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properly he would have separated his defense-his
defense to the claim of false imprisonment, and his
defense to the claim of libel, which are two different
causes of action. But he did not. He mixed them up
together; still one can easily dislocate them. I have
dealt with the justification, and now we come to the
defense as to the libel. The plaintiff complains that
the defendant published a libel, which consisted in
saying that the plaintiff was a lunatic. Whether a
jury in the end will say, that even if it is true, it is a
libel or not, I cannot express my opinion. Whether it
is a libel to say that a person is a lunatic, I will not
undertake to say. That is for a jury. But the libel
may be defended in several ways: First of all by say-
ing, "I did not write it." That would not be true here.
The defendant did write it. Certainly when he sent
the order to the lunatic asylum he published it; there-
fore there is no defense on that ground. He did both
write and publish it. Then we come to this, and this
is another defense: "What I so wrote and published
is true in substance and in fact." If it had been a gen-
eral allegation of that kind to a libel which of itself
might be general, why then I do not say that particu-
lars might not be given. The plaintiff might say to
the defendant, "You allege it is true in fact. What
do you mean by alleging it is true in fact?" But here
it is not so. The libel is only one thing, viz., "You
are a lunatic." The plea here is, when we separate it,
"I justify that by saying you were a lunatic." Then
again that justification consists of one fact. So far
the justification is to the libel. But now we come to
something further. It is pleaded here-whether it will
be a good defense or not it is not for us to say-"As-
suming that it is not true, then I say it was published
on a privileged occasion, and therefore prima facie I
am not liable." That is the defense of the plea. But
then the person who pleaded it was not content with
making it a prima facie case. He would have been, to
my mind, much wiser if he had. He pleads that which
shows that what he had written was written on a
privileged occasion; but he goes on to say, "I did it
bona fide, and with reasonable and probable cause."
This is no part of his plea; it is an immaterial allega-
tion. Then the first difficulty is this: that when you
ask for particulars of that, you are asking for the par-
ticulars of an immaterial allegation in the plea, and
you are really saying to the defendant, "Now tell me
the particulars of what you have not got to prove." It
seems to me to be good law to say you cannot ask for
particulars of a wholly immaterial allegation. The
way to plead it would have been, as I say, to raise that
what was written was written on a privileged occa-
sion. Then it would have been for the plaintiff to re-
ply: "True, the occasion was privileged, but you mis-
used the occasion, because you stated the things ma-
liciously." That is all he would have to say. He
would not have to say "without reasonable and proba-
ble cause" in this case of privilege. The person who
undertook to prove that there was malice might give
prima facie evidence of the malice by showing that
there was no reasonable or probable cause for doing
what was done. If he showed that, unless it was an-
swered by some prima facie case of no malice in fact,
the jury might find it from that. Therefore this matter
of reasonable and probable cause is not only no part
of the plea, but as a matter of pleading, is no part of
the reply, even if it had been given, and yet particu-
lars are asked for. Therefore the particulars which
are asked for are particulars of an allegation, which
where it is is wholly immaterial, and which would have
been immaterial as matter of pleading wherever it is
given. Then to say you are to give particulars is
really to multiply expense. But there seems to me to
be another ground, with regard to this reasonable and
probable cause, why the defendant thought the plain-der, I cannot think the wording can be right, even if

LINDLEY, L. J. This in substance is an appeal from
an order made by Field, J., directing the defendant to
give particulars of the reasonable and probable cause
referred to in his pleadings. I confess that the form
of order strikes me as curious. It seems to me to be
open to the objection that it does not discriminate be-
tween the matter to be proved and the evidence prov-
ing it. The reasonable and probable cause is one of
the most thorny subjects of which I have any knowl.
edge. It is mixed up with facts and law. If it was
intended to draw a sharp distinction between cer-
tain sets of facts and certain other sets of facts, the
order should have been worded so as to draw that dis-
tinction. I should feel very great difficulty indeed in
giving particulars in that order. I doubt very much
whether anybody would see his way to do it clearly.
I will not say he could not do it in such a way that the
other side would not be content with it, but it would
be very difficult to give the particulars. Having made
this observation with regard to the wording of the or-


