I OJnrnpU ICam ^rlynnl Hibtaty Cornell University Library KF 888.H27 1857 V.I American leading cases :being select dec 3 1924 018 847 354 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018847354 AMEEICAN LEADING CASES. VOLUME THE FIEST. BY H. B. WALLACE. WITH ADDITIONAL NOTES, BY J. W. WALLACE. AMERICAN LEADING CASES: BEING Select Dmeione OP AMERICAN COURTS, > IN SEVERAL DEPARTMENTS OF LAW; WITH ESPECIAL REFEEENCE TO JIERCANTILE LAW. WITH NOTES, EV J. I. CLARK HARE and H. B. WALLACE. FOURTH EDITION, ENLAHGED AND IMPROVED. WITH ADDITIONAL NOTES AND REFERENCES TO AMERICAN DECISIONS, BY J. I. CLARK HARE and J. W. WALLACE. VOL. I. PHILADELPHIA: T. & J. W. JOHNSON & CO., LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS, 197 CHESTNUT STREET. 1857. Entered, according to Act of Congress, in the year 1857, BY JOHN WILLIAM WALLACE, In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. Entered, according to Act of Congress, in the year 1852, BY H. B. WALLACE, In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. Entered, according to Act of Congress, in the year 1851, BY T. AND J. W. JOHNSON, In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. Entered, according to Act of Congress, in the year 1847, BY T. AND J. W. JOHNSON, In the Clerk's Office of the District Court for the Eastern District of Pennsylvania. King & Baird, Printers, 9 Sansom Street. PREFACE TO THE FOUETH EDITION OF THE FIEST VOLUME. The approbation which the plan of Mr. Smith's Selection of Leading Cases generally received, has induced the Editors of the American Edition of that work, to employ the same method in treating of other points supposed to possess interest and importance in the jurisprudence of this country. The popularity of Mr. Smith's book was undoubtedly due, in a very great degree, to the clearness, neatness, and simplicity with which the most difficult subjects were explained in the notes of that intelligent and accomplished writer. In these qualities the present Editors make no pretension to be his rivals. The design of his Work, however, is quite as well adapted to the laws and the reports of this country, as to those of England. The essential merits of the plan seem to consist, partly, in the arrangement which it suggests, by which the subjects are distiibuted according to a connexion, natural and positive, rather than speculative and theoretical ; and partly, in intro- ducing the discussion of a topic of law, with a practical exemplification of the principal doctrine, in which it is seen at large and in its applied form. The plan of Mr. Smith's work has therefore been followed ; and the title of Leading Cases has been adopted, although it cannot with quite the same propriety be applied to any considerable selection of American decisions. The common law of the different States of the 1* VI PEEFACE. Union is, to a great extent, the same ; but the instances are not very numerous in which cases in any of the courts can be referred to, as having, for the first time, estabUshed particular principles, and, by force of authority, led other tribunals to adopt them. The title used by Mr. Smith has been retained, however, from convenience : and great attention has been given to the choosing of such decisions as, in point of fact, have been, and are, in their several departments, the most guiding and authoritative in American law. The Selections in the present work, are proposed as illustrations of the law ; embodying and exemplifying important principles ; sometimes, fairly entitled to the name of Leading Cases ; chosen, in all instances, as decisions whose character is approved, or whose importance is unquestionable. In some of the points selected for discussion in the present volume, a reference has been had to the subjects of the American notes to Mr. Smith's work, so as to complete certain titles, by treating of matters not touched in those notes, yet allied to the topics there concerned. In the American note to Twyne's Case, in the former publication, the subject of fraud, under the statutes of Elizabeth, as connected with the retaining of possession on sales of chattels, was discussed : in the present volume, the subjects of fraud in voluntary conveyances, and in assignments to trustees for the benefit of creditors, the latter of which is quite peculiar to this country, are treated at large. In the note to Bickerdike v. BoUman, the necessity of demand and notice, in respect to the liability of the endorsers of negotiable instruments, was illustrated; in several notes in this volume, the negotiability and negotiation of notes and bills, and the nature of the demand and notice required, are investigated. In the earlier publication, the formation of partnerships, and the powers of one partner after a dissolution of the association, were treated ; in this, the power of one partner to bind the firm, during its continuance, and the rights of joint and separate creditors, and the incidents of real estate held by a partnership, are examined. P E E F A C E. VU Besides these subjects, the title of Agency is exhibited in full, in this volume, in a series of cases. Owing, perhaps, to a peculiar state of society among us, it has happened that the subject of the Contracts of Infants is capable of being illus- trated from the American Eeports, with a copiousness of examples, and a certainty in principle, which the English books do not exhibit ; there is a note, accordingly, upon that subject. The topics of Interest, Domicil, and Application of Payments, are also discussed ; and the whole subject of Slander, Libel, and Malicious Prosecution, is treated in a series of notes. It is proper to say that the Syllabus, now prefixed to the cases, is not always the same with that given by the reporter ; and also that in some cases, new, and it is hoped more intelli- gible statements of the case have been given, and that matters not relative to the points treated of in this work, have been discarded. In the preparation of this Volume, the reports of all the courts of the Union have been consulted ; all of them, at least, which had reached Philadelphia before the work was put to press. But the editor has not undertaken to collate anything more than the American authorities. On most of the subjects discussed, the English cases have so often been brought together, that a repetition of them seemed not to be desirable. British authorities, therefore, are cited only at times, to point out a difference in the law, or to supply an occasional illustra tion. Philadelphia, March, 1857. CONTENTS. Pass VOLUNTARY CONVEYANCES. Sexton V. Wheaton and Wife, 17-31 Salmon v. Bennett, 31-36 Note 36-55 ASSIGNMENTS FOE THE BENEFIT OF CREDITORS. Thomas v. Jenks, Parry v. The same, 56-62 Grover v. Wakeman 63-65 Note, 65-75 SLANDER. Brooker v. CofBn, 76-80 Burtch V. Nickerson 80-84 Note 84-105 LIBEL. Steele v. Southwick 106-108 Note, 108-116 CONSTRUCTION AND PLEADINGS IN SLANDER. Van Vechten v. Hopkins 117-131 Note 131-151 DEFENCES TO SLANDER AND LIBEL. Howard v. Thompson 151-162 Note, 162-177 DAMAGES IN SLANDER AND LIBEL. Gilman v. Lowell, 177-186 Note, 186-199 ACTION FOR MALICIOUS PROSECUTION. Munns v. Dupont et al., 200-207 Note, 207-224 CONTENTS. INFANCY. Tucker et al. v. Moreland, 224-236 Vasse V. Smith, 237-242 Note, 242-267 APPLICATION OF PAYMENTS. The Mayor, etc., of Alexandria v. Patten and others, 268-271 Field and others v. Holland and others, 271-276 Note, 276-295 NEOOTIABILITY OF INSTRUMENTS. Overton v. Tyler et al., 296-298 McCormick v. Trotter, 299-302 Gerard v. La Coste et al, 302-305 Note, 305-324 NEGOTIATION OF BILLS AND NOTES. Swift V. Tyson, 325-333 Note, 333-338 PEESENTMENT OF BILLS AND NOTES. i M'Gruder v. Bank of Washington, 339-341 Bank of the United States v. Smith, 341-347 Wallace v. McConnell, 348-356 Note 356-367 FORM OF NOTICE OF DISHONOUR. IMills V. Bank of the United States, 368-372 Notes, 372-382 TIME OF NOTICE OF DISHONOUR. Lenox v. Roberts 382-384 Bank of Alexandria v. Swann, 385-387 Note 388-395 MODE OF COMMUNICATING NOTICE. Bank of Columbia v. Lawrence, 396-400 Note 400-406 POWER OF ONE PARTNER TO BIND THE FIRM. Livingston v. Roosevelt, 407^28 Anderson v. Tompkins, 429-435 Rogers and Sons v. Batchelor, 436-442 Note, 442-457 CONTENTS. XI RIGHTS OF JOINT AND SEPARATE CREDITORS. In the matter of Peter S. Smith 457-463 JMcCulloh V. Dashiell's Administrator 463-472 Note 472-483 REAL ESTATE HELD BY A COMMERCIAL PARTNERSHIP. Coles V. Coles, 484-486 Dyer v. Clark, 487-493 Note, , 494-499 INTEREST. Selleck v. French 500-503 Note, 503-535 APPOINTMENT AND POWERS OF AGENTS. Batty V. Carswell 535-537 Peck V. Harriott, 537-541 Rossiter v. Rossiter, 541-545 Odiorne v. Maxcy, 546-548 M'Clure v. Richardson 549-552 Jaques v. Todd 552-560 Note, 560-576 TERMINATION OF THE POWERS OF AN AGENT. Hunt V. Rousmanier's Administrators, 576-587 Note, 587-589 RATIFICATION OF AGENCY. Culver V. Ashley, 589-592 Note, 592-595 EXECUTION OP DEEDS BY AN ATTORNEY. Elwell V. Shaw, 596-599 New England Marine Insurance Co. v. De Wolf, 600-601 Note, 601-613 PAROL CONTRACTS MADE BY AN AGENT. Rathbon v. Budlong 614-615 Pentz V. Stanton 616-622 Dusenbery v. Ellis 622-623 United States v. Parmele 623-625 Taintor v. Fendergast, 626-627 Note 627-645 RESPONDEAT SUPERIOR. Wilson V. Peverley, 645-647 Note, 647-653 XU CONTENTS. A FACTOR MAY SELL ON CREDIT. Goodenow v. Tyler, 654-6fil Note, 661-6C8 A FACTOR CANNOT PLEDGE GOODS OF HIS PRINCIPAL. Laussett v. Lippincott, 668-675 Note, 675-681 PRINCIPAL'S OWNERSHIP OP PROPERTY IN THE HANDS OF HIS FACTOR. Teil and Petray v. Administrators of Mitchell, 682-683 Note 683-685 DUTY AND LIABILITY OP AN AGENT TO HIS PRINCIPAL. Burrill v. Phillips, 685-687 Courcier v. Ritter 687-694 Clark V. Moody 694-698 Note, 698-710 RIGHTS OF AN AGENT AGAINST HIS PRINCIPAL. D'Arcy v. Lyle, 711-723 Bradford v. Kimberly and Brace, 723-726 Note, 726-732 DOMICIL. Guier V. O'Daniel, 733-738 Note, 742-757 AMERICAN LEADING CASES, FRAUDULENT CONYEYANCES. OF THE VALIDITY OF VOLUNTARY CONVEYANCES, AS ASAINST CREDITORS AND SUBSEQUENT PURCHASERS, UNDER THE STATUTES 13 ELIZ. C. 6, AND 2r ELIZ. C. 4. SEXTON V. WHEATON AND WIFE. In the Supreme Court of the United States. FEBRUARY TERM, 1823. [reported, 8 WHEATON, 229-252.] A post-nuptial voluntary settlement, made hy a man, vjho is not indebted at the time, upon Ms wife, is valid against subsequent creditors'. The statute 13 Uliz. o. 5, avoids all conveyances not made on a conside- ration deemed valuable in law, as against previous creditors. But it does not apply to subsequent creditors, if the conveyance is not made with a fraudulent intent. What circumstances will constitute evidence of such a fraudulent intent. This was a bill brought by the appellant, Sexton, in the Court below, to subject a house and lot in the city of Washington, the legal title of which was in the defendant, Sally Wheaton, to the payment of a debt for which the plaintiff had obtained a judgment against her husband, Joseph Wheaton, the other defendant. The lot was conveyed by John P. Van Ness, and Maria, his wife, and Clotworthy Stephenson, to the defendant, Sally Wheaton, by deed, bearing date the 21st day of March, 1807, for a valuable consideration. Vol. I— 2 18 VOLUNTAEY CONVEYANCES. acknowledged to be received from the said Sally. And the plaintiff claimed to subject this property to the payment of his debt, upon the ground that the conveyance was fraudulent, and therefore, void as to creditors. The circumstances on which the plaintiff relied, in his bill, to support the allegation of fraud, were, that the said house and lot were pur- chased by the defendant, Joseph, who, contemplating at the time carry- ing on the business of a merchant in the said City of Washington, procured the same to be conveyed to his wife ; and obtained goods on the credit of the apparent ownership of valuable real property. That for the purpose of obtaining credit with the commercial house of the plaintiff, in New York, he represented himself in his letters, as a man possessing real estate to the value of twenty thousand dollars, compre- hending the house in question, besides one hundred bank shares and other personal estate. That the defendant, Sally, knew, and pcDiiitied these representations to he made. That the defendant, Joseph, in the presence of the defendant, Sally, applied to General Dayton, the friend of the plaintiff, to be recommended to a commercial house in New York, and in the statement of his property, as an inducement to make such recommendation, he included the premises. That the defendant, Sally, permitted this representation, and did not undeceive General Dayton, although she had many opportunities of doing so. In support of these allegations the plaintiff annexed to his bill several letters written by the defendant, Joseph, in the City of "Washington, to the plaintiff, in the city of New York, soliciting a commercial connexion and advances of goods on credit. The first of these letters was dated the 2d of September, 1809. The letters stated that the plaintiff's house had been recommended to the defendant by their mutual friend. General Dayton ; represented the defendant's fortune as considerable, spoke of the house in which he was to carry on business as his own, and held out the prospect of regular and ample remittances. The bill farther stated, that upon the faith of these letters, and on the recommendation of General Dayton, the plaintiff advanced goods to the defendant, Joseph, to a considerable amount, who failed in making the promised remittances ; and on the plaintiff's withholding farther supplies of goods, and pressing for payment, he avowed his inability to pay, declared himself to be insolvent, and then stated, that the house in controversy was the property of his wife. Some arrangements were made, by which the goods in the store, and the books of the defendant, Joseph, were delivered to the plaintiff; but, after paying some creditors who were preferred, a very small sura SEXTON V. WH EATON: SALMON V. BENNETT. 19 remained to be applied in discharge of a judgment which the plaintiff had obtained in January, 1812, for the sum of eight thousand two hun- dred and forty-nine dollars and twenty-nine cents. On this judgment, an execution was issued, by which the life estate of Joseph Wheaton was taken and sold for three hundred dollars, the plaintiff being the purchaser. The bill prayed, that the property, subject to the plaintiff's interest therein under the said purchase, might be sold, and the proceeds of the sale applied to the payment of his judgment. It further stated, that improvements to a great amount had been made since the conveyance to Sally Wheaton, and prayed, that, should the court sustain the said conveyance, the defendant, Sally, might be decreed to account for the value of those improvements. The answers denied that the house and lot in contest were purchased in the first instance by Joseph Wheaton, or conveyed to his wife with a view to his entering into commerce; and averred, that they were pur- chased for Sally Wheaton, and chiefly paid for out of the profits made by her industry, and saved by her economy in the management of the affairs of the family while her husband was absent executing the duties of his office as sergeant-at-arms to the House of Representatives. The answers also stated, that in January, 1807, when the conveyance was made, Joseph Wheaton was sergeant-at-arms to the House of Represen- tatives, expected to continue in that office, had no intention of going into trade, and had no knowledge of the plaintiff. The design of going into commerce was first formed in the year 1809, when being removed from his office, and having no hope of being reinstated in it, he turned his attention to that object as a means of supporting his family. He, then, in a letter dated the 24th of August, applied to General Dayton, as a friend to recommend him to a house in New York, and received from that gentleiran a letter dated the 29th of the same month, which is annexed to the answer. In this letter, General Dayton says, "pur- suant to your request I recommend to you the house of Messrs. Sexton & Williamson, with which to form the sort of connexion which you propose in New York. They have sufficient capital," &c. " The pro- per course will be for you to write very particularly to them, stating your present advantageous situation, your prospects and plans of busi- ness, and describing the nature and extent of the connexion which you propose to form with them, and then refer them to me for my know- ledge of your capacity, industry, probity," &o. &c. &c. The defendant, Joseph, in his answer, stated, that in consequence of this letter, he wrote to the said house of Sexton & Williamson. lie 20 VOLUNTARY CONVEYANCES. admitted that his account of his property was too favourable, but denied having made the statement for the purposes of fraud, but from having been himself deceived respecting its value. He denied having ever told General Dayton that the house was his, and thinks he declared it to be the property of his wife. Sally Wheaton denied that she ever heard her husband tell General Dayton, that the house was Ms property ; that she ever in any manner contributed to impose on others the opinion that her husband was more opulent than he really ivas ; or ever ad- mitted, that the house she claims was his. She admitted that she saw a letter prepared by him to be sent to Sexton & Williamson, in the autumn of 1809, which she thought made too flattering a representation of his property, and which she, therefore, dissuaded him from sending in its then form. She then hoped, that her persuasions had been suc- cessful. The answer of both defendants stated, that Joseph Wheaton was free from debt when the conveyance was made, and insisted, that it was made bona fide. The court below dismissed the bill, and from this decree the plaintiff appealed to this Court. Mr. Key, for the appellants, argued, 1. That the evidence in the cause was insufficient to prove the fact alleged, that the house in ques- tion was purchased with the funds of the wife. The case of Slanning V. Style (3 P. Wms. 335-337,) which is the stronger, as it excepts creditors from the operation of the right where it exists, goes to show, that it was not bought with funds which could be considered as hers. The fund accruing from the thrift and economy of the wife, does not constitute her separate estate. (1 Cas. in Ch. 117.) Still less could such an accumulation for her separate use, from the presents of her friends, or as a compensation for services rendered her husband, be warranted by any case or principle. 2. If, then, the purchase was not made with the separate property of the wife, were the circumstances of the husband such, at the time this settlement was made, as to justify him in making it, to the prejudice of subsequent creditors? All the cases concur in showing that he cannot do so, and that the subsequent creditors may impeach it.(l) And it makes no difference that it is the case of a settlement by a purchase, and the deed taken to the wife. This notion of certain elementary writers (Fonbl. 275; Sudg. 424; Roberts, 463), has been exploded, (1) Elstoher ». Sidney. 2 Vern. 490; Taylor v. Jones, 2 Atk. 600; Fitzer v, Fitzer, 2 Atk. 50 ; Slillman ti. Aahdown, 2 Atk. 481 ; Hungcrford v. Barle, 2 Vern. 261 ; Eoberts on Fraud Convey. 21-30; Atherley's Fam. Settlement, 212, 230-236. SEXTON V. WHEATON: SALMON" V. BENNETT. 21 and the authorities are decisive against it. (Peacock v. Monk, 1 Ves. 127. Stillman V. Ashdown, 2 Atk, 481. 2 Vern. 683. 4 Munf. 251. Partridge v. Goss, Ambl. 596'. Atherley's Fam. Settlem. 481.) Nor is there any difference between a deed to defraud subsequent creditors, and one tp defraud purchasers. (1) And a subsequent sale, after a voluntary settlement, creates the presumption of fraudulent intent in the previous settlement under the statute 27 Eliz.(2) If so, there is the same ground for similar presumption, where debts are contracted after a previous 'voluntary settlement. This must especially apply where the settlement is of all the settler's property, and the debts are large, and contracted almost immediately after the settlement. 3. But, supposing the settlement was fairly made, here is evidence of the collusion of the wife in the misrepresentation which was made to the prejudice of creditors, and she is bound by it. The principle is well established, that the property of a married woman, or that of an infant, may be rendered liable to creditors by their concurrence in acts of fraud.(3) Mr. Jones, for the respondents, contra, insisted, that many of the cases cited on the other side, might be disposed of upon their peculiar circumstances, without touching upon the general doctrine for which he contended. He admitted, that whether a settlement was within the letter of the statutes relating to fraudulent conveyances or not, if there was actual fraud, a Court of equity would lay hold upon it, and redress the injured party. But the settler must be indebted at the time of the execution of the deed, in order to set it aside on that ground. And tliere must be an allegation and proof of that fact, or the bill will be dismissed. (4) According to the original rudeness of the feudal system, the husband and wife were considered as one person, and all her rights of property were merged in his. But this is a doctrine wholly unknown to the civilized countries governed by the Roman Code; and Courts of equity have constantly struggled to mitigate its rigour. For this pur- pose, they consider the husband as a trustee for the wife, in order to preserve her property to her separate use. It does not follow, that because voluntary settlements are void against subsequent purchasers, that they are, therefore, void against subsequent credi'^ors- There is a well-established and well-known distinction in this respect between the (1) Anderson v. Roberts, 18 Johns. Rep. 515. (2) Roberts on Fraud Convey. 34. (.3) Roberts, 622; Sudg. 480: Fonbl. 161 ; 1 Bro. Ch. 358; 2 Eq. Cas. Abr. 488. (t) Lush V. Wilkinson, 3 Ves. 384; Battersbee u. Farrington, Swanst. Rep. 106; Stevens v. Olive, 1 Bro. Ch. Caa. 90. 22 VOLUNTAEY CONVEYANCES. Statute 13 Eliz. and the statute 27 Eliz. Taking the present case, then, as a mere voluntary conveyance on good consideration, independent of actual fraud, it must stand. Whatever discrepancy there may be in some of the old cases, this is now the settled doctrine in England. Thus in the case of a voluntary bond, and arrears under it, a convey- ance to secure those arrears was sustained against creditors. (1) So, also, the .substitution of a voluntary bond by another is good. (2) And a post-nuptial settlement is only void as against creditors at the time.{2>) A voluntary conveyance in favour of strangers is valid against subse- quent creditors, the party making it not being indebted at the time. (4) And in a very recent case, a voluntai-y settlement by a husband, not indebted at the time, was established against subsequent creditors. (5) But this is not a mere voluntary conveyance on a moral obligation ; it is for a valuable consideration in the wife's services. (G) The case cited from 1 Cas. in Ch. 117, has no bearing on the present question, and has been overruled since. Besides, the case of Slanning v. Style (3 P. Wms. S37,) is better vouched, more modern, and of greater authority in every respect. The pretext of collusion in actual fraud between the husband and wife in the present case, is utterly devoid of any founda- tion in the evidence. Marshall, C. J. The allegation, that the house in question was purchased with a view to engaging in mercantile speculations, and con- veyed to the wife for the purpose of protecting it from the debts which might be contracted in trade, being positively denied, and neither proved by testimony, nor circumstances, may be put out of the case. The allegation, that the defendant, Sally, aided in practising a fraud on the plaintiff, or in creating or giving countenance to the opinion, that the defendant, Joseph, was more wealthy than in truth he was, is also expressly denied, nor is there any evidence in support of it, other than the admission in her answer, that she had seen a letter written by him to the plaintiff, in the autumn of 1809, in which he gave, she thought too flattering a picture of his circumstances. This admission is, however, to be taken with the accompanying explanation, in which she says, that she had dissuaded him, she bad hoped successfully, from sending the letter in its then form. (1) Gillum V. Locke, 9 Ves. 612. (2) Ex parte Barry, 19 Ves. 218. (3) Williams v. Kidney, 12 Ves. 136. (4) Ilolloway v. Millard, 1 Madd. Rep. 414; Hobbs v. Hull, 1 Cox, 445; Jones v. Bolter, I<1. 288. (■ 5) Battersbee r. Farrington, 1 Swanst. Rep. 106 ; see also Jones v. Bolter, 1 Cox, 288. (6) 3 P. "Wms. 337. SEXTON V. WHEATON": SALMON V. BENNETT. 23 This fact does not, we think, fix upon the wife such a fraud as ought to impair her rights, whatever they may be. The plaintiff could not know that this letter was seen by the wife, or in any manner sanctioned by, or known to her. He had, therefore, no right to suppose that there was any waiver of her interest, whatever it might be, nor had he right to assume anything against her, or her claims, in consequence of his receiving this letter. The case is very d-f- ferent from one in which the wife herself makes a misrepresentation, or hears and countenances the misrepresentation of her husband. The person who acts under such a misrepresentation, acts under his confi- dence in the good faith of the wife herself. He has a right to consider that faith as pledged: and if he is deceived, he may complain that she has herself deceived him. But, in this case, the plaintiff acted solely on his confidence in the husband. If he was deceived, the wife was not ac- cessory to the deception. She contributed nothing towards it. When she saw and disapproved the letter written by her husband, what more could be required from her than to dissuade him from sending it in that form ? Believing, as we are bound to suppose she did, that the letter would be altered, what was it incumbent on her to do? All know and feel, the plaintiff as well as others, the sacredness of the connexion be- tween husband and wife. All know, that the sweetness of social inter- course, the harmony of society, the happiness of families, depend upon that mutual partiality which they feel, or that delicate forbearance which they manifest towards each other. Will any man say, that Mrs. Wheaton seeing this letter, remonstrating against it, and believing that it would be altered before sending it, ought to have written to this stranger in New York, to inform him that her husband had misrepresented his cir- cumstances, and that credit ought not be given to his letters? No man will say so. Confiding, as it was natural and amiable in her to confide, in his integrity, and believing that he had imposed on himself, and meant no imposition on another, it was natural for her to suppose, that his con- duct would be influenced by her representations, and that his letter would be so modified as to give a less sanguine description of his circumstances. We cannot condemn her conduct. A wife who is herself the instrument of deception, or who contributes to its success, by countenancing it, may, with justice be charged with the consequences of her conduct. But this is not such a case; and we consider the rights of Mrs. Wheaton as unimpaired by anything she is shown to have done. Had the plaintiff heard this whole conversation, as stated in the answer ; had he heard her express her disapprobation of the statements 2-± VOLUNTARY CONVEYANCES. made in the letter, and dissuade her husband from sending it without changing its language; had he seen them separate, with a belief on her part, that the proper alterations would be made in it, he would have felt the injustice of charging her with participating in a fraud. That act cannot be criminal in a wife, because it was not communicated, which, if communicated, would be innocent. Admitting the represen- tations of this letter to be untrue, they cannot be charged on the wife, since she disapproved of them, and believed that it would not be sent in its exceptionable form. So much is a wife supposed to be under the control of her husband, that the law in this District will not permit her estate to pass by a con- veyance executed by herself, until she has been examined apart from lier husband by persons in whom the law confides, and has declared to them that she has executed the deed freely, and without constraint. It would be a strange inconsistency, if a Court of Chancery were to decree that the mere knowledge of a letter containing a misrepresentation respecting her property, should produce a forfeiture of it, although she had not concurred in its statements, but had dissuaded her husband from sending it, and believed he had not sent it. Without discussing the conduct of Mr. Wheaton in this transaction, it is sufficient to say, that it cannot affect the estate previously vested in his wife. The cause, therefore, must depend on the fairness and legality of the conveyance to her. The allegation that the purchase-money was derived from her private individual funds, is supported by circumstances which may disclose fair motives for the conveyance, but which are not sufficient to prove that the consideration in point of law, moved from her. It must, therefore, be considered as a voluntai-y conveyance; and if sustained, must be sustained on the principle, that it was made under circumstances which do not impeach its validity when so considered. The bill does not charge Mr. Wheaton with having been indebted in January, 1807, when this conveyance was made. The fact, that he was indebted, cannot be assumed. Indeed, there is no ground in the record for assuming it. The answers aver, that he was not indebted, and they are not contradicted by any testimony in the cause. His inability to pay his debts in 1811, or 1812, is no proof of his having been in the same situation in January, 1807. The debts with which he was then overwhelmed, were contracted after that date. This conveyance, there- fore, must be considered as a voluntary settlement made on his wife, by a man who was not indebted at the time. Can it be sustained against subsequent creditors? SEXTON V. WHEATON: SALMON V. BENNETT. 25 It would seem to be a consequence of that absolute power which a man possesses over his own property, that he may make any disposition of it in which he does not interfere with the existing rights of others, and such disposition, if it be fair and real, will be valid. The limita- tions on this power are those only which are prescribed by law. The law which is considered by the plaintiff's counsel as limiting this power in the case at bar, is the statute of 13 Eliz. ch. 5, against fraudu- lent conveyances, which is understood to be in force in the County of Washington. The statute enacts, that " for the avoiding and abolishing of feigned, covenous, and fraudulent feoffments," &c., "which feoff- ments," &c. " are devised and contrived of malice, fraud, covin, collu- sion, or guile, to the end, purpose, and intent, to delay, hinder, or defraud creditors, and others, of their just and lawful actions," &c., "not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all plain dealing, bargain- ing, and chevisance between man and man. Beit, therefore, declared," &c., " that all and every feoffment," &c., " made to, or for, any intent or purpose before declared and expressed, shall be from henceforth deemed and talien, (only as against that person," &c., " whose actions," &c., " shall or might be in anywise disturbed," &c.,) " to be clearly and utterly void." In construing this statute, the Courts have considered every convey- ance not made on consideration deemed valuable in law, as void against previous creditors. With respect to subsequent creditors, the applica- tion of this statute appears to have admitted of some doubt. In the case of Shaw v. Standish (2 Vern. 326,) which was decided in 1695, it is said by counsel, in argument, " that there was a difference between purchasers and creditors, for the statute of 13 Eliz. makes not every voluntary conveyance, but only fraudulent conveyances, void as against creditors; so that, as to creditors, it is not sufficient to say the conveyance was voluntary, but must show they were creditors at the time of the conveyance made, or, by some other circumstances, make it appear, that the conveyance was made with intent to deceive or defraud a creditor." Although this distinction was taken in the case of a subsequent pur- chaser, and was, therefore, not essential in the cause which was before the Court, and is advanced only by counsel in argument, yet it shows that the opinion, that a voluntary conveyance was not absolutely void as to subsequent creditors, prevailed extensively. In the case of Taylor v. Jones (2 Atk. 600,) a bill was brought by creditors to be paid their debts out of stock vested by the husband, in 26 VOLUNTARY CONVEYANCES. trustees, for the benefit of himself for life, of his wife for life, and, after- wards, for the benefit of children. Lord Hardwicke decreed the deed of trust to be void against subsequent as well as preceding creditors. . There are circumstances in this case which appear to have influenced tlie Chancellor, and to diminish its bearing, on the naked question of a voluntary deed being absolutely void, merely because it is voluntary. Lord Hardwicke said, " now, in the present case, here is a trust left to the husband in the first place, under this deed; and his continuing in possession is fraudulent as to the creditors, the plaintiffs." His lordship, afterwards, says, " and it is very probable, that the creditors, after the settlement, trusted Edward Jones, the debtor, upon the supposition, that he was the owner of this stock, upon seeing him in possession." This case, undoubtedly, if standing alone, would go far in showing the opinion of lord Hardwicke to have been, that a voluntary conveyance would be void against subsequent, as well as preceding creditors ; but the circumstances, that the settler was indebted at the time, and remained in possession of the property as its apparent owner, were cer- tainly material; and, although they do not appear to have decided the cause, leave some doubt how far this opinion should apply to cases not attended by those circumstances. This doubt is strengthened by observing Lord Hardwicke's language in the case of Russell v. Hammond. His Lordship said, " though he had hardly known one case, where the person conveying was indebted at the time of the conveyance, that the conveyance had not been fraudu- lent, yet that, to be sure, there were cases of voluntary settlements that were not fraudulent, and those were, where the persons making them were not indebted at the time, in which case, subsequent debts would not shake such settlements." It would seem, from the opinion expressed in this case, that Taylor V. Jones must have been decided on its circumstances. The cases of Stillman v. Ashdown, and of Fitzer v. Fitzer and Ste- phens, reported in 2 Atk., have been much relied on by the appellant; but neither is thought to establish the principle for which he contends. In Stillman v. Ashdown, the father had purchased an estate, which was conveyed jointly to himself and his son, and of which he remained in possession. After the death of the father, the son entered on the estate, and the bill was brought to subject it to the payment of a judg- ment against the father, in his lifetime. The Chancellor directed the estate to be sold, and one moiety to be paid to the creditor, and the residue to the son. SEXTON V. WH EATON: SALMON V. BENNETT, 27 In giving his opinion, the Chancellor put the case expressly on the ground, that this, from its circumstances, was not to be considered as an advancement to the son. He says, too, "a father, here, was in pos- session of the whole estate, and must, necessarily appear to be the visible owner of it ; and the creditor too would have had a right, by virtue of an elegit, to have laid hold of a moiety, so that it differs extremely from all the other cases." In the same case, the Chancellor lays down the rule which he sup- posed to govern in the case of voluntary settlements. " It is not neces- sary," he says, " that a man should be actually indebted at the time of a voluntary settlement to make it fraudulent ; for, if a man does it with a view to his being indebted at a future time, it is equally fraudulent, and ought to be set aside." The real principle, then, of this case is, that a voluntary conveyance to a wife or child, made by a person not indebted at the time, is valid, unless it were made with a view to being indebted at a future time. In th-i case of Fitzer v. Fitzer and Stephens, the deed was set aside, because it was made for the benefit of the husband, and the principal point discussed was the consideration. The Lord Chancellor said, " it is certain, that every conveyance of the husband that is voluntary, and for his own benefit, is fraudulent against creditors." After stating the operation of the deed, he added, " then consider it as an assign- ment which the husband himself may make use of to fence against cre- ditors, and, consequently, it is fraudulent." This case, then, does not decide, that a conveyance to a wife or child, is fraudulent against subsequent creditors because it is voluntary, but been use it is made for the benefit of the settler, or with a view to the contracting of future debts. The case of Peacock v. Monk, in 1 Vesey, 127, turned on two points. The first was, that there was a proviso in the deed which amounted to a power of revocation, which the Chancellor said, had always been con- sidered as a mark of fraud ; and 2. That being executed on the same day with his will, it was to be considered as a testamentary act. In the case of Walker v. Burrows, (1 Atk. 94,) Lord Hardwicke, adverting to the stat. 13 Eliz., said, that it was necessary to prove, that the person conveying was indebted at the time of making the settle- ment, or immediately afterwards, in order to avoid the deed. Lord Hardwicke maintained the same opinion in the case of Town- send v. Windham, reported in 2 Vesey. In that case, he said " if there is a voluntary conveyance of real estate, or chattel interest, by one not indebted at the time, though he afterwards become indebted, if 28 VOLUNTARY CONVEYANCES. that voluntary conveyance was for a child, and no particular evidence or badge of fraud to deceive or defraud subsequent creditors, that will be good ; but if any mark of fraud, collusion, or intent to deceive sub- sequent creditors, appears, that will make it void; otherwise not, but it will stand, though afterwards he becomes indebted." A review of all the decisions of Lord Hardwicke, will show his opinion to have been, that a voluntary conveyance to a child by a man not indebted at the time, if a real and bona fide conveyance, not made with a fraudulent intent, is good against subsequent creditors. The decisions made since the time of Lord Hardwicke, maintain the same principle. In Stephens v. Olive, (2 Bro. Ch. Rep. 90,) Edward Olive, by deed, dated the 7th of May, 1774, settled his real estate on himself for life, remainder to his wife for life, with remainders over for the benefit of his children. By another deed, of the same date, he mortgaged the same estate to Philip Mighil, to secure the repayment of five hundred pounds, with interest. On the 6th March, 1775, he became indebted to Lieorge Stephens. This suit was brought by the executors of George Stephens to set aside the conveyance, because it was voluntary and fraudulent as to creditors. The Master of the Rolls held, " that a settlement after marriage, in favour of the wife and children, by a person not indebted at the time, was good against subsequent creditors;" "and that, although the settler was indebted, yet, if the debt was secured by mort- gage, the settlement was good." In the case of Lush v. Williamson, (3 Vesey, 384,) the husband con- veyed leasehold estate in trust, to pay, after his decease, an annuity to his wife for life, and after her decease, the premises charged with the annuity for himself and his executors. A bill was brought by subse- quent creditors to set aside this conveyance. The Master of the Rolls sustained the conveyance, and, after expressing his doubts of the right of the plaintiif to come into Court without proving some antecedent debt, said, "a single debt will not do. Every man must be indebted for the common bills for his house, though he pays them every week. It must depend upon this, whether he was in insolvent circumstances at the time." In the case of Glaister v. Hewer, (8 Ves. 199,) where the husband, who was a trader, purchased lands, and took a conveyance to himself and wife, and afterwards became bankrupt and died, a suit was brought by the widow, against the assignees, to establish her interest. Two questions arose : 1. Whether the estate passed to the assignees under the statute of 1 James I. ch. 15 and, if not; 2. Whether the convey- ance to the wife was void as to creditors. SEXTON V. WHEATON: salmon v. BENNETT. 29 The Master of the Eolls decided both points in favour of the widow. Observing on the statute of the 13th of Eliz., he said, that the convey- ance would be good, supposing it to be perfectly voluntary; " for," he added, " though it is proved that the husband was a trader at the time of the settlement, there is no evidence that he was indebted at that time ; and it is quite settled, that, under that statute, the party must be indebted at the time." On an appeal to the Lord Chancellor, this decree was reversed, because he was of opinion, that the conveyance was within the statute of James, though not within that of Elizabeth. In the case of Battersbee v. Farrington and others, (1 Swanst. 106,) where a bill was brought to establish a voluntary settlement in favour of a wife and children, the Master of the Rolls said, " No doubt can be entertained on this case, if the settler was not indebted at the date of the deed. A voluntary conveyance by a person not indebted, is clearly good against future creditors. That constitutes the distinction between the two statutes. Fraud vitiates the transaction; but a set- tlement not fraudulent, by a party not indebted, is valid, though volun- tary." From these cases it appears, that the construction of this statute is completely settled in England. We believe, that the same construction has been maintained in the United States. A voluntary settlement in favour of a wife and children, is not to be impeached by subsequent creditors, on the ground of its being voluntary. We are to inquire, then, whether there are any badges of fraud at- tending this transaction which vitiate it. What are those badges? The appellant contends, that the house and lot contained in this deed, constituted the bulk of Joseph Wheaton's estate, and that the convey- ance ought, on that account, to be deemed fraudulent. This fact is not clearly proved. We do not know the amount of his estate in 1807 ; but, if it were proved, it does not follow that the con- veyance must be fraudulent. If a man, entirely encumbered, has a right to make a voluntary settlement of a part of his estate, it is difiS- cult to say how much of it he may settle. In the case of Stephens v. Olive, the whole real estate appears to have been settled, subject to a mortgage for a debt of five hundred pounds ; yet, that settlement was sustained. Tiie proportional magnitude of the estate conveyed may awaken suspicion, and strengthen other circumstances ; but, taken alone, it cannot be considered as proof of fraud. A man who makes such a conveyance, necessarily impairs his credit, and, if openly done, 30 VOLUNTARY CONVEYAITCES. warns those with whom he deals not to trust him too far; but this is not fraud. Another circumstance on which the appellant relies, is the short period which intervened between the execution of this conveyance and the failure of Joseph Wheaton. We admit that these two circumstances ought to be taken into view together ; but do not think that, as this case stands, they establish a fraud. There is no allegation in the bill, nor is there any reason to believe, that any of the debts which pressed upon Wheaton at the time of his failure, were contracted before he entered into commerce in 1809, which was more thon two years after the execution of the deed. It appears that, at the date of its execution, he had no view to trade. Although his failure was not very remote from the date of the deed, yet the debts and the deed can in no manner be connected with each other; they are as distinct as if they had been a century apart. In the case of Stephens v. Olive, the debt was contracted in less than twelve months after the settlement was made; yet it could not overreach the settlement. These circumstances, then, both occurred in the case of Stephens v. Olive, and were not considered as affecting the validity of that deed. The reasons why they should not be considered in this case as indicating fraud, are stronger than in England. In this District, every deed must be recorded in a plaoe prescribed by law. All titles to land are placed upon the record. The person who trusts another on the faith of his real property knows where he may apply to ascertain the nature of the title held by the person to whom he is about to give credit. In this case, the title never was in Joseph Wheaton. His creditors, therefore, never had a right to trust him on the faith of this house and lot. A circumstance much relied on by the appellant, is the controversy which appears to have subsisted about that time between the post-office department and Wheaton. This circumstance may have had some influence on the transaction ; but the court is not authorized to say that it had. The claim of the post-office department was not a debt. On its adjustment, Wheaton was proved to be the creditor instead of debtor. It would be going too far to say, that this conveyance was fraudulent to avoid a claim made by a person who was, in truth, the debtor, where there is nothing on which to found the suspicion, but the single fact that such a claim was understood to exist. SEXTON V. WHEATON: salmon Y. BENNETT. 31 The claim for the improvement stands on the same footing with that for the lot. They appear to have been inconsiderable, and to have been made before these debts were contracted. Decree affirmed. SALMON V. BENNETT. In the Supreme Court of Errors of the State of Connecticut. JUNE, 1816. [rEPOKTED, 1 CONNECTICUT, 525-558.] Where a conveyance was made to a child, in consideration of natural affection, without any fraudulent intent, at a time when the grantor ivas free from embarrassment, the gift constituting hut a'small part of his estate, and being a reasonable provision for the child; it was held, that such conveyance was valid against a creditor of the grantor, whose claim existed when the conveyance was made. This was an action of ejectment for three^pieces of land. It was admitted, by both parties, that Stephen Sherwood was for- merly the owner of the demanded premises. The plaintiff claimed title thereto, by virtue of the levy of an execution in his favour against Ste- phen Sherwood in 1814. The defendant claimed title by virtue of a deed from Stephen Sherwood to his son Salmon Sherwood, dated the 17th of December, 1798 ; and a deed from Salmon Sherwood to the defendant, dated the 6th of March, 1802. The deed from Stephen Sherwood to his son was given for the consideration of natural affection only; and this fact was well known to the defendant when he made the purchase and took the conveyance from Salmon Sherwood. The plain- tiff contended, that his demand against Stephen Sherwood, on which said execution was afterwards obtained, arose long before and subsisted at the execution of the first mentioned deed ; and in proof of this, the plaintiff introduced the record of a suit in chancery before the superior court, in December, 1809, brought by him against Stephen Sherwood, complaining of false and fraudulent representations, in the sale of Vir- ginia lands, in December, 1794, respecting their situation and value, together with certain defects in the title, and praying for a re-imburse- ment of the purchase-money with interest, which was accordingly decreed. The defendant proved, that Stephen Sherwood, when he exe- 82 VOLUNTAEY CONVEYANCES. cuted the deed of gift to his son, was not indebted to any person, except to the plaintiff, in the manner stated ; .and that the land thus conveyed did not contain more than one-eighth part of his real estate. But it was admitted, that long before the levy of said execution, he had conveyed, by several deeds, all his real estate, and was, at that time, entirely destitute of property. Upon these facts the plaintiff contended, that the deed of Stephen Sherwood to Salmon Sherwood was fraudu- lent as against the plaintiff; and even if there was no actual fraud, yet being voluntary, it was void. The defendant, on the other hand, insisted that the deed was not made to defraud creditors, and was not void. The court reserved the case for the consideration and advice of the nine Judges. Daggett and N. Smith, for the plaintiff, contended, 1. That a deed of gift is void against any creditor who is one at the time of the con- veyance. In Westminster Hall this proposition would not admit of a doubt. The case of Doe d. Otley v. Manning, (9 East, 69,) goes further, and decides that a conveyance made in consideration of natural affec- tion only, the grantor not then being indebted, and there being no fraud in the transaction, is void against a, subsequent purchaser for a valuable consideration. In the principal case, the grantor was indebted at the time of the conveyance. He then had the plaintiff's money in his hands, which he was liable to refund. The plaintiff's claim existed as soon as he bought and paid for Virginia lands, under false and fraudulent representations, and with a defective title. The decree in chancery afterwards enforced that claim, but did not create it. The plaintiff was an equitable creditor before the decree. Can then a father, being indebted in equity, make a gift of land to his son, in con- sideration of natural affection only, which shall bo valid against such equitable creditor ? There is the same reason why a conveyance should be void against a claim in equity as at law. If the conveyance in question be not void, all voluntary conveyances, without actual fraud, must be valid. In Parker v. Proctor, (9 Mass. Rep. 390,) the conveyance was held good ; but there the creditor became such after the conveyance, and with notice of it. 2. That the defendant having purchased the premises of the volun- tary grantee, knowing that the conveyance to him was voluntary, had no better title than he had. This point is established by the case of Preston v. Crofut, decided in this court, November term, 1811. That case, indeed, went much farther ; for it was there determined, that a bona fide purchaser, under a fraudulent grantee, without notice of the ■SEXTON V. ■WHEATON: SALMON V. BENNETT. 83 fraud, could not hold against the creditors of the fraudulent grantor. In the present case, the conveyance was constructively fraudulent, because it was voluntary ; of which the defendant had full hnowledge. This was at least suflScient to put him upon his guard ; which is all the notice that chancery requires. With such notice, he must stand on the same ground as the grantee in the voluntary deed. Sherman and T. S. Williams, contra. 1. The plaintiif claims as a creditor of Stephen Sherwood, and not a purchaser. The whole class of decisions upon the 27 Eliz. c. 4, which relates to purchasers, may, therefore, be laid out of the case. The strong case of Doe d. Otley v. Manning, so much relied on by the plaintiff's counsel, is one of these. The question then is, whether a voluntary conveyance, is, under all cir- cumstances, void, within the 13 Eliz. c. 6, or our statute against fraudu- lent conveyances derived (Tit. 76, § 1) from it ? There is no case to be found in the affirmative of this question. In Sagitary v. Hyde, 2 Vern. 44, it is said by the court, "that every voluntary conveyance is not therefore fraudulent ; but a voluntary conveyance, if there was a reasonable cause for the making of it, may be good and valid against a creditor." The circumstance that the conveyance was a voluntary one, aifords a presumption of fraud. So does the circumstance that the grantor was indebted at the time. But in either case, the presumption may be repelled. (1) 2. The plaintiff had no delt against Stephen Sherwood at the time of the voluntary conveyance. He had at most only a claim for damages arising from a tort. This did not constitute him a creditor.{2) But in fact he had no legal claim whatever, as was decided in Sherwood v. Sal- mon, 3 Day's Ca. 128. If his case was such as would entitle him to relief in chancery, it was only on certain conditions. He had no debt, even after the decree, until he reconveyed the land ; and it was optional with him to reconvey or not. He might have 'sold the land for more than he gave for it ; and it might cost him more to get it back than tlie decree was worth. He might not elect to become a creditor at all. 3. The defendant being a purchaser for a valuable consideration, with (1) Newland on Contr. 383 to 338; Russel v, Hammond, 1 Atk. 15; Walker v. Burrows, 1 Atk. 93; Stephens v. Olive, 2 Bro. Ch. Ca. 90; Lush v. Wilkinson, 5 Ves. jun. 384, 387; Parker v. Proctor, 9 Mass. Rep. 390; Bennett v. Bedford Bank, 11 Mass. Rep. 421 ; Verplank V. Sterry, 12 Johns. Rep. 658. (2) Lewkner v. Freeman, Preo. Chano. 105; Fox ». Hill, 1 Con. Rep. 295, 299, 306, 303, et seq. VOL. I. — 3 34 VOLUNTARY CONVEYANCES. notice only of the simple fact that his grantor held under a voluntary conveyance, is to be protected in his title. (1) Swift, 0. J. Fraudulent and voluntury conveyances are void as to creditors ; but in the case of a voluntary conveyance, a distinction is made between the children of the grantor and strangers. Mere indebted- ness at the time will not, in all cases, render a voluntary conveyance void as to creditoi's, where it is a provision for a child in consideration of love and affection ; for if all gifts by way of settlements to children, by men in affluent and prosperous circumstances, were to be rendered void upon a reverse of fortune, it would involve children in the ruin of their parents, and in many cases might produce a greater evil than that intended to be remedied. Nor will all such conveyances be valid ; for then it would be in the power of parents to provide for their children at the expense of their creditors. Nor is it necessary that an actual or express intent to defraud creditors should be proved ; for this would be impracticable in many instances, where the conveyance ought not to be established. It may be collected from the circumstances of the case. But in all cases where such intent can be shown, the conveyance would be void, whether the grantor was indebted or not. In order to enable parents to make a suitable provision for their children, and to prevent them from defrauding creditors, these principles have been adopted, which appear to be founded in good policy. Where there is no actual fraudulent intent, and a voluntary conveyance is made to a child in con- sideration of love and affection, if the grantor is in prosperous circum- stances, unembarrassed, and not considerably indebted, and the gift is a reasonable provision for the child according to his state and condition in life, comprehending but a small portion of his estate, leaving ample funds unencumbered for the payment of the grantor's debts; then such conveyance will be valid against conveyances existing at the time. But though there be no fraudulent intent, yet if the grantor was considerably indebted and embarrassed at the time, and on the eve of bankruptcy; or if the value of the gift be unreasonable, considering the condition in life of the grantor, disproportioned to his property, and leaving a scanty provision for the payment of his debts ; then such conveyance will be void as to creditors. In the case under consideration, it is manifest there was no fraudulent intent ; the gift constituted a small part of his (1) Andrew Newport's case, Skin. 423; S. 0. by the name of Smartle v. Williams, 3 Lev. 387; S. C. By tlie name of Smart v. Williams, Comb. 247; Prodgers v. Langhan, I Sid. 133. Porter i>. Clinton, Comb. 222; Kirk i'. Clark, Preo. Chan. 275; Doe d. Bothel v. Martyr, 1 New Rep. 332; George v. Milbanke, 9 Ves. jun. 190; Jackson d. Bartlett v. Henry, 10 Johns. 1115, 197; Fletcher ti. Peck, 6 Cranch, 87, 133, 135; Hamilton & al. v. Greenwood & al., 1 Bay, 171. SEXTON V. WHEATON": SALMON V. BENNETT. 35 estate; was a reasonable provision by the father for the son, according to their condition and circumstances ; and much more than sufficient for the payment of the debt due to the plaintiff remained in the hands of the grantor. I am, therefore, of opinion that the indebtedness of the grantor at the time of the conveyance, the only circumstance that can operate against it, is not such as ought to set it aside, especially as a great length of time has elapsed, and the estate has passed into the hands of a bona fide purchaser, for a valuable consideration. In this opinion Trumbull, Edmond, Smith, Brainard, Baldwin, GoDDAKD, and Hosmer, Js., concurred. Gould, J. There is no case, I trust, in which a conveyance to a child, founded upon natural affection, has been adjudged void, as to creditors, for the mere want of a valuable consideration ; though there are several adjudications the other way. The question in Doe v. Manning, it should be recollected, arose under the statute 27 Eliz. : and it is familiar to the profession, ihdi,t purchasers, for whose protection that statute was made, have always been more favoured in the construction of it, than creditors, under that of the 13 Eliz. The former not having trusted to the per- sonal responsibility of the grantor, but having advanced money only upon a conveyance of the specific property in controversy, and in con- fidence of acquiring an immediate title to it, are regarded as having a higher equity than general creditors. This diversity of construction is agreeable to all analogy. Hence the construction of the statute 27 Eliz. has always been more rigorous, as against conveyances not founded on valuable consideration, than that of the statute 13 Eliz. As to creditors , the want of a valuable consideration may be, under circumstances, a badge of fraud ; but does not, per se, render the con- veyance fraudulent. Whether an actual fraudulent intent is necessary to render it so, is a distinct question. It is sufficient, for the present purpose, that something more than the mere absence of a valuable con- sideration, must appear, in order to invalidate such a grant. Evidence of indebtedness, at the time, at least, and, as I conceive, of indebtedness, amounting, or approximating, to embarrassment, must be shown. For if any degree of indebtedness, however small, would defeat such con- veyances; they would, virtually, beperse, fraudulent: since no individual, perhaps, or at least, hardly any one, in the community, is at any time, absolutely free from debt. And as I discover in this case no such evi- dence, as I suppose, the rule requires, I cannot pronounce the convey- ance to Salmon Sherwood, fraudulent. Holding this opinion, it is of 36 VOLUNTARY CONVEYANCES. course unnecessary for me to consider, •whether the deed to the defend- ant would be void, as against creditors, supposing the first conveyance to have been so. Judgment to be given for the defendant. By the statute, 13 Elizabeth c. 5, it is enacted, that every gift, conveyance, &o. of lands or chattels, or of any profit or charge out of them, by writing or otherwise, and every bond, suit, judgment and execution, had or made to or for the intent or purpose to delay, hinder or defraud creditors and others of their just and lawful actions, suits, debts, damages, &o., shall be deemed, only as against those persons, their heirs, successors, executors, administrators and assigns, whose actions, &o., are delayed or defrauded, utterly void : with a pro- viso, that this shall not extend to any estate or interest, upon good considera- tion and hona fide, lawfully conveyed or assured to any person, not having at the time, any manner of notice or knowledge of such fraud. By statute, 27 Elizabeth, c. 4, every conveyance, grant, estate, charge, incumbrance and limi- tation of uses, of, in, or out of lands, had or made for the intent and of purpose to defraud such as have purchased or shall purchase the same, or any rent, profit or commodity in or out of them, is, only as agaliiU those persons, their heirs, &c., and all claiming through them who have purchased, or shall so purchase, for money or other good consideration, utterly void ; with a proviso, that this shall not defeat any conveyance, &c., made upon good consideration and hona fide. At common law, previously to these statutes, every conveyance fraudulent in fact was void as against the interest attempted to be defrauded ; but, fraud, then, was always a question of fact for the jury,(l) and only, existing and not subsequent creditors and purchasers, could avoid such conveyances. (2) But it is not to be supposed that, now, in cases of fraud not within these statutes, courts of law or equity are limited by the bounds of the common law as it was understood before these statutes ; on the contrary, the same principles essentially are applicable in cases of fraud not within these statutes, as in cases that fall strictly within them;(3) and this is what is meant by the remark of Lord Mansfield in Cadogan v. Kennet, Cowper, 434, that " The principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statutes 13 El. c. 5, and 27 El. c. 4;" an opinion generally assented to. (4) Under the former of these statutes, the distinction established in Sexton v. Wheaton, between previous and subsequent creditors, is universally received ; (1) Avery v. Street, 6 Wiitts, 247, 248. (2) Doylo, Ac, i: Sleeper, Ac, 1 Dana, 531, 533; O'Daniel v. Crawford, 4Devereux, 197,203. ' (3) Taylor v. The Executors of Heriot, 4 Dessaussure, 227, 234; Whittlesy v. McMahon, 10 Connecticut, 138, 141 ; Howard v. Williams, 1 Bailey, 675, 580. (4) Hamilton v. Russell, 1 Cranch, 309, 316; Wilt v. Franklin, 1 Binney, 502, 514, 523; Hudnal v. Wilder, 4 M'Cord, 295, 297. See the discussion in Adams v. Broughton, Adm'r, 13 Alabama, 731, 739. SEXTON V. WHEATON: SALMON V. BENNETT. 37 and while, as against the latter, a conveyance is not void unless actually fraudulent, it is admitted to be a general principle in the courts of this country (except New York, where fraud is always a question of fact,) that as against creditors existing at the time of the conveyance, a voluntary conveyance is fraudulent in law, and void ; but there is some diversity in the different states, as to the degree of strictness with which this general principle is to be applied. In the celebrated case of Reade v. Livingston, 8 Johnson's Chancery, 481, 500, it was declared that the rule had no qualifications whatever, and that a volun- tary conveyance is fraudulent in respect to existing debts, by presumption of law, without regard to the amount of the debts, the extent of the property in settlement, or the circumstances of the party : and this strict rule, though now abolished in New York, prevails in Alabama and North Carolina,(l) and appa- rently in Mississippi, (2) and in Illinois. (3) In South Carolina, some exceptions are admitted to this rule, but the latter cases limit them very narrowly ; a voluntary conveyance is held to be void against existing creditors, except where the indebt- edness is utterly inconsiderable when compared with the donor's property, such as that which is contracted for the current expenses of a family. (4) Elsewhere, how- ever, though the general principle is admitted, that a voluntary conveyance is void against existing creditors ;(5) and that in all cases of this kind the question is one of law :(6) yet it is subject to the modification established by Salmon v. Bennett ; that a voluntary conveyance to a child by a father who is not at the time in embarrassed circumstances, if the conveyance be not more than a reasonable provision for the child, considering the grantor's circumstances and position, and if other property be retained amply sufficient beyond all doubt to pay all the grantor's debts, is not fraudulent; the matter, in the case of a child, being thus made a question of reasonable tendency, and convenient, practicable justice, and depending on the ability of the debtor, at the time, to withdraw the amount of the donation from his estate, without the least probable hazard to his creditors, or in any material degree lessening their then prospect of pay- ment. (7) In some of the states in which the general rule has been adopted, as (1) Miller v. Thompson, 3 Porter, 196; Moore v. Spenoe, 6 Judges' Alabama, 506; Costillo & Keho V. Thompson, 9 Id. 937, 945 ; Foot and Wife v. Cobb, 18 Alab. 586 ; (though in this last case it does not appear tohat the debtor's general circumstances were;) O'Daniel v. Craw- ford, 4 Dovereux, 197 ; Kissam v. Bdmundson et al., 1 Iredell's Equity, 180. (2) Bogard v. Gardley, 4 Smedes & Marshall, 302, 310. (3) Choleau v. Jones, 11 Illinois, 318. (4) Izard v. Izard, 1 Bailey's Equity, 228, 236 ; Beckham and Wife v. Secrest, 2 Richardson's Equity, 64; Davidson & Simpson v. Graves, Riley's Chancery, 219, 234; McElwee v. Sutton, 2 Bailey, 128, 130 ; Cordery v. Zealy, Id. 206, 208, and see Ingram v. Phillips, 5 Strobhart, 200. (5) Chapin v. Pease, 10 Connecticut. 69, 73 ; Parsons v. M'Knight, 8 New Hampshire, 35; Carlisle v. Rich, Id. 44 ; Smith v. Smith, 11 Id. 460, 465 ;'^Iope v. Penn, 1 Bland, 29, 32 ; Bank of United States v. Ennis &■ Sandige, "Wright, 605 ; Gun v. Buller, 18 Pickering, 248; Howe v. Ward, 4 Greenleaf, 195; Emery «. Vinall, 26 Maine, 295, 305 ; Hunters n. Waite, 3 Grattnn, 26; Crosby, Ac, t>. Ross' Adm'r. 3 J. J. M.irshall, 290; Thomas v. DcGraffenreid, 17 Alubama. 603, 611 ; Easley M.Dye, 14 Id. 159, 163; High et al., ■„. Nelms, Id. 360; Corprew v. Arthur et als., 15 Id. 525, 528. (6) Beers u. Botsford, 13 Connecticut, 146, 164; Sherwood D.Marwick, 5 Greenleaf, 295,302; Gardiner Bank v. Wheaton et al., 8 Id. 373, 381; see also Jonea v. Spear & Tr., 21 Vermont, 426, 431 ; and Sturdivant v. Davis, 9 Iredell, 365. (7) Salmon v. Bennett; Abbe v. Newton, 19 Connecticut, 20, 27; Kipp i. Eanna, 2 Bland, 38 VOLUNTARY CONVEYANCES. Massaobusetts and Maine, no occasion has arisen requiring the exception to be defined. In the federal courts, tbe same exception to the generality of the rule may be considered as established ; the dicta, indeed in Sexton v. Wlieaton, and in Ridyewai/ v. Underwood, 4 Washington, 129, 137, are without limita- tion, that every voluntary conveyance is fraudulent as against existing credi- tors, because voluntary, and in Backhouse's Administrator v. Jetl's Adminis- trator el al., 1 Brockonbrough, 510, 511, it was decided, that a conveyance of half his estate by a father to his son as an advancement, though there was no suspicion whatever of fraud or bad faith, was void in law as against a prior creditor; yet in Hopkirk v. Ra7\dolph et al., 2 Id. 183, the difference was recognised by Marshall, C. J., between a general principle, and one universal in its application, and so inflexible as to admit no case to be withdrawn from its operation; and he upheld a gift of two slaves and a riding-horse by a father in prosperous circumstances to his daughter, on the ground that a customary and inconsiderable gift from a parent to a child of such slight value as to come under the name of a present, could not be considered as falling within the terms or the reason of the rule against fraudulent conveyances; and the remarks made by this great judge, pp. 137, 138, upon the construction proper to be put upon the statute, were the matter unclogged by authorities, may be regarded as an unanswerable vindication of the exception or modification above noted, on grounds of reason, convenience and equity, against the stringency of Reade v. Livingston. See a similar view of fraud, under the bankrupt law. In the matter of Grant, 2 Story, 313, 319. The case of Hindeh Lessee v. Long- worthy 11 Wheaton, 199, has been erroneously supposed in some of the discus- sions in New York, to have laid down a new doctrine, that fraud was in relation to all creditors, a question of fact for the jury : in that case, the cre- ditor relied upon evidence oi fraud in fact, and did so, either because, as there was evidence to show, the conveyance was not voluntary, but upon a considera- tion of indebtedness, or because, as was stated by counsel, the statute 13 Eliz. c. 5, was not in force in the state in which this transaction took place, or because the creditor was a subsequent one, for though copies of accounts spread upon the record and brought into the Supreme Court, showed that the cause of action had arisen before the conveyance, yet, below, these accounts were not evidence, and nothing was exhibited but the record of the subsequent judgment; it was in reference solely to the admissibility of evidence of the grantor's condition, for the purpose of rebutting evidence of actual fraud, that the court said, per Thompson, J., that a voluntary deed to a child is only a presumption and badge of fraud, which may be rebutted by evidence to the 26, 33; Posten v. Pnsten, 4 Wharton, 27, 42; Miller v. Pearee, 6 Watts & Sergeant, 97, 401; (and see Kimmel c. MoRight, 2 Barr, 38 ; also Sanders v. AVagonseller, 39 Penna. State, 250 ;) Bracket et ux. v. Waite et al., 4 Vermont, 389; Smith v. Lowell, 6 New Hampshire, 67, 69; Brice r. Myers, et al., 6 Ohio, 121, 125; Miller and others v. Wilson and others, 14 Id., 108, 114 ; Dodd v. M'Craw, 3 English, 84, 105 ; Smith ». Yell, Id. 470, 475; Worthington & Ander- son V. Shipley, 5 Gill. 449; Trimhle v. Rateliff, 9 B. Monroe, 511, 514; Huston's Adm'r t\ Can- tril et al., 11 Leigh, 137, 159, and Hutchinson et al. v. Kelly, 1 Eobinson's Virginia, 125, in which cases, Tucker, P., and Baldwin, J,, were in favor of this exception, against Stanard, J., who held to the strict rule of Reade v. Livingston. See again the discussions in Hunters i; Wjiite, 3 Grattan, 26 ; and the remarks of Leigh, C, in Wilson ti. Buchanan, 7 Id. 340 ; and particularly Thacker i\ Sanders, 1 Busbee'sBquity 140. SEXTON V. "WHEATON: salmon v. BENNETT. 89 jury of the grantor's circumstances; and in another part of the opinion the principle of Si^xton v. Wheaion is assented to aa the law of the court : the case in fact has no bearing whatever upon the validity of voluntary conveyances in point of law as against previous creditors. (1) In New York, in Jackson ex. dem. Van Wi/c7c v. Seward, 5 Cowen, 67, the principle oi Reade v. Livingston, was approved and applied by the Supreme Court, and a convoyanee to children, which the court considered voluntary, was adjudged fraudulent in law and void against a prior creditor; but this decision was reversed almost unanimously in the Court of Errors, 8 Cowen, 407 ; two of the Senators, Spencer and Allen, maintaining that fraud is always a matter of fad, and that there is no such thing as fraud in law. This point being complicated with some others in that case, there has been some dispute as to what principle was settled by that decision of the Court of Errors ; but, notwithstanding the doubts ef Bronson, J., and Tracy, Senator, in Van Wyck v. Seward, 18 Wendell, 375, 398, 405, and of Walworth, C, in Hanford v. Artcher, 4 Hill's N. Y. 273, 280, as to what was adjudicated in that case, it has been agreed in all the courts of that state, that by that decision, the distinction between fraud in fact and in law was exploded, and that the question is in all cases one of fact for the jury, the cir- cumstance that the deed is voluntary being merely prirna facie evidence of fraud. This was the principle and practice adopted by the Supreme Court, afterwards in Jackson ex. dem. Peek and Ma.yhee v Peek, 4 Wendell, 301, and Jackson ex. dem. Bigelow v. Timmerman, 7 Id. 436; S. C. 12 Id. 299; by the Vice-Chancellor and Chancellor, in Van Wyck v. Seward, 1 Edwards, 327 ; S. C. 6 Paige, 62, upon a bill filed after the decision in the Court of Errors, to set aside the conveyance as voluntary and fraudulent; and by the Court of Errors in S. C. on appeal,"18 Wendell, 375, notwithstanding the earnest argu- ments of Bronson, J., to the contrary. The principle that fraudulent intent in conveyances is in all cases a question of fact, and that no conveyance is to be adjudged fraudulent solely on the ground that it is not founded on a valuable consideration, is now enacted by the Revised Statutes, vol. 2, p. 137, tit 3, s. 4 ; but it is evident that it had previously been established as a common law rule, by the first decision of the Court of Errors in Seward v. Juckson, 8 Cowen, 407. These attempts, however, to reduce fraud in all cases to a matter of actual intention, are not only opposed to all principle and authority, to common justice and to common sense, but have been frustrated by the very forms and constitutions of the courts, and cannot be successful until the respective func-, tions of the judge and jury are changed; for the court obviously possesses the same control over the subject in the form of a direction to the jury as to the force of presumptions on a question of fraudulent intent, as they formerly exer- cised through the medium of a peculiar definition of fraud, and to prevent irregularity and injustice, this control must be exercised. And this practice is established by Vance v. Phillips, 6 Hill, 433, where it is decided that though the question of fraudulent intent is now one of fact for the jury, yet if the jury eome to a wrong conclusion on the subject, the verdict will be set aside as against the weight of evidence; so that after all the discussions and legislation on the subject in New York, the result, according to Bronson, J. (whose conduct, on this whole subject, is deserving of high commendation,) is, that (1) See also Clarke etal. v. White, 12 Peters, 179, 198. 40 VOLUNTARY CONVEYANCES. " the road to justice may be longer, and consequently more expensive than it was before, but it ends in the same place." In equity, also, since the Eevised Statutes, though the answer deny a fraudulent intent, fraud may be legally inferred from the circumstances of the case; Cunningham v. Freehorn, 3 Paige, 557; S. 0. on error, 11 Wendell, 241. Against suhaequent creditors, as is decided in Sexton v. Wheaion, a convey- ance is not void unless actually fraudulent.(l) But there is a little ob.^curity as to what are the frauds of which they might take advantage. If the fraud be directed specifically against subsequent creditors, that is, if a voluntary set- tlement be made with a view to becoming subsequently indebted, which may be inferred from the fact of debts being contracted immediately after, there is no doubt that the settlement may be avoided by subsequent creditors. (2) But that is not the only sort of fraud that may be taken advantage of by subse- quent creditors; for it is clear, that if a conveyance be made colourably with actual intent to defraud any existing creditor or creditors, it may be avoided by subsequent creditors ; in other words, that evidence of collusion against existing creditors is sufficient evidence of fraud against subsequent creditors;(3) [other- wise it would be easy to evade the statute, the party, might pay off those to whom he is indebted at the time he is making the settlement, by borrowing of others, and, then, say to these last, " I did not make the settlement to defraud you, but to defraud the other persons who were my creditors." How- ever, the principle above stated is probably] limited to voluntary and colour- able conveyances, which are accompanied in law by the presumption of a secret trust for the grantor; according to the distinction stated in Clark V. French, 23 Maine, 221, that u conveyance made on a secret trust for the grantor, for the purpose of defrauding present creditors, is void also against subsequent creditors, because such a fraud is a continuing one; but that an absolute conveyance on valuable consideration and without any secret trust for the grantor, if actually intended to deprive existing creditors of satisfaction of their debts, would be void against such creditors, yiit would not be void against subsequent ones : — there is no doubt, upon the American authorities, that a conveyance for valuable consideration made with an actually fraudulent intention to one taking part in such fraudulent designs, would be void against the creditors intended to be defrauded ;(4) it is doubtful, however, (1) Bennett v. Bedford Bank, 11 Massachusetts, 521; Benton i'. Jones, 8 Connecticut, 186; Carlisle v. Rich, 8 New Hampshire, 41, 50; Blake v. Jones, 1 Bailey's Equity, 142, 143; Crosby, Ac. i: Koss' Ad'r, 3 J. J. Marshall, 29(1; Miller i'. Thompson, 3 Porter, 196; Bogard v. Gardley, 4 Smedea &, Marshall, 302, 310; Wood v. Savage, 2 Douglass, 317, 325; Ingram i. Phillips et al. 3 Strobhart, 565; Greenfield's Estate, 2 Harris, 489, 502; Thomas ». Degraffenreid, 17 Alabama, 603, 611. (2) Sexton y, Whenton; Wood v. Savage; Ridgeway v. Underwood,4 Washington, 129, 137; i\Iiidden t>. Bay, 1 Bailey, 337, 340; Hutchinson et al. v. Kelly, 1 Kobinson's Virginia, 125, l:U ; Miller i: Miller; 23 Maine, 22, 24; Kipp v. Hanna, 2 Eland, 26, 34. (3) Wadsworth v. Havens, 3 Wendell,411; Parkman v. Welsh, 19 Pickering, 221, 237 ; Smith V. Lowell, 6 New Hampshire, 67, 69; M'Conihe v. Sawyer, 12 Id. 3!I7, 403; Young v. Pate, 4 Yergor, 164; Hester et als. v. Wilkinson et als., 6 Humphreys, 216, 218 ; Hoke v. Hendcr^-on, 3 Devereux, 12, 14; Edwards, &c., v. Coleman, 2 Bibb, 204, 205; Le^yis v. Lnve's Heirs, 2 Ben. Mnnroe, 346, 347 ; Hutchinson et al. v. Kelly, 1 Robinson's Virginia, 125 ; Elliott v. Horne, 10 Aliibama, 348, 352. 44J Lowry v. Pinsont 2 Bailey, 321, 328 ; Thomas & Ashby i;. Jeter & Abney, 1 Hill's So. SEXTON V. WHEATON: salmon v. BENNETT. 41 whether it could be considered void against any creditors, but those whose injury was specially contemplated. (1) An intent actually to defraud creditors is to be legally inferred from the grantor's being insolvent at the time, or greatly embarrassed, or so largely indebted that his conveyance necessarily has the effect to hinder and defraud creditors, and a voluntary conveyance made under such circumstances, may be set aside by a subsequent creditor ;(2) indebtedness raises a presumption of fraud, which becomes conclusive by insol- vency ;(.3) But the presumption of fraud as to subsequent creditors arising from indebtedness is repelled by the fact of those debts being secured by mort- gage, or by a provision in the settlement; (4) or by proof of an understanding and agreement, not in the deed, that the trustee was to pay such debts by the sale of so much property ;(5) it is rebutted also, and if it were the only circum- stance of presumptive fraud in the case, would probably be entirely repelled by the subsequent voluntary payment of those debts by the grantor; because that shows that the grantor was not insolvent, and that he intended no fraud against existing creditors;(6) [or by a satisfaction of them on execution and sale of less than the whole property :(7) and if there be property other than that alleged to have been fraudulently conveyed, it is said that it should be first exhausted unless the conveyance was fraudulent in fact : dictum in Law v. Smith, 4: Indiana, 61. But this dictum seems open to question ; for if the con- veyance be fraudulent at all, either in law or in fact, it is utterly void, and there is no assignment in the case;(8)] but if those earlier debts are paid off by contracting new ones, or remain until, in the insolvency of the debtor, they are paid off on account of their priority, it is obvious that such a discharge of sub- sisting debts does not repel the presumption of fraud so as to render the con- Car. 3S0 ; Union Bank v. Toomer, 2 Hill's Chancery, 27, .31; Edgell B.Lowell et al. 4 Vermont, 405, 412; Fuller, Jr. v. Sears et al., 6 Id. 627, 630 ; Beals . Causey, 3 Iredel's Equity, 246; Eheon v. TuU, 13 Iredell's Law, 67 on a statute; Choute.L V. Jones, dtcifi, 11 HIinois, 318 ; the administrator's sale being sustained under special circumstances; (Shields, adm'r, &c. i. Anderson, Adm'r, &G., 3 Leigh, 729, and dictum in Babcock V. Booth, 2 Hill's N. Y., 182, 184, apparently contra, but the latter explained and con- trolled by Dcnison o. Ely, 1 Barbour's S. Ct., 612, 624. (2) Greenlee ;•. Hays, administrator, Overton's Tennessee, 300, 304. (3) Shear's v. Rogers, 3 B. & Ad., 362; Greenlee v. Hays, administrator; Stephens' adminis- trator V. Barrett, administrator, 7 Dana, 257, 262; Smith i\ Pollard, Ac, 4 B. Monroe, 66; Backhouse's administrator v. Jett's administrator, et al., Id. 503. (4) Balls V. Graham, &c., 4 Monroe, 120; Harrison, &c., v. Campbell, &c., 6 Dana, 263. (5) Warren v. Hall, 6 Dana, 450; Lynch v. Sanders, 9 Id. 59. (G) Minor v. Mead, 3 Connecticut, 289, 294; Booth v. Patrick, 8 Id. 106; Andness v. Doolittle, 11 Id. 283. (7) Thomson v. Palmer, 2 Richardson's Equity, 32; Ncale v. Hagthorp, 3 Bland, 551, 665 ; Gibbens r. Peeler, 8 Pickering, 264, 267 ; Holland v. Craft, 20 Id. 321, 328. (8) See Lassiter, v. Cole, 8 Humphreys, 621. (9) Buehler v. Gioniger, 2 Watts, 226; Stewart v. Kearney, 6 Id. 463; Welsh v. Beckey 1 Pennsylvania, 57, 61; Englebert v. Dlanjot, 2 Wharton, 240, 243, 245. (10) Babcock ti. Booth, 2 Hill, 182, 185; Brownell v. Custis, 10 Paige, 212, 218 ; M'Knight d. Morgan, 2 Barbour, 171. SEXTON Y. WHEATON: SALMON V. BENNETT. 45 A voluntary or fraudulent conveyance is perfectly good between the parties and their representatives, and against all persons except creditors ;(1) the estate becomes subject at once to the grantee's debts;(2) and a voluntary re- conveyance by the fraudulent grantee to the original grantor, will be fraudu- lent against the former's creditors. (3) Equity will sustain an executed con- veyance of this kind, and will remedy the infringement of executed rights j [and when ordering the estate to be sold to pay the fraudulent grantor's debts, will direct any surplus to be returned to that fraudulent grantee ;(4)] but in regard to executory rights growing out of a conveyance to defraud creditors, it is a settled rule in equity to leave the parties to their remedies at law, and not to interfere in favour of either ; equity will therefore not compel a reconveyance or enforce a secret trust in favour of the grantor his heirs; (5) nor enforce execution of a contract in favour of the grantee when the parties are in pari delicto ;(Q) and the remark in Sherh v. Endress, 3 Watts & Sergeant, 255, that a contract infected with actual fraud against a third person is enforceable in equity between those who intended to perpetrate the act, is, if it refer to execu- tory contracts, scarcely correct. This distinction between executory and exe- cuted agreements, has by some courts been extended to suits at law upon bonds or notes given for the consideration of fraudulent conveyances, which have been held not to be enforceable between the parties;(7) but it is rejected in Sherk V. Undress, 3 Watts & Sergeant, 255, where bonds for such consideration are decided to be enforceable. A fraudulent conveyance is void only against judg- ment creditors ;(8) and against them when they choose so to treat it, the con- veyance is wholly void and a nullity, the title being considered as remaining in the grantor subject to execution from his creditors. (9) But though the conveyance is wholly defeated by the levy of a creditor's execution, and is con- sidered as no conveyance as against it, yet it is defeated only from the time of the judgment and execution, and the conveyance is not rendered void a/j iniito.(^iO) (1) Reiohart v. Castator, 5 Binney, 109; Sherk v. Endress, 3 Watts & Sergeant, 255; Eyrick & Deppen v. Hetrick, 1 Harris, 488, 491; Jackson v. Garnsey, 16 Johnson, 189; Worth u. Northam, 4 Iredell's Law, 102; Dyer v. Hoomer, 22 Pickering, 253; Gillespie f. Gillespie's Heirs, 2 Bibb, 80, 91; Dale v. Harrison, 4 Id. 65; Finley v. Cooley, 1 Blackford, 263; Randall V. Phillips et al., 3 Mason, 378, 388; Byrd v. Curlin, 1 Humphreys, 466; Burgett v. Burgett, 1. Ohio, 469; Dearman v. Kadcliffe, 5 Alabama, 192; M'Guire ad'mr v. Miller, 16 Id. 394, 397. ' (2) Den v. Monjoy, 2 Halstead, 173. (3) Chapin v. Pease, 10 Connecticut, 69. (4) Burtch V. Elliot, 3 Indiana, 100 ; Rochelje v. Harrison, 8 Porter, 352. (5) Stewart v, Iglehart, 7 Gill & Johnson, 132, 136; James v. Bird's administrators, 8 Leigh, 510; Owen v. Sharp, et ux. 12 Id, 427; Grider v. Graham, 4 Bibb, 70; Black & Manning r. Gliver, 1 Judge's Alabama, 4:49; Jackson v. Dutton, 3 Harrington, 98 ; Contra Smith k. , 2 Haywood, 229. (6) Mason and Wife v. Baker et al., 1 Marshall, 208, 210; Norris v. Norris' administrator, 9 Dana, 317. (7) Smith et al. v. Hubbs, 1 Fairfield, 71 ; Nellis v. Clark, 20 Wendell, 24 ; S. C. 4 Hill, 424 ; Walker v. M'Conico, 10 Yerger, 228; and see Davis v. Holding, 1 Meeson & Welsby, 159, 166 (8) Hastings v. Belknap, 1 Denio, 191, 198. (9) M'Kee v. Gilchrist, 3 Watts, 230; Englebert v. Blanjot, Wharton, 240, 246; Jones t. Crawford, 1 M'Mullan, 373 ; Owen v. Dixon, 17 Connecticut, 493, 498; Banks v. Thomas, Meigs, 28, 33. (10) Jones V. Bryant, 13 New Hampshire, 53. 46 VOLUNTARY CONVEYANCES. The statute 13 Eliz. c. 4, in express terms, embraces conveyances of real and personal estate and the creation of some rights which may charge such estates. Gifts of money were held by Marshall, C. J., in Eoplcirk v. Ran- dolph, ei at. ,(1) to be within it; and see In the Matter of Grant, 2 Story, 313; but this was doubted or denied in Doyle, &c., v. Sleeper, &c., 1 Dana, 531, 636, 557; and see Ewing v. Oantrell, Meigs, 364, 375. That choses in action, and other property that could not have been reached at law by the creditors, may, when fraudulently conveyed, be reached in equity, see Bayard v. Boff- mnn, 4 Johnson's Chancery, 450 ; Hadden v. Spader, 20 Johnson, 554; Weed V. Pierce, 9 Cowen, 722; Storm v. Wadded, 2 Sandford, 495, 511 ; Proseus v. McLityre, 5 Barbour's S. C. 425, 433 ; Tappan v. Evans, 11 New Hampshire, 312, 326; Sargent v. Salmond, 27 Maine, 539, 543. Bonds given by sons to a sister upon a conveyance of land by the father were regarded as gifts by the father to his daughter, and the husband of the daughter was held liable for what was received upon them, in Hopkirk v. Randolph et al. The statute applies only to conveyances or gifts; purchases with the debtor's money in the name of third persons, are not within it;(2) but though not strictly within it, they are dealt with in courts of equity, where only they can be reached, upon principles essentially the same as those embodied in the construction of the statute ;(3) a purchase in the name of a stranger creates a resulting trust in the person who furnishes the money, but in the name of wife or child is pre- sumed to be an advancement; but this presumption against a resulting trust in the case of a wife or child, is rebutted by showing indebtedness or other cir- cumstances of fraud. (4) In Pennsylvania, where equitable estates may be taken in execution, a purchase in the name of another, ma_y be levied on and sold under a judgment against the fraudulent cestui que trust. (5) The construction of the statute 27 Elizabeth, c. 4, in favour of purchasers, has been more liberal than that of 13 Elizabeth, c. 5, in favour of craditors : the former class, not having trusted to the personal responsibility of the grantor, but having advanced money upon a conveyance of specific property and upon the faith of acquiring an immediate title to it, are regarded as having a higher equity than general creditors : per Gould, J., in Salmon v. Bennett. This is carried so far in England, that a voluntary conveyance is in law frau- dulent and void against a subsequent purchaser for valuable consideration even with notice ;(6) notice, said Lord Ellenborough, C. J., cannot vary the question, for it is only notice of a conveyance which was void against a sub- sequent purchaser for a valuable consideration ; (7) it is notice, said Sir Wil- liam Grant, not of a title, but of a nullity and a fraud ;(8) a voluntary grantee upon however fair and meritorious a ground is considered as having no (1) 2 Brockenbrougli, 13.3, 163. (2) Crozier Ac. v. Young, 3 Monroe, 157; Growing v. Rich, 1 Iredell's Law, 653, 659. (3) Taylor -o. Bx'r of Heriot, 4 Dcsaussure, 227, 234; Doyle, Jco. *. Sleeper, Ac, 1 Dana, 631 ; Whittlesey r. M'Malion, 1 Connecticut, 138, 141 ; Botsford r. Beers, 11 Id. 370, 374. (4) Doyle, Ac. ( . Sleeper, Ac. ; Baker r. Dobyns, Ac., 4 Dana, 220, 225 ; Gurthtie t'. Gard- ner, 19 Wendell, 414. (6) Kimmel >. M'Eiglit, 2 Barr, 38. (6) Evelyn c Templar, 2 Eden's Brown, 148, 149, note; Doe dem. Otley v. Manning and and another, 9 East, 69 ; Doe v. Martyr, 1 New, 332. (7) Doe V. James, 16 East, 212, 213 ; (8) Buckle v. Mitchell, 18 Vesey, 111. SEXTON V. WHEATON: SALMON V. BENNETT. 47 ■whatever against a subsequent purchaser for valuable consideration with full notice, who will receive the aid of a court of chancery to enforce specific execu- tion of a contract of purchase j(l) though that court will not interfere to aid the grantor to set aside his voluntary conveyance for the purpose of selling the land. (2) The ground upon which these decisions have gone, said Marshall, C. J-,(y) is that the subsequent sale is considered as proving conclusively that the voluntary deed was executed with a fraudulent intent to deceive subsequent purchasers : but undoubtedly, the effect of them is, as stated by Mansfield, C. J. ,(4) that if a raan after marriage make a most prudent settlement on his wife and children, such as every wise man may approve, yet if he is dishonest enough to sell it for money afterwards, he may. The law in America does not go so far : a conveyance actually fraudulent is void against a subsequent purchaser for valuable consideration even with notice ;(5) and a voluntary conveyance is presumptively fraudulent against a subsequent bona fide pur- chaser without notice ; that is, a subsequent sale to a bona fide purchaser with- out notice, is evidence that a prior voluntary conveyance was fraudulent ;(6) but a voluntary conveyance (at least according to the decisions in some of»the states,) is not void against a subsequent purchaser witli notice. (7) In others, however, the general rule is stated, that a voluntary conveyance, as against a subsequent hona fide purchaser for valuable consideration with or without notice, is fraudulent. (8) In North Carolina, a voluntary conveyance was, prior to the statute of 1840, c. 28, void against a subsequent purchaser with notice (9) But by that statute no purchasers are protected but those who buy without notice and for full value. (10) In New York, (11) it was held by Kent, C.jUpon the authorities, that a voluntary settlement is void against a subsequent (1) PuWertoft V. Pulvertoft, 18 Vesey, 84; Buckle r. Mit.ohell, Id. 100; Metealf ». Pulver- toft, 1 Vesoy & Beames, 180. (2) Smith i". Garland, 2 Merivale, 123. (3) Citheart et al. ji. Robinson, 5 Peters, 265,279. (4) Hill V. The Bishop of Exeter, 2 Taunton, 69, 83. (5) Ric er o. Ham et al., 14 Massachusetts, 137; Clapp v. Leatherbee, 18 Pickering, 131; Clapp V. Tirrell, 20 Id. 2-17; Lewis e. Love's Heirs, 2 B. Monroe 345,347; Mason & Wife v. Baker et al., 1 Marshall, 208,210; Waller v. Cralle, 8 B. Monroe, II, 12; Elliott v. Horn, 10 Alabama, 348, 352; Verplank d. Sterry, 12 Johnson, 636, 557; Hudnal i. Wilder, 4 M'Cord, 295, 308. (0) Cathcart et al. ... Robinson, 5 Peters, 265, 281; Hudnal v. Wilder, 4 M'Cord, 295, 305 ; Caston V, Cunningham, 3 Strobhart, 59, 63; Bank of Alexandria v. Patton, Ac, 1 Robinson's Virginia, 500, 644. (7) Lancaster v. Dolan, 1 Rawie, 231; Foster v. Walton, 5 Watts, 378; Dougherty j). Jack, Id. 456; Speiseu. M'Coy, 6 Watts & Sergeant, 485, 487; Mayor k City Council v. Williams, 6 Maryland, 242 ; Hudnal v. Wilder, 4 M'Cord, 296, 310 ; Moultrie u Jennings, 2 M'Mullan, 608 Howard v, Williams, 1 Bailey, 375, 580; Bank of Alexandria v. Patton, Ac., 1 Robinson's Virginia, 500, 540 ; Corprew v. Arthur, et als., 15 Alabama, 525, 530 ; The Farmers' Bank et al V. Bouglass et al., 11 Smedes k Marshall, 472, 648 ; and see Cathcart et al. Robinson, 6 Peteri 265, 280, -which seems to control Ridgeway v. Underwood, 4 Washington, 129, 136. (8) Cains v. Jones, 5 Yerger, 250 ; Marshall v. Bcjoker, 1 Id. 13, 15 ; Mason and Wife i Baker et al., 1 Marshall, 208, 210; Doyle, Ac. v. Sleeper, Ac, 1 Duna, 531. 564; or at least ^rrma/ac?e fraudulent ; Lewis v.Love's heirs, 2 B. Monroe, 345, 347. (9) Freeman v. Batman, 3 Iredell's Equity, 81. (10) Hiatt !•. Wade, 8 Iredell, 340. (11) Sterry v. Arden, 1 Johnson's Chancery, 261. 48 VOLUNTARY CONVEYANCES. purchaser for valuable consideration, with notice; the decision in the case was confirmed in the Court of Errors on another ground, but Spencer, J., held there, that a fair voluntary deed is not void in law against a subsequent pur- chaser with notice. (1) A mortgagee is & purcliaser within the statute 27 Eliz. c. 5.(2) One who purchases from the grantor's executor or administrator, is a purchaser to avoid a previous conveyance actually fraudulent. (.3) One who buys at a judicial sale by a creditor, is not a purchaser under the statute (though the contrary is suggested in Wadsworth v. Havens, 3 Wendell, 411 ; and see Lessee of Heisler V. Fortner, 2 Binney, 40, 46 ;) but has all the rights which the creditor had for avoiding a fraudulent conveyance. (4) An assignee in trust for creditors is not a hona fide purchaser for a valuable consideration without notice, under this statute, however he may fall within that description under other statutes for other purposes, and has no other rights than the assignor had. (5) Nor does a husband acquiring an estate merely by marriage take as a purchaser. (6) Whether one who receives a conveyance of property in payment of an ante- cedmit debt is a purchaser entitled to protection under the statute is not quite clear : in New York and Massachusetts, it is said that one who purchases in consideration of indebtedness is not entitled to protection, unless he has incurred some new responsibility on the credit of the property, or has given up some security or parted with some right or advantage on the faith of receiving a perfect title; (7) these decisions do not distinguish very clearly between a conveyance as collateral security, and a conveyance in satisfaction and discharge of a debt : but there is nothing in them conflicting with the distinction established in some analogous cases, that the discharge of a debt or of any security or right respecting it, is a valuable consideration, but that the adding of security to a debt is voluntary : see the cases on promissory notes, in the note to Swift V. Tyson. In terms, the statute 27 Elizabeth, c. 4, applies only to land, and in England and in many of the states, the construction goes no further; (8) but in Uudaal V. Wilder, 4 M'Gord, 295, it was held that upon common law principles, a (1) Sterry v, Arden, 12 Jolinson, 536, 555 ; and to ttG same effect in Sanger v. Eastwood, 19 Wendell, 514. (2) Lancaster v, Dolan, 1 Rawle, 231, 244; Presbyterian corporation v. Wallace and other?, 3 Id. 130 ; Lewis v. Love's Heirs, 2 B Monroe, 345, 317; Ledyard v. Butler, 9 Paige, 132, 137 ; Clappi). Leatherbeo, 18 Pickering, 131, 138. (3) Clapp V. Leatherbee, 18 Pickering, 131, 133. (4) Jackson v. Ham, 15 Johnson, 261 ; Jones v, Crawford, 1 M'MuUan, 373; Ridgeway v. Underwood, 4 Washington, 129, 137; see Read's Appeal, 1 Harris, 576. (5) Seavingti. Binkerhoff, 5 Johnson's Chancery, 329, 331 ; Twelves i>. Williams, 3 Whar- ton, 485; Knowles v. Lord, 4 Id. 500 ; Luckenback v. Brickenstein, 5 Watts &, Sergeant, 146, 149 ; In re Dohner's Assignees, 1 Barr, 101, 104 ; Pierce v. M'Keehan, 3 Id. 136, 140 ; Holland V. Craft, 20 Pickering, 321, 338; Willis et al. v. Henderson, 4 Seammon, 14, 19 ; Prow & Fur- guson !). Downman, 11 Alabama, 881, 885 ; Walker et al. o. Miller et. al.. Id. 1068, 1084. (6) Richards v. Lewis, 11 Com. Bench, (73 Ecs.) 1057. (7) Root V. French, 13 Wendell, 670; Dickerson v. Tillinghast, 4 Paige, 215, 221; Pudgett r. Lawrence, 10 Id., 171, 180; Clark u. Flint, 2 Pickering, 231, 243; Morse v. Godfrey et al., 3 Story, 365, 390. (8) Jones v. Crouohor and others, 1 Simons & Stuart, 315 ; Bohn v. Headley, 7 Harris & Johnson, 257, 271; Seawall i;. GlidJen, 1 Judges' Alabama, 53, 61. SEXTON V. WHEATON: SALMON V. BENNETT. 49 fraudulent conveyance of chattels might be avoided by a subsequent bona fide purchaser for valuable consideration without notice. While it is agreed that a conveyance actually fraudulent is void against sub- sequent purchasers, it is held in Foster v. Walton, 5 Watts, 378 ; Douglas v. Dunlap and others, 10 Ohio, 162 ; Sanger v. Eastwood, 19 Wendell, 514 ; and in Bank of Alexandria v. Patton, &o., 1 Robinson's Virginia, 500, 539, that the fraud must be intended specifically against purchasers, and that they cannot avoid a conveyance intended to defraud creditors only ; but the contrary is held in Ricker v. Ham, et al., 14 Massachusetts, 137 ; Clapp v. Leatherbee, 18 Pickering, 131, 138; and Wadsworth v. Havens, 3 Wendell, 411 ; and in Hudnal V. Wilder, 4 McCord, 295, 303, it was thought to be clear, in respect to such fraud as consists in retaining possession of chattels sold, that a volun- tary deed which is seen to be intended to secure property from the reach of creditors, may be considered as fraudulent against a subsequent purchaser ; for the fact that a fraud was originally intended, taken in connexion with the sub- sequent sale, would very well authorize the inference that no change of pro- perty was intended to take place, and that the right still continued in Ihe grantors. But probably this apparent confiict of opinions is to be reconciled upon the distinction, noted above, as taken in Clark v. French, 23 Maine, 221. There can be no reasonable doubt that a conveyance which is fraudulent again.^t creditors upon the ground of its being fictitious, or without consideration, and otherwise presumably for the benefit of the grantor, is fraudulent against sub- sequent purchasers ; but an obsolute conveyance on full consideration, which is fraudulent against creditors only, because actually intended to hinder and delay them, would not be void against purchasers. In examining what conveyances are on valuable consideration, under the statutes, 13 & 27 Elizabeth, it must be observed that in respect to the con- sideration of conveyances, there is an important difference between law and equity : at law, a security or conveyance is whnfly good or wholly bad ;(l) but in equity when a security or conveyance is set aside as constructively fraudu- lent, it is upheld, in favour of one not guilty of any actual fraud, to the extent of the actual consideration, and is vacated only as to the excess. (2) Accord- ingly, if there be any substantial and not merely a nominal consideration, the whole conveyance is valid at law, without regard to the adequacy of the con- sideration, unless the inadequacy be so gross as to raise a presumption of actual fraud; (3) or the conveyance, as to the excess, be construed to be conclusively fraudulent in law ;(4) but in equity, when the property is of greater value than the consideration, the conveyance may be impeached as being voluntary to a partial extent, and, if not actually fraudulent, will be sustained to the extent of the consideration, and vacated as to the residue, or the grantee decreed to be as to such residue a trustee for creditors ;(5) but if actually fraudulent, (1) Holland ». Craft, 20 Pickering, 321, 338. (2) M'Meekin ». Edmonds and wife and others, 1 Hill's Chancery, 2S8, 294 ; Anderson et al. V. Fuller et al., 1 M'Mullen's Equity, 27, 33. (3) Magniac & Co. v. Thompson, Baldwin, 344, 361. (4) Saunders ti. Ferrell, 1 Iredell's Law, 97, 102. (5) Wright & Cook v. Stanard, 2 Brockenbrough, 312, 314; Hopkirk v. Randolph et al., Id. 133, 150; Boyd v. Dunlap, 1 Johnson's Chancery, 478; Wikes ti. Clarke, 8 Paige, 161, 172. VOL. I. — 4 50 VOLaNTARY CONVEYANCES. it is in equity set aside entirely. (1) At law, a conveyance is voluntary where nothing valuable, or only a nominal value, is received. The ordinary consider- ation of one dollar, or five shillings or ten dollars, is merely nominal, and though it is sufficient to pass the title under the statute of uses, a deed upon such a consideration, is deemed voluntary. (2) But if anything of substantial, legal value passes or is secured, the conveyance is not voluntary; and, without extrinsic evidence of fraud, cannot be avoided at law, unless the disproportion of value is so gross as to prove a fraudulent intent : a bond for purchase-money, or the payment of an annuity, or the reservation of a rent, or onerous covenants on the part of the grantee, constitute a valuable consideration, and prevent the conveyance from being voluntary and fraudulent in law. (3) A mortgage, to secure the debt of another, is not voluntary ;(4) a conveyance by a father to his sons, in consideration of their paying his debts, was held not to be volun- tary, but to be valid, in Pafteson v. Steioart, 6 Watts & Sergeant, 72, where it appeared that the sons were performing their engagement, but was pronounced voluntary and fraudulent, in Waller v. Mills, 3 Devereux, 515, where the son was insolvent ; [as was a conveyance where the bond was to support the grantor for the rest of his life, the circumstances being suspicious, in Tyner V. Somerville, 1 Carter, 176] ; see Aeale v. Ilagtlwrjie, 3 Bland, 551, 582. Payments under a voluntary obligation are not regarded as voluntary. (5) Marriage is a valuable consideration, as efleotive as money; (6) indeed, it is, in contemplation of the law, a consideration of the highest value, and from motives of the soundest policy is upheld with a steady resolution ;(7) an ante-nuptial settlement, therefore, in consideration of marriage, is valid against creditors, though the grantor be in debt ;(8) and even if the settlement be fraudulent on the part of the grantor, yet if there be no fraud upon the other side, the settle- ment is valid ;(9) but it seems that the reasonahleness of the settlement, as to amount, is open to examination, upon a question of fraudulent intent in all the parties ; and accordingly in Davidson & Simpson v. Grates, Riley's Chancery, 219, 236, 238, it was decided, after careful inquiry, that the settlement of the xoliole of one's fortune, in consideration of marriage, was so unreasonable as to be conclusive of fraud, the fortune in that case being very large, and the settlor much indebted. In like manner, a post-nuptial settlement in pursuance of a (1) Sands and others v. Codwise and others, 4 Johnson, 636, 59S; Harris et al. v. Sumner, 2 Pickering, 129, 137. (2) Ward &o. v. Trotter, . Withey, Id. 326, 329 ; Tappan v. Evans, 11 New Hampshire, 312, 327. (1) Botsford V. Beers, 11 Connecticut, 370, 365 ; Thurmond and others v. Reese, 3 Kelly, 449 ; Stephens v. Beal, Id. 319. (2) Edmeston v. Lyde, 1 Paige, 637; Corning w. White, 2 Id. 667; Parnham v. Campbell, 10 Id. 598, 601; Weed v. Pierce, 9 Cowen, 722, 728; U. S. Bank v. Burke, 4 Blackford, 111, 14.3 ; Miers & Coulson v. The 2Janesville and Maysville Turnpike Co., 13 Ohio, 197. (3) Blake v. Bigelow and others, 5 Georgia, 437, 439, (4) Donelson's Adm'rs v. Posey, et al., 13 Alabrma, 752, 762. (5) Swift & Nichols ». Holdridge and others, 10 Ohio, 230; Simpson v. Simpson et al?., 7 Humphreys, 275, 277 ; Tubb u Williams et al.. Id. 367, 371. (6) Blackhouse's administrators c. Jett's administrators et al., 1 Brockenbrough, 501, 610, 616. (7) Kipp V. Hanna, 2 Bland, 26, 36; Sands and others v. Codwise and others, 4 Johnson, 636, 600. (8) Fripp ». Talbird,l Hill's Chancery, 142, 143. (9) Strike v. M'Donald A Son, 2 Harris & Gill, 193, 220, 224. 56 ASSIGNMENTS FOR THE BENEFIT OF CREDITOES. OF VOLUNTARY ASSIGNMENTS TO TRUSTEES FOR THE BENEFIT OF CREDITORS. THOMAS V. JENKS. PARRY V. THE SAME. In the Supreme Court of Pennsylvania. PHILADELPHIA, APRIL 16, 1835. [reported, 5 KAWLE, 221-227.] A voluntary assignment ly an insolvent, in trust for Ms creditors, which contains no provisions tending fraudulently to hinder and delay them, is valid : but the reservation of any benefit or advantage to the debtor renders the assignment fraudulent and void. An assignment by partners of the partnership effects, and not of their separate property also, if it contain a condition that the creditors shall release their claims against the assignors, individually, and as co-partners, is fraudulent and void. This was an appeal by Joseph S. Sloan, assignee of Jenks and Com- pany, from the decision of the Court of Common Pleas of Bucks County, awarding to the plaintiffs the money in the hands of the sheriff^, made under executions against Jenks and Company. By indenture, dated the seventh day of February, A. D., 1833, Wil- liam P. Jenks and William Maris, trading as William P- Jenks & Co-, made an assignment to Sloan, of all the machinery, stock, goods, chat- tels, debts, moneys, effects, messuages, lands and tenements, book-debts, accounts, claims, and all other things whatsoever of the said William P- Jenks & Co., as well real as personal, in trust to pay creditors in the manner therein set forth. The assignment contained the following proviso : provided always, nevertheless, that no creditor shall be entitled to any benefit under the assignment, who shall not, on or before the sixth day of March next, at 12 o'clock at noon on that day, in due form of law execute a full and sufficient release of and from their respective claims to the said Wil- liam p. Jenks and William Maris, individually and as co-partners. Fourthly, to restore and repay to the said William P- Jenks and William Maris, the residue of the estate and effects, or the proceeds thereof, re- maining in the hands of the said Joseph S. Sloan, after payment and THOMAS V. JENKS: GROVEE V. WAKEMAN. 57 discharge and indemnity of the aforesaid claims in the manner and order aforesaid. Releases were accordingly signed by a number of the creditors on the fifth day of March, 1833. On the 8th of April, 1833, Thomas Parry issued writs of fi. fa. On the eleventh day of April, 1833, the sheriiF levied under the plaintiffs' executions on the property, the right to the proceeds of which was the subject of the present controversy. Sloan issued a foreign attachment against William P. Jenks & Co., and directed the sheriff to attach the machinery included in the assignment. Sharswood, (J. B. Ingersoll was with him) for the appellant. The first question is, whether an assignment of partnership property for the benefit of partnership creditors, and stipulating for a general release, is fer se fraudulent ? It is to be taken for granted, that this transaction was fair in fact, as nothing appears to the contrary. The right of a debtor in failing circumstances to prefer one creditor to another cannot now be doubted. (1) Nor can it be doubted that he may make a special assignment of part of his property for the benefit of particular creditors ; nor is the mode of designation material. The case of Lewkner v. Freeman, Finch, 105, was a special assignment to pay scheduled debts and such other debts as the debtor within a certain time should appoint. The stipulation for a release has been recognised as valid in general assignments. Lippincott v. Barker, 2 Binn. 174. Pierpont v. Graham, 4 Wash. C. C. Rep. 232. It is worthy of remark that in Pierpont v. Graham, the assignment was, as in our case, an assignment of partnership property only, and stipulated for a general release. Sheepshanks v. Cohen, (2) appears also to have been an assign- ment of that character. But Judge Story has expressly decided this point in our favour in Halsey v. Whitney and al.,(3) and in a very lucid and able opinion examined and sifted most of the cases. The only thing to the contrary that can be found in any of the books is a mere obiter dictum, and a very loose one, of Chancellor Kent,(4) which turned upon an entirely different point, and where, though he viewed such a stipulation as unreasonable and strong evidence of fraud in fact, he does not say it is fraud per se. (1 ) Hendricks v. RobiDSon, 2 Johns. Ch. Rsp., 283 ; Wilt v. Franklin, 1 Binney, 510. (2) U Serg. . Stewart, 8 Gill, 473; M'Culloch et al. i. Somerville, 8 Leigh, 416, 426 ; Phippen u. Durham, 8 Grattan, 464; Niolon t;. Douglaf-g and others, 2 Hill's Chiincery, 443, 446; Smith, Wright & Co. v. C. C. Camphell & Co., Rice, 353, 366 ; Moore v. Collins 3 Deve- reux, 126, 134 ; Pearson & Anderson, &o. v. Rookhill & Co., 4 B. Monroe, 296, 297; Hindman V. Dill & Co., 11 Alabama, 689; Hall et al. v. Denison & Tr., 17 Vermont, 311, 317 ; Cross v. Bryant et al., 2 Scammon, 37, 43. (2) Catlin v. Eagle Bank, 6 Connecticut, 233, 242 ; Savings Bank v. Bates, 8 Id. 606, 612; The State of Maryland v. The Bank of Maryland, 6 Gill & Johnson, 206, 219 ; Bank V. S. et VOL. I. — 5 66 ASSIGNMENTS FOR THE BENEFIT OF CBEDITOES. conclusive weight of authority, the soundness of the principle, in regard to pre- ferences, as applied to corporations, is doubted upon weighty reasons, in Robins et al V. Emhry, et al ,\ Smedes & Marshall's Chancery, 208, 259, 265 : and a general assignment by a bank, though admitted to be valid, was decided in The State V. The Real Estate Bank, 5 Pike, 596, 607, to be a good cause of for- feiture of its charter. An assignment lona fiile, for the security of a future or contingent liability, as that of a surety or endorser, is also within the protection of the law ;(1) but as to indemnifying special bail, see Wliallon v. Scott, 10 Watts, 237, 244. Where a conveyance is made directly to creditors in consideration of indebt- edness, their assent (actual, or to be presumed), to the conveyance is necessary; f"2) but where the conveyance is to a trustee for their benefit, their assent, where there is nothing fraudulent in the deed, is not necessary (3) The cases in Massachusetts, which required the assent of a creditor to render an assignment valid as against him, (4) were grounded upon the difl&culty formerly felt re- specting the power of the courts in that state, to compel the trustee to execute the trust ;(5) but since the act of 1836, o. 238, which gives the creditors a remedy against the trustee, the assent of creditors is no longer necessary in Massachusetts. (6) By an acceptance of an assignment for the benefit of creditors, the assignee becomes a trustee for the creditors, and chancery will compel the execution of the trust for their benefit. (7) When a, creditor goes into equity to seek the al. V. Huth, 4 B. Monroe, 423, 429 ; Arthur v. The Commercial and Railroad Bank of Vicks- hurg, 9 Smedes & Marshall, .S96, 429 ; Diina v. The Bank of the United States, 6 Watts A Sergeant, 224, 243; De Ruyter v. St. Peter's Church, 3 Comstock, 238, 242; 3 Barbour's Chan- cery, 119; Hopkins et als. r. The Grallatin Turnpike Co., 4 Humphreys, 403, 410 ; Conway et al. o. Ex parte, 4 Pike, 305, 353; approved in Ringo v. R. B. Bank, 8 Eng., 675 ; (13 Ark.) Tower v. Bank of River Raisin, 2 Douglass, 530, 553; and see opinions of Mr. Kent, Id. app. xii., and in 6 Humphreys, 532. (1) Stephens et al. «. Bell, 6 Massachusetts, 339; Halsey et al. v. Whitney et al., 4 Mason 207, 231 ; Canal Bank v. Cox and Tr., 6 Greenleaf, 396, 399 ; Hendricks v. Robinson, 2 John- son's Chancery, 2s4, 3U6, 308 ; Miller v. Howry, 3 Penrose &, Watts, 374, 381 ; Vernon Ac. a. Morton A Smith, Ac, 8 Dana, 247, 253, 266; Duvall and others %,. Riiisin and others, 7 Mis- souri, 449, 450 ; M'Whorter v. Wright, Nichols A Co., 5 Georgia, 555 ; see Allen et al. c Montgomery R. R. Co., et al., 11 Alabama, 438, 452. (2) See Tompkins v. Wheeler, 16 Peters, 106, 119. (3) NicoU V. Mumford, 4 Johnson's Chancery, 523, 529 ; Cunningham v. Freeborn, 11 AVen- dell, 241, 249; Halsey et al. v. Whitney et al., 4 Mason, 207, 214; Houston v. Nowland, 7 Gill and Johnson, 480, 492 ; Bank U. S. et al. ■«. Huth, 4 B. Monroe, 423, 437 ; Smith v. Leavitts, 10 Alabama, 93, 104; Kinnard t'. Thompson, 12 Id. 487, 491 ; The Governor, use, Ac. ». Camp- bell et als. 17 Id. 566, 669; Ranken ti. Duryee, 21 Id., 392 ; See Klapp's Assignees v. Skirk, 1 Harris, 589, 592 ; And see Ilarland i>. Biuks, 15 Adolph A Ellis, N. S. (69 E. C. L., 721.) note. (4) Russell V. Woodward, 10 Pickering, 408. (5) Stephens et al. .. Bell, 6 Massachusetts, 330, 342; Widgery et al. v. Haskell, 5 Id., 144, 154. (6) Shattack ,■. Freeman, 1 Metoalf, 10. (7) Moses V. Murgatroyd, 1 Johnson's Chancery, 119, 129; Shepherd v. M'Evers, 4 Id, 136 ; Nicol V. Mumford, Id. 623, 529 ; Ward et al. o. Lewis et al., 4 Pickering, 518, 523 ; New England Bunk V, Lewis et al., 8 Id. 113, 118; Pingree n. Comstock, 18 Id. 46, 50; Weir and another v. Tannehille and others, 2 Yerger, 57 ; Robertson et al. i.. Sublett et al., 6 Humphreys, 313 ; Pearson A Anderson, Ac. i^. Rockhill et al., 4 B. Monroe, 296, 303; see Hulsc, Montellius A Fuller i>. S. Wright, AVright, 61, 64. THOMAS V. JENKS: GEOVEE V. WAKEMAN. 67 benefit of an assignment, he must either make the other creditors parties, or must file the bill in behalf of others who may choose to come iu, as well as of himself; but when he desires to set aside an assignment, he files a bill in his own name against the assignor and assignee alone without making the other creditors. parties. (1) * When the trustee is not present, his assent may be presumed, for the pur- pose of giving operation to the deed; and the deed of assignment will take effect, as a transfer of the property, as against creditors, from the time of the first delivery by the grantor, subject to be defeated by the dissent or refusal of the trustee. (2) In like manner, a letter assigning personal property to an ab- sent creditor for the indemnity of himself, or of himself and others, and sent by mail, takes effect from its date. (3) But where a deed was put into the hands of the trustee, and he hesitated and delayed to accept it, but subse- quently, and after an execution had been levied, claimed the property under it, it was held that the deed did not operate against the execution, for there was a clear non-acceptance in fact during the period of delay. (4) An assignment in trust for creditors, which by its provisions tends to hinder or delay creditors, is fraudulent and void in law;(5) and this may occur in various ways. [The assigning of property which on the face of the assignment is more than the assignee is empowered to distribute. (6)] Postponing to an unreasonable time, the period of sale and payment will avoid the assignment, and the reasonableness of the delay depends on the character of the property and the eiruumstances of the case;(7) an interval of three years before any payment is made, is unreasonably long; (8) three months, in the case of a growing crop or fattening stock, is not unreasonable ; (9) a year's suspension of proceedings, where the expressed object of the conveyance was to prevent a sacrifice of the property, was decided to be fraudulent in Ward, &c. v. Trailer, &€., 3 Monroe, 1 : and see also, Johnson v. Thweatt, 18 Alabama 745; but in Pennsylvania, upon an analogy to the statutory period allowed to trustees for the settlement of the trust estate, a year is declared to be the proper limit, be- (1) Wakeman v. GroTer, 4 Paige, 24, 33; Russell i;. Lasher, 4 Barbour's Supreme Court, 233. 237. (2) Shipworth Ex'r, v. Cunningham, Ac., 8 Leigh, 272, 281 ; Wilt v. Franklin, 1 Binney, 502, 51S; M'Kinney v. Ehoads, 5 Watts, 343 j Read i;. Robbinson, 6 Watts &, Sergeant, 329, see Moore v. Collins, 3 Devereux, 126, 133, and Ward et al. v. Lewis et al., 4 Pickering, 618, 519, 520 ; and Merrills v. Swift, 18 Connecticut, 257, 262. (3) Dargan v. Richardson, 1 Cheves Law, 197; Shubar & Bunting v. Winding, Id. 218. (4) Crosby v. Hillyer, 24 Wendell, 280. (6) See Sheldon v. Dodge, 4 Donio, 218, 225; Bodley et al, v. Goodrich, 7 Howard, 277 ; Hart A M'Farland et al., 1 Harris, 185. (6) Hooper v. Tuckerman, 3 Sandford, 316. (7) Hafner v. Irwin, 1 Iredell's Law, 490,496; Hardy v. Skinner, 9 Id., 191 ; Hardy i-. Simpson, 13 Id. 138; Rundlett v. Dole and Trustee, 10 New Hampshire, 458, 465 ; Grover i'. Wakeman, 11 Wendell, 187, 207; Bennett et als. v. Union Bank, et als., 6 Humphreys, 612, 616 ; Robins et al. v. Embry et al., 1 Smedes & Marshall's Chancery, 208, 271 ; The Farmers' Bank et al. v. Douglass et al., 11 Smedes & Manhall, 472, 539; Arthur v. C. & R. Bank of Vicksburg, 9 Id., 396, 433 ; Henderson v. Downing, 24 Mississippi, 115 ; See Browning & Hart, 6 Bnrbour's S. Ct., 91, 93. (8) Adlum t). Yard, 1 Rawle, 163, 171 ; Mitchell v. Beal, 8 Yerger, 134, 141. (9) Christopher i-. Covington i Smith, 2 B. Monroe, 357, 358, 368. 68 ASSIGNMENTS FOR THE BENEFIT OF CBEDITOES. yond which a postponement of the trustee's accountability will be fraudulent. (1) [By the New York decisions, a trust to sell on credit, avoids the deed, Barney V. Griffin, 2 Comstook 366 ; Nicholson v. Leavitt, 2 Selder 510, overruling S. C, 4 Sandford, 288,(2) and in California, where the case of Barney v. GriiBn was generally, though not to the full extent of its reasoning, approved, it is pre- sumptive, but not conclusive, evidence of fraud. (3) But it is otherwise in Ten- nessee,(4) and in Alabama ;(5) in both of which States a trust for sale or credit is presumably good. What words, besides express ones, make the trust one for credit, is of course a question for construction. A power to convert the assigned estate into 'money " within such convenient time as to the assignees should seem meet," has been held on authority to sell on credit ;(6) but "to sell and dispose of the property for the interest of the parties concerned, and con- vert the same into money," is not a trust to sell on credit, and is good. (7) The trust may authorize a sale either public or private. (8) The dicta of Rogers, J. in 7th Penna. State 88, were dicta merely, and were never law in Pennsylva- nia. A trust that the property shall not be sold on credit, does not avoid the assignment, but is a bad feature, as evidencing fraud in fact.](9) The reser- ving of a power of revocation; (10) and the introduction of such limitations and contingencies as give the debtor a control of the property, and enable him to defeat the conveyanee,(ll) also render the assignment fraudulent. Preferring a fictitious debt would have the same effect; (12) or a clause exempting the as. signee from such duties as the law affixes to the office of an assignee ; such a clause e. g. as that the assignee should not be liable for any loss unless it hap- pened by his own gross negligence and vrilful misfeasance. (13) [But a clause which exempted the trustees from liability " for the acts, neglects, or defaults of any attorney or agent they may appoint,'' and from any misfortune, loss, or damage which may happen, without their wilful default, was held not to be void, the provision being followed by an express covenant on the part of the (1) Sheerer v. Lautzerhoizer, 6 Watts, 643, 549; Dana v. The Bank of the United States, 5 Watts & Sergeant, 224, 251. See Hindman v. Dill & Co., 11 Alabama, 689 ; Lockhartti. Wyatt, 10 Id., 231 ; Hodge v. Wyatt & Houston, Id., 271; Abercrombie v. Bradford, 16 Alabama, 560. (2) The terms in the deed in this case were, *' Shall in such manner or at such time or time', either at public or private sale, and for cash or upon credit, or partly for cash and partly upon credit, and by and under such terms and conditions as he shall deem reasonable and proper ab.solutely sell, &g.'' The estate, however, was scattered about in several states, and consisted, among other things, of real estate, and large and involved mercantile claims. (3) Billings v. Billings, 1 California, 113. (4) Grinell v. Adams, 11 Humphreys, 85. (5) Shakelford v. P. and M. Bank of Mobile, 22 Alabama; Abercrombie v. Bradford, 16 Id., 560. (6) Woodburn v. Mosher, 9 Barbour, 265 ; Murphy v. Bell, 8 Howard's Practice Cases, 468. (7) Whitney v. Krows, 11 Barbour, 200; Kellogg ti. Slaughton, 1 Kernan, 302. (8) Bellows V. Partridge, 19 Barbour, 176. (9) 11 Barbour, 240. (10) Kiggs V. Murray, 2 Johnson's Chancery, 566, 576, not overruled in S. C. on error, 15 Johnson, 571, aad approved in Grover v. Wakeman, 11 Wendell, 187, 196. (11) WhaUon v. Scott, 10 Watts, 237, 244. (12) Webb V. Daggett, 2 Barbour 10. See also Planck o. Shermerhorn, 3 Barbour's Chan- cery, 644. (13) Litchfield 1). White, 3 Sanford, 647. THOMAS V. JENKS: GEOVEE V. WAKEMAIir. 69 trustees " to accept the trust and to act faithfully and justly in its execu- tion. (1) In Litchfield v. White, the assignee, while accepting the trust, coven- anted to act according " to the best of his ability." The cases are not quite consistent. In some cases such clauses seem to have passed without no- tice.] (2) It has been held also, that the selection of an assignee, who from desperate bodily illness, or mental infirmity, or distance from the place, is incapable of performing the duties of a trustee, evinces such a disposition to keep the prop- erty within the control and disposition of the assignor, or at least to render it unprofitable to the creditors, as will make the assignment fraudulent and void;(3) and the selection of an insolvent person, or one not of sufiicient char- acter and pecuniary ability to afford assurance that the trust will be properly administered, \s prima /ocie evidence of fraud. (4) It is a general principle also, that stipulations tending to coerce the creditors unreasonably, to the prejudice of their just claims and the advantage of the assignor, render the assignment fraudulent. A power given to the assignee to compound with the creditors,(5) or to either the assignor or assignee, subse- quently to declare or alter preferences, renders the deed fraudulent ;(6) [but a power given to the assignee, at his discretion, to " compouad, compromise and settle" the claims assigned does not avoid it. (7) Nor an authority generally to adopt such measures in relation to the settlement of the estate, as in the judg- mentof the assignee, will promote its interest.(8) Not even a power to the trus- tee to mortgage the estate conveyed, if he should deem it necessary. ](9) But the circumstance which most usually renders these assignments fraudu- lent, is the reservation of a use or benefit to the grantor. It is a settled prin- ciple, that a reservation to the grantor or his family, or any one not a creditor, of any trust, profit or benefit out of the property conveyed, or of a credit on account of any part of it, is a fraud in law, and voids the whole assignment. (10) Accordingly, a stipulation for a maintenance for the grantor or his family, or that (1) Jacobs ti. Allen, 18 Barbour, 549. (2) Conklin ti. Carson, 11 Illinois, 603; Kettlewell v. Stewart, 8 Gill, 473. (3) Cram v. Mitchell, 1 Sandford, 261; Currie v. Hart, 2 Id. 363, 356. (4) Eeede i\ Emery, 8 Paige, 417; Connah v. Sedgwick, 1 Barbour, 211, 214. (5) Wakeman ti. Grover, 4 Paige, 24, 41, S. C. on error, 11 Wendell, 187, 203; Hudson et al. V. Maze, 3 Scammon, 679, 683. (6) Barnum v. Hempstead, 7 Paige, 669, 672; Boardman t,. Halliday, 10 Id., 224,228; Strong r. Skinner, 4 Barbour's Supreme Court, 547, 569; Averill v. Loucks, 6 Id., 471, 476 ; Sheldon v. Dodge, 4 Denio, 218, 222; Gazzam v. Poyntz, 4 Alabama, 374, 380; Mitchell v. Stiles, 1 Harris, 306. (7) Bellows V. Patridge, 19 Barbour, 178. (8) Mann «, Witbeck, 18 Barbour, 389. (9) Beatty «. Davis, 9 Gill, 213. (10) Mackio &, Cairns, 5 Cowen, 549; Jackson f. Parker, 9 Id., 73, 86; Mead e. Phillips and others, 1 Sandford, 83, 86 ; Goodrich o. Downs, 6 Hill's N. Y., 438, 440 ; Kissam t. Edmundson et al , 1 Iredell's Equity, 180 ; Anderson et al. „. Fuller et al., 1 McMuUan's Equity, 27 ; M'AUister v. Marshall, 6 Binney, 338, 344; fhaffer v. Watkins, 7 Watts & Sergeant, 219. 227; Faunce v. Lesley, 6 Barr, 121, 123 ; Peacock v. Tompkins, Meigs, 317, 328 ; Austin v. Johnson, 1 Humphreys, 191, 192; Leadman v. Harris, 3 Devereux, 144; Byrd o. Bradley, 2 B. Monroe, 239. 70 ASSIGNMENTS FOE THE BENEFIT OF CREDITOES. the grantor sball be employed as agent or manager at a fixed salary, (1) or a reservation of a specific sum of money, or of so much a year to the grantor. ('2) Even "so much as I am by law allowed to retain from execution," avoids the deed in Tennessee, though not in Pennsylvania. (3) But courts have hesitated in applying this as a rule in all oases, without regard to circumstances : it has been held (4) that a reservation of "means of paying his small debts under fifty dollars, and ordinary family expenses," and(5) of three hundred and fifty dollars "to his individual use and dispo.sition, for the purpose of paying some small claims due from him, of high honorary obligation, which are not now liquidated or specifically ascertained," and that(6) a reservation of six months' possession, did not, under the circumstances, of themselves, avoid the deed. It seems also that there is no objection to the trustees, of their own accord, employing the debtor as agent or manager at a reasonable salary ;(7) nor to a clause in the deed giving them that power if they think fit.(H) See remarks in Filler v. Maitland 5 Watts & Sergeant, 307, 310 ; and also in Nichol- son V. Leavitt, 4 Sandford, 270 ; and Mvlford v. Shiir/c, 28 Penna State, 473. The reservation to the grantor, of the surplus after payment of all the cred- itors, is not fraudulent ; for it is no more than the law would imply (9) An express reservation of the surplus upon an assignment of all or nearly all the debtor's property, to or for a part of his creditors, as been decided(lO) to be fraudulent, whether in fact there was any surplus or not; see Doremus v. Lewis, 8 Barbour's S. Ct. 124 ; and in Dana, AJni'r v. Lull, 17 Vermont, 390, it was decided, that an assignment of all the debtor's property for the benefit of a portion of his creditors, without a provision that the surplus shall be distribu- ted among the creditors, is fraudulent, by reason of the resulting trust of the surplus, and this, even if it turns out that there is no surplus. [But an assign- ment for the equal benefit of all creditors equally in proportion to the amount of their debts, until they are fully paid and satisfied and to return the surplus to the assignor is good. (11) As is also such reservations where some debts were (1) Johnson's heirs v. Haryey, 2 Penrose & Watts, 82, 92; M'Clurg v. Leeky, 3 Id., 83, 91 ; Henderson v. Downing, 24, Missis. 117. (2) Harris et al. v. Sumner, 2 Pickering, 129 ; Richards v, Hazzard, 1 Stewart & Porter, 139, 156; Mackie & Cairns, 5 Cowen, 549, considered in Butler v. Van Wyck, 1 Hill's N. Y., 463, and Goodrich v. Downs, 6 Id., 440, as overruling contrary opinions in Riggs v. Murray, 2 John- son's Chancery, 565, and S. C. on error, 15 Johnson, 571, and of course those in Austin v. Bell, 20 Id., 442, 447, grounded upon it. (3) Sugg V. Tillman, 1 Swan, 210; but contra Mulford v. Shark, 28 Penna State, 473. (4) Canal Bank v. Cox and Tr., 6 Greenleaf, 395, 399. (6) Skipwith's Ex'or v. Cunningham, Ac., 8 Leigh, 272, 273, 292. (6) Kevans et als. v. Branch, 1 Grattan, 275. (7) Shattuck v. Freeman, 1 Metcalf, 10, 14; Vernon, Ac. v. Morton & Smith, ic, 8 Dana, 247, 252 ; Pearson & Anderson, &e. v. Rockhill & Co., 4 B. Monroe, 296, 301. (8) Planters' and Merchants' Bank of Mobile v. Clarke, 7 Alabama, 765, 770 ; Janes v. Whit- bread, 11 C. B., 406, though this case would not, perhaps, in its entire extent, be followed in America. (9) Hall etal. v. Denison et tr., 17 Vermont, 311, 318. (10) Snydam A Jackson v. Martin, &o., Wright, 698; Goodrich v. Downs, 6 Hill's N. Y,, 438 ; Strong V. Skinner, 4 Barbour's Supreme Court, 547, 559 ; Cole v. Jessup, 2 Id., 307 ; and Grif- fin V. Barney, 2 Comstook, 365, 371 ; dicta in Leilch v. Hollesder, 4 Id., 214. (11) Ely V. Cook, 18 Barbour, 612. THOMAS V. JEXKS: GKOVEE V. WAKEMAN. 71 preferred, provided the surplus to be returned was that remaining after pny- ment of all debts,(l)] and in Rahn AI' Elrath, 6 Watts, 151, 155, an express reservation of the surplus was held not to be fraudulent, on the ground that the delay of other creditors would be no longer than might be necessary to turn the property into money, unless where the amount of property assigned was so excessive as to create a presumption of fraud in fact ;(2) a secret reservation, however, of the surplus upon a conveyance absolute upon its face, is admitted to be a fraud. (3) In Hindman v. DiU& Co., 11 Alabama, 6h9, a reservation to the grantor in the deed of assignment, of the surplus after payment of the debt for which the assignment was made, was decided not to be fraudulent. It was declared to be not the reservation of a benefit under the assignment, but rather a declaration in terms of what would be the legal effect of the deed, without such a clause : and the decision in Goodrich v. Doivns, 6 Hill's N. Y. 438, was thought to be controlled by the particular statute of that state, which declares a deed void if it reserves a trust for the use of the person making it. A similar decision was made in Austin v. Johnson, 7 Humphreys, 191, where a variety of articles of unascertained value were conveyed to a trustee for the security of one creditor, and at the conclusion of the deed it was stipulated, that after paying the debt specified, any balance that might remain should be paid to the vendor or his order. This, it was contended, rendered the assignment void. "If the property conveyed were obviously of greater amount than was necessary to secure the debt provided for, this objection might have much weight," said the court; "but it does not so appear, and the stipulation only amounts to what the vendor would have been entitled to without it, viz., to re- ceive any small balance that might be left after paying the debt. Why should he not be permitted to do this ? no other creditor could get it without bis judg- ment and by bill or garnishment. And if the design in conveying the property were not actually fraudulent, we are not warranted in presuming, that any bal- ance left, would not be fairly appropriated by the vendor." Whether a condition of release will avoid an assignment, as falling within the notion of a reserved benefit, has been disputed. An assignment to a trustee of part of the debtor's property, upon condition of a full release, is cer- tainly fraudulent; (4) (except perhaps in Massachusetts ; Nostrand v. Atwood, 19 Pickering, 281, 285, 286;) and an assignment by partners which does not include the individual property of both, as well as the joint property, and is upon a condition of release from all liabilities, individual and joint, is fraudu- lent, as was held in the principal case, Thomas v. Jenks, and apparently in Wyles V. Beals, 1 Gray, 236 ; and this even where it does not appear that the partner whose separate property is not transferred, in fact posset^sed any;(5) the dicta in Fassit v. Phillips, 4 Wharton, 399, 409, were in an interlocutory proceeding, and are extra-judicial. But in Canal Bank v. Cox and Tr., 6 Greenleaf, 395, 402, it was held that a stipulation for the release of the (1) Beatty, Trustee ii. Davis, 9 Gill, 213. (2) And see Conklin -v. Carson, 11 Illinois, 609. (3) M'CuUock V. Hutchinson, 7 Watts, 434 j Smith v. Lowell, 6 New Hampshire, 67 ; Smith V. Smith, 11 Id., 460, 465. (4) Seiiving v. BrinkerhofF, 5 Johnson's Chancery, 329, 332 ; Skipwith's Ex'or u. Cunning- ham, Ac., 8 Leigh, 272, 291. (5) Hennessy u. The Western Bank, 6 Watts & Sergeant, 301, 311 ; In re Wilson, 4 Barr, 431, 448. 72 assignme:n'ts fob the benefit of creditors. grantor's sureties and endorsers, as well as of himself, was not fraudulent. An assignment of part of the debtor's property to such creditors as should release, the suplus to be divided among the creditors generally, where the existence of a residue was concealed by the debtor, was considered to be fraudulent in fact, in Le Prince v. Guillemot, 1 Richardson's Equity, 187, 201, 218, 219; and in Jacot V. Oorhet el at, 1 Cheves's Chancery, 71, 74, a reservation to the grantor of the surplus after paying to releasing creditors forty per cent., if the estate would yield as much, was decided to be fraudulent. In New York, it is conclusively settled, not only that a stipulation for a release as a condition of receiving a benefit under the deed, the surplus returning to the debtor in exclusion of non-releasing creditors, is fraudulent ;(1) but that such a stipulation as a condition of preference, though the only penalty be the postponement of non-releasing creditors to others, avoids the deed; (2) and the principle established by that case, and repeated in Goodrich v. Downs, 6 PliU's N. Y. 438, is, that though preferences are allowed, the appropriation of the property to the use of the creditors must be absolute and unconditional, and that the creation of a trust that is to operate by way of coercing the creditors into a relinquishment of part of their demands, is fraudulent and void, though no portion of the property be reserved to the debtor's own use : and this general principle is approved and sanctioned in Hafner v. Irwin, 1 Iredell's Law, 490, and Robins et al. v. Emhry et al ,\ Smedes & Marshall's Chancery, 208, 265 ; and see Whallon v. Scoti, 10 Watts, 237, 244 ; see also Hastings V. Belknap, 1 Denio, 197. The law of Ohio goes as far as that of Now York : a condition of release avoids the assignment ;(3) even if the surplus is not reserved to the debtor but is to be distributed to creditors ; (4) and the decisions in Missouri appear to go to the same extent. (5) In Connecticut and Illinois, the requirement of a release, as a condition of participation in the fund, the surplus resulting to the assignor, is fraudulent and avoids the deed ;(G) and the same principle has been adopted in the District of Maine ;(7) these cases leaving undecided the question whether a release being made a condition of preference merely,- is fraudulent. In the State of Maine, before the statute of April 1, 1836, conditions of release were valid ;(!:!) but since that statute, as also in New Hampshire since the act of July 5, 1834, both of which provide for equality of distribution among all the creditors, conditions of release or discharge, are fraudulent, (9) In Pennsylvania, Virginia, and South Carolina, assignments for the benefit of such as shall release, are valid, being now too long established to be overthrown ; (10) and on the authority of the Pennsyl- (1) IIvslop V. Clarke, U Johnson, 458 ; Austin v. Bell, Id. 20, 442, 448. (2) Wakemac v. Grover, 4 Paige, 24 ; S. C. on error, H Wendell, 187, 202, 225. (.3) Atkinson & Rollins v. Jordan Ellis & Co. and otliers, 293 ; Woolsey t). Brner, Wright, 606. (4) Barret & Nicholson i: Rl'IcIs et al., Wrigiit, 701. (5) Brown v. Knox, Boggs & Kno.\, 6 Missouri, 302 ; Drake v. Rogers & Shrewsbury, Id., 317, 319. (6) Ingraham v. Wheeler, Connecticut, 277, 283; Howell et al. v. Edgar et al., 3 Seara- mon, 417 ; Ramsdell et al. I'. Sigerson et al., 2 Giliuan, 78, 83; Swearinger -v. Slicer, 5 Mis- souri, 241. (7) The Watchman, Ware, 232. 242, 244. (8) Todd I'. Buckman, 2 Fairfield, 41. (9) Pearson v. Crosby, 23, Maine, 261 ; Hurd v. Silsby and Trustees. 10 New Hampshire, 108. (10) Lippincott 1'. Barker, 2 Binney, 174; Livingston u. Bell, 3 Watts, 198, 201; Bajne v. THOMAS V. JENKS: GBOVER V. WAKEMAN. 73 vania decisions, Marshall, C. J., with some doubt and regret, sustained such an assignment in a Pennsylvania case ;(1) in South Carolina, however, it has been held that an express reservation of the surplus to the grantor, would be fraudulent ;(2) and though this distinction is denied in Pennsylvania ;(3) yet perhaps it is well taken, upon the ground that in the face of such an express provision, Chancery probably could not exercise its jurisdiction to let the creditor come in upon the surplus in the hands of the trustee, without over- turning the deed. (4) In Massachusetts such conditions seem to be sustained ;(5) (6) and partly upon the supposed opinions of the profession in that region, a condition of release was upheld in Halsey et al. v. Whilney et al, 4 Mason, 207, 237, 230. In Alabama, a condition of release was decided to be valid in an early case (two judges dissenting ;) (7) and that decision has reluctantly been adhered to, on the ground of mere authority, the principle being strongly condemned, in Ashurst v. Martin, 9 Porter, 567, 573 ; see also Smith v. Leavilts, 10 Alabama, 93, 105 : and the later cases in that State have approved and adopted the general principle of Grovcr v. Wakemun, that an assignment for the benefit of creditors must be absolute and unconditional, without reserved benefit or attempted coercion. (8) And it has since been decided that a condi- tion of release with an express reservation of the residue to the grantor, in case of non-release, makes the assignment fraudulent and void. (9) See the subject of the validity of assignments, with a stipulation for a release, discussed at length in M Gall et al. v. Rlnkley & Woodward, 4 Gill. 129. If the time allowed for a release is unreasonably short, it will render the conveyance fraudulent, even where a provision of release is not deemed un- lawful.(lO). When a condition of release is sustained, equity will decree the surplus to those creditors who have not acceded to the deed. (11) An assignment which is fraudulent in any of its provisions is void in toto, as against those entitled to take advantage of the fraud ;(12) this appears to Wylie, 10 H. 309, .312 ; Mechanics' Bank v. Gorman, 8 Watts & Sergeant, 304, 308 ; Pearpoint, & Lord V. G-rahara, 4 Washington, 232, 236j Sliipwitb's Ex'or v. Cunningliam, &c., 8 Leigli 272, 290; Keevan et als. v. Branch, 1 Grattan, 275; Niolon v. Douglass and others, 2 Hill's Chancery, 443, 452 ; Le Prince v. Guillemot, 1 Richardson's Equity, 187, 218. (1) Broshear v. West and others, 7 Peters, 609, 615. (2) Niolon V. Douglass and others, 2 Hill's Chancery, 443, 453; Jacot v. Cobett et al., 1 Cheeve's Chancery, 71, 78. (3) Dana v. The Bank of the United States, 5 Watts & Sergeant, 224, 250. (4) See Doremus v. Lewis, 8 Barbour's S. Ct. 124. (5) Borden et al. v. Sumner, 4 Pickering, 265 ; Andrews u. Ludlow and Trs., 5 Id., 28, 33 ; Nostrand o. Atwood, 19 Id. 281. (6) Robinson v. Rapelye & Smith, 2 Stewart, 86, 100. (7) Gnzzam v. Poyntz, 4 Alabama, 374, 382 ; Wiswall v. Tickaor & Day, 6 Id., 179, 184. (8) Grimshaw & Brown !•. Walker, 12 Id., 101. See Brown, Trustee v. Lyon k O'Neal, 17 Id., 659, 663 ; West, Oliver & Co. i;. Snodgrass, 17 Alabama, 549. (9) Fox V. Adams et al., 5 Greenleaf, 245, 253; Ashurst j;. Martin, 9 Porter, 567, 674. (10) Brashear v. West and others 7 Peters, 609, 615 ; Vaughan v. Evans and others, 1 Hill's Chancery, 414, 422; Vernon, Ac. v. Moreton & Smith, &e., 8 Dana, 247, 254; Skipwith's Ex'or V, Cunningham, kc, 8 Leigh, 272, 295. (U) Mackie A Cairns, 5 Cowen, 549, 580 ; Goodrich!.. Downs, 6 Hill's N. T., 438, 440 ; Fiedler V. Day, 2 Sandford's S. Ct., 594, 597 ; Harri.s et al. v. Sumner, 2 Pickering, 129, 137; M'Clurg v. Lecky, 3 Penrose & Watts, S3, 94; Irwin .;. Keen, 3 Wharton, 347, 355 ; Halsey et al., v. 7i ASSIGNMENTS FOR THE BENEFIT OF CREDITOES. depend upon the principle, that if a contract be fraudulent and void in part it is void altogether, because contracts are entire : but the same deed may contain several distinct contracts of conveyance, and then the circumstance that one contract is fraudulent, will not render void another contract, which is legally distinct from it.(l) A creditor who has confirmed a fraudulent deed, by receiving a benefit under it, or has become a party to it, is estopped from afterwards impeaching it;(2) and an insolvent's assignee who has aifirmed a fraudulent sale of the insolvent by suing for the price and attaching the buyer's property, cannot afterwards set aside the sale and maintain trover for the property. (3) When an assignment is set aside for fraud, the assignee is not answerable for payments made under it to bona fide creditors before the filing of the bill;(4) or money retained under it by him as a bona fide creditor (5) In several of the states, for example. New Jersey, (6) Maine,(7) New Hamp- shire, (8) and Connecticut, (9) preference in general assignments for creditors by insolvent persons are prohibited by statute ;(10) and these statutes have gene- rally been held to extend only to general assignments. (11) In Ohio, by the acts of 1835 and 1838, fraudulent assignments, and assignments in contempla- tion of insolvency, to a trustee for creditors with preferences, enure to the equal benefit of all the creditors ; and this, though limited to assignments to a trustee, and not extending to conveyances directly to creditors, applies where the fraud is only in the assignor.(12) In Pennsylvania, by an act of 17th April, 1843, assignments by insolvent debtors to trustees, to prefer one or more creditors, except for payment of wages of labour to the extent of fifty dollars, were directed to be construed as enuring to the benefit of all the credi- tors in proportion to their respective demands. Under this act, an assignment to pay preferred debts, not being those of laborers, is not void, but the assign- ment operates for the benefit of creditors generally ; Law v. Jlills, 18 Penna. Whitney ct al., 4 Mason, 207, 230 ; Tioknor & Day v. Wiswall, 9 Alabama, .305, 311 ; Kiasam v. Eiimundson et al., 1 Iredell's Equity, 180, 184; Hafnem. Irwin, 1 Iredell's Law, 490, 498. (1) Skipwith's E-t'or v. Cunningham, &o., 8 Leigh, 272, 293; Anderson ot al. v. Hooka, et ai., 9 Alabama, 705, 7)2. (2) Adlum V. Yard, 1 Rawle, 163, 171 ', Burrows & Jennings v. Alter and others, 7 Missouri, 424. (3) Butler v. Hildreth, 5 Metcalf, 49. (4) Wakeman v. Grover, 4 Paige, 24, 42; Ames v. Blunt, 5 Id., 13, 22; Stewart v. M'Minn, 5 "Watts & Sergeant, 100, 103; Hutchins n. Sprague et al., 4 New Hampshire, 469,477; Crown- ingshiekU. Kittridge, 7 Metcalf, 520, 523. (6) Peacock v. Tompkins, Moigs, 317, 329. (6) Act of 23 Feb., 1820, Rev. Laws, 674, 1 Elmer, 16. (7) Act of Ap. 1, 1 836, 3 Laws of Maine, 550, eh. 761. (8) Act of July 5, 1834. (9) Act of 1828, 0. 3, p. 182. (10) Varnum v. Camp, 1 Green, 326 ; Pike r. Bacon, 21 Maine, 280. (11) Bates II. Coe, 10 Connecticut, 281, 293; Mer. Man. Co. <. Smith, 8 New Hampshire, 347; Beard v. Kimball and Trustees, 11 Id., 471 ; Barker v. Hall and Trustee, 13 Id., 298, 360. See also the statute of Massachusetts, of 1836, c. 238, and Henahaw v. Sumner, 23 Pickering, 446, 4.32. (12) Hulls V. Jeffrey et al., 8 Ohio, 390 ; Harshman, Rench and others v. Lowe and others, 9 Id., 92 ; Wilcox and Welsh v, Kellogg and others, 11 Id., 394 ; Mitchell v. Gazzam and others 12 Id. 315. THOMAS V. JENKS: GEOVER V. WAKEMAJST. 75 Stat., 185 ; Werners. Davis, Id., 331 ; although upon an assignment in trust for such creditors as shall release, non-releasing creditors are excluded. (1) In Georgia, assignments for the benefit of some creditors to the exclusion of others, by persons unable to pay their debts, are by statute made fraudulent and void against creditors : Act of 1818 ;(2) yet absolute and bona fide sales of pro- perty to a creditor in satisfaction of his claim, are valid. (3) In those States in which the principle of preferences has not been proscribed by statute, it is now viewed with strong disfavour, and the determination is universal to support it no further than a respect for adjudged cases requires. (4) The view now generally adopted appears to be this : that since the claims of creditors may be meritorious in unequal degrees, and since particular creditors have it in their power to obtain a priority by legal proceedings, the preference of creditors is an allowed object or renult of a debtor's assignment, but that it is not permitted to be used as a means of accomplishing ends which are not the legitimate objects of a debtor's eiForts. [A general creditor cannot maintain an action to set aside an assignment as fraudulent and void against creditors He must have obtained a judgment; Neiisladl V. Joel, 2 Duer, 532.] (1) Lea's Appeal, 9 Barr, 604. (2) Ezeldel ». Dixon, 3 Kelly, 146. (.3) M'Whorter v. Wright, Nichols 4 Co., 6 Georgia, 655, 561. (4) See Bojirdman v. Halliday, 10 Paige, 224, 229, and Cram v. Mitchell, 1 Sandford, 261, 253; Webb v. Daggett, 2 Barbour, 10; Niobolsouv. LeaTett, 4 Sandford, 279. 76 SLANDER. SLANDER AND LIBEL. OF THE LEGAL DEFINITION OF SLANDER. BROOKER V. COFFIN. In the Supreme Court of New York. NEW YORK, NOVEMBER, 1809. [reported, 5 JOHNSON, 188-192.] To say of a person, " she is a common prostitute, and I will prove it ;" or that "she was hired to swear a child on me: she had a child before this, when she went to Canada ; she would come damn'd nigh going to the state prison," is not actionable without alleging special damages. The rule seems to he, that where the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpi- tude, or subject him. to an infamous punishment, then the words are in themselves actionable. This was an action for slander. The declaration contained two counts. The first charged, that on the 1st of January, 1808, at Schagticoke, in the county of Rensselaer, &c., for that whereas the plaintiff, being a person of good name, &c., the defendant falsely and maliciously did speak and utter of and concerning the plaintiff, the following false, scandalous, and defamatory words: " She (meaning the plaintiff) is a common prostitute and I can prove it." The second count charged, that the defendant afterwards, to wit, on the day and year aforesaid, at the place aforesaid, in a certain other discourse, &c., did falsely and maliciously speak and utter the following false, scanda- lous, and defamatory words, to wit : She (meaning the plaintiff) was hired to swear the child on me;" (meaning that the plaintiff was hired falsely and maliciously to swear a certain child on the defendant.) " /SAe (meaning the plaintiff) has had a child before this," (meaning before this child or the child which the said defendant had before said the said Nancy had been hired to swear on him,) '■'■when she went to Canada; (meaning a certain time when the plaintiff had been at Canada.) " She (meaning the plaintiff) would come damn'd nigh going to the state prison," (meaning that the said plaintiff was guilty of such BEOOKER V. COFFIN: BURTCH V. NICKERSOST. 77 enormous and wicked crimes, as would, if punished according to the laws and statutes, in such cases made and provided, condemn her to infamous punishment in the state prison.) Whereas, in truth, &c. There was a general demurrer to the first count, and a special de- murrer to the second count, and joinder. Wendell, in support of the demurrer. In England there are various statutes for the punishment of disorderly persons. (1) But the decisions in support of the action have been where the party shows a special dam- age, as for calling a woman a whore, whereby she lost her marriage.(2) Notwithstanding the statutes against disorderly persons, it has never been held that those words were actionable, without alleging a special damage. It is true, that by the act for apprehending and punishing disorderly persons (3) a common prostitute is declared to be a disorderly person, and therefore liable to punishment: but, by the same act, vag- rants, beggars, jugglers, pretenders to physiognomy, palmistry, or such crafty sciences, fortune-tellers, discoverers of lost goods, persons run- ning away from their wives and children, vagabonds and wanderers, and all idle persons not having visible means of livelihood, are also de- clared to be disorderly persons, and are equally liable to be apprehended and punished under the act. If, then, to call a woman a common pros- titute is actionable, without alleging special damage, on the ground of a liability to punishment under this act, then to call a person a juggler, fortune-teller, or physiognomist, would also be actionable, which will hardly be pretended. The words, " that the plaintiff was hired to swear a child," are not actionable ; (1 Com. 270. (F. 12.) (D. 6),) and they are not helped out by the innuendo. The words are ambiguous, and it is not said whose child was referred to, so that the defendant could not come prepared to prove the truth of the words. The words, that " she would come damn'd nigh going to the state prison," are too vague and general to be the ground of an action. (2 Johns. Rep. 12.) Again, in the second count, the plaintiff does not aver that she was of good fame, &c., and free from the crime charged against her. (I Com. Dig. 276. (G. 1).) Sedgwick, contra. 1. The numerous cases to be found in the books relative to the action of slander, and as to what words are actionable, (1) 4 Com. Just. B. 76, 83. (2) Com. Div. 262; Action for Defamation [D. 30.] (3) 11 sess. u. 31. 78 S L A N D E E. and what are not, are so contradictory and absurd, as to aiFord no satis- sactory rule on the subject. (1) Resort must, therefore, be had to the principle on which the action of slander is founded. Where the words spoken impute to a person an act of moral turpitude or crime which may subject him to punishment, they are actionable. Here the words, besides imputing great moral turpitude, and tending to render the person odious in the opinion of mankind, may, if true, also subject the party to an infamous and disgraceful punishment. Common prostitutes, by the act which has been cited, are declared disorderly persons, and may be sent to bridewell or house of correction, and may be kept to hard labour for sixty days, or even for six months ; and, moreover, may be whipped, at the discretion of the general sessions of the peace. (2) The first set of words charged in the declaration are, according to the general principle I have stated on this subject, actionable. 2. As to the second set of words, I admit, that the sense of them cannot be enlarged by the innuendo. The true rule is, that the words are to be taken in the sense in which they are understood by the gene- rality of mankind, This rule is well laid down and illustrated by Lord Ellenborough, in the case of Woolnoth v. Meadows. (3) If the words, then, fairly import the charge of a crime, and would be so understood by mankind, the injury is inflicted on the character of the plaintiff, as completely and deeply, as if the crime had been imputed in the most direct and positive terms; and the plaintiff is entitled to a remedy. Can there be any doubt, in the mind of any man, that the defendant meant to say that the plaintiff had been guilty of perjury? ^Yendell, in reply, observed that if to say of a person what, if true, might subject him to an indictment, would render the words actionable, without alleging special damage, then to say of a person that he had committed an assault and lattery on another, would be actionable. Spencer, J., delivered the opinion of the court. The first count is for these words, " She is a common prostitute, and I can prove it ;" and the question arises whether speaking these words gives an action, with- out alleging special damages. By the statute (1 R. L. 124), common prostitutes are adjudged disorderly persons, and are liable to commitment, by any justice of the peace, upon conviction, to the bridewell or house (1) 1 Com. Dig. Action on the case for Defamation [D. 3.] {D. 9.] [F. 20,] 3 Black. Com. 124; 4 Bao. Abr. -187. (2) 11 .sess. u. 31, ». 1, 2, 3. (3J oEiist, 403; Cowp., 275, 278; 2Ld. Rajm., 9o9; 1 Vent. 117. BROOKEE V. COFFIN: BUETCH V. NICKEESON. 79 of correction, to be kept at hard labour for a period not exceeding sixty day?, or until the next general sessions of the peace. It has been sup- posed that, therefore, to charge a woman with being a common prosti- tute, was charging her with such an offence as would give an action for the slander. The same statute which authorizes the infliction of impri- sonment on common prostitutes, as disorderly persons, inflicts the same punishment for a great variety of acts, the commission of which renders persons liable to be considered disorderly ; and to sustain this action would be going the whole length of saying, that every one charged with any of the acts prohibited by that statute, would be entitled to maintain an action for defamation. Among others, to charge a person with pre- tending to have skill in physiognomy, palmistry, or pretending to tell fortunes, would, if this action is sustained, be actionable. Upon the fullest consideration, we are inclined to adopt this as the safest rule, and one which, as we think, is warranted by the cases: In case the charge, if true, will subject the party charged to an indictment for a crime in- volving turpitude, or subject him to an infamous punishment, then the words will be in themselves actionable ; and Baron Comyns considers the test to be, whether the crime is indictable or not (1) There is not, perhaps, so much uncertainty in the law upon any subject, as when words shall be in themselves actionable. From the contradiction of cases, and the uncertainty prevailing on this head, the court think they may, without overleaping the bounds of their duty, lay down a rule which will conduce to certainty, and they, therefore, adopt the rule I have men- tioned as the criterion. In our opinion, therefore, the first count in the declaration is defective. The second count is for saying of the plaintiff, " She was hired to swear the child on me: she has had a child before this, when she went to Canada ; she would come d — d near going to the state prison." These words are laid as spoken at one time; if, then, any of them are action- able, it is sufficient. The innuendoes enlarge their meaning, and are not justified. One of them avers, that the defendant meant that the plain- tiff was hired, falsely and maliciously, to swear the child on the defend- ant ; and another innuendo, in explaining the words, " She would come damn'd near going to state prison," alleges that the defendant meant that the plaintiff was guilty of such enormous crimes as would, if punished according to the laws, &c., condemn her to infamous punish- ment in the state prison. Now I do not perceive, that the charge at all warrants the inference that the plaintiff had been guilty of perjury ; (1) 1 Com. tit. Action on the case for Defamation, F. 20. 80 SLANDER. and the cases of Hopkins v. Bradle, (1 Caines, 347,) Stafford v. Green, (1 Johns. Rep. 505,) and Ward v. Clark (2 Johns. Hep. 11), are autho- rities against sustaining this count. The defendant must, therefore, have judgment. BURTCH V. NICKERSON. In the Supreme Court of New York. ALBANY, OCTOBER, 1819. [reported, 17 JOHNSON, 217-221.J To say of a blacksmith, in relation to Ms business and trade, " He keeps false books, and I can prove it," is actionable : and where the declaration stated that the plaintiff, at the time of publishing the slanderous words, was, and long be/ore had been, a blacksmith, and carried on the business and trade of a blacksmith honestly, and found and provided all such iron as was necessary, and required of him in his business ; and made correct charges, and had always kept honest, true, and faithful accounts with all persons relating to his trade, ^c- Yet the defendant, in order to injure the plaintiff in his business, and to cause to be believed, ^c, in a certain discourse of and concerning the plaintiff in his said business, spoke and published the folloiuing words, ^c, it was held sufficient, without a more special averment, that there was a discourse of and concerning the plaintiff's trade, and that the words were spoken of his trade. In error, to the Court of Common Pleas, of Putnam County. Nickerson brought an action of slander against Burtch in the court below. The declaration stated, that, at the time of publishing the slan- derous words, the plaintiff was, and long before had been, a blacksmith, and carried on the business and trade of a blacksmith, honestly, and found and provided all such iron as was necessary, and required of him in the business aforesaid, and made correct charges, and has always kept honest and faithful accounts with all persons relating to his trade; and until the speaking the words charged, was never suspected of keep- ing false books and accounts with persons who employed him ; yet the defendant, in order to injure the plaintiff in his business, and to cause it to be believed that he kept false books of accounts, in a certain discourse BROOKER V. COFFIN: BURTCH V. NICKERSOK. 81 which he had with divers good citizens, of and concerning the plaintiff' in his said business, spoke and published the words following : " Ee keeps false accounts and I can prove it." The plaintiff further alleged damages, in the loss of customers, who were named in the declaration; and on the trial he proved, by Edward Mooney, the words substantially as laid, and that, in consequence of publishing the same by the defendant, the witness did not employ the plaintiff as a blacksmith, which he otherwise would have done ; that the defendant was speaking of the plaintiff as a blacksmith, when he made the charge of keeping false books. Other witnesses were examined on the part of the plaintiff, but their testimony did not appear to support the declaration. The counsel for the defendant insisted, that the words were not, of themselves, actionable, unless they were spoken of the plaintiff"s trade ; and further, that they were not actionable in any sense, and more espe- cially if they had reference to any item in the accounts of the parties ; and that the plaintiff was not entitled to recover, unless he had "proved special damages, and requested the court so to charge the jury. The court charged the jury, " That it made no difference whether words were spoJcen of a blacksmith or merchant, as to their being action- able," but did not charge on any other point. The jury found a verdict for the plaintiff, on which judgment was rendered. A bill of exceptions was taken to the opinion of the court ; and on the return to the writ of error, the cause was submitted to the court without argument. WoODWORTH, J., delivered the opinion of the court. The defendant in error contends, that the plaintiff in error is confined to the single point contained in the bill of exceptions. This, I apprehend, is incor- rect ; for when the record is made up, a special assignment of errors to the bill of exceptions is not required, but a general assignment is suffi- cient.(l) Consequently, the plaintiff in error may claim to have the judgment reversed, for matter apparent on the record or bill of excep- tions. Before I consider whether the exceptions are well taken, it is proper to state, that no question can now arise on those points on which the court below omitted to charge the jury.(2) A bill of exceptions may be taken on some point of law, either in admitting or denying evidence, or a challenge, or some matter of law arising upon a fact not denied, (1) 13 Johns. Rep. 475, Shephead v. Merrit. (2) T. Raym., 404; 2 Term Rep., 146; Show., 120, 122. Vol. I.— 6 82 SLANDER. in ^vhich either party is overruled hy the court.{l) But the refusal of the court to express any opinion on any particular point is not a case within the reach of a bill of exceptions. Our inquiry then is, in the first place, whether the declaration contains a good cause of action, independent of the special damages alleged ; and if so, whether the charge of the court below, on the point adjudged, was correct- The general rule is well settled, that slanderous words are not action- able, unless " the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment." [2) The exceptions to the general rule are words spoken of a person in his oi35ce, profession or trade, or which impute to liim an infectious disease. (3) If the present action can be supported, it must be because it comes within one of the exceptions to the general rule. If the words are not actionable, but in regard of the plaintiff's trade or profession, it is not sufficient to allege the speaking of him, without a colloquium of Ms trade, . Wimp, 10 B. Monroe, 417. (2) Williams v. Karnes, 4 Humphrcjs, 9.^ BROOKEE V. COFFIN: BURTCH V. NICEBESON. 87 The criterion, involved in tlie other part of the rule, which is the only part of much practical application at present, viz., that the imputed oifence should be indictable, or otherwise punishable, and should involve moral turpitude, has ever since been adhered to in New York ; and is expressly approved of, and applied, in Widrig v. Oyer, 13 Johnson, 124; in Martin v. SliUwell, Id. 275; (Ja^e V. Bucldey, 15 Wendell, 327 ; Bissell v. Cornell, 24 Id. 354 ; and Young v. Miller, 3 Hill's N. Y. 21, in which last the rule is examined, and it is declared to be unnecessary that legal infamy should attach to the offence, provided it be in- dictable either at common law or by statute, and be infamous or disgraceful in a general or moral sense ; and this is confirmed in Ormofard v. Wilson, 4 Bar- bour, S. Ct. 505, 511 ; see also Van Ness v. Hamilton, 19 Johnson, 349, 367. The rule in Brooker v. Coffin, is approved in Alabama, and the test of being indictable, and of involving moral turpitude, has there been applied to sustain an action for slander where the offence was indictable only by statute, and was pun- ishable by fine, and not by infamous punishment, but was morally base and wicked. (1) The same case and rule have been approved and adopted in New Jersey, Delaware, Michigan, Georgia and Pennsylvania ;(2) and in Pennsylvania it has been decided that the imputation of an offence — removing land-marks — which was punishable by pecuniary penalty only, but was of an infamous char- acter, was actionable. (3) In South Carolina, also, although the test of infamous punishment was mentioned in Howard v. Stephenson, 2 Mill's Const. P^. 408 ; the definition in Brooker v. Coffm is adopted in Gaye v Shelton, 3 Richard- son, 243. The same test seems to prevail in Blassachusetts ; in Miller v. Parish, 8 Pickering, 384, the court said "whenever an offence is charged, vphicli, if proved, may subject the party to a punishment, though not ignomi- nious, but which [i. e. the offence, as it seems] brings disgrace upon the party falsely accused, such an accusation is actionable :" and in Bunnell v. Fiske, 1 1 IMetoalf, 551, it is said, that words to be actionable in them.selves must charge " some crime or offence punishable by law." In Indiana, they do not seem to have decided between Mr. Starkie's rule and that in Brooker v. Coffin. In some cases they have gone upon both ; Wilcox v. Edivards, 5 Blackford, 183 ; in others, the latter criterion seems to be adopted ; Hays v. Allen, 3 Id. 408. In New Hampshire, the imputation of "a crime punishable by law;' (4) and in Maryland of " a crime which subjects the plaintiff to punishment,"(5) is stated to be the test. In the later English cases, similar language is used ; " the words, to be actionable, must impute a criminal offence," says Alderson, B., in Heming v. Power, 10 Meeson & Welsby, 564, 570, "that is, the words, if true, must be such that the plaintiff would be guilty of a criminal offence :" and in Edsall v. Russell, 5 Scott's New, 801 ; S. C. 2 Cowling's N. S., 641, it is said to be well known that words are not actionable unless they impute some (1) Coburn v. Howard, Minor, 93; Perdue v. Burnett, Id., 138; and ia again approved ia HiUhouse t>. Peek, 2 Stewart & Porter, 395; Johnson o. Morrow, 9 Porter, 526. (2) M'Cuen v. Ludlum, 2 Harrison, 13 ; Kinney v. Hosea, 3 Harrington, 11; Taylor v. Knee- land, 1 Douglass, 68. 