•W^' A A 9 r- THfc RNR rr: 2 7 -'3> 5 ARYFA 2 =i THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW "(^ .BRIDGMENTT^^ /^ A PRACTICAL ABRIDGMEN OP ^l ^ V AMEEICAN COMMON LAW CA"S"E«-- ARGUED AND DETERMINED m THE COURTS OF THEf SEVERAL STATES, AND THE UNITED STATES COURTS, FROM THE EARLIEST PERIOD TO THE^PRESENT TIME; ALPHABETICALLY ARRANGED ; WITH NOTES AND REFERENCES TO THE STATUTES OF EACH STATE AND ANALOGOUS ADJUDICATIONS. COMPRISING UNDER THE SEVERAL TITLES A PRACTICAL TREATISE ON. THE DIFFERENT BRANCHES OF THE COMr^ON LAW. BY J. D. WHEELER, ESQ. COUNSELLOR AT LAW. VOLUME II. N E W Y O R K : TREADWAY & ATWOOD. 1834. v.^ Entered according to the act of Congress, in the year one thousand eight hundred and thirty-four, by Treadway & Atwood, in the clerk's office of the district court of the Northern District of New-York. TABLE OF TITLES. Page. Attorjiey, 1 Attorney, Power of, 44 Attorney, Warrant of, ... 44 Attornment, 44 Auction , 44 Audita Querela, 44 Auterfois Acquit, 48 Auterfois Convict, 50 Bail, 51 Bailment, 118 Bankrupt, 153 Banks, 171 Bank Checks, 171 Bank Notes, 176 Bargain and Sale, 180 Baron and Feme, 180 Bastard, 180 Bill of Exceptions, 180 Page Bills and Notes, 180 Bond, 370 Book Accounts, 457 Bottomry Bonds, 472 Boundaries, 482 Breach of Promise of Mar- riage, 498 Bribery, 498 Burglary, 499 Capias ad Respondendum, 506 Capias ad Satisfaciendum, 513 Capture. And see tit. Prize, 519 Carriers, 524 Cartel, 564 Case, Action on. And see ante^ tit. Action, vol. 1. p. 181, 565 f\3i^ TABLE OF NAMES OF THE CASES ABRIDGED. Pago. Abat V. Rion 246. 251. 358 " V. Whitman 5J6 Abbee v. Goodwin 281 Ackley v. Chester 572 Ackley v. Kellogg 152. 541 Adam v. Hay 559 Adams v. Hemraenway 574 Adams v. Minton 76 " V. Pease 495 " V. Spear 391 " V. Wood 419 Addis V. Johnson 265. 289 Agan V. M'Manus 309 Agnew V. Bank of Gettys- burg 278 Ainslie v. Wilson 352 Ainsworth v. Peabody 100 Alcock V. Little 492 Aldrich v. Stuvvesant 569 Allan V. Gantsheau 251 Allen V. Hokins 356 " V. Rogers 471 " V. Sewal 147. 149 " V. White 64 Allendorf v. Stickle 455 Allison V. Rheam 513. 518 Almy V. Harris 582 Alton, town of v. Town of Gilmanton 4 Amblard v. Heard 158 Ames V. Withington 357. 358 Amos V. Johnson 397 Aymar v. Aster 520 *" V. Beers 232. 247 Anderson v. Longden 400 « V. Robson 271 " V. Van Allen 256 Andrus v. Beals 399 Anon. 2 Haywood, 280. 366 " 1 « 144. 428 Page. Anon. 4 Halstead, 25 74.107 " 2 Cowen, 589. 38 " 1 Wendell, 108. 32 " 4 Johnson, 191. 3 " 3 " 261. 3 Appleton V. Crowninshield 479 Argenbright v. Campbell 372 Armat v. Union Bank 177. 229 Armstrong v. Davis 83 *' V. Hussey 241 " V. United States 400 Arnold v. Bailey 451 " V. Crane 316. 350 " V. Lyman 432 " V. Munday 495 Arthur v. Antonio 64 Atkinson v. Corns, of Pick- away 10 Atkinson v. Scott 447 Aurora, the 473. 479 Austin V. Rodman 244 " V. Whitlock 373 Ashley v. Hill 472 Ash's admr. v. exr. of Brew- ton 368 Astrea, the 520 Ayers v. Harness 191 Ayers v. Kutchins 222 Backhouse v. Sneed 533 Bacon v. Sanfotd 57S Bacon v. Warner 27 Badgiey, ex parte 80.107 Badlam v. Tucker 129. 133, 134 Baich y. Hoff 469 Baid V. Mattox 440 Bailey v. Lewis 428 " V. Warden 69 Baird v, M'Dougal 204 " V. Rice 410 Yl NAMES OF CASES, Baker v. Arnold 347 '" V. Cook 26. 580 " V, Judges of Ulster C. P. 45 " V. Miller 133 " V* Montgomery 246 Baker v. Sanderson 486 " Wheaton 163 Ball V. Allen 189. 325 " V. Dennis 245 Ballou V. Hurlbut 514 " V. Talbot 205. 581 Bamwall v. Hussey 559 Bank of America v. War- den 245 " " V. Wood- worth 227 " Bangor v. Hook 361. 370 ** Berkshire V. Jones 331 " Chenango v. Hyde 212. 216 " Columbia v. Law- rence 232. 247. 291 " Columbia v. Ma- gruder 197. 278 " Cumberland V. Hall 229 " Georgetown v. Ma- gruder 292 *' Gloucester v. Wor- cestor 303 " Grafton v. Kent 348 " Kentucky v. Purs- ley . 345 " " V. San- ders 184. 185 " Limestone v. Pen- ick 228. 371 " Montgomery v. " Walker 356 *' Mount Pleasant V. Pollock 81 '* Portland v. Stubbs 55^ " New England v. Lewis 299 " North America v. Barriere 251 ^' North America v. M'Night 292. 296 Bank of North America v. Petit 245. 292 " North Hampton v. Pepoon 428 " Orange County v. Brown 145. 148. 153. 553 " Rochester y. Bow- en 340 " Rutland v. Buck 212. 216 " Salem v. Glouces- ter Bank 178 " South Carolina v. Humphreys 241 " Suffolk V. Lincoln Bank 179 " Troy V. Topping 321 " U. S. V. Dunn 354 " " V. Corcoran 291 " " V. Hatch 301 " " V. Jenkins 513 " " V. Magill 402. 451 '' V. Norwood 294 " " V. Smith 254. 283. 297. 330. 331 " " V. Weisiger 259 " Utica V. Mott 296 " " V. Sneeds 210 " " V. Smith 254.297 " Virginia v. Ward 230. 273 " Washington v. Trip- let 234. 235 Banorgee v. Hovey 404 Barber v. Brice 150. 532 " V. Prentis 216. 229 Barclay's ass. v, Carson 169 Barker v. Briggs 339 '' V. Havens 550. 551 " V. Parker 283 Barkley v. Milchin 364 " V. Prentis 347 Barnes v. Ball 343 " V. Billington 154 " V. Hurd 574 " V. Prentis 544 Barney v. Dewey 571 Barnwell v. Hussey 146. 545 NAMES OF CASES. VII Barnwell V. iMitchell 370 Barren v. Lithgou 588 Barret, the People v. 48 Barry v. Mandell 436 Barton v. Batker 299. 305 Bartlet & Ferguson v. Yeates 399 Bartlet v. Willis 388 Barlow v. Butler 461 " V. Read 461 Barret v. Grozier 572 Barstow v. Adams 156 Bassard v. Levering 309 Baxter v. Graves 346 Bay V. Frazer 183. 424 Bayon v. Prevott 126 Beals v. Celler 198 Bean v. Bean 569 Bean v. Parker 58. 60. 371 " V. Quimby 30 Beeker v. Simmons 64. 67 Bell V. Keely 465 " V. M'Levan 458 " V. Reed 530. 560 Benden v. Seymour 487 Bennet v. Frey 514 " V. Kennedy 390 Benton v. Piatt 578 Bernard v. Curtis 426 Berry ads. Ellis 67 " V. Robinson 258. 282. 293. 295 Besore v. Potter 382 Beverly v. Burk 131 Bigelow V. Bartlet 567 Bigelow V. Johnson 96 Bignell v. Forrest 96 Binder v. Frcmberger 448 Bird V. Carriat 158. 508 " V. Hempstead & Clark 159 " V. Reed 152 " V. Washburn 378 Bishop V. Dexter 266 Bissel V. Hall 64 " V. Kip 514 Blaine v. Ship Charles 477,478, 479 Blaireau, the 151 Blake v. Doherty 486 Blake v. Shaw 129 Blanchard v. Russel 64 Bland v. Norrah " 131 Blinn v. Campbell 574 Bliss V. Negus 221 " in the matter of 15 Blood V. Goodrich 404 Blue V. Stout 111 Boar V. Moore 488 Boardman v. Fowler 93. 108 " V. Keeler 459 " V. Reed 494 Bodlgy V. Taylor 486 Bogert V. Nevious 231 Boggs V. Teakle 98 Bolton V. Harford 233. 369 Bond V, Farnham 288 " V. Padelford 128 Bonsall v. Taylor 454 Bowers V.Dunn 459 " V. Hurd 215 " V. Jewel 230 Bowman v. Wood 138 Bowne v. Hallett 453 " V. Joy 47 Boutell V. Cowdin 215 Boyce v. Anderth 150 '"' & Henry v. Edwards 238 Boyd V Cleveland 283 Bracket v. Winslow 44. 46 Bradford v. Earl 80 " V. Hubbard 242 Bradhurst v. Colum. Ins. Co. 550 Bradley v. Amis 588 Bradley, ex parte 80. 107 Braraan v. Hess 211. 118 Banch v. Burnley 6 Bransard r. Dedowet 142 Branson v. Shinn 94 Brantwaith v. Halsey 455 Breed v. Hillhouse 209 Breedlove v. Johnson 374 Brent v. Davis 441. 471 Brent's exr. v. Bank of the Metropolis 234 Bret V. Van Norden 41 Brewton v. Cannon 417, 418, 419 Bridge v. Wyman 128 Briggs V. Rowe 76 Brinkerhoff v. Doreraus 380 Broaders v. Welsh 80 Broadwell v. Stiles 231 VUL NAMES OF CASES. Bronson v. Earl 508 Brookfield v. Jone& 56 Brooks V. Hunt 44 Brovvn v. Barry 329 Brent 456 Coit 236 Gumming 169 Dcnnison 142 Gay 487 Gilman 189. 325 Henman . ^ 463 « V. Hotchkis 127 " V. Jackson 314 " V. Mott 201. 263. 281 «' V. Smith 103 " V. Tabor 340 " V. Van Braan 329. 364 " V. Williamson 77 Eiovv!.'cl V. Manchester 126 Brownlow v. Forbes 104 Bruen v. Marquand 303 Brush V. Rees 259 Bryan v. Simonton 100 Bryant v. Ritterbush 286. 357. 360 Bryden v. Bryden '' V. Taylor Bucknor v. Finley " V. Smith Buddicum v. Kirk Buel V. Gordon BufTum V. Chadwick " V. Merry Bulkley v. Cotton Bullard v. Bel] 296 245 182 387 4. 32 163 327 140 65 265 " V. Nantucket Bank 510 Bull V. Pratt 582 Bun V. Rickey 213 Burdick v. Green 351 Burdict v. Murray 143 Burke v. Livington 224 " V. Trevit 151 Burnell v. Smith 201 Burr Levi, ex parte 43 Burroughs v. Lowder 388. 400 Burtus V. M^Carty 88 Sutler V. Bissel 100 ** V. Kenner 126 Butler V. Kent 572 Byrd y, Cocke 574 Caines v. Hunt 77 Cairnes v. Lord & Bleeker 58l Caldwell V. Cassidy 285. 330 " V. Lovett 25 Camden v. Edie 5 Cameron v.M'Farland 387 Caramer ads. Harrison 274 Campbell v. Grove 66 '^ V. Neely 580 " V. Morse 538 " V. Palmer 92 " V. Petting 234 Canizores v. The Santissi- ma 473 Canning v. Pinkham 226 Cannon v. Beggs 367 Carleton v. Witcher 357 Carley v. Vance 283. 331 Carlton v. La wry 458 Carmer v. Weeks 85 Carneal's heirs v. Day 381. 385 Carpenter v. Butterfield 508 CarrifF v. Myers 16 Carrol v. Waters 538 Carter v. Carter 380. 454 Casborus, The People v. 48 Case V. Barry 460 " V. Potter 466 « V. Mark 571. 574 Casin v. Tristam Shandy 520 Castro V. Bennet 28 Gate V. Theyer 489 Cathcart y. Cannon 96 Catton V. Beasley 448 Chace v. Hinman 433 Champion v. Noyes 80 Champion V. Pierce 511 Chandler v. Herrick 207 " V. Sterling 285 Chapman v. Durant 316 " V. Lipscomb 297 " V. Steinraetz 362 Charleston Steam Boat v. Bason 547 Chazournes v. Edwards 204 Cheetham v. Lewis 508 Cherriot v. Tousat 520 Chesnut Hill Turnpike Co. V. Rutter 578 Chickering v. Fowler 149 Church V. Barlow 217 NAMES OF CASES. IX Cherry v. Slnde Churchill v. Perkins " V. Suter 286. 355 " V. Warren City Bank v. Cutter Clapp V. Cofran 388. 390. " V. Day Clark V, Bull Clark V. Bush 411, " V. Fitch " y. Foot " y. Ray " y. Sanderson " y. Stockhouse " V. Young Clark's exr. y. Hopkins Clarmont v. Carlton Clawson y. Guston Claj' y. Oakley Clen-denen y. Allen Clough y. Tenny Clute V. Wiggins Cobb V. Darrow " V. Com'th of Ky. Cobby y. Sampson Cock V. Fellows Codington y. Bay 212. Cohen y. Hume Colburn y. Downes 61. Cole V. Cushing " y. Fisher Coleman y. Wire Collins V. Cook 84. Colt V. M'Mechin 149. 531. " y. Noble Cromilines ads. Belden Commis. of Brown & Co. v Burr Commiss y. The People Com'th y. Baldwin " y. Bnckett 108, " y. Brown " y. Carey " y. CarJl " y. Chayelier 502. " V. Cunningham " y. Godard " y. Hatch " y. Hays " y. Hearsay Vol. II. 485 Com'th y. Monagle 505 387 " y. Newel 502 354. " y. Pennock 506 359 " y. Stewart 501 517 " V. The Judges of 323 Cumberland Co. 1 , 400 Congdon y. Cooper 128 327 Conn y. Gano 285 471 Connel v. Loyett 173 . 453 Conroy y. Warren 183. 232 576 Cook y. Beal's exrs. 105 567 " y. Essex Fire & Ma- 377 rine Ins. Co. 519 449 " y. Gouidin 534 175 '• y. Saterlee 191 312 Cooke y. Graham 397.437 418 Cooley y. Lawrence 251 498 " y. Rose 367 252 Coolidge y. Carey 107 309 " y. Payson 288. 240 508 Coolridge y. Ruggles 188 576 Cooper y. Spicer 75, 76 579 Cope y. Gordora 149 71 Coppv. M'Dugal 307 375 Corporation of Washington 580 y. Young 429. 441 265 Cortelyou y. Lansing 134 340 Coster v. Watson 19. 69 152 Cotter y. Cummings 574 374 Cottle y. Payne 418. 419 317 Couray y. Warren 171 574 Coward v. Bohun. 57 359 Cowles v. Johnson 260 106 Cox y. Hill 19 535 '' y. Nichols 4 297 Coxe y. Hankinson 311 73 " y. State Bank, Tren- ton 176 582 Coyington y. Exrs. ofLyde 495 589 562 Coyle's exr. y. Satterwaite's 109 admr. 185, 341 563 Craghill y. Page 440 180 Grain y. Calwell 309 505 Cramer y. Higginson 403 505 Crammer y. Van Alstyn 514 49 Crandall v. Bradley 351 50 Crane, den. d. v. Hamilton 113 430 Crayen v. Shaird 466 501 Crawford y. Millsbaugh 320 373 Crawford V. M'Donald 426 B NAMES OF CASES. Crawford v. The Wm. Penn 476. 479. 5G3. 481 Critchfield v. Porter 10 Crittenden v. Hurlburt 353 Cro^: V. Arthur 356 Cross V, Guthery 574 Grossen v. Hutchinson _ 245 GroughtoK V. Duval 410 Cruger v. Armstronsr 171. 174, 175. 183. 232. 351 Culpepper Ag. &, Man. So. v. Digges 78 Cumtnirig v. Lynn 423 Guuningham, Comt'h of Mass. V. 49 '" V. Henderson 424 Gushing v. Gore 209 Cutler V. Dickinson 445 Cutiing V. Shippen 356 Cutis V. U. S. 373 Curtis V. Jackson 567 Dacosta v. Guiellu 195 Dale v. Roosevelt 446 Davidson v. Bridgport 260 Davis, v. Gilbert 88 Davis V. Gillet 65 Davis V. Hall 387 Davis V. Mitchell 54 Darmenon, in the matter of 43 Darnell v. Harison 24 Davenport v. Barnes 430 Dearborn v. Cross 411 Dearborn v. Dearborn 36 Dean v. Hewit 310 Deas V. Darby 467 Debresse v. Napier 241 Debuys v. Moliere 353 Decker, exparie 408 Deerlng v. Renden 356 Deering v. Sautel 355 Dehart v. Wilson 404 Defonclear v. Shottenkirk 131 Deland v. Amesbury Manuf. Co. 354 Delile v. Preistman .136 Dennis v. Cummings 450 Dennisson v. Bacon 218 Denniston v. Cook 213 Denton v. Noyes 9 Depsysier v. Columbia Ins. Co. 146. 531 Dermeston v. Bacon 21 1 Detoleman v. Fuller 139 Dickinson v. Gould 463 Dicki V. Cash 327 Disbrough v. Van Ness 291. 328 Dix V. Cobb 470 Dixon V. Vanegara 98 Dobbv. Halsey 204. 20G Dodge V. Bank of Ky. 291. 344 " V. Hubbel 46 " V, Smith 489 Doe V. Payne & Sawyer 491 Doe V. Stokes 3^56 Dole V. Walsey 340 " V. Weeks 328 Donaldson v. Means 306. 307. 309 Doolittle V. Blake 494 Dorr V. Munsell 386 Dorrance v. Simmons 567 Dougal V. Cowles 203 Dougherty v. Dorsey 583 Douglass V. Clark 442 Downer v. Lothrop 470 Downing v. Backenstors 252 Drummond v. Crutcher 440 Dubois T. Roosa . 24 Duckwell V. Weaver 273 Ducoign V. Schreppel 465 Dumford v. Patterson 274 Dunham v. Macomber 99 Dunklee v. Locke 26 Dunlap V. Ball 418. 419 Dunlap V. Munroe 152 Dunn V. Snell 264, 420 Dunn V. Stone- 567 Durye v. Dennison 305. 307 Dwight V. Brewster 145. 147 " V. Scovel 292 Easby v. Eakin 459 Easton v. W^orthington 262 Eaton V. Lynde 144 Eaton V. Oriley 584 Eccles V. Ballard 251. 259 Eddy V. Cockran 46 Edwards v. Gunn 62. 84. 106 " V. Moses 244 " V. Morris 179 Eichelberger v. Finley 171 NAMES OF CASES. XI Eifert v. Descourdes, & Co. 293 Elting V. Brinkerhoof 174 Elliot V. Rosscl 146. 147 Ellis V, Wheeler 185 Elms V. Chevis 467 Embree v. Lamb 512 Emery v. Harvey 150 Emerson v. Brigham 576 " V. Crocker 219 Emmerson v. Fisk 126 Estell V. Vanderveer 291. 328 Estill's heirs v. Hoy's exrs. 578 Eustace v. Gaskln 419 Everingham v. Laughton 468 Fairlee v. Lawson 453. 455 Falconer v. Garrison 557 Fales V. Thompson 159 Farland v. Gage 461 Farnsworth v. Groot 553 Farnsworth v. Sweet 325 Farnum v. Fowle 245. 288 Fay V. Goulding 338 *' V. Richardson 376 " V. Slyfield 459 Fellows V. Carpenter 197 Fenn v. Smith 74 Fenlon v. White . 200 Fernald v. Ladd 23 Fernandes v. Lewis 232, 233 Ferris v. Fhelps 77 " V. Purdy 431 " V. Saxton 252 Field V. Nickerson 247. 349 Filkins v. Brockaway 508 Finch V. Cox 225 Fin ley v. Linn 412 Fisher v. Bradford 324 Fitch V. Lothrop 438 ■ " V. Lcveland 62. 106 Fisher v. Brown 566 " V. Willard 16 Fitzgerald v. Hart 444 " V. Caldwell 455 Flack V. Eager 76. 78 Flagg V. Upham 205 Flanders v. Etna Ins. Co. 508 Flemming v. Gilbert 392. 443 Foden v. Sharp 280. 283. 331. 366 Folbz V. May 224 Folly v. Vantuyl 377 Folsom T. Chesley 517 Folwell V, Beaver 423 Foote V. Sabin 204. 206. 340 Forbes v. Hannah 473 " V, Perries 21 Ford V. Stewart 26 Foster V. Essex Bank 121 " V. Shattuck 193 " V. Sinclair 464. 468 Fowler v. Smith "508 Franklin In5. Co. v. Jen- kins 579 " V. Thurber 90 " V. Vanderpool 171 Frazier v. Drayton 465 Freeman v. Adams 429 " v. Anderson 438 " v. Boynton 271. 286 French v. Bank of Columbia208 " V. Oneil 580 Frey v. Parker 320 Frisbee v Hoftnagle 211 Frothingham \. Price 245 Fulgham v. Lightfoot *■ 580 Fuller V. Holden 572. 585 Fulton, ex parte 374 FuriTian v. Harman 309 " v. Haskins 232. 276 Gaillard v. Smart 5 Gallagher v. Kenedy 101 Gallagher's exr. v. Roberes 314 Galloway v. Legan 393 Gates V. Brattle 420 " V. Winslow 215 Gardner v Barnham 88 Garland v. Richeson 422 Garlick v. James 138 Garreisee v. Van Ness 430 Garrigues v. Cox 146. 531 Gathers v. Langdon 515 Gay V. Rogers 14. 40 Geddes v. Hawk 380 Gentry v. Barnet 445 Gerrish v. Edson 57. 587 Gibbs V. Can no 288 " V. Chase 132 Gibson V. Phila. Ins. Co. 482 Gibson v. Gibson 207 ?ui NAMES OF CASES. Gibbons V. Larcum 514 Gilbert v. Nantucket Bank 328 " V. Williams 33 Giles V. Barremore 419 Gilly V. Lee 399 Gilmore v. Pope 3l8 Gist V. Lybrancl 287 Given v, Driggs 388 Gleason v. Clark 34 Glenn v. Smith 315 Godfrey v. Vancott 455 Goodal V. Cincinnati 578 Goodal V. Stuart 424 Goodman v. Eastman & Harford 226 Goodlea v. Taylor 190 Goodrich v. Gordon 240 Goodrich, the people ex rel. V. Chatauque C. P. 49. 376 Goodrich v. Walker 377 Goodwin v. Jones 324 " V. Smith 85 Gordon v. Arnold" 465 " V. Brown 440, 441 " V. Lepman 97 " V. Little 152. 549 " V. Valentine 507 Gorham v. Gale 8 Grafton Bank v. Flanders 199 Graham v. Goudy 423 Grant V. Elliot 319 '" V. Hazeltine 26 Gratz V. Stump 427 Graves ads. Belser 517 " V. Dash 363 " V. Fisher 498 " Merry 241 Gray v. Portland Bank 578 Grays v. Hines 78 Greeley v- Thurston 323. 509 " v. United States 391 Green v. Sarmiento 167 *' v. Ferguson 5S6 Greenleaf v. Cook 211. 215 " V. Kellogg 367 Greenwood v. Colcock 389 Grey v. Hankinson -^85 " v. W^ood 194. 229 " V. Young - 112 Grimshaw v. ]3ender 361. 364 Grisvvold v. Sedgwick 509 Grotius, the 519 Grubbs v. Rice 482 Grubb V. Willis 385 Guild V. Edger 287 Gurley v. Gettysburg 292 Hacking v. Howard 436 Hackley v. Patrick 207 Haddon v. Chambers 163 Hale V. Russ 58 Hall V. Carter v 400 Hall V. Cushing 160 " V. Huse 348 " V. Young 111 Hallenback v. Fish 127. 144 Halliday v. Martinet 345 Halsey v. Dehart 253 " V. Salmon 291.328 " V. W^hitney 396 Hamilton v. Garwood 493 " v. Cutts 448 " v. Dunklee 85 Hammond v. M'Clauhon 496 Hand v. Fielding 211 Handley v. Anthony 496,497 Hardy v. Metzgar 562 Harlan v. Reid 215 Harrinton v. Ward 580 Harring v. Syles 534 Harris v. Barker 460 " V. Cfap 452. 454 " V. Clark 430 " V. Johnson 312 Harrison v. Close 320 " v. Field 382. 401 " T. Sterry 156. 167 " v. Tiermans 59 Hart V. Talmao-e 568, 569 Ten 136 Hartford Bank v. Barry 264.355 " " V. Stedman & Gordon 297 Hartshorne v. Johnson 557 Haskell v. Hart 418 " V. Whitney 5 Hastings v. W^iswall 367 Haswell v. Bate & Lansing 65 Hatch v. Dwieht 567 " V. Green 349 Hatfield v. Kenedy 381. 432 Hatton V. Spever 162 NAMES OF CASES. xiii Hawkins v. D. & 0. Steam- Howe v. Ransom 84. 106 boat Co. 571 Howell y. Denniston 69 Haughton & Slade v. Ros- Houton v. Page 354 coe 491 Hoyt v. Peterson 515 Hautz V. Rough 449 Hubbard v. Prather 423 Haxton v. Bishop 281 Hubbard v. Shaler 587 Hayden v. Shed 574 Huffman v. Com'th Pa. 50 Hays V. Bowman 495. 497 Hughes v. Smith 396 Hayes y. Curry 13 Hughs v. Heister 567. 589 Hemmenway v. Stone 187. 257 " v. Hollingworth 93 Hench V. Todhunter 21 Huguet v. Hallet 67.68 Henderson v. Lynd 86 Hulby v. Brown 847 Hendricks v. Franklin 361 Hunt v. Adams 188. 256 " V. Judah 164. 276 " v. Morris 535 " V. Robinson 137 " v. Rodsmanier 382 Henry v. Brown 424 " v. the U. S. 403 " V. Edson 572 Huntington v. Rumrill 34 " V. Jones 285 " v, Shultz 511 Herlock v. Riser 465 Hurd v. Flemming 458 Hernandez V. Montgomery 428 " v. West 133 Hernen v. ]Munroe 152 Huiiay y. Hurray 475. 477 Herrick y. Carman 216. 252 481 ' Heywood y. Hildreth 580 Hussey y. Freeman 296 '" y. Perrin 229 " Juet 201 Higgs V. Smith 445 Huston v, Mitchell 18 Hightour y. Murray 60 Hutches y. Peck 575 Hildreth y. Haryey 25 Hutchins y. EdsoQ 507 Hill V, Bannister & Butler 193 Hyer y. Denning 20 " y. Buckminster 215 H; ) mes ■< r.Gault 568 " y. Ely 252 " y. Martin 248 In habitants of Saco y. , Os- " V. Varrell 332 good 435 Hitchcock V. Smith 460 In stone y. Williamson 422 Hodges y. Hodges 354 Ireland y. Kip 295 Hodson V. Wilkins 587 Irwin y, , Sheffield 568 Hoe y. Oxley 199 Hoffman y. Smith 245. 278 Ja ckson y. Adams 581 Hogan V. Cyler 274 (( y. Camp 488. 492 Hoomes y. Smack 387 (( y. Clark 490 Holdship y. Jaudou 400 cc y. Dennis 490 Holker v. Parker 5 (c y. Frost 485 Holman y. Gilliman 380 u y. Halsted 495 Holme V. Richard 497 a y. Hoage 512 Holmes v. Crane 134 a y. lyes 487 Homer y. Wallace 228 u y. Lunt 490 Hornkeith y. Barr 576 (( y. M'Call 494 Hooker y. Cummings 495 (C y. Ogden 488 Hopkins v. Leiswell 306. 307 u V. Post 442 Hosack y. Weayer 562 u y. Richards 309 Hotchkiss y. Le Roy 22 (( ex dem Smith y. How V. Bass 487 Stewart 20 XIV NAMES OF CASES Jackson v. Walsh 469 " V. Wendell 485 " V. Wilkinson 485 " V. Widger 488 James v. Badg-er 304 " admr. v. Neals, adm.141 Janson v. Hilton 436 January v. Cartright 388 Jaques v. Marquand 241 Jarvis v. Rodgers 134. 138. 202 Jenkins v. Waldrow 577 Jenney v. Rodman 128 Jennings, ex jiartc 496. 498 " V. Ins. Co. 473 " V. Jennings 445 Jerome v. Whitney 190 Jerusalem, the 478 Jewett V. Torry 128. 129 Johnson t. Bank of Ken- tucky 334 V. Bloodgood 256 V. Brandt 13 V. King 224 y. Martinus 252 V. Pennell's Heirs 482. 497 " V. Weed 313, 314 Joliffe V. Higgins 184 " V. Jenner 572 Jones V. Brick 466 " V. Cassell 218.221 .223 256 " V. Coolridge 359 " V. Cooper 392 " V. Dunning 87 " V. Emerson 90. 161 " V. Fales 187. 289 " V. Kelly 54 " V. Le Tombe 205 " V. Turner 447 " V. Witten 264 Joyes V. Cossart 154 Judah V. Harris 190 Juliand v. Burgott 437. 439 Juniata Bank v. Hale 288 Kain v. Ostrander 581 Karthaus v. Ordinary 339 Keating v. Price 392 Keith V. Jones 190 Kellog V. Curtis 214 Kellog V. Gilbert 7 " V. Munroe 102 Kelly V. Holdship 169 Kemp V. Coughtry 149. 543 Kenedy v. Fairman *467 ^'' V. Mott 304 Kenner v. Creditors 242 " V. Hord 436 Kent V. Walton 322 Kenworthy v. Hopkins 362 Kerwin, exparte 408 Keplinger v. Griffith 341 Key V. Vattier 17 Kidzie v. Sackrider 572 Kimball v. Blank 538 Kimmel v. Kimmel 19 Kincaird v. Blythe 482 Kinder v. Shaw 138 King V. Goodwin 515 " V. King 495. 595 " V. Lenox 146 King V, Tarlton 565 Kingsbury v. Dickerson 118 Kingston v. Wharton 165 Kip y. Brigham 436. 448 Kir by y. Cogswell 325 Kirkpatrick v. Howell 289 Kitchell y. Vander 562 Knapp y. Lee 202. 349 " V. Sprague 128 Koning y. Bayard 249 Krumbrahar y. Ludding 347 Lacroix y. Coquet 384 Lacy y. Garard 384 Ladd V. Kenney 306 Ladd y. North 127 Laidler y. The State 441 Lane: v. Brainford 368 Lafarge v. Morgan 125 Laflin y. Fowler 85 Lamb v. Hart 464 Lambert y. Moore 53 Lane v. De Peyster 449 " y. Smith" 64. 65 Lancaster Bank v. White- hall 346 Langdon y. Potter 36 Lanuse y. Barker 198 " y. Massirott 346 Lansing y. Gaine 204 " V. Lansing 213. 256 NAJVIES OF CASES XV Lenox v. '' V " V V (( a Laporte v. Landry Large v. Penn Lattimer v. Horsen Laverty v. Burr Lavinia Ship v. Baiclay Lawrence v. Lippencott Lazarus v. Aubin Leavenworth v. Phelps Leffingwell v. White Leftwich v. Berkley Leiber v. Goodrich Leigh V. Horsuai Lecky v. M'Dermott Legaux v. Feasor Legget V. Bank of Pennsyl vania Legrand v. Baker Leland v. Stone Cook U. S. Ins. Co. Leveret Prout Roberts Leonard v. Mason " V. Morill " V. Caskin Lent V. Paddleford Leroy v. Crowningshield " v. Johnson Levy V. Bank of U " V. Hampton Lester v. Zachary Lewis V. Gamage " V. Lozee Lilley v. Millen Little V. Cook " V. Newburgh Bunk " V. Obiien 223. Livermore v. Badgley Livingston v. Cornell " V. Hastie 204. 206 Livingston V. IM'Imlay . 137 Lloyd V. Martin Lloyd V. Moody Lockwood V. Bull 140 " V. Winning Lockland v. Roberts Logan V. Ross Longv Billings 57.61 " V. Colburn 199. 205. 881 Lonsdale v. Brown 182 309 484 411 206. 340 474 113 295 469 282 425 193 269 562 574 198 415 225 249 332 250 251 284 183 484 56 214 168 241 242 455 384 8 469 172 47 47 324 137 19 S. 418. 402 19 556 166 445 427 Loomis V. Pulver 222. 349 Losee v. Dunkin 247. 276 Love V. Palmer 225 Lovejoy v. Webber 16 Lovell V. Evertson 252 " V. Wartenburgh 284 Lovet V. Cutler 159 Love V. Bucknor 387 Lovett V. Adams 379. 449 Ludden v. Leavitt 127. 141 Ludlow V. Simroud 368 Ludlow V. Van Camp 435 Lummus v. Fairfield 161 Luntv. Holland 497,498 Lyle V. Baker 137 " V. Dunkin 247. 276 Lyman v, Lyman 128" Lynch v. Com'th Penn. 12 " V. Petrie 464 Lynde v. Judd 30 M'Allister v. Hammond 573. 574 M'Bride v. Hogan 404 M'Bride v. Watts 464 M'Calep V. Maxwell 95 M'Call v. Turner 455 M'Causland v. Walker 91 M'Clure v. Hommond 152. 530 M'Clures v. Bowers 103 M'Comb.v. D wight 267 M'Conkey v. Glenn 507 M'Cormick v. Trotter 187 M'Coy's Lessee v. Gallway 483. 494 M'Cullock V. Allen 497 M'Cullough V. Guefner • 9 M'Donald v. Magruder 263 M'Dougal V. Wood 383 M'Even v. Mason 240 M'P>rran v. Powers 356 M'Gowen v. Chapen 571 M'lntire v. Fink's heirs 372 M'lvers v. Walker 483 M'Kenney v. Crawford 293 M'Kenzie v. Rea 395 M'Kinster v. Bank of Utica 327 M'Lean v. Whiting 416 M'Lemore v. Powell 403 M'Mechin v. Mayor of Baltimore 441 XVI NAMES OF CASES. M'Menomy & Townsend v. Ferris 166 M'Millan v. Eastman 572 M'Millan v. M'Neil 168 M'MuUen & Rudy v. Wen- ner 425 M'Neil V. Coleman 562 M'Neil V. Massey 483 M'Night y. Clark 392. 450 M'Roe y. Matton 64 M'Williaras v. Smith 424 Mackay v. Bloodgood 372 Mackie's exr. v. Davis 322 424 Mack V. Spencer 335 Magruder v. Bank of Wash- ington 287 " y. Bank of George- town 292 Mahurin v. Bracket 82 Maisonaire v. Keating 198 Makepeace v. Bancroft 484 Mallory v. Kir wan 245. 292 Malpica v. :^.I'Known 148 Man V. Pearson 488 Man V. Swan 347. 359 Maneely y. M'Gee 316 Manhattan Co. Ledyard 336 Manning v. Wheatland 356 Marks y. Barber 156. 170 Marvin v. Wilkin s . 45 Marr y. Plumer 324 Marrison v. Keen 497 Marsh v. Gold 6 " v. Blyth 535 Marshal v. Bryant 137 " . y. Gouglar 409 " V. Niles 487 Martin v. Ashcraft 516 " y. Bank of U. S. 178 " y. Hanks 26 " y. Mayo 200 " y. Salem Ins.. Co. 146. 531 Martindale v. Follet 230 Martson v. Hobbs 439 " v. Seabury 435 Marvin v. M'Cullum 216 Mary, the sloop 474. 477, 478. 481 Mason v. Franklin 246. 249 " v. Haile 413 Mason v. Waite 561 Massie v. Watts 493 Masterton v. Benjamin 67 Matson v. Hord 486 Matthews v. Hall 175. 265 Mauran v. Lamb 175. 183. 232. 261- Maxim v. Moore 165 May V. Brownwell 458 " V. Coffin 245 Mayor v. Falkrod 4 Mead y. Small 287. 309 Mease v. Stevens 417 Mechanics' Bank y. Haz- ard 92. 111. 349 Mechanics' Bank v. Schy- ler 262 Meeker v. Jackson 270. 271 Mehelm v. Barnet 252 Mercer v. Wamley 576 Meredith v. Hinsdale 333 Merit v. Clauson 267 Merrill v. Merrill 362- Merrimack Bank v. Parker 311 Mershon v. Withers 184, 185 Meizlev, ex paj-te ^ 67 Miles y. Johnson 539 " v. Ohara 350 Milla^ndon v. Amous 303 Miller v. French 458 " v. Grosvenor 472 " v. Hackley 249. 295 305. 307 " y Hellen 284 " y. Miller 517 " v. Salisbury 139, 140 " V. Stewart 396. 405 Mills V. Bank of U. S 234.294 " V. Johnson 152 " y. St. Johns 459 Minor v. Mechanics' Bank of Alexandria 394. 425 Mitchel V. Culver 262 " v. Gibbs 448 " y. Parkam 192 " V. Ringold 228 Montgomery v. Scanland 511 Monell V. Colden 568 Monroe v. Maples 575. 583 Montville v. Haughton 374 Mores v. Cornham 361 NAMES OF CASES. xvu Taylor 388, Morgan v. Furst " V. Livingston Moro^an v. Reintal Morns v. Edwards Morris v. Farin " V. Geiger Morrison v. Keen " 's exr. V Morse v. Hodson Morton v. Hualt Moser v. Libenguth Moses y. Norris 150. Mosher v. Allen 262, 263. Moss V. Riddle Moulton V. Hubbard Mount V. Wait Mower v. Inhabitants of Lueister Moxon V. The Fanny Munn V. Com. Company Munnikuyson v. Dorsett Munroe v. Easton Murden v. Purman Murphy v. Staton 152. Murray v. Burling Murray v. Judah 173. " V. Marsh " V. Murray " V. Staton " & Co. V. Carret Murrell v. Johnson Myers v. Dixon *' V. Palmer 447 497 369 177 365 72 497 199 389 56 379 152 324 378 40 213 579 520 223. 428 40 299 79 560 132 183 168 158 146 270 434 429 347 Neal's exr. v. Fishers' adm. 335 Nelms & M'Cullock v, Pugh 155 Negus, in the matter of 442 N€wall V. Hoadley 62 Newcomb v. Wing 438 Newton v. Anson 144, 145 Newton v. Prior 492 New Castle, Inhabitants of V. Bellard 15 Neyfong v. Wells 422 Nichols V. Davis 185 " V. Goldsmith 345 " V. Ingersoll 108 Nichols V. Roland 126 " V. Sutphen 71 Nicholas v. Webb 346 Nicholson v. Withers 468 Nightingale v. Wittington 267 Niven, the People v. 42 Noble V. Bank of Kentucky 291 Nones v. Gelband 78 Norris r. Badger & Caldw^ell 268 North Brunswick v.Booraem22 Norton v. " V. V. Nugent V. Nye V. Smith Barnum Lewis Rose Dehome Mazange 55 275 387 369 227 584. 586 O'Callaglian v. Sawyer 256. 286. 349 Odiorne v. Marcy 138 " V. Maxey 199 Ogden V. Conley 332 " ads. Hughes 15 " & Thomas V. Jacksonl66 " V. Miller 470 Ogisr V. Higgins 99 .Olcott V. Lilly 97, 98, 99 Oliphant v. Taggart 449 Oliver v. Munday 341 '^ v. Smith & Paine 157 Oneale v. Long 408 Ordinary of Charleston v. Cobbet & Lightfoot 417 Ordinary of Orangeburgh ' v. Phillpott 439 Orser v. Storms 132 Osgood V. Bradley 577 Ostrander v. Browm 149. 541 Packard v. Getraan 127. 148. 540. 556, 557. 579 Packet ship 475. 481 V. Bank of Alexandria 351 Palmer v. Allen 512 Palmer's Ass. v. Blight's Ass. 269 Palmer v. Dubois 418 " v. Green 469 Page's adrar Vol II. C XVUI NAMES OF CASES Palmer v. M'Glnnis CI Paine v. M'Intier 452 Panfon v. Holland 566 Pardee v. Reid 7^ Parker v. Bid well JOS " V. Carter 31 " V. Chajidler 96 " V. Elliot 576 " V. Grayson 512 " V. Hanson 260. 347 " y. Kennedy 423 " V. Lovejoy 359 " V. Root' 24 " V. 'J'oirilinson 1C3 " V. U. S. 3i7 Parks V. Duke 368 Parsons V. Gaylord 211 " V. Mills 569 " V. Parsons 334 " V. The Gloucester - Bank 303 Patapsco Ins. Co. v. Smith 316 Patton V. State Bank 178. 229 Pastonius v. Fisher 588 Pawling V Speed 422 Paul V. Purall 78 Payne v. Eden 221. 223. 261 " V. Ellzey 453. " V. Trezvant 224 Payson v. Payson 89. 160 Peabody v. Denton 271 " " V. Peters 202 Peace v. Person 103 Pearsall v. Lawrence 81 Pease v. Morgan 333. 335 Peck V. Cochran 235 Pell V. Griffg 94 Pelzer v. Cranston 467 Pendleton v. Bank of Ken- tucky 390. 413. 448 Pennsylvania v. Huffman 50 Pennyman v. barrymore 378. 395 Penrice v. Crothwarte 54 People V. Finch 186 People V. Frazier 506 " V. Jansen 416 " V. Mills 504 '* V. Parker 503 " V. Robertson 502 " V. Sherman 563 People V. Wood 504 Perkins v. Gilman 207 " V. Ramsay 492 Perley v. Foster 127 Pernam v. Weed 487 Petrie v. Wood worth 333 Pepoon ads Stagg 191 Peyton v. Hallet 241 Phelps V. Bronson 68 Phelps V. Johnson 411 Phelp? V. Riley 334 Philips V. Bridge 16. 128 " V. Earle 148 Pierce v. Crafts 316, 317. 350, 351 Pierson v. Hooker 206. 282. 293. 305. 307. Pinder v. Morris 25 Pinkerton v. Bailey 310 Pike V. Emerson 5 Pintard v. Taskington 272 Pitot V. Faurie 369 Pixley V. Butts 16 Pixley V. V7inchell 509 Planter's Bank v. Sellman 300 Piatt V. Hibbard 141, 142. 147. 530 Plate V. M'Clure 208 Pleasant v. Pemberton 356 Plumer v. Brewster 70 " V. Smith 223 Pnindexter v. Waddy 204 Pollock V. Bank of Mount Pleasant 81 Pon's exr. v. Kelly 346 Poole V. Tolleson 293 Potter T. Titcomb 420 Powell V Clark 488 " V. Waters 218. 223.360 Power V. Kent 3 Post V. Riley 92 Prentice v Philips 458 Prescott V. Hall 264. 420 " V. Parker 455 " V. Pettee 80 Preston v. Bowman 492 Prest V. Vanarsdalen 310 Price V. Young 284. 290 Prince v. Smith 460. 466 " V. Sweet 470 Prior V. Jacocks 286 Pritchard v. M'Owen 464 NAMES OF CASES. XIX Proctor V. Moore 164 Punderson v. Shaw 463 Putnam v. Sullivan 28u Quatennanus ads. Hawkins 86 Quick V. i\lerrill 73 Quinton v. Courtney 144 Raborgv. Bankof Columbia278 " V. Peyton 3J3 Racker v. Cunningham 475 Ralsion V. Love 60 Ramsav ads. Gevais 433 Ranlett v. Warren 84. 106 Ratcliff V. Dewit 471 " V. Vance 133 Rathbone v. Blackford 155 " V. Warren 92 Raymond v. Merchant 112 Read v. Barlow 461 " V. Comm. Ins. Co. 476 " V. Drake 372 " V. Wilkinson 328 " 's admr. v. Adams 329 Ream v. Rank 5T6 Reed V. Com'th of Penn. 288 Reed V. Pruym & Statts 225 Reedy v. Seixas 294 Regan v. Kitchen 394 Rees V. Conococheague Bank 259 Rennerv. Bank of Columbia 354 Reynolds v. Buford 248 '" V. Corp & Doug lass 518 " V. Tappen 146 Rhodes v. Vaughan 375 Ribble v. Jefferson 291. 328 Rice V. Carnes 65. 87 " V. Stearns 260. 341 . " V. Taylor 520 Richard v. Maryland Ins. Ins. Co. 519 Richards v Gilbert 527. 528 Richards v Howard 466 Richardson v. Backus 113 Co. 160 Richardson v. Fire & Marine Riddle v. Proprietors of Locks & Canals 578 Riggs V. Lindsay 248 Riker v. Corby ' 341 Ringold V. Tyson 358 Ritchter v. Selin 194 Rix V. Johnson 492 Roberts v. Cannington 382 " V Turnerl42. 147. 530 Robertson v. Ames 243. 247 " V. Mills 217 " V. Nott 198 " V. Vogle 292. 296 Robeson v. Thompson 95 Robeson v. Whitesides 450 Robinson v. Smith 340 Rockfeller v. Donally 403. 434 Rocigers v. Brewster 572 Rogers v. Chapman 514 " V. Lee 100 " V Moor 463 Roll V. Raguet 220 Rose V. Himely 520 Rover, the 521 Rowland v. Stevenson 90 Rowley v. Ball 271 " v. Stodard 508 Rugely V. Davidson 225 Ruggles v. Patten 287 Ruhie V. Moore 266 Rurarill v. Huntington 27 Rumsey v. Lovell 568 Runyan v. Nichols 34, 35 Russell V. iJall 219 " executrix v. Swan 202. 324 " V. Whipple 186. 337 Rust V Law 570 Rutgers V. Lucet 129 Rutherford V. M'Gowen 534.569 Ryan v. B/aJley 95 Sackrider v. Beers 567 Sally, the 520 Sandford v. Dlllaway 299 " V. Mickles 207 Sanford v. Sanford 430 Sanger v. Stimpson 289 Sargeantv. Pettibone 459. 470 Sat«;erlee v. Grant 145 Satterlee v. Groat 525 Saul v. Ailier 56 Saunders v. Taylor 436 Saunderson v. Larabeiton 559 Savage v. Davis 321 XX NAMES OF CASES. Savings' Bank v. Bates Saxton V. Johnson 333.335 Sayers v. Inhab. of Spring- field 460. Sayre, ex parte Scarborough v. Harris Schemerhorn v. Loines 313. " V. Pelham Schimmelpennichv. Bayard Schmidt v. Blood Schoonmaker v. Dewit " V. Rosa Scott V. Conover " V. M'Lellen " V. Van Alstyne Seagrove v. Redman Seaman v. Drake Seargent V. Blunt " V. Southgate 229. Sebree v. Dorr Secor V. Babcock Seigfried V. Levan 231. Sewal V. Allen Seymour v. Brown V. Van Slyck 252. Shamburg v. Commagere Shapley v. Bellows Shaver v. White Shed V. Brett 291. SheifFelin v. Harvey 147. 529. Sheehy v. Mandeville 312. Shepard v. Hall " V. Temple Sherwood v. Salmon Sherhley v. The U S. Shiras v. Caig Shoemaker v. Keely Shotwell V. Morris Sicard v. Whale Sides V. Hilleary Sigourney v. Richards Sill V. Rood Simpson v. Griffin Singleton v. Bremar Skeldins: v. Warren 281 351 582 3 245 314 366 238 141 321 211 176 359 13 464 89 578 349 330 574 449 553 142 377 356 26 574 323 149. 542 313 297 212 340. 357 Skelding v, Whitney Skidmore v. Smith Skillern's exr, v. May Skillman v. Merrill Skinner v. Somes 392 137 159 112 90 213 334 34 369 225 347. 359 566 571 386 111 430 Slacum V. Powers 263. 366 Slade V. Green 491 '' V. Halstead 213 " V. Teasdale 466 Slasson v. Davis 462 Slaughter v. Green 142 Slaymaker v. Gundabacker 342 Slocum V. Pomery 201. 251. 363. 366 " V. Wheeler 520 Sloss V. Galloway 403 Smedes v. Bank of Utica 327 Smedes v. Hooghtaling 419 452 Smith V. Alexander 509 • " V. Bank of Wash- ington " V. Bing " V. Bouditch " V. Bowker " V. Buchanan " 's Case " V. Cooper " V. Crook Elder Evans Lane Lewis Lusher Mayo V. Richardson V, Rosencranz V. Sanborn V. Segar 288 110 21 509 486 502 438 231. 398 573 488 346 577 319 200 418 64. 100. 518 393 322 583 196 310. V. Shackelford " V. Sinclair " V. Smith 316. 350. 351. 450 " , the People v. 37, 39 " V. Vanderhorst 454 " V. Whiting 354 " V. Wright 148. 532. 560 Smock V. Dade 13 Smurr v. Forman 184 Sneed v. Weister 510 Snell V. Rich 5,71 Snelling v. Boyd 268 Snyder v. Satterlee 252 Society of Chaplins v. Canada 194 Somers v. Barkenstead 580 Soney v. M'Neil 414 NAMES OF CASES. XXI South Carolina Society v. Johnson 396 Sparhawk v. Bartlett 57. 61 " V. Broome 164 Speak V. The U. S. 405. 409 Spence v. Sanders 468 " v. Sterling 285 " V. Tilden 450 Stackpole v. Arnold 428 Stagg V. Pepoon 230 Stahl V. Berger 231 Stamford v. Barry 47 Stamps T. Graves 189 Stanley v. Duhurst 162 Staples V. Spring 567 " V. Staples 38 Starr v. Jackson 574 " V. Vanderheyden 37. 39 State V. Boyd " 419 " V, Carr 180 " V. Carrier 504 " V. Connor 115 " V. Damon 51 " V. Drew 115 " V. Gaillard 385 " V. Giles 503 " V. Gordon 456 " V. Graves 189 " V. Green 142 " V. Guinard 513 " r. Hill 116 " V. Holding 41 " V. Lawrence 463 " V. Mairs 113 " V. Rockafellow 116 " V. Twitty 504 " V. Ward 117 " V. Wayman 416. 454 " V. Wilson 500. 502. 506 State Bank v. Ayers 296 " V. Hellen 284. 288 " V. Hurd 351 " V. Wells 431 Stearns v. Burnham 324 Stebbins, the People ex rel. V. Orleans C. P. 376 Steel V. Lock 579 Steele v. Sawyer 370 Steinmetz v. Currie 296 Stephens v. Graham 228. 338 Sterret v. Bull 468 Sterry v. Robinson 249 Stevens v. Bell 138. 209 " V. Bigelow 84 " V. Blunt 190 " V. Judson 446 " V. Propr. of Canal 582 " The People v. 58. 78 " V. Trusdell 464 " V. Tuttle 462 Stevenson v. Kimber 72 Stewart v. Eden 332 " V. Greenleaf 255 " V. M'Guinn 100 Still V. Lynch 356 Stoaifer's lessee v. Colran 157 Stockbridge V. Damon 202 Stockman v. Riley 258. 293 Storer v. Freeman 496 Storer v. Logan 226. 358 Stores V. Stores 462 Story V. Hammond 567 Story V. Odin 584 Story on Bailment 539. 548 Stout V. Stevenson 422 Stow V. Wyse 449 Stowel V. Flagg 582 Stoyel V. Adams 515 Strand v. Skinner 460, 582 Streshley v. U. S. 392 Strong V. Spear 428 " V. Tompkins 225 Stuart V. Fitzgerald 71 Stubbsv. Burwell 425 Sullivan v. Alexander 509 Sullivan v. Bridge 157 Supervisors of the County of Allegany v. Van Camoen 375 Sutcliff V. M'Dowel 172. 244 Suttles V. Whitlock 414 Sutton V. Irvine 241 Swayze v. Hull - 224 Swasey v. Vanderheyden 200 Swergart v. Burk 382 Swett V. Brown 138 Swift V. Stevens 270 Tafts V. Brewster 428. 444 Talbot V. Clark 243 Talbot V. Seamen 521 " V. Three Brigs 520 Talcott V, Goodwin 158 Tallman v. Gibson 230 XXll NAMES OF CASES. Tappen v. Vanwagenen 211.213 Tate V. Southard 494 Taunton Bank v. Richard- son 307 Ta.y\or, ex parte 115 " V. Beck 357 " V. Coryell 241 " V. Geary 167 " V. Grace 429 " V. Rainbow 574 " V. Shufford 494 Temple v. Belding 463 Ten Eyck v. Vanderpool 321 Terry v. Fargo 198 Thatcher v. Dinsmore 215. 316 " V. Gammon 111 The People ex rel. Bacon v. Wilson 37 The People ex rel. Goodrich V. Chatuaque C. P. 376 The People ex rel. Stebbins V. Orleans C. P. 376 The People v. Barret 48 " V. Casborus 48 " V. Goodwin 49. 115 " V. Judges of Onondaga 74. 76 " V. Niven 42 " V. Smith 37 39 " Stevens 58. 78 The President, &c. of the Bank of Chenango v. Root 40 The President, &c. of the Bridgeport Bank v. Sherwood 15 The President, &c. of the Goshen & Minisinck Turnpike Road v. Hurtin 190 The Schooner Zeypher 480 The Territory v. Benoit 116 " V. M'Farlanell6 Thomas v. Best 466 " V. Buckley 93 " V. De Graffenreid 583. 588 Thompkins v. Sands 572 Thompson v. Ketchan 276 " V. M'Cord 385 " V. Robertson 254. 362 Thmopson v. Saltmarsh 125 " V. Skinner 418.419 " V. Snow 542 " V. Wilson 324 Thorn v. Deas 129 Thornberry v. Churchill 483 Thornton v. Wynn 309 Thorp V. Burling 126 " V. Faulkner 76 Thurston v. M'Known 175. 222. 226. 267 Tierman v. Jackson 127 Tillau V. Britton 350 Tillier v. Whitehead 199 Tillotson V. Grapes 212 Tilton V. Parker 510 Tingeley v. Bateman 510 Tinsley v. Anderson 419 Titcomb v. Thomas 264 Tobey v. Barber 313 Tolly V.Smith 16 Tombecbe Bank v. Win- throp 363 Tooker v. Bennet 305 Townson v. Havre De Grace Bank 177 Townlev v. Sumral 182. 209. 238 Townsend v. Fenners 241 Townsend v. Riddle 348 " V. Susquehannah Co. 579 Tracy v. Wood 131 140 Treadway v. M'Reel 80 Treat v. M'Mahon 509 Trotter v. Hawley 74 Trurabell v. Trout 267 Tucker v. Oxiey 170 " v. Smith 222 Tuckerman v. Hartwell 236 Tullock v. Cunningham 16 Tunnison v. Cramer. 453 Tuno v. Rogers 468 Tunc v. Lague 245 Turcas v. Rogers 56 Turnbull v. The Enterprize 474 Turner v. Tuttle 582 Tuttle V. Tuttle 585 Tyler v. Binney 252 " V. Ulmer 128. 585. 586. 588 NAMES OF CASES. XXlll Ulin V. Kittridge 267 Underbill v. Gibson 199 Union Bank of George- Town V, Geary 12 Union Bank of Maryland V. Ridgly 377. 397 United States v. Arnold 453 " V. Arthur 444 " V. Four pieces of cloth 391 " V. Gordon 445 « V. Hatch 407 " V. Hipkins 389 '<■ V. Hooe 137 V. January 415 V. Parker 512 V. Spalding 373 V. Til lo I son 403 V. Warral 499 , Vail 569 V. M'lvers 138 Upton V Urguart Valk V. Simmons 245 Vallet V. Parker 340 Van Antwerp v. Ingersol 455 Van Bracklin v. Fonda 576 Van Brunt v. Sehenk 572 Vanderpoel v. Wright 71 Vanduser v. Lindeman 575 Vanhorn v. Freeman 576 Van Ness v, Forrest 203 Van Ostram v. Reed 404 Van Slyk v. Hogebroom 580 Van Staphorst v. Pearse 251 Van Winkle v. Ketchum 201 Varner v. Nobleborough 236. 315 Violet V. Patton 208. 262. 266 Visher x. Yeates 213 Vosburgh v. Theyer 463 Vose V. Grant 179 " V. Handy 264. 420. 490 Vrooman \. Lawyer 570 " V. Phelps 3S6. 446 Waddington v. Vrenden- bergh 47 Wadsworth v. W^endell 374 Wailing v. Toll 200 Waite V. Harper 221 Wakefield v. Martin 470 gomery Walker v. Haskell Walden v. Chamberlain 473.477 479 " V. Grant 6 Waldo V. Forbes 453 Walker v. Bank of Mont- 304 587 " V. Laverty 308 " V. Lewis 95 " V. Scott 424 Wall V. Wall 439 Vv^allace v. Agry 232 " V. Rippon 383 Walrad v. Petrie 326 Walsh V, Bailie 198 " V. Ringer 484 Walson V. Loring 249 " V. Wells 374 Waller v. Brewer 146 Walton V. The U, S. 456 Ward V. Center 569 " V. Johnson 410 " V Summer 134 Wardell v. Fosdick 566 " V. Howell 212. 340 Warder v. Carson's exr. 245. 292 " V. Tucker 245 Warner v. Griswold 16. 29 Wcirren v. Crabtree 224 " V. Lynch 192 " V. Merry 218. 347. 359 Waterhouse v. Waite 585 Waterman v. Allen 74. 76 " V. Robinson 126.133 Witers T. Eddy 432 Water's Reps. v. Riley 382. 401 Watkins v. Baird 574 Watkinson v. Laughton 561 Watson V. Cambridge 432 Watson V. Loring 249 " V. Wells 374 Wattles V. Laird 83. 349 W^eaver v. Shybrook 382 Webb V. Danforth 218. 347 Webster v. Chews 87 " V. Lee 255. 257. 354 V^eed V. Vanhouten 283.331 W^eeks v. Lawrence 46 " V. Trask WeU'h V. Lindo Weld V Bartlett 55 260. 352 584. 587 XXIT NAMES OF CASES. Weldon v. Buck 246. 249. 361. 363 Welman v. Connoly 91 Welsh V. Barrett 345. 346 Welsh V. Linds 352 Wenworth v. Wen worth 214 Wheeler v. Bailey 513 " V. Patterson 577 " V. Raymond 86 " V. Wheeler 107. 108 Wheelock v. Wheelright 132. 139. 570 Whetmore v. Smith 471 Whetton v. Townsend 55 White V. Canfield 90 " V. De Villiers 396 " V. Dingly 575 " V. Rowland 256 " V. Judson 472 " V. Kibbling 286. 360 Whiting V. Johnson 390 Whitney v. Abbott 283 Whitney v. Crafts 161 Whittier v. Smith 127 Whitewell v. Johnson 243 Whitworth v. Adams 224 Widgery v. Munroe 359 Wiggins V. Bush 223 Wilbour V. Turner 257. 342 Wilbur V. Seldel 345 Wilcox V. Mills 111 Wild V. Fisher 317. 350 Wildridge v. Patterson 438 Wiley V. Moore 408 Wilkes V. Washburn - 371 Wilkie V. Roosevelt 224. 359 Wilkins v. Baird 574 Wilkinson v. M'Locklin 399 " V. Nicklin 259. 266 Wilks v." Barstow 402 Williams V. Allen 527. 352 " V. Alley 427 " V. Branson 549 " V. Granger 255 V. Grant 527. 532 Hodson 401 Matthew-s 332. 343 Peytavin ■ 539 Smith 27 U. S. Bank 295 Willing V. Consequa 455 Willis V. Crooker 94 V. V. V. V V V. Willoughby v. Willoughby 326 Wilson V. Williman 276 " V. Clements 205 " V. Codman's exrs. 168. 324.333 " V. Holmes 257 " V. Lenox 334 " V. Wilson 567 Winchell v. Stiles 84 Winter v. Saidler 359 Winsor v. Cutts . 542 Winston v. The Common- wealth 398 Winthrop v. Curtis 490 " V. Dockendorf 388 " V. Pepoon 249. 323. . 364 Wise V. Wilcox 568 W^olcottv. Van Santwood 283. 285. 330 Wood V. Baily 333 " V. Jefferson Co. Bank 300. 302 " V. Repold 263 " V. Schroeder 171. 183 Woodbridge v. Brigham 331 Woodfolk V. Leslie 191 Woodhul V. Holmes 218. 340. 347. 357 Woodruff V. Halrey 137 Woods V. Grundy 169 Woodson V. Barret 387 Woolley V. Constant 231. 405. 408 Woolley V. Seargent 184.194 Worcester Turnpike Co. v. Williard 318 Worthington v. Hilyer • 490 Wright V. Jeffrey 71 Wyckoffv. Bergen 9 Yates V. Russel " V. Foot " V. Joyce " V. Van Rensalaer 5 213 573 515 Yeaton v. Bank of Alexan- dria 208 Yeomans v. Chatteiton221. 223 Youhg V. Covell 569 " V. Gregorie 583 " V. Hosmer 584. 587 A PRACTICAL ABRIDGMEx^T OF AMERICAN COMMON LAW CASES. I. CLERKSHIP AND ADMISSION OF, p. 1. II. POWERS OF, p. 4. III. PRIVILEGESOF, p. 13. IV. DISABILITIES OF. (A) To BE WITNESSES, p. 16. (B) In RELATION TO CONTRACTS BY, p. 17. (C) To BE BAIL, p. 19. V. APPOINTMENT OF, &c. (A) Appearance of, p. 19. (B) Agreements between, p. 23. VI. CHANGING OF, p. 24. VII. RIGHTS OF ATTORNIES AND CLIENTS, (A) His lien for costs, p. 25. (B) Professional confidence, p. 30. VIIL LIABILITIES OF. (A) Negligen-ce of, action for, p. 33. (B) By the summary jurisdiction of the court, p. 37. (C) For criminal conduct, p. 41. I. CLERKSHIP AND ADMISSION OF.* 1. The Commonwealth v. The Judges of Cumberland Coun- ty. Oct. T. 1814. 1 Sergt. & Rawle's Penn. Rep. p. 187. Motion for a rule to show cause why a mandamus should not A certifi . , /.,/-.. T-.1 r /-^ 1 1 1 cate of clerk issue against the judges of the Common Pleas pi Cumberlana ship by one * The rules are various in the different states, in relation to the clerkship and admission of attornies. They depend upon the various statutory regulations of the states, and the rules of the court, to which application for admission is made. Vol. IL 1 ' 2 ATTORNEY. — Clerkship and admission of. of the judg County, commanding them to proceed to the examination of Al- niemecturiexander Brackenridge, and if found competent, to admit him to isacoinph practice as an aitornev of their court. A rule of the court ance wilh t^ -J _ theiule, of common pleas, required the applicant to serve a clerkship cViresa^ within the state for the term of three years, "with a practising cl rkship attorney, or &;entleman of known abilHies." He produced a practising Certificate of H. H. Brackenridge, Esq., one of the judges of the ge'iuienLr supreme court. The court of common pleas, refused the appli- of known cation, on the ground that H. H. Brackenridge, Esq. w^as not in abilities. , ^ ,, , ii . common parlance an attorney, counsellor, or advocate : that a service with a judge v^■as not a compliance with the rule. Tilghman^ C. J. We have a rule in this court, on the same subject, and nearly in the same words, as that of the common pleas. Our rule has the words, " gentlemen of the law of known abilities," which I consider precisely of the same import, as "gentlemen of known abilities," in the rule of the common pleas; because no abilities other than legal, could be of any avail, in superintending the ed^ucation of a student of law. So far then as concerns the point before us, the rules of the two courts may be considered the same. And I confess if a gentle- man had studied the requisite time, under the direction of one of the presidents of the Court of Common Pleas, and should apply to us for admission, I should have no hesitation in saying, that he brought himself within the rule. Yates.^ J.jr concurred. It would almost be impraoticalilo, if inJeed it would be useful, to elate thesa numer- ous regulations. One principle, however, seems to prevail throughout the United States, which is, that these rules and regulations apply as well to couiiscllorsi, as at- tornies. There seems to bo no iniportant distinction between them, in the different states, except perhajjs, in New Jersey and Massachusetts: vide Griffith Ueg. vol. 4. p. 1157, and 6 Mass. T. R. 385. In i\ew York, the following regulations have been adopted ; Graham's Prac. p. II. Attornies arc appointed and licensed by thecourt; 1 R. S. 108. sec. 20; and hold their office during life, subject to removal or suspen- sion ; ibid. sec. 23. Tliey are unlimited as to number; 1 R. S. 98; but no person can be permitted to practice without a regular admission from the court. To ob- tain such admission and licence, tho person applying must be a citizen of the Uni- ted States; Rule 6; and must be examined under the direction of the court; Rule 1; and approved by them for his good character and learning ; 2 R. S. 287, sec. 65. In order to insure these requisites, it is provided by rule 2, that no person shall be admitted to an examination as an attorney, unless he siiall have served a regular clerkship of seven years, in the office of a" practising attorney of this court. But if he have regularly pursued classical studies for four years, or any shorter period after the age of fourteen, it may be allowed in lieu of an equal time of clerkship. The extent of such allowance must, at the commencement of the clerkship, be as- certained and settled by one of the juslices of the court,by an order to be signed by him. Rule 2. This order must be obtained at the commencement of the term of clerkship, and will not be inquired into by the court, when application is madu for examination. If special circumstances exist excusing the omission, application A'TTOR'SEY.— Clerkship and admission of. 3 2. Anon. Feb. T. 1809. 4- Johns. N. Y. Rep. p. 191. On the application of A. B., to be admitted as an attorney of J^j^^ ^j^^^^ this court, a certificate of C D,, one of the attornies of this be under 1-1 II AT->iiii-i*i' ^'t^ person court, was produced, which stated, that A. B. had studied m his ai direction office, (which was in a different place from that, in which the at-°' ^'i? '^""l;' ' ^ ... . ney himself, torney himself resided,) under his direction and advice, and as his clerk. Kent, C J. said, that the certificate w^as not sufficient ; that the clerk must- be in the office under the personal direction of the attorney himself; and that the establishment of different of- fices, in different towns and counties by the same attorney, was an evasion of the law, and an imposition on the court. 3. Anon. May T. ISOS. Johns. N. Y. Rep. p. 261. On the application of A. B. to be admitted to an examination '^^* *^^'', ^^ _ _ caie must as an attorney of this Court, the certificate of clerkship by the state the attorney, was, that the clerk " had regularly pursued the study [^^ office oi of the law, under his direction and su"perintendance," &c. 'he a^tor ney.' The Court said, that the certificate was insufficient ; that the attorney ought to certify that the clerk has served his clerkship regularly in the office of such attorney. 4. Ex PARTE, Sayre, Aug. T. 1827. 7 Cowen's N. Y. Rep. p. 368. Per Cur. Savage C. J. Sayre's certificate of commencing ^"•^'^"nif a clerkship was filed Jan. 18,1825; he having three years to in vaca ion serve. In our computation of time for clerkship, we call four "'||^^V® terms, a year : so that Saver required twelve terms. Had his a previous certificate been filed in October term. 1824, he would now be '^^""' entitled to his examination. But it was filed in October vacation. The computation of time is already very favourable to the stu- dent ; more so than in any other case ; and we think we must require the full number of terms in fact, without allowing the filing of a certificate in vacation, to relate to a previous term. 5. Power v. Kent & Whaley. Aug. T. 1823. 1 Cowen's N. Y. Rep. p. 211 The clerk received an amended replication, and agreed to '^''^ '^'e'"^ ^ represents should be made to one of the Judges in vacation, and not to the court during term ; 3 Wend. 456. The power of granting the order of allowance, is confined to tho judges of the court, and does not extend to commissioners ; 2 Wend. 280. 4 ATTOR'SEY. —Poivers of. theattor ^valve the formality of the rule to amend. The question was ney during ... hisabsence. whether it was binding upon the attorney. Per Cur. The clerk represents the attorney during his ab- scence, as to all the ordinary proceedings of the office, and was, consequently, authorised to make this arrangement. II. POWERS OF. An attor ney has power to bind his clienl but Town or Alton v. The Town of Gilmantown. Feb. T. 1823. 2 N. Hamp. Rep. 520. S. P. Buddicum v. Kirk. 3 Cranch, 297 ; Cox, et al. v. Nichols. 2 Yeates' Rep. 546; Mayer, admr. v. Foulkrojj. 4 Wash. C. C. Rep. 503. The attornies in the cause entered into the following agree- ment : "Feb. Term. 1822, Town of Alton v. Town of Gilmanton. anyWuse"^ The parties agree that this action shall stand continued. The ofauthoriiy plaintiff abandons the first and second article in the account, and the defendant agrees to waive all obligations to the notice and service of the notice, and form of the plaintiff 's writ." Defendants^objected to the admission of the writing as legal evidence. Per Cur. Woodbury, J. The objections may be considered- 1st. That no attorney has, ex officio, sufficient power to bind his client to this extent. 2d. If he has, that the writing is merely an executory con- tract. As specifications of his general pov>-er, it is the daily practice for him to waive objections to evidence ; make admission in pleadings or by parol, and enter nonsuits or defaults, to bring a writer error, execute releases, confess judgments, sue out scire facias. We are satisfied it is competent for him to waive any objections to a notice. Second. This agreement having been made after the action was entered by the officers of the Court, in term time, and par- tially carried into effect, it becomes a portion of the files, and parcel of the record, and cannot afterwards be evaded or avoid- ed. ATTORNEY.— Potm^s of. 5 2. Pike v. Emerson. May T, 1831. 5 New Hampshire Rep. 393. S. P. Camden v. Edie. 17 Johns. Rep. 461; Yates v. RussEL. 12 Mass. Rep. 47; Haskell v. Whitney. 16 Mass. Rep. 396. The attornies in the cause signed an agreement to this ettect : v.-aivethe " It is agreed that the judgment of this court in this cause shall ""'S^j^ ''^ ^P be final and conclusive, if against the plaintiff, he hereby waiving his right to appeal, &c." Verdict for defendant, and the plaintiff appealed. Motion to dismiss the appeal. "Per Cur. We have no doubt that an attorney has authority, by an agreement put upon file, in a cause to bind his client, and that such an agreement may, in many cases, be specially enforc- ed. It is the constant practice of attornies to release upon the record a party's right of review, and no onfe ever supposed that in such a case a writ of review could be sustained. So an agree- ment by an attorney to refer a cause is binding upon his client. 3. Holker, et al. v. Parker. Feb. T. 1813. 7 Cranch's U. S. Rep. 436. Appeal from the circuit court for the district of Massachusetts. May sub Per Cur. Marshall, C. J. On the part of the appellants it is ^oarbiua contended, that an attorney at law has no pov.'er, without the '■'°"- consent of his client, to transfer a cause to other judges than those appointed by the laws, and to place it before a tribunal dis- tinct from that before which the party himself has chosen to place it. In this opinion, however, the majority of the Court does not concur. It is believed to be the practice throughout the union, for suits to be referred by consent of counsel, without special au- thority; and this universal practice must be founded on a general conviction that the power of an attorney at law over the cause of his client extends to such a rule. Were it otherwise, courts could not justify the permission, which they always grant, to en- ter a rule of reference, when consented to by counsel on both sides. S. P. Talhot V. Magee, et al. 4 Mcnroe^s Ky. Rep. 375. 4 Gaillard, et al. v. Smart. Oct. T. 18.26. 6 Cowen's N. Y. Rep. p. 386. And may The question before the Court was whether, under a general ^'gj°"^^""* 6 ATTORNEY. '—Powers of. power, an attorney has a right to discontinue a suit. It was con- tended that an attorney' could not discontinue without a special authority for that purpose. That it operated to destroy the re medy which is part of the contract ; and Kellog v. Gilbert, 10 Johns. Rep. 220 ; and Denton y. Noyes, 6 Johns. Rep. 296, were cited Per Cur. Savage., C. J. I do not think a special authority was necessary. Where an attorney is retained, we will not look for a special authority to do so ordinary an act of practice as the discontinuance of the cause. 5. Branch v. Burnley, et al. Oct. T. 1797. 1 Call's Va. Rep. p. 127. May ic It was held by the Court, that an attorney at law, not special- mentand ly authorised to receive payment by his client, may receive pay- his receipt Silent a Considerable time after iud^ment has been obtained, and willoperat . n i t ^ as a dis his receipt will operate as a discharge of the debt. cHsir^'c 01 thed'ebt. Vide Hughs V. Hnllingworth, 1 Murphy, 146. An agreement by the attorney, pending the suit, that the plaintiff shall release the bail, operates as a discharge of the bail. 6. Marsh v. Gold, et al. Sept. T. 1824 2 Pickg. Mass. Rep p. 285. Buthecan Held by the Court, that an attorney at law cannot bind his "^artr/'rV"^ Copartner, by a promise to indemnify an officer for arresting a per- anindemiii son, but the partnership is a circumstance from which, with other ficer. ^ ° circumstances, it may be inferred he intended to act for both; and where the copartner adopted the promise, the action would lie. 7. Walden v. Grant, et al. Feb. T. 1830.20 Martin's Lou. Rep. p. 565. Norcanhe Porter, J. It is contended that the records of the iudcjments, kic.f"mcnt fumished evidence of an assignment by the plaintiffs. But to obtained for make this legal it should be shown that the attorney had author- his client . ,. , i • t i • • i i i ■without au ity to alienate his client's interest in the debt, thority. 8. Murray V. House, Oct. T. 1814. 11 Johns. N. Y. Rep. 518. lease thcin ^^ error, on certiorari, from a justice's court. House sued ATTORNEY.— Poiomo/. 7 Murray before the justice :.C. H. was offered as a witness for the tercstof a ,..„-, 11. 1 1 1 1 r 1 • i 2-1 witness, plamtilf below, and objected to oy the defendant, as interested. The defendant proved the interest to the satisfaction of the justice. The plaintiff's attorney (who, the justice said, ap- peared by a verbal power from the plaintiff) then released the interest of the witness, and the justice then decided that he was competent, and upon his testimony alone, gave judgment against Murray for 20 dollars damage, with costs. Per Cur. A parol request to the attorney, to appear for the party in the suit, is no authority to release the interest of a wit- ness; and the judgment ought to be reversed. 9. Kellog v. Gilbert. May T. 1813. 10 Johns. N. Y. Rep. 229. S. P. Jacxson v. Bartlett. S Johns. Rep. 361. Debt for an escape of one Clark, Defendant offered to prove Cannot dis that the attorney of record for the plaintiff after the arrest di- "''-^'"ge a de . fendant rected the deputy to let Clark go at large out of his custody, for wiihout the the purpose of obtaining a settlement of an account with one ^^"^j^^ ^^^^j^^ AVells, from whom a large balance was due to Clark, which tiff. it was agreed shoidd be applied to the payment of the ca. sa.\ that by the agreement between the plaintiff and Clark, the latter was permitted to go at large, for the purpose above mentioned, and otherwise settling the execution, which Clark promised to do the next day, but he never afterwards returned into the custody of the sheriff. This evidence was objected to by the plaintiff's counsel, and overruled by the judge. The jury found a verdict for the plaintiff, for $334.93 A motion was made to set aside the verdict, and for a new IriaL Per Cur. Kent^ C. J. In the Case of Jackson v. Bartlett, 8 Johns. Rep. 351. the Court declared that the attorney on the record for the plaintiff could not, by virtue of his general char- acter, as attorney, discharge a defendant from custody on exe- cution, without satisfaction. There is no case to be found in which it has been adjudged that he had that power ; though in Payne v. Chute, 1 Roll. Rep. 65. the clerks said, that it was the usual course for the attorneys of plaintiffs to acknowedge satis- faction although they receive nothing. What is meant by that expression does not distinctly appear, but it is impossible it could have meant, that it was the usual course to discharge judgments, without satisfaction rendered to the client, or without his con- sent. The question here is, w^hether the attorney can make a 8 ATTORNEY.— Potc^er^ of. valid discharge of the defendant, on execution, without the consent of the plaintiff, and without any satisfaction received either by the plaintiff or the attorney. The Court, therefore, see no leason to doubt of the opinion delivered on this point, in Jackson v. Bartlett. It did not appear in that case, and does not in this, that the attorney ordered a dis- charge of the defendant from the custody of the sheriff, under any pretext of satisfaction, or of any consent from his client. There was here not even any imposition upon the officer. The officer must have known, as well as the attorney, that there was no satisfaction, or plaintiff's consent, and it would be alarm- ing to creditors, if such a violation of duty, between the attor- ney and the sheriff, was permitted to destroy the plaintiff's right under his judgment. Motion denied. 10 Lewis, admr. v. Gamage, et al. March T. 1823. 1 Pickg, Mass. Rep. p. 347. He cannot This was an action of debt on a bond, in the penalty of $260 debtor by ^^r the liberty of the jail yard. It appeared the defendant set- receivniga t]gj with the attorney of the plaintiff's intestate, for the sum of less sum <#>/•/-• • • than is due. $100, (a receipt for w^hich sum was offered in evidence,) but, by concealing facts, which if known w^ould have prevented a settle- ment. - Ve.r Cur. One objection to the admission of the receipt in ev- idence was, that the attorney had no authority to discharge the debtor, upon the payment of a less sum than the amount of the judgment. No doubt an attorney has a right to prosecute a suit to final judgment and execution, and to recieve the money for which judgment is recovered ; but we are of opinion that he has not a right to discharge the debtor upon receiving a less sum. The creditor may perhaps maintain an action against the attor- ney for making such a coinproraise, but this does not affect the debtor ; he is not injured by being compelled to pay the whole debt. Vide Kimmel v. Kimmel, 5 S.fy R. 294. 11. „ ,. GoRHAM V. Gale. Oct. T. 1827. 7 Cowen's N. Y. Rep. p. 739. May direct ^ _ theslieiiff Assumpsit against defendant as late sheriff of Washington as to the -' ^ -ii c ^ • i i- manner of county, to recover money received by one oi nis deputies. execiuS" At the trial the plaintiff's attorney testified to certain facts as ATTORNEY.— Powjer^ of. 9 to the manner of enforcing the execution on which the money was collected ; and it became a question, whether he had a right to do this under his general warrant. Per Cur. It seems to me whether we take the instructions stated by Mr. Raleigh, or the letter written by him, there is no substantial difference. But if it were otherwise, I apprehend it was competent for the attorney to give the directions contained in his letter ; and that his client was bound by them. It was a proceeding in the progress of the suit, considered beneficial to the parties in that action ; and within the scope of the authority vested in the attorney. Although he cannot enter a retraxit^ Cro. Jac. 211 ; 1 Bac. Abr. 299; or discharge a defendant from execution without payment, 2 Johns. 361 ; 10 Johns. 220, he may, and ought to exercise his discretion in all the ordinary oc- currences, which take place in relation to the cause. He may make stipulations, waive technical advantages, and generally assume the controul of the action. It has been held, that the attorney's consent to stand to an arbitration will bind the client; Carth. 412 ; 1 Salk. 70 ; 1 Bac. Abr, 299. So also, where the at- torney entered a remittit damna^s to part, and took judgment for the rest, it was held regular ; and that this need not be by the plain- tiff in person ; 2 Ld. Raym. 1142 ; 1 Salk. 89. Indeed, it is stated as a doubtful point in Crary v. Turner, 16 Johns. 53, whether the attorney on record could not discharge the debt without satisfac- tion. The court say that, to him " the law necessarily confides a pretty enlarged discretion and controul over the suit." The in- structions then were binding on the plaintiff. 12. Denton v. Noyes. Aug. T. 1810. 6 Johns. N. Y.'Rep. p. 296. S. P. Wyckoff v. Bergen. Coxe's N. J. Rep. p. 214; M'CuLLouGH V. Guefner. 1 Binncy's Penn. Rep. p. 214. Motion to set aside the judgment and all subsequent proceed- May con ings for irregularity. Jjf^J ^^f^ Per Cur. Kent, C. J. The judgment in this case, is regular °^';^^"/jJ^°^^ upon the record. An attorney of this court appears for the de-ftndant fendant to a writ, which had been sued out, but not served, and be binding he afterwards confesses judgment. The want of a warrant of"PO"^""* attorney is cured, after judgment, by the statute of amendments and jeofails; Rev. Laws, vol. 1. 129. 132. (a.) If the attorney has acted without authority, the defendant has his remedy against him ; but the judgment is still regular, and the appearance en- tered by the attorney, without warrant, is a good appearance as Vol. II. 2 l!g ATTORNEY.— Potoer^ of. to the court; 1 Keble, 89 ; 1 Salk. 86 ; Comyn's Dig. tit. Attor ney; (B.) 7 (b). This rule of law, though perfectly well set- tled, -would oftentimes be unjust in its operation, if it was not so restrained as to save the party, who may be affected by it, from injury. It was, therefore, wisely laid down by the K. B., in the time of Lord Holt ; 1 Salk. 88 ; that if the attorney for the de- fendant be not responsible, or perfectly competent to answer to his assumed client, they would relieve the party against the judg- ment, for otherwise a defendant might be undone. I am willing to go still further, and in every such case, to let the defendant in to a defence to the suit. To carry our interference beyond this point, would be forgetting that there is another party in the cause, equally entitled to our protection. Van JVess, J., dissented. Vide his opinion from page 306, to page 318, 6 Johns. Rep. Vide DangerfieWs exr. v. Thurston''s heirs, 20 Martinis Rep. jj. 233j Supreme Court Louisiana, Crichfield v. Porter. 3 Hammond's Ohio Rep. p. 518. Atkinson v. Commissioners of Pickaway. 1 Ohio Rep. p. 375. nofbound The question before the court was, whether a party for whom by the acts ^^^ attorney appears in court, without authority, is concluded by of an attor ;^ i ney who ap the acts of the attorney. him without Per CuT. Sherman, J. The defendant contends that the com- authoruy. plainant is bound by the act of the attorney, although unauthor- ised, and 1 Salk. 68. 88; 1 Bibb. 89 ; 6 Mod. 16. and 5 Mod. 205 ; are cited, in support of this proposition. These authori- ties show the liability of an attorney to the person, who has sus- tained damages through their neglect, or misconduct ; and some of them recognize the doctrine that his acts are conclusive upon the person, for whom he has appeared, unless the attorney is in- solvent, or in suspicious circumstances. They appear to be founded upon reasons of policy, that, as the attorney is a sworn officer of cour-., he is himself responsible to the person, for whom he appears, and the opposite party is in no fault, and has no ad- equate means of ascertaining the authority of the attorney, he ought not to be delayed or injured by the unauthorized act of such attorney, if he is of sufficient ability to respond in damages to the person, for whom he undertook to appear. This reasoning is certainly plausible, and worthy of some consideration ; but does not furnish any sufficient ground why one of the most ob- ATTORNEY.— Powrj o/. 11 vious and well settled principles of law, as well as justice, should be departed from. That no person is to be bound by the act of a stranger, in whom he has vested no authority, nor reposed any confidence, and over whom he can exercise no control. The ad- mission and oath of an attorney, is for the safety and advantage of a suitor; but does not of itself authorize him to appear in any cause. His authority to appear, is essentially derived from the party, and dependant on him for its continuance ; and although it is not the practice of our courts; in ordinary cases, to require the attorney to produce either a u-arrant or other authority from the suitor, before he is permitted to appear ; yet its production may be, and, under certain circumstances, undoubtedly would be required by the court. Courts act on the presumption that the attorney is authorized by the party, and it is in virtue of this au- thority, that he is permitted to appear and prosecute, or defend, not merely because he is an officer of court, admitted by them, and sworn to discharge his duty. There are many officers, in our country, admitted to act as such, and sworn to a faithful dis- charge of their duties, by public authority, who derive their power, in each particular case, from the individual, for whom they act. The office of an auctioneer is of this kind. They are appointed, commissioned, and sworn, by the officers of govern- ment, and no one will pretend that they could sell, or transfer the property of an individual, without, or against his consent, and yet any argument derived from consideration of public policy, or convenience, in favour of considering the acts of an unau- thorized attorney conclusive upon the suitor, applies with equal force, in so considering the acts of an unauthorized auctioneer, upon the person interested. The mischief that might follow, from holding that the acts of the unauthorized attorney are con- clusive upon the person, for whom he appears, would induce the court to hesitate long before they would establish such a rule. It would in some degree, subject the property of every individ- ual, in the community to the mistakes, or malice of a particular class of men. Whatever formerly might have been the rule in the English courts, their practice would now seem to be, not to consider the act of the attorney conclusively binding, unless he is employed by the person, for whom he appears ; 166 Archb. Plead. And the decisions of the courts in the United States, when the point has been made, hasbeen in accordance with such practice. Plain- tiffs may sometimes suffer inconveniences, by the appearance of an unauthorized attorney for the defendant; but courts to avoid this evil, ought not to run in the opposite extreme of subjecting 12 ATTORNEY.— PMwer^ of. the interest and rights of such defendant, to the uncontrolled act of a stranger, neither employed or trusted by him. In af- fording a remedy for a defendant so situated, courts will be care- ful to protect the plaintiff in any right he may have acquired, and interfere only so far with the judgment, or other proceedings as may be necessary to afford the defendant an opportunity of making defence. Vide Handley v. Statelor, 6 Little^s Rep. 186. Court of Appeals^ Kentucky^ where the same principle is recognized. 14. Lynch, et al. v. Commonwealth. Sept. T. 1827. 16 Sergt. & Rawle's Penn. Rep. p. 368. Powerceas Per Ciir. Huston, J. In Pennsylvania the professions of at- judement is ^^'^^^y? ^^^ Counsellor at law, are not distinct, the same person obtained, conducts the cause in all its stages, and it has not been consider- ed that this authority ceases, when judgment is obtained ; a pow- er of attorney is never given or filed, unless demanded by the Other party, which does not happen in one case of fifty thousand, and then if procured after demand, it is sufficient ; the attorney is in some degree the agent as well as lawyer of the plaintiff; when execution issued, he often gives time t6 the defendant, and directs the sheriff to postpone a sale advertised ; and so far as I know, this has always been taken as a justification to the sher- iff for not selling. 15. The Union Bank of George Town, appellant, v. Geary, APPELLEE, Jan. T. 1831. 5 Peters, U. S. Rep, 99. A request The appellee filed her bill and set forth that her husband be- by an attor fore his death, became security on a note, which was discounted party to at the Union Bank of George Town. That after the death of kdOTnent ^^^ husband, she was called upon by the attorney of the bank, IS within and requested to confess judgment on the note, and was assured' powers. "^^ by him, if she did so, the bank w^ould proceed against the maker, who he told her had property to satisfy it. She confessed judgment. Held by the Court, Thompson, J. That this agreement was within the scope of the general authority of an attorney, and was binding upon the Bank, and the Bank having failed to pro- ceed against the drawer of the note, the Court enjoined proceed- ings on the judgment confessed by the administratrix. Vide 8 Johns. Rep. 366 ; 10 Johns^ Rep. 220 ; 9 Cranch^ 160 ; 17 Johns. Rep. 324. ATTORNEY.— Pnmte^wo/. 13 16. " Johnson, et al. v. Brandt, et al. Jan. T. 1822. 10 Martin's Rep. 638. S.P. Hayes v. CrRRY, 9 Martin, 88. Per Cur. Porter J. The question is, whether an attorney Need not 1 • • 1 /-^ X r i.1-- show his au and counsellor duly licenced to practice in the Courts ot this thohty. state, can be compelled to exhibit his authority for instituting an action at law. We hold that he cannot be called upon for his authority, under which he acts as a matter of course. 17. Smock v. Dade. Nov. T. 1826. 4. Randolph's Va. Rep. p. 639. Held by the Court, Summers, /., that an attorney at law l^as ^?,™^7[J^^ no right to receive a bond from the debtor in discharge of his but cannot clients claim, without the assent of the client. If he does he without the is the agent of the defendant, and the plaintiff may still proceed ^^.^^"'■^f'^^^ against the defendant. The authority of the attorney to receive a debt is admitted, but that authority, in our opinion, does not extend to its commutation, withoiit the assent of the client. Vide Hudson v. Johnson., 1 Wash. 10 ; Branch v. Burnley, 1 Call. 14:1. III. PRIVILEGES OF. 1. Scott v. Van Alstyne. Aug. T. 1812. 9 Johns. N. Y. Rep. p. 216. Assumpsit. The suit was commenced by bill against defen ^^ ^^^r dant as one of the attorneys of this court. ney defend -m 1 ^ f 1 • r ^ • r j i • *"^ cannot rlea, that defendant is not one ot the attornies of this court waive his acting and practising as such, &c. Demurrer. privilege. Per Cur. An attorney being defendant, cannot by plea, waive or destroy his privilege, because the privilege is allowed him, not for his own sake, but for the sake of the court, and the suit- ors in it. If he renounces his privilege by mere absence from court, and business, how is the plaintiff to know that fact be- forehand ? He can only judge from the record, and it is suffi- cient for him, that the defendant is an attorney, prout patet per recordum. This is the amount of the doctrine in the adjudged cases ; Gardner v. Jessop, 2 Wils. 42 ; Farrill v. Head, Barnes, 419. If the defendant wishes to withdraw himself from the privilege, or, as he may choose to consider it, the burden of his ojSice and distinction as an attorney, he must apply to have his name struck off the roll. This may be done at anytime, and the 14 ATT OR}' < p. 718. Motion that an appearance be effected by filing common ^ai^ J^sl ft7f h!f the defendant being an attorney and counsellor of this court. It acts either was objected, that the defendant had not acted as attorney with- ^^ ^""^"g^l^ in a year, except in the United States courts. within a J T '■ _ year. Per Cur. He is both attorney and counsellor, and if he con- tinues to act in either capacity, it is sufficient to retain the priv- ilege. Let the common bail be filed. 4. In the matter of Wm. M. Bliss, Gent, one, &c. Oct. T. 1812. 9 Johns. N. Y. Rep. p. 347. • -1 n Theprivi Held by the Court, that the common law privileges of attorn- leges of may ies might be taken away by the manifest intent of the legislature, ^^gyby^tho The acts of 1786, and 1801, in regard to the enioUment of the manifest in militia, exempted the attorney general, and registers and clerks legislature, of courts, sheriffs, coroners and constables. These special ex- "^^"'^°""^ ^^ ' . ' . , '■ press words ceptions are idle and superfluous, if the attornies of the cjiirt are exempted. The intention of the legislature appears to be too manifest to leave a doubt. 5. The President and Directors of the Bridgeport Bank V. Sherwood. Jan. T. 1819. 16 Johns. N. Y. Rep. p. 43. Motion to set aside the execution issued in this cause for ir- gainst, pa regularity. P«rs must ° •' be sei"vea Per Cur. In suits against attornies, not only the bill, or dec- on the attor laration, and notice of rule to plead, but notices of all the sub- ally, sequent proceedings in the cause, must be served personally on the defendant, or his agent. Affixing up a notice in the clerk's office, as in suits against common persons, is not sufficient ; Back- us V. Rogers, 8 Johns. Rep. 346. The assessment of damages, and all subsequent proceedings, must be' set aside, with costs, on the defendant stipulating not to bring an action of trespass against the plaintiff. 6. The Inhabitants of New Castle v. Bellard. May T. 1825. 3. Greenleaf 's Maine Rep. p. 369. Assumpsit. The action was brought against the defendant, an in a suit by attorney, for money collected by him for the use of the plaintiff, not^get off a er 16 ATTORISIEY— Disabilities of. demand he 'Y\ie defendant offered to prove that he had a demand of his own has against . . T . the treasur against the treasurer in his private capacity. Melle7i, C. J. It is not competent for the defendant in this action between the town and himself, to offsett any demand on account, which he has against the treasurer in his private capa- city, any more than against any other person. Warner & Post v. Griswold. May T. 1832. 8 Wend. N. Y. Rep. p. 665. Where a Held by the Court, Sutherland^ J., that where a suit is prose- suit by one •' _ ' , ' , ' . ^ ofa partner cuted by two attornies in partnership in the name of one of them *"^' upon the record, they may jointly sue their client for the recove- ry of the costs ; and if a suit be instituted in the name of one, and should be unskilfully conducted, the other would be respon- sible'to the client. IV. DISABILITIES. (A) To BE WITNESSES. 1. TuLLOCK V. Cunningham. Aug. T. 1823. 1 Cowen's N. Y. Rep. p. 256. S. P. Carriff v. Myers. 15 Johns. Rep. p. 246 ; PixLEY V. Butts. 2 Cowen's Rep. p. 421 ; Tol- ly V. Smith. 7 Halst. N. J. 139. iTy of'^an^aJ P^^' ^'wr. As between the plaintiff and defendant, the attorn- torney to ey was a competent witness to prove the authority to himself, to appear be ,, - .1 •. a i i fore a jus appear as an attorney m the suit. And where a person appears lice may be f^j. ^ party in a justice's court he is himself a competent witness proved by ^ •' _ -^ _ •■■ the attor to prove his authority. ney imise VideReidv. Colcock^ 1 JYott^ M^ Cord, 592. 2. Philips, et al. v. Bridge. June T. 1814. 11 Mass. Rep. 242. S. P. Fisher v. Willard. 13 Mass. Rep. p. 379. Is compe r^ • -re • ... tent to Case against the sheriff for a default in one of his deputies m mstmctbnsnot levying an execution, &c. ^^^sTlV" '^^^ attorney in the principal cause was offered as a witness to though he prove the due delivery of the execution, and instructions to the pmi^ibL7o^r *^^^^'^'^^^"^- ^^ ^'^^ objected to, as an interested witness, but negligence, the objection was overruled by the judge. ATTORNEY.— /;u-e/rt^ion to contracts by. 17 Per Cur. The incompetency of the witness is made to rest upon his liability, with his partner, to answer to the creditor for negligence in not deliveiingthe execution seasonably to the sher- iff or his deputy, in case the present suit is not maintained against the sheriff. We are of opinion, that this supposed liability does not affect his competency : but he must .d considered in the light of an agentj whose responsibility may affect his credit only with the jury. The circumstance of his having endorsed the writ in the former action, was adverted to. But this not rendering him lia- ble for the costs in the present suit, does not affect his compe<"e is en X. ,.. J I, iu r f. tered.what scma, or by attorney ; and whenever the appearance oi an attor- ever is done ney is entered on the record, it is always considered that it is l^y ^e •'^I's^con"^ the authority of the party ; and whatever is done in the process sidered as of the cause by such attorney, is considered as done by the par- ""^^^^ ty, and binding upon him. And whether the attorney is faith- ful to his trust, or not, is a matter between him and the party, his client, to whom he is responsible for the faithful discharge of his duty. 5. Smith v. Bowditch. Oct. T. 1828. 7Pickg. Mass. Rep. p. 137. A party is Whitman moved for a new trial, on the ground that a deposi- estopped to tion taken in the cause, was taken without legal notice. The attorney ap notice was served upon Whitman, who offered to testify that the P'^^''^'^ .^^'".'^ . , , outauthon plaintiff had never spoken to him concerning the cause, but that ty. he had signed a demurrer being acquainted with the plaintiff — he had signed it as a formal thing. Per Cur. The signature of Whitman, attorney, is a matter of record and cannot be disputed. The defendant had a right to look to the record ; and if the person, whose name is there as at- torney, acted without authority, and the plaintiff is thereby injur- ed, the remedy is by an action for damages. 6. Forbes V. Perrie's admrs. MayT 1801. 1 Har. & Johns. Md. Rep. p. 109. - Assumpsit. T^^ '^'^V'"' , . _ in certain Chase, C. J. The defendant ofiered evidence to the jury, go-cases will ing to prove that P. B. Key, Esq. an attorney of this court, and ^Sney as* who had conducted the business of the plaintiff in particular fi?ent both courts, had the claim (to recover which this suit was brought) and defend of the plaintiff against the defendant as administrator of his fa-^"^* ther, to collect, or bring suit thereon. That he received from 22 ATTORNEY.— ^ppointnmii of, iifc. the defendant sundry bonds payable to the defendant, for money due to him, and gave a receipt for the said bonds, stating that they were to be put in suit for the use of the plaintiff, and the money, when received to be applied in discharge of the debt due from the defendant, as administrator to the plaintiff. That suits were brought on the bond, judgment obtained and executions is- sued, and the plaintiff prevented them being laid. The defen- dant prayed the direction of the court, that if from the evidence they were of opinion the plaintiff prevented the levy of the ex- ecutions, that then the defendant was entitled to a credit, to the amount of them. The attorney in this case, was agent both for plaintiff and defendant. The plaintiff had no power to interfere in the collection of the money on the bonds. The court refus- ed to give any direction to the jury. 7. HoTCHKiss V. Le Roy & Rodgers. May T. 1812. 9 Johns. N. Y. Rep. p. 141. Inasuitbv Certiorari from a justice's court. Action to recover a bill of an attorney costs. The plaintiff proved by the attorney of the defendant, r?tToVof°^ that Le Roy and Rodgers acted as attornies for the plaintiff, but him is neces there was no proof that they were employed by Hotchkiss. The bill of costs was signed by Rodgers in the name of the plamtiffs, after they had dissolved. Per Cur. There is no evidence whatever, that the plaintiffs below were employed by the defendant to prosecute the suit, in which the bill of costs, for which this suit was brought, arose. It is hardly to be presumed, that the suit was commenced and prosecuted without his directions, but some evidence ought to have been offered to the jury, to authorize them to draw such a conclusion. Although it might be difhcult, and, perhaps, impos- sible, in most cases, to prove the original employment; yet some recognition of the attorney in the progress of a suit, may easily be shown, and without some such proof, it would be unjust, and a dangerous precedent, to make a party liable for costs. 8. The Inhabitants of the Township of North Brunswick V. BooRAEM, ET AL. Kov. T. 1828. 5 Halst. N. J. Rep. p. 257. A proceed Defendants pleaded " that this suit is not prosecuted by the tionandnot Township Committee of North Brunswick, in the County of Mid- ilie^ro e^r '^^^^^^J against the said defendants, but by one Joseph Marsh, course &c,, without right or authority. ATTORNEY .—Agreements hehoeen. 23 Per Cur. Ewincr. C. J. The substance of the plea is, that ^'^ere an at tornev inter the attorney of the plaintiff had no authority to prosecute this feres in a suit, being retained by one Joseph Marsh, and not by the town- authOTity"' ship committee. Such matter is not the proper subject of a plea. No precedent of the kind is any where to be found. If the town- ship committee are dissatisfied, they may apply and have the pro- ceedings stayed. And if the defendant properly verify the alle- gation, that an attorney is, to their vexation, without authority, using the name of the plaintiffs, and the process of the court, we shall properly interfere for their protection. But in both cases, the proceedings will be summary, by motion and rules. Such being the regular mode of relief, the defendants are not permit- ted to resort to a plea ; nor are the plaintiffs to be subjected to the delay and expense of a demurrer to dispose of a plea of this nature. (B) Agreements between. 1. Fernald v. LADiD. Sept. T. 1828. 4 New Hamp. Rep. p. 370. A rule upon the plaintiff's attorney had been obtained, tp showmentsbe cause why he should not be ordered to repay, &c. in pursuance [j^^^g^j"^"®^ of an agreement, one of the parties to the suit having died- may be en forced by at Per Cur. We have no doubt, that an attorney may be ordered (achment. to perform a contract made by him in court, in relation to an ac- tion, and that the performance of the order may be enforced by an attachment. But we should not be disposed to adopt this method, to enforce the performance of a contract, except in very clear cases. The only instances, in which we should be dispos- ed to interfere in this way, would be those where the contract had been reduced to writing, and put on file, or where it had been entered upon the docket by the clerk. But in cases where the terras of the contract are in dispute, where the contract was not at the time reduced to writing, but left to be collected from the recollection, or loose memoranda of those, who made it. We are inclined to leave those who think themselves aggrieved by the breach of such contracts, to their remedy by action ; 3 B. & A«47, Burrell v. Jones ; 1 B. & C. 160, Iveson v. Conington ; 2 Cowen's 460, Waring v. Baret ; 2 ditto, 589 ; 3 Bing. 79, Hul- lings V. Jones ; 2 N. H. Rep. 520, Alton v. Gilmanton ; 5 Johns. 368. Rule discharged. 24 ATTORNEY.— Changing of. 2. Dubois v. Roosa. Feb. T. 1808. 3. Johns. N. Y. Rep. p. 145. S. P. Grisv.'old v. Lawrence. 1 Johns. Rep. p. 507. yV ffrc G m c n t s between -P^^ Cur. No lules by consent, except such as are entered in are not bind fjjg book of common rules, are binding, unless signed by the at- enterecl in tornies. According to the spirit of the former decisions of the common ° court, no agreements between parties, or their attornies, are bind- rulesorre ing, unless in writing, and signed by them, or by some person writing. authorized for that purpose, or entered in the book of common rules. 3. Parker v. Root. Nov. T. 1810. 7 Johns. N. Y. Rep. p. 320. Ui^cour?^ The defendant moved for judgment, as in case of a nonsuit, will not no for not bringing the cause to trial at the last Albany circuit, lice it even as to bring Sherwood^ coutra^ read an affidavit, stating that the attornies to^tria??"^^ had entered into a parol agreement to change the venue in the cause ; which was the reason it was not brought on to trial, pur- suant to the notice. Per Cur. We cannot take notice of parol agreements of at- tornies, even with respect to bringing a cause to trial at the cir- cuit. The motion is granted ; but with leave to stipulate, on payment of costs of this application. VI. CHANGING OF.* 1. Darnell v. Harrison. May T. 1801. 1 Harris & Johns. Md. Rep. p. 139. Effect of a This cause was standing under notice of trial, issue being join- rule to em ej and a rule laid, at the present term, on the defendant to em- ploy new . counsel. ploy new counsel, his former counsel having declined the prac- tice of the law, &c. An affidavit of the service of a copy of the rule on the defendant was filed. Corkj for the plaintiff, moved the court for trial, or judgment at the present term, the defendant not appearing in person or by attorney. Rule accordingly. Johnson^ afterwards appeared for the defendant, and confessed judgment. * After appearance, a party may change his attorney by leave of the court M'Phcrson v. Robison, 1 Doug. 217. On motion ; Anon, 7 Mod. 50. Or by judge's order ; Wood v. Plant, 1 Taun. 44 ; and a copy" of the judges order must be served ATTORNEY.— Rights of. 26 2. HiLDRETH V. Harvey. Jan. T. 1803. 3 Johns. N. Y. Cas. 300. Motion to set aside judgment and e^^ecution, on the ground to Tppoinf that defendants attorney died before the entry of the judgment^ another, and that the defendant had not been warned to appoint a new one. Per Cur. The statute is peremptory and decisive, that " where any attorney shall die, or cease to act, or be put out of the roll, the person, for whom he was attorney shall be warned to appoint another attorney in his place." A constructive warning is not sufficient, nor is it enough that the defendant knew of the death of his attorney. A notice put \ip in the clerk's office, or ex- ecuting a writ of enquiry, is not such a notice as the act requires- 3. Caldwell v. Lovett. Oct. T. 1816. 13 Mass. Rep. p. 422. Per Cur. An attorney, having endorsed an original writ, can- ingWdora not afterwards be discharged, and another substituted in his place, ed a writ without the consent of the defendant in the suit ; for he has ac- changed quired a right to his name, as security for his costs. conse°iu of * Motions to exchange indorsers of waits have been frequently tl^e defend overruled at nisi prius ; and it is by no means desirable to in- crease the facility of admitting attornies, who almost necessarily feel a bias in the suits they commence, to become witnesses in such causes. VII. RIGHTS OF. (A) His lien for costs, 1. PiNDER v. Morris. Aug. T. 1806. 3 Caine's N. Y. Rep. p. 165. Held by the Court, that where the defendant has 6ona/?c?e paid To preserve 111 1 ^ • -rr ^ -n i j_- r his lien for the debt and costs to the plaintin, the court will order satisiac- costs ihe at upon the opposite party ; Ryland v. Noakes, 1 Taun. 342. Payment of the costs, previous to the dismission, to the attorney, is indispensible ; Langley v. Stapleton ; Barnes, 40. Entering a plea, or giving notice of bail by a new attorney, without an order of changing the attorney, is irregular ; Perry v. Fisher, 6 East. 549. But the irregularity may be waived; Margeron v. Makilwaine, 2 N. R. 509 ; Ginders v. Moore, I B. & C. 654. And the court will grant an attachment against an attorney for not paying over money to a new attorney, under an order ; Stephenson v. Pow er, 9 Price, 384. A scire facias and a writ of error, being new actions, they may bo 6ued out without leave of the court for changing the attorney ; Batchellor v. Ellis 7 T. R. 337 ; Tipling v. Johnson, 2 B. & P. 357. By the Revised Statutea of New Vol. II. 4 2G ATTORNEY. —Rights of. lorneymustfjQj^ to 1)C cntt;re(] upon the indp'ment, thoiio-h the costs of the give notice . .» c 7 t> to the defeii plaintiff's attorney have not been paid. He has no lien upon '^'*'" them, while in the hands of the defendants, unless he gives no- tice not to pay them over.* Vide Lake v. Ingham, 3 Vermont Rep. 149, where the court held that the notice need not be personal. Any notice to him, which is of a character to obtain credit in ordinary circumstances, that the lien will be insisted upon, is sufficient, and a subsequent payment and settlement would not do away the lien. But the notice does not prevent the parties from abandoning the suit; ' Foot V. Tewksbury, 2 Vermont Rep. 97. 2. Shapley v. Bellows. Aug. T. 1828. 4 N. 11. Rep. 347. S. P. DuNKLEE V. Locke. 13 Ma^s. Rep. p. 525 ; Martin v. Hakks. 15 Johns. N. Y. Rep. 405; Baker v. Cook. 11. Mass. Rep. 236 ; Grant v. Hazeltine, 2 N. Hamp. Rep 54-1 ; 19 J? hns. Re i. Fo .d v. Stuart. The nttor Qj^g Jackson sued the plaintiff and recovered iudfrment ney s right ^ Jo York, vo]. 2. p, 287. it is declared : " When any attorney or solicitor shall die, be removed or suspended, or cease to act as such, the person, for whom he was acting, shall he notified to appoint anotlier attorney or solicitor, in such manner as the court shall direct, at least thirty da^^s before any proceeding shall be had against such person." * The Court will not compel an attorney to grveup any writings in his possession without payment of his roasonnhle demands ; Anon. 12 Mod. 554 ; Peterborough V. Williams, Comb. 43. To give an attorney his J-ien, his warrant siiould iiave beers filed ; Vansandaii, Gent, one. Sic. v. Burt, Geiil. one, &c. 1 D. & R. 168. An attor- ney may detain papcr.s Until the money is paid for drawing them; but ho cannot detain any writings which ^vcre delivered to him on special trust, tor money d lie to him on that busino.s; Lawson v. Dickenson, 8 Mud. 307. And the liim is made subject to the equi- table claims of tlu; parties in the cause ; Schnole v. Noble, et al. 1 Hen. BIk. 23. And, pp.r Bii'ler, J., " though tliis court have said, they v.'iil not interfere on behalf of the attorney, and prevent the plaintiff settling his own cause without first paying the attorney'.^ bill ; yet when the adverse party, against who.Tfj a judgment has been ob- tained, applies to get rid of that judgment, the court will take care that the attorney's bill is satisfied ;" Mitchell v. Oldfield, 4 T. R. 123. And in the K. B. the Court held, a judgment could not be set off" by the defend- ant against the plaintift'^s demand, without satisfying the lien of the plaintitFs at- torney ; ibid. Middletown v. Hill, el al. 1 M. & S. 240. A different rule, however, prevails in the Common Pleas, the lien only extends to the difference after the de- mands between the parties are satisfied ; Hall v. Ody, 2 B. &: P. 28 ; Lomas v. Mel- lor, 5 Moore, 95. So also the attorney has a lien on money awarded, as well as upon a judgment ; Ormerod v. Tate, 1 East. 464. But he has no lien upon interlo- cutory costs; Howell v; H irding, 8 East. 362. An attorney or solicitor may obtain an order to stop the client from receiving money recovered in a suit, till his bill is paid ; Wilkins v. Carmiehael, 1 Doug. !04 So he may give the defendant notice not to pay the plaintiff"; Welsli v. Hole, 1 Doug. 238. Andif tiie defendant's attorney after notice from the plaiutiff"s attorney, not to pay money, act contrary, he will be liable to the plaintiff''s attorney ; Read v. Dupper, 6 T. R. 361. ATTORNEY,— R'gkfs oj. 27 against him : and on the hack of the execution, issued upon the oflienis . . paramoun i judgment, was the following endorsement: toiherifiua itT ^ 1 ^ I • .• J 1 • I J T TT f''" 'he par "1 order the contents 01 t v.s execution to be paia to J. rl. tigsinihe Hubbard, for the purpose of paying his fees, and all expenses of ^"'|-'" '^'"^^^ this suit." JOSEPH JACKSON. SionsSr Shapley recovered judgments against Jackson, and tendered each other, executions upon them to the officer, as a set-ofFto Jackson's ex- ecution against him. The question was whether this assignment to the attorney was valid, and prevented the set-off, and how far the attorney had a i for his advances and fees. Per Cur. Richardson^ C J. It seems to us that a lien in such a case, is founded in as clear justice, as in any other "case whatever. It is reasonable and proper that an attorney, by whose industry and labour, and at w"hose expense a judgment has been obtained for his client, should have an interest in hat judg ent which the lien will regard and protect. There is a general understa •■ g be'ween attornies and their clients, that the former shall retain their fees and disbursements out ?)f the sum that may be recovered, of the opposite party. — And it is not uncommon that attornies commence actions for poor people, and make advances of money, necessary to the prosecu- tion of the suit, upon the credit of the ca -^e. Thus a person in indigent circumstances, is enabled to obtain justice .in ca es, where, without such aid, he would be unable to enforce a just claim. And we have no hesitation in adoptinp- ( e ]ana;uao;e of Lord Kenyan^ on this subject, and saying, "that the convenience, good sense, and justice of the thing require," thit a:"ornies, should have a lien, upon the judgments they obtain for their cli- ents, and that the attorney in this case had a lien upon the judgm.ent which he obtained against Shapley. But the lien does not extend beyond the amount of the fees and disbursements in the cause, in which the judgment against Shapley was obtained. 5. RuMRiLL V. Huntington. June T. 1811. 5 Day's Conn. Rep. p. 163 ; Bacon V. Warner. 1 Root's 349; Williams V. Smith. 2 Root, 464. Error to reverse a decree of the County Court. Butlmsno R-n !•! i. • , TT ■• , ., ^ lionrhritca umrill recovered a judgment against Huntington m the Su-vm-y ihe perior Court. ri£;ii:<)i thud per He being indebted at the same time to Huntington on account sons. 28 ATTORlsEY.— Rights of. of three judgments Huntington gave notice to Bradley, the attorn- ey of Rumrill, that h-e intended to set-ofF his three judgments against RumrilVs judgment against him. Rumrill being insolv- ent, and indebted to Bradly for fees and advances, assigned to him the judgment. The County Court-decreed a set-off. Per Cur. Trumhell,J. It is a geiieral principle, that an at- to-rney has a lien for his services and expenses, on the papers and securities of the client, in his hands, of which he may avail him- self in an action of trover ; and that he is answerable to him in account, only for the balance of the avails, when collected. But an attorney has no lien upon a judgment obtained in favor of his client, which can vary or effect the rights of a stranger. No such lien is created, either at common law, or by the principles of chancery. In the present case, Bradley had no lien, which could avail him. As a bona fide creditor, he was in equal equity with Hunt- ington. Nor had he, as yet, any legal interest in the judg- ment and execution. Huntington was accountable to Rumrill only. In a suit in chancery between them, equity would, in that stage, have decreed a- set-off" of their mutual claims. But before any suit was brought, Rumrill assigned the judgment and exe- cution, in discharge of his debt, to Bradley. This assignment transferred to Bradley the legal right to the avails of the execu- tion, and must be conclusive against the claims of any other creditor, unless it was obtained by fraud and collusion. Rum- rill had a right, bylaw, to assign the execution, in satisfaction of a just debt,, to any of his creditors. 4. Castro et ux. v. Bennet, May T. 1807. 2 Johns. N. Y. Rep. p. 295. „, „ W. Morton, in behalf of the plaintiff's, moved for a rule to The Court ' . .„ . . . ^^ wilhiot com compel the attorney of the plaintiffs to proceed m the suit. He ^^|j^g^-°j^ contended that after an attorney had commenced a suit, he cause unless could be compelled to proceed, though he might lose his costs. paysTlS He cited 1 Bac. Abr, 187 ; 1 Salk. 87 ; 6 Mod. 86 ; 12 Mod. 251 costs. Yi appeared that considerable costs had accrued in the progress of the suit, and that the attorney for the plaintiff" refused to proceed until he was paid the amount. Per Cur. The conduct of the attorney is justifiable. He is not bound to go on and expend money for his client, without be- ing secured. The cases cited "show, merely, that the Court will compel an attorney to do his duty ; but it is not his duty to ex- pend money for his client without being reimbursed. Rule refused. ATTORNEY.— Rights of. 29 5. Warner and Post v. Griswold. May T. 1832. 8 Wend. N. Y. Rep. p. 665. The suit was brouo-ht to recover the amount of a taxed bill of ^"omies o . . P fii^y sue costs by the plaintiffs, as partners in the business of attorneys, jointly for The defendant moved for a nonsuit, on the ground that one ofu°esu]lh!a7 the plaintiffs alone was the attorney of record, and he alone ^een prose . cuted IP l1i6 should have brought the suit. name of one. A nonsuit was granted and the plaintiffs brought a writ of error. Per Cur. A partnership between attornies is admitted to be lawful. Like other partnerships, it may be composed of two or more individuals, and all will be responsible for the acts of each within the scope of the partnership. They constitute but one person in law. If one of two attornies, who are partners, re- ceives money collected for a client, and embezzles or absconds with it, that will form no defence for the other partner. If one should be guilty of extortion, the other would be liable to repay what had been illegally received. If a suit, instituted in the name of one, should be unskilfully conducted, the other would be re- sponsible to the client, in an action for his damages; 7 Cowen, 416 ; 8 id. 258. Both would undoubtedly be liable to the offi- cers of the court, or other officers, for services rendered in suits conducted in the name of the one. Indeed every responsibility which belongs to other partnerships, attaches also to this ; and no reason is perceived why the general rules, by which the course of procedings in such cases is regulated, should not also apply. The statute regulating the fees of attornies does not appear to me to affect the question arising in this case. 6. MooNEY V. Floyd. Dec. T. 1819. 5 Sergt. & Rawle's Pa. Rep. p. 412. Per Cur. Tilghman, C.J. The single question in this caseN" fif i"" is, whether an action can be supported by a gentleman of the services be bar, against his client, for advice and services in the trial of a y^"^' '^'i'^ *^ 1 r -tiT- 111 torney's cause over and above the attorney s fees. Without doubt no such fee. action lies at common law. No principle of law has been more clearly laid down, and there is sufficient evidence of its being one of those principles which was adopted on the settlement of Pennsylvania. We are of opinion the action cannot be supported. 30 ATTORNEY.— RigMs of. (B) Professional confidence. Lynd v. Judd. Feb. T. 1807. 3 Day's Conn. Rep. p. 499. Cannot be On the trial, Dwighi Jor the defendant, offered Mr. Ingersoll to produce as a witness lo prove a paper in hi^ hands. Mr. Ingersoll ob- '^ P^P'^r '^^^ jected to producing the paper. It appeared the paper had been a client in delivered to him, as counsel ia anolher case, by a client, with in- case, structions not to make use of it in court. Per Cur. Mr. Ingersoll cannot be compelled to exhibit it. Vide Heister, assignee of Old v. Davis, 3 Yeates' Rep. p. 4. Where it was held th^tthe coun ;el, or attorney shall not be per- mitted to disclose confidential communications, but may give ev- idjnce of collate. al facts. Bean v. Quimby. Oct. T. 1829. 5 New Hamp. Rep. p. 94. Profession Bean called one Nichols as a witness, who acted as attorney, dinceex ^^^ whosc name was entered on the docket as such, and propos- tendstoanyeJ to enquire as to communications made to him by the defen- person em , . '' ployed to dant in error. causelis P^^ Cur. It is contended on behalf of the plaintiff in error, counsel. tj^j^^ x\iQ privilege of clients to have 'their communications to counsel kept secrets, extends on'y to communications made to professi )naj men, and not to those made to any other description of persons, whom they may choose to employ to manage a cause. But we are inclined to think, that the hnv is not so in this state. The statute of Feb. 17, 1791, enacts "that the plaintiff, or de- fendant in any cause, prosecution, or s^ it, being a citizen of this state, may appear, plead, or defend, in hi^ proper person, or by such other citizen of this state, being of good and reputa- ble character and behaviour, as he may engage and employ, whether the person so employed be admitted as an attorney at law or not." This statute gives in express terms, to every citi- zen of this state, the right to have Lis cause managed by any per- son of good moral character, whom he may see fit to employ ; and we think'this right includes, as a necessary incident, without which it cannot be safely enjoyed, the right to instruct those who maybe thus employed, and to have the trust and confidence thus reposed preserved inviolate in all cases. But while we are dis- posed to give to every citizen the full enjoyment of all his rights in this respect, w^e are not willing to give any counte- nance to those, who, without the necessary qualifications, under- ATTORNEY.— Rights of, 31 take to advise, as counsel, and to commence suits in their neigh- bourhood. It has been supposed that the members of the bar were opposed to the interference of such persons, in such mat- ters, because it might tend to injure the business of the profes- sion. But nothing can be farther from the truth than such a supposition.* 3. Parker v. Carter, et al. March T. 1814. 4 Mumf. Va. Rep. p. 273. Per Cur. Roane, J. This court understands it to be the set- -A^"*^ '^ not • 1 confined to tlea law, that counsel and attornies ought not to be permitted to causes actu give evidence of facts imparted to them, by their clients, when • '^ ^^' acting in their professional character ; that they are considered as identified with their clients, and of necessity, entrusted with their secrets ; which, therefore, without a dangerous breach of confidence, cannot be revealed ; that this obligation of secrecy continues always, and is the privilege of the client and not of the attorney. The court is also of opinion, that this restriction is not con- fined to facts disclosed, ia relation to suits actually depending at the time, but extends to all cases, in which a client applies, as aforesaid, to his counsel or attorney, for his aid in the line of his profession. If the principle was confined to causes actually depending at the time, there would be no safety for a'person consulting counsel as to the expediency of bringing a suit, or of compromising one, which is contemplated to be brought against him. When such suit should be afterwards instituted, all his ■♦• The principle ia tlie text a^^rocs with t'le English law. Confidential communi- .cations of clients, to their nounsol, is the privilege of the clients. The conildence reposed in the counsel, must bepr(\«crved forever ; Wilson v. Rastale, 4 T. R. 753. And cvi'n where the attorney is Jiot a party to the cause be'"ore the court ; Kex v. Withers. 2 Camp. 57B. So also \\iii:re confidenti:;! communications arc made, throiijj!! the medium of an interpreter; Du Barres' Case cited Wilson v. Raslall, 4 T. R. 756. He cannot he examined as to pioposiiions he has been instructed to make; Gainsford v. Grarjimer, 2 Campb. 9. Nor can an attorney be compelled to produce deeds or ))aper.s entrusted to him, by his client, in order to^supporl an indict- ment for foigery against iiim ; The King v. Dixon, 3 Burr. 1687. Nor is an attor- ney obliged to expose his client to be taken in execution after judgment, by inform- ing the plaintiff vvlu-rc he resic'cs ; Hooper v. Harcourt, 1 H. B. 534. A mere gratuitous communication may be disclosed; Cobden v. Kendrick, 4 T. R. 431. And so it may be, where the attorney is not in professional confidence ; Rex v. Watkinson, 2 Stra. 1122. Or where the witness does not ac! in the capacity of an attorney or clerk in court; 2 Petersdorff. 56«. It has been decided that he may be examined as to the time of t!ic execution of a deed ; Ld. Suy's case 10 Mod. 41. Or if the deed be lost to prove the contents of it ; Robson, et al. v. Kemp. 4 East. 235. 32 ATT OR'^EY.— Rights of. disclosures, previously made, with a view to obtain counsel and avoid litigation would be given in evidence against him ! The same necessity exists in both cases ; and there is no prin- ciple, no difference between them. With respect to the persons, who are subject to this restraint, the court is of opinion, that it is confined to the two descriptions of persons before mentioned. As to causes depending in court, a client can only have an inter- est in their services, for they^ alone, will be permitted to repre- sent him ; and, as to counsel or advice obtained in other cases, thpsc are the only safe depositories of a client's interest, under the care our law has taken to confide the functions in question, only to men of probity and legal knowledge. The policy of the law, in the respect last mentioned, would be violated, were any citizen to be permitted to invest ad libitum^ and without necessi- ty, any other citizen, however corrupt or unqualified, with the functions aforesaid. That investiture would also carry with it, the high privilege now in question, which, too, only arises from the necessity men are under to act, in their legal concerns, through skilful and qualified agents. Anon. Aug. T. 1828. 1 Wend. N. Y. Rep. p. 108. Achenthas On a motion to Set aside a default for not pleadinsf where a no right to . „ , . ,. , . controul his Sufficient excuse was offered, entitling the party to be let m on i^he"conduc\ P^y^^^'^^ of tiosts, and where the attorney who had obtained the of a suit, default declined opening it, on the ground that his dteni had in- structed him not to waive the default ; the court observed that such instructions were no excuse to an attorney. The client has no right to controul him in the due and orderly conduct of the suit ; that if the case was of such a nature as that there could be no doubt in the mind of the attorney, that according to the settled rules of practice the default would be opened by the court on the usual terms, it was his duty, when applied to for that purpose, to open the default, any directions of his client to the contrary not- withstanding, and not compel the party to apply to the court for relief. 5. BuDDicuM V. Kirk. Feb. T. 1806. 3 Cranch's U. S. Rep. p. 293. May waive The Bill of Exceptions stated that the deposition of Patrick the irrcffu larityoftak Cavan, was read. That notice was given to the plaintiff's attor- ing a depo jjey, &c. and that he agreed that it might be taken on the day, &c. ATTORNEY.— Liabilities of. 33 Per Cur, MarshalL C. J. Tb,e laws of Virginia are to be re- ^jtio" ™der ' ^ '=' . tno act, of ferred to on the subject of notice. Those laws cio not authorise Assembly notice to an attorney aHaio. The word attorney, in the act of°^^"'S™^* assembly, means attorney in fact. An attorney at law is not com- pellable to receive notice ; but he may consent to receive, or he may waive it, and shall not afterwards be permitted to object the want of it. But this deposition was not taken agreeably to the notice received. The commissioners did not adjourn from day to day, but passed over the intermediate time between the 12th and the 19th of August. This circumstance, however, is not, by the court deemed fatal, under the particular circumstances of this case, though without those circumstances, it might perhaps be so considered. The agreement that the deposition might be taken, whether the at- torney were present or absent, his subsequent examination of the deposition, without objecting to the want of notice, and the death of the witness, were sufficient grounds for the defendant to believe, that the objection would be waived. VIII. LIABILITIES OF. (A) For neglect, action for. 1. Gilbert v. Williams. Sept. T. 1811. 8 Mass. Rep. 51. The plaintiff sent to the defendant a note of a third person, ^s liable if and wished to have the debt secured immediately by an attach-thf ' iw-fu ment. This was about the 1st of March ; on the 15th of the same i'^-;- '■•70ns ' of ins client, month the defendant informed plaintiff that he had seen the per- and a loss son, and if the note was sent to the defendant it would be paid. ^"^"°^* The note was sent. On the second of May after some proposals which had failed, the defendant issued an attachment, which was not served. On the 15th of June two writs were issued by the defendant, and the property of the third person attached, but was sold to satisfy prior attachments, which had been executed a few days before the plaintiff's attachment. The third person was in good credit until the 15th of June. Per Cur. Sedgwick, J. There is no doubt that for any mis- feazance or unreasonable negleci, jf an attorney, whereby his cli- ent suffers a loss, an action may be supported and damages recovered to the amount of that loss. By this I do not mean that an attorney is to be answerable for every error or mistake, and to be punished for it by being charged with the payment of the Vol. II. 5 34 ATT0R}^'S:Y.— Liabilities of. debt, which he "was employed to recover for his clients; but on the contrary, that he shall be protected where he acts with good fain, and to the be.5t of his skill and knowledge. It would be unnecessary in this case, were it practicable, to define precisely the kin.'l of neglect, for which an attorney is responsible to his client. It will be sufficient to decide this case, thai whenever an attorney disobeys the laicful instructicns of his clitnt^ and a loss en- sues.,for that loss the attorney is responsible. Let the claim of the plaintiff in the action before us be tried by this rule.* Gleason & ViELE V. Clark, administrator or Clark. May T. 1828. 9 Cowen's N. Y. Rep. p. 57. S. P. Run- YAN V. Nichols. 11 Johns. Rep. p. 547; Sill v. Rood. 15 Johns. Rep. p. 231 show^nelli Held by the Court, Savage, C. /., that under the general issue genee under in an action by the attorney ao-ainst his client for the costs, he the "'eiierdl .' o ' issue. may show that the attorney conducted the business so negligent- ly that his services were of no benefit to the client. He may show tlie plaintiff never had any cause of action. It is proper under the general issue. If merely to reduce the damages no- tice should be given. 3. Huntington v. RuzvIrill. June T. 1809. 3 Day's Conn. Rep. p. 390. And where Rumrill brought an action of account against Huntington. The irf.llHfl^f*^ declaration charged that he received of Rumrill two notes to IS proved o iheaitor coliect, and had not accounted, &c. nev may show liie Per Cur. An attorney, who reteives a note or* other evidence plain tiffh ad e lei " Tiinpnurt win somrtimes proceed ag;ainstaf'ornies for negligence in a summary debt. "'"y ; P'" '-'■ Yuidon, 4 Burr. 20G0; Russel v. Palmer, 2 Wils. 325. But unless it be a clear caso, it ou^jlitto be left to the jury as to the quanliirn ff damages ; .'bid. An action lin*; ajainst an executrix of an attorney for negligence of her testator for making insufficient enquiries as to the validity of the securil3% upon wliich his cli- ent advanced money \ Wilson v. Tucker, 3 Stark. 154 ; 1 D. & R. N.P. C. 30. So where he undertook to procure the attendance of material witnesses, and in conse- quence of ne-^rlect, tiio plaintiff was nonsuited ; Reeco, el id. v. Rigby, 4 B. & A, 202. In an action against an altorneyfor negligently prepaiing the memorial ofan annuity, whereby the purchaser lost his security, Ld. Elltvbrrcvgh lield that an attorney was not onlj' liable for crassa negligenlia — and that if he mistake where there was a reasonable doubt of tilt! law upon tlie subject, lie is not liable ; Kakie Esq. V. Ciiandie^s, Gent, one, &;c. .3 Campb. 17. Fide Atkeson, ct al. v. Madock, Gent. Peak's .V. P. 162. In all eases whether there has been negligence, or not the onus proband?* that diligence would liave been ineffectual, lies on the defendant ; Bourne v. Diggles,2 C'bitty's P^ep. 311. ATTORNEY. —Liabilities of. 35 of debt, for collection is undoubtedly liable for the debt, if it be lost by his negligence. But the loss of the note, or other ordin- ary evidence of the debt, does not necessarily involve the loss of the debt itself. And in order to charge the attorney with the debt, the inquiry must be, not whether the ordinary evidence of the debt is lost by his negligence, but whether the debt itself is lost. In this case, it appears, that the debt due to Rumrill, and put in the hands of Huntington for collection, was not only se- cured by the endorsement of David Todd, but also, by the liabil- ity of George Todd, to pay the price of (he article, which liad been sold to Rumrill, and for which the note had b&en assigned. Any evidence, therefore, which went to show, that the debt had been paid by George Todd, or remained secured by him, went to show, that the debt was not lost, and was pertinent to the issue before the auditors. The judgment and execution obtained by Rumrill against George Todd, was evidence of this description, and ought to have been admitted by the auditors. We are, therefore, of opinion, that the decision of Ihe count^^ court in rejecting the award of July, 180S, for the reasons stated in the remonstrance, was correct, and ought not to have been set aside by the superior court. 4. RuNYAN V. Nichols. Oct. T. 1814. 11 Johns. N. Y. Rep. p. 609. (548). The court left it undecided, whether in an action by an attor- Q-nery, ney against his client, to recover his fees, the defendant can set ciefeiuldnt up the plaintiff's neo-lio-ence, in conducting the suit as a bar. "f''^'^?-'."P i^ t o o 5 o ^ jj)g plain Such defence, however, must be pleaded, or notice given that it ;i(r'sregli was intended to insist upon it, and the defendant cannot give it^f"arecovT in evidence under the general issue.* ivforliis Vide Templer v. M'Laughlan, 5 B. & P. 136. In cases in many respects analogous, such as suits for work and labour, by builders, a defence like the present has certainly been allowed. * A defendant in a suit for an attorney's bill, cannot contest the Items at tlie trial, but should apply to the court to ha\'e the bill taxed ; ScoU v. Klmerdorf, 12 .Toiins. Rep. 315. The attorney has a lien on a judgment recovered for his costs; and if the defendant, after notice from the attorney, pay the amount of the judgment to the plaintiff, without satisfying the attorney for his costs, such pa3'r!ient is in his own wrong, ajid ho is liable for the costs faxed ; Martin v. Hawks, 15 Johns. 435. After actual notice, the parties have no riglit to settle the attorney's costs, n- r do any act to obstruct his proceeding in the cause to collect them ; Power v. Kent, 1 Cowen's Rop. 172. An attorney, who was ordered to pay the costs of an action, which he had brought without being retained, wa? attiicJied for not pavinir tlieai, and a rule made that unless he paid them in ten days af>.er notice of the rule, ho should be suspended until he paid theai ; Anon. 2 Co wen, 589. 36 ATTORNEY.— Liabilities of. 5. Dearborn v. Dearborn. Nov, T. 1818. 15 Mass. Rep. 316. auoniev" Case for negligence as an attorney, sues out a ^pj^g declaration alleo-ed that ihe plaintiff put in the hands of writ and ° . t^iii nedecis to the defendant, a demand against one Peck, and that the defen- l?I''r°n"'l'®^''dant arrested said Peck, and one Niel Shaw became bail : that lie i£» tin ' ' swerable iudofment was obtained against Peck, and an execution returned forneo-lect. . . r ° * noil est inventus against him, and that the defendant neglected to proceed against the bail, who was then in good credit, whereby the plaintiff lost his debt, &c. It was contended, that the dofendant by virtue of his retainer in the first suit, was under no obligation to sue out process against the bail, which would be a new suit ; and Long v. Billings, 9 Mass. Rep. 479, was cited. Verdict for plaintiff. Per Cur. It is said that the prosecuting a scire facias was the commencement of the suit, which was no part of the duty of the defendant. But it is our opinion, that when an attorney under- takes to collect a debt, he is bound to sue out all process neces- sary to the object. A scire facias againt bail, is not to be con- sidered a new suit. It is a regular step in the collection of the original demand : and the attorney cannot excuse himself for neglecting seasonably to sue it, unless he give notice to his cli- ent, and request specific instructions, where he entertains doubt of its expediency. In the present case, the defendant sued the writ, but neglected to prosecute it. He is answerable to his cli- ent for this negligence. Nor does the failure of the bail furnish a justification for the neglect ; it was not certain that the money might not be obtained, notwithstanding that failure. The jury w^ere of opinion, that the case was not desperate. We are all satisfied with the instructions, under which they returned their verdict ; and judgment must be rendered accordingly 6. Langdon, et al. v. Potter, et al. Sept. T. 1816. 13 Mass. Rep. p. 319. he endorses Debt On a judgment. Plea that the judgment was satisfied, uponanexe It appeared that one Taylor, the attorney of the plaintiffs, up- Cution a, 1*6 ■'■■*■. J * •. A ' X ceiptfora on the execution being levied upon the property of the defend- promissory j^j^^s, received a promissory not, signed by Chapin, from them, ment the ex which he was to endeavour to collect, and in consideration of notsaiisfied which, he Consented that the execution should be returned unsat- isfied. The defendants offered to show that when the note was given, ATTORNEY.— Liahilities of. 37 Chapin was in good credit, but had since failed, and that Tay- lor did not use due diligence in collecting the note, but that the same was lost by his neglect. The Court overuled the evidence. And verdict for the plaintiff. Per Cur. The evidence, which was rejected at the trial, would have had no tendency to prove the issue on the part of the defendants, had it been given to the jury. Mr. Taylor, as the attorney for the plaintiffs on record, had without doubt authority to discharge the defendants from this judgment; but he had no authority to make his clients the bailiffs of the defendants, to col- lect the note of their debtors, and subject them to an action of account by the defendants. But if the plaintiffs themselves had made this report upon the execution, instead of Mr. Taylor, it would not have had the operation contended for, on the part of the defendants. It does not purport to be received in satisfaction of the debt ; but merely to be taken for collection. Another ex- ecution might lawfully have been sued out immediately after this should have been returned; and this shows sufficiently that the judgment was not satisfied. Judgment on the verdict. (B) By the summary process of the court. 1. The People, EX RELAT. Bacon V. Wilson. Feb. T. 1810. 5 Johns. N. Y. Rep. 367. S. P. The People v. Smith. Caine's Rep. 221 ; Starr & Rice v. Vanderheyden. 9 Johns. 253. The defendant havinp; as attornev collected monies of the com Neglecting t> .' or refusing plainant, and omitting or refusing to pay them over, and these to pay over facts being verified by affidavit, the Court on motion ordered "g^"J^/^°j^^ that the defendants show cause, by the first day of the next term, tachment 1 1 111-* will be why an attachment should not issue.* granted. * The summary jurisdiction of the court over attornies, may be further illustrat- ed by the following English auliiorities : Held by the Court, tliat where an attorney received money not in a suit, but un- der a power of attorneys Ihey would compel him to pay the money into court, for the benefit of the parties interested, and on neglect would proceed in a. summary way ; De Woolfe, etal. v. 2 Chitty's Rep. 68 ; and where he had collected effects, and money due an administrator; In re Aitkin, 4 B. & A.47 ; so where he has collected rents as the steward of a manor, and not paid them over ; and when an attorney has undertaken to appear, he must fulfil the engagement, or the court will strike him from the roll; Lorymer v. Hollister, 1 Stra. 693; Hickman v. Waller> Prac. Reg. 293. Even where he engages to appear for an infant ; Stratton v. Burgis, 1 Stra, 114 ; and a verbal engagement is sufficient ; Anon. 2 Chitty's Rep. 38 ' ATTORNEY.— Liabilities of. 2. Staples v. Staples and trustee. May T. 1827. 4 Greenleaf Me. Rep. p. 532. But the mo It was held by the Court, Mellen, C. J., that, where an attor- nev must be demand ney collects money, an action will not lie against him by his di- ed of him. ^j^^^ until the money has been demanded. But it may be attach- ed in his hands, though it was received in bank bills. The case differs from that of a sheriff or other officer, who has collected money on execution, Avho is not liable to the suit of a judgment creditor, or his trustee, upon this kind of process, until after de- mand made, or until the officer has been guilty of some official neglect, by which he has deprived himself of his official protec- tion, and the money has ceased to be in the custody of the law. 3. Anon. May T. 1824. 2 Cowen's N. Y. Rep. p. 589. Andwillbe An attorney, having commenced an action without being re- untirpaid. Gained for that purpose, and having failed in the suit, this court made a rule upon him, that he should pr>y the defendant his costs. These being duly taxed and demanded, but not paid, motion that an attachment issue against the attorney, and that he be denied the jail liberties till the costs be paid, or that^he pay the costs within a given time, or be striken from the roll. Curia. The attachment must take its course. We cannot controul its effect. But we order that the attorney pay these costs in ten days after notice of this rule, or that he be suspend- ed from all practice as an attorney, till the costs be paid. 36. So in flagrant cases of negligence, tlie court will proceed in a'summary way ; Pitt V. Galden, 4 Burr. 5C60. But in ordinary cases the court will not, but will leave the injured party to his remedy ; Barker v. Butler, 2 Biac. 780 ; /nrf Jones, 1 Chitty^s Rep. 651. So they will proceed in a summary wj^y, where the attorney procures a party to be turned out of possession by a fictitious ejectment ; Holders- taff V. Saunders, 6 Mod. 16. So where lie gives notice to tlie jilaintiff, that the de- fendant has surrendered in discharge of his bail, when he has not; Thompson v. Bur- ton, Prac. Reg. 43. Where writings come to an attorney's hands in the way of his business, as an at- torney, the court upon motion will make a rule upon him to deliver them back on paying what isdue him, or that an atlachment i.ssur; Goring v. Bishop, 1 Salk. 87; Doug. 104. But where writings^como to an attorney's hands in any other manner, or on any other account than as attorney, the party must resort to his action ; ibid. Vide Strong V. Howe, 1 Stra. 621 ; Hughes v. Mayre, 3 T. R. 275, where a rule was granted although the attorney received the papers in another character ; Pearson v. Sutton, 5 Taun. 364. ATTORl^EY. —LiahiMes of, 89 4. The People v. Smith. Aug. T. 1805. 3 Caine's N. Y. Rep. p. 221. Pendleton havino-, on a former day, obtained a rule to show^"^ ''"y cause why an attachment should not issue against the defendant, drive the di for appropriating money collected for his client, who was in pris ti^n\o^"coT on, now moved to have it made absolute; and in support of the er them, application, cited Say. 51. 169; 4 Burr, 2060 ; Stra. 621; and 1 Burr, 654. Woods, contra, insisted the roceeding was unwarranted ; that the money was retained for costs, and other demands, and if such a measure was adopted, it would be placing an officer of the court in a worse situation than any other citizen, as he would thus lose the benefit of a trial by jury. Per Cur. There is no doubt of the authority of this court to proceed against attorneys for misbehaviour, in this summary way. The case in Say. 169, is in point. The defendant's con- duct has been so very improper, that we are bound to interfere. We, accordingly, by a special rule direct, that he exhibit to the clerk of the court, in JVew York, within ten days, his counter de- mand for costs, and, if any balance appear due^ on liquidation of the accounts, that he pay it in twenty days, or the attachment issue. Starr, et al. v. Vanderheyden. Aug. T. 1812. Supreme Court New York. Motion for relief against iudgments, entered by confession on The Court , , , X r- .. ^vill look in Donas ana warrants of attorney. to the deal Per Cur. The Court from general principles of policy andlSf^^;^;^" equity, will always look into the dealings between attorney "<^y ''^'"^' di and Client^ and guard the latter trom any undue consequences, s:»ard the resulting from a situation in which he may be supposed to stand ^^"®''* unequal. The Court acknowledge the justness and application of the doctrine laid down by Lord LoxLghhorough in Newman v. Payne; (2 Vesey, Jun. 199.) The judgment obtained by an at- torney from his client by confession, must only stand as a secu- rity, for what is actually due. In order to enforce this princi- ple, without intending any censure upon the attorneys in this case, the court direct the following rule : "That it be referred to the clerk of this court, to inquire into the consideration of the bond on which judgment has been entered, on warrant of at- torney ; and that the plaintiff, on such inquiry, shall adduce 40 ATTOR^sEY.— Liabilities of. proof of the consideration of the notes attached to the bonds, and for what causes and under what] circumstances, the notes were given and executed by the defendant, or answer himself to such interrogatories as shall be exhibited. It is further ordered that it be referred to the clerk, to tax the plaintiff's bill of costs, in the said causes, to secure the payment, of which the bond and warrant of attorney on which the said judgment was entered, were given ; and that the clerk give notice to the parties of the time and place of his proceedings, under these orders, and that he report thereon to this court, and that in the mean time all far- ther proceedings therein be stayed." 6. The President, &c. of the Bank of Chenango v. Root, et AL. Feb. T. 1825. 4 Cowen's N. Y. Rep. p. 126, S. P. Gay v. Rogers, et al. 3 Cowen's Rep. p. 368. neymaybe Root, an attorney, was sued with another by capias, and the treated as a plaintiff proceeded to iudgment against him, as a common person, common per ^ '■ . . , i i , rr d tt i i • son when by filing a declaration in the clerk s office, &c. He had given othersy"^' no notice of appearance. Motion to set aside proceedings. The court said, they were clear, that the defendant, Root, hav- ing given no notice that he would appear and defend the cause, and being joined with others, might be treated as a common per- son. 7. MuNNiKUYsoN V. DoRSETT. Junc T. 1828. 2 Harris & Gill's Md. Rep. p. 374. Must an Per Cur. Dorsey, J. The appearance of an attorney, with- anyimpropout authority, does not per ^e invalidate a judgment. But if loss erinterfer qj. jj^im-y \,q sustained thereby, the attorney must answer it in a ence in the ... r-. . suit. civil action by the party'^injured. 8. MouLTON V. Hubbard. Aug. T. 1810. 6 Johns. N. Y. Rep. , ., p. 331. In a suit a r gainst an at The plaintiff recovered iudg-ment, against the defendant, who torneym . ^ . J&'o 7 theSu IS one of the attornies of this court, for six dollars damages; and So^urt and ^^'^ ^^^ ^^^^^ costs of this court taxcd, and issued an execution a recovery for the amount of the damages and costs. under $25, ... the plaintiff Motion to set aside the execution and subsequent proceedings, costs. Per Cur. Since the statute, sess, 28. c. 93. s. 6. (a) ; hasren- ATTORNEY.— f'or Criminal Conduct, 41 dered attornies liable to be sued before justices of the peace, they are no longer liable to pay costs, in this court, -when the amount recovered is less than 25 dollars ; but, in regard to costs, are in the same situation as every other person. We grant the motion, on payment of the amount recovered ; and on the de- fendant's stipulating not to bring any action for false imprison- ment ; (a) Sess. 36. c. 53. s. 9. 1 R. L. 391. Vide Willetfv. Starr^S Johns. Reo. 123 ; Foster ^ etal. v. Garn- say, 13 Johns. Rep. 465. Britt, et al. v. Van Norden. April T. JSOO. 1 Johns. N. Y. Cas. p. 390. In J\'ovemher last, the defendant's attorney gave notice to the-^^^/o^ir . . . . rec^ular plaintiff's attorney, that special bail was filed in this cause ; and piactice the plaintiffs relying upon the information, and not intending to ^[^'^ J^^^^P^^ object to the bail, proceeded to enter up judgment in January ney to pay term last ; but afterwards discovered that special bail was not filed until the 24th of January. Motion for the plaintiffs, that the bail-piece filed in January, be considered as filed on the first day of November preceding. Per Cur. This irregularity in practice is not to be coun te- nanced. Let the plaintiff take his rule, with costs, to be paid by the attorney for the defenJant. Vide the People v. Bradt, 6 Johns. Rep. 319. (C) For criminal conduct. 1. State v. Holding. May T. 1821. 1. M'Cord's S. Ca. Rep. 379. The defendant, an attorney, convicted of an attempt to suborn An attor .^ . ., ney cimvict a Witness to eommit perjury. ed of an at The Court, Richardson^ J., after an examination of their powder g^,3n^a to strike the accused from their roll, in which they remark, the wimess will power to strike an attorney from the roll is unquestionable,* re-f,omihe rtU. * The court will order an attorney to be striken from the roil, when he has been improperly admitted ; ex parle, Hill hall be guilty of any deceit, mal-practice, ormisnomcr ; but not until a copy of the charges against him, shall have been delivered to him, by the clerk of the court, in which the proceeflings shall he had, and an opportunity shall have been given to him, of being heard in his. defence. Sec. 25. The removal or suspension of any counsellor, solicitor, or attorney, by the clmncclior, or the supreme court, from their respective conrts, shall operate as a removal or suspension in every court in the slate ; but in every other case, the re- moval or suspeftsion, shall be confined to the court, in which it shall be declared. ATTORNEY. — For criminal conduct, 43 der that a learned and upright bar may be entrusted with the in- terests of the community; is it not equally salutary that they should have the power to withdraw this sanction, when it satis- factorily appears to them from the official misconduct of individ- uals in either grade, and their total want of integrity, that they are no longer worthy of public confidence? It would be strange indeed, if this vigilance should be required, only tpwards those who were passing the threshold of our courts, and that when once admitted, they should bid defiance to restraint, and with im- punity, be guill^y of acts, which would have debarred their en- trance. If the great purposes of justice require this early cau- tion, and careful examination, they still more imperiously de- mand the same watchfulness over those who have been presented to the public, as deserving of their confidence and patronage. — The power thus given to our courts is necessarily given. Its util- ity has been tested and sanctioned by experience. It should be discreetly but fearlessly exercised. Vide LeigJi's case, 1 Mumford^s Rep. 481. Ex PARTE, Levi S. Burr. May. T. 1823. Circuit Court, U. S. District of Columbia ; 1 Wheeler's Crim. Cas. 503. Oranch. C. J. The obiect of the pnc'Ceeding aocainst an attorn- '^'^^"^i'^'^t 1 1 • -p' , 1 , t "^tl^e pro ey for raal-conduct, is to purity the bar, and the utmost power ceedingisto the court can exercise against the party in this proceeding, is toj^^'^^^ strike his name from the roll. The proceedings are not consid- ered in the nature of an attachment, for a contempt, or a crimin- al proceeding, and therefore the clauses in the constitution, re- lating to trial by jury, do not apply. 4. In the matter of Dormenon. July T. I8l0. 1 Martin's Loll. Rep. A rule was entered against Mr. Dormenon, to show cause why facts u'h^ch his name should not be striken from the roll as attorney, and i^^™'*^ '"*^" counsellor at law, on the ground thai he had aided and assisted cSloTn the negroes of St. Domingo, in raassacreinp- the white people, in ''"''^ '^^ 1^^^ ^ X I 5 conn to re i7qQ ^.-.....v.c ■^ ' ^'->' fu-^e ai) ad The Court held, that if they had had evidence of these facts, an'Storney Mr. Darmenon's application for admission would have been re- ^lentTo^"^ fused, and the court now being possessed of it, it was their duty clu^e him af to evclude him. And they made the rule absolute. lion!'^'"'' 44 AUDITA QUERELA. . ^ttOntCW, 3^0b3Cr of. See tit. Power of Attorney. ^ttOniCW, SSl^aiTJtnt of. See tit. Warrant of Attorney. An aitdila ^ttOmtUlCUt. Sec til. Landlord and Tenant. duetto)!. See tits. Sales ; and Contracts. ^uTiUa (Querela. Brooks v. Hunt. Jan. T. 1820. 17' Johns. N. Y. Rep. p. 484. Held by the Court, Keni^ Chancellor., tiiat a writ of error would 9werf'/aTsa not-lie iipon a mere interlocutory order, or proceeding. But if ^^^°|'|!j^''^^1^'' error could be brought, the plaintiff in error has waived all his tainin'g it right to it in this instance, by his subsequent application to the waives ills Supreme Court, Un ^n audita querela. That writ has been grant- right :o a ej to him, and it is a reo;ular suit, in which the plaintiff in error writ of er ' . . '^ ' . ^ , ror. can set up his discharge under the insolvent act. The parties maj' plead, take issue either in lav\r or fact, and a regular judg- ment must be pronounced in the Supreme Court, from which er- ror may be brought to this court. It is not an uncommon thing for a court of law", if the case be difficult or dubious, to refuse to relieve a party after judgment and execution, in a sumir.ary way by motion, and put him to his audita querela. Cases to this • effect were stated by Ld. Holt. And the Supreme Court in 1801, in the case of Wardell v* Eden, cited, 1 Johns. Rep. 531. note. 2. Bracket v. Winslow, et al. March T. 1821. 17 Mass. Rep. p. 153. it lies, al Audita querela^ to be relieved from an execution. An execu- thougiioih tJQj^ issued upon a judgment ao-ainst the plaintiffand one Peters. cr remedies i j o & i niayeiist. Peters paid the sum due upon the execution, and -by the consent of the creditors, it was returned unsatisfied. An alias execution was taken out, upon which the plaintiff was committed to prison in order to compel him to pay a moiety of the judgment. Parker, C J. Our statute, which provides the form of the wn-it of audita querela., refers to the comm3n law for the princi- ples, by which the suit is to be governed ; and by the common law, the writ lies, although another remedy may exist. If a AUDITA QUERELA. 45 man be taken in execution, after the juderaent shall have been satisfied, audita querela is a proper remedy, although trespass might lie against the creditor ; so if, after being committed, he shall pay the judgment, and still be detained by order of the creditor. In these cases, the aggrieved party might be relieved by habeas corpus from his imprisonment. But facts may be in dispute, which it is proper a jury should try; and, therefore, this process is more suitable than a habeas corpus. Moreover in this suit, by our statute, the party may recover damages for his im- prisonment ; and thus in one suit obtain his liberty, and his dam- ages for the violation of it ; instead of being obliged to resort to his action of trespass, after the proceedings upon the habeas corpus shall have been determined. 3. Baker v. The Judges or the Ulster Co.-\imon Pi.eas. Feb. T. 1809. 4 Johns. N. Y. Rep. p. 191. Motion for a rule to s'how cause why a 'mandamus should not ^Y''""'! 1-1 1 1111- ^^"cie the issue against the judges, to vacate a rule granted by them, dis- defendant charging an insolvent from a ca. sa. portunnT Per Cur. As the judgment was contemporaneous with the to plead his discharge, under the insolvent act, the defendant had no oppor- ^nde',- an in tunity to plead his discharge ; 2 Caine, 380 ; 1 Johns. Cas. 133. solvent act. He might have sought relief by audita querela ; but it is usual to grant the same relief on motion, and the rule of the court below was properly granted. Rule refused. But if the ground of the application be a release, payment, or other matter of fact, it is reasonable to put the party to his audi- ta querela^ because the plaintitF may deny it ; and if he deny it, the court v^-ill not relieve upon motion. Vide Wardell v. Eden, 2 Johns. Cas. 262. supra. 4. Marvin v. Wilkixs. Jan. T. 1826. 1 Aiken's Vt. Rep. p. 107. Audita querela, to set aside a iudp-ment and an execution which ^^'".^'V^P . . . . .on a juog had been obtained against the plaintiff, by the defendant, during mon( obtain the plaintiff 's absence from the state, and without notice. It ^^J^^' '""'' was contended that tliis was not the proper remedy, it ought to have been by a writ of review. Per Cur. Hutchinson., ,J. A writ of audita querela will be sustained, and is the proper remedy, where a judgment of a jus- tice of the peace has been obtained, without notice, the defend- ant being out of the state at the time of commencing the suit. Judgment set aside with costs. 46 AUDITA QUERELA. 5. LoTEJOY V. Webber. May T. 1813. 10 Mass. Rep. 105. S. P. Brackett v. Winslow. 17. Mass. Rep. p. 158. Is in the na ,qudita ouerula. lure of a bill ^ in ec^uity, Seioall, J. Plaintiff demurs, that the matter alleged as the current cause of Complaint might have been pleaded in bar. remediLs'^^ It is rot correct to say that an audita querela is to be sustain- ed only where there is no other remedy. It is a concurrent reme- dy with others; and in cases where redress may be had by sum- mary proceedings on motion, the party is sometimes put to his audita querela^ because material facts are controverted, which the court will not undertake to decide. The statute which di- rects the forms of proceeding in audita gMere^a, has left the ques- tion of the cases, in which it is a suitable remedy, to be deter- mined by rules and precedents at common law. The remedy is said to be in the nature of a bill in equiiy. An allegation of fraud and deceit, seems to be essential ;"and the case supposed? must be one where legal process has been abused, and injurious- ly employed, for purposes of fraud and oppression. — But allega- tions of abuse are not to be heard as a ground of complaint, where the party complaining has already had a legal opportuni- ty of defence,; or when the injury, if any has been sustained, is to be attributed to his own neglect; for otherwise legal proceed- ings would be endless. It is a rule therefore, that an audita querela does not lie, where the party has had time and opportuni- ty to take advantage of the matter which discharges him, and has neglected it. 6. Dodge v. Hubell. Jan. T. 1829. 1 Vt. Rep. p. 491. S. P. Weeks v. Lawrence. 1 Vt. Rep. p. 433. Will not lie Held by the Court, Hutchinson., J. 1\\7ii audita querela WiW wriiof error not lie where a lorit of error is the proper remedy, though such er railed"'^ writ is taken away by statute. Complainant must resort to chan- cery. 7. Eddy v. Cochran. Feb. T. 1826. 1 Aiken's Vt. Rep. p. 389. Relief will Per Cur. A parly appellant, against whom an affirmance of fo^ro'b the judgment has been obtained by the appellee, without notice, tanmiga ^nd in violation of an ao-reement to arbitrate the matter, and not judgment in -, ■,?■, i- i- 71 1 u violation of Carry up the appeal, will be relieved on audita querela, though he ment.'^^ do not aver in his complaint, that he had a good defence to the original action AUDITA QUERELA. 47 Little v. Cook. March T. 1826. 1 Aiken's Vt. Rep. p. 363. Audita querela. It appeared the defendant had recovered judg- Where a . -.- • -1 1 . 1 r J- • 1 r-ai'ty com ment against Little, who the next term moved tor a new trial p'ainsof the 1 • 1 I • 1 " ■ proceedings which was denied. of ihe Court It was contended for the ('efendant, that audita querela was nota^^'i"-* of er ' ^ ror, and not the proper remedy, but a writ of error. an audita Per Cur, HuthinsoJi, J. Whenever the complaint is, that ^j!^* p..op„^. the court did wrong, the party complaining must procure the i"'^"^''<^y- facts to appear of record, either of course, or by a bill of excep- tions, and bring his writ of error. This is not the proper remedy. 9. Stamford y. Barry adm'x, &c. Dec. T. 1825. Supreme Court Vermont. Held by the Court, Prentiss, J., that although an audita oMerc-Proceed •' ^ ... iijiTS under la is authorised, and the form of the writ given, by statute, yetitmust.be the proceedings under it, and in what particular cases it will li*?5 to*the^prfn must be determined by the common law ; and where the injury, ciples of the , . , , , . , ,. -1 i 1 .. .1 2. '■) common of \vhich the party complains, can be attributed to the party s^aw. neglect, he cannot have the benefit of the writ. 10. BowxE, et al. v. Joy. Aug. T. 1812. 9 Johns. N. Y. Rep. 221. S. P. Little v. The Newburyport Bank. 14 Mass. Rep. p. 443. Per Cur. If two suits should proceed pari j^assu to judgment Where two and execution, a satisfaction of either judgment might be shown ceed t^o^xe upon audita querela^ oTotherwise, in discharge of the other. cution, saiis rr-j c- 1 '■ . faction of Vide Smock v. Dade, 5 Rand. 639. Where it was held that one may be the audita querela^ to relieve a defendant from an execution, where ®^°^^" ^ ^ the matter of discharge has been subsequent to the judgment, is an obsolete remedy, and has been substituted in the modern prac- tice by motion. 11. Waddington, et al. v. Vredexbergh. April T. 1801. 2 Johns. N. Y. Cas. p. 227. Ax^ audita ^ - querela quia Per Cur. Radcliffe. J. A feoffee, or purchaser of lands sub- *^''"^'^^" , . . "A/ ' 'A not be sued, ject to a judgment, cannot have an audita querela^ quia timet^ but out by a is entitled to sue out this writ, only after execution issued. So a ^nandrun feoffee, or purchaser of part of the land, cannot have it till after ^'1 !»fterexo execution against him, although the execution be issued against edl^*^"'^^" 48 AUTERFOIS ACQUIT. the residue of the lands of the original debtor ; 3 Viner, 321. 13. pi, 1, 2, 3, 4. ]Icnce the assignees, in the present case, view- ed in the light of purchasers, if they were er.titled to this writ, could not bring it till after the expiration of six months, to which time the injunction was extended, and till after the execution issued. 1. The People v. Barret & Ward. Feb. T. 1S06.1 Johns. N. Y. Rep. 66. Auterfois Conspiracy. The defendants were brought to trial in June, noUjep?"i 1804. When a juror was withdrawn without the consent of the fciive'lf^ flefendants. At a subsequent day the defendants were tned and dicuiient. found guilty, on the same indictment. Upon submitting the case to this court, they decided, the juror was improperly withdrawn by the oyer & terminer on the first -trial. The defendants were afjain indicted for the same offence, to which they pleaded autcrfQis acquit^ and the district attorney re- plied nul tiel record. Tompkins and Livingston^ Js. decided, that the plea constituted a good bar to the second indictment. But, by the Court, Kent., C. J. The first question that arises on this case, is, whether the first indictment was erroneous, so that a good judgment could have been given against the defendants, if they had been convicted ? The indictment does not contain a ve- ■ nue in that part of it, which avers that the defendant, Barret, made a fraudulent pretence, in pursuance of the conspiracy,»pre- viously, and at another day formed. This omission, it appears to me, is an error. The specific pretences by which the fraud was to be effected, are not laid as having been agreed upon, at the time of the conspiracy. The next question is, whether the de- fendants can lawfully plead an acquital, upon an erroneous in- dictment, in bar of a new prosecution for the same offence. I am satisfied therefore, that the law is not nov/ to be questioned, that il the indictment be defective, so that no good judgment could have been given upon it, an acquittal upon such an indictment, is no bar. 2. ^, . ^ The People v. Casborus. Aug. T. 1816. 13 Johns. N. Y. Rep Nor can he ^ * where the 351. S. P. People V. Barret & Ward. 1 Jchns. R. 66. anfsted. The defendant was indicted at the general sessions for steal- AUTERFOIS ACQUIT. 49 ing certain promissory notes. Plea in bar, that at the preced- ing term of the general sessions, &c., he was indicted ^for felo- ny, and was tried and convicted by the jury, and that on motion in arrest of judgment he was discharged from the indictment. To this plea the district attorney demurred ; and at the court of oyer and terminer, the plea in bar was overruled, and he was afterwards tried for the felony, and convicted. The court of general sessions arrested the judgment on the first indictment, on the ground of its being defective, and the indictment on which he was convicted was precisely similar to the first. Per Cur. Spencer, J. The effect of arresting a judgment, is the same as quashing an indictment ; the latter happens before trial, the former after ; and in this case, it appears to me, that as - no writ of error could be brought upon the decision of the court of sessions arresting the judgment, that proceeding is no bar to any other, for the same matter. I am of opinion that the plea of auterfois acquit, was properly overruled, and such is the opinion of the court. The People v. Goodwin. Aug. T. 1820. 18 Johns. N. Y. Rep. p. 187. S. P. Com'th V. CuNiViNGHAN. 13 Mass. T. Rep. p. 245. ♦ The prisoner was indicted for manslaughter. where^h'e Per Cur. Spencer, J. The plea of a former acquittal, Judge T ^""^[r^^^ Blackstone says, 4 Com. 335. is granted on this universal maxim convicted, of the common law of England, that no man is to be brought into jeopardy of life more than once for the same offence ; and since, he says, it is allowed as a consequence, that where a man is once fairly found not guilty, upon an indictment, in an other prosecution before any court, having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime. The plea of a former conviction depends upon the same principle, that no man ought twice to be brought in danger for the same crime. To render the plea of a former acquittal a bar, it must be a legal acquittal, by judgment upon trial for substantially the same offence, by a verdict of a- pettit jury ; 1 Chitty C L. 372. Vol. II. 7 50 AUTERFOIS CONVICT. 1. Pennsylvania v. Huffman. Addison's Rep. p. 140. Auterfois The defendant was indicted for forging the following receipt : not b* pica ffipruary 4th, 1793. Than received of 'John Huffman, fifty ^f-'ii.'!.!!? '" pushel of wheat for the use of Hujih Prison. I say received, ^^•i'^,- ^^'"^ . ROBERT LURKY. verdicl van ed from the The receipt stated in tlie indictment, stated the person defraud- former in . diciment. ed to be Hugh Brison, the receipt given in evidence, stated it to he for the use of Hugh Prison. The jury found the prisoner guilty. Motion in arrest of judgment on the variance between the indictment and verdict. The prosecuting attorney admitted the defect to be fatal. A new indictment Avas preferred, which stated the receipt to be for the use of Hugh Prison. To this in- dictment the prisoner pleaded auterfois convict. Fcr Cur. On the merits Huffman has .been convicted of a forgery, thougli not the forgery stated in the indictment, on w'hich he v.'c'.s tried. On the former indictment and verdict, no judg- ment ocu'd be given, because the verdict did not find the offence laid in the indictment. The error is apparent on the record. And to say now, this is an indictment for the same offence, would be in fact saying, that Brison and Prison are the same; and would be contradictory to the principal, on which he formerly escaped, that they are different. This plea cannot therefore, avail the defendant. 2. CoMMONVv'EALTii V. GoDARD. Oct. T. I8l6. 13 Mass. Rep. 455. But may, Assault and battery. Plea, a former conviction. Demurrer, 1101121) f\p '^^-^' i'"C"rd of conviction stated that the defendant, being pears be brought before the justice, 'pleaded not guilt y. And after full fore the - . . • *^ •' . court ihat hearing, it appeared he v.as guilty, and thereupon the justice or- hasbeen"*^'^*^^^^'^^ him to recognize for his appearance at the next term of the convicied court. — That then he pleaded guilty, and that the justice then for the same . ^ o j ■> j offence. sentenced him as the law directs. Per Cur. Parker, C. J. The [dea ought to have averred the identity of the defendant, with the person tried and convicted be- fore the juslice ; and it ought to have set forth more specially l;.f. jnr-^fiiclion of the justice and the proceedings before him. i -ss we think 6y this- record, enough appears before us, to :• : .. ■ .;;:t the offence, of whicV the defendant is now indicted, h the sameF or which lie has be-n tried and* convicted. And in BAIL. 01 R-plea of auferfois acquit, ox convict, it is not n^ce'SiJary to plead over to the oflence. 3. State v. Damon. Feb. T. 1803. 2 Tyler's Vt. Ren. p. 3S7. Assault and battery on one Doly. The prison •' ■ c: may Plea, auterfois convict in bar. The plea stated that in "".n af~ j !> ad « fm- fray, he, the defendant, did wound the said Doty, and one Fred- ,j',^„ t„'ap rick Miller, and that he had been lefrally convicted of tlie as- ' ^'■<^^'^^"^ sault and battery in the said Miller. i i;.' ..-., Per Cur. It appears that the defendant Avounded two persons i-i.a jjeen in the same affrav, at the same instant of time, and with the '^'^""^'"^'^^'^l "^ ■' ' _ ' an assault same f-troke. On a regular complaint made, he iias been con-on A„\vhc!i victcd before a court of competent jurisdiction, for assaultine"? J-',,c2'^,['),p beatinjy and woundinp; Frederick Miller, one of tb.ose persons. P^'^'""'^ '''® He stands, mdicteil ior assau'ung, beaung and wounding by one Elias Doty, the other of those persons; arid the defendant pleads '^^'^''^'" in bar the former conviction, wdiich he allefies to have been for the same offence. The only question is, whether the defendant has been already legally convicted of the oiTence charged in, the indictment? Uf this there can be no doubt; for it is apparent on the record, that the assault and battery charged -in the indict- ment, and that of wdiich he was convicted, were at the same place and in the same affray, and the wounds made by the same instrument and by the same stroke. 'J'liis is not a ques- tion between either of the persons injured, by the assault and battery, and their assailant ; redress hns been or may be o!)tained by them by private actions; but it is a question betvreen the government and its subject, and the Court are clearly of opinion, that the indictment cannot be sustained. I. BAIL TO THE SHERIFF. (A) When the sheriff is, or is not bound to take BAiL, p. 5.3. * Its nature is that of a substitule for imprisonment, embracinjr il,e two advan- tages of securing tlie person williin (!ic reacli of law, and pcimitlinf'- a reasoniblo re- laxation of necessary restraint upon personal liberty. The mode of tbus securing the person, and the cxtr nt to which rcla.;a;ion is al- lowed in the United Slates of America, are as follows: 1st. One or m .re individuals undertake the rc-pansibiiity of ri1h;>r producing, in open court, the body of the condemned, or of beincr made liable to pay whatever damages liie court shall award. It is done by enteriog into a written obligation 52 BAIL. (B) Of taking insufficient or excessive bail, p. 57. (C) Of the nature and form of the bail bond, p. 58. (D) Forfeiture and assignment of, p. 62. (E) Action on the bail bond, p. 64. (a) Of staying proceedings on the hail bond, p. 66. (b) Of setting aside proceedings on, p 67. (c) Waivi?ig proceedings on, p. 68. II. BAIL TO THE ACTION. (A) General nature of, p. 68, (B) Who may, or may not be, p. 69. (C) Putting in and notice of, p. 71. (D) Justifying bail, p. 73. (E) Excepting to, p. 74. (F) Adding bail, p. 77. (G) Waiver of bail, p. 78. (H) Liability of bail, p. 78. ( I ) Staying proceedings against, p. 86. (J) Proceedings AGAINST, p. 86. under seal, called a bail bond, conditioned for the defendant's appearance on the re- turn of the process. This obligation is satisfied by putting in special bail, or bail to the action, 2ndly. 