tiff insane. If you justify the statement, and say he
was insane, even if every other ground failed, it
seems to me that the doctrine laid down in
case in the Divorce Court, Lord Salisbury
v. Greville Nugent, 50 L. T. Rep. (N. S.) 160;
160; 9 P. Div. 23, applies. There the judges held that
particulars of undue influence need not be given.
They put it a great deal no doubt on the practice of
the Probate Court; but I think also upon this ground
that it is impossible to give particulars of such a state-
ment as that. Then when we come to the case of
Hankinson v. Barningham, 9 P. Div. 62, Sir James
Hannen there declined to order particulars of an alle-
gation that a person was of unsound mind. It is true it
was in the case of a will, but all the reasons which he
gave there, and which to my mind are excellent, apply
here. He says in effect that he cannot order a man to
give particulars of the evidence which he is about to
adduce as to whether a person is of unsound mind or
not. First of all because it is evidence only, and not
facts; and secondly, if it were facts, why it is only in-
creasing the expense to order particulars or circum-
stances which might extend over years. That of
itself would be a sufficient answer to this application.
I think therefore that the application here for par-
ticulars was wrong in the beginning, and that the mas-
ter was right in refusing the application. Then un-
fortunately the party who made that unfounded ap-
plication to the master-a great part of which was ne-
cessitated by his own foolish addition about the thing
being a libel, which is utterly ridiculous-was not con-
tent with the master's decision, but went before Field,
J. How he obtained the order from Field, J., we do
not know. I think the order was inadvertently made,
and therefore it was wrong. Then he went before the
Divisional Court, and there the judges were divided
in opinion; but then the application was wrong there.
The case now comes before us, because the appellant
was obliged to come here, according to our present
decision, to get rid of the order. He was obliged to
go to the Divisional Court to attempt to get rid of it,
and he was also obliged to come here. I think we
must allow the appeal. Inasmuch as we consider the
master was right and every other step was wrong, and
also that the whole difficulty has really been brought
about by the plaintiff's having added a foolish claim
to his first complaint, which did not increase his real
complaint, if he has any at all, I think the proper or-
der here is that the appeal should be allowed. I think
also that the plaintiff, who asked for particulars,
should pay the costs of the application to Field, J., of
the application to the Divisional Court, and of this
appeal, the order to be put in this form, and the costs
are to be the defendant's costs in any event.

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it is right in substance. The real ground however of my opinion is that this expression, "reasonable and probable cause," is immaterial; and that therefore there ought to be no particulars at all in this action. They are not wanted. I think it is an extremely unfortunate phrase in this action. Why it was introduced I do not know. I suppose for some reason. It has created a discussion which turns out after all to be of very little use to anybody. The allegation in the pleadings being immaterial, it is one upon which, in my judgment, no particulars at all ought to be given. Upon that ground I think the order was wrong. I quite agree about the costs, and that the costs must be the defendant's in any event.

LOPES, L. J. It seems to me impossible to support this order. It is an order for particulars of reasonable and probable cause in an action where reasonable and probable cause, so far as I can see, has nothing whatever to do with the action. I propose only to deal with one of the causes of action-that is, the cause of action which the plaintiff sets up in respect to a libel. It appears that the defendant thinks he has two defenses to that cause of action, one "justification" and the other "privileged communication." The justification,if proved, would be a complete answer. The privileged communication also might be a complete answer. The effect of a plea of that kind would be this: At the end of the plaintiff's case it would be submitted to the judge that the occasion was a privileged one. If the judge so thought, the burden would then lie upon the plaintiff to establish malice in fact. If he did not succeed in establishing malice in fact the action would fail. Therefore so far as I can see, reasonable and probable cause has nothing whatever to do with the matter. The defendant winds up, in this paragraph of his defense, that he had reasonable and probable cause for believing the plaintiff to be a lunatic. Particulars of that reasonable and probable cause are now asked for by the plaintiff. I think it an absolutely immaterial averment. Being an absolutely immaterial averment, it would be highly improper that particulars should be directed. I also agree with what has been said with regard to the costs.


MAY 17, 1886.


Where a policy of life insurance is】 made payable to the assured, his executors, administrators and assigns, for the sole use and benefit of the children of the assured, the beneficiaries cannot maintain an action at law against the company, but it can only be maintained by the legal representatives; and the company will not be charged as trustees in an action at law against one of the beneficiaries after the death of the assured, where there had been no assignment and the insured died intestate.