72; Giddens v. Mirk, 4 Georgia, 364, 368 ; Andress and Wife v. Koppen- heafer, 3 Sergeant k Eawle, 255, 257 ; See also Stiaffer v. Kintzer, 1 Binney, 537 ; M'Clurg c. Eoes, 6 Id., 218. (3) Todd V. Kough, 10 Sergeant & Eawle, 18, 22. (4) Tenney v. Clement, 10 New Hampshire, 52, 57. (5) Sheely v. Biggs, 2 Harris & Johnson, 363. S L A N D E B. crime or indictable offence.'' These definitions are quite the same as that of De Grey in Onslow v. Home ; and understanding the word crime, as denoting something inherently immoral, which is no doubt the sense in which it is intended, they agree with Brooker v. Cojfin. To illustrate the general principle stated and adopted in Broolter v. Coffin, it may be expedient to refer to some cases, which will show that the impuation of an indictable or punishable offence is not actionable unless the offence involve moral turpitude ; that the imputation of an offence of moral turpitude is not actionable unless the offence be indictable ; and that the imputation of any offence of moral turpitude which is indictable by statute, though only a misde- meanour, is actionable. It is agreed that a charge of assault and battery, or forcible entry and de- tainer, is not actionable, though indictable and punishable by fine and imprison- ment, because there is no moral turpitude in such acts;{l) not even charging an assault and battery by a man on his wife, so that he made her miscarry. (2) It has been held, also, that a charge of " breaking open and reading a letter" sent by mail is not actionable, though the offence is indictable ; because it is not inherently a crime, nor infamous, and the law rendering it indictable, is intended rather to protect the post-office department than to punish a crime. (3) A charge of drunkenness, or profane swearing, is not actionable, it is said, because punishable only by fine ; but the true reason appears to be because they are not acts of moral turpitude (4) On the other hand, an imputation of breach of trust is not slanderous, because the offence, though morally base and disgraceful, is not indictable ;(5) and to charge a man with being a " swindler" or "cheat," or to use words which import a cheat in a private transaction, and not in a course of public dealing, is not actionable, because the thing is not an offence known to the law, and is not indictable ;(6) and in Alabama, a charge of marking another person's hogs was held not to be actionable, because though civilly punishable, it was not indictable. (7) Upon the same distinction, in New York, where the crime against nature is indictable by statute, it has been decided that such a charge is slanderous and actionable ;(8) but in Alabama, it has been decided not to be slanderous, because though of the highest moral turpitude, it is not indictable by common law, nor is made so by the laws of that state. (9) And the rule seems to be general, that any act, though not felonious, yet if (1) Dicta per Tilghman, C. J., and Gibson and Duncan, Js., in Andres and Wife v. Kop- peoheafer, 3 Serg. A Rawle, 25.5, 256, 258, 261; and per Hornblower, C. J., and Dayton, J., in M'Cuen v. Ludlum, 2^ Harrison, 13, 17. (2) Dudley v. Horn, 21 Alabama, 379. (3) Hillhouse v. Peck, 2 Stewart and Porter, 395. ^■l) Warren and Wife v. Norman and Wife, Walker, 387; Elliott v. Ailesberry, 2 Bibb, 473; Buck V. Hersey, 31 Maine, 55S. (6) M'Clurg t>. Ross, 5 Binncy, 218; She 'ut -. M'Dowell, 1 Const. Rep. 1st ser. 35. (6) Savile i). Jardin, 2 H. Blackstone, 531 ; Wilby u. Elston, 8 Man., Gr. k Scott, [65 E. C.L.] 142 ; Stevenson t>. Hayden, 2 Massachusetts, 406; Winter ii. Sumvalt, 3 Harris k Johnson, 38 ; Chase v. Whitlock, 3 Hill's N. Y., 13 J ; Weierbaoh v. Trone, 2 Watts A Sergeant, 108. (71 Johnston v. Morrow, 9 Porter, 525. (8) Goodrich v. Woolcot, 3 Cower, 231, 239; S. C. on error, 6 Id., 714. (9) Coburn t-. Harwood, Minor, 93. BKOOKEE V. COFFIN: BUETCH V. KICKERSON. 89 indictable by common law or by statute, and inferring moral or social degrada- tion, is actionable. Accordingly a charge of keeping a bawdy house is action- able, because the offence is a common nuisance, and the person guilty of it is indictable, and it obviously involves moral turpitude ;(1) a charge of soliciting a person to commit murder, which is a high mi8demeanour;(2) a charge of making a libel; Andress & wife v. Koppenhea/er, 3 Sergeant & Rawle, 255; (but see the remarks on this case in Proper v. Lu€e, 3 Penrose & Watts, 65, 66;) a charge of embracery, which is indictable both by statute and comaion law;(3) a charge of removing landmarks, in New York and Pennsylvania, being, by statutes, punishable, in the former state by fine and imprisonment, and in the latter by fine alone, but clearly involving the crimen falu;{Vj and in Alabama, a charge of altering the marks on hogs, being by statute indictable and punishable, though by fine only;(5) in Indiana, a charge of malicious trespass, being by statute indictable and punishable, by fine and imprisonment, and being an ofi'ence infamous in its character ;(6) and in South Carolina, a charge of killing the defendant's horse in the night-time, being indictable by statute ;(7) have all been decided to be slanderous. In New York, where a statute made it a misdemeanour, punishable ^y imprisonment in the county jail, to make wilfully a false declaration of a right to vote at a district meeting, upon being challenged, it has been decided that words charging a person with having wilfully made such false declaration, are " actionable in themselves; as they impute a misdemeanour involving moral turpitude, for which the person against whom the charge is made can be proceeded against by indictment ;"(8) [In Pennsylvania it has been held that charging an administrator with fraudu- lently secreting his testator's assets, (of which by law he is bound to make a true return on oath,) is actionable ; and the courts and the rule would seem to be that damages are presumed where the slander involves a charge of both legal and moral turpitude ; though it does not involve a danger of punish- ment. "And the legal turpitude," the court saiA, " need jiot be very great. Here the moral turpitude is very gross, consisting of a positive and fraudulent breach of an oflEcial oath. The legal turpitude is marked by the fact of a vio- lation of an ofiScial oath, which is a good cause for a disgraceful dismissal from office and possibly for an indictment for misdemeanour."(9) But the court had a good deal of difficulty in this case, and the Chief Justice dissented. Indeed it is difficult to understand what is meant by legal turpitude, in contrast to moral, except such as the law certainly takes notice of.] In England, it is well settled that, unless special damage is shown, to charge a woman with fornication or adultery, or incontinence in any shape, is not actionable at common law, the off'ences not being punishable in the temporal (1) Martin v. Stillwell, 13 Johnson, 275 ; Brayne a. Cooper, 5 Meeson & Welsby, 249. (2) Demarest v. Haring, 6 Cowen, 76, 87. (.^) Gibbs V. Dewey, 6 Cowen, 503. (4) Young V. Miller, 3 Hill's N. T., 21; Todd v. Rough, 10 Sergeant &, Rawle, 18, 23. (5) Perdue v. Burnett, Minor, l.'iS. (6) Wilcox V. Edwards, 5 Blackford, 183. (7) Gage v. Skelton, 3 Richardson, 242. (8) Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 510. See other similar instances in Widrig ti. Oyer, 13 Johnson, 124; Bissell v. Cornell, 24 Wendell, 354. (9) Beck I'. Stizel, 21 Penna. State, 522. 90 SLANDER. courts, but cognizable in the ecclesiastical courts only ;(1) except in London, and some particular places, where by custom, the offence is summarily puuish- able, and where the imputation is therefore actionable; (2) and this is the law of several states in this country, where those offences have not been made in- dictable by statute ;(3) and was the law of others, before statutes were pastei to make such charges actionable ;(4) but in those states in which fornication and adultery have been made indictable by statute, such charges are held to be actionable, as in Pennsylvania, Massachusetts, Connecticut, and Georgia; (5) [but if the word have any meanings besides its strictly legal one, it will depend on circumstances, of which the court will judge whether the legal sense is bad; hence, for a church pastor, acting in pursuance of an order of an ecclesiastical court, to allege that a certain person who had been tried by the court had " clearly violated the seventh commandment" when in a subsequent part of the sentence, he spoke of the sin of fornication and uncleanness has been held not to be actionable as a charge oi legal "adultery;" there being an adultery in scripture separate from the sort of adultery punished by law;](6) and in New Jersey, where fornication and bastardy constitute a punishable offence, an impu- tation thereof is actionable, though an imputation of fornication alone is not; (7) and in several states, statutes have been passed making the charge of fornica- tion or adultery slanderous and actionable. (8) In Ohio, by an innovation on the common law, it is held that to charge want of chastity on a female is actionable, on account of the probable injury to her social position and pros- pects ;(9) and this has since been pushed to a very irrational extent; for in a late case (10) the court said, "We hold it a sound principle of law (!) that words spoken of a female, which have a tendency to wound her feelings, bring her into contempt, and prevent her from occupying such position in society as is her right as a woman, are actionable in themselves;" and the defendant in that (1) Byron v. Elmes, Sal. 693; Graves v. Blanehet, Id., 696: Wilby v. Elston, 8 Man., Gr. & Scott, [65 B. C.L.] 142. (2) Brnnclt and Wife v. Roberts and Wife, 4 Burrows, 2418. (3) Buys and Wife v. Gillespie, 2 Johnson, 115; StanfieM v. Boyer, 6 Harris & Johnson, 248; Woodbury v. Thompson, 3 New Hampshire, 194. (4) Boyd and Wife v. Brent, 3 Brevard, 241 ; Robert W. and Wife v. B. S., 2 Nott &, M'Cord, 204 ; Berry v. Carter, et ux., 4 Stewart & Porter, .387 ; Elliott v. Ailshury and wife, 2 Bibb, 473. (5) Walton v. Singleton, 7 Sergeant &, Watts, 44^^; Barker v. Orr, 10 Watts, 246, 248 ; Beirer V. Bushfield, 1 Id., 23; Miller v. Parish, 8 Pickering, 384; Frisbie i. Powles, 2 Connecticut, 707; Pledge and Wife v. Hathcock, 1 Kelly, 560. (6) Farnsworth and Wife v. Stors, 5 Cushing, 412. (7) Smith V. Minor, Cox, 16. (8) For example, in North Carolina, St. of 1808 ; See M'Brayer v. Hill, 4 Iredel's Law, 136 ; Watts V. Greenlee, 2 Devereux, 116 ; Kentucky, St. of 1811, sec. 9; See Morris u. Barkley, 1 Littell, 64; Phillips v. Wiley, 2 Id., 163; Indiana, Ind. Terr. Statutes, 1813, p. 110; aco Ind. St., 1823, p. 296, and Ind. R. S. 1838, p. 462; See Akom r. Hooker, 7 Blackford, 58; Worth v. Butler, Id., 261 ; Shields v. Cunningham, 1 Id., 86 ; Wilcox v. Webb, Id., 268 ; South Carolina, St. of 1824, p. 28; See Freeman «. Price, 2 Bailey, 116 ; Illinois, R. S., 622; See Regnier v . Cabot, 2 Gilman, 34; Patterson et al. v. Edwards et al.. Id., 720; Alabama, St. of Feb. 2d, 1839; See AVilliams and Wife v. Bryant and Wife, 4 Alabama, 44. (9) Goodenow v. Tappan, 1 Ohio, 60; Sexton ^. Todd, Wright, 317; Wilson v. Eunjan, Id., 651. (10) Malone v. Stewart and Wife, 15 Ohio, 319. BEOOKEE V. COFFIN: BUETCH V. NICKEESON. 91 case having called the woman an hermaphrodite, instead of the judgment Risu solventur tahellse, tu missus ahibis," being entered, the words were decided to be actionable! See Wetherhead v. Armitage, 2 Levinz, 233. The imputation of any felony is actionable : and we may consider separately the most prominent instances that have occurred. 1. A felonious killing, — A general charge of having killed another, without explanation or limitation, is actionable ;(1) because "every homicide is judi- cially, as well as to the common apprehension of mankind, deemed felonious unless the circumstances of justification or excuse appear;" per minor J. ,(2) accordingly, the following expressions have been held actionable; "You have killed my brother;" (3) or " You killed a negro;" (4) or "You are a gang of murderers — you killed T., and you know it;"(5) or " He killed my child — it was the saline injection that did it," innuendo of felonious killing ;(6) or "I think the present business ought to have the most rigid inquiry, for be murdered his first wife, that is he administered improperly medicines tuken for a certain com- plaint, which was the cause of her death. "(7) The imputation of an intent to kill, as by saying, " She put poison in a barrel of drinking water to poison me," is also slanderous. (8) 2. Arson. — At common law, it is actionable to charge a man with any burn- ing of a house which amounts to arson, but not where the burning is not arson ; v to say, therefore, " G. burnt the camp-ground," referring to certain houses owned by a corporation, is actionable;(9) but to say, "the plaintiff burnt his (the defendant's) house," where the conversation showed that he alluded to an out-house not parcel of a dwelling-house, is not actionable ;( 10) In Kentucky and Maryland, however, where statutes have made the wilful burning of any house arson, it is actionable to charge a man with burning a school house or barn;(ll) and in Alabama, to charge one with burning a cotton-house or gin- house, (a house to store cotton in,) a statute making the offence arson, is action- able. (12) To charge a man with burning his own house, is not actionable, because the act is not unlawful unless the house were contiguous to others, or the burning were with intent to defraud the insurance oflicers, which should be averred ;(13) but a charge of burning one's own house, where a statute made that arsoD in the third degree, has been decided to be actionable. (14) In Bloss V. Tobey, 2 Pickering, 320, the words " he burnt his store ; he would not have got his goods insured if he had not meant to burn it," were held not to be action- (1) Johnson v. Robertson and Wife, 4 Porter, 4S6, 489. (2) Taylor v. Casey, Minor, 258, 261. (3) Jolinson v. Robertson. (4) Hays and Wife i>. Hays, 1 Humphreys, 402. (5) Chandler v. Holloway, 4 Porter, 18. (6) Edsall V. Russell, 5 Scott's New, 801 ; S. C, 2 Bowling's N. S., 641. (7) Ford I'. Primrose, 5 Dowling & Ryland, 2S7. (8) Mills and Wife v. Wimp, 10 B. Monroe, 417. (9) Giddens v. Merk, 4 Georgia, 364, 374. (10) Brady v. Wilson, 4 Hawks, 93. (11) Wallace v. Young, 5 Monroe, 155; Jones ii. Hungerford, 4 Gill A Johnson, 402; Houses. House, 5 Harris & Johnson, 124. (12) Waters v. Jones, 3 Porter, 442. (13) Sweetapple v. Jesse, 5 Barnewall and Adolphus, 27. (14) Case v. Buckley, 15 Wendell, 327. 92 SLANDER. able, because burning one's own properly, unaceompanied by injury to others or a design to injure, is not actionable; such a charge was therefore said not to be actionable, unless there be in the declaration an averment that goods belong- ing to another were in the store, or goods belonging to the plaintiff in the store were insured : but the words used in this case do seem sufficiently to impute an intention to cheat the insurers by the burning of the store. •3. Felonious stealing or larceny. — There are several kinds of taking which are unlawful, but it is only a felonious taking, the charge of which is actionable; the cases therefore go upon a distinction between larceny on the one hand, and a mere trespass, or a mere breach of trust, on the other. A charge of stealing matters which are of such a nature that there may be a felonious stealing of them, is actionable; therefore to say " he stole my sugar and coffee;"(l) or "you did steal my brother's cotton ;"(2) or " there is the man that stole my horse, and fetched him home yesterday morning ;"(3) or a charge of stealing a key, for that, though in the lock of the door of a house, is the subject of larceny ; (4) or for an employer to say of an overseer that he stole his wheat and corn, for that may be a ground of felony ;(5) have been held actionable. Taking clothes, animo furandi, from the dead body of a man drowned in the wreck of a vessel and driven on shore, is a felony, and the imputation of it is a slander. (G) And a charge of talcing things accompanied with circumstances showing that the taking was secret and blameable, has been held to amount to an imputation of felony. (7) And, in a general way, to call a man a "thief," without more, is actionable, because ex vi termini, it imports a felony ;(8) and so is a charge of " pilfering ;"(9) and of being a "thieving person. "(10) But if one be charged with stealing, under such circumstances as show that a felony was not capable of being committed, or at least was not committed, but that the act was either a trespass or a breach of trust, the charge will not be action- able. A charge of stealing something which is part of the freehold ; for example, a charge of stealing, understood to relate to standing timber;(ll) as to say "ho stole my bee-tree ;"(12) or, a charge of stealing earth, as to say, "he stole my marl;"(I3) is not actionable : nor is a charge of stealing a dog, that not being a felony ;(14) or a charge, "you have stolen a file of bills out of (1) Gill V. Bright, 6 Monroe, 130. (2) Stokes V. Stukey, 1 M'Curd, 662. (3) Bonner v. Boyd, 3 Harris & Johnson. 278. (4) Haskins v. Torrence. 5 Blackford, 417. (5) Wheatley t-. "Waltis, 3 Harris A Johnson, 1. (6) Wonson v. Sayward, 13 Pickering, 402 ; and see Bash v. Sumner, 20 Penna State, 162. (7) Bournman t;. Boyer, 3 Binney,515; M'lvennon v. Grew, 2 Watts, 362; Jones v. M'Dowell, 4 Bibb, 188. (8) Fisher v. Eotereau and Wife, 2 IMCord, 190; Dudley v. Robinson, 2 Iredell's Law, 141; Parker v. Lewis, 2 Greene's Iowa, 311 ; Pcnfold v. Westcote, 2 New, 336; See also Slowman v. Dutton, 10 Bingham, 402. (9) Beeket v. Sterrett, 4 Blackford, 499, 600. (10) Ally D. Noely, 5 Id., 200. (11) De.^ter v. Taber, 12 Johnson, 239. (12) Idol V. Jones, 2 Devereux, 162; Cock v, Weatherby, 5 Smedes & Marshall, 333. (13) Ogden v. Kiley, 2 Greer, 186. (14) Findldy v. Bear, 8 Sergeant & Bawle, 671. BROOKER V. COFFIK: BURTCH V, NICKERSON". 93 my dosk," that not being larcetiy.( I) Jn like ujanner, the following exprc,'*- siijns, "those two rascals killed my hogs and converted them to their own us(!," innuendo of felonious stealing ;(2) ^nd " H.'s boys did frequently come to our house and hire our negroes and take the dogs and go down into the river bottom and kill cattle no more theirs than mine;"(8) have been held not actionahle, as merely imputing a trespass : see, however, Yearly v. Ashley, 4 Harris & John- son, 8 14. And the case is similar, if the imputation amount merely to a breach of trust; as to charge one with stealing wool-filling sent to his own house to be woven, which would not be a felony ; (4) or, to say, "J. M. was an United Irishman, and got the money of the United Irishmen into his hands and ran away with it, and is now a rich man at P. ;"(5) or to charge one with embez- zling goods, because that implies the wrongful appropriation and use of what came rightfully to possession ;(6) these are not actionable in themselves, because they import a breach of trust. To charge a churchwarden with steal- ing the bell-ropes of the church of which he was warden, is not actionable, because in law the possession is in him ; but a charge of stealing bell-ropes generally, is. (7) To say that a " library has been plundered by C," is not in itself actionable, because though denoting a wrongful acquisition, it does not sufficiently charge a felony ;(S) and the same may be said of an expression like this : " D. must settle for some of my logs he has made away with." (9) With regard to charges of robbery, see cases cited below. (10) A charge against a post-master of taking money out of a letter, put into the post-office by the de- fendant, and appropriating it to his own use, and of keeping and embezzling letters is actionable, because the offence is indictable by statute and imparts moral turpitude ;(I1) and for the same reason, a charge of robbing the United States Mail, is actionable. (12) 4. Forgery. — A general charge of forgery, or a distinct imputation of that which is forgery at common law, or by statute, is actionable ;(13) but a charge of forging that of which the forgery is not indictable, as of a letter, is not actionable ;(14) in Alexander v. Alexander, 9 Wendell, 141, however, it was held that a charge of forgery, understood to relate, not to felonious forgery, but (1) Blanohard v. Fisk, 2 New Hampshire, 398. (2) Sturgenegger u. Taylor, 2 Brevard, 480, (3) Porter, et ex. v. Hughey, 2 Bibb, 232. (4) Haeon and Wife v. Smith, 4 B. Monroe, 385. (5) M'Clurg V. Ross, 5 Binney, 218; See also, Thompson v. Bernard, 1 Campbell, 48. (6) Caldwell v. Abbey, Hardin, 529 ; Taylor v. Kneeland, 1 Douglass' Michigan, 68. (7) Jackson v. Adams, 2 Bingham's N. C, 402. See also Hall v. Hawkins, 5 Humphreys, 367, 360. (8) Carter v. Andrews, 16 Pickering, 1, 9. (9) Brown v. Brown, 14 Maine, 317. (10) Rowcliff t'. Edmonds and Wife, 7 Meeson A Welsby, 12; Slowman v. Button, 10 Bing- ham, 402 ; Tomlinson v. Brittlebank, 4 Barnewall & Adolphue, 630 ; Russell v. Wilson, 7 B. Monroe, 261. (11) Hays V. Allen, 3 Blackford, 408. (12) Jones v. Chapman, 5 Id., 88. (13) See Jones ». Heme, 2Wil8on, 87; Nichols u. Hays, 13 Connecticut, 156, 162; Arnold, v. Cost, 3 Gill &, Johnson, 220 ; Atkinson v. Reding, 6 Blackford, 39 ; Andrews v. Woodmansee, 15 Wendell, 232. (14) Jackson v. Weisiger, 2 B. Monroe, 214. 94 SLANDER. to the forgery of a name to a petition to the legislature of such a character as would make a misdemeanour, was actionable. 5. Counterfeiting is a species of crimen falsi, and involves a moral turpitude, and is indictable, and therefore a charge of it, is actionable. To say " you are a counterfeiter," without more, is actionable. (1) Where a statute makes it in. dictable, knowingly to pass counterfeit money, a charge of passing countei-feit money, with an averment of knowledge, would be actionable, but not without it. (2) 6. Perjury. — " In order to constitute perjury, there must be a ' lawful oath administered in some judicial proceeding.' False swearing in a voluntary affi- davit made before a justice of the peace, before whom no cause is depending, is not perjury, nor can it be punished by indictment:" per Tilghman, G. J-(3) " The legal idea of perjury," says Minor, J., (4) "necessarily includes the sev- eral circumstances constituting the offence. The charge of being forsworn, or of having taken a false oath, unless connected by some necessary reference to the other circumstances constituting the offence, does not to common apprehen- sion produce the conclusion that a perjury has been committed." The ques- tion, therefore, whether a charge of false swearing is or is not actionable, depends upon whether it appears from the words themselves, or from the cir- cumstances connected with them and averred in the introductory matter, that the charge related to an oath in some judicial proceeding, or necessarily conveyed to the mind of the hearer an imputation- of perjury : and all the eases go upon this distinction. (5) And hence, if the words were spoken with reference to a certain trial alleged in the declaration, it is a good defence to show that the plaintiff was not sworn on that trial. (6) Words making a general charge of "perjury," are actionable in themselves, without any colloquium ;(7) unless accompanied with such reference or explanation as shows that legal perjury was not possible, or was not intended ;(8) and so are words that necessarily imply an imputation of perjury by referring to false swearing in a judicial proceed- ing, or to such false swearing as is indictable. Accordingly these expressions have been held to be actionable, without a colloquium : " You swore false at the trial of J. ;"(9) or "I had a law suit with T. G. D. about a hog, and T. S. (the plaintiff) swore falsely against me, and I have advertised him as such. "(10) or " you swore false in two particulars in court ;"(11) or " he has sworn false to my injury six or seven hundred dollars ;"(12) or " he has sworn to a lie, and (1) Thirman v. Matthews, 1 Stewart 384; Howard v. Stephenson, Mill's Constitutional, 408. (2) Church v. Bridgman and Wife, 6 Missouri, 191, 194. (.3) Shaffer v. Kintzer, 1 Binney, 637, 542. (4) Taylor v. Casey, Minor, 268, 261. (6) See Stewart v. Cleaner, 1 Harrington, 337; Sheely v. Biggs, 2 Harris & Johnson, 363; Beswick v. Chappel, 8 B. Monroe, 486. (6) Snyder v. Degant, 4 Indiana, 579. (7) Hopkins «. Beedle, 1 Caines, 347, 349 ; Green v. Long, 2 Id., 91 ; Lee and Wife r. Robert- son, 1 Stewart, 138 ; Harris v. Purdy, Id., 231 ; Commons v. Walters, 1 Porter, 377 ; Hall v. Montgomery, 8 Alabama, 510, 614; Waggstaff ii. Ashton, 1 Harrington, 503. (8) Mahan v. Berry, 5 Missouri, 21 ; 1 Roll. Abr. Act. on case Y. 41. (9) Fowlev. Bobbins, 12 Massachusetts, 498. (10) Magee V. Stark, 1 Humphreys, 606. (11) Hamilton v. Dent, 1 Haywood, 116. (12) Jacobs V. Fyler, 3 Hill's N. Y., 572. BROOKEB V. COFFIN: BURTCH V. NICKEBSON. 95 done it meaningly to cut my throat ;"(1) and the following, as implying an in- dictable perjury ; " you swore to a damned lie and you know it, for which you now; stand indicted;" (2) and words stating that the plaintiff swore falsely, and that the defendant will attend the grand jury about it;(3) and words stating an intention to commence a suit against the plaintiff for perjury. (4) Words charging the plaintiff with having sworn false on a certain trial before a justice of the peace, are actionable; (5) and it has been held that a charge of swearing false " on a trial, or the trial of a case between such and such persons, before Esquire or Squire such an one," was actionable, with a colloquium laid and proved that the person named was a justice of the peace ;(6) and in another case, that such words would not be actionable with averment and proof of that fact, the term 'squire not sufficiently importing a justice of the peace ;(7) how- ever, in other cases, the following words, " I cannot enjoy myself in a meeting with Sherwood, for he has sworn false, and I can prove it ; and if you do not believe it, you can go to Esquire Bassett's and see it, in a suit between James L. Sherwood, plaintiff, and Richard P. Brown, defendant," were held to be ac- tionable, unaided by a colloquium ;(8) and so were the words "you swore to a lie to-day, in a case tried before J. T. Esquire, against D. D., for killing a dog, and you offered to swear to a lie before," in M Donald v. MurcMson, 1 Deve- reux, 7 ; and " you have taken a false oath against me in a suit before Squire H., and swore me out of some money," innuendo of a suit before H., Esquire, in Call V. Foreman, 5 Watts, 33 1 ; and in the last of these it was decided that " Esquire," in a colloquium or innuendo, is sufficiently a designation of one as justice of the peace, that title being one commonly used : and upon the whole it would seem that if a trial of a judicial kind be referred to in the words, the title of Esquire will be a sufficient description of a justice of the peace, to make the words actionable in themselves. [So, "you swore a lie and it is in black and while in Westmoreland County ; you swore a lie and it is on record in Greensburgh," was held enough in Bricker v. Potts, 12 Penna. State, 202 ; the court observing that Greensburgh, was well known by the bystanders to be the county town of Westmoreland, and the place where courts were held.] But where it is not made to appear by a colloquium that the words had reference to an oath in a judicial proceeding, or the colloquium shows that they were said in regard to a voluntary affidavit before a magistrate, or to some other proceeding before him not judicial, or before a tribunal not having jurisdiction, or in a matter not material to the issue, a mere charge of false swearing, as to say " he has sworn falsely," or "he has sworn to a lie," or "he has taken a false oath," or "he is a forsworn man," is not actionable, nor would an innuendo of perjury make itso;(9) nor are the words, "He swore a false oath before 'Squire Andrews, (1) Coons V. Robinson, 3 Barbour's Supreme Court, 626, 632. (2) Pelton V. Ward, 3 Caines, 73. > (3) Oilman v. Lowell, 8 Wendell, 573. (4) Fox V. Vanderbeck, 5 Cowen, 513, 515. (5) Wilson V. Harding, 2 Blackford, 241. (6) Canterbury v. Hill, 4 Stewart & Porter, 224. (7) Dalrymple v. Lofton, 2 Spear, 588; S. C, 1 M'Mullan, 112. (8) Sherwood ii. Chaee, 11 Wendell, 38. (9) Holt «. Sobolefield, 6 Term, 690; Hall i;. Weedon, 8 Bowling A Ryland, 140 ; Shaffer?;. Kintzer, 1 Binney, 537, 541; Parker ti. Spangle and Wife, 2 Id., 60; Barger v. Barger, 18 Penn. 96 SLANDER. and 1 can prove it," nor " He has taken a false oath in 'Squire Jamieson's court," nor " He swore to a lie before 'Squire Lamkin," actionable, without a colloquium referring them to a judicial proceeding before the magistrate.(l) But if there be a colloquium referring the discourse to a trial in court or before a justice of the peace, or other judicial ofSoer, or arbitrators, where testimony is given on oath, and where perjury may be committed, a charge of false swear- ing is actionable, as, to say "he swore falsely," or "he swore a lie," or "you took a false oath," or " what he has sworn to is a lie. "(2) or to cry out while a witness is giving testimony in court, " you have sworn a manifest lie," or " That is false," •"! believe it is false;"(8) and whenever the language is thus in itself not actionable, and must be laid with a colloquium, the colloquium becomes a substantive part of the cause of action, and must be proved as laid.(4) In Connecticut, a majority of the court were of opinion that false swearing in proceedings before an ecclesiastical tribunal was perjury, and therefore that an imputation of it was slanderous and actionable; (5) but this point has been decided in an opposite manner in Pennsylvania. (6) With regard to the materiality of the testimony necessary to make a charge of false swearing slanderous, the New York cases, at one time, had fallen into some apparent confusion : but the principle upon the subject, appears to be as follows : If the defendant, referring generally to some previous judicial pro- ceeding, with which the bystanders are not shown to be exactly acquainted, say that the plaintiff swore falsely, it will amount to a charge of perjurj' and will be actionable, without reference to the consideration whether the false oath was or was not in a point material to the issue ;(7) for, as a general rule, it is to be intended that what a witness has sworn to, in a judicial proceeding, is material, and the hearers cannot be expected to know the evidence given on trials which State, 492; Hopkins v. Beedle, 1 Caines, 347; Vaughan k. Havens, 8 Johnson, 109; Pratt v. Price, 11 Wendell, 127; 11 Humphreys, 214; Watson i-. Hampton, 2 Bibb, 319; Martin c. Melton, 4 Id., 99; Beswick v. Chappel, 8 B. Monroe, 486 ; Power v. Miller, 2 M'Cord, 220; Robertson v. Lea and Wife, 1 Stewart, 141, 143; Hall v. Montgomery, 8 Alabama, 510; Cum- mins V. Butler, 3 Blackford, 190 ; Roclla v. Follon, 7 Id., 377 ; Fitzsimmons v. Cutler, 1 Aikens, 331 ; Darling v. Banks, 14 Illinois, 46; People v. Collins, 1 Michigan, 138. (1) Stafford v. Green, 1 Johnson, 506; Ward v. Clark, 2 Id. 10 ; Ashbell v. Witt, 2 Nott & M'Cord, 364. (2) Rue V. Mitchell, 2 Dallas, 58; Crookshank v. Gray, 20 Johnson, 344; M'Kinly v. Robb, Id., 351, 355; Butterfield v. Buffum, 9 New Hampshire, 156; Sanderson c. Hubbard, 14 Ver- mont, 462, 468; Lyman v. Wetmore, 2 Connecticut, 42, n. ; Harris v. Purdy, 1 Stewart, 231; Morgan v. Livingston, 2 Richardson, 674. (3) Kean v. M'Laughlin, 2 Sergeant & Rawle, 469; Cole i'. Grant, 3 Harrison, 328. (4) Ashbell v. Witt, 2 Nott & M'Cord, 364; Aldrich v. Brown, 11 Wendell, 596; Emery •;. Miller, 2 Denio, 208 ; Coons v. Robinson, 3 Barbour's Supreme Court, 626, 632. (6) Chapman v. Gillett, 2 (lonnecticut, 40. (6) Harvey v. Boies, 1 Pennsylvania, 12; Dictum, per Tilghman, C. J., in M'Millan v. Birch, 1 Binney, 178, 186. (7) Stone v. Clark, 21 Pickering, 61 ; Butterfield v. Buffum, 9 New Hampshire, 156, 163 ; Tenney v. Clement, 10 Id., 62, 68 ; Harris v. Purdy, 1 Stewart, 231 ; Ramsey v. Thornberry, 7 B. Monroe, 475; Wilson v. Harding, 2 Blackford, 241; Jacobs v. Tyler, 3 Hill's N. Y., 572; Coons V, Robinson, 3 Barbour's Supr. Court, 526 ; and see the Chancellor's opinion in Powers V. Price, 16 Wendell, 450, 464. BROOKEB V. COFFIN: BURTCH V. KICKEBSON. 97 they have not been connected with ; and the injury consists in the fact that the defendant ostensibly charged the plaintiff with perjury, and it is the eflFect of the words on the hearers that is to be considered. The defendant, however, as is remarked in the first of these cases, may at the time of charging the plaintiff with false swearing, add, that it was in a matter irrelevant and imma- terial, which would show that a charge of perjury was not made; there is no doubt, also, that the reference to the testimony may be so precise and definite, and the testimony itself be so fully before the hearers at the time the words are uttered, that they can perceive that it is immaterial evidence which the defend- ant pronounces to be false ; and in such a case, a charge of false swearing will not be actionable. Thus, if while the plaintiff is giving his testimony to a cause, the defendant cries out, at a particular point, " That is false," or " It is a lie ; he is swearing to a lie,"(l) or while he is testifying, says, "Every word you have sworn is false," or says again, immediately afterwards, and while in the same house, the plaintiff " has sworn to a lie, and I can prove it;"(2) or if the defendant, in saying, in relation to a previous trial, " the plaintiff swore to a lie," is proved to have been understood as referring to a particular individ- ual part, and to nothing else ;(3) in all such cases, the materiality of the evi- dence referred to, becomes of importance, and if the defendant prove that the particular part of the evidence alluded to, or the whole evidence in the case, was immaterial and irrelevant, the action will not be sustained. It is enough, however, if the fact form a material circumstance in a chain of legal evidence. (4) These distinctions have sometimes been overlooked, and it has been said, gen- erally, that immateriality in the evidence would be a defence. (5) Where im- materiality would be a defence there seems to be no doubt that the burden of showing that the evidence referred to was immaterial, rests on the defendant.(6) There is, also, no question, that the want of an allegation of materiality, in the declaration, in the colloquium, which avers the trial and evidence, as also the want of an allegation of the justice having jurisdiction, and of the plaintiffs having been legally sworn, cannot be objected after verdict. (7) In Arkansas, by statute it is actionable to charge a person with swearing falsely, whether the conversation refer to a judicial proceeding or not. (8) And while the charge of a specific felony, or indictable crime, will be action- able, it seems to be equally settled that a general imputation of having com- mitted a felony, or a crime involving disgrace and punishment, will be actionable ; (1) M'Claughry v. Wetmore, 6 Johnson, 82; BuUoek v. Koon, 9 Cowen, 30 ; S. C. 4 Wendell, 531 ; Hutchins v. Blood, 25 Id., 413. (2) Ross r. Rouse, 1 Wendell, 475. (3) Crookshank v. Gray, 20 Johnson, 344. (4) Hutchins v. Blood, 25 Wendell, 413. (5) Dalrymple v. Lofton, 1 M'Mullan, 112, 118. (6) Jacobs V. Fyler, 3 Hill's N. Y., 572, 574; Coons v. Robinson, 3 Barbour's Supreme Court, 626, 630, 631; -which consider the Chancellor's opinion in Power u. Price, 16 Wendell, 450, 454. as overruling that of the Supreme Court in S. C, 12 Id. 500. (7) Niven v. Munn, 13 Wendell, 48 ; Chapman v. Smith, Id., 75 ; Sherwood v. Chaoe, 11 Id., 38; Dalrymple w. Lofton, 1 M'Mullan, 112, 117; Harris ». Purdy, 1 Stewart, 231; Commons d. Walters, 1 Porter, 377, 384; Wilson v. Harding, 2 Blackford, 241; Magee v. Stark, 1 Hum- phreys, 506; Palmer v. Hunter, 8 Missouri, 512. (8) Act of 1837, Eev. St,, 720 ; Carlock v. Spencer and Wife, 2 English, 22. VOL. I. — 7 98 SLANDER. as to say, '< You have been cropped for felony,"(l) or, "he is a convict; he was in the penitentiary ;"(2) or, "he is a returned convict ;"(3) or, "You have committed an act for which I can transport you;"(4) or, "You have done things with the company for which you ought to be hanged, and I will have you hanged before the 1st of August. (5) The imputation of an indictable crime committed out of the jurisdiction of the state where the words are spoken, or the suit is brought, will be actiona- ble ;(6) but unless it be an indictable oflFenoe at common law, it must be shown to be indictable in that state ;(7) and if not indictable where alleged to have been committed, the charge will not be actionable because the offence is indict- able where the words are uttered or sued on. (8) To say that one committed a penitentiary oflFenoe, but that he was insane at the time he committed it, is not actionable. (9) The right of action for slander is transitory; and actionable words spoken in another state, imputing a crime indictable by common law or by any statute shown to exist where the oflFenoe is said to have been committed, may be sued upon, wherever the parties are. (10) But although an indictable crime is made the test, it is undoubtedly a mis- take to suppose, as was done in Harvey v. Boies, 1 Penrose & Watts, 12, 14, and Daht/mple v. Lofton, 1 McMuUan, 112, 118, that the ground of action is legal danger, and not social disgrace. " The gravemen in an action of slander," says Henderson, J., Shipp v. M' Craw, 3 Murphey, 463, 466; "is social detjradalion." The risk of punishment, and the rule to test the question whether the words be or be not actionable, to wit, " does the charge impute an infamous crime," is resorted to, to ascertain the fact, whether it be a social degradation, and not whether the risk of punishment be incurred. So in East- land V. Caldwell, 2 Bibb, 21, 23, it is said " The action is not exclusively founded upon the hazard of incurring a criminal prosecution, but upon the real or supposed injury to his character." See also Van Ankin v. Westfall, 14 Johnson, 233, and note to Fowler v. Dowdney, 2 Moody & Robinson, 120. II. Words imputing to another an offensive disease. It is generally agreed that words are actionable which impute some personal quality or conditio)! which would exclude a man from society, and lead persons toavoidhim; as, for example, a loathesome and infectious disease. (11) In Til- lers V. Monsley, 2 Wilson, 403, 404, it seems to have been thought by Bathurst and Gould, Js., that a charge of having the itch, if written or printed, and pub- (1) Wiley V. Cambell, 5 Monroe, 396. (2) Smith V. Stewart, 5 Barr, 372. (3) Fowler v. Dowdney, 2 Moody & Kobinson, 119. (4) Curtis V. Curtis, 10 Bingham, 477 (5) Francis v. Roofe, 3 Meeson & Welsby, 19J. (6) Smith V. Stewart, 5 Barr, 372 ; Van Anliin v. Westfall, 14 Johnson, 233; Cefat v. Burch, 1 Blackford, 400; Parke v. Blackiaton, 3 Harrington, 373 ; See Ilaight v. Morris, 2 Halsted, 289. (7) Shipp V. M'Craw, 3 Murphey, 463 ; Wall v. Hoskins, 5 Iredell's Law, 177. (8 J Barclay v. Thompson, 2 Penrose & Watts, 148. (9) Abrams v. Smith, 8 Blackford, 96. (10) Stout ». Wood, 1 Blackford, 7; Offut ti. Earlywine, 4 Id., 460; Linville «. Earlywine, Id., 470. (11) Dicta in Colby v. Reynolds, 6 Vermont, 489, 494; Kinney v. Hosea, 3 Harrington, 397, 401 ; Burtch v. Nickerscn. BHOOKEE V. COFFIN: BTJBTCH V. NICKERSOjST. 99 lished, would be actionable ; but not if spoken. It appears from the older cases that imputations of having the leprosy or lues venerea have been deemed actionable. (1) In Bhodworth v. Gray, 8 Scott's New, 9, also, it was decided, that to charge a person with having, at the time, the veneral disease, is action- able ; " words imputing to another that he is at present afflicted with a dis- gusting and contagious disease are actionable in themselves/' said Tindal, C. J., '' inasmuch as they import a present unfitness to be admitted into society.* And the same thing was decided in Watson v. M Carihy, 2 Kelly, 57, and in Nichols V. Guy, 2 Carter's Indiana, 82, in regard to an imputation of having the gonorrhoea. But to charge a person with having had a disease of this nature, is not actionable. (2) [And where the words are " S. G. had the clap," an innu- endo explaining it as of the present time, is unavailing, as beyond the office of an innuendo.] III. Words tending to injure another in his official or business character. The above definitions apply to cases in which words are actionable generally, that is, when spoken of all men indifierently. But in addition to this, any defamatory words that necessarily or naturally, tend to injure a man in his profession, ofiSce, or business, are actionable. (3) According to the distinction ascertained by Bayley, B., in Lumhy v. Mlday, 1 Crompton & Jervis, 301, and approved in Ayre v. Graven, 2 Adolphus & Ellis, 2, and Jt/nes v. Littler, 7 Meeson & Welsby, 428, and Southee v. Denny, 1 Exchequer, 196, the words, to be actionable, must impute some quality which necessarily impairs the plaintiff's professional . or business character, as insolvency to a merchant, or drunkenness to a clergyman, or else must be spoken of him in his profession or business : Bailey, B., remarks, that in the definition of De Grey in Onslow V. Home, 3 Wilson. 177, 186, "that words are actionable when spoken of one in an office of profit, which may probably occasion the loss of his office, or when spoken of persons touching their respective professions, trades and busi- ness, and do or may probably lead to their damage ;" the word < probably,' is too indefinite and loose, unless considered as equivalent to ' having a natural tendency to,' and confined within the limits of showing the want of some neces- sary qualification, or some misconduct in the office. " Every authority," he adds, " which I have been able to find, either shows the want of some genernl requisite, as honesty, capacity, fidelity, &c., or connects the imputation with the plaintiff's office, trade or business :" and accordingly he decided, that to say of the clerk of a gas company, "You are a fellow, a disgrace to the town, unfit to hold your situation, for your conduct with whores, &c.," was not actionable, because " the imputation does not imply the want of any of those qualities which a clerk ought to possess, and because the imputation has no reference to his conduct as clerk. (4) And in like manner it was adjudged in Brayne v. Cooper, 5 Meeson & Welsby, 249. that is to say of a stay-maker, in his trade and business, that the business of a stay-maker does not keep him, but the prostitution of a female in the shop, is not actionable, for the words (1) Taylor v. Perkins, Cro. Car. 144; Crittal v. Horner, Hob. 219. (2) Carslake v. Mapledoran, 2 Term, 473; Nichols v. Guy, 2 Carter's Indiana, 82. (.3) See per Tilghman, C. J., in M'Millan v. Birch, 2 Binney, 184; Johnson . Lawson, 5 Bingham's N". C, 212. (5) Backus v. Richardson, 5 Johnson, 476, 483. (6) Burtch V. Nickerson, 17 Id., 217. (7) 3 Sandford, 305. (8) Rath V. Bmigh, 6 Wendell, 407, 409. (9) Summer v. Utiey, 7 Connecticut, 258, 259, 262. (10) Johnson u. Robertson and Wife, 8 Porter, 486 ; Seoor v. Harris, 18 Barb. 425. (11) Foster v. Small, 3 Wharton, 138, 142. (12) Ayre v. Craven, 2 Adolphus k Ellis, 2 ; See Southee v. Denny, 1 Exchequer, 196. (13) Bush V. Cavanaugh, 2 Barr, 187, 189. (14) Boydell v. Jones, 4 Meeson & Welsby, 446. (15) Day v. BuUer, 3 Wilson, 69. (16) Foot V. Brown, 8 Johnson, 64; See also Tobias «. Harland, 4 Wendell, 537, 541. (17) flaw V. Selden, 6 Barbour's S. Ct., 416. 102 S LAN DEE. to say of one who is an attorney, but not of him in his business of attorney, that " he has defrauded his creditors, and has been horse-whipped off the course at Donoaster," is not actionable, because it does not touch him in his pro- fession. (1) To charge a clergyman with drunkenness or incontinence, is actionable, and the imputation need not be connected with a colloquium of his profession and calling. (2) Anything which assails the integrity or capacity of a judge is actionable. To charge a judge with that which would not be a cause of impeachment or address, would be no more actionable than would be the same charge against a private citizen ; but to charge him, either by words or in writing, with lacking capacity as a judge, or with having abandoned the common principles of truth, or been guilty of corruption in office, by corrupt appointments to office, or generally with having done what would remove him from his seat, is action- able.(.3) Similar principles apply to every kind of official station. To say of a post- master, in respect of his official character, " he would rob the mail for one hundred dollars," is actionable. (4) But as the gist of the action consists in injury to official character, the words to be actionable, must apply to the plain- tiff's character or conduct in office, and must impute some official incapacity or misconduct. To say of a sheriff, in relation to his office of sheriff, " that moneys which he had collected on execution he had taken and converted to his own use, and that they could not be got out of his hands," is actionable, because it is a charge of malpractice in his office; (5) on the other hand, to say of a justice of the peace, " Squire 0. is a damned rogue ;" or " There is a combined company to cheat strangers, and Squire Van T., has a hand in it ; K. A., J, G., and Squire Van T. are a set of d d blacklegs," &o., is not actionable, be- cause such remarks do not relate to official character or conduct, or impute any neglect of official duty ; (6) and so far has this limitation been carried, that it has been held that if words charging a justice of the peace with corrupt con- duct, are spoken in relation to a cause in which be had no jurisdiction, they are not actionable; (7) and for a similar reason, words relating to official con- duct are not actionable if the office has ceased at the time the words are spoken ;(8) [and so words spoken of a person, though reflecting upon him in a professional character, if spoken as of a time before that when such character begins or is assumed, are not actionable ; as for example to say of a clergyman, that he was in trade and cheated, &c., and is, therefore, not fit to be a clergy- man. ](9) In regard to words of a member of the legislature, the case of Hogg V. Dorval, 2 Porter, 212, is directly in point with Onslow v. Home, and is (1) Doyley v. Roberts, 3 Bingham's N. C, 835 ; See also Philips >;. Jansen, 2 Espinasse, 624. (2) Chaddock v. Briggs, 13 Massachusetts, 248; M'Millan v. Birch, 1 Binney, 178; Dema- rest V. Haring, 6 Cowen, 76 ; See, however, ante page, 100, and Galwey v. Marshall, 9 E.\che- qucr, 294, (3) Robbins v. Treadway, Ac, 2 J.J.Marshall, 640; Hook u. Hackney, 16 Sergeant A Eawle, 385, 389. (4) Craig V. Brown, 5 Blackford, 44; See M'Cuen v. liudlum, 2 Harrison, 12. (5) Dole V. Van Rensselaer, 1 Johnson's Cases, 330. (6) Oakley v. Farrington, 1 Johnson's Cases, 129 ; Van Tassel v. Capron, 1 Dcnio, 249. (7) Oram v. Franklin, 6 Blackford, 42. (8) Forward v. Adams, 7 Wendell, 204. (9) Hopwood V. Thorn, 8 Man., Gran. & Soot, [65 E. C. L.] 293. BROOKER V. COFFIN: BURTCH V. NICKEBSON. 103 decided upon it ; and upon the ground taken in it, that words to be actionable in such a relation must refer to past conduct, and charge an actual breach of duty, or the commission of some wrong, and that an expression of opinion respecting another's inclinations or intentions is not actionable, it was decided that saying of a member elect of the legislature, " he is a corrupt old tory," is not actionable. In Mai/rant v. Richardson, 1 Nott & M'Cord, 348, 350, it was decided that words imputing to one who was a candidate for Congress, that his understanding was impaired or his mind weakened by disease were not actionable ; and it seemed in that case to be thought, that words imputing defect of ahility only, in relation to offices either of profit or credit, were not actionable. When the words are spoken or written, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, they will not be action- able in themselves, unless they import that the plaintiff is guilty of deceit or mal-practice in the making or vending of them.(l) To say what is disparaging of a tradesman's goods but does not reflect upon his character, is not action- able, without special damage. (2) IV. Words producing special damage. Where words are not actionable in themselves, or as necessarily tending to pro- duce damage, the plaintiff must allege and prove that by reason of the speaking, he has sustained some damage ; and the damage must be of a pecuniary nature. (3) As to the precision with which, according to the circumstances, the damage must be laid in the declaration, see Hartley v. Herring, 8 Term, 130, 133. An allegation that " divers of his neighbours have refused to have any transaction, acquaintance, or discourse with him," or, that the plaintiff was thereby greatly injured in his trade and business, and divers citizens, since the speaking and publishing of the words, have refused to purchase, &c., from him, and so the plaintiff is deprived of great gain and profit ;(4) is not a sufficient allegation of special damage, but is merely a general allegation of damages ;(5) but the allegation that a particular person would not deal with the plaintiff', a commis- sion merchant, was held sufficient special damage, in Storey v. Challands, 8 Carrington & Paine, 234 ; and that certain creditors, naming them, were induced, by a slanderous report that the plaintiff had run away, to proceed against him and break him up ; Prettyman v. Shochley, 4 Harrington, 112. It certainly, however, is not all words occasioning damage that are action- able; there must be something wrongful in them; at least they must be such as a man has not a clear right to utter. What class of remarks are, in their nature, so far not lawful that they are actionable when occasioning damage, the cases have not defined : such as reflect upon the moral character or conduct of the person, probably, always fall within the range. In a case where the ques tion related to the imputation of an impaired mind to one who was a candidate for Congress, the court said "the words must be of an opprobrious nature, and such as are calculated to lessen the person of whom they are spoken, in the opinion of the community ; but where they are perfectly justifiable or innocent, no action will lie, although some injury may have resulted from them;(6) and (1) Jackson t). Russell, 4 Wendell, 537, 543. (2) Evans v. Harlow, 5 Queen's Bench, 624. (3) Beach «. Ranney, 2 Hill's N. Y., 310, 314.' (4) Tobias v. Harland, 4 Wendell, 537, 640. (5) Hall V, Montgomery, 8 Alabama, 510, 515. (6) Myrant v. Richardson, 1 Nott & M'Cord, 348, 353. 104 SLANDER. it seems to have been considered, there, that the expressions of opinion about a man's abilities or accomplishments, though occasioning damage, could not be actionable. In Ilalloch v. Miller, 2 Barbour, 630, where the plaintiff had been charged with being engaged in serving writs upon anti-renters, whereby special damage was occasioned to his business, the court said, that as such a charge did not import either an illegal or an immoral act, it was not actionable though accompanied by special damage; and that an action of slander would not lie for words imputing an act both legal and praiseworthy, though a loss or injury might be the consequence of the words. The damage which is the cause of action, must have arisen before suit brought ;(1) and it was held in that case, that words spoken after suit brought, were not admissible for any purpose, because if they were not followed by special damage they were irrelevant, and if they were, a new action was the proper course. The damage must be such as naturally and immediately, or legally, results from the speaking of the words by the defendant ;(2) the exist- ence of reports of the same matters imputed by the defendant, whereby loss is occasioned, will not be sufficient, unless the report be traced to the defendant, and the jury be shown to have arisen from his speaking. (3) Damages occa- sioned by the wrongful acts of others, which are themselves actionable, will not sustain a suit for slander; Vicars v. Wikocks, 8 East, 1 ; and though in Moody V. Bal-er, 5 Cowen, 351, a majority of the Court (Savage, Chief Justice, dis- senting,) denied this principle and case, and held that the violation of a con- tract of marriage by a third person in consequence of the slander was legal damage; yet the principle is again fully recognised m Beach y. Ranney,'! Hill's N. Y., 310, which seems to destroy the authority of Moody v. Baker. So, the unauthorized repetition of the words by another, which would itself be an actionable offence, will not be special damage to sustain an action ;(4) but where the words were repeated by the request and authority of the defendant, and thereby occasioned damages, or were repeated innocently and without intent to defame, as under some circumstances might be the case, so that the repetition would not be a substantive cause of action, it was thought in Keen- lioltz V. Backer, 3 Denio, 346, 352, that they might be. No evidence can be received ot any loss or injury which the plaintiff has received by the speaking of the words unless it be specially stated in the declaration. (5) The most usual instances in which the principle of special damage has been applied, are cases of imputing incontinence to an unmarried woman. Such an imputation has long been decided not to be actionable in itself, but courts, re- gretting this strictness, have shown an inclination to give redress by holding that slight damage would sustain an action. Accordingly although the allega- tion that the plaintiff has fallen into disgrace, contempt, and infamy, and lost her credit, reputation, and peace of mind, will not be sufficient ;(6) nor that she is shunned by her neighbours, &c.,(7) as being the loss of nothing of mea- surable pecuniary value ; yet an allegation of the loss of valuable hospitality (1) Keenholtz v. Becker, 3 Denio, 346, 349. (2) Beach v. Kanney, 2 Hill's N. T., 310, 314; See Knight v. Gibbs, 1 Adolphua 4 Ellis, 43. (3) Sewall v. Catlin, 3 Wendell, 291, 295; Hastings v. Palmer, 20 Id., 225. (4) Ward v. Weeks, 1 Bingham, 211, 215 ; Stephens v. Hartwell, 11 Metcalf, 542, 549. (5) Hallook D. Miller, 2 Barbour, 630. (6) Woodbury v, Thompson, 3 New Hampshire, 194. (7) Beach «. Ranney, 2 Hill's N. X., 310, 314. BBOOKER V. COFFIN: BtJRTCH V. NICKEESON. 105 and of a support or income derived from the bounty of others, will be suffi- cient ;(1) or of the loss of health, and the consequent incapacity of transacting business. (2) To this department, also, belong cases of what is called slander of title. An action for this is not properly an action for words spoken or written, but an action on the case for special damage sustained by reason of the speaking or publishing of the slander gf the plaintiff's title;(3) and the special damage must be alleged, circumstantially, in the declaration. (4) This action is in some respects, like an action of slander; and in others, like an action for malicious prosecution. On the one hand, as in an action for slander, the words which constitute the offence, must be set out exactly in the declaration. (5) And on the other, the action cannot be maintained without showing malice and want of probable cause; and in regard to this, it rests on very nearly the same ground as an action for malicious prosecution. If what the defendant said or did was in pursuance of a hona fide claim or colour of title, which he was asserting honestly, and especially, if he was acting under the advice of counsel, though his title proves not to have been perfect, he will not be liable. (6) See instances of this action in the cases cited below,(7) [and instances of actions denominated actions for slander, but which are in truth special actions on the case for the recovery of damages actually sustained by the plaintiff, in consequence of the false and malicious representations of the defendant affecting the plaintiff's property. " They do not," say the Court, in Trenton Insurance Co., v. Per- rine,(8) "fall within any recognized definition of slander or libel : they contain no personal imputation : they do not affect the character of other individuals or magistrates, but like any other tort they occasion damage to the property of the plaintiff and therefore they are actionable." Illustrations are given in the case last named, as of a publication by one newspaper of another newspaper that it is low in circulation inasmuch as it affects the sale and profits made by adver- tising, HernoU v. Stewart, 1 Espinasse ; or to throw discredit on a particular commodity in which a party deals : or to say of a ship " that she is broken and unfit to proceed to sea;" or to publish of a stage coach that "it is dangerous to travel in," &o. And see Swan v. Tappan, 5 Gushing, 110, where the action failed on pleadings rather than on principle. But special damages must be laid in these cases; Swan v. Tappan. But in many cases these expressions are published of the persons in the way of their buisness and tend so to injure them, and if not within the definition of slander or libel, are at least treated as part of those titles. Whether a corporation can sue or be sued for slander, see the Note to the next case where the matter is considered under the head of libel.] (1) Moore v. Meagher, 1 Taunton, 40; Olmstead v. Miller, 1 Wendell, 606; Williams u.Hill, 19 Id., 305. (2) Bradt v. Townley, 1.S Wendell, 253; Fuller t>. Fenner, 16 Barbour, 334. (3) Malaohy r. Soper, 3 Bingham's N. C, 371. (4) Bailey v. Dean, 5 Barbour's S. Ct., 297, 300; Dicta in Kendall v. Stone, 1 Selden, 14. (5) Gutsole V. Mathers, 1 Meeson & Welsby, 495; Hill v. Ward, 13 Alabama, Sll. (6) Hill V. Ward; Bailey v. Dean. (7) Hargrave v. Le Breton, 4 Burrow, 2422 ; Smith v. Spooner, 3 Taunton, 246 ; Pitt ». Donovan, 1 Maule k Selwyn, 439 ; KendaJl v. Stone, 2 Sandford S. Ct., 270, 283 ; and S. C, (overruling) 1 Selden 18. (8) 2 Zabriskie, 412. 106 LIBEL. LEGAL DEFINITION OP LIBEL. DISTINCTION BETWEEN THE ACTIONABLE NATURE OF WORDS SPOKEN AND WRITTEN. STEELE V. SOUTHWICK. In the Supreme Court of New York. ALBANY, AUGUST, 1812. [reported 9 JOHNSON, 214-216.] A. was a tvitness in a cause hetween B. and 0., and 0. afterwards printed and 'published the following words of A, " Our army swore terribly in Flanders, said Uncle Tobey ; and if Tohey was here now, he might say the same of some modern swearers. The man (meaning A.) is no slouch at swearing to an old story." In an action brought by A. for a libel, it was held that these words, if they did not import a charge of perjury in the legal sense, yet they were libellous, as they held up the plaintiff to contempt and ridicule, as being so thoughtless or so criminal as to be regardless of the obliga- tions of a ivitness, and therefore, as utterly unworthy of credit. Where Q. published a direct and positive contradiction of what a witness at a trial between B. and Q. had sworn that A. had said ; this was held not to be a libel, as it was not accompanied with any imputation of a crime in A. This was an action for a libel. The first count stated that the plaintiff was sworn, and examined as a witness, in a cause tried at the circuit, in Albany, in which this defendant was plaintiif, and Harry Croswell defendant ; that the plaintiff is a bookseller and stationer, in Albany, and has for a sign, a book-lettered "Bible;" and that the de- fendant, maliciously intending, &c., on the 5th December, 1809, printed, &c., in " The Albany Register," a certain false, &c., libel, of and con- cerning the plaintiff, &c., as follows: "Affidavits. Our army swore terribly in Flanders, said Uncle Toby ; and if Toby was here now, he might say the same of some modern swearers. The man at the sign of the Bible (meaning the plaintiff,) is no slouch at swearing to an old story," (meaning, &c.) The second count stated that the plaintiff was examined as a witness in a cause between the defendant and Croswell, and testified truly, &c. ; that the defendant had told him, the plaintiff, that he, the defend- STEELE V. SOUTHWICK. 107 ant, approved of Fox's maxim, to wit, " That the public was a goose, and that he was a fool who did not pluck a quill when he had an oppor- tunity." Yet the defendant, intending, &c., to cause it to be believed that the plaintiff, in giving the evidence aforesaid, was guilty of perjury, did on the 9th of January, 1810, publish, &c., a certain libel in "The Albany Register," as follows, to wit, " As complete evidence of his candour (meaning his Honour Mr. Justice Spencer, before whom the cause was tried), in the present case, for error there was none, I (the defendant) need only mention, that he told the jury, emphatically, that it was proved by Steele, that I had declared to him, that I approved of Fox's maxim, that the public was a goose, &c. ; that this was a very profligate sentiment, and that if they believed the testimony of Steele, they could not, in estimating damages, conceive anything due to the feelings of a man capable of entertaining it, for that such feelings could not be injured ; but while I acknowledge the correctness of this decision, and most sincerely and heartily concur in it, I am bound to declare, which I now do most solemnly, in the presence of an all-seeing God, my firm conviction, that I never made to Steele the declaration above stated. It is utterly impossible, from the barefaced absurdity, as well as from the abandoned profligacy, manifested by such a declaration, that I ever could have made it ; and how that man's (the plaintiflF's) imagination has wrought itself into a belief that I made it, is to me truly a subject of wonder, as it is of regret, that I find myself con- strained, by what is due to my own honour, thus publicly and solemnly to deny what he has solemnly and publicly sworn to." By means whereof, &c. There was a general demurrer to the whole bill, and a joinder in demurrer. The cause was submitted to the court, without argument. Per Curiam. The plaintiff in the first count, avers, that he had been called to testify, as a witness, in behalf of Harry Croswell, in a suit brought by the present defendant against the said Croswell, and that the defendant, afterwards, and with a view to injure the character and credit of the plaintiff, maliciously published the words stated in that count, in which the plaintiff is represented as swearing " terribly," and as being "no slouch at swearing to an old story." These words import that he swore with levity, and rashly, and inconsiderately, with- out due regard to the solemnity of the oath, or to the truth and accu- racy of what he said. If the words do not import perjury in the legal sense, they hold the plaintiff up to contempt and ridicule, as being so thoughtless, or so immoral, as to be regardless of the obligations becoming a witness, and, 108 LIBEL. therefore, to be utterly unworthy of credit. In this view, the words are actionable, for a writing published maliciously, with a view to expose a person to contempt and ridicule, is undoubledly actionable; and what was said to this effect, by the judges of the C. B. in Villers v. Mensley (Wills. 403), is founded in law, justice, and sound policy. The opinion of the court, in the case of Riggs v. Denniston (3 Johns. Cas. 205), was to the same effect ; and the definition of a libel is given by Mr. Hamil- ton, in the case of The People v. Croswell (3 Johns. Cas. 354), is drawn with the utmost precision. It is a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent towards government, magistrates, or individuals. (Vide Root v. King, 7 Cowen, 613.) To allow the press to be the vehicle of malicious ridicule of pri- vate character, would soon deprave the moral taste of the community, and render the state of society miserable and barbarous. It is true, that such publications are also indictable, as leading to a breach of the peace ; but the civil remedy is equally fit and appropriate, and as the jury assess the damages, it is, in most cases, the more desirable remedy, and one which gives most satisfaction. The second count does not appear to contain actionable matter. The defendant confines himself to a denial of the charge, and a vin- dication of himself, and as that denial is not accompanied with any im- putation of a crime to the plaintiff, or anything like malicious or wanton ridicule of him, it does not appear to be anything more than a lawful vindication. But as the demurrer is to the whole bill, the plaintiff is entitled to judgment. Judgment for the plaintiff It has long been settled, that there is a material difference between slander and libel, and that many things are actionable when written or printed, and made public, which would not be actionable if spoken. (1) " There is a marked distinction in the books between oral and written slander," says Bayley, J., in Clement v. Chivis, 9 Barnewall & Cresswell, 172, 174. " The latter is premeditated, and shows design ; it is more permanent, and calculated to do a much greater injury than slander merely spoken. There is an early case upon the subject, in which this distinction was adverted to, King v. Iiake, (Hardr. 470,) where the libel charged the plaintiff with having presented a (1) See Villers v. Motisley, 2 Wilson, 403, 404; Thorly k. Kerry, 4 Taunton, 365; M'Gregor V. Thwaites, 3 Barn wall & Creswell, 24, 33; Van Ness w. Hamilton, 19 Johnson, 349, 357; Stone r. Cooper, 2 Denio, 294, 299; Hillhouse ». Dunning, 6 Connecticut, 391,408; Colby r. Reynolds, 6 Vermont, 489 ; Shelton v. Nance, Ac, 7 B. Monroe, 128 ; Rice v. Simmons, 2 Harrington, 417, 422, 423 ; M'Corkle v. Binns, 5 Binney, 340, 349, 353.; Williams v. Karnes, 4 Humphrey.s, 9, 11; Obaugh V. Finn, 1 Arkansas, 110, 121. STEELE V. SOUTHWICK. 109 petition to the House of Commons, " stuffed with illegal assertions, inaptitudes, imperfections ; clogged with gross ignorances, absurdities, and solecisms." A Bpecial verdict was found ; and upon argument. Hale, C. B., held, that " although such general words spoken once without writing or publishing them would not be actionable, yet here they being written and published, which contains more malice, they are actionable." This appears to have been a cross action, arising out of the same dispute, as Lake v. King, (1 Saund. 120, 131. 1 Sid. 414;) but in the latter case it was held, that the action could not be maintained, on the ground that the alleged publication was a privileged communication. In a subsequent case, Cropp v. Tilney, 3 Salk. 225, Holt, 426, Holt, C. J., says, " scandalous matter is not necessary to make a libel ; it is enough if the defend- ant induces an ill opinion to be had of the plaintiff, or to make him contemp- tible and ridiculous." Some judges, indeed, have doubted the good sense of the distinction J for example, Mansfield C. J., in Thorly v. Kerry ; Best, C. J., in Archbishop of Tuam v. Robeson, 5 Bingham, 17, 21 ; Gibson, 0. J., in Deford V. Miller, 3 Pennsylvania, 103, 104 ; Williams, C. J., in Colby v. Rey- nolds, 6 Vermont, 489, 493 : yet many others have considered it well founded in reason, and have assigned the most satisfactory grounds for the distinction. " Words," says Tilghman, 0. J., in M' Clurg v. Ross, 5 Binney, 218, 219, « are often spoken in heat, in haste, and with very little reflection or ill inten- tion, and frequently forgotten or repented of as soon as spoken. But writing requires deliberation, and is therefore more injurious to the character attacked. We are apt to suppose that before a man reduces an accusation to writing, he has satisfied himself of the truth of it ; and if he has not satisfied himself, his conduct is certainly very reprehensible. Besides, the scandal is more perma- nent and more widely diffused. So that whether we consider the injury itself, or the mind of the person by whom the injury is committed, a libel is entitled to less allowance than a slander by words." In like manner, Hosmer, C. J., remarks in Stow v. Converse, 3 Connecticut, 325, 342. "It is because the im- putations are written, and may circulate extensively, and never be forgotten, that the law respecting libel is so di^erent as it is from the rules relative to verbal slander." See also remarks of Barlow, Senator, in Stone v. Cooper, 2 Denio, 294, 303; and see Fonville v. M'Nease, Dudley's Law, 303, 310, and RunJcie v. 3Iyer et at, 3 Yeates, 518, 519. "Scandals merely oral;" says Burke, " could spread little, and must perish soon. It is writing, it is print- ing, more emphatically, that imps calumny with those eagle wings, on which, as the poet says, 'immortal slanders fly.' By the press they spread, they last, they leave the sting in the wound." The legal description of a libel has been discussed in many cases, English and American. In Villers v. Monsley, 2 Wilson, 403, Wilmot, C. J., said " if any man deliberately or maliciously publishes anything in writing, concern- ing another, which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher :" and Bathurst, J., said, " the writing and publishing of anything which tends to make a man ridiculous or infamous :" and Gould, J., said, "the publishing anything of a man that renders him ridiculous, is a libel and action- able ;" and in the principal case, it will be observed that the court remark that what was said by the judges in this case is founded in law, justice, and sound policy. In Shipley v. Todhunter, 7 Garrington & Payne, 680, 689, Tindal, G. 110 LIBEL. J., said, that "any written communication which bears on the face of it any charge, or which tends to villify another is a libel." In Woodward v. Dows- ing, 2 Manning & Eyland, 74, Lord Tenterden, C. J., remarked that "in case of written slander whatever tends to bring a party into public hatred and dis- grace is actionable ;" and in the same case, Holroyd, J , said, " that which tends to disgrace is a libel " " Undoubtedly, to write of a man what will de- grade him in society, is actionable,'' said Bay ley, J., in Forbes v. King, 1 Dow- ling, 672, 674 : and in 3f Gregor v. Thwaites, 3 Barnewall & Cresswell, 24, 33, and Olement v. Oliivis, 9 Id. 172, the same judge declared the rule to be, that the publication of any written or printed matter, which tended to bring a man into hatred, contempt or ridicule, was actionable. In Parmiler v. Coup- land, 6 Meeson & Welsby, 105, 108, Parke, B., said "a publication without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule is a libel." In Steele v. Southwick, it will be seen that the definition submitted by Mr. Hamilton, arguendo, in The People v. Crosswell, is approved of, and declared to be drawn with the utmost precision. In Cooper v. Greeley, 1 Denio, 348, 359, this definition was attacked by the counsel, as being too much extended, but was sustained by the court ; and it was there said that " any written slan. der, though merely tending to render the party subject to disgrace, ridicule or contempt, is actionable;" and in Cooper v. Stone, 24 Wendell, 434, a libel was defined by Cowen, J., to be " a contumelious or reproachful publication against a person ; any malicious publication, tending to blacken his reputation, or ex- pose him to public hatred, contempt, or ridicule :" see also Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 515. But the generality of these descriptions has received some limitation, so far as that state is concerned, by the decision of the Court of Errors in Stone v. Cooper, 2 Denio, 294, where the judgment of the Supreme Court was reversed. In that case, the Chancellor stated a distinction between an actionable and an indictable libel. After acknowledging the wider range of liability for written than for spoken matter, he added, " Still, it is not every false charge against an individual, even when the same is deliberately reduced to writing and published to the world, which is suificient to sustain a private action to recover a compen- sation in damages for a libel. Some publications are deemed libellous so as to render the authors thereof liable to be punished criminally, in consequence of their tendencies to disturb the public peace, although no private injury will probably result to any one from such publications. Such are the cases of libels upon the dead, whereby the feelings of surviving relatives may be deeply wounded; the consequence of which would probably be attempts to inflict summary justice upon the authors of such libels if the laws had not provided the more peaceful remedy of a resort to a criminal prosecution. But to sus- tain a private action for the recovery of a compensation in damages for a false or unauthorized publication, the plaintiff in such action must either aver and prove that he has sustained some special damage from the publication of the matter charged against him ; or the nature of the charge itself must be such that the Court can legally presume he has been degraded in the estimation of his acquaintance or of the public, or has suffered some other loss either in his property, character, or business, or in his domestic or social relations, in conse- quence of the publication of such charge." In an early Pennsylvania case, it STEELE V. SOUTHWICK. Ill was said that, " any written or printed words, which render a man ridiculous, or throw contumely upon him, are actionable; but it is otherwise of words spoken ; and this distinction has been long settled;'' RunMe v. Mi/er et al, 3 Yeates, 518,519; and in M'CorJde v. Binns, 5 Binney, 364, Tilghman, C. J., defined a libel to be " any malicious printed slander which tends to expose a man to ridicule, contempt, hatred, or degradation of character." In Dexter et ux V. Spear, 4 Mason, 115, 116, Story, J., said that "any publication, tl e tendency of which is to degrade or injure another person, or bring him inio hatred, ridicule, or contempt, or which accuses him or her of a crime punisha- ble by law, or of an act odious and disgraceful in society, is a libel." The definitions adopted in some of the Tennessee cases are perhaps as satisfactory as any that have been offered : " Any malicious publication, expressed in printing, or writing, or by pictures or signs, tending to injure the character of an individual, or diminish his reputation, is a libel."(l) " A libel or written defamation is the injurious detraction of any one by writing or equivalent sym- bols. "(2) In Kentucky, in an early case, the rule was declared, that "words, when written, if they tend to degrade or disgrace, or to render odious or ridiculous the person of whom they are written, will be libellous and conse- quently actionable ; and this distinction (it was said) between written and verbal slander, is abundantly established by the most unquestionable authorities;" MGee V. Wilson 2 Bibb, 187, 188; and in Shelton v. Mincej &c., 7 B. Mon- roe, 128, this rule is confirmed and enforced. In South Carolina, it has been declared that " The essential ingredient of a libel is, that it should be a mali- cious publication ; and where the obvious design and tendency of such a pub- lication is to bring the subject of it into contempt and ridicule, it will be a libel, although it impute no crime liable to be punished with infamy ; (3) but that to be actionable, the written or printed matter " must be such, as, in the common estimation of mankind, is calculated to reflect shame or disgrace upon the person, or hold him up as an object of hatred, ridicule, or contempt;" Mayrant V. Richardson, 1 Nott & M'Oord, 848, 349 ; FonviUe v. M'Nease, Dudley's Law, 303, 310. In The State v. Farley, 4 M'Cord, 318, where the deflnitioQs of Mr. Hamilton and of Ch. J. Wilmot were approved, it was said that nothing but what is criminal, immoral, or ridiculous, can be libellous. In "Vermont, in Colhy V. Reynolds, 6 Vermont, 489, 493, the court said that, " a publication which renders a person ridiculous merely, and exposes him to contempt, which tends to render his situation in society uncomfortable and irksome, which reflects a moral turpitude on the party and holds him up as a dishonest and mischievous member of society, and describes him in a scurrilous and ignominious point of view, — which tends to impair his standing in society, as a man of rectitude and principle, or unfit for the society and intercourse of honourable and honest men, is considered as a libel." In Delaware, in the case of Rice v. Simmons, 3 Harrington, 417, 429, the subject was elaborately investigated, and it was decided " that written slander, to be actionable, must impute something which tends to disgrace a man, lower him in or exclude him from society, or bring him into contempt or ridicule ; and that the court must be able to say from the (1) Dunn ?!, .Withers, 2 Humphreys, 512, 513; Milton v. The State, 3 Id., 389, 395. (2) Williams v. Karnes, 4 Id., 9, 11. (3) The State v, Henderson, 1 Richardson, 180. 112 LIBEL. publication itself, or such explanations as it may admit of, that it does contain such an imputation, and has legally such a tendency ; but mere general abuse and scurrility, however ill-natured and vexatious, is no more actionable when written than spoken, if it do not convey a degrading charge or imputation;" and Booth, C. J., referring to this case, subsequently, in Layton v. Harris, 3 Id. 406, 407, says, " a libel is a malicious publication in printing, writing, signs, and pictures, imputing to another something which has a tendency to injure hiS reputation, to disgrace or degrade him in society, lower him in the esteem and opinion of the world, or bring him into public hatred, contempt, and ridicule." In Massachusetts and Connecticut, the notion of actionable and indictable libel seem to have been confused together. In Commonivealth v. Clap, 4 Massachusetts, 163, 168, the case of an indictment, Parsons, C. J., substantially repeating Serjeant Hawkin's definition of a libel in a criminal point of view, said " A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule ;" and in Clark v. BinneAj,2 Pickering, 113, 115, a civil action for libel, the court, per Lincoln, J., referred to this as embodying <' the most clear and precise definition of a libel, as applicable to personal actions;" and said, that "to the correctness of this definition no ob- jection can now be urged." See, also. Commonwealth v. Wright, I Gushing, 46, 62. So in Eillhouse v. Dunning, 6 Connecticut, 192, 407, which was an action for libel, the court, per Peters, J., said, " A libel is malicious defamation, expressed in print or writing, or by signs or pictures, tending to blacken the memory of the dead, with an intent to provoke the living, or to injure the rep- utation of one who is alive, and thereby expose him to public hatred, contempt, or ridicule;" and in The State v. Avert/, 7 Id. 267, 268, which was an indict- ment, the same judge said, in language not much varied from the other case, " A libel is a malicious defamation of any person by printing, writing, signs or pictures, tending to blacken the memory of the dead, with intent to provoke the living, or injure the reputation of the living, provoke him to wrath, or ex- pose him to hatred, contempt, or ridicule." The latter appears to be a very correct definition of an indictable libel; but it is clear that a publication tend- ing to blacken the memory of the dead, for the purpose of provoking the living, though indictable, is not the subject of a civil action. As instances of words which are actionable, when written or printed and made public, and which would not be, if merely spoken, the following may be referred to. A letter written to a third person calling one " a villain," was held to be actionable, in Belly. Stone, 1 Bosanquet & Puller, 331 ; the Court saying that "any words written and published, throwing contumely on the party, were actionable." To charge another, in a published writing, with having the itch and stinking of brimstone, was decided to be actionable, in Villers v. MiDidey, 2 Wilson, 403, because it tends to hinder mankind from having inter- course with him; and Bathurst and Gould, Js., said that for speaking such words, without more, an action would not lie; and the latter said, that for speaking the words rogue and rascal of any one, an action will not lie, but if those words should be written of another, and published maliciously, he doubted not an action would lie. In The Archbishop of Tuam v. Eoheson, 5 Bingham, 17, it was held that to charge through a newspaper that a protestant archbishop STEELE V. SOUTHWICK. 113 attempted to convert a catholic priest by bribes was actionable; and Best, 0. J., said, that "in a libel any tendency to bring a party into contempt or ridicule is actionable, and, in general, any charge of immoral conduct, although in mat- ters not punishable by law." A publication charging that the plaintiff had been guilty of gross misconduct, and had insulted females in a bare-faced man. ner, has been held libellous ;(1) and apparently, after verdict at all events, to charge that one is an expatriated foreigner and that "fewwill entertain him. "(2) It will be seen in Steele v. SoiitJiwick, that a printed charge of swearing falsely, though not in a judicial proceeding, is actionable. The publication of a charge of falsehood is also libellous; (3) and it was held in Colbj/ v. Reynolds. 6 Ver- mont, 489, that to charge in a newspaper that the plaintiif made and circulated a false, scurrilous, and indecent report about the defendant, was actionable; and in like manner, in Shelton v. Nance, &c., 7 B. Monroe, 128, the Court said, " we cannot doubt that written words imputing to the plaintiff the invention and circulation of a report calculated to injure the character and standing of a third person, and which he himself afterwards disproved, must tend to degrade the plaintiff, and bring him into ridicule, and render him odious," and they are actionable as a libel. A writing which imputes to the plaintiff, a master brewer, filthy and disgusting practices in preparing his liquors, is libellous in itself, if applied to the plaintiff personally or in the exercise of his trade. (4) In Hart V. Reed, 1 B. Monroe, 166, 168, it was held that a charge of dishonesty, orally made, would not be actionable, because it does not necessarily import a criminal act; but it was said that if it was made in writing, it might be libellous, be- cause it tends to degrade. A publication imputing to the plaintiff the expres- sion of blasphemous opinions, has been held libellous. (5) A publication charging a candidate for the legislature with having been guilty of making a corrupt and selfish bargain as a member of the legislature, (6) or asserting that the plaintiff had in former years been guilty of smuggling, (7) or charging a magistrate with corrupt conduct in office, (8) is actionable, and in case of written matter such a charge is actionable if made after the office is wholly terminated, because an imputation of former official misconduct is an injury to present character, which is the ground of the action, but an action of slander for words injuring one in his official character could not be maintained if the office had ceased at the speaking of the words; Cramer v. Riggs, 17 Id. 209. On the other hand, to publish of one, that his mind is impaired by disease, was held not to be libellous, in 3Iayrant v. Richardson, .1 Nott & M'Cord, 348, 349 ; because it tended to produce not hatred or contempt, but rather com- passion. And in Stone v. Cooper, 2 Denio, 294, where the Supreme Court had hold that a publication charging the plaintiff with anxiety to get money speedily for shaving purposes, was libellous, a majority of the Court of Errors reversed (1) Clement u. Chivis, 9 Barnowall &, Creswell, 172; See also Boydell «. Jones, i Meeson & Welsby, 446, 450. (2) Gregory v. The Queen, 15 Adolp. A Ellis, [69 E. C. L.] 957. (3 J Cooper v. Stone, 24 Wendell, 434, 441. (4) White D. Delavan, 17 Wendell, 49 ; See Rickman v. Delavan, 25 Id., 186. (5) Stow V. Converse, 3 Connecticut, 325, 342. (6) Powers v. Dubois, 17 Wendell, 63. (7) Stillwell V. Barter, 19 Id., 487. (8) Turrill v. DoUoway, 25 Id., 426. VOL. I. — 8 114 LIBEL. the judgmeut; and the Chancellor said that shaving, ia its ordinary sense, meant merely the buying of notes at a discount beyond the debt and interest, which was neither illegal nor discreditable. In Robinson v. Jermyn and others, 1 Price, 11, a notice posted up in these words : "The Rev. J. R., and Mr. J. R., inhabitants of this town, not being persons that the proprietors and annual subscribers think it proper to associate with, are excluded this room," was held not to be a libel, as not necessarily assailing the moral character of the persons, but only alleging that their society was not agreeable to the members, [So in Peoples. Jerome, 1 Michigan, 142, (1 Manning,) where the merchants on Jeffer- son avenue, in Detroit, had united or proposed to unite in watering the avenue, and one Pierre Teller refusing to unite with them, the defendant (so far as it can be gathered from a bad statement of the case) had printed in a newspaper, or posted up in some public place, a handbill, that the said Teller "refusing to contribute his mite with his fellow merchants for watering Jefferson avenue, I (the defendant) have concluded to water said avenue in front of Pierre Teller's store, for the week ending June 27, 1846." And making in another part of the handbill some proposition to raise the amount by penny subscriptions. The court referring to Robinson v. Jermyn, held this not libellous. " The statement," says the Court, " does not assert or imply that Teller was under a legal, moral, or even honorary obligation to contribute his mite with his fellow merchants, to water Jefferson avenue. AW that can be inferred from this statement is, that the merchants on the avenue had, or had proposed to unite, in watering the avenue, and that Teller had refused to unite with them. The proposition, for aught that appears, was a new one — there was no obligation resting upon Teller to join in the furtherance of this project. It was addressed to his discretion — it was not a work of necessity ; and if a matter of taste or general convenience, all the inhabitants of the city were alike interested in it." The English case, however, was perhaps no authority for our own. It may be very proper for a club to give notice that such and such persons are excluded from the room. The success of the club or its existence may depend upon it being known that certain persons, or a certain class of persons, are excluded from it, and the thing implies no necessary reproach to the party excluded. The frequent presence of clergymen, or of judges, or of any grave people, might destroy a club merely fashionable, or of men of pleasure. But it is difficult to conceive for what pur- pose, except to bring the party into odium and ridicule by proving him to be mean and wanting in public spirit, such a notice could be published as that which appears to have been posted up in The People v. Jerome.] See, also, ArmentroiU v. Moranda, 8 Blackford, 426. A publication, reflecting on the character of the dead, with malicious intent to injure the family of the deceased, or provoke them to wrath, is indictable; but it should be alleged in the indictment, that the publication was made with intent to throw scandal on the family or descendants of the person, or to induce them to break the peace. (1) In both an action and an indictment for a libel, the gravamen consists in the unlawful publishing ; the composing of a libel without publishing it, is not actionable, nor indictable, and the publishing, without composing, is :(2) Any (1) The King v. Topham, 4 Term, 126. (2) Weir o. Hoss and Wife, 6 Alabama, 882, 888; Metcalf t>. Williams, 3 Littell, 387, 390. STEELE V. SOUTHWICK. 115 one who knowingly communicates a libel, or causes it to be communicated, is a publisher of the libel ;(1) and the communication of a libel to any one person is a publipation ;(2) [though that person be a person sent by the party libelled to procure it, and it be taken by him to such party;] (3) and a sale by the clerk or servant of a bookseller or printer, in the ordinary course of duty, is a publication by his principal. (4) One who sends a manuscript to the printer of a periodical publication, and does not restrict the printing and publishipg of it, and it is accordingly printed and published, is a publisher of the writing ;(5) as to the evidence suificient to make the writer answerable as publisher, see Bond V. Douglas, 1 Carrington & Payne, 626 ; Regina v. Lovett, Id. 462 ; Adams v. Kelly, Ryan & Moody, 157. As a general principle, the writer of a libel that is published, will be taken to be the publisher, unless proof to the contrary be given. (6) The proprietor of a newspaper, though not privy to the publication, is answerable, both civilly and criminally, for libels appearing in his paper. (7) In Smith v. Ashley, 11 Metcalf, 367, however, on the authority of a dictum in Dexter et ux. v. Spear, 4 Mason, 115, it was held that the publisher is not answerable in an action, if he did not know, at the time of publication, that the writing was libellous. A bookseller who sells a journal, or a porter who carries it round, is not answerable if he does not know that what he circulates is libellous; but the burden of showing ignorance rests on him. (8) In an in- dictment, a publication in tbe district of which the court has jurisdiction, must be proved ; but the insertion of a piece, at the defendant's request, in a paper printed in one county, which usually circulates in an adjoining county, and which, on the occasion in question, was circulated there, is a publication by the defendant in the latter county. (9) A publication to the party himself, by a letter sent to him, is not sufficient to sustain an action ;(10) but sending a letter to any other person is ;( 11) though headed " Confidential ;"( 12) and even if sent only to the plaintiff's wife;(lci) and the production of a letter with a post-mark upon it, is prima facie evidence of a publication, and that the letter was received by the person to whom it was addressed ;(14) and evidence that the defendant knew that letters addressed to (1) Layton u. Harris, 3 Harrington, 406. (2) The King,w. Amphilit, 4 Barnewall & Creswell, 35 ; Lewis d. Few, 5 Johnson, 1, 34. (3) Duke of Brunswick v. Harmer, 11 Adolphus & Ellis, N. S , [68 B. C. L.] 16=; See, how- ever, Smith V. Wood, 3 Campbell, 323; see also Armentrout v. Moranda, 8 Blackford, 426. (4) Eex V. Almon, 5 Burrows, 2688; Kespublioa «. Davie, 3 Yeates, 128, 131. (o) Burdett v. Abbott, 5 Bowling, 165, 201. (6) Giles V. The State of Georgia, 6 Georgia, 276. (7) Rex V. Walter, 3 Espinasse, 21 ; Kingf. Topham, 4 Term, 126; Rex v. Gutch, Ac., Moody A Malkin, 433, 437; Andres v. Wells, 7 Johnson, 260; King v. Root, 4 Wendell, 114, 136. (8) Chubb V. Flanagan, 6 Carrington & Payne, 431, 435; Day v. Bream, 2 Moore & Payne, 54. (9) Commonwealth v. Blanding, 3 Pickering, 304, 310. (ID) Phillips v. Jansen, 2 Eapinasse, 624; Fonville v. M'Nease, Dudley's Law, 303, 310; M'Intosh II. Matherley, 9 B. Monroe, 119. (11) Ward V. Smith, 6 Bingham, 749. (12) Lewis & Herrick v. Chapman, 19 Barb. 252. (13) Sohenok v. Schenok, Spencer, 209, 210; Wenman ». Ash, 13 C. B., [76 B. C. L.] 835. (14) Shipley v. Todhunter, 7 Carrington & Payne, 680; Warren k. Warren, 1 Crompton, MeesoD & Rosooe, 250. 116 LIBEL. the plaintifiF and not marked " private," were usually opened and read by his clerk, is sufficient ground for the jury to infer that the writer intended the letter should come to the hands of a third person, and if it did so, this would be a publication ;(1) and in Callan v. Gaylord, 3 Watts, 321, 324, it was said that depositing a libellous letter in the post-office, if it come to anybody's hands, is a publication. Sending a sealed letter to the party himself, con- taining libellous matter, is sufficient to sustain an indictment, of which the ground is a tendency to provoke a breach of the peace ;(2) but then, according to Hodijes V. The State, 5 Humphreys, 112, it must be averred in the declara- tion that it was sent with intent to provoke a breach of the peace. See further, as to what is a publication in law. The King v. Burclett, 4 Barnewall & Alder- son, 95 ; M' Coombs v. Tuttle, 5 Blackford, 431, 432 ; Simpson v Wiley et al, 4 Porter, 215 ; Miller v. Butler, 6 Gushing, 71. In Mississippi, by a statute, "all words, which from their usual construction and common acceptation, are considered as insults, and lead to a breach of the peace," addressed to the party himself, are made actionable. (3) Upon a consideration of the various cases upon the subject, we may conclude that ant/ publication iitjuyious to the social character of another, and not shoicn to be true, or to have been justifiably made, is actionable, as a false and malicious libel. Malice, in an action of this kind, consists in intentionally doing, without justifiable cause, that which is injurious to another; and everything injurious to the character of another, is, in this action, taken to be false, until it is shown by plea to be true. Therefore, every publication injurious to the character is, in law, false and malicious, until the presumption of falsehood is met, by plea of the truth, or the presumption of malice is removed by showing a justifiable occasion or motive. The ground of all legal liability for words spoken or written, consists in injury to character. We have then this general view of the entire range of this action. Any written words, in their nature and tendency, injurious to social character, by any imputation whatever, and any spoken words injurious to character by the imputation of an immoral and indictable offence, are actionable, generally : other words, spoken or written, are not actionable, unless injurious to official or professional character, or productive of actual damage. An indictable libel consists in knowingly and intentionably (which is maliciously), publishing anything injurious to the character of the living or the dead, and tending to produce a breach of the peace. [See further on this subject 2 Smith's Leading Cases, 5th ed., 65-76.1 (1) Delacroix v. Thevenot, 2 Starkie, 63. (2) The State v. Avery, 7 Connecticut, 267, 269. (3) See DaTis v. Farrington, Wallser, 304; Warren and Wife i>. Norman and Wife, Id. 387 J Scott V. Peebles, 2 Smedes & Marshall, 546. VAN VECHTEN V. HOPKINS. 117 OF THE PRINCIPLES OF CONSTRUCTION, PLEADINGS, AND EVIDENCE IN SLANDER AND LIBEL. VAN VECHTEN v. HOPKINS. In the Supreme Court of New York. NEW YORK, NOVEMBER, 1809, [reported 5 JOHNSON, 211-230.] Whether a libel was published of and concerning the plaintiff, or whether by the person mentioned in the libel the plaintiff was in- tended, is a question of fact for a jury to decide. Where libellous matter is charged against some particular person, who is so ambiguously described, that the person meant cannot be identi- fied, without the aid of extrinsic facts, there, by the introduction of proper averments and a colloquium, the words taken in connexion with the lohole libel, may be rendered sufficiently certain to support the action, so as to render it proper to permit the whole to go to the jury as a question of fact, under the direction of the judge ; who may, however, if the evidence appears to him too vague and incon- clusive to warrant a verdict for the plaintiff, order a nonsuit. In an action for libel, the plaintiff cannot prove by witnesses, that, from reading the libel, they believe the person intended in the libel, was the plaintiff.{l) An innuendo cannot be proved ; but where an averment or colloquium introduces extrinsic matter into the pleadings, that is a proper subject of proof. This was an action for a libel. The declaration contained two counts, one for writing, composing, and publishing, and the other for printing and publishing the alleged libel. The first count was as follows : " Abraham Van Vechten complains of David I. Hopkins, in custody, &c., for that whereas the saidjAbraham now is, and hitherto hath been, a good, faithful, and honest citizen of the state of New York, and of a good name, fame, and reputation, and at the time of making, devising, composing, writing, and publishing the false, scandalous, and malicious libel, hereinafter first-mentioned, of and concerning the said Abraham, and a long time before he, the said Abraham, had been duly appointed (1) Gibson v. 'Williama, i Wend. Rep,, 320. Beardsley v. Maynrd, lb., 337. 118 CONSTEUCTION AND PLEADINGS IN SLANDER. by the honourable the council of appointment for the said state, to, and held, the office of Recorder of the city of Albany, in the county of Albany, and had at an election held in and for the city and county aforesaid, to wit., on the last Tuesday of April, in the year of our Lord one thousand eight hundred and five, being duly elected a member of the assembly in the legislature of said state, in and for the said city and county, for the term of one year from the first day of July, in the year aforesaid, and held, exercised, and enjoyed the office or place of a member of the said assembly, in pursuance of such election, that is to say, at the city and county aforesaid : Yet the said David, not regard- ing the premises aforesaid, but contriving and maliciously intending to draw and bring the said Abraham into disgrace, contempt, and ignominy with the faithful and honest citizens of the said state in general, but more particularly with the honourable the said council of appointment, and tVie electors for members of the legislature of the said state, and to cause it to be believed, that the said Abraham, as a member of the assembly as aforesaid, had entered into and was concerned in a corrupt league and confederacy with divers members of the said legislature, and other citizens of the said state, to promote, by base, corrupt, and venal means, and for sinister purposes, the election of Morgan Lewis, esquire, who, at the time of making, devising, composing, writing, and publish- ing the said false, scandalous, and defamatory libel hereinafter first- mentioned, was nominated, and stood a candidate, at an election there- after to be held, and since holden in and for the said state, to wit., on the last Tuesday of April, in the year of our Lord one thousand eight hundred and seven, for the office of governor of the state, to wit., on the thirtieth day of March, in the year last aforesaid, at the city of Albany aforesaid, and in the county aforesaid, did make, devise, com- pose, write and publish, and cause to be made, devised, composed, written and published, a certain false, scandalous and malicious libel, of and concerning him, the said Abraham, according to the tenor following, that is to say : State of New York, ss. City and county of New York. I, Henry Meigs, notary public in and for the state of New York, duly commissioned and sworn (a certain Henry Meigs, then being a notary public, in and for the state of New York, meaning,) do hereby (by the notarial attestation of the said Henry Meigs to the said false, scan- dalous, and malicious libel, hereafter stated, meaning) certify, that per- sonally came and appeared before me (the said Henry, as a notary aforesaid, meaning,) David I. Hopkins, of Morristown, New Jersey, lately from the college of Middlebury, state of Vermont (the said David meaning,) who (the said David meaning) being duly sworn by me (the VAN VECHTEN V. HOPKINS. 119 said Henry, as a notary aforesaid, meaning,) saith, that some time in March, or the beginning of April, 1806 (the month of March or April, in the year of our Lord one thousand eight hundred and six, meauiiig), he (the said David meaning) went to the office of Abraham Van Yechten, esquire (the office of the said Abraham meaning), in Albany (in the said city of Albany meaning), in company with Major John Lansing (a cer- tain John V. A. Lansing, of the town of Watervliet, in the said county of Albany, meaning), at the said office (the office of the said Abraham, meaning), there arose some conversation between Major Lansing and Mr. Van Vechten (the said John and Abraham meaning), in the course of which (the said conversation meaning). Major Lansing (the said John meaning) made several severe remarks and animadversions upon the political character of Governor Lewis (the said Morgan Lewis meaning), in consequence of which remarks Mr. Van Vechten (the said Abraham meaning) said to him (the said John meaning), these severe remarks and animadversions which you (the said John meaning), have made respect- ing Governor Lewis (the said Morgan Lewis meaning), will not do, for we (the said Abraham averring, that himself and other citizens of the state, belonging to the political party denominated federalists, where thereby meant and intended) have agreed to support him (the said Morgan Lewis meaning) at the ensuing election (the election for Governor in the state aforesaid, to be held on the last Tuesday of April then next ensuing meaning.) Mr. Van Vechten (the said Abraham meaning) then produced a written instrument, which he (the said Abraham meaning) put into the hands of Major Lansing (the said John meaning), who (the said John meaning) read it (the said written instrument meaning). Major Lan- sing (the said John meaning) then laid it (the same instrument meaning) down upon the table, and went into conversation with Mr. Van Vechten (the said Abraham meaning). This deponent (the said David meaning), while these gentlemen (the said John and Abraham meaning) were con- versing, turned over the said instrument of writing, which (the same in- strument meaning) purported to be an agreement containing articles of coalition. The first (meaning the first of the said articles) was an en- gagement by several leading federal men, whose names were thereto (to the said articles of coalition meaning) subscribed, to support with all their strength and influence, the next election (the election on the last Tuesday of April last-mentioned meaning) of Governor Lewis (the said Morgan Lewis meaning). (The said Abraham averring, that by the said several leading federal men, whose names were to the said ar- ticles of coalition subscribed, to support, with all their strenjrth and influence, the next election of Governor Lewis, himself, the said Abra- 120 CONSTRUCTION AND PLEADINGS IN SLANDER. ham, and several other leading men of the political party denominated federalists, as aforesaid, were meant and intended.) In consideration of this federal article of agreement (the aforesaid articles of coalition meaning), there was an article (in the said articles of coalition meaning), stating that the friends of (jovernor Lewis, whose names were thereto subscribed (the friends of the said Morgan Lewis, whose names were subscribed to the said articles of coalition meaning) should exert all their power and influence (the power and influence of the last-mentioned sub- scribers meaning), to cause the election of S. Van Rensselaer, esquire (Stephen Van Rensselaer, of the town of Watervliet, in the said county of Albany, esquire, meaning), to the ofiice of governor, in the guberna- torial election of 1810 (the election for governor, to be held in and for the state aforesaid, in the year of our Lord one thousand eight hundred and ten, meaning). This deponent (the said David meaning) believes that there were as many names subscribed to the said agreement (the said articles of coalition meaning) as fifteen or twenty, principally quid and federal members of the legislature (the said Abraham averring, that by the quid members of the legislature aforesaid were meant and in- tended the subscribers to the said articles of coalition, who were mem- bers of the legislature of the state aforesaid, belonging to the political party attached to the said Morgan Lewis, denominated quids, and that by the federal members of the legislature aforesaid were meant and in- tended the subscribers to the said articles of coalition who were members of the-said state, and attached to the political party aforementioned, deno- minated federalists). That this deponent (the said David meaning) being on terms of intimacy with Mr. Lansing (the said John meaning), had frequent conversation with him (the said John meaning) after the circum- stances above stated had taken place (the circumstances as in the libel hereinbefore stated meaning), and in these conversations (the last-men- tioned conversations meaning) this deponent (the said David meaning) often heard Major Lansing (the said John meaning) explicitly state, that the coalition (the aforesaid coalition meaning) between the friends of the governor (the friends of Governer Lewis meaning) and the federal party (the said Abraham averring that himself and other citizens of the said state, belong to the political party denominated federalists, were there- by meant and intended) was the only way and means of again restoring the federal party (the citizens of the said state belonging to the political party denominated federalists, as aforesaid, meaning) to power (the government of the said state meaning) ; and that the federal party (the said Abraham and other citizens of the said state belonging to the political party denominated federalists, as aforesaid, meaning) was assured VAN VECHTEN V. HOPKINS. 121 of the support and influence of the Livingston family (the relatives by marriage of the said Governor Lewis, meaning), for the same object above-mentioned (the restoring of the federal party to power as afore- said meaning). By reason whereof, &c. The damages were laid at five thousand dollars. The cause was tried at the Albany circuit, in October, 1808, before Mr. Justice Spencer. At the trial it wa.s proved, that the defendant was the author and publisher of the libel ; that the plaintifi^, at the time when the corrupt agreement is charged to have been made in the libel, and, at the publi- cation thereof, was recorder of the city of Albany, and, at the former period was a member of the assembly of this state ; and that he is the only person of the name of Abraham Van Vechten in the city of Al- bany ; and kept an office there. The plaintiflF then offered to prove, by a witness, that from reading the libel, he applied it to the plaintiff, and understood him to be the person intended, as one of the federal members of the legislature, who had subscribed to the corrupt agreement charged in the libel ; but this evidence was overruled by the judge, on the ground that it was the province of the court to determine, from a perusal of the libel, whether it was the intention of the defendant to charge the plaintiff as being one of the members of the legislature who subscribed the corrupt agree- ment ; it being admitted by the plaintiff's counsel, that there were no circumstances, within the knowledge of the witness, except what he ob- tained from reading the paper itself, to influence his belief as to the person intended. The judge also decided, that the libel itself did not afford sufiicient evidence of the charge, that the plaintiff was one of the members of the legislature who subscribed to the corrupt agreement mentioned. The plaintiff's counsel excepted to the opinion of the judge ; and. a nonsuit was directed to be entered, with leave to the plaintiff to move to set it aside, and for a new trial. Henry, for the plaintiff. The question is not whether the matter set forth in the declaration is a libel, or will support the action ; but whether parol or extrinsic evidence to show the pertinency of the libel, or the person intended, is admissible ; and whether that is a question of fact for a jury, or is to be decided by the court. I contend that it belongs exclusively to the jury to say who was the person intended by the libel. The words imply an imputation against certain persons, described as leading federal men, without naming any individual; it is 122 CONSTEUCTION AND PLEADINGS IN SLANDER. the peculiar province of a jury to determine whether the plaintiff is intended. The person intended is not made out in the plaintiff's declaration, by innuendoes, but by averments. The fact was thus put in issue, and must be tried. If the issue was improper or illegal, still it must be tried ; and the defendant, if he thinks fit, may afterwards move in arrest of judgment. Where a fact is put in issue, by the pleadings, and is sent down to be tried at nisi prius, under a delegated authority, it must be tried by the jury, and cannot be decided by the judge. The court can only decide on a demurrer, or in arrest of judgment. Where there is an uncertainty as to the person, that is made certain by an averment ; and that being a substantive fact in issue, it must be tried. If a person be libelled by signs, pictures, or hieroglyphics, so that no doubt can be entertained by the court, who was the person intended, yet the fact who was the person intended must be proved by wit- nesses. (1) There must be an averment as to the person intended; for it is not the subject of an innuendo. A writing may be libellous without reflecting on any particular person. A scandalous publication concern- ing three or four, may be punished on the complaint of one of them. (2) Though a publication against the whole community, or against all eccle- siastics, would not be a libel ; yet if it be against the bishops, or a par- ticular class of men, it will be libellous. (3) An indictment will lie for such a libel as a public offence; and any individual who can show by proof, that he was one of the persons intended to be defamed, may maintain an action. Foot and Skinner, contra. There is no distinction between written or unwritten slander, as to the point now before the court. Words written must be as specific and certain, as to the person intended, as words spoken. If words are spoken of one of the servants of J. S., without designating which, no action lies. The rule is the same in an action for a libel. Where there is an ambiguity arising on the face of the writing, the court must decide on the meaning ; but where the am- biguity arises from anything extrinsic, or dehors the writing, it may be explained by witnesses. A witness is never produced to prove a fact, which the court and all the world know as well as himself. All the knowledge of the witness, in the present case, was derived from the paper; and is a witness to be introduced to explain the meaning of the (1) 4 Bao. Abr., 453; Libel [A. 3,] 2 Baraardiston's K. B., 138, 166. (2) Popham, 252, 254; 2 Burr., 984; 3 Mod., 139 ; Ld. Raym., 879. (3) 3 Salk. 224, ijl. 6; 2 Str. 788; Hawk. Bk., o. 73, § 9. VAN VEOHTEN V. HOPKINS. 123 English language ? There is no averment that the plaintiff was a lead- ing federalist. An averment is not to be made out or helped by an innuendo.[l) Does, then, the paper, in itself, clearly import that the plaintiff was the person intended? No- reader can fairly bring the words, home to the plaintiff, individually. The doctrine as to the manner in which a libel is to be made out is fully stated in the case of The King v. Home. (2) The court having, as we contend, a right to judge from the face of the libel, as it is set forth in the pleadings, whether it is a libel of and concerning the plaintiff, the question arises, whether the judge, in this case, decided rightly. How can this libel be applied to the plaintiff, more than to any other leading federalist? Can the court know judi- cially what are the political principles of the plaintiff, or to what poli- tical party he belongs ? Again, it should appear that the plaintiff was a member of the legis- lature, at the time of the publication of the alleged libel. In fact, he was not a member of the legislature at that time, and so he could not be libelled as such. On general principles, this action cannot be maintained. If the pre- sent plaintiff can recover against the defendant, then every leading federalist, and every friend of Governor Lewis, who was a member of the legislature, may have an action against him, and he be thus over- whelmed with a thousand suits. In the case of a nuisance, an individual cannot have his action, with- out showing special damage. The proper remedy is by indictment, where special damage cannot be proved. This distinction will apply to the cases which have been cited to show that the present action is main- tainable, for they were all cases on indictments. Shepherd, in reply, observed, that if the court are to decide who is the person meant in the libel, it would be useless to insert any averment or innuendo, as to that fact in the declaration. It is said that the decla- ration is defective, in not stating the fact that the plaintiff was a leading federalist, and the 'person intended: and yet it is argued, that if the fact had been averred, the jury could not decide on the truth of the averment. If the doctrine contended for by the defendant's counsjel is to prevail, the trial by jury in cases of libels would be virtually abolished, for the truth of every innuendo and averment would be decided by the court. It is not necessary that the person intended to be libelled should (1) Hawkes v. Hawkey, 8 Bast, 127. (2; Cowp. 672. 124 CONSTEUCTION AND PLEADINGS IN SLANDEE. be named in the publication ; he may be described by certain character- istic or peculiar marks; and the court are to make the application. It is understQod to be the constant practice at nisi prius, in suits for libels, to call witnesses to say whether, from perusing, the paper, they believed the plaintiff to be the person intended. The propriety of such testimony has never before been questioned. Van Ness, J. The decision of the questions arising in this case, ■will be greatly facilitated by first defining the meaning and office of an averment, a colloquium, and an innuendo. The use in pleading an averment, is to ascertain tJiat to the court, which is generally or doubt- fully expressed ; so that the court may not be perplexed of whom or of what, it ought to be understood ; and to add matter to the plea to make doubtful things clear.(l) A colloquium serves to show that the words were spoken in reference to the matter of the averment. An innuendo is explanatory of the subject matter sufficiently expressed before ; and it is explanatory of such matter only; for it cannot extefid the sense of the words beyond their own meaning, unless something is put upon the record for it to explain.(2) This may be illustrated by'Barham's case (4 Coke's Rep. 20). Barham brought an action for the defendant's saying of him, "Barham burnt my barn," {innuendo) "a barn with corn." The action was held not to lie ; because burning a barn, unless it had corn in it, was not felony. "But," says De Grrey, Ch. J., in Rex V. Horr)e,(3) "if, in the introduction, it had been averred that the de- fendant had burnt a barn full of corn, and that in a discourse about that barn, the defendant had spoken the words charged in the declara- tion, an innuendo of its being the barn full of corn would have been good ; for by coupling the innuendo in the libel with the introductory averment, it would have been complete." Here the extrinsic fact that the defendant had a barn full of corn, is the averment. The allegation that the words were uttered in a conversation in reference to that barn, is the colloquium ; and the explanation given to the words thus spoken, is the innuendo. (^ The application of these principles to the present case will be seen in the sequel. The averment of extrinsic matter, in this declaration, was for the purpose of showing that the libel was published, as it is expressly alleged to have been, "o/ and concerning the flaintiff." And whether it was (1) Syetem of Pleading, 121. (2) See Milligan v. Thorn, 6 Wend. Rep. 412, and the cases there cited. (3) Cowp. 184. (4) See also Hawkes v. Hawkey, 8 East, 427. VAN VECHTEN V. HOPKINS. 125 80 published or not, is a question of fact, which it is the province of the jury, and not of the court, to decide. This has been so held in a great number of instances ; and is so rea- sonable and just a rule, that it cannot fail of receiving universal assent. Were the lavr not so, the jury, in case of libels, would be nothing, and the court everything. In England, until lately, the court assumed the exclusive right to determine whether the writing charged was or was not libellous. If the meaning and application of the libel is also to be determined by the court, it would be going one step further; and nothing would remain for the jury but the single, and the rarely dis- puted fact of publication. In the very lucid opinion, delivered by Lord Ch. J. De Grey, in the House of Lords,(l) which contains a complete analysis of the law on this subject, he observes, that "it may happen that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel. In such a case, the court wants no circum- stances to make it clearer than it is of itself. But if the terms of the writing are general, ironical, or spoken by way of allusion or reference, although every man who reads such a writing may put the same con- struction upon it, it is by understanding something not expressed in direct words, and it being a matter of crime, and the party liable to be punished for it, there wants something more. It ought to receive a judicial sense, whether the application is just; and the fact or the nature of the fact on which that depends, is to be determined by a jury." In the case of The King v. Andrews (9 St. Tr. 679), which was one of the many prosecutions that followed the rebellion in 1746 (when it is presumed the judges of the English courts did not relax in asserting the rights which constitutionally appertained to their ofiSces), the pri- soner was indicted for publishing a treasonable libel, in vindicating the rights of the pretender to the British throne. An objection was made, that it was not shown with sufficient certainty, that the pretender was meant to be designated by the words, " The Chevalier," as he was called in the libel. Lord Ch. J. King, in his charge to the jury, commenting on this objection, observes, " The case here is a positive charge" that the book the prisoner wrote relates to the pretended Prince of Wales ; and the matter of fact you are to try is whether it is so or no." In another part of his charge he says, " that the matter of fact you are to consider," &c. To this same effect are many other cases in the books. (2) (1) In the case of the King v. Home. (2) Roberts v. Campden, 9 East, 93, and the oases there cited. Oldham r. Pealie, 2 Wm. El. Eep. 959 126 CONSTRUCTION AND PLEADINGS IN SLANDER, I do not, however, mean to deny that cases exist in which the words in themselves were held to be so vague and uncertain, as that it could not be intended they were spoken of any person ; and where, for that reason, they could not be made actionable by an averment. I agree, too, that the court, and not the jury, are to judge whether such uncer- tainty exists in the case now under consideration. Such, for example, are the cases of Leawkner v. Godnam (3 Bulst. 249), and Johnes v. Covers (Cro. Eliz. 496). There are other cases again in which, as in the case now under consideration, the words in themselves amount to a libellous charge upon some particular person, but where that person is so ambiguously described, as that, without the aid of extrinsic facts, his identity cannot be ascertained ; but where, by the introduction of proper averments, and a colloquium, the words may, notwithstanding, be ren- dered sufficiently certain to maintain an action. Such is the case of Baker v. (Bulst. 72), Wiseman v. Wiseman (Cro. Jac. 107). The case of Roberts v. Campden also recognises the same doctrine. The certainty in the latter kind of cases is arrived at, by taking into consi- deration both the extrinsic facts stated in the averments, and colloquium, and the whole of the libel, all of which must be submitted to the jury, under the direction and charge of the judge, as in other cases. The evidence may sometimes be so inconclusive as not to entitle the plaintiff to carry the cause to the jury, and in that event it would be the duty of the judge to order a nonsuit. With these exceptions and qualifica- tions, the application or allusions in a libel are questions of fact, and the decision belongs exclusively to the jury. This brings me to the consideration of the true question in this cause, viz., Was there sufficient evidence in this case to warrant the jury to find that the plaintiff was intended to be charged as being one of the parties to the corrupt agreement stated in the libel ? If this should be decided against the plaintiff, a new trial would be useless ; for, notwith- standing it is the right of the jury to determine this fact, yet if, in the opinion of this court, they would not be authorized by the evidence to find for the plaintiff, we should set the verdict aside. Before I proceed to consider this question, it is necessary to state certain rules of law, which are to govern in the determination of it. In the case of The King V. Home, already often adverted to, it is laid down, by De Grey, C. J., " that as the crime of a libel consists in conveying and impressing injurious reflections upon the minds of the subject; if the writing be so understood by all who read it, the injury is done by the publication of these injurious reflections, before the matter comes to the jury and the court. And if courts of justice are bound by law to study by any one VAN VECHTEN V. HOPKINS. 127 possible or sapposable case or sense, in which the words used might be innocent, such a singularity of understanding might screen an offender, but it would not recall the words, or remedy the injury. It would be strange to say, but more so to give out, as the law of the land, that a man should be allowed to defame in one sense, and defend himself by another." In the same case. Lord Mansfield lays down the same rule.(l) With these rules for our guide, let us consider the facts stated in the libel, and the proof given at the trial. The plaintiff, it was proved, was a member of the legislature. The libel states that when Lansing, in the plaintiff's office, made several severe remarks on the political character of Governor Lewis, the plaintiff told him, by way of caution, " These severe remarks which you have made won't do, for we have agreed to support him at the ensuing election." The obvious import of the word we, as here used, taken into connexion with what precedes and follows it, and as it would be understood by all the world, is, that the plaintiff was one of those who had agreed to support Governor Lewis. Imme- diately after the plaintiff had communicated to Mr. Lansing the existence of this agreement, he is represented to have produced the written articles of the coalition, subscribed by fifteen or twenty persons, principally quid and federal members of the legislature (a description which may embrace the plaintiff), which he submitted to Lansing's perusal. For what pur- pose ? Most clearly, I think, as containing the evidence of the agree- ment previously spoken of, and to which the plaintiff avowed himself to be a party. But the libel does not stop here. The plaintiff is said to have produced the written agreement ; and hence it appears that he was intrusted with the custody of it. Does not this fact, connected with the other circumstances, lead the mind irresistibly to conclude that he was intended to be charged as being a party to it? Upon this brief statement of the facts, I think the defendant's intention is so palpably clear and certain, as toj)reclude the possibility of a difference of opinion respecting it. Indeed, it strikes me that there is not even the appear- ance of an attempt to disguise it ; and such, I presume, would and ought to have been the conclusion of the jury, if the case had been left to them, as, according to my view of the law, it ought to have been. Upon this ground, I am of opinion that there ought to be a nev?- trial. There is another point in the case, upon which, in the view I have taken of the subject, it would not be necessary to me to express an opinion. As it may, however, embarrass the parties, on a future trial (1) See olso, as to this point, Lord King's charge to the jury, in The King v. Andrews; and Woolnoth V. Meadows, 5 East, 463. 128 CONSTRUCTION AND PLEADINGS IN SLANDEE. (if there should be any), it may as well be disposed of. I allude to the exclusion by the judge, of the testimony of the witness who was called to say, that from reading the libel, he applied it to the plaintiff. This evidence was properly overruled. The intention of the defendant is not the subject of proof, by witnesses, in the way here attempted. It is the mere opinion of the witness, which cannot, and ought not, to have any influence upon the verdict. I consider the evidence as inad- missible, because it goes to prove the correctness of an innuendo. This kind of evidence, I know, has frequently, though I think erroneously, been admitted at nisi prius. From what has been said before, of the nature and use of an innuendo, technically so called, it is clear that it cannot be the subject of proof by witnesses : Not so of an averment and colloquium, which introduces into the pleading extrinsic matter, which is the proper subject of proof. This is fully stated by Mr. Pollexfen, who was afterwards chief justice of the Common Pleas, in his able argument in Rosewell's case. (3 St. Tr. 1058, 1059.) " I never knew," says he, "an innuendo oiFered to be proved;" and his doctrine was admitted both by the court, and by the attorney-general, in his reply. My opinion, therefore, is, that the nonsuit should be set aside, and a new trial be awarded. Kent, Ch. J., Thompson, J., and Yates, J., were of the same opi- nion. Spencer, J. My brethren think that I erred, at the circuit, in non- suiting the plaintiff; and that it should have been submitted to the jury to determine, whether, from the whole matter contained in the libel, the plaintiff was charged with being one of the persons who had sub- scribed the articles of coalition. If the libel warrants the idea, that the plaintiff was charged with subscribing the articles of coalition, then, undoubtedly, instead of nonsuiting the plaintiff, the jury should have been charged to find a verdict for him. The rejection of the witness called at the trial, to give a construction to the libel, unaided by any circumstances within the knowledge of tiie witness, except what he obtained from reading the libel, my brethren think correct; and indeed it seems to me, that to permit a witness to be heard on the construction of a paper, and to give his opinion, in aid of the court and jury, is against every principle of law. It would be giving up the prerogative of the court, and this, too, most unnecessarily. The legal effect of every paper produced in evidence, is matter for the VAN VECHTEN V. HOPKINS. 129 decision of the court: and why it is not equally so upon a libel, when its construction and import come in question, I am at a loss for a reason. It would appear to me to follow, as a necessary consequence, if the rejection of the witness coming to construe the libel was correct, that then, the construction appertained to the court, as matter of law. Let me not be understood to say, that it is the business of the court, in all cases of libels, conclusively to give that construction; for whenever there are matters of fact, arising from the innuendoes, which become contested, then it is peculiarly within the province of the jury to pass on those facts. In the present case, there were no such facts: for the only matters of fact proved, dehors the libel, were, that the plaintiff, at the time when the defendant charges in the libel to have seen the cor- rupt agreement at the plaintiif's oflBce, as well as at the publication of the libel, was recorder of the city of Albany, and at the former period, was also a member of the Assembly of this state, and that the plaintiff was the only person of the name of Abraham Van Vechten, resident in the city of Albany, and that he kept an ofBce there. These facts were not ascertained, and what, then, were the jury to decide ? Whether from the terms of the libel, upon a fair and just construction of its several parts, the plaintiff was implicated as one of the subscribers to the articles of coalition ; and on what did this depend ? Most undoubt- edly upon the libel itself. In every view in which I can consider the case, it appears to me, that it became a question for the court to decide, what was the legal import of the libel, and whether the plaintiff was implicated as one of the subscribers to the corrupt agreement. What would have been the defendant's situation, had the construc- tion of the libel been submitted to the jury, and had they found for the plaintiff? There are innuendoes in this declaration, not proved upon the trial, which might possibly have produced a motion in arrest of judgment. I mean the innuendo in which the plaintiff avers that him- self and several other leading federalists were meant and intended. The principles in relation to actions for defamatory words, as well as upon libels, are well settled ; that the person slandered or libelled must be certain, and that if words are uncertain, and do not designate any particular person, no averment shall make them actionable ;(1) and that where words are ambiguous and equivocal, and require explanation, by reference to some extrinsic matter, to make them actionable, it must not only be predicated that such matter existed, but also that the words were spoken of and concerning that matter.(2) If a person should say (1) Roll's Abr., 81, 1. 25, 79. (2) 8 East, 431 ; Cowp. 648. Vol. I.— 9 130 CONSTRUCTION AND PLEADINGS IN SLANDER. of three witnesses, one of you is perjured, none of tliem shall have an action. (1) So in the familiar case, where the person was charged with burning a barn, innuendo, a barn full of corn, the innuendo was held to be irrelevant, and incapable of enlarging the words which were un- certain. Having premised this much, I proceed to consider the libel. It is supposed the plaintiff's alleged reply to Mr. Lansing, after rebuking him for his remarks on Governor Lewis, "for we have agreed to support him at the ensuing election," and the alleged production of the instru- ment, containing articles of coalition, the first of which was an engage- ment by several leading federal men, whose names were thereto sub- scribed, to support, with all their strength and influence, the next election of Governor Lewis, in consideration of which the friends of Governor Lewis, whose names were thereto subscribed, should exert all their power and influence to cause the election of S. Van Rensselaer, in the gubernatorial election of 1810, taken together, import that by the said several leading federal men, whose names were subscribed to the articles, the plaintiff was meant and intended, and is fairly designated. Under the circumstances, as stated in the libel, what is the import of the expressions imputed to the plaintiff, " for we have agreed to support him at the ensuing election? " It must be remembered, that this was urged by the plaintiff as a reason, according to the libel, why Mr. Lan- sing should not persevere in his remarks and animadversions upon the political character of Governor Lewis. And then the inquiry arises, in what sense the plaintiff must have spoken, as he is alleged to have done to Mr. Lansing; whether in his individual capacity, or as one of a political sect, with whom Mr. Lansing was associated. It appears to me, indubitably, that the expressions, upon the most natural con- struction, import that the political party, to which both the plaintiff and Mr. Lansing belong 3d, had agreed to support Governor Lewis at the then ensuing election ; and not that the plaintiff, and some others of the party, had individually agreed to support him. The supposed production of the instrument by the plaintiff, to verify his allegation, that that agreement had been made, does not necessarily implicate the plaintiff, if my construction is right, that the terms he is supposed to have made use of, point to the political party to which he, Mr. Lansing, belonged; for if several leading federal men had made that agreement, the plaintiff's position, " for we have agreed to support him at the ensuing election," was as well maintained as though the plaintiff him- self bad subscribed the paper. The libel is considered as implicating the plaintiff as one of the sub- (1) Roll's Abr., 81, 1. 25. VAN VECHTEN V. HOPKINS. 131 scribers to the corrupt agreement, by force of the expressions, that it was an agreement by several leading federal men, whose name were thereto subscribed. Now there is no proof in the case to what political party the plaintiff belonged, or that he was a leading federal man ; so that for aught that appears, the plaintiff is not of the description of those who are alleged to have subscribed the agreement. The declara- tion, indeed, contains the averment, that by the several leading federal men mentioned in the libel, the plaintiff and several other leading fede- ralists were meant and intended. Whether the manner in which this is introduced into the declaration, being there inserted as an innuendo, and not as a prefatory fact, would have entitled the plaintiff to give evidence that he was a leading federalist, I need not now examine, because no such evidence was offered or overruled. To set aside the nonsuit, on the ground that the cause should have been submitted to the jury, upon the evidence offered, is not only saying that it does not appertain to the court to construe papers given in evidence, and to decide on their import and effect, when there are no extraneous facts in controversy ; but it is also saying, that the expressions supposed to have been used by the plaintiff, for " we have agreed to support him at the ensuing election," imply not only that the plaintiff subscribed the articles of coalition, but that he was a leading federal man. These inferences appear to me unnatural and unwarranted by the expres- sions. I therefore remain of the opinion that the nonsuit was properly directed. New trial granted. At one period, before the time of Lord Holt, the rule in actions for slander was, that words were to be construed in mitiore sensu, the object being to sup- press litigation : afterwards, in some of the cases, it was said that the words should be taken in malam partem, where they would bear it, the policy being to aflFord legal remedies, and thereby prevent violent redress. (1) But the rule now firmly and universally settled is, that words are to be taken in their plain and natural import, and will be understood by courts and juries in the same way in which they would be understood by the rest of mankind, and according to the sense in which they appear to have been used, and the ideas which they are adapted to convey to those to whom they are addressed. The ordinary signification and acceptation of words, and the understanding of the hearers, fix the meaning in slander.(2) "The rule," said the court in Borland v. Pat- (1) Bloss V. Tobey, 2 Pickering, 327. (2) Woolnoth v. Meadows, 5 East, 463 ; Roberts v. Camden, 9 Id., 93, 96 ; Ch^ddock v. Briggs, 13 Massachusetts, 248, 254; Demarest v. Haring, 6 Cowen, 76, 87; Cornelius i. Van- 132 CONSTRUCTIOW AND PLEADINGS IN SLANDEE. terson, 23 Wendell, 422, " is that the defendant is accountable for the import of the words as it will naturally be understood by the hearer; and explanatory circumstances known to both parties, speaker and hearer, are to be taken into account as part of the words." " Slander imports an injury," said Shippen, C. J., of Pennsylvania ;(1) "and the injury must arise from the manner in which the slanderous language is understood." [And therefore it is that it is slanderous to charge one with stealing chattels, the property of a dead man, for, though there can be no property in them by the dead man, the words "convey to the general ear an accusation of stealing them from his represen- tative."] (2) The actual meaning of the words in the particular case, and the effective sense in which they were understood, as a matter of fact, is a consideration for the jury; but the question, what constitutes a crime or offence, the imputation of which is slanderous, is of course a matter of law for the court. The mean- ing of words is therefore a mixed question of fact and law, involving the joint action of court and jury. So far as the words are of doubtful signification, and are capable of different meanings according to the circumstances under which they are used, and the transaction to which they relate, it is for the jury to determine in what sense they were used. (3) If, according to the manner and occasion of speaking, and the reference of the speaker as understood by the hearers, the words are capable of two meanings, one of which is actionable and the other innocent, it is for the jury to say in what sense the words were uttered and understood. (4) "Where there is room for the least criticism upon their import," it has been said, (5) "it is properly a question for the jury, whose decision is conclusive." But though it is for the jury, absolutely, to determine the reference of the language, and the sense in which, in matter of fact and understanding, it was used, it is a question for the court whether the sense and meaning in which the words were used, amount to the crime or offence charged in the declaration. (6) The respective functions of the court and jury in oases of this kind, are very accurately illustrated in Dexter v. Taber, 12 Johnson, 239. The words charged in the declaration, as slanderous, were, " You are a thief." The witnesses who proved the speaking of the words, went on to explain in what connexion, and in reference to what subject, the Slyok, 21 Wendell, VO ; Coons v. Eolinson, 3 Barbour's Supreme Court, 626, 633 ; Brown v. Lamberton, 2 Binney, 35, 37 ,• Bloom and Wife v. Bloom, 5 Sergeant & Rawle, 391, 392 ; Walton V. Singleton. 7 Id., 449, 451; Beirer v. Bushfield, 1 Watts, 23 ; Butterfield v. Buffum, 9 New- Hampshire, 156, 159 ; Cole v. Grant, 3 Harrison, 328, 331 ; Davis u. Johnson, 2 Bailey, 579 ; Cooper V. Perry, Dudley, 247; Btoddart v. Linville, 3 Hawks, 474; M'Brayer v. Hill, 4 Iredell's Law, 136; Hamilton v. Smith, 2 Devereux & Battle, 274; Logan v. Steele, 1 Bibb, 593; Jones V. M'Dowell, 4 Id., 188 ; Hogg v. Dorrah, 2 Porter, 212; Wilson v. Harding, 2 Blackford, 241 ; Watson V. Nicholas, 6 Humphreys, 174, 175; Giddens ». Mirk, 4 Georgia, 364, 372; Hancock v. Stephens, 11 Humphreys, 609; Bush ?i. Sumner, 20 Penua. State, 159. (1) Rue V. Mitchell, 2 Dallas, 58, 59. (2) Bush V. Sumner, 20 Penna. State, 162. (3) Goodrich v. Woolcot, 3 Cowen, 231, 240 ; Cook v. Bostwick, 12 Wendell, 48 ; Hays v. Brierly, 4 Watts, 392. (4) Hays and Wife v. Hays, 1 Humphreys, 402; Jones v. Hirers, 3 Brevard, 95 ; Cregicr v. Brunton, 2 Bichardaon, 396; Welsh v. Eakle, 7 J. J. Marshall, 424. (5) Ex parte Bailey, 2 Cowen, 479. (6) See M'Kinley v. Robb, 20 Johnson, 351, 355; Laine v. Wells, 7 Wendell, 175. TAN VECHTEN V. HOPKINS. 133 words were spoken; and it then appeared that the language used by the defend- ant was, " You are a thief, you stole hoop-poles and saw-logs from off Delancy's and Judge Myers' land ;" and the witnesses said, that they supposed that the words spoken alluded to the cutting of standing timber. The judge told the jury, that it was for them to decide, whether the words, as proved, amounted to a charge of theft, or trespass only; that if, by the words, the defendant meant to charge the plaintiff with secretly taking timber already cut into hoop- poles and saw-logs, it was a charge of theft ; but if they meant only that the plaintiff had secretly cut and carried away timber from off the land, in order to make hoop-poles, &c., it amounted to a charge of trespass only ; and in that case, the words were not actionable. The jury found for the defendant, and the instruction and finding were sustained by the court above. " It was, cor- rectly stated to the jury," said the court, " that if the defendant intended to charge the plaintiff with taking hoop-poles and saw-logs already cut, it was a charge of felony; but if he only meant to charge him with cutting and carry- ing them away, it was only charging him with having committed a trespass. And in what sense the words were intended to be used, was for the jury to determine." The question for the jury is, not what the party meant according to some reservation in his own mind, but what he meant to make other people believe, — what he expected would be understood by those to whom the words were addressed ; and for the meaning of the words, as they are understood by others, he is responsible. (1) " The true rule is, that words are to be understood in the sense which they are calculated to impress on the hearers' minds."(2) An averment of the meaning of the defendant cannot be proved by witnesses stating their general opinion or belief as to his meaning ; the witnesses must state facts, from which the jury, under direction of the court, will draw the inference ;(3) for, if the words, in their ordinary sense, in connexion with the accompanying circumstances, bear the meaning ascribed to them in the declara- tion, the jury will so find; but if not, the witness's understanding (which in such a case would be a simple misconception) ought not to control the jury ; as that would make the defendant's liability depend, not on his own intent and purpose, but on the misunderstanding or morbid imagination of one or more of his hearers ;{4) it has however been held in one case that witnesses acquainted with the parties may state their opinion as to the persons intended to be designated by the defendant's words or writing.(5) If words, amounting in themselves to slander, by imputing some crime, have been uttered, it is no defence to show that there existed such circumstances of fact or of law, that the plaintiff did not or could not commit the crime, unless such circumstance was stated, or appeared and was known, at the time of speak. (1) Read v. Ambridge, 6 Carrington k Payne, 308, 309; Shipley ». Todhunter, 7 Id., 680; Kennedy v. Gifford, 19 Wendell, 296, 300 ; Smith & Smith et ux. v. Miles, 15 Vermont, 245; Sawyer «. Eifert, 2 Nott & M'Cord, 511; Hugley i. Hugley, 2 Bailey, 692, 593; Morgan v. Livingston, 2 Richardson, 574, (2) Hays and Wife v. Hays, 1 Humphreys, 402; Marshall v. Gunler, 6 Richardson, 430. (3) Gibson v. Williams, 4 Wendell, 320, 325, 326, 327. (4) Snell .-. Snow, 13, Metcalf, 278, 282. (5) M'Laughlin v. Russell, 17 Ohio, 475, 481; and see Tompkins v. Weisse, 1 Sneed, 458. 134 CONSTRUCTION AND PLEADINGS IN SLANDER. ing the words, and qualified their meaning as then understood, so as to make it evident that, as used, they did not impute the crime, and were not, under the circumstances, adapted to be so understood ; as, if one be charged with perjury, or with the murder of a particular person, or with stealing, and the fact (not stated, nor understood, with the charge) be, that the false swearing was about some immaterial matter, or the person is living, or never existed, or the alleged stealing be of something of which the plaintiiF was tenant in common ; in all such cases, the defendant is responsible for the general and natural meaning of his language, as apprehended by his hearers; for words clearly slanderous, as understood, cannot be explained by reference to something which the bystand- ers knew not of.(l) If however, the defendant, at the timeof making a general charge which would be actionable in itself, goes on to explain it as relating to something not capable of being the crime which in terms he imputes, or if facts and circumstances known to the hearers, and in relation to which they under- stand that the words are used, render the imputed crime impossible, the words are not actionable. For example, if one says, " He is a thief and cut trees from my land," the latter explanation would qualify the previous epithet, and the words would amount to an imputation of trespass, not felony, and would therefore not be actionable ; [or if the words charge " a theft," still, if they be known to be spoken by one partner of another, in reference to a partnership transaction, and do in fact amount to an imputation of fraudulent failure to ac- count, and not to a technical theft ;](2) or, if an express charge of perjury be made, but be explained or understood at the time as relating to an extra-judicial oath, which is not perjury, the whole matter taken together would not be a slander. And where the qualification thus depends upon extrinsic facts and circumstances, it is for the jury to determine the actual meaning. (3) But to amount to an explanation, the qualification must extend as far as the hearing of the words; and therefore if a charge of felony is made, for example, "You have stolen my wood ;'' it is not enough to prove that the witnesses, or some of the bystanders, understood it as relating to a transaction which was not a larceny; it must be shown, either that an explanation was made by the defend- ant at the time, or that all the hearers understood it as relating to a transaction not felonious ;(4) and a witness cannot be permitted to say whom or what he was induced by current rumors or the conversations of others, to suppose that the defendant meant. (5) Moreover, no explanation or qualification, made sub- sequently, will take away the actionable character of a charge originally slan- (1) HemingD. Power, 10 Meeson & Welsty, 564; Carter v. Andrews, 16 Pickering 1 ; Stone V. Clark, 21 Id., 51, 63; Beford v. Miller, 3 Penrose &■ Watts, 103 ; Eckart v. Wilson, 10 Serg. & Rawle, 44; Williams v. Miner, 18 Connecticut, 464, 473; Shagart v. Carter, 1 Devereux & Battle, 8 ; Tenney v. Clement, 10 New Hampshire, 52, 67; Dalrymple i>. Lofton, 1 M'MuUan, 112, 117 ; Becket v. Sterrett, 4 Blackford, 499, 601 ; Watson u. Nicholas, 6 Humphreys, 174. (2) Wright 41. Lindsey, 20 Alabama, 429. (3) Thompson v. Bernard, 1 Campbell, 48 ; Williams v. Stott, 1 Crompton & Meeson, 675 ; Shipley v. Todhunter, 7 Carrington & Payne, 680 ; Van Rensselaer v. Dole, 1 Johnson's Cases, 279 ; Dexter v. Taber, 12 Johnson, 239; Smith & Smith et ux. v. Miles, 15 Vermont, 245; Gill V. Bright, 6 Monroe, 130; Pegram v. Styron, 1 Bailey, 595 ; Shecut v. M'Dowell, 1 Const. Rep., 1st series, 35; S. C, 3 Brevard, 38; Cregier v. Burton, 2 Richardson, 396; Williams v. Cawley, 18 Alab., 208 ; Wright v. Lindsey, 20 Id., 429. (4) Phillips V. Barber, 7 AVendell, 4S9 ; Hankinson, v. Bilby, 16 Meeaon &, Welsby, 442 ; (5) AUensworth v. Coleman, 5 Dana, 315. VAN VECHTEN V. HOPKINS. 135 derous.(l) In all cases of this kind, it is for the jury to say what was the pieaning of the words as understood by the hearers. (2) It is said by De Grey, C. J., ia Onslow v. Home, 3 Wilson, 117, 188, that to make an imputation slanderous, "the charge upon the person spoken of, must be precise.'' the meaning is, not that the language averring the party to haye been guilty must be precise, but that the crime alleged must be precise ; that is, as explained in Sir William Blackstone's report of the same case, 2 Black- stone, 753, " a general charge of wickedness would not be sufficient." To call a man a "rogue," or a «d — d rogue," is not actionable. (3) So a charge of "plundering a library," would not of itself be slanderous, because, though it conveys the notion of a wrongful acquisition, it does not express the nature of the wrong done. (4) A general charge of " felony," however appears to be actionable ; (5) or of having been convicted and sent to the penitentiary. (6) With regard to the precision with which the charge must be fixed upon the person, it is settled, that the crime or offence need not be charged in direct and positive terms: it need not be affirmatively averred : it may be as effectually made by ambiguous insinuation, by expressing a suspicion or delivering the words as matter of hearsay, or by way of interrogation or exclamation, as by way of affirmation ; and it may be made by conditional words, or words in the future tense. The only inquiry is, whether, according to the natural and fair construction of the language used, in connexion with the preliminary circum- stances mentioned in the colloquia, the persons in whose presence and hearing the language was used, had a right to believe that it was the defendant's inten- tion to make the charge. (7) [What they did in fact, believe cannot be shown; as for example, it cannot be shown by witnesses that on reading the alleged libel, they considered that the plaintiff was meant; see post.](8) If a person says, that he " believes," or "he has reason to believe," that another has committed a particular crime, is actionable. (9) [And so if stated " I believe he did steal; and I believe he will steal."] (10) If the matter be stated as common report or common belief, it is still actionable. (11) [But if the words import a mere suspicion, they are not actionable. Tozer v. Mashford, 6 Exchequer 539.] In point of law, also, it is immaterial whether the slander expects to be (1) Lathan v. Berry, 1 Porter, 10. (2) Beoket v. Sterrett, 4 Blackford, 499, 501. (.3) Caldwell v. Abbey, Hardin, 629; Idol t). Jones, 2 Devereux, 162; See Walton «. Singleton, 7 Sergeant k Rawle, 449, 452. (4) Carter «. Andrews, 16 Pickering,!, 9. (5) Wiley v. Campbell & Smith, 6 Monroe, 396. (6) Stewart v. Stewart, 5 Barr, 372. (7) Gorhami). Ives, 2 Wendell, 534, 536; Gibson b. Williams, 4 Id., 320 ; Kennedy u. Gifford, 19 Id., 296; Cornelius v. Van Slyek, 21 Id., 70; Rundell v. Butler, 7 Barbour's S. Ct., 260 ; Bornman u? Boyer, 3 Binney, 515 ; Cole v. Grant, 3 Harrison, 328, 331 ; Schcnck v. Schenek, Spencer, 209 ; Drummond v. Leslie, 5 Blackford, 453, 455 ; Sawyer v. Eifort, 2 Nott & M'Cord, 511; Hart v. Reed, 1 B. Monroe, 166 ; Marshall ti. Gunler, 6 Richardson, 419. (8) White V. Snyward, 33 Maine, 322. (9) Miller u. Miller, 8 Johnson, 74; Beehler «. Steever, 2 Wharton, 314, 329 ; Logan v. Steele, 1 Bibb, 593; Giddens v. Mirk, 4 Georgia, 364; Waters v. Jones, 3 Porter, 442. (10) Beehler v. Steever, 2 Wharton, 313; Dottarer v. Bnshey, 16 Penna. State, 209. (11) Mason v. Mason, 4 New Hampshire, 110; Treat v. Browning, 4 Connecticut, 409, 414; Smalley i;. Anderson and Wife, 4 Monroe, 368 ; Waters v. Jones, 3 Porter, 442. 136 CONSTRUCTION AND PLEADINGS IN SLANDEE. believed or not; it is no excuse for an assault on character, that the speaker really was not in earnest, and did not intend that his hearers should credit his aspersions. (1) To say of a person, " Tell him he is riding a stolen horse, and has a stolen watch in his pocket,'' is a charge of theft, and actionable in itself, on the ground that the words are to be taken in their natural sense. (2) To say of one, that he " was whipped for hog-stealing," is an accusation of hog- stealing, with the addition that he was whipped for it. (3) And to say, "You have been cropped for felony ;(4)" or "he is a convict," or "he was in the penitentiary. "(5) So to write of another, "He is so inflated with two hun- dred pound or three hundred pound which he has made in my service, — God only knows whether honestly or otherwise," — is a charge of dishonesty, and is libellous. (6) But in all cases, the matter, of which the charge constitutes the offence, must be imputed to the plaintiff; if it be uncertain of whom the words were spoken, the action is not maintainable. (7) Where the plaintiff's name is not printed in a libel, but there are asterisks for it, "the question for the jury is, whether the libel designates the plaintiff in such a way as to let those who know him, understand that he was the person meant : it is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff, can make out, that he is the person meant. "(8) In determining whether spoken or written matter amounts to a slander or a libel, the construction must be upon the whole language used ; and in that way, language in one part of a sentence which would not be actionable of itself, may be so affected by expressions in another, as to become actionable. (9) Accordingly, the following language, " I have lost a calf-skin out of my cellar the day that you and B. (the plaintiff) got the leather, and there was nobody in the cellar that day but you, B., and G., and I do not blame you nor G., but B. must have taken it," has been decided to amount to a charge of stealing, because of the secret and blameable manner in which the taking is imputed. (10) In like manner, the words, " who gave you orders to feed my straw to your cattle? You did take it, for it could be seen at the back of the barn;" and " You fodder your cattle on my straw. What have you done you old scound- rel? You went and made a slaughter-house of my barn, and are acting dis- honestly in everything you are doing about the place;" have been deemed actionable as importing theft, as the taking is spoken of as something secret, blameable and dishonest. (11) So, "I have made the chirge against him, and I shall go on with it," with a colloquium of the oath and evidence of a person in a judicial proceeding, amounts to a charge of perjury, and as such is action- (1) Hatch V. Potter ot ux., 2 GLlmam, 725, 728. (2) Davis V. Johnson, 2 Bailey, 579. (3) HoUey v. Burgess, 9 Alabama, 728. (4) Wiley V. Campbell, 5 Monroe, 396. •* (5) Smith V. Stewart, 5 Barr, 372. (6) Clegg V. Laffer, 10 Bingham, 250. (7) Harvey v. Coffin, 5 Blackford, 666, 567. (8) Bourke v. Warren, 6 Carrington & Payne, 307. (9) See Graves v. Waller, 19 Connecticut, 90, 94; Williams v. Gardner, 1 Meeson & Welsby, 244. (10) Bornman v. Boyer, 3 Binney, 515. (11) M'Kennon v. Grew, 2 Watts, 352. VAN VECHTEN V. HOPKINS. 137 able.(l) So in regard to written matter, a paragraph headed "Threatening Letters. The Middlesex Grand Jury have returned a true bill against a gentle- man of some property, named French," was held to be actionable, because it would ordinarily be understood as meaning that the Grand Jury had found a true bill against French for sending threatening letters ; and a bill of indictment for sending a threatening letter must import an unlawful threatening letter. (2) In order that words may be actionable, and written matter either actionable or indictable, it must have an individual application. (3) Where slanderous or libellous matter is uttered or published against a class of persons, or a profes- sion, body, or order of men, and does not import a specific application tending to individual injury, a member, not specially designated, cannot maintain an action ;(4) and one reason is, that the body may have justly incurred the cen- sure, and yet an individual in it may he acknowledged to be free from reproach. Where, however, many persons are severally included in the same attack, the plaintiff is not the less entitled to redress, because others are injured by the same act; and the question will always be, whether the charge bears upon the plaintiff personally, though among others, and whether, upon the whole, the declaration avers, with sufficient certainty, that the plaintiff, individually, is slandered or libelled. (5) The words, " Your children are thieves, and I can prove it," and, " you are a gang of murderers — you killed T., and you know it," have been held sufficiently individual, to give any one of the persons re- ferred to a separate action. (6) [And so where libellous matter is substantially charged to one OR the other of two individuals, either may sue ; the law regard- ing it as an imputation against both; Forbes v. Johnson, 11 B. Monroe 51. Indeed it would appear that where a charge is against several, separate actions ought to be brought and not a joint action.](7) As the question, whether the declaration contains a good cause of action, is always matter of law, it is for the court to determine, on demurrer, or on motion in arrest of judgment, whether the whole matter charged in the count, amounts to slander.(8) If the words set forth, do, in themselves, that is, in their gen- eral legal meaning, or in the particular meaning intended by the speaker, as inferred from their connesion with other words used at the same time, which are also set out in the declaration import a charge against the plaintiff, which is sufficient to constitute slander, they are actionable in themselves, and no other matter need be averred ; and the sufficiency of the words to sustain the action, is matter of law for the court. (9) But if the words, in themselves, do (1) Thompson v. Lusk, 2 Watts, 11, 20. (2) Harvey v. French, 1 Crompton & Meeson, 11, 18; See also Hughes v. Bees, 4 Meeson A Welsby, 204 ; Marshall v. Gunler, 6 Richardson, 419. (3) See The King v. Alme & Nott, 3 Salkeld, 224. (4) Sumner v. Buel, 12 Johnson, 475. (5) Ellis 1). Kimbal, 16 Pickering, 132; Eyckman ti. Delavan, 25 Wendell, 186; controlling White V. Delavan, 17 Id., 49. (6) Gidney v. Blake, 11 Johnson, 64; Chandler v. Halloway, 4 Porter, 18. (7) Bash i;. Sumner, 20 Penna. State, 162. (8) Bornman v Boyer, 3 Binney, 515, 519; Dorsey v. Whipps, 8 Gill, 462. (9) See Woolnoth v. Meadows, 5 Bast, 463; Roberts v. Camden, 9 Id., 93; Carter ti. Andrews, 16 Pickering, 1, 7; Worth v. Butler, 7 Blackford, 251 ; Stacker v. Davis, 8 Id., 415 ; Thirman «. Matthews, 1 Stewart, 384 ; Brittain v. Allen, 3 Devereux, 167 ; Vanderlip & wife v. Roe, 23 Penna. State, 83 ; Robinson v. Keyser, 2 Foster, 323. 138 COXSTRUCTION AND PLEADINGS IN SLANDER. not constitute such complete imputation against the plaintiff, as amounts inlaw to a slander upon him, it is necessary to aver, in the declaration, such extrinsic facts as, taken with the words, cause them to amount to a slander upon him. An averment that the words were used of and concerning a particular person, or particular circumstances or subject matter, is called a colloquium If the language be ambiguous, or ironical, or technical, or conventional, or be used by way of allusion or reference, and in its general meaning would not necessarily be slanderous, but becomes so only in respect to the meaning in wtich it was used and understood in the particular case, or in which it is understood by the class of persons among whom it is uttered, then the facts which determine or show such meaning, or understanding, must be averred on the record by way of inducement or introduction to the words set forth; and there must be a posi- tive averment, or colloquium, that the discourse was of and concerning those circumstances; without which, the inducement would be unavailing; for, the innuendo is incompetent to such a purpose ; and if the words, in connexion with such special circumstances modifying their meaning and understanding, do convey an imputation that is slanderous, they are actionable. In short, when- ever the words in their legal construction, that is, in their natural and inherent signifioation, do notanjount to a slanderous imputation, such matter or fact as, taken with thom, causes them to amount to an imputation of that nature, must be averred by way of inducement; and these averments are of traversable matter, and may be proved or disproved (1) The office of an innuendo is, by reference to the matter averred, that is, either the words alone, or the words and circumstances together, to explain the effect of the words used, so as to point out that they are slanderous; it is equivalent to "scilicet" or " id est j" and is merely a statement of a reasonable inference from what is alleged in the foregoing part of the count; it cannot be proved on the trial; of course, it cannot enlarge, extend, or add to, the sense or effect of the words set forth, nor refer to anything not in the declaration. (2) As to the mode of declaring when (1) '*TIie revised Statutes of Indiana of 1852, have enacted, that, in an action for libel or slander, it shall be sufficient to state generally that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove on the trial, the facts shewing that the defamatory matter was spoken of him." K. S., 1852, vol. 2, p. 45. This statute is similar to that of New York. The Statute of New York has been held to dis- pense with the allegation of extrinsic facts showing the application of the words to the platnti^, but not to dispense with the necessity of an averment or innuendo, when it becomes essential to show the meaning of the words themselves. Pike r. Van Wormer, 5 Practice, R. 171. AVhen the meaning of the words is so ambiguous that extrinsic facts are necessary to be proved to show them to be actionable at all, the necessity of stating these facts by an explict averment is precisely the same as it has always been. Pry r. Bennett, 1 Code Rep. N. S., 238. Even though it may bo uncertain to whom the words were intended to apply, it is no longer neces- sary to assert in the complaint any averments [of extrinsic facts] showing that they were intended to apply to the plaintiff. But, in other respects, the same averments are requisite, in pleading under the code, as at common law, Pike v. Wormer, 6 Practice R., 99. And see note to Larsh v. Brown, 3 Indiana (Porter's) Reports, p. 234. (2) See Alexander v. Angle, 1 Crompton &, Jervis, 143 ; S. C, 7 Bingham, 119; Goldstein v. Foss, 2 Younge & Jervis, 146; S. C, 4 Bingham, 489; M'Gregor v. Gregory, 11 Meeson &, Welsby, 287, 295; O'Brien ti. Clement, 16 Id., 159,167; Ilearn v. Stowell, 12 Adolphns & Ellis, 719; Brown v. Gosden, 1 Common Bench, 728; Babonneau v. Farrell, 15 Common B., [80 E. C. L.] 359; Fowle v. Robbins, 12 Massachusetts, 489, 490; Bless f. Tobey, 2 Pickering, 320; VAN VECHTEN V. HOPKINS. 139 the libel is ironical, see Boydellv. Jones, 4 Meeson & Welsby, 446, 450. It is competent, however, for the pleader to aver that the words were uttered with intent to convey a particular meaning, and that they were understood to convey that meaning, by the persons in whose presence they were uttered ; and these averments, being substantive allegations of facts, must be proved; and this is probably the best way of declaring when there is any ambiguity in the Ian- gaage.(l) And Cowen, J., is surely mistaken in saying, as he does,(2) that the averment in Goodrich v. Woolcot, 3 Cowen 231, 239, how the words were meant and understood, was no more than a common innuendo. But in this mode of declaring, the introductory averments and colloquia must be such as fairly to warrant the meaning which the pleader imputes. It has been held, that to state the charge " he swore to a lie," without any colloquium, but an averment that the defendant meant thereby, and was understood by the bystanders, to charge the plaintiflf with perjury, was not good even after verdict. (3) It has been held, indeed, in Indiana, that though extrinsic matters of fact are usually averred in distinct allegations, yet they may be incorporated with the colloquium ;(4) but this is certainly an inconvenient method, as confusing matter of fact, with mere inference ; and the proper mode was pursued in Har.per v. Delf, 3 Indiana, and is recommended in Dodge v. Lacey, 2 Carter's Indiana, 215. In certain Pennsylvania casos,(5) Gibson, C. J., goes so far as directly to argue in favor of allowing an innuendo to perform the ofiSce of an averment, in fixing the meaning of the words ; but these cases are not authori- ties for such a doctrine, because in all of them the words were in themselves, with the colloquia set forth, undoubtedly actionable; and the opinions of the Chief Justice are opposed by other cases in his own state ;(6) and see Tipton Carter v. Andrews, 16 Id., 1 ; Snell v. Snow, 13 Metcalf, 278, 282; Andrews v. 'Woodmansee, 15 AVendell, 232; Gibson v. Williams, 4 Wendell, 321), 324; Kinney i;. Nash, 3 Comstock, 177; Fry V. Bennet, 5 Sandford, 64; Shaffer v. Kintzer, 1 Binney, 537; McClurg ». Boss, 5 Id., 218, 220; Fitzsimmons v. Cutler, 1 Aikens, 33; Ryan and Wife u. Madden, 12 Vernnnt, 51, 55; Harris V. Burley, 8 New Hampshire, 256 ; Bartow v. Brands, 3 Green, 248, 249; Cole v. Grant, 3 Har- rison, 328, 330; Joralemon v. Pomeroy, 2 Zabriskie, 271; Siddens »;. Mirk, 4 Georgia, 364, 366; Hays V. Mitchell, 7 Blackford, 117; Harper v. Delf, 3 Indiana, 225; Nichols v. Guy, 2 Carter's Indiana, 82; Dodge v. Lacy, Id., 215; Patterson et al. u. Edwards et al., 2 Oilman, 720, 723; Sheely v. Biggs, 2 Harris k Johnson, 363; Stantly v. Brit, Martin &, Yerger, 222 ; 8 Gill, 457; Dyer, v. Morris, 4 Missouri, 214; Church v. Bridgman and Wife, 6 Id., 191,194; Watts v. Greenlee, 2 Devereux, 115; Caldwell v. Ahbey, Hardin, 529 ; Gale v. Hayes, 3 Strobhart, 452; Martin v. Melton, 4 Bibb, 99 ; Watson v. Hampton, 2 Id., 319; Beswick v. Ch appel, 8 B. Monroe, 486, 488; Taylor v. Kneeland, 1 Douglass, 68, 73 ; Maxwell and Wife i;. Allison, 11 Sergeant & Eawle, 343 ; People v. Collier, 1 Michigan, 139. (1) Woolnoth V. Meadows, 5 East, 463, 470 ; Sweetapple v. Jesse, 5 Earnewall & Adolphus, 27 ; Dodge v. Lacy, 2 Carter's Indiana, 215; Tomkins v. Weisener, 1 Snead, 458 ; in which last case, though the declaration was bad, that point is passed over, and the true doctrines stated by the Court, as if the declaration had been good. Goodrich v. Woolcot, 3 Cowen, 231, 239; 5 Id., 714, on error; Gibson v, Williams, 4 Wendell, 320, 324; Andrews v. Woodmansee, 15 Id. 232, 235; Hays v. Mitchell, 7 Blackford, 113. (2) Kennedy v. Gifford, 19 Wendell, 296, 299. (3) Palmer v. Hunter, 8 Missouri, 512. (4) Ricket et ux. «). Stanley, 6 Blackford, 169; Hays v. Mitchell, 7 Id., 117. (5) Thompson v. Lusk, 2 Watts, 17, 20; M'Kennon v. Greer, Id., 352; and Hays v. Brierly, 4 Id., 392; (6) Packer v. Spanglcr and Wife, 2 Binney, 60; M'CIurg v. Ross, 5 Id., 218; Maxwell and Wife V. Allison, 11 Sergeant & Eawle, 343, 344. 140 CONSTKUCTION AND PLEADINGS IN SLANDER. V. Kahle, '6 Watts, 90, 93, where Sergeant, J., saya, that " no innuendo, though found by the jury, can render the defendant liable for words not in themselves actionable." In regard to ambiguous language, it was laid down by Cowen, J-,(l) that, " It is not because the words may have a meaning different from what they import, or because they are of doubtful meaning, that the declaration must show specially such extrinsic facts as give them point; but when they are such as cannot, of themselves, be slanderous." And the Court of Queen's Bench has said, (2) that the innuendo in that case did not "exceed its proper function and office ; which is, where the words are susceptible of a harmless, and also, of an injurious meaning, to point to that meaning which is injurious, and therefore actionable; and, that being found by the jury, the verdict is right. In a case in the English Common Pleas,(3) words which might fairly be understood as being indifferent and harmless, or as imputing dishonesty to the plaintiff, had the latter meaning attributed to them by an innuendo, without any preliminary matter whatever; and that Court was of opinion, that there was no valid ob- jection to that innuendo." The same sentiments are expressed in Pennsyl- vania.