'Where bail is, after execution perfected in civil actions, the prisoner is per- mitted to rango only within certain limits, defined by the legislature. On the first arrest, the object of bail being appearance in court to plead ; and on such appear- ance, the object of bail being, that the body shall be forthcoming to receive execu- tion, freedom of the world is given, subject to a surrender at any time into the cus- tody of the court's executive, whether the surrender is owing to the mere capricious choice of the bail, or the tirn<> is come for an appearance to plead, or to suffer exe- cution. There is a great diversity in the mode of proceeding in the several states of the union, upon this subject. The rules and practice being arbitrary, and made up partly of the forms and practice of the courts of Great Britain, and partly of local regulations. The practice, consequently , is almost as various as the courts in which the proceedings take place. There should be nothing but the bond, (which ought to be considered as appear- ance,) and that should lay dormant, until a judgment against the principal. After which, a proceeding against tite bail, of a summary and simple kind, by scire facias, or summons, might take place, and the bail in the bond be then authorised to sur- render, within a given time after service. As to special bail, justifications. Sic. they should be done with : the officer ought to take it at his peril, liable, if he refuse it without a just cause, to the party grieved ; and on the other hand to stand excused* or not, in regard to the insufficiency of the the bail,'in a'future'action by', the party grieved. In such action, if ever brought, the question would simply be, whether he acted bona fide; or the officer might be authorised himself, on taking the bail bond, if he doubted the bail offered, or would indemnify himself against any future action, to take the justification of the bail on the back of the bond. Vide Griffith's Law Reg. vo!. 4. p. 858. BAIL.— ro the Sheriff 53 (K) Discharge of. (a) By bankruptcy, ij'C. p. 89., (h) By giving time^ p. 92. (c) By not declaring in time^ p. 94. (d) By adding new counts, p. 94. (e) By variance, p. 94. (f) By death, privilege, ^x. p. 95. (g) By proceeding against principal, p. 99. (h) By surrender of principal, p. 101. (L) Rights of bail against the principal and EACH other, p. 108» (M) Of bail in error, p. 112. (N) Or bail in criminal cases, p. 113. I. BAIL TO THE SHERIFF. (A) When the sheriff is, or is not bound to take bail.* 1. Lambert, et al. v. Moore. Feb. T. 1822. 1 Halst. N. J. Rep. p. 131. Per Cur. Ford. J. The plaintiff arrested the defendant and Bail cannot held him to bail, in Pennsylvania. After judgment was rendered g^on^^^jf^ against him in that state, the bail became insolvent. The defen-ment, on dant is now arrested in this state, in an action brought upon that j]gfgj^(j^,-,j iudgment, and he moves to be discharged on common bail. It is ^?s before *^ '^IVCll 03.11. clearly a settled rule, that bail shall not be required to an action'' of debt on a judgment, if tlie defendant gave bail to the former suit. And even if the bail have become insolvent, it has never been held a sufficient reason to make an exception tjo the rule. Such is the law that governs this subject where the judgment is .* The sheriff may take bail on an attachment, issuing out of a court of common law for a contempt ; Phelps v. Barret, 4 Price, 23 ; Morris v. Haywood, 2 Marsh, 280. So on an attachment for the non payment of costs, ibid.; Lewis v, Morland, 2 B.& A. 56 ; Rex v. Daws, 1 Ld. Raym. 722. So also the sheriff may take bail on an attachment out of Chancery; Burton v. Law, Sty. 212 ; Lawson v. Haddock, 2 Vent. 228 ; Say v. Ellis, 2 Blk. 955 ; Studd v . Acton, 1 fl. Bl. 468. But an action will not lie against him for tefusing it; 1 H. Bl. 468. If, however, the sheriff takes bail, an action may be brought on the bail bond in his own name; Morris v. Haywood, 2 Marshall, 280. The sheriff cannot take a bail-bond for a party's ap- pearance on a criminal charge ; Bengough v. Rossitcr, 4 T. R. 505. And where the sheriff takes insufficient bail, an action will not lie against him, the plaintiff 's remedy being by attachment ; Ellis v.Yarborough, 1 Mod, 127 ; Grovenor v. Soame, 6 Mod. 122. ^4 BAIL.— To thz Sheriff. rendered in this state,'bet\veen our own citi.-ens. We give full faith and credit, to this record from Pennsylvania^ and allow it to have all the validity of a record in our own state ; but there is no reason for allowing it greater efficdcy, or eraenuing broader privileges to the plaintiff, or laying heavier obligations on the defendant, than the rules of law provide for our own citizens. Indeed, the rule is the same. See Tidd's Prac. 186 ; Say's Rep. 160 ; 7 Term Rep. 407. 470 ; 14 Johns. 346. Vide Hatcher v. Lewis, 4 Rand. 152. Let the defendant be discharged on common bail. Jones v. Kelly. March T. 1821. 17 Mass. R^p. p. 117. Bail may be Action' for false imprisonment, bail $3C00. for any a Per Car. Bail cannot generally be required in actions for mo:"ii in ac , t-> ^ i ^i i r ^i i i • • i lions of tort, mere torts, cut by the law ot ihe commonwealth, it is other- Init when ^yjgg ^nd parties complaining of wrongs of any kind, may al- cxcessive . r fc o j ■> j the court lefTC their daraasxcs, and demand sureties to any amount. When '11 ' f . O ' .J pose.'" ^' excessive bail is demanded, it is a proper^ case for the interposi- tion of this court. In the present case, v/ithout giving any opinion of the smn, which the plaintiff may eventually recover in the action, v.-e think it unreasonable that the defendant should be held for so large an amount. 3. Davis v. PvIitchell. Fall T. 1811. 1 Martin's Lou. Rep. 117. Per Our. All the proceeilmgs having been staid against the wlio^o'otains defendant, his creditors summoned by advertisement, to meet at iiir.ec.in ^^^e notary's office — time siven— and the creditors called again iiol be lieicl •' ' i • ' c i t i 10 bail for to show cause against the homologation of the proceedings, and denTdcU ^^^^ homologation fairly obtained, it is, perhaps, irregular to pro- ceed for a debt contracted before the call of the creditors. It is not for the court, kt present, to say whether the homologation by any, if any, by vchat, means be avoideil ; but sureiy, while it stands in force, it must afford protection against all anterior debts ai least, so far as to protect the person in the mean time. 4. Pevrice v. Crothwarte, et al. May T. 1822. 11 Martin'3 Lou. Fep. p. 557.* Nor rp'^n a The affidavit averred the defendant was j'lstly indebted to the SSt""" ^^ plaintiff in the sum of $iCO, as he believed. Per Cur, Porter^ J. The parish judge did not err, when he BAIL. — When the Sheriff must take hail. 55 decided, that the affidavit to hold to bail, in this case, was insuffi- cient. Swearing that the derendnnt owed the plaintiff as he be- lieves, is not that declaration, which the law requires — it should be positive,' 5. Wekks v. Trasx. Spring T. 1810. 1 Martin's Lou. Rep. 117. . The plaintiff's affidavit stated, that the account was just and ^^^J^^g'^'J..^ true, and that no pa;t of it was paid, " exce;t so far as the defen-yAr,cU- dant might have an accouvt against himfcr gcods furnished.''^ pm-ticuiar Motion to dicharge the bail, on the insufficiency of the affi-surndue. davit. Per Cur. Martl'i^ J. The affidavit furnishes no datum to as- certain the amount due. It does not appear that any balance will be found against the defendant. 6. Whetton v. Townsend. Fall T. iSiO. 1 Martin's Lou. Rep. p. ISS. The plain' iff made an affidavit, on which the order of arrest Nor upon was founded, dated the 7th of February, stating that the defen- 'before the dant was indebted on a note, dated the 13th of February. S.''^''^ Per Cur. The order must be rescinded. The oath was made^ seven days before the note Vv'as payable. 7. Norton v. Barnum. Jan. T, 1823. 20 Johns. N. Y. Rep. 337. Libel. Motion that the order of the judge, directing the tie- ;^g^,'JPPj,\f fendant to be held to bail, be vacated. The affidavit being insuf-fidavit lo c ■ . 1 4 • re , -^ /v I i'^-'tl to bait facient, a supplementary atndavit VN'as now oliered. caniiot be Per Cur. The cases of Clason v. Gould, 2 Caine's Rep. 47 ; '•*^'='''''*''^- and Van Vachten v. Hopkins, 2 Johns. Rep. 293 ; fully decide, that the affidavit, on which the judge granted the order, to hold to bail is entirely defective. It follows, that the defendant had been improperly held to bail, 'j'he affidavit now offered by the plaintiff, cannot be received. According to the piactice of the court of K. B., in England^ a supplemental affidavit, for the pur- pose of curing a defect in the original affirlavit, is not admissi- ble ; Moiling v. Buckholtz, 2 Maule & Selwyn,^563. If a de- fault has been entered on an imperfect affidavit, it will be set aside, notwithstanding the facts might warrant the entry of a default. Besides, an affidavit made novv, cannot retrospect, so as to authorize holding the defendant to bail, upon a defective affidavil. Motion granted. 56 BAIL.— ro the Sheriff. Morton v. Heralt, et al. Spring T. 1808. Harding's Ky. Rep. p. 203. Andexcep Held by the Court, that exceptions to an affidavit to hold to tioiis to the , ., sufficiency bail, must be made, at the first term after giving appearance bail, jftmusS^^ is too late after special bail is given, made the first term af n ter apjiear ancebaii. TuRCAs V. RoGERs. June T. 1824. 14 Martin's Lou. Rep. p. 655. Per Cur. Matthews^ J. A bail bond given by a person held to bail, on an affidavit, in which there are some inaccuracies will will not VI j-^oj; ijg ggt aside, if the affidavit is otherwise sufficiently certain and explicit. Trifling in accuracies 10. . Brookfield v. Jones. May T. 1826. 3 Halst. N. J. Rep p. 311. S. P. Saul v. Ailier. 1 Martin's Lou. Rep. p. 21. On a penal Capias for penalties under the act entitled " an act to prevent order for ^^'^^ unlawful waste of timber in this state ;" Rev. Laws, 700. bail IS re The question was, whether the defendant could be held to bail quned, un '■ less the Stat on a penal statute. utc clil'GCtS it. The court quashed the w^rit, because if bail can ever be re- quired on a penal statute, where not expressly allowed by the statute, on which point the court did not intimate an opinion, the plaintiff to be entitled to bail, must have an order of the court, or judge, unless the statute otherwise expressly provide. Vide Champion v. Pierce, 6 Halst. 196, where the court held, that bail might be demanded in an action to recover penalties un- der the act of November, 1822, for the regulation of fisheries in the river Delaware, the act providing, that the action to recover the penalties, may be commenced by capias., or summons. 11. Probable Leonard v. Caskin. June T. 1799. Bee's S. Ca. Rep. p. 146, cause must Held by the Court, that probable cause, on oath, must be set Jjus°,Yyij_ forth to justify the court in holding the defendant to special bail, under the act of Congress of the 26th of February, 1795, in re- lation to the prosecution of suits for the recovery of penalties. BAIL. — Taking insufficient hail. 57 12. Coward v. Bohun. Oct. T. 1804. 1 Har. & Johns. Md. Rep. p. 538. Debt upon an appeal bond, and an affidavit to bail. Stefaf* The court was moved that the defendant might appear with- condition of a bond in out bail. Maryland. Per Cur. Chase., C. J. There is no rule of this court, that the defendant may appear without bail, in an action on a bond with a collateral condition. The practice is so. But here is an affidavit. Bail must be given. (B) Taking insufficient bail. 1. Gerrish v. Edson. Sept. T. 1817. 1 New Hamp. Rep. p. 82. S. P. Sparhawk v. Bartlett. 2 Mass. Rep. p. 188; Long v. Rillings. 9 Mass. Rep. p. 479. Case asainst the defendant for taking insufficient bail. Ashenff o " who know The iudgre instructed the iury, that if they believed the bail '"gly takes . . J J ^ ^J insufficient to have been insufficient, when taken, and this fact known to the bail is liable defendant, they ought to assess damages to the amount of the'°^^®.^- ^ J o t> mount of judgment against the bail. Verdict for plaintiff. Motion for a the plain new trial, on the ground of misdirection of the judge, as to the mcnt. rule of assessing damages. Per Cur. Woodbury^ J. The verdict of a jury has settled the fact, that the defendant knowingly violated his duty in taking insufficient bail. For the injury resulting from that w^rong, the plaintiff has instituted the present action on the case ; in which most unquestionably, he is entitled to recover all the damages produced by the defendant's misconduct. The amount of that damage is the only dispute; and though this was, as questions of this kind always must be, determined by a jury, yet, the court possessed, and exercised the authority to give them directions on the relevancy and competency of the testimony, to diminish, or increase the damage. But the defendant contends that these directions should have been, that the poverty of the original debtor, rendered the damage merely nominal, as the plaintiff has lost only the value of his claim against said debtor. We appre- hend, however, that a consideration of all the circumstances in this case — the form of the action — character of the defendant's conduct — the nature and time of the injury to the plaintiff, will Vol. II 8 58 BAIL.— To the Sheriff. demonstrate, that the rule of damage adopted at the trial is more appro})riate. Vide 2 Bay, 173 ; 1 Tijlcr, 314. 2. The People v. Stevens. Jan. T. 1812. 9 Johns. N. Y. Rep. p. 72. •R tnot Held by the Court, that ifbailbeput in to the action, the insuffi- wherc spe ciency of the bail to the sherilT cannot authorise the plaintiff put in. to proceed against him. By filing a declaration in chief, the plaintiff's attorney waived the sufnciency of the bail. (C) Or THE NATURE AND FORM OF THE BAIL BOND.* 1. Hale v. Russ- Oct. T. 18-21. 1 Greenleaf 's Me. Rep. p. 334. S P; Bean v. Parker. 17 Mass. Rep. 591. Scire facias against the defendant as bail. It appeared upon the trial, that after the bond was signed by th ^i^r^ ^^^ surety, the principal, in his absence, erased the name of the of ihe na turc both of * Tlie bail-bond must be given to the sheriff in the name of his office ; Rogers V. Reeves, 1 T. Rep. 418. And the bond ouglitlobe taken with a penalty in double the amount of the sum sworn to and indorsed on the writ ; Norden v. Horsely, 2 Wills-, 69. An agreement by a third person to put in bail, is void by the statute 23. rien. 6; Rogers v. Reeves, 1 T. Rep. 418. So is an undertaking by an attor- ney to the sheriff'; Parker v. England, 2 Smith's R.ep. 52. Nor will the court enforce the undertaking against tlie attorney; Sedgworth v. Spicer, 4 East, 568. Nor can an action be maintained, by the officer on such contracts ; Pitcher v. Bailey, 8 East, 17 1 ; Taylo • v. Evans, 1 Ring. 367. But though the sher- iff" cannot take a bond not autiioriscd by the statute, yet the plaintiff" may, and so may tlip officer e/eculing the writ by his directions ; Hal) v. Carter, 2 Mod. Rep. 304. It is said the bail-Lond may be taken before the arrc-^t ; Watkins v. Parry, 1 Slra. 444. But it cannot be .taken after the return day specified in the process. Pullen v. Benson, 1 Ld. R,aym. 352. It was held, however, in the case of Belgar- dine v. Preston, Forts, £65, that a bail-bond after the return of the writ, but before the expiration of putting in bail is valid. The condition of the bail-bond must be inserted before the bond is executed; Powell v. Duff", 3 Cainp. 181 . It must comply with the requisitions of the statute 23 Hen. G. The condition of the bond must conform to the form of the action ; KiJlel- rido-e v. Vv'illson, 2 "Lev. 123. But a trifling variance is not material, where the bail-bond was fur an appearance in placilo Iransgressionis, the writ was in placito transgress io7iis ac eliam billa, the court held the bond valid ; Grovenor v. Soame, 6 Mod. 122. So where the process was in an action of tre.spass on the case, and the condition of the bond was a pica of tresspass ; Owen v. Nail, 6 T. R. 702. So in trover, wliere the -condition was'^a plea of trespass on the case upon promises," Da- venhort v. Parker, Fort. 368. By the Rev. Statutes of New York, Vol. 2. p. 248, the following provision is to be found. Sec. 10. " The sheriff" or other officer to whom any writ shall be delivered, requir- ing the defendant to be held to bail, as herein provided, shall execute the same by BAIL. — Of the, nature and form of the hail bond. 59 obligee, by changing it from " David Brooks, SlierifF," to, "Da- bail to the vid Brooks, Cons ab e of Lincoln," and tiie question was, whetli- bailable. er this avoided the bond. Melle7i, C.J., seemed to think the alteration immaterial. In England bail beloiu is given by bond to the sheriff; bail above is given to the plaintiff by recognizance in court, or before commis- sioners. The bail bond may by law be assigned to the plaintiff; and he may have an action of debt upon it in his own name, and may bring a sci'-e facias upon the recognizance. By the laws of this state, the bail given is made to answer the purpose, both of bail below, and bail above, at common law. It is always taken by bond given to the officer; and such bond is not assio-nable, nor can an action of debt be maintained upon it by the plaintiff, in his own name, or the name of the sheriff. With us, the plain- tiff avails himself of such band,bj- a writ of scire facias, in his own name, in the same manner, as he does in* England, by the same kind of process, on the recognizance ; and instead of the ip\e2i of non est factum, which would be proper in debt on a spe- cialty, the bail may contest the execution, or validity of the bail bond, on the plea that he did not become bail, or the prin- cipal, as alleged in the scirefacias. In~fact this action proceeds on the principle, that the ofiicer to whom the bail bond is given, is the mere trustee of the plaintiff, and receives the security for his use. 2. Harrison v. Tiermans. March T. 1826. 4 Randolph's Va. Rep. 276. Held by the Court, Cabell, J., that a bail bond which is return- -*• bond not , ,,.„, 1-1 -^ 1 .,, specifying ed to the clerk's ofnce, but which specines no sum to be paid t)y the amount the obligor, to the oblioree, is a nullity. Here the part of the '^' '""^ ' °"r^ .... o ' J r ^ ly IS a null "writing in which the sum of money intended to be paid is usual- ty. ly inserted, being left a blank, we think it is no bond, it is a nullity. arresting the body of the defendant, and keeping him in his custody until dis- charged according to law Sec. 11. " Every defendant so arrested shall be entitled to be discharged there- from, upon executing to the officer making the arrest, with the addition of iiisnanio of office, a bond, in a penalty equal to liic s;um indorsed on the writ, witii two suffi- cient sureties, conditioned tiiat such defenr r i i tendmcnt and Robert Ralston, his appearance bail, llie iirst and second ^^^idT^' errors assigned, allege that the bail bond is defective ; — 1st. Be- becn taken cause it is taken to the sheriff, his heirs, executors, administra- wr?ritfs tors and assigns, and not to his successors : and 2dly, Because sufficient, it purports to be taken in a suit against Alexander Ralston only ; no notice being taken in the bond that there were other defend- ants. Per Cur. 1st. A bail bond taken to the sheriff, his heirs, &c. is good ; but it was unnecessary to make it payable to his heirs, executors, &c. The bail bond returned by the sheriff, with a writ, makes a part .of his return; if therefore, there be such a correspondence between the writ and bond, as that by a reason- able intendment, the bond may have been taken upon that writ, it is sufficient. 2d. Bail bonds should receive a liberal construction, in fur- therence of justice. If the bail recite that it is taken by virtue of a writ against R., and if it be taken by virtue of, and returned with, a writ against R., and others, it is sufficient. 3rd. If a bond on its face purport to be the bond of several, and it be executed by all except one, it is unnecessary, in a suit on such bond, to take notice of the name of that one. Unless oyer be taken of the bond, it forms no part of the record, al- though certified with it. 4. The princi pal must ex Bean V. Parker. March T. 1822. 17 Mass. Rep. 591. CCUt6 it Held by the Court, Parker, C. J., that it is essential to a bail bond, that the party arrested should be a principal in it. A bond purporting to be a bail bond, and respecting the debtor as the principal and the other as sureties, is not valid, unless it be actually executed by the principal as well as the sureties. \ ■ ■ 5." Becurity in • an attach HiCHTouR V. MuRRAY. April T. 1793. 1 Haywood's N. Ca. 21. ment bond "^ are in the p^j. (j^^^ jj^j^ ^ Williams, J.S. An original attachment is nature of . ' ^ ^ , bail and Only intended to compel appearance, and where sureties are giv- may surren gj^^ they are exactly to all purposes as bail, and may surrender. BAIL.— Of the hail bond. 61 6. Palmer, et al. v. M'Ginnis. Spring T. 1808. Harding's Ky Rep. p. 505. Held by the court, that if a bail bond be certain to a common Abailbond •' ' need not intent, it is sufficient ; and where it did not state the nature oi state the na the action, nor the amount of the debt, nor damages, nor that a"[fo°[^or^ the plaintiff sued as assignee, it was sufficient. the amount , of the debt Vide Harrison v. Tiermans, 5 Rand. 177. 7. CoLBURN, ET AL. V. DowNEs. March T. 1813. 10 Mass. Rep. p. 20. The christian names of both the plaintiffs, were not inserted P*" '^'^^'^^"^ ^ ' tian names in the bail bond. <\f the plain Per Cur. The bond is unquestionably sufficient to hold the defendant. Notwithstanding the extreme carelessness of the sher- iff, or his clerk, the bond contains a sufficient description of the plaintiffs. 8- Allen v. White. Dec. T. 1824. 1 Alabama Rep. p. 289. Per Cur. A bail bond conditioned for the appearance of the But must principal, at a day different from that prescribed by law, for time pre holdino; the court, is void. scnbed by ° ' law tor hold ing the 9. court. Long v. Billings. March T. 1813. 9 Mass. Rep. p. 479. S. P. Sparhawk v. Bartlett. 2 Mass. Rep. p. 188. Case against defendant, for taking insufficient bail. Two sure It appeared at the trial, that defendant arrested one Chapin, quired tea and took a certain Asa Isichols as bail, who executed the bond,^^'^ '^°'^'^- and who was then a merchant of large fortune, but who before the trial became insolvent, "The ground of the action was, that the defendant took the bail bond with one surety only. Per Cur. Sewnll^ J. The question is, whether the acceptance of one surety, w^as a sufficient performance of the defendant's entry. And after much consideration, protracted by a difference of opinion, among the members of the court present, when the case was argued at the bar, the court are of opinion it was not; that the defendant is liable under the circumstances proved for a neglect of the duty in accepting insufficient bail. And by the 23 Hen. 6. c. 10. it has been held in Great Britain that the party arrested is not entitled to his discharge upon bail, unless he of- 62 BAIL. — Assignment of. fers two sufficient sureties, which to this day is a modification of the common law. (D) Forfeiture and assignment. Newall v.HoADLEY. JuHc T. 1831. 8 Conn. Rep. p. 381. S. P. Fitch v, Loveland. Kirby's Rep. p. 380; Ed- wards V. GuNN. 3 Conn. Rep. p. 316; Ryan v. Wat- son. 2 Greenleaf s Maine Rep. p. 312. wlJ^d Case against the defendant as sheriff of jFTarZ/brd county, for cannot be neglecting and refusing to assign a bail bond executed by JYorfon the sheriff ^^ principal, and Williams as surety. The plaintiff sued JVbr^on is not liable by attachment, and the defendant arrested him, and took a bail signing. bond in a sufficient sum. That Norton did not perform the con- * Bail bonds are conditioned that " the defendants shall appear at the time and place mentioned in the writ ;" it follows that if the defendants do not nppear in conformity with such condition, by putting in. and perfecting special bail to the ac- tions, the bonds become forfeited, and the sheriff obtains a right of action for the full amount of the debt, secured by the penalty in the bail bond ; and tlie plaintiffs have an election, eitiier to take an assignment of them, or proceed against the sheriff to compel him to return the writs, and bring in the body of the defendants, or put in and perfect bail. The former course is generally adopted by the plaintiffs, if the bail below are responsible persons, and sufficiently opulent to satisfy their demands; but as the taking an assignment of the bund, and electing to proceed against the bail, is a voluntary act, and exonerates the sheriff from his liabilitj', particular care should be taken, to ascertain whether the bail are competent to fulfil their engage- ment. By the Revised Statutes of New York, vol. 2. p. 349. s. 12. the following pro- vision is enacted : "If default be made in the condition of such bond, the sheriff taking the same, shall assign such bond to tlie plaintiff m tlie action, at his request, who may prose- cute the same in his own name; and such proceedings shall be had in such action, for the recovery of the plaintiff's demand, and for the relief of the bail thereon." At common law, tlie sheriff could not be compelled to assign the bail bond ; El- lis V. Yarborough, 1 Mod. 228 ; and even where he assigned it, the action was oblig- ed to be brou"ht in the name of the sheriff, who might have released the action ; 3 Petcrsdorff's Abr. 42. But since the statute 4 & 5 Ann. c, 16. he is obliged to as- sign the bond, and is liable to an action for refusing; Stamper v. Milborne, 7 T. R. 122; Jones v. Lander, 6 T. R. 122. The plaintiff may insist on thu assignment of the bond, yet the sheriff cannot compel him to accept it ; Rex v. Dawes, 1 Ld. Ray m. 722 ; and it cannot be assigned before a breach of the condition of it ; Dent v. Weston, V) T. R. p. 4. Nor pending a rule to stay proceedings in the original ac- • lion ; Swayne v. Crammoiid, 4 T. R. \16. Or after a rule for the allowance of bail lias been served; Murray v. Durand, 1 Esp. 87, Or where .the defendant has surrendered himself before the return of the writ ; Jones v. Lander, 6 T. R. 753. The assignment may be made by the high sheriff, or by the under sheriff; Kitson V.Frogg, 1 Stra. 60. And the sheriff though he be out of office may assign the bond ; Hange v. Manning, Forts, 3G4. Where the plaintiff has taken an assign- BAIL. — Assignment of. 63 dition of the bail bond by appearing in court, &c., that judgment was obtained and execution issued, against the said Morton^ and was returned non est inventus by the defendant. JVorioJi, who resided in Boston came to Hartford and offered to surrender him- self in discharge of his bail, and the bail offered to surrender him to the attorney of the creditor, who said " I have nothing to do with him ; you must keep him here, untirthe execution is out " — on which the bail said to the principal — " you can go as quick as you please ; you* are at liberty ;" and the principal, af- ter having been in i7arf/brc?, publicly, two or three days, and fre- quently in the office of the creditor, who knew that the object of his visit was to surrender himself in discharge of his bail, re- turned to Boston ; the execution was in the hands of said attor- ney, from its date, until the 3rd of Oct., when it was given to the sheriff, who, on the 10th of that month, made his return of non est inventus thereon. In an action on the case, by the creditor against the sheriff, for not assigning the bail bond, it was held by the coin't ; 1st, that these facts being admitted or found, the liability of the defendant, was purely a question of law ; 2nd, that there could be no forfeiture of such bail bond, and, of course, no recovery upon it, without an avoidance of the principal, and a return of non est inventus on the execution ; 3rd, that in order to subject the bail, there must be reasonable endeavours, on the part of the, creditor, or officer, to take the body of the debtor, and the utmost fairness in the proceedings ; 4th, that in this case, there were no such endeavours and fairness, but, on the contra- ry, an attempt to entrap the bail against the honesty and justice of the case, and, consequently, there was no such avoidance, or return of non est inventus as the law requires to constitute a for_ feiture of the bail bond ; 5th, that as such bond could never be ment, and instituted proceeding on the bail bond he is precluded by his election to continue the original action; Eyton v. Beatie, 2 Smith'j Rep. 489. Nor can he rule the sheriff to return the writ; Lord Brooke v. Stone, 1 Wils. 223. By the Revised Statutes of New York, vol. 2. p. 382. the following provision ia made authorising a surrender on the bail bond : Sec. 29. Whenever a bail-bond shall be taken on the arrest of a defendant, the bail therein may surrender himself in exoneration of his bail, in the same manner except as here'n after modified, before the same officers, and witii the like effect as herein before provided, with respect to special bail. Sec. 30. To effect such surrender, two copies of such bond, proved by the affi- davit of the shbriff to whom the same was given, or of a subscribing witness there- to, to be true copies, shall be produced, instead of certified copies of a bail piece ; and an order of such commitment shall be made on one of such copies, and be delivered to the sheriff, and the other of such copies shall be filed with the order for the discharge of the bail, and with the otiier papers, in such proceeding, with the clerk of the court in which the action may be pending. 64 BAIL.— ro the Sheriff. enforced, no recovery could be had against the defendant for not assigning it, since the law subjects no man to damages for not doing an act perfectly nugatory. 2. Beeker v. Simmons. Nov. T. 1810. 7 Johns. N. Y. Rep. 119, S. P. Smith v. Rosencrantz. 6 Johns. Rep. 97. theVainiiff '^^^ defendant neglecting to put in special bail, the plaintiff takes an as took an assignment of the bail and proceeded to judgment upon signment of. the bail it. proceeds lip '^^^ question was, whether the plaintiff having elected to take on it, he can an assicrnment of the bail bond,* could afterwards file common not file com, ., °, i • ^■u ■ • i -^ mon bail, bail, and proceed m the original suit. Per Cur. The plaintiff having elected to proceed upon the bail bond to a judgment, and having charged the bail to the ar- rest, and his principal in execution, he cannot be permitted, af- terwards, to waive these proceedings by filing common bail in the original suit, and proceeding to a judgment therein. He is con- cluded by his election, and the proceeding under it. The reme- dies are inconsistent with each other ; and he cannot have both. That would be oppressive. Vide Hugitst v. Hallet, 1 Cavnc^s Rep. 55. 3. Arthur V. Antonio. Nov. T. I8l8. 1 Nott & M'Cord's S. Ca. Rep. 251. frocee^up Held by the Court, that if the principal die before the issuing on it where of the cu. sa., an action cannot be maintained against the sheriff pal dies be for not assigning the bail-bond. fore the issu ing of the ca. sa. . (E) Or THE ACTION ON THE BAIL-BOND. 1, M'RoE V. Matton. Sept. T. 1830. 10 Pickg. Mass. Rep. 49. S. P. Lane v. Smith. 2 Pickg. 283; Blanchard v. Rus- SEL. 14 Mass. Rep. 1 ; Bissel y. Hall. 11 Johns. Rep. 168. An aciion Wilde, J. In the third count the plaintiff declares in an ae- on a bail- ' ^ * By t!ie Rev. Statutes of New York, vol. 2. p. 349. sec. 12. it is declared, "That if default be made in the condition of such bond, the sheriff taking the same, shall assign such bond to the plaintiff in the action, at hia request, who may prosecute tha eame in his own name." BAIL. — Action on hail bond. 65 tion of debt on a bail-bond, taken in North Carolina, and the bond given , . , in another question is, whether this count can be sustained, state must The action must be commenced within the year. The Ian- jjf jy['^°ssf ^ guage is general, and there is no savino; clause in respect to ac-chu^etts o o t) ' a within one tions on bail-bonds, taken without the commonwealth. The year, if in general principle is, that the limitation of the county in which ^.^^^ ^^^^^^ the remedy is sought, and not that in which the demand arose, is to be observed. If therefore, an action ever could have been maintained within this jurisdiction, it is now barred by the stat- ute. 2. Lane v. Smith. March T. 1824. 2 Pickg. Mass. Rep. 281. S. P. Rice v. Carnes. 8 Mass. Rep. 490. The Court left the question undecided, whether debt would Q-uery, lie on a bail bond or not ; but held, if the action would lie, it debt will lie must be brought within one year afterlfinal judgnaent against the P" '^'^^^l principal. • Massachu fcelts. 3. Haswell, assignee, &c.,v. Bates & Lansing, Jan. T. 1812. 9 Johns. N. Y. Rep. 80. S. P. Davis v. Gillet. 7 Johns. Rep. 318. Motion to set aside the suit on the bail bond. The action was An action on a bail bond taken in the Court of Common Pleas of Saratoga, U|.Q{Jjf^ij^ and both the bail and the defendant lived out of the county. this court Per Cur. The suit is maintainable in this court within the rea-bond taken son of the case of Davis v. Gillet, 7 Johns. Rep. 318, and the i" '^^p''"^ , r 5 mon Pleas, bail Will be relieved on the usual terms. It is the uniform prac- tice of the court, in every case, where the bail asks for relief, on the return of a writ against them, to grant it, on the usual terms. There is no difference in this respect, between a suit on a bail bond, and on a recognizance. The bail iti this case, are to pay only such costs as would be taxed in the Court of Common Pleas, as he is entitled to be relieved, in the same manner as he would have been if the suit had been brought in this court. Motion granted. BULKLEY, assignee, &C., V. CoTTON, SURVIVOR, &C. Aug. T. 1806. 1 Johns. N. Y. Rep. p. 515. Motion to stay proceedings, in the bail bond suit. It appeared Bail will be that the bail bond was executed in 1804, and the capias against [Jr^thf ^^ Vol. II. 9 66 BAIL.— To the Sheriff. death of the the principal, was returned in November of the same year. In principal in . . . •' the same 1805 the principal died, and the defendant is sued on the bail if^hTwerc ^ond, as survivor. It was contended, the bail could not be re- alive. lieved,and Cowper 71, and Barnes 112, were cited. Per Cur. It is not the practice of the English courts to re- lieve the bail, in a case like the present; but the practice of this court has been to relieve the bail to the sheriff, in all cases, up- on the return of the writ against them ; (Coleman, 57.) The cases cited do not apply here. We see.no reason why the bail should not be relieved after the death of the principal, in the same manner as if he were still alive. As this point has not been before settled, and the English practice is different, let all the proceedings on the bail bond be set aside, on payment of costs. (a) Staying proceedings on.* 1. Campbell v. Grove. Oct. T. 1800. 2 Johns. N. Y. Cas. 105. Will not Where a party agreed to stay proceedings in a bail bond suit, cecdin^s On payment of costs, the original suit having been settled, and where an \\^q costs not beinff paid, the plaintiff proceeded in the bail bond agreement . , ^ ■ • i i t i i • to pay costs suit, the court refused to set aside the proceedings, as the plain- been"Smpli *^^ ^^^ ^° other way to obtain his costs, ed with. * When a trial has been lost, the bail bond will be ordered to stand as security, on staying proceedings; Seaber v. Powell, Barnes, 91; The King v. The Sheriff of Surry, 3 Taun. 606. The court will impose terms according to the circumstances of the case, whether the plaintiff has been delayed or not ; Adams v. Thompson, 2 Smith, 13. It is said, the nature of the condition imposed by the courts, in direct- ing a suspension of the proceedings in an action on the bail bend, depends entirely upon the questions, whether a "trial," or a "term," has or has not been lost. Wheth- er through neglect of the defendantto put in, and perfect bail above, the plaintiff has been prevented from trying his cause in, and obtaining judgment of the term, in which the writ was returnable; Hill v. Bolt, 4 T. R. 352. (note) ; 3 Petersdorff 's Abr. 64. And where a trial has been lost, the bail bond will be ordered to stand as security even where the bail have rendered their principal; Philips v. Whitehead 1 Chitty's Rep. 270. And where the plaintiff put in bail above, and applied to stay proceedings on payment of costs, and before the expiration of the rule nisi, the plaintiff had lost a trial, the court ordered the bail bond to stand as security; Eyton V. Beatie, 2 Smith's Rep. 489. So where the bail do not apply in proper time to stay the proceclngs; Digthett, el al. v. Tollett, 3 Price, 257. And where the court have stayed the proceedings, it is incumbent upon the defendant to tax the costs, and serve a copy of it on the plaintiff's attorney, and tax and pay them with- out delay, otherwise the order will not operate as a stay of proceedings; 1 Tidd. Prac. 327.7 ed. The fffect of a stay of proceedings precludes the defendant from pleading in abatement in the original action ; Anon. 2 Salk. 519. Or bankruptcy puis darrein continuance ; Dawson v. Levi, 4 B. & A. 249. BAIL. — Setting aside proceedings o?i hail bond. 67 2. Masterton^ Gent, one, &c. v. Benjamin. Aug. T. 1804. 2 Caine's N. Y. 98. S. P. Berry ads. Elles. Cole. Cas. 57. Held by the Court, that if notice of the entry and justification But will, of special bail be not given till after the arrest of the bail, they glcatbVis^ ^ will order the proceedings on the bond to be stayed, on payment g'^en aft«r ^ ^ J ? x- J the arrest of of costs. the bail. 3. HUGUET, ASSIGNEE OF THE SHERIFF V. HaLLETT. May T. 1803. S.P. Beeker v. Simmons. 7 Johns. N. Y. Rep. p. 119. The original suit was commenced • in January, 1802. May An agree term the action on the bail bond was brought. The attornies gj" ^^^ of both parties entered into an agreement in the nature of a rule "^^^^M^S °" to stay proceeding on the bail bond. Defendant filed special bail, suit, declar but did not pay the costs of the bail bond suit. The plaintiff^"?*" "•j^® proceeded in the original suit, and issued execution, which was tion is a paid, and then proceeded on the bail bond suit for the costs. right to a Per Cur. The application is to set aside the proceedings on^^** the bail bond suit. It was the duty of the defendant to plead and pay costs. This would have been ordered, had the plaintiff not proceeded in the original suit, but when he did that, it was a waiver of his procedings on the bail- bond, and a waiver of a right to a plea in the suit upon it. The proceedings must be set aside upto the time when special bail was entered, and notice given on payment of costs. Vide Cannon, adsm. Cathcari, Colemaii^s Cas. p. 80. (h) Setting aside proceedings on.* 1. Ex PARTE, Metzler. Feb. T. 1826. 5 Cowen's N. Y. Rep. 287. Held by the Court, that on a motion to set aside the proceed- What affi ings on a bail bond, affidavits made in support of the motion, ^e r'^^d'"*''^ and entitled in the original cause, attached to an order to stay motion to proceeding, entitled in the bail bond suit, with a notice of mo-ceedings. tion, showing the real object of the application, may be read. * A motion to set aside proceedings on the bail bond, either on behalf of the bail, or the defendant in the original action, should be made as early as possible, where the ground of the motion is for some irregularity; 3 PetersdorfF's Abr. 70. The motion may be made befoie the bail is put in; Heath v. Gurley, 4 Mooro, 149. 68 BAlL.~To the action. (c) Waiving proceedings on. 1. HuGUETT V. Hallett. May T. 1803. 1 Game's N. Y. Rep. 55. If the plain Held by the Court, that proceedings in the original suit, is a if tCorfgt waiver of the proceedings on the bail bond. nal suit, he waives pro ihfbafr °" 11. BAIL TO THE ACTION. bond. (A) General nature or it.* 1. Phelps and Howard, Overseers or the Poor of Preble, V. Bronson, et al. Feb. T. 1826. 4 Cowen-'s N. Y. Rep. p. 61. ^ISmnc ^^^' ^^^' ^^^^'^ ^^ "° doubt, that when a plaintiff takes his pro tunc, default, but inadvertently omits to file common bail, in a case proper for it, he should always be permitted to make his pro- ceeedings good by doing this mine pro tunc. Upon such a case being presented by affidavit and notice of motion, it is a matter of course to grant a rule that it may be done. Vide 2 Cow en'' s Rep. 43. When the application is for irregularity in the action against the bail, the affidavit should be entitled in that cause ; Ham v. Philcox, 1 Bing. 142. But where theap- plicatlon isfor a defect in the proceedings against the original defendant, theaffidavit should be entitled in the original action ; 1 Tidd. Though it would seem it may be entitled in either case ; Kelly v. Wrother, 2 Chitty's Rep. 109. If the defendant be arrested by a wrong name, the court will set aside the proceedings on the bail bond suit; Symcs v. Mason, 1 B. & P. 105. So the court will set aside proceed- ings on the bail bond, if the writ be returnable out of term ; Mills v. Bond, 1 Stra. 399. Or if the process by bill be tested in vacation ; 3 Petersddrff's Abr. 73. A variance between the declaration and process, or the declaration and affidavit, is a ground for setting aside the proceedings on the bail bond ; Halloy v. Tipping, 3 Wils. 61 ; Tetherington v. Goulding, 7 T. R. 80. So also if a defendant be arrest- ed as surviving partner, and is afterwards declared against, in his own right ; Spaul- ding V. Moore, 6 T. R. 363. So also where the plaintiff takes a cognovit of the principal; Farmer v. Thorley, 4 B. & A. 91. And where the principal dies before the return of the vvrit, the court will set aside the proceedingson the bail bond • Hutchinson v. Smith, 8 Mod. 240. * Tiie bail bond, or bail below, as it is termed, is an engagement under seal,for the appearance of the party on the return of the process. And that engagement is fulfilled by entering bail to the action, or putting in bail above. It i-s an agree- ment under seal, with a condition, or penalty, that the defendant if convicted, or judgment shall be obtained against him, shall satisfy the plaintiff, or render himself or that the bail will do it for him. A diversity exists in the different states upon this subject. In Massachusetts, and several of the other states, there is but one BAIL. — Who may, or may not he. 69 2. Howell v. Denniston. May. T. 1805. 3 Caine.'s N. Y. Rep. p. 97. The plaintiff filed his declaration, de bene esse, and entered aUnu'^b^ilis rule to plead on the return day of the writ, on which the de- court have ^ not cogniz fendant was taken. ance of ihe Per Cur. The rule to plead was irregularly entered, because ^^ until the writ be returned, bail filed, or an appearance entered, there is no basis for a proceeding, and the court has no cogni- zance of the cause, so as to authorise the pleadings. Vide Ross v. Huhhell, 1 Game's Rep. 512. cause. (B) Who may or may not be. 4. Baily v. Warden. Aug T. 1822. 20 Johns. N. Y. Rep. p. 129 S. P. Coster v. Watson. 15 Johns. Rep. 535. Motion to set aside a justification of special bail. It appear- An attor. •' ^ ney or sher species of bail. The ball bond taken by the sherifi, answers to the nature of bail below and bail above. It is returned with the writ and file ot record. The plaintiff has an election to proceed against the bail upon the recognizance by an action of debt, or by the process of scire facias. If an action of debt be com- menced, when the proceedings are stayed on payment of debt and costs, the bail are obliged to pay the costs of the snit against themselves, but in proceeding by scire facias, the bail pay no costs unless they appear and plead. Damages may be recov- ered for the detention of tiie debt, in an action of debt on the recognizance, but not in the scire facias suit; 3 Petersdorff 's Abr.p. 210. In proceeding against bail on their recognizance, by an action of debl, the plaintiff is not bound to proceed in the court, in which the recognizance was taken ; Fisher v. Branscomb, 7 T. R. 355. An action on the judgment on the recognizance in the C. P., may be brought in the K. B. The process against the bail on their recognizance, may be sued out on the re- turn day of tb^e ca. sa. ; Shivers v. Brooks, 8 T. Rep. 628. But the ca. sa. must be returned ; Pinero v. Wriglit, 2 B. k P. 235. Proceeding by sire facias. When the proceeding is by scire facias, the writ may be sued out on the return day of the ca. sa. ; Stewart v. Smith, 2 Ld. Raym. 1567. Or in the C. P. on the quarlodiepost of the process against the principal ; Hunt v. Cox, 1 Blac. 393. The scire facias must be issued in the county, in which the re- cognizance is recorded ; Coxetur, et al. v. Burk, 5 East. 461 ; Horris v. Calvert, 1 East. 603. The scire facias ought to be tested on the return day of the capias against the principal; Steward v. Smith, 2 Stra. 866. There are two methods of proceeding against the bail, either by suing out two writs of scire facias, and two niAz/s being returned thereon, or by issuing one «cire/acia«, which must be fuur days exclusive in the office before the return, and a summons thereon, served on the bail and scire facias returned ; Clark v. Bradshaw, 1 East. 86. And bail sued by scire facias are fixed by a summons at any time before the rising of the court on the re- turn day of the writ ; Webb v. Harvey, 2 T. R. 757 ; O'Brian v. Frazier, 1 Stra. 644. 70 BAIL.— To tlu Action. iff, if except ed that the sheriff of the county of Simhen.. together with an- Cu to 8.rG . ■' D not good other person, had become special bail for the defendant, on the return of the writ of habeas corpus cum causa, in this cause ; and that both of them justified before a commissioner. Per Cur. We have decided that an attorney is not good bail, if excepted to ; and, for the same reason we think a sheriff ought not to become bail ; and such is the rule of the English Courts, which do not allow any person concerned in the process of the court to become bail.* Motion granted. 2. Plumer v. Brewster. Sept. T. 1822. 2 N. Hamp. Rep. p. 473. This was an action upon the case for an escape, against the A deputy defendant, sheriff of the county of Grafton, and was submitted be bail. to the decision of the Court, upon a case stated in substance as follows : the plaintiff having sued out a writ against one B. Hoit, delivered the same to I. Sinclair, a deputy of the defendant ; and Sinclair, having arrested Hoif, became his bail, and suffered him to go at large. Richardson, C. J. The question submitted to our decision is, whether a deputy sheriff, who has arrested a person upon mesne * This principle accords with the law in Great Britain ; Thomason v. Rovibell, 2 Doug, 479. (note) ; Brown v. Coombs, 8 Mod. Rep. 339. The same principle ex- tends to attorn ies' clerks; Toxall v. Bowerman, 2 East. 182. cited. And the inca- pacity to become bail, extends to various descriptions of persons. It extends to sheriff 's officers; 3 Petersdorff's Abr. p. 101. To the sergeant at mace; Doldern V. Feast, 2 Stra. 890. To the Turnkey of the King's Bench Prison ; Daly v. Brooshoofe, 6 Moore, 72. To any officer of the palace court ; Filewood v. Smith, Barnes, 110, To a member of the house of commons; Duncan v. Hill, 1 D. & R. 126. To a conveyancer in partnership with an attorney; v. Yates, 1 D, & R. 9. The property qualification of bail may be thus stated. Bail must be worth doub- le the amount sworn to ; 3 Petersdorff's Abr. 108. And it must be in his own right; Anon. 2 Chitty, 97. And must be within the jurisdiction of the court; Hughes v. Sterling, 11 Price, 158. Though it is said the rule is not strictly enforced ; Wels- ford's bail, 1 Chitty's Rep. 286 ; Colson v. Cohardy, 1 Tidd. 295. And where the property is partly abroad, and partly in England, the bail were allowed to justify ; Beard more v. Philips. 4 M. & S. 173. Bankruptcy and Insolvency. A certificated bankrupt is eligible as ba il; Smith V. Roberts ; 1 Chitty's Rep. 9. But an uncertificated bankrupt is not; Mountain V. Wilkiiis, 3 Petersdorff's Abr. p. 110., Nor can an insolvent debtor; Smith v. Roberts, 1 Chitty's Rep. 9 ; and a person, who has compounded \^ith his creditors^ and owes any sum of money cannot be bail ; Waitman's bail, 3 Petersdorff's Abr. p. 74. Nor can a person, who cannot tell whether he has become bail since his fail- ure; Bennet's bail, 1 Chitty's Rep. 289. Nor can a person, who does not know whether he has been recently arrested ; Newman's bail, 2 Chitty's Rep. 95. Or a person unable to pay dishonored bills ; Barnesdall v. Stretton, 2 Chitty's Rep. 79. Or unable to pay taxes ; Lewis v. Thompson, 1 Chitty's Rep. 309. BAIL. — Putting in, and notice of. 71 process, may lawfully become the bail of the person arrested ? In this state,. we have here no rule prohibiting deputy sheriffs from becoming bail, and we are of opinion, that this action cannot be supported. Judgment for defendant. 3. Stuart V. Fitzgerald. July T. 1811. 1 N. Ca. Law Reposito- ry, p. 234. Per Cur. Hall, J. Where the sheriff executes a bailable writ, ^^tihesher rr 1 c 1 .' iff, if he neg and neglects to take bail, the sheriff himself becomes special lects to take , ., bail, be DmII. comes spe cial bail. (C) Putting in, and notice of. 1. Wright v. Jeffrey. Oct. T. 1825. 5 Cowen's N. Y. Rep. p. 15. S. P. Vanderpoel v. Wright. 1 Cowen, 209. The capias ad respondendum was returnable on Sunday; and, i^^-j "y^^^or without kn(ywing this fact, the defendant had put in special bail. isesFoceed Motion to set aside the capias and all subequent proceedings, out any pro Curia. The motion must be denied. It was not material whether the defendant had knowledge of the defect or not, when he i^utin special bail. Putting in bail would have warranted the plaintiff in proceeding without any process. The case is not within the statute, or the rule of public policy, which for- bids any ministerial act in the course of a cause to be performed on Sunday. It is probably a mere clerical mistake of the return days. It was taken for granted, however, in Vanderpoel v. Wright, (1 Cowen's Rep. 209; ) that even in that case, which was the service of a capias on Sunday, an appearance would have cured the defect. Motion denied. Nichols v. Sutphen. Aug. T. 1827. 7 Cowen's N. Y. Rep. 422. , S. P. Cobb v. Darrow. 6 Cowen 390. bail author Held by the Court, that notice of special bail from the defend- ing to judg ant's attorney, when filing the bail piece was omitted by mistake, "^^"^ ^"^ warrants the plaintiff in proceeding to judgment and execution against the against the bail named in the notice. That the defendant had a u^e'laif'"*' right to rely on the notice of bail, and go on as if the bail piece F^ce has had been actually filed. It may be filed nunc pro tunc. fifed.^^" 72 BAIL.— To the Action. 3. Pardee v. Reid. Feb. T. 1825. 4 Cowen's N.^Y. Rep. p. 51. But notice ]^jg| j \^^ ^^^ Court, that the plaintiff's attorney is not bound to of putting •' ^ . 1 1 -1 • 111 in must be regard the filing of a special bail piece, unless he have notice of fh^piahitiff i^ ; and though special bail be actually in, without notice, the fil may file jj^o; of €ommon bail after the ordinary time is proper. commcn ° bail. 4. Stevenson v. Kimber. Jan. T. 1832. 3 Rawle's Penn. Rep. p. 272. Rogers, J. A rule of court directs, that in no case whatever, 24 ho^"''^^.^o shall special bail be entered, without twenty-four hours notice in ed for put writing, specifying particularly the name, place of abode, and Pennsylva Calling of the bail. The rule was adopted to prevent surprise, "ia- and to avoid surreptitious entries of bail ; and this object can be best effected by strict and literal compliance with the rule. As the directions of the rule are by no means difficult, and are ex- plicit and plain, as words can make them, they will, under no pretence whatever, be dispensed with. Morris v. Geiger. May T. 1829. 5 Halst. N. J. Rep. p. 331. InNew Jcr Motion to discharge defendant on common bail, sey. ^ The Court refused to hear the motion, because notice of the application had not been given to the plaintiff's attorney. 6. Pardee v. Reid & Arnold. Feb. T. 1825. 4 Cowen's N. Y. Rep. p. 51. And the The capias ad respondendum was returned the 1st day of last liaintiffs at i , i • m i i t i i ^ tovney is Uct. term ; the declaration was filed de bene esse, and rule to not bound pjg^j entered, and notice thereof affixed in the clerk's office, on the clerk's the 10th of Nov. 1824; and on the 10th of Dec. thereafter, corn- know whe nion bail was filed, and a default entered. But on the 6th of thar special j)g(.. a special bail-piece had been filed by the defendant, notice whereof was afterwards given, but not till the 20th of Dec, and after default had been entered. Motion to set aside the default as irregular, it having been entered before the 4 full days had expired after filing special bail ; 1 R. L. 324, s. 5 ; and Lespenard v. Baker, 6 Johns. Rep. 323. were cited. Per Cur. The plaintiff's attorney was not bound at his peril BAIL. — Justifying of . 73 to know whether special bail was in. To require this, would drive him to a search in all our clerks' offices. Special bail is not regularly in, until notice is given to the plaintiff's attorney. This case is, as if no special bail-piece had been filed ; and double the time for putting in special bail having elapsed, the filing- common bail, and entry of the default were irregular. Motion denied. 7. Quick v. Merrill. Aug. 1805. 3 Caine's N. Y. Rep. p. 133. Per Cur. Notice of bail necessarily imports a notice of re-:!^''^'*^t"^' •^ ^ imports a tainer, as attorney. retainer. (D) Justifying bail.* 1. Cromilines, ads. Beldens. Aug. T. 1828. 1 Wend. N. Y. ^' Eep. 107. Motion to mitigate bail. The defendants were arrested on ^^ ^^.^,i|^f/'^ ac etiam clause, demanding 60,000 dollars. The plaintiff showed that bail cause to the amount of 30,000 dollars. The Recorder of New- -^^^o^jble ^ York directed bail to iustify in the sum of 45,000. " the amount contciui6cl Per Cm: Sutherland, J. The general rule undoubtedly is, in the writ, that bail must justify in double the amount contained in the writ, ^"^'j.^'^iave or in the order to hold to bail, if an order has been obtained, a discretion, and the plaintiff may demand two bail. According to this rule, jgate it to a * Bailbein^ excepted to, they 'are then to justify as good and sufficient sureties for the defendant. And in the K. B. they must justify in four days after notice of exception in term time, or if in vacation upon the first day of tlio ensuing term ; 3 Petersdorff's Abr. 158. But this rule does not apply to added baif; Anon. 2 Chit- ty's Rep. 84. And where bail is not put in in due time, they i-'iiist justify without ex- ception ; Story's case, 2 Chitty's Rep. 82. The notice of justification ought to be properly entitled, but the transposition of the plaintiff's and defendant's names, does not render notice invalid; Anon. 2 Chitty's Rep. 86. The parties addition, and place of abode, must be described in the notice; Wood v. Chadwick, 2 Taun, 173 ; 1 Chitly's Rep. 351; (Note.) And the christian names ought to be stated ; Taylor v. Halliburton, 1 Chitty's Rep. 49.4, and 351. And notice of bail given by a new attorney, without an order for the change, is irregular ; M'Pherson v. Pcobin- son, 1 Doug. 217. And must be served upon the plaintiff's attorney one day before the time appointed for justification; Wright v. Ley, 2 B. &; P. 31. Where bail are put in and exception entered in vacation, the defendant's attorney must, within four days after such exception entered, give notice of justification for the first day of tlie next term ; Millson v. King, 9 East, 433. But two days notice of added bail in such case, is sufficient; Hone v. Barker, 1 Chitty's Rep. 4. Demanding a plea is a waiver of justification ; The King v. The Sheriff of London, 1 D. & R. 163. Vol. II. 10 74 BAIL. — To the action. reasonable each of the bail in this case would be required to justify in the ingtoihe sum of 90,000 dollars. Where the debt is large, this rule may cesofThe" operate, as has been suggested, oppressively, and it is the duty case. of the court, to see that in the enforcement of their rules, op- pression be avoided. The object of bail is the security of the plaintiff, and when that is attained, his claims are satisfied. The debt demanded, is $ 30,000 ; the defendant offers bail in $ 35,000; and though the court admit the the general rule to be, that bail must be given in double the sum demanded, or ordered, yet in cases where the debt is enormously large, they will exercise the discretion that belongs to them, and direct bail to be given in such sum, as they deem reasonable, under the circumstances of the case. The court therefore order, in this case, that the bail justify by two, or any greater number of persons, in the amount of $45,000 in the aggregate, and no more ; and that the order of the recorder, be modified accordingly. Fenn v. Smith. May T. 1810. 6 Johns. N. Y. Rep. p. 125. Per Cur. There may be a justification of bail, in vacation iustifV^l^ before a judge, at his chambers, according to the English prac- fore ajudge tice, v/here the defendant happens to be in custody, in vacation. at chambers tt-- 7 10 t i -r* ^^r^ i i • • • i i 1 in vacation. ^^de Id Johns. Kep. 422, where by rule it is provided, that bail may justify before an officer, authorised to take bail. Waterman v. Allen. May T. 1823. 1 Cowen's N. Y. Rep. 60. S. P. Trotter & Douglass v. Hawley & Rose. ihid. p. 226. The People v. Judges of Onondaga. 1 Cowen, 54. And where Held by the Court, that where bail are excepted to, and neg- theyneglectlect to justify, they are as no bail, and the plaintiff may file com- they cea^'e ^^^ ^^^^5 ^^^^ proceed under the statute, and take a default, to be bail which will be set aside, only on terms. (E) Excepting to. * 1. Anon. Feb. T. 1827. 4 Halst. N. J. Rep. 25. Special bail Motion for leave to surrender defendant in discharge of bail. may surren * The defendant Iiaving been served with notice of bail having been put in, ei- ther accepts, or excepts to it. He may accept by a direct avowal of his satisfaction BAIL. — Excepting to. 76 Objection, on the ground that exceptions had been entered to the ^er the prin bail. withstand Per Cur. Ewing^ C. J. Special bail may surrender the prin-J^Jf^^^^yp^ cipal, notwithstanding they are excepted to. The exception to ed to, bail is intended to test, for the security of the plaintiff, their re- sponsibility ; but their responsibility is unimportant, when an immediate surrender is to be made. Cooper v. Spicer, Smiffen & Oddie, Manucaptors or Cald- well. May T. 1824. 2 Cowen's N. Y. Rep. p. 619. Spicer and Caldwell, as bail to Oddie, were excepted to, and ,^^" ^'^^ Oddie refused to iustify ; Smiffen and Spicer iustified as special to have an exoncrctuT bail. Smiffen acknowledged a separate bail piece. Judgment entered on was obtained against Caldwell, and a capias ad satisfaciendum was pJece but issued against all three of the bail, and was returned cc^ji corpora^^'''^^^^}-^'^^Y as to Spicer and Smiffen, and non est as to Oddie. Issue was may be pro ioined on nul tiel record. The recognizance roll was against all ^^^^"^.^ '^ ■i o o gainst as three of the bail. bail. A motion w^as made to bring on the trial by record, and also that an exoneretur be entered on the bail piece as to Oddie. It was contended, that the other bail had a right to avail themselves of being improperly joined with Oddie. Per Cur. Had Oddie applied, we should doubtless have di- rected an exoneretur^ but he is not before the court in any shape. The other bail have no right to apply for him. Then this excep- tion is introduced as matter of defence upon the trial. It is said that Oddie is not bail ; that he ceased to be so, on entering the exception, and neglect to justify. This is true, to every substan- tial purpose. He ceased to be bail, and the plaintiff does not with the sufficiency of tliem, or he may impliedly admit them sufficient, and in ei. ther case the bail are absolute. The right of excepting to bail is waived by pro- ceedmginthe original suit; Welsh v. Haddock, Ca. Prac. 136; and where bail below becomes bail above, the plaintiff cannot except after an assignment of the bond ; Fish v. Horner, 7 Mod. 62. The exception must be entered within twenty days after notice of bail ; Higginsv. Bambridge, Barnes, 81. The necessity of en- tering an exception is confined to instances, where the bail have been put in, in due time, for if they have not been put in until after the expiration of the period limit- ed for that purpose, they are bound to justify, whether they have been excepted to or not; 3 Petersdorff's Abr. 152; Fuller v. Prest, 7 T. R. 109. And entering an exception, without serving a notice of it, is nugatory: Satchwellv. Law.s, Barnes, 88. So is a notice notentilled in the cause ; The King v. The sheriff of Middlesex, 1 Chitty's Rep. 741. Or in a wrong cause ; Anon. I Chitty's Piep. 374. A no- tice of justification between the parties, is a waiver of any irregularity in the notica of exception ; Cohen v. Davis, 1 H. Blk. 80. 76 BAIL — To the action. pursue him with the view to make him bailable, but merely as a formal party to the record. Briggs t. Rowe, et al. Oct. T. 1827. 7 Cowen's N. Y. Rep. p. 508. ~S. P. Adams v. Minton. 6 Cowen, 56. The defendant's attorney gave notice of bail, and at the same reptiotiTo ^ii^e served him wdth pleas. On the 7th day of the same month, pfei sensed ^^^ plaintiff's attorney excepted to the bail, giving notice of the the plea be exception, and on the 10th the bail justified, and on the 16th the lity and the Plaintiff's attorney entered the defendant's default. must plead ^^^ Cur. By the exception there was no bail ; and of course pro tunc. Vide Lister v. Wainhouse, Barnes, 92. So IS talcing NoNES V. Gelband. March T. 1824. Supreme Court Penn. out a rule of arbitra Per Cur. If the plaintiff takes out a rule for arbitration be- ^°"' fore bail entered, he waives the bail. But the defendant has no right to enter the rule until he has given bail. 3. Culpepper Agricultural and Manufacturing Society v. DiGGEs. Feb. T. 1828. 6 Randolph's Va. Rep. p. 165. S. P. Grays v. Hines. 4 Mumf. 437 ; Flack v. Eager. 4 Johns. N. Y. Rep. p. 185. So, taking fpj^g defendants appeared without ffivins; special bail and plead- issue on a . . . 5 o & x r plea. ed. Plaintiffs rejoined and the defendants demurred. Per Cur. Green, J. The objection now taken by the appel- lants, that the appellees were improperly permitted to appear, plead and demur, without giving special bail, was waived by the appellants taking issue on the plea, and joining in the demurrer, without making the objection in terms, and the appearance bail was thereby discharged. Plaintiff may waive 4. Paul v. Purall. June T. 1811. 2 Browne's Penn. Rep. p. 20. Held by the Court, that the plaintiff may, in any case, waive his right, his right to special bail and proceed to trial. (H) Liability OF bail.* * Bail are only liable for the sum sworn to, or any lesser sum recovered; Martin V. Moor, 2 Stra. 922. Bail to the sheriff are liable to the whole debt without re- gard to the sum sworn to ; but bail to the action are only liable for the sum sworn to, or any lesser sum recovered, and the court will stay proceedings on the recog- BAIL.— Liability of. ' 79 1. MuRDEN V. PuRMAN, Jan. T. 1821. 1 M'Cord's S. Ca. Rep. p. 128. -TV 1 , 1 . 1 1 1 In an action . -Debt on bail-bond. on the bail The judge charged the jury, that the bail was liable for inter- ^°Jjd^^^^^^ est, from the time the original judgment had been entered up. — be liable to Motion to set aside the verdict for misdirection. mount ihan Per Cur. JYott, /. The bail to the sheriff is liable for the Jf^^ PJ^J^^ condemnation money and costs ; Tidd's Prac. 220. 262; Mitch- when the ell, assignee, v. Gibbon, 1 H. Bl. 76. And may be liable to the fixed, whole extent of his bond; Dahl v. Johnson, 1 B. & P. 205. But he cannot be liable to a greater extent than the principal was when the bail became fixed. If the principal had been taken on the ca. sa., he might, and indeed must, have been discharged upon the payment of the original judgment and the costs. That was the amount then for which the bail was liable at the time, and no more. If the judgment had been on a penal bond, where the interest would continue to run on, he wonld, perhaps, have been chargeable with the accumulated amount. But not m this case. The new trial, therefore must be granted, unless the plain- tiff w411 release the interest on the original judgment, from the time nizance on payment of that sum; Glark v. Bradshaw, 1 East. 86. The liabilities of bail are confined to the cause of action specified in the affidavit to hold to bail ; Wheelwright V. Jutting, 7 Taun. 304. And does not extend to a writ of error ; Yates V. Doughan, 6 T. R. 288. Where error is brought after bail are fixed, proceed- ing by scire facias against them will be stayed, pending in error, only on their under- taking to pay the condemnation money, and costs of the scirefacias, and when there is no bail in error, the costs of the writ of error in the case of affirmance ; Buchan- an V. Alder, et al. 3 East. 546. But where the writ of error was allowed before the bail had become fixed, the proceedings against them may be stayed on their under- taking to pay the sum recovered, or to surrender in four days after affirmance; Spaugv. Monprivato, 11 East, 317. By the Revised Statutes of New York, vol, 2. p. 382. the following provision is made upon this subject : Sec. 31. " The plaintiff in the action shall not be e;ititled to bring any suit on the recognizance of bail ; until — 1st. An execution against the property of tho defendant shall have been issued to the sheriff of the county, in which such defendant was originally arrested, and the same shall have been returned by such sheriff unsatisfied, in whole or in part : and — 2nd. An execution against the body of the defendant, having at least fifteen days between the test and return day thereof, shall have been issued to the same sheriff, and by him returned, that the defendant could not be found within his county," Sec, 32. "Upon any such execution being issued and delivered to the sheriff, it shall be his duty to use all reasonable endeavours to execute the same, notwithstand- ing any directions he may receive from the plaintiff, or liis attorney, 80 BAIL.— To the action. it was entered up, until the return of the ca.sa. against the prin- cipal. 2. Treadwayv. M'Reel, et al. July T. 1801. 2 Johns. N. Y. Cas. p. 340. Srelrate^ -f'er Cwr. We are of opinion, that the bail to the arrest are re- responsible sponsible for the principal sum and interest on the bond, on which dparand'iii *^^^ defendant was arrested, audit would be of dangerous cojise- tereston quence, and deter persons from becoming bail to the sheriff, to the bond. ^ j '.i • -i -t, /> , extend their responsibility further. o. der Ex PARTE, Badgley. Oct. T. 1827. 7 Cowen's N. Y. Rep, 472. Badgley was committed on a ca. sa. in a suit in which Wager a spe^Td °^^^'^^ special bail ; Wager became bail for the limits for Badgley, bail piece is and Badgley escaped. W^ager surrendered him on the bail arrest on a r^^*^^' and he now moved for his discharge, ca. so. and Per Cur. A bail piece which is followed by a ca. sa.. has' lost the bail can., ^ , . .^ n ^ , ^ i • V not surren its lorce, by an imprisonment oi the body on that writ. It creates the relationship of principal and surety, and not of principal and bail. The latter relation is necessary to warrant a surrender. We are clear that a case of surety for gaol liberties, wliich is not mat- ter of record, but exists merely in pais, does not warrant ^a sur- render, any more than the case of any other surety. Broaders v. Welsh, et al. Nov. T. 1820. 2 Nott & M'Cord's S. Ca. Rep. 569. This was a proceeding against the bail. The proof was, a And the is suing and judgment against the principal, a ca. sa., and a return of non est. ^rist\ Verdict for plaintiff. necessary. The defendant appealed, on the ground that the plaintiff should have issued afi. fa. against the property of the principal, and had a return of nulla bona, before he could proceed against the bail. Per Cur. Colcock, J. It is clear that no other execution, than a ca. sa. is necessary, before proceedings are ^had against the bail. Motion discharged. Bradford v. Earl. Oct. T. 1826. 4 Bickg. Mass. Rep. p. 120. S. P. Prescott V. Pettee. Pickg. 330; Champion v. Noyes. 2 Mass. Rep. 48. Onareturn It appeared upon the trial, that the principal died, after the of the ( cution ( °^^ ^itho" i'eturn day of the execution, but before it was filed in the office BAIL,— Liability of. 81 Per Cur. The filing of the execution, is an immaterial fact, bail become Though it should remain in the hands of the officer, yet that would be no objection to the scire facias against the bail, if the proper return is made. The object of putting the execution in the clerk's office, is to preserve it as ev-idence, for the benefit of parties. Bank of Mount Pleasant v. Pollock. 1 Hammond, 36. (Ohio Cond. Rep. 25.) Judgment was obtained against the principal, and scire fO'Cias^^^^^^_°^^ against the defendant as bail. He appeared at the return of the fixed where second scire facias^ and pleaded, that after the return of the ca. sa. p^j dies be " not found," and before the return of the second scire facias^ ^ore the re . _ . "^ turn of the "m'M," the principal departed this life ; and the question was, scire /ada* whether the bail was liable. g/,"'^ ^° Per Cur. Our statute declares, that the bail shall be discharg- ed by surrendering the principal, upon the return of the first sci- re facias., ^^executedj" or the second, '■''nihil.'''' This is a rule of the English courts. It is, however, one principle of this rule, as established in England, that if the principal die, after the re- turn of the ca. sa. non esi^ the bail is charged. It is maintained for the plaintiffs, that as the legislature has adopted, in sub- stance, the English rule, as to the period at which a surrender shall discharge the bail, they have adopted that rule in all its parts. So that if the principal die after the return of the ca. sa. non e.?^, the bail cannot be exonerated. The Court are of a dif- ferent opinion. The statute gives to special bail the absolute right to be discharged, upon the surrender of the principal, at either of the periods specified. The death of the principal can- not prejudice this right. The bail do not undertake for the life of the principal ; but for the surrender if alive. They are dis- charged by his death. Judgment for the defendant. 7. Pearsall v. Lawrence, et al. Nov. T. 1808. 3 Johns. N. Y. Rep. p. 514. Debt on a recognizance of bail. Per Cur. Thompson.^ J. The question presented by the plead- A return of ings, is, whether it be necessary that a return in fact, of non est^l°^ntus,\x^ inventus., upon the capias ad satisfaciendum against the principal, °" ^^^ '^^P^ should be made previous to the commencement of a suit, against made before the bail. The only question which appears to have created any nienmnent Vol. II. 11 82 BAIL.— To the action. of a suit a cloubts ill cases of this kind, is, whether an actual filing, as well gainst the . . /, i-vi , T> « .^ -r b'i!, f.r.;i uS a rcium, was requisite ; (1 iilack. ilcp. p. 393 ; Lutw, 1273 ; ctrk'sir ^ ^^^'- "-^ ' 2 Cromp. 75.) Our statute is explicit, that no suit lice, shall be commenced upon any recognizance of bail, in any civil action, until a capias^ or testatum capias ad sailsfacundxim* shall •have issued against tlie defendant, in the original action, direct- ed to the sherifFof the county in which such defendant was ar-. rested ; and such sheriff shall have returned thereon, that the said defendant was not found within the county; (Rev. Laws, V. \. p. 449.) ; and the want of such return is declared to be a substantial defence, upon the trial against the bail. The issuing of the ca. sa. against the principal is not mere matter of form, for the purpose of charging the bail. The sheriff is expressly required, to endeaver to serve it on the defendant, any directions which he may receive from the plaintiff or his attorney, to the contrary notwithstanding. Judgment for the defendant. Mahurin v. Bracicett. JulyT. 1829. 5 New Hamp. Rep. p. 9. Butadcfec Scire facias ao-ainst the defendant as bail. tive return "^ ° maybea The officer returned upon the execution against the principal, mended. .i i i , , . , . , ■, ^^ t , ^ c that he had given due notice to the bail, but made no return oi non est inventus as to tlie principal. Per Cur. Richardson^ C. J. It has been argued on the part of the defendant, in this case, that the omission to make the return of non est inventus^ discharged the bail, because his liability de- pended upon such a return. But the liability of the bail is found- ed, not upon, the return, but upon the breach. of a contract, that the principal shall not avoid. It is true that bail cannot be dis- charged without such a return, but this is because the statute has made a return the only admissible evidence of the avoidance. The omission to make the return, then, in this case, left no defect in the essential grounds of the liability of bail, but a defect in the proof. And we think, the officer was properly permitted in the court below, to supply this defect by an amendment of his *By tlio R,cv. Statutes of the state of Me\r York, vol.2, p. 382. it is enacted: that, Sec. 33. "In such action against the bail, they may plead that executions against the property and ag.iinst the body of the defendant in the original suit, \ve;e not is- sued as herein directed; or t!)at they were not issued in sufficient time to enable the sheriif to e.^cecute the same ; or that directions were given by the plaintiff, or his atUtrney to prevent the service of the said writs, or either of them ; or that any other fraudulent, or collusive means were used to prevent such service ; and if any 6uch defence be established, it shall entitle the bail to a verdict." BAlL.—LiuhUity cf. S3 return. Another question, raised in this case, is, whether it -was necessary, in order to charge the bail, that his name and place of abode should have been endorsed on the execution against the principal ? This question seems to have been raised under the supposition, that the slatule requires the name and place of residence of the bail, to be endorsed upon the execution, which issues against the principal. But this is not the case ; the stat- ute of June 23, 1818, section 2, enacted, "that the creditor in any civil action intending to charge the bail in such action, shall deliver his execution to an officer with the name or names, place or places of residence, of the person, or persons, who become bail in such action," &c. In practice, Ave do not doubt it has been usual to endorse the name and plnce of residence of the bail upon the execution. But the statute does not require this, and we see no reason why, if the name and residence of the bail be handed to the officer on a separate paper, it would not be as well as if endorsed upon the execution. And it seems to us, that, even if the plaintiff had failed altogether to comply with this requisition of the statute, it would furnish no ground of defence to the bail, provided the oflicer gave him notice, which the statute requires to be given. Armstrong v. Davis. April T. 1791. Coxe's N. J. Rep. 110. Motion to show cause why an exoneretur should not be enter- Tlie rules ed, on the ground that the ca. sa. was delivered to the sherilf of the courts during the term. of West ^ minster pre Per Cur. We know of no other rules of proceeding, respect- '^■a'l >» New ,,,.,.,. r> 1 -I 1 1 • I 1 • ■ "^ 1 Jersey, in ing the liability oi bail, than those which regulate it m the courts respect to of Westminster. Without these,, vre arc without any. I look ^'i'^l''^l^^''^y upon the practice in this case, to depend upon rules of court ; and these rules on reason and justice. On the return of a ca.sa. non est inventus^ the bail is bound ; the extension of the time, upon the sci. fa. I take to be j founded on rules of practice. The proceedings were stayed, and the bail exonerated. 10. Wattles v. Laird. Oct. T. 1812. 9 Jbhns. N. Y. Rep. p. 327. Debt on a recognizance of bail. The plaintiff sued one Stage, as the endorser of a promissory Where the note, and Laird, the defemlant, became his bail. The plaintiff^^^^^J^^xed^ sued the makers of the note, and n/i./a. against them was re- by a return 84 BAIL.— To tha Action. otnonest, turned satisfied. A ca. sa. was issued against Stage, and non est he cannot , plead pay returned. Srmaker The defendant pleaded nul iiel record and payment by Stage, or endorser The question Submitted to the court was, whether the defen- or biu"on^ dant under the pleadings, could give in evidence the money col- Tuufs ^'^^ lected under iheji.fa. against the makers of the note, brought. pcj. Ciir. The defendant could not, by plea-ding, set up any of the matters stated in the case, in bar of the suit on the recog- nizance. The recognizance was strictly forfeited by the return of 7ion est to the ca. sa. and the recovery of the princijpal debt, in another suit, would not discharge the defendant, or his prin- cipal, until the costs of the suit against his principal were also paid. It is for those costs, that the plaintiff must have proceed- ed in this suit. When he came to have his damages assessed upon the recognizance, the defendant might undoubtedly have given in evidence, in mitigation, the recovery of the debt ; and the assessment would have been only for the costs of the suit against Stage : but the judgment would still have heen pro forma for the penalty of the recognizance, and the plaintiff would be entitled to levy on his execution the costs of this suit, and the damages so assessed. Judgment, therefore, must be entered for the plaintiff according to the latter alternative in the case. 11. Collins v. Cook. June T. 1809. 4 Day's Conn. Rep. p. 1. S. P. Howe v. Ransom. 1 Vt. Rep. p. 276 ; Ranlett V. Warren. 7 Mass. Rep. 477; Edwards v. Gun. 3 Conn. Rep. 316. The cxccu, . , . . • • 1 lion against The sheriff having an execution against the principal, after the pnnci ^j^g search returned before the expiration of sixty days, and af- pal may be ^ ^ j j ^ ^ returned in terwards the debtor was seen publicly abroad, and that circum- ble time, stance was known to the sheriff. Per Cur. The question in this case is, whether the sheriff w^as justified in returning the execution after having held it more than forty days, so as to subject the bail— ^has the principal avoided, and has the bail had a reasonable time to surrender up the principle before the return of the execution. In the opinion of the court, the bail having had forty days, is a sufficient length of time, and the return was fairly made. 12. WiNCHELL V. Stiles. Sept. T. 1818. 15 Mass. Rep. p. 230. And the S. P. Stevens v. Bigelow. 12 Mass. Rep. p. 434. bound bv it Scire facias against the defendant as bail of one Clark. The BAIL.— Liability of. 85 plaintiff recites the return upon the execution, that neither the body nor the property of Clark, could be found in the county of H. Plea in bar by the defendant, that Clark was abiding in the county of H.., and was then and thei'e willing to have rendered his body in execution. Demurrer and joinder. Per Cur. The statute makes the return of nnii est i7iventus, \the proper foundation for proceeding against the bail. It would be injurious to creditors, and be the cause of much confusion, if that return were to be considered as open to question by the bail. Fraud vitiates every thing, but the defendant has not alleged any in this case. Plea in bar bad. 13. Carmer v. Weeks, et al. May T. 1808. 3 Johns. N. Y. Rep. p. 244. Per Cur. There is no rule of practice established in this "^H^® "P®,*^ . , 1 , , not be eight court requiring eight days betv\'^een the teste and return of a ca. days be sa. (against the principal) nor do we see the'reason, which should [estand^re render such a rule necessary. turn of a ca. Vide Gillespie v. White, 16 Johns. Rep. 117. bail. 14. Goodwin, et al. v. Smith. Feb. T. 1827. 4 New Hamp. Rep. p. 29. S. P. Hamilton v. Dunklee. 1 N. H. Rep. 172. Per Cur. Richardson, C. J. It must now be considered as A plea by settled in this state, as a general rule, that if the principal die, ^^e princi after a return of non est inventus, the bail are inevitahlv fixed, pal ^assick ... . . and could And the question in this case is, whether the general rule is ap-notbesur plicable to cases, where the priacipa^may have been so sick from ^^^Hhout en the rendering of the iudg-ment against him, until after the return ^angering . his life is of the non est inventus, that he could not have been surrendered bad. without danger of his life. We think the general rule is appli- cable to this case ; and that a plea stating these facts is not good. 15. LoFLiN v. Fowler. Oct. T. 18j20. 18 Johns. N. Y. Rep. 335. Motion to discharge the bail, the principal having been arrest- But not ed and convicted in Vermont, for passing counterfeit money. hal^ee^f Per Cur. If the defendant has been taken out of the power *^f'^^"°"^°f -,,.,,., , the power ot the bail by judgment of law, he ism this respect as if he wasof the bail, dead. And if this be before the return of the non est, the bail ^^ JJ^f j^^ ■will be discharged. 86 BAIL.— To th& Actim. (I) Staying proceedings against. 1. Henderson v. Lynd, bail of Brown. Fall T. 18.11. 1 Martin's Lou. Rep. p. 57. A stay of Held by the Court, that, wherethe principal obtained a stay of P™'j|p*'p",f^^ proceedings, the bail was not thereby released. The principal of die priu stands in the relation of prisoner, whenever he resists the will of not release ^is keeper, he is guilty of an escape, and the bail may take him the bail. in custody. Wheeler v. Raymond. 6 Cowen's N. Y. Rep. p. 582. The Court will stay proceedings against special bail, pending a^ainst^the ^ ^^^'^ °^ error brought by the principal. bail will 'le Btayedpend ingaurit /t\ -n , • of error. (J) PROCEEDINGS AGAINST.* 1. Wheeler v. Raymond. Feb. T. 1827. 6 Cowen's N. Y. Rep. p. 582. Proceed Judgment was for the plaintiff, who proceeded to fix the spe- ings against cial bail of the defendant; and brought a suit against them on bail Will be ^, . . rr.i / ^ i ? i , stayedpendLheir recognizance. 1 he defendant then brought error, putting ofwor"^ in bail in error. And now, Edwards^ for the defendant, moved to stay all proceedings against the bail, till the Writ of error should be determined; and cited, Dunl. Prac. 1139; Tidd, 471 ; 5 Taunt. 264. Per Cur. Take your motion, on paying the costs of the suit against the bail. Quatermans, et al. ads. Hawkins. Nov. T. 1818. 1 Nott & M'Cord'sS. Ca. Rep. p. 323. The plain Debt on a bail bond. This was a summary process. It was ceed against otj'ected, that the proceeding should have been by sci. fa. * By the Revised Statutes of the state of New York, vol. 2. p. 383, it is declar- ed : that, Sec. 35. " In all cases, in which proceedings shall be liad against bail, by scire fa- cias, it shall be necessary to serve such writ, personally upon the defendant, and to have the same duly returned, lliat it has been so served ; and no further proceedings Bhall be had, until such writ shall be so returned." BAIL. — Proceedings against. 87 The presiding judge was of a different opinion, and decreed the baU by for the plaintiff. by debt on .,,,.... 1 1 1 the bond. Motion for a new trial on the objection taken below. Per Cur. Colcock, J. The act says, "the plaintiff may pro- ceed against the bail by sci. fa.'''* Now if it intended to take away the remedy by action on the bond, it would certainly have sz\i\^ shall proceed by sci. fa. and not otherwise. Motion refused. Rice and another v.- Carnes. March T. 1812. 8 Mass. Rep. p. 490. Per Cur. As final iudirment has been rendered in the action, f^^'^'" ^"f^ the bail cannot surrender his principal in court. If the plamtifi bailcannot neglect to sue out their execution, and obtain a return thereof, ^,"^T^"?[ so as that their scire facias be not served upon the bail, within acipal in year from the rendition of the judgment, the bail will be discharg- may upon ed of course : if execution is sued out, the bail may surrender ^be *"'■«/<» the principal to the officer having charge of it ; or he may wait the return of the scire facias, and then niake the surrender in court. Jones v. Dunning, et al. Oct. T. 1800. 2 Johns. N. Y. Cas. p. 74. Scire facias a2:ainst bail. 1- • 1-1 • • ^ • And where I he proceeding against the bail were irregular, the scire facias they are had not been four days in the sheriff's office, but the bail had^J"^^^°^ permitted two terms to elapse. Motion was now made to set will not be • , ,, ,. relieved, aside the proceedings. Per Cur. There have been great laches on the part of the de- fendants. Two terms have intervened and they now come too late. Webster v. Chews, special bail. May T. 1793. 3 Md. Rep. p. 123. Scire facias against the special bail. tion'to"stay The defendant in the original suit, obtained an injunction to PjX^o,!;"!^ stay all proceedings at law against the principal. The plain- ^i suit will tiff, before this injunction was dissolved, issued this scire facias ^cirT/acia^ against the special bail. against bail. 88 BAIL.— To the Action. On motion of the defendant, (the special bail), that all pro- ceedings against the bail should be stayed the court determined that an injunction to stay proceedings at law, against the prin- cipal, would tie up the hands of the plaintiff, so that no proceed- ings could be had against the special bail. Davis v. Gilbert, et al. Nov, T. 1810. 7 Johns. N. Y. Rep. p. 318. Suit on a recognizance of bail. An action Motion to set aside proceedings, on the ground that the suit cognizance Ought to have been brought in the Court of Common Pleas, where of Uail m |]^g original suit was prosecuted. The bail had moved out of the common " '■ pleas, may the COUnty. in this ° P^T Cur. As the bail had removed from the county of Ren- salaer, he could not be sued in the Common Pleas, The suit must, therefore, of necessity, be brought in this court. court. 7. Gardner v. Burnham & Olcott. 12 Johns. N. Y. Rep. 459. And this Action on the bail bond. Sein Motion to set aside proceeding, the same p^j. Q^^^ -pj^g court will relieve bail, on the same terms here terms as the . .... court below as in the court below. The original suit w^as in the Common Pleas of Madison County, and the principal resided in Montgom- ery county. Common pleas costs only are allowed. Vide Davis v. Gillet, 7 Johns. Rep-. 318. 8. BuRTus V. M'Carty, et al. 13 Johns. N. Y. Rep. p. 424. bothTmrties ^^'' ^ur. Each court has its rules of practice as to proceed- reside with ings against bail, and it would be inconvenient for this court to in the juris .... , - . r i t m c dicii>.n",ihey be enquiring into the rules of practice of the dmerent courts ot ed"hii'he^" common pleas. Where the parties reside wuthin the jurisdiction court where of the court of the county, in w^hich the original suit was com- suitwas menced, so that they can be served with process out of that commenced court, they must be sued in that court. The plain "• hfvrasev Bruce v. Colgan. Fall T. 1822. 2 Little's Ky. Rep. p. 284. tionupona The plaintiff may have a joint scire facias on a recognizance jomtrecog of Special bail, against all who are bound in the recognizance, nizancc of ° . , ° ' bail. yet he may have a several execution awarded against either of BAIL. — Discharge of. 89 them, and consequently, neither of them can take advantage of any irregularity in the proceedings against the other. (K) Discharge of. (a) By the Bankruptcy* and Insolvency of the principal. 1. Payson, admr. v. Payson, et al. .March T. 1805. 1 Mass. Rep. p. 283. Process of attachment. The bail of Held by the Court, Sewall, Sedgwick, Thatcher and Strong, Js. ^^^^}^^f^ and Dana, C. J., that bail of a bankrupt are discharged, if not fixed ed if not previous to the certificate. By the express words of the statute, ous tJ'Sr whenever an action is brought for the recovery of a debt, and certificate, pending the suit the defendant becomes a bankrupt and obtains a certificate, he is discharged. What is the consequence as to bail ? The rule is, that the bail are also discharged, if not fixed previous tot he certificate. The attachment in the present case, may be con- sidered as similar to taking bail. But bail are never fixed, nor can be, until judgment is rendered against the principal. 2. Seaman, et al. v. Drake. May T. 1803. 1 Caine's N. Y Rep, p. 9. The principal was discharged under the insolvent act of 25th ^"^^ V"^*^^*" of Sep, 1801. The ca. sa. was returned July, 1802. Motion vent law. that an exoneretur be entered on the bail piece. * The principal becoming bankrupt and obtaining his certificate at any time be- fore the bail are fixed, discharges them ; Martin v. O'Harra, Cowp. 823 ; Wooley v. Cobb, 1 Burr. 245. But the certificate must be first allowed by the chancellor ; Sta- pleton V. Macbar, 7 Tauri, 589. But after it is obtained it relates back ; Walker V. Gilbert, 2 Blk. 811. And as bail have till the rising of the court, on the day on which the second scire facias is returhablo, before they can be fixed, if the principal obtain his certificate any time on that day, the bail will be entitled to an exoneretur; Aylett V. Harford, 2 Black. Rep. 208. And where the plaintiff' and defendant both reside abroad in the same country, a certificate obtained there will discharge the bail on motion ; Ballentine v. Golding, 1 Cook, B. L. 487. No advantage can be taken of the bankruptcy of the principal after judgment obtained against tlie bail ; Heavy- side V. Davis, 8 Mod. 348. The application should be made on motion ; Ray v, Hussey, Barnes, 104- And the production of the certificate is suflicient to support the application ; Harmer v. Hagger, 1 B. & A, 333. But if the validity of the cer- tificate be disputed it ought to be tried ; Woolcott v. Leicester, 6 Taun. 75. The same principle applies to the dischargo of the principal under the insolvent laws; Shakespear v. Philips, 8 East. 433. Vol. II. 12 90 BAIL.— To the action. Per Cur. In the case of Van Alsty ne adsm. Brinkerhoof, Ju- ly T. 1802, we permitted an exoneretUr to be entered on an ap- plication from bail, under similar circumstances. The facts of the case, in support of the motion made this term, are similar, and we think the former decision wa§ equitable and proper in favour of bail, and ought to govern the present.* Rowland v. Stevenson* Feb. T. 1822. 1 Halst.N. J. Rep. p. 149. S. P. Jones v. E.merson. 1 Caine's N. Y. Rep. p. 487. Sow-here Motion for an exoneretur to be entered on the bail-piece. he was dis charged un Held by the Court, that where the debt was contracted in Penn- Eolveiulaw sylvania, and while a suit was pending in this state for the debt, sLf^'^^^'^'^ the party goes to Pennsylvania, and is arrested in Philadelphia, for a different debt, and was discliaro-ed under the insolvent laws of that state, this court will order an exoneretur to be entered on the bail-piece in the suit pending here. state. Franklin v. Thurber, bail of Thorp, Oct. T. 1823. 1 Cow- en's N. Y. Rep. p. 427. S. P. Sicard^v. Whale. 11 Johns. Rep. 195; White v. Canfield. 7 Johns. Rep. p. 117. id the Motion for an exmieretur on the bail-piece. il will not T , . a ^ o 1 T- relieved Judgment against Thorp, Nov. 1S21. In 1822, he was dis- ' '"""o"' charged under the act to abolish imprisonment for debt. With a view to try the validity of the discharge, the plaintiff proceed- * Tho engagement of bail being altcrnat'u'e either to pay the debt, or surrender the princi[)a!, though in i-triclncss they be confined, foV the latter, to eiglit days in term, after the return of the writ against iheni ; Strong v. Barber, 1 Johns. Ca. 329; F.iliot V. Kay; ibid. 334; yet, as it will be allowed at any time ponding the suit and thisthougli they be indemnified ; Brownelaw v. Forbes, 2 Johns. Rep 101; lliey will have the- beneiit of a surrendrjr by an exoncr^ur wherever the law has rendered the surrender impossible; Wood v. Mitchell, C D. & E. 247 ; Meirick v. Vaucher ibid. 50; Cathart v. Cannon, Col. C^s. 60 ; unless tliey be indemnitied ; Coles v. De Playne, 6 D. & E. 246. An exnnerelur will also be ordered, when the principal is disci argcd from the debt, either by having been taken on a ca. sa. and liberated ; Milner, ct al. v. Green, 2 Johns. Cas. 203, or by course of law ; Kane v. Ingraham, ibid. 403, and this is to prevent circuity. The power, which bail have to relieve themselves by a surrender, is preserved tj both, when sued jointly, so long as it re- mains in either ; and each will be entitled to avail himself of it, for their mutual benefit; Bullard and Parkman v. Kibbe and Ludlow, Col. Cas. 51 ; nor does the principal's being in cu.-^tody as a felon, prejudice their right; Bignell v, Forrest, 4 Johns. Rep. 482. But by the death of the principal it is lost ; Olcott v. Lilly, 4 Johns. Rep. 407. BAiL. — Discharge of. 91 ed by 2i scire facias upon the judgment, and a default vras enter- ed. AJi.fa. was then issued, and nullahona returned, and a ca. sa. and a return of no7i eH inventus. A capias ad respondendum against the defendant as bail, v\-as then issued. Per Cur. The motion for an exoneretur must be denied. The rule that where a defendant is discharged under the insolvent act, we will discharge the bail on motion, is grounded on the idea, that an actual surrender would be an idle ceremony, be- cause the principal must be immediately liberated. But the rea- son of that rule does not apply here, where a sci.fa. has been is- sued against the defendant, upon the judgment — been personally served, and a default taken for not pleading the discharge. There is no circuity to be avoided, for were the defendant ap- plying to the court in person, v.-e could not discharge him from execution upon this judgment on the scire facias. 5. Welman, curator, &c. v. Connoly. Spring T. 1812. 2 Mar- tin's Lqu. Rep. p. 245. Motion to show cause why the bail should not be discharged. Kven It appeared, the letters of curatorship had been revoked, and the v'laTnriii'h^v^ plaintiff had no righl, therefore, to prosecute the suit. become dis ^ . . ^^^'^^ 'o pr J Per Cur. This cannot be done in a summary way, it is not ^''''V'*^ ^^^ within the act of 1805. ch. 26. s. 12. The disability of the ''*'"°"' plaintiff cannot be tried on motion to discharge the bail, but must be pleaded in abatement. 6. M'Causland v. Waller, special bail of Lewis. Sept, T. 1801. 1 Harris & Johns. Md. Rep. p. 156. Scire facias to the present term, on a judgment rendered in Contra, in this court against the principal. Maryknd. J. Baili/^ for the defendant, produced a certificate for the dis- charge of Lewis, under the bankrupt laws of the United States and moved that the defendant might be discharged from the scire faciasj inasmuch as ,he could not arrest the principal, and surren- der him in consequence of the said certificate. The Court thought it sufficient and discharged the bail. And see Baggs v. Banker, 5 Binney, 507. where it was held, that where the principal has been discharged under the Bankrupt Law, the bail are entitled to an exoneretur^ upon payino- the costs of the scire facias merely, and not those of the orio-inal suit. 92 BAIL. — To the. actim. Campbell V. Palmer. Feb. T. 1827.6 Cowen's N. Y. Rep. p. 596. S. P. Post v. Riley. 18 Johns. Rep. 54; Me- chanics' Bank v. Hazard. 9 Johns. Rep. 392. Buiihcdis Motion in behalf of Norton, special bail of the defendant, be*pfcaded. Pi^liner, that an exoncretiir be entered on the bail piece. On the 4th of April, 1826, Palmer was discharged, under the insolvent act to abolish imprisonment for debt, in certain cases. He omit- ted to plead his discharge, or avail himself of it in any way. The cause was tried on its merits in August last, a verdict was found for the plaintiff, and judgment perfected in Oct. term thereafter. No suit had been brought against the bail. Pe?- Car. The discharge should have been pleaded, being long before judgment. This not being done, the defendant can- not avail himself of it, and the bail are concluded. (b) By giving tme, (fc. 1. Ratiibone, et al. v. Warren. March T. 1812. 10 Johns. N. Y. Rep. 597. An agree The plaintiff had recovered judgment against one Jonas War- the"p.inci' ren, and they made a written agreement with the principal, for pal, which whom the defendant was bail, in these words; " We do hereby the'SkTor agree, that we will not issue execution for the purpose of fixing changes the ^^g bail against Jonas Warren, on a judgment we obtained the bail, dis ao-ainst him in May last, before the Supreme Court ot this state, charges him ^^^.^ the 20th of February next. New York, 11th Nov. 1808. John Rathbone & Son." This written agreement was made, that Jonas Wan en might undertake a voyage at sea, and on paying $100 by the defendant to the plaintiffs, it was signed by them. The defendant Vv^as arrested after the expiration of the time spe- cified in the agreement on the recognizance of bail ; and the question was, whether upon these facts he was discharged or not. Per Cur. Spencer , J. The plaintiffs who are to be treated precisely as if they were obligees of a bond, have thought prop- er, on receiving a part of their debt from the principal, to enter into a stipulation not to proceed against him, in the only useful way he could be proceeded against, as he appears to have had no property, until after a certain day. The stipulation undoubtedly induced the principal to leave the state, and the situation of the bail was, therefore, materially changed, and his risk greatly in- BAIL. — Discharge of. 93 creased. To me it appears, that on principles of good faith and common honesty, this act must be deemed to have exonerated the bail. The respondent was not only injured by the arrange- ment with the principal, and his consequent absence from the state, and not returning until the time of the surrender had past, but this arrangement was made entirely without his consent. Thomas v. Buckley. Oct. T. 1825. 5 Cowen's N. Y. Rep. p. 25. S. P. BoARDMAN V. FowLER. 1 Johns. Cas. 413. The bail had. become fixed by the return of the ca. sg,. against The court the principal, returnable the 12th of August, 1825. The bail the time of had written to the principal on th.e 10th & 25th of July prece-?"'"'';^"^^^ ding, who was tlien in Edenton, North Carolina, and an the 15th sickness ex of August, received a letter from him, stating that he had been"*^"*"' sick and could not answer the letters. He started for New York and was taken sick on the road, and did not arrive in New York until the 13th of October, and was 'surrendered on the 19th of that month. It was contended, that sickness could be considered as an ex- cuse for not surrendering bail, and Winn v. Petty, 4 East, 102. and Olcott v. Lilly, 4 Johns. Rep. 407. were cited. Per Cur. We should clearly have enlarged the time to sur- render this sick man, had his sickness been known to the bail, and disclosed to us within the eight days allowed, ex gratia^ for .» surrender after the return of the capias against the bail ; and the case would then have finally come to an exoneretur. The facts not being known to the bail vrithin that time, he could neither obtain an order to stay proceedings, nor apply to the Court to give the further time. He has, therefore, been guilty of no laches ; and by ordering an exoneretur, we are only doing directly what would, had not unavoidable circumstances intervened, ultimately have been obtained in another way. We think the bail should not be prejudiced by the sickness of his principal, especiall}^ as the plaintiff will not suffer by his discharge, which may be grant- ed on payment of costs. 3. Hughs v. Hollingworth. 1 Murphy's N. Ca. Rep. 146. mentl?thc Held by the Court, that an agreeijient by an attorney at law P'''"'^^^'^ of the plaintiff pending the suit, that the plaintiff shall release willdS^ the bail, operates as a discharge. baii'^^ ^'"^ 94 BAIL — T9 the act-ion. (c) By not declaring in time. 1. Branson v. Shikn. Feb. T. 1827. 4 Haistead's N. J. Rep. p. 1. Th-e defend Ryall, Oil behalf of the defendant, moved that he might be be discharo- discharged on common bail, because the plaintiff had neglected edoncom f^j. ^^yQ terms, to fde his declaration. mon bail, ' where the Wall Opposed the motion, as being unfounded in the practice, plain I iff has , ^ i i i /> . i • neglected ^^^ unsupported by any rule, oi this court. termrtode '^^^ Chief Justice s?iid, ihnt the Court were all of opinion, the dare. application could not be sustained. The English practice on this subject, depends upon a rule of court, and has never been adopt- ed here, and, we think, ought not to be adopted ; for the defen- dant has- a remedy by the practice act, if the plaintiff neglects to file his declaration in time. Motion denied. (d) By adding new counts. 1. Willis v. Crooker. Oct. 1822. 1 Pickg. Mass. Rep. p. 204. But will by Attachment. Plea liherinn tenementum. While the action was counts, pending the plaintiff added three counts. Per Cur. We think after an attachment or holding to bail, the plaintiff cannot alter his writ, to the injury of a subsequent- ly attaching creditor, or of bail. . (e) By variance. 1. Pell, AND wife v. Grigg. May T. 1825. 4 Co wen's N. Y. Rep. p. 427. claration be The ac ctiam in the capias ad resp. was, " for speaking, utter- for acause j j pnblishinp\ certain slanderous, scandalous and actionable of aciion fc> 1^ t5 ' different words, against the said Joseph and Mary, to their damage, &c." from the ac . , . . , . i- v, eijam, an ea; 1 he declaration was lor maliciously suing out an attachment onereiur ^xxidex the abscondino; debtor's act, against Mrs. Pell, upon false will be en _ « 5 o ' i tered. representations, and affidavits wrongfully procured, and upon the false affidavit of the defendant, &c. Motion that an exoneretur be entered on the bail-piece. The court granted the motion with costs. BAIL. — Discharge of. 96 2. Ryan v. Bradley, et al. Oct. T. 1800. Taylor's N. Ca. Rep. p. 77. S. P. M'Calep v. Maxwell. 18 Martin's Lou. Rep. p. 527. Scire facias on a bail bond. So where •^ the process The writ had been altered from debt to case. i=* aliercd from cltbt By the Court. The bail can be made liable in no other man- to case. ner, than as they have stipulated. It is conditioned to be void, if the principal appears to answer an action of debt; but a dif- ferent form is subsequently prosecuted, consequently the condi- tion of the bond is not broken. Vide Payne v. Britton's executor, 6 Randolph's Rep. 101. where the court held, that wdiere a bail bond recited the writ at the suit of A. B., administrator, while the writ was at the suit of A. B., executor, is not a fatal defect. 3. Walker v. Lewis, et al. Nov. T. 1797. 2 Haywood's N. Ca. Rep. p. 16. Scire facias against bail. On a plea of mil tiel record^ the in-Q^^l^p^g strument wanted the seal. the bond de . . . ^ . Glared on Per Cur. This is a fatal variance; The scire facias states a wantec the bail bond as a ground of the proceeding, and by the act, thfe^^^' scire facias can only issue to charge them as bail, when they have executed a bond, here it wants the material essence of a bond. Robeson, et al. v. Thompson. "May T. 1827. 4 Halst. N. J. Rep. p. 97. Held by the Court, that a variance between the affidavit to So where hold to bail, and the writ, the latter inserting the christian names action set of the plai»tifF, is not a sufficient reason to discharo-e the bail, af. f«rth m the ^ ' b ' declaration er the bail have been perfected ; but where the cause of action varies from et forth in the declaration, is substantially variant from thein^heaffida ause of action in the affidavit, the bail are discharged. '^^'• (f) By death* or imprisonraent of principal. * In Great Britain the bail are discliarged by the deatii of the principal, at any •ne before the return of the capias ad sat.; Sparrow v. Sowgato, VV. Jones, p. 29. ut where the deatli occurs after the return of the capias, they ar ■ fixed; Perry v. erry, 2 Raym. 1452; 2 Stra. 717; Wliitehead v. Gale, Earnes, 106. By the Revised Statutes of the state of New York, vol. 2. p. 3S3. it is provid- ',that, 96 BAIL. — To the Action. BiGNELL V. Forrest. Nov. T. 1807. 2 Johns. N. Y. Rep. 481. S. P. BiGELow V. Johnson. Mass. Rep. 218 ; Cathcart V. Cannon. 1 Johns. Cas. p. 28. Where the The defendant was arrested and detained in prison, on a'charge principal is „ , a ' - o in prison on ol lorgcry. feionyfan Motion that he might be surrendered in discharge of his bail. win bren"^ The habeas corpus having been granted, the prisoner was brought tered onthe up ; and the court on his being surrendered into the custody of the sheriff, who attended, ordered an exoneretur to be entered on the bail-piece. - 2. BiGELow V. Johnson, et al. Nov. T. 1819. 16 Mass. Rep. p. 218. Scire facias against defendants, as bail of one Dalton. wkcrrhe Defendants pleaded, that they had committed Dalton to prison has been by an original WTit, and had left a copy with the prison Iceepcr of a crime, ^.nd had notified the plaintiff. Replication, that Dalton had been convicted of felony, and sentenced to the state's prison, so that the body of the said Dal- ton could not be taken in satisfaction of the said execution. Demurrer and joinder. Per Cur. Parker, C. J. It appears after conviction of a crime, the debtor may be brought in upon habeas corpus and sur- rendered ; and there seems to be no reason why, after sentence, one might not be brought from the state prison, and surrendered in discharge of his bail. Replication adjudged bad. 3. Parker v. Chandler. Oct. T. 1811. 8 Mass. Rep, 264. But the Scire facias against the defendant, as bail of one Sprague. It principal in was agreed that the defendant was chargeable, unless the said prison must ^i 5 i • > i, c i - it. T j. i be surren oprague's having been confined in the state's prison, on a sen- dered. tence for passing counterfeit bank bills, was a sufficient excuse for the defendant's not surrendering him ; and the Court observ- ing that nothing but the act of God can excuse in the case of bail, the defendant suffered judgment to go against him by default. Sec. 34. " When the defendant in a suit shall die, after the return of the execu- tion against his body, and before the expiration of eight days from the return of the process served on his bail, the court shall relieve such bail, on the same terms as if they had surrendered their principal at tho time of his death." BAIL. — Discharge of. ^7 4. Gordon & Spring v. Liepman. Feb. T. 1S25. 3 M'Cord's S. Ca. Rep. p. 49. T, -1 u 1 The death Per Cur. Waites J. This was an action on a bail bond. ofUie piin The principal died after the return of the non est inventus on a^;P«l^^Jjer ca. sa., but before the expiration of the term. The plea was and filing of ' . , , ^ ^ • the nou est that the bail had a right to the whole term, for making a surren- i,,^.entus, der; and that the death of the principal, within that time was a ^j^^^^^^Jj^^^^ good discharge. I was of opinion that the settled practice was bail.'' otherwise. I, therefore, overruled the plea, and the plaintiffs took a verdict. Motion to set aside the verdict for the misdirection of the judge. Per Cur. JVott, J. The motion is refused. This Court con- cur in opinion with the judge below. Olcott v. Lilly, et al. Aug. T. 1809. 4 Johns. N. Y. Rep. p. 407. Motion for leave to enter an exonerefur on the bail piece. But not where the Judgment against the principal and^. fa. to November term principal ia last. At the return oHhe fi. fa. the principal w^as so low, that he [if^^^.^^^ could not be surrendered without endanfferino; his life, and diedl'avebe come fixed. on the 19th of July last. On the 21st of July, the capias on the recognizance was sued out against the defendants. The ca. sa. was issued on the 10th of Febuary, returnable on the 17th of the same month, and had been four days in the sheriff's office. Per Cur. Kent, C. J. There is no case in w^hich the death of the principal, after the return and filing of the ca. sa., has been allowed as a ground for relief. All the cases agree, that after the bail are fixed, dejure, they take the risk of the death of the principal. The attempt for relief has frequently been made and as often denied. The time which is allowed the bail, ex gratia, is at their peril, and they must surrender ; 1 Roll. Abr. 336. C. 1 ; 12 Mod. 601 ; Freem. Rep. 338 ; 1 Str. 511 ; 2 Ld. Raym. 1452; 2 Str. 717 ; -2 Wills. 67 ; 6 T. Rep. 284. There are cases in which the bail have been relieved, on motion, where the principal had become a peer ; Doug 45 ; or been sent abroad, under the alien act ; 6 T. Rep. 246 ; or had obtained a certificate as a bankrupt; 2 Bos. & Pull. 45; but in none of these cases, except in the last, does it appear, that the bail had become fix- ed, when the event happened upon which they were relieved. Vol. n. 13 9S BAlL.—To the action. A number of cases, in this court, haA^e gone so far as to relieve the bcii], if the principal had been discharged under the insol- vent act, any time before the period allowed to the bail, -ex gra- tia, had expired ; but these decisions went upon the principal that the discharge was equivalent to a surrender, and that it would be an unnecessary circuity to have a formal surrender made, since the principal would immediately be entitled to a discharge ; and the latest decisions in England, seem to have gone the same length. Riddeller v. Mitchel, AprilTerm, 1800; Ingraham ads. Kane, Oct. T. ISOI ; Van Alstyne ads. Brin- kerhoff, July Term, 1802 ; Caine v. Drake, 1 Seaman 9 ; 1 Burr. 244; 1 Tidd. 240. To allow the motion, then, upon this ground, would be to change a long settled and uniform course of practice and precedents. BoGGs, ET AL. v. Teakle. Dcc. T. 1812. 5 Binney's Penn. Rep. p. 332. a d!scliarg;e Tcakle v^'as arrested and held to bail in Pennsylvania, for a of the prin jg]-,] Contracted in the District of Columbia, and was dischare;- cipal under ' o the insol ed under the acts of Insolvency of Maryland, where he resid- of Mary ^'^* Held~ by the Court, that the bail are entitled to an exoner- land, an ex etia\ The Courts of Maryland, havino- paid regard to our insol- oneretur j •> o -i r- \vi\[ be en vent lav\'s where they extended to debts contracted out of Penn- tercd. sylvania, we pay the same regard to their laws. Vide Hilliardv. Greenleaf, ibid. 336. Dixon v. Vanegara. May T. 1821. 1 M'Cord's S. Ca. Rep. p. 373. S. P. Olcott v. Lilly. 4 Johns. N. Y. Rep. p. 407. So also, on Debt against the defendant as surety of one John Helfred in a commit ^ limit bond. Helfred petitioned for the benefit of the insolvent mentto / gaol for a debtors act; a suo-o-estion of fraud was filed against him, and the jury found him guilty, and he was committed to gaol. Per Cur. Colcock, J. The bail v/as released from all further responsibility by the recommitment of the principal to gaol. The principal being properly remanded to gaol, and being so legally taken from the custody of his bail by the authority of law, the bail is released from further responsibility. Wherever the law interferes, and in any manner takes the principal from the custody of the bail, it is considered as a surrender. EAIL. — Discharge of. 99 Dunham v. Macomber. Nov. T. 1830. 5 Wend. N. Y. Rep. p. 113. Motion for exoneretur of bail. The action in this case is debt So where on bond. The defendant is a female. The suit was commenced in pj,i of ^hg May, 1829, and two individuals became special bail for the de-''^"^'' '^'^ ^^ fendant. Under the provisions of the revised statutes, 2 R. S. 428, sec. 9, declaring that no female shall be imprisoned, on any process in any civil action, founded upon contract, amotion is now made that an exoneretar be entered on the bail pieces in this case. Per Cur. Whenever a defendant is privileged from imprison- ment in a civil action, the bail are entitled to be discharged. In the case of a defendant, who has obtained an insolvent discliarge, exempting his body from imprisonment, it is of course to dis- charge the bail. The fact of the suit having been commenced previous to the revised statutes going into operation, does not prevent the granting of this application. The lav/ exempting a female from imprisonment affects the remedy only, and not the right of the plaintiff; wherefore the saving clause in the repeal- ing act, 2 R. S. 779, sec. 5. has no application to this question. (g) By proceeding to execution against the principal. ]. Ogier v. Higgins. Jan. T. 1822. 2 M'Cord's S. Ca. Rep. p. 8. S. P. Olcott v. Lilly. 4 Johns. N. Y. Rep. 4G7. Scire facias against bail. The defendant pleaded, that the plain- Bail are not tiff, after entering up judgment, took out Vifi.fa. against the prop- by the plain erty of the principal, before taking out a ca. sa. against his per-^'"(^^^| y^f son, and the bail is therefore discharged. previous to . . . ^ ca. sa. It was .contended on the part of the bail, that by taking bail, it is implied, that the plaintiff intended to look to the person alone of his debtor for satisfaction, and that therefore he is bound to proceed against that, and not against his goods and chattels. Per Cur. Colcock, J. There is nothing in the nature of the contract entered into by bail, which implies that the plaintiff intends to release any remedy he may have for the recovery of his debt. Such a position operates not only to the injury of the plaintiff, but to that of the bail also. Bail is only an addi- tional security to the plaintiff for the recovery of his debt; and the responsibility of the bail is only conditional. They pay the debt, if the debtor does not pay it; or surrender him, if he 100 BAIL — To the action. does not surrender himself. What objection can there be to the plaintiff's proceeding in the first instance against the prop- erty of the defendant? Stewart v. M'Guin. May T. 1823. 1 Cowen's N. Y. Rep. 99. S. P. Smith, et al. v. Rosancranz. 6 Johns. N. Y. Rep. p. 97. Plnintiff Per Cur. Sutherland, J. The plaintiff has his election to execmiora ^^^^'6 execution against the body of the principal, or bail, but gainst both \^q cannot have it against both. This results from the nature principal . c ^ •^ and bail, of the recognizance ot bail. Bryan v. Simorton. 1 Ruff's N. Ca. Rep. p. 51. discharges Held by the Court, that if there be judgment against two, and bail "the oth *^^ plaintiff take one in e:cecution, and discharge him, the bail erisdis are both discharged, charged. Rogers, admr. v. Lee, et al. special bail. Oct. T. 1795. 3 Md. Rep. p. 407. Bail are not Scirc fttcias upon a recognizance of bail, entered into on the bytaking 27th of October, 1798, by the defendant, for and on behalf of out a en. s(i. 2)gyj^j^ j before a justice of the peace of Washington wJiere it is u ' J _ _ _ a o entered, not county, in an action of debt, instituted in the general court, and consentf \Yherein judgment was rendered at October term, 1790. The special bail pleaded payment by the principal, and " that the principal had been taken into custody on a ca. sa.''"' The plaintiff to the first plea, replied non -payment, and to the second, ^'that the ca. sa. was entered and not called by consent." Issue was joined to the replication to the first plea, and a general de- murrer to the replication to the second plea. Judgment on the demurrer. Butler v. Bissel. Sept. T. 1785. 1 Root's Conn. Rep. p. 102. S. P. Ainsworth v. Peabody. 2 Root's Rep. p. 469. Ajudgn^ent Scirefacias on special bail given for one Wales, by the defen- in ravourofjJant. theprinci . , i • i i i palisadis The defendant pleaded in bar, a judgment, which was rendered SeS"^ in favour of Wales, and that the defendant was thereby wholly BAIL.— Discharge of. 101 discharged and exonerated from his said bail bond. The court were of this opinion, notwithstanding the judgment was revers- ed by the Supreme Court of Errors. (/i) By surrender of principal. 1. Gallagher v. Kenedy. Oct. T. 1828. 2 Rawle's Penn. Rep. p. 163. Held by the Court, that on a bond to take the benefit of the ^J^Sst" * Bail excepted to, may surrendtn- their principal; Mitchell v. Morris, 2 Black. 1179 ; Edwin v. Allen 5 T. R, 401. The principal may be rendered by the bail, to the sheriff, or by the defendant himself, or by the sheriff, or by the defendant's at- torney,' in discharge of any undertaking, he may iiave given ; Rex. v. Butcher, Peak N. P. C. 169. So after an assignment of l!je bail bond, the bail may render their principal ; Fdwin v. Allen, 5 T. R. 401. And in the K. B., rejected bail may ren- der their principal fo long as their names are on the bail piece ; Rex v. Tl)e Sheriff of Essex, 5 T. R. 633; Anon. 1 N. R. 138, (note);* Mills v. Head, 1 N. R,,137; Mayo V. Weaver, Barnes, 105 ; Bell v. gate, 1 Taun. 162. Any person may be. come bail for the purpose of rendering 'lie principal ; Bell v. Gate, 1 Taun. 163_ It i* mere matter of form, and may be done by any unqualified person ; Arch. Prac. 205; Jackson V. Trinder, 2 Black, 1180. An attorney's clerk will be sufBcient ; Cooper V. Jagger, 1 Chitty's Rep. 446. One bail cannot make the render ; Steward V. Bishop, Barnes, 60. Wilkin ichnt time bail may render their principal. In the K. B. the render of the principal before the return day of the capias ad sctl. may be pleaded by the bail in their discharge, but if it be not effected till after the return, it cannot be pleaded but the bail may have the benefit of it upon motion ; Wilmore v. Clark, et ah 1 Ld. Raym. 157. A surrender, after tiic return of tlie lalilal, and before the plaintiff has declared, is good ; Flarwood v. Wheeler, 2 Shower, 79. So also a surrender before the appearance day, is good ; Hawley v. Ludlow, Comb. 4. The principal may surrender within eight days after the return of the process by bill against the bail! Smith V. Oxbring, 12 IMod. 650; and the bail lias till the quarto die post to surren- der his principal ; Eaily v. Shealhman, 4 Burr. 2134. In the C. P. the render must l>n made, on or before the quarto die post; Fletcher, el al. v. Aingell. 2 H. Black. 1 17- ' And where the proceedings are by icire facias the bail have until the return of the second scire /ucias to render their principal ; Glym v. Yates, 8 JVIod. 31. And are liable for costs, if notice of the surrender bo not jivcn ; Wells v. Osmond, 6 Mod. Rep. 233. Where the proceedings are by original writ, the bail have to the quarto die post to surrender their principal, provided it be done sendente curia, both in the K. B. andC. P.; Baily v. Shcathman, 4 Burr. 2134. Where bail are sued by at- tachment of privilege, they arc allowed the same period for rendering as in other cases; Fletcher, et al. v. Aingell, 2 Hen. Bik. 1 17. The Court will enlarge the time for renderii);^ the principal. Where the princi- pal had become bankrupt, and was occupi<;d by the commissioners, by examinalioni the court enlarged the time for surrender, that the bail might not become fixed ' Maud V. Jcwett, 3 East. 145. But the bail must pay the costs of the apji^ication ; Glendening v. Robinson, 1 Taunt. 320. So the court will enlarge the time, where the principal is in cus'ody, under an extent, at t!ie suit of the crown ; Hodgson v. Temple, 1 Marsh. 166. Where the principal is sick and cannot be removed, tho 102 BAIL.— To tU action. dayofiho insolvent acts, the surrender of the principal to the custody of term 2ip,,.„ ^i- • pointed for the sheriiT, on the first day of the term appointed for hearing, ^j^^j'!^"^'[,\'^ discharges the bail from his liability on the tond. The surren- bail from his der leaves the bail in the same situation as if the principal had the bond to been actually discharged; and it is only when the petitioner is *'i^^f^?^^" neither discharged nor surrendered, on the day on which he was entofUiein _ ^ 7 j solvent acts, to be discharged, that the condition of the bond becomes forfeit- ed, and the bail liable. 2. Kellog v. Muitroe. Oct. T. 1812. 9 Johns. N. Y. Rep. p. 300, A surrender p^^. Q.^^.y^ ^ person in custody, on surrender, in a civil suit, docs away . . , . , i i i r ^i • i i the effect ofis Committed by a commitMur^ under the hand oi the judge, and anTeTif bTil ^^ detained under the original process, by which he was at first court will not enlarge the time; Wynn v. Petty, 4 East, 102. But time will be granted where he is in custody of the lj,w and cannot be removed ; Winslanly v. Gaitskil, ct al. 16 East. 389. Where the inability to surrender, has originated from the act. of a foreign government, and the principal has been detained abroad, the court will not enlarge the time; Grant v. Fagan, 4 East. 189. By the Revised Statutes of New York,Jvol. 2. p. 380, in relation to the surren- der of the principal in discliarge of the bail, it is enacted. Sec. 21. The bail of any defendant may surrender him, or such defendant may surrender himself in exoneration of his bail, before any justice or judge of the court in which the action is pending; and if such action be in the supreme court, before any circuit judge, supreme court commissioner, or any judge of a county court. Sec. 22. The proceedings to effect such surrender, shall be as follows; 1. There shall be produced to tho officer authorised to accept the same, two cer- tified copies of the bail piece, upon one of which, such officer shall endorse an or- der that the defendant be committed to the custo;dy jf the sheriff, in exoneration of his bail, which shall be delivered to such sheriff, and shall authorise him to commit and detain such defendant, until he shall be duly discharged : 2. Upon producing to such officer tho certificate of the sheriff, that the defendant ha^ been committed to, and rensains in, his custody, by virtue of such order of com- mitment, acknowledged before such oilicer by the sheriff, or proved by a subscrib- ing witness thereto, an order shall bo granted by such officer, requiring the plaintiff to show cause before hira, at such time and place as he shall appoint, why the bail of such defendant should not l)e exonerated from their liability : 3. Upon producing proof of the due service of such order, on the plaintiff or his attorney, such officer shall proceed to hear theallega.tions and proofs of the par- ties ; and if no good cause to the contrary appesjr, slsall endorse an order on the second certified copy of the bail piece, reciting tiie proceedings had before him, and thereby declaring that the bail ot such defendant arc discharged from all liability as such bail, in the suit in which such bail piece was taken : 4. To such certified copy of the bail piece s'lali be'attached t!ie certificate of the sheriff herein before required, with the acknowlodgeiiient or proofthereof, the order to show cause, and tho proof of tho service tiiercof; which papers shall bo immedi- ately filed in tho oilice of a clerk of the court ; and until so filed, the liability of such bail shall continue. I BAIL. — Discharge of. 103 arrested. The surrender does away the effect of the recogniz- ance of ball, and leaves the party under the power of the orig- inal process, in the same manner as if the bail had never been taken. 3. Parker v. Tomlinson. Jan. T. 1801. 2 Johns. N. Y. Cas. This was an action of scire facias, on a recognizance against ^^'^/^^^'^^gj bail. Pending the sci.fa. and before the plea, the principal sur-bepaid. rendered, within the time allowed, and the question was, wheth- er the exoneretur was to be entered with, or without costs. Per Z'ur. The proceedings stay ex gratia; and it is reasona- ble that the costs should be paid before the bail are exonerated. Peace, et al. v. Person, et al., bail of .Morris. July T. 1808. 1 i\Iurphy's N. Ca. Rep. p. 188. The plaintiffs recovered judgment against Morris, and after Contmjn^^ the return of the ca. sa. against him, they sued out a ^a. /«. Una. against the defendants, upon which I he plaintiffs obtained judg- ment, from which the defendants Appealed to the superior court, and the transcript of the record being filed w'ith the clerk, the defendants surrendered Morris. The plaintiffs admitted the sur- render, but prayed judgment against the defendants on the sci.fa. up to the time of the surrender, v.-hich w^as objected to by the defendants. Per CVr. The surrender of the principal being an effectual discharge of the bail, subjects the plaintiffs in the action to the costs. Brown v. Smith. Jan. T. 1812. 9 Johns. N. Y. Rep. p. 84. On a motion for an exonerehir of the bail, in this case, the on- ^'^'^ ^^^^® , eight entire ly question was, whether bunday was to be computed as one of days in the eight days, within which the bail were allowed to surrender. ':®"jg'°^J^ Per Cur. The bail have ein;ht entire days in full term, after ^"""^^y ^^ return of process against them, within which to surrender their principal ; but Sunday is to be reckoned as one of the eight days. 6. M'Clure v. Bowers, special bail of Whiting. Sept. T. 1822. Supreme Court Penn. Per Cur. Tilghman., J. This is a scire facias against special vania?"^^ i04 BAIL.— To the Action. ball. On the 4th day after the return of the writ, the defendan t having the principal in court, ready to be surrendered, obtained a rule on the plaintiff to show cause, why the surrender should not be made, as of the first day of the term, and an exo^iere^itr en- tered on the bail piece. The Court held the case under advise- ment until the 21st of Jan. following, and then ordered that the rule should be made absolute, the defendant ];ayingthe costs of his rule, and also the costs of the sci. fa. On this the principal was immediately surrendered, and an exoneretur entered'. Two questions have been made: 1st, Whether the bail was entitled to four days for surrender, after the return day of the writ. 2nd, Suppose he was, whether the surrender ought not to have been made on the fourth day^ and not delayed till the 21st of Jan.; w^hen the court made the rule absolute. We consider it settled by long practice, that the bail has till the quarto die post to make the surrender. The principal was in couit, ready to be surrendered within four days, and if the plain- tiff had consented to accept the surrender and enter an exonerc- tui'f he v.'ould have been immediately surrendered, but the court kept it under advisement, and we do not think it right that the bail should suffer for it. * 7.. Brownlow v. Forbes. Nov. T. 1806. 2 Johns. N. Y. Rep. p. 101. An exonere Motion that an exoneretur be entered on the bail piece. It tur will be ^yas obiected that the bail were indemnified, and the court should entered . '' even where "ot interfere. demnified. -^^^' ^'^'■''' There is no case in wdiich the court have refused to order an exorerefur, where the surrender is a compliance with the condition of the recognizance. By the universality and uniform application of this rule, it has now grown into a mat- ter of right. 'J'echnically speaking, it cannot be pleaded, and so it is not de jure. The relief is on motion, and not by plea, and the court always require the costs in the suit on the recog- nizance to be paid, and so far, and no farther it is ex gratia. We are not to look into the merits of the original suit, nor are we to enquire whether the bail be indemnified or not. It is enough that the surrender has been made within the time requir- ed by the rules of the court. W^e have before decided, that we would relieve on motion, after a default, if the principal had been discharged by the insolvent act. BAIL. — Discharge of. 10§ Cook v. Beal's exrs. Oct. T. 1794. 1 Washington's Va. Uep. p. (313.)405. In April, 1785, Beal recovered judgment against Willis, for ^yTpe"iar whom Cook was special bail. Upon the return of the capias ^^^^ }^ ^^^ ad satisfaciendum "not found" a scire facias issued against fore or after Cook, on the I8th of May following, who pleaded in bar that^g^^Jg™'"^" on the 2nd of November, 1784, he rendered the body of the said Willis, to the jail of the county of Frederick, (where the writ was served) according to the act of assembly, in that case made and provided, and took a receipt for the body of the said Willis, from the sheriff, &c. Demurrer, that the defendant doth not set forth in his plea that he returned the receipt forthwith to the clerk of the court, where the suit was depending. Per Cur. Pendleton, President. The question is, whether the special bail be discharged by the surrender to the sheriff, with, out his also returning forthwith to the clerk, the receipt obtain- ed from the sheriff. The 4th section of the law, upon which this question rests, points out two kinds of surrender ; the first in Court, upon which the bail is discharged, whether the direct- ' ory part of the clause (which says that the defendant shall be committed to the custody of the sheriff,) be complied with or not. The other alternative is, "that such special bail may dis- charge themselves, by surrendering the principal to the sheriff of the county where the original writ was served." The dis- charge of the bail therefore is completed by the surrender, and the following parts of the clause are directory only, and do not impose a condition, the non compliance with which can prevent the discharge. This appears the stronger, since it begins with a direction to the sheriff what he is to-do with the prisoner, and then goes on to direct what the bail shall do with the receipt. And this construction is ,^arther enforced by a view of the fifth and sixth sections, respecting surrenders, after judgment. The fifth, makes no distinction between a surrender in court and a surrender to the sheriff out of Court, as to the discharge of the bail. The sixth, without taking notice of the discharge of the bail, proceeds to direct what shall be done in the case of a sur- render in the country. The sheriff is to keep the prisoner in cus tody for twenty days ; and the bail is to give immediate notice to the creditor. So that in both cases of a surrender in the country, either before or after judgment, the discharge of the bail is complete, and the plaintiff has a new remedy, if the di- rectory part be not complied with, either against the sheriff, if Vol. II. 14 ICG B A IL. — To the action. he fail in iijs dut^, or rgr.inst the bail, if he neglect to do what -. July T. 18£0. 3 Conn. Rep. 316 S. P. ^ i^i cii V. L0VE1.AD. Kirby, 484. ,. Aciion on a • : ' ■ ^' "' d for the appearance of one '-;- aac Gun. tor\);csii!ie An execution issued ngnin'ot the principfil, \vhicli would expire p^i-^.to!. ^^ ^1,^^ 22^1^ ^^ j^ij,,^^ jg,g_ (j,^ jj^^ ^g^j^ ^^ ,|^^^^ month the offi- cer (r.fler some inquiries aft^i- ll'.e })rincipal, and being told he had gone to the state 01 rk) retiirned the execution non est invaitus. The defendant tendered the body oj the principal at the gaol in New Haven, to the officer. The Hefendant contendi^'J, that the execution was relumed be- fore the re.turn day, for the fraudulent purpose of subjecting him to the penalties of the bail bond. Per Cur. Hosmer^ CJ. The obligation of bail arises i'rom contract and law conjointly, which extends liis privilege beyond the express condition o^ the bond. The statute subjects him, in case of the principal's avoidance, antl a return of non est inventus on the execution. This event does. not take place, on the omis- sion to surrender the principal in court, nor until after the exer- cise qf due diligence, the execution is legally returned. It is un- questionably the officer's duty to exert himself faithfully and dili- ifently for the apprehension of the debtor. If, after the lapse of a reasonable time, he returns the execution with an indorse- ment of 730??. es'^znre/z^jw, this, although liable to be falsified, is prima facie evidence of the debtor's avoidance. A returnj made Avithout the exercise of- due diligence",'- to subject the bail, is fraudulent and void. So if the return is made fairly, before the time limited in the execution, it is at the risk of the officer. 10. Howe v. Ransom. Feb. T. 1S2S. 1 \"t. Rep. 276. S. P. Col- lins V. Cook. 4 Day's Rep. 1 ; Ranlet v. Warren. 7 Mass. Rep. 477. Bat a re It was held by the Court, that the return of the execution anv turn by him.. -u c • • •' at any time "^^s Detore It was spent, ??o?i est was prima facie evidence of the fixeHlie''' ^^°^^^"der in Cour s bond. It was obj.ected it could not beder in Court in discharge of-^,^,^,. his bond. It was objected it could not be: v. Merrill. Eastern Circuit. 16 Mass. Rep. p. 40. Held by the Court, that if one surety ia a bail bond satisfy the surety com judgment' against the principal, before the scire facias served j^J^I^II^'^^'"' upon the bail, he cannot compel his surety to a contribution. ute,^who_^^ The bail was not absolutely indented, in consequence of becom-j^ jutigment ingbail, or because 7zo/i est inventus was returned upon the exe- aS||'»^^^J,ij^^^ cntion. The law gave him the means of avoiding the debt, by foie the p& surrendering the principal before judgment upon the scire facias \^^^^^^l^{^^^ upon the penalty of the costs of that suit only ; Stat. ISIT, ch. hascxpifed. 6. Blue v. Stout, et al. OcL T. 182-1. 3 Cowen's N. Y. Rep. p. 3,o3. A motion was mas made in the cause, to amend the ac cifk??i Special bail of the capias ad respondendum^ which the attorney for the plain- jcct tmhea tiff, by mistake, issued in covenant, when it should have been in J^'j-'^J',^^"^^^^' assumpsit. elmm. This was opposed, because special bail had been put in. Per Cur. The bail had no right to object to the amendment. The motion must be granted on payment of costs. 7. Bruce v. Colgan. Fall T. 18.22. 2 Little's Ky. Rep. p. 284. ... And by Held by the Court, that a a'ecofrnizance of special bail, m- 'ignini^ ihe dorsecl on thp v^-rit in the singular number, and assigned by J„"^],g5j',''lo.^, three, is biadini2; on all, althoufh the names of all are not insert- ly number, ed m tnebody of the recognizance. bound. Hall v. Young, ifarch T. 1825. 3 Piclcg. Mass. Rep. SO. S. P. Wilcox V. Mills. 4 Mass. Rep. 218; Thatcher v. Gammon. 12 Mass. Rep. 269; Meciiakics Bakk v. Hasard. 9 Johns. Rep. 382. Scire facias a^ninst defendant, bail of George Manners. Bail cannot •^ o ' >=> take ad van Defendant ])leaded, that the principal, at the time of the im- tage r,f the r. .-11 1 r ^^'■^'"' of )^ pctration ot the writ, was, and ever since has been, counsel oi nsdicrinn in the king of the United Kingdom c^f Great Britain and Ireland. |;;j>S'"^^ 2nd. JYul tiel record. It appeared by the record that Manners made default. Judgment for the plaintiffs, and the defendant excepted. Per Cur. Parker^ C. J. If it had been shewn upon a plea to 112 BAIL — To die action. the jurisdiction in the original action, that Mr. Manners was a counsel, a judgment against him would have been erroneous, and the bail would be discharged. But that fact does not appear on the record in that action, and the agreement to be defaulted was a waiver of the want of jurisdiction. Judgment affirmed. Grey ads. Young. Nov. T. 1823. 1 Harper's S. Ca. Rep. p. 39. The Court In the progress of the cause, the defendant offered the bail as ^h"r°\1'^ a witness. The court held him incompetent. The defendant bail in order then moved for an order to have him discharged by the substitu- himawit tion of other bail, with a view to render him competent. The ness. Court refused to give an order. Motion to set aside the pro- ceedings. Per Cur. Johnson.^ J. The Court clearly had not the pow- er to discharge the bail ; his contract imposed a legal liability, over w^hich the Court possessed no more controul, than it would over a debt which he owed, when the payment was demanded. 10. Shotwell, et al. v. Morris, et al. April T. 1794. Cox's N. J. Rep. 224. beawftness '^^^ testimony of the bail was offered to prove the hand wri- for, and is ting of One of the defendants, and overruled. not compel lable to be a Per Cur. Kinsey, C J. The law is that bail cannot be evidence Jainstliis fo^ ^is principal, and is not compellable to give testimony principal, against- him. In the latter case, if he is called, he may refuse ; the objection, however, must come from him, and it does not lie in the mouth of the principal himself to make it. In the case before us, he did not object to answer the question, and the Court below were wrong in rejecting the testimony. Judgment refused. (M) Of bail in error. Firfe tit. " Error, Writ of." 1. Raymond v. Merchant. Feb, T. 1825. 4 Cov/en's N. Y. Rep. Construe p. 129. act relative Judgment for the defendant on demurrer. Writ of error, but to bail on no bail in error had been filed. The defendant disregarded the writs of er •. , ■ , ^ ^ ror. writ, and issued an. /a. BAIL. — f/i Criminal Cases. 113 The Court held, that L^. dcA concerning writs of error ; 1 Ilev. Laws, 143. sec. 2. which requires the plaintiff in error to give bail for the debt, damages, and costs, extends to a "judgment for the defendant for costs only. Den, ex dem. Lawrence v. Lippencott. Feb. T. 1799. I Halst. N-. J. Rep. 473. Held by the Court, that upon exceptions to bail in error in an ^"'^I'^rf action of ejectment, they must justify in double the anual value mustjustify ~ ., 1 , in double of the lands. theamomit ot the value •) of the lands Moody v. Baker. May T. 1826. 5 Cowen's N. Y. Rep. 413. Held by the Court, that notice of bail in error, must specify j-Jj. ^i-g sub their names additions and places of residence, and are liable toj'^cttothe . . same excep exception m the same manner as bail to the action. tionasbail >. ' in the ac 4. ^'"''' Den ex dem. Crane, et al v. Hamilton, et al. 2. Penn. Rep. p. 882. S. C. N. J. Held by the Court, that they would nof stay execution, in J^f^.g^'^J^ order to give time to the plaintiff in error to pMt in bail in error, put in bail Richardson V. Backus. Aug. T. 1806. 1 Johns. N. Y. Rep. 494. ^ ^ ' Notice of, It w^as held by the Court, that notice of bail need not state need not 1 r 1 "i J. ^ state before beiore wmom, it was taken. whom bail was taken. (N) Or BAIL IN CRIMINAL CASES.* 1. The State v Mairs, et al. April T. 1795. 1 Cox's N. J. Rep p. 335. The defendants w-ere indicted at the last Monmouth assizes It i^ f^iscre tionarv * The principles in the text agree with the leading English cases. A prisoner committed for treason may be bailed by the court of K. B. P>.ex v. Yates, 1 Show 190. So also they bailed a person iadicted for pettit treason; Barnes case, 3 Salfc, 56. They refused to bail a prisoner who had been attainted of treason, Armstrong V. Lidie, 12 Mod, Rep. 108 The power of the court to bail in cases of murder is entirely discretionary,' whicli they will exercise or i\ot according to the circum- stances of each case, Ilex. v. Marks, 3 East, 163. And where the coroner re- VoL. n. 15* 114 BAIL. — To the action. iviih tlic ^Qj. jj ino.licious maim, on the Coventry act, assault, battery and coutttobail . , ' . ^ inacaseof wounding on which they had been committed to goal. Motion to bail. Held by the Court, that in a case of maihem it was discre- tionary with the court, whether to bail or not ; that it must de- pend on the circumstances of each individual case whether they should exercise that discretion or not, but that where the woun- ding is enormous, and there is no pretence of innocence, it would be improper to admit the prisoners to bail. turns a verdict of murder the court v.-\\l examine the deposition, and if it only amounts to manslaughter they will exercise their discretion as to whether they 'will bail the party. The King v. Markp,.3 East, 163; Farrington's case, T. Jones, 222. And they wil! grant or refuse bail without any reference whether the com- raittment is defective or not, ibid, page 166. The Court refused to bail where the prisoner had been found guilty of murder by a grand jury, Lord Mohun's case, 1 Salk 140. The Court refused to bail where the pa-rty had been committed for suspicion of murder in a foreign country ; Rex v. Hutchinson, 3 Keb. 785; 2 Vent. 314. So also where the prisoner himself liad deferred his trial ; Capt. Kirk's case, 5 Mod. 454 ; 12 Mod. 309. It must appear that a felony has been committed, where a party was charged, with wilfully and maliciously setting fire to a parcel of unthrashed wheat, he was discharged on the ground that it 'was no felony v.ithin the 9 Geo. 1. ch. 22 ; Re.\. v Judd, 2 T. R. 255. But the Court will not bail, on the ground that the offence char- ged is only a misdemeanor, as they will not decide whet her the facts amount to a felony or not, but only whether enough appears to justify the detainer of the party; Rex V. Horngr, 1 J.eacli C.L.270. And although the warrant of commitment for the felony be informal and defective, yet if the corpus delicti appear oti the iho deposi- tion, the court will not bail ; Rex V, Pilarks, 3 East. 157; Rex v. Horner 1 Leach 270. A prisoner, however, has a light to be bailed where the millimius is on a suspi- cion of felony ; Gregory's case, 1 Leach C. L. 98. note. A prisoner was admit- ted to bail, Lis trial having been delayed by the opposite party ; Rex v. Bell, and wife, Andrews, 65. A prisoner charged w ith rape was admitted to bail, who had voluntarily surrendered himself, and the counsel for the prosecution did not object ; Rex V. Lord Baltimore, 4 Burr. 2179; 3 Peters-dorff 's Abr. 212. And they bailed where it appeared the prosecutrix was a girl of bad character, 2 Kenyon's Rep. 172. So also, on a char^^e of robbery, where the prisoner produced a number of affida- vits to provo an alibi; The King v. Greenwood, 2 Slra. 1138. And they will bail in a case of repeated forgeries, on shewing proper cause ; Rudd's case Cowp. 333; S. C. Lonch, C. L. 115. A prisoner cliargcd as an accessory in a felony, the princi- pal liut being taken may be bailed ; Anon. Lofft. 554. In misdemeanors. A prisoner charged with forging indorsements on exchequer hills was admitted to bail ; Mariott's case 1 Salk. 104 And the Court have ad- mited to bail a party found guilty of publishing a libel ; The King v; Bishop, 1 Stra. 9. Formerly it was contendod that no bail could be demanded of a libeller; The King V. Vi'ilkes, 2 Wills. 161. But now the contrary is held ; Butt v. Conant, 1 B. &P. 582 ; 1 Gow. 84. The American cases, in addition to those abridged, in the text are, in the mat- ter of Goodhue before the Recorder (Rikcr) of New York, who was committed un- der the vngrant act in relation to disorderly persons. The Recorder held the com- mit.'iient uiigiit be inquired into on the return oi lUe habeas corpus, and the party admiited to bail ; 1 Wheeler's Crim. Cas. 427. The Recorder states in bis decis- BAIL. — In Criminal Cases. 115 2. State v. Bryan Connor. 1796. 2 Bay's S. Ca. Rep. p. 34. The prisoner was convicted upon an indictment for forg-inff a T'"'^ '^'''^''® receipt at Common Law. after convic Motion that he might be continued upon bail until a motion could be made in arrest of judgment. Per Cur. As long as it is uncertain whether a parly is guil- ty, or innocent of the charge alleged against him such is the humanity of the law he ought to be bailed, but when his guilt is established by the conviction of a jury the probability of in- nocence no longer exists, on the contrary the law presumes him guilty. The discretionary pov. ei of the court then ceases and he ouo-ht not to be bailed. There can be no other suffi- cient security to the community imtii bis case can be ultimate- ly decided by the court of appeals. The People v. Goodwin. Aug. T. lS-20. .1 Vvheeler's Crim. Cas. Manslaughter. Spencer, C. J. It appears to me from the facts before me^ baif where the conclusion is inevitable, that it is quite doubtful whether ''^n/P^'Y" T 1 T I doubtuu the prisoner is guilty or not. In such a case, as I understand uheJicr the the law, he is entitled to be bailed. Vide JVPJYeils Case, 1 Caine's ^Juyor'' Rep. 72 »ot. State v. Drew. Oct. T. 1798. Taylor's N. Ca. Rep. p. 142. S. P. Ex PARTE Taylor. 5 Cowen's N. Y. Rep. p. 39. Per Cur. When a man is found ffuiltv bv a coroners' inquest, '^.'jf^ <^°"''^ ° •' " * ' will look in ion, that Aspinvvall Cornwel! was admitted to bail by judge Hobart, though charg- ed with treason ; that Judge Hobart bailed ]\Ir. Ludlow, charged wi.h rape; t'lat Mr Barnwell was indicted for manslaughter, pleaded guilty, and was continued on bail; that John P. Poillon was indicted for a forgery and was admitted to bail; ibid. In Goodwin's case, 1 Wheeler's Critn. Cas. 443. tiie Court held, Colden, Mayor, that it was a well established rule of law that, where a parson was fully and explicitly charged with a felony, he could not bs bailed, unless there be something presented in opposition to the charge, which may raise a presumption in favour of his inocence ; or at least it must appear indifferent to the caurt or magistrate, cal- led on to bail him whctlier he bo guilty or not. That bail for ofFrfnccs above petit larceny was not nemandable, of cousre ; and that the maxim " every man is presuin ed innocent until he is found guilty" does not. apply to the question whether he is to be bailed or not ; he is to be treated as guilty until some matter be presented in his favonr ; ibid. On a conviction for conspiracy the defendant was brou/htuj* for judgment, but the record not being before the court, no sentence was given, and the defendant was adtnitted to bail ; M'Neill's case, 1 Caino's Rep. 72. 116 BAIL.— To the Action. tothedepo tj^g court may look into the depositions returned; and if it an- sitionsnpon ''. ^ . ' "■ "^ ' i a motion to pear that the jury have drawn .wrong inferences may admit ^'' the prisoner to bail: but the secrecy which accompanies the evidence delivered to the Grand Jury, precludes the court from Icnowing its amount. Bail refused. The Territory v. Benoit. Fall T. 1810. 1 Martin's New Orleans Rep. p. 142. S. ' . Territory v. M'Far- LANE. ibid p. 21G. not bail Indictment- against defendant for an assault with an intent whenU.e to murder. proof IS ev . ' . identixncJ p^r Cur, It cannot be done. Bail is never allowed in offen- I'vo pre ' . " - sumption ces punishablc.by death, when the proof is evident or the pre- gieat. sumption great. On a-coroners' inquest finding a person guilty of a capital crime, the Judges have often looked into the tes- timony which -l^^;-, coroner is bound to record, and when lliey have been of opinion that the jurors had drawn an illogical conclusion, admitted the party to bail. But as the evidence before the Grand Jury is not written and cannot be disclosed, the same discretion and control cannot be exercised, and the judges cannot help considering the finding of the Grand Jury too .great a presumption of the defendant's guilt to bail him We recollect no case in which it was done. Bail refused. 6. The State v. Rockafellow. Sept, T. 1796. 1 Halst. N. J. Rep. 332. S. P. State v. Hill. Const. Rep .S. Ca. 242. The court Indictment -for a rape. nave power ^ to ball in all Motion to bail. In support of the application, the affidavit of the prisoner and other persons, wJas laid before the Court, tending to estab- lish the fact of his inocence, and to disprove the relation of the woman as to the employment of force ; and it was contended, that this Court had discretionary power to bail in all cases, and cited 1 Com. Dig. 558. Bail F.; 4 Bl. Com. 299. Pej- Ctir. This Court may bail in any case, notwithstanding the act of assembly, of tlie 22d of Nov. 1794, which only pro- hibits the sessions and justices of the peace from admitting to bail in cases of rape, and other crimes specified in the act. The discretionary power of the justices of the Supreme Court, BAIL. — In Crirainal Cases. 117 remain unimpaired by that law, and their right to bail when they think the prosecution groundless, or when there are oth- er circumstances which render it proper, still continues as before. In this case, however, we do not think the prisoner has made out such circumstances as would entitle him to this ad- vantage in the proper exercise of our discretionary powers. As* the affidavits, stand upon both sides, the evidence of his guilt is very strong. There are, indeed, some favourable circumstances which no doubt, will receive the fullest consideration, of the ju- ry, by whom the cause v»'ill be eventually tried ; but we do not and we cannot, form a judgment upon the effect of this testimo- ny, or how far it goes to exonerate him from the charge, or to fix the crime on him. This is a matter for another, and a consti- tutional tribunal. Under such c-ircumstances we should scarcely feel ourselves warranted in granting the present application ; but what weighs decicively in our minds against it, is, his escape and flight from the constable. He does indeed undertake tcwshew that he had no intention of flying from jtrstice, but that he meant to surrender himself and take his trial.. This is possible, and we shall not say he is guilty of an untruth ; but the fact is he did not make a voluntary surrender, but was overtaken by the activity and exertions of the sheriff. His letters to the sheriff might have been designed only to amuse him ; .many provisions were made, but no voluntary surrender. We' entertain serious doubts as to the truth of the accusation ; but a dubious case at- tended with an actual escape and fligiit from the officer of jus- tice, decides us against tke aplication. * Prisoner remanded. State v. Ward. June T. 1823. 2 Hawk's N. Ca. Rep. 443. Per Cur. After a conviction for an offence not capital, and And will appeal to this Court, the prisoner is not entitled. to be bailed upon°ap° as a matter of right ; it is a question addressed to the sound dis- P^^^ '".'*^^»'' f- 1 • 1 1 r> 1 "i • 1 T-. • discretion, cretion 01 the judge before - :~ the appeal is taken. But it • In Taylor's case 5 Cowen's Rep.o&.tiio Court held, after a full review of all the authorities, that if there be a reasonable doiiht of the guilt of tha prisoner charged with committing a felony, he ought not to be bailed, even by the Supreme Court. But on inquiry whether they would bail or not, the Court v-'ere not con- cluded by the finding of the coroner's inquest, but thoy will look into the depo- sitions to see whether a crime has been committed or not'. So also, in the case of The Commonwealth v. Trasli, 15 Mass. R.ep.-, the Court held that where 'one was charged with dangerously wounding another, so that his life is in danger, he is to be kept in prison without bail, until it shall appear the danger is over. 118 BAILMENT. appears bail is not allowable after commission of an offence which subjects the offender to corporal punishment ; State v. Connor, 2 Bay's S. Ca. Rep. 84. Kingsbury v. Dickinson. June T. 1808. Supreme Court of Errors, Conn. And the Charge burglary, sheriff may- take bail. Held by the Court, that the sheriff may take bail in a crimin al case, or of a prisoner committed for not finding bail, and re- lease him from confinement. That the sheriff acts in a ministe- rial capacity, and although the proper person to bail, is the justice before whom the party is examined, yet the sheriff may bail, and it has been the practice in the several counties of the state for a long period. Muilmtnt* I. DEPOSITUM; OR BAILMENT FOR NO PARTICU- LAR PURPOSE WITHOUT REWARD (A) Duties oe such a bailee, p. 121. (B) Rights of such a bailee, p. 126. (C) Remedies against such bailee, p. 127. * Bailment ist'efincd to be "a delivery of goods on condition express or implied, that they shall be restored by the bailee to the bailor, according to his directions, as soon as the purpose for which they are bailed, shall be answered ; " Jones on Bail- ment, 1; 2Ld. Raym. 909 ; Story on Bailment. I acknowledge but five species of bailment, which 1 shall enumerate and define , with all the latin names, one of which Lord Holt has omitted. 1. Depositum, which is a naked bailment without reward, of goods to be kept for the bailor. 2. Mandalum, or commission, when the mandatory undertakes without rocom- pense to do some act aboiitihe things bailed, or simply to carry them, and hence Sir Henry Finch divides bailment into two sorts, to keep and to employ. 3. Commodatum, or loan for use, when goods are bailed, without pay, to be used for a certain time by the bailee. 4. Pignori acceptum, when a thing is bailed by a debtor to his creditor in pledge or as a security for the debt. 5. Localum, or hiring, which is always for reward ; and this bailment is either Ist'Locatio rei, by which the hirer gains a temporary use of the thing ; or 2d. Lo- calio operis faciendi, when work and labour, or care and pains are to be performed, or bestowed on the thing delivered ; or 3d. Locatio operis mercium vehendarum^ when goods are bailed for the purpose of being carried from place to place, either asa public carrier or private person. And letting to hire ii again divided into 1st 4 bailment of a thing to be used by the hirer for a compensation in money; or 2d. A letting out of work and labour to be done, or care and attention to be bestow- ed by the bailee on the goods bailed, and that for a pecuniary recompense, or 3d BAILMENT. 119 II. MAMDATUM; OR BAILMENT FOR SOME PAR- TICULAR PURPOSE WITHOUT REWARD. (A) Rights and duties of such a bailee, p. 129. III. COMMODATUM; OR BAILMENT FOR USE WHERE THE THING IS BAILED TO BE USED BY THE BAILEE WITHOUT REWARD. (A) Rights and duties of such a bailee, p. 132. IV. PIGJ\^ORI ACCEPTUM; OR BAILMENT FOR PLEDGE OR SECURITY. (A) Duties of such a pawnee, p. 133. (B) Rights of such a pawnee, p. 134. Of care and pains in currying t'ue things delivered from place to place, for a stipu- lated or implied reward ; Jones on Bailment, 1 ; and Coggs v. Bernard, 2 Ld» Raym, 909. From the obligation containedin the definition of bailment, to restore the thingbail- ed at a ceitain time, it follows that the bailee must keep it, and be responsible to the bailor if it be lost or damaged ; but as the bounds of justice would in most cases? be transgressed if he were made answerable for the loss of it, when a degree of care proportionate to the nature of the bailment has been exercised, it follows that the investigation of this degree in every particular contract is the problem which in- volves the principle difficulty ; 3 pGter.