The Portland daily press., 1885-05-12
THE "MoLASSES" CASE.
A Law Suit in which Many Port
land Merchants are Interested.
The Full Text of Judge Virgins De-
clsiOn.

The Full Text of Judge Virgins De-
cisiOn.
The history OF this suit which Is some what
familiarly known as the "MolAsses Case" and
concerning which the PRESS some time since
published a statement of proceedings up to
that time, is substantially as follows: Irving
o. Whitney & Co. of Boston, had large tran
sactions with the firm OF Burger, Hurlbut &
Livingstone of New York city, In molssses up
to August %, 1884. On the first day OF Septem
Der, John A. Liviagstone died suddenly, and
on the 11th of same month the surviving part
Ders, who ara the defendants in this suit made
an assignment to Frank Fl. Platt Esq, of New
York city, for the benefit OF their creditors.
At the time of this assignment defendants were
indebted to Whitney & Co., upon open &C.
count for more than 5000 and on the 18th Of
September this action was commenced, return
able to the October term, 1884, OF the Suprsms
Judicial court. and SS hogsheads of molasses
in this city, attached upon the writ as the prop
erty OF defendants and service made upon
Messrs. Z. NJ Steadman & Co., Conant, Pat
rick & Co., II. 8. Melcher & Co., Woodbury.
& Latham, John Dennis & Son, Williams,
Skillin & Co., and @. A. Weston & Co., a.
alleged trustees of the principal defendants,
each of said firms having purchased molassss
from defendants firm through W. G.. Souls
Esq, their broker in this city-the aggregate
amount due from the trustees being something
over "a 900.
The action was duly entered in court and
NLa Il Il Elsra ANus. .~Al.
ures and it appearing that the goods. effects
and credits in their houses were claimed by
said Platt under his assignment, notice was
ordered on the defendants and claimant 70.
turnable at the January torn, when the de-
fendants aud claimant appeared by the Attor-
neys, MattocKs & Neal and the case was con.
| tinued to the April term. On the 9th Of JAM
usry, Whitney q Co., brought suit in New
| York city where the defendants reside and do
business and on the Atm OF February judgment
was rendered in that suit in favor Of plaintiff
| for So S34 SO debt and S20.13 costs.
On the 4th of February ana after the rendi-
| tion of this Judgment in New York, Platt the
assignee, brought suits against all the parties
named as trustees in this action, returnable ct
| the April term Of the Superior court In this
county, and also brought suit against Elisha
| n. Jordan, deputy sheriff. to recover 81, ,636 70
being the smount received by him for the 3S
hogsheads OF molasses attached on the writ Of
September 18th, and sold by the deputy Bher.
| i'll, January 10th, By consent Of all parties.
| On the 7th of February, Whitney & Co.,
brought suit on their NewYork City Judgment
returnable at ths April term of the Supreme
Judicial Court, summoniDg all the parties
namsd as trustees in the first suit, end they
have come in again and filed their several
disclosures Notice has been ordered upon the
| defendants and Platt as claimant, returnablo
| at the October term.
The suits in the Superior Court have been
| continued, to be continued till further order
of court Of the first day OF the term, without
| cost to either party by agreement. So the one
| suit OF September 18th, has finally developed
| into ten (lO) suits. Tue decision of Judge
Virgin sets out the issue upon which he found
| for the defendants in this case, and IL his rul-
| ing is not reversed by the Law Coart upon ex-
| ceptions, will end the first suit leaving the
parties to fight it out on soma other line 10 the
succeeding suits. The Portland merchants
are simply shareholders and are, and always
have been ready and willing to pay once for
the goods purchased by them. So many per-
sons being brought into court 6s trustees and
the expenses OF attachment aud sale Of molas-
ses being large there will be large bills OF cest
for somebody TO pay when the cases are finally
determined. This case was tried before Judge
Virgin by George f. Holmes, Esq, for plain
tiffs and W. X. Neal for defendant, and claim
aut and occupied two full days. The new
firm OF Mattocks, Coombs & Neal will have
the cases in charge in behalf of defendants
| and claimant hereafter.
The following is the full text OF Judge Viz
gins opinion;
SUP. JUD. COURT.
CUNBER LAND IS. April T., 1885.
Whiting & al. VS.. Burger s. al. g. Trs.
Assumpsit on an account annexed containing eight
items, beginning with June and ending August
20, 1884.
The writ was returnable to and entered at the
October term 1884. The action was continued to
the January term, 1855, and then to this (AprtD
term.
oa the first day of this term april 14) tho de-
PENDANTS obtained leave of court to hle special
pleadings on or before April 10 on which last
named day they filed plea for the further maints-
nance Of this action on the alleged ground that the
plaintiffs on February 4, 1886, In the Supreme
Court in and for the city county and State Of New
York, recovered Judgment against the defendants
on the identical cause OF action set forth In this
action.
On the seventh day of this term (April 2l) the
plaintiffs moved to set aside and strike out said
pea for the reason that the Judgment set forth In
said plea was recovered after the continuance OF
this action at the October term and before It's con-
tinuanee at the Anuary term. which occurred on
April 7. 1885, which motion overrued.
On the 18th day of this term april 27th) the
plaintiffs filed special demurrer (Which was
joned) 10 said plea assigning the several causes
therein specified;
L. That the plea should have been filed before
the continuance of this action on April a 1885, and
that the defendants did not obtain leave Of 70
| hle the plea on April 10. rule that the leave
granted to file specia pleadings before April
IL before mentioned coupled with the overrung Of
the paintiffs motion to strike out said plea con-
sttuted sufficient leave TO hle said plea on April
1S if such leave were necessary the same having
been filed before issue Joined.
2. That the plea does not allege that the after
pleaded arose since the last conIiu Of the ao-
tion before the same WAS pleaded, and that no
leave of court was obtained to plead the same after
another continuance.
L rule that no such allegation was necessary ana
that leave was obtained as stated under cause
No. j.
g.. That the plea although it processes to answer
the whole declaration does not answer items aud
2 of the dates June 80 and July 81, 18S4-$10S.1k
and S56.33.
find that the plaintiffs, on February 4. 1885.
county and state of New York, then
and there having Jurisdiction of the
subject matter and parties, recovered judgment
against tue defendants for the identical sales Of
molasses described and set forth In items g. g.
in the plaintiffs specifications Ia this action,
together with the SUN Of S1U314 and Of S56 33 OF
the respective dates of June 80 and July 81 1884.
That these two sums and dates are the same a.
plaintiffs items l aud their specifications;
that the eight items In the plantfs specifications
and the eight items mentioned in their com plaint
in their New York action. and on which ju igment
was there rendered as above mentioned, comprise
all Of the negotiations between the plaintiffs and
defendants from June /, to August 20, 1884, ox-
cept a sale Of merchandise by the de-
PENDANTS to the plaintiffs, Of July TO- 1884,
and mentioned on the credit side OF the
plaintiffs specifications in this action, and that the
items in the plaintiffs specifications in this action
on which alone they seek to recover juigmeAt here,
and the items in their complaint In their New York
action aforesaid have reference TO and include the
same identical Transactions and o,ner. 1 there
fore overrule the demurrer far the third
assigned.
also overrule the demurrer so far as the fourth
and fifth causes assigned and adjudge the plea
good.
also find the allegations in the plea sustained
and order Judgment Tor the defendants.
VIM. wIRP VIRGIN,
Justice 5. j. o., presiding.