Imágenes de páginas


[ocr errors][ocr errors][ocr errors]

properly he would have separated his defenso-his tiff insave. If you justify the statement, and say be defense to the claim of false imprisonment, and his was insane, even if every other ground failed, it defense to the claim of libel, which are two different

to me that the doctrine laid down in causes of action. But he did not. He mixed them up the case in the Divorce Court, Lord Salisbury together; still one can easily dislocate them. I have v. Greville Nugent, 50 L. T. Rep. (N. S.) 160; dealt with the justification, and now we come to the 160; 9 P. Div. 23, applies. There the judges held that defense as to the libel. The plaintiff complains that particulars of undue influence need not be given. the defendant published a libel, which consisted in They put it a great deal no doubt on the practice of saying that the plaintiff was a lunatic. Whether a the Probate Court; but I think also upon this ground jury in the end will say, that even if it is true, it is a that it is impossible to give particulars of such a statelibel or not, I cannot express my opinion. Whether it ment as that. Then when we come to the case of is a libel to say that a person is a lunatic, I will not Hankinson - V. Barningham, 9 P. Div. 62, Sir James undertake to say. That is for a jury. But the libel Hapnen there declined to order particulars of an allemay be defended in several ways: First of all by say- gation that a person was of unsound mind. It is true it ing, “I did not write it." That would not be true here. was in the case of a will, but all the reasons which he The defendant did write it. Certainly when he sent gave there, and which to my mind are excellent, apply the order to the lunatic asylum he published it; there- here. He says in effect that he cannot order a man to fore there is no defense on that ground. He did both give particulars of the evidence which he is about to write and publish it. Then we come to this, and this adduce as to whether a person is of unsound mind or is another defense: “What I so wrote and published not. First of all because it is evidence only, and not is true in substance and in fact.” If it had been a gen- facts; and secondly, if it were facts, why it is only ineral allegation of that kind to a libel which of itself creasing the expense to order particulars or circummight be general, why then I do not say that particu- stances which might extend over years. That of lars might not be given. The plaintiff might say to itself would be a sufficient answer to this application. the defendant, “You allege it is true in fact. What I think therefore that the application here for pardo you mean by alleging it is true in fact?" But here ticulars was wrong in the beginning, and that the masit is not so. The libel is only one thing, viz., “You ter was right in refusing the application. Then unare a lunatic." The plea here is, when we separate it, fortunately the party who made that unfounded ap"I justify that by saying you were a lunatic." Then plication to the master—a great part of which was neagain that justification consists of one fact. So far cessitated by his own foolish addition about the thing the justification is to the libel. But now we come to being a libel, which is utterly ridiculous-was not consomething further. It is pleaded here-whether it will tent with the master's decision, but went before Field, be a good defense or not it is not for us to say—“As. J. How he obtained the order from Field, J., we do suming that it is not true, then I say it was published not know. I think the order was inadvertently made, on a privileged occasion, and therefore prima facie I and therefore it was wrong. Then he went before the am not liable.” That is the defense of the plea. But Divisional Court, and there the judges were divided then the person who pleaded it was not content with in opinion; but then the application was wrong there. making it a prima facie case. He would have been, to The case now comes before us, because the appellant my mind, much wiser if he had. He pleads that which was obliged to come here, according to our present shows that what he had written was written on a decision, to get rid of the order. He was obliged to privileged occasion; but he goes on to say, “I did it go to the Divisional Court to attempt to get rid of it, bona fide, and with reasonable and probable cause.” and he was also obliged to come here. I think we This is no part of his plea; it is an immaterial allega- must allow the appeal. Inasmuch as we consider the tion. Then the first difficulty is this: that when you master was right and every other step was wrong, and ask for particulars of that, you are asking for the par- also that the whole difficulty has really been brought ticulars of an immaterial allegation in the plea, and about by the plaintiff's having added a foolish claim you are really saying to the defendant, “Now tell me to his first complaint, which did not increase his real the particulars of what you have not got to prove." It complaint, if he has any at all, I think the proper orseems to me to be good law to say you cannot ask for der here is that the appeal should be allowed. I think particulars of a wholly immaterial allegation. The also that the plaintiff, who asked for particulars, way to plead it would have been, as I say, to raise that should pay the costs of the application to Field, J., of what was written was written on a privileged occa- the application to the Divisional Court, and of this sion. Then it would have been for the plaintiff to re- appeal, the order to be put in this form, and the costs ply: “True, the occasion was privileged, but you mis- are to be the defendant's costs in any event. used the occasion, because you stated the things ma- LINDLEY, L. J. This in substance is an appeal from liciously.” That is all he would have to say. He an order made by Field, J., directing the defendant to would not have to say “without reasonable and proba- give particulars of the reasonable and probable cause ble cause" in this case of privilege. The person who referred to in his pleadings. I confess that the form undertook to prove that there was malice might give of order strikes me as curious. It seems to me to be prima facie evidence of the malice by showing that open to the objection that it does not discriminate bethere was no reasonable or probable cause for doing tween the matter to be proved and the evidence provwhat was done. If he showed that, unless it was an- ing it. The reasonable and probable cause is one of swered by some prima facie case of no malice in fact, the most thorny subjects of which I have any kpowl. the jury might find it from that. Therefore this matter edge. It is mixed up with facts and law. If it was of reasonable and probable cause is not only no part intended to draw a sharp distinction between cerof the plea, but as a matter of pleading, is no part of tain sets of facts and certain other sets of facts, the the reply, even if it had been given, and yet particu- order should bave been worded so as to draw that diglars are asked for. Therefore the particulars which tinction. I should feel very great difficulty indeed in are asked for are particulars of an allegation, which giving particulars in that order. I doubt very much where it is is wholly im material, and which would have whether anybody would see his way to do it clearly. been immaterial as matter of pleading wherever it is I will not say he could not do it in such a way that the given. Then to say you are to give particulars is other side would not be content with it, but it would really to multiply expense. But there seems to me to be very difficult to give the particulars. Having made be another ground, with regard to this reasonable and this observation with regard to the wording of the orprobable cause, why the defendant thought the plain- der, I cannot think the wording can be right, even if