Drummond & Drummond, for trustee.

FOSTER, J. The Union Mutual Life Insurance Company issued a policy of insurance to Edmund Phinney for the sum of $4,000. By the terms of that policy the company expressly promised "to pay to Edmund Phinney * * * his executors, administrators or assigns, for the sole use and benefit of" his four children therein named, and the survivor or survivors of them, the amount above named, after deducting there

*5 East. Rep'r, 325.

from any indebtedness the company might have on account of this contract, within ninety days after notice and proofs of death.

On the 31st day of October, 1884, Edmund Phinney died, leaving the four children surviving him, of whom the defendant is one. Thereafter within the time named for the payment of said insurance, this action was commenced. The plaintiff alleges that the defendant is owing him, and has summoned the insurance company as trustee. The only question presented is whether this company can be legally held in this suit. An administratrix has been appointed upon the estate of the deceased. The defendant, since the commencement of this action, has assigned all his interest in the policy, and his claim upon the administratrix of the estate to the fund, to a third party, who claims that the fund cannot be legally attached in this process, and that it is payable from the company to the administratrix and not to this defendant.

If the administratrix is the only party who could maintain this action at law upon this contract, it necessarily follows that a payment by the company to any other party would not be justifiable, and consequently this suit could not be maintained as against the alleged trustee. It should be understood that we are not speaking of the rights of these parties otherwise than in an action at law. Whatever might be our decision, were this in its nature an equitable trustee process, as now provided by Rev. Stat., ch. 77, § 6, par. 10, where the remedy is more elastic and equitable than in suits at law, it is unnecessary now to determine.

Upon a careful consideration of the case, and from an examination of the authorities, we feel confident that the company is not chargeable in this process. It is the established general rule that a party is not chargeable in trustee process with respect to credits, unless he is liable in an action to the principal defendant. This test, it is true, is not always decisive, for there are exceptions to rule. The facts in this case however do not bring it within any of those exceptions. The question then is, who is the party that can maintain an action upon this contract?

Our attention has been called to the various decisions, not only in this but in other States, bearing upon the question, whether when a promise is made to one party for the benefit of a third, the latter can maintain an action upon such promise. We do not however consider it necessary, in arriving at a proper decision in this case, to enter upon that question, nor to extend the doctrine as laid down in Mellen v. Whipple, 1 Gray, 317, to a case like this, where the express terms of the contract and the intention of the parties as evidenced by those terms must be the rule by which we are to be governed in our decision.

The contract in this case was made by the company with Edmund Phinney, the deceased. By that contract the amount was made payable to him, his executors, administrators or assigns, for the sole use and benefit of his four children. At his decease the administratrix of his estate was the only party who S. C. Strout, H. W. Gage and F. S. Strout, for plain- although for the sole use and benefit of the children, could legally enforce that contract. The insurance,


was payable, not to them, but by the terms of that contract to his own legal representative. The company as well as the deceased was party to that contract. It is unlike those cases where, by the terms of the contract, it was expressly promised that the amount was to be paid, either absolutely or upon the happening of some expressed contingency to the beneficiaries themselves instead of the legal representative of the assured.

Thus in Martin v. Etna Ins. Co., 73 Me. 25, the policy was in the name of the wife on the life of her husband, the amount was made payable to her, her execu

tors, administrators or assigns, if she survived her husband, otherwise to their children. The wife did not survive her husband, and the court held that by her death, the promise of payment to her, being contingent upon her surviving her husband, ceased, and was by the express provisions of the policy transferred to the children who became the sole beneficiaries, and the only parties who could avail themselves of the promise.

Another illustration from our own court is the case of Cragin v. Cragin, 66 Me. 517, where the deceased procured a policy of insurance upon his life "for the benefit of his wife and children," and the same was made payable to them, the beneficiaries, their executors, administrators or assigns; aud it was held that the insurance could not have been collected in the name of the administrator of the deceased, but that it was the property of the widow and children by virtue of the express terms of the contract. So in Knickerbocker Ins. Co. v. Weitz, 99 Mass. 159, the contract was between the company and the wife of the assured, and the amount was made payable to her, her executors, administrators or assigns, and in case of her death before that of the assured, it was payable to her children "for their sole use or to their guardian, if under age." On a bill of interpleader by the company the court say: "She having died before the termination of the policy, and her husband having also died within the term, the policy, by its express provisions, was not payable to her representatives or assigns, but to the child or his guardian; " and that the latter was entitled to recover the amount.

