Page:Federal Cases, Volume 16.djvu/6

McCUE (Case No. 8,735) the plaintiff, on the 1st of July, 1818, became the lawful owner and possessor of one fourth part, or quarter share of the said ticket, No. 1037, which, in the course of the drawing, which terminated on the 21st of July, 1819, drew $10,000; and, on the 1st of October, 1819, the plaintiff demanded of the defendants payment of the said fourth part of the said prize, "by means whereof the defendants became liable," &c. &c. 4. The fourth count is for money had and received.

To this declaration the defendants pleaded: 1. Non assumpserunt. 2. Non assumpserunt infra tres annos. 3. Actio non accrevit infra tres annos.

Upon the first plea, the issue was joined. To the pleas of limitation, the plaintiff, in his replication, says that he ought not to be precluded from having his action, because he says, "That the defendants standing in the relation of trustees for the benefit of the fortunate adventurers in the said lottery, and for the purpose of insuring the payment of such prizes as they should draw therein, took bonds from the said managers respectively, each in the penal sum of $10,000, to be paid to the said defendants, if the said managers should not diligently and impartially exercise and perform the duties and authority vested in them by the said ordinance of the 24th of July, 1815; and that afterwards, when the said lottery had been fully drawn, and the said plaintiff had demanded of the said managers the payment of the said prize so as aforesaid drawn by him, and the said managers had refused to pay the same, or any part thereof; and when the plaintiff had obtained from the register of the said corporation of the city of Washington, who had the lawful custody thereof, copies of the said bonds taken as aforesaid from the said managers, and instituted suits thereon in the name of the said defendants, for the use of the said plaintiff against the said managers (without any objection made thereto by the said defendants) for the recovery of his share of the said prize so as aforesaid drawn; and when the said plaintiff had prosecuted the said suit in the circuit court of the United States for the District of Columbia, and for the county of Washington, and in the supreme court of the United States by writ of error; and when, by mandate from the said supreme court to the said circuit court, the said plaintiff was about to receive the benefit of the said suit by obtaining a judgment against the said managers for his share of the said prize, they, the said defendants, in violation of their duty, and in utter disregard of the trust so reposed in them by every law of decent morality, and by the fan: intendment of the said act of congress, did then, that is to say, on the 1st of January, 1825, at the county aforesaid, by virtue of their authority, as plaintiffs at law (the suit being in their name as plaintiffs) cause the said suits to be dismissed, whereby the said plaintiff was unjustly and oppressively deprived of all benefit derivable from the said suits; and this the said plaintiff is ready to verify, whereupon he prays judgment." &c. To this replication the defendants rejoined as follows: "And the said defendants pray oyer of the copy of the bond and condition thereof, in the said replication mentioned; and it is read to them as follows, to wit," &c. They also "pray oyer of the record and process of the said suit in this court; and of the said mandate from the said supreme court in the said replication mentioned, and the same are read to them as follows," &c. "All which being read and heard, the defendants say, that the plaintiff ought not to have or maintain his action aforesaid against them, by reason of any thing by him above pleaded or alleged by way of replication to the second and third pleas of the said defendants," because they say that they did not take the "said bonds as trustees for the said plaintiff, or other of the fortunate adventurers in the said replication mentioned; nor was the said suit in the said replication mentioned, commenced or prosecuted by the said defendants, or with their assent or authority, for the use of the said plaintiff against the said managers; nor was the plaintiff about to recover any judgment in the said suit, against the said managers in virtue of the said mandate or otherwise; nor did the defendants, in fraud or violation of their said pretended trust, cause the said suit to be dismissed; nor did the defendants, at any time, within three years next before the commencement of this suit, make any such promise or assumption as in the said declaration is alleged; nor did the plaintiff's cause of action aforesaid arise, or in any manner accrue at any time within the said three years, in manner and form as the plaintiff, in his said replication to the said second and third pleas of the defendants, has above pleaded and alleged, and of this he puts himself upon the country." To this rejoinder the plaintiff demurred; and stated for cause of demurrer, that the defendants have thereby tendered an issue to the country; which issue is not responsive to the said replication; and is an immaterial issue.

Ashton & Key, for plaintiff.

Wallach & Jones, for defendants.

CRANCH, Chief Judge (THRUSTON, Circuit Judge, not sitting in this cause). Upon a general demurrer the judgment must be 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