[ocr errors][ocr errors][ocr errors]



it is right in substance. The real ground however of from any indebtedness the company migbt bave on
my opinion is that this expression, “reasonable and account of this contract, within ninety days after no-
probable cause,” is immaterial; and that therefore tice and proofs of death.
there ought to be no particulars at all in this action. Ou the 31st day of October, 1884, Edmund Phinney
They are not wanted. I think it is an extremely unfor- died, leaving the four children surviving him, of
tuuate phrase in this action. Why it was introduced whom the defendant is one. Thereafter within the
I do not know. I suppose for some reason. It has time named for the payment of said insurance, this
created a discussion which turns out after all to be of action was commenced. The plaintiff alleges that the
very little use to anybody. The allegation in the defendant is owing him, and has summoned the insur-
pleadings being immaterial, it is one upon which, in ance company as trustee. The only question presented
my judgment, no particulars at all ought to be given. is whether this company can be legally held in this suit.
Upon that ground I think the order was wrong. I An administratrix has been appointed upon the es-
quite agree about the costs, and that the costs must tate of the deceased. The defendant, since the com-
be the defendant's in any event.

mencement of this action, has assigned all his interest
LOPES, L. J. It seems to me impossible to support in the policy, and his claim upon the administratrix of
this order. It is an order for particulars of reason- the estate to the fund, to a third party, who claims
able and probable cause in an action where reasonable that the fund cannot be legally attached in this process,
and probable cause, so far as I can see, has nothing and that it is payable from the company to the admin-
whatever to do with the action. I propose only to istratrix and not to this defendant.
deal with one of the causes of action-that is, the If the administratrix is the only party who could
cause of action which the plaintiff sets up in respect

maintain this action at law upon this contract, it neto a libel. It appears that the defendant thinks he has cessarily follows that a payment by the company to two defenses to that cause of action, one "justifica- any other party would not be justifiable, and consetion"and the other“ privileged communication.” The quently this suit could not be maintained as against justification, it proved, would be a complete answer. The the alleged trustee. It should be understood that we privileged communication also might be a complete are not speaking of the rights of these parties otheranswer. The effect of a plea of that kind would be this: wise than in an action at law. Whatever might be At the end of the plaintiff's case it would be submit- our decision, were this in its nature an equitable trusted to the judge that the occasion was a privileged one. tee process, as now provided by Rev. Stat., ch. 77, $ 6, If the judge so thought, the burden would then lie par. 10, where the remedy is more elastio and equitupon the plaintiff to establish malice in fact. If he able than in suits at law, it is unnecessary now to dedid not succeed in establishing malice in fact the ac

termine. tion would fail. Therefore so far as I can see, reason

Upon a careful consideration of the case, and from able and probable cause has nothing whatever to do an examination of the authorities, we feel confident with the matter. The defendant winds up, in this that the company is not chargeable in this proparagraph of his defense, that he had reasonable and