-fdorfF's Abr. p. 359. The author then pro- ceeds to sketch a standard of the degrees of diligence and care necessary to be be- stowed by bailees, and for what neglect and carelessness, they are responsible. — However accurate these rules may be in a philosopliical point of view, the doubt in the application of them remains. , The difficulty of deciding under which class of rules or degrees of diligence the case would be entitled to range itself, is the great point of investigation and deter- mination, and until that be accurately decided, although the theory may be right the practice will probably be wrong. There are infinite shades of care and diligence, from the slightest momentary; thought, or transient glance of attention, to the mostvigilanl anxiety and solicitude but extremes i:i this case, as in most others, are inapplicable to practice; the first ex- treme would seldom enable the bailee to perform the condition, and the second ought not in justice to be demanded, since it would be harsh and absurd to exact the same anxious care, which the greatest miser takes of his treasure from every man who borrows a book or a seal. The degrees then of care for which we are seeking, must be somewhere between these extremes; and by observing tlie dif- ferent manners and characters of men, we may find a certain standard, which will greatly facilitate our inquiry ; for although some are excessively careless, and oth- ers excessively vigilant, and some through life, others only at particular 4imes, yet we may perceive that the generality of rafional men, use nearly the same degree of diligence in the conduct of their own affairs, and this care therefore, which every person of common prudence, and capable of governing a family, takes of his own concerns, is a proper measure of that which would uniformly be required in per- forming ev er contract, if there were not strong reasons for exacting in some of them a greater, and permitting in others a less degree of attention. Here then we must fix a constant determinate point on each side, of which there is a series of val- uable terms tending indefinatfly towards the above mentionijd extremes, in propor- tion as the case admits of ind;ilgence or demands rigour ; if the construction be fa- vourable,, a degree of care less than the standard will be sufficient; if rigourous, a degree more will be required, and iu the first case, the measure will be that caro 120 BAILMENT'. V. LOCATUM) G. _ WHERE THE THING IS LET TO HIRE OR IS BAILED FOR WORK A^iD LABOUR TO BE BESTOWED UPON IT, TO BE CARRIED FROM PLACE TO PLACE. 1st. Locatio rei, by which the hirer gains the temporary use of the thing. • •-- (A) EUTIES OF SUCH A BAILEE, p. 139. (B) Rights of such -a bailee, p. 141. 2d. Locatio operis faciendi. (A^ Duties of such a bailee, p. 142. (B) Rights OF such a bailee, p. 143 3:^. Locatio operis mercium vendariuTn, which is a contract for the carriage of goods ^ (A) IJllGHTS AND duties OF SUCH A BAILEE, p. 145. Ath. Locatio cp,stddia or quasi bailees,]). 151. which every man of common sense, though absent and inattentive, applies to his own affairs ; in the second the measure will be that attention which a man remark- ably exact and thoughtful, gives to the security of the personal property. The fixed mode or standard of diligence may be called ordinary. The degrees on each side of the standard being indeterminate, need not be distir-Tuished by any precise denomination ; the first may be callcJ less, and the second more than or- dinary dilligcncc. In the same manner there are iiinnuo siiaues oi fault and neglect, from the slight- est inattention, or momentary abscence of oiind, to the most repreliensible Eupine- ness and stupidity; these are the omissions of the above mentioned degrees of dili- gence, and are exactly corresponderit with them. Thus the omission of care, which every prudent man takes of his own property,is the determinate point of negligence, on the side of which is a series of variable modes of default, infinitely diminishing in proportion as their opposite modes of care infinitely Lncr.easc ; for the want of ex- tremely great care, is an extremely little fault; and the want of the slightest atten- tion is so considerable a fault, tliat it almost changes its nature, and nearly becomes in theory as it exactly does in praciice, a breach of trust, and a deviation from common honesty. This known and fixed point of negligence is, therefore, a mean betw.een fraud and accident ; and as the increasing series continually approaches to the first extreme, without ever becoming precisely equal to it, until the last term melts into it and vanishes; so the decreasing series continually approximates to the second extreme, and at length becomes nearer to it than any assignable difference ; but the last term being ns before excluded, we must look within them for modes applicable to practice, and these we shall find to be the omissions of such care as a man of com- mon sense, however inattentive, and of such a-s a very cautious and vigilant man respectively take of their possessions. • The constant and fixed mode of default may be called ordinary ; the different degrees may be called the greater, and tjie second less than ordinary ; or the first gross, and the other slight neglect. It is not less obvious, though less pertinent to the subject, that infinite degrees of fraud, may be cor.ceivcd increasing in series froin the term, where the gross neglect ends to a term where positive crime begins ; as crimes likewise proceed gradually from the lightest to the most atrocious; and in the same manner, there are infinite degrees of accident, from the limit of extremely slight nelect to a force irresistable by any human power. Law as a practised science, cannot take notice of melting I BAILMENT. — For no particular purpose wliJiouf reward. 121 I. DEPOSITUM ;* OR BAILMENT FOR NO PARTICU- LAR PURPOSE WITHOUT REWARD. (A) Duties of such bailee. 1. Foster, et al. exrs. v. Esex Bank. Oct. T. 1821. 7 Mass Rep. 479. Assumpsit for a laro-e sum of money deposited in the Bank for "^ banking '. ° .'1 corporation, safe keeping. - who receive It appeared that the casks in which the bags VN'ere packed pus^'sar© lines, nice disciiminations evanescent quantities ; but it does not follow that nctj lect, deceit and accident arc to bo considered as indivisible points, and that no de- grees whatever, on either side of the standard, are admissible in legal disqui>ilions. The different degrees of neglect may be tiius concisely defined and enumerated. Ordinary neglect is the omission of that care,v;hich every man of common pru- dence, and capable of governing a fiiinily, takes of his own concerns. Gross neglect is the \. ant of that care, which every man of common sense how attentive soever takes of his own property. Slight neglect is the omissif n of that dHigence, which every circumspect and thoughtful persons use in securing their own goods and chattels. ' With the same brevity, may he de.'ined and enumerated the duties and responsi- bilities, incident to each species of bailment. 1. A depository is responsible only for gross neglect, or in other word^, for a violation of good failli. 2. A depository, whose character is known to his depositor, shall not answer * Where a picture was sent by the interference of a third person to the defen- dant's house, where it was accidently injured, Abboll^C. X held, no action would lie. The assent of the bailee to receive the tiling bailed is essential ; Luthbridgo V. Philips, 2 Stark, 544. He is responsible for fraud or gross neglect, and must ob- serve the same care as a man of ordinary prudence ; Mytton v. Cook, 2 Stva. tOD9 ; Coggs v. Bernard, 2 Ld. Raym. 913 ; Lane v. Frankiand, 1 Ld. Raym. 64.6. But is not responsible for accidents, over which ,he had no controul.; Garside v. The Proprietors of the Trent and Mercy Navigation, 4 T. R. 401. And the degree of care must be regulated by llie nature of the property; Bootli v. Wilson, 1 B. & .4. 60. There is a distinction to keep, and to keep safely'; the bailee may increase his responsibility by his agreement; Kettle v. Bromsall, Wilies, 119. Or wnen iio spontaneously, or o.liciously proposes to keep the goods of another, he may, in that case, prevent the owner from entrusting llicni v.ith a person of more improved vigilance, for which reason he takes upon himself the risk of the deposit, and be- comes responsible at least for ordinary neglect, but not for mere casualties ; 3 Pc- tersdorffs Abr. 364. It being well established by all the ci>es that a mere depos-i- tory is only answerable for fraud or gross neglect, which i.s considered as evidence of it, and not for sucii ordinary inattentions as may bo co:ipaliblc with good fait!), if the depository himself be a careless and inattentive man, a qucsliorj niay ari-p, whether, if proof b^ given, that lie is in trutirvery tlioughtful and vigilant in hia owft concerns, he is not bound to restitution, if the deposi:be lost through his neg- lect, either ordinary or slight, and it seems easy to support tiie affirmative, since in this case, is that which the bailee uses in his own affairs. It must, hov,-ever, b© Vol. XL 16 122 BAILMEI^T.—Deposiium. liable only •were opened by the cashier or clerk, to deliver 220 doub- lor gross ± j > iiegligence loons on the order of the depositor. Afterwards 32,000 or fraud. for mcro neglect, if he take no better care of his own goods, and they also be spoilt or destroyed. 3. A mandatory to carry, is resjionsiblo only for gross neglect, or a breach of good fuilh. 4. A miindatory to perform a work, is bound to use a degree of diligence ade- quate to ihe performance of it. 5. A man cannot be compelled to perforin his promise of engaing in a deposit or a mandate. 6. A reparation may be obtained by suit for damages occasioned by the non per- formance of a promise to become a depository or mandatory. 7. A borrower for use, is responsible for slight negligence. 8. A pawnee is answerable for ordinary neglect,. 9. The hirer of a thing is answerable for ordinary neglect. 10. A work man for hiremustanswer for ordinary neglect of the goods bailed and apply'a degree of skill equal to his undertaking. 11. A letter to hire of his caro and attention, is responsible for ordinary neg- ligence. 12. A carrier for hire, by land, or by water is answerable for ordinary neglect. To these rules and propositions there are some exceptions. 1. A man who spontaneously and officiously engages to keep, or to carry goods of another, though without reward, must answer for slight neglect. 2. If a man through strong persuasion and reluctance, undertake the execu- tion of a mandate, no more care is required of him than a fair exertion of his ability. 3. All bailees Iiecome responsible for lo.sses by casualties, or violence after their refusal to return the things bailed on a lawful demand. ' 4. A borrower or hirer are answerable in all events if Ihey keep the things borrow- ed or hired after the stipulated time, or use them differently from their agreement. 5. A depository and pawnee arc answerable in all events, if they use the things deposited or,pawncd. 6. An inn-keeper is chargeable for the goods of his guest within his inn, if tJie guest bo robbed by servants or inmates of the keeper. 7. A common carrier, by land, or by water must indemnify the owner of the goods carried, if he be robbed by them. confessed, that tho character of the individual depository, can hardly bo the object of judicial investigation, if he be slightly, or even ordinarily negligent in keeping the goods deposited ; the favourable presumption is, that he is equally negligent of his own property ; but this presumption like all others, may be repelled ; and if it be proved, for instance, that the house being on fire, he saved his own goods, and hav- ing time and power to save also those deposited, suffered them to be burned, he shall restore tlie worth of them to tho owner. If indeed ho have time to save one of two chests, the one being a deposit, and the other his own property, unless that contained small comparative value, and the other full of much more precious goods, as fine linen and silks, in which case he ought to save the more valuable chest, ho has a right to claim indemnity from the depositor for the loss of his own. Still if he commit a gross neglect in regard to his own goods, as well as to those bailed, he cannot be said to have violated his duty to tho bailor ; ibid. BAILMENT. — For no pa/ticular ijurpose wlfh-y.t.!. reward. l'2S were taken from the cask secretly and fraudulently by the cashier or chief clerk, and converted to their own use, Parker.^ C. /., in delivering the opinion of theCovr: remark ed, 1st. Since it had been the practice of the Bank to receive such deposits, the corporation are to be considered the deposito- ry, although the act of the incoporation gives no particular au- thority to receive special deposits. This positioji rests upon common and familiar principles. The master and owner of a bouse or warehouse, allowing his servants or clerks to receive for custody the goods of another, and especially if the practice be general and unlimited, as in the case with Banks in relation to special deposits, will be considered the bailee of the goods so received, and will incur the duties and liabilities belonging to this relation. Not so, if the servant secretly and without the knowledge, express or implied, of the master, receives the goods for such purpose, for no man can be made the bailee of another's property, without his consent ; and there must be a contract express or implied, to induce, a liability. The knowl- edge to be presumed in the present case, establishes such a con- tract between the parties. It will not be disputed, that, if it amounts only to a naked bailment, without reward and without any special undertaking, which in the civil and common law is called depositum^ the bailee will be answerable only for gross negligence, which is consider- ed equivalent to a breach of faith, and every one who receives the goods of another in deposit, impliedly stipulates that he will take some degree of care of it. The degree of care, which is necessary to avoid the imputation of ba i faith, is measured by the carefulness, which the depository uses towards his own pro- perty of a similar kind. For, altough that may be so slight as to amount even to carelessness in another ; yet the depositor has no reason to expect a change of character, in favour of his par- ticular interest : and it is his own folly to trust one, who is not able, or willing to superintend with diligence his own concerns. This principle although denied by Lord Coke^ as in 1 Inst. 89, b. has been received as the law regulating gratuitous bailment., from the luminous opinion of Lord Holt., in the case of Coggs & Ber- nard, to Sir Wm. Jones.- In Hargraves & Bulter's note to Co. Lit. u. 70, and all the cases since have adopted the principle, that a mere depository., without any special undertaking, and without reward, is answerable for the loss of goods, only in case of gross negligence ; which, as is every where observed, bears so near a 124 BAILMENT.— Depo5i7um. resemblance to fraud, as to be equivalent to it, in its effects upon contracts. Indeed the modern decisions require the bailor, if he would recover, in addition to the mnre bailment alleged and proved, to prove a special undertaking to keep the goods safely ; and even then, the depository is liable only in case of ordinary neg- lect, which is such as would be suffered by men of common pru- dence and discretion ; so that if goods deposited Vv'ith one, who engaged to keep them safely, v\'ere r4olen, without the fault of the bailee, he having taken all reasonable precautions to render them safe, the loss would fall upon the owner, and not the bailee ; 2 Black. Com. 453. This certainly is the more reasonable doc-, trine ; for the common understanding of a promise to keep safe- ly, would be, that the party would use due diligence and care to prevent loss or .accident ; and there is no trust or faith, if, not- wilstanding such care, the goods should be spoiled or purloined. More thanthis would amount to an insurance, which cannot be intended, unless there be an express agreement and adequate consideralion therefor. It was urged by the counsel, that the case is brought within the principle of bailment, for hire or reward, since the credit de- rived from the custody of it, is an advantage. If it be so, the principle applicable to this species of bailment, goes no further than to make the bailee liable,. in case of ordinary neglect', so that if be shows he used due care, and nevertheless the goods were stolen, he would be excused. This is the doctrine of Sir Wm. Jones, and was the opinion of Lord Kenyon, .1 Esp. Rep. 315, Finnucanev. iSma?/, which is satisfactory evidence of the law, as two very eminent sergeants acquiesced in his opinion. It is, however, most manifest from the facts in the present case, that his was a mere naked bailment, since no control of the chest, or of the goli contained in it, was left wnth the bank, or its officer. If it be possible to constitute a gratuitous bail- ment, or a simple deposite, this was one ; since their is nothing in the usages of banks, from which any qualities can be attached to this bailment, which do not belong to that class of contracts, generally, where the advantage is wholly on the side of the de- positor. The point then is narrowed to this consideration, whether the corporation, as bailee, is answerable in law for the depredations committed on the testator's property by two of its officers. The proposition that the principal is answerable civiliier for all frauds done by his agents as laid down by Lord Kenyon, in BAILMENT. — For no particular purpose icithout reward. , 125 Doe V. Martin, and by Lord Ellenborough, in 1 Camp. 127, will admit of, and indeed requires considerable qualifications. 'The proposition can be true only when the a'gent or servant is, while committing the fraud, acting in the business of his princi- pal or master. And this was the state of things in both the ca- ses ; and they go upon the principle of an implied authority to do the act ; 1 Black. Com. 429, 431. It is a general rule that to make the master liable for any act of fraud or negligence done by his servant, the act must be done in the course of his employment ; and that, if he steps out of. it to do a wrong, either fraudulently or feloniously towards another, the master is no more answerable than any stranger. The case of innholders, common carriers, and perhaps ship-masters or seamen, are exceptions to the general rule, founded on pub- lic policy. The cashier and clerk were not trusted in this business ; nei- ther they, nor their principal the bank, having any thing to do with the chest, or cask, but to give it a place in the vault, and to lock it up, when the hours of business were over ; and so the cashier must be considered like the case cited in 1 Esp. 135. Thompson v. Saltmarch. June T. 1826. 14 Seargt. & Rawle's Penn. Rep. p. 275. In ever)' case good faith would seem to require of the bailee 'j'ligj^gpf^gi reasonable care, but this depends materially upon the nature and •^"ly bound quality of the thing, the circumstances imder which it is deposi- slight dili ted — sometimes upon the particular dealing of the parties. The^*^"*^®" depository being bound to slight diligence only; and the meas- ure if it is that degree, wdiich persons take of their own con- cerns. VidelJVoU8fM'Cord, 419; and 427 ; Const. Rep. 117. Lafarge v. Morgan. May T. 1822. 11 JMartin's Lou. Rep. p. 462. Held by the Court, Porter, J., that where a person receives ^'°''?''"^' *■ negligence The learned antlior of tJie commentary on liailmcnt, lays clown tiie position that the character of the bailee, has nothing to do with the (]ueslion, in relation to the de- gree of care, he is bound to exercise on the depository, and where iiis character is not hnown, he will beheld to ordinary care, though ho does not bestow ordinary care on iiis own goods. This position, however, is. opposed to thn whole current of authority, both ia England, and in this country; (2 Kent's C. 562 ; note a.) 126 BA UM'EST.—Depositum . in keeping property to keep ■without reward, (for instance promissory delivering notes,) he is responsible for gross neo;ligence, only in keeping "PP^J"^'^^°them, or fraud in refusing to deliver Uiem up. the bailee is liable. 4. Nichols v. Roland. March T. 1822. 11 Martin's Lou. Rep. p. 190. S. P. Bayon v. Prevott. 4 Martin's Rep. 58. Where the Held by the Court, Porter, /., that in contracts which are re- mutiSn^^ ciprocally beneficial to both parties, (where the defendant re- beneficial, ceived a slave to work on his plantations, under verbal agree- ment to purchase,) the same care is expected of th^ bailee which CA'ery prudent man takes of his own. (B) Rights of such a bailee. ■ Thorp v. Burling. Aug. T. 1814. 11 Johns. N. Y. Rep. p. 285. S. P. Brownel v. Manchester, 1 Pickg. Mass. Rep. 232; Emmersonv. Fisk. 6 Greenleaf's Me. Rep 200. Thegener 'pj^g qreneral owner, notwithstanding: the deposit, may maintain al owner of . ° . ' . ° . property a suit against strangers for any injury or conversion of the prop- fe""^ erty bailed. tion against strangers 2. for any in jury to the Waterman v. Robinson. May T. 1809. 5 Mass. Rep. 303. propcrt J . •' -I A naked The possession of the bailee, is considered a good titk against ^*g|j'^^"'^i^^ a wrong-doer. A simple or naked bailee, therefore, has a suffi- interest to cient interest to enable him to maintain an action of trover.* maintain a suit against r, a wrong "• doer. Butler V. Kenner, et al. March T. J 824. 14 Martin's Lou. Rep. 274. The bailee Ueld bv the Court, Martin. J., that the bailee cannot contest cannot •' . , , • ^ -t , ■, • ^'xi • prove a title the title of the bailor to the thing bailed, by proving a title m a third person. in a third person a gainst the bailor. * There is however a late English case which seems at variance with the doc- trine here laid down A person was entrusted with a parcel, containing a bank note, for the purpose of having it booked, to go by a common coach to London ;— instead of doing so, he putii in his own bag, when it was stolen. The Court held that he had no remedy, although responsible to the owner of it : Miles v. Cattle, 6 Bing. 743. But see Story on bailment, p. 110 BAILMENT. — For no particular purpose without reward. 127 (C) Remedy against such bailee. 1. TiERMAN V. Jackson. Jan. T. 1831. Peter's U. S. Rep. 580. Incase of a remittance of a bill to an agent or banker with di- cannot re rections to apply a part of it to the payment of a debt, due to a cover the third person, the mere fact of the receipt of the remittance does a bill or con not amount to such appropriation of the proceeds, as will enable ^'I^^J^g^""" such creditor to maintain an action for it. The assent or agree- gainst a re ment of the remittee to such disposition, seems to be necessary, out his as The same principle applies to a consignment of goods. ^c"^' Vide Mandeville v. Welch, 5 Wheat. 277. 2. Whittier v. Smith, May T. 1814. 11 Mass. Rep. 211. The question whether goods delivered to a bailee, to be deliv- may conn ered over to another, and afterwards an action be brought against ba'i]^e"nt at him by one, who hath right to the goods, the defendant may, any time. pending the action, deliver over the goods to the person, to whom they were deliverable, will be discharged from the action .'' The affirmative is held, where the delivery over is not for a val- uable consideration ; since the bailor may countermand his bail- ment, and a delivery over, after such countermand will not be good. The old doctrine that a delivery of the goods by the second bailee to the original bailor, is no bar to a suit by the first bailee against him, is now exploded. 3. Brown v. Hotchkiss. Oct. T. 1812. 9 Johns. N. Y. Rep. 361. S. P. Hallenback V. Fish. 8 Wend. 547 ; Packard V. Getman. 4 Wend. 613. The bailee is not answerable in an action, unless there has jg ,\ot an°* been a wrongful conversion or loss, by gross negligence, until a swerable in demand and refusal to re-deliver the deposit. Ordinarily this is where there 1 h evidence of a conversion, unless there are circumstances of ex-^'^^yg^gj"JJ° cuse or justification. omcgli gence until a demand 4. and refusal. Ladd v. North. June T. 1807. 2 Mass. Rep. 514. S. P. Per- ley V. Foster. 9 Mass. Rep. 112; Ludden v. Leav- iTT. 9 Mass. Rep. 104, 265 ; 1 Pickg. 232, 389 ; 6 Johns. Rep. 195. The officer making an attachment of personal property on ^pon°^°at 128 BAIL. — Deposifum. attachment process, acquires a special property in the g-oods attached, a.CQ'jires n . . , special p;o which Continues, luitil the attachment is legally dissolved. Du- P"^"^"/ '"'^'^'^rinff this period he may maintain the usual remedies of. trover, goods. . . ■/" trespass and replevin against any wrong-doer, who may violate bis possession. 5, Philips v. Bridge. June T. 1814. 11 Mass. Rep. 242. ?!^frofnM^. When o-oods attached are delivered by the officer into the time, cie hands of a bailee for custody, without any time for the return be- !et1<: Held, that the pledgee mav secure the things pledged, with the thing their increments ; but can proceed only to an entire satistaction P'p'i'?"' . of his demand. Where there is any agreement as to the time with all Its . . . jiicreauius. or mode of sale, it must ordinarily regulate the rights of the parties. 9. Bowman v. Wood. June T. 1SI9. 15 Mass Rep. 534. S. P. Gar- lick V. James. 12 Johns. N. Y. Rep. 146 ; Jarvis v. Ro GERs. 15 Mass. Rep. 389,400. Where the pled^fe was a negotiable security, held, that the Thepled- , , n . ., ■ ^- i. . . -v. ceT:vivcni pledgee may collect the money in hisown name, but has no right lect themnn j^Q Compromise for a less sum, than the sum due on the security. cy 'iiic o:i a ^ , ' _ ■' iDte'ifhiuid He may also sell and assign, and even pledge all his interest, in in his own < i _ , name. ii*cprt\An. 10. Kinder v. Shaw, et al. March T. 1807. 2 Mass. Rep. 398. S. P. OnioRNE V. Marcy. 13 Mass. Rep. 178; Ur- QUARTv. M4vEK. 4 Johns. N. Y. Rep. 103; 15 Mass. c:\iirioi Parsons^ C J. The courts in this country have recognised eWs^ofhis^^^ *^°^^^''^'^' that a factor cannot pledge the goods of his prin- pnncip;;'.. cioal. A factor is but the attorney of his principal, and he is bound to pursue the power delegated to him. 11. SwETT V. Brown. Sept. T. 1827. 5 Pickg. Mass. Rep. 178. S. P. Cleverly v. Braci-iett. 8 Mass. Rep. 150. ec wnnot" Held, that if the pawnee causes the goods, which are pawned, BAILMENT.— For Hire, Work, Conveyances, §t. 139 lo be attached in a personnl suit, ajrainst tac pawnor for his '^■-'"'■''' "^'i debt, his lien, or right to the pledge is extinguished. And he ofhiidcbt has no right to attach other property, until the pawn is returned. ^^.3"' i^b^^ ** However inadequate may be the pledge, as a security, he raust'i -ns the abandon it, before he can resort by atttachraent, to other property ° ' of the debtor. The wife also has no authority, to pledge the husband's goods. V. LOCJiTuM; OR BAILMENT, WHERE THE THING IS LET TO HIRE,* OR IS BAILED FOR WORK AND LABOUR TO BE BESTOWED UPON IT, OR TO BE CARRIED FROM PLACE TO PLACE. 1st. Locatlo rei. by which thz hirer gains the temporary use of thz thing. Vide Civil Code of Louisiana, art. 2C03, 2664. (A) Duties of bailee. The hirer is bound not to disturb the hirer in the use of the thing, during the time, for which it was hired, and to keep it in suitable order and repair, and to pay for extraordinary expenses necessarily incurred upon it. 1. De Tollemer v. Fuller. 1 S. Ca. Const. Rep. p. 121. S. P. Wheelock V. Wheelwright. 104; ^Iiller v. Sal- isbury. 13 Johns. N. Y. Rep. p. 211. The hirer is bound to ordinary care and diligence, and is an- The hirer swerable only for ordinary nen-lect : for the hirino; is mutually "'^ '^i'^K'^ "^ ° to use It beneficial. He is bound to use it with moderation, anrl not ap-modeiatcly ply it to any other use, or detain it for a longer period, than that i^'i^'^lj^gg^j-^® for which it was hired. But, it seems, he is bound to bestow wiiidi it v,\is hived. *Thc bailee of properly kept for hire is only bound to exercise tlial degree ofcarc which should be observed by every prudent man of liis own properly; Finnicano V. Small, 1 Esp. 314;and n hirer of oliatleis may allow another pjrson to use them; Bringlo-.v v. Mcrriec, 1 Mod. 210. Dal!.is,C. J., held, that liic ds fendant wasgutity of gross netfleet, where it a;)peared by the tc-^tiniony, he had been lo.'s mind."iiIof the safety of his customers' property thin his own; Clark v. Kwnsliaw, 1 Gow. 30. And the agister of cattle is liable if ho leave open tiie ^alcs of the field, or suf- fer the hedges lo he in such a bad >tiitc o'repair,t!iat tiie cattle escape, or are injured or stolen ; Broad vatcr v. BlotI, Holt, 547, So are pro; rietors of a dry do-k, in wl) ch a vessel is put for repairs, aiswi-rahic ; Lec!5,e;' a', v. Maestrr, 1 Cainb. 133 So the bailee is also answerable, for (lelivfriiig ihe joods La'.kd lo aa u;ia.;ihorisfd pe»on; Lubbock, <4 oi. v. loglis, 1 Stark, 104. 140 BAILMENT.— iocafum. that degree of diligence, which prudent men use in keeping their own goods, and to restore the article in as good condition as he received it, unless it be injured without his default, by natural decay, or external means ; and in these latter cases, the loss must fall upon the owner, for the general risk is with him. 2. Tracy v. Wood. 3 Mason's Rep. 134. 7 Cowen's N. Y. Rep. note, p. 500. Negligence, Kut negligence, diligence and care, are relative terms ; and care and dil 4t i ,.. , .. , , ^, . •, -»- ,1 jgence are "^"^ Value ol the article, and the means of security possessed by relative the bailee, are material circumstances in deciding: upon the care terms. 1 ii- • • o ^ and diligence required. An article of great value requires the exercise of greater care than one, which is of much less. The temptation to theft, and the necessity for care, are usually in proportion to the value. 3. LocKwooD V. Bull. 1 Cowen's N. Y. Rep. 322. The hirer Held, that there is an implied obligation on the hirer, not can use the only to use the thing with moderation, but to use it for the pur- oni'y^for'thepose for which it was hired. If a horse is hired for the saddle, ^Tici'r ^^^ ^^ ^^^ '^^ right to use the horse in a cart, or carriage, was hiixd. 4. BurruM v. Merry. 3 Mason's U, S. C. C. Rep. 478. rr., , • The case was thus. A. delivered to B. some cotton yarn, on 1 UC loss, 111 ^ . case of fire contract to manufacture the same into cotton plaids, and B. was durin^'its ^ to find the filling and was to u-eave so many yards of plaid, at mannfac jg cents per vard, as was equal to the value of the yarn, at 65 lure, must i. j i i j > be borne Cents per pound. er'of'the The Court held, that it was a sale of the yarn and by the de- materials, livery of it to B., it became his property, and he must abide the the loss in case of fire. 5. MiLLEN V. Salisbury. May T. 1816. 13 Johns. N. Y. Rep. p. 211. S. P. Platt v. Hibbard. 7 Cowen*s Rep. p. 497. Held, that the true exposition of the common law^ binds the hire, only hirer Only for ordinary diligence. As to all accidents naturally liable for incident to the use of a horse in the hands of a bailee, for hire BAILMENT.— For Hire, Work, Conveyances, ^c. 141 •while used in the manner contracted for, the law imposes the excess of ' '■ finlinarydil risk on the bailor. igcncc. Judgment reversed. 6. Schmidt, et al. v. Blood. Oct. T. 1832. 9 Wend. N. Y. Rep. p. 271. S. P. Platt y. Hibbard. 7 Johns. Rep. 497; 19 Johns. 44. Per Cur. Sutherland, J. It appears to be well settled, that And the a ware-houseman, or depository of goods for hire, is responsible *"*"*.'^^ only for ordinary care, and is not liable for loss arising from ac-lgc:nce cident, when he is not default. Where goods are bailed to bethrcTwnon* kept for hire, if the compensation be for house room, and not a'^'^^P'^'^^^^* reward for care and diligence, the bailee is only bound to take the same care of the goods as of his own, and if they be stolen and embezzled by his servant, without gross negligence on his part, he is not liable, and the onus of showing negligenq^ seems to be on the plaintiff, unless there is a total default in delivering up the goods on demand. (B) Rights of such a bailee. 1. LuDDEN v. Leavitt. May T. 1812. 9 Mass Rep. 104. 265. Trover for a yoke of oxen and horse, delivered to the plaintiffAmerere by the sheriff, for safe keeping. ^^[, Curia. The plaintiff was the servant of the sheriff, without I'^ched can * _ _ _ not. main an interest in the cattb^ The special property remained in the tain uover. sheriff who should have brought the action. The general prop- erty was in the defendant, and the plaintiff, therefore, cannot maintain trover. Plaintiff nonsuited. 2. James' admrs. v. Neal's admrs. Fall T. 1826. Monroe's Ky. Rep. p. 369. Held by the Court, Owsley^ J., that where the bailor, in hir- .^.^'c* 'K , •' f. , 1 , ^ . . . , , ., bailor fraud ing a slave, fraudulently conceals its unsoundness, the bailee onulentlycon discovering the defect, may return the slave. ceaisiheun o 'J soundness of the arti It seems a misuser of the thing hired, amounts to a determination of the bail- cle bailed, meut, and the owner miiutaius trover for his prupeity ; 2 Saund. Rep. 47, f. and Botes of Williams, &c. 149 BAILMENT.— LocafuTTv. (•2) Locatio opcris faciendi. (A) Duties of such bailee. 1. Platt, et al. v. Hibbard, et al. Oct, T. 1827. 7 Cowen's N. Y. Rep. 497. Brown v. Dennjson. 2 Wendell, 593. Roberts v. Turner. 12 Johns. Rep, 232. Forwarding Case. It appeared that some ashes, &c. were left at the de- whrlbr"'*' fendant's storehouse in Champlain, which stood on his wharf on ward by the lake, in different parcels, to send to the Canada market, by- are ware "v^'ater. On the 3d of August, one of the defendants told one housemen of the plaintiffs that he thought he could send them to market in- and liable r i ^ ^i /> n • • i i i only for or ^ i^w days. un the loJJowing night the storehouse was entered dinarycare ]h,y thieves, who set it on fire; and it was consumed, with the ashes, &c. The defendants had been engaged in the foward- ing business, but fowarded principally by boats of others which offered. The Court considered this a case of warehousemen, who are not liable if they exercise ordinary care. Seymour v. Brown, May T. 1821. 19 Johns. N. Y. Rep. p. 44. Slaughter v. Green, 1 Rand. Va. Rep. p. 3. Wheat ?ent ^ quantity of wheat was sent to a miller to be exchanged for to a miller ^ J r ^ ^ ■{ c to be ex flour, at the rate of a barrel of flour for every five bushels ot flourfdoe?' wheat. The wheat was mixed with the massof wheat belonging notixome ^^ ^j^g miller and others, and before the delivery of the flour, the proper ^ > r- in- i tyofvhc the mill was destroyed by fire, and ail its contents consumed. I"''^*^""!^"?^® The Court held, uj)on the question as to whose was the loss, ingitwith that the property was not changed ; and since no fault or negli- Others. gence could be imputed to the miller, he was not responsible tor the loss. It was considered there was no sale of the wheat al- though it did not appear to have been understood that the wheat was to be kept separate and returned in flour, but only flour of like quantity and quality to the wheat delivered. 3. Bransard v. DeDOUET. Sept. T. 1827. 18 Martin's Lou. Rep. p. 259. Bailment of -A- bailment of coMon to gin was held by the Court to be of co-ton to mutual benefit 1o the parties, and held the bailee was bound to gin, is of , , . , , , , , , . mutual ben use that care which prudent men bestow on their own concc ns. *^rtie3?* ^^ ^^® ^^^ which consumed the plaintiff's cottoa was accidental BAILMENT.— For Hire, Work, Conveyances, ^c, 143 which he could not prevent by the care which prudent men take of their own concerns, he must prevail. Civil code of Lousiana^ Art 2731.* (B) Rights of such a bailee. BuRDicT ET AL. V. MuRRAY. ET AL. Jan. T. 1830. 3 Vt. Rep. p. 302. Trespass for a quantity of skins, delivered to the plaintiffs ^o^'^^haud be dressed into morocco, under contract for dressing a large coupled number anually, at a price agreed upon. While in an unfinish-^e,.gg^'j„ay. ed state the owners turned them out to be attached and taken '"^^'Mtfi'" away. " The plaintiffs claimed the right to hold them as a /ten gainst. ihc for the labour of dressing them. Se'Ven*' Prentiss, C. J. He who has a special property in goods may ^""^^ °^"*'^* have trespass against him who had the general property, and up- on the evidence the damages shall be mitigated. Thus a bailee of a chattel, for a certain time coupled with an interest, may sup- port the action against the bailor for taking it away before the time ; 1 Chitty. 170. Until the skins were dressed and made into morocco, the plain- tiffs were entitled to the possession of them ; and even then they would have a lien upon the skins, for the price agreed to be paid for their labour upon them. A v/orkman who has bestow- ed his labour upon a chattel, has a lien for the remuneration due to him, whether the amount was fixed by the express agreement of the parties or not ; though it is otherwise, if, by the bargain, a further day of payment was agreed upon, for there the deten- tention of the chattel would be inconsistent with the terms of the agreement ; 5 M. & S. ISO. But here there was no time or mode of payment agreed upon, and the plaintiff might lawfully detain them when finished till the price was paid ; and he had a right also to detain them to earn the price under the contract. * Accordinjj lo tliis codo, if a mechanic furnishes the materials for an article to bo repaired, or v.Touc;lit anew, and the thing be aceidenlally destroyed before com- pletion and delivery, liC bears the loss botli of the materials, and his work ; but if Iho materials arc fiirnisiied by the employer, and the article is destroyed, u-ithout fau't, and bc'ore it is finished, the one loses his u:aterials, and the other his labour. **Jiesperit domino.''^ 144 BAILMENT.— locafttm. 2. Eaton v. Lynde. Sept. T. 1818. 15 Mass. Rep. 242. The first Trover for 80 yards of cotton cloth. article to be It appeared that Slater and E. who were manufacturers, deliv- manufaciurpj ^ quantity of cotton to the plaintiff, a merchant in the ed may ^ •' , ii/.i-ii have trover country, to be wove into Cloth, for which he was to receive a offi'ccTfn"" compensation. One B. received the yarn to weave, when the attaching defendant, beinf; a sheriff, attached the cloth at the suit of A. a some ii) the /• t-» hands of B. Creditor of B. i"crediior^of '^^^ Court held, that the special property was in the plaintifl B. who w^as the agent of Slater & Co., and therefore gave judg- ment in his favour. 3. Hallenbrake v. Fish. Jan. T. 1832.8 Wend. N. Y. Rep. 547. In trover a Trover for a bridle and saddle, entrusted to the keeper of the gainst an i^n by the plaintiff his guest, w'hen it was stolen, an actual ' Savage^ C. J., delivered the opinion of the Court, and said conversion t]^gi.g ^an be no doubt that the defendant would be liable on the must be proved; but facts presented, in an action upon the case, upon the custom ; but on*thcVus if the same rule is applicable in trover against an innkeeper, then torn it j^^ actual conversixm must be proved ; but if the ffoods were lost would be - , . , J , ^ . . Til different, or stolen by accident, the carrier is not liable. , 4. QuiNTON V. Courtney. April T. 1793. 1 Hay. N. Ca. Rep. p. 40. Inn-keener The inn-keeper in the present case was held liable for money liable for stolen out of the saddle bags of the guest, which he had deliver- money stol i i i • , i en from the ed to the Servant, although neither the servant nor master had Iltliou h^f^^^y i^f'^'-'raation of money being in them.* norant of money be 5. mgmiiem. ^^^^^ V. WiGGiNS. May T. 1817. 14 Johns. N. Y. Rep. p. 175. S. P. Newton v. Anson. 1 M'Cord's S. Ca. Rep. p. 509. An inn Where wheat in a sleigh, is put into the outer house appur- keeper is tenant to the inn, and used for such purposes, and afterwards is liable for ' i i i i • i i r ■wheat stol stolen, the inn-keeper was held liable for the loss. en from a building ap ^ Local io custodos. or receivin? goods on dcposil for hire, includes affisters of cat- purtenant to the inn. ^'^' ware-liouscmcn and wharfinger.*. Story 'sCom. 285. And to these maybe at'ded aclass of bailees, known in this country by tlic names of forwarding men, or mer- chants. They are all re?ponsiblc for the want of good fdi!h,and of reasonable care and ordinary diligence, and not to any greater extent, unless the business and du- ties of carriers be attached to their other character ; but inn-kee|iers form an ex- ception to the rule, and are held as strictly as carriers ; 2 Kent's Com. 50! -^t I BAILMENT. — For Hire, Work, Conveyances, ^-c. 145 Newton v. Anson. 1 M'Cord's S. Ca. Rep. p. 509. So, where the plaintiflf stopped at the house of the defendant, j;^^"jg^j.^P"^' with three horses and two servants, and the ostler was desirous horse stolen of locking the door, but the servants of the plaintiff were desir- the servant ous of sleeping in the stable, and desired him not to lock it. ^esirel thf One of the horses being stolen, the owner brought his action for door to be , 1 r 4-1, u unlocked the value oi the horse. that he Huser. /., delivered the opinion of the court, and observed, P'g''' ^^^*P • • ^ r ^ ^ ^ t ' HI the Sta that whenever it is doubtful whether ordinary care has been ble. used or not, the presumption is against the bailee. It has been held, that when the goods of the guest were plac- ed in a chamber, and the ^ey delivered to him, that the inn-keep- er was responsible for the loss ; Moore, 78. 158 ; Cro. Eliz. 285 ; Salk. 18. Had, therefore, the stable been properly constructed, and the key delivered to the servant of the plaintiff, the defen- dant must have been held responsible. 3(i. Locatio operis mercium vendarium, which is a contract for the carriage of goods for hire. • (A) Rights and duties of such a bailee. Civil Code of Louisiana. Art. 2722. 2725. 2929. By this code common carriers are not liable for losses resulting from superior force, as robbery, for that comes within the dam- num fatale of the civil law. 1. DwiGHT v. Brewster. Sept. T. 1822. 1 Pickg. Mass. Rep. 50, Orange County Bank v. Brown. 3 Wend. N. Y. Rep. 158; Satterlee v. Grant. 1 Wend. Rep. 277. A private person, who contracts for the carriage of goods, A private will incur no responsibility beyond that of any other bailee for P^,po"s"°i* hire. A common carrier, is one, who undertakes to carry aoods^^^^a'^ie''' generally for hire as an employment, and holds himself out to o/ca"rien the public as such. If the proprietors of a stage-coach for pas- sengers, carry goods also for hire, they afe, iji respect to such goods, to be deemed common carriers.* Orange County Bank v. Brown, 1 Wend. 85. ^C.J.Besl, inalatecaso in England places the liability of coach proprietors ' carrying passengers, and their baggage, upon the footing oi common carriers, as to their baggage ; Brook v. Pickwick, 4 Bing. Rep. 218, 222. Mr. Bell considered this the true dostrine. But see Story on Bailment, 324. Vol. II. 19 146 BAILMENT.— Xocfl/wm. Walter t. Brevv'er. T^Iarch T, 1814. 11 Mass. Rep. p. 99. S. P. King v. Lenox. 10 Johns. N. Y. Rep. p. 235; Reynolds v. Tappen. 15 Johns. Rep. 370. Thenr.-n Where the owner of a ship employs it on his own account generally, and receives goods on board for freight, for the ac- cr m •;. ve? sel iiOl i:a c^unL'ss'" c^nimodation of a particular individual, not for persons general- cn2"ii;cd ly he Will iiot bc responsible as a common carrier : but only as general! y ill " . . . "^ the busi a mere private earner ; because he does not hold himself out as engaged in a public emi^loyment. ncs3. 3. Martin r. Salem L\s. Co. March T. 1807. 2 Mass. Rep. 429. S. P. De Peyster v. Columbian Ins. Co. 2 Caine's N. Y. Rep. 85. Destruction Held, that the destruction of a ship's bottom, by worms in the bottom oy course of a voyage is not a peril of the sea, upon the ground of worms in jjg beinff a loss by ordinary Vv-ear and decay. the course o .' J J -if a voynge is not n per 4. il of the sea. Garrigues V. CoxE. 1 Binn. Penn. Rep. p. 502. A loss of goods at sea by rats, w^as held a peril of the sea, where there had been no default in the carrier.* 5. Elliott, et al. v. Rossell, et al. Jan. T. 1813. 10 Johns. N. Y. Rep. 1. S. P. Murphy, et al. v. Staton. 3 Mum. Va. 239; Barnewell v. Hussey. 1 Const. Rep. S. C. 114. in^'^mer Case. The defendants were merchants, residing at Ogdens- clKintsr-re burgh, and owners of the schooner Called the Experiment, and riers on land sailed to and from different places on lake Ontario, Ogdensburgh ^•r Tl^ r ^'^^ Montreal. The master agreed to take a quantity of ashes being no dif from the Genesce river, to Montreal, at $2 80, free of expense, tv.een caniat Ogdensburgh, and agreeing to forward the same by scows, ers by iaiAl from the latier place. One of the defendants being present, and tnd waier. „ . d i j confirming the contract. The scow was lost by splitting on a rock, on the shoals, with- in sight of Montreal, in the Montreal rapids, by which accident she was lost with her cargo. Kentj C. J. The defendants were common carriers, in the * But see Aymes v. Aster, 6 Cowen's Rep. 206. BAILMENT, — For Hire, Work, Conveyances, ^c. 147 sense of the law, and therefore liable for the safe delivery of the goods, in all but the excepted cases of the act of God, and public enemies; and there is no distinction ijetween a carrier by- land and water. Masters and owners of vessels are liable, as common carriers, on the high seas, as well as in port ; and all the books and cases, lay down the vu.\e generally, and apply it as well to shipments, to or from a foreign port, as to internal com- merce. The marine law is equally strict in its control of the master, with the custom of the realm, and upon the same principle, of public policy, a master of a vessel, or common carrier, by the almost universal law of nations, as well as the common ]?r,v of England, is chargeable for all losses, not arising from inevita- ble accident. If, therefore, according to iJoccu.?, a the ft be com- mitted on board, the master is answerable, like an inn-keeper, though the loss happen without his fault. So if the ship strike 071 a shoal, unless it he by the violence of winds or storm, he is liable, because a careful navigator would have avoided the accident. 6. Roberts v. Turner. May T. 1815. 12 Johns. Rep. 232. S. P. Platt V. HiBBARD. 7 Cowen's Rep. 497; 1 M'Cord, 157, 439 ; 1 Nott & M'Cord, 19 ; Sheiffelin v. Har- vey. 6 Johns. Rep. 170; Elliott v. Rossel. JO Johns. Rep. 1; Allen v. Sev/all. 2 Wend. 327. He is in fault, if he has not foreseen what he ought to have vessels lia foreseen, with due dilig;ence. ' bleascarri ' '^ eis. and ara Emerigon, (Tom. 1. 373, 377.) says, it is so dimcult to dis- jf f*^"!^ ^^ cover the fault of a mastet of a vessel, that he is held responc:- foroee whai ble for every slight negligence. In short, the master, in conse-up^^'fjg^* quence of his compensation, is answerable for all damage which seen, the cargo receives, unless it proceeds from an accident which he could not foresee or prevent. There is therefore nothing peculiar, in' what is termed in the English law, /As cuctom of the reahn. — The civil law, the source, in this instance, of the marine law, was equally guarded, and placed masters of vessels and inn- keepers under the like responsibility. The courts in this country have always considered masters of vessels, liableas common carriers, in respect to foreign, as well as internal navigation. In M'Clure v. Hammond, (i Bay's Rep. 99.) the defendant undertook to bring a quantity of tobacco, from Augusta in Georgia, to Charleston, and the vessel was driv- en ashore on the coast, during the voyage ; and as the loss did 148 BAILMENT.— loca^wm. not appear to have arisen from inevitable accident, he vras held liable as a common carrier. So in Bell v. Reed, et al.^ (4 Bin ney, 127,) the defendants were made liable as carriers, for goods lost on a voj-age from Fort Eri, In U. C, to Penn., though the loss happened on the Canadian shore. The dangers of the rapids in the river v»'ere at the risk of the common carrier, as much as the dangers of a broken precipitous road. The loss mast have arisen from extraordinary causes, as winds, storms, lightnings, to bring the carrier within the ex- ception. 7. Philips V. Earle. March T. 1829. 8 Pickg. Mass. Rep. 182. S. P. Malpica v. M'Kown. 1 Miller's Lou. Rep. 248. This was an action against the owners of the New-York mail coach, as carriers to recover the value of a package of laces lost in carrying. Parker, C. J., delivered 'the opinion of the court, and re- marked, that by the authorities, it was unnecessary to inform the defendant of the value, unless apprised of a limitation to their liability. The receipt of it by their agent, who entered it on the way-bill, is sufficient t6 charge the defendant for the loss of ^he lace on the way. 8. Orange County Bank v. Brown. May T. 1832. 9 Wendell's N. Y. Rep. 85. The carrier The action was for the loss of several packages of bills con B peel of the Gained in the trunk of a passenge/, on board of a steamboat. reward he pg^ Qj,._ The Carrier may be liable for hassape. as used in r6Cftivcs, -^^ , T ■ -re 1 r^ • Nothin? Case upon promises made to the plaintiti and one Cnvne. — nn protect The defendant pleaded in bar, that after making the promises^ .u"'" cmui and before the commencement of this suit, he became a bank-cateofdis rupt, and a commission was duly issued against him, &c. ; that^^^'^^' he conformed to all things, &c., that all his estate and effects were surrendered, &c., and one Cook, the agent of the plaintiff, was appointed with the consent of his other creditor's assignees. It appeared that the assignee squandered away the estate of the bankrupt, and never accounted either to the creditors, or the commissioners. Per Cur. This is certainly a very hard case upon the part of the defendant. All his effects were taken away from him, de- livered to an assignee appointed by his creditors, and that as- signee, the same man whom the plaintiff had made his attorney, for the collection of this very demand. But however hard we may consider his case, we are bound to pronounce his plea an insufficient bar to the plaintiff's action. Nothing arising under a commission of bankruptcy, can protect the bankrupt, but a cer- tificate of his discharge duly obtained. Plea in bar bad. 4. LuMMUs v. Fairfield. May T. 1809. 5 Mass. Rep. 248. Action on the case upon a promissory note. Even where Plea in bar by the defendant, that since the date of said note, pro\^s un and before the commencement of this action, he was duly dis- ^^."^ •■^^ com . mission, charged under a commisiion of bankruptcy, and all his estat'j and effects assigned to B., chosen by the creditors, of whom the plaintiff was one, and that Lummus had proved said demand under the commission, and had received a dividend. Replica- * But they will not on the mere issuing a commission of bankruptcy against hir; ', M'Maeter v. Kell, 1 Bos. Sl Pul. 302. Vol. II 21 162 BANKRUPT.— Prm/cge^ of. tion that the defendant had not obtained a certificate of dis- charge agreeably to the law respecting bankriq^ts. Per Cur. Parsons^ C. J. It is our opinion that the ac- tion is not barred, the defendant not having obtained any certifi- cate of dlschdHQe. Replication adjudged good. VI. OF THE BANKRUPT. (A) Rights of. 1. Stanley v. Duhurst. Sept. T. 1793. 2 Root's Conn. Rep. 52. nia*after^^ Action of the case for attaching the plaintiff's goods. Plea assigning in abatement that he resigned all his estate, interest and debts, ty^haye^an i^^^o the hands of commissioners, and that he had no right to action for a i^aintain this action, the cause of which accrued before the pas- tort, commit ... led beioie. Sing of the act of insolvency. Per Cur. The plea in abatement is insufficient. This action is founded in tort, and not on contract, and was not transferred by said assignment to the assignees. (B) Privileges of. 1. Hatten v. Speyer. Feb. T. 1806. 1 Johns. N. Y. Rep. 37. Is protected Special action on the case against Speyer a bankrupt. claims of all It appeared Speyer was attorney in fact for the plaintiff, and creditors be had received sums of money belonging-to the plaintiff, to be put tfb&^k^^^ out on bond, and mortgage ; but that he failed and neglected cy. so to do. Speyer became a bankrupt, and was regularly discharged un- der the act. On his examination before the commissioners, ke stated the plaintiff to be, "a creditor for $1,400 dollars, which was to have been secured by a mortgage." Per Cur. Livingston^ J. The question is, whether a person, ^ho' has received money prior to his bankruptcy, under a prom- ise to put it out, on bond and mortgage, and which he failed to do, be liable, notwithstanding his certificate, in 2. special action on the case for such neglect } A bankrupt being compelled to surrender all his property, for the benefit of his creditors, and having done so fairly, is entitled to be protected again«t the claims of all, who were creditors 6e BAl^KRJJVT. — LiahiUHes op' 163 foYQ the act of bankruptcy. He is discharged from all debts due by him, at the time he became bankrupt, and from all which were, or might have been proved under the commission, and this debt was clearly provable. 2. Baker v. Wheaton. Oct. T. 1809.5 Mass. Rep. 509. Assumpsit upon a promissory note made by the defendant, So a cevtifi payable to one Chandler, or his order, and by him endorsed to charge un the plaintiff. der the acts The defendant pleaded in bar his discharge under the insolv-cy oftlic . sttite of ent acts of Rhode-Island, and he avers at the time of said dis- Rhode charge, and before and after, the propeirty of said note -vvas in ^*''*"'^- Chandler ; and that he and chandler were citizens of said state, and that after the discharge, Chandler endorsed the said note to the plaintiff. Per Cur. Parsons, C. J. We are of opinion, that a regu- lar discharge of the defendant from his note, pursuant to the laws of Rhode-Island, is a good bar to an action brought here, by a citizen of this state. (C) Liabilities of. 1. Frost v. Carter. April T. 1799. 1 Johns. N. Y. Cas. p. 73. S. P. BuEL V. Gordon. 6 Johns, Rep. p. 126 ; Haddon V. Chambers. 1 Yate's Rep. p. 529, The defendant in 1792, grave the plaintiff a promissory note, "^'^t l^'^';!^ 'to i i J 5 rupt 13 lia payable in 90 days. The plaintiff endorsed the note, and it was ble to an ea negotiated. It was not paid when it became due and the defen- pj^y^his dant was afterwards discharcred under the insolvent act. At the ""te after tlie UTS time of his discharge, the note belonged to one Mercer. Sub-chaige,and sequently in 1794, the plaintiff paid $3,000 on the note, and pS^^STS^ took it up, and then brought the suit to recover back the money, discharge in bar to Per Cur. Kent, J. The discharge, which the defendant now'Jie'^^i'""- sets up in bar of the plaintiff's right of action, extends to such debts only, as are due at the time of the assignment of the in- ' solvent's estate, and the debts contracted before that time, though payable afterwards. So that although the plaintiff was duly fixed as indorser, prior to the defendant's discharge, yet until he paid the holder of the note and had taken it up, he could not have a certain and ascertained debt due to him from the defen- 164 BANKRUPT.— Liabilities of. dant, and consequently was not entitled to claim it from the as- signees of the defendant. We are of opinion, the discharge of the defendant cannot be a bar to a recovery in the present suit. 2. Hendricks v. Judah. May T. 1804. 2 Caine's N. Y. Rep. 24. A bankrupt Action on the case for the use and occupation of a house. IS not dis _ _i charged by Thc defendant hired a house from the plaintiff, from the 1st of catJ'from a ^^^^y, 1800, to the 1st of May, 1801. In Sept. 1800, the defen- r."rvf-^"^"' tlanr became a bankrupt and duly obtained his certificate. To recover three quarters rent after the bankruptcy, this suit was brought, and the sole question was, wdiether bankruptcy in Sept. and certificate thereon, was a discharge of the subsequent rent .^ Per Cur. Livirigstmi, J. The defendant, and not his credit- ors, have derived a benefit from this property since his bankrupt- cy. Therefore he, and not the estate assigned, should be bur- dened w^ith the rent. We determine this cause more particular- ly upon the ground of the defendant's occupying the premises, and the assignees not having taken possession of them. 3. For by a Pp.ocToii V. MooRE, Nov. T. 1804. 1 Mass. Rep. p. 198. C6rtificc\t6 ofdischarge Assumpsit upon two promissory notes made by the defendant stltrilnless^^ the plaintiff, dated Jan. 1798, at A. in this county. Plea in the contract bar, that at the time of makino; the notes, he was an inhabitant there'r^*^^ of the state of Connecticut, and that he was in April, 1798, reg- ularly discharged from allhis debts due,'and owing, by the legis- - lature of said state. Per Cur. Dana, C. J. Sedgwick, Sewall, and Thatcher, Js. without hearing any argument, w^ere clearly and unanimously of opinion, that the plea was bad. They said it did not appear by the plea, that the contract was made in Connecticut ; nor that the plaintiff was an inhabitant of that state at the time the con- tract was made, and unless he was, the resolve could not bind him. Judgment for the plaintiff. Sparhawk, et al. v. Broome. April T. 1814. 6 Binney's Penn. Rep. p. 256. 1/heen This v,"as an action against the defendant as endorser of two notJb? promissory notes, one dated 5th of Feb. 1803, the other the 9th tucen the Feb. 1S03, payable 90 days after date. The defendant received commission f"^^ value from his indorsee. ,A commission of bankruptcy was BA'NKBXJ^T.—Liahilities of. 165 issued against the defendant the 7th of April, 1802 ; but his cer- J^f/^/^'.^ tificate of discharge was not signed until the 4th of March, 1803. charge, he It was contended on the part of the defendant, that the notes [hefndora being the property of his assignees, and therefore he is not re-ee. sponsible. Per Cur. It is sufficient to say, that the liability of the de- fendant, not attaching until above two months after the date of his certificate, the debt could not be proved under the commis- sion, nor was barred thereby. I am of opinion, that judgment be entered for the plaintiffs. Judgment for plaintiffs. Maxim v. Morse. Oct. T. l8ll. 8 Mass. Rep. Vz7. Debt upon a iudgment entered in August, 1803. , ,. , r ' 7 1 i. 1 • Soliableup Plea in bar, a regular discharge under tne bankrupt law, in (,„ a subse Dec. following, and that the plaintiff's debt might have been J^ent^PJ-o^m proved under the commission. Replication that he waived his right by subsequent promise in 1805, to pay the amount of the judgment. Verdict for the plaintiff. Per Cur. Judgment on the verdict. 6. Kingston v. Wharton. Jan. T. 1816. 2 Segt. & Rawle'sPenn. Rep. 116. The defendant, on the 12 Dec, 1800, made a note in favour „pona of the plaintiff, payable at 60 days, which was endorsed for theP™"^*^^g'^ defendant's accommodation by the plaintiif, and discounted by eve of bank the Bank of U. S. On the 29th of Dec, 1800, the defendant |;'^P'^^^he°n wrote to the plaintiff, in which he expressed his regret, that he 'le shall be could not take up the note when it became due, and declared, certificate' "the moment I am able to relieve you I will." The note be- ?^'^'^^^'^'"S« •' . . . . IS no bar to came due and was taken up by the plaintiff. A commission of a suit bankruptcy was issued against the defendant, and he was duly on°"|fg "^ discharged and obtained a certificate, on the 26th May, 1801. promise. This action was founded upon the defendant's promise to pay when he sJwuld he able. It was admitted he was able. Verdict for the plaintiff subject to the opinion of the Court. Per Cur. Tighman^ C. J. The promise in the present case, although made before the bankruptcy, gave no cause of action till after. The moral obligation to pay continues, notwithstand- ing the discharge. Judgment on the verdict. 166 BANKRUPT— Dwc&i/i^e^ of. (D) Disabilities of. 1. Ogden & Thomas, assignees of W. & D. A. Cummings, BANKRUPTS, V. Jackson. Aug. T. I8O6. 1 Johns. N. Y. Rep. 369. S. P. Locke v. WInning. 3 Mass. Rep. 325. Incontem This was an action of trover to recovef a bill of lading as- plation of . , - . " bankruptcy Signed by the Cummings, before any act of bankruptcy, which ftrone'^'^ howcver happened in one month after. creditor to Y'^ y,.^^ Contended for the assignees, that it was a mere volun- an exclusion . of others, tary act of the party, and, therefore, void as against creditors in general. Per Cur. Livingston., J. It will not be permitted that a per- son, contemplating an act of bankruptcy, should parcel out his estate to such creditors as he may see fit to prefer; this is oppos- ed to the very genius of equality and a just distribution. Judgment for the plaintiff. 2. , M'Menomy & To\vnsend, assignees,, &c. v. Ferres- Feb. T. 1808. 3 Johns. N. Y. Rep. 72. But may, Assumpsit by the plaintiffs, as assignees of Mark and Speyer, fraudulent, fof money had and received to the use of the plaintiffs. "It appeared Mark & Speyer, on the 15th of April, 1800, con- veyed certain lands for the benefit of their creditors, and by a declaration in writing dated the 31st of May, 1800, they declar- ed the conveyance to be in trust, to pay particular creditors in preference to others. On the 13th of June, 1800, they drew an order on the defendant who was their agent, to pay to I Roose- velt such monies as should come to his hands, which order was accepted by the defendant. On the 11th of July, 1800, Mark & Speyer committed an act of 'bankruptcy, and on the l8th of July, 1800 were duly declared bankrupts. The jury found a verdict for the defendant. A new trial was moved for on the ground that the order on the defendant was given in contempla- tion of bankruptcy, and for the purpose of giving Roosevelt an undue preference, and so a fraud on the bankrupt, law. Per Cur. Van JVess^ J. The moment the money in this case came into the hands of the defendant, he became bound to pay it over to Roosevelt. Certainly Mark & Speyer could not reclaim it, and unless the .order was fraudulent, their assignees succeeded to no greater rights than they had. This appears to me to be a case, that must frequently have occurred in the BANKRUPT.— Foreign. 167 course of commercial transactions, and we think the order and acceptance amounted to an assignment, and fixed the fund ir- revocably, and that tte order was not given in contemplation of bankruptcy, so as to make it fraudulent under the- bankrupt law. VII. FOREIGN BANKRUPTCY. Green v. Sarmiento. Oct. T. 1810. J Peter's C. C. Rep. 75. This was an action of debt, brought on a iudo-ment recovered -^ ''^^'^ 9°" . J P traded in in 1797, against the defendant, in New York. The contract up- one country on which this judgment was recovered, was said to have ^een ^,^"J,^^°^i.^^j made at Madeira. The bankruptcy of the defendant, and the ^y the bank proceedings against him, according to the law and usage of a'ji^ther'^*^ Spain, in the island of Teneriffe, in 1801, and his certificate of discharge, were fully proved. Washington^ J. It is the opinion of the Court, that this judg- ment is conclusive, and amounts to a complete extinguishment of Ihe original contract, wherever it might have been made; and consequently, the bankruptcy, certificate, and discharge of the defendant at Teneriffe, affords no bar to the plaintiff 's present demand. Verdict for plaintiff. 2. Harrison v. Sterry, et al. Feb. T. 1819. 5 Cranch's U. S. Rep. 302. Per Cur. Marshall^ C. J. The bankrupt law of a foreign O^ legally country, cannot operate as a legal transfer of property in this property in country. ^^^'^• 3. Taylor, et al. v. Geary, et al. Sept, T. 1787. Kirby's Conn. Rep. 313. Action of book-debt. The plaintiffs were merchants of Lon-Acommis don. Verdict for the plaintiffs. Motion in arrest of judgment. ;4°p"tcy 'in"'' That the debt was contracted in London, under thefiim of Gea-^"siand, ry & (^o., and thai a commission of bankruptcy w^as duly issued secure the against them ; and that all the property of said firm was assign- £j7n^t,^s ed to assignees, for the benefit of the creditors of said firm, of co"n"y- 168 BANKRUPT.— P/cadt7iof5 and Evidence in. which the plaintiffs were part, and thereby the defendants be- came discharged from the plaintiffs demand. Motion insufficient By the whole Court. The commission of bankruptcy against the defendants in England, does not secure their effects here ; but they remain, as before, transferable by them, and open to the attachment of their creditors, as well British as American. M'MiLLAN V. M'NiELL. Feb. T. 1819. 4 Wheat. U. S. Rep, p. 209. S. P. Le Roy v. Crowninshield. 2 Mason's Rep. p! 172. Oradis ^'^^ ^'""* Marshall, C. J. As to the certificate of discharge charge in under the English bankrupt laws, it had frequently been deter- no bar to an mined, and was well settled, that a discharge under the foreign action, on | g q ■]^^^ ^q ^^ action on a contract made in this country. a contract ' •' made here. VIII. PLEADINGS AND EVIDENCE. Wilson v. Codman's exr. Feb. T. 1805. 3 Cranch's U. S. Rep. 193. The execu Error from the circuit courts. tor of an as . , i i . • xi signeeinan Ihiswasan action on a promissory note, brought m tne gainst tiie ^^^'^'^ below, by John Codraan, of whom the woto defendant was maker of a executor. John Codman brought the action below, as assignee, not""^ay^ of A. & W. Ramsey, against Wilson, to recover the amount of show that the note, but by the death of said John Codman, the suit was the bank i . i r,-,, i ^ t • i ruptreceiv abated. Ihe now defendant was permitted as executor to astilJa^entP^-^^^^^te the suit. ofhistesta pjgg^ \^ l^j^^, ]3y Wilson that the Ramseys were declared bank- rupts and had been duly discharged before the assignment of the note to the testator. Replication that the Ramseys had receiv- ed the note a5 the agents, and intrust for the said John Codman the testator. Judgment for the plaintiff, which judgment was affirmed by this court. 2. Murray, et al. v. Marsh, et al. Dec. T. 1803. 2 Haywood's C. C. Rep. 290. The indors -P«^ ^''"■- Marshall, C. J. Loomis and Tillinghast assigned er of a prom to the plaintiffs, the note sued on, which was made by the defend- issory note -^ ' ' , *' -who has be ants, and afterwards became bankrupts, and obtained a certifi- rupTmay'^ cate. And now Loomis is offered as a witness for the plaintiffs. BANKRUPT.— P/eaain^^ and Emdence in, 169 He IS a competent witness ; for he is by the certificate dischare-- l^e a wit ed of all debts, provable under the commission, and his endors-vourofhis ment to the plaintiiF rendered him liable to them, so as to make " ^°^^'^°' their demand against him, provable under the commission. o >J, Woods v. Grundy, et al. June T. 1810. 3 Har. & Johns. Md. Rep. 13. Appeal from the county court. The pro ^ - CGedin^s of The plaintiff below offered the proceedings of the commission- commilsion ersofa bankrupt, to prove the bankruptcy of B., from whose g!^.^i^g^Jg°to assignees the plaintiff derived his title, which was objected toP>°^'ethe by the defendant, but overruled and admitted by the court berruptcy. low. Judgment for the plaintiff. Per Cur. CAnse, C. J. We are of opinion, that the proceed- ings of the commissioners of bankruptcy are not legally admis- sible as evidence, to prove the act of bankruptcy, committed by B., the proceedings being re^ infer alias acta, and not evidence, according to the principles of the common law, and not made evidence by the laws of the United States. Judgment reversed. 4. The assignees of Barclay v. Carson. May T. 1803. 2 Hay- wood's N. Ca. Rep. p. 243. Per Cur. Taylor, J. This being an action against a debtor ofTliey are the bankrupt, producing the commission and as=:ignment, is a jsjonh Car proof of the trading, bankruptcy, the time thereof, and appoin-*^''"'*- ting the plaintiff's assignees. 5. Kelly, assignee oe Gullen, a bankrupt, "v. Holdship. April T. 1807. Browne's Penn. Rep. 36. This was an action for goods sold and delivered, and work Cmifession done by the bankrupt. The defendant had confessed judgment admits the generally. right of ac ° , fion to be Motion for the defendant, that the plaintiff should give evi- '» 'he aa dence of the proceedings, under the commission of bankruptcy, ^ and of the assignment of the defendant to the plaintiff. Per Cur. The confession of judgment admits the assign-> ment, and the right of action to be in the plaintiff. 6. Brown, assignee of Dawson, a bankrupt, v. Gumming. May T. 1804. 2 Caine's N. Y. Rep. 33. Assumpsit by the assignees of Dawson, for work and labour, in an rc It appeared Dawson had been super cargo, of a vessel belong- ^g"" ^J^^\ 170 BAyiKRVVT.— Pleadings and Evidence in. a bankrupt iug to the defendant, and that the defendant had sustained a loss the defend , '^ ' anicann')t in conscquence of Dawson not having fully insured the vessel, ma'mia*'^'^ according to orders, which loss the defendant claimed a right to gainsi llie set-ofF. bmki upl. Per Cur. The demand is of a nature too uncertain and con- tingent, to be set-off. Judgment for plaintiff. Vide the assignees of Bar dai] v. Carson^ 2 Haywood^ 243; Og- den V. Cawley^ 2 Johns. Rcp^ 274. 7. - TUCKEKS V. OXLEY, ASSIGNEE OF T. MooRE. Feb. T. 1809. 5 Cranch's U. S. Rep. 39. But under Error to the Circuit Court, United States. the bank rupthiwof Per Cur. Marshall^ C. J. In this case, the plaintiffs in er- joiut-debt' ror, who were defendants in the circuit court, claimed to set off irmy beset ap;ainst a debt due from them, to T. Moore, the bankrupt, a debt Oil a<^amst " . the sepa previously due to them, from the firm of H. & T. Moore, which of Uifa™ fii'"^ "^v^s dissolved, and the partnership fund had passed to T. signee of Moorc. This off-set was not allowed under the bankrupt law of one of the ., t_.,_, ••,ii, ^ t re -ixi panners. the United States, a joint debt may be set-ofi agiunst the sepa- rate claim of the assignee of one of the partners. But such off- set could not have been made, at law^, independent of the bank- rupt law. 8. Marks, et al. y. Barker, et al. Oct. T. 1804. 1 Wash. U. S. C.C. Rep. 185. no^e What the Per Cur. During the trial of the above cause, it was ruled, bankrupt that what a bankrupt had acknowledp;ed before bankruptcy, has said be . . . . ir j > fore bank might be given in evidence, against his assignees.* ruptcy is ev idcnce a * An acknowledgment by the bankrupt, that he was indebted to the petitioning gainst his i- -r i i /• . assio-nees. creditor, it made before suing out the commission, is good evidence to support it ; 2 Esp. 592 J N. P. Cas. 168. A man cannot be a witness to prove an act of bank- ruptcy, committed by liimself ; but his confession to a third person at the time, that he went out of the way to prevent arrest, or to such like facts as are acts of bank- ruptcy, is admissible; 5 T. Rep. 512.. Neither can a bankrupt be a witness, to prove the petitioning creditors's debt, or any other fact to support the commission ;' though he has a certificate ; 2 H. Black. Rep. 279. After his certificate is allowed he may be a witness to any thing relating to the bankruptcy, except only to the act of bankruptcy ; ib. note. Though he releases ; 2 Strange, 829. The bankrupt is an admissible witness to explain a doubtful act, which may, or may not be an act of bankruptcy ; as whether an arrest, relied on, as a concerted and fraudulent one, was ao ornot; 1 Esp. Rep. 287. BANK CHECKS. 171 l^aWliS. See tit. Corporations. . 1. Cruger v. Armstrong, et al. Jan. T. 1802. 3 Johns. N. Y- Cas. 5. S. P. Wood, et al. v. Schroeder. 4 H. & J. 276. _ ChMcsara Held by the Court, that bank checks are considered as bills of considered exchange, and the holder must use due diligence in presenting '^^^^^^°^2 them for payment. Where the check was dated 12th of April, lo present 1796, and was never presented, but a suit brought four years af- ,"q^j"^J^" terwards, against the drawer, the plaintiff could not recover. 2.' Eichelberger V. FiNLEY, ET AL. June T. 1826.7 Har. & Johns, Md. Rep. 381. Held by the Court, Dor^ei/, J^., after a review of the cases, ■'^'o'^'^si^ •^ ' 11 11111 ""*■ "ecessa that where a party draws a check upon a bank where he has no ry where funds, he is not entitled to notice, nor is he discharged by the ^^j^j^g *^ "° holder, not presenting it in a reasonable time. Vide Clopper v. The Union Bank of Maryland^ ibid 92. 3. Franklin", et al. v. Vanderpool. Aug. T. 1828. 2 Hall's N. Y. Rep. 78. Jlssiompsit on di bank check drawn by the defendants., on the ^,j^"i,^ Franklin bank. drawn up Plaintiff proved the defendant had no funds in the Bank, on where the the day of the date, or at any time afterwards. drawer has •''•'_ no funds Held by the Court, Oa/c^ey, /., that if the drawer of a bank need not be check, has no funds in the bank on which it is drawn, it need ^^"'^^""^ not be presented for payment, to enable the holder to bring an action against the drawer. When the drawer has no reason to expect, that his bill will be accepted, it is an idle ceremony to • he presented ; nor can the drawer be injured by the omission, to do so, and the drawing of a check, under such circumstances, is an inference of fraud, which the jury are to pass upon, and which may be rebutted by testimony. 4. CouRAY V. Warren. May T. 1802. 3 Johns. N. Y. Cases. p. 259. Assumpsit on a bank check. The draw m, , , 1 • HT 1 tri^^ 1 er is not en Ihe check was drawn m March, 1800, and was presented at titled to no 1'72 . BANK CHECKS. KS wUh ^^^^ ^^^nl^'j ^ntl refused in October following, the draAver in the in- drawn his termediate time, had withdrawn his funds from the bank. Held by the Court, that the drawer was" liable ; it not appearing he had been injured by the delay, the drawer being in fault, in withdrawing his funds. Ke7it^ J. I know of no case which goes the length of exonera- ting the drawer, where the responsibility of the bank has remain- ed good, and where the drawer himself was the cause of the non payment, by withdrawing the money, and to allow the defend- ant to avail himself of the non payment at the bank, would be- to permit him to avail himself of his own fraud. ^• SuTCLiFFE, ET AL. V. M'DowELL. January T. 1820. 2 Nott & M'Cord's S. Ca. Rep. 251. VVliere no ^^ssiwipsU upon a check. It appeared that on the morning uShdrawal ^*^^^' ^^6 delivery of the checlc, the plaintiff had withdrawn the of the funds funds from the bank, and gave information to the plaintiff's are eiven, , present COUnSel. iiientnced Defendant moved for a nonsuit, upon the 2:round that the not be mfide . . ' i & by the hold plaintiff had not proved a presentment of the check, for payment er of the i ,• check. ^^^ notice. Motion overruled, on the ground that the act of the defend- ant in withdrawing his funds form the bank, and communicating that fact, rendered it unnecessary. Verdict for plaintiffs. Mo- tion for a new trial. Pe?- Cur. Richardson^ J. The motion for a new trial is dis- missed by the unanimous concurrence of the judges of this court. 6. LiLLEY V. MiLiEN. July T. 1819. 2 Nott & M'Cord's S. Ca. Rep. 257. note. Coram, William Drayton, Esq., Record- er, Charleston. S. Ca. And there Assumpsit on orders drawn by the defendant upon Mr. Roach, ttnc'iioiUn ^^^ city treasurer, in favor of the plaintiff. On presenting them this respect a short time before they were payable, he informed the plaintiff, rhocksand ^^^y would not be paid, as the drawer had expressly forbidden bills of ex him to pay them. It was contended, the plaintiff could not re- change. : ^ ' ^ cover, inasmuch as they were not presented on the day they be- came due, and was guilty of laches, in not giving notice of non payment. Per Cur. Richardson, J. Can a man wdio has forbidden BANK CHECKS. 173 payment of his own bill, complain of a want of notice of its dis- honor, with more reason than the. drawer, who for the same pur- pose, withdraws his funds in order that payment may be refus- ed, which we have decided.. The moment the defendant forbade the payment, he took notice of the true situation of his money, in the hands of his cashier, which is the object of his notice, and any application for payment afterwards, would be idle and un- meaning. 7. Murray v. Judah. Oct. T. 1826. 6 Cowen's N. Y. Rep. p. 490. H«ld by the Court, Sutherland^ J. That as a general rule, a presented check is not due from the drawer until payment has been ^e-^^^P^^j^ ^ manded from th^drav.'Ce and refused by him. As between the reasonabte holder of a check, and an endorser, or a third person, payment must be demanded in a reasonable time. But as between the holder and maker or drawer, a demand at any time before suit brought is sufficient, unless it appears the drawee has failed, or the drawer has in some other manner sustained injury by the delay. The Mohawk Bank y. Buoderick and Powell. May T. 1833. Supreme Court N. Y. S. P. Merchants' Bank v. Spicer.. 6 Wend. N. Y. Rep. 445 ; Connell v. Lovett. 1 Hall's Rep. 68. Assumpsit by the plaintiff, as indorsee of- a check endorsed And when by the defendants. The check was drawn on the Mechanics received by '' .a bank in and Farmers' Bank of Albany. It was drawn previous to the fc-'chenecta 14th of Januafy, and post dated and deposited in the Mohawk jj^^^f'l^o bank on that day, and vras presented at the Mechanics and Far- month it ^ -n ] ^^ irt^v. c T^ 1 should have mers Bank on the 16th of February. been trans Per Cur. Savage^ C. J. The question is, whether the check Albany'on was presented in a reasonable time.* In this court it is held to^'^^'^^'^ . ^ / _ and present be a question of law, where there is no dispute about the facts, ed on the ^nd greater diligence has been required in presenting checks, than ever has been required in presenting bills of exchange. * Wliatever doubts may have forinerly existed, it is novir established as a rule of law, that a party receiving a check on a banker, has the whole of the banking hours of the next day to present it for payment, per Burroughs, J., Pockinglon V. Sylvester, Chitty on Bills, 274; 2 Taunton, 394, And Lord Elhnboroiiy,h held, that where a London banker received a check by the post, ho was not bound to pre- 174 BANK CHECKS. The true rule undoubtedly is, that a check to charge an endors- er, must be presented with all the dispatch and diligence, which is consistent with the transaction of other commercial concerns. The plaintiffs received this check on the 14th of January. They were in the habit of sending notes at other times than their regular periods of exchanging, according to the time of their fal- ling due ; their was nothing in the nature of their business, there- fore, which prevented an earlier presentment. According to the cases it should have been sent on the 15th and presented on the 16th. Had notice of its dishonour been then given, the court cannot say, that the defendants ' might not have secured them- selves, I am of opinion, the defendant is entitled to judgment. Cruger v. Armstrong. Jan. T. 1802. 3 Johns. N. Y. Cas. 5. A check is Pg,. (7^„.^ Kent C J. A check is not due until demanded, not due un . . . . til demand and even independent of authority, I consider this to be the import and n?iture of the agreement. The drawer undertakes specially the money shall be paid by the person, on whom the check is drawn, and the money is supposed to be appropriated for that purpose in the drawee's hands. 10. Elting, et al. v. Brinkerhoof. Oct. T. 1829. 2 Hall's N. Y. Rep. p. 459. A check Assumpsit on the following order : may be pre r^ i n • seined any ^apt. Ring, tinie before Please pay to Messrs. Elting & Shook, one hundred brought, dollars, and oblige, STEPHEN J. BRINKERHOOF. June 3, 1823. The order was not presented until nearly six years after date, when payment was refused and this suit commenced. After the sent it for payment until the following day ; Rickford v. Rid^e, 2 Campb. 537. The rule allowing the parly receiving a check, not to present it until the next day will, not enable, a succession of persons to keep it a long time in circulation, so as to retain the liability of all the parties in case the same should be ultimately dishon- oured ; Boehm v. Sterling, 7 T, R. 425. And in the ordinary course of business a check cannot be circulated or negociated, so as to affect the drawer, who has funds in the hands of the bankers, after the hours of banking of the day after he first issues it; 6 Petersdorff's Abr. 398. Where the payee presents a check, know- ing it to be post dated, and that tiic drawer is insolvent, and has not and will not have funds in the banker's hands to pay it, the banker paying it in ignorance of these circumstances, may recover it from the payee ; Martin, et al. v. Morgan, el al. 3 Moore, 635. BANK CHECKS. 175 date of the order, various settlements had taken place between the parties, and the plaintiffs upon one occasion, were found in- debted Ring, in a greater amount than the order. Oakley^ J. If the draft be considered an inland bill of ex- change, the lapse of time between the drawing of the bill and its presentation to the drawee has been such as to discharge the defendant. But if it be considered a banker's check, then a presentation for payment at any time before suit brought is suffi- cient, unless the drawer has been injured by delay ; but whether one or the other, the consideration may be inquired into, and that is proper for the jury. 11. Matjran v. Lamb. May T. 1827. 7 Cowen's N. Y. Rep. p. 174. ^ ^ , , The holder Held by the Court, Woodworih, J., that the holder of a check a mere a payable to bearer, as a mere agent, may sue on the check in his 1^^"''^^^^^ own name, and the defendant cannot object to a want of interest own name. in the plaintiff. If a question of mala fide possessio arises that is a fact to be raised by the defendant and submitted to the jury. 12. Clark v. Stockhouse. Fall. T. 1812. 2 Martin's Ky. Rep. p. 319. S. P. Thurston v. M'Known. 6 Mass. Rep. p. 428 ; Cruger v. Armstrong. 3 Johns. N. Y. Cas. 5 ; Mathews v. Hall. 1 Vermont Rep. p. 316. , , ■•• ^ And a per Assumpsit on a check drawn by the defendant, payable to H. son to M. & Co's. note, or bearer, and was delivered to the clerk of (,ijgj.j^ig the defendant to go with a Mr. Hoyle, to the house of Hoyle, transferred =■ '' ' . may sus Miles & Co., and to the bank, and take up a note of theirs, en- tain an ac dorsed by the defendant. They arrived too late at the bank, {^"Jj'^^P^'J^^ and Hoyle took the check and said he would take up the note person from himself ; but instead of taking up the note he gave it to the plain- received it tiff as an indemnity for the plaintiff 's endorsements. It was could not. contended the plaintiff could not recover. By the Court. It is clear that Hoyle could not maintain an action against the defendant on this check. 1st. Because the check was not given to him by the drawer, or by any person, apparantly authorised to pass it away. 2nd. Because in his knowledge the check was not drawn in order to be paid, but for the special purpose of taking up a note. 3d. Because he came by it unfairly, having taken it from the clerk without authority. But a person, who cannot maintain an action upon a papei", 176 BANK NOTES. may enable anotlier person to sustain one ir certain cases. If the mail be robbed the thj^f may not sue on the bank notes ob- tained by the robbery. Yet if li^pays them away to a person un- acquainted with the unfair means, through which it was obtained, he nifiy maintain an action. So, although Hoyle could not sue the defendant, he has legally by the delivery of the check enabled the plaintiff to sustain an action if he received it without any knowledge of the particular circumstances, under which Hoyle had come by it. The word " or bearer " repel the idea that it was exclusively to be used for the payment of the note. iJanIt Notes. * 1. CoxE, ADMR. V. The State Bank at Trenton. Sept. T. 1825. 3 Halsl. N. J. Rep. 172. S. P. Scott v. Conover. 1 Halst. p. 226, Banknotes Held by the Court, Ford^ J., that the notes of a bank, are not fuUendeT. cash : that they could not be tendered as cash, nor brought in- to court as cash. Nor can the judgment debtor of the bank, bring into court the notes of the bank, in discharge of the judg- ment. * A bank note is considered as cash ; MlDer v. Race, 1 Burr. 452 ; and a bona fide holder is entitled to payment, though it may have been stolen ; ibid. Lichbarrow v. Mason, 2 T. R. 70. And they cannot be followed in the hands of a bonafide holder by the former legal owner; Lownds, et al. v. Ander!?on, el aL, 13 East. 131 ; Solo- mons v. The Banks of England, 13 East. 135. But they maybe followed where the felony or fraud of a former holder can be brought home to tlie person in pos- session, ibid, and the Court will prestime the pertion in pos.sessioii of them, is a bona ^rfe holder, for a v>iluablc considoratjon : per Ld. Ellenborouoh, King v. Milsom, 2 Campb. 6. And for tlie purpose of rendering these instruments negotiable, the right of property in tliem passes with tiie document. Every holder with the bills takes the property, and his property is stamped on the bills tlieinselves. The prop- erty and the possession is inseperable. This was necessary to make them negotia- ble,and in this respect they differ essentially from goods, of which the property and possession may bo in different persons; per E)'re, C. J. Collins v. Martin, 1 B. & P. 651 ; or Exchequer bills. 4 B. & A. p. 1. Whcrea person passes a bank note though he does not engage to be rasponsible for its payment at the bank, yet he vir- tually undertakes that it is what it appears to be; and if it proves to be forged, the consideration has failed, and he is accountable for the money ; Jones, et al. v- Ryde, el al. 1 Marsh. 157 ; and bank notes a.-e not a valid tender if objected to, but if no objections bo made, the tender is good ; Wright v. Reed, 3 T. R. 554. BANK NOTES. 177 Morris v. Edwards. 1 Hammond's Ohio Rep. 178. S. P. TowsoN V. The Harve De Grace Bank. 6 Harris & Johns. Md. Rep. p. 47. Per Cur. Hitchcock, J. The question is, what character is But for to be attached to bank notes ? By the term money, we general- poises Tre^ ly understand that which is the lawful currency, of the coun-^""^'*^^''®^ . 1 . 1 • 1 I J 1 1 1 , . , . , . as money, try — that which may be tendered, and must be received in dis- charge of a subsisting debt. With this understanding of the term, it cannot be contended that bank notes are in themselves considered money. They are not a lawful tender. No person is bound to receive them in discharge of a debt, unless in pursu- ance of a previous contract. But for certain purposes, and in fact for every purpose, in the ordinary transactions of business, bank notes, it is believed, ever have been, and still are consid- ered as money. They do not come under the denomination of goods wares and merchandize. Evidence of the receipt of bank notes, will support an action for money had and received. The delivery and receipt of them, in discharge of a debt, will be con- sidered as payment of so much money, not as accord and satisfac- tion. By the universal consent of mankind, when they pass from one to another, they pass as money. In the course of busi- ness, they are charged and credited as cash, as money They have been estimated as money, not only by men of business, but by courts of justice. Armat v. The Union Bank of George-town. 2 Nott & M'Cord's S. Ca. Rep. 471 ; Nile's Reg. Vol. 16. p. 360. Assumpsit on the half of a bank bill. The bill was cut in two. Severing a and sent by two mails from Gloucester, in Virginia, to Baltimore ; destroys it one half of the note was received, and the other never came to "^go'^'^^''^ ty. hand. Per Cur. In this case, the note must be considered by being severed, as destroyed. The hall of a bank note is not a nego- tiable instrument, and could give no title to a honn fdc holder, who received it after it was severed to recover upon it. As it is admitted that the plaintiff was the real owner of the note, when its negotiability ceased by being cut in two, he is entitled to re cover the whole amount, from the bank. Vide Bankof U. S.v. SiU, 5 Conn. Rep. 106. Vol. II. 23. 178 BANK NOTES. Patto.x v. State BA^•K. May T, 1820. 2 Nott & M'Cord's S. Ca. Rep. 464. S. P. Martin v. Bank of the U. S. 182.1. Coxe's Dig. 81 ; Buruett v. Bank of Pennsyn- VANiA. 2 Wash. C. C. Rep. 192. And tlic Jlssumpsii hy the holder of five half bank notes of the defend- pbimiil ants, which had been cut in two parts, for the purpose of con- may I'ecov 1 1 f f 1 . 1 I 1 IT^^ ^ • J.- £C cronthe veyance, One half of whicli were lost or stolen. Ihe plaintitt ba-ik^o* presented the half notes, and offered an indemnity to the bank. Per Cur. The recorder of the city of Charleston. If a nego- tiable promissory note, not endorsed, hns been lost, as it is then divested of the nature of negotiable paper, a suit can be main- tained for its recovery. The same rule governs, if a negotia- ble instrument has been destroyed. Does not the case before us, come within the same reason and principle ? The bills were, ne- gotiable, when received by the plaintiff; they were then exclu- sively the property of the plaintiff; they have by no act of his been transferred. Can the halves that are missing, be rendered negotiable, by any act of the plaintiff, or any other person ? No property in the whole note can be vested in the possessor of the stolen halves ; he could not produce evidence of his right; he never had the whole notes ; and excepting in certain instances, "by which his case is not embraced, to give authority to demand payment of a note, the note must be exhibited. He could not prove the loss of the halves, owned by the plaintiff; they are not lost ; he could not prove a right of property in these halves ; he never had it ; he could not even appear as the prima facie own- er ; possession is necessary for that purpose. Johnson^ J. A severance of the notes destroys their negotia- bility. 1 am fully satisfied such is the legal effect. Judgment for plaintiff. \ 5. Salem Ba^k v. Gloucester Bank. Oct. T. 1820. 17 Mass. Rep. 1. But not on Assumpsit on a great number of promissory notes. al-^foi-S'' ^t appeared that the notes mentioned in the plaintiff's decla- ration, v/ere notes of the Gloucester Bank, which had been sign- ed and filled up by the cashier, but which had not been signed by the president of the bank, and were stolen from the drawers of the bank, and the president's name forged. On presenting the notes to the bank by the plaintiffs, they did not declare them counterfeit, but declined payment immediately.' Ten days after they were again presented, and payment was declined, and this suit commenced. BANK NOTES, 179 Held by the Court, Parker^ C. J., that the bank was not liable in assumpsit to a hu7ia fide holder, that the declaration and acts of the bank were not sufficient to make them liable. 6. Suffolk Bank v. Lixcolx Bank. May T. 1821. 3 Mason's U. S. Rep. p. 1, Held by the Court, Story^ J., that the holder of bank bills, is -pj^g jjoider entitled to be paid in gold or silver coin, by the bank, at the of bank bills usual banking hours, according to weight, and is not obliged to ^,pon pay- receive forei^cn ffold, or silver coin, or the bills of the bank, or"'^"^^"., _«=> p ' ' _ ' gold or sil any other bills in payment. ' vercoin. 7. Edwards v. ^.Iorris. 1 Ham. 524. (Ohio Cond. Rep. 222.) The note in controversy was payable in " current bank I'-o^es, ^j^'JI^'^^,^"^' of the city of Cincinnati," and the question was, whether the paidinilieir maker was bound to pay the numerical value of them or only y^iug^ their value in the market. Per Cur. Hitchcock^ J. It is claimed that an account should be taken of these, notes, and that the complainant sbould only be made liable for their specific value. This cannot be c'one. Bank notes are considered as money. The holder has a right to look to the banks which issue them for their numerical value in specie^ and cannot be compelled to take for them a value fixed by shavers and brokers. 8. Suffolk Bank v. Bank of Lincoln. 3 Mason's U. S.JRep. 1. Held by the Court, Story^ J., that where an incorporated bank The holders divided three fourths of its capital stock, among the stock-bold- notes', ers, before the charter had expired, without a sufficient provision 'ollow the . stock of for the payment of its out-standing notes, that the stock might the bank -in be followed into the hands of the stock-holders, bv wme of the 'r^,'''"!^^ ' -' of ihe stock holders of the notes, against someo^ the stock-holders and that holders, all need not join, it being impracticable to bring ail before the Court. 9. VosE V. Grant. J-une T. 1819. 11 Mass. Rep. 505. The stock-holders of the Hallowell and Augusta Bank, after But not m the expiration of their charter, made dividends of their capital ''^"^'^-^*^" °f stock, and left insufficient funds to redeem their out-standino; bills Held by the Court, Jackson., J., that the holders of their bills could not maintain an action as for a tort, against an individual stock-holder, wdio had received his proportion of the dividends. 180 BILLS AND NOTES. 10. The State v. Carii. Feb. T. 1831. 5 N. Hamp. Rep. 367. S. P. Commonwealth, v. Carey. 2 Pickg. Mass. Rep. 47. A bank Held by the Court, Richardson, J., that the testimony of wit- note may nesses. who are acquainted w^ith the signatures of the president be proved a ■' . i-ii c i \ i • foigeiyby and cashicr of a bank, from having seen bills oi tlie bank in ^vf^olsL circulation, is competent to be submitted to a jury, to prove that quainted ^ i,[\\ -^vhich purports to be a bill of such a bank, is a forgery. Willi the '■ '■ hand writ pr!s"dent aJaVfJ^EfU aut* SaU. See tit. Deed. and cashier by having ijetVOU tlUti jFCJttC See tit. Husband and Wife. been the bank?^^''^ B'XS'tartJ. See tit. Poor, settlement of . Mill of 3EKvPtlOnS. See tit. Exceptions, hill of I. FORM AND REQUISirES OF A BILL, p. 181. IL FORM AND REQUISITES OF A PROMISSORY NOTE, p. 18G. III. OF COLLATERAL CONTRACTS VARYING THEM, p. 196. IV. RELATIVE TO CAPACITY OF THE CONTRACT- ING PARTIES TO THEM, p. 198. V. RELATIVE TO THE COI^jISIDERATION OF A BILL OR NOTE. (A) Between ijimediate parties, p. 208. (B) Between intermediate parties, p. 217. (C) Of the illegality of the consideration, p. 220. VI. RELATIVE TO THE ALTERATION OF A BILL OR NOTE, p 226. VII. RELATIVE TO THE ACCEPTANCE OF A BILL. (A) Presentment for, p. 232. (B) Terms, ■&€. of the acceptance, p. 234. (C) Liability AND discharge of the acceptor, 237. (D) Of the protest and notice, p. 243. (E) Consequences of a refusal to accept, p. 248. VIII. RELATIVE TO ACCEPTANCE OF A BILL SU- PRA PROTEST, p. 249. IX. RELATIVE TO THE TRANSFER OF A BiLL OR NOTE. (A) By endorsement, p. 251. (B) By delivery, p. 264. (C) Effect of, p. 266. ' BILLS AND NOTES.— Form and Requisites of. 181 X. RELATIVE TO BILLS AND NOTES, WHICH HAVE BEEN LOST OR DESTROYED, p. 269. XL RELATIVE TO THE PAYMENT OF A BILL OR NOTE. (A) Time, &.c. of payment, p. 274. ( B) Demand and notice, p. 278. XII. OF THE NOTICE AND PROTEST. (A) When necessary, p. 287. (B) Form and manner of, p. 294. (C) Acts whereby a party to a bill or note is DISCHARGED, p. 300. (D) Waiver of notice, p. 306. (E) Time, &c. of notice, p. 309. XIII. SATISFACTION OF A BILL OR NOTE, p. 310. XIV. WHEN CONSIDERED PAYMENT, p. 31L XV. THE REMEDIES ON A BILL OR NOTE. (A) By action of assumpsit. 1^^. Whe7i it lies, p. 316. 27id. Pleas and defence therein, p. 318. (B) By action of debt. 1,?^. When it lies, p. 322. (C) By action in general, p. 323. XVI. OF THE DECLARATION ON A BILL OR NOTE, 328. XV II. OF T-HE EVIDENCE IN AN ACTION ON A BILL OR NOTE. (A) Plaintiff's evidence, p. 339. (B) Defendant's evidence, p. 347. (C) Evidence under the money counts, p. 350. (D) Parol evidence, p. 353. (E) Competency of witnesses in general, p. 354. XVIII. OF THE SUM RECOVERABLE ON A BILL OR NOTE. (A) Damages on, p. 361. (B) Interest on, p. 366. (C) Costs on, p. 368. I. FORM AND REQUISITES OF A BILL OF EXCHANGE.* * .Assumpsit on the words " N. will much oolifje W. b}- payin;r to J. R. or order, £20." Held by the Court, a good bill of exchange ; Ruff v. Webb, 1 Esp. 129. So where it was made payable at a particul;'.r place, instead of being addressed to the drawee ; Shurtlcwortli v. Slevehs, t Cainpb. 407. Jf the date be omitted, the Court will intend it dated when it was made; De La Courtisr v. Belamy, 2 SJiow, 42?. Ifit be important to inquire as to the time, the Court will suppose it dated when 1^2 BILLS Al^B ^OTES.— Form and requisites of. 1. Lonsdale v. Brown. Oct, T..1821. 1 Const. Rep. 100. Puid. Dig. 93 ; or Coxe's Dig. 103 ; S; P. Town ley v. Sum- RALL. 2 Peters' Rep. 170. 180; Buckner v. Finley. 2 Peter, 58(5. When a bill Per CuT. Waskington. J. A bill drawn in one of the United forcK^ii. ^ States upon a person in another of the United States, is a for- eign bill, and not an inland bill of exchange, and subject to all the law of evidence and dama";e of foreign bills. Vide INlillcr V. Hackley, 5 Johns. Rep. 375. Contra., where it was held, that a bill drawn in the United States, upon any place within the United States is an inland bill of exchangee. 2. Buckner v. Finley & Vanlear. Jan. T. 1829. 2 Peters' U. S. Rep. 586. 1 S. Ca. Const. Rep. 100. Bills of ex P^^' Cur. Washington., J. This is an action of assumpsit change founded on a bill of exchange, drawn at Baltimore, in the state one state of of Maryland, upon Stephen Dever at New Orleans, in favour of onper<=ons ^- ^- ^^^U ^ citizen of Maryland,' who endorsed the same to the livlnginan plaintiff, a citizen of New York. The action was brought in the foreign. circuit court of the United States, for the district of Maryland ; and upon a case agreed, sta"ting the above facts, the judges of that court were divided in opinion, whether they could entertain jurisdiction of the cause upon the ground insisted upon by the defendant's counsel, that the bill was to be considered as inland. The difficulty, which occasioned 'the adjournment of the cause to this court, is produced by the 11th section of the judiciary act of 1789, which declares, that no district or circuit court, should have " cognizance of any suit to recover the contents of an}" promissory note, or other chose in action, in favour of an as- signee, unless a suit might have been prosecuted in such court to it was issued; Pasmorc v. North, 13 East, 517. ^iut if the writing be "I promise to pay £500 on demand, value received," without saying to whom, is mere waste paper ; Gibson v. Minet, 1 H. El. 609. But if a blank be left for the name of the payee ; Crutchiy v. Clarence, 2 M. k S. 90, bmajide liolder may fill it up ; ibid. A bill payable to a party's order is the same as payable to him or order; Hart v. King, 12 Mod. 310. A writing in these words "pay me order" is a bill of exchange; Butler v. Crips, I Salk 130. Must be for the payment of money only; Master v. Chaunlry, 2 Stra, 1271. 4nd must be payable absolutely and at all events ; Ralle V. Sarall, 1 D. & D. N. P C. 33. And must not be drawn upon an uncertam fund; Dawker v. Lavainc, 3 Wils. 207. Assnmpsil on a bill in this form, " pay A. B. one month after date, jClO on account of the Veale galley." Lee., C. J. held it was not a bill of excliangc, it being out of a particular fund ; Banbury v, Liss'et, 2 Stra. 1211. So wliere it was payable out of monies in .T. B.'s hands ; Jenny v. Ilcrele, 1 gtra. 591 ; and 6 Mod. 265. BILLS AND NOTES.— ^-r>» ondRequisittsof. 183 recover the saicl contents, if no assignment had been made, ex- cept in casesof foreign "bills of exchange." The only question is, whether the bill of which the suit is founded, is to be considered a foreign bill of exchange ? We are adl clearly of opinion, that bills drawn in one of these states, upon persons living in any other of themj partake of the character of foreign bills and ought to be so treated. Cruger T. Armstrong., 3 Johns. N. Y. Cas. 5. S. P. M-ur- RAY V. JuDAH. 6 Cowen?s Rcp. 484 ; Max3Ran v. Lamb. 7 Cowen's Rep. 174. ; Conroy. v. Warren. 9. Johns. Cas. 259 ; Woods y. Schroeder. 4 Har. & Johns. Md. Rep. 274. . Bank Per Cur. Bank checks are considered as inland bills of ex-^J^J^jJj^Yiis change, and may be declared on as such. . of ex 4. Bay v. Freazer. June T. 1789. 1 Bay's S. Ca. Rep. 66. , , , „ Endorse It was held by the Court, that an endorsement on tne back, otmeiutoor a bond, making the contents of it payable to order, for value i^e- [|°|;j°"^^^® ceived, is a good bill of exchange to charge the endorser. ftondisa ' ^. 5 D bill of ex change. 0. Addis, et al. v. Joiixson. Jan. T. 1828. 1 Vt. Rep. 136. Held by the Court, that where an endorser endorses a note,Anendors * . , . , r 1 • n r sd note not not negotiable, they would treat him as a drawer ot a bill ot ex- ,ie exchange. 6. Leonard, v. Mason. Oct. T. 1828. 1 Wend; N. Y. Rep. 522. The plaintiff held a promissory note against one L. Leonard, So an order and wrote underneath, this order, which was accepted. noFe Tsa ' " Levi Mason Esq. g'^°^ '^'" ^^ . exchange. Please pay tne above note and hold it against me in settlement. N. LEONARD. The question w^as, w^helher this could be considered a bill of exchange. Per Cur. Savage, C J. The only question is, whether the order which the defendant accepted is a good bill of exchange, if so, a parol acceptance is good. We think it is. Here the order is 184 BILLS AND NOTES.— Form and requisites of. to pay a note, which is referred to, merely to ascertain the amount. It is, therefore, for the payment of money. Smurr v. Forman. 1 Hammond's Rep. 274.^ (Ohio Cond. Rep. p. 132.) Orders Assumpsit on an order (declared on as a bill of exchano-e,) drawn on , i i r-i i ^ c> " the paymas drawn by the Col. of the second regiment of the Ohio mihtia, re'^rm^nt ^^g^^"^ ^J 1^™ i^ ^'^^ official character, directed to the pay-master arc not bills of the regiment, requesting him to pay John Smurr, for a drum, change. ^^" dollars out of the regimental fund. It was assigned in these words : " I assign all my right and title of the within order, to Alexander Forman." Per Cur. These orders are given and received on the credit of a particular fund, and the holder is to look to that fund for payment. In the case of a delay of payment, Smurr had no re- course upon the colonel, as a drawer of a bill of exchange, and when he assigned them, he gave no recourse upon himself as an endorser of a bill of exchange. Such orders do not stand on the footing of negotiable paper. 8. WooDLEY V. Sergeant. Feb. T. 1826. 3 Halst. N. J. Rep. 262. wHtinVre ^^^ ^^"'* ^ '^^^^ ^^ writing by A., directed to C, request- questinsa ing him to Credit B., or bearer, thirty dollars, and he. A., would not a bill of P^y ^'-5 ^^ ^^^ a bill of exchange, or negotiable note. It does not exchange, request C. to pay money, but only to give credit. 9. JoLiFFE v. HiGGiNs. Oct. T. 1817.6 Mumf. Va. Rep. p. 3. S P. Mershon v. Withers. 1 Bibb's Rep. 502 ; Bank of Kentucky v. Sanders. 3 Marsh. Rep. 184. Or an order In error. .^ssu7npsif upon & special oider, drawn by the paKlcdrr^ defendant below, on one Waite, directing him to pay the plain- fund, tiff a sum of money, "which was deposited in his hands, and was the property of H., as guardian of his children." Per Cur. Such draft, or order, is not negotiable, as a bill of exchange, being drawn on a pa?'ticular fund, not in favor of the payee, ^^or order^'''' nor in terms "/oj- imlue received.''^ BILLS AND NOTES.— Form and Requisites of. 185 10. Coyle's exrs. v. Satterwaite's admr. Fall T. 1824. 4 Mon- roe's Ky. Rep. 124. .Assumpsit on the following order, as a bill of exchange. tain sum "T. H.Pindell, fa^^'^'" Sir — Please to pay to the executors of Wm. Satterwaite, deceased, four hundred dollars, in yarn at eight cents per pound, and this shall be deemed your sufficient receipt for the same, agreeably to the contract, between you and my- self. C. COYLE." Lexington, Sept. 10th, 1814. Per Cur. Mills, J. This writing is not a bill of exchange. It is too well settled to need the citation of authority, that it is essential to a bill of exchange, that it should be drawn for mon- ey. 11- Nichols v. Davis. 1 Bibb's Ky. Rep. 490. S. P. Mer- SHON V. HiTHERS. ibid. 503 ; Bank or Kentucky v. Sanders. 3 Marsh. 184. Held by the Court, that it is essential to a bill of exchange, ^^']^"!l that it involves the personal responsibility, and be not payable out party re r i- 1 r J sponsible. of a particular lund. ^ 12. Ellis V. Wheeler. March T. 1825. 3 Pickg. Mass. Rep. p. 18. Assumpsit upon a memorandum in writing, as follows : — ^afntiff "Memdm. State Bank, No. $100. May 29, 1819. rnayrecov ' J ' erupon a Pay to Capt. Casneau, or bearer, one hundred dollars. check paya ELISHA WHEELER. To the Cashier.'' el-Vsa Si of* cx The word state was concealed by a line drawn through it. The change: declaration contained the usual money counts ; also counts up- on the memorandum, as upon a promissory note, and as upon a bill of exchange. It was proved at the trial, that the memoran- dum came to the hands of the plaintiffs, for a valuable consider- ation, about five years after it was made. A verdict was taken for the plaintiff, subject to the opinion of the Court. B. Pa7'sons contended, that the action could be sustained up- on either of the counts, and he cited Saxton v. Johnson, 10 Johns. Rep. 418 ; Hodges v. Stewart, 1 Salk. 125 ; Harris v. Hartback, 1 Burr. 373 ; Ball v. Allen, 15 Mass. Rep. 433 ; Vol. II. 24 186 BILLS AND NOTES.— Form and Requisites of. Brown v. Oilman, 13 Mass. Rep. 158 ; Waynan v. Bend, 1 Campb. 175 ; Johnson v. Collings, 1 East. 98 ; Barlow v. Bishop, ibid. 434 ; Whitwell v. Bennett, 3 B. & P. 559 ; Houle V. Baxter, 3 East. 177 ; Chitty on Bills, (6th Ed. ) 364, et seq. Gay, Contra, cited Bailey on Bills, 6 ; Shuttleworth v. Ste- phens, 1 Campb. 407 ; Patlock v. Harris, 3 T. R. 174 ; Gant v. Vaughan. 3 Burr. 1516; Ball v. Allen, 15 Mass. Rep. 433. The Court, without expressing an opinion in regard to the special counts, held upon the authority of Grant v. Vaughan, in particular, that the action was sustainable upon the count for money had and received, and they referred to Bullard v. Bell, 1 Mason, 243, and the cases there cited, in corroboration of their decision ; see the case of Pierce v. Crafts, 12 Johns. Rep. 90. Judgment according to verdict. n. FORM AND REQUISITES OF A PROMISSORY NOTE.* 1. People v. Finch. Nov. T. 1809. 5 Johns. N. Y. Rep. p. 237. S. P. Russell v. Whipple. 2 Cowen's Rep. 536. The prisoner was convicted for forging a note, for the pay- ThcwoHs nient of money, in the following- words: "due to B. "^ . ° one dollar," "Due Jacob Finch, one dollar on settlement this day. Eory nott' DAVID KNIGHT." Fek 1th 1809. Motion in arrest of judgment, that the note was not for the payment of money, within the statute. Per Cur. This is a note for the payment of money, within the statute. A similar question arose in the case of Mackey, * A promise to account to another, or his order for a certain sum, value received is a promissory note; Morris v. Lee, 8 Mod. 362. And the words "I do acknowl- edge myself to be indebted to "A." in ten pounds, to be paid on demand for value received, is a good promissory note, the words " to be paid," amounting to a promise to pay; Casborne v. Dutton, 1 Selw. N. P. 378. A note payable to A. or toB. is not a promissory, and cannot be recovered by the payee ; Bluckenhagan V. Blundell, 2 B. & C.417. A pronise lo pay on the death of C. D., provided he shall leave the defendant sufficient to pay, is not a promissory note within the stat- ute, ii being payable on a contingency ; Roberts v. Peak. 1 Burr. 323. But a promise to pay, six weeks after the death of A.; Coleman v. Cook, 2 Stra. 1017. Or when A. shall come of age ; Goss v. Nelson, 1 Burr. 227. Or two months af- ter a ship is paid off; Andrews v. Franklin, 1 Stra. 24. were held good promissory notes within the statute. But a promise to pay within so many days after the de- fendant should marry ; Barnsley v. Baldwin, 7 Mod. 417 ; Pearson v. Garret, 4 Mod. 417. Or a promise to pay on the sale of a certain house and good*; Hill V. Halford, et al, 2 B. & P. 413. were not good promissory notes. BILLS AND NOTES.— For7n ajid Requisites of. 187 before this court, in August, term, 1806. He was convicted for forging a paper in the following words : "Due from Benjamin Sands, to Matthew Mackey, the sura of one pound, on the 1st oi Aprils 1801. BENJAMIN SANDS." The Court decided that this was a note within the statute. Jones v. Fales. March T. 1808. 4 Mass. Rep. 245. Assumpsit on the following note : A note pay "Value received, I promise to pay Mr. Stephen Fales, or or- eign bills la der, in sixty days, and grace, six hundred and eighty dollars. ^°g"®S°"* Foreign bills. Wm. CLAP." Per Cur. A promissory note, payable in foreign bills, is not a cash note, and therefore not negotiable. 3. Leiber v. Goodrich. Oct. T. 1825. 5 Cowen's N. Y. Rep. 186. S. P. M'CoRMicK V. Trotter. 10 Sergt. & Rawle's Penn. Rep. 94. The plaintiff declared upon a note, in which the defendant Or in Penn promised one Lamphear, or bearer, two hundred dollars in pg/cuiren Pennsylvania paper currency, or New York, to be current in the ^^y- state of Pennsylvania, or the state of New York. The note was assigned to the plaintiff. Per Cur. Sutherland, J. Payment in any bank bills general- ly, current in the state of Pennsylvania, although not current in this state, would satisfy the terms of the note. Its legal effect therefore, is the same as though it had been payable merely in bank bills, current in the state of Pennsylvania. Are such bills known, approved of, and used in this state as cash ? I be- lieve that in truth, most of the Pennsylvania bills, pass only at a discount in this state. But if the fact be otherwise, it is cer- tainly not so notorious, that we can officially take notice of it. The note, therefore, is not payable in cash, but in something dif- fering in value from cash. Of course it is not negotiable under the statute. Vide Jones v. Fales ; the preceding case. Hemmenway v. Stone. Sept. T. 1810. 7 Mass. Rep. 58. Assxunpsit on a promissory note, in these words : Aproimsso ""^ ^ -' _ ' ..wiuo. ry note com I promise to pay to Fredrick M. Stone, or order, &c. Sign- f^^"'^'"S. ed Bowman Chadwick, and below by the defendant. to pay/''** It was objected, that no recovery could be had upon the note ^^ib^JJ^by 188 BILLS AND NOTES.— Porwi and Requisites of. twopersonsjt beincr ioint, whereas the plaintiff counts upon it as the sin- is jointand , , f ^, ■, r J J. severaL gle note oi the deienaant. Per Cur. If this note is not several, as well as joint, then it will not comport with the declaration. We are satisfied that a note of this description, is both several and joint. It is the note of both and each of the subscribers, and therefore was rightly admitted in evidence. Hunt, admr. v. Adams. Sept. T. 1809. 5 Mass. Rep. 368. ^°d "b^^^A 'Assumpsit upon the following promise : payable to For value received, I promise to pay Isaac Bennet, fifteen ed by C.'as hundred dollars, law^ful money of the United States, on the first surety. of December next, with interest. Payment to be made at Cock- sackie. $ 1500. Witness my hand, JOSEPH CHAPLIN. I acknowledge myself holden, as surety, for the payment of the above note. Witness my hand, BARNABAS ADAMS. Per Cur. Parsons, C. J. The defendant is an original party to the contract, as well as Chaplin. The contract in its legal construction, is a promise made, as well by the defendant, as by Chaplin, for value received to pay fifteen hundred dollars to the plaintiflF's intestate. When B. received the note, it was the note of both, and al- so of each, or in other words, it was their joint and several note. Judgment for plaintiff. 6. CooLRiDGE V. RuGGLEs. March T. 1819. 15 Mass. Rep. 387. be payable Jissumpsii On the following note : viz. "For value received I promise to pay the bearer hereof, six months after date, nine hundred and eighty dollars ; provided the ship Mary, arrives at an European port of discharge, free from capture and condemnation by the British. SAMUEL RUGGLES." Parker, C. J. The only question is, whether the written promise declared on, is negotiable in its nature; so that an ac- tion may be maintained upon it in the name of the plaintiff, who is assignee. And we are all of opinion, that it is not negotiable, on account of the contingency, on which the payment of the money is made to depend.* * Notes payable upon a contingency, are not within the statute of S & 4. Ann. on a con tin fjency. BILLS AND NOTES.— ForTTi and Requisites of. 189 Ball v. Allen. March T. 1819. 15 Mass. Rep. p. 433. S. P. Brown v. Oilman. 13 Mass. Rep. 158. Assumpsit upon the following instrument : doernotim' Union Bank. $100, — cents. Bostoir, Oct 17, 1816. port a con - ' ' ' sideration. Pay to No. 100, or bearer, one hundred dollars, for account of JAMES ALLEN. To the Cashier. The declaration counted upon it specially as a promissory note and added the money counts. Per Cur. Parker^ C. J. This is not a promissory note, payable to bearer. It is in the form of an order , and not containing the words for value received, does not import a consideration or promise to pay. The mere possession of a paper drawn in form of an order, there being no drawee in existence ; we think can- not entitle the possessor to an action in any form without show- ing he came fairly by it, and for a valuable consideration. Stamps v. Graves. Dec. T. 1825. 4 Hawk's N. Ca. Rep. p. 402. Debt upon the following instrument : ^e"dedarTd " I promise to pay John Stamps, or John W. Graves, the sum on- of two hundred dollars, out of a bond, when it shall be collect- ed on James Daniels, &c. A. GRAVES." Held by the Court, Henderson^ /., that this notes, being payable upon a contingency, &c., was not within the statute, and could not be declared on ; the consideration must be stated in the dec- laration, and proved, and the note could only be evidence to the jury- Ch. 9 ; Carlos v. Fancourt, 5 T. R. 582 ; Pearson v. Garratt, 4 Mod, 244. A note made payable a certain time after marriage, is not negotiable ; Barnesley v. Bald- win, 7 Mod. 417. So where it was made payable on a sale of a house and goods; Hill V. Hallbrd, et al. 2 B. & P. 413. But a promissory note, payable in six months after the dealh of the defendants father, is a good negotiable note ; Cook v. Cole- man, 2 Stra. 1017. Or to an infant when he should come of age ; Goss v. Nelson, 1 Burr. 227, Or two months after a ship is paid off; Andrews v. Franklin. 1 Stra. 24. It must, however, be for the payment of money only; Martin v. Chauncey, 2 Stra. 1271, And must be for a specific s-um ; Smith v. Nightingale, 2 Stark, 375, And must not be payable out of a particular fund ; Hill v. Halford. 2B,&: P. 413. 190 BILLS AND NOTES.— J'orm and Requisites of. 9. GooDLEA, ASSIGNEE, V. Taylor. Junc T. 1825. 3 Hawk's N. Ca. Rep. 458. S. P. Stevens v. Blunt. 7 Mass. Rep. p. 240. Otherwise Debt upon the following instrument : where the '■ " i t t contingen Against the 25th of December, 1819, or when the house, John eJbyTcer W. Mayficld has undertaken to build for me, is completed, I tain day of promise to pay to John Mayfield, or order, $800, for value re- ceived, as witness my hand and seal, 21st Feb., I8l8. WARNER TAYLOR. (L. S.) Held by the Court, Taylor, J., that by inserting a specific date of payment, made the instrument payaole at all events, whether the house was completed or not, and that it was within the stat- ute, and negotiable. 10. Jerome v. Whitney. Feb. T. 1811. 7 Johns. N. Y. Rep. 321. Or payable Assumpsit upon a promissory note for the payment of sixty tie. dollars in neat cattle. Per Cur. This is not a promissory note under the statute, for it is payable in " neat cattle," and it therefore, required a consideration to be stated, either by showing the acknowledge- ment of one upon the face of the note, or otherwise by particu- larly averring it, as in a declaration upon a special agreement. 11. Keith v. Jones. May T. 1812. 9 Johns. N. Y. Rep. p. 120. S. P. JuDAH V. Harris. 19 Johns. Rep. 144. Butmaybe Held by the Court, that a promissory note, payable to bearer ^ork staxQ ^^ York state bills, or specie is a negotiable note within the stat- bills. ute. 12. The President, &.c. of the Goshen and Minisinck Turn- pike Road, v. Hurtin. Aug. T. 1812. 9 Johns. N. Y. A writing Rep. 217. the defe^nd 'Assumpsit on a promissory note, made by the defendant, by am promis which he promised to pay to the plaintiff for shares in the capi- for shares tal stock ot the Said corporation, in such manner and propor- ifa^co'rpom^^^"' ^"^ ^* ^^^^ ^^^^ ^"^ place, as the plaintiffs should from tion is a time to time require, good prom j- _, _ issory note. "«»* <^wr. 1 he note set forth in the declaration, is a good BILLS AND NOTES.— i^orwi and Requisites of. 191 promissory note within the statute, though it has not the words " bearer, or order," and may be declared upon as such. This is the established English law ; 6 T. R. 123 ; 2 Ld. Raym. 1545. and the same rule was recognized, by thi^ court, in the case of Downing V. Backenstaes, 3 Caine's Rep. 137; for our statute, relative to promissory notes, is the same, in substance, as the statute of 3 and 4 Anne. The note was payable in money, and payable absolutely, and not depending on any contingency. It was, in effect, payable on demand, and it was not requisiteth at a consideration should be averred, or appear upon the face of the note ; for every note within the statute, unless there be some- thing in the note itself to the contrary, imports a consideration ; and that presumption stands good until the defendant destroys it. There is, however, a consideration appearing on the face of the note in this case, for the promise to pay the 125 dollars, was " for five shares of the capital stock of the corporation ;" and it is to be intended that the defendant had duly become a stock- holder to that amount. 13. Cook v. Saterlee and Saterlee. Aug. T. 1826. 6 Cowen's N. Y. Rep. 108. Per Cur. Savage, C. J. The essential qualities of a bill, or ^y note note, are 1st., that it be pavable at all events, not dependent "i"stbepay upon any contingency, nor payable out oi a particular fund ; ey and not and 2d., that it be for the payment of money only, and not for J^P^'J^^^y^" the performance of some other act, or in the alternative. 14. WooDFOLK V. Leslie. Nov. T. 1820. 2 Nott & M'Cord's S. Ca. Rep. 585. S. P. Pepoon ads. Stagg. 1 Nott & M'Cord, 102. Held by the Court, that no precise form of words are neces- Or to pay sary to constitute a promlsory note. A mere promise to pay condition money unconditionally is a promissory note. Any mere written ^^y- promise to pay money unconditionally, is a promissory note, a pa- per signed by defendant, stating that he had received a certain sum of money from the plaintiff, which he would return when called for, or a paper acknowledging that the defendant had borrowed a certain sum of the plaintiff, is a promissory note. 15. Ayres v. Harness 1 Hammond's Ohio Cond. Rep. 167. (368.) Debt on a sealed note. The facts were as follows: — Har- j- J^^J^^ ^ 192 BILLS AND NOTES.— Form a?id Requisites of. notbemadeness beinff indebted to the plaintiff made his seal, and wrote by writing . . . •.^ • i i i . it over a sig his name in connexion with it, upon a blank sheet of paper, and •ear^ ^""^ authorized the plaintiff to write over it a note for the sum found due, and the subscribing witness attested this sealing, and sub scribing. The paper thus signed and sealed, was delivered to the plaintiff, an entire blank, who wrote over it, the note upon which this suit was brought. Per Cur. The ancient law was well settled, that a valid deed could not be made by writing it over a signature and seal, made upon a blank, or empty sheet of paper. We know of no decision, by which this ancient doctrine is overruled. We are accordingly of opinion that the writing in this case, cannot be operative. Judgment for defendant. 16. Warren v. Lynch. Feb. T. 1810. 5 Johns. N. Y. Rep. 239. A writte n Assumpsit on the following promissory note, by the plaintiff toapromis ^s first indorsee, against the defendant as ' maker, dop^notef Petershurgh, Virginia. Jiug. 27, 1807. feet Its va Four months after date, I promise to pay Hopkins Robertson, New York, or order, the sum of seven hundred and nineteen dollars, 121-2 cents. Witness my hand and seal. Payable in New-York THOMAS LYNCH. ( L. S.) Per Cur. Kent, C. J. The note was given in Virginia, and by the laws of that state, it was a sealed instrument, or deed. But it was made payable in New-York, and according to a well settled rule, it is to be tested and governed by the law of this state. This paper must be taken to be a promissory note, with- out seal, as contradistinguished from a specialty. We have nev- er adopted the usage prevailing in Virginia, and in some other states, of substituting a scrawl for a seal. Vide Meredith v. Hindsdale 2 Caine's Rep. 362, overruled. A written- or ink seal is regarded in Pennsylvania, as of equal validity with a seal of wax; M'Dill's lessee v. M'Dill. 1 Dall, 63. 17. Mitchell v. Parham. Nov. T. 1823. 1 Harper's S. Ca. Rep. p. 3. But the in Per Cur. The w^ord "ieaZed" inserted in the body of an instru- the"word^ ment, promising to pay money, will not make it a specialty, "sederf," is without a Seal, an ( L. S., ) or some equivalent mark annex- not suffi , -> \ ■> / n cient. ed. BILLS AND NOTES.— Form and Requhiies of. 193 18. Hills v. Bannister & Butler. Oct. T. 1827. 8 Cowen's N. Y. Rep. p. 31. ^Vlicrc the Assumpsit on a promissory note. The plaintiff gave in evi- paiUes sign dence a joint and several promissory note, signed by the defend- eda^^o^te^as ants, with the addition of " Trustees of Union Religious Socie- they weie ty, Phelps." The defendants proved this society to be a corpo- Jj^ r^spm" ration, and objected to the plaintiff's right to recover. Objection sible. overruled. Per Cur. Woodworth, J. The objection that the defendants were not liable on the note, having signed in the character of trustees, was properly overruled; the addition of trustees, is a descriptio personarurrtj and the defendants are personally liable, 19. Foster v. Shattuck, et al. April T. 1822. 2 New Hamp. Rep. 446. Per Cur. Woodbury, J. Where a note is made payable to a note not a the name of some person, not having any interest, and not intend- P^^^^J-y^Jj" ed to become a party in the transaction, whether a person of it may be , • • i 1 ^ • . xi 1- deemed ficti such a name, is, or is not known to exist, the payee may be jj^j^g deemed fictitious. The name is assumed, merely to give form to the instrument- In such cases it has been adjudged, that a re- covery can be had on the money counts, by the actual creditor, when money passed between the parties in the action. 20. Ludlow, et al. v. Van Rensalaer. Feb. T. 1806. 1 Johns. N. Y. Rep. 94. Assumpsit on a promissory note, made by the defendants, pay- a note able to Alexander Stewart, or order, on demand, for value receiv made in dr Tt I 11 1-1 1 . ■ ■, . . ^ Fiance pay ot Randall, which was endorsed to the plaintiffs. The note able in was made in Paris where the defendant and Randall resided. t^Sdd^' It was contended that this note was void in- France, it not ^^^^ ^'^^"S^ , . • , 1 , , not stamped having a stamp required by the laws of that country, and had according to no operation there, it could not be recovered here, for this court S ^^^"^ °^ Will take notice of the laws of the place, where the contract is made- Per Citr. Livingston., J. The payee of this note, though it was made in France, resided at the time, within this state, where it was to be paid. As we do not sit here to enforce the revenue laws of other countries, it is perfectly immaterial, in a Vol. II, 25 lancc. 194 BILLS AND NOTES.— Form and Requisites of. suit before us, whether, or not the note "was stamped according to the laws of France. Such a duty is not imposed upon us, nor if it be admitted, that the law of France, in this instance, has been violated, are we bound to take notice of such violation? If it were otherwise, it might well be said, that the parties never contemplated exacting the payment of this note, in that country, and this would form a sufficient excuse here, for not adhering rigidly to a matter, extrinsic and formal, as to the contract, though it might be necessary, in order to sustain an action in the courts of France, Judgment for the plaintiff. 21. Grey, et al. v. Wood, et ux. Dec. T. 1808. 2 Haf. & Johns. Md. Rep. 329. S. P. Ritchter v. Selin. 8 Sergt. & Rawle's Penn. Rep. 425. Antedating Held by the Court, in the above cause, that a promissory a note does .*^.. ' ^ notinvali note IS not invalidated, by being antedated, date It. 22. WooLEY v. Sergeant. Feb. 1826. 3 Halst. N. J. Rep. 262. An order Certiorari. The suit below was upon an indorsement of an in- requesting . + • .T 1 A. to credit strument, m tnese words : ?r o°n t^hT " ^^^' ^^^'^^ Sergeant, please to credit John Wooley, or bear- back of a er thirty dollars, and I will pay you by the tenth of April next, promissory i -i-i t ^^ r • ^ note not ne and you Will oblige your inend, eo^i^bie JOHN MILLER." cannot be ,, » ^^ ,<-,^^ declared o». March 24, 1822. On the back of the instrument, was this endorsement : "I guar- antee the within, 27th of March, 1822. JOHN WOOLEY." Per Cur. Ford, J. The above instrument is not a bill of ex- change, or a negotiable promissory note, and the guarantor of such an instrument is bound to see that the drawer pays accord- ing to the terms of it ; and cannot set up a want of demand and notice, as a defence — the guarantee is upon an instrument, in no wise commercial, in no respect negotiable, nor capable of circulation, in the general market, and cannot be classed as commercial paper. 23, Society of Chaplin v. Canada. July T. 1830. 8Conn.Rep.286. Promissory Assumpsit on the following promisory note : negotiable $ 33. 34 Cents, are treated "For value received, in the discharge of a subscription, for BILLS AND NOTES.— J'orwi and Requisites of. 195 the sum of ten pounds, signed by David Canada, bearing date, in Connect! Aug. 24, 1796, for the good leases, uses and trusts, and with ciaities. the limitations thereon expressed, and set forth the underwritten promises, to pay Joseph Martin, Matthew Smith, and Francis Clark, and their successors for the time being, as trustees for the Society, called, and known by the name of Chaplin, in the town of Mansfield, Cbunty of Windham, and state of Connecti- cut, thirty-three dollars, thirty-four cents, on demand, together with interest on said sum, from the 1st day of January, 1810, till paid ; as witness ray hand. DAVID CANADA." Per Cur. Bissell, J. The general question, raised upon this record, is, whether the plaintiffs can maintain an action on the note, set forth in their declaration. The note, after expressing the consideration, on which it is founded, is made payable to Jo- seph Martin, Matthew Smith, and Francis Clark, and their suc- cessors, for the time being, as trustees of the society of Chap- lin. The action is brought in the name of the society, for whose benefit the note was, unquestionably given. Two quest- tions arise. 1st. Is the note in question, a specialty? 2d. And if so, in whom is the legal title? Whether a note of hand, ex- pressed to beybr value received, stands on the same ground, in Connecticut, as an instrument under seal, absolutely importing a consideration, is a question not necessarily involved in the decision of this case. I purposely avoid expressing any opinion on the point. It is sufficient, that so far as regards the form of action, and the mode of declaring, notes not negotiable, have ever, in this state, been treated as specialties. They have been, uniformly, declared on with a profert, in the same manner, as instruments under seal ; Slocum v. Sandford, 2 Conn. Rep. 533 ; 535. Swift's Ev. 339 ; 1 Swift's Dig. 429. This being so, the action should be brought in the name of the person having the legal title ; Anderson v. Martindale, 1 East. 497 ; Scott v. God- win, 1 Bos. & Pul. 67 ; Dawes v. Peck, 8 T. R. 332 ; Sandford V. Sandford, 2 Day, 559. 1 Chit. Plead. 4. I am of opinion the action cannot be maintained. 24. Da Costa v. Guieu. Jan. T. 1822. 7 Sergt. & Rawle's Penn. Rep. 462. And a bill T. 1 T o -IT /-I 1 • 1 n 1 • . ofexchanffe It appeared J. & V. Garesche, assigned all their estate and may be a effects to the defendant, and one H. for the payment of their P'^^^^^y ' jr J note ana Oe debts, in the order and manner prescribed in the assignment, treated as ° such. 196 BILLS AND NOTES.— Collateml contracts varying thein. After ordering the payment of certain debts, the assignment pro vided for the payment of debts, in the following words : "In the next place, they, (the assignees ) shall pay and dis- charge all accoywinodation votes subscribed, or endorsed for them by other persons, than those above named, so as to exonerate the makers, or endorsers thereof. The plaintiff was the holder of a writing drawn upon the assignors, and by them accepted, of the following import. $2000. . Wilmingtm, March, 2S,\S\S. Four months after date, please to pay to my order, without defalcation, twenty hundred dollars. P. BANDAY, Messrs. J. & V. Garesche, Merchants, Philadelphia. On the face of the instrument, was written "accepted," J. &- V. Garesche. This instrument was drawn and endorsed by P. Banday, for the accommodation of the assignors. Per Cur. Tilghman., C. J. The question is, whether it was an accommodation note within the meaning of the assignment. The .assignment seems to have been made, to indemnify those persons who had subscribed, or endorsed negotiable paper, for the accommodation of the assignors. But it is objected by the defendant, that it is not within the words of the assignment, because it is not a note., but a hill. Without doubt it is a 6ii/, but it does not follow, that it may not also be a note. I think it may be more accurately called a hill, than a note. I am of opinion, that the instrument held by the plaintiff is an accommodation note., within the meaning of the assignment. ill. OF COLLATERAL CONTRACTS VARYING THEM Smith v. Sinclair. June T. I8l8. 15 Mass. Rep. 171. A note glv P^r Cur. Where one had given his promissory note, in con- amountof a sicleration of a bond, conditioned for the conveyance of land by bond for the the obligee, the promisor was holden to pay his note, although conveyance , , , f , . ~ i- ai. i, J oiland, the the land was under mortgage at the time oi executing the bond, held vlhd ^"^ ^° continued when payment of the note was demanded.* although the land * The defendant cannot be permitted by evidonco, at the trial, to vary the tenor was under of the bill; Thomas v. Bishop, 2 Stra.955. Nor can he show that at the time of ""d^^T^ making to note, the plaintiff engaged to renew it ; Hoar, et al. v. Graham, et al. veyed. 3 Campb. 57. Or that payment should not bo demanded in the event of the plaintifFteing able to reimburse himself out of other funds; Campbell v. Hodg- son, Gow. 74. Or that the plaintiff agreed not to receive payment at the time ap- BILLS AND NOTES. — Collateral contracts varying them. 197 Bank of Columbia, v. Magruder's* admr. 6 Har. & Johns. Md. Rep. 180. ^ ^ . The agree • Per Cur. The allowance of three days of grace in the pay- ment of the ment of negotiable paper, from long and universal usage has controulThe become the g-eneral law of such contracts, but it is not such an in- custom as ° . . . to days of flexible rule, as admits of no innovations upon it. It may be al- grace. tered and controuled by the agreement of the parties, and what is tantamount, it may be changed by the usage and custom of dealing, perfectly known to the parties, and to which they will be supposed to have had special reference in making their con- tract. Ifit was an established and unvaried usage of the bank of Columbia, to exceed the three days of grace, and to demand payment on the fourth day, and this was well known to T. Mc Gruder, at the time of the endorsement, he is to be supposed to have assented to it ; and this departure from the general rule, will be sanctioned, to give efficacy to the contract, and to es- •tablish his Jiability to pay the money. Fellows v. Carpenter. Jan. T. 1788. Kirby's Conn. Rep. p. 364. Per Cur. A written agreement respecting a note, entered in- A.""^ ^ writ 1-1 •• 11-1 1- ^^^ 8Lgree to at the time the note is given, though it be not annexed, is to mental though not pointed; Free v. Hawkins, 8 Taun . 92. And a defeasance endorsed upon a note, does not controul it, unless it can be shown that it was written at the time the note was made ; Strong v. Metcalf, 4 Campb. 217 ; 1 Stark. 53. And a letter inclos- ing a note may be received in evidence, to show the intent of the parties ; Bruce, e< al. V. Hinley, el al. 1 Stark. 23. So a memorandum on a bill or note, will con- troul its operation ; Exon v. Ryscll,4 M. & S. 505; Hartley v, Wilkinson, 4 Campb. 127. * The principle in the text accords with tlie English cases. A memorandum on a bill or Kote before it is issued, may in some instances be considered as part of a bill or note ; Exon v. Russel, 4 M. & S. 405 ; and may controul its operation; ibid. The general rule is that evidence is not admissible to vary tho tenor of a bill, or to show that the defendant]did not accept it on his own private account, but on behalf of his principal; Thomas v. Bishop, 2 Stra. 955. Nor can the defendant show that at the time of making the note, plaintiff engaged to renew it ; Hoar, d al. V. Graham, el al., 3 Campb. 57. The effect of a bill cannot be controuled by a parol undertaking; Campbell v. Hodgson, Gow. 74. And a parol agreement not to require payment at the time appointed, cannot be received in excuse for neg- lect of notice of dishonour; Freere v. Hawkins, 8 Taunt. 92. And a defeasance endorsed on the back of a note by the payee, was no part of the contract, unless it was shown to have been written at the time the instument was made ; per Ld. El- lenborough. Stone v. Metcalf, 4 Campb. 217. Vide Bruce, ei al. v. Hinley, 1 Stark. 23. 198 BILLS AND NOTES. — Relative to c&ntracting parties. anexedto be considerd in the nature of a condition, and must guide and will operate direct the operation of the note, in the na ture of a ^^ condition. ' Maisonaire V. Keating. May T. 1815. 2 Gallison,s C. C. Rep. 325. Where the Per Cur. Siory, J. A bill of exchange, expressed to be for for"thTran ^^^ ransom of a vessel, and given as collateral security, for the somofaves payment of the ransom, is a contract on which an action may be sustained in a court of common law, the plaintiff and payee being an alien friend. Leggetv. The Bank of Pennsylvania. Sept. T. 1821.7 Sergt. & Rawle's Penn. Rep. 218. Andwhen Held by the Court, Tilghman, C. J. That where the drawer gives a of an endorsed note, gave a mortgage, bearing even date with the "^^J^^j^'note, to the payee of the note, the note was not merged in the curity to mortgage, nor was the endorser discharged — that their was no the endors analogy between a bond and a mortgage. A bond operates as a '[■isnotdis merger of the note, but the mortgage is only security for the payment of it. 6. Robertson v. Nott. .Feb. T. 1824. 14 Martin's Lou. Rep. 122. And parol Held by the Court, Porter, J., that parol evidence will be re- may^begiv ceived to prove an agreement between the parties, that a bill en that a of exchange which had been given by one of them to the oth- billofex , ,1 , . , ^ change er, should not be negotiated. benegotiat The Court referred to Barry v. Louisiana Insurance Compa- ed. ny, 11 Martin, 493; 12 Martin, 402 : & 1, ibid. N. S. 90; Le Blanc v. Laughlin, etal., and Coupey's heirs v. Dufaw. IV. RELATIVE TO THE CAPACITY OF THE CON- TRACTING PARTIES. L Terry v. Fargo. Jan. T. 1813. 10 Johns. N. Y. Rep. 119. S. Acting; as P. Walsh, et al. v. Bailie. 10 Johns. Rep. 180; La- Svrau ^^^^ ^- Barker. 10 Johns. Rep. 320; Beals v. Cel- thorityto ler. 18 Johns. Rep. 363. Bign notes. -n ^ , i • Per Cur. Acting as a clerk to a merchant, does not authorize the signing of notes by the clerk, in the name of his principal. BILL AND NOTES. — Relative to contracting parties. 199 2. TiLLiER V. Whitehead. April T. 1788. 1 Dall. Penn. Rep. p. 269. It was unanimously resolved by the Court, that one of two partner partners', may give an authority to a clerk under the firm of the may give house; and that the clerk may, in consequence thereof, accept^ bills, and sign, or endorse, notes in the name of the company. 3. Long v. Coburn. March T. 1814. 11 Mass. Rep. 97. Vide Odiorne v. Maxey. 15 Mass. Rep. 39. Per Cur. Parsons^ J. The authority to subscribe notes may -^"d may be by parol, by letter, by verbal directions, or may even be impli-and even edfrom certain relations proved to exist between the actual mak- ""P^^^- er of the note, and him for whom he undertakes to act ; and : it may sometimes be inferred from the subsequent assent or ratifi- cation of the party who is charged by the writing. But in all cases the name the party intended to be charged, must appear on the instrument itself. 4. Hoe v. Oxley. April. T. 1794. Wash. Va. Rep. 26. S. P. Morrison's exrs. v. Taylor, 6 Monroe's Ky. Rep. 85. And a gen _ _ .,,11 , 1 • 1 • 1- ^^^^ agent Per Cur. A bill drawn by a general agent, is binding upon may draw the principal, although the agent misapply the money. a bill.* 5. Grafton Bank v. Flanders. Nov. T. 1827. 4 New Hamp. Rep. p. 239. S. P. Underhill v. Gibson. 2 N. Hamp. Rep. p. 354. Assumpsit against the defendant as maker of a promissory A party tiOXe. himself in a It appeared at the trial, that the note was signed by Baily, pro'T^jssory * The case in the text agrees with the English cases — a person, who accepts a Qame. bill in his own name, without stating he accepts as agent, will be held personally liable; Thomas v. Bishop. 2 Stra. 955. Unless in the case of an agent contracting on behalf of the goverment ; IT. R. 172; 4 Petersdorff's Abr. 315. Where a broker as such, draws a bill on a purchaser, in favour of his employer, for goods sold by him, he is personally liable unless he sign it as agent ; Le Fevre v. Lloyd, 1 Marsh. 318 ; and where an agent of a country bank, drew a bill on the firm in town, and signed it in his own name, he was held personally liable, though the plaintiff knew he was an agent ; Leadbeater v. Farrow, 5 M. & S. 345. A servant having authority to draw bills was dismissed. Holt, J. " If he draw a bill so soon after his dismissal, that the world cannot take notice of his being out of service, or if he were a long time out of his service, but kept so secret that the world cannot recognize it, the bill will bind the master ;" Harrison's case, 12 Mod. 346 ; Boulson T. Willesdon, Comb, 450. 200 BILLS A'ND'NOTES.— Relative to contracti7ig parties. Wallis and Mahurin, and that the defendant had signed the name of Mahurin, without authority from any person. The court instructed the jury to find for the plaintiffs, if they believed Flanders put the name of Mahuiin to the note without authority. Verdict for plaintiff. Motion for a new trial. It was contended, that the act of the defendant was a forgery, ?»nd the civil remedy was merged in the felony, and that the ac tion could not be sustained. Per Cur. It does not appear that the act amounts to a forge- ry. A civil remedy merges in the felony, only until a trial can be had. It is competent for the defendant to bind himself in an as- sumed name. And it would be singular indeed, if a person who promises in an assumed name, is liable on the promise, and yet an action cannot be maintained by an averment of facts, on which his liability rests. We are all of opinion, the plaintiff is entitled to recover. Judgment on the verdict. SwASEY v. The administrator of Vanderheydejs. Jan. T. 1813. 10 Johns. N. Y. Rep. p. 34. S.- P. Smith v. Mayo, et al. 9 Mass Rep. p. 62; Martin v. Mayo, et AL. 10 Mass. Rep. p. 147 ; Wailing v. Toll. 9 Johns. Rep. p. 141, note (a) ; Fenton v. White.. 1 Suthard's Rep. 100. Anotegiy p^^ q^^^,^ A negotiable note, given by an infant even for ne- en by an in _ _ f _ ' p J fanteven cessaries is void. This we consider to be the law, and it is the lies, is void, opi'^io^^ of the most respectable writers.* * In the case of Williams v. Hanison, 3 Salk. 197 ; the court held a demurrer to a declaration, which stated the bill given by an infant, in the course of trade is BufBcieut. And a bill of exchange even for necessaries cannot be enforced ; Wil- , liamson V. Watts, 1 Campb. 551. But the privilege of taking advantage of it is confined to the infant ; Grey v. Cowper, 1 Selvv. 299. In an action by the indorsee it is no defence for the acceptor to say that the drawer is an infant ; Taylor v. Crok- er, 4 Esp. 187. And where the acceptor knew the fact, that the payee of a prom- issory note was an infant, the court would not permit the acceptor to avail him- self of the objection ; Jones, et al. v. Dorch, et al. 4 Price, 300. And the accep- tance of an infant is voidable only, and not void ; Gibbs v. Merrill, 3 Taun. 398 So where the maker of a promissory note, after it is due promises to pay it is no defence to show that the payee is a married woman ; Lord Ellenborough said, after the promise to pay by the defendant that she had authority from her husband to en- dorse bills as his agent ; Cotes v. Davis, 1 Campb. 484. But bills and notes cannot legally be accepted, or made by a. feme covert, unless where the acts by the authori- ty of her husband; Barrow v, Bishop, 1 East. 432. BILLS AND ^OTES.— Relative to contracting parties. 201 Van Winkle v. Ketchum. Nov. T. 1805. 3 Caine'sN. Y. Rep. p. 322. - . , Or one giv Held by the Court, that a promissory note ot an iniant, carry- en by an i ing on trade as an adult, could not be enforced against him by [^^'•^J^^y the payee, who had taken it in the course of business, without trade as an knowing the defendant's nonage. 8. HussEY, ET AL. V. Jewett. May T. 1812. 9 Mass. Rep. 100. Assumpsit on a promissory note made by the defendant's ^68-^^^^.^^^^^^^ tator, an infant. be enforced ' ' against his Per Cur. A void contract, or promise is not to be enforced executor. against an executor of a supposed party, any more than against the party himself. The evidence is annuled by the principle of law, that an infant is incapable of establishing such a contract against himself, while under age. 9. BuRNELL V. Smith. Nov. T. 1828. 7 Pickg. Mass. Rep. 291. S. P. Slocum v. Pomeroy. 6 Cranch's U. S. Rep. 224 ; Brown v. Mott. 7 Johns. N. Y. Rep 361. Assumpsit 3.g?i.inst the defendant as the endorser of four prom- issory notes. Boardman the attorney and agent of Wans, Avho Butanen was largely indebted to the plaintiff made the notes declared on, no^e ^oid and were sio-ned " Samuel Evans, by Asa L. Boardman, his at-betweenthe original torney," payable to the defendant, who endorsed them to the partners is plaintiff. Evans died before the notes were made and endorsed, * w^ithout the knowledge of the parties. It was contended, that as Evans \yas dead when the notes were made, and his agent's authority had consequently ceased, the notes were a nulity in their origin, and the plaintiff could not recover. Per Cur. Parker C. J. We cannot find any legal ground to discharge the defendant, Boardman made the notes in the name of Evans, professing and believing he had authority, payable to the defendant or order, and the defendant with the like belief endorsed them. The endorser always warrants the existence and legality of the contract which he undertakes to assign. The endorsee takes it chiefly on the credit of the endorser. If an endorse- ment of a note made by a minor, or of a feme covert, and even if Vol. IL 26 202 BILLS AND 'NOTES.— Relative to contracting parties. the name of the proraissor be forged, the endorser is held up- on his contract to pay the endorsee. Suppose the principal to be in a foreign country, and the agent having authority here, makes a negotiable contract to a third person, who endorses it, shall the contract be avoided be- cause the note may not be binding on the supposed original con- tractor ? such a principle would exceedingly embarrass commer- cial transactions. We think the ignorance of the parties of the death of Evans, rather strengthens than impairs the claim of the plaintiff. Vide Harper v. Little, 2 Greenleaf, 14. ]0. SxocKBRiDGE V. Damon. Sept. T. 1827. 5 Pickg. Mass. Rep. 223. S. P. Knapp v. Lee. 3 Pickg. 452- Peabody v. Peters, ET AL. 5 Pickg. Rep. 1 ; Jarvis v. Rogers. 15 Mass. Rep. 406. where°it is Jissumpsit upon a promissory note, made by the defendants, ftaudulent to Solomon Graves, and endorsed to the plaintiff. ly endorsed afterdue. Per Cur. Parker., C.J. The note was dated Dec, 1818, and was payable on demand. It came to the hands of Clark, for whose use the action seems to have been brought in Dec, 1824. It was therefore entirely discredited, and Clark must have taken it subject to any defence which the defendant could make against Graves, the promisee. Whether Clark knew that it had been paid, or that Damon had demands which he could set off against the note in Graves' hands, is immaterial, for having taken the note six years after it was given, he took it subject to every risk. , 11. Russell, executrix, v. Swan. March T. 1820. 16 Mass. Rep. p. 314. One of two Plaintiff declared that the defendant delivered to her testator cTf'a promts and One Jeflfry, who were then partners, a promissory note, and sory note {\^q plaintiffs and the said Jeffry afterwards, to wit, on the day dorse it to of the date of the said note, by their endorsement, in writing, the other. ^^ ^j^^ back of said note, by them subscribed, in the name of their said firm, ordered the contents of said note to be paid to the plaintiff's testator, of which the said Swan had notice. Per Cur. Parker, C. J. The declaration avers an endorse- ment of the note by Jeffry and Russell, the payees to Joseph Russell, one of them ; and it is certainly competent for partners, BILLS AND NOTES.— iJe/a/we to contracting parties. 203 or other joint payees of a negotiable note, to assign it to one of the firm, or one of the joint payees with the same effect, that an assignment to any other person would have. 12. DouGAL V. CowLEs, ET AL. Nov. T. 1813. 5 Day's Conn. Rep. 511. Assumpsit on a bill of exchange. The bill was drawn in fa- ;fa" pi*J.'tnet, vour of the plaintiff upon the company by one of the defendant?, may, bya ^ -rxT, ' ' i 1 • • , 1 bill of ex Per Cur. Baldwin, J. When a co-partnership exists, and a change, purchase is made, by one partner, in the usual course of busi-J|™m ness, for the use of the concern, the company are, unquestiona- name bind bly, liable for the debt, whether named in the contract, or not ; ' '^ and no one will doubt the implied power of the partners, ma- king the purchase, to bind the company, by note, or by a bill of exchange in their name, for the amount. It is equally clear, that any one partner may bind the company, by his acceptance, in the name of the firm, or even in his own name, for the amount. 13. Van Ness v. Forrest. Feb. T. 1814. 8 Cranch's U. S. Rep. 30. And on a Forrest, who was president of a commercial company, ' ^ . promissory consisting of four or five hundred members, sold certain mer-noie given chandize, the property of the company, to Crossfield, and berTAhe took his note payable to Forrest, president of the commercial company to rrn 1 r^ n ^ 1 another for company. The note was not paid, and Forrest sued Crossneld, the use of and Van Ness, who was a dormant partner of Crossfield, and ^^^ ^^"HI'sus also a partner of the commercial company. • tain an ac . fionatlaw The defendant pleaded that the goods and merchandize be- by the prom i_'i^i^ •! • • c . ise in his longing to the commercial company, consisting ol many part- ^^^^ „ame. ners, of which the plaintiff and defendant himself were members, and under the plea contended, that the stock-holders must all join in the action, and then Van Ness would be both plaintiff and defendant. Per Cur. Marshall, C. J. In the case at bar, the suit is in- stituted on a promissory note given, not to the company. Al- though the original cause of action does not merge in this note, yet a suit is clearly sustainable on the note itself. Such suit can be brought only in the name of Joseph Forrest. It can no more be brought in the name of the company, than if it had been given to a person, not a member, for the benefit of the 204 BILLS AND NOTES. — Relative to contracting parties. company. The legal title is in Joseph Forrest, who recovers the money upon the record, and technically speaking, he is the sole plaintiff, and the court can perceive no reasonable, or legal objection to his sustaining an action on the note. The princi- ple that a company cannot sue its members, does not apply to the case ; nor does the principle, that a partner cannot sue a partner on a partnership transaction, apply to any case where a note in writing is given for money, not to a firm, but to an in- dividual member. 14. Chazournes V. Edwards &Fkost. March T. 1825.3 Pickg. Mass. Rep. 5. S. P. LivifrGSTON v. Hastie. 2 Caine's N. Y. Rep. 246 ; Lansing v. Gainr. 2 Johns. Rep. 300 ; DoBB V. Halsey. 16 Johns. 34 ; Foot v. Sarin. 19 Johns. 154; Baird v. M'Dougal. 4 Sergt. & Rawle's Penn. Rep. 397 ; Poindexter v. Waddy. 6 Mumf. Va. Rep. 418. And a note Assumpsit against the defendants, as endorsers of a promisso- namecf the.^T"°^6, Purporting to be made by Edwards & Coffin, payable to firm by one the defendants. The note was in fact made by Albert Coffin, nersforapd who at the time of making it, was a partner with Abraham Ed- vate-debt, ^^^ds. The note was endorsed by Thomas Edwards, on ac- and Known ^. '. . . to be so by count of himself and partner, William Frost, in the name of lakiSg the tlieir firm. The defence was, that the note was made by Coffin, note, the Avithout the knowledge, or consent and in fraud of his partner. parnership t • i i i is not Parker^ C J. The principle has been very distincly settled in many cases in the English and New York reports, that a note, or other security given in the name of a mercantile firm, by one of the house, to pay, or secure a private debt of his own, without the knowledge, or consent of his partners, cannot be re- covered against the house. It is so laid down in Bayley on Bills, (4th ed.) 47, and the cases cited in support of the position are numerous, and decisive. It is deemed fraudulent in the credit- or of one of the partners to attempt to get security for his debt, in a contract which the debtor undertakes to make for his part- ners, inducing him to avail himself of the power he has over the property, of the house for his own private purposes. And the knowledge of the creditor so conducting, is shown by the very fact, that the debt he is attempting to secure is the debt of the in- dividual, and not of the company. bound. BILLS AND NOTES. — Relative to contracting parties. 205 15. Ballow v. Talbot. Oct. T. 1820. 16 Mass. Rep. 461. S. P. Long v. Colburn. 11 Mass. Rep. 97. Held by the Court, Parker, C. J., that where one signs a prom- person signs issory note, and adds to his signature the words " agent for A. ^^^^^^^^^^ B.," he is not liable as on his own promise ; if liable at all, he is other, he is liable by a special action on the case, for having wrongfully ^"'^l^^'g^^^^,^ made a note for another. promise. Vide The Providence Hat Manufacturing Company, ads. Emer- son, et ah, 12 Mass. Rep. 24A. 16. Jones v. Le Tombe. Feb. T. 1798. 3 Ball's U. S. Rep. p. 384. Capias in case, against the defendant, the Consul General of p.y ^'''^»'"* the French Republic, as drawer of a number of protested bills drawn by of exchange. The counsel for the plaintiff produced a positive ^^^jg^o^ affidavit, declaring that the plaintiff was induced to purchase theei^n^^nt. bills upon the private credit of the defendant, and without the fullest confidence in the defendant, he verily believed he would not have purchased them. The Court were clearly and unanimously of opinion, that the contract was made on account of the government , that the cred- it was given to it as an official engagement ; and that, therefore, there was no cause of action against the present defendant. 17. Flagg v. Upham. Oct. T. 1830. 10 Pickg. Mass. Rep. p. 147. S. P. Wilson v. Clements. 3 Mass. Rep. 1. Valentine, who was defendant's partner gave plaintiff a prom- where a issory note for board of himself and wife, in the name of ^be P^^^j.^^^'^^^gg firm, and it was delivered to the defendant for the purpose of ob-anoiegiv taining the money for it from Valentine, by a suit in the name ofg^p^j-tner the plaintiff on his guaranteeing the payment of it. ^°d^Tdebt Per Cur. The defendant contends, that the original note was he waives not a partnership transaction, and that, therefore, there was notion he has foundation for the guarantee. The note was made in the part- '^'**^^®"°^^' nership name, purported to bind both partners if made with their consent. Supposing it to be made by Valentine for his several debt, without the consent of the defendant, it would not indeed be binding upon him, but no one else could make the objection, and it depended upon himself, to insist on, or to waive the ob- jection. Under these circumstances, knowing the terms of part- 206 BILLS AND 1<10TES.— Relative to contracting parties. nership between Valentine and himself, and knowing the consid- eration, on which the note was given, we are of opinion, that his acknowledgement of his own liability, and his express obli- gation to guarantee the payment, were a waiver of any objection which he might have made to the note, and therefore, that this guarantee was given upon good consideration, and that he is bound by it. 18. Laverty & Gantley v. Burr & Baldwin. Oct. T. J828. 1 Wend. N. Y. Rep. p. 529. S. P. Dob v. Halsey. 16 Johns. Rep. 38; Foot v. Sabin. 19 Johns. Rep. 157. A romisso ^ '^^^^ ^'^^ endorsed by one of the defendants in the partner- ry note en ship name, as security for the debt of a third person, in the ab- one^of a^ sence of the other, and this fact was known to the plaintiffs. Smy fo'/ ^^^ ^^*^- Sutherland, J. The partner, who did not sign the the debt of note, is not bound by it under such circumstances, unless he was son, does previously consulted and assented to the transaction, and the not bind the ]|j^j.