(4) But these views appear to be somewhat loose. In the Common Pleas case, which was the case of a libel, there was an imputation of dishon- esty, in a form of indirect suggestion or question, and the only doubt appears to have been, as to the sufficient directness of the charge : and Bosanquet, J , said, " The rule is clear, that words must be taken in their ordinary sense, and there can be no doubt upon the effect of these words." And in the case in the Queen's Bench, as also in the Pennsylvania case, the natural inherent meaning of the words was clearly slanderous. The true distinction appears to be, that if the ambiguity is inherent, that is, if the words in their general sense, are equally capable of two meanings, one slanderous and the other innocent, so that a hearer must wait for some other matter, before he can fix the meaning with such certainty as the law deems requisite, the words will he insufficient without an averment of facts fixing their meaning; and the court will not sustain words as being slanderous in Ihemselves, unless by their general and intrinsic meaning they bear a slanderous sense;(5) but if the ambiguity is ex- trinsic, that is, if the words in their general signification are slanderous, but in reference to particular circumstances and usage may be harmless, the court would deem them sufficient, and it would be for the jury to say in what sense they were used, and a verdict would of course be given for the defendant if he showed that the words were intended and understood in a harmless sense; or it seems, as was held by Lord Ellenborough, and is sustained by Parler v. 31' Queen, 8 B. Monroe, 16 ; (see, however, Allen v. Groful, 1 Cowen, 46 ;) that the defendant might show by special plea, that he had used the words in a sense in which they were not actionable : in other words, when matter of fact is required to give to words the precision of legal slander, it must be averred by the plaintiff in the declaration, but the matter of fact which takes from words a character of slander, must be shown by the defendant by plea, or (1) Kennedy v. Gifford, 19 Wendell, 296, 299. (2) Gregory ti. Lewis, 8 Queen's Bench, 841, 851. (3) Clegg D. Laffer, 10 Bing., 250. (4) Dottarer v. Bushey, 16 Penna. State, 208. (6) See Feise v. Linder, 3 Bosanquet &, Puller, 372; Brown ». Brown, 14 Maine, 317. "VAN VECHTElSr V. HOPKINS. 141 evidence under the general issue.(l) Or, as it is expressed by Lord Abinger(2) in case of a libel, "If according to their natural 'import, the words are libel- lous, — although they might be explained away, — the verdict of the jury is conclusive, but not otherwise. Where they are ambiguous in themselves, the verdict or the jury will not help them." "Whenever the words are appa- rently innocent in their meaning," said Bronson, J., (3) "they can only be made actionable, if at all, by a distinct averment that they were published and intended to be understood in a criminal sense. (4) Averments of this kind must be proved on the trial, and like all other questions of fact must be passed upon by the jury. The rule is substantially the same, where the words are of doubtful or equivocal import, and may be understood either in a criminal or an innocent sense. The jury must say in what sense they are used." Where the words have different meanings and applications, an innuendo, if it be good, will have the effect of determining upon which meaning and appli- cation, the plaintiff intends to rely; and therefore, if the innuendo be good, he cannot at the trial abandon it, and rely upon a different sense and reference of the words. (5) If, however, an innuendo is too large, as charging a meaning of which the preceding matter is not legally capable, and the matter is actionable without the innuendo, the ionuendo after the verdict, and upon motion in arrest of judgment, may be rejected as surplusage. (6) But this principle of rejecting the innuendo as surplusage applies only where the words in themselves are actionable, and the innuendo is merely useless, and does not change the sense or take away the meaning, in which the words without the innuendo would be actionable. It is frequently stated in the cases, that a verdict in favour of the plaintiff establishes the truth of the innuendoes _:(7) and that the truth of the innuendoes is admitted by demurrer, or by judgment by default. (8) But this maxim must be understood with reference to the limited office of the jury, as judges of fact only. Whether an innuendo is good in law, that is to say, whether it is fairly warranted by the language set forth, in connexion with the inducement and colloquium, is certainly matter of law :(9) and supposing it to be good, it may consist of matter of fact, or of matter of law. So far as it expresses the appli- cation and reference of the language, in respect to the person and subject of the discourse, it is matter of fact; and if the innuendo be good in law, a verdict will find the truth of it :(10) but so far as it expresses matter of law, and under- (1) See Roberts v. Camden, 9 East, 9.3, 96; Chaddook v. Briggs, 13 Massachusetts, 248, 265; Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 514; Read v. Ambridge, 6 Carrington & Payne, 308, 309; Penfold v. Westcotte, 3 New Reports, 336. (2) Hughes u.Rees, 4 Meeson & "Welsby, 204, 207. (3) TurriU v. Dolloway, 17 Wendell, 426, 429. (4) Andrews v, Woodmansee, 15 Wendell, 232. (5) Smith V. Carey, 3 Campbell, 461 ; Sellers v. Till, 4 Barnewall & Cresswell, 655; William V. Stott, 1 Crompton & Meeson, 676, 687; Mix v. Woodward, 12 Connectieut, 264, 290. (6) Roberts v. Camden, 9 Bast, 93, 95; Harvey v. French, I Crompton & Meeson, 11, 18; Beirer v. Bushfleld, 1 Watts, 23; Shults v. Chambers, 8 Id., 300, 302 ; See Commonwealth v. Snelling, 16 Pickering, 321, 336; Gage v. Shelton, 3 Richardson, 243. (7) See Peake v. Oldham, Cowper 276, 277; Mott v. Comstock, 7 Cowen, 654. (8) Tillotson v. Chetham, 3 Johnson, 56, 61. (9) See Solomon D. Lawson, 8 Queen's Bench, 828,837; Dodge v. Lacey, 2 Carter's Indiana, 216. (10) See Lindsay t;. Smith, 7 Johnson, 369, 360. 142 CONSTRUCTION AND PLEADINGS IN SLANDER. takes to aver, that certain language amounts to an imputation of a certain crime, the finding of the jury does not touch the correctness of the innuendoes. The principles as to the construction of the matter alleged, and as to the mode of declaring, above stated in regard to slander, are equally applicable to actions and indictments for libel. Language, written, as well as oral, is to be understood by the court and jury in its natural and ordinary meaning ;(1) and " shall be construed and understood in the sense in which the writer or speaker intended itj if, therefore, obscure and ambiguous language is used, or language which is figurative or ironical, courts and juries will understand it according to its true meaning and import, and the sense in which it was intended, to be gathered from the context, and from ail the facts and circumstances under which it was used."(!L) " It is quite clear from all the modern authorities," said Lord Tenterden, C. J., in the Exchequer Chamber, in a case of libel, that a court must read words in the sense in which ordinary persons, or in which we ourselves out of court, reading the paragraph would understand them :"(3) ]f the libel does not distinctly mention the party, or if it is ironical, there must be distinct averments of the meaning and application of the libel, which must be determined by the jury; and an innuendo will not be sufficienl.(4) "When that which is termed a libel,'' said the court in Hull v. Blnndy, 1 Younge & Jervis, 480, 490, "does not necessarily upon the face of it import a libel, it is requisite to connect it with certain facts, by way of inducement, in order that, so explained, it may amount to a libel, and that there may be sufiicient certainty, that what is therein stated, relates to the plaiutiif in the action." The rules relating to the averment of extrinsic facts, and to the ofiice of the innuendo, are well illustrated in Yan Vei:hten v. Hopkins (.5) " It is now a well-settled rule of law, applicable as well to indictments, as to actions for libel and slander," says the Supreme Court of Massachusetts,(6) " that it is not the oifice or province of an innuendo to enlarge or point the effect of the language used by the defendant; and if the indictment cannot be sustained on the ground of the natural and common meaning of the language, in its usual acceptation, or as pointed and rendered significant by the previous averments of extraneous facts, and the colloquia referring to them, it cannot be aided by asserting, ever so strongly, by way of innuendo, the offensive meaning of the language. Such averment, in the form of an innuendo, is not a traver- sable fact. If the indictment is good without the innuendo, it may be rejected as surplusage; if it is not good without it, the innuendo cannot make it so." With regard to the respective functions of the judge and jury, in determin- ing whether a publication is libellous; previously to Mr. Fox's Libel Act, the (1) Turrill V. Dolloway, 25 Wendell, 426. (2) Commonwealth i>. Kneeland, 20 Pickering, 206, 216; See also Cooper v, Greely, 1 Denio, 348, 358; Bush v. Sumner, 20 Penna. State, 162. (3) Harvey v. French, 1 Crompton & Meeson, 11, 18. (4) Ilex r. Home, Cowper, 184; Commonwealth v. Child, 13 Pickering, 198; Tillotson v. Cheetham, 3 Johnson, 56, 60; Miller v. Ma.xwell, 16 Wendell, 9; Mix v. Woodward, 12 Con- necticut, 264, 281; Goodrich v. Davis, 11 Metcalf, 474, 480; State v. Henderson, 1 Richardson, ISO. (6) See also Goldstein u. Foss, 2 Younge & Jervis, 146; S. C, 4 Bingham, 489; 6 Barnewall & Cresswell, 154. (6) Commonwealth v. Snelling, 15 Pickering, 321, 335. VAN VECHTEN V. HOPKINS. 143 subject had been one of great controversy in England. The practice was to leave to the jury two questions, (I.) whether the defendant was the publisher, and (II.) whether the innuendoes were made out; referring to the court to con- sider whether the writing was a libel or not.(l) That act, passed 32 Geo. III. c. 60, was a declaratory one, and put prosecutions for libel on the same footing as other criminal cases, and enacted that the jury may give a general verdict of guilty, or not guilty, upon the whole matter in issue, and shall not be directed by the court to find the defendant guilty, merely on proof of the publication of the paper by the defendant, and of the sense ascribed to it in the indictment.('2) And although this act was confined to criminal proceedings, yet the practice is now similar in civil actions. In a recent English case (3) Parke, B., said, " It has been the course for a long time for a judge, in cases of libel, as in (1) See The Kings. Shipley, Douglass, 73; The Kingu. E. Topham, 4 Term, 126, 127. (2) The controversy referred to in the text, was very early waged in this country. See the account given in Brown's "Forum, or Forty Years' Full Practice at the Philadelphia Bar," vol. i., p. 280, of the celebrated trial, hy the Quakers, in 1692, of William Bradford, the well known first printer of Pennsylvania, and New York. Mr. Brown's account is as follows: "In 1692, a quarrel took place hetween the Quaker magistracy and a part of the Quaker colonists, on a question partly civil and partly religious; and Bradford, though taking no part, apparently, in the quarrel itself, printed a pamphlet of one of the disputants, George Keith, who had taken part against the dogmas which the Quaker llahhis who then thundered from the seats of authority now asserted. Bradford was arrested, and the sheriff being sent to search his office, took possession of his press, tools, type, and also of the * form,' as printers call it, (which he' found still standing,) from which the obnoxious pamphlet had been printed. The trial was had in form before two Quaker judges, Jennings and Cook, assisted by others. A curious cotemporary account of it still remains to us. The prisoner conducted his case in person, and managed it with a fearles'sness, force, acuteness and skill which speaks very highly for his intelligence and accurate conception of legal principles. When the jury were called, he challenged two of them because they had formed and expressed opinions, not as to the fact of his having published the paper, but as to its being of a seditious character, opinions which he himself had heard them express. The Prosecuting Attorney says to Bradford, after he had made his exception : " ' Hast thou at any time heard them say that thou printed the paper? for that is onbj what they are to find.' " Bradford. — 'That is not only what they are to find. They are to find also whether this he a seditious paper or not, and whether it does tend to the weakening of the hands of the magistrates.' "Attorney. — 'No, that is matter of law, which the jury is not to meddle with, but find whether William Bradford hath printed it or not.' "Justice Jennings — ' You are only to try whether William Bradford printed it or not.' "Bradford. — 'This is wrong, for the jury are judges in the law, as well as in the matter of fact.' "Justice Cook. — ' I will not allow these exceptions to the jurors.' "We have, therefore," says Mr. Brown, "in this trial, evidence of the fact, interesting to the whole press of America, and especially interesting to the Bar and the Press of Pennsylvania, that, on the soil of Pennsylvania, the Father of her Press asserted, in 1692, with a precision not since surpassed, a principle in the law of libel hardly then conceived any where, but which now protects every publication in this State and in much of our Union; a principle which English judges, after the struggles of the great whig Chief Justice and Chancellor, Lord Camden, through his whole career, and of the brilliant deelaimer, Mr. Erskine, were unable to reach; and which, at a later day, became finally established in England only by the enact- ment of Mr. Fox's libel bill in parliament itself." (3) Parmiter v. Coupland, 6 Meeson &, Welsby^^lOS, 108. 144 CONSTRUCTION AND PLEADINGS IN SLANDER. other cases of a criminal nature, first to give a legal definition of the offence, and then to leave it to the jury to say, whether the facta necessary to consti- tute that offence are proved to their satisfaction ; and that whether the libel is the subject of a criminal prosecution, or civil action. A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt or ridicule, is a libel. Whether the particular publication, the subject of inquiry, is of that character, and would be likely to produce that effect, is a question upon which a jury is to exercise their judgment, and pronounce their opinion, as a question of fact." In another English case,(]) the same practice was approved in the Queen's Bench : But Lord Denman, C. J., added, that there is one case in which a pure question of law may arise ; for if the judge and jury think the publication libellous, still, if on the record, it appears not to be so, judgment must be arrested : and see to this effect, Hearne v. Stofvell, 12 Adolphus & Ellis, 719, and Hughes v. liees, 4 Meeson & Wellsby, 204, 206. In deciding on doubtful language the jury arc to be guided not by intention but tendency;(2) the damages will be aggravated by proof of intention to injure, but the first question for the jury on a trial for libel, is whether the publication is injurious to the character of the plaintiff. (.3) In Massachusetts, (4) the practice stated in cases appears to be recognised; and in Maine, (5) in a civil action for libel, it is said, that "in every case it is believed to be the province of the jury under the instruction of the court, to determine the im- port of the language used." In New York; The People v. Crosvjell, 4 John- son's Cases, 337, the Supreme Court were equally divided on the question whether at common law the court or the jury were to pronounce as to the writing being a libel; Kent and Thompson, J's., being of opinion that it belonged to the jury, and Lewis, C. J., and Livingston, J., that it was a matter for the court. This led to the passing of a declaratory act(6) similar in this respect to Mr. Fox's Act. By the new constitution of that state, (7) the jury were de- clared in all prosecutions or indictments for libel to have the right to determine the law and the fact; and the Court of Errors has decided (S) that this was applicable to civil, as well as criminal cases. The Supreme Court has said that the safer practice was for the judge to define what is a libel in point of law, and then leave it to the jury to say whether the case falls within that defini- tion. (9) In Pennsylvania, by the 7th section of the Bill of Rights, "in all indictments for libels the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases." The inducement in one count, that is, the averment of those extrinsic facts which show that the words are slanderous or libellous against the plaintiff, will serve for other counts, if they are made to refer to it.(lO) (1) Baylis v. Lawrence, 11 Adolphus & Ellis, 920. (2) Fisher v. Clement, 10 Barnewall & Cresswell, 472. (3) Chalmers v. Payne, 2 Crompton, Meeson & Roscoe, 166, 157, 158. (4) Goodrich v. Davis, 11 Metcalf, 474, 480. (5) Usher v. SeTerance, 20 Maine, 9, 17. (6) Act of April 6th, 1805, ses?. 28, u. 90. (7) 8th section of the 7th article. (8) DoUoway v. Turrill, 26 Wendell, 38.3. (9) Snyder v. Andrews, 6 Barbour's S. Ct., 43, 60. (10) Loomis V. Swick, 3 Wendell, 205; Nestle v. Van Slyclr, 2 Hill's N. Y., 282, 286; Canter- VAN VECHTEN V. HOPKINS. 145 When the plaintiff is referred to in the third person, and his name is not mentioned in the words set forth, it is necessary to aver a oolloquium of and concerning the plaintiff, and then to aver that the words were spoken of and concerning him; and both of these are required. If the declaration aver a colloquium of and concerning the plaintiff, but does not aver that the words were spoken of and concerning him, the omission of the latter averment will be bad on special demurrer ;(1) but not after verdict, nor probably on general demurrer ;(2) but the want of both, that is, a complete omission of a collo- quium of and concerning the plaintiff, would be bad after verdict, and no innu- endo could help it j(3) and in an action for libel, each specification must be averred to be "of and concerning" the plaintiff ;(4) and in Clement v. Fisher, 1 Barnewall & Cresswell, 459, 462, it was decided on error, that an allegation, merely, that the defendant published, of and concerning the plaintiff, a libel containing the following matter, without alleging that the particular matter set out was of and concerning the plaintiff, was insufficient, when there was nothing in the matter itself which clearly applied to the plaintiff, nor any dis- tinct innuendo applying it. But when the words are addressed to the plaintiff in the second person, it is enough to aver a colloquium with the plaintiff, without averring that the words were said of and concerning him, for that is implied of course. And if the plaintiff's name is mentioned in the words, it is enough after verdict. (5) When the words are not actionable except in connexion with an averment, and such averment is made, the omis- sion of a colloquium of and concerning the matter alleged, would be fatal after verdict; (6) but where they are themselves actionable, when connected with the plaintiff, it is enough to aver that they were " of and concerning" him, without averring that they were " of and concerning," such a matter (7) It has already been stated, that the omission of an innuendo could probably not be taken advantage of after verdict; it was said, however, in i?oe??a v. Follon, 7 Blackford, 377, that it is so only where the words are actionable in themselves, and that, where the words are not actionable in themselves, but only by the aid of a oolloquium, an omission of the innuendo is bad after verdict ; a distinction which does not seem to be well founded. In actions of slander and libel, it is not necessary to allege that the utter- ance or publication was malicious; at least, the omission is good after verdict;(8) but in Taylor v. Kneeland, 1 Douglass, 68, it was said, that it would be bad on special demurrer. In Rowe v. Roach, 1 Maule & Selwyn, 304, it was held, on general demurrer, that, where a publication was averred to be malicious, bury V. Hill, 4 Stewart & Porter, 224; Shultz v. Chambers, 8 Watts, 300; per Lord Abinger, in Hughes v. Rees, 4 Meeson & Welsby, 204, 206. (1) Titus V. Follet, 2 Hill's N. T., 318. (2) Nestle v. Van Slyck, Id., 282. (3) Milligan v. Thorn, 6 Wendell, 412; Sayre v. Jewett, 12 Id., 135; Cave t, Shelore, 2 Munford, 193. (4) The State v. Brownlow et al., 7 Humphreys, 63. (5) Brown v. Lamberton, 2 Binney, 35, 37. (6) Cummins v. Butler, 3 Blackford, 190. (7) O'Brien ». Clement, 4 Dowling &, Lowndes, 663 ; Harper u. Delf, 3 Indiana, 225. (8) Bromage v. Prosser, 4 Barnewall & Cresswell, 247, 254; King v. Boot, 4 Wendell, 114, 138; Miles v. OldBeld, 4 Yeates, 423, 426. VOL. I. — 10 146 CONSTRUCTION AND PLEADINGS IN SLANDER. injurious, and unlawful, the omission of an allegation that it was false, was not objectionable. In actions of slander, except in the case of imposing the crime of felony, which is a form that has acquired a definite meaning in the law, and signifies a. legal charge of felony before a magistrate ;(1) it is not enough to state in the declaration the efiect of the words uttered, or that the defendant charged the plaintiff with the commission of such a crime ; the words themselves, in which the slander is conveyed, must be set forth in the declaration, and the omission is bad after verdict, and on error; and this applies equally to cases of special damage. (2) In Pennsylvania, the law se,ems to be brought to the same point.(3) In Massachusetts, however, a different practice prevails; it is there held, that the declaration may aver that the defendant charged the plain- tiff with such a crime ; which refers the whole matter to the court and jury at the trial ; and, if either party apprehends surprise from the offer of proof of facts which he cannot anticipate, he may ask for a specification, or bill of par- ticulars; (4) and this practice seems to have been sanctioned in South Caro- lina.(i5) Where the words were spoken in a foreign language, the proper mode of declaring is, to state the words in the foreign language, and to aver their signification in English, and that they were understood by the hearers.(6) Different sets of words spoken or written at one time, and importing the same charge, may be included in one count for slander or libel ;(7) but not distinct calumnies published at different times. (8) In regard to the proof of words ; the rule is, that the words must be proved substantially as they are laid; it is not enough to prove words of the same effect or import, or conveying the same idea ; the words must be substantially the same words, and it is not sufficient that they contain substantially the same charge, but in different phraseology ; equivalent words of slander will not do ;(9) and words alleged in English will not bo supported by proof of words in another (1) Blizard v. Kelly, 2 Barnewall & Cresswell, 283 ; per Gibbs, C. J., in "Wood v. Brown, 1 Marshall, 522, 523 ; Hill v. Miles, 9 New Hampshire, 9, 12 ; Haselton .,. Weare, 8 Vermont, 480. (2) Cook V. Cox, 3 Maule & Selwyn, 110; Gutsole d. Mathers, 1 Meesou & Welsby, 495; Ward V. Clark, 2 Johnson, 10, 12; Blessing v. Davis, 24 Wendell, 108; Parsons i. Bellows, 6 New Hamshire, 289; Bassett v. Spofford, 11 Id., 127; Hasleton v, Weare, 8 Vermont, 480; Browne V. Browne, 14 Maine, 317. (3) Yundt V, Tundt, 12 Sergeant & Rawle, 427, which appears effeetiTely to overrule Ken- nedy u. Lowry, 1 Binney, 393, 395, though some doubts seem to be expressed in Tipton t. Kahle, 3 Watts, 90, and Long v. Fleming, 2 Miles, 104. (4) See Nye u. Otis, 8 Massachusetts, 122; Whiting v. Smith, 13 Pickering, 364; Pond v. Hartwell, 17 Id., 269 ; Allen v. Perkins, Id., 369 ; Clark v. Munsell, 6 Metcalf, 374; Bunnell v. Piske, 11 Id., 6S1. (5) Grubbs v. Kyzer, 2 M'Cord, 305. (6) Wormouth v. Cramer, 3 Wendell, 394; Hickley v. Grosjean, 6 Blackford, 352; Zenohio V. Axtell, 6 Term, 162 ; Yundt v. Yundt; Settman v. Retz, 3 Sandford, 734; Zeig v. Ort, 3 and 4 Chandler, (Wisconsin) 30. (7) Rathhun v. Emigh, 6 Wendell, 407; Milligan v. Thorn, Id., 413 ; Churchill v. Kemble, 3 Ohio, 409. (8) Hughes V. Rees, 4 Meeson & Welsby, 204, 206; Chatham v. Tillotson, 5 Johnson, 430. (9) Olmstead d. Miller, 1 Wendell, 506,509; Wormouth v. Cramer, 3 Id., 394; Basset i>. Spofford, 11 New Eempshire, 127; Linville v. Earlywii.e, 4 Blackford, 470; Watson v. Musiok, 2 Missouri, 29; Cooper i'. Marlow, 3 Id., 134; Berry v. Dryden, 7 id., 324. VAN VECHTEN V. HOPKINS. 147 language ;(1) and the same is true of libel by signs. [And in a criminal case where the indictment charged that the defendant set up in public, a board on which was a painting or picture of a human head, and the proof was a board having a profile cut on the board, but not painted, it was held a fatal variance. (2) And for variance in criminal cases, see States. Goodman, 6 Richardson, 389.] It is not always necessary, however, to prove all the words laid in the declaration ; such of the words as do not form an integral part of the slander and do not qualify the slander, need not be proved, provided those which are proved embody the slander, and are sufficient to sustain the cause of action ; but such part as essen- tially constitutes the slander, must be proved precisely as laid. (3) And while the proof of speaking is for the jury, the correspondence between the words spoken and laid is for the court. (4) A witness is not allowed to state his im- pression or construction of the words that were used. (5) It is a general rule, also, that the words must be proved in form as they are laid ; words laid in the second person will not be supported by proof of words spoken in the third Tper- aon, nor vice versa ;(Q) though the contrary has been held in Kentucky ;(7) nor will words laid affirmatively be supported by evidence of words spoken interrogatively ;(8) but if the words are proved to have been spoken afiirma- tively as laid, it makes no diiference that they were spoken in answer to a question. (9) In Walters v. Mace, 2 Barnewall & Alderson, 756, the words, " This is my umbrella; and he stole it from my back door," were decided not to be sustained by proof of saying, in a house where the umbrella was not, " It is my umbrella," &c. With regard to a variation in the positiveness of the assertion, the English cases are more strict than the American : the former hold thatj if a positive affirmation is laid, and the affirmation as proved is (1) KeerhoUs v. Becker, 3 Denio, 346, 348. (2) State V. Powers, 13 Iredell's Law, 5. (3) Maltland v. Goldney, 2 East, 426 j Orpwood v. Barker, 4 Bingham, 261 ; Compagnon v. Martin, 2 Blackstone, 790 ; Fox v. Vanderbeek, 5 Cowen, 513, 515; Loomis v. Swick, 3 Wen- dell, 205; Purple v. Horton, 13 Id., 1; Nestle v. Van Slyok, 2 Hill's N. Y., 282; Nichols v. Hays, 13 Conneetiout, 156, 162; Hancock v. Stephens, 11 Humphreys, 609; Zeig v. Orr, 3 and 4 Chandler (Wisconsin) 30 ; Creelman v. Marks, 7 Blackford, 281, 282 ; Isely v. LoYejoy, 8 Id., 462; Moore t>. Bond and Wife, 4 Id., 458; Wheeler v. Kobb, 1 Id., 330 ; Hogg a. Wilson, 1 Nott & M'Cord, 216; Morgan «. Livingston, 2 Richardson, 674; Poppenheim i;. Wilkes, 1 Strobhart, 275 ; Slocumb v. Kuykendall, 1 Scammon, 187 ; Patterson et al. v. Edwards et al., 2 Gilman, 720, 723 ; Chandler v. Halloway, 4 Porter, 18 ; Williams and Wife v. Bryant and Wife, 4 Alabama, 44; league v. Williams, 7 Id., 844; Easley v. Moss, 9 Id., 266; Scott v. M'Kinnish and Wife, 15 Id., 662, 664; Johnston v. Tait, 6 Binney, 121 ; Hume v. Arrasmith, 1 Bibb, 165. (4) Foster v. Small, 3 Wharton, 138, 142. (5) Williams v. Miner, 18 Connecticut, 464, 467; Harrison v. Bevington, 8 Carrington & Payne, 708, 710 ; White v. Saward, 33 Maine, 322. (6) BuUer's Nisi Prius, 5 ; Stanard v. Harper, 5 Manning & Eyland, 295 ; M'Connel v. M'Coy, 7 Sergeant & Rawle, 223, overruling Tracy v. Hopkins, 1 Binney, 395, note ; Foster v. Small, 3 Wharton, 138, 142 ; .Cock i>. Weatherby, 5 Smedes & Marshall, 333 ; Culbertson i;. Stanley, 6 Blackford, 67, 68 ; Wolf v. Kodifer, 1 Harris & Johnson, 409 ; Williams v, Harrison, 3 Mis- souri, 411. (7) Huffman v. Shumate, 4 Bibb, 515; Darley«. Gaines, 1 Dana, 529. (8) Barnes v. Holloway, 8 Term, 150 ; Teates v. Keed, 4 Blackford, 463, 465 ; Long v. Flem- ing, 2 Miles, 104; See, however. Commons r. Walters, 1 Porter, 377. (9) Jones v. Chapman, 5 Blackford, 88, 148 CONSTRUCTION AND PLEADINGS IN SLANDER. qualified by the expression, "I have heard," or "I understand," it ia a fatal variance ;(1) but some American cases have held that it is not a variance, if a positive assertion in the declaration, is qualified in the proof by such language, as, "I believe that," &o.;(2) or, "If report be true;" (3) or, "If I am not misinformed ;" (4) for other cases where differences have been held fatal, see cases cited below ;(5) and the same way for those where they have not been so held;(6) where the libel was by signs, see State v. Powers, 13 Iredell's Law, 10. If words have been used, which in themselves import a charge of perjury, it is not necessary to prove that they referred to any suit, nor even that any suit was pending; but if there be a charge of false swearing, which the collo- quium refers to a particular suit, that suit and a false swearing in it must be proved as laid. (7) The rules are quite the same in regard to libel. The libel may either be set out entire, according to its tenor, or only those parts which are relied on as actionable may be stated in the declaration ;(8) but either way, the words them- selves must be set out. (9) It must be alleged that the matter complained of was "to the tenor following" or "in these words" or "as follows;" and if it be " in substance as follows," it is bad on demurrer, or in arrest of judgment;(10) and the words must be proved precisely as they are laid in the declaration.(ll) Where only extracts from the libel have been set out, the defendant has a right to read the whole publication in evidence ;(12) it will not be a variance though the libel in evidence contains matter not set out in the declaration, provided the meaning be not varied ;(13) but if the omitted parts make a material altera- tion in the sense, and explain and render innocuous what is in the declaration, the variance will be fatal; (14) and when a libel is set out, not in hsec verba, but as containing the following matter, proof of the publication of part of the actionable or libellous matter charged would be sufficient :(15) it is also com- petent for the plaintiff to abandon prosecution, or enter a nolle prosequi as to (1) Smith i>. Knowelden, 2 Scott's New Reports, 657; Cook v. Stokes, 1 Moody & Robinson, 2Z1. (2) Beecliler v. Steerer, 2 Wharton, 314, 329. (3) Smith V. Stewart, 5 Barr, 372. (i) Treat v. Browning, i Connecticut, 409, 414. (5) Brooks v. Blanchard, 1 Crompton k Meeson, 779; Shepherd v. Bliss and Wife, 2 Starkie, 510 ; Tempest v. Chambers, 1 Id., 67 ; Hancock v. Winter, 7 Taunton, 205. (6) Robinson i;. Willis, 2 Starkie, 194 ; Dancaster «. Hewson, 2 Manning & Bjland, 176; Nichols V. Hayes, 13 Connecticut, 156, 163. (7) Emery v. Miller, 1 Denio, 208. (8) As to the form of doing this, see Tabart r. Tipper, 1 Campbell, 350, 353, and Wier v. Hoss and Wife, 6 Alabama, 882. (9) Wood V. Brown, 6 Taunton, 169. (10) Wright V. Clements, 3 Barnewall & Alder3on,603; Solomon ». Lawson, 8 Queen's Bench, 823, 829; The State v. Brownlow et al., 7 Humphreys, 63 ; Commonwealth v. Wright, 1 Gush- ing, 46, 64; Bagley v. Johnson, 4 Richardson, 22. (11) Whittaker t!. Freeman, 1 Devereux, 271,285 ; Walsh ». The State, 2 M'Cord, 248; Harris V, Lawrence et al., 1 Tyler, 156. (12) Cooke V Hughes, Ryan &, Moody, 112; Morehead v. Jones, 2 B. Monroe, 210. (13) M'Cooms V. Tuttlo, 5 Blackford, 431, 432. (14) Rutherford v. Evans, 6 Bingham, 451, 458; Weir v. Hoss and Wife, 6 Alabama, 882. i (15) Metcalf «. Williams, 3 Littell, 387, 390. VAN VECHTEN V. HOPKINS. 149 part of the libel. (1) If the libel in evidence contain different woj'ds, there is a variance; but if the verbal or literal deviations do not make different vpords, there is no variance. (2) The allegation of any fact in the slander or libel dis- penses with proof of that fact on the part of the plaintiff should it become necessary to him. (3) In actions of slander and libel, a new trial is never granted on account of the magnitude of the damages given by the jury, unless the excess is so outrageous as to evince passion, prejudice, partiality or corrup- tion ,(4) but when the verdict can be referred to no rational principle, but there must have been on the part of the jury, if not corruption, at least some entire misapprehension of the facts of the case, or of the law upon which the damages were to depend, it is not only the right, but the duty of the court to grant a new trial. (5) [Whether a corporation can be the subject or author of an action for libel, slander, or malicious prosecution, is a point which has been discussed only of late times. We had discussed and decided it in America, before it had been discussed at all in England. On the other hand, we have decided it in different ways here, while England, more cautious, has avoided that difficulty, by not de- ciding it at all. In Ghildn vs. The Bank of Missouri, 17 Missouri, 214, decided in October of 1852, in Missouri, a suit by an individual against the corjjoration, the declaration alleged that " the defendant" (a bank) " had falsely accused and caused to be accused of embezzlement, and upon this charge had unjustly, and maliciously, and without probable cause, caused him to be arrested and imprisoned," &c. &o. It was decided that the action would not lie. " If it wore an action of slander," says the Court, " we should say, at once, that it could not be maintained. The bank is a corporation. It cannot utter words. It has no tongue, no hands to commit an assault and battery with ; no mind, heart or soul to be put into motion by malice ; therefore, if it was an action for an assault and battery, or for a malicious prosecution, or for slander, we should say at once, that it could not be maintained." The action, the Court declared, was one sui generis, and on the whole case thought, that while the servants, or agents, or officers of the bank might be responsible, the corporation itself could not be. The same question, essentially, arose in England in 1854, Stevens vs. Med- land Counties Railway, 10 Excheq. 356, but was not decided. Baron Alder- son, thought the action could not be maintained. Baron Piatt, seems to have thought it could be. Baron Martin, was silent. And, it arose also in our own country in July, 1853, where, (22 Connecticut, 538,) it was decided, (by a divided Court, however,) after full argument, though the case next mentioned, in 8 Zabriskie, seems to have been unknown at that time that the (1) Stow V. Converse, 4 CoDnecticut, ]8, 27. (2) Weir v. Hoss and Wife, 6 Alabama, 882. (3) Bagnall v. Underwood, 11 Price, 621, 632; Yrisarri «. Clement, 3 Bingham, 432 ; Gould t;. Hume, 3 Carrington & Payne, 625, 627. (4) Tillotson v. Cheetham, 2 Johnson, 63 ; Jarvis ti. Hatheway, 3 Id., 180, 183; Coleman v, Southwick, 9 Id., 45, 61; Exparte Bailey, 2 Cowen, 479; Paddock v. Salisbury, Id., 811; Seal I.. Lewis, 2 Bay, 204; Neilson v. Emerson, Id., 439; Simpson v. Pitman, 13 Ohio, 365. (5) Steever u. Beehler, 9 Miles, 146, 152; Nettles ». Harrison, 2 M'Cord, 230; Swearinger v. Bush, 4 Teatee, 322, 325. See the subject at large in Coffin t-. Coffin, 4 Massachusetts, 1, il, ke. 150 CONSTRUCTION AND PLEADINGS IN SLANDER. action would lie. " The views of the old lawyers," said Church, C. J., " regard- ing the real nature, power, and responsibilities of corporations, to a great ex- tent, are exploded in modern times, and it is believed, that now, these bodies arc brought to the same civil liabilities as natural persons, so far as this can be done practically, and consistently with their respective charters. And no good reason is discovered, why this should not be so; nor why it cannot be done in a case like this, without violating any sensible or useful principle." And the same Judge declared, that where a document, in its nature libellous, issued in point of fact from a corporate body it could not be that it should " assail the character, and the law afford no remedy, except by a resort to insolvent and irresponsible type-setters ; and, for no better reason than that a corporation is only an ideal something, of which malice or intention cannot be predicated." Just after the time of the Missouri case, that is to say in November, 1852, Ihc Trenton Mutual Life and Fire Insurance Co. v. Perrine, was decided in New Jersey, (3 Zabriskie, 412,) in which it was adjudged after a full consideration, that " a corporation aggregate may maintain an action for a liheliot words published of them concerning their trade or business, by which they have suffered special damage." And, that "in alleging special damage, it is not always necessary to name tbe customers whose business has been lost by the defamation ; but, if the nature of the business is such as to render that impracticable, the loss of the business may be alleged generally." The case was a suit by a corporation against the editor of a newspaper, for injurious words " published of and con- cerning the company in their business, and of and concerning the directors of the company, and of and concerning the president, vice-president and secretary of the company, and of and concerning the property and concerns of the com- pany, and of and concerning the conduct and management of tbe property and concerns of the company by tbe aforesaid directors and officers of tbe company ; and special damage was charged to have resulted to the company in a loss of its business, and a diminution of its profits." The Court considered the ques- tion carefully ; admitted that there was " no precedent of such an action ; a strong presumption, though by no means conclusive against the right of action." And a stronger presumption the Court observed was to be " found in the fact that the prevailing sentiment of the profession was against it." These considerations afforded " grounds for caution." With these careful dispositions, the Court examined the matter fully on principle and analogies, and citing Tlie Eope Assurance Co. v. Beaumont, 10 Bing. N. C, as assisting its conclusion, decided that the action could be maintained, and maintained it accordingly. "It can- not be denied," said Green, C. J., "that a corporation may have a character for stability, soundness, and fair dealing in the way of its trade or business ; that this character is as essential, nay, more so, to its prosperity and success than that of a private individual; that banks, insurance companies, and money corporations generally, whose operations enter largely into the business of every community, depend mainly upon their reputation in the community for their success, and often for their very existence. Nor can it be denied that the character of corporations is more easily and more deeply affected by false and malicious allegations than that of private individuals; nor that the business of a corporation is more prejudiced by an evil name, by distrust of its responsi- bility, or of the character of its officers, than that of an individual. If, then, the reputation of a corporation and that of its officers be essential to its pros- HOWARD V. THOMPSON. 151 perity, if it may suffer pecuniary loss, and even the utter destruction of its pecuniary interests from false and malicious representations, why should it not be entitled to pecuniary redress. The tendency of modern adjudications has been, as far as practicable, to treat corporations as natural persons. They are now held liable as individuals, civilly and criminally, for torts committed by their agents or servants, while they are held amenable to the law for all injuries inflicted- by their wrongful acts. They should, upon principles of even-handed justice, be held entitled to its protection for all injuries suffered by them at the hands of others. The words may not be actionable in themselves, and may in no wise affect the business of the officer, though highly injurious to the business or interest of the corporation. The individual, therefore, can sustain no action, neither for his character, for the words are not per se actionable, nor for his property, for he has sustained no special damage. His trade or business is not affected. The right of action, then, can only lie in the corporation, whose busi- ness is affected, and whose property is injured by the publication respecting its officer." These arguments seem to me, both forcible and sound, and apply, I think, to suits against corporations as well as to those by them. A report or statement may emanate from a board of directors, as a board simply and merely. It is attested by some clerk alone, and by a seal as the signature of the corpo- ration : and all of the directors put together, from whose vote it has originated, might not in their individual influence be able to produce the damage which they produce in their corporate capacity, or be able to respond in their indivi- dual property for injury that in their corporate capacity they are able to repair.] OF THE DEFENCES TO AN ACTION FOR SLANDER OR LIBEL. HOWARD V. THOMPSON. In the Supreme Court of New York. UTICA, JULY, 1839. [reported, 21 WENDELL, 320-336.] Of the ciroiimstances which will excuse a citizen in making a communi- cation to the government in which a subordinate officer of the depart- ment is charged with peculation and fraud. By the Court, CowEisr, J.(l) This is an action in wbicb the plaintiff, Howard, complains, that while he held the office of inspector of the customs and keeper of the public stores of the United States, the defendant falsely libelled him by addressing certain letters to the secre- tary of the treasury, charging and oflFering to prove that the plaintiff (1) The Reporter's statement has been omitted. 152 DEFENCES TO SLANDER AND LIBEL. had been guilty of fraud in the execution of his trust as such keeper ; specifying particularly the conversion of timber belonging to the United States in 1832. The secretary of the treasury was the oiEcer who had legal cognizance of the complaint, and the power of removing the plain- tiff on its being substantiated. For some reason, however, the investi- gation, which we must presume was duly made, proved so unsatisfactory to the secretary, that he thought it his duty to deliver up the letters to the plaintiff; and they were used by hioi as evidence to the jury. The defendant had given notice with his plea, that he would prove the truth of his charge in bar ; and seems to have entertained the confidence of being able to do it, till, on the trial, he became so doubtful of success in convincing the jury, that on the plaintiff's resting, he avowedly aban- doned the attempt, and staked his defence : 1, upon the unwarrantable nature of the prosecution, and 2, on evidence that, though he might have been mistaken, yet the circumstances were such as to have afforded at least probable cause for the representations he had made. The first ground was presented in the form of a motion for a nonsuit, insisting that the plaintiff must, as in the ordinary ease of a malicious prosecu- tion, show a want of probable cause. The judge thought otherwise, holding that the proof given of the defendant's ill-will towards the plaintiff was enough to carry the cause to the jury. This presents the first question which we are called upon to examine. Does a complaint addressed by a citizen to the proper tribunal against another, from motives of ill-will towards the latter, subject the complainant to an action of slander, as for a libel, unless it be apparent that it was with- out probable cause ? It may be put still more shortly : is it subject to be prosecuted as a libel ? Must it not be pursued as a malicious prose- cution or complaint? This is not precisely like the case of a written communication between private persons, concerning their own affairs, nor was it addressed to a man, or a set of men, chosen by a voluntary society, a bishop or pres- bytery for example, and having, by common consent among the mem- bers, a power to redress grievance. It is, therefore, not necessary to inquire whether, in such instances, an action for a libel may not be brought in the common form. It has generally been so brought ; and, though the communication has been Ae^medi. prima facie privileged, yet I believe where ill-will towards the plaintiff has appeared, or motives of interest, and the defendant has failed in proving at least probable cause, the action has generally been sustained. The rule in respect to such mere private communications seems to have been laid down very sen- sibly by Mr. Justice J. Parke, in Cockayne v. Ilodgkisson, 5 Carr. & HOWAED V. THOMPSON. 153 Payne, 543. The defendant had made representations bv letter to Lord Anglesey against his game-keeper. In an action by the latter, the defendant failed to prove the truth, relying on the good faith with which he made the communication. The judge left it to the jury, mainly on the letter itself, whether it was such as a man would write merely wishing to put Lord Anglesey on his guard, and cause him to institute an inquiry ; or whether the defendant was actuated by malice, and wished to supplant the plaintiff. In the former case, he said the defendant was entitled to a verdict; in the latter, the plaintiff. This, too, was after very clear proof that the defendant had been told the stories which he had written to Lord Anglesey, and seems to have had probable cause. He had also been requested by Lord Anglesey to give him informatidn of anything wrong. The letter was put on the naked footing of a libel ; for it was said the defendant could not prove its truth without a plea of justification ; which is clearly otherwise where an action is brought for a malicious prosecution. The principle of the case cited, and a number of others which pre- ceded it, is very obvious. The private business of society could not be conducted without the liberty of speaking and writing in the honest pursuit of its purposes, even though, under other circumstances, the words would be slanderous ; and though all that is said be a mistake, yet the words shall not, for that reason alone, be actionable. The dis- tinction was a good^ deal considered in Bromage v. Prosser, 4 Barn. & Cress. 247, where it was allowed in a case of oral slander. And see Holt on Libels, 197, also Delaney v. Jones, 4 Esp. R. 191. But actual ill-will towards the plaintiff may raise a presumption in the mind of the jury, that the appearance of a lawful purpose was assumed in order to injure him. When they are brought to believe this, it is their duty to find that the defendant acted in fraud of the law, which gives the privilege, and award damages against him. Whenever the commu- nication is, for this or any other cause, taken out of the protective rule, the law acts upon it directly as a slander. The rule is known to be different where the communication made or caused, is in itself the institution of a judicial inquiry. There, if it be apparently pertinent, it is absolutely exempt from the legal imputation of slander ; and the party injured if turned round to a different remedy, an action for malicious prosecution ; wherein he is bound to prove in the first instance, not merely that the communication was made in bad faith ; but that it was not countenanced by probable eause. Such is the fami- liar instance of a criminal complaint addressed to a judicial magistrate or a grand jury, which results in a warrant or an indictment. 1 Cur- 154 DEFENCES TO SLANDER AND LIBEL. zon's Hawk. 554. The same thing may be said of any other definite or specific step in the progress of the cause; as the presentment of the bill in open court by the grand jury, id., or the publication of it by the clerk or prosecuting attorney upon arraignment. And yet many things may occur incidentally in the course of the cause, which would subject the speaker to an action for slander. Such are slanderous words spoken untruly and impertinently by witnesses or by counsel ; Ring v. Wheeler, 7 Cowen, 725. Such words communicated in writing would be the sub- ject of an action, as a libel. The ordinary prosecutor of an indictment may doubtless make himself liable in an action of slander in the same way, by what he may incidentally say of the case, Serjeant Hawkins lays down the rule of exemption, as it stands upon the cases in respect to the definite proceedings in a cause, without any qualification. But he throws out the idea upon his own authority, that a malicious prosecution may subject the guilty participators in it to an action, as for a libel. Hawk. P. C. B. 1, ch. 28, § 8. He does not, however, pretend to be countenanced by authority ; and it would be very diflicult to apply the suggestion even to the prosecutor of an indictment any more than to the ministers of justice. See ^^er Best, J., in Fairman v. Ives, 5 Barn. & Aid. 648. Sound policy would seem to exempt the prosecutor, to the same extent as the grand jury. Either is liable to an action for cor- ruptly procuring an indictment ; but to treat it directly as a libel, would be quite as eifectual in discouraging due inquiries concerning crime, when applied to the former, as to the latter. The law, therefore, seems to require, in such case, a remedy more specific in form, and calling for more evidence to sustain it, than it receives as sufiicient in an action for an ordinary libel. Another class of writings has, in practice, been pursued as lihels. These are such as contain false and scandalous matter, addressed to executive, administrative, or other ofiicers, entrusted with the power of appointment to or removal from inferior ofiices ; and seeking either to prevent appointments or promote removals, on charges importing want of integrity, or other causes of unfitness. Such was a petition to the council of appointment, praying the removal of a district attorney. Thorn V. Blanchard, 5 Johns. 11. 508 ; a deposition made with the view of presenting it to the Governor of Pennsylvania, containing charges against a justice of the peace, Gray v. Pentland, 2 Serg. & Rawle, 23 ; and a memorial to a board of excise, remonstrating against the grant- ing of a tavern license, Vanderzee v. M'Gregor, 12 Wendell, 545. In regard to such writings, there is certainly no authority for saying that, in form, the injured party shall be put to his action for a malicious HOWAED V. THOMPSON. 155 prosecution, complaint or remonstrance ; nor would it, perhaps, be safe to interpose such a restriction. Although the reason for giving counte- nance to information may be of as much force as that in respect to judicial prosecutions for crime, yet the precautions against ill-founded charges and irregularities in conducting them are much less ; nor is there any restraint by settled precedents and forms of proceeding. To this intermediate class between judicial prosecutions and privileged communications in regard to matters having no immediate connexion with the functions of government, the letters in question belong. The form of the action we take to be correct, but this is certainly not deci- sive of what shall be deemed full proof to sustain it. Must the plaintiif show not only malice but want of probable cause, the same as if the action had been technically for a malicious prosecution ? The evidence established no publication at large, none in the newspapers, no reading to the neighbours. The letters were addressed to the oflBcer having the power, and on whom rested the duty to remove, if the cause assigned were found by him to be true ; and they were forwarded directly to him. Nothing impertinent can be imputed to them. There is not the least doubt that, so far, they were, for the reasons assigned in Thorn v. Blanchard, and other cases already cited in connexion with that, as much without the doctrine of libel as an indictment. They were equally, not to say still more so, upon the reasoning of Fairman v. Ives and other English cases hereafter to be noticed ; for some of the latter, I think, take them absolutely out of the doctrine, under any qualificated. They very nearly resemble the printed book sought to be prosecuted in Rex v. Baille.(l) It contained an account of the abuses of Greenwich Hospital, treating the oflBcers of that institution, and Lord Sandwich in particular, who was then first lord of the admiralty, with much asperity; but copies were distributed among the governors of the hospital only. On motion for a criminal information, Lord Mansfield stopped the prosecution on the point that such a proceeding did not amount even to a 2y'ubHcation. He put it on the ground that the distribution had been confined to persons who were, from their situation, called on to redress the grievances complained of, and had, from their situation, power to do it. If this was not a publication, certainly no private action could have been maintained, as for a libel. The party must have been turned over to an action for a malicious prosecution of the complaint, in which form he must have shown, on his own side, a want of probable cause. It is better, perhaps, that such a form of action should not be exacted. There is room, I think, for saying, on principle and authority, (1) 2 Eap. N. P. 91, Gould's ed. of 1311. 156 DEFENCES TO SLANDER AND LIBEL. that on showing enough to take away the privilege, that is to say, when the party has defrauded the rule which confers it, he is a false libeller. The rule is void as to him. What facts work a nullity ? It does not follow that, because we allow an action of slander, the defendant should, therefore, be put to justify, as in the ordinary action, by proving the truth. That is not so even as to writings which concern private mat- ters. On its appearing that they are privileged, the defendant is pro- tected under the general issue, until malice is shown. When we come to information, in which not only the interests of the private citizen as related to the country, but those of the nation itself are concerned, the difiSculty of turning a case against him wherein he is presented as prima facie in the path of honest duty, certainly ought not to be less ; and both the prevailing opinions in Thorn v. Blanchard, which was decided by the court of errors, required more. They held that the action, though in form for a libel, was in the nature of a malicious prosecution. L' Hommedieu, senator, said the council of appointment being a court, if he might so call it, to hear all complaints against officers, &c., there is an implied protection for the complainants, unless it can be proved that the complaints were malicious. Clinton, senator, carried these premises out more distinctly to their consequences. He said it was incumbent on the plaintiff to prove that the petition was false, malicious, fiuA groundless ; and he goes into the reasons at length, repeating and illustrating the position. The case of Gray v. Pentland, before the supreme court of Pennsyl- vania, was of the same character; and I understand all the judges as admitting that the suit, though in form of a libel, was in the nature of an action for a malicious prosecution : though they do not, like the opinions in Thorn v. Blanchard, throw, in express terms, the onus of showing want of probable cause on the plaintiff. Fairman v. Ives, 5 Barn. & Aid. 642, v?as an action for a libel. The paper complained of was a representation by a creditor of the plaintiff, a half-pay ofiBcer, addressed to the secretary at war, charging him with fraudulently evading the payment of a debt. All the court agreed that, if the representation was honestly made, that was a defence under the general issue. Holroyd, J., mentioned as an analogous case, words spoken by a barrister in the course of a cause, in which he said, "it may not, per- haps, be sufficient to allege and show even that the words are false and malicious, without also alleging and showing that they were uttered without reasonable or probable cause." Best, J., said he did not think there was a sufficient ^wSZica^iow to support the action; and mentioned the case of Greenwich Hospital ; but adds, " if the communication be HOWARD V. THOMPSON. 157 made maliciously and without probable cause," an action will lie. In Vanderzee v. M'Gregor, 12 Wendell, 545, there was a failure to prove either malice or want of probable cause ; and the court said the plaintiff could not recover without proving express malice. It was unnecessary to go farther. The court professedly acted upon the authority of Thorn V. Blanchard ; and they could not mean to imply that you may recover on showing malice, where there appears to have been probable cause, contrary to the strong expressions in that case, nor even to deny that the plaintiff must himself show a want of probable cause. In the prin- cipal case there was nothing to throw a shade of suspicion upon the motive. It was the simple remonstrance of a neighbour against the licensing of a tippling shop, which is, I must say, somewhat unfortu- nately, still recognized as an object of legal protection, lucri causa. It was a call to withhold the privilege of peddling popular poison from hands which were believed to have abused that privilege. It is to be feared that there are too many real, not to say melancholy, causes of personal offence against dealers in alcohol; cases of private suffering which may engender hatred and malice in those who are reached by its influence ; and shall their state of mind, where they act upon probable appearances, though mistaken in the fact, be imputed to them as a fraud per se upon the protective rule ? In Fairman v. Ives, the credi- tor showed, in his letter to the secretary at war, that he must have been greatly provoked by the apparently mean evasion which the half- pay officer had practised to avoid the payment of his honest debt ; and though it turned out that the creditor was mistaken, the court held him protected hj probable cause, without regard to his state of mind. He was there personally interested : and the supposed provocation had rankled into a sinister desire to punish the delinquent — express malice of a severe complexion ; yet the protective rule was held to be unbroken. In this case, too, as we have seen. Best, J., like Lord Mansfield in the case of Greenwich Hospital, denied that the paper had been so published as to make it a libel. That is clearly going farther than did Clinton, senator, in Thorn v. Blanchard; for he thus not only demands the same measure of proof as in action for a malicious prosecution, but the same form of action mutatis mutandis, while Thorn v. Blanchard is content with the proof. If the action is to be regarded as standing on the same footing as the evidence, with one for a malicious prosecution, I need hardly go into the authorities to prove that whatever degree of malice may be shown, it is still necessary to go farther, and establish want of probable cause. The cases of Purcel v. M'Namara, 1 Camp. 199, lacledon v. Berry, id. 158 DEFENCES TO SLANDER AND LIBEL. 203, note a with id. 206, note a and the authorities there cited, are full to the point. The cases to the same point are yet more fully- col- lected in 2 Selw. N. P., Philad. ed. 1839, p. 1079, note 2. And vide fer Nelson, J., in Weaver v. Townsend, 14 Wendell, 193. I confess I am strongly inclined to think that the same quantum of proof is neces- sary in actions for this class of libels, and that the plaintiff should, therefore, have been nonsuited ; although I admit the judge was right in saying there was such proof as might be taken into the consideration of the jury on the question of express malice. But admitting the onus to lie on the defendant, the cases cited agree most clearly, that actions for petitions or remonstrances addressed to the appointing power, being quasi for a malicious prosecution, will not lie where it comes out on the whole evidence, that there was probable cause. I refer particularly to Thorn v. Blanchard, and Gray v. Pent- land, with the general remark that they are entirely sustained, at least in this, by the whole body of British authority. Adequate references will be found in Thorn v. Blanchard. The marginal notes to Gray v. Pentland state that such libels are " excused if they did not originate in malice and without probable cause." Tilghman, Ch. J., there took the view most favourable to the plaintiff, yet remarked : '' Anything which satisfies the jury that the proceedings did not originate in malice and without probable cause, is suflBcient to excuse him."(l) At any rate, all the cases which have spoken to the point, hold that probable cause, when shown by the defendant, will make out a complete defence ; or is receivable in mitigation : and so much, at least, was agreed by the learned judge, who tried the cause now before us. It was received in mitigation where the libel was published by the editor of a newspaper against an elective officer, after he had succeeded in his election.(2) Some courts have held that, even in the ordinary action of slander, the defendant may show in mitigation, that a person told him what he uttered as a slander, especially where the slander, in terms, professes to be founded on a hearsay. (3) It will never do to say that where there are circumstances raising strong suspicion of official misconduct, the friends of the officer, or persons indifferent alone, shall come within the protection. It is important that others more ready to complain, should be equally favoured. There is no reason if they bear actual ill will to the plaintiff, why this should remove from them what would be, of itself, a complete shield to the rest of the community. This brings us to the only remaining question in the case. (1) 2 Serg. & Rawle, 30. (2) Vide King v. Root, 4 Wendell, 114, 139, 143. (3) Kennedy i;. Gregory, 1 Binn. 85. HOWARD Y. THOMPSON. 159 Suppose I am mistaken as to the onus, was there not here proof of probable cause ? Or, at least, so much evidence that the judge was not warranted in withdrawing the question for the jury? The plaintiff himself admits that he took the timber entrusted to him as keeper of the public stores, and converted it to his own use, in build- ing a dwelling-house. The defendant saw, or at any rate was informed of the fact by a neighbour, who suggested that it would be well to com- municate the fact to the government. This the defendant did, at the same time drawing his own reference that the act was done fraudulently. Admitting for the present, that the plaintiff had a right thus to convert the timber, can it be said that his conduct was so entirely pure on its face, as to raise no misgivings in the minds of his neighbours ? They knew him for a public trustee ; and saw him converting to his own use, a portion of what he had in charge. They knew nothing of the manner in which he had acquired a title. Suppose one of them had seen a carrier start with a box of goods ; and overtaking him on his way, far from the eye of his bailor, had afterwards seen him in the act of break- ing bulk, and selling a part of the goods. Such a juncture of circum- stances would, in a court of justice, be prima facie evidence of larceny ; and could it be said that the spectator would be open to a malicious prosecution should he procure an indictment ? If his neighbour, hap- pening to see the same thing, should inform him of it, and urge a pro- secution, this would heighten his suspicion. It would operate as an additional cause for the prosecution. Indeed, had he merely heard of the circumstance from the observer, it is by no means certain that he would not be justified in giving information to the magistrate. In Cockayne v. Hodgkisson, before stated, the judge put it to the jury to pay, whether the defendant had been told by a third person what he had communicated in the libel ; and whether he believed it ; and we have seen that the same thing has been received as mitigating evidence in actions for common libels and slanderous words. It would not differ the case, that the carrier had secretly bought of his bailor, the articles which he took from the box, unless the defendant had been informed of the purchase. Weaver v. Townsend, 14 Wendell, 192, which was a case of malicious prosecution, turned on the fact that the defendant knew the plaintiff had a prima facie title to the property, for stealing which the defendant had caused him to be indicted. I do not see that the case at bar comes materially short of the sup- posed carrier's, except in the degree of the offence. In that, the circumstances would raise a suspicion of larceny ; in this a suspicion of embezzlement. That the act was done openly, is by no means conclusive 160 DEFENCES TO SLANDEE AND LIBEL. to the mind, nor has it much force, unless it appear that the owner ■was present or known by the peculator, to have means of promptly detecting and punishing him. With others it might be regarded as a mere affectation of conscious innocence. If the property taken was trifling in amount, with some, that might lull suspicion, while with others it might increase it, and be considered as an index to greater spoliations. "If," says Washington, J.,(l) "the plaintiff, by his folly or his fraud, exposed himself to a well-grounded suspicion, the prosecution had, at least, probable cause for its basis, and this is suiScient to defeat the action." It appears to me that the judge in this view of the matter was most clearly bound, at least, to have left the question to the jury. If it was to be decided as matter of law, and that is generally so with the question of probable cause, where the facts are undisputed, Dallas, J., (2) then, I think, he should have told the jury that probable cause had been established. But it is objected that the defendant was too late in his offer to show probable cause, after he had set up on the record, that he would prove the truth. It is a sufficient answer to say that the judge did not think so, and the defence proceeded on the ground that the proof was admis- sible. If the defendant had been denied that view, non constat but he might have pursued his notice of justification by giving farther evidence of its truth. But independent of the course thus taken, we have seen enough to say that the objection is founded on a misapplication of the cases. It is indeed generally true that such a justification, where the defendant fails to prove it, may be used as evidence of express malice ; and it is too late to waive it at the trial, and resort to mistake. (3) But the rule is coextensive with those cases only where probable cause is matter of mitigation merely. In actions for a malicious prosecution, or quasi such, where it makes a bar, the reason ceases. It was never held, that because a man pleads in bar specially, or gives notice of special matter, he shall be cut off from another defence which is receiv- able under the general issue. The contrary has often been held. (4) But more. It is not quite easy to see, that on the plaintiff's own showing, his case was exempt from a still stronger view, had the (1) Wilmarth v. Mountford, 4 Wash. C. C. R , 79, 84. (2) Hill V. Yates, 2 B. Moore, SO, 82; Pangburn v. Bull, 1 Wendell, 345; Gorton v. De Angelis, 6 Wendell, 418. (3) Patty ". Stetson, 15 Mass. E., 48 ; Walworth, chancellor, in King v, Eoot, 4 Wendell, 139, 140; Clinton v. Mitchell, 3 Johns. R., 144; Lent v. Butler, 3 Cowen, 370. (4) Levy v. Gadsby, 3 Craneh, 180, 18fi; Smith <>. Gregory, 8 Cowen, 114; Fulton Bank v. Stafford, 2 Wendell, 483 ; Bradley v. Field, 3 Id., 272. HOWARD V. THOMPSON. 161 defendant chosen to pursue it. Swartwout, the collector, had given the plaintiff leave to take the timber, and the letters alluded to him as a party to the frauds that were going on. He was called as a witness, but certainly did not make the plainest case of the matter against actual embezzlement. Admitting him to have had a right to sell the timber at auction, or otherwise, for the best price he could get ; that did not authorize him to give, any more than it did the plaintiff to take it, in exchange for an article of mere luxury, or at most, convenience, viz. : the bath house which the plaintiff volunteered to build for the United States. Nor was the manner of payment by any means the most prudent. Telling the plaintiff to carve for himself, till he was satisfied, might certainly have been no more than was due from Mr. Swartwout to him as an honest neighbour, had the timber in question belonged to him in his own right. Holding for the public, it at least laid the pro- ceeding open to invidious remark ; nor can I collect that Swartwout took any precaution to limit the amount within the measure of a quid pro quo. In short, a carte blanche was given to the plaintiff, first for himself, and secondly in favour of the poor inhabitants, for the purposes of fuel. I repeat, that all this might have been very well as a disposition of Mr. Swartwout's own property ; but that it was not technical embezzlement when applied to the public property, is by no means clear. It might not have been morally so ; but it was an instance of such gross neglect in a few things, as might well lead a citizen, jealous of the public rights, to question whether the same practices had not been extended to many things by the same men. Though itself a " trifle light as air," it disclosed a principle which might have operated as " confirmation strong" that more extensive peculation had been committed in secret, especially when taken in connexion with the late poverty of the plaintiff, his small wages, his extravagant living, and the now splendid mansion, in the erection of which he was employing the property of the nation. These things are asserted in the letter, and not contradicted by the proof. I admit, that in the ordinary action of slander, they would be presumed false. In this we have seen the presumption is reversed, and I therefore mention them. Had all the circumstances of this case been disclosed to the treasury department, I can hardly believe that its upright, able, and sagacious head would have voluntarily surrendered these letters to be used as evi- dence. In Gray v. Pentland, the court held that they could not compel the governor to produce the paper, nor would they allow parol evidence to be given of its contents. Being a complaint properly addressed to him as a visitorial magistrate, the court held, upon the ground of policy that they would not control the exercise of his discretion, nor would VOL. I. — 11 162 DEFElSrCES TO SLANDEE AND LIBEL. they allow its intended efTect to be evaded by the introduction of secon- dary evidence. In this they were fully sustained by the decisions at Westminster Hall, and several cases which might be cited from Ameri- can books. I know that the right of remonstrance may be abused ; and I cannot doubt that the secretary was pressed with what the defendant's counsel admitted at the bar : the great public services and elevated character of the plaintiff. Had the defendant printed and published his remonstrance, the case would have been far different; his privilege then would have been lost. Even the privilege of parliament is forfeited by a member publishing a slanderous speech or a slanderous report. But, for aught that appears, these letters have performed no other oflBce than furnishing a sort of information, vital, above all things, to the safe ope- ration of the fiscal department of the government. At any rate, what- ever may be the general merit of the plaintiff, and however innocent he may be in the particular matter, we cannot hold the defendant criminal for thus communicating what the plaintiff has been so unfortunate as to give him probable cause for supposing to be true. New trial granted. There are two kinds of defence, which constitute a complete bar to recovery in actions of slander and libel : one, which is called a justification, consists in showing the entire truth of the charge, and this must always be specially pleaded : the other consists in showing such circumstances as take away malice from the utterance or publication, by showing a just occasion and an autho- rized motive for the speaking or writing : and matter of the latter kind may either be shown under the general issue ;(1) or, may be specially pleaded, by showing that the speaking or writing was on a lawful occasion, and was made under a belief of its truth and without maUce, or, at least, honestly and bona fide.{i) This latter kind of defence is founded upon the consideration, that the business of society could not be conducted without the liberty of speaking and writing, in the honest pursuit of its lawful purposes ;(3) and it has nothing to do with the truth of the charges, but only with the' rightfulness of the occasion, and the integrity of the motive, of their utterance. [The statute of limitations is hardly to be regarded in speaking of defences, and is mentioned only for com- pleteness^ and because it is spoken of under these heads.] (4) (1) Lillie V. Price, 5 Adolphus k Ellis, 645 ; O'Brien v. Clement, 15 Meeson A Weleby, 436, 4.37; Woodward D. Lander, 6 Oarrington & Payne, 648, 649; Torrey ti. Sield, 10 Vermont, 353, 414 ; Chapman v. Calder, 2 Harris, 366, 369. (2) Smith V. Thomas, 2 Bingham's N. C, 372, 381 ; Hastings v. Lusk, 22 Wendell, 410, 416 ; Dunn V. Winters, 2 Humphreys, 612; Torrey v. Field. (3) See Howard v. Thompson, 21 Wendell, 320, 324. (4) Under the New York code, which enacts that a defendant may set up as many defences and counter claims as he may have, and which in this respect subTcrts the rules of common HOWARD V. THOMPSOJSr. 163 [As we shall see in the notes to the next case, circumstances in mitigation of damages are sometimes given in evidence, there being in fact no "defence" to the action itself. Defences to the action and circumstances in mitigation of damages are, however, very distinct things, and if circumstances in mitigation are set up as a defence they are a proper subject of demurrer.] (1) I. In regard to a justification When the defendant relies upon the truth of his charge, as a bar to recovery, he must plead it specially, and cannot give it in evidence under the general issue. (2) "No rule can be more firmly established than that the defendant cannot give in evidence the truth of the imputation, without pleading such truth as a justification. Since the case of Underwood v. Parks, there has never existed a doubt on the subject." Per Tindal, C. J., in Manning v. Cle- ment, 7 Bingham, 362, 367. As this defence is deemed an odious one, the rules in relation to it^ are strict. The justification must be of the specific charge in the declaration ; and it must be as broad as that charge is; if it go beside it, or fall short of it, it is nought; it must be in point of law, identical with it. (3) [If the defendant fail in an attempt to prove it true, he is entitled to no benefit from the evidence which may have tended in that direction. There is no such thing as a half way justification.] (4) Hence on a charge that the plaintiff had criminal intercourse with A., at one place, the defendant cannot justify that he had criminal intercourse with the same person at another place. (5) It is necessary to justify, both, the words, and the actual meaning of them. On the one hand, it is not enough to justify the words, literally ; the charge must be justified in its full, legal, and effective sense ;(6) and on the other hand, it is not enough merely to justify the sentiment contained in the words; the plea law pleading, it has been held that on " an action for slander the 'defendant may deny the uttering of the words, and, as an additional defence, set up by way of justification, that the words, if spoken, were true," Buhler ». Wentworth, 17 Barbour, 649. (1) Mathews v. Beach, 5 Sandford, 256. (2) Smith V. Richardson, Willes, 20; Underwood v. Parks, 2 Strange, 1200; Barns r. Webb, 1 Tyler, 17; Waggstaff v. Asbton, 1 Harrington, 503, 506 ; Henson v. Veateh, 1 Black- ford, 370; Arrington v. Jones, 9 Porter, 139: Douge v. Pearce, 12 Alabama, 128, 130; Thompson v. Bowers, 1 Douglass, 322; Taylor ». Robinson, 29 Maine, 323, 327; Smith v. Smith, 8 Iredell, 29, 33. (3) Weaver v. Lloyd, 2 Barnewall & Cresswell, 678; Mountney v. Walton, 2 Barnewall k Adolphus, 673; Smith v. Parker, 13 Meeson & Welsby, 458; Smith v. Richardson, Willes, 20; Belsham v. Blackwood, 11 C. B., [73 E. C. L.] Ill ; Andrews v. Vauduzer, 11 Johnson, 38 ; Sterling v. Sherwood, 20 Id., 204; Skinner v. Powers, 1 Wendell, 451; Stillwell i-. Barter, 19 Id., 487, 490; Cooper v. Barber, 24 Id., 105, 107; Frederitze o. Odenwalder, 2 Teates, 243 ; Stow V. Converse, 4 Connecticut, 18, 33 ; Mix v. Woodward, 12 Id., 264, 281 ; Torrey v. Field, 10 Vermont, 353 ; Gage v. Robinson, 12 Ohio, 250; Matthews v. Davis and Wife, 4 Bibb, 173 ; Swann i\ Rary, 3 Blackford, 298; Kent «. David, Id., 301, 303; 2 Smith's Leading Cases, 65, 735, Am. Ed. (4) Eero v. Rusooe, 4 Corns., 165. (5) Sharp v. Stephenson, 12 Iredell, 348 ; on the subject of this head of " Justification, see notes to J'Anson v. Stuart, 2 Smith's L. C, 37. (6) Bdsall V. Russell, 5 Scott's Ifew, 801, 814; S. C, 2 Dowling's N. S., 641; Smith v. Packer, 2 Dowling &, Lowndes, 394; O'Brien i'. Bryant, 4 Id., 341; Fidler v. Delavan, 20 Wendell, 57 ; Ricket i;. Stanley, 6 Blackford, 169 ; Snow v. Witeher, 9 Iredell, 346. 164 DEFENCES TO SLANDER AND LIBEL. must justify the same words that are in the declaration, or, at least, so many of them as are actionable. (1) If, however, the plea justify the truth of the mate- rial and substantial imputation contained in a libel, it will not become insuflS- cient, because it does not extend to every epithet or term of general abuse which may accompany the imputation. (2) Where a libel is divisible, a part, separable from the rest, may be justified, and " not guilty" pleaded as to the residue. (4) Although the charge which is made the foundation of the action, is general, a general plea of the truth of the matters set forth in the declaration is not good : the particular acts done by the plaintiff, which the defendant relies upon as constituting the charge, must be set forth, that the court may judge whether the facts warrant the charge which has been made. (4) , Where some crime is charged in the slander or libel, and there is a justifica- tion of the truth of it, the plea must contain the same degree of certainty and precision, as are required in an indictment for the crime ; and must be supported by the same proof that is required on an indictment for the crime. Thus, in regard to a charge of perjury, a justification must show, that the false swearing was in a judicial proceeding, where a lawful oath had been administered, and in a material point, and was absolute and wilful ; and by the weight of au- thorities (Maine being apparently otherwise), (5) the plea must be sustained by the oaths of two witnesses, or by one witness and corroborating circum- stances. (6) In New York, Massachusetts, Pennsylvania, and some other states, notice of the special matter may be given with the general issue, with the same effect as if pleaded ; and the rule is, that such a notice must contain as distinct an allegation of the grounds of the defence as would be stated in a special plea, although it need not have the technicality of a special plea ; it need not partake of the form of a special plea, but all the substantial facts necessary to constitute a good special plea must be averred. (7) The record of the plain- tiff's conviction for the crime has been held to be prima facie evidence of the truth of the plea, if the defendant in the civil action was not a witness on the trial of the indictment; but it is not conclusive evidence of guilt; and is not (1) Skinner v. Grant, 12 Vermont, 456, 462. (2) Morrison v. Harmer, 3 Bingliam, N. C, 759, V67. (3) Clarkson v. Lawson, 6 Bingbam, -^iST; Clarke r. Taylor, 2 Bingham's N. C, 654, 664; M'Gregor v. Gregory, 1 Meeson & Welsby, 287. (4) J'Anson n. Stuart, 1 Term, 748 ; Jones v. Stevens, 11 Price, 235 ; O'Brien v. Clement, 4 Bowling & Lowndes, 343; Hiekinbotham i'. Leach, 2 Bowling, N. S., 270; S, C, 10 Meeson & Welsby, 361; O'Brien v. Clement, 16 Id., 159, 165; Van Ness v. Hamilton, 19 Johnson, 349, 368 ; Torrey v. Field, 10 Vermont, 353, 408 ; See, however, Cooper v. Greeley, 1 Benio, 348, 364. (5) Folsomt). Brown, 5 Foster, 122. (6) Woodbeck v. Keller, 6 Cowen, 118 ; Bissell v. Cornell, 24 Wendell, 354, 357; Hopkins r. Smith, 3 Barbour's Supreme Court, 699, 602 ; Steinman i>. M'Williams, 6 Barr, 170, 177 ; Parke p. Blaoklston, 3 Harrington, 373, 378; Steele r. Phillips, 10 Humphreys, 463; M'Glemery i-. Keller, 3 Blackford, 488; Offut v. Earlywine, 4 Id., 460; Byrket v. Monohon, 7 Id., 84; Lanter V. M'Ewen, 8 Id., 495, 496; Wonderly u. Nokes, Id., 589; Swails v. Butcher, 2 Carter's Indiana, 84; Barling v. Banks, 14 Illinois, 40 ; Crandall v. Bawson, 1 Gillman, 666 ; Coaltor V. Stuart, 2 Terger, 225; Jenkins ti. Cockerman, 1 Iredell, 309. (7) Shepard -u. Merrill, 13 Johnson, 476 ; Mitchell v. Borden, 8 Wendell, 670; Bissell v. Cornell, 24 Id., 364, 357 ; Brlckett v. Bavis, 21 Pickering, 404, 406 ; Bevinells v. Aikin, 2 Tyler, 75; Thompson v. Bowers, 1 Bouglass, 322. HOWARD V. THOMPSON". 165 even admissible, if the party was a witness. (1) As to the right of the defendant in an action for slander or libel, who has pleaded the truth of the matter, to file a bill of discovery in chancery, and compel his adversary to admit the truth of the allegations in the alleged libel, see March v. Davidson, 9 Paige, 580. A discovery can never be enforced, where it would render the plaintiff subject to a criminal prosecution, or to a penalty, or forfeiture, or make him infamous. It is held in most of the States, though not in Indiana nor in Illinois,(2) to be an evidence of malice, and an aggravation of the injury, to file a plea in justification, without being able to support it by adequate proof ;(3) and the defendant, after spreading on the record a republication of the libel, and reading it to the jury, is, in most courts, not allowed to withdraw it.(4) According to the New York practice, he is not allowed to withdraw it, without filing an affidavit of its falsity, or at least, a statement of record, to that effect.(5) [The Indiana Courts in their exceptional view, go upon strict principles of evidence. " The filing of a plea of justification," says Perkins J., " should not aggravate the damages. If it be said that the plea is a repetition of the slanders, the argument in reply is short, and to us seems conclusive. If the plea be an actionable repetition of the slander, as it is subsequent to the commencement of the suit in which it is filed, it constitutes an independent cause of action, for which (1) Maybee «. Avery, 18 Johnson, 352 ; see Symons v. Blake, 2 Crompton, Meeson & Ros- ooe, 416. (2) Shoulty V. Miller, 1 Carter, 545 ; Swails v. Butcher, 2d Id. 84; Sloan v. Petrie, 15 Illinois, 425; ["Our «m Robinson, 470. (10) Blackburn i\ Blackburn, 4 Bingham, 395. (11) Hopwood V. Thorn, 8 Man. 6r. & Scott (65 B. C. L.) 315. 172 DEFENCES TO SLANDER AND LIBEL. Petitions, letters or addresses of any kind, sent to superior ofBoers or bodies, civil or ecclesiastical, having the power of appointment or removal, in respect to some inferior office or to membership, where the parties, either as citizens or as members of the Society, have an interest in the matter, and containing charges of unfitness or unworthy conduct, in regard to the officer, member, or applicant, though they are in themselves the subjects of an action for libel, are privileged communications ; that is, the occasion justifies them, unless the plain- tiff prove bad motives and want of probable cause ; but, if the charges are known to be false, they are malicious, and the question of malice is for the jury.(l) But publications, by the editors of newspapers, with however good motives, in regard to public officers, or candidates for office, are not privileged ; and the publishers can protect themselves only by proving the truth of what they have published ; (2) and a publication of a libel, as the act of a public meeting against a candidate for a public office, is not privileged ;(3) nor is a libel on a Roman Catholic priest, published in the course of a hona fide discussion, at a public meeting respecting the propriety of supporting the Roman Catholic reli- gion. (4) For other similar cases of publications not privileged, see cases cited below. (5) But besides the pursuit of one's interest, the defence of one's character or conduct furnishes occasion of privilege; if a man bona fide write a letter in his own defence or for the defence and protection of his interests and rights, and is not actuated by any malice, the letter is privileged, although it may impute dis- honesty to another ;(6) and when the plaintifl' had charged the defendant, before the church, with having expressed a false or slanderous opinion of him, and the defendant to vindicate himself and show that he had not invented the slander, produced certificates of persons who stated that they had told him the facts which he repeated, it was held that such defence, hona fide made, was a pri- vileged occasion. (7) If the communication complained of, is, in itself, the institution of a judi- cial proceeding, for some alleged offence, before a tribunal having jurisdiction, it is not the ground of an action of slander or libel at all, but only of an action of malicious prosecution or maliciously suing out a warrant, in which bad mo- tives and want of probable cause must be shown ;(S) and the same rule has been thought applicable to regular proceedings, or a hona fide charge, by one member of a church against another member, before an ecclesiastical tribunal (1) Thorn v. Blanchard, 5 Johnson 508 j Vanderzee v. McGregor, 12 Wendell, 545 ; Howard, o. Thompson, 21 Id., 320; O'Donaghue v. M'Govern, 23 Id., 26; Eeid v. Delorne, 2 Brevard, 76 ; Gray v. Pentland, 2 Sergeant &, Eawle, 23 ; S. C. 4 Id., 420 ; Chapman v. Calder, 2 Harris, 365, 369 ; Bodwell v. Osgood, 3 Pickering, 379 ; Cook v. Hill, 3 Sandford, 348. (2) Root V. King, 1 Cowen, 613; S. C. on error, 4 Wendell, 114; Usher v. Severance, 20 Maine, 9 ; see Harwood v. Astley, 1 New Reports, 47. (3) Lewis V. Few, 5 Johnson, 1, 36. (4) Hearne v. Stowell, 12 Adolphus & Ellis, 719, 726. (5) Getting v. Foss, 3 Carrington A Payne, 160 ; Martin «. Strong, 5 Adolphus &, Ellis, 635. (6) Coward v. Wellington, 7 Carrington & Payne, 531, 536. (7) Dunn v. Winters, 2 Humphreys, 512. (8) Howard v. Thompson, 21 Wendell, 320, 325; O'Donaghue v. M'GoTern, 23 Id. 26, 29; Hartsook ti. Reddiok, 6 Blackford, 255. HOWARD V, THOMPSON. 173 competent to try the offence ;(1) but charges made before such a tribunal against one not a member, but a stranger, not amenable to the jurisdiction, are not privileged; (2) and charges made before a tribunal having no legal compe- tency to investigate the matter, and with intent to defame, would be actionable as slanders or libels ;(3) [it being declared in Hosmer v. Loveland, 19 Bar- bour, 111, that in all cases where the object or occasion of the words or writing is redress for an alleged wrong, or a proceeding in a tribunal, or before some individual or associated body of men, such tribunal, individual or body, must be vested with authority to render judgment or to entertain the proceeding in order to give them the protection of privileged communications.] The distinction between these two kinds of action seems to be that an action for slander or libel will not lie wherever the other can be applied ; accordingly, if a charge of felony has been made before a magistrate, and a warrant has not there- upon been issued by him, slander is the only appropriate remedy, and if the charge was not made in good faith, but merely as a pretence to promulgate slander, an action of slander may be maintained for imposing the crime of felony, that is for maliciously and without probable cause charging the plaintiff with felony before a magistrate ;(4) but if the charge was made in good faith, upon rea- sonable grounds, and with sincere intention to prosecute the suit, it would no doubt be privileged j(5) but wherever a warrant has been issued, slander is no longer appropriate, but the action must be for malicious prosecution, or mali- cious arrest, or maliciously suing out a search warrant. (6) But, though, where the institution of a suit is the matter complained of, the action must be for malicious prosecution, under some of its forms, yet for mat- ters written or spoken in the course of a cause, an action for slander or libel is the appropriate remedy. But such matters, if pertinent or material, are privi- leged. The distinction upon the subject is this. Whatever is said or written in the course of a judicial proceeding, civil, military, or ecclesiastical, by a party or by his counsel, (for their privileges are the same,) pertinent and material to the subject in controversy, is privileged, and excludes the legal notion of malice ; within that limit, the protection is complete, and the speaker or writer is not liable to an action, however much he may have Keen animated by ill-will; but if the matter is not pertinent, and is not uttered bona fide, but for the purpose of defaming, the person is without protection, and may be made answerable for slander or libel. (7) And this privilege extends not only to parties, counsel, (1) Remington v. Congdon, et al., 2 Pickering, 310, 314 ; Wliitalser v. Carter, 4 Iredell, 461 468 J and see Chapman v. Calder, 2 Harris, 365, 369. (2) Coombs V. Kose, 8 Blackford, 156. (3) Milam v. Burnsides, 1 Brevard, 295. (4) Blizard v. Kelly, 2 Barnewall & Cresswell, 283; Hill v. Miles, 9 New Hampstire, 12. (6) Bunton v. Worley, 4 Bibb, 38. (6) Vausse v. Lee, 1 Hill's So. Car. 197; Heyward v. Cuthbert, 4 M'Cord, 354; Sanders v. RoUinson, 2 Strobhart, 447, 351 ; Shock v. M'Cbesney, 4 Yeates, 507 (overruling S. C. 2 Id. 473) ; see Glass and another v. Stewart, 10 Sergeant & Rawle, 223, 225. (7) Hodgson v. Scarlett, 1 Barnewall & Alderson, 232; Flint i: Pike, 4 Barnewall & Cress- well, 473 ; Astley V. Younge, 2 Burrow, 807; Trotman v. Dunn, 4 Campbell, 211; Ring ». Wheeler, 7 Cowen, 725: Burlingame v. Burlingame, 8 Id. 141 ; Hastings v. Lusk, 22 Wendell, 410 ; Lathrop v. Hyde, 25 Id. 448 ; Gilbert v. The People, 1 Derio, 42 ; Hoar v. Wood, 3 Met- calf, 193; Warner v. Paine, 2 Sandford's S. Ct., 195 ; Eccles v. Shannon, 4 Harrington, 193 194; DaTis v. McNees, 8 Humphreys, 40 ; Mower v. Watson, 11 Vermont, 636, 542; M'Millan 174 DEFENCES TO SLANDER AND LIBEL. witnesses, jurors and judges, in a judicial proceeding, but also to proceedings in legislative bodies, and to all who, in the discharge of public duty, or the honest pursuit of private right, are compelled to take part in the administration of justice, or in legislation. (1) In Johnson v. Evans, 2 Espinasse, 32, Lord Eldon held, that words of accusation of a crime, spoken when the person was about to give the defendant in custody to a constable, were privileged ; but in Bancasfer v. Hewson, 2 Manning & Eyland, 176, it was decided, that where one who has obtained a search warrant for goods supposed to be stolen, tells the officer that such an one has robbed him, the remark is not privileged. But there does not seem to be any such distinction in principle between these cases and those of private and confidential communication, as the chancellor in Has- tings V. Lusls supposed. In all cases of privilege, the protection is complete within the range of the privilege, whatever may be the person's motives. In private communications, the privilege is for speaking on a justifiable occasion, that which is really believed to be true ; with whatever malignity and ill-will that be done, within the limit of the privilege, the protection is undoubtedly absolute. It seems to be established, that a fair, candid, and accurate report in the newspapers, bona fide, of the proceedings in a public court of justice, is not a libel ;(2) but the soundness of this principle has, in some cases, been doubted; see per Abbott, 0. J., in Duncan v. Thwaites, 3 Barnewall & Cresswell, 656, 583 ; and it is certainly to be applied with caution and strictness; (3) and it is not applicable to a proceeding before a justice, by way of preliminary in- quiry. (4) A report of legal proceedings, to be justifiable, must be fair, candid, and true ; a garbled or discoloured account, or one mixed up with comments or iusiouations, or with a heading, which in effect render the publication a vehicle for slander, is not justifiable; (5) and it must be full and impartial ; for an ex parte account, as of the statement made by counsel of a party's conduct, is not privileged; (6) and a plea of this privilege which alleges that the matter is " in substance" a true account, is bad on demurrer, for the report should be true and accurate in all respects. (7) And, certainly, an editor is not at liberty to publish everything that is said in the course of a trial in a court of justice ; he may publish a history of the trial, but is not at liberty to publish observations V. Bireli, 1 Binney, 178, 186 ; Kean v. M'Laughlin, 2 Sergeant & Rawle, 469 ; Vigours v. Pal- mer, 1 Browne, 40 ; Badgley v. Hedges, Pennington, 233 j Hardin v. Comstock, 2 Marshall's Kentucky, 480 ; Porbes v. Johnson, 11 B. Monroe, 51. (1) Torrey v. Pield, 10 Vermont, 353, 413; Hastings v. Lusk ; Wilson v. Collins, 5 Carring- ton & Payne, 372 ; Jekyll v. Moore, 2 New, 341 ; see also Home v. Behtinek, 4 Moore, 663 ; 2 Broderip & Bingham, 130 ; as to legislative immunity, see Coffin u. Coffin, 4 Massachusetts, 1. (2) Curry V. "Walter, 1 Espinasse, 456; 1 Bosanquet & Puller, 525 ; per Lawrence, J., in The King V. J. Wright, 8 Term, 293, 298 ; Stoekdale ®. Tarte, 4 Adolphus & Ellis, 1016 ; O'Dona- ghue V. M'Govern, 23 Wendell, 26, 29. (3) See M'Sregor v. Thwaites, Id. 24, and The King i. Carlisle, 3 Barnewall & Alderson, 167, and The King v. Creevey, 1 Maule & Selwyn, 273. (4) Duncan v. Thwaites; Stanley v. Webb, 4 Sandford, 24. (5) Stiles V. Nokes, 7 Bast, 493, 606 ; Lewis v. Clement, 3 Barnewall & Alderson, 702 ; Dele- gal V. Highley, 3 Bingham's N. C, 950 ; Thomas v. Crosswell, 7 Johnson, 264, 272 ; Stanley V. Webb, 4 Sandford, 24. (6) Saunders v. Mills, 6 Bingham, 213. (7) Elint V. Pike, 4 Barnewall & Cresswell, 473. HOWAED V. THOMPSOIT, 175 made by counsel injurious to the character of individuals; for though such ob- servations, as made by counsel in court, would be privileged, the publication of them in the papers would not be;(l) much less are remarks of bystanders, or persons whose duty does not call upon them to make them, justifiably pub- lished ;(2) and if blasphemous or indecent matter be brought out on a trial, the publication of it in the newspapers would be indictable. (3) It is well settled, that though a defamatory speech made in parliament may be privileged, the publication of the speech in the newspapers will not be. (4) As to privilege of parliament, see StockduJe v. Mansard, 9 Adolphus & Ellis, 1. Literary criticism is also privileged from the character of libel. Every man who publishes a book commits himself to the judgment of the public, and any one may comment on his performance. Criticisms, however ridiculing, upon books, or upon authors in respect to their books, are not libels : but attacks upon the moral character of the writer, or upon his character unconnected with his authorship, under the pretext of literary criticism, are not protected. (5) And where a book, or other writing, upon a professional subject, is published, though fair, reasonable and temperate criticisms, even expressed through the medium of ridicule, are allowable, remarks intended, unfairly and malignantly, to injure the writer in his profession, by imputing ignorance of its principles, would be actionable. (6) So, a fair and temperate criticism on a picture pub- licly exhibited, which is not intended as a vehicle of personal malignity towards the plaintiff, is not actionable : the question is, whether it is an honest criticism and no more, or whether the limits of fair and honest criticism have been exceeded. (7) As to the right of comment upon sermons preached, see Gather- cole V. liiall, 15 Meeson & Welsby, 319. In Dibdin v. Siuan & Bostoch, 1 Espinasse, 28, Lord Kenyon said, that the editor of a public newspaper may fairly and candidly comment on any place or species of public entertainment; but it must be done fairly, and without malice or view to injure or prejudice the proprietor in the eyes of the public : if so done, however severe the censure, the justice of it screens the editor from legal animadversion ; but if it can be proved, that the comment is unjust, is malevo- lent, or exceeding the bounds of fair opinion, it is a libel. And if it attack the personal character of the exhibitor, it is libellous. (8) [Where the Statute of Limitations is pleaded as a defence, it has been held that the plea is negatived by proof that a single copy had been purchased within six years ; and this though the copy was sold to a person whom the (1) Per Bayley, J., in several cases : Flint v. Pilce, 4 Barnewall & Cresswell, 473, 480, and in Lewis V. Walter, 4 Barnewall & Alderson, 605, 613, and in The King v. Creevey, 1 Maule & Selwyn, 273, 281 ; Roberts v. Brown, 10 Bingham, 619 ; and see M'Gregor v. Thwaites, 3 Barne- wall & Cresswell, 24, 31. (2) Delegal v. Highley, 3 Bingham's N. C, 950, 961. (3) The King v. Carlisle ; The King v. Creevey. (4) Rex V. Lord Abingdon, 1 Bspinasse, 226 ; The King v. Creevey, 1 Maule & Selwyn, 273. (6) Carr v. Hood, 1 Campbell, 355, note; Tabart v. Tipper, Id. 350; Macleod v. "Waliley, 3 Carrington & Payne, 311, 313; Frazer v. Berkeley, 7 Id. 621, 625; Cooper c. Stone, 24 Wen- dell, 434, 441, 442 ; see also Heriot v. Stuart, 1 Espinasse, 437 ; Stuart v. Lovell, 2 StaAie, 93. (6) Soane v. Knight, 7 Carrington & Payne, 74; Dunne v. Anderson, 3 Bingham, 88. (7) Thompson v. Shackell, 1 Moody & Malkin, 187, 188. (8) Green v. Chapman, 4 Bingham, N. C. 92. 176 DEFENCES TO SLANDER AND LIBEL. plaintiff sent to procure it, and who, on receiving it, carried it to the plain- tiff.](l) _ _ In an indictment for a libel, the malice, or malicious intent, required, is legal malice; Gommonioealth -v. Blanding, 3 Pickering, 804, 311 ; Oommon- wealth V. SneUing, 15 Id. 337, 340 ; which does not consist in personal hatred and ill-will, but is the wilful doing of an unlawfid act ; Commonwealth v. Bonner, 9 Metcalf, 410. In an indictment for a libel, the truth, of itself, is not a defence, and cannot be given in evidence ; The State v. Lehre, Constitu- tional Reports, 1st ser. 809. But " although the truth of the words," said Parsons, C. J., in Commonwealth v. Clajy, 4 Massachusetts, 163, 169, '•' is no justification in a criminal prosecution for a libel, yet the defendant may repel the charge, by proving that the publication was for a justifiable purpose, and not malicious, nor with the intent to defame any man. And there may be cases where the defendant, having proved the purpose justifiable, may give in evidence the truth of the words, when such evidence will tend to negative the malice and intent to defame. Upon this principle, a man may apply, by com- plaint, to the legislature to remove an unworthy officer ; and if the complaint be true, and made with the honest intention of giving useful information, and not maliciously, or with intent to defame, the complaint will not be a libel. And when any man shall consent to be a candidate for a public ofiice, conferred by the election of the people, he must be considered as putting his character in issue, so far as it may respect his fitness and qualifications for the ofiSce. And publications of the truth on this subject, with the honest intention of informing the people, are not a libel. For it would be unreasonable to con- clude, that the publication of truths, which it is the interest of the people to know, should be an offence against their laws. And every man holding a pub- lic elective office may be considered as within this principle; for as a re-election is the only way his constituents can manifest their approbation of his conduct, it is to bo presumed that he is consenting to a re-election if he does not dis- claim it." And it was said in Commonioealih v. Blandimj, 3 Pickering, 304, 3 12, that undoubtedly there are other cases besides those thus mentioned by Chief Justice Parsons, as illustrations of the general doctrine, depending on the same principle. In a late case, where this subject was much considered, it is laid down, that if the end of the publication be justifiable, as, if the object is the removal of an incompetent officer, or to prevent the election of an unsuitable person to office, or, generally, to give useful information to the com- munity, or to those who have a right to know, and who ought to know, in order that they may act on the information, the occasion is lawful; and then the party may justify the publication, by showing that it was true, or may excuse it, by showing probable cause and good motives; The State v. Burn- ham, 9 New Hampshire, 35, 43. See, also, Commomvealth v. Sanderson, 3 Pennsylvania Law Journal, 209. In New York, Blassachusetts, and several other states, by statute or consti- tutional provision, the truth may be given in evidence, and is a defence, if published with good motives, and for justifiable, ends; see Commonwealth v. Bonner, 9 Metcalf, 410. In Pennsylvania, by the 7th article of the Declara- tion of Rights, in prosecutions for the publication of papers investigating the (1) Duke of Brunswick v. Harmer, 11 Adolphus & Ellis, N. S. (68 E. C. L.) 188. GIL MAN V. LOWELL. 177 ofiBcial conduct of ofiSoers, or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence, and if published from good motives, and justifiable ends, will be a defence; see Respuhlica v. Dennie, 4 Yeates, 267; GommonweaUh v. JDuane, 1 Binney, 601, and the act of the 16th of March, 1809, there cited. OF EVIDENCE IN MITIGATION AND IN AGGRAVATION OP DAMAGES IN SLANDER AND LIBEL. GILMAN V. LOWELL. In the Supreme Court of the State of New York. ALBANY, JANUARY, 1832. [reported 8 WENDELL, 573-583.] In actions of Slander and Libel, mitigating circumstances which have a tendency/ to prove the truth of the charge, cannot be given in evidence under the general issue, in diminution of damages : but any circum- stances of mitigation which disprove malice, but do not tend to prove the truth of the charge, are admissible. This was an action of slander, tried at the Clinton circuit in January, 1830, before the Hon. Esek Oowbn, one of the circuit judges. A witness for the plaintiiF testified that in December, 1828, the de- fendant accused the plaintiff with having siv or n falsely in regard to some of their business, and said something about complaining to the grand jury or attending to the grand jury. In May, 1829, the plaintiff, attended by a friend, called on the defendant and demanded an explana- tion — the defendant ordered him out of his store; the plaintiff persisted in his demand, when the defendant told him that he had sworn before Lynde that a deed was on record, and that he had searched for it, and the clerk had searched for it, and could not find it, and that he would attend to the grand jury respecting it. The plaintiff rested, and the defendant moved for a nonsuit, insisting that the words spoken were not actionable, without proof of a colloquium in regard to some legal proceeding in which perjury could be committed. The motion for a nonsuit was overruled. The counsel for the defendant, in opening his defence to the jury, stated that it would be proved that Lowell, the defendant, had recovered a judgment against Oilman, the plaintiff, and one Wood, before Justice Lynde, for a sum exceeding twenty-five dol- VOL. I. — 12 178 DAMAGES IN SLANDEE AND LIBEL. lars ; that Lowell asked for an execution to issue forthwith, and made the requisite oath ; that Gilman complained that such application was unnecessary, and to show it to be so, made oath voluntarily before the justice that he was a freeholder and had a deed of land, and that the same was recorded in the clerk's office of the county of Clinton ; that Lowell thereupon withdrew his application for an execution, took a transcript of the judgment, filed it in the clerk's office, and requested the clerk to search for the record of the deed to Gilman, so that he might know the premises upon which his judgment would be a lien. That the clerk searched the records and informed Lowell that no such deed was on record ; that Lowell requested the clerk to search with great care, stating to him the reason of his particularity; that the clerk made a second search, and again told him there was no such deed on record ; that Lowell subsequently caused another search to be made, which was equally unsuccessful. That in fact, however, the deed ivas recorded, but a mistake had occurred in indexing the records, and the error was discovered only by the production of the deed to the clerk, from an endorsement on the back of which the time of its record was learnt. Previous, however, to the discovery of the error, Lowell had taken out execution on his judgment, and supposing he had no security on real estate, pressed the collection of it from other property, of which Gilman complained, and the conversations which had been testified to were the consequence, which took place before Lowell had any know- ledge of the deed being in fact recorded. To the plea of the general issue put in by the defendant, he had subjoined a notice, that on the trial of the cause he would prove, that although the statements made by Gilman in respect to his deed were true, that he held such deed, and that the same was in fact recorded, yet, that after such statements by Gilman, and before the speaking of the words, he, Lowell, caused diligent search to be made at the clerk's office for the deed, and that owing to a mistake in the indexing of the records, the record of the deed in question could not be found, and that he, Lowell, was informed by the clerk that it could not be found, and that at the time of the speaking of the words charged in the declaration, he had reason to believe, and did believe, that no such deed was in fact recorded. The evidence thus oflFered to be given was objected to by the plaintiff, and overruled by the presiding judge. The plaintiff had a verdict for two hundred and fifty dollars, which the defendant now moved to set aside. S. Stephens, for the defendant. The words in themselves arc not OILMAN V. LOWELL. 179 actionable, notwithstanding the addition to the charge that the defendant would complain to the grand jury. Actionable words are those that convey the charge of perjury in a clear unequivocal manner, and which admit of no uncertainty. Hopkins v. Beedle, 1 Caines, 349.(1) Although the party intended to impute a crime, if the words in legal acceptation do not import the charge of a crime, the speaker is not liable. (2) This principle is fully illustrated in Dexter v. Taber, 12 Johns. R. 239, where the defendant manifestly intended to charge the plaintiff" with felony, yet because he stated the crime to consist in stealing hoop-poles and saw-logs from off" the land of third persons, and the terms being held to be applicable equally to standing as to felled timber, the jury were instructed that they might consider the words as applicable to the former, and if they should so find, that the defendant was not liable ; and the instruction thus given to the jury was sanctioned by the court in term. See also Cro. Jac. 446. The law presumes that the bystanders understand the words spoken as the law regards them. The words being spoken in reference to a particular transaction, and so stated at the time, it was incumbent on the plaintiff to have shown that in the transaction alluded to, the crime of perjury might have been committed, that is, that the swearing was of that kind, that if a party swore false, he might by law be punished for perjury. (3) At all events, the evidence offered by the defendant should have been received in mitigation of damages. B. F. Butler, for the plaintiff. The rule laid down in Hopkins v. Beedle, 1 Caines, 349, prevails no more, either here or in England. Slanderous words, it is now conceded, are to be understood according to their natural import, and as ordinary hearers would understand them. (4) By adding to the charge of false swearing, that he would complain to the grand jury, the bystanders were given to understand that the defendant imputed to the plaintiff" an indictable offence. Such was the construction given by the court in Fox v. Vanderbeck, 5 Cowen, 613, to the words there spoken ; the defendant interrupted the plaintiff" while testifying, and told him it was not so, and requested the justice to keep the minutes of his testimony, as he wanted them to prosecute for perjury. If the words were actionable, it was not necessary to prove (1) See also 3 Wils., 186; 6 Term. Rep., 194; 1 Rolle'a Abr., 70 ; Cro. Jac, 190 ; 1 Johns., 605 ; 2 Id., 10. (2) Cro. Eliz., 416. (3) 13 Johns. R., SI ; 20 Id., 338 ; 9 Cowen, 30 ; 1 Wendell, 475 ; 4 Id., 531. (4; 6 Cowen, 87; See also 5 Id., 503; 2 Wendell, 536; 4 Id., 325 ; 3 Cowen, 331. 180 DAMAGES IN SLANDER AND LIBEL. that they were spoken in reference to a transaction in which the crime imputed might be committed ; the cases cited in support of the defendant's position were cases of words not actionable. Was the evidence offered in mitigation admissible ? The injury to the plaintiff is as great where the defendant believes the charge to be true which he makes, as where he knows it to be false. See the cases stated by Chancellor Walworth, in King v. Root, 4 Wendell, 137, and his comments upon them. The belief of the defendant in the truth of the charge is no bar, nor can it be given in evidence in mitigation, unless where the plaintiff has given evidence in aggravation. For privileged communications, as in giving the character of a servant, no action lies, unles express malice is shown ; and where evidence in such cases is given to show malice, the defendant may rebut it by proof, to show that he had reason to believe what he asserted. In ordinary cases of slander, the false speaking of the words shows malice ; the law implies malice, and the defendant cannot rebut the conclusion. If the evidence of the belief of the defendant is at all admissible, it can be received only under a special plea admitting the falsehood of the charge. (1) By the Court, Savage, Ch. J. There are two questions presented in this case : 1. Whether the words proved are actionable in themselves ; 2. Whether the evidence offered in mitigation should Lave been received. Whether the words are actionable or not, depends on the question whether they convey to the hearer the charge of perjury. " Action- able words are those that convey the charge of perjury in a clear unequivocal manner, and which admit of no uncertainty." To say, " You have sworn to a lie," is not actionable, for it may mean extra- judicial swearing. Hopkins v. Beedle, 1 Caines, 347, 9. To say of another that " he has sworn falsely ; he has taken a false oath against me in Squire Jamison's court," is not actionable, there being no collo- quium about that court, or any cause pending there, and no averment that Jamison had authority to hold a court in which an oath might be judicially administered. But where it appears that a lawful oath was administered in a court of law, and the witness is contradicted when testifying to a material point, and it is so averred in the declaration, an action lies. (2) Where the charge is perjury, it will be intended that it was in some court of justice, or before some ofiBcer where perjury might be committed ; " but for a charge of false swearing, no action lies, unless (1) 1 Pickering, 19. (2) 6 Johns. K., 82. OILMAN V. LOWELL. 181 the declaration shows that the speaking of the words had a reference to a judicial court or proceeding. "(1) It is well settled that words are to be understood according to their natural import, and as ordinary hearers would understand them. (2) And in Fox v. Vanderbeck, 5 Cowen, 513, words like those charged in this declaration and proved, were held to convey the charge of perjury. In that case, while the plaintiiF was tes- tifying before a justice, the defendant interrupted him, and told him it was not so. The defendant also requested the justice to keep minutes, saying he wanted them to prosecute for perjury ; or he wanted them to go to some lawyer, to prosecute the plaintiff. Sutherland, justice, in giving the opinion of the court, says, " The words are actionable, they are calculated to convey to the mind of an ordinary hearer the imputation of the crime of perjury." In this case there was a distinct charge of false swearing, followed by a threat that the defendant would complain to the grand jury, or attend to the grand jury respecting it. Why complain to the grand jury, but to procure an indictment ? And why indict for false swearing, unless perjury has been committed ? A person is not punishable for false swearing, unless he has committed perjury. An intimation, therefore, that the plaintiff was indictable for swearing false, necessarily contains an assertion that he has committed the crime of perjury. On the first point, therefore, I think the circuit judge was correct in deciding that the words taken all together con- tained a charge of perjury, and are actionable. (3) The next inquiry is, whether the judge was right in rejecting the evidence offered in mitigation. What facts and circumstances shall be given ill evidence under the general issue in mitigation of damages, is a question not free from difficulty. The subject was considered by this court in the case of Root v. King, 7 Cowen, 613. The action is founded in supposed damage to the plaintiff, arising from the malice of the de- fendant. Where words are actionable in themselves, neither the damage nor the malice are required to be proved ; the speaking of the slanderous words is all the proof necessary ; the damage on the one hand, and the malice on the other, are both necessary consequences, and the action is therefore sustained ; but in estimating the damages which the one has received, and the other should pay, various circumstances are legitimate (1) 2 Johns. R., 10, 12; 1 Id., 505 ; 1 Bin., &7S; 2 Id., 60. (2) 6 Cowen, 87. (3) Where the words were, "Thou art a foresworn man; I will teach thee the price of an oath, and will set thee on the pillory," they were held actionable, because the defendant showed that he meant to impute a perjury, for which the plaintiif ought to stand in the pillory. 1 Viner's Abr., 407, pi. 71. So, to say of another, "You swore to a lie, for which you now stand indicted," was held to be actionable. Pelton v. Ward, 3 Caines, 73. 182 DAMAGES IN" SLANDER AND LIBEL. subjects of consideration. If the plaintiff is a person of tarnished repu- tation, he cannot have received much damage ; and the defendant should be punished according to the degree of malice by which he was actuated; the general character of the plaintiff is therefore a proper subject of investigation, in ascertaining the amount which the plaintiff is entitled to recover ; and generally speaking, the defendant should pay in proportion to the quantum of malice by which he has been actuated. These remarks are not applicable to a plea of justification, because, if the defendant can prove the truth of the words spoken, no action lies, however malicious his motives may have been. Before the case of Underwood v. Parks, Strange, 1200, under the plea of the general issue, the defendant might avail himself of any defence. It was then decided that if the defendant intended to justify, he must plead his justification, that the plaintiff might know what defence he was to meet. According to some recent Nisi Prius cases in England, it seems that the defendant, under the general issue, may prove anything short of a justification — suspicious circumstances and slanderous reports of the same character with the words spoken, though the judges who admit this testimony concede that they cannot reconcile it With correct principles; nor is it thought to be consistent with the rule established in Underwood v. Parks. Those late decisions are not authority in this country, and courts in different states have established rules for them- selves, where the legislatures have not done it. From the current of decisions in this state it is settled that the defendant may justify, if he chooses, but if he does so, he admits the malice on his part, and of course can resort to no defence which is based upon the absence of malice. It results from this principle, I think, that where a defendant is prosecuted for words, he has two courses before him in shaping his defence: the one to justify; if he succeeds in his justification, he is of course exonerated from all liability ; if he fails, the attempt to justify enhances damages. The other course is to show his innocence, either by a total denial, or by showing circumstances which prove his motives to have been innocent. If he takes the latter course, and undertakes to show his innocence, he ought not to inculpate the plaintiff; by de- clining to justify, he virtually admits that he cannot do so, and of course the truth of the charges is abandoned ; he ought not then to be permit- ted to do indirectly what he dare not do directly. Under the influence of these considerations, we intimated in Root v. King, 7 Cowen, 633, that the true rule was that the defendant may, under the general issue alone, show anything which repels the presumption of malice, and does not imply the truth of the charge, or tend to prove it true. That GIL MAN V. LOWELL. 183 reports of a similar character were prevalent in the neighbourhood, might show a less degree of malice in the defendant, but they have a tendency to prove the truth, and are, therefore, inadmissible ; not that reports are testimony to convict of a crime, but they destroy reputation, and have in part, the same effect as proof. It often happens that reports, prejudicial to the plaintiff', have prevailed extensively, before he commences a suit ; and the fact that his character is suff"ering from those reports unmerited opprobrium, drives him to a prosecution. If, then, he is to be met by those reports, and only allowed a nominal verdict, which is about equal to a verdict against him, "he had better," in the language of Chief Justice Parsons, 6 Mass. R. 518, which I have before quoted in Matson v. Bush, 5 Cowen, 500, "sink privately under the weight of unmerited calumny, lest by attempting his justification, he should give notoriety to slanders which had before been circulated in whispers." Whether the plaintiff's rank and condition in life may be shown either to enhance or diminish the damages, it is unnecessary now to decide; but I maybe permitted to say that it is so held in Massachusetts, Larnod v. BufBnton, 3 Mass. R. 652; and it is not per- ceived that this principle has any necessary connexion with the ques- tion of malice; it is proper, under the head of inquiry into general character. Persons in different stations would be differently damnified by the same slanders. In Larned v. Buffinton, the case last cited. Chief Justice Parsons says, " Where, through the f lult of the plaintiff, the defendant, as well at the time of speaking tiie words, as when he pleaded his justification, had good cause to believe they were true, it appears reasonable that the jury should take into consideration this misconduct of the plaintiff", to mitigate the damages." In Alderman v. French, 1 Pick. 19, this dictum is denied, unless the defendant admits he was mistaken, and thus afford all the relief he can against the calumny which he has published. In Bodwell V. Levan, 3 Pick. 377, evidence was rejected which had a ten- dency to prove the truth of the words ; and in Warmouth v. Cramer, 3 Wendell, 396, it was held, that particular facts which might form links in the chain of circumstantial evidence against the plaintiff, cannot be received under the general issue, in mitigation of damages. In that case there was a charge of theft, and the defendant offered to prove, that after a prosecution against another person, the plaintiff sent home the stolen property; the possession of the property would be a link in the chain of circumstances to convict the plaintiff, and therefore it was rejected. In South Carolina, it seems, that facts and circumstances showing a ground of suspicion may be shown in mitigation, though not 184 DAMAGES IN SLANDER AND LIBEL. amounting to actual proof.(l) In Virginia such circumstances are not permitted in mitigation. In Cheatwood v. Mayo, (2) the defendant had called the plaintiff a " hog-thief." The defendant offered to prove by a witness, that he, the witness, had lost a hog, and charged plaintiff's slave, and applied to the plaintiff on the subject; when plaintiff ac- knowledged that such a hog had been killed at his house, and agreed it was W.'s hog; but it was rejected in the supreme court of Amherst, and aifirraed in the supreme court of appeals. The same principle is found in McAlexander v. L'arris, 6 Mun. 465. In Connecticut, Chief Justice Hosmer, in Hyde v. Bailey, 3 Conn. R. 466, says, that " the defendant on the general issue, may prove, in mitigation of damages, such facts and circumstances as show a ground of suspicion not amount- ing to actual proof of the guilt of the plaintiff," and relies on Knobell V. Fuller, and v. Moor, 1 Maule & Sel. 285. In Treat v. Brown- ing, 4 Conn. R. 414, the same learned judge enters more at large into the subject, and considers several cases; on the question of admitting reports, he limits their admission only as proof of character-, and says, " if the evidence went beyond the proof of reputation, it should have been rejected, as there had been no notice of an intended justification." He adds, that they are hearsay only, and evincive of character: and that " on a critical examination it is apparent that the cases which have sanctioned the admission of general reports have not gone beyond these bounds," and cites 2 Campb. 251, and v. Moor, 1 Maule & Sel. 285. If those cases go no further, they are not objectionable ; but they have been considered here as sanctioning the giving in evidence of the specific reports, without answering to the question of the plaintiff's general character. Chief Justice Hosmer cites with approbation the language of Smith, justice, in Kennedy v. Gregory, 1 Bin. 85, where he says, " I challenge ingenuity to point out one evil which would result from such evidence being given, as matter of justification without notice, which would not follow to almost the same degree were it allowed in mitigation of damages ;" and adds, " and I am incapable of resisting the same conclusion ; when I consider the case on principle, I am strongly impelled to the opinion that the offered testimony was rightly rejected. The argument for its admission proceeds on the ground that the evidence would diminish the presumption of malice, and of conse- quence, lessen the damages. It is an indisputable truth that evidence which falls short of a justification may be competent to mitigate dam- ages ; and that to this end such facts and circumstances as show a (1) Buford I). M'Liiny, 1 Nott &, M'Cord, 268. (2) 5 Munford, 16. GILMAN V. LOWELL. 185 ground of suspicion, not amounting to actual proof of guilt, are ad- missible in evidence ;" citing Knobell v. Fuller, Peake's Evidence. It will be found that in all the American Courts, where facts and cir- cumstances of suspicion are permitted in mitigation, they are admitted on the strength of the English nisi prius cases above referred to, in one of which Chief Justice Mansfield frankly admits that he could not answer the arguments against it. Chief Justice Hosmer virtually says it is inadmissible upon principle, but upon authority it is. Mr. Starkie, in his Treatise on Slander, 408, 9, 10, in commenting on these cases, thinks the rule that any matters short of actual proof are admissible in mitigation, is inconsistent with the rule in Underwood v. Parks, that the truth should not be given in evidence without a special plea. Gene- ral evidence as to the plaintiflF's suspicious character, he thinks proper ; but not facts tending to show actual guilt. These cases show that learned jurists in this country and in England, who have admitted evi- dence of reports and of suspicious circumstances, have done so upon what they considered authority, and not because they are admissible upon principle. The more I have considered this subject, the more I am convinced that the supreme court of Massachusetts and this court have proceeded upon the only correct rule, in excluding, under the general issue, all mitigating circumstances which have a tendency to prove, what cannot be proved under such a plea, the truth of the words ; but that any circumstances of mitigation which disprove malice, but do not tend to prove the truth of the charge, are admissible. This was the point in Mapes v. Weeks, 4 Wendell, 662. These remarks are rather a discussion of the general question of mitigation (into which I have been led by the ingenious arguments of counsel) than of the precise question in this case ; that question, in my apprehension is, whether the facts oiFered to be shown would disprove malice, and would not tend to prove the truth of the charge of false swearing. The words were that the plaintiff had sworn falsely, that he had sworn before Lynde to that which defendant could not find on re- cord, and that he would attend to the grand jury respecting it. The defendant in his notice disclaims all intention to prove the truth, and admits that what the plaintiff swore was true, but to show that what he said was not spoken through wantonness and malice, he offers to prove that he made search in the clerk's office, and no such deed could be found, owing to a mistake of the clerk in indexing the records; what was offered to be shown certainly could not tend to prove the truth, when the defendant admits in his notice, that the words were untrue; and it seems to me they go far to diminish the quantum of malice ; per- 186 DAMAGES IN SLANDER AND LIBEL. haps they show as far as can be done, the absence of malice. The plaintiff, however, must recover, for the speaking actionable words is suiScient evidence of malice to sustain the action ; but the facts offered to be proved show that the defendant really believed that he had been deceived by the plaintiff, and was in danger of losing his debt, and that he did pot make the charge until more than one search had been made at the clerk's office ; and when this is taken in connexion with the proof iQ the cause, that on one occasion the language was drawn from the de- fendant by the provocation of the plaintiff, who went to defendant's store with a witness with intent to draw from him words upon which he might prosecute, I think the evidence peculiarly proper. I am of opinion that a new trial be granted, costs to abide the event. When the cause of action in slander or libel has been established, the parties may proceed to give evidence in aggravation or mitigation of damages. Such evidence generally has relation either to the character and condition of the par- ties, or the degree of malice which entered into the slander; for though action- able words, of themselves imply, in law, malice, sufficient to maiotain the suit and entitle the plaintiff to a verdict, yet there are degrees of malice, and upon them .the amount of damages depends. (1) As the injury done to the plaintiff's character is the legal measure of dama- ges, the defendant, in dimiuution of damages, may always give evidence under the general issue, of the general bad character of the plaintiff, before and at the time of the publication of the slander or libel, but not afterwards; and the jury will estimate the damages in relation to the actual value of the plaintiff's character ;('2) and there seems to be no doubt that this may be done wliere a justification has been pleaded with the general issue. (.3) But evidence of par- ticular facts in discredit of character, whether of the same nature with the (1) See Rigden t.. Wolcott, 6 Gill A Johnson, 413, 417. (2) Paddock v. Salisbury, 2 Cowen, 811 ; Douglass v. Tousey, 2 Wendell, 352 ; per the Chancellor, in King «. Boot, 4 Id. 114, 139; Gilman ■«. Lowell, 8 Id. 573, 678; Hamer ,... McFarlin, 4 Denio, 50i), 510; Lamos ii. Snell, 6 New Hampshire, 414; Severance v. Hilton, 4 Foster, 148; Flint ». Clark, 13 Connecticut, 362, 368; lYoIcott <.-. Hall, 6 Massachusetts. 514, 518 ; Bodwell v. Swan et ux., 3 Pickering, 37li, 378 ; Bowen v. Hull, 20 Vermont, 232 ; Lincoln 1. Chrisman, 10 Leigh, 338; Waters v. Jones, 3 Porter, 442, 450; Bradley v. Gibson, 9 Ala- bama, 406, 403 : Eastman i>. Caldwell, 2 Bibb, 21, 24; McGee .-. Sodusky, 5 J.J.Marshall, 185, 186: Goodbread n. Ledbetler, 1 Devereux k Battle, 12; AVoods v. Anderson, 5 Blackford, 598; Burke <: Miller, 6 Id. 155, 157; Buford r. McLuny, 1 Nott k McCord, 268; (and see Freeman v. Price, 2 Bailey, 115 ; Williams v. H,aig, 3 Richardson, 362 ;) Henry u. Norwood, 4 Watts, 347, 350 ; (but see, per Kennedy, in Smith v. Buckecker and wife, 4 Rawle, 295, 296.) (3) Stone v. Varney, 7 Metcalf, 86; Steinman ,.. McWilliams, 6 Barr, 170, 174; Dewit .•. Greenfield, 5 Ohio, 226; Young v. Bennett, 4 Scammon, 43, 47, 48; Hamer u. McFarlin, 4 Denio, 509 ; per the Chancellor in King v. Root, 4 Wendell, 114, 140 ; Vick v. Whitfield, 2 Haywood, 222; Bowen v. Hall, 20 Vermont, 232. OILMAN V. LOWELL. 187 matter charged, or of a distinct kind, or of bad character in other respects than in the matter charged, cannot be given. (1) In some of the states, evi- dence of the plaintiff's bad character in relation to the particular fault charged, is held admissible ;(2) but in Jones Stevens, 11 Price, 235, an action by an attorney for slander of his professional character, the court decided that evi- dence of the plaintiffs bad character in his profession was inadmissible ; and this case was approved of in Delaware,(3) and in Pennsylvania it is decided that it is only character in its most general sense, that can be given in evidence. (4) In regard to the admissibility of evidence to diminish damages by showing the absence of malice, it has been made a consequence of the rule requiring the truth to be specially pleaded, that the truth cannot be given in evidence under the general issue in mitigation of damages ;(5) nor any facts which tend to prove the truth and to criminate the plaintiff, or which form a link in a chain of evidence to prove a justification; the rule excluding everything that would be competent evidence under a plea of justification :(6) nor of any fact which would be evidence to prove a justification of any part of the libel, because the defendant ought to justify as to that part. (7) And the New York cases lay down as a principle of common law, that evidence going only to the damages, must be such as fully admits the charge to be false. (8) There are dicta how- ever, laying down the general rule, that circumstances which disprove malice, and do not tend to prove the truth, are admissible in mitigation of damages; (9) and in certain cases, the rule has been expressed to be that the defendant " may prove under the general issue, by way of excuse, anything short of a justification, which does not necessarily imply the truth of the charge or tend (1) Lamos j>. Snell; Sawyer i>. Eifert, 2 Nott & M'Cord, 511 ; Randall ii. Holsenbake, 3 Hill's So. Car. 175, 177; (and see Freeman v. Price;) Fisher v. Patterson, 14 Oiiio, 418, 425; Ridley V. Perry, 16 Maine, 21; Smith v. Buckecker and wife, 4 Rawle, 295; Long u. Brougher, 5 Watts, 439; Bowen v. Hall, 20 Vermont, 232 ; and see note to Thompson v. Nye, 71 B. C. L., 181. (2) M'Nutt V. Young, 8 Leigh, 542; Anthony v. Stephens, 1 Missouri, 253; M'Cabe i. Platter, 6 Blackford, 405 : Buford v. M'Luny, 1 Nott & M'Cord, 268, 271 ; and see Reguier r. Cabot, 2 Gilman, 34, 40. (3) Parke i.. Blackiston, 3 Harrington, 373, 375. (4) Stcinman v. M'Williams, 6 Barr, 170; see Saunders v. Mills, 7 Bingham, 213, 223. (5) Van Ankin v. "VVestfall, 14 Johnson, 233, 234; Shepard v. Miller, 13 Id. 475, 477 ; Hyde .;. Bailey, 3 Connecticut, 463, 466; Taylor v. Robinson, 29 MLiine, 323, 327; Smith ti. Smith, 8 Iredell, 29, 34; Kay v. Fredigal, 5 Barr, 221, 223; Arrington v. Jones, 9 Porter, 139; Henson t>. Veatcb, 1 Blackford, 369, 371; Absherot!. Cline, 3 Indiana, 118; but see Moscly j). Moss, 6 Grattan, 534. (6) Dennis v. Pawling, 12 Viner's Abr., 159, pi. 16; Root t-. King, 7 Cowen, 613, 534; IVormouth v. Cramer, 3 Wendell, 395; Henry v. Norwood, 4 Watts, 347, 349; Petrie v. Rose, 5 Watts & Sergeant, 364, 366; Waggstaff v. Ashton, 1 Harrington, 503, 606; Parke v. Black- iston, 3 Id., 373, 379; Eagan .;. Gantt, 1 MoMuUan, 468; Burke v. Miller, 6 Blackford, 155 ; Hart I.. Reed, 1 B. Monroe, 166, 171; Thompson v. Bowers, 1 Douglass, 322, 325; Scott v. McKinnish and wife, 15 Alabama, 662, 666. (7) Vesey v. Pike, 3 Carrington & Payne. (8) Cooper v. Barber, 24 Wendell, 105, 103; See Bush v. Prosser, 1 Keman, 348. (9) Dicta in Gilman v. Lowell, 8 Wendell, 573; Regnier v. Cabot, 2 Gilman, 34. 39 ; Bailey V. Hyde, 3 Connecticut, 463, 466; Calloway «. Meddleton, 2 Marshall, 372; (see, howeeer, M'Gee v. Sodusky, 5 J. J. Marshall, 185, 1S6; and Hart v. Reed, 1 B. Monroe, 166, 172;) Sims V. Kinder, 1 Carrington A Payse, 279. 188 DAMAGES IS SLANDER AND LIBEL. to provG it true, but which rebuts the presumption of malioe.(l) But it would be very unsafe to rely upon this as a general rule : it has, indeed, only a very limited and special application; " facts which tend to diminish the presumptipn of malice, are sometimes competent proof;" says Hosmer, C. J-,('2) " but it can- not be a correct principle, that evidence which diminishes the presumption of malice, is always admissible." The case in which, chiefly the principle has been supposed applicable, relates to the admission of circumstances showing a reasonable ground of belief or suspicion. Circumstances disclosing a ground of suspicion, were admitted in mitigation of damages, by Eyre, G. J-,(3) under the principle that " the defendant might, in mitigation of damages, give any evidence short of such as would be a competent defence to the action, had a justification been pleaded." And the practice in some of the states, at least in Connecticut, Maryland and Ohio, has gone to the same extent; that is to say, if the defendant at the trial admits that he was mistaken, and disclaims all intention to rely on the truth, facts and circumstances showing a reasonable ground of belief at the time of the speaking, but not amounting to proof of the truth, may be given in evidence to repel the presumption of malice, and mitigate damages : the circumstances of their tending to prove the truth, not being suf- ficient to exclude them, if they fall short of proving it ;(4) [and in Indiana the courts seem to go further and decide generally that "if the jury think the evi- dence adduced by the defendant is not entirely sufficient to establish the plea of justification, yet, if the evidence given under them shows that the defend- ant had reason to believe, from the plaintiff's conduct, that the charge was true, such evidence may be considered in mitigation of damages," {b) And this would seem to be the law in Tennessee ;](6) but in some other states, for example, New York, (prior to the enactment of the code,) Delaware, Pennsylvania, and Virginia, the principle is strictly qualified by the limitation, that the evidence must be such as does not tend to prove the truth of the charge : and it is held, that facts and circumstances which induced the defendant to suppose the charge true at the time it was made, cannot be given in evidence in mitigation of damages, when not accompanied with the disclosure of new circumstances, ex- plaining the others, and removing the presumption which they had created; because facts which were sufficient to induce the defendant to suppose the charges true, would be circumstantial evidence of their truth to the jury, and would tend to a justification ; and this is enforced where the defendant expressly admits, even by a disclaimer filed of record, and the charge was wholly false and groundless. (7) In New York, however, this common law rule is changed (1) Root 1-. King, 7 Cowen, 613, 633 ; Wormoutb v. Cramer, 3 Wendell, 395, 397 ; Arrington V. Jones, 9 Porter, 139, 142; Beehler t>. Stoever, 2 Wharton, 314, 326. (2) Treat v. Browning, 4 Conneeticul, 409, 416, 417. (3) Knobell v. Fuller, Peake's Additional Cases, 1-0. (4) ■VVilliiiins t;. Miner, 18 Conneeticut, 464; Rigden i/. Wolcott, 6 Gill &, Johnson, 413; Wagner v. Holbrunner, 7 Gill, 300 ; Wilson v. Apple, 3 Ohio, 270; Wilson v. Runyon, Wright, 651, 663. (5) Shoulty V. Miller, 1 Carter's Indiana, 546 ; and see Byrket u. Monahon, 7 Blackford, 83. (6) West V. Walker, 2 Swan, 34. (7) Purple V. Horton, 13 Wendell, 10, 25; Cooper v. Barber, 24 Id., 105, 108; Waggstafft). Ashton, 1 Harrington, 603; Petrie v. Rose, 6 Walts & Sergeant, 364, 366 ; (which of course controls Williams v. Mayer, 1 Binney, 92, note, and Beehler v. Stoever, 2 Wharton, 314, 326;) OILMAN V. LOWELL, 189 by their code,(l) but, if the evidence itself shows that the charge was a mistake, circumstances establishing the integrity of this mistaken belief^ are held ad- missible ;(2) thus, on a charge of perjury, for swearing that a deed was on record, evidence that though the deed was in fact on record, the defendant after the plaintiff's oath, and before his own words were uttered, had caused diligent search to be made for the deed at the clerk's office, and that owing to a mistake in the indexing of the records, it could not be found, and the defendant was informed by the clerk that it could not be found, was decided to be proper in Kay w. Fredigal, 3 Barr, 221, 223 j Updegrove t-. Zimmerman, 1 H'arris, 619; Chapman v. Calder, 2 Id., 365, 367j Bourland v. Eidson, 8 Grattan, 45. (1) g 165, Bush V. Prosser, 1 Kernan, 350 j overruling, S. C. 13 Barbour, 222. (2) Minesinger v. Kerr, 9 Barr, 312. Speaking of the Pennsylvania cases, the respectable District Court of the City of Phila- delphia, said in Donnelly v. The Public Ledger, "The Supreme Court of Pennsylvania has gone as far as any other superior tribunal, in permitting evidence to be given of the cause or occasion of a, libel in mitigation of damages, in cases where the defendant is unable or unwilling to plead and prove the truth as u. justification. It was held as far back as Kennedy V. Gregory^ 1 Binney, 85, that an allegation that the plaintiff was given to drink, or was said to be given to drink, might be proved to be a mere repetition of statements previously made by others, although some doubt was expressed whether the evidence would have been admis- sible, had the charge been shown to have been made positively, and not as matter of hearsay. In the subsequent case of Morris v. Duane, Chief Justice Tilghman gave the weight of his authority to this doctrine, which he carried still farther, by ruling that the editor of a newspaper, might prove that he had been led to print an unfounded accusation against the plaintiff, by finding an anonymous letter stating the grounds on which it was based j and thus show that his conduct had been the result of negligence and indiscretion, and not of a settled and deliberate purpose to injure. And the Chief Justice, at the same time, also intimated an opinion, that actual malice and falsehood may be disproved by evidence of facts or circum- stances, which have induced a belief in the plaintiff's guilt, and yet are not of a nature to prove its existence. The doctrine thus laid down at Nisi Prius, was adopted and applied many years afterwards by the Court in banc, who held that a defendant in an action of slander may show that he was led to speak the words complained of by statements made to him by others, or by facts which have fallen under his own observation, if the evidence, as a whole, does not substantiate the slanderous charge, and would not be a defence under a plea of justification. {Beehler v. Stoever, 1 Miles, 146; 2 Wharton, 3, 14.) The generality of the rule thus established, has been limited by subsequent decisions, which explain and qualify, without overturning it; and the law of this State would now seem to be, that the right of the defendant to shield and exonerate himself, by explaining the motives on which he acted, will not fail merely because the evidence which he adduces is derogatory to the plaintiff, unless it is of a nature to establish the charge for which he seeks to recover. The defendant may, for the purpose of mitigating the damages, (said Sergeant, J., in Petrie v. Rose, 5 Watts & Sergeant, 364,) * show that the cause and occasion of uttering the words, were circumstances of suspicion known by him, or circulated and acknowledged by the plaintiff, and communicated to the defendant; for these tend directly to excuse or extenuate the conduct of the party, and affect the amount of damages.' Sidiilar ground was taken in JliHnesinger v. Kerr, (9 Penna. State, 312,) where the defendant, who had charged the plaintiff with stealing his boards, was held entitled to show that he had actually taken them, but under such circumstances as to be a mere trespass, and not a felony; and the judgment of the Court below was reversed, for the exclusion of the evidence. These cases may not be altogether reconcilable with Updegrove V. Zimmerman, (1 Harris, 619,) but they are cited and relied on in Chapman v. Calder, (2 Harris, 365,) which also establishes a point of some moment in the present inquiry, that the truth of a privileged communication may be proved under the general issue, without a plea or notice of justification." 190 DAMAGES IN" SLANDER AND LIBEL. mitigation. (1) In Kentucky, however, it has been kid down thut the rule authorizing the admission of facts and eircumstanees in mitigation, must be circumscribed to such evidence as may tend to diminish the injury which would result by implication of law from the slander, without any such mitigating tes- timony ; and that consequently it does not allow proof of facts which may tend to show, merely that the defendant had reasonable grounds for believing the charge when he uttered it, but only of such facts as may show the nature and extent of the injury which the plaintiff suffered ;('2) and in Virginia it appears to be decided that circumstances showing probable ground of suspicion are not admissible in evidence. (3) In South Carolina, the admissibility of such evi- dence, though frequently taken for granted, does not appear ever to have been decided :(4:) where the point decided was that bad character, not only generally, but in respect to the particular matter charged, was admissible in evidence, there was a dictum quoted from English cases, that facts and circumstances showing ground of suspicion, not amounting to evidence of guilt, are admissible: and, though this has been repeated in the later cases, as a dictum, it has been treated with so much disfavour, that it can hardly be said that the principle is esta- blished in South Carolina. (.5) Whether previous reports of the plaintiff's having been guilty of the offence charged, are admissible, either as affecting his character, or as rebutting the presumption of malice, has been greatly disputed. In two English cases,(6) general reports of the plaintiff having been guilty of the matter charged, were reluctantly admitted; but these cases were doubted or disapproved in one case by Lord Tenterden,(7) and such evidence is said to have been rejected in another, by Lord Abinger. (8) The two former eases went entirely upon the ground that the reports formed a part of the general character, in regard to the particular matters charged : and such is the view taken in this country in Massachusetts, New York and Maine, of these oases.(9) In Alabama, the courts have in like manner been inclined to think that, after the plaintiff's general character has been shown to be bad, reports in general circulation as to his guilt, may be admissible, to show how far his character has been damaged ;(10) and in Kentucky, the rule seems to be the same, that general suspicion is admissible in mitigation of damages, on the ground of its affecting character, aild showing that the plaintiff has not been so much damnified. (II) In Penn- (1) Gilman v. Lowell, 8 Wendell, 673. (2) McCee v. Sodusky, a J. J. Marshall, 185, 186 ; Hart o. Reed, 1 B. Monroe, 166, 172 ; and see also, Grimes i-. Cojle, 6 Id., 301, 303. (3) Cheatwood v. Mayo, 3 Munford, 10; M'Alexander v. Harris, 6 Id., 465. (4) Buford V. McLuny, 1 Nott & M'Cord, 268. (6) See Randall i: Holaenbake, 3 Hill's S. C, 175; Freeman v. Price, 2 Bailey, 115; Top- penheim i: Wilkes, 1 Strobhart, 275. (6) Leicester v. Walter, 2 Campbell, 251 ; and v. Moor, 1 Maale & Selwyn, 285. (7) Waithman v. Weaver, 11 Price, 257, note. (8) Wolmer v. Latimer, 1 Jurist, US; see also Saunders v. Mills, 6 Bingbam, 213, 224. (9) Alderman v. French, 1 Pickering, 1, 18; Paddock f. Salisbury, 2 Cowen, 811; Oilman r. Lowell, 8 Wendell, 573, 581; and Ridley v. Perry, 16 Maine, 21. (10) Bradley v. Gibson, 9 Alabama, 406 ; Shelton v. Simmons, 13 Id., 467, 46S. (11) McGee v. Sodusky, 5 J. J. Marshnll, 185; and Hart u. Reed, 1 B. Monroe, 166, 172, apparently limiting Calloway v. Middleton, 2 Marshall, 372; and see also to a similar effect, OILMAN V. LOWELL. 191 sylvania, it is declared by Gibson, 0. J.,(l) tbat "If the existence of suspicions be admissible in any case, and it seems to be so by the force of authority, it must be to show the previous plight of the defendant's character, in order to estimate the injury to it; for it is agreed, that as an inducement to a belief of actual guilt, it is not competent to detract from the malignity of the defend- ant's purpose ; and this is followed by an able and unanswerable argument against such admissibility for any purpose," (2) and probably the remark in Smith V. Stewart, 5 Barr, 372, 377, that reports are admissible, is to be under- stood as referring to their effect on character : in Henry v. Norwood, 4 Wafts, 'AA.1, 350, also, it is said that evidence of reports ought to be received very liraitedly. In some of the courts in this country, evidence of reports has been deemed admissible in mitigation of damages, as showing that the defendant did not malignantly invent the slander ;(3) and in some it has been held that evi- dence of the defendant having merely repeated what he had been told by another, is admissible in mitigation of damages. (4) [In Tennessee (5) the court excluded, as ef course, evidence " that there was a report or rumor in the neighbourhood," but while acknowledging that the " doctrine on the subject is certainly involved in a conflict of decision," thought that the defendant might Treat v. Browning, 4 Conncoticut, 409, 414 ; Case v. Marks, 20 Id., 248, 251 ; Torrey v. Field, 10 Vermont, 353, 412; and Dewit v. Greenfield, 5 Ohio, 225. (1) Long V. Brougher, 5 Watts, 439, 440. (2) " Anything short of justiCcotion," says the C. J., "must leave a residuum of malice suffi- cient to support the action, and damnges it seems are given, not to punish but to compensate. This last, however," he adds, " is not so clear. But it surely docs not lessen the injury, that the plaintiff's character, bleeding from a thousand wounds, has received only the finishing blow from the defendant. Who can say that it would not have weathered the storm had it not sunk at last under the accumulated weight of the defendant's wrongs? I am unable to see the justice of estimating character by its fragments, or of treating as matter of extenuation, the fact that the injured party had suffered the same prejudice from another. The blow may fall the heavier on sensibilities morbid from the repetition of injury. This principle has no analogue in any other part of the law; for, in the pursuit of reparation for a trespass to my person, I am not to be told that my battered carcass was of little worth to me by reason of a previous beating. All that could be done would be to protect the defendant from liability for specific injuries done by another. In that predicament the condition of the sufferer is an aggravation of the wrong, inasmuch as the residue of a man's soundness, whether of a body or character, is the more valuable to him, because it is all that he has to depend upon. It would be no extenuation of the putting out of an eye that the other had been put out before. It must not be forgotten, that the suspicions in question are groundless; the law presumes them to be so, and the defendant's refusal to insist on the truth of them, confirms it; and that on the other hand, the injury is wilful and malicious. Now it seems to be irreconcilable to the dictates of justice, that previous outrage should be made an invitation to aggression by cheapening the consequences of it to the perpetrator. I am, however, content to go as far as the decisions have gone, but no further; and there is nothing in any of them to prove that a stale and exploded accusation may be made a pretext for its repetition." (3) Cook V. Barkley, Pennington, 170; Nelson f. Evans, 1 Devereux, 9; Morris v. Barker, 4 Harrington, 620; Anon, cited in West v. Walker, 2 Swan, 34. (4) Evans v. Smith, 6 Dana, 363, 364; Kennedy v. Gregory, 1 Binney, 85; Easterwood v. Quin 2 Brevard, 64 ; (but see Poppenheim v. Wilkes, 1 Strobhart, 275) ; Duncombe v. Daniel], 2 Jurist, 32, Q. B.; see Parker v. McQueen, 8 B. Monroe, 16, 19. See also as to the copying of libels, Mullett i'. Hulton, 4 Espinasse, 248; Saunders v. Mills, 6 Bingham, 213, Creevy v. Carr, 7 Carrington & Payne, 64; and Morris v. Duane, 1 Binney, 90, note. (5) Ilan ock v. Stephens, 11 Humphreys, 510. 192 DAMAGES IN SLANDEE AND LIBEL. prove under the general issue, in mitigation of damages, that at the time of publication it was generally reported and suspected that the plaintiff was guilty of the particular offence imputed to him. This point, however, was not ad- judged;] and the weight of authority is clearly and powerfully against the admis- sibility of general reports of the plaintiff's guilt for any purpose whatsoever ; except of course as rebutting evidence on the subject of actual malice ;(1) and of evidence that previously to the defendant's speaking of the words, another person had told him the story as he repeated it. (2) Evidence of probable ground of sus- picion or belief, or of general reports, or of a communication of the matter from another, and, in general, evidence that the defendant believed what he uttered, seems to be adapted only to repel the presumption of actual and wanton malig- nity, and therefore to be appropriate only after the plaintiff has introduced into his case evidence of aggravated malice, in which case it seems properly admissible. (3) [As the law presumes malice no evidence disproving its exist- ence can be a bar(4) and it must be received with much caution even in miti- gation of damages.] Such evidence cannot take away legal malice, nor that ordinary malice that is reasonably to be implied from every slander, unless the defendant goes on to show a justifiable occasion or motive for uttering the inju- rious charge ; that is to say, unless he makes out a case of privileged communi- cation. Except, therefore, as rebutting evidence, of actual malice, and except in that definite class of oases known as privileged communications, legal principles seem to require that evidence that the defendant honestly and rea- sonably believed what he said, and uttered it without ill will, should not be received : see the remark of the Chancellor in King v. Root, 4 Wendell, 114, 139; and see Usher v. Severance, 20 Maine, 9. In the Earl of Northampton's case, 12 Coke, 132, 134, it was resolved, that if one publish that he heard another, naming him, say that the plaintiff was a traitor or a thief, in an action on the case, if the truth be such, he may justify. [It is known that the 12th volume of Coke's reports, having been published long after his death and from manuscript of doubtful authenticity, is not regarded as very dependable ;] (5) and later decisions, in admitting the authority of this resolution, have always construed it very strictly, by holding that such a plea, to be good, must show that the defendant, at the time, disclosed a certain cause of action against another, by naming him at the time of speaking, and by stating the precise words used by him ; and that such person was amenable to the (1) Wolcott V. Hall, 6 Massachusetts, 514 ; Alderman u. French, 1 Pickering, 1, 18; BodTvell V. Swan et ux., .3 Id., 376; Matson c. Buclj, 5 Cowen, 499; Root u. King, 7 Id., 659, 662; Gilman v. Lowell, 8 Wendell, 673; Kennedy v. Gifford, 19 Id., 296, 300; Ridley v. Perry, 16 Maine, 21; Lewis t. Nile?-, 1 Root, 346 ; Young v. Bennett, 4 Scammon, 43, 46 ; Hatch (■. Potter, 2 Gilman, 725; Gilmor o. Ewbank, 11 II., 274; Owen v. MoKean, 14 Id., 459; Anthony V. Stephens, 1 Missouri, 254, 255; seo also, Scott v. McKinnish and wife, 15 Alabama, 662, 664. (2) Inman v. Foster, 8 Wendell, 602; Clark v. Mansell, 6 Metoalf, 374, 390; Treat v. Browning, 4 Connecticut, 409, 415; Anthony v. Stevens, 1 Missouri, 254,255; Moberly r. Preston and wife, 8 Id., 463, 466 ; Thompson v. Bowers, 1 Douglass, 321, 327 ; Mills and wife 11. Spencer and wife, 1 Holt, 533. (3) Hart II. Read, 1 B. Monroe, 166, 17J. (4) Bromage i>. Prosser, 4 B. & C. 247; Gilmer v. Eubank, 13 Illin., 271; Long v. Eakle, 4 Maryland, 458. (5) Wallace's Reporters, 3d ed., 115. GILMAN V. LOWELL. 193 plaintiff's action ;(1) and it was further held in several cases, that such a de- fence is not to be considered as amounting to a justification, but only as raising a presumption, prima facie, that the defendant did not circulate the slander maliciously, which presumption may be rebutted by testimony showing positive malice; and if the repetition is found to have been malicious, the defence alto- gether fails. (2) But the late English cases go yet further, and decide that the plea must show that the defendant believed the matter to be true, and that he repeated it on a justifiable occasion; which, in effect completely overrules the resolution in Northampton's oase;(3) and these decisions have been gene- rally recognised and approved in this country ; (4) hut not in Maine, where the older English practice is adhered to. (5) According to Bennett v. Bennett, 6 Carrington & Payne, 588, however, the defendant's giving at the time, the name of the person from whom he received the statement, would be evidence in mitigation of damages. [The weight of authority would seem to be, that as a repetition of a false charges against the character of another, extends and aggravates the original wrong, it cannot be excused by an accompanying disclo- sure of its author, unless it be induced by a belief in the truth of the accusation, and occur under circumstances which rebut the presumption of malice; (6) perhaps proof that a slander was repeated or circulated by others, will ordi- narily be as inadmissible in aggravation of damages, as that of other unlawful acts of third parties.] (7) It should be observed, also, that the doctrine of Northampton's case, never was extended to libels, and that it is no justification, there, that the defendant had the matter from another whose name he disclosed in the publication :(8) it is said to be admissible in mitigation of damages. (9) Under the general issue, in mitigation of damages, the defendant may prove that the words were spoken through heat or passion, or under intoxication, and not with intention to make a serious charge against the plaintiff; for evidence that the speaking was impulsive and involuntary, undoubtedly diminishes malice, (1) Davis 1?. Lewis, 7 Term, 17 ,• "Woolnoth v. Meadows, 5 East, 463 ; Maitland v. G-oldney, 2 Id., 426, 437; Saunders v. Mills, 6 Bingham, 213; McGregor v. Thwaites, 3 Barnewall & Cresswell, 24; Torrey v. Field, 10 Vermont, 353, 412; Tatlow v. Jaoquett, 1 Harrington, 333; Church V. Bridgman and wife, 6 Missouri, 190, 193; Moberly v. Preston and wife, S Id., 463, 464; Hersh v. Ringwalt, 3 Teates, 508, 620; Scott v. Peebles, 2 Smedes k Marshall, 646, 559. (2) Crane v. Douglass, 3 Blackford, 195; Miller v. Ken, 2 M'Cord, 286; McBrayer i;. Hill, 4 Iredell's Law, 136 ; and see Dole v. Lyon, 10 Johnson, 447, 449 ; Hersh v. Eingwalt, 3 Yeates, 508, 610 ; Clumerford v. McAyoy, 15 Illinois, 315 ; see also McGregor v. Thwaites, 3 Barne- wall k Cresswell, 24. (3) MoPherson v. Daniels, 10 Barnewall & Cresswell, 263; Ward v. Weeks, 7 Bingham, 211, 216. (4) Moberly v. Preston and wife, 8 Missouri, 463, 465; Stevens v. Hartwell, 11 Metcalf, 542, 649; Skinner v. Grant, 12 Vermont, 466, 462; Jones ti. Chapman, 6 Blackford, 88; Clarkson V. McCarty, Id., 674;. Smith «. Stewart, 5 Barr, 372; Inman «. Foster, 8 Wendell, 602. (6) Haynes v. Leland, 29 Maine, 233. (6) Skinner w. Grant, 12 Vermont; Inman v. Foster, 8 Wend. 602; Jones v. Chapman, 5 Blackford, 88. (7) Stevens v. Hartwell, 11 Metcalf, 642; Olmsted v. Brown, 12 Barbour, 667; note to Tidman v. Ainslee, 10 Exchequer, 66. (8) De Crespigny o. Wellesley, 5 Bingham, 392; Delegal u. Highley, 3 Bingham, N. C, 950, 961; Tidman v. Ainslee, 10 Exchequer, 61 ; Clarkson v. MoCarty, 5 Blackford, 88 ; Dole ti. Lyon, 10 Johnson, 447. (9) See Runkle v. Myer, et al., 3 Teates, 518; Binns v. MoCorkle, 2 P. A. Browne, 79, 89. VOL. L — 13 194 DAMAGES IN SLANDER AND LIBEL. as understood by the law; therefore, immediate provocation by the plaintiff, under the excitement of which the words were spoken, may be given in evi- dence ;(1) and so in an action for libel, previous verbal slanders, of which it is a resentment, may be given in evidence. (2) Perhaps it is a general principle, that all the immediate circumstances under which the words were uttered are proper to be shown to the jury, as they define the true character of the speak- ing which is alleged to be slanderous; see Taylor v. Church, 4 Selden, 452; [where it was shown that the defendant had ordered the paper which was libellous, a paper relating to business concerns, to be printed in as private and confidential a manner as possible, and see, also, cases cited below:] (3) but evidence that the plaintiff has been in the habit of slandering or libelling the defendant, is not admissible for any purpose; (4) nor is evidence of the parties being enemies, or having had a quarrel. (5) And with regard to the admissi- bility of previous libels by the plaintiff on the defendant, the rule is, that a previous libel, which was the immediate provocation of the libel sued on, and raises a fair presumption that the latter was written in the heat of blood, and in consequence of the provocation, may be admitted in mitigation of dam- ages; (6) and where the libel sued upon has relation to another previous publi- cation of the plaintiflF, to or upon which it is a reply or comment, and which is necessary to the understanding of the libel in suit, or of the occasion of its publication, such writing may be given in evidence for purposes of explana- tion ;(7) but distinct and independent libels, or libels remote in time, published by the plaintiff against the defendant, are not admissible for any purpose. (8) Under the general issue, the insanity of the defendant at the time of speak- ing the words may be given in evidence in excuse or mitigation of damages; (9) and probably it is a complete defence ;(10) partial insanity, also, on the subject to which the words relate, may perhaps be admissible; but the insanity must be proved by proper evidence, and not by the opinions of the neighborhood;(ll) (1) Larned v. Buffington, 3 Massachusetts, 546, 653 ; Atkinson v. Hartley, 1 MoCord, 203 ; McKee v. Ingalls, 4 Scammon, 30 ; Craig v. Catlet, 5 Dana, 323; Howell v. Howell, 10 Iredell, 84; Iseley v. Lovejoy, 8 Blackford, 462 ; and see Swearingen v. Birch, 4 Yeatos, 322, 326. (2) Davis f. Griffith, 4 Gill & Johnson, 342. (3) Kennedy v. Dear, 6 Porter, 139, 142; Arrington v. Jones, 9 Id., 142; Grant v. Hoover, 6 Munford, 33; Craig v. Catlet, 5 Dana, 323; Easterwood v. Quin, 2 Brevard, 64; Beehler v. Stoever, 2 Wharton, 314, 326 ; Haynes v. Haynes, 29 Maine, 247. (4) Wakly v. Johnson, Byan & Moody, 422 ; McAlexander u. Harris, 6 Munford, 465 ; Goodbred v. Ledbetter, 1 Devereux & Battle, 121. (5) Andrews v. Bartholomew, 2 Metcalf, 609; Craig v. Catlet, 6 Dana, 323; Swann ■;;. Eary, 3 Blackford, 298. (6) Child V. Homer, 3 Pickering, 613; Watts v. Eraser, 7 Carriogton & Payne, 369; S. C, 7 Adolphus k Ellis, 223 : Fraser v. Barkeley, 7 Carrington & Payne, 621, 624; Tarpley v. Blaby 7 Carrington & Payne, 396; S. C, 2 Bingham's New Cases, 437. (7) Hotchkiss v. Lothrop, 1 Johnson, 286 ; Southwick v. Stevens, 10 Id., 443 ; Thompson v. Boyd, 1 Mill's Constitutional, 80. (8) May f. Brown, 3 Barnewall & Cresswell, 113; Tarpley v. Blabey, 2 Bingham's New Cases, 437 ; Watts v. Frazer, 7 Carrington & Payne, 369 ; Beardsley v. Maynard, 4 Wendell, 337 ; S. C, affirmed on error, 7 Id., 660 ; Gould v. Weed, 12 Id., 13. (9) Dickinson v. Barber, 9 Massachusetts, 225. (10) Bryant v. Jackson, 6 Humphreys, 199. (11) Teates v. Reed, 4 Blackford, 403, 465. OILMAN V. LOWELL. 195 but evidence that the defendant was ia the habit of talking much about persons and things, and that what he said was not regarded by the community as worthy of notice, and seldom occasioned remark, has been decided to be inadmissible in mitigation of damages. (1) It is laid down in several cases, that the filing of a plea in justification, which the defendant is not able to support by proof, is such conclusive evidence of malice, that the defendant will not afterwards be allowed to give evidence of mistake or absence of malice, in mitigation of damages. (2) But though such a plea, if not sustained, may be considered in aggravation of damages, it is going unreasonably far to forbid the defendant to give any evidence in miti- gation. The true rule seems to be, that a plea in justification only precludes the defendant from relying under the general issue on any ground that is in its nature inconsistent with the filing of such a plea; he cannot show that the words were spoken through heat or passion, for such deliberate re-aflBrmance of the assertion as true, is necessarily repugnant to the position that the words were spoken inadvertently and unintentionally; but beyond such actual incon- sistency, there seems tb be good reason why, when the defendant has failed in establishing the truth, he should not be allowed still to give any legal evidence in mitigation of damages under the general issue; and the better opinions are in favour of such practice. (-3) In Chuhb v. Flannagan, 6 Carrington & Payne, 431, 435, it was left to the jury to say whether a justification put on the record, and not substantiated by evidence, was not an aggravation of the original of- fence ; and this practice was approved in Updegrove v. Zimmerman, 1 Harris, 619, 622. And see Simpson v. Robinson, 12 Q. B. 511. It seems to be cer- tain that siich a plea does not prevent the defendant's recurring to the defence of absence of legal malice — that is, that the matter was a privileged communi- cation. (4) An invalid and insufiicient plea of justification would be entitled to no weight in aggravation of damages. (5) To aggravate the damages, the plaintiff may give evidence of actual malice and vindictive motives on the part of the defendant ;(6) and if the defendant plead a justification, without the general issue, the plaintiiF may still give evi- dence of actual malice to aggravate the damages. (7) For this purpose, there is no doubt, that evidence of all the circumstances, under which the words were spoken, and of the acts and manner of the defendant at the time, may be given ;(8) but in regard to the admissibility, in actions of slander and libel, of (1) Howe V. Perry, 15 Pickering, 506. (2) Alderman i'. French, 1 Pickering, 1, 18; King v. Boot, 4 Wendell, 114, 140; Gilman v. Howell, 8 Id., 573, 679; Purple v. Horton, 13 Id., 10, 26; Bradley v. Gibson, 9 Alabama, 406 ; Shelton v. Simmons, 12 Id., 466, 468. (3) See Larned v. Buffington, 3 Massachusetts, 546, 553; Sawyer v. Hopkins, 22 Maine, 269, 279; Parko v. Blackiston, 3 Harrington, 373, 378, 379; Morehead v. Jones, 2 B. Monroe, 210 ; King V. Root, 4 Wendell, 114, 163 ; MoNutt v. Young, 8 Leigh, 542, 563. (4) Howard v. Thompson, 21 Wendell, 320, 333, 334; Jarvis v. Hathaway, 3 Johnson, 180 ; Wright V. Woodgate, 2 Crompton, Meeson & Rosooe, 573. (6) Brader and Wife v. Walker, 8 Humphreys, 34. (6) See per Lord Abinger in Chalmers v. Payne, 2 Crompton, Meeson & Eosooe, 166; per the Chancellor in King v. Root, 4 Wendell, 114, 139 ; per Harrington, J., in Kinney v. Hosea, 3 Harrington, 397, 400 ; per Henderson, C. J., in Brittain v. Allen, 3 Derereux, 167, 171. (7) Sawyer v. Hopkins, 22 Maine, 269, 277; Parke v. Blackiaton, 3 Harrington, 373, 379. (8; Kinney v. Hosea, 3 Harrington, 401; Sawyer v. Hopkins; Craig v. Catlet, 5 Dana, 323. 