It is the established general rule that a party is probable cause for believing the plaintiff to be a luna- not chargeable in trustee process with respect to credtic. Particulars of that reasonable and probable cause

its, unless he is liable in au action to the principal deare now asked for by the plaintiff. I think it an ab- fendant. This test, it is true, is not always decisive, solutely immaterial averment. Being an absolutely for there are exceptions to rule. The facts in this immaterial averment, it would be highly improper

case however do not bring it within any of those exthat particulars should be directed. I also agree with ceptions. The question then is, who is the party that what has been said with regard to the costs.

can maintain an action upon this contract?

Our attentiou has been called to the various decis

ions, not only in this but in other States, bearing upon INSURANCE-LIFE-ACTION.

the question, whether when a promise is made to one party for the benefit of a third, the latter can main

tain an action upon such promise. We do not howMAINE SUPREME JUDICIAL COURT.

ever consider it necessary, in arriving at a proper de. MAY 17, 1886.

cision in this case, to enter upon that question, nor to

extend the doctrine as laid down in Mellen v. Whipple, STOWE V. PHINNEY.*

1 Gray, 317, to a case like this, where the express terms Where a policy of life insurance is made payable to the as

of the contract and the intention of the parties as ersured, his executors, administrators and assigns, for the

idenced by those terms must be the rule by which we sole use and benefit of the children of the assured, the

are to be governed in our decision. beneficiaries cannot maintain an action at law against the

The contract in this case was made by the company company, but it can only be maintained by the legal

with Edmund Phimney, the deceased. By that conrepresentatives; and the company will not be charged as

tract the amount was made payable to him, his executrustees in an action at law against one of the beneficiar

tors, administrators or assigns, for the sole use and ies after the death of the assured, where there had been

benefit of bis four children. At his decease the adno assignment and the insured died intestate.

ministratrix of his estate was the only party who

could legally enforce that contract. The insurance, $. C. Strout, H. W. Gage and F. S. Strout, for plaintiff.

although for the sole use and benefit of the children,

was payable, not to them, but by the terms of that Drummond & Drummond, for trustee.

contract to his own legal representative. The comFOSTER, J. The Union Mutual Life Insurance Com

pany as well as the deceased was party to that conpany issued a policy of insurance to Edmund Phinney

tract. It is unlike those cases where, by the terms of for the sum of $4,000. By the terms of that policy the

the contraot, it was expressly promised that the company expressly promised “to pay to Edmund

amount was to be paid, either absolutely or upon the Pbinney * * * his executors, administrators or

happening of some expressed contingency to the beneassigns, for the sole use and benefit of” his four chil.

ficiaries themselves instead of the legal representative dren therein named, and the survivor or survivors of

of the assured. them, the amount above named, after deducting there

Thus in Martin v. Ætna Ins. Co., 73 Me. 25, the pol

icy was in the name of the wife on the life of her hus*5 East. Rep'r, 325,

band, the amount was made payable to her, her execu

[ocr errors][merged small][ocr errors]

tors, administrators or assigns, if she survived her trators or assigns, for the benefit of his widow, if any,
husband, otherwise to their children. The wife did and his surviving child or children. The court there
uot survive her husband, and the court held that by say: “The contract of the insurance company hay-
her death, the promise of payment to her, being con- ing been made with the assured, his executors, admin-
tingent upon her surviving her husband, ceased, and istrators and assigps, the defendant, as his admin-
was by the express provisions of the policy transferred istrator, might by law collect the amount of the pol-
to the children who became the sole beneficiaries, joy."
and the only parties who could avail themselves of As if the question had not been sufficiently settled,
the promise.