On the other hand we find that when the contract is that it is to be paid to the representatives of the assured rather than to the beneficiaries, such representatives are the only proper parties to maintain an action for its recovery. When collected the fund is held by them as trustees under an express trust for such beneficiaries as may be entitled to it. This doctrine is in harmony with the entire line of decisions upon this question, and is founded upon reason as well as authority.

The question arose in Burroughs v. State Assur. Co., 97 Mass. 359, where the policy was made payable to the assured, his executors, administrators and assigns, for the use of his wife and children; during his life-time the assured, with the assent of the company, assigned the policy, and it was held that the assignee might maintain an action at law to recover the amount due, although the policy was expressed to be for the use of the wife and children, the plaintiff's right to recover at law resting upon the express contract between him and the insurers arising out of the terms of the policies and of the assignments to which they have assented.

The next case was that of Campbell v. New England Ins. Co., 98 Mass. 400, in which the policy was made payable to the assured, his executors, administrators and assigns, for the benefit of a wife of the brother of the assured, who brought an action to recover the insurance in her name as beneficiary. Objection to the maintenance of the action not having been seasonably taken, judgment was recovered in her name. Gray, J., says: "In the present case the plaintiff, though not the assured, was the person for whose benefit the policy was made, and was therefore the owner of the entire equitable interest, and might have maintained an action upon it in the name and without the consent of the administrator, or if the latter had collected the amount of the policy, might have sued him for the proceeds. The plaintiff had the equitable interest in the policy, although not the title to support an action at law in her own name against the insurers."

In Gould v. Emerson, 99 Mass. 154, the policy was made payable to the assured, bis executors, adminis

trators or assigus, for the benefit of his widow, if any, and his surviving child or children. The court there say: The contract of the insurance company having been made with the assured, his executors, administrators and assigns, the defendant, as his administrator, might by law collect the amount of the policy."

As if the question had not been sufficiently settled, it was squarely met in Bailey v. New England Ins. Co., 114 Mass. 177. In this case the assured procured a policy upon his life payable to him, his executors, administrators and assigns, for the benefit of his widow. Suit was brought in the name of the beneficiary against the company, and judgment was rendered in favor of the defendants. The court in referring to the previous decisions of Burroughs v. State Assur. Co., and Gould v. Emerson, make use of the following language: "The principle upon which these decisions rest is, that in policies of this kind the executor, administrator or assign becomes a trustee under an express trust, and the legal title being in him, he can maintain an action in his own name against the company. It therefore necessarily follows that the cestuis que trust cannot maintain such action, but must have their rights determined between themselves and the trustee in other forms of proceeding. This brings this class of trusts within the general rules governing all trusts, and renders the practice simple and uniform. To allow cestuis que trust to maintain actions in their own names might subject insurers to several suits on the same policy, or call upon them to determine who has the beneficial interest, or force them to resort to a bill of interpleader to ascertain the equitable rights of the parties." This case is cited in support of the decision in Unity Association v. Dugan, 118 Mass. 221, where the policy in that case was taken out by the assured for the sole use of his wife, and the court held that "not being a party to the contract, nor named therein as payee, she could not maintain an action at law thereon," and that the sole right to sue at law upon the policy after the death of the assured would be in the administratrix of his estate, and that the association might safely have paid the amount of the policy to her.

Stokell v. Kimball, 59 N. H. 14, is in accord with the principles laid down in the foregoing decisions, holding that where the policy is by its terms payable to the assured, his executors, administrators and assigns, the executor or administrator is a trustee or depositary to recover the money for the purpose of paying it to the beneficiaries. Our own court, in Cables v. Prescott, 67 Me. 583, recognize the same doctrine where it is held that the contract vests in the party to whom it is made payable for the benefit of the cestui que trust.

