Summary
In Feighan v. Sobers & Son, 84 N.J.L. 575, 87 A. 636, 637, it was held that the meaning to be ascribed to "usual place of abode" is the place where the defendant is actually living at the time the service is made. This conclusion was affirmed by the Court of Errors and Appeals. 86 N.J.L. 356, 91 A. 1068. Where, then, was the usual place of abode of this alleged debtor?
Summary of this case from Augustus Co. v. ManzellaOpinion
06-25-1913
ATLANTIC CITY NAT. BANK v. THOMPSON et al.
John C. Slape, of Atlantic City, for complainant. Lee F. Washington and C. C. Babcock, both of Atlantic City, for defendants.
Suit by the Atlantic City National Bank against Mary D. Thompson and another. Order to show cause for injunction on bill of interpleader. Order to show cause discharged.
John C. Slape, of Atlantic City, for complainant.
Lee F. Washington and C. C. Babcock, both of Atlantic City, for defendants.
LEAMING, V. C. I think it clear that complainant is not entitled to enjoin the further prosecution of the suit at law by defendant Mary D. Thompson.
By the verified answer of that defendant it appears that she deposited the note with complainant bank for collection for her own use, and that the bank entered the note in her individual passbook for collection and credit to her account; that transaction created the relationship of bailor and bailee between her and the bank, and the bank is not, in consequence, now privileged to interplead her with one claiming the fund by a paramount title. The case of the First National Bank of Morristown v. Bininger, 26 N. J. Eq. 345, is conclusive to that effect. The case of Third National Bank of Boston v. Shillings, 132 Mass. 410, is to the same effect, and is practically identical with the present case.
The only instances in which bailees, agents, or tenants are permitted to interplead their bailors, principals, or landlords and a third person setting up an opposing claim to the thing, fund, or duty appears to be in cases in which the title of the opposing claimant is derivative under, and not antagonistic and paramount to that of the bailor, principal or landlord; that is, where the adverse claim originates from some act of the bailor, principal, or landlord done or suffered after the commencement of the bailment, agency, or tenancy, and causing a dispute as to which of the parties is entitled to the thing, fund, or duty. This is clearly set forth in Pomeroy's Equity Juris. § 1327, and in volume 1, § 54, of Equitable Remedies by Pomeroy, Jr. I am unable to adopt the view that a privity of contract can be found in the circumstances antecedent to the bailment as set forth in the bill.
I will advise an order discharging the order to show cause.