it was squarely met in Bailey v. New England Ins. Co., Another illustration froin our own court is the case 114 Mass. 177. In this case the assured procured a polof Cragin v. Cragin, 66 Me. 517, where the deceased icy upon his life payable to him, his executors, admin. procured a policy of insurance upon his life “ for the istrators and assigns, for the benefit of his widow. benefit of his wife and children," and the same was Suit was brought in the name of the beneficiary made payable to them, the beneficiaries, their execu- against the company, and judgment was rendered in tors, administrators or assigns; and it was held that favor of the defendants. The court in referring to the insurance could not have been collected in the the previous decisions of Burroughs v. State Assur. name of the administrator of the deceased, but that it Co., and Gould v. Emerson, make use of the following was the property of the widow and children by virtue language: “The principle upon which these decisof the express terms of the contract. So in Knicker- ions rest is, that in policies of this kind the executor, bocker Ins. Co. v. Weilz, 99 Mass. 139, the contract was administrator or assign becomes a trustee under an between the company and the wife of the assured, and express trust, and the legal title being in him, he oan the amount was made payable to her, her executors, maintain an action in his own name againɛt the com: administrators or assigns, and in case of her death pany. It therefore necessarily follows that the cestuis before that of the assured, it was payable to her chil- que trust cannot maintain such action, but must have dren for their sole use or to their guardian, if under their rights determined between themselves and the age." On a bill of interpleader by the company the trustee in other forms of proceeding. This brings this court say: “She having died before the termination class of trusts within the general rules governing all of the policy, and her husband having also died within trusts, and renders the practice simple and uniform. the term, the policy, by its express provisions, was not To allow cestuis que trust to maintain actions in their payable to her representatives or assigns, but to the own names might subject insurers to several suits on child or his guardian;" and that the latter was en- the same policy, or call upon them to determine who titled to recover the amount.

has the beneficial interest, or force them to resort to a On the other hand we find that when the contract is bill of interpleader to ascertain the equitable rights of that it is to be paid to the representatives of the as- the parties." This case is cited in support of the desured rather than to the beneficiaries, such represen- cision in Unity Association v. Dugan, 118 Mass. 221, tatives are the only proper parties to maintain an ac- where the polioy in that case was taken out by the astion for its recovery. When collected the fund is held sured for the sole use of his wife, and the court held by them as trustees under an express trust for such that “not being a party to the contract, uor named beneficiaries as may be entitled to it. This doctrine therein as payee,she could not maintain an action at law is in harmony with the entire line of decisions upon thereon," and tbat the sole right to sue at law upon this question, and is founded upon reason as well as the policy after the death of the assured would be in authority.

the administratrix of his estate, and that the associaThe question arose in Burroughs v. State Assur. Co., tion might safely have paid the amount of the policy 97 Mass. 359, where the policy was made payable to the to her. assured, his executors, administrators and assigns, for Stokell v. Kimball, 59 N. H. 14, is in accord with thə the use of his wife and children; during his life-time principles laid down in the foregoing decisions, holdthe assured, with the assent of the company, assigned ing that where the policy is by its terms payable to the tbe policy, and it was held that the assignee might assured, his executors, administrators and assigns, the maintain an action at law to recover the amount due, executor or administrator is a trustee or depositary to although the policy was expressed to be for the use of recover the money for the purpose of paying it to the the wife and children, the plaintiff's right to recover beneficiaries. Our own court, in Cables v. Prescott, 67 at law resting upon the express contract between him Me. 583, recognize the same doctrine where it is held and the insurers arising out of the terms of the that the contract vests in the party to whom it is made policies and of the assiguments to which they have as- payable for the benefit of the cestui que trust. sented.

Nor does the case of Norris v. Massachusetts Ins. Co., The next case was that of Campbell v. New England 131 Mass, 294, to which our attention has been called Ins. Co., 98 Mass. 400, in which the policy was made by the learned counsel for the plaintiff, militato payable to the assured, his executors, administrators against the conclusions arrived at in this case, or the and assigns, for the benefit of a wife of the brother of other decisions to which we have referred. It will be the assured, who brought an action to recover the in- found that the case was a bill in equity, in the nature surance in her name as beneficiary. Objection to the of an equitable trustee process, and not an action at maintenance of the action not having been seasonably law. The remedy there is much broader and often taken, judgment was recovered in her name. Gray, times more efficacious, for while in such a proceeding, J., says: In the present case the plaintiff, though as in the case last named, even the entire equitable in. not the assured, was the person for whose benefit the terest of the beneficiary may be reached and applied policy was made, and was therefore the owner of the to the payment of his debt (Donnell v. R. Co., 73 Me. entire equitable interest, and might have maintained 570; Phonix Ius. Co. v. Abbott, 127 Mass. 560), yet a an action upon it in the name and without the con

merely equitable right is not attachable by trustee sent of the administrator, or if the latter had collected process in an action at law. Massachusetts Nat. Bk. v. the amount of the policy, might have sued him for the Bullock, 128 Mass. 88; Drake Attach., $ 457. proceeds. The plaintiff had the equitable interest in We are of opinion that the questions involved in the policy, although not the title to support an action this case have been so far settled by judicial decisions at law in her own Dame against the insurers."

