Kryn v. Kahn

• Decision Date: 31 March 1903
• Citation: 54 A. 870
• Parties: KRYN et al. v. KAHN.
• Court: New Jersey Supreme Court

54 A. 870

KRYN et al.

v. KAHN.

Supreme Court of New Jersey.

March, 1903.

At Chambers.

Action by Jacques Kryn and others against Arthur H. Kahn on a capias ad respondendum. Application by defendant for a discharge on common bail and to quash the writ. Application denied.

C. L. Cole and Robert H. McCarter, for the motion.

Colie & Duffield, opposed.

HENDRICKSON, J. The first ground of the motion is that the writ issued before the filing in the clerk's office of the affidavits and order to hold to ball. It appeared that the order was made at Atlantic City by a commissioner of this court in the evening of June 13, 1902, and that the arrest was made the same evening, and that the papers were received by mail and filed the following morning. The clerk, in compliance with a custom of the office, filed the papers as of the date of June 13, 1902. The action is in tort for trover and conversion, and the procedure as to the holding to bail and the issue of the writ is regulated by section 55 of the practice act (2 Gen. St. p. 2542). The filing of the affidavit and order are not made a condition precedent to the issue of the capias, as it is under section 58 of the act where the action is upon contract. It was held by the Supreme Court, in Wert v. Strouse, 38 N.J.Law, 184, upon a motion like this, where the action was tort, that "the affidavits need not be actually filed before the writ is issued and arrest made, in actions of tort. Aliter in actions on contract." This decision has not been reversed or disapproved in any later decision, and must govern in determining the point here involved. The decision in Hassler v. Stowe, 7 N.J.Law J. 204, is cited in favor of the application, but in that case the action was in assumpsit, and hence it is not in conflict with the case of Wert v. Strouse, supra.

Another ground advanced is that the affidavits do not disclose a cause of action. It is contended that, the action being in the form of trover and conversion, in order to recover the value of goods sold, the sale of which had been rescinded for fraud, there must be a demand made for the return of the goods before the conversion necessary to support the action can be shown. No such demand was made before the bringing of the action. It is conceded that, where the goods of another came lawfully into the possession of a defendant, there must be a demand and refusal to deliver before the action will lie. The goods purchased in this case consisted of diamonds of a value exceeding $50,000. The affidavits show that they were obtained by false pretenses, and the circumstances developed are such as to warrant the conclusion that the goods were bought with the preconceived intention not to pay for them. Where this is the situation, it is held that the possession gained in this way is tortious, and that the sale may be rescinded, and that an action of trover will lie. Ferguson v. Carrington, 9 Barn. & C. 59; Waters v. Van Winkle, 3 N.J.Law, 154; Thurston v. Blanchard, 22 Pick. 18, 33 Am. Dec. 700; Buffington v. Gerrish, 15 Mass. 156, 8 Am. Dec. 97; American Sugar Rcf. Co. v. Fancher, 145 N. Y. 552, 40 N. E. 206, 27 L. R. A. 757; Powell v. Powell, 71 N. Y. 71; Irving v. Motley, 7 Bing. 543. And it is also held— and, I think, rightly—that in such case a previous demand of the goods before action brought is unnecessary. Thurston v. Blanchard, supra; Powell v. Powell, supra.

It is further contended that, although this action is transitory, and may be brought in a different jurisdiction from that of the residence of the parties and the place of the transaction, yet that on grounds of public policy jurisdiction of the case should not be entertained. New York decisions have been cited in support of this assumption. But I think the decisions referred to have only related to actions between foreigners coming into this country, and for causes of action arising on the high seas or outside of our country. In such cases the courts there have, in their discretion, declined to entertain jurisdiction. A dictum in Burdick v. Freeman, 120 N. Y. 422, 24 N. E. 949, is in favor of the right to extend the exercise of this discretion to an action there between citizens of another state and for a cause of action not arising within its jurisdiction. The other New...