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Bucknam a. Brett.

in the name of the survivors. So also in actions ex delicto, for injuries to personal property, joint-tenants and tenants in common must join; and where one of several parties, interested as such, dies, the action must also be in the name of the survivor or survivors alone, and the executor or administrator of the deceased cannot be joined, nor can he sue separately. (1 Chitty's Pl., 77.)

This is the well-known and well-established rule of commonlaw practice and pleading. The several part-owners of a vessel are tenants in common; like tenants in common of other property, they must join, in an action at law, for the recovery of damages caused by an injury to it; and, in case of the death of any part-owner after the injury is sustained, the right of action. survives to the surviving part-owners, who must afterwards pay to the personal representatives of the deceased the value of his share. (Abbott on Shipping, Am. ed., 1846, 146.)

These rules were founded in utility. They were designed to avoid the inconvenience resulting from uniting persons who sue in their own right, with those who sue in a representative capacity. It would be difficult in case of a recovery against the plaintiffs, to enter a judgment upon the verdict, the representatives not being liable for costs in the same manner in which the other plaintiffs are liable. The executor of a deceased person cannot be jointly sued with the survivor, because, if for no other reason, the executor is to be charged de bonis testatoris, and the survivor de bonis propriis, and the judgment could not be so rendered. So, when several persons are jointly interested in the property injured, and one of them is dead, the action must be maintained in the name of the survivor; and the executor or administrator of the deceased cannot be joined, nor can he sue separately.

Have these rules of the common law been abrogated or altered by modern legislation in this State?

The counsel for the appellant claims that they have been, because the statute (3 Rev. Stat., 5 ed., 202), varying the rule of the common law, in case of injury to real or personal estate, makes such a cause of action survive, and gives to the personal representatives of the deceased owners the right of action. But this enactment was evidently made, not to enable the representatives of deceased joint-owners of property to be united with the

Bucknam a. Brett.

survivors, but to prevent the total failure of a remedy, where the sole owner of property died before he obtained redress for any injury to it. This would be repeating a law by something worse even than implication. There is nothing to imply, even remotely, any such intent on the part of the Legislature.

He refers us also to § 111 of the Code, which says that every action must be prosecuted in the name of the real party in interest. He may, for the same purpose, with equal if not more propriety, refer us to § 119, which says: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants." But it is plain to me that these sections were not intended to contravene the rules of the common law to which I have referred. In order to have this effect, it would require something more positive and direct than the language conveys. If applicable at all, it is applicable to property held in copartnership as well as to any other kind of joint-ownership; and, certainly, I have never heard or read that any one has ever insisted that it was necessary to join the names of the executors or administrators of a deceased member of a mercantile firm with those of the surviving members, in an ordinary common-law action, for a debt due to the firm, or for an injury to its property.

The judge was, therefore, substantially right in his ruling on this subject, although he seemed to confine the principle upon which I have commented to a copartnership. But this, doubtless, was a mere verbal inadvertence.

With regard to the offer on behalf of the defendants to prove that Sumner Bucknam and Ezra Bucknam were indebted to the defendants at the time of issuing the attachment, and then to claim that they were therein described as John Doe and Richard Roe, &c.,-such evidence, if admissible at all, was not admissible under the pleadings, and the judge properly rejected it.

Judgment should be affirmed with costs.

LEONARD, J.-I concur. There was also a question raised by defendants by an offer to prove an indebtedness from plaintiffs to defendants. No such defence had been pleaded, and the evidence was properly excluded.

Judgment affirmed.

Freeman a. The Atlantic Mutual Insurance Company.

FREEMAN a. THE ATLANTIC MUTUAL INSURANCE COMPANY.

Supreme Court, First District; General Term, October, 1861.

REFERENCE.-ACCOUNT.

An action upon a policy of insurance, brought to recover for the loss of a single shipment of goods, which is defended upon the ground of fraud, cannot be referred without consent, although the schedule of the shipment may contain a large number of distinct items.

It seems, that an issue of fraud ought to be tried by a jury.

Appeal from an order of reference.

This was an action on a policy of marine insurance. The complaint stated the shipment and loss of the goods insured, amounting in value to $6,500, in thirty-seven different items, all shipped within three days. The answer denied the shipment. The plaintiff moved, at special term, for a reference, upon a general affidavit that a long account was involved. The defendants opposed, upon an affidavit that the shipment was fraudulent. The order of reference was granted, and the defendants appealed.