as to render any further expression of our views unIn Gould v. Emerson, 99 Mass. 154, the policy was necessary. Recognizing as a fundamental doctriue of made payable to the assured, bis executors, adminis- trustee process that the plaintiff does not, as a gen

[ocr errors]

eral rule, acquire any greater rights against the trus- tire contract, and was not divisible. Here there is a tee than the defendant himself possesses, the excep- breach of the contract at the beginning; a failure to tions to which rule do not apply to the case before us, perform at the outset; and that breach justifies a reour decision is that the entry should be, trustee dis- scission by the vendee. But a rescission of what? charged with costs.

Obviously of the entire contract. It must be that or Peters, C. J., Walton, Virgin, Libbey and Haskell, nothing, since there are not two independent aud sepJJ., concurred.

arate contracts, one of which may be broken without peril to the other, but a single coutract which may

be rescinded at the moment of a breach so far as it reNEW YORK COURT OF APPEALS ABSTRACT, mains wholly unperformed on both sides. The cases

which seem to have misled the court below are ACCOUNT STATED-PART PAYMENT - PRESUMPTION. founded upon peculiar equities growing out of the -(1) Defendant immediately after the receipt of an form of contract. They contemplate and require a account stated, for goods sold to him, and which had performance in separable parts or divisious, and where been under his control and inspection for five months, the vendor delivers an agreed proportion which the made two part payments thereon, in the last of which vendee accepts and payment therefor becomes imhe acknowledged that there was a balance still due, mediately due, the right to recover is at once com. provided the goods still ou band were "up to the con- plete, and is not forfeited by a later default. The tract." Held, that from the facts the law raised au contract in such case is called divisible or distributive, implied agreement that the account was correct.

and the language is not objectionable if correctly unLockwood v. Thorne, 18 N. Y. 285, 292; Stenton v.

derstood and applied. The right of rescission or of Jerome, 54 id. 487; Quincy v. White, 63 id. 370, 377;

abandonment where such a contract has been wholly Young v. Hill, 67 id. 162, 172; S. C., 23 Am. Rep. 997; performed on one side as to one of its separable parts, Shackey v. Mansfield, 90 N. Y. 227; S.C., 43 Am. Rep. and that performance accepted on the other, is lost 61. (2) An account thus stated is not conclusive upon

and cannot be regained, for the right to the payment the party, but is simply prima facie presumptively

reserved has fully accrued and does not depend upon correct, and may be impeached for any error induced

further conditions. Practically by the divisible form by fraud or mistake. Even by what was said in the of the contract, and the joint act of the parties in deletter containing the last payment the defendant as- livery and acceptance, the earlier stipulation is out sented that the account was correct, and the only off and separated from the later, but nothing of the right he reserved was to impeach it if the goods were kind is possible where the vendor is in default at the not up to the contract. That right he would have had

outset. The vendee is not compelled to accept a part if it had not been expressly reserved. If he could performance in the inverse order of his coutract, but show that upon subsequent examination be discov- only according to its terms; and where at its initial ered for the first time that the goods were not up to point the vendor is in default, the right to rescind or the contract, he could have alleged the facts in his abaudon belongs to the vendee, and necessarily aud answer and have recovered his damages. The plaintiffs justly must apply to the whole contract remaining undid not place the defendant at a greater disadvantage performed. Otherwise the one contract is split into by suing bim upon an account stated, than they would two, each independent of the other. Substantially if they had sued him upon an open account for the

this doctrine has been recently decided. Norrington goods sold, claiming the balance due, because by v. Wright, 115 U. S. 188. The reasoning of that case Deither form of action could they cut off his counter- seems to us accurate and decisive, and we follow it claim for breacb of warranty, which was the only de

without hesitation. June 1, 1886. Pope v. Porter. tense left to him, the goods having been received by Opinion by Fiuch, J. him. June 1, 1886. Sampson v. Freedman. Opinion by Earl, J.


