from the nature of the action— e. g. in an action to recover moneys received by defendant in a fiduciary capacity-the defendant will not be allowed, upon a motion to discharge from arrest, to introduce affidavits to show that there is no cause of action. But where the arrest is founded upon extrinsic facts wholly independent of the cause of action, and the defendant satisfies the court by his own affidavit or otherwise that there was no foundation for the arrest, he is entitled to be discharged. The acceptance of a negotiable promise of payment from a debtor suspends the remedy upon the original indebtedness. But the acceptance of a non-negotiable promise does not so operate, unless it is founded upon a new consideration. Motion to discharge defendant from arrest. This action was by Emma Geller against Benj. M. Seixas. DALY, J.-This action is brought to recover the proceeds of the sale of two cargoes worth about 60,000 francs, intrusted to the defendant in a fiduciary capacity; and he asks to be discharged from the arrest, upon the ground that before the action was brought he entered into an agreement with the plaintiff's agent at Caraccas, by the terms of which his indebtedness was to be paid in five annual instalments of $1,000 each, and the balance, $8,000, when his circumstances would permit; the first of which payments will not be due until February next. The affidavit upon which the arrest was ordered is positive that the amount sought to be recovered is due by the defendant, • Compare The Northern Railway Company of France a. Carpentier, Ante, 52. Geller a. Seixas. and that it was received by him in a fiduciary capacity; and where the cause of action is thus positively sworn to, the court will not hear counter affidavits nor enter into an examination of the merits of the case, but will take the fact of the case to be as sworn to in the affidavit upon which the arrest was made (Jordan v. Jordan, Wend., 524; Welch v. Hill, 2 Johns., 100). The Code has not changed the law in this respect. Where, as in this case, the right to arrest is derived from the nature of the action, the defendant will not be allowed to introduce affidavits to show that there is no cause of action, for that would be trying the merits of the action by affidavits upon a preliminary motion to discharge from arrest. But when the arrest is founded upon extrinsic facts wholly independent of the cause of action, as where the defendant has removed or disposed of his property, or is about to do so, with intent to defraud his creditors, then the defendant may contest the truth of the facts upon which the arrest was ordered, and if he satisfies the court, either by his own affidavit or otherwise, that there was no foundation for the arrest, he is entitled to be discharged (Wilmerding v. Morris, 8 How. Pr. R., 213; Chancy v. Garbut, 5 Ib., 467; Corwin v. Freeland, 2 Seld., 565). But if the cause of action could be inquired into upon this motion, the defendant would not then be entitled to be discharged. He has not shown conclusively that the plaintiff has no cause of action. Admitting the document to be genuine, which he has produced to show that the time for the payment of his indebtedness was extended by the plaintiff's agent, that does not take away or postpone the plaintiff's right to sue upon the original indebtedness. The acceptance of a promissory note of a debtor suspends the creditor's remedy upon the original debt, unless the note is produced and cancelled, or it is shown that the debtor could not become liable upon it; but that is upon the ground that it is a negotiable instrument, upon which the debtor might be liable in the hands of a third party (Keoslake v. Mor gan, 5 Durnf. & E., 513; Hadwin v. Mendijabel, 10 Moore, 477; Kendrick v. Lomax, 2 Carr & P., 405; Tulchard v. Tuckington, 10 Johns., 104; Hughs v. Wheeler, 8 Cow., 77). But an instrument like the one relied upon here, unless it is founded upon some new consideration, will not operate to suspend the right to sue upon the original debt. No such consideration ap Geller a. Seixas. pears upon the face of the instrument. It is an acknowledgment of the defendant's indebtedness, arising from balance of accounts, pending, with an agreement on the part of the creditor, by her agent in Caraccas, to give time for the payment of the sum admitted to be due. But to supply the want of any consideration upon the face of the instrument the defendant swears that, when it was made, all the shipments consigned to him had not been sold, and that in order to effect a settlement of accounts, he agreed to take the whole shipment at invoice prices, with freight added, which made up the whole sum upon which the extended credit was given. An agreement on the part of the defendant, to charge himself with goods that had not been sold, and for the payment of which he was not responsible, would undoubtedly be a good consideration for an agreement, to give an extended credit for the whole sum. But this rests upon the defendant's affidavit alone, and the plaintiff has no means of knowing upon the motion, whether or not this statement is true; but on the contrary, very good reason for doubting it. The alleged agreement