196 DAMAUES IN SLANDEE AND LIBEL. other words or writings, of the same purport, uttered or published at a different time, and before or after the suit has been commenced, there has been much confusion in the cases. There seems to be no real distinction established be- tween repetitions before and after suit, nor between slander and libel. In Eng- land, formerly, the practice was to admit, as evidence of malice, only such other similar words as were not themselves actionable ;(1) and this distinction be- tween actionable and non-actionable words or writings which was overthrown in the earlier English cases,('2) seems to have been re-established in a later one. (3) And some of the cases had held, that subsequent matter was admissible to show the intention of the defendant, and only where the matter sued on was equivo- cal ;(4) but by the recent decision of Pearson v. Lemaiire, 5 Manning & Gran- ger, 700, 719 ; S. G. 6 Scott's New, 607, where all the cases are reviewed, the distinctions between the admissibility of actionable and non-actionable matter, and between the cases of equivocal and unequivocal meaning, are exploded, and the court, per Tindal, C. J., declare it to be a general rule, " that either party may, with a view to the damages, give evidence to prove or disprove the existence of a malicious motive in the mind of the publisher of defamatory matter ; but that, if the evidence given for that purpose, establishes another cause of action, the jury should be cautioned against giving any damages in respect of it. And if suoh evidence is offered merely for the purpose of ob- taining damages for suoh subsequent injury, it will be properly rejected. It may be difiicult/' he added, " to reconcile all the Nisi Prius cases upon this subject ; and the point does not appear to have been decided by any of the courts in Westminster Hall. But, upon the principle, we think that the spirit and intention of the party publishing a libel, are fit to be considered by a jury, in estimating the injury done to the plaintiff; and that evidence tending to prove it, cannot be excluded, simply because it may disclose another and differ- ent cause of action.'' Other cases are to a like effect./5) In this country, although it has lately been established in New York, that in actions of libel, only other non-libellous matter is admissible, and in action of slander, only suoh words as are not slanderous, or are barred by the statute of limitations, and that these are never to be considered for the purpose of enhancing damages ;(6) and there are dicta to the same effect in some other courts; (7) yet it may be taken to be the law of the American states generally, that the utterance of other slander- ous words of the same import, and so connected with them as to amount to a continuation of the same slander, may be admitted as evidence of malice ; but not distinct calumnies. (8) And this extends to a repetition of the slander, or (1) Cook V. Field, 3 Espinasse, 138; Mead u. Daubigny, Peake, 125, 126. (2) Lee v. Huaon, Peake, 107, and in Rustell v. Macquister, 1 Campbell, 49, note. (3) Defries v. Davis, 7 Carrington k Payne, 112. (4) Pearce v. Ormsby, 1 Moody So Robinson, 455 ; Symmons v. Blake, Id. 477 ; Stuart v. Lovell, 2 Starkie, 93, 95. (5) Stearns v. Cox, 17 Ohio, 690, and Wagner v. Holbrunner, 7 Gill, 301. (6) Root V. Lowndes, 6 Hill, 518 ; Keenholts v. Beeker, 3 Denio, 347 ; Rundell v. Butler, 7 Barbour's S. Ct. 260, 261 ; Campbell v. Butts, 3 Comstoek ; Howard v. Sexton, 4 Id. 161. (7) Randall v. Holsenbako, 3 Hill's So. Car. 176 ; Wilson «. Apple, 3 Ohio, 270. (8) Williams v. Miner, 18 Connecticut, 464, 472 ; Watson and wife d. Moore, 2 Gushing, 134, 137; Thompson v. Bowers, 1 Douglass, 322, 329; Brittain v. Allen, 3 Devereux, 167, 171; Hatch V. Potter et ux., 2 Gilman, 725, 730; Duyall v. Griffith, 2 Harris & Gill, 30; Scott v. GIL MAN V. LOWELL. 197 the utterance of similar slanderous matter, after the suit is commenced ;(1) though, of course, the spealiing or publishing of the matter sued upon must be proved to have been before the suit was commenced. (2) According to some of the cases, such repetition after suit, is proper evidence to aggravate the dam- ages ;(3) according to others, it is appropriate only for the purpose of showing the intent of the defendant in speaking the words sued on, (4) but for no other purpose, and if the court instruct the jury that they may take it into considera- tion in assessing damages, it is error ;(5) but in Pennsylvania, the distinction is, that damages cannot be given for such subsequent words ;(6) yet the subse- quent words are proper to increase the damages to be given for the words on which suit is brought ;(7) though in Ecl-iirt v. Wilson, 8 Sergeant & Rawle, 44, 45, Duncan, J., supposed, that they were not admissible to increase the damages. It has been decided in several cases, that words of similar import uttered so long before those sued upon, as to be barred by the statute of limitations, are admissible to prove malice in the defendant, but are not to be considered by the jury in aggravation of damages. (8) It has been decided, also, in several cases, that whenever the plaintiff, to show malice, gives in evidence other slanders, or other parts of a libel than those declared on, the defendant may, under the general issue, prove them to be true;(9) but as the truth of words does not diminish their maliciousness, the justness of that rule seems to be question- able. Where the words oiFered as evidence of malice, consisted of a repetition of those declared on, the truth cannot be shown under the general issue. (10) Notwithstanding the great accumulation of authority in favour of it, this whole practice of giving in evidence words, or writings, published at other times, actionable or not actionable, and before or after suit, is utterly incon- sistent with legal principle, and tends to gross injustice. If such evidence is admitted for the purpose of affording ground to infer legal malice from the Mortsinger, 3 Blackford, 454; Shock v. M'Chesney, 2 Yeates, 47.3 ; see, however, remarks of Duncan, J., in Eckart v. Wilson, 8 Sergeant k Rawle, 44, 53, and M'Almont v. M'Clelland, 14 Id. 369, 361. (1) Wallis V. Mease, 3 Binney, 540, 560; Kean v. M'Laughlin, 2 Sergeant & Rawle, 469 ; Bodwell V. Swan et ux., 3 Pickering, 376, 378; Kennedy v. Gifford, 19 Wendell, 296, 300; Teague v. Williams, 7 Alabama, 842, 850 ; Smith v. Wyman, 16 Maine, 13 ; True v. Plumley, 36 Id. 466; Taylor v. Kneeland, 1 Douglass, 68; Miller v. Kerr, 2 M'Cord, 28C, 288; Randall u. Holsenbake, 3 Hill's So Car. 175; Morgan v. Livingston, 2 Richardson, 574, 585; M'Intyre V. Young, 6 Blackford, 496, 498. (2) Taylor v. Sturginggen, 2 Reports, Const. Ct. 2d ser. 367; Scovell v. Kingsley, 7 Connec- ticut, 284; Keanholts <;. Beeker. (3) Williamson v. Harrison, 3 Missouri, 411, 412. (4) White V. Sayward, 33 Maine, 323. (5) True v. Plumley, 36 Maine, 466 ; M'Glemery v. Keller, 3 Blackford, 488, 489 ; Schoon- over V. Rowe, 7 Id. 202 ; Hester v. Deirant, 3 Indiana, 503 ; Forbes v, Myers, 8 Blackford, 74 ; Lanter v. M'Ewen, Id. 495 ; Scott v. M'Kinnish and wife, 15 Id. 662, 666 ; Teague v. Williams. (6) Wallis V. Mease, 3 Binney, 646, 550. (7) Keon v. M'Laughlin, 2 Sergeant . Livingston, 2 Richardson, 574, 588. (9) Warne v. Chadwell, 2 Starkie, 171; Booles v. Shackleford, 1 Littell, 35, 38; Henry v. Norwood, 4 Watts, 347: Wagner v. Holbrunner, 7 Gill, 297. (10) Teagle v. Deboy, 8 Blackford, 134, 136. 198 DAMAGES IN SLANDEE AND LIBEL. matter charged in tbe declaration, then, if legal malice was inferrible before, they are unnecessary, and if it was not, they give a cause of action where be- fore there wag none : but if the object of such evidence is to introduce actual malice into the case, it can have no other operation than to increase the dam- ages. If the jury are not to give higher damages on account of it, it is use- less ; and if they do, this result follows, that the words, if not slanderous or libellous in themselves, are yet so made use of as to bring damages, though not connected with the principal words as part of the res gesta, and are made to sustain a verdict where they would not sustain an action; and if they are slanderous or libellous, they may become the ground of another suit, and a double compensation. The distinction apparently taken in the English case of Pearson v. Lemailre, the Pennsylvania cases already cited, and Brittain v. Allen, 3 Devereux, 167, 171, that though damages are not to be given for the injury done by the subsequent words, yet these words may be used to inflame the damages given for the words in the declaration, might be applicable in cases of special damage, but as applied to words actionable in themselves, it is futile and nugatory. Moreover, the fact that the defendant, months, or years, before or after the occasion stated in the declaration, uttered similar charges, with malice, does not reasonably prove that he was actuated by malice on the particular occasion sued upon: and this is especially to be considered, in regard to words or publications after suit brought. A man may have spoken or pub- lished something injurious to another, but without the least actual malice : he is sued for slander or libel, and then, in resentment for such treatment, he reiterates his charges with real malignity. Tbe reasons suggested in some of the cases ;(!) that such evidence shows that the publication, or utterance, was not by mistake or inadvertence, would not justify the admission, before the defendant has given evidence that it is not intentional, for the law implies intention. The suggestion in Fearce v. Ormshj, 1 Moody & Robinson, 455, and in Simmons v. Blalce, Id. 417, of admissibility to explain the meaning, seems still more groundless, for it does not follow that the person means the same thing in every writing or speech on the same subject. The admission of such evidence seems, in every view, irrational and dangerous, and it is to be hoped that the court will retrace their steps in regard to it. It is well settled that the bringing of one action for slanderous words, does not bar the plaintiff from having another action for other words, whether spoken before or after the commencemout of the suit. (2) It should be observed, however, that there is no doubt that the plaintiff may give evidence of the utterance of the same words at different times, so long as he does not go beyond the words laid in the declaration ; and ho may recover damages for the injuries on each occa- sion. (o) [So, too, he may give evidence of certain words, hy uay of shouinij malice in the use of other vjords, on which he brings suit, and afterwards reco- ver, in another suit, as a substantive ground of action, on the words which he has used as evidence. ](4) The Cjuestion, whether the plaintiff may give evidence of his rjood character, (1) See Delegall v. Highley, 8 Carrington & Payne, 414, 450, auii Plunkett v. Cobbett, 5 Espinasse, 36. (2) Henson v. Veatch, 1 Blackford, 370. (3) Charlton v. Barrett, Peake, 32 ; Root i>. Lowndes, 6 Hill, 518 (4) Campbell v, Biltts, 3 Comstock, 174. GILMAN V. LOWELL. 199 has beea variously held. In some of the cases, evidence of the plaintiff's good character has been considered admissible, under the general issue, on the ground [not a correct one, it has been saidjM) that by the nature of the action, his cha- racter is put in issue, even when it has not been attacked by the defendant's pleas or evidence ;(2) and in Massachusetts, such evidence was admitted where a plea in justification had been filed, but it was doubted whether it would be admissible under the general issue ;(3) and so in Alabama, it is said that the plaintiff's character is not in issue until it has been attacked by plea on record, or by evidence on the trial; and, therefore, until then, evidence of good cha- racter cannot be given ;(4) but there can be little doubt that the true principle is, that, except to rebut evidence of general bad character given by the defend- ant, such evidence is wholly inadmissible, whether the truth has been pleaded in justification or not; and this is held in several cases.(.5) There seems to be no question that such evidence is admispible after the plaintiff's character has been attacked by testimony. (6) In Delaware, however, neither evidence of good nor of bad character of the plaintiff is admissible. (7) In slander or libel, evidence of the plaintiff's or of the defendant's circum- stances, rank, condition, and of the state of his family, is admissible, when offered by the opposite party, to increase or diminish the damages. (8) But in Case V. Marks, 20 Connecticut, 2-18, 250, it was held that a defendant could not give evidence of his own poverty at the time of uttering a slander in order to diminish the damages. Evidence of the falsity of the charges, where there is no justification pleaded, cannot be given; (9) at least, not without letting in evidence of the truth on the other side. (10) In assessing damages, the jury may take into considei'ation prospective damage likely to be occasioned (11) (1) ["The expression," say the Court, in Sharpe v. Stephenson, 12 Iredell, 348, 'Ms used in several of the text books, but it is ill-conceived and inaccurate. Character is not put in issue in an action of slander, under the general issue. The speaking of the words is put in is.suc, under the plea of justification. If the words import a particular charge, the specific offence only is put in issue. If the words are general, only a specific offence, of the kind embraced under the general charge, is put in issue.] Snow v. "Wicker, 7 Ired., 346." McAulay v. Birkhead, 13 Irod., 32. (2) King V. Waring, 5 Espinasse, 13 ; Bennett?). Hyde, 6 Connecticut, 24; Williams i>. Ilaig, 3 Richardson, 362 ; McCauley v. Birkhead, 13 Iredell, 29; Sample v. Wynn, 1 Busbee, 319. (3) Harding D. Brooks, 5 Pickering, 244 ; and this is followed in Scott d. Peebles , 2 Smedes & Marshall, 646, 660; and see Dewit v. Greenfield, 6 Ohio, 226. (4) Rhodes v. James, 7 Alabama, 675. (6) Matthews v. Huntley, 9 New Hampshire, 146; Cornwall v. Richardson, Ryan & Moody, 305 ; M'Cabe v. Platter, 6 Blackford, 406 ; see also Wheeler v. Shields, 2 Scammon, 348, 350 ; Stow V. Converse, 3 Connecticut, 326 ; Stone v. Varney, 7 Metcalf, 8fi, 91, 92 ; Hoiightaling v. Kilderhouse, 2 Barbour's S. Ct., 149; 1 Comstock, 630; see also Flitcraft v. Jenks, 3 Whar- ton, 168. (6) Inman v. Foster, 8 Wtsndell, 602 ; HoUey t;. Burgess, 9 Alabama, 728. (7) Parke v. Blaokiston, 3 Harrington, 373, 375. (8) Larned v. EufBngton, 3 Massachusetts, 546, 563 ; Bennett v. Hyde, 6 Connecticut, 24, 27 ; Beehler v. Stoever, 2 Wharton, 314, 325 ; M'Almont v. M'Clelland, 14 Sergeant & Rawle, 359, 362; Parke v. Blackiston ; and see Stone v. Varney, Gilman i. Lowell, 8 Wendell, 673, and Lewis v. Chapman, 19 Barbour, 257. (9) Stuart v. Lovell, 2 Starkie, 93, 94. (10) Browne v. Croorae, Id., 297, 298. (11) Gregory v. Williams, 1 Carrington & Kirwan, 568 ; Nigram v. Lawson, 8 Scott, 477. 200 MALICIOUS PROSECUTION. MALICIOUS PEOSECTJTION. MUNNS V. DUPONT ET AL. In the Circuit Court of the United States, for the District of Pennsylvania. PHILADELPHIA, APRIL TERM, 1811. [reported, 3 Washington's circuit court, 31-41. j Of the malice of a cJiarge which is the ground of a prosecution for a crime, the jury are exclusively the judges. Probable cause for such a prosecution, is a mixed question of law and fact. Wliat circum- stances are sufficient to "prove a probable cause, and must be decided by the Court ; but to the jury it must be left to decide, whether these circumstances are proved by credible testimony. Probable cause, is a reasonable ground of suspicion, supported by cir- cumstances sufficiently strong in themselves, to warrant a cautious man in believing that the accused was guilty. This was an action for a malicious prosecution : 1. In charging the plaintiff before Alderman Keppele, in Philadelphia, ■with having stolen a brass pounder, and three draughts of machinery ; and causing the plaintiff to be imprisoned. 2. In bringing a civil action, and demanding excessive bail. 3. Causing the plaintiff to be indicted in the state of Delaware, as the receiver of five pieces of parchment sieves, knowing them to have been stolen. All charged to have been done maliciously, and without probable cause. The circumstances of the case w-hich are at all important, will appear in the charge. Washington, Justice. The plaintiff, having some skill in the mystery of making gunpowder, engaged with Brown, Page & Co., of Virginia, in November or December, 1808, to superintend a manufactory of that article, which they were about to establish near to Richmond; and with a view to obtain more complete information of the art than he then possessed, or to procure workmen, or certain parts of machinery, he came to the northward early in December. On the 9th, he put up at an inn called the Buck, within half a mile, or thereabouts, of the pow- der manufactory of the defendants, on the Brandywine. The powder MUNNS V. DUPONT ET AL. 201 of this manufactory had obtained great celebrity, and commanded the market, in consequence of the skill employed in making it, and probably from the use of certain parts of the machinery employed, particularly the parchment sieves. The plaintiff, immediately after his arrival at the Buck, opened a correspondence with some of the defendants' work- men, and had frequent interviews with them at the tavern ; at which times he made them considerable offers to induce them to leave the ser- vice of the defendants, and to go to the manufactory at Richmond. He also made them pecuniary offers, to procure for him patterns or models of the different parts of the machinery used by the defendants, and particularly to procure for him a sight of one of the brass pounders, or a pattern of it. The defendants, hearing of the plaintiff's conduct, called upon him at the tavern; and after offering considerable violence to his person, ordered him to quit the neighbourhood, which he did on the 14th. It is proper to remark, that pains were taken by the defendants to preserve the secrets of their art, and that strangers were not, without leave, admitted into the factory. Shortly after the plaintiff had left the neighbourhood, two of the defendants' workmen secretly went off, and at the same time, one of the brass pounders was missing. The plaintiff came to Philadel- phia, and a few days afterwards, the defendants arrived here. On the 22d, they applied to Alderman Keppele, for the warrant stated in the first count of the declaration, and, on their oath, valued the property charged to have been stolen, at ten thousand dollars. The officer to whom the warrant was delivered, met with the plaintiff the next day, and enquired of him, if his name was not Munns ? The plaintiff denied it, and assumed a fictitious name. The officer, however, being satisfied that he answered the description, carried him to the house of the high constable, where he acknowledged himself; and after he was informed of the nature of the charge against him, he put to the officer this question: — " If I was in the company of one who had stolen certain articles, am I guilty ?" The officer declined giving an answer, and conducted his prisoner to the office of Mr. Keppele. There he was examined, and by order of the alderman, his person was searched ; when certain letters were found in his pocket book, from him to Brown, Page & Co., and from them to him ; by which it appeared, that the plaintiff, previous to his arrest, knew that the defendants were in Phila- delphia, and suspected that they were following his steps — that he had obtained all the information he wanted, to enable the Richmond to equal the Brandywine powder manufactory ; and that some of the hands, belonging to the defendants, had left them and gone to Richmond. 202 MALICIOUS PROSECUTION. The alderman committed the plaintiff to the jail of Philadelphia, having required bail to the amount of fifteen thousand dollars, which the plaintiff could not give. On the 27th, the plaintiff was carried before Judge Rush, on a habeas corjius, who reduced the bail to one thousand dollars ; but this he could not get, and he was again com- mitted. On the 29th the defendants sued out the writ mentioned in the second count, for seducing the defendants' workmen and servants, and demanded bail in six thousand dollars, which, on citation before Judge Rush, was reduced to six hundred dollars. The defendants, having obtained from the Governor of Delaware, a requisition to the Governor of Pennsylvania, for the removal of the plaintiff to the former state, as a fugitive from justice, he was, upon the warrant of the Governor of Pennsylvania, removed on the 6th of Janu- ary, to the jail at New Castle. The defendants discontinued their civil suit in Pennsylvania, and renewed it in Delaware, laying their damages at four thousand dollars. On the 4th of February, the plain- tiff, upon a habeas corpus, obtained from the Chief Justice of Delaware, was discharged from confinement under the criminal charge, upon the ground that he ought to have been committed under a warrant from some magistrate of that state, and not under the warrant of the Governor of Pennsylvania, which only authorized his removal. But he was remanded, to answer to the civil action. Thinking now to correct this error, the defendants obtained a second warrant against the plaintiff, from a justice of the peace of Delaware ; charging him with a suspicion of having stolen a brass stamper, and sundry other articles, of the value of forty dollars, or having caused the same to be stolen. It is admitted that the stamper is the same instrument with the pounder, mentioned in the warrant issued by Mr. Keppele. On the 11th of March, the plaintiff was again discharged upon a habeas corpus on the ground, that by the law of Delaware no person can be committed by a judge or justice, who has once been discharged upon a habeas corpus from con- finement, on account of the same offence. In May, a bill was sent to the grand jury, charging the plaintiff as the receiver of five pieces of parchment sieves, the property of the defendants, knowing them to be stolen. The jury found the bill, and the trial being postponed, upon the motion of the plaintiff, until December, (during all which time he remained in confinement,) upon a trial before the petit jury, the defendant was found not guilty. The Attorney-General then moved the Court to certify probable cause, in order to compel the plaintiff", Munns, to pay the costs of that prosecution, under the Constitution of the state. But the counsel for Munns agreed that his client should MUNNS V. DTJPONT ET AL. 203 pay the costs, if the Court would not grant the certificate ; in conse- quence of which, the certificate was not granted. The balance of the evidence, except such parts of it as will be more particularly noticed hereafter, relates to the plaintiff's sufferings, which it must be acknowledged, were very great. But as to these, it is to be observed, that except where they were produced by the immediate agency or interposition of the defendants, no inference of malice can be drawn from them, to charge the defendants, although they may be con- sidered in estimating the damages, if the plaintiff has made out such a case as to entitle him to a verdict for anything. For the assault and battery at the Buck, the defendants have been indicted and punished, by a fine of fifteen dollars each, so that that transaction is no otherwise to have influence on your minds, than as it may become an item in the account of malice charged upon the defendants. So, too, the high value affixed to the articles charged to have been stolen, in the Phila- delphia warrant, and the low value fixed to the same article^, in the Delaware warrant, and the amount of damages claimed in the civil suit, brought in Pennsylvania, are only to be considered in relation to the question of malice. The question, then, is, are the defendants liable for damages, on account of the warrant issued by Mr. Keppele, and the consequent con- finement of the plaintiff under it ? and 2d, are they liable in consequence of the indictment in Delaware, and the injuries to which it exposed the plaintiff? The question upon which this cause must be decided, is not whether the plaintiff has suffered from the charge of which the defendants were the authors, and which was not founded in truth, but whether the charge was made maliciously, and without probable cause. In trials of actions of this nature, it is of infinite consequence to mark with precision, the line to which the law will justify the defendant in going, and will punish him if he goes beyond it. On the one hand, public justice and public security require that offenders against the law should be brought to trial, and to punishment, if their guilt be established. Courts and juries, and the law ofiicers, whose duty it is to conduct the prosecutions of pub- lic offenders, must in most instances, if not in all, proceed upon the information of individuals ; and if these actions are too much encou- raged, — if the informer acts upon his own responsibility, and is bound to make good his charge at all events, under the penalty of responding in damages to the accused, few will be found bold enough, at so great a risk, to endeavour to promote the public good. The informer can sel- dom have a full view of the whole ground, and must expect to be fre- 204 MALICIOUS PROSECUTION. quently disappointed, by evidence which the accused only can furnish. Even if he be possessed of the whole evidence, he may err in judgment ; and in many instances the jury may acquit, where to his mind the proofs of guilt were complete. It is not always the fate of those to command success, who deserve it. On the other hand, the rights of individuals are not to be lightly sported with ; and he who invades them, ought to take care that he acts from pure motives, and with reasonable caution. For the inte- grity of his own conduct, he must be responsible ; and his sincerity must be judged of by others, from the circumstances under which he acted. If, without probable cause, he has inculpated another, and subjected him to injury, in his person, character, or estate, it is fair to suspect the purity of his motives, and the jury are warranted in presuming malice. But though malice should be proved, yet, if the accusation appear to have been founded upon probable ground of suspicion, he is excused by the law. Both must be established against him ; viz., malice, and the want of probable cause. Of the former, the jury are exclu- sively the judges — the latter is a mixed question of fact and law. What circumstances are sufEcient to prove a probable cause, must be judged of, and decided by the Court. But to the jury it must be referred, whether the circumstances which amount to probable cause are proved by credible testimony or not. What, then, is the meaning of the term " probable cause ?" We answer, a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the oflFence with which he is charged. What, then, were the grounds of suspicion, upon which the defendants acted in relation to the warrant of Alderman Keppele, under which the plaintiff was apprehended and committed ? The plaintiff was a stranger, and his character totally unknown to the defendants. He took up his abode at an obscure tavern, in the neighbourhood of the defendants' manufactory, where he contrived to procure frequent interviews with the workmen employed there, for the purpose of seducing them from their engagements with the defendants, and of obtaining from them. a knowledge of the machinery and process, used in the manufacture of gunpowder, which the defendants had carefully endeavoured to keep secret. He offers one of them in particular. Bowman, a reward for bringing to him a brass pounder, or a pattern of it. The pounder was brought, was afterwards concealed, and about the same time. Bowman secretly absconded. The plaintiff' came to Philadelphia, and although he soon afterwards knew that the defendants were also in the city, and MUNNS V. DUPONT ET AL. 205 suspected that they were following his footsteps, as he expresses it in a letter to his employers, yet, when arrested by the constable, he denied his name, and put to that officer a question, by no means calculated to allay the suspicions which existed against him. The letters taken from him by the alderman, developed fully the objects which had carried him to the neighbourhood of the defendants, and contain allusions to the article of machinery which the defendants had missed. Called upon to declare an opinion, whether these circumstances, if proved to your satisfaction, afforded a probable cause for the prosecu- tion in relation to the brass pounder, the Court feels no hesitation in saying, that they did ; and still further, that the plaintiff has no person but himself to blame for that prosecution, and the sufferings it has pro- duced. A man may undesignedly and innocently become the object of suspicion, and of unmerited, though justifiable prosecution. In such a case he may with great propriety call upon his accuser to acquit him- self, by strong evidence, from the charge of rashness and malevolence, before he can claim to be excused from the consequences of his conduct. But, if he has intentionally acted in such a manner as to connect him- self with the supposed guilt, and has in fact, participated in it, shall he be permitted afterwards to complain that he had become an object of suspicion, and to claim the assistance of the law, to compensate him for the losses to which he had thus exposed himself? In this case, the brass pounder was taken and carried away, at the instigation of the plaintiff; was in his possession, as he afterwards acknowledged; and was then concealed by the person who took it, and who afterwards ran off: — and does it now lie in the plaintiff's mouth to say, that the de- fendants had not probable cause for suspecting him as the felon? But, it is said, that still there is no proof, that a larceny was committed by any person ; and the proof of this is essential to the defence. With- out determining conclusively upon the soundness of the doctrine con- tended for, we must be permitted to express the hesitation of the Court, in approving it. It would seem to demolish the whole ground of defence, allowed to the defendant in this action ; if, notwithstanding the strongest circumstances of guilt, the motives of the action should, upon a full examination of the evidence to be furnished by the person sus- pected, turn out differently from what they appeared ; — if probable cause shall excuse, in relation to the person suspected, and yet afford no protection as to the offence supposed to have been committed. But, it is by no means to be admitted, that a larceny was not committed, in relation to the brass pounder. Baron Eyre defines larceny to be " the wrongful taking of goods, with intent to spoil the owner causa lucri ;" 206 MALICIOUS PEOSECUTION. and what are the facta of this case ? Bowman secretly took, and car- ried away this instrument, for a reward promised him by the plaintiff, as is proved in the cause ; and he concealed, or otherwise disposed of it, so that it was lost to the owner. Whether his intention was to spoil the owner, or to convert the article to his own use, would be a proper subject of inquiry with a jury, upon all the circumstances of the case. But, it is proved by two witnesses, that the plaintiff afterwards acknowledged that Bowman had stolen the pounder ; and whether, in technical language he had done so or not, the plaintiff cannot, in this action, make it an objection, that in point of strict law, a larceny was not committed. As to the three draughts of machinery, charged to have been stolen by the plaintiff, it must be admitted, that the defendants proceeded not only without probable cause, but without any cause at all. It does not appear by the evidence, that the defendants ever possessed such draughts, and consequently they could not have been deprived of them. This charge (which is certainly unfounded), being connected in the same warrant with another which was founded, may or may not have produced injury to the plaintiff; and if in your opinion it did so, and was maliciously made a ground of prosecution, the plaintiff is entitled to a verdict on that account, for such damages as you may think right. We shall notice the warrant taken out by the defendants in Delaware, merely for the purpose of observing, that it is not made a distinct ground of charge against the defendants, and is only relied upon as a circum- stance to prove malice. Of course, no damages could be given on account of that prosecution, even if it had been made without probable cause ; and if the defendants had probable cause for obtaining the first warrant, the grounds of suspicion had received additional strength, before the seco'nd was granted; the plaintiff having previously acknow- ledged that the pounder, or stamper (which means the same thing), had been stolen by Bowman, brought to him, and afterwards con- cealed. 2. The second ground of complaint is, the indictment against the plaintiff in Delaware, for having received five pieces of parchment, four of them perforated with holes, knowing them to have been stolen. How stands the evidence, in relation to these articles ? It is in full proof, if the witnesses are believed, that Peebles, one of the workmen in the defendants' manufactory, by the plaintiff's procurement, cut from the parchment sieves belonging to the defendants, without their knowledge MTJNNS V. DUPOKT ET AL. 207 or consent, a number of pieces of different sizes, "which the plaintiff after- wards had in his possession, and which were produced at his trial. And if this evidence required any support, the finding of the bill of indict- ment, and the agreement of the plaintiff's counsel to pay the costs of that prosecution, which the law, excused him from doing, unless a certi- ficate of probable cause was granted, are strong indeed upon the point of probable cause. Upon the whole, if the jury think that the facts above stated are proved, the plaintiff is not entitled to a verdict, as to the two charges which respect the pounder and sieves ; because, though he should have proved malice to your satisfaction, the defendants have justified them- selves by proving probable cause for those prosecutions. And as to the three draughts of machinery, you are to decide whether that charge was maliciously made, and was productive of injury to the plaintiff. The plaintiff suffered a nonsuit. The most prominent of the early decisions in the English reports, upon the action for malicious prosecution, is Savil v. Roberts, 1 Salkeld, 13, which is said in Potts v. hnlay, 1 Southard, 330, 383, to be " a leading case on this subject." The principle established in that case is summed up as follows, in Jones V. Gwynn, 10 Modern, 214, 217 : "The damage a person may sustain by an indictment, may relate either to bis person, his reputation, or his pro- perty ; and each of these is resolved, in the case of Savil v. Roberts, to be a just ground of this action." There are some distinctions, however, in regard to the different grounds of this action, which are very accurately traced in Frierson v. Hewitt, 2 Hill's So. Car. 499, 500. "To sustain the action of ma- licious prosecution, technically so called," says O'Neall, J., in that case, " the indictment must charge a crime; and then the action is sustainable ^er se, on showing a want of probable cause. There is another class of cases, which are popularly called actions for malicious prosecution, but they are misnamed; they are actions on the case, in which both a scienter and a iper quod must be laid and proved. I allude now, first, to actions for false and malicious prosecutions for a mere misdemeanour, involving no moral turpitude ; secondly, to an abuse of judicial process, by procuring a man to he indicted, as for a crime, when it is a mere trespass : third, malicious search warrants. In all these oases, it will be perceived, that they cannot be governed by the ordinary rules applicable to actions for malicious prosecutions. It is said by most of our law writers, that, in such cases, you must not only prove want of probable cause, but also express malice and actual injury or loss, as deprivation of liberty, and money paid in defence. The express malice necessary to sustain such actions, ought to be laid and proved, and this is what I understand by the scienter. As in an action for a false and malicious prosecution for a misdemeanour, it must be laid and proved, that the party knowing the defendant's innocence, still of his mere 208 MALICIOUS PEOSECUTIOK. malice, preferred the charge; so, in the second class of cases, it will not do to say, that you indicted me, as for a crime, for a trespass, without any probable cause, for in such a case no injury is done to the plaintiff, and no fault is estab- lished against the defendant, for which he can be punished. But, when to this statement we superadd the facts, that the defendant, knowing that the trespass complained of, was no crime, yet procured the plaintiflF to be indicted, as for a crime, malice is clearly made out; and, if the plaintiff has sustained any injury, the action will lie. There can be no necessary and consequential injury in such cases; it may, or may not arise. In other words, there is no implied injury; for there can be no slander, inasmuch as no crime is imputed. Actual injury must be stated and proved; and this constitutes the per quod. Deprivation of liberty, or expense of defence, will constitute suflScient ground to sustain this part of the action. "(1) It is, certainly, only in the case of a crime, or, at least, an indictable offence involving moral turpitude, the verbal imputation of which would be slander, that the mere preferring of an indict- ment, or issuing of a warrant, or other instituting of a criminal proceeding, without arrest or special damage, is actionable. Indeed, it was said by Patto- son, J., in Gregory v. Derhy, 8 Carrington and Payne, 749, in the case of a charge of stealing, on which a warrant was issued, that if the party was never apprehended, no action would lie, and by the court in 0' Driscoll v. M Bunicy, 2 Nott & M'Cord, 54, 55, that " there can be no prosecution without an arrest :" but probably these remarks should be confined to cases, where the charge is not slanderous, or, at least, where arrest is specially made the gravamen in the declaration : for, if a slanderous charge be made before a magistrate and a warrant demanded, and a warrant thereupon issue, it is believed, that this form of action is the appropriate remedy; but, if no warrant issue, the remedy is slander, in the form of " imposing the crime of felony ."(2) If some, only, of the charges in an indictment for felony are without probable cause, an action for preferring an indictment, without probable cause, may be maintained (3) If a person state facts to a magistrate truly, which do not amount to felony, or constitute a different felony, and the magistrate, of his own motion, erroneously i,ssue a warrant for felony, or for another felony from that stated, the person is not liable to an action for malicious prosecution ; (4) and, if one swear, before the grand jury, to facts not amounting to a felony, and the jury find a felony, he is not responsible for the indictment. (5) An action may also be maintained, for charging a man before a magistrate, with any matter by which he may be imprisoned, and in consequence of which, he is imprisoned. (6) And an action lies for maliciously, and without probable cause, procuring a search warrant to be issued, to search the plaintiff's premises for stolen property, and arrest his person, upon which his premises are searched and his person arrested. (7) It has been decided in several oases, that an action for malicious prosecution (1) See, also, Byne b. Moore, 5 Taunton, 187. (2) See Fuller v. Cook, 3 Leonard, 100 ; Hey ward -o. Cuthbert, 4 M'Cord, 354; and siiprd,. (3) Reed «. Taylor, 4 Taunton, 616 ; Candler !.. Petit, 2 Hall, 315, 344. (4) Leigh v. Webb, 3 Espinasse, 165; Heyward v. Cuthbert, 4 M'Cord, 354; M'Neely f. Driskill, 2 Blackford, 259 ; Bennett v. Black, 1 Stewart, 495. (5) Leidig v. RawBon, 1 Scammon, 273, 274. (6) Randall v. Henry, 5 Stewart & Porter, 367. (7) Elsee r. Smith, 1 Duwling 4 Ryland, 97 ; Miller i: Brown, 3 Missouri, 127, 131. MUNNS V. DUPONT ET A L. 209 may be maintained, thougli the warrant or indictment were legally defective, and the person could never have been convicted ; for the disgrace, injury, trou- ble and expense are the same under a bad indictment as under a good one.(l) Where, however, a warrant was void, it was held that for an arrest under it, the remedy must be trespass, because a defendant cannot be liable in malicious prosecution, when the prosecution never legally existed. (2) It has been held, also, in some cases, that if the prosecution be before a court having no jurisdic- tion, the party may, at his election, bring either trespass or case; (3) but the better opinion is, that if the proceeding be extra-judicial, or before a tribunal having no jurisdiction, case for malicious prosecution cannot be maintained ; but that an action for slander is the remedy, if the charge were of that character, and trespass, if there were an arrest.(4) The true distinction is, between void and valid process; if valid, the remedy is case for malicious prosecution; if void, for irregularity, or want of jurisdiction, it is trespass. (5) Where the action is against a person for procuring a regular and legal warrant to be issued by a justice, it must be case; but if against a justice who, without probable cause, issues a warrant and commits, it is trespa.ss.(6) Each person who participates in causing a groundless prosecution, is severally liable. (7) An action on the case lies, also, in certain cases, for special damage occa- sioned to the person or property of another by maliciously, and without proba- ble cause, instituting a civil suit.(8) " There are no cases in the old books," says Lord Camden, in Goslin v. Wilcoclc, 2 Wilson, 302, 305, " of actions for suing where the plaintiff had no cause of action ; but of late years, when a man is maliciously held to bail, where nothing is owing, or when he is mali- ciously arrested for a great deal more than is due, this action has been held to lie, because the costs in the cause are not a sufficient satisfaction for imprison, inga man unjustly, and putting him to the difficulty of getting bail for a larger sum than is due." The first instance in the reports, of this action being brought for an arrest by civil process, is said to be the case of Daw v. Swaine, Siderfin, 424, in 21 Car. II. It is now wells ettled that arresting, and imprisoning, or holding to bail, where nothing is due, or for more than is due, if done mali- ciously and without probable cause, is actionable. (9) If the party has given bail, without there having been any actual arrest, the action must not be for malicious arrest ;(10) but should be for maliciously holding to bail, under a writ, upon a declaration framed according to the facts. (11) As to what is an arrest (1) Jones D. SwynD, 10 Modern, 214, 220; Chambers v. Robinson, 2 Strange, 691 ; Wicks v. Fentham, 4 Term, 247 ; Pippet v. Hearn, 5 Barnewall & Alderson, 6.S4 ; Anderson v. Buchanan,, Wright, 725. (2) Braveboy v. CockBeld, 2 M'Mullan, 270, 273. (3) Morris v. Scott, 21 Wendell, 281 ; Hays v. Younglove, 7 B. Monroe, 545. (4) See Turpin v. Kemy, 3 Blackford, 211, 216 ; Bodwell v. Osgood, 3 Pickering, 379, 383. (5) Allen v. Greenlee, 2 Dovereux, 370. (6) Morgan v. Hughes, 2 Term, 225. (7) Cotton V. Huidekoper, 1 Pennsylvania, 14S, 163. (8) See note 4 to Co. Litt. 161, a. (9) Kay v. Law, 1 Peters' C. C, 207, 210 ; Brush v. Burt, 2 Pennington, 979 ; Wickliffe v. Payne, 1 Bibb, 413 ; Butnap v. Marsh, 13 Illinois, 655. (10) Berry v. Adamson, 6 Barnewall & Cresswell, 628. (11) S. C, 2 Carrington & Payne, 503; Small «. Gray, Id., 605. VOL. I. — 14 210 MALICIOUS PEOSECUTION. in law, see Collins v. Fowler, 10 Alabama, 859. An action lies also for mali. oiously holding to bail, or maliciously attaching property, under the process of a court which has no jurisdiction.(l) And it lies for maliciously suing out an attachment, and attaching the plaintiff's property, where nothing is due, or for more than is due. (2) It lies also for maliciously suing out a domestic attach- ment, where, either there is nothing due, or the party has not rendered himself legally liable to such process ;(3) and for maliciously suing out a replevin and detaining a ship. (4") But it will not lie for the mere institution of a civil suit, in a court of competent, jurisdiction, where the person is not arrested, or held to bail, or his property attached, or other grievance occasioned, because the costs are considered a sufficient compensation. (5) And though in some instances the general principle has been asserted, that case will lie for any civil suit mali- ciously and groundlessly instituted; see Whipjile v. Fuller, 11 Connecticut, 582; Pangburn v. Bull, 1 Wendell, 354; yet, excepting where the person or property has been specifically injured, as by arrest, holding to bail, or attach- ment, all the cases seem to be, not for malicious institution of a suit, but for malicious abuse of the process of law, which is a diiferent action, and will be spoken of at the end of this note. Whipple v. Fuller was the case of an at. tachment : and Fanghurn v. Bull was for malicious abuse of process in suing a man twice for purposes of vexation. There is no doubt, however, of the general principle, that the malicious and groundless institution of legal proceedings of any kind, under circumstances of special damage, or circumstances that raise a legal presumption of damage, is actionable. And it matters not before what tribunal the proceeding has been, if it was causeless and malicious, and injured the plaintifif in person, property, or reputation. It will lie, therefore, for a suit in equity under such circumstances. (6) An action, also, will lie for, maliciously and without probable cause, suing out a commission of bankrupt against the plaintiff; Chapman v. Pickersgill, 2 Wilson, 145, and cases below. (7) And in Chapman v. Pickersgill, when the objection was made that the action was new. Lord Camden said, " I wish never to hear this objection again. This ac- tion is for a tort : torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief, and this suing out of a commission of bankruptcy falsely and maliciously, is of the most inju- rious consequence in a trading country." An action will lie also for maliciously advising and procuring one to sue or prosecute without probable cause. (8) It is doubted, however, in Firaz v. Nicholls, 2 Common Bench, 501, whether it (1) Goslin «. Wiloook, 2 Wilson, 302; Boon v. Maul, 2 Pennington, 862. (2) Lindsay v. Larned, 17 Massachusetts, 190 ; Savage v. Brewer, 6 Pickering, 453, 456 ; Wliipple V. Fuller, 11 Connecticut, 582 ; Bump v. Betts, 19 Wendell, 421 ; Young v. Gregorie, 3 Call, 446 ; Shaver v. White & Dougherty, 6 Munford, 110 ; and see Donnell t>. Jones et al., 13 Alabama, 491. (3) Williams v. Hunter, 3 Hawks, 546 ; Tomlinson &, Sperry v. Warner, 9 Ohio, 103. (4) Wells ti. Noyes, 12 Pickering, 324. (5) Dieta in Ray v. Law, 1 Peters's C. C. 207, 210 ; Potts v. Imlay, 1 Southard, 331 ; Algor 11. Stillwell, 1 Halsted, 166, (6) Davis V. Gully, 2 Devereux & Battle, 360, 363. (7) Brown ti. Chapman, 1 Blackstone, 427 ; S. C, 3 Burrow, 1418; Cotton u. James, 1 Barne- wall &, Adolphus, 128 ; Whiteworth v. Hall, 2 Id, 695. (8) Grove v. Brandenburg, 7 Blackford, 234; Mowry v. Miller, 3 Leigh, 661; Perdu u.Con- nerly. Rice, 49. MtJNNS V. DUPONT ET AL. 211 will lie for procuring one to bring a civil action. Neither case nor trespass will lie for executing a capias upon a person privileged from arrest as the suitor of a court, the privilege being that of the court. (1) In case of malicious arrest, or taking in execution, the plaintiflf in the suit is generally liable for the acts done by his attorney ; at least, unless there is clear evidence of the attorney's acting without, or against the party's consent ;(2) and the attorney is not liable, unless he was not authorized, or unless he knew that the suit was groundless, and wilfully and maliciously took part in a scheme of bringing a vexatious ac- tion. (3) [But in that case he is; and the question will be, had they reasona- ble or probable ground as an attorney, a point on which evidence that would be sufficient as against their principal, may not be as regards him.](4) In regard to the principles upon which these actions rest, and the rules ap- plicable to them, some of the cases have said that there are essential distinctions between actions for criminal prosecutions, and for civil suits. (5) But at the present day, both classes of actions seem to stand on the same legal footing. The principles upon which the action for malicious prosecution, or suit rests, were first clearly stated in Fanner v. Sir Robert Darling, 4 Burrow, 1971, 1974 ; where all the judges agreed as to the ground of this sort of action, '< That malice, (either express or implied,) and the want or probable cause, must both concur." A few years later, occurred the celebrated case of Sutton v. Johnstone, 1 Term, 493, which was an action on the case for a malicious prosecution before a court-martial, and in which the judgment of the Court of Exchequer was reversed on error in the Exchequer Chamber; Johnstone v. Sutton, Id. 510; and the reversal confirmed in the House of Lords; see 1 Brown's P. C. 76. The reasons given by Lords Mansfield and Loughborough, for the reversal in the Exchequer Chamber, have always been admired, as pre- senting a comprehensive and accurate view of the ground and nature of this action. (See a strong approbation of these views in WiUans v. Taj/lor, 6 Bing- ham, 183, 188, and in S. C. in error, Taylor v. Willans, 2 Barnewall & Adol- phus, 857, 858, 859; in Mitchell v. Jenkins, 5 Id. 594 : and in Musgrove v. Newell, 1 Meeson & Welsby, 585, 587, where Alderson, B. remarked that "all the principles applicable to the case are beautifully laid down in Johnstone v. Sutton,'' and Lord Abinger, C. B., said " that the principles of law by which such oases are governed, cannot be better laid down than in the case of John- stone V. Sutton.") These principles, as there explained, are as follows: " The essential ground of this action is, that a legal prosecution was carried on without a probable cause. We say this is emphatically the essential ground; because every other allegation may be implied from this ; but this must be sub- stantively and expressly proved, and cannot be implied. " From the want of probable cause, malice may be, and most commonly is, implied. The knowledge of the defendant is also implied. (1) Cameron v. Lightfoot, 2 Blackstone, 1190 ; Maguay v. Burt, 5 Queen's Bench, 381. (2) Jones v. Nioholls, 3 Moore & Payne, 12. (3) Stockley v. Hornidge, 8 Carrington & Payne, 11, 18; Bioknell v. Dorion, 16 Pickering,. 478, 490 ; Wood v. Weir & Sayre, 5 B. Monroe, 544, 547. (4) Burnap v. Marsh, 13 Illinois, 540 ; and see Stevens v. Midland Cos. E. K., 10 Ex. 356. (5) See Savil v. Roberts; Wengert v. Seashore, 1 Pennsylvania, 232; Herman v. Brooker- hoof, 8 Watts, 240. 212 MALICIOUS PROSECUTION. " From the most express malice, the want of probable cause cannot be im- plied. " A man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action. " After a verdict, the presumption is, that such parts of the declaration, without proof of which the plaintiff ought not to have had a verdict, were proved to the satisfaction of the jury. In this case, to support the verdict, there was nothing necessary to be proved, but that there was no probable cause, from whence the jury might imply malice, and might imply that the defendant knew there was no probable cause. " The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable, are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law." The principle, that malice alone, even the most express, if there were either real or probable ground of proceeding, will not be sufiScient to sustain the action, but that both malice and want of probable cause must be established, has been constantly affirmed in the later cases. (1) And though want of probable cause is necessary to support the action, yet those very words need not be alleged in the declaration, the words, falsely and maliciously, necessarily including a con- scious want of probable cause. (2) Some American cases, however, conflict with those authorities. In Gibson v. Waierhouse, 4 Greenleaf, 226, the omission of an allegation of want of probable cause was decided to be bad after verdict ; but here the word " maliciously" also was omitted. In Ellis v. TJiilman, 3 Call, 3, " without any just cause," was decided to be insufficient on error, though " of his mere malice," was alleged ; and in Young v. Gregorie, Id. 446, "without any legal or justifiable cause," was adjudged insufficient; and in both of these cases it was said that " want of probable cause," being the gist of the action, must be alleged in the declaration. In Davis v. Gloiigh, 8 New Hamp- shire, 157, the omission to state that there was no probable cause beyond a certain amount, where there had been an arrest for more, was held bad on special demurrer. It is said also to have been decided in Maddox v. McGinnis, 7 (1) Per BuUer, J., in Morgan v. Hughes, 2 Term, 225, 231 ; Willans v. Taylor, 6 Bingham, 183, 186; per Holroyd, J., in Nicholson v, Coghill, 4 Earnewall & Cresswell, 21, 2.'? ; MusgrovQ V. Newell, 1 Meeson & Welsby, 582, 687; Munna v. Dupont et al. ; Wilmarth u. Mountfort et al., 4 Washington, 80, 82; Murray i>. Long, 1 Wendell, 140 ; Foshay t). Ferguson, 2 Denio, 617; Wills II. Noyes, 12 Pickering, 324, 326 ; Wilder v. Holden, 24 Id. 8, 11 ; Stone v. Crocker, Id. 81, 83 ; Ulmer v. Leland, 1 Greenleaf, 135, 137; Plummer v. Noble, 6 Id. 285, 288; Lyon t;. Pox, 2 Browne, 67, 69; Winebiddle o. Porterfield, 9 Barr, 137; Turner v. Walker, 3 Gill & Johnson, 378: Adams v. Lesher, 3 Blackford, 241, 244; Scott v. Mortsinger, 2 Id. 454, 455 ; Yocum V. Polly, 1 B. Monroe, 358 ; Wood v. Wier &, Sayro, 5 Id. 504 ; Chandler v. McPherson et al., 11 Alabama, 916, 919 ; Williams v. Vanmeter, 8 Missouri, 339, 342 ; Leidig v. Rawson, 1 Soammon, 273; Johnston v. Martin, 3 Murphy, 248; Johnson v. Chambers, 10 Iredell, 287, 292 ; Murray v. McLane, 5 Hall's Law J. 514. It is necessary that malice should be expressly alleged in the declaration : Saxon v. Castle, 6 Adolphus & Ellis, 652; see also Page v. Wiple, 3 East, 314, and Vanduzor v. Linderman, 10 Johnson, 106. (2) Jones v. Gwynn, 10 Modern, 214; See also Sterling ti. Adams, 3 Day, 411, 432 ; the omission at least is cured by verdict ; Weinberger i'. Shelly, 6 Watts & Sergeant, 336, 342. See also Griffith f. Ogle, 1 Binney, 172, 174. MUNNS V. DUPONT ET AL. 213 Monroe, 371, that it is not enough to say in the declaration "falsely and mali- ciously," without some of the words indicating want of probable cause. The definition of probable cause, in a case of criminal prosecution, given by Judge Washington in the principal case, viz. — "a reasonable ground of suspi- cion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged ;" is one of the best ever given, and has been frequently applied. (1) " There must be a reasonable cause," said Tindal, C. J-,(2) " such as would operate on the mind of a discreet man ; there must also be a probable cause — such as would operate on the mind of a reasonable man ; at all events, such as would operate on the mind of the party making the charge : otherwise there is no probable cause for him." In another quarter, it is said that " any- thing which will create in the mind of a reasonable man the belief that a felony existed, and that the party charged was in any way concerned in it, is probable cause. "(3) "Probable cause, in general," it was said, in another court, "may be understood to be such conduct on the part of the accused, as may induce the court to infer that the prosecution was undertaken from public motives;"(4) [" A state of facts" said Shaw, C. J., in a third court,(5) " as would lead a man of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person is guilty."] The question of probable cause does not turn upon the actual innocence or guilt of the accused, but upon the prosecu- tor's belief of it at the time, upon reasonable grounds :(6) " however innocent the plaintiff may have been, it is enough for the defendant to show that he had reasonable grounds for believing him guilty at the time the charge was made:" (7) and the question of probable cause rests only on those facts and circumstances which were known to the prosecutor at the time the prosecution was begun, and not upon any which afterwards came to his knowledge. (8) In one of the cases, justifiable probable cause is said to be "a deceptive appearance of guilt, arising from facts and circumstances misapprehended or misunderstood so far as to produce belief," and to depend not on facts, but on the belief of them :(9) but still, the belief must be upon reasonable grounds: and mere belief occasioned by the prosecutor's own negligence or want of proper investi- gation or reflection, would not be a justification ;( 10) and, therefore, probable cause is justly defined in Travis v. Smith, 1 Barr, 234, 237, as "reasonable ground for belief" On this subject, different courts have fallen into error on the right hand and on the left. Some of them have held that probable cause (1) See Wilmarth v. Mountfort et al., 4 Washington, 82 ; Foshny v. Pergusson, 2 Denio, 617, 619; Hall v. Suydara, 6 Barbour's S. Ct., 84, 86; Cabiness v. Martin, 3 Devereux, 454; Raul- ston V. Jackson, 1 Sneed, 129. (2) Broad v. Ham, 5 Bingham's N. C, 722, 725. (3) Braveboy v. Coekfield, 2 M'Mullan, 270, 274. See, also, Sims v. M'Lendon, 3 Strobhart, 567, 560. (4) Ulmer v. Leland, 1 Greenleaf, 135 ; Thompson v. Mussey, 3 Id. 305, 311. (5) Bacon v. Towne, 4 Gushing, 238-9. (6) Burlingame v. Burlingame, 8 Cowen, 141 ; French v. Small et al., 4 Vermont, 363 ; Jacks V. Stimpson, 13 Illinois, 701. (7) Fosbay v. Fergusson, 2 Denio, 617, 619. (%) Swaim t>. Stafford, 3 Iredell's Law, 289; 4 Id. 392. (9) Seibert v. Price, 5 Wafts & Sergeant, 438. (10) Merriam v. Mitchell, 13 Maine, 439. 214 MALICIOUS PROSECUTION. depends on the fact, whether there was or was not reasonable ground for pro- secuting, and not upon the prosecutor's knowledge or belief of the fact;(l) yet it is certain, that if probable cause really existed, but the prosecutor did not believe the party was guilty, or knew that he was not guilty, there was no pro- bable cause as to him; (2) and the true question therefore is, "Whether he had probable cause upon the existing facts known to him." (3) Others would seem to have fallen into the antagonist error of holding that it depended merely on belief, and not on the causes or ground of belief; as in Chandkr v. M'Pherson, et al, 11 Alabama, 916. [However, this case is explained and reduced into something much nearer law in later cases in the same state, if not entirely overruled. (4) Certainly mere belief is not enough : for] this would reduce probable cause to a mere question of the fad of belief, and break up the rule that it is a question of law for the court. There is no doubt that actual belief or suspicion, and reasonable ground for it, must both enter into a justification of the defendant; the latter is that part of the question which be- longs exclusively to the court, and the former is the consideration of bona fides in acting upon it, or of the connexion between the probable cause and the party's conduct, which must be decided by the jury. The principle seems to be accurately stated in Rauhton v. Jackson, 1 Snced, 132, and also in Paris v. Starke, 3 B. Monroe, 4, 6 : " The law," says the last case, " protects the prose- cutor if he have reasonable or probable cause for the prosecution, that is, if he have such ground as would induce a man of ordinary prudence and discretion, to believe in the guilt, and to expect the conviction of the person suspected, and if he acts in good faith on such belief and expectation. The question is not whether the plaintiff was actually guilty, but whether the defendant had rea- sonable ground, from the facts known to him, and the communications made to him, to believe, and did actually believe, that the plaintiff was guilty." "Pro- bable cause," says the court in Hall v. Hawkins, 5 Humphreys, 357, 359, "is the existence of such facts and circumstances as would excite in a reasonable mind the belief that the person charged was guilty of the crime for which he was prosecuted ; that is, acting upon the facts within the knowledge of the pro- secutor, if a reasonable man would believe the party guilty of the crime charged, there would exist probable cause for the prosecution. It is not sufficient that the party really believed that a crime had been committed ; when, in truth, the facts within his knowledge constituted no crime." " Good faith merely," said the court, in Hall v. Svydani, 6 Barbour's S. Ct., 84, 89, "is not sufiicient to protect the defendant from liability. There must be a reasonable ground of suspicion, &c. Good faith merely may be based on mere conjecture, on unfounded suspicion — supported by no circumstances." " The mere belief oi the prosecutor," said the court in Winehiddle v. Porter- field, 9 Barr, 137, (and the same point was decided in Lawrence v. Lanning, 4 (Porter's) Indiana, 196, and in Jacks v. Stimpson, 13 Illinois, 701,) "is no evidence of probable cause." " How," said the court in the first case, " are you (1) Mowry t>. Miller, 3 Leigh, 561 ; Hickman ti. Griffin, 6 Missouri, 37, 42 ; Adams ii.Lesher, 3 Blackford, 241, 245. (2) Bell V. Pearoy, 5 Iredell's Law, 83; Delegal «-. Highley, 3 Bingham's N. C, 950, 959; Haddrick v. Hislop, 12 Q. B. 267, 274. (3) Wills i>. Noyes, 12 Pickering, 324, 326. (4) Ewing V. Sanford, 19 Alabama, 605; S. C. 21 Id. 164; Long v, Rogers, 19 Id. 336. MUNNS V. DUPONT ET AL. 215 to test the sincerity of a professed belief, or know that it is not the secret work of a heart to cover malice ? There must be some circumstances which would authorize a reasonable man to entertain a belief. It need not be legal evidence that would be suf&cient to convict; and hence it is not to be put to the jury as a question of guilt or innocence, but as a question whether the prosecutor had reasonable and probable cause to believe the defendant guilty. And if it can be fairly inferred from the circumstances of the case, that the prosecutor was actuated by an honest and fair intent to bring a suspected culprit to justice, on grounds sufficient to authorize the belief of a cautious man, it will remove all grounds for a just inference of malice, and thus protect the defendant; but his mere professed belief will not " The presumption of law being, that every public prosecution is founded on probable cause, the burden of showing want of it is, in the first instance, on the plaintiff; and there must be some evidence of the absence of probable cause, before the defendant can be called on to justify his conduct; but as this is a negative, slight evidence will generally be sufficient.(l) If a party lays all the facts of the case fairly before counsel, of competency and integrity, before beginning proceedings, and acts bona fide upon the opinion given by that counsel, however erroneous that opinion may be, he is not liable to this action ; " he is not the insurer of the lawyer," but if he misrepresents the case, or if he does not act bona fide under the advice he has received, and does not him- self believe that there is a cause of prosecution or action, he is not protected, and the bona fides of his conduct is a question of fact for the jury. (2) A defendant cannot excuse himself by showing that he consulted with an unpro- fessional person, and followed his advice. (3), In an action for a criminal pro- secution, the fact that the plaintiff's character was suspicious, would not of itself be a sufficient justification ;(4) but if other circumstances of suspicion are shown, the bad character of the plaintiff may be given in evidence, because with them it may cause a sufficient cause for the proceeding. (5) In the case of a criminal prosecution, a discharge by the examining magistrate, or a rejec- tion of the bill by the grand jury, is prima facie evidence of want of probable cause, and it is for the defendant to rebut this inference by contrary proof; (6) (1) Incledon v. Berry, 1 Campbell, 202, n. ; Willana v. Taylor, 6 Bingham, 18.S, 187; S. C. on Error, 2 Barnewall & Adolphus, 857 ; Cotton v. James, 1 Id. 128, 133 ; M'Cormick v. Sisson, 7 Cowen, 715 ; Gorton „. De Angelis, 6 Wendell, 418, 420 ; Stone v. Crocker, 24 Pickering, 81, 84. (2) Snow V. Allen, 1 Starkie, 502 ; Bavenga v. Mackintosh, 2 Barnewall & Cresswell, 693 ; Hewlett II. Cruchley, 5 Taunton, 277; Hall v. Suydam, 6 Barbour's S. Ct., 84, 88; Blunt u. Lit- tle, 3 Mason, 102, 105; Wills v. Noyes, 12 Pickering, 324; Wilder «. Holden, 24 Id. 8, 11 ; Stone V. Swift, 4 Id. 389 ; Stevens v. Fassett, 27 Maine, 267, 283 ; Turner v. Walker, 3 Gill &, Johnson, 378 ; Hall v. Hawkins, 5 Humphreys, 357, 369 ; Sommer u. Wilt, 4 Sergeant & Rawle, 19 ; Hall v. Smith, 7 Phila. Legal Intelligencer, 7 ; Walter i>. Sample, 25 Penna. State ; Wood „. Weir & Sayre, 6 B. Monroe, 544, 551 : Chandler v. M'Pherson, 11 Alabama, 916, 919; Hill 17. Ward, 13 Id. 311, 313 ; Leaird v. Davis, 17 Id. 27 ; see, however, to the contrary, CoUard v. Gay, 1 Texas, 494. (3) Beal o. Robeson, 8 Iredell, 276. (4) Newsam ». Carr, 2 Starkie, 69; and see Gregory v. Thomas, 2 Bibb, 286 ; (5) Rodriguez v. Tadmire, 2 Espinasse, 720 ; Miller v. Brown, 3 Missouri, 127, 132 ; Bostick II. Rutherford, 4 Hawks, 83, 88. (6) Per Hokoyd, J., in Nicholson v. Coghill, 6 Howling & Byland, 12, 14; S. C, 4 Barne- 216 MALICIOUS PROSECUTION". but a mere acquittal on trial would not be;(l) though, if full and fair, it is entitled to great consideration. (2) An entry of nolle pros, by the prosecuting attorney is not suiEeient of itself to make out a prima facie ease for the plain- tiff ;(S) nor is the mere fact of the plaintiff's discharge for want of prosecu- tion ;(i) but where the defendant had presented two bills to the grand jury, yet did not himself appear before them, and the bills were ignored, and he then presented a third, which on his own oath was found, and this was kept pending three years, and upon its being brought to trial by the plaintiff, the defendant declined appearing as a witness, though he was in court and called on, and the plaintiff was acquitted ; this was decided to bo sufficient evidence of want of probable cause. (5) The defendant has a right to show, as ground of probable cause, what evidence was given on the prosecution, even though it was given by himself,(6) [or by his wife,(7) and if evidence touching his character was given, that is admissible also. (8) " The evidence may not in all oases be conclusive of probable cause, because the party might know that the evidence was untrue, or that other evidence existed which would give an entirely differ- ent aspect to the case. But it is admissible as conducing to prove the issue, and may be received in connection with the other evidence in the case.'VS) This probably is as the true view, but it seems not to be recognized in Indiana, where, citing Richards v. Foulke, 3 Ohio, 52, and Burr v. Place, 4 Wendell, 591, the court says that the question of malice and probable cause is to be determined by what might be shown on the trial of the action for malicious prosecution, "not by what was shown on the prosecution alleged to have been malicious and without probable cause." No doubt, if the evidence of malice and want of probable cause was to be confined to what was shown on the pro- secution alleged to be malicious, the observation of the Indiana court would be right. But it is not to be so confined : and therefore perhaps is wrong.] In some Missouri cases, the permission of the defendant to prove what he swore to is limited to the instances in which there was no other witness of the fact sworn to than himself (10) On the other hand, the committing of the plaintiff after hearing by the examining magistrate, or the finding of the bill by the grand jury, even though the person be afterwards acquitted or discharged, is prima wall & Crcsswell, 21, 24; Johnson v. Martin, 3 Murphey, 248; Plummer v. Gheen, 3 Hawks, 6(i, 68 ; Johnson v. Chambers, 10 Iredell, 287, 292; Bostick v. Rutherford, 4 Id. 83, 87 (but see M'Rae c. O'Neal, 2 Devereux, 166, 169); Williams v. Norwood, 2 Terger, 829,336. (1) Adams v. Lisher, 3 Blackford. 445; Garrard v. Willet, 4 J. J. Marshall, 628, 630; Wil- liams V. Vanmcter, 8 Missouri, 339, 342 ; Stone v. Crocker, 24 Pickering, 81, 88 ; Scott v. Simp- son, 1 Sandford, 605. (2) Goodrich v. AVarner, 21 Connecticut, 432. (3) Tooum V. Polly, 1 B. Monroe, 368, 359. (4) Pureell v. Macnamara, 9 East, 361 ; S. C, 1 Campbell, 199, 201 ; Wallis v. Alpine, Id., 204, note; Braveboy v. Cookfield, 2 M'MuUan, 270; see also Pulmer v. Harmon, 3 Strob- hart, 576. (5) WiUans v, Taylor, 6 Bingham, 183 ; affirmed on error in 2 BarnewaU A Adolphus, 867. (6) M'Mahan ». Armstrong, 2 Stewart A Porter, 151. (7) Gardner v. Randolph, 18 Alabama, 686. (8) Gooderich v. Warner, 21 Connecticut. 432. (9) Gooderich v. Warner, 21 Connecticut, 441. (10) Hays v. Waller, 2 Missouri, 222 ; Hickman v. Griffin, 6 Id. 37, 41 ; Riney i. Vanlanding- ham, 9 Id. 816; see also, McRae v. O'Neal, 2 Devereux, 166, 171. MUNNS V. DUPONT ET AL. 217 facie evidence of probable cause, but may be rebutted by evidence ;(1) and it would not be suflScient if such finding was on the evidence of the defendant. (2) A conviction in the court where the indictment was tried, has been said to be conclusive evidence against the plaintiff;(3) and this, even, whore on appeal to a higher court he was acquitted; (4) but this seems to be pushed too far: the true principle appears to be, that a verdict of guilty is strong prima fwne evidence, but capable of being rebutted, by showing that it was obtained exclu- sively, or mainly, by the false swearing of the defendant, or by other corrupt or undue means; (5) the North Carolina courts, however, go so far as to deny any remedy by action for corruptly and maliciously prosecuting a party, and procuring a conviction; (6) which would be a reproach to the law, and certainly is wholly uncalled for by the doctrine of estoppel. In Smith v. Macdonald, 3 Espinasse, 7, Lord Kenyon said, that if the evidence on the indictment was such as to make the jury pause, he would hold it probable cause ; but this, of course, must be understood of their doubting on the evidence, where it is legal, and has no reference to the cases where the evidence is afterwards shown to be corrupt; see Tompson v. Massey, 3 Greenleaf, 305. In like manner, in case of a malicious civil suit, the voluntary discontinuance of the former suit is sufficient prima facie evidence of want of probable cause and of malice ;(7) but is not conclusive; (8) the mere suffering judgment of non pros, has been held not to be sufficient evidence to sustain the action; (9) but it may be aided by other evidence; (10) a verdict and judgment against the plaintiff, unreversed and not set aside, have, in two cases, been decided to be conclusive evidence of probable cause ;(11) but it seems they would not be if obtained by undue means ; Burt v. Place, 4 Wendell, 491 ; Gorton v. De Angelis, 6 Id. 418 ; but this would have to be alleged in the plaintiff's declaration. (12) [However, the Supreme Court of Massachusetts held, in Bacon v. Toivne, 4 Gushing, 236, and rightly, perhaps, that it is " not competent, with a view to avoid the effect or impair the weight of a judgment rendered by a court or (1) Graham v. Noble, 13 Sergeant & Rawle, 233, 235; Brown v. GrifBn, Cheves's Law, 32; Braveboy r. Cockfleld, 2 M'Mullan, 270 ; Garrard v. Willet, 4 J. J. Marshall, 628, 631 ; Mad- dox V. Jackson, 4 Manford, 462; Frowman v. Smith and wife, Littell's Sel. Ca. 7; CoUard v. Gay, 1 Te.^as, 494. (2) Kerr v. Workman, Addison, 270. (3) Griffis V. Sellers, 2 Devereux & Battle, 492; S. C.,4 Id. 176; and see Mellor v. Baddely, S. C. & M. 675. (4) Reynolds «. Kennedy, 1 Wilson, 232; Whitney v. Peckham, 15 Massachusetts, 243. (5) Witham d. Gowan, 14 Maine, 362; Payson v. Caswell, 22 Id. 212, 216. (6) Williams v. Woodhonse, 3 Devereux, 257. (7) Nicholson v. Coghill, 6 Howling & Ryland, 12, 14 ; S. C, 4 Barnewall & Cresswell, 21, 23 ; Webb v. Hall, 3 Carrington k Payne, 488 ; Burhans v. Sandford, 19 Wendell, 417. (8) Bristow v. Heywood, 1 Starkie, 48. (9) Sinclair I'. Eldred, 4. Taunton, 8 ; Purton ». Honnor,! Bosanquet 4 Puller, 205 ; Gorton ■V. De Angelis, 6 Wendell, 418, 420. (10) Norrish v. Richards, 3 Adolphus A Ellis, 733, 737. ' (11) Herman v. Brookerhoff, 8 Watts, 240: Jones v. Kirksey, 10 Alabama, 839; and see GriflSs V. Sellers, 4 Devereux v. Battle, 174; Whitley v. Peckham, 15 Mass., 243 ; Reynolds v. Kennedy, 1 Wilson, 232 ; Goodrich v. Warner, 21 Connect., 441; and Mellor v. Baddely, 6 Car. & Payne, [25 B. C. L.,] 444. (12) Spring & Stepp v. Besore, 12 B. Monroe, 555. 218 MALICIOUS PEOSECUTIOK. magistrate acting judicially within his jurisdiction, to prove partiality or un- fairness in the particular case. A party," the court observed, " actually con- victed by a jury, might, upon similar ground, contend that such conviction ought not to stand as evidence of guilt, or even of probable cause ; and that records of judicial proceedings have a certain intrinsic value and effect, ascer- tained by general laws, to which it is important to adhere." As a necessity of these differences of opinion as to the right to impeach a judicial decision, the courts which hold them, respectively, find a compensating rule which, in the result, brings things to about the same point. Eor the courts which hold that you may impeach the judgment, hold it, when unimpeached, conclusive evidence of malice and want of probable cause ;(1) while those which hold that you cannot impeach it, seem to hold the judgment but as prima facie, and not conclusive evidence;"] (2) nor would an unreserved judgment be conclusive evidence if obtained without notice to the defendant, as in case of an attach- ment of his property in his absence. (3) Although, as presently to be stated, want of probable cause is sufficient evi- dence of malice, the most express malice is not a sufficient ground to infer want of probable cause; Musgrove v. Newell, 1 Meeson & Welsby, 582, 584, 587: Panghurn v Bull, 1 Wendell, 345 ; Murray v. Long, Id. 140 : Blasten v. Deyo, 2 Id. 424, 427 ; Ulmer v. Leland, 1 Greenleaf, 135, 137 ; Marshall v. Maddoch, Littell's Sel. Ca. 107 ; WilUams v. Tanmeter, 8 Missouri, 339, 342 ; Gliandler Y. M' Fear son, 11 Alabama, 916, 919; PhimmerY. Gheen, 3 Hawks, 66, 68 ; Horn v. Boon, 3 Strobhart, 307. In accordance with the principle laid down in Johnstone v. Sutton, it is universally agreed, that the question of probable cause is a mixed one of fact and law, involving two distinct consider- ations, to be adjudicated by two different tribunals at the same time, the suffi- ciency of the circumstances to constitute probable cause being a mere question of law for the court, and the evidence of the circumstances being for the con- sideration of the jury; Broad v. Ham, 5 Bingham's N. C. 722, 725; Muiins V. Duponi et al. ; Wilmarth v. Mountford et al. ; Murray v. M Lane, 5 Hall's Law Jour. 514 ; M' C'ormick v. Sutton, 7 Cowen, 715, 717; Pangburn v. Bv.U, 1 Wendell, 345 ; Wilder v. Holden, 24 Pickering, 8, 11 ; Page v. fjushing, 38, Maine, 526 ; Bidheley v. Smith, 2 Duer, 262 ; Carpenter v. Sheldon, 5 Sand- ford, 77, Bulkeley v. Keteltas, 2 Selden, 386 ; Wengert v. Beashore, 1 Pennsyl- vania, 232 ; Miller v. Brown, 3 Missouri, 127, 132 ; Thomas v. Rouse, 2 Bre- vard, 75 ; Nash v. Orr, 3 Id. 94. If there is any fact or motive in dispute, the proper course is for the judge to leave the question of probable cause to the jury, with instructions upon the law as applied to the several phases which the facts may assume, that is to say, with directions, that if they find in one way, there was no probable cause, and their verdict must be for the plaintiff, but if they find in another, there was probable cause, and the verdict must be the other way; (4) and it is error if the court leave it to the jury to say, on (1) See afc least Spring & Stepp v. Bensore, 12 B. Monroe, 654. (2) Bacon v. Towne, 4 Cashing, 236. (3) Bump v. Betts, 19 Wendell, 421. (4) James v. Phelps, 3 Perry A Davison, 231 ; M'Donald v. Eooke, 2 Bingham's N. C, 217; WillansK. Taylor, 6 Bingham, 183, 186; S. C, in error, 2 Barnowall A Adolphus, 845, 858; Panton v. Williams, 2 Queen's Bench, 169, 192; Hasten v. Deyo, 2 Wendell, 424, 430; Baldwin ■u. Weed, 17 Id., 224, 227 ; Hall v. Suydam, 6 Barbour's S. Ct., 84, 89 ; Bulkeley v. Keteltas, 2 Selden, 387 ; Weinberger v. Shelly, 6 Watts & Sergeant, 336, 342 ; French v. Smith et al., 4 MUNNS V. DUPONT ET AL. 219 the evidence, whether there was, or was not probable cause.(l) The court cannot assume the decision of the question of probable cause, unless the facts are undisputed ; (2) but if there is no fact in dispute, [as if there be no testi- mony that the accused committed the crime, or that the prosecutor had been informed or knew of any fact inducing a belief that he had,] or if the evidence consists of the direct testimony of an unimpeached witness, such that if the jury found against it, the court would order a new trial, — or if, admitting all the facts in evidence on one side or the other, there still is, or is not probable cause, — it is proper for the court to decide the question of probable cause. (3) If want of probable cause be made out, it raises a natural presumption of knowledge of that want, on the part of the defendant, as is intimated in John- stone V. Sutton; Michellv. Williams, 11 Meeson & Welsby, 205, 211; Flum- mer v. Gheen, 3 Hawks, 66, 68 ; but if such facts as would form probable cause exist, it may be doubtful, upon the evidence, whether the knowledge of those facts existed in the person's mind at the time, and was really the motive and inducement to the prosecution, or, if known, whether they were really believed and acted upon hona fide, and this will draw the whole question to the jury under proper instructions as to the law. (4) [No matter how far a man may be impelled by malice in prosecuting another on a criminal charge, provided he can show probable cause, the law from motives of public policy will hold him harmless.] Probable cause, therefore, is a com- plete bar to this action ;(5) and it may either be shown under the general issue, or may be specially pleaded ; and if pleaded, the facts in which it consists, must be distinctly set forth. (6) The truth of the facts may, also, be pleaded, and will constitute a justification. (7) Malice, implied or express, must, also, be established ; but the word is to be understood in its legal sense, in which it appears generally to be used as the oppo- site of hona fides. " It is not necessary to prove malice in the ordinary sense of the word, — any improper or sinister motive will be sufficient;" per Tindal, Vermont, 363; White v. Fox, 1 Bibb, 369, 371 ; Williams ti. Norwood, 2 Yerger, 329; Paris v. Waddell, 1 M'Mullan, 358, 363 ; Leggett v. Blount, 2 Taylor, 123. (1) Travis v. Barr, 1 Barr, 234, 237; Ulmer v. Leiand, 1 Greenleaf, 135, 139; Plummer v. Gheen, .S Hawks, 66, 70. (2) Crabtree v. Horton, 4 Munford, 59. (3) Blackford v. Dod, 2 Barnewall & Adolphus, 179 ; Bayis v. Hardy, 6 Barnewall & Cress- well, 225 ; Stone V. Crocker, 24 Pickering, 81, 85; Masten v. Deyo, 2 Wendell, 424,428; Gorton v. De Angelis, 6 Id., 418, 421 ; Weaver v. Townsend, 14 Id., 192 ; Baldwin v. Weed, 17 Id., 224, 227 ; Stevens v. La Coeur, 10 Barbour, 63 ; Varrell v. Holmes, 4 Greenleaf, 168 ; Taylor V. Godfrey, 36 Maine, 625; Williams v. Norwood, 2 Yerger, 329, 332; Lipford v. M'CoUam, 1 Hill's So. Car., 82; Horn „. Boon, 3 Strobhart, 307, 310 ; Swaim v. Stafford, 3 Iredell's Law, 289. (4) Venafra v. Johnson, 10 Bingham, 301; Delegal v. Highley, 3 Bingham's N. C, 950, 959 ; Broad v. Ham, 5 Id., 722, 725 ; Stone v. Swift, 4 Pickering, 389 ; Turner v. Walker, 3 Gill & Johnson, 378. (6) Whitehurst v. Ward. (6) Legrande v. Page, 7 Monroe, 401 ; Garrard v. Willets, 4 J. J. Marshall, 628 ; Brown v. Connelly, 5 Blackford, 391; Horton v. Smelser, Id., 429; Ewing v. Sandford, 21 Alab., 162. (7) Morris v. Corson, 7 Cowen, 281 ; Adams v. Lesher, 3 Blackford, 241, 245; Bell v. Pearcy, 5 Iredell's Law, 83, 86. 220 MALICIOUS PROSECUTION. C. J- ;(1) " Malice may be inferred ; malice, in law, means an act done wrongfully, and without reasonable and probable cause, and not, as in common parlance, an act dictated by angry feeling, or vindictive motives ;" per Best, C. J. (2) [" In a legal sense," says Howard, J. ,(3) giving this opinion of the Supreme Court of Maine, "malice has a meaning different from its popular signification. Acts wilfully and designedly done, which are unlawful, are malicious in respect to those to whom they are injurious. One may prosecute a laudable purpose with an honest intention, but in such a manner, and in such disregard of the rights of others as to render his acts unlawful. Prosecutions may be instituted and pursued with pure motives, to suppress crimes, but so regardless of estab- lished forms of law, and of judicial proceedings, as to render the transactions illegal and malicious. The general motive may be upright and commendable, while the particular acts in reference to others may be malicious, in the legal acceptation of the term. So that an act may be malicious in a legal sense, which is not prompted or characterized by malevolence or corrupt design."] Malice is, in all cases, a question of fact for the jury ; but want of probable cause is suf&cient to authorize them to presume malice, without express evi- dence; (4) still, the inference must be drawn by the jury, and cannot be drawn by the court. (5) Accordingly, in an action for arrest under civil process, if no debt was due, but the defendant honestly believed that there was, and acted in good faith, under reasonable mis.take, as, if the debt had been paid without his knowledge to his agent in another place, he could not be made liable in this action; the presumption of malice arising from a groundless suit, may, there- fore, be rebutted by circumstances showing a fair and legitimate purpose, and the honest pursuit of a claim believed to be just. (6) And so in regard to a criminal proceeding, if the facts fall short of the legal measure of probable cause, but the prosecutor can show the honesty of his error, and it is apparent from the friendly relations of the parties and the prosecutor's reluctance to (1) Stockley v. I-Iornidge, 8 Carrington & Payne, 11, IB. (2) Jones v. NichoUs, 3 Moore & Payne, 12. (S) Page V. Cashing, 38 Maine, 626. (4) Parrot fj. Fisliwiolj, 9 East, 362, note; Musgrovc v. Newell, 1 Meeson & Welsby, 582, 587; Munns v. Dupont et al., 3 Washington, 32, 37 ; Wilmarth v. Mountford et al., 4 Id., 80, 82; Sommer v. Wilt, 4 Sergeant & Rawle, 19, 23; Lyon v. Pox, 2 Brown, App. 67, 69; Pang- burn V. Bull, 1 Wendell, 345; Murray v. Long, Id., 140; Hasten v. Deyo, 2 Id., 424, 42.5, 427; Burhans u. Sandford, 19 Id., 417; Savage v. Brewer, 16 Pickering, 453, 456; Stone v. Crocker, 24 Id., 81, 87; Ulmer v. Leland, 1 Greenleaf, 135, 137; Merriam v. Mitchell, 13 Maine, 439, 458; Page i>. Gushing, 38 Maine, 626; Turner v. Walker, 3 Gill &, Johnson, 378; Marshall e. Maddock, Littell's Sel. Ca., 107; Carries v. Meldrum, 1 Marshall's Kentucky, 224; Garrard v. Willet, 4 J. J. Marshall, 628, 629 ; Holburn v. Neal, 4 Dana, 120; Williams v. Vanmeter, 8 Missouri, 339, 342; Chandler v. M'Pherson, 11 Alabama, 916, 919; Plummer^ti. Gheen, 3 Hawks, 66. (5) Mitchell ti. Jenkins, 5 Barnowall & Adolphus, 588; Newell v. Downs, 8 Blackford, 623 624; Johnson v. Chambers, 10 Iredell, 287, 292. (6) See Scheibel v. Fairbairn, 1 Bosanquet &, Puller, 388; Gibson v. Chaters, 2 Id., 129; Page V. Wiple, 3 Bast, 314; George v. Radford, 3 Carrington & Payne, 464, 406; Jackson v. Burleigh, 3 Espinasse, 34; Silversides i. Bowlby, 1 Moore, 92, 94; Spencer v. Jacob and another, Moody & Malkin, 180; Wood v. Weir & Sayre, 5 B. Monroe, 604; Bell v. Graham, 1 Nott & M'Cord, 278, 283; Ray v. Law, Petera's C. C. 207, 210. MUNNS V. DUPONT ET A L. 221 take any steps, that he acted without any malice, and only from a sense of sup- posed duty, he would not be answerable in this action. (1) "What shall amount to such a combination of malice and want of probable cause," said Tindal, C. J., " is so much a matter of fact in each individual case, as to render it impossible to lay down any general rule on the subject ; but there ought to be enough to satisfy a reasonable man, that the accuser had no ground for pro- ceeding, but his desire to injure the accused. (2) In an action for maliciously holding to bail, the plaintiiF may recover the extra costs beyond the taxed costs, that is to say, the costs between client and attorney, and a reasonable compensation for trouble. (3) There is no doubt of the power of courts to grant a new trial for excessive damages, in all these actions of tort; but it is rarely done, unless the jury appear to have mistaken the legal measure of damage, or to have been influenced by corruption, parti- ality, or prejudice. (4) In all action.s for malicious prosecution or suit, whether by indictment, arrest, attachment, or suing out a commission of bankruptcy, it must be alleged in the declaration, and proved, that the proceedings are legally at an end; (5) [and so strictly is the rule observed that where, in the prosecution or action complained of, the judgment in the inferior court has been against the party now complain- ing, but has been reversed on appeal, with a mandate to the court below to enter a proper judgment, this mandate must be completely carried out before the suit for malicious prosecution can be sustained] (6) ; and it must be shown hoio they were ended, and an omission to show how they were ended, would be specially demurrable ;(7) though the omission to allege either the mode or the fact of termination, would be cured by verdict; (8) and it must be proved, that they were terminated precisely in the way alleged in the declaration, or it will be ground of nonsuit; (9) therefore, if it is alleged, that the party was "dis- charged," the averment would not be sustained by proof of an acquittal upon (1) Bell V. Pearcy, 5 Iredell's Law, 83, 86; Hall u. Hawking, 5 Humphreys, 367, 359. (2) "Willans v. Taylor, 6 Bingham, 183, 186. (3) Sandbaok v. Thomas, 2 Starkie, 306 ; Haddam v. Mills, 4 Carrington &, Payne, 486, 490 ; Gould V. Barratt, 2 Moody & Kobinson, 171. (4) Hewlett v. Cruchley, 5 Taunton, 277 ; Tompaon v. Massey, 3 Greenleaf, 305 ; Blunt v. Little, 3 Mason, 102, 106. (5) Fisher v. Bristow and others, 1 Douglas, 215; Morgan v. Hughes, 2 Term, 225, 231,232; Whitworth v. Hall, 2 Barnewall A Adolphus, 695 ; Norrish v. Eiohards, 3 Adolphus & Ellis, 733; Heywood v. CoUinge, 9 Id., 268, 273; Watkins v. Lee, 5 Meeson & Welsby, 270; Mellor V. Baddeley, 2 Crompton & Meeson, 675; Baoon v. Townsend, 6 Barbour's S. Ct., 426; Da-vis V. Clough, 8 New Hampshire, 157; Bacon v. Towne, 4 Gushing, 217; Benjamin v. Garee, Wright, 460; Heyward v. Cuthhert, 4 M'Cord, 354; Hardin v. Borders et al., 1 Iredell's Law, 143 ; Howell v. Edwards, 8 Id., 516. (6) Spring & Stepp v. Bensore, 12 Kentucky (B. Monroe), 553. (7) Parker v. Langley, 10 Modern, 145, 209 ; Webb v. Hill, 3 Carrington & Payne, 485, 487 ; Wilkinson v. Howel, 1 Moody & Malkin, 495 ; per Gaselee, J., in Brook v. C.rpenter, 3 Bing- ham, 297, 302 ; Thomas v. De Graffenreid, 2 Nott & M'Cord, 144, 146; Cole v. Hanks, 3 Monroe, 208; Teague v. Williams, 3 M'Cord, 461. (8) Skinner v. Gunton, 1 Saunders, 228; Weinberger v. Shelly, 6 Watts &, Sergeant, 336, 342; Young v. Gregorie, 3 Call, 446, 462; Cotton v. Wilson, Minor, 203. (9) Combe v. Capron, 1 Moody & Kobinson, 398; Good v. Bennett, 5 Price, 640; Feazle v. Simpson et al., 1 Scammon, 30. 222 MALICIOUS PROSECUTION. trial ;(1) or, if it be alleged that the party was " acquitted," without stating in what manner, no other mode of discharge than by verdict of " not guilty" can be given in evidence. (2) In fact, the whole judicial proceedings in the prosecution or suit should be set out in the declaration; (3) and the proof must be by the record, or a copy of it; (4) or by the papers themselves, which con- stitute the proceeding, in a court not of record ;(5) as to the plaintiff's right to have a copy of the indictment. (6) An action of conspiracy cannot be main- tained, unless there has been an acquittal by verdict upon a trial ; and the rea- son given is, that the writ of conspiracy is a formed writ, which cannot be departed from, and in The Register it contains that allegation ; but an action on the case is not tied down to any form, and any legal mode of discharge will be sufficient. (7) In case of a criminal prosecution, in some way or other, the proceeding must be legally at an end, that is, must be in such a condition that it cannot be re- vived, but the prosecutor must be put to a new proceeding. (8) A discharge by the justice before whom the charge was prosecuted ; (9) or at the sessions, no indictment having been preferred; (10) and an entry of nolle pros, on which the court render a judgment of discharge ;(11) or a verdict of 'not guilty,' without anj' judgment of discharge ;(12) is a sufficient termination to maintain this action ; but a mere entry of nolle pros, on the indictment, by the prose- cuting attorney, or the mere non-acting on the bill by the grand jury, or even their rejection of it, will not be sufficient, unless followed by a judgment or order of discharge ;(13) in short, whenever the termination is not by verdict, but by rejection of the bill, or nolle pros, or by arrest of judgment, a discharge by the court must be alleged, otherwise it does not appear, that the party may not still be proceeded against.(14) In an action for a malicious arrest, it is enough if the case is out of court by any other means than consent of parties : a rule to discontinue on payment of costs, and the actual payment of them,(15) (1) Law V. Franks, Cheves's Law, 9. (2) Morgan v. Hughes, 2 Term, 225, 232 ; Thomas v. De Graffenreid, 2 Nott & M'Cord, 144, 146; Hester v. Hagood, 2 Hill's So. Car., 195; Teague r. ■Williams, 3 M'Cord, 461. (3) Sitton V. Farr, Rice, 304; Good v. Bennett: and must be proved as laid; Hughes v. Ross, 1 Stewart & Porter, 258. (4) Sayles v. Briggs, 4 Metoalf, 421; Cole v. Hanks, 3 Monroe, 208. (5) Cooper v. Turrentine & Freeman, 17 Alabama, 13. (6) See Burton v. Hawkins, 2 Hill's So. Car., 674. (7) Smith V. Cranshaw, W. Jones, 93 ; Jones v. Gwynn, 10 Modern, 214, 219 ; Common- wealth I'. Wheeler, 2 Massachusetts, 172. (8) Clark v. Cleveland, 6 Hill, 345. (9) Long V. Rogers, 16 Alabama, 540, 546. (10) Shock V. M'Chesney, 4 Yeates, 507, 610. (11) Chapman v. Woods, 6 Blackford, 504. (12) Mills V. M'Coy, 4 Cowen, 406. (13) Bacon v. Towne, 4 Cashing, 217; Smith v. Shackford, 1 Nott & M'Cord, 36; Heyward V. Cuthbert, 4 M'Cord, 354; O'DriscolI v. M'Burney, 2 Nott & M'Cord, 64; Thomas v. Do Graffenreid, Id., 144, 146. (14) Teague v. Williams, 3 M'Cord, 461. (15) Bristow v. Haywood, 4 Campbell, 213, 214; Brandt ti. Peacock, 1 Barnewall A Creaswell, 649 ; a neglect to declare for a year; Pierce v. Street, 3 Barnewall & Adolphus, 397; Norrish V. Richards, 3 Adolphus & Ellis, 733. MUNNS V. DTJPONT ET A L. 223 is a sufficient termination. It appears, however, that any termination by con- sent will prevent an action being brought ;(1) it was held, that a termination by award upon a submission by consent to arbitrators, is a bar; but the reverse was decided in Pierce v. Thompson, 6 Pickering, 193, 196. It is said by Mr. Chitty to be a general rule, that the termination must have been in favour of the plaintiff; and this dictum is repeated in Gorton v. De Angelis, 6 Wendell, 418, 419 ; Feagh v. Simpson et al., 1 Scammon, 30 ; but there is no express autho- rity in the English cases for such a position, and its accuracy, as an inflexible rule, is doubtful. At all events, it would be satisfied by a termination in the plaintiff's favour, on appeal ;(2) and it would not apply where the plaintiff had bad no notice of the previous proceeding, as where it was an attachment sued out against his property in his absence. (3) [On the whole, therefore, three things are pre-requisites to maintaining the action for malicious prosecution. I. The prosecution must be ended. II. There must have been an acquittal or final discharge. III. The charge must be shown to have been made through malice and without reasonable or probable grounds to prove it true.] (4) The gist of the action above considered, is the putting of legal process in force, regularly, for the mere purpose of vexation, annoyance, or injury ; and the inconvenience or harm resulting, naturally or directly, from the suit or prosecution, is the legal damage upon which it is founded. [Where the case is clearly made out it is a case for " condign punishment in the way of damages ;" but the case should be so made out before damages are given at all, or " crimes would often go unpunished for want of prosecutors."] (5) There is another ac- tion, quite distinguishable from this ; it is the action for malicious abuse of civil process. It lies where capias is sued out for some collateral object of op- pression, as, to extort property illegally from the defendant; (6) or, where a second capias is sued out from motives merely vexatious, for the same cause of action, pending a former writ; (7) or, where a ca. sa. is sued out irregularly, a Ji. fa. being still out; (8) or, where, under a,Ji. fa. on a judgment on a bond with penalty, the plaintiff directs goods to be levied on and sold to the amount of the penalty, or in double the amount of the debt due on it. (9) In this action, it is not necessary to show, that the suit is terminated, nor to show want of probable cause of suit; but malice must be proved. (10) But want of probable cause would be evidence of malice. (11) An action on the case will lie, also, for prosecuting an attachment suit (1) Wilkinson v. Howel, 1 Moody & Malkin, 495 : and in Habershon v. Troby, Peake's Ad- ditional, 181 ; S. C, 3 Bspinasse, 33. (2) Burt V. Place, 4 Wendell, 591. (3) Bump V. Betts, 19 Wendell, 421. (4) Pharis v. Lambert, 1 Sneed, 232. (5) Raulston v. Jackson, 1 Sneed, 132, and see Long v. Roger, 21 Alab., 336. (6) Grainger v. Hill, 4 Bingham's N. C, 212. (7) Heywood v. CoUinge, 9 Adolphus & Ellis, 268; see also Pangburn v. Bull, 1 Wendell, 345. (8) Turner v. Walker, 3 Gill & Johnson, 378. (9) Sommer v. Wilt, 4 Sergeant & Rawle, 19. See, also, Baldwin v. Weed, 17 Wendell, 224, 227; Plumtaer v. Dennett, 6 Greenleaf, 421. (10) Lewis V. Morris, 2 Crompton & Meeson, 712, 721; Page v. Gushing, 38 Maine, 527. (11) See Prough t>. Bntriken, 1 Jones (Penna.), 82. 224 INFANCY. without authority, in the name of a third peraon ; and neither actual malice, nor want of probable cause, need be proved; though want of authority must. (1) [Besides the specific action for malicious prosecution, it appears that the plaintiff, if the facts of his case warrant it, may bring trespass for assault and false imprisonment, or for slander, and one suit is not a bar to the other. However, in an action for malicious prosecution, the plaintifiF may recover, not only for the unlawful arrest and imprisonment, and expenses of his defence, but also for the injury to his fame and reputation occasioned by the false accu. sation; but a recovery in that form of action is a bar to an action of slander, for the accusation upon which the malicious prosecution was founded. (2) But it would seem that evidence of the plaintifif's general bad reputation is admis- sible, both to rebut the proof of probable cause and in mitigation of dam- ages.(3) It has been decided in this country that an action for malicious prosecution will lie against a corporation. (4) The court, however, was not unanimous. The point has been mooted in England, but not decided.] (5) See ante p. 149. INFANCY. OP THE LEGAL CAPACITY OP INPANTS, AND THEIR LIABILITY EX CONTRACTU AND EX DELICTO. TUCKER BT AL. V. MOEELAND. In the Supreme Court of the United States. JANUARY TERM, 1836. [reported, 10 PETERS, 59-79.J Of the acts of an Infant which are voidable, and of those which are void; and of the means hy which his voidable acts may be avoided. Mr. Justice Story (6) delivered the opinion of the court. This is a writ of error to the circuit court for the county of Wash- ington, and District of Columbia. The original action was an ejectment brought by the plaintiff in error against the defendant in error ; and both parties claimed title (1) Bond V. Chapin, 8 Metcalf, 31. (2) Guest V. Warren, 10 Exch., 379 j Sheldon v. Carpenter, i Comstook, 578. (3) Bacon v. Towne, 4 Gushing, 219. (4) Goodspeed v. The E. H. Bank, 22 Connecticut, 643. (5) Stevens v. Midland Counties Railway, 10 Exch., 356. (6) The case being very fully stated in the opinion of the court, the reporter's statement has been omitted. TUCKER ET AL. V. MORELAND: VASSE Y. SMITH. 225 under Richard N. Barry. At the trial of the cause upon the general issue, it was admitted, that Richard N. Barry, being seized in fee of the premises sued for, on the first day of December, 1831, executed a deed thereof to Richard Wallach. The deed, after reciting that Barry and one Bing were indebted to Tucker and Thompson in the sum of three thousand two hundred and thirty-eight dollars, for which they had given their promissory note, payable in six months after date, to secure which the conveyance was to be made, conveyed the pre- mises to Wallach, in trust to sell the same in case the debt should remain unpaid ten days after the first day of December then next. The same were accordingly sold by Wallach, for default of payment of the note, on the 23d of February, 1833, and were bought at the sale by Tucker and Thompson, who received a deed of the same, on the 7th of March of the same year. It was admitted, that after the execution of the deed of Barry to Wallach, the former continued in possession of the premises until the 8th of February, 1833, when he executed a deed, including the same and other parcels of land, to his mother, Eliza G. Moreland, the defendant, in consideration (as recited in the deed) of the sum of one thousand one hundred and thirty-eight dollars and sixty-one cents, which he owed his mother ; for the recovery of which she had instituted a suit against him, and of ather sums advanced him, a particular account of which had not been kept, and of the further sum of five dollars. At the time of the sale of Wallach, the defendant gave public notice of her title to the premises, and she publicly claimed the same as her absolute right. The defendant further gave evidence at the trial, to prove that at the time of the execution of the deed by Barry to Wallach, he, Barry, was an infant under twenty- one years of age ; and at the time of the execution of the deed to the defendant, he was of the full age of twenty-one years. Upon this state of the evidence, the counsel for the defendant prayed the court to instruct the jury, that if upon the whole evidence given as aforesaid to the jury, they should believe the facts to be as stated afore- eaid, then the deed from the said Wallach to the plaintifis, did not con- vey to the plaintiffs any title, which would enable them to sustain the action. This instruction the court gave ; and this constitutes the exception now relied on by the plaintiff in error in his first bill of exceptions. Some criticism has been made upon the language, in which this instruction is couched. But, in substance, it raises the question, which has been so fully argued at the bar, as to the validity of the plaintiff's title to recover ; if Barry was an infant at the time of the execution of VOL. I. — 15 226 INFANCY. his deed to Wallach. If that deed was originally void, by reason of Barry's infancy, then the plaintiif, who must recover upon the strength of his own title, fails in that title. If, on the other hand, that deed was voidable only, and not void, and yet it has been avoided by the subsequent conveyance to the defendant by Barry ; then the same con- clusion follows. And these, accordingly, are the considerations, which are presented under the present instruction. In regard to the point, whether the deed of lands by an infant is void or voidable at common law, no inconsiderable diversity of opinion is to be found in the authorities. That some deeds or instruments under seal of an infant are void, and others voidable, and others valid and absolutely obligatory, is not doubted. Thus, a single bill under seal given by an infant for necessaries, is absolutely binding upon him ; a bond with a penalty for necessaries is void, as apparently to his preju- dice ; and a lease reserving rent is voidable only.(l) The difficulty is in ascertaining the true principle, upon which these distinctions depend. Lord Mansfield, in Zouch v. Parsons (3 Burr. 1804), said, that it was not settled, what is the true ground upon which an infant's deed is voidable only ; whether the solemnity of the instrument is sufficient, or it depends upon the semblance of benefit from the matter of the deed upon the face of it. Lord Mansfield, upon a full examination of the authorities on this occasion, came to the conclusion (in which the other judges of the court of King's Bench concurred) that it was the solem- nity of the instrument, and delivery by the infant himself, and not the semblance of benefit to him, that constituted the true line of distinction between void and voidable deeds of the infant. But he admitted, that there were respectable sayings the other way. The point was held by the court not necessary to the determination of that case ; because in that case the circumstances showed that there was a semblance of bene- fit sufficient to make the deed voidable only, upon the matter of the con- veyance. There can be little doubt, that the decision in Zouch v. Par- sons was perfectly correct ; for it was the case of an infant mortgagee, releasing by a lease and release his title to the premises, upon the pay- ment of the mortgage money by a second mortgagee, with the consent of the mortgagor. It was precisely such an act as the infant was bound to do ; and would have been compelled to do by a court of equity as a trustee of the mortgagor. And certainly it was for his (1) See Russell v. Lee, 1 Lev., 86; Fisher i'. Mowbray, 8 East. E.., 330 ; Eaylis v. Dineley, 3 M. & Selw., 470; Co. Litt., 172. TUCKER ET AL. V. MORELAND: VASSE V. SMITH. 227 interest to do, what a court of equity would by a suit have compelled him to do.(l) Upon this occasion, Lord Mansfield and the court approved of the law as laid down by Perkins (sect. 12), that " all such gifts, grunts, or deeds made by infants, which do not take effect by delivery of his hand are void. But all gifts, grants, or deeds made by infants by matter of deed or in writing, which do take eifect by delivery of his hand are voidable by himself, by his heirs, and by those who have his estate." And in Lord Mansfield's view, the words " which do take effect," are an essential part of the definition ; and exclude letters of attorney, or deeds, which delegate a mere power and convey no interest. (2) So that, according to Lord Mansfield's opinion, there is no difference between a feoffment and any deeds which convey an interest. In each case, if the infant makes a feoffment or delivers a deed in person, it takes effect by such delivery of his hand, and is voidable only. But if either be done by letter of attorney from the infant, it is void, for it does not take effect by a delivery of his hand. There are other authorities, however, which are at variance with this doctrine of Lord Mansfield, and which put a different interpretation upon the language of Perkins. According to the latter, the semblance of benefit to the infant or not, is the true ground of holding his deed void- able or void. That it makes no difference, whether the deed be delivered by his own hand or not ; but whether it be for his benefit or not. If the former, then it is voidable ; if the latter, then it is void. And that Perkins, in the passage above stated, in speaking of gifts and grants taking effect by the delivery of the infant's hand, did not refer to the delivery of the deed, but to the delivery of the thing granted ; as, for instance, in the case of a feoffment to a delivery of seisin by the infant personally ; and in case of chattels, by a delivery of the same by his own hand. This is the sense in which the doctrine of Perkins is laid down in Sheppard's Touchstone, 232. Of this latter opinion, also, are some other highly respectable text writers ;(3) and, perhaps, the weight of authority, antecedent to the decision in Zouch v. Parsons, inclined in the same way. Lord Chief Justice Eyre, in Keane v. Baycott (2 Hen. Black. (1) See V. Hancock, 17 Ves., 383 ; 1 Fonbl. Eq. B. 1, oh. 2, S. 5, and Notes ; Co. Litt., 172(a); Com. Dig. Infant, B. 5. (2) See Saunders v. Mann, 1 H. Black., 75. (3) See Preston on Conveyancing, 248 to 250; Com. Dig. Enfant, c. 2; Shep. Touch., 232, and Aoherly's note; Bac. Abridg. Infancy, I. 3; English Law Journal for 1804, p. 145; 8 Amer. Jurist, 327. But see 1 Powell on Mortg. by Coventry, note to p. 208 ; Zouch v. Parsons, 1 \V. Black., 575; Bllsley's notes,(/i) and(t;); Co. Litt., 61, 6, Harg. note, 331; Holmes v, Blogg, 8 Taunt., 508; 1 Fonbl. Eq., b. 1, ch. 11, s. 3, and notes {y) (z) (a) {b). 228 INFANCY. 515), alluded to this distinction in the following terms. After having corrected the generality of some expressions in Litt. s. 259, he added : " We have seen that some contracts of infants, even by deed, shall bind them ; some are merely void, namely, such as the court can pronounce to be their prejudice; others, and the most numerous class, of a more uncertain nature as to benefit or prejudice, or voidable only ; and it is in the election of the infant to afiirm them or not. In Roll. Abridg. title Enfants (1 Roll. Abridg. 728), and in Com. Dig. under the same title, instances are put of the three different kinds, of good, void, and voidable contracts. Where the contract is by deed, and not apparently to the prejudice of the infant, Comyns states it as a rule, that the infant cannot plead non est factum, but must plead his infancy. It is his deed ; but this is a mode of disaiBrming it. He, indeed, states the rule gene- rally ; but I limit it to that case, in order to reconcile the doctrine of void and voidable contracts." A doctrine of the same sort was held by the court in Thompson v. Leach, 3 Mod. 310 ; in Fisher v. Mowbray, 8 East, 330; and Baylis v. Dineley, 3 M. & Selw. 477. In the last two cases, the court held, that an infant cannot bind himself in a bond with a penalty, and especially to pay interest. In the case of Baylis v. Dine- ley, Lord Ellenborough said : " In the case of the infant lessor, that being a lease, rendering rent imported on the fac^ of it a benefit to the infant ; and his accepting the rent at full age was conclusive that it was for his benefit. But how do these authorities affect a case like the present, where it is clear upon the face of the instrument that it is to the prejudice of the infant, for it is an obligation with a penalty, and for the payment of interest ? Is there any authority to show, that if, upon looking to the instrument, the court can clearly pronounce, that it is to the infant's prejudice, they will, nevertheless, suffer it to be set up by matter ex post facto after full age ?" And then, after com- menting on Keane v. Baycott, and Fisher v. Mowbray, he added : " In Zouch V. Parsons, where this subject was much considered, I find nothing '■which tends to show that an infant may bind himself to his prejudice. It is the privilege of the infant that he shall not ; and we should be 'breaking down the protection, which the law has cast around him, if -we were to give effect to a confirmation by parol of a deed, like this, made during his infancy." It is apparent, then, upon the English authorities, that however true it may be, that an infant may so far bind himself by deed in certain cases, as that in consequence of the solemnity of the instrument it is voidable only and not void; yet that the instrument, however solemn, is held to be void, if upon its face it is apparent, that it is to the preju- TUCKER ET AL. V. MORELAND: VASSE V. SMITH. 229 dice of the infant. This distinction, if admitted, would go far to recon- cile all the cases; for it would decide, that a deed, by virtue of its solemnity should be voidable only, unless it appeared on its face to be to his prejudice, in which case it would be void.(l) The same question has undergone no inconsiderable discussion in the American courts. In Oliver v. Hendlet, 13 Mass. Rep. 239, the court seemed to think the true rule to be, that those acts of an infant are void, which not only apparently but necessarily operate to his pre- judice. In Whitney v. Dutch, 14 Mass. Rep. 462, the same court said, that whenever the act done may be for the benefit of the infant, it shall not be considered void ; but that he shall have his election, when he comes of age, to affirm or avoid it. And they added, that this was the only clear and definite proposition, which can be extracted from the authorities. (2) In Conroe v. Birdsall, 1 John. Gas. 127, the court ap- proved of the doctrine of Perkins, § 12, as it was interpreted and adopted in Zouch v. Parsons, and in the late case of Roof v. Stafford, 7 Cowen's Rep. 180, 181, the same doctrine was fully recognised. But in an intermediate case, Jackson v. Burchin, 14 John. Rep. 126, the court doubted, whether a bargain and sale of lands by an infant was a valid deed to pass the land, as it would make him stand seized to the use of another. And that doubt was well warranted by what is laid down in 2 Inst. 673, where it is said that if an infant bargain and sell lands, which are in the realty, by deed indented and enrolled, he may avoid it when he will, for the deed was of no effect to raise a use- The result of the American decisions has been correctly stated by Mr. Chancellor Kent, in his learned Commentaries (2 Com. Lect. 31), to be, that they are in favour of construing the acts and contracts of infants generally to be voidable only, and not void, and subject to their election, when they become of age, either to afiirm or disallow them ; and that the doctrine of Zouch v. Parsons has been recognised and adopted as law. It may be added that they seem generally to hold, that the deed of an infant conveying lands is voidable only, and not void; unless, perhaps, the deed should manifestly appear on the face of it to be to the prejudice of the infant ; and this upon the nature and solemnity, as well as the operation of the instrument. It is not, however, necessary for us in this case to decide whether the present deed, either from its being a deed of bargain and sale, or from its nature, as creating a trust for the sale of the estate, or from the other circumstances of the case, is to be deemed void, or voidable only (1) See Bao. Abridg. Infancy and Age, I. 3. I. 7. (2) See Boston Bank v. Chamberlain, 15 Mass. Rep., 220. 230 INFANCY. For if it be voidable only, and has been avoided by the infant, then the sanae result will follow, that the plaintiff's title is gone. Let us, then, proceed to the consideration of the other point, whether, supposing the deed to Wallach to be voidable only, it has been avoided by the subsequent deed of Barry to Mrs. Moreland. There is no doubt that an infant may avoid his act, deed, or contract, by different means, according to the nature of the act, and the circumstances of the case. He may sometimes avoid it by matter in pais, as in case of a feoffment by an entry, if his entry is not tolled ; sometimes by plea, as when he is sued upon his bond or other contract ; sometimes by suit, as when he disafBrms a contract made for the sale of his chattels, and sues for the chattels ; sometimes by a writ of error, as when he has levied a fine during his nonage ; sometimes by a writ of audita querela, as when he has acknowledged a recognisance or statute staple or merchant ;(1) sometimes, as in the case of alienation of his estate during his nonage by a writ of entry, dum fuit infra setatem, after his arrival of age. The general result seems to be that where the act of the infant is by matter of record, he must avoid it by some act of record (as for instance, by a writ of error, or an audita querela) during his minority. But if the act of the infant is a matter in pais, it may be avoided by an act in pais of equal solemnity or notoriety; and this, according to some authorities, either during his nonage or afterwards ; and according to others, at all events, after his arrival of age.(2) In Co. Litt. 380, b., it is said, " Herein a diversity is to be observed between matters of record done or suffered by an infant, and matters in fait; for matters in fait he shall avoid either within age or at full age, as hath been said ; but matters of record, as statutes, merchants, and of the staple, recog- nisance acknowledged .by him, or a fine levied by him, recovery against him, &c., must be avoided by him, viz. statutes, &c., by audita querela; and the fine and recovery by a writ of error during his minority, and the like." In short, the nature of the original act or conveyance generally governs, as to the nature of the act required to be done in the disaflSrm- ance of it. If the latter be of as high and solemn a nature as the former, it amounts to a valid avoidance of it. We do not mean to say, that in all cases the act of disaffirmance should be of the same, or of as high and solemn a nature as the original act ; for a deed may be avoided by a plea. But we mean only to say, that if the act of disaffirmance (1) See Com. Dig: Enfant, B. 1, 2, C. 2, 3, i, 6, 8, 9, 11; 2 Inst,, 673; 2 Kent Comm., sect. 31; Bao. Abridg. Infancy and Age, I. a, I. 7. (2) See Bao. Abridg. Infancy and Age, I. 3, I. 5, I. 7; Zoueh ». Parsons, 3 Burr., 1694; Koof c. Stafford, 7 Cowen R. 179, 183; Com. Dig. Enfant, C. 9, C. 4, C. 11. TUCKER ET A L. V. MORELAND: VASSE V. SMITH. 231 be of as high and solemn a nature, there is no ground to impeach its sufficiency. Lord Ellenborough, in Baylis v. Dineley (3 Maule and Selw. 481, 482), held a parol confirmation of a bond given by an infant after he came of age to be invalid ; insisting that it should be by some- thing amounting to an estoppel in law, of as high authority as the deed itself; but that the same deed might be avoided by the plea of infancy. There are cases, however, in which a confirmation may be good without being by deed; as in case of a lease by an infant, and his receiving rent after he came of age.(l) The question then is, whether in the present case, the deed to Mrs. Moreland, being of as high and solemn a nature as the original deed to Wallach ; is not a valid disaffirmance of it. We think it is. If it was a voidable conveyance which had passed the seisin and possession to Wallach, and he had remained in possession, it might, like a feoffment, have been avoided by an entry by an infant after he came of age. (2) But in point of fact Barry remained in possession ; and therefore he could not enter upon himself. And when he conveyed to Mrs. Moreland, being in possession, he must be deemed to assert his original interest in the land, and to pass it in the same manner as if he had entered upon the land and delivered the deed thereon, or if the same had been in adverse possession. The cases of Jackson v. Carpenter (11 John. R. 539), and Jackson V. Burchin (14 John. R. 124), are directly in point, and proceed upon principles, which are in perfect coincidence with the common law, and are entirely satisfactory. Indeed, they go farther than the circumstances of the present case require ; for they dispense with an entry where the possession was out of the party when he made the second- deed. In Jackson v. Burchin the court said, that it would seem not only upon principle but authority, that the infant can manifest his dissent in the same way and manner by which he first assented to convey. If he has given livery of seisin, he must do an act of equal notoriety to disaffirm the first act ; he must enter on the land and make known his dissent. If he has conveyed by bargain and sale, then a second deed of bargain and sale will be equally solemn and notorious in disaffirmance of the first.(3) We know of no authority or principle, which contradicts this doctrine. It seems founded in good sense, and follows out the principle of notoriety of disaffirmance in the case of a foeffment by an entry; that (1) See Bao. Abridg. Infancy and Age, I. 8. (2) See Inhabitants of Worcester v. Eaton, 13 Mass. R. 375; Whitney i>. Dutch, 14 Mass. R., 462. (3) See the same point, 2 Kent Comm., sect. 31. 232 INFANCY. is, by an act of equal notoriety and solemnity with the original act. The case of Frost v. Wolverton (1 Strange, 94) seems to have proceeded on this principle. Upon these grounds we are of opinion, that the deed of Barry to Mrs. Moreland was a complete disaffirmance and avoidance of his prior deed to Wallach ; and consequently, the instruction given by the cir- cuit court was unexceptionable. To give effect to such disaffirmance, it was not necessary, that the infant should iirst place the other party in statu quo. The second bill of exceptions, taken by the plaintiff, turns upon the instructions asked upon the evidence stated therein, and scarcely admits of abbreviation. It is as follows : " The plaintiff, further to maintain and prove the issue on his side, then gave in evidence by competent witnesses, facts tending to prove that the said Richard N. Barry had attained the full age of twenty-one years on the fourteenth day of September, 1831 ; and that in the month of November, 1831, the said defendant, who was the mother of the said Richard, did assert and declare that the said Richard was born on the fourteenth day of September, 1810 ; and that she did assert to Dr. McWilliams, a competent and credible witness, who deposed to the facts, and who was the accoucher attending on her at the period of the birth of her said son, that such birth actually occurred on the said fourteenth of September, 1810, and applied to said Dr. McWilliams to give a certificate and deposition that the said day was the true date of the birth ; and thereupon the counsel for the plaintiff requested the court to instruct the jury : — " 1. That, if the said jury shall believe, from the said evidence, that the said Richard N. Barry was of full age, and above the age of twenty- one years, at the time of the execution of said deed to Wallach, or if the defendant shall have failed to satisfy the jury from the evidence that said Barry was, at the said date, an infant under twenty-one years, that then the plaintiff is entitled to recover. " 2. Or if the jury shall believe, from the said evidence, that if said Richard was under age at the time of the execution of said deed, that he did after his arrival at age, voluntarily and deliberately recognize the same as an actual conveyance of his right, or during a period of several months acquiesced in the same without objection, that then the said deed cannot now be impeached on account of the minority of grantor. " 3. That the said deed from the said Richard N. Barry to the defendant, being made to her with full notice of said previous deed TUCKEE ET AL. V. MOEELAND: VASSE V. SMITH. 233 to said Wallach, and including other and valuable property, is not so inconsistent with said first deed as to amount to a disafiirmance of the same. " 4. That from the relative position of parties to said deed to defendant, at and previous to its execution, and from the circum- stances attending it, the jury may infer that the same was fraudulent and void. " 5. That, if the lessors of the plaintiff were induced, by the acts and declarations of said defendant to give a full consideration for said deed to Wallach, and to accept said deed as a full and only security for the debt bona fide due to them, and property bona fide advanced by them, and to believe that the said security was valid and effective, that then it is not competent for said defendant in this action to question or deny the title of said plaintiff under said deed, whether the said acts and declarations were made fraudulently, and for the purpose of practising deception, or whether said defendant, from any cause wilfully misrepre- sented the truth. " Whereupon the court gave the first of the said instructions so prayed as aforesaid, and refused to give to the others. " To which refusal the counsel for the plaintiff excepted." The first instruction, being given by the court, is of course excluded from our consideration on the present writ of error. The second in- struction is objectionable on several accounts. In the first place, it assumes, as a matter of law, that a voluntary and deliberate recogni- tion by a person after his arrival at age, of an actual conveyance of his right during his nonage, amounts to a confirmation of such convey- ance. In the next place, that a mere acquiescence in the same con- veyance, without objection, for several months after his arrival at age, is also a confirmation of it. In our judgment, neither proposition is maintainable. The mere recognition of the fact, that a conveyance has been made, is not, per se, proof of a confirmation of it. Lord Ellen- borough, in Baylis v. Dineley (3 M. & Selw. 482), was of opinion, that an act of as high a solemnity as the original act was necessary to a confirmation. " We cannot (said he) surrender the interests of the infant into such hands as he may chance to get. It appears to me, that we should be doing so in this case, (that of a deed,) unless we required the act after full age to be of as great a solemnity as the original in- strument." Without undertaking to apply this doctrine to its full extent, and admitting that acts in pais may amount to a confirmation of a deed, still we are of opinion, that these acts should be of such a solemn and unequivocal nature as to establish a clear intention to con- 234 INFANCY. firm the'deed, after a full knowledge that it was voidable. (1) A fortiori, mere acquiescence, uncoupled with any acts demonstrative of any attempt to confirm it, would be insufficient for the purpose. In Jackson V. Carpenter (11 Johns. R. 542, 543), the court held that an acquiescence by the grantor in a conveyance made during his infancy, for eleven years after he came of age, did not amount to a confirmation of that conveyance ; that some positive act was necessary, evincing his assent to the conveyance. In Austin v. Patton (11 Serg. & Rawle, 311), the court held, that to constitute a confirmation of a conveyance or con- tract by an infant, after he arrives at age, there must be some distinct act, by which he either receives a benefit from the contract after he arrives at age, or does some act of express ratification. There is much good sense in these decisions, and they are indispensable to a just support of the rights of infants according to the common law. Besides, in the present case, as Barry was in possession of the premises during the whole period until the execution of his deed to Mrs. Moreland, there was no evidence to justify the jury in drawing any inference of any intentional acquiescence in the validity of the deed to Wallach. The third instruction is, for the reasons already stated, unmaintain- able. The deed to Mrs. Moreland contains a conveyance of the very land in controversy, with a warranty of the title against all persons claiming under him (Barry), and a covenant, that he had good right and title to convey the same, and therefore, is a positive disaflBrmance of the former deed. The fourth instruction proceeds upon the supposition, that if the deed to Mrs. Moreland was fraudulent between the parties to it, it was utterly void, and not merely voidable. But it is clear, that between the parties it would be binding, and available ; however, as to the persons whom it was intended to defraud, it might be voidable. Even if it was made for the very purpose of defeating the conveyance to Wallach, and was a mere contrivance for this purpose, still it was an act competent to be done by Barry, and amounted to a disaffirmance of the conveyance to Wallach. In many cases, the disaffirmance of a deed made during infancy, is a fraud upon the other party. But this has never been held sufficient to avoid the disaffirmance, for it would otherwise take away the very protection which the law intends to throw round him, to guard him from the effects of his folly, rashness and misconduct. In Saunder- son V. Marr (1 H. Bl. 75), it was held, that a warrant of attori^y, given by an infant, although there appeared circumstances of fraud on his part, was utterly void, even though the application was made to the (1) See Boston Bank v. Chamberlin, 15 Mass. Rep., 220. TUCEEE ET AL. V. MORELAND: VASSE V. SMITH. 235 * equity side of the court, to set aside a judgment founded on it. So, in Conroe v. Birdsall (1 John. Gas. 127), a bond made by an infant, who declared at the time, that he was of age, was held void, notwithstanding his fraudulent declaration ; for the court said that a different decision would endanger all the rights of infants. A similar doctrine was held by the court in Austin v. Patton (11 Serg. & Rawle, 309, 310). In- deed, the same doctrine is to be found affirmed more than a century and a half ago, in Johnson v. Pie (1 Lev. 169) ; S. C. 1 Sid. 258 ; 1 Kebb. 995, 913.(1) But what are the facts, on which the instruction relies as proof of the deed to Mrs. Moreland being fraudulent and void ? They are " the relative positions of the parties to said deed, at and previous to its exe- cution :" that is to say, the relation of mother and son ; and the fact that she had then instituted a suit against him, and arrested him, and held him to bail, as stated in the evidence ; and " from the circum- stances attending the execution of it ;" that is to say, that Mrs. More- land was informed by Barry, before his deed to her, that he had so con- veyed the said property to Wallach, and that subsequently, and with such knowledge, she prevailed on Barry to execute to her the same con- veyance. Now, certainly, these facts, alone, could not justly authorize a conclusion, that the conveyance to Mrs. Moreland was fraudulent and void ; for she might be a bona fide creditor to her son. And the con- sideration averred in that conveyance showed her to be a creditor, if it was truly stated (and there was no evidence to contradict it) ; and if she was a creditor, then she had a legal right to sue her son, and there was no fraud in prevailing on him to give a deed to satisfy that debt. It is probable, that the instruction was designed to cover all the other facts stated in the bill of exceptions, though in its actual terms it does not seem to comprehend them. But, if it did, we are of opinion, that the jury would not have been justified in inferring, that the deed was fraudulent and void. In the first place, the proceedings in the orphans' court may, for aught that appears, have been in good faith ; and under an innocent mistake of a year of the actual age of Barry. In the next place, if not so, still the mother and the son were not estopped in any other proceeding to set up the nonage of Barry, whatever might have been the case as to the parties and property involved in that proceed- ing. In the next place, there is not the slighest proof that these pro- ceedings had at .the time, any reference to, or intended operation upon the subsequent deed made to Wallach ; or that Mrs. Moreland was party to, or assisted in, the negotiations or declarations on which the deed to (1) See Bao. Abridg. Infancy and Age, H, 2 Kent Comment. Lect., 31. 236 INFANCY. Wallach was founded. Certainly, without some proofs of this sort, it would be going too far to assert, tliat the jury might infer, that the deed to Mrs. Moreland was fraudulent. Fraud is not presumed either as a matter of law or fact, unless under circumstances not fairly sus- ceptible of any other interpretation. The fifth instruction was properly refused by the court, for the plain reason that there was no evidence in the case of any acts or declara- tions by Mrs. Moreland to the effect therein stated. It was, therefore, the common case of an instruction asked upon a mere hypothetical statement, ultra the evidence. " The third bill of exceptions is as follows : — " The court having refused the 2d, 3d, 4th, and 5th instructions prayed by the plaintiffs, and the counsel, in opening his case to the jury, contending that the questions presented by the said instructions were open to the consideration of the jury, the counsel for the defendant thereupon prayed the court to instruct the jury that, if, from the evi- dence so as aforesaid given to the jury, and stated in the prayers for the said instructions, they should be of opinion, that the said Richard was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach, under whom the plaintiffs claim their title in this case, and that at the time he made his deed as herein- before mentioned to the defendant, he was of full age, that such last- mentioned deed was a disaflBrmance of his preceding deed to him, the said Richard Wallach, and that in that case the jury ought to find their verdict for the defendant, and that the evidence upon which the 2d, 3d, 4th, and 5th instructions were prayed by the plaintiif as aforesaid, which evidence is set forth in the instructions so prayed, is not compe- tent in law to authorize the jury to find a verdict for the plaintiff upon any of the grounds or for any of the reasons set forth in the said prayers, or to authorize them to find a verdict for the plaintiff, if they should be of opinion, that the said Richard Barry was under the age of twenty-one years at the time he made his deed as aforesaid to the said Richard Wallach. " Which instruction the court gave as prayed, and the counsel for the plaintiff excepted thereto." It is unnecessary to do more than to state, that the bill of exceptions is completely disposed of by the considerations already mentioned. It contains no more than the converse of the propositiqns stated in the second bill of exceptions, and the reassertion of the instructions given by the court in the first bill of exceptions. Upon the whole, it is the opinion of the court, that the judgment of the circuit court ought to be afiBrmed with costs. TUCKER ET AL. V. JIORELAND: VASSE V. SMITH. 237 VASSE V. SMITH. FEBRUARY TERM, 1810. [reported. 6 CRANCH. 226-233.J Infancy is a bar to an action hy an owner against Ms supercargo for breach of instructions ; but not to an action of trover for the goods. Still, however, infancy may be given in evidence in an action of trover, upon the plea of not guilty ; not as a bar, but to show the nature of the act which is supposed to be a conversion. An infant is liable in trover, although the goods were delivered to him under a contract, and although they were not actually converted to his own use. A bill of exceptions ought to state that evidence was offered of the facts upon which the opinion of the court was prayed. Error to the circuit court for the District of Columbia. The declaration had two counts ; Ist, a special count, charging the de- fendant Smith, who was a supercargo, with breach of orders ; 2nd, trover. The first stated that Vasse, the plaintiff, was owner and possessed of seventy barrels of flour, and, at the instance and request of the defend- ant, put it on board a schooner at Alexandria to be shipped to Norfolk, under the care, management and direction of the defendant, to be by him sold for and on account of the plaintiff, at Norfolk, for cash, or on a credit of sixty days, in good drafts on Alexandria, and negotiable in the bank of Alexandria. That the defendant was retained and employed by the plaintiff for the purpose of selling the flour as aforesaid, for which service the plaintiff was to pay him a reasonable compensa- tion. That the defendant received the flour at Alexandria, put it on board the schooner, and sailed with the flour under his care and direc- tion, to Norfolk ; " yet the defendant, not regarding the duty of his said employment, so badly, carelessly, negligently, and improvidently behaved himself in said service and employment, and took such little care of the said flour by him so received as aforesaid, that he did not sell the same, or any part thereof, at Norfolk, for cash, or on a credit of sixty days for drafts on Alexandria, negotiable in the bank of Alexan- dria, but the said defendant, on the contrary thereof, by and through his own neglect and default, and through his wrongful conduct, careless- ness and improvidence, suffered the same, and every part of the said 238 INFANCY. seventy barrels of flour, in his possession as aforesaid, to be embezzled, or otherwise to be wholly lost, wasted, and destroyed." The second count was a common count in trover for the flour. The defendant, besides the plea of not guilty, pleaded infancy to both counts; and to which last plea the plaintiff demurred generally. The court below rendered judgment for the defendant upon the de- murrer to the plea of infancy to the first count; and for the plaintiS" upon the demurrer to that plea to the second count. Upon the trial, in the court below, of the issue of not guilty, to the count for trover, three bills of exception wBre taken by the plaintiff. The first bill of exceptions stated, that the defendant offered evidence to prove that the flour was consigned and delivered to the defendant by the plaintiff, under the following letter of instructions : "Mr. Samuel Smith: — Sir — I have shipped on board the schooner, Sisters, Captain , bound to JSTorfolk, 70 barrels of superfine flour marked A. V., to you consigned. As soon as you arrive there I will be obliged to you to dispose of it as soon as you can to the best advantage for cash, or credit at 60 days in a good draft on this place, negotiable at the bank of Alexandria. I should prefer the first, if not much differ- ence ; however, do for the best of my interest. (Signed) "Amb. Vassb." And that the defendant received the flour in consequence of that let- ter of instructions, and upon the terms therein mentioned. That the flour was not sold by the defendant at Norfolk, but was shipped from thence by him, without other authority than the said letter of instruc- tions, to the West Indies, for and on account of one Joseph Smith, as stated in the bill of lading, which was for three hundred and ninety-eight barrels, seventy of which were stated in the margin to be marked A. V., 198 I. S., 100 D. I. S., and 30 P. T. That the defendant when he received the flour, and long after he shipped it, was an infant under the age of twenty-one years. Whereupon the court, at the prayer of the defendant, instructed the jury that if they found the facts as stated, the defendant was not liable upon the count for trover. The second exception was the admission of evidence of the defendant's infancy. The third exception stated that, upon the facts aforesaid, (the facts in the first bill of exceptions mentioned,) the plaintiff prayed the court to instruct the jury that if they shall be of opinion that the defendant TUCKER ET A L. V. MORELAND: VASSE V. SMITH. 239 was under the age of twenty-one years, and between the age of nineteen and twenty years, and that the defendant of his own head shipped the flour to the West Indies, in a vessel which has been lost by the perils of the sea, and that the said shipment was made with other flour, on account of his father Joseph Smith, in such case the defendant has thereby com- mitted a tort in regard to the plaintiff, for which he is liable in this action, notwithstanding his infancy aforesaid; which instruction the court refused to give. The verdict and judgment being against the plaintiff, he brought his writ of error. E. J. Lee and 0. Lee, for the plaintiff in error. 1. The infancy of the defendant was no bar to the first count, because it was a count in tort, and not upon contract, and infants are liable for torts and injuries of a private nature. (1) 2. The shipping of the flour without authority was a conversion. Youl V. Harbottle, Peake, 49.(2) 3. Infancy cannot be given in evidence upon the issue of not guilty. It is admitted that if the possession had been obtained by a tort, the infant would be liable ; but it is contended that the possession having been rightfully obtained, a subsequent misapplication of the property by an infant cannot be a conversion unless it be actually a conversion to his own use. But there are no cases to justify such a doctrine, and it is contrary to the principles of analogous cases. In an action of trespass for mesne profits infancy is no bar, although he becomes a trespasser by implica- tion of law.(3) So a, feme covert is liable in an action of trover, because the conversion is a tort. Draper v. Fulkes, Yelverton, 166. Although infancy may be given in evidence upon non assumpsit, yet it cannot upon any other general issue.(4) Upon not guilty, the defend- ant cannot give in evidence a license, nor a right to a way, nor any other matter of a justification. (5) Any act which, if done by a person of full age, would be a conversion, will be a conversion if done by an infant. (1) Govett I). Radnidge and others, 3 East, 62; 3 Bao. Ab., 132; Hodsman v. Grisell, Noy, 129; Roll's Abr., 630; Eearnes v. Smith, 3 Bac. Abr., 126. (2) See also Syeds «. Hay, i Term, 260; Perkins v. Smith, 1 Wilson, 328; Colston v. Woolston, cited in BuUer's Nisi Prius, ed. of 1793, p. 35 ; Baldwin v. Cole, 6 Mod., 212 ; M'Combie ti. Davis, 6 East, 539. (3) Stone v. Whithipool, Latch., 21 ; 1 Bac. Abr., 132 ; Bristow v. Eastman, 1 Espinasse, 172. (4) Gilbert's Law of Evidence, 164, 216, 217; Bennet v. Alcott, 2 Term, 166. (5) Underwood v. Parks, Strange, 1200; 1 Tidd's Practice, 591, 598, 600. 240 INFANCY. In the present case the bill of lading, which is a negotiable instru- ment, being in the name of Joseph Smith, the plaintiff had no power or control over it. It would unquestionably be a conversion if done by an adult. The only question is, whether the nature of the act is altered by being done by an infant. (1) Swann, contra. An infant is liable for actual, not for constructive torts founded upon contract or bailment, which is in the nature of a contract. In this case the action might as well have been brought upon the contract, as upon the tort. If it had been brought upon the contract, infancy would have been a bar. The case is clearly within the reason of the law of infancy, and it cannot be in the power of the plaintiff by his form of action to deprive the defendant of his defence. Youl v. Harbottle, cited from Peake arose entirely ex delicto. These are cases in which infancy may be given in evidence upon not guilty. {2) Makshall, C. J. The first error, alleged in this record, consists in sustaining the plea of infancy to the first count in the declaration. This count states a contract between the plaintiff and defendant, by which the plaintiff committed seventy barrels of flour to the care of the defendant, to be carried to Norfolk, and there sold for money, or on sixty days' credit, payable in drafts on Alexandria, negotiable in the bank. The plaintiff then alleges that the defendant did not per- form his duty in selling conformably to his instructions, but, by his negligence, permitted the flour to be wasted so that it was lost to the plaintiff. The case, as stated, is completely a case of contract, and exhibits no feature of such a tort as will charge an infant. There can be no doubt but that the court did right in sustaining the plea. The second count is in trover, and charges a conversion of the flour. That an infant is liable for a conversion is not contested. The circuit court was of itself of that opinion, and therefore sustained the demurrer to this plea. But, in the progress of the cause, it appeared that the goods were not taken wrongfully by the defendant, but were committed to his care by the plaintiff, and that the conversion if made, was made while they were in his custody under a contract. The court then per- (1) Caldwell v. Ball, 1 Term, 216, 744; Leekbarrow •). Mason, 2 Term, 63; S. C, 6 Term, 131; 5 Term, 583. (2) Ross V, Johnson, 5 Burrow, 2826. TUCKEB ET A L. V. MOKELAND: VASSE V. SMITH. 241 mitted infancy to be given in evidence on tiie plea of not guilty. To this opinion an exception was taken. If infancy was a bar to a suit of trover brought in such a case, the court can perceive no reason why it may not be given in evidence on this plea. If it may be given in evidence on non assumpsit, because the infant cannot contract, with at least an equal reason may it be given in evidence in an action of trover in a case in which he cannot convert. But this court is of opinion that infancy is no complete bar to an action of trover, although the goods converted be in his possession, in virtue of a previous contract. The conversion is still in its nature a tort ; it is not an act of omission but of commission, and is within that class of oflfenc'es for which infancy cannot afford protection. Yet it may be given in evidence, for it may have some influence on the question, whether the act complained of be really a conversion, or not. The court, therefore, does not consider the admission of this testimony as error. The defendant exhibited the letter of instructions under which he acted, which is in these words; "Sir," &c., but the plaintiif oifered evidence that the flour was not sold in Norfolk, but was shipped by the defendant to the West Indies, for and on account of a certain Joseph Smith, as by the bill of lading which was produced. The defendant then gave his infancy in evidence, and prayed the court to instruct the jury, that if they believed the testimony, he was not liable on the second count stated in the plaintiff's declaration, which instruction the court gave, and to this opinion an exception was taken. This instruction of the court must have been founded on the opinion that infancy is a bar to an action of trover for goods committed to the infant, under a contract, or that the fact proved did not amount to a conversion. This court has already stated its opinion to be, that an infant is chargeable with a conversion, although it be of goods which came law- fully to his possession. It remains to inquire whether this is so clearly shown not to be a conversion, as to justify the court in saying to the jury, the defendant was not liable in this action. The proof ofi"ered was, that the defendant shipped the goods on account of Joseph Smith. This fact, standing unconnected with any other, would unquestionably be testimony which, if not conclusive in favour of the plaintiff, was, at least, proper to be left to the jury. But it is urged that this statement refers to the bill of lading, from the notes in the margin of which it appears that, although the bill of lading which VOL. I. — 16 242 INFANCY. ■was for a much larger quantity of flour, was made out in the name of Joseph Smith, yet, in point of fact, the shipment was made for various persons, and, among others, for the plaintiiF. The court perceive, in this bill of exceptions, no evidence explana- tory of the terms under which this shipment was made, and the marks in the margin of the bill of lading do not, in themselves, prove that the shipment was not made for the person in whose name the bill was filled up It is possible that it may have been proved to the jury that this flour was really intended to be shipped on account of the plaintifl^, and that the defendant did not mean to convert it to his own use. But the letter did not authorize him so to act. It was not, therefore, a complete discharge; and should it be admitted that an infant is not chargeable with a conversion made by mistake, this testimony ought still to have been left to the jury. The defendant would certainly be at liberty to prove that the shipment was in fact made for Vasse, and that he acquiesced in it so far as to consider the transaction not as a conversion ; but without any of these circumstances which, if given in evidence, ought to have been left to the jury, the court has declared the action not sustainable. This court is of opinion that the circuit court has erred in directing the jury that, upon the evidence given, the defendant was not liable under the second count ; for which their judgment is to be reversed, and the cause remanded for further proceedings. (1) The rule that a contract clearly beneficial is binding upon an infant, that one clearly prejudicial is void, and that such as may be either beneficial or injurious are voidable, has been approved of in the courts of several States. (2) In some others, it has been objected to as unsatisfactory and liable to exceptions. (3) Notwithstanding the respectability of the opinions which have given support (1) The Chief Justice noticed also the phraseology of the third bill of exceptions. It prays the opinion of the Court upon certain facts, without stating that any evidence of those facts was given to the jury. It is doubtful whether those facts exist in the case, and whether the Court would be bound to give an opinion upon them. (2) Vent V. Osgood, 19 Pidcering, 572, 573 ; Lawson v. Lovejoy, 8 Greenleaf, 405; Fridge v, The State, use of Kirlc, 3 Gill & Johnson, 104, 116; Kline v. Beebe, 6 Connecticut, 494, 603 ; Wheaton v. East, 5 Yerger, 41, 61 ; Langford, Adm'r, i-. Frey, Ex'r, 8 Humphreys, 443, 446 ; M'Gan v. Marshall, 7 Id., 121, 125 ; West v. Penny, 16 Alabama, 187. (3) Fonda v. Van Home, 15 Wendell, 631, 635. See the principles discussed at large in Breokenridge's Heirs v. Ormsby, 1 J. J. Marshall, 236; Cheshire «, Barrett, 4 M'Cord, 241 Lester v. Frazer, Riley's Chancery, 76, 86. TUCKER ET A L. V. MORELAND: VASSE V. SMITH. 243 to this rule, the rule seems to be neither sound nor practical. It does not suggest the most important distinction in the whole subject, that between the conveyance of an interest and the appointment of an attorney : the provision, that all contracts clearly prejudicial are void, if on the one hand, it be inter- preted of the security only, would render void, bonds, recognisances, negotiable notes, (which indeed one court was led by a reliance on this rule to pronounce void, in M'Minn v. Riclimonds, 6 Yerker, 9, 19,) the contract of a surety (as the same court held in Wheaton v. East, 5 Id. 41, 61), and many other obliga- tions, all of which undoubtedly are voidable, and not void ; and if, on the other hand, it be construed with reference to the whole transaction, and the induce- ments which have led the infant to contract, it can have no practical applica- tion at all, for all contracts may be beneficial; and in some cases, as where an infant gives a bond, or bond and warrant, for necessaries which he cannot pro- cure on any other terms, acts clearly voidable or void, would require upon this view to be held binding. The rule quoted in Tucker et al. v. Moreland, from Perkins, apparently embodies the true principle ; and is accordingly preferred in Phillips et ux. v. Green, 3 Marshall, 7, 9. [And supported as the true one, in Qole. V. Pennoyer 14, Illinois 160. In the case last cited, where the court refer to and approve the doctrines of the present note as given in the fourth edition of this work, Mr. Justice Caton gives the court's opinion as follows : — " If literally understood, there are certainly serious objections to the rule, that the court must, in every case, inquire whether the deed is for the benefit or to the injury of the infant, and thence determine whether it is void or voidable. In such an inquiry, is the court to look alone to the face of the deed ? or shall it inquire into the circumstances of the transaction ? If the former, the court must often be misled, for it is frequently the case that a deed for the conveyance of land shows but very little of the true character of the transaction, its object being merely to transfer the legal title without a strict regard to the real induce- ments and considerations which moved the party to the conveyance. If the rule be established, that the face of the deed shall determine whether it was to the advantage or injury of the infant, such deeds will always be framed with a view to that, and will never fail to show an advantageous bargain for the minor. There are serious objections, also, to requiring the court to hear evidence show- ing the circumstances of the sale, and thence determine the question of benefit or injury. In the first place, it would interrupt the regular progress of the trial, by a collateral inquiry about facts which when ascertained might induce one to think the bargain advantageous, while another would think it ruinous to the interests of the infant. But in determining these questions, a certain regard must be had to the interests of the public, — of those who may wish to purchase the estate. A subsequent purchaser finding a regular chain of title may be required to ascertain whether those through whose hands the title has passed, were capable of making an obligatory conveyance, and if he finds any of them are infants, take his chance of a subsequent ratification of the convey- ance ; but to require him to ascertain all the circumstances of the bargain, and from these to judge at his peril what the opinion of courts might be of its bene- ficial character, would leave the common assurances of the country in quite too uncertain a condition. It is far better, in our judgments, to hold all con- veyances made by infants in person voidable only, to be confirmed or repudiated by them as they may choose, after they arrive at years of legal discretion. A 244 INFANCY. review of the authorities on this subject, would show that this rule has been generally, if not universally adopted, and it is certainly most to the advantage of the infant, while it least subserves the public interests."] The rule would be suflSoient if properly understood ; but it does not teach its own application. The numerous decisions which have been had in this country, justify the set- tlement of the following definite rule, as one that is subject to no exceptions. The only contract binding on an infant, is the implied contract for necessaries; the only act which he is under a legal incapacity to perform, is the appointment of an attorney ; all other acts and contracts, executed or executory, are voidable or oonfirmable by him at his election. No reference is had at present to the acts of an infant as executor, or to transactions between himself and his guar- dian, which depend on special rules of law or policy. (1.) The only liability absolutely binding on an infant, is the t'mpKec? contract for necessaries ;(1) express contracts, as by bond, note, or account stated, fixing prices for necessaries, are not, as such, binding, and cannot be enforced, without ratification (2) A negotiable note, therefore, though for necessaries, cannot be sued on either by the original payee, or by a hona fide endorsee, unless rati- fied ;(3) the practice in Buhose v. Wheddon, 4 M'Cord, 221, was therefore not regular. In Massachusetts, the practice has become established of allowing suit to be brought on an express contract for necessaries, and a recovery had to the extent of the consideration ; but this is certainly inconsistent with principle, for in a count on a special and express contract, all or nothing should be reco- vered. (4) [And in Vermont, on an old " ui audici" decision, an infant has been held liable on a promissory note, proved unquestionably to have been given for necessaries at a reasonable price ; the court seeing no reason "why he may liot be allowed to contract in the ordinary mode, so long as his perfect safety is maintained always. "(5) But the decision is against good precedents and principle.] Though an infant is liable in damages for a tort, a promissory note given by an infant as compensation for such damages, is not binding. (6) The articles for which an infant can be rendered liable, as necessaries, must not only belong to that class which the law pronounces generally to be necessary for infants, but they must be actually necessary in the particular case; and if an infant be supplied by a parent, guardian, or other person, he cannot himself become liable to a tradesman ;(7) and the fact that an infant is living with his father, or a daughter with her mother, is prima facie evidence that necessaries are supplied by the parent, and there must be distinct evidence that they are (1) Dictum in Roof v. Stafford, 7 Cowen, 179, 182; and see the approval of this in Cole v. Ponnoyer, 14 lUinoie, 153. (2) Dicta in Beeler v. Young, 1 Bibb, 519, 520; Vent v. Osgood, 19 Pickering, 572, 675. (3) M'Crillis v. How, 3 New Hampshire, 348; Bouohell v. Clary, 3 Brerard, 194; Hussey et al. V. Jewett, Ex'r, 9 Massachusetts, 100; Swasey v. Adm'r of Vanderheyden, 10 Johnson, 33; Fenton v. White, 1 Southard, 100. (4) See Earle v. Reed, 10 Metcalf, 387, 390. (5) Bradley v. Pratt, 23 Vermont, 385. (6) Hanks v. Deal, 3 M'Cord, 257. (7) Kline v. L'Amoureux, 2 Paige, 419 ; Guthrie v. Murphy, 4 Watts, 80; Wailing i>. Toll, 9 Johnson, 141; dicta in Angel v. McLellan, 16 Massachusetts, 28, 31; in Pool d. Pratt, Chip- man, 252, 263; in Gay v. Ballou, 4 Wendell, 403, 406; and in Beeler i. Toung, 1 Bibb, 619, 621. TUCKEE ET AL. V. MORELAND: VASSE V. SMITH. 245, not so supplied, before the infant can be rendered personally liable.(l) Whether articles are of a. class for which an infant may be made liable as necessary, is a question of law; whether actually necessary, as respects quantity and non-sup- ply by others, and of reasonable price is for the jury ; (2) subject of course to the control of the court as to the weight of evidence. (3) As to the legal defini- tion of necessaries, see the cases cited below. (4) Necessaries for an infant's wife and children are necessaries for which he is liable. (5) The wants to be supplied, however, are personal ; either those for the body, as food, clothing, lodging, or custody, no doubt, in the case of an insane person, (6) or those for the mind, as suitable instruction ; but expenditures upon the infant's real estate, however beneficial and requisite, can never be regarded as "necessaries," in law;(7) and for contracts, express or implied, growing out of trade in which the infant is engaged, personally, or with others, he is not liable. (8) Money lent to an infant, though for the purpose of buying necessaries, gives no right of action against the infant, for he may squander it on articles not necessary; and the fact that subsequently it is expended by him for necessaries, cannot affect his liability, which must arise from, and at the time of, the loan, and cannot be changed by subsequent events ; but equity will subrogate the lender of the money to the rights of the vendor of the necessaries, as against the infant; (9) and in Bent v. Manning, 10 Vermont, 225, 230, it is said to be questionable whether courts of law, now, might not consider money, to a certain extent, necessary to be furnished to an infant, under some circumstances. (10) Money paid at an infant's request for necessaries, or to discharge a debt contracted by him for necessaries, has been held to be recoverable as necessaries ;(11) and money lent, in and about the purchase of necessaries, and so applied directly by the lender and under his directions, has been held recoverable on a count for money lent and advanced. (12) A father is not liable, merely on the relation of father and son, for necessaries furnished to his son, but only upon a contract, express or implied, and in consequence of a previous authority, or subsequent recognition, which cannot be presumed where the son has abandoned his father's home. (13) An infant is notliable for necessaries, if credit was given to his (1) Connolly 1). Assignees of Hull, 3 M'Cord, B; Jones & Danforth v. Calvin, 1 M'MuUan, 14. (2) Bent v. Manning, 10 Vermont, 225, 230; Beeler i>. Young, 1 Bibb, 519, 621; Grace c. Hale, 2 Humphreys, 27, 29 ; Tupper «. Cadwell, 12 Metoalf, 659, 563. (3) Johnson v. Lines, 6 Watts &, Sergeant, 80, 84. (4) Harrison v. Fane, 1 Manning & Granger, 550; Brooker v. Scott, 11 Meeson & Welsby, 67; Wharton v. Macken7-ie, 5 Queen's Bench, 606; Phelps v. Worcester, 11 New Hampshire, 51, 53; Smithpeters r. Griffin's Ad'r. 10 B. Monroe, 269, 260. (5) Dicta in Abell «. Warren, 4 Vermont, 149, 152; and Beeler v. Ynung, 1 Bibb, 519, 520; and see the very interesting ease of Chappie v. Cooper, 13 Meeson & Welsby, 252. (6) Richardson v. Strong, 13 Iredell, 106. (7) Tupper v. Cadwell, 12 Metcalf, 559; Hassard v. Rowe, 11 Barbour, 23. (8) Mason and another «. Wright and another, 13 Id., 306. (9) Beeler v. Young, 519, 521, 522; Hickman v. Hall's Ad'rs, 5 Littell, 338, 342; Walker i;. Simpson, 7 Watts &, Sergeant, 83, 88. (ID) See Bradley v. Pratt, 23 Vermont, 386. (11) Randall i. Sweet, 1 Denio, 460; Conn v. Coburn, 7 New Hacopshire, 368; Adm'r of Haine v. Tarrant, 2 Hill's So. Car., 400. (12) Smith ti. Oliphant, 2 Sandford's S. Ct., 306, 308. (13) Varney v. Young, 11 Vermont, 258; Gordon v. Potter, 17 Id., 349; Hunt v. Thompson, 246 INFANCY. father or guardian ;(1) and that is inferred where the articles or services are rendered by direction of the father or guardian. (2) [The admission of an infant is not per se evidence that the goods furnished were necessaries; (3) but when this is shewn aliunde, his subsequent acknow- ledgment may have the effect of reviving the debt and taking it out of the statute of limitations, (4) because an infant cannot bind himself by the state- ment of an account. (5) An infant is chargeable with interest on a claim obligatory for its principal against him.] (6) Besides the liability for necessaries, there may be some acts which are, in effect, binding upon an infant, because they are such as he was compellable to do, and could be compelled to do immediately again in the same way, if he avoided them. Thus, in a case where a father had purchased land in the name of his infant son, for the purpose of defrauding his creditors, and had after- wards sold the land to a purchaser for a valuable consideration, and the infant had at the father's instance conveyed the legal title to the purchaser, it was decided that be could not, after age, avoid his conveyance ; because, though the legal title was cast upon him, by the fraudulent conduct of his father, he had no right to the land against a creditor or purchaser, and therefore, when he conveyed to the purchaser from his father, he merely parted with the naked title, and only did that which a court of equity would have compelled him to do, and which, if disaffirmed, he would be compelled to do again. (7) So as to equal partition of lands and just admeasurement of dower ;(8) yet it cannot be considered that the act of the infant concludes him as to the correctness of the division or allotment, or that if, on arriving at age, he at once renounced and disaffirmed the act, he would not be at liberty to do so. (9) By statute, of course, contracts, such as of naval apprenticeship or enlistment, may be made binding. (10) The binding effect of proceedings in partition in Pennsyl- vania, where a purpart is accepted by a guardian, depends upon statutes ;(11) and that of a jointure to an infant feme covert, (as to which see Lester v. Fra- zer, Riley's Chancery, 76, 83,) on the jointure's being, not a contract by the wife, but a provision by the husband, operating as a bar, by statute or by 3 Scammon, 179 : Angel v. McLellan, 16 Massachusetts, 2S; but see, In the matter of Ryder, 11 Paige, 1S5, 188. (1) Simms V. Norris Co., 5 Alabama, 42; dictum in Johnson d. Lines, 6 Watts 4 Sergeant, 80, 83. (2) Phelps V. Worcester, 11 New Hampshire, 51. (3) Ingledew v. Douglass, 2 Starkie, 236. (4) Williams v. Smith, 4 Ellis & Blackburn, [E. C. L.,] 179. (5) Williams v. Moore, 11 Meeson & Welsby, 256; Oliver v. Woodruff, 4 Id., 650. (6) Bradley v. Pratt, 23 "Vermont, 386. (7) Elliott V. Horn, 10 Alabama, 348, 353. (8) Bavington and others o. Clarke, 2 Pennsylvania, 115, 124; Commonwealth v. Hantz, Id., 333, 337 ; Jones et u.x. v. Brewer, 1 Pickering, 314, 317. (9) See Brown i>. Caldwell, 10 Sergeant & Rawle, 114; Hege and others v. Hege and others, 1 Pennsylvania, 83, 91.. (10) Commonwealth v. Murray, 4 Binney, 487 ; U. S. v. Eainbridge, 1 Mason, 71 ; See TJ. S. v. Blakeney,'3 Grattan, 405 ; TJ. S. v. Lipscomb, 4 Id., 41 ; and on the other hand. Common- wealth V. Fox, 7 Barr, 336. (11) Case of Gelbaoh's Appeal, 8 Sergeant & Rawle, 205. TUCKER ET AL, V. MOKELAND: VASSE V. SMITH. 247 analogy to a statute. (1) As to marriage articles on the part of an infant feme, see Healy et ah. v. Roioan el als.^ 5 Grattan, 414. In The People v. Moores, 4 Denio, 519, where a bastardy bond given by an infant was held to be bind- ing, the ground of the decision was that the statute of the state, which obliged the infant to enter into such a bond, gave him a legal capacity to make a bind- ing obligation in that form. In Woodruff v. Loijan, 1 English, 276, it was held that a contract of apprenticeship by an infant by deed was binding, as being a thing manifestly for his benefit; but as a confirmation, after age, was alleged, the case is not an authority for any such doctrine. (2.) An act which an infant is under a legal incapacity to perform, is the appointment of an attorney, (2) or, in fact, an agent of any kind. (3) And this rule depends upon reasoning which, if somewhat refined, is yet perhaps well founded. The constituting of an attorney by one whose acts are in their nature voidable, is repugnant and impossible, for it is imparting a right which the principal does not possess, that of doing valid acts. If the acts when done by the attorney remain voidable at the option of the infant, the power of attor- ney is not operative according to its terms ; if they are binding upon the infant, then he has done through the agency of another what he could not have done directly, — binding acts. The fundamental principle of law in regard to infants requires that the infant should have the power of afiirming such acts done by the attorney as he chooses, and avoiding others, at his option : but this involves an immediate contradiction, for to possess the right of availing himself of any of the acts, he must ratify the power of attorney', and if he ratifies the power, all that was done under it is confirmed. If he affirms part of a transaction, he at once confirms the poyer, and thereby, against his intention, aifirms the whole transaction. Such personal and discretionary legal capacity as an infant is vested with, is, therefore, in its nature, incapable of delegation : and the rule that an infant cannot make an attorney is, perhaps, not an arbitrary or acci- dental exception to a principle, but a direct, logical necessity of that principle. But if the considerations suggested as the foundation of this rule be not satisfactory, the rule itself is established by a conclusive weight of authority. (1) Shaw and wife v. Boyd, 5 Sergeant & Rawie, 309, 311. (2) Dicta, per Parker, C. J., in Whitney et al. v. Dutch et al., 14 Massachusetts, 457, 461, 463 : per Woodworth, J., in Roof v. Stafford, 7 Cowen, 179, 180 ; per Jones, C, in Stafford v. Roof, 9 Id., 626, 628 ; per Bronson, J., in Fonda v. Van Home, 15 Wendell, 631, 635; and in Bool V. Mix, 17 Id., 120, 131; per Perkins, J., in Hiesland v. Kuns, 8 Blackford, 345, 348; Cole B. Pennoyer, 14 Illinois, 159. (3) Doe d. Thomas v. Roberts, 16 Meeson & Welsby, 778 ; [Whitney v. Dutch, decided in 14 Massachusetts, 457, the decision in which may appear to conflict with this position, was special, in being a case of partnership ; and the endorsement of the infant's name by his major partner. If the psirtnership was not void, as it was not, but only voidable, the act of an endorsement, which, as an incident to the partnership, the major partner had a general power to do, was perhaps not voidf but only voidable by the infancy. The incidental power partook of the character of the principal contract, and in truth, partners are not strictly agents of each other. Each in a kind of way has individual power over all partnership property. Hardy v. Waters, 38 Maine, 450, in which it was decided, that an infant might by parol authorize an endorsement of his note, which would be voidable only, appears to have proceeded on a want of observance of the true effect of Whitney ti. Dutch; and that case was followed reluctantly, as an authority binding on the Courts of Maine, which State, when Whitney v, Dutch was decided, 1817, formed a part of Massachusetts.] 