Nor does the case of Norris v. Massachusetts Ins. Co., 131 Mass. 294, to which our attention has been called by the learned counsel for the plaintiff, militate against the conclusions arrived at in this case, or the other decisions to which we have referred. It will be found that the case was a bill in equity, in the nature of an equitable trustee process, and not an action at law. The remedy there is much broader and often times more efficacious, for while in such a proceeding, as in the case last named, even the entire equitable interest of the beneficiary may be reached and applied to the payment of his debt (Donnell v. R. Co., 73 Me. 570; Phonix Ins. Co. v. Abbott, 127 Mass. 560), yet a merely equitable right is not attachable by trustee process in an action at law. Massachusetts Nat. Bk. v. Bullock, 128 Mass. 88; Drake Attach., § 457.

We are of opinion that the questions involved in this case have been so far settled by judicial decisions as to render any further expression of our views unnecessary. Recognizing as a fundamental doctrine of trustee process that the plaintiff does not, as a gen

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ACCOUNT STATED-PART PAYMENT - PRESUMPTION. —(1) Defendant immediately after the receipt of an account stated, for goods sold to him, and which had been under his control and inspection for five months, made two part payments thereon, in the last of which he acknowledged that there was a balance still due, provided the goods still on hand were "up to the contract." Held, that from the facts the law raised au implied agreement that the account was correct. Lockwood v. Thorne, 18 N. Y. 285, 292; Stenton v. Jerome, 54 id. 487; Quincy v. White, 63 id. 370, 377; Young v. Hill, 67 id. 162, 172; S. C., 23 Am. Rep. 997; Shackey v. Mansfield, 90 N. Y. 227; S. C., 43 Am. Rep. 61. (2) An account thus stated is not conclusive upon the party, but is simply prima facie presumptively correct, and may be impeached for any error induced by fraud or mistake. Even by what was said in the letter containing the last payment the defendant assented that the account was correct, and the only right he reserved was to impeach it if the goods were not up to the contract. That right he would have had if it had not been expressly reserved. If he could show that upon subsequent examination he discovered for the first time that the goods were not up to the contract, he could have alleged the facts in his answer and have recovered his damages. The plaintiffs did not place the defendant at a greater disadvantage by suing him upon an account stated, than they would if they had sued him upon an open account for the goods sold, claiming the balance due, because by neither form of action could they cut off his counterclaim for breach of warranty, which was the only defense left to him, the goods having been received by him. June 1, 1886. Sampson v. Freedman. Opinion by Earl, J.

PRACTICE-MOTION FOR RESTITUTION-DISCRETION. ARY ORDER-CODE, § 1292.-The court referred to in section 1292 of the Code of Civil Procedure, which provides that when a judgment is set aside upon motion the court may direct restitution, etc., is the court which sets aside the judgment; and therefore when the judgment is set aside by the General Term, the motion for restitution should be made at the General Term. (2) Delay in making the motion for restitution is a question which appeals to the discretion of the court to which the application is made, and where there has been no abuse of that discretion this court will not review its action on that ground. June 1, 1886. Market Nat. Bank v. Pacific Nat. Bank. Opinion by Earl, J.

SALE-DIVISIBLE CONTRACT.-Plaintiff and defendant made an agreement in writing as follows: "Sold to the following named parties Scotch pig iron to arrive as specified below: * ** 500 tons of Coltness pig iron at 36 per ton for shipment, to be due here in April next, 500 tons of Caulder pig iron at 34 per ton for shipment, to be due here in March next, payable on arrival here by four months' note, indorsed by the above named parties, with interest added at 6 per cent." Plaintiff made default in the outset as to the delivery of the Caulder iron, but claimed to recover for the Coltness iron, as to which he was not in default. Held, that the agreement constituted one en