CERTS-LICENSE.— A statute enacts that "it shall not be PRACTICE-MOTION FOR RESTITUTION--DISCRETION. lawful to exhibit to the public in any building, garden ARY ORDER-CODE, $ 1292. The court referred to in

or ground,concert room, or other place or room within section 1292 of the Code of Civil Procedure, which pro

the city, any interlude, tragedy, comedy, opera, balvides that when a judgment is set aside upon motion let, play, farce, minstrelsy or dancing, or any other the court may direct restitution, eto., is the court

entertainment of the stage, or any part or parts which sets aside the judgment; and therefore when

therein, or any equestrian, circus or dramatic perthe judgment is set aside by the General Term, the

formance, or any performauce of jugglers, or rope motion for restitution should be made at the General

dancing or acrobats, until a license for the place of Term. (2) Delay in making the motion for restitu

such exhibition for such purpose shall have been first tion is a question which appeals to the discretion of had and obtained." The Eden Musee has been in the the court to which the application is made, and where habit of giving public concerts, which its counsel dethere has been no abuse of that discretion this court

scribes as “consisting of orchestral selections of a will not review its action on that ground. June 1, high character, in a room or alcove which opens at an 1886. Market Nat. Bank v. Pacific Nat. Bank. Opinion elevation into a larger room or hall, and is on a level by Earl, J.

with a high gallery encircling said hall." This careSALE-DIVISIBLE CONTRACT.-Plaintiff and defend- fully drawn circumlocution avoids saying that the enant made an agreement in writing as follows: “Sold tertainment is upou a “stage," but the difference is to the following named parties Scotch pig iron to ar- rather in the language tbau the fact. The proof shows rive as specified below: * 500 tons of Coltness that the place is one of publio amusement to which pig iron at 36 per ton for shipment, to be due bere in visitors are attracted by the entertainment offered, to April next, 500 tous of Caulder pig iron at 34 per ton which an admission is charged, and which anybody for shipment, to be due here in March next, payable may attend upon payment of the price. It is a prion arrival here by four months' note, indorsed by the vate enterprise planned and accomplished for personal above named parties, with interest added at 6 per gain and profit like other places of public amusement cent." Plaintiff made default in the outset as to the seeking the public patronage. Without doubt it bedelivery of the Caulder iron, but claimed to recover longs to the general class of cases contemplated by the for the Coltness iron, as to which he was not in de

statute as needing more or less of government superfault. Held, that the agreement constituted one en

vision and regulation, and so required to pay a license

[ocr errors]

* *

[ocr errors][ocr errors][merged small]

fee. It is claimed however that it is neither au "en- ning of the statute, The law gives a creditor six years tertainment of the stage" nor an exhibition of “min- continued presence of his debtor within the State strelsy," and thus not within the language of the stat- after the cause of action has accrued, and tbat period ute, but is merely a concert not named or included has been deemed ample to enable the creditor to find within the section referred to. The appellant's coun- his debtor and to put the machinery of the law in sel traces to their origin what were known as min- force against him. It would lead to great ipconvenstrels, insisting that they were “strolling singers and ience and leave the bench and bar without any certain musicians" wandering about the country, and “not rule, if in every case where a debtor has resided and to be confounded with the musical artist or with the continually been within this State for six years after performer in an orchestra having a fixed abode or a cause of action against him accrued, and the statuto domicile.” Even if the test of difference between of limitations is interposed as a bar to an action to en"minstrelsy " and “musician was that one strolled force the same, it could be a matter of inquiry and and the other stayed at home, that one was a vagabond litigation upon disputed evidence whether the debtor, and the other a citizen, it is certain that the word during any portion of the time, concealed himself "minstrelsy" has acquired a much wider meaning fraudulently or otherwise, and whether the creditor and is used in the statute in that broader sense. The used due diligenoe to find him. There are some cases act of 1862 was confined to “negro minstrelsy," a in which what is now the first clause of the section phrase which designated a known and specific kind of above quoted was under consideration, and it became musical entertainment, and so made that and the necessary for the courts to determine what was a reopera the subjects of license regulations to the exclu- turn or coming into the Stato so as to set the statuto sion of what may be called concerts. But by the act of running wherein it was decided that the return must 1872 the word "negro" was dropped and the word min. be open and notorious, and under such circumstances strelsy "purposely left to its broad and general mean- that the creditor could with reasonable diligence find ing, without any qualifying or restrictive expression. his debtor and serve him with process. Little v. It was as if the Legislature had declared that instead Blunt, 16 Pick. 359; Hill v. Bellows, 15 Vt. 727; Hy8of limiting the regulation to one sort or kind of “min- inger v. Bullzell, 3 Gill. & J. 158; Didier y. Davison, 2 strelsy" it should thereafter apply to all sorts and Barb. Ch. 477; Ford v. Babcock, 2 Sandi. 518; Cole v. kinds without limitation. So broad was the act, that Jessup, 10 N. Y. 86; Dorr v. Swartwout, 1 Blatchf. C. in 1875 the Legislature deemed it necessary to spec- C. 179; 3 Pars. Cont. (6th ed.) 96; Ang. Lim. (2d ed.) ially except from its operation private theatricals and 216. A debtor might return to the State clandestinely church and Sunday school exhibitions and the like. for a few hours, in the night time, or on Sunday, or he The phrase "any other entertainment of the stage" is might be in the State on bis progress through it, and also very broad and comprehensive. Theatrical and a return of such a character which might be concealed operatic performances, minstrelsy and dancing had from and unknown to the creditor, and which would already been specifically named, and "any other en- afford him no opportunity by the use of reasonable tertainment of the stage” implied that there were diligence to serve his debtor with process, is held not others to be included. Was it meant that a boxing to be a return to the State within the meaning of the match on the stage of a place of publio amusement did statute. But it has never before this case, so far as I not need regulation and license, while an opera or a can discover, been decided that where the debtor was tragedy did? Taking the statute in all its terms it continually in the State for more than six years after evidently meant to include all classes of public ex- the cause of action accrued he was deemed to have hibitions such as are usually conducted upon a stage been without the State, and thus the running of the for the observation and amusement of the public, and statute defeated because he concealed his abode, and we see no good reasou for narrowing or restricting its thus the creditor was unable to discover him and obvious scope and purpose. June 1, 1886. Mayor, etc., serve him with process. Sleght v. Kane, 1 Johus. Cas. of New York v. Eden Musee. Opiniou by Finch, J. 76, and Poillon v. Lawrence, 77 N. Y. 208, distin