(jgj^ Qf proving that the partner, who did not sign the note, consented to be bound, is thrown on the creditor. When a pa- per is signed by one partner in the name of the firm, as sureties for a third, it carries on the face of it, evidence that it was not given for a partnership debt, and proof of that fact becomes un- necessary. But when the fact is established that it was not giv- en for a partnership debt, and that the person, to whom it was passed knew it, no matter what the form of the instrument is, it does not bind the partners, who did not sign or assent to it. 19. Livingston v. Hastie, et al. Nov. T. 1804. 2 Caine's N. Y. Rep. p. 246. Or for the p^y Cur. A note given in the name of a firm, for a private Knl^plrtdebt of one partner, is void in the hands of the creditor, as "*'■• against the firm, if given without the consent of the partner- ship. 20. PiERsoN AND PiERsoN V. HooKER. Feb. T. 1808. 3 Johns. N. But one Y. Rep. p. 68. roay"rdease Assumpsit on an inland bill of exchange, drawn by the defen- th? partner (j^nt on Adams, Merrill & Company, in favour of the plaintiffs, mand upon The bill was accepted by the drawers, note. The defendant produced a release by one of the plaintiffs in BILLS AND NOTES.— Relative to contracting parties. 207 the name of the firm, by which he acknowledged the receipt of ten shillings in the pound and released the defendant from all debts and demands. Per Cur. Kent., C J the release was executed by one of the plaintiffs, in the partnership name. It is, therefore, impossi- ble to donbt that it was intended to take effect, and cancel part- nership demands. The instrument is general and comprehen- sive, and expressly reaches to every debt and demand of every kind. To show by parol proof, that it was not so intended, is to contradict or explain away the instrument, 21. Sanford v. MicKLES & FoRMAN. May T. 1809. 4 Johns. N. Y. Rep. p. 224. S. P. Hackley v. Patrick. 3 Johns. Rep. 528. The question was, whether one partner after a dissolution ofnerafter^the the partnership, can endorse a note given to the firm, so as to en- dissolution, able the endorsee to maintain an action in his own name against dorse notes the firm. • ^"^ ^'l' given be Per Cur. Yates. J. The authority which exists during the fo'e 'he dis continuance of a partnership, from one partner to bind his co-"tho'heisau partner, ceases on its dissolution; and with respect to antece-^^^^j^^^^^'^ dent debts, contracted during the partnership, the power to re- concern. ceive payments and give discharges, rests on the same principle with that of joint obligees, or payees of a note, not otherwise connected as partners. It would be a peculiar hardship to put a partner retired from the concern, in the power of the other as to charge him, by negotiating bills, given during the partner- ship. Vide Smith v. Ludlow, 6 Johns. Rep. 267, where it was held, that the acknowledgement of the debt by one of the partners, after a dissolution of the partnership, will prevent the operation of the statute of limitations. Vide Simpson v. Geddes, 2 Bay, 533 ; Eaton v. Taylor, 10 Mass. Rep. 54. 22. Perkins, et al. v. Oilman. March T. 1829. 8 Pickg. Mass. Rep. p. 229. S. P. Chandler v. Herrick. 19 Johns. N. Y. Rep. p. 134; Gibson v. Gibson. 15 Mass. Rep. p. 112. Plea, that after making the note, and before it was endorsed A letter o/ to the plaintiffs, T. G. & Wm. F. Gary, by letter of licence, ii^'sJ^X"* 208 BILLS AND ^OTES.— Consideration of. maker, can signed with the partnership name, by T. Gary, and sealed with not be plea " . ., . , t f -i .1 • ' ^ •^•J. a. ^ • dediiibar his Seal, m Consideration of the defendant's inability to pay his ^° ^^^j^^?|'°" debts, agreed to give him one year from that date to arrange his dorsee a affairs, to collect his debts, and agreed not to molest, or sue him gainsi him. .^ ^^^ ^^^^ ^.^^^ . ^^^^ rj. q ^ ^ ^ ^^^^^ ^^^^ ^^ ^^^ ^:^^^ holders of the note ; and that within the year given by the let- ter of licence, they endorsed the note to the plaintiffs, who with- in the year commenced the suit. Demurrer. Per Cur. The letter of licence not to sue the maker within a limited time, cannot be pleaded in bar. The letter of licence, or agreement not to sue, was made by T. G. & W. F. Gary, without any authority from the plaintiffs ; so that no action would lie against the plaintiffs on that agreement. The defen- dant's remedy for the violation of that agreement, is by an ac- tion against T. G & W. F. Gary, and the principle adopted to avoid circuity of action is not applicable. RELATIVE TO THE CONSIDERATION OF A BILL OR NOTE. (A) Between immediate parties. It is suffi cient if somethin valuable VioLETT V. Patton. Feb. T. 1809. 5 Granch's U. S. Rep. 142. S. P. Yeaton v. Bank or Alexandria. 5 Granch, 49; French v. Bank or Golumbia. Vol. 4. p. 141. Assumpsit brought by Patton, as endorsee of a promissory note against Violett the endorser. It w^as contended, that the endorsement was made without flows to the consideration. person male ing the pro Marshall, C. J. To constitute a consideration, it is not ab- solutely necessary that a benefit should accrue to the person making the promise. It is sufficient that something valuable flows from the person, to whom it is made, and that the promise is the inducement to the transaction. The endorsement is in ef- fect and intention a letter of credit, and the endorsement has the full operation of an undertaking of a letter of credit.*,^ * Between the original parties to a note or bill, the consideration maybe inquir- ed into ; JfifTeries v. Austin, 1 Stra. 674. So where tliere has been fraud ; Solomon V. Turner, I Stark. 51. Or even where there has been a partial failure of consider- ation; Ledger V. Ewell, Peak. N. P. 283. Or that nothing was due theplaintiflT when the bill was given ; Grew v. Bevan, 3 Stark 134. Or the plaintiff may show that the bill was given parlly for value, and partly for the accommodation of the plaintiff; Darnell v. Williams, 2 Starkie, 166. So the defendant may prove thai BILLS AND ^OTES.— Between iinmediaie parties. 209 2. TowNLEY V. SuMRALL. Jan. T. 18-29. 2 Peters' U. S. Hep. 170. Per Cur. Story, J. Damage to the promisee, constitutes as !^/tf.e'prmu good a consideration as benefit to the promisor. see. 3. CusHiNG V. Gore & Grafxox. AFarch T. 18 J 8. 15 Mass. Rep. p. 69. S. P. Stevens v. Bell. 6 Mass. Rep. 339. Action upon a promissory note. Liability for previous! It appeared that the plaintiff had endorsed sundry notes for endorse the accommodation of the defendant, and being apprehensive of^^^^^^^^^'J^^^^^ being held liable for the amount of them, he took this note, pay-e.cuion. able immediately, for a greater amount than his responsibility. It was contended, that the note was void for want of consid- eration. Parker, C. J. We think, that when an endorser has either expressly or impliedly, undertaken to pay ihe note by hiin en- dorsed, there can be no question that such undertaking is a good and valuable consideration for a promissory note. Judgment for plaintiff. 4. Breed v. Hillhouse. July T. 1829, 7 Conn. Rep. 523. » The declaration averred, "that on the lirst of March, 1823, ^"'■^^''''' . . ... ance is a said note being then due and unpaid, in consideration that the gi'od consid plaintiff would wait and delay the collection of said note, and*^'^ not exact payment thereof, for four years thereafter, and of the plaintiff's promise of forbearance to collect the same for that time, the defendant, in and by a certain writing or endorsement on the back of said note, promised and guaranteed, the payment of said note in four years from said 1st day of March, 1828; in which said endorsement was, and is in the words and figures fol- lowing: viz. "Norwich, 1st of March, 1828. I hereby'guar- anty the payment of this note wuthin four years from this date. SAMUEL HiLLHOUSE." the plaintiff 8, ' ' * bank on its issory note, made by Underbill & Seymour, and endorsed by J. sufficient ' ^- Spencer to collect for the use and benefit of the said plain- considera tiffs, and in case the said Underbill &. Seymour should not pay lion for nn . . •' * .■^ undcitak- the said note on its being presented for payment, that the, said b^fnk\o''° t^efendants, would cause the note to be protested and would no- cliai-;;e the tify, or cause to be notified, the said endorser of the non pay- ment of the said note. And the plaintiffs say that confiding in the promise and undertaking of the said defendants, did deliver to them the said note, )et the said defendants not regarding their promises, &c., did not notify the said endorser of the default of Underbill & Seymour, &c., by means whereof the plaintiffs have wholly lost the sum of money in the note mentioned. It was contended, that the promise relied on was z nudum pac- tum^ and no action could be sustained upon it. The Chancellor. rhe question is, whether any sufficient con- sideration for the promise appears from the declaration. We think there is sufficient stated. The truth of the transaction, was as much a mismanagement of the business undertaken, as it was a total neglect to perform it. The reception of the note, by the bank for collection, may well be considered as the first step in the execution of the contract, on their part, and in this view no other consideration was necessary. 6. Brown v. Mott. Feb. T. 1811. 7 Johns. N. Y. Rep. p. 362. note*^was cii '■^ssuiTipsit on a promissory note payable to the defendant. BILLS AND NOTES. — Behoeen immediate parties. 211 The note .vas endorsed by the plaintiff and defendant in Blank, d-sed for The defendant endorsed the note solely for the accommodation n^ciaunn^ of the maker and without consideration, and the plamtitt Icnew ^,_j ^.^^i^ the defendant had received no consideration. sidcmiJn Per Cur. The defendant here, is regularly charged as an en- ihcer.dor. dorser of a negotiable note. There is no question made, but * that he has been duly fixed by a demand upon the maker, and notice to him ; but the defence is, that he endorsed the note for lh« mere accommodation of the maker, and that this fact was known to the plaintiff when he subsequently endorsed the note. This, however, is not, of itself, a defence. The endorser can- not set up that he endorsed the note without consideration, be- cause, by sending the note into circulation by a general endorse- iBent, and making it thereby a negotiable bill, a consideration is implied by the law merchant, and an inquiry into that fact is precluded. Where the endorsee of a note has purchased it of the endorser, he can only recover the consideration money he paid ; Braman v. Hass. 13 Johns. Rep. 52. Frisbee v. Hoffkagle. Jan.T. 1814. llJohns N. Y. Rep. 50. S. P. H.\ND V Fielding. Anthon. N. P. Cas. 87; Parsoxs V. Gaylord. 3 Johns. Rep 463; Tappen v. VanWagenen. 3 Johns. Rep. 465 ; Dermestox v. Ba. cox. 10 Johns. 198; Braman v. Hess. 13 Johns. Rep. 52; ScHooxMAKER V. Rosa. 17 Johns. Rep. 301 ; Greenleaf v. Cook. 2 Wheat. 13. Jlssumpsit n-pon two promissory notes, payable in specific ar-Tl-l-|dc|: «:^1^o, ^ivcn for Nicies. Ihe consiJ Per Cur. The note was payable in specific articles, and thee^^aiioyfa consideration was a piece of land, conveyed by the plaintiff to j'^;;",;;;,-,,,!, the defendant, not by a quit claim deed, but by a deed with fa.U. cannot warranty ; and it appears that there was a judgment against the plaintiff at the time he executed the conveyance, and that the land has since been sold under the judgment. The considera- tion for the note has, therefore, entirely failed ; for the delend- ant has no title, it having been extinguished by the sale under the judgment. Here is a total, not a partial, failure of considei- ation; for although the defendant has not yet been evicted by the purchaser under the sheriff's sale, he is liable to be so, and will be responsible for the mesne profits ; Morgan v. Richardson, 1 Campb. N. P. 40. note ; Tye v. Gynne, 2 Campb. Rep. 316 ; 212 BILLS AND 'SOT^S.— Cojmderalim of. Barker v. Backus, Penk's Cas 61 ; Plupnlx Ins. Co. v. Piquet, 7 Johns. Rep. 383. S. TiLLOTsoN, ADMU. V. Grapes. Nov. T. 1828. 4 N. Hamp. ]^ep. p. 445. S. P. SiiEPARD v. Temple. 3 N. Hamp. Rep. p. 455. And he ..2s-9u?npsii ng'd'inst the maker of a promissory note, made by hiriightfif '^^ defendant, payable to the pkaintiff's testator. action and '{'i^q Consideration was a promise by the payee, to convey to treat the • , \ *^ . . . whole as a the maicer a tract of land. The payee died insolvent, without '■" '^^'" conveying, or a title to convey. Per Cur. Richardson^ C. J. When the promise of the payee is the consideration of the note, and that promise fails altogeth- er, so that the maker of the note loses all the advantages he might have expected to derive frpm it, and nothing is left to him but a mere right of action for a breach of that promise, we are of opinion he may waive that right of action, and treat the whole as a nullity, and avoid the note. 9. V>'ap.!)ell, et ai,. v. Howell. I\lay T. 1832. 9 Wend. N. Y. Rep. 170. S. P. Bank of Chenango v. Hyde, et al. 4 Cowen's N. Y. Rep. 567 ; Bank of Rutland v. Buck. 4 Wend. Rep. 66; Coddingtonv. Bay. 20 Johns. Rep. 637. Oi- where AssuTYivsit by then cdorsees against the endorser of a promisso- the note has i " " fradulenily 1*}' HOtc. circuLuion* It appeared upon the trial, that the defendant endorsed the i>y the i^.ink note lor the accon:!modation of the drawer, and delivered it to him for the express purpose of taking up another note at the bank, made and endorsed by the said parties. The drawer pas- sed ii off in payment of a debt. The Court charged the jury, that if the note was received by the plaintiffs in bad faith, with a knowledge of the fraud, or under circumstances to put men of ordinary prudence on inqui- ry, the defendant was entitled to a verdict. Verdict for the plaintiff. Motion for a new trial. Per Cur. Siitherland^ J. Where a note has been diverted from its original destination, and fraudulently put in circulation by the maker or his agent, the holder cannot recover upon it against an acccramodation endorser, without showing that he no BILLS AND '^O'TES.—Behveenwwiediaic parties. 213 received it in o;ood faith, in the ordinary course of trade, nnd paid for it a valuable consideration. 10. Sides v. Hillearly. June. T. 1823. C Har. & Johns. Md. Rep. 86. Fer Cur. If the plaintiff at the time of taking a promissory ^'^'■.'■^■"'.'i\'-'''° te, know that the article which forms its consideration is de- |.p,^^^,j^(jo.e fective, and fraudulently conceals that defect from the defendant, ^^^'<^.'"^^"^'' ' , . "^ considara he can sustain no suit on the note. tion. 11. Tappek v. Van Wagenen. Nov. T. 1808. 3 Johns. N. Y. Rep. 458. Assumpsit on a promissory note. Cq ^vherc it It appeared that the defendant was bail, and that the note in 's given for / • X- ^i t £■ i\ ■ ^ i. the amount question was given tor the amount ol the judgment recovered of a jud^ against the principal, it also appeared that the judgment was re- 1^*^"": ^^']"^^'| covered at a subsequent terra. Pel- Cur. The consideration of the note was the judgment against the principal. That judgment is no longer in existence, and thus the consideration of the note has wholly failed. Judgment for the defendant. 12. Slade v. Halstead. May T. 1827. 7 Cowen's N. Y. Rep. P-322. Or a note i, Slade, being indebted to Halstead $500, payable at a future given by a day, advanced $190, as part payment ; and took a note from H. pjJ^J'JIJ,""^/" for the $190, payable one day after date, upon which this action "^^''^Q^' J>i' . 11-* " debt, where IS brought. anoteisgiv Per Cur. Savage, C. J. A debtor pays a part of his debt ''" '"'^*'."'^ " ' . . "' f^ rccipt. before it is due, and a note is given instead of a receipt. It is certainly without consideration and not to be enforced. Judgment for defendant. Vide 4 Johns. 303; 17 id. 304 ; 10 id. 198; 15 id. 230. 13. BuNNv. RiiCER. August T. 1810. 4 Johns. N. Y. Rep. p. 426. S. P. Laxsing v. Lansing. S Johns. Rep. 454 ; Visher V.Yates. 11 Johns. Rep. 23 ; Yates v. Foot. 12 Johns. Rep. 1; Denntston v. Cook. 12 Johns. Rep. 37G ; Mount v. Wait. 7 Johns. Rep. 434. Error from the Common Pleas. Or a note eiven as a 214 BILLS AND l^OTES. —Co7mderaH(yn of. wager on Assumpsit upon the followino; memorandum : the event of ' ^ ^ uneleciion. "Received of Joseph Graham, and Samuel Riker, Junr. 100 dollars each; which I promise to pay to Mr, Graham, in case Morgan Lewis, shall be elected governor of this state, or to Wm. Riker, in case Daniel D. Tompkins shall be elected to the said office, at the said election. " JOHN BUNN." Per Cur. Van J\^es6, J. A wager, between two voters, with respect to the event of an election of a member of parliament, laid before the poll began was decided to be illegal, on the ground that it was corrupt, and against the fundamental principles of the British constitution ; that it was a gaming contract, and not to be encouraged, and of a dangerous tendency ; Allen v. Hearne, 1 Term Rep. 56. I am of opinion that this wager is void. 14. Wenworth v. Wenworth. May T. 1831. 5 New Hamp. Rep. p. 410. Orreceiv jissumpsit ior yvork Ziud labour, ing the note 'pj^g plaintiff agreed to receive, and did receive the notes of a of an infant ^ =" . ' . . , . . for a debt, son of the defendant's a minor, and discharged his claim against the defendant. To a suit on one of the notes, the son set up his infancy as a defence, and prevailed. The Court instructed the jury, that the notes of the minor were void, and no satisfaction of the plaintiflf's claim against the defendant. Verdict for plaintiff. Motion for a new trial. Per Cur. The agreement of the plaintiff to discharge his claim upon the defendant, which was then due, was in fact with- out any consideration. And as the discharge does not appear to have been under seal, it is wathout any legal effect. Vide Crawford v. Millspough., 13 Johns. Rep. 87 ; 1 JSTew Hamp. Rep. 281 ; 4 ditto. 492 ; 3 JYew Hamp. Rep. 348. 15. Kellog v. Curtis^ admr. Sept. T. 1830. 9 Pickg. Mass. Rep. p. 534. S. P. Lent v. Padelford 10 Mass. Rep. p. 230. Orrelin The plaintiff had sued out an attachment against the land of qui^hinga jj-g debtor, and the defendant and plaintiff entered into an arbi- tration of the matter in dispute between the plaintiff and his debtor • and promissory notes were given by the plaintiff and defendant to abide the award, &c., and were deposited in the BILLS AND ^OTES.— Between immediate parties 215 hands of one of the arbitrators. The plaintiff relinquished the attachment, and the defendant failed to perform the award. The Court held, Putnam^ J., that the relinquishment of The attachment was a sufficient consideration for the note. 16. Harlan v. Reid. 3 Hammond's Ohio Cond. Rep. 478. (284.) S. P. Greenleaf v. Cook. 2 Wheaton's U. S. Rep. 13. Assumpsit on a promissory note. A partial ^ i- •! ^ failure m The defendant examined witnesses, by whom it appeared the the consider note was given in consideration of a title bond to a farm, of ^^.g^cannot which he took possession. Previous to raakins; the contract he ^^^ *^^'^^" ^"^ , . , . vantage ot examined a part of the farm, and relied upon the representations at common of the plaintiff for the residue. That the property did not an- ^^^' swer the description given of it, and that he ought not to be re- quired to pay the whole amount of the note. This testimony was objected to. Per Cur. To avoid the payment of a note in a suit at law, on the ground of fraud, the fraud must extend to the whole con- sideration. We have no rule to ascertain the extent of the par- tial injury sustained by the misrepresentations complained of. The jury .cannot make a new contract for the parties. Attempts have often been made to set up this kind of defence, but it has always been rejected. 17. Hill, asmr. v. Buckminster. Oct. T. 1827. 5 Pickg. Mass. Rep. p. 391. (Contra^ Bowers v- Hurd. 10 Mass. Rep. p. 427, and overruled.) S. P. Gates v. Wikslow. 1 Mass. Rep. 65; Thatcher v. Dixsmore. 5 Mass. Rep. p. 302; Boutelle v. Cowdin. 9 Mass. Rep. .254. Assumpsit on a promissory note given by the defendant's in- And the testate to the plaintiff's intestate, for value received. mayshow-a Per Cur. Parker, C. J. Where a promissory note, in which gXatf^n " value is acknowledged to have been received between the orig- "here tho inal parties, the defendant may shov^r that there was no existing lain-- the consideration, when the promise Avas made. This, though con- ^^'°'^^ "^'^^ ^ . . ^ . , 1 t-> ug receiv trary to tne principle of holding a party to his acknowledgement cd." must be considered as the law. A promissory note expressed to be for value received, maybe avoided by proof of want of con- sideration. 216 BILLS AND ^OTES.— Consider aiion of. 18. IIehkick v. Carman. May T. 1813. 10 Johns. N. Y. Rep. 224. S. C. Herrick v. Carman. 12 Johns. Rep. 159 ; Bar- Br.n V, Prentiss. 6 Mass. Rep. 480. The emlors This was an action by the second endorsee of a promissory noie prove iho against his immediate endorser. Defendant offered to prove that J^ave'nrcon *^^ "ote never had been negotiated to the plaintiff, and that no sideration Consideration was ever paid by the payees for the note in ques- for the m.tej- r,iiUi*i. 11- i i- 1 1 -• 1 but held it '^^"' '^^^^ ^^^* ^t ^'^'^^ delivered to him by the original payees, as ns agent rf their agent to collect, and the plaintiff had no interest in the the payees. , '■ note. Per Cut. The evidence was legal, and ought to have been received. The suit v;as between the endorer and his immediate endorsee, and they are in one sense, original parties, between whom the consideration of the contract may be inquired into. The evidence was, to shovi^ that the plaintiff below gave no con- sideration, and was the mere agent of the payees. If they were so, they had no right of recourse to their endorsee ; and how his name came upon the note, if the payees had never negotiat- ed it, is not explained. The court held when this case came again before them, that a prior endorser could not maintain an action against a subsequent endorser, no person deriving title under the prior endorser, v.'ith knowledge of all the facts, can recover against such subsequent endorser. Vide 12 Johns. Rep. 159. 19. Bank oy Rutland v. Buck, impleaded v>'ith Spear and Everest. May T. 1830. 5 Wend. N. Y. Rep. 66. S. P. Marvin v. M'Cullum. 20 Johns. Rep. 288; Chenan- go Bank v. Hyde. 4 Co wen's Rep. 567. A surety to A proiTiissory note was made by the defendants, payable to daiio'./notc ^^^^ plaintiffs. It was made to enable Spear and Everest to raise made for money and was sit2;ned by Buck as surety. The bank declined the purpose ,,. . iic-pni • ofbcin-d!s lO discount it, and before it fell due it was delivered to House b;Tpas''ed ^'^^ others, as security for the payment of a judgment exceeding ciTfoi'tiie the amount of the note. tioiioftlio It was contended, as the bank refused to discount it, the ob- ject, for v.diich the note v.-as given had failed, it ought to have been returned to the surety ; and Dt^nniston v. Bacon, 10 Johns. Rep. 198, was cited. Per Car. Savage, C. J. I can sec no wcil founded objection to a recovery upon this note. It Y,-as drawn for the purpose of [jrip.cipHl js not iial BILLS AND ^OTES.— Between interynediafe parties. 217 raising money for the accommodation of Spears and Everest, who have had the benefit of it. ' It was immaterial to the surety who advanced the money, provided Spear and Everest had the benefit of it. It did not alter his responsibility. Nor was there any fraud jn House & Co. taking the note for a debt due to them. 20. Robertson v. Mills. June T. 1827. 2 Har. & Gill's Md. Rep. p. 98. Vide WINGS v. Low. 7 Har. & Johns. Rep. p. 3 24. Assumpsit on a promissory note drawn by Rhoads and Mills, ^|.^j^°j|.g^° in favour of the plaintiff. The action was against Rhoads & »^ay prove -_.,, , -Byr-n 1 ,1 thatthecon Mills, but Mills only was arrested. sideration At the trial the defendant offered as a witness, the said Rhoads "^,J^s for his to prove the consideration of the note ; that the note was g-iv- individual : 7 , . 1 1 1 • 1 • . 11 benefit, en to secure a debt due by him on his own account, and that when he signed the note, he informed the plaintiff that he was not authorised to sign the defendant's name to it. The plaintiff objected. The court overruled the objection, and permitted Rhoads to be sworn. Verdict for defendant, and plaintiff ex- cepted. By the Court, Buchanan^ C. J. Earl and Martin, Js. Judgment affirmed. (B) Between intermediate parties. 1. Church v. Barlow. Sept. T. 1830. 9 Pickg. Mass. Rep. 547. Per Cur. The general rule is, that in regard to negotiable ^^'■^^^^." "* instruments, a consideration is implied by law, not only as be- parties. tween the promisor and promisee, as also between each endorser and endorsee. Another rule familliar to every lawyer and mer- chant, and of universal application, is that any endorser, who may be called upon to pay, may look to his immediate endorser, or to either of the prior parties, for an indemnity for the whole amount thus paid ; and that every endorser is condi- tionally liable to pay, in case of the failure of the maker or ac- ceptor, that is upon the condition that the bill or note is present- ed to the acceptor or maker when due, and if not paid, that such endorser be seasonably notified of its non payment. Vol. II. 28 218 BILLS AND NOTES.— CWidera/jon of. 2. WooDHULL V. Holmes. May T. 1813. 10 Johns. N. Y. Rep. 231. S. P. Powell V. AVaters. 17 Johns. Rep. 176; Warren v. Merry. 3 Mass. Rep. 27; Webb v. Dan- FORTH. 1 Day's Conn. Rep. 301. tf iSi^may '^ssumpsit ow a promissory note, made by the defendant payable beav.imess to Elisha MorrelL to prove facts subse The defendant offered Morrell, the endorser, to prove that execuUoiiof"^^^^^^'^ he or the rasker had received any consideration for the the no: c in note, that he delivered it to a third person in order to have it dis- fhe title of counted at the hank, who instead of offering it at the bank, put the holder, ft in the hands of the broker. The testimony was objected to and overruled. Verdict for plaintiff. Per Cur. The endorser was called to prove, amongst other things, that after the note w'as duly executed and endorsed, it was delivered to a third person, to carry to the bank for discount, and that instead of doing this, he placed it in the hands of a bro- ker. Here v/as a breach of trust in the third person. The en- dorser w^s not called upon to invalidate the note, in its incep- tion and creation, by shov^'ing force or fraud, or that the con- sideration was corupt or illegal, but he was called upon to show that after it had been regularly drawn and endorsed, and deliv- ered to a third person for a particular purpose, lawful in itself, and cosistent with the validity of the note, that a third person deceived them, and fraudulently circulated the note. New trial granted. 3. Jones v. Caswell 3 Johns. Cas. p. 29. S. P. Denison v. Ba- con. 10 Johns. Rep. 198; Braham v. Hess. 13 Johns. Rep. 52. In an action Action on Seven promissory notes, made by the defendant, ond endors '"^^^ °"® Noble, to J. Ward, and by him endorsed in blank to ceof a note the plaintiff's father, it appeared the notes were given to induce to whom It I-,. J, ... ^ had been en him to desist from bidding against them, at an auction sale of durti'lira ^^*^^'- '^'^^6 Plaintiff obtained'' the notes from his father after they knowledge were due, knowing the circumstances under w^hich they were oftheille i . • , ° ^ gaiityofit, obtained. otion'n^ay^'^ ^^^ ^"^- ^^ ^^^ notes w^cre endorsed by Ward to Jones, be inquired with full knowledge in Jones, of the circumstances under which they were given, he having been the principal in the negotiation, BILLS AND l^iOTES—Beiioeen intermediate parties. 219 and as the notes were endorsed by Jones to his son, after they were due, and with full knowledge, also, in the son, of the ori- ginal nego'tiation, I consider the merits of the case between the parties, the same as if the suit was in the name of the original payee. The defendant is entitled to go into the consideration of the note. 4. Emerson v. Crocker. Feb. T. 1830. 5 New Hamp. Rep. 159. One Daniel Cummings gave to the plaintiff two notes, made y/hr ,o a by Caleb Cummings, payable to Daniel Cummings, or or- P.°'^s"'i 'ho takes it must stand in the situation of the agent ; 3 D. & E. 80 ; Brown v. Davis ; 2 New. 170, Goggerly v. Cuthbert ; 2 Gain's Rep. 369, Furman V. Harkins ; 2 Caine's Rep. 308, Johnson v. Blood- good ; Chitty on Bills, 106. 129, 1 Co wen 387, Havens v. Hun- tington. In the case now before us the notes had remained unpaid more than ten months, when the defendants received them. And we are of opinion, that in general such notes must be considered as dishonoured notes after the lapse of that time. Judgment on the verdict. 5. Russell V. Ball, et al. Nov. T. 1805. 2 Johns. Rep. 50. Jissumpsii hy the plaintiff as indorsee of a promissory note Ths maker against the makers. The note was endorsed in these words : show^tha '• Vergenes, 5th Feb., 1798. considera I do hereby appoint the contents of this note to be paid to note uiJesa 220 it has be come due before it was trans ferred. BILLS AND '^OTES.—Consiaeramn of. John Russell, at his or any other future endorser's risk of col- lecting the same of the drawers of said note, and it is under- stood, that I am not to be made liable to pay the same on the failure of the drawers, or any indorser, as the note was taken without my knowledge. Z. BOOTH. Per Cur. Livingston., J. If a promissory note be^made payable to order., it is perhaps, never necessary for the in- dorsee to prove that he gave value for it ; nor has the mak- er been permitted to go into its real consideration, unless it be such as to render it void by statute, or unless it had become due before it was transferred. Now although the plaintiff here has shown no consideration, the indorsement imports one ; and no circumstances are to be discovered, in the transaction to justify the application of a rule, which in securities intended to pass as cash, cannot be restricted. If a man carelessly, or by imposi- tion, gives a negotiable note it is better he should pay it, than to allow him, on light grounds, to shake the title of a third per- son. The payee's qualified endorsement, or his declaration, that he did not know on what consideration it was made, cannot impair the endorsee's right acquired under tliis transfer. 0. A holder of a note ob tained by- fraud can not recover by his ino cent endors Tallman v. Gibson. Dec. T. 1828. 2 Hall's N. Y. Rep. 398. Per Cur. Oakley., J. It is believed to be well settled, that if the holder of a note obtains it by fraud, he cannot nraintain an ac- tion upon it against any of the parties, to it. He must aver and prove (hat the note was transfered to him; and though his posses- sion of the note is 'prima facie evidence of the transfer, yet if the defendant can show that the plaintiff obtained the note by his o^^^a fraudulent act, he has a right to defeat the action on that ground, although he may be liable to pay the note to the true owner. It is a general doctrine, that no man can acquire a right by his own fraud, to sustain an action in any court, and is a principal of universal application. (C) Illegality of. consideration. 1. Roll v. Raguet. 4 Hammond's Ohio cond. Rep. 842. (400.) A note giv Error to the Common Pleas. en to stifle a -n ^ ^ -ii -nn prosecution Raguet brought a suit below against Roll, upon a promissory ''^°^^ note for $500. Bills and notes.— ///e^a/% o/. 221 Plea in bar by Roll, that the note was given to stifle a prose- cution for felony.* Demurer and joinder. Judgment for defendarit. Per Cur. Any contract, the consideration of which is to conceal a crime, or stifle a prosecutiofi is void. Judgment reversed. Vide 4 Johns. Rep. 419 ; l2 Johns. Rep, 303 , 19 Johns. Rep. 341 ; 3 Cowen, 213 ; ,11 Johns. 388. Bliss v. Negus. Sept. T. 1811. 8 Mass. Rep. 46. Per Cur. A promissory note given in consideration of the J/J^j^,^,^^^ assignment of a patent right which had been fraudulently ob- of a^patent tained, was held void, although certain materials had been furn- ^,ientiy ob ished, and certain instructions given by the promisee to the Gained, promiser in the art described in the patent. 3. Jones v. Casv/ell Jan. T. 1802. 3 Johns. N. Y. Cas. 29. Jissumpsit UT^ow several promissory notes, which were given pi"'? "Resist by the defendant to Jones, to induce him to desist from bidding an auction at an auction sale of land. ^'^ ^' Per Cur. The forbearance of bidding was, therefore, the real consideration, and I think it a consideration, which ought not to be sanctioned in a .court of justice, and the consideration of the notes was illegal and void. Payne v. Eden. Augv T. 1805^3 Caine's N. Y. Rep. p. 213. S. P. Waite v. Harper. 2 Johns. Rep. 386 ; Yeomans V. Chatterton. 9 Johns. Rep. 295. Assumpsit by the holder of a promissory note made and en- So vvrhcre dorsed under theTollo wing circumstances. v/asto be The defendant seeking relief under the insolvent act, applied JJ™^^^''" to John H. Hurtin, on^ pf 1 i : rreditors to sign his petition" creditor, un der the in solvent act. * The principles in the text a^re-o v.iUi Iho law in Great Britain; Guichard v. Roberts, 1 Blk. Rep, 445 ; Scott v. Gilraore, 3 Taun. 226 ; Wallace v. Hardacre, 1 Campb. 45. So tlic court held the consiusrationvoid, where it appeared the bill had been given for abstaining from moving the court. against the defendant for a misdemeanor; Pool v. Boosfield, 1 Campb. 55. Butnot when given on compound- ing a civil action ; Harding v. Cooper, 1 Stark. 467. So a bill given to obtain a discharge from custody fov penalties, is good ; Pilkington v. Green, el al. 2 B. & P. 151. 222 BILLS AND NOTES.— Consideration oj. This he agreed to do on receiving the amount of his debt by a promissory note, with a blank for the date, to be filled up after the defendant had obtained his discharge, which was done and the note transferred to the plaintiff. Per Cur. This action* we think cannot be sustained. The consideration, for which the note in question was given undoubt- edly was, that the payee should become, under the insolvent act, a petitioning creditor for the maker, though for a debt bona fide due. Why the defendant, under the circumstances stated in the case, should be induced to give the note, is not easily discerni- ible. He had a competent number of petitioning creditors with- out Hurtin. But, whatever the reason might have been, the in- ducement for giving the note, according to the facts stated in the case, was, that Hurtin should become a petitioning creditor. We consider the transaction to have been founded in fraud, and against the policy of the insolvent act. Tucker v. Smith. April T. 1827. 4Greenleaf's Me. Rep. 415. S. P. Thurston v. M'Kown. 6 Mass. Rep. 428 ; Ayer V. HuTCHiNS. 4 Mass. Rep. 372; Loomis v. Pulver. 9 Johns. Rep. 244. fraudof"the Jissunipsit on a promissory note made by the defendant to his nension gon George Smith, and endorsed to the plaintiff. The note was given with the fraudulent intent of reducing his property to qualify him to be put on the pension roll of the United States. At the trial, the defendant proved that George Smith, the payee admitted he received the note of the defendant without consider- ation that it was over due, when endorsed to the plaintiff. The judge charged the jury that the action wps to be tried upon the same principles, as if it were between the original parties to the suit, and as the original payee could not. recover so neither could the endorsee. Verdict for defendant. Per Cur. We find that a defence arising from proof of an illegal or fraudulent consideration, has been received against an endorsee, who became such after the dishonor of a note, as well as a want of consideration. It is well known, that where a note has been endorsed after it is due, it is open to every ground of defence which would have been sustained by the original par- ties. Judgment on the verdict. BILLS AND NOTES.— Illegality of. 223 6. WiGGEN & WiGGEN V. BusH. Aug. T. 1815. 12 Johns. N. Y. Rep. 306. S. P. Payne v. Eden. 3 Caine's Rep. 213 ; Yeomans v. Chatterton. 9 Johns. Rep. 295 , Little V. Obrien. 9 Mass. Rep. 423; Jones v. Caswell. 3 Johns. Cas. 29. Assumpsit on a promissory note made by the defendant and ^"■^'^j^'"^"' endorsed to the plaintiffs. It appeared at the trial, that the note was given to prevent the opposition of the payee against the defendant's application for the benefit of the insolvent act. Per Cur. Yates., J. The transaction from its very nature, must operate fraudulently, and ought not to be countenanced. Not only true policy, but the spirit of this statute, forbids such transactions. It is at all times intended by the legislature, to effect an equal distribution of the insolvent's estate, and secure equal advantages to the creditors : and, although the giving of this note, and the payment of it afterwards by the insolvent, would not, as to that amount, lessen their distributive shares in his estate ; yet, the suppression of facts producing such a result, which might be the case, is alone, in my view, sufficient to prevent the recovery now sought for. Plumer v. Smith. Jan. T. 1832. 5 New Hamp. Rep. p. 553. Per Cur. Richardson. C. J. A note eriven for money know- Or for the 1 , ._..., purposs of mgly lent to suppress a prosecution for a crime, is void. suppressing a piose "^^ ofabonafi As to the doctrine of nf^TTvy upon the discount ol see ae endorsee _ ' even with the following cases ■- ott's Ex. 1 Bay's Rep. 307; oftheusu ChurchhiTl v. Sutter., -i : riss ).ep. 156'; Portland Bank v. Sto- »T- ver, 1 Mass. Rep. 433 ; Jones v. Hake, 2 Johns, Cas. 60 ; Mush- grove V. Gibbs, 1 Daft's Hep. 216 ; Wyckoff .v. Longhead, 2 ball's Rep. 92 ;Northampton Banlc v. Allen, 10 Mass. Rep. 84; Thompson v. Thompson, 8 Mass. Rep. 135 ; Munnv. The Com- mission Co. 15 Johns. Rep. 44 ; Bennet v. Smith, 15 Johns. Rep. 355. 11. Sw^ayze v. Hull. Sept. T. 1824. 3 Halst. N. J. Rep. 54. Or to pro Certiorari. Declaration of plaintiff's demands were in these cure the in , tcrestofa WOrdS : Em^^" "The plaintiff demands of the defendant, v^-, due to the ■^ Usury is part of the consideration of a bill or note, and renders them invalid ; Harrison v. Haunell, 5 Taun. 780., A bona fide sale of a bill for less than its amount is not usury ; Rex v. Ridge, 4 Price, 50. But if a principal draw bills and throup-h an agent procure money to-be raised upon tliem at usarious discount, it is usury ; ibid. And where an innocent holder of a bill affected by usury upon being made acquainted with the usury, made himself a party to a new bill*, the court held that no action could be sustained on the new bill; Chapfnaii y. Black,2B. & A. 588, And the court held, that where a party was'compclled to takfe goods at an usurious price on discounting a bill, it was usurious; Pratt v. Wiliey, 1 Esp. 40. Where a security is taken in lieu of another, void'in respect of usury, it will be in- valid in the hands of the parly to the first illegal transaction, but not in the hands of a bona fide holder ; 2 Esp. 210 ; 4 Pctersdorff 's Abr. 341. A bill of exchange good in its inception, usury in t'.ie intermediate endorsements, will not avoid it in tho hands of a SoTia^ide bolder ; Parr v. Eliason, 1 East.J92. • BILLS AND ^OTES.—IUegaiity of. 225 plaintiff on a note of hand, given to him by the defendant for $50, bearing date the 24th February, 1816, which note accord- ing to a condition contained therein, became due in the fall of the year 1816, after the fall's election, provided the said Swayze succeeded in getting the sheriff's office, and the said Samuel Hull, gave him his interest in getting said office, all of which provisions and conditions have been fully complied with, by the said plaintiff, and the said defendant was really appointed sher- iff." , , Per Cur. There is no doubt it is a corrupt and void agree- ment. 12. Strong v. Tompkins, et al. May T. 1811. 8 Johns. N. Y. Rep. 76. S. P. Reed v. Pruyn & Statts. 7 Johns. , Rep. 425; Love v. Palmer, et al. 7 Johns. Rep. ^'p. 159. . - Assumvsit bv the endorsee against the maker. ^\ ^ "o'e Jr J o ^ taken by a Per Cur. The plaintiff as duputy, took the note in question, sherifFm instead of taking bail. He took it by way of indemnity, and bail bond! under a penalty of a forfeiture of the note, if he was not indem- nified and the note was to be applied towards the settlement of the demands, for v,diich the parties were sued. All this agree- ment was absolutely voidj^by the statute Laws, vol. p. 210. 13. Singleton v. Bremar, admx. Jan. T. 1824. 1 Harper's S. Ca Rep. p. 20J. S. P. Rugely, et al, v. Davidson. 2 Const. Rep. 40 ; Finck v. Cox. 18 Johns. N. Y. Rep, p. 145. Assumpsit on promissory notes. The defence was, that they^etween were either nudum pactum, or ex turpi contractu being for j5a5^ iY- partieslt licit cohabitation.* veYtobi"'' Per Cur. JVott. J. As between the immediate parties to a ^Y"'^°"f ^"'^ , . ^ -^ sideration negotiable instrument, or to the transfer cf such an instrument, although it is competent for the defendant, notwithstanding the words, the wmds^ " value received," to prove that no consideration had in fact pas- "value re ceived " are * It is held thatprti7 seduction is a good consideration ; 4 PetersdorfF's Abr. 335; but not an agreement for future illicit cohabitation; ibid.; 2 Peere, W. 4C2; 15 Vcsey, 232. Or in restraint of marriage, or to procure a marriage, or recommenda- tion to an unvendible office ; Bro. C. C. 114. Fide the statute 16 Car. 2. ch. 7. s. 3. and 9 Anne, ch. 14. s. relative to note, bills, &:c. declared void for money won and lost at play ,- Pvobinson v. Bland, 2 Burr. 1077; Handersoa v, Benson, 281 ; Edwarda V. Dick, 4 B. & A. 212. Vol. IL 29 226 BILLS AND ^O'TES.—AlieraHon of. sed from the plaintiff; and in further illustration of the rule, we are almost daily in the habit of permitting the drawer of a note to show that it was given for the accommodation of the payee, although expressing on its face, to be for value received. VL ALTERATION OF.* A note Goodman v. Eastman &" Harford. Nov. T. 1828. 4N. Hamp. Rep. 455. S. P. Canning v. Pinkham. 1 New Hamp. Rep. 353 ; Storer v. Logan. 9 Mass. Rep. 59 ; Thurs- ton V. IvI'KowN. 6 Mass. Rep. 428. madeb '\ -^^sumpsit On a note made by the defendants payable to Bell. and B., and Eastman, one of the defendants admitted he signed the note R bcfcrSt ^""^ ^''^^ Harford, who had been defaulted, the otiier defendant is delivered altered the note, by inserting the words " one hundred and," be- ee, cannot ^^^^ "twenty," and then passed i't to the payee, be recoyer ^ -j^j^g ^^^^^ instructed the j ury, that if they believed the altera- tion was made by Harford, after Eastman had signed the note, without his consent, the defendant v,'as entitled to a verdict, even * It is a general rule, that, the alteration of a bill or note, in any material part (though by consent of all parties) after it is once issued, violates the securities, un- less it be made to correct a mistake, or to render the instrument '.vhat it originally was intended to be; 4 PeLersdorff 's Abr, 348, note. A bill may be altered in date before aeceptance by consent of parties ; Kennerly v. Nash, 1 Stark. 452. And ia the date ; Walton v. Hastings, 2 Chitty's Rep. 121. So a bill altered in date after acceptance, but before it was put in the endorsee's hand, the court held the bill val- id ; Johnson v. Gernett, 2 Chitty's Rep. 122. So an accommodatioii bill altered ia its date before negotiation without the assent of the acceptor, is valid ; Johnson v. Gibb, 2 Chitty, 123 ; Downes v. Pachardson, 5 B, & A. 674. But where the bill is not an accommodation bill, and is altered under similar circumstances the bill is void ; Johnson, v. Gibb, 2 Chitty, 123. An alteratibh an a bill of exchange as to the time of -payment renders it unavailing in the hands of a honajide holder for a valuable consideration ; Master v. Miller, 4 T. R. 320. And the same consequences follow wlien t'le alteratiog is made by a more stranger ; Calvert v. Roberts, 3 Camp. 343. But if a party acquiesce in the alteration with a full knowledge of the facts, the bill is valid as to him ; Masters v. Miller, 4 T. R. 320 ; Paton v. Winter, el al. 1 Taun. 420. Altering the acceptance by inserting a new. place of payment vacates the acceptance ; Tidir.arsli v. Grover, 1 M. & C. 735. Or if the drawer, after acceptance, payable generally alters it lo a particular place, the acceptor is dis charged; Cowie v. Halsal!, 4 B. & A. 197. Or in the amount of the bill; Trapp v. Spearman, 3 Esp. 57. Any alteration in a bill or note, which does not vary the responsibility of the parties will not vitiate it; .Marson v. Pettit, i Campb. 82. Nor is a bill vitiated by a tliird person by mistake, cancelling the acceptance ; Raper v. Birkbeck, 15 East. 17. No.r where an alteration is made by the consent of all par- ties, in order to correct a mistake; Kerehaw v. Cox, 3 Esp. 246. BILLS Al^D :^0'VES.— Alter ation of. 227 thoiio-h the alteration was made before the note was delivered to the payee. Verdict for the defendant. Per Cur. Richardson, C. J. If this defendant can be held in this case, the principle by which he inu^t be held chargable, will render every man, who signs and sends into the world, ne- gotiable paper, and every bank who issues bills, answerable to innocent holders, for any sum, to which they may be altered feloniously. This defendant reposed no confidence in Harford, which can, or ought to render him liable to pay the note ; all that he did, was to put his name to a note for twenty dollars, as surety for Harford. Judgment on the verdict. The Bank op Amehica v. Woodwokth. 19 Johns. N. Y. Rep. p. 391. ^ S. C. 18 Johns. Rep. 315. Assummithy the endorsee of a note ae;ainst the endorser. Inserung ■ •^ '' ■ o - , tj,e place of The note was endorsed by Woodworth for the accommodation payment in of one Kane, and who without the knowledge of Woodworth ofa uote^by inserted in the margin of the note, the words "payable at the the holder Bank of America, J. K.," and procured it to be discounted at endorser's that bank. When the note became, due, payment was demand- «°|;j|'^^' '^'^ ed at the bank, and riotice of non payment given to the endorser, him It was held by the Court, that the memorandum was a mate- rial alteration (overruling the decision of the supreme court, who had decided that the memorandnm fixing the place of pay- ment, was an immaterial alteration) of the contract, which dis- - charged the endorser, and that if it had been otherwise, a demand at the place mentioned in the memorandum, would have been sufficient. 3. Nugent v. Mazange. Spring T. 1812. 2 Martin's Lou. Rep. p. 265. Per Cur. The defendant having passed the note to the plain- ^vhercTitis tiff, after the alteration in the place of payment was made, can- passed to not take advantage of this alteration. It may effect the note as ter its alter to the maker, and the endorsers, through whose hands it passed ^"'^"• before it was altered ; but endorsers, who received and passed it away after, cannot complain. Vide 2 Hayw. 302. 333. 228 BILLS AND ^OTES.—Mteraticn of. 4. Mitchell, et al. v. Ringgold. Dec. T. 1810. 3 Harris & Johns. Md. Rep. 159. S. P. Bank of Limestone v. ■PENicir. 5 Monroe's Ky. Rep. 31. If it bo alter Assumpsit by the endorsees of a promissory note agrainst the ed after U "^ '■ •' ° passes from maker. Aviihout his The defendant proved, from the paper itself, 'that since it had aldiity! '"^ P^s^6^ ^^01^ ^s, the defendant's hands, it had been altered by cutting off, and obliterating the date it originally bore, and by giving it a new and different date, without his privity and con- sent. Per Cur. If the date of a promissory note is altered after it passes from the maker, and without his privity and consent, the note is a nullity as to him. 5. Stepiten t. Graham, et al. Jan. T. 1822. 7 Sergt. & RawPs Penn. Rep. 505. S. P. Bank U. States, v. Russell. 3 Yates 391. cha'no^ino- Held by the Court, Duncan., J. A promissory note of which the date, the date has been altered (for example, from the 25th to the avoids the .. note, inthe 26th of the month) without the consent of the defendant the i>v"ocente^n^^°^^ '^ ^'°^^ though in the hands of the innocent endorsee. The dorsee. alteration does not depend on the accelerating or extending the day of payment or increasing or decreasing the sum but upon the identity and whether the alteration is material or immaterial is a question of law for the Court and ought not to be left to the jury. Vide 3 Crarich, 37. 6. Homer v. Wallace. Sept. T. 1814. 11 Mass. Rep. 309. And so ^i-Miwrni^ on a promissory note, by the payee against the where the , • , . , , • ,•,••. note is wit maker, and signed by a subscribing witness. Jong-^'ime The defendant proved that the plaintiff, a long time after the after the j^te of the note, brought it to the witness, and requested him to handsofthe sign his name, which he did. It was contended by the defend- payee. ^^^^ ^Yi^t procuring a person to sign the note without his con- sent, v/as a material alteration, and vitiated the note. Verdict for plairitiff. Motion for a new trial. Per Cur. Parker^ C. J. We were inclined to think that this act, although unwarrantable, was not a material alteration, but upon farther consideration we think it a material alteration. New trial granted. BILLS AND }^OTES.—Jilterai{on of. 229 7. Heywood v. Pehhii^. Oct. T. 1830. 10 Pickg. Mass. Rep. 228. S. P.Barker y. Prentiss. 6 Mass. Rep.' 430; Ser- geant V. SouTHGATE. 5-Pickg. 312 ; Leland v. Stoke. IQMass, Rep. 461. Per Cur. As it appears on, the face of the note itself that the Either pa» memorandum, "one half payable in twelve months, the balance show the in twenty-four months," w^as not embraced in the body of the '^"■^^^?';;^^'*, '^ . . •' ces 01 the ;« note, but was written at the bottom, after the attestation of the teration. subscribing witness, it was competent for either party to prove by parol evidence, the time the person by whom, and the cir- cumstances under which the memorandum was affixed to the note. These words might have been added after the delivery ofthe note, or by a stranger, or under such circumstances, as not to constitute a part of the contract, between the parties. Cumberland Bank v. Hall. Nov. T. 1822. 1 Halst. N. J. Rep. p. 215. Assumjisit by the plaintiffs, as endorsees of a promissory note, The law against the maker. It appeared the note had been drawn, pay- UmiarTaher able to Clement Acton, & Hedge Thompson, "or their order, "^" ''PP,^'' and was endorsed by Clement Acton & Hedge Thompson, but face of tho the words "and Hedge Thomson," on the face of the note, were ma'debefore erased, so that the note read, "I promise to pay Clement Ac-ifsexecu ton, or their order, &c. The Court held, that the law did not presume an alteration apparent on the face of the note, was made after its execution, but whether so made, or not, is a question for the jury to decide, and not the Court. Vide 2 SoutJu 737. 9. Gray, et al. v. Wood, et ux. 2 Har. & Johns. Md. 328. Held by the Court, that a promissory note is not invalidated And it may by being antedated. ^^ antedat 10. Patton v. State Bank. May T. 1820. 2 Nott & M'Cord's S. Ca. Rep. 464. S. P. Armat y. Union Bank or Geogetown. 2 Nott & M'Cord^s 471. (Note.) Per Cur. Johnson, J. As to the efTect of cutting, or severing But cutting , orsecurin a note or the note, or bill, or its negotiability, the practice of cutting °'"^^'^'^™~ 230 BILLS AND NOTES.— ^/^era^on of it^ ne^cHa^ '^^^'^ ^°^ ^^ purpose of transmitting them by different convey- bility. ances, had its origin, unquestionably, in an opinion, that it de- Btroyed its negotiability. So far, therefore, as usage could have any influence, as to the legal construction, it favours the conclu- sion, that a severance of the note, destroys its negotiability. Bui I am fully satisfied, that such is the legal effect, both on authori- ty and principle. 11. Stagg, ET AL. V. Pepoon. Jan. T. 1818. 1 Nott & M'Cord's S. Ca. Rep. 102. Or by inser Held by the Court, that the insertion of the words "or order ^^"^ woi'd"or in a promissory note, by the holder, destroys its validity, der" by the holder. 12. Bowers v. Jewell. April T. 1823. 2 New Hamp. Rep. 543. S. P. Martindale v. Follett, 1 New Hamp. 96. And wheth The note was made on the day it purported to be dated. It cr S-Itcrcd j i. i. withafraud bad been written by mistake, A. D. 1809, and was altered to ulemnuentA.D. 18l9, by the payee. proper for Pg^ Cur. Woodbury. J. This alteration was made after the the jury. . "^ execution of the note ; and the ncle being under the controul of the promisee, must be presumed to have been altered by him- self, or by his directions, but this presumption may be rebutted, and whether done with fraudulent motives, or not, must be set- tled by the jury. 13. Bank or Virginiav. Ward. March T. 1818.6 Mumf.Va. 169. The owner rpj^g owner of a bank note transmitted one half of it by mail, may recov . *^ eronhalfof which was lost, or stolen. The Court held, iiOfme, J., that the bona fide owner of a bank note having transmitted one half thereof by the mail, which has been stolen or lost, cannot demand payment of the bank, of any part of its amount, in consequence of holding the retained half, merely, but may recover, on giving satisfactory evidence of the facts, and indemnifying the bank. 14. Moody v. Leavitt. Feb. T. 1820. 2 New Hamp. Rep. 171, Or upon a Assumpsit on a note payable to one Fogg, or order, and by whichana ^"^ endorsed to the plaintiff. It appeared Thomas Leavitt BILLS AND NOTES — Alteration of. 231 made the .note, and an agreement was entered into between peement ' o . I 1 • 1 '^^^^ been at Fog-or & Lt avitt, that Leavitt should do certain acts, and on which tached and being dont, Fogg was to release allclaima upon the note andy-"'"'^ the paper, on which was contained the note and agreement, was left with a third person, wrho in case Leavitt failed to do the acts was to deliver the note to Fx)gg. Leavitt failed to do them. And the third person, tore the note from the agreement, and delivered it to Fogg, who transferred it to the plaintiff. Held by the Court, Green, /., that the action could be sus- tained. 15 BaoADWELL V. Stiles. Nov. T. 1824. 3 Halst N. J; Rep. p. 58. Held by the Court, thtt a person who voluntarily erases his A P^^F^.y ®^* name written on the back of a promissory note, will not be per- name from mitted to prove that the endorsement thus obliterated is not^^U°^^|^^^ genuine. • i"e. 16. BoGAST V. Nevins, et al. Jun. T. 1821. 6 Sergt. & Rawle's Penn. Rep, 361. Per Cur. A. having accepted two bills of exchange, for near- And where ly the same amount, on the same day, sent his clerk to the per- pays a bill son, in whose hands they both were, as agent of two diiferent fP*^ ^'"^^^ ' J 7 fc li]s name by holders, to take up one of of them ; but the clerk took up the mistake the other, and brought it to A., who struck out his name as accep- ^le discheir tor. In abouut five minutes from the time he received it, he S^d. wrote his name again under the acceptance, and sent it back to the agent, who received it and gave up the other bill. Held, that the bill first taken up, was paid and the endorsers discharg- ed. 17. Stahl v. Berger. June T. 1823. 10 Sergi. & Rawle's Penn. Rep. 170. S. P. Smith V. Crook. 5 Mass. Rep. 538 , • WooLEY V. Constant. 4 Johns. N. Y. Rep. 59; Seig- freid v. Levan. 6 Binney'sPenn. 810. o , , J . But were Held by the Court, Duncan, J., that if a blank be left in a a blank is • 1 1 -11 1 • . Ill • /. 1 ^leftforthe single bill, when it is executed by the parties, for the name of name of the the payer to be inserted, with an intention that it shall be filled P^^^^^^^^^ up, when the money is advanced by him, and an authority is giv-icdupaf en to that effect by the obligor, and the money afterwards is ob-eu\ed. 232 BILLS AND ^OTES.— Acceptance of. tained, and the name inserted j this is not such an alteration as avoids the bill. .'2?id see Moore v, Bickkam''s Lessee, 4 Binney, 1. VIL ACCEPTANCE OF. (A) Presentment for. 1. Wallace v. Agry. May T. 1827. 4 Maso-n's U. S. C. C. Rep. p. 336. S. P. Murray r. Judah. 6 Cowen's N. Y. Rep. p. 484 ; Aymar v. Beers. 7 Cowen's Rep. 705; Cru- GES V. Armstrong. 3 Johns. Cas. 5; Conroy v. War- ren. Id. 259. Kan b? P^^' ^^^^' ^'^'>'y^ J' No absolute Yule can be laid down, as laid down to the time, within which a bill must be presented for acceptance.* when n bill , , should be The only rule is, that it must be presented within a reasonable for^accept *^^^ ' ^^^- ^^^^'^^ ^^ ^ reasonable time, depends upon the circum- ance. stances of each particular case. 2. Fernandez V. Lewis. May T. 1821. 1 M'Cord's S. Ca. Rep. . p. 322. ment and Pco' Cur. The holder of a bill cannot retain it in his posses- begiven hf ^^^"^ for such a length of time as may occasion a loss to the areasona drawer, but ought to present the bill as soon as possible, and must be done in a reasonable time. Aymar v. Beers. Oct. T. 1827. 7 Cowen's N. Y. Rep. 705. S. P. Fukman v. Haskins. 2 Caine's Rep. 372; Bank OF Columbia v. Lawrence. 1 Peters' Rep. 578. 583. What is a Per Cur. Woodworth,. J. What is a reasonable time, is a reasonable _ '< ^ . ' tii*e, is a question of law under the circumstances of each particular case., question of , .• r x- j. c jt • law. ^^'^ ^ question ol lact tor the jury. * By accepting the bill the acceptor adopts it in all its terms ; Robertson v. Ken- sington, c^nl. 4Taun. 20. He admils the ability of the drawer to make the bill ; Parthouso v. Parker, e^ al. 1 Campb. 82. He admils the signature of the drawer; Willdnson v. Lutwich, 1 Slra, 648. But tiie acceptance doss not admit the signa- ture of the endorser; Smith v. Chester, 1 T. R. 654. Upon a bill payable to the drawers order an acccptanco admits the drawers ability to endorse; Taylor v. Croker, 4Ejp. 107. BILLS AND NOTES. -^p7-e5cn.'m-n//or. 233 4. Bolton, et al.v. Harrod, et al. Mnrch T. 1S21. 9 Martin's Lou. Rep. 356. S. P. 2 Marshall's Rep. 4^4. Held bv the Court, Mathews, J., that where the h \Ie- of a -"^ '^j ' "«ted till a na- vy bill wa.s paid" was held a valid acceptance ; Picrson v. Dunlop, el al. Cowp. 571. » So where the drawee answered that he would a(;cei)t when a "tdiip arrived "or cer- tain goods were sold ; Sproat v. Mathews, 1 T. R. 182; Smith v. Abbi)lt, It Stra. 1152- So also v.'hcre the drawee agreed to accept on the arrival of bills ( f I.-iding Laing v. Barelcy, 1 B. & C. 398. Or to pay part of the sum for which tho bill is drawn; Wcggerloflf v. Kcene, 1 Stra. 214, arc good acceptanciea. Vox.. II. 30 234 BILLS AND l^OTES.— .Acceptance of. reasonable time. What is reasonable time, depends upon the par- ticular circumstances of the case ; and it is for the jury to deter- mine whether any laches is imputable to the holder. As it was incumbent upon the holder to have presented it for acceptance within a reasonable time ; so on refusal to accept, notice must be given as soon as possible to the persons on whom the holder means to resort for payment, or they will, in general, be totally discharged from responsibility. Where the bill was dated June, the lllh, and drawn upon a person in New York, payable three days after sight and the holder went to New York, and resided in the house with the person on whom the bill was drawn, until the 24th of Aug., when demand and protest was made, the Court held the holder was guilty of laches. 6. Washington Bank v. Triplett. Jan. T. 3828. 1 Peter's U. S. Rep. p. 25. It need not p^j. c^ir. MarshalL C. J. A bill of exchange, payable af- be p.-eseiit ' i i ed iiefore ter date, need not be presented for acceptance, before the day oayment.' of payment ; but, if presented, and acceptance be refused, it is dishonoured, and notice must be given. 7. Washington v. Bank v. Triplett. Jan. T. 1828. 1 Peter's U. S. Rep. 25. S. P. Mills v. Bank of the United States. 11 Wheat. 431 ; Brent's exrs. v. Bank of THE Metropolis. 1 Peter's Rep. 89. Local iisnge Per Cxiv. Marshall^ C. J. The usage of the place in which tiie number the bill isdrawn, or where payment is demanded, uniformly reg- ofdaysoi ulates the number of days of grace, which must be allowed. giace, J r> 7 (B) Of the terms, &c., of the acceptance. 1. Campbell v. Petting, et al. July T. 1830. 7 Green- leaf's Me. Rep. 126. ed acccp ^ssii7npsit on QVi Older j drawn by the defendants, in these tance the ^yords : holder can _ ^ -. o • r>r.i-* only resort Urono^ June, 13, 1827. ^■\,nsuch'^ Thomas Bartlett, Esq., collector and treasurer of the Penob- limi cd and gcot Loom Corporation, please to pay Henry Campbell, or bear- coiid liiDil . "in, * r ^ acccjHauce. er, ninety spven dollars, and seventy-seven cents, lor value re- ceived. The acceptance was in these terms : "July 9, 1827, BILLS AND NOTES.— 0/ the term, $)X. 235 accepted to pay when, in funds of the Penobscot Loom Corpo- jralion. THOMAS BARTLE TT, Treasurer. The defendants made no objection to the want of notice, but declined paying it, becau e they were not in funds. The treas- urer had no cash, or funds in his hands, but held negotiable se- curities and other evidences of debt, to the amount of the bill. Per Cur. IVesio?}., J. The holder of the bill, might have re- quired an absolute acceptance, without which he might have treat- ed the bill as dishonoured, but having received a special accept- ance, he must abide by its terms. It does not appear that there has been any failure, on the part of the acceptor, to pay accord- ing to the terms of the acceptance. Judgment for the defendants. 2. Peck v. Cochran. Oct. T. 1828. 7 Pickg. Mass. Rep. 34 Jissumpsit on an order, payable at sight, drawn by the deputy "J^'^f^ ^'^* post master general of the United States, at Washington, upon said he had the defendant, who was post master in this state. It was pre- b^!/"^"o,j'|d sented by the agent of the plaintiff for acceptance and payment, -^"^^^e"' it but the defendant said he had no funds in his hands then, but q, loiter, said he would answer it at the commencement of the next quar-'"^^*^ ""''*^ " cepiLince. ter, which would be in about sixty days. The agent replied he would return it to the holder, who would send it back to the drawer. It was again presented in about four months, when payment was refused. And the question was, whether this was an acceptance. Per Cur. It appears clearly, there was no contract between the parties. The offer to pay at a future day, would have been an acceptance, had the plaintiff's agent acceded to it ; but he did not, and said he should return the bill. 3. Washington Bank v. Triplett. Jan. T. 1828. 1 Peters' U. S. Rep. 25. Per Cur. Marshall, C. J. The absence from his home, of Merc n!) the drawee of a bill, payable after date, when the holder of a i';,,"^,? [[.Ji'J^n bill, or his agent, calls with it for acceptance, is not a refusal to •'^^'" '^i""'*^ accept ; but such absence, when the bill is due, is a refusal to '^ioiaVcfus pay, and authorizes a protest. «' '<^^<^ 236 BILLS AND NOTES,— .^crep/ance oj. 4. Brown, et al. v. Coit. May T. 1821. 1 M'Cord's S. Ca. Rep. p. 408. A condition The defendant accepted a bill of exchange, upon condition uncelsnot'^^ sold certain goods before the bill became due, which were binding consigned to him. Before the bill became due, the goods were vhcrc the condiiiou :$ attached by a creditor of the drawer. noiperforn p^^. ^.^^^._ Hugp', J. The que.stirn is rs to the liability of the defendant, his acceptance being conditional, he could only be- come liable on the performance of the condition. He agreed to pay the bill on the day it was due, if he could sell the goods ; but before that day, the goods were attached ; and it was, by the operation of law, out of his power to sell ; they had in the words of the act, " been made liable in law, to answer any judgment that shall hereafter be recovered and awarded up- on that process." The event then did not occur, upon which he was to become liable, and its non-occurrence was not the ef- ' feet of his contrivance, nor was it in his power to avoid it. If a merchant undertake to accept a bill, on condition that a cargo of equal value be consigned to him, and the cargo consigned, be not of equal value, he is not bound to accept; Douglass, 297. Or if he promise to pny a bill, provided a certain vessel consign- ed to him shall arrive, and she is lost, he is not liable. If he accept on any condition, the performance of which is prevented by the act of God, he is not liable ; neither can he be liable when the condition is prevented by an act of the law. 5. TucKERMAN, ET AL. V. Hartwell. July T. 1824. 3 Green- leaf's Maine Rep. 147. S. P. Varner v. Noblebor- Iftothsac OUCH. 2 Greenleaf 's Rep. 121. "biU^a^a^i- -Assumpsit by tlie plaintiffs, as endorsees against the defendant ticuiar as a drawer of a bill of exchange, in these words : place of pay mem is ad c*440. tlte'hoi'deVs Sixty days after date and grace, pay to the order of Messrs. conseni, itisWhittier & Tuckerman, four hundred and forty five dollars, val- » P^rt of -111, / , the con ^^ received, and place the same to account of your obt. servt. *'*"• JOHN T. HARTWELL. Joseph T. Wood, Esq. ^iugusta. May 16, 1816. The acceptance was written across the face of the bill, in these words : " Accepted to pay in Boston, Joseph T. Wood," and at the bottom of the bill, was written in a hand scarcely leg- BILLS AND NOTES.— l2G5i% and discharge of. 137 ible, the name of " A. F. Howe, & Co.," which it was contend- ed was part of the acceptance. It was proved at the trial, that the bill was presented for pay- ment al the counting room of A. F. Howe, & Co., on the 19th day of July, I8l6. The court charcred the jury, that if they were satisfied that the name of A. F. Howe, & Co. were placed on the bill by the acceptor, at the time of the acceptance, and was intended to designate the place in Boston, at which the bill should be presented for payment; and that the plaintiffs knew it was so intended, and where the place was, it was incumbent on the plaintiffs to prove a demand at that place. But that a pre- sentment on the 19th of July, was too late. Verdict for the plaintiff, subject to the opinion of the court. Pe?" Cur.» J!/.'.'/f??, C. J. If to the acceptance of a bill is ad- ded a particular place of payment, with the assent of the holder, such memorandum is part of the contract, and it is for the jury to determine when, by whom, and for what purpose the memo- randum was placed there. A.s the bill in question is general in its form, not specifying any particular place of payment ; and as the restriction relative to the place of payment was inserted by the drawer in his acceptance, he lad as much right to make the bill payable at a particular store in Boston, as in Boston generally. Now in the body of the acceptance, Boston is made the place of payrr.ent ; and in the memorandum at the bottom of the bill the store of A. T. Howe, & Co. is made the place ; and as the jury have found that all was written at the same time, and for the same purpose ; and as this restricted acceptance was not objected to by the holders of the bill, nor the bill protested on that accoun', as it might have been; and as knowledge of all this was given to the plaintiffs, as the jviry have found; all par- ties must be considered as having assented to this limited accep- tance, and must be bound by it. (C) Liability and discharge or the acckptor.* * An acrepldr is ptimarily liaMc to pav the bill accortiinjj to t!)C terms of liis ac- ceptance, niid the drawers and ciicioi;-eis arc s-cco!idari!y liabie on Ins default; 4 Pe- tersdoifT'.s Abr. 377. Ai:d an accept^inca may bo discliarged by parol ; \\hatl('y,r/ nl. V. Trick'oy, et al. 1 C!am[ib. 35. And on a virtual accf.t plancf, in ( oi'sidi rat on ofgoo'lp, apsigned to pay ihe bill and the" holder takes the go<'ds and sells lliem, tlic acceptor is discliar5i^ by the endorsees against the endorsers, party on The bill was drawn by the quarter master general of the Unit- himselfdoes j Oi. ^ • xt /-> i i r r ^ notrequire ^u otates, m JNewUrleans, on the secretary ol state, for the ser- notice "^ ^"^ ^'^^^ °^ ^^^ government. The bill was presented in due time at the office of the secretary, where the chief clerk wrote thereon, " Presented and will be paid whenever congress make the neces- sary appropriation, G. G." The bill was not protested for non payment. Held by the Court, the bill need not be protested — that if a bill be drawn by a party on himself, the drawing is an act of ac- ceptance, that the general government is the principal of the quarter master general, and is bound. 12. Mason v. Franklin. May T. 1808. 3 Johns. N. Y. Rep. 202. S. P. Weldon v. Buck. 4 Johns. Rep 144. "Where a Assumpsit by the endorsees against the endorsers. good cause . of action Where a bill was drawn on a person at Liverpool, payable in preTem London, and the bill was duly presented at Liverpool and pro- mentand tested for non acceptance, and afterwards protested for non pav- non accep - t • i ^ tance a sub Kient at Liverpool. sequent i"" t) x-, r^ /-^ regular pro -^cr Lur. Kent, C. J. We are of opinion, that a good cause payment" °^ ^^^^°" ^"^"^^ "P°" ^^^ protest for non acceptance, and were does not vi we to admit that the subsequent demand of payment, and pro- test for non payment were void acts, by being made at Liver BILLS AND NOTES.— 0/ tU protest. ZAl pool, they would not destroy the right to recover, which had previously vested. Vide Boot v. Franklin^ 3 Johns. 208. 13. Bank or Columbia v. Lawrence. Jan.T. 1828. 1 Peter's U. S. Rep. 578. A promisso4-y note was made at Georgetown, payable at the (heaileged bank of Columbia, in that town ; the defendant, the endorser of P'*^^^ 9^*^" ... . siness is the note living in the County of Alexandria, within the district sufficient. of Columbia, and having what was alleged to be, a place oj husi-' ness'm the city of Washington ; and the notice ofnon payment of the note, enclosed in a letter, and superscribed with his name was put in the post-office at Georgetown, addressed to him at that place. Held that this notice was sufficient. 14. Bai^k of Columbia v. Lawrence. Jan. T. 1828. 1 Peter's U. S. Rep. 578. Per Cur. Thompson., J. The general rule is, that the party ^.j^^Jfj^i^ ^j^® whose duty it is to give notice in such cases, is bound to use '■'ce do not reach the due diligence, in communicating such notice. But it is not re- party, the quired of him to see that the notice is brought home to the party. ^^^"['^^^JgpQj^ He may employ the usual and ordinary mode of conveyance, sible. and whether the notice reaches the party, or not, the holder has done all that the law requires of him. 15. Aymers v. Beers. Oct. T. 1827. 7 Cowen's N. Y. Rep. p. 705. S. P. Robertson V. Ames. 20 Johns. Rep. 146; Field V. NicKERsoN. 13 Mass. Rep. 131 ; Losee v. Dunkin. 7 Johns. Rep. 70. Assumpsithx We endorsees, against the drawer. Thesitua ^ -I ' &_ . tion of the A bill of exchange was drawn in New-York, Dec. 12th, 1822, parties, dis on one Abbott in Richmond, Virginia, payable at three days p^aces°&c. sight, to be borne by the payee, who was then at New-York, to Virginia, about three hundred'miles "distant. The bill was pre- sented for acceptance, on the 10th of January, 1823, (29 days after date) which was refused. The question was, whether, that was such a delay, as would discharge the drawer .'' Held by the Court, it appearing that the payee was unwell and was delayed in consequence thereof, that it was not' such an un- 248 BILLS AND 1^ OTES.— Acceptance of. reasonable delay, as would discharge the drawer, from his lia- bility. 16. Reynolds v. Buford. Aug. T. 1824. 15 Martin's Lou. Rep. p. 35. S. P. Hill v. Martin. 12 INTantin's Rep. 177. Assumpsit by the endorsee, againt the indorser. jno- notice PerCur. Martin, J. The defendant's residence was distant, for 4 days gjx miles Only from that of the makers, and the plaintiff 's agents where the . •' . ' ^_ . . party ic by Withholding the notice three or four days, in our opinion, j"^^ failed to comply with the requisites of the law. sides hut six ini distant, dis cha'-ges the endorser. (E) Consequences of refusal to accept. I. Onawrit RiGGS V. LiNDSAY. Feb. T. 1813.7 Cranch'sU. S. Rep. 500. ten promise ^ -^ • i r>- i ^i * ♦ to accept ^assu7npsit c^g^\nst Riggs, and other co-partners, to recover and retusal from them, the amount of certain bills of exchange. Nourse & the party is ' '=^ liable to the Stewart confessed judgment. Beal w-as returned not found, and drawer. Riggs pleaded the general issue. The bills were drawn on the authority of the following letter, from one of the defendants, dated 4th of January, 1810. Sir — You may hold up what salt you have purchased, &c., in the mean time, you may draw upon us, &c. Lindsey drew several bills upon them, which were presented to the drawees, w^ho refused to accept, or pay them : they were protested and Lindsey took them up. Pej- Cur. Livingsto?}, J. As Lindsey was expressly author- ised to draw, by the letter of the 4th of Jan., 1810, he certain- ly had a right to do so, and whether the defenc'ants accepted his bills, or not, so as to render themselves liable to the holders of them, there can be no doubt, that as between Lindsey and them, it was their duty, and that they were bound in law to pay them. Not having done so, and Lindsey in consequence of their neg- lect, having taken them up, he must be considered as paying their debt, and as this wasno-t a voluntary act on his part, but resulted from his being their surety, (as he may w'ell be consid- ered from the moment he drew the bills ) it mav well be said that in paying the amount of these bills, which ought to have been paid, and was agreed to be paid by the diawees, he paid so much money, for their use. BILLS AND y;OTES,— .Acceptance supra protest. 249 Lenox v. Cook. March T. 1812. 8 Mass. Rep. 460. S. P. Mason v. Franklin. 3 Johns. N. Y. Rep. 202 ; Miller V. Hackle Y. 5 Johns. Rep. 375; Sterky v. Robinson. 1 Day's Conn. Rep. 11 ; Watson V. Loring. 3 Mass. Rep. 557 ; Wentiirop v. Pipoon. 1 Bay's Rep. 468; Welden v. Buck. 4 Johns. Rep. 144. Per Cur. When one draws a bill of exchange, he hereby en-^gg^^^P.^j^j^ gao-es that the drawee shall accept the bill, when presented for acceptance ,, ,Tin •! 11 4. 1 a right of acceptance, as well as that he shall pay it, wnen duly presented action im for p'ayraent, at its maturity. When acceptance is refused by mediately the drawee, a right of action accrues to the holder, after due notice. He is not bound to demand payment at the time the bill fallsdue, nor to protest for non payment, nor to retain the bill for that purpose ; but he may bring his action against all par- ties, liable immediately, on the refusal of the drawee to accept. Vide Greely V. Thurston, 4 Green. 479, Vin. ACCEPTANCE SUPRA-PROTEST. 1. KoNiG V. Bayard, et al. Jan. T. 1828. 1 Peter's U. S. Rep. 250. Assimipsit on a bill of exchange drawn by John C. Delprat, ^y]fo'!^p.o'^ of Baltimore, on Messrs. N. & J. & R. Van Staphorts of Amster- protest of a dam, in favour of Le Roy Bayard & Co. of New York, and en-gd bill of ex dorsed by them. The bill was presented to the drawees, and change protested_for non-acceptance. It was afterwards accepted and the honour paid by the plaintiff for the honour of the defendant. erordraw^ The bill was presented and protested, and the plaintiff gave ^'"'."'.Y^'^® immediate notice of the dishonour of the bill, and their inter- them the vention for the honour of the defendants. Messrs. N. & J. & R. ^'"'^'^"'■' Van Staphorts, addressed a letter to the defendants, dated the 26th of November, 1822, giving notice that the bill was dishon- oured ; the drawer having no right to draw, and that they were advised by counsel not to interpose, in their own names, for the honour of the defendants. The letter adds, " In this predica- ment we applied to our friends, Wm. Ronning & Co. who had the said bill in hand, informed them of the whole case, and requested these gentlemen, under our guarantee, to intervene on behalf of your signature, wuth acceptance and payment of the above bill ; which favour, these gentlemen have not refused to us ; so that^ Vol. ir. 32 250 BILLS AND 'NOTES.— Jiccepfance supra proiest without our jjrejudice, and completely without yours, we have duly protected your interest." The defendants also gave in evi- dence, a letter from the plaintiff, stating that he had intervened, at the request of N. & J, & R. Van Staphorts, and under their guarantee ; but that they required him to proceed against the de- fendants, as preliminary to the performance of the guarantee. It was admitted that the bill was drav/n by C. D. Delprat, on his account, and not on any shipment for a debt due from him to the defendants, for advances previously made to him ; and that he had given the defendants an order on N. & J. & R. Van Staphorts, for all balances due from them to him. It is not alleged that the drawees had any funds of the drawer in their hands. Per Cur. Marshall^ C. J. The plaintiff in this case must be considered as the agent of N. & J. & R. Van Staphorts, and as having paid the bill at their instance. All parties concur in stating this fact. The Van Staphorts accept- ed this circuitous course, instead of interposing directly in their ov.'n names, under the advice of the counsel. They, however, immediately stated the transaction in its genuine colours, to the defendants. It is impossible to doubt, that a person may thus intervene, through an agent, if it be his will to do so. The sus- picion which might be excited by proceeding, unnecessarily, in this circuitous manner ; cannot affect a transaction, which was immediately communicated, with all its circumstances, to the persons in v.'hose behalf the intervention had been made ; unless those persons were exposed to some inconvenience, to which they would not have been exposed, had the interposition been direct. This is not the case in the present instance, since it can- not be doubted that the defendants might have availed themselves of every defence in this action, of which they could have avail- ed themselves, had N. &, J. & R. Van Staphorts been plaintiffs. The case shov/s plainly, that the bill was not drawn on funds, and that the drawees were not bound to accept or pay it. No reason, therefore, can be assigned, vvhy the person who has made himself the holder of the bill, by accepting and paying it under protest, should not recover its amount from the drawer and en- dorsers. 2. Lenox v. Leverett. March T. 1813. 10 Mass. Rep. p. 1. Bvt. ihp. .Assumpsit by the holder against the endorser, stiii bound ^^ appeared the bills in this case were presented and dishon- d°tieVa'^r oured, and were taken up supra protest for the honour of the BILLS AND NOTES.— Transfer of . 251 plaintiff, and also that the defendant received no notice of nonP™;Cstsand ^ . . . notices, as if acceptance, within a reasonable time. ' ihebilishad . , not been Per Cur. The bills in this case having faded oi acceptance, paid. were accepted and afterwards paid by a friend of the plaintiff", who had endorsed them, for his honour. This payment did not vary the duties of the holder. He was still bound to cause them to be protested for non acceptance, and at' their rhaturity, to cause them to be duly protested for nonpayment by the drawee. He was also obliged to give the same notice to the^^antecedent parties to the bills, as if they had not been taken up. IX. RELATIVE TO THE TRANSFER. (A) By ENDORSKMENT.* 1. Slacum v. PoMEROY. Feb. T. 1810. 6 Cranch's U. S. Rep. 221. S. P. Van Staphorst v. Pearse. 4 Mass. Rep. 258; Len- ox v. Prout. 3 Wheaton's Rep. 520; Bank of North America v. Barriere. l^Yate's Rep. 360 ; Eccles v. Ballard. 2 Nott & M'Cord's S. Ca. Rep. 388. Per Cur. Marshall C. J. A bill of exchange is taken as ^''"■>' ^'' ^ o dorsement much on the credit of the endorser, as of the drawer ; and the is a new endorsement is understood to be not simply the transfer of the*^*^'""^*^'^' paper, but a new and a substantive contract. Abat v. Rion. April T. 1821. 9 Martin's Lou. Rep. 465 ; S. P. Allard v. Gantsheau. 4 Martin's Rep. 662. Held by the Court, Porier, /., that a blank endorsement in- ^^J ^0^6?^ vests the holder with a right of action against all the preceding with the - nartip-? right of ac P^"^"^^- lion agaiist 3. all preced iiig parties ; CooLEY V. Lawrence. March T. 1817. 4 Martin's Lou. Rep. p. 639. Held by the Court, Mathews, J., that when a man puts his And by en dorsing a * The endorsing of a bill or note, is in effect making a new one; Wjlliair.s V. Field, 3 Salk. 68 ; Smallwood v. Vernon, 1 Stra. 479 ; Harvey v. Perrit, 1 Salk 133. The situation of an endorser of a note is in every roepect similar to that of the drawer of a bill ; Williams v. Field, 3 Salk. 68; Harvey v. Perrit, 1 Salk, 133. The endorsement of a note which has not the words " or to his order," is to make the endorser chargeable to the endorsee ; Hill v. Lewis, 1 Salk 183. But where a bill or note has been improperly endorsed after due, a party in interest may maintain trover for it ; Goggerly v. Cuthbat, 2 N. R. J70. 262 BILLS AND 1^0'TES.— Transfer of. noienotne name on the back of a promissory note not nee;oliab]e, the pre- gotiatedthe .. ,, ^ , ^ r-i 11 endorser be Sumption IS, that he meant to become surety lor the maker, and *^°'^r* d ^^^ liability is not affected by the holders neglecting to sue the notice is not pvincipal debtor. necessary. . Seymour v. Van Slyci-:. Jan. T. 1832. 8 Vv^end. N. Y. Rep- p. 421. S. P. DovrNiNa v. Backenstors. 3 Caine's Rep. 137. menrcJr^ Pcr Cur. Sutherland, J. It is not essential to the validity of note not ne a bill of exchange, or promissory note, as an instrument under dh-ectand the statute, or according to the custom of merchants, that it positive un s|^qu1(J ^q negotiable. The endorsement and transfer of such an dertaking *= t i i to pay the instrument is good, so as to make the endorsers liable to the en- not^cond*! dorsee, although it will not give the endorsee a right of action tionaito jj^ \^[^ o^yj^ name against the maker ; Hill v. Le\vis, 1 Salk. 132; maker do'es Chitty on Bills, chap. 4. p. 142. The endorsement in such a "°^' case, is equivalent to the making of a new note ; it is a guaran- ty that the note will be paid — it is a direct and positive under- taking, on the part of the endorser to pay the note to the en- dorsee, and not a conditional one to pay, if the maker does not, upon demand, after due notice. He stands in the relation of prin- cipal, and not surety to his endorsee, and has no'right to insist on a previous demand of the maker and notice of non payment. An absolute guaranty may be written over his endorsement, up- on which a recovery may be had against him. Clawson v. Guston. 2 South. Rep. 821. S. P. Snyder y. Satterly, et Ah. 1 Penn. Rep. 87 ; Tyler v. Binney. 7 Mass. Rep. 479 ; Loveli. v.- Evertson. 11 Johns. N. Y. Rep. 52. An endorse Held by the Court, that a blank endorsement is an authority be^fllVeTu -^^ ^^^ "P ^^^ assignment in the usual form, and it must have the assignment filled up before it can have a legal operation. Vide Jforris v. Badger., 6 Coiven, 449 ; Dugan v. U. States^ 3 Wheat. 173. 183. 6. Johnson v. Martinus. May T. 1827. 4 Halst. N. J. Rep. 144. S. P. Ferris v. Saxton. 1 Southard. 1 ; Herrick v. Carman. 10 Johns. N. Y. Rep. p. 224; Hill v. Ely. 5 Seargt. & Rawle's Penn. Rep. 363 ; Mkhelm v. Bar- KET. Cox's Rep. 86, An endorse -^ i ^t j- • < t i erioRnoie Assumpsit by Martinus, against Johnson, on a promissory BILLS AND }^OTES.— By endGrsem€7it. 253 note, drawn by one Poift, in favour of Lawrence, or bearer, and '^''^y .^^'^'^ . . . that It was transferred by delivery, to Johnson, and by him endorsed in agreed that blank to Martinus. ^ ^^^^^ It was offered to be proved, at the trial, that Johnson v.'as not p'^ ^'^f "'^'^^ ■'■ ' . ' D'.it that his to be considered liable to Martinus, as endorser upon the note, nnme wa?? and that his name was put there, merely to enable the plaintiff ^^^^^'^^^^'^'^'j" to collect the money from the drawer. Evidence overruled, twn of the and verdict for plaintiff. Eiving, C.J. The fair and honajide possession of a note, with blank endorsement, furnishes presumptive evidence of authority, to fill up the blank in a general, unlimited, unrestricted manner. But the evidence is presumptive only, and leaves the endorser the liberty, while it imposes on him the necessity, of provinp; the making of a different, express stipulation. It is competent for a party, in possession of a note, thus endorsed, to fill up the endorsement, v.-ithout other evidence of his right to do so, than the mere possession. But it is competent for his immediate endorser, to prove that in so doing, he has abused his aurhority, and expressed the contract different from the stipulation, and agreement of the parties. Such conduct on the part of the en- dorsee, would be a direct fraud ; and if the very perpetration of the fraud, could close up the avenues of detection, and preclude enquiry, the rules of law, and the courts of justice would mere- ly call, instead of treating, fraud, as that all destoying thing, it is so universally and so justly described. If a person, as is sometimes very imprudently dohe^'give his name to a note, with a blank left for the amount, but v/ith an express agreement, that itisto contain a sum, not exceeding one thousand dollars, and it is filled by the payee with ten thousand dollars, in an action on this note by the payee, or by an endorsee with knov»dedge of the facts, no court vs^ould hesitate to receive evidence, from a witness, present at the signing of the note of the actual agree- ment, between the parties, and of the authority, really given to the holder of the note. Halsey v. Dehart. April T. 1791. 1 Cox's N. J. Rep. p. 93. Dehart had brought an action against Halsey, as assignee of a note with Matthias Dehart, of a note for ^10. The note was payable to ^J^,/^*^^'''^""" Matthias Dehart, .without the words, "order, " or "assigns," signs," is as Halsey had insisted, before the justice, that the note was woif'''^ '^ assignable, but he gave judgment for the plaintiff, the assignee. Per Cur. Such note is assignable. Judgment affirmed. 254 BILLS AND NOTES.— Trcn^/er of. Bank of Utica v. Smith. Aug. T. 1820. IS Johns. N.Y. The holder Rep. 230. may strike ^«ifwp*i^ against the defendant, as endorser of a promissory transfer of note made by Soulder & Smith, and Van Stanvoord, & Co., pay- fheuXl^^' ^^^^ ^" t^e order of Peter Smith, at the Mechanic's Bank, in the city of New- York. When the note was presented for payment, there was the fol- lowing endorsement upon it : "Pay to the order of W. Fish, Esq., cash, &c., P. Smith, cred- it M. Hunt, Esq." When produced in evidence, at the trial, the words, "Pay to the order of W, Fish, Esq.," were obliterated by drawing lines, through them with a pen. Pe.r Cur. Spencer, J. This endorsement was filled up, for the safety of the transmission by the plaintiffs' direction, who were the owners of the note. Fish never having hadany interest in it. He was the mere servant, or agent of the plaintiffs, and it is, I think, clearly settled, that in such a case, the plaintiffs, had a right to strike out the transfer, and make the bill payable to themselves. Thompson v. Robertson, et al. Feb. T. 1809. 4 Johns. N. Y. Rep. 27. A collusive holder can Assumpsit by the plaintiff, as endorsee and holder of a bill of outfi'spe exchange, against the defendants, as payees, and immediate en- cialen dorsers to the plaintiff. The bill was endorsed to the defend- dorsement, • i i ^ r ants, m blank, after which was the following endorsement : "Pay to James Palmer, to be placed to the credit of John M'Call, or order, James Thompson." At the time of the pro- test for non payment, the bill was held by James Palmer, who af- terwards endorsed it, but his name was erased from the bill, on the trial. Spencer, J. The remitter of the bill, made a special endorse- ment, by which he directed the bill to be paid to James Palmer, to be placed to the credit of John M'Call, or order. This en- dorsement, the plaintiff who came by the bill, by endorsement, from James Palmer, and after it was protested for non payment, struck out, and thereby sets up a title, as the immediate en- dorsee of the defendant, whose' endorsement was in blank. Palm- BILLS AND NOTES.— ^i/ endofsemmt 155 er was in possession of the bill, as agent of James Thompson, and had not a right to negotiate it. Vide Morris v. Foreman, 1 Dall. 193, where the Court held, that the plaintiff in an action, on a bill of exchange, might strike out a special, as ^vell as a general endorsement on the bill. 10. Williams v. Granger. June T. 1810. 4 Bay's Conn. Rep. p. 444. . Assumpsit ^g2i\n%i defendant on a special endorsement, guar- v,erson guar antyine: the payment of Oliver Phelps' note, made November, 1, ^"^^ed the ""^ " , , . . payment of 1805, and payable to Y/iiliams, 1st of Oct. 1806. The endorse- ^i note on a ment was in these words : " byS"nt]^ For value received, I hereby guaranty, to Jonathan Williams, ^^."^^j^^^^^*'' Esq., that the withinnamed Oliver L. Phelps, the promiser, is, paklomhe and wuU continue to be, until the day of payment, mentioned in woulcf pay said note, of sufficient responsibility, to pay the same ; and I fur- held if the ther engage with said Williams, the promissee, that if the mon- ed to pay it eys, in said note are not paid by the 5th day of Sept., in the ^vas^bfo^® year 1807, I will on that day advance the same to him, taking lute. and holding the note, as my ov/n, at my sole risk. Hartford, JTov. 14. 1805. GIDEON GRANGER. Phelps having failed to pay the note, either on the day of payment, or on the 5th of Sept., 1807, it was held that Gran- ger's promise to pay the money became absolute, and that Will- iams might recover the same of Granger, v.'ithout a previous suit on the note against Phelps, and whithout notice to Granger of Phelps' failure. 11. Webster v. Lee. June T. 1809. 5 Mass, Rep, 334. S. P. Stewart v. Greenleaf. 3 Day's Conn. Rep. 311. Assumps^it by the endorsee of a promissory note against the ^"^P ^^^^^J* maker. Plea the general issue. The defendant offered in evi- maker by dence a reference to arbitrators, between him and the payee of gg^^j^"^j^^|. the note, and a iudo;ment of the court of common pleas' thereon, ei- may and contended, that it was incumbent upon the plaintiff who ment of ihe claimed the note by a blank endorsement to show that he pur- "°^5 ^°''°^® ■J ^ endorse chased it before the agreement was made. ment. Fer Cur. Parsons, C. J. In an action by the endorsee of a note against the maker, the law admits the defendant to prove payment before the endorsement, because by such payment the 2^^ BILLS AND ^OTES.—Transferof. promise is discharged, and the note is absolutely void. But if the maker of the note would set up this defence, it is necessary for him to prove that the payment v/as made before the endorse- ment, or his defence will fail him, 12. White v. Hov/land. Oct. T. 1812. 9 Mass. Rep. 312. S. P. Hunt v. Adams. 5 Mass. Rep. 358. ilniUn'""'' ^^^^° "P"^" ^^'^ following note :— viz. New Bedford, April 19, ihe words, 1806. For value received I promise to pay William Wliite, or " ^Ved'"' or^er, the sum of two hundred and fifty dollars on demand, with leceiv M-e jointly interest till paid. NATHAN TABEP " and several ly under On the back of the note was the following endorsement : viz. the money " April 19, I8O6. For value received, we jointly and sever- Aviihin men ally undertake to pay the money mentioned to the said William tioned," on ,-1^1 •, •' the back of White. JOHN COGGERSHALL, ^y^tr JOHN H. HOWLAND." urcmis^'"^^- '^'^^'° (^i^'claration contained several counts, one of which as upon a promissory note signed by the defendants alone. Per Cur. The defendant's counsel objects that there is no count in the declaration, to which the note in evidence can ap- ply. But we are all satisfied that the effect of the defendant's signature, is the same as if he had subscribed the note on the face of it as a surety. He is then answerable, as an original promiser, equally with Taber ; and the count in the declaration, which charges him as a several original promiser, is supported by the note ia its actual form. 13. O'Callaghan v. Sawyer. Nov. T. 1S09. 5 Johns. N. Y. Rep. p. 119. S. P. Johnson v. Bloodgood. 2 Caine's Cas. Err. 302 ; Jones v. Caswell. 3 Johns. Cas. 29 ; Lan- sing v. Lansing. 8 Johns. Rep. 454 ; Anderson, et AL. V. Van Allen. 12 Johns. Rep. 345. Ancndors ^issumpsit on a promissory note drawn by O'Callaghan, pay- note cndots sble to Moses Sawyer, and endorsed-by him to the plaintiff. subjeci to Defendant offered to prove a sett-off to the amount of the note all, the equi against Moses Sawyer, for goods sold before the note was en- 11C3 which 11, J ' t> existed a dorsed. The court Overruled tbe evidence, gainst it in tt i- ■ r i • • «• the ha.'id^ * erdict lor plaintiff. c^ cpi_, p^^, (j,^^^ ,j„^^ sett-off ought to have been received. The note had long been due and dishonoured, when it was endorsed; and the point has been .to.o long settled, and too repeatedly re- BILLS AND NOTES.— % endorsement. 257 cognized, to require any decision now, that the endorsee took the note, subject to all the equity, and to every defence, ^vhich existed against it in the hands of the original payee. Fide the following cases, M'Cullockv. Houston, 1 Dall, Rep. 441 ; Humphreys v. Blight's Assignees, 4 Dall, 370 ; Sebring v. Rathbun, 1 Johns. Cas. 331 ; Prior v. Jacpcks, 1 Johns. Cas. 169 ; Jones v. Caswell, 3 Johns. Cas. 29 ; Furman v. Haskin, 2 Caine's Rep. 369 ; Payne v. Eden, 3 Caine's Rep. 213 ; Hen- drick V. Judah, 1 Johns. Rep. 319; Lansing v. Gaine, 2 Johns. Rep. 300; Losee v. Dunkin, 7 Johns. Rep. 70; Gold v. Eddy, 1 Mass. Rep. 1 ; Wilson v Clements, 3 luass. Rep. 1 ; Thurs- ton r. IM'Kown, 6 Mass. Rep. 428; Ayer v. Hutchins, 4 Mass. Rep. 370; Thompson v. Hale, 6 Pickg. 259 ; Braynard v. Fish- er, id,'355. 14. WiBouR V. Turner. Oct. T. 1827. 5 Pickg. Mass. Rep. 526. S. P. Webster v. Lee. .5 Mass. Rep. 334; Hemenway V. Stone. 7 Mass. Rep. 58. Assumpsit by the plaintiff, as bearer of a promissory note, ^J^|^^^^J^^ payable to S. Godfrey, or bearer. to show it has been At the trial the judge instructed the jury, that it was not m- paid, lies cumbent on the plaintiff to prove that he purchased the note VP^^^^^^^^ before the payment of a certain sum to Godfrey, but that it was necessary for Turner to prove that the payment was made before the note was transferred. Verdict for plaintiff, and defendant excepted. Per Cur. If it had appeared that the payment on the note was before the ^transfer. The defendant might have availed himself of it in defence ; that the buiden of proof was on him, to show the time of the transfer ; that if the promisor makes a partial payment, %vithout taking care to have it endorsed, and the note is afterwards transferred to an innocent person, the promisor is in fault and ought to be the sufferer ; unless the note shall appear to have been transferred after it was discred- ited. 15. W^iLsoN v. Holmes. Oct. T. 1809 5 Mass. Rep. 543. Assumpsit on a bill of exchange, drawn by the defendant on A holder of William Lees, payable to Benson, Abbott & Briggs, or their or- change en der, and by them endorsed to the plaintiff. The endorsement ^?'^?^^° Vol. II. 33 258 BILLS AND 'NOTES.— Trmnfer of. these ^vas in this form : *' Pay to Thomas Wilson, Esqr., or order, for words : , . . 7-17 5 "pay to T. our use value received m account. jy,;S;our BENSON, ABBOTT & BRIGGS » use, value T^e defendant jijave in evidence a counter oblio-ation of the receive! in ° o *''- account" payees of the same date of the bill, on which they agreed to cover'of the P^y the defendant the amount of the bill on demand, any time drawer in after advice of the bills bcine: paid. his own . ° name. Verdict for the defendant. Per Cur. Parsons^ C. J. The merits of this question de- pends on the interest, which the plaintifl' had in the bill. Wheth- er he had a right to commence the suit or not in his own name, must depend upon the effect of the endorsement. It is express- ly made to him for the use of the payees. Upon this endorse- ment, had there been no acknowledgement of value received in account, Wilson would have no property in the bill, general or special, and he could not recover upon it in his own name. But admitting by the acknowledgement of " value received in account," it is the usage of merchants, to consider the bill as transferred to the endorsee, as the factor of the endorser, who may sue it, either in his own name, or in the name of theen- dorser, of which we give no opinion ; yet the same facts may be given in evideace against the factor, as against the principal. 16. Berry v. Robinson. May T. 1812. 9 Johns. N. Y. Rep. 122. note be en Per Lur. 1 he plaintift was properly non Suited, for not prov- fo°7f.r after ^"S demand of payment on the maker, and notice of his default itisduc, to the endorser. Though the note. was endorsed, long after it must make ^^'^^ due, yet the endorsee took it subject to this condition. The a demand" books make no distinction, on this point, whether a note be en- on the mak iir r • • t i? er if he ex dorsed before, or after it is due. The endorsement, in every '^'' case, where a drawer rejilly exists, is a conditional contract, to pay'in the event of a demand, or due diligence to make demand on the maker, and his default. It was equivalent in this case, to an order on the drawer to pay the amount. The motion to set aside nonsuit is denied. 17. Stockman v. Riley. May T. 1823. 2 M'Cord's S. Ca. Rep. And there p. 398, ti'nrtion be ^^^ ^'^^"- Ganti, J. The charge of the presiding judge, in draw- tweentheming a distinction between a note endorsed before and after due, as to de '^ . . . , mandand SO far as respects demand and notice, has no foundation in law, notice BILLf AND NOTES.— £y endorsement. 259 for its support. The same reason, why diligence should be ob- served, exists as forcibly, in the case of a note endorsed after due, that does when the time of payment has not arrived. I had almost said in a greater degree, for if the circumstance of the time having passed, when payment should have been made, goes to lessen the credit of the drawer, from supposed inability to pay, then the person upon whose credit the holder relies, should be promptly informed of non payment, and ought not to be lulled by the laches of the holder, into a false security, that the note has been paid. 18. EccLESv. Ballard. May T. 1823. 2 M'Cord's S. C. Rep. 388. S. P. Brush v. The administrators of Rees. 3 Johns. N. Y. Rep. 435. Per Cur. The point to be decided in this case,'is, whether the gj. oj-a nou endorsement of a note, payable to bearer, creates a leo-al liabili- Payable to ■, .... 5' . bearer is ha ty m the endorser, to pay the note, and on this point, I am satis- ble as upon fied, for the note was negotiable in its nature, and f^lthough it^^^^^^^g^jg^^Jj. would pass by delivery, without endorsement, yet iLone choose er. to put his hand to it, it shews that it passed from him, and is a new bill to pay the bearer. 19. Bank of the United States v. Weisiger. Jan. T. 1829. 2 Peters' U. S. Rep. 348. Held by the Court, that an endorsement is no release to the A subse previous endorsers and the last endorsee is entitled to the benefit dorsement of their liability, and may sue a remote endorser. does not re •^ ' '' lease tlie previous 20. endorsers. Rees v. Conococheague Bank. June T. 1827. 5 Rand. Va. Rep. 326. S, P. Wilkinson v. Neklin. 2 Ball's Rep. p. 296. Assumpsit by endorsees of a promissory note, against the ma- A blank en ,,..,,■, , dorsement ker endorsed in blank. invests a Per Cur. Green, J. A blank endorsement, does not per se hoJdgj.^'^® transfer a title, but is an authority to the holder, either to hold it, as the agent of the endorser, or to claim it, as his own by as- signment, at his election, without any further act to be done by the assignor. Th'e blank endorsement is conclusive proof of the assent of the endorser, to transfer the note to the holder if he elects to take it as a transfer. The assent and the election of 260 BILLS AND NOTES.— T;-aw^/e;- of. the holder, to treat the endorsement as a transfer, is proved as well by suing upon it in his own name, as by writing over it, an assignment to himself. 23. CowLEs V. Harts Johnson, et al. June T. 18-21. 3 Conn, Rep. 516. S. P. Rice v. Stearns, et al. 3 Mass. Rep. 225; Parker v. Hanson. 7 Mass. Rep. 470; Welch v. Linds. 7 Cranch's U. S. Rep. 159. ment with -Assumpsit by the endorsee of a bill of exchange, drawn on, out "re and accepted by Steblens, &. Co., and dishonoured affainst course to x j i i n us," the en Harts, et al. The endorsement of the bill to the plaintiff, was not UaWe ^° these words : •' pay Gad Cowles, or order, without recourse to us. Signed COWLES & BIDWELL." Per Cur. Hosmcr, C. J. When a bill is endorsed like the present, '' without recourse," the endorsement contains a con- tract that the endorser shall not be liable in any event ; and the payee receives it, on this explicit understanding, that he is nev- er to call on the endorser for payment. The only effect of such endorsemenl| is, to transfer the bill without warranty ; and it is merely equivalent to a release of the property. To support the endorsee's title, the endorser is a competent witness, :as he has entirely divested himself of all interest in the event The gen- eral principle is too firmly established to require the citation of cases ; and the endorsee of a bill, " at his risk," or with an ex- pression that "the endorsee is not to be holden," or "without recourse," has been adjudged to be without right of recovery, in any event, against the endorser. 22. Davidson v. The Borough or Bridgeport. June T. 1831. 8 Conn. Rep. 472. Endorse A committee of the Borough, executed two drafts on their ^^^"ncH treasurer, in favour of the plaintiff, for his services building a payment to clock for the presbyterian church in the borough. The drafts dent debt, were to the order of the plaintiff, and endorsed by him to one Perry, and he presented them to the treasurer, who refused to accept them. The executor of Perry then brought this suit in the plaintiff's name. The defendants offered to prove that the plaintiff had accepted the drafts, in full of all demands for the clock ; and by reason of the assignment of th^ drafts to Perry, this action could not be maintained. Per Cur. BisseU J. A note or bill not received as payment BILLS AND NOTES.— % endorsement. 261 does not become such, by endorsement merely. Accordingly, it has been uniformly holden, that if the endorser resume the note or bill, the same being unpaid, he may resort to his original cause of action. And it has been conceded, in the argument of this case, that if Davidson had become lawfully repossessed of these drafts, they having been dishonoured in the hands of his en- dorsee, he might have treated them as so much waste paper, and have recovered on the count for goods sold and delivered. The mere endorsement of these drafts, therefore, vras no payment as to Davidson. But the general rule, undoubtedly is, that the payee of an endorsed note or bill, cannot recover on his original demand, so long as such note or bill is outstanding in the hands of a third person. And the reason is, not that the debt has been paid, but that a suit nfay afterwards be brought by the endorsee, and so the party may be compelled to pay the debt a second time. But when the reason of the rule ceases, the rule itself should cease. Where the defendant has actually paid nothing, and the plaintiff has received nothing for services rendered by the one, and the benefits, of which have been enjo3'ed by the other, there is ^J'-ima yccz'e, a meritorious cause ©faction; and the plaintiff ought not to be turned round, because an unproduc- tive note or bill has been given and endorsed, unless that course^ should be demanded, by a regard to the safety of the defen- dants. 23. Mauran v. Lamb. May T. 1S27. 7 Coweu's K. Y. Rep. 174. S. P. Pay;;e v. Eden. 3 Caine's Rep. 213. Assumpsit by the plaintiff, as bearer of a check against the P'^'^^^^^^^J^ defendant as draw^er. payable to bearer may Per Car. Woodworthj J. It is contended that the plaintiff £-..6 in his , . ^ , , . . , , L • I • i-u- own name, being a mere agent, and havmg no interest, cannot maintain tnis ^^^ t^g action. It appears that the iDlaintiff came fairly by the posses- P'^'"^'^!.'.^ , ,^ ^ ^ ./ ./ 1 want of in sion ; and his name was used for the benefit of Mrs. Rerasen, terestcan claiming to be the person in interest. The rule is, that the bear- Igc'ted to. er of a note or bill, payable to bearer, need not piove a consid- eration, unless he possesses it under suspicious circumstances ; 1 Chit, on Bills, 51. If a question of mala fide posses sio arises, that is the fact to be raised by the defendant, and submitted to the jury; Conroy v. Warren, 3 Johns. Cas. 259. In that case, Mr. Justice Kent, referred to Livingston v. Clinton, decided Ju- ly T. 1799, where the law- was laid down, that if a note be en- dorsed in blank, the court never inquire into the right of the 262 BILLS AND ^OTES.— Transfer of. plaintiff, whether he sues in his own right, or as trustees ; thai any person in the possession of a note may sue ; and he says a decision to the like effect; Cooper v. Kerr, was, in March terra, 1800, affirmed in the court of errors. 24. Mitchell v. Culver. May T. 1827. 7 Cowen's N. Y. Rep. p. 336. A blank Per CuT. Sutherland. J. When an endorser of a note com left for tlie ','...■, , -ii . • ^ ■, ^ ^ date of a Kiits it to the maker, with the date in blank, the note carries on note author t]jg f^ce of it, an implied authority to the maker to fill up the holder of it blank. As between the endorsers and third persons, the maker, with what ^"i^Jcr such circumstarices, must be deeiijed to be the agent of date he the endorser, and as acting; under his authority, and with his pleases. . approbation. Although it is not essential to the legal validity of a note, that it should be dated, yet we all know that it is ne- cessary to its-free and uninterrupfed negotiability. A note with- out date, v;ill not be discounted at otir banks, nor pass in the money market, without previous inquiry. All the parties, there- fore, to a note intended for circulation, must be presumed to consent that the person to whom such a note is entrusted for the purpose of raising the money, may fill up the blank with a date. The evidence does not show that the plaintiff paid less for the note than its face. Judgment for plaintiff. 25. Mechanics' Bank v. Schuyler, et al. May T. 1827. 7 Cowen's N. Y. Rep. 337. S. P. Violett \. Patton. 4 Cranch's U. S. Rep. 151 ; 4 Mass. Rep. 45. So with re Per Cur, Sutherland, J. An endorsement on a blank note, spect to the "vyitho ut sum, or date, or time of payment will bind the endorser, sum, or . '' lime of for any sum, payable at any time, which the person to whom the payment, g^fjorser entrusts it, chooses to insert. 26. MosHER V. Allen. Oct. T. 1820. 16 Mass. Rep. 458. The en Per Cur. If the payee of a promissory note, not negotiable, negotiable P^^^ ^^^ name upon the back thereof, intending to transfer it, he note cannot authorises the prosecution of a suit in his name. But not so, maintaman ' • r ^ action upon when the payee of a negotiable note endorses it, for that act namS'oniie ^'"^'^^^^^^ ^^^ property and the right of action, and is an assign- payee with ment in law by the statute of Anne. He has then lost all prop- BILLS AND NOTES.— % endorsement. 263 ertyin the note, and controul over it, and without his consent, out his «)n^ no action can be maintained upon it in his name. he may up on a note ^^ not negolia 27. ble. MosHER, EXR. V. Allen. Oct. T. 1820. 16. Mass. Rep. 451. Assumpsit on a promissory note,'made by the defendant, pay- dorsee has able to the plaintiff's testator, or order, and endorsed to oneno"ghtto 11 11- • commence Allen who brought this action. an action The nominal plaintiff disavowed the action, and prayed it the name of midit be discontinued. ^^e endors ° er without Per Cur. If the payee of a promissory note, not negotiable, his consent, puts his name on the back thereof, intending to transfer it, he authorises the prosecution of a suit in his name ; for there is no other way of making the assignment effectual. But not so when the payee of a negotiable note endorses it ; for that act trans- fers the property and the right of action, and is an assignment in law, by the statute of Anne. The payee in such case has lost all property in the not e, and all controul over it. 28. M'DONALD, PLAINTIFF IN ERROR, V. MA GR UDER, DEFEND ANT IN ERROR. Jan. T. 1830. 3 Peters' U. S. Rep. 470. S. P. Wood v. Refold. 3 Harris & Johns. Md. Rep. 125 ; Brown v. Mott. 7 Johns. N. Y. Rep. 361. Assumpsit on a promissory note, drawn by Samuel Turner, in When the «/ ' »/ cnclorscr favour of Magruder, or order, at sixty days, payable at the of- take up a fice of discount, and deposit at Washington, for value received, ^^J^^j^^^be and endorsed by Magruder and M'Donald. The note was holder asen drawn and endorsed with the understanding of all the parties, hehad^^v that it should be discounted in the office of discount and depos-ev parted , ■ with It. it, for the use and accommodation of the maker, no value having been received by either of the endorsers. The note was sever- al times renewed and finally protested for non payment, and judgment obtained against the endorsers, the maker being insol- vent. Magruder paid the debt to the bank, and this suit was brought against M'Donald, the second endorser for contribu- tion. Marshall^ C. J. That a prior endorser is in the regular course of business, liable to his endorsee, although that endorsee may have afterwards endorsed the same note, is unquestionable. When he takes up the note, he becomes the holder as entirely as if he had never parted with it, and may sue the endorser for the amount. The first endorser undertakes that the maker shall 264 BILLS AND ^OTES. —Transjer of. pay the note , or that, if due diligence be used, \vill pay it for him. This undertaking makes him responsible to every holder, and to every person whose name' is on the note, subsequent to his own, and who has been compelled to pay it. But it is contended that if nothing is paid, the mere endorse- ment does not bind the endorser to pay his immediate endorsee, any thing. What are the liabilities here ? The second endors- er accedes to the request of the maker, and puts his name upon the instrument. If the maker passes the note for value, his li- ability is the same, as if it had been received by himself. When the first endorser takes up the note, he becomes the holder, as entirely as if he had never parted with it, and may sue the sec- ond endorser for the amount. The first endorser undertakes that the maker shall pay the note, or that^he, if due diligence be used, will pay it for him. This engagement makes him responsible to every person whose name is on the note subsequent to his own. Nor can he set up a want of consideration, received by himself. 29. Hartford Bank v. Barry. March T. 1821. 17 Mass. Rep. 94. A cashier of Assumpsit against defendant as endorser of a promissory note, compan";^ made by one Eaton, payable to defendant, and endorsed to the may ex o^^ plaintiffs. cio endorse a note. Held by the Court, Parker^ C. J., that the cashier of a bank- ing company, may ex ojjiicio, endorse a promissory note, the property of the company and authorize a demand on the maker. We think that the authority to do these acts, may be implied, it being the duty of cashiers to see the preliminary measures ne- cessary to a suit upon notes. (B) By delivery. 1. TiTcoMB V. Thomas. May T. 1828. 5 Greenleaf's Me. Rep. 282. S. P. VosE V. Handy. 2 Green. 322; Jones v. • Vv^iTTEN. 13 Mass. Rep. 364 ; Prescott v. Hall. 17 Johns. N. Y. Rep. p. 284; Dun v. Snell. 15 Mass. Rep. p. 181. ^ange°Jay ^^^ ^"^- ^ ^^'^ ^^ exchange payable to the order of the * The effect of a transfer by delivery is, that when the assignor's name is not on the bill or note, the assignee's remedy is on the original consideration ; Ward v. BILLS AND NOTES.— % delivery. 265 drawer, and not endorsed, may be assigned by delivery only ; J^J^^^^^e and an action may be sustained against the acceptor In the name assjgne'd by of the drawer, as on a bill payable to himself, for the benefit of^^^^'^'^^* the assignee. Cock v. Fellows. Feb. T. 1806. 1 Johns. N. Y. Rep. 143. Certiorari. The note declared on before the justice, was m these words : "Due the bearer hereof, £3. 18s. lOd., which I promise to pay to Abraham Thompson, or order, on demand, as witness my hand this 22d, 11th month. 1803. JORDON COCK. The declaration stated the note as payable to bearer, and the note was not endorsed by Thompson. Per Cur. The word "Secro*," has reference to Thompson as payee. Addis, et al. v. Johkson. Jan. T. 1828. 1 Vt. Rep. 136. Held by the Court, Hutchinson, J., that the endorsee of a note not negotiable, must follow the rules of the law-merchant in making demand of payment, and giving notice of non pay- ment, in a reasonable time. 4. Matthews V. Hall. Feb. T. 1828. 1 Vt. Rep. 316. S. P. BuLLARD V. Bell, 1 Mason's U. S. Rep. 251. ./^^^wmminn which the plaintiff declared that the defendant ^\""^^P^y gave a note to one Richards, payable to him, or bearer, and that er,nmybo E%'ans,2 Ld. Raym. -928; O;venson v. Morse, 7 T. Rep. 65. And if a vendor of goods takes bills or notes in payment, without agreeing to run the risk of their be- ing paid, and they prove of no value they are not a discharge of the debt; Owen- eon V. Morse, 7 T. Rep. 64. If the holder of a bill of exchange send it out in the market without endorsing his name upon it, neither morality, nor the laws of tho country would compel him to refund the money, for which he had sold it, if he did not know at the time, that it was not a good bill; perLd. Kenyan., Fenny v. Harrison 3 T. R. 75-7.; Bank of England v. Newman, 1 Ld. Raym. 422. And where a per- son buys goods of another, who agrees to receive a certain bill in payment, the buyer's name not being on it, and the bill be afterwards dishonoured, the person who took it, cannot recover the price of his goods from the buyer, for the bill is considered*a satisfaction ; per Bailey, J, Emlyc v. Lye, 15 East. 13. And where bankers in discounting a bill, give their customers bills or notes, without endors- ing them, which turn out to be bad, the bankers are not liable. Vol. IL 34 266 BILLS AND ^lOTES.-^Transferof. name^of ^^ the Said Richards assigned and delivered the note to the plain- bonafide lifF. Demurrer and joinder. holder with n ^ rr r • t tt ■ n ■, • outendoise "cr Lur. Hutchmson^ J . Upon every view of this case, '"^°'' the decision of the majority of the Court is, that the declaration is sufficient, and the plaintiff must have judgment. 5. RuHiE, ET AL. V. MooRE, ET AT.. Feb. T. 1817. 5 Mumf. Va. Rep. 388. A bill may j^gi^j by the Court, Roane, J., that a bill of exchange does be negoiiat . '' . ^ ' . ° ed after pro not lose its negotiable quality, by being protested; but after protest, may be assigned, or transferred without assignment. (C) Effect of. 1. to drawin^ a new bilL Bishop v. Dexter. JuneT. 1818. 2 Conn. Rep. p. 419. ^eiu"ofr° ^^^ ^^''^- ^"^"fi^ C. J. It appears that Dexter, the defendant, note or bill endorsed to Converse a negotiable note against Whittlesev, after due isr, . , t ■, , , • .,^ i' equivniep.t ^^ter it was duc, and had been put m suit ; that Converse endors- ed it to Judd, and Judd to Bishop the plaintiff; that after the endorsement by the defendant, no demand was ever made of Whittlesey, the maker of the note, and no notice was ever giv- en to the defendant. The endorsement of a note, or bill, after it is due, is equiva- lent to drawing a new bill, payable at sight ; and demand must be made by the endorsee of the drawer of the bill, or maker of the note, and notice given to the endorser, as in cases of bills, payable at sight. 2. Violett v. Patton. Feb. T. 1809. 5 Cranch's U. S. Rep. 142. S. P. Mitchell v. Culver. 7 Cowen's N. Y. Rep. 336; Mechanics' Bank v. Schuyler, id. 337, in note ; Put- nam V. SuLLVAN. 4 Mass. Rep. 45. Eflectofa Per Cur. A blank endorsement on a blank piece of paper, do^rsci-nent. ^^'^''^ intent to give a person credit, is, in effect, a letter of credit; and if a promissory note be afterwards written on the paper, it binds the endorser. 3. Wilkinson v. Nicklin. 2 Dall's Penn. Rep. p. 395. L^Eement" ^^^^^ ^y ^^^ Court, that it is a rule, perfectly well established^ BILLS AND -iiOTES.— Effect of . 267 BTid is held sacred in commercial transactions, that the J^^a^^k en-P^^s^^^sj JJ. dorseraent ofabillof exchange, passes every interest in it, to the bill to • , .1. every subse every subsequent endorsee, discharged from any equity tnat j^^p,^^ ^n might subsist between the original parties, not appearing on thedorseo, face of the instrument. But where the assignee has notice of an equitable interest, either positively, or constructively, he takes the assignment at his peril. A commission of bankruptcy, is le- gal notice. 4. Nightingale v. Wittington. Oct. T. 1818. 15. Mass. Rep. 272. S. P. Thurston v. M'Kown. 6 Mass. Rep. 428. Jissumpsit upon a promissory note, made by an infant, gg ^ay ro It appeared the note was given to the infant for money due to talnsuho him for wages, which he endorsed to the plaintiff, for a valuable maker, consideration, the endorsee however knowing of the non age ofpn^OTsecU the endorser. The infants father afterwards received the amount an infant, of the note, from the maker, both being aware of fthe transfer of the note by the infant. Held by the Court, Parker^ C. J., that the plaintiff was enti- tled to recover. An infant may endorse a negotiable promisso- ry note, or a bill of exchange, made payable to him, so as to transfer the property to an endorsee. 5. Trumbell, et al. v. Trout. Dec. T. 1828. 2 HalPs N. Y. Rep. 336. S. P. Ulen v. Kittridge. 7 Mass. Rep. p. 233; Merittv, Clauson. 12 Johns. Rep. 102; M'CoMB V. DwiGHT. 4 Johns. Ch. Rep. 659. Assumpsit by the holders of a promissory note against the p^^yee may endorsers. The defendant's endorsement was written upon the ^'"'"^^ '^'^°. '■ drawe- his note by the maker, in pursuance of a parol assent by the defen- agent to en dant, and the note was afterwards negotiated to the plaintiffs, ne^oliate a Held by the Court, Jones, C. J., that the defendant was liable ^'"o^'^"*^"- in the same manner as if the endorsement was made by his own hand; that the defendant made the maker his agent for the ne- gotiating the note, with his name upon it ; it was the same as if made by the defendant. The endorsement under such circum- stances was emphatically an original engagement of the defen- dant as endorser to the plaintiffs for the payment of the contents of the note. 268 BILLS AND }^OTES.— Transfer of. 6. Snellikg v. Boyd. Spring T. 1827. 5 Monroe's Ky. Rep. 173. i?o!dc°mav Ousley, J. One of several joint holders of a bill of exchange transfer all may transfer the whole interest by his endorsement. iheinteresli in a. bill. Vide Gafeiooocl v. Lyle, 5 Monroe^s Rep. 7. ' '7- NoRms V. Badger & Caldwell. Oct. T. 1826. 6 Cowen's N. Y. Rep. 449. Endorsees AssurrhTpsit ao;ainstthe defendants as ioint endorsers of a prom- of an accom . ^ '' ^ modation issory note. Plea general issue. not show -^t the trial the defendants objected, that the note being an ac- paj^mcnt to commodation note, the plaintiff could not recover till he showed entitle tliem ' ^ to recover, actual payment of the money by him. . That showing himself in possession of the note was not enough, without having paid the money to the bank. Objection overruled. Per Cur. Savage., C. J. The question is, whether the plain- tiff was bound to show actual payment of the note, besides what was to be inferred from the fact of its being in his possession. In Mendez v. Carreroon, 1 Ld. Raym. 742, it was decided, that in an action on a bill of exchange, brought by an endorser, who had been sued upon it, against the acceptor, the plaintiff must prove that he had paid the party who suied him. In Welsh v. Lindo, 7 Cranch, 159, it was held that the mere possession of a promissory note, by an endorsee who had endorsed it to another, is not sufficient evidence of his right of action against the en- dorser, v;ithout a re-assignment, or receipt from the last en- dorsee. But the same court who decided this case, after- wards, in Duncan v. The United States, 3 Wheat. 173. 183, held, that if a person who endorses a bill to another, whether for val- ue or for the purpose of collection, comes again to the posses- sion thereof, he is to be regarded, unless the contrary appears in evidence, as the bona fide holder and proprietor of such bill ; and shall be entitled to recover thereon, notwithstanding there may be on it, one or more endorsements in full, subsequent to the endorsement to him, without producing any receipt or endorse- ment back of him, from either of such endorsees, whose names he may strike from the bill, or not, as he thinks proper. The principle of this case is so precisely applicable, that I need cite no other, if it is to be received as authority. The same princi- ple will be found running through a series of decisions in this court ; 3 Johns. Cas. 263; 10 Johns. 53 ; 1 Cid. 73 ; 1 Cowen, BILLS AND NOTES.— Consequences of being lost. 269 387; vide also, 17 Mass. Rep. 618; Chit, on Bills, 190; Phild. ed. 1821. X. RELATIVE TO BILLS AND NOTES, WHICH HAVE BEEN LOST OR DESTROYED. 1. The Assignees of Palmer v. The assignees of Blight. Oct. T. 1807. 2 W^ash. C. C. Rep. 96. .Assumpsit upon a bill of exchange by the endorser against the cienuoac drawer. It appeared the bills were lodged w'ith the commis- count for sioners of bankruptcy, under a comniission issued against the duciion ofa drawer, where they still remain. ^'''' t'^^m ■■ '' - remains It was contended by the defendants that the plaintiiTs must with the ,,,.■,■, ,, 1 , commission either produce the bills, or prove them losc. ersofbank „ _ T . 1 1 -n 1 1 1 1 I 1 ii ruptcv, Ull Per Cur. It is true the bills should be produced, or other- der a'com wise accounted for, by proving them to be lost, or in a situation ™g^'°" '^ not to be again, brought against the defendants; and the evi- gainst the dence in this case, shov\'s them to be before the commissioners in '^^'^'^^^'^• England, for the purpose of obtaining a dividend on the estate of the drawee. Leigh v. Horsum. April T. 1826. 4Greenleaf's Maine Rep. D. 28. Assumpsit against the defendant upon a lost note. Anaction cannot be It appeared the defendant's son. had borrowed money from the sustained plaintiff, and gave his own note for the money ; the plaintiff be- °"^gj,°^^j ^^ ing dissatisfied, the son agreed to give the plaintiff a joint and livered. several note, signed by his father and himself; the note was signed by his father and himself, and on his way to the plaintiff's house, for the purpose of giving him the note, he was accidentally killed. The following day the note was destroyed by his father, the defendant, for the amount of which this action is brought. Per Cur. Mellcn^ C. J. We are of opinion, that the action cannot be maintained upon the joint note. It was not yet sub- stituted for the note of the son. It was not delivered. The son of the deceased cannot be considered the plaintiff 's agent in deliverins: the note. 270 BILLS AND '^OTES.— Consequences of being lost, 3. Murray, & Co v. Garret, & Co. Oct. T. 1802. 3 Call's Va. Rep. 323. chas'nof B. -^^^ Cvr. Lyons, J. The question Is, whether an action of aforeijjii ihdehitatus assumr.sit for money had and received, -will lie by the bill of ex . . change, purchaser, for money paid to the drawer of a bill of exchange, lost before "^^'^^^^^ ^^^^ '^^'^ '^ ^^^^ before it is presented to the drawee, and the presomed, drawer refuses, either to refund, or renew the bill to the pur- fuscsto chaser ? The contract, on the purchase of a bill of exchange, ^'^^,^,?^*^A drawn on a foreign country, is, for money in the foreign coun- ond bill, A. 1 /- 1 •! • may biing try, and not merely for the paper bill, or draft itself; which is SstmSr °"'y eviJe/.r-r. of the contract, with a power to demand and re- foithepur ceive the money. Therefore, if the bill be lost, the drawer can- ey. ' not be entitled to retain the purchase money here, and have the foreign money too; or, wh.ich comes to the same thing, prevent the purchaser from eoeiving it, by refusing to enable him to do so. For the purchaser has a right to his purchase money, with interest, if he cannot get the foreign money, unless in case of the insolvency of the drawee, the drawer has sustained a loss by the negligence of the purchaser, in not presenting the bill, or giving notice of the protest, in due time. If, then, the pui chas- er has a right to receive the foreign money, the drawer is not in- jured by drawing twenty bills of the same tenor and date ; but he ought, in justice to do it, if it be necessary, in order to ena- ble the purchaser to receive the money. Therefore, if he refus- es to do so, the purchaser must have a remedy for the injury. 4. Meeker, et al. v. Jackson. Dec. T. 1802. 3 Yate's Penn. Rep. 443. Plamtiff pg;. Q^y, There may be a recovery against the acceptor, on er on a lost a bill of exchange lost or mislaid. The existence of the bill pime tbe being once established, the plaintiff may prove the loss of it by loss by his his own oath. own oaih. 5. Swift v. Stevens. June T. 1832. 8 Conn. Rep. 431. Positive cvi Assumpsit by the payee against the maker, on a promissory fSsfofa^^'^^e payable to bearer. The declaration averred that the note note is not was lost or destro\eu by lime and accident, or had gone into the yeTSi' hand of the defendant, and could not be produced on oyer. proofas rj^j^g plaintiff proved by the cashier of the Franklin Bank, to demiiify ilie whom the note had been confided for safe keeping, that be had BILLS AND ISiOTES.— Consequences of being lost. 271 made diligent search for it, and conld not find it ; that he had ^^fen^^^nt a never delivered it to any person, and had no doubt it was lost, bona fide '' '■ , ^ T ^ holder must Per Cur. Williams, J. The defendant has attempted to es-ije given, tahlish the proposition, that the plaintiff must prove the note destroyed ; a"d th?.t this evidence dees not tend to prove that fact. It is certain that th"e plaintiff must prove something more than the mere loss of the note ; otherwise the defendant might be subjected to pay the note to day, in the hands of Swift, and at a future time he may be called on to pay the note, in the hands of one claiming to be the hoViafide owner. Nor is it sufficient, that the note was overdue when lost ;' because the defendant ought not lo be pat to the expense of defending against several claims. The plaintifi' is not bound to prove an absolute destruc- tion of the property, but such proof must be given by evidence of its destruction, or otherwise, as shows that the defendant can- not afterwards be compelled to pay the amount again to a bona fide holder. 6. Peabody v. Dei;ton. May T. I8l5. 2 Galles' U. S. Rep. 351. Assumpsit on a lost note, made by the defendant and others, i^g implied in the year J 797, and by the payee endorsed to the plaintiff. from lapse It Avas contended for the defendant, that the note might be still in existence, and be again demanded of them, by a bonafide holder. Per Cur. After so great a lapse of time, it was incumbent an the defendant to show, either that the note existed, or that it had been demanded of them ; and that it must be presumed, that no demand would now be made. 7. Rowley v. Ball. Oct. T. 1824. 3 Cowen's N. Y. Rep. 303. S. P. Meeker v. Jackson. 3 Yate's Penn, Rep. 442; Freeman v. Boynton. 7 Mass. Rep. 4S6 ; Anderson V. RoBSON. 2 Bay's Rep. 495. Per Cur. Woodworth, J. The question is, whether an action Enaction at law can be sustained on a negotiable promissory note, paya-mu bemain ble to bearer, by a person who was the holder, on his proving ^f,e7iokier that the note Was lost. If the note had not been neo;otiable, orO'^-;' lostne if negotiable, had not, in fact, been negotiated, the plaintiff riore paya would be entitled to recover ; Pintard v. Tackington, 10 Johns. ^^_^'''''^*' Rep. 104. The cases which have not permitted a recovery at law upon negotiable paper lost, but not destroyed, were those in 272 BILLS AND '^OT'BS.— Consequences of being lost. which the paper had been endorsed before it was lost ; Pierson V. Hutchinson, 2 Camp. Rep. 211 ; ex parte ^ Greenway, 6 Vcs. 812. In this case, the note being payable to bearer, the holder could make ovA. prima facie ^ a cause of action, and although the note was due at the time^it was lost, the maker v/ould be expos- ed to the hazard of showing the fact by legal evidence. It would, therefore, seem to be a hard doctrine, which should place the maker in this situation, without requiring an indemnity. In such cases, it is better to leave the party to his remedy in equity, w'here a suitable indemnity wall be provided against any subse- quent recovery. This subject peculiarly belongs to 'equity ju- risdiction. PiNTARD V. Taskington. Jan. T. 1813. 10 Johns. N. Y. Rep. p. 104. eron aTosi Error on certiorari from a justice's court. negotiable p^,^, q^j,_ rpj^^ plaintiff declared for money had and received, and noic^ Ji not ■*■ J J negotiated, upon a lost note, which he particularly described, and as having been given for work and labour. If, therefore, the testimony will entitle him to recover, either upon the note, by proving its existence, loss and contents, or upon the original debt, for work and' labour, the judgment ought to be supported. We see no reason why the recovery upon the note as a lost note, was not good.* It does not appear that the note w^as negotiable, or, if * The holder of a lost note or bill for a valublc consideration, may recover upon it; Grant v". Vaiighan, 3 Burr. 1516 ; Lawson v. Weston, 4 Esp. N. P. Rep. 56. It being' a general rule, that whenever one of two innocent persons must suffer by the act of a third person, he who has enabled .such third person to occasion the loss, must sustain it; 4 Petorsdorff *s Abr. 421 ; 2 T. R. 70. And tlierefore, if even a person who has not given a consideration for a lost or stolen bill, transferrable by deliver}', present it to tlie drawee at'jthe time it is due, and he ]iays it before he has notice of the loss or robbery, such drawee will not be liable to pay it over again to the real owner; ibid. Poth. 168. 169. But if the drawee after notice of the loss, pay it, he will be responsible to the loser ; Lowell v. Martin, 4 Taun. 799. Where a bill is only assignable by endorsement, and a person obtains possession of it by a forged endorsement, he will not acquire any interest in it although he did not know of the forgery ; Smith v. Shepbard,4Petersdorff 's Abr. 422. And if it be lost af terit IS endorsed, no action can be supported upon it by the real owner, though a bond of indemnity be offered, unless the destruction of it be i)roved ; Pierson v. Hutchinson, 2 Campb. 212. Where a bill is cut in two, and half lost, the holder cannot sue on the other half; Mayor v. Johnson, 3 Campb. 324. But where the validity of a bill or exchange was admitted, after it washiest, the plaintiff may re- cover ; Hart v. King, 12 Mod. 310. And where a person of the same name as the payee obtains possession of it, without title, and endorses his name thereon, his en- dorsee cannot recover through such endorsenaent against the acceptor ; Mead v. Young. 4 T. R. p. 28. BILLS AND NOTES. — Cojiseqt-^ences of being lost. 273 negot'able, that it had ever been endorsed, and the existence and con'ents of the note were fully proved, and the circums'ances Avcre enoa2;h to authorize a conclusion that it had been lost or des'royed. The cases which have «ot permitted a recovery at kw, upon neirotiable paper vvhich was merely lost, and not de- stroyed, were those In which the paper had been endorsed be- fore it was lost. 9. DucKWALL V, Weaver. 2 Hammond, 13. (Ohio Cond. Rep. p. 234.) .jissurnvsit on a promissory note. A note part At the trial part of the note containing the name of the sub-^^-^^i u^.^y i^e scribino; witness was offfred in eviJence, p.ccomi^anied with ^'*^'^^'^'''^'^' "P ^ . / , . oa as euUro proof, that th.> note had l en torn, and part of it lost by acci- dent. Per Cur. When t!'« -^^^'X cannot be produced, the plaintiff may excuse hiinse'f fioni making a profert, averring il at the daeiX has been lost by time and accident. In the case before us, it appears that a part oi the note had been deslioyed, and the ob- jection was, ihatthat f ct had not been set o\it in the declara- tion. There is no pnalogv between this case, and those in wdiich that averment is required. In an action on a promissory note, the defendant not being entitled ta oyer, a profert is not necessary, nor is it necessary to set out the note in the declara- tion — it may be given in evidence on the general counts — its mutilated state, therefore, need not be described in the pleadings. It is time enough to disclose ihat fact, and to account for it, when the paper is oiTered in evidence- 10. Bank of Virginia v. Ward. March T. 1818. 6 M'amf. Va. Rep. 169. Per Cur. Ramie., ./. The C')urt is of opinion, that the &o??aBiuthe Jide owner of a bank note, having transmitted one half thereof by i|,^l(^^i-,^)^ij-y the mail, which has bepn stolen therefrom, or is lost, can not 'lie person ' . . sought to be demand payment from the bank of any part of its amount, in charged. consequence of holding the rttained half , merely \ but that he is entitled to demand the whole amount of the said note, on satis- fying the lank., of the verity of the above facts, or estahlishivg them, by the judgment of a court of equity, and giving, in either case, sn'id'actory indemnity, to secure the bank against f;'.tnre loss, from the appearance and setting up of the other half of such note. Vol. 1L 85 274 BILLS AND I^OTES.— Of the payment. XL OF THE PAYMENT OF A BILL, OR NOTE. (A) Time of payment. 1. Cammer ads. Karrison. Nov. T. 1822. 2 M'Cord's S. Ca. Rep. 246. payaWe"on '^^^^ '^^^ ^^ action of assumpsit on a note, in the following demand, or %rords : time is ex "'-'1^- (demand, I promise to pay B. & D., the sura of eighty-five pressed, dollars, fifty cents, for value received, this 9th day of March, grTawe 1822. JAMES CAMMER. Defendant moved for a non suit, upon the following grounds : 1st. Because no demand was made before the action was brought. 2d. Because no demand was made before the expiration of the three days of grace. 3d. Because the action was brought on the same day the note was given. Richardson^ J. The cause of this appeal was probably the misapprehension, that a note payable on demand, was still enti- tled to three days of grace; but Chitty, 279, says, "when a check or bill, &c., is expressed to be payable on demand, or when no time of payment is expressed, it is payable instantly on presentment, without any allowance of days of grace." The debt was therefore due, and the plaintiff could, of course, commence his action immediately. 2. BuMFORD V. Patterson, et al. March T. 1820. 7 Martin's Lou. Rep. 460. Nor where Assumpsit on a promissorv note made payable "on the first day bleoESay^f May next fixed." fixed. Held by the Court, Derbigney^ J., after admitting that by the law merchant, as it prevails in the United States, no case could be found where the point had been decided, referred to Febrero de Contrs. Ch. 15, sec. 15, that no days of grace were allowed. 3. HoGAN V. CuYLEH. Feb. T. 1828. 8 Cowen's N. Y. Rep. p. 203. Uponanote Assumpsit on a promissory note by the payee against the ma- entifled to Uar • days of ^^^' BILLS AND NOTES.— rme of payment. 275 The capias ad respondendum was deli%'ered to the sheriff, on SJ-ace^ Jhe the 6th of Nov. 1824 , defendant contends the note %vas not due, haveUie until the 8th of the month, that being the last of the three days^j^^^^'' ""^ of grace. The Court decided that da3^s of grace on z promisso- ry note, were only allowable for the benefit of the endorsee, and that the maker was not entitled to them. Plaintiff excepted. Per Cur. Sutherland, J. The Court were clearly wrong in deciding the maker was not entitled to three days of grace. 4. Norton v. Lewis. June T. I8l8. 2 Conn. Rep. 478. ^ilssumpsii 2ig?imst the defendant as endorser of a promissory There is no note, made the first of January, 1814, payable one year after between date. .""[^^ ^f bills as to A special verdict found, "that when said note became due^daysof and payable, according to the tenor and effect thereof, to v/it, ^^^^^^^ on the first day of January, 1815, at Ivleriden aforesaid, the payment of said note, so endorsed as aforesaid, was demanded :" that payment was refused ; and that of such demand and refu- sal, "the defendant afterwards, to wit, on the first day of Janua- ry, 1815, aforesaid, at Meriden aforesaid, had notice." The note in question was made and endorsed, in the manner stated in the declaration. The first day of Jan. 1815, was Sun- day. On monday, the plaintiff presented the note to the maker for payment ; who neglected to make payment ; and the defend- ant, on the same day, gave notice to the endorsers. On. Tuesday the note w-as again presented for payment ; and notice of non payment v\'as again given to the endorsers. At this time, the defendant, in consideration that the plaintiff w^ould wait till the expiration of the time of suing, for the then next J\Iarch term of the New-Haven County Court, agreed to pay the note to the plaintiff; and the plaintiff did wait accordingly. Per Cur. Hosmer, J. I have doubt that days of grace must be allowed on a negotiable, promissory note. It is unquestion- able, that they are allowed on bills of exchange, both foreign and inland. By our late statute, all promissory notes, to the amount of thirty -five dollars, or more, for the payment of mo- ney only, and made payable to order, or bearer, are made as- signable, and negotiable, according to the custom of merchants, and the laws relating to inland bills of exchange. The English statute of the 3d and 4th Ann. c. 9. on the same subject, though it is not identically the same expression, yet they are equivalent in force. Under this law, promissory notes 276 BILLS AND NOTES.— Tme o/ payment. are hcM entitled to (lays of grace ; Brown v. Harraden, 4 Term Rep. 148. A promissory note, negotiated l)y endorsement, is an inland bill of exchange ; and no reason can be assigne:! for ma- king any difference between them. Notes endorsed at any of the banks, hive always been considered as entitlcil to days of grace by reason of an expression ia th„'ir charters, precisely like ihe one i.i the act concerning promissory notes. As to the promise made by the defendant, 1 am of opinion, it was a waiver of strict demand, and notice ; it falls within the reason of many cases which have been determined. 5. Wilson t. Williman. Jan. T. 1819. 1 Nott. & M'Cord's S. Ca. Rep. 440. Andanac Per Cur. Richardson^ J. The question is, whether the payee tion may be ^ • , , • ^ , • . cnm^ncnceci o* <^ promissory note, Can commence an action at law, against ^'1 ''ifj.il"id the maker, on the third day of grace. It appears to me, that the grace. maker may be sued upon the diird day of grace. 6. Thompson v. Ketchan. Aug. T. 1811. 8 .Johns. N. Y. Rep. 189. S. C. 4 Johns. Rep. 285. The time of Per Car. Kent^ C. J. It is a general principle of law, that pl^-'^'^'j-'Jll^ parol evidence cannot be received to controul the legal import oiitiactof Qf ^ commercial instrument. The time of payment is part of the ly iioie. contract, and it no time be expressed, the law adjudges tlie mon- ey is payable immediately. This is not only a positive rule of the common law, but it is a general principle in the construction of contracts. When the operation of a contract is clearly set- tled by the principles of law, it is to be taken to be the true sense of the contracting parties. FuKMAN V. HAstcin. Feb. T. 1805. 2 Calnc's N. Y. Rep. 369. S. P. Hendricks v. Judah. 1 Johns. Rep. 319; Losee V. DuNKiN. 7 Johns. Rep. 70. A note pnv ^^' ^"^* -^^^"^» ^- ■^- ^^'^^ ^ general rule that a note pay- abhnndc able On demand, must be preseiited for payment, within a rea- m i!id ir.ust i i • ••hi • i i " r> • . bo p.csent sonaoie time, or it will l^e coisi !ere 1 as a note out ot tune, and clf.rpiy tlishoaoured ; C'ritiv, 114, 146. What is a reasonable time, is r;.nsouible a ques ion of law, iftheficts be agreed on, 1 D. & E. 163. In '■"°' the present case, we are to assume it as a fact, that the note was »ot negotiated to the plaintiff, until after the first of Janua- BILLS AND "^OTES.— Time of payment 277 ry, 1795; or near eighteen months from the time, when it was given. This fact is averred in the plea, and of course admitted by the demurrer. This hipse of time must clearly be considered as placing thp note in the situaiion of one due, and dishonoured, and asim;;osing on the endorsee, the same risk. No person of common prude;ice, will take such a no'e, without enquiry, con- cernintrthe occasion of its beino" so lon<2; out-stanling, and it is incumbent on him to satisfy himself, that it is good.* * A l)ill of exchange accepted afier it is d;ic, is payable on demand ; Jackson v. PitjgoU, 1 lid. Ray m. 364. And a l)ill or note, payable on demand, must bo pie- sent;^d within a reasonable time ; Ward v. F-vans, 2 Silk. 442. And what is a rea- sonable lime, is partly a question of law, and partly a question of fart ; 4 Peters- dorff's Abr. 425. The jury are to find the fiicts and upon tberi the judge is to di- rect the jury; ibid. It is now settled that the presentment for payment maybe made any time during the next (lay ; Pocklinjiton v. Silve-^ter. 4 Pelersd'irff's .^br. p. 42B ; Williams v. Smith, 2 B. & A. 496. Itshnuld be forwarded for payment the Jiext d,iy, or (hr; holder will l)e guilty of laches ; 2 Camb. 537; 2 Tauii. 238^ B-iily on Bills, 104. And the allowance of days of graee on bills, applies to proniissory notes; Brown V. tlarraden, 4 T. R. 143. Even though the note be not payable to order or bearer; Smith v. Kendall, 6 T. R.123. Presentment to the drawer of a bill is iiiinocessar}' . We are all clearly of opin- ion, thai in actions on mland bills of exchange, tlie plaintiff must prove a demand of, or due diligence to get the money from the drawer or aet^'ptor, but need not prove a de'nand on the drawer ; Heylon v. Adatnsori, 2 Burr. C7 1 . And until pre- sentment of a note payable after sight, no debt or cause of ailioii accrues to the liolder; Holmes v. Kerri>on,2 Tan:!. 323. And bankruptcy and insolvency, is no excuse for not prcsenlingthc bill for [)aynient ; Russel v. Langsiatfe, 2 Dong. 515 ; Esdaile V. Sowerby, 1 1 East. 1 I". Nor will the death of the aereptor of a till, or the m ikcr of a notvi disijcnse with presenlment, it should be [>rescnle(l to their rep- resentatives ; 4 Peters. It is a good presentment of a bill al the house of the rir:ci'ptor ; Broun v. M'Der:r-o'.t, 5 Esp. £65, A bill drav. n in tl.e cnmilry, " iiayable in Lmidon," mnst be pri'senicd in Londo:i ; Ilodg:' v Fillis. 3 Campb. 4G3 ; Garnet y. Woodcock, I Slark. 475. Lord EUiiilwniiinh Inhl, thai tlnuiMli the peVsons at w'resc iionse they were payable, v.-erc not parlies to them, nor persoir.ily liable, ye! an answer al. that house as to the payment, was snlTlcient ; Sledman v. Gooch, ! F,si>. 3. And a bill payable' al a pirti -ular place, must be presentcul there ; Rov\ c v. Yoiin"-, 2 B. Sc B. 165; 5 M. fc S. 2)1; S.iu iders):i v. Bo:vcs 14 East. 503. And if a promissory note be payable in a parliciil ir phic.e, payment must be demanded ihere ; lloclie v. Campbell, 3 Campb. 247. Or if the place of paymeut be printed at the foot of Ihe ^8 BILLS AND NOTES— Paymen/o/ ' 8. AoNEw r. The Bank of Gettysburgh. 2 Harris & Gill's Md. Rep. p.^478. po'irsion ^^^ ^^^'' '^^® question for our examination, is, the sufficien- of the note, cy of demand and notice. Tlie note was demanded at the bank of Gettysburgh, the place at which it was payable, and on the day it was due. The demand is proved to have been made, by one having the possession of the note for demand, and at the place where payable, Avhich will furnish presumptive evidence of his, authority lo demand and receive. 9. The Bank of Columbia v. M'Gruder. Jan. T, 1824. 6 Harris^& Johns. Md. Rep. 172. S. P. Raborg, Bank OF Columbia, v. 1 Har. & Gill, 231. And a de Per Cur. Earle, J. Where the demand of payment, of the the'lhird^'^ maker of a note, and notice to the endorser, were on the day af- dviy of grace ter the three days of grace, in conformity to the established IS sufiipipnf ■practice and CYistom of the bank, (the holders of the note,) a custom known to, and understood by, the endorser, — Held, in an action against him on the note, that the demand was sufficient. (B) Of the demand and notice.* Hoffman, et al. v. Smith. Aug. T, 1803. 1 Caine's N. Y. Rep. p. 160. Notice to ^^^ ^^^^' Thompson, J. The notice to the drawer of non the drawer payment, although in general requisite, was not necessary in this note; Trecotcliick v. Edwin, 1 Stark. 463. Fresontincnt of a bill to the drawer; Anderson v. Cleveland, 13 East. 430 ; or a promissory note, when it is payable gen- erally, is never requisite ; Rumball v. Ball, 10 Mod. 38. * If the drawee refuse to honour a bill, t'.ie holder niust give notice in a reasona- ble time, or the drawer and endorser? will be discharged ; Bleasard v. Hurst, 5 Burr. 2670. And it is not sufficient for the holder to wait till the time mentioned in the bill for the payment of it, and then give notice of the non acceptance of it and also non payment ; Rosco v. Hardy, 12 East. 434. A bona fide holder, to whom a bill has been transferred after refusal lo accept, is not affected by the nsglect of any pre- vious holder in giving notice of that fact; 4 Petersdorff 's Abr. p. 455. Notice of dishonour is not necessary to the drawer, if he has no effects in the hands of the drawee ; Bickerdike v. Ballman, I T. R. 405. But notice is necessary, where he has drav.^n them out before the bill is presented; Orr v. Magennis, 7 East. 358. So it is necessary, where the acceptor and drawer agree that the drawer shall take BILLS AND NOTES.— 0/ the demand and notice. 279 case, because the drawer had no efifects in the hands of the rif".^°' f drawee, and, therefore, could receive no injury from the want necessary of it. The reason for notice failing, the necessity of giving itharno ef is superseded. The acceptance by the drawer made no altera- f^cts »n the : r J hands of the tion m the rule. Notice of nonpayment was not necessary, be- drawee, cause of no use to the drawer. up the bill; Hammond, e.t ah v. Duprene, 3 Campb. 146. The whol© period From the drawing of tlie bill to the maturity of it ought to bo taken in account, conse- quently if the drawer has had effects in the hands of the acceptor, any time before the bill becomes due, he is entitled to notice of dishonour; per Lord Ellenhorough, Wilkes V. Jacks, Peak. 202 ; 3 Campbell, 146. And notice of an acceptor's dishon- our of a bill drawn for the payee's accommodation, is not necessary to be given to the drawer, ho having no effects in the acceptor's hands, though the pa3'ee has ; Walwyn, et nl. v. St. Quintin, 1 B. Sz P. 652. And where the payee of a note lent his name merely to give it credit, and enable the maker to raise money, whom ho knew to be insolvent, held that he was not entitled to notice ; Debert v. Atkinson, 2 Hen. Bik.336. But where a bill was drawn for the accommodation of a remote endorser, and the names of the prior parties were lent to him, it was held in an action against one of those parties, that he was entitled to notice; Brown v. Maffey; 15 East. 215 ; Cory v. Scott, 3 B. <& A. 619. But not where the endorser receives ef- fects from the drawer to answer his responsibility ; Corr.cy v. Costa, 1 Esp. 302. Bankruptcy and known insolvency of the drawer of a bill is no excuse, if for neg- lect of notice ; Esdaile v. Sowerby, 11 East. 114. The drav/er is entitled to notice if he has effects in the hands of the drawee anytime while the bill is running; Blackhan v. Doren, 2 Campb. 503. But where the vendor of goods drew on the purchaser of them, and the bill would become due, long before the time of the cred- it espircd on the goods, he is entitled to notice ; Claridge v. Dalton, 4 M & S. 226. And where the drawer had sold and shipped goods to the dr awee, and drew the bill before they arrived, and the drawee not having received the bill of lading, refused to accept the bill or receive the go ods, the drawer was discharged for want of no- tice ; Rucksr v. Pliller, 16 East. p. 43. Where the drawer of a bill said, " my resi- dence is immaterial, and I will inquire whether the bill is paid," he has waived his right to notice ; Philips v. Kneller, 1 Starkie, 116. So where a bankrupt, who had drawn a bill admitted after his bankruptc}', it would not be paid, is not entitled to notice ; Brett v. Levett, 13 East. 213. Nor where the acceptor is one of the draw- ers ; Porthouse v. Parker, et al. 1 Campb. 82. So also, where the dravv'er gave no- tice not to pay the bill if presented ; Hill v. Heap. 1 D. & R. N. P. C. 57. Where the residence of the endorser is unknown to the holder, the latter is ex- cused from giving notice of its dishonour, yet due diligence must have been used to discover it; Batcrman v. Joseph, 12 East. 433; Bowning v. Kinnear, Gow. 81. The holder of a bill or note must give notice of the dishonour within a reasonable time. To such of the parties as reside in the place where the presentment was made, the notics must be given at the expiration of the day following the dishonour, and to those Vv'ho reside elsewhere by the post of that, or the next day. Each par- ty has a day for giving notice, and he will bo entitled to the whole day, though the post, by which he is to send it goes out within the day. If the holder place the in- strument in the hands of the banker, the banker is only bound to give notice of its dishonour by the customer, in like manner as if he were himself the holder, and his customer were th o party next entitled to notice. And the customer has the ' like time to communicate such notice as if he had received it from a holder; 4 Pe- tersdorfTs Abr. 468. What is reasonable notice is a proposition of law and fact ; Tindall v. Brown, 1 T. R. 167 ; Poplej v. Ashley, 6 Mod. 147, Thsra must b« 280 BILLS AND ^OTES.—Paymeni of. Putnam, f.t al. v. Sum-ivax, f.t ai.. March T. ISO?. 4 Mass. Rep. 45. Or where Cnse by the endorsees acainst fl.e endorsers. lie ab.5C(inus ■' ^ befoie the p^r Cur. In nn action bv an endorsee, ap-ainst an enrlorser uoie be . • . cameidue. "i ^ jironiissory note, the plaintiff is not hehl to prove a demand on the promisor, if it appears that he had absconded before the note is payable. 3. Lanusse v. Masskott, rt al. Feb. T. 1814. 3 Martin's Lou. Rep. p. 261. And ifdiie Held by the C^ur'^, that where no demand has in fact been lia'sljc.-n iTi'^de of the maker, if due diligence has been used, the endovfers use.l.iiodc are liable. mind is ne cessaiy. a FoDEN, ET Al.. V. Sharp, et ai.. Feb. 1809. 4 Johns. N. Y. Rep. p. 183. Tiie liolder -^^'' Cin\ The holder of a bill of exchange need not show a of a bill clemand of paymert of the accentor, any more than of the ma- shf)\v a du ker of a uofe. It is the business of the acceptor to show that acceptor' "^ ^^^ was ready at the day and place appointed, hut that no one came to receive the money, and that he was always ready after- wards to pay. positive proof of tlic no'ice and tlic lime, at \. liich it was given cannot be left to inference. It may be given the day tlic bill becomes due ; Burridge v. Manners, 3 Campb. 193. And iinmediiitfly on refusal of p.ijment, without waitinLr to see whether tlie bill will !)e taken up diiririyf t!ie d:iy ; ibid. Ail the partir's iip.ve one day to give notice; Smith v. Mullet. 2 Cainph. 20(1. And where a letter intimating the dishon- our of a bill rfne'ied ihe li«lder on Suiiday. tlic court iield lie was not bound to open it until Monday follo-vin;;; Wright v. Siiaweross, 2 H. & A. 501. nolo. And the same indulgence would lie observed of anollier religion ; Undo v. Unsworth, 2 Campb. 66. .^nd whiirc notice of the dishonour of a bill of exchange was given to an endorser, who resideil in the FJolburn in the afternoon of the day of nop pay- ment, and he sent notice to the endorser who lived in Ixlirtgloji^ who rcccivid it the next day at 8 or 9 oY-iock in the evcniii?, the court In^ld il j^ood notice ; Januso!i v. Swinron,2 Ta'in. 224. .\nd where a bill was presented throu;j;h tiie ^isrency of a banker on S il urcbiv, a-id disbonouied, and being protested, was prosciited again on the same evening and refused oii^'ment, and notice was given to th'; luddoron Mon- day following, and ho resided al Kniijiilsbridge, and gave notice to the endorser, who lived in Trilicnham court ro;ul on Tuesday, the court held it notice mi a ma- sonnble time ; Haynes v. Birl;s, 3 !>. & P. 599. And where! an agent endorsed a bill willioul Ihe ]iiiowledg(! of the jiurty's lesidence. from whnm heretteived il, held thai the principal hid u of famishing additional security to the plaintiffs for a debt due to them from the Eagle Bank, which was not then deemed to be fully secured by antecedent assignments. Pe)' Cur. Bisselj J. It has been contended, that it was the right of the defendant to pay this note on the second day of November, and that the offer then made, destroyed the negotia- bility of the note, as to all persons having knowledge of the" ■ fact. In regard to negotiable notes, the days of grace make a part of the original contract. Such a note payable by the terms of it in 60 days, is in law a note payable in 63 days. Before the expiration of that time, no demand of payment can be made ; and if negotiated on the sixty first, or sixty second day, it is not negotiated over due. The case stands upon the same ground, as if the offer of pay- ment had been made at any lime before the note by its terms, became due ; and the question comes to this ; is it the privilege of the maker of a promissory note, to pay it before it comes to maturity? The contract of the maker with the payee of a ne- gotiable note, is virtually this, "you shall have the privilege to negotiate this note, at any time while it remains due, and I agree to make payment to the legal holder, when the note comes to maturity." 6. PiERSON & PiERSoN V. HooKER. Feb. T. iSOa 3 Johns. N. Y. Rep. p. 68. S. P. Berry v. Robinsok. 9 Johns. Rep. 121 ; Leffingwell v. White. 