24:8 INFANCY. Acoordingl3', a power of attorney by an infant, to sell Tand, is absolutely void;(l) and a warrant of jittorney to confess judgment is absolutely void, and judgment entered upon it will be set aside on motion. (2) Apparently, upon this legal incapacity on the part of an infant to create an attorney, the courts of New York have established an important consequence in respect to sales of chattels, that a present sale of chattels by an infant, without manual delivery by him, is void. (3) But this is believed to be a misapprehension. Even if the transfer of possession were necessary to the completeness and validity of the sale, there is a dififerenoe between an authority to give posses- sion and a license to take possession, and there is no reason why the latter should be considered void. But transfer of possession is not necessary to the validity of a sale of chattels : on a contract of present sale, the property passes immediately, without delivery. It is true, that upon a sale of chattels by an infant without manual delivery, trespass will lie against the vendee taking po's- session, according to the old authorities ;(-i) but that is not because the sale was always void. Trespass lies where there was no personal delivery by the infant, because when the voidable contract of sale is disafiSrmed, it is made void ah initio, by relation, and affords no justification for acts done under it by the vendee ; but where there has been a manual delivery by the infant, trespass will not lie, because accepting possession from the owner of property, even if he be an infant, can never bo a trespass. In Connecticut, by statute, some contracts of an infant are wholly void. (5) (3.) Subject to the foregoing explanations, the universal principle of law appears to be, that all contracts, executory or executed, (6) of an infant, are voidable or confirraable, or are void or valid, at his -election. (7) A feoffment, a deed of bargain and sale, in fact every species of conveyance by deed, as grant, lease and release, partition, exchange, &o;(8) a deed of inortgage;(9) abond;(10) a negotiable note;(ll) or the endorsement of one; (12) a written (1) Lawrence v. jM'Arter, 10 Ohio, .37, 42; Pyle, Ac, v. Cravens, 4 Little, 17, 21. (2) Bennet v. Diivis, 6 Cowen, 393; Waplea v. Hastings, 3 Harrington, 403; Carnahan et al. r. Alderdice et al , 4 Id., 99. (3) Stafford v. Roof, 9 Cowen, 626, 628; Fonda t>. Van Home, 15 Wendell, 631, 636. (4) See Grace v. Hale, 2 Humphreys, 27, 29; and Hojt v. Chapin et al., Vermont, 42. (5) Maples v. Wightman, 4 Connecticut, 376. (6) Abell V. Warren, 4 Vermont, 149, 162, 153. (7) Oliver et al. <. Houdlet, 13 Massachusetts, 237; Eeed v. Batehelder, 1 Metcalf, 559; and, particularly. Cole v. Pennoyer, 14 Illinois, 161. (8) Tucker et al. i:. Moreland ; Bool v. Mix, 17 Wendell, 120, 131; Eagle Fire Co. v. Lent, 6 Paige, 635, 638; Gillett v. Stanley, 1 Hill's N. Y., 122, 125; Benton v. Saunders 1 Busbee, 360; Kline v. Beebe, 6 Connecticut, 494, 504; Dana et al. v. Coombs, 6 Greenleaf, 89, 90; Lessee of Drake and wife v. Ramsay et al., 5 Ohio, 251 ; Cresinger v. Lessee of Welch, 15 Id., 156, 191 ; Wheaton v. East, 5 Yerger, 4 1 ; Freeman v. Bradford, 5 Porter, 270, 273 ; Breckenridge's heirs I". Ormsby, 1 J. J. Marsh; 11, 236, 242; Wallace's Lessee v. Lewis, 4 Harrington, 75, 80; Lester 1. Frazer, Riley's Chancery, 76, 86; Cole v. Pennoyer, 14 Illinois, 161. (9) Boston Bank v. Chamberlin et al., 15 Massachusetts, 220; Hubbard et al., E.x'rs, c. Cum- mings, 1 Greenleaf, 11; Lynd v. Budd, 2 Paige, 191; Roberts v. Wiggins, 1 New Hampshire, 73; M'Gan v. Marshall, 7 Humphreys, 121, 126. (10) Conroe v. Birdsall, 1 Johnson's Cases, 127. (11) Goodsell D. Myers, 3 Wendell, 47'.l; ILccI v Batehelder, 1 Mctoalf, 559; Hessert). Steiner, 5 Watts &, Sergeant, 476; Wright .'. Steele, 2 New Hampshire, 51 ; Best v. Givens and Wood, 3 B. Monroe, 72, 73; Jefford's Adm'r v. Ringgold A Co., 6 Alabama, 644, 548. (12) Nightingale u. Withington, 15 Massachusetts, 272, 274. TUCKEB ET AL. V. MOEELAND: VASSE V. SMITH. 249 contract to pay, not under seal;(l) an award under a submission by a guar- dian ;('2) indentures of apprenticeship, and other contracts of service ;(3) all judicial acts against an infant, as judgments and decrees, without a guardian, ad litem j(4) and recognizances for others; (5) are not void, but are voidable or confirmable at the option of the infant. An account stated is not void, but voidable or affirmable at option. (6) In Curtin and another v. Pallon and an- other, 11 Sergeant & Rawle, 305, 310, it was said that a contract of suretyship by an infant was void; but as it was held that the obligation might be con- firmed by the infant, it is obvious that the court meant that it was voidable at his election ; [the question whether acts of an infant can create an equitable estoppel, is, notwithstanding, perhaps in some degree unsettled;] (7) and mllinely V. Margaritz, 3 Barr, 428, it is decided that a contract of suretyship by means of a promissory note, by an infant, is voidable or affirmable at his election. A deed by an infant feme covert, executed in a way to overcome the disability of coverture, is yet voidable by her for infancy. (8) An infant feme covert cannot, by joining her husband in a conveyance, bar her right of dower.(9) The fact, that one dealing with the infant supposed him to be of age;(10) or, that the infant fraudulently represented himself to be of age;(ll) or that the infant was in business) and in the habit of contracting for himself;(12) will make no difference in the infant's liability on his contract ; it still cannot be enforced against his will. An infant of marriageable years, marrying an adult wife, becomes at once liable upon her contracts ; for her contracts were valid, being made by an adult, and the husband's liability for them is an incident of the marriage, a contract which the infant was capable of making. (13) [And probably, on this same principle, of the infant being able to assume and perform all the incidents of a contract which in its principal part he can enter into, it has been held in Indi- ana, a state in which the law regards eighteen as a fit age for a girl to marry, (1) Font V. Cathcart, 8 Alabama, 726. (2) Barnaby v. Barnaby, 1 Pickering, 221. (3) Nickerson v. Easton, 12 Pickering, 110, 112; Vent u. Osgood, 19 Id., 672; The State v. Dimick, 12 New Hampshire, 194, 199. (4) Porter's heirs v. Robinson, 3 Marshall, 253, 254; Beeler's heirs v. Bullitt's heirs. Id., 280, 232; Allison v. Taylor, Ac, 6 Dana, 87, 88; Bourne and wife v. Simpson, 9 B. Monroe, 454, 457; Austin «. Charlestown Female Seminary, S Metoalf, 196, 203; Bloom v. Burdick, 1 Hill's N. Y., 131, 143; Barbers. Graves, 18 Vermont, 292. (5) Patchin v. Cromach, 13 Vermont, 330. (6) Williams v. Moor, 11 Meeson & Welsby, 256. (7) 2 Smith's Leading Cases, 653, 5th Am. edition. (8) Phillips et ux. v. Green, 3 Marshall, 7, 11 ; Prewit v. Graves, &a., 5 J. J. Marshall, 114, 120; Oldham v. Sale et al., 1 B. Monroe, 70; Hughes v. Watson, 10 Ohio, 127, 133; Sanford v. M'Lean, 3 Paige, 117, 122; Bool v. Mix, 17 Wendell, 120, 130. (9) Cunningham v. Knight, 1 Barbour, 399, 404. (10) Van Winkle «. Ketoham, 3 Caines, 323. (11) Conroe v. Birdsall, 1 Johnson's Cases, 127; Stoolfoos and another ti. Jenkins and wife, 12 Sergeant & I^awle, 399, 403; Burley v. Russell, 10 New Hampshire, 184; Norris v. Vance, 3 Richardson, 164; Brown v. M'Cuno, 6 Sandford, 228. (12) Tandy v. Masterson's Adm'r, 1 Bibb, 330; Curtin and another v. Patton and another, 11 Sergeant & Rawle, 305, 309 ; Houston u. Cooper, Pennington [866] ; Oliver v. M'Clellan, 21 Alabama, 675. (13) Roach D. Quick, 9 Wendell, 238; Butler v. Breck & Leavitt, 7 Metcalf, 164, 168. 250 INFANCY. independently of her father's or guardian's assent, that having this power to bind herself to marry, she has also power to execute a release of her marriage contract ;(1) though, in general, infancy is a plea in bar of suit for breach of marriage contract; Morris v. Grave, 2 Carter's Indiana, 356. On this last point, however, — infancy as a plea in bar of suit for breach of marriage con- tract, — see Beelman v. Roush, 26 Pennsylvania State, 511.] Where an infant is a party jointly with others to a promissory note or other instrument, the English practice is, after all have been sued, and infancy has been pleaded, to discontinue, and begin another suit against the adults alone, or perhaps in the first instance to omit the infant and sue the adults only, for it is said that on a plea of infancy, neither a nolle prosequi can be entered against the infant, nor a verdict, without it, taken against the others; Burgess V. Merrill, Taunton, 468 ; and this seems to be recognized in Connolly v. As- signees of Hull, 3 M'Cord, 6, 8 : but it is certain that a negotiable instrument given by a firm of which one nq^mber is an infant, is not void as to the infant, but voidable or confirmable by him; (2) and in accordance with this principle, the practice almost universally established in this country is, whenever one of several co-contractors is an infant, to sue all the parties to the joint contract, and if infancy is pleaded by one, or given in evidence, to enter a nolle prosequi as to him, or take issue on his plea, or allow a verdict to go in his favour, and take a verdict, and judgment upon it, against the others; (3) and a suit against the adult alone is erroneous. (4) Infancy cannot be given in evidence under non est factum ;{b) but may under non assumpsit. (Pi) A contract made by an infant is voidable only by himself, during his life, and after his death by his legal representatives ; and not by his sureties, endor- sers, or any strangers; (7) his personal representatives, as his administrators and executors, possess the same power that he has, of avoiding or admitting his contracts; (8) and so do his privies in blood, where the estate upon avoid- ance would vest in them, but not his assignee or other privy in estate unly.(9) A contract, whether executory or executed, between an adult and an infant, is binding on the adult, and voidable only on the side of the infant. (10) On mutual promises to marry, an infant is not liable, -but the adult is, and the (1) Develin v. Riggsbee, 4 Indiana, 466. (2) Whitney et al. v, Dutch et al., 14 Massachusetts, 457. (3) Hartness and another r. Thompson and others, 5 Johnson, 160 ; Woodward v. Newhall et al., 1 Picliering, 500; Tuttle u. Cooper, 10 Id., 281, 288; Cutts v. Gordon, 13 Maine, 474; Allen I'. Butler and others, 9 Vermont, 122 ; Barlow v. Wiley et al., 3 Marshall, 457, 459. (4) Wamsley v. Lindenberger & Co., 2 Randolph, 478; Slocum v. Hooker, 13 Barbour, 536; see the discussions in Mason v, Denison, 15 AVendell, 64, (5) Bool V. Mix, 17 Wendell, 120, 132. (6) Kimball v. Lamson, 2 Vermont, IBS, 144; Wailing v. Toll, 9 Johnson, 141. (7) Oliver et ii\.v. Iloudlet, 13 Massachusetts, 237 ; Parker v. Baker and another, ] Clarke's Chancery, 136; Roberts v. Wiggin, 1 New Hampshire, 73; Slocum v. Hooker, 13 Barb. 536. (8) Hussoy ct al. i.. Jewett, Ex'r., 9 Massachusetts, 100; Jefford's Adm'r v. Ringgold & Co., 6 Alabama, 544, 547; Parsons v. Hill, 8 Missouri, 135. (9) Austin V. Charlestown Female Seminary, 8 Metcalf, 196, 203, citing Wittingham's Case, 8 Coke, 42 b; Breokenridge's Heirs v. Ormsby, 1 J. J. Marshall, 236, 248. (10) Boyden v. Boyden and another, 9 Metcalf, 519, 521; M'Ginn v. Shaeffer, 7 Watts, 412, 414. TUCKER ET AL. V. MORELAND: VASSE V. SMITH. 251 infant's voidable promise is a sufficient consideration. (1) An infant isnot liable without affirmance, in covenant upon indentures of apprenticeship, nor in assumpsit on a parol apprenticeship; (2) yet the adult is bound to, and if the consideration be performed, is suable by, the infant, on such contracts. (3) The affirmance, of contracts made during infancy, may take place in different ways. An executory contract of an infant, at least a parol contract, may, after full age, be ratified by parol ; but a ratification, when by parol, must be actual and express. There is an entire difference between the ratification of a contract made during infancy, apd an avoidance of the statute of limitations ; for the former, a mere acknowledgment, or partial payment, will not be sufficient : there must be either an express promise to pay, or such a direct confirmation as expressly ratifies the contract, although it be not in the language of a formal promise.(4) [Where the defence interposed is that of infancy, said Eastman, J., in a New Hampshire case,(5) "a more stringent rule prevails than where the defence is the statute of limitations. To sustain an action against a person of full age, on a promise made by him when an infant, there must be an ex- press ratification, either by a new promise to pay, or by positive acts of the individual, after he has been of age a reasonable time, in favor of his contract, which are of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise." But it may, notwithstanding, be doubted whether any acknowledgment which would take a case out of the statute of limitations, will not be equally binding where the contract of an infant is in question, if made for the purpose of affirming and recognizing its validity, and with full knowledge that it is not binding unless ratified.] In a late case which concerned the ratification of an acceptance, the Court of Exchequer gave the following definition: "We are of opinion (apart from Lord Tenterden's act), that any act or declaration which recognises the existence of the promise as binding is a ratification to it, as, in the case of agency, anything which recog- nises as binding an act done by an agent, or by a party who has acted as agent, is an adoption of it. Any written instrument signed by the party, which in the case of adults would have amounted to the adoption, of the act of a party acting as agent, will in the case of an infant who has attained his majority amount to a ratification. "(6) The ratification must be before the commence- ment of the suit;(7) it must be voluntary, deliberate, and intelligent, in the knowledge that without it, he is not bound, and it must 'not be made under (1) Holt V. Ward, Glarencieux, 2 Strange, 937; Hunt v. Peake, 5 Cowcn, 475; WiUard ii. Stone, 7 Id., 22; Cannon v. Alsbury, 1 Marshall, 76; Pool v. Pratt, Chipman, 252. (2) M'Knight ». Hogg, 3 Brevard, 44; Frazier v. Rowan, 2 Id., 47. (3) Eubanks v. Peak, 2 Bailey, 497, 499. (4) Wilcox V. Roath, 12 Connecticut, 551, 556 ; Gay v. Ballou, 4 Wendell, 403, 405 ; Millard V. Hewlett, 19 Id., 301, 302; Martin v. Mayo et al., Ex'rs., 10 Massachusetts, 137, 140; Whit- ney et al. V. Dutch et al., 14 Id., 457, 460; Thompson et al. v. Lay et ux., 4 Pickering, 48; Pierce v. Tobey and another, 5 Metcalf, 168, 172 ; Smith and others ti. Kelley, 13 Id., 309, 310 ; Buzzell V. Bennet, 2 California, 10. (5) Tibbets v. Gerrish, 5 Foster, 41. (6) Harris v. Wall, 1 Exchequer, 122, 129. (7) Ford V. Phillips, 1 Pickering, 202; Goodridge and another v. Ross, 6 Metcalf, 487, 490; Merriam et a. v. Wilkins et a., 6 New Hampshire, 432; Hale t. Gerrish, 8 Id,, 374; Thing v. Libbey, 16 Maine, 55, 57. 252 IN" FANCY. terror of arrest. (1) [But it has been held in one case that in the absence of any proof to the contrary it is to be presumed, that at the time of making the new pro- mise, the person, lately an infant, was aware of his rights, and knew the facts ne- cessary for his defence.] (2) If the promise be conditional, it must be shown that the condition has been fulfilled according to its tenor,(3) [when the ratifica- tion will take effect as if originally absolute.] (4) And it must be made to the party himself or his agent, for a mere declaration of an intention to pay, made to a stranger having no interest or authority in the matter, is ineffective. (5) A clause in a will directing all just debts to be paid, was decided at law not to be a confirmation of a promissory note;(6) but a court of equity held, (7) in the case of a bond and mortgage, that it amounted to a confirmation. (8) By st. 9 Geo. IV., c. 14, §. 5, no action can be maintained to charge any person upon a promise after age to pay a debt contracted during infancy, or on any ratification after age of a promise or simple contract made during infancy, unless the promise or ratification be in writing signed by the party to be charged. (9) It was decided in Baylis v. Dineley, 3 Maule & Selwyn, 477, that an infant's bond, or at least one that expressly secured the payment of interest, could not be confirmed by parol, but only by something amounting to an estoppel in law of as high authority as the deed itself. But this seems to imply that such a bond is void. It is difficult to see, upon this decision, what express confirma- tion of an infant's bond there can be. It is probable that neither an express acknowledgment under seal that the bond was valid, nor an express confirma- tion of it by instrument under seal, could be replied as an estoppel in law. There seems to be no doubt that there may be an express confirmation of an infant's bond ; but why need it be under seal ? The authority of Perkins, title, Deeds, sec 154, page 69, edit. 17G2, which is relied on by Lord Mans- field in Zouch V. Parsons, Burrow, 1805, is express, that if an infant have once made and delivered a deed, and afterwards when he comes to full age, delivers it again as his deed, the second delivery is void. The execution therefore was good, and continues to be good; a confirmation is not required for the purpose of setting up the instrument as the party's deed ; a confirmation could have no action or effect upon its character as a deed. It is not the execution of the instrument, that, in the case of an infant, is tainted with infirmity; it is not against the execution, specifically, that the avoiding effect of the plea acts, for, if it were, non est factum, which goes to the time of plea pleaded, would be a good avoidance : it is the contract, evidenced by the deed, — the mental con- sent — which in the ease of an infant is revocable, and, which by the plea of infancy, is recalled. There is an entire difference between a plea of a discharge (1) Ford V. Phillips; Curtin and another v. Patton and another, 11 Sergeant & Rawle, 305, 311; Hinely v Margaritz, 3 Barr, 428. (2) Taft V. Sergeant, 18 Barbour, 321. (3). Thompson et al. v. Lay et ux. ; Eyersou v. Carpenter, 17 AVendell, 419, 422. (4) Tibbets ». Gerrish, 54 Foster, 41. (5) Goodsell i. Myers, 3 Wendell, 478; Bigelow v. Grannis, 2 Hill's N. Y., 120; Holt v. Underbill, 9 New Hampshire, 437 ; 10 Id., 220. (6) Smith D. Mayo et al., Ex'rs., 9 Massachusetts, 62. (7) Merchants' Fire Ins. Co. v. Grant, 2 Edwards, 644, (8) Ace. Abr. Eq. Ca., 282, C. 5, citing Nelson's Ch. Rep., 55. (9) See Hartley v. Wharton, 11 Adolphus & Ellis, 934. TUCKEE ET AL. V. MOEELAND: VASSE V. SMITH. 253 under a decree of baakruptcy, and a plea of infancy. The former is in the nature of a plea of a release by the operation of proceedings in a judicial tri- bunal : a bond of a bankrupt is discharged in law, from the time of the certifi- cate, which the plea shows as a foregone fact ; and a bond so discharged, can- not, probably, be set up as a bond by any parol promise; though even on this point the decisions appear to be in conflict. (1) But a plea of infancy operates by its own force as an averment or declaration of record, and from the time that it is pleaded, as an expression of the party's election to treat the bond as void. If there were wanted an estoppel against a deed of release, or against a judicial or statutory discharge of the obligation, or an avoidance of the effect of such a bar, it would be reasonable to require it to be by something of as high a nature as the bond itself : but what is wanted is, something that shall avoid or nullify the effect of the party's declaration in court, by plea of his election to treat the bond as void. What is called a confirmation or ratification of an infant's contract is not an estoppel, nor is it pleaded as an estoppel, in any case; it operates indeed in the nature of an equitable estoppel. An infant's bond is a valid obligation unless the infant, after age, elect to treat it as void : a confirmation or ratification, as it is called, defeats the election by plea to avoid, by showing that the party has already exercised his right of election, and has elected not to treat the contract as void, but to treat it as valid. If an elec- tion to treat a promissory note as valid may become fixed by a parol promise, so that the party cannot afterwards change his election, may not an election in the ease of a bond be determined in the same manner ? If parol matter acting in the nature of an equitable estoppel, will toll the right of avoiding the lia- bility or of pleading the plea of infancy, in case of one kind of contract, will it not by the same operation toll the same right in case of any other kind of con- tract ? The operation of a confirmation, or ratification, in case of an infant's contract of any character, is not to impart to it anything which did not exist in it before, but merely to take from it, its quality of voidableness : and if a bond by an infant, be voidable, in just the same sense, and for just the same reasons, that a simple contract, is, which seems to be the case, the same circum- stances ought to obviate the voidableness of both If an express promise by parol to pay a bond given during infancy to be made after full age, can it be doubted that such a liability must be enforceable in some way ? Yet there can be no remedy but on the bond, for certainly assumpsit will not lie. If the party promise to pay a part of the indebtedness upon such bond, assumpsit upon the consideration so acknowledged by the promise would be the remedy, the promise to pay but a part, necessarily avoiding the bond as an entire obligation ;(2) but upon a parol promise to pay the whole bond, assumpsit will not lie, for it cannot be maintained unless the bond is void, and where the infant has not only not avoided it, but has expressly promised to pay it, the other party cannot treat it as void. Regarding it as conclusively settled in this country, that an infant's bond is merely voidable, it does not seem that the doctrine of Buylis v. Dineley, can consistently be adopted in this country : and it is believed, that, in the American courts, a bond or other sealed instrument, given by an infant, may be confirmed by a parol or verbal promise after full (1) Compare Maxim v. Morse, 8 Massachusetts, 127, with The case of Field's Estate, 2 Rawle, 351. (2) Bliss et al. n. Ferryman, 1 Soammon, 484. 254 INFANCY. age. See West v. Penny, 16 Alabama, 187, [also Stokes v. Brown, 4 Chand- ler's Wisconsin 39, in which on a plea of infancy, and replication of ratification, after full age, and issue, the court held in effect, that anything done by the maker indicating to the other party his intention and willingness to pay was sufficient.](l) An election to confirm his executory contracts may, however, be implied from the acfe of the infant when he has become of age; as, by enjoying or claiming a benefit or advantage under a contract or transaction which he might have wholly rescinded ;(2) and so, in case of indentures of apprenticeship, remaining in the service voluntarily for more than a year after becoming of age, without dissent, and receiving pay, has been held to be a confirmation of the contract. (3) If an infant confirms part of a contract, by appropriating the benefit of it, he confirms the whole. Thus, if during infancy, he sold a horse with warranty and took the purchaser's note, and after age sues upon the note, he thereby confirms the sale so as to make himself liable on the warranty. (4) In Miller & Co. v. Sims & Ashford, 2 Hill's So. Car. 479, it was held that au infant partner who afterwards confirmed the contract of partnership by trans- acting the business, receiving the profits, &c., became thereby liable on all the previous liabilities of the firm, even such as were not known to him : but this case seems to be questioned in Dana and others v. Stearns and others, 3 Gush- ing, 372, 375; and it is in conflict with Crahtree v. May, 1 B. Blonroe, 289 ; where it was decided that by such conduct an infant rendered himself liable for only such contracts as there was evidence that he had knowledge of, and knew that he was looked to as a party liable on. In Orvis v. Kimball, 3 New Hampshire, 314, while it was admitted that a mere declaration of intention to pay a note given during infancy, not made to the creditor himself, would not confirm the note, it was held that the fact of employing an agent to find the note and authorizing him to pay it, amounted to a confirmation : but if these circumstances were not communicated to the creditor, perhaps this doctrine would not be applicable. In Best v. Givens &• Wood, 3 B, Monroe, 72, an infant had incurred a debt, part of which was for necessaries, and had given a promissory note for the whole ; being sued on the note, he pleaded infancy ; being sued afterwards on the consideration, he relied on the merger by the note; and it was held that this confirmed the note, and might be replied as a confirmation of the former suit. This might very well have been relied upon as a confif mation by estoppel; for a confirmation by an act operating as evidence of intention, and not as an estoppel, as well as a confirmation by parol, must be before suit brought.(5) Where a contract is entire, a confirmation by acts, extending to part of the consideration, would generally confirm the whole con- tract, but a confirmation by parol promise may be of part, and will not render the party liable beyond the extent of the promise ; Ihid. : in case of such a (1) In this Wisconsin case, the infant, after coming of full age, stated, on the note's (a sealed note) being presented to him, "that he had a crop of corn, and would make payment in that commodity. The plaintiff agreed to take the corn as for the payment of the note and the price was agreed on." (2) Barnaby v. Barnaby, 1 Pickering, 221, 223. (3) The State v. Dimick, 12 New Hampshire, 194, 199. (4) Morrill v. Aden, 19 Vermont, 606. (5) Aldrich v. Grimes, 10 New Hampshire, 194, 198, TUCKER ET AL. V. MORELAND: VASSE V. SMITH. 255 partial promise, the suit must of course be on the consideration as acknowledged by the promise, which must be considered as avoiding the entire contract ; but where a contract has been entirely confirmed by a promise, the suit must be on the original contract. [Where a party promises to pay in money part of a note given in infancy, and to "turn out" the note of a third person, it has been con- sidered a ratification of the whole note, and on his failure to "turn out" the note of the third party, that he became liable for its whole amount.](l) In regard to the implied confirmation of executed contracts, by acts or conduct after age, there is a difference between the case of a sale and the case of a pur- chase, and perhaps between a purchase of chattels and a purchase of land, upon the ground of the general principle that appropriating after full age a benefit from a contract made during infancy, confirms it. A purchase of a chattel by an infant is confirmed by any unequivocal act of ownership exercised by him over the chattel, after he is of age, as by selling it, or by otherwise converting it to his use ; so that he will be liable on a note given during infancy for the chattel ; Cheshire v. Barrett, 4 M'Cord, 241 ; Deason cfec. v. Boyd &c., 1 Dana, 45 ; Lawson v. Lovejoi/, 8 Greenleaf, 405 ; and keeping possession of the chattel for several years, or beyond a reasonable time, with a con- tinual assertion of ownership, is of itself a sufficient confirmation. (2) Where the defendant, while an infant, drew an order, and gave it in part consideration for the note of another person residing out of the state ; and, after he had attained his majority, went to the latter state to demand payment of the note which he had purchased, and for which he gave the order in question ; and received notice of the non-payment of the order, and sufiFered several years to elapse, and never offered to return the note or disaffirm the contract; the court held that these acts and omissions warranted the implication that the defendant intended to abide by his undertaking, and were sufficient, in the absence of anything to counteract their efiect, to establish an affirmation of the contract, and take away the defence of infancy. (3) Where a chattel had been bought by an infant, subject to the right of returning it if it was not liked, the pur- chaser after full age retaining it for two mouths after being requested by the vendor to return it if he did not like it, has been deemed a confirmation of the purchase. (4) But in order that the jury may infer a ratification from the act of the minor, after age, it must be a voluntary act manifesting his intention to keep the property, when he has the power to keep or relinquish it, at his elec- tion ; and if he had not actual possession and control of the goods, and made no sale or disposition of them after coming of age, and before action brought, the non-return of the goods, from circumstances not under his control, would not be sufficient evidence of a ratification :(5) accordingly, if he had sold or wasted the property during his minority, he would not be liable as upon a rati- fication; (6) and where he had during infancy sold apart of the goods, and assigned the residue as security for a debt, and remained in possession after (1) Taft t'. Sergeant, IS Barbour, 322. (2) Alexander v. Heriot, 1 Bailey's Equity, 223; Eubanksv. Peak, 2 Bailey, 497, 499 ; Boy- den V. Boyden and another, 9 Metoalf, 519. (3) Thomasson v. Boyd, 13 Alabama, 419, 421. (4) Afdrich v. Grimes, 10 New Hampshire, 194. (6) Smith and others v. Kelley, 13 Metoalf, 309, 310. (6) Dana and others v. Stearns and others, 3 Gushing, 372, 376. 256 INFANCY. age as agent of the assignee, such possession was held not to amount to a con- firmation, nor to render the party liable on a note given for the goods. (1) Upon sales of chattels, executed on the part of the infant, such an act as suing for, or receiving, the purchase-money after age, will be a confirmation ; (2) and though mere non-disafiirmance is not a confirmation, yet acquiescence for a long time under circumstances equitably implying a ratification, — that is, under circumstances which render silence an act of fraud — is reasonable evidence of a confirmation. In Delano v. Blake, 11 Wendell, 85, it was held that an infant's receiving the note of a third person in satisfaction of a debt for services, and retaining it after age for eight months, and until the party liable upon it had failed, amounted to a confirmation; but as this was a contract executed on both sides, there was a sufficient bar to the right of recovering the consideration, in the infant's inability to place the purchaser in the situation he was in before the sale, the holder of the note being necessarily liable for the loss occasioned by his neglect to demand payment of the note in due season. In Meriioeather' s adm'r v. Herran, &c., 7 B. Monroe, 162, 165, in chancery, the court said, that, on a sale of personal interests, the right of avoidance would be lost " by such continued acquiescence as might afibrd an implication of confirmation or waver, or by the failure to assert the right for such a length of time, as in anal- ogy to the statute of limitations, and in view of its purpose, of giving repose to society, should operate, according to the principles and practice of a court of equity, to prevent its future assertion." As to wnat amounts to a confirmation generally, see Norris v. Wait, 2 Richardson, 148; Norris v. Yance, 3 Id. 164. In regard to the confirmation of contracts relating to real estate, see the general principles stated in Phillips, dsc, v. Green, 5 Monroe, 344, 354 : a purchase or hiring of land, or a reservation of a rent, is confirmed by retaining possession of the land beyond a reasonable time, or receiving the rent, after age;(3) or by selling it after age to a stranger; and if an infant buys land and mortgages it at the same time, and the whole is one transaction, the retain- ing possession of the land beyond a reasonable time is a confirmation of the mortgage, but it is not so where the mortgage is a subsequent and distinct transaction. (4) Where land has been sold by an infant, it was said, in Kline V. Heche, 6 Connecticut, 494, where the acquiescence was for thirty-five years, that the infant ought to declare his disalfirmance within a reasonable time, and similar dicta may be found in other oases ;(5) but there seems to be no doubt, upon the decided cases, that mere acquiescence is no confirmation of a sale of lands, unless it has been prolonged for the statutory period of limitation, and that an avoidance may be made any time before the statute has barred an entry;(6) and slight or vague declarations will not amount to a ratification;(7) (1) Thing 11. Libbey, 16 Maine, 65. (2) Boody V. M'Kenney, 23 Maine, 517, 525. (3) Boody V. M'Kenney, 23 Maine, 517, 524; Bigelow v. Kinney, 3 Vermont, 353, 359; Bob- bins V. Eaton, 10 New Hampshire, 562, 566. (4) Hubbard et al., Ex'rs v. Cummings, 1 Greenleaf, 11 ; Dana et al. v. Coombs, 6 Id., 89; Bobbins v. Eaton, 10 New Hampshire, 562 ; Lynde v. Budd, 2 Paige, 191 ; Bigelow v. Kinney, 3 Vermont, 353 ; Richardson v. Boright, 9 Id., 368. (5) Holmes v. Blogg, 8 Taunton, 35 ; Kichardson v. Boright, 9 Vermont, 368. (6) Tucker et al. v. Moreland ; Lessee of Drake and Wife v. Bamsay et al, 5 Ohio, 251, 255; Cresinger v. Lessee of Welsh, 15 Id., 156, 193; Boody v. M'Kenney, 23. Maine, 517, 523, 524. (7) Glamorgan et al. v. Lane, 9 Missouri, 447, 473. TUCKER ET AL. V. MOEELAND: VASSE V. SMITH. 257 there may, however, be an acquiescence and assent under such circumstances as to amount to an equitable estoppel upon the vendor ;(1) thus, in Wheaton v. Uast, 5 Yerger, 41, 62, it was held, where an infant had sold land, and after coming to age saw the purchaser making large expenditures in valuable im- provements, and said nothing in disaffirmance for four years, that the "circum- stances were such as not to excuse this long silence ;" and there being evidence that on several occasions the vendor had said, after age, that he had sold the land and been paid for it, and was satisfied, and had authorized a proposition to be made for the purchase of the land, it was held that the sal^ was confirmed. And in like manner, Wallaces Lessee v. Lewis, 4 Harrington, 75, 80, it was held, that an infant's acquiescing in a conveyance for four years after age,and seeing the property extensively improved, would be a confirmation. (2) Though mere lapse of time will not be a confirmation, unless continued for twenty-one years, yet the lapse of a less period in connection with other circumstances may amount to a ratification. (3) A recital in another deed by the grantor when of full age, of the prior deed, with an expressed design to confirm it, has been held to operate as a confirmation. (4) As to (he time and manner of avoiding contracts. In cases of sales of land, the infant may enter under age and hold and take the profits, but cannot conclusively avoid the conveyance till he is of age;(5) and the avoidance, then, may be by entry, ejectment, writ dum fuit infra seta, tern or special plea, or by any act unequivocally manifesting an intention to avoid ; a resale after age by the infant will avoid a previous bargain and sale, if the first grantee be not in actual possession, but if there be an adverse pos- session, then, in those states where one out of possession cannot sell, there should be an entry by the grantor.(6) But in McGan v. Marshall, 7 Hum- phreys, 121, 126, it was held, that the principle of one deed being avoided by another deed for the same property after age, must be understood of absolute deeds inconsistent with one another, whereby it becomes manifest that it was the intention of the party to disaffirm the former deed ; and that a mortgage of lands during infancy is not avoided by a subsequent mortgage or deed of trust, of the same lands after full age ; for it may be that the estate is of much greater value than the debt secured by the first mortgage ; and as the second mortgagee would obtain the benefit of such additional value, the execution of the second mortgage would not necessarily indicate an intention to avoid the previous one. It was said also, in this case, that a second deed which was void, would not avoid a prior deed, [and in consistency with this same principle it (1) Hartman v. Kendall, i IntKana, 403; 2 Smith's Leading Cases, 5tli Am. ed., 653. (2) And see Jones v. The Phoenix Bank, 1 Selden, 235. (3) Cresinger v. Leasee of Welch, 16 Ohio, 166, 193 ; Norris d. Vance, 3 Kiohardson, 64. (4) Phillips, Ac, V. Green, 6 Monroe, 344, 355. (5) Stafford i\ Roof, 9 Cowen, 626, 628 ; Bool v. Mix, 17 Wendell, 120, 132 ; Mattheirson and Wife v. Johnson and others, 1 Hoffman's Chancery, 660, 565. (6) Tucker et al. v. Moreland ; Jackson v. Carpenter, 11 Johnson, 539 ; Jackson v. Burchin, 14 Id., 124; Bool v. Mix, 17 Wendell, 120, 133; Inhabitants of Worcester v. Eaton, 13 Massa- chusetts, 371, 375; Roberts v. Wiggin, 1 New Hampshire, 73, 75 ; Phillips et ux. v. Green, 3 Marshall, 7, 14; SCott v. Buchanan, 11 Humphreys, 469; Lessee of Drake and Wife v. Ram- say et al., 5 Ohio, 251, 253; Cresinger v. Lessee of Welch, 15 Id., 156, 192; Harris v. Cannon and another, 6 Georgia, 382; Dominiok v. Michael et al., 4 Sandford, 376. VOL. I. — 17 258 INFANCY. has been decided where a minor, owning one undivided portion of two tracts of land, conveyed it, and afterwards, having acquired by the death of a brother intestate another portion of the same two tracts, conveyed on coming of age, " all her right, title and interest estate, claim and demand, in law or equity, in possession or expectancy, remainder or reversion of, in and to the said two tracts," — that the first deed was not avoided.] (1) Contracts of a personal kind, or relating to personal property, may be avoided, under age and immediately ; otherwise irreparable injury might ensue ;(2) and the avoidance may be by any act clearly demonstrating a renun. ciation of the contract, as, in case of a contract of apprenticeship, leaving the service and going elsewhere.(3) The right of an infant to avoid his contracts is an absolute and paramount right, superior to all equities of other persons, and may therefore be exercised against hona fide purchasers from the grantee. (4) In regard to the consequences of avoiding the contract, we may consider sepa- rately, the cases where the contract is executory on the part of the infant, and where it has been executed by him or by both. — Every executory liability may be avoided by an infant ; but where the contract had been executed by the adult, and the infant had received possession, and then would avoid his liability upon it, he must surrender the consideration, if it be in his possession or con- trol. It is a settled rule that an infant cannot be permitted to retain property purchased by him, and, at the same time, repudiate the contract upon which he received it. Accordingly, where one partner, upon the dissolution of the firm, conveyed all his interest in the firm eflfeots to the other who was an infant, upon condition that he would pay the firm debts, and the latter avoided this obligation on the ground of infancy, it was decided that the other partner had a right to insist that his original interest on the effects should be applied to pay the debts in the same manner as if the dissolution had not taken place. (5) A distinction, therefore, arises between the case in which the infant is in pos- session after age, and where he has wasted, sold, or otherwise ceased to be in possession of the property, before arriving at age. In the former case, we have .seen that by selling or otherwise putting the property out of his power, he confirms the contract, as, in Cheshire v. Barret, Laioson v. Lovejoy, &c., and it would probably be the same if, having possession, he refused to deliver it on demand; and it may be doubted whether the confirming eifect of such a con- version could be countervailed by a mere parol disafiirmance of the liability, if the other party chose to treat the act as an affirmance ; but if he has actually ■disaffirmed the contract, as by defeating payment at law, or, if having disaf- firmed by parol, the adult chooses to treat his words as a disaffirmance, and he still keep possession, the other, after demand and refusal may maintain trover, (1) Jeffries v. Hager, 18 Missouri, 272. (2) Stafford v. Roof, 9 Cowen, 626, 628 ; Sliipman «. Horton, 17 Connecticut, 481, 483 ; Carr V. Clongh, 6 Foster, 291 ; Willis «. Twambly, 13 Massachusetts, 204, 205 ; Bailey v. Bam- berger, 11 Kentucky, 114; dictum contra in Boody v. M'Kenney, 23 Maine, 517, 525; and see Farr i'. Sumner, 12 Vermont, 28, 31. (3) M'Gill u. Woodward, 1 Constitutional E. So. Car., 468 ; S. C, 3 Brevard, 401 ; Vent v. Osgood, 19 Pickering, 672, 673; see Heath v. West, 199. (4) Myers et al. v. Sanders' Heirs, 7 Dana, 606, 521 ; Hill ». Anderson, 6 Smedes &, Marshall, 216, 224. (5) Kitchen v. Lee, 11 Paige, 107; and see Heath v. West, 8 Foster, 108; Bailey ti. Bam- berger, 11 Kentucky, 115. TUCKER ET AL. V. MORELAXD: VASSE V. SMITH. 259 or may bring replevin or detinue ; for the effect of avoidance is to revest the property in the vendor.(l) But if he has during infancy wasted, sold, or otherwise ceased to possess the property, these acts done in infancy cannot be a conversion, because he then held the goods under an executed transfer of property which authorized him to use and dispose of them as owner, and a refusal after age to deliver on demand, when he has not the goods, is not a con- version, and trover will therefore not lie : and this just and sound distinction is taken in the very clear opinion in Fitts v. Hall, 9 New Hampshire, 441, 446; and recognised in Rohhins v. Eaton, 10 Id. 562, 565, and Boody v. McKenney, 23 Maine, 517, 525, 526 ; nor can detinue be maintained, for it lies not where the goods, though once in possession, have been parted with in a manner author- ized by law : in such case, therefore, he may avoid the contract without being made liable for the consideration in an action sounding in tort. (2) [Bartholo- mew V. Finemore, 17 Barbour 429, was a case where the father of an infant, rather than the infant himself, had traded other property for a horse, which the infant took and which he misused and injured; and therefore when the infant came of age he was not allowed to recover the original property, he being una- ble to return the horse statu quo. The decision, in view of the father's original action in the case, seems to have been right. It was not the case of an infant at all.] Where a contract has been executed on the side of the infant, and he avoids it, he may recover from the other party. If services have been performed by the infant, in partial or entire execution of an express contract, and he avoids the contract, he may recover in quantum meruit the value that his services have been upon the whole state of the case. (3) The case of McCoy v. Huffman, 8 Cowen, 84, (upon the authority of which Weeks v. Leighton, 5 New Hampshire, 43, and Harney v. Owen, 4 Blackford, 337, were decided,) denied the right of recovery where money has been paid or services performed under a contract which is afterwards avoided; but this case was grounded on Holmes v. Blogg, 8 Taunton, 508, which is essentially overruled by Corpe v. Onerton, 10 Bingham, 252, where it is decided that an infant having avoided a contract from which he has received no benefit, may recover back money which he has paid under it ; and in Medhury v. Watroiis, 7 Hill, 110, McCoy v. Huffman, is itself overruled, leaving the New Hampshire and Indiana oases without any support from authority. [They were accordingly abandoned in Dallas v. Hollingsworth, 3 Indiana 537, where Vent v. Osgood was cited and followed as the true law.] ' In Wliitemarsh v. Hall, 3 Denio, 375, it was held that, in such cases, the infant might recover the full value of his services, without any abatement for the injury he may have done by the breach of the express contract. In case of a purchase executed on both sides, the infant renouncing the purchase, may recover back the purchase- money ; (4) and in case of an executed sale or ex- (1) Badger v. Phinney, 15 Massachussetts, 359, 364 ; Boyden v. Boyden and another, 9 Met- calf, 619 ; Jefford's Adm'r r. Ringgold &, Co., 6 Alabama, 544, 548. (2) See Brawner and Wife i-. Franklin et al., 4 Gill, 463. (3) Moses V. Stevens, 2 Pickering, 332; Vent i: Osgood, 19 Id., 572; Voorhees v. Wait, 3 Green, 343, 344; Thomas ti. Dike, 11 Vermont, 273; Judkins v. Walker, 17 Maine, 38; Med- bury V. Watrous, 7 Hill, 110. (4) Bigelow r. Kinuey, 3 Vermont, 353, 358. 260 INFANCY. change, he may recover back the article sold or given in exchange ;(1) and in such cases he must restore the purchase-money or other consideration; (2) [or put the defendant generally, statu quo, in reference to injuries or risk of the whole case;](3) and when an infant goes into chancery after age to set aside his conveyance, he must offer in his bill to restore the purchase-money ;(4) for the only reason why the rescission of a contract in any case gives a right to recover what has passed by the contract, is, that the consideration of such transfer has totally failed; and unless the party is restored to the situation which he was in before, the consideration has not wholly failed as to him ; in other words there can be no avoidance by parol so as to give a right to recover back property once lawfully transferred and vested, so long as any part of the consideration is withheld. (5) In Farr v. Sumner, 12 Vermont, 28, an infant bought on credit, and gave a chattel in satisfaction of the debt, and, when he was of age, brought trover to recover the chattel ; and it was held that, while retaining the consideration, be could not do so. In Taft & Co. v. Pike, 14 Id. 405, it was held that where an infant worked for hire, and was partially paid in property, he could not recover the full price of his labour, without return- ing, or allowing for, the articles received. In Euhanks v. Peak, 2 Bailey, 497, 499, there was a debt from the adult for services, for which property was received in satisfaction, and a release given by the infant, and the infant after- wards expressed himself satisfied, and kept the property ; and it was decided that this was a confirmation of the settlement and release, and barred the infant's right of action for the original debt. And in Walker v. Ferrin, 4 Vermont, 523, 527, it was declared that a receipt by an infant of satisfaction of a debt, and a release thereupon, are binding upon him where he retains the satisfaction. Upon a similar principle, it was held in Baker v Lovett, 6 Massa- chusetts, 78, that an infant upon whom an assault has been committed, and who has accepted a sum of money in satisfaction and release of damages, may set aside the release and bring trespass; but that if the jury find that the money received was an adequate compensation for the injury, they are to assess nomi- nal damages, but if inadequate, they will give such further sum, as, with that previously received, will amount to a reasonable satisfaction. — To the same principle, that an executed transaction cannot be rescinded so as to give a right of action, out of it to the infant, unless the other party is restored to his rights, may be referred probably the case of an endorsement of an infant payee to transfer a right, upon which the payment is made to the endorsee. The infant cannot set aside his endorsement as void, and recover as payee, because the transaction has become executed in favour of his appointee, and cannot be res- cinded and opened, unless the maker of the note is placed in the same situa- tion that he was before. (6) In Weed v. Beehe et at, 21 Vermont, 495, 500, the general principle is de- (1) Williams ■!). Norris, 2 Little, 157,158; Hill v. Anderson, 5 Smedes & Marshall, 216; Grace v. Hale, 2 Humphreys, 27. (2) Smith V. Brans, 6 Humphreys, VO ; Badger v. Phinney, 15 Massachusetts, 369, 363. (3) Breed v. Judd, 1 Gray, 455; and see C.irr r. Clough, 6 Foster, 280. (4) HiUyer ». Bennett, 3 Edward's Chancery, 222. (5) See Brawner and Wife v. Franklin et .al., 4 Gill, 463. (6) See Dulty v. Brownfleld, 1 Barr, 497; Willis v. Iwambly, 13 Massachusetts, 204, 205; Nightingale v. Withington, 15 Id., 272, 274. TUCEEE ET AL. V. MORELAND: VASSE V. SMITH. 261 clared, that an infant cannot avoid that part of his contract, which binds him, without also avoiding that part which is in his favour. If he purchase land, and execute notes for the purchase, or a mortgage of the land to secure the purchase-money, he cannot disaffirm the notes and mortgage, and claim the land under his deed ; and, if he sell land and take notes, he cannot avoid his deed and compel payment upon his notes; and the good sense and equity of this doctrine (it was said) are too apparent to require any reasoning or authority to support it. For mere torts, an infant is legally liable, as an adult is.(l) "If an infant commit an assault, or utter slander," said Lord Kenyon, in Jennings v. Ran- dall, 8 Term, 337, " God forbid that he should not be answerable for it in a court of justice." Accordingly, an infant is liable in trespass for an assault,(2) though his infancy might in some cases be evidence to show that the act com- plained of was an inevitable accident;(8) he is liable also for a constructive trespass, as by procuring another to commit a trespass; (4) and civilly for a trespass committed by command of his father, though from the want of inten- tion he might not be liable criminally. (5) In Wallace v. Morse, 5 Hill's N. Y. 391, an infant who obtained goods fraudulently without intending to pay for them was held to be liable for the fraud. [So where he had obtained goods with this intent, by making the vendor drunk.] (6) And in general, when money or goods have gone into an infant's hands without contract and wrongfully, or are retained by him wrongfully, they may be recovered. (7) But a liability really ex contractu, though infected with fraud, cannot be changed into a tort, by altering the form of the action; for the substantial ground of the liability is regarded by the law, and not merely the form which the action assumes. (8) But as to the mode of avoiding the liability ex contractu, when urged in the form of an action ex delicto, some distinctions exist in con- sequence of differences in pleading. In an action on the case, the declara- tion shows upon its face, that the tort is merely constructive, being in effect but a breach of contract; the action, therefore, cannot be maintained at all, after the fact of infancy appears; in other words, a plea of infancy is a bar, and evidence of infancy under the general issue a conclusive defence. It has been determined, therefore, that an action on the case against an infant for injuries done negligently or wrongfully to goods entrusted to him under any kind of bailment,(9) or for fraud or fraudulent warranty on a sale,(10) will not lie. The case of Word v. Vance, 1 Nott & M'Cord, 197, that case for deceit in a warranty on an exchange of horses, and Peigne v. Sutcliffe, 4 M'Cord, 387, that case for the embezzlement of goods confided to carry, will lie against (1) Hartfield v. Roper, 21 Wendell, 615, fi20 ; Brown t;. Maxwell, 6 HilFe N. Y., 592, 694. (2) School District v. Bragdon, .? Foster, 516. (3) Bullock V. Babcook, 3 Wendell, 391. (4) Sikes k. Johnson and others, 16 Massachusetts, 389. (5) Humphreys v. Douglass, 10 Vermont, 71. (6) Walker v. Davis, 1 Sray, 506. (7) Bristow et al. v. Eastman, 1 Espinasse, 172 j Mills v. Graham, 1 New, 140; Oliver «. M'Clellan, 21 Alab., 677. (8) The People i: Kendall, 25 Wendell, 399, 401. (9) Vasse v. Smith ; Schenks v. Strong, 1 Southard, 87 ; Campbell v. Stakes, 2 Wendell, 138, 143. (10) Brown v. Dunham, 1 Root, 272; West v. Moore, 14 Vermont, 447. 262 INFANCY. an infant, are clearly wrong; and indeed in Evans v. Terry, 1 Brevard, 80, that doctrine seems to have been held by but two judges out of five. In Filli V. Hall, 9 New Hampshire, 441, a distinction is suggested of this nature, that an infant is not liable in case for any fraudulent affirmation that makes a part of the contract, as for a fraudulent representation as to the quality of goods, but that for fraudulent representations anterior or subsequent to the contract, and not parcel of it, he is liable : and upon this it was decided, that for an affirmation that he is of age, by which a contract is afterwards made with him, an infant is liable in case ; [and the principle was followed in a ease of a differ- ent character, Towne v. Wilei/, 23 Vermont, 359. ](1) These decisions, or rather the former one, which directly overrule Johnson v. Pie, 1 Levinz, 169, are clearly unsound : Tand a decision directly contrary to Fitts v. Ball having been made in Brown v. M' Cune, 5 Sandford, 228, are of no authority out of New Hampshire and Vermont.] In Fitts v. Ilall, the representation, by itself, was not actionable, for it was not an injury, and the avoidance of the contract which alone made it so, was the exercise of a perfect legal right on the part of the infant. The contract, in such a case as Fitts v. Hall, forms an essential part of the right of action, and no liability growing out of contract can be asserted against an infant. The test of an action against an infant, is whether a liabi- lity can be made out without taking notice of the contract. It is admitted, in the same court, that such an affirmation as in Fitts v. Hall, does not estop the infant so as to render him liable on the contract; Burlet/ v. Russell, 10 New Hampshire, 184; which implies that the avoidance of a contract induced by such a representation is not a fraud. [In the Vermont case, Towne v. Wiley, Kedfield, J., who gave the court's opinion, suffered his usual adherence to sound principles to be overcome by the brutal neglect of the plaintiff: and by his own "love of fair deal'ng," and by his love of what be regarded as "the truthfulness and firmness" evinced in Fitts v. Hall. The case was not one for the application of the doctrine of Vasse v. Smith,'] In trover, the nature of the liability does not appear from the declaration ; and it cannot be told whether the action is brought for a pure tort, or such merely constructive conversion as consists only in a breach of contract. In trover, therefore, infancy cannot, as a special plea, be a bar, nor be a conclusive defence under the general issue; but it may be given in evidence upon the question, whether the alleged act be, in the case of an infant, a conversion or not. This is the satisfactory principle established in Vasse v. Smith; and it gives the infant, through another channel, the full benefit of his legal protection ; for (1) [In ttis ease "the defendant, an infant, hired of the plaintiffs, who were livery stable keepers, at Bellows Falls, the horse in question, to go to Brattleboro' and back the same day. He went to Brattleboro' and returned by a circuitous route, nearly doubling the dis- tance, which, in a direct course, is twenty-three miles j at about eight o'clock in the evening went to a house in Westminster, and remained until four o'clock the next morning, the night being cool and windy, and the horse exposed, during the whole night, without shelter or cover- ing of any kind. This was on the thirteenth of July, and the horse, when returned to the plaintiffs the next morning, was sick, ate nothing, and died in five or six days, from the over- driving and exposure. The court charged the jury, that these facts constituted a conversion by the defendant, and that his infancy was no bar to the action, and that the plaintiffs were entitled to recover the value of the horse, at the time of conversion, which would be when the defendant departed from the use for which he hired the beast." Which doctrine the Supreme Court affirmed.] TUCKEK ET AL. V. MORELAND: VASSE V. SMITH. 263 the evidence is to be applied in accordance with the general principle above stated J that is to say, a mere breach of contract, such as, in case of hiring, going elsewhere or further than the agreement allowed, is not an actionable conversion in an infant; but an actual and wilful conversion, totally uncon- nected with the contract, such as a destruction of the property, or a refusal to deliver on demand when it is in his possession, is an actionable tort in trover ; the test still being, whether a conversion is made out without calling the con- tract in aid. The cases sustain this distinction. In Jennings v. Randall, 8 Term, 335, the count in trover was not objected to, and Lawrence, J., expressly says, (p. 337,) " in trover an infant is always liable." So far as Hornet- v. Thwing et al., 3 Pickering, 492, determines that trover will lie against an infant, the point really presented to the court, it is no doubt an authority, but it goes too far in denying the distinction between actual and constructive con- version. Penrose v. Curren, 3 Rawle, 351, is called an action on the case ; Wilt V. Welsh, 6 Watts, 9, was trover : these cases deciding that for a con- structive tort or conversion in driving a hired horse elsewhere than the contract allowed, or managing him negligently, an infant cannot be made liable in any way, are certainly correct ; but the mode of taking advantage of the privilege of non-age, and the principles of pleading connected with the subject, were not discussed in those cases. In Lewis v. Littlefield, 15 Maine, 233 ; 17 Id. 40, it is decided that trover lies against an infant for a conversion in delivering over what had been entrusted to him as a stakeholder under an unlawful con- tract; and Shipley, J., remarks, (15 Id. 236,) that the difference between the Massachusetts and Pennsylvania cases is as to what is evidence of a conversion in the case of an infant. In regard to trespass, where there has been a possession by the infant under a contract, as the declaration takes no notice of any contract, the action will always lie against an infant; but as trespass is an injury to possession, it will not lie against either adult or infant, where there has been a bailment, unless the bailee has determined his legal possession by some violent act done to the property; but if he has so determined it, and has committed in law a trespass upon the property, the infant is liable for it, notwithstanding the contract; Camphell v. Stakes, 2 Wendell, 138, 143 : the objection made to this case in Wilt V. Welsh, proceeds perhaps upon a too strict construction of the language of the court, and a misapprehension that the court had meant to say that any breach of contract rendered the infant a trespasser. The court in Campbell v. Stakes probably meant that the same acts of tort which would determine the possession of an adult bailee, and make him a trespasser, will have the same effect in the case of an infant; what are such acts, belongs to another branch of the law. Criminally, an infant may be liable, notwithstanding the transaction be con- nected with a contract; as, for obtaining goods on false pretences,(l) or for neglect of duty as a member of a military company. (2) At law, an infant may prosecute suits either by guardian or prochein a?nt ;(3) the writ, indeed, may be in the ordinary form, but the declaration must be by (1) The People v. Kendall, 25 Wendell, 399. (2) Winslow V. Anderson, 4 Massachusetts, 376. (3) M'Giffin V. Stout, Coxe, 92; Euoker v. M'Neely, 4 Blackford, 179. 264 I ISr F A N C Y. guardian or next friend. (1) A suit by prochein ami will be good without the assent, and, if it be for the infant's benefit, even against the dissent, of the general guardian. (2) And in case of suit by either prochein ami or guardian, there ought regularly to be an admission of him by the court to sue, but the recital of admission in the declaration is a suificient record and proof of the admission ;(3) and without such an admission or entry as makes the prochein ami liable for costs, the defendant is not bound to plead, but may have the suit dismissed; (4) but in Connecticut and Pennsylvania, there need not be an appointment or express allowance of prochein ami by the court, nor a record of it; (5) see the different practices stated at large in Aptliorp v. Bachus, Kirby, 407, 410. The opinion in Wilson v. Vandyke, 2 Harrington, 29, that an infant may sue by his general guardian without admission, or recital of it, is incorrect, if meant as a rule of the common law;(6) but the neglect to allege admission is cured by verdict.(7) A suit by prochein ami, without alleging in the declaration the infancy of the plaintiff and the admission of the prochein ami by the court, is bad on general demurrer, or writ of error. (8) The ap- pointment of a prochein ami is properly the act of the court, who have a dis- cretion on the subject; and if an improper person, such as an uncertificated bankrupt, be appointed, the court on application will direct his removal. (9) The court may control his conduct; and it is said that his power does not extend to the doing of any act that may be to the prejudice of the infant; he cannot receive the money due upon the judgment that is recovered, but it must be paid to the general guardian. (10) If an infant declare by attorney, the defendant can plead it only in abatement, and it is not a ground of nonsuit. (11) As to defence, suits may be brought against an infant, but he cannot appear by attorney,(12) but only by guardian ad litem admitted or appointed by the court. (13) In Pennsylvania, an infant defendant may appear by his general d) Groff V. (iroff, Pennington, [656] ; Bouohe v. Ryan, 3 Blackford, 472 ; Haines v. Oatman, 2 Douglass, 430, 431. (2) Thomas v. Dike, 11 Vermont, 273; Hardy v. Scanlin, 1 Miles, 87; see Trask v. Stone, 7 Massaehusetts, 241. (3) Miles V. Boyden, 3 Pickering, 213, 219. ( 1) Keeran ». Clowser, 5 Blackford, 604; Haines v. Oatman, 2 Douglass, 430. (5) Judson V. Blanebard, 3 Connecticut, 680, 584; Turner v. Patridge, 3 Pennsylvania, 172; Heft V. M'Gill, 3 Barr, 256, 264. (B) Pechey v. Harrison, 1 Lord Raymond, 232; Co. Lit., 135, S, note (1). (7) Kid f. Mitchell, 1 Nott & M'Cord, 335; Apthorp v. Backus, Kirby, 407, 411. (S) Shirley v. Hagar, 3 Blackford, 225; M'Gillicuddy v. Forsythe, 5 Id., 435, 436. (9) Watson v. Frazer, 8 Meeson & Welsby, 660. (10) Isaacs v. Boyd et al., 5 Porter, 389; Bethea v. M'Call, 3 Alabama, 450; Smith v. Redus and Wife, 9 Id., 99, 101; see Turner v. Patridge, 3 Penrose & Watts, 172, 173; Apthorp v. Backus, Kirby, 407, 410. (11) Smith B. Van Houten, 4 Halsted, 381; Schemerhorn ». Jenkins, 7 Johnson, 373 ; Fellows ,. Xiver, 13 Wendell, 563; Heft «. M'Gill, 3 Barr, 256, 264; Drago v. Moso, 1 Speers, 212, overrulino- M'Daniel v. Nicholson, 2 Mill's Constitutional, 344; Blood v. Harrington, 8 Picker- ing, 552, 555. (12) Comstock v. Carr, 6 Wendell, 526. (13) Alderman v. Tirrell, 8 Johnson, 418 ; Arnold v. Sandford, 14 Id., 417; Bustard v. Gates and Wife 4 Dana, 429, 436; Cook's Heirs v. Totton's Heirs, 6 Id., 108; Knapp v. Crosby, 1 Massachusetts, 479; Starbird et al. v. Moore, 21 Vermont, 530. See the whole subject of guar- dian od litem in Clarke v. Gilmanton, 12 New Hampshire, 515, 517; see, also, Grain v. Parker, 1 Carter's Indiana, 375. TUCKEB ET AL. V. MOBELAND: VASSE V. SMITH. 265 guardian appointed by the Orphans' Court. (1) If no appearance by guardian ad litem is entered, the plaintiff may have a rule to assign a guardian for the infant, which is a power incident to every court; (2) and the practice is said, in Fearing v. Clawson, 1 Hall, 55, and Mercer v. Watson, 1 Watts, 330, 349, to be to appoint a nominal person; but in Young, &c., v. WMtaker, 1 Marshall, 898, 400, it is said that the guardian thus appointed should be a fit and respon- sible person; and in Greenup's Representatives v. Bacon's Executors, 1 Monroe, 108, 109, it is said that if no guardian will appear, it is the duty of the court to appoint one of its officers whom it can control, and to see that he appears and takes defence, and that the appointee is responsible for his acts done under the appointment. A minor sued as trustee, by means of the trustee process, must defend by guardian, and if no guardian appear for him, the plaintiff must apply to the court to have a guardian ad litem appointed. (3) Judgment against an infant without the appointment of a guardian ad litem is erroneous; and to justify a judgment by default, the order of appointment should appear of record, but if there has been an actual defence by one acting as guardian, the want of express appointment. is probably not error ;(4) and the guardian must enter an appearance, or at least accept the appointment, for without his accepting the appointment, or acting, so far as to appear, there can be no valid judgment against the infant; (5) if he appears, the court does not further protect the infant, but judgment for after-defaults may be entered, the recourse of the infant being against the guardian for injuries occasioned by his neglect or mis- management. (6) A judgment against several,- erroneous on account of one infant defendant appearing not by guardian, will be reversed entirely, a judg- ment being an entirety; (7) and a release of errors by the infant will not bar a writ of error, as a right of reversal exists in the other defendants. (8) When an infant brings a writ of error to reverse a judgment rendered against him without an appearance by guardian, the court vacates the judgment only, and does not set aside the proceedings altogetlier.(9) The practice in chancery is similar. Infants file their bill by proehein ami, and even if the suit is conducted by the general guardian, it should be in the name of the infant, by him as proehein ami:(10) as to the proehein ami, see Fulton V. Rosevelt, 1 Paige, 179. Infants defend only by guardian appointed ad litem ; the general guardian of the person and estate is not competent to defend, by virtue of his office. (11) If the infant does not apply within a cer- (1) Mercer v. Watson, 1 Watts, 330, 350. (2) Judson V. Storer, 2 Southard, 544; Cole v. Pennell, Ac, 2 Randolph, 174; Mockey v. Grey, 2 Johnson, 192.' (3) Wilder et al. v. Eldridge and Tr., 17 Vermont, 227; Keeler v. Fassitt, 21 Id., 540. (4) See Brown u. M'Kae's Executors, 4 Munford, 439 ; Priest and others o. Hamilton, 2 Tyler, 44, 49; Mercer d. Watson, 1 Watts, 330, 358. (5) Shaefer v. Gates and Wife, 2 B. Monroe, 453, 456; Fox et al. v. Coshy et al., 2 Call, 1. (6) Young, Ac, u. Whitaker, 1 Marshall, 398, 400. (7) Cruikshank v. Gardner, 2 Hill's N. Y., 333 ; Sargeant et al. v. French, 10 New Hamp- shire, 444; Starbird et al. ■«. Moore, 21 Vermont, 530. See Mason v. Denison, 16 Wendell, 64. (8) Blanchard, Coolidge et al. v. Gregory, 14 Ohio, 413, 417. (9) Barber v. Graves, 18 Vermont, 290. (10) Bradley v. Amidon, 10 Paige, 236, 239 ; Hoyt v. Hilton, 2 Edwards, 202; Lemon, Guar- dian, o. Hansbarger, 6 Grattan, 301. (11) Shield's Heirs v. Bryant, 3 Bibb, 525. 266 INFANCY. tain time to have a guardian ad litem appointed for himself, the complainant may apply to have one appointed ;(1) as to the manner of appointment, see Banh of the U. S. v. Ritchie et al., 8 Peters, 129, 144. The order of appoint- ment must be of record, for it is not enough that one answering for the infant calls himself his guardian ;(2) but it seems that there may be a binding recog- nition of one acting for the infant, as guardian ad litem, by orders and pro- ceedings of the court, though no direct order of appointment has been made. (3) And the guardian must not only be appointed, but must accept the appointment, by appearing, or otherwise; (4) and a decree against an infant without a guardian is erroneous. A decree against infant heirs defendants must give day, which in practice is six months, after age, to show cause against it ; and a decree which does not give day will be reversed on appeal for that error alone ;(5) or is ground for bill of review without leave of the court. (6) If the infant after- wards succeeds in showing that the decree ought not to have been made, the court will place him, so far as is conveniently practicable, in the situation in which he was before the decree was made. (7) A distinction as to the extent to which the proceeding may be overhauled, exists between decrees of fore- closure and other decrees : In cases of foreclosure, whether with or without sale, the infant, on arriving at full age, and showing cause, can only allege error on the face of the decree ; whereas, in other cases, he will be permitted to file a new answer, and litigate the merits of the case. (8) A decree need not give day to infant complainants, as they have no right to overhaul the decree. (9) An infant plaintiff or complainant is not liable for costs, but the prochein ami is ;(10) but in Massachusetts, upon the construction of a statute, an infant plaintiff is liable ;(11) and a prochein ami is not. (12) If the prochein ami is not a responsible man, the court may order security for costs, or appoint another who is responsible. (13) (1) Anonymous, 10 Paige, 41. (2} Irons, E.^'x, v. Crist, 3 Marshall, 143 ; Letcher's Heirs v. Letcher, 2 Id., 158 ; Searcey's Heirs v. Morgan, 4 Bibb, 96 ; Shields, Ac, v. Craig, 1 Monroe, 72 ; Bwing's Heirs v. Arm- strong, 4 J. J. Marshall, 68; Robertson v. Robertson, 2 Swan, 197. (3) Cato V. Easley, 2 Stewart, 214, 220. (4) Carneal et al. <-. Sthreshley, 1 Marshall, 471 ; Daniel, Ac, v. Hannagan, 5 J. J. Marshall, 48 ; Heirs, &o., of St. Clair v. Smith & Milliken, 3 Ohio, 365, 364. (6) Beeler, Ac. t. Bullitt, 4 Bibb, 11; CoUard's Heirs r. Groom, 2 J. J. Marshall, 487, 488 ; Jones's Heirs k. Adair, 4 Id., 220; Arnold's Admr'x i. Voorhies, Id., 507, 608; Passmore's Heirs v. Moore, 1 Id., 691, 693; Harlan, Ac, t-. Barnes' Adm'rs, 5 Dana, 219, 223; Mills v. Dennis, 3 Johnson's Chancery, 367; Harris and others ti. Youman and others, 1 Hoffman's Chancery, 178; Wright v. Miller, 1 Sandford, 104, 120; Coffin v. Heath and another, 6 Met- calf, 77, 81. (6) Lee v. Braxton, 5 Call, 459. (7) Pope, Ac, V. Lemaster, Ac, 5 Littell, 76, 80 ; Prutzman v. Pitesell, 3 Harris A Johnson, 77, 82. (8) M'Clay, Adm'r, et al. v. Norris, 4 Gilman, 370, 381. (9) Williamson's Heirs v. Johnston's and Nash's Heirs, 4 Monroe, 253, 255; Jameson, Ac., v. Moseley, Id., 414, 416; M'Clay, Adm'r, et al. i-. Norris, 4 Oilman, 370, 383; Brown v. Armis- tead, 6 Randolph, 694, 602; Hanna v. Spott's Heirs, 6 B. Monroe, 362, 367. (10) Sproule, Ac. t. Botts, 5 J. J. Marshall, 162; Waring c Crane, 2 Paige, 80. (11) Smith V. Floyd, 1 Pickering, 276. (12) Crandall v. Slaid and Wife, 11 Metoalf, 288. (13) Cotheal et al. v. Moorehouse et al., 1 Zabriskie, 336. TUCKER ET AL. V. MOEELAND: VASSE V. SMITH. 267 As to the time and manner of avoiding judicial proceeding on account of infancy ; the general rule is, that a voidable act by matter of record can be avoided only by matter of record. A fine, common recovery, or recognizance, are to be avoided during infancy, by audita querela, and the fact of infancy is determined by inspection ;(1) but in the last case, it is intimated that a recog- nizance might be avoided upon suit, by plea, like other obligations. A judg- ment against an infant without guardian, may be reversed by writ of error after full age, and the trial is per pats:(2) and whenever a writ of error lies, such a judgment cannot be impeached collaterally, for it is a rule, that where a party to an erroneous judgment is entitled to a writ of error to reverse it, it cannot be avoided in any other way : but a party to an erroneous judgment, who is not entitled to a writ of error to reverse it, may avoid it on motion, or by plea, in a court of competent jurisdiction; (3) accordingly, it was decided in Mter v. Curtis, 7 Watts & Sergeant, 170, in perfect accordance with settled principles, that in debt on a judgment of a justice of the peace, against an infant, infancy might be pleaded, because no writ of error lay to remove the judgment, and a certiorari would correct no more than errors apparent on the face of it. As to setting aside judgments or executions by audita querela, see Chase V. Scott; Starbird et al. v. Jloore, 21 Vermont, 530; and Mason v. Denison, 15 Wendell, 64, 68. There are some judicial acts of the Court of Chancery, which, being per- formed under an authority not derived from the infants, are binding upon them ; as, decrees of sale under mortgage, or under a power in a will to sell; (4) any other power which that court may have to decree sales of the land of infants must be derived from statutes, as it has no such power inherently; (5) unless it may be merely for the purpose of changing a fund. (6) (1) Phillips et ux. v. Green, 3 Marshall, 7, 11 ; Prewit v. Graves, Ac, 5 J. J. Marshall, 114, 120; Bool V. Mix, 17 Wendell, 120, 132; Chase v. Scott, 14 Vermont, 77; Patohin v. Cromach, 13 Id., 330. (2) Sliver v. Shelbaok, 1 Dallas, 165. (3) Austin V. Charleston Female Seminary, 8 Metoalf, 196,204. (4) Mills i;. Dennis, 3 Johnson's Chancery, 307, 369; Brown d. Armistead, 6 Randolph, 694, 602. (5) Rogers v. Dill, 6 Hill's N. Y., 415 ; M'Kee's Heirs v. Hann, Ac, and M'Kee, Ac, 9 Dana, 526 ; Pierce's Adm'r, Ac. v. Trigg's Heirs, 10 Leigh, 408, 421. (6) Huger and others v. Huger and others, 3 Desaussure, 18, 21. 268 APPLICATION OF PAYMENTS. APPLICATION OF PAYMENTS. THE MAYOR AND COMMONALTY OF ALEXANDRIA v. PATTEN AND OTHERS. In the Supreme Court of the United States. FEBRUARY TERM, 1808. [reported, 4 CRANCH, 317-321.] If the debtor at the time of payment does not direct to which account the payment shall he applied, the creditor may at any time apply it to which account he pleases. Error to the Circuit Court of the District of Columbia, sitting at Alexandria, in an action of debt brought by the mayor and commonalty of Alexandria, for the use of John G. Ladd, against Thomas Patten and his sureties, on a bond given for the performance of his duty as vendue-master. The object of the suit was to recover a sum of money alleged to re- main in his hands as vendue-master on account of goods sold for Ladd. Patten was also the debtor of Ladd for goods sold by him to Patten, who gave in evidence payments which exceeded the amount due upon the latter account, and which, if applied to the former account, would nearly, if not entirely, discharge that debt. The payments were attended by circumstances which the defendants considered as evidence of a clear intention to apply them to the debt due from Patten as vendue- master ; "whereupon the counsel for the plaintiffs prayed the opinion of the court whether, from the manner in which the payments were made as aforesaid, the said John 0. Ladd had not a right to apply so much of the money, paid to him as aforesaid, as would discharge the debt due to him as aforesaid, for goods sold as aforesaid, to the said Thomas Patten to the discharge of the same. Whereupon the court instructed the jury, that if they should be satisfied by the evidence that the payments of the money by the defendant Patten were made on account of the goods sold at vendue, and so understood by both parties at the time of the payments, they must be applied to that account. " If Mr. Patten, at the time of paying the money, did not direct to which account it should be applied, and if it was not understood by the parties at the time of payment, on which account it was made, the MAYOE, ETC. V. PATTEN: FIELD V. HOLLAND. 269 — r~. : — : : — : —f plaintiff had a right immediately to make the application to which ] account he pleased ; but such application must have been recent, and \ before any alteration had taken place in the circumstances of Mr ; Patten. " If neither of the parties made the application as aforesaid, and if j the parties did not then understand on which account it was made, then | the payments ought in law to be applied to the discharge of the vendue account, the non-payment of which is alleged as the breach of the bond / upon which the present suit is brought." To this opinion the plaintiiFs excepted, and the verdict and judgment) being against them, brought their writ of error. Swann, for the plaintiffs in error, contended, that where there are different debts due by a debtor to his creditor, and a payment be made ■ generally on account, the creditor has a right to apply the payment, - whenever he pleases, to wTiicJi account he pleases, and cited the case of ' Goddard v. Cox, 2 Strange, 1194. Youngs, contra. It is admitted that the defendant had the right at the time of pay--, . ment to direct its application, and that if he did not then exercise that y right, it devolved upon the plaintiff. But the question is, when is the -^ plaintiff to exercise the right ? Can he, at any definite period after the v payment, and under any change of circumstances, apply the payment ^ as he pleases ? Can he, at the moment of trial, when the defendant - produces evidence of payments, say, I choose to apply these payments to the other account? The rules of law are all founded in reason. , Some reasonable limit must be supposed to the exercise of this right. ' In the present case the interests of third persons are involved. The ; sureties may have been lulled into security by the evidence of these I payments. The court below was bound to decide according to the laws of Vir- ginia, which have been adopted by Congress for the government of the county of Alexandria. The law is conclusively settled in Virginia, by the highest tribunal in that state, in the case of Braxton v. Southerland, 1 Washington, 133, ' where the president of the court of appeals, in delivering the opinion of the court says, " although, if the debtor neglect to make the application at the time of payment, the election is then cast upon the creditor, yet it is incumbent upon the latter, in such a case, to make a recent appli- cation, by entries in books or papers, and not to keep parties and securi- 270 APPLICATION OF PAYMENTS. ( ties in suspense, changing their situation from time to time, as his i interest, governed by events, might dictate." And upon this principle, the decree of the court in that case was founded. It was not a mere dictum, but the very ground of the court's decision. This, then, being the law of Virginia, the court below was bound by it. If the opinion of the court of appeals of Virginia needed support, it would be found in 2 Pothier on Obligations, 45, who gives it as a rule of the civil law, " that when the debtor in paying makes no application, the creditor to whom money is due for different causes, may apply it, to the discharge of which he pleases." But he goes on to say, " It is / necessary, 1st. That this application should have been made at the time; I and 2d. That the application which the creditor makes should be equi- ) table." Another rule in p. 49, is, that "when the application has not j been made either by the debtor or the creditor, the application ought to \be made to that debt which the debtor had, at the time, most interest to i discharge." And as a corollary, he says, "The application is made ', rather to the debt, for which the debtor has given a surety, than to those which he owes alone. The reason is, that in paying the former he dis- ; charges himself towards two creditors — his principal creditor, and his surety whom he is bound to indemnify." These principles are confirmed by 1 Domat, 287, tit. De Solutione. The case of Groddard v. Cox, cited for the plaintiffs, is a mere nisi prius case before Chief Justice Lee, in Middlesex ; and it only decides the principle, that where a defendant is indebted to the plaintiff on two simple contracts of equal dignity and of the same nature, and for neither of which is any other person bound, and the payment is made generally on account, without any application having been made by the defendant, the right to make the application devolves on the plaintiff. It does not idecide the question now before the court, which is, whether the plaintiff is not bound to make a recent application in cases where the interests j;of sureties are concerned. All the cases in which the plaintiff has been permitted at law to make his election, are cases where the debts were of equal dignity and of similar nature, and where it did not appear to be important to the debtor, or any other person, to which debt the payment should be applied. Esp. N. P. 229. There is, in truth, no difference in principle between the rule in equity and the rule at law, as to the application of payments. Marshall, C. J. — It is a clear principle of law, that a person owing money on two several accounts, as upon bond and simple contract, may MAYOR, ETC. V. PATTEN: FIELD V. HOLLAND. 271 elect to apply his payments to which account he pleases ; but if he fails to make the application, the election passes from him to the creditor, ; No principle is recollected which obliges the creditor to make this elec- , tion immediately. After having made it he is bound by it ; but until ' he makes it he is free to credit either the bond or simple contract. Unquestionably, circumstances may occur, and perhaps did occur in this case, which would be equivalent to the declaration of this election on the part of the debtor, and, therefore, the court was correct in in- structing the jury, that if they should be satisfied that the payments were understood to be made on account of the goods sold at vendue, they ought to apply them to the discharge of that account ; but in declaring that the election, which they supposed to devolve on the plaintiff if the application of the money was not understood at the time by the parties, was lost if not immediately exercised, that court; erred. Their judgment, therefore, must be reversed, and the cause remanded for a new trial. FIELD & OTHERS v. HOLLAND & OTHERS. In the Supreme Court of the United States. FEBRUARY TERM, 1810. [reported, from 6 CRANCH, 8-29, FOR THIS WORK.] Where a debtor is indebted on several accounts, some of which are secured, and others not, and he makes payments, if neither the debtor nor the creditor have made the application of the payments, the court will apply them, and apply them in the first instance to the debts tvhieh are not secured or of which the security is the most preca- rious. This was a bill in equity to set aside a sheriff's sale of certain land, the ground of the application being that the judgment on which the land was sold by the sheriff had been paid ; and the fact whether this ground really existed or not— that is to say, whether the judgment had been paid or not — depending on a question of law as to the application of payments. 272 APPLICATION OF PAYMENTS. With some conflict of evidence, which rendered it difficult to ascertain facts exactly, the case seemed essentially this : One Holland having large and various transactions with Zachariah Cox obtained two judgments against him, one in 1793 and the other in 1794. Subsequent to the two judgments, Holland continued his business with Cox, made large advances to him in goods, and took his obligations. Sundry payments and negotiations were made by Cox, particularly three drafts, or inland bills of exchange, given by Cox to Holland in February, 1795, and payable in May, June, and July fol- lowing, for which Holland gave the following receipt : " Washington, 21st February, 1795. Received from Zachariah Cox, Esq., three sets of bills of exchange, dated the 5th and 15th instant, for twenty thou- : sand dollars, payable in Philadelphia, which when paid will be on account ; of my demand against said Cox." It seemed to be part of the case that at the time these hills were given there was no debt due from Cox to Holland except on the judgments ; i though at the times the hills fell due there was a large one besides. In September, 1796, a settlement of some kind — the details of which were, however, not clear,'— took place between Cox and Holland about their transactions, and Holland took Cox's note for 18,000 dollars, for the balance. In addition to these, the only very clear facts of the case, it appeared that in a letter from Holland to one Vaughan — who was a sort of joint agent of both parties, through whom payments were made — of the 18th of April, 1795, enclosing the bills for 20,000 dollars, he says, " you will oblige me much by procuring the payment of these bills. I have delayed the execution and sale of Mr. Cox's property to the great injury of my own affairs, and I request you may assure him that should the bills pot be paid immediately, the consequence must be an assign- ment of the judgment against him, the result of which will be an imme- diate sale of his property, which I will not be able to prevent, unless his punctuality in this instance steps forward." " The late stoppage of Mr. Morris and Nicholson, I am fearful may affect them, but as they, together with Mr. Greenleaf, are concerned with Mr. Cox, in the valu- able property which my execution is upon, I expect, they will for their own saJces see me satisfied, and these drafts paid, to prevent worse con- sequences." He afterwards says, " I have not security by judgment to the extent of my debt against him." He also urges Mr. Vaughan to obtain security from Cox in case the bills should not be paid. In a letter of May 29, 1795, Holland again says, "I hope you will be able to make some arrangement for the payment of the 18,000 dollars, as I feel re- MAYOR, ETC. V. PATTEN: FIELD V. HOLLAND. 273 luctance in pushing the execution I have against the property of Mr. Cox, although by doing so I would make some thousands." Cox, however, denied that the payments were on general account, and Mr. Vaughan stated, that although he had no particular knowledge how Holland and Cox settled, yet when a new advance was made by Hol- land to Cox, after the 14th of September, 1796, he understood the old concern was settled. The court below gave the following opinion : " This cause is involved in much obscurity, but, upon mature delib- eration, we are of opinion that there is sufficient ground for us to decree upon. The defendant Holland is in possession of a judgment against Cox, which the latter contends is satisfied, and one of the objects of this bill is to have satisfaction entered of record upon the said judg- ment. The only difficulty arises upon the application of sundry pay- ments which the complainants contend extinguished the judgment, but which the defendant Holland replies were applicable to other demands. The principle on which the court has determined to decree is this ; that' all payments shall be applied to debts existing when they were made,/ and as it appears that there were sundry demands of Holland's on Cox which were not secured by judgment, that those sums shall be first ex- 1 tinguished, and the balance only applied to the judgments. " This application of those payments is supported by general princi- ples, as well as the particular circumstances of the case. " 1. The payer had a right at the time of payment to have applied it to which debt he pleased where a number existed, but if he neglects to do so generally, it rests in the option of the receiver to make the application. In this case Cox takes his receipts generally. Even when the large payment of 20,000 dollars was made, he takes a receipt on account. " 2. It appears that the application of those payments has actually been made in the manner we adjudge ; for from a letter of Mr. Vaughan, through whom most of the payments were made, he intimates that he had given up the evidences of several debts to Cox, because they had been satisfied. Such an act could only have been sanctioned by a knowledge on his part that the money paid through him was in part applicable to those debts." From a decree below, on these principles, dismissing the bill, the case came on appeal to the Supreme Court of the United States : VOL. I. — 18 274 APPLICATION OF PAYMENTS. Jones ^ Harper for the plaintiffs in error : The only two facts proved are the two judgments and the payment of 120,000. The $20,000, in bills, ought to be applied to the judgments, because ,that is most beneficial to the payer, as no otlier debt was then bearing •.interest. The receipt is upon account of Holland's demand ; evidently alluding to the single demand on the judgments. If it had been intended as a general payment, it would have been on account of his demands, in the plural. If money be paid on account, it is to be applied, in equity, most I. beneficially for the debtor. It is not now in the power of the creditor to apply it to which demand he pleases. If neither party, at the time ) of payment, made the application, it is the province of the court of ;; equity to make it now. The court is to judge, from all the circum- ';, stances of the case, what was the intention of the parties, and what i application of the money would be most beneficial to the debtor. Vaughan considered it as a settlement of all accounts. Key on the other side : The payments were not made upon the judgments, and have been properly applied to other accounts. If Cox did not at the time direct to which account the payments should be applied, Holland might apply them to which account he pleased. If neither party has applied them, the court will apply them \ to claims not secured by judgments. Every debt due to Holland from Cox made but one demand. The notes due to Holland were payable in May; the bills for $20,000 did not become due till after May, although drawn in February. If the bills were given on account of the judgments, there would have been a stay of execution until the bills became payable- This court decided in the case of the Mayor and Commonalty of Alexandria v. Patten and others (ante, p. 268), that if the debtor do not, at the time of payment direct to which account it shall be applied, the creditor may at any time afterwards apply it to which account he . pleases. In equity, all debts bear interest. Marshall, C. J. Were the payments properly applied by the court, or were they applicable to the judgments? The principle, that a debtor may control, at will, the application of \ his payments is not controverted. Neither is it denied that on his lomitting to make the application, the power devolves on the creditor. MAYOR ETC., V. PATTEN: FIELD V. HOLLAND. 275 If this power be exercised by neither, it becomes the duty of the court ; and, in its performance, a sound discretion is to be exercised. It is contended by the plaintiifs that if the payments have been applied by neither the creditor nor the debtor, they ought to be applied ( in the manner most advantageous to the debtor, because it must be pre- J sumed that such was his intention. The correctness of this conclusion cannot be conceded. When a J ■ debtor fails to avail himself of the power which he possesses, in conse- ' quence of which that power devolves on the creditor, it does not appear unreasonable to suppose that he is content with the manner in which the creditor will exercise it. If neither party avails himself of his i power, in consequence of which it devolves on the court, it would seem T reasonable that an equitable application should be made. It being', equitable that the whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious. . That course has been pursued in the present ease. But it is contended, that bills for $20,000 were received, and have been applied in discharge of debts which became due two months after- wards. If the receipt given for these bills purported to receive them in pay- ment, this objection would be conclusive. If an immediate credit wasj to be given for them, that credit must be given on a debt existing at' the time, unless this legal operation of the credit should be changed by express agreement. But the receipt for these bills does not import that *; immediate credit was to be given for them. They are to be credited when paid. The time of receiving payment on them is the time when the credit was to be given; and consequently, the power of application, - which the creditor possessed, if no agreement to the contrary existed, was then to be exercised. It cannot be doubted that he might have credited the sums so received to any debt actually demandable at the time of receiving such sum, unless this power was previously abridged by the debtor. It is contended that it was abridged ; and that this is proved by the form of the receipt. The receipt states, that the bills, when paid, are , to be credited on account of the demand of Holland against Cox, and ) the plaintiffs insist that the words import a single demand, and one''^ existing at the time the receipt was given. This court is not of that opinion. The whole debt due from one man to the other, may well constitute an aggregate sum not improperly { designated by the term demand, and the receipt may very fairly be 1 276 APPLICATION OF PAYMENTS. understood to speak of the demand existing when the credit should be given. If the principles previously stated be correct, there is no evidence in the cause which enables this court to say that there was not due, on the judgment obtained by Holland against Cox, a sum more than equal to the value of the lands sold under execution. If so, the plaintiffs have no equity against the purchaser of those lands ; and the bill, both as to ' him and Holland, was properly dismissed. It is the opinion of the majority of the court, that there is no error in the proceedings of the circuit court, and that the decree be affirmed. "Where a partial payment is made by a person indebted on more than one account, the general rule, acknowledged in all the oases, is that — '" I. The person paying may, at or before the time of payment, prescribe the application of the payment; II. If he omit to do so, the creditor may apply it as he pleases ; III. If neither apply the payment, the application devolves on the court, .who will make such appropriation as is reasonable and equitable. [And these rules apply to the case of a payment made to an attorney repre- senting the claims of several creditors whose debts are presently due, as well as to the case of a person owing several debts to the same person. And hence, i' Where a debtor pays money to the attorney of several creditors whose debts ';. are presently due, and does not designate the debt to which he wishes it to be ' applied, the attorney may apply it."](l) (I.;) As the payment is voluntary on the part of the debtor, he may fix the [terms upon which he pays ; and if the creditor accept the payment, he is, by ; such acceptance, bound to the conditions which the debtor has appointed, even ; though at the time he expressly refused to admit them: if, therefore, the debtor ^ ' ipay with one intent, and the creditor receive with another, the intent of the '.. payer shall prevail. (2) Thus, where money was sent to the creditor, with . notice of the account on which it was paid, and the creditor refused to accept it on those terms, and continued to refuse admitting the payment as on that '^.account, yet did receive and retain the money, it was decided that by so doing jhe was concluded to the appropriation which he had been directed to make. (3) (1; Carpenter v. Goin, 19 New Hampshire, 479. (2) See Pinnel's Case, 5 Coke, 117, b; Bois v. Cranfield, Style, 239; Anonymous, Cro. EI., it 68 ; Colt V. Nettervill, 2 P. Wms. 304, 308 ; Bosley v. Porter, Ac., 4 J. J. Marshall, 621; Hull ^ k Montross v. Constant, 2 Hall, 185, 189; M'Donald v. Pickett, 2 Bailey, 617, 618 ; Black v. Shooler, 2 M'Cord, 293, 295 ; Jackson v. Bailey, 12 Illinois, 161 ; BonafEg -o. Woodberry, 12 Pickering, 456, 463; Hussey u. Manuf. and Mech. Bank, 10 Id. 415, 422; Martin v. Draher, 5 Watts, 544; Moorehead v. "West Branch Bank, 3 Watts & Sergeant, 550; Boutwell v. Mason A Scott, 12 Vermont, 608; Caldwell v. Wentworth, 14 New Hampshire, 431, 437; Randall v. Parramore k Smith, 1 Florida, 410, 428 ; Bayley v. Wynkoop, 6 Oilman, 449, 452. i. (3) Reed t>. Boardmon, 20 Pickering, 441, 446 ; See also to the same point, McDaniels ». MAYOR, ETC. V. PATTEN: FIELD V. HOLLAND. 277 So absolute is the debtor's right of appropriation, that, though it is a general, rule that a payment on account of a debt bearing interest is to be applied first in discharge of the interest, yet the debtor may direct the application to so * much of the principal, in exclusion of the interest ; and the creditor, if he . receives the money, is bound to apply it accordingly. (1) This power of the debtor may be completely exercised without any express direction given at the time. A direction may be evidenced by circumstances, ; which may demonstrate the application of a payment as completely as words \ could demonstrate it : thus, a positive denial of one debt, and acknowledgment \ of another, with a delivery of the sum due upon it, would be conclusive; the^ fact that the money paid agreed in amount with one of the debts, or that, at the time of payment, the evidence of one of the debts was given up, would be a strong circumstance : in cases of this kind, upon proper evidence, the inten- tion of the debtor, or of both parties, is a question of fact for the jury. (2) There are some particulars, also, in which the indication of the debtor's intention, afforded by the nature of the case, assumes the character of an abso- . lute, legal presumption, not to be counteracted except by an express agreement ' of the parties. Thus, a general payment is always to be referred to a debt ■, that is due, in preference to one that is not due, because it is not to be supposed ', that a debtor intends to make a deposit and not a payment ;(3) and to a debt due by the payor absolutely, and as principal, rather than one due contingently and collaterally, or held as collateral security ; (4) yet, by the express agree- ment of the parties, a payment may be appropriated to a debt not due; (5) or to an unlawful debt. (6) It is to be observed, also, that where a note, bill, or other security for money to be received at a future time, or property to be con- Lapham, 21 Vermont, 2.S0 ; Donohue v. Woodbury, 6 Gushing, 150; and see Thomas v. Cross and American note, 7 Bxohequer, 728. (1) Pindall's Ex'x, &o. v. Bank of Marietta, 10 Leigh, 481, 484; Miller v. Trevilian, Ac, 2, Robinson's Virginia, 2, 27. (2) Tayloe v. Sandiford, 7 Wheaton, 14, 20 ; Mitchell v. Call, 2 Harris & Gill, 160, 173 ; S. C, i Gill & Johnson, 361, 372 ; Fowke v. Bowie, 4 Harris & Johnson, 566 ; Robert and others v. Garnie, 3 Caines, 14 ; West Branch Bank v. Moorehead, 5 AVatts & Sergeant, 542 ; Dickinson College v. Church, 1 Id., 462, explained in 6 Id., 15; Schnell ^. Schroder, Bailey's Equity, 335, 342; Scott v. Fisher, &e., 4 Monroe, 887; Stone v. Seymour, 15 Wendell, 19, 24, 25; S. C, 8 Id., 4U4, 417 ; Newmarch v. Clay and others, 14 East, 239 ; Shaw v. Picton, 4 Barnewall & Cresswell, 715 ; Marryatts v. White, 2 Starkie, 91; See Lysaght v. Walker, 5 Bligh N. S. 2, 29 ; The XJ. S. i.. Bradbury et al., Davies, 146, 150 ; Caldwell ti. Wentworth, 14 New Hampshire, 431, 440; Treadwell v. Moore, 34 Maine, 115; Dulles v. De Forrest, 19 Con- necticut, 191, 204; Oliver v. Phelps, Spencer, 180, 198. (3) Hammersley et al. v. Knowlys, 2 Espinasse, 666; McDowell v. Blackstone Canal Com- pany, 5 Mason, 11 ; Baker v. Staokpoole, 9 Cowen, 420, 438 ; Bacon v. Brown, 1 Bibb, 334, 336; Stone v. Seymour, 15 Wendell, 19, 24; Upham & others v. Lefavour, 11 Metcalf, 174, 185 ; Law's ex'ors v. Sutherland et alg., 5 Grattan, 367, 362 ; Caldwell v. Wentworth, 14 New Hampshire, 431, 440; and ace. Civil Code of Louisiana, 2162; Lebleu v. Rutherford and others, 9 Robinson, 95 ; FoUain and another v. Orillion, Id., 506 ; and see Lamprell v. Billericay Union, 3 Exchequer, 2S4, 307. (4) Merrimack Co. Bank v. Brown, 12 New Hampshire, 321, 327; Sawyer v. Tappan, 14 Id., 352 ; Portland Bank v. Brown, 22 Maine, 295 ; Niagara Bank v. Roserelt, 9 Cowen, 410, 412; Newman v. Meek, 1 Smedes & Marshall's Chancery, 331, 337. (5) Shaw V. Pratt, 22 Pickering, 306, 308. (6) Treadwell c Moore, 34 Maine, 112. 278 APPLICATION OF PAYMENTS. verted into money, is given, the time when the application takes effect is the time when the article becomes a payment, which may be at once, if the prop- ^. erty is expressly received as absolute payment; but if the property is assigned , as collateral security for several debts, the creditor may apply the money realized ( to any of the notes that are due at the time the money is received. (1) If, how- ever, there be only one debt incurred at the time when property is assigned out of which the creditor is to pay himself, and before the money is received, another debt is contracted, the application must of course he to the former, and the cre- ditor could not apply to the latter without an express permission to do so. (2) It is a settled rule, also, that the source or fund from which a payment is made will direct the appropriation ; that is, when money has come from a par- J tioular fund, it must be applied by the creditor in relief of the source from which the fund arises. Thus, where one who was a creditor on mortgage and by simple contract, received a sum of money from an assignee of the mort- gagor of part of the mortgaged premises, in consideration of the release of such ' part from the mortgage, he was held bound to apply the money to the mortgage debt. (3) ,' [When the debtor, in making his payment, has made the appropriation, he ^cannot change it without the creditor's assent. Hence, if he has made pay- ^ment on account of an unlawful debt, which could not be recovered from him, ■fhe cannot, when sued for a lawful debt, apply the payment to it.] (4) (II.) If there have been no actual appropriation by the debtor, at or before the payment, either expressly declared or to be inferred from circumstances, ' 'his right to control the application is gone ; the right, after that, belongs to the creditor, who may make any application that he pleases. (5) The appro- priation on the creditor's part may become fixed, either by verbal declaration, or by the terms of the receipt given, or by rendering an account, or bringing a suit grounded on a specific appropriation, or by any other act manifesting an intent, or inducing a belief that a particular application is made. (6) It has been stated above, that there are some considerations which of them- selves, and without express declaration by the debtor, appropriate a payment so as to control the creditor's discretion, either as affording legal presumptions ; of the debtor's intention, or as being paramount obligations of reason and jus- (1) Field I.. Holland ; Allen v. Kimball, 23 Pickering, 473, 475. (2) Donally t'. Wilson, 5 Leigh, 329. (3) Hicks r. Bingham, 11 Massachusetts, 300; Brett v. Marsh, 1 Vernon, 468; see dictum in Gfwinn v. Whitaker, 1 Harris & Johnson, 754, 765 ; and see Waller v. Lacy, 1 Manning & Granger, 64. (4) Treadwell r. Moore, 34 Maine, 115. (5) Goddard v. Cox, 2 Strange, 1194; Bowes v. Lucas, Andrews, 55; Mann v. Marsh, 2 Caines, 99; Reynolds & M'Farlane v. M'Farlane, Overton, 488; Arnold u. Johnson,! Soammon, 196, 197; McFarland et al. v. Lewis et al., 2 Id., 346, 347; Hillyer .. Vaughan, 1 J. J. .Miirshall, 683; Briggs v. Williams et als., 2 Vermont, 283, 286; Eosseau et al. .•. Cull et al., 14 Id., 8,3, 86; Selleek v. The Sugar Hollow Turnpike Company, 13 Connecticut, 453, 460; Caldwell p. Wentworth, 14 New Hampshire, 431, 437; Larabee v. Lumbert, 32 Maine, 99; Dictum in Lirermore r. Rand, 6 Foster, 91 ; Eackley v. Pearce, 1 Kelly, 241, 242 ; Hargraves ,,. Cooke, 15 Georgia, 321. (6) See Starrett )•. Barber, 20 Maine, 457, 461 ; Allen )•. Kimball, 23 Pickering, 473, 475 . Upham and others r. Lefavour, 11 Metcalf, 174, 186; Allen ... Culver, 3 Denio, 285, 291 ; Lindsey r. Stevens, 5 Dana, 104, 107; The U. S. v. Bradbury et al., Davies, 146, 151. MATOE, ETC. V. PATTEN: FIELD V. HOIjLAND. 279 tiee. The creditor, also, may, from the relation in which he stands to thirdj^ persons, or from agreements with them, express or implied, be obliged to make '• a particular application. Thus, if one debt be due to him in his own right,' and the other to him as trustee or agent for another, neither being secured,!' and a general payment be made, the debts will be considered as satisfied in law and equity, rateably, because a trustee is bound to take the same care of his' cestui que trust's interests, or of the trust property, that he does of his own.(l) To a principle of this kind, or rather to the principle of an agreement between both parties, to be presumed from obvious duty in both of them, is to be re- ferred the case of Harlcer and another v. Conrad and another, 12 Sergeant & Rawle, 301, in which it was decided that where the creditors had suffered another lien to expire, a general payment must be so applied as not to enforce a lien against a purchaser without notice, who stood in superior equity to both, the debtor being bound to protect-the title he had conveyed, and the creditors being bound by every consideration of equity to perpetuate their other lien, and thus, while they secured themselves, to cast the burden on those whose duty it was to bear it. It is difficult, however, to see how the third person in this case could be considered a purchaser without notice, the claim itself being legal notice during the time allowed for filing it of record : and the case per- haps can be sustained only on the ground of an equity similar to that recog- nized in Naylor v. Stanley, and in Cowden's Estate, 1 Barr, 268. But, under any view, the decision is not entirely satisfactory. Subject, however, to the interference of such special considerations of this nature as every general rule must in its application be controlled by, the credi- tor, when the right devolves upon him, may make any application that suits ; his interest or convenience. Thus, if one debt be the sole obligation of the debtor, and the other be with a surety, guarantor, or joint debtor, whether thej sole debt be earlier or later in point of time than the debt with a surety, and '' if earlier, whether the surety had, at the time of incurring his engagement, notice of it or not, the creditor may apply a general payment, made by the debtor from his own funds, to the debt which is not protected, and continue to hold the surety bound ; a guarantor or surety, merely as such, being considered - as having no equity to control or change an application made by the creditor;(2) and if one debt be by bond, or covenant under seal, and the other by simple - contract or open account, the creditor may apply to the latter ;(3) or, if one be by judgment, and the other by simple contract, the creditor may apply to the , latter. (4) In like manner, if there be several notes, or several bonds, due at ' successive times, the creditor need not apply so as to satisfy them in the order (1) Soott V. Ray & Trs., 18 Pickering, 361, 366; Barrett v. Lewis, 2 Id., 123; and see Cole V. Trull, 9 Id., 325, 327. (2) Mayor, Ac, of Alexandria v. Patten and others; Sturgea et al. t. Bobbins, 1 Massachu- setts, 301, 305; Brewer v. Knapp et al., 1 Pickering, 332, 337 ; Logan v. Mason, 6 Watts . Hodgson, Gow, 74. (3) Mayor, &e.. of Alexandria r. Patten and others ; Hamilton r. Benbury, 2 Haywood, 385 Mitchell t'. Dall, 4 Gill & Johnson, 361, 372; Peters v. Anderson, 5 Taunton, 596. (4) Richardson i-. Washington Bark, 3 Metcalf, 536; Chitty v. Naish, 2 Dowling, 511; Braiier v. Bryant, Id., 477. 280 APPLICATION OF PAYMENTS. )of time, but may, if he pleases, apply to all rateably ;(1) or, if the debts are ^distinct, he may apply to the latest. (2) In Frazer v. Bunji, 8 Carrington & Payne, 704, it was ruled, that a performer at a theatre, who was paid a certain sum on account of arrears of salary, might apply the payment to any part of the account that he chose. And even further, if some items would be barred ^by the statute of limitations, the creditor may apply a general payment to them, , ,. and sue upon those which are not barred; (3) and if one debt be, from the rela- -■.^-tioQS of the parties, enforceable only in equity, the creditor may apply to it, and sue on the legal one : (4) or if one be not enforceable in consequence of an informality in the ground or evidence of the claim, yet be justly due; (5) or if one be not recoverable at law, in consequence of a provision by statute pro- ;hibiting a recovery for such debts, the creditor may make the application to such claim, and sue upon the valid or enforceable one.(G) InWrighfy. Laing, 3 Barnewall & Cresswell, 165, however, it was held, that if one contract be lawful, and the other forbidden by law, as by the statutes against usury, and no appropriation has been made by either the debtor or creditor, so that the matter devolves on the law, the law will appropriate the payment to the lawful debt; [and see dictum in Seymour v. Marvin, II Barbour, 90. But if the payment has been actually appropriated by the debtor to the unlawful debt, the law will not, when he is sued upon the lawful one, change the application so as to meet it.] (7) The only point upon which there is any question, is as to the time when the - application must be made by the creditor. The civil law requires it to be hiade ff immediately ; it is admitted, on all hands, that greater indulgence is given by the common law, but as to the length of time allowed, there is some confusion. There are a few diota requiring that the application be made within a reasonahle time. (8) But the true principle appears to be that established in Mayor, &c., of Alexandria v. Patten and others, that if the creditor has once made the ,, appropriation, whether by verbal declaration, or rendering an account, or by conduct inducing a reliance on a particular appropriation, or bringing suit in a way which declares the application, he cannot afterwards change it; and this is the point in several cases ;(9) but subject to this, he may make the application (1) Washington Bank v, Prescott, 20 Pickering, 339, 343; Brewer v. Knapp et al., 1 Id., 332 : Smith v. Screven, 1 M'Cord, 368; but see to the contrary Ayer v. Hawkins, 19 Ver- mont, 26. (2) Hutchinson i>. Bell : Peters v. Anderson. (3) Mills V. Powkes, 5 Bingham, N. C, 465; Williams v. GritRth, 5 Meeson & Welsby, 300; see, however, Ayer v. Hawkins, 19 Vermont, 26, 30. (4) Bosanquet u. Wray, 6 Taunton, 697, 607, (hut see Birch and another v. Tebbutt, 2 Starkie, 66.) (5) Arnold v. The Mayor of Poole, 4 Manning & Granger, 860, 897. (6) Philpott V. Jones, 2 Adolphus & Ellis, 51; Cruikshanks v. Rose, 1 Moody & Kobinson, 100 ; and see Hilton v. Burley, 2 New Hampshire, 193, 196; and Biggs r. Dwight, 1 Manning & Kyland, 308. (7) Treadwell i'. Moore, 34 Maine, 115; and see Dorsey v. Wayman, 6 Gill, 69. (8) Diota of Best, J., in Simson v. Ingham, 2 Barnewall & Cresswell, 66, 76; repeated in Harker and another v. Conrad and another, 12 Sergeant A Kawle, 301, 306; in Briggs u. Williams et als., 2 Vermont, 283, 286; and in Pairchild v. Holly, 10 Connecticut, 176, 184. (9J Hill and another u. Southerland's Executors, 1 Washington, 128, 133; in White c Trumbull, 3 Green, 314, 318; and in Hilton v. Burley, 2 New Hampshire, 193, 196; see also patten: field v. Holland. 281 at any time. There is a dictum of Story, J., in U. States v. Kirkpairick, 9 Wheaton, 720, 737, repeated in some other cases ;(l) that the application can-, not be made by the creditor after a controversy has arisen. If by this is meant that after the creditor has declared his application, and a controversy involving that point has arisen, he cannot change his ground, it is no doubt true, but its correctness in any other sense cannot be admitted. The later English cases -_ show that where the creditor has not committed himself, by the mode of bring- i- ing suit, or otherwise, he may direct the appropriation, even at the trial ; of course, the application and payment must be considered as having taken place , in law, before suit brought, as the right of action must be complete and fixed » • before the commencement of the suit, but the creditor need not, in many cases, do any act to declare or manifest his election, till the trial. It is certain, how-" ever, that when it becomes proper for the creditor to declare his election, he cannot refuse to do so, and that he will not be allowed, to the inconvenience or . injury of others, to hold the application in reserve, to await the result of future occurrences; as is held in Pattison v. Hull, 9 Cowen, 747, 764 ; and probably in this sense the dictum, that he must make the application in a reasonable y time, is to be understood ; he cannot unreasonably refuse or neglect to make or f ■ declare the appropriation, when a proper regard for the rights or convenience of others requires it. (2) That the general principle is, that the creditor's right of appropriation is 'i_ indefinite, and may be exercised at any time, is established by a conclusive i^ weight of authority in England and in this country. It is implied in Goddard v. Gox, 2 Strange, 1194. In Wilkinson v. Sterne, 9 Modern, 427, where this was the point in controversy. Lord Hardwicke said, " The distinction is this : where a man is indebted by mortgage and bond, and pays money to his creditor, he must make the application, and declare to which debt he applies the money, at the very time he pays it, and he cannot make the application afterwards ; but his creditor may make the application any time after a general payment by ^ his debtor, so as he does it before an account settled between them ; . and there j. have been abundance of cases on this distinction ;" and he added, that the - testator, (the creditor,) " if he had been living, might apply it to which secu- ) rity he pleased, even now." Sir William Grant, in Clayton's Case, 1 Merivale, 606, said that he should collect from these cases, and from Newmarch v. Clay, 14 East, 239, and Peters v. Anderson, 5 Taunton, 596, that the creditor was ' authorized to make his election when he thought fit, and was not confined to \ making it at the period of payment ; but he thought that some doubt was i thrown on the principle by Meggot-v. Mills, 1 Ld. Eaymond, 287, and Da.we-v. \ Eoldsworth, Peake, 64, notwithstanding the explanation given in Peters v. An- f derson, of those eases as exceptional and founded on the statutes of Bank- .' ruptoy. It is to be observed, that in the former, Meggot v. Mills, Lord Holt expressly refused to give an absolute opinion on the point ; and that Da-we v. Hopkins v. Conrad and Lancaster, 2 Kawle, 316, 325; Martin v. Draher, 5 Watts, 644, 545; Bank of North America v. Meredith, 2 Washington, 0. C, 47 ; Allen v. Calver, 3 Denio, 285, 291. (1) Robinson & Wiggin »;. Doolittle et al., 12 Vermont, 246, 249 ; in Miliken i. Tufts, 31 Maine, 501 ; and in Goss v. Stinson, 3 Sumner, 38; in Calahan v. Eoazman, 21 Alab., 261; and in Fairohild v. Holly, 10 Connecticut, 176, 184. (2) See Carpenter v. Goin, 19 New Hampshire, 482. 282 APPLICATION OF PAYMENTS. Ilokhworth appears to have been the case of an open current account where no appropriation having been made, the court applied the payments to the earlier items. Since Clayton's Case, the decisions as to time are conclusive. In Bo- sanquet v. Wray, 6 Taunton, 597, the creditor was held entitled to make the application at the time of trial. See also Kirhy v. The Duke of Marlborough, 2 Maule and Selwyn, 18; Frazer v. Bunn, 8 Carrington & Paine, 704 ; and Campbell v. Hodgson, Gow, 74. Simpson v. Ingham, 2 Barnewall & Cresswell, 65, is precisely in point with Mayor, &e., of Alexandria v. Patten & others, ■ that when the creditor has once declared the application, he cannot change it, but that till it is declared, he may make it at any time : in that case, the cred- itors had, at the time, made a particular application by entries in their books, .but it was decided that they were not bound by such private entries ; but might make a different appropriation when they sent the account to the debtor, an appropriation not being conclusive until communicated. Philpott v. Jones, 2 Adolphus & Ellis, 41, is yet more express : the debtor having made no appli- cation, the creditor, said Lord Denman, C. J., " might elect at any time to appropriate" as he pleased; "he was not bound," said Taunton, J., '< to tell the defendant, at the time, that he made such application ; he might make it at any time before the case came under the consideration of a jury." In Mills v. Foiokes. 5 Bingham, N. 455, it was decided that the application might be directed by the creditor before the arbitrator : "he may make the appropria- tion at any time before action; Best, J., was the only judge (in Simpson v. Ingham) who said that the appropriation must be made within a reasonable time," said Tindal, C. J.; "at any time before the action commenced," said Bosanquet, J. , " the more correct view," said Coltman, J., "seems to be, that the creditor is not limited in point of time." See also Williams v Griffith, 5 Bleeson & Welsby, .300. Although it is said, in these cases, that the applica- tion must be made before action brought, yet they do not require it to be de- - clared or manifested till the controversy in court. — The American decisions are • equally satisfactory. The case of Mayor, tf-c, of Alexandria v. Patten and others, where it was the direct point in judgment, is, itself, the highest author- ity that there ever can be in American law, and it ought to be considered con- clusive; it is expressly adopted as the law. in Brady's Adm'r v. Hill ib Kcese, 1 Missouri, 315, 317, and is admitted in Hilton v. Burley, 2 New Hampshire, 193, 196. In Starret v. Barber, 20 Maine, 457, 461, it was decided that an application manifested by bringing suit within three months, was early enough : see also Lindsey v. Stevens, 5 Dana, 104, 107. In Ileilbron v. Bissel & War- ner, 1 Bailey's Equity, 430, the point is particularly and fully examined by Harper, Ch., and the conclusions arrived at, are, that the creditor's right of ap- propriation is indefinite, and that the application may be made by him at any time. See, also, Jones v. The United States, 7 Howard, 681, 690. In Moss V. Adams, 4 Iredell's Equity, 42, 51, EufiBn, C. J., after reviewing the English and American cases, concludes that the principle is settled in both countries, that the creditor, when the right of appropriation has devolved upon him, may make it at any time before suit brought : [and in Larabee v. Lambert, 32 Maine, 98, the right was " asserted at the trial." What was said, therefore, in the previous ease of Miliken v. Tufts, 31 Maine, p. 501, seems to have been abandoned.] MAYOR, ETC. V. PATTEN: FIELD V. HOLLAND. 283 If the foregoing views are correct, Chief Justice Gibson conceded too much to the admirers of the civil lave, in saying (1) that the application ought to be simultaneous with the reception, and should appear to be a part of the res gesta \ of payment. The views as to time, expressed in that case, it is believed, go } upon a wrong principle, and are not sound. When a legal appropriation of a payment has been made upon one of two or -^ more claims of a creditor against the same debtor, one of the parties cannot \ change that appropriation; (2) but it may be changed by the consent of both, , and in that case the indebtedness first discharged is revived by implication of ; law, when there is no express promise. (3) (III.) If no appropriation be made or indicated by either party, the appli- cation devolves on the law, or the court; which it is said, will direct it accord- . ing to equity. It is obvious, however, that under this head there are two ' distinct cases : 1. Where the money has been voluntarily paid by the debtor; ' 2. The other where the payment is made by the law either under execution, or under an assignment for creditors under control of the law. The former may be considered first. (1.) There is a clear difference between these cases, and it seems to be that in the former the court professes to proceed upon a presumption of the intention of . the parties, whereas, in the latter, the appropriation is purely judicial. There, is no doubt that when the appropriation of a voluntary general payment de- , volves on the court, the paramount rule is, that whenever the intention or., understanding of the parties, before or at the time, can be inferred or implied . from any circumstances, it shall prevail; (4) and when no particular inference of intention can be made from the case, the court, it seems, will be guided by a > general presumption of intention founded on reason, probability, and justice, (5) The law will apply payment only to those demands which are debts certain or capable of being rendered so, and not for uncertain and unliquidated dam- ages. (6) According to some cases, the action of the court is essentially dis- , cretionary, proceeding upon the justice of the particular case, in view of all the , circumstances attending it, and no general rule as to preferring the interest of one party or the other can be laid down;(7) but most of the authorities agree that the presumed intention, or the interest, of either the debtor or the creditor, is to guide the court, and the only question is as to whose interests are to havej the control. By the civil law, that application shall be made, which is most beneficial to the debtor. It is believed that the rule of the common law is direclly the reverse; and that the general and predominant principle is, that that application will be made by the law, which it is to be presumed that the (1) Logan V. Mason, 6 Watts &> Sergeant, 9, 14. (2) See Shaw et al. o. Br. Bank at Decatur, 16 Alabama, 708. f 3) Rundlett v. Small, 25 Miiine, 29, 31. (4) See Emery v. Tichout, 13 Vermont, 15, 17 ; Robinson & Wiggin v. Doolittle et al., 12 Id. 246; Hillyer v. Vaughan, 1 J. J. Marshall, 583 ; The Stamford Bank v. Benedict, 15 Connec- ticut, 438, 443; Chestnut v. "Wheelwright, Id., 562, 668; Caldwell i. Wentworth, 14 New Hampshire, 431, 440. (6) See Chitty v. Naish, 2 Bowling, 611; Portland Bank v. Brown, 22 Maine, 295; Bayley V. Wynkoop, 6 Gilman, 449, 452; and Benny v. Rhodes, 18 Missouri, 153. (6) Ramsour v. Thomas, 10 Iredell, 165, 168. (7) Smith V. Lloyd, 11 Leigh, 612, 617. 284 APPLICATION OF PAYMENTS. creditor would have made, or, which it is his interest to have made. The general principle of preferring the debtor's interest is denied by Tindal, C. J., in Mills V. Fowkes, 5 Bingham, N. C, 455, 461, and Harper, Ch., in Eeilhron V. Blssell & Warner, 1 Bailey's Equity, 430, 435, to be the rule in our law. If it be true that the court in making its appropriation, proceeds upon a pre- , sumption of intention, then, the principle which devolves on the creditor the ! right to apply a general payment, and the cases which carry forward the exer- cise of the right to the very moment of judicial decision, seem to determine the question in favour of the creditor : and indeed in Mills v. Fowhes, 5 Binghams N. C., 455, Ghitty v. Naish, 2 Dowling, 511, Bosanquet v. Wrai^, 6 Taunton, 597, and several other cases cited above, the application in favour of the creditor ; seems to have been the act of the court. The application of a payment by ' a creditor is an act of the mind, and a matter of intention : the entry or decla- , ration of it by word or act, is but the manifestation and evidence of it ; if, after ; the payment, up to the moment when the appropriation passes to the law, the creditor has the exclusive right to apply, which is agreed by all, the presump- tion by the law that he did appropriate it accordingly, is a plain conclusion of sense. The relative equities of the parties cannot vary with the different distances of time after the payment, no act to alter their rights or equities ; having been done by either; if it be just to delegate the application to the ■ creditor, during the period which elapses before the appropriation vests in the law, it cannot be just after that to prefer the interest of the debtor. To give the creditor the right to apply at discretion for a certain time, is to adopt the principle of consulting his interests. It would be contradictory, for a judicial tribunal after the payment, first to explore and obey the indication of the creditor's intention, as a matter of fact, and then to seek and follow a presump- tion of the debtor's intention as a matter of law. The civil law consistently, required the creditor, in exercising his right of application, to consult the interest of the debtor : the decisions which eliminate that rule from our law, seem, by inevitable force of common sense, to extinguish the other, which re- quires the court to follow the debtor's interests. In fact, the rules in the civil i and common law, are distinct and opposed : the former empowers the debtor, • ' in effect, to control the application of his payment, indefinitely ; the latter " vests the appropriation of a general payment in the creditor, absolutely. The ; true principle is believed to be that adopted in Field v. Holland ; that when the determination of the application devolves on the court, it shall be referred to that debt which is the least secured ; to a simple contract debt or open ' account, for example, rather than to a mortgage, judgment, bond, or bond with sureties. Supposing the court to be guided merely by its own notions of equity and justice, the equity in all these ca.ses seems to be entirely and powerfully in favour of the creditor. Where one debt is by simple contract, and the other by a higher security, as both are equally and continually due in conscience, it is equity that the application should be such as to save the operation of the Statute of Limitations. If, besides this, the simple contract is an open account, on which interest is not given, it is equity that the payment should be ascribed to that debt for the non-payment of which there is no compensation to the creditor, in preference to a bond debt for the detention of which he is compen- ■ sated. But the case where one debt is secured by mortgage or judgment, and V. patten: field v. Holland. 285 the other is unsecured, is that in which the equity of the creditor is least ques- tionable. One foundation of the creditor's equities on the subject, is the prin- - ciple that he is not bound to receive a partial payment or tender. It is just,- therefore, that when he has accepted it, it should be intended that he accepted ^ it on his own terms. In proportion as one security is better than the other, the 7 presumption strengthens that the payment was received on account of the most precarious debt; and when one of the securities is of so high and absolute a,. kind, as to be, not only perfectly satisfactory, but even desirable as an invest- ment, the presumption becomes irresistible. No creditor on mortgage, would,- in ordinary cases, consent to accept a partial payment on account; and if the> mortgagor, indebted at the same time, on simple contract, make a general pay- •, ment, it would be inequitable to apply it in a way, which, had it been expressed to the creditor at the time, he would have rejected the payment altogether. : Security for a debt is an appropriation of that specific property to that particu-, lar debt, and it becomes a natural presumption that other payments were in- tended on other accounts. It is difficult to see how an equity can arise to a defaulter from the non-performance of his obligations. On the contrary it is the moral duty of the debtor, as his breach of promise, necessarily, to some extent, injures the creditor, to see that when he does perform, out of time, a part of what he ought to have done, in whole, before, he shall do it in a man- ner to diminish as far as possible, or at least not increase, the loss of the cred- itor. The taking of security for a debt proves that the personal security of '. the debtor was insufficient to procure the loan, or the indulgence in the pay- ment, and shows that a favour has been conferred by the creditor, who certainly ! acquires an equity that his indulgence shall not prove an injury to him, and that his rights shall be protected in the debtor's provision for obligations that are equally due in conscience. The authorities are all but unanimous in estab-^ lishing the principle that the law will apply a payment to the debt which is^ least secured. As to the case, where one debt is by bond, or bond with sureties, and the ' other by simple contract. In Hammer's Ad'r v. Rochester, 2 J. J. Marshall, 144, the court, below, had applied general payments to the discharge of speci- alty debts which bore interest, in preference to simple contract liabilities which were earlier in time ; but the court above, reversed the appropriation ; saying, " In case of litigation, the chancellor would see that the payments were applied so as to effectuate justice. Thus, the chancellor should not apply the credits to the specialty debts, and leave unpaid a simple contract, which would thereafter ;' be barred by the Statute of Limitations. The payment of debts, likewise, in the order of time they become due, is a circumstance which should not be with- ' out its influence." In Blanion v. Rice, 5 Monroe, 253, the complainant had undertaken to pay the defendants certain claims due to them by a third person : one of these was due by a replevin bond, in which the complainant was surety, and the others by a simple undertaking not yet settled by judgment : a general payment having been made, the court said, " It is evident that the demand which the complainant insists upon to be first extinguished, is best secured, and in such a case it is deemed equitable, to apply the credit to the debt, the secu- rity of which is most precarious, — according to the case of Field v. Holland, 6 Cranch, 8."(1) The recent case of the Stamford Bank v. Benedict, 15 Con-y (S) See also Plomer et als. v. Long, 1 Starkie, 122; and Smith v. LoyJ, 11 Leigh, 512, 617 286 APPLICATION OF PAYMENTS. neoticut, 438, 443, 445, is a strong authority to the point that a surety has no equity whatever to control for his advantage, an application of a payment when made by a court of equity; but that on the contrary, a court of equity will direct an unappropriated application to that debt for which the surety is not bound, upon the principle of discharging the most precarious debt.(l) Upon the case where one debt is a charge on the property of the debtor, as, by mortgage or judgment, the authorities are numerous. Anonymous, 8 Mod- ern, 236, is in point. A judgment debtor, who owed other debts also, sought to apply to the judgment a sum of money which he had paid indefinitely, on account. The court said, that " where it appears that money is paid indefi- nitely, the creditor has election to declare on what account he received it. Therefore, if the debtor in the principal case would have this payment applied to the judgment, upon equitable terms, he should likewise pay or tender all the money due to the plaintiff on simple contract, or otherwise, as far as the penalty of the judgment covers such debts : for this court will not compel a creditor by judgment to accept a less sum than is due on the judgment, upon the account of any former indefinite payments, when there were other accounts depending between the parties, unless the defendant will consent to bring in all that is due to the plaintiff." See, also, Wilkinson v. Sterne, 9 Id. 299, where Lord Hardwioke said, that " a creditor on security, and at the same time a tenant of an estate, shall not be obliged, unless there is a particular agreement to that purpose, to take his debt by driblets : id est, to take the overplus of the rent in his hands in part of payment to reduce the principal after deduction of the interest due on his debt." In Chitty v. Naish, 2 Dowling, 511, a gen- eral payment having been made, where one debt was due by judgment on a bond with warrant, and others by simple contract, the master, on a reference to him, decided that the payment should be applied so as to leave the judgment security in force, and this was sustained by the court, upon the ground that the creditor, after a general payment, had a right to apply as he pleased. See, also. Brazier v. Bryant, Id. 477. This was the case of Field v. Holland; there general payments were made, and debts were due by judgment, and by instru- ments on which there were no judgments; and, the application devolving on the court, it was decided that the money should first be appropriated to the demands on which there was no judgment : " It being equitable," said Chief Justice Marshall, " that the whole debt should be paid, it cannot be inequi- table to extinguish first those debts for which the security is most precarious." Mr. Justice Cowen, in Pattison v. Hull, 9 Cowen, 771, had satisfied himself that he had consigned to insignificance this conclusive authority, by observing that, in this case, the books do not appear to have been consulted. It should be remembered, however, that there are some judges who consult more books than they quote, as there are others who quote more books than they under- stand. The authority of Field v. Holland has been generally sustained in this country ; [though Justice Gowen's view has been referred to as being appa- rently law in his own state.] (2) In Planters' Bank v. Stockman, 1 Freeman's (1) See also, Chester v. Wheelwright, Id., 562, 56S ; Vance ». Monroe, 4 Grattan, 53, appears to be to the same effect. See also, Upham and others v. Lefavour, 11 Metcalf, 174, 185 ; The Ordinary v. M'CoUum, 3 Strobhart, 494; and Backhouse and others v. Fatten and others, 5 Peters, 161, 168. (2) Dews V. Morewood, 10 Barbour, 191. MAYOE, ETC. V. PATTEN: FIELD V. HOLLAND. 287 Chancery (Mississippi), 502, 504, the question was as to a set-off j the defend- ant seeking to set off a debt due to him by complainant. The court observed that the bill showed that the complainant had another claim, separate from the mortgage, equal to the set-off. "That," said the court, "is a complete answer to the defendant's claim of set-off against the mortgage. It is a well-settledi rule, that where a creditor has two claims against the same debtor, one well) secured and the other not, upon a payment being made, the court will apply] the same to the debt for which no security was taken ; and, by analogy of/ principle, the court will make the same application of a set-off." "If neither party elect," said the court in Briggs v. Williams et ah., 2 Vermont, 283, 286,, "the law will make the application, which requires that the debts which have i- the most precarious security should be first extinguished. And the court are bound to carry into effect the object of the law; that is, so to apply the pay-"" ment that the creditor may obtain satisfaction of his debt."(l) "When no express appropriation is made by the creditor or debtor," said Woodbury, J.,,,, in Hilton v. Burley, 2 New Hampshire, 193, 196, " the court, at the trial, if >-' more than one debt exists, should direct the payment to be applied to the debt not secured, if one of them be secured." In Blaclcstone Bank v. Hill, 10 Pickering, 129, 133, this principle is expressly admitted as applicable to a case where the payment is voluntary by the debtor. See, also, Capen v. Alden and Trustee, 5 Metcalf, 268. In like manner, in Jones v. Kilgore, 2 Richardson' p Equity, 64, 65, the dictum of Johnston, Oh., is, that " if neither party has fixed the application, it devolves upon the court, and will be made pro rata, to the demands held by him who receives the money against him who paid it : or ; if one of the demands be less secured than the other, the application will be ■ made to it in the first instance." In North Carolina, it is fully settled that ; the law will apply a general payment to that debt of which the security is most/ precarious. (2) [The principle is no other than that which has been frequently asserted in the case where debts are of different dates. In such cases, in the absence of all appropriation by either party, the earliest charges, as they are first ^ due, are paid in preference to later ones;(3) though the rule may be to be under- stood in regard to items of the same account falling due at different times.] (4) There are, however, two reported cases to a contrary effect, deciding that where one debt is by mortgage or judgment, and another by simple contract, \ the appropriation, if referred to the law, shall be made to the former, as being <. the more burdensome to the debtor. These cases are, Dorsey v. Gassaway, 2 -^ Harris & Johnson, 402, 412, and Paiiison v. Hull, 9 Cowen, 747, 764, 772. There is a dictum to the same effect in Gwinn v. Whitalcer, 1 Harris & John- son, 754, 755; which is approved of by Redfield, J., in Rohinsoii & Wiggin v. Doolittle et al., 12 "Vermont, 246. See, also, Anonynwus, 12 Modern, 559. • These opinions appear to have been grounded on the civil law; and being • opposed to so great a weight of authority on the other side, must be considered - erroneous. The case of Dent et al. v. The State Bank, 12 Alabama, 275, which gives the debtor the right of determining the application, even upon the (1) See also Emery v. Tichout, 13 Barbour, 15. (2) Moss I'. Adams, 4 Iredell's Equity, 42; Ramsbur v. Thomas, 10 Iredell, 165, 168. (3) Livermore v. Rand, 6 Foster, 91 ; Parks, Baldwin & Parks r. Ingram & Parks, 2 Id. 283 ; Thompson v. Phelan, Id., 350; Miliken v. Tufts, 31 Maine, 500. (4) Callahan v. Boazman, 21 Alab.,-251. 288 APPLICATION OF PAYMENTS. trial, rests upon no foundation of principle, is wholly erroneous, [and may be considered overruled in the later case of Oalalian v. Bcazman, 21 Id. "247 ;] the creditor, in the former case, had undoubtedly made an application, by bringing suit. There may be a distinction, perhaps, in equity, between the cases where a partial payment is made, and where the whole sum due is paid, without appro- priation. In all cases, perhaps, it may be presumed that the debtor intended to pay upon the debt which was most burdensome to him ; but the creditor has a paramount equity in the case of a partial payment made in silence, founded on the circumstance that he is not required to receive such a payment. But when the whole sum due is paid, as the creditor is obliged to receive it, 'equity, perhaps, might presume that he received it on the debtor's terms, and might supply the want of an express declaration of intention by the debtor at the time. And this appears to be the purpose of the case of Anonymous. 12 Modern, 559, which consists of this dictum : " If one owes forty pounds by bond, for the payment of twenty at such a day, and twenty pounds by contract to the same person, payable at the same day; and at the day he pays twenty pounds, without telling for which it is, it shall be a payment in equity upon the bond, because that is most penal to him ;" and the dictum in Proiose v. WortMnge, 2 Brownlow, 107, that, "If debt be due by obligation, and another debt be due by the same debtor to the same debtee of equal sum, and the debtor pay one sum generally, this shall be intended payment upon the obliga- tion," appears to be the same thing, by the case being part of two debts equal in amount. We might therefore, perhaps, take the distinction, that where the debts are burdensome in unequal degrees, a general payment to the exact amount of the debts, if they are for the same sum, or to the amount of the more burdensome one, that is, such a payment as would be a good tender upon the more burdensome debt, shall by the court be presumed to be appropriated according to the debtor's interests, but, in case of a partial payment, according to the creditor's; and thus the eases may be reconciled. But it cannot at present be said that such a distinction is established ; and the adoption of such subtle diflFerences tends to little else than perplexity and confusion. There are some opinions to be found to the effect that if one debt carries interest and the other does not, the appropriation of an unapplied payment shall be to the debt which carries interest, because it is the most burdensome to the debtor; dicta in Gwinn v. Whitaher, 1 Harris & Johnson, 754, 755, and in Bacon v. Brou-nc, 1 Bibb, 334, 335, and in Blanion v. Rice, 5 Monroe, 253, and see the decision in Biissey v. Grant's admr., 10 Humphrey, 242 ; though Blanion v. Rice proves that this equity or presumption in favour of the debtor will yield to the antagonist one in favour of the creditor arising from the interest-bearing debt being better secured ; which appears to be an incon- sistency. All these dicta seem to be derived from Hcyward v. Lmnax, 1 Ver- non, 24. The case itself consists merely of a dictum, how, when, or by whom made, does not appear, that " where a man owes money on a mortgage, and other moneys to the same person on account, for which he is not to pay any interest, and he makes a general payment, without mentioning it to be in dis- charge of the mortgage, or of the moneys due upon the account ; it shall be taken to have been paid towards discharge of the money due on the mortgage; because it is natural to suppose, that a man wo.uld rather elect to pay off the MAYOE, ETC. V. PATTEN: FIELD V. HOLLAND. 289 money for wliicli interest was to be paid, than the money due on account, for j which no interest is payable." It is to be observed, that the author of the first ■volume of Equity Cases Abridged, in copying this decision, 147 D. pi. 1, has subjoined "but §.," as if either the report or the the opinion was of doubtful correctness ; and Vernon, where not fortified by the Register, as he is not in this case, enjoys no character for accuracy, while First Equity Cases Abridged is a book of high authority. (1) However, whatever support this principle might be thought to derive from Heyioard v. Lomax, is conclusively destroyed by Manning v. Westerne, 2 Vernon, 606, decided twenty-six years later, the\ accuracy and authority of which, as appears by the decree in the Register's Book, are unquestionable. In this case, there were two contracts or debts for iron furnished by the defendant, an ironmonger, to the plaintifiF, an iron manu- facturer j the first without, the second with interest; the former, as would appear by the printed report, being by simple contract, on a running account, and the latter by speciality : a general payment had been made, which the, payor had entered in his books as paid on the second account, and claimed now to have so applied ; but the Lord Chancellor said, that the rule of law, quic- quid solvitur, solvitur secundum modum solventis, is to be understood, when at the time of payment he that pays the money declares upon what account he pays it; but if the payment is general, the application is in the party who receives the money, and the entries in the defendant's books are not sufficient ' to make the application : and accordingly decreed that the payments were to be applied to the debts in the order of time. This case establishes that the; presumption of intention afforded by the matter of interest, even when fortified > by the evidence of a private entry, is not suflSoient to countervail, either the creditor's right, or the natural propriety, of applying a payment to debts in the order of time, or to the debt that is least secured. There seems never to ' have been in England or America, an adjudged case, in which the principle of appropriating a general payment to a debt carrying interest, rather than to one without interest, has been applied; for Heyioard v. Lomax seems to be nothing but a dictum. It may be observed, also, that the author of the work called "The Grounds and Rudiments of Law and Equity," which is a book of considerable research and discrimination, in citing (at p. 282) the case in 1 Vern. 24, adds, "Qusere sur cest case;" and, afterwards (p. 283), citing 1 Vern, 34, 45, and 2 Vern. 606, 607, adds, after the last, the following remark : " See the two next fore- going cases, (viz. 1 Vern. 24, and 1 Id. 34, 35,) and qusere, though this, (viz. 2 Vern. 606, 607,) I conceive, is the more equitable resolution, that where the payment is general, the application should be in the receiver; for else the payer might defer the debt which carries interest, and so ease himself of that charge against both the interest and intention of the debtee ; and besides, this resolu- tion, according to my apprehension, squares with the rule, That every man's act is to be construed most strongly against the actor." There is, however, a general rule in the law, which might be confused with this, but which is in principle directly opposed to it, and the existence of which necessarily overthrows the other ; that is, the general rule of applying a pay- ment to interest rather than principal. For example, if there be but one debt, (1) Wallace's Reporters, Sd edt'n, 305, 307. VOL. I. — 19 290 APPLICATION OF PAYMEXTS. and interest due upon it, a general payment will be applied to the interest first ' (as is more fully stated presently); and if there be several debts of the same degree, all carrying interest, a payment will be applied to extinguish the inter- est of all the debts, before reducing the principal of any onej(l) and, upon the same ground, if one debt carries interest and the other does not, 'probably the court would direct the interest due to be discharged before the principal of either was reduced — that is, the interest-bearing debt would attract the payment to itself, to the extent of the interest. But this general rule really proceeds upon a preference of the creditor' & claims : and the same reason which induces the law first to reduce the interest of an interest-bearing debt, would incline it to discharge \!a.% princiipal of a debt which did not carry inter- est, in preference to that of one which did bear interest. This is illustrated by Steele v. Taylor, where it was decided, that in case of several judgments bearing interest, a payment was properly applied to the interest due upon all of them. "When a debtor fails to make prompt payment of his debt," said the court in that case, "the law has fixed a rate of interest that he shall pay, as a reasonable compensation to the creditor for the delay. And, as interest will not bear interest, though it be as justly due as the principal, the creditor is deprived of the use of the interest without compensation for it. It is, there- fore, just and equitable, when the credit is left to be applied by the chancellor, that it should be first applied to the extinguishment of the whole interest, or that portion of the fund, which is withheld by the debtor, that draws no inter- est." The case of a single debt bearing interest, brings to a conclusive test the comparative claims of a debt with interest and a debt without interest, to have a general payment applied : for the interest is a debt not carrying inter- est, and the principal is a debt carrying interest, and no rule in the law is set- tled by a greater weight of authority than that which determines that a partial payment is first to be applied to the interest. This rule, and that relating to an open account, have now become fixed prin- ciples of law, upon which payments are to be applied. In regard to the former, " The rule for casting interest, when partial payments have been made," said Chancellor Kent, in Comtecficut v. Jackson, 1 Johnson's Chancery, 13, 17, " is to apply the payment, in the first place, to the discharge of the interest then due. If the payment exceeds the interest, the surplus goes towards discharging the principal, and the subsequent interest is to be computed on the balance of principal remaining due. If the payment be less than the interest, the surplus of interest must not be taken to augment the principal ; but interest continues on the former principal until the period when the payments, taken together, exceed the interest duo, and then the surplus is to be applied towards discharg- ing the principal; and interest is to be computed on the balance of principal, as aforesaid." (2) Where the payment is made on a debt on which interest is (!) Steele v. Taylor, i Dana, 445, 450. (2) Ace. French v. Kennedy, 7 Barbour's P. Ct., 452; Story r. Livingston, 13 Peters, ,SOn, .371; The U. S. o. MoLemore, 4 Howard's Supreme Court, 286, 288; Dean ;.. Williams, 17 Massachusetts, 417 ; The Commonwealth r. Miller'.s Administrators, 8 Sergeant & Rawle, 452, 458; Spires v. Hamot, 8 Watts & Sergeant, 17; Smith v. The Administratrix of Sbaw, 2 Wa.-hington C. C, 167 ; Gwinn v. Whitaker, 1 Harris A Johnson, 754, 767 ; Frazier v. Hyland, Id., 08; Walters and al. v. McGirt, 8 Richardson, 2!ll ; Jones r. Ward, 10 Ycrger, 161, 170; Guthrie & Cox v. Wickliffe, 1 Marshall, 584 ; Hart d. Dorman, 2 Florida, 445, 447 ; The Union MAYOE, ETC. V. PATTEST: FIELD V. HOLLAND. 291 accruing, but before either interest or principal is payable, the rule adopted in some cases has been to apply it rateably, so as to discharge a part of the prin- cipal, and the interest on such part as is thus discharged ;(1) though, when a payment is made on a note or other debt, before maturity, or before the time when interest has begun to accrue, the debtor is not entitled to interest on the amount paid, to the time the note is due or interest begins, without an agree- ment to that efi'ect, and the payment will extinguish its own amount, and no more. (2) However, it is in the power of the debtor, at the time he makes a,; partial payment, to direct that it be applied to the principal and not the inter- est; and the creditor, if he accepts the payment, is bound by the terms on which it is made. (3) Moreover, the course of dealing, or the express or im- plied understanding, between the parties, may give sanction to another mode of making up accounts, which is the usual mercantile practice, viz., of keeping an interest account upon the payments; and when mutual accounts have been kept between merchants in this way, a court is reluctant to change the method of computation which they have agreed to observe between themselves, although the principle of it is one by which a debt will, in the course of time, be extin- guished by payments of interest only. (4) The rule with regard to an open, current account, the items of which do not form distinct debts, but are blended together in one account, is, that the pay- : ments shall be applied, as they are paid, to the charges in the order of time in ,- which they accrue. This case, in fact, does not fall within the principle of the application of payments to distinct debts, because not the items, but only the ^ balance of an account is considered as a debt, but falls under the rules upon .- which mutual accounts are cast and settled by the law. (5) And this rule will ' apply to accounts with a partnership, of which there is some change in the members, provided the account goes on as one continuous, open, and current '.^ account, as several of the preceding cases show ; but if the continuity of the ' account be broken, that is, if a new account be opened by or with the firm, / Bank of Louisiana v. Kindrick, 10 Eobinson's La., 61 ; Backus v. Minor, 3 California, 231 ; Ruasell v. Lucas, 1 Hempstead, 91 ; and otlier cases collected in note to Williams v. Hough- taling, 3 Cowen, 87. (1) Williams v. Houghtaling, 3 Cowen, 86; Stone v. Seymour, 15 Wendell, 19, 24, Jencks V. Alexander, 11 Paige, 620, 625 ; French ti. Kennedy, 7 Barbour's S. Ct., 452, 456 ; see, how- ever, De Bruhl v. Neuffer, 1 Strobhart, 426, 431. (2) Handlcy v. Dobson's Adm'r, 7 Alabama, 359, 361, (3) Pindall's Ex'x, &c. v. Bank of Marietta, 10 Leigh, 481, 484; Miller v. Trevilian, Ac, 2 Robinson's Virginia, 2, 27, (4) Stoughton V. Lynch, 2 Johnson's Chancery, 210, 214; Hart v. Dewey, 2 Paige, 207; see Dunshee v. Parmela, Adm'r., 19 Vermont, 173, 175; and see Backus v. Minor, 3 California, 231. (5) Clayton's Case, 1 Merivale, 608 ; Bodenham v. Purchas, 2 Barnewall & Alderson, 39 ; Brooke v. Enderby, 2 Broderip & Bingham, 70; Smith -u. Wigley, 3 Moore & Scott, 174; U. States V. Kirkpatriok, 9 Wheaton, 720, 737 ; Jones v. The U. S., 7 Howard, 681, 682 ; The XJ. S. V. Bradbury et al., Davies, 146, 148 ; Boody et al. v. The U. S., 1 Woodbury & Minot, 151, 168; Postmaster-General ti. Eurber, Ic, 4 Mason, 333 ; United States ii.Wardwell etal., 5 Id., 82, 87 ; Gass v. Stinaon, 3 Sumner, 99, 110 ; McKenzie v. Nevius, 22 Maine, 138, 148 ; Miller v. Miller, 23 Id., 22, 24; Smith v. Loyd, 11 Leigh, 512, 518 ; Fairchild v. Holly, 10 Con- necticut, 176; Allen .;. Culver, 3 Denio, 285, 291 ; Dows v. Morewood, 10 Barb., 189; Liver- more V. Band, 6 Foster, 91. 292 .APPLICATION OF PAYMENTS. upou the coming ia or going out of a member, distinct from the old account, the creditor may apply a general payment to the new account if he pleases.(l) 'And this rule, allowing or requiring a payment to be applied to the earliest item in an account, will not prevail, where a different intention in both parties, ' or on the debtor's part, is expressly shown, or is to be inferred from the course ; of dealing, or from the particular circumstances of the case; (2) nor will it pre- ' vail against the principle that the fund from which the payment is made, will control the application ; for if one indebted individually, enter afterwards into ■ partnership, a payment from the partnership funds could not be applied to his individual account. (3) Nor will it apply to those cases in which the relations between the creditor, and other parties to be affected, are such as to make it part of the contract that there shall be a different application. Thus, where a collecting or receiving officer has given bonds with different sureties, for suc- cessive periods, and becomes a defaulter, payments accruing due and paid during the period to which the second bond applies, are not as against the sureties to be considered as applied in the order of time so as to relieve the sureties in the first bond, at the expense of those in the second bond, but must be credited to the obligation for which the second set of sureties are bound ; for the contract of the sureties is, that each set is to be liable only for actual defaults during the period for which they are bound; and, however the accounts may be made up, and the payments applied, between the officer or principal debtor and the government, or creditor, the amount of default for which any set of sureties are to be made liable, is to be ascertained by the difference between the moneys received, and the moneys paid over, during the period for which they are sureties. (4) (2.) The other instance of application by the law, is where the payment is •made by the law ; in this case, the general rule is to appropriate the payment to all the debts rateably. It is, however, very difficult to determine when this principle becomes properly applicable. In Blackstone Bank v. Hill, 10 Picke • ring, 129, 133, while the court held the general principle of the creditor's right to appropriate money, paid generally by the debtor, to be clear, where it could be applied, they said that it had place only in oases of voluntary payments, and did not apply to a payment by process of law, or in invitiim; and decided accordingly, that where judgment had been recovered on several notes, which thus became consolidated into one debt, and a part of the judgment was satisfied by execution, the creditor had no right to apply the money raised by the execu- tion to one note, but that all the notes must be considered as satisfied proportion- (1) Simeon v. Ingham, 2 BarneifaU & Cresswell, 65 ; Logan v. Mason, 6 Watts & Sergeant, 9. (2) Taylor v. Kymer, 3 Barnewall & Adolphus, .320, 333 ; Henniker v. Wigg, 4 Queen's Bench, 792; Capen v. Aldeu and Trustee, 5 Metcalf, 268, 272; Dulles v. De Forest, 19 Con- necticut, 191, 304. (3) Thompson and another v. Brown and Weston, 1 Moody & Malkin, 40; see Fairchild v. Holly, 10 Connecticut, 176. (4) U. S. V. January and Patterson, 7 Cranch, 572 ; Jones v. The United States, 7 Howard, 631, 688 ; Seymour v. Van Slyck, 8 Wendell, 404 ; Stone v. Seymour, 15 Id., 19 ; Postmaster- (leneral v. Norvell, Gilpin, 107, 126 ; Boring et als. v. Williams, Treas'r, 17 Alabama, 611, 525 ; and see Parr and others v. Howlin, Aleock and Napier, 197 ; Williams v. Rawlinson, 10 Moore, 362, 371. MAYOR, ETC. V. PATTEN: FIELD V. HOLLAND. 293 ably.(l) In like manner, in Commercial Bank v. Cunningham, 24 Pickering, f 270 276, it was decided, that, where an insolvent debtor assigned his property- for the benefit of creditors, and a payment was received under it by a creditor, some of whose debts were secured, the creditor had no right to apply the money; to the debt which is not secured, " for, the application is made by law accord-^' ing to the circumstances and justice of the case;" and accordingly, the money was ordered to be applied to all the debts rateably. In Maine, however, this' ■ distinction does not appear to have been adverted to. In a case where a judg ment was recovered on two securities, one of which was absolute, and the other but collateral security, and money was raised by execution, it was held that the creditor might have applied it to either debt, and that in the absence of any actual application by him, it should be applied according to a presumption; of his intention, and therefore to the debt due absolutely, rather than to that due as surety. (2) In some courts, it has been decided that in case of a mort-l gage, or deed of trust, to secure several notes, due at different times, the appli- cation of the money made under the instrument, shall be to all the notes rateably, if all are due at the time the money is made :(3) but in The Bank of the United States v. Singer & others, 13 Ohio, 240, it was held, that if a . mortgage be given to secure several notes due at successive times, or a sum ' j due by instalments, the earliest due are to be first paid in full out of the pro-V' ceeds of the mortgage, because the obligation to pay the first might have been { enforced against the property before any default in the latter payments. If '', there were liens attaching successively, it would no doubt be so; see Newton ; V. Nunnally, 4 Georgia, 356 : but where the lien accrues at one time for sue- ,: cessive debts, it ought generally to be considered as for the equal benefit of all \ the debts existing at the time the security becomes productive in money. lu;'' Stamford Bank v. Benedict, 15 Connecticut, 438, this doctrine of rateable application in a case of this kind, seems not to have been attended to, but the application of moneys made under a mortgage given to secure several debts, was made according to the creditor's will or interest. [Directly opposed to "\ this seems to be Larahee v. Lumberi, 34 Maine, 99, which may perhaps be ■ regarded as within the class of payments made by law. In that case a mort- gagee holding several notes secured by mortgage on a house of which he had taken a transfer of a policy of insurance received from an Insurance Company, indemnity for a loss of the house by fire; and it was decided that as the debtor did not make the payment he had at no time a right of appropriation in the matter; and that the creditor having sued his debtor on the note last due, had a right on the trial to appropriate the money which he had received, first to the, payment of interest on all the notes and then to the principal of the notes in the order of their respective pay days. And the court, apparently regard; this as the application which the law would make.] (1) See also Merrimack Co. Bank u. Brown, 12 New Hampshire, .321, 327 ; and see 'Waller V. Lacy, 1 Manning & Granger, 54, 65; and Perris v. Roberts, 1 Vernon, 34; S. C, 2 Cli.-in. Ca., 84. (2) Bank of Portland v. Brown, 22 Maine, 295; see also Starrettu. Barber, 20 Id., 467; and The Stamford Bank v. Benedict, 16 Connecticut, 438, 443. (3) Parker, Appellant v. Mercer, 6 Howard's Mississippi, 320; Cage v. Her et al., 5 Smedea A Marshall, 410. 294 APPLICATION OF PAYMENTS. With great-, deference to the learning and acuteness of Sir Wm Grant in Pcvdi/nes y. Noble, &o., — Clayton's Case, 1 Merivale, 605, and to others who ^ hdve followed his opinions, (1) the opinion is ventured, that the rules by which ' the application of indefinite payments is, to be governed, in the common law, are not borrowed from the civil law, but are of native origin and growth. ' They seem to be a simple application of principles which have long been settled with regard to election. One of these principles, as stated by Lord Coke, is, that, " In case election be given of two several things, always he who is the first agent, and who ought to do the first act, shall have the election." Another is, " When a thing passeth to the donee, or grantee, and the donee or grantee hath election in wliat manner or degree he will take it, there the interest passeth presently, and the party, his heirs or executors, may make election when they will :" 2 Reports, 37 a ; Co. Litt. 145 a. The second of these points, is more fully explained in the fourth resolution in Heyward's Case, 2 Reports, 36 a; that, " where the things are several, nothing passes before election, and the '. election ought to be precedent; .... but when one only thing is granted, and the party hath election to take it in one manner or another, there the inter- est vests presently, and it shall be always in the election of the grantee or his . executors at anj/ time to elect in what manner or degree he will claim it." By the first of these maxims, the payor having the first act to do, has the right to determine upon which account the payment shall be made : and the payor's right is put upon this ground in Stracy v. Saunders, 7 Modern, 123, where it is said, if " A man owes money by bond, and also by award, suppose twenty pounds by each, and he pays one twenty pounds, it shall be upon which of both he pleases; for he, and not the receivers, is the first agent." But after the act is done, and the ownership of the money has vested absolutely in the creditor, his election as to the manner in which he will take the payment, is, according to the second maxim, continuing and indefinite, the surrender of the election as to manner, being after the interest has passed, absolute and total. Courts of equity appear to proceed upon the principle of following the common law, as far as it is applicable ; and when the common law rule cannot be applied, they go upon the principle that it is equity, that all debts should be paid, and will apply a general payment to that debt of which the security is most precarious. The principle adopted by the common law appears to be the reasonable one, that the ownership of the money determines the right of appropriation. Before the money is paid, that is, while it belongs to the debtor, he may direct any ap- plication that he pleases; and any application, directed by him, during that period, will prevail. But if he pays the money without directing any appro- priation, the money becomes absolutely the property of the creditor; and being his own, he may do with it what he will. The fine equities supposed to exist in favour of the debtor, even after he has paid unconditionally, can never coun- tervail the gross equity which a man has to use his own property as he chooses. To allow a debtor to follow and control the application of money of which the \entire ownership is in another, would be inconsistent with the reason and anal- ogies of the common law. If the foregoing opinions be sound, the views expressed in the note to Patti- (1) As in Bussey ti. Grant, 10 Humphreys, 243, Gass v. Stinson, 3 Sumner, 99, 110; MilUken v. Tufts, 31 Maine, 500. MAYOR, ETC. V. PATTEN: FIELD V. HOLLAND. 295 son V. Rail, 9 Cowen, 773, and in the case of Gass v. Sliiison, 3 Sumner, 99,^ 110, in MilUken v. Tafts, (founded on it) 31 Maine, 500; Bussey v. Gant'sl Adm'r, 10 Humphreys, 242, and in the article " On the application of Pay- ments," in the American Law Magazine, vol. 1, p. 31, cannot be considered asi well founded. The law of the case where the application of a voluntary pay-i! ment is made by the parties, and of the case where it devolves on the court,! appears to be conceived and defined with absolute precision in Mayor, c&c, of Alexandria v. Patten & others, and Field v. Holland.{\) The annotator has much satisfaction in referring to the able opinion of Ruffin, C. J., in Moss V. Adams, 4 Iredell's Equity, 42, which, though pronounced before the publication of the first edition of the present work, was not pub- i lished until after it, and was overlooked when the second edition was prepared, i The views expressed in that opinion will be found to agree in their general ] character with those upon which the preceding note is founded. The chief jus- tice, in that case, distinctly recognises, that, in some important particulars on this subject, the rules of the common law are directly opposite to those of the civil law. " Although the common law," he remarks, " may be indebted to the civil law for the leading rule, which gives the option first to the debtor, and then, in succession, to the creditor, and to the law ; yet it is certain, that the Roman law has not been followed throughout, but the English and Ameri- can courts have departed from it in several instances, and, indeed, reversed it, f and allowed the creditor to make his election long posterior to the payment, and after material changes of the circumstances of the parties ; and, in other instances, the law has applied the payments according to the interest and pre- sumed intention of the creditor, as, for example, to the debt not bearing inter, est, or to the one more precariously secured, or one barred by the statute of limitations, or the like." (1) ["The doctrine [of the application, &o.]," say? Tenny, J., Milliken v. Tufts, 31 Maine, 50, "has been borrowed from the Roman Law, and under its rules payments have been applied to the discharge of debts which have been secured hy mortgat/e or in other waya, rather than to those which are not; to claims which had been long payable in preference to those which had more recently arrived at maturity." But surely the rule, if it is to be judged of by such illus- trations, acts on principles of clear repugnancy in different cases j in one case acting for the debtor's benefit, in the other for the creditor's.] 296 NEGOTIABILITY OF INSTRUMENTS. NEGOTIABILITY OF INSTRUMENTS. OVERTON w. TYLER ET AL. In the Supreme Court of Pennsylvania. SUNBURY, JULY TERM, 1846. [reported from 3 PENNSYLVANIA STATE, 346-318.J An instrument "having the usual words of a note payalle to hearer, and in addition an authority to any attorney to enter a judgment in favour of the holder for the amount of the note with costs, coupled with a release of errors and a waiver of stay of execution, and of the right to an inquisition and appraisement, is not a negotiable note, and consequently an execution may issue on a judgment {previously con- fessed) on the day after the day fixed for payment — the drawer not being entitled to the days of grace. One Smith gave to Tyler the following instrument : "flOOO. Athens, February 15, 1845. " For value received, I promise to pay Francis Tyler and Levi AVest- hrook, or bearer, one thousand dollars, with interest, by the first day of June next. And I do hereby authorize any attorney of any court of record in Pennsylvania, to appear for me and confess judgment for the above sum to the holder of this single bill, with costs of suit, hereby releasing all errors and waiving stay of execution and the right of in- quisition on real estate ; also waiving the right of having any of my property appraised which may be levied upon, by virtue of any execu- tion issued for the above sum. "L. Smith." On this, a judgment was entered; and execution issued on the second day of June, 1845. On a question between the plaintiff, Tyler, and another execution creditor of Smith, whose execution bore a later date than Tyler's, the question was, whether Smith's obligation became due on the 1st of June, 1845, or whether it became due only on the 4th ; — in other words whether it was or was not a negotiable instrument enti- tled to days of grace: OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 297 The court below gave judgment for Tyler, and this writ of error issued. Qase and Overton, for plaintiff in error : The days of grace are part of the contract.