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Allen agt. Allen and others.

Missouri ; that when he left he had a wife and children, who went with him, and whose names the plaintiff is unable to state. The defendants in the action are the three persons residing in the state of Arkansas, and “ Thomas Allen, his wife and children, and others, owners unknown.” Upon this state of facts, the plaintiff moved for an order, that service of the summons be made by publication.

Darius Peck, for plaintiff.

HARRIS, Justice. When this application was presented, I had great doubts whether it could be brought within the provisions of the Code. But, upon further consideration, I am satisfied that the plaintiff is entitled to the usual order authorized by the 135th section.

Besides the three who reside in Arkansas, the other defendants are really “unknown owners.” Thomas Allen has not been heard from in more than twenty years, and is probably dead. Who the persons are who have succeeded to his interest in the lands, the plaintiff has been unable to ascertain. It was very well, instead of proceeding against “unknown owners” merely, in respect to the interest which would have belonged to Thomas Allen, if living, to state that the proceeding was against “ Thomas Allen and his wife and children, and others, owners unknown.” But, in effect, it is a proceeding against "unknown owners.

The question, therefore, is, whether, in an action for partition, in which the plaintiff is obliged to make unknown owners defendants, he is to proceed against them in the manner prescribed by the 135th section of the Code, or, regarding the case as one not provided for by that act, is to pursue the practice as it existed at the time of the adoption of the Code.

By the 175th section of the Code it is provided, that “when the plaintiff shall be ignorant of the name of a defendant, such defendant may be designated by any name.” Here the plaintiff, being thus ignorant, has designated the persons who are proper parties defendant in the action, as “ Thomas Allen and his wife

Drew agt. Duncan.

and children, and others, owners unknown.” This, I suppose, is a sufficient designation. It indicates as clearly as possible who are the parties intended.

It also appears that the persons thus intended have an interest in the subject of the action, and thus the case is brought within the 4th subdivision of the 135th section.

An order must, therefore, be entered, directing that service of the summons in this action be made upon all the defendants therein, by the publication thereof in the Albany Evening Journal and the Democratic Freeman, once in each week, for twelve weeks, and also that a copy of the summons and complaint be forthwith deposited in the post-office at Hudson, directed to each of the defendants residing in Arkansas.

SUPREME COURT.

GEORGE S. DREw agt. Michael Duncan.

Where the purchaser of a house and lot entered into a written contract with the

vendor to pay down $300, and to pay $200 more in four days thereafter, and the balance on the delivery of the deed, and the purchaser paid the $300 down, but neglected to pay any further sum for several months, when the vendor contracted with another person for the sale, and put him in possession of the

premises, Held, that the vendor was entitled to an order cancelling the contract with the

first purchaser, notwithstanding the latter stated his willingness then to comply with the contract. He had failed to make his payments in time, and was not thereby entitled to a specific performance of the contract, consequently the converse of the proposition was true, and the vendor was entitled to relief.

New-York Special Term, 1854.

This controversy arises out of a contract made on the 30th of April, 1853, for the sale and purchase of a house in Lexington avenue. Three hundred dollars of the purchase money, it appears, was paid down: two hundred more was to be paid four days after, on the 3d of May, and the balance, say fifteen hun

Drew agt. Duncan.

dred, on the delivery of the deed : it being understood that the premises were, and were to remain, subject to a mortgage of six thousand dollars.

BUSTEED & Wilson, for plaintiff.
Malcolm CAMPBELL, for defendant.

ROOSEVELT, Justice. The house, it was stipulated, was “to be finished complete ;” and the proof shows that it was so in a few days after the contract was signed. Still, the purchaser did not make, nor offer to make, the second, and of course not the last, payment. He seems to have relied upon the assumed doctrine—unfortunately too prevalent—that “time is never of the essence of a contract," and to have treated as a dead letter the express stipulation, that the deed was only to be given “on receiving payment at the time and in the manner above mentioned." The vendor, however, viewing the matter in a different light, after waiting several months, selected another purchaser; and having made with him a contract, and delivered to him possession, now asks that the record of the agreement previously entered into and not complied with, may be cancelled; and that the cloud upon his title, which that record creates, and in consequence of which part of the consideration is withheld, may be removed.