1 Johns. Cas. 99. A promise Assumpsit on an inland bill of exchange. dors^r'lo If was proved the defendant promised to pay the bill, after it honouml hecame due, and the judge ruled, that a promise to pay by the note is a drawer, was a waiver of the necessity of proving a demand on waiver of ., , .. . ii i the demand the drawee, or notice to the drawer. and notice. p^^. ^^^„_ j^^^^_^ ^ j ^^here an endorser makes a subse- quent promise to pay a previous demand on the drawer, due BILLS AND NOTES.— 0/ Me demand and notice. • 283 notice to the endorser were to be presumed, and need not hi proved. Vide Ager v, M'ManuSj 11 Johns. Ren. 180. 7. Whitney v. Arbott. April T. 1831. 5 New Hamp. Rep. 878. Barker v. Parker. 6 Picko;. Mass. Rep. SO ; Loyd y. Cleaveland. 4 Pickg. 525. Assumpsit by the endorsee, acrainst the endorser. And a prom ^ '' ' o ^ . ise 10 raj' is Per Cur. In this case, after it was ascertained by the parties a v.aivtr, that the makers of the note had failed, and before the note iia'^ njadc t iforc become due, the defendant told the plaintiff, that the latter c" ^-i'ter the ' , , note has be should have no trouble about it, that he, the defendant v/culd come due. pay it, and that he was going to procure the money to pay it. This, we think, was an absolute promise to pay, and amounted to a waiver of the right of the defendant, to call for proof of a regular demand and notice. \¥e think an absolute promise to pay, is a waiver, as well when made before the note becomes due, as v\dien made afterv.^ards. Weed, et al. v. Van Houten. Sept. T. 1827. 4 Halst. N. J. Rep. 189. S. P. FoDENv. s'harp. 4 Johns. N. Y. Rep. 183: \¥oLcoTT V. Vansantford. 17 Johns. Rep. 248; Carley V. Vance. 17 Mass. Rep. 389: Bank of the United States y. Smith. 11 Whe'aton's U. S. Rep. p. 175. Ewing., C. J. The question is, whether in an action by the O/i a note n • ', 11, i- 1 1 1 pr-v-ible at payee 01 a promissory note, payable at a particular place, aacij^ ,-._^,fij.u!a,- not on demand, but at time, it is necessary to aver a presentment P-^'^^e, ana ' ' 1 venntnt of of the note, and demand of payment by the holder, at that places present at the maturity of the note. place Is ma I have no hesitation of expressing my entire concurrence in ijc^-essary. the American decisions, so far as is necessary for the present occasion, that on a promissory note, made payable at a partic- ular place, in an action by the payee, against the drawer, a spe- cial averm^^nt of presentment at that place, is not necessary to the formality, or validity of the declaration, nor is proof of it requisite, on the trial, on a plea of 7ion assumpsit^ to sustain the i:-s e, on the part of the plaintiff. This rule, I am satisfied, is most conformable to sound reason, most conducive to pub-ic convenience, best supported by the general principles and doc- rines of the law, and most assimulated to the decisions which 284 BILLS AND NOTES.— Pa?/mcn^ of. bear analogy, more or less dh-ectly to the subject, as for instanc e on a bond, rent, and an award. An o'j'ir^ation, with a condition for the payment of money at a particular place, does not re- quire a special averment in the declaration, which merely alleges a non payment by the defendant. 9. State Bank v. Hellen. Feb. T. 1826. 16 Martin's Lou. Rep. 226. S. P. Miller\. Hellkn. vol. 3 p. 587. IfanoLcbe Held by the Court, Jv/aif/Aeu?,?, J , that if a note be payable iheiioLissofat the house of A. B., a demand at the dwelling house of A. A. B. nde g qj, ^^ j^j^ office, is sufficient. mand at ilie ' ' liousc o" of fice is sufli cient. Q LovELL V. Wartenburgh. Jan. T. 1818. 1 Nott & M'Cord's S. Ca. Rep. 83. A protest Assum.psithy the endorsee a2;ainst the endorser, of a promis- on the third j. rp, . 1 - i r i xi dayofffiaceSory note. Ihe note was protested lor non payment, on the IS sufficient thi,. J ^\^J of grace, and notice given. Per Cur. Jo/mson, J. A demand under any circumstances, on the third clay of grace, is sufficient to charge the endorser. See 1 Moii §• M'Cord, 440. 10. Price v. Young. Jan. T. 1819. 1 Nott & M'Cord's S. Ca. Rep. 439. Demand Held by the Court, Chccves^ J., that where the maker of a should be ^^^^ ^y the holder ought to use due diligence to receive pay- made of the ' o t-i i ./ reprcscnta ment of it from his representatives, and the proper offices should maker. " ^e searched to fin;l them out ; if that be not effective, then a de- mand at the residence of the maker, during his life, is neces- sary. 11. ' Lenox v. Roberts. Feb. T. 1817. 2 Whealon's U. S. Rep. 373. Held by the Court, that a demand of payment, of a promisso- Wherothc ^^' note, must be made of the maker on the last day of grace, cndwser and where the endorser lives at a different nlace, notice of the different' default of the maker should be put in the post-office, early place. enough to be sent by mail of the succeeding day. BILLS AND 1<10T'E.S.— Of the demand and notice. 285 12. Spencer v. Sterling. June T. 1821. 10 Martin's Lou. Rep. 88. S. P. Chandler V. Sterling. 9 Martin's Rep. 565. Per Cur. Martin. J. Questions of the reasonableness of ^"''^^'^^^^^ er LliG 110 notice, partake both of law and fact. They depend upon facts, tice is in such as the distance the parties live from each other, the course [("'"^(""js^up of the posts, &c ; but when those facts are established, reason- on circum • SL Alices ableness of time becomes a question of law. 13. Henry v. Jones. xMarch T. 1812. 8 Mass. Rep. 453. Per Cur. Where a note is payable in a certain number of}^'^^"jf^® '■ -' day of the days from the date, or from the day of the date, the day of the date is ex date is excluded in the computation. 14. Conn v. Gano. 1 Hammond's Ohio Cond. Rep. 210. (486.) Assumpsit on notes containing these words : " negotiable and A note pay payable at the bank of Cincinnati." particular Per Cur. The plain interpretation of a promise to pay a sum ^'j"^^^^^"^ ^^ of money, at a certain place upon a certain day, is, that the per-mand is tie son making the promise, will on the day be at the place with the chsn-^'e^the money ; if he be not there, or does not have the money there, "i^'^*^'"'^'"'?*^ .^ •' Q^p^or of il. he has not performed his promise. The right of the plaintiff to receive the money, does not depend upon his making a demand. It is absolute by the very terms of the promise. If the defen- dant is ready at the time and place to pay the money, and there is no person to receive it, his promise is not broken ; the duty to pay the money remains, but no action can be sustained to re- cover it, until a subsequent personal demand be made. 15. Caldwell v. Cassidy. Feb. T. 1828. 8 Cbwen's N. Y. Rep. p. 271. S. P. WoLcoTT V. Van Santwood. 17 Johns. Rep. 248. Per Cur. Savage^ C. J. When a promissory note is payable g^^^j^,^^ ^^ at a particular place, on a day certain, the holder of the note is ker may not bound to make a demand at the time and place, by way of li^^^'f^'e" condition precedent to the bringing of an action against the ma- P'^'^'^' ''' 1 v. L -c ii 1 1 , . .. oar of dam ker, but it the maker was ready to pay at the time and place, ages. he may plead il as he would plead a tender, in bar of damages 286 BILLS AND ^OTES— Payment of . and costs, by bringing tlie money into court; otherwise, if the note be payable on demand. 16. Bryant v. Ritterbusii and wife. April T. 1820. 2 New Hamp. Rep. 212. S. P. Prior v. Ja^cocks. 1 Johns. N. Y. Cas. 169 ; Churchill v. Suter. 4 Mass- Rep. 156. The endor r> 7 j ^^ see of a Hichardson, C. J. In an action by a bona fide endorsee, SSe miy^ against the maker of a note, payment to the endorser is no de- prove the fence, unless the endorsee at the time he received the note, had note paid i i 1 r. ,1 ,. . before the knowleage ot the payment, or the note was discredited wdien he mem'^^ took it, by being over due. We are clearly of opinion, that the rule must be limited to the cases where the party to a negotiable instrument is called to testify facts, which render the note void, even in the hands of a bona fide endorsee for a valuable consid- eration without notice. 17. White v. Kibling. May T. 1814. 11 Johns. N Y. Rep. 128. S. P. O'Callaghan v. Sawyer. 5 Johns. Rep. 118. Per Cur. The testimony shows a payment of the note to the endor ^^^ P'^J^^j ^^'^ that the fact of such payment wasicommunicated see has to the plaintiff, the endorsee, before the note was transferred, or knowledge , ,- j 1 • i 1 i of the fact clelivered to him, he took the note subject to such payment. before Uie" Judo^ment for defendant. note is trans ferrcd to • him, he can not recover. Fjieem AN, ET AL. V. BoYNTON. June T. I8II, 7 Mass. Rep. p. 483. Assumpsit on a promissory note, made by Joseph Boynton, of payment ^^^ endorsed by the defendant to the plaintiffs. onffht"tobe '-^^^ maker and endorser of the note, both lived at Wiscassett. presented. On the 10th of June, the note having become due four days be- fore, a copy of the note was transmitted to one Merrill, who im- mediately called on the maker and demanded payment, which was refused, and called at the endorser's house, and informed his wife of the non payment of the note. Per Cur. This demand was not sufficient. Merrill ought to have had the note with him, to have delivered up on payment. The demand ought to have been made with the evidence of the debt, otherwise the debtor may refuse to pay. Where the se- before the note is trans ferrcd to • -j o BILLS AND }^OTES.—jyotice and protest of. 287 curity'is lost, then a tender of sufficient indemnity would make the demand valid. 19. Mead v. Small. May T. 1823. 2 Greenleaf.'s Maine Rep. p. 207. S. P. Guild v. Eager, et al. 17 Mass. Rep. p. 615. Mellen, C. J. It does not appear that any thing except pay- Payment of ment of a bill, or note will destroy its negotiability. Many when made cases show that- payment has that effect. But to this principle ^1^^.^^^"^^^^^" there is a limitation ; payment will not ciestroy such negotihbili- n"t, destroy , I 1 ii 1 1 r- T ^^^ r 1 itS HegOUa ty, when made by the last endorser of a note, or bill of exchange ; biluy. or when made by a prior endorser, if the subsequent endorse- ments are struck out before it is again negotiable. 20. Ruggles v. Patten. March T. 1812. 8 Mass. Rep. 480. Per Cur. This is an action of a^^i^^n^pi-t^ brought by the en-^^gj^^^jP^j^ dorsee, against one of several joint promisors, in a negotiable "ne joint note, for the payment of money. The defendant pleads in bar, cannot a that one of the joint promisors, other than himself, had paid his ^'^'^ '^^^ °^^ share or proportion of the money promised to the promisee, be- fore the note was assigned, and that in consideration thereof, the promisee had acquitted all the promisors from any further demand on the note. As the promise appears from the record to have been joint, if the defendant would avail himself of that fact, he should have shown it as a matter in abatement. A pay- ment of part, by one promisor, cannot operate a discharge of the rest. XII. OF THE NOTICE AND PROTEST. (A) When necessary. I. Gist v. Lybrand. 3 Hammond's Rep. 307. Ohio Cond. Rep. 591. S. P. M'Gruder v. The Bank of Washington. 6 Wheaton, 140, The holder need not Per Cur. When tne maker of a note removes from the state ?ive notice where he resided at the time of making it, the holder is not ^lakeV^^ bound to make a demand of the maker to charofe the endorser, moves out ° of the Btata, 288 BILLS AND ^^OTES.—jroHca and protest of. 2. State Bank v. Hennen. Feb. T. 1S26. 16 Martin's Lou. Rep. p. 226. noTHvciio Per Cw. Mathews^ ./. Holders of bills of exchange, and lice to all negotiable notes, are bound to give due notice to drawers and endorsers of demand and refusal of acceptance, and payment by drawers and makers, b\jt they are not bound to give this no- tice to all the parties on a bill or note, in order to make any one of them liable. It is enough that the person, to whom they mean to resort for payment, has legal notice. If there be oth- ers liable over to him, he ought to give them notice. 3. Bond, et al. v. Farnham. May T. 1809. 5 Mass. Rep. p. 170. Anendors AssumpsUhy the endorsees, against the endorser. er who has ■' * . ' o secured him It appeared the maker had assio;ned all his property to the de- selfby lak ^ , ^^ , , •. ? , • 1 / ing posses fendant, the endorser, as security tor his endorsements. nroperty of The defendant objected, that there was no demand shovv^n on the maker the maker and notice. IS not enii lied to no Parso7is^ C. J. The defendant has no right to insist on a demand upon the maker. It appears that he knew such a de- mand must be fruitless, as he had secured all the property the maker had. 4. Juniata Bank v. Hale. June T. 1827. 16. Sergt. & Rawle's Penn. Rep. 157. S. P. Gibbs v. Cannno. 9 Sergt. & Rawle, 201; Farnum v. Fowle. 12 Mass. Rep. p. 89 ; Reed v. The Commonwealth. 11 Sergt. & Rawle's Penn. Rep. 441 ; Smith v. The Bank of Washing- ton. Qj. ^^],g,.g Assumpsit on a promissory note, made by one Starret, and the mnker endorsed bv the defendant, for the accommodation of the raa- dies before I'l- t • • rf o l t \ i. r the note has ker, and was discounted by the plaintiffs. Starret died betore arrived at the note became due. No notice of demand and non payment ademaiid was given to the endorser. and notice - i- i is indispens Held by the Court, Duncan^ J. ^ that where the maker dies be- fore the note arrives at maturity, that notice of the non pay- ment to the endorser, is indispensible. The rule of demand and notice, is one of universal obligation, and the exceptions ought not to be extended beyond the cases which have been decided. BILLS AND '^OTES. —Whe7inecessary. 289 Addis, et al. v. JohnsojS. Jan. T. 1828. 1 Vt. Rep. 136. S. P. Jones v. Fales. 4 Mass. Rep. 245 ; Sanger v. Stimpson. 8 Mass. Rep.260. ^5'5iw?ywiV against defendant, as endorser of a note made by f^^^^g^jj^ one Ryan, payable to defendant, dated May, 16, 1823, payable "^ade, and J ^' „„ ' „ ''. . notice given m cattle, on the 3d day of October, 1823, or m grain on the of the non 3d day of January, 1824, and endorsed in blank to the plaintiff. ^oTe no?^ Demand and notice of non payment, being not given in time, "^gotiable. the court below decided in favor of the defendant. It was contended by the plaintiff's counsel, that the note not being negotiable, either by common law or statute, the rules applicable to negotiable notes, and bills of exchange, do not apply. Per Cur. Hutchinson^ J. We deem it most expedient, to treat the endorser of such a note, with blank endorsement, as the drawer of a bill of exchange, the endorsee as payee, and the maker as drawee. The endorser then by his endorsement requests the maker to pay the note to the endorsee, who alone can controul it, while he holds it, and who makes it his own, and holds it at his own risk, after neglect to demand payment, and give notice back to his endorser. If the endorsement be made before the note is payable, demand must be made as soon as payment is due, where the parties reside in the same town, as in this case. If the endorsement be made after the note falls due, the de- mand of payment must be made, as if' the note fell due the day of the endorsement ; and in all cases, the notice back must immediately succeed the demand, and failure of payment ; that is, by the first mail, if the endorser resides at a distance, and the same day if he resides in the neighborhood. Notes made KiRKPATRicK & Co. V. HowELL. Nov. T. 1824. 1 Harper's S. Ca. Rep. 426. Assumpsit w^ow promissory notes, against the defendant, as to"be\]"g endorser. counted at a bank, are The plaintiff proved that a letter had been deposited in the subject to the ffcners-l post-office, on the day the note became due, by a notary puplic, rules of de demanding payment of the maker, and at the same time let- |^Q^^"ce^"^ ters were deposited in the post-office, for the defendant, inform- ing him the note was unpaid, but it did not appear the defendant Vol. IL 37 290 BILLS AND ^OTES.~Of the demand and notice. had received the letter. The notary further testified, that such had been the practice of the bank. Per Cur. Hugcr^ J. It is not pretended, that in an action against the endorser of a note, a demand on the drawer is not to be proved; but it is contended, that as these notes were made to be discounted at the bank, a personal demand was unneces- sary, and that a demand was to be implied from the non pay- ment of the notes. It is perhaps true, that such notes, when discontinued, are usually p d il the bank, whe ^ due ; but i is also true, that the banks in this state never neglect to make a demand on the drawers for payment. If therefore a demand in these cases be necessary, it is not because it is authorized by a well established, and therefore well understood usage, but be- cause it was the intention of the parties, at the time of their ex- ecution, that the notes were to be paid at the bank. If a waiv- er of demand is to be implied from such intention, a demand will become unnecessary, in most cases of discounted notes. But how is the fact? Is it understood by the parties to such notes, that a demand is waived? If so, why do the banks always make a demand? They make a demand, I apprehend, not because it is understood a demand is waived, but because it is understood that it is not waived. If it be not so understood, generally, I can perceive no reason for excepting the notes in question, from the general rule. 7. Executors of Prick v. Young. May T. 1821. 1 M'Cord's S. Ca. Rep. 339. Where a p^^. Qn^}-^ Where a demand cannot be made upon the maker, oeraand on . . . ' the drawer the law does not dispense with notice to the endorser. The cir- ^^[\^',^,^^l" cumstances which prevented it, and the notice, are still required. notice to. It was the duty of the holder in this case, admitting that a de- er must be niand could not have been made, to have given the defendant given. notice in as short a period after having ascertained that (he de- mand could not be made, as she could have been required to do, if a demand had been made. Suppose the demand had been made on the 26th of Oct., and no notice to the defendant had been given, until the 10th or ]5th of Nov., could this have been consider."d as a reasonable time, when the parties were so con- tiguous to each other, as to have enabled the plaintiff to have given the notice in five hours, or at most in one day ? I pre- sume not. The law is express, that the notice shall be given as soon as shall be conveniently practicable. Vid?. 1 Jfoit^M' Cord, 43S. BILLS AND 'NOTES.— When necessary. 291 Kibble y. Jefferson. Sept. T. 1828. 5 Halst. N. J. Rep. 139. S. P. Halsey v. Salmon. Penn. Rep. 916 ; Estell v. Vanderveer. 2 South. Rep. 782 ; Disborough v. Van Ness. 3 Halst. Rep. 231. Per Cur. In an action brought by the payee of an order, or J^'J^^]'J^j;°JJ bill of exchange against the drawer, the state of demand must ee, he n ust substantially aver that notice, in due season, was given to the prove no drawer, for the non acceptance, or non payment of the bill, or '^''^^ ^^"°" ' IT J i .^ ' acceptance order. or non pay ment. 9. Disborough v. Van Ness. Nov. T. 1825. 3 Halst. N. J, Rep. p. 231. The plaintiff demanded of the defendant, the amount of a And must note of hand, given by W. and E., to P., or order ; and by P- J^J/j,'lIve endorsed over to the defendant, and by the defendant endorsed legal dili over to the plaintiff. Execution was issued against W. and E.,*' ' which returned unsatisfied. Verdict for the plaintiff. Motion to reverse the judgment, in not showing the exercise of legal diligence. Per Cur. A general averment of due diligence, is not suffi- cient — nor is the issuing of an execution, as in the present case. Judo-ment reversed. 10. Shed v. Bret. 1 Pickg. Mass. Rep. 401. Per Cur. Going to the place of business of thc^maker of a Going for promissory note, during business hours, to demand payment, J^'^^^P'^^^nd" and findinof it shut, no person being left to answer the inquiries, ing pay . . ,.,.° T l- a 1 'meat, at IS due diligence. the Osual Where the endorser lives in another town, notice put in the^-fg^^ess post office is sufficient, althougrh never received. and finding i- ^ O jj ghut, 13 duedili 1 1 . gsnce. Dodge v. Bank of Kentucky. Fall T. 1820. 2 Marsh. Ky. Rep. 616. S. P. Noble v. Bank of Kentucky. 3 Marsh, Rep. 264; Bank of Columbia v. Lawrence. 1 Peters' Rep. 578; Bank of U. S. v. Corcoran. 2 Peters' Rep. 121. v-i . r \v'liat con Per Cur. Mills, J. What constitutes reasonable diligence Jij^^^^^^^^^^i^ in giving notice of protests, is a matter of law to be decided by ^ question of law. 299 BILLS AND l^OTES.—JYotice and protest of . the court; but tlie-speed used in exercising this diligence, &c. whether the nearest roads are travelled, are facts reposing with the jury. 12. GuRLEY V. Gettysburgh Bank. Oct. T. 1821. 7 Sergt. & Rawle's Penn. Rep. 324. S. P. Robertson v. Vogle. 1 DalPs Rep, 252; Bank of North America v. M'NiGHT. 2 Ball's Rep. 158; Mallory v. Kirwan. 2 DalPs Rep. 192; Bank of North America v. Pettit. 4 Ball's Rep. 127 ; Warder v. Carson's exrs. 1 Yate's Rep. 531. Contra. ^^^' ^"^- TilgJiman^ C J. The reasonableness of notice to an endorser, of non payment of a promissory note, is a question of fact, to be submitted to the jury. No general rule can be laid down by the court on the subject. 13. Magruder, plaintiff in err,or, v. The Union Bank of Georgetown, defendants in error. Jan. T. 1830. 3 Peters' U. S. Rep. 87. S. P. Bank of Georgetown V. Magruder. 7 Peters' Rep. 287. Where the ^^^' ^-^J'- MarshalU C. J. The general rule that payment endorser must be demanded from the maker of a note, and notice of its thcrepre non payment forwarded to the endorser within due time, in order thrmaker^ to render him liable, is so firmly settled that no authority need and demand be citecl in support of it. The defendant in error does not con- Ts"stilhic ' trovert this rule, but insists that this case does not come within cessary. j|^ . because demand of payment and notice of non payment are totally useless, since the endorser has become the personal rep- resentative of the maker. He has not, however, cited any case in support of this opinion, nor has he shown that the principle has been ever laid down, in any treatise on promissory notes and bills. The court ought to be well satisfied of the correctness of the principle, before it sanctions so essential a departure from established commercial usage. 14. DwiGHT, et al. v. ScovEL, ET AL. Nov. T. I8I8. 2 Conn. Rep. 654. Where the Jlssumpsit by the endorsees, against the endorsers of a prom- defendant, issorynote. one of the »' makers, 1'he note was made by Lamson & Clark, payable to the defen- was a mem „ ^, 1 i i ^ 1 j. .i i • ber of thedants, Scovel, Lamson & Co., and by them endorsed to the pJain- BILLS AND NOTES.— TFAen mcessary. 293 tiffs, and W. K. Lamson, one of the defendants, Avas a mem- l\^'^'^fll ber of both firms. The defendants objected to a recovery, on theman'dand ground that no demand of payment was made when the note be- stiii"^^g|f^3 came payable ; the plaintiffs were not entitled to recover. The sary. plaintiffs rep'ied that Wm. K. Lamson was an actino- partner in both copartnerships, no demand of payment was necessary. Verdict for the defendants. Motion for a new trial. Per Cur. Sioiff, J. The endorser promises to pay, on condition that the holder uses due diligence. It is a condition precedent, and it has always been held, that insolvency is no excuse. The circumstance that one of the defendants was a member of both the companies, who made and endorsed the note, can make no difference ; for each company is to be considered as distinct per- sons, with different funds and liabilities ; and there is the same reason for presentment and demand, as if the companies were wholly different. 15. Poole v. Tolleson. May T. 182L 1 M'Cord's S. Ca. Rep. 199. S P. Berry v. Robinsoj^. 2 Johns. N. Y.Rep. p. 121 ; EiFERT V. Descoudres & Co. 1 Const. Rep. p. 70 ; M'Kenney V. Crawforb. 8 Sergt. & Rawle's Penn. Rep. 351 ; Stockman v. Riley. 2 M'Cord's Rep. 398. Action by the plaintiff, as endorsee of a promissory note Notice to against the defendant as endorser. er is indis Per Cur. Richardson, J. In order to render the endorser lia-P°j."g'j!°j^^g ble, a demand of payment must be made on the maker of the note is en note, though endorsed after it has become due ; and notice to the it, is ^ue. endorser is indispensibly necessary. Vide Course V. M' Parlance, 2 JVott & jWCord, 283. 16. PiERSON, ET AL. V. HooKER. Feb. T. I8O8. 3 Johns. N. Y. Rep. 68. Assumpsit on an inland bill of exchange, drawn by the defen- And due dant, on Adams, Merrill, & Co., in favor of the plaintiffs, and J^^pJ^s^;;^^ accepted by the drawees. Due notice of noa payment was ad- ed. mitted, the paintiff proved the defendant promised to pay the bill after it became due, and the judge ruled, that a promise to pay by the drawer, was a waiver of the necessity of proving a demand on the drawee, or notice to the drawer. . Per Cur. Kent, C. J. Where the endorser of a note, which 294 BILLS AND ^OTES.—JVoHce and protest of. had not been paid by the maker, made"a subsequent promise to pay a previous demand on the drawer,%nd due notice to the en- dorser maybe presumed, and nee.d not be proved. (B) Form AND MANNER OF NOTICE. 1. Reedy V. Seixas. July T. 1801. 2 Johns. N. Y. Rep. 337. Mills V. Bank or United States. 11 Wheaton's U. Noparticu S. Rep. 431. nmicTi's"^ -Per Cur. There is no particular form of notice to the endors- requisite.* er of a note, prescribed by law ; it is enough, if, under all circum- stances, it is sufficient to put him on inquiry. 2. Bank of United States, v. Norwood. May T. 1803. 1 Har. & Johns. Md. Rep 423. Any tiling Assumpsit by the bank, as endorsees against the endorser. which shews the It was contended for the defendant, that the notice of non does^iVot payment, by the drawer, was insufficient; it should expressly mean to state, that the holder discharges the drawer, and looks to the give credit to the draw endorser for payment, so that the endorser may take the best er IS suffi jTQgjii^s to secure himself, cient. * No paiiicular form of words are necessary In a notice, but it must inform the party that the bill has not been paid by the drawee, and that the holder does not intend to give him credit; Forster v. Jurdson, 16 East. 105. A notice in tiiesa words, " I give 3'ou notice that tlie bill drawn by you, &c. is dishonoured," were held sufficient; Beachauai v.. Cash, D. & R. p. 3. And a verbal message to the drawer's counting liouse, during business hours, was held sufficient; Cioosev. Smith, 1 M. & S. 544. And where no person was in aitendance to receive notice, the court held it unnecessary to leave, or send a written communication ; Goldsmith V. Bland, 4 PetersdorfF's Abr. 476. And sending notice by the post, is always held sufficient, whether it be received, or not ; Kufh v. Weston, 3 Esp. 54 ; Saunderson V. Judge, 2 Hen. BHc. 509. Where the parlies resi'de in London, or its vicinity, no- tice may be sent by the two penny post ; Scott v. LifFord, 9 East. 371 ; Langdale V. Trimmer, 15 East. 291. But the deliver}' of thenolice to a bell-man in the street will not bo sufficient ; Hawkins v. Rutt, Peak. N. P. 186. And the notice may al- ways be sent by a special messenger; Pearson v. Crallan, 2 Smith 404. f^ide Darlyshare v. Parker, 6 East. 8 ; Bancroft v. Hall, Holt N. P. C. 476. Notice of non acceptance, or non payment should come from the holder, and, therefore, where the drawer having notice before the bill was due, that the acceptor had failed, gave another person money to pay tlie bil],and'the holder neglected to give notice of the dishonour, it vvas holden that the drawer was discharged ; Nicholson v. Gouthis, 2 Hen. Blk. 612. Noiice from any parly to the bill, is good; Wilson v. Swaley, 1 Starkie, 34. And where the drawer, or endorser receives due noiice of dishonour from his immediate endorsee, he is liable to a subsequent endorsee, from whom ho bad no direct notice ; Jameson, et dl. v. Swinton,_2 Campb. 373. BILLS AND NOTES. — Form and manner of notice. 295 Per Cur. Chase J. Any lh:rg which shows that the holder does not mean to give 'credit to the drawer, is sufficient notice o the endorser. 3. Lazarus v. Aubin. .^lay T. 1822. 2 AFCord's S. Ca. Rep. Assumpsit upon a proinissory note. ' JhfcnVovs This was an action, brought by the endorsee of a promissory cr,wii!iout 1 fr.1 1 • j./v ■ 1 1 1 a demand note, against the endorser. The plaintiii proved a demand up- ,,pon the on the defendant, but none upon the drawer. a miUitV? The Recorder stated to the jury, that the defendant could only be liable after the default of the drawer, from whom the holder must first demand payment, or use due diligence for that purpose, before he could resort to the endorser. Justices Gantt, Richardson^ and Johnson^ concurred. Ireland, et al. v. Kip. Oct. T. 1813. 10. Johns. N. Y. Rep. p. 490. S. C. Anthon's N. P. 142: S. G. 11 Johns. Rep. p. 231. S. P. Miller v. Hackley. 5 Johns. Rep. p. 375 ; Berry v. Robinson. 9 Johns. Rep. 121 ;: Wil- liams V. Bank of U. S. 2 Peters' U. S. Rep. 96. Assumpsit ao-ainst the defendant, as endorser of a promissory ^Vherethe X J endorser re note. sides in the The notary proved .that he had called several times at the o',. ^own store of the maker, and found it shut up on Saturday the 25th ,^^'/i^ ^^^. ' . ' •' . liolaer, the of May; that on tbe Monday following, he sent a written no- notice of tice, to the post office in the city of New-York, directed to the ""J'^J^o^ defendant, tliat the note had not been paid. The defendant liv- charge him ed at Kipp's Bay, on York Island, and within three and a half personal or miles from the old city Hall in Wall Street; and that it was the 'f^athis •^ , _ • dwelling, practice of the notary, to put notices of the non payment of notes into the post office, when the endorsers resided out on the Island as far as the three mile stone. Per Cur. Putting the notice in the post office in the city of New-York, was not sufficient in this case. There was no post office at Kipp's Bay, where the defendant resided, and the pen- ny post, or letter carrier does not deliver letters at that distance. The holder of the note was bound to give personal notice, or to see that the notice reached the dwelling-house of the defendant, the place of whose residence must have been known to him. 296 BILLS AND '^OTES. —A''ofice and protest of. Bryden v. Bryden. May T. 1814. 11 Johns. N. Y. Rep. 187. S. P. Bank of Utica v. Mott. 13 Johns. Rep. 470 ; Robertson v. Vogle. 1 Ball's Penn. Rep. 252; Stein- METz V. Currie. 1 Ball's Rep. 279; Bank of North America v. M'Knight. 2 Ball's Rep. 158. And what Held by the Court, that where the holder and endorser of a isieasona \j[\\ ^f exchano'e both resided in the same city, proof of notice ble notice, o _ . isamixei to the endorser, within three days after advice of the dishonour ?awVnd ° "^ ^^^^ ^^^^ "^^'^^ "^o^ sufficient, and whether sufficient, or not, is a fact. mixed question of law and fact. Vide Scott V. .Alexander, 1 Wash. Rep. 335 , Reedy v. Seixas., 2 Johns. Cas. 337 ; Mallory v. Kirivan, 2 DaWs Rep. 19 ; Warder, ct al. V. Carson's Exrs. 2 Dall, 233 ; Bank of JYorth America v. Pettit, 4 Dally 129 ; Hussey v. Freeman, 10 Mass. Rep. 84. 6. Hussey v. Freeman. May T. 1813. 10 Mass. Rep. 86. S. P. Bryden. v. Bryden. 11 Johns. IS. Y. Rep. 206. But when Per Cur. Sewall, J. The endorser is entitled to seasonable asce^nahie'd "°^'^^ ' <^nd what is seasonable notice is a question of law, to itisLiques be decided by the court, as soon as the facts necessary to the tion of law. ... . i decision are ascertained. Vide Ferris V. Saxton, 1 Southard'' s Rep. 1. State Bank at Elizabethtown v. Ayres. Feb. T. 1824. 2 Halst. N. J. Rep. 130. Where the Assumpsit on a note made by Jaques & Freeman, payable to pmelted in Jacob Shute, and endorsed to the state Bank at Elizabethtown, ^uUl^n?' by the defendant. Ayres set up a defence, that notice of protest tcary sent T^yas not sent to him in due time. the notice , by the next p^,. Cur. Ford, J. It appears that the bank sent the note and 5dVr°i^ had it protested by a notary in New-York, where the makers re- EHzabeth ^-^j^j ^^^j ^l^g notary transmitted notice of protest, by next town, who ' . , , , , •.. 1 'i. 1, 4.1, the next mail, to the bank of Elizabethtown, who transmitted it, by the thfnolSe next mail after they received it, to the endorser. " Now it is tothecn j^aj.,jfgs^^ that Mr. Ayers would have received the notice one sufficient! day earlier, if the notary had sent it to him instead of the bank, I conceive, however, that the course adopted was by no means an improper one, in as much as a notary is required to give no- tice of protest only to the holder. This is so fully settled in 2 BILLS AND NOTES.— Jlfanner and form of notice. 297 Johns. Cas. 1 ; 5 Mass. Rep. 167, and the cases collected in Chitty, on Bill, 236, a. as to preclude any reasoning on the sub- ject, the disturbance of which might become prejudicial to com- merce. If a notary transmit notice to the endorsers, as early as it could have been received by mail from the holder, it will be certainly good and valid — but he is not obliged to do it ; and the notice having been transmitted by him to the bank, and by the bank to the defendant, respectively, in due time, removes all objections to the verdict on this ground. 8. Chapman V. Lipscombe and Powell. May T. 1806. 1 Johns. N. Y. Eep. 294. • This was an action on an inland bill of exchange, against the f^H^^^ defendants as drawers, who were merchants, residents of Vir- the suppos ginia. The defendants drew the bill at 6 months sight, dated ofl^e'tlraw "New York, April 15th, 1803," on Messrs. Hackley & Fisher ei^ is suffi of New- York, by whom it was accepted. When the bill became due, payment was demanded of the acceptors, which was refus- ed. Verdict for plaintiff. Motion to set aside the verdict, be- cause no notice was given to the drawers of the bill. It appeared in evidence that two letters were put in the post office, giving notice to the drawers, one directed to New- York, and the other to Norfolk, their supposed residence. It was held by the Court, that, as it did not appear the holder knew where the drawers lived, he had used due diligence, and that the notice was sufficient. Motion denied. 9. The Hartford Bank v. Stedman & Gordon. June T. 1821.3 Conn. Rep. 489. S. P. Utica Bank v. SmitK. 18 Johns. Rep. p. 240; Shepard v. Hall. J Conn. Rep. 329. 333; Colt v. Noble. 5 Mass. Rep. 167. Assumpsit against the defendants, as endorsees of a promisso- Anditmay ry note, made by William Belcher, payable at the Middletowri p^j-so^ ac Bank. The note was discounted at the Hartford Bank, and sent qip-inted n . With their to the Middletown Bank for collection. residence It became payable on Saturday the 26th of September, 1819, tion, and was presented for payment, at the Middletown Bank; and payment was refused ; of which notice was thus given. M. T. Russell, Esq., a notary public, residing at Middletown, wrote a letter of notice, in the usual form, sealed it, and addressed it to Vol. XL 38 298 BILLS AND ^OTES.—JYotice and protest of . the defendants; but being ignorant of their place of residence, he left that part of the direction blank. This letter of notice he enclosed in a letter, addressed to Horace Burr, cashier of the Hartford Bank, requesting him to complete the direction, by ad- ding the defendants' place of residence ; which, with its enclos- ure, he put into the post office at Middletown, on the same 26th day of Sept., before the closing of the mail to Hartford. The letter, in the due course of the mail, reached Burr, at Hartford, on Sunday, the 27th, or at farthest, on Monday morning, the 28th of September. He immediately wrote upon the letter of notice, by way of direction, the word, " Hartford," (that being the defendants' place of residence,) and put it in the Hartford post office. The plaintiffs claimed, that this was according to the usual course of proceeding, in such cases, by the Hartford ^ and Middletown banks, which was known to the defendants. They also claimed, that they had proved, that neither Russell, nor any of the officers of the Middletown bank, knew the defen- dants' place of residence, and that their place of residence was not generally know^n in Middletown. ■ The defendants denied that any notice of non payment had been given them ; and claim- ed to have proved, that they had been in habits of business in Middletown, and that their place of residence was well known to men of business there , but that no inquiry was made, nor any measures taken, to ascertain it. The judge, (Peters^ J.,) charged the jury, that, " when notice is to be sent from one post town to another, it must be deposited in the post office in season to go by the next post. This is suffi- cient evidence of its reception. But where notice is not to be transmitted by mail, actual notice must be proved to have been given by the party, or left at his place of residence. The depos- iting it in the post office, in the town wherein he resides, is not sufficient. As a reason for not addressing notice to the defen- dants at Hartford, by mail, from Middletown, the plaintiffs' claim that the residence of the defendants, w^as unknown to the nota- ry, giving the notice, and request the court to instruct you, that he v/as not bound to make the inquiry at Middletown, for the residence of the defendants. But the law is not so. The nota- ry was bound to make the inquiry ; and if the residence of the defendants was generally known to men of business in Middle- town, the ignorance of the notary is no excuse for his neglect." Verdict for the defendants, and a motion for new trial. Per Cur, Hosmer, C. J. The charge to the jury in this case, is not conformable to law. The holder ignorant of the endors- BILLS AND NOTES. — Form and manner of noHcs. 299 ers place of residence, is bound to use due diligence to ascertain it. Burr was acquainted with the residence of the defendants ; and a notice with due diligence sent to him, by the mail, to com- plete the direction, was all that reasonably could have been re- quired. The holder need not send notice of the dishonour of the note, or bill until the next day. The omission of the nota- ry to waste time in making inquiry at Middletown, and his send- ing the' notice immediately, to a person acquainted with the en- dorsers place of residence, that the deficiency in the direction might be supplied, satisfied the rule of law, requiring reasona- ble diligence. 10. The President, &c. of the New. England Bank v. Lewis, ET AL. March T. 1824. 2 Pickg. Mass. Rep. p. 125. S. P. Sanford v. Dillaway. 10 Mass. Rep. 52; Bar- ton V. Barker. 1 Sergt. & Rawle's Penn. Rep. 334. Assummii against second endorsers of a promissorv note. ^° action •^ ° . , . ^^'^ be com On the last day of grace, the notary left a written demand with menced a the maker, and on the same day, but after the suit was com- endorserlje menced he gave notice to the defendants of the dishonour of ^*^''^"°^^'^®- the note, by leaving notice at their place of business. Both parties resided in Boston. Per Cur. Parker^ C. J. The notice was sufficient for the purposes of this action, because it was not given until after the action was commenced. There must be a right of action by a notice of dishonour of the note, or by due diligence used, be- fore the action is brought ; and in the present case, we think due diligence has not been used. Vide Stanton v. Blossom, 14 Mass. Rep. 116; Barton v. Baker , IS. &f R. 334 ; Burk v. Cotton, 2 Conn. Rep. 126. 11. MuNROE v. Easton. October T. 1800. 2 Johnson's N. Y. Cas. 75. Per Cur. Kent, J. I have always understood the law to be The draw- well settled, that the drawer of a bill is only responsible after ais,,ot]iable default on the part of the acceptor; and Ihat the holder must ""'^''^ff^'" C t. I ^ ^ ^^^• ■ due dill nrst demand payment, or use due diligence to demand it of the gence a acceptor, before he can resort to the drawer. f^!"f.i!'® * ' acceptor. 300 BILLS AND }\OTES.—J\^oHce and protest of . (C) Acts whereby a party to a bill or note will bi DISCHARGED. Todis charge an endorser, tlie engage men t must be upuna good consid eralion and binding,and without his assent, and one that will sus pe;id the holder's remedy. 1. Planter's Bank of Prince George's County v. Sellman. June T. 1830. 2 Gill & Johns. Md. Rep. 230; S. P. M'- Lamore v. Powell. 12 Wheat. U. S. Rep. 554; Wood V. Jefferson Co. Bank. 9 Cowen's N. Y. Rep. 194. Assumpsit on the following bill of exchange. $550. Tracy's Landing, Aug. 2, 1823. ITiirty days after date, pay to John Sellman, or order, Five Hundred and Fifty Dollars, for value received, and place the same to my account. T. Tonge. Messrs. B. D. & R. Mulliken, Baltimore. Endors- ed, John Sellman. Pay to James L. Hawkins, Esq. cashier, or order. T. Tyler, cashier. Accepted, B. D. & R. Mulliken. The defendant read in evidence a letter written by the cashier of the Planter's Bank to T. Tonge, informing him that the plain- tiffs had agreed with T. Tonge, to receive the amount of the note by instalments, and prayed the Court that the extension of credit operated to discharge the drawer. Per Cur. Buchanan C. J. We think it is not every mere naked agreement, by the holder with the drawer, for delay, that * If the hill be once paid by tlia drawer, no action can be maintained bj any en- dorpee, against the acceptor; Beck v. Robley, 1 Hen. B!k. 89. The holder of a bill, may take of the acceptor, part payment, and sue the other parties for the bal- ance ; Gould V. Robson, 8 East. 576. Bat where the endorsee of a bill, which he knew was accepted, without consideration, received part from the drawer, and gave him tin)e for the payment of the balance, Lord EUenborough lield, the ac- ceptor was discharged; Laxton v. Peat, 2 Cainpb. 185 ; F'ide Kerrison v. Cook, 4 PetersdorfF's Abr. 494. And the maker of a note is discharged by a release to the payee; Castairs v. Robinson, 5 Taun, 551. An agreement between tho holder, drawer and acceptor, that the acceptor shall pay the bill, discharges the drawer ; Do La Torree v. Barclay, et al. 1 Stark. 7, The holder of a bill, by giving ti'r.e to the acceptor, discharges the other parties; English v. Darley, 2 B & P. 61 ; 3 Esp. 49 ; 1 B. & P. 652 ; 4 T. R.325. Withdrawing a /,/a. against the acceptor docs not discharge the drawer; Pole v. Ford, 2Chitty''s Rep. 125. And the rule, that giving indulgence to the acceptor, without tlie consent of the drawer, dischar- ges sucli drawer, does not apply after judgment, ibid. ?Jor is the endorser dis- charged by the holder of a note, to v/ait for_^paymcnt, without consideration, if the fact of dishonor bo communicated; Morgesson v. Goble, 2 Chitty's Rep. 364. And where the drawer of a bill, after notice, was told by the holder,'that he would take a warrant of attorney from the acceptor, said to the holder, "you may do as you please, T am discharged for want of notice," the Court held that this was an assent to the holder's act, and an implied assent of the drawer ; Clark, el al. v. Delvin, 3 B. & P. 303. So where the iiolder took another bill, not due from the acceptor, without agreeing to give liim time, is not a discharge of the other parties to the bill ; Pring v. Clarkson, 1 B. & C. 14 ; Vide Hill v. Read, ID. & R. 26 ; Walwyn v. St. Quinton, 1 B. k P. 652 j Glaridgo v. Dalton, 4 M. & S. 226. BILLS AND }^OTES.— What acts will discharge a parti/. 30i will discharge the endorser, after he has been fixed in his respon- sibility by non payment, and due notice given ; but clearly, both on principle and authority, it must be a binding engagement without the consent or concurrence of the endorser, and one that will suspend his remedy, and restrain him from bringing suit against the drawer, before the expiration of the given time, to the prejudice of the endorser, or so as to affect his rights, — and to do this, it must have a sufficient consideration to support it, otherwise it is nudum pactum, and does not affect or suspend the rights of any of the parties for a moment; but (like any other agreement that is void for want of consideration,) not be- ing binding on the holder, he is not restrained from suing, but is left free to prosecute his rights, as if no such agreement to ex- tend the time of payment had been made. And the ground upon which an extension of time by the holder to the drawer, is held to discharge the endorser, after notice of non payment, being, that the agreement or delay ties up the hands of the holder, and suspends his present rights; it follows, that an agreement which, for want of consideration, is not obligatory on the holder, and does not suspend his remedy or rights, will not have the effect to discharge the endorser. 2. Bank of the U. States v. Hatch. Jan. T. 1832. 6 Peter*s U. S. Rep. 250. Scire facias agzinst Hatch, upon a judgment against Pierson, Or where it on a suit brought against hi-m and the said Hatch. The action lected the was on a bill of exchano-e drawn by Pearson and endorsed byP^''V®?'" ^ o J J tended to riatCil. suspend The jury found a special verdict, "that a suit was commenced P''^^^f^'"^^ against said Pearson, the drawer, on said bill of exchange, which ate as a dis suit stood for trial at the September term, in the year 1822, of *^ ^^^^' the Circuit Court of the United States, for the district of Ohio. They also find that, previous to the year 1822, one Griffen Yeat- man was confined on the jail limits of Hamilton county, in said slate, on a capias ad respondendum, issued at the instance of, and on a judgment in favour of, said Pearson. That said Yeatman was a material witness for the plaintiffs, in a number of suits then pending in said court; that one George W. Jones, who was the then agent for the plaintiffs, and one William M. Worthington, the then attorney for the plaintiffs, agreed with the said Pearson, that in consideration he, the said Pearson, would permit the said Yeatman to leave the said jail limits, and attend the said court during the term aforesaid, that the suit then pending in said 302 BILLS AND l 5 J r of one joint issory note. Bennett had taken the benefit of the act, giving maker of a relief in cases of insolvency. The question was, whether the [[^^g""^^*^^^ discharge of one would operate to release both. ihciasui vent act, Per Cur. Bennett's discharge is a good bar to this suit does not dis against him. But it forms no defence for Brower. The dis-Qther.^ '* charge of one partner under the insolvent act, is no proof of the insolvency of his copartners. As neither Brower's separate es- tate, nor his interest in the joint fund, passed by the assignment of Bennett, it would be difficult to say why he should be exoner- ated, by the inability of Bennett from paying a debt, for which he was before liable to the extent of his whole fortune ; or why the present plaintiff should be deprived, in this way, of the se- curity which the law gave him, at the time of contracting the debt, against the person and property of Brower. 9. Barton v. Baker. April T. I8l5. 1 Sergt. & Rawle's Penn. Rep. p. 334. Assumpsit by the plaintiff, as endorsee of a note drawn by Insolvency Brown & Co., in favour of Baker the defendant. It appeared er does'iiOt upon the trial, that Brown &. Co. were insolvent when the note ^j!^'^!;^?'?® was given, and when it fell due. of a note TT- 1 Tr T 1 f 1 1 • 1 ^™^ gi'^ing His honour, lates, J., before whom the cause was tried, notice. charged the jury that if the defendant knew of the insolvency of Brown & Co. at the time he endorsed the note, he could not urge the want of due notice. Verdict for plaintiff. — Motion for a new trial. Per Cur. TUghman^ C. J. The insolvency of the maker of a note, though known to the endorser, ought not to discharge the holder from givino: notice. There are various degrees of insolvency, and it rarely happens that a man is totally insolvent. There is a chance of gettingi something by an application to a debtor. 10. DuRYEE V. Dennison. Feb. T. 1810. 5 Johns. N. Y. Rep. p. 218. S. P. Miller v. Hackley. 5 Johns. Rep. 375; PiERsoN V. Hooker. 3 Johns. Rep. 68. ./5ww7?ip5i^ by the first endorsee, against the endorser. ^r^cUschare Vol. II. 39 306 BILLS A'ND :<0T:'£S. -^.^''oHce and protest of. edbywani Pgr Cur. Kent, C. J. The rule is now settled, that if an ofnoiice, . p , , may waive endorser has not had regular notice of non payment by the j['^^J*''^"[,i°Mra\ver ; yet if with knowledge of the fact, he makes a subse- secjuent pro quent promise to pay, it is a waiver of the want of due notice, with a iind assumpsit will he. ofSSs. Vide Philips V. M'Curdy, 1 Har. ^- Johns. Rep. 187. (D) Waiver of notice.* 1. Ladd v. Kenkey. Feb. T. 1821. 2 New Hamp. Rep. p. 340. S. P. Hopkins V. Liswell. 12 Mass. Rep. 52 ; Don- aldson V. Means. 4 Dall. Penn. Rep. 109. Where an ^^ssiimpsif ag?Ansi the defendant, as endorser of a promissory ^"ithaai'll ^^^^' A month after the note became due, the defendant was knowledge informed it had not been paid ; he then said he would see the of the dis , , , ^1 . • 1 honomof a'^^'^^^^r and have the note paid. pm%hetr ^^^' ^^^'- Richardson^ C. J. It seems never to have been pay, it is a doubted, that if the endorser of a note, after being; apprised of waiver of , ' . ... notice. the negligence of the holder in making a demand, or in giving notice, and also of- the legal consequences of such negligence, promises to see the note paid, it is in law the waiver of any ob- jection, he might otherwise have taken on account of the irreg- ularity of the demand or notice, and he must be held liable. Vide Warder v. Tucker j 7 Mass. Rep. 449. * If the drawer of a bill of e.xcbange, aays he would see it paid, if he knew the bill is tUshonou.cd, it is a waiver of want of notice ; Hopes v. Alder, 6 East. 16, So v/here the drawer makes a payment on account ; Harford v. Wilson, 1 Taun. 12. Or where an endorser says, upon bein^ called upon by the endorsee some months after the bill was due, " it was a just debt and he would pay it ; Lundie v. Robertson, 7 East. 231. So where the drawer of a bill said, "he would set the matter to rijjhts ;" Anson v. Baily, Bull. N. P. 276. Or " that the bill must be paid;'' Rogers v. Stevens, 2 T. R. 713. And where the acceptor of a bill of exchange had been indulged by tb.e holder, the liability of the drawer was revived by a promise to pay ; Stevens v. Lynch, 12 East. 33. And such a promise will dispense with the necessity of a protest of a foreign bill ; Gibson v. Coggan, 2 Campb. 188. But a promise to pay, made without a knowledge of the fact of non acceptance, or of the laches of the iiolder will not bo binding; Blessard v. Hirst, 5 Burr. 2672. And a promise to pay a prcmisscry note after it has become due,' is sufficient to authorise ti jury to presume tliat regular notice was given, though tlie promise was not made to ilie plaintiff, or in iiis presence, but to a subsequent endorsee, who held the note; Potter V. Ray worth, 13 East. 417. But a promise to pay by a party under arrest, and ignorant of his riglits, cannot be admitted to render him liable ; per Ld. Kent/on, Rouse V. Redv/ood, 1 Esp. 155. Nor is an offer to compromise the action a waiver of the want of notice ; Cuming v. French, cited 2 Campb. 107. BILLS AND f^OTE^.—Watv&r of noHca. 307 2. The President, &c. of the Taunton Bank t. Richardson, ET AL. Oct. T. 1S27. 5 Pickg. Mass. Rep. 436. Assumpsit on a promissory note, made by Cushino; & Apple-" j^''-''^''*^ 7 J ' J Oil ciitloi sei' un ton of Salem, to Richardson & Lord the defendants, and endors-dertock to ed by them to the plaintiffs. The declaration averred due notice I^^^k^Vand to the defendants, of the non payment of the note. faikd todo It appeared by the testimony at the trial, that the note in con- waiver of troversy was given in renewal of two other notes, in which ^bejlQ^i'^g" same parties were promisors and endorsers ; that the endorsers sent a letter to the plaintiffs, that they would attend to the re- newals, and take care of Gushing and Appleton's notes, and di- rected that notice to the maker should be sent to them, and the notice was sent according to their request. The question before the court was, whether this was a waiver of demand and notice Per Cur. Parker^ C. J. The essential point to be made out by the defendants, as endorsers, is the want of demand and no- tice of the non payment of the note by the makers, or something which in law is equivalent. If a demand on the makers had been necessary, enough has been proved to estop the defend- ants from denying that it was made. The cashier states that a demand in the usual form was made out by him, and transmitted to the defendants, who had agreed before to receive it for the makers. If it did not reach the makers, it was the fault of the defendants, and they could not take advantage of its miscarriage. It is held to be law, that waiver of notice is equivalent to actual notice, and is properly proved on the allegation of actual notice. 3. PiERsoN V. Hooker. Feb. T. 1808. 3 Johns. N. Y. Rep. 68. S. P. Hopkins v. Liswell. 12 Mass. Rep. 52 ; Duryee V. Dennison. 5 Johns. Rep. 248 ; Miller v. Hackley. 5 Johns. Rep. 375; Copp v. M'Dugall. 9 Mass. Rep. p. 1 ; Donaldson v. Means. 4 Dall's Penn. Rep. 109. Per Cur. Kent, C.J. It becomes necessary to examine an A subse objection raised to the testimonj', in support of the plaintiff's jyg to pay" risfht of action, that the plaintiff did not prove a previous de-j^' ''"^.^" ^ ■■ ^ . ^ ^ . dorscr is a mand on the drawers of the bill. If this v/as now to be decid-umvei- of a. ed, it would perhaps be sufficient to refer to the case of Lundie j^^'^^^^''"^^ ^^ Y. Robertson, 7 East. 231, in which the very point arose, and ^'i'-' '^''■J'^^'C" the court of K. B. held, that where the endorser had made a sub- to the en sequent promise to pay, a previous demand on the drawer, and '^'^•""''* due notice to the endorser were to b» presumed, and need not be 308 BILLS AND NOTES.— JVof ice and protest of. proved. This decision was agreeaLle to the ancient opinions ol Lord Raymond, and C. J. Lee, at nisiprius; vide MS. Report of Burnett, in a note to the above case, and Str. 1246. 4. Walker v. Laverty. Jan. T. 1820-. 6 Mumf. Va. Rep. 487. Admitting p^y Cur. If the drawer of a protested bill, being applied to be justar.d in behalf of the holder, for payment, acknowledge the debt to to^paviUs ^"2 j^^st, and promise to pay it ; saying nothing about his having a waiver of received notice ; the holder, in an action against such drawer, is not bound to prove that notice was given hira of the protest. Leffingwell v. PiERPoiKT. April T. 1799. 3 Johns. N. Y. Cas. 99. Assumpsit against the defendant, as endorser of a note made in^time^or by M. & S,, payable to himself, and endorsed to the plaintiff. offering to ^pj^g defendant came to the plaintiff's attorney, and informed him give a new ^ ••' ' note by thclhat S. had absconded ; but that he, the defendant, w^as secured witha^' for his responsibility, and requested time to pay the note ; the knowledge defendant then offered to give a new note with an endorser, for sponsibility the one in question, to which the plaintiff's attorney assented, ofVnv^"d ^^^ pending the negotiation between them for that purpose, the and notice, time of payment of the present note expired, without any attempt to demand payment of the makers, after which the defendant re- fused to pay the note. Per Cur. We are of opinion, that the pending negotiation between the parties superseded the necessity of demand of pay- ment and notice. The defendant was fully apprised of his situ- ation before, and at the time the note fell due. One of the ma- kers was absent from tiie state, and the other had absconded. A formal demand and notice under such circumstances, would an- sv.'er no valuable purpose. The defendant, sensible of this, by his own acts admitted his responsibility, treated the note as his own, and negotiated for a further time of payment. By this conduct he waived the necessity of any demand or notice. 6. Plate v. M'CLmE. March T. 1826. 4 Rand. Va. Rep. 164. „ Per Cur. When a bill of exchange returns protested, and Bo a prom . ise to pay the drawer, on payment being demanded, promises to pay, he eJ'afxermo^s^^ot afterwards resist the payment, on tiie ground that due ***^' notice was not given of the protest. BILLS AND NOTES.— T/me of notke. 309 7. Thornton y. Wynn. Jan. T. 1827. 12 Wheat. U. S. Rep. 183. S. P. Leffingwell & Pjerpont v. White. 3 Johns. N. Y. Cas. 99 ; Donaldson v. Means. 4 Dall. Penn. Rep. 109. Per Cur. Washing-ton^ J. It is now well settled, as a princi-0'"'1"."" , . \ * ,. . , . , , conditional pie of the law merchant, that an unconditional promise, by the promise drawer, or endorser of a bill, to pay it, after full knowledge of j^^^^^J^'^^^J-g^gg all the circumstances, necessary to apprise him of his discharge of his llabil from his responsibility, by the laches of the holder, amounts to*^" an implied waiver of due notice of a demand of the drawer, or acceptor, and dispenses with the necessity of proving it. Agan v. M'Manus. May T. 1814. 11 Johns. N. Y. Rep. ISO. S. P. Grain v. Colwell. 8 Johns. Rep. 299. Per Cur. T/iompson, J. A qualified, or conditional promise f^^co^^i^'fo^n of the endorser to pav, which is rejected by the holder, is not a al promise c ,• " to pay is waiver 01 notice. notav.aiv _ er of notice. Laporte V.Landry. Jan. T. 1827. 17 Martin's Lou. Rep.-359. S. P. Clay v. Oakley. Vol. 4. p. 125. N. S. Held by the Court, Martin, J., that an offer of the defendant*^'" ^" o^^^ •^ ■> 1 1 ^ ^ to endorse a to endorse a note of the maker's for the same sum, is no evi- new note dence of a waiver of notice. It cannot be inferred from such a g°^^^ ^^^ ^^'"^ circumstance. waiver of notice. 10. Mead v. Small. May T. 1823. 2 Green. Me. Rep. 207. Per Car. Mellen, C.J. If the endorser of a note, has pro-^"}'^'''" Till' endorser tected himself from eventual loss, by taking collateral .secwW^i/ take secaii of the maker, it is a waiver of his legal right, to require proof of^J^^g,. ^jg demand on the maker, and notice to himself. a waiver of notice. (E) Time of notice. 1. Jackson v. Richards. Feb. T. 1805. 2 Caine's N. Y. Rep. 344. S. P. Bassard v. Levering. 6 Wheat. U, S. Rep. 102 ; Furnan v. Harman. 2M'Cord's S. Ca. Rep. 436. Per Cur. Kent, C.J. Generally, to fix an endorser, the ttird^'dayof 810 BILLS AND l^OTES.-^Satlsf action of. holder must demand, or use due diligence to get payment of the grace ex pires on Sundajr.the maker, when the note becomes payable ; and, on his default, demand must be made on Saturday. he must use due diligence in giving notice thereof to the endors- er. The demand of payment from the drawer, must be made on If the mnk cr of a note barred by the statute of limita tions prom ise to pay, he is liable. the third day of grace, and within a reasonable time, before the expiration of the day; Bayley, 59,67; Chilty, 148 ; 2 H. Blk. 336-7. If the third day be Sunday, demand must be made on the second day. This was the established usage as early as the time of Lord Holt, in the oase of foreign bills; and it has since been extended equally to inland bills and notes of hand ; for in- land bills and notes are payable at the same time as foreign bills, and there is no material difference between them. Tassel and Lee V. Lewis, 1 Ld. Raym. 743; Chitty, 141 ; Bayley, 66; and Marius, cited by both. If, after the holder of a note obtains judgment on it against the maker, the endors er pays the oote, and XIII. SATISFACTION OF A BILL OR NOTE. 1. PiNKERTON V. Baily. Jan. T. 1832. 8 Wend. N. Y. Rep. 600. S. P. Dean v. Hewitt. 5 Wend. 256. Per Cur. Sutherland^ J. A promise to pay a negotiable note" after it is barred by the statute of limitations, enures to the ben- efit not only of the then holder, but of any subsequent endorsee, and such endorsee may recover upon the strength of it in his own name. The action is founded upon the original promise, and the effect of the acknowledgement is merely to keep alive, or revive the remedy. The acknowledgement is evidence of a promise to pay the note as a negotiable instrument, that is, to pay it to any honafide holder, within six years. The distinction between a debt barred by the statute of limitations, and one dis- charged under an insolvent act, is perfectly established in Eng- land and in this state ; 3 Wend. 135. 2. PaEST v. Vanarsdalen, assignee of Mersereau. Feb. T. 1830. 6 Halst. N. J. Rep. 194. S. P. Smith v. Smith. 2 Mason's U. S. Rep. 268. .Assumpsit on a promissory note, drawn by the plaintiff in fa- vour of, and endorsed by, Mersereau. The note was discounted at the Bank of New Brunswick, for the benefit of Prest. The bank sued Prest and recovered, but the proceeding was ineffec- tual, Prest being insolvent. Mersereau then paid the note, and endorsed it to the defendant in error. BILLS A't^D l^OTES. —What cmsidered payment. 311 Per Cur. After judgment was rendered in favour of the bank ^^cn endors against Prest, upon the note in question, another action against dorsce can him could not be maintained upon it as upon a subsisting instru-^^l^j^j^ j^^. ment. It had passed, as concerned him, in rem judicatum ; Smith '■jo'^ "po" ^ ' ' '' . , the note a V. Smith, 2 Mason, 268. Mersercau having, as endorser, paid gainst the the note to the bank, as he was bound to do, acquired by the "("^^^^^^^J"! payment a right of action against Prest, which he might ha ve form of en maintained under a state of demand for money paid, laid out and gainst en expended, or setting forth the circumstances of the case ; butd'""^®'"* \vhich he could not enforce, or by endorsement authorize anoth- er to enforce, upon the note itself, and in the ordinary form of payee or endorsee against the drawer. Merrimack Bank v. Parker, et al. Oct. T. 1828. 7 Pickg. Mass. Rep. 88. Assumpsit on a promissory note, by which Parker as principal, a note sign and the other defendants as sureties, jointly and severally P^om- ^J>X ^j^»» ised to pay the Merrimack Bank, &c. and C. as surely, if It appeared one Kidder had paid the amount of the note to paid by A. the bank, for Parker the principal, and had taken the ncte to 1^^^^^^;"^' the cashier of the bank, who had endorsed it ; but the bank had ^'il'^'ea not authorized a suit to be commenced upon it. It was contend- ed that as Kidder paid the note for Parker, the principal, he could have no rights against the sureties, any more than Parker himself — a note once paid, cannot be put in circulation, so as to endanger a person who ought to be discharged. Per Cur. Where a note is paid by the principal after it is due, no action can be maintained on'it, by any person against the sureties It becomes functus officio., and incapable of transfer, or being in any way the ground of action. XIV. WHEN CONSIDERED PAYMENT. 1. CoxE v. Hankinson. April T. 1791. 1 Coxe's N. J. Rep. 85. Action upon a sale of cattle for ^£705. Plea, an account set- A note does tied, and j£46 brought into court. The counsel for the defen-"°g^^fn dant, offered to prove that Hankinson had given his note for the S"'sIj aeon ' ^ . ° . tract. money. Per Cur, A note does not ipso facto extinguish the contract. 312 BILLS AND l^OTES.— When considered payment 2. CI.ARK V. Young, et al. Feb. T. 1803. 1 Cranch's U S. Rep. p. 18L Where ths Held by the Court, Marshall C. J., that a suit against the de- note IS not ; ,. . 11/., received in feiidants, as endorsers oi a note, and a suit against the defendants, is'^no bar to ^°'-' goo^s sold, which was the consideration of the note, are|upon a suit for distinct and dijfFerent causes of action, and the first cannot be pleaded -in bar of the second. The note, not being received in payment of the debt, did not extinguish the original contract. 3. Harris v. Johnson. Feb. T 1806. 3 Cranch's U. S. Rep. 311. Cannot be ^^^ ^^^'- •Marshall, C. J. The material point to be decided maintained is, whether an action can be maintained, on an original contract tract, for for goods sold and delivered, by a person who has received a whiciia note as a conditional payment, and has passed away that note. note was re ... . ceived as Upon principle, it would appear that such an action could not paymem^ be maintained. The endorsement of the note passes the prop- and ihat erty in it to another, and is evidence that it was sold for a val- ed to anoih uable consideration. If, after such endorsement, the seller of ®'"* the goods could maintain an action on the original contract, he would receive double payment, 4. Sheehy v. Mandeville & Jamesson. Feb. T. ISIO.6 Cranch's U. S. Rep. 253. Anotegiv Assumpsit for goods sold and delivered. Plea, " that the said ceived as Robert B. Jamesson, in the declaration named, made his promis- ditchar"es ^^^^ "°^^ payable to the said James Sheehy, or order, sixty days an account after date, for 604 dollars and 91 cents, negotiable at the Bank nQte%enot ^^ Alexandria, which said note so as aforesaid, made by the said paid. Jamesson, was given by the said Jamesson to the said James Sheehy, and by him received for, and in discharge of, an account or bill of the said James Sheehy, against the said Jamesson. And the plea goes on to state, that Sheehy had recovered judg- ment on the said note, but does not aver the judgment had been paid. Demurrer. Per Cur. Marshall, C. J. The plea is, that the note was given and received for, and discharge of, an account, or bill for goods, wares and merchandize, sold and delivered by the plain- tiff to Robert B. Jamesson, which are the same goods, &c. that are mentioned in the plaintiff's declaration. That a note, with- out a special contract, would not. of itself, discharge the orig- BILLS AND NOTES. — When considered payment 313 inal cause of action, is no', denied. But it is insisted that if by express agreement, the note is received as payment, it satisfies the original contract, andthe party receiving it, must take his remedy on it. This principle appears to be well settled. The note of one of the parties, or of a third person may, by agree- ment, be received in payment. The doctrine of nudum pactum does not apply to such a case ; for a man may, if such be his will, discharge his debtor without any consideration. But, if it did apply, there may be inducements to take a note from one part- ner, liquidating and evidencing a claim on a firm, which might be a sufficient consideration for discharging the firm. Since then, the plaintiff has not taken issue on the averment, that the note was given and received in discharge of the account, but has de- murred to the plea, that the fact is admitted ; and, being admit- ted, it bars the action for the goods. The special causes of demuirer, which are assigned, do not, in any manner, afiect the case. Whether the promise was made by Mandeville, or not, ceases to be material, if a note has been received in discharge of that promise, and the payment of the note need not be averred, since its non payment cannot revive the extinguished assumpsit. ToBEY V. Barber. Nov. T. 1809. 5 Johns. N. Y. Rep. p. 68. S. P. Sheehy v. Mandeville & Jameson?. 6 Cranch's V. S. Rep. 253; Schemerhorn, et al. v, Loines, et AL. 7 Johns. Rep. 311 ; Johnson v. Weed. 9 Johns Rep. 310 ; Murray v. Gouveneue.. 2 Johns. Cas. 439; 2 Wash. C. C. Rep. 191. Suit on a lease under seal on covenants to pay rent. Plea, But is not the general issue. The defendant gave in evidence, a receipt less express for the payment of the rent, and a promissory note which had '7 received , £IS BUCn* not been paid. The judge charged the jury, that a receipt was not conclusive evidence, but might be explained by parol, and that the note not being paid, did not operate as an extinguishment of rent due un- der seal. Per Cur. The taking of the note was no extinguishment of the debt due for the rent. It is a rule well settled and repeat- edly recognized in this court, that taking a note either of the debtor, or of a third person for a pre-existing debt, is no payment, unless it be expressly agreed to take the note as payment, and to run the risk of its being paid ; or unless the creditor parts Vol. II, 40 314 BILLS AND ^OTES.— When cmsidered payment wilh^tlie notej^or is guilty of laches in not presenting it for pay- ment in due time. He is not obliged to sue upon it. H& may return it when dishonoured, and resort to his original-demand. It only postpones the time of payment of the old debt, until a default be made in the payment of the note. ' „ Vide Herrmg v. Sanger, 3 Johns. Cas: 71 ; Putnam v. Leiois, 8 Johns.' Rep. 389 ; Wetherhy v. Maipi, 11 Johns. Rep. 513 ; Arnold V. Camp. \2 Johns. 409 ; Bardli, Torre ^ Co, v. Brown, 1 JlPCord, 449. 6. Johnson v. Weed,'"et al. Oct. T. 1812. 9 Johns. N. Y. Rep. p. 310. S. P. ScHEMERHORN V. LoiNEs. 7 Johns. Rep. p. 313. Assumpsit for goods sold and delivered, expressly The defendants proved that the plaintitT agreed to take the received as ^^^q ^f ^^^ Townsend in payment. payment or ^ •' not isa fact ^he iudge charged the iury, that unless the plaintiff agreed for the jury Jo o . ,, .■, ■ i c -^ i • to decide, to receive the note as paym.ent, and to run the riSK ol its being paid, the mere taking the note would not amount to payment, if before the note became payable, it turned out to be of no value, and the plaintiff might resort to his original demand. Verdict for plaintiflf. — Motion to set it aside. Per Car. Whether there was an agreement to take Town- send's note in full satisfaction of the goods sold, was submitted to the jury, and they have decided in favour of the plaintiff. The books all agree that there must be a clear and special agree- ment, that the vendor shall take the paper absolutely as pay- ment, or it will be no payment, if it afterwards turns out to be of no value. Vide Woodcock v. Bennett, 1 Cowen, 711, where it was held, if one accepts drafts as security for the price, on a contract to sell lands, and neglects to present it in a reasonable time, it op- erates as payment; and Watts v.^Willing, 2 Dal!. 100. 7. If taken by Brown v. Jackson. April T. 1807. 2 Wash. C. C. Rep. p. 24. inder^S°' S. P. GalLAGHEr's EXRS. V. RoBER^S, ET AL. ibid. eumstances p. 191. that import • i i an intention Washington-, J. If a bill be taken in discharge of a pre-exist- ken^athis'^ ing debt, or in such a manner as imports an intention in the en- own risk, it Jorsee, to take the risk of the bill upon himself, it is a dis- diseharges , the debt, charge. BILLS AND ^OTES.— When considered payment, 315 8. Varner v. Nobleborough. Oct. T. 1822. 2 Greenleaf s Me. Rep. p 121. Held by the Court, that the lesfal presumption of making a ^V^Pf®^"™ •^ , . . .° . ^ . . ° ed to be ve promissory note, and delivering it to a creditor, is, that it wasceived as intended to be an extinguishment of the original cause of action. P^^^"*®"'" But this presumption may be rebutted by presenting circumstan- ces inconsistent with the presumption. Glenn v. Smith, admr. or Haslett. Dec. T. 1830. 2 Gill & Johns. Md. Rep. 493. S. C. 7 Harris & Johns. Rep. p. 17. Trover. Plea not guilty. Per Cur. Buchanan^ C. J. The expression, " in payment of "^^'e accept iv r ' i. J ance by a tHe above account," at the end of John Heslip's receipt, for creditorof a Ann Haslett's notes, are the only words used, that can be sup- "5®,°^^ ^ J ^ i inird persou posed to have any tendency to show that he had agreed to re-f"ra p'e-ex ceive them in full and absolute discharge of his prior debt, andis^""pay ' to take upon himself the risk of their being paid, or not; which "2'"'^""'®" . ,, ^ , , ^ ^ . , . th.3 creditor is the agreement necessary to be proved, to give to his accep- parts with tance of them, the effect to extinguish the pre-existing-debt, (the "' ^(-|^^^"'] notes having never passed from his hands, until taken up by the i» nr^' v-"- appellant) and for that purpose his receipt is relied upon. Butforpaymeut it would be going very far, to say, that the mere use of the ^" ^""^ '""^' words, "in payment of the above account," furnishes proof of such an agreement. It could be but an inference, and that stronger than the words will bear, or the character of such trans- actions justify. If there had been any such agreement, the pre- sumption is, (if presumption can be indulged in) that it would have been stated in the receipt. The very negotiation upon the subject would have indicated the expediency of its being so stated. And in the absence of any such statement, are we at liberty to infer it ? And infer it from, what ? Not from that, which (in the ordinary use of the term) naturally points to such an agreement, and which,- if unexplained, would admit of no other fair inference ; but from that, which looking to the char- acter of such transactions, may well be understood to have been intended, as an acknowledgement only ; that the notes were giy-= en for, and on account of, the precedent claim against the estate of William Haslett ; to show what v/as the consideration of the notes, and to furnish A.nn Haslett, the executrix, with a neces-i sary document in the settlement of her accounts ; not an ac- 316 BILLS AND NOTES.— Remedies on. But a nego liable note discharges a simpla contract. Contra, in Maryland. knowledgement thai the original debt was absolutely paid, nor of an agreement to take the note in absolute payment, and to discharge the estate of William Haslett from all further liabili- ty ; but only that the notes when paid, should be in discharge of the original debt, showing on what account they were given, and to prevent a recovery on both causes of action. This would seem to be the fair understanding of the receipt, no motive ap- pearing to induce John Heslip, to take the notes in full and ab- solute payment, and to discharge the estate of William Haslett. And it is believed to be in accordance with the usual understand- ing of such receipts, creditors not being presumed when they take the notes of third persons, on account of precedent debts, to intend to receive them in absolute payment, and extinguish- ment of such debts , but only sub modo^ that is, in the event of their being paid, unless otherwise expressed in the receipts, and we are not without judicial decisions in consonance with this view of the subject. 10. Thatcher, et al. v. Dinsmoore. May T. 1809. 5 Mass. Rep. p. 299. S. P. Maneely v. M'Gee, Chapman v. Du- RANT. 10 Mass. Rep. 47. Parsons, C. J.. It has long heen settled as law in this state, that a negotiable note, given in consideration of a simple con- tract debt due, is a discharge of the simple contract. 11. Patapsco Ins. Co. v. Smith, et al. June T. 1827. 6 Harris & Johns. Per Cur. If a debtor give his promissory note on account of a pre-existing- simple contract debt, the note does not merge or extinguish such debt ; but the creditor on non payment of the note, may resort to the original contract. XV. THE REMEDIES ON A BILL OR NOTE. (A) By action of assumpsit. 1st. When it lies. 1. Pierce v. Crafts. Jan. T. 1815. 12 Johns. N. Y. Rep. 90. S. P. Smith v. Smith. 2 Johns. Rep. 235 ; Arnold t. Crane. 8 Johns Rep. 81. oiiumpsit Assumpsit on the common money counts. Plaintiff offered BILLS AND NOTES.— 5)/ action of assumf.sit. 317 in evidence two notes signed by the defendant payable to ^^^^''^'\l^^J ^^l ex. It was contended that the notes could not be given in evi-notepaya dence to support the declaration. The Court overruled the ob-g,.^Q°[^^j^Q iection and charo-ed the jury that the notes were admissible evi- endorsee . . a^^ainst tho dence in support of the declaration. Verdict for the plaintiff, maker, defendant e:^cepted, and error to this Court. Per Cu'r. Piatt, J. It is objected that the plaintiff cannot recover ; that indebitatus will not lie except between privies.* To this objection there are two answers ; first there is a legal privity of contract between the maker of a negotiable note, and the assignee or bearer, as in this case. It is a contract to pay the money to whoever may become entitled to it by transfer, as bearer ; and such privity commences as soon as the bearer be- comes entitled. Secondly, it is not true that the action for mon- ey had and received, can only be grounded on privity of con- - tract. It lies against the finder of money lost. Judgment affirmed. 2.; Cole v. Cushing. March T. 1829. 8 Pickg. Mass. Rep. 48. S. P. Wild v. Fisher. 4 Pickg. Rep. 421 ; Pierce v. Crafts. 12 Johns. N. Y. Rep. 90. Held by the Court, Par/cer, C J., that an action for money So an en had and received, v,^ould lie by the indorsee, against the maker j^^^^ ^^^^ of an accommodation note, made for the benefit of the payee, f^^ the ma •^ ker 111 an a« Vide, Haskins v. Dunham; Anth. JV. P. 81 ; Page v. Bank q/'tionformo Alexandria, 7 Wheat. 37 ; Willis v Crooker, 1 Pickg. 204. anareeeiv ed. 3. Parker et al. v. The United States. April T. 1816. 1 Pe- ter's C. C. U. S. Rep. 262. Error from the district Court. „ , „ But an ac The declaration in the Court below was for money had andceptorofa bill of ex * Indebitatus assumpsit will not He by t'ne endorsee against the acceptor of a bill of exchange ; Brown v. London, 1 Mod. 283. There being no privity between the parties, special assumpsit is the only form of action that can be sustained; Bishop V. Young, 2B. & P. 78. And it is not necossary to aver, the defendant had notice of tho endorsement; Heald v. Johnson, 2 Smith's Rep. 44; Reynolds v. Davis, 1 B. & P. 625. The declaration stated the cndarsement to be made before the bill be- came due, when in fact the endorsement was made after, Lord Ellenborough held the variance immaterial ; "Xoung, et al. v. "VVright, 1 Campb. 140. In a suit by the endorsee against the maker of a promissory note, the plaintiff may recover on a count for money had and received; Dimsdalo v. Lanchester, 4 Esp. 201 ; Master v. Miller, 4 T. P>.ep, 339; or against an acceptor of a bill of ex- change; Tatlock V. Harris, 3 T. Pi, 182. Vide the cases, Gibson v. Minet, 1 H. BIk. 602; Whitwell v. Bennct, 3 B. & P. 539 ; Way man v. Bend, 1 Campb. J 75. 318 ' BILLS AND l^ OTES.— Remedies m. changecan received by Parker, to the use of the United States. It ap- not main i -r. i - • i ^ •^^ r i tain an ac peared Parker received two bills of exchange from the commis- ne°yhadamisary general, for a debt due him from the U. S. Parker endors- receivcri, ed those to T. S., &c. which being presented to the commissary who has not , l -r> 1 ^t t ^ -j ^ •,^ .-i paid the general, were accepted. Parker was then debited with those '^'^'- ' bills, and a suit instituted against him for the amount, and anoth- er balance which was alleged to have been in favour of the U. S. It was admitted that those bills ^had not been paid at the com- mencement of the suit. Judgment for plaintiff, from which the plaintiff in error excepted. Per Cur. Washington J. If there be any case in which re- sponsibility to pay money, has been decided, to afford a ground of action for money had and received, I have never met with it. Responsibility merely, may entitle the party to an action, but not this form of action. It was never yet heard of, that the acceptor of a bill of exchange, without funds of the drawer in his hands, was allowed to sue the drawer, without proving he had paid the bill, or done sumething equivalent thereto. Judgment reversed and entered for the plaintiffs in error. GiLMORE V. Pope. Oct. T. 1809. 5 Mass. Rep. 491. S. P. The Worcester Turnpike Corporation v. Williard. 5 Mass. Rep. 80. Or an agent Assumpsit hj the plaintiff, as agent of the Taunton and South vaiion.°'^^° Boston Turnpike Company, on a subscription paper, wherein the subscriber engaged^to take a certain number of shares. Per Cur. Parsons, C. J. If by the" terms of the subscrip- tion, the associates severally engaged to pay the assessments made on their shares, the corporation might maintain an action on such an engagement, to recover the amount of the assess- ments. And we are of opinion that this corporation might maintain an action on this agreement, to recover of the defend- ant the assessments made on his shares. But an action cannot be,_maintained in the name of a mere agent of the corporation, as in this transaction the plaintiff has alleged himself to be ; there being no consideration as between the agent and subscrib- ers, to support an action of assumpsit. 2nd. Pleas and defences therein.* * A plea of tender, made after the day of payment of a bill of exchange, though before action brought; Hume v. Pcploe, 8 Eust.'168 ; and a 'plea that the defend- BILLS AND NOTES.— By actio7i of assumpsit 319 Smith, et al. v. Lusher, et al. Dec. T. 1825. 5 Cowen's N. Y. Rep. 688. Assumpsit by the defendants in error, as endorsees of a pi'oi^" ^jv on Tj^o issory note, made by^'one of several copartners, under their firm, missory • 1 1 i" r- A • 1 ^ • i.- rc • note made Without the knowledge or consent 01 Smith, the plaintiti in er- j^^ ^ firm, it ror, who was one of the partners ; the note was payable to one'^^oclefence ' _ X ■" i- J jor one oi of the firm, or his order. the partners 1-1 1 it '^o plead Colde7i, Senator. Ihe power of partners to bind each other, that it was results from the nature of partnership, and fiom the law mer- |^"^j^^^j^.^^'i^^^ chant applicable to them. It is no defence for one of the knowledge. partners to say that he did not assent to the contract, or that it was made without his knowledge. If he had expressly assented, it certainly would not avail, if the party claiming the benefit of the contract, did not* know that he had dissented. And if the transaction was honafide^ and concerned matters that were within the scope and accustomed dealings of the partnership, I doubt whether a plea by one partner, that the indorsee knew %vhen he took a note, that it was given against the will of the otliQr part- ners, would be a bar to an action on the note. 2. Grant, et al. v. Elliot. May T. 1831. 7 Wend. N. Y. Rep. p. 227. Assumpsit hjih.e payee of a bill of exchange, against the ac- jvjoj. i^ ^^^ Ceptor. ^ action by ^ the payee a Defendant pleaded that the bill was accepted for the accom-g^i'^'St the _. n.cc6ptor modation of one Graham, the drawer, of which the plaintiff had that he ac notice. ceptedwith out consid Per Cur. Savaa-e.. C.J. The defendant says he ought not oration , , . -. . . . fiom the to pay the bill, because no consideration passed between him drawer. and Graham, and this was known to the plaintiffs. This is no defan'ce. Judgment for the plaintiffs. ant gave a bond in discharge of the bill, is bad ; it amounts to llio general issue; Hackshavv V.Clark, 5 Mod. 314. And Ld. Ellenborough held, that it was not a good plea, that the bill was given as the consideration of a lease, to be accepted by the plaintiff", and of letting the defendant into posession of the premises, and that the plaintiff" refused to execute the lease ; Moggridgc v. Jones, 14 East. 486. So also suffering a judgment by defliult, admits the sum due on the nots or bill; Snow- den V. Thomas 2 Stra. 1149. And the courts will refer it to a master or prothono- tary to ascertain what is due for j>rincipal, interest, damages, and costs ; Andrews V. Blake^ 1 H. Bl. 529; Rashleigli v. Salmon, 1 H. BI. 252 ; Shepherd v. Charter, 4 T. R. 275 ; Biggs v. Stewart, 4 Price, 134. 320 BILLS AND NOTES.— Remedies on. 3. Crawford v. Millspaugh. Jan. T. 1816. 13 Johns. N. Y. Rep. 87. S. P. Harkison v. Close. 2 Johns. Rep. p. 450. Nor a re Assumj)sit by the second endorsee of a promissory note, ISr oft ^g^inst the endorser. holdcr^not defendant pleaded puis darrein continuance., that the plaintiff under seal released the maker of the note, and offered in evidence the fol- fencc in an lo'^^'irig release: "It being represented to me, that Charles action a Lindslev is insolvent, I do hereby release him from a certain gainst the •' i i • endorser, note of $700, drawn by him and endorsed by Joseph Jackson and Peter Millspaugh, of which note I am the holder , not, how- ever, relinquishing any right I have to recover from any, or all of the endorsers upon said note. Dated Sept. 23, 1814. A. CRAWFORD." Verdict for plaintiff. Per Cur. The writing offered in defence was made and exe- cuted after the note had become due, and after the promise on the part of the endorser was broken, and could not be discharg- ed by a new agreement, without satisfaction, unless it was by deed. It is not under seal, and is without consideration ; it must be deemed a nudum pactum. Frey v. Barker, et al. Nov. T. 1826. 4 Pickg. Mass. Rep. p. 382. Admission Assumpsit atrainst defendants, as maker and sureties of a by the prin . . cipal, and promissory note in these words : his promise -h^-t' t ,-/iotr to pay a Methuen., June 7, Iblo. the surety. For Value received 'I, Amos Barker, as principal, and I, Elijah Jennings, as surety, promise to pay to Mr. James Frey, or his order, one hundred dollars, on demand, with interest till paid, as witness our hands. AMOS BARKER, ELIJAH JENNINGS. Plea the statute of limitations. Replication a new promise. The principal acknowledged the note, and promised to pay it within six years, and the question was, whether it extended to the surety. Per Cur. Parker., C. J. Our la\V does not recognize any dis- tinction between principal and surety, as to their liability to the payee, or holder of a note. If recoverable against one, it is against the other. We believe the law to be, that where there BILLS AND NOTES.— i?2/ action of assumpsit. 321 are two joint contractors for the payment of money, the admis- sion of one, binds the other. There is but one debt, and what- ever establishes the Jebt, operates against both contractors. 5. Savage v. Davis, et al. May T. 1831, 7 Wend. N. Y. Rep. p. 223. Assumpsit hy the plaintiff, as endorsee of a promissory note, ^^V|^^[J'« ^^^ against the defendants, as makers. fiaudulent '^ • 1 o transfer by Plea, that the note at the time of the making thereof, was, theendor and still is, the property of the payee ; and that the payee is in- J^^g^'J^ Joo^j debted to the defendants, &c. ; and that the note was fiaudulent-d-;fer.cel ly transferred. Replication that the note is the property of the plaintiff, omitting to reply to the fraudulent transfer. The defendants contended, that the plaintiff could not recov- er, because by the replication he had admitted the fraudulent transfer. The judge overruled the objection, and verdict for plaintiff. Motion to set the verdict aside. Per Cu7\ JV^f/^yon, J. The replication was no answer to the material fact alleged in the plea, and Vv^iiich continued to the de- fendant the right of set-off. It is the corrupt agreement, by which the note became the property of ths plaintiff, which is charged, and authorizes the defence ; and that the replication should have traversed. We think the admission in the replica- tion of the fraudulent transfer, constitutes a perfect defence. I am of opinion, the defence comes within the provision of the Revised Statutes, vol. 2. p. 354. s. 18. That the plaintiff is to be deemed so far as the equitable defence of the makers is con- cerned, a trustee for the payee, and the transfer to the plaintiffs is void on the ground of fraud. 6. Bank of Troy v. Topping, et al. Oct. T. 1832. 9 Wend. N. Y. Rep. 273. S. P. Ten Eyck v. Vanderpool. 8 Johns. Rep. 120; Schoonmaker v. De Wit. 17 Johns. Rep. p. 304. Assumpsit by the plaintiffs, as endorsees of a promissory note Or no assets made by the defendants. It was signed Margaret Topping, ad- by ^n ad ministratrix, &c. of John Topping deceased. The defendants '""^'^'^■^^<''- proved at the trial, they had no assets, and the estate of the in- testate was exhausted. Per Cur. Savagp, C. J. A promise to pay, by an executor, d'bes not make him liable to pay out of his own estate, but he is chargeable only as executor to the extent of assets in his hands, Vol.. ir. 41 , 322 BILLS AND NOTES.— Ri7ncdies on. as he would have been if no such promise had been made. A note given by an executor, by way of submission to arbitration, is not binding unless there is assets in his hands. The defendants in this case have shown, that they fully achjiiniEtered, and had no assets in their hands; there was then no consideration for their promise. The plaintiffs are entlorsees of the note, which was endori^cd for the accommodation of the intestate, and they paid no value to the endorser. Vide Thatcher v. Dinswoore, 5 Mass. Rep. 301. 7. Kent, receiver of the Franklin Bank, v. Walton. May T. 1S31. 7 Wend. N. Y. Rep. 256. But where ^^ssu'iiipsit by the second endorsee of a promissory note, a usurious against the maker. The note was made payable to H. Kenne- note lias i i i i i • been trans dy, and endorsed by him to T. Ash, and by Ash to the Franklin a"ne\Ar note ^^1^^. It was given in renewal of a former note, which was taken &o;ir.' endorsed by Kennedy to Ash, who charged a discount of from fide by Ih^ ,i ^ I X Tl hokler, the One lourth to One halt per cent, per month. Ihere was no usu- usuryot the ^.^ ^^ ^^^, gg^oj^j note, given for the renewal of the usurious one. first cannot '' . . be set up as The deposition of Ash "ft'as read in evidence, he testified that he an actioi?on '^'^^^°^^'^^^*^ the first note, and previous to Kennedy's endorsing the second it, Kennedy told him that it was lent to him ])y the maker, with- out consideration, and that Kennedy was dead. Pei- Cur. Savage., C. J. Although it had been shewn that the first note was tainted with usury, and, therefore, void in the hands of the Franklin Bank, who had paid value for it without notice of the usury, yet the giving a new security to an innocent holder for valuable consideration, constitutes a new transaction, and the usury of the hrst note does not affect the second. Vide Powells v. Walcrs.) 8 Cowcti's Rep. 681. 696. (B) By action of debt. Vide tit. Debt. \st. When it lies. 1. Smith v. Segar. March T. 1809. 3 Hen. & Mumf. Va. Rep. p. 394. S. P. Mackie's exr. v. Davis. 2 Wash. Rep. p. 219. not^ie^jy Held by the Court, that an action of debt will not lie by the the payee payee against the acceptor of a bill of exchange * acceptor. ^ ^^^ ^^,^^ ^,_,.jj ^j^ ^^ ^^ indorsee against the drawer of a bilJ, payable to his or- Debt will BILLS AND ISIOTES.— By action in general 323 2. Raborg v. Peyton. Feb. T. 1817. 2 Wheat. U. S. Rep. 385. Per Cur. Story^ J. This is an action of debt brought ,|'^\y7,;|! against the defendant in error, as acceptor of a bill of exchange findoi's'^e of by plaintiffs in error, as endorsees. The declaration alleges that gj^insuhe the bill was drawn, accepted, and endorsed, for value received. ^^^l'J^li|[^'\^ The onl}' question is, Y.hetjicr debt lies in such a case. We are expressed of opinion, that debt lies ujion a bill of exchange by an endorsee ^aiue re of the l)il] against the acceptor, when it is expressed to be for reived. value received. (C) By ACTION IN GENERAL. An action accrues on 1. Greeley, et al. v. Thurston. May T. 1827. 4 Greenle-.,f's Me. Rep. 479. S. P. Sued v. Britt. 1 Pickg. Mass. Rep. 401 ; City Bank v. Cutter, i:t al. 3 Pickg. Rep. p. 414. Jissmnpsil by the payee sgainst the maker. Per Cur. Wc.^fov, J. The note declared on, is dated April "\^^fy '^'^'• _ ' _ _ ^ 'a bill oi- ls, 1825, payable in six months with grace, and became due onnoto, talli the 21st of October. Was it sueable on that day : It is a re-'"*^' markable fact, that no decision directly on this point has been adduced, nor have we, after consideral)le lesearch been able to find one. Upon consideration, it is our opinion, that bills of exchange, and promissory noles should be paid on demand, if made on a reasonable hour, on the day they fall due ; and if not then paid, that the acceptor, or maker may be sued on that day, and the endorser and draw^er also, after notice given and duly forwarded. WiNTHROP V. Pepoon, et AL. INlay T. 1795. 1 Bay's S. Ca. Rep. 468. Per Cur. An action will lie on a bill of exchange protested And before for non acceptance, although the time for payment had not ex- if protested pired. f'^'' »"" ^° *^ ceptance. der; Stratlon v- Hill, 2 Chit. Rep. 126. Eilher debt or indthitalas will lie by Use payee against the drawer of a bill of exchange, expressed to be for value received ; Hodges V. Steward, Skin, S46 ; Welsh v, Craig, 1 Sia. 680. 324 BILLS AND ^OTES.— Remedies on. Fisher y. Bradford. July T. 1830. 7 Greenleaf 's Me. Rep. p. 28. S. P. Little v. O'Bryen. 9 ATass. Rep. 423 ; IvIarr v. Plumer. 3 Greenleaf 's Rep. 73; Bowman v. Wood. 15 Mass. Rep. 534; Wilson v. Codman. 3 Cranch's U. S. Rep. 208. The holder r» / < rrr . t >^^^ • i • • ■. •. ofa ne?r)tia FcrLur. wcsion, J. Iheie is nothing in the law, which may"?iain ^°^"'^'^^s ^^e holder of a negotiable note, after it has been endors- tain an ac ed from siiing it, in the name of another, with his consent ; pro- thc nameof'^'^^^'^ it is unattended with any circumstances of fraud or op- another, pression. Nor is it unlawful foi: another person to institute such wuh his . . •11 • -1 consent, or suu in his own name, with the privilege and consent of the par- nam'^fbr" ^J beneficially interested. Every facility is afforded to the cir- thc benefit culation of negotiable paper after endorsement. It may pass from hand to hand, either with, or without consideration, or may be sued by one in trust for another. 4. MosiiER V. Allen. Oct. T. 1820. 16 Mass. Rep. 451. doTsce ofa Pcr Cur. Where the payee of a note not negotiable, puts negotialjle j^jg name upon it, he authorises a suit to be commenced in his note cannot ■*• . maintain an name Upon it. But not where the note is negotiable, and he fn the n'lnv^ ^^*^°^'^^^ ^^5 ^^^^ endorsement transfers the right of property, and of the pay the right of action. And the payee, by the endorsement, has his consent, lost all property in the note, and cannot maintain an action in contra QY)&. j^jg Qy^-^i name upon it. note not ue '^ gotiable. 5. Stearns v. Burnham. May T. 1828. 5 Greenleaf 's Me. Rep. 261. S. P. GooDAviN V. Jones. 3 Mass. Rep. 517 ; Russel V. Swan. 16 Mass. Rep. 314; Thompson v. Wilson. 2 N. Hamp. Rep. 291. the endorse ^«wm/?5i^ by the endorsee of a promissory note against the mentofan ^^]^qy. executor administra The note was pavable to Wm. Stearns, of Salem, Mass., and torofanoth , , , ,'. .^ i , . . a i ^i erstate. endorsed to the plaintiff by his execuirix. And the question was whether the plaintiff could recover by the endorsement of executrix, deriving her authority from another state. Per Cur. Mellen^ C. J. Can an executor or administrator, acting under the laws of another state, endorse a note due from one of our citizens, and give by that means, the endorsee power of suing for and recovering the note in our Courts. If this can be done, it will be an indirect mode of giving operation in this state BILLS AND ^OTES.— By action i7i general. 325 to the laws of Massachusetts, as such ; or in other words, to an authority derived directly from laws, which are not in force in this state. By adopting such a principle, the effects or credits of a testator or intestate, found in this state, might be with- drawn, which might be necessary for satisfying debts due from su.ch testator or intestate, to citizens of this state. We believe the endorsement gives no right of action here to the plaintiff. Vide Robinson, et al.Y. Cvnndall, ei al. 9 Wend. 425; where the principal in the above case was recognized by Sutherland, J., who observed that the administrator might maintain an action in his own name, on a note payable to his intestate or bearer, but the Court paid no attention to a foreign administration. 6. Ball v. Allen. March T. 1819. 15 Mass. Rep. 433. S. P. Brown v. Gilman. 13 Mass. Rep. 158. Held by the Court, Parker, C. J. that where one was posses- i^o°^le\. of an sed of an order for the payment of money payable to bearer, ad- '^^^'e'" P'^y^ 1 IX .-1 1^1.. .1 1- „ ble to bear dressed to no particular person, but merely " to the cashier,' cv cannot the holder can maintain no action upon it against the person ^"'^■"'^^'" ^" ^, o ^ action on it subscribing it, v.'ithout showing he paid a valuable consideration against the n •, person sub •■■^^ I''* scribing it, ' Avithout ry showing that he KiRBY V. Cogswell. Feb. T. 1804. 1 Caine's N. Y. Rep. byT.^^"'^ p. 50G. Action on a promissory note by the endorsee, against the But the en maker. It appeared that the plaintiff was one of a firm, and firm, of had endorsed the note, in the name of the house, to himself, ''^'^"^'^i^^'^ ... . ^ member and now sued in his individual capacity. It was contended may sue the that the plaintiff individually had no right of action. h]sown"en Per Cur. An endorsee of a firm, of which he is a member, ^°'sement . ' _ 'in the name may, on an endorsement made by himself, in the style of the part- of the firm. nership, maintain an action against the maker of a promissory note. Farnsworth v. Leonard Sweet. Oct. T. 1830. 5 N. Hamp Rep. 26G. One Dexter Sweet received a note from the plaintiff against ^^^ .^- !"^y the defendant to collect, and lost it. He then procured another action on a note from the defendant, which the plaintiff refused, and vfho'^^^^'l}^^^ 326 BILLS AND l^OTES.—Remedieson. ^^V?i^^' sued him and recovered the amount of the note, and this suit nominal was brought by Dexter Sweet, in the name of the plaintiff. will not be Verdict for thc plaintiff. to'iiuerfere. Richardson^ C.J. The question is whether, under the circum- stances stated in this case, this suit can be maintained fov the benefit of Dexter Sweet. We think it may, nnd Famswortk cannot be permitted to interfere any further thnn to demand and receive an indemnity against any costs for which he may be lia- ble. It is no answer to the action, that Farnsioorth never ac- cepted the note, and has no interest in the suit. It is enough that the note was accepted by the person for whose benefit and at whose request it was given. 9. Joseph Willoughby v. John Willoughuy. Sept, T. 1830, 5 N. Hamp. Rep. 244. A note 'Y\iQ plaintiff declared upon the following note : made paya ^ i o oi*C°D^?' " ^"lli^5 June 25, 1828. For value received, I promise to pay evidence of Washington or Joseph Willoughby, $200, on demand with inter- witTrB. est. JOHN WILLOUGHBY." and C D jointly, and The Court nonsuitcd the plaintitT, on the ground that the note neither can on the face of it showed a contract with W'ashington and Joseph maintanian . . " action upon vVilloughby, and not with either separately. ,it separate ly. Per Cur. We are of opinion, in this case, that the note is evidence of a contract with W. & J. Willoughby, and that or in the note must be understood to mean and. Such being the purport of the note, upon the face of it, this action cannot be maintained upon it, and the nonsuit must stand. 10. Walrad, et al. v. Petrie, et al. May 1830. 4 Wend. N. Y. Rep. 575. Contra. Jlssximpsit by the plaintiffs, as payees of a promissory note, payable to P. Walrad, Junr., or Robert Bowman, for value re- ceived. Held by the Court, Marcy, J., that the note could not be de- clared on as a promissory note within the statute, and that the Court could not consider the word or in the note, the same as the word and. BILLS AND 'NOTES.— By actiQ7i in general, 327 IJ. M'KiNSTER V. Bank of Utica. May T. 1832. 9 Wend. N. Y. Ilep.-46. S. P. Smedes v. The Bank of Utica. 20 Johns. Rep. 372. S. C. 3 Co wen's Rep. 663. Held by the Court, Sutlierland, J., that where the plaintiff, ^^.Jj^™^-^- who was the holder of a negotiable note, as endorsee, turned itnoteovei to ,^ , 11 . 1 • . (• ^^ J. r B.assecu out to one Pardee, as collateral security lor the payment oi a j.i^y ^j. ^^ • debt the plaintiff owed him, and Pardee left the note for collec-tlebt,^vllo tion at the banking house of the defendants, who neglected to with C. for give notice of the non payment to the endorsers, whereby the ^"j^'^'i^y''j"|g note was lost to the plaintiff, who was obliged to pay the amount negligence of it to Pardee, that the plaintiff might maintain a suit against ^o'te, the bank, for neo-lectins; to give notice of the non payment of ^^^^f'^'^y-'^' J D to o 1 .' hai! to pay the note. the amount to B., held A. may sue 12. C. for the Dicks, et al. v. Cash, et al. jMay T. 1827. 18 jMartin's Lou. the lioie. Rep. 45. 1 IMartin, 301. 372. N. S. Held by the Court, Porter, J., that where it appeared the plain- Where the . . T . . plainliffhas tiff had parted with his interest, and gives no title but the posses- paired with sioDi he will be nonsuited. ^n^'^eT he will be 13. • nonsuited. Clapp v. Day. May T. 1823. 2 Greenleaf 's Me. Rep. 305. S. P. BuFFUM V. CiiADwicK. 8 Mass. Rep. 103. Assumpsit z^^m^i the defendant, as the maker of a promisso-^'^"^g^">o* 1 ^ • • re It r ^ • an aSSOCia ry note, made to the plamtift, "as treasurer of the proprietors tion msiy of the new meetinp'-house in Nobleboroug;h, or his successors in ™^"'''^'" !;" o o ' ticiion Oil d said office." note in his • ■ n- IT own name. Defendant pleaded, that the-plaintifi and defendant and divers other persons, w^ere members of the association, for the purpose of building the meeting-house, and that the note declared on, is the joint property of the whole association, they being in law but one person. Per Cur. Mellen, C. J. The question is, whether the dec- laration be good. It is contended that the plaintiff has no legal interest, and that, therefore, he cannot maintain this action. The association is said to be voluntary, and without any legal incorporation, and the note was made to the agent by his name, without his agency, or office. We think he may have an action in his own name on the note, the addition of his character as agent being descriptio persona. 328 BILLS AND NOTES.— 0/ the declaration. XVI. OF THE DECLARATION. Dole v. Weeks. June T. 1808. 4 Mass. Rep. 451. S. P. Gil- bert V. Nantucket Bank. 5 Mass. Rep. 97. fion is suffi ^^^^ plaintiff declared against the defendant on a promissory cientwith note, for that, &c. the said Weeks, by his note in writing:, of out statin''' 'J a' an express that date, by him subscribed for value received promised one J. Se pjaln^° K. K. to pay him, or bearer. And the plaintiff is the bearer of tiff.* the said note. General demurrer. It was contended in support of the demurrer, that the declaration ought to have alleged a promise directly to the plaintiff on a note payable to the bearer. Per Cu7'. The declaration is certainly not in the usual form, it being common to allege notice, whereby the defendant became liable, and in consideration thereof, promised, &c. On general demurrer, we must presume the plaintiff to be the lawful bearer of the note. When there is sufficient matter substantially alleg- ed, to entitle the plaintiff to his action, the declaration will be good on a general demurrer. On *ais ground we support this declaration. Declaration adjudged good. RiRBLE ET AL. V. Jefferson. Sept. T. 1828. 5 Halst. N. J. Rep. 139. S. P. Halsey v. Salmon. Penn. Rep. 916; EsTELL V. Vanderveer. 2 South. 782; Disborough v. Vanness. 3 Halst. 231 ; Read v. Wilkinson. 2 Wash. C. C. Rep. 517. In an ac In Certiorari. Jefferson, the plaintiff below, declared against payee of a the defendants below, as makers of two separate orders in his bill of ex favour, drawn on J. & J. Sumers, who refused to accept them, change a ..,, . gainstthe Without averring either due notice to the drawers, of the non- g'^''^^^'^'>^^^'^ acceptance, or a legal excuse. mand must p^j. Cur. Ewina;^ J. To enable Jefferson, to recover in con- substantial p i r i • i i • • i ly aver that sequence of the refusal to accept either due notice in due noti(», in ggj^sQj^^ to the drawers, of the non-acceptance, or a legal ex- * Where tliere were several cnJorscrs of a bill, the plaintiff may declare an en- dorsement by the payee to his immediate endorsers, without stating the interme- diate ones ; Chafers v. Bell, 4 Esp. 210. .And where a bill is endorsed by procura- tion, it should be .stated so in the declaration ; Levy v. Wilson, 5 Esp. ]80. And a declaration by the endorsee of a note against the endorser, is good without stating the default of the maker ; Bilson v. Hill. 7 Mod. 198. And notice of the endorsc- 4r mcnt to t!ie maker, need wtX be alkged or proved ; Ship v. Hook, 2 Com. 563. ance.^ BILLS AND NOTES.— 0/ the declaration. 329 cuse, for it was necessary, not merely to be proved on the ^^"_^«^s^^^=JJ^"» trial, but to be shown substantially at least in the state of de- to the draw raand, for otherwise he had not, and did not show a legal cause non\ccep of action. ^^'^^ °'" non pay meni of th 3. bill. Read, admr. v. Adams. Jan. T. 1821. 6 Sergt. & Rawle's Pa. Rep. 356. S. P. Brown v. Van Braahn. 3 Dall. 344; Brown v. Barry. 3 Dall. 368. Assumpsit by the endorsee against the endorser of a foreign But in Pa. bill of exchange. The declaration averred non-payment of the pg^^^^!^ "^ bill, protest for non-payment, and notice to the defendants, but aver non ac ^ i J ' . ceptance or contained no averment of non-acceptance, or notice oi non-pay- notice of ment. ^51"^=^' Per Cur. Tilghman, C. J. The custom of merchants in this country does not require, to recover on a protest for non-payment, that a protest for non-acceptance should be produced. A dif- ferent rule prevails in France, and among several of the nations of Europe. And the reason why a different rule prevails in America, is probably owing to the state in which commerce and navigation stood at the time when the usage commenced — no- tice of the non-acceptance of a bill payable at thirty or sixty days sight, would hardly be received here before the day of payment, f * The case came before the Circuit Court of the United States, in the year 1827, before Justice Story. Wallace V, Agry. May T. 1827. 4 Mason's U.S. Rep. 336. S. P. ^^IASoN v. Franklin. 3 Johns. 202. The declaration contained two special counts on a bill of exchange, as drawn by the order, and on account of the defendants, and averred the presentment for ac- ceptance, and protest for non-acceptance and due notice thereof to the defendants, and also a presentment for payment, and protest for non-payment, and duo notice thereof. No presentment for payment, or protest for non-payment, was proved in the case. It was contended that the plaintiff was not entitled to recover, because the averment in the declaration of a presentment for payment, and protest for non-payment, was not proved ; and though unnecessary to have been averred, yet the plaintiff must prove the case as laid. Per Cur. Story, J. Tlie declaration contains a prior averment of a present- ment and protest for non-acceptance, and due notice thereof to the defendants. The cause of action of the plaintiff was complete by such non-acceptance and notice, and it was wholly unnecessary afterwards to make any presentment for payment. The other averments, therefore, of presentment for payment, &c. are wholly imma- terial, and ma}' be rejected as surplusage. They constitute no part of tlie aver- ments, entitling the plaintiff to recover. t But a different rule prevails in England. The declaration should etate that the bill was presented to the drawee, and dishonoured the day it became due; Mercer Vol. n. 42 330 BILLS AKD NOTES.— 0/ the declara/ion. 4. Sebree v. Dorr. Feb. T. 1S24, 9 Wheat. U. S. Rep. 558. An omis This was an action by the assio-nees of a promissory note eion to aver . , •' ^ . , '■ •> the place against, the assignors. The decLiration omitted to state, the noirwas pl^ce where the note Avas made payable. madepaya p^^. Qj^_ Sfofv, J. Nothino; is better established, both upon bla IS fatal. . . •^' . o , ' _ J^ principle and authority, than if the place where a note is paya ble is omitted in the declaration, it is fatal ; for the evidence pro- duced does not support the declaration. 5. Bank of The U. S. v. Smith Feb. T. 1826. 11 Wheat. U. S. Rep. 171. But it seems Action by the endorsees against the endorser. against the -^ _ _ " makerorac The Court, in this case, without giving any decided opinion, biUof ex* were inclined to think, that as against the maker or acceptor of a change itisi^j]] pf exchano;e, payable at a particular place, no averment in unnecessa ojij l i ' _ ry. the declaration of a demand of payment, at the place designated, would be necessary. But as against the endorser of a bill or note, such an averment is, in general necessary. Vide ante^ demand of payment, &c. 6. Caldwell v. Cassidy. Feb. T. 1828. 8 Cowen's N. Y. Rep. 271. S. P. WoLcoTT V. Van Santwood. 17 Johns. Rep, 248. Orindcclar per Cur. Scivage^ C.J. In declaring on a promissory note, note paya payable at a particular time and place, the plaintiff need not aver t*"^^ r "^la^e ^ demand, at the time and place. It lies with the defendant to the plaintiff show that he was ready at the time and place ; in which case he verade ^^J plead this ; and bring the money into court, as on a plea mandaithcQf tg^(^|gj. But this plea o-oes merely in bar of the damages, time and i • i i • /. i i • place. not of the action ,' and is bad, if the money be not brought into court. Otherwise i/^ecMW where a note is payable on demand^ at a particular place. V. Southwell, 2 Show. 180 ; and that he refused to pay, and that the defendant had notice; Rushton v. Aspinal, 2 Doug. 680. Or if the drawer could not be found, that fact should be averred in the declaration as an excuse for non presentment; Stark V. Cheesman, Carth. 509. Per Car. It is quite clear that it need not be ivtTred that protest of non pay- ment was made ; Peterson v, Beecher, 6 JNIoore, 319 ; Galo v, Walsh, 5 T. R. 239. Nor of an inland bill ; Borough v. Perkins, 6 Mod. 80 ; Hani.'! v. Benson, 2 Stra. 910; Solomons v.Stovoly, cited 2 Doug. 684 ; Borough v. Perkins, 1 Salk. 130. BILLS AND NOTES.— 0/ thz declaration. 331 Bank of The U. S. v. Smith. Feb. T. 1826. 11 Wheat. U. S. Rep. 171. S. P. Berkshire Bank v. Jones. 6 Mass. Rep. 524; Woodbridge, et. al. v. Brigham, ^t al. 12 Mass. Rep. 403. Held by the Court, Thompsom, J., that in an action ^g^inst ^^ ^^'"^^^1^'^'' the maker of a promissory note or the acceptor of a bill of ex-?^ P^yrficnt 11 111111- . in an action change, pa^-abJe at the banic, the declaration need not contain against the an averment, nor is it necesary to prove at the trial, a notice '"'^'^^'' °'",* ' J 1 T note, or tlia of demand and payment. Such proof may be dispensed with, acceptor of and all that is necessary is, that the Bank, being a holder, ex-bieata * amine the account of the maker with them, and ascertain wheth j^^nk tha ' bank being er he has any funds in their hands. the holder. Carley v. Vance. Oct. T. 1821. 17 Mass. Rep. p. 389. Assumpsit upon a promissory note, payable at Mr. E; L's g^, -^^ ^^,j^^ counting-room, in Cross Street, Boston, on, or before the last sachusctts. day of June next. Defendant pleaded that he was ready at the said counting-room in Cross Street, Boston, with sufficient money to pay the said note, and that the defendant was not their to receive it. Demurrer and joinder. , Per Cur. Wild, J. The objection taken in this case to the declaration, for the want of an allegation of a demand, at the . time and place appointed for payment, cannot, we think, be main- tained. It is difficult to reconcile all the cases, but the weiorht of authority is opposed to the objection, and it has no founda- tion in principal. Vide Robhins v. Luce, 4 Mass. Rep. 474. 9. Weed v. Van Houten. Sept. T. 1827. 4 Halst. N. J. Rep. p. 189. S. P. Foden v. Sharp. 4 Johns. N. Y. Rep. p. 183; Carley v. Vance. 17 Mass. Rep. 389; Bank OF United States v. Smith. 11 Wheaton's U. S. Rep. p. 175. Per Cur. In an action on a promissory note, made payable So in Now at a particular place, brought by the payee, against the drawer, J*'*«y- a special averment of presentment at that place is not necessa- ry to the formality, or validity of the declaration ; nor is pr^of of it requisite on the trial, on a plea of non assumpsit. 332 BILLS AND NOTES,— 0/ the declaration^ 10. Williams \. Matews. Aug. T. 1824. 3 Cowen's N. Y. Rep. p. 252. S. P. Ogden v. Conley. 2 Johns. Rep. 274. Averrnga The declaration set forth a demand of the makers, and notice payments thereof, and of non payment in the^ usual form. It appeared satisfyedby that One of the makers was an infant, and that the other had ab- siateof sconded. It was contended for the defendant, that when he was fic'.s, ^vhicli ^(.(.ggg^ijjg ^t ^^-33 j^Qt enough to show that he v.-as an infant. dispenies ' " with actual pg^ Q^^^^ Woodworili^ J. Averring a demand of payment, - - and notice of non payment, in the usual form, is satisfied by proving a state of facts, which dispenses with actual demand, &c., and showing due diligence, &c. the facts need not be spe- cially stated in pleading. 11. Stewart, et al. v. Eden, et al. Aug. T. 1804. 2 Caine's N. Y. Rep. 121. So evidence ^8 ssiimpsit On a promissory note, by the endorsees, against the that the ma r ^ ^ J ■> J ' & ker cannot cxecutors 01 the endorser. willsupport The declaration averred a demand on the makers, and their an aver refusal to pay, and the evidence was, that they could not be ment, that i. J ^ ' J the note found. ed^Rnd^Dav'^ P^T Cur. Livmgston^ J. If a maker of a promissory note mentrefus cannot be found when it is due, evidence of that is sufficient to ed support the general averment that the note was presented, and payment refused. 12. Hill V. Varrell. April T. 1825. 3 Greenleaf 's Maine Rep. p. 233. But aver Assumpsit by the endorsee, against the drawer of a bill of ex- ringdue no (,]^jj,^g.g^ 1'jjg declaration averred due notice of the dishonour of t.ic6 El no ^ proving due the bill to the drawer, the evidence was, that the holder had used givfnodcl° <^l^e diligence to give notice, without effect. witlioutef pg (j^^.^ MdUn, C. J. The declaration states that notice feet, will ' not support of the non payment, was duly given to the drawer. When such tion^*^^'^"' is the averment in the declaration, legal notice must be proved ; and the proof of due and reasonable diligence, when ineffectual to give such notice, will not support such averment ; on the con- trary, the plaintiff should aver that he had used such diligence, but had been unable to give notice of the dishonour of the bill. Vide Blakely v. Grant, 6^Mass. 386, the proof, therefore, does not support the declaration. Vide Bond v. Farninn, 5 Mass. Rep. 174. BILLS AND NOTES.— 0/ tks declaration. 333 13. Saxton, F.T AL. V. JoHNsoN. Oct. T. 1813. 10 Johns. N. Y. Rep. 418. S. P. Meredith v. Hinsdale. 2 Caine's Rep. 382 ; Petrie v. Woodworth. 3 Caine's Rep- 219; Pease, et al v. Morgan. 2 Johns. Rep. 468; Woo© V. Baily. 13 Johns. Rep." 486. The declaration contained a count upon a promissory note in An aver ,, . i-i'. ijiirii -1 mcntofthe the usual form, in which it was averred the defendant promised avoids "for to pay, &c. for value received. And in offering; the note in evi- '^;}J"^ ^^*^^^^ r J ' _ " _ eel ' when dence,it was found not to contain the words "value received," descriptive For this variance the plaintiff was nonsuited. Motion to set °/ ^'\^ "°^®' •'^ II not con aside the nonsuit. taincd in Per Cur. The words " for value received," in the' first count of a fatal v'ari the declaration, were used andjntended for a description of the ^""* note declared on ; and not as an averment inserted by the plead- er. If the defendant had demurred, in consequence of a defec- tive averment of the consideration, the court no doubt w'ould haye considered the words as pait of the note. Vide Jerome v. Whitney, 7 Johns. Rep. 322, v.here it was de cided that the words " value received," in a note not within the statute, is evidence of a consideration; Thomas v. Roosa, 7 Johns. Rep. 461. Vide Rossiter v. Marshy 4 Conn. Rep. 196. 14. Wilson v. Codman's exr. Feb. T. 1805. 3 Cranch's U. S. Rep. p. 193. In error. But an aver J. Codman, the plaintiff below, declared against Wilson, assent that maker of a promissory note, to A. & W. Ramsey, and by themmentofa assig-ned to the plaintiff, for that, whereas the said A. & W. "°!^ ^^'^.^ o _ ^ •" _ •* _ _ . " for value Ramsey assigned the said note to the plaintiff, for value receiv- received" is ed, of which assignment the defendant had notice, &c. It ^vas ^j^^^J]^^gj[^ contended, that the plaintiff was bound to prove the assignment and need to have been made for value received^ as laid in the declaration ed. Per Cur. Marshall^ C. J. The averment, that the assignment was made for value received, is an immaterial averment. The assignee without -value, can as well maintain his action, as the assignee on a valuable consideration. It is, therefore, mere surplusage, and does not require to be proved ; nor does it af- fect the substantial part of the declaration. Vide Welch v. Lindo^ 7 Crunch, 159, 334 BILLS AND NOTES.— 0/ thz declaration. 15. Johnson v. Bank of Kentucky. Spring T. 1827. 5 Monroe's Ky, Rep. 120. S. P. Wilson v. Lenox. 1 Cranch's U. S. Rep. 211. InKentuck Held by the Court, Bibb, J., that a declaration under the stat- mbn'^mist ^^^ of Kentucky, against the drawers and endorsers of a bill of demand the exchange, must demand the interest and costs of protest, or the costs. declaration will be held insufficient. 16. Parsons v. Parsons, et al. May. 1826. 5 Cowen's N. Y. Rep. 476. fmmaTerial '^^^ "°^^ ^^ ^^^^ ^^^^ "^'^^ endorsed after the maker's death, averment in and the endorsee declared against the maker's heirs ; and alleg- a note a ^d that the intestate, in his life time, became liable to pay the gainst the plaintiff, and by reason of the premises, an action accrued against heirs that the heirs. " ihc intcs tate became P^r Cur. Woodwortk, J. It is urged that the proof did not hable to the j^^- jj|-^- j^ the issue, wliich is, that the intestate did not owe the plamtift in _ _ ... his life plaintiff. The allegation in this declaration is, that the intestate, thou'c'h it ap i^ his life time, became liable to pay the plaintiff; and by reason pears that of the premises, an action accrued to the plaintiff to demand of the note had ,,. ,_. ., ,, ,, . ■, not been en the heirs at law. I consider the latter allegation as the sub- fiUftci^his stantial part. The other seems to me immaterial. death. 17. Phelps et al. v. Riley. June T. 1820. 3 Conn. Rep. 266. S. P. SiGONY V. Richards, et al. 1 Root's Conn. Rep. 119. ed by procu The declaration alleged " that the said Riley and Livingston, ration sus ^ certain wTitino- or note, under their hands, by them well ex- tams an ./ n ' ' -' averment ecuted, promised to pay the said Dorcas Phelps. The note was fendaiTs''^ as follows : Noi'folk, Oct. 15, 1815. Sixty days after date, we promised to promise to pay Dorcas Phelps, eighty dollars, in current bank EJfe under bills, such as pass in Norfolk, between man and man, with inter- hSnds^^"^ est, as witness ourhands, value received. RILEY & LUDDINGTON. Per COLLINS BALDWIN. The defendant objected to reading the note, as the declara- tion described the note executed by Riley and Luddington under their own hands, and the note offered in evidence, appeared to be signed by procuration. Verdict for plaintiff — motion for a new trial. BILLS AND NOTES.— 0/ the declaration. 335 Per Car. Husmer, C. J. The plaintiffs aver that Riley and Luddington, by a note under their hands, promised to pay a cer- tain sura ; and when exhibited, the note appears to have been subscribed for Riley and Luddington, by Collins Baldwin, their attorney. Whether this constitutes a variance, is the first ques- tion made. In every declaration founded on promise, it is necessary to show the contract, and how the defendant became a party to it ; as that he made, accepted, endorsed, or delivered it. These alle- gations, however, are sufficient, although the defendant did not in fact do either of the acts himself, provided he authorises the doing of them. The pleader may set forth the fact, with literal precision ; or he may declare according to the operation of law on the contract. The averment that Riley and Luddington, un- der their hands, promised, &c. is not such a declaration on fact, that it requires proof of the act having been done by them per- sonally. It is sufficient that facts took place, which in point of law are equivalent. IS. Mack v. J. S. & J. A. Spenckr. May T. 1830. 4 Wend. N. Y. Rep. 411. S. P. Neal's exrs. v. Fisher's admr. 2 Har. & Gill's Rep. 274. Assumpsit against the defendants upon a promissory note, ^° ^^^V payable to H. B. or bearer. The declaration averred that the the defend defendants, on, &c., at, &c. made their certain note in writing, ^l^gj^'j. „Q^g'j„ and delivered the said note to one H. B. &c. writing, &c. IS sustained The plaintiff produced a note of the defendants, signed by proof of by J. S. Spencer, one of the defendants, and offered to show ^^Jre^^f one the defendants were reputed partners. The defendants objected partner, , . . n • without an to the evidence of partnersnip, because there was no allegation avermentof of partnership in the declaration, and the Judge sustained the Partnership objection. Plaintiff nonsuited, with leave to move to set it aside. Per Cur. Saimge C. J. It is usual to state in the declaration that the defendants were partners, or that they made the note by the name, style, or description of their firm. But I am inclined to think there is no variance between the proof and the declara- tion, the note being stated according to its legal effect. 19. Pease, et al. v. Morgan. Feb. T, 1811. 7 Johns. N. Y. Rep. p. 467. In Error. Morgan declared, in the court below, against J. & ment that. 336 BILLS AND NOTES.— 0/ thz declaration. the defend Q^ Pease, for that -whereas the said J. & G. made their note in ant "made ■ ■ cc r • 7 ' the note, writing, '■'■ their own proper hands ana names being thereunto suh- proper" scribed.'' The proof was, that only one of the defendants, G. hands and Pease, signed the note. names be _, ,, rr>i • ^ \ ^ • ^ jngiheieim -» 6'* tur. there was no averment in the declaration, that the ed^'"ls^not '^lefendants were partners, or acted under the firm of J. & G. sustained Pease, but the declaration is, that the defendants made the note, tlie m?te be " their own proper hands and names being thereunto subscribed,'' ingmade g^d the proof was, that only G. signed the note. This M-as not by one of . ■* ^ j e^ the defend Sufficient to prove the contract as laid. There is no case, or pre- oufaver^ Cedent to warrant such proof, applied to such a declaration.* ring they were part 20. ners. Tte President and Directors of the Manhattan Com- pany V. Ledyard, et al. Aug. T. 1803. 1 Caine's N. Y. Rep. 191. An emiorse This was an action by the plaintiffs, as endorsees against the mcnt in the * Where the declaration against the drawers of a bill of exchange, stated that the defendants made the bill, their own proper hands being thereunto subscribed, and the bill produced in evidence, was drawn in the name of Marsfe Co. It was objected, that this was a fatal variance. It would have been enough, it was said by the counsel, if the declaration had alleged that the defendants drew the bill, according to the custom of merchants, or it might have added, "by the style and firm of Mars & Co." or " the style and firm of Mars & Co. being thereunto subscribed;" but to support the declaration as actually framed, it would be necessary to produce a bill, signed by both the defendants, as drawers. Bills must be so drawn, if there are two drawers who are not in copartnership, and the bill declared upon must be taken to be of this description. Lord Ellenborough, although he expressed some doubt on the subject, refused to nonsuit the plaintiffs ; Jones, elal.v. Mars, el al. 2 Campb. 305. But where a bill was endorsed by procuration, it was held that a bill so endorsed, was not evidence under the averment that the defendant endorsed it liis own hand writing being thereunto subscribed ; Levy v. Wilson, 5 Esp. 180. So where the declaration was that the defendants made their note, under their hands, and the note produced, was signed by one for himself, and as agent for the other, Sedgwick, J. held that the variance was fatal ; Gardner v. Storer, Chitty on Bills, Story's Ed. 545. n. It seems, however, that the signature of a party, made by a third person, by his authorit}', will support the allegation, that his own proper hand was thereunto subscribed ; Helmsley v. Loader, 2 Campb. 450. And where the declaration alleges generally that the defendant accepted the bill according to the usage and custom of merchants, an acceptance by an authorized agent, thus : "For A. B. & Co. C. D." is sufScient'evidence ; Hays v. Haseltine, et al. 2 Campb. 601. The allegation that the parties hand writing was thereunto subscribed, is unneces- sary, and it is most advisable, always to omit it ; Chit, on Bills, 322. n. (e); 2 Camp. 451. n. A note expressed in tlic singular number : I promise to pay, but subscribed by one of the^ pailner* in the name of the firm; Doty v. Bates & Handy, 11 Johns. Rep, 544. or signed by the partner, A.,|^in his own name, prefixing " for A. B. & Co." is binding the firm ; Lord Galway v. IMathew &. Smithson, 1 Camp. 403. Where a bond was'declared on as the joint bond of the defendant and two others : Darnpier, J. held it was no variance; that the bond was likewise the separate bond of each of the obligors; Middleton v. Sandford, 4 Campb. 34. BILLS AND NOTES.— 0/ the declaration. 337 defendants, as endorsers of a promissory note, made by Brown, J^Jf^y^^* Talbot & Co. to the defendants, and endorsed by them to the partner, plaintiffs. The declaration averred, that J. Brown, W. Talbot ^.j^^J^j^^j^j^g and J. Gore, acting tinder the firm of Brown, Talbot & Co., be- a^e endorsb ing thereunto subscribed; and that the defendants being part- firm, ners, under the firm of A. Ledyard & Co. endorsed the said note in writing, the proper name and style of the said firm of A. Ledyard &. Co., being thereunto subscribed. The evidence on the trial was, that Brown, one of the makers, subscribed the note by the partnership firm, and that A. Ledyard, one of the firm of A. Ledyard & Co. endorsed the same with the name of that firm. The question was, jvhether the evidence supported the declaration. Per Cur. Raddiffe, J. We have no doubt that the aver- ments were suflSciently supported by this evidence. It was not necessary to set forth, that one of the partners of each of the firms, made and endorsed the note in the name, or style of the respective partnerships.* Vide Kane v. Scofield, 2 Cainc's Rep. 367. 21. Parsons v. Parsons, et al. May T. 1826. 5 Cowen's N. Y. Rep. 476. The declaration in this case stated^ that the note was endors- ed on the ^ay of its date, but it was proved that it had been en- tiff may'de dorsed to the plaintiff two years after its date. clarejhat T Vt-.! • 1 1 1 • ^" endorse Per Cur. Wooaworth^ J. The variance between the declaration mentis and the proof is not material. The plaintifFmay declare that an li^jg^'datrof endorsement is made on the date of a note, although it is made a note, al r, 1 though afterwards. made after wards. 22. Russell v. Whipple. Feb. T. 1824. 2 Cowen's N. Y. Rep. p. 536. The plaintiff declared upon a promissory note, made by the enough to defendant, but did not aver that the note had been delivered. allege that -^ , , . . . . ■■ , the defend Per Cur. In declaring on a promissory note, it is enough to ant made alleare that the defendant made his certain note in writing, &c. '^^^/^^■^^'^^". o _ "' note in wri without averring that he delivered it. ting, &c. without a * The endorsee's title arises from the endorsement, and he]must prove the bill or ^^ delivered note was transferred to him, by producing evidence of the endorser's iiand writing, it. And if tliere be several endorsements set out in the declaration, tliey must all be proved ; Bosanquet v. Anderson, 6 Esp. 43. But if they be not set out in the decla- ration, which is the preferable course, proof of the first endorsement, without the intermediate ones, is sufficient; 4 Petersdorff 's Abr. 549. And the endorsements Vol. II. ' 43 338 BILLS AND NOTES.— 0/ the declaration. 23. Sthephens v. Graham. Jan. T. 18?,2. 7 Sergt. & Rawle's Pa. Rep. p. 505. Proof of ft In error. note dated a • • the26ih Jissumpstt on a promissory note, the declaration, which con- Buppo"rt^a Gained but one count, stated the note to have been drawn on the declfiration 26th of July, the note adduced in evidence, was altered to the note dated 26th, its Original date being admitted by the plaintiffs, to be the onthe25lh.05thof July. Per Cur. Duncan., J. Af ter noticing other points in the cause, said : but at all events, as the note was set out, as dated on the 26th, proof of its being ofl the 25th, did not support the declaration.* 24. Fay v. Gaulding, et al. Oct. T. 1830. 10 Pickg. Mass. Rep. p. 122. Apayee Assumpsit ovl a promissory note, alleged to be payable to the Clare on a plaintiff, 0?" /iw order. bletohim P^^' Cur. As the action is brought by the payee, this is not selforordera material variance. If the plaintiff were an endorsee, it would as payable ^ ' to himself have been necessary to allege that the note w^as payable to the payee, or his order. Vide Barrier e v. JVairac, 2 Ball. Rep, 249 ; Sebree t. Dorr, 9 Wheat. 558; Jones v. Falcs, 4 Mass. Rep. 245, nuistbe proved, notwithstanding tlicy were on the bill at the time of the acceptance; Smitli V. Chester, 1 T. R. 654. And in an action by the endorsee againstthe accep- tor, Lord Kenyon held, that the hand writing of the first endorser must be proved, though he be tb.e drawer; jM'Piierson v. ThoA'tes, Peak. 20. And the endorser himself is a good witness to prove his signature; Richardson v. Allan, 2 Stark. 334. •■*■ ^Vhcre the bill or note is stated in. the declaration to have been made on a par- ticular day, tlte date must be correctly stated, or the variance will be fatal ; Anon. 1 Campb. 308 ; Stafford v. Forcer, 1 Stra. 22. But not where it is averred the bill was drawn on a particular day, not stating it to be the date 6f the bill ; Goxon v. Lyon, 2 Campb. 307. And tJic date may be omitted altogether in the declaration; Giles V. Boune, 2 Chitty's Rep. 300. Fide 4 Petersdorff 's Abr. 509, where it is ob- served, that if a bill or note by mistake, be dated contrary to the intention of the parties, the declaration may run thus : " on &;c., the time intended at, &c., made* &c., bearing date by mistake, on, &c., but meant and intended by the said A. B. and C. D., to be dated on the said, fcc, and then and there delivered. See, by which eaid note, he the said C. D. then and there promised to pay two months after date thereof, that is to say, after the said, &:c., when the said note was so made and in- tended to be dated as aforesaid, to the said A. B. &;c. And a statement in the dec- laration that a bill was drawn on the 1st of July, payable on a future day, and aver- ringthat afterwards, to wit, on the same day,'paymeht was demanded, is good on gen- eral demurrer ; Fenton v. Goundry, 13 East. 458. But where tlie declaration stated BILLS AND NOTES.— 0/ th^ evidence. 339 25. . - Baker V. Briggs. March T. 18?9. 8 PIckg. Mass. Rep. 122. Assumpsit against the defendant on a promissory note in the a surety to - n -. , ' a note mar following words : be declared "Boston, Aug. 1 18^5. ^f-^or.' For value received, I promise to pay Horace Baker, or order, the sum of one hundred and sixtj'- dollars, [in six months from date, with interest. ' ' ISAAC RYAN." On the back of the note vras written, " Otis Briggs. " The judge instructed the jury, that although Briggs, by the form of the contract, was properly declared against, and was li- able as maker of the note, yet it was evident that the debt was Ryan's; and Briggs was so^far to be considered as surety, as to be entitled to any defence whic^i might grow out of that rela- tion. Verdict for the defendant. Motion for a new trial. Per Cur. Parker^ C. J. The note was made by Ryan, to the plaintiff, and the name of the defendant written on the back. Supposing this was done when the note was made, (and there was no evidence to the contrary,) according to several decisions, it was right to declare against him, as promissor ; but still he stood in the relation to Ryan, as surety, and was entitled to any advantages, belonging to that character, as he would if his name had been put on the face of the note, when he might prove that he was only surety ; and if the creditor had done any act, that could in law dischai-ge a surety, he might prove that, in his de- fence. XVIL OF THE EVIDENCE. (A) Plaintiff's evidence.* the last instalment to be payable on the 4th of June, when it appeared to bo paya- ble on the 24th, held a fatal variance ; Wells v. Girling, 8 Taun. 737. And a note made in a foreign country, ma)' be declared on as made in England ; Kearney v. King, 2 B. & A. 301 ; Sprowl v. Legge, 1 B. & C. 16; Carter v. Dowrisb, Carth. 83. * The plaintiff must produce the note, and it must correspond witli the averment in the declaration^; and the signature of the defendant or his authorised agent must be proved, and his identity. The acceptance of the bill, or making of tlie note must be proved by showing, that the signature of the bill or note is in the defendant's hand writing ; 4 PetersdorfF's Abr. 536. And if there be a subscribing witness ha must be called ; and even when he becomes incapacitated, his hand writing must be proved ; Binkley v. Smith, 2 Esp. 697 ; Powell v. Ford, Stark. Rep. 164. And if a bill be accepted, or a note made by several persons, proof of the signature of each is indispensible, and if itbessigned by one in the finame of the firm, the plaintiff must prove they are partners ; 4 PetersdorfF 's Abr. p. 337. Where the defendant 340 BILLS AND NOTES.— 0/ the plaintiff's evidmce. Wardell, et al. y. Howell. May T. 1832. 9 Wend. N. Y. Rep. 170, S. P. WooDHULL v. Holmes. 10 Johns. Rep. 231; Skelding, et al. v. Warren. 15 Johns. Rep. 270; Ep.own v. Tabor. 5 Vv^end. 566 ; Valletv. Parker, 6 Wend. 615 ; Coddington v. Bay. 20 Johns. Rep, 637. A plaintiff Assumpsit by the plaintiffs, as endorsees against the defend- coverona ant, as endorser of a promissory note. The note was endorsed note frauduby the payees, for the accommodation of the drawers, and was verted from made and endorsed for the purpose of taking up a previous note destination ^^ ^^^^ Bank of Canandaigua, made and endorsed by the same by the mak parties, for the accommodation of the drawers. Hughes, one an'accom of the drawers of the ntite, being sued by the plaintiffs for a modaiion jg^^^ Yiq owed them, endorsed to tliem the note, instead of ap- endorser, ... without plying in taking up the note at the bank. received it P^r Cur. Sutherlcmd^ J. This note has not answered the ob- bonafide, in jg^j. £qj. -^v}^jt;ji [^ -^y^s endorsed by the defendant : it was not in- the orduia J ' J ' ry course of tended for the benefit of the makers, generally, but for the spe- fora'vaiua ^^'^^ purpose of being substituted for, and enabling the makers ble consider to take up another note, which the defendant had endorsed to ation. them. Where a note has been diverted from its original desti- nation, and fraud'dently put in circulation by the maker, the hol- der cannot recover upon it, against an accommodation endorser, without showing he received it in good faith, in the ordinary course of trade, and paid for it, a valuable consideration. Bank of Rochester v. Bowen, et al. May T. 1831. 7 Wend. N. Y, Rep, 158, S. P. Dole v. Halsey. 16 Johns. Rep. p. 34; Foot V, Sarin. 19 Johns. Rep. 154; Laverty V. Burr. 1 Wend. Rep. 529 ; Robinson v. Smith. 18 Johns. Rep, 459, Nor a note Assumpsit hy the payees, against the makers. The note was by a bank, signed by Bowen, and others, and the name of the firm of "Al- havinga dj-jch & Searl," vras subscribed to the note, by Aldrich, one ol partnership ' ' J ' name sub the firm. The note was made to obtain a loan at the bank of by one part Ilochester, for the benefit of Bowen, which was known to the suffers judgment by default, tlio acceptance need not be proved ; Greene v. Hearne, 3 T. R. 301 ; Snowden v, Thomas, 2 Black. 748. An acknowledgement of the par- ty's hand writing, pending a treaty of compromise, is proper evidence ; Walbridge V. Kewnison, 1 Esp. 143 ; and he cannot afterwards set up the defence of forgery ; Lfiach V. Buchanan, 4 Esp. 226 ; Cooper v. Le Blank, 2 Stra. 1051. quent ralifi BILLS AND NOTES.— 0/ the •plaintiff ' s evidence. 341 cashier. There was no evidence of any authority from Searl to ner, a sure ■' "i ~ty canii.ot Aldrich, to subscribe the partnership name to the note, or ot bcenforced any subsequent ratification by him. fifm"unless Per Cur. JVclson., J. The rule protecting partnership prop- ^h^pj^^^'^ erty from appropriation to the payment of private debts of one the consent of the partners, and prohibiting partnership security from being p^j{',^g°'^o" pledo-ed to third persons, without the consent of all the partners, ^subse is just and salutary, and should be strictly enforced. The case cation imposes upon the plaintiffs the burden of proving affirmatively that either Aldrich and Searl were interested in the loan, or that Searl consented to become security for the same. 3. Oliver v. JMunday. 2 Penn. Rep. 982. Per Cur. The endorsee, in order to hold the endorser, must So plaintiff, 3s endorsee prove a demand on the maker of the notice; his refusal to pay, to hold the' and notice to the endorser, notwithstandino; the reputed insol- *^"'^"'"®^''' ' ^ ^ must provQ vency of the maker of the note. a demand on the mak ' . er, his rcfus 4* al to pay, and notice Coyle's exrs. v. Satterwaite, admr. Fall T. 1826. 4 Mon-iotheen , Tr T> 1 -» 4 dorser. roe's Ky. Rep. 124. Held by the Court, Mills., J., that the holder of an order, for ^ut not up the payment of money, is not required to produce evidence of due diligence, and give notice of the nbn payment. The action not being on the dishonoured and unpaid order, as in case of bills but on the original consideration. RiKER V. CoRBY. 2 Penn. Rep. 911. Per Cur. The endorsee in an action against the maker of a So in an ac note, must, on the trial, produce the note with the actual as- jj'g"^^!^^"^ sio-nment written on it; an endorsement in blank will not be^^ustpro duce the sufficient. - note with the assign n ment on it. Keplinger v. Griffith. June T. 1830. 2 Gill & Johns. Md. Rep. 296. Assumpsit on d. promissory note, by the second endorsee. But an offer against the maker, payable four months afterdate. The note Jljo/g^j^* was in these words : goods by the maker, $188.87 1-2 Baltimore, March 10, 1819. Four months after precludes date, I promise to pay to John Kiems, or order, the sum of one (yQf"t^"^^' 342 BILLS AND NOTES.— 0/ t/ie plaintiff's evidence. plaintiff's hundred and eie-hty eight dollars and eighty seven cents, for A'al- proving his o j o o ^ ■> signature, ue received. SAMUEL KEPLINGER." prevbufen (Endorsed.) " Pay the contents to C. E. Chevalier, or or- dorscrinander. JOHN KIEMS." the note. " P<>y the contents to Caleb Griffith, or order. C. E. CHEVALIER." The plaintiff offered a witness, who proved at the trial, -that he called several tiroes upon the defendant, and was offered pay- ment of the note in goods, which he refused to accept. After- wards defendant said he could not pay the note then, he must see Mr. Chevalier on the subject. Motion for a nonsuit on the ground that the making of the note and the endorsements had not been proved. Per Cur. Buchanan^ C. J. The suit was against the appel- lant, as maker of the note, the execution of which, was a mat, ter within his own knowledge ; and surely his offer to pay it, when called upon after it became due, was sufficient evidence of his signature, a sufficient admission that he was the maker of it. The several endorsements, by which it came to ttf. hands of the appellee, being set out in the declaration, it became necessary at the trial to prove them, and as it is not to be supposed that the appellant would have paid it to any one, whom he did not know to be entitled to receive it, his offer to pay it to the agent of the appellee, was a sufficient admission of the endorsements, and of the appellee's right to receive it. It amounted to an admission, that every thing had been done, necessary to the appellee's right to receive it, and there was no objection to his paying the note, and superseded the necessity for further proof. Vide Sidney and another v. Chambers, 2 Sergt. & Rawle, 410. Judgment affirmed. 7. WiLBER V. Turner. Oct. T. 1827. 5 Pickg. Mass. Rep. 526. So the plain Assumpsit by the plaintiff as bearer of a promissory note, erof anote ^^^ plaintiff produced the note, with the name of Godfrey en- payable to dorsed in blank. The defendant objected to reading; the note, bearer, and ■ i t i • • n ^ i endorsed by Without hrst proving the hand writing ot the endorser. prove the Held by the Court, that it was not necessary for the plaintiff signature to prove the hand writing; of the endorser. of the en ^ ° dorser. 8. Slaymaker v. Gundabacker. June T. 1823. 10 Sergt. & Rawle's Penn. Rep. 75. But the T-v 1 1 1 1 • • /v plaintiff in Debt by the plaintiff, as maker of a promissory note against BILLS AND NOTES.— 0/ the plaintiff's evidence. 343 tion a an en the defendant as endorser. The plaintiff and defendant, -who ^".^^^^"^ ■•■ . ' eainst a were directors of a turnpike company, applied to the Farmers dorser can Bank, of Lancaster, for a loan, for which they gave a note, sign- |J°^j|J^^^jQj|g ed by the plaintiff as maker, and the defendant and others as of other en ] ,, . . icji- J. dorsers,that endorsers. Another note was given in renewal oi this note, the parties which was protested and paid by the plaintiff. And this suit l^^f ^S''eed ■I t J r _ to be mutu was commenced, to compel the defendant to pay his portion ofallyrespon the note. And the question was, whether the declarations of ,^Q^g^^ '^' the other endorsers, that the parties had agreed to be mutually responsible for the amount of the note, could be given in evi- dence. Held by the Court, Tilghman, C. J., that the evidence could not be received, nor could the evidence of one of the endorsers that the parties were bound in honour to each other to pay the note, be received. 9. Barnes v. Ball, et. al. Sept. T. 1804. 1 Mass. Rep. 73. S. P. Rice v. Stearns. 3 Mass, Rep. 225. This action was brousfht by the plaintiff, as endorsee of a note ^"'^ iHe evi t3 .' ^ '_ dence of an purporting to be made by the defendant's intestate. The defen- endorser is dants denied the signature of the note by their intestate. The ^^ p^Q^,g ^^'g counsel for the plaintiff moved that the endorser might be sworn signature of . 1.1 ^^"6 promis as a witness, to prove that the intestate actually executed the or, if he be note, he having a release from the plaintiff, which was produc- [ifg^g^'^jljj^^ ed. The defendant's counsel admitted the execution of the re- see. lease, but objected to the endorser as a witness ; alleging the re- lease was given for the purpose of making the endorser a wit- nesr-, and that the endorser was the real plaintiff, and that the action was brought to recover the money for his use. The plaintiff then executed a new release in Court. Per Cur. Thatcher^ J. The release now executed must ope- rate as a complete legal discharge, and both in principle and practice, made him a competent witness. 10. Williams V. Mathews. Aug. T. 1824. 3 Cowen's N. Y. Rep. p. 352. Assxunpsit by the endorsee of a promissory note, against the So the evi J ^ -^ ^ J ' a dence of a endorser. blnnkendor The plaintiff proved the execution of the note by the makers, to'chaf4° and then offered the evidence of one W., endorsee of the note, the endors in blank, who sold it to the plaintiff, which was rejected by the Court. 344 BILLS AND ISiOTES.— Of the plaintiff's evidence. Per Cur. Woodworth, J. The evidence of W. ought to have been received. One who held a note, endorsed in blank, and sold it to another, without endorsing it, is, after the execution of the note is proved, a competent witness for the holder, in an ac- tion by him against the endorser. 11. Day, et al. v. Lyon. June T. J823. 6 Har. & Johns. Md. Rep. 140. bvTie en°" ^^^^ ^J ^^^ Court, Borseij, J., that, in an action on a prom- dorseea issory note against the endorser the plaintiff cannot recover endorser, without proving that the payer made the note payable to the proof of the payee, that it was endorsed to the plaintiff, that a demand of making of ^ •' i /. i T i ■, • ^ ^ the note, de payment was made of the payer on the day on w'hich the note navment became due, and that due notice of the non payment w^as given and notice to the endorser. are itidis pensible. 12. Dodge, et al. v. The Bank or Kentucky. Fall T. 1820. 2 Marshall's Ky. Rep. 610. Otherwise Debt on a promissory note, against Dodge, and others, and in Ken endorsed to the plaintiffs. tucky. Per Cur. Millsy J. This note is placed on the footing of bills of exchange, and in every respect the endorsee and endors- er, must stand in the same relation. Now, it is well settled, that where an endorsee may sue an endorser of such bill, he may declare on the endorsement of the bill only, and need not state any consideration to have passed. That is presumed from the fact of endorsement. In such case the action is founded upon he endorsement, as much so as in the case of a suit against the maker of a promissory note. The endorsement is the essential fact, on which the suit is founded. It is true the engagement is a contingent one, and therefore the plaintiff, in such cases, may be held to prove other facts, to show the contingency has hap- pened, by which the defendant has become liable, such as the presentment of protest of the bill, and reasonable notice to the defendant ; but this cannot materially alter the case. A prom- issory note may be drawn payable on not only one, but many- contingencies, and a plaintiff on such note, may be compelled to prove that all these contingencies have happened, before he can recover. But would it be fair to contend, that because the plaintiff was bound to prove these contingencies, in addition to the note, before he could recover, the note could not be within BILLS AND NOTES,— 0/ the plaintiff's evidence. 345 the act, and must itself be proved? certainly not. It is therefore conceived by the Court, that the endorsement of the appel- lants, is a writing on which the action against them is founded, within the meaning of the act, and that the appellees having de- clared upon it, and not upon an existing debt, or duty, of which they could adduce the endorsement as evidence, or other proof, even by parol, the appellants ought not to have been permitted to require proof thereof, unless their plea had been supported by affidavit, as the statute required. 13. Wilbur v. Selden. Aug. T. 1826. 6 Cowen's N. Y. Rep. 162. S. P. 20 Johns. Rep. 172-3, and the cases there cited. Assumpsit by the endorsee, against the endorsers. Per Cur. Savage, C. J. The register of a deceased notary, But the reg is not evidence of a demand and notice, on a promissory note, '^^®^°/^'^® ' . . ceased nota where the entries were made by his clerk, who is still alive, ly, is not ev though he be out of the jurisdiction of the court, and cannot be uiand^nd found on diligrent enquiry. notice, ° '■ •' where the entries ] 4. were made by his clerk. Nichols, et al. v. Goldsmith. May T. 1831. 7 Wend. N. Y. Rep. 161. S. P. Halliday V. Martinet. 20 Johns. Rep. 172; Welsh v. Barret. 15 Mass. Rep. 380. Per Cur. Savage, C. J. It has been decided in this court, that a written the written memorandum, made by a notary, who died before the ^u^"?'^^^" trial, may be given in evidence, to prove demand and notice of non payment. What a man has done, and committed to writing, when under obligation to do the act, it being in the course of the business he has undertaken, and he being dead, there seems to be no danger of submitting it to the consideration of the 15. Bank of Kentucky v. Pursley. Spring T. 1826. 3 Monroe's Ky. Rep. p. 240. Held by the Court, Ousley, J., that parol evidence is compe- And thepro tent, under the act of the legislature of Kentucky, to prove that p,.q\,^J^^ ^* a protest of a bill in that state, certified under the private seal of parol, the notary, was in fact made, and by a notary. The act does not require a seal. Vol. II. 44 346 BILL^ AND NOTES.— 0/ the plaintifs evidence. 16. Farmi:iis' Bank of Lancaster v. Whitehall. June T. iS-27. 16 Sergt. & Rawle's Penn. Rep. 89. S. P. Nicii oLAs v. Webb. 8 Wheat. U. S. Rep. 326, Welsh v. Barrett. 15 Mass. Eep. 380; Smith v. Lane. 12 S. & R. 87. Butanex Jis s iniij:! si t ^gn'mst Vne defendant as endorser, vkoftfno^ The question was, whether the affidavit of the nolar;y's clerk, tary clerk, who had deceased, of the due service of the notice was proper cannot be ^- i given in ev 6\luence. idence. Dunca77, J. The affidavit of the deceased clerk could be merely hearsay evidence, which cannot be admitted. But to a certain extent this rule has been relaxed, and on the very subject of protest ; for it has been recently settled, that the memorandums made at the time, by a person in the ordinary course of business, of acts and matters, which his duty in such business required him to do for others, are admissible evidence of the acts and matters so done after his death. Vide The Philadelphia Bank v. Officer's Exrs. 12 S. fy K 49. 17. Baxter, et al. v. Graves. Fall T. 1810. 2 Marshall's Ky. p. 152. The law Assumpsit on a protested bill of exchang-e, drawn by Baxter presumes . . • -r-. • i tt-h ° '' funds in the in his lavour, on a certain David Hill. drawee, ^\\e Court instructed the jury, that ng notice was necessary and the i^ this case, no funds beins; proved to be in the hands of the onus of ' . or showing drawee. Verdict for plaintiff. Error to this Court. none lies up Per CuT. Ousleij, J. Whether in an action against the draw- on the ho:d gj., notice to him of the protest, should be proved, turns exclu- sively upon the question, whether or not, the drawee has funds of the drawer in his hands — but the law presumes the maker of a bill always has funds in the drawee's hands. The holder of the bill should prove that the person insisting on the want of it, sustained no damage. 18. Pon's exrs. v. Kelly. April T. 1798. 2 Haywood's N. Ca, Rep. 45. tancemei^ -^^^^ ^J ^he Court, that the acceptance of a bill of exchange Ifeiice^of ^^^^ evidence, and full proof that the drawer has effects in the funds. hands of the drawee, or that he has credit upon him. note v.'o.s Jue. BILLS AND NOTES.~0/ ^Ae defendant' s evidence. 347 (B) DEFE^-DA^-T'S EVIDF.XCE. 1. Baker v. Arnold. Aug. T. 1803. 1 Caine's N. Y. Rep, 258. S. P. WooDHULL V. Holmes. 10 Johns. Rep. 231; War- ren v. Merry. 3 Mass. Rep. 37 ; Barker v. Prentiss. 6 Mass. Rep. 430; Parker v. Hanson. 7 Mass. Rep. p. 470; Webb v. Dantorth. 1 Day's Conn. Rep. 301 ; Many. Swan. 14 Johns. Rep. 270; Hulby v. Brown. 16 Johns. Rep. 70; Myers v. Palmer. 18 Johns. Rep. p. 167. Assumpsithj the endorsee, against the maker. The defendant ^^^^^ ^^^^ called the endorser to testify that the endorsement was made af- show by the •' r ^ • • eidor^er ter the note fell due, and proposed to confine their question to that the en this. ^'- At ivhat time did you endorse this notel But the judge ^'^"^'^^^^^Jg'' overruled the question as improper, upon the ground that no after the person whose name is on negotiable paper, and has given it a ji, currency^ shall be permitted to impeach it. Motion for a new trial. Fer Cur. Kent^ J. The testimony of the endorser, as to the time of the endorsement, does not, therefore, as of course, or by any direct, or necessary consequence, affect the validity of the note, or violate his plighted faith to the world. I am of opinion, that the witness offered, was competent to answer the question put. New trial granted. Skelding v. Warren. May T. 1818. 15 Johns. N. Y. Rep. p. 270. WooDHULL V. Holmes. 10 Johns. Rep. 231. Held by the Court, Spenctr, J., that a party to a negotiable instrument is inadmissible as a witness, to show it void at the time of its execution, but he is competent to testify as to facts subsequently arising, if he stands disinterested. Where the de- fence rested upon matters subsequent to the execution of the note, one of the makers is a competent witness to defeat the re- covery of the plaintiff without a release. Krumbhaar v. LuDELiNG. June T. 1815. 3 Martin's Lou. Rep. p. 640. Assumpsit by the endorsee of a bill of exchange, against the fondant drawers. "^^V ^^"^ 348 BILLS AND NOTES.— 0/ the defendant's evidence. that he Held by the Court, Mathews. J., that the drawer mio-ht show drew the / r- i • i i i ^ billasaT standing a \nssumpsit on a note, purporting to be signed by the detend- ^j'^P'-'^"'^'^ ant and ondorsed to Ihe plaintiffs. The endorsement was not admission _ _ t ofhissigna Contested, but the plaintiffs were required to prove the signature siveevi ^^ ^f the maker. The plaintiffs proved by the deposition of one der.ceiliat H., the defendant's acknowledsfment of the siffnatufe of the It !s not gen i • • i • uine. note. Notwithstanding the admission to prove the signature was not genuine, the defendant offered several witnesses who testified they were acquainted vrith his hand writing, and that in their opinion, the signature was not genuine. This^ testimo- ny was objected, to, but' admitted. The judge instructed the jurv that, notwithstanding the testimon}' of H., if they believed, from the evidence in the case, that the signature was not genu- ine, they ought to find a verdict for the defendant, which they accordingly did. Motion for a new trial. BILLS AND NOTES.— 0/ the defendanes evidence.'] 349 Per Cur. This was merely a question of evidence, of which the jury were the only competent judges. They were properly instructed by the judge, and the verdict must be conclusive. 6. Sargent v. Southgate. Oct. T. 1827. 5 Pickg. Mass. Rep. 312. S. P. O'Callaghan V Sawyer. 5 Johns. Rep. 118 ; LooMis V. PuLVER. 9 Johns. Rep. 144 ; Knapp v. Lee. 3 Pickg. 452; Field v. Nickerson. [13 Mass. Rep. 137; Hatch v. Green. 12 Mass. Rep. 197. Assumpsit by the endorsee against the maker. Plea, the gen-^° '"h^"if*^ eral issue. It appeared the note was endorsed to the plaintiff, endorsee, after due, by one Watson, the payee. The defendant gave innSkerVf^a evidence, and filed in set-off, other notes given by Watson, the "'^g^'^'^^ls payee, to him. It was objected that this evidence was improp-ed when gj._ over due, the defend Per Cur. Parker., C. J. The Court^are of opinion "the de-^"'^'"?^ fendant may avail himself of such defence, vmder the general dence a ne issue. The statute is remedial, and ought to have a liberal con- ^ole^nad truction. It was intended to prevent nominal creditors from re- to '"m by covering more than is due them by the form of the contract. Or upon pmv the defendant may give it in evidence in defence to the action !"S 'twas .,,,,., . , . 'intended as on giving evidence, that it was received in payment by theevidenceof payee. raymentof ■^ •' the note in suit. 7. Mechanics' Bank v. Hazard. Aug. T. 1816. 