guished. June 1, 1886. Engle v. Fischer. Opinion by STATUTE OF LIMITATIONS

Earl, J. (51 N. Y. Super. 71; 15 Abb. N. C. 72, re. STATE.-Defendant, who resided in Austria in May,

versed.] 1873, there accepted a draft and came to the city of New York, where he has ever since resided. On

CODE, § 381 PARTIERSHIP ACCOUNTING.reaching New York, for the purpose of concealing Articles of copartnership under sual contained a covhimself from his creditor, he hid himself under an as- enant that "all losses happening to said firm, whether sumed name. Plaintiff, in 1882, discovered defendant, from bad debts, depreciation of goods, or any other demanded payment of the draft, and on refusal cause or accident, and all expeuses of the business brought suit. Held, that the statute of limitations shall be borne by the said parties in equal proportion." was a bar to a recovery. It is quite probable that the In an action for an accounting, held, that the action defendant perpetrated a fraud upon the plaintiff by was upon a sealed instrument within the meaning of concealing his residence from him, and that the stat- section 381 of the Code of Civil Procedure. The subute is resorted to by him to defeat a just claim. Yet ject was very fully discussed in Peters v. Delaplaine, the statute may have its operation. Ils plain language 49 N. Y. 362, which was an action for specific performcannot be perverted to remedy the hardship of any In such an action equity acts or withholds its particular case. It is a benign statute, and the Legis- | aid upon grounds peculiar to itself. A covenant to lature has written in it all the exceptions which sound convey does not give an absolute right to a convey. policy dictated to it. It may frequently operate to auce, and an action seeking that relief depends upon defeat just claims and be used by dishonest debtors other circumstances than the covenant and lies in the to escape the payment of honest debts. A cause of ac- equitable discretion of the court. In the present case tion may be barred before it is known to the claim. however the covenant and its breach gives the absoant. The debtor may purposely conceal it, and yet lute right to a recovery of the resultant damages, and the bar of the statute must inexorably be applied. A it is only in the mode of ascertaining them tbat equitdebtor who has always resided within the State may able aid is found useful. The substance of tbe action abscond from his home and conceal himself within the is to recover damages for a breach of covenant and is State from his creditors, and yet no one will claim founded upon the sealed instrument. The illustration that such debtors are to be regarded as without the suggested by the learned trial judge of the nature of State, or that such concealment will defeat the run- the action between joint obligors in a bond where one

[ocr errors]




« AnteriorContinuar »