McCue v. Washington

16 F. Cas. 1 | U.S. Circuit Court for the District of District of Columbia | 1829

ORAN OH, Chief Judge (THRUSTON, Circuit Judge, not sitting in this cause).

Upon a general demurrer the judgment must bo against the party who commits the first substantial fault in pleading. The demurrer, in this case, is special only so far as regards the rejoinder, which avers so many distinct answers to the replication, involving several negatives pregnant, and putting in issue to the jury, matters of law mingled with allegations not responsive to the replication, as to make it a bad rejoinder. But the replication itself is not a sufficient legal justification for not bringing the suit within three years. It confesses and attempts to avoid the plea of the statute of limitations, by showing that the plaintiff instituted suits in the name of the defendants, (without any objection by them,) against the managers,, whereby the three years were expended, when the defendants. by virtue of their authority as legal plaintiffs, dismissed the suits. This is certainly no legal bar to the operation of the act of limitations. The supreme court of the United States, in the case of Corporation of Washington v. Young, 10 Wheat. [23 U. S.] 400. upon the same ticket No. 1037, decided that the holders of the ticket had no right to use the name of the corporation, and sue upon the managers’ bond, without the consent of the corporation, and that no consent appeared to be given in that case; and it was upon the return of that cause to this court, by mandate, after having reversed the judgment and set aside all the pleadings up to the declaration that the plaintiffs in that cause (the now defendants) caused the suits to be dismissed as mentioned in the replication. The replication, therefore, cannot be maintained.

The pleas are good: but the first three counts of the declaration are not sufficient to support the action, because they do not state of whom the one fourth of the ticket was purchased; and because the defendants are not liable for a quarter ticket, suing alone; the only obligation of the corporation being upon the contract contained in the whole ticket, signed by their managers, as was decided in this court, in Shankland v. Washington [Case No. 12,703], at May term, 1828. The fourth count, however, for money had and received, is a good count, and, therefore, the judgment upon the demurrer cannot be. for the defendant, although the first three counts are insufficient, because the plaintiff’s special demurrer to the defendant's rejoinder, is special as to that rejoinder only, but operates as a general demurrer to the whole declaration; and upon a general demurrer to the whole declaration, if there be one good count, the demurrer must be overruled. But the plaintiff’s replication to the second and third pleas, being insufficient to support his action, the judgment upon this demurrer must be for the defendants.

It was stated by the plaintiff’s counsel, in the course of the argument in this cause, that it was the wish of the parties, that the court should decide the merits of the case upon this demurrer; and that they would ask leave to amend the declaration if the court should be of opinion that, by any such amendment as could be made consistently with the facts which appeared on the trial of the former cases, namely, Washington v. Young [Case No. 17,241]; Clark v. Washington [Id. 2,839]; and Shankland v. Washington [supra],—the plaintiff would be entitled to recover. The court has looked into those cases, and finds that although Davis, who sold to the plaintiff this quarter of a ticket, and Gillespie, who sold the ticket to Clark, must, under the decision of the supreme court in Clark’s case, be considered as the agents of the corporation for the sale of tickets, yet, that they had no right to sell less than a whole ticket, or to sell a fractional part of a ticket, so as to multiply the causes of action against the corporation at their pleasure. In the plaintiff’s printed statement of the case for the supreme court in the case of Corporation of Washington v. Young [supra], it is said that the original ticket, No. 1037, was never in the possession of the parties for whose use the suit was brought; but was retained by Gideon Davis, who sold four quarters of the said ticket, each quarter being in the terms following: “By authority of congress, $30,000 highest prize, quarter of No. 1037, in the lottery for building Lan-castrian school-houses, a penitentiary, and city hall, in Washington city, payable sixty days after the completion of the drawing. Gideon Davis, 4th.” And it is stated “that the said Gideon Davis, since the completion of the drawing of the said lottery, and before the bringing of this suit, delivered to the said managers the said original ticket, No. 1037, towards the securing and paying of the money stipulated to be paid by him. under the contract recited and set forth in the said condition,” that is, of Davis’s bond to the managers. The ticket had been sold and delivered by the managers to the said Davis, under that contract. It will be perceived that the certificate given by Davis for the quarter of the ticket, appears to be his-own individual act It does not name the managers, nor allude, in any manner, to the authority or responsibility of the corporation of Washington. We think, therefore, that it must be considered as his personal engagement only, and that it cannot, in any manner, bind the corporation. The judgment upon this demurrer must, therefore, be for the defendants.