13 Johns. N. Y. Rep. 353. S, P. Wattles v. Laird. 9 Johns. N.-Y. Rep. 327. _, ^ A licre the Debt on recognizance of bail, entered into for one John Haz-^"'^'"'^^'"*'^ ard "", ""^^ P'^y^ the amount, Plea, that the note upon which judgment was obtained against greldbe'' the principal, was paid by one Miller, who -was an endorser up-^Tf^^'^^, ., , I ^1 ^ •. ■, , '■ holder and on the note, and that it was agreed between the holder and the endorser, endorser, that the suit against the maker should be prosecuted kef slIauTe for the benefit of (he maker. suedforthe Held by the Court, Thompson, C.J., that the maker could not threndors avail himself of the payment by the endorser, as a defence in keVt^n'^Jt the suit against him. The plaintiiTs by their agreement with 'ivail him the endorser, became mere nominal parties, an'd we have a ply me nt^ right so to consider them, and look at and protect, the real nar- ^^^ '''*' ^" 4.- „ ; • J. » ^ dorserasa ties in interest. defence. 350 BILLS AND NOTES.— 0/ the evidence. Miles v. O'Hara. Sept. T. 1814. 1 Sergl. & Rawle's Penn. Rep. 32. The draw Jissumpsit in the Court below, by the payee against drawer, may rebut In error. the pre sumption of P^r Cur. TUghman^ C. J. The drawer of a bill is presumed considera ^q ^g Ji^ble, in case af non payment by the drawee. But the drawer may rebut the presumption, by proving, that between the payee and himself there was no consideration, and that the gen- eral understanding was, that the drawer w^as merely an agent, and not to be held responsible. It is a fact for the jury, wheth- er upon the evidence, credit was given solely to the drawee, but it was not necesary that a special agreement should be proved, in order to exonerate the drawer. TiLLAu V. Britton. May T. 1827. 4 Halst. N. J. Rep. 120. Inan action Per Cur. In an action brought by the endorsee against the payable a't drawer of a promissory note, payable at a particular bank, a particular ^Yithout defalcation or discount, the defendant cannot set off a bank, the , .,,,.. defendant demand which he may have against the bank, which discounted offTde^^^ the said note, and transferred it to the plaintiff. It makes no dif- mand which fgfence in this respect, whether the note was transferred after or he may . have before its maturity. against the bank,which • discounted the note, (C) EVIDENCE UNDER THE MONEY COUNTS.* and trans ferred it to the plain 1 • tiff. Arnold v. Crane. May T. 1811. 8 Johns. Rep. 62. S. P. Cruger v. Armstrong, et al. 3 Johns. N. Y. Cas. 5 ; Smith v. Smith. 2 Johns. Rep. 235. 240; Pierce v. Crafts. 12 Johns. Rep. 90 ; Wild v. Fisher. 4 Pickg. Rep. 421. A promisso Pcr Cxir. A promissory note may be given in evidence under rynotemaythe money counts. be given in '' evidence ua Vide Hughes V. WhceUr. 8 Coicen's Rep. 77. der the mon ^ ' * "Where there is a privity between the parly suing, and being sued, the form- er may recover the consideration passing between him and the latter ; it is in such cases, therefore, prudent, and always adopted in practice, to insert counts in the declaration, applicable to such consideration ; but where there is no privity exist- ing between the plaintiff and defendant, and no express promise to pay the amount can be proved , or where the party is discharged by an alteration in the bill or note, or by the laches of the holder, the plaintiff will be precluded from recovering on BILLS AND NOTES.— 0/ th(i money counts. 351 2. Sexton v. Johnson. Oct. T. 1813. 10 Johns. N. Y. Rep 428. Per Cur. A proniissorv note, ^no consideration being stat-^^^^"^"^' r J > o state a con ed on the fare of it, cannot be given in evidence under the siderauon on the face money counts. of it. 3. Pierce v. Crafts. Jan. T. 1815. 12 Johns. N. Y. Rep. 90. Per Cur. A note payable to one, or bearer, may be given in p°^!,^ig^^Q evidence, under the money counts. bearer; Crandall v. Bradley. May T. 1S31. 7 Wend.N. Y. 311. S. P. Smith v. Smith. 2 Johns. Rep. 235; Pierce v. Crafts. 12 Johns. Rep. SO. Jissumpsit — the common money counts. Plaintiff offered in j^big"^ "^^^ evidence, a note, whereby the defendant, for value received, ijoards. promised to pay the plainliff, $8 G5 on the first of April, in common stuff pine boards. T.he admission of the note in ev- idence, was objected to, but was received by the court. Ver- dict for plaintiff. Error to this court. ' Judgment affirmed. 5- Page's admr. v. Bank of Alexandria. Feb. T. 1822. 7 Vv'heat. U. S. Rep. 35. Per Cur. Livingston., J. A bill or noie is prima Jacie evi-Sointhe dence, under a count for money had and received, against the states drawer, or endorser. Courts. 6. State Bank ^. Hurd. March T. 1815. 12 Mass. Rep. 172. Per Cur. A negotiable promissory note, endorsed to the ;5o j„ j^i^a plaintiff, by the defendant, may be given in evidence, in an ac-sachuseits. tion for money had and received. 7. BuRDicK V. Green. May T. 1820. 18 Johns. N. Y. Rep. 14. Per Cur. Where the declaration contains a special count4"!^^^l the money counts; 4 Petersdorff's Abr. 524 ; or lh.e fatal effects of a variance may be frequently avoided by t!ie iutroduction of the money counts; ibid. An ac- knowledgement of the debt, will enable the plaintiff to recover on* the money counts ; Ilighmore v. Primrose, 5 M. Sz S. 65. But where the defendant sif^ned tho note as surety, the Court held, that no recovery could be had against him on the money counts ; Wells v. Girling, 8 Taun, 737. F'ide 3 T. P>.. 182. 852 BILLS AND NOTES.— 0/ the evidence. may elect on a promissory note, and also, the common money counts, for the count on loir which to money lent, &c., and for goods sold and delivered, &c., the ^oteilrevi pl^intiiT may elect the count, on which, to give the note in ev- dence. idence. Williams V. Allen. May T. 1827.7 Cowen's N. Y. Rep. p. 316. la^irTst^Uie '^ "^^^^ plaintiff's declaration was upon a promissory note, defendant against the defendant alone. The note produced in evidence, is evidence' "^^'^^ made by the defendant, and one Rice, which was objected to, agauisttlie as incompetent evidence, under the monev counts, asrainst the defendant ^ c ■, -, ' o alone under defendant alone. counts. ^ P^^ Cur. Woodworih, J. A promissory note against the de- fendant and another, is evidence, under the money counts, against the defendant alone. He must plead the non-joinder in abatement. He cannot take advantage of it on the trial. 9. AiNSLiE v. Wilson. Oct. T. 1827. 7. Cowen's N. Y. Rep. p. 662. b'^convev*^ -Assumpsit hy the endorser, against the maker. The evidence ing land to support a count for money had and received, was payment of a money ^^^ note by the endorser, by conveying land, which was ad- count, mitted. Motion for a new trial. Per Cur. Payment of a debt by the surety or endorser, by a conveyance of land, which is received at the time, by the cred- itor, as payment, will support a count for money paid, laid out, and expended. Motion denied. 10. V/elch v.Lindo. Feb. T. 1813. 7 Cranch. U. S. Rep. 159. But an en As s U7npsit a^^'msfLindo upon his endorsement of a promisso dorscment ^^j.^ -^^ these words : "pay the within, to J. Welsh, or or " without '' ' ^ ^ A T • 1 15 recourse to der, without any recourse whatever on — A. Lmdo. the endors * «? • • er,"isnot It was Contended, that this endorsement was sufficient evi- evidence un • r • ^ j. j.i « 4. der a men deuce prima jacie^ to support the money count. ey count. Per CuT. An endorsement, "without recourse to the endors- er, " is not evidence -in an action by the endorsee, against the endorser, under a count for money had and received. BILLS AND NOTES.— 0/ parol evideyice. 353 11. Crittenden v. Hurlburt. Jan. T. 1827. 2 Aiken's Va. Rep. p. 133. The plaintiff offered in evidence, a bill of exchange, of theN<^ri9pay ^ • 1 p n mentofa following tenor, viz.: " Messrs. Giles P. Crittenden & i^o.,biii by tho please to pay Hollister & Guindon, or order, fifty pounds, Hali- J^J^^^P^J^^y^* fax currency, three days afterdate; for value received. St. ney paid to Johns, June, 21, 1817. (signed) Daniel Hurlburt." This draft [jje 5'*^e,. was accepted by the drawees, on the day of the date ; and by them paid on the 23d of the same month. No other ev- idence was offered on the part of the plaintiff. The Court in- structed the jury that the evidence was not sufficient in law to entitle the plaintiff to recover, and therefore directed a verdict for the defendant, to which decision the plaintiff excepted, and the case having been made by the parties, this Court is called upon to revise that decision. It is true as insisted by the coun- sel for the plaintiff, that the draft was proper evidence to show the money paid at the request of the defendant, and it would avail him, in case Hurlburt should attempt to enforce a claim against him. It is also true, that the acceptor is as liable to the Jiolder, upon an accommodation bill, as upon a bill where he has funds of the drawer in his hands ; but these are principles that do not bear upon the question. We are of opinion that the acceptance and payment by the drawee of a bill of exchange, is not evidence of money paid by the drawee to the use of the maker, and will not support the ac- tion of assumpsit for money paid. (D) Parol evidence. 1. Debuys. V. MoLLr.RE. Feb. T. 1825.15 Martin's Lou. Rep. p. 318. Mathews^ J. The evidence in this case shows that the de- Parol evi fendant, subsequent to the protest of the note, agreed to secure to be received the plaintiff the amount specified in it by a mortgaGie on hisprop-of tlieendor ^ . ^ •' , . ser's prom erty which for some cause or other was not executed. This agree- ise to pay. ment is equivalent to a promise to pay ; and it only remains to ascertain the legal effect of such a promise. The appellee must have known whether he was duly notified of the protest. If he were not, by promising to pay, he w^aived the advantage which such negligence would otherwise have given. But the promise itself \s prima facie evidence of due notice ; thus, if he Vol. li. 45 354 BILLS AND iNOTES.— 0/ tht evidence. did not receive regular notice, he is liable under his subsequent promise, and if such promise afford evidence of proper notice, he is then most clearly bound by his endorsement, because he never was in a situation to be discharged from the liability which it created. 2. Deland v. The Amesbury Manufacturing Company. Nov. T. 1828. 7 Pickg. Mass. Rep. 244. S. P. Webster v. Lee 5 Mass. Rep. 334; Hodges v. Hodges. 9 Mass. Bataro Rep. 320; Smith v. Whiting. 11 Mass. Rep. 445. maker of a '^^e defendant sent goods to the plaintiff, to be sold on ad- P'f '■"^^'"■y vanccs made by the plaintiff. The plaintiff sold the goods to note cannot j i i fci bcexplrtin one Ward, and took Ward's notes. \¥ard failed before the '^ \\/nce!° ^^o^^s were paid, and assigned all his goods, which assignment contained a release of all debts due to the creditors, who exe- cuted the same. The plaintiff signed the indenture. The Court permitted the plaintiff to prove that it was not his intention to discharge Ward from the payment of the note, but only of other demands he had against him. Verdict for the plaintiff. Motion for a new trial. • Per Cur. The release is absolute and unequivocal in its terms, and it cannot be explained by the parol evidence. If it was the intention of the plaintiff to except this note from the release, it should have been so expressed in the indenture. W^ard is dis- charged from the note, and that destroys the plaintiff's right of action. (E) Cojipetentcy or witnesses in general. Bank of the United States, plaintiffs in error, v. Dunn, defendant in error. Jan. T. 1832. 6 Peters, U. S. Rep. 51. S. P. Renner v. Bank of Columbia. 9 Wheat. 587 ; Houten v. Page. 1 New Hamp. Rep. 60 ; Churchill v. Suter. 4 Mass. 156. whoTsT" 'Assumpsit on fi promissory note, in these words : party to a $1000. note shall Sixty days after date, I promise to pay John O. Dunn, or or- bepermit der. One Thousand Dollars, for value received, negotiable, and ted by his ' . ' ' & 5 own autliori payable at the United States Branch Bank, in Washington. Zl^ir"^ JOHN SCOTT. (Endorsed, J. O. DUNN. OVERTON CARR. BILLS AND NOTES.— Competency of witnesses. 355 Defendant proved by Overton Carr, that Scott, the maker of the note, told him, that R. C. Weightman had pledged stock for the payment of the note, that there would be no danger in en- dorsing it, that the president of the bank informed him, that the names of two persons, residing at Washington, were re- quired as a mere form, that the witness persuaded Dunn to en- dorse it, and that he and Dunn were volunteers, and endorsed it without any consideration. To which evidence the plaintiff objected, but the court permitted it to go to the jury. Per Cur. M'^Lean, J. It is a well settled principle, tliat no man who is a party to a negotiable note, shall be permitted by his owm testimony, to invalidate it. Having given it the sanc- tion of his name, and thereby added to the value of the instru- ment, by giving it currency, he shall not be permitted to testify, that the note was given for a gambling consideration, or under any other circumstances, vrhich would destroy its validity. The note in question, was first endorsed by the defendant, to Carr, and by him negotiated with the bank. It was discounted, on the credit of the names endorsed upon the note. This is the legal presumption, that arises from the transaction. Vide D S. 8f R. 363 ; 4 V/ash. C. C. Rep. p. 480. 2. Deeringv. Sawtel. May T. 1826. 4 Greenleaf's Me. Rep. 191. S. P. Churchill v. Suter. 4 Mass. Rep. 156 ; Hartford Bank v. Barry. 17 ]\Iass. Rep. 96. Writ of entry, brought upon a morto:ao;e deed, by the as- 1'^'^ ^^°^« c^i \ • . 41 . r .u < rule not on signee ot the mortgagee, against the grantee oi the mortgagor, ly applies Plea, that the note, to secure which the mortg;ao;e Avas civen, ^,? '^*^^'°"^ ' _ ' o o ^ 7 directly up was usurious. The tenant executed a release to the mort^racj-or, on the note, who was the maker of the note, and offered to prove by him the J[j!^g|.g ^ usury. Objection, that the party to a negotiable note, could not ^^l^ereitsva ''■,.,.., ,. ,. ^ -^ " ' lidiiycomfis impeach its original validity. coliateially Objection overruled, and verdict for the tenant. in qucivion. Per Cur. Weston., J. A party to a negotiable instrument, cannot be permitted to prove it originally usurious and void. But the question now before the Court, is, whether the rule is confined to actions brought upon the note itself? We think that the rule, that a party to a negotiable instrument is not an admissible witness to impeach it, applie? not only to actions di- rectly upon the note, but to all others, where its validity comes collaterally in question ; Shaw v. Wallace, 2 Yates' Rep. 17. 356 BILLS AND NOTES— 0/ tha evidence. 3. Shamburgh v. Commagere, et al. May T. 1821. 10 Mar- tin's Lou. Rep. 18. Buttlieyap Assumpsit hx the endorsee, against the endorser. ply only to i j ? & transaciiona Porter. J. The question of the admissibility of a party, to a before he . . j i. j ^ put his sig negotiable instrument, to come in as a witness, and destroy a t'h'^^nst^" P^'P^i'j ^^ which his name has given currency, appears to be now ment, not af settled in the negative. But that rule applies to any thing that occured before he put his name to it, nat after; if the note in this case was altered subsequent to the endorsement, the endors- er never gave that note, so altered, credit ; it was a paper of a different kind, he put his name on. 4. Bank ok Montgomery, v. Walker. 9 Serfjt. & Rawle's Penn. Rep. 236. S. P. Cutting y. Shippen. 2 Bin. 165; Doe v. Stokes. 2 Hawk. N. Ca. 235; Croft v. Arthur. 3 Dess. S. Ca. Rep. 223 ; Pleasants v. Pem- beton. 2 Dall. Va. Rep. 196; M'Ferran v. Powers. 1 S. & R. 102. But the a Pg,- Q^y, ^ rule, that no man shall be permitted to impeach apply only his own deed, applies only to negotiable instruments; such as to ncgaiia bills of exchanfje, and is contrary to the principles of the com- bleinstru ^ . . ments. mon law, and was introduced through the policy of the law naerchant. • 5. Manning v.Wh¥Atland. Nov. T. 1813. 10 Mass. Rep. 102. S. P. Still y. Lynch. 2 Dall. Va. Rep. 194; Vide Al- len v. HoKiNS. 1 Day's Conn, Rep. 17 ; Deering v. Renden. 1 Hen. & Mumf. Va. Rep. 175; 2 Bin. Penn. Rep. 154 ; 2 Dess. S. C. Rep. 224. So in Mas Case,upon a note, payable to one Ward, signed by the defend- sachuoctts. ^T^i^ jjj^j ]3y Ward, endorsee to the plaintiff's testator. The de- fendant offerd Ward as a witness, to prove that the note had been unfairly sold by Ward, and that he had negotiated it, upon an usurious consideration, with the plaintiff's testator, which evidence was objected to by the plaintiff, and admitted. Per Cur. The question is, whether Ward, the promisee in the note, and the endorser of it to the plaintiff's testator, is a competent witness to prove usury between him, and his en- dorsee in the transfer ? and we are clearly of opinion, that he is not. BILLS AND NOTES.— Competency of witnesses. 357 5. Carleton v. Witcher. May T. 1830. 5 New. Hamp. Rep. p. 197. S. P. Ames v, Withington. 3 New Hamp. Rep. p. 115; Bryant v. Ritterbush. 2 New Hamp. Rep. p. 212; WooDHULL V. Holmes. 10 Johns. N. Y. Rep. p. 231 ; Skelding v. Warren. 15 Johns. Rep. 270. Per Cur. In an action against one of several makers of a coni,.a. prr)missory note, another of the makers is a competent witness for the defendant, being released by the latter, from all claim to contribution, to prove the consideration of the note to have been an illegal contract for the sale of an office. But the note cannot be impeached in the hands of the endorsee, on the ground of the illegality of the contract of the endorsement. 6. TAYLofe V. Beck. March T. 1825. 3 Randolph's Va. Rep. 316. Debt on promissory notes, executed by Taylor, and endorsed ^.°'.'^^''^ b)^ John T. and Wm. Woodford. Wm. Woodford was offered as witness to prove the note usurious, and objected to as incom- petent. Per Cur. Carr, J. (After rviewing the English and Ameri- can authorities.) Upon the best view I have been able to take of the subject, I conclude that the being an endorser of the note, did not render Wm. Woodford incompetent. Green^ J. lam of opinion that a party to a negotiable instru- ment, is a competent witness to invalidate it, if he be not in- competent for some other cause tha.n that he is a party. The. other judges concurred. But where a joint action of debt is brought against the drawer and endorsers, under the act of assembly, one of the drawers cannot render himself a competent witness, by a confession of judgment to invalidate the note. * In anantjon against one of several makers of a nole, another maker is a com- petent witness for the plaiiitifF to prove the defendant's signature ; York v, Blott, 5 M, k. S. 71. And in an action by the endorsee against the acceptor of a bill of exchange, the drawer may prove usury in the discounting of it ; R.ich v.- Toppingi 1 Esp. 177 ; But not where the bill was made for the accommodation of the draw- er; Jones V. Brooks, 4 Taun. 464. Endorses against the maker, Lord Kenyon allov/ed the endorser to prove he had paid the money to the plaintiff, for which the note was endorsed ; Chorrington v. Milnes Peak,N. P. 6. But Lord Kenyon refused to admit the endorser to disfirove the endorpce's title even where the endors- er was released ; Bukland V. Tankhard, 5 T. R. 578. 358 BILLS AND NOTES.— 0/ tU evidence. 7. RiNGOLD V. Tyson. Dec. T. 1810. 3 Har. & Johns. Md. Rep. p. 172. The payee Held by the Court, Chase, J., that the payee is a competent IS a compe . •' ' ' ' \ •' ^ \ tent witness witness to prove that the note had been paid to the plaintiff, or to prove the J 1 ^ -i • r • • i i.- note had ^^'^'- ^^ "^^'^^ given lor an usurious consideration, been paid. y^^^ Caldwell V. Bull, (note) p. 175. Abat V. RioN. April T. 1821. Martin's Lou. Rep. 465. erVf a "ot Assumpsit by the endorsee against the endorser. may prove pgj. Cur. Porter, J. The first obiection to the decision ot Its execu ... lion. the judge is, admitting the maker of the note to prove its execu- tion. On this objection there is no difficulty, as the witness was equally responsible to both plaintiff and defendant; and^as that re- sponsibility could be neither increased nor diminished by ithe event of the suit, I have not a doubt of his competency. The maker in South Carolina, unless released, is not a competent witness for the endorser, in an action against the endorser by the endorsee ; Haig v. Newton. 1 Const. Rep, S. Ca. 423; Pierce V. Butler, 14 Mass. Rep. 303. Storer V. Logan, et al. May. T. 1812. 9 Mass. Rep. p. 55. S. P. Ames v. Withington. 3 New Hamp. Rep. 115. Sothediaw Jlssumpsit by the payee, against the defendants as acceptors, of exchange The evidence to charge the defendants, was a letter by one of inanacuonthe firm, w-hich purported an absolute engagement to accept sun- ce against dry bills of exchange, to be drawn upon them, by one Weeks & or,*'isrcom ^°"- '^'^^^ defendants offered L. Weeks, one of the drawers to petent wit prove that the letter relied on as proving an acceptance, was ex- ness for the i -i -i. i ^ ^i 11 • <- ■ 1 1 lutteitoex hiDited to the payee, and he was informed that the guaranty, or P^^'[Jjj]°^'^^g undertaking to accept, &c. expressed in the letter, was to be negotiated, understood' conditionally, and depended altogether on certain shipments to the defendants, by the drawers. Weeks was ob- jected to, but admitted to testify. The case was reserved for the consideration of the court, whether Weeks was a competent witness. Per Car. Seioall, J. The drawer stands indifferent between the parties, in explaining the terms, upon which the bill was ne- gotiated by the aid of the letter of credit. Judgment on the verdict. BILLS AND NOTES.— Competaici; of vntnesses. 359 10. Scott v. M'Lellen, et al. May T. 1823. 2 Greenleaf 's Me. Rep. 199. Assumpsit hy the endorsee, against the defendants as accep-^")^^'''^^'^'''^ tors. tent witness The plaintiff offered the deposition of one B., the drawer of the ^^^.g^^^ i,^ bill, which was rejected by the iiuJo-e. Plaintiff nonsuited, ^n fciion '_ . . -^ '' J r> against the Motion to set it aside. acceptor, be Per Cur. ■Westo7i, J. The quesiion is, whether the deposi-^j^"^^^j"y^^'^ tion of B was rig-htfully rejected, upon the ground of interest, damages, in _-, ,.._p ., _ -ni Tiij iiii 1 terest and If the plaintiff prevails, B. will be liable to account to the de- cost?, if the fendants for the amount of the bill only. If they succeed, he, r^'"'7 *^^^^ •J_ _ - ' ' mg hint as drawer, will be answerable to the plaintiff, as holder, not on- should not ly for the amount of the bill, but also for charges, damages, and ^^"^^ interest. We are all of opinion, that the deposition rejected was inadmissable, upon the ground of interest. 11. Chukchill v. Suter. March T. 1808. 4 Mass. Rep. 156. S. P. Warren v. Merry. 3 Mass. Rep. 27 ; Parker v. Love JOY. 3 Mass. Rep. 565; Widgery v. Munroe. 6 Mass. Rep. 449 ; Jones v. Coolridge. 7 ]Mass. Rep. p. 199; Winter x. Saidler. 3 Johns. N. Y. Cas. 185 ; WiLKiE V, Roosevelt. 3 Johns. Cas. 206 ; Coleman V. Wire. 2 Johns. Rep. 165 ; Skelding v. Warren. 15 Johns. Rep. 270. Assumpsit by the endorsee, ao;ainst the maker. ^"' endors mi • 1111 . ers aie in The question was, whether the endorsers were competent wit- competent nesses to prove the note usurious. wunessesto ^ _ ^ prove a note Per Cur. Parsons^ C. J. Endorsers of a negotiable securl- usurious. ty are incompetent witnesses to prove it usurious. Vide Powell v. Waters, 8 Cowen's Rep. 669 ; Murray v. Judah, 6 Cowen's Rep. 484. But the assignor of a check or note, if he be discharg- ed Irom his debts under the insolvent act, subsequent to the transfer, is a competent witness for the holder ; id. But a party to a negotiable instrument, is competent to prove subsequent, which do not impeach the original legality of the instrument ; Pewell v. Hanson, 7 Mass. Rep. 470. 12. Maun v. Swan. Aug. T. 1817. 14 Johns. N. Y. Rep. p. 273. S. P. WiNTON V. Saidler. 3 Johns. Cas. 185; Cole- man V. Wise. 2 Johns. Rep. 165. Per Cur. The question in this case is, whether the endorser of dorser is an 360 BILLS AND NOTES.— 0/ th^ evidence. Swuncss ^ '^^goti^ble note can be admitted as a witness to prove it made on even where a usurious Consideration, when the plaintiff is acquainted with the is acquaint ^^^* "^ usury at the time he takes the note. As a general rule, ed wuh the it has been long established law in this state, that a party to a factofusu -11 r J " "■ ryatthe negotiable note, cannot be admitted as a witness to prove it usu- takes the ^^o^^? ^^^ there can be no sound reason for varying the rule, note. when the holder is apprised of the fact of usury. 13. Bryant v. Ritterbush. April T. 1820. 2 New Hamp. Rep. p. 212. S. P. White v. Kibling. 11 Johns. N. Y". Rep. p. 128. But the en ^ • i i • i dorserofa Jissumpsit by the endorsee, against the makers. competent 'The evidence of the endorser of the note in this case was ad- Avii.ness to mitted to prove that the note had been paid before it was endors- prove the . . ™ note paid cd to the plaintiff. dorsed it. P^r Cur. Richardson, C. J. In this case the defence is, that the endorser had received payment of this note, before it was transferred to the plaintiff, and that the plaintiff was apprised that it had been paid when he took it. But in an action by a bonajide endorsee against the maker of a note, payment to the endorser, is no defence, unless the endorsee at the time he re- ceived the note, had knowledge of the payment, or the note was discredited when he took it, by being over due. The endorser then, was not called to allege his own turpitude by proving the note, to which he had given the sanction of his name, utterly void, even in the hands of an honest purchaser, but to prove facts which could not constitute a defence against such a pur- chaser. He was, therefore, most clearly a competent witness, to prove any' fact, upon which the defence in this case was founded. Vide Ringold v Tyson^ 3 Har. §' Johns. Bep. 172 ; 6 Har. ^ Johns. 527. 14. So a second Powell v. AYaters. Dec. T. 1826. 8 Cowen's N . Y. Rep. endorser is p_ 703. in point of •' " interest a Spenccr. Senator. A second endorser of a promissory note competent . / . „ . ' i • -i i -^ r J.^ r j. • wuners for IS, in pomt of interest, an admissible witness lor the hrst, in an the first, m ^(^|Jq^ a^Taiust him by the second endorsee, his interest being an action a t> .> ' , " gainst the against the party calling him. An endorser cannot sue his en- latter by , the second dorsee. endorsee. BILLS AND NOTES.— r/ic s^im recoverable on. 361 XVIII. OF THE SUM RECOVERABLE ON A BILL OR NOTE. ' (A) Damages on. 1. Bangor Bank v. Hook. JuneT. 1827. 5 Greenleaf s Me, Rep. p. 175. • Per Cur. Weston. J. Damacres on a protested bill of ex- The object ,..,., , . 1 i r J. fi^l" which change are not given as a liquidated arbitrary mulct; but as a damages compensation to the holder for the expense of remitting the Ji-e^aliowed money to the place where the bill ought to have been paid, exchange. And therefore, if the holder receive a part of the money of the acceptor, this diminishes the damages, pro rata. Hendricks v. Franklin. Feb. T. 1S09. 4 Johns. N. Y. Rep. 119. S. P. Weldon, et al. v. Buck. 4 Johns. Rep. 144 ; Grimsi-iaw v. Bender. 6 Mass. T. Rep. 157. Assumpsit 2ig ^^at if John Merrill shall permit Charles Merrill the with a con f,.f,g ^gg Qf ^}ig \vash-room, and hop-house with himself, so long dition to oe i i , i i - i i void when as the same shall stand, then the above note to be void; other- wouSo" ^^'i^e to remain in full force. JOHN MERRILL." certamacts, 'y\^q Court of Common Pleas, before whom the action was 111 an action . ' , onthe note brought, held that the sum mentioned m the note, was to be con- ■ie^e^aii^re sidered as a penalty, and that the promisee could recover but cover but ^Jg actual damages, and the Supreme Judicial Court affirmed the his actual , . . r *u n -m damages, decision ol the Common Pleas. * The drawer of a bill is liable for the rc-exchange, or non acceptance, or non payment, even where the payment is prohibited by Ihe government of the country, on which it is drawn ; Melish v. Simeon, 2 Ilcn. Blk. 378. And if, by the terms of a note, the liolder has the option of being paid, either at the place where it was made, or according to t!ie course of exchange between that place and another, he may insist on being paid according to such course of ex- change, as exists between them at the time when the note becomes due; Pollard V. Herries. 3 B. & r. 35. But an acceptor in England, on a bill drawn in Scotland, is not liable for the re-exchango ; Napier v. Sneider, 12 EaFt.'420. And the C.J. re- ferred it to the protiionotary, the principal, interest, exchange, re-exchange, and costs ; Goldsmith, cl al. v. Taltc, et cl. 2 B. & P. 55. BlLi^b AND NOTES.— Damao-w on. 363 5. ToMBECBE Bank v. Stratton, Wintiirop, & Niles. Oct. T. 1831. 7 Wend, N. Y. Rep. 429- Jlssumpsit by the plaintiffs, as endorsees of a bill of exchange P^^y™e"t of against the deiendants as acceptors. pal and in The defendants were merchants, doing business at Mobile, "un- p,.f,\estcd* der the firm of Niles & Co., and at New York, under the firm of^i'^of^x Stratton & Winthrop. Niles & Co. of Mobile, drew bills on the surety, is branch of the house in New York, which Avere accepted by "^I'^^'f"^" ' I J action by them, and negotiated to the plaintiffs, and were protested fortheholder non-payment. One Bloodgood, being surety, paid the balance drawer for due on the bills, of principal and interest, leavino; the damages ^^^^ recove . ^ . ° . . 'y of dam unsettled, i The judge expressed an opinon that the princi-ngcs. pal and interest having been paid, an action could not be main- tained for the damao-es. c Plaintiff nonsuited, with leave to move lo set the nonsuit aside. Per Cur. J\''eIso7i^ J. The only question is, whether the pay- ment of the principal and interest, upon the three sets of bills by the surety, under the circumstances detailed in the case, ope- rates in judgment of law, to extinguish the -claim against the defendants, for the ten per cent, damages, or whether it is not to be considered as it regards them, as payment upon the general ac- count. The obligation of the surety v.'as distinct and independ- ent. Payment by him cannot be considered as payment made by their agent. The discharge of the surety in no way effects the rights of the plaintiffs against the defendants. Whatever sum the surety paid to be released, the defendants have a right to, have applied to their debt; beyond that they are not interested. The plaintiffs are entitled to recover. 6. Slacum v. Pomeroy. Feb. T. 1810 6 Mass. Rep. 121.^ Per Cur. The words of the act of Assembly of Virginia, ^'l^^j'"g'"ia are, that where a bill of exchange shall be protested, *' the dL?ays^'"' drawer or endorser shall be subject to 15 per cent, damages ^'■®^^°^*'^' thereon. 7. Graves v. Dash. April T. 1814. 12 Johns. N. Y. Rep. 17. S. Weldon v. Buck. 4 Johns. Rep. 143. Per Cur. The holder of a bill of exchange, drawn in NewInjNTevv' York, on England, and returned protested, is entitled to recover perteBt! 864 BILLS AND NOTES.— TAe sum recoverable on. the contents of the bill, at the rate of exchange, or price of bills on England, at the time of the return of the dishonoured bill, and notice thereof to the drawer, together \Yith 20 percent, damages, and interest. • 8. WiNTHROp V. Pepoon, et al. May T. 1795. 1 Bay's S. Ca. Rep. 468. In South r y-f /^ Caroluia 15 -f'er Cur. Our act of Assembly, for ascertaining damages on £fg"^';,^3 protested bills of exchange, allows 15 per cent, on all bills re- 10 percent, turned from foreign countries, beyond sea, with the difference on inland c ^ tin ^ i -n , i ,- r bijig, ot exchange, and 10 per cent, on bills returned Irom any of our sister states. 9. Brown v. Van Braam. Feb. T. 1797.3 Dall. U. S. Rep. p. 346. In Rhode Error from the Circuit Court of Rhode Island. Island 10 percent. In the argument of this case, the statute of Rhode Island, regulating the damages on bills of exchange, was referred to, ■which says, " That when any bill or bills of exchange shall be returned from any part beyond sea, duly protested for non-ac- ceptance, or non-payment, the person or persons to whom the same was (or were) payable, shall be entitled to have and re- cover of the drawer or drawers, endorser or endorsers of the bill or bills of exchange, ten per cent. damages, over and above the principal sum, for w^iich such protested bill, or bills of ex- change so protested, was or were drawn, and also law^ful inter- est from the time such bill or bills of exchange so protested, were purchased, until final judgment for the same be obtained, and also legal charges for protesting said bill or bills, with costs of suit." Vide Statutes of Rhode Island, p. 444. edit. 1798. 10. Grimshaw v. Bender, et al. Nov. T. 1809- 6 Mass. Rep. 157. S. P. Barxley, et al. v. Milchin, et al. 6 Mass. Rep. 162. , ., Assumpsit on a bill of exchange, drawm at M., in England, In Massa ' '^ ' i i i i chusetts 10 by the plaintiff, upon the defendants, and by them accepted, percent. ,j,j^^ plaintiff was a merchant of M., in England, and the defen- dants vs-ere merchants of Boston. The question was, what amount of damages ought to be assessed for the plaintiff, the bill being protested for non payment. BILLS AND }^OTES.— Damages on. 365 Per Cur. Parsons, C, J. The plaintifFin this case, is enti- tled to the money mentioned in the bill, reduced to our curren- cy at par, which together with the expenses of protest, he shall receive with Massachusetts interest, from the time the bill was payable, to the present time ; and to these items, let there be added one tenth of the bill, with the like interest on it, from the time payment of the bill was demanded of the defendants, and refused, to this time. This practice, by long \isage, has become the settled law of this state.* 11. Morris v. Tarin. Sept. T. 1785. 1 Ball. Penn. Rep. 147. The defendant bought a bill of exchange, drawn by H. &c., I" ^.""^y^ upon a house in France, which was presented and protested for per cent. non acceptance, and non payment. Without the knowledge of the second protest, the plaintiff, who was one of the partners of the firm of H., &c., paid the defendant the amount of the bill, with interest, charges, and 20 per cent, damages. f But after- wards, conceiving that he had paid the 20 per cent, damages in his own wTong he brought this action to recover back the money. Per Cur. Where a man voluntarily pays the damages on a bill of exchange, v»-ithout waiting for a protest of non payment, the money cannot be recovered back. * But t'le ab^ve rule has been changed by statute, in 182G, and bills on Europe are now settled at the current rate of exciiange and interest, and five per cent dam- ages; and if the bill be drawn upon ai^y place beyond tlie Capo of Good Hope, twenty per cent, damages. i And now in Pennsylvania, by an act of assembly, passed the COlh March, 1821, the former act is repealed, and the damages recoverable on foreign bills of ex- change, over and above the pTir.cij)al sum, charges of protest, and interest from the lime of notice of protest, and demand of principal and damages, are as follows : if drawn on persons in the United States, or territories thereof, (excepting the stato of Louisiana,) five per cent, on the principal sum ; on persons in Louisiana, or oth- er place in North America, or l!ie islands thereof, (excepting the north-west coast of Mexico,) or in any of the West India, or Bahama Islands, ten per cent. ; on per- sons in the islands, Madeira, the Canaries, the Azores, the Cape De Verd islands the Spanish Main, or Mexico, fifteen per cent, on persons in Europe, or the isl- ands thereof, twenty per cent.; on persons any in other parts of the world, twenty- five per cent. In Tennessee fifteen per cent, damages arc allowed, on protest of foreign bills ot exchange, dravrn on a person living out of ihe United States, and ton per cent, if drawn on a person living out. of t!;e state, and in the United States ; Griffith, Reg. vol. 3. p. 468. The same rule as to damages prevails in Illinois; ibid. 424. In North Carolina, the damages allowed on foreign bills, is fifteen percent. ; State Bank v. Smith, 1 Murphy's Rep. 70. In Louisiana twenty per cent, damages are allowed on foreign bills, and tcnpcrci;nt. on inland bills. In Maryland, fifteen percent, damages', arc allowed. Ohio 10-pcr cent, damages. Illinois on foreign bills 20 per 366 BILLS AND NOTES.— TAe sum, recoverable on. (B) Interest. 1. FoDEN, ET AL. Y. Sharp, et al. Feb. T. 1809. 4 Johns. N. Y. Rep. 183. S. P. Slacum v- Pomeroy 6 Cranch's Rep. 221. billSawn '^^^^ ^^^^ ^" action on a bill of exchange, drawn in England, in England and payable in London. The jury, in assessing damages, allow- and paya , . , „ ° t> 5 ble there, ^d interest, at the rate of 7 per cent. can recover •^^'' ^^^''- The bill having been drawn in England, and made only 5 per payable there, the plaintiffs were entitled to 5 per cent, interest, cent, inter *•''-»• x. ? est. ' only. A sum must, therefore, be deducted from the verdict, equal to the difference between 5 and 7 per cent, interest. ScHERMERHORN V. Pelham, ET AL. 1803. Court of Confer- ence. North Carolina. Thelawsof Action by the endorsee, against the endorser of a bill of ex- whexe'the change. Verdict for the plaintiff, subject to the opinion of the biUisdravvn Court, whether damao-esand interest, are to be calculated aeree- govern the iiii c ■ ' • damages ably to the laws of New York, where the bill was negotiated, and interest j^jj J endorsed ; or agreeably to the laws of , in the West Indies, where the bill was drawn, and where the drawer resi- ded. By the Court The question in this case, is whether the dam- ages to be recovered on a protested bill of exchange, shall be regulated by the laws of the country, where it is endorsed, in an action against an endorser. We are of opinion that damages and interest are to be assessed according to the laws of the place, where the bill was drawn. 3. Anon. 2 Haywood's N. Ca. Rep. 280. And the ' Every bill on the face of it shows in what country it is drawn, rule IS not •' . _ ■' _ _ ' effected by and that IS for the purpose of shewing, by what law it is govern- menT^^ able. Here the question is, what damages on a protest, shall be paid ; whether the damages according to the law of the coun- try, where drawn, or where endorsed. The damages should be according to the law of the country where drawn : for the as- signee stands exactly in the place of the payee, and is entitled cent, and on inland, 10 per cent. In Indiana, 15 per cent, on foreign, and 10 per cent, on inland, lo Alabama, 20 per cent, on foreign, and 10 per cent, on inland bills. In Missouri, 20 per cent, on foreign, and 10 per cent, on inland. BILLS AND '^OTE^.—hiieresion. 367 to the same measure of damages he was, and no more. It is not sound to say, that a bill may be drawn at sea, and then to ar- gue that the law uf the place where made, is not to prevail, be- cause at sea there is no law. The answer is, the law of the place which the vessel belongs to, shall prevail. Now is it con- clusive to say, that every endorsement is a new drawing, as be- tween endorser, and endorsee; for then a foreign bill endorsed here, would become an inland bill. Hastings v. Wiswall. March T. 1812. 8 Mass. Rep. p. 455. S. P. Greenleaf v. Kellogg. 3 Mass. Rep. 568; CooLEY V. Ro SE. 3 Mass. Rep. 221. .Assumpsit by the endorsee, against the endorser, on the fol- Upon a . -' '' ' o jjg[g made lowing note : payable in " For value received of Mr. J. N., I promise to pay him, or ^^[^^'^^"" f order, the sum of Three Thousand Seven Hundred and Fifty yea>s, wit,h . . , ... 1, interest an Dollars, in five years from this date, with interest annually. mially.only A, NICHOLS." simple intei est can be It appeared that the interest had been paid for the two first recovered on the jirin years. cipal sum. The plaintiff moved the court, for a direction to the clerk, that wdien making up the damages, the interest due by the terms of the note, at the end of each year, should be added to the principal, and interest be cast on the aggregate of those two suras, and so on from year to year, to the time of the judgment. Per Cur. The plaintiff might have brought his action for the interest at the expiration of each year, and by neglecting to do so, he has waived his right to compound interest. The clerk was directed to add simple interest to the principal for the time that the interest remained .unpaid. 5. CaxXnon v. Beggs. May T. 1821. 1 M'Cord's S. Ca. Consl. Rep. 3:0. Assumpsit upon the following note: "Due T. Newman, on On a note demand, Three Hundred Dollars," signed by the defendant, and demand °he endorsed to the plaintiff. The question was, when interest should pl'-^i'i/'f 's „,, . , , ^ , , . ' entitled to commence. Ihe judge charged the jury, that interest would intciest on only commence from the time of a demand made. The plaintiffll^jj"™"; J^^ moved for a new trial. mand. Per Cur. Colcock, J. There being a difference of opinion, on this subject, I have been led to investio-ate it with some dili- 368 BILLS AND "NOTES.— The sum recoverable on. gence, and the result is ,that I am confirmed in the opinion giv- en below, that the plaintiff is entitled to interest, only from the time of the demand.* 6. The admrs. of Ash v. The exrs. or Brewton. May T. So interest 179-3, 1 Bay's S. Ca. Rep. 243. onanaccep ^'^^ ^'i i" 1775, drcw an inland bill of exchange, on the de- ted bill of ceased Mr. Brewton, in favour of Ash, payable in 14 days, which exchange ,,.,, 'i^ j ' against the bill Brewton accepted; and the matter laid over as an article of thouH"i'o account between the parties till they both died. It was con- protestor tended that a protest was necessary, or a demand ought at least demand , , .,,,..„. was made, to have been proved, to entitle the plaintiti to interest. was^noTpc ^^^ ^''■^^^- ^^ ^^^ 0^ opinion, that interest ought, in this cial accept case, to be recovered from the day that the bill became payable, though no protest was made, or demand proved, where there is no special acceptance. 7. Lang v. Brainsford. May T. 1791. 1 Bay's S. Ca. Rep. 222. where'tbere ^^^' ^'^'"' Pi'o^est of a bill of exchange is essentially neces- is a special sary, in order to charge the drawer, or acceptor with interest, acceptance, ^jj^j.^ there is a special acceptance of the bill, payable at a par- ticular bankins-house. (C) Costs on. Parks v. Duke. May T. 1823. 2 M'Cord's S. Ca. Const. Rep. p. 308. The endors This was an action by the plaintiff to recover from the defen- cr of a seal •' •■'= It has usually been held on the circuits to commence from the date. Bills" and notes payable on demand, or cu a day certain, interest attaches after demand; Blaney v. Hendricks, 2 Biacii. 7G1. And where by the terms of the note, the defendant was to pay interfst on demand, the court held, that the mean- ing was from the date of the note ; Hopper v. Richmond, 1 Stark. 307. And on a note payable at four months after date, bearing interest, Li. Elkiiborough held, that the plaintift' was entitled to interest, from the date of the note ; Kennerly v. Nash, 1 Stark. 452. After a tender of what is due, no interest can be recovered ; Deut V. Dunn. 3 Campb. 296. And where the drawer offers to pay the bill the next day after he has notice of its dislionour, no interest accrues to the holder, it being with- in a reasonable time ; Walker v. Barnes, 1 Marsh. 36. And whether the holder is entitled to intcrest/is a question for the jury ; Du Bclloix v. Waterpark, Baily on Bills, 281. BILLS AND ^OTES.— Costs on. 36D dant, the amount of costs paid by him, in consequence of his J^^no^fe'^^^JJ as>iio:nment of a sealed note, made by the defendant to him on cos- s from , .^, . i u u I u I Uie drawer. •whK'h assignment he had been sued. Per Cur. Co^.cock, J. The attestation of the maker, says, un- der my hand and seaL The plaintiff was not then likely to be sued as endorser, and might have defended himself against the suit, and nonsuited the holder. It was his own fault that he had been suhjected to costs, and consequently he has no right to recover them bark from the defendant. Bolton, et. al. v. Harford, et al. June T. 1021. 10 Mar- tin's Lou. Rep. 115. S. P. PiTOT V. Faurie. 2 Martin's Rep. 83; Nugklt v. Dkhomr. 2 Martin's Rep. 383. Where the endorser of a bill of exchange was sued on the So if he bo . . r i • 1 1 ii-i* ^ sued oil non protest tor non-acceptance, in order to compel huu to give secu-^j.^.^ ^j^,,,.^ ritv, and afterwards, on the protest for non-payment, and obtain- '^fd again ed judgment. piymenlh© Held by the Court, Martin, X, that he could not recover thCcoUrtlie costs of the first suit. costs of the firs I suil. 3. Simpson v. Griffen. May T. 1812. 9 Johns. N. Y. Rep. 131. In error. GriiTen sued Simpson below, and declared for money had and Nor the en received to his use. The plaintiff below proved, that he had noiTwho^ been sued as the endorser of a note drawn bv the defendant, '^''^^^^^'^s" II 1 1 11-1 n ^ '' ed by the en and had been ebljged to pay the amount of the note, and costs dorr.ee. in of suit. dctauUof the maker, Judgment for the plaintiff for the amount. cannot com ^ ^ - pel the mak Per Cxiv. If the endorser of a note be duly fixed, he ought cr to pay • • • * lie cosLs to pay it without waiting to be sued, but if he finds it more con- venient to delay taking up the note, until he is prosecuted to judgment and execution, the drawer ought not to pay for that convenience. It is his ow^n fault or misfortune, that subjects him to costs, and he cannot resort to the drawer for indemnity against those costs. 4. Morgan v, Reintel. Feb. T. 1812. 7 Cranch's U. S. Rep. p. 273. Per Cur. A maker of a promissory note, payable to order. But the ma is under the custom of merchants, liable to refund the amount *^'^!^*'^* ir TT ^r, notepaya Vol. XL 47 370 BOND. i's Uawruf""^ the note and costs of the protest to an endorser who has been an eniiorser obliged to take up the note after protest. for the a mount of the note 5. and costs, Steele v. Sawyer. May T. 1823. 2 M'Cord's S. Ca. Rep. 450. S. P. Barnwell, v. Mitchell. 3 Conn. Rep. 101. So the ac P&r Cur. JVott^ J. The acceptor of a hill of exchange, and bilTor mak *"*^ maker of a promissory note, are not liable to an endorser er of a note for the costs which he may have incurred in consequence of de- is not uaoie ^ , » *^ lohisen.cioriault of payment by them. Vide Smith v JlPDow and Haig v. JVewtoii, 1 Cons. Rep. 277. 422; Richardson v. Presnal., I M*- Cord's Rep. 192; Gilman v. Carr, 2 Mass. Rep. 171. 4. Bangor Bank y. Hook. June T. 1727. 5 Greenleaf 's Me. Rep. p. 175. dnisGiisnot -^^^ ^"'*- Weston, J. The endorser of a bill of exchange, is liable for not liable for the costs of the suit commenced by the holder costs of a . ^ y suit, com against the acceptor ; nor for any commissions paid on the col> tTe'holde.^ lection of part of the money of him. against the acceptor. " ■ Jlontr.* I. RELATIVE TO THE EXECUTION, FORM, &c. (A) Signing, sealing, &c. of, p. 371. (B) Delivery of, p. 376.' (C) Whether joint or several, p. 379. ir. PARTIES TO, p. 383. III. CONSIDERATION OF. (A) Want of consideration, p. 384. (B) Illegality of consideration, p. 387, IV. OF THE CONDITION, p. 390. V. OF THE CONSTRUCTION OF, p. 394. * A bond, or obli2;ition is a deed whereby a person oblio'cs himself, his heirs, ex- ecutors and administrators, to pay to anot/)(;r person, a cortain sum of money on an appointed day. Tlie i>arty binding himself is called the obligor, and the obligee is the i)erson, to whom the money is to be paid, but bonds generally contain a condi- tion, that on payment of the sum mentioned thereon, or in the event of the obligor, performing a certain act on the da}' mentioned, the bond siiall be void ; and tlio obligor, in such bond subjects himself to a penalty in case the condition is not per- forn\ed ; Co. Lit. 172. a.; Cruise, Dig. 4. 99 ; 4 Petersdorff 's Abr. 589. And must be written, or printed on paper, or parchment; ibid. A bond in the eye of the lavr, is merely the acknowledgement of a debt or duty ; and it is immaterial what mode BOND. — Form and execution of. 371 VI. OF THE PRINCIPAL AND SURETIES TO A BOND, p. 398. VII. DISCHARGE OF THE PARTIES TO A BOND. (A) By the act of the parties, p. 40£. (B) By operation of law, p. 410. VIII. OF THE ASSIGNMENT, p. 420. IX. REMEDIES ON. (A) Of the action, p. 425. (B) Of the declaration, p. 437. (C) Pleas and defence, p. 442. (D) Evidence, p. 447. (E) Of the competency of a party to be a wit- ness, p. 449. X. OF THE SUM RECOVERABLE ON A BOND, p. 450. XL WHEN GIVING A BOND EXTINGUISHES THE DEBT, p. 456. I. RELATIVE TO THE EXECUTION, FORM, &c. (A) By signing, sealing, &c. Wilkes v. Washburn, et al. Oct. T. 1823. 2 Piclcg. Mass. Rep. 24. S. P. Bean V. Parker. 17 Mass. Rep. 591. ^^^^^ Debt upon an'administration bond, ap-ainst the sureties. After must beer oyer of the bond it appeared it had not been signed by the ad- ministratrix, but only by her sureties, the defendants who plead- ed that the supposed writing obligatory, was not the deed of the administratrix, and that it was not a probate bond of any kind. Judgment for the defendants. 2. Bank of Limestone v. Penick. Spring T. 1827. 5 Monroe's Ky. Rep. 25. Held by the Court, Ousley^ J., that the validity of a bond does ties to a of e:cpres«iion is used, if the language is sufficient to establish an acknouledgenieni of a debt; Thrcgmorton v. Plymouth, Comb. 87 ; Watson V. Snead, 1 Vont. 233, So a written authority to sell goods, concluding " wliich I do hereby acknowledge I owe you," was held to be a good bond ; Sawyer v. Mawgridge, 1 1 Mod. 218, Per Cur. Where the words in the bond are not sufficiently explicit, orwhera tiiere language, if construed literally, would be nonsense, we must endeavour to discover the intent of the obligor,''and be guided thereby' ; Cromwell v. Grundale 12 Mod. 194. A bond is a collateral, not a direct charge upon land, and properly speaking, it is not an iucumbi-ance on the realt}', for it does not follow the land like a recognizance and a judgment ; Barker, ei al. v. Parker, 1 T. R. 287 ; 4 Peters- dorff's Abr.600. 372 BOND. — Form and execution of, bond may ^^y^ depend upon its being: executed by the surety at the same atdiffjrciii time with the principal, times, 3. Read v. Drake. July T. 1831. 7 Wend. N. Y. Rep. 345. It mfiv be signed and Debt on bond. The bond offered in evidence by the plaintiff, tweeiitlie ^^'^'^ signed and sealed before the condition, and immediately af- pen:\l and ter I he penal part of the bond. The condition of the bond was, part of the ^o abide by the award made by arbitrators. Ihe condition was bond, xe?\.d as a part of the instrument, at the time of the execution and delivery. Per Cur. JYelson^ J. The condition was as much a part of the instrument, as if the signature had been at the foot of it. 4. Argenbkight v. Campbell, et ux. Oct. T. 1808. 3 Hen. & Mumf. Va. Rep. 144. Even where Per Cur. Under circumstances, a written instrument was de- below^ihe Chared to be a good bond, with a collateral condition, though the conditional obligor's name was not signed opposite to the seal, but between the penal part and the condition, and the name of the obligee was signed at the foot of the condition, with the seal annexed ; both signatures being attested by the same v^•itnesses. 5. M'Intire v. Funk's heirs. Fall T. 1821. 6 Little's Ky. Rep. ■P- 425. The con _ ^ tents of a Per Cur. Parol evidence of the contents of a bond, ought brrecdvcd "°^ ^° ^^ received, unless the execution of the bond was proved, until its ex or facts proved, from which its execution might be legally pre- proved. sumed. 6. Mackay, et al. v. J. & L. Bloodgood. Oct. T. 1812. 9 Johns. N. Y. Rep. 248. S. P. Ludlow v. Sinroud. 2 Caine's Cas. in err. 41. And ono ■•-> t.^ i • • • t i sealmrty Debt on an administration bond. obligors. ' '^^^- bond was in the usual form, and was subscribed by one of the defendants, with the name of the firm, and sealed with one seal, with the knowledge and consent of the other partner. Verdict for the plaintiffs, and motion for a new trial. Per Cur. One seal was sufficient, in this case, for both. It BOND. — By signing, sealing, Sfc. 373 has always been held that one piece of wax may serve for sev- eral grantors, and that another person may seal for the obligor. In the present case, one of the defendants sealed the bond, with one seal, for himself and his partner, with the consent of his partner, and after the partner had seen and opproved of the bond. Motion denied. 7. Austin v. Wkitlock. Oct. T. I8IO. 1 Mumf. Va. Rep. 487. __, , ,, ,. ., . A. rr ■ i 4. But a scroll Per Cur. A scroll annexed to a signature, is not suthcient to j^^^p^jg^] ^^ make a sealed instrument, unless it appear from some expres- i^ sig"a"'!c sion in the body of the instrument that it was intended as such, unless itap pears to Q liave been ^' sdiniended CuTTs V. United States. May T. 1812. 1 Gallis' C. C. U. S. o)-H,ein ^ ep. 69. Held by the Court, Story, J., (after a critical examination of;);,,^;;"'^^),'^,, the cases) that where the obligor innocently, or fraudulently by the obli tears off the seals of a bond, it is not thereby avoided, but an ^]p\,^p^g"fj action may be sustained upon it as a subsisting bond. 9. United States v. Spalding. June T. 1822. 2 Mason's U. S. Rep. 478. Held by the Court, Story, J., that where the seal of a bond is But the dec torn off by fraud, im;)osition, or mistake of the obligor, it still n„(,|,t j^ may be declared on as his deed, but the declaration should ron-p^*^"" ^^^ tain an averment of the facts. The old cases proceeded on too narrow grountl. i'hey have been shaken by modern decision, and the ancient rigour of them has been abated. 10. Com3ionwealth v. Hearsey. Oct. T. 1804. 1 Mass. Rep. 143. Indictment for forgery. It was alleged in the indictment, that the bond was dated the ^J'Jf^""!" 15th day of Oct., 1802. The bond produced had the same rfa/c'hccondi in the penal part, and in the usual place — at the close of the bond from condition to the instrument, immediately above the signature of ^'^^ '^j"'"*' ° part does the obligor, there was written, "given under my hand and seal, not avoid it. the 25th day of October, 1802. " It was objected to giving the bond in evidence on account of variance. It was contended that the bond was adraissable in evidence, it beinr>- dated th« 8*74 BOND. — Form and execution of. 15th day of Oct. — that the penal part of all instruments of this kind was always considered as the bond, and that it was un- necessary to show that the condition had any date. The Court were inclined to think that the indictment was right, and admitted the bond in evidence. 11. Ex PARTE, Fulton. Oct. T. 1827. 7 Cowen's N. Y. Rep. 485. Theexecu The appeal bond did not contain the name of the surety in the tion of a , . . *' bond by a body of it, but he Signed and sealed it. Motion to quash the ap- surety is i valid iho' P^^^' his name is The Court, after referring to Dobson v. Keys, Cro. Jac. 261, edinthe l^^ld the bond sufficient. Vide Williams v. Greer, 4 Hayw. body of it. 239; (Tennessee,) where the Court held, though the name of the party is not mentioned in the bond, yet if he signed and seal- ed it, he will be bound. And also Smith v. Crooker, et al. 5 Mass. T. Rep. 538, where the Court held, that a bond executed bj" one as surety, is valid, although a blank for his name is left in the body of the bond which is never filled up. 12. CoLBUR V. Dawnes. March T. 1813. 10 Mass. Rep. 20. In this case a bail bond was holden sufficient, although the boththe^ christian names of both the parties were misrecited in the bond. christian names of 23. the parlies were misre Breedlove, ET AL. V. JoHNsoN. Mav T. 1824. 14 Martin's cited Lou. Rep. 517. So where Defendant pleaded that he did not sign the bond after it had the obligor ^ ... lefthissig been drawn up, and consequently did not deliver it. be'fil'led°up -P^^' (^ur. Matthews^ J. We think the defendant ought not by the prop to be released from the obligation. It is clear that he left his cr oinccr. signature with the proper officer, for the purpose of writing over it, an instrument, such as is exhibited in the present case. He intended to be thus bound, and it is just, and according to law, that he should be held responsible .in the manner in which he consented to bind himself. 14. The Town of Montville v. Haughton. July T. 1829. 7 Conn. Rep. 543. Wadsworth v. Wendell, et al. 5 Johns. Chan. Rep. 224 ; Watson, et al. v. W^ells. 5 Const. Rep. 468. Chancery This was a bill in chancery, to obtain the correction ot a mis- a'miStaki^ take in a bond, in omitting to put a seal to the instrument. BOND. — By signing^ sealing^ ^c. 375 Per Cur. DaggetL J, The obiection is, that the plaintifFs i" a note oo '5 J ^ 7 1 _ even where have an adequate I'ernedy at law. It is one of the established a remedy powers of a court of equity to relieve against mistake and acci-^^^j^^^ dent. It is fovind by the Court, that the seal was oniitted in this case, by mere mistake and accident. If the plaintiffs might sue on this instrument at law, it does not follow, that they may not have relief in equity. Relief ought to be granted. 15. Cobb v. The Commonwealth. Fall T. 1826. 3 Monroe's Ky. Rep. 391. Per Cur. Ousley, J. It is objected, that the appeal bond is bond^need insufficient, the condition being as comprehensive, as that which not follow 11 mi 1- • 1 • • I ^^^ words IS required by the act oi assembly. 1 he condition subjoined toofthesiat the bond is not in the words of the act, nor do we think it is ne-"^^'V?/?^ ' _ licierit if It cessary that it should be. If it be as comprehensive as the act, embraces the condition to every essential purpose must be sufficient. The stance of it. substance, and not the form, should direct us in forming an opinion upon the goodness of a bond of this sort. It is sufficient that it has the same legal effect. Vide Thompson v. The Com- monwealth, 4 Monroe's Rep. p. 484, where Ousley, J. held, that a bond taken under their bastardy act, void in not pursuing the requirements of the statute, might be good at common law. 16. Supervisors of thf county of Allegany v. Van Campen, ET al. Aug. T. 1829. 3 Wend. N. Y. Rep. 48. The statute law of the state require that the bond given by ^''^^"^ o »/ cient if it the county treasurer should be that he " shall well, truly, and embraces faithfully execute and perform the duties of treasurer of said [j'fj ^^^q^JJ^^" counly, according to law." n^entsofthe rpii !• • CI 1 statute. 1 he condition of the bond was, " that the said Moses Van Campen shall well, truly, and faithfully execute and perform the duties of treasurer of said county accordins: to law." Held by the Court, Sutherland^ J. there was no materal vari- ance. There is nothing in the bon.d which is not prescribed by the statute, and it contains in substance every thing the act re- quires. Its legal effect and operation is the same, 17. Rhodes v. Vaughan. Dec. T. 1822. 2 Hawk's N. Ca. Rep. p. 167. Carolina. Held by the Court, that where an act of the legislature, pre- ("^^ ^" ^*"'** 376 ' BOND. — Form and execution of. scribes the substance of n bond, and where it is drawn to include every objection imposed by the legislature, the bond will l)e valici, notwithstanding it may be slightly variar.t from the liter- al form prescribed. ^ 18. The People, ex rcl. Goodich v. Chatauque CojMMO]!f Pleas. Aug. T- 1829. 2 Wend. Rep^eiS. mniiinof -^^^'^ ^y ^^^'^ Court, Savage^ J, that the amount of the costs, the cons, need not be stated in the recital of the judgment of the justice, in and an appeal bond, 19. The People ear rfi?. Stebbins v. Orleans Commox Pleas. May. T. 1829. 2 Wend. Rep. 292. th:.-!eirdi ° Motion for a manuamus. The Common Pleas quashed an ap- tiouofihe peal, because the bor;d omitted to state the day of the rendition jud'mifiit r ji • 1 need not be oi the judgment. appeal ^^^' ^'"'- Savagc, C. J. Let an alternative mandamus issue, bond. (B) Delivery of. I. Fay v. Richardson, et al. Oct. T. 1828. 7 Pickg. Mass. Rep. p. 91. To main Debt on an instrument purporting to be a probate bond. tion oil a The judge of probate made a decree, appointing the defendant ^"'^'*^ i" J guardian. A letter of guardianship was made out, but not de- must be do ". ^ ^ ' . livcicd. livered to him, on which the register endorsed " to be delivered to him when the bond is filed." The defendant assumed to act as guardian and continued so until his death, and the bond had never been filed. Per Cur. Parker^ C. J. We have not been able to find any principal or authority to justify us in giving validity to the bond on which this suit is brought, A bond is a deed, and delivery is essential to a doed. There are cases of a constructive delive- ry, but tl-iere is no eviilence here to bring this case to a resem- blance of them. All that appears is, that the paper was sign- ed and sealed by the principal and sureties, and was left in the hands of the principal until his death. For aught we know, it was never intended by the sureties, that it should be deliv- ered until sufficient indemity was given to them by the priu- BOND.— 5(/ delivery. 377 cipal. And it may be, that finding no bond in the probate office they have, on that account omitted to seek for security which they might otherwise have obtained. Vide Maynard v. Maynard^ 10 Mass. Rep. 466 ; Jackson v. Phipps, 12 Johns. Rep. 418. 2. Union Bank of Maryland v. Ridgey. June T. 1827 1 Har. Gill's Md. Rep. 324. S. P, Clark v. Ray. 1 Har. & Johns. 323. The Court held, that the possession of a bond at the trial by j^-,^y^ijl^ the obligee is prima facie evidence of the delivery and accept- ffired from ^ J 1 1 1 • 1 1 the posses ance of the delivery and acceptance of the bond m the ab-sion ofa sence of contrary proof, and will authorise a recovery by the ^^'^ ' obligee. 3. Folly v. Vantuyl and wife. Sept. T. 1827. 4 Halst. N. J. Rep. 153. S. P. Goodrich v. Walker. 1 Johns. Cas. 253. A delivery The obligor, after the bond had been signed and sealed, held may be by out the bond in his hand and said to the obligee '• here is your ^^'■^"g'^g'^j^jj^ bond ; what shall I do v/ith it ? " The question before the Court ingan in 1 , , . ™ . IT tent to de was, whether this was a sumcient delivery, liver. Per Cur. Ewing^ C. J. There is no precise or set form, in which a delivery must be made. A deed may be delivered by words without acts, or by acts without words, or by both words and acts. After the writing has been signed and sealed, an intent coupled with acts or words, evincing such intent, to consumate and complete it, and to part absoulutely and unconditionally with it, and the right over it is sufficient to give it a legal exist- ance as a deed. Seymore, etal. v. Van Slyck, et al. Jan. T. 1832. 8 Wend. N. Y. Rep. p. 403. Debt on a bond conditioned for the faithful discharge of the But the de duties of the office of collector of the Canal Tolls, &c. The j|,\'^^^e'pre bond bore date the first day of June, and attached to it was as"medona' d ! t( 6 rs n td CI V certificate of the sufficiency of the sureties endorsed thereon by Uian that a public officer, bearing date, the twenty-fifth day of June. bea'Js^daV.'^ Per Car. Sutherland^ J. The question in this case is, as to the time when the bond, upon which the action is founded, was delivered and accepted. The evidence adduced by the defend- Vol. li. 48 378 BOND. — Form and execution of. ants, I am inclined to think, was not suflicient to coutervail the legal presumption of the delivery of the bond on the day of its date. The practice of the canal commissioners requiring a cer- tificate from some judge of the Court of Common Pleas, of the suiticiency of the sureties in these bonds before they accepted them, Avas a mere voluntary regulation on their part, not pre- scribed by law, adopted as a matter of precaution and conven- ience, but which they might dispense v.'ith, in any given case. It would be giving undue influence to such a regulation, to permit it to decide the time of delivery of the bond v.henever its date varies from the date of the certificate. 5. Pennvman v. BARnvMORE. Feb. T. 1828. 18 Martin's Lou. Rep. 494. ilna" ^°"'^ Action on bond, given on taking oat a wx'ii of sequestration, in a suit in v.hich the present plaintiff was defendant. Per Cur. The instrument, it is said, is defective, being dated on the 9ih of Januar)-, and the petition in the cause wherein the writ of sequestration, v/as obtained was not filed until the 10th. This circumstance we consider immaterial, provided the obliga- tion was delivered, on taking out the writ. It may be shown to have been delivered another day. 6. Moss V. PtiDDLE. Feb. T. 1809. 5 Cranch'sU. S. Rep. 351. Delivery of Debt on bond. Plea, that the bond was delivered to one of a bond to one of the the plaintiffs as an c^cro't/J. Demurrer, because the bond cannot ddkeTvTo^^^ delivered to the obligee, as an escrow. ^''- Per Ctir. Marshall^ C. J. It is admitted by the counsel in this case, that a bond cannot be delivered to the obligee as an escrow. But it is contended that where there are several obligees, constituting a partnership, it may be delivered as an escrow^ to one of the firm. The Court, however, is of opinion that a de- livery to one, is a delivery to all. It can never be necessary to the delivery of a bond, that all the obligees should be convened together at the delivery. Bird, et al. Washburn, et al. Oct. T. 1830. 10 Pickg. Mass. Rep. 223. iton to^be '^^^^ ^^"^^ ^-'^ action on a bond drawn by the defendants, con- obligors ditioned to indemnify. Bird, the plaintiff, and -one Kendrick, BOND.— Whether joint or sevtral 379 for all charges incurred in ccnscquence of becoming bail forcoyp^cd ' • • •! mi 1 1 wiiU an act one J. D. Thompson, Avho was confined in jail. The bond was wlii^h puts executed in New-York and transmitted to the plaintiff, in Massa-[j;^ j;^;;.'^" chusetts and after thereceipt of it Kendrick declined becoming bail of the obli and one E. Thompson was induced to recognize in Kendrick's j„p'j J^^uv^ place, in consequence of J3ird's promising to save him harrn-'".^- less. J. D. Thompson defaulted, and Bird was held liable, and paid the whole amount of the vecagnizance. After receiv- ing the assignment of Kendrick, ^vho was named in the bond, as one of the obligees. Bird instituted Ihissuit on thehond for the recovery of the amount paid. It was contended for the defendants, that the concurrence of both the obligees, was necessary to a delivery of the bond, and that it had never been- delivered to Kendrick. Per Cur. Thestatement of facts shows, that the bond was executed by the defendants, in the state of New York, and sent to the plaintiffs, by mail. This shows a manifest intention on the part of both defendants to deliver, and such intention, coup- led with an act which puts it in the power of the obligees, is a good delive^)^ So an unconditional delivery to a third person, for the use of the obligees, is a good delivery to them, and gives efficacy to the instrument, as the deed of the obligors. 8. LovETT, ET AL. V. Adams, et al. Oct. T. 18-29. 3 Wend. N. Y. Rep. p. 380. Debt on a joint and several bond, executed by nine per- But al-.ond executed sons. byanum Held by the Court, Sava^re, C J., that where it appeared that ''"'"•''"f^,. the bond was delivered by part of the obligors, without the gors :a,d de knowledge of the others, upon terms and conditions, different pan^of '^ from those agreed upon, when the bond was executed, is not obr''^^'^ contra 11,,. , , ry to the a ligatory upon them, and that fact may be proved by one of thegreementof obligors, who is not a party to the suit. -'^^ oihers c J I J IS VOlti. (C) Whether joint or several. 1. MosER V. Libenguth, et al. March T. 1829. 1 Rawle's Penn. Rep. 255. A bond, in which the obligors declare themselves to be joint- The words ly held, ^nd firmly hovmd to the obligee, in the sum of, &c., to q/J^^J,J °"® 380 BOND. — Form and execution of . consUtute a "^^^^^^ payment they bind themselves, their heirs, executors, joint and and administrators, and evejy of them ^ is a joint, and not a several • _ • i. j t i i bond joint and several bond. Vide Besorcv. Potter^ 12 S. Sf. R. 154; Geddis v. Hawk, 10 S. S) R, 33. 2. Carter v. Carter. June T. 1807. 2 Day's Conn. Rep. 442. words° we Debt on bond. It appeared the bond was executed by sever- bind our al persons, and the oblio-atory part, was in these words: "we selves nnd • cj j ± each of us, bind ourselves, and each of us, our executors, and administra- does. tors, and each of them." Held by the Court, that this v;as a joint and several bond. 3. Brinkerhoof v. Doremus, et al. Sept. T. 1828. 5 Halst. N. J. Rep. 119. The words Held by the Court, that where the condition of the bond, was, ourselvps, " wt. A., B., C, D., E., & F., are held and firmly bound, our hens, ^j^^q q jj [^ ||^g g^jj^ of Seven Hundred Dollars, to be paid to executors, • /-. . &c several the Said G. H., or to their, or either of their heirs, executors, g'^^j [j^|,^j^^ administrators, or assigns, for wdiich payment, well and truly to be made, we bind ourselves, our heirs, executors, and admin- istrators, severally by these presents," is a several, and not a joint bond. Holm an, et al. v. Gilliam. Oct. T- 1827. 6 Rand. Va. Rep. .39. But a bond Held by the Court, that a sealed instrument, written in th lar, signed singular number, but signed and sealed by two persons, is joint by two per i i ■ • and several. sons, IS """ s^. vciai. joint and several. ^^ Geddes, et AL: V. Hawk. May T. 1823. 10 Sergt. & Rawle's Penn. Rep. 33. And " we Debt on tv/0 bonds. The defendants, Jonas & Michael Hawk, bind our bound themselves in these words : "we bind ourselves and each selves, and cachofour of our heifs, executors and administrators, &c." lieirs &,c." is a joint -Per Cur. Gibson, J, I am of opinion, these bonds are joint bonV^^*^'^' and several. Both bonds in this case are exactly alike ; and the obligors set out with an acknowledgement of indebtedness, in words which denote no intention that there should be a sev- BOND. — Whether joint and several. 381 erance of their responsibility ; but in the conclusion they use these words : " to which payment well and truly to be made, or done ; we bind ourselves, and each of our heirs, executors and administrators." Here it must be conceded, that if the word " each," were to be transposed, so as to be grammatically appli- cable to the persons of the obligors, instead of being exclusive- ly applicable to the persons of their representatives, these obli- gations would be several as well as joint. Now this word " each," must be taken as having been intended to have some operation and legal effect ; and if it can hav^ none where it stands, we are bound to suppose that this particular collocation of the words used, was purely accidental, and contrary to the real intent, and meaning of the parties. But the word can have no operation where it stands ; for it is impossible that a bond shall be joint, as to the immediate parties, and several, as to their representatives, survivorship, as respects the remedy, being an incident of every obligation, which cannot be dispensed with, even by the agreement of the parties, as the law will not suffer its forms to be violated by the introduction of new and unheard modes of proceeding. To permit the personal representatives of a deceased obligor, to be joined in an action against the sur- vivor ; or all the representatives of the immediate parties, where the immediate parties are all dead, to be sued jointly, or several- ly at. the election of the obligee, would involve the administra- tion of the law in absurdity, and endless perplexity. Such an anomaly could never be tolerated. We must then intend, that the word "each," was designed to be applicable to the persons of both obligors, wherever they are named ; and if that be so, the consequence is unavoidable, that these obligations are sev- eral as well as joint. 6. Hatfield v. Kennedy. Jan. T. 1795. 1 Bay's S. Ca. Rep. p. 501. Held by the Court, that on a joint and several bond, the obli-Theobli gee may sue either of the obligors at his election, though onefofJand of them sign his name as suretv. several bond may ^ sue either ^ • of the ob Carneal's heirs v. Day. Fall T. 1821. 6 Little's Ky. Rep. ''^°'^" p. 492. A"'^ ?" '\ ^ _ joint bond Per Cur. The right of action on a joint bond to a plurality sJ^rvf,!;;'-^ of obligees, survives in equity as well as at law. equity as at law. 382 BOND. — Form and execution of. Waters' Reps. v. Rilky's admr. June T. 1828. 2 Har. & Gill's Md. Rep. 305. And where Held by the Court, that in the case of a joint bond, the reme- the remedy jy ^^ \^^^y^ survives against the surviving obligor, but not against gone a the representatives of him, who first dies ; and where the reme- represcnta ^Y ^^ ^^^^ ^^ go"^) chancery will not revive it in the absence of tivesofa fraud; and v>'here the moral obligation to pay the debt, were not deceased ob a .^ / ligor, dian equal among the obligors. eery will not revive q * it. ^• Weaver v. Shybrook, exr. of Brotherton. Oct. T. 1820. 6 Sergt. & Rawle's Penn. Rep. 262. S. P. Harrison v; Field's exrs. 2 Wash. Rep. 136 ; Hunt v. Rousman- lER. 8 Wheat. U. S. Rep. 174; Besore v. Potter. 12 S. & R. 154. No suit, can Debt on bond. be sustain Simon Hailman and James Brotherton, gave their joint and ed against , . . ^ . ^ theexecu Several bond, to the plaintiffs in error, for a sum of money lent aTohu bond ^y ^^^cm to Hailman. Brotherton was merely security. Broth- while A. erton died, and Hailman, the surviving obligor paid part of the iointobligor fiebt and became insolvent ; and this suit was brought to recov- is living. QY of the representatives of Brotherton, the balance due on the bond, Hailman being still living. Pa- Cur. Tilghmaji, C J. I would lay it down as a rule, that in no case can recourse be had to the executor of a deceas- ed obligor, who was discharged at lav.' by death, and who was only a surety. I am clearly of opinion, that in the present case there is no ground, on which equity would decree any part of the debt to be paid by the defendant. 10. Swergart v. Burk, July T. 1822. 8 Sergt. & Rawle's Penn. Rep. 308. Held by the Court, Tilghman^ C. J., that where a bond was ,, .^. given to ten obligees iointly, seven of the number when all of Orifit ap " . . ° •', , • . . . T . pear on the them were living, could not sustain an action upon it. It is pieadin^f^s^ well settled, that if it appear upon the face of the pleadings that there are other obligees living, who have not joined in the action, it is fatal on demurrer or in arrest of judgment. 11. Roberts v. Cannington. Dec. T. 1829. 2 Hall's N. Y. Rep. By the act . . , . ^ of Congress This was a petition in behalf of the defendant in this cause, B01 c ^ _ ^ ^ js spei'.ially The Judges were clearly of opinion, that the bond in its pres- stated to be ent form was originally void as to her, and consequently all the proceedings proceedings upon it were void also. That a feme sole may be^S^'^^ther. made a sole trader, under the act of Assembly, and even in some cases by the Common Law, but then, that must always be set forth in the original contract. M'DowLL, ET ux. V. Wood, et ux. Jan. T. 1820. 2 Nott & M'Cord's S. Ca. Rep. 242. Debt on a bond given by, Mrs Wood, a sole trader. One of the ^"'^ 'V'^'"^ '-'-'' ' covert act grounds of defence was, that the obligor being a married wo- i"? as a man, could not bind herself by a deed of any kind. mavimke' Per Cur. JVott, J. By our act she is made liable to be sued ^V•''"'^'^"'■ '^ this power * All persons having a legal capacity to contract may bind themselves in a bond ; 4 PetcrsdorfT's Abr. GIO. The bond of a nianied woman is void, and neither binds her, or her husband ; ibid. So also is the bond of an idiot or a lunatic ; Yates V. Boen,2 Stra. 1104. Co is tiic bond of a person in a state of drunkeness when the bond is executed ; Cole v. Robbins, Bui. JV. Prius, 172. And the bond of an infant is void ; Russel v, Lee, 1 Lev. 86 ; Fisher v. iSIowbray, 8 East. 330. And where executors enter into bond they are personally liable; 1 T. R. 487. And one partner cannot bind his co-partner by bond unless behave express pow- er to do so, or the other partner be present at the execution and delivery of I'le deed ; Harrison v. Jackson, 7 T. R, i'07 ; Thompson v. Fierc, 10 East. 418. 384 BOND. — Consideration of. 18 limited to for any debt, which she may have contracted as sole trader, such bond 1 • 1 ' 1 1 only as re which embraces debts by bond, as well as all other debts. To jfj.g^j^^%o^g which end custom-house bonds, and bonds usually required of way coil retailers of spiritous liquors,"and other bonds immediately con- hei- business nected with her particular trade, may be indispensibly necessa- ry ; but I think this power is confined to such bonds as relate to, or are some how connected with her business as a sole trader. as n sole trader. 3. Lacy v. Garard. 1825. Ohio Cond. Rep. 231. A bond ob pg^ Cur. It seems that a penal bond obtained from a per- tained from . . ii, pi'it i -i a person in son intoxicated, by the procurement of the obligee may be avoid- void'^'^'^'^ ^^ ^^ at law, but equity will not interfere where a good defence could have been made at law^* Lacroix v. Coquet. April T. 1827. 17 Martin's Lou. Rep. S p. 527. '" According Held by the Court, that a woman cannot be a surety, the Spanish Spanish law prohibiting it. law a wo man cannot be a surety. in. CONSIDERATION OF. -• (A) Want of. 1. Lester V. Zachary. 1 N. Ca. Law Repository, 381. A bond is • n i i notinvalida 1 his was an action of debt on a bond, which was resisted on' Infninrhf ^^'^ grouttd of fraud, in obtaining the bond. Evidence of the in- \yithout con adequacy of the value of the bond w'as received by the Court. sideration or with an Per Cur. Henderson, J. In declaring that evidence of the one. inadequacy of the consideration of the bond was properly receiv- ed on the trial, it is not intended by the Court to countenance, in the most distant manner, an ilea that the bond for that cause, is invalid. The law is too well settled to the contrary, to per- mit that point to be even doubted ; for, if a bond is good with- out any consideration, inadequacy of consideration cannot vi- * Drunkencss will not be alloivcd to free a man from his contracts in general, but wlien he is so inebriated as not to be capable of distinctly perceiving and assenting to liiem, he will not be bound ; Wade v. Colvert, 2 Rep. Const. Court p. 27. Kide Can)pbcll v. Ketcham, ] Bibb 40G. And an incapacity to make a contract may ex- ist in delirium of fever, or in drunUciicss as in lunacy ; Pej'ton v. Rawlins, Hayw. 77; White V. Cox, Hayw. 82. Fk/c lit. "contracts." I BO^'D.—Wa7itof. 385 tiale it.* But where the contest is, whether the bond was ever made, or if formally made, whether under such circumstances of fraud and imposition, as to render it void in law, inadequacy of consideration may be received as a cii\:uni5tance to shew the truth of the defence. 2. Grubb V.Willis. May T. 1824. 11 Sergt. & Rawle's Penn. Rep. 107. Per Cur. Every bond imports in itself a sufficient considera- And in it • 1 ' ±^ Ai • j^ 1 self imports tion, though none IS mentioned, nor is there any thing to show a considera there was an illegal consideration, therefore the bond is good. ^^*^"- Carneal's heirs v. Day. Fall T. 1821. 6 Little's Ky. Rep. p. 492. Per Cur. Where the oblio-or in a bond, has obtained pos-'^''""*^'j p , , ' '^ presumed session of it, and destroyed it, it will be ^resumed to have been to be for a given for a valuable consideration. It seems, that a bond Will ennsidera be presumed, in all cases, to have been given for a valuable con- ^"^"'^"'^ 'h® , ., Ti •' PI IT ojiHs lies Up sideration ; and notv.athstanding the representations of the obli-onthepar gor, (not pretending to any personal knowledge of the matter,) ly''«"yi"S deny on oath that it was for a valuaijle consideration, yet the onus probands, that it was a voluntary bond, will lie on them. 4. Thompson v. M'Cord. Oct. T. 1796. 2 Bay's Rep. 76. S. P. State v Gailaird, et al. 2 Bay's Rep. 11 ; Grey v. Hanakinson. 1 Bay's Rep. 278. Debt on a bond. The defence in this case, was, that there But failura * Held by the Court, Kenyan, Ch. J. that the want or inadequacy of the con- sideration is no objection to a bond ; Fallows v. Taylor, 7 T. R. 447. There is a remarkable distinction in this respect, between bonds and other instruments under seal, and simple, and parol contracts. The general rule is, that it is essential to the validity of the former, that it should be founded on a sulTicient consideration and that if it be merely voluntary, or gratuitous without consideration, the agree, ment is nudum pactum ; but wJiere a security is under seal it is binding on the par. ty by whom it is executed, although there was no consideration for making it. Tho reason for this difference iy, that simple contracts cie often entered into by men unadvisedly and without sufficient deliberalior;, and therefore, tlie law has provi- ded that such agreements shall not bind without consideration ; but when tho agreement is under seal there is more time for reflection ; and as it has been ob- served with great simplicity, but at the same time with pqual trull>, when a man executes a bond, first there i^? a determination of the mind to do it, and upon that he causes it to bo written, which is cne part of deliberation, and afterwards he puts his seal to it, which is another part of deliberation, and lastly, ho delivers the instrument as his deed, which is the consumation of his determination ; 4 Pe- tersdorff'« Abr. 613 ; Harrington v. Stratton, Howd. 308. Vol. II. 49 386 BOND. — Consideration of. tionisa was a defect in the titJe ol the land, for "which this bond was fence i!i an given, or in other words, a failure of consideration. This evi- bond"°"* dence v/as not permitted to go to the jury. Per Cur. The testimony offered on the part of the defendant should have been permitted to have gone to the jury, upon the equitable ground of nfnilure of consideration. DcnR V. MuNSELL. Oct. T, 1813. 13 Johns. N. Y. Rep. 430. S. P. Vrooman v. Phelps. 2 Johns. Rep. 177. Contra, 111 p^^ (7j^^._ Sj}cnc?r, J. In an action of debt on a bond, the Isew York. ^ ' ... defendant cannot plead a failure of consideration, or iLidhe was induced to give the bond by a fraudulent representation of the value of a thing, which afterwards turned out to be of no value. 6. The adms. of Bell v. The adms. ov Huggins. May T. 1793. 1 Bay's S. Ca. Rep. 327. S. P. PriiNGLe v. The EXRs. OF WiTTEN. 1 Bay's Rep. 256. And the \n Debt on a bond. Defendant gave in evidence, that a part of rym>-\vdc the land, for which the bond Avas i i i i * i mouniof elder grant ; the jury may deduct the value ol the land taken ii-.i: fiuiure, j,^yj^y jiTid find a verdict for the residue. Ill an action -' ' on the bond. 7. Skillern's EXRS. V. May's EXRS. Feb. T. 1807. 4 Cranch's U. S. Rep. 137. Held by tiie Court, vvhcre a bond was given in consideration, ''^ It is a .'^eltled ]>rinciplc in tlie law of evidence, tliat an obligor is prrclurled from showing a condition or consideration conlraiy to vvh.ai is expressed in the in- sir'^T.^nt. Bi:t to this rule an exception is always made where the consideration is illegal, as being contaminated with simony, usury, compounding felony, &c. . Buckler T. Millard, 2 Ventr. 107 ; Collins v. Blantcrn, 2 VVils. 347 ; 4 Petercdorff'g Abr. 614. In an action of debt upon a bond, the defendant may plead that tho bond was given for an usurious consideration, thcugh a different and a legal con- sideration be recited. And where fraud is imputed, the party who complains of the fraud may prove any consideration, however contrary to the averment in the condition or rerifal in the bond to shew the fraudulent nature of the transaction 5 Fillmore V. Gott, 4 B. C. C. 234. The rule is, that matter contrary to the d«cd cannot be alledged, but matter coreistcnt with the deed may. Andlhe defendant may shew any mtitter which shews the bond was given for an illegal consideration, whether it is or is not consistent with tho bond ; Paxton v. Popham, 9 East. 421' A bond given in consideration of future illicit cohabitation is illegal and void' Walker v. Perkins, 3 Burr. 1516. But a bond given to put an end to illicit inter- course is val'd ; Turner v. Vaughan, 2 Wells 339; Vide Armondale v, Harris, 2 P. Wms. 432 ; and 3 1|. & S. 463 ; 4 B. & A. 650. "Where the coi:?'dc.-a BO'S'D.—Iillegality of. 387 that the obligor conveyed certain lands to Ilia ouligee, and ll'UlH,^, which, by neglect of the obligor, ^-^was unable to perform, &c. by fault of he prosecuted the bond to judgment, and fded a petition to en- ^^,-;y'|"' force payment by Cue p-'jculors of the obligee, ihut Ihey would not bmd n« not lend their equitable powers to carry into etlect tliejudg- aid him. ment. (B) Illegality OF co?fsiDERATioN. 1. Woodson v. Barret. March T. ISOS. 2 Hen. & Muraf. Va. Rep. 80. S. P. BucxNER v. Smith, et al. i Wash. U. S. Rep. 381 ; Hoomes v. S:.iACK. 1 Wash. Rep. 564 ; Norton v. Rose. 2 Wash. 298. Per Cur. The assignee of a bond for money won at gaming, ce'or^a pf "i connot recover, though the assignment was for a valuable con- i-K bond sideration, and though he had no notice of the origin oi lue bond ; co^r for a unless the obligor, before the assignment, induce him to take y^'^'-'^^'® the bond by promising to pay hirn the money. tion, unless the oblisror Lei>re the 2. assignment induce him Churchill v. Perkins, et al. Oct. T. 1S09. 5 Mass. Rep. |_^ -'ke ths ' ' -^ bond. p. 541. This was an action on a penal bond, given, by the defendants, ^j^'^^^'p^^j. to the plaintiff, a<^ a constable, for the release of a prisoner v.'ho ports tobe w"as ariciteJ by virtue of a warrant. Defendants demurred, p-ocurea Per Cur. Seuiall, J. The arrest is recited to be by a war-f,-oni a c.im rant granted by a justice of the peace ; which seems technical- i""^ ?^r"'^*'» ly to describe a process criminalite'-^ and therefore the bond is void. The obligation is colore ojjicii. Davis v. Hull. Spring T. 1822. 1 Linle's. Ky. Rep. 9. S. P. Love v. Buckkor. 4 Bibb. 506. •Held by the Court, that a bond given in consideration of the So for the . . . . , sale of an sale of the office of deputy sheiiff, is void, and the def»;ndant office. may avail himself of it, where it appears on the face of the bond, or he may plead it in bar. 4. Cameron v. M'Farland. 2 N. Ca. Law Repository, p. 415. The question in this case was, whether an agreement not to )^. Or Q bond 388 BOND. — Consideration of. llQ^^^^l'^Q prosecute for malicious mischief, forming part of the consider- prosccnte ation of a bond, Avould vitiate it, as beino; ao-ainst law. ciousmis Per Cur. Taylor, C.J. We do not require the authority of chiefjs any adjudged case, to enable us to pronounce clearly and une- quivocally that this bond is void. The principle of our decision is incorporated in the Common Law, which does not sanction any obligation, founded upon a consideration which contravenes its general policy, 5. January v. Cartwright. Fall T. 1821. 6 Little's Ky. Rep. p. 449. Alsoone Per Cur. A prison bounds bond, conditioned to pay interest conditioned , . *■ •' to pay inter on the COSts, IS VOld. est on costs. 6. ^ , ^ Given v. Driggs. Nov. T. 1803. 1 Caine's N. Y. Rep. 450. Bnt a bond _ '■ loiiidemni Debt by the sheriff, on a bond of indemnity against the defen- in'Tsc'ape, dant, as surety of one G. Driggs. It appeared the bond in this given after case was given when G. Drio-o-s was at large, by the permission an eccape i -rr o t j r suffered, is of the sheriff, and was conditioned to save harmless the plain- goot, tiff from all charges and damages, &c., by reason of the afore- said taking of G. Driggs, &c. The defence was, that the bond was given for ease and favour, and therefore void. Per Cur. Kent, J. The evidence on both sides concur, that when the bond was given, G. Driggs was not a prisoner, but at large, and had been so for some days, by the permission of the sheriff. Abond given to indemnify against an escape already happened, is good.* The bonds which are void under the act, as being for ease and favour, are those given by a person in custody. WiNTiiROP V. DocKENDORFF, ET AL. Juuc T, 1824. 3 Greeu- leaf's Me. Rep. 156. S. P. Morse v. Hodson, 5 Mass. Rep. 314; Clapp v. Cofran, 7 Mass. Rep. 101 ; Bur- roughs V. LowDEii, 8 Mass. Rep. 373 ; Bartlett v. Willis, 3 Mass. Rep. 86. enfjrtlfe^ Debt on a bond for the gaol limits. It appeared that the act prison litn in relation to the prison limits was repealed 21 March, 1821, statute re and the bond bore date in November of the same year. The * The reason why a bond to permit an escape, is void, is, because it is to do an unlawful act. When that act is already done, the reason fails. BO}^D.— Illegality of. 389 bond was made pavable to the creditor and in conformity toP^f'^-'* ^ •' , *^ not void as the law.s which had been in force, and were supposed by the par-beinginre ties still to be. And the question before the court was, whether j-^|." the bond was valid. Per Cur. Mellen^ C. J. It is contended that this bond is void on the ground of ease and favour, but it must be remem- bered that the bond in the present' case, was made payable to the creditor ; it never was intended as a security to the officer. Nor is it void on the ground of public policy being in restraint of liberty. The principles of the common law give validity to the bond. There is no reason why the bond should not be good at common law ; it having been voluntarily entered into for the benefit of the principal, to procure a relaxation of a lawful im- prisonment, to which he could not be entitled without giving bond, and the bond being accepted by the obligee he is entitled to judgment. Morse v. Hodson, et al. May T. 1809, 5 Mass. Rep. 314. Debt on a replevin bond given by the defendant, conditioned ^*^'" °"® to prosecute the suit to final judgment. The defence was that not conform the bond did not comply with the requisitions of the statute and si'iiono7?he was therefore void. statute. Per Cur. We do not recognize any principle of the common law, by which the bond in this case is void at law. If it be void it must be so in consequence of the statute directing the form of the writ of replevin. True it is, that the condition in this case is variant from the form there directed ; but that stat- ute does not prohibit the taking a bond of any other form, or declaring a bond of any other form void. Greenwood v. The Executors of Colcock, Oct. T. 1796, 2 Bay's S. C. A. Rep. 67. Per Cur. A bond given to a sheritf, to indemnify him for not But a bond returning an execution, is null and void by the common law. fhlriV for^' not return 10. ing an exe cation, is United States v.'Hipkins, at al. 2 Hall's Amer. Law Jour, '^o^^* p. 80. It was held by the Court in this case, that the condition of a^V^u"** ond taken by a public officer, not required by law to take a bond, public ofB is void, and no action can be sustained upon it. JhoHs"ed"by la«r, is void. 190 BOl^B.— Condition of. 11. Clap v. Cofran, Oct. T. 1810, 7 Mass. Rep. ; S. P. Freeman V. Davis, 7 Mass. Rep. 200. enforlefr The plaintiff havinc^ recovered judgment against one N., who than double -^yjis arrested and committed to prison. While thus a prisoner he the sum for i i • • ^ • i i i i r i which the executed a bond to the plaintiff as principal and the defendant as commiued s^i^s^y ^^^ *^^ liberty of the jail yard ; N. escaped, and this ac- isgood. tion was brought. Plea in bar that the bond was void, not be- ing made pursuant to the statute, as the penalty was not in double the sum for which N. was imprisoned. Fer Cur. Parsons^ C. J. If the penalty be not double the sum, for which the debtor is imprisoned, it is not a bond within the statute, and the debtor may be relieved against the penalty, by a judgment for the sum, for which he is imprisoned ; but the bond is not void. 12. . Whiting v. Johnson. June. T. 1824. 11 Sergt & Rawle's Pa. Rep. 328. But where Held by the Court, that w^here a bond was taken for more a bond is ta than the real debt, with an intent to defraud the creditors of the more than obligor, the bond is void by the statute of Elizabeth. the real debt with iq nn intent to defraud, il -n ; ^ ,, _i isvoid. Pendleton and sureties v. Bank of Kentucky. Fall T. 1824. 1 Monroe's Ky. Rep. 171. Various . . . bonds given Per Cur. Mills, J. It is certain that an obligee may receive deVt bv r"a^ ^^ many obligations as he pleases ,from different persons, to se- rious per cure the same demand; and unless one, expressly accepted in ac- sons jxrc ^ i. j ^ valid. cord and satisfaction of the rest, they are all in force, and it is not clear that such an acceptance would discharge them. IV, OF THE CONDITION. 1. Bennet, et al. v. Kennedy. May T. 1831. 7 Wend. N. Y. Rep. 163. Where an Debt on a bond conditioned that thcdcfendant would not per- boundhim mit a canal to be dug through the land conveyed to him by the selfnotto p|^j^|-|j-5g ancestor. The defendant conveyed the land to a dig a canal ^ _ -' through third person who dug the canal. ed to him, Held by Court, Sutherland, /., that the defendant was liable . BOISH). —Condition of. 391 for a brecich of the bond, and that the canal must be consider- '^5 *^°"T^y, ' _ _ _ fid the land ed as having been cut by his permission. to another, wlio dug ^ the canal, ~" held the con Greely V. United States. Feb. T. 1821. 8 Wheat. U. S. SenT^^ Rep. 257. The question submitted to the Court was, whether an Ameri-'^^°"d '? 1 111 • • 1 1 • n • observe the can private armed vessel, duly commissioned, making collusive treaties and captures of enemy's property during the late war with Great Erit- ^^),^-^ cfthe ain, and under colour of such capture, introducing goods and States, by- merchandize into the United States, contrary to the provisions ^an private of the act of March, 1, 1S09, c. 195, revised and continued in^'medves ' ' ' ' &el IS bick force by the act of March, 2, 1811. c. 306, thereby broke theenbymak ingcoilas" captures condition of the bond, given pursuant to the third section of the ''^|^°''"^^^'® statute of June 36, 1812, c. 430, requiring "That the owners, and officers and crew, who shall be employed on board such commissioned vessel, €hall and will observe the treaties and laws of the United States. Held by the Court, the bond was forfeited. 3. The United States v. Four part pieces or woolen cloth. Sept. T. 1825, 1 Paine's 434. The condition of the bond was to pay the appraised value of ^'^''^'^'■^'^° 1 • 1 T-t- • /^ -,-11111 onditionof the goods, into the District Court, il they should be condemned, the bond The bond was taken in the District Court of Yew York, vrhen 'i',3\!^lJJ^f the whole state was embraced in the district. And under the ^'^"^ ^^o''^. ^" statute dividing the state into two districts, the proceedings Courtj"'^ were transferred to the northern district, and bv a subseauentj'^^y ' ;''"^'-^ ' •' T be condem Statute, to this Court, where the goods were condemned. ned, held Held by the Court, T/wmpsoji^ J.>, that a condemnation in the demnation Circuit Court, was a forfeiture of the bond — that the Court must ^"•'^^*-^"". . . cult Court be governed in the interpretation of the bond, by its legalw^sa effect and operation. And the remedy upon it is the same as ifuiecondi^ the cause had remained in the District Court, and the condemna-^'°"- tion had taken place there. 4. Adams v. Spear. Sept. T. 1795. 1 Haywood's N. Ca. Rep. p. 215. Held by the Court, that the condition of a bond is no part of T'^^ '='^"^' the obligation, and if the declaration be foi- the sum mentioned bondVnot in the condition, and the bond be for twice that sum, the decla-;'"'°^.['sa^*' ration is bad. ^^^°'^ ' 192 BOND.— Condition of. 5 Jones v. Cooper, Dec. T. 1825. 2 Aiken's Vt. 54. In a bond Held by the Court, that when the condition of a bond is to do condilioned ,, , i , i i ■n ^i . • i. r ii_ to do an act an act " when thereto requested,", the request is part ot the "when re condition, and must be averred and proved. It is a traversable quested," ' ^ the request fact, must be proved. Proofthat Streshley et al. V. The United States. Feb. T. 1807. 4 theobligor Cranch's, U. S. Rep. 169. pciid over , the money Debt on a bond conditioned that the defendant " should col. collected j^^^ ^j^^ duties and duly account for and pay the same to the su- anu deliver J . ed true ac pervisor or some other proper officer." The assignment of the counts of 1 , , • 1 i- f o outstanding breach was not paying over and accounting lor, &c. duties to his Held by the Court, that proof that the obligor paid all the succfssor.is ■J ^ . . . 1 , T acompic'Le money collected at the revocation of his commission, and deliv- alfreachfor^''^^^ *° ^'^ successor true accounts of the "outstanding duties, is not account a Complete negative of the breach of the condition. ingand pay ing over to thesupervis '• or, or some other prop Flemming V. GiLBERT. Nov. ISOS. 3 Johns. Rep. N. Y. 528. er officer. o -r» tj- -.^ S. P. Keating v. Price. IJohns. N. Y. Cas. 23. The time of Per Cur. Thompson, J. The time of the performance of anceofthe ^^^ Condition of a bond may be enlarged by a parol agreement Tbond nmy^°^ ^lie parties ; and where certain acts were done by the obligor, be rniarged amounting to a substantial though not a literal performance of yparo. ^j^^ Condition, evidence of a parol agreement of the obligee, to waive any further performance, is admissible. 8. M'NiTT V. Clark. Feb. T. 1811. 7 Johns. N. Y. Rep. 464. Where an Debt on bond. The condition was, if the defendant should obligor has _ ' an election pay to the plaintiff $600, in one year from date, or $400, in iainsum*^or six months from date, then the method of separating, collect- thc profits ij^g^ and preparing the sulphate of ashes into sal. polychrist or nessatacertart vitriol, was to belong to the defendants, and the whole right nnd"ne"le'cts °^ Vending the same in the county of Chenango, and no where lodoeither, else, or otherwise the defendant was to return two thirds of his election, the profits arising from the sales of such patent right, at the end of every six months ; and at the end of six months, the defend- ant was to have his choice, either to pay the $400, or return two thirds of the profits at that time. The breach assigned was, that the defendant did not pay the plaintiff the sum of $400, at the BOND.— Condition of. 393 end of six months, nor return two thirds of the profits, &c., at the end of every six months, nor has he paid the plaintiff $600, at the end of one year from the date of the said bond. Plaintiff contended that the defendant, not having elected to account and return the profits, within the time mentioned in the condition, was precluded of his right of election, by accounting for the profits. Per Cur. The defendant is to be considered as having fail- ed in every part of the condition of the bond, and to have per- formed neither alternative. He had his election to pay the $400, at the end of six months, or account, or to pay the $600, at the end of one year, or account for the profits ; but having to- tally failed, he has lost his election, and the plaintiff may now elect for himself. Smith v. Sanborn. January T. 1814. 11 Johns. N. Y. Rep. p. 59. The defendant ag'-eed to pay the plaintiff $8 per acre, forii„orhas land, in two several payments, on different days, and in case of^i'^J-f^^t"^ default, he agreed to pay nine dollars per acre, at a further spe- the time spe cified time. The defendant failed to pay at either of the times" ^ specified. Per Cur. This appears to have been an alternative obligation, and the defendant had his election to pay at the rate of $8 per acre by a certain time, or to pay $9 an acre by another specific time, and which last time had not arrived when the suit was commenced. The right of electing the alternative, belonged to the defendant. 10. Galloway v. Legan. January T. 1826. 16 Martin's Lou. Rep. p. 167. Mathews^ J. This suit is brought by the curatrix of Gal- ^" *■' alter 1 J. , • 1 Tx ,- 1 native obli loway, to recover a certain negro slave. Defendant sets up agaiion, the right to hold the slave, an account of advancino; $180. to the in- ^^^'i!''^" '" ' . . . ^ with the testate. A bill of exception to the opinion of the judge, a gwo, party prom by which he refused evidence of $12 receipt given by the defen-^^'"^' dant to the plaintiff, wherein he promised to credit thi.t amount, on a mortgage, which he had on the property of Gallow^ay, or pay it to the person from whom he received it. In rejecting the receipt offered to prove payment of the sum specified therein, on the mortgage, we are of opinion that the Vol. II, 50 39-i BOND. — Ccnsiruction of. judge did not err. Tie insiiument crcrxtes, on the part of the receiver of the money, an alternative obligation, in discharge of which, he has the choice of means, either by crediting the amount on the mortgage of the irtr^stale ; or refunding it to the curalrix. To force him in this suit to give credit on the former contract would deprive him of the choice which he has of right on the last agreement, 11. Regan v. Kitchen, et al. August T. 1814. 3 Martin's Lou. Rep. 418. ligorh-.shis ^^'' Cur. This suit was instituted by Regan, In the Court be- dection I:; j^^^. r,n a bond giveii to the sheriff of the parish of Concordia, by li. Vv imams, and the appellant, in the penalty of $500, with a condition that V/illiams should abide the judgment, that might be rendered against him, in the parish court, in a suit by attachment, there pe«ding against him, or that he should deliver a ^prtain negro therein named, when required, if it should become necessary. It appears the parties bound thera- selvesto do one of two things, viz.: to abide the judgment, or delivf'rthc slave, and the security must be discharged on the performance of eliher. (V) OF THE CONSTRUCTION OF. 1. JMiNOR. ET AL. V. Mechanics' Bank of Alexandria. Jan. T. 1828. 1 Peters' U. S. Rep. 46. The word?, Debt on a bond, given on Minor, as prlaLipal. and others, as •' v/el! aiiu . . . > r i > j trnlyexe surelies, Conditioned, " that Minoi shall well and truly execute e.;.ofht c!u +j-^g duties of cashier'' of the brink. tie? of cash ier,-'l;;a It was Contended, that the words "well and truly execute," bon:; are . j 7 c.^oirued meant only tntegrUyj, and did not imply rapacity and skill '•>.ap:icii7 P<^^ C'wr. Story, J. The condition that Minor "shall well aiidrkill." and truly execute the duties of cashier" of the bank, is said to be merely a stipulation for honesty, in discharge of the duties, and not for skill, capacity, or diligence. We z:e cf a different opinion. "V/ell and truly to execute the duties of the office," includes not only honesty, but reasonable skill and diligence. If the duties are performed negligently, and unskilfully — if they are violated, from want Cx"" capacity, or vvant of care, thp" ran ueveibe E?id to h*^ " well and truly executed." Tiie operations of a bank require diligence, with Ulness and capacity, iiS well BOND. — Construction of. 395 as honesty, in its cashier; and security for llie faithful discharge of his duties, would be utterly illusory, if \:e were to narrow down its import to a guarantee, against personal fraud only. 2. Pennymann v. Bakrymore. Feb. T. 1S-2S. 18 Martin's Lou. Rep. 494. Held by the Court, Pcrtzr, J., that the wnrds, "fourteen hun- uju?!.^,";^';'. rlred ard ro to pay the balance to the plaintiff, on a certain uay. '^be plain- |^'^"^^fj^^^^,. tiff, before the day, by a sealed instrument, agreed that the bal- ^Y loi^h^pa *" , rent trie ance should be put on interest, for the benefit of his chlluren, and piaintiiT, the defendant to be under bonds, for the faithful performance of^'-^V^ the trust, and to account for, and refund the balance, when "^oiiu,,-ivcn thereunto required. The defendant tendered a bond, with con-balp^-re to dition to pay the debts, to apply the balance to the sunnort and I'-e children education of the children, and to pay over m equal shares, ed to be a to the childrcr:, any balance that might remain in his hands, at^,?^'}^^!;^^.?^.^ the decease of the plaintiff. green-.enu It was heldby the Court, Parker^ C. /., tiial the covenant to pay the balance to the plaintiff, was waived by the sealed agree- ment of the plaintiff, and the condition to apply the proceeds to the maintenance and support of the children, and to pay ever to them what shall remain after the death of the plaintiff, is a substantial compliance with his promise. 396 BO'SD.— Construction of. 5. South Caroilna Society v. John Johnson, Jun. Jan. T. 1821. 1 xM'Cord's S. Ca. Rep. 41. S. P. Hughes v. Smith. £ Johns. 168. Where the Debt on a bond, against defendant as one of the sureties of thgpel^fol^mP^*^^ '^''■t!2:evant, treasurer of the South Carolina Society. He anceofan -was elected Treasurer, in 1808, when the defendant became se- cd annual curity, and was annually elected, until the year 1814, but no iL V^r„.. new bond was taken. He accounted reffularly until August, are bound 1813, when a deficiency of upwards of two thousand dollars year, al "^^'^s discovered. The condition of the bond, was, "that if the though no above bound, Peter Trezevant, John Johnson, Jun., &c., shall time IS spe . . . 777 cifieclin the well and truly deliver to the said society the sums of money, &c,, °" ' and shall at all times, when required, render a true and faith- ful account, &c., and shall faithfully discharge his trust as treasurer of the said society, then this obligation to be void, &c. Per Cur. JYoit, J. It does not appear on the face of this bond, how long a time its obligation was intended to continue. But its object appears to be to secure the faithful performance of Mr. Trezevant's duties, as treasurer of the South Caro- lina Society. The duration of the bond must therefore be de- termined by the duration of office. By a reference to the rules of the society, it appears that the treasurer was elected only for one year. The legal operation of the bond, therefore, cannot be carried beyond that period. 6. White v. De Villiers, et al. Oct. T. 1799. 1 Johns. N. Y. Cas. 173. A b d to "^^^^ grantee, to whom lands were conveyed, gave a bond to save harm the grantor, to save him harmless against a mortgage, which was a^mortgas;e lielcl by a third person, and was then a lien upon the land. strued^oTx Held by the Court, that by a fair construction of the condition tend to a of the bond, it would embrace an indemnification of the bond, bond accom . i ii . ^i i i u panyin£;it. accompanymg the mortgage, and that the mortgage was to be considered as collateral security. 7. bycreditoisHALSYY V. Whitney. Oct. T. 1826. 4 Mason's U. S. Rep. loindcmni 206. iy iiieir '^ debtor, will Held by the Court, that, where creditors oblige themselves edacove ^^ indemnify their debtor against all claims, they Avill construe nantby jt a several covenant by each creditor, and not a ioint cove- each credit in or. nant by all. BOND. ~Co7i$frucHon of. 397 8. Union Bank of Maryland v. Ridge ly. 1 Har. & Gill's Md. Rep. . . . The court Held by the Court, that they would in giving construction tomaycon . a bond, look to the intention of the parties, at the ^.time it was ^^'"^^f^^""^'' executed, and expound it as the law was when the bond was to effect the . intention of executed. . the parties, 9 Gully v. Gully. June"" T. 1820. 1 Hawk's N. Ca. Rep.20. The Court held, that the condition of a bond, ought to be so -^"^^ '"^«" ... .7 , ,. VV-1 , • sible words construed, by rejecting insensible words, so as to fulfil the intent will be re of the parlies. j^'^'^'^' 10. Cooke v. Graham, admr. Feb. T. 1805. 3 Cranch's U. S. Rep. n 9^" p. 4d^\J . . Ttr Cur. The court may depart from the letter of the con- may depart dition of a bond, to carry into eftect the intention of the parties. |"^^"^y^^^^^^' And vide Minor, et al. v. The Bank of Alexandria, Peters' Rep. condition, 46, where the court held, that the. official bond of the cashier must be construed to cover all defaults in the duty, which are annexed to the office from time to time, by those who are author- ised to controul the affairs of the bank ; and the sureties in a bond, are presumed to enter into a contract with reference to the rights and authorities, of the president and directors, under the charter and bye laws. 11- Amos v. Johnson. May T. 1794. 3 Har. & M'Hen. Md. Rep. p. 216. Debt upon a bond, given by the defendant, to the plaintiff, for '} ^°^^ ^^ ' t? .' T L 1 j^j^g deputy the faithful execution and performance of duties, as deputy sher- she iff does iff of Hartford county, and make return of all fines, taxes, pen- "°[j^g"^j^g*^ alties, &c. by him collected. tlonoftax The cause was referred, and the arbitrators awarded. Weitbespe are of opinion, that the condition of the bond extends only to ^j'^j^g^'JJi^^io the duty of a deputy sheriff, and not to the collection of public condition, assessments, &c. The plaintiff caveated the award, and assigned for reasons, " that the arbitrators were mistaken in point of law, inasmuch as the condition of the bond doe'^ include the public taxes." The caveat was overruled by the court, and the plaintiff appeal- ed to this court. Judgment affirmed. one mstru 398 BOND. — Of the principal a7id sureties. 12. Winston v. The Commonwealth. April T. 1800. 2 Call's Va. ^ . Rep. 246. Two separ ■"■ ate bonds William Overton Winston, late sheriff of the county of Han- may be la -, 1 ,^^. ^ ,,. , __^. , _ /-^ X eluded in over, John Winston, Bickerton vVinston, and James Overton, securities for the said William O. Winston ; and Cecelia Ander- son, administratrix of William Anderson deceased, Avho was likewise late sheriff of the county aforesaid, and Robert Page and Matthew Anderson, securities for the said Cecelia Ander- son, gave a bond " that the said William Overton Winston, and his securities aforesaid, in the sum of Ten Thousand Dollars, and the said Cecelia Anderson, and her securities, in the sum of Five Thousand Dollars, &c. to the payment whereof, well r.nd^ truly, according to our obligation aforesaid, we bind ourselves, our heirs, executors and administrators, jointly and severally, by these presents ; upon condition that the said William 0. Wins- ton, should deliver to the said Park Goodall, sheriff of the county of Hanover, goods seized upon Q.Ji. fa. against him; and also that the said Cecelia Anderson, &c. should deliver the goods seized as the property of William Anderson. It was contended, that a forth coming bond could not be tak- en on two or more executions. Per Cur. Roane, J. The bond is to be considered as one of two several obligations entered into, on the part of two several sheriffs, and their respective securities, although consolidated in the same instrument. This construction arises not only from its being stated in the obligation, that the parties were bound in dif- ferent sums, but also from the terms therein used, that the obligors were bound for the payment, " according .to our obligation afore- said." What is mentioned of the amount of the aggregate sum, does not vary the construction. VI. OF PRINCIPAL AND SURETIES. 1. Smith v. Crooker, et al. Oct. 1809. 5 Mass. Rep. 538. A surety's Debt on bond. The bond was in this form : " Know all men bcTnsmc^l by these presents, that we, Daniel Crooker, Junr. and , jnhisab stand firmly bound, &c.'-' The surety executed the bond, leav- ^^""' ing the blank in the body of the bond, which was afterwards fil- led up. Per Cur. A bond executed by a surety, before his name was BOND. — Of the principal and sureties. 399 inserted in the body of the bond, his name being afterwards in- serted, when he was not present, is good against him. A party executing a bond, knowing that there are blanks in it, to be fil- led up by inserting particular names, or things, must be consid- ered as agreeing that the blanks may be thus filled, after he has executed the bond. Bartley and Ferguson v. Yates. May T. 1808. 2 Hen. & Mum. Va. Rep. 398. S. P. Wilkinson v. M'Locklin & Co. 1 Call. 49. Debt on a forth coming bond. The bond was signed and seal- ^^^ where . a blank is ed by Bartley & Ferguson, but a blank was left in the penal partieft in the of the bond, for Ferguson's name, which had not been filled up, P^",^' P"'j ' » ' ^ of the bond Per Cur. Flemings J. The question is, whether Ferguson, K*^!^*^ ^^'^"'' ■whose name is omitted in the penal part of the bond, but who is is in the stated in the condition as the security, and who has signed and *^""^":'u"*^ . part, the sealed it, be bound in law. It is laid down in Mathew v. Perchins, bond is val Cro. Jac. 203, that if the meaning of the parties can be collect-' ed from the bond, it will be good. Again, the name of the obli- gor subscribed is sufficient, though there be a blank for Lis chris- tian name in the bond. So ] conceive it to be so in the present case, although there is a total blank for the security's name, in the penalty of the bond; he being stated in the condition as se- curity for the delivery of the property, to which he put his sig- nature and seal. 3. Andrus v. Beals, et al. Aug. T. 1824. 9 Cowen's N. Y. Rep, p. 693. Debt on a bond given for the faithful performance of a dep-^J*- ^^°"'^■ " ^ r of mdemni uty sheriff. tytothe Plea non damjiificatus. Demurrer and joinder. L's deputy. Held by the Court, that where it appeared the deputy had J'^'^^J'^J'^^j^^ collected money, and had not paid it over; and the sheriff was lege the attached for not returning the writ, and he paid the money vol-notpa^d the untarily to the plaintiff, in the execution, the sureties in the "^°''^y- bond, were liable to him ; he became damnified by being liable to pay the money. 4. Grayv. Baldwin. January T, 1826. 16 Martin's Lou. Rep. p. 196. S. P. GiLLY V. Lee. 1 Martin's Lou. Rep. p. 237. Porter, J. The defendant in this case had become surety for !J!Jj^ p^y,^ 400 BOND.— 0/ the j^rincipal and sureties. the money the plaintiff and others, on an appeal bond, and being obliged to hAs"iio'r[ghtpay the amount of the judgment, he took a receipt, with subro- touseihe (ration, from the attorney at law, of the obligee, and issued ex- gainst the ecution in his name, which was levied on property of the principal. i • j-rr ^ ^ plaintiti. The Court of the first instance, enjoined the defendant from proceeding in this way, and oa hearing the parties, made the in- junction perpetual. The reason assigned by the judge for this decision is, that the judicial surety, who pays either voluntarily or by virtue of an execution against him, acquires no title to use the judgment obtained against his principal, so as to sue out execution upon it. The evidence of the payment is by an act sous seing prive^ which did not become authentic by being filed in the record of the case; such an instrument does not authorise the surety to use the via executiva. 5. Anderson v. Longden. February T. 1816. 1 Wheat. U. S. Rep. 85. Sureties in Held by the Court, that where a bond was given by an agent '*'^°"'^ '■'i''' of an incorporated ioint stock company, to the directors, for the rectors of a _ _ ' ■< _ i j ■> ^ ^ > joint stock time being, for the faithfid performance of his duties, and the di- contfnue'lia^sctors Were appointed annually, and charged before a breach of bie after the ti^e Condition of the bond, the aL'ent and his sureties are liable, obligees . . , / "-' r i i i i i cease to be in an action brought by liie obligees, after they had ceased to be directors, directors. 6. Armstrong, et al. v. United States. Oct. T. 1811. 1 Peters' C. C. U. S. Rep. 46. But they Held by the Couit, that a bond given by a collector of the arenotiia j-gvenue. Conditioned that the collector had accounted, and Lie to taxes ' i n . i • i. previously would account, for all taxes collected, or to be colJected, is not rScon" obligatory on the sureties, as to collections previously made. ditii lied that the col m lector had accounted and would HoLDSHip V. Jaudon. Sept. T. 1827. 16 Sergt. & Rawle's accoun*. for „„-,-, ^ .^v ht -n all taxes Penn. Rep. 307. S. P. Hall v. Carter. 7 Mass. Rep. collected. gg. Qg^pp^ admr. V. CoFFRAND. iUd. 200; Burrows V. Louder. 8 Mass. Reports, 373. die^pilainUff ^ebt On bond. One Lambden being in the custody of the by one in Marshall, gave a bond to the plaintiff, (who was plaintiff in the execution, BOND. — Of the principal and sureties. 401 suit, in which Lamden was arrested,) in which t^e defendant jsgood,^and was surety, conditioned to surrender himself to prison, &c. — lloVieifitbs . , . , ■. 1 1 • , • rt- 11 forfeited. And the question was, whether the plamtiit could recover on this bond. Verdict for plaintiff. Per Cur. Rogers, J. If the condition of an obligation be to do a thing, which is ??ia[u?7i in se., the condition and also the obligation is void ; as if an obligation be with condition to kill another; Co. Litt. 266, C. But if the condition of an ob- ligation, be to do a thing contrary to a maxim of law, or repug- nant to the nature of the grant of an estate, the obligation is good ; and that is the case now before the Court. Judgment affirmed. Waters' representatives v. Riley's admrs.' June T. 1828. . 2 Har. & Gill's Md. Rep. 305. S. P. Harrison v. Field. 2 Wash. Rep. 138; Williams v. Hodgson. 2 Har. & Johns. Rep. 480. Note. George Riley and Richard Waters, were sureties in a joint ad- Where the . . . 1 , r -r. • surety has ministration bond, for one Browning. paid the Waters died, and after his death, suits were commenced j^^'^^y'^.^^^p^j ao-ainst Rilev and Brownino;, and Riley paid the bond. Browning h's co-sure , °. . , -* , ,. ,• • 1 , '^'tytoraake being insolvent. And this was a proceeding in the county court, contribu sitting; as a court of equity, to compel the administrators of^"'"' "•■ ^f o n. J 1 L may be sub Waters to contribute. The court decided in favour of the con-stit'jr^e his -^ rr -^ r:r?ri:s un passed oa tne 27th of October, suspended him from office, until isVommunr^^^ further pleasure of the board, and directed the papers, books, caied. &,c. of the bank to be taken out of his hands. This resolution Avas communicated to Magill on the 30th of October. Held by the Court, Thompson, J., that the suspension of Ma- gill, did not take effect until the notice of it was communicated to hira, and that he was still an officer of the bank within the meaning of the bond, and his sureties were liable for his acts up to that period. The liabilities of the sureties n-ust, according to every reasonable intendment, be co-extensive in point of time with the authority of the cashier to act. BOND. — Of the principal and sureties. 403 12. RocKFELLER, ET AL. V. DoNAi.T.v. Dcc. T, 1826. 8 Co-.ven's N. Y. Rep. 623. Debt on abend, to save the to^vn of Clermont harmless in ^j|]^^^:J^;f.^^* supporting ^i bastard chi^d. the n-iaimen '" . a;.ce 'in Held by the Court, tiiat the order of iiiiaiion and maintenance ba.-ia. ' i? ip?.de against the putative father. \'^ per se conclusive evidence ^'^•^?^„j!^'^f.^ to sustain an action on the bond of indemnity, aerainst the su.c-'^r". no lou „,,.,,. . , , affamst the ties, i his order, when the overseers rest upon it, supersedes the gu.eiicsina necessity of proof of actual expenditure. The sureties are '^'*"^- bound that the putative father shall indemnify the town in pursu- ance of the order of filiation, and a judgment by a ccUi^etent tribunal, determining the mode of making the indemnification, to which the town is entitled, is conclusive upon him, and must be binding upon his sureties. 13. Sloss v. Galloway's exrs. May T. 1794. 3 Har. & M'Hen. Md. Rep. 204. Debt on ^ bond, conditioned that, if the above bounden Wil-Thesecmi liam M'llvaine, his executors, &c. shall well and truly abide by, fy,.,n The de obey and perform the ordor and final decree of the hip-h court of^;'^- of the "^ ^ f 'Mir* of chancery, that shall hereafter be made in the cause aforesaid, Ch.-vncory is then the oblieration to be void, &c. "^""wi'l'r'h.n The suit in chancery, abated by the death of Wm. M'llvaine, ^'"^ ^^*^,^^ ,'' , r . ' tor of :he and was revived against his administrator, and a decree v.as af- |-..incipf.! tervk'ards entered, that the administrator pay a certain sum of "''*''^^^ ^* money, when assets should come into his hands. Held by the Court, that the security in the bond (the defen- dant) was not liable on the bond, if the administrator had no assets. United States v. Tillotsok, et al. Sept. T. 1823. 1 Paine's C. C. Rep. 306. S. P. Cramer v. Higgii^son, ET AL. 1 Mason's TT. S. Rep. 323 ; Hunt v. Tke Uni- TEn States. 1 Gallis, 32; M'Lemore v. Powell, et AL. 12 Wheat. 554. Per Cxi:. Thompson^ J. Sureties cannot be made responsi- An^nct ble, beyond the scope of thf ir Mga^ .iiient. Anv c!i.reeraent ue-:i!'''"JlJ'^^- tween the creditor and pi incipal, which varies essenliailv the tiaiiy the terms of the contract, \vithout the consent of the sureties, will chS« the 404 BOND. — Of the "principal and suretits. surety, but exonerate tliem from all responsibility. A new debt incurred, mere delr-.y , i i i i' i • • to demand or the dcniand enlarj^ed, or any act done, to the injury and pre- doe^not'^ judice of the surety, will discharge him from all liability. So also of a guarantor. But a surety is not discharged by mere delay to demand payment. 15. Blood v. Goodrich, et al. May T. 1832. 9 Wend. N. Y. Rep. 68. S. P. Banorgee v. HovEy. 5 Mass. Rep. 11; Mackey V. Bloodgood. 9 Johns. Rep. 285; M'Bride V. HoGA]^r. 1 Wend. 326 : Van Ostram v. Reed. 1 Wend. 431; 5 Binney, 613. The power Held by the Court, Savage, C. /., that the power of an agent, of an agent ,,.,,. ••iii ^ ,^ -li ^i i to bind his to bind iiis piincipcU by bond, or other specialty, must be under prmcipalby ggj^]_ One man cannot authorize another to execute a deed for bond must be under him, but by deed, and no subsequent acknowledgement will do. 16. De Hart v. Wilson. April T. 1828. 6 Monroe's Ky. Rep. p. 579. Power giv Held by the Court, that an injunction bond, to be given, pur- en to CXnr.-^ Debt on bond. "Ward plead^cd that he was surety in the bond, n sniLiy'uic^'''^^ "^ Confession of judgment, with stay of execution, was giv- (liioor, aiiJ en and accepted without hib consent, and that he was thereby ciiLion by discharged. djes^nouHs Held by the Court, (Roa?icand Cahellj .Is.,) that if an obli- »iuigctl)3 gecin.a bond, make any variation in the ori':;inal couiract with sure! V ; It , . . , . , , . , ^ ■ . .i.nimu lo tue principal, without the iirivity of the surety, as if he change, a'Kl'n'''t^a ^'"'^ nature of the security, or agree to postpone the day of pay- release, meat, he thereby discharges the surety. B> a ?.tay of execution for a given time, amounts to a new contract, and conipromise witli the principal without the coiisent of the surety, and de- prives him of his remedy, by a bill ^um timet, the secuiity is BOND. — By the operation of law. 411 thereby discharged in cquifj^ but not at lav:, it amounts to a cov- enant, and not a release. C1.ARK, ET AL. V. Bush, kt al. Aug. T. 1824. 3 Cowen's N. Y. Rep. 151. Held by Court, Savage, C. J., that a bond by the creditor, to i;^')^^ save harmless ar.d indemnify the debtor, aj^ainst the debt, oper- itnrtoihe iebtor has All'! n honrl ates as a release of the debt. Vide Haskell, ct al. v. Keen, et o.l. \\^^ >>ameef 2 Nott & M'Cord, 160, where this subject is elaborately examined, .^ct. The court observed, that, although it might not operate as a (ii.<- charge of the bond, yet under the discount law of the state, it would be a bar to the plaintili 'is recovery. - ' 4. Phelps' admr. v. Johxson, et al. May T. 1811. 8 Johns. N. Y. Rep. 43. Debt on sealed notes, given by the defendants to ihe plaintiff 's b-u a cov3 testator, for the purchase of land. The notes were assigned U> ^^^a ^ca^g,',' Henry Remscn, and this suit was brought for his benefit. Af-instinmcnt., tervvards one of the defendants gave a bond and mortgage to the jhc jui-. is plauiiiif's testator, for the amount due on the note, and the ']-"""S''^' * , ' does. plaintiff's testator covenanted to procure and cancel the notes. Held by the Court, that this covenant of the plaintiff's testa- tor, with one of the defendants, amounted to a release — that this - construction was necessary, to avoid circuity uf action. For if instead of cancelling the notes, the intestate, or his representa- tives should put them in suit, and should recover, the defendants would be entitled to recover back \inder this covenant, precisely the same damages, which they might sustain by reason of the suit. Dearborn v. Cross, et at.. Feb. T. 1827. 7 Cowen's N. Y. Rep. 48. S. P. Lattimorf., et al. v. Harsen. 14 Johns. Rep. 330; Fleming v. Gilbert. 1 Johns. Cas. p. 22. Dearborn gave a bond to the defendants, conditioned to sell ^ 'oond land to them, and the defendants gave notc.^^ fvi the considera-ieaiejlr/ tion money, and took possession ; but afterwards by a parol T",'!;';' .,, agreement between the parties the land vvas surrendered io the a,o:reement _i • i-rr 's executed. plaintiti. Held by the Court, Sutherland^ J., that the bond was discharg- 413 . BOND. — Discharge of parties. ed — (Iiat a -bond, or other specialty might be released, or dis- charged by parol.* And that it was not necessary to decide, that a i^arol agreement to rescind a sealed contract, is binding, as the new agreement was substantially executed. 6. FiNLEY V. Lynx. Feb. T. 1810. 6 Cranch's U. S. Rep. 247. ^jj^yhg^p Plaintiff and defendant entered into a copartnership in two strained by gf q^-^^ one a iowelrv store, in the name of Lynn, and the other between a hardware store, m the name of Iinley &. Lynn, to be each un- the parties. ^^^^ ^y^^ management of the partners. Lynn owed Wells & Co. of New York, which it ^vas agreed the hrni should pay. After doin-T business some time together, the parties dissolv- ed. The terms of the. dissolution were that, " Adam Lynn shall withdraw all the. property put into the joint stock by him, and that he shall have the goods in the jewelry store and all the debts due to that store, as a compensation in lieu of the profits arising from the whole business ; and the said Finley, agrees to take, en his own account the goods in the hardware store, and the goods \vhich are ordered in the spring, and to indemnify the said Adam Lynn, from all claims or demands upon the said concern, or vrhicli may arise for goods now ordered and not yet received." Anl a bond of indemnity was executed, which stated, " on v/hich dissolution it was among other things agreed, that the said Oliver P.' Finley, shall well and truly satisfy, and pay all debts and contracts d«e from, or entered into by, the said co- partnership, or either of the said copartners, for, or on account of, or for the benefit of, the said copartnership, including cer- * A release of tho condi'.lons of a bond must be by deed; Sellers v. Eickford, 8 Taun. 31; Thompson v. Biown, 1 B. Moore, 358. And where two are jointly and severally bonnd, a release to one vviH operate as a discliarifo of the other obli- gor : Clayton V. Kynaston, 1 Ld. Raym. 420. And a rcloaso by one' obligee in a joint and several bond, operates as a discharge of and by all parties; Bagley v. Lloyd, 7 Mod. 250. But a covenant not to sue has not such an effect, it is a niero personal release ; Dean v. Newhall, 8 T. R. 168 ; Fitzgerald v Trant, 11 Mod. 254; Hutlon V. Eyre, G Taun. 289. And a covenant not to sue one of two or more ob- ligors, is not a release of tho others ; Lacy v. Kinaston, 1 Ld. Raym. 690. So a covenant not to sue for the term of 99 years, cannot be pleaded as a release ; AylifF V. Scrimsheire, 2 Sa.\k. 573. But wlsore a covenant not to sue the obligor within a specified time concluded, " and if he do, that the obligor shall plead tliis as an ac- quittance," it was construed to bo a release, aUhough the suspension of the obligors right of actirfin was only temporary ; Roil. Abr. pi. 2. - The appoidtmrnt of llio obligor an executor discharges the bond ; Checlham v. Ward, 1 B. & P. 630. ; or even one of several obligors ; ibid; Dorchester v. Webb. Wm. Jones; 345 ; and whether the obilgor accepts the appointment or not ; Wank* ford V. V-'ankfoi-d, 1 SrJk. 298. BOND. — By operation of laio. 413 tain debts due from the said Adam L}'nn, for goods by him ordered, which have been received by the said copartnership, and also all debts which may arise from merchandize hereafter shipped to the said concern in consequence of any orders here- tofore made. Now the condition of the above obligation is such that if the said Oliver P. Finley, shall well and truly sat- isfy and discharge all debts and contracts herein before describ- ed, so as to indemnify and save harmless, the said Adam Lynn from the payment of the same, and from any suit, or prosecu- tion in law, or equity for, or on account of, the said debts and contracts, then this obligation to be void." Held by the Court, Marshal!., C. J., that the bond executed in pursuance of the articles of agreenipnt, might be restrained by those articles. That a majority of the court were of opinion, that no departure in the bond from the articles was manifested •with sufficient clearness to justify the ixiterposition of the court. 7. Pendleton v. Bank of Kentucky. Fall T. 1824. 1 Monroe's Ky. Rep. 177. Where the bank required its officers to renew their bond annu- A''^. ''^"^^ n • ^1 111 T lionds may ally, in pursuance of rules and bye laws established by them, becontroled and which rules and bye laws contained a provision, that the I^'j^/^^g renewal should not impair the vcliJiiy of any former bonds un-l^":s"f the .•■• . . , 11 I 1 ' 1 i" • • 1 obligees. tu given up to be cancelled, and a new bond was given without cancelling the first. Held by the Court, Mills, J., that the old bond remained in full force, and its obligations v.'ere as extensive as if the second bond had not been taken. 8. Mason v. Haile. Jan. T. 1827. 12 Vv'h^at. U. S. Rep. 370. Debt on bond. Conditioned that the party shall remain a jf^fjjf^^I^j^^'f ° true prisoner, &c., until he shall be lawfully discharged, without solvent law committing any manner of escapes during the time of restraint, the obligor then this oblio;ation to be void, or else to remain in full force and '" ^j^'^"^ , ° ' for the gaol Virtue." limits. Held by the Court, Thompson, J., that a discharge under the insolvent laws of the state, obtained from the proper court, dis- charging the party from all debts, " and from all imprisonments arrest and restraint of his person therefor," was a lawful dis- charge, and his going at large under it, was no breach of the condition of the bond. In whatever light, therefore, the ques- 414 BOND. — Discharge of parties. tion is viewed, no breach of the condilion of the bond, accord- ing to its true sense and interpretation, has been committed. The liberation of the defendant from confinement, on his giving bond to t!;c sheriff to return to jail, in case his petition for a discharge should not be granted, Avas sanctioned by the due ex- ercise of legislative power, and was analogous to extending to him more enlarged jail limits, and would not be considered an escape. SuTTLEs & SuELETT V. Whitlock. Spring T. 1827. 4 Mon- roe's Ky. Rep. 451. riase ot'one ^^r Cur. Bihb, C. J. The plaintiff declares upon the cove- ofiiieobli j^ant made, by Beniamin Satlles and Joseph Sublett, to Thom- gees to one > j j l i • i of the oWi as Whitlock, and Phebe Pvadford, who afterwards married im'in'oblifa Benjamin Sutlles, and has since dfed, and therefore Whit- lion de lock, as survivor, 'sues. It has been argued that the decla- stroys the ^. , i , ,i • i t i ^ t rightofac ration siiows, that the action does not Jie, that the covenant tiionupon. ^Yjjg extinguished by the marriage of one of the obligees to one of the obligors, whereby a confusion of creditor and debt- or had taken place. There are strong reasons to infer that the fact is so, from the manner of declaring; it does seem asif the death of Phebe, since her interraarria2;e was sucrcfested, is sufficient to revive the action which had been sleeping during her intermarriage with Benjamin Suttles. But if the confusion of creditor and debtor had taken place, the death, of the wife could not revive the action against the husband. 10. Jennnings v. Anderson. Spring T. 1827. 4 JMonroe's Ky. Rep. p. 446. But the The fatber-in-lav/ gave his son in law an oblisration in conse- deathofa „ . . ^ person who quence of marrying his daughter, and the wife of the son-in-law itorious "led. cau.eofan Per Cur. Bihb.C.J. The death of the wife has no effect oblis;ation • _ _ / does not dis to extinguish or discharge the obligation. If given to the wife, °^^' it wonld have been the husband's. But given to the husband, it is not less his ; nor extinguished by his surviving his wife. 11. SoNEY V. M'Neil. January T. 1S24. 1 Harper's S. Ca. Rep. p. 156. Payrrsi'it to . theprimafa Per Cur. A peisoH who is in possession of a bond, assigned BOND. — By operation of laxo. 415 in blank, is in law prima fade, the owner ; and the obligor 1^^^^"^- ^^^7^',;^^ inn; payment to such holder bona fide will be discharged. discharges ^ ^ -' J . ^j^(^ obligor. M'Hard v. Whetcroft. May T. 1791. 3 Har. & M'Hen. Md. Ecp. 85. Heldby the Court, that where the condition of a bond is toTender^of^ pay a sum of money at or upon^ certain day, tender of payment jo,.e uie day , 1 ,, , . 1 iipona bond before the day is good. payable at, or on the 13 day, is good. Le Grand v. Baker, et al. Dec. T. 1827. 6 Monroe's Md. Rep. 245. Held bv the Court, Bihh, C. ./., that one joint obligee may re- And a pay '' 1 1 ' J _ mem to one cceive the whole money due on the bond — a payment to one is jointobligec . . n is ps.vment payment to all. - t,oail. 14. TheU. S. v. -Jaxuary & Patterson. Feb. T. 1813. 7 Cranch. U. S. Rep. 672. Debt on bond. Pay.nents made by a Arthur and the defendants executed a bond to the plaintiffs pnblic col _„^ ... , , . , 111 .,11 lectoronhis in the year 1/9/, conditioned that Arthur should execute the du- bonds will ties of his office of collector of the revenue, which was several 1^*^ "PP''^d ' in reference times renewed. In the year 1799, Arthur executed another bond to the time with Robert Patterson, as surety. From the year 1797, to the)g^,J^i.,^°j^j 30th of June, 1802, he was charged with the collection of 'lifJ'ghts . of the sure $30,584, and in the year 1803, he was found to be in - arrear tiesto the $16,181. The balance due when the second bond was given, ^^^^'^^^^ was reduced by payments made by Arthur, to $6,483, The supervisor had applied the payment to the discharge of the first bond, and the question v.-as, whether the United States vrcre bound by the application. Per Cur. Duval, J. In this case a majority of the Court is of opinion, that the rule adopted in ordinary cases, is not applicable to a case, circumstanced as this is; where the receiv- er is a public officer, not interested in the event of the suit, and who receives on account of the United Slates, where the pay- ments are indiscriminately made, and where diiTerent sureties, under distinct obligations, are interested. It will be generally admitted that monies arising" due, and collected subseque: ■ly to the execution of the second bond, cannot be applied to the dis- charge of the first bond, without manifest injury to the second; 41G BOND. — Discharge of parties. and vice versa, justice between the different sureties can only be done by reference to collectors books, and the evidence- which they contain may be supported by parol testimony, if any, in the possession of the parties interested. 15. State OF IMakyland v. V/aymax. June T. 1830. 2 Gill & Johns. Md. Rep. 234. S. P. Harris v. Capp, et al. 1 Mass. Rep. 308. V/ here the Debt on bond, conditioned that Thomas H. Bowie should consumtion _ ' _ limits the faithfully perform the duties of the office of Register in Chance- aM'ofH°er"to ''y- '^^^ bond was entered into, 24th of January, 1816, and he a certain continued to act as Reorister until his death, in 1821, without term, a sure , . • i i i • i • i » • i i • ty ill his being reappointed by the executive, or having renewed his obh- ^°'j[^[^';|]^''^gation to the state. And the question is, can the plaintiff re- ble beyond cover. The office of Register, is one of annual appointment, under the 49th section of the constitution of the state. Per Cur. Eal., J. The constitutional grant limits the du- ration of the office to a ceriain term, and no irregularities in the proceedings of the appointing power, can extend it beyonJ that period. The parties to the bond executed it with an express reference to the provisions of the constitution, and if its lan- guage could create a rcsponsibi'lty, not comprehended within them, we do not think that the expressions of this contract op- erate such an effect. The c.ondilion rightly and properly pur- sues the form of the art of 1742, and its words that seem to look to an extended responsibility, are, '• Whilst he shall continue in the office of Register of the Court of Chancery, and during the time he hath officiated in the said Register's office," and these we are clearly of opinion, arc to bo construed to relate to the time the officer lawfully continues in his office, and not to a pe- riod wdien he holds it without authority. The provisions of the constitution form the basis of the contract, and like the recital in the condition of a bond restrain the indefinite expressions us- ed in it, and adapt them to the intention of the parties. IC. M'Lean v. Whiting. Aug. 1811. S Johns. N. Y. Rep. 262. A discharge Debt upon a bond. The defendant confessed a judgment up- uvo hha on a bond to the plaintiff as obligee, signed by himself, and one co-uoli^ors Powers, on which a ca. sa. issued, and he was imprisoned. A does iioi ex ' , , 1 • , n teud lo ihe suit on the bond was afterwards brought against Powers, in Ui^cl^TgeisWhichhe confessed judgment, for the penalty of the bond, and BOND. — By operation of law. ^^'^ on which a ca. *c. issued for the costs of the suit against Pow- ^'■^JJ^^^PJ^' ers. Powers paid the costs, and was discharged. the costs on . . ly, ofthe Motion, that the defendant be discharged from imprison- suit against ^ him. ment. Per Cur. The defendant, Whiting, is charged in execution, for two of the instalments due on the bond, but not for any costs; and Powers was charged in execution, only foT the costs of the suit against him. His discharge from these costs, does not, and ought not to effect the execution against Whiting ; for the de- mands were distinct, and Whiting was never answ^erable for those costs. 17. Ordinary of Charleston District v. Corbett &. Light- toot. Sept. T. 1793. 1 Bay's S. Ca. Rep. 328. This was an action of debt, brought against the defendants, Securities 1 ... 1 • • . . • 1 J Ti J . in an admin who were securities in an administration bond. It appeared in istration evidence that the intestate's estate was wholly ruined by the j]^J,f/'"^"°' British army^ and that he died during the war, before he could where by make a regular return of his administration to the ordinary's ence*onha office. It was contended that the sureties were answerable only enemy the . . , . , . , estate waa for the good conduct of the administrator, that in this case there ruined. was no fault in the administrator. Per Cur. Rutlege^ C. J. That it was a well known rule, both of the civil and common law, that if the party performs, or if it is rendered impossible for him to perform, that in either case, both he and his sureties shall be exempt from the penalty, annexed to the obligation; and that the act of God, or an ene- my, were the highest excuses known in law for the non-perfom- ance of a contract. 18. Brewton v. Cannon Sept. T. 1795. 1 Biiy's S. Ca. Bep. 482. S. P. Mease v. Stevens. 1 Coxe's N. J. Rep. 434. This was an action of debt on a bond. No payment had A bond on been made on the bond, for upwards of 24 years. is no en Bay, J., directed the jury to find for the defendants, as the law of n^avment presumed it had been discharged, there being; no payments indors- ^^ill be pre J -4 -^i,- +u T, ■ J rr, 4 •? ^ r- ^ sumed to ba ed on it within the above period. Ihat it was a rule of law, paid in 20 that twenty years elapsing without any payment being made on fhg date^*" a bond, is presumptive evidence that it has been paid off.* * Where no demand has been made fcr twenty years on a bond, it is presump- tive proof that it hag been paid ; Oswald v. Leigh, 1 T. R. 270 ; Clolseli v. Budd, Vol. II. 53 time. 41S BOND. — Discharge of pariies. 19. Levy v. Hampton. May T. 1821. 1 M'Cord's S. Ca. Rep. 145. S. P. Exu. OF Smith v. Richardson. 1 Nott & M'Cord's Rep, 166; Du.^lap v. Ball. 2 Cranch's U. S. Rep. 183 ; Cottle V. Payne. 3 Day's Rep. 289: Thompson v. Skinner. 7 Johns. Rep. 556; Buewton v. Cannon. 1 Bay's Rep. 482; Palm^ir v. Dubois. 1 Const. Rep. 178; Hasxell v. Hart. 2 Nott & M'Cord's S. Ca. Rep. 160. Oraless Per Cur. Colcock^ J. Twenty years without any payments, will raise the presumption of payment; but even then, the pre- sumption may he rebutted by circumstances, whicli will tend to show that it was not paid. A less time with other circum- stances, going to show there was payment, may be sufficient. 20. ExRs. or Clark v. Hopkins. Feb. T. 1811. 7 Johns. N. Y. Rep. And ajudg p. 556. ment can not bo enter Per Cur. It would be against all rule to permit a judgment alarKe^oHS^^ be entered up on a warrant of attorney, after a lapse of years on a eighteen years, on tha usual affidavit.* Vide Jackson, dein. rvarranton Martin, (it al. V. Pratt, 10 Johns. Rep. 381. the usual i en r ii n affidavits. y tele Shepherd/ s exrs. v. Coolers exrs. 2 Hayw. Rep. 238. 1 Campb. 27, and even a less period. Where (Lere has been a settlement of ac- counts between the parties', ibid. Where the defendant resided in America, Lord Ellenborough held, that tlie defendant's absence for the period, rebutted the pre- Eunjption of payment; Newman v. Newman, 1 Stark. 101. And a receipt for in- terest within twenty' years may be given in evidence to rebut the presumption ; Searle V. Lord Barrington, 2 Ld. R,aym. 1370. But a presumption of payment is not rebutted by the poverty of tlio obligor; William v. Georges,! Campb. 217. In a recent case ; Rose v, Bryant 2 Campb. 321 ; Lord Ellcnborouglr decided, that an endorsement in the hand writing of the obligee, acknowledging the receipt of inter- est and of part principal, are not evidence that the bond was unsatisfied, unless it can bo shown that such indorsements were on the bond, at, or recently after, the time tliey bear date, and that lliey were writlen at the period when tliey operated agairist the writer's interest. * As to the doclrinf?, which relates to the limitation of actior.s on bond, tee the following cases ; Goldha«kv. Duane, Wharton's Digest, 9 ; and 2 Wash, C. C- Rep. 323 ; Palmer v, Dubois, 1 Con. Ct. Rep. 180; Quinces v. Ross' Admrs. 1 Tay- lor, 155; S. C. 2 Ilayw. Rep. 180; Rearden v. Searcy's heirs, 3 Mirsh. Rep. 544 ; 1 Lit. Rep. 53; Coljeji T. Thompson, 2 Con. Ct. Rep. 146 ; Bollz v. Prallman, 1 Yeate-s' Rep. 584. BOND.— % operation of law. 419 21. TiNSLEY V. Anderson. Oct. T. 1082. 3 Call's Va. Rep. 285. S. P. Eustace v. Gaskins. 1 Wash. Rep. 188; Dun- -LAP V. Ball 2 Cranch. Rep. 183; Cottle v. Payne. 3 Day's Cas. 289 ; Thompson v. Skinner. 7 Jolins. ilep. 556 ; Brewton v. Cannon 1 Bay's Rep. 482. Held by the Court, that a bond dated more than twenty u,,iess years before it was exhibited for payment, shall be taken p-f- there be sat ■ •iiiiOi.'il *stiCtory ma facie as paid. It is presumed to be paid, and the Court wi-l reasons to reject it unless satisfactory reasons are offered to^ avoidjjhe ^^;°^;j^jj^ presumption. ^^o"* 22. Smedes v. Hooghtalling, et al. May T. 1805. 3 Caiue's N. y. Rep. 48. This was an action on a bond, dated 1776, conditioned for the Such as ac paymen-t of jG'^OO, on the 4th day of June, then next. The de-fng'thebond fendant pleaded payment, and relied on the presumption cf law"*':'^! ^P"''^., arising from the lapse of time since the instrument was given. remauiing It did not appear, that any interest ever had been paid, nor was ^^^ * there any endorsement to that effect on the bond. It also ap- peared, that the obligor being called on for payment, he ac- knowledged the bond to be due, and appologized for having suffered it to remain so long unpaid. Upon this testimony the jury found for the plaintiff. Judgment on the verdict. 23. Giles v. Barremore. Dec. T. 1821. 5 Johns. N. Y. Ch. Rep. p. 545. The Chancellor. Presumptions, arising from a lapse of time, Presunip and the circumstances of the case, of the payment of a debt, "°"r'^"^ . ' * -' ' mg from a are allowed as much in this court, as in a Court of law. This lapse of court nnakes the presumption on the facts before it, without !oJe(Hn° ''' sending the case to law. equity as much as in law 24. State v. Boyd. June T. 1830. 2 Gill & Johns. Md. Rep. 365. S. P. Adams v. Woods. 2 Cranch's U. S. Rep. 336. And a tes Held by the Court, Buchanan^ C. J., that any bond required l^ond in Ma by law, to be given by an executor, or administrator, by reason of baS iu the assumed representative character of such executor and ad- '''•"'''* years. 420 BOND.— .^jj/g7mcn/ of. ministrator, and to secure the payment of debts and legacies, or the faithful administration of assets, is a testamentary, or admin- istration bond, within the meaning of the act of Assembly of 1729, and an action on such bond is barred, if not commenced within twelve years from the date of the bond. Vide Hammond v. Dento7i, 1 Har. ^ M'-Hen. Rep. 200. 25. Gates v. Brattle. March T. 1790. 1 Root's Conn. Rep. 187. And in Con ^ statute of this state, entitled " An act for the limitation of necticut to ... 17 years, prosecution in divers cases," &c., limited actions, on bonds, bills, &c. to seventeen years. 26. Potter, Judge, &c. v. Titcomb. May T. 1831. 7 Greenleaf 's Me. Rep. 302. Presump Debt on bond, conditioned for the faithful administration of tion does ,> ht rt^^ I 1 1 not extend the estate oi Moses litcomb, deceased. istrator's Held by the Court, Mellen, C. J., where the action is on an bond, itfap administrator's bond, to compel him to pay a private debt due Eliesonlyto . ^ t r ^ . onds for the intestate, the lapse of more than twenty years since the date men^ofmon °^ ^^^ bond, affords no ground for presuming payment to the eyorthe heirs. The presumption of payment does not seem applicable, anceofa except in cases of bonds, or other contracts for the payment of specific du money, or for the performance of a specific duty, at a fixed time, from which the period is to commence. VIII. OF THE ASSIGNMENT OF A BOND.* 1. VosE V. Handy. June T. 1823. 2 Greenleaf 's Me. Rep. 322. S. P. Prescott v. Hull. 17 Johns. N. Y. Rep. 284 ; Abond Dunn v. Snell. 15 Mass. Rep. 181. signed by^ The question before the Court was, whether a delivery of a delivery bond and mortgage, and a receipt of the money due on the bond * Bonds cannot be assigned at common law so as to entitle the assignee to an action in hie own name on the bond, he has only acquired a right by the assign- ment to retain the parchment or paper, upon which the bond is written, and lo cancel it at his pleasure ; Co. Litt. 232. a. ; Kingdom v. Jones, 2 Skin. 6. But courts of law will recognize the asrignment of a bond, so far, that if the original obligee lelease the debt after notice of the assignment ; Legh v. Legh, ] B. & P. 447; the asfignment amounts to a covenant that the assignee shall receive the monfy to liis own use ; per Half, \ Ld. Rnyni. 683, And De Grey^ C. J. and BO'SD.— Assignment of. 421 and mortgage, amounts to assignment of the bond and the debt due thereon. Per Cur. Melltn^ C. J. After a review of a number of ca- ses, held that a bond might be assigned by delivery only. Vide 1 Johns. Cas. 180; 11 Johns. Rep. 534; 17 Johns. Rep. 284; 11 Mass. Rep. 134. For many years courts of justice have been gradually becoming more and more inclined to pro- tect equitable interests. Less form is necessary now, than for- merly, as to the mode of creating such an interest. The object has been to ascertain that it is an interest founded in equity and justice, and on good and adequate consideration ; Clark v. Ro- gers, 2 Greenleaf, 143 ; Browne v. Maine Bank, 11 Mass Rep. Blackston, J., held that tho assignee of a money bond, might maintain an ac- tion for money had and received against an obligor who had by indorsement prom- iaed to pay it to tlie assignee ; Fenner v. ]Mears,2 Blk. 1269. So the assignee of a Scotch bond may maintain assumpsit in his own name ; James v. Dunlap 8 T. R. 595. An assignee must lake the bond subject to the same equity attached to it in the hands of the obligee, and the assignee must sue in the name of the assignor; the exceptions are bail bonds, replevin bonds, and other statutory bonds which depend upon the statutory provision. Provisions have been made in the different states respecting the assigning and endorsing of bonds, and enabling the assignee to sue in his own name, and secur- ing his rights in the debt assigned, as may be seen by a reference to the Satutes of the States, and the cases abridged in the text. A short view of tho law respecting them may be thus taken : In Illinois, a bond may be assigned and the indorsee may sue in his own name. When it is endorsed after due, tiie maker may set up any defence he could have made against the ■ maker. But when it is assigned before it is due, the maker may show payment before it was endorsed, on proving the assignee had notice. In North Carolina, by an act of 1786, C. 4., bills, bonds and notes for money, whether with, or without seal, aiid payable to order or for value received or not, are assignable, negotiable, and suable, in like manner and under the samo rules of 'aw as promissory notes, and by the act of 1789, c. 57., the assignee or indorsee miy bring debt in his own name, provided the original obligee could have maintain- ed such an action. And in the State of Georgia, bonds may be assigned in tho same manner as bills of exchange. So also in Indiana, bonds are assignable and the assignee may sus in his own name, and the assignor is liable over. In Virginia, by 1. Rev. Cod. 484. bonds may be assigned and the assignee may bring an ac- tion in his own name, subject to discounts against, the assignor before notice of the assignment. And thg assignee may rrcover against any remote assignor. In Ohio, by an act of Feb. 25, 1820, bonds are made assignable as bills of exchange, and the assignee may sue in his ov.n name. In Missouri, by an act of January 7, 1822, bonds are assignable, and the assignee may sue in his own name, in the same manner as tho assignee could have done, and ti:e assignor is not liable over, unless the assignee has used due diligence. In Tenncsee, by an act passed 1786, bonds are made negotiable in the same manner as promissory notes, wliether they be seal- ed or payable to order or not. The assignor is liable over to the assignee except on bonds with a collaleral condition. And in the Stale of Delaware, bonds are as- iignable and the assignee may sue in his own name. 422 B01 paper. «f ^^e assignee. 3. Pawling v. Speed. Fall T. 1808. 6 Little's Ky. Rep. 77. mentrf?^ Per Cur, The assignment, in consideration of natural affec- bond ill con tion, of a bond for the conveyance of land, and delivery of the of natural bond to the assignee, is a contract, which is as much beyond the affeaion, is power of equity to vacate, as an assignment for a valuable con- sideration would be. 4. , Neyfong v. Wells. Spring T. 1808. Hard. Ky. Rep. 561. After an ob r & j f ^ ligeehasas Held by the Court, that a bond for the conveyance of land is bfnd, lie assignable, but after the obligee has assigned it, he cannot main- cannot t^in a suit upon it in his own name, maintain a suit upon it Vide Henderson v. Hephurji^ 2 Call, 232 ; Winchester v. Hackley, iamJ.""^" 2 Crunch, 342 ; Guthrie v. White, 1 Ball 268. 5. eeofa bond Garland v, Richeson. May T. 1826. 4 Rand. Va, Rep. 266. statute law The assignee of a bond under the statute of Virginia, does of Virginia ^^^ acquire the leg-al tide to the debt, but an equitable right, has a mere . ^ . p ' ... equitable which, by virtue of the statute, he may assert at law in his own mavefect name; and he has his election to sue, at law, in his own name, to sue in his or in that of the original obligee, for his benefit. own name, or in the name of the 6. assignor. Stout V. Stevenson. Sept. T. 1818. 1 South. N. J. Rep. 178. signnient in -^'^ assignment in these words, " I assign my right to the with- these Nvtnds in bill, and guarantee its payment," on a sealed bill, was held to my light to authorise a recovery by the assignee, although no demand of pay- ^^^\ Tnd'" nient had been made, or notice given bill, guarantee Its oayment," the assignee can recover without a demand. BOND. — Assignment of. 423 7. Hubbard v. Pkather,. 1 Bibb's Ky. Rep. 178. , Where the assignor assigned part of a negotiable instrument ^"^^^p** the Court held, the assignee could not sue in his own name, nor part of a with the obligee. It merely makes the assignor responsible to bringasuit the assignee for the amount assigned, and an agreement is im-"P""''- plied on the part of the assignor, to use diligence to recover of the obligor. Parker v. Kennedy. May T. 1794. 1 Bay's S. Ca. Rep. 398, The defendant gave the plaintiff a bond, signed by one S., ^r'°^''f^'' payable to himself; at the time of passing it, he made a blank es a bond in endorsement on it, by placing his signature on the back of the jij|i,ig\ojha bond; S. died insolvent, and the question was, whether the de-^^l'^^'^- fendant was liable to the plaintiff, for the amount of the bond, or not. Per Cur. An endorsement of a bond, by the obligee, in blank, will not make him liable to a holder, in case of the insolvency of the obligor. Vide Howell v. Buckley, 1 Nott & M'Cord, 249, where the Court held, in an action by the assignee of a bond, against the ' obligor, it was immaterial, whether the assignment was made ' for a valuable consideration, or not. 9. FoLWELL, ET AL. V. Beaver. Oct. T. 1S25. 13 Sergt. &, Rawle's Penn. Rep. 311. S. P. Cumming's assignee, v. Lynn- 1 Dall, 444; Graham v. Goudy. Addis. 55; Parker V. Kennedy. 