D. D. Lord, for the appellants.-I. This was not, and could not be referred as, a long account. The delivery was all at one continuous time; there were no items of payment or set-off, and it was not an account at all. (Swift a. Wells, 2 How. Pr., 79; Miller a. Hooker, Ib., 171; McCullough a. Brodie, 13 Ib., 346; McMaster a. Booth, 4 Ib., 427; Van Rensselaer a. Jewett, 6 Hill, 373; Thomas a. Reab, 6 Wend., 504.)

II. The defence being fraud in the shipment, the defendants have a right to trial by jury, and reference cannot be by compulsion. (Levy a. Brooklyn Fire Insurance Co., 25 Wend., 687; Silmser a. Redfield, 19 Ib., 21.)

D. McMahon, for respondents.-I. The order being one of

Freeman a. The Atlantic Mutual Insurance Company.

reference, in a case wherein a long account of items was necessarily involved, could not be appealed from. (Ubsdell a. Root, 3 Abbotts' Pr., 142; Bryan a. Brennon, 7 How. Pr., 359.)

II. The case was one wherein a long account was necessarily involved. The plaintiff sued to recover the amount of a policy of insurance on a shipment of goods consisting of thirty-seven items. To this the defendants answered, denying that the goods, or any part of them, were shipped. The direct issue, therefore, was, whether these goods, or any part of them, went on board. The trial of each item involved the long account. The motion papers so stated; and in such a case, the judge who granted the order, had a discretion in the premises, which cannot be reviewed. (Dean a. Empire State Mutual Insurance Co., 9 How. Pr., 69.)

III. The defendants, after the granting of the order, did not immediately appeal, but suffered the plaintiff to get ready and proceed to trial, admitting due service of notice of trial. Under these circumstances, he is now too late to urge his appeal. (Ubsdell a. Root, 3 Abbotts' Pr., 142.)

BY THE COURT.*-The claim of the plaintiff in this case, upon which the motion for a reference was based, was to recover for a lot of goods alleged by him to have been put on board of the vessel which was lost. Although the quantity and value of the goods were necessarily involved, yet it can hardly be said that such a claim involved the examination of an account. An account of one party against another is a series of charges for goods sold, &c., and is not merely introduced in evidence for the purpose of estimating damages, but is the foundation of the

action.

As the whole defence in this case rests upon the alleged fraud of.the plaintiff, in not putting the goods on board, and also that the vessel was intentionally wrecked; and as both issues involve directly a charge of fraud, we do not think the case should have been referred; such questions are properly to be tried by a jury. The case in 25 Wend., 687, is directly in point.

Order reversed, with costs.

* Present, CLERKE, P. J., INGRAHAM and LEONARD, JJ.

McMahon a. Allen.

MCMAHON a. ALLEN.

Supreme Court, First District; Special Term, November, 1861.

APPEAL FROM ORDER GRANTING A NEW TRIAL.-STAY OF PROCEEDINGS.

On appeal from a judgment, the general term ordered a new trial, and an appeal was taken from the order to the Court of Appeals. The appellant gave security on appeal in $250, as required by section 334 of the Code. Held, that this did not operate as a stay of proceedings.

The only way in which a stay of proceedings can be procured in the court below, after an order for a new trial has been made by the general term, is by a motion directly for that purpose.

Motion to strike cause from circuit calendar for irregularity.

The facts are sufficiently stated in the opinion.

D. McMahon, for the motion.-I. The appellant (being the plaintiff) complied with the requirements of subdivision 2 of section 11 of the Code when he took his appeal and gave the stipulation. The undertaking, under section 334, was all that was required to make his appeal effectual.

II. A careful comparison of sections 334-339 of the Code will prove that on an appeal from an order preceding a new trial, all the appellant is required to give as security is the undertaking under section 334. Section 335 applies to appeals from judgments directing the payment of money. The Code is silent on the subject of appeals from orders.

III. The defendant, who succeeded in reversing the plaintiff's judgment, has no fixed right to costs until the new trial is had and judgment obtained. Therefore, no security can be given until that event happens, for there is no method whereby his costs may be fixed.

Matthews & Swan, opposed.-I. This motion is premature, as the act of the defendant is not prejudicial to the plaintiff, and

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