(l) Nor will the fact, that a warrant of attorney is attached, alter or in any way affect that right — it is to be construed as if the note and the warrant were distinct instruments. A suit then, not being maintainable before the 5th of June, of course no execution could issue for the same debt at an earlier period. Elwell and Willeston, contra, contended that by the agreement the judgment was to be entered as for an amount due on the 1st of June, and that the character of the note, if such it was, merged in that con- tract. But there never was a privilege of the days of grace ; the judg- ment could not pass from hand to hand ; and subsequent holders would certainly be bound to defalk any payments made on account of the judgment. These are principles irreconcilable with the rules regulating commercial paper. Gibson, C. J. No case like the present, nor anything from which a principle applicable to it can be drawn, is found in the books. The note is for the payment of money ; it is payable to bearer ; and it is payable absolutely ; yet it is obvious that it was not intended to be negotiable in a commercial sense, and that the maker was not to have the usual days of grace. The debt is still between the original parties ; and the contract by which it was created is to be interpreted, like any other, by their actual meaning. If they meant to make, not a promis- sory note, within the statute of Anne, but a special agreement with power to enter up judgment on it, they are bound by the result as they themselves viewed it. Such is one of the principles of Patterson v. Poindexter, and Boker v- Hazard, 6 Watts & Serg. 221, in which, how- ever, there was no express promise. Nor would a subsequent holder take the paper on any other terms than those expressed in it. It has in it all the parts of a promissory note ; but it has more ; it contains not only a warrant to confess judgment with a release of errors, but an agreement to waive appraisement and stay of execution. But a negotiable bill or note is a courier without luggage. It is requisite that it be framed in the fewest possible words, and those importing the most certain and precise contract ; and though this requisite be a minor one, it is entitled (1) Bank of Washington u. Triplett, 1 Peters, S. C. Rep., 25; Thomas v. Shoemaker, 6 Watts i Sergeant, 179. 290 NEGOTIABILITY OF INSTRUMENTS. to weight in determining a question of intention. To be within the statute, it must be free from contingencies or conditions that would em- barrass it in its course ; for a memorandum to control it, though endorsed on it, would be incorporated with it and destroy it. But a memorandum which is merely directory or collateral, will not affect it. The warrant and stipulations incorporated with this note evince that the object of the parties was not a general, but a special one. Payment was to be made, not as is usual at so many days after date, but at a distant day certain ; yet the negotiability of the note, if it had any, as well as its separate existence, was instantly liable to be merged in a judgment, and its cir- culation arrested by the debt being attached, as an encumbrance to the maker's land ; and it was actually merged when it had nearly three months to run. Now it is hard to conceive how the commercial proper- ties of a bill or note can be extinguished before it has come to maturity. That is not all. A warrant to confess judgment, not being a mercantile instrument, or a legitimate part of one, but a thing collateral, would not pass by endorsement or delivery to a subsequent holder; and a curious question would be, whether it would survive as an accessory separated from its principal, in the hands of the payee for the benefit of his trans- feree. I am unable to see how it could authorize him to enter up judg- ment, for the use of another, on a note with which he had parted. But it may be said that his transfer would be a waiver of the warrant as a security for himself or any else ; and that subsequent holders would take the note without it. The principle is certainly applicable to a memo- randum endorsed after signing, or one written on a separate paper. But the appearance of paper with such unusual stipulations incorporated with it, would be apt to startle commercial men as to their effect on the contract of endorsement, and make them reluctant to touch it. All this shows that these parties could not have intended to impress a commer- cial character on the note, dragging after it, as it would, a train of spe- cial provisions which would materially impede its circulation. As it was not a negotiable note within the statute, the usual days of grace could not be added to the ostensible day of payment; and as the judg- ment was ripe at the expiration of that day, the execution was sustained by it, and being prior in delivery to the sheriff, was entitled to priority of satisfaction. Judgment affirmed. OVERTON V. TYLER: ETC. GERARD V. LA OOSTE. 299 M'CORMICK V. TROTTER, endorsee of LYNN. In the Supreme Court of Pennsylvania. LANCASTER, JULY, 1823. [reported, 10 SERGEANT AND RAWLE, 94-96 ] A note promising to pay A. B. or order, 500 dollars, in notes of the chartered banks of Pennsylvania, is not a negotiable note, on which the endorsee can sue in his own name. Error to the Court of Common Pleas of Dauphin County. This was an action brought by Nathan Trotter, endorsee of John Lynn, against Barnabas M'Cormick, as the maker of a promissory note, by which he promised, two months after date, to pay to John Lynn, or order, at the Harrisburg Bank, and in bank notes of the chartered banks in Pennsylvania, $500, without defalcation, for value received. On the trial, several exceptions were taken to the admission of evi- dence, and also to the charge of the court. The court below instructed the jury, that the plaintiff was not bound to prove the handwriting of John Lynn, the endorser. The jury gave a verdict for the plaintiff, and judgment was rendered accordingly. Errors were now assigned in the statement, and its amendment in the court below, and also in the charge of the court. Douglass, for the plaintiff in error. JElder, contra. The opinion of the court was delivered by Duncan, J, It is impossible to sustain this judgment. Without considering the minute objections to the original or amended statement, there are two material objections. The first strikes at the foundation of the action. The instrument was not assignable, nor the subject of the endorsement, so as to enable the assignee or endorsee, to sue the maker in his own name. Though courts of law are now in the constant habit of taking notice of the assignment of choses in action, and of giving effect to them, yet they always adhere to the formal objection, that the action should be brought in the name of the assignor, and not of the assignee. The common law relaxed the rule at a very early period as to foreign bills of exchange, and afterwards, as to inland bills of exchange, and 300 NEGOTIABILiry OF INSTRUMENTS. the statute law enables the assignee or endorsee of a promissory note to maintain an action in his own name. At a very early period of the province, 28th May, 1715, an act passed for signing bonds, specialties, and promissory notes, and enabling the assignee to sue in his own name. But this is confined to obligations, or promises to pay to any person or persons, their assigns or order, any sum of money. So is the stat. of Anne. It is the legal definition of a promissory note, that it is a promise or engagement to pay a specific sum at a time therein limited, or on demand, or at sight, to a person there named, or his order, or to bearer. No precise form of words is necessary. It is sufficient if the note amounts to an absolute promise to pay money. Stocli contracts for delivering of six per cents., are not negotiable, though they may be rendered so by express stipulation. Reed v. In- graham, 3 Dall. 505. Now the value of six per cents., is less precarious and fluctuating than the value of the notes of some chartered banks, at the time this note was given. The contract was for a specific matter, five hundred dollars, to be paid in bank notes of the chartered banks of Pennsyl- vania. It is not payable in money. There is a case in 8 Johnson, 120, Keith v. Jones, in which it was held, that a note payable to A. or bearer, in state bills or specie, is a negotiable one, and may be declared on as such It is but an imperfect sketch without much argument, and one short reason assigned. Pay- able in state bills or specie, is, however, diiferent from payment in notes of any chartered bank, because there the contract shows the view of the parties, that state bills, which was intended to mean bank notes, and specie, were precisely the same, and of the same value, that the parties had current money in view. The reason assigned, that in that state, bank notes and current money were considered the same thing, is not satisfactory to my mind, for they have not always been so con- sidered. Notes of some banks in that state have depreciated as well as in our own state. They may not, at the time this note was given, and when this decision was made. They are not in contemplation of law the same thing as money. They are not a legal tender. But on a promise to pay in bank notes, tender and refusal of bank notes, and bringing them into court with a touts temps prist, would avail the defendant. (1) And it appears to me that a contract to pay in bank notes, however certain the value, is not a contract for payment of money : for if it were, the holder of the note might refuse to receive (1) Sanger d. Stimpson, 8 Massachusetts, 260. OVEETOX V. tylee: etc. geeard v. la coste. 801 anything but specie, contrary to the special agreement of the parties. But when the present note was given, in 1817, bank notes were very far from being considered as money, and passing as such. Many of the chartered bank notes had greatly depreciated, and some of them have since sunk in value below fifty per cent. This note, so far from being payable in money, is payable in more than forty kinds of paper of differ- ent value. To declare on this as on a note for the payment of five hundred dollars, would have been a fatal variance. So much satisfied was the plaintiff below of this, that he amended his statement, by adding, payable in bank notes of the chartered banks in Pennsylvania. Thus showing his own opinion, that this was not a promissory note for pay- ment of money, I am, therefore, for these reasons, of opinion, that this is not a negotiable or transferable note for payment of money, so as to enable the assignee or endorsee to sustain an action in his own name. It was not a promise to pay money either in legal contempla- tion, or in the contemplation of the parties when they contracted. It is an unanswerable objection to the action, that the defendant might, according to his contract, have tendered the five hundred dollars in the notes of any chartered bank, however depreciated their paper might be. In a note for tnoney, nothing but current coin would be a tender. But, if the endorsee could maintain the action, he must show that he is the endorsee. It is not a note passing by delivery, payable to bearer. The maker of it did not promise to pay to the bearer, but to the order of payee. Strike out the endorsement, and what is the right of the plaintiff below. He must claim by and through the endorsement. It is his authority to call for the money. Blank endorsement transfers the legal right, because the holder may fill it up ; he is allowed so to do by the payee. But he cannot make an endorsement. The bona fide holder of a note, payable to bearer, may recover on his possession, but where payable to order, he must prove the order, which can only be done by proving the endorsement by the payee. There is no necessity to set out an endorsement in the first case, but if it is done, then it must be proved. (1) In arguing this case, it was assimilated to that to which it bears no resemblance, an action on a bill of exchange, where it is not necessary to prove the handwriting of the drawer, in an action by the endorsee against the acceptor. The reason is very obvious, for there the acceptor is liable though the bill is forged. So in an action by the endorsee against the endorser, it may not be necessary to prove the handwriting of the drawer, because the endorse- (1) Wayman v. Bend, 1 Campbell, 17J. 302 NEGOTIABILITY OF INSTRUMENTS. ment is in the nature of a new note, and if the drawer's name was forged still the endorser would be liable. But here it was necessary to set out the endorsement, and to prove it. The averment of endorsement could not, as the court supposed, be struck out, without destroying the plain- tiff's right of action. It was a material, necessary averment, the very foundation of the action, a necessary allegation, traversed by the de- fendant's plea of non assumpsit, and without proof of which, the plaintiff had no standing in court. For both these reasons, the judgment is reversed. Judgment reversed. GERARD V. LA COSTE ET AL. In the Court of Common Pleas of Philadelphia County. JUNE TERM, 1787. [reported, 1 DALLAS, 194-196.] A hill of exohange, payable to a particular person, witliout the ivords " or order," or " assigns," or other such words, is not negotiable. This action was brought against the acceptors of an inland bill of exchange, made payable to Bass and Soyer and endorsed by them after the acceptance, to the plaintiff for a valuable consideration. The bill was payable to Bass and Soyer, without the usual words "or order," "or assigns," or any other words of negotiability. The question was, whether this is a bill of exchange, which, by the law merchant, is endorsable over, so as to enable the endorsee to maintain an action on it against the acceptors, in his own name. Shippen, C. J. The court has taken some time to consider the case, not so much from their own doubts, as because, it is said, eminent law- yers, as well as judges in America, have entertained different opinions concerning it. There is certainly no precise form of words necessary to constitute a bill of exchange, yet from the earliest time to the present, merchants have agreed upon nearly the same form, which contains few or no superfluous words, terms of negotiability usually appearing to make a part of it. It is indeed generally for the benefit of trade that bills of exchange, especially foreign ones, should be assignable ; but when they are so, it must appear to be a part of the contract, and the power to OVEBTON V. TYLEE: ETC. GEEAED V. LA OOSTE. 803 assign must be contained in the bill itself. The drawer is the lawgiver, and directs the payment as he pleases ; the receiver knows the terms, acquiesces in them, and must conform. There have doubtless been many drafts made payable to the party himself, without more, generally perhaps to prevent their negotiability; — Whether these drafts can properly be called bills of exchange, even between the parties themselves, seems to have been left in some doubt by the modern judges. Certainly there are drafts, in the nature of bills of exchange, which are not strictly such as those issuing out of a con- tingent fund ; these, say the judges in 2 W. Blackstone, 1140,(1) do not operate as bills of exchange, but, when accepted, are binding be- tween the parties. The question, however, here, is not whether this would be a good bill of exchange between the drawer, payee, and acceptor, but whether it is endorsable. Marius's Advice is an old book of good authority ; in page 141, he mentions expressly such a bill of exchange as the present, and the eifect of it, and he says, that the bill not being payable to a man or Ms assigns or order, an assignment of it will not avail, but the money must be paid to the man himself. In 1 Salkeld, 126,(2) it is said, that it is by force of the words "or order" in the bill itself, that authority is given to the party to assign it by endorsement. In 3 Salkeld, 67,(3) it is ruled, that where a bill is drawn payable to a man, " or order," it is within the custom of merchants ; and such a bill may be negotiated and assigned by custom and the contract of the parties. And in 1 Salkeld, 133,(4) it is expressly said by the court, that the words "or to his order," give the authority to assign the bill by endorsement, and that without those words the drawer was not answerable to the endorsee, although the endorser might. An argument of some plausibility is drawn in favour of the plaintiff from the similarity of promissory notes to the bills of exchange. The statute of 3 & 4 of Anne appears to have two objects;— one to enable the person to whom the note is made payable, to sue the drawer ufon the note as an instrument (which he could not do before that act) and the other to enable the endorsee to maintain an action in his own name against the drawer. The words in this act which describe the note on ■which an action will lie for the payee, are said to be the same as those on which the action will lies for the endorsee, namely, that it shall be a note payable to any person, or Ms order ; and it appearing by adjudged cases, that an action will lie for the fayee although the words "or order" (1) Stuart V. Tucker. (2) Hodges v. Steward. (3) Nicholson v. Seldnith. (4) Hill et al. v. Lewis, 304 NEGOTIABILITY OF INSTRUMENTS. are not in the note, it follows (it is contended) that an action will also lie for the endorsee, without those words. If the letter of the act was strictly adhered to, certainly neither the payee, nor endorsee, could support an action on a note, which did not contain such words of nego- tiability as are mentioned in the act ; yet the construction of the judges has been, that the original payee may support an action on a note not made assignable in terms. The foundation of this construction does not fully appear in the cases, but it was probably thought consonant to the spirit of the act, as the words "or order" could have no effect, and might be supposed immaterial, in a suit brought by the payee himself against the maker of the note. But to extend this construction to the case of an endorsement, without any authority to make it appearing on the face of the note, would have been to violate not only the letter but the spirit of the act. Consequently no such case anywhere appears. On the contrary, wherever the judges speak of the effect of an endorse- ment, they always suppose the note itself to have been originally made endorsable. The case of Moore v. Manning, Comyns, 311, was the case of a promissory note originally payable to one and his order ; it was assigned without the words "or order" in the endorsement; the question was, whether the assignee could assign it again. The Chief Justice, at first, inclined that he could not, but it was afterwards re- solved by the whole court, that if the bill was originally assignable, " as it will be (say the court) if it be payable to one and his order, then to whomsoever it is assigned, he has all the interest in the bill, and may assign it as he pleases. Here the whole stress of the determination is laid upon what were the original terms of the bill, if it was made pay- able to one and his order, it was assignable, even by an endorsee without the word "order" in the endorsement; it follows, therefore, that if the bill was not originally payable to order, it was not assignable at all. The same point is determined, for the same reasons, in Edie & Laird v. The East India Company, 1 W. Blackstone, 295, where Lord Mansfield says, "the main foundation is to consider what the bill was in its origin ;" if in its original creation it was a negotiable draft, " it carries the power to assign it." In a similar case, cited in Buller's Nisi Prius, 390, the court held, that as the note was in its original creation endorsable, it would be so in the hands of the endorsee, though not so expressed in the endorsement. These cases leave no room to doubt what have been the sentiments of the courts in England upon the subject. To make bills, or notes, assignable, the power to assign them must appear in the instruments themselves ; and then, the custom of merchants, in the case of bills of OVEBTO]Sr V. TYLEE: etc. GERARD V. LA COSTE. 805 exchange, and the act of Parliament, in the case of notes, operating upon the contract of the parties, will make thena assignable. In the case before us, no such contract appears in the bill. The acceptance was an engagement to pay according to the terms of the bill to Bass and Soyer; a subsequent endorsement, not authorized by the bill, cannot vary or enlarge that engagement, so as to subject the acceptor, by the law merchant, to an action at the suit of the endorsee. Judgment for the Defendant. It is proposed to consider, here, 1. The requisites of a negotiable promissory note or bill of exchange ; and 2. Whether any other instruments or contracts are capable of being negotiable. I. The general requisites of a negotiable note or bill. The first requisite to be mentioned of a promissory note, is, that it imports, simply, a promise to pay. No particular form of words is necessary, and there need not be a promise in express language ; but an undertaking to pay must be implied upon the face of the note; and the engagement, in its legal char- acter and efifect, must be, a simple, general, and mere, promise to pay. The case of Overton v. Tyler, illustrates the important principle, that an instrument is not a promissory note within the statute, if the parties have used such lan- guage, or attached such incidents to the contract, as show that they did not intend it to be a promissory note. The substantive ground of the decision in that case, appears to have been, that the liability of the instrument, by the express agreement, to be merged, at any time, and before maturity, in a judg- ment, was necessarily repugnant both to negotiability, and to the character of promissory note. And this general principle is recognised and sustained by the opinion of Pollock, C. B., in the late case of Sibree v. Tripp, 15 Meeson & Welsby, 23, more fully stated hereafter. "It is difficult," said the Chief Baron, " to lay down a rule which shall be applicable to all cases; but it seems to me that a promissory note, whether referred to in the statute of Anne or in the text books, means something which the parties intend to be a promissory note. We cannot suppose that the legislature intended to prevent parties from making written contracts relating to the payment of money, other than bills and notes." Accordingly, the cases both in England and in this country, go upon the dis- tinctions, between an acknowledgment and a promise to pay : and between a special agreement and a simple promise to pay : and in some instances, the presence or absence of negotiable words ' or order' or < bearer,' seems to have had some effect in determining the character of the engagement. The principle applicable to bills of exchange is similar: the instrument, when accepted, must amount to a promise to pay money. — An ordinary due-bill is a promissory note: thus the forms; "Due K. & K. $325, payable on demand, October 20, 1821," and signed;(l) " Due James J., or bearer, the sum of $315, money (1) Kimball v. HuntiDgton, 10 WendoU, 675. [In Brenzer v. Wightman, 7 Watts & Sergeant, 264, a due bill in this form, "Due M. B. $204.91, for value received, May 2Sth, 1837, H. C.,'' VOL. I.— 20 306 NEGOTIABILITY OF INSTRUMENTS. borrowedthisthe20thof April, 1822. John J.;"(l) "Due J.J. F. $200 bor- rowed, October 21, 1836; C. W. C.;"(2)' and "Due L. E., or bearer, one day from date, $200.26, for value received ; as witness my hand this, &e. ,(3) have been decided to be promissory notes. (4) In like manner, " Oct. 19, 1830. Good to K. C, or order, for $30, borrowed money. J. W. M.," is a negoti- able promissory note. (5) An instrument acknowledged before a notary public, and signed with the mark of G. C, acknowledging a debt to I. H., to the amount of a certain sum, " which sum of, &o., the said G. C. obliges himself to pay the said I. H. or to his order or attorney, on his first demand, with interest from the day of the date hereof," was decided to be a promissory note. (6) But in Read & others v. Wheeler, 2 Yerger, 50, 53, it was held that though language merely implying a promise to pay would be sufiSoient, as a promise to account to the payee or order, or, an acknowledgment of a debt, to be paid to the payee, yet that a mere written acknowledgment of a debt due, is not equivalent to the terms " to be paid," and is not such an implication as will be sufficient to make a promissory note ; in that case, the declaration was on the contract as an acknowledgment, and the form of it is not set out :(7) as to the difference between an acknowledgment and a promise, compare Gra)/ v. Bow- den, 23 Pickering, 282, with Oommonwealth Insurance Company v. Whitney, 1 Metcalf, 21, 23. However, in Gummings v. Freeman, 2 Humphreys, 143, the case of Read and others v. Wkeeler is professed to be overruled, and it is said by the court that the acknowledgment of indebtedness implies a promise was held a negotiable instrument on a suit between indorser and indorsee; but the case is contrary to M'Lain v. Kutherford, 1 Hampstead (Arkansas), 46, where the court declared '' merely a simple due bill, payable to the plaintiff himself, and not to him or order," not negoti- able nor entitled to any days of grace; and can perhaps hardly be regarded otherwise than as somewhat special. A mere acknowledgment of a debt, says Mr. Byles, in his Treatise on Bills, is not a promise to pny, and does not amount to u promissory note. Byles on Bills, 84, '3d American ed. And the law was so held inFesenmayer v. Adcock, 16 M. k VV., 449, where itwas said, that an I. 0. TJ. is evidence of nothing more than an account stated. This view is also sus- tained, by the language of Chief Justice Gibson, in Patterson t.. Poindexter, 6 Watts & Serg,, 227, 231. " Nothing is a promissory note in which the promise to pay i^ merely inferential; or, as Mr. Justice Bosanquet expressed it in Home v. lledfearn, 6 Scott, 267, in which there is no more than a simple acknowledgment of the debt, with such a prom se to pay as the law will imply.'' And the better opinion no doubt is, in accordance with these authorities, that as a mere acknowledgment of a present debt, which neither contains words of negotiability nor postpones the period of payment to a future day, will receive full effect if construed as an ad- mission, it should not be carried farther or enforced as a promissory note; but the case ie obviously diiferent, when the instru'iient contains the words "order" or "bearer," or when in any way it shows an intention to create a new one, not merely to admit an antecedent obliga- tion. J. I. C. H.] (1) Johnson v. Johnson, Minor, 263. (2) Cummings i". Freeman, 2 Humphreys, 143. (3) Russell V. Whipple, 2 Cowen, 536. (4) And see Finney v. Shirley & Hoffman, 7 Missouri, 42, and Luqueer v. Prosser, 1 Hill's N. Y., 256, 259 ; S. C, 4 Id., 420. (6) Franklin v. March, 6 New Hampshire, 364. (6) Hitchcock t). Cloutier, 7 Vermont, 22 ; and see Chadwiok «. Allen, 2 Strange, 706, and Wbeatley v. Williams, 1 Meeson k Welsby, 533. (7) See also, Fisher k. Leslie, 1 Espinasse, 426, and Tompkins v. Ashby, 6 Barnewall k Cresswell, 541. OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 307 to pay, and constitutes the writing containing such acknowledgment, a promis- sory note; and in Fleming, Linn & Co v. Burge, 6 Alabama, 373, it was decided that an instrument in writing by which the defendants acknowleged to be due to the plaintiff by them, a certain sum, for keeping stage horses, was a promissory note, and might be declared on as such. With regard to the legal character of a Certificate of Deposit, there has been some difference of opiuion. In Bank of Orleans v. Merrill. 2 Hill's N. Y. '295, a certificate of deposit, payable to the order of S. B. at six months with interest, was said to be a negotiable promissory note; and in Kilgoi-e v. Bulldey, 14 Con- necticut, 363, 383, a certificate in this form, "I do hereby certify that W. T., & B., have deposited in this bank, the sum of $10,608.75, payable on the first day of December next, to their order, and the return of this certificate," was held to be a negotiable promissory note, the endorser of which incurred all the liabilities of the drawer of a bill of exchange. [And a recent case (1851) in the Supreme Court of the United States, Miller v. Austin,{Y) a certificate, "I hereby certify that H. S. has deposited in this bank, payable twelve months from 1st May, 1839, with 5 per cent, interest till due, $1500 for the use of H. M., and payable only to his order upon the return of this certificate," was held to be a negotiable note. There was a statute in Ohio, from which the case came, enacting that "all promissory notes, drawn for a sum certain, payable to any person or order, negotiable by endorsement." The statute, however, does not seem to have affected this ca.se, and the Court put the matter on gen- eral grounds; declaring that the State courts generally have treated certificates of deposit payable to order as promissory notes, and that the principles of the State courts in coming to those conclusions are fully sustained by text writers 1 However, in Patterson v. Poindexter, 6 Watts & Sergeant, 227, (confirmed in Charnley v. Dulles, 8 Id. 353, 361,) a certificate of deposit in this form, "I hereby certify that C. S T. has deposited in this bank, payable twelve months from 1st May, 1839, with 5 per cent, interest till due, per annum, $3691.63, for the use of R. P. & Co., and payable only to their order, upon the return of this certificate," had been, some years previously, decided to be not a negotiable promissory note, but " a special agreement to pay the deposit to any one who should present the certificate and the depositor's order." In determining be- tween these conflicting decisions, the test perhaps consists in the inquiry, whe- ther the transaction is a deposit, or an immediate debt and engagement to pay. A deposit does not create a present debt, but is in the nature of a bailment, upon which there must be a demand and refusal, or something equivalent to it, before a right of action exists :(2) of course, therefore, an instrument merely acknowledging a deposit, upon whatsoever special terms, cannot be a promissory note ; and the case is one of construction, depending on the question, whether upon the terms of the special contract, the matter continues to deposit, or i^ converted into a loan, or other contract creating a present debt, accompanied with an undertaking to pay. The court, in Kilgore v. Bulkley, and Miller v. Austen, probably took the latter view : in Patterson v. Poindexter, it must have been considered that, notwithstanding the words " till due" and " payable," n) 13 Howard, 228. (2) Downes v. The Phoenix Bank of Charlestown, 6 Hill, 297; Watson v. Phoenix Bank, 8 Metoalf, 217, 221; Johnson a Farmers' Bank, 1 Harrington, 117, 119; see, however, Pott u, Clegg, 16 Meeson & Welsby, 321; and Foley v. Hill, 2 H. of L. Cases, 28. 808 NEGOTIABILITY OF INSTRUMENTS. the transaction continued to be a deposit, though upon special terms, and sub- ject to a particular stipulation as to the manner and time of payment, and accompanied with a collateral engagement to allow interest; and this latter view is supposed to be correct, and in accordance with commercial understand- ing. Patterson v. PomcJexter is, to some extent, sustained by Sihree v. Tripp, 15 Meeson & Welsby, 23. There, an instrument in this form was offered in evidence : Bristol, August 14th, 1843. " Blemorandum. — Mr. Sihree has this day deposited with me £500, on the sale of £10,300, SI. per cent. Spanish, to be returned on demand. James T. Tripp :" and it was objected by the defendant, that it was a promissory note, and required a stamp accordingly. But the Court of Exchequer were unani- mously of opinion, that it was not a promissory note. Pollock, C. B., after the remark above cited, that in order to be a promissory note, it must appear that the parties intended a promissory note, and that the statute of Anne was not designed to prevent other agreements than promissory notes being made in relation to the payment of money, said, "this appears to me to be merely an instrument recording the agreement of the parties in respect of a certain depo- sit of money, the consideration of which is stated in the memorandum itself, and to be rather an agreement than a promissory note." - Parke, B., with whom agreed Alderson, B., said, " This is not a contract to pay money, but a deposit of money, and the identical money is to be returned :" and Hlatt, B., said that it was " quite clear, on the face of the instrument itself, that it is an agreement to return a deposit of money in a particular event. It is, therefore, not a pro- missory note." However, if there be a direct promise to pay a certain sum of money, which is acknowledged in the instrument to have been deposited, there is no doubt it is a promissory note.(l) In determining between a special agreement and a general promise, there are cases in which the use or omission of words of general negotiability, as " order," appears to be entitled to have a controlling influence upon the construction of the contract; from the English cases, it seems that an engagement to "account" to one or order is a promissory note, but an engagement to account only with the party himself is not necessarily so. In Home v. Redfearn, 4 Bingham's N. 0. 433, a letter in this form, "Sir, I have received the sum of £20, wiiich I have borrowed of you, and I have to be accountable for the said sum, with legal interest. I am, &e., P, R.," was decided to be a special agreement, under the stamp act of 55 Geo. 3, c. 184, and not a promissory note; and Bosanquct, J., said, that the fair and reasonable interpretation of the words, " I have to be accountable," is, that the party will give credit in account, and pay the balance, and that that is a special agreement, and not a promissory note ; on the other hand, in Morris v. Lee, Strange, 629, a note whereby the defendant promised to be accountable to the plaintiff or order for £100, value received, was decided to be a promissory note within the statute of Anne; and the court said, " this is for value received, and he makes himself accountable to the order; a fourth or fifth endorsee can settle no account with him, therefore we must take the word accountahle as much as if it had been pay." In one case, the undertaking must have contemplated -a payment ; in the other, it might have been satisfied (1) Southern Loan Co. t. Morris, 2 Barr, 175. See Shenton v. James, 5 Q. B., 199. OVERTON V. TYLEK: ETC. GERARD V. LA COSTE. 309 by an allowance in account. In Woolley v. Sergeant, 3 Halstead, 2(52, an order, which, in the statement of the case, is set out in this form, " Please to credit J. W. or bearer thirty dollars, and I will pay you, &o.," was held not to be negotiable ; because, as the court said, it does not require the drawee to pay money, "but only to give credit on a book account, and it confines this request of credit to W. hinuel/;" from which it might be thought that, in reality, or at least in the opinion of the court, the order was not in favour of bearer. An instrument in this form, "Six months from date, I guaranty to pay J. K. A., or his order, $180 without interest," and signed, was decided to be a promissory note, in Bruce v. WestcoK, 3 Barbour's Supreme Court, 374, 379. For cases in which an endorsed guaranty/, with negotiable words, of the payment of a promissory note, as distinguished from a guaranty of its collection, has been held to be a promissory note., see cases cited below. (1) Another requisite of a promissory note or bill of exchange is, that the liabil- ity to pay be personal and absolute; the instrument must be "payable at all events, and at some time which must certainly come, and if the payment be dependent on any contingency, the bill or note is not negotiable. Accordingly, the following instruments have been held to be not negotiable; an order, pay- able "ninety days after sight or ich-en realized ;" (2) a note payable to a person " when he is 21 years old ;"(3) no day being specified, as in Goes v. Nelson, 1 Burrow 226, and payment being considered as dependant on the fact of his living to majority ; a note payable " when a certain suit is determined pending between S. and M., if said S. should gain the suit;"(4) a note payable to bearer " provided the ship M. arrives at an European port of discharge free from capture and condemnation by the British ;"(5) a bill payable to order of payee whenever the drawee had sold certain carriages to the amount of the order ;(6) and one in this form, "Please pay to J. H., $130 in specie, or its equivalent, as soon as you receive the amount of my acc't of the government, from Capt. W. A. ;"(7) a note payable on demand, with interest, " but no de- mand to be made as long as the interest is paid;"(8) a note in this form given by two partners in a particular transaction to a third, " Due G. C. on settle- ment of canal operations on sec. No. 10, Hocking Canal, $1748, which we promise to pay him or order, on final estimate of said section ;" (9) a bill in which the drawers ordered the defendant to pay to the plaintiff or bearer $400, and take up their note given to the plaintiff and another for that amount, which w:is construed as payable on the contingency of that note being given up by the holder at the time of receiving payment; Cook v. Safterlee, 6 Cowen, 108; and a note in this form, " 1 agree to take of B. M. & Co., a fifty saw gin, to be (1) Ketchell v. Burns, 2i Wendell, 456; Manrow v. Durham, 3 Hill's N. T., 584; S. C, Durham v. Manrow, 2 Comstock, 534; Hunt v. Brown, 5 Hill, 145. See also, Tattle v. Bar- tholomew, 12 Metcalf, 452; Partridge v. Davis, 20 Vermont, 500. (2) Alexander v. Thomas, 16 Adolphus & Ellis N. S., (71 E. C. L.) 335. (3) Kelly v. Hemmingway, 13 Illinois, 604. (4) Shelton v. Bruce, 9 Yerger, 24. (5) Coolidge ». Rugglee, 15 Massachusetts, 387. (6) De Forest v. Frary, 6 Cowen, 151, 155. (7) Henry v. Hazen, 5 Pike, 401. (8) Seacord v. Burling, 5 Denio, 444. (9) Weidler & Carpenter v. Kauffman, 14 Ohio, 455. 310 NEGOTIABILITY OF INSTRUMENTS. ' delivered at my house by the 1st yepteniber next; the said B. M. & Co. war- rant the gin to perform well in every respect, or they will make it do so at their own expense — for which I promise to pay B. M. & Co. or bearer one hundred dollars by 1st of January, 1847;" which certainly involved the contingency of the gin being duly delivered, and perhaps that of its working well ;(1) [So a promise " to pay B. for A. I'200 and to have it endorsed on his note to B., and if I do not procure the endorsemeut within, &o., then to pay him. A., the said $200," held to be no "promissory note" in any legal sense]. ('i) On the other hand, instruments, in the following forms, have been held not to be payable on a contingency, and therefore to be negotiable : where the plaintiff held a prom- issory note of JV. L., and N. L, wrote under it, " L. M., Ksq., (defendant) please pay the above note, and hold against me in our settlement. N. L. ;" and the defendant accepted; which was distinguished from CooJcy. Satterlee, on the ground that here the drawee is to pay a note which is referred to merely to ascertain the amount, and that the returning of the note as a voucher is no more the performance of another act besides the payment of money, than the retaining of the order itself for the same purpose would be ;(3) a note promis- ing to pay S. S. or order a certain sum " by the 20th of May, or when he completes the building according to contract," which was decided to be payable absolutely and on a day certain ;(4) and a note in this form, "For value re- ceived, I promise to pay J. P., or bearer, $570 50, it being for property I pur- chased of him in value at this date, as being payable as soon as can be realized of the above amount for the said property I have this day purchased of said P., which is to be paid in the course of the season now coming ; B. B. ;" which was held to mean that the party promised to pay the sum as soon as the termi- nation of the season, and sooner if the amount could be sooner realized out of the fund ; the undertaking to pay being absolute, and the reference to the sale of the property being only to indicate how soon the payment might be made; and as to the time of payment, whatever " the coming season" might mean, it must expire by mere lapse of time; so that the instrument answered the test of a promissory note, in being payable at all events, and within a certain lim- ited time which must certainly come. (5) In PinkJiam, Executrix v. Maey, 9 Metcalf, 174, it appears to have been taken for granted that a note payable to order " at the termination of the ship 0. M.'s present voyage," was negotiable. In Henschel v. MaJiler, 3 Hill's N. Y. 132, a bill of exchange in this form, " For fr's 8755.60, payable in Paris, on the 31st Dec'ber, 1839. On the 3 1st October of this year, pay for this first of exchange, to the order of ourselves, 8755 frs., 60 cts., payable in Paris the 31st December of this year, &c.," — was objected to on account of the uncertainty of the time of payment; but the Court said that the meaning to be collected from the whole was, that the time of payment was the 31st December, and that " the 31st October of this year" should be rejected as repugnant and absurd ; and JJelson, C. J., said that the great commercial advantages growing out of the general use of negotiable instruments, have induced courts to adopt a most liberal mode of construing (1) Hodges V. Hall, 5 Georgia, 163. See also Drury v. Macanlay, 16 Meeson 4 Welsby, 146. (2) Bunker v. Athearn, 35 Maine, 36t. (3) Leonard v. Mason, 1 Wendell, 622. (4) Stevens v. Blunt, 7 Massachusetts, 240; Goodloe v. Taylor, 3 Hawks, 458. (6) Cota V. Buck, 7 Metcalf, 583. OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 311 them : and this decision was a£Brmed by the Court of Errors, 3 Penio, 428. A note payable by instalments, may be a good promissory note;(l) and if it contain a condition that on default in paying the first instalment, the whole shall become due, it is still a good promissory note, and on default by the maker in paying the first instalment, the maker, or an endorser becomes liable for the whole amount.(2) Where a condition or contingency, is endorsed on the back of the note, it has been held in some of the courts in this country, that the endorsement is not a part of the note, and that though it operates to give notice of the conside- ration, it does not affect the negotiability ;(3) and so. where the memorandum is subjoined to the foot of the note;(4) in others, in accordance with the English decisions, that the contingency becomes a part of the note;(.b) every memorandum annexed to a note of hand, though introduced by a nota bene, being regarded as a constituent part of the contract.(6) Upon the ground, apparently, of the payment being contingent, the circum- stance that the note or bill is made payable out of a particular fund, prevents its being negotiable. (7) A promise to pay "as soon as I am in possession of funds to do so from the estate of B." is not a promissory note;(8) nor is an order to an executor or heirs to pay a certain share or sum of money due to the drawer out of the estate, a bill of exchange; (9) a promise to pay "out of a bond, when it shall be collected on J. D. :"(10) or "out of the net proceeds after paying the costs and expenses of ore to be raised" from a certain bed;(ll) and an order to pay out " of the money received on my account from the Insu- rance Office, when collected ;"(1 '2) is not a note or bill: an order directing a certain sum to be paid out of notes or other demands left in the hands of the drawee to be collected, or other property left to be disposed of, is not a bill of exchange ;(13) nor is an order to pay quarterly rents as they might become due during the year, not merely as being out of a special fund, but as not pay- able necessarily in money ;(14) and orders, in this form, " Messrs. C. and R , please pay J. P. the sum of 100 dollars, on account of my share of rent for Gloucester Fishery, which will be due June lst;"(15) and in this, "when in funds, after reimbursing your advances, &c., please pay to E. S. or order, ten (1) Tucker 1). Randall, 2 Massaohasetis, 283; Heywood ti. Perrin, 10 Pickering, 228; Oridge V. Sherborne, 11 MeesOD & Welaby, 374. (2) Carlon v. Kenealy, 12 Id. 139. (3) Sanders v. Bacon, 8 Johnson, 485; Tappan v. Ely, 15 Wendell, 362. (4) Pool V. MeCrary et al., 1 Kelly, 319. (5) Barnard and others t>. Gushing and others, 4 Metcalf, 230. (6) Shaw «. Methodist Episcopal Society in Lowell, 8 Metcalf, 223, 226. (7) Carlisle v. Dubree, 3 J. J. Marshall, 542; Strader, Ac. v. Batchelor, 7 B. Monroe, 16S; Blevins «. Blovins, 4 Pike, 441. (8) Wiggins v. Vaugbt, Cheves' Law, 91. (9) Mills V. Kuykendall, 2 Blackford, 48 ; Mcrshon v. Withers, 1 Bibb, 603, 605. (10) Stamps V. Graves, 4 Hawks, 102, 112. (11) Worden ti. Dodge, 4 Denio, 169. (12) Hamilton v. Myrick and Willianipon, 3 Pike, 541. (13) Van Vacter v. Flack, 1 Smedes i Marshall, 393 ; Crawford v. Cully, Wright, 451 ; Curie V. Beers, 3 J. J. Marshall, 170, 174. (14) Morton v. Naylor, 1 Hill's N. Y., 583. (15) Rice o. Porter's Adm'rs, 1 Harrisun, 440. 312 NEGOTIABILITY OF INSTRUMENTS. thousand dollars, or as much thereof as maj remain iu your hands after reim- bursing yourself, &o. ;"(1) and this, "when in funds from the sales of pro- duce in your hands, pay," &c. ;(2) and this, "payable ninety days after sight or when realized;'' Alexander v. Thomas, 16 Adolphus & Ellis, N. S. (71 E. C. L.) 335; have been held not to be negotiable bills of exchange, on account of the contingency of being payable out of a particular fund. But a direction, in a bill, to charge the payment to a particular account or fund, will not inter- fere with the negotiableness of the instrument, where it is intended not to pre- vent the liability from being personal to the drawee, but merely to indicate the account to which the transaction is to be carried, or the fund from which the payer is to reimburse himself. Therefore au order to pay a certain sum, "and charge to Bedford E,oad Assessment, &o ;"(3) and an order in this form, " Pay to A. & S., or order $215, and I will credit your note to me for that amount, due on the 25th instant — value received ;"(4) have been held not to be conditional or restricted to a particular fund, but merely as designating the mode of reimbursement or indemnity, and therefore negotiable bills of exchange. In Bank of Kentuchy v. Sanders, et al., 3 Marshall, 184, an order on the pay- master of the U. S. Army by a district pay-master, directing the payment of a certain sum to payee or order, " on account of the subsistence of the army of the U. S. for the year 1814 : Eor this sum I am to be charged and held accountable, as per advice of equal date with this," was held to be a bill of exchange, the fund being mentioned only as directory to the drawee out of what fund he was to reimburse himself: [So in Byram v. Hunter, 36 Maine, 217, where a bill was drawn in favor of A. B. or order $200; "the same being in compliance with a vote of the company."] In Reeside v. Knox, 2 Wharton, 233, however, in the case of an order drawn by a mail-contractor on the Post- master-General, it was decided that every bill on government is in contempla- tion of law drawn on a fund, and that its acceptance is merely, a recognition of the instrument as a transfer of credit, or an assignment of funds in its hands, and that such orders are not negotiable. And this is confirmed by The United States v. The Bank of the United States, 5 Howard's Supreme Court, 382, 397, at least to the extent of deciding that an instrumi nt in the form of a bill of exchange, drawn by one government or nation on another government or nation, cannot be a commercial bill subject to protest, or on which the drawer will be liable to the holder for re-exchange, or damages in lieu of it, in case of protest. In this case, a bill was drawn and signed by the Secretary of the Treasury of the United States, on a minister of the French government, payable to order, for a certain sum, " which includes the sum of , being the amount of the first instalment to be paid to the United States under the convention concluded, &c." The Supreme Court, reviewing their previous opinion in S. C. 2 Id. 711, 734, decided that this was not a bill subject to commercial law and usage, or on which the drawer was responsible for re-exchange. A bill of exchange, said Mr. Justice Catron, in pronouncing the judgment of the Court, must carry on its face its authority to command the money drawn for; so that the holder, or the notary, acting as his agent, may receive the money, and give (1) Smith et al. v. Wood, Saxton, 76, 89. (2) Gille.«pie v. Mather, 10 liarr, 28. (.1) Kelley I'. Mayor, Ac., of Brooklyn, Hill's 4 N. Y , 263. (4) Early i: M'Cart, 2 Dana, 414. OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 313 a discharge on presenting the bill and receiving payment; or if payment is refused, enter a protest, from which follows the incident of damages; but if no demand can be made on the bill standing alone, and it depends on the other papers or documents to give it force and effect, and these must necessarily accompany the bill and be presented with it, it cannot be a simple bill of exchange, that circulates from hand to hand as the representative of current cash — In this case, the mere signature of our Secretary of the Treasury could not be recognised by the French government as conferring authority on the holder to demand payment; the transaction being one of nation with nation, he who demanded payment must have had not only the authority of this nation before he could have approached the French governuieut, but that authority must have been communicated by the head of this government through the proper department carrying on our national intercourse, which was the state department; until the French government was thus otKcially advised, the bill was valueless in the hands of the holder, as against Fr:ince; and, accordingly, it was held to follow, from the character of the drawer and the drawee, and the nature of the fund drawn upon, that this transaction could not be governed by the commercial law. This reasoning has the appearance of being somewhat constrained, for the purpose of avoiding a direct contradiction of the opinion expressed in S. C, 2 Howard, 734; the simple principle laid down in lieeside V. Knox, appears to be well founded in reason and analogy, and to be the con- trolling principle in cases of this kind. It is probably upon the same ground, of the payment being, as to amount, at least, dependent on a contingency, that it has been held that a note is not negotiable unless it be for the payment of a sum certain : a promise to account to A., or bearer, for the proceeds of certain notes; and an acceptance of an order directing payment to one or order of $1000, or what might be due after deducting all advances and expenses, have been di'cided not to be negotiable. (1) In some courts, it appears to be a practice to allow a note payable on a con- tingency, or out of a particular fund, to be declared upon as a promissory note between the parties to it, at least where it contains an admission of "value received," or sets forth on its face such circumstances as constitute a considera- tion ;('2) but in Stamps v. Graves, 4 Hawks, 102, 113, it is decided that a con- ditional promise to pay on a contingency, of itself, raises no presumption of a consideration received. In Connecticut and A'ermont, instruments in the form of promissory notes, but payable in specific articles, or otherwise defective in negotiability, are allowed to be declared on, between the parties, as special- ties ;(3) yet that is only where the instrument contains an admission of "value received. "(4) To be negotiable, another requisite is, that the bill or note be payable in money, and not in eommodities.(5) Moreover, as decided in M' Cormick v. (1) Fiske V. Witt A Tr., 22 Pickerinpr, 83; Cushman v. Haynes & Trs., 20 Id., 1,^2. (2) Odiorne et al. v. Odiorne, 5 New Hiimpshire, 31.5 ; Congregational Society in Troy v, Goddard, 7 Id., 430, 435 ; and see Joliffe v. Higgins, 6 Munlord, 3. (3) Brooke v. Page, Chipman, 340; Dewey v. Washbarn, 12 Vermont, 580; Deneson v. Tyson, 17 Id., 650; Chaplin v. Canada, 8 Connecticut, 286. (4) Edgerton v. Ee'gerton, Id., 6. (5) Peay V. Pickett, 1 Nott A M'Cord, 255; Coyle's Executrix v. Satterwhite's adm'r, 4 Monroe, 124; May i\ Lansdown, 6 J. J. Marsliall, 165; Carleton i. Brooke, 14 New Ilamp- 314 NEGOTIABILITY OF INSTRUMENTS. Trotter, they must be payable in money, and not in bank notes ; and in Ex parte Ime.son, 2 Rose, 225, this was applied in the ease of a note payable in Bank of England notes. It has repeatedly been decided that a bill or note is not negotiable if it be payable in current bank notes ;(1) or "in office notes" of a particular bank ; (2) or in state money of a particular bank ;(3) or in paper medium ;(^i) or in current hills ;[b) or in foreign bills ; [6) or in Canada money (the note being made and payable in New York);(7) or in a sight check on a bank. (8) The cases of Keith v. Jones, 9 Johnson, 120, and Judah v. Harris, 19 Id. 144, in which notes payable "in York State bills or specie," and " in bank notes current in the city of New York," were held to be nego- tiable, went upon the ground that the court might take judicial notice that such bills and notes were considered at the time as equivalent to specie : but those cases stand alone in the law, and are discredited, if not entirely over- ruled, in Thompson v. Sloan, and Little v. Phoenix Bank, just cited below. The case of Swetland v. Oreigh & others, 15 Ohio, 118, which held a note pay- able " in current Ohio Bank notes" to be negotiable, proceeded in part upon the construction of a statute of the state. In some of the Western States, they have refined upon these expressions very acutely. It appears to be con- ceded, that if an instrument be payable in bank notes, it is not a good note or bill of exchange ; but whether it is payable in money, or in bank notes, is a question of construction; and they hold that a note or bill payable in "current money," or "current money of the State," is payable in gold or silver coin, as that is the only money current, by the constitution; (9) and so of "Arkansas money,'' in that state;(10) so of "lawful funds of the United States ;"(11) [or, it is probable, « lawful money" of any State, lawful money being Federal money, i. e., gold and silver;](12) and that the words "currency," and "currency of the State," as a medium of payment, are to be interpreted according to the state of facts, and the popular understanding of the terms, at the time the note is given, of which the courts will judicially take notice, and therefore, if the banks have at the time suspended the payment of specie, and the actual currency is a depreciated circulation, and the note, on its face, obviously has reference shire, 149; Tibbets v. Gerrish, 5 Foster, 48 ; Tindall's Executors v. Johnston, 1 Haywood, 372 ; Hodges v. Clinton, 1 Martin, 70; Bradley et al. v. Morris, 3 Scammon, 182; Gwinn v. Roberts, 3 Pike, 72; Pitman v. Breckenridge & Crawford, 3 Grattan, 127; Reynolds v. Rich- ards, 2 Harris, 206; Bunker v. Athern, 35 Maine, 364; Jeffries v, Hagar, 18 Missouri, 272. (1) Gray v. Donahoe, 3 Watts, 400; Little v. Phenix Bank, 2 Hill's N. Y., 425; S. C, on Error, 7 Id., 359; Kirkpatrick v. McCuUough, 3 Humphreys, 171; (overruling Childress v. Stuart, Peck, 276, and dicta in Deberry v. Darnell, 5 Yerger, 451); Whiteman v. Childress, 6 Humphreys, 303; State v. Corpening, 10 Iredell, 68, 61. (2) Irvine v. Lowry, 14 Peters, 293. (3) Hawkins v. Watkins, 6 Pike, 481. (4) Lange v. Kohne, 1 McCord, 115. (6) Collins V. Lincoln, U Vermont, 2B8. (6) Jones v. Fales, 4 Massachusetts, 245, 252 ; Young v. Adams, 6 Id. 182, 188. (7) Thompson v. Sloan, 23 Wendell, 71. (8) Bank ti. Johnson, 3 Richardson, 42. (9) M'Chord v. Ford, Ac, 3 Monroe, 166; Bainbridge *. Owen, 2 J. J. Marshall, 463, 464; Coekrill v. Kirkpatrick, 9 Missouri, 697 ; Williams v. Moseley, 2 Florida, 304, 331. (10) Wilburn v. Greer, 1 English, 255, 268. (11) Ogden f. Slade, 1 Texas, 13. (12) Cocke V. Kendall, 1 Hempstead, 237. OVEETON V. TYLER: ETC. GERARD V. LA COSTE. 315 to such depreciated circulation, it will not be payable in money;(l) but if this state of facts do not appear, it will be considered that " currency" means the constitutional currency, gold or silver, and a note payable in currency of the State will be deemed to be payable in cash. (2) Some cases have occurred of promissory notes, with an agreement at the bottom, by way of memorandum, that work or materials will be accepted in discharge of the note, if done or given within a certain time : it was held in Tindall's Executors v Johnston, 1 Haywood, 372, and Campbell v. Mvm/orJ, Id. 398, that in such cases, at the time it is made, the instrument is not nego- tiable, and therefore can never become so by any subsequent circumstances; and as it is not negotiable, a consideration must be proved, even between the parties. (3) Moreover, to be negotiable, a bill or note must be for the payment of money on/i/, and not for the payment of money and the performance of some other aots;(4) because, as is said in Boi/d v. Rumsey, &c., 5 J J. Marshall, 42, a contract has a unity in law. And it must not be in the alternative, for the payment of money or commodities, or bank notes. (5) Another requisite of a promissory note, or bill of exchange, is said to be, that it must express a payee. It has been decided, however, in England, that a note in the form, <' Keceived of A. B. £ — , which I promise to pay on de- mand," sufficiently expresses that A. B. is the payee. (6) And there are many forms of indicating the payee, which, though apparently uncertain or unmean- ing, are good as payable to bearer. [A note payable to W. D and M , "Trus- tees of the A. Land Company, or their successors in office, or order," has been held in this country to be a negotiable note;{7) and up to the exact extent of this case the English decisions go; Hex v. Box, 6 Taunton, 325, and Storm V. Stirling, 3 Ellis & Blackburne, (77 E. C. L.) 843. But in Storm v. Slirhmj, just cited, whore A. promised to pay, &c , 'Wo the secretary for the time heinij of the Indian, &o.. Society, and where this form of designating the payee was used in other parts of the engagement, the court held it not negotiable One Storm was secretary when the note was made, and continiled so all the time, and brought the suit, and it was contended that Storm was specifically desig- nated. But the court says, " The use of the words 'for the time heing' in the first instance, the repetition of it afterward, and the whole form and scope of the instrument, satisfy us that the payment was to be made to the individual who, at the time of the instrument falling due, should fill the situation of secretary of the company, and not to the plaintiff, unless he happened to be the secretary at that time." Regarding it, therefore, as " a floating contingent promise," (1) Chambers t>. George, 5 Littell, 335, (where "money" in the note is misprinted for "cur- rency"); Farwell v. Kennett, 7 JVIissonri, 695 ; Dillard v. Evans, 4 Pike, 175. (2) Lampton v. Haggard, 3 Monroe, 149 ; Cockrill v. Kirkpatriok, 9 Missouri, 697, 702 ; Mitchell V. Hewitt, 5 Smedes &, Marshall, 361, 366 ; see Fleming v. Nail, Adm'r, 1 Texas, 246, 249. and Roberts i>. Short, Id. 373. (3) Thompson v. Gaylard, 2 Id., 150. But see Moody v. Leavitt, 2 New Hampshire, 171 ; Odiurne v. Sargent, 6 Id., 401; Sexton v. Wood, 17 Pickering, 110. (4) Austin V. Burns, 16 Barbour, 643; Wallace v. Dyson, 1 Spears, 127; Jamieson v. Farr, 1 Haywood, 182. (5) Ex parte Imeson, 2 Rose. 225. (6 j Green v. Davies, 4 Barnewall & Cresswell, 235, 239 ; Ashby v, Ashby, 3 Moore i Payne, 186. (7) Davis and others v. Gair, 2 Selden, 124. 316 NEGOTIABILITY OF INSTRUMENTS. the court held it as payable to, or to the order of, an uncertain person, and therefore not negotiable. They distinguished Rex v. Box from it, becauss " there the note was payable on demand to A. V. and C. D. hy name, stew- ardesses of a provident society, or their successors in office," and observed, as the court in New York did in its case, that the " description'' did not alter the promise to pay them on demand.] A bill payable to blank or order, is not, while the blank remains, such a legal bill of exchange or order for the payment of money, as to be the subject of an indictment for the forgery of such instru- ments ;(1) but a blank for the name of the payee is an authority to any hona fide holder to fill the blank with his own name, and when so filled, the instru- ment will be deemed payable to him ah initio (2) A bill payable to a fictitious payee or order, and endorsed in his name by concert between the drawer and acceptor, may be treated by a hona fide holder as payable to bearer, in a suit against the drawer or acceptor; (3) and a note made payable to the order of a fictitious payee, and negotiated by the maker, is a note payable to bearer ;(-!) and a payee is deemed fictitious, when the name of some person is used who has not any interest, and is not intended to become a party, in the transaction, whether a person of such a name is known to exist or not, (5) [A bank cheek, payable to the order of bills payable, is mid, in one case, to be payable to bearer.] (6) A note " payable to the order of the person who should thereafter endorse it," or " to the order of the endorser's name," may be sued by any endorsee or any hona fide holder. (7) A note payable '< to my own order" is clearly negotiable ;(8) and when endorsed, may be declared upon as payable to bearer. (9) It has been held, however, that where a writing is complete, and yet expresses no payee, it is not a good promissory note or bill of exchange ; and, accordingly, a writing in these words, "Boston, 15 May, 1810 ; good for $126 on demand," and signed, is not a promissory note; and that an endorse- ment, " Mr. 0., pay on within $750, S W," is not a negotiable bill ; or, at least, that possession of such instruments is not sufficient title to sue upon them;(10) and in Prewitt v. Chapman, 6 Alabama, 86, 89, upon a bill of exchange, otherwise formal, which, however, expressed no payee, but merely said, "Pay this, my first and only exchange, &c," it was held that the person for whose benefit the bill was drawn, and from whom the oonsidenition moved, could, on proof, recover on the bill, but that it could not be sued by bearer. (11) (1) Rex V. Richards, and Rex v, Randall, Russell & Ryan, 193, 195. (2) Cruchley v. Claranoe, 2 Maule & Selwyn, 90 ; United States i'. White, 2 Hiire N. Y., 69, 61 ; Bank of Kentucky i>. Garey, &e., 6 B. Monroe, 626; Close v. Fields, 2 Texas, 222; see Mitchell V. Culver, 1 Cowen, 336 and 337, note. (3) Gibson V. Minet, 1 H. Blaokstone, 669, (diss. Eyre, C. J., and Thurlow, Ch.) (4) Plets V. Johnson, 3 Hill's N. Y., 113, 115; Coggill v. The American Exchange Bank, 1 Comstock, 113, 117; and see Hortsman v. Henshaw et al., 11 Howard's S. Ct., 177. (5) Foster v. Shattuok et al., 2 New Hampshire, 446, (where the principle of Gibson v. Minet, seems to be doubted.) (6) Dictum in Willots v. The Phoenix Bank, 2 Duer, 131. (7) U. S. u. White, 2 Hill's N. Y., 59. (8) Miller v. Weeks, 22 Penna. State, 92. (9) Masters t'. Baretts, 8 Manning, Granger & Scott, [65 E. C. L.,] 433. (10) Brown v. Gilman et al., 13 Massachusetts, 158; Douglass v. Wilkenson, 6 Wendell, 637, 644. (11) See Mayo v. Chenoweth, Breese, 155. OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 817 [A note made payable to the " estate of M. L., deceased," would seem not to be a negotiable note.](l) A bill or note payable to the order of A., is the same as if payable to A. or order, and may be sued by A. without being endorsed by him j(2) and a note payable to A. or bearer, is a direct promise to pay any bearer, and may be sued upon by any hoiia fide holder without endorsement.(B) [It would seem to be a requisite of a bill that it should be addressed to a drawee]. (4) Besides these requisites, it is conclusively settled, that a bill or note is not negotiable, unless it contain words of negotiability, such as, "or order," or "bearer," or some word of like effect ;(5) except where made so by a local statute. (6) Without those words, a note, otherwise sufficient, will be a good promissory note between the parties ; but in respect to its transfer, it stands on the footing of an ordinary chose in action. It may be declared on as a prom- issory note within the statute of Anne; (7) and so of a bill of exchange with- out negotiable words ;(8) such a note, also, is entitled to days of grace ;(9) and it has been held to be within a penal statute against the forgerj' of prom- issory notes;(10) but if a note or bill, without such words, be transferred by endorsement, the endorsee cannot sue the maker in his own name;(ll) and the endorsee for a valuable consideration does not hold the note discharged of equi- ties and set-oiFs.fl'2) As to the liability incurred by an endorsement by the payee, of a note not containing the words, <' or order," or " or bearer," or, for other cause, not nego- tiable, there is some conflict in the decisions. The cases in South Carolina proceed upon what is believed to be the true principle, that no liability is incurred upon a simple endorsement by the payee of an instrument without negotiable words ;(13) and in Tennessee, it has been decided, that the endorser of a note not negotiable by reason of being payable in bank-notes, incurs no (1) Brinkerhoff v. Starkins, 11 Barbour, 248. (2) HuIiDg V. Hugg, 1 Watts &, Sergeant, 418, 420. (.S) BuUard v. Bell, I Masoo, 243, 252 ; Matthews v. Hall, 1 Vermont, 317 ; Hutebings v. Low, 1 Green, 246; Tillman et al. v. Allies, 5 Smedes & Marsball, 3T3, 378. (4) See Peto v. Reynolds, 9 E-tcbeqiier, 408. (5) Backus v. Danforth, 10 Connecticut, 298; Parker v. Riddle, 11 Ohio, 102 ; Busb v. Peckard, 3 Harrington, 385, 387 ; Brougbton v. Badgett, 1 Kelly, 75, 77 ; Reed v. Murpby, Id., 236. (6) Whiteman v. Childress, 6 Humphreys, 303, 307. (7) Downing o. Backenptoes, 3 Caines, 137; Goshen Turnpike Co. v. Hurtin, 9 Johnson, 217; Noland v. Ringgold, 3 Harris & Johnson, 216, 218. (8) Kendall v. Galvin, 15 Maine, 131. (9) Smith V. Kendall, 6 Term, 123 ; Duncan v. Maryland Savings Institution, 10 Gill k Johnson, 300, 310 ; Contra, Backus v. Danforth. (10) The King v. Box, 6 Taunton, 325. (11) Gerard v. La Coste ; Barriere v. Nairac, 2 Dallas, 249 ; Noland v. Ringgold, 3 Harris & Johnson, 216; Matlack «. Hendrickson, 1 Green, 263; Fernon v. Farmer's Adm'r, 3 Harring- ton, 32; Pratt A Moore v. Thomas, 2 Hill's So. Car., 654; Reed v. Murphy, 1 Kelly, 236. (12) Sanborn v. Little, 3 New Hampshire, 539; Wiggin v. Damrell, 4 Id., 69 ; Dyer v. Homer, 22 Pickering, 253. (13) Wilson V. Mullen, 3 M'Cord, 236 ; Benton -v. Gibson, 1 Hill's So. Car., 66, 58 ; Pratt & Moore V. Thomas, 2 Id., 654, 656; see also, Carleton v. Brooks, 14 New Hampshire, 119. 318 NEGOTIABILITY OF INSTRUMENTS. liability except by express agreement, or by being guilty of fraud, and that then the liability is not upon the endorsement.(l) Elsewhere, the subject has been strangely confused. In Connecticut, the general rule is laid down, that the endorsement, by the payee or by a stranger, of a promissory note not nego- tiable, j^n'ma facie implies a warranty by the endorser, that the maker shall be of ability to pay it when it comes to maturity, and that it is collectible by the use of due diligence.(2) In Seymour v. Van Slyck, 8 Wendell, 404, 421, the Court, per Sutherland, J., was of opinion, that au endorsement by the payee, of a note not containing the words " or order, or bearer," was equivalent to the making of a new note, being an absolute guaranty of payment, or a direct and positive undertaking by the endorser that the note shall be paid to the endor- see ; and that the endorser is not entitled to the usual privilege of an endorser of negotiable paper, as he stands in the relation of a principal and not a surety, to the endorsee, and has no right to insist upon a previous demand of the maker, and notice of non-payment. In an Ohio case(3) there was much diversity of opinion among the judges as to the liability created by an endorsement by the payee of a note without the words " or order,'' or " bearer :" of the four judges, one thought that it might be declared on as an original promissory note; a majority, however, held it to be collateral, and subject, in some degree, to the usages of mercantile law, as applied to the endorsement of negotiable paper. In Vermont, the endorsement of a non-negotiable note is followed by all the consequences of the endorsement of a negotiable note (4) There is a dictum also, in Dean v. Hall, 17 Wendell, 214, 221, by Cowen J., grounded on Chitty on Bills, 218, 219, that the endorsement of a note without words of negotia- bility is fully equivalent to the drawing of a new bill : and in Pennsylvania, the same thing has been decided. In Leidy v. Tammany, 9 Watts, 853, indeed, it was said by Kennedy, J., that the eodorsement of a note without negotiable words, might be treated, either as the making of a new note, or the drawing of a new bill : a singular suggestion, [and since properly exploded in that state,] (5) inasmuch as no two contracts can be more unlike, than the lia- bility of a maker, and of an endorser, one being absolute and the other contin- gent ; and if it is one, it cannot be the other.(6) In Patterson v. Poindexter, 6 Watts & Sergeant, 227, 234, it was said by the Chief Justice, that the endor- ser of a note without negotiable words, was responsible on the contract, by rea- son that the endorsement is a new drawing : and in Brenzer v. Wiyhtman, 7 Id. 264, it is decided that a note made without the words " or order," or " bearer'" is not, as originally made, a negotiable note ; but that the payee, by endorsing it payable to order, makes it negotiable ; and after that, it becomes, as between the endorser and the holder, an inland bill of exchange, in which the endorser stands in the light of a new drawer of a bill payable to the order of the endorsee ; and the holder, by taking it in this character, takes it subject to all the rules that regulate the relation between endorser and endorsee in nego- (1) WhUeman ». Childress, 6 Humphreys, 303. (2) Prentiss v. Danielson, 6 Connecticut, 176; Perkins v. Catlin, 11 Id., 213; Castle v. Candee, 16 Id., 224, 234. (3) Parker v. Riddle, 11 Ohio, 102. (4) Aldis et al. f. Johnson, 1 Vermont, 136. (») Paterson v. Todd A Lemon, 18 Penna. State, 432. (6) See Gwinncll .;. Herbert, 5 A & B., 436. OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 319 tiable instruments. Of course, it cannot be meant by this, that by the endorse- ment, the note becomes negotiable as against the maker : but this decision, by requiring legal demand and notice, seems of necessity to imply that such a note is a perfect negotiable instrument, as well against the maker as the endorser; for unless the maker had engaged to pay any endorsee, and upon endorsement had become a principal debtor to the endorsee, no reason can be given why demand and notice should be necessary, and the strict requirement of them would be in derogation of justice. If it be said that such an endorsement is a non-accepted bill drawn upon the maker, which requires presentment foracoept- ance, the answer would be, that the maker having given one promissory note, the legal title to which remains in the payee, could not be expected to accept another bill of exchange upon the same consideration, and therefore the endor- ser is in the situation of one drawing without funds, and not entitled to notice. As against the maker, the endorsement of a non-negotiable note is certainly merely an assignment in equity of the beneficial interest in the note, or an authority to receive the proceeds to the endorsee's use, and to employ the endor- ser's name for the purpose: the endorsee has no legal right of action against the maker, and therefore can have no legal right of demand : he could not make a demand in his own right, or have the note protested in his own name, but must do both in the name and as the agent of the endorser; and how can legal notice be required between those who stand in the relation, not of endorser and endorsee, but of principal and agent, or trustee and cestui que trust ? Can a principal contract be negotiable for the purpose of giving to the dependent and accessory contract of endorsement, all the qualities of an endorsement of a negotiable instrument, and yet not be negotiable in itself? How is it, that the original note can act upon an endorsement so as to transform an equitable assignment into a negotiable instrument, and yet that this negotiable endorse- ment, when it comes to act upon the original note, finds it wanting the very quality which it is continually deriving from it? The very fine distinction, apparently intended to be suggested in Patterson v. Poindexter, 6 Watts & Ser- geant, 227, 234, 235, between a "contingent guaranty of payment" and "a transfer of the title," does not suggest what quality it is, that distinguishes, as regards assignment or transfer, "commercial paper" from ordinary choses in action on the one hand, and negotiable instruments on the other, nor what reason or authority exists for construing, in the oa.se of one particular kind of non- negotiable instruments, that which would otherwise be a mere equitable assign- ment without liability, into a guaranty, and a guaranty affected by that peculiar contingency which is otherwise applicable only to the endorsement of negotia- ble instruments. With regard to the English authorities cited in Leidy v. Tam- many, and in Chitty on Bills, there is none in which it appears that the instru- ment, in regard to which it has been said that endorsement is equivalent to the drawing of anew bill, was without the words "or order," or, "or bearer," unless it may be Hill et al. v. Lewis, cited from 1 Salkeld, 132. A dictum in that case seems, indeed, to have been the origin of the whole doctrine which is here opposed; and an examination of that case, as reported by Salkeld, may per- haps show that that dictum has been misunderstood, and the true bearing and authority of the case misapprehended. (1.) "The declaration in Hill et al. v. Lewis, 1 Salk. 132, contained counts against the endorser on the bills, and on & mutiiatus, •i.'aiL on an indebitat-us 320 NEGOTIABILITY OF INSTRUMENTS. aasnmpsit for money laid out for the use of the defendant. After a finding by the jury for the plaintiff, the latter prayed to take the verdict upon the indebi- tatus assumpsit, and -because the person to whom the note was given by the defendant, " had sworn that he received the benefit of, and had been satisfied with the bill he took of the plaintiff, by which the defendant was discharged against" the deliveree, the verdict was taken on the indebitatus count for money laid down for the defendant's use : and this agrees with the statement in the report of the same case in Skinner, 410, and Holt, 116, that the person to whom the note was endorsed, paid "on the account," or "by the order, and on the account" of the endorser. The recovery, therefore, was not on the endorsement, but upon the payment to the endorser's use. Not only, there- fore, is the case no authority for the position for which it has so often been cited, but it is obvious that the counsel of both parties were of opinion, that a verdict could not have been sustained upon the instrument itself, the plaintiff's anticipating the objection of the want of 1ihe words " or order," before it was made, and the defendant's actually making it, but after it was too late. (2.) With regard to the dictum of Lord Holt, that if a note be made payable to one without the words " or to his order," an endorsement of it, renders the endorser, but not the drawer, liable to the endorsee, it must be observed, that according to Skinner, and Cases temp. Holt, the dictum of the Chief Justice was that, though a note payable to one or bearer, be not endorsable (to render the maker liable to an endorsee), yet that if it is endorsed, the endorser shall be charged; and the remark so qualified, agrees precisely with what had been recently determined in Hodges v. Steward, 1 Salk. 1"25, and afterwards in Nicholson V. Sedgwick, 1 Lord Raymond, 180 (and see Bank of Eiighmd v. Kcwman, Id. 442), and was the prevailing doctrine before the statut;e of Anne, and the case of Grant v. Vaughan, 3 Burrow, 1516; but that doctrine did not put notes payable to hearer, on a footing with notes payable to one person only ; and it apparently admitted such notes to be negotiable in all respects except that the maker of them must be sued in the name of the original payee, which was a restriction imposed for the prevention of fraud. This view of the dictum in Hill et al. v. Lewis is also taken in Stoney v. Beauhien, 2 McMullan, 'oVi, 322; and in Hall v. Newcomb, 7 Hill, 416, 421. (3.) The case of Huc/cmanee v. Keclcwith, Comb. 176, renders it improbable that Lord Holt would, in Hill et al. v. Lewis, confidently assert what, but two years before, he would not admit, and shows that his opinion inclined against the liability of the endorser of a note containing no negotiable words whatever. That case is as follows. " A bill of exchange, — is drawn payable to J. S. (not saying, or order), J. S. assigns this bill by endorsement and the action is brought against J. S. Holt, Ch. J. If this be a bill, which is assignable, then clearly the action lieth; here the question is, whether this will amount to a new bill to charge the endorser? I agree, if it were payable to J. S., or order, there it is assignable, and you may have your action against the endorser, or resort to the first drawer." And after some conversation between Holt and Dolben on another point, the case " adjournatur." There is one recent English case, which may be taken notice of, that of Plimley v. Westley, 2 Bing. N. C. 249. There, the defendant had endorsed and given to the plaintiff, on account of a debt for goods sold and delivered, a note made by A., payable to B. without the words " or order," and endorsed OVERTON V. TYLER: ETC. GERARD V. LA COSTE. 821 by B. and C, from the latter of whom the defendant had received it for a val- uable consideration ; the note was presented several days after it was due, and was not paid, and no notice was given to the endorser : in assumpsit on the note, with a count for goods sold and delivered, the question was, whether the defendant was liable on the note, or was liable on the consideration, or was discharged altogether ; and Tindal, G. J., said, that he was not liable on the note, but that he was liable for the original consideration, and that as the note was without negotiable words, the holder could not sue the endorser, nor the endorser, the maker, and therefore that no prejudice could arise from the neglect to give notice : and al- though he remarked that if there had been a new stamp, the endorsement might have operated as the making of a new note, yet this was a passing admission grounded on Hill v. Lewis, which had just been cited from ii^alkeld by the counsel ; and the principle decided in this case, that in regard to such a note, an endorsement is not a dependent and accessory contract, seems necessarily to deprive it of the liabilities of an endorsement of a negotiable instrument. The true statement of the law upon this point is believed to be, that the en- dorsement by the payee of a note without negotiable words, does not render the endorser liable upon the instrument, as the maker of a new note or the drawer of a new bill; that the question whether any, and what, liability is incurred by the delivery of a note so endorsed, will depend upon the intention of the parties and the circumstances of the transaction, which may make the en- dorsement a guaranty of the maker's solvency, or a guaranty of punctual pay- ment, or an engagement for anything else; but prima facie such endorsement and delivery is but a transfer of the beneficial interest in the note, without re- course in regard to anything but the genuineness of the instrument, and that only where there has been an absolute transfer for a valuable consideration. [Indeed the distinctions in the earlier Pennsylvania cases would seem to be brushed away of later times in Pennsylvania, by Paterson v. Todd & Lemon, 1 8 ]\'nna. State, 430, and Birclehack v. Wilkins, 22 id. 26, in the former of which Leidy v. Tamany in much of its doctrine was discredited, as being dicta, and in the last of which a note not payable to " order" or " bearer." and so not negotiable on its face, was held not to have been made negotiable in any way whatever by the blank endorsement of the payee, but to be open to all equities that the endorser had against the original transferee.] See Gillespiev. Mather, 10 Barr, 28, 31, also Leavitt v. Putnam, 3 Comstock, which was the ca.se of an endorsement of an overdue draft by an endorsee, to whom person- ally, and not to his order, the endorsement had been made. [A. note once negiitiable does not cease to be negotiable by being over-due; and an endorse- ment of it when it is so over-due, is equivalent to the drawing of a new bill on the maker of the note, payable at sight. There are some cases (as Jordan v. Jlumt, 2 Jones, 269,) in which the erroneous idea that endorsement in such a case make a raeto »io/e, is put forth; but the true law on the subject is ex- plained and stated, as I have above given, in Paterson v. Todd & Lenfion, 22 Penna. State, 430.] The effect of an endorsement, by a third person, not the payee, of a negotia- ble note, appears also [according to most decisions, though not, perhaps, in Maine,(l) and perhaps one or two other States], to depend upon the intention (1) [See Lowell v. Q-age, 38 Maine, 35, where it was held that a person, not the payee, who writes hi.'! name without date on the back of a promissory note, is presumed to have done it VOL. I. — 21 322 NEGOTIABILITY OF INSTRUMENTS. of the parties, to be ascertained by parol evidence ; and according to the time when the endorsement is made, and the acts and declarations of the parties, and other circumstances, it will be construed either as an original promise, or an endorsement, or a guaranty of the maker's solvency : but the decisions on this point are unsettled and perplexed. (1) [Where a person, not a party to a negotiable note, endorses it before its de- livery to the payee, and with the intention of affording additional security to him, he must, it would seem, be regarded as a guarantor to such payee, or at least he cannot be regarded as a second or later endorsee. " How is it possible," says Caton J., with force, in Klein v. Curcier, 14 Illinois, 240, " that the party who puts his name on the back of a note in the hands of a payee, and for his benefit and security, only designed to assume the responsibility of second en- dorser, that his liability was not designed to be but after the party who was induced to part with his money or property, and to accept the note by reason of that very name, I cannot understand." But, says the same able judge, "if, in truth, the name of the third party is put on the back of the note, not with the intention of affording additional security to the payee, but to give it cur- rency for his benefit — to enable him to negotiate it, then indeed he assumes but the liability of a second endorser." If these views of the t-upreme Court of Illinois are correct, — and if, as a rule tending to uniformity, it would not be better to consider a person who simply puts his name on the back of a note as an "endorser" of it;(2) that is to say, as a person who has the rights of an endorser as to the matter of presentment, notice, &o., — then the Supreme Court of Illinois seems reasonably to consider that the object and intention of the party in writing his name across the back of the note, is to be inquired into, and that he is to be considered as guarantor, or endorser, as it was meant that he should be considered either as one or the other.] when the note was made, and is responsible as an original promisor, though over bis name may be the words "without demand or notice."~\ (1) See Dean «. Hall, 17 VFondell, 214; Oakley v. Boorman, 21 Id., 688; Seabury J. Hungerford, 2 Hill's N. Y., SO; Hall v. Newoomb, 3 Id., 233; S. C, on error, 7 Id., 416; Ellis v. Brown, 6 Barbour's S. Ct., 283; Spies v. Gilmore, 1 Comstock, 322; Griswold v. Slocum, 10 Barbour, 404; Wylie v. Lewis, 7 Connecticut, 301; Perkins v. Catlin, 11 Id. 213; Laflin v. Pomeroy, 11 Id. 440; Austin v. Boyd, 24 Pickering, 64; Bichardsou v. Lincoln, 5 Metcalf, 201, 203 ; Union Bank of "Weymouth & Braintree v. "Willis, S Id., 604; Benthall v. Judkins and others, 13 Id., 266; Colburn u. Averill, 30 Maine, 310, 318; Irish v. Cutter, 31 Id., 636; Malbon v. Southard, 36 Id., 147; Sandford v. Norton, 14 Vermont, 22S; Sylvester, Ex'r, v. Downer, 20 Id., 366; Leech v. Hill, 4 "Watts, 448; Taylor v. M'Cune, 1 Jones, 461 ; Amsbaugh v. Gearhart. Id., 482 ; Prosser a. Luqueer, 4 Hill, 422 ; Jordan v. Hurst: Campbell v. Knapp, 3 Harris, 27, 30; Ryners v. Showers, 11 Id., 414; Taylor v. MoKam, 2 Jones, 460; Sullivan v. Violett A Dempsey, 6 Gill, 181; Hoffman v. Eizer, 9 Maryland, 284; Stoney v. Beaubien, 2 MoMullan, 313; Tuten v. Eyan, 1 Speers, 240; Garrett V. Butler, 2 Strobhart, 19.3, 196 ; Devore v. Mundy, 4 Id., 16 ; Nesbit v. Bradford, 6 Alabama, 747, 749 ; Thomas et al. v. Jennings et al., 6 Smedes & Marshall, 627 ; Fitzbugh et al. v. Love's lix'or, 6 Call, 5; "Watson v. Hurt, 6 Grattan, 633; Champion A Lathrop v. Griffith, 13 Ohio, 228; Robinson v. Abell et al., 17 Id., 36 ; Fear v. Dunlap, 1 Iowa, 331 ; Powells i>. Thomas 7 Mi.-souri, 440 ; Co.x v. Adams, 2 Kelly, 158; Collins v. Everett, 3 Id., 266. (2) There would seem to be no reason why a party not the payee, who endorses a negotiable note before it is delivered to the payee, .should not be considered ihe frst endorser, rather than the xi'cniid one, which the Supreme Court of Illinois seems to cons'.d'-r he must be, if he is not a juuraiilijr ol the maker. OVEETON V. TYLER: ETC. GEEAED V. LA COSTE. 823 II. Whether any other instruments than promissory notes and bills of ex- change are capable of being negotiable. [Bank checks, though very much in form bills of exchange, are not so to all intents. They have no days of grace (unless payable at or after date), when they are strictly bills of exchange. (I) Still they are negotiable in the fullest sense.] An instrument under seal, though in the form of a negoti;ible promissory note, is not negotiable ;(2) the endorser of such an instrument is not liable upon his endorsement ; (3) nor can the assignee of such an instrument sue the obligor in his own name j(4) and he takes it subject to the equities between the original parties. (5) By statutes, in some of the States, this rule is altered. In North Caro- lina, (6) bonds, bills, and notes with or without seal, have from an early period, been negotiable. In Georgia, under a statute, all sealed and unsealed instruments for a definite sum of money or for specific articles, payable to order, assigns, or bearer, are negotiable by endorsement. (7) In Ohio, (8) sealed instruments pay- able to one, or order or bearer, and in Alabama, (9) such as are payable to one or bearer are negotiable by endorsement, but not without endorsement, even though payable to bearer ; and the Ohio statute rendering bonds and notes drawn for any sum or sums of money certain, negotiable by endorsement, has been decided to apply to notes payable in current bank notes. (10) In Kentucky, Missouri, Illinois, and Arkansas, bonds, bills, and notes for money or propt-rty, but not for personal services, or work, are assignable at law. (11) A bill of lading is sometimes spoken of as quasi negotiable. An endorse- ment and delivery of it, vest the title to the goods while in transitu in the en- dorsee ; but the instrument is not negotiable, and suit cannot be brought upon it in the name of the endorsee. (12) [As to what are called coupon bonds and such like instruments; see 1 Smith's Leading Cases, 5th ed. 605 ; also particularly, Morris Canal v. Fisher, 1 Stock- ton, N. J. 700.] Letters of credit and commercial guaranties are not negotiable. (13) It is a (1) Eowen v. Newell, 4 Selden, 190, overruling S. C, 5 Sandford, 326; and denying in the matter of Brown, 2 Story, 502; and see particularly Bradley ». Delaplaine, 5 Harrington, 305. (2) Foster t). Floyd, 4 MoCord, 159. (3) Frevall v. Fitch, 5 Wharton, 325, 331 ; Patterson v. Poindexter, 6 Watts A Sergeant, 227, 23 1; Force v. Craig, 2 Halsted, 272, 275 ; Parker v. Kennedy, 1 Bay, 398 ; Parks v. Duke, 2 McCord, 381 ; Pratt & Moore v. Thomas, 2 Hill's So. Car., 664, in which Bay v. Freazer, 1 Bay, 66, is declared to have been overruled; Tucker v. English, 2 Speers, 673; Lewis V. Wilson, 5 Blackford, 370. (4) Clark v. Farmer's Manufacturing Co., 15 Wendell, 266; Sayre ti. Lucas, 2 Stewart, 259. (5) Hopkins ii. The Railroad Company, 3 Watts & Sergeant, 410. (6) Act of 1786 ; Rev. St. of 1836-7, vol. 1, p. 94. (7) Broughton v. Badgett, 1 Kelly, 75 ; Reed v. Murphy, Id., 236. (8) Avery v. Latimer A Fell, 14 Ohio, 642. (9) Carew & Coates v. Northrup, 5 Alabama, 367. (10) Swetland «. Creigh & others, 15 Ohio, 118, (11) Marcum et al. v, Hereford, 8 Dana, 1; Bothick's Adm'rs v. Purdy, 3 Missouri, 82 ; Beatty v. Anderson, 5 Id., 447; Jeffers v. Oliver, Id., 433; Prather v. McEvoy, 8 Id., 661 ; Hawkins v. Watkins, 5 Pike, 481; Buckner v. Greedwood, 1 English, 201, 207; Sappington v. PuUiam, 3 Scammon, 385 ; Buckmaster v. Eddy, Breese, 300. (12) Thompson v. Dominy, 14 Meeson & Welsby, 403. (IS) Bi'ikhead v. Brown, 5 Hill's N. Y , 635, 646. 824 NEGOTIABILITY OF INSTRUMENTS. different question, whether a general guaranty to any one who shall give credit to a particular person, does not become an available contract in favour of any one who on the faith of it gives credit according to its tenor. (1) A guaranty, endorsed or underwritten, on a negotiable promissory note, is not negotiable, and cannot be sued on by a subsequent holder in his own name;(2) though it may operate as an endorsement of the note. (3) In New York, attempts have been made to distinguish between an independent guaranty and a guaranty endorsed on a note; and to treat the latter according to circum- stances, as an endorsement, or a new note, or an endorsement with a waiver of demand and notice; but these distinctions have tended only to confusion and di.scord;(4) but in all the cases it seems to be agreed that as a guaranty, it is not negotiable. (5) A power of attorney to confess judgment, attached to a note, was thought in Osborn v. Hawley, 19 Ohio, 130, contrary to Overton v. Tyler, not to interfere with its negotiability ; but the power itself would not become negotiable. [An assignment of a promissory note, on its back transfers to the holder the rights of the assignor. It is not negotiable, i. e. the assignor is responsible for nothing more than the genuineness of this claim.] (6) Upon the whole, the opinion expressed in Birchhead v. Brown, 5 Hill's N. Y., 685, 646, that in this country, no instruments are negotiable but regular promissory notes and bills of exchange, appears to be entirely correct. [For a consideration of the question how far negotiable instruments pass by delivery merely, see 1 Smith's Leading Cases, 5th ed. 597-610; and see especially, Morris Canal v. Fisher, 1 Stockton, N. J., 700.] (1) See Russell et al. v. Wiggin et al., 2 Story, 214; Carnegie and another u. Morrison and another, 2 Metoalf, 381. (2) Lamourieux v. Hewit, 6 Wendell, 307; Hall v. Farmer, 5 Denio, 484; True v. Fuller, 21 Pickering, 140; M'Doal v. Teomans, 8 Watts, 361 ; Sneveley v. Ekel, 1 Watts k Sergeant, 203. (3) Myrick ». Hasey, 27 Maine, 9; see, however, Tuttle v. Bartholomew, 12 Metoalf, 452. (4) Watson's Executors v. McLaren, 19 Wendell, 668; S. C, on error, 26 Id., 426 ; Luqueer V. Prosser, 1 Hill's N. Y., 266 ; S. C, on error, 4 Id., 420 ; Miller v. Gaston, 2 Id., 189. (5) And see Barber v. Ketchum, 7 Hill, 444, 449; Irish v. Cutter, 31 Maine, 536. (6) Lyons v. Divelbis, 22 Fenna. State, 185. SWIFT V. TYSON. 825 NEaOTIATION OF BILLS AND NOTES. SWIFT V. TYSON. In the Supreme Court of the United States. JANUARY TERM, 1842, [reported, 16 PETERS, 1-24.] The holder of a negotiable instrument, who has taken it bona fide, for a valuable consideration in the ordinary course of business, when it was not over-due, and without notice of facts which impeach its validity as between antecedent parties, has a title unaffected by those facts, and may recover on the instrument, although it may be without any legal validity as between the antecedent parties. A pre-existing debt may constitute a valuable consideration within the meaning of the foregoing rule. This cause came from the Circuit Court of the southern district of New York, upon a certificate of division of the judges of that Court. The action was brought by the plaintiff, Swift, as endorsee, against the defendant, Tyson, as acceptor, upon a bill of exchange dated at Portland, Maine, May 1st, 1836, for $1540, j^^j payable six months after date and grace, drawn by one Nathaniel Norton and one Jarius S. Keith upon and accepted by Tyson, at the city of New York, in favour of the order of Nathaniel Norton, and by Norton endorsed to the plaintiflF. The bill was dishonoured at maturity. At the trial the acceptance and endorsement of the bill were admitted, and the plaintiff there rested his case. The defendant then introduced in evidence the answer of Swift to a bill of discovery, by which it appeared that Swift took the bill before it became due, in payment of a promissory note due to him by Norton and Keith ; that he understood that the bill was accepted in part payment of some lands sold by Nor- ton to a company in New York ; that Swift was a bonar fide holder of the bill, not having any notice of anything in the sale or title to the lands, or otherwise, impeaching the transaction, and with the full belief that the bill was justly due. The particular circumstances were fully set forth in the answer in the record. The defendant then offered to prove, that the bill was accepted by the defendant as part consideration for the purchase of certain lands in the state of Maine, which Norton 326 NEGOTIATION OF BILLS AND NOTES. and Keith represented themselves to be the owners of, and also repre- sented to be of great value, and contracted to convey a good title thereto; and that the representations were in every respect fraudulent and false, and Norton and Keith had no title to the lands, and that the same were of little or no value. The plaintiff objected to the admission of such testimony, or of any testimony, as against him, impeaching or showing a failure of the consideration, on which the bill was accepted, under the facts admitted by the defendant, and those proved by him, by reading the answer of the plaintiff to the bill of discovery. The judges of the Circuit Court thereupon divided in opinion upon the fol- lowing point or question of law: Whether, under the facts last men- tioned, the defendant was entitled to the same defence to the action, as if the suit was between the original parties to the bill, that is to say, Norton, or Norton and Keith, and the defendant ; and whether the evidence so offered was admissible as against the plaintiff in the action. And this was the question certified for its decision to the Supreme Court whose opinion was now delivered by Stoet, J. There is no doubt, that a bona fide holder of a negotiable instrument for a valuable consideration, without any notice of facts, which impeach its validity as between the antecedent parties, if he takes it under an endorsement made before the same becomes due, holds the title unaf- fected by these facts, and may recover thereon, although as between the antecedent parties the transaction may be without any legal validity. This is a doctrine so long and so well established, and so essential to the security of negotiable paper, that it is laid up among the funda- mentals of the law, and requires no authority or reasoning to be now brought in its support. As little doubt is there, that the holder of any negotiable paper, before it is due, is not bound to prove that he is a bona fide holder for a valuable consideration, without notice; for the law will presume that, in the absence of all rebutting proofs, and therefore it is incumbent upon the defendant to establish by way of defence satisfac- tory proofs of the contrary, and thus to overcome the prima facie title of the plaintiff. In the present case, the plaintiff is a bona fide holder without notice, for what the law deems a good and valid consideration, that is, for a pre-existing debt; and the only real question in the cause is, whether, under the circumstances of the present case, such a pre-existing debt constitutes a valuable consideration in the sense of the general rule applicable to negotiable instruments. We say, under the circumstances of the present case, for the acceptance having been made in New York, SWIFT V. TYSON. 327 the argument on behalf of the defendant is, that the contract is to be treated as a New York contract, and therefore to be governed by the laws of New York, as expounded by its courts, as well upon general principles, as by the express provisions of the thirty-fourth section of the judiciary act of 1789, ch. 20v And then it is further contended, that by the law of New York, as thus expounded by its courts, a pre- existing debt does not constitute, in the sense of the general rule, a valuable consideration applicable to negotiable instruments. In the first place, then, let us examine into the decisions of the courts of New York upon this subject. In the earliest case, Warren v. Lynch, 5 Johns. 289, the Supreme Court of New York appear to have held, that a pre-existing debt was a sufficient consideration to entitle a bona fide holder without notice to recover the amount of a note endorsed to him, which might not, as between the original parties, be valid. The same doctrine was affirmed by Mr. Chancellor Kent in Bay v. Codding- ton, 5 Johns. Chan. 54. Upon that occasion he said, that negotiable paper can be assigned or transferred by an agent or factor, or by another person, fraudulently, so as to bind the true owner as against the holder, provided it be taken in the usual course of trade, and for a fair and valuable consideration, without notice of the fraud. But he added, that the holders in that case were not entitled to the benefit of the rule, because it was not negotiated to them in the usual course of business or trade, nor in payment of any antecedent and existing debt, nor for cash, or property advanced, debt created, or responsibility incurred, on the strength and credit of the notes; thus directly affirm- ing, that a pre-existing debt was a fair and valuable consideration within the protection of the general rule. And he has since affirmed the same doctrine, upon a full review of it, in his Commentaries, Vol., III. § 44, p. 81. The decision in the case of Bay v. Coddington, was after- wards affirmed in the Court of Errors, 20 Johns. 637, and the general reasoning of the chancellor was fully sustained. There were, indeed, peculiar circumstances in that case, which the court seem to have considered as entitling it to be treated as an exception to the general rule, upon the ground, either because the receipt of the note was under suspicious circumstances, the transfer having been made after the known insolvency of the endorser, or because the holder had received it as a mere security for contingent responsibilities, with which the holder had not then become charged. There was however a considerable diversity of opinion among the members of the Court upon that occa- sion, several of them holding that the decree ought to be reversed, others affirming that a pre-existing debt was a valuable consideration sufficient 328 NEGOTIATION OF BILLS AND NOTES. to protect the holders, and others again insisting, that a pre-existent debt was not sufficient. From that period, however, for a series of years, it seems to have been held by the Supreme Court of the state, that a pre-existing debt was not a sufficient consideration to shut out the equities of the original parties in favour of the holders. But no case to that effect has ever been decided in the Court of Errors. The cases cited at the bar, and especially Rosa v. Brotherson, 10 Wendell, 85 ; The Ontario Bank v. Worthington, 12 id. 593, and Payne v. Cutler, 13 id. 605, are directly in point. But the more recent cases, The Bank of Salina v. Babcock, 21 id. 490, and the Bank of Sandusky v. Scoville, 24 id. 115, have greatly shaken if they have not entirely overthrown those decisions, and seem to have brought back the doctrine to that promulgated in the earliest cases. So that, to say the least of it, it admits of serious doubt, whether any doctrine upon this questicin can at the present time be treated as finally established; and it is certain, that the Court of Errors have not pronounced any positive opinion upon it. But, admitting the doctrine to be fully settled in New York, it remains to be considered, whether it is obligatory upon this Court, if it differs from the principles established in the general commercial law. It is observable that the Courts of New York do not found their decisions upon this point upon any local statute, or positive, fixed or ancient local usage ; but they deduce the doctrine from the general principles of com- mercial law. It is, however, contended, that the thirty-fourth section of the judiciary act of 17f(9, ch. 20, furnishes a rule obligatory upon this Court to follow the decisions of the state tribunals in all cases to which they apply. That section provides " that the laws of the several states, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision in trials at common law in the Courts of the United States, in cases where they apply." In order to maintain the argument, it is essential, therefore, to hold, that the words "laws," in this section, includes within the scope of its meaning the decisions of the local tii- bunals. In the ordinary use of language it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not of themselves laws. They are often re-examined, reversed, and qualified by the Courts themselves, whenever they are found to be either defective, or ill-founded, or other- wise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. In SWIFT V. TYSON. 329 all the various cases, which have hitherto come before us for decision, this Court have uniformly supposed, that the true interpretation of the thirty-fourth section limited its application to state laws strictly local, that is to say, to the positive statutes of the state, and the construction thereof adopted by the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and perma- nent operation, as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general com- mercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, what is the true exposition of the contract or instru- ment, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in holding, that this section, upon its true intendment and construction, is strictly limited to local statutes and local usages of the character be- fore stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretation and effect whereof are to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this Court ; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. The law respect- ing negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burrow, 883, 887, to be in a great measure, not the law of a single country only, but of the commercial world. " Non erit alia lex Romse, alia Athenis, alia nunc alia posthac, sed et apud omnes gentes, et omni tempore, una eademque lex ohtinehit." It becomes necessary for us, therefore, upon the present occasion, to express our own opinion of the true result of the commercial law upon the question now before us. And we have no hesitation in saying, that a pre-existing debt does constitute a valuable consideration in the sense of the general rule already stated, as applicable to negotiable instru- ments. Assuming it to be true (which, however, may well admit of some doubt from the generality of the language), that the holder of a negotiable instrument is unaffected with the equities between the ante- 330 NEGOTIATION OP BILLS AND NOTES. cedent parties, of which he has no notice, only where he receives it in the usual course of trade and business for a valuable consideration, before it becomes due; we are prepared to say, that receiving it in pay- ment of, or as security for pre-existing debt, is according to the known usual course of trade and business. And why upon principle should not a pre-existing debt be deemed such a valuable consideration ? It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for pre-existing debts. The creditor ia thereby enabled to realize or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor also has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper cannot be applied in payment of or as security for pre-existing debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essen- tially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts. What, indeed, upon such a doctrine would become of that large class of cases, where new notes are given by the same or by other parties, by way of renewal or security to banks, in lieu of old securities discounted by them, which have arrived at maturity ? Probably more than one- half of all bank transactions in our country, as well as those of other countries, are of this nature. The doctrine would strike a fatal blow at all discounts of negotiable securities for pre-existing debts. This question has been several times before this Court, and it has been uniformly held, that it makes no difference whatsoever as to the rights of the holder, whether the debt, for which the negotiable instru- ment is transferred to him, is a pre-existing debt, or is contracted at the time of the transfer. In each case he equally gives credit to the instru- ment. The cases of Coolidge v. Payson, 2 Wheaton, 66, 70, 73, and Townsley v. Sumrall, 2 Peters, 170, 182, are directly in point. In England the same doctrine has been uniformly acted upon. As long ago as the case of Pillans and Rose v. Van Meirop and Hopkins, 3 Burrow, 1664, the very point was made and the objection was over- ruled. That, indeed, was a case of far more stringency than the one now before us ; for the bill of exchange, there drawn in discharge of a pre-existing debt, was held to bind the party as acceptor, upon a mere SWIFT V. TYSON. 331 promise made by him to accept before the bill was actually drawn. Upon that occasion Lord Mansfield, likening the case to that of a letter of credit, said, that a letter of credit may be given for money already, advanced, as well as for money to be advanced in future : and the whole Court held the plaintiff entitled to recover. From that period down- ward there is not a single case to be found in England in which it has ever been held by the Court, that a pre-existing debt was not a valuable consideration, sufficient to protect the holder, within the meaning of the general rule, although incidental dicta have been sometimes relied on to establish the contrary, such as the dictum of Lord Chief Justice Abbot in Smith v. De Witt, 6 Dowling & Ryland, 120, and De la Chaumette v The Bank of England, 9 Barnewall & Cresswell, 209, where, however, the decision turned upon very different considerations. Mr. Justice Bayley, in his valuable work on bills of exchange and promissory notes, lays down the rule in the most general terms. "The want of consideration," says he, " in toto or in part, cannot be insisted on, if the plaintiff or any intermediate party between him and the defendant took the bill or note bona fide and upon a valid considera- tion. "(1) It is observable that he here uses the words " valid consider- ation," obviously intending to make the distinction, that it is not intended to apply solely to cases, where a present consideration for advances of money on goods or otherwise takes place at the time of the transfer and upon the credit thereof. And in this he is fully borne out by the authorities. They go farther, and establish, that a transfer as security for past, and even for future responsibilities, will, for this pur- pose, be a sufficient, valid and valuable consideration. Thus in Bosan- quet V. Dudman, 1 Starkie, 1, it was held by Lord Ellenborough, that if a banker be under acceptances to an amount beyond the cash balance in his hands, every bill he holds of that customer's, bona fide, he is to be considered as holding for value ; and it makes no diiference, though he hold other collateral securities, more than sufficient to cover the excess of his acceptances. The same doctrine was affirmed by Lord Eldon in Ex parte Bloxham, 8 Vesey, 531, as equally applicable to past and to future acceptances. The subsequent cases of Heywood v. Wat- son, 4 Bingham, 496, and Braraah v. Roberts, 1 Bingham's New Cases, 469, and Percival v. Frampton, 2 Crompton, Meeson &Roscoe, 180, are to the same efl'ect. They directly establish that a bona fide holder, taking a negotiable note in payment of or as security for a pre-existing debt is a holder for a valuable consideration, entitled to protection against all the equities between the antecedent parties. And these are (1) Bayley on Bills, p. 499, 500, 5th London edition, 1830. 332 NEGOTIATION OF BILLS AND NOTES. the latest decisions, whicli our researches have enabled us to ascertain to have been made in the English Courts upon this subject. In the American Courts, so far as we have been able to trace the decisions, the same doctrine seems generally, but not universally to prevail. In Brush v. Scribner,(l) the Supreme Court of Connecticut, after an elaborate review of the English and New York adjudications, held upon general principles of commercial law, that a pre-existing debt was a valuable consideration, suiBcient to convey a valid title to a bona fide holder against all the antecedent parties to a negotiable note. There is no reason to doubt, that the same rule has been adopted and constantly adhered to in Massachusetts ; and certainly there is no trace to be found to the contrary. In truth, in the silence of any adjudications upon the subject, in a case of such frequent and almost daily occurrence in the commercial states, it may fairly be presumed, that whatever constitutes a valid and valuable consideration, in other cases of contract, to support titles of the most solemn nature, is held a fortiori to be sufficient in cases of negotiable instruments, as indispen- sable to the security of holders, and the facility and safety of their circulation. Be this as it may, we entertain no doubt, that a bona fide holder, for a pre-existing debt, of a negotiable instrument, is not aff'ected by any equities between the antecedent parties, where he has received the same before it became due, without notice of any such equities. We are all, therefore of opinion, that the question on this point, propounded by the Circuit Court for our consideration, ouglit to be answered in the negative ; and we shall accordingly direct it so to be certified to the Circuit Court. Mr. Justice Catron said : Upon the point of difference between the judges below, I concur, that the extinguishment of a debt, and the giving a post consideration, such as the record presents, will protect the purchaser and assignee, of a negotiable note, from the infirmity affecting the instrument before it was negotiated. But I am unwilling to sanction the introduction into tlie opinion of this Court, a doctrine aside from the case made by the record, or argued by the counsel, assuming to maintain, that a negotiable note or bill pleaded as collateral security, for a previous debt, is taken by the creditor in the due course of trade; and that he stands on the foot of him who purchases in the market for money, or takes the instrument in extinguishment of a previous debt. State Courts of high authority on commercial questions have held otherwise ; and that they will yieid (1) 11 Connecticut, 3-.8. SWIFT V. TYSON. 333 to a mere expression of opinion of this Court, or change their course of decision in conformity to the recent English cases referred to in the principal opinion, is improbable; whereas, if the question was permitted to rest until it fairly arose, the decision of it either way by this Court, probably, would, and I think ought to settle it. As such a result is not to be expected from the opinion in this cause, I am unwilling to embar- rass myself with so much of it as treats of negotiable instruments taken as a pledge. I never heard this question spoken of as belonging to the case, until the principal opinion was presented last evening ; and there- fore I am not prepared to give any opinion, even was it called for by the record. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the southern district of New York, and on the point and question on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provid'ed, and was argued by counsel. On consideration whereof, it is the opinion of this Court, that the defendant was not, under the facts stated, entitled to the same defence to the action as if the suit was between the original parties to the bill ; that is to say, the said Norton, or the said Norton and Keith and the defendant: and that the evidence offered in defence and objected to, was not admissible as against the plaintiff in this action. Whereupon it is now here ordered and adjudged by this Court, that an answer in the negative be certified to the said Circuit Court. The endorsement and delivery of a negotiable instrument, transfer the title to the endorsee. And the negotiation of such an instrument, that is, a transfer, bona fide, in the usual course of business, for a valuable consideration and without notice, is a creation, in the endorsee, of an original and paramount right of action against the previous parties; and the instrument in his hands is discharged of all equitable and legal defences to which it may have been subject before it came to him.(l) The only exception is, where the instrument originally was made upon a consideration which by positive statute renders the instrument void, such as usury, or money lost by gaming; for, unless the instrument is expressly de- clared to be void, mere illegality of consideration will not vitiate the instrument (1) See Wheeler v. Gaild, 20 Pickering, 545, 553. 334 NEGOTIATION OF BILLS AND NOTES. in the hands of a bona fide holder ;(1) but even in such a case, the payee of a note thus made void for illegality of consideration, if he endorse and negotiate the note, is liable upon his endorsement to a bona fide holder without notice ; for his endorsement is a nevr contract. (2) [A habit has grown up, of late times, in England, and in many commercial cities of the United States of doing what in England is called " crossing'" checks, and here, of doing that which is somewhat similar, but has not as yet received any special name. In England the practice would seem to have been set afoot by the bankers; primarily for their mutual protection; though it is a protection to their customers also ; and here by the holders of checks, though it is here equally as in England, a protection to the banks. By this "crossing" of cheeks, is meant writing a banker's name across the front of a check. And w-hen the drawer or any holder does this by a check it is understood to be a direction to the banker on whom the check is drawn, not to pay that check unless it is presented to him by the banker whose name is written across it. It is a convenience to the bankers, of course, who are thus relieved from an inquiry into the character of the holder, by saying that they will not pay the check at all unless it comes through the banker with whose name it is crossed. Our m3rchants, brokers, &c., who are constantly deposit- ing large numbers of checks, which they send to bank by clerks, or errand boys, or porters, who are liable to lose them, or to have them stolen from them, or to abscond with them, sometimes stamp in large letters in red or blue ink, on the front or back of the check "For deposit" or "For deposit in bank;" or write over their endorsement, "Credit my account in bank:" or "Good only at the Bank;" the purpose of these and similar expressions being to indicate that the check is not meant for circulation, and is not payable at the ordinary counter and to any bearer, but is meant for deposit simply in a certain bank, through whoso runner, it will come to the bank on which it is drawn. And such a check, if presented in any way except through a bank or banker, would no doubt as a general thing, be refused. What are the legal effects of this kind of action upon checks, is not perhaps judicially settled in this country. • In England it seems to have been held that the "crossing" of a check does not affect its negotiability, that it may go on circulating indefinitely; and that if it finally comes into the hands of the banker with whose name it is crossed, and is presented by and paid to him, it is rightly paid. (8) But our object in this matter is probably different : and it is probable that with such expressions as are above spoken of, as frequent with our broker and traders, negotiability would be considered as stopped, and that a person who took a check, or a bank which paid one thus marked, might be held responsible in ease of a lost check, when, where the check was without such marking, no responsibility would attach.] With regard to the question particularly discussed in Swift v. Tyson, the /principle may now be considered as settled, that if the instrument is given (1) Vallett V. Parker, 6 Wendell, 615 ; Rockwell v. Charles, 2 Hill's N. Y., 499 ; Sauerwein v. Brunner, 1 Harris &, Gill, 477; Henderson u. Shannon, 1 Devereu.^, 147; Early i;. McCart, 2 Dana, 414, 416. (2) M'Knight «. Wheeler, 6 Hill's N. Y., 492. {">) See Carlnn c. Irclnml, 3fi Eng. Liiw and Eq., 130, and remarks there upon Bellamy v, Majoribanks, 7 E.\chtq., 389. SWIFT V. TYSON. 335 merely as collateral security for an existing debt, the right of action, on the/ original debt not being altered, it is not given for a valuable consideration andi is not discharged of equities; but if it is accepted in satisfaction and discharge') or extinguishment of the previous liability, or if a security be given up, or time j be given, or other new consideration intervene, the person so receiving the' instrument is a holder for value, and is not affected by previous equities ;(1) the courts in Georgia, indeed, and those also in Indiana, profess to consider a transfer by way of collateral security as a discharge of equities;(2) and notwithstanding the apparent or supposed hostility of the earlier decisions in New York and of decisions in Tennessee, to some of the foregoing, it is believed that an exami- nation of the adjudged cases will show that the principle and distinction above- mentioned, express the established law of both of those states [and since the case of Youngs v. Lee, 18 Barbour, 192, of New York particularly] ; the real difference, relating only to the question, what renders the receipt of a negoti- able note an extinguishment or discharge of a debt j the point of the New York cases being, that accepting a note nominally in payment, is, if the note be not paid, no discharge of the debt, but leaves the creditor's rights and remedies undisturbed. (3) That the satisfaction and discharge of a debt is a valuable con- sideration for the receipt of a note, is expressly decided in Bank of St. Albans V. Gilliland, 23 Wendell, 311; Montrossv. Clark, 2 Sandford, 115; and is admitted in Small v Smith, I Denio, 583 ; see, also. Bank of Salina v. Bah- cock, 21 Wendell, 499 ; and though the assistant Vice-Chancellor in Clark v. Ely &■ others, 2 Sandford, 166, 171, declared that the Bank of St. Albans v. Gilliland is not law in New York, yet there is no judicial decision overruling it, or conflicting with it. To say, as the New York judges do, that giving up a security for a debt is a consideration, and yet to hold that giving up the debt itself, and all right of action upon it, is not a consideration, would be absurd. The only question that the subject admits of, is, whether the agreement of the parties was such, that by the acceptance of the note, the debt was satisfied, dis- charged, released, or whether the right of action upon it remained unextin- guished. See the distinctions on this subject in the American note to Cumber \ v. Wane, 1 Smith's Leading Cases, 5th Am:ed.,446. In Fenby^i . Pritchard, '^ 2 Sandford, 152, it was held that if the giving of notes as collateral security (1) Youngs «. Lee, 18 IRarbour, 192 ; Petrie v. Clark and others, 11 Sergeant k Eawle, 377, 388; Depeau «. Waddington, 6 Wharton, 220, 232; Brush v. Scribner, 11 Connecticut, 388, 403; Homes «. Smith, 16 Maine, 177; Norton v. Waits, 20 Id., 175; Adams v. Smith, 35 Id., 325; Williams v. Little, 11 New Hampshire, 66, 70: Clement v. Leverett, 12 Id., 317, 318; Blanchard and another v. Stevens, 3 Cashing, 162 ; Allaire v. Hartshorne, 1 Zabriskie, 665 ; Carlisle v. Wishart, 11 Ohio, 172; Breckinridge p. Moore, Ac, 3 B. Monroe, 629, 636; Russell V. Hadduck, 3 Gilman, 233; The Bank of Mobile, Hallett A als. v. Hall, 6 Alabama, 639; Pond et al. V. Lockwood et al., 8 Id., 669, 675; Andrews & Brothers v. M'Coy, Id., 921 : Barney v. Earle et al., 13 Id., 106, 112; Saltmnrsh ti. Tuthill, Id., 390, 399; Bostwick t-. Dodge, 1 Douglass, 413; Bu.«h v. Peckard, 3 Harrington, 385, 388; Bond v. The Central Bank of Georgia, 2 Kelly, 93, 102. (2) Gibson et al. v. Connor, 3 Id., 47; Vallette i\ Mason, 1 Carter, 288. (3) See Stnlkcr v. M'Donald, 6 Hill's N. Y., 93; Williams v. Smith, 2 Id., 301 ; and Youngs i;. Lee, 18 Barbour, 192, already cited; Mohawk Bank n. Corey, 1 Id., 513; White v. The Springfield Bank, 1 Barbour's S. Ct., 225 ; Spear v. Myers, 6 Id., 445 ; Nichol v. Bute. 10 YerciT, 429; Wormley v. Loirry, 1 Humphreys, 468; Van Wyck -v. Norvell et al., 2 Id., 192; Ingham a. Vaden et als., 3 Id., 51 ; Ingram i. Morgan, Garrett et iil., 4 Id., 66. 836 NEGOTIATION OF BILLS AND NOTES. was OQe of the conditions of a sale, the vendor was a holder for value, discharged from equities. But unless a note is taken in good faith, for a valuable consideration, and without notice, the holder is considered as being in privity with his endorser. There are several circumstances which create this privity. One is where the endorsement is colourable ;(1) another is where it is without consideration. (2) A third is where the endorsee takes the instrument with actual notice ;(3) and this distinction has been taken, that where the action is brought by an endorsee, or other third person who is not named in the note, it will be presumed till the contrary is shown, that he took it in the regular course of negotiating commer- cial paper, and, as a general rule, the maker cannot set up any equities existing between himself and the payee, until he has given evidence to impeach the plaintiff's title; but when the action is brought by the payee named in the note, although it may appear that in point of fact, he was not a party to the transaction upon which the note was made, there is no such presumption in his favour; in other words, being payee is a presumption of notice. (4) An- other case in which the endorsee is affected by the equities which existed against his endorser, is where the instrument is taken under suspicious circum- stances, such as ought to have put him on his guard, and would have alarmed a man of ordinary prudence ;(5) or where there is enough on the face of the instrument to create a suspicion, that it is issued against law. (6) The rule is the same where a bill, upon its face, has been dish^moured by nou-acceptanee or non-payment; (7) or where a note or bill is negotiated over-due, for in that case, it is considered as discredited upon its face. If it be payable at a time certain, it is of course over-due after the last day of grace is expired, and the endorsee after that time takes it subject to equities. (8) A note which is pay- able on demand, or without fixed time, is considered as payable within a reason- able time, and if endorsed after a reasonable time, passes subject to equities, and reasonable time is a question of law.(9) No fixed measure of reasonable time has yet been determined ; two days, and even one month, have been held to be within the limit ;(10) and eight months, and even two months, beyond (1) Ayer v. Hutchins et al., 4 Massachusetts, 370, 37.3 ; Henderson & Dial v. Irby, I Speers, 43, 47. (2) Lawrence v. Stonington Bank, 6 Connecticut, 521 ; Muason v. Cheeseborough, 6 Blaols- ford, 17. (3) See Small v. Smith, 1 Denio, 583. (4) Nelson v. Cowing, 6 Hill's N. Y., 337. (5) Beltzhoover v. Blackstock, 3 Watts, 20, 25; Cone v. Baldwin, 12 Pickering, 645; Hall v. Hale, 8 Connecticut, 337; Hunt v. Sandford, 6 Terger, 387. (6) Safford v. Wyckoff, 4 Hill's N. Y., 442 ; Smith v. Strong, 2 Id., 241 ; Thompson v. Hale, 6 Pickering, 256. (7) Andrews v. Pond et al., 13 Peters, 66, 79 ; Fowler v. Brantly et al., 14 Id., 318, 321. (8) Mackay v. Holland, 4 Metcalf, 69; Howard v. Ames, 3 Id., 303; Potter v. Tyler and another, 2 Id., 68; De Mott v. Starkey, 3 Barbour's Chaneery, 403; M'Neill „. M'Donald, 1 Hill's So. Car., 1. (9) Sylvester v. Craps, 15 Pickering, 92; Knowles v. Parker, 7 Metcalf, 31; Tucker v. Smith, 4 Greenleaf, 415. (10) Dennett v. Wymans et al., 13 Vermont, 485 ; Ranger v. Gary and others, 1 Metcalf, 369, 374. SWIFT V. TYSON. 337 it.(l) In Weikey v. Andrews, 3 Hill's N. Y. 582, a distinction was declared to exist, as to the length of time that will be reasonable, between a note payable on demand with interest, and one payable without interest, being longer in the former case, as it \i to be understood that when a note is payable with interest, it would be contrary to the usual course of business to demand payment short of some proper point for computing interest, such as a quarter, or half a year, or a year; and it was decided that four or five weeks was not too long upon a note carrying interest, though it would have been if the note had been without interest.(2) In a suit by the endorsee against the maker, when part of the defence is, that the note was endorsed over-due, the burden of proving the time of the endorsement is on the defendant ; an endorsement, in the absence of any evidence to the contrary, being always presumed to have been made at or about the date of the note;(3) but this presumption of fairness is a slight one, and easily countervailed by suspicious circumstances. (4) The principle, that a note payable on demand may become discredited by mere lapse of time, is not recognised in England (5) And in this country the principle is not con- sidered applicable to bank notes or bank post notes ; (6) nor apparently to checks marked "good." (7) An endorsement without recourse, or an assign- ment of the note on the back of it, without recourse, is not enough to make a holder for value, subject to the equities previously existing. (8) In the case of an ordinary assignment of a chose in action, where the suit must be brought in the name of the assignor, the assignee is usually, under statutes of set-ofi', subject to all set-oflfs existing between the parties, till the time of the assignment and notice ; but in the case of an endorsement of a note, under circumstances to leave the endorsee in privity with his endorser, it is now settled in England, and in most courts in this country, that the en- dorsee is affected only by those defences that are connected with the note itself, and not by antagonist claims, or set-offs, that are wholly independent of the note. (9) [And the endorsee of a note will consequently be entitled to recover against the maker even where he has full notice or knowledge that the endorse- ment is made for the purpose of defeating a set-off held by the latter against the (1) American Bank ti. Jenness and others, 2 Metcalf, 288; Nevins v. Townaend, 6 Connec- ticut, b] Camp V. Clark, Trustee, 14 Vermont, 387. (2) See Tliompson v. Hale, 6 Pickering, 259. (3) Burnham v. Wood, 8 New Hampshire, 334, 336; Burnham v. Webster, 19 Maine, 232; Kanger v. Cary and others, 1 Metcalf, 369, 373; Cain c. Spann, 1 McMuUan, 258; White v. Camp, 1 Florida, 94, 101; Hutchins v. Flintge et al., 2 Texas, 473. (4) Snyder v. Riley, 6 Barr, 165, 168. (5) Brooks v. Mitchell, 9 Meeson &, Welsby, 15 ; Sylvester i-. Crapo, 15 Pickering, 92, 94. (6) The Fulton Bank «. The Phoenix Bank, 1 Hall, 562, 577 ; see Key v. Knott and wife, 9 Gill & Johnson, 342, 364. (7) Willets V. The Phoenix Bank, 2 Duer, 121. (8) Epler v. Funk, 8 Barr, 468; Bisbing v. Graham, 2 Harris, 14. (9) Burrough u. Moss, 10 Barnewall k Cresswell, 668 ; Whitehead i'. Walker, 10 Meeson A Welsby, 696 ; Hughes v. Large, 2 Barr, 103 ; Cumberland Bank v. Hann, 3 Harrison, 223 ; Gullet V. Hoy, 16 Misi^ouri, 399; Hawkins v. Shuuse, 2 Carter, 342; Chandler v. Brew, 6 New Hampshire, 469; Robinson v. Lyman, 10 Connecticut, 31; Stedman v. Jillson, Id., b^i; Brittou V. Bishop et al., 11 Vermont, 70; Robertson u. Brcedlove, 7 Porter, 541; Tuscumbia, &c. R. R. Co. et al. k. Rhodes, 8 Alabama, 206, 224; Tinsley c. Beall, 2 Kelly, 134; Renwick s. Williams, 2 Marylmid, 366. VOL. I. — 22 338 NEGOTIATION" OF BILLS AND NOTES. endorser. ](1) In Massachusetts, however, general set-offs are admissible;("2) up to the time of the transfer of the title, but not till notice of it to the maker.(3) The decisions in Massachusetts have been followed in Maine. (4) In Hew York the point was considered doubtful in Minon v. Eoyt, 4 Hill's JSf. Y. 193, 197. In South Carolina, all set-offs between the original parties to the note existing at the time of the transfer, appear to be admitted in case of a note en- dorsed over-due. (5) In Alabama, under a statute rendering notes assignable, it has been decided that set-offs between the maker and intermediate endorsees are not admissible. (6) In Maine, it has been decided that if a note is nego- tiated before it is due to one who thereby acquires a perfect title, his endorsing it after it is due will not revive against the endorsee equities which could not have been enforced against the endorser. (7) [It is hardly necessary to add that prima facie the Cashier of a Bank or Treasurer of a Corporation possesses the power to endorse its negotiable securities.] (8) (1) Oulds V. Harrison, 10 Exchequer, 572. (2) Sargent et al. v. Southgate, 5 Pickering, 312. (3) Ranger i>. Gary and ottiers, 1 Metcalf, 369, 376; Baxter v. Little & Harris, 6 Id. 7, 11. (4) Bumham v. Tucker, 18 Maine, 179; Wood v. Warren, 19 Id., 23; Bartlett v. Pearson, 29 Id. 9, 16. (5) Nixon V. English, 3 McCord, 549 ; Perry v. Mays, 2 Bailey, 354; Cain v. Spann, 1 McMuUan, 258. (6) Stocking v. Tonlmin, 3 Stewart &> Porter, 35; Kennedy v, Mansliip and others, 1 Alabama, 43; Pitts v. Shortridge's adm'r., 7 Id. 494.. (7) Smith V. Hisoock, 14 Maine, 449. (8) Maxwell v. Planters' Bk., 10 Humphreys, 507. m'gruder v. bank: tr. s. bank v. smith: etc. 339 OF THE PRESENTMENT OF A BILL OR NOTE AT THE TIME OF PAYMENT, IN ORDER TO CHARGE THE ENDORSER. GEORGE M'GRUDER, plaintiff in error v. the president, di- rectors, AND COMPANY OF THE BANK OF WASHINGTON, DE- FENDANTS IN ERROR. In the Supreme Court of the United States. march term, 1824. [reported from 9 Wheaton, 598-602.] Where the maker of a note has removed into another State, or another Jurisdiction, subsequent to the making of the note, a personal demand upon him is not necessary to charge the endorser. Such a removal is an excuse from actual demand. This case came up on a writ of error upon a case stated from the Circuit Court of the District of Columbia, in which a suit had been instituted against the plaintiflF here, (George M'Gruder), as endorser of a promissory note drawn by one Patrick M'Gruder: Judgment was given, below for the plaintiffs in the action. At the time of drawing the note, and until within ten days of its fall- ing due, the maker was a housekeeper in the District of Columbia. But he then removed to the State of Maryland, to a place within about nine miles of the District. The case admitted that neither the holder of the note, nor the notary knew of his removal or place of residence ; but the circumstances of his removal had nothing in them to sanction its being construed into an act of absconding. The words of the admission to this point are, that he " went to the house where the said Patrick had last resided, and from which he had removed as aforesaid, in order there to present the said note, and demand payment of the same ; and not finding him there, and being ignorant of his place of residence, returned the said note under protest." There was, confessedly, no actual demand on the maker : and the question therefore here raised was whether the holder had done all that he was bound to do, to excuse it. The opinion of the court was delivered by Mr. Justice Johnson. On this subject the law is clear: a demand on the maker is, in general, indispensable ; and that demand must be made at his place of abode or 340 PRESENTMENT OF BILLS AND NOTES. place of business. That it should be strictly personal, in the language of the submission, is not required ; it is enough if it is at his place of abode, or, generally, at the place where he ought to be found. But his actual removal is here a fact in the case, and in this, as well as every other case, it is incumbent upon the endorsee to show due diligence. Now, that the notary should not have found the maker at his late resi- dence, was the necessary consequence of his removal, and is entirely consistent with the supposition of his not having made any one of those inquiries which would have led to a development of the cause why he did not find him there. Non Constat, but he may have removed to the next door, and the first question would, most probably, have extracted information that would have put him on further inquiry. Had the house been shut up, he might with equal correctness, have returned, " that he had not found him," and yet that clearly would not have excused the demand, unless followed by reasonable inquiries. The party must, then, be considered as lying under the same obliga- tions as if, having made inquiry, he had ascertained that the maker had reinoved to a distance of nine miles, and into another jurisdiction. This is the utmost his inquiries could have extracted, and marks, of course, the outlines of his legal duties. Mere distance is, in itself, no excuse from demand; but, in general, the endorser takes upon himself the inconvenience resulting from that cause. Nor is the benefit of the post-office allowed him, as in the case of notice to the endorser. But the question on the recent removal into another jurisdiction, is a new one, and one of some nicety. In a case of original residence in a State different from that of the endorser, at the time of taking the paper, there can be no question ; but how far, in case of subsequent and recent removal to another State, the holder shall be required to pursue the maker, is a question not without its difficulties. We think that reason and convenience are in favour of sustaining the doctrine, that such a removal is an excuse from actual demand. Preci- sion and certainty are often of more importance to the rules of law, than their abstract justice. On this point there is no other rule that can be laid down, which will not leave too much latitude as to place and dis- tance. Besides which, it is consistent with analogy to other cases, that the endorser should stand committed, in this respect, by the conduct of the maker. For his absconding or removal out of the kingdom, the endorser is held, in England, to stand committed ; and, although from the contiguity, and, in some instances, reduced size of the States, and their union under the general government, the analogy is not perfect, m'grudeb t. bank: u. s. bank v. smith: etc. 341 yet it is obvious, that a removal from the sea-board to the frontier States, or vice versa, would be attended with all the hardships to a holder, especially one of the same State with the maker, that could result from crossing the British channel. With this view of the subject, we are of opinion that the judgment below, although rendered on a different ground, must be sustained. Judgment affirmed. THE PRESIDENT, DIKECTORS, AND COMPANY OF THE BANK OF THE UNITED STATES against SMITH. In the Supreme Court of the United States. FEBRUARY TERM, 1826. [reported, 11 WHEATON, 171-183.] As against the maker of a promissory note or the acceptor of a hill of ■ exchange, payable at a particular place, no averment in the declara- tion, or proof at the trial, of a demand at the place designated, is necessary. But, as against the endorser of a hill or note, payahle at a particular place, such averment and proof are, in general, necessary. Where a hill or note is payahle at a particular hank, and the hank itself is the holder, averment and proof of a formal demand at that place, are unnecessary, even in a suit against the endorser. If the holder neglects to appear there when the note falls due, a formal demand has hecome impracticable hy his default : and all that can he required is, that the hooks of the hank should he examined, to ascertain whether the maker had any funds in their hands. Error to the Circuit Court for the District of Columbia. This cause was argued by Mr. Lear, for the plaintiffs,(l) and by Mr. Taylor, for the defendants.(2) Mr. Justice Thompson delivered the judgment of the Court. This case comes before the Court on a writ of error to the Circuit (1) He cited 2 H. Bl. 509; 3 Mass. Rep. 403 ; 3 Mass. Rep. 524; 12 Mass. Rep. 403 ; 8 Mass. Rep. 480; 1 Wheat. Rep. 373; Dougl. Rep. 132,218; 1 Johns. Rep. 241; 5 Johns. Rep. 1; 2 Wash. Rep. 253. (2) He cited 2 Brod. & Bingh. 165; 17 Johns. Rep. 248; Chitty on Bills, 321. 842 PRESENTMENT OF BILLS AND NOTES. Court for the District of Columbia, and the questions presented for consideration grow out of a demurrer to the evidence, and out of excep- tions taken to the declaration. The action is by the plaintiffs, as endorsees, against the defendant, as endorser of a promissory note drawn by William Young. The note is made payable at the ofiBce of discount and deposit of the Bank of the United States, in the city of Washington, And the questions which have been raised and argued, relate, in the first place, to the sufiBciency of the averment in the declaration of a demand of payment of the drawer of the note ; and, secondly, to the sufficiency of the evidence to sustain the plaintiff's right of recovery. It is alleged, however, on the part of the plaintiffs, that this Court cannot look beyond the demurrer, to the evidence, and inquire into defects in the declaration. This posi- tion cannot be sustained. The doctrine of the King's Bench, in Eng- land, in the case of Cort v. Birkbeck, (Dougl. Rep. 208,) that, upon a demurrer to evidence, the party cannot take advantage of any objec- tions of the pleadings, does not apply. By a demurrer to the evidence, the Court in which the cause is tried is substituted in the place of the jury. And the only question is, whether the evidence is sufficient to maintain the issue. And the judgment of the Court upon such evidence will stand in the place of the verdict of the jury. And, after that, the defendant may take advantage of defects in the declaration, by motion in arrest of judgment, or by writ of error. But, the present case being brought here on a writ of error, the whole record is under the consider- ation of the Court ; and the defendant, having the judgment of the Court below in his favour, may avail himself of all defects in the decla- ration, that are not deemed to be cured by the verdict. The objection to the declaration is, that it does not contain an aver- ment, that a demand of payment of the maker of the note was made at the place where it was made payable. It is a general rule in pleading, that where any fact is necessary to be proved on the trial, in order to sustain the plaintiff's right of reco- very, the declaration must contain an averment substantially of such fact, in order to let in the proof. But the declaration need not contain any averment which it is not necessary to prove. For the purpose, therefore, of determining whether the declaration in this case is sub- stantially defective, for want of an express averment that demand of payment of the maker was made at the office of discount and deposit of the Bank of the United States, in the city of Washington, it is proper to inquire whether proof of the fact was indispensably necessary to entitle the plaintiff to recover. M'GErDEB V. BANK: U, S. BANK V. SMITH: ETC. 343 Whether, where the suit is against the maker of a promissory note, or the acceptor of a bill of exchange, payable at a particular place, it is necessary to aver a demand of payment at such a place, and, upon the trial, to prove such demand, is a question upon which conflicting opinions have been entertained in the Courts in Westminster Hall. But, that this question may, perhaps, be considered at rest in England, by the decision in the late case of Rowe v. Young, (2 Broderip & Bing- ham 165,) in the House of Lords. It was there held, that if a bill of exchange be accepted, payable at a particular place, the declaration in an action on such bill against the acceptor, must aver presentment at that place, and the averment must be proved. A contrary opinion has been entertained by Courts in this country, that a demand on the maker of a note, or the acceptor of a bill payable at a specific place, need not be averred in the declaration, or proved on the trial. That it is not a condition precedent to the plaintiff's right of recovery. As matter of practice, application will generally be made at the place appointed, if it is believed that funds have been there placed to meet the note or bill. But, if the maker or acceptor has sustained any loss by the omission of the holder to make such application for payment at the place appointed it is a matter of defence to be set up by plea and proof.(l) This question, however, does not necessarily arise in the case now before the Court, and we do not mean to be understood as expressing any decided opinion upon it, although we are strongly inclined to think, that, as against the maker or acceptor of such a note or bill, no aver- ment, or proof , of demand of payment at the place designated, would be necessary. But when recourse is had to the endorser of a promissory note, as in the present case, very different considerations arise. He is not the original and real debtor, but only surety. His undertaking is not gen- eral, like that of the maker, but conditional, that if upon due diligence having been used against the maker, payment is nut received, then the endorser becomes liable to pay. This due diligence is a condition pre- cedent, and an indispensable part of the plaintiff's title, and right of recovery against the endorser. And when, in the body of the note, a place of payment is designated, the endorser has a right to presume that the maker has provided funds at such place to pay the note, and has a right to require of the holder to apply for payment at such place. And whenever a note is made payable at a bank, and the bank itself is not the holder, an averment, and proof of the demand at the place appointed in the note are indispensable. In the present case, the bank (1) 4 Johnson, 183 ; 17 Id. 248. 344 PRESENTMENT OF BILLS AND NOTES. at which the note is made payable, is the holder, and the question arises, ■whether, in such case, averment and proof of a fornaal demand are necessary. If no such proof could be required, the averment would be immaterial, and the want of it could not be taken advantage of upon a writ of error. In the case of Saunderson and others v. Judge (2 H. Blackstone, 509), the plaintiffs, at whose house the note was made payable, being themselves the holders of the note, it was held to be a sufficient demand for them to turn to their books, and see the maker's account with them, and it was deemed a suflBcient refusal, to find that the maker had no effects in their hands. So, in the case of the Berkshire Bank v. Jones, (1) decided in the Supreme Judicial Court of Massachusetts, Chief Justice Parsons, in delivering the opinion of the Court, said, that " the plaintiffs being the holders of the note, we must presume it was in their bank, and there it was made payable. They were not bound to look up the maker, or to demand payment of him at any other place. The defendant, by his endorsement, guarantied, that on the day of pay- ment the maker would be at the bank and pay the note, and if he did not pay it there, he agreed he would be answerable for it without pre- vious notice of the default of the maker." The rule here laid down has received the sanction of that Court in subsequent cases, (2) and is founded in good sense and practical convenience, without in any manner prejudicing the rights of the maker, or the endorser of the note. The endorser, knowing that the maker has bound himself to pay the note at a place appointed, has a right to expect that he will provide funds at that place to take up the note ; and he will be more likely to be exon- erated from his liability, by having the demand made there, than upon the maker personally. But, if the bank where the note is made paya- ble is the holder, and the maker neglects to appear there when the note falls due, a formal demand is impracticable by the default of the maker. All that can in fitness be done, or ought to be required, is that the books of the bank should be examined, to ascertain whether the maker liad any funds in their hands; and, if not, there was a default, which gave to the holder a right to look to the endorser for payment. And even this examination of the books was not required in the cases cited from the Massachusetts Reports. The maker was deemed in default by not appearing at the bank to take up his note when it fell due. We should incline, however, to think, that the books of the bank ought to be exa- mined, to ascertain whether the maker had any balance standing to his (1) 6 Massachusetts, 524. (2) 12 Massachusetts, 404; 14 Id. Eep. 656. M'GKUDEBV. bank: U. S. BAIfKV. SMITH: ETC. 345 credit ; for, if he had, the bank would have a right to apply it to the payment of the note ; and no default would be incurred by the maker, which would give a right of action against the endorser. The declaration in this case does not contain an averment that the note was presented to the maker, that he refused to pay it, and that notice of the non-payment was given to the endorser. Whether this averment is broad enough to admit all the proof necessary to sustain the action against the endorser, is the question which arises upon the declaration. If, by reason that the bank where the note was made payable was the holder, no personal presentment or demand of the maker, could be required, the averment, so far as it asserts such pre- sentment, is surplusage, and no proof was necessary to support it. What then, in such case, is a presentment of the note ? It would be an idle ceremony to require the bank to take the note from its files, and lay it upon the counter, or make any other public exhibition of it. All that could be required is, that the note be there, ready to be delivered up if payment should be ofi'ered. When the note is held by a third person, it is practicable, and there is a fitness in requiring the holder to inquire at the bank for the maker, and whether he has provided any funds there to pay the note. But when the bank itself is the holder, it would be impracticable for it to make such inquiry in any other manner than by ascertaining that the note was there, and examining the books to see if the maker had any funds in the bank. If the note was there, it was a presentment, and if the maker had no funds in the bank, it was a refusal of payment, according to the legal acceptation of these terms under such circumstances. The evidence upon the trial was introduced under this averment without objection, and if that is sufficient to entitle the plaintiff to re- cover, the Court ought not readily to yield to technical objections where the defendant has had the full benefit of whatever defence he had to make. Under this state of the case, we think, the exception taken to the declaration cannot prevail. And the next inquiry is, whether the evidence to which the defendant demurred was sufficient to sustain the action. By this demurrer, the defendant has taken the questions of fact from the jury, where they properly belonged, and has substituted the Court in the place of the jury, and everything which the jury could reasona- bly infer from the evidence demurred to, is to be considered as admitted. The language of adjudged cases on this subject is very strong, to show that the Court will be extremely liberal in their inferences, where the party, by demurring, will take the question from the proper tribunal. 346 PRESENTMENT OF BILLS AND NOTES. It is a course of practice, generally speaking, that is not calculated to promote the ends of justice. If the objection to the sufficiency of the evidence is made by way of motion for a non-suit, it might be removed by testimony -within the immediate command of the plaintiff. The deficiency very often arises from mere inadvertence, and omission to make inquiries, which the witnesses examined could probably answer. In order to determine whether the evidence was sufficient to support the action, it is proper to state what proof was necessary. The plaintiffs, to entitle them to recover, were bound to show that they were the endorsees and holders of the note ; that the note was at the bank, where it was made payable at the time it fell due ; that the maker had no funds there to pay the note ; and that due notice of the default of the maker was given to the defendant. The endorsement of the note to the plaintiffs, and that it was dis- counted in the office of discount and deposit of the Bank of the United States at Washington, where it was made payable, was fully proved. And the jury would have had a right to presume that the note was then at the bank, where it was discounted ; and the bank being the holder and owner of the note, the presumption, at least, prima facie, is, that it remained in the bank, to be delivered up when paid. This establishes the two first points ; and to show that the maker had no funds in the bank, the book-keeper was examined as a witness, who swore, that on the 19th day of July, 1817, when the note fell due, there was no balance to the credit of the drawer, or either of the endorsers, on the books of the bank. And the remaining question is, whether due notice of the default of the maker was given to the defendant. The only objection to the sufficiency of the evidence on this point is, that the notice of non- payment was left at the post-office in the city of Washington, addressed to the defendant at Alexandria, without any evidence that that was his place of residence. The testimony on this point is that of Michael Nourse, a notary public, who swore, that on the day the note fell due, he presented at the store of the defendant, and demanded payment of his clerk, who replied, that Mr. Young was not within, and he would not pay it. And that, on the same day, he put in the post-office notice of non-payment, addressed to the defendant at Alexandria. If the defendant's place of residence was Alexandria, it is not denied but that due and regular notice was given him. The notary was a sworn officer, officially employed to demand payment of this note, and it is no more than reasonable to presume that he was instructed to take all necessary steps to charge the endorsers. This must have been the object in view in demanding payment of the maker. And it is fair, also, to presume, m'geuderv. bank: u. s. bank v. smith: etc. 347 that he made inquiry for the residence of the defendant before he addressed a letter to him ; for it is absurd to suppose he would direct to him at that place, without some knowledge or information that he lived there, this being the usual and ordinary course of such transactions, and with which the notary was, no doubt, acquainted. The jury would, undoubtedly, have been warranted to infer, from this evidence, that the defendant's residence was in Alexandria. If that was not the fact, this case was a striking example of the abuse which may grow out of demurrers to evidence. For, a single question to the witness would have put at rest that point, one way or the other, if the least intimation had been given of the objection. It was, manifestly, taken for granted by all parties that the defendant lived at Alexandria. And if a party will, upon trial, remain silent, and not suggest an inquiry, which was obviously a mere omission on the part of the plaintiflF, a jury would be authorized to draw all inferences from the testimony given, that would not be against reason and probability ; and the Court, upon a demurrer to the evidence, will draw the same conclusions that the jury might have drawn. We are, accordingly, of opinion, that the evidence was sufiScient to entitle the plaintiflFs to recover. That the judgment of the Court below must be reversed, and the cause sent back, with directions to enter judgment for the plaintiffs, upon the demurrer to evidence, for the amount of the note, *nd interest. Judgment. This cause came on, &c. On consideration whereof, it is ordered and adjudged, that the judgment of the said Circuit Court, on the demurrer to evidence in the said cause, be reversed. And it is further ordered and adjudged, that the said cause be remanded to the said Circuit Court, with instructions that judgment be entered there on said demurrer, for the plaintiffs in the cause; and further, that the Court there do render judgment on the contingent verdict found for the plaintiffs, according to the tenor thereof, with costs, &c. 848 PRESENTMENT OF BILLS AND NOTES. WILLIAM WALLACE, plaintiff in error, v. CORRY M'CONNELL, defendant in error. In the Supreme Court of the United States. JANUARY TERM, 1839. [reported from 13 PETERS, 137-152.] In an action against the maTcer or acceptor of a note or hill payable at a particular place, it is not necessary to aver or prove a demand at that place upon the maturity of the note : but if the defendant was there at the time, ready to pay, it is a matter of defence to he shown hy him. The action in the Court below (the District Court of the United States for the southern district of Alabama) was founded upon a promissory note in the words following : " Three years and two months after date, I promise to pay to Corry M'Connell or order, at the office of discount and deposit of the Bank of the United States, at Nashville, four thousand eight hundred and eighty dollars, ninety-nine cents, value received." The declaration set out this note according to its terms, and alleged 4he promise to pay at the office of discount and deposit of the Bank of the United States, at Nashville ; without averring that the note was presented at the hank, or demand of payment made there. The defendant pleaded payment and satisfaction of the note; and issue being joined thereupon, an objec- tion was made to the declaration, "that it was bad for want of an aver- ment that the note was presented, and payment demanded at the office of discount and deposit of the Bank of the United States, at Nash- ville." The opinion of the Court was delivered by Johnson, J. The question raised as to the sufficiency of the declaration in a case where the suit is by the payee against the maker of a promissory note, never has received the direct decision of this Court. In the case of the Bank of the United States v. Smith (11 Wheaton, 172), the note upon which the action was founded was made payable at the office of discount and deposit of the Bank of the United States, in the city of Washing- ton ; and the suit was against the endorser, and the question turned upon the sufficiency of the averment in the declaration of a demand of M'GEUDER V. BANK: U. S. BANK V. SMITH: ETC. 849 payment of the maker. And the Court said, when in the body of a note, the place of payment is designated, the endorser has a right to presume that the maker has provided funds at such a place to pay the note ; and has a right to require the holder to apply at such place for payment. In the opinon delivered in that case, the question now pre- sented in the case before us is stated; and it is said, whether, where the suit against the maker of a promissory note, or the acceptor of a bill of exchange, payable at a particular place, it is necessary to aver a demand of payment at such a place, and upon the trial to prove such demand ; is a question upon which conflicting opinions have been entertained in the Courts in Westminster Hall ; but that the question in such case may, perhaps, be considered at rest in England, by the decision in the late case of Rowe v. Young (2 Broderip & Bingham, 165), in the House of Lords ; where it was held, that if a bill of exchange be accepted, payable at a particular place, the declaration of such bill, against the acceptor, must aver presentment at that place, and the averment must be proved. But it is there said a contrary opinion has been entertained by Courts in this country ; that a demand on the maker of a note, or the acceptor of a bill payable at a specified place, need not be averred in the declaration or proved on the trial ; that it is not a condition precedent to the plaintiff's right of recovery. As matter of practice, application will generally be made at the place appointed ; if it is believed, that funds have been there placed to meet the note or bill. But if the maker or acceptor has sustained any loss by the omission of the holder to make such application for payment at the place appointed, it is matter of defence to set up plea and proof. But it is added, as this question does n9t necessarily arise in this case, we do not mean to be understood as expressing any decided opinion upon it, although we are strongly inclined to think, that as against the maker of a note or the acceptor of a bill, no averment or proof of a demand of payment at the place designated would be necessary. The question now before the Court cannot, certainly, be considered as decided by the case of the Bank of the United States v. Smith. But it cannot be viewed as the mere obiter opinion of the judge who delivered the judgment of the Court. The attention of the Court was drawn to the question now before the Court ; and the remarks made upon it, and the authori- ties referred to, show that this Court was fully apprised of the conflict- ing opinions of the English Courts, on the question ; and that opinions contrary to that of the House of Lords, in the case of Rowe v. Young, had been entertained by some of the Courts in this country : and under this view of the question, the Court say they are strongly inclined to 350 PRESENTMENT OF BILLS AND NOTES. adopt the American decisions. As the precise question is now presented by this record, it becomes necessary to dispose of it. It is not deemed necessary to go into a critical examination of the English authorities upon this point ; a reference to the case in the House of Lords, which was decided in the year 1820, shows the great diversity of opinion entertained by the English judges upon this question. It was, however, decided, that if a bill of exchange is accepted, payable at a particular place, the declaration in an action on such bill against the acceptor, must aver presentment at that place, and the averment must be proved. The Lord Chancellor, in stating the question, said this was a very fit question to be brought before the House of Lords, because the state of the law, as actually administered in the Courts, is such, that it would be infinitely better to settle it any way than to permit so con- troversial a state to exist any longer. That the Court of King's Bench has been of late years in the habit of holding, that such an acceptance as this is a general acceptance : and that it is not necessary to notice it as such in the declaration, or to prove presentment, but that it must be considered as a matter of defence ; and that the defendant must state himself ready to pay at the place, and bring the money into Court, and so bar the action by proving the truth of that defence. On the con- trary, the Court of Common Pleas was in the habit of holding, that an acceptance like this was a qualified acceptance, and that the contract of the acceptor was to pay at the place ; and that as matter of pleading, a presentment at the place stipulated must be averred, and that evi- dence must be given to sustain that averment ; and that the holder of the bill has no cause of action unless such demand has been made. In that case the opinion of the twelve judges was taken and laid before the House of Lords, and will be found reported in an appendix to the report of the case of Rowe v. Young (2 Brod. & Bing. 180). In which opinions all the cases are referred to in which the question had been drawn into discussion ; and the result appears to have been, that eight judges out of the twelve sustained the doctrine of the King's Bench on this question ; notwithstanding which the judgment was reversed. It is fairly to be inferred from an act of Parliament passed immedi- ately thereafter, 1 and 2 Geo. IV., ch. 78, that this decision was not satisfactory. By that act it is declared that " after the 1st of August, 1821, if any person shall accept a bill of exchange payable at the house of a banker or other place, without further expression in his acceptance, such acceptance shall be deemed and taken to be, to all intents and purposes, a general acceptance of such bill. But if the acceptor shall, M'GETTDEE V. BANE: TT. 8. BANK V. SMITH: ETC. 351 in his acceptance, express that he accepts the bill payable at a banker's house or other place only, and not otherwise or elsewhere ; such accep- tance shall be a qualified acceptance of such bill ; and the acceptor shall not be liable to pay the bill, except in default of payment, when such payment shall have been first duly demanded at such banker's house or other place."