1 Bay, 398. Debt on a sealed note. Plaintiff proved the blank endorse- The obligee IS not aa ment to him, and the question was, whether the defendant was swerable liable on a blank endorsement. "^^r ^° ^^l assignee in Per Cur. Duncan, J. The endorsement by the payee of a '^,^^^"'K°^ I 1 1 1 the obligor sealed bill, does not make him liable to the holder. The cove- on the nant implied by the word "assign," extends only to this, that the fheTrstm'''' assignee should receive the money from the obligor to his own "'^nt is not use; and if the obligee should receive it, then he would be"^^°^^ answerable over, for it. Even where the obligor is insolvent, the assignee cannot come upon the obligee, and that on the o-en- eral ground, that the bond is not a negotiable instrument. 424 BCSD.— Assignment of. 10. Walker v. Scott. Jan. T. 1820. 2 Nott & M'Cord's S. C. Rep. 286; 1 Nott & M'Cord, 263, overruling; Bay v. Fra- ZER. 1 Bay, 66. An assign Held by the Court, that an assiccnment in these words, " pay ment m . . f r j these words ^he within bond to A., or order, and his receipt will be in full," wiUmi'bond^^^^ Hot make the obligee liable in case of the insolvency of the to A., or or obligor. And it was held by the Court, in De Costa v. Shrews- S^pf wiU^^^'^T' 1 ^^y^ 211: and Newman v. Croker, 1 Bay, 246, that S'oiSe ^^^^^^igi^es takes the bond, subject to all the equity and rules is not liable of law, to which it would have been subject, in the hands of the quencrof ^^^^P^^^ 5 but he is not liable to any equity between the original the insoiven parties, Subject to the assignment and notice. cy oi the ob ^ 11. Mackie's exr. v. Davis. Oct. T. 1796. 2 Wash. Va. Rep. 281. S. P. Cunningham v. Herndon. 2 Call, 532; GooDALL V. Stuart. 2 Hen. & Mumf. 105; M'Wil- LiAMS V. Smith. 1 CalL 125. The assign The question in this case, was, whether the assignor of a bond, orofabond -.i , ■ ^ . ,. ' ° . is not liable Without a Special Contract, IS liable to the assignee, in case of unless the inability in the obligor to pay ? assignee •' o r j use due dih pg^. Cur. The right of the assignee to resort back to him genee to re .7 cover the from vvhom he acquired the bond, is bottomed, upon principles iheTwieo- of common law. There is an implied agreement by the assign- or, that the money which he sells, and for which he receives an equivalent, shall be received by the purchaser, if he uses due diligence, as much so, as if any personal property whatever, were the only act of the contract. There is no reason why an implied warranty, should not exist in the sale of bonds, as well as in the sale of other, property. lam of opinion that the as- signor is liable. Where the 12. obligorpavs apartof Henry V. Brown. May T. 1821. 19 Johns. N. Y. Rep. 129. the assignee Held by the Court, where the obligor, on receiving notice of the and men assignment, paid the assignee part of the debt, and promised to tioned no ^ ' ■' ° . . . claim a pay the balance, and at the time mentioned, no claim against fss,v,^f,j.\^e the assignor, that he could not set of a demand against the as- catinof set signor he had before the bond. off an ante riordemand Vide Barry V. Hartman, 4 S. &. R., p. 175, where the Court assignor, held, that payment to the assignor, before notice of the assign- ment, was good. . .BOND. — Remedy on, 426 13." M'MuLLEN & Rudy v. Wenner. May T. 1827. 16 Sergt. & Rawle's Penn. Rep. 18. Heldby the Court; iJogcr^, J., that where the assignee of a f^° ^JjJ,^ bond was induced to purchase it, in consequence of representa- induced tha lions made by the obligor, that he could not defend, and w^ould pS'sVi?. pay it, that the obligor could not set up against the assignee, any equity of which he might have availed himself, against the oblio-ee, even where such communication w^as made to third per- sons in the presence of the assignee. 14. Stubbsv. Burwell. May T. 1898.2 Hen. & Mumf. Va. Rep. 536. S. P. Crawford v. M'Donald. 2 Hen. & Mumf. 189. Per Cur. A bond may be assigned in general terms, with a ^^I'^J^l verbal agreement, that the assignor shall not be responsible ; memdis and, thereupon, he will not be responsible, even to a subsequent ^ggfjjgjjjiU assignee, having no notice of such agreement. ^y- IX REMEDY ON. (A) Of the action. •1 Minor, et al. v. The Mechanics' Bank of Alexandria. January T. 1828, 1 Peters' U. S. Rep. 46. S. P. Left- wicH, ET AL. V. Berkley. 1 Hen. & Mumf. Va. Rep. p. 62. Debt on a joint and several bond. In a joint Per Cur. Story, J. The plaintiff might have commenced a bSnciThe'*^ suit against each of the obligors, severally, or a joint suit against plaintiff ji 1 1 ifc T> ' "i_ f 1 11 "1 mflv sue tnem all. But in strictness ol law, he has no right to com- one or all of the obligors. * If a bond be made to two obligees " et omnibus et cuilibet coram obh'gat" they cannot bring sepcrate actions; Spencer v. Durant, 1 Shaw. 8. And if one oi two joint obligors be sued, the non joinder of the other must be pleaded in abatement : Cobel V. Vaughan, 1 Saund. 291. Per Cur. The declaration is against two. It appears on tlio face of the record that the bond is executed by two. It appears in- deed, on the record by means of the Oyer, that the bond is executed bj' three, but how does that prove that it is not the deed of the two? And if it is the deed of the two, the issue is supported. It would be very odd, that proof that a bond was executed by three should disprove that it was executed by two ; South v. Tanner 2 Taunt. 254. But where the objection appears upon the face of the record advant age may be taken of it in arrest of judgment; Horner v. Moor, cited in 5 Burr 2614 Vol. II. 64 ' 426 BOlsD.— Remedy cm. mence a suit against any intermediate number. He must sue all, or one. The objection, however, is not fatal to the merits, but is pleadable in abatement only, and if not so pleaded, it is waived by pleading to the merits. The reason is, that the ob- ligation is still the deed of all the obligors who are sued, though not solely their deed ; and, therefore, there is no variance in point of law, between the deed declared on, and that proved. It is still the joint deed of the parties sued, although others have joined in it. 2. Bernard, et al. v. Curtis, et al. March T. 1816. 4 Mar- tin's Lou. Rep. 214. And a prin It is alleged on the part of the surety, that he is not liable to cipal and It is a rule that a party cannot bc^bound to several persons in one obligation to pay them seperately. Hence a bond of £200 to two, to pay £100 to the one and the residue to the other is void, Dyer. 350. And where the following expressions were used in a bond, "bo it known that I, A. B. do acknowledge myself to owe and be indebted to B. and C. in the sum of £91 \2s. Gd., for which payment to bo made, I bind m3'solfin £100.'" It was doubted by tiie court whether B. alone coulj brin^ the action, or both should join; Fuxall v. Sands, Cro Jac. 251. But it is s ated 4 Petersdorff 's ^br. p. 593, that bolh should join in the action, and that tho word " I bind myself in one hundred pounds" oLiglu to havn been rejected as sur- plus ige. And where i^ne or more of 8>n'cral joint obligees die, the legal interest is vested in tiie survivor, and in suing upon such bond the executor or admiqjslrator of the deceased cannot be joined, nor can he sue separately, though the deceased alone might be entitled to the beneficial interest in the obligation, 4 Petersdorff's Ahr. p. 593. And it is clearly settled that two or more may bind themselves joint- ly in an obligation, or they may bind tliemselves jointly and severally, and that the words " ourselves and each of us by himself" create a joint and separate liabilityt and in whicJi the obligee may proceed against them all jointly or each seperately though their interest be joint, ibid.; and 1 Saund. 153; 5 Burr. 1190. But if there be more than two jiarties to a joint and several bond, as where three obligors are jointly and severally bound, the plainlifF must proceed against them all jointly, or each of them separately; Stratfield v. Halliday, 3T. Rep. 782. An action upon a bond must be brought in the name of the party who has the legal interest. A bond given to a firm may be sued by those parties who were in the firm when the bond was given ; Mollor v. Lambert, 2 Campb. 548. Where the bond is joint and several, and the obligation is to pay several, they must all if living join in tiie action. And if one of several obligees, who ought when living to join, be dead, or did not seal the instrument, that fjct should be averred in the declaration at the suit of the others, or the defendant may crave oyer and demur; 4 Petersdorff 's Abr. 634. The action must be brought against the obligor or his executors or administrators or if the heir be named and lie have assets by descent against the heir. If their be several obligors and the obligation joint, then against them all, or if the obligation bo joint and several against them all jointly, or each of them separately; Cabell v* Vaughan, 1 Saund. 291 ; Whepdaie^s case, 5 Co. Rep. 119 ; Spencer v. Durand, 1 Show. 8. If there be more than two parties to a joint and several bond, the plain- tiff must proceed against them all jointlj', or each of them separately ; Stratfield t. HalJday, 3 T. Rep. 782. BOND.— 0/ the actim. 427 be sued jointly with the principal debtor, and that on his plea, f"'\^y"^*y or demand of a discussion, the suits ought to have abated, as to < d at the him. "^'^-^ '^'"''• The principle, in case of suits against sureties, is, that the di - cussion of the principal debtor's property, must be previously made, if the surety require it. Therefore, had the surety been first sued alone, it is clear, that this request, on his part, (sup- posing it to be accompanied with the conditions annexed to it by law,) would have compelled the plaintiff to resort to a separate action against the principal, and that he should not have been permitted to proceed against the surety, until an execution, be- ing levied on the principal's property, should prove insufficient. The surety who is bound secondarily, and only in case the principal does not pay, secures to himself that adva^t;g^ ly the plea of discussion. What he is to pay, is to be ascertain- ed by the execution of the property of the principal. But, whether such previous execution take place in a suit against the principal alone, or in one against both, justice is equally done to the surety. It may even be said, that the mode of" pro- ceeding, is rather advantageous to him, in saving costs, which he is eventually liable to lose. We are, therefore, of opinion, that the present action can be maintained, against both defend- ^ ^ On the as Silts. signment of ajoinibond q which makes only Logan v. Ross. 1 Marshall's Ky. Rep. 308. oShgoVsm Held by the Court, that if a joint obligation by three, be as- ^po"sible, • * i«»i •'*•!/» tflG suit signed, so as to limit the assignee s right of recovery to one on- must be ly, the suit must be brought in the name of the obligee, and not ^/le^^'n^g'of in the names of the assignees, and must be brought against all, the obligee, and not confined to one whose liability is assigned. sue all. Where two 4. of three ITT t /-^ 1 1 -n ^-,-, joint obli Williams v. Alley. Cooke s Rep. 2d7. gorspay Held by the Court, that if three enter into a joint bond, for the iheycannct payment of money, which is discharp;ed by two of them, they '^""S^i'^'"'^ .,-.. . . ii-iri- action for cannot maintain a joint action against the third, for his proper- comribu tion. tion against the other ob 5. . " I'gor. Gratz v. Stump. Cooke's Rep. 494. Where the ^ bond IS sev Held by the Court, that on a several obligation, the obligee eral the ob may sue any one of the obligors, without noticing in his writ or sue anyone declaration, the others. oftheobh gors 428 BO'S D. —Remedy on. A-NON. 1 Hayw. N. Ca. 144. Successors Held by the Court, that a bond g-iven to a public officer, in may sue on •' ' o f^ ' anoffiritii trust for others, need not be to him, "and his successors" — his bond with -^ -.i j. i • j outbeino- successors may sue upon it, without being named, named. 7. Bailey, ET al. v. Lewis, et al. June T. 1809. 3 Day's Conn. Cas. 450. But the sue The Court held, where a bond was given to a committee of an committee ecclesiastical society, and their successors in office, that after cannot. the removal of the committee from office, the successors could sustain an action on the bond, in their own names. On a mar Hernandez, et a l. v. Montgomery. May T. 1824. 14 Mar- shalT'sbond tin's Lou. Rep. 422. •IlJeH-" Held by the Court, Porter, J., that a party injured, may sue in his bring a suit in his own name, on a marshall's bond, by the act of Snd"e?uTe° Congress, of 1789, and the act of 1806, entitled, "an act rela- actsof Con ting to bonds given by marshalls ; " Ing. Pig. 402. 9. Strong v. Spear. 1 Haywood's N. Ca. Rep. 214. wofaltl'd ^^^^' ^'^'^ ^^^^ est factum pleaded. may main Upon the trial the bond was produced, and it was indors- uponitin ^'^i with an assignment to Mr. M'Kay, whereupon it was his own objected by the defendant's counsel, that the interest of this name ; the '' .*'. -. ^ ..,,,. possession bond being in M'Kay, the present action by the original obligee, that^he^iias ^^uld not be supported; such assignment by 1786, ch. 4. vests paid the en the whole property of the bond in the assignee. Per Cur. This case is like that of Smith and St. Lawrence, lately decided at Hillsborough ; the bond being in the possession of the endorser, is evidence prima facie, that he has paid the endorsee for it, Indorsers frequently bring suit upon bills en- dorsed by them, when the endorsee is refused payment, or can- not obtain it and returns the bill, receiving payment of the en- dorser himself. 10. Tafts v. BR.irwsTER, ET AL. Oct. T. I8l2. 9 Johns. N. Y. Rep. 334. S. P. MuNN. V. Commission Company. 15 Johns. Rep. p. 44; Stackpole v. Arnold. 11 Mass. Rep. 27 ; Northampton Bank v. Pepoon. 11 Mass. Rep. 288. number of Debt on a bond, conditioned that the defendants, as trustees BOND.— 0/ the action. 429 of " the Baptist society, of the town of Richfield, their ^eirs, perjonssign &c. should pay, &c." The bond was signed "Jacob Brewster, in their in Thadeus Loomis, and Joseph Coats, trustees of the Baptist So- jj!^'|^'|Jgi'|jg ciety, of the town of Richfield," and sealed by thera respec- " trustees -' ' of the Bap lively. list society Per Cur. The bond must be considered as given by the (le-«f Jj^t.'heicT fendants in their individual capacities. It is not the bond ofitwasa the Baptist Church ; and if the defendants are not bound, the ^^[p^jQ^„ of Church certainly is not, for the Church has not contracted, ei- P*'''sons,and ther in its corporate name, or by its seal, ihe addition of trus- individual tees to the names of the defendants, is in this case a mere de^- '^ ^'*^'°" criptio pcrsonarum. Vide post, tit. "Principal and Agent." 11. Corporation of Washington v. Young. Feb. T. 1825. 10 Wheat. U. S. Rep. 406. The defendant gave a bond, as manager of a lottery, drawn in -'^ suit can pursuance ol an ordinance oi the corporation of the city of lainedonan Washington, conditioned " truly and impartially to execute the r*^*^'-^°"^ o ' _ .> I . J by a private duty and authority vested in him by the ordinance." person, with out the con Held by the Court, Mars/mil, C. J., that a person, who had sent of the drawn a prize, could not bring; a suit to recover it ag-ainst the ^^T^^"^ •';''• ] , ^ ^ whom It 13 manager on his bond, in the name of the corporation, without given, their consent. 12. Taylor v. Grace, et al. July T. 1811. 2 Murphy's N. Ca. Rep. 66. J. Grace gave a bond to the plaintiff, on which an action of J^^o- will an debt was brought, after J. Grace died against the defendants, who gainTi heirs were his heirs at law ; and upon the trial, the iudg-e nonsuited "j?°,"^^''"^ .1 ^ .■ re .1 11 1 11. JO of the ances the plamtitt, on the ground that the obligor had not bound his tor.in %vhich heirs to pay the debt, which decision was affirmed on error.* exFe^.ly''' bound. 13. Freeman v. Adams. May T, 1812. 9 Johns. N. Y. Rep. 115. S. P. Myers v. Dixon. 2 Hall's Rep. 456. Per Cur. No action lies on the penalty of an arbitration And no ac . tionlies on The heir is only liabie, when expressly named in the bond ; Barber v. Fox, 2 Saund. 136. An executoris entitled to the full benefit of an obligation, made 'to his deceased testator; Barker, et al. v. Parker, 1 T. R. 287. And if a man enter into a bond, his executors are bound, though thry are not mentioned in any part of theinstrirment; Shep. Touchst. 369 ; ibid. 430 BOND.-— i?t'mc%07». anarbitra bond for the non performance of an award, where the award is lion bond, ,.,.,. . .i^v* x,. where there not made Within the time specified in the condition of the bond ; Se^n"t'Txteii*^^°"Sh ^^^^ parties, by an agreement under their hands and seals, dingihe had enlarged the time for making the award, and endorsed the time of the f xi i. i j .1 i , • , • award. agreement on the bond, and the award was made within such en- larged time. 14. Com'th v. Hatch. March T. 1809. 5 Mass. Rep. 191. lie for a Debt On a bond, for the faithful performance of the duties of breach of ^he office of inspector of beef, the condt ^ tion of a The bond was put in suit by one Nichols, who alleged that he bond given , , . % • , p i by a public had Sustained injury by the unfaithful conduct of Bruce. private per "^^^^ Court held, that as the bond was given in pursuance of son. the statute, for the sole uSe of the commonwealth, and the stat- ute gave no private person a right to avail himself of the breach of the condition of the bond; and as the action was not com- menced by any of the public law officers, or by any person au thorised by them, they would order a stay of proceedings. 15. Sanford v. Sanford. June T. 1807. 2 Day's Conn. Rep. p. 559. • So in Con Held by the Court, that on a bond given to the select-men of necticut. ^^^ ^^^^^^ ^^ Woodbridge, for the support of an inhabitant, on a breach of the condition of the bond, the inhabitant, for whom the bond was given, could not sustain an action upon it. 16. Garreisee v. Van Ness. May T. 1826. 1 Penning. Rep. 20. S. P. Davent>ort v. Barnes, et al. 1 Penning. Rep. p. 211 ; Admrs. of Harris v. Clark. 2 Penning. Rep. ^, - P- 158- The assign , ^ ^ -r^ 77 1 t> • ee cannot Held by the Court, Kirkpatnck^ C. J. Russell and Penning- aSonV ton, Js., that the assignee of a bund cannot sustain an action gainst the against the assignor on the failure of the obligor to pay. assignor on ° the failure oftheobli !<• gorio pay. g^^ ^._ ^o^i^s. Jan. T. 1817. 14 Mass. Rep. 107. Debt does noMie by Debt upon a bond, made by the defendant, to one John Somes, of\Tond?° his heirs, executors, administrators, or assigns, and upon an as in his own gio-nment thereof, by the said John, to the plaintiflf. name, a o ^ J gainst the General demurrer to the declaration. obligor. BOND.— 0/ the action. 431 Per Cur. This is the first attempt to maintain an action of debt by the assignee of a bond in his own name. The word " assigns," has been for centuriss inserted in bonds and obliga- tions ; but no one has conceived that it gave to them a negotia- ble property, so as to transfer the right of action upon them, to the assignee. We have gone as far in favour of assignment, as the authorities, or the reason of them would justify us. But to support the present action would be, to disregard settled and es- tablished rules, founded on sound principles of law, and the highest reason. Tha counsel for the plaintiff, cited the follow- ing cases ; Tuttle v. Bebec, 8 Johns. Rep. 152; 12 Mass, 281 ; 1 Cranch, 428 ; 3 Dall. 505. 18. Ferris V. Purdy, et al. Aug. T. 1813. 10 Johns. N. Y. Rep. p. 367. Debt on bond, conditioned, " that if the above bounden trus-ThepUIn tees of the Presbyterian Society, of York Town, shall w^ell and .how he has truly furnish the said George Ferris, if necessity requires, with aj^he^condf comfortable dwelling-house, 20 by 30 feet, with a small kitchen, tion piece then the above obliga'ion to be void. Plea gsneral issue. The 1^^^^^^ re proof was, that the plaintiff occupied a house under the defen- cover, dants, and was turned out by an ejectment. The defendants proved that the plaintiff attorneJ to the lessors in the action of ejectment, and remained in possession until he rented another house, and removed from the premises. Plaintiff submitted to a non suit. Motion to set the nonsuit aside. Per Cur. The condition of the bond was evidently for a purpose of christian charity. The obligors were trustees of a church, and they were to furnish the plaintiff with a comforta- ble dwelling-house, if necessity required. The obligee was bound to show the existence of that necessity, as a condition precedent. 19. State Bank v. Wells, exr. of A. Tours. March T. 1825. 3 Pickg. Mass. Rep. 15. This was an action brought against T. Baxter, and the defen- And a sep dant's testator, as surviving obligors, in a joint and several bond- n'a'^be*^"°" Tours died and his death was suggested on the record, and the '>i9"g'it-fi ,. 11 • i r» i era in St the action proceeded against Baxter. representa The Court held, that a separate action might be sustained ^^^^0°/^*"° 432 BOND. — Remedy on. T^nt^v^nl ^g^^"^^ ^^^ executor of Tours, while the first action was pending ing against against Baxter. the surv'iv or. Vide Clark v. Parish, 1 Bibb's Ky. Rep. 547, where it was held by the Court, that a joint action against a surviving obligor, and the representatives of a deceased obligor cannot be main- tained, though separate ac,tions may be maintained against them at the same time, under the statute of Kentucky. 20. Waters, et al. admrs. v. Eddy. Sept. T. 1829. 8 Pickg. Mass. Rep. p. 399, S. P. Arnold v. Lyman. 17 Mass. Rep. 400; Watson v. Cambridge. 15 Mass. Rep. 286. Anadminis Debt on bond. Irator may ^doi^flT" '^^^ defendant gave a bond to his father, the plaintiff 'sintes- the benefit ^^te, in consideration of the conveyance of land by his father j''J(g'jg^"g^,i^ to him, conditioned to pay all the debts his father owed and oragainst indemnify and save him harmless from all cost, &,c, Eddy, on a bond, ^he father, had given a note to one Hinds, which was not paid conditioned during Eddy's life, who died insolvent; the plaintiffs presented the to pay all " -^ ' ^ i tr the intes note to the defendant, and demanded payment, and on refusal, tate's debts, this action was brought. It was contended, as Eddy, the father, had not been damnified, this action would not lie. Parker^ C. J. The condition of the bond, is, that the obligor shall pay all the debts which the obligee owes. It was the consideration of the conveyance of the estate to the son. The bond is payable to the obligee, his executors, &c. which ex- cludes the supposition suggested, that it was intended to be per- sonal, so as not to be in force after his death. If the obligee had lived he could have maintained an action on the bond for the non-payment of his debts, although he had not been called on to pay them. We think this suit may be maintained by the administrator. 21. The exrs. or Hatfield v. Kennedy. Sept. T. 1793. 1 Bay's S. Ca. Rep. 501. The plain Debt On a bond. tiff may sue eitherofthc A special verdict, in this case, found, that the bond in ques- obligors, . '■ ' ■' ' ^ oDligors, ... though one tion was a joint and several bond from one H. and the defend J^S"^' '"'"'' ant, to the deceased, Hatfield; and that Kennedy signed his name as surety. It was submitted whether the plaintiffs CDuld J BOND.— 0/ the action. 433 proceed against R. until he became liable upon the failure of the principal. Per Cur. Upon a joint and several bond, the plaintiff may sue either of the obligors, at his election, though one of them sign his name as security. 22. Chace, admr. v. Hinman. January T. 1S32. 8 Wendell's N. Yi Rep. 452. S. P. Rockfeller. v. Donally. 8 Cowan's Rep. 623. Debt on a bond, conditioned that the defendant would save Upon a harmless, and indemnify the plaintiff's intestate, his heirs, &c. of^injjg*!^" against all damages, cost, and charges which he or they might m "i^y, 1- 1- -u? r 1, r ^u 1 f ^ ^ • actualdam any way be liable for, by reason of the reversal ot a certain ages must judgment in favour of the defendant, which had been obtained '^^ ^^°^"» against him, upon a promissory note, to which the obligee was a party, and to indemnify him against the note, and any judgment or proceeding which might be had against him as endorser thereof. The judgment was reversed in the Court of Errors, and a suit commenced on the note against the administrator of the intes- tate, and judgment quando acciderint entered. The Court held, the plaintiff was entitled to recover. Sutherland J. There is no doubt as to the general proposi- tion, that in order to recover upon a mere bond of indemnity, actual damage must be shown. If the indemnity be against the payment of money, the plaintiff must in general prove actual payment, or that which the law considers equivalent to actual payment. A mere legal liability to pay is not in such case suf- ficient ; but if the indemnity be not only against actual damage or expense, but also against any liability iox damages or expen- ses, then the party need not wait until he has actually paid such damages, but his right of action is complete when he becomes legally liable for them. Judgment for plaintiff. 23. Not where Ramsay ad5. Gervais. 1798. 2 Hay's S. Ca. Rep. 145. theobiiga ^ •' ^ tion IS to Debt on a bond of indemnity. The plaintiff endorsed a note save the for the defendant, and took his bond to save him harmless, harmless from all the consequences and damages, &c., which might arise f''^"^ ^''*^°" ^ sGQiicnccs from this endorsement. The plaintiff wassue d on his endorse- and damag ment, and he then immediately commenced this action on the mi'ghtTrisa bond, and obtained judgment by default. A motion was made tofromanacu Vol. II. 55 434 BOl^B. —Rtmedy on. set aside this judgment, on the ground that the action was pre- maturely brought. Per Car. Upon a bond of indemnity, the obligee is not oblig- ed to wait until he is compelled to pay the money for the defen- dant; he may bring his action the moment the first breach hap- pens, in not perf jr^. i g he condition of the i-on 1. 24. RocKFELLER, ET AL. V. DoNAi.LY. Dcc. T. 1826. 8 Cowcn's N. Y. Rep. 613 ; S. C. 4 Cowen, 253. bond to in Debt upon a bond to save, defend, and keep harmless, and in- demnifyand demnify the town of Clermont, for the maintenance of a bastard save harm . -i ■ less a town child. for the main rrii o /^ iiiiji ii i i -i n • i ten:inceof -1^6 Supreme Court held, that the bond was a bond ot indem- chUd^^'^^'^ nity, and nothing more, and that the plaintiffs were obliged to show they were damnified, by expending money for the support and maintenance of th ch Id. The Court held, / nes, Chancellor, and Spencer, Senator, that the bond was broken, as soon as the town became liable, or were bound to maintain the child, and need not delay bringing an action on the bond, until they had disbursed money in sup- port of the child. The indemnity consists in securing the town against charges, in which its birth and maintenance would in- volve the town, and the expenses, charges, &c., of the child, must be borne by the putative father himself, and all the ex- penses it creates, must be def/ayed by him, or the bond is bro- ken. 25. AbondconMuRRELL V. Johnson's admr. Oct. T. 1807.1 Hen. & Mumf. dilioned to tt t-> ^ rw be void on Va. Rep. 449. sm'spay Johnson, the intestate, was employed by Mrs. Murrell, to pur- ing all costs chase a slave for her. He purchased her of one Prichett, but and damag ,„ itii i-ii i-i es in conse before the slave was deli e el,sh- was claimed by a third per- ^'i|Jf"^l^„°^^,gSon, and Johnson refused to de'ivcr her, until Mrs. Murrell ex- doing an ecuted to him an indemnifying bond, which she did when the me'it^obtafn ^^^^'e was delivered. Tne third person sued Johnson for the ed against slave, and recovered : when this suit was commenced. the obligee for the act, The counsel for the defendant, moved the Court to instruct IS 21 Ol'f'U.oh • • of the condi ^^16 jury "that by law the plaintiff could not maintain his ac- tion.and an tion ao-ainst the defendant, unless she should prove an actual action will ° ' ' immediate discharge, or payment of the amount of said recovery, by the the bornh" defendant Johnson, to the plaintitf Pritchett, (the third person ;) BOND.— 0/ ihz action. 435 bu' the Co rt refused to give such instructions to the jury ; on the contrary informed them, that the judgment against Johnson, was sufficient to enable the plaintiff to recover, without proof of the payment of the recovery." Verdict for plaintiff, and appeal to this Court. By the Court, Tucker^ J., judgment aff.rmed. 26. Ludlow, assignee, v. Van Camp. Sept. T. 1823. 2 Halst. N. J. Rep. 113. S. P. Marston v. Seabury. 2 Penn. Rep. 702. Debt on a bond. The third count was f)r money lent. An action '' ol assump It appeared the bond was dated, June the 5th, 1795, and ^.'"•^'^'"o'^ , , ill r ^^ • • ''^ upon a consequently barred by the statute oi limilations, but the plain- promise to tiff proved an express promise to pay the bond within the statr j^'^^.^^*^^"^ ute ; and the question was, wdiether the bond was a sufficient ^^e statute consideration, to support an action, upon an express promise to lions. pay it? Kirkpatrick^ C. J., heM that it was a sufficient consideration, and that the plaintiff w^as entitled to recover, and cited Hawkes and wife v. Saunders, Cowp. 289 ; Assignee of England v. Eng- land, Burr, 2628: and Salk. 154. But Ford, J., and the other members of the Court, held, that the plaintiff could not recover — Vm.t every indebitatus assumpsit must state the cause, for which the debt accrued — and to say that the defendant is indebted by bond, is not a disclosure of the consideration. And that a promise to pay a specialty is void ; it is an attempt to turn a specialty debt, into a simple contract. 27. T ri /- ■^^ obligor Inhabitants OF Saco v. Osgood. April T. 1828. 5 GreenleaPs in a bondto Me. Rep. 237. ^---^ Debt on bond, conditioned "to save the town harmless from f'"".'^xpf"s ■,, , ■ es in rela all damages, costs, and charges that shall accrue and happen to tiontnpau said town, for and on account of the liability of said town, to E.'co^s be called upon to support and provide for poor persons, as w^ell "'I'di have as those that are chargeable to the state, and other towns, asdefend'inga those belonging to said town ; " and providing that, "in all ca- pellg^^.'fjfg ses, at his own charge, in the name of said town," he might ap-""^^" '^'^s pear and defend any suits respecting paupers, to final jtidg-i7befoir''' ment. and partly After the expiration of the five years, a suit was commenced time m^n against the town, for supplies furnished to a pauper, accruing li,°"^nd. 436 BO}^D.~ Remedy on. partly before^ and partly after the expiration of the term, and for the expenses in that suit, this action was prosecuted. Held by the Court, Mellen, C. J., that the action against the town, was one embraced by the terms of the condition ; and if the expenses are claimed to Have accrued within the term, an action will lie after the expiration of it, and the defendant is li- able for his proportion of the expenses. 28. Jansen v. Hilton. March T. 1812. 10 Johns. N. Y. Rey. 549. S. P. Barry V. Mandell. 10 Johns. Rep. 563; Kip v. Brigham. 6 Johns. Rep. 158. An Rciion Held by the Court, (the Chancellor and Senator Van Beuren mamta°iiied ?'^^^"§°P^'^^°"^' ^^^ ^^^'^^^^'^S ''•"^^°''^^^^^') ^^^^ a bond to the by the sher sheriff, for the jail liberties, was in its legal effect, a bond of for the jail indemnity to him, and that he might maintain an action upon it, liberties, up ]3y showino; his liability for the escape of the prisoner, without on showino j o j i x hisliability proving payment by him. for the es cape, with qq out proving '^"' pnymenlby „ ' _ w^ him. Saunders V. Taylor. Feb. T. 1828, 18 Martin's Lou. Rep. p. 519. ^nKe^''' Held by the Court, Porter, J., that a bond given in a court of U. S. court the United States, on taking out a writ of error, may be put in may be su ... . . ed in a state suit m a state court. court. 30. Hacking v. Howard. May T. 1794. 3 Har. & M'Hen. Md. Rep. 203. Detinue Detinue on an administration bond. come with The question was, whether detinue was within the condition iwanadOf an administration bond. ministra ^'j^g court determined that the action of detinue did not come tion bond. . !•• ■ ^ j j •! Within the condition of an administration bond ; and gave judg- ment for the defendant. 31. ^bQ„jj,^ Kenner v. HoRD. Fall vacation, 1807. 2 Hen. & Mum. Va. be sold for Rep. 14. less than its . nominal a Held by the Court, that a bond may be sold for less than its aiTSon"^ nominal amount, and such sale will be enforced in a court of willlieuponij^^y if there be no fraud or usury. If. ' *' BOND.— 0/ th« declaration. 437 (B) Of the declaration. 1. JuLiAND v.'BuRGOTT, £T AL. Jan. T. I8l4. 11 Johns. N. Y. Rep. 6. Debt on bond, conditioned that the defendants should secure Negativing . , . . -J. the words certain lands, in the quiet and peaceable possession of the plaintm, of the condi " Free from all legal incumbrances, either by deed or niortgage/J°'^j°^j^^j^ or otherwise, now in existence and binding upon the. premises." not a good And it was expressly agreed and understood, that the defendants of breaches were "to see the lands free from all incumbrances, as above '" ^^'^®^'* ' ration. mentioned, by the 20th of February, 1812." Plamtift averred that the defendants did not free, or cause to be freed, the land from all legal incumbrances, either by deed, mortgage, or other- wise, then in existence, and binding upon the premises, by the 20th of February, 1812, &c., in the words of the condition. Demurrer and joinder. Per Cur. The declaration is bad in substance, in not assign- ing a sufficient breach. The breach is, that the defendants " did not free the land from all legal incumbrances, either by deed, mortgage, or otherwise, then in existence, and binding on the premises, by the 20th of February, 1812." The condition spoke hypothetically of legal incumbrances, either by deed, mortgage, or otherwise, then in existence. It did not refer to any particu- lar incumbrance, nor was any alluded to, in the recital of the condition. By the generality of the terms, and by the words, " or otherwise," it is most apparent that the bond was taken for greater caution, and to guard against any such incumbrance, which might then be in existence. Cooke v. Graham's admr. Feb. T. 1805. 3 Cranch's U. S. Rep. 229. The declaration w^as in debt, on a bond dated the 3rd of Oct., A variance 1799. On oyer, the bond appeared to be dated the 3rd of Jan., between the ■jiyoQ bond declar ed on and Per Cur. MarshalL C. J. The "plaintiff declares upon a^hatproduc cd Oil over bond, dated the 3rd of Oct. ; and upon oyer, the bond appears is fatal, to bear date the 3rd of Jan. preceeding. By the oyer, the bond is made a part of the declaration. There were several plead- ings, and among the rest, a bad declaration, a bad rejoinder, and a special demurrer by the plaintiff to this bad rejoinder. When the whole pleadirtgs are thus spread on the record by a 438 BO"^!).— Remedy o«. demurrer, it is the duty of the court to examine the whole, and go to the first error. When the special demurrer is by the plain- tiff, his own pleadings are to be scrutinized, and the court will notice w^hat would have been bad upon a general demurrer. The variance between the date of the bond declared upon, and that produced on oyer, is fatal. Smith v. Cooper. Oct. T. 1819. 6 Mum. Va. Rep. 401. Itisunne j-jg^^^ ^^ ^ constables bond, brought in the name of the Lieut. cessary to v n avernon Governor. payment in . i i • i t «. the declara In declaring upon a bond given by a public officer to the gov- officia'/botid ^mor and his successors, conditioned for faithful performance tothegov of official duty, it is not necessary to aver non payment of the successors, penalty to the obligee, or his successors, by any of the obligors. It being a public bond for the benefit of others, neither the ob- ligee, or the governor was competent to receive any money un- der the provisions thereof, and, therefore, it was not necessary to aver the non payment thereof to him in the declaration. 4. Fitch v. Lothrop, *et al. March T. 1784. 1 Root's Conn. Rep. 88. ona"pro'° Action upon an administration bond, the declaration averred bate bond, |]^at the defendants had never paid the penalty, or performed the the brecXch i • • n i i i must be pos condition of the bond, itu'elyaver Demurrer to the declaration. The averment is, that the defendants have never performed the conditions of said bond ; v\^hich is a negative pregnant, for the administrator may hare performed the condition, although the defendants have not. Judgment that the declaration is in-' sufficient. 5. Newcomb v. Wing, et al. Sept. T. 1825. 3 Pickg. Mass. Rep. p. 168. S. P. WiLDRiDGE V. Patterson. 15 Mass. Rep. p. 148; Freeman v. Anderson. 11 Mass. Rep. 190. T . ,• Debt on an administration bond. Plea performance of the In stating a _ _ -t^ ^ breach on condition. Replication that the administrator did not inven- trationbond tory land which the intestate, in his lifetime, to defraud his that the ad creditors, conveyed to the administrator. To this the defendant minislrator •' did noi in demurred. BOND.— 0/ the declaratim. 439 Per Cur. Parker, C.J. It was made a question, whether yentory . . , , land. It upon the facts set forth in the replication, admitting them to be should be a rightly pleade ', the plain'.ifT is entitled to his action. The s ub- ^^[[^j^'l^^^^^.j stance, of the replication is, that certain real estate of the in. edge of it, ,, ^^ ,, , ,, i--i,-Tri' and was a testate had been fraudulently conveyed by him m his litetime^ pa,.ty ^oihe and that being liable by law to his debts, it ought to have been^^'^ud. inventoried; and the breach of the bond alleged in the replica- tion, is the not inventorying this real estate. It is doubtful, at least, whether the replication is sufficiently particular. It does not directly charge the defendant with being a party to the fraud, nor with his knowledge in any other way, though it is strongly implie ! in the replication. Vide Drinkwater v. Drinkwater, 4 Mass. Rep. 357 ; Mansfield v. Patterson 15 ]\Iass. Rep. 491, Replication bad. 6. The ordinary of Orangeburgh v. Phillpot, et al. April T. 1795. 1 Bay's S. Ca. Rep. 462. Per Cur. In an action of debt on an administration bond, a a general a p;eneral averment that the administrator did not pay oif debts vennent ,. , . I T-ki • 2.-CC • 11-1 ■ tliatlhead according to law, is good. Flaintiri is not obliged to assign ev- ministraior ery specific breach ; but the defendant is bound to show how 1'^""''P^^ he disposed of every part of the effects, &c. cording to law, is suffi _ cient with out assign ing every Karthatts v. WINGS. June T. 1830. 2 Gill & Johns. Md. Rep. splcific"^ 430. S. P. Marston v. Hobbs. 2 Mass. Rep. 437; breach. Karthaus v. Owings. 6 Har. & Johns. Rep. 134; Wall v. Wall. 2 Har. & Gill's Ren. 79. Vide Ju- LiANDv. BuRGOTT. aiite, p. 437. contra. Debt on an appeal bond. Inassigning A judgment being obtained against Karthaus, he appealed, ^''^^^'^^s''- ,. . '^^^ IS sufficient and filed a bond, conditioned to prosecute his appeal with effect, to negative and to satisfy the damages and costs awarded by the county, [{jg^^°^''^^°^ and appellate courts. Judgment against him on the appeal. ^^^'■■ Held by the Court, Buchanan, C. /., that a replication, assign- ing as a breach "that the defendant did not prosecute his ap- peal with effect, to the damage of the plaintiff, " &c., was suffi- cient upon general demurrer, and was a good answer to a plea of general performance. In assigning breaches, the rule is that they may be assigned by negativing the words of the cov- enant. It is not necessary to state matter which would come more properly from the other side. Vide Ferguson v. Cappan, 6 Har. ^ Johns. 401. 440 BOSB.— Remedy on. S. Drummond v. Crutcher. Oct, T. 1796. 2 Wash. Va. Rep. p. 279. T^TVd* This was an action of debt by the plaintiff, as assignee ciaied as as of H. Crutcher, against the defendant, upon an assigned bond. it^ppeared ^^ appeared that H. Crutcher endorsed the bond to one Fletch- ihebond gj. whose name was stricken out, and the plaintiff's substi- had bsen as signed loan tuted. son, but P^^' Cur. The declaration states a bond given by the defend- which as ant, to H. Crutcher, and an assignment thereof to the plaintiff, had been It was, therefore, necessary that the bond produced in evidence, heid'novari^^^^^*^ answer this description. I think it did so, notwithstand- nnce. ing the appearance of a prior assignment, which being erased, produced in itself no variance between the case alleged, and that proved. 9. Gordon, et al. v. Brown's exr. Nov. T. 1808. 3 Hen. & Mumf. Va. Rep. 219. The assign p^^. q^^,_ j^^ action Cannot be maintained by a mercantile mcntmust _ •' be averred company, on a bond payable to A. T., his heirs, &c., withqut ration. ^^ "^ averring in the declaration the said bond to have been given to A. T. for their use, or to have been assigned to them by A. T., or by his legal representatives. And vide Rector v. Scantland, Hard. ^'149 ; Linch v. Barr, Pring, Deer. 197, where the Court held, that in declaring on an obligation assigned, it must appear by the declaration, that the debt has not been paid to the assignor, and he must aver due diligence, and the defendant may traverse the fact of diligence; Campbell V. Hopson, 1 Marsh. Rep. 228; Smallwood v. Woods, 1 Bibb. £47. 10. Gordon, et al. v. Brown's exr. Nov. T. 1808. 3 Hen & Mumf. Va. Rep. 219. S. P. Craghill v. Page. 2 Hen. & Mumf. Rep .446; Baid v. Mattox. J Call's Rep. 257. bei^veen^ I" ^^^'^ case the bond was declared on, bearing date on the 4th the bond Jan. 1773, and on error, the general verdict for defendant was and lae dec • i ,-ni i i • i • i • i i • laraiion is Sustained. I he declaration does not show any right in the pJain- fiiial. ^j^ ^Q brinsc the action. BOND.— 0/^Ae declaration. 441 IL Gordon, et al. v. Brown*s exr. Nov. T. 1808. 3 H. & Mumf. Va. Rep. 219. Per Cur. The assignee of a bond cannot sue as obligee, but And^ tljc^ m must set forth the assignment in his declaration. nm sueas o'jligeewith out aver rin^ it in 12. his declara Laidler v. The State. June T. 1828.2 Har. & Gill's Md. "o"- Rep. 277. S. P. "Brent, et al. v. Davis. 10 Wheat. Rep. 395 ; Corporation of Washington v. Young. 10 Wheat, 406; M'Mechen v.- The Mayor of Bal- timore. 2 Har. & Johns. Rep, 41. Debt on a bond, with a collateral condition. onaVond!" After the declaration, the parties entered into an agreement, the cause of ' _ ^ action must ^vhich was signed by their counsel, as follows : appear by- Debt. Performance. Replication for tobacco, due from the [||°,^^fjy • defendant's intestate ; and insimul computasset as administratrix, the assign , . , , . . . T-> • • 1 •! ""lent cf and promise by administratrix to pay. Rejoinder, tzoti a^5U7?7.;;5er, ij,. gad les in and non assumpsit infra ires annos. General surrejoinder and '■'.^^ ?'h'°* issue." Verdict for plaintiff. v/hereeve- Per Cur. Dorsey., J. The agreement signed, which ^vas intend- ^^^^^^^^^^^^ ed to supply the want of regular pleadings, is so informal, un- the assign certain, and defective, as to be wholly iusufficient for that pur-bi^each s is pose. To sustain a iudcrment on a testamentary, or other bond,*^" ^^^'^^^'^ 1 J D J ^ ' pcreroga with a collateral condition, obtained on verdict, by default onion. nil diciti <^ f"-<^se stated, or by confession, not ascertaining the sum, on payment of which the penalty of the bond is to be re- leased, the replication must set out a cause of action ; it must appear on the roll, with sufficient certainty, by way cf assign- ment of breaches. Afterwards, in the same term, a case upon the same bond came before the court, in which there w-as the same agreement as to the pleadings, but the defendant had confessed a judgment to the plaintiif, to the amount of the penal- ty of the bond. This- confession withdraws the plea of general performance, and admits every thing which the plaintiff desires to establish, or could be required to bring to issue by regular pleadings. Could it then be necessary — is it consistent with any rule of pleading, that the plaintiff should file a replication, the statements in which are neither an answer to, nor a denial or avoidance of, any matters alleged by the defendant } Where the Court may be called on to pronounce an opinion on the plaintiff's right to recover, where the intervention of a jury is Vol. II. 66 442 BO^D. —Remedy on. necessary to assess the damages sustained, there an assignment of the bleaches, either in the declaration, or by way of replication or entry on the roll, as the case may be, is indispensibly neces- sary. But where every thing is confessed, where nothing is left for the decision of either court or jury, the assignment of breaches is an act of supererogation. (C) Pleas and defences to. 1. MouNSEY V. Drake & Goff. Jan. T. 1813. 10 Johns. N. Y. >-n , I^ep. 27. vVhere the obligor is to Debt On a bond, conditioned "that if the defendants should pay doanact.a^j^g l^i^tjff the sum of $80.79, top-erher with the costs of a specinc per _ ' . . ibnimnce suit then pending in the Court of Common Pleas of St. Law- shown, rence county, in favour of the plaintiff, against Levi Tuttle, on or before the first Tuesday of June next ensuing the date of the said bond; or if the said Levi Tuttle should pay the said sura, or surrender himself into the custody of the sheriff of the said county of St. Lawrence, in the said suit, on or before the said first Tuesday of June next ; or if it should so happen that the said Levi Tuttle should die on or before the said first Tuesday in June, then the obligation 1o be void, &c. Defendants offered to prove that Tuttle was at the court-house in St. Lawrence ■county at the time specified, and appeared before the sherifT, and offered to surrender himself into his custody, agreeably tc^ the condition of the bond. Verdict for plait, tiff. Motion to set it aside and for a new trial. Per Cur. Tuttle was bound, by the condition of the bond, to surrender himself into custody. He was to perform a specific act, and the defendants were bound to see it performed, or pay the money. The plaintiff was not to do any act, to facilitate the surrender. It is not sufficient that the ^'^'j^"j^j^^ ting of the court, to which the appeal was made, the plaintiffi" bar that in replevin, who was principal in the bond, died. pal died be D„„ 1 • • 1 fore I lie sit emurrer and joinder. tingofihc Per Cur. Parker, C. J. The question in this case is, wheth-*^'^,".''',''°, ■ 1 _ _ ' u Inch the er the matter contained in the plea is a sufficient bar to the a c- appeal is tion- And we are satisfied that it is. good!' 9. United States v. Gordon. Feb, T. 1813. 7 Cranch's U. S.ggonan Rep. 287. embargo bond, it is a- Pev^Cur. It seems it is a good defence to an action upon an good de embargo bond, that it was given for more than double the value ihe*^master of the vessel and cargo, and that the master was constrained to ^^■^^^''°'] . r ' \ r 1 Strained to execute it by the relusal ot a clearance. give it by the refusal -in of a clear ance. IS no HiGGs V. S.MiTK. Spring T. 9821. 3 Marshall's Ky. Rep. 338. ^^^^^ Held by the Court, that the obligor cannot set up fraud in de-"^^**^"^® fence of his bond, if he knew of the fraud before he became obligor bound. ''f'^'^^'u when he be 1 -j came bound Cutler v. Dickinson. Sept. T. 1829. 8 Pickg. Mass. Rep. 286. Held by the Court, that the obligors in an administration bond an adminis are estopped by it to deny the appointment of the administrator. ca^iIII,"d°"'^ ny the ap 12. pnintment of the ad LocKHART V. Roberts. 3 Bibb's Ky. Rep. 361. mimstrator. Debt on bond. A plea that Held by the Court, that a plea in bar, that the paper was a w^'^Slk 446 BO'S!). —Remedy em. ed isblfd" ^^^"1^ when signed, and so is not defendants deed, is a bad plea, as the instrument takes effe'ct from delivery. 13. The Peop?.e v. Ja!-, et al. Feb. T. I8li, 7 Johns. N. Y. Eep. 331. cfnonest Debt on a bond executed by the father of the defendants, as factum iho. ^^^^ ^^ ^j^^ sureties of Christopher Tanpen, a loan officer. suiety may ' I i 5 show laches The loan officer had nefflected to pay into the treasury the on ihe part ii- -i i of the oL)li money by him received. The deficiency began as early as 1791, ^^^' and continued to 1798. No entry of any deficiency was made by the board of examiners of the loan officer's accounts till the year 1795. The defendants' ancestor died in the year 1794, and in the year 1798, a suit was commenced against the loan officer, who was then solvent, but was not prosecuted to judgment, nor were the arrears due by him paid up. Plea ?io7i est factum^ and non damvificatus. Per Cur. Thompson, J. The question is, whether the defen- dants can avail themselves of these facts, in defence, in a court of law. The facts of the case being ascertained, the rule of law must be the same in this court, as in a court of chancery. The doctrine of the case is, that whether the surety has been discharged or not, is a legal principle, and that if the form of the security, and mode of proceeding at law, would author- ise an inquiry into the fact, whether security or not, the de- fence would be the same at law, as in equity. The defence, in my opinion, is admissible al law. And the Court is of opin- ion, that the plaintiffs are chargeable with the consequences of the neglect, or breach of duty, and the defendants are enti- tled to judgment. 14. Stevens v. Judson, et al. May T. 1830. 4 Wend. N. Y. Rep. 471. S. P. DoRLON V. Sammis. 2 Johns. Rep. 179; Vrooman v. Phelps. 2 Johns. Rep. 177 ; Dale v. Roo- SFVELT. 9 Cowen, 311. The obligor Debt on bond. The defendant pleaded false and fraudulent pleaTfalse representations, made by the obligt-e in bar of the action. The represcn'ii judge ruled the defence could not be sustained atlaw, and refus- tions made , , . . , . ,. , . it t- j r i ' by ihr obii ^^ lo receive evidence m support oi the plea. Verdict lor plain- gee in bar tiff, and defendant accepted. of the ac ^ tion. Per Cur. Savage^ C. J. I confess I can see no very good reason why this defence sh-ould be excluded from a court of BOND.— Evidence. 447 law, and the party sent into a court of equity ; but so the point has always been decided. The facts contained in the plea, constitute no valid legal defence. Judgment for plaintiff. 15. Jones v. Turner. Spring T. lS-24. 5 Little's Ky. Rep. 147. Per Cur. In an action on a prison-bounds bond, a plea, that Pj^^'^p^ieal, the principal was under duress, when the bond was executed by an aciinn , . , , . . . . , , J .1 -• « J on a ni'ison him, and his securities, IS a good bar t(> the action. At com-i^nnnds mon law, a bond executed by sureties, whilst under no duress, '^,'^'"'' ^'*' ' _ -^ ' _ . . ihe sureties is valid as to them, though it may not be valid as to the princi-c-mnotavail 1 themselves pal- ofil. to pa I " (D) Evidence. 1. Atkinson V. The exrs. of Scott. May T. 1793. 1 Bay's S. Ca. Rep. 307. Debt on a bond. The obligor The defendant proposed to examine a witness, relative to an'^;^"""'' ^ I _ ' _ siiow by pa agre:ement between Scott and the })laintiff, concerning how the rni evidence bond was to be paid. This testimony was objected to, because J^i,^^)!i,^gi'.j^ it had a tendency to alter the face of a deed, under seal, by pa-i'^-'^t' ^^'^s •^ ' ' J 1 be paid. rol testimony. Per Cur. This kind of testimony, which is intended so mate- rially to alter, or vary a deed, cannot be admitted, because it would he productive of all the mischiefs and uncertainties which the statute of frauds has so wisely guarded against. 2. Morgan v. Furst, et al. Jan. T. 1826. 16 Pvlartin's Lou. Rep. p. 116. The sheriff levied an attachment upon tobacco, and the de-So an obli fendant gave his bond to the sherifT, to discharge it. F"'" Vl*^ , ° _ ' o bond f'->i- the Martin., J. We think the defendant, having, given his bond '^^'eascof to the sheriff, who delivered him the property attached, cannot {•id'icd is es urge that the plaintiff has neither leo;al nor equitable interest. '^r^'^^'^, ''° , . o T deny the The defendant has given him by his deed, a legal rio-ht, and plaintiff's the delivery of the goods, raises an equity; in whatever mode "'^'^'^^'" a party binds himself, he is, by our law, hound. 448 BOSD.—Rcmedi/ on, 3, Catton v.. Beasley. June T. 1S13. 2 Murphy^s N. Ca. P^p. p. 259. Thelossof Per Cur. Hall, J. In an action at law upon a bond^ the Jannorbe P^'^i^.^iff shall not be permitted to prove the loss. He may proved by prove the loss by disinterested \Yitnesses, but he shall not be himself. Heard in his own benalf, unless the defendant can also be heard. This can only be done in a court of equity; and there, if:; de- cree be made for the complainant, the Court can compel him to indemnify the defendant against the lost bond. 4. Pendleton v. Bank of Kentucky. Fall T. 1824. 1 Monroe's Ky. Rep. 177. Tn nil fiction -.^ , , ti^-.,? •. i i i • • r • • n^ainsisurc Held by the Court, Juiiw, J., that the admissions of a pnner- ficfa?boncr''P^^' ^^'^^^^ '" office, (ca&hier in a bank,) are good evidence theatlinis against the Sureties on the bond. sions of ilic principal ^ are evi O. ^e"«- Mitchell v. Gisbes 1802. 2 Bay's S. Ca. Rep. 472. So in an nc Held by the Court, that in an action ac^ainst one obligor- on lion a£;:unst • • , ", 111 ,1 , it one obligor, a jomt and several bond, any payment by the other obligor, on ^|^i'J''',g|;, account, or any set-off in his right, may be given in evidence, or bond, a pay may be set off against the other. ment by the other obli _ gor may be '^• dem:e.'"^^'KiP V. Brigham, et al. Aug. T. I8IO. 6 Johns. N. Y. Rep. 158. S. C. 7 Johns. Rep. 168; Binder v. Fromber- GER. 4 Dall. Penn. Rep. 436; Hamilton v. Cutts. 4 Mass. Rep. 439. A recovery Debt by the plaintiff, as sheriff, against the defendants, on a against the . •' .... ' o ' sherifFfor bond given for the jail limits. an escape ,_, ,.._ . ,, . ^ • c ^ isconcUi 1 he plai-ntifi gave m evidence, a recovery against him for the siveeyi escape of the defendant Brig-ham ; that he gave notice of the dence in a ^ &> ' o suit on a suit, to the defendants, and they co-operated in the defence, gainst ihe The judge ruled, that the record of the recovery in that suit, aiids^uelies^^'^^ ^°"*'^^'^^^'^ ^?^^^"^^ ^'^ defendants in this suit, unless they could show fraud, or collusion. Verdict for plaintiff. IMotion to set asiJe the verdict. Per Cur. There was no misdirection on the point. The bond in this case was, in effect, a bond of indemnity ; and the re- covery, after notice to the defendants, and their assuming the • defence, was conclusive that the plaintiff had been damnified. BO'S!).— Remedy on. 449 (E) Of the competency of a party to a bond, to ee a WITNESS. 1. Oliphant v. Taggart. May T. 1792. 1 Bay's S. Ca. Rep. p. 235. Where a „ „ , ., , . • r. -, , 1,1 \vitiiesstoa Per Cur. Proof of the hand writing of a witness to a bond, b^^^jisf^ead who is dead or gone beyond sea, is good and regular, in order to "'"^'^^^^^fQf let in the plaintiff to prove the hand writing of an obligor. his hand wriiii^g is fv ^ proper 10 let '^^ in proof of Hautz V. Rough. May T. 1816. 2 Sergt. & Rawle's Penn. Rep. ;|^^/;^p^;^ 349. S. P. Sigfried V. Levan. 6 Sergt. & Rawle's bond by the Rep.308; Clark v. Sanderson; 4 Binn. 192. °''''°'''- "Debt on bond. Seconda.y I pi'ool will Held by the Court, Tilghman, C. J., that evidence of the hand not be re writing of the obligor will not be rer-eived, where the witness to fj^g'^jjg^f^ the bond is livinsr in the state, thouo-h in a distant county. tion of a ^ 5 D J b()nd,n-herc the witness 3. resides in Stow v. Wyse. July T. 1828. 7 Conn. Rep. 214. the state. DassetL J. Without multiplvins; authorities upon a point ren- A bond op ,, , ^ -^ ? . r^ . ., ^eratesasan dered clear by numerous cases, it is sutncient lo state, that estoppel not where a party has solemnly admitted a fact by deed, under his '^Jl'b'jo^ hand and seal, he is estopped not only from disputing the deed the deed it itself, but every fact which it recites. ery'fact which it re 4_ cites. Lane et al. v. De Peyster. Jan. T. 1829. 19 Martin's Lou. Rep. 372. Per Cur. Porter, J. On behalf of the defendant, the only Surety to a testimony offered to establish the purchase of the cotton, in ^o1"bond market overt, was that of the surety on the bond, eiven to obtain a^-^.""ot be a 1 r ii • 'i ■ 1 1 T • -/T. 1 T 1 . 1 Witness. release irum the sequestration, which the plaintm had obtained at the commencement of the suit. The competency of his evidence has been brought before us by a bill of exceptions, and we are of opinion, he should not have been permitted to testify, because, in the event of the cause being decided against the de- fendant, he became immediately and directly liable on the bond. The case cannot be distinguished from that of bail. 5. LovETT, ET AL. V. Adams, ET AL. Oct. T. 1829. 3 Wend. N. Y. Rep. 380. Debt on a joint and several bond, against part of the obligors, g^i'^in^a ^ Vol. IL 57 450 BOND. — Siun rccoverahh o)i. joint and Held by the Court, Sava^rc, C. J., that a co-oblicror, who bond not sii was iiot Sued, was a proper witness to prove the terms and con- rcltTa""" ditions on which the bond was executed. competent witness. X. OF THE SUM RECOVERABLE ON A BOND. 1. Smith v. Smith. May T. 1830. 4 Wendell's N. Y. Rep. 468. S. P. M'NiTT V. Clask, 7 Johns, Rep. 466; Spencer V. Tii.DEN.-5 Cowen's Rep. 149 ; Dennis v. Cummins. 3 Johns. Cases, 466, A sum spe Debt on a bond, conditioned that the defendant, (a physician) measure of would not locate himself, and practice his profession, within cer- clanuipesto ^^j,^ ])rescribed limits, or that he would pay the plaintiff Five Hun- be iviicl by ' ' . apartyfiiil dred Dollars for each and every month that he should practice, pcffomi^^ The defendant visited patients tvidce within the limits prescribed, fiiiceofan The judge charged the jury that the sum specified in the condi- considerctl ^ion of the bond must be considered as liquidated damages, and asliquidai ^^t a Denaltv. eu cianiages '■ •' and noi a Verdict for plaintiff, penally. ^ Per Cur. Marcy, J. Where it is agreed, that if a party do a particular thing, a stipulated sum shall be paid by him, there the sum stated may be treated as liquidated damages. This rule is strikingly applicable to this case ; in truth it is not a case of any difficulty. It is very evident from a bare perusal of the bond, that the intention of the parties was, that the $500 for ev- ery month's practice, in violation of the agreement, should be the damages that plaintiff should receive or recover. The de- cision of the judge was correct. 2, Robeson, admr. v. Whitesides. Sept. T. 1827. 16 Sergt. & Rawle's Penn. Rep. 320. Where ^"^^ Bradford entered into a bond for $ 1000, conditioned that thereisa certain incumbrances on real estate, should be removed in nine unequivocal i^oiT^lis. Judgment was entered up on the bond, and it was agreement, agreed the merits of iudo:ment should be tried, whether the im- ilie pay ° .> ^ ' mentni a $1000, was a penally, or stipulated damages. certain sum, 'ro-iii^ itisliquidat Per Cicr. Rogers, J. Stipulated damages can only be where and not^a*^"' ^^^^^ is a clear unequivocal agreement, which sti[)ulates for the penally. payment of a certian sum, as a liquidated satisfaction, fixed and agreed upon between the parties, for the doing, or not doing cer- tain acts, particularly expressed in the agreement. The party BOND. — Sum recoverable ^on. 451 may contract, and sometimes does, that on the non-performance of a particular act, he will pay a stipulated sura, and in such cases, that sum is the measure of damages. Where the contract has been fairly entered into, not partaking of fraud or oppres- sion, a Court of Chancery will not relieve, nor are juries per- mitted to inquire into the actual loss, but are bound by what the parties themselves have agreed upon. Where however, there is such an agreement, to be in the nature of express damages, it would be easy to say so in express terms, and this would re- move all difficulties of construction. The contract should be express, or it should be a necessary implication from the nature of the transaction itself. Where the non-performance can be compensated with money, of which a jury may judge, ii is most consonant to reason, and best comports with the understanding of the parties, that the damages should be commensurate with the loss actually sustained. I am not able to understand what there is in this bond, different from the ordinary case of a bond with a condition to perform some collateral act. If this bond should be construed as a case of assessed dnmages, there are but few cases in which we might not be called on for the same construction. 3. Arnold v. Bailey, et al. Oct. T. 1811, 8 Mass. Rep. 145. The Court held, that in an action on a replevin bond, the The neas plaintiff was entitled to recover the value of the sfoods renlev- "'■^"^'^''"" . . ;3>-.,jiv,j^ii_, ages on a ied, with the damages and costs recovered, and interest on such leple^'i" damages and costs, from the date of the judgment in replevin ihooo^ds to the time of renderino; iudo-ment on the bond. replevied Vide Cherry v. Mann, Cooke's Ky. Rep. 269, where the damages Court held that on a penal bond with a collateral condition, the f.-'of^^'jl'ie^^ obligee can recover no more than the penalty, unless in cases ^'^'e<>f the where by the express agreement of the r arties, the penal part '" °™'^"'* of the obligation is to become a real debt. 4. Bank or the United States v. Magill, et al. April T. 1824. 1 Paine's C. C. U S. Rep. 669. Per Cur, Thommoii^ J. I am inclined to adopt as the better^ , , ,,,,,',., , . ' On a bond opinion, that where the bund with a penally is given for the per- fw the per forraance of covenants, although damages may have been sus-c 'veniiriV^ tained to a greater amount, yet the recovery must be limited to ''^"^ '^'""•'^S the penalty. That becomes the debt due, and upon which in- finS io° terest, according to circumstances, may be added. And it jg il-^ penalty. 452 BOND. — Sum recoverable on. peculiarly proper, that sureties should not be made liable for damages beyond the penalty. Paine v. M'Intier. Sept T. 1804. 1 Mass. Rep. 69. in'aSnS I" ^his case interest was nllowed on an administration bond traiion from the time that the uulp-e of probate passed his decree, till bond will ,. IT f .V • 1 ^ be allowed the rendition oi the judgment. from the time of the P deciee. "• Harris v. Clap. 1804. 1 Mass. Rep. 308. S. P. Smedes V. HooGHTALiNG, ET AL. 3 Caine's N. Y. Rep. p. 48. Interest be Debt On an arbitration'^bond. The arbitrators awarded a sum Vond the i • i , . , , . , ^i i penalty of v.'hich, together witn the interest, amounted to more than the the bond j penalty of the bond. And the question was, whether the judg- covered. ment to be entered could be for this sum. Per Cur. Dana, C. Jt Interest beyond the penalty of a bond may be recovered in the shape of damages, even against a surety. Sewall, J. The penalty and interest from the demand must be the measure of the judgment, not exceeding however, the sum awarded, and interest upon it from the time of payment, ac- .cording to the condition of the bond. Strong, J. What is the law as to going beyond the'penalty ? The law, as I understand it, says, that every man, who binds himself in a penalty, is liable to pay not only the whole penal- ty — the debt, but also the legal interest of it as damages for the detention. This rule of law extends to all cases where the con- dition of the bond is for the payment of money — or where the value of the condition, if I may so express it, is equally capa- ble of being ascertained, as though the sum had been expressed in the condition, which is this case. 7. Smedes v. Hooghtaling, et al. May T. 1805. 3 Caine's N. Y. Rep. 48. Andwheth The question in this case was, whether the interest could be er It shall calculated beyond the penalty, be or not, is j i j a matter of Per Cur. Kent, C. J. On a review of all the decisions on -this subject, the court think this rule ought to be adopted : That interest is recoverable beyond the penalty of a bond. But that Damages aie recovera BOND. — Sum recoverabU on. 453 the recovery depends on principles of law, and is not arbitrary, ad libitum discretion of a jury. Waldo v. Forbes. Sept. T. 1804. 1 Mass. Rep. 10. This was an action of debt on a bond, in which judgment was, rendered for the whole penalty, to stand as sefurity for future ble up to breaches of the condition. The question was, whether damages rendnion of were to be assessed up to the commencement of the action, or jjjgjj"*'^ to the time of rendering the judgment. The Court ruled, that damages were to be assessed for all dam- ages sustained, previous to the rendition of the judgment — and will not restrict the plaintiff to such damages only, as were in- curred at the time of the commencement of the action. 9- Bawnev. Hallet, Feb. T. 1804. 1 Caine's N. Y. Rep. 518. Judgment had been signed for the whole penalty of a very Although large bond, on account of the breach of condition, in non pay- 1" ^™en for ment of the interest. On motion, the Court ordered that exe- the %vhole , , , 1 • 1 » penalty, ex cution stay on payment of interest, and costs, the judgment, ecution will however, to stand as a security for the debt. onpS'mcnt of interest 10. 3.nd costs. Clark, et al. v. Bush. Aug. T. 1824. 3 Cowen's N. Y. Rep. p. 158. S. P. PaYxNE v. Ellzey. 2 Wash. Rep. 143 ; United States v. Arnold, 1 Gall. U. S. Rep. 348; TuNisoN V. Cramer. South. Rep. 498; Fairlee v. Lawson. 5 Cowen, 424. Per Cur. Savage, C. J. The weight of authorities, I think Nothing . . - ^ 1 , • -11 1 1 l^ • moie than IS in favour of the doctrine, that m debt on bond, nothing more Uie penalty than the penalty can be recovered ; at any rate, nothing beyond ^^^dmierest that and interest, after a forfeiture, even against the principal coveied in obligor. It is clear that the extent of the liability of the surety J|; ^^^^J|Jj"j_ is the penalty of the bond.* Vide Graham v. Bickerings 4 Dall. Rep. 149 ; 4 Yeate'^s Rep. 32; S. P. Harris v. Clap^ 1 Mass. Rep. 308; Perkins v. Lyman^ 11 Mass. Rep. 83; Bank United States v. Magill^ 1 Paine''s C. C Uep. 661 ; Carter. Carur^ADaifs Rep. 30. * On the forfeiture of the bond or on its becoming single, the whole penally was formerly recoverable al law, but the courts at an early period interposed, and would not permit the obligee to take more than in conscience, he was entitled to receive, viz. : his principle, interest and expences, in case the iorfeilure accrued by the non- So in Con neciicut. 464 BOND. — Of the sum recoverable on. 11. BoNSALL V, Taylor. Nov. T. 1821. 1 M'Cord's S. Ca. Rep. p. 503. S. P. Admrs. or Smith v. V^anderhorst, exr. OF Shacki-Eford. 1 M'Cord's Rep. 328. ThR plain The questions in this case were, 1st. Whether, in an action tiffin ail ac on a penal bond, the phiinlifT can recover more than the penalty nalbond when the interest exceeds it? 2nd. If he cannot, whether he is cannot ic ,-,q| entitled to interest from the date of the iudgment to the cover more .... J o than the time of its Satisfaction. penally, , . .„ . • i i where the Per Cuv. I he plaintiti is not entitled to recover more interest ex tj^jjp ^|-jg penalty of the bond. On the second question, the ceeds •'....'. '' . ' ' but in debt plaintiff is entitled, under the act of the legislature of 1815, to menihe can ^'i^t'''6st on his judgment, from its date up to the time of satis- recoveiin faction. terest be yond the penalty. 12. Carter v. Carter. June T. 1809, 4 Day's Conn. Rep. 30. Per Cur. The obligee of a bond " can recover no more than the penalty with interest thereon, although satisfaction may not have been obtained for every breach of the condition. 13. State of Maryland v. Wayman. June T. 1830. 2 Gill & Johns. Md. Rep. 279. S. P. Harris v. Clapp, et al. 1 Mass. Rep. 308. Debt on a bond against the defendant as surety, land. Per Cur. Earl., J. The question is, whether the plaintiff can recover a larger sum than the penalty of the bond. When the penalty of the bond is sued for, against the surety, the ut- most that can be recovered is the penalty, and legal interest thereon, by way of damages, pro detentione dehlti., from the time the debt is demanded. This is the import and efTect of his con-* tract, and his accountability cannot be stretched beyond it. The rule does not effect the rights of other persons, who may have claims which may be prosecuted on the bond. performance of other conditions; 4 Petersdorff, 598. And after forf';iture the pen- alty is tiie legai debt ; Thompson v. Hunt, 3 Lev. 368. And if tiiere be a contract to execute a bond for the paymcrit of a sum of money, without slating in what sum, the obligation shall be regulated by the value of the tiling secured ; Palfrey v. Pleas, Kid. 270. And in some cases the penally may be the criterion as to tiie sum to be recovered. As for instance, in an action brought by the trustees of a Charity, insliluted for Iho purpose of advancing money to put out apprentices; Anon- Loft. 555, BOND. — Sum recoverable on. 455 14. Levy v. Hampton. May T. 1821. 1 M'Cord's S. Ca. Rep. 145. Action on a bond. Plea, usury. ,^ '''?"'^ . •' beaiine; in It was contended, that an agreement to pay interest from a t^'est from time anterior to the date of the bond, was, in effect, to secure the le'-ior to its payment of more than seven percent, per annum. date is not ^ * ' ^ usurious. Per Cur. Colcock, J. As to the plea of usury, it is sufficient to observe, that nothing is more common, or more just, than that a bond which is given sometime after a purchase made, should bear interest from the time of purchase. 15. Fairlee v. Lawsox. May T. 1826. 5 Cowen's N. Y. Rep. 424. S. P. Alkndorf- v. Stickle. 2 Cowen's Rep. p. 412; Godfrey v. Vancott. 13 Johns. Rep. 345; Van Ant- w'ERP v. Ingersall. 2 Caine's Rep. 106; 2 Johns. Cas. 206. Debt on a bond, in the penalty of $400. The judge taxed jf^j^g ^^j supreme court costs for the plaintiff. It was submitted, v.'heth- ty'" =^ ''""d excsed S250 er the costs should not have been taxed at the common pleas s,ipieme rate only. Court cos'.s '' will be al Per Cur. The penalty is the criterion of costs, if that be ^°^^''^'^* more than $250, supreme court costs are allowed. 16. Fairlee, et al. v. Lawsox, et al. May T. 1826. 5 Cowen's N. Y. Rep. 424. Debt on a bond in the penalty of $400. Iti;e est will It was contended, that interest should be taxed for the plain- loucd tiffs up to the time of the iuc'o-ment. '^^Ilf'''^ '^,, r J fc> ^vill swell Per Cur. Interest is not allowable, where it will swell the 'he lecovc • ! 'T 'jeyond recovery to, or, in effect, compel the delendants to pay, m the ihe amount whole, an amount beyond the penalty of a bond, especially °^'''^P^"^^ against a surety, 17. Branthwait, et al. v. Halsey. Feb. 1827. 4 Halst. N.J. Rep. 3. S. P. M' Call v. Turner. 1 Call's Rep. 115 ; Fitzgerald v. Caldwell. 2 Ball. Penn. Rep. 215 ; Prescott v. Parker. 4 Mass. Re)i. 170; Willing & Francis v. Conseq-ua. 1 Peters' U. S. C. C Rep. 321. Debt on bond. The defendant gave a bond to the plaintiffs, tiig obligee 456 BOND. — When it extinguishes a debt. of a bond ^^j^q assiVned it to one Webb, and who had received several pay- fl,ssj°^ns It to * J B., and fearments on it from Halsey. The plaintiffs afterwards filed a bil}, in /-t n • l • ar t c l i. rious, upon "^^' ^'^'*' ^^ ^^ ^^^ usurious or a settlement or accounts, to a settlement take a bond or note for the balance due including interest, and offtccnunts, . . . ^ . to take a recei^ve interest on such bond or note. It is done every day la ^ , , the usual course of business: and is even directed bv law, in ev- balance due ' _ j ^ inclueliii^in ery case where a forth coming bond is taken, which is always recciveinter for the amount of the execution, including interest from the est on such ({^tg thereof until payment. - XL WHEN IT EXTINGUISHES A DEBT, 1. State V. Cordon. Sept. T. 1795. 1 Bay's S. Ca. Rep. 495. tinguishes^ Per Cw. Giving a bond extinguishes p7'ior simple contiacts. simple con tract. 2. Walton v. The United States. Feb. T. 1824. 9 Wheat U. S. Rep. 651. ffficia'lbond ^^^^ ^y ^^'^ Court, Duval, J., that the official bond, given by the receiver of public moneys, does not extinguish the simple contract debt arising from a balance of account, due from him to the United States; such bond is not given for the balance due, it is a collateral security for the faithful performance of the official duties of the officer ; and an action may be brought for the recovery of the balance on the account, and an action of BOOK ACCOUNTS. ^ 457 debt on the official bond to recover the penalty from the securi- ties. It is usual between the United States and their debtors to institute a suit for the balance of the account and an action of debt on the official bond to recover the penalty. . Uoofe Accounts.* (A) When an action of book account lies, p. 458. (B) When books are evidence, &c. p. 463. (C) Statute of limitations relative to. p. 471. And see tit. Limitations, statute of. * The law of book accounts, and how far they are evidence, and wlicthcr in- terest is recoverable upon them, in addition to the cases abridged in the text, may be thus shortly stated ; in New Hampshire, the accounts of merchants, farmers and others, are evidence of goods sold and delivered in common dealings, but no interest appears to be recoverable. (Fz^/e, t!ic cases abridged.) In Vermont, tho action of book account is in pursuance of a statute which directs a trial by jury, and the court appoint auditors, before whom tl'.e original book of entries are evi- dence, and interest is allowed after the period of time, after which the credit has elapsed, (ibid.) In Massachusetts, tradesmen's books are evidence for goods sold and delivered, and labour, even when in ihe^ plaintiffs hand writing, and may be verified by his oath ; 4 Mass. Rep. 457 ; and 2 Mass. Rep. 221 ; and even when the book has been kept in the ledger form, into which the charges have been from time to time transferred from a slate ; 13 Mass. Rep. 427 ; but the court are to judgc» whether the evidence is competent ; 2 Mass. Rep. 217. Iii Connecticut, by the Stat. 23. and 1 Conn. Rep. 32., an action may be maintained on a quantum meruit and a. quantum vaiebat in a book account, and the parties may prove them by their own oaths, and interest is recoverable from the time of tho expiration of the credit. In Rhode Island, by long practice in their courts, book accounts are evidence in the regular course of trade, and for work and labour done, and may be proved by the party's oath, that the books are regular and the entries are original. In New York, the rule of the common law prevails. In New Jersej', books of acocunt are admitted as evidence of debt, for goods sold, and work and labour performed, and the party's oath is received and interest is allowed from the closing of tho account and delivery of the goods ; Griffith's Reg. Vol. 4. p. 1301. In Maryland, book accounts are evidence wliere the demand does not exceed ten pounds currency, and by the act of 178.5, provision is n)ade for the verification of book accounts of non-residents, in other respects the common law prevails. In Virginia, book debts are not evidence, and it is discretionary with the jury to allow interest upon them ; 5 Mum. Rep. 21. In North Carolina, by the act of 1756, Ch. 8., book accounts are evidence for goods sold and services per- formed, and the party may prove them upon oath under j£30, and v.'hcther inter- est is recoverable upon book accounts is regulated by the common law. In South Carolina, the original entries of booK accounts are evidence, and the party may verify them upon osth, and the rule of the common law in respect to their drawing intere.st prevails ; Griffith's Reg. Vol. 4. p. 445. So also in Georgia. But are not admitted in Alabama, nor in Louisiana. The same rule prevails in Mississippi ; Griffith's Reg. Vol. 4. p. 670. In Tennessee, by a statute of 1756, books of ac- count are made evidence for goods sold or services performed within 2 years, and the party may prove them upon oath, if he cannot otherwise prove the services Vol. II. 58 458 BOOK ACCOUNTS.— TFAm a7i action lies. (A) When an action of book account lies. An action of book debt lies to recover money back paid on a note which has not been appli ed. Brown v. Talcott. Nov. T. 1783. 1 Root's Conn. Rep. 85. S. P. Prentice y. Philips. 1 Root's Rep. 103; Hurd \. Flemming. 2 Root's Rep. 132. The Court lield, in this case, that a sum of money paid to a person's clerk, on account of a note and not applied, may be recovered back in an action of book debt. And to re cover lotte ry tickets. 2. May, et al. v. Brownwell. Feb. T. 1831. 3 Vermont Rep. p. 463. Per Cur. Hutchinson^ C. J. A question is raised, whether lottery tickets can be the subject of an action on book. We think they may. If they are legally issued, they are of value as evidence of a debt ; or as evidence of a chance to receive a debt, large or small. It is difficult marking any line of distinc- tion between what may, and may not be charged on book, any more definite than this ; that articles of personal property sold and delivered, the title vesting in him who receives the property, and he becoming debtor for it to the other, may be charged on book. These lottery tickets, with the currency attached to them, by the eagerness of people to deal in chances, must be considered as property, and be the subject of a book charge. And for counsel fees. Bell v. M'Levan. March T. 1831. 3 Vt. Rep. 185. S. P. Carlton v. Lawry. Martin, 26, and Wharton's Dig. vol. 3. 219; Miller V. French. 1 Aiken's Vt. Rep. p. 99. Per Car. Hutchinson, C. J. A book account action lies to recover fees for plaintiff's arguing a cause for defendant, upon sufficient proof that the services were performed, although no charge was made on any regular book of accounts, but on slips of paper filed according to plaintiff's custom in his professional business. and delivery. So also in Ohio, tliey areevidencs, when not of more than 18 months standing and may bo proved by the party, and the jur}' deterniin when interest shall be allowed. In Indiana, book debts arc not admissible in evidcnco. BOOK ACCOUNTS.— TFAen an action lies. 459 4. Easby v. Eakin. Cooke's Tenn. Rep. 388. Per Cur. An account for the hire of a horse, may be proved ifjl.'^^jj"'/^'® under the book debt law. horse. 5. Sargeant v. Pettibone. Feb. T. 1826. 1 Aiken's Vt. Rep. p. 355. The Court in this case held, that a charge for postages, ma^^e -'f^"^'J|bo^^ by a person while post master, may be recovered in an action on postages. book account. 6. BoARDMAN V. Keeler. Jan. T. 1829. 2 Vt. Rep. 65. This was an action of book debt, to recover the amount due And to ... , . 1-1 ] 1 recover for the freight of certain commodities, shipped on board the freight, plaintiff's vessel. It was contended that an action of book debt would not lie, the action ought to have been assumpsit. Per Cur. Paddock, J. It would be doing the plaintiff an in- jury, without benefitting the defendant, to turn him around to a new action, if book debt will lie in the present instance ; and that it will, the court have no doubt. 7. Mills v. St. Johns, et ux. Feb. T. 1795. 2 Root's Conn. Rep. p. 189. The question in this case \vas, whether articles delivered by a And to re guardian to his ward while a minor, could be charged on book, value of ar and sued for a book debt. tides deliv Cred by a Per Cur. Necessaries advanced by a guardian to his ward, ffyiardian to may be charged as a debt, and recovered in an action on book. 8. Bowers v. Dunn. Sept. T. 1793. 2 Root's Conn. Rep. 59. Action of book-debt. The plaintiff's book was for one-half And for one ... . 1 /.half of ex of certain expenditures, in making repairs on a vessel, oi p^.njiiures which the plaintiff and defendant were joint owners, and for J^jiade j;)^r their joint benefit. The defendant contended that this action benefit of ■would not lie in such case, but an action of account ; but the uffandde Court were of opinion that the action was proper. fendant. 9. Fry v. Slyfiel-d. March T. 1831. 3 Va. Rep. 246. This was an action on a book account, for work una labour bour done 460 BOOK ACCOUNTS.— W^Aen an action lies. by the done by Hie raonlli at a fixed price, and payable at a future day. month at a ^ ■, ■ ■ -r t < fixed piicc. It was contended that the plainhn could not recoyer in this form of action, it being on a special agreement. Per Cur. Hutchinsov ^ C J. We may safely gcso far as to say that a mere claim for damages for any tortious act or neg- lect, or for any breach of contract, cannot be recovered in this action ; and that, in general, any claim for labour performed, or articles of personal property sold and delivered, and which have been properly charged on book, may be recovered in this action as well as in any other. If the price has not been agreed on by the parties, it must be set at a fair value ; but its being agreed does not deprive the party of his action on book. 10. Harris v. Barx-er. Sept. T. 1790. 1 Root's Conn. Rep. 220. o . ■„ . Action on book. But will not lieonaspe The defendant pleaded a special agreement, made at the time mentf"^^ of hiring the plaintiff, to pay him in particular, to wit, in pro- duce, &c., and which he had ever been ready to deliver. Per Cur. No man can charge another in debt, contrary to his agreement, until the other has been guilty of a breach on his part. Case v. Barry. Jan. T. 1830. 3 Va. Rep. 332. S. P. Prince V. Smith. 4 Mass. Rep. 455; Hitchcock v. Smith. 1 Brayton's Rep. 39. Action on a book account which came before the Court on objections to an auditor's report, he having rejected a charge for rent, as not being a proper subject of a book charge. Per Cur. Prmtiss^ C. J. It has been decided in several in- stances in this state, tliat rent cannot be charged on book, and recovered in this form of action ; and policy does not require us, iior do we feel at all disposed, if we were at liberty so to do, to extend the action beyond the limits prescribed to it by former decisions. We do not mean to say, however, that rent or the use- of land, can, under no circumstances be an admissible charge on book. 12. Savers v. The Inhabitants of Springvield. Sept. T. JS25. 3 Halst. N. J. Rep. 166. S. P. Strand v. Skinner. 3 Nor for a Halst. Rep. 134. eofiM^ P^>' ^"'^- -'^''' ^^-i^" o^"" ^''^'^ ^'''^^^^ "^^ ^^^ f""" ^^^ breach of a Nor to re jL'-jver rent. \ BOOK ACCOUNTS.— TFAen an action lies. 461 contract to maintain the poor of the township, by reason whereof the township was obliged to pay a sura of money for the main- tainance of a pauper. The action should be case. 13. Read v. Barlow. Jan. T. 1826. 1 Aiken's Vt. Rep. 148. S. P. Barlow v. Read. 1 Vt. Rep. 97; Read v. Barlow. 1 Aiken's Rep. 145. Per Cur. Skinner^ C.J. We believe it to be essential, to A delivery entitle the party to an action, that there should hare been a ^j^^ ^^^|!J transfer of the property; and that, without a delivery of the ar-ed i? essen tia,l to tlie tides, no action on book account can be sustained. A differ- validity of ent rule would be dangerous in the extreme. If a recovery can ^\®^,^'^^[Scs, be had, in an action on book account, for goods not delivered, which no or for services not performed, by the testimony of the party to^QQi^j^j. the contract, (and the law requires no other testimony in this fo"nt can • 1-11 1 p be sustain action,) few cases will remain, to which the salutary rule oi ed. law, that a party cannot be a witness for himself, will apply. 14. Farland v. Gage. Jan. T. 1830. 3 Vt. Rep. 326. This was an action on book account. Proinissory notes are Farland delivered Gage certain promissory notes against a not proper fhird person, to be collected and applied on sundry executions |^g^'[l''^,'j^y^^ against Farland, which Gage, as constable, held in his hands. Gage received payment on the notes, but made no application of them on the executions. Farland afterv\'aids sued Gage in an action on book account, and among other items, properly chargeable on book, he claimed the amount of the notes so de- livered to Gfio;e ; and Gase also claimed to be allowed the amount of the executions against Farland. Per Cur. The notes were not proper items of book charge; but as Gage had brought the executions into the account, and insisted on tiiem, as a claim against Farland, he thereby made the notes, or the amount received upon them, a proper matter of adjustment, in the settlement of the accounts . 15. Barlow v. Butler. Jan. T. 1828. 1 Vt. Rep. 147. This was an action of book account, and came before the A charge of Court, on the report of auditors, and exceptions to their report, own not" in The question was, can a note, or due bill, given by the plaint iff ^'^ ^°°^^' to the defendant, be charged by the plaintiff on his book. when it ap 462 BOOK ACCOUNTS.— TFAm an action lies. IZ'ehten ^^'' ^'^^'- li^^t^^hhison, J. It appears that the defendant held done at the a note given by the plaintiff to one T., of $105 28, and he Sif ^ g^^^' ^is note up to the plaintiff, to be cancelled, and a part of makithe ^^' ^° ^^'^'' ^^^ ^^' ^^^^ ^° ^^ placed as a credit to the defendant, charge nc On the plaintiff 's book j and the plaintiff was to give a new cessary. note directly to the defendant for the balance, being $37 50. This was done accordingly, but instead of placing it exactly in that shape, at the one and the same time gave the defendant credit for the whole, $ 105 28, and charged him with the amount of the note, $ 37 50. This makes the book show the ac- tual state of the transaction, and justice requires that the item should be allowed. 16. Stores v. Stores. Sept. T. 1789. 1 Root's Conn. Rep. 139. So an order This was an action of book debt for an order drawn by the of the plain ^ . . . '' tiffin favor plaintiff, in favour of the defendant, on one C. for j£60. The dantL a ^" ^l^^stion was, whether such an order may be charged on book; proper and whether the plaintiff may be admitted to swear to it, when charade, and . . . , i i i , i i ■ i i the piaintiffin the Writing he has acknowledged that he has received vaiue. toil. ' P^Tf Cur. The order may properly be charged on book, and the plaintiff be allowed to swear to it, it being an article of com- merce ; there is a wide difference between an action brought xtp- on an order or bill of exchange, and an action brought ybr an order or bill of exchange. 17. Stevens v. Tuttle. Jan. T. 1831. 3 Vt. Rep. £19. S. P. Where the Slasson V. Davis, et al. 1 Aiken's Rep. 73. cives'^arti Tuttle held a note against Stevens, and received of him from clesinpay time to time sundry articles, with the understanding of the par- note he ties, that the articles so received should be applied on the note. cannot re Tuttle refused to make the application, when applied to for that cover the . , vaUieof purpose. Stevens brought an action on book account, to recov- aSnSr ^"^ for the articles so delivered. book ac 'pi^g Qgyj-t held, that the action would not lie, and that Ste- count, but ' . . . must off-set vens' only remedy was, to have his account applied in payment def^'dan't ^ °f the note whenever Tuttle should attempt to enforce its col- enforce l\is lection, claim on the note. Vide Lor'mg v. Mansfield, 17 Mass. Rep. 394. BOOK ACCOUNTS.— T^Ae/i hooks are evidence. 463 18. Rogers V. Moor. Sept. T. 1793. 2 Root's Conn. Rep. 58. S. P. State v. Lawrence. 2 Root's Rep. 377; Punder- SON V. Shaw. Kirby's Rep. 150. This was an action of book debt, to recover the amount of^^J"^^^^^^^^. some articles, omitted by mistake in the settlement of account, articles , ^ , . omitted by between the parties. mistake in Per Cur. -As the settlement is admitted, and the plaintiff 's|^''°^^^^^^/j^ claim is only for mistakes made in the settlement, this action is counts. improper, and the plaintiff must resort to his proper action, grounded on said mistakes. 19. Dickinson v. Gould. July T. 1802. 2 Tyler's Vt. Rep. 32. This w^as an action on a book account, and the plaintiff declared ^^^ ^" ¥^ ' _ ^ _ _ action of for $18.18, and the county court rendered judgment in his favour book debt for 19.57, including the interest on the principal. may adcl Error to this court. ^^^ Per Chir. We are clearly of opinion, that the county court '^^^^^^'^^'^ were correct in adding to the sum demanded by the plaintiff in ration. his declaration the sum of $1.39 cents, which appears to have been merely the interest, which accrued from the date of the last charge in the account, to the time of the rendition of the judgment. 20. Broom v. Henman. Jan. T. 1791. 1 Root's Conn. Rep. 248. S. P. Temple v. Belding. 1 Root's Rep. 314. Action of book debt. The plaintiff claimed interest on said But interest debt, after it became due, upon the ground that it was the cus-{]^",g^^oj^*^ torn in New York, but the Court refused to allow interest. unliquidat ed book __^ debt. (B) When books are evidence, &c. 1. VosBURGH V. Thayer. Oct. T. 1815. 12 Johns. N. Y. Rep. p. 461. Per Cur. Where there are regular dealings between the Under what plaintiff and defendant, and it is proved that the plaintiff keeps ces^a'plaTn honest and fair books of account, that some of the articles f'^',^"'^'" books arc charged to the defendant, have been delivered to him, and that competent the plaintiff keeps no clerk, his books of account are, under the ^-^* ^"*'*' 464 BOOK ACCOVKTS.— When books are evidence. circumstances, and from the necessity of the case, admissible ev- idence for the consideration of the jury. 2. Stevens, et al. v. Trusdell. Jan. T. 1827. 2 Aiken's Vt. Rep. 81. In Vermont p^^. (j^^^.^ Skinner. C. J. Koth parties to an action on book- in an ac _ ' _ t tion of book account being made witnesses by the statute, each has a right to both parties ^^s^^fyj ^"^ ^^^^^ demand testimony of the other. And they are may testify, competent to testify to every material fact in relation to the ac- count, proper to be considered in deciding upon the respective claims of the parties. Vide Pidtney^ et al. v. Ross, 1 Dall. Rep. 239. Lynch v. Petrie. Jan. T. 1818. 1 Nott & M'Cord's S. Ca. Rep. 130. Contra, Pritchard v. M'Owen. 1 Nott & M'Cord's Rep. 131 ; in note Lamb v. Hart. 2 Bay's r^, . , I^ep. 362. The books ^ ofa brick Per Cur. The books of a briok layer or other mechanic, as mfssibire^i ^^^^^ ^^ *^^^ merchant, are admissible to prove the performance deuce, but of a particular job of work in the course of his trade, and of charge is articles furnished. But the articles must be specified, and a notgood. general charge for work and labour is not good. 4. M-Bride v. Watts. May T. 1821. 1 M'Cord's S. Ca. Rep. 384. S. P. Foster v. Sinclair. 1 Bay, 38. This was an action by the executrix of M' Bride, for the books. amount of a doctor's bill for medicine and attendance ; and the Court held, that the doctor's book of original entries, was good evidence, both as to the medicine administered, and services ren- dered. So are a doctor's O. Seagrove V. Redman, et al. Dec. T. 1797. 2 Yate's Penn. Rep. 254 ; 4 Dall. Rep. 153. Also a con j^^ ^j^-^ ^.^^^ ^j^^ Court held that the day-book ofa consignee, signee's ,-1 iCi. r i • books, to was evidence to prove the expenses of the outht ot a vessel in - Dve an » . . tfitofa a foreign port. prove an ou " vessel in a foreign port. BOOK ACCOUISITS.— Wheji books are evidence. 465 6. Bell, et al. v. Keely. Dec. T. 1797. 2 Yr.te's Penn. Rep. p. 255. The Court, in this case, held, that abstracts from the books of And with merchants abroad, are evidence to prove the shipment of goods ; abstracts but that they must be supported by other proof. from mer books are 7. evidence. Gordon v. Arnold.'Nov. T. 1821. 1 M'Cord's S. Ca. Rep. p. 517. Per Cur. A miller's books, who swore to the original en And a mil tries which he made, are admissible to prove the quantity of lum- ber furnished from his saw-mill to the defendant. 8. Frazier V. Drayton. May T. 1820. 2 Nott & M'Cord's S. Ca. Rep. 472. Per Cur. Colcock, J. It was contended on the part of the ^■J;^,^,^^^'^'^' defendant, that the books of a ferry-man ought not to be intro- books, duced in evidence, because tkey were not enumerated in the act of 1721, and had never been before admitted as evidence in any case. Now I am unable to see any reason why a ferry-man's books, if regularly kept, should not be admitted in evidence, as well as a physician's. Both charge for services performed, though of a different character. There is less room for imposition' in the charges of a ferr^-'-man, than in those of a physician. One can better remember how often he crosses a ferry, than how often a physician has visited his house, or distinguish the visits of a friend and physician. 9. Herlock v. Riser. Nov. T. 1821. 1 M'Cord's S. Ca. Rep. p. 481. In this case the plaintiff was a shop-keeper, and sued the de- And a shop fendant on an open account; most of the items of which, were l^^^p"^'^ . . y . . books. for spirituous liquors^ and the Court said that he might recover his account, and his books were admissible evidence. Vide Wood v. Barney., 2 Vt. Rep. 369. 10. DucoicN V. Casper[Schreppel. April T. 1794. 1 Yale's Penn. Rep. 347. Assumpsit ioi viork and labour. ^ellsoevi Vol. II. 69 466 BOOK ACCOU'NTS.— When books are evidence. dence pri 'fj^g Contest in this case was whether the entries in the plain- ma facie of . ^ , , . - . ^ the price of tifl's Dook Were evidence of the prices of the work. articles. p^^ ^^^^^ ^y^ j^^^.^ ^f^gj^ heard this point agitated at the bar, and we think with little reason. We are of opinion that day books are not only evidence of the delivery of goods, but of their prices also prima facie. How else could the prices of broad cloths, linen, cambric, &c., of different degrees of fineness be ascertained, after a length of time ? otherwise of money lent, or cash paid, for the party has it in his power to take a receipt. 11. Thomas V. BxsT. January T. 1818.1 Nott & M'Cord's S. Ca. Rep. 186. S. P. Slade v. Teasdale. 2 Bay'g Rep. 172. ^''s\ooks ^^^ ^^^" -^ printer's books are admissible to prove his ac- in absence count, for advertisements, and the delivery of his newspaper, of better ev , i i i xi. • j • i • idence, is When he has no better evidence in his power. admissible to prove. his i O account for advertising, j^ J P jj ^ j^ j^g ^._ HowARD. Jan. T. 1821. 2 Nott & M'Cord's S. Ca. Rep. 474. But not the This was an action brought to recover the amount of a prin- perform i i -n .... . . ance of the ter s bill, and the plaintiff's original book of entries was permitted panting. ^^ ^^ given in evidence, to prove not only the authority to advertise, but the actual performance of the work. Verdict for plaintiff. Motion for a new trial. Per Cur. Hiiger^ J. I am of opinion, that such books are on- ly evidence to prove the authorky for advertising, and that in this case the file of papers ought to have been produced, to show the performance of the printing alleged to have been done. Motion granted. 13. Case v. Potter. Aug. T. 1811. 8 Johns. N. Y. Rep. 163. S. P. Prince v. Smith. 4 Mass. Rep 455 ; Jones v. Brick. 3 Halst. Rep. 269. UfflbS" '^^^"^ ^"^^^'^ ^^^^ '^^ ^^^^ ^^^^' *^^^ ^^® plaintiff's book of ori- isnotevi ginal entries, was inadmissible as evidence to prove money lent. dence to prove mon Vide WUson V. Wilson, 1 Halst. Rep. 95. ey lent. 14. Craven v. Shaird. Nov. T. 1799. 2 Halstead's N. J. Rep. p. 345. se ^tsh''^^' ^^^ ^"^ ' ^^^^^n books contain various charges, though some BOOK ACCOUNTS.— TF/^en hooks are evidence. 467 of the items are for moncv lent, they are evidence, but not con-^^^''S^^' ^^ •'•'•' ' seems, are elusive. pAma facie TT- 1 I- ■ n 7 r^. TT 1 , T^ - r\ cviclence. Vide Swing v. Sparks^ 2 Halst. Rep. o9. 15. Pelzer v. Cranston. Jan. T. 1823. 2 M'Cord's S. Ca. Rep. 328. The question in this case, was, whether the books of the ^"'^^^^^°'*^ '■ master's plaintiff, who was a school master, were competent evidence tobooksave prove his account on their appearing to have been I'egularly "°j^^*^g"^6® kept. dence. Per Cur. It is certain the decisions have gone so far as to permit the books of other than merchants and mechanics to be given in evidence, but the Court have always kept in view the necessity of the evidence. Now there are few persons in busi- ness who are furnished with as many witnesses as a school master may command, and there is no necessity for admitting his books to be produced in evidence. The decisions have gone far enough on this subject, and the Court are not dis- posed to extend the principle. 16. Deas ads. Darby. Jan. T. 1819. 1 Nott & M^Cord's S. Ca. Rep. 436. Noratai lor's book. Per Cur. A tailor's shop book of entries is not compe- tent to prove a verhal order of the defendant, to let his ward have clothes. 10. Elms v. Chevis. May T. 1823. 2 M'Cord's S. Ca. Rep. 349. Contra^ Kenn"Edy v. Fairman. 1 Hayw. Rep. p. 458. This was an action upon an open account, for goods sold and -^ '^oo^ ^*^ count may delivered. The original entries v.'ere made by the plaintiff 's be prored" clerk, who was absent from the slate. It was proved that the ^'j^ ^[°|^^"^ entries were in the hand-writing of the absent clerk ; that he w^as wviiingof t li c cl G rk the plaintiff's clerk, and that he was out of the state. The ev-\^.i,oi^iade idence was deemed insufficient. Appeal to this Court. the entries, ^'^ if he be out Per Cur. The admission of such evidence has been, I think, of the state. too uniform and continued in this state, to be now disturbed. It is not in strict accordance with the rule which requires the best evidence, but it is of a class of exceptions which mercan- tile convenience has sanctioned, and to which experience has furnished no objections. 468 BOOK ACCOVWrS.— When books are evidence. TuNO V. Rodger. May T. 1795. 1 Bay's S. Ca. Rep. 480. S. P. Sterret v. Bui-L. 1 Binn. Rep. 234. Butevi Assumpsit for 'ere made in the hand-writing of the plaintiff, (who is out plainliri •' . . " ^. ... who is out of the country) is good evidence to goto a jury on a writ of in- of the state, evidence of ^Uir^^ . his hand writing is 20. sufficient. Foster v. Sinclair. Oct. T. 1786. 1 Bay's S. Ca. Rep. 40. And where fhe court in this case decided, that the original book of en- one of two .„ ,, . !•] copartners tries of a m.erchant or shop keeper, is good eviflence to go to a sL°te\he^''^J"''^y' upon the plaintiff's swearing to the same; and where one other may of the Copartners, who made the entries, is out of the state, the hisTand other Copartner may swear to his hand writing in the books. swear to his han writing- 21, Nicholson v. Withers. May T. 18-23. 2 M'Cord's S. Ca. Rep. p.' 428. But an ab pgj- Ciir. A merchant, plaintiff, cannot be examined by corn- sent plain .. xl-UI J tiff cannot mission, to prove his own account by reference to his booics, and be examin ^ ^ producins," them in court ; but a disinterested witness who ed by com -J ^ '^ ' _ _ mission to made the entries, may be so examined without the production of own books, the books ; for the entries in the book are mere memoranda, to which he may refer to refresh his memory. EvERiNGHAK v. Langton. May T. 1822. 2 M'Cord's S. Ca. Rep. 157. In an ac The court held in this case, that in an action by a book-keep- book^kelp^ er of a bank, for money had and received, on account of a erofabankagtioft charge," on n check, (overcharged,) the book-keeper's BOOK ACCOUNTS.— When books are evidence. 469 book kept by hira, unaccompanied by his oath, (the check not j^jJ^oYs^nad beinff produced,) cannot be admitted in evidence, upon proof ofmissibleas , . . ■. • • ^1 • j „ it j owners re age, should be made clearly to appear. If therefore, one of the side at the owners reside at the port where the expense is incurred, the place where _ r^ _ '■ ' the bond is power of the captain to raise money in this way is not permit- ^ * ted, inasmuch as the necessity does not exist. ^ Tiie master, for advances made for seanians wages, previous or afterwards^ for the necessary repairs and use of the skip during the voyage, may bind his owner personally; Abbot, 86 to 91. Am. ed. By the maritime law, the master rrmy hy- pothecate both ship and cargo, for repairs, fee during the voyage ; which arises from his authority as master, and the necessity of the case : but not for repairs done in tills country ; Idem, 95. Not only may the ma.siiir, under certain circum- slcmces, pledge the ship by bottomry bond ; but the owners and part owners may do so, in any case, to the extent of their interest. In the latter case, the lender has not a remedy in the Admiralty Court, against the ship, as he has in the former^ v.'hcrc the master gives an hypothecation for necessaries, furnished in a foreign port; Idem, 9th S. to 101. In the place of tlic residence of the owner, the master • cannot give a bottomry bond, by the maritime law. In a foreign country, he may, for any purpose necessary to the voyage, whether tlie occasion arise from any extraordinary particular, or from tiie ordinary course of the adventure, if he cannot otherwise obtain it ; and this binds the vessel ; but the owner is not personally liable; Wem, 101, 102. If the obliges being unwilling to take upon himself the- BOTTOMRY BONDS. 475 Hurry v. Hurry. April T. 1805. 1 Wash. C. C, U. S. Rep. 293. S. P. Racker v. Cunningham.. C. C. April 1809. M. S. Rep. and Wharton's Dig. of Penn. Rep. p. 539. It appeared in this case that the advances for which the ^ot-^|^Yy\hf^ tomv bond was ffiven, were furnished by a consignee, who had captain to ■J & ' •;_ _ ^ ill '•'>e consign funds in his hands, of the defendants, sutncient to secure tne acl-ge, having hi 1 1 funds in his e had made. hands of the Per Cur. The consignee, under such circumstances, cannot ou-ners, is -I bad. enter into a maritime contract with the master oi the vessel, so as to bind him to pay marine interest. Vide Liebart v. The Emperor., Hopkinsoii's admr. cases., 163 ; Readev. Commercial Insurance Company., 3 Johns. Rep. 354. Ship Packet, Barker, master. Oct. T. 1823. 3 .Mason's U. S. Rep, 263, Per Cur. Story, J. If the master has money of his own on [^nn-ow on board, sufficient for the ship's necessities, it is by no means cer- [Jo"om.y, if ' ^ 1 ,. he have suf tain, that he has a rig-ht in such case to resort to the extraordin-ficient men ary measure of bottomry. In case of there being money of the fy^^.^^ersoj, owner of the ship on board, it is very clear, that he cannot resort to board ; so, . It sticnis it bottomry. And though I would not absolutely deciJe, that un-hchave'of der no circumstances he could so resort, where he has sufficient ''^^ °"'^- money of his own on board ; yet if he can, it must be in the case of a very peculiar character, and such as ought to induce the Court to uphold it from great public principles. The onus would certainly lie on the master to establish such a case ; and it would be listened to by the Court, with scrupulous attention. Nor can lie 8. The Ship Packet, Barker, master. Oct. T. 1823. 3 Mason's U. S. Rep. 263. Per Cur. Story., J. Objection has.been taken to the conduct B'.uhe need of the master, in giving the bottomry bond ; that as he had spe- |i^_g ^^'^, J cie dollars on board, belonging (as he says) to some of the f-f^^ippe'"^ ' & & ^ J ' (third per risk of the voyage, is content not to demand maritime interest; it is competent to the master to pledge t!ie siiip, and the personal credit of the owner. In this case, the bond was for payment absolutely, and not on consideration of safe arrival ; Idem, 102. 1 Ves. 443. Tiie jiiaster may hypothecate, in a foreign countrj', for ne cessaries, where he has no owners, nor any goods of theirs, nor of his own, and cannot obtain tlieni by exchange or otherwise ; 2 Molloy, 126. W. 476 BOTTOMRY BONDS. sons) that shippers, he was bound to apnly this money in the first instance he may , t ^ r i i • i o • have on lo tne reliei 01 the snip, beiore resorting to tne extraordinary board. measure of bottomry. I am not prepared to say that there is any absolute rule, which compels the master at all events, and under all circumstances, to make use of monied coin of third persons, which he happens to have on board, in preference to any other mode of proceeding, but the law invests in him a large discretion on the subject. The Court cannot lay down any uni- versal rule on this subject. 9. Reade V. The Commercial Insurance Company. Aug. T 1808. 3 Johns. N. Y. Rep. .348. And'if he ^^ ^^'^^ Contended that the master, in this case, had no author- cannotoih ity to bottomry the vessel, as she w^as not forced by necessity erwi^e pro . . " .,, ;;,.. cure the mto an intermediate port; but arrived at her place oi destination, ^°"'jy''^Q®i^j^ where the plaintiff had a regular consignee. ccate the Pg,. Cur. Van JYess, J. Upon principle and authority, we vessel at • r i • 7 i i the port of are satisfied, that in cases of necessity, and when the master can- estination. ^^^ otherwise procure the money, he may borrow it on bottomry, and hypothecate the vessel for the re-payment of it, as well at a port of destinatlGn, as at nny other foreign port. 10. Crawford, et al. v. The V/illiam Penn. Oct. T. 1819. 3 Wash. U. S. Rep. 496. ttiSntyir ^^'' ^^"'- Washington, J. The authority of the master to not restrict hypothecate, is not restricted to necessaries to enable him to 6(i to 11CC6S ... saries. complete his original voyage. It extends to the obtaining of supplies necessary for the safety of the vessel, and -to enable him to perform any voyage which he is authorized by law to undertake ; there being no collusion between him and the len- der to injure the owner. But the master cannot, 'ij'potliccato tiie sliip, provided the money necessary for repair?!, can be raised in any other way, and in general, he cannot hypothecate her to the consignee; Liebart v. Ship Emperor, Hopkinson's Adm. Rep. 163; Forbes V. Brig Hannah, ib. 348; Canizares v. Brig Santissima, Trinidad, ib. ; Tunno v. S.hip Mary, Bee's Adm. Rep. 120. Molloy, B. 2. c. 2 s. 14, 15. The lender of money on bottomry, is bound to see that liie necessity actually exists, or else he loses his lien on the vessel ; Boreal v. Golden Rose, Bae's Adm. Rep. 131 ; Putnam V. Scooonsr Polly, ih. 157; Forb-^s v. P.r'ig [?annnh. Beo's Adm. Rep. 350. BOTTOMRY BONDS. 477 11. N. Hurry v. The ship JoHxV & Alice Whitesides & S. Hurry. April T. 1805. 1 Wash. C. C. U. S. Rep. 293. S. P. Walden v. Chamberlain. C. C- April 1814. MS. Rep. and Wharton's Digest of Penn. Rep. 539. The captain in pursuance of an authority from S. Hurry, part But he can owner, borrowed money for the ordinary disbursements^ and to se- in bottomry cure it, he gave a bottomry bond on the vessel for the amount, g°"3jj^^^° in which he included a pre-existing debt, due from S. Hurry to ^^bt. the consignee. Per Cur. Washington^ J. The advances may have created a debt to be discharged by the OAvner, but it was a pre-existing debt, which the master had no power to secure by a marine hy- pothecation. If the consignee could subject the ship to the payment of marine interest, for ordinary advances, hypotheca- tion bonds would be the constant attendant of every voyage. The present suit belongs not to the jurisdiction of the court of Admiralty. 12. The Sloop Mary. April T. 1824. 1 Paine's C. C. U. S. Rep. p. 671. The question in this case v.-as, whether a bottomry bond given Theowner of*H. vessel by the owner abroad, fell v»ilhin the admiralty jurisdiction of may pledge the district court. The district court having dismissed the libel, ^^'"'^y'^"'' " tomry in a Appeal to this court, foreign port . and thereby Fer Cur. It iias not been denied, and I presume cannot be, createanad but that the remedy upon- a bottomry bond given by the master "^^^^^^ '^" abroad, falls properly within the admiralty jurisdiction of the district couit. But it is said, when the bond is given by the own- er, recourse must be had to the courts of common law. No ad- judged case, either in this country, or elsewhere, has been refer- red to, or has fallen under ray observation, to justify such a dis- tinction ; and I do not perceive any well founded principle growing out of the nature of the contract, to warrant such a distinction. Vide 4 Cranch's Rep. 42B, 13. Blaine v. The Ship Charles. Feb. T. 1808. 4 Cranch's U. S. Rep. 332. ■n /~i r-n tat But he can Fer Lur. Chase, J. A bottomry bond made by the master, not in his vests no absolute indefeasible interest in the ship, on which it is °J^^.'J Pj^^'J^^^^ 478 BOTTOMRY BONDS. founded ; but gives a claim upon her, which may be enforced with all the expedition and efficacy of the admiralty process. This rule is expressly laid down in the books, and will be found consistent with the principle of the civil law, upon which the contract of bottomry, is held to give a claim upon the ship. In the case of a bottomry bond executed by an owner, in his own place of residence, the same reason does not exist for giving an implied admiralty claim upon the bottom, for it is in his power to execute an express transfer or mortgage. 14. Blaine v. The Ship Charles. Carter. Feb. T. 1808. 4 Cranch's U. S. Rep. 332. Bottomry Per Cur. The claim of bottomry is to be preferred to all oth- claims are /• 7 t • i 7 to be prefer ers, except seamen's w^ages, /or the voyage on which the bottomry red to all ig founded; but it can extend no farther. oihers ex *' cept sea man''s xoa 15. ges. The Jerusalem. May T. 1815. 2 Gallison's C. C. U. S. Rep. p. 345, Oralienon T^g Court held in this case, Story. J., that a tradesman has a a foreign . . . i ji i vessel for lien On a foreign ship, lying in a port of the U. States, for re- repairs. paifs inade by him on board, and such lien will be preferred, in point of right, to a bottomry interest, which is prior in point of time, if it appear that the repairs were indispensible. 16. The Sloop Mary. April T. 1824. 1 Paine's C. C. U. S. Rep. p. 671. S. P. The Jerusalem. 2 Gallis, Rep 350. oi"(fbotTo*ni This was an action on a bond, which bore date in July, 1823, TV bond, al and was executed by the captain to one Elliott, pledging the teriof hi^°^ sloop, her tackle, apparel, and furniture, &c. for the payment of time, has $1000, advanced for outfits, and other disbursements, in the claim. island of New-Providence, to be paid after her arrival at New- York. A claim was interposed by one Young, under a bill of sale, in the nature of a mortgage, executed by the captain in Nov., 1822, and the question was, whether the bottomry bond had priority over the claim under the bill of sale, which is of an antecedent date. Per Cur. Thompson^ J. It should be observed of these securities (bottomry bonds) in general, that if they are given at different periods of a voyage, and the value of the ship is insuffi- cient to discharge them all, the last in point of date is entitled BOTTOxMRY BONDS. 470 to priority of payment, because the last loan furnished the means of preserving the ship, and without it, the former lenders would 'entirely have lost their security ; and this principle is sanctioned by Mr. Justice Story, who lays it down as an established rule,, that a second bottomry bond, although posterior in time, has pri- ority of claim. 17. Walden v. Chamberlain. April T. 1814. 3 Wash. C. C. U. S. Rep. 290. S. P. The Aurora. 1 Wheat. Rep. 96. Per Cur. Washington. J. The oblic^ee in a bottomry bond The obligee 11 A 1 • o I ^ 11^"''^ bottom ought always to prove the necessity lor the advances, and that ry bond they were made to enable the master to prosecute his voyage ;0"g"'^^o the necessity for such advances, and that they were made on the necessity of credit of the vessel, are never to be presumed. If the master gs. has, or can command any other funds, he has no authority to subject the property of the owner to the payment of a premium beyond legal interest. 18. Crawford v. The William Penn. Oct. T. 1819. 3 Wash. C. C. U. S. Rep. 485. Per Cur. Washina;ton^ J. In a libel on a bottomry bond, the And byoth ■, , . cr evidence libellant is always expected to prove, by other evidence than than the the bond, the money was lent, and that the repairs were made, °" ^'^* ' and materials were furnished, to the amount claimed. He should exhibit an account of the items, for which the funds were expend- ed, vrith the usual proof, that the court may judge of their neces- sity. 19. Blaine v. The Ship Charles Carter. Feb. T. 1808. 4 Cranch's U. S. Rep. 328. Per Cur. If the obligee of a bottomry bond suffer the ship to And he los make several voyages without assertino- his lien, and executions ^^ilr.. JO o ' _ II he sutler are levied upon the ship by other creditors, the obligee loses his ihe ship to T ji 1 • " make sever hen on the ship. al voyages witliout en 20 forcing it. Appleton v. Crowkinshield. Nov. T. 1807. 3 Mass. Rep. p. 443. In this case, money was lent on a bottomry bond, conditioned "^"^'l^ere the that if the vessel should perform the voyage, the money should captured** 480 BOTTOMRY BONDS. demned the ^^ ^^^^^ ^" twenty days after her arrival; if she should be lost obligee ill a through perils of the seas, or by fire, or the enemies of the bond^can United States, the bond to be void. The vessel was captured not recover, |jy a British Cruiser, and condemned as lawful prize, but upon even where . i ' x the fall val appeal the condemnation was reversed, and full compensation vessd was received by the owner, for the vessel, cargo, freight, &c. ; and awarded to the question was, whether, under the above circumstances, the the owner. , ,. • ^i i i i i obJigee in the bond could recover. Per Cxir. The vessel in this case was captured, condemned and never returned to her owners ; here was a total loss, which discharged the defendant from his bond. But it is said that the defendant has received her value, so that virtually there was no loss. The question with us is, whether any event, within the condition of the bond has happened, whereby the obligor is dis- charged from his contract, such event did happen, viz. her cap- ture and condemnation. And, although the defendant has re- covered her full value, yet we cannot say that there was a per- formance of the voyage, within the meaning of the condition of the bond, but the plaintiff may obtain that justice in another form of action, to which he is undoubtedly entitled. Judgment for defendant. Sedgzvick, ./., dissented. 21. The Schooner Zeypher. May T. 1824. 3 Mason's C. C. U, S. Rep. 341. When T^^ schooner was bound from Messina in Sicily to Boston, freight is and being greatly injured by the perils of the sea, was compel- bottomry led to put in to Lisbon, an intermediate port, for repairs ; for bond, it ||-jg amount of which the captain p'ave a bottomry bond, binding means the . j ? o freight of the schooner and the freio-ht for the voyage. -Ill '^ JO the whole t» y-r n T rrn • • t i i ^ voyage.and "er Cur. Story, J. Ihe question is, whether the bottomry not the bond was not intended to cover the whole freij^ht earned in the freight for _ _ p ihat part of voyage from Messina. Where the the freight is pledged gener- un*per*^rm^ ally, it seems to me, that it includes the freight for the whole cd at the vovaoe, which the ship is in the course of earnino- ; and it would time ofgiv , -^ -^ ' , . . ^ .... . „ ^ ing the be unjUst and inconsistent with the intention of the parties to re- ■ strict it to freight subsequently earned, as upon a new contract. When the parties pledge freight, it must, in the absence of all other counter proofs, be presumed, that they mean the freight to be earned by the ship in the course of the voyage. BOTTOMRY BONDS. 481 23. The Ship Packet, Baxter, Master. Oct. T. 1S23. 3 Mason's C. C. U. S. Rep. 267. Per Car. Stoi-y, J. The question is, how the assets are to ^"^^" "^^«*s . . ^ ... are I o be be marshalled in paying the bottomry bond. It is said, that marshalled there is property of the owner, and property of the master on H^j"?^^^'"^ * board, included in the bottomry of the cargo. My opinion is, bond- that the property of the owner is to be first applied to the pay- ment of the bond. In respect to the master, I should hold, that if he had money of his own on board, at least so far as the ship- pers are concerned, the bottomrj" bond should be held pro taiito^ not to attach upon the cargo. And I at present incline also to the opinion, that the other property of the master included in the bond, ought to be applied before that of the shippers. 23. Crawford and JNI'Clean v. The William Penn. April T. 1815. 1 Peters' C. C. U. S. Rep. 106. The Jerusalem. 2 Gallis. Rep. 191. This was a libel in the district court, on an hypothecation of Tlie court this vessel, given at Jamaica, for repairs made on her, and ad- ty may en vances for her outfit, to enable her to perform her voyage to|°''^^^P^" the U. States. The owner of the ship was admitted to claim ; pothecation and he pleaded, that the instrument of hypothecation was exe- ^^ ^^.n^ an cuted during the war, and that the libellants are alien enemies, ^^'^"'^""^'"y residing in Jamaica. The district court dismissed the libel. Appeal to this court. Per Cur. A bottomry bond, given for the repairs of a vessel as a cartel in an enemy's port, may be enforced by the admiral- ty powers of the district court of the United States, notwith- standing the contract of hypothecation was entered into with an alien enemy. 24. The Mary. Feb. T. 1815. 9 Cranch's U. S. Rep. 126. „ ^ ^ But th«5 Per Cur. The holder of a bottomry bond cannot claim in a^olderof a . - . bottomry court of prize. bond can not claim 25, '" * prizo court. Hurry v. The assignees of Hurry. April T. 1808. 2 Wash. C. C. U. S, Rep. 145. Per Cur. Where a bond has been given in the nature of a A bond in bottomry, but the circumstances, under which it was executed bottomTyf Vol. II. 61 482 BOUNDARIES.— By natural objects. void as a were not such as to warrant the captain in executing a maritime mariiime se , , . . ^, " curity, may hypothecation, yet, the captain having had a power of attorney iTcn^Iucom ^""""^ ^^^ Owner of the vessel, to borrow money upon the vessel, mon law. such a contract, if made by the captain, may create a lien on the vessel, in a court of common law. 26. Gibson v. The Philadelphia Ins. Co. Dec. T. 1808. 1 Binn. Penn. Rep. 405. Per Cur. Where the parties to a respondentia bond agree, that the lender "shall be liable to average, and entitled to the benefit of salvage, in the same manner as underwriters on a policy of insurance, according to the usage and practices of the City of Philadelphia," the borrov»^er is not entitled to calculate an average loss on the whole amount of the money loaned, and the marine interest, but merely on the costs and charges of the goods onboard, and the premium of insurance. On an agree nient by the lender on responden tin to be lia ble for aver age, the bor rower is on ly enti'Jud to calculate the loss on the costs and charges of the goods on board, but, cannot on the Avhole a mount of money loan ed. 2$0UHt2Ier-^''"^"f*'Tf^ -^ ^ convey all rill's home lot, or the heirs' of Hezekiah ?vlerrill, deceased ; the land in from thence running south, in the line of Maine Street, fifty huhem; 488 BOUNDARIES.— i?i/ natural objects. feet ; thence running at right angles, and running east one hun- dred and eighty six feet ; thence turning and running northerly fifty feet, to said Merrill's lot ; thence turning and running west to the place of beginning." The Court charged the jury that the grantors conveyed by this deed to the plaintiff, and covenanted that they had good right to convey 50 feet of land on Main Street, a nd if it fell short of 50 feet, the defendants had violated their covenant. Pei' Cur. Daggett, C. J. The question is, are the defend- ants liable for any delivery of this line, should it by mensuration fall short of fifty feet. The rule is,'that known and fixed monu- uments controul courses and distances. So the certainty of metes and bounds will include all the lands within, though the quantity vary from that expressed in the deed. The least cer- tainty must yield to that which is more certain, if they cannot be reconciled. The charge was a misdirection ; it should have been left to the jury to ascertain the south-west corner of Mrs. Merrill's home lot. And if the plaintiff had obtained by the deed, all the land lying between the points mentioned in the deed, whether fifty feet, or less, the covenant was not broken. 13. Jackson, Ex, Dem. Butler, v. Widger. Oct. T. 1827< 7 Cowen's N. Y. Rep. 723. S. P. Jackson v. Ogden. 7 Johiis. Rep. 725; Jackson v. Camp. 1 Cowen's Rep. p. 612. And more Ejectment. Verdict for plaintiff. Subject to the opinion of e(f"/fhV^ the Court, upon the construction of a deed, in these words: deed. "Beginning on the east line of Butler's tract, called the "Range," at the corner of lots No. 11. and 12. of the same range, thence west 41 ch. and 50 L. to the centre of Mill Creek, thence up the centre of the same as far as will make the North- ern latitude, 38 ch. 50 L. to the Farr clearing, so called.^'' Held by the Court, Savage, C. J., that the defendant was en- titled to go to the Farr clearing, although the distance might exceed the 38 chains, and fifty links given by the deed. 14. Large v. Penn. April T. 1821. 6 Sergt. & Rawle's Penn. Rep. 488. S. P. Man, et al. v. Pearson. 2 Johns. N. Y. Rep. 37 ; Powell v. Clark. 5 Mass. 355; Smith v. Evans. 6 Binn. Penn. Rep. 102; Boar v. Moore's admrs. 1 Sergt. & Rawle, 166. wiU°noUie Covenant. Plaintiff declared that defendant sold to him land, BOUNDARIES.— % natural objects. 489 contained within metes and bounds, and covenanted that there o"'^ convey ' - . ance, where was 2 3-4 acres, when there was but one acre, and a fraction, there is less On oyer, the deed recited "containing two acres, and three dJ!,cribed.'^ quarters of an acre," and then^foJlowed the covenant of war- ranty. Per Cur. Tilg/wian^ C. J. The question is, whether there was a covenant that the quantity of land should amount to two acres and three quarters? And I am clearly of opinion there was not. The quantity of land introduced in the deed, is not by way of covenant but by description. 15. Dodge v. Smith. Nov. T. 1820. 2 N. Harap. Rep. 303. , J A And monu Per Cur. "Whenever in a conveyance of land, the deed re-mentsnnm fers to monuments actually erected as the boundaries pfthe land, ^^JJj||j^®.^ it is well settled that those monuments must prevail, whatever the quanti mistakes the deed may contain, as to the distance 'between the^^° ^" * monuments. The same principle was decided in Brand v. Daw- ny, 20 Martin's Lou. Rep. 159. 16. Gate v. Thayer. May T. 1824. 3 Greenleaf 's Me. Rep. p. 71. Writ of entry, for lands in the town of Alna. The tenant fj'^^^j^^^J* claimed the lands under a sale by the collector of the town, for tnents are 11 1 1 i 1 • 1 .1 1 • • ii i- described, taxes. And the demandant claimed them as lying in tlie town that which of Dresden. ismostcer lain will pre It was agreed by the case, that the premises in question, werevail. part of the land formerly belonging to the estate of Dr. Gard- ner, and that by an act incorporating the town of Dresden, the line of that town was described, as "beginning on the easterly side of Kennebeck River, on the line that divides the town of Pownalborough, from the town of Woolwich ; from thence run- ning upon the said line three miles ; from thence upon a straight line, to the middle of the great bridge on the county road, lead- ing from Sheepscut River, to Kennebeck River, erected over Dr. Gardner's mill-brook, so called ; from thence on a north-east course to the northern line of said town, including the whole of the farm, or land there belonging to the estate of the said Dr. Gardner; from thence by the northen line to Kennebeck River, thence down the said River to the first mentioned bounds." It was further agreed that a line running from said bridge, a due north east course, would leave the premises in the town of Al- VoL. II. 62 490 BOUNDARIES.— B?/ natural objects. na ; but a line running from said bridge to the northerly line of said town, so as to include the whole of the land belonging to the estate of Dr. Gardner, at the time of the incorporation, would leave the demanded premises in Dresden. The question was, as the description of the line was variant, which should prevail? Held by the Court, Mellen, C. X, that the line of the farm should prevail, as being the more certain monument — it is a known and immovable monument, and was more evidently in- tended by the legislature. 17. VosE V. Handy. June T. 1823. 2 Greenleaf's Me. Rep. 330. S. P. WORTHINGTON ET AL. V. HiLYER. 4 MaSS. Rep. 196 ; Jackson v. Clark. 1 Johns. Rep. 217, b^e^fakr""" ^«^ Cur. MelUn, C. J. Where several particulars are nam- {andihe ed, decriptive of the premises conveyed, if some are false and true are suf . . , i .i , i /y- • i p ii i ^i ficicnt)they inconsistent, and the true be suiiicient ol themselves they •^^I'd^'^* will be retained, and the others rejected in giving construction to the deed. Vide 17 Johns. Rep. 146 ; 1 Caine's Rep. 493. 18. WiNTHROP v. Curtis. June T. 1824. 3 Greenleaf's Me. Rep. 110. S. P. Jackson y. Lunt. 2 Caine's Rep. 363; Jackson v. Dennis. 2 Caine's Rep. 177. A grant of The question In Court arose as to the construction of the miles on Plymouth patent, which recited the grant " of all that tract of each side of land, &c. which adioineth to the river Kennebeck, towards the a river must , be located western ocean, and a place called the lalls, and the space of ni- ry'^point^o^f ^^^^ English miles on each side of the river, commonly called the exterior the Kennebcck river, and all the said river, called Kennebeck line shall be , , . ,. ... ,, -it ■. h thatdis that lies withm the said limits. lance from Held by the Court, Weston, J. (after reviewing the cases) that the grant extending fifteen miles on each side of the Ken- ebeck river" is to be located so that every point in the exterior line shall be exactly fifteen miles from the nearest point of it. The same principle was adopted by the Court of Errors in the state of New York, Williams v. Jackson, 5 Johns. Rep. 489. where the Hon. De Wit Clinton, who delivered the opinion of the Court, observed, that the only practicable mode in cases like the present, is to run the bounds so that every point in them shall be exactly the given distance from the point nearest it, in the creek or river. BOUNDARIES.— % natural ohjgck. 491 19. Doe Ex Dem. Haughton & Slade v. Roscoe, et al. June, T. 1824. 3 Hawk. Rep. 21; Doe Ex Dem. Slabe & Haugton V GKEEAf & Ryan. 2 Hawk's N. Ca. Rep. 219. Ejectment. The question before the Court arose upon the A^^^^^^^^JJ^^ construction of a grant, containing a call for a course " south land "to a . river " ter 14, east 171, poles to Roanoke river, then north, &c." In run-J-nina'tesat nine: the line, the river w^as reached at the distance of 150 ''\^J^P'^i"'' o ' _ without r« poles. The defendant contended that the line should be run ga id to the into the river so as to complete the distance. The Court instructed the jury that the call to Roanoke river terminated when the line reached the margin of the river, that the distance was to be disregarded, and the intersection with the river, was to be considered the termination of the line. Verdict for plaintiff. Per Cur. We see no objection to tho charge of the Court as to the boundaries of the land. 20. Doe v. Paine and Sawyer. Dec. T. 1825. 4 Hawk's N. Ca. Rep. 64. Per Cur. What are the termini or boundaries of a grant or What are deed, is a matter of law; w4iere those boundaries or ^er?nr/ji are, described in is a matter of fact. It is the province of the Court to declare ^ "^^^^ '^ ^^ ' , ^ question of the first, that of the jury to ascertain the second. Where natu- too, and ral objects are called for as the termini, and course and distance ly is matter and marked lines are also given, the natural objects are the ter-'^^M^- wiim, and the course and distance and marked lines can only be resorted to by the jury to ascertain the natural objects ; they act as pointers or guides to the natural object. When the natural boundary is unique, or has properties peculiar to itself, these pointers or guides can have but little effect, in fact I believe none. Where there is more than one natural object in the neighbourhood, answering the description, that is having com- mon qualities, then those pointers or guides maybe reverted to, to ascertain where the object called for is, or which is the object designated. They do not then contradict or controvert natural boundary ; they explain a latent ambiguity, created by there being more than one object which answers the description. 492 BOUNDARIES.— % natural objects, 21. Perkins et el. v. Ramseys, et. al. Feb. T. 1820. 5 Wheat. , , , U. S. Rep. 269. And the sur veymust Appeal from the decree of the seventh Circuit Court in the conform to t\- i • i. r i- t. i the entry. ■L'lstnct ol Kentucky. The entry was in these words ; "William Perkins and William Hoy, enter 6,714 acres of land on a treasury warrant. No. 10,692, to join Lawrence Thompson and James M'Millen's en- try of 1,000 acres that is laid on the adjoining ridge between Spencer's creek and Kingston's fork of Licking on the east, and to run east and south for quantity." The entry referred to in the foregoing, was as follows : " 9th of Dec. 1782, Lawrence Thompson and James M'Millan, assignees of Samu- el Baker, enter 1,000 acres on a treasury warrant. No. 4,222, on the dividing ridge between Kingston's fork of Licking and Spencer's creek, a west branch of said fork, to include a large pond in the centre of a square, and a white oak tree marked X, also an elm tree, marked V. S., near the side of the pond." 22. Rix V. Johnson. Nov. T. 1831. 5 New Hamp. Rep. 520. S. P. Alcock v. Little, cited, page 523; Newton v. Pri- or. 7 Wheat. U. S. Rep. 10 ; Preston v. Bowman. 6 Wheat. Rep. 582; Jackson v. Camp. 1 Cowen's N. Y, Rep. 604. And where ^^le land of one Hutchins was extended, and the extent upon the hue was ... . stated to be the land was described in the sheriff's return as follows : Begin- the river" "^"g ^^ ^^- ^"<^ running north 56 deg. 35 min.. west, 95 rods, to held that a stake at the river ; thence on the river north, 6 deff. 40 min. the nver 011 • o 1 should be west 23 perches ; thence north 39 deg. 50 mm. west, 33 perches ; the bound! thence north 20 deg. 20 min. west 35 perches and 8 links, to a ry. stake by the river ; thence, &c." The stakes mentioned were between the ridge ©f the river bank and the water, the souther- ly one, about one rod from the waters edge : and the northerly * one at the distance of eight or ten feet. The line of the river nearly coincided with the ridge of the bank, leaving sometimes more and sometimes less land. The defendant entered upon the land between the stakes and the river, and this action was brought for that alleged trespass. Per Cur. Richardson,, C. J. The question is, whether the line described in the extent, or the river, is to be considered as the true line of the premises, upon which the extent was made. In stating the course from " the stake at the river," it is express- BOUNDARIES.— J5y natural objects. 493 ly said to be " on the rivei^" and, although not repeated at eve- ry change of the line, yet by a fair construction it may be infer- red, that it was intended as a boundary. If the bank of the river had been intended to be the line, the words, " bank of the river," would have been used. Where a deed patent or grant, describes a boundary from a certain point down a river, creek, or the like, mentioning also course and distance, should the lat- ter be found not to agree with the course of the river, creek, &c, it ought to be disregarded, and the river considered the true boundary. We are all of opinion, the river must be considered the boundary. 23, Massie v. Watts. Feb. T. 1810. 6 Cranch's U. S. Rep. 148. Held by the Court, Marshall, C. J., that where the description And therec of an entry does not sufficiently describe the land, but the court ^^JJ.|"^^Jj^g can gather enough from it to fix the location, the entry is not preserved, void. And if there be material calls sufficient to support the lo- cation, other calls less material, and which are incompatible with the more material calls, may be discarded. And the court will preserve the rectangular figure in preference to any oth- er, as being of superior convenience over every other, with re- spect to the adjacent residuum. It originates from the necessity of adopting some regular figure, in order to give to locations that certainty, which is not always to be found in their terms. 24. Hamilton v. Cawood, et al. May T. 1796. 3 Har. & M'Hen, Md. Rep. 439. Ejectment for part of a tract of land, which was described in a deed de the deed, to' run bv course and distance, without anv natural fF'''/"S'*'° ' - ' ' •' line by boundary. course and Per Cur. We are of opinion, that the party must be confin- cannot be ed to his courses and distances, and that he cannot explain by "'^'"'^^ ''^ . ; L J parol testi parol testimony what land was intended to be conveyed. mony. Vide Meaux's heirs v. Breaux, 10 Martin's Rep. 364, where it was held, that where the deed calls for land on both sides of a stream, and also with calls for the line of another grant, as its upper limits, it does not necessarily follow, that such a line be the limit on both sides of the stream, if the contrary be shown by proper evidence. And see Owen v. Bartholomew, 9 Pickg. Rep. 520, where Putnam, J. held, that where the given distan- ces are exceeded in a grant of land by the commonwealth, which 494 BOUNDARIES.— By natural objects. is described by courses and distances, without referring to mon- uments, evidence may be received of long occupation under it to prove the boundaries; Makepeace v. Bancroft, 12 Mass. Rep. 469; Sargent v. Town, 10 Mass. Rep. 303 ; Baker v. Sanderson, 3 Pickg. 354 ; Livingston v. Ten Broeck, 16 Johns. Rep. 23, 25. BoARDMAN, ET AL. V. ThE LESSEES OF ReED, ET AL. Jan. T. 1832. 6 Peters' U. S. Rep. 341. Taylor v. Shufford. 4 Hawk's N. Ca. Rep. 116; Tate v. Southard. 1 Hawk's Rep. 45 ; Jackson v. M'Call. 10 Johns. N. Y. Rep. 377 ; Doolittle v. Blake. 4 Day's Conn. Rep. p. 265. Boundaries Per Cur. McLean, J. That boundaries may be proved by may be • j • J r j proved by hearsay evidence is a rule well settled ; and the necessity and dence?^ ^^' propriety of which, is not now questioned.* Some difference of opinion may exist as to the application of this rule, but there can be none as to its legal force. Land marks are frequently formed of perishable materials, which pass away with the generation, in which they are made- By the improvements of the country, and from other causes, they are often destroyed. It is, therefore, important in many cases, that hearsay, or reputation should be received to establish ancient boundaries ; but such testimony must be pertinent and material to the issue between the parties. Vide Dane's Abr. of Amer. L. vol. 3. p. 397, where some of the early cases decided in Massachusetts are collected. 26. Lessee of M'Coy v. Galloway. 3 Hammond, 282. (Ohio Cond. Rep. 576.) Ejectment. Per Cur. The plaintiff's patent calls to run from the be- ginning, east, two hundred and sixty-six and two-thirds poles, to But it can not be re ccived to contradict record evi dence. * Boundaries are defined to be the utmost limit of land, whereby the same is known and ascertained ; 4 Coke. Inst. 318. And heresay evidence is admissible on a question of parochial or manorial boundary, although the witnesses were old persons and parishoncrs, and claimed rights of common, or the waste which would be enlarged by their declarations ; Nicholls v. Parker, 14 East. 331. Decla- rations of deceased persons, of the common opinion of the neighbourhood, who, from their situation, had the means of knowledge and no interest to misrepresent, is admissible evidence, but the testimony ought to come from persons having no in- terest to misrepresent ; Fide, 1 T, Rep. 466 ; 5 T. R. 26 ; 2 Vesey . 512 ; 12 East. 62; 1 M.& S. G79. BOUNDARIES.— On rircr^, streams, ^c. 496 a sugar and ash. He now claims, by a line, four hundred and eighty poles, to a hickory beach and oak. His third corner called for, is two beaches and an ash. The corner which he now claims is two hickories and a beach. Upon a question of boundary the report of the neighbourhood cannot be received to contradict record evidence, for in such case, certainty and pre- cision would be dispensed with. When corners are lost they may be proved by reputation.* Witnesses may be examined to shew that a corner once existed ; that it has been destroyed, and that it corresponded with the call of the entry, or survey ; but they cannot be allowed to sub- stitute one corner for another, or to contradict the evidence which is of record, they can not change a sugar tree, to a hick- ory, or an ash to a beech. (B) BoUNDARrES ON RIVERS, STREAMS, &C. 1. Canal Commissioners v. The People. Sept. T. 1830. 5 Wend. N. Y. Rep. 423. S. P. Adams v. Pease. 2 Conn. Rep, 481 ; Hooker v. Cummings. 20 Johns. Rep. 91 ; Arnold v. Mundy. 1 Halst. N. J. Rep. 1 ; Hay's exr. V.Bowman. 1 Rand. Va. Rep. 417; King v. King. 6 ^ Mass. Rep. 496 ; Jackson v. Halstead. 6 Cowen, 216. Per Cur. Walworth, Chancellor, A grant of land bounded ^,\'^i"en°"* upon the sea shore, or upon a stream, or arm of the sea where boundaries the tide ebbs and flows, conveys to the grantee only that part ofandsueams the bank, which is not covered by the water at flood tide. And j'^^^^^^jg'^J neither the lands under the water, the islands therein, or the right ter. of fishery will be conveyed by implication. In order to affect these, the terras of the grant must be so clear and explicit, as to leave no manner of doubt, as to the intention of the grantor to part with those rights, which the welfare of the public requires to be reserved, for the benefit of the citizens at large. But the rule is directly the reverse, as to those grants which are bounded on rivers and streams above tide water. In such case, if the grant * The rule in the text prevails probably in all the states ; Hovvells Lessee v. Til- den, et al 1 Harris & McHeii. 84, 368, 531 ; Harris v. Powell, 2 Hayw. Rep. 349 ; Lilly V. Kintzmiller, 1 Yates' Rep. 28; Caufman v. Cedar, Spring Cong. 6 Binney 59 ; Smith v. Walker, 1 Carolina Law Rep. 514 ; Smith v. Newells, 2 Little's Rep. 160. Except perhaps in Connecticut, where a diiferent rule has been adopted ; Por- Icr V. Warner, 2 Root Rep. 22. 496 . BOUNDARIES.— 0// rivers, streams, ^c. is bounded on the stream, or along the same, or on the margin thereof, or where any other words of similar import are used, the grant legally extends to the middle or thread of the stream ; and not only the bank but the bed of the river, and the islands therein, and the exclusive right of fishing, are conveyed to the grantee, unless they be expressly reserved, or the terms of the grant are such as to show a clear intention to exclude them from the general operation of the rule of law. Ex PARTE Jennings. Oct. T. 1826. 6 Cowen's N. Y. Rep. 518. S. P. Hammond v. M'Glauhon. Taylor's Rep. 196; Stoker v. Freeman. 6 Mass. Rep. 439. A grant of The Court held in this case, that a patent bounded on the mar- edonariv S^^ °^ ^^^ Chitteningo Creek includes the land, usque filum aque. ernotnavi An opposite rule prevails in the construction of grants, bounded tends'to the on the margin of navigable rivers. By the term navigable river, centre. ^^iq law does not mean such as is navigable in common parlance. The smallest creek may be so to a certain extent, as well as the largest river, without being legally a navigable stream. The term has in law a technical meaning ; and applies to all streams, rivers or arms of the sea, where the tide ebbs and flows. A pub- lic grant bounded on the margin of such waters, extends by con- struction no farther than high water mark, and leaves as to the rest, an absolute proprietary interest in the public. Above the flow of the tide the river becomes private, either absolutely so, or subject to the public right of w^ay, accordingly as it is a small or a large stream. N. B. The reporter has appended to the report of the above case. Sir Matthew Hale's De Jure Maris, and has referred to the American Cases, pages 5.36, and 554. 3. Handley's Lessee v. Anthony Feb. T. 1820. 5 Wheat. U. S. Rep. 374. Where a Ejectment for land which the plaintiff" claims under a grant state owns •' •iir-iiij the land on from the state of Kentucky, and which the defendant holds un- ofa'rTvlT ^^'' ^ g^'^"* of ^1^6 United States, as being part of Indiana. and grants And the question before the Court, was, whether the lands lie the opposite i^ the state of Kentucky or in the state of Indiana. It being side, the ^j^ island, bay or peninsula in the Ohio river. grant is > j r bounded by Marshall C. J. held, that the boundary of the state of Ken- mark, tucky, extended only to low w^ater mark, on the western BOUNDARIES.— On rivers, k-freams, Sc. 497 and northwestern side of the river Ohio, and did not include the island on the western or nortliwestern bank, separated from the main land by a channel, which is. filled with wa er nly when the river rises above its banks, and at other times is dry. The state of Virginia being the original proprietor on each sid of the river, granted the territory on one side. The proper con- struction of the grant is, that the river remains within her own domain, and the grant only extends to low water mark, and not to the centre of the river. But the rule would be otherwise be- tween two nations or states, wheie the orginal property was in neither. Each would hold to the middle of the stream. 4. Morgan v. LivingstoxN, et al. 6 Martin's Lou. Rep. 19. Held by the Court, that in a deed where the words of convey- [jjj^^^^g^°,.-jj ance are, "Front to river," they prima facie designate a ripari-ed as "front • . i-r 1 ^ • 1 '° river," ous estate, and the vendee acquires a qualified property m the conveys a bank of the river, and which thereafter arises by alluvion. But ^'P'^[^°"^ not where according to the i)lan, which shows the front line to be within the levee, provided the alluvion was formed of suffi- cient height and magnitude to be susceptible of private owner- ship. Vide Cochran v. Fori, etal. 19 Martiii's Lou. Rep. 662. 5. Lessee of M'Cullock v. Allen. 2 Hammond's Ohio Rep. 307. S. P. Handley's lessee v. Anthony. 5 Wheat. U. S. Rep. 374; Johnson v. Pannel's heirs. 2 Wheat. Rep. p. 206. Per Cur. The single question to be decided in this case is. Boundaries . clcscribinff what boundary is described by the terms, " down the creek with "the mean the several meanders thereof. " And we think it perfectly clear Jjg\°f,^ that these terms describe the water in the bed of the creek, and mean its not the top of the bank. This we understand to be the settled rule, ^^^ top o^ wherever the stream is made the boundary. It is the water, and the bank. not the bank of its channel that is referred to. 6. Morrison v. Keen. Aug. T. 1825. 3 Greenleaf 's Me. Rep. 474. S. P. King v. King. 7 Mass. Rep. 496 ; Lunt v. Hol- land. 14 Mass. Rep. 149; Haye's exrs. v. Bowman. 1 Rand. Va. Rep. 417; Holme v. Richard, ibid, cited. Writ of entry. The tenant had mortgaged to the demandant la^fbound Vol. n. 63 498 BRIBERY. edonaiiv ^ certain tract of hind, "beintr all the land which he owned east er exteiius . In ihe and north of the mill stream," and the question was, whether ihel-ivor. ' ^^^ grant extended to the bank of the stream only, or to the middle of the channel. Per Cur. Mellenj C. J. Lands granted as bounded by a river, extend to the thread of the river, unless from prior grants on the other side, such a construction is negatived.* The Fame, 3 Mason. And a Avater course is the safest bomidary of real estate ; Den v. Wright, et al. 1 Peters' C. C. Rep. 64. The Proprietors of Clarmont v. Carlton. May T. 1821. 2 New^ Hamp. Rep. 369. S. P. Lunt v. Holland. 14 Mass. Rep. 150 ; Ex parte, Jennings. 6 Gowen's N. Y. Rep. 518. dudcs"lie Held by the Court, IVoodhury, J., that where the grant was of islands on land bounded on " Sugar River," the grant extended to the inid- the grant. ^^^^ of ^^e river, and that islands situated in the river, are own- ed by the persons who own the land on that side of the river, to which the}'' are nearest. , Graves v. Fisher, et al. May T. 1827. 5 Greenleaf 's Me. Rep. 69. And will Held by the Court, t-hat in a grant of a lot bounded on a riv- branch. cr, the side lines are to be continued to the main stream, though they may cross through a branch, which forms a junction of the river. MVtUti) Of ^^YOmiSt Ot J^flttrvinge. See tit. Marriage. * It lias been held that the common law doctrine, that fresh wuter rivers in which their is no tide, belong to the owners .of fhe adjacent banks, doesTiot apply to the Susquehannah and other large rivers ; Carson v. Blayar, 2 Binney 475 ; Palmer v. Mulligan, 3 Caines 312. t Bribery is the receiving or offering any undue reward, by or to any person whatsoever, whose ordinary profession or business, relates to the administration of public justice, in order to influence his behaviour in office, and inclinp him to act contrary to the known rules of honesty and ntogrity. Vide, 1 Hawk. P,_C. c. 67. S; 1 and 2 ; 4 Black. Com. 137. 3 Inst. 149. BURGLARY. 499 United States v. Worrall. April T. 17B8. 2 Dall. C. C. ■ U. S. Rep. 384. The defendant in this case was indicted for an attempt to An attempt , , , jj. to bribe is bribe an officer of the revenue, and the court ruled that an otter indictable, to bribe, is indictable though the bribe is not accepted. Newell v. The Commonwealth. Oct. T. 1795. 2 Wash. Va. Rep. 113. (88 ) This was an information ap-ainst the plaintiff in error, charg- In an infor ing hira with receivmg a bribe as an inducement lor him to vote biibeiy at for a clerk of the court, of which- he was a justice ; the infor-'J^'^ ekcij^^n^, mation omitted to state sufficiently that there was an election be stated 111 i ,1 , 1 .• ,1 * i. i ■ 'iM ^ ,i« with certftiii holden, or at that election the corrupt rote was given, ihe "e-^^ ^j^.^^^^,^ fendant below was convicted. Appeal to this court. elecuonwas •^ -^ _ _ liolden, and Per Cur. "VVe all agree that there is not sufficient certainty that, at ihat . » . -1 -1 • ,1 rr- Ti. • 1. /c • ii election, the in the information, in describing the office. It is not sufficiently ^.^^^ ^.^; alleged, that a majority of the justices were qualified; that aS'ven. court was holden ; .that an election took place, and that the vote was then given. Judgment reversed. (A) Reeative to the acts v.'hich constitute the OFFENCE, p. 500. (B) Relative to the time at which the offence MAY BE COMMITTED, p. 502. (C) Relative TO THE PLACE in which the offence MAYBE COMMITTED, p. 503. (D) Relative to the indictment, p. 505. (E) Relative to the evidence, p. 506. * The term burglary, is a compound of tlie Saxon words burgh, a jjouse, and laron, thert, and originally, signified no more than the robbery of a dwelling house ; but now it is defined to be a breaking and entering the mansion house of another, in the night time, with intent to execute some felon]/, irhelhir such felonious intention be executed or not; 4 PetersdorfT's Abr. 506,736. To constitute burglary, an cntrj', with any part of the body, as a hand, is suffi- cient ; 2 East. P C. 490. S. C. Fost. C. L. 107. Or a finger ; 1 R. &; R. C. C. 499 ; or foot, or with any instrument, introduced for the purpose of committing a felony; 1 Halo P. G. 555; Inst. 64; 1 Hawk. P. C. c. 38. s. 11 ; 1 And 115 ; 4 Black. Com. 227. As if a thief break a window of a house in the niglit lime, witli an intent to steal, and puts in a hook ; 1 Hale, P. C. 555 ; 3 In^t. G4 ; or sends in 500 BURGLARY.— TFAa/ constitutes the offence. {k) Relative to the acts ^vincii constitute the of- l-ENCE. The State V. Vv'ilso.n. Dec. T. 1793. 1 Coxe's N. Y. Rep. 439. S'unlS ^'^^ ^'"■- ^^ ^ '^^" lif^s up the latch of an outward door, ingan inner or if the outward door being open, he enters and unlatches, or chamber , , i i i ••;,,• door is bur unlocks a chPAmber-door, it is such a breaking as is necessary to glary. enter into the crime of burglary.* an infant to reach out ihe goods, or puis a pi-stol in at the window, with intent to kill ; lliis is a burfjlary, though tlte iiand of tlie culprit be not within the window ; 1 Hale, P. C. 555 ; 3 Inst. 64. And where thieves came by night to rob a house, the ownrsr wont out and struck one of them, another made a pass with a sword, at persons he saw in the entry, and in so doing his hand was over the threshold, this was adjudged burglary ; ^ East P. C. 490. Though where a thief broke a hole in a house, intending to rob the ownnr, but had not otherwise entered, when th« n t -r-k -r y^ i~\ ' some Uciy in arity; and the Court referred to 1 Rev. Laws of 1813, p. term. 318. and need not sue out an aliaj, or pi uries capias ; 4 Pctersdorff's Abr. p. 25. The writ must be tested in term time ; Bennet v. Sampson, Barnes, 407. And must bo made returnable on a general return day ; Inman v. Huish, 2 N. R. 133; Mills v. Bond, 1 Stra. 399. The test and return may be amended; Boucliier, v. AVhittle, 1 Hen. Blk. 29 1-; Davis v. 0>ven, 1 B. & P. 342 ; Carty v. Ashley, 3 Wils. 434. * De Grey, C. J. (speaking of the return of process.) '-The capias being tested in Trinity term, and returnable in Hilary term next following, is void, and a mere nulli- fy. There is a difFcrencebetwcen writs of mesne process and writs of execution ; for in the case of writs of mesne process, if a term be omitted between the teste and return, the cause is out of court, if it be in a personal action, for in real actions it is 508 CAPIAS AD RESPONDENDUM. Bronson v. Earl. Aug. T. I8l9. 17 Johns N. Y. Rep- 63. S. P. Flanders y. Etna Ins. Co. 3 Mason's U. S, Rep. 158; Rowley V Stodard. 7 Johns. Rep. 207. And no ad Held by the Court, that a defendant cannot take advantage of beTa^lfeVo" ^^^ misdirection of a capias ad respondendum, after he has ap- amisdirec peared and pleaded, the defect being amendable, And the SVp^penr''^ Court cited Tidd's Pract. 91; Stra. 155; 1 Hen. Bl. 222; 8 ance and g^^g^^ R^ 255. plea. '■ Vide, In the matter of William Livingston, 8 Johns. JV. Y. Rep. 351. 5. Filkins v. Brockaway. Aug. T. 1821 19 Johns. N. Y. Rep. 170. Asealoneo Held by the Court /., that the seal of the Court, cannorbea which has been used by impressing it upon process, and deliver- gain used, ing it to the sheriff, and even where it has not been delivered to him, it cannot be again used to other process. 6. Clendenin v. Allen. Sept, T. 1828. 4 New Harap. Rep. 385. S. P. Carpenter v. Butterfield. 3 Johns. N. Y. Cas. 145; Bird, et al. v. Carriat. 2 Johns. Rep. 342; Cheetham V. Lewis^ 3 Johns. Rep. 42; Fowler v. Smith. 15 Johns. Rep. 326. Service of After the service of the writ, and before the entry of the ac- is'the^com tion, the defendant died. And the question was, whether the racncement g^Jt abated, or ihe ac iio»- Per Cur. Richardson, C. J. When a writ has been served, the action is^onsidered as pending. It is an election of the plaintiff to proceed in the cause, and the defendant has then be- come a party to the proceeding. We are of opinion that the action was pending in court at the time of the defendant's death. otherwise ; in them there must be nine returns between the test and return ; also in case of a writ of e.NCcution, the cause is come to its end ; and in a capias ad satis- faciendum, a. defendant ought to lie in execution, and the sherift' ought to have- his bod}' always ready to bring to the court when he shall be commanded by habeas corpus. But in cases of mesne process it would be hard to suffer so long a return, because the body must lie in prison witiiout having an opportunity to make a de- fence." Parsons v. Lloyd, 1 Black. Rep. 845; 3 VVils. 341. CAPIAS AD RESPONDENDUM. 809 7. Greely, et al. v. Thurston. May T. 1827. 4 Greenleaf's Me. Rep. 479. S. P.Sullivan v. Alexander. 18 Johns. N. Y. Rep. 3. Per Cur. Weston. J. Prior to the service of a writ, the Andbefore plaintiff may change, modify or amend it at his pleasure; and piaintrff so may the sheriff by the direction of the plaintiff's attorney ; ^jJ'/^'^'^JIJ Sloan V. Wattles, is' Johns. Rep. 158. 8. Treat, et al. v. M'Mahon. Oct. T. 1822. 2 Greenleaf's Me. Rep. 120. Writ of entry. On the seisin of demandants, and disseisin of demand i\ r •! • /> ant's name tenant. Motion to amend by striking out the name of one o cannotbe the demandants. smcken from a writ The Court ruled the amendment was inadmissible. °^ entry. 9. Pixley v. Winchell. August T. 1827. 7 Cowen's N. Y. Rep. p. 366. Motion to set aside the capias ad respondendum on the ground Process will Mot be set that it was tested Aug. T. 1826, returnable the 24th of October aside after instant. Special bail had been put in. special baU ^ ^ - has been Per Cur. Without saying Vvhether this writ is absolutely P^'''"-. void, we are clear that it cannot be set aside at this stage of the cause. The defendant has taken a step by which he is regular- ly in Court, whether there be any process or not. We will not interfere, raerel}' because the party acted in ignorance, that the process was void ; 17 Johns. Rep. 63. 10, Griswold v. Sedgewick, et al. Oct. T. 1826. 6 Cowen's N. Y. Rep. 456. S. P. Smith v. Bowker. 1 Mass. Rep. p. 76. Daniel S. Griswold, the plaintiff, was arrested on a process, An action issued out of the Circuit Court of the United States, against ['^fy^^^^'f^ Samuel S. Griswold. He was the person intended, and as soon f^irestby a ,.,.,. • -1 !• II void process as the mistake in his name in the process was discovered, he before it is was discharged. ^"^^ ^^^'^^• Per Cur. Sutherland^ J. If the process, on the face of it, did not authorise the arrest of the plaintiff, then it w^as irregular and void as against him, and can afford no justification to any of 510 CAPIAS AD RESPONDENDUM. the parties concerned in the issuing or execution of it. In such a case it is not necessary that the process should be set aside be- fore an action can be sustained, nor is it material out of what ju- risdiction it purports to have been issued. A. is arrested by the defendants, and calls upon them to show their authority for the arrest ; they produce as their authority an execution against B., issued out of the Circuit Court of the United States, for the south- ern district of New York. We do not question the jurisdiction of that court, nor the validity or regularity of any of its proceed- ings, when we decide that this is no justification for the arrest. And the Court referred to Cole v. Hindson, et al. 6 T. Rep. 234 ; Shadgett v. Clipson, 8 East.,328; Wilkes v. Lock, 2 Taun.400; Cra\\^ord v. Satchell, 2 Stra. 1218. Vide Rev. Stat, of New York, Vol. 2. p. 347. sec. 3. where provision is made, that, " when the name of any defendant shall not be known to the plaintiff, a capias ad respondendum may be issued against such person by a fictitious name." 11. Sneed v. Weistek. Spring T. 1820. 