To which of the purchasers, then—for that is, in effect, the question—ought the title of this house to be given ? to the one in possession, who has fulfilled, and stands ready to fulfill to the letter, or to the one out of possession, who neglected to pay at the time stipulated, and who, although talking of his willingness, does not even now offer to bring the money into court.

It seems to me perfectly clear, under the circumstances, that the defendant is not entitled to a specific performance, and, as the legitimate converse of the proposition, that the plaintiff is entitled to relief. Should the defendant, notwithstanding his default, deem himself entitled to recover back the $300, he may test that question by a suit for damages. The record of the contract is not necessary for that purpose, and its cancel

Dunning agt. Thomas. ment will not prejudice his claim, if otherwise well founded. I do not wish, however, in this remark, to be considered as giving any encouragement to such a suit. In my view of the law, a person selling real estate has the same right to make punctuality in time, as he has sufficiency in amount, a condition precedent; and that it is as much “the duty of the courts," as the Revised Statutes express it, (1 R. S. 748,)“to carry into effect the intent of the parties,” in one respect, as in the other. There is a most essential difference—although the two things have sometimes been confounded—between relieving against the forfeiture of a right already vested, and dispensing with the conditions of a right which, without such conditions, had never accrued. The former is an exercise of the necessary jurisdiction of a court of equity, the latter, a mere assumption of arbitrary, and, in my view of the statute, of prohibited power.

A decree must, therefore, be entered, directing the record of the first contract to be cancelled ; and also awarding costs and an extra allowance to the plaintiff, unless the defendants stipulate not to bring an action for damages to recover back the instalment of $300 paid on signing the papers.

SUPREME COURT.

MARTHA JANE DUNNING agt. WARREN THOMAS.

The theory of the Code in reference to pleading is, that the party pleading knows,

or should know, beforehand, what is the truth of his case, and that he should

state the truth, and nothing but the truth, in his pleading. The statement of the case in different forms, for the purpose of guarding against a variance between the allegation and the proof, is no longer necessary. If there is any variance between the allegations and the proofs in any of the details of the case, the party will, upon the trial, be allowed to amend, so as to adapt his pleading to his case as proved, upon such terms as may be just

provided no new cause of action is stated. It is impossible, in the nature of the case, that there can be four distinct causes

of action in an action for breach of promise of marriage.

Dunning agt. Thomas.

And where the complaint in such action stated, first, a promise by the defendant

to marry the plaintiff upon request; second, generally, a promise to marry the plaintiff'; third, a promise to marry in a reasonable time; and, fourth, a

promise to marry when the defendant should be disengaged from another, Held, that each of these promises was to be regarded as but a reiteration of the

first, only varied in its terms. The complaint was set aside, with costs, with liberty to amend.

Albany Special Term, March, 1855. Motion to strike out complaint, &c.

The action was brought to recover damages for a breach of promise of marriage. Four causes of action are stated in the complaint. The first count states a promise by the defendant to marry the plaintiff when he should be requested so to do. The second count states generally a promise to marry. The third count states a promise to marry in a reasonable time. The fourth count states a promise to marry the plaintiff when the defendant should obtain a release, or discharge from an obligation he was under to marry one Mary Ann Waring, and that he had obtained such release or discharge. In each count it is stated that, after making the promise alleged, the defendant had married another person.

The defendant moved to set aside the complaint, or that the plaintiff be required to elect upon which one of the four counts in the complaint she would rely.

In opposition to the motion, the plaintiff's counsel produced an affidavit, stating that each of the promises, stated in the several counts of the complaint, had been made by the plaintiff.

J. W. Culver, for plaintiff.
Geo. G. Scott, for defendant.

Harris, Justice. It is required of the plaintiff, in every action, that he state the facts which constitute his cause of action in a plain and concise manner, and without unnecessary repetition. In some cases, several causes of action may be united in the same complaint. But the plaintiff is no longer authorized

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