(l) In most of the cases which have arisen in the English Coui'ts, the suit has been against the acceptor of the bill ; and in some cases a dis- tinction would seem to be made between such a case and that of a note when the action is against the maker, and the designated place is in the body of the note. But there can be no solid grounds upon which such a distinction can rest. The acceptor of a bill stands in the same rela- tion to the drawee, as the maker of a note does to the payee ; and the acceptor is the principal debtor, in the case of a bill, precisely like the maker of a note. The liability of the acceptor grows out of, and is to be governed by' the terms of his acceptance, and the liability of the maker of a note grows out of, and is to be governed by the terms of his note ; and the place of payment can be of no more importance in the one case than in the other. And in some of the cases where the point was made, the action was against the maker of a promissory note, and the place of payment designated in the body of the note. The case of Nichols V. Bowes, 2 Campbell, 498, was one of that description decided in the year 1810 ; and it was contended on the trial, that the plaintifif was bound to show that the note was presented at the banking house where it was made payable. But Lord Ellenborough, before whom the case was tried, not only decided that no such proof was necessary, but would not sufi'er such evidence to be given ; although the counsel for the plaintifi" said he had a witness in Court to prove the note was pre- sented at the banker's the day it became due ; his Lordship alleging that he was afraid to admit such evidence, lest doubts should arise as to its necessity. And in the case of Wild v. Renwards, 1 Campbell, 425, note, Mr. Justice Bayley, in the year 1809, ruled that if a promissory note is made payable at a particular place, in an action against the maker, there is no necessity for proving that it was presented there for payment. The case of Saunderson v. Bowes, 14 East, 500, decided in the King's Bench in the year 1811, is sometimes referred to as containing a differ- ent rule of construction of the same words when used in the body of a promissory note, from that which is given to them when used in the ac- ceptance of a bill of exchange. But it may be well questioned, whether (1) Bayley on Bills, 200, note. 352 PRESENTMENT OP BILLS AND NOTES. this use warrants any such conclusion. That was an action on a prom- issory note by the bearer against the maker. The note, as set out in the declaration, was a promise to pay on demand at a specified place, and there was no averment that a demand of payment had been made at the place designated. To which declaration the defendant demurred ; and the counsel in support of the demurrer referred to cases where the rule had been applied to acceptances on bills of exchange ; but con- tended that the rule did not apply to a promissory note, when the place is designated in the body of the note. Lord Ellenborough, in the course of the argument, in answer to some cases referred to by counsel, ob- served ; those are cases where money is to be paid, or something to be done at a particular time as well as place, therefore the party (defend- ant) may readily make an averment, that he was ready at the time and place to pay, and that the other party was not ready to receive it ; but here the time of payment depends entirely on the pleasure of the holder of the note. It is true Lord Ellenborough did not 'seem to place his opinion, in the ultimate decision of the cause, upon this ground. But the other judges did not allude to the distinction taken at the bar be- tween that case, and the acceptance of a bill in like terms ; but placed their opinions upon the terms of the note itself, being a promise to pay on demand, at a particular place. And there is certainly a manifest distinction between a promise to pay on demand, at a given place, and a promise to pay at a fixed time at such place. And it is hardly to be presumed that Lord Ellenborough intended to rest his judgment upon a distinction between a promissory note and a bill of exchange, as both he and Mr. Justice Bayley had a very short time before, in the case of Nichols v. Bowes, and Wild v. Renwards, above referred to, applied the same rule of construction to promissory notes where the promise was contained in the body of the note. Where the prom- ise to pay on demand at a particular place, there is no cause of action until the demand is made ; and the maker of the note cannot dis- charge himself by an offer of payment, the note not being due until de- manded. Thus we see that until the late decision in the House of Lords in the case of Rowe v. Young, and the act of parliament passed soon thereaf- ter, the question was in a very unsettled state in the English Courts ; and without undertaking to decide between those conflicting opinions, it may be well to look at the light in which this question has been viewed in the Courts in this country. This question came before the Supreme Court of the State of New York, in the year 1809, in the case of Eoden and Slater v. Sharp, 4 m'geuderv. bank: u. s. bank v. smith: etc. 353 Johnson, 183 ; and the Court said the holder of a bill of exchange need not show a demand of payment of the acceptor, any more than of the maker of a note. It is the business of the acceptor to show that he was ready at the day and place appointed, but that no one came to receive the money ; and that he was always ready afterwards to pay. This case shows that the acceptor of a bill, and the maker of a note were considered as standing oh the same footing with respect to a demand of payment at the place designated. And in the case of Wolcott v. Van Santvoord, 17 Johnson, 248, which came before the same Court in the year 1819, the same question arose. The action was against the ac- ceptor of a bill, payable five months after date at the Bank of Utica, and the declaration contained no averment of a demand at the Bank of Utica ; and upon a demurrer to the declaration, the Court gave judg- ment for the plaintiff. Chief Justice Spencer, in delivering the opinion of the Court, observed that the question has been already decided in the case of Foden v. Sharp : but considering the great diversity of opinion among the judges in the English Courts on the question, he took occasion critically to review the cases which had come before those Courts, and shows very satisfactorily, that the weight of authority is in conformity to that decision, and the demurrer was accordingly over- ruled ; and the law in that state for the last thirty years, has been con- sidered as settled upon this point. And although the action was against the acceptor of a bill of exchange, it is very evident that this circum- stance had no influence upon the decision ; for the Court say that in this respect the acceptor stands in the same relation to the payee, as the maker of a note does to the endorsee. He is the principal, and not a collateral debtor. And in the case of Caldwell v. Cassady, 8 Cowen, 271, decidecl in the same Court in the year 1828, the suit was on a promissory note payable sixty days after date at the Franklin Bank in New York ; and the note had not been presented or payment demanded at the Bank : the Court said, this case had been already decided by this Court in the case of Wolcott v. Van Santvoord. And after noticing some of the cases in the English Courts, and alluding to the con- fusion that seemed to exist there upon the question, they add : that whatever be the rule in other Courts,. the rule in this Court must be considered settled, that where a promissory note is made payable at a particular place on a day certain, the holder of the note is not bound to make a demand at the time and place by way of a condition precedent .to the bringing an action against the maker. But if the maker was ready to pay at the time and place, he may plead it, as he VOL. I.— 23 354 PEESENTMENT OF BILLS AND NOTES. would plead a tender in bar of damages and costs by bringing the money into Court. It is not deemed necessary to notice very much at length the various cases that have arisen in the American Courts upon this question ; but barely to refer to such as have fallen under the observation of the Court, and we briefly state the point and decision thereupon, and the result will show a uniform course of adjudication, that in actions on promissory notes against the maker, or on bills of exchange, where the suit is against the maker in the one case, and acceptor in the other, and the note or bill made payable at a specified time and place, it is not neces- sary to aver in the declaration, or prove on the trial, that a demand of payment was made in order to maintain the action. But that if the maker or acceptor was at the place at the time designated, and was ready and offered to pay the money, it was matter of defence to be pleaded and proved on his part. The case of Watkins v. Crouch and Co., in the Court of Appeals of Virginia, 5 Leigh, 522, was a suit against the maker and endorser, jointly, as is the course in that state upon a promissory note like the one in suit. The note was made payable at a specified time, at the Farmers' Bank, at Richmond, and the Court of Appeals, in the year 1834, decided, that it was not necessary to aver and prove a presen- tation at the bank and demand of payment in order to entitle the plaintiff to recover against the maker ; but that it was necessary in order to entitle him to recover against the endorser; and the President of the Court went into a very elaborate consideration of the decisions of the English Courts upon the question ; and to show that upon common law principles, applicable to bonds, notes and other contracts for the pay- ment of money, no previous demand was necessary, in order to sustain the action, but that a tender and readiness to pay must come by way of defence from the defendant ; and that looking upon the note as com- mercial paper, the principles of the common law were clearly against the necessity of such demand and proof, where the time and place were specified, though it would be otherwise where the place, but not the time was specified; a demand in such a case ought to be made: and he examined the case of Sanderson v. Bowes, to show that it turned upon that distinction, the note being payable on demand at a specified place. The same doctrine was held by the Court of Appeals of Maryland in the case of Bowie v. Duval), 1 Gill & Johnson, 175 ; and the New York cases, as well as that of the Bank of the United States v. Smith, 11 Wheaton, 171, are cited with approbation, and fully adopted; and the Court puts the case upon the broad ground, that when the suit is against u. s. BANK V. smith: ETC. 355 the maker of a promissory note, payable at a specified time and place, no demand is necessary to be averred, upon the principle that the money to be paid is a debt from the defendant, that it is due generally and universally, and will continue due, though there be a neglect on the part of the creditor to attend at the time and place to receive or demand it. That it is matter of defence on the part of the defendant to show that he was in attendance to pay, but that the plaintiff was not there to receive it ; which defence generally will be in bar of damages only, and not in bar of the debt. The case of Ruggles v. Patton, 8 Mass. Rep., 480, sanctions the same rule of construction. The action was on a pro- missory note for the payment of money, at a day and place specified ; and the defendant pleaded that he was present at the time and place, and ready and willing to pay according to the tenor of his promises, in the second count of the declaration mentioned, and avers that the plain- tiff was not then ready or present at the bank to receive payment, and did not demand the same of the defendant, as the plaintiff in his decla- ration had alleged : the Court said this was an immaterial issue and no bar to an action or promise to pay money. So also in the State of New Jersey the same rule is adopted. In the case of Weed v. Houten, 4 Halstead, 189, the Chief Justice says : " The question is whether in an action by the payee of a promissory note payable at a particular place and not on demand, but at time, it is necessary to aver a presentment of the note and demand of payment by the holder at that place, at the maturity of the note. And upon this question he says, I have no hesitation in expressing my entire concurrence in the American decisions, so far as is necessary for the present occasion ; that a special averment of presentment at the place, is not necessary to the validity of the declaration, nor is proof of it necessary upon the trial. This rule, I am satisfied, is most conform- able to sound reason, most conductive to public convenience, best supported by the general principles and doctrines of the law, and most assimilated to the decisions, which bear analogy more or less directly to the subject." The same rule has been fully established by the Supreme Court of Tennessee, in the cases of M'Nairy v. Bell, and Mulhovin v. Hannum, 1 Yerger, 502, and 2 Id. 81, and the rule sustained and enforced upon the same principles and course of reasoning upon which the other cases referred to have been placed. And no case, in an American Court, has fallen under our notice, where a contrary doctrine has been asserted and maintained. And it is to be observed, that most of the cases which have arisen in this country, where this question has been drawn into 356 PRESENTMENT OF BILLS AND NOTES. discussion, were upon promissory notes, where the place of payment was, of course, in the body of the note. After such a uniform course of decisions for at least thirty years, it would be inexpedient to change the rule, even if the grounds upon which it was originally established might be questionable; which, however we do not mean to intimate. It is of the utmost importance, that all rules relating to commercial law should be stable and uniform. They are adopted for practical pur- poses, to regulate the course of business in commercial transactions ; and the rule here established in well calculated for the convenience and safety of all parties. The place of payment in a promissory note, or in an acceptance of a bill of exchange, is always a matter of arrangement between the parties for their mutual accommodation, and may be stipulated in any manner that may best suit their convenience. And when a note or bill is made payable at a bank, as is generally the case, it is well known that, ac- cording to the usual course of business, the note or bill is lodged at the bank for collection; and if the maker or acceptor calls to take it up when it falls due, it will be delivered to him, and the business is closed. But should he not find his note or bill at the bank, he can deposit his money to meet the note when presented, and should he be afterwards prosecuted, he would be exonerated from all costs and damages, upon proving such tender and deposit. Or should the note or bill be made payable at some place other than a bank, and no deposit could be made, or he should choose to retain his money in his own possession, an offer to pay at the time and place would protect him against interest and costs, on bringing the money into Court; so that no practical inconvenience or hazard can result from the establishment of this rule, to the maker or acceptor. But, on the other hand, if a presentment of the note and demand of payment at the time and place, are indispensable to the right of action, the holder might hazard the entire loss of his whole debt. The judgment of the Court below is accordingly affirmed, with costs. It is a general principle, that to fix the liability of the drawer of a bill or endorser of a bill or note, tbere must be a legal presentment of the instrument to the acceptor or maker, or demand of payment from Lira, on the day on which the instrument is payable ;(1) [And it seems to be admitted that when the present- (1) See Magruder v. The Union Bank of Georgetown, 3 Peters, 87; The Juniata Bank v. H.ile and another, 16 Sergeant & Rawle, 157, Ac. M'GEDDEBV. bane: U. S. BAISTEV. SMITH: ETC. 357 ment is made at the proper place, the acbuowledgraent of a person there that he is the maker is prima facie evidence that he is so.] ( 1 ) But the principle is now well established, of substituting due diligence., as a legal presumption, in the place of an actual demand ;(2) [and in Connecticut at least, the averment in the declaration of due presentment is sustained by facts amounting to a legal excuse for non-presentment.] (2) And what constitutes due diligence, under the circumstances of the case, is a question of law;(B) and where the facts are undisputed it is a question of law exclusively. (4) Although a note or bill has been endorsed long after it was due, there must still be a demand, and notice of default, in order to charge the endorser, because a note or bill though over-due continues to be negotiable ; Dwight v. Emerson, 2 New Hampshire, 159 ; Berry v. Robinson, 9 Johnson, 121 ; Greely v Hunt, 21 Maine, 455; Kirlcpatrick v. McGullough, 3 Humphreys, 171; Adams's Admr. V. Torhert, 6 Alabama, 865, 867 ; and see Sturtevant v. Ford, 4 M. & Gr. 101.(5) The endorsement of a note or bill over-due is a new bill drawn at sight, and demand must be made within a reasonable time ; Paterson v. Tod <& Lemon, 22 Fenna. State, 433 : (where the law is well stated and some con- fusing dicta brushed away.) (6) In South Carolina, however, the rules as to due diligence, applied to notes and bills endorsed when over due, are not quite the same as those applicable in ordinary cases : demand and notice are not dis- pensed with, but only such diligence is necessary, according to the circumstances of the case, that the endorser suffers no injury through the neglect; in other words, the only penalty of neglect, is a responsibility for the injury which it actually occasions to the endorser, and the question of reasonable diligence is always a fact for the jury. (7) Where a note is made, jointly and severally, by two or more, not co-partners, a demand upon all was held to be necessary, in Union Bank of Weymouth & Bra.intree v. ^\''llUs, Metcalf, 504, 511, and held not to be necessary, in Harris v. Clark and another, 10 Ohio, 5, 9. There is probably a difference between a joint, and a joint and several note; upon the former no doubt a demand must be made on all ; but in the case of the latter, the refusal of any one to pay, on presentment, is a default. There are some circumstances which excuse a presentment, altogether, being themselves, in law, equivalent to a default. One of them is whore the maker or drawee has absconded before the maturity of the instrument; in which case, notice of that fact is equivalent to notice of demand and refusal, (8) [However, in a recent English decision. Sands and others v. Clarke, 8 Manning, Granger & Scott (65 E. C. L.) 751, where in the case of a note payable at a certain (1) Hunt V. Maybee, 2 Selden, 266. (2) Roberts v. Mason, 1 Judge's Alabama, 374, 377; The Windham Bank v. Norton and a!., 21 Connecticut, 219. (3) Davis V. Herrick, 6 Ohio, 55, 66; Wheeler and another v. Field, 6 Metcalf, 290, 295. (4) Bennet v. Young, 18 Penna. State, 262. (6) Leavitt v. Putnam, 1 Sandford, 202. (6) See Bishop i'. Dexter, 2 Connecticut, 419; Colt v. Barnard, 18 Pickering, 260; Branch Bank at Montgomery, use, &e. v. Gaffney, 9 Alabama, 153, 160. (7) Chadwick v. Jeffers, 1 Richardson, 397 ; Gray v. Bell, 2 Id. 67; 3 Id. 71. (8) Putnam et al. c Sullivan et al., 4 Massachusetts, 45 ; Gilbert v. Dennis, 3 Metcalf, 495. 499; Duncan v. M'Cullough, 4 Sergeant & Rawle, 480: Lehman v. Jones, 1 Watts & Sergeant, 126. 358 PBESENTMENT OF BILLS AND NOTES. place, at No. 11 Old Slip; the declaration stated that, "when the said pro- missory note became due, to wit., on, &c., the plaintiffs were ready and willing in due manner to present the said note to the defendant, at the said No. 11 Old Slip, for payment, and then and there to demand of the defendant payment of the said note, and the plaintiffs would have duly presented the same to the de- fendant, and demanded payment thereof accordingly, but the defendant was then absent from, and not to be found at No. 11 Old Slip, and had then clan- destinely departed and absconded from thence, without leaving or having left any effects at the said place, or any means or provision there for the payment of the said note, nor were there any effects of the defendant at the said No. 11 f. Old Slip, nor any means or provision there for payment of the said note, and the defendant did not pay the said note when it became due, &c., it was held, that the declaration failed to disclose a cause of action, by reason of the note not having been presented according to its exigency, and no sufficient legal excuse being shown for the omission ] Another exception is that established in Magruder v. Bank of Wanhhigton ; which is, that if the maker or drawee has moved his residence into another jurisdiction after making, or acceding to, the instrument; that is to say, has moved his residence out of the state or kingdom in which it was at the time when he became a party to the instrument, the necessity of a presentment is excused , and this is confirmed in lie id v. Morrisnn, 2 Watts & Sergeant, 401, 406; Wlieeler and anoiher v. Field, 6 Metealf, 290; and Gist v. Lyljrand, 3 Ohio, 307, 319. But in Wheeler and anoiher v. Field, it is doubted whether if the maker's new residence in another state be adjoining or near to his former resi- dence, demand should not be made at the new residence ; and the rule in Ma- gruder V. Bank of Washington, is there qualified by the important condition, that, in the case of a removal out of the state, there must still be a demand at the maker's last place of residence, or due diligence to find it; and see Central Bank V. Allen, 16 Maine, 41, 44. In Gist v. Lyhrand, however, it is said to be a clear consequence of the decision in Magruder v. Bank of Washington, that a demand at any other place is dispensed with, and that the fact of removal commits the endorser, and dispenses with all demand, unless a particular place be appointed for the payment of the note in the note itself: and this is supposed to be the true view of the rule in Magruder v. Bank of Washington. It is to be under- stood, however, that that rule relates only to a removal of the residence of the party out of the jurisdiction, and that a mere personal absence, however pro- tracted, does not fall within it; if, therefore, the maker of a note has gone upon a sea-voyage, but the residence of his family continues to be in the st^te, a demand at bis usual place of business, or at the family residence, is neces- sary. (1) But if the maker of a note is a seafaring man, who has no residence or place of business in the state, and is at sea, when payment becomes due, no demand is required. (2) But where the holder was told at the time the endorse- ment was given, that the maker was a transient person, and his residence unknown, this was held not to be enough to dispense with an effort to find him and make a demand. (3) If the maker or acceptor is dead before the instru- ment becomes payable, the holder should make inquiry for his personal repre- (1) Bonnie v. Walker, 7 New Hampshire, 199 ; ■\yhittier v. Graffaca, 3 Greenleaf, 82. (2) Moore v. Coffield, 1 Devereux, 247. (3) Otis V. Hussey, 3 New Hampshire, 346. M'GRtTDER V. BANK: U. S. BANK V. SMITH: ETC. 359 sentative, if there is one, and present the instrument to him at maturity for payment. (1) Some general rules have been laid down for determining the sufficiency of a presentment. With regard to the day on which demand must be made ; a note or bill pay- able at a time certain must be presented on the last day of grace; a demand either before or after that day is insufficient to charge the endorser. (2) When days of grace are allowed, and the last of them is Sunday, the fourth of July, or other public holiday, the note or bill is payable the day before; although an instrument without days of grace, if the day on which the debt falls due is a holiday, is not payable until the next day. (3) If, however, the nominal day of maturity should be Sunday, or a holiday, the days of grace are -not thereby diminished; the instrument is due on the third day after. (4) By the general law merchant, a bill or note is demandable on the third day of grace, but if the established usage of the place where the instrument is payable, or of the bank at which it is payable, or deposited for collection, be to make demand on the fourth or other day, the parties to the note will be bound by such an usage. (5) Bills of exchange, payable on demand, or at sight, or after sight, must be pre- sented within a reasonable time, in order to charge the drawer or endorser :(6) and in some cases, bills of exchange payable on demand, have been placed on the same footing as checks, in regard to the time of presentment ; and it hag been said to be the general rule, subject to variation from circumstances, that when the parties reside in the same place, the bill should be presented, the day it is received, or the day after, and when payable in a different place from that in which it is negotiated, should be sent forward by mail, on the same or the next succeeding day, for presentment, but much, it is agreed, depends upon the circumstances of the case; (7) but in some courts, bank-checks, even when pay- (1) Grower v. Moore, 25 Maine, 16, 17. (2) Howe V. Bradley, 19 Maine, 31, 34 ; Leavitt v. Simes, 3 New Hampshire, 14, 16; Farmers' Bank of Maryland v. Duvall, 7 Gill & Johnson, 79, 89; Piatt v. Eads, 1 Blackford, 81 ; The Montgomery Co. Bank v. The Albany City Bank, 8 Barbour's S. Ct., 397. [In McClain v. Rutherford, 1 Hempstead (Arkansas), 48, there is a dictum to the effect, that the custom of merchants as to days of grace does not apply as between the maker and payee of a promissory note, and that it is only when endorsed that the custom applies. This is probably under an Arkansas statute. If stated as a principle of the law merchant generally, it is, I presume, wrongly stated.] (3) Salter v. Burt, 20 Wendell, 205 ; Staples and another v. Franklin Bank, 1 Metcalf, 43, 47; Lewis v. Burr, 2 Caines' Cases, 195 ; Hansom v. Mack, 2 Hill's N. Y., 588, 592 ; Anonymous, note, Id., 378; Sheldon v. Benham, 4 Id. 129, 132; Barlow et al. o. The Planters' Bank, 7 Howard's Mississippi, 129 ; Offut v. Stout's Ad'rs., 4 J. J. Marshall, 332. (4) Wooley v. Clements, 11 Alabama, 220. (5) See American note to Wigglesworth v. Dallison, 1 Smith's Leading Cases, 5th American edition, 681-689 ; Cookendorfer v. Preston, 4 Howard's Supreme Court, 317 ; see Dabney v. Campbell et als., 9 Humphreys, 680. (6) Robinson v. Ames, 20 Johnson, 146, 151; Aymar v. Beers, 7 Cowen, 705, 709; Dnmont V. Pope, 7 Blackford, 367, 368; Daniels v. Kyle and Barnett, 5 Georgia, 245. (7) Dicta in Mohawk Bank v. Broderick, 13 Wendell, 133, 135 ; Smith v. Janes, 20 Wendell, 192, 194; Little v. Phoenix Bank, 2 Hill's N. Y., 425, 430; probably overruling dicta in Mohawk Bank v. Broderick, 10 Wendell, 306, 307; and in Gough v. Staats, 13 Id. 649, 651; see the Bridgeport Bank v. Dyer, 19 Connecticut, 136, 140. 360 presextjiejStt of bills and notes. able at a future day, have been held to be different from bills of exchange ;(1) though in others they are held to be the same things. (2) As between the holder and the drawer of a check, a demand at any time before suit will be sufdoient, unless before presentment the drawee has in some way been injured by the holder's laches. (3) A promissory note payable on demand, or without any appointment as to time, is due immediately ; and in order to render the endorser liable must be presented within a reasonable time, whether it be pay- able with or without interest ;(4) and whenever it is presented, immediate notice, that is, notice by the next convenient mail, must be given to the endorser. (5) So if a note is endorsed when over duo, a demand must be made in a reasonable time,(6) and immediate notice given. Reasonable time under the circumstances, is a question for the court : but no absolute rule has yet been fixed : in Seaver v. Lincoln, 21 Pickering, 267, 268, it is said by Shaw, C. J., that one of the most difficult questions, presented for the decision of a court of law, is, what shall be deemed a reasonable time, within which to de- mand payment of the maker of a note payable on demand, in order to charge the endorser; it depends upon so many circumstances to determine what is a reasonable time in a particular case : in Camp v. Clark, Trustee, 14 Vermont, 887, S91, Redfield. J. had supposed that the question of reasonable time of presentment, in regard to the liability of the endorser was not identical with the question of reasonable time in respect to a negotiation in discharge of equities; he had supposed that to affect an endorser, demand must be made immediately, that is, on the same, or the next day, when the parties reside in the same town, and in the due course of communication by mail, when they re- side in different places. (7) But the authorities do not warrant any fixed limit : seven days, (8) have been held within the range of a reasonable time ; and five inonths(9) beyond it, in Massaohussetts, by statute, (10) sixty days are now allowed. These rules as to the time of demand do not apply to bank notes or bank post notes. (11) As to the time of day at which presentment must be made ; a note or bill may be demanded at any reasonable hour on the last day of grace ; an instru- ment without days of grace is not due till the whole day of payment has expired : but an instrument with days of grace, is, for the purpose of fixing the commercial liabilities of the parties, due on demand on the last day of (1) See In the Matter of Brown, 2 Story, 503 ; and Alexander v. Burchfleld, 7 M. & Gr., 1061. (2) Brown v. Newell, 4 Selden, 190 ; overniling S. C, 5 Sandford, 326, and denying In the Matter of Brown ; Bradley i-. Hamilton's adm'r, 5 Harrington, 305. (3) Daniels v. Kyle & Burnett, 1 Kelly, 304 ; Hoyt v. Seeley, 18 Connecticut, 353, 360. (4) Sice ». Cunningham, 1 Cowen, 397; Perry ji. Green, 4 Harrison, 61 ; See Lockwood v. Crawford, 18 Connecticut, 362, 372. (5) Brenzer v. Wightman, 7 Watts & Sergeant, 264; Colt v. Barnard, 18 Pickering, 260. (6) Sanborn v. Southard, 25 Maine, 409; Rice «. Werson, 11 Metealf, 401). (7) And see Fortner v. Parham & Gibson et al., 2 Smedes & Marshall, 161, 163. (8) Seaver v. Lincoln, 21 Pickering, 267, 8. (9) Sice V. Cunningham, 1 Cowen, 397. (10) Act of 1839, c. 121. (11) Key V. Knott and wife, 9 Gill & Johnson, 342, 364; and see The Eulton Bank u. The Phoenix Bank, 1 Hall, 502, 677. M'GEUDEE V. BANE: U. S. BANK V. SMITH: ETC. 361 grace. (1) Presentment should be made during the proper business hours; and these, it is said, except when the paper is, due from or at a bank, generally range through the Tphole day, down to bedtime in the evening :(2) a demand at the dwelling, between eleven and twelve o'clock at night, when the maker of the note was in bed, has been held to be too late; (3) and a demand at eight in the morning too early. (4) But when a note or bill is payable at a banking house, or other place where it is known that business is transacted only during certain hours of the day, the effect of the contract is, that the note shall be paid at some time during the usual bank hours at such bank, and there is no default until the close of such bank hours ;(5) on the other hand, a demand cannot be made after such hours ;(6) about the close of banking hours is the proper time ;(7) still, if the presentment be made after seasonable hours, and there be some one there to answer, and the bill be then dishonoured, as if, after bank hours, the note or bill be presented there, and the cashier refuses payment because no funds have been provided, or for other cause which would have operated as a dishonour of the bill if it had been presented before, it is sufficient to charge the endorser.(8) As to the manner of presentment; regularly, by the law merchant, a bill or note must be exhibited or shown at the time the demand is made;(9) if the note is not lost, exhibition of a copy will not be sufficient ;(10) but if the origi- nal is lost, demand upon a copy will be good;(ll) but a tender of indemnity must be made at the same time. (12) A demand through the post-office, there- fore, is insufficient, as is remarked in Magruder v. Banh of Washington, and is confirmed in Stuckert v. Anderson, 3 Wharton, 116. In Tredick v. Wendell, 1 New Hampshire, 80, it was decided, that when a note was left at a bank, and the maker resided close to the bank, a letter sent to his residence, inform- ing him that the note was in the bank, and requesting payment, the person not being at his residence, was sufficient : but unless the note, by its terms, or by consent, or usage, was payable at the bank, that decision is unsound, for the maker may have left orders that notes presented at his house should be paid, but not that letters sent there should be opened. Usage, it seems, of a place (1) Whitwell V. Brigham, 19 Pickering, 11?, 122. (2) Cayuga County Bank v. Hunt, 2 Hill's N. Y., 635, 638; De Wolf v. Murray, 2 Sandford's S. Ct., 166, 170. (3) Dana v. Sawyer, 22 Maine, 244. (4) Lunt V. Adams, 17 Id. 230. (5) Church ti. Clark, 21 Pickering, 310 ; Bank of the United States «. Carneal, 2 Peters, 543, 649. (6) Dana v. Sawyer, 22 Maine, 244. (7) Harrison v. Crowder, 6 Smedes & Marshall, 464, 473. (S) Flint V. Rogers, 15 Maine, 67 ; Commercial and Eailroad Bank v, Hamer et al., 7 Howard's Mississippi, 448; Cohea v. Hunt et al., 2 Smedes k Marshall, 227. (9) Musson et al. v. Lake, 4 Howard's Supreme Court, 262 ; Farmers Bank of Maryland v. Duvall, 7 Gill & Johnson, 79, 89 ; The Bank of Vergennes v. Cameron, 7 Barbour's S. Ct., 144, 146. (10) Freeman et al. v. Boynton, 7 Massachusetts, 483, 486. (11) Hinsdale v. Miles, 6 Connecticut, 331. (12) Smith V. Rockwell, 2 Hill's N. Y., 482. 362 PRESENTMENT OF BILLS AND NOTES. or bank, may dispense with the presenting or exhibiting of the note.(l) And, in general, the agreement or consent of the promisor, or of all the parties, may substitute a particular mode of demand for that which ordinarily is required by law;(2) but probably the consent of the promisor could not dispense with demand altogether, as concerns the rights of the endorser. (3) As to the place of demand ; when the note or bill is not payable at some particular city or town, and the maker or acceptor personally is not found, demand may be made either at his residence, or at his place of business during business hours :(4) presentment at the dwelling will certainly be sufficient, if the maker or acceptor be not a banker. (5) Going to the party's place of busi- ness in business hours, if he is not found there, is enough, and dispenses with further efforts ;(6) and so in respect to the party's dwelling or lodging house,(7) it was suggested that it might, perhaps, be further necessary to make inquiry in the neighborhood. If the maker's residence or place of business is not known, there must be due diligence to discover it; and a demand in the street will, ordinarily, not be sufficient. (8) Where two partners, makers of a note, had failed, and given up their place of business, which was let to strangers, and inquiry was made there and not elsewhere, and the notary was informed that they had gone out of town, when in fact one of them resided in the town, this was held not to be a sufficient demand or inquiry. (9) When a note or bill is expressed to be payable at a particular place, a de- mand there is always sufficient to charge the endorser. (10) [Where a bill is drawn on a firm, as W. M. & Co., at a particular number and street, as at " 263 Washington street. New York," the presentment should be at their place of business, as presumable from such address, or at the residence of either of the firm.](ll) If it is payable in a particular town, and the maker's or acceptor's residence is elsewhere, the maker is not bound to make demand elsewhere than in that town; (12) the mere fact, however, of a note being dated at a particular place, does not make it payable there, so as to excuse a demand of the maker, personally, or at his residence elsewhere; (13) even if his residence be in another (1) Whitwell et al. v. Johnson, 17 Massachusetts, i49 ; Shone v. Wiley, 18 Pickering, 558; Maine Bank ti. Smith, 18 Maine, 99; Gallagher v. Roberts, 2 Fairfield, 489. (2) State Bank v. Hurd, 12 Massachusetts, 172; North Bank v. Abbott, 13 Pickering, 465, 470; Gilbert v. Dennis, 3 Metcalf, 495, 496, 499, 605. (3) See Lee Bank v. Spencer and another, 6 Metcalf, 308. (4) Sussex Bank v. Baldwin & Shipman, 2 Harrison, 488, 502 ; Winans v. Davis, 3 Id., 277, 282, 283. (6) Stivers & Page v. Prentice & Weissinger, 3 B. Monroe, 461, 463. (6) Shed V. Brett and Trustees, 1 Pickering, 413 ; Fields v. Mallett, 3 Hawks, 465; Br. Bank at Decatur v. Hodges, 7 Alabama, 42, 44 ; and see Buxton v. Jones, 1 Manning & Granger, 83. (7) Belmont Bank v. Patterson, 17 Ohio, 78, 94; but in Ellis's Administrator v. Commercial Bank of Natchez, 7 Howard's Mississippi, 294, 303. (8) King V. Holmes, 1 Jones, (Pennsylvania,) 456; and see The Seneca County Bank v. Neass, 18 Barbour, 293. (9) Granite Bank v. Ayers, 16 Pickering, 392, 394; see Buxton v. Jones, 1 Manning & Granger, 83. (10) Evans v. St. John, 9 Porter, 187, 193 ; McClane v. Fitch, &o,, 4 B. Monroe, 599. (11) Otsego County Bank v. Warren, 18 Barbour, 291. (12) Smith V. Little, 10 New Hampshire, 526. (13) Lightner v. Wills, 2 Watts & Sergeant, 140. m'geudee v. bank: u. s. bank v. smith: etc. 363 state or a foreign country. (1) If a note or bill is by its terms payable at a bank, and on the day of its maturity, the bank is the holder of the note, or if the holder or his agent makes demand there, or leaves the instrument at the bank and authorizes the bank to receive payment and give up the note, and the maker or acceptor neither offers payment, nor has funds in the bank appropri- ate to the payment of the bill or note, which is to be ascertained by an inspec- tion of his bank-account, no other presentment or demand is necessary, and the bill or note is dishonoured. (2) But whether there are funds provided or not, the note must be at the bank at maturity, for otherwise there can be no demand, constructive or actual ;(3) but if a note is the property of the bank where it is payable, it will be presumed that it was at the bank, and it will be for the endorser to prove that the maker called at the bank to pay the note. (4) If a note be payable " at either, or at any of the banks at B.," it was said in North Bank v. Abbott, 13 Pickering, 465, 468, that it is considered payable at either or any which the holder may appoint, and that it is not payable at a place certain, until the holder has given notice to the maker in which bank the note is deposited ; but this is denied, and probably with reason, in Jackson v. Packer, 13 Connecticut, 243, 358, Page v. Webster, 15 Maine, 249, 253, and Langley v. Palmer, 30 Id. 467, 469, where it is held that the note may be presented at either or any of the banks indicated. When a note, not, on its face, payable at a bank, is placed for collection in a bank at which the custom is to demand payment at the counter, and not personally, such usage may affect the maker, if, expressly or impliedly, he is consenting to it; but not if he does not know of the usage, and cannot be considered as having acquiesced in it. (5) In regard to the necessity of a demand at a particular place, when a note or bill is made or accepted payable there, the decisions in this country differ from those in England. In England, in the case of a promissory note made payable at a particular place named in the body of the note, the decisions have been uniform in all the courts, that in a suit against the maker, and of course, a fortiori, in a suit against the endorser, it is necessary to aver in the declara- tion, and to prove, a presentment at that place ;(6) and the omission of suchan averment is bad after verdict ;(7) but where the place of payment is appointed, not in the body of the note, but by a memorandum at the foot of it, such alle- gation is not irecessary.(8) It appears, also, to be certain, that upon a bill of exchange drawn payable at a particular place, and accepted as drawn, a demand (1) Taylor v. Snyder, 3 Denio, 146 ; Gilmoro v. Spies, 1 Barbour, 159, 164, affirmed on error, Spies V. Gilmore, 1 Comstock, 322. (2) U. S. Bank v. Smith ; Bank of the U. S. v. Carneal, 2 Peters, 543, 549 ; Hildeburn v. Turner, 5 Howard's Supreme Court, 69, 71; Jenks u. The Doylestown Bank, 4 Watts &, Ser- geant, 505, 511 ; Phipps and others v. Chase, 6 Metoalf, 491; Gillett v. Averill, 3 Denio, 85, 88; State Bank v. Napier, 6 Humphreys, 270; Roberts v. Mason, 1 Judges' Alabama, 374, 375; Bank of the State of So. Car. v. Flagg, 1 Hill's So. Car., 177, 179 ; Allen i7. Smith's Adm'r, 4 Harrington, 234, 237. (3) Shaw V. Beed, 12 Pickering, 132; Lee Bank v. Spencer and ano^er, 6 Metealf, 308. (J) Folger V. Chase, 18 Pickering, 63, 66. (5) Lewis V. The Planters' Bank, 3 Howard's Mississippi, 267; but see Bank of Washington V. Triplett and Neale, 1 Peters, 25, 34. (6) Sanderson v. Bowes, 14 East, 500; Spindler v. Grellett, 1 Exchequer, 384. (7) Emblin v. Dartnell, 12 Meeson & Welsby, 830. (8) Williams v. Waring, 10 Barnewall & Cresswell, 2. 364 PEESENTMENT OF BILLS AND NOTES. at that place is in England considered necessary as a condition precedent to charge the acceptor or drawer or endorser : per Lord Eldon, in Eoiae v. Youvg, 2 Broderip & Bingham, 165, 170. And for the case where a bill has been drawn generally, and has been accepted payable at a particular place, the law was settled to be the same, by the House of Lords, in Eowe v. Young, in 1820. Previously to that decision, the Common Pleas had considered that such an acceptance was conditional, and that a presentment at the appointed place must be averred in pleading, in a suit against the acceptor, and proved if put in issue, in order to establish a right of action in the holder; while the King's Bench had hold that such an acceptance did not operate to render a demand at the place, a condition precedent to a right of action against the acceptor, and therefore that a demand at that place need not be averred in the declaration, nor proved, but yet that the defendant might show, by way of defence against damages and costs, in the nature of a plea of tender, that he was ready to pay at the time or place appointed, and must thereupon bring the principal sum into court. In Emce v. Young, the Court of King's Bench, on demurrer to a declaration upon a bill accepted payable at a particular place, where there was not an averment of presentment at that place, had given judgment for the plaintiff; but upon error, though of the twelve judges who gave their opinion, eight, among whom were Bayley, J., and Abbott, C. J., approved of the prac- tice of the King's Bench, the House of Lords, by the advice of Lord Eldon, Chancellor, and Lord Kedesdale, reversed the judgment, and established the practice of the Common Pleas as the law of England. Shortly after the sta- tute 1 & 3 Geo. IV., c. 78 (sometimes called Serj. Onslow's Act), enacted, that an acceptance " payable at the house of a banker or other place," should be deemed a general acceptance, but an acceptance " payable at a banker's house or other place only, and not otherwise or elsewhere," shall be deemed a quali- fied acceptance, on which the acceptor shall not be liable unless there has been default after due demand at the place. And since this act, it has been decided in England that a bill di-awn payable at a special place, and accepted as drawn, need not be presented at that place, in order to charge the acceptor, such bill being within the purview of the act; Selhy v. Eden, 3 Bingham, 611; Fayler V. Bird, 6 Barnewall & Cresswell, 531 ; though it must, to charge the drawer or endorser; Gihh v. Mather, 2 Crompton & Jarvis, 254; 8 Bingham, 214. The Irish courts, however, have diifered from the English, and have held that such a bill is not affected by the statute, but that there must be a presentment • at the place, to charge even the acceptor ;(1) but they are clearly wrong in sup- posing that Gibb V. Mather had overruled Selb^/ v. Eden, and Fayle v. Bird,. The settlement of the point discussed in Rowe v. Young, seems, in reality, to depend upon the question whether the acceptance of a bill, or an acceptance qualified as to the place of payment only, imports in law an antecedent or inde- pendent consideration to the extent of the sum expressed in the bill ; Abbott, C. J., and Bailey, J., in Rowe v. Young, both asserting it, and Lords Eldon and Redesdale both denying it, as a general proposition. To illustrate the principles connected with this subject, three cases may be considered. One where the declaration is against the acceptor and contains the common money counts only, and a bill with the acceptance qualified as to the place of payment, (1) Roach V, Johnston, Hays & Jones, (Irish Exchequer,) 246. M'gRUDER v. bank: U. .S bank v. SMITH: ETC. 365 is oflfered in evidence ; the point perhaps has not expressly been decided, but it seems to be impossible to say that such an acceptance would not be admissi- ble and sufficient evidence. ■ A second case is, where the suit is against the acceptor, but the declaration is specially on the bill : in this, two questions may be made ; first, the general one, whether when suit is brought upon such an obligation as implies an antecedent debt, though the obligation be qualified as to the place of payment, it is necessary in a declaration upon the instrument to take notice of such qualification by averring a presence or a demand at that place ; and second, the particular question, whether an acceptance qualified as to place of payment does imply an antecedent debt. The reasonings of Bay- ley, J., appear to determine the former of these questions in the negative, and the general principle of law on this point as deduced by him seems not to have been denied by any one in that case : and as to the second question, if such an acceptance would of itself be evidence under the common money counts, as in the first case, it seems that it should be determined in the affirmative ; and the law, it is believed, does certainly imply that every commercial acceptance, absolute as to the liability to pay, is an acceptance for value; the theory of a bill of exchange being that it is drawn on funds, and the acceptance being, in legal presumption, an admission of them.(l) A third case is where action is brought against the drawer or endorser of a bill, accepted with a qualification as to the place of payment : in this case the liability is collateral, and strictly contingent or conditional, and must be made out entirely upon the bill, and a demand at the appointed place, and non-payment, must be alleged in the decla- ration in order to show that the acceptor was in default ; and so is the opinion of Bayley,, J. in Howe v. Young : and though it might be said that the draw- ing or endorsing of a bill implies an antecedent debt, and that a recovery may be had on the money counts, or some of them, by a holder against the drawer or endorser, yet strictly that is not so; it is the dishonour of a bill that is evi- dence in law of a consideration remaining with the drawer or endorser for the benefit of the holder; the implication of a debt does not arise till then; and under the money counts, if the bill itself is relied on as evidence, presentment according to the tenor of the bill, and every other fact necessary to show a default in the acceptor and notice of it to the drawer or endorser, must be proved. In this country, the law is settled in almost exact accordance with the views expressed by Bayley, J., in Eowe v. Young, and in accordance, it is believed, with clear and settled principles. There is no difference between a promissory note, and the acceptance of a bill of exchange, qualified as to the place of pay- ment; dicta'm Wallace v. McConnell. In both cases, when the instrument is payable at a specified time and place, presentment or demand at that place need not be alleged in the declaration, nor proved, in a suit against the maker or acceptor : but if the maker or acceptor was at the place designated, personally or by his agent, with funds ready for the payment of the demand, this may be shown by way of defence, not in bar of the debt, but in discharge of damages and costs, and will have the efiect of a tender, and on such defence being made, (1) See Griffith v. Reed, 21 Wendell, 502, 604, 507 J Luff v. Pope, 5 Hill's N. T., 413, 417 ; Byrne, Ryan &, Co. v. Schwing, 6 B. llonroe, 199, 203. 866 PRESENTMENT OF BILLS AND NOTES. the money must be brought into court ;(1) and the plea of readiness at the time and place, in order to be good, must state, according to Lyon v. Wdliam- son, not only that the party was ready to pay the money at the time and place named, but that he has ever since been ready there to pay the same, and that he brings the money into court : and though in Conn v. Gano, 1 Ohio, 483, it was held by a majority of the court, that while a demand at the place need not be alleged, yet if alleged it must be proved, yet the opinion of the minority of the court who held that the whole averment is immaterial, and surplusage, which may be struck out, and therefore need not be proved as laid, is plainly correct, as indeed has been expressly decided in Remiclc v. 0' Kyle el al., 12 Maine, 340. But in a suit against the drawer or endorser of a bill drawn, or note made, payable at a particular place, demand at the appointed place must be averred in the declaration and proved, (2) In Louisiana, however, the prin- ciple is established that when a note is made payable at a particular place, there must be a demand there, as a condition precedent before any suit.(3) The decisions cited above as to the liability of a maker or acceptor, were mostly upon notes payable at a specified time ; and there are dicta that if the note be payable on demand, at a specified place, no action will lie against the maker or acceptor without a demand : see dkta in cases cited below. (4) But these dicta appear to have proceeded on the supposition that the circumstance of the note being payable on demand in Sanderson v. Bowes, 10 East, 500, Dickinson v. Bowes, 16 Id. 110, S. G. on error, 5 Taunton, 30, was in some degree the ground of the decisions in those cases; but though a passing dictum of Lord EUenborough in the first of those cases might seem to point at that distinction, yet a perusal of the opinions delivered in liowe v. Young, especially (1) Wallace v. McConnell (of course OTerruling Picquet i\ Curtis, 1 Sumner, 478) ; Carley v. Vance, 17 Massacliusetts, 389 j Payson v, Whitcomb, 15 Pickering, 212, 216; Eastman v. Fifiold et al., 3 New Hampshire, 333 ; Otis v. Barton, 10 Id. 433 ; Woleott v. Van Santvoord, 17 Johnson, 248; Caldwell ». Cassidy, 8 Cowen, 271 ; Nazro v. Fuller, 24 Wendell, 374; Green v. G-oings, 7 Barbour's S. Ct., 653, 655 ; Eldred v. I-Iawes, 4 Connecticut, 466; Jackson v. Packer, 13 Id. 343, 358; Bond v. Storrs, Id. 412, 416; Bacon v. Dyer, 12 Maine, 19; Lyon v. William- son, 27 Id. 149 ; Gammon u. Everett, 25 Id. 66; Weed ti. Van Houten, 4 HalsteJ, 189; Filler t). Beckley, 2 Watts & Sergeant, 458 ; Middleton . Getohell, Penna. State, 506. (.3) Phillips V. Poindexter, 18 Alabama, 588; Stainback v. Bank of Virginia, 11 Grattan, 267; and see Gardner v. Bank of Tennessee, 1 Swan, 420. (4) Coleman v. Smith, 26 Penna. State, 255. (6) Hunt V. Maybee, 2 Seldan, 267. 380 FORM OF NOTICE OF DISHONOUR. sented for payment to " one of the firm of W. C. & Co." and payment demanded. The notice should state the name of the person on whom the demand was made, and show in some way that he was one of the firm : and shew that the demand was made at some proper place ; as at the number and street designated in the bill or at the dwelling house of one of the partners. The Otsego County Bank y. Warren, 18 Barb., 290] If suflficient notice of dishonour is given, it need not be expressly said that the holder looks to the endorser for payment; that is implied in giving no- tice ;(1) [neither is it necessary that the party giving the notice should know, as a fact, that the bill has been dishonoured. If he be a party to the bill and his notice unequivocally asserts as a fact, the dishonour, it is enough, even though he gave it on speculation. You cannot inquire into the state of his mind, or his means of knowledge; Jenj^'n^s v. i?o6erts,4[Ellis& Blackburn, (82 E.C.L.) 615 ] The sufiiciency of notice in respect to the information which is given, is a question of law for the court. (2) II. With regard to the description of the note ; any description will be sufficient, which, under all the circumstances, so designates and distinguishes the note, as reasonably to leave no doubt in the mind of the endorser, what note was intended. (3) j^n immaterial variance in the description will not vitiate it : the variance must be such, that, under the circumstances of the case, the notice conveys no sufficient knowledge to the endorsers of the identity of the instrument : a variance which is obviously a mistake of the copyist, and could not raise any real doubt, under all the facts of the case, as to the identity of the instrument referred to, would be immaterial : and it is settled that a notice defective in itself may be aided by external facts, and that they should be con- sidered in determining the sufficiency of the notice; (4) and as in such cases facts are involved, the question becomes one for the jury. (5) And it was formerly held in New York, and still is in some other states, that it is in all cases a question for the jury, whether the endorser has been misled as to the particular note which has been the subject of dishonour; (6) but in several casep(7) it is established that the sufficiency of a written notice is for the court, where there is no dispute about the facts; and in Crocker v. Getchell, 23 Maine, 392, (1) King V. Biokley, 2 Queen's Bench, 419; Miers v. Brown, 11 Meeson & Welsby, 372; Caunt V. Thompson, 7 C. B., 400, 410; Bank of the United States v. Carneal, 2 Peters, 543, 653; Warren v. Gilman, 17 Maine, 360, 365; Ransom v. Mack, 2 Hill's N. T., 588, 593; Ham- ilton V. Smith, Longfleld & Townsend, (Irish Exchequer), 100. (2) Dole V. Gold, 5 Barbour's S. Ct. 490, 492. (3) Gilbert i;. Dennis, 3 Metoalf, 495, 498; Bank of Alexandria v. Swann, 9 Peters, 34, 46; and see Shelton )/. Braithwaite, 1 Meeson & Welsby, 436; Stockman v. Parr, 11 Id., 809; Youngs V. Lee, 18 Barbour, 189 ; Cook v. Litchfield, 5 Sandford, 340. (4) Dennistown et al. v. Stewart, 17 Howard, 606; Cayuga County Bank v. Warden, 1 Com- stook, 414, 418 ; confirmed on appeal, 2'SeIden, 19 ; Tobey v. Lennig, 2 Harris, 483. (5) McKnight ». Lewis, 6 Barbour's S. Ct., 682, 686. (6) Bank of Rochester v. Gould, 9 Wendell, 279 ; Smith v. Whiting, 12 Massachusetts, 6 ; Rowan et al. ■). Odenheimer et al., 6 Smedes & Marshall, 44; Kilgore v. Bulkley, 14 Connecti- cut, 363, 393. (7) See particularly Ransom v. Mack, 2 Hill's N. Y., 588, 594, grounded upon Remer v. Dow- ner, 23 Wendell, 620; S. C, 21 Id., 10: and in Wynn v. Alden, 4 Denio, 163, 164, in Craw- ford V. The Branch Bank of Mobile, 7 Alabama, 206, 215, Saltmarsh v. Tuthill, 13 Id., 390, 401, and Piatt v. Drake, 2 Douglass, 296, 300, and Routh et al. v. Robertson, 11 Smedes &, Marshall, 383, 388. MILLS V. BANK OP UNITED STATES. 381 398, the same practice appears to have been adopted. (1) In Carter v. Brad- ley, 19 Maine, 62, 65, also it was said, that if the matter is to be determined by inspection of the paper alone, it is more proper that it should be settled by the judge, but if other and extrinsic facts enter into the evidence in relation to the endorser's being misled, the question may be referred to the jury ; and this agrees with the opinion of Buller, J., in Macbeath v. Haldimand, 1 Term, 182, in regard to the construction of letters generally. [In Dennisiown et al. y. Steward, 17 Howard's S. C, 608, a suit against a drawer of a bill generally, the name of the acceptor as written across the bill, was "And. E. Byrne :" but the accepter's name was stated in the notice of non-payment, which professed to contain a copy of the bill to be " Chas. Byrne," held no misdescription, there being many other particulars to identify the bill and to show that the error was a mistake of the copyist. And the court in this case observed that "a lost bill may be protested when the notary has been furnished with a sufficient descrip- tion, as to date, amount, parties, &c., to identify it."] In Crocker v. Getcliell, a notice dated December 29, stated to the endorser that a note dated 25 Au- gust, payable in four months, became due that day and is protested for non- payment, which was held not to be a misdescription, because the error in stating the time when it became due, could be discovered from the other parts of the description, and would not mislead. But in Ransom v. Mack, 2 Hill's N.Y., 588, where a note was dated April 1, and was payable three months after date, and the notary sent a notice, dated the 4th of July, that he had demanded payment on tliat day, though in fact he had made a demand on the third, which was the proper day, the court, overruling Ontario Bank v. Fetrle, '6 Wendell, 456, and perhaps conflicting with Smith v. Whiting, 12 Mass., 6, held the notice bad, since while it stated that a demand had been made, it showed that it was made at such a time as to discharge the endorser : and Ransom v. Mack has been fol- lowed and confirmed by Routh et al. v. Robertson, 11 Smedes & Marshal), .382, 390; but see the distinction in Tobey v. Lenniy, 2 Harris, 483. In Ross et als. V. Planters' Bank, 5 Humphreys, 335, the notary, in the copy of the note sent with the protest, made a mistake in the date ; instead of 22d November, 1843, putting 22d November, 1844, an impossible date, that time not being then arrived ; and it was held that the mistake in the notarial record, might be dorrected by the evidence of the notary before the jury, and the court said that in such cases it took care to leave the question properly to the jury, as to the identity of the instrument, and as to whether the parties, notwithstanding the mistake, had substantial notice as to what security it was intended to fix their liability upon, by the notarial protest furnished them. Notice may legally be given by the holder, or his agent, or other person in whose possession the bill lawfully is for payment; (2) or by any party to the bill, if given in due time;(3) the party entitled as a holder to sue upon the bill may therefore avail himself of such notice given by any party to the bill, as [having] fixed the liability of the party noticed to the party giving the notice, (1) And see Mainer v. Spurlock and another, 9 Robinson, 161; Dennistown et al. !•. Stewart,, 17 Howard's Supreme Court, G08. (2) Woodthorpe v. Lawes, 2 Meeson & AVelsby, 109 ; Follain and others o. Duprc and others, 11 Robinson, 456, 470; Harris v. Robinson, 4 Howard's Supreme Court, 336, 346, (3) Chapman v. Keane, 3 Adolphua A Ellis, 193; Stafford v. Yates, 18 Johnson, 327; Glas- gow V. Pratte, 8 Missouri, 336; Glasscock v. Bank of Missouri, Id., 443, 445. 6b2 TIME OF NOTICE OF DISHONOUR. and entitled him to sue, upon taking up the bill;(l) but notice given by a mere stranger will not be availing. (£) JNotice when given by an agent in possession of the bill need not state at whose request it is given, nor who is the owner of the bill. (3) In Hamilton v Smith, Longfiekl & Townsend (Irish Exchequer), 100, service of the protest of a promissory note was decided to be suiBcient notice, though it did not state from whom it proceeded. Where a person in giving notice as the agent of one party to a bill, by mistake stated in the notice that it was given by him as agent of another party to the bill, it was decided that the mistatement of the name of the person on whose behalf notice was given would not wholly avoid the notice, but would place the party giving it in the same situation, as to the party to whom it was given, as if the statement had been correct; and therefore if notice by the person from whom it was erroneously stated to proceed would have been good, such erroneous notice would be avail- ing, but if that party had been discharged by laches, or would have had no right of action on the bill against the party noticed, if he had taken up the bill, such notice would not charge the person to whom it was sent. (4) OF THE TIME \YHEN NOTICE OF THE DISHONOUR OF A KOTE OR BILL MUST BE GIVEN. LENOX ET AL. v ROBERTS. In the Supreme Court of the United States. FEBRU.iRY TERM, 1817. [reported 2 WHEATON, 373-877.] A demand of payment of a promissory note must be made of tJie maker, on the last day of grace ; and where the endorser resides in a different jjlace, notice of the default of the maker should he put into the post- office early enough to be sent by the mail of the succeeding day. This was a suit in chancery, brought by the appellants against the respondent in the Circuit Court of the District of Columbia, for the county of Alexandria; the complainants, in their bill, stated that the president, directors, and company of the Bant of the United States, by their deed, assigned to Thomas Willing, John Perot, and James S. fl) Jordan v. Ford & Dickinson, 2 English, 416, 421 ; see Harrison v. Ruscoe, 15 Meeson A Welsby, 231. (2) Walker v. Bank of the State of Missouri, 8 Missouri, 704, 707; The Juniata Bank v. Hale and another, 16 Sergeant & Rawle, 157, 160. (3) Woodthorpe v. Lawes, 2 Meeson & Welsby, 109; Harris v. Robinson, 4 Howard's Su- preme Court, 336, 346. (4) Harrison v. Ruscoe, 15 Meeson A Welsby, 231, 236. LENOX V. ROBERTS: BANK V. SWANN. 833 Cox, their executors, administrators, and assigns, all and singular the mortgages, judgments, suits, bonds, bills, notes, debts, securities, con- tracts, goods, chattels, money and effects, whatsoever, due or belonging to the bank ; together with all the ways, means and remedies, for the recovery of the same, upon the especial trust in the deed expressed. That Thomas Willing, John Perot, and James S. Cox, afterwards as- signed to the complainants, all and singular the debts included in the deed to them. The bill further stated, that one Elisha Janney, made and delivered to the defendant five promissory notes, dated and payable at Washington, and for the following sums, to wit: one note for 1,000 dollars, payable in sixty days from the 22d February, lhi09, &c. ; amounting in the whole, to 4,020 dollars. That the defendant dis- counted the said notes in the Branch Bank of the United States, at Washington, about the times they bear date, and endorsed the same at Washington.. That Janney did not pay the notes when they became due, and that he was insolvent when the notes became due. That the notes being made and dated in the county of Washington, were subject to the laws prevailing in Washington county, and the defendant bound to pay, on failure of Janney to pay. The complainants claimed these debts as projn'ietors thereof ; and called on the defendant especially to state whether Janney was not insolvent when the notes became due; whether the said notes were not duly protested for non-payment, and the defendant in due time notified thereof, and did not attempt to secure himself by some lien on Janney's property. The bill concluded by praying a decree against the defendant, for the amount of said notes. The defendant, in his answer, did not admit that the complainants were duly authorized to recover and receive the debts due to the bank ; but he admitted that the notes were by him endorsed in blank, and delivered to Janney, but contended that they were not obtained to be discounted in the Bank of the United States ; nor were discounted for the benefit of the defendant, but for the use and benefit of Elisha Jan- ney, who received the money from the bank. And that it was well known to the president and directors of the bank, that the said notes were endorsed by the defendant for the accommodation of the said Elisha Janney, without any value being received by the defendant. The de- fendant's answer farther alleged, that due and legal notice was not given by him of the non-payment of the notes ; that no demand of payment of the notes was made of Elisha Janney, by the bank ; that the notes were all dated at Alexandria ; that Elisha Janney, on the 29th of May, con- veyed all his property to Richard M. Scott, in trust for the payment of his debts, including the debt to the bank. 384 TIME OF NOTICE OP DISHONOUE. There was some contrariety of evidence as to the time when payment of the notes was demanded of the maker, and the time when notice to the defendant as endorser, who resided in Alexandria, was put into the post-of5ce at Washington. The bill was dismissed by the Court below, on which the cause was brought by appeal to this Court. The cause was argued by Mr. Swann, for the appellants, and by Mr. Lee, for the respondent. Mr. Chief Justice Marshall delivered the opinion of the court. The Court will not give any opinion whether any action can be main- tained at law upon any of the promissory notes in the record, by an assignee who does not claim the same by an endorsement upon the notes. For, in this case, there is no specific assignment of these notes ; the only assignment is a general assignment, in trust, of all the property of the late Bank of the United States, and, as the act of incorporation had expired, no action could be maintained at law by the bank itself. Under these circumstances, the court is clearly of opinion that a suit may be maintained in equity against the other parties to the notes. Another question arises in the cause, whether the endorsers have had due notice of the non-payment by the makers ? As there is some con- trariety of evidence in the record, the court will only lay down the rule. And it is the opinion of the court, that a demand of payment should be made upon the last day of grace, and notice of the default of the maker be put into the post-office early enough to be sent by the mail of the succeeding day. Decree reversed. LEN'OX V. ROBERTS: BANK V. SWANN. 385 THE PRESIDENT, DIRECTORS, AND COMPANY OP THE BANK OF ALEXANDRIA, plaintiffs in error v. THOMAS SWANN. In the Supreme Court of the United States. JANUARY TERM, 1835. [reported from 9 PETERS, 33-47.] The law does not require the utmost possible diligenae in the holder in giving notice of the dishonour of a note. All that is required is ordi- nary reasonable diligence ; and what shall constitute reasonable dili- gence ought to be regulated with a view to practical convenience, and the usual course of business ; and is a question of law. Notice need not be sent on the day of the dishonour. It will be in due time, if sent by the mail, the next day after the dishonour of the note. This suit was brought in the circuit court of the District of Columbia, for the county of Alexandria, upon a promissory note made by Humphrey Peake, and endorsed by the defendant in error. The note bore date on the 23d day of June, 1829, and was for the sum of $1400, payable sixty days after date at the bank of Alexandria. On the last day of grace the note was duly presented, and demand of payment made at the bank, and protested for non-payment. On the next day notice thereof was sent by mail to the endorser, who resided in the city of Washington ; but in the notice the note was described as for $1457. In all other respects the description was correct. In the margin of the note was set down in figures 1457 ; the note had in fact been discounted at the bank, as and for a note of $1457 ; and from the 5th day of February, 1828, (the date of a note for which the one now in question was a re- newal,) down to the day of the trial of the cause below, there had been no other note of Humphrey Peake endorsed by the defendant, discounted by the bank, or placed in the bank for collection or otherwise. According to the course of the mail from Alexandria to the city of Washington, all letters put into the mail before half-past eight o'clock, p. M., at Alexandria, would leave there some time during that night, and would be deliverable at Washington the next day, at any time after eight o'clock, A. M. Upon the trial the jury found a special verdict, setting forth the above stated facts, upon which the court gave judgment for the defend- voL. I. — 25 386 TIME OF NOTICE OF DISHONOUE. ant, and the case came, upon a writ of error, before the Supreme Court, where two questions arose : 1. Whether notice of the dishonour of the note was given to the endorser in due time ? 2. Whether such notice contained the requisite certainty in the description of the note ? Mr. Justice Thompson delivered the opinion of the Court. The general rule, as laid down by this court in Lenox v. Roberts, 2 Wheaton, 373, is, that the demand of payment should be made on the last day of grace, and notice of the default of the maker be put into the post-office early enough to be sent by the mail of the succeeding day. The special verdict in the present case finds, that according to the course of the mail from Alexandria to the city of Washington, all letters put into the mail before half-past eight o'clock, p. M., at Alexandria, would leave there some time during that night, and would be deliverable at Washington the next day, at any time after eight o'clock, a. M. ; and it is argued on the part of the defendant in error, that as demand of payment was made before three o'clock, p. M., notice of the non-pay- ment of the note should have been put into the post-office on the same day it was dishonoured, early enough to have gone with the mail of that evening. The law does not require the utmost possible diligence in the holder in giving notice of the dishonour of the note ; all that is required is ordinary reasonable diligence ; and what shall constitute reasonable diligence ought to be regulated with a view to practical con- venience, and the usual course of business. In the case of the Bank of Columbia v. Lawrence, 1 Peters, 583, it is said by this court to be well settled at this day, that when the facts are ascertained, and are undis- puted, what shall constitute due diligence is a question of law : that this is best calculated for the establishment of fixed and uniform rules on the subject, and is highly important for the safety of holders of com- Uiercial paper. The law, generally speaking, does not regard the fractions of a day ; and although the demand of payment at the bank was required to be made during banking hours, it would be unreason- able, and against what the special verdict finds to have been the usage of the bank at that time, to require notice of non-payment to be sent to the endorser on the same day. This usage of the bank corresponds with the rule of law on the subject. If the time of sending the notice is limited to a fractional part of a day, it is well observed by Chief Justice Hosmer, in the case of the Hartford Bank v. Stedman and LENOX V. EOBEETS: BANK V. SWANN. 387 Gordon, 3 Connecticut, 495, that it will always come to a question, how swiftly the notice can be conveyed. We think, therefore, that the notice sent by the mail, the next day after the dishonour of the note, was in due time. The next question is, whether, in the notice sent to the endorser, the dishonoured note is described with sufficient certainy. The law has prescribed no particular form for such notice. The object of it is merely to inform the endorser of the non-payment by the maker, and that he is held liable for the payment thereof. The misdescription complained of in this case, is in the amount of the note. The note is for 1400 dollars, and the notice describes it as for the sum of 1457 dollars. In all other respects the description is correct : and in the margin of the note is set down in figures 1457, and the special verdict finds that the note in question was discounted at the bank, as and for a note of 1457 dollars ; and the question is, whether this was such a variance or misdescription as might reasonably mislead the endorser as to the note, for payment of which he was held respon- sible. If the defendant had been an endorser of a number of notes for Humphrey Peake, there might be some plausible grounds for contending that this variance was calculated to mislead him. But the special verdict finds that from the 5th day of February, 1828, (the date of a note for which the one now in question was a renewal,) down to the day of the trial of this cause, there was no other note of the said Humphrey Peake endorsed by the defendant, discounted by the bank, or placed in the bank for collection or otherwise. There was, therefore, no room for any mistake by the endorser as to the identity of the note. The case falls within the rule laid down by this court in the case of Mills v. The Bank of the United States, (ante, page 368,) that every variance however immaterial, is not fatal to the notice. It must be such a variance as conveys no sufficient knowledge to the party of the par- ticular note which has been dishonoured. If it does not mislead him, if it conveys to him the real fact without any doubt, the variance eaanot be material, either to guard his rights or avoid his responsibility. In that case, as in the one now before the court, it appeared that there was no other note in the bank endorsed by Mills ; and this the co-urt considered a controlling fact, to show that the endorser could not have been misled by the variance in the date of the note, which was the mis- description then complained of. The judgment of the circuit court is accordingly reversed, and the cause sent back with directions to enter judgment for the plaintiffs, upon the special verdict by the jury. 388 TIME OP NOTICE OF DISHONOUR. " Perhaps Lord Mansfield never conferred so great a benefit on the commer- cial world," said Lord Denman,(l) "as by his decision of Tindal v. Brown, 1 Term, 167, where his perseverance compelled them,, in spite of themselves, to submit to the doctrine of requiring immediate notice as a matter of law." That the reasonableness of notice, in respect to time as well as to other matters, is, in all cases where the facts are ascertained, a question for the court, and not for the jury, is now a settled principle in the commercial law of all the States in this country. (2) In Alabama, at an early period, it was held(3) that the strict commercial rules as to notice were not applicable there, and that the reasonable- ness of notice was a question for the jury; but in 1828, by statute, Aiken's Digest, 829, the remedy on bills of exchange, and on notes payable in bank, was ordered to be governed by the rules of the law merchant, as to days of grace, protest, and notice ; and since then, the legal rule has always been recog- nised. (4) [Upon bank checks, unless on their face payable at a future day, there are no days of grace and notice [if due) is due accordingly. Where payable on their face at a future day, they are subject to days of grace, and have the incidents as to notice of ordinary bills of exchange (5) The dictum or declaration in Barnet v. Smith, 10 Foster, 256, that " a bank check is substantially the same as an inland bill of exchange, and in general is governed by the law applicable to bills of exchange and promissory notes," — is true in reference to the points which was before the court in that case : but the question of ' days of grace ' was not before the court. See Bradley v. Hamilton, 5 Harrington, 505.] (1) Furze v. Sharwood, 2 Q. B., 415, S. C, 2 Sale & Davison, 129. (2) Hussey e. Freeman, 10 Massachuasets, 84, 86; Whitwell et al. v. Johnson, 17 Id., 449, 45.3 ; Nash v. Harrington, 2 Aikens, 9, 11 ; Haddock v, Murray, 1 New Hampshire, 140 ; Halsey o. Salmon, Pennington, 916 ; Sussex Bank v. Baldwin &, Shipman, 2 Harrison, 488 ; Jones v. Warden, 6 Watts &, Sergeant, 399, (overruling Gurly v. The Gettysburg Bank, 7 Sergeant &, Rawle, 324) ; Philips v. M'Curdy, 1 Harris & Johnson, 187, 190 ; Pen's Ex'rs ti. Kelly, 2 Hay- wood, 45 ; Duggan ». King, Kioe, 240 ; Dodge et al. u. Bank of Kentucky, 2 Marshall, 610, 616 ; Noble et al. v. Bank of Kentucky, 3 Id., 262. (3) Brahan & Atwood v. Ragland, Minor, 85. (4) Foster v. McDonald, 3 Alabama, 34; Tarver's Ex'rs ii. Boykin, 6 Id., 353; Brown v. Tur- ner, 11 Id., 752, 755 ; Smyth v. Strader et al., 4 Howard's Supreme Court, 405, 415. (5) Brown v. Newell, 4 Selden, 190, overruling S. C, 5 Sandford, 326, and denying'In the matter of Brown, 2 Story, 602. [It is probable that the exact legal meaning of a " check," aa distinguished from a " draft," or " bill of exchange," has not yet been fully decided. By a " check," in common parlance, is meant a simple order to pay the bearer, or to the order of a drawee, a certain sum named on the paper. They are usually drawn on some " lank" by name, in the drawer's place of residence, and are meant to be payable at once, on sight, or demand, though no such words as " at sight," or " on demand," are expressed on the face of the paper. They are confined to the fewest words possible : never containing, at the beginning, " be pleased," or "please;" nor at the end, "without further advice," or "by your obedient servant," or any like words usually found on bills of exchange. At the same time, it is proba- ble that none of these characteristics, except the one of being payable at sight, are essential characteristics of checks : for a check is sometimes given on a bank at his place of residence, when the drawer is far away from home. They are sometimes, even now, and formerly gener- ally were, addressed to the "cashier." Their being more respectfully signed, or marked, by a few words of surplusage, more or less, or being more in the/orm of a request than of an order, would probably make no difference. The legal difference between the definitions of " checks" and "bills of exchange," as to this matter of days of grace, would most likely depend on the fact, whether the instrument was by its terms payable or not payable at sight] LENOX V. ROBERTS: BANK V. SWAKN. 389 It is settled, that where the parties reside in the same town, notice given at any time on the next day after the default, is sufficient. (1) When the parties reside in different places, the rule laid down in Lenox v. Roberts, and Bank of Alexandria v. Swann, that notice must be sent by the mail of the succeeding day, is the established rule of every court in the United States, subject to the understanding that the mail of that day goes out at a convenient hour. A different rule, however, is laid down by the learned author of the Commentaries on American Law, who says,(2) that the limitation in Lenox v. Roberts is too strict, and that the party has the whole of the next day for mailing notice, so that if notice is sent by the first mail that goes after the day next to the third day of grace, it is in season, though it be not mailed in season to go by the mail of the day after the default. The English cases cited by the learned author do not sustain this conclusion : In Bray v. Hadwen, 5 Maule & Selwyn, 68, as in Wright v. Shawcross, 2 Barnewall & Alderson, 501, note, the notice having arrived on Sunday, was to be considered as having been received on Monday, and then the party had till next day's post for giving notice : in Geill v. Jeremy & another, 1 Moody & Malkin, 61, no post went out on the day following the day of the default, and on that account the party was allowed the whole of that day for mailing notice, but the rule was declared to require the employment of the " next post after the day" on which notice is received; and in Bawkes v. Salter, 4 Bingham, 715, the bill was dishonoured on Saturday, and the mail left at half-past nine o'clock on Monday, and no doubt it closed before that time ; and this being an unreasonable hour, Best, C. J., expressed himself clearly of opinion that it would have been sufficient if the letter had been put into the post before the mail started on Tuesday morning. In Williams v. Smith, 2 Barnewall & Alderson, 496, 500, the rule established by Lord Tenterden, is, that notice is to be sent by the post of the day following that in which the party receives intelligence of the dishonour. These and other cases have explained and enlarged the dictum of Marius, re- peated in Tindal v. Brown, 1 Term, 167, and Darbishire v. Parker, 6 East, 3, 8, that notice should be sent by the next post ; so as to fix its meaning to be, that notice must go by the post of the next day, which is the next convenient post ; but they have not given the whole of the next day for mailing the notice, or till the post of the third day for sending it, as the learned commentator sup- poses. The English judges say, that each party has an entire day for giving notice ; but their meaning is, that the notice may go by the mail of the next day, and need not be sent by the mail of the same day. The distinguished author of Commentaries on the Law of Bills of Exchange, (Judge Story,) has offered yet another explanation : he expresses the opinion that the holder is entitled to one entire day to prepare his notice, and that, therefore, it will be sufficient, if he sends it by the next post that goes after twenty-four hours from the time of the dishonour (p. 320, note) ; but this suggestion appears to be quite novel and unsupported. The subject is one of great importance; but the (1) Grand Bank v. Blanchard, 23 Pickering, 305 (overruling the dictum in Woodbridge et al. V. Brigham et al., 12 Massachusetts, 403, 404; that notice should be given on the same day); Remington v. Harrington, 8 Ohio, 507, 610; Duggan v. King, Rice, 240, 243; Shrieve and Combs V. Duckham, 1 Littell, 194; Pearson & Co. v. Duckham, 3 Id., 385; Moore v. Somerset, 6 Watts & Sergeant, 262 ; Whittlesey & Stone v. Dean, 2 Aikens, 263. (2) 3 Comm. 106, and note [d) 3d edition. 390 TIME OP NOTICE OF DISHOiSrOUK. American cases are so clear and concordant as to render it quite certain that the views of these eminent writers are somewhat defective in precision. The unquestionable general principle is, that notice must be sent by the next convenient or practicable mail. And in ascertaining what is meant by this, it may be considered as settled that notice need not be mailed on the day of the default, or the day on which notice of it is received : the party need not take any step on that day, but has till a convenient hour on the next day for putting the notice into the post-office. (1) The post that goes out at a convenient hour on the next day, is the conveyance by which notice ought to be sent ; but if the post of that day goes out too early to allow notice to be prepared conve- niently within business hours, then the subsequent post may be employed. And Sundays, and public holidays, as the 4th of July,(2) are to be wholly rejected from the account. (3) In the Federal courts, the rule in Lenox v Roberts, explained in Bank of Alexandria v. Swann, is adopted, also, in Mitchell v. Degrand, 1 Mason, 176, 180, in which it is said that notice must be sent by the next practicable mail ; and in United States v. Barker's Administratrix, 4 Washington, 465, 468, Judge Washington, who says that notice must be given by the earliest practica- ble post after the bill is dishonoured, explains it to mean, that, the letter giving the notice should be put into the office early enough to be sent by the mail of the succeeding day ; and this case was affirmed on error. (4) Indeed, in Ful- lerlon et al. v. The Bank of the United States, 1 Peters, 605, 618, the opinion that notice is in time, if mailed early enough to go by the first mail that goes after the day next to the third day of grace, appears to be directly condemned j and the rule adopted, that notice must go by the mail of the next day, pro- vided there be a mail on that day that does not go out before early business hours. In Massachusetts, the same authority is followed ; and in Whitwell et al. v. Johnson, 17 Massachusetts, 449, 454, it is decided, that the next day is early enough for sending notice, and if there should be two mails a day, whether notice goes by the first or the second of those mails, is immaterial, provided it is put into the post-office early enough to go by a mail of that day ; in Eagle Bank v. Ghapin, 3 Pickering. 180, 183, it is said that notice should be sent the next day or by the next convenient mail, Sundays being thrown out of the account; and in Talbot v. Clark, 8 Id. 51, 54, it is declared that the law is entirely settled there, in England, and in New York, that notice must be sent by the next day*s mail after knowledge of the dishonour of a bill. In New Hampshire, in Carter v Burley, 9 New Hampshire, 559, 570, where the oases are examined, the rule is decided to be, that notice to a prior party, where the parties live in different places, is sufficient if forwarded by the mail of the day following the dishonour, or that on which the endorser receives due intelligence of it, subject to the qualification, that if a party receiving a notice, (1) Bank of Alexandria v. Swann; Hartford Bank v. Stedman & Gordon, 3 Connecticut, 489, 495; Farmers' Bank of Maryland ». Buvall, 7 Gill k Johnson, 79, 92 ; Howard v. Ives, 1 Hill's N. Y., 263, 265 ; Whitwell et al. v. Johnson, 17 Massachusetts, 449, 453. (2) Cuyler t>. Stevens, 4 Wendell, 666. (3) Agnew v. The Bank of Gettysburg, 2 Harris k. GUI, 479, 495 ; Eagle Bank ti. Chapin, 3 Pickering, 180; Burkmyer k Adams v. Whitefor, 6 GiU, 16. (4) 12WheatoD,559. LENOX V. ROBERTS: BANK V. SWAKN. 391 cannot, by the exercise of reasonable diligence, forward notice by the mail of the day following, it will be sufficient if sent by the next; for, in this country, where many of the mails go out at an early hour of the morning, and are some- times closed at an early hour of the evening before, it would be impracticable always to prepare and forward a notice by the mail of next day, where notice was received late in the afternoon or evening; whether, where there are two mails on the next day, the notice may be sent by either, at the party's choice, is left undecided. In Vermont, the cases call for the first mail, or the next post, after the default, using the words in their general commercial accepta- tion. (1) In New York, in Smedes v. Utica Bank, 20 Johnson, 372, 382, the dictum is, that notice must be forwarded on the day of demand, or the day after, and by the next mail : and in Head v. Enys, 5 Cowen, 303, this is construed very strictly; the views expressed in Darhishire v. Parker, 6 East, 3, 10, are approved, and the general rule is declared to be, that notice must be sent hj the next post after the intelligence of the dishonour, subject, undoubtedly, to the qualification that if the post goes out so early after the receipt of the intel- ligence as to render it inconvenient to send by it, it may be sent by the second post ; and although the expressions of the Court might appear to limit the time even more narrowly than was done in Lenox v. Roberts, yet if regard is had to the point decided, it is to be inferred that the case does not require that notice should ever be sent on the same day on which it is received, but that it is in time if it go by the mail of the next day; see Sewally. Russell, 3 Wendell, 276. In Howard v. Ives, 1 Hill's N. Y. 263, the rule is set forth in a very clear and satisfactory manner; there, a bill was refused payment between three and five o'clock, p. m., on Saturday; two mails left daily for the place where the person to whom notice was to be sent, resided; one, closing at 5 J, A. M , and leaving at 7 o'clock, the other closing at 3, p. M., and leaving at 5 o'clock; notice was put into the post-office io time for the mail of 5 o'clock, P. M., on Monday : the Court held this to be sufficient; and said that the holder of a bill is never required to mail notice on the very day of default of payment ; and Sunday is not to be counted ; that then, that the afternoon post on Monday, the morning one having closed before the common hours of business, was the proper conveyance, as being the next practicable or convenient post : it is not necessary, the Court added, to say that in all cases where there are several mails on the same day, the party may elect by which he will send ; but clearly he comes to the mark, when he selects the post which leaves next after the hours of business commence for the day; that is the next practicable or con- venient post. In Maryland,{2) a note had been dishonoured on the 22d of the month; the mail closed at nine o'clock on that evening, and went out at sunrise on the 23d ; the next mail closed at nine o'clock on the evening of the 24th, and left at sunrise on the 25th; the letter containing notice was mailed on the 23d; it was contended that notice should have gone by the early mail of the 23d ; but the court decided that this was not necessary; that that mail was really the (1) Whittlesey and Stone v. Dean, 2 Aikens, 263, 264; Aldis et al. v. Jolinson, 1 Vermont, 136, 140. (2) Farmers' Bank of Maryland v. Duvall, 7 GiU & Johnson, 79. 892 TIME OF NOTICE OF DISHONOUR. mail of the 22d, and that a party is always allowed till the next day to place his letter in the post-office. In Virginia,(l) it is decided that notice should be sent by the next post, each party having a full day to give notice ; and this is applied in that case so as to mean the post that goes out the next day. In Kemtucky,{2) the rule is declared to be settled that when notice goes by mail, it must go by the first mail after the last day of grace is over ; or the mail of the next day after protest.(3) In Ohio, and North and South Carolina, the rule stated in the cases, is, that notice must be sent by the next post, that is, by the post of the next day. (4) In Pennsylvania, it is declared, (5) to be a settled principle of commercial law, that the holder is bound to forward immediate notice, on the day follow- ing the refusal, where there exists no reason to account for the omission to do so ; and in Louisiana, the next mail, or the mail that goes out at a convenient hour on the next day, is declared to be the proper conveyance; (6) and in a late Alahama case, it is said that notice must be mailed the day after the refusal of payment, or by the first mail thereafter. (7) From these authorities, the necessary inference is, that a party has not the whole of the next day to prepare or to mail his notice; but in several of the states, this particular point has been specially considered, and the decisions are in direct opposition to the views expressed in the Commentaries on American Law. In New Jersey,{S) the subject and the cases have been ably examined, and it has been adjudged that evidence which showed merely that notice was mailed on the next day, without indicating whether or not it was in time for the mail of that day, was insufficient. "It would certainly simplify this mat- ter," said the Court, "to lay down the rule that a party has the next day en- tire to prepare and mail his notice, without reference to the time of the depar- ture of the mail. But this would be in violation of the authorities and against the general principle which requires the exercise of at least reasonable dili- gence. Many of the authorities say, the party has an entire day to give the notice ; and so he has, but not an entire day to prepare it. He must give or send his notice on the next day if he can ; if he neglect it, until after the de- parture of the mail, he does not give or send his notice the next day, but in point of fact, the day after the next, or at some other and perhaps more distant day. It is safe therefore to adhere to the rule, that the notice must be sent on (1) Brown & Sons v. Ferguson, 4 Leigh, 37. (2) Dodge et al. v. Bank of Kentucky, 2 Marshall, 610, 616, and Hickman ». Ryan, 5 Lit- tell, 24. (3) This appears to be recognised in Stivers & Page v. Prentice & Weissinger, 3 B. Monroe, 461, Ac. (4) Remington v. Harrington, 8 Ohio, 507 ; Hubbard v. Troy, 2 Iredell's Law, 134 ; Denny V. Palmer, 5 Id., 611, 622 ; Duggan v. King, Rice, 240, 243. (5) Brenzer ». Wightman, 7 Watts & Sergeant, 264. (6) Townaley et al. n. Springer, 1 Louisiana, 122; C(imm6rcial Bank of Natchez v. King and others, 3 Robinson, 243, 214. (7) Brown i'. Turner, 11 Alabama, 752, 754. (8) Sussex Bank v. Baldwin and Shipman, 2 Harrison, 488, 493. LENOX T. EOBEETS: BAKK V. SWANN. 393 the day next after the third day of grace, unless the mail of that day go out at so early an hour as to render it impracticable by the exercise of a reasonable diligence. No precise hour can be named, particularly in the country, where the term " business hours" has a somewhat vague and indefinite meaning. Cases will occasionally arise, where it will become necessary for the court to direct the jury whether due diligence has been exercised, supposing certain facts to be proved. In Maine,(l) a note was dishonoured on the 28th of the month, and notice was put into the post-office on the 29th, but the time of the day when it was put in was not shown; the notice, being produced, was dated the 28th, but post-marked the 30th j the jury inquired from the Judge whether it would be due diligence, to put notice in the post-office at any time on the 29th, and the Judge replied that it would, if put into the office in season to go by the mail on that day; a verdict being found for the defendant, a new trial was moved; but Weston, C. J., examining the cases, approved of the principle of Lenox v. Ro- herts, Smedes v. Ulica Bank, Mead v. Une/s, and Darbishire v. Parl-er, that notice must be sent by the mail of the next day, and sustained the ruling of the Judge below. In Beckwith v. Smith, 22 Id. 125, where the protest stated that notice was mailed at 9 o'clock, a. M., on the next day, it was decided that there should be proof, further, that the letter was placed in the post-office in season to be carried by the mail of the next day after the bill was dishonoured, and as no evidence was given as to the time at which the mail went out, and it was not stated that the letter was in season to be carried by the mail of that day, the protest, of itself, was insufficient evidence. In the case of Beckwith v. St. Croix Man. Co., 2-3 Id. 284, the rule seems to be considered as requiring the next practicable mail ; and though Goodman -t. Norton and Beckwith y. Smith, might seem to require a greater sirictness than has elsewhere been exacted, the recent case of Chick v. Pilhbnry, 24 Maine, 458, after careful examination, adopts the general commercial rule of allowing a convenient time after business hours, or the next day after the dishonour, shall have commenced, to prepare and despatch notice, and decides that where the mail of the follow- ing day went out at six o'clock in the morning, notice mailed on that day between twelve at noon and eight at night was in due time ; and the ordinary qualifications in case of the mail going out unreasonably early on the following day, is therefore received in the courts of that state. In like manner in Mississippi,(2) the rule is decided to be, that notice must, at furthest, be put into the post-office in time to go by the mail of the day next succeeding the protest, if there be a mail which goes on that day, and if not, then by the first mail which goes afterwards ; the holder, it is said, need not put the notice in the office on the same day the note is protested ; but he must on the next day in time for a mail of that day, unless it leaves at an unreason- ably early hour; and Chancellor Kent's enlargement of the time, on the sup- posed authority of the English cases, is expressly condemned. The judicial determination by Mr. Justice Story, in the recent case of Seventh Ward Bank (1) Goodman i'. Norton, 17 Maine, 381. (2) Downs V. Planters' Bank, 1 Smedes A Marshall, 261, 276, and the same point is deter- mined in Deminds et al. ^. Kirkman, Id., 644; Hoopes . Hathaway, 5 Metcalf, 213, 215 ; Palen v. Shartleff, 9 Id., 581 j Smith v. Roach's Ex'r., 7 B. Monroe, 17. (4) Turner t). Leech, 4 Barnewall & Alderson, 461 ; Rowe u. Tipper, 13 C. B. (76 E. C. L.), 249 ; Brown & Sons v. Ferguson, 4 Leigh, 37, 60, 56; Parmer v. Rand, 16 Maine, 463 ; Etting V. The Schuylkill Bank, 2 Barr, 355 j Simpson v, Turney, 5 Humphreys, 419; Whitman and Hubbard v. The Farmers' Bank of Chattahoochie, 8 Porter, 258, 262. (5) United States Bank v. Groddard, 5 Mason, 366; Church v. Barlow, 9 Pickering, 547; Bank of the United States v. Davis, 2 HiU's N. T., 452 ; Crocker v. Getchell, 23 Maine, 392 ; Sussex Bank v. Baldwin and Shipman, 2 Harrison, 488, 491; Poster v. McDonald, 3 Alabama, 34; Gindrat et al. v. The Mechanics' Bank of Augusta, 7 Id., 325, 331 ; Hill v. Planters' Bank, 3 Humphreys, 670; The G-rand Gulf Railroad and Banking Company v. Barnes, 12 Robinson, 128; Ciode V. Bayley, 12 Meeson & Welsby, 51; but see Plaok v. Green, 3 Gill & Johnson, 474, 481. LENOX V. ROBEETS: BANK V. SWANN. 395 bim, he has not till the next day to communicate or transmit it, but must send it forward without loss of time.(l) Care must be taken by the holder that notice is not given too early. It has been repeatedly decided that it may be given on the last day of grace, after de- fault made. (2) In some of the States it has been decided that not only notice of dishonour may be given, but the maker of a note may be sued on the last day of grace, after default, and the drawer or endorser, on the same day, after notice ;(3) but he must of course be careful that the notice has been given before he begins his suit, and prove this on the trial. (4) But the question whether notice of pro- test may be given, is not the same with the question whether suit may be brought, on the last day of grace; and it seems to be more correctly decided in Osborne v. Moncure, 3 Wendell, 170, that though a note is dishonovred if not paid on demand on the last day of grace, yet that the maker cannot be sued on that day, as he has till the last instant of that day for making payment, if he chooses to seek the holder, arid in regard to legal proceedings there are no frac- tions of a day; and this is confirmed in Wilcomie v. Dodge, 3 California, 262; Thotnas v. Shoemaker, 6 Watts & Sergeant, 179; Coleman v. Carpenter, 9 Barr, 178; and Wiggle et al. v. Thomason, 11 Smedes & Marshall, 452; and in Bevan et al. v. Eldridge, 2 Miles, 353, is applied in the case of an endorser. Before suit can be brought against an endorser, there must be a right of action by notice or due diligence ; arid in Massachusetts and Maine it has been decided, that, where the parties live in different places, putting a letter of no- tice seasonably into the post-office is in itself due diligence or constructive notice, and suit may therefore be commenced immediately after the letter is mailed, and without waiting for the notice to be received. (5) In Pennsylvania, how- ever, it has been held that where notice is sent by mail to an endorser, suit cannot be brought against him, before the time when by the regular course of the mail, the notice would reach him. (6) But as to this point, the New Eng- land cases appear clearly to be correct. (1) U. S. V. Barker, 4 Washington, 465 ; S. C, 12 Wheaton, 569 ; S. C, 2 Paine, 340 ; Sewall II. Russell, 3 Wendell, 276; Freeman's Bank v. Perkins, 18 Maine, 292. (2) Burbridge v. Manners, 3 Campbell, 193; Bussard v. Levering, 6 Wheaton, 102 ; Linder- berger v. Beall, Id., 104; Corp v. M'Comb, 1 Johnson's Cases, 328 ; Farmers' Bank of Mary- land ti. Duvall, reillA Johnson, 79, 89; Smith ». Little, 10 New Hampshire, 626, 532; M'Clane V. Fitch, Ac, 4 B. Monroe, 699; Coleman v. Carpenter, 9 Barr, 178; King v. Holmes, 1 Jones, 456. (3) Staples and another v. Franklin Bank, 1 Metoalf, 43 ; Greeley et al. v. Thurston, 4 Green- leaf, 479; Flint v. Rogers, 15 Maine, 67 ; Ammidown v. Woodman, 31 Maine, 682 ; Coleman v. Ewing, 4 Humphreys, 241; Wilson v. Williman, 1 Nott & M'Cord, 440; dictum in Dennie V. Walker, 7 New Hampshire, 199, 201 ; and decision in Manchester Bank v. Fellows, 8 Foster, 314. (4) Manchester Bank v. Fellows, 8 Foster, 314. (6) New England Bank t?. Lewis et al., 2 Pickering, 125 ; Flint v. Rogers, 15 Maine, 67. (6) Smith V. The Bank of Washington, 5 Sergeant & Rawle, 318. 396 MODE OF COMMUNICATING NOTICE. OF THE MEDIUM OP COMMUNICATING NOTICE OF THE DISHONOUR OF NOTES AND BILLS, AND OF THE PLACE TO WHICH NOTICE MUST BE SENT. THE BANK OF COLUMBIA, use op the bank op the united STATES V. LAWRENCE. In the Supreme Court of the United States. JANUARY TERM, 1828. [reported from 1 PETERS, 578-584.] Upon the dishonour of a note, the party whose duty it is to give notice, is hound to use due diligence in communicating such notice. It is not required of him to see that the notice is brought home to the party. When the facts are undisputed, due diligence is a question of law. If the parties reside in the same city or town, notice may be delivered at either the endorser's dwelling-house, or his place of business : if they live in different places, notice sent by the mail to the post-office nearest to the endorser, or to that a^ which he is in the habit of receiving his letters, will be sufficient, whether it reaches him or not. If an endorser reside at such a distance from the city or town in which the holder lives as to render the employment of a special messenger unreasonably burdensome, and if the post-office of the holder's resi- dence is the nearest to the endorser, and is that at which he usually receives his letters, a notice addressed to him at that place, through the post-office, will be good. This case came before the Court upon a writ of error to the Circuit Court of the District of Columbia. The defendant was sued as endorser of a promissory note made by Joseph Mulligan, and payable sixty days after date, at the Bank of Columbia. The making and endorsing the note, and the demand of payment, having been proved, the only question upon the trial was touching the manner in which notice of non-payment was given to the endorser ; no objection being made to the sufficiency of notice in point of time. It appeared that the banking house of the plaintiffs was in George- town, at which place the note was dated ; that some time before the note fell due, the defendant had lived in the city of Washington, and carried on the business of a morocco leather dresser, keeping a shop and living THE BANK OF COLUMBIA V. LAWEENCE. 897 in a house of his own in the said city ; That about the year 1808 he sold his shop and stock in trade and relinquished his business, and re- moved with his family to a farm in Alexandria county, within the Dis- trict of Columbia, and about two or three miles from Georgetown ; that the Georgetown post-office was the nearest post office to his place of residence, and the one at which he usually received his letters. The notice of non-payment was put into the post-office at Georgetown, addressed to the defendant at that place. It was proved on the part of the defendant, that at the time of his removal into the country and from that time until after the note in question fell due, he continued to be the owner of the house in Washington, where he formerly lived : and which was occupied by his sister-in-law, Mrs. Harbaugh ; that he came frequently and regularly every week, and as often as two or three times a week, to this house, where he was employed in winding up his former business and settling his accounts, and where he kept his books of account, and where his bank notices, such as were usually served by the runner of the bank on parties who were to pay notes, were some- times left, and sometimes at a shop opposite to his house ; and where also his newspapers and foreign letters were left ; that his coming to town and so employing himself was generally known to persons having business with him ; that his residence in the country was known to the cashier of the bank ; that there was a regular daily mail from George- town to the city of Washington, and that the defendant's house was situated in Washington, less than a quarter of a mile from Georgetown. Upon this evidence the plaintiffs prayed the Court to instruct the jury, that it was not incumbent on them to have left the notice of the non-payment of the note at the house occupied by Mrs. Harbaugh, as stated in the evidence ; but that it was sufficient, under the circum- stances stated, to leave the notice at the post-office in Georgetown ; which instruction the Court refused to give. The jury found a verdict for the defendant: and on error to this Court the question was whether this notice was sufficient. Mr. Justice Thompson, delivered the opinion of the Court. If it should be admitted, that the defendant had what is usually called a place of business, in the city of Washington, and that notice served there would have been good ; it by no means follows, that service at his place of residence, in a different place, would not be equally good. Par- ties may be and frequently are so situated, that notice may well be given at either of several places. But the evidence does not show that 398 MODE OF COMMUNICATING NOTICE. the defendant had a place of business in the city of Washington, accord- ing to the usual commercial understanding of a place of business. There was no public notoriety of any description given to it as such ; no open or public business of any kind carried on, but merely occasional employ- ment there, two or three times a week, in a house occupied by another person ; and the defendant only engaged in settling up his old business. In this view of the case the inquiry is narrowed down to the single point, whether notice through the post-ofSce at Georgetown was good ; the defendant residing in the country two or three miles distant from that place, in the county of Alexandria. The general rule is that the party whose duty it is to give notice in such cases, is bound to use due diligence in communicating such notice. But it is not required of him to see that notice is brought home to the party. He may employ the usual and ordinary mode of conveyance, and whether the notice reaches the party or not, the holder has done all that the law requires of him. It seems at this day to be vpell settled, that when the facts are ascer- tained and disputed, what shall constitute due diligence is a question of law. This is certainly best calculated to have fixed and uniform rules on the subject, and is highly important for the safety of holders of com- mercial paper. And these rules ought to be reasonable and founded in general con- venience, and with a view to clog, as little as possible, consistently with the safety of parties, the circulation of paper of this description ; and the rules which have been settled on this subject have had in view these objects. Thus, when a party entitled to notice, has in the same city or town a dwelling-house or counting-house or place of business, within the compact part of such city or town, a notice delivered at either place is suflScient, and if his dwelling and place of business be within the district of a letter carrier, a letter containing such notice addressed to the party and left at the post-oiEce, would also be sufficient. All these are usual and ordinary modes of communication, and such as afford reasonable ground for presuming that the notice will be brought home to the party without unreasonable delay. So when the holder and en- dorser live in different post towns, notice sent by the mail is sufBcient, whether it reaches the endorser or not. And this for the same reason, that the mail being a usual channel of communication, notice sent by it, is evidence of due diligence. And for the sake of general convenience it has been found necessary to enlarge this rule. And it is accordingly held, that when the party to be affected by the notice, resides in a dif- ferent place from the holder, the notice may be sent by the mail to the THE BANK OF COLUMBIA V. LAWRENCE. 899 post-office nearest to the party entitled to such notice. It has not been thought advisable, nor is it believed that it would comport with prac- tical convenience, to fix any precise distance from the post-office, within which the party must reside, in order to make this a good service of the notice. Nor would we be understood, as laying it down as a universal rule that the notice must be sent to the post-office nearest to the resi- dence of the party to whom it is addressed. If he was in the habit of receiving his letters through a more distant post-office, and that circum- stance was known to the holder, or party giving the notice, that might be the more proper channel of communication, because he would be most likely to receive it in that way : and it would be the ordinary mode of communicating information to him, and therefore evidence of due diligence. In cases of this description, where notice is sent by mail to a party living in the country, it is distance alone or the usual course of re- ceiving letters which must determine the sufficiency of the notice. The residence of the defendant therefore being in the county of Alexandria, cannot affect the question. It was in proof that the post-office in Georgetown was the one nearest his residence, and only two or three miles distant, and through which he usually received his letters. The letter containing the notice, it is true, was directed to him at George- town. But there is nothing showing that this occasioned any mistake or misapprehension with respect to the person intended, or any delay in receiving the notice. And, as the letter was there to be delivered to the defendant, and not to be forwarded to any other post-office, the address was unimportant, and could mislead no one. No cases have fallen under the notice of the Court, which have sug- gested any limits to the distance from the post-office, within which a party must reside in order to make the service of the notice in this manner good. Cases, however, have occurred, where the distance was much greater, than in the one now before the Court, and the notice held sufficient, (1) In cases where the party entitled to notice resides in the country, unless notice sent by mail is sufficient, a special mes- senger must be employed for the purpose of serving it. And we think that the present case is clearly one which does not impose upon the plaintiffs such duty. We do not mean to say no such cases can arise, but they will seldom, if ever occur, and at all events such a course ought not to be required of a holder, except under very special circumstances. Some countenance has lately been given to this practice in England in extraordinary cases, by allowing the holder to recover of the endorser (1) Eeed t>. Payne, 16 Johnson, 218. 400 MODE OF COMMUNICATING NOTICE. the expenses of serving notice by a special messenger. The case of Pearson v. Crallan (2 J. P. Smith, 404,) is one of this description. But in that case the Court did not say that it was necessary to send a special messenger, and it was left to the jury to decide whether it was done wantonly or not. The holder is not bound to use the mail for the pur- pose of sending notice. He may employ a special messenger, if he pleases, but no case has been found where the English Courts have directly de- cided that he must. To compel the holder to incur such expense would be unreasonable, and the policy of adopting a rule that will throw such an increased charge upon commercial paper, on the party bound to pay, is at least very questionable. We are accordingly of opinion that the notice of non-payment was duly served upon the defendant, and that the Court erred in refusing so to instruct the jury. Judgment reversed and a venire facias de novo awarded. The rule stated in the principal case, that in communioatiDg notice of dis- honour, a holder is bound only to due or rtawnable diligence, and is not obliged to see that notice is brought home to the party to be affected, is now well settled, both as concerns the medium of communication and the place to which the notice is sent (1) Another principle mentioned in the Banh of Columhla v. Lawrence, that due diligence is a question of law, is also universally established : that is to say, where there is no dispute about facts, the court is to determine whether reason- able diligenoif has been used, and not to submit it to the jury as a question of fact; and where the facts are disputed, it is the duty of the court to state to the jury the legal principles which are applicable, and leave the question to be determined by them according to those principles, as they shall find the facts in favor of one or the other ;(2) an endorser, also, has a right to insist on strict legal proof of notice. (3) If the holder and endorser reside in the same place, the rule is that notice must be personal, that is, must be given to the individual, or left at his domi- cil or place of business, and cannot be sent through the post-oflSce ;(4) and a (1) See Diokina v. Beal, TO Peters, 574, 579, 680. (2) Bank of Utioa c. Bender, 21 "Wendell, fi43 ; Remer v. Downer, 23 Id., 620, 623; Spencer V. The Bank of Salina, 3 Hill's N. T., 620 ; Carroll v. Upton, 3 Com.'itook, 272 ; Ehett v. Poe, 2 Howard's Supreme Court, 468, 481; Han-is v. Eobinson, 4 Id., 33l'i, 345; Creamer i-. Perry & Tr., 17 Pickering, 332, 335; Wheeler and another v. Field, 6 Metcalf, 290, 295; Belden i'. Limb, 17 Connecticut, 442, 451 ; Ferris v. Saxton, 1 Southard, 1, 18, 21 ; Collins v. W'arburton &, Ei=ley, 3 Missouri, 202, 203 ; Godley et al. v. Goodloe, 6 Smedes & Marshall, 255. (3) The Bank of Vergennes v. Cameron, 7 Barbour's S. Ct., 144, 149. (4) Bowling D. Harrison, 6 Howard's Supreme Court, 248, 258 ; Peirce and another v. Pendar, 5 Metcalf, 352 : Phipps and others ». Chase, 6 Id., 491 ; dicta in Manchester Bank v. Fellows, THE BANK OF COLUMBIA V. LAWRENCE. 401 custom among the notaries of a particular city to give notice through the post- office, cannot make that practice lawful ;(1) but a custom or bj-law of a bank, establishing this mode of giving notice, will bind parties to bills or notes ex- pressed to be payable at the bank. ('2) If the party to whom notice is to be given, has both a dwelling-house and a place of business in the town, notice may be sent to either, as is remarked in the principal case, and elsewhere ;(8) and if he has several places of business, it may be left at any of them;(4) and if verbal notice is sent to the party's place of business during business hours, or to his dwelling at a seasonable hour, and there is no one there to receive it, the bolder is not bound to take any fur- ther trouble ;(5) and if the party is at lodgings, and upon inquiry there, is not within, notice may be left with a fellow-boarder and inmate for him. (6) No- tice, also, may be sent to any place indicated by the party as the one where no- tices for him are to be delivered. (7) [And if an endorser should write after his name " 13, Chambers St.," the location of his office in New York, he thus indicates this as a proper place to direct a notice to, though he resides in Brook- lyn — not in New York.] (8) But where notice was left at a shop near the endorser's with a person who promised to give it to him as soon as he saw him, and did give it the next day or the day after, it was held not to be sufficient ;(9) and where notice was given to a clerk of the endorser in the street, it was con- sidered not to be enough without proof that the clerk was an agent to receive notice, or that it was his business to attend to such subjects (10) These are merely illustrations of the general principle, that in communicating special no- tice, due diligence is necessary, and that nothing more is required. The rule requiring personal notice to be given, and forbidding the employ- ment of the post-office, where the parties live in the same place, was applied in Ireland v. K!p, 10 Johnson, 490, S. C. 11 Id. 231, in a case where the endor- ser resided three or four miles from the post-office, and beyond the ordinary range of the letter-carriers, but in the same city, and received his letters from the same office where the notice was deposited. But of late, in some of the 8 Foster, 310; Sheldon v. Benham, 4 Hill's N. Y., 129, 133; The Cayuga County Bank ii. Ben- nett, 5 Id., 237,241; Brindley t). Barr, 3 Harrington, 419; Shepard ». Hall, 1 Connecticut, 329, 333; Green v. Darling, 15 Maine, 141; Kramer v. JI'Dowell, 8 Watts & Sergeant, 138; Stephenson v. Primrose, 8 Porter, 156; Curtis v. The State Bank, fi Blackford, 312; The State Bank v. Slaughter, 7 Id., 133. (1) Wilcox A Fearn v. M'Nutt, 2 Howard's Mississippi, 776. (2) Gindrat et al. v. The Mechanics' Bank of Augusta, 7 Alabama, 325, 333; see 1 Smith's Leading Cases, 5th American ed., 684 (3) BankofGenevat). Hewlett, 4 Wendell, 328, 331, and Lord p.Appleton, 15 Maine, 270, 272. (4) Phillips V. Alderson, 5 Humphreys, 403. (5) Williams v. The Bank of the United States, 2 Peters, 97, 101, 103; Howe v. Bradley, 19 Maine, 31, 35; Stephenson v. Primrose, 8 Porter, 156, 162. (6) Bank of the United States v. Hatch, 6 Peters, 260, 257 ; sustained hy Buxton v. Jones, 1 Manning & Granger, 83. (7) Eastern Bank v. Brown, 17 Maine, 356; see Bank of the United States v. Corcoran, 2 Peters, 121, 131, 132; and Farmers' and Merchants', Bank t. Buttle & Massey, 4 Humphreys, 8fi, 92. (8) Morris v. Husson, 4 Sandford, 96. (9) Granite Bank ti. Ayres, 16 Pickering, 392. (10) Fortner v. Parham and Gibson et al., 2 Smedes & Marshall, IJl, 164. VOL. I.— 26 402 MODE OF COJIMUNICATUSTG NOTICE. States, the courts have evinced a disposition to restrict this rule within narrow limits. The principle case, and several other oases, (1) decide that if the party lives out of the town, but comes to the post-office of that town, for his letters, notice may be directed to him through the post-office; thereby deciding that the post-office is a legal place of deposit for notices where the endorser lives out of the town, or at least at such a distance from the town, as would render the employment of a special messenger unreasonably burdensome : on the other hand, in other States, the decisions continue strictly to enforce the old rule that the post-office is to be used only for transmission, and to hold that where the party lives a few miles out of the town, but comes there for his letters, no- tice cannot be deposited in the post-office; (2) and though in Louisiana, under the statute of 13th March, 1827, sec. 2, notice may be sent in such a case through the post-office, yet it is still held there that the general commercial law is otherwise.(3) In like manner, in Ransom v. Mack, 2 Hill's N. Y. 588, and Farmers' & Merchants' Bank v. Battle & Massey, 4 Humphreys, 86, the prin- ciple is affirmed that the post-office is for transmission and not deposit, and that the question is not whether the parties reside in the same town or legal district, nor of the distance at which they live from one another, but whether they use the same post-office, or whether there is a transmission by mail ; and seej'ierce (£• another v. Penclar, .5 Metcalf, 3.52, 356. In Eagle Bank v. Hathawai/, 5 Metcalf, 213,(4) the very important point is decided, that personal notice is re- quired only where the transaction which is to be notified occurs in the same place in which the party to whom notice is to be given resides ; and that where a bill was dishonoured in Philadelphia and notice sent to an endorser in Provi- dence, the latter might give notice through the post-office to a previous party residing in Providence: and the court said that if it were an original question, it might be doubtful whether in large cities, and among commercial men, the post-office would not generally be the speediest method of communication, and though the rule is settled by a long course of judicial decisions, it is thus settled by positive law only so far as the cases are within it. [And this same rule has been established in other ca.ses where the notary giving notice to one endorser, encloses to him, under the same cover, a notice for him to give to a prior endor- ser living in the same place with him. In such cases it has been decided thut the second notice may be re-deposited in the post-office, rightly addressed on the outside, and that this is enough, the first endorser being an agent of the notary or holder; who might, if he had pleased, have sent the notice directly by mail.](-T) (1) Jones I'. Lewis, 8 Watts A Sergeant, 14 ; Timma i-.DelisIe, 5 Blackford, 447; Bell d. The State Bank, 7 Id., 457, 460 ; Fisher o. The State Bank, Id., 610 ; Walker and others v. The Bank of Augusta, 3 Kelly, 48S; Carson v. The Bank of the State of Alabama, 4 Alabama, 148, 152 ; and Foster v. Sineath, 2 Richardson, 338 ; and see Bank of the United States v. Norwood, 1 Harris &, Johnson, 423, and Gist v. Lybrand, 3 Ohio, 307, 320. (2) Patrick v. Beazley, 6 How.nrd's Mississippi, 609; Hogatt i>. Bingaman, 7 Id., 565; Bar- ker o. Hall, Martin & Yerger, 183; Laporte v. Landry, 5 Martin N. S., 359; Louisiana State Bank v. Rowel et al., 6 Id., 506. (3) Glenn v. Thistle, 1 Robinson, 672; Dunean v. Sparrow, 3 Id., 165, 168; Harris, for the use, Ac., V. Alexander and another, 9 Id., 152, 453; and see Bank of Logan t>. Butler, 3 Lit- tell, 499. (4) And see Hartford Bank v. Stedman and Gordon, 3 Connecticut, 489, 496, and Foster v. McDonald, 3 Alabama, 31, S. C, 5 Id., 377. (5) Manchester Bank v. Fellows, 8 Foster, 313, and Warren v. GUman, 5 Shepley, 360. THE BANK OF COLUMBIA V. LAWRENCE. 403 So in Gindrat et al. v. The Meclianics' Bank of Augusta, 7 Id. 325, 331, it is decided that the mail is an allowable medium, if the parties between whom the notice proceeds do not reside in the same place ; and therefore, that if the holder resides in a different place from the party to whom notice is to be given, notice may be given by his agent or notary, through the mail, to a party resi- ding in the same place with the agent or notary [And the same privilege of post was held in the same State in the converse case, (1) where the holder of the bill (an endorsee) and the party sought to be charged (an endorser) re- sided in the same place; but the notice had been sent by mail by an agent of the holder, directly to the endorser, from another place; the one on which the bill had been drawn.] It should be observed also, that the usage of a bank where a note is made payable, may control the general law as to the mode of communication as well as other particulars, and authorize notice to be given through the post-office (2) It is obvious that the rule requiring personal notice where the parties reside in the same place, has lost its reasonable force, and exists only by authority. Instead of undermining it with exceptions that conflict with it in principle, and render the subject embarrassing in practice it would be much better to declare that the rule itself has become obsolete, and is abolished. If the parties reside in different places, notice may be sent by mail : [see Ante, 394,] and putting into the post-office seasonably a notice properly directed is, in itself, due diligence, or constructive notice ; and will be sufficient, although it never reaches the party ; [for the notice must go at the risk of the endorser, and the time of the reception of the notice must also be at his risk.] (3) A party, however, is not obliged to make use of the mail for the transmission of notice, but may adopt a private conveyance, provided he shows that due diligence was used. (4) In Full v, Jachman, 19 Maine, 467, 472, it was said that where an endorser resides in a secluded part of the country, twenty miles from any post-office, the mail is not an allowable medium of notice ; but this is probably not correct; one who becomes a party to a commercial instrument should be considered as rendering himself subject to commercial law and usage. (6) With regard to the place to which notice sent by mail is to be directed ; if the residence of the party is known, the general principle of law is that laid down in the principal case, and recognised in Bank of the United States v. Carneal, 2 Peters, 543, 551, and in Chouteau v. Webster, 6 Metcalf, 1, 7, that notice should be sent to such place that it will be most likely promptly to reach the person for whom it is intended. Notice directed at large to the town or district of country, where the parties reside, is, in the absence of any special notification to adopt a different address, always sufficient, although there may (1) Greene v. Farley, 20 Alabama, 322. (2J Chicopee Bank v. Eager, 9 Metcalf, 583 ; see Smith's Leading Cases, 5tli American edn., 684. (3) Shed ti. Brett, 1 Pickering, 401, 407; Dickins o. Beal, 10 Peters, 574,579; Thorn v. Bice, 16 Maine, 263, 267; Jones ti. Lewis, 8 Watts & Sergeant, 14, 15; Bell d. The Hagerstown Bank, 7 Gill, 216; dicta in Manchester Bank v. Fellows, 8 Foster, 315; Woodcock v, Houlda- ■worth, 16 Meeson & Welsby, 124, 126. (4) Jarvis v. St. Croix Manufacturing Company, 23 Maine, 287. (5) See State Bank of Elizabeth v. Ayers, 2 Halsted, 130, 131. 404 MODE OF COMMUNICATING NOTICE. be several post-oflSoes in the town, or he may usually receive his letters at the post-office of another place. (1) If, however, the party usually receives his let- ters at the post-office of a different place from that in which he resides, notice sent to that post-office will be good. (2) If the party does not live in any village or town in which there is a post office, notice should be sent to the office nearest his domioil;(3) but if he commonly receives his letters at a more distant office, notice may be sent to that to which he usually resorts; (4) in such a case, notice may be sent to either office (5) In Banh of the United States v. Lane, 3 Hawks, 458, 456, it is said, that, after all, the question settles down to the inquiry, not whether the notice was directed to the nearest post-office to the party, but to that which was most likely to impart to him the earliest intelli- gence. If the party is temporarily absent from home, for a longer or shorter time, notice sent to his general domicil will be sufficient, and should be sent there, if not given to him personally. (6) The better opinion is, that notice given to the party in person, or directed to him at his actual residence through the post- office, when he is away from home, will be good, unless at the time of incurring his liability he stipulated that notice should be sent to a particular place. Notice addressed by mail to an endorser, who is residing at Washington in the performance of his duty as a member of Congress, will be good :(7) but in such a case, if the party's general domicil continues, notice sent to it will be suffi- cient.(8) If the party's residence has been changed without the knowledge of the holder, notice may be sent to the original residence. (9) Notice sent to a par- ticular place pointed out by the endorser, will generally be good, both in refer- ence to himself and parties behind him. (10) If the residence of the party is transitory and variable, notice is properly sent to the place of his most usual resort. (11) If the residence of the endorser is not known to the holder, he or his agent (1) Bank of Manchester v. Slason, 13 Vermont, 334, 340; Remer v. Downer, 23 Wendell, 620, overruling Cuyler v. Nellis, i Id., 398 ; Band o. Reynolds, 2 Grattan, 171. (2) Reid r. Pajne, 16 Johnson, 213; Hunt v. Fish, 4 Barbour's Supreme Court, 325, 330 ; Morris v. Husson, 4 Sandford, 96. (3) State Bank of Elizabeth v. Ayers, 2 Halsted, 130, 131 : Dunlap v. Thompson, 5 Yerger, 67, 70 ; Priestley and others v. Bisland and others, 9 Robinson, 426, 429. (4) Bank of Geneva i. Hewlett, i Wendell, 323; Montgomery County Bank i,. Marsh, 11 Barbour, 645; Glasscock v. Bank of Missouri, 8 Missouri, 443, 445 ; The New Orleans and Car- roUon Railroad Company v. Robert, 9 Robinson, 130 ; Tlie Grand Gulf Railroad and Banking Company v. B.irnes, 12 Id., 128, 129. (5) Farmers' and Merchants' Bank v. Biittle .T,nd Massey, 4 Humphreys, 86, 91 ; New Or- leans Canal and Banking Company r. Briggs, 12 Robinson, 175; FuUain and others v. Dupr§ and others, 11 Id., 456, 472; Hazelton Coal Co. '.'. Ryerson, Spencer, 129; Barry et al. v. Crowley, 4 Gill, 195, 202. (6) Fisher v. Evans, 5 Binney, 541 ; Ilager v. Boswell, &a., 4 J. J. Marshall, 61, 62 ; Stewart «. Eden, 2 Caines, 121,127; M'Murtrie v. Jones, 3 Washington, 206, 208; Smedes i. Utica Bank, 20 Johnson, 372, 382; see Goodwin n. McCoy, 13 Alabama, 271, 279. (7) Chouteau o. Webster, 6 Metcalf, 1 ; Tunstall o. Walker, 2 Smedes A Marshall, 638. (8) Marr v. Johnson, 9 Yerger, 1, 6. (9) Union Bank of Tennessee v. Govan, 10 Smedes & Marshall, 334, 342. (10) Shelton v. Braithwaite, 8 Meeson & Welsby, 252. (U) McClain v. Waters, 9 Dana, 55. THE BANK OF COLUMBIA V. LAWRENCE. 405 or notary, must use due diligence to discover it ; and if due diligence be used, it will be sufficient, even thougb the notice should be sent to the wrong place :(1) and the rule is the same, where a known residence has been changed. (2) By sending notice, after due diligence, a right of action is acquired, and if the holder subsequently discovers that his notice was missent, and acquires knowledge of the party's actual residence, he is not bound to send a second notice. (3) Due diligence consists in making inquiry from such acces- sible persons as, from their connexion with the transaction, or place, or parties, are most likely to be informed, and in sending notice to the place where, according to the best information to be obtained, the party is most likely to be reached. (4) The holder will be justified ia relying upon information derived from the agent of the endorser to be affected, or from the drawer of an accom- modation bill or maker of an accommodation note, endorsed and discounted for his benefit, or from his agent, or from a subsequent endorser, who professes to know and is interested to speak truly ;(5) but not on the statements of mere strangers having no connexion with the parties and no probable knowledge of them, unless it appear that no better information can be had ;(6) see this matter considered at large in Harris v. Robinson, 4 Howard's S. G. 336, 346, &c. A holder is not justified in sending notice to the place where the bill is dated, without making inquiry, if the drawer really resides elsewhere; the date of a bill not being a sufficient indication of residence to dispense with further in- quiry; (7) and this applies still more strongly to the case of an endorser; (8) however, if after due diligence, no information is obtained as to the party's resi- dence, notice is properly sent to the place where the bill or note is dated. (9) If, however, it be not shown that the drawer resides elsewhere, probably, it will be taken, prima facie, that the place of the date is the place of his residence, (1) Niohol V. Bate, 7 Yerger, 305; Barr, etc., v. Marsh, 9 Id. 253; Davis v. Beckham, 4 Humphreys, 63; Hoopes and Bogart v. Newman, Executor, 2 Smedes & Marshall, 71, 79. (2) Phippa and others v. Chase, 6 Metoalf, 491 ; Barker v. Clark, 20 Maine, 166 ; Planters' Bank v. Bradford, 4 Humphreys, 39 ; Harris v. Memphis Bank, Id., 519. (3) Lambert et al. v. Ghiselin, 9 Howard's S. Ct., 652, 568. (4) See Winans v. Davis, 3 Harrison, 277 ; Woodruff v. Daggett, Spencer, 526, 534 ; Hill v. Varrell, 3 Greenleaf, 233; Branch Bank at Decatur v. Pierce, 3 Alabama, 321; Stuokert ». Anderson, 3 Wharton, 116; Hunt v. Nugent, 10 Smedes & Marshall, 542, 548 ; Carroll v. Up- ton, and Rawdon v. Redfield, 2 Sandford's S. Ct., 172, and 178; Lambert et al. <;. Ghiselin, 9 Howard's S. Ct., 652, 568 ; Hunt v. Maybee, 2 Selden, 271. (5) Bank of XJticat). Davidson, 5 Wendell, 587; Catskill Bank v. Stall, 15 Wendell, 364, S. C. on error, 18 Id., 466 ; Bank of Utica v. Bender, 21 Id., 643 ; Bansom k. Mack, 2 Hill's N. ■J., 588, 692 ; and see Farmers' and Merchants' Bank v. Eddings, 4 Humphreys, 521, note. (61 Bank of Utica ti, De Mott, 13 Johnson, 432; Spencer v. The Bank of Salina, 3 Hill's N. ¥., 520. (7) Fisher v. Evans, 5 Binney, 541 ; Lowery v. Scott, 24 Wendell, 358 ; Spencer v. The Bank of Salina, 3 Hill's N. T., 620; Carroll v. Upton, 3 Comstock, 271, 274; Barnwell v. Mifcohell, 3 Connecticut, 101; Foard v. Johnson, 2 Alabama, 565; Fitler v. Morris, 6 Wharton, 406, 415. (8) Denney v. Palmer, 5 Iredell's Law, 611, 621 ; M'Lanahan et al. v. Brandon, 1 Martin, N. S., 322. (9) Wood and others v. Corl, 4 Metcalf, 203, 206; Bank of Utica v. Davidson, 5 Wendell, 587; Godley et al. o. Goodloe, 6 Smedes & Marshall, 265; Branch Bank at Decatur v. Peirce, 3 Alabama, 321. 406 MODE OF COMMUNICATING NOTICE. and notice sent there will be good (1) If the holder cannot ascertain the endorser's residence, he may enclose the notice to some one elsewhere who is acquainted with it, directing him to send it on. (2) Beyond the limit of these very general suggestions, no fixed rule can be indicated : but it is a question for the Court, under all the circumstances, whether the holder has used reasonable and proper diligence. If the endorser be dead, notice, regularly, should be sent to his personal representative. (3) If it is known to the holder, or could be ascertained by reasonable inquiry, who the representative of the endorser is, a notice sent addressed to the deceased endorser is bad :(-!:) but if there be no executor or administrator, or their exist- ence is not known to the holder, notice addressed to the endorser, at the resi- dence of his family, will be suiEoient. (5) Notice addressed "to the legal representative," of the endorser, and sent by mail to the place of the endorser's residence, the holder not knowing who the administrator is, is sufficient. (6) Where a partnership is the endorser, and one of the firm is- dead before the default, notice intended to charge the fii-m efl'ects must be sent to the surviving partner; but if intended to charge the private estate of the deceased partner, must be sent addressed to his administrator. (7) Notice need not be in writing : verbal notice is sufficient. (8) [And a verbal notice of dishonour, which calls forth a conversation, and on which any inquiry can be made on the spot, if the notice were not as formal as it might be, is not to be construed with the same strictness as a written notice, when that is the only means of information the party has.] (9) Where a note is endorsed in a partnership name, notice to one partner is notice to the firm ; Dahney v. Stiihjcr, 4 Smedes & Blarshall, 749 ; but where joint payees, who are not partners, jointly endorse a note, both must have notice, to render either liable ; Sayre v. Frick, 7 Watts & Sergeant, 388 ; Willis V. Green, 5 Hill's N. Y. 232; The Stale. Bank v. Slaughter, 7 Black- ford, 138 ; She^yard v. Hawley, 1 Connecticut, 367 ; and see Wood v. Wood and Wood, 1 Harrison, 429 ; Contra, Dodye et al. v. Bank of Kentucky, 2 Marshall, 610, 615; Higgins v. Morrison's Executor, 4 Dana, 100, 106; and see God- dard v. Lyman, 14 Pickering, 268. (1) Page and Stivers v. Prentice and Weissinger, 6 B. Monroe, 7; Kobinson and Davenport ^. Hamilton, 4 Stewart A Porter, 91. (2) Hartford Bank v. Stedman and Gordon, 3 Connecticut, 489 ; Safford «. Wjckoff, 1 Hill's N. Y., 12. (3) Tlie New Orleans and CaroUton Railroad Company y. Kerr and another, 9 Robinson, 122; Oriental Bank v. Blake, 22 Pickering, 206. (4) The Cayuga County Bank v. Bennett, 5 Hill's N. Y., 237, 238. (5) Stewart v. Eden, 2 Caines, 121, 128; Merchants' Bank v. Birch, 17 Johnson, 25 ; "Willis V. Green, 5 Hill's N. Y., 232, 234; Planters' Bank v. White, 2 Humphreys, 112. (6) Pillow V. Hardeman, Adm'r, 3 Humphreys, 538. (7) Cocke V. The Bank of Tennessee, 6 Humphreys, 51. (8) Cuyler u. Stevens, 4 Wendell, 666; Gilbert v. Dennis, 3 Metcalf, 495, 498; Glasgow ». Pratte, 8 Missouri, 336. (9) Woodin o. Foster, 16 Barbour, 149; and see Metcalfe v. Richardson, 11 C. B. (73 E. C. L.), 1011. LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOE. 407 PARTNERSHIP. OF THE EXTENT TO WHICH ONE MEMBER OP A COMMERCIAL PARTNERSHIP MAY BIND THE FIRM. B. LIVINGSTON v. C. 0. ROOSEVELT AND C. I. ROOSEVELT. In the Supreme Court of New York. MAY TERM, 1809, [REPORTED, 4 JOHNSON, 251-280.] Where a person takes a partnership security from one of the partners, for what is known, at the time, to be a particular debt of the partner who gives the security, the copartnership is not liable. Where there is a partnership limited to a particular trade or business, one partner cannot bind his copartner by any contract not connected with such trade or business. And a knowledge in third persons of the limited nature of the partnership, will be inferred from circum- stances. It seems, that a publication in the gazette, of the nature of the copartnership, at the time of its commencement, is constructive notice to all those who may, afterwards, take the copartnership security. This was an action of assumpsit. The plaintiff declared on a pro- missory note, dated April 26, 1805, drawn by the defendant, C. I. R., payable to C. C. Roosevelt & Co., and endorsed by the said C. I. R. in the name of C. C. R. & Co. to the plaintiff, who resides in the city of New York. When the note became payable, it was regularly protested for non- payment, and notice given to C. C. Roosevelt. A judgment by default was entered against C. I. Roosevelt. The other defendant, C. C. R., pleaded non-assumpsit. The cause was tried at the New York Sitting, in December, 1807, before Mr. Justice Spencer. The defendants, in February, 1803, entered into copartnership in the city of New York, and published, for two weeks successively, in the "Evening Post" and "American Citizen," an advertisement, that they had entered into partnership in the sugar refining business, under the firm of C. C. Roosevelt & Co., and that their sugar-house was in 408 POWEE OF" ONE PARTNER TO BIND THE FIRM. Thames street. Both these newspapers were taken by the plaintiff during the time of the advertisement. The copartnership continued until June, 1805, when it was dissolved, and notice of the dissolution was given in the same newspapers. The note in question was given for 20 pipes of brandy, purchased of John G. Bogert, agent for the plain- tiff, and which were in the hands of Bogert, as administrator of Anthony Caroll, deceased^ and were sold in part satisfaction of a debt due from that estate to the plaintiff. The bill of parcels of the brandy, with the contents, the number and mark of each pipe, was made out by, a clerk, in the name of C. I. Roosevelt only. The brandy was entered at the custom-house, in the name of C. I. Roosevelt ; and to obtain the usual debenture, the plaintiff made oath at the custom-house, that the sale was to C. I. Roosevelt. This affidavit was made the 24th April, 1805, subsequent to the sale, and before the note was given. The clerk at the custom-house, who attended with the affidavit, testified, that when an article was sold for exportation, as he believed, to a copartnership, it was not uncommon in the affidavit made, in order to obtain the deben- ture, to state that they were sold to one of the firm, without mentioning the other partners; but whether, in such cases, the sale was in reality made to the firm, or to the individual partner to whom it was stated in the afSdavit to be made, he did not know. The brandy was actually exported in a vessel belonging to C. I. Roosevelt, and which had been purchased with his own note, without an endorser. J. G. Lockwood, a witness for the defendant, testified, that, in the spring of 1805, he was employed by C. I. Roosevelt, as supercargo, on board the schooner Elizabeth, on a voyage to the West Indies ; this was the vessel purchased by C. I. R., as above mentioned. The cargo con- sisted of cloves, 20 pipes of brandy, purchased of the plaintiff, and a variety of other articles. C. C. Roosevelt had no interest or concern in the vessel or cargo. John Y. Cebra testified, that he was a clerk of the defendants from 1804 until the dissolution of their partnership. On the building where the copartnership business was conducted, was painted, in large letters, " Sugar-House." He knew of no copartnership beyond the limits of the sugar-refining business. The note in question was given at the dwelling-house of C. I. Roosevelt, No entry of the purchase of the brandies was made in the copartnership books, and he understood that it was a private speculation of C. I. Roosevelt. John Cross testified, that he was directed to deliver the brandy by John G. Bogert, the agent of the plaintiff; but he received no directions from the plaintiff to make out the bill of parcels, nor did he recollect LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOR. 409 receiving any from John G. Bogert. Neither of them, as far as he knew, ever savr the bill. The bill was made out as C. I. Roosevelt directed. John G. Bogert directed the witness to call for the note, but gave no directions relative to the form in which it was to be made. He called on C. I. Roosevelt, at bis dwelling-house, and received the note, and when he handed it to J. G. Bogert, no objection was made by him or the plaintiff relative to the form of it. It appeared that at two of the banks, in the city of New York, the defendants, from the commencement of their co-partnership, had been in the habit of keeping partnership accounts, and had been there con- sidered as general partners. That the entry of the partnership name of C. C. R. & Co., in the bank book of signatures, was in the hand of C. I. Roosevelt, and that the checks and other partnership papers which passed at the banks were generally signed by C. I. Roosevelt, in the name of the firm ; that credit was given at these banks principally to C. C. Roosevelt, and that nothing was known, at either of them, of any limitation of the partnership. The plaintiff proved by several merchants and others, that although they knew of the partnership, they never heard, until after its dissolu- tion, of any limitation, though several of them took the newspapers in which the advertisements were published. John G. Bogert testified, that he was the agent of the plaintiff; that the bargain for the brandies was made with C. I. Roosevelt, but he understood they were sold to and for the partnership, although nothing was said on whose account the purchase was made. The partnership engagement was to be given, and the sale was not completed until he had satisfied himself, by inquiries, that the defendants were partners. He never heard of any limitation to the partnership until after its dis- solution, and he gave no directions to Cross to make out a bill of parcels. He believed, when the sale was made, that the partnership was a general one. The judge told the jury, that he was decidedly of opinion, upon the facts above stated, that the plaintiff was entitled to recover, and the jury accordingly found a verdict for the plaintiff. The defendants moved for a new trial, on the ground of the misdirec- tion of the judge, and because the verdict was against law and evidence. Two points were made : 1. A partnership security was taken for what was known to be the individual debt of one partner. 2. That if the individuality of the debt was not known to the plaintiff 410 POWER OF ONE PARTNER TO BIND THE FIRM. or his agent, still, in limited partnerships, one partner has no authority to bind the firm in a transaction out of the scope of the partnership. Q-riffin, for the defendant. 1. The partnership of C. C. Roosevelt & Co. was special, being expressly limited to the sugar refining busi- ness. The note in question was given for brandy, and the purchase made exclusively for the interest of C. I. Roosevelt, and without the knowledge of C. C. Roosevelt. The plaintiff took a partnership secu- rity for an individual debt of one of the partners, knowing it to be so. The knowledge of the plaintiff, or his agent, that the security was for the individual debt of 0. I. Roosevelt, is material, and is fully proved by the written documents in the case. The bill of parcels made to C. I. R. is a contemporaneous exposition of the understanding of the par- ties ; for it is to be presumed, that if the sale had been actually made to the partnership, the bill would have been made out in the name of C. C. Roosevelt & Co. That is the natural and usual course of busi- ness. The entry at the custom-house for exportation, and the affidavit of the plaintiff himself, that the sale was made to C. I. Roosevelt, is strong evidence of the fact. Again, the form of the note is almost con- clusive evidence, that the brandy was sold to C. I. Roosevelt alone. It is drawn by him alone, and he endorsed the name of the firm If it was a copartnership debt, this mode of making and endorsing the note could give no additional security. If the name of the firm had been subscribed, as makers, each of the defendants would have been equally liable to the plaintiff. It was expressly decided in the case of Livingston v. Hastie and Patrick, 2 Caines, 246, that a note given by one partner in the name of the firm, for his individual debt, was void, as against the firm, and even against a friendly endorser, not knowing on what account it was drawn, where the endorsee himself did not know for what the note was given. The same doctrine was recognised in the case of Lansing v. Gaine and Ten Eyck, 2 Johnson, 300. 2. But admitting that the plaintiff or his agent did not actually know whether the brandy was purchased for the individual account of C. I. Roosevelt, or not, still, in the case of a limited partnership, one partner has no power to bind his copartner, for anything out of the course of their copartnership dealings. The principle on which one partner is made liable for the acts of his copartner, is the implied assent arising from the copartnership; but no assent can be presumed to any contract out of the scope of the copartnership business. Suppose a copartner- ship between two silversmiths, or shoemakers, could one partner bind his LIVINGSTON V. ROOSEVELT: ETC. ROGEES V. BATCHELOE. 411 copartner, by giving notes, in the name of the firm, for ships or mer- chandise? or suppose a partnership between two attorneys, could one bind the other, by purchasing ships or goods, in the name of the partnership? In the present case the copartnership was expressly limited to a particular manufacture or business. The distinction between general and limited partnership has been long known and settled. (Watson on Partn. 180, 2d. ed.) In a general partnership, one partner has an unlimited power to bind his copartner, except by a bond or sealed instrument, or where there is a collusion with a third person to cheat the firm. In a special partnership, if one party uses the name of the firm, in matters out of the scope of the partnership, it not only is an abuse, but a transgression of his power. So a general agent may abuse his authority, and yet the principal be liable ; but if a special agent exceeds his authority, his principal is not liable.(l) It is only to act in the course of their particular trade or line of business, that an authority is delegated by partners to each other; and it is only in such trans- actions that strangers have a right to go on the credit of the partner- ship funds. (2) There are two exceptions to the general rule on this subject: 1st. Where the partner who denies his liability, had an interest in or derived a benefit from the contract; 2d. Where due diligence or caution has not been used in informing the world of the nature of the partnership ; for the presumption must be, that the partnership is general, unless the contrary has been made known. C. C. Roosevelt cannot be brought within either of these exceptions ; he knew nothing of the purchase of the brandy, which was made solely and exclusively for the benefit of C. I. Roosevelt. The defendants did all in their power to make known to the public the limited nature of their partnership. Advertisement in the gazette is the most usual, and certainly the most efi'ectual, way of making such a fact known. It has been decided, that an advertisement in the gazette is suflScient notice of the dissolution of a copartnership, (3) for the same, or a stronger reason, it ought to be considered as sufficient notice of the nature of the partnership. T. A. Emmet, contra. If there is evidence sufiBcient to justify the jury in finding their verdict, the court will not disturb it. Mere know- ledge of the nature of the partnership, and of its being an individual (1) Fenn v. Harrison et al., 3 Term, 1b1, 760. (2) Watson, ISO; 16 Vin. Abr., 242 ; Pinkney v. Hall, 1 Salkeld, 126; Willet v. Chambers, Cowper, 814; Peele, ex parte, 6 Vesey, jun., 604; De Berkom k. Smith et al., 1 Espinasse, 29. (3) LanEing v. Gaiue et al., 2 Johnson, 300. 412 POWEE OF ONE PARTNER TO BIND THE FIRM. transaction is not sufficient ; there must be cullusion or fraud, and knowledge is only evidence of such fraud. This knowledge ought to be strong and full, not slight or presumptive. Sugar refiners must purchase raw sugar ; it is not, therefore, impro- bable, but a fair inference, that the brandy was purchased as an adven- ture to the West Indies on the partnership account, in order to procure the raw materials for the manufactory. The testimony of Bogert is direct and positive, that he trusted to the credit of the partnership, and that he thought it a copartnership transaction. Cross, who made out the list of parcels, was not the agent of plaintiff. He made it out agreeable to the directions of the person who called for it. There is a material difference between a gazette notice of the disso- lution of a partnership, and a notice of its nature and commencement. The former operates immediately; but a notice of the nature of limita- tion of a partnership which may continue many years, may, in a short time be forgotten by the world, who only see persons acting together as general partners. These acts obliterate the remembrance of the former notice of the nature of the copartnership, published at its com- mencement; while the ceasing to act together, serves to confirm the recollection, and to recall the attention to the notice of the dissolution. Persons who commence partnership in relation to a particular business, may, afterwards, extend it to some other objects, or to some particular business or adventure, pro tanto, and how is the world to know whether they act according to the terms of the original contract or not ? The sign affixed to the building where the manufactory was carried on, was no notice, for it did not express the nature of the copartnership. There is no evidence that the note was drawn, in the manner it appears to be, by the direction of Bogert. He naturally supposed that it was done so by the desire of C. C. Roosevelt & Co. The true question is, whether there was any collusion between the plaintiff or his agent, and C. I. Roosevelt, to defraud C. C. Roosevelt. Knowledge of the fact, that the purchase was made for the individual account of C. I. R. and that he pledged the copartnership funds without the consent of his copartner, is essential to prove the covin or fraud. This is the doctrine to be collected from the cases on this subject. (1) Suppose a check drawn in the copartnership name on one of the banks, could the payment of the check be contested on the ground, that C. I. R. had drawn it on his own account without authority from his copartner? Certainly not ; for C. I. R. had authority to issue negotiable paper in the copartnership name. If a partner has power (1) Watson, 202; Ex parte Bonbonus, 8 Tesey, jun., 540 ; Swann v. Steele, 7 East, 210. LIVINGSTON V. ROOSEVELT: ETC. EOGERS V. BATCHELOR. 413 to issue negotiable paper, in the name of the partnership, such power is unlimited ; and it is, pro tanto, a general partnership. The person who receives the partnership paper, is not bound to inquire, for what account it is given. Again, a partnership is created or grows by reputation, and a fortiori, an extension of it may be created by reputation. Ad- mitting that the partnership was originally limited, yet by the acts of the parties it may become unlimited. Indeed, there can be no limited partnership, where one party has power to sign and endorse notes with the names of the copartnership. If C. C. Roosevelt meant to avoid responsibility on notes not given in the course of the copartnership business, he should have guarded against it, by stipulating that one partner should not endorse notes in the name of the firm. Whether the partnership be general or special, one partner has no authority to bind his copartner for anything not connected with the copartnership business. But the only question is, whether there was fraud or covin ; the English decisions go on the ground of fraud, (1) and the jury are the proper judges how far fraud is made out by the evidence. Harrison, in reply. If fraud invalidates the security which has been taken, and knowledge in the party receiving it, is evidence of that fraud, it must be conclusive evidence. It is the duty of every person who takes paper signed or endorsed by a copartnership name, to inquire and know whether the party who gives it, has authority to sign the name of the firm. If, from all the evidence, the jury ought to have inferred tliat the plaintiff or his agent did know, that the note was given and endorsed for the individual debt of C. I. R., the verdict ought to have been set aside. That the brandy was purchased to send to the West Indies, to be converted into raw sugar for the use of the copartnership, is an idea not warranted by the evidence. The written evidence in this case ought to outweigh the testimony of Bogert, the agent, who may naturally be supposed to have some bias in favor of his principal. The making out of the bill of parcels in the name of C. I. R. was a sufficient intima- tion of the plaintifi"'s agent, that the purchase was for the individual partner, and he ought to have inquired of C. C. R. whether he con- sented to give the note. The peculiar manner in which the note was drawn, was of itself sufficient to put Bogert on the inquiry, as to its being a copartnership transaction ; and the oath of the principal at the (1) Shireff c. Wilka et al., 1 East, 43; Arden v. Sharpe, 2 Bspinasse, 523. 414 POWEE OF ONE PAETNER TO BIXD THE FIEM. custom-house, that the sale was to C. I. R. ought to be held conclusive evidence of the fact. If an advertisement in a gazette, is sufficient evidence of the dissolu- tion of a copartnership, it ought to be evidence also of a limited nature. The transactions at the bank were perfectly consistent with a limited partnership. Reputation is prima facie evidence only of a partnership, but it must be connected with acts to establish the fact. Mere reputa- tion is not enough to create a partnership ; if it were, it would be easy for one man to make another liable, as a partner, without his knowledge or consent. In the case ex parte Bonbonus, 8 Vesey, jun., 540, the Lord Chan- cellor said, " that if under the circumstances, the party taking the paper could be considered as advertised, in the nature of the transaction, that it was not intended to be a partnership proceeding, it should not bind them." The nature of the purchase, in the present case, and the circumstances attending it, were certainly sufficient to advertise the plaintiff or his agent, that this was not a partnership transaction. If the doctrine contended for, on the part of the plaintiff, should be established, there must be an end altogether of limited partnerships. In every partnership, each partner must be authorised to use the name of the firm in relation to the copartnership business. If the parties were to agree that they should sign their names separately, this would not be binding on third persons, and if one partner should use the name of the firm, in the course of the partnership business, the partnership would be bound, though done in violation of the agreement between the partners. Van Ness, J. Whether the plaintiff knew that the debt for which he received the partnership security, was the private debt of Cornelius I. Roosevelt, is a question of fact, and we are called upon to decide whether, if that question had been submitted to the jury, they ought not to have found for the defendant. The partnership was special, being limited to the sugar refining business in the city of New York, where all the parties resided. At the time the partnership was formed, notice was given for two weeks successively, of the nature and extent of it, in two daily papers, published here, both of which the plaintiff took during that period. The house where the business was to be transacted was designated in the notice, and " Sugar House," in large letters, was painted upon it. The defendant, Cornelius C. Roosevelt, at no time consented, or was privy to any extension of the connexion, beyond the particular object for which it was originally formed. The article sold, LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOR. 415 and which was the consideration of the note in question, had no relation to the business of sugar refining, and it would, therefore, never have occurred to any one, that Cornelius I Roosevelt purchased it on the partnership account, unless he had expressly declared that to be his intention. There was nothing, either in the acts or declarations of Cornelius I. Roosevelt, from which the plaintiff's agent could infer, that he bought the brandy for the use of the company. The contract was made with Cornelius I. Roosevelt, without the knowledge or consent of his copartner. He gave his note at his own house (and not at the counting-house of the company,) for the payment of it, with the endorse- ment of the firm, as collateral security ; and the note, in this form, was received by the plaintiff, without objection. The manner in which the note was drawn is inconsistent with the idea of a sale to the firm. It is not hazarding anything when I say that, where a sale has been made to partners, it would be a perfect novelty among merchants to receive the note of one of them endorsed by the firm. There could be no possible use in it. No additional security was derived from its being given in that form. After the contract for the sale, but before the delivery of the note, the plaintiff himself (and this is the only instance of his personal agency in the whole transaction) made oath at the custom-house, that the sale was made to Cornelius I. Roosevelt ; thus giving the highest, most solemn and satisfactory evidence of his under- standing of the sale, at the time when it was made, and which is in exact coincidence with all the documentary and other evidence in the cause, even with that of Mr. Bogert, which I shall presently notice. Upon this evidence, I am persuaded, the jury would have found, that the sale was made to Cornelius I. Roosevelt, in his individual capacity ; that this was known to the plaintiff; and, consequently, that, originally, he only was liable for the payment of it. This court has often decided, that one partner cannot pledge the partnership security for what is proved to be the separate debt of such partner, without the consent or privity of the other partners. (Livingston v. Hastie and Patrick, 2 Caines, 246 ; Lansing v. Gaine and Ten Eyck, 2 Johnson, 300.) In the case of Dubois v. Roosevelt, decided in May term, 1808, and which is not reported, the facts were almost precisely similar to those I have above stated. The court, in that case, were unanimously of opinion, that the plaintiff could recover, without overruling the principles laid down in Livingston v. Hastie and Patrick, and Lansing v. Gaine and Ten Eyck. The only difference between these two cases and the pre- sent, is that which may be supposed to arise out of the evidence, that the defendants were considered to be general partners at two of the 416 POAVER OF ONE PARTNER TO BIND THE FIRM. banks, and by several merchants in this city, who were witnesses on the trial, and the testimony of John G. Bogert, the plaintiflf's agent. As to the first, if mere reputation is sufficient to enable one of several special partners to charge another in a case circumstanced as this is, then there is an end, as to third persons, of all limited partnerships. In point of fact, here was not a general partnership. Of this, notice was given in a manner best calculated to apprise the community of it. What other precautionary measure could the defendant have taken ? After this notice, not a single act at any time appears to have been done by Cor- nelius C. Roosevelt, from which a well-founded reputation of a general partnership could have originated. Besides, this reputation, at most, is but presumptive evidence of a general partnership, and the force of this is completely destroyed by direct and positive proof, that the part- nership was limited to a particular object. Next, as to the testimony of Bogert, which was much relied upon. On a critical examination of his evidence, it will, I think, be found to operate against the plaintiff. He says, in the first instance, that he understood the sale of the brandy to be " to and for the partnership;" but he adds immediately afterwards, " that nothing was said on whose account the purchase was made;" but "that the partnership security was to be given for it." He goes on to state, " that the sale was not completed until he had satisfied himself, by ijiquiries, that the defen- dants were partners." Now the fact stated by Bogert, that the part- nership engagement was to be given, is the only one from which it can be inferred (for he nowhere says so in express terms), that he even sup- posed the sale was made to the company ; and when we see how that was in fact given and received, without objection, and take into view the other facts in the case, the fair conclusion is, that he considered the contract as made with Cornelius I. Roosevelt, individually, and that all he was solicitous about, was to obtain the partnership security for the payment of it. If Bogert really conceived this to be a sale to the firm, is it not very singular that he never came to an explanation to that effect with Cornelius I. Roosevelt ? Yet it does not appear, that during the whole negotiation, a syllable was uttered as to whom, or on whose account it was made ; and this is the more surprising, when it appears that he made inquiries to satisfy the doubts and suspicions which he entertained of the existence of a partnership at all. Why, when making these inquiries, did he not apply to Cornelius C. Roose- velt, whose security he wished to obtain, and who was the only one able to give him the correct information ? I confess that I am not satisfied with this testimony ; and, after a careful review of all the circumstances, LIVINGSTON V. EOOSEVELT: ETC. ROGERS V. BATCHELOR. 417 I cannot perceive how the jury could avoid saying that the plaintiff made the sale to Cornelius I. Roosevelt, in his private capacity ; and that the debt, for which the endorsement of the firm was taken, was his private debt, contracted without the concurrence of Cornelius C.Roose- velt, expressed or implied ; and if they had so found, it is conceded, that the partnership security, as against Cornelius C. Roosevelt in judgment of law, is fraudulent and void. But there is another equally fatal objection against the plaintiff's right to recover. The distinction between general and specia? partnerships, is probably coeval with their existence. A general rule applicable to both is, that in transactions relating to the joint concern, one of several partners may bind the rest. He may sign notes, endorse or accept bills for the common benefit, &c., without applying to the rest in every particular case. But this authority of a single partner has its limitation. For- merly, as appears by the case of Pinkney v. Hall (1 Salkeld 126 ; S. C. 1 Ld. Raymond, 175), it was probably less extensive than at this day. One partner of the concern has no authority to pledge the partner- ship goods, for his own debt, nor can he bind the firm to any engage- ments known at the time to be unconnected with, and foreign to, the partnership. This has not only been so settled by this court, but now is, and always has been the established law in England. Not an adjudged case, nor, I believe, a single dictum, can be found the other way. This will appear from most of the cases which I shall presently have occa- sion to mention for another purpose. In speciaZ partnerships, however, this power of the individuals composing them, is restricted to still nar- rower limits, and can only be legally exercised within the compass of that particular business to which the partnership relates. It is as cir- cumscribed as the partnership itself. It is, therefore, analogous to that which is conferred on an agent appointed for a special purpose, who, if he exceed his authority, cannot bind his principal. (1) This analogy is complete, in all cases, where third persons have dealings with a special partner, with notice that he is such. And, accordingly, it has been re- peatedly ruled that, whenever such a partner pledges the partnership funds, or credit, in a transaction which is known to be unconnected with, and not fairly and reasonably within, the compass of the partnership, it is, as to the other partners, fraudulent and void. They, however, to entitle themselves to the protection of this rule of law, must not do, or consent to, or suffer anything to be done, which may hold them out to (1) Fenn and another v. Hiirrison and others, 3 Term, 757. VOL. I. — 27 418 POWER OP ONE PARTNEB TO BIND THE FIRM. the world as general partners ; and it would always be prudent and proper (though I will not say it is indispensably necessary) to give public notice to the community, that the partnership is special, and of the particular species of trafBc or business to which it is confined. (Willet V. Chambers, Cowper, 814 ; De Berkom v. Smith and another, 1 Espi- nasse, 29 ; Arden v. Sharpe and another, 2 id. 524 ; Shirreff and another v. Wilks. 1 East, 48.) In the case. Ex parte Bonionus (8 Vesey, Jr., 540), Lord Eldon expresses himself thus : " I agree it is settled, that if a man gives a partnership engagement in the partnership name, with regard to a transaction, not in its nature a partnership transaction, he who seeks the benefit of that engagement must be able to say, that though in its nature not a particular transaction, yet there was some authority beyond the mere circumstance of partnership, to enter into that contract so as to bind the partnership ; and then it de- pends upon the degree of evidence." Nothing has been done, in the present case, to impair the claim to the benefit of this rule, iphe busi- ness, as far as it relates to Cornelius C. Roosevelt, has been carried on, for aught that it appears to the contrary, conformably to the terms upon which the partnership was formed. He has done no act to countenance a belief, that these terms were different from those specified in the notice. He was a stranger to the purchase of the brandy ; he had no agency nor interest in the shipment of it afterwards ; it was manifestly an article unconnected with the objects of the partnership ; nor was there anything in the nature of the transaction, or the manner of con- ducting it, to justify a belief of the contrary. It has indeed been urged, that it might have been purchased for the purpose of exportation to the West Indies, and of bringing back from thence a cargo of raw sugar, to be refined in New York, on the partnership account. But the suggestion is not supported by the evidence. The whole transaction wears a different aspect. Suppose this had turned out to be a lucrative speculation. Certainly Cornelius C. Roosevelt would have had no claim to a participation in the profits. Therefore, there is no justice in impo- sing upon him the whole of the loss. Had it been submitted to the jury to decide whether the purchase of this brandy was connected with the business of the partnership, I think they would have decided in the negative. There is no collision between what I have said and the cases Ex parte Bonbonus (8 Vesey, jr.) and Swan v. Steele (7 East, 210). As I under- stand these cases, they were decided upon the very principles which I have attempted to establish. To borrow money, and to negotiate bills and notes, are as incidental to, and as usual and necessary in a special, LIVINOSTON V. BOOSEVELT: ETC. EOGERS V. BATCHELOR. 