Travis v. Tobias

It appeared on the trial that the plaintiff, Tisdale, was not a member of the firm, or interested in the vessel at the time of the sale in 1848. So I understand the testimony of the first witness of the plaintiffs. If so, he was not a party to the sale, or the notes given for the property; and there was no fraud practised upon him, nor had he any interest in the matter. If the notes belonging to the old firm, became the property of the new, that would not authorize this suit, which is for a fraud committed upon the *334old firm. And if the claim for damages occasioned by the fraud, had been assigned to the present plaintiffs, that fact should have been averred. Indeed, it seems doubtful whether a cause of action for a tort could have been assigned, even under the Code of 1849, (2 Stor. Eq. Jur., § 1040,j Gardiner agt. Adams, (12 Wend. 297.) It has been thought this might be done, before the Code was amended. Kellogg agt. Church, (3 Code R. 53, Van Santvoord Pl. 84.) But it has been considered against public policy. However, it is enough that there was no allegation in the complaint, or proof on the trial, of an assignment. The pleader, probably, was not informed that Mr. Tisdale was not a member of the firm in 1848.

The judge on the trial, intimated that he would allow the plaintiffs to amend by striking out the name of Tisdale. But no motion to that effect was made, nor was the amendment made, in fact. And such an amendment, as á general rule, should not be made instanter on the trial. (Section 169.) Perhaps an amendment may be made by striking out one of the parties, plaintiff, after an attachment has been issued. (Section 173.)

Whether, in such a case, a continuance of the suit, in the name of his co-plaintiffs would exonerate the one struck out, from a claim for damages, or all of them, from liability on their undertaking, need not now be considered. The amendment should be made on motion and on just terms. I am inclined to think it can be done on giving and filing a new undertaking, nunc pro tunc, and amending all the pleadings and process, and the court should see that no injustice is done to the defendant. However, there is no motion to amend before us, and we cannot order it done on this argument.

It is unnecessary, at this time, to notice any of the other points. There should be a new trial, the costs to abide the event.

Ordered accordingly.