was made nearly a year ago, and not only has she not received any advices from her agent at Caraccas of the making of any such agreement, but her agent, Mr. Wolfe, swears that he saw her agent, Mr. Pardoe, in Venezuela, after the agreement is alleged to have been made, and that he, Pardoe, told Wolfe that he had been unable to effect any settlement with the defendant; that the defendant had given him a balance-sheet which he found did not balance, and that when he asked for the defendant's books, the defendant told him they were in France. The only person, therefore, who could contradict the defendant's affidavit, in the material matter of the proof of consideration not appearing in the writing, is the agent who is in Caraccas, and his affidavit cannot be procured upon the motions. The motion to discharge from arrest must be denied. Lewis a. Graham, LEWIS a. GRAHAM. New-York Common Pleas; Special Term, January, 1857. SUIT BY ASSIGNEE.-DEFECT OF PARTIES.-RIGHTS OF PLEDGOR AND PLEDGEE. An assignee of a demand in trust to pay certain creditors of the assignor and the balance to the assignor himself, may bring an action in his own name, without joining the cestui que trusts as plaintiffs. An objection to a complaint for defect of parties can only be taken by demurrer or answer. An agreement whereby the maker of notes delivers certificates of stock as collateral security for the payment of the notes, stipulating that if the notes are not paid at maturity the securities shall be under the control of the holder, who is authorized to dispose of them, and to apply the proceeds to the credit of the maker,—is a pledge of the stocks and not a mortgage. A pledgee can sell the pledge on default of payment, only upon demand of payment and notice of sale; and the notice must state the time and place of sale. A special partner of a firm with whom property is pledged, is not incapacitated by his relations with the firm from purchasing the pledge at a sale made by them. Where a pledgee has sold the pledge without right to do so, a tender of the debt is not necessary to enable the pledge to recover the value of the pledge. Action tried by the court. This action was brought by James M. Lewis against John A. Graham and others. H. P. Fessenden and B. W. Bonney, for plaintiff. Mott & Murray and S. A. Foote, for defendants. INGRAHAM, F. J.-The plaintiff has brought this action against the defendants, who are members of a limited partnership, to obtain an account; claiming a right to redeem certain securities left by Nathaniel J. Brown, the assignor of the plaintiff, with the defendants, to secure the payment of two notes of Brown, held by the defendants. In August, 1844, the defendants were in partnership, Varnum being the special partner, and the other defendants general partners. At that time, one Brown of Illinois, for a good consider Lewis a. Graham. ation, gave to the defendants' firm his two promissory notes for $2,736.37, payable in twelve months after date. Brown delivered at the same time, as collateral security for the said two notes, sundry certificates of Illinois State indebtedness, some drawing interest, and some without any interest specified therein, amounting to $8,500. Afterwards, in 1846, Brown delivered to the defendants, as further security for the said notes, eight other certificates of Illinois indebtedness, each for $132.50, payable with interest at a future day. The agreement under which these notes were given, with the securities, was in writing. By it Brown agreed that if the notes were not paid at the expiration of twelve months, the securities or collaterals were to be under the control of the defendants' firm, and said firm was authorized to dispose of and sell said securities after sixty days from the maturity of the notes, and apply the proceeds thereof to the credit of Brown. The collaterals were to be sold at the highest market value in New-York; and the firm was only authorized to sell so much of the collaterals as would pay off and discharge the indebtedness of Brown. Brown's notes remained unpaid at maturity, excepting as to $200, which was paid on one of the notes when it fell due. The defendants' firm repeatedly demanded payment of Brown, prior to January 18, 1848, by letters through the mail, which were received by Brown, and on February 18, 1848, they sent Brown a letter, which was received by him in Illinois, demanding payment, and inclosing a notice that all the securities held by them as collateral, and delivered when the notes were passed to Brown, would be sold on February 21, to pay the indebtedness of Brown on his notes to them. This notice did not include the eight certificates delivered in 1846, as they were not mentioned therein. An answer was received to this letter, dated February 21, acknowledging that such letter came to hand that day, suggesting modes of settlement, and asking for a further delay of sixty days. On February 21, the securities were all sold at auction, including those delivered in 1846, for a sum less than the amount due to the defendants, and were purchased by the special partner, Varnum, on his own account. On February 22, 1848, the defendants wrote Brown a letter, |