tire contract, and was not divisible. Here there is a breach of the contract at the beginning; a failure to perform at the outset; and that breach justifies a rescission by the vendee. But a rescission of what? Obviously of the entire contract. It must be that or nothing, since there are not two independent and separate contracts, one of which may be broken without peril to the other, but a single contract which may be rescinded at the moment of a breach so far as it remains wholly unperformed on both sides. The cases which seem to have misled the court below are founded upon peculiar equities growing out of the form of contract. They contemplate and require a performance in separable parts or divisions, and where the vendor delivers an agreed proportion which the vendee accepts and payment therefor becomes immediately due, the right to recover is at once com. plete, and is not forfeited by a later default. The contract in such case is called divisible or distributive, and the language is not objectionable if correctly understood and applied. The right of rescission or of abandonment where such a contract has been wholly performed on one side as to one of its separable parts, and that performance accepted on the other, is lost and cannot be regained, for the right to the payment reserved has fully accrued and does not depend upon further conditions. Practically by the divisible form of the contract, and the joint act of the parties in delivery and acceptance, the earlier stipulation is cut off and separated from the later, but nothing of the kind is possible where the vendor is in default at the outset. The vendee is not compelled to accept a part performance in the inverse order of his contract, but only according to its terms; and where at its initial point the vendor is in default, the right to rescind or abandon belongs to the vendee, and necessarily and justly must apply to the whole contract remaining unperformed. Otherwise the one contract is split into two, each independent of the other. Substantially this doctrine has been recently decided. Norrington v. Wright, 115 U. S. 188. The reasoning of that case seems to us accurate and decisive, and we follow it without hesitation. June 1, 1886. Pope v. Porter. Opinion by Fiuch, J.

STATUTE " ENTERTAINMENT OF THE STAGE"-CONCERTS LICENSE.-A statute enacts that "it shall not be lawful to exhibit to the public in any building, garden or ground,concert room, or other place or room within the city, any interlude, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts therein, or any equestrian, circus or dramatic performance, or any performance of jugglers, or rope dancing or acrobats, until a license for the place of such exhibition for such purpose shall have been first had and obtained." The Eden Musee has been in the habit of giving public concerts, which its counsel describes as "consisting of orchestral selections of a high character, in a room or alcove which opens at an elevation into a larger room or hall, and is on a level with a high gallery encircling said hall." This carefully drawn circumlocution avoids saying that the entertainment is upon a "stage," but the difference is rather in the language than the fact. The proof shows that the place is one of public amusement to which visitors are attracted by the entertainment offered, to which an admission is charged, and which anybody may attend upon payment of the price. It is a private enterprise planned and accomplished for personal gain and profit like other places of public amusement seeking the public patronage. Without doubt it belongs to the general class of cases contemplated by the statute as needing more or less of government supervision and regulation, and so required to pay a license

fee. It is claimed however that it is neither an "entertainment of the stage" nor an exhibition of "minstrelsy," and thus not within the language of the statute, but is merely a concert not named or included within the section referred to. The appellant's counsel traces to their origin what were known as minstrels, insisting that they were "strolling singers and musicians" wandering about the country, and "not to be confounded with the musical artist or with the performer in an orchestra having a fixed abode or domicile." Even if the test of difference between "minstrelsy" and "musician" was that one strolled and the other stayed at home, that one was a vagabond and the other a citizen, it is certain that the word "minstrelsy" has acquired a much wider meaning and is used in the statute in that broader sense. The act of 1862 was confined to "negro minstrelsy," a phrase which designated a known and specific kind of musical entertainment, and so made that and the opera the subjects of license regulations to the exclusion of what may be called concerts. But by the act of 1872 the word "negro" was dropped and the word minstrelsy" purposely left to its broad and general meaning, without any qualifying or restrictive expression. It was as if the Legislature had declared that instead of limiting the regulation to one sort or kind of "minstrelsy" it should thereafter apply to all sorts and kinds without limitation. So broad was the act, that in 1875 the Legislature deemed it necessary to specially except from its operation private theatricals and church and Sunday school exhibitions and the like. The phrase "any other entertainment of the stage" is also very broad and comprehensive. Theatrical and operatic performances, minstrelsy and dancing had already been specifically named, and "any other entertainment of the stage" implied that there were others to be included. Was it meant that a boxing match on the stage of a place of public amusement did not need regulation and license, while an opera or a tragedy did? Taking the statute in all its terms it evidently meant to include all classes of public exhibitions such as are usually conducted upon a stage for the observation and amusement of the public, and we see no good reason for narrowing or restricting its obvious scope and purpose. June 1, 1886. Mayor, etc., of New York v. Eden Musee. Opiniou by Finch, J.


