Platt v. Jones , 59 Me. 232 ( 1871 )

Danforth, J.

This is an action upon § 47, c. 113, of R. S. of 1857, and comes before us upon spiecial demurrer to the declaration.

The first objection is that it does not affirmatively appear, that the plaintiffs were creditors of the alleged fraudulent grantor at the date of the several sales and conveyances complained of. This, if true, is a defect in the declaration. Herrick v. Osborne, 8.9 Maine, 231. The allegation is that “ on the twenty-third day of January, 1869, said sums of money, as mentioned in said orders, were due said plaintiffs and unpaid . . . from the said James F.' Hirst, which said sums and interest still remain justly due and unpaid to the said plaintiff surviving partners as aforesaid.”

This seems to be a sufficiently distinct averment of the existence of the relation of debtor and ci*editor between the plaintiffs and said Hirst, on the twenty-third day of January, 1869, and that it continued from that time up to the dale of the writ. But the first sale complained of is stated to have taken place “ on or about ” the twenty-third day of January. This averment would be proved by showing that the sale took place on the twenty-second, in which case it is very clear, the allegation of indebtedness does not cover that of the sale. But the declaration is further defective in this respect, in not setting out definitely when the several transfers did take place. One of the fundamental rules of pleading.is that there must be certainty as to time. “ The day, month, and year when each traversable fact occurred” must appear. Stephen on PI. 292 ; 1 Chit, on PI. 257.

This must be done even where it is not material to prove the time as laid. The words “ or about ” take all certainty from the allegation and virtually leaves the declaration without any time. State v. Baker, 34 Maine, 52. Leaving out these words and the time of the conveyance would be definite, and correspond to the allegation of indebtedness.

As this defect may be amendable, it will be necessary to examine the other objections raised.

The second objection is, that it does not appear that the necessary steps were taken to fix the legal liability of Hirst upon the orders referred to.

Were this necessary, we see no objection to such an amendment as would supply the deficiency in this respect. Enough is set out to show the nature and ground of the debt. The orders given by Hirst are not only described in full, but the original transaction out of which they grew is set out. It is further alleged, “ that said sums of money, as mentioned in said orders, are still due,” etc. The addition of the necessary facts to render the drawee liable would in no respect change the nature or extent of the debt. But we think the claim against Hirst is sufficiently set out. This action is not against the party to the orders. It does not rest upon them or upon the merchandise sold as its basis, but upon the statute. The debt is a fact to be proved, and not the foundation of the action. If the orders were not a discharge of the original debt, then it is fully set out. If they were, then Ave haAe enough to show the origin, nature, and extent of the demand. In Herrick v. Osborne, 39 Maine, 231, there seems to have been only a simple declaration of indebtedness with the amount, and though a demurrer Avas filed, no objection appears to have been raised on that account. The statute gives the remedy to any creditor, and to render it available the plaintiff must prove the relationship of debtor and creditor, and so much he must allege, as in Herrick v. Osborne, but more than this we see no necessity for.

The third ground of demurrer is, that the declaration is bad for duplicity.

It is not quite accurate to say that two causes of action in one count render it double. Several items of account may be very properly embraced in one count, and yet each one of those items might be a good cause of action. So in the case of several trespasses upon the same lot of land. Stephen, in his work on Pleading, says the meaning of duplicity is, “ that the declaration must not, in support of a single demand, allege several distinct matters, by any one of which that demand is sufficiently supported.” Stephen on Pl. 242. See also, 1 Chit. on Pl. 226; Dunning v. Owen, 14 Mass. 163, 164; Lord v. Tyler, 14 Pick. 164; Hooper v. Jellison, 22 Pick. 250.

There can be but one demand to each cause of action, but as many matters or facts as are necessary to support that demand, not only may, but must be set out in one count.

In the case of an account annexed, or of trespass, but one demand is made. A demand,, however, which can be fully supported only by the proof of each item or each trespass set out. A claim might be sustained by proof of a single item or a single trespass, but it would not be the same as that supported by the m'any. In the case at bar the demand is one.. The plaintiffs ask redress for an injury to a single interest, their interest as the creditors of James F. Hirst. The amount demanded is double the value of, not one piece of property merely, not of property conveyed at any one time, but of all the property which the defendant has wrongfully aided the debtor in concealing or transferring to secure it from his creditors. To support this demand of the plaintiffs, they must prove all the conveyances they have alleged. Any one of them might support a different and less demand, but that which is claimed can be sustained only by proof of all. All these different conveyances are but different facts or matters which are the necessary elements of the demand claimed in the writ.

The fourth and fifth causes of demurrer are similar, and rest upon the fact that it does not appear that the legal title to the property conveyed was in Hirst and liable to be taken on execution against liim. The kind of property is stated so that it may be seen whether it is liable to seizure on execution, and it is also alleged to be the property of Hirst. This is sufficient and will be sustained by proof that it was liable to be taken for his- debts by the proper legal process. Upon this point the case of Spaulding v. Fisher, 57 Maine, 411, is decisive.

This disposes of all the special causes of demurrer. But it is claimed that these plaintiffs, as surviving partners, cannot sustain this action, and the first objection is, that it does not appear that they have given the bond required by the R. S. c. 69, §§ 1 and 2. They have adopted the usual mode of declaring in such cases, and it is believed the only mode in which the action can be sustained. By the common law surviving partners are entitled to the possession of the partnership property, and must in their own names bring all actions necessary to its protection, and especially for the collection of debts due the firm.

Collyer on Partnership, 117, and cases cited. The statute referred to, R. S. c. 69, makes no change in the form of the action or the name in which it shall be brought. It may change the possession and control of the property, giving it to the representative of the deceased partner. But even then the action must, or certainly may be brought in the name of the survivor. Same c. § 4. The rights of the parties are the same whether the suit is prosecuted by the survivors or the representative. Therefore as the form of the declaration is the same whether they have or have not given bond, this question is not raised by the demurrer.

It is further claimed that the plaintiffs are but joint-owners of the debt against Hirst, with the representative of the deceased partner, and that in relation to it an action of tort cannot be sustained without joining all the owners. The principle of law invoked may be a correct one, but is not applicable to this case. The parties are but joint-owners of what property may be left after a settlement of the partnership affairs. But until that settlement is accomplished, it cannot be known whether there will be anything left or whether all the property may not belong to the survivors. In any event, by the authorities already cited, it abundantly appears that the survivors are owners in trust or otherwise until the settlement, and whatever the law allows to be done for the purpose of settlement must be done by them- as owners, or in their names, and for this they are legally the owners and entitled to all the rights and remedies of owners.

The final objection is,' that the statute upon which this action is based does not afford a remedy in a case like the present. This objection is attempted to be sustained by reasoning similar to that on which the last is founded, and like that must fall. It must be remembered that this statute is a remedial one, to enable creditors to recover their debts. Quimby v. Carter, 20 Maine, 218.

The plaintiffs are seeking to recover a debt of which they are equitably if not legally the owners and sole representatives. They are the creditors, and it is to creditors that the remedy is given.

They come, therefore, within the letter as well as the spirit of the statute, and we can see no reason for giving a constrained construction of so wholesome a statute, 'for the purpose of relieving any one who may be amenable to such provisions as may arise from a fair interpretation of its language.

The result is, we find, no'defect in the declaration except its indefinite allegations of time, and for this, the exceptions and demurrer must be sustained.

Appleton, C. J.; Kent, Walton, DicKERSON, Bakkows, and Tapley, JJ., concurred.