2 Marshall's Ky. Rep. p. 281. When a re Held by the Court, Mills, J., that a return of non est inventus, ^^sUnviitus '^^ only proper when a defendant has a known place of residence is proper, jn the countyj and cannot be found by the sheriff, or when he is comorant in the county, A sheriff's return ought to contain enough to be understood without evidence aliu7ide the endorse- ment, JV. E. I.; Parker v. Grayson, 1 Nott & M'Cord, 171 ; and non est inventus can only be returned where the defendant has a known residence in the county and cannot be met with by the sheriff; wtZe -Greenup's Representatives v. Bacon's Executors, 1 Monroe's Rep. 108; Gully v. Saunders, Little's Select Cas. 424. An execution cannot be executed after the day on which it is re- turnable ; Vail v. Lewis, 4 Johns. Rep. 450. 12. TiLTON V. Parker, et al. Aug. T. 1827. 4 New Hamp. Rep. 142. S. P. BuLLARD V, The Nantucket Bank. 5 Mass. Foradefcc Rgp. IQO ; TiNGELY V. Bateman. 10 Mass. Rep. 343. tive service ^ ^ the court The sheriff returned to a writ of review, that he had served the v/rit, or *^i^ process by reading it in the presence and hearing of the at- putihcde torney of the defendants. Motion to dismiss the action for a fejidants to *^. plead the defective service. abatement. -Per CuT. Richardson, C. J. It is clear, that the defendants CAPIAS AD RESPONDENDUM. 511 cannot be held to answer to this writ, unless there has been a legal service. And w^e think the service is defective. But en- tertain no doubt that the court in its discretion, "may quash the writ on motion, or put the defendants to plead the matter in abatement. 13. Huntingdon v. Shultz, et al. Nov. T. 1824. 1 Harper's S. Ca. Rep. 452. Shultz was personally served with a capias ad respondcjidiim.^,^^'^^'^'^ °^ ^ Z . ^ the writ while attending a suit in a court of equity. There was no afn- wiihout re davit to hold to bail. |^",',""f ^^^ Upon a motion to set it aside, the court held, that it was not*^':'""^^^'^® ^ ' ' privilege an arrest within the meaning of the act of Assembly, of 1791,1'romariest* which exempts from arrest, " all persons necessarily, going to, attending on, or returning from, the same, shall be freed from ar- ' rests." The privilege applies only, to cases w-here bail is requir- ed, and where the body is liable to be taken in custody, and not to cases where the writ is served by delivering a copy to defen- dant with notice to appear. 14. Champion v. Pierce. Feb. T. 1830. 6 Halst. N. J. Rep. 196. S. P. Brookfield v. Jones. 3 Halst, Rep, 311. The defendant was arrested upon a capias ad respondeJidtmij^Vhere the without an affidavit as required by statute. providently Held by the Court, Ewing, C. X, that the writ had im^rovi- J.;';;;^''j;;f dently issued, and that the plaintiff was not entitled to bail ; that quash it. the court would not discharge the defendant on common bail, but would quash the writ. 15. Montgomery v. Scanland. Aug. T. 1829. 2 Yerger's Tenn. Rep. 337. Trover. It appeared the sheriff executed a blank deputation, A blank de , . , /-nil • • putalion to which was filled up by one of his-deputies. execute a On appeal to this Court, Withe, J., held that the deputation responden was void, that it must be filled up by the person who executes ''""*'^'^'°'*^' the writ; and the court referred to Housin v. Burrov%', 6 T. Rep. 122. * Fide tit. " Arrest," ante, vol. 1. p. 481. 512 CAPIAS AD RESPONDENDUM. 16. Embree v. Lamb. July T. 1S29. 3 Yerger's Tenn. Rep. 291. And the Held by the Court, Pec/c, J., that in all cases the capias ad writ against .„.', .. . bail ir\ast is satisjanevdum against bail, must be shown to have issued to the sheriff ^of sheriff of the county, in which the defendant had been arrested, the county that being the place in presumption of law where he was most in which the ,., , ^ , ,- i defendant likely to be lound. was arrest yi^^ ^^j^ u _g„^;:^5, ^^^^^^ p^ 5^_ 17. Jackson, ex dem. r. Hoag. May T. 1810. 6 Johns. N. Y* Rep. 59. Against A capias ad respondendum \xTi& issued against heirs and devisees, vbee^— can ^"^ °^ whom Only w^ere taken, the others being returned not not affect found, a default was entered against them, and execution issued the personal i i • i i lights of and their lands sold. taken "'^^ Held by the Court, that the judgment and execution could not affect the separate estate, or person of those not taken on the capias ad respondendum^ the shares of the devisees being separate and not joint. 18. Palmer V. Allen. Feb, T. 1813. 7 Cranch's U. S. Rep. 550. (Overruling, S. C 5 Day's Conn. Rep. 193.) The process Assault and battery, and false imprisonment. Allen sued United Palmer, who w^as a deputy marshall of the United States, for States does serving a process of attachment upon him, and committing him not adopt ... .. .. r/-.- themi«imMsto jail without a mittimus^ as is usual in the state of Connecti- °^J;°""^''^' cut. Palmer pleaded a special justification. The Court below adjudged the plea bad, for want of shewing a mittimus. Per Cur. Johnson^ J. The Court are unanimously of opin- ion, that the plea made out.a suflicient justification, and ought to have been received as such. The process act does not adopt the law of Connecticut, which requires the mittimus in civil ca- ses, 19. Parker v. Grayson. Jan. T. 1818. 1 Nott & M'Cord's S. Ca. Rep. 171. S. P. United States v. Parker, et al. 2 Dall. U. S. Rep. 373. Held by the Court, .Wott^ J., that a second writ cannot be con- An alias sidered as an aZif7.9, if it be issued more than a year and a day tested at after the previous one ; it ought to be tested at the return- of thereturn w^q original capias^ and made returnable at the next ensuing of the origin o i 7 s> al process, term. CAPIAS AD SATISFACIENDUM. 513 (txipim nXf Satisfacfnilum.* State v. Guignard. May T. .1821. 1 M'Cord's S. Ca. Rep. 176. Allison v. Rheam. 3 Sergt. & Rawle's Penn. Rep. 142. Held by the Court, Gantt, J., that a party may take out ^ f-- '^y,^"'fi^% fa.j and ca. sa. at the same time, but both cannot be served. may be is Vide Hammond v. Mather, 2 Cowen, 30, ^vhere the Court came time, held, that two writs oifi.fa. may issue at the same time into different counties; but if the plaintiff levies a fi. Ja. on the de- fendant's lands, and then imprisons him on a ca. sa.^ either may be set aside at the election of the defendant ; Young v. Tay- lor, 2 Binney, 218. 2. Bank of the United States v. Jenkins. Oct. T. 1820. 18 Johns. N. Y. Rep. p. 305. Held by the Court, Spencer^ J., that they had power to relieve modJ'ofTe against all imprisonments, either on civil or criminal process ; ''ef-'om J'"" , , , .., .,,. pruoiiment and where a party was imprisoned upon a ca. sa. irregularly is- on a ca. 5a. sued, the proper mode of obtaining relief, was upon motion, [^gj^i^^'^" "^° founded upon affidavits. Vide Cabell i\ Cooper, 15 Johns. Rep. 152. Wheeler v. Kailey. August. T. 1816. 13 Johns. N. Y. Rep . 366. An officer had a person in custody, on a capias ad satisfaci- , P^°^^^^ . •^ . . '^ to pay an of enduvij and the defendant promised the officer, that if he would ficer the release him, he would pay the amount of the execution, if he ^n g"gp^° failed to deliver him to the officer on a certain day, and the offi- ^^'o"' '^ ^e . -^ ' Will dis cer released him. charge the Per Cur. This was an escape from the officer; he had no aii-|.gs\ej^ ig thority to take a security for the redelivery of the person ar-'^'^^^- rested ; and no action can be sustained against the defendant, for the non performance of his promise. Vide Eckles v. Graham^ 1 Call. 492 ; Jones, et al. v. Hull, 1 H. ^ M. 212 ; Dix v. Evam, 3 Mvmf. 308. * As a general rule a capiat, ad satisfaciendum lies where a capias adrespondew dum, or latitat might have been used as process, to bring the defendant into court ; 3 PelersdorfF's Abr. 31. It lies against an infant an attorney, and a. feme covert; 2 Tidd. Prac. 1042. But upon process against husband and wife, it is now the prac- tice to discharge the latter; ibid. Vol. II. 65 614 CAPIAS AD SATISFACIENDUM. 4. Crammer v. Van Alstyn. Oct. T. 1812. 9 Johns. N. Y. Rep. 386. S. P. Bennet v. Trey. 1 Binney's Penn. Rep- 369 ; Bissell v. Kip. 5 Johns. Rep. 100, 163. Aca.sa. Motion to amend a ca. sa. is amenda . . ble. Per Cur. Where an execution is returnable out of term, it is not void, though liable to be set aside, on motion, for irregular- ity. It may therefore be amended, though it would be other- wise, as to mesne process. Vide 1 Johns. Cas. 31 ; Wilmerv, Harris, 5 H. &,• M. 2. 5. Gibbons v. Larcum. Oct. T. 1829. 3 Wend. N. Y. Rep. 303. S.P. Gordon v. Valentine. 16 Johns. Rep. 145. But will be MoX'ion io set cis'ide capias ad satisfaciendum, for irregularity when kreg '^he ca. stt. was tested 16th of May, returnable 3rd Monday in Oc- ular unless tober. the costs are paid. Held by the Court, Marcy, J., that where more than a term intervenes between the teste and return of the writ, it is irregular, and will be set aside, unless the costs be paid. The provisions in the Revised Statutes, 2 Vol. p. 197, being explicitly applica- ble to final, as well as mesne process. 6. Rogers, et al. v. Chapman. Oct. T. 1827. 7 Cowen's N. Y. Rep. 475. And the A Capias ad satisfaciendum had been issued in this case, with- eourt will Qyt previously issuing a ii. fa. on which Chapman had been ar- require a '^ •' , o././ i-ii- atipuiation rested. A motion was now made to discharge him. cases! ^'" Held by the Court, that where it appeared to them that only nominal damages could be recovered for the arrest, they would require the party to stipulate, not to bring an action ; but where the proceedings on the arrest was oppressive, and the process was irregular, they would not require a stipulation, but leave the par- ty to his remedy by action. 7. Ballou v. Hulbert, et al. Feb. T. 1806. 1 Johns. N. Y. Rep. 62. Orwilldis Mo\\or\ io sei ?LS\(\e i3l capias ad satisfaciendum .^ on the ground charge the ^f irregularity, party. o J But one of the defendants had been taken on the writ, and CAPIAS AD SATISFACIENDUM. 516 judgment had been entered, and execution issued against both. The Court refused to set aside the execution, but ordered the party to be discharged. Fide Pearce v. Affleck, e^aL 4 Binney, 344, where the Court said they would not interfere in a summary way, by discharging the defendant from execution, unless he made out his case en- tirely to their satisfaction. Where his equity is not clear the Court will leave him to his action. HoYT V. Peterson. Feb. T. 1809. 4 Johns. N. Y. Rep. 188. Judp-ment below, and certiorari to this Court. After the ccrft'- ■'^"*^ *''" '* o 1 quire the at orari, the defendant was taken on a ca. sa. from the court be-torneyto low, and paid the amount of the execution, and was discharged, costs. The judgment below, being affirmed in this court, the attorney of the defendant issued a ca. sa. in this court, against the plain- tiff in error, for the amount of damages and costs recovered in the court below, and the costs of error, which were paid to the sheriff. The Court ordered the money to be refunded, and the costs to be paid by the attorney, and satisfaction to be endorsed on the ca. sa. Ga thers v. Langdon. May T. 1794. 3 Har. & M'Hen. Md. Rep. 185. ^ . The defend The Court refused to hear a motion to quash a ca. sa. in the ant should absence of the defendant. p^ a'motion to quash ca. 10. '"• Stoyel v. Adams, et al. Sept. T. 1807. 3 Day's Conn. Rep. P* ^' After an ex Held by the Court, that after the time the execution is made '=''"",''" '* •' _ ' _ spent, an ar returnable, it has spent its force, and an arrest under jt is a tres- vest under it is a trespasa pass. '■ 11. Yates V. Van Rensa'laer, et al. Feb. T. 1810. 5 Johns. N. Y. Rep. 364. (2 ed. 363.) S. P. King v. Goodwin. 16 Mass, Rep. 63. ,tj-'J„- Motion to discharg-e the defendants from a ca. sa. ca.sa, being " discharged, The defendants were arrested and gave security to the sheriff ^'^"1'°^'^*' for the jail liberties. The plaintifif afterwards executed a writ- el? 516 CAPIAS AD SATISFACIENDUM. ing, in which he agreed they might go within certain prescribed limits, and that he would not prosecute the sheriff, or the bail ; and the defendants by an obligation under seal, agreed if they went beyond the limits, the plaintiff might arrest them again on the ca. sa. or take out a new one. They went beyond the limits, and were arrested on a new ca. sa. Per Cur. The agreement of the plaintiff amounts to a per- mission to the defendants to goat large beyond the jail liberties, and the law is well settled they cannot again be retaken.* Motion granted. Vide Hecher v. Jarrett, 3 Binney, 404, where it was held, that a defendant discharged from a ca. sa. upon a hah. cor. by the court, without notice to the plaintiff in the execution, is void, and the defendant may be retaken. And see west's Exrs. v. Hyland, 3 Har. & Johns. Rep. 200. 12. MiRTixN V. AsHCRAFT. Oct. T. lS29. 20 Martin's Lou. Rep. p. 313. S. P. Abbat v. Whitman. 19 Martin's Rep. p. 162. Contra, in Pcr Cur. Porter., J. The question is, whether a defendant having been arrested on a ca. sa. and discharged out of custody by the plaintiff, can be again imprisoned, under a writ of the same description. We have lately decided that a release of this kind by the plaintiff in execution, did not discharge the debt, as it does at common law ; and if it has not that effect, it does not discharge the person of the debtor. So long as the judgment remains unsatisfied, all the means given by the laws of the land to enforce it, are open to the creditor. The former laws upon this subject are not repealed by the capias ad satisfaciendum, * And this rule of law agrees with the Eiiglish cases. If a defendant be taken upon a ca. sa. and be dij;charged by the consent of the plaintiff, ha cannot be taken ao^ain upon that execution, or any other issued upon that judjrment; Vigers v. Al- drich, 4 Burr. 2483. Nor even where he gives a bond and warrant of attorney, v/hich turns oat (o be worthless; Jaques v. Withey, 1 T. Rep. 557. Nor even vfhcre the party was discharged upon his express undertaking to be liable to be re- taken ; Bockburn v. Stup>-;art, 2 East. 243. And on a joint capias ad satisfaciendum against two, if one be taken and discharged, the other is released ; Clark v. Clem- ent, 6 T. Rep. 525. The same principle was decided in Ballain v. Price, 2 Moorei 235. If a party die in execution, the plaintiiT may afterwards have execution of his goods; 1 Arc.'i. Prao. 279. So also if the parly escape, the plaintiff may sue out a nev/ execution ; 2 Tidd. Prac, 1047. A joint execution against two defendants, will not be effected as to one, by the discharge of the other under the insolvent law ; Naiden v. Bahis,e/ al, 5 East .147. Louisiana. CAPIAS AD SATISFACIENDUM, 517 13. Miller v. Miller, et al. Feb. T. 1819. 2 Southard's Rep. p. 508. Per Car. Southard, J. This is a suit brought upon ^ juf'g- uon ofrca. ment, on which a ca. sa. had been issued, and the body of the ««• .is pima .,„,,'"• .facie evj defendant had been taken and imprisoned. 1 he execution otijence of the this ca. sa is prima facie evidence of the payment and satisfac-P^^yP|^'^'-°'" tion of the judgment. ment. 14. Graves ads. Belser. Jan, T. 1818. 1 Nott & M'Cord's S. Ca. Rep. 125. Held by the Court, Grimkie, J., that it need not appear on the ft need not ■J ' ' ' '■ ^ . appear on execution that the sheriff's retui'n thereto, was sworn to. It is the sheriff's the usual practice of the sheriffs, to swear to the truth of the I'e- 1,^^"^ "^^^ turn viva voce before the clerks. And a return of cepi ?nor^uii,? t'o" that it rf • -1 " • • 1- 1 /^i • i' was sworn est\5 sumcient without stating where the prisoner died ; Christie to. V. Goldsborough, 1 Har. & M'Hen. 540. 15. Churchill v. V/arren. Nov. T. 1820. 2 New Hamp. Rep. p. 298. S. P. FoLsoM V. Chesley. ibid. 432. Assumpsit on a joint and several receipt given by the defen- seized on dant and one Turner, for a quantity of Ha v. The hay v%'as at- execution ' "1 J ■' . . remains in tached in the hands of the defendant by one of his creditors, and the debtor judgment obtained. An action was commenced by the plaintiff"" ' against Turner alone, on the receipt, and judgment rendered against him, and an execution taken out upon it, and levied on his property, and by his request the execution vvas taken back by the plaintiff's attorney. And the question was, whether a levy of the execution upon Turner's goods, v>-as a bar to this action. Per Cur. Woodbury, J. There can he no doiibl that the gen- eral property in the articles seized remains in the debtor until a sale, and the sheriff or creditor acquires by the mere seijiure on- ly a special interest. A seizure and relinquishment of property by the agreement of the parties in an execution against one joint and several debtor is no bar to a recovery against the- other debtor. Vide 7 Mass. Rep. 508 ; 14 Mass. Rep. 475. Vide Jackson v, Hewkill, 1 Leigh's Rep. 257, as to the lien of a ca. sa. upon the debtor's lands and goods by the stat, 1 R. C. c. 134. s. 10. 618 CAPIAS AD SATISFACIENDUM. 16. Smith v. Rosecrantz. May T. 1810. 6 Johns. N. Y. Rep. 97. Uffha^Jan ^^^ ^"^'' After the plaintiff has obtained judgment against election lo the defendant, he has his election to haA^e execution against the cutiona body of the principal, or of the bail ; but when he has taken gainst the Qjjg in execution, he then loses his election, and cannot resort to body of the rr i_ i • • • defendant the other. If he lakes the bail in execution, he cannot after- orhisbaU. ^y^rds resort to the principal, and take him in execution, for he has made his election ; and so if he has execution against the principal, he cannot resort to an execution against the bail. And the court referred to Higgins' case, 2 Bulst. 68, reported also in Cro. Jac. 320, and in 2 Mod. 312. 17. Allison v. Rheam. March T. 1817. 3 Sergt. & Rawle's Penn. Rep. 139. U&fi.fa. Trespass. The Court held, that where a ca. sa. was issued and ca. sa. . ^ i i - «» • i • r ^ • i are issued against one who haa sumcient real estate to satisfy the judg- Time thTlTr "^^'^^^ and on which he was arrested, trespass would lie against tercan only the party who sued out the writ, but not against the officer ex- be executed ■; . when the deecuting it. no"prope'rry Tilghman., C. J., observed, that it was the practice, and it was a very convenient practice, to sue outa^. fa.., and ca. sa. together, and that it was very convenient, but the party who sues them out, must take care not to execute the capias ad sat- isfaciendum^ until he has ascertained that the defendant has no property to satisfy the judgment ; Act of April 13, 1807. sec. 5. 18. Reynols v. Corp & Douglass. Nov. T. 1805. 3 Caine's N. Y. Rep. 267. Trespass Trespass. Douglass, as the attorney of Corp, sued the plain- will not lie tiff, and he was surrendered in exoneration of his bail, and was cution of superseded for not being charged in execution. Afterwards voidable Douglass issucd a ca. sa. upon the judgment, and he was impris- oned, and was subsequently discharged, by order of Douglass. It was contended, that the action would not lie: 1st because so long as the judgment on which the ca.sa. was issued, remain- ed unreversed, it warranted the writ ; the proceedings on which, could not, therefore, amount to a trespass. 2d That the execu- tion being according to the judgment, was a complete justifica- tion to the defendants. 3rd. That the statute authorising the supersedeas^ does not inhibit the subsequent issuing of a capias ad CAPTURE. 519 satisfaciendum. 4th. That in order to impeach the execution, the award of the supersedeas should appear on the record, that it might on the face of it, show how the now plaintiff was ex- empted from the operation of the ca. sa. Verdict for plaintiff. Motion to set it aside. Per Cur. Kent^ C. J., Livingston^ Thompson, J^., after re- ferring to Parsons v. Loyd, 3 Wils. 341 ; Turner v. Felgate, X Lev. 95 ; & T. Raym, 73 ; Philips v. Biron, Stra. 509 ; Barber v. Braham, 2 Black. Rep. 866 ; Tarltonv. Fisher, Doug. 671; Per- kins V. Proctor, 2 Wils. 382 ; Smith v. Boucher, Stra. 993; Prigg V. Adams, Carth. 274 ; Patrick v. Johnson. 3 Lev. 403 ; Martin v. Ridge, Barnes, '206. The verdict must be set aside. Capture.* And see tit. ''Prize.''' 1. The Grotius. Feb. T. 1815. 9 Cranch. U. S. Rep. 368; S. C, Vol. 8.456. S. P Richardson, et al. v. The Maine Fire AND Marine Ins. Co. 6 Mass Rep. 102 ; Cook V, The Essex Fire and Marine Ins. Co. 6 Mass. Rep. 122, 124. The question, as to the validity of the capture of the ship "^^".^'^^p * rotius, arose from the circumstance, that the capturing vessel ture, some put but one man on board of her from the capturing vessel, and al-^onc indica lowed the Captain of the Grotius, to keep his papers, and re- ''^*^<^f*"'" tain the command of the ship. seize — put Per Cur. Washington, J. In order to constitute a capture, son on some act must be done indicative of an intention to seize and re-''°^'''^ ^^'?'^ wiitten in tain as prize, and it always is sufficient, if such intention can suuctions fairly be inferred from the conduct of the captor. Putting Very ^^-g^^ "yj onboard as prize master, taking with him a copy of the priva-^ence. teer's commission, and written instructions from the Captain of the capturing vessel, is sufficient evidence of the capture. But see Wilcocks v. Union Ins. Co. 2 Binn. 574, where the Court held, that if the captors do not send hands enough to work the * A marilime capture is t'ue seizure of a vessel, or goods on board the vessel be- longing to a real or supposed enemy, or from some oilier cause justifiable by the law of nations, under authority from the belligerent state, with the intent to divest the actual owner of the property, and carry it into port for adjudication before some competent Court. And the capture is dated from the striking of the colours, which is held to be the real dcditio, and not from the actual possession of the vessel ; Wheat, on Cap. 52 ; The Rebecca, 1 Robinson, 233 ; Tiie Resolution, 6 Robinson, 13 ; The Edward and Mary. 3 Robinson, 305. 520 CAPTURE. vessel, this is not taking sufficient possession, and neutrals may consider her as abandoned. Slocum v. Wheeler. 1 Conn. Rep. 429. law«nuts Held by the Court, that courts of common law, may inquire nia int lyinqiure into the jurisdiction of the admiralty courts of the United States, ...>o tliejii - ■' ,,,..,..„ lisdiction of as to whether they had jurisdiction of a case, where goods were the admiral ^ j^ ■ ty courts in - certain cas es. 3. Talbott v. Three Briggs. Sept. T. 1784. 1 Dall. Penn. Rep. p. 95. S. P. Rice v. Taylor. Hopkinson's Ad. Cas. 16; Casix v. Tristram Shandy, ibid. 84. Presence Held by the Court, Dickenson, President, that persons in other ^i"^P|^^^fJgg vessels present when a capture is made, acquire no right or in- the party to terest in the capture, by seeing itmade; but if the persons in the an iniercst " i r ■ i • /• i in the cap other vessels are prepared lor action at the time oi the capture, '•'■"'®* they will be entitled to a share in it. 4. Cherriot v. FotJSAT. Dec. T. 1810. 3 Binney's Penn. Rep. p. 220. S. P. MoxoN, ET AL. v. The Fanny. 2 Adm. Decis. 309; Rose v. Himely. 4 Cranch'sU. S. Rep. 241 4 The Astrea. 1 Wheat. Rep. 125. And the Held by the Court, Tilffhman, C. J., that seizure and safe pos- prize not be _ -^ . . . taken i;(//(i scssion is all that is necessary, to constitute a valid capture — presi M. ^^^ possession of the captor is the possession of his sovereign.* The Sally. Feb. T. 1814. 8 Cranch's U. S. Rep. 382. Property en Per Cur. Slory, J. By the general law of prize, property gaged ni il , . -T ' I • i VI, iu • ? i le.:. ever country it may be found, unless It has been adjudged prize by a competent jurisdiction. And until that is done, the legali- ty of the capture is open to examination. To say that a ca[)ture which is out of the sanction and protection of the rights of war, can nevertheless derive a validity from the rights of war, is surely a contradiction in terms. The rights of war can only tal'c ])lacc among enemies, and therefore, a capture can give no right, unless the property capture. 1 be the property of an ene- my. 11. Pebstval v. Hickey. Aug. T. 18!:20. 18 Johns. N. Y. Rep. p. 257. TrMoass An English vessel chased the schooner Mary, supposing her may Desuii CAPTURE. fits \oloe tin enemy's vessel, and in cominer up to her ran foul, by*^*'"^*^'"'^* whfch the vessel was sunk. law courts , 1 1 1 1 • • r • t for an ille 1 he court held, that it was not a question of prize, but a mar- gal empture. itime trespass, of which the courts of common law have concur- rent jurisdiction with the instance court of admirally, and that an action of trespass could be sustained. But in the case of Novion V. Hallet, 16 Johns. Rep. 327, in error, overruling the same case in 14 Johns. 273, the court held, that no action could be maintained ai common law, for an illegal capture on the high seas as prize of war ; and no irregularity, or misconduct of the captor in the subsequent disposition of the priz« can confer ju- lisdiction. And that where the r.dmiralty jurisdiction had once attached, by taking the prize, it can never be divested by tny matter subsequent so as to give a court of common la\r jurisdic- tion over the case, as a tort or trespass. 12. The Joseph. Feb. T. 1814.8 Cranch. U. S. Rep. 451. S. P. The Alexander, ibid. 169 t S. C. i Gallis, 545. The Joseph, owned by Messrs. Dall & Vose, American citi-^'^'^'i«««die ^ * , . , ternntn of a zens, was captured by an American privateer, near Boston light- voyag^c are house. In April, 1812, she sailed with a cargo on freight, to^J-j'lf^'^J* Liverpool and the noith of Europe, and back to the United i'»uity can States. The vessel arrived at Liverpool, and in June following, en by a vol sailed with a carffo for St. Petersbu.-oh, under the protection of ""^"'y^^*^* f ... . . aiionoflhe a British license. On her arrival there, information was receiv- master for ed of the war w^ith Great Britain. In October she sailed from ^f^J'"^'^R",g St. Petersburgh to London, with a cargo, having wintered in f'""^'"^" Sweden, arrived al London in the Spring of I8l3, under convoy trade, of the British Ship Ranger. And in Mvy sailed for the United States in ballast, when she w'as captured. Per Cur. Washmgton^ J. The voyage was an entire one from the United States to England, thence to the North of Europe, thence directly, or indirectly to the United States. It is not de- nied, that if she was taken during the same voyage in which the offence was committed, though it was after it was commit- ted, she is to be considered, as being still in delicto^ and subject to confiscation. Even admit the outward and homeward voyages could be sep- erated, so as to render them two distinct voyages, which is not conceded, still it cannot be denied that the termini of the home- ward voyage, were St. Petersburgh and the United States. The continuity of such a voyage, cannot be broken by voluntary de* S24 CARRIERS. viation of the master, for the purpose of carrying on an interme- diate trade. That going from St, Petersburgh to London, -was not undertaken as a new voyage. It was, in short, a voyage to St. Petersburgh, to the United States by the way of London, and consequently, the vessel during any part of that voyage, if seiz- ed for conduct, subjecting her to confiscation, as prize of war was seized in delicto, she being near a port of the United States, furnishes no exemption from capture. It is not for the captor to know whether the vessel will enter the port, or not, and he is not to forego the opportunity of acquiring property, which under his commission, he is authorised to appropriate to him- self. The com moulaw lien is un known in the prize courts. 13. The Frances. Feb. T. 1814. 8 Cranch's U. S. Rep. 418. Appeal from the Circuit Court of Rhode Island, condemning certain British goods captured on board the Frances. Irving, a merchant of New-York, claimed a lien on the goods which had been consigned to him, by Robertson & Hastie, British mer- chants, for advances made to them and a general balance. Held by the Court, Washington, J., that the doctrine of lien at common law, is unknown in the prize courts. No lien upon enemy's property, by way of pledge, &c., is sufficient to defeat the rights of the captors in a prize court, where the goods re- main the property of the consignor; but if they had been sent to the account and risk of Irving, aud the property had vested in him, not subject to be countermanded by Robertson & Hastie, the lien would attach, and the capture would be subject to the lien. I. WHO ARE DEEMED COxMMON CARRIERS. (A) Carriers by land, p. 525. (B) Carriers by water, p. 527. II. DUTIES AND LIABILITIES OF, p. 530 (A) Commencement of their liabilities, p. 539. (B) Termination of their liabilities, p. 541. (C) The effect of notices, p. 644. (D) The effect of special contracts, p. 648. III. RIGHTS OF CARRIERS, p. 550. IV. PASSENGER CARRIERS. (A) By land, p. 561. CARRIERS.— TFAo are. 525 (B) By Water, p. 552. (C) Duties and liabilities of, p. 553. V. REMEDIES BY AND AGAINST. (A) Of the action and pleadings, p. 556. (B) Of THE evidence, p. 559. (C) Of THE DAMAGES, p. 561. (D) Against third persons to whom the carrier DELIVERS GOODS, p. 561. VI. LIABILITIES CRIMIJVJ2LITER,p. 562. I. WHO ARE COMMON CARRIERS. (A) Carriers by land. 1. DwiGHT V. Brewster. 1 Pickg. Mass. 50, 53. A common carrier is one, who undertakes for hire, or reward, Defimuon to transport the goods of such as may choose to employ him, from place to place. 2. Satterlee v. Groat. 1 Wend. N. Rep. 272. It is not, however, every person w^ho undertakes to carry P"^'^'? ' . . . "^ person who goods for hire, that is to be considered a common carrier. He carries for must hold himself out to the public, as such, for persons gen er- casual occu ally, and be eno;a<2;ed in it as a business. A private peron, P^''°"'^ therefore, may carry goods for hire, as a casual occupation, ^rosible as car hacvice, and yet incur no responsibility beyond that of ordinary ""* bailee for hire.* ♦ Savage, C. J., in delivering the opinion of the Court, in Alien v. Sewall, 2 Wend 344; says, *'Thc case of Saterlee v. Groat, is not an authority for tho de' fendant. There the defendant was not a common carrier, but one who had sent his team upon a special contract." Any person undertaking for hire, to carry goods of all persons indifferently, ig liable as a common carrier ; Gisborn v. Hirst, 1 Salk. 249 ; Bastard v. Bastard, 2 Showers, 81. And no specific agreement is necessary for tho price of tlie carriage ; Lovett r. Hobbs, 2 Showers, 129 ; Morse v. Slue, 1 Vent. 190, Where a coachman commonly carries goods, he is considered as a common carrier; ibid. Upshere v. A idle, Cora3'n 24. If a fnan travel in a stage-coach, and take his portmanteau with him, though he lias his eye on it, yet the carrier is not absolved from his liability Per Chambre J, Robinson v. Dunmore, 2 B. &: P. 419; Clark v. Gray, 4 £sp. 177 ; East. 564. There is no distinction between mails and other coaches, as to their li- ability ; per Ld. Kenyon,. White V. Bolton, Peck, N. J. 113; Harris v. Coster, 1 Car. & Payne, 636. Fide Jeremy's Law of Carriers, p. 12; 5 Petersdorff's Abr. 61 { (note.) But post-masters and deputy post-masters, are not liable as common car- riers; Lane V.Cotton, ef al. 1 Salk. 17; 1 Ld. Raym. 664 ; S. C. ; Whitfield v. Lord Lo Deapencer, Cowp. 7S4; Roivning v. Goodchild, S Wiis. 443. fi26 CARRIERS.— PFAo are, 3. Gordon v. Little. 8 Sergt. & Rawle's Penn. Rep. 500,533. S. P. Allen v. Sewall. 2 Wend. N. Y. Rep. 327, 340 ; 6 Wend. 335. S. C. Carriers by The proprietors of stage-wagons, and stage-coaches, which are deemed P^y '^^^'^^^^^ different places, and carry goods for hire; and so, such— re also are truckmen, teahisters, cartrnen, and porters, whose busi- sponsible ns . . • r i • c aninsurer.* ness it IS to carry goods for hire, from one part of a city or town? to another, all come within the description of carriers by land. In respect to carriers on land, it seems to be well settled eve- ry where, that by the common law they are responsible for all losses, except those occasioned by the act of God, or the enemies of the country. 4. DwiGHT V. Brewster. 1 Pick. Mass. Rep. 50. S.P. Allen V. Sewall. 2 Wend. N. Y. Rep. 327. 341 ; 2 Kent. Comf. 466 , Story, on Bailm. 324. Stage pro But the proprietors of stage-coaches, whose employment is prielors ^ / i i i i \ who carry solely to Carry passengers (such as hackney coachmen,) are baggage j^Qt held to be common carriers ; and are only responsible, as and goods ' . . as with pas will be Seen in a future page, for want of that care, which is re- be"deemed quired of bailees for hire, ordinarily. If, however, they carry common ciii- the baggage of passengers, they become quoad hoc responsible thetwolat as common carriers, or, at least, for due and reasonable care, al- ^^^' though they do not receive a distinct compensation therefor, for the baggage is accessary to the transportation of a person. And latterly, it would seem that passengers' baggage is placed upon the same ground as goods, as to liability in cases of loss. And where goods are also carried for hire, as is the custom with the proprietors of stage-coaches in small packages, they are, in re- spect to such goods, to be deemed common carriers. But see further, div. Passenger Carriers, posi, 551. 5. V. Jackson. April T. 1792. 1 Hayw N. Ca. Rep. 14. A waggon Case against a waggoner for a loss arising from an accident byaccidein ^" the road, and the court held him only to common and ordinary in the road diligence, as that was his common and ordinary business. held only to diligence. *Riley v- Ilorne, 6 Bing. R. 217, C. J,Bei^— "To give due security to property the law has adileu to tliat responsibility of a carrier, whicli immediately arises out of bis contract to carry for a reward, namely, that of taking all reasonable caro of it, the responsibility of an insurer. From this liability, ai an insurer, the carrier i* CARRIERS.— % voat^r. 627 (B) Carriers by water. 1. Richards v. Gilbert. June T. 1813. 5 Day's Conn. Rep. 415. S. P. Clarke v. Richards. 1 Conn. Rep. 54; V7il- liamsv. Grant, ibid. 487 ; Emery v. Henry. 4 Green- leaf's Me. Rep. 407 ; M'Clure v. Hammond. 1 Bay's S. Ca. Rep. 99. 101 ; Harrington v. Nyles. 2 Nott & M'Cord's Rep. 88; Allen v. Sewall. 2 Wend. N. Y. Rep. 327. 240. It would seem to be well settled in this country, that owners as well as masters of ships, steamboats, lightermen, hoymen, barge-owners, ferrA-men, canal-boatmen, and all engrged in the transportation of goods generally for hire, on water, wheth- er inland, or on the ocean, are to be included in the description of common carriers. The common law responsibility, as to car- riers, is generally maintained in the states, in its full rigour. Elliot v. Rossell. Jan. T. 1813. 10 Johns. N. Y. Rep. 1. S. P. Kemp v. Gantry. 11 Johns. Rep. 107. K?.T\i^ C. J. There is no distir.ction between carriers by land Nodistinc and carriers by water. Masters and owners of vessels are lia-tweencar ble, on the hiffh seas as well as in nort, as common carriers. neis by ' ~ •■ ' land and by The rule is general, and applies to shipments to and from aT^^'^'"' °" ^ . '■"6 ocean foreign port, as well as to internal commerce; and, within the or '"l^^"^- jurisdiction of a port as well as at sea. As where the defend- ants were engaged in the transportation of goods for hire, from the ports on Lake Ontario, to Montreal, in vessels on the Lake, and in scows from Og. to Montreal ; and undertaking to do so with care and fidelity ; and they were held liable as common car- riers. And the court in this case say, that there is nothing pecu- liar in the custom of the realm, for the marine law, and almost the universal law of nations, holds the carrier to losses not aris- ing from inevitable accident. only to be relieved by two things, both so Wbll known to all the country where Ihey happen, that no person would be so rash as to atcp-iptto prove that they had hap- pened, when they had not,— namely, the act of God, and the King's ene- 528 CARRIERS.— TFAo are. 3. Richards, et al. v. Gilbert, et al. June T. 1813. 5 Day's Conn. Rep. 415. S. P. Halsey v. Brown. 3 Day's Rep. 346 ; Colt, et al. v. M'Mechan. 6 Johns. N. Y. Rep. 160. Owners of Assumpsit acralnst defendants, as common carriers. a vessej car ^ o 5 ryingfor The plaintiff shipped clover seed on board the Frances, be- inland river longing to the defendants, to be carried from Norwich to New- "yg"gP,^"j^ London. The night previous to the sailing of the vessel, the moncar ice formed in the river so as to impede her sailing and cut the hull of the vessel, whereby the cargo was damaged. The court charged the jury, that the defendants were liable for all losses not arising from the act of God, and the public enemies. Ver- dict for plaintiff. Motion for a new trial. Per Cur. Smithy J. There is no doubt of the correctness of the general principle advanced by the court. New trial refused. 4, Craig v. Childress. Aug. T. 1823. Peck's Tenn. Rep. 215. Boats and The defendant took on board his boat a quantity of produce, hilTnd^wa ^^lo^gi^g ^o the plaintiff and other persons in his neighbour- ters liable hood, to be Carried from Nashville to New Orleans. In crossing Proof ofdue the Current below Nashville the boat was carried to the shore diligence is ^nd stove. on the cam er. Held by the Court, Haywood., J., that the defendant undertak- ing to carry the produce of his neighbours to market for hire, must be considered as a common carrier, and is bound by the same rules of diligence, and subject to the same responsibility. And the proof of due diligence, must come from the carrier, nothing excusing him, but the act of God and the common en- emy. 5. Emery v. Hersey. April T. 1827. 4 Greenl. Me. 407. S. P. Thompson v. Snow. 4 Greenl. 264. Thehirerof Assumpsit for the value of a quantity of boards, which the & vessel IS A •/ not owner plaintiff had shipped on board the defendant's sloop at Newbury has^he'^en P°^*' ^^^ consigned to the master. tire control f jjg fg^^g \^ ^j^g ^ase were proved by the master, who was ad- and manage . . ^ ^ '' i i. x xv. mentolit. mitted as a witness, and it appeared the vessef was let to the master on shares ; who was to victual, man and sail the vessel, C ARmERS.~By wafer. 529 and rereive one half Ihe freight money, and $5. CO for each trip she might perform. Per Cur. Wcsfon., J. Owners of vessels employed in the transportation business, are common carriers. It is in testimony in this case, that the usage at Saco is, when lumber is shipped on freight, for the master to sell it, and pay over the money 1o the shipper, unless directed olherwise. The master acts within the .scope of his employment, and the owner is responsible for the master's fidelity; 11 Johns- 107. To constitute the hirer owner, pro hcEC vice^ he should have the possession, entire controul and direction of the vessel ; 15 Mass. 370; 16 ib. 336. The conduct of the defendant negatives the assumption that the master had the entire controul of the vessel. The case of Thompson v. Snow% 4 Green. 264, varied essential- ly from this. There the entire management of the vessel was in Hall, the master; the liability of the general owner ceased. 6. AvMAR V. AsTAR. Aug. T. 6 Co wen's N. Y. Rep. 266. But see CO?; ^. Schieffelin v. Hahvey. 6 Johns. Rep. 170; Elliot v. Rossell. 10 ibid. 1. Assumpsit for ihe xalne of certain goods, shipped on board ,^,,^|'^^^.„g,.g the defendant's vessel, at N. 0., for N. Y., but which were de- "^f a vessel stroyed by rats on the voyage. ihe billot lading, in the usual i^ie as com form. ' ' "'""f'TL eis ; but ev The maioritv of the Court, held, that evidence of usage, as to'il^iiceof the meaning of the words, "perils at sea," could not be ad- thclnean mitted in evidence. " '"^'f-n.r woicls, per Per Cur. The master of a vessel is not responsible like a ''^ f^'" ''^^. '■ .sea," are m common carrier, for all losses, except they happen by the act oi admissible. God, or the enemies of the country. And the true question to be submitted to the jury, was, whether the master had used or- dinary care and diligence, in carrying the goods in question. Whether a cat, or smoking of the vessel, is the proper {)recau- ion against rats, is for the jury. And they recognize the doc- trine laid down by Phillips, ( Tr. on Ins. 250,) that actions de- pendingon the law of marine insurance, are not applicable, and the master of a vessel is not within the term, common carri. er. Judgment reversed. Any man that undertakes to carry goods is liable to an action, be he common carrier, or whatever iie i.--, if througli his neglect tiiey are lost, or come to any dam- age ; per Holt, in Coggsv. Bernard, 2 Ld. Raytn. 909. And this, whether he take any reward for his labour or not ; Hutton v. Osborn, 1 Scl. N. T. 407; Nelson v Vol. II. 67 ^30 CARRIEKS.— Duties and liahiliiies of. 7. Roberts v. Turjjer. May T. I8l5. 12 Johns. N. Y. Rep. 232. A p?r?on who receives, and forwards sroods, takino- upon him- \ mere for i/- +1 . . b ^ or warding ^^'^ ^"^ exppHses ot transportalion, receiving therefor a compen- meichant, satiun from the owners, but having no interest or concern in the who re , " ceives Vessels, or wi^ggons by which they are transported, and hav- u°a°Jw or' ^"^ "" interest in the freight, is not to be deemed a common car- der is a rier, but a mere warehouse-man and agent. mere ware houseman. • 8. Platt v. Hibbard. Oct. T. 7 Cowen's N. Y. Rep. 497. So, where a person is atthe same time a common carrier, and a ^ .,, forwarding merchant, and receives goods into his ware-house to So, ifheis , . ° , -. , ^ ^ , n ^ 1 both carrier be torwarded, according to the future orders oi the ow^ners ; and nou^^^^'^ the goods are consumed by fire, before such orders are received, toforv/iird or the goods are sent in transit ; held, that in such case, he is accord inc; to i i i i , » future or Chargeable only as a ware-houseman.* ders, he is not liable as carrier be fore the or II. WHAT ARE THE DUTIES AND LIABILITIES OF ccived!' CARRIERS. 1. Bell v. Reed. 4 Binn. Penn. Rep. 127. M'Clitre v. Ham- mond. 1 Bay's S. Ca. Rep. 99. are bound Where the carriage is by v.ater, the carrier is bound to pro- Mack intosli, 1 Stark. 237. And tiie same rule was held to apply to the commander of asliip, wiio had undertaken to carry bullion belonging lo a merchant; Hodgson V. Fullarlon, 4 T^iun. 787. And the master of a store yhip in the public service; Ilatchwell v. Cooke, 6 Taun. 577. It is said by the Court in the case oi Hutlon v. Osborn, ] Sel. N. P. 407, that the only difference between a common carrier and a private carrier is, that a common carrier is obliged to undertake the carriage of good-!, and a private person is not. See Robinson v. Dunmore, 2 B. & P. 417, where thu Court held, that a private carrier was only responsihleto the extent of his con- tract. And this latter authority accords with our definition, as laid down by C.J. Parker, in Dwight v. Brewster. It would seem there must have been some mistake in the report of the case in 6 Cowen, 266. It mast, we think, have been a private vessel, and not engaged in the transportation of merchandize for ])ersons in general; or, a case where goods weic received merely foi accommodation of some particular individual, (not receiv- ing them for persons in general ;) and as such, perhaps, should have been deemed to have l)cit is a mere accessary to the carriage, in such a case the carri- er's Ui^biiity will commence, with the receipt of the goods ; 5 T. 11. 27 ; ibid. 389. CARRIERS.— Dw^/m and liahilities of. 531 vide a ship ti r? sioned by in the bottom of the vessel, and a loss resulted, it was held to be pus ai sea, a peril of the sea, in a case where the master had been in no tle-sg^ '-fViicie fault, but had used every proper precaution to prevent it. isnodcfauk ' J r 1 1 A in the (,<^j.,.i Martin v. Salem Ins. Co. March T. 2 Mass. Rep. 429. S. P. De Peister v. Columbian Ins. Co. x\ug. T. 2 Caine's N. Y. Rep. 85. Sewal, J. In the case of Rhol v. Parr, 1 Esp. 445, where a But loss by ' •) I ^ worms IS vessel was insured to the coast of Africa, there and back ; had n.naicril been wholly destroyed by the worms common to the rivers of hot climates, and a total loss was demanded, upon the policy. The decision was against the demand, and upon this ground, that the loss was like the wearing and natural decay of a vessel, and not by the perils of the sea. But in the latter case, the insurer was held liable for an acci- dental injury, where the vessel, the subject of insurance was seaworthy ; and Livlngsfon., J. says, " it may seem hard to hold an insurer liable for the defective nature of the thing insured, but where the subject of insurance is seaworthy, is it not a part of his contract, that in case of accident, he will defray the ex- pense of placing her in statu, quo9 4. Colt v. M'Mechan. Aug. T. 1810. 6 Johns. N. Y. Rep. 160. Where a vessel is beating up a river against a light and varia-;^^.''^^"^'^^^ ble wind, if, while changing her tack, the wind suddenly fails or the sucUlen changes, and she goes ashore, and her cargo is injured, this was .i,e wind ^is held a loss by the act of God ; it clearly appearing that the mas- j|^^-^j^^^J^^ ter was not in fault. act of God. Spencer, J. The case 1 Stra. 128, shows that a sudden gust of wind, by which the hoy of the carrier, shooting a bridge, was driven against a pier, and overset by the violence of the shock, was adjudged the act of God. The sudden gust in the case of 632 CARRIERS. — Duiies and liabilities of. the hoyman, and the sudden and entire failure of the wind, suffi- cient to enable the vessel to beat, are equally the acts of God. Kent^ C. J., concurred generally in the doctrine of the court, but thought there v:as a degree of negligence in the master in sailing so near the shore under a light and variable wind, that a failure in coming about, w^ould cast him a ground. A common carrier is only to be excused from a loss happening in spite of all human effort. 6. Smitit, et al. v. Wright. Way T. 1 Caine's N. Y. Rep. 43. S. P. Lenox v. United Ins. Co. 3 Johns. Cas. 178. Tfthe^oods Where cnods are laden on deck; and in a storm at sea, are tobesw thrown overboard, to save the vesfcl foundering, and to save edondeck.^j^p lives of the crew, held ro be a loss by the act of God, al- and aie ' , • thrown o though occasioHcd by the immediate agency of man. ofne But it would scem that goods stowed on deck should be so case I owner musishijiped, and in such case from their peculiar situation, are lia- bear ihe b]e to be thrown over to lighten the vessel, in case of distress, if they are necessarily, so thrown over, the carrier is not liable, and the owner cannot have contribution. loss. 6. Bahcer v. Bruce. 3 Conn. Rep. 9. Butifthe "Where, however, the goods are placed on deck without the flwopedy consent of the owner, or a custom binding him, and are in con- fjlacedon sequence ejected in tempestuous weather, held, that the carrier deck, and a m i r zi i * loss ensues, was responsible lor the loss.* the carrier is liable. ij Williams v. Grant. 1 Conn. Rep. 487. Th- carrier Where the vessel, if a common carrier, strikes on a rock, not is not liable generally known, and the roaster did not actually know it, and vessel if he conducted himself properly, and no fault is to be imputed rock not" '""to liimj held, that he was not liable. It would be otherwise if generallv the master be ignorant of navigation in that particular place, and known, if in, ... , , no fault. have no pilot on board. Held, that all misfortunes and accidents, arising from inevita- ble necessity ; and which human prudence, could not prevent, * In the casoof Bancroft, Alcyno R. 22, a ferryman carrier threw abox of jovvels overboard in a f^torm, and was held liable. ]f the doi trine of this case be, pays Judge Stor}-, l.'iat jettison will not, in a cleir case of necessity, discharge the carri- er, it is notlaw ; Story on Bailm. 339. CARRIERS.— Du^i'e* and liabilities of. 533 are to be included in the expression, act of God. And by " perils of the sea," are meant inevitable perils, or accidents upon the water ; and by such perils or accidents, common carriers are ex- cused, prima faae^ whether there is a bill of lading containing the express exception of, " perils of the sea," or not.* 8. Backhouse v. Sneed. July T. 1808. 1 Murphy's N. Ca. Rep. p. 173. Case, ao-ainst defendant as common carrier. ^ ??";.'^'' 'f, ' o . linblo for all Defendant took on board his schooner 270 bushels of Corn, to accidents be carried for t' e plaintiff, from Wilmington to Swansborough. ^^^^u/b^^y hu In going out of the harbour, the rudder of the schooner was bro- '"^""^^^'"■s 111 ii'ci 1 \K\\e\ her ken by the sea, the vessel druted on shore, and the cargo wasanynegli lost. The vessel had lately been repaired by a skillful work- ''^"'^^i'® •' r J proved or not. * The Court held, in the case of Pickering v. Darcl;iy, 2 Roll. Abr. S?4C, that, where tlie ship of ihe carriers was over|)Owered and pimiderrd upon the hijrh seas by pirates, tliey were not liable. And where a ship was run down in day lijilit by another ship, whicli was sail. ng in an opposite direction to her. both of which kt-pt to the windward, but it was mailer of doubt whether the defendant's ship ought to Ijavc undcrtitood the course which the other would pursue,, and to have borne to the leeward, and no blatne wais considered to be imputable to him for not having done so» nor was any fault attributable to the persons who had the conduct of the othersliipi the loss was held to bo a peril ofthe sea ; Buller v. Fisher, A''bot', 268. And where a ship is run down by another, not through design but negligence, it is a loss by the perils of tlie sea ; Ssrith v. Soott, 4 Taun. 126 ; Buller v. Fisher, 3 E p. 67. The precise import of this phrase," jierils of the sea," is not p(;rlia|)s exactly set- tled. Tiiey have gonerally been held to denote the natural accidents peculiar to the sea, but in some cases have been extended to events not arising from natural causes ; 1 Bell. Com. 579. As in a case of a loss by collision of two, where blame is not imputable to cither; and a capture by pirates, as before stated. The distinctiong upon which questions of this sort turn are sometimes very nice. If the situation of a rock or shallow is generally known, and the ship is not driven upon it by adverse winds, the loss Is to be imputed to tlie fault of the master: and this, whether from rashness in not taking a pilot, or from ignorance or unskilfulness, he is equally liable. Where defendant's hoy was coming through a bridge, and by a sudden gust of wind the hoy was sunk, Pratt, C. J. held it an act of God, and il.e carrier not liable ; Amies V. Slovens. 1 Lev. 128: Lyon v. Mclls, 5 East, 428; Dale v. Hale, 1 VVils* 281. In Forward v. Piitard, 1 T. Rep. 33, the court say, now what is the act of God ? We consider it to mean soiiielhirig in opposition to the act of man ; for ev_ ery thing is the act of God that happens by his permission ; every thing by his knowledge. To prevent litigation, the law presumes against the carrier, unless he shows it was done by the king's enemies, or by such act as could not happen by the intervention of man, as storms, lightning, and tempests; Vide Abbott on Shipping. Where a cargo received injury by steam, and it appeared, that the Hteam escaped through a crack in the sleam-boiicr, occasioned by the frost, the Court held, that at the season of the year, in which such injuries by frost are likely to occur, it is grosa negligence in the carrier to fill up his boiler with water over night, without keepings suitable fire to prevent such accident; Siordat^v. Hall, 4 Bing. 607* 634 CARRIERS. — Duties and liahilities of. man, but the interior of the rudder was found to be rotton, which was unknown to the defendant. Held by the Court, Taylor, J. ^ that the defendant was liable. A common carrier is liable for all accidents which can occur by the intervention of human means, however irresistible' they may be, and which he is considered as insuring against. It does not alter the case, whether negligence be proved, or not, or whether the averment of it, in the declaration, be expressly neg- atived.* 9. Harking v. Lyles. Nov. T. 1819. 2 Nott & M'cord's S. Ca. Rep. 88. S. P. Rutherford v. M'Gowen. 1 Nott & M'Cord, 17; Cook v. Gourdin. 2 Nott & M'Cord's Rep. p. 19. The com n • i. mnn law Case agamst a common carrier. rule of ihe The plaintiff shipped a quantity of cotton on board defen * The principle in the text accords with the English cases; Jackson v. Rogers, 2 Show. 104 ; Lane v. Cotton, 1 Ld. Rayin. 654 ; Batson v. Donovan, 4 B. &: A. 32. His liability is by the custom of the realm and attaches in all cases of loss, unless occasioned by the act of God, or the king's enemy's ; Forward v. Pittard, 1 T. R. 27. And the carrier is held to be an insurer; Thoiogood v. Marsh, 1 G,N. P. C. 105 ; Forward v. Pittard, 1 T. R. 27. But tlie law recognizes the implied engage- ment of the carrier, as a contract on his part ; Boddle v. Wilson, 6 T. R, 369 ; Dale V. Hall, 1 Wils. 282 ; Beck v. Evens, 16 East. 244. The defendaat was held liable where his vessel was driven against an anchor in the river, and the plaintiff's goods on boaid damaged ; The Proprietors of the Trent Navigation v. Wood, 3 Esp. N. P. 127; Dale v. Hall, 1 Wils- 282. So the court held the carrier liable, where th» jury found the goods were destroyed without the negligence of the de- fendant, the goods being destroyed by fire, which broke out in a booth contiguous to the place where the goods were deposited ; Forward v. Pittard, 1 T. R. 27. So he was also held liable, where his ship was broken into, by irresistable force in the river Thames, and the goods stolen ; Barcley v. Heyguin,cited 1 T. Rep. 33 ; Cogg V. Bernard, 2 Ld. Raym. 909. Or when he is robbed of the goods ; Barker v. War- ren, 2 Mod. 271. And the carriers liabilit}' continues until he has delivered the goods; Wardell v. Mourillyan, 2 Esp. 693; Hyde v. The Trent Navigation Company, 5 T. Rep. 389; 1 Price, 328; Garside v. The Trent and Mersey Navigation Company, 4T, R. 581.- Where the consignee had no warehouse to receive the goods, and direct- ed the carrier to let Ihera remain in his waggon until he called for them, the court held the carriers liability ceased on the arrival of the goods, Richatdson v. G"ss, 3 B. &L P. 127 ; Scott v. Pettit, ibid. 472. And in Bodenham v. Bcnnet, 4 Price, Wood, Baron, observed that the carrier docs not merely engage safely to carry, but he engages to deliver ; Leaving the goods at an inn, is not sufficient, but they ought to be taken to the consignee's house ; Starr v. Crowley, 1 M'Leland &i Younge, 129. Or at least he ought to give notice of their arrival , Colden v. Manning, ct al.3 Wils. 429. Tlie place of delivery may be regulated b)' usage ; Hyde v. The Trent and Mersey Navigation Company, 5 T. Rep. 396 ; Duff v. Budd, 3 B. & B. 177. The usage of trade at a particular place, as to the delivery is held binding ; Cat- ley v. Wintringham, Peak. N. P. 202. In a question as to the liability of Hoymen on delivering goods on the wharf. Lord Kenyan^ left it to the jury to say what was the custom ; Wardell v. Mourillyan, 2 Esp. 693. CARRIERS. — Duties and liahilities of. 535 danl'sboat, to be carried to Charleston for him. The boat up- Ji^abiUty^^^^ set in the Santee Canal, and threw the cotton into the water, piie^ with The boat was reloaded, an J when she arrived at Charleston, the [J^^'^p i'^^^^ cotton was found tobe damao-ed to the amount of $ 250. TheinUuulwa defendant proved that he was usually careful and skilful, that his boat was in good condition, and manned by a competent crew. Verdict for plaintiff. Per Cur. Johnson, J. The question has been settled in this Court. The carrier is liable for all losses, except those oc- casioned by the act of God, or the enemies of the country. There is no class of cases, to which the rule of law will apply with more force or propriety, than to those who navigate our in- land waters, through which channel, almost edl the produce of the country is likely to find its way to a market, and therefore, deserves well to be protected. 10. Marsh, et al. v. Blyth. Jan. T. I8l8. 1 Nott & M'Cord's S. Ca. Rep. 170. S. P. Colt, et al. v. M'MechexV. 6 Johns. N. Y. Rep. 160. Case against a common carrier. -And wheth ° er die loss It appeared the defendant's vessel was run down by a coast- happened er beating in the same direction, and the question was, wheth- ^^(hgsg.j or er the defendant was liable, under such circumstances. The "^s''?*^'"^^' IS a cjiies judge charged the jury, that the defendant was liable, whether lionforihe negligent, or not, and that it was not a peril of the sea. J"'^* Verdict foj" plaintiff. ^ Per Cur. Gantt^J. The Court are of opinion, that the ques- tion is one of fact, which ought to have been left to the jury. The verdict must be set aside. 11. Hunt v. Morris, et al. June T. 1819.6 Martin's Lou. Rep. p. 676. Petition in the usual form, and claims damage for goods put Liability of 1 1 , , , I 4. T • I • • tu i f AT cimmoii car on board the steam-boat Vesuvious, lying in the port of iNt^w- ,.jj,,.j, j,^Lq^j Orleans, to be carried to Natches, but which were lost and de-'^-=^'''^- stroyed by fire, on board the vessel. Per Cur. Matthews, J. In examiningthe responsibility of a carrier for hire, he must be considered as a bailee of sroods, for the purposes expressed in the contract, and liable under it, according to the common import and meaning of such a contract, where nothing is expressed, which creates an increase of obli- 536 CARRIERS. — Duties and liabilities of. gation ; and here we mny lay aside a;!! the doctrine on the sub- ject, as inapplicable, which proceeds from the principle of hold- irig common carriers responsible, like insurers, ('e^sidered simply as bailees on a contract of hiring of carriage, they are answerable for ordinary neglect, which is the omission of that care, which every man of common prudence, and capable of governing a family, takes of his own concerns^ This is a definition and a rule laid down by Sir Wm. Jones, as founded on the plain elements of natural law, and the principle.s contained in the codes of different nations, on this branch of jurisprudence, which we believe to be in conformity with the provision of our own laws on this subject. Our statute provides that "carriers and watermen may be lia- ble for the loss, or damage of things, entrusted to their care, un- less they can prove such loss, or damage, has been occasioned by accidental, or uncontrolable events; Civ. Code., 2S4^ art 63." The French text has the words, ens fortiiit vu force majeure. By another article, they are subjected to the same obligations, and duties, which are imposed on tavern-keepers; art. 61. These are made responsible for thefts and damage done to the goods deposited with them, whether they occur by the acts of their servants, or persons who frequent the tavern ; ihey are not ansv^-erable for robbery, nor where the l»heft Is committed, after breaking open the outer door, or by any other extraordinary vi- olence. This clause seems to relate, solely, to thefts of proper- ty, deposited with an inn-keeper, and we cannot perceive its ap- plicability to the present case, iilthough relied on by the counsel of the plaintiff. The rule by which the responsibility of carriers, for loss or damage, is to be ascertained, is found in the part of the code just cited. They are excused by accident, or overpowering force, eas for tuit on force majiure, whenever the first does not occur by their negligence, and they do not unneces>arily go in the way of the latter. In other words, if they have used ;hat due dili- gence in the performance of the contract, which the nature of their situation requires. It appears, by the expressions of the code, that the accident, or overpowering force, must be proved by the carrier, in order to excuse his failure, to i;erform his un- dertaking, according to agreement. In cases, where the loss, or damage, arises from occurrences entirely beyond the control of the carrier, such as an attack by the public enemy, a storm or tempest, it is enough for him to prove the fact, and he who claims compensation for the loss, is to prove the fault, or mis- CARRIERS. — Duties and liabilities of. 587 conduct of the carrier, in order to recover against him. But in those cases, which are not readily supposed to happen with- out negligence, such as a loss by robbery, fire, &c., the carrier is bound to show, that they happened without any fault, or neg- ligence on his part, which, being a negative proposition, can on- ly be established by evidence of the ordinary care and attention, usually given by diligent men on like occasions: Curia Phili- pica, 509 J art. 31. This rule gives to the plaintiff the advantage of implied or presumptive evidence of negligence, on the part of the masters and owners, which they are bound to disprove by showing due diligence. How far they have succeeded in this, is to be ascer- tained by the evidence and circumstances of the case. The plaintiff thought fit to place his goods on board of a steam-boat, which, being propelled through the agency of fire, must from the nature of things, be more exposed to destruction, by that element, than boats which are so, by the application of ordinary powers. At the time when the boat was burnt, the agent of the owners, (who has become one of them since the boat was repaired,) was on board, as well as the master. The usual number of men skilled in this sort of navigation, were em- ployed in conducting the boat on the short trip, made for the purpose of procuring wood, during which, the accident happen- ed, which destroyed the boat and cargo. We are clearly of opinion, that this trip of itself, does not establish such a neglect, on the part of the master and agent, as will authorise a recovery against them, or the owners. The circumstance, under which it was undertaken, and the occurrence, whilst it was in execu- tion, are much relied on, by the counsel for the plaintiff, as showing what they term actual negligence, in leaving the port late, so that the boat would probably be in the night on her re- turn, and suffering her to get aground, whilst the hands were getting in the wood. As to the time of day, in which the trip was begun, it may be observed, that all maters of steam-boats, are in the constant habit of running them by night, whenever extraordinary darkness does not forbid it, and this appears to us a sufficient excuse for the conduct of the parties, in the present case. The risk by fire, if there be any difference, is less by night than by day, because its commencement, in any part of the boat, would be more readily discovered in the dark. The circum- stance of the boat being run aground, in the slight degree, in which it appears from the evidence, that she was, is one of Vol. II. 68 t38 CARRIERS.— Di/^ic* and liabilities of. those accidents, which often happen in this kind of navigation, in v.hich the hoats have so frequently to approach the shores of the river, for the purpose of getting wood; and it ought not to be considered as piuof ofculpable neo;ligence. It appears, from the whole tenor of the evidence on the part of the defendants, that the master, and all his men on board, were in the actual performance of their respective duties, when the unfortunate event occurred, which involved the property of both the plaintiff and defendants, in one common destruction, and that no negligence can be attributed to those who were con- cerned in the navigation of the boat, which was consumed, to- gether with her cargo. It is to the plaintiff, damnum absque in- juria, 12. KiMBAL V. Blanc, et al. Dec. T. 1829. 20 Mart. Lou. Rep. p. 3S6. S. P. Carrol v. Waters. 9 Mart. Rep. 500. Tlianow Held, that the new^ code in Louisiana has wrought no change SaL^hus''" in the liability of steamboat ow^ners. "°' ?.^^'J'.'5'^'^ Martin., J. If a vessel be hired by a partnership, for the pur- tn« It.ibtJi ' •' . . " ties nf>tcam pose of carrying properly, the members of such association are boat own J)q^,j^j {^i sgHdQ to those injured by their negligence, or that of their agents. But the bare circumstance of their being joint owners, cannot produce this effect. According to the decision in Carrol v. Waters, 9 Mart. 5U0, joint owners of steamboats are only liable according to their interest in such property — not bound in solido in contracts concerning its management or use. 13. CAMPBEI.L v. Morse. Nov. T. 1824. 1 Harper's S. Ca. Rep. p. 468. A carrier is Case against the defendant as a common carrier. liable where ' , , , ^ , , i • i i i i -it heisstaile-i It appeared the defendant's waggon, which was loaded with ihe^S'e th^ plaintiff's goods, stuck fast in a fording creek, the bridge being impasbeingf impassible, and the water risinn; suddenly, damaged the sible. r ./' D goods. Held by the Court, Colcock, J., that the defendant was liable. He ought to have ascertained the state of the ford, before he entered it. If :,ueh a circumstance was permitted to operate as a relief from liability, then carriers of this description would be always exempted. ers CARRlERS.--Commencement of risk. 639 14. Stox^y ox Bailment. 336. 337. By the lerm enemies^ is to be understood, the public enemies of the country in open war; and not thieves, robbers, rioters and insurgents. But pirates at sea, are \Yithin the exception, because they are treated as the common enemy of man. in American bills of lading, the acts of the country's enemies, are not excepted. The pioximate, and not the remote cause is re- garded in questions of this sort. Thus, if a carrier ship is driv- en by a storm on an enemy's coast, and there captured, before she should be stranded, it would seem to be a loss by capture, for that is the proximate cause. But suppose she is first strand- ed on the coast by the gale, and in consequence of it captured, in that case it is a loss, by the perils of the sea, for the gale is the proximate cause, and not the capture ; 2 Bing. 205. (A) Commencement of their risks. 1. Williams V, Peytavin. May T. 1816. 4 Margin's Lou.Rep. p. 304. A quantity of cotton v.as lying at the plantation of Madam Thecsn-i ^ J ./ ri i f.,/>^ liability Rose, who had sold it to the plaintiff. The defendant the hf-Ann iVom carrier, did not send his barge to the landing, nor any written '^'^^'^"y- order for its delivery, but sent a verbal message to send the cot- ton to the bank of the river, which request was not complied with. Held by the Court that the carrier was not liable. That his liability does not begin until the goods are delivered to hira. Af- ter they are received, should they perish on the shore before they are put on board, the carrier is answerable. Miles v. Johnson. May T. 1821. 1 M'Cord's S. Ca. Rep. 137. 439. Held, that boatmen & ferrymen, are liable as common carriers ; Aferryma?- and a ferryman is bound to have his flat suitably constructed ; J_*J^<|^'*_^,^j Per Cur. Under the terms, " King's Enemies," are included tiiosc foreign en- emies of the king, which are sach by open declaration of war, and not domeitic enemies by reason of a temporary insurreclion, or riot, in which cases the county or hundred is responsible ; Proprietors of the Trent Navigation r. Ward, 3 Esp. 131 ; Amies v. Stevens, 1 Stra. 128; Forward v. Piltard, 1 T. Rep. 27. 540 CARRIERS.— Dii^ie^ and UahiliHes of. his liability ^nd it belonffs to him to regulate the mode, in which he will re- DCffins o o ' when the ceive Carriages into his boat ; and after the traveller is ordered dkectedto *° proceed, the possession of the property is constructively proceed. in the carrier, and he becomes liable for any damage that after- wards happens. 3. Packard v. Getman. Feb. T. 6 Cowen's N. Y. Rep. 757. Where by Trover for a box of goods, allejred to have been delivered to custom tX 06 o ' o livery on the defendant, as master of a canal boat, to be carried from A. to a^dellTeV^ C. It appeared that the defendant was informed by the plaintiff, tothecarri that four boxes were to be sent ; and a bill of lading delivered alwavs b^e *° ^^^^ defendant included but four boxes, but in fact five boxes accompani -vserc Sent, and laid on the w^harf where the boat lav, after dark ; ed with no • i i • i • i f i tice. and some one m tne boat said it was defendant's boat, and more goods of the plaintiff's were coming ; and held, that proper in- formation was not given of the delivery of the fifth box. Ad- mitting, therefore, says the court, the custom that a delivery on the dock, is a good delivery to the carrier ; it must always be accompanied with notice ; for until the carrier has knowledge that the goods are on the dock for the purpose of being carried, the carrier has no right to assume any custody of them.* * In all cases, a person delivering goods to bo conveyed by a carrier, is bound to procure them to be booked, or to deliver them to the carrier himself, or some person who could be proved to be Iiis agent for the purposes of receiving them ; per Lord EUenborough, Buckman v. Levi, 3 Campb. 413. Delivering the goods at an inn- yard, from where the carrier sets out. held not sufficlont ; Selway v. Halioway, 1 Ld. Rayrn. 46. Or leaving goods at the wliarf, piled up among other goods; Buck- man V. Levi, 3 Cainpb. 414. And where t!ie goods vvere delivered to a person standing at a warehouse door, in an inn yard, wlio was employed in loading anoth- er waggon at the time, but the deliverer did not know the name of such 'person, it was hold no delivery; 5 Petersdorff's Abr. p. 67. But the delivery of a parcel to the driver of a stage coach is a delivery to the proprietor ; Williams v. Cranston, 2 Stark. 82. And where there has been a delivery, it is not affected by tlic owner of the thing delivered (ravelling in the conveyance, and having an eye upon the goods; if they be lost, the carrier is still liable; Robinson v. Dunniore, 2 B. Si P. 419 ; Clark V. Gray, 4 Esp. 177. But the carrier will not be liable if the owner sends his ser- vant to take charge of tlie goods, and no trust or confidence has been placed in the carrier ; East India Company v. Pullen, 1 Stra. 690, The moment the goods aro delivered, the liability of the carrier commences ; Tiiomas v. Day, 4 Esp. £62. And from that period he has a special property in the goods ; Goodwin v. Richard- eon, Roll. A.br. 5; cited in Arnold v. Jefferson, Ld. Raym. 278. Ld. EUenborough, is reported, Starkic, R. 72, to have held, that where goods, were received by a wharfinger, who was at the same time a lighterman, for the purpose of being shipped from L. to N. ; and it being the duty of the lighterman to convey the goods from the wharf to the ship in his own lighter, his liability waa like that of a common carrier, but in the report of the same case, viz. Maving v- Todd, 4 Camp. 11. 225, no allusion is made to such a dictum. It is sufEcient, there- fore, to say, tliey are but N. P. reports, wliich are not to be relied upon an authority. CARRIERS .—Termination of risk. Ml (B) Termination of carriers' liabilities. 1. AcKLY V. Kellogg. Feb. T. 1828. 8 Cowen's N. Y. Rep. 223. Case against defendant as common carrier. A carrier _ _ from New The plaintiff put certain goods on board the defendant's sloop York lo at New-York, to be carried to Troy, whence the defendant was i„su^,'ct,on)3 to forward the goods north bv a canal boat. Whether any par- if f"'"'^^'a^^r«l ticular boat was named, did not clearly appear, but the Court boat, is not charged the jury, that the only question was, whether the ^l^^ei^'lossoifihe dant had pursued his instructions; and the jury found for de- canal, fendant. And on motion for a new trial, the Court held ; that if the direction to forward was general, the action fails, as the evi- dence shows that the boat, in which they were sent, was safe, and in good condition ; and the defendant exercised ordinary care and diligence, to which alone they were bound in execu- ting these instructions. The rase, say the Court, bears no analogy to the one, (5 T. R. 389.) 2. Ostrander v. Brown. 15 Johns. N. Y. Rep. 39; 2 Johns. Cas. 371. In foreign voyages a delivery on the wharf, according to us- Proof of ,,,>•, .. • 1 .1 -1 nUsaMwiil age, held, to discharge tne carrier, unless the consignee shall not' exempt otherwise request them to be delivered from the ship ; but in re- ''^^ *^^)''% " _ _ ' ' from liabili spect to goods carried coastwise, a delivery upon the wharf has ty in deliv been held, not to discharge the carrier, even in a case of usage, ^J^^^g^ so to deliver goods. Neither will a delivery to a cartman, without the orders of the consignee, discharge the carrier from liability, even though such is the usage. A delivery to the carrier vests t'le goodj in the consignee ; Dawes v. Peck, 8 T. Rep. 830; Dutlon v. Solomonson. 3 B. & P. 582. Nor is tlie rule clianged by the consignor's paying and booking the goods; ibid. Or being responsible for the price of the carriage ; Rex v. Meredilli, 2 Campb. 639. But the consignor may main- lain an action against the carrier for the loss of the goods ; Davis v. Jones, 5 Burr. 2600. So also where there is a privity of contract by a bill of lading, or otherwise, the consignor may sustain an action against the cai-rier ; Joseph v. Knox, 3 Canipb. 321 ; and see Sergeant v. Morris, 3 B. & A. 277 ; Evens v. Marlett, 1 Ld. Raym. 271. As lo the delivery of the goods by tlie carrier in cases where there is no special contract, or any local custom, or usag'! of trade on the subject to govern, th«re is a diversity of opinion, though the better opinion would seem to be, tliattlie carrier is bound to make a persona! delivery to the owner ; 3 Bro. & B. 177 ; 6 Moore, 469 ; 642 CARRIERS. — Duties and liahilities of. 3. Thompson v. Snow. May T. 1826. 4 Greenl. Me. Rep. 265. vcssclV'kt Where a vessel is let to the master on shares, he victual- to the mas ing and manning her, paying a part of the port charges, employ- shares, re ingher at his pleasure, and yielding to the owners, for her hire, serving no j^ certain share of the net earnings: the liability of the general control over " ' ... . her, the owner was held to cease, and the rnaster is in his stead, while the not liable, vessel remains in his control ; and Westofi, J., cites Reynolds v, Tappan, 15 Mass. 370 ; and Taggard v. Loring, 16 ibid. 336 ; and by the same authorities, they are deemed to be co-part- ners. Vide 5 Taunt. 74. In the case of Emery v. Hersey, 4 Greenl. 412, the Court dis- tinguish that case from the present, because here the defendant had the entire management of the vessel. 4. WiNsoR V. CuTTs. April T. 1831. 7 Greenl. 261. So, ifaves Where a fishing vessel was let on shares to the master, who a fisherman "^^^^ to victual and man her, the owner having nothing to do upon shares -^vith the employment of the vessel, nor purchasing the supplies ; having noih it was held, that the owner was not liable to an action oiassump- wfih'sup "^*^ ^^'^ supplies furnished to the master, p!'^,^' f'.'r-. Mellen. C. J. The law considers the master as owner, pro hac lusliabilily .... . ceases. vice, and the liability of the general owner, for that time, ceas- ed ; 16 Mass. Rep. 337 ; 15 ibid. 370 ; 4 Greenl. 264 ; ibid. 407. The action was brought against the defendant C, and another owner jointly, and the Chief Justice said C. was not owner, so as to'be liable to the plaintiff; and whether the other owner was lia- ble, or not, is immaterial in this action. The defendant is sued jointly, but the facts do not prove a joint contract. A non suit must be entered. 5. ' ' ScHiEFFELiN V. Harvey. Aug. T. 6 Johns. Rep. 170. When the .Assumpsit against the defendant as a common carrier, he be- poodsnrc Jng master of a vessel, on board of which the goods were miitancc on shipped. The goods were first shipped at New-York for Lon- 4 Bin^. 476; 2 Kent's C. 469. In any event, they should notify the persons to whom the goods are directed, and at their peril see tliey are not misdelivered ; 5 Barn. & Aid. 58. CARRIERS.— Terinination of risk. 343 don, but without fraud, or fault of the shipper, the goods were j^^J^J^^^^^of prohibited articles , and the consignee and master entered into iiibitedam an agreement, for the return of the same to N. Y., at the risk of ^.j^^^ ,,^13^1 the owners, thev pavinff freisht from London &c. and an endors- ty ^l-^es not ment to that effect made on the bill of lading; it was held, that , he goods the ship owner and master, were liable for the embezzlement of ^^^^^^^[j"^" any part of the p^oods between the time of their shipment at shipper, es , pecisiilv' New-York, and there return there, the goods never having been wherchea landed at L. : thouo;h the custom-house officers were on board, p^"^ '° '^ ' c> turn, al and mio-hf have embezzled them, and not the master, or crew, though ea ^ -.1 ■ ii • 1 11 dorsed on or any person within their knowledge. ^1,^. ij.n ^f Van JYess, J., delivered the opinion of the Court. S'oKLp It is insisted, says he, that after the master was prevented fromi'^''* delivering the goods, by reason of their being prohibited articles, he is no longer to be regarded in the light of a common carrier, but as-a mere bailee, and so liable for negligence only- The just inference from the facts in the case is, that no fraud or fault in shipping such articles, can be imputed to the plaintiff. It was equally unknown to bo-th parties, and when discovered, a new contract was made between the consignee and master, and from that time the goods were in charge of the master, as common carrier, and he became bound, as well as the owner, to de 1 iver them in the same state in which they were shipped. But it is said, that by the endorsement on the bill of lading, it was agreed, " that the goods vrere to be returned to the shipper, at their own risk," and that this amounts to a special accept- ance. Whatever be the meaning of those words, it never could be designed to throw a loss arising from embezzlement, by the crew, or others, upon the shipper. The agreement of the par- ties, to control the operation of law must be clear, and admit of but one construction. 6. Kemp v. Coughtry. May T. 1814. 11 Johns. N. Y. Rep. 107, Where the master of a vessel, employed in the transportation -where the of sToods between Albany and New-York, received a quantity """^ster is o . / I J emnloved of flour to be carried to the latter place and there sold, in the in Uie river usual course of such business, and for the ordinary freight ; and ([n,"^]^us?^ the flour having been sold by the master for cash, it was stolen ness.and out of his trunk in the cabin, while he and the crew were absent, hecome^shis held, that he and the owners were answerable to the shipper for ''"'y '5?^^'* ' . ^ _ _ i t^ as well as the money; although no distinct comm'ission was allowed be- carry, the 544 CARR.IERS. — Duties and liabilities of. money so yond the freight, such being the duty of a master, in the usual wlule. in'his course of his employment, to return the money as well as sell. possession, _ ^ . ' ... . ^ subjects "er Cur. Since the decision m 6 Johns. 160; 10 id. 1. it is him toUie j^q longer a doubt, but that the owners £)f a vessel employed in same liaUili . c j ty, until the the transportation of property are to be deemed common carri- ers. Are the principles of law, in such cases applicable to this case? Before it was converted into money, there could be no doubt. But the character of common carrier does not cease with the sale of the property. The sale of the goods, and re- turn of the proceeds according to usage, belongs to the employ- ment ; and the contract is entire ; and had it been invested in other property to be returned, there could be no doubt but the character of common carrier would have continued. Whether in money or goods, it is the same. The freight of the goods is the compensation for the whole. And the suit may be brought against the owners ; and the master is his agent or servant, and they are responsible for the faithful discharge of the trust. Judgment for plaintiff.* (C) The effect of notices. f 1. Barnes v. Prentiss. June T. 1818. 4 Har. & Johns. Md. Rep. p. 817. The terms Where the owners of stage coaches, which carry goods as well of the no ^^ passenscers, and their bag-ffage, intend to exempt themselves ticemuslbc " . . . . . explicit, or from liability, their notices should be plain and explicit, and not in prevail!'" doubtful or ambiguous terms ; as where it was thus, " all bag- gage over 20lbs. will hereafter' be charged, and be at the risk of the owners," and, " all baggage to be at the risk of the owners," were held, that the carrier was liable upon the ground of the un- certainty of the notice. * It being no part of the duty of the carrier to sell goods, and to account for the proceeds, if he sel!.'^, it is as a factor, and not as carrier. In the absence of evidence of usarje, making the master the agent of the owner in selling, it would seem he would not be liable as carrier; Story on Bailm. 350. t It has been held by a number of decisions in the English courts that a special acceptance of goods limits tlie responsibility of the carrier; Morse v. Slue, 1 Vent. 190; Fishburne V. White, 1 Stra. 145. These limitations of responsibility arise principally under notices, which by repeated adjudications have grown upinto a system, and although their legality was formerly doubted ; Lyon v. Mills, 5 East. 428 ; Laws v. Kermde, Taun. 146 ; Down v. Tremont, 4 Campb. N. P. 41. In the case of Nicliolson v. Willan,5 East. 507, Ld. Ellenborongh observed, that con- sidering the length of time, during which such notices had been in use, and the CARRIER.—EJecUf notice. - 545 2. Barnavell v. Hussey, 1 Const. S. Ca. Rep. 114. Held, that a carrier cannot send the ffoods bv a different con-^°''<^«'sof ,, i . • • 1 , „ "o avail if veyance, as the contract is considered a contract for personal the carrier extent and universality, in wliich the practice of making such special acceptances of goods for carriage, had prevailed in the kingdom, under the observation and sanction of the legislature itself, he could not say '.hat such an agreement or notice U'.-.s contrary to law. As where the defendant gave notice that he would not be an- swerable for goods above the value of £20, unless entered and paid for, according to their value. The plaintiff enterod silk above the value, and did not pay the ad- ditional value of the transportation. The silk was lost, Z,ai. And in GiirntUi v. Wi Im, j B & .\^G\])^rBes[.,J. I cannot sec v/ilh refcrenee to tlis question of t!ie rj.<, onsibility of liie carrier, tliat lliere ia any s.jund d stinction bolwcen nugVusciiCi vn'.d nii.sf^as.iiic •. 1 am of opinion tliat by Iheconiinon law a carrier is answer t'ole for the neirligcnrrc as well as the misfeas- ance of liis servants. A wagoroner observed brandy, packod on boar.l h s waggon, was leaking, lie, ho. vevcr, did not iniinediafe!y unpack his load, bnt when unpack- ed, it was found nearly run out. He defended himself upon a notice ; the court held, that a public notice in no case, can exon.^rat-; a carrier from damage arising from gross negligence ; Beck v. Evans, 16 P'ast. 244. A.r\i the oj'-estion, what is ncglinence, is to be left to the jury ; Batson v. Donovan, 4 B. & A. 21 ; Lowe v. Booth, 3 Price. If tlio loss or damage happen by the insufficiency of the waggon. Vessel, or otiier vehicle of the carrier, his liability will continue, notwithstanding a notice; Lyon v. Mills, 5 East. 428; or vvhoie the driver was inlo.xicated ; Boden- hain v. Bennett, 4 Price, 31. And where the notice of the carrier was, tliat he would not be responsi!>le for.gootls of a greater valut than £5, unless, &c. is not rendered nugatory by the }ac:t that the brio!; kreper might have knovn their value; Levy v. Waterliouse, 1 Price, 280. Per Dallas, C. J., where a carrier gives notice thai he wdl not be liii!>Ie b?yo id a s:i:n Slated, in ilio event of liis owu ttrnis not being complied with, if the party sending gooj>- by that carrier, have notice of the qualified restricti.)n, wliijli he imposes on his own liability, and do notcoir.jjly with the terms prescribed, the carrier, in case of a los.; happ jnin^r, is not liable ; Thoro- good v. Marsh. 1 Gow. N. P. C. 10.3; Alfred V. Home, 3 S ark. N. P. C. 136» Where a notice requiring an additional premium,, according to the value of the ar- ticle, is not coinidied with, the owner, by refusing to pay the increased price, takes upon himself the risk, against which that payment v.-ould secure him, and cannot lo'^k to the owner to sustain il ; ibid. So also the carrier is discharged by fraud and cojiceah-nent of the owner of the ^oods ; Morse v. Slew, 1 Ventr. 190; Kenrig v. Eggleson, Al'eyn. 98; Gibbon v- Paynton, 4 Burr. 2299. "nd the niaxiin ex dolo malo actio iion oritur has been adopted by the court ; Ptafson v. Donovan, 4 B. Sc A. 21. The action in this case wa.s brought to recover compon alion for l!io !o.-s of a box containing jG407'2, which had been lost out of a stage coach. Tlie defendants had given notice limiting their rcspG-isibdity ; nothing was said .it M.e lime of booking tlie box, that it contained money. jQliholt, C. J. -.md Bayhy iiud Holroi/d, Js. ob.D o X o baggage i^ It was also ruled by tlie C.Turl, that t' e responsibility of tl e "t, the risk proprietors, is the same, w^hether the driver is iniorinea that aers,»i.sap package contains mone}-, or papers as valuable as money. ^'^o^/h '^'^ Held also by the Court, in the same case, that it was no vio-'j''^gS'»?c of •' ... pn.'seneers. Jation of the law of the U. S. 11 Cong. c. o4, for a mail carrier [i is po"i ne to take bank notes in a sealed envelope, and deliver them ^ccor- j;^j;^^^[y,^J ding to the direction ; and a letter accompaning such parcel, iscRnierwhat II I 1 X iL*" iU a packac-e presumed to relate to the parcel, so as to come withm the ex- con:ains. it ception of the statute. . being no vi law for a 4. U'aii carrier lo carry The Charleston and Columbia steam-boat v. Basok. '^^^^-^ -°-^*' Jan. T. 1824. 1 Harper's S. Ca. Rep. 262. While going on an inland passage to Charleston, the boat wiiarc :.r. grounded from a reflex of the tide, and fell over, "^^'^^^ i^'^ cars u)'»°*^ terms, and lli;it l!;cy were lo consider tiieni as Piicli. I'pon the ground that tlio de- fendants (luoiil lo have l.reii apprised of the value of ijjo !>ox, and were not ; that thcplaintifFa were ;iuiily r)f iniscotiducl in this n'tiijccl ; tliat the |;iniii'.ilF\'i neglect deprived the (hjfendanis of the toiii|iens3tion liiey oviiihl lo luivf: r«'ccived, and pre- vented the defendaiils froM taking the care, wiiich li»^y olhcrvi-^c would havo done ; and llsal I'le value of I'-ie ;irlicle increased the probability of the loss ; we are of opinion, seeing then; is no nisfs usance on the [lart of tlie defendant.*, that tl:^ . plaintiff's neglect is, under the circiiinslanccs of this case, a bar to the ac;li"n,and that the direction of the judge, before « ho.n the cause was tried, cannot he impugn- ed ; Bignoid V. Waterhouse, 1 M. & S. 255; Harris v. Packwood, 3 Taun. 2G4 ; Slealt v. Fliigg.5 B. & A. 342. C. J. Be.ll, in Riley v. Morno, o Bing. R. 217. 220. 221, remarks upon the reason ableness of t:oliees as follows, " as the law niakrs the carrier an insurer, ynd as the goods he carries may be injured or destroyed by many accidents,- again&t which no care on the part of tlie carrier can protect tiiem, ho is as much cnlilied to be paid a premium for bis insurance of tin ir delivery at the phice of t!i( ir c'.stmiition, as for the labour :ind expense of carrying them iliere. Indeed, beNidns the risk he runs, his attention becomes more anxious, arm liis jourtuy is more expensive, in proportion to the value of his load. I'c must l:ike what is offered lo him lo carry to the p!ac.*, to wiiicl: he undcrUk-Js to convey goodr^, if he lus roim in his car- riaie. The less of a sing-p parkago migiit '.uin him. Parcels cf immense, value, are comprissL-d inlo a small co:ppass, and conUnually sent br cf.nmon carriers. As the law compels carriers t.; undor'.ake J'or liic security of wiiat they carry, it would he most unjust, if it did not afford ihem l!ie means of ascerlaitrmg tiic ex- tent of their risk. Olhi:r insurers always have tlie amount of what they insure Bjjccifisd in the policy of insurance." 548 CARRIERS.— Du/ie5 and liahillties of. boat, even bilffe water run into the cabin, and injured a box of books, be- though una , ° . . .1 . • 1 1 • j-rr voidable, longiug to the onginal plamtiti. TnusTuse^"^ Richardso7i, J., in delivering the opinion of the Court, re- properdili marked, that admittino- the grounding to have been accidental gence in res , . . ^ , cuing the and unavoidable, and the carrier in no fault, yet, the moment darna4?™ ^^® ^°^^ heeled, the bilge water was returned towards the stern ; and this the carrier was bound to know, and remove the cargo there stowed. The books in question, being in the cabin, could easily have been removed. The carrier is liable for bad stowage, and default of good keeping ; Cro. James, 330 ; 1 Ba- con, 344. The injury, therefore, was through negligence, and does not come within the exception in the bill of lading, even where high winds assail a vessel, and she perishes ; but from un- soundness, or want of skill, the carrier is liable. The carrier in this case is in the situation of a boat unavoida- bly injured ; but the damage to the cargo still avoidable by diligence and activity. He could have saved the books in the cabin from the bilge water, by human foresight and due dili- gence. The carrier is liable as well for bad stowage, as for bad keeping. The injury was the consequence of negligence, and not of the unavoidable grounding. (D) Special coi,tracts. 1. Story on Bailment. 450, 452. Formerly it was a question how far carriers could limit and qualify their acceptances, but it is settled at this day that they may; but they cannot by any special agreement entirely ex- In all cases of notice?, the burthen of [TOof of negligence is en the part}', who sends the goods, and not on the carrier to prove due diligence; Avhich is contrary to the rule in cas's wher« there is no notice ; Marsh v. Home, 5 B. Sc. C. S22, 327 ; Riley v. Home, 5 Bing. 217. 226. Not!ce does not exempt the carrisr, in a case arising from the malfeasance, mis. feasance, or gross negligence of himself, or his pervants. As where the goods are converted, or delivered wrong ; and gross negligence, either in llie transportation or care of the goods, in all such cases the carrier must abide the loss ; 8 Taunt 144 ; 4 Price. And in a late case, 13 Price R. 329, it would seem to bo considered neces- sary to prove gross negligence, in order to make tiie carrier liable for a loss, where piopsr notice has been given. The question, however, is undecided in England, end Mr. .Tustiee Story thinks it deserving of strious consideration, whether a car- rier should not be liuhle for ordinary, as well as for gross negligence; Story on Bailm. 365. CARRIERS.— 5[^9eda^ contract. 649 erupt themselves from all responsibility, in cases of gross negli- gence and fraud; or insist upon unjust or exorbitant prices. Where the carriage is by water, it is usual, to specify in the bill of lading the risks from which he is exempted. The old form of the bill of lading, is, "the dangers of the seas only ex- cepted ;" and this is the form generally used in this country. Of late, the form is changed in England, thus: "The act of God, of the King's enemies, fire, and all and every other dan- gers and accidents of the seas, rivers, and navigation of what- ever nature, and kind soever, save risk of bats, as far as ships are liable thereto, excepted." Williams v. Branson. July T. 1810. 1 Murphy's N. Ca. Rep- 417. Case against defendant as common carrier. r^j^^ ^^^^ It appeared he took on board his boat a hogshead of sugar, ing of the ^^ -n 1 wnrds in a to be carried from Wilmington to Fayettevule, and gave a re- bill of lad ceipt, in which he promised to deliver, "the dangers of the riv- |j"^^^'^^_^^^^ er only excepted." There was a considerable freshet in the the river on river, and the hogshead was placed behind the hatches, there g^t.^'^^P being no other place for it. In passing a bend of the river, a Cypress tree came in contact wi^ it, and forced it overboard, by which accident it was lost. Held by the Court, Taylor^ /., that freighters for hire, upon ^ navigable rivers, are to be considered as common carriers; that the words in the receipt, "the dangers of the river only excep- ted," mean the natural accidents incident to a river navigation, and do not extend to those that might be avoided, by the exer- cise of that discretion which is expected from persoris in such employment. 3. GoRDiK, ET AL. V. LiTTLE. Sept. T. 18-22. 8 Sergt. & Rawle's Rep. 533t Evidence of usage, or custom, fixing the construction of the Evidenceof words, "inevitable dangers of the river," in a bill of lading for show the the transportation of goods by inland navigation, is admissible. ™JJ^^1^°^ So may an usag:e, or custom, varying the liability of common bill of lad ■ X. . r .v . rn 1 il A ingisadmis carriers by water, irom that of the common law, be proved. sibie; soa It appeared that the goods were put'on board, a keel boat, ^^^^^"^^^1^ and the next day she sunk, while laying at the landing, in con-a'^i''>y °f sequence of striking against a log concealed in the water. 550 CARRIERS.— iJ^VA;^ of. Tilghmau, C. J. "With regard tocarrier>by water, the law in this country i? not settled. A case is said to have been deci- ded, that carriers on the river S. were liable as common carri- ers. But we have no report of it The point came before the Court, (2 Binn 72,) but it was not decided. The navigation of the Western waters, is a new tiling ; and did not exist when our independence was declared. It was remarked in Carson V. Blazer, 2 Binn. 475, that our rivers were so di.flretent from those of England, that the same laws in regard to the fisheries, were not applicable. Whether the law of carriers has been adopted, in its full extent, is worthy of investigation. Unless a custom, or usage, is most clearly established to the contrary, I should think the carrier liable for every accident, which care and skill could have prevented. III. RIGHTS OF CARRIERS. 1. Barker v. Haven. 17 Johns. N. Y. Rep. 134; 2 Marsh. Ky. Rep. 345 ; 2 K. Com. 497- The cnrricr The Carrier may refuse to receive the goods, until payment of tohisfreielii^he Ireight IS made, but, it he does receive them, the hire not inaclvance; jjgjpg paid, as is commonly the case, he may afterwards sue for, lien .ilso on and recover it in an action. the goods in _, , , . , • i i i • possession; So long also as he retains the possession, he has a lien on havcTit^a' the goods for the hire, but when he delivers possession to the lion against consignee, or his assigns, he waives it; 8 Taunt. 393. boili con ... signo.and In such casc he must look to the shipper for his hire, or accor^'i'ne fi^^ight, unless the consignee agrees, either expressly, or by im- locircum plication to pay ; as where the bill of lading directs the carrier to deliver the goods upon payment of freight ; by acceptance in such case, he becomes responsible, even although the consignor may also be liable. 2. Bradhurstv. Colum. Ins. Co. Jan. T. 1812. 9 Johns. N. Y. Rep. 17. When the ,_., ,..,,. carrier vcs When the vessel IS disabled in the course of the voyage, and bkcf ill's the cargo remains, the captain is authorised to forward it by the diu)? of another vessel, and thereby earn freight. The master in the to procure V^^^ of necessity must act for the benefit of all interested. His another and (J uty however, in regard to forwarding goods is only imperative, CARRIERS— Of passengers. 551 when anothei' vessel can be had In the same, or contiguous port. ' 3. Hartshorne, et al. v. Johnson, et ai>. Sept. T. 1823. Su- preme Court, New Jersey. 1 Conn. Rop. 1S6 ; 2 K. C. 497, 498. Vide 8 Taunt. 293. The Court, held, that a common carrier had a lien on goods (jari-ici's in his possession, for the transportation of those coods, but i'^"'*'^"" . , , . , } . " fiiii'tl to (he not for other goods earned, which had been delivered. And goods in his that this lien was not affected by the process of attachment, l'"*^"^'*'"- against the owner of the goods, in the possession of the carrier. But the carrier may waive his lein, by giving up the possession • and when once waived, it cannot be resumed, &c. IV. CARRIERS OF PASSENGERS. (A) By land, duties of, &c. Barker v. Havens. 17 Johns. N. Y. Rep. 234. Passenger carriers, not being insurers, when the ])roper skill .jg^Q,.^j^,.g and dili good evidence of a con- version ; Anon. 2 ?alk. 655. S. P. Dawell v. Moxon, I Taun. 391; Coardman v. Sill, I Cainpb. 410. Note. Where the carrier, however, refused to deliver goods until his charges were paid ; Gicon v. Dunn, 3 Campb. 215 ; Solomon v. Dawes, 1 Esp. 83. Or that the party applying for the goods had a right to receive them ; ibid. * The cnrrler also will be excused for a non-delivery when the shipper properly ex- orcises the right to stop llic goods i.i transit. The properiy of the buyer is vested upon the delivery to the carrier, subject to the riglit of dcvestmerit in transitu ; and it is said t'l iixist only in cases of a sale on credit, insolvency of consignee, where the goods are still in transit ; and wiieru the buyer lias not transferred his right bona fide ; all of which must concur ; Abbott on S. p. 3. c. 9. seas.' 560 CARRIERS.— Remedies against. "inevitable dangers of the river," in a bill of lading, is admissi- ble ; Carson v. Blazer, 2 Binney, 475.* Burden of proof is on the carrier. 3. Murphy v. Staton. 3 Mumf. Va. Rep. 239. S. P. Belt. v. Read. 4 Binney's Penn. Rep. 127; 7 Cowen, note ; 8 Johns. Rep. 213; Smith v. Wright. 1 Caine's Rep. 43 ; 2 Kent's C. 468 ; Story on Bailm. 367. The burden of proof is upon the carrier to bring his case within the exceptions, or, otherwise, he is responsible for the loss. The law imposes the obligation of safety upon the carri- er, and, although he has been guilty of no negligence, yet, he is liable unless in his defence he can show he is exempt from lia- bility.f He may show the loss to have been the act of God, or the common enemy of the country, or from perils against which he did not insure. * The plaintiff must prove ihc engngcnient nf tlie defendant to c.-irry Iiim, by the fact of linving taken his se.'it, paid the fare, &c. ; tliat ihc carrier has neglected or refused to carry Iiiui, and which may he proved by glaring acts of improper conduct, or by .such acts as amount lo ;?r«ma/acie evidence of misfeasance ; 5 P.tersdoiff 's Abr. 1^.0. In suits institu:ed against common carriers of goods, the evidence in gen- eral adduced is, proof of tlic^tonlract, express or implied: a delivery of the goods and the defendanl'.s breach of proini.se. VVIiero iiie conlract is implied, tlin plaint fF may recover upon it, but uhere there is an express contract to convey the goods safe- ly and securely, then the onus of proving ihe specific contraci is thrown upon the plainlifT. Tlie rig'it of properly in the goods need not be shown by the plainiilf, llio possession '■( them when delivered by ihe c.irrier being sufficient ; Dutton v. Solo- mons, :iB. &P. 5S2; Dawes V. Peck, ST. R. M3(); Vale v. Bayle, Cwp. 294. But the plaintiff ought to prove v\hat ihe goods consisted of, and ihe value of llirm, to enable the jury to assess the damages. It is recommended, 5 Peteredoiff's Abr. ISi, that the plainiiff, by no means, ought to pack llie goods himself, but leave ihat to a servant or agent, who cm speak to these oircumstances, if called upon, as tho owner cannot be a witness in his own case ; as it happens in nine<;ase5 out of ten, that when property is lost or damaged in the hands of a carrier, the owner loses his remedy for want of the neccss.iry evidence, which may always be obviated by ob- serving this caution. After establishing the conlract and receipt of the goods, the only other proof necessary is the non delivery of the goods by the carrier ; Dale v. Hall, 1 Wds. 28J. A carrier's receipt fur goods, is evidence of the contract enter- ed into by him, and the owner of the property ; Samuel v. Darch, 2 Siaikie, N. P. C. 60. 1 In cases of notice, however, the rule is difT^;rcnt, the burihcn in such case is on the party s"nding the goods, and not of due diligence on the carrier; 5 15. & Cres; 322. 327; 5 Bing. R. 217. 226. Where the carrier attempts to shield himself by a public notice, it is a general rule that he must prove the plaintilT had a knowledge of the defendant's circum- C ARRIERS. —-^Igainst third persons. 561 (C) Or THE DAMAGES. 1. Watkinson v. Laughton. Aug. T. 8 Johns. N. Y. Rep. 213. Assumpsit on a bill of lading, signed by llie defendant as mas-T|\'^ /l^"""" ter of a ship from Liverpool to N. Y. ;• and the goods were lost, wheregoods or embezzled, without the fraud, or fault of the master. zled'^'forThe The Court held, that the master must be resijonsible for the ^'''^'"®f j^^® ' _ _ _ * pert of da value of the goods missing, according to the clear net value ofliveiy. the goods, of like kind and quality, at the port of delivery, with- out the addition of interest. (D) Against third persons to whom the carrier deliv- ers GOODS. 1. ■ Mason V. Waite. March T. 1822. 17 Mass. Rep. 560. "Where A. delivered bank notes put up in a parcel to a car- ^f^*^®*^"" ner, who paid them to B., for a loss at a Faro table, held that way bank A. might maintain an action for money had and received against J^,j*^^^"pP^^ B., for the amount with the interest. money had 3.nd rccciv Parker., C. J., says, "The bills which are identified as belong- ^^ will lie. ing to the plaintiff, came into the defendant's hands unlawfully; for gaming, by our statute, is unlawful. The defendant could have gained no property in them, even as against the carrier. He has no more right to retain them, than he would a horse or cow, or any other chattel, acquired in the same way. In such a case trover would have been the proper action ; and perhaps would in the present case, but for the difficulty of identifying bank notes. An action for money had and received, will also lie; for as to want of privity, the law seems to be, that where one has received the money of another, and has not a right consci- entiously to retain it, the law implies a promise that he will pay it over. stances. And upon proof of the delivery of goods lo the carrier, the law rcquiree that he should shew that he has pGrformed his duty by a fulfilnie.it of engagcmeut to carry the goods; Dale v. Hall, 1 WLU. 281. The burden of proof lies upon the carrier. The notice restricting tixe carrier's liability must be brought horae to th© knowledge of the plaintiff. It is not sufficient that the carrier used means to give notice ; and whether the notice be sufficient in point of law to protect the carrier^ is a legal question for the consideration of tiie court. In the case of Cobden v. Bolton, 2 Campb. N. P. C. 108, the court permitt'^d a copy of a board (which had been affixed in a wall, on which was written a notice that the carrier would not bo answerable for plate or jewels, unless entered and paid for) to be given in evidence. Vol. II. 71 562 CARRIERS. -—Criminaliter. LtcKY V. M'Derjiott. Sept. T, 1822. 8 Sergt. & Rawle's Penn Rep. 500. S. P. HosAcx v. Weaver. 1 Yates, 478; Hardy v.Metzgar. 2 Yates, 347 ; Eastok v. Worth- INGTON. 5 S. &R. 13 0. Held by the Court, TUghman., C. J., that where a waggoner, sell. to whom goods had been delivered to be carried from Hunting- ton to Pittsburgh, and on arriving there sold the goods in the street of that city, the sale vested no property in the purchaser. He who delivers goods to a common carrier, gives him a bare authority to carry, but no interest, and the general property draws to it the possession. Vide Cook v. Darbyy 4 Mumf, 44^4. A carrier may not mcnt. 3. KiTCHELL V. Vanadear. May T. 1825. Blatchfoid's Ind» Rep. No act of Where carriers of a quantity of salt by water, on their way The earner pyj-f^i^p^jej ^ boat, leaving with the seller a portion of the salt, ilie general but telling him at the same time thev were carriers; the Court ov.-ncrn! his , i ... '" -, • 1 . /• Z" • ^ .1 i propel ty in heiv^, that it gave no rignt 01 property against the general own- ihc bail gp jTqj. the reason, that no unauthorised act of the bailee, can di- vest the bailor of his general property ; 1 Wils. 8 ; 1 Johns. Rep. 471. 4. M'Neil t. Coleman. July T. 1820. 8 Martin's Lou. Rep. p. 373. The Court, .Martin, J., left it undecided, whether a sale by a common carrier, vests the property in the goods in the buy er. VI. LIABILITIES CRIMIJV^LITER. 1. CoMM-ONWEALTH V. BALDWIN. 8 Mass. Rcp. 518. Tant 0^1116 ^^ " servant, employed by a common carrier to drive a team carnal to a certain place, drive to any other place than that to which lyco.ivert he WAS engaged io drive^ and fiautlulently take the whole load, tv*i^'is^elo ^"^ convert it to his own use, it will be felony. ny. CARRIERS. — Criminaliter. 563 2. Commonwealth v. Brown. Nov. T. 1808. 4 Mass. Rep. 580. The defendant was indicted for larceny, in stealing two pieces of cloth, alledged to be the property of one W. The facts were these : Mrs. B. was the owner, who deliver- ed them to W., a common carrier, to be carried from Boston to S. W., the carrier, being disabled on the way by a hurt, "-m- ployed the defendant to drive his team to S., which he did ; but the package containing this cloth, was taken entirely by the de- fendant ; and held to be felonious. Persons^ C. J., says, the defendant, it is contended, was a carrier, having the lawful possession of the goods until the load was delivered at S., and that Tf he took the goods on the rout, it was an unlawful conversion, and not a felony, because he did not open the package and take part of the goods, but took the whole package. Admitting him to have been a common carrier, yet all the goods in the waggon were delivered to him as one mass, or body; and his taking away one of the packages, was a separ?t- ting a part from the whole, and thus was determined the supposed privity or contract; for the contract was to carry the load to S., and not the several packgaes. But he was not a common carrier, but a mere servant to W. ■ the carrier ; and had no special property in the load, which would be mischievous in the extreme. In New York, in addition to the common law liabilities, civil- tier, servants who embezzle money, by virtue of their employ- ment as servatits, 'are by statute, punishable as for |^felonious stealing. 3. The People v. Sherman. May T. 1833. 10 Wend. N. Y. 299. This prosecution was against the defendant, as stage driver, ^gf,^^*gj"^' who was intrusted by his employers with money to carrv v<-int wiihin /->. Ill i. 1 ^ ^^ mean from one place to another ; and the Court held, that he was aingc.fihe servant within the meaning of the act, making embezzlement g^'^^gj^*' of property punishable as felonious stealing* ment. Sutherland, J. The application of the act is not to be restrict- ed to clerks, or servants, whose principal or ordinary employ- ment is the receiving and taking care of the monies of their employers. 564 CARTEL. 1. Crawford v. The William Penn. April T. 1815 C. C. U. S. N. Jersey. A cartel pro hac vice Pg^ Cur. Can a contract made with an alien enemy by the licenced ownGr'^r master of a cartel vessel, in relation to the navigation vessel and ^^ x\\-dX vessel, upon the service in which she is engaged, be en- all con uacts _ ^ ^ _ _ ° ° . ., made for forced in a court proceeding according to the rules of the civil her'areTo ^^^^"-t ^nd having jurisdiction of the matter ? What is the char- be enforced acter of a cartel vessel, and of the persons concerned in her in the tnbu . . n n i • i i nal having navigation? 1 he flag of truce which she carries, throws over of'u''^^"°" her and (hem the mantle of peace. She is pro hac vice a neutral , licensed vessel ; and all persons concerned in her navigation, upon theparticular service in v/hich both belligerents have employ ed her, are neutral, in respect to both, and under the protection of both. She cannot carry on commerce under the protection of her flag because this was not the business for which she was employed, and for which the immunities of that flag were gran- ted to her. vShe is engaged in a special service, to carry prison ers from one place to another, and whilst so engaged she is under the protection of both belligerents, in relation to every act necessarily connected with that service. It follows that all contracts made for equipping and fitting her for this ser- vice, are to be considered as contracts, made between friends, and consequently ought to be enforced in the tribunals of either belligerent having jurisdiction of the subject. The agree- ment of the tvv'o nations by their agent, to make a cartel, amounts to a license by both, to perform the service in which she is employed, and sanctifies the means necessary to that end. ■•'' Carte! ships e!ni:l.jyeJ iu'exclianging prisoners takon in uar, are cxnmpt from capture, and are prolected in the execution of the business of carrying prisoners and rofurninfj iroin that s^^rvioe ; Tli« DaifFe, 3 Robinson, 139 ; La Olaire, 5 Hob- jnson, 192. Cartel siiips arc subject to a double obligation to both countries, not to trade. It is not a question of gain, but one on which depends the recovery of the liberty of individuals, who may happen to become prisoners of war. To engage in trade, u:ay become disadvaiifajjeous to the enemy, or to their own ccuntry ; both countries aro rnutualiy enirarcd io permit no trade to be carried on, under a fraudulent use of this inlercodrse ; all trade must, therefore, be held to Ibc | rohibited, and it is not without the consent of both governments, thatjvesscls eng-aged on that service can be permilled to take in any goods v.-hatcvcr, Tiic penallj' of conf.ycalion is afii.x- cd to the abuse of ihe privilege'^of a cartel ship, and v.hcthf r the vessel belongs to the belligerent slate, or to the eiieniy, it is liable to capture and condemnation ," TIio Venus, A Ilobin^on, 35.3; The jC-rolina, 6^ Robinson, D.i6j Whoaton on Cap. 59. CASE, ACTION 0}^ .—When it lies 565 Qtmt, ^tttOM on.* And see tit. .Action, vol. 1. p. 180. to 192. (A) When it lies roa injuries to real proper- ty, p. 565. (B) When it lies for injuries to personal prop- erty, p. 569 (C) When it lies for injuries to the person, p. 573. (D) When it lies for injuries to the person relatively, p. 578. • (E) Declaration in, p. 583. (F) Evidence in, p. 584. (G) Damages in, p. 587. (A) When it lies for injuries to real property^ 1. King v. Tarlton, et al. May T. 1790. 2 Maryland Rep. p. 473. This was a special action on the case, noainst the defendants Case lies - . 1 1 n • .1 i-i-rr^i I 1*. for an inju for erecting a dam, and overflowing the plaintm s land. It was ,.y Poland, * An action on tlie case msiy be denflcd to be — an action where a partj' sues for damages for any v.rong, or cau^e of co:np!aint, to wliicli covenant or trespass will not apply; Stephens on PI. p. 15. In tiic popular sense of the term, " action on the case," is understood to be an action in form ex deliclo. They are founded on the common law, and tlin statute of Westminster, 2, 13 Ed. I.e. 24, or some statutory provision, and lies genorally to recover damages for consequential wrongs, or torts to persons individually, or persons relatively, or to personal property in reversion or real property, corporeal or incorporeal, or some right or privilege, incident there- to; 5 PetersdorfF's .Abr. 192. Tfacy arise either from niaZ/ecfsance, or doing an act which the defendant ought not to do; or misfeasance, being the improper perform- ance of some acts, which might legally be done ; or noTi/ea^ance, or tlie omission, of some act lie ought to do ; and these several injuries are the commonly doing, or omitting soire act contrary to the general obligation of th \ done to the for injuries, sustained in consequence of the deiendant s horse cSw^ injurincr che plainliiT^, and the court held, that the action was the horse of misconceived, it oup-ht to have been case. the defen ° dant. VROOivrAN Y. Lawyer. Aug. T. 1816. 13 Johns. N. Y. Rep. p. 837. But the de jj^ ei-ror. fenpantis not liable Lawyer, the plaintiff l>clow brought an action against Vroo- knlTihat man, the defendant below, and proved that the bull of Vroo- the anittiEa j^an's fTored his horse, but there was no evidence that the was accus " tomed to do bull had ever before been unruly. Judgment tor Lawyer the mischief. 1 • i*rp 1 i plamtm below. The Court in reversing the judgment, said, that the owner of a domestic animal is not liable to an action on the ground o£ negligence, unless that, he knew the animal was accustomed to do mischief. 4. RuiT V. Law, et al. Nov. T. 1809. 6 Mass. Rep. 9&. An action Per Cwr. If cattle escape from the owner's close into an- I'^gjj^j^^g^' other close, through a defect of the fence of an intermediate a person close, which the tenant is bound to keep in repair, and the cat- who liGGDS his fences . tie be distrained, damage feasant, the owner may have his reme- pai\- where ^^ against the tenant of the intermediate close,by an action on by the the casc. plaintiff's cattle cscap „ edannwere *-*• distrained. Wheelock V. Wheelwright. March T. 1809. 5 Mass. Rep. p. 104. Case will This was an action in case. It appeared that the defendant gainst a per ^ii^'^fl a horse and sleigh from the plaintiff to ride a certain nura- son who ijgj. Qf miles, and drove so carelessly and immoderately, that having hir _' _ •' •' ' cd a horsp- the horse died, and the sleigh was broken, and injures him „ /-^xiiii • • •!• by immod Farsons, C. J. ruled, that the action was misconceived, it erate driv ghouid have been trover and not case, iiig. CASE, ACTION 01^.— When it lies, 571 6. Hawkins V. The Dutchess and Orange steam boat Co. May T. 1829. 2 Wend. N. Y. Rep. 452. S. P. Case, ET AL. V. jMark. 2 Hammond's Rep. 196; and Ohio Cond. Rep. 305. P 67- Cur. Savage, C J. An action on the case, will lie ^ *j^^g"|^, against the owner of a vessel navigating a river, haAnng it in^wnerofa , ? ^ . , „. . . ,^ '^, '. ,^ „ vessel for* nis power to avoid a collision with anotner vessel, and retus-nesjli;^cr.t ing, or neglecting to exercise the power he possesses, v/hereby ^'''''-•*'" lie injures the plaintiff's vessel. the plain tlfiT's V63S61 Vide DenisG7i V. Seymo7-e,9 Wend. Rep. 9. is injured* 7. Snell, et al. v. Rich. May T. 1806. 1 Johns. N. Y. Rep. 305. This was tin action on the cast, against the defendant, a master But a capj of a vessel, for negligently running down the plaintiff's vessel, jigy^f^^ij, whereby she was much iniured. Junes sus •' •' tamed by a It appeared that when the accident happened, the defendant's vessel, a vessel was under the controul of a pilot, and that the master was ^hich hi» on shore. vessel ran foul or, he Per Cur. As the master was not on board, he certainly was '-"=1"^ «" 1- sliore at the not master at the tinie of the accident, and therefore he is not time, and liable as master. '^^:^^ csntroul of g_ a pilot. Barney v. Dewey. May T. 181G. 13 Johns. N. Y. Rep. 225. Per Cur. An action on the case lies for falsey afHrming that g.unstapcr a chattel belonged to the defendant, whereby the plaintiff was f '" ^"' ^^'^^ induced to buy it, and was afterwards evicted by the rightful a chattel be longs to him owner. aelf^ by which the q plaintiff is injured. Skidmore v. Smith. Aug. T. 1818. 13 Johns. N. Y. Rep. 322. An action on the case, lies for harbouring the servant orOrforhar ' bounng a slave of the plaintiff. servanlor slave. 10. M'GowAN V. Chapen. July T. ISII. 2 Murphy's N. Ca. Rep. 6L . , . , • . . 1 I r 1 4. So for iniu This was a special action on the case, against the defendant ,.y ^ ^ for injuring the plaintiff; and afier verdict for the plaintiff, the slave, question was submitted to the Court, whether case was the prop- er action, and they ruled in the affirmative. 672 CASE, ACTION ON.— TfVmj it lies. 11. Van j>RUNT, ET AL. y. ScHENCK. Aug. T. 1816. 13 Johns. N. . Y. Rep. 413 ;S. C. 11 Johns. Rep. 417 ; (377.) againsta This was an action of trespass, against the defendant, who c"r*who an ^^^^ ^ custom-house officer. It appeared that he had seized a propriiites vessel for a violation of the United States laws, and while un- seiznreto der Seizure, he employed her in transporting goods for his own hisownpri pj-jy^te purpose. The plaintiffs became nonsuited, and on motion to set it aside, Thompson^ C. J., said, a special action on the case, for the actual damage sustained by the use of the schoon- er, would lie, and would be the fit and appropriate remedy. Motion denied. 12. JcLiFF V. Jenner, N. Y. Oct. T. 1812. 9 Johns. N. Y. Rep. 380; 381. And he is Trespass on the case, against the defendant, for injury sus- caseffor tained by timber of the plaintifTs, while under seizure by the good's dam jefendant. aged while underseiz Per Cur. If an officer, having authority to attach the goods of a person, keep them in an unsafe place, or expose them to destruction, he is liable for the damage sustained. 13. Tompkins v. Sands. Jan. T. 1832. 8 Wend. N. Y. Rep. 468. S. P. KiDziE T. Sackrider. 14 Johns. Rep. 195 ; But- ler V. Kent. 19 Johns. Rep. 223. And lies This wasa special action on the case, against the defendant. ministeHal a justice of the peace, w^ho refused to accept an appeal bond in ofRcerfov a suit in which one E. had obtained a judgment against the anceor mis plaintiff. It was contended, that an action would not lie ; but feasance, ^^y^ Court, Savage, C. J., held, that a party hasr-edress in an ac- tion on the case, for an injury arising from the misfeasance, or nonfeasance of a ministerial officer. 14. M'MiLLAN V. Eastman. May T. 1808. 4 Mass, Rep. 378. S. P. Fuller v. Holden. 4 Mass. Rep. 499; Henry v. Edson. 2 Vt. Rep. 499; Rodgers v. Brewster. 5 Johns. N. Y. Rep. 125 : Ackley v. Chester. 5 Day's Conn. Rep. 221 ; Barett v. Grozier. 15 Johns Rep. 250. The propti- . remedy .1 1 his was an action of the case, o\\ assumpsit^ against the de- CASE, ACTION 0}^.—When 'it lies. 573 fendant, a collector of lax, for a misfeasance in office, and Par-g'^!"?*^^^ 7 /^r-iT- •• /»ii-i -11 public offi ker, C. J., in delivering the opinion of the Court, said, that cer for mis the remedy against a public officer for neglect, or misbehaviour, (^^^^^'j^'^^^^'j^*' in executing his office, is generally by an action of the case, al- on the case, ledging his misdemeanor, or sometimes by an action of debt, but not by an action of assumpsit. 15. Smith v. Elder. Feb. T. 1808. 3 Johns. N. Y. Rep. 105. 106. This was a special action on the case, against the defendant -'^"'^.''*®^°'" 1 ■ - . , putting con for putting onboard of an American vessel, owned by the traband plaintiff, bound from New York to Scotland, contraband goods, ^°°^^°"j^^ whereby the vessel was seized in Greenock, and the master Ameriean compelled to pay a large sum of money to procure hier release. It was contended that the action would not lie, but Van J^ess^ J. held that the action was maintainable. 16. Yates v. Joyce. May T. 1814, 11 Johns. N. Y. Rep. 149. 136. The Court in this case held, that where a person fraudulently -^"'^/or re r 1 r • • 1 moving pro removes property for the purpose of defeating a judgment or ex-perty to ecution, an action on the case will lie against him. ^T!^!!!"* ' c cution. (C) When it lies for injuries to the person. 1. M'Allister v. Hammond. Aug. T. 1828. 6 Cowen's N. Y. Rep. 342. In this case Savage, C. J. held, that where a defendant care- a^^o"?/ lessly drives his horse and gig, as to run against a person in thejuredby street, whereby an injury was sustained by such person, case is driving the proper action.* against * But if the injury had been immediate, as by driving wilfully against another, or inciting a dog to bite another, &c. the action should be trespass ; Moreton v. Har- dern, 6 Dowl & Ryl. 275. The true distinction is, whether the injury is direct or consequential. As for keeping a mischievous animal, knowing its viciousness, throwing a log in a street full of people, an arrest upon irregular process, mali- ciously suing out a commission of bankruptcy; in these cases trespass is the proper remedy; Wille's Rep. 71 to 75 ; 1 Chitty's PI. 152. 574 CASE, ACTION ON.— TF/^en it lies. 2. Cross v. Guti5ery. Feb. T. 1794. 2 Root's Conn. Rep. 90. a husband^ ^cr Ctir. An action on the case for damages lies in favour of against a the husband against a surgeon for an unskilful operation upon surgeon for ■,• t .-lii- it pi • operating ^is wite, notwihstanciing she dies of the operation. on iS'S. So in t^e case of Genay v. Norris 1 Bay's Rep. 6. the defen- dant, a doctor, was held liable to vindictive damages for put- ting cantharides in a glass of wine which the plaintiff drank. 3. Adams v. Hemmenway. Oct. T. 1804. 1 Mass, Rep. 145. S, P. Barnes v. Hurd. 1 American Com. Law. 184; Tay- lor V. Rainbow. 2 Hen. & Mumf. Va. Rep. 423 ; Cot- ter, ET AL. V. Cummins, et al. 6 Sergt. & Rawle's Pa. Rep. 343 ; Byrd v. Cocke. 1 Wash. U. S. Rep. 297 ; (232;) Case, ET AL. v. Mark. Ohio Cond. Rep. 305; Cole v. Fisher. 11 Mass. Rep. 137; Starr, et al. v. Jackson. 11 Mass. Rep. 525; Le Gaux v. Feasor. 1 Yates' Rep. 586. Case is the „ ^ . . i r properform " cr Lur. An action on the case is the proper remedy lor of action jj consequential iniuy. lor a conse ^ -J - quential in JUT- 4. M'Allester v. Hammond. Aug. T. 1826. 6 Cowen's N. Y. Rep. 342. S. P. Blinn v. Campbell. 14 Johns. Rep. ^ , p. 432. but v/here ^ the injury This was an action on the case, a2;ainst the defendant for neg- is both di T ii 1 • • 1 1 • ^- 1 1 • • T 1 • 1 rect and ligently driving a horse and gig against the plaintifi, a little girl consequen whereby her knee was rendered useless. It was contended that tial either •' caseortres Case was not the proper form of action. XJviss niciv be brought. Per Cur. Savage, C. J. Where an injury done to another, by negligence, is both direct and consequential, the party injured has an election to bring either case, or trespass. 5. Shaver v. White, et al. Feb. T. 1818. 6 Mumf. Va. Rep. 110. S. P. Secor V. Babcock. 2 Johns. N. Y. Rep. 203; Watkins v. Baird, 6 Mass. Rep. 406; Hayden v. Shed. 11 Mass. 500. And lies for rpi • . ^ ^ ,. . malicious i nis was an action ol trespass for a malicious prosecution, and prosecution /joa^(,^j_^ held that case, and not trespass was the proper ac- tion. CASE, ACTION ON.— TFAm it lies/ 575 6, Vandusor v. Linderman. Jan. T. 1813. 10 Johns. N. Y. Rep. 106. S. P. White v. Dingley. 4 Mass. Rep. 433. E^..„^ .. But to sus "or. tain this ac Linderman sued Vandusor before a justice, for the loss of his ^'jgj. ^1^^^ son's service, whilst defendina; a suit brought against him bycutionmust '^ ^ be without Vandusor ; and for money paid by Linderman, in behalf of his cause and son, in defending said suit. Judgment for plaintiffs. niahcious. Per Cur. No action lies merely for bringing a suit against a person, without sufficient ground. To sustain a suit for a form- er prosecution, it must appear to have been v.nthout cause, and malicious. 7. Monroe v. Maples. March T. 1793. 2 Root's Conn. Rep- Case will Per Cur. An action on the case for a neriurv, will not lie"^*:!'^^ ' -J •' ' - gainst a against a witness after a lapse of years. v.-itnessfor perjury af ter a lapse of years. 8. Hutches v. Peck. Nov. T. 1809. 5 Johns. N. Y. Rep. 196; (197.) The Court decided that an action of trespass on the case lies Case lies by a husband against the father of his wife, for enticing herb^nda away, whereby the husband lost his wife's services and com-S^.'"f^|."\^ fort. er for en ticing her away. 9. Falconer v. Garrison. May T. 1821. 1 M'Cord's S. Ca. Rep. 209. This was an action on the case for criminal conversation, and Case isa after verdict for the plaintiff, there was a motion in arrest of edy^fo/ judgment, on the ground that case was not the proper form of ^""^^"^^ J o 7 G f I coin'ersa action. tion. The Court, Richardson, /., held, that though trespass was a proper form of action, yet case was also a proper remedy. 576 CASE, ACTION 0'!^.— When it lies. 10. Parker v. Elliot. April T. 1820. 6 Mumf. Va. Rep. 587. S. P. Vanhorn v. Freeman. 1 Halst. Rep. 332 ; Horn- KEiTH V. Barr. 8 Segt. & Rawle's Rep. 36 ; Ream v. Rank. 3 Sergt. & Rawle's Rep. 215; Clark v. Fitch. 2 Wend. Rep. 459 ; Clough v. Tenny. 5 Greenleaf's Rep. 446. Case is the In error. of action by This was an action 07i the case, brought by Elliot, the plaintiff debauchi^ng '''®^°"^j against Parker, the plaintiff in error, for debauching and hisdaugh getting with child the plaintiff's daughter. The defendant de- murred, alleging that trespass, and not case, was the proper form of action. Verdict for plaintiff, and motion for a new trial, but the Court ruled that case was the proper remedy and affirmed the judgment. No action lies by a single woman against one for seducing her ; Harriet Paul v. Frazier, 3 Mass. Rep. 71. 11. Mercer v. Wamsley. June T. 1820. 5 Har. & Johns. Md. Rep. 27. But he can p^j- Cur. An action on the case per quod servifium amisit, tain an will not lie by a father, for the seduction of his daughter, where *';^*°'^ . she is above the age of twenty one, and not in his actual when the p . daughter is employment, otherwise where she is under that age. not in his Vide JYicholson v. Stryker, 10 Johns. Rep. 115. service. 12. Van Bracklin v. Fonda. Oct. T. 1815. 12 Johns. K Y. Rep. 468. S. P. Emerson, et al. v Brigham, et AL. 10 Mass. Rep. 197. And for the Per Cur. In the sale of provisions for domestic use, the ven- wholsome ^or is bound to know that they are sound and wholesome at his provisions, peril, and if they are not so, he is liable to an action on the case, at the suit of the vendee. 13. Jones v. Barker, et al. 7 Cowen's N. Y. Rep. 445. Case is a Jones, a merchant tailor, was engaged in carrying on a prof- properrem Stable trade in his line of business, from New York to New Or- edy for con ' i • i i spiringwith leans, the successfull prosecution ot which depended on a J-a'dT^" '" knowledge of certain things, known to so few that his gains CASE, ACTION OS.— When it lies. 577 were very large. Barker conspired with Jone's foreman, in Jones absence, to obtain the secrets of the business, did obtain them, and was, in consequence, enabled to rival Jones in his trade, and Savage^ C. J. held, that an action on the case would lie against Barker and Jone's foreman. 14. Wheeler v. Patterson. Oct. T. 1817. 1 New Hamp. Rep. 88. S. P. Jenkins v. Waldron. 11 Johns. Rep. 114. This was an action on the case against the defendant, a mode-^'^-'^" ^^ , c . ^- r T-t •• ,-K. 'ion on the rator 01 a town meeting, lor maliciously rejecting the plain- ca.^c uill tiff's vote, but no; lie for rejpcung a Richardson, C. J. said, that this could not be maintained ''^"'^^^'^^^ . , , , . T • T 1 ^ -1 UD.essmal Without showing malice express or implied. Case is the proper ice be form of action, trespass will not lie; Swift v. Chamberlain, 3 -"°'^'"- Conn. Rep. 537. 15. Lincoln v. Hapgood, et al. March T. 1814. 11 Mass. Rep. 350. S. P. Osgood v. Bradley. 7 Greenleaf 's Me. Rep. 411. Case against the defendants as selectmen of the town of p Contra, ia -.,,.. ~., _ Massachu for refusing the plamtifi's vote. It was contended that the de-scits. fendants were not liable unless malice was proved. Pel' Cur. Parker, C. J. An action on the case lies against selectmen for refusing to receive the vote of a qualified elector though not chargeable with malice. 16. Smith v. Lewis. May T, 1808. 3 Johns. N. Y. Rep. 157. This w^as an action on the case asrainst the defendant, charo[- An action , . . , . ^ '-'on tne caso ing him with having fraudulently obtained a judgment in anoth- will n>i lie er state by procuring a person to commit perjury, whereby a p||!j:J^^^\^i^g judgement v/as rendered against Smith, the plaintiff in this suit, 'jy ps>J'iry T i 4.1. ^ ^} I ■ X- p xi f.ai.idiilcnt •contrary to the truth and justice 01 the case. ly obtained t;^ i-r T o 1 -rr -x/* r 1 f- judgment Kent, C. J., bpencer, and Van JYcss, Js. severally concurred in another that an action would not lie. ^'^^°" Vol. it. 73 578 CASE, ACTION ON.— F^^m it lies. 17. EsTiLi.'ij iiKiRS V. Hoy's kxhs. Spring- T. 1807. Hardin's Ky. Rep. 89. Norr.£siiist . „ . hens. in error irom an inienor Court. Per Cur. An action on the case, cannot, by the rules ol the common law, be maintained against heirs. Judgment reversed. 18. Skegeant v. Blukt. January T. 18)9. 16 Johns. N. Y. Rep. p. 74. B'rii-sa 'f'rover. The plaintiff deposited a clironometer with the de- Kai'.isr apcrfendnnt. to sell for him at not less than $500, he sold it for $ 300 son V. iili . , 1 > • • m 1 11 wliom a Without the plaintili's knowledge. left foi sale '^^^' Court, Spencer^ ,/., (after citing the cases, Dufresne v. ifheselliL Hutchinson, 3 Taun. 117; and Canes, ef al. v Bleecher, 12 price thin Johns. Rep. 304.) decided that the plaintiff could not maintain t.i;u laid on^j.Q^.pj. ij,,| j-v,^^ proper remetly was a special action on the case. 19. Bksto; v. J. W. Pkatt. .May T. 1829. 2 Wend. N. Y. Rep.' 385. S. P. Bacon v. jandford 1 Root's Conn. Rep. 1G4. And lies This was an action on the case against the defendant, for as- rvvesiils sertin-i," a falsh.Tod, whereby he in juried the })laintilT. It was Irom the ay contended that an action would not lie, but aertiMii of ;\ falsehood S:iihcr!mid, ./. held, that nn action on the case will lie for the assertion of n falsehood wi'h a fraudulent intent, as to a present or existing fact, where a direct, positive, and material injury results from such assertion. (D) vVlI2X IT LIES FOR INJURIKS TO T^K PI:RS0N RKLATIVE- LV. 1. GooDLAL V. TriE City Of Cincinati. 4 Hammond's Rep. 500. and Ohio Cond Rep. Rep. 867. S. P. Riddle v. The pROPRIETOKS OF LOCKS AND CaNALS ON I^JeRRIMACK River. 7 Mass. Rep. 169; Ciiksnut Hill Turnpike Co. v. Rutter. 4 Sergt. ifc Rawle's Penn. Rep. 6. Gray V. The PRESIDENT, directors, &c. of the Portland CASE, ACTION ON.— Tf7.cn i( lies. 579 Bank. 3 Mass. Ren. 364; Townsexd v. Susque HANNAH Co. Johns. Rep. 90 ; Steele v. W. Lock, &, Co. 2 Johns. Rep. 283 ; Mower v. The Inhabitants OF Leicester. 9 Mass. Rep. 247. The Court helcT, that a corporation was liable in an rciion on ^"^^.^ ''<^s the case, for damages for acting illegally and maliciously. corponuion The Franklin Fire Ins. Co. v. Jenkins, et al. 3 W:;nd. N. Y. Rep. 130. Per Cnr. The directors of a monied institution are re*:pons- -'^"'^ ''^^^ ible, in an action on the case, for nnpro])eriv onfaining ar.d uis-diiectors of posing of the funds, or property of the (company. a m'lr.ifd insiiiu'.i m for i in prop cr!y dispos ing of ihe funds. 3. Clute v. Wiggins. May T. 1817. 14 Johns. N. Y. Rep. 175. Action on the case. Ce^'tlorari. The plaintiff below came to the defendants house, who kept an mn-keep a tavern with a load of wheat ; hi.> horses were put into the sta- ^^nds'of his ble, and his sleigh with the wheat into the watrgon-house, where -^"''^'•^ '^'"^ ., , ~ , ,, , II- V ■ 1 ■ s:olen from the detendant usually put tnem, and during the nigiit Xte wap-- hi-, ii^a with gon-house was broken open: and the wheat stolen. out.hisbe o t 5 i„g in fault. Held by the Court, ihat the defendant was liable. He rnay be Vc:ir entrusted to him, to be transported to a certain place, which '"'''■ :'"^ ' ' ' ' neglisTPii'ly were lost by the defendant's negligence. lo es go >ds. Per Cur. Savage, C. J. said, that the action should be case and not trover, as the defendant's inability to deliver the goods, did not arise from any tortious act on his part, though. It may have arisen from his negligence. Vide tit. Carriers ; Ante p.'^o24. 80 CASE, ACTION 01^.— When it lies. SoMERs V. Barkemstead. March T. 1791. 1 Root's Conn Rep. 262, And (oril 'pj-jg Court held, that an action of trespass on the case, and not legally sci'.d _ * jiigapau c^5inn;;5z7, was the proper remedy, where a pauper is illegaMy pei- into a - • . , (q,^..^ sent into a town. 6. Cambpell v. Neely. May T. 1S29. 2 Wend. N. Y. Rep 559. An action Error from a justice's court, on llie C:UC tt i i ^ n • ■• .i r • a lies Dgains; iNeely, sued Carnpell m aition on the case, tor interrupting an a person officer in the service of a warrant in a civil action, which he who GO ... * 1 • A stiucts tiie had procured to be issued against one A,, by secreting A., ofaprcccss and assisting him to elude service of the process. Judgment for the plainlifF. Marcy^ C. J., in reversing the judgment below, said, that an action on the case, for obstructing the execution o{ mesne pro- cess cannot be maintained, unless the plaintiff aver and prove he had a cause of action against tlie person whose arrest was prevented. FuLGHAM v. LiGHTFooT. April T. 1798. 1 Call's Va. Rep- 219; (250.) Andliesby A^ action on the case, will lie in favour of one unlawfully jiriveJ of a deprived of a beneficial office, against the person who has de- be>,cficiai pi-ived him of it. omce a ^ gainst 1 person ( priv'iighim gainst iho Vide Gordon v. Butts, PennhiEr, Rep. 334. person cie o < ^ Van Slvkv. Hogeboom. Aug. T. 1810. 6 Johns. N. Y. Rep. 270. S. P. Harrington v. Ward. 9 Mass. Rep. 251 ; Heywood V. Hildreth. 9 Mass. Rep. 393; Bakery. Cook. 11 Mass. 236 ; Cobby v. Sampson. 5 Mass. Rep. 310. Andngainst -php Court in this case, held, that an action on the case, was a shenff for .,._,_ „. nn csc:ij;c. the proper remedy, against a sheriri, for an escape of a pris- oner who had been surrendt-red by his bail, but before he had been charged in execution on a ca. sa. 9. Andonnot FRENCH v. O'Neil. May T. 1790. 2 Md. Rep. 401. mhi'e of •^"' ^'"'' "^^ ^'^ action on the case, against a sheriff for an li:::itaii,jp.s- escape, the act of limitations cannot be pleaded. CASE, ACTION ON.— When it lies. 681 10. Kain, et al. v. Ostrander. Aug. T. 1811, 8 Johns. N. Y. Rep. 159. (207.) This was a special action on the case, by the executors of th^saa^oiT' one R., a sheriff, against the defendant a gaoler, for suffering a will not lie prisoner to escape, and the court were inclined to think that gaoieiat this action would not lie against a gaoler, at the suit of ^he ^f^^^.^Jj.'!^^^^* sheriff for a negligent escape. ecu tors for an escape. 11. Jackson v. Adams, et al. March T. 1813. 9 Mass. Rep. p. 484. Action on the case, against the defendants, as printers of a ^ jP""p^ newspaper to recover damages for the incorrect printing of an pf^'' is liable 1 • 1 • ? 1 r 1 1 I "1 ^" action advertisement relative to the sale oi property, whereby the on the case plaintiff was injured. It was contended that the defendants f^'"^^J<^^l^^^^ were liable for the amount of damage incurred by the plaintiff, anadver tiscment, Per Cur. Scwall, J. A printer of a newspaper, is generally bm not for answerable for carelessly printing an advertisement; but not ^"^' ^.^"^^j^ for incidental and remote consequences involving considerable consequen , . cf'S the loss and damages to his employer, the printer not having been printer not particularly warned of the necessity of correctness in the indi-''^\'."s!'^^" , , "^ •' parlicularly vidual instance. warned of the neccssi ty of correct 1 2. ness. Cairnes & Lord v. Bleeker. Aug. T. 1815. 12 Johns. N. Y. Rep. 300. _, _, x-fi • 1 • 1 IT I i And lies Per Lur. Where an agent is authorised to deliver goods to againstan a third i)erson on receiving sufficient security for the amount, •'?,<'.""''.'■ t o J ^ . taking m and the agent delivers the goods, but does not take sufficient sufficient security, an action on the case is the proper remedy. secun y. And an action on the case in the nature of a waste lies against the assignee of a lessee ; Short v. Wilson, 1 Johns. Rep. 33. And by heirs to recover damages for destroying their title deeds; Daniels, et al. v. Daniels, ct al. 7 Mass. Rep. 135. 13. Long v. Coldurk. March T. 1814. 11 Mass. Rep. 97. S. P. Ballow v. Talbot. 16 Mass. Rep. 461. Casdiesa ^ gamst a per Assumpsit against the defendant on a note signed by him, s^pn who "p?-o William Gill, J. S. Colburn." for another Held by the Court, Parker, C. J., that the action could not be Jhority. ^" 582 CASE, ACTION ON.— When it lies. sustained against the defendant, that the plaintiff's remedy was against Gill, if Colburn had authority to sign his name and if he had not, that a special action on the case might be sustained against Colburn. 14. Turner v. Tuttle. Jan. T. 1792. 2 Root's Conn. Rep. 351. S. P. Bull, et al. v. Pratt. I Conn. Rep. 342. Ar.dagainst An action on the case, lies aecainst the seller of a public se- the seller of- ., ,• , • . r •. ■. , m , • , a counter ciirity, which is counterleit, Avhere he affirmed it to be genuine. feit pnblic scciriiy, ,g where he Segenu Strand t. Shimer. May T. 1825. 3 Halstead's N. J. Rep. ine. p. 134. Aridl-csfor The court in this case, said that for the non performance of a f),^,j'.^*'j{|.P"^Q contract to pay a certain sum in articles of merchandize, the ac- pay a sum tion should be case and not debt. in certain article:;. lb. Sayers v. The inhabitants of Springfield. Sept. T. 1825. 3 Halst. N. J. 166. And fn- the In error. brer.ch ot a contract to Ewhig, C.J. held that case was the proper action for the maiiAtain r i /• . . r r theponrof breach ot a contract to maintain the poor of the township, by aicwnslnp j.g^gQj^ whereof the township was held liable. 17. Commissioners or Brown Co. v. Butt. 2 Hammond's Rep. 34S; and Ohio. Cond. Rep. 398. Case IS the p^^ (j^^j.^ Hitclicoclc^ J . A Special action On the case is the proper rem ' " edy fora proper remedy for the sheriff against the commissioners when gainst com '^^ ^^'^ been held liable for an escape of a prisoner which was missioncrs occasioned by the insufficiency or want of a iail. where he "^ j j was held lia ble for an 1 8. escape oc casioncdhy Almy V. Harris. Nov. T. 1809. 5 Johns. N. Y. Rep. 174. the insuffi ii-j-ci-r»ci run \,r ciencyofa ^'^' ^' "• oTEVENS V. 1 HE PROPRIETORS OF THE MlD- J^^^- DLESEX canal. 12 Mass. 466; Stowell v. Flagg. 11 Mass. Rep. 384. But case r^ ■• • will not lie ^"^ certiorari. havmgT" Harris sued Alray in the court below, in an action on the nghtoffer case, for disturbing him in the eniovment of a ferry across a lake. It appeared that the ferry had been gianted to Harris by CASE, ACTION O'S.— Declaration in. ' 583 the Court of common pleas, and the Court in reversing the j^'^^g' t^|-^"[*^.^^.pj. ment, ruled that an action on the case would not lie, and that son (listiub Harris' only remedy was for Ihe penalty given by statute Sess. I'cmc-dy'is,'' 36. C. 64. 2 R. L. 210. for the pei'i ally given by statute. .(E) Declaration in.* And see tit. Declaration. 1. Thomas v. De Graffenreid. Nov. T. 1819. 2 Nott & M'Cord's S. Ca. Rep. 143. S. P. Smith v. Shackel- . FORD. 1 Nott & M'Cord. 36 ; Dougherty v. Dorsey. 4 Bibb. 207 ; Monroe v. Maples. 2 Root's Rep. 553. This was an action on the case for malicious prosecution, the In an action declaration stated that the said Ihomas, was in the due course f,„niali of law acquitted of the charge, and in support of the ^I'^gf^^i"" cSn'thr in the declaration, that the defendant had been acquit' ed, hisdcclaiation counsel produced a copy of the indictment on whicn it appeai- tiie prosecu ed that the errand iurv had returned " wo 6«7/ " Motion for a lion at an •' •' 111- 1-1, •^""' ^'""^ nonsuit that the evidence did not support the declaration, which must be was granted. Motion to reverse that order, and reinstate the j^™,^'^*^' "^ cause. Per Cur. J^otf, ./. It is essential to an action., for malicious prosecution, to show that the prosecution is at. an end. The word accquittcd is a word of technical import, and must be un- derstood in its technical sense ; to wit : an acquittal on trial by a jury. The declaration was w'rong, or the proof insufficient, in either case the nonsuit w"as properly ordered. Young v. Gregorie, et al. Nov. T. 1803. 3 Call's Va. Rep. 386; (446.) This was an acljon on the case, for malicious prosecution ; the Aiulitmust declaration averred that the defendants, did maliciously, «^nd _^^/^[.^'^^g,""pf ^u^7Aou/ an// /cp-a', 07' jus'/'/^atZe cause, attach the goods of the t-'ie want of i-Tfo 1-1 o probable plaintitT, &C., to his damage, &.c. cause. Per Cur. Flemming, J. A man is not liable to be sued for a malicious prosecution, onless the plaintiff shov/s that there v.-as * Thf declaration in an action on t!ic ca^-e, oughl not in general to state the inju- ry to liuvo !)cen cornmilled vi el armis, nor should it conclud-' cojilra paceni, in \v'hich respects it |)rincipally differs fro:ii a declaration in trespass ; Coin. Di^. Action on the case, C. 3. 4. A. SS4 CASE, ACTION 0}^ .—Evidence on. no probable cause for instituting the process. Probable cause, therefore is the very gist of the action ; and being absolutely necessary to sustain the suit it must be averred. The words, justijiahle cmise, do not supply the omission ; because, there may not be a justifiable, and yet there may be a probable one. 3. Story v. Odin. March T. 1815. 12 Mass. Rep. 157. ces^arv"hi Action on the case for obstructing the plaintiff's lights, an aclion ^(3, * on ihe c-\se foriliedis p^j- Ciir. In an action on the case for stopping the plaintiff's aneascnient lights, &c. it is not necessary to allege that his house is an an- forihe cient one, or that he is entitled by prescription to the easement plaintiff to ^ ' ... aver in his in question ; but ^vithout such allegation, the plaintiff may prove declaration •i.-iiixi jt-aL i i,' „ that the *^^ ancient right to the easement, 11 it be necessary to his case. house is an ' ancient one, ~ or that he . tit t- iscntiiicd (F) EVIDENCE IN. And sce tit. jE/riaencc ; Trespass ; Mau- jL^t^rh? ^^"^ "^- Prosecution, Sfc. casement. 1, Weld v. Bartlett. Nov. T. 1813. 10 Mass. Hep. 470. S. P. Young v. Hosmer. 11 Mass. Rep. 8 9; Nye v. Smith. 11 Mass. Rep. 188; Varrill v. Heald. 2 Green. Rep. 91 ; Eaton v. Ogier. 2 Greenleaf 's Maine Rep. p. 46. Case a Case aecainst the defendant as sheriff for the neglect and de- gainst an o_ d officer, he fault of his deputy. It appeared that one C, a deputy of the evidencc^in defendants, had an original writ to serve on a debtor who was mitigation extremely sick, and poor, C. arrested him and returned that he that the'' ' had taken bail, when in fact none was taken. On the trial *''='^'-'"' ''f"^ against the defendant, the inability and poverty of the debtor, extremely o ' / . . . . ^ , sickand were permitted to be given in evidence, in mitigation of dama- property.'' g^s. The jury found nominal damages only and the plaintiff moved for a new trial. Parker, C.J. The defendant proves the extreme sickness of the debtor to acquit himself of any wilful wrong to the credit- * Cas3 is the proper remedy for obstrnctitig liglit or air through an ancient win- dow by any erection on the adjoini;iir land; and such action may be bronglit in the name of the tenant in possession, or of the person entitled to the immediate re- version ; though the avnrments in tlie declaration necessarily difFor in the latter , case ; Complon v. Richards, 1 Price's Exch. Ilep.27. CASE, ACTION 0^.— Evidence in. 586 or ; and he proves his poverty, to show that the creditor has suffered no damage. This we think is reasonable and lawful, and the verdict founded on this evidence ought not to be dis- turbed by the court. 2. Fuller v. Holden. Sept. T. ,1808. 4 Mass. Rep. 498. This was an action on the case against the defendant, a con- j^^j^ stable. The plaintiff sued out an attachment against one P. evidence 1-1 • 1 I r 1 1 1 • 1 that the which was given to the defendant to serve, w4io served it, and property at returned, that he had attached two cows, the property of P. ; ^^'^^'^^^j^^^" judgment was recovered against P., and a \vrit of execution sued property of out and delivered to the defendant to be executed, who return- ed that he had committed P., but that the cows were rescued, not being the property of P. P. took the benefit of the act, for the relief of poor prisoners, whereby the plaintiff lost his debt and costs. In this action against the defendant he offered in ev- idence, that the cows were not the property of P., and there- fore the plaintiff sustained no injury, which evidence was reject- ed, and judgment for plaintiff. Motion for a new trial. Per Cur. Parsons, C. J. We are satisfied that under the general issue, the defendant may prove that he was guilty, of no neglect, and that the plaintiff has sustained no injury by his nonfeasance, and proof that the cows were not the property of P., was good evidence, and was improperly rejected. New trial granted. 3. Tyler v. Ulmer. March T. 1825. 12 Mass. Rep. 163. Per Cur. Parker. C.J. In an action on the case against ;*-"*^*^?'^* . ® ters and con the sheriff, for the default of his deputy, the letters and confess- fessions of ions of the deputy are competent ; and the jury may prefer them ^re ^ood^^ to the testimony of witnesses. evidencc- 4. Waterhouse v. Waite. May T. 1814. 11 Mass. Rep. 207. The Court held in this case, that in an action on the case, -^"d^? . . may give against an officer for a neglect 'of duty, he may show, in mit- in evidence igation of damages, that the suffering and loss of which the ^^^f^^j^gj plaintiff complains, are chargeable to his own neglio-ence, and *'f ^^^'"^ o^ . o D 7 casioned by not to the neglect or misconduct of the officer. the plain Vol. II. 74 tiff'snegli gence. 68« CASE, ACTION ON — Evidence in. 5. Nye v. Smith. May T. 1814. 11 Mass. Rep. 188. And that pgy ^^^_ Ij^ j^j^ action on the case against an officer, for a the debtor i r ■ .... has always neglect of duty, he may show in mitigation of damages, that the £to b« <-lebtor has not in fact avoided, but has always been subject to taken in be taken in execution, eJcecutioQ^ 6. Green v. Ferguson. Oct. T. 1817. 14 Johns. N. Y. Rep. 389. And in an Q^se for a false return. actKn a » gainstan Park sued the plaintiff in the Court below but the summons officer .i*r a . ' falsereturn, was not delivered to him by the ofEcer (the defendant) but thaThc'had^^'^^^)' ^"^ maliciously returned that he hid served it upon the served pro plaintiff &c. by which neglect of the defendant, the plaintiff cess upon ^11- 1,- n T 1 1 thepl: iniiffwas prevented making a- y defence, &.c. It appeared upon the wher. by trial that the action was for a penalty in drawins; a seine in judgment t.- i /-^( , '' ^ was obuiu lish Creek. The defendanf offered to prove that the plaintiff hinX- a'^ ^'^^^ violated the law and was subject to the penalty. The evi- penalty, the dence was overruled. "' ' officer may show the Verdict for the plaintiff below. plaintiff had subject Per Cur. The evidence offered orght to have been admitted ed himself • • • • r > tothepenalinmitigiition ot damages. It is evident from the testimony that uon"ofE^* ^^'^^ ^ '• ^'"^ "Tf^^istake in the officer in having served the sum- ftges. mons on the^^c&eng.^etspji. 7. Tyler v. Ulmer. March T. 1815. 12 Mass. Rep. 163. Butanoffi Action on the case against the defendant a sheriff for the de- cer cannot fj^^jj. q£ q^q q|- j^jg deputies in not satisfying an execution in give in evi i Jo dencc in mit favour of the plaintiff as; inst one F. The defendant insisted igauonof 1 • 1 I 1 damaic^s, that nominal damages only ought to be given ; because the dibtorcon ^^^tor was still solvent and able to satisfy the execution. tinues sol Per Cur. Parker, C. J. Indeed it would be extremely mis- vent, and 1- . ., lY- . 1-1/. 11 that the ctiievous to permit an officer to excuse himself, or even to alle- ^®|"'/"^7 "viate the damages consequent upon a V'ilful neglect of duty, by coveredof showing that the creditor may still, by a new process, or by a ^''"* nevv execution, obtain satisfaction of his debt. The very fact, attempted to be used in mitigation of damages, agravates the the misconduct of the officer. For if the debtor is able to pay, he ought not under any pretext to return the execution unsatis- fied. CASE, ACTION ON.— Damage* in. 587 8. DoANE V. Badger. March T. 1815. 12 Mass. Rep. 65. Per Cur. In an action on the case for a misfeasance, the V" ^'^"-^ ... ' lion n-Hsfeas plainlitt cannot give in evidence a non-feasance by the defend- ance cannot ^ni,nov vice versa. ^^ .^^E^^r nonfeas ance nor — — vice vers(L (G) Damages in. 1. Weld v. Bartlett. Nov. T. 1813. 10 Mass. Rep. 470. S. P. Young v. Hosmer. 11 Mass. Rep. 89; Walker v. Has- kell. 11 Mass. Rep. 177; Gerrish v. Edson. 1. N. Hamp. Rep. 82. The Court in this case hehl, that in an action on the case mem a^^ against an officer, for a false return upoa an oripinal writ, or s^''"'*'- f^« r 1 p 1 , in, , debtor is upon an execution, or for any default or neglect of duty, by prima fade which the debt appears to be lost, the iudfrment in the suit ^7"^®"^^ °^ "^ '. _ , . JO themeftsure against the debtor is prima facie evidence of the measure of of damage damages, which the plaintiff has sustained. by th^^*^ plaintifFin ' an action g on the case against an ofiicpv lor HoDSON V. Wilkins. June T. 1830. 7 Greenleaf's Me. Rep. neglect or p. 113. default of t duty. Case against the sheriff for the neglect of one of his deputies. But in •I--11- • •• r -i r-, -11 • Maine the Wefiton^ J., in delivering the opinion ol the Court, said, that in plaintiff on Enaction on the case against an officer for not serving an execu- ^J[g^^'J."]^j|'[^ tion, the jury are to allow the plaintiff such damages only as he damage sus has sustained by the breach of duty ; unless the neglect was wil-iess wilful ful, with a view to injure the plaintiff, in which case they are to "^glectbe allow him his whole debt. Hubbard v. Shaler June T. 1805. 2 Day's Conn. Rep. 195. InConnecti rer Cur. In an action against the County, for an escape on plaintiff mesne process, damages may, upon inquiry, be recovered, to the gJ^^^J^*^"^ amount of the whole sum, for which the person who has escap- ^^''^f^le sum 1 ■ i.1 i'..i,,^ . f'"' which ea, was in custody, and interest ; but not of course as the con- the debtor Bequence of a verdict for the plaintiff. om^"^''"' 588 CASE, ACTION ON.— Dama^M in. 4. . In an action on the case Tyler V. Ulmer. March T. 1815. 12 Mass. Rep. 163. against an ..■'*■. officer for Action on the case, against the defendant, a sheriff for the de- goods a"^ fault of one of his deputies. It was contended for the defend- tachedby j^j^^ ^\^^^ t]^g j-^jg of damages should be the value of the goods at will'belia the time they were attached. Verdict for plaintiff. Motion for bieforthe „ „„„ ^^-i value of the ^ "^^ ^'^^^^• goods, at pg^ (j^^^ Parker, C. J. The value of the goods, at the tke tune , , ' . . theexecu time the execution should have been levied, and not at the time toTavT^ of the attachment, forms the true measure of damages. been levied, and not at g the time of mtnL^''^ Bradley v. Amis. April T. 1806. 2 Hayw. N. Ca. Rep. 399. In an ac This was an action for a nuisance, by overflowing the plain- tionfora .-, , , fc> r nuisance tm 's lands. o-esouo^htto The Court in adverting to the damag'es in this action said, becompe that the damages ought not to be for what the incommoded tent for the . ^ demolition prppert^ i^ .w^orth, but competent to the purpose in view ; that °j,j|^^ Q^j.^^^ is, a demolition'of the erection, that occasions the nuisance, sionsthe Sometimes the pibfit$.of .sHtrcjh erectionsfcAs merchant's mills for nuisance. . , „ ^^ ^^^^^^^^ ^ . ... 3?,| ^, i, , instance, are oi much greater value in one year, than the> fee simple of the annoyed property. In such cases the object of the law cannot be obtained but by damages equivalent to the profits gained by the erection, or by damages to such an amount, as will render those profits not wortfi pursuing. 6. Pastonius V. Fisher. Dec. T. 1828. 1 Rawle's Penn. Rep. p. 27. But the This was a special action on the case, against the defendant, raayrefov *° recover damages for an injury done to the plaintiff's land. er nominal It was contended for the defendant, that to entitle the plain- damages ' *^ without tiff to recover, actual damage must be proved. luaHnjury'! Gibson, C. J. held, that the plaintiff was entitled to nominal damage, though he failed to prove the particular injury com- plained of, or any other actual injury. 7. Barrell v. Lithgow. June T. 1807. 2 Mass. Rep. 527, inanac Thisi^as an action on the case against the sheriff, for the caseagainst^^K^'g^'^'^^of his deputy who permitted one. L. to escape who a sheriff for -^y^s Committed to his custody upon mesne process, in favour of an escape, j ir x 7 CASE, ACTION O}^.— Damages in. 5S9 he plaintiff. The jury gave damages for the plaintiff but in a the Jury- less sum than the judgment for which L. was imprisoned, cieiion in Motion to set aside the verdict, and to grant a new trial for insuf- assessing . 1 damages, liciency of the damages awarded by the jury. and need Per Cur. The question is, whether the jury are bound by the plaintiff law to find for the plaintiff, his whole debt, although the debtor h^^j^jy^ole may, in fact, be insolvent and worth nothing. It hasJseen long settled that the jury are not obliged to find for the plaintiff his whole debt, when the debtor, committed upon original process escapes through the negligence of the gaoler. 8. Covington v. Exrs. of Lide. Feb. T. 1791. 1 Bay's S. Ca. Rep. 158. Per' Cur, In a special action on the case the plaintiff may And he recover less damages than those laid in the declaration, though ^r^i^g^^han he cannot recover more. laldinth* declaration 9. Hughes v. Heirsel. December T. 1808. 1 Binney's Penn. Rep. p. 463. The Court held, in this case that in order to support an action on the case for damages, occasioned by a nuisance, it is not ne- damage cessary that the damage sustained, should have been direct it"?ednotbe •',"_' ' direct, in oi is enough that it was consequential. der to sus TT' 7 T ,' r^ 1 T • • ' • T -tainaaac Viae cpntra^ Justice Lrants atssennng opinion^ in me case of tion for a. Haymes v. Gantt, 1 M^ Cord's Rep. 545. nuisance. END OF VOLUME IL •V'^'- ii-f^^ :^ LAW LIBRARY UNIVERSITY OF CALIFORNIA LOS ANGELES UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 927 502 5 /