STATUTE OF LIMITATIONS STATE.-Defendant, who resided in Austria in May, 1873, there accepted a draft and came to the city of New York, where he has ever since resided. On reaching New York, for the purpose of concealing himself from his creditor, he hid himself under an assumed name. Plaintiff, in 1882, discovered defendant, demanded payment of the draft, and on refusal brought suit. Held, that the statute of limitations was a bar to a recovery. It is quite probable that the defendant perpetrated a fraud upon the plaintiff by concealing his residence from him, and that the statute is resorted to by him to defeat a just claim. Yet the statute may have its operation. Its plain language cannot be perverted to remedy the hardship of any particular case. It is a benign statute, and the Legislature has written in it all the exceptions which sound policy dictated to it. It may frequently operate to defeat just claims and be used by dishonest debtors to escape the payment of honest debts. A cause of action may be barred before it is known to the claimant. The debtor may purposely conceal it, and yet the bar of the statute must inexorably be applied. A debtor who has always resided within the State may abscond from his home and conceal himself within the State from his creditors, and yet no one will claim that such debtors are to be regarded as without the State, or that such concealment will defeat the run

ning of the statute. The law gives a creditor six years continued presence of his debtor within the State after the cause of action has acerued, and that period has been deemed ample to enable the creditor to find his debtor and to put the machinery of the law in force against him. It would lead to great inconvenience and leave the bench and bar without any certain rule, if in every case where a debtor has resided and continually been within this State for six years after a cause of action against him accrued, and the statute of limitations is interposed as a bar to an action to enforce the same, it could be a matter of inquiry and litigation upon disputed evidence whether the debtor, during any portion of the time, concealed himself fraudulently or otherwise, and whether the creditor used due diligence to find him. There are some cases in which what is now the first clause of the section above quoted was under consideration, and it became necessary for the courts to determine what was a return or coming into the State so as to set the statute running wherein it was decided that the return must be open and notorious, and under such circumstances that the creditor could with reasonable diligence find his debtor and serve him with process. Little v. Blunt, 16 Pick. 359; Hill v. Bellows, 15 Vt. 727; Hysinger v. Bullzell, 3 Gill. & J. 158; Didier v. Davison, 2 Barb. Ch. 477; Ford v. Babcock, 2 Sandf. 518; Cole v. Jessup, 10 N. Y. 86; Dorr v. Swartwout, 1 Blatchf. C. C. 179; 3 Pars. Cont. (6th ed.) 96; Ang. Lim. (2d ed.) 216. A debtor might return to the State clandestinely for a few hours, in the night time, or on Sunday, or he might be in the State on his progress through it, and a return of such a character which might be concealed from and unknown to the creditor, and which would afford him no opportunity by the use of reasonable diligence to serve his debtor with process, is held not to be a return to the State within the meaning of the statute. But it has never before this case, so far as I can discover, been decided that where the debtor was continually in the State for more than six years after the cause of action accrued he was deemed to have been without the State, and thus the running of the statute defeated because he concealed his abode, and thus the creditor was unable to discover him and serve him with process. Sleght v. Kane, 1 Johus. Cas. 76, and Poillon v. Lawrence, 77 N. Y. 208, distinguished. June 1, 1886. Engle v. Fischer. Opinion by Earl, J. [51 N. Y. Super. 71; 15 Abb. N. C. 72, re. versed.]


CODE, § 381 -- PARTNERSHIP ACCOUNTING.Articles of copartnership under seal contained a covenant that all losses happening to said firm, whether from bad debts, depreciation of goods, or any other cause or accident, and all expenses of the business shall be borne by the said parties in equal proportion." In an action for an accounting, held, that the action was upon a sealed instrument within the meaning of section 381 of the Code of Civil Procedure. The subject was very fully discussed in Peters v. Delaplaine, 49 N. Y. 362, which was an action for specific performance. In such an action equity acts or withholds its aid upon grounds peculiar to itself. A covenant to convey does not give an absolute right to a convey. ance, and an action seeking that relief depends upon other circumstances than the covenant and lies in the equitable discretion of the court. In the present case however the covenant and its breach gives the absolute right to a recovery of the resultant damages, and it is only in the mode of ascertaining them that equitable aid is found useful. The substance of the action is to recover damages for a breach of covenant and is founded upon the sealed instrument. The illustration suggested by the learned trial judge of the nature of the action between joint obligors in a bond where one

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