419 as a general partnership. Business of this sort falls equally within the scope of the one as the other ; and in the absence of all fraud, the authority of the individual partners to bind the company is the same in both. This is one of the risks common to all kinds of partnerships ; and it would be repugnant to commercial policy and convenience to make any distinction, in this respect, between them. The reason why this would be the tendency of such a distinction, is obvious. In all money concerns, and negotiations in commercial paper, there is nothing upon the face of them foreign from a limited partnership ; nothing to awaken suspicion or excite inquiry; and if one partner, in the course of business, abuse the special trust in him, innocent third persons might suffer. My opinion is, that there ought to be a new trial, with costs, to abide the event of the suit Thompson, J., and Yates, J., were of the same opinion. Spencer, J. It cannot, I think, be pretended that, in point of fact, the plaintiff knew, when the brandy was sold, that it was on the private account of Cornelius I. Roosevelt. Mr. Bogert is explicit in his testi- mony, that the sale was on the credit of the partnership ; that he knew of no limitation of the partnership, but, after inquiry, believed it to be general. The circumstances which are supposed sufiBcient to render the plain- tiff chargeable with notice of the limitation of the partnership, appear to me to be susceptible of easy explanation. From the evidence, in relation to the publication in the gazette, considering the lapse of time from the insertion of the notice, and the fact that the plaintiff was not engaged in commerce, with the further fact, that merchants who took both the papers were ignorant that the partnership was special, and had not attended to the notice, my mind is decisively impressed that the plaintiff cannot be supposed ever to have retained it in his recollection. The bill of parcels and form of the note, which were the acts of Cross, ought, on no principle, to excite suspicion, for Cross was not the agent of the plaintiff, and, as he has testified, proceeded without any instruc- tions from the plaintiff or Mr. Bogert, in making out the bill and in taking the note. The aflBdavit at the custom-house was made after the sale by Bogert ; it is, therefore, impossible that he should have given information to the plaintiff, that the sale to Cornelius I. Roosevelt, con- trary to the fact to which he testifies, that the sale was to the firm and 420 POWER OF ONE PAETNER TO BIND THE FIRM. ^__ ^ _^_^ on its credit. Tlie aflfidavit was substantially true, and ought to be construed in reference to the object to be affected by it. As it regarded the United States, it was perfectly immaterial whether the affidavit stated a sale to one or all the vendees ; the object was to identify the goods, and obtain a debenture. I cannot but consider, for the reasons which I have given, that it would be contrary to the facts in the case, to suppose that the plaintiff knew that there was a special limited partnership when the brandy was sold, and, with this knowledge, is making an attempt to charge one of the firm for articles sold to the other ; it would be neither more nor less than presuming a fraud, with- out a fact to support it. The case ought to be tested by other principles, and if on those prin- ciples, the defendant, Cornelius C. Roosevelt, is not responsible, then the plaintiff must submit to his loss. I recognise the authority of the cases of Livingston v. Hastie and Patrick, and Lansing v. Gaine & Ten Eyck, and fully assent to the law, that where a person takes a partnership security from one of a firm, knowing it to be for his private concerns, and disconnected with the objects of the partnership, the other partner is not chargeable, and he is not responsible, in consequence of the collusion and fraud. I hold it to be equally well settled, that if a person, in the course of trade, bona fide takes a bill, uninformed that it was given without the know- ledge of the other partner, and not in relation to the partnership con- cerns, whether the partnership be a limited one or general, the whole firm will be bound. The case of Swann and others v. Steel and others, 7 East, 210, and Ex parte Bonbonus, 8 Vesey, jr., 540, though not authori- tative here, justify the position I have made. These cases decide, that a bona fide holder of a bill, for a sufficient consideration, and without notice that it was given by one partner for an individual debt not re- lating to the partnership, might recover against all the partners, though the bill was in fact given by one of them for a debt not relating to the partnership. But whatever might have been the objects of the de- fendant's partnership, in its inception, it appears to me, that the evi- dence in the case shows, conclusively, that by their own facts, the repu- tation that it had become general was well warranted. The defendants, from the commencement of the partnership, kept accounts at two of the banks in the city, and had there been considered as general partners ; the entry of the partnership firm was in the hand- writing of C. I. Roosevelt, in the name of the firm ; credit was given to the partnership on the responsibility of C. C. Roosevelt, and nothing was known, at either of the banks, of a limitation of the partnership LIVINGSTON V. BOOSEVELT: ETC. EOGEES V. BATCHELOR. 421 business, until after its dissolution. In addition to this, the presidents and cashiers of the two banks, several merchants of extensive business, and brokers, testified, that they knew of the partnership, but never heard of any limitation, until after the dissolution. It cannot be denied that a special partnership may become general, from the acts of the parties in the conducting of their business, as well as from their spe- cific arrangements. It is impossible to believe, that C. C. Roosevelt did not know of the mode adopted in carrying on business with the banks, and that he was there regarded as a general partner ; and if he did, then it seems to me to follow, that he aided and assented to his being considered a general partner. It is probable that the reputation of a general partnership proved so fully, and not attempted to be con- tradicted, had its origin in the mode the defendants adopted, in carry- ing on their business at the banks; and certainly the authority devolved on C. I. Roosevelt to negotiate paper at the banks, warranted the repu- tation, and renders both the defendants liable. The case seems to consider the plaintiff as the principal, and Bogert as the agent, in the sale of the brandy, but I cannot see on what facts this is founded. The legal property of the brandy was in Bogert, and the plaintiff was merely a creditor beneficially interested in the proceeds, without any authority to control or direct the disposition of the property. But it is not neces- sary to scrutinize or enlarge on this part of the case, as it will not change my opinion, be the fact either way. One of two innocent men must suffer ; I cannot hesitate in saying, that the person who has been so incautious in adopting a partner, deficient in prudence or funds, who has given to that partner, the management of the concerns, who has stood by, and permitted him to raise money unlimitedly on his credit, by pledging the name of the firm, and who has thus given his aid to the reputation which certainly existed, and on which the credit in this case was given, must be responsible. Kent, Ch. J. The plaintiff cannot succeed in this case, if the facts warrant the conclusion, that he took a partnership security for a debt which he actually knew, at the time, was the private debt of the par- ticular partner. Nor can he succeed, if this actual knowledge be not made out, provided the subject-matter of the contract, and the nature and circumstances of the copartnership, were sufficient to charge him with constructive or legal notice of the fact. Believing these proposi- tions to be correct, I shall examine the case to see if, according to them, the plaintiff can be permitted to retain the verdict. 422 POWER OF ONE PARTNER TO BIND THE FIRM. 1. The law is well settled, that if a person takes a partnership security from one of the partners, for what is known, at the time, to be the particular debt of the partner who gives such security, the copart- nership is not holden. The cases in this court of Livingston v. Hastie & Patrick, and of Lansing v. Gaine & Ten Eck,(l) were decided upon this ground ; and the cases in the English courts, of Arden v. Sharpe & Nelson, Shirreff v. Wilks, and the case Ex parte Bonbonus in Chan- cery,(2) all recognise the same principle. The knowledge in the creditor, that the partnership name is given for the individual debt of one partner, renders the transaction fraudulent and void in respect to the copartnership. In the present case, the jury were told, that by law the plaintiif was entitled to recover. According to my view of the case, it ought to have been observed to the jury, that the weight of evi- dence was in support of the allegation, that the plaintiff understood, at the time, that he was contracting a debt with Cornelius I. Roosevelt, in his individual capacity, and that, therefore, the plaintiff was not entitled to recover. Let us cast an eye over the material facts. The note in question was given for 20 pipes of brandy, sold to C. L Roosevelt, and there is no evidence in the case, that Cornelius C. Roosevelt & Co. ever dealt in the article of brandy, or carried on any business in the grocery line, or were concerned generally in trade. There was no evidence that the firm ever held themselves out to the world, as being engaged in any other concern than the sugar-refining business, nor that they ever did in fact step beyond that limited concern. The plaintiff was then unauthorized to conclude, that this purchase was upon a partnership account. Prima facie, it certainly was not, and it lay with him to show what colour he had for a contrary inference, and if he has shown none that is reasonable, he is not well founded in his attempt to charge this debt upon the firm. The intrinsic circumstances of the transaction are sufiicient to show, that the plaintiff knowingly dealt with C. I. Roosevelt, in his private capacity, and there can be no doubt but that, as a matter of fact, the purchase of the brandies was on the separate account of C. I. R., and that the partnership was not interested in the purchase. The brandy was not only purchased by C. I. Roosevelt, but shipped by him for the West Indies, on board of a vessel owned by him individually, and with other goods purchased and shipped by him on his private account. He drew this note, in his own name, for the purchase-money, in favour of the company, and then endorsed the name of the firm, and delivered the (!) 2 Caines, 246, and 2 Johnson, 300. (2) 2 Espinasse, 524; lEast, 40, and 8 Vesey, jun., 640. LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOR. 423 note, 80 endorsed, to the plaintiif. What can be plainer than the lan- guage of this fact, that the note was drawn, and received for a private debt, and that the firm was only given as a security ? Was it ever known before, that one partner contracting a debt, in behalf of the co- partnership, took this circuitous mode to give the note of his house ? There could be no possible use in it, and merchants are not accustomed to take such indirect methods in doing business, without a motive. If it was understood to be the proper debt of the company, why was the individual partner bound directly and absolutely for the money, and the company only contingently, in the character of endorsers ? Why did the plaintiff, when he sold to a company, take upon himself the burden of making the first demand, at the precise time of payment, upon the individual partner, and of then using due diligence in giving notice so as to fix the endorsers ? And, lastly, why did the partner himself assume the responsibility of being first singly answerable for the debt, and of being obliged to pay it or to lose his credit before the company were resorted to ? These questions cannot be answered, as it strikes me, but upon the supposition, that the seller, as well as the purchaser, understood that the sale was on a private, and not on a partnership ac- count. The agent of the plaintifi" sufficiently explains, why the note was taken in this shape, when he says that " the partnership engage- ment was to be given for the brandies." There are other facts which go to prove that the brandies were under- stood to be sold to C. I. Roosevelt, and not to the company. The note was called for and given at the dwelling-house of 0. I. Roosevelt, not at the counting-house of the firm; the bill of parcels was made out in the name of C. I. Roosevelt only ; the brandy was entered at the custom- house in his name, and the plaintiff made oath there, that the sale was to C.I. Roosevelt. This last fact ought to have great weight in form- ing our conclusions upon the transaction. The affidavit was made be- fore the note was given, and when the intention of the parties must have been well understood and recollected. It was a solemn act, in which we must suppose, that the fact of the sale, and to whom, was stated with caution and precision. It was made by a person who was perfectly competent to scrutinize and feel the force and import of ex- pression, and who must have distinguished quickly and accurately between a sale to an individual, and a sale to a mercantile company. The affidavit is conclusive, that the plaintiff did not understand there was any other purchaser, than the single individual, and he must have obtained his knowledge of the sale, either from his own view of the act or from the information of his agent. It appears then to me to be a 424 POWER OF ONE PARTNER TO BIND THE FIRM. consequence not to be resisted, that the note was drawn in the shape which we see it, in order to obtain the security of the firm to a debt, which both the contracting parties knew to be the proper debt of the single partner. The written testimony, from which this conclusion is drawn, weighs much more in the scale of evidence, than the parol testimony (even if opposed to it) of the agents of the plaintiff, given two years and a half after the transaction took place. John Cross says, that the bill of par- cels was made out as C. I. Roosevelt directed, and that he received no directions from the plaintiff, " nor does he recollect" receiving any from John G. Bogert, his agent, to make out the bill; That Bogert directed him to call for the note, " but gave him no direction relative to the form of it," and when it was delivered, neither Bogert, nor the plaintiffs, made any objection to the form of it. This negative testimony then proves nothing. Bogert was the principal agent of the plaintiff in the transaction, and he says that he understood the purchase was on a part- nership account, although he declares that " nothing was said relative to whose account the purchase was made." It was then a latent infer- ence which he had no authority to draw ; and it is a little remarkable, that if it was understood from the beginning to be a partnership pur- chase, that the agent should say, " that the sale was not completed until he had satisfied himself by inquiries, that the defendants were partners, and that the partnership engagement was to be given for the brandies." The construction which I give to this parol testimony, goes in confirma- tion of the written proof; and even if any part of it should be deemed repugnant, it cannot be compared to the former, either in judgment of law, or in its power to produce conviction. There is one circumstance in the case not well explained. It states that the sale of the brandies was made by Bogert, as agent of the plain- tiff. This fact appears to be conceded throughout the case, and Bogert himself testifies that he acted as the plaintiff's agent; and yet it is fur- ther stated, that the brandies were in the hands of Bogert, as adminis- trator of one Anthony Carroll, deceased, by whom the brandies were im- ported, and that they were sold in part satisfaction of a debt due from that estate to the plaintiff. It is possible that Carroll and the plaintiff had been concerned together as partners in importing the brandies, or that Carroll acted nominally as owner, and really as agent of the plain- tiff, on whose capital the business was conducted, for the afiSdavitof the plaintiff at the custom-house, (and which was made to obtain the usual debenture) must have been in the character of purchaser from Carroll. But without being able to solve this fact, it is sufficient to observe, that LIVINGSTON V. ROOSEVELT: ETC. ROQEKS V. BATCHELOR. 425 upon this case the Court must consider the plaintiff as the real vendor of the brandies, whatever may have been the form which the title had previously assumed. He was considered by all parties, both at the trial and upon the argument, as the vendor, and he took the note as principal, for a debt due to him from Roosevelt. The question of no- tice, therefore, applies to him as an original party to the sale, and though he may have chiefly efi'ected the sale, and took the note, by means of Bogert, his agent, yet in all such cases notice to the agent is notice to the principal. I am, therefore, of opinion, upon the first point, that the verdict is against evidence. The inevitable inference from the testimony appears to me to be, that the plaintiff or his agent actually knew that the pur- chase was not a partnership concern, and that they required a partner- ship endorsement, by way of security. Instead of a pointed direction in favor of the plaintiff, the justness of this inference ought to have been submitted to the jury. 2. But if the plaintiff did not in fact know that the purchase was made by C. I. Roosevelt upon his own account, and acted under the mistaken impression that it was a partnership business, still the firm were not bound by the endorsement, because the facts disclosed amounted to constructive notice, or notice in law. The partnership between the defendants was confined to the sugar-refining business. It had nothing to do with the purchase or sale of brandies. The partners had given timely and due notice in the public gazettes, of their limited engagement, and had designated the place where their business was to be carried on. Every precaution was taken which the nature of the case admitted, to guard the public against misapprehension. If per- sons were, afterwards, under a mistake as to the confined nature of the partnership, it must have been owing to some dealings of the copartner- ship, inconsistent with its declared object, or to gross negligence in those persons, in not seeking information at the proper sources. The understanding of particular merchants, that the defendants were gen- eral partners, was of no avail, without showing that the house had done some act to mislead, or given some reasonable cause for that impression. But there is no evidence before us, according to my view of the case, that the partnership ever misled the public, by a single act, or trans- acted any business which had not immediate connexion with its limited concern. The habit of keeping partnership accounts with the banks, I do not consider as forming an exception to this conduct. That habit was perfectly consistent with their particular and avowed business, and it 426 POWER OF ONE PARTNER TO BIND THE FIRM. was, besides, a private matter, not in the way of dealing, and which the public were not to know. The checks and other proper negotiations with the banks, were generally, if not entirely, drawn and conducted by C. I. Roosevelt, and it does not appear that his partner ever knew of or rectified a single transaction with the banks. What those transac- tions were ought to have been explained, and not left, as they are now, by the case, in total uncertainty. Each partner had a power to draw checks, in the partnership name, for the partnership moneys in the bank, because it is incident to every partnership, that each partner should have a power to possess and dispose of the partnership moneys and stock. Each partner, in limited, as well as in general partnerships, can draw checks and give notes, but it does not follow from thence that pa- per given by a partner, on his private account, would bind the firm, be- cause here the authority of the partner fails ; there must, then, be something in the nature of the debt, or in the nature or conduct of the copartnership, to make the other partner responsible. There are cases which go the length of this general proposition, that one partner cannot pledge the partnership funds, nor make a valid partnership engagement for his individual debt.(l) Whether this doctrine can be supported, in cases where the person dealing with the partnership is not chargeable with knowledge of the fact, I am not prepared to say. I believe the English law is now understood to be otherwise, and, perhaps, there is no distinction in principle, upon this point, between special and general partnerships, and that the question, in all cases, is a question of notice, express or constructive. All partnerships are more or less limited. There is no one that embraces, at the same time, every branch of busi- ness ; and when a person deals with one of the partners, in a matter not within the scope of the partnership, the intendment of law will be, that he deals with him on his private account, notwithstanding the part- ner may give the partnership name, unless there be some circumstances in the case to destroy that presumption. "If," says Lord Eldon, (2) " under the circumstances, the persons taking the paper can be consid- ered as being advertised, that it was not intended to be a partnership proceeding, the partnership is not bound." Public notice of the object of a copartnership, the declared and habitual business carried on, the store, the counting-house, the sign, &c., are the usual and regular indicia, by which the nature and extent of a partnership is to be ascertained. (1) Pinkrey v. Hall, 1 Salkeld, 126; S. C, 1 Lord Raymond, 175. The cases of Gregeon v. Button, and Marsh v. Vanscmmer, cited in 1 Bast, 49. The opinion of Le Blano, J., in Shireff f, Wilks et al., 1 East, 55, and of Lord Eldon, in Peele ex parte, 6 Vesey, jr., 60i. (2) Ex parte Bonbonus, 8 Vesey, jr., 5i4. LIVINGSTON V. ROOSEVELT: ETC. EOGEES V. BATCHELOR. 42,7 When the business of a partnership is thus defined and publicly declared, and the company do not depart from that particular business, nor ap- pear to the world in any other light than the one thus exhibited, one of the partners cannot make a valid partnership engagement on any other than a partnership account. There must be some authority, beyond the mere circumstance of partnership, to make such a contract binding. Were it otherwise, it would be idle, and worse than idle, to talk of limited partnerships, in any matter or concern whatever, and the law would be re- cognising an association, only to render it a most dangerous illusion to those whom it embraced. Lord Kenyon must have understood the capacity of one partner to bind the rest with this restriction, when he observed in the case of De Berkom v. Smith and Lewis, (1) that persons might be part- ners in a particular concern, and if they did not appear to the world as partners, it should not be suflScient to make them liable in cases not con- nected with the particular business. The law will presume, in all such cases, that the creditor is advertised, that he is not dealing on a part- nership account, and for him to take a partnership engagement, with- out the consent of the firm, is in judgment of law, a fraud upon the firm. Suppose, in the case of a general commercial partnership, a debt was to be contracted by one partner upon the purchase of new lands ; or suppose, in the case of a partnership between two attorneys, in law business, a partnership note was to be given by one of them upon the purchase of groceries or furniture for his family, it could not be supposed by any one that the company would be holden. These would be plain cases of a fraud, practised upon the firm, of which the creditor would be chargeable with notice. When the public have the usual means of knowledge given them, and no means have been suffered by the partnership to mislead them, every man is to be presumed to know the extent of the partnership with whose members he deals. There are, however, qualifications, as to the extent of this doctrine, and some instances occur to me which explain and define its application, and which it may not be amiss to mention. If negotiable paper of a firm be given by one partner, on his private account, and that paper should pass into the hands of an innocent and bona fide holder, as in the case of paper negotiated or discounted at the banks • or if one partner should purchase on his private account, an article in which the firm dealt, or which had an immediate and direct connexion with the business of the firm, in these cases I should think that a difi'erent rule ought to be adopted, and one requiring the actual (1) 1 Bspinasse, 29. 428 POWEB OP ONE PAETKEE TO BIND THE FIEM. knowledge of its being a private, and not a partnership dealing, to be brought home to the claimant. The circumstances of these cases would take away the intendment of knowledge in the creditor. The endorsee, for instance, of such a note, takes it upon the credit of the partnership, and he has no means of knowing, from the paper itself, on what account it was created, and he has a right to presume it was a fair partnership engagement. This is the English rule(l) in those particular cases. But the present case cannot be taken out of the operation of the general rule. The plaintiff had no just ground to infer, that, when he was sell- ing brandy to C. I. Roosevelt, he was dealing -with the sugar-refining company; considering the circumstances under which the partnership was announced and conducted, he was chargeable with notice, that he was not dealing on a partnership account. I am accordingly of opinion, that the verdict is against law and evi- dence, and that it ought to be set aside, and a new trial awarded, with costs to abide the event. New trial granted. (1) Arden v. Sharpe et al., 2 Esp. Rep., 524 ; Wells v. Masterman et al., Id., 731. LIVINGSTON V. ROOSEVELT: ETC. EOGERS V. BATCHELOR. 429 ANDERSON AND WILKINS v. TOMPKINS ET AL. In the Circuit Court of the United States for the District of Virginia and North Carolina. MAY TERM, 1820. Before the Hon. JOHN MARSHALL, Chief Justice of the United States. [reported 1 BROCKENBROUGH, 456-465.] One partner has a right to convey the partnership effects {other than real estate) to the creditors of the firm, in payment of their debts, either to the creditors directly, or through the intervention of trustees, and if the transaction be bona fide, the deed will not be set aside, although the consent of the other partner was not obtained. Where all the partners of a mercantile firm are present, they have a right to be consulted, in giving a preference to particular creditors, but this necessity is dispensed with, if one of the partners is absent in a foreign country. The doctrine that a partner cannot bind his copartner by a deed, does not apply in a case in which the property purported to be conveyed by the deed, is of such a description, that a title to it passes by the mere act of delivery. The mere circumstance of annexing a seal to the instrument of conveyance, in such a ease, does not annul a transfer so consummated. If real property is conveyed to a firm, or to partners in trust for a firm, the members of the firm are tenants in common, and neither party can convey more than his undivided interest in the subject. The complainants, merchants and partners, subjects of the King of Great Britain, filed their bill in this court, alleging that they were creditors of John Tompkins and Adam Murray, late partners in trade, residing in the city of Richmond, and State of Virginia, under the firm of Tompkins & Murray, to the amount of <£715 13s. sterling: that on or about the 28th day of April, 1819, Adam Murray, one of the part- ners, embarked for Europe ; and on the 8th day of May following, John Tompkins, the other partner, without (as was alleged) the knowledge or consent of Adam Murray, executed a deed, of that date, to Nicholas Anderson & Tompkins, citizens of Virginia, purporting to convey to them, not only all the partnership effects, real and personal, of Tomp- 430 POWER OF ONE PARTNER TO BIND THE FIRM. kins & Murray, but also the separate property of Adam Murray, wpon trust; 1st, for the benefit of Sutherland, Colquhoun & Co., and Samuel Christian, all of them citizens of Virginia ; and, 2dly, for the benefit of such of the creditors of Tompkins & Murray, resident within the United States, as should within sixty days, and of such of them, resident else- where, as should within six months from the date of the publication of the trust, by the trustees, exhibit their claims : that prior to the execu- tion of this deed, Tompkins & Murray purchased several lots of ground in the city of Richmond, and certain tracts of land in the State of Virginia : that Adam Murray was proprietor, also, of another lot of ground in the city of Richmond, in his own right, of a share of a tract of land in the state of Kentucky, of a tract of land in Illinois, and of sundry other articles of household furniture, and other personal estate in Virginia : that subsequent to the execution of the said deed of trust, the partnership was dissolved, and after the dissolution, Adam Murray, who has never returned to Virginia, executed several deeds, bearing date the 10th of November, 1819, conveying all his moiety of the part- nership effects, both real and personal, of Tompkins & Murray, and the whole of his own individual property, in Virginia, to James Dunlop, of London, in trust for the benefit, 1st, of James and John Dunlop, to secure a debt due from the firm of Tompkins k Murray ; 2dly, in satis- faction of a debt due from the same firm to Leslie & M'Indoe ; and 3dly, to secure the debt due to the complainants, Anderson & Wilkins. This suit was instituted for the twofold purpose of establishing the deed of the 10th of November, 1819, executed in England, by Adam Murray, and to set aside the deed of the 8th of May, 1819, executed by John Tompkins. The validity of the last-mentioned deed was contested, as well as to the complainants, and the other creditors of Tompkins & Murray, who failed to exhibit their claims within the time prescribed therein, as to Adam Murray, on several grounds : 1st, it was contended, that during the existence of the firm, Tompkins could not, without authority from Murray, dispose of the partnership effects, or any part thereof, by deed : 2dly, that the deed was void, because it gave a pre- ference to Colquhoun & Co., and Christian, to all other creditors, with- out consulting with Murray : 3dly, that it was void, because it purported to convey the separate property of Murray, over which Tompkins had no control. On the 12th of June, 1820, the following opinion was delivered by Marshall, C. J. This suit is brought to establish a deed, made by LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOR. 431 Adam Murray, a partner of the house of Tompkins & Murray, in November, 1819, while in England, conveying his moiety of the pro- perty of that house, to certain creditors of the firm. On the 29th of April, 1819, Murray had embarked for England, leaving all the efi"ects of the company in the hands of John Tompkins, the partner remaining in this country, who continued, for a short time, to conduct the business of the concern. The pressure of their affairs was such, that in May, the house stopped payment, and Tompkins, for himself and his partner, conveyed all the effects of the company, and also the separate property of himself and partner, to trustees for the payment, first, of certain creditors named in the deed, and then of those who should bring in their claims, the American creditors within sixty days, the foreign creditors within six months. As the deed under which the plaintiffs claim, can operate on that property only, which is not conveyed by the first, it will be proper, first, to inquire into the legal extent of the deed made by Tompkins. That deed, as has been already stated, purports to convey the whole property of the concern, and the private property of the partners. That property consisted of the effects of the partnership for sale, of real pro- perty, and of debts. I shall consider the deed in its application to each of these subjects. First. — The goods in possession for sale. The convenience of trade requires, that each acting partner should have the entire control and disposition of this subject. It would destroy copartnerships entirely, if the co-operation of all the partners were necessary to dispose of a yard of cloth. It is, therefore, laid down, in all the books which treat on commercial transactions, that with respect to all articles to be sold for the benefit of the concern, each partner, though the others be within reach, has, in the course of trade, an abso- lute right to dispose of the whole. " Each," says Watson, ''has a power to dispose of the whole of the partnership effects." This is a general rule, resulting from the nature of the estate, and from the objects for which men associate in trade. They are joint tenants, without the right of survivorship, they are seized fer mi et per tout, and they associate together, for objects which require that the whole powers of the partnership should reside in each partner who is present and acting. These general doctrines are universal, and have not been contro- verted in this case ; but it is contended, that they do not authorize the deed made by Tompkins, because, 1st, This is not an act in the course 432 POWER OF ONE PARTNEB TO BIND THE FIRM. of trade, but is a disposition of the whole subject, and a dissolution of the partnership 2d. It is a preference to particular creditors, in making which, Mur- ray ought to be consulted. 3d. It is by deed. It will be readily conceded, that a fraudulent sale, whether made by deed or otherwise, would pass nothing to a vendee concerned in the fraud. But with this exception, I feel much difficulty in setting any other limits to the power of a partner, in disposing of the effects of the company, purchased for sale. He may sell a yard, a piece, a bale, or any number of bales. He may sell the whole of any article, or of any number of articles. This power would certainly not be exercised in the presence of a partner, without consulting him ; and if it were so exer- cised, slight circumstances would be sufficient to render the transaction suspicious, and, perhaps, to fix on it the imputation of fraud. In this respect, every case must depend on its own circumstances. But with respect to the power, in a case perfectly fair, I can conceive no ground, on which it is to be questioned. But this power, it is said, is limited to the course of trade. What is understood by the course of trade ? Is it that which is actually done every day, or is it that which may be done, whenever the occasion for doing it presents itself? There are small traders who scarcely ever, in practice, sell a piece of cloth uncut, or a cask of spirits. But may not a partner in such a store, sell a piece of cloth, or a cask of spirits ? His power extends to the sale of the article, and the course of trade does not limit him as to quantity. So with respect to larger concerns. By the course of trade, is understood, dealing in an article in which the company is accustomed to deal; and dealing in that article for the company, Tompkins & Murray sold goods. A sale of goods was in the course of their trade, and within the power of either partner. A fair sale, then, of all or of a part of the goods, was within the power vested in a partner. This reasoning applies with increased force, when we consider the situation of these partners. The one was on a voyage to Europe, the other in possession of all the partnership effects for sale. The absent partner could have no agency in the sale of them. He could not be consulted. He could not give an opinion. In leaving the country, he must have intended to confide all its business to the partner who re- mained, for the purpose of transacting it. Had this, then, been a sale for money, or on credit, no person, I think, could have doubted its obligation. I can perceive no distinction LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOR. 433 in law, in reason, or in justice, 'between such a sale and the transaction which has taken place. A merchant may rightfully sell to his creditor, as well as for money. He may give goods in payment of a debt. If he may thus pay a small creditor, he may thus pay a large one. The quantum of debt, or of goods sold, cannot alter the right. Neither does it, as I conceive, affect the power, that these goods were conveyed to trustees to be sold by them. The mode of sale must, I think, depend on circumstances. Should goods be delivered to trustees, for sale, without necessity, the transaction would be examined with scrutinizing eyes, and might under some circumstances be impeached. But if the necessity be apparent, if the act is justified by its motives, if the mode of sale be such as the circumstances require, I cannot say that the partner has exceeded his power. This is denominated a destruction of the partnership subject, and a dissolution of the partnership. But how is it a destruction of the sub- ject? Can this appellation be bestowed on the application of the joint property, to the payment of the debts of the company ? How is it a dissolution of the partnership? A partnership, is an association to carry on business jointly. This association may be formed for the future, before any goods are acquired. It may continue after the whole of a particular purchase has been sold. But either partner had a right to dissolve this partnership. The act, however, of applying the means of carrying on their business to the payment of their debts might suspend the operations of the company, but did not dissolve the contract under which their operations were to be conducted. Second. — It is said that Murray had a right to be consulted, on giving a preference to creditors. It is true, Murray had a right to be consulted. Had he been present, he ought to have been consulted. The act ought to have been, and probably would have been, a joint act. But Murray was not present. He had left the country, and could not be consulted. He had, by leaving the country, confided everything which respected their joint business to Tompkins; who was under the necessity of acting alone. Third — It is said, this transfer of property is by a deed, and that one partner has no right to bind another by deed. For this a case is cited, which I believe has never been questioned in England, or in this country.(l) I am not, and never have been, satisfied with the extent to which this doctrine has been carried. The particular point decided in it, is cer- tainly to be sustained on technical reasoning, and perhaps ought not to (1) Harrison v. Jackson et al., 7 Term, 207. vol.. I- — 28 434 POWER OF ONE PAETNEE TO BIND THE FIEW. be controverted. I do not mean to controvert it. This was an action of covenant on a deed ; and if the instrument was not the deed of the defendants, the action could not be sustained. It was decided not to be the deed of the defendants, and I submit to the decision. No action can be sustained against the partner, who has not executed the instru- ment on the deed of his copartner. No action can be sustained against the partner, which rests on the validity of such a deed, as to the person who has not executed it. This principle is settled. But I cannot admit its application in a case where the property may be transferred by de- livery, under a parol contract. Where the right of sale is absolute, and the change of property is consummated, by delivery, I cannot admit that a sale, so consummated, is annulled by the circumstance that it is attested by, or that the trusts under which it is made, are described in a deed. No case goes thus far; and I think such a decision could not be sustained on principle. The power of applying all the goods on hand for sale, to the payment of the partnership debts, is, I think, a power created by the partnership, and the exercise of it must be regulated by circumstances. In extraor- dinary cases, an extraordinary use of power must be made. What is called the course of trade, is not confined to the most usual way of doing business, in the usual state of things. In the absence of one of the partners, in a case of admitted and urgent necessity, the power to sell may be exercised by the partner, who is present, and who must act alone, in such manner as the case requires, provided it be exercised fairly. In this case, the fairness of the transaction is not impeached, and, certainly, upon its face, it is not impeachable. So far, then, as respects the partnership effects which were delivered, I have, never, from the first opening of the cause, entertained a moment's doubt. Second. — The next subject to be considered is, the real property comprehended in this deed. Real property, whether held in partnership, or otherwise, can be con- Teyed only by deed, executed in the manner prescribed by statute. This deed can convey no more title at law than is in the person who executed it. Property conveyed to a firm, or to partners in trust for a firm, is held by them as tenants in common, and neither party can convey more than his undivided interest. In this case, where the legal estate was in Tompkins, the whole pro- perty passes at law, by his deed. Where the legal estate was in Murray, the whole property passes at law by his deed. Where the legal estate was in Tompkins & Murray, the property passes in moiety, by their LIVINGSTON V. EOOSEVELT: ETC. ROGERS V. BATCHELOR. 435 several deeds. I do not think that the superior equity of either party is such as to control the legal estate, or the disposition made by law of the subject. Where the legal estate is in trustees, for the use of Tompkins & Murray, the title does not pass at law by either deed, and I have greatly doubted, whether the first deed ought not to be preferred. I have, however, come to the opinion, that this trust ought to follow the nature of the estate at law, and where the trustees have not conveyed before the subsequent deed was executed, that the title to this property, likewise, should pass in moities. The last subject to be considered, is, the debts due to the partner- ship. The right of one of the partners to assign debts which are assignable at law, is admitted, provided that assignment be made in the usual way. The assignment, then, of these debts, is as valid a transaction as the sale of goods on hand, if it be not contaminated by the seal. I should not suppose, on the principle settled in 7 Durnf. & East, that an action could be maintained on this assignment. But I am not satisfied that it does not pass the assignable paper, which the partner had a legal right to assign. I rather think it does. A question of more difficulty respects the book debts. This is a part of the subject on which I have entertained, and still entertain, great doubts. The deed does not pass the debts at law. They are not assign- able at law, but they are assignable in equity, and a court of equity sustains their assignment. At law, the assignment is only a power to collect and appropriate ; and that power is revocable. So far as col- lections were made under it, before it was revoked, I can have no doubt that the money collected was in the trustees. With respect to debts not collected, I have felt great doubts. I consider the power to collect as a contract, which could not be enforced at law. But as Mr. Murray could not convey this property at law, and could only convey it in equity, I have supposed that the prior equity must be sustained, and that these debts, also, pass by the deed of Tompkins. The opinion of the Court, then, is, that the plaintiff's have a right to a decree for a sale of all the real property contained in the deed made by Adam Murray, the legal title to which was in Adam Murray, and to a moiety of the real property, the title to which was in Tompkins & Murray, or in trustees for their benefit ; and the residue of the property passes to the trustees, in the deed executed by John Tompkins. 436 POWER OF ONE PAETNEB TO BIND THE FIRM. N. ROGERS & SONS, plaintiffs in error, v. JAMES BATCHE- LOR & OTHERS, administrators of ABEL H. BUCKHOLTS, DECEASED. In the Supreme Court of the United States. JANUARY TERM, 1838. [reported 12 PETERS, 221-233.] The implied authority of eaeh partner to dispose of the partnership funds extends only to the business and transactions of the partner- ship itself. One partner cannot apply the partnership funds to the discharge of his own separate debt, without the assent, express or implied, of the other partner ; and in such a case, it makes no differ- ence, that the separate creditor had no knowledge, at the time, that the fund was partnership property, Without the consent of the other partner, that partner's title to the property is not divested in favour of such separate creditor, whether he knew it to be partnership property or not. His right depends, not upon his knowledge of its being partnership property, but upon the fact whether the other part- ner had assented to such disposition of it, or not. Mr. Justice Story delivered the opinion of the Court.(l) This cause comes before us on a writ of error to the District Court of the District of Mississippi. The original action was debt brought by the plaintiffs in error (Rogers & Sons), against Abel H. Buckholts, upon the following writing obligatory : "Natchez, Mississippi, $8288.03. On the first day of April next, we promise to pay N. Rogers & Sons, or order, three thousand two hundred and eighty-eight dollars three cents, value received, with interest from date. Witness our hands and seals, this first day of January, 1824. Jno. Richards, [seal.] A. H. Buckholts, [seal.]" Upon such an instrument, by the laws of Missis- sippi, one of the parties may be sued alone ; and accordingly, Richards was no party to the suit. Upon the plea of payment, issue was joined, and, pending the proceedings, Buckholts died, and his administrators were made parties; and upon the trial, a verdict was found for the defendants for the sum of eighteen hundred and twenty-six dollars and seventy four cents, being the balance due to them upon certain set-offs (1) The Reporter's statement is omitted. LIVINGSTOir V. EOOSEVELT: etc. ROGERS V. BATCHELOR. 437 set up at the trial. A bill of exceptions was taken at the trial by the plaintiffs ; and, judgment having passed for the defendants, the present writ of error has been brought to revise that judgment. By the bill of exceptions, it appears, that the defendant set up as a set-off, an account headed " Dr. Messrs. N. Rogers & Son, in account current to first of April, 1830, with John Richards & Co. Cr.," on the debit side of which account were the two following items, which con- stituted the grounds of the objections, which have been made at the argument — "To cash, $1450.46." " To our acceptance of your draft, payable at six months, $3000." To support their case, the defendants offered the testimony of one Rowan ; who testified to a conversation had in his presence, in the year 1830, between Buckholts and one of the plaintiffs, relative to their accounts ; that the accounts then before them were accounts made out by Rogers and Sons, between themselves and Richards & Buckholts, and John Richards & Co., and John Richards & Lambert & Brothers in account with John Richards & Co., Richards & Buckholts, and John Richards ; and an account was made out by Buckholts between Richards & Buckholts, and Rogers and Sons. In the conversation relative to these accounts, Buckholts asked Rogers, if the several items charged in his account had not been received ; and Rogers admitted that they had been. Among other items so admitted, were the above items of fourteen hundred and fifty dollars, forty-six cents, and three thousand dollars. In the conversation about the item of fourteen hundred and fifty dollars, forty-six cents, Rogers admitted that that sum had been received by Rogers & Sons, from Lambert and Brothers, in New York, and that it was part of the proceeds of seventy- four bales of cotton, shipped by Richards and Buckholts to Lambert & Brothers. Very little was said about the item of three thousand dollars. Something was said between Buckholts & Rogers about the right to apply moneys to the payment of John Richard's private debts, Buck- holts contending that he had no right so to do, and Rogers that he had ; but which particular item of payment the witness did not understand. This was all the evidence of payment introduced by the defendants to support the above two items of fourteen hundred and fifty dollars, forty- six cents ; and three thousand dollars. The witness stated, that he had understood, that John Richards had once failed, before he went into partnership with Buckholts. It was admitted by the defendants, that the item of three thousand dollars was for a bill of exchange, drawn in 1825 by Rogers & Sons on John Richards alone. The plaintiffs then introduced a letter, written by John Richards to the plaintiffs, dated at Natchez, June 6th, 1825, (which is in the 438 POWER OF ONE PARTNER TO BIND THE FIRM. record), containing statements relative to a shipment of seventy-eight bales of cotjon, made to Lambert & Co., and to certain payments, which the letter says, " we have left in the hands of Messrs. Lambert, Brothers & Co., to be divided among you and them." It then enumerates, eight thousand five hundred and fifty dollars, " intended to pay my own debts, and on account of Richards & Co., three thousand dollars. It then adds, that the sum of six hundred and fifty-four dollars fifty-five cents had been that day sent to New Orleans to purchase exchange on New York, to be forwarded, and go to the payment of John Richards & Co.'s debt to plaintiffs, and Messrs. Lambert, Brothers & Co. Upon this evidence, the plaintiffs requested the court to charge the jury, that the defendants were not entitled, upon the evidence before them, to the item of fourteen hundred and fifty dollars forty-six cents, as an off-set to the plaintiffs' claim ; and also that the defendants were not entitled, upon the evidence before the jury, to the item of the three thousand dollars, as an off-set, which charge the court refused to give, and in our judgment, very properly refused to give, as it involved the determination of matters of fact, properly belonging to the province of the jury. The defendants then requested the court to charge the jury as follows : " First, that if the jury believe the off-set of fourteen hundred and fifty dollars was the proceeds of cotton of Richards and Buckholts or John Richards & Co., shipped on their joint accounts, then it is a legal off-set to a joint debt, and cannot be applied to an individual debt of John Richards, without proof that Buckholts was himself consulted, and agreed to it. Second, that if the jury believed that the draft of three thousand dollars was paid by Richards and Buckholts or John Richards & Co., or out of the effects of either of those firms, with the knowledge of Rogers & Sons, then in law it is a legal off-set to the joint debt of the said Richards & Buckholts, or John Richards & Co., and cannot be applied to the private debt of either partner, without the consent of the other partner. Third, that the letter of John Richards, read in this case, is not evidence against Buckholts, unless the jury believe that Buckholts knew of the letter, and sanctioned its contents." The court gave the charge as requested : and the present bill of exceptions has brought before us for consideration the propriety of each of these instructions. The first instruction raises these questions : whether the funds of a partnership can be rightfully applied by one partner to the discharge of his own separate pre-existing debt, without the assent, express or implied, of the other partner ; and whether it makes any difference, in LIVINGSTON V. KOOSEVELT: ETC. ROGEBS V. BATCHELOR. 439 such a case, that the separate creditor had no knowledge, at the time of the fact, of the fund being partnership property. We are of opinion in the negative on both questions. The implied authority of each part- ner to dispose of the partnership funds strictly and rightfully extends only to the business and transactions of the partnership itself; and any disposition of those funds by any partner beyond such purposes, is an excess of his authority as partner, and a misappropriation of those funds, for which the partner is responsible to the partnership, though in the case of bona fide purchasers, without notice, for a valuable con- sideration, the partnership may be bound by such acts. Whatever acts, therefore, are done by any partner, in regard to partnership property or contracts, beyond the scope and object of the partnership, must, in general, in order to bind the partnership, be derived from some further authority, express or implied, conferred upon such partner, beyond that resulting from his character as partner. Such is the general principle ; and in our judgment, it is founded in good sense and reason. One man ought not to be permitted to dispose of the property, or to bind the rights of another, unless the latter has authorized the act. In the case of a partner paying his own separate debt out of the partnership funds, it is manifest that it is a violation of his duty and of the right of his partners, unless they have assented to it. The act is an illegal conver- sion of the funds ; and the separate creditor can have no better title to the funds than the partner himself had. Does it make any diflference, that the separate creditor had no know- ledge at the time, that there was a misappropriation of the partnership funds ? We think not. If he had such a knowledge, undoubtedly he would be guilty of gross fraud, not only in morals, but in law. That was expressly decided in Sheriff v. Wilks, 1 East, 48 : and indeed seems too plain upon principle to admit of any serious doubt. But we do not think, that such knowledge is an essential ingredient in such a case. The true question is, whether the title to the property has passed from the partnership to the separate creditor. If it has not, then the partnership may reassert their claim to it in the hands of such creditor. The case of Ridley v. Taylor, 13 East, 175, has been supposed to inculcate a different and more modified doctrine. But upon a close examination, it will be found to have turned upon its own peculiar cir- cumstances. Lord Ellenborough, in that case, admitted that one part- ner could not pledge the partnership property for his own separate debt ; and if he could not do sUch an act of a limited nature, it is somewhat difficult to see how he could do an act of a higher nature, and sell the property. And his judgment seems to have been greatly influenced by 440 POWEE OP ONE PAETNEB TO BIND THE FIEM. the consideration, that the creditor in that case might fairly presume, that the partner was the real owner of the partnership security ; and that there was an absence of all the evidence (which existed and might have been produced) to show, that the other partner did not know, and had not authorized the act. If it had appeared from any evidence, that the act was unknown to, or unauthorized by the other partners, it is very far from being clea.r, that the case could have been decided in favour of the separate creditor : for his lordship seems to have put the case upon the ground, that either actual covin in the creditor should b6 shown, or that there should be pregnant evidence, that the act was unauthorized by the other partners. The case of Green v. Deacon, 2 Starkie, 347, before Lord Ellenborough, seems to have proceeded upon the ground, that fraud, or knowledge by the separate creditor, was not a necessary ingredient. In the recent case Ex parte Goulding, cited in Collyer on Partnership, 283, 284, the vice-chancellor (Sir John Leech), seems to have adopted the broad ground upon which we are disposed to place the doctrine. Upon the appeal his decision was confirmed by Lord Lyndhurst. Upon that occasion his lordship said : " No principle can be more clear, than that where a partner and a creditor enter into a contract on a separate account, the partner cannot pledge the part- nership funds, or give the partnership acceptances in discharge of this contract, so as to bind the firm." There was no pretence in that case, of any fraud on the part of the separate creditor: and Lord Lyndhurst seems to have put his judgment upon the ground, that unless the other partner assented to the transaction, he was not bound ; and that it was the duty of the creditor to ascertain whether there was such assent or not. The same question has been discussed in the American courts on various occasions. In Dob v. Halsey, 16 Johnson, 84, it was held by the court that one partner could not apply partnership property to the payment of his own separate debt without the assent of the other part- ners. On that occasion, Mr. Chief Justice Spencer stated the difference between the decision, in New York, and those in England, to be merely this : that in New York the court required the separate creditor, who had obtained the partnership paper for the private debt of one of the partners, to. show the assent of the whole firm to be bound, and that in England the burden of proof was on the other partners to show their want of knowledge or dissent. The learned judge added: "I can per- ceive no substantial difference, whether the note of a firm be taken for a private debt of one of the partners by a separate creditor of a part- ner, pledging the security of the firm, and taking the property of the LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOE. 441 firm, upon a purchase of one of the partners, to pay his private debt. In both cases, the act is equally injurious to the other partners. It is taking their common property to pay a private debt of one of the part- ners." The same doctrine has been on various occasions, fully recog- nised in the Supreme Court of the same state. And we need do no more than refer to one of the latest, the case of Evernghim v. Ensworth, 7 Wendell, 326. Indeed, it had been fully considered long before in Livingston v. Roosevelt, 4 Johnson, 251. It is true, that the precise point now before us, does not appear to have received any direct adjudication ; for in all the cases above men- tioned there was a known application of the funds or securities of the partnership to the payment of the separate debt. But we think, that the true principle to be extracted from the authorities is, that one partner cannot apply the partnership funds or securities to the discharge of his own private debt without their consent ; and that without their consent their title to the property is not divested in favour of such separate creditor, whether he knew it to be partnership property or not. In short, his right depends, not upon his knowledge, that it was partner- ship property, but upon the fact, whether the other partners had assented to such disposition of it or not. If we are right in the preceding views, they completely dispose of the second instruction. The point there put involves the additional ingredient, that the separate debt and draft of Richards for the three thousand dollars, was, with the knowledge of the plaintiffs (Rogers & Sons), paid out of the partnership funds ; and if so, then, unless the payment was assented to by the other partner, it was clearly invalid, and not binding upon him. It is true, that the draft of three thousand dollars was drawn on Richards alone : and, therefore, it cannot be presumed, that the plaintiffs had knowledge, that it was accepted by the partnership, or paid out of the partnership funds. But the ques- tion was left, and properly left to the jury to say, whether the plain- tiffs had such knowledge ; and if they had, unless the other partner consented, the payment would be a fraud upon the partnership. With the question, whether the jury have drawn a right conclusion, it is not for us to intermeddle. It was a matter fairly before them upon the evidence ; and the decision upon matters of fact was their peculiar province. The third instruction admits of no real controversy. The letter pur- ports to be written by Richards alone, and not in the name of the firm, or by the orders of the firm. It embraces topics belonging to his own private affairs, as well as to those of the firm. Under such circum- 442 POWER OF ONE PARTNER TO BIND THE FIRM. stances, not being written in the name of the firm, it cannot be presumed that the other partner had knowledge of its contents, and sanctioned them, unless some proof to that eifect was offered to the jury. If the other partner did not know of the letter or sanction its contents, it is plain, that he ought not to be bound by them ; and such was the instruc- tion given to the jury. Upon the whole, our opinion is, that the judgment of the court below ought to be aflBrmed, with six per cent, interest and costs. Judgment affirmed. It is a consequence of a commercial partnership, that each acting partner is the general agent of the firm ; that is, has an implied authority to act for the firm in all matters within the scope of the business transacted by it. In all that the firm has undertaken to do, or usually does, an acting partner is iden- tified with the company; and secret agreements, restrictive of his power, do not affect third persons who deal with him fairly and in good faith, without a knowledge of them.(l) This authority in a single partner, however, is not an inseparable legal consequence of an interest in the partnership, but is an actual agency implied from the supposed assent of the other members : an express notice, therefore, from one member of a firm, communicated to third persons, that he will not be bound by the acts, or by a particular act, of another part- ner, puts a stop to the implied authority of that partner to bind the firm. (2) But the case of Livingston v. Roosevelt establishes the principle, that one partner has not an implied power to bind the firm in any engagements which are unconnected with, and foreign to, the partnership, and that when a third person deals with one of the partners, in a matter not within the scope of the partnership, though that partner himself may be bound, the firm will not be, without afiirmative evidence of the consent of the other members; and this is confirmed in several cases. (3) It has been held that the question, whether the matter contracted about is within the objects of the partnership, may, in doubtful cases, be determined by usage. (4) The act done, also, must be such as is necessarily or usually incident to the business transacted by the firm; in a partnership for the practice of law or medicine, one partner has not autho- (1) See Winehip et al. v. TheBankof the United States, 6 Peters, 5.^0, 661 ; S. C, 5 Mason, l??; Le Roy, Bayard & Co. v, Johr.son, 2 Peters, 187, 197; Smith v. Lusher, 5 Cowen, 689 j Trades- men's Bank ti. Aster, 11 Wendell, 87, 90 ; Sage v. Sherman, 2 Comstock, 418, 427 ; Boardmau I. Gore et al., 15 Massachusetts, 331, 339; Beck v. Martin, 2 M'MuUan, 260; and see to the same effect, Hawken v. Bourne, 8 Meeson & Welsby, 703, 710. (2) Lord Gallway v. Mathew and Smithson, 10 East, 264; Leavitt v. Peck, 3 Connecticut, 125, 128; Monroe v. Conner, 15 Maine, 178 ; Feigley v. Sponeberger, 6 Watts & Sergeant, 664. (3) Meroein v. Mack, 10 Wendell, 461 ; Nichols v. Hughes, 2 Bailey, 109 ; Waloott v. Can- field, 3 Connecticut, 194, 198 ; Thomas v. Harding, 8 Greenleaf, 417, 420 ; Cocke v. The Branch Bank at Mobile, 3 Alabama, 175; Goode v. Linecum and Nash, 1 Howard's Mississippi, 281; Croughton v, Forrest et al., 17 Missouri, 131 ; Eastman u. Cooper, 15 Pickering, 276, 290. (4) Galloway v. Hughes et al., 1 Bailey, 653; see Woodward i>. Winship, 12 Pickering, 430. LIVINGSTON V. ROOSEVELT: ETC. ROGEES V. BATCHELOE. 443 rity to borrow money, or draw bills of exchange to raise money, in the name of the firm; such powers being beyond the scope of the partnership objects. (1) " Partners in trade," said Lord Denman, C. J., in Medley v. Bainhridge, 3 Q. B. 316, 321, "have authority, as regards third persons, to bind the firm by bills of exchange, for it is the usual course of mercantile transactions so to do; and this authority is by the custom and law of merchants, which is part of the general law of the land. But the same reason does not apply to other partner- ships. There is no custom or usage that attorneys should be parties to nego- tiable instruments; nor is it necessary for the purposes of their business." But where a transaction is beyond the professed and regular objects of the firm, there may be an actual assent by the other members, which of course will bind them ; and this assent need not be anterior or express, but may be implied from their conduct. (2) In a general commercial partnership, the implied agency of an acting part- ner extends to all contracts, executed or executory, within the range of its ordinary business. One partner may draw, accept and endorse notes and bills of exchange, in the name and for the use of the firm ; and a note or bill execu- ted by one partner in the name of the firm, is primO, facie evidence that it was executed rightfully and for partnership purposes, and if not so executed, it lies upon the other party to impeach it, by showing, that it was given for an object beyond the scope of the authority of a partner. (8) [But if a partner- ship be carried on under a single name, the legal presumption, in regard to a note signed in an individual form, is, according to a New York case, that it was a personal, and not a partnership, note; and the plaintiff must prove, in some way, either that the money for which the note was given was borrowed on partnership credit, or that, when obtained, it was used by the partnership. (4) This is not accordant with Mifflin v. Smith ;[b) "But that case," says Lewis, C. J , of Pennsylvania, " was a decision at Nisi Prius. The motion for a new trial was refused by the Court in Banc; but no opinion was given; so that we are left in some uncertainty relative to the reason for refusing the motion, or how far the court intended to sanction the rule laid down by the judge at Nisi Prius, that where a partnership is carried on in the name of an individual, all notes given in his name are prima facie partnership debts. This decision is in conflict with authorities of weight. (6) Without deciding the question, it must be apparent that very slight evidence would put the holder, especially if a party to the original transaction, to the proof that it was intended and under- stood as a partnership act, and was within the scope of the partnership busi- (1) Crosthwait v. Boss, 1 Humphreys, 23 ; Breckinridge v. Shrieve, 4 Dana, 375, 379. (2) Waller n. Keyes, 6 Vermont, 257; Woodward v. Winship, 12 Pickering, 430, 436; McNeill's Ex'rs v. Reynolds, 9 Alabama, 313. (3) Le Roy, Bayard &, Co. v. Johnson, 2 Peters, 187, 197; Whitaker v. Brown, 16 Wendell, 505, 507, 511; Rochester v. Trotter et al., 1 Marshall's Kentucky, 54; Magill v. Merrie &, Bul- lin, 5 3. Monroe, 168, 171 ; Ensminger v. Marvin, 5 Blackford, 210 ; Hamilton v. Summers, 12 Id., 11; Thurston v. Lloyd, 4 Maryland, 288. (4) OUphanti>. Mathews, 26 Barbour, 610; and see dictum in Mercantile Bank v. Cox, 38 Maine, 506. i (5) 17 Sergeant &, Rawle, 165. (6) Bank v. Winship, 5 Pickering, 11 ; Etheridge v. Barney, 9 Id. ; Bank v, Binney, 5 Ma- son, 183; Story on Partnership, | 139; Collyer, 226; 1 Casey, 226. 444 POWER OF ONE PARTNER TO BIND THE FIRM. ness." It is probable that no invariable rule on the subject can be given. The "legal presumption" spoken of in the New York case, st., that the note is an indi- vidual one, certainly is not a violent one, and may be rebutted in various ways. If a man were not in trade individually at all, and was extensively in trade as a partner, though under his individual name, proof of that fact would of course repel the presumption; and especially in the case of "special" or "limited" partnerships, now prevailing extensively, under statutes, in the United States, where, by the statutes of some States, as of Pennsylvania, the partnership can be conducted only in the name of the general partner, (1) without any addition whatsoever.] One partner may borrow money, in the name, and on the credit, of the firm, by note, bill, or otherwise, and all will be liable, though the money, when obtained, be appropriated to the use of the partner borrowing it, if there was nothing at the time of the loan to create a suspicion of fraud. (2) One partner may purchase goods for the firm within the scope of the partnership business; (3) pay debts of the firm;(4) receive payment in money or commodities in discharge of debts due to the firm;(5) and generally do all acts ordinarily done by the firm. The firm will be liable also civilly for fraudulent representations made by one partner, in a matter within the scope of the partnership business, as on a sale of partnership property. (6) An agency of a commercial nature given to a firm by their partnership name, may be executed by one in the name of the firm ; but when a power is given to them individually, it cannot be so execu- ted. (7) Each partner has complete control over the partnership effects, and power of selling or assigning them for partnership purposes; (8) and this extends equally to the assignment of a chose in action ;(9) and to a sale or assignment of the whole partnership stock, by one contract, for money, or for payment of debts ;(10) and to a mortgage of the whole stock. (11) A partner may of course also sell his own share or interest in the partnership, although this will be ipso facto a dissolution of the firm. (12) On the question, whether one partner has a right to make a general assign- ment to a trustee for the payment of the debts of the firm, the cases appear to be in some conflict, but, on the whole, perhaps, they may be reconciled with one another. They may be arranged in two classes : those which hold the (1) Act of 21st of March, 1836, § 13. (2) Winship et al. t>. The Bank of the United States, 5 Peters, 530 ; Church v. Sparrow, 5 Wendell, 223 ; Whitaker v. Brown, 16 Id., 506 ; Onondaga Co. Bank v. De Puy, 17 Id., 47 ; Miller v. Manice, 6 Hill's N. Y., 115, 119; Steel v. Jennings A Beatty, Cheves' Law, 183; Emerson v. Harmon, 14 Maine, 271 ; Baseom v. Young, 7 Missouri, 1, 4. (3) Peigley v. Sponeberger, 5 Watts & Sergeant, 564. (4) Tyson and others v. Pollock, 1 Pennsylvania, 375. (5) M'Kee &, M'Elhenney v. Stroup, Rice, 291. (6) Locke 11. Stearns and another, 1 Metcalf, 560; Beach v. State Bank, 2 Carter's Ind., 492; but see Sherwood v. Marwick, 5 Greenleaf, 295, 302. (7) Gordon v. Buchanan, 5 Yerger, 72, 81 ; see Beck v. Martin, 2 M'Mullan, 260, 266. (8) Quineri). Marblehead Social Insurance Company, 10 Massachusetts, 476, 482; Lamb et al. V. Durant, 12 Id., 54. (9) Everit v. Strong, 5 Hill's N. Y., 163; Mills v. Barber, 4 Day, 428. (10) Arnold v. Brown, 24 Pickering, 89, 92 ; Deokard v. Case, 5 Watts, 22. (11) Tapley v. Butterfield, 1 Metcalf, 615 ; and see CuUum v. Bloodgood, Ford et als., 15 Alabama, 34, 42. (12) Horton's Appeal, 1 Harris, 67; Reice v. Hoyt, 4 Indiana, 169. LIVINGSTON "V. ROOSKVELT: ETC. EOGEES V. BATCHELOE. 445 general principle that one partner possesses no such power ; and those which decide that one partner, in the absence of the other, acting in good faith for the benefit of the concern, is reasonably to be considered as vested with such authority. In Pearponi & Lord v. Graham, 4 Washington, 232, Judge Washington said that one partner undoubtedly had power to dispose of the whole to third persons, who deal with him in relation to the partnership concerns, but that it might admit of serious doubt whether one partner can, without the assent of his associates, assign the whole of the partnership effects, (otherwise than in the course of the trade in which the firm is engaged,) in such manner as to terminate the partnership, which he supposed would be the effect of an assign- ment of all the effects to trustees for the benefit of creditors; but he gave no decision upon the point. In Missouri, it has been decided that one partner has not authority to make a general assignuient to a trustee for creditors. (1) In New York, it has been determined by the Chancellor, that though one of the partners, during the continuance of the partnership, may make a valid assign- ment of the partnership effects, in the name of the firm, directly to one or more of the creditors in payment of his or their debts, an assignment by one partner, against the known wishes of his copartner, to a trustee for the benefit of parti- cular creditors, in fraud of the rights of his copartner to participate in the distribution of the partnership effects among the creditors, is illegal and inequi- table, and cannot be sustained. " The principle," said the Chancellor, in that case, " upon which an assignment by one partner, in payment of a part- nership debt, rests, is, that there is an implied authority for that parpose from his copartner, from the very nature of the contract of partnership ; the payment of the company debts being always a part of the necessary business of the firm. And while either party acts fairly within the limits of such im- plied authority, his contracts are valid and binding upon his copartner. One member of the firm, therefore, without any express authority from the other, may discharge a partnership debt, either by the payment of money, or by the transfer to the creditor of any other of the partnership effects ; although there may not be sufficient left to pay an equal amount to the other creditors of the firm. But it is no part of the ordinary business of a copartnership to appoint a trustee of all the partnership effects, for the purpose of selling and distribut- ing the proceeds among the creditors in unequal proportions. And no such authority as that can be implied. On the contrary, such an exercise of power by one of the firm, without the consent of the other, is in most cases a virtual dissolution of the copartnership; as it renders it impossible for the firm to continue its business." In Hitchcock et al. v. 8t. John et al., 1 Hoffman's Chancery, 512, the Assistant Vice Chancellor also held that one partner has not power to make an assignment to a trustee for the benefit of creditors, though he could transfer property directly in payment of a debt or debts. And, in Dana, Admr v. Lull, 17 Vermont, 390, two of the judges were of the same opinion. On the other hand, it was held in the principal case, Anderson & Wilkins v. Tompkins et al., that if one of the partners is absent, the partner who is pre- (1) Hughes V, Ellison, 5 Missouri, 463, 466; Drake v. Rogers and Shrewsburry, 6 Id. 3ir, 320. 446 POWEE OF ONE PAETNEE TO BIND THE FIEM. sent, conducting the affairs of the firm, acting in good faith for the benefit of the firm, may make a general assignment to a trustee with preferences. The power of selling the whole effects, says the Chief Justice in that case, " would certainly not he exercised in the presence of a partner, without consulting him; and if it were so exercised, slight circumstances would be sufficient to render the transaction suspicious, and, perhaps, to fix on it the imputation of fraud. In this respect, every case must depend on its own circumstances But with respect to the power, in a case perfectly fair, I can conceive no ground ob which it is to be questioned." " One partner was on a voyage to Europe, the other in possession of all the partnership effects for sale. The absent partner could have no agency in the sale of them. He could not be consulted. He could not give an opinion. In leaving the country, he must have intended to confide all its business to the partner who remained for the purpose of transacting it." <' It is true, Murray had a right to be consulted. Had he been present, he ought to have been consulted. The act ought to have been, and probably would have been, a joint act. But Murray was not present. He had left thecountry and could not be consulted. He had, by leaving the country, confided every- thing which respected their joint business, to Tompkins, who was under the necessity of acting alone." It will be observed that the Chief Justice puts the case in part upon the absence of the other partner, and the general delegation of authority to be thence inferred, and says that had he been present, his con- currence, express or implied, would have been requisite to the fairness of the transaction. In Harrisvn v. Sterry, 5 Cranch, 289, Robert Bird, who was the only member residing in America, of an English firm which transacted busi- ness in New York, for the purpose of supporting the credit of the house, by raising funds upon the security of an V.a.st India cargo, and of certain debts due in South Carolina, assigned this cargo and these debts to a trustee for the security and indemnity of the present and future creditors, and the Supreme Court sustained the transaction as being in the usual course of trade. " The whole commercial business of the company in the United States," said the Chief Justice, " was necessarily committed to Robert Bird, the only partner residing in this country. He had the command of their funds in America, and could collect or transfer the debts due to them. The assignment under consideration is an act of this character, and is within the power usually exercised by a man- aging partner." In all the cases which have been decided upon the authority of Harrison v. Sterry, the absence of one of the partners is one of the ele- ments of the decision in favour of the right of the other to make a general assignment. In M' Cullough et al. v. Sommerville, 8 Leigh, 416, the partner who made the general assignment to a trustee for creditors, was the sole man- aging partner, and the other partner resided in another state, and took no part in the business ; and the point decided was, that a partner has a right to convey the firm effects, except real estate, to trustees, to pay specified creditors, without the consent of his copartner, where that copartner resides out of the state, and the grantor is sole manager of the concern. In two Pennsylvania cases, it has been decided that one partner may make a general transfer to creditors, or a general assignment to trustees for the benefit of creditors; Dechard v. Case, 5 Watts, 22; Heiinessy v. The ^YeMt:rn Bank, G Watts & Sergeant, 301; but in the firmer case, the other partner had run off, and left the country, and " from necessity," said the court, " the remaining partner should have the power LIVINGSTON V. ROOSEVELT: ETC. ROGEES V, BATCHELOR. 447 of disposal in payment of debta;'' and in the latter case, the non-joining part- ner was absent in a distant state. In South Carolina it had been determined at an early period that one partner had not the power to make a general assign- ment; Dickinson v. Legate and others, 1 Desaussure, 537, 540; but in that case, the assignment was made by an absent partner, while a prisoner in a for- eign country ; and in Rohinson & Co. v. Crowder, Clough & Co., 4 M'Cord, 519, 537, it was decided that two resident, acting partners, might make a gen- eral assignment when a third member was absent in a distant country. In WJdle V. Onimi Insurance Co., 1 Nott & M'Cord, 557, 562, the point deter- mined was that a surviving partner, especially in case of insolvency, may assign the firm effects to a trustee for payment of debts. In Whitton & Ilurlbert et al. V. Smith et al., Freeman's Chancery, 231, 238, it was decided that a sale by one partner of all the concern, when the other partner was absent in another state, was valid, but was a dissolution of the partnership. [In two recent cases in the Superior Court of the city of New York,(l) it is decided "that a part- ner can, in no case, make a general assignment to a trustee for the benefit of creditors against their consent, or without the concurrence of his co-partner ; the latter being present and capable of acting in the matter."] Thus far, there is no American case which says that one partner, when the other members are present, may without their consent, make a general assign- ment of the firm effects, to a trustee for the benefit of creditors, [and there are two in a reputable court which say that he can not.] The principle to be ex- tracted from decisions appears to be this : That, as a general assignment, if it does not dissolve the partnership, at least takes away from the partners the right of disposing of the effects assigned, all the members, if they are present, have a right to be consulted upon such a step; that an assignment by one against the known wishes of the other, would be fraud upon him, and invalid ; and an assignment without his knowledge would be presumptively so; but that if one partner has left the country, he must be considered as having vested in the other implied authority to act in all matters for the benefit of the firm : and an assignment under such circumstances, if fairly made, and beneficial to the interests of the company, will be sustained. And this is, in effect, the conclu- sion arrived at, in Kirhy v Ingersoll, 1 Douglass, 477, where the subject was ably examined. A majority of the court there held, "that it is not within the ordi- nary powers arising from the partnership relation, while the business of the firm is proceeding in the usual manner, and both partners are present, and attending to the affairs of the firm in the ordinary manner contemplated by their part- nership agreement, for one partner to make an assignment to a trustee for the benefit of preferred creditors, with the design of putting an end to the partner- ship, and closing up its concerns. But the power to make such assignment may be conferred by one partner on another, or may, like any other power, be inferred from the conduct of the partners, their manner of doing business, and the circumstances in which they place themselves in reference to the business of the firm." In order to be binding upon the firm at once, and without further proof, con- tracts entered into by virtue of the implied agency resulting from partnership, must be made in the name of the firm, or at least there must be apparent, on the face of the contract, an intention to pledge the credit of the firm; if that (1) Deming v. Colt, and Hayes v. Heyer, 3 Sandford, 292, 296. 448 POWER OP ONE PARTNER TO BIND THE FIRM. do not appear, the firm may still be bound upon the consideration, but further proof must be given that it was a partnership transaction ;(1) a partner has no implied authority to bind the firm by any other than the firm name. (2) A note payable to a partnership, if endorsed by one partner only in his own name, does not transfer the legal interest in the note ;(3) [though it seems if a bill be addressed to a firm but accepted by one partner in his own name, all the mem. bers of the firm are bound.] (4) If the firm has no fixed name, a signing by one, in the name of himself and company, will bind the partnership; (5) and a note in the name of one, and signed by him " For the firm, &c." will bind the company, for the fact that credit was given to the partnership, and that it was intended to be bound, appears suiEciently on the face of the instrument. (6) There are cases, also, in which bills are drawn, and other acts done, for the partnership, in the name of one partner, by agreement of the partners, where the name of that member is to be regarded as the partnership name in a par- ticular region, or a particular class of transactions ;(7) but the consent of the members, or at least the intention of the acting partner to use his own name as representing the firm, ought to be clearly proved. (8) Where a written con- tract is made in the name of one, and another is a secret partner with him, both may be sued upon it ;(9) and when a man is connected with a dormant partner, and transacts business both on his individual account, and on the partnership account, it is a question of evidence as to which account any transaction was upon. (10) If a written contract for the purchase of goods is made with one, the existence of other partners not being known, and the goods are delivered to the firm, the firm are liable for the consideration, in general assumpsit. (11) And where the partnership is a public one, and is known by the other party to exist, and a written contract is made with one partner in his own name, the liability of the firm for the consideration, depends upon the question whether the trans- action was on partnership or on individual account, and whether exclusive credit was given or not, to the individual partner; the fact that the individual name of the partner was used, being prima facie evidence of the latter. Accord- ingly, where a firm is known to exist, and money is lent to one partner on his own account and responsibility, it does not become a debt of the firm to the lender, in consequence of the money being afterwards used and applied to part- nership purposes, but it is an advance by the partner to the firm ; and the part- ner's individual note being given is prima facie evidence that the transaction (1) Crouch &, Bmmerson v. Bowman, 3 Humphreys, 209. (2) Kirk v. Blurton, 9 Meeson k Welsby, 284. (3) Mclntire v. McLaurin, 2 Humphreys, 71. (4) Beach v. State Bank, 2 Carter's Indiana, 492. (5) Austin & Taylor v* Williams, &c., 2 Hammond, 61. (6) Caldwell v. Sithens, 5 Blackford, 99. (7) South Carolina Bank v. Case, 8 Barnewall & Cresswell, 427; The Bank of Rochester v. Monteath, 1 Denio, 402, 405; see In re Warren, Davies, 320, 325, and Pease v. Dwight, 6 Howard's S. Ct., 190, 199. (8) Rogers v. Coit, 6 Hill's N. T., 322; Palmer v. Stephens, 1 Denio, 472, 482. (9) Snead v. Barringer &, Rhodes, 1 Stewart, 134; GraefF v. Hitchman, 6 Watts, 464. (10) Btbridge v. Binney, 9 Pickering, 272; United States Bank v. Binney et al., 5 Mason, 177, 189; Mifflin v. Smith and another, 17 Sergeant & Rawle, 165; Oliphant v. Mathews, 16 Barbour, 610. (11) Reynolds)). Cleveland, 4 Cowen, 282; Bisel t). Hohbs, 6 Blackford, 479. LIVINGSTON V. ROOSEVELT: ETC. E0GEE3 V. BATCHELOB. 449 was on his private account ;(1) and this applies equally to a purchase of goods on the individual credit of a partner, the avails of which, afterwards, go into the partnership; (2) but thougli a contract of loan or purchase be made by one partner in his own name, and his own note be given, it is competent to prove that it was made for the firm, and on their account and credit, and in that case the firm will be liable, not upon the note, but upon the consideration ; and the fact that money or property borrowed or purchased generally, and not on the exclusive credit of the partner, is appropriated, with the knowledge and by consent of the others, to the use of the firm, will be sufficient evidence of lia- bility in the firm, unless it be shown that it was used by the firm, as the money or property of the partner, and as creating a debt from the firm to him, and not to the third party ;(3) but on a bill or note given by one partner not in the firm name, only the person whose name is upon the note, can be sued; but see Beckman v. Drake, 9 Meeson & Welsby, 79, 92, 96. If a receipt of property be signed by one partner in his own name, prima facie, on the face of the written memorandum, it is an individual contract, but if it appear by evidence that it was a matter relating to partnership business, and that it was for joint interest, the firm will be responsible- (4) But in all partnerships, there are some legal acts to which the general autho- rity of a partner is not competent. The general implied power of a partner does not extend to binding the firm by instruments under seal.(5) An express authority, however, will enable him to do so; but where this authorization is not by deed, it was formei'ly supposed to be the sense of the English cases, that a deed executed by one partner for the firm under a parol authority from the other, must be executed in his presence and by his directions : in that case it is in law his deed ;(6) and such an execution, even of a submission by bond to arbitration, has always been held good;(7) now, however, [except, perhaps, (1) GraeEf v. Hitchman, 5 Watts, 454 ; Green u. Tanner and jjthers, 8 Metcalf, 411, 420 ; Ostrom V. Jacobs and another, 9 Id., 454 j Thorn v. Smith, 21 Wendell, 365 j and see Ketchutn and others v. Durkee and others, 1 Hoflftnan's Chancery, 539, 543 j and see Miner v. Downer et al., 19 Vermont, 15. (2) Holmes v. Burton et al., 9 Vermont, 252. (3) Jaques u. Marquand, 6 Cowen, 497; Church v. Sparrow, 5 Wendell, 223; Whitaker n. Brown, 16 Id., 505, 509, 510 ; Onondaga Co. Bank v. De Puy, 17 Id., 47 ; Crouch & Bmmerson V. Bowman, 3 Humphreys, 209; Foster v. Hall & Eaton, 4 Id., 346; Union Bank v. Eaton, 5 Id., 499. (4) Brown v, Lawrence, 5 Connecticut, 397. (5) Harrison v. Jackson, 7 Term, 207; Snyder v. May & Close, 19 Penna. State, 240; Clement w. Brush, 3 Johnson's Cases, 180 ; Van Deusen v. Blum, 18 Pickering, 229; Executors of Fisher v. Executors of Tucker, 1 M'Cord's Chancery, 169, 171 ; Posey v. Bullitt, 1 Blackford, 99; Trimble v. Coons, 2 Marshall's Kentucky, 375; Cummins, itc. i). Cassily, 5 B. Monroe, 74; Nunnely v. Doherty, 1 Terger, 26; Blackburn v. McCallister, Peck, 371 ; McNaughton and others v. Partridge and others, 11 Ohio, 223 ; Doe, ex dem. v. Tupper, 4 Smedes &> Marshall, 261 ; Snodgrass' Appeal, 1 Harris, 471, 473; Morris v. Jones & Speuce, 4 Harrington, 423 ; Little V. Hazzard & Prettyman, 5 Id., 292, 327, 340. (6) Ball V. Dunsterville and another, 4 Term, 313; Ludlow v. Simond, 2 Caines' Cases, 1, 42, 55; Hart v. Withers, 1 Pennsylvania, 285, 290; Fichthorn ,;. Boyer, 5 Watts, 169, 161 ; Overton v. Tozer, 7 Id., 331; Flood v. Tandes, 1 Blackford, 102; Modisett v. Lindley, 2 lU., 119 ; Henderson v. Barbee, 6 Id., 26, 28 ; Day et al. v. Lafferty, 4 Pike, 460. (7) Mackay v. Bloodgood, 9 Johnson, 285; Lee &, Rector v. Onstott, Adm'r, I Pike, 206, 218. VOL. I. — 29 450 POWER OF ONE PARTNEE TO BIND THE FIRM. in Delaware where the strictest common law rule appears still to prevail,](l) it is settled, after thorough investigation of the cases, that a partner may bind his copartner by an agreement under seal, in the name of the firm, provided the copartner assents to the contract previously to its execution, or afterwards ratifies and adopts it, and this assent or adoption may be by parol, and it need not be express and special, but may be implied from the conduct of the other partner or the course of dealing by the firm ; and this principle extends to the execution of a bond with a warrant of attorney to confess judgment, and of a bond of submission to arbitration. (2) In Illinois and Alabama, a similar rule is adopted, and it is held as a general principle that when a deed professes to be executed by several, and has fewer seals than there are parties, it will be pre- sumed that the others have adopted, as their own, the seal which is put to the deed, and the burthen of disproving it will be put upon those who deny it.(3) In Tennessee, also the same rule appears to be now adopted. (4) The rule that one partner cannot, by his implied authority as general agent of the partnership, bind the firm by a sealed instrument, applies only where the firm is sought to be charged, and not where the object is to discharge a debt due to it; one partner may, therefore^release under seal : this, indeed, he may do by virtue of his joint interest in the debts of the firm, without refer- ence to authority, express or implied, from the other; (5) and one partner may also give authority under seal to an attorney to release. (6) And the general principle that a partner cannot enter into agreements under seal, has received this further important qualification, that where a seal is not essential to the nature of the contract, and will not change or vary the liability, the addition of a seal will not vitiate it ; and that where an act is done, which one partner may do without deed, it is not less effectual that it is done by deed ; this ap- pears to be settled in reference to operations that transfer an interest ; and it has been decided, in case of sales and assignments, where the property may be transferred by delivery, that such a transfer, so consummated by delivery, is not annulled by being attested, or having the trusts on which it is made, described by a deed, and this applies to a general assignment for the benefit of creditors, to a mortgage of chattels, and to an assignment of a chose in action, by one partner under seal;(7) it was held that the appointment of an agent to sign or (1) Little V. Hazzard & Prettyman, 6 HarriDgton, 340. (2) Gram v. Seton & Bunker, 1 Hall, 262; Cady r. Shepherd, 11 Pickering, 400 ; Swan v. Stedman and others, 4 Metcalf, 548, 551; Bond v. Aitkin, 6 Wntts & Sergeant, 165, 168 (of cour.'se overruling Hart v. Withers, 1 Pennsylvania, 285, 291) ; Pike v. Bacon, 21 Maine, 280, 287 ; MoCart v. Lewis, 2 B. Monroe, 267 ; Darst et al. v. Roth, 4 Washington, 471 ; Lucas v. Sanders & M'Alilly, 1 M'MuUan, 311; Fleming v. Dunbar, 2 Hill's So. Car., 532. (3) Davis V. Burton et al., 3 Scammon, 41 ; Witter et al. v. McNeil, Id., 433 ; Hatch v. Craw- ford, 2 Porter, 54 ; and see Kelly v. Pike, 5 Gushing, 484. (4) Lambden «i. J. & P. Sharp, 9 Humphreys, 224; but see Turbeville v. Ryan, 1 Hum- phreys, 113; Napier v. Catron et als., 2 Id., 634. (6) Piersons D. Hooker, 3 Johnson, 68; McBride v. Hagan, 1 Wendell, 326, 334; Morse v. Bellows, 7 New Hampshire, 550, 567. (6) Wells V. Evans, 20 Wendell, 261, 255; S. C, 22 Id., 325, 334. (7) Anderson & Wilkins v. Tompkins et al. ; Robinson &, Co. «. Orowder, Clough & Co., 4 M'Cord, 619, 637; Deckard v. Case, 6 Watts, 22; Halsey et al. v. Whitney et al., 4 Mason, 207, 231; Hennessy v. The Western Bank, 6 Watts A Sergeant, 301, 311; Everit i>. Strong, 5 Hill's N. Y., 163; Tapley v. Butterfield, 1 Metcalf, 515; Milton and another v. Mosher, 7 Id., LIVINGSTON V. EOOSEVELT: ETC. ROGERS V. BATCHELOR. 451 endorse notes, by one partner, as it would be good without seal, is not invali- dated by being under seal. The rule has also been applied to executory con- tracts ; and though perhaps such an application of it may be allowable in cer- tain cases where the action is brought upon something collateral or conse- quential to the deed, as in Lawrence v. Taylor, 5 Hill's N. Y., 108, 113, it is not seen how it can possibly be applicable to a case where an action is brought upon the deed or contract itself, on a right having no legal existence but by the operation of the deed ; the doctrine, above mentioned, could not in an ac- tion on the deed on a plea of non est factum, extend to make the deed of one partner the deed of the other ; nor could it so set aside the deed as to leave in force any antecedent parol contract, express or implied ; and this seems to be admitted in Anderson & Wilkitis v. Tompkins et al., and Montgomery v. Boone et al., 2 B. Monroe, 244. A deed executed by one partner, under circumstances not to be binding upon the other, is yet the deed of the one that executed it ; a bond given by one in the firm name for a partnership debt, extinguishes the partnership liabili- ty.(l) But it has been recently held in several of the States, that as a bond is not an extinguishment of a simple contract debt where it is intended that it should not be, a bond by one partner in the name of the firm for a simple con- tract debt, will not discharge the firm, because it is apparent on the face of the instrument, that it was not intended to accept the liability of a single partner in lieu of the firm, and consequently, that the firm may be sued upon the original simple contract ;(2) but these cases proceed, apparently, upon a mis- apprehension of the extent to which intention can control the principle of extinguishment: the only case in which a bond will not be an extinguishment in law of a simple contract is, where it is intended to be a collateral security, and not an absolute liability ; but if a partner give an absolute liability under seal, it will extinguish his liability upon the parol contract, and if the parol liability is extinguished as to one, it is extinguished as to all, because a part cannot be sued alone ; and where an absolute liability by deed is thus given, intention cannot prevent either the extinction of the parol liability of the one giving it, or the discharge of all from the parol liability as a legal consequence of the discharge of one. But where such a bond has been taken, under a mis- apprehension of its effect in discharging the firm, equity may relieve against extinguishment, and keep alive the liability of the firm. (3) So, a deed of as- signment of the partnership property, executed by one partner, as his deed only, passes his interest in the property ; Bowker v. Burdekin, 11 Meeson & Welsby, 128 ; overruling Lord Eldon's doubts in Button v. Morrison, 17 Vesey, 193, 244, 248 ; M'CuUough et al. v. Sommerville, 8 Leigh, 416 ; Forkner v. Stuart, Ac, 6 Grattan, 197, 206 ; and in Lucas v. Bank of Darien, 2 Stewart, 280, 297. (1) Clement v. Brush, 3 Johnson's Cases, 180: MoBride v. Hagan, 1 Wendell, 326, 335; Nunnely v. Doherty, 1 Terger, 26 ; T7augh & Finley v. Carriger, Id., 31 ; Morris v. Jones & Spence, 4 Harrington, 428. (2) Doniphiin, &,a.v. Gill, 1 B. Monroe, 199; Fleming, Ross & Co. v. Lawhorn & Co., Dud- ley's Law, 360, citing North Carolina cases to the same purport; and see remarks to a similar effect in Despatoh Line of Packets v. Bellamy Man. Co., 12 New Hampshire, 206, 235. (3) MoNaughten & others v. Partridge and others, 11 Ohio, 223; Sale v. Dishman's Ex'ors, 3 Leio-h, 548, 655; but see, perhaps to the contrary, Moser v. Lihenguth, 1 Eawle, 255, as ex- plained in Hart v. Withers, 1 Pennsylvania, 285, 290. 452 POWEB OF ONE PARTNEB TO BIND THE FIRM. 200, which doubts, however, are sustained by the decision in Hughes v. Ellison, 5 Missouri, 463, 466. One partner has not power to confess judgment or authorize confession of judg- ment against the firm, where no writ has been issued against both;(l) but if a judgment be entered under such circumstances, it will not be set aside on the application of the partner who confessed the judgment, or gave the authority ; nor will it be set aside altogether, on motion of the other partner, but either his name will be struck out, and the judgment corrected so as to bind the other only, or execution will be ordered not to be served on the person or property of that partner, but only the other's separate estate, or his interest in the partnership property, will be sold, the judgment being binding only on the one who authorized it. (2) [It may sometimes be set aside at the instance of cred- itors.]{3) In Pennsylvania, where the judgment in scire facias is absolute for the debt, though a judgment on bond and warrant executed by one partner in the name of the firm binds only that partner, yet if regularly revived by scire facias against both, the judgment will be binding on both. (4) It appears to be settled, also, that one partner cannot appear, or lawfully authorize an appearance, for another, where a suit has been instituted against them. (5) But if an appearance be entered for all, by an attorney appointed by one, or if, after writ issued, judgment be confessed against all by the attor- ney of one, the judgment will not be set aside or reversed, but, either, the other partner will be left to his remedy against the attorney or his copartner, or, according to the circumstances, the judgment will be opened, and he will be let into a defence ; but this depends, not upon the right of one partner to bind the other, but, upon the general practice of the courts where an appearance by attorney is entered without authority. (6) The right of a partner to appear or authorize an appearance for all, is a distinct question from the legal eifect of an appearance by an attorney who is an oiEoer of the court. (7) Another power which a partner does not possess by implication, is that of referring any partnership matter to arbitration ; there are a few decisions, in- deed, in which it has been held that a partner has power to bind the firm by such an agreement not under seal ;(8) yet these opinions are controlled by bet- ter authorities. (9) (1) Crane v. French, 1 Wendell, 311; Grazebrook v. M'Creedle, 9 Id., 437; Barlow v. Reno, 1 Blackford, 252; Sloo v. The State Bank of Illinois;! Soammon, 428, 442; Mills & Co. v. Dickson, 6 Richardson, 492. (2) Motteux V. St. Aubin and others, 2 Blaekstone, 1133 ; Green & Mosheri). Heals, 2 Caines, 254; St. John & Witherell v. Holmes, 20 Wendell, 609 ; Gerard v. Basse et al., 1 Dallas, 119; Bitzer v. Shunk, 1 Watts & Sergeant, 340 ; Harper v. Fox, 1 Id., 142 ; Doe, ex dem. v. Tapper, 4 Smedes A Marshall, 261. (3) Mills V. Dickson, 6 Richards, 494. (4) Overton «. Tozer, 1 Watts, 331 ; Cash v. Tozer, 1 Watts & Sergeant, 519, 525. (5) Haslet and others v. Street and others, 2 M'Cord, 310 ; though there is a dictum to the contrary in Taylor and others v. Coryell and others, 12 Sergeant & Rawle, 243, 250 ; see More- don V. Wyer, 6 Manning & Granger, 278, and note. (6) Denton v. Noyes, 6 Johnson, 296 ; Grazebrook v. M'Creedie, 9 Wendell, 437 ; see cases collected in note to Sloo v. The State Bank of Illinois, 1 Scammon, 428, 444. (7) See Hills et al. v. Ross, 3 Dallas, 331. (8) Taylor and others v. Coryell and others, 12 Sergeant & Rawle, 243 ; Southard & Starr v. Steele, 3 Monroe, 435; Wilco-t & Gamble v. Singletary, Wright, 420. (9) Stead v. Salt, 3 Bingham, 101 ; Adams v. Bankart, 1 C. M. & R., 681 ; S. C, 5 Tyrwh. LIVINGSTON V. ROOSEVELT: ETC. ROGERS V. BATCHELOR. 453 But independently of these particular legal acts, which one member of a commercial partnership is not competent to do for the firm, and besides the re- striction of all operations to the particular kind of business which the partner- ship was established to conduct, there are in all, even the most general mercan- tile partnerships, some further limitations on the exercise of the powers of a partner, grounded upon a limitation in the purpose for which, in the nature of the case, a partnership is formed. One of these general legal limitations is, that as a partnership is formed for the common benefit of all the partners, and as every transaction ought legally to be on joint account, and not for the exclusive benefit of one member of the company, one partner cannot apply the partnership funds or securities to the discharge of his own private debt, unless by consent of the other partners ;(1) and though it has sometimes been supposed that to invalidate such an arrange- ment, it is requisite that the person receiving the property should have know- ledge that it is partnership property, yet it is now settled that that is not neces- sary ; without the consent of the other partners, the transaction is void, and the partnership title is not devested in favour of such separate creditor, whether he knew that the property belonged to the partnership or not ; the right of the creditor depending, not upon his knowledge that it was partnership property, but upon the fact whather the other partners had assented to such disposition of it or not. (2) A partner, also, has no power, by any species of arrangement, to bind the firm to pay his private debts. (3) On some kindred points, there is a con- flict of decisions ;(4) it has been held in some cases that one partner cannot ex- tinguish or release a debt due to the firm by way of set-off or discharge of his own individual debt ; but the contrary is decided in others :(5) and in Strong V. Fish, 13 Vermont, 277, and Greely et a. v. Wyeih eta., 10 New Hampshire, 15, and White v. Tales & Dunhp, 1 Alabama, 569, it was held that an agree- ment by one partner that goods to be sold or services to be rendered by the partnership should be compensated for by the discharge of a debt due by that one alone, or be paid for in articles furnished for that partner's domestic use, barred or discharged the claim of the partnership for payment ; while the con- trary had been held in Pierce & Baldwin v. Pass & Co., 1 Porter, 232 ; see Eaton et at, v. Whitcomb, 17 Vermont, 642 ; Arnold v. Brown, 24 Pickering, 89, 93, and McKee & M' Elhenney v. Stroup, Rice, 291. It has been stated, above, that a note or bill, drawn or endorsed by one part- ner in the name of the firm, is prima facie evidence of a liability on the part 425 ; Kartlaus v. Ferrer et al., 1 Peters, 222, 228 ; dictum of Gibson, C. J., in Harper ». Fox, 1 Watts & Sergeant, 142, 143. (1) Dob V. Halsey, 16 Johnson, 34; Yale ■/. Tale, 13 Connecticut, 185, 190; Hickman v. Reineking, 6 Blackford, 388 ; West v. McCabe, 2 Florida, 32, 40; Daniel v. Daniel, 9 B. Mon- roe, 195, 196; Bourne i>. Wooldridge et al., 10 Id., 493. (2) Rogers v. Batchelor; Brewster v. Mottet al., 4 Scammon, 378; Purdy v. Powers, 6 Barr, 492 ; Minor v. 6aw, 11 Smedes k Marshall, 322, 324; Buck v. Mosley &, Mallory, 24 Missis- sippi, 170; dictum in Tanner v. Hall and Easton, 1 Barr, 417, 418, and Hester, Wilson, White & Co. V. Lumpkin, 4 Alabama, 509, 514; see Eelley v. Greenleaf et al., 3 Story, 93, 100, (3) Noble V. McClintook, 2 Watts & Sergeant, 152, 165; Beckham cSi Eckles c Peay, 2 Bailey, 133 ; Jones' Case, Overton, 455. (4) Gram v. Cadwell, 5 Cowen, 489, 493 ; BTernghim v. Ensworth, 7 Wendell, 326, aiid Bur- well & Clarke v. Springfield, 15 Alabama, 274. (5) Hall, Kirkpatrick & Co. v. Coe, Ac, 4 McCord, 136. 454 POWER OF ONE PARTNER TO BIND THE FIRM. of the firm : and it was formerly supposed that the rule in England was, that although a partnership note or bill was given by one partner for his individual debt, it was binding unless covin was proved, or at least unless there was proof that the creditor knew that the partner dealing with him had no authority to use the partnership name for the purpose : see Ridley v. Taylor, 13 East, 175. But in this country, from an early period, two oases have been settled, in which the transaction is considered as carrying on its face notice that it is beyond the scope of the authority or agency of a partner, and as putting upon the creditor a necessity of proving an authorization or consent by the other partners: these are, first, where the note is given for a private debt of the partner, and know- ingly so received by the creditor; and second, where it is known to be an ac- commodation note or note given as surety for a third person or firm.(l) The principle of the American cases on this point, is stated by the Chancellor in Stall V. OaUldll Bank, 18 Wendell, 466, 477, in the Court of Errors, to be this ; that it is no part of the ordinary business of a mercantile firm to make or endorse notes as sureties for third persons, or to pay the private debts of the individual partners, and of course there is no implied authority for one member to endorse or fix the name of the firm to negotiable paper, in which the partner- ship has no interest, for such purposes : such notes or bills are therefore not binding upon the firm, when in the hands of any one who has taken them with a knowledge of the nature of the consideration ; but in the hands of a bona fide holder for value they are binding. Accordingly, with regard to the former case, viz., where partnership paper is given for a private debt, the course of proof is thus : the partnership name, affixed by one member of the firm, is, as before remarked, prima facia evidence of indebtedness by the firm, the presumption of law being, that an instrument so drawn or endorsed is given for a partnership debt, and the plaintiff is not obliged to show, in the first instance, that it was given in a partnership transac- tion ;(2) but proof on the defence, that the note was given by one partner for his private debt, and was taken by the plaintiff with knowledge of that fact, renders it incumbent on the plaintifi' to prove a previous authority, or subse- quent consent, by the other partners, without which he cannot recover ;(y) and this assent need not be express, but may be implied by the jury from the facts and circumstances of the case, upon sufficient evidence ;(4) as, from the other partner's not declaring his dissent within a reasonable time after the transaction comes to his knowledge. (5) But if a note or bill, though fraudulently put into (1) Joyce V. Williams, 14 Wendell, 141; N. Y. F. In. Co. v. Bennett, 5 Connecticut, 675; Mauldin v. The Branch Bank at Mobile, 2 Alabama, 603, 611, 612. (2) Doty D. Bates, 11 Johnson, 644, 546; Vallett v. Parker, 6 Wendell, 615,619; Waldo Bank v. Greely, 16 Maine, 419; Barrett v. Swann, 17 Id., 180; Manning et al. a. Hays, 6 Maryland, 9; Jones v. Rives, 3 Alabama, 11; Knapp i/. McBride & Norman, 7 Id., 20, 27; McMuUen v, McKenzie, 2 Iowa, 369. (3) Lansing v. Gaine k Ten Eyck, 2 Johnson, 300, 305; Dob t>. Halsey, 16 Id., 34, 38; Cha- zournes v. Edwards et al., 3 Pickering, 5, 10 ; Baird t-. Cochran & Dowling, 4 Sergeant .m of interest, which he could extract out of the concerns of the partnership, after all the accounts of the partnership were taken, and the effects of that partnership were reduced to a dry mass of pro- perty, upon which no person, except the parties themselves, has any claim." In Watson i>. Taylor, (2 Ves. & Beames, 299, 300,) Lord Eldon, in the course of the argument, inquired, " how the sheriff executes the writ under a judgment against one partner, according to the present doctrine of the Courts of law, that he takes the interest of the partner. Is not that a dissolution of the partnership?" Mr. Cooke, as amicus citrice, said " the way in which the sheriff executes the writ in practice, is by making a bill of sale of the actual interest." Lord Eldon observed, "if the Courts of law had followed Courts of equity, in giving execution against partnership effects, I desire to have it understood, that they do not appear to me to adhere to the principle, when they suppose that the interest can be .=old, before it is ascertained what is the subject of sale and purchase." King v. Sanderson, (1 Wightwick, 60). In The Kino- V. Keck, (2 Price, 198,) where partnership property was seized under an extent for a debt due to the Crown from one of the firm, the Court refused to grant an amoveas manus, in the first instance, but directed a reference to the Deputy Eemembrancer, to report an account of the joint and separate property, and to ascertain the clear surplus and proportion of each party ; and, afterwards, security being given to answer the Crown's debt, so far as it should appear, on the account, that the Crown was entitled, they ordered an amoveaa manus to be 462 RIGHTS OF JOIKT AND SEPARATE CREDITORS. We have considered an attachment under the act for relief against absent and absconding debtors, as analogous to an execution ;(1) and in the matter of Chipman, (14 Johns. 217,) we decided that it might issue, where one of several partners had absconded, for a partnership debt. But the sheriff can take the separate property only, of the absconding debtor. He cannot seize the partnership effects, for the other partner has a right to retain and dispose of them, for the pay- ment of the partnership debts. The right of the trustee appointed under this act, will attach on the interest only of the absconding debtor in those effects, or to his proportion of the surplus remaining, after pay- ment of all the debts of the partnership. The case of partners, is different from that of tenants in common of a chattel. (2) issued. In Moody v. Payne, (2 Johnson's Ch., 548,) the Chancellor refused to grant an in- junction, on a bill filed for that purpope, to stay the execution at law until an account was taken. He thought, that as the sheriff could sell only the interest of the one partner, subject to the rights of the partnership creditors, there would be no harm in suffering the separate creditor to go on at law ; as, if any sacrifice of the interest of the separate partner should be made, by reason of the uncertciinty of that interest, it could affect only that partner or the separate creditor, who did not raise the objection. And he thought Mr. Maddoc-k (1 Maddock, 112,) was not warranted in bis conclusion, that chancery would, on a bill filed by the other partner, stay the execution, until an account was taken of what was due to such separate partner. If the Court of law, then, cannot order an account to be taken between partners, and will not stay the execution to give the solvent partner time to have the account taken in equity, it follows, that the sheriff can sell only the right, title, and interest of the partner against whom the execution issues, whatever it may happen to be, when the affairs of the partnership are wound up, and the account finally taken and settled. In Baker v. Goodair, (11 Vesey, Jr., 78, 85,) where partnership goods had been taken, on z, foreign attachment, and the aeaignees under a commission of bankruptcy against one of the partners, and the garniahee, filed a bill to restrain the proceedings on the attachment, Lord Eldon held, that the proceed- ing was to be restrained to give an opportunity to have the question decided by the Court, as to the application of the property among the different claimants. In Taylor v. Fields, (15 Vesey, Jr., 559, note; S. C, 4 Id., 469,) the sheriff seized all partnership effects, under an execution against one of the partners, on being indemnified by the joint creditors, gnve up the partnership effects, and the creditor, of the separate partner, brought an action against the sheriff for a false return. The partners having become bankrupts soon after the judgment, » bill was filled by the assignees, to be quieted in the possession of the partnership effects, and for an account, and to restrain, by injunction, the suit against the sheriff. The Court ordered the assignees to pay into court 640 pounds, without prejudice, and in default thereof, the de- 'fendant to be at liberty to proceed in his action ; and it appearing, on an account taken of the interest of the separate partner, that there was no balance due to him, after pnyment of the partnership debts, the injunction which had been issued in the mean time, was made per- petual. — \^Note hy the Reporter.'] (1) In Morley v. Strombom and others, (3 Bos. k Pull. 254,) it was held, that where three partners, two of whom resided abroad, were sued for a partnership debt, and the resident partner appeared by himself, but refused to appear for his copartners, the sheriff, on a die- tringae against the non resident partners, to compel their appearance, might take the partner- ship effects, in the possession of the resident partner, though purchased acd paid for by him alone: and the Court refused to relieve him, saying, that what might be taken under an exe- cution, might be taken under a distress. — [/t^.] (2) Vide Mersereau v. Norton, (15 Johnson, \1'^.)—{Id.'\ MATTER OF SMITH: M'CULLOH V. DASHIELL. 463 We shall, therefore, order the goods, books, &c., to be restored, but without cost to either party. The following rule was entered : " Ordered, that the sheriff of the county of Ontario do restore to William Soulden, or to such person as he shall appoint to receive the same, the goods, books and moneys, taken by the said sheriff, under the first-mentioned attachment, and the other goods or property of the said Soulden & Smith, as partners, which he may have so taken : And that the sheriff of the county of Oneida do, also, restore to the said William Soulden, or to such person as he shall appoint to receive them, the books of account, and papers, taken by the said sheriff, as aforesaid, under the second attachment; and that, as to the goods taken on the said execution, and claimed, also, by the said sheriff, by virtue of the said attachment, that he do henceforth surcease all proceedings, or claims to the said goods, under or by virtue of the said warrant of attachment." M'CULLOH V. DASHIELL'S adm'r. In the Court of Appeals of Maryland. JUNE, 1827 [reported from 1 HARRIS AND GILL, 96-107.] Joint creditors, in equity, can only look to the surplus of the separate estate, after payment of the separate debts. Separate creditors, in equity, can only seek indemnity from the surplus of the joint fund, after the satisfaction of the joint creditors. Where the claims of joint creditors do not come into covflict with those of the separate creditors, hut only with the interest of the representa- tives of the deceased partner, equity will decree to joint creditors a satisfaction of their claims, hy considering them, as they are considered at law, both joint and several. At law, the joint creditors may pursue both the joint and separate estate, to the extent of each, for the satisfaction of their joint demands, without restriction from a court of equity ; yet when by the death of one of the partners, the legal right survives against the surviving partner, and is extinguished against the deceased partner, that court will give to the separate creditors all the advantages, thus thrown away by accident upon them. The assets of insolvents are distributable according to equity 464 EIGHTS OF JOINT AND SEPAEATE CEEDITOES. Appeal from Somerset County Court, sitting as a Court of Equity. In this case the bill of the complainant (now appellant) stated, and the parties admitted, that in 1817 Peter Dashiell and Richard Bennett were partners in trade, dealing in merchandise, under the firm of Dashiell and Bennett. That Chase and Tilyard, being indebted to the com- plainant, drew a bill of exchange on Dashiell and Bennett, directing them to pay to the order of »the complainant $700, which was accepted by Dashiell and Bennett. That the complainant in the year 1818 in- stituted a suit at law against Dashiell and Bennett for the recovery of the money due on the said acceptance, and pending the suit Dashiell died intestate. That judgment was afterwards recovered against Ben- nett, the surviving partner, and upon the return of the execution issued on the judgment, Bennett petitioned and obtained the benefit of the act for the relief of insolvent debtors. That at the time of his petition and discharge he had no property; and no part of the said judgment had been paid. That the defendant (the appellee) obtained letters of ad- ministration on the estate of Dashiell, and had assetts in his hands to the amount of $13,061 43. That the personal estate of Dashiell is insufiicient to pay his separate and private debts. That the defendant, as his administrator, had received of the partnership funds $35 93. The complainant claimed to be paid out of the assets in the defendant's hands, an equal proportion of their claim with the other creditors of Dashiell. But the County Court [Martin, Ch. J., and Robins, A. J.] refused to allow the complainant's claim, and decreed that no part of his claim should be paid, except from the partnership funds, until the separate and individual debts of Dashiell should be first paid; and that the surplus, if any, should be applied to the payment of the partnership debts, and not otherwise. From this decree the complainant appealed to this court. The question therefore was, whether the complainant was entitled to be paid an equal proportion of his claim, with the separate creditors of Dashiell's out of the assets in the defendant's hands, or whether the claim being a joint claim, should be postponed until all the separate creditors should be first fully paid. The cause was argued at last June term before Buchanan, Ch. J., and Earlb, Stephen, Archer, and Dorsky, Js. J. Bayly, for the Appellant, to show that the complainant was en- titled to be paid an equal proportion of his claim with the separate creditors of Dashiell, out of the assets in the hands of the defendant, MATTER OF SMITH: M'CULLOH V. DASHIELL. 465 referred to the acts of 1798, ch. 101, sub ch. 8, s. 17, and 1805, ch. 110, s. 7, & 6 Murray & Sansom v. Ridley's Adm'x, 3 Harr. & M'Hen. 175 ; Hammersly v. Lambert, 2 Johnson's Ch. 508 ; Tucker v. Oxley, 5 Cranch, 34, 39; Ex parte Elton, 3 Ves. 238; Stephenson v. Chis- well, lb. 566. It. iV. Martin and Tingle, for the Appellee. Where there is a sepa- rate estate, and individual and copartnership creditors, the first have the first claim out of the estate. The interest which copartnership creditors have, is after the payment of individual debts. 2 Madd. Ch. 463. Partnership effects shall in the first place be applied to pay part- nership debts. The separate creditors can only resort to the surplus. 1 Madd. Ch. 463 ; 2 Id, 466 ; Ex parte Crowder, 2 Vernon, 706 ; Ex parte Hunter, 1 Atkyns 227 ; Ex parte Cook, 2 Peere Williams 500 ; Ex parte Elton, 3 Vesey Jr. 238; Ex parte Clark, 4 Id. 677 ; Ex parte Abell, Id. 837, 839 ; Thomas v. Frazer, 3 Id. 399 (note) ; Ex parte Clay, 6 Id. 813 ; Ex parte Reeve, 9 Id. 590 ; Gray v. Chiswell, Id. 124; Gow on Partnership, 270, 271, 272, 317, 367, 461; 1 Bacon's Abridgement, tit. Bankruptcy, 460 ; Lane v. Williams, 2 Vernon 277, 292 ; Simpson v. Vaughan, 2 Atkyns, 31. J. Bayly, in reply cited Murray v. Murray, 5 Johnson 60 ; Act of 1798, ch. 101, sub ch. 8, s. 5, 7, 10, 16 ; Ex parte Hodgson, 2 Brown's Ch. 5 ; Harrison v. Sterry, 5 Cranch, 302. Curia adv. vult. Archer, J., delivered the opinion of the court : The question presented in this case is one of considerable importance ; and although, undoubtedly, of very frequent occurrence in the subordi- nate testamentary tribunals, has never, we believe, received an adjudi- cation in the appellate court, or in any of the higher courts of original jurisdiction. There are very few cases in the English books bearing directly upon the distribution of assets, in a case situated as this is. It has been con- tended in argument, that it must be governed by the principles adopted in England in the marshalling of assets in bankruptcy. And as they are distributed according to equity, if the rule can be definitely ascer- tained, it ought to govern here. But an examination of the authorities will show, that it has been very unsteady and fluctuating ; varying fre- quently in form, often in substance, according to the ideas entertained VOL. I. — 30 466 RIGHTS OF JOIIsT AND SEPAEATE CEEDITOES. by each succeeding chancellor, of the rights of the joint and separate creditors ; and moulded more upon their notions of convenience to all the parties concerned, than as standing upon legal reasoning. (1) Amid the multitude of decisions which have taken place upon this subject it is no easy task to trace the history of the rule of distribution in bank- ruptcy. But this -examination will satisfy us, that amidst all the fluctuations of the rule, the principles established in the first cases occurring more than a century since, have been but for a short period materially encroached upon ; and that now the leading principles of distribution with some modifications, are what they were originally established to be. In Ex parte Crowder,(2) decided in 1715, which was an application on the part of the separate creditors, to be let in under a joint commis- sion, the separate estate being of small value, it was decided that they might be permitted to prove their claims under the joint commission, but that the joint funds were applicable, in the first instance, to the payment of joint debts, and then the separate debts ; and that the sep- arate effects should be applied to the payment of the separate debts, and that the surplus should goto the liquidation of the joint debts. In Ex parte Cook,(3) (in 1728), Lord Chancellor King followed the deter- mination in Ex parte Crowder, and declared it to be settled, and that it was a resolution of convenience, that joint creditors shall be first paid out of the partnership estate, and the separate creditors out of the separate estate of each partner, and if there be a surplus of the joint estate, besides what will pay the joint creditors, the same shall be applied to pay the separate creditors ; and if there be on the other hand a surplus of the separate estate, beyond what will pay the separate cre- ditors, it shall go to supply any deficiency that may remain as to the joint creditors. In Ex parte Hunter,(4) (in 1742), Lord Hardwicke says, as between joint and separate creditors the joint estate shall be applied to the joint creditors, and the separate estate to the separate creditors. The rule that prevailed during the administrations of Lords King and Hardwicke, from 1715 down to the time of Lord Thurlow, was that joint creditors could not prove under a separate commission, for the purpose of receiving dividends with the separate creditors ;(5) but only for the purpose of going for the surplus after the satisfaction of the separate creditors. But Lord Thurlow broke in upon the estab- lished practice of the court, which had prevailed for sixty years ; and (1) Button V. Morrison, 11 Vesey, Jr., 205. (2) 2 Vernon, 706. (3) 2 Peere Williams, 500. (4) 1 Atkjns, 228. (6) Watson on Part., 244, Ex parte Taitt, 15 Vesey, Jr., 195. MATTER OF SMITH: M ' C IT L L O H V. DASHIELL. 467 in 1785, in Ex parte Hoclgson,(l) resolved that there was no distinction between joint and separate creditors ; that they ought to be paid out of the bankrupt's estate, and his moiety of the joint estate ; and that the joint creditors ought to come in pari passu, with the separate creditors. This resolution laid down, as it is, in broad and general terms, would appear to have broken down all the boundaries previously established, between the rights and priorities of the joint and separate creditors ; yet if taken with the limitations with which it is said, by Watson on Partnership, to have been qualified, it will appear to have made this innovation only — that they should all, joint as well as separate credit- ors, be permitted to prove their claims against the separate estate upon a separate commission ; but that it was competent for the assignees to confine the joint creditors, where there was a joint estate, to that fund exclusively, by filing a bill in equity against the other partners, and obtaining an injunction upon the order in bankruptcy. And that this was the consequence of Lord Thurlow's adjudication is apparent from Lord Roslyn's judgment in Ex parte Elton. (2) Thus the rights of the joint and separate creditors, on their respective funds where there was a joint estate, was maintained, notwithstanding the alteration thus made in the order in bankruptcy. In Ex parte Elton, decided in 1796, the rule established in 1785, was deemed by the then chancellor to be an inconvenient one, because every order which he passed in bankruptcy, that the joint creditor should receive a dividend out of the separate estate, might give rise to a bill in equity, on the part of the separate creditors, to restrain this order and to secure the appropriation of the separate estate to the satisfaction of the separate debts ; and it was adjudged, that a joint creditor might prove his claim under a separate commission, not for the purpose of receiving a dividend, until an account should be taken of what he had or might have received from the part- nership effects. Thus the chancellor, in the modification which he gave to the order in bankruptcy, exercised his equity jurisdiction, and gave to each order the operation of an injunction, without the expense of a bill, whereby the joint creditor was restrained from coming on the sepa- rate fund until, in the final adjustment of the copartnership and indi- vidual accounts, equity should determine what portion of the separate funds should be allotted to the joint creditor. And he says, that the joint creditors are in the situation of a person having two funds. The court will not allow him to attach himself to one fund, to the prejudice of those who have no other, and to neglect the other fund. He has the law open to him, but if he comes to claim a distribution, the first con- (1) 2 Brown's Ch., 5. (2) 3 Vesey, Jr., 238. 468 EIGHTS OP JOINT AND SEPARATE CEEDITOES. sideration is, what is that fund from which he seeks it ? It is the sepa- rate estate which is particularly attached to the separate creditors. Upon the supposition there is a joint estate, the answer is, apply your- self to that, you have a right to come upon it. The separate creditors have not. Therefore do not affect the fund attached to them, till you have obtained what you can get from the joint fund. Thus it would appear that the ancient order of distribution was restored with this modification, that the joint creditors might prove, but could not, as before, receive dividends without the further order of the chancellor, which should be made after the settlement of accounts, which were directed to be kept as before, separate. This important principle also seems distinctly to be set up by this decision, that where there are no joint effects, and no solvent partner, that the joint creditors might be permitted to come in with the separate creditors, a doctrine which ap- pears to have been first recognised by Lord Thurlow, in Ex parte Hay- den,(l) for before that period it has been seen that they could only come upon the surplus. This doctrine Lord Eldon has uniformly adhered to, although it will be found that he repeatedly complains of it, as a rule producing some inconveniences, and liable to several objections. (2) In Ex parte Kensington, (3) the joint creditors were forbid receiving divi- dends with the separate creditors, on the ground that there was one solvent partner, although there was no joint estate. That the petitioner would have been allowed had the partner been bankrupt, is the necessary inference from the case ; and in the former case the joint creditors were permitted to come in where there were no joint effects, upon the ground that the solvent partner was abroad, and that therefore the difficulty was increased in resorting to him. Such is a succinct history of the law upon this subject, and the modern doctrine has been summarily stated by Eden ;(4) by Vesey, Jr. ,(5) and also byMaddock.(6) They all unite in saying (and they are fully supported by the authority cited by them respectively), "that the joint creditor may prove under a separate commission, for the purpose of assenting to, or dissenting from, the commission, or of going against the surplus after the satisfaction of the separate debts, not to vote on the choice of as- signees, or receive dividends with the separate creditors (except a joint (1) 1 Brown's Ch., 453. (2) See Ex parte Pinkerton, 6 Vesey, Jr., 813. (note); Ex parte Kensington, 14 Id., 447; Ex parte Kendal, 17 Id., 521 ; Ex parte Abell, 4 Id., 837. (3) 14 Vesey, Jr. (4) See his notes to Ex parte Hodgson, 2 Bro. Ch. Eep. 5. (5) In Ex parte Taitt, 16 Vesey, Jr., lU,{n). (0) Treatise on the principles and practice of Ihe Court of Chancery, vol. ii., p. 463. MATTER OF SMITH: M'CULLOH V. DASHIELL. 469 creditor who is a petitioning creditor under the commission), or where there are no joint effects, or no solvent partner, or no separate debts, or the joint creditors will pay twenty shillings in the pound to the sep- arate creditors." The case of Gray v. Chiswell, 9 Vesey, Jr., 124, as it is strongly illustrative of the above doctrines, and was a case, not in bankruptcy but in equity, will be particularly adverted to. A bill was filed by the creditors of Cook against the heir and executrix of Chiswell, claiming to come upon the real estate of Chiswell, for the amount of their debts, as the personal estate had been absorbed by specialty creditors. Chis- well had been a partner of Nantes; Nantes had survived him, and had become bankrupt. The joint creditors of Nantes and Chiswell proved their claims before the master. The joint estate was insolvent, being only able to pay an inconsiderahle dividend, and the sum supposed to be raised by a sale or mortgage of Chiswell'a real estate, was not more than sufficient to pay the separate creditors. A contest arose between the joint and separate creditors, the former insisting on their right to come in pari passu with the separate creditors, upon this fund, thus proposed to be raised out of his separate estate. But the Chancellor (Lord Eldon) refused to permit them, upon the ground that in bank- ruptcy it could not be done, and that the accidental death of Chiswell ought not to put the joint creditors in a better situation than they would have been, had he lived and become bankrupt. If there he any estate for distribution among the joint creditors, although the surviving part- ner is bankrupt, they are not, in bankruptcy, permitted to come in with the separate creditors. The chancellor, therefore here, as in bank- ruptcy, would not permit the joint creditors, who had effectuated their claims under the commission against Nantes, although they had re- ceived but an inconsiderable dividend, to come in pari passu with the separate creditors. There was here some joint estate, and then the general rule applied, that each species of creditor must be satisfied out of the fund to which his debt particularly attaches itself; and the rule has been carried to this extent, that if there be a joint fund of any, even the smallest description which is capable of being realized, the rule is inflexible, and the joint creditors will not be permitted to receive dividends from the separate estate. (1) Thus we perceive from the case of Gray v. Chiswell, that the rule, which is applied in bankruptcy, is extended to cases in equity. It is difficult to say upon what the rule in equity and in bankruptcy, with the modification above stated, is founded. The joint estate is bene- (1) Ex parte Peake, Gow on Partnership, 408. 470 RIGHTS OF JOINT AND SEPARATE CREDITORS. fitted to the extent of every credit which is given to the firm, and so is the separate estate in the same manner enlarged by the debt it may create with any individual, and there would be unquestionably a clear equity in confining the creditors to each estate respectively, which has thus been benefitted by their transactions. So far the rule is sensible and intelligible ; and although at law the joint creditors may pursue both the joint and separate estate to the extent of each, for the satisfac- tion of their joint demands, which are at law considered both joint and several, without the possibility of the interposition of any restraining power of a court of equity ; yet when, by the death of one of the par- ties, the legal right survives against the surviving partner, and is ex- tinguished against the deceased partner, a court of equity will give to the separate creditors all the advantages thus by accident thrown upon them, and will not, by adopting the rigorous rule of the law merchant, thereby injure and prejudice the separate creditor, upon whom, viewed in connexion with the separate fund, it always looks upon as meritorious and entitled to the distribution of assets to the preference. But although a court of equity, as against the separate creditors, will not adopt the law merchant, which considers the contract both join^ and several; yet whatever doubts have heretofore been entertained on the subject, where the claims of these joint creditors do not come in conflict with the sepa- rate creditors, but only with the interests of the representatives of the deceased partner, it is now undeniably settled, that equity will, as against such representatives, decree to joint creditors a satisfaction of their claims, by considering them, as they are considered at law, both joint and several. But although these distinctions are built on the solid foundations of reason and justice, it is not altogether so easy to perceive why, when there is no joint fund, and no solvent partner (by no solvent partner is meant bankrupt partner), the joint creditor should thereby acquire the equitable right of coming in with the separate creditors j^ari passu, upon a fund in no manner benefitted by the creation of his debt. Such, how- ever, is the settled and established rule, as we are enabled to collect it both in bankruptcy and in equity ; and according to this rule the com- plainant could not, in this case, be permitted to seek indemnity for his claim, from the separate estate pari passu with the separate creditors, as it is a conceded fact in the cause, that there are joint funds, although very inconsiderable, and greatly insufficient to pay the debt of the com- plainant. But were this not the fact, this court would have no difficulty in say- ing, that the complainant should be postponed to the separate creditors ; MATTEB OF SMITH: m'cULLOH V. DASHIELL. 471 and that whether there was any joint estate or not, he should not be permitted to divide with the separate creditors a fund insufficient to pay them. We are, therefore, disposed to adopt the ancient rule as more consonant to equity and justice, that the joint creditors can only look to the surplus, after the payment of the separate debts; and on the other hand, that the separate creditors can only seek indemnity from the surplus of the joint fund after the satisfaction of the joint creditors. It is believed that the case of Tucker v. Oxley, 5 Cranch, 34, some- what militates against the views which we have taken of the English law upon this subject, and it has been pressed upon the court, by the appellant's counsel, as containing principles decisive of this case. It was there determined, that under the bankrupt law of the United States (and the bankrupt law of England and that of the United States, so far as connected with the matter there decided, are nearly identical), that a joint debt may be set off against the separate claim of the assignee of one of the partners, but that such set-off could not be made at law, in- dependent of the bankrupt system. The particular decision in this case, it is not material perhaps to examine, because it was a case at law, and the relations of the parties were materially different. It would perhaps be sufficient to say, that the Supreme Court, although they conceive a legal right exists in the joint creditors to prove and receive dividends out of the separate estate, explicitly admit, that such right it is competent for a court of equity to restrain, and to compel the exer- cise of •such right in such manner as not to prejudice or to do injustice to others. We might in any view of the cause before us, dismiss with- out further observation, the case of Tucker v. Oxley ; but we cannot forbear remarking, that the case upon which the court there build their opinion, that a legal right universally exists in the joint creditors upon a separate commission to come on the separate estate pari passu with the separate creditors, is the case where a joint creditor is the petition- ing creditor, and is an excepted case from the general rule.(l) Mad- dock in his 1st vol. 463, considers this a singular exception to the gen- eral rule ; and the reason assigned for the adoption of the exception is, that the joint creditor, having petitioned for the commission of bank- ruptcy, it might be considered in the nature of a modified execution, taken out by him, as well for his own benefit as for that of the separate creditors; and that it would be against all equity to permit the separate creditors to prevent the joint creditor from reaping the fruits of an ex- ecution taken out for his and their mutual benefit. (1) See argument of Sir Samuel Komily in Ex parte Ackerman, 14 Vesey, Jr., 604, and the authioritics referred to by Vesey. 472 RIGHTS OF JOINT AND SEPAEATE CEEDITOES. Thus, without encroaching upon any decided case, and acting in strict conformity to the settled doctrines, it must be determined, that although Bennett is a certificated insolvent, yet as tlie separate estate of Dashiell is insufficient to pay his individual debts, the complainant, a joint cre- ditor of Bennett and Dashiell, cannot be permitted to come in pan fassu with the separate creditors of Dashiell. Decree affirmed. The respective rights of the two classes, of joint and incHvidual creditors, in relation to the partnership effects and to the separate estates of the partners, are diiferent, during the time that the partnership continues, and its effects are within the control of the partners and subject to the creditors at law, and after the partnership is broken up by bankruptcy, insolvency, or death, and the estate has gone into equity for distribution. The case Ja the matter of Smith expresses the relation of the two sets of creditors at law, and during the sol- vency and continuance of the firm : and M Cidloh v. Dashiell states the rule in bankruptcy and equity. These may be considered separately. I. At law, and while the partnership is going on. The private estate of a partner is subject both to his private creditors, and to the partnership creditors, who have against it precisely the same rights. (1) But upon the partnership effects, the joint creditors have a prior claim ; not by virtue of any inherent right or equity in them, but in consequence of the equity between the partners that the partnership accounts shall be settled before any .separate interest is drawn out; each partner being considered as holding his interest in the joint effects, subject to a trust for the partnership creditors, and the claims of his copartner, and only the residue for his own benefit. (2) Ac cordingly, the separate beneficial interest of each partner, in the joint property, in relation to his private creditors on execution or on a separate commission of bankruptcy, and to purchasers of his share, is his residuary share after the partnership accounts are settled. For a partnership debt, therefore, though there be judgment only against one partner, the entire joint property is sold absolutely ; [at all events in a suit brought against all the partners, some of them only being served and judgment being against one only ;](3) but when an (1) Newman f. B.agley and Tr., 16 Pickering, 570; Allen v. Wells, 22 Id., 460; Ladd v. Griswold et al., 4 Gilman, 25, 36; dicta in Bell v. Newman, 5 Sergeant &, Rawle, 78, 86. (2) This preference of the joint creditors, however, does not exist in the case of a secret partnership; Lord i;. Baldwin, 6 Picliering, 348; French et al. v. Chase, 6 Greenleaf, 166; though the contrary was held in Witter v. Richards, 10 Connecticut, 37, 40. (3) ["For the separate debt of a partner," said Gibson, C. J., in this case, " I admit, only his separate e.«tate can be sold ; and as by the contract of partnership, the debts are to be paid before capital or profits can be divided, it fjllows that he has no specific interest in the part- nership effects, but only in what may remain after the settlement of the partnership account, and nothing beyond can be levied. But for a partnership debt, the entire property in the specific thing must be sold, even in a judgment against one of the partners: because through the medium of the execution, the law compels him to make the same application of the joint MATTEE OF SMITH: m'cULLOH V. DASHIELL. 473 execution issues against one for his individual debt, and is levied on partner- ship property, the rule as stated In the Matter of Smith, and more fully in the learned note of Mr. Johnson, applies ; the property is sold subject to the part- nership debts and the claims of the other partner, and the interest vested in the purchaser is just that which the partner himself had, namely, the residual interest after the settlement of the firm accounts; and this principle has been repeatedly affirmed. (1) Moreover, a court of equity will not interfere to stop an execution at law, in such a case, until the partnership accounts have been taken ;(2) nor, in ordi- nary cases, will the court out of which the execution issues, interfere on motion. (3) To reconcile the various cases relating to the satisfaction of separate credi- tors out of partner.'ship property, it is necessary to distinguish between a com- mon law execution against tangible chattels, such as a fieri facias, and a foreign attachment, or proceeding in its nature, against a debt due to the firm, or prop- erty belonging to it in the possession of a garnishee. According to one class of cases a foreign attachment, or proceeding in the nature of a foreign attachment, against a debt or other chose in action, and also against chattels in the possession of a garnishee, by its very nature, attaches only upon the separate beneficial interest of the partner in the debt, or other subject, in the hands of the garnishee; because it is a part of the pro- ceedings to measure and adjudge what is the interest of the partner in the hands of the garnishee. It cannot, therefore, be maintained unless it be proved that the partnership is solvent, and be shown what interest the partner funds to tho joint debts, that it was undoubtedly competent to him to make voluntarily. TIio sheriff levies and sells the entire property, because the partner defendant has no specific share that may be levied and sold separately; and, even were that otherwise, yet unless the sale should work a dissolution of the partnership pro tanto, the remainder would not be the pro- perty of the other partners individually, but of the firm, and liable to execution by any other joint creditor: so that the sheriff might as well go on and levy the whole at once. Besides, as the other partners would be liable to contribution, their remaining interest in the effects sold, being carried into the partnership account, would entitle them to a credit exactly equal to what should be necessary to reimburse the partner defendant, the loss of his indivi- dual share ; so that the effect of selling a part of the whole, would, as between the partners themselves, be exactly the same; nothing being gained by the sale of an undivided interest but the embarrassment incident to a joint ownership by the purchaser and the firm."] Taylor A Fitzsimmons v. Henderson, 17 Sergeant & Rawle, 453, 457; and see dictum in Bagley >;. Osborn, 2 Wendell, 527, 531. (1) United States v. Hack et al., 8 Peters, 271, 276; Nicoll v. Mumford, 4 Johnson's Chan- cerj-, 523, 525; Averill v. Loucks, 6 Barbour's S. Ct., 20; Muir v. Leitch, 7 Id., 341; Knox et al. I'. Summers, 4 Yeates, 477; Donor, &c. u. Stauffer, Ac, 1 Penrose & Watts, 198; Snodgrass' Appeal, 1 Harris, 471 ; Pierce v. Jackson, 6 Massachusetts, 242 ; Commercial Bank v, Wilkins, 9 Greenleaf, 2S ; Fiiley v. Phelps, 18 Connecticut, 296,301; Morrison «. Blodgett et al., 8 New Hampshire, 238; Christian v. Ellis et als., 1 Grattan, 396; White v. Woodward & Band, 8 B. Monroe, 484 ; Ex parte Stebbins & Mason, R. M. Charlton, 77; Sutcliffe v. Dohrman, 18 Ohio, 181 ; see also Garbett v. Veale, 5 Queen's Bench, 408. (2) Moody V. Payne, 2 Johnson's Chancery, 548 ; Sitler & Johnson v. Walker, 1 Freeman's Ohancery (Kentucky), 77 ; see Brewster v. Hammet, 4 Connecticut, 640. (3) See Chapman v. Koops, 3 Bosanquet & Puller, 289; and Phillips v. Cook, 24 Wendell, 390, 401, 408. 474: RIGHTS OF JOINT AND SEPARATE CREDITORS. has in the firm effects after all the debts are paid;(l) but whether a court of law will, iu a foreign attachment, go thus into the partnership accounts, these cases do not appear to determine ; aud it must be considered doubtful, there- fore, upon the cases just cited, whether a foreign attachment will lie against partnership property for a debt due by one partner. In fact, the case of John- son V. King, 6 Humphreys, 233, decides, that an execution creditor of one member of a partnership is not entitled to judgment, in a garnishment (or attachment of execution) proceeding, against a debtor to the partnership. " Such debt," said Reese, J., delivering the opinion of the court, " belongs to, and is assets of the partnership, primarily liable to the satisfaction of partner- ship debts. If a judgment were given at law, upon the garnishment proceed- ing against the debtor to the partnership, to satisfy the separate liability of one of the partners, it would unjustly abstract a portion of the fund primarily belonging to the objects and purposes and creditors of the concern. And, in such garnishment, nothing can be done but to give or to refuse judgment. The court has no power to impound the debt, until by the adjustment of all the partnership affairs, it shall appear whether the separate debtor of the execution creditor has any, and what interest iu the general surplus, or in the particular debt so impounded. Such proceedings cannot take place at law." In Penn- sylvania and South Carolina, and perhaps some other states, the practice in for- eign attachment is different : on the attachment of a debt, a part, proportionate to the partner's interest in the concern, is adjudged to the creditor, subject in the latter state, to a refunding bond ;(2) and on the attachment of chattels in possession of the garnishee, the whole is seized, as on a common law execu- tion. (3) But the distinction established in the first class of cases, between a foreign attachment and a common law execution, appears to be a necessary con- sequence of the modern rule in regard to a partner's interest in the partnership effects : because, in foreign attachment, the court adjudges what is the partner's interest in the hands of the garnishee, and then gives its proceeds to the cre- ditor, but on a common law execution, that interest, without its beiug deter, mined what it is, is sold, and it is left to the purchaser to have its quantum settled. The proceeding in Pennsylvania and South Carolina, on the attach- ment of a debt due to the partnership, is certainly anomalous. It is either the legal or the beneficial interest of the partner that is severed and detached by the judgment against the garnishee; but the former, which is merely a right of action, cannot be divided, and the latter cannot be determined without a settle- ment of the accounts. There is no doubt that the writ of attachment, existing in some of the New England States, as an ordinary mesne process, may, for an individual debt, be levied on partnership property, so far as the debtor has an interest in it, subject to the prior claims of the partnership creditors ;(4) but how it is to be (1) Fisk et al. v. Herrick and Trustees, 6 jMassachusetts, 271 ; Lyndon c Gorham, 1 Gralli- eon, 367 ; Church v. Knox, 2 Connecticut, 51-t; Barber i'. Hartford Bank, 9 Id., 407; Winston V. Bwing, 1 Alabama, 129. (2) M'Carty i'. Emlen, 2 Teates, 190; 2 Dallas, 277, Yeates, J., dissenting; Schatzill . Calhoun, 12 Leigh, 265, 273. (2) Smith V. Jackson, 2 Edwards, 28; Cox v. McBurney, 2 Sandford'a S. Ct., 661, 566; Wooldridge v. Wilkins et al., 3 Howard's Mississippi, 260, 372 ; dictum of Hosmer, C. J., in Sigourney v. Munn, 7 Connecticut, 11, 17. COLES V. COLES: DYER V. CLARK. 497 of creditors to make the purchase ; nor was there any agreement that the pro- perty thus owned in common should become partnership stock, or constitute any part of the capital of the company. It was agreed by parol only, that this property should be improved, by the company, in the prosecution of its busi- ness; but this agreement extended only to its temporary use. It did not, nor could it, affect the title to the land, even as between the parties, much less as the rights of others might be involved." With regard to the object and extent of this equitable conversion, the prin- ciple appears to be this. In the case of land held in common, at law, the seve- ral interests of the owners are definite and ascertained : in case of partnership property, the several share of each partner is the residue of interest after the debts of the firm are paid, and the claims of the other partner are satisfied. The purpose of equity is to transform the interest of the partners for this object and to this extent, only ; to afiect the legal estate of either partner with a lien in favour of the joint creditors and the other partner. The persons in favour of whom, and against whom, this trust or lien will be recognised, are easily ascertained by a reference to these objects. The lien will be enforced in favour of a continuing or surviving partner, and in favour of the creditors of the firm, who are considered as subrogated to the equities of the partners between one another, whether the creditors act in their own persons, or claim through an assignee of the firm, or the surviving or acting partner seeks to recover for their benefit : and against a retiring partner, his personal representatives, heirs, and widow ;(1) but in Smith v. Jackson,2 Edwards, 28, 36, the right of dower to the extent to which the deceased partner had the leg;il title coupled with a beneficial ownership was held to be paramount. It will be enforced against a purchaser from the partner or his representatives, with notice, actual or constructive, that the real estate is partnership property; (2) but not against a bona fide purchaser or mortgagee without notice. (3) Whether in case of insolvency it will be enforced against the separate creditors of one partner, is a matter of some uncertainty. If the separate creditors have notice, before becoming creditors, that the land is partnership property, there is no reason why they should not be postponed to the joint creditors,(4) and some cases(5) are express to the general principle that when land is partnership property, it is subject to the rule which in case of insolvency appropriates the joint estate to the joint creditors; but in all these cases, the real estate was in the posses- sion and use of the firm as partnership property which might have been con- sidered as operating as constructive notice of the partnership trust, and it is (1) See Greene v. Greene, 1 Hammond, 535; Sumner v. Hampson and others, 8 Id., 328; Heirs et ala. of Pugh v. Currie, 5 Alabama, 446; Andrews's Heirs v. Brown's Adm'r, 21 Id., 437; Dyer t;. Clark; Howard and others v. Priest and another; Burnside and others v. Mer- riok and others ; Buchan v. Sumner, 2 Barbour's Chancery, 168, 200. (2) Edgar ». Donnally, 2 Munford, 387; Hoxie v. Carr et al., 1 Sumner, 174, 192. (3) M'Dermot v. Laurence, 7 Sergeant & Rawle, 438; Forde v, Herron, 4 Munford, 316> Frink ti. Branch, 16 Connecticut, 261, 271; Buchan v. Sumner, 2 Barbour's Chancery, 168, 198 ; dictum in Dyer v. Clark, 5 Motcalf, 562, 580. (4) As in Divine, &e. v. Mitchum, 4 B. Monroe, 488; and see Martin c. Trumbull, Wright, 387. (6) Dyer v. Clark, and Burnside and others o. Marrlck and others, Winslow v. Chiffelle Harper's Equity, 25, and Boyers_^c. Elliott, 7 Humphreys, 204. VOL. I. — 32 498 REAL ESTATE HELD BY A PARTNERSHIP. impossible to say that that did not form an essential part of the decision of the court in those cases. The authority of these cases extends to the principle that land purchased with partnership funds and used in the partnership business, is partnership stock as against the separate creditors. In Hale v. Henrie, 2 Watts, 1-13, confirmed in Ridgway et al's. Appeal, 15 Penna. State, 181, under the recording acts of Pennsylvania, it was held that where the title on record is to the partners as tenants in common, the legal interest of one will be liable to his creditors, unless the intention to bring the real estate into the partnership stock is manifested by deed or writing placed on record, that purchasers or creditors may not be deceived; but if notice of the partnership title be put on record, the joint creditors will have a preference ;(1) and see Forded. Herron, 4 Mun- ford, 316, which perhaps stood upon the right of a creditor rather than a pur- chaser. In Blake v. Nutter, 19 Maine, 16, and Goodwin v. Richardson, Adm'r, 1 1 Massachusetts, 469, 475, also, the right of the separate creditor was upheld ; but these were cases at law, in which it was expressly admitted that in equity the rule might be different. There is undoubtedly great force in the suggestion made in Hale v. Henrie : and if there be a conveyance to partners as tenants iu common, and no notice in the deed that the land is partnership property, and tlie land be not used as partnership property, no case goes so far as to say that a private agreement between the partners could affect the land with a lien in favour of the joint creditors, to the postponement of the separate creditors; and such an extension of the lien it is believed, would be opposed to settled rules of equity. And see the reasoning in Frink v. Branch, 16 Connecticut, 261, 271. Whether real estate held as partnership stock is to be considered as converted into personalty as between the heir and administrator of a deceased partner, has been discussed, but not settled :(2) the subject has become confused from not attending to a distinction between this case and those before considered. A conversion as between the heir and personal representative, will not be effected by an agreement between the partners to consider their land as partnership stock, in relation to creditors, nor result from the operation of the lien previously men- tioned. It can be effected only through the medium of another agreement, ex- press or implied, that the land shall be sold as partnership stock, upon the dis- solution of the firm by the death of one partner. An express covenant of that nature will be enforced in favour of the surviving partner, and the proceeds of the sale will go to the administrator of the deceased partner; and this is the extent of the authority of Toimaend v. Devaynes, before Lord EIdon.(3) Pro- bably, also, it would be enforced on application of the administrator himself. The diflSculty is in determining from what circumstances such an agreement may be implied. The mere circumstances, that the land is bought with part- nership funds, and used for partnership purposes, it is supposed, will not be sufficient to convert the land into personalty as between the heir and adminis- (1) Lancaster Bank v. Myley, 1 Harris, 544, 560 ; see also Kramer v. Arthurs, 7 Barr, ]C5, 170. (2) See tbe Englisli cases reviewed in Eandall v. Randall, 7 Simons, 271 ; and see Hough- ton V. Houghton, 11 Id., 491 ; Hoxie u. Carr et al., 1 Sumner, 174, 18,3 ; Pierce's Adm'r, &c. v. Trigg's Heirs, 10 Leigh, 408, 421 ; Delmonico v. Guillaume, 2 Sandford, 366, 368 ; Buchan «, Sumner, 2 Barbour's Chancery, 168, 201. (3) Jacob's Roper on Husband and Wife, 1, p. 346. COLES V. COLES: DYER Y. CLARK. 499 trator.(l) " When all the claims against the partnership have been satisfied," it was said in a late case,(2) "the partnership account adjusted, and the object of the trust fulfilled, in case, where the partners have not either by an express or implied agreement, indicated an intention to convert their lands into personal estate ; no solid reason can be assigned, why the real estate should not be treated in a court of equity, as at law, according to its real nature, and conse- quently chargeable with the widow's dower." But where an agreement that the real estate of the firm should be sold on the death of one part- ner, exists, or can be implied, such a conversion may be enforced by the administrator as against the heir. It is a consequence of the principle of land being affected with a trust as partnership property, that when one partner disposes of his separate interest in land held as partnership stock to a purchaser having notice, he sells only his residuary interest after the partnership debts, and the share of the other part- ner, are paid. But though in equity land is thus affected with trusts in the nature of personal estate, the land does not become personal property in such a way as to give one partner an implied power to dispose of the whole partnership interest in it. As regards the power of disposition, land held as partnership stock is not subject to the rule which makes each partner the agent of the firm. Neither can sell more than his own undivided interest, unless he have from the other a sufficient special authority for the purpose. (3) An authority to convey must, probably, be in writing, under the Statute of Frauds, but an authority to contract to convey need not be, and if such a contract be made by one in the name of the firm, and be authorized or ratified by the other by parol, expressly or impliedly, it will bind the firm. (4) [With regard to the mode of giving effect to the general equity, it has been decided that the surviving partner has the right in equity to sell the real estate, and that although his deed cannot pass the legal title (which has gone, of course, to the heir at law) yet it will convey the equity to a purchaser, and through such equity the purchaser may compel this heir at law to convey it to him.] (5) (1) Buohan v. Sumner, 2 Barbour's Chancery, 168, 20X; see Teatman v. Woods, 6 Yerger 20, citing M'Alister v. Montgomery, 3 Haywood, 94 ; and see Smitli et al. v. Wood, Saxton's Chancery, 76, 82. (2) Groodburn and Wife v. Stevens et a!., 5 Gill, 227. And see Lang's Heirs v. Waring, 17 Alabama, 145; Andrews's Heirs ». Brown's Adm'r, 21 Id., 444, and Buckley ». Buckley, 11 Barbour, 43. (3) Anderson & Wilkins v. Tompkins et al., 1 Brookenbrough, 457, 463 ; Tapley v. Butter- field, 1 Metoalf, 515, 518. (4) Lawrence v. Taylor, 5 Hill's N. Y., 108, 112; see Pitts v. Waugh et al., 4 Massaohu- setts, 424. (5) Andrews's Heirs v. Brown's Administrator, 21 Alabama, 437. 500 INTEEEST. INTEREST. PRINCIPLES OF ALLOWANCE AND MODE OF COMPUTING INTEREST. SELLECK AND OTHERS v. FRENCH. In the Supreme Court of Errors of the State of Connecticut. JUNE, 1814. [reported from 1 CONNECTICUT, 32-35.] In an action of book-debt for certain advancements made by the plaintiff for the defendant's use, it appearing that there had not been mutual dealings between the parties, that the debt was due, and payment had been unreasonably delayed ; it was held that interest was allowable, though the account was unliquidated, and there had been no agree- ment to pay interest, nor could it be claimed by virtue of any particu- lar custom. In what other cases interest may be allowed. This was an action of book-debt ; and the only question was whether interest ought to be allowed. It appeared that a sum was due to the plaintiff for advancements ; that there had been no mutual dealings ; that the debt had not been liquidated by the parties ; that the plaintiff was not a merchant ; and that there was no special agreement or custom to pay interest. Inter- est was allowed by the Court ; and to this the defendant objected, be- cause there was no contract or custom to pay it. The legality of this allowance was the question before the Supreme Court. R. M. Sherman and .BmeZ?, for the plaintiifs in error, contended that interest ought not to have been allowed. They cited De Haviland v. Bowerbank, 1 Campbell, 50 ; De Barnales v. Fuller & al., 2 id. 426 ; Gordon v. Swan, 12 East, 41 9 ; Walker v. Constable, 1 Bos. & Pull. 307 ; Blaney v. Hendricks & al., 3 Wilson, 206 ; S. C. 2 W. Black- stone, 761 ; 2 Comyn on Contracts, 206 ; 2 New Reports, 206, n. (1), (Day's edit.) ; Swift on Evidence, 84, 85. J. Backus, for the defendant in error. Swift, J. Interest by our law is allowed on the ground of some con- tract express or implied to pay it, or as damage for the breach of some contract, or the violation of some duty. SELLECK V. FEEJSrCH. 501 1. Interest will be allowed in all cases where there is an express con- tract to pay it. 2. The law will imply a contract to pay interest where such has been the usage of trade, or the course of dealings between the parties. Where it is known to be the custom of merchants or others to charge interest on their accounts for goods sold after a certain term of credit, the law will presume the purchaser promises to pay such interest. So where in accounts settled interest has been charged and allowed, and the account afterwards continued, it will be presumed that interest was agreed to be paid. 3. Where there is a written contract to pay money or other thing on a day certain, and the contract is broken, then interest is allowed by way of damage for the breach, as in the case of notes and bills of ex- change. Though a policy of insurance contains no certain day on which the losses are to be paid, yet interest will be computed from the time the money becomes due. 4. Where goods are sold and delivered, to be paid for on a day cer- tain, and are charged on book, interest will be allowed after the term of credit has expired. If partial payments are made, interest will be al- lowed on the balance, though the account is unliquidated. 5. Where one has received money for the use of another, and it was his duty to pay it over, interest is recoverable for the time of the delay ; but if the holder of money for another is guilty of no neglect or delay, he will not be chargeable with interest. 6. Where money is obtained by fraud or deceit, and the party injured, waiving the tort, brings his action on the implied promise, interest will be allowed as damages. 7. Where an account has been liquidated, and the balance ascertained by the parties, interest will be allowed thereon, unless there should be some agreement to delay the payment. 8. Where articles are delivered, or services are performed, and charged on book, and no time of payment agreed on ; yet if it appear from the nature of the transaction that they were to be paid for in a reasonable time, and not to rest on book as a mutual account ; then if payment be unreasonably delayed, interest will be recoverable as dam- ages, though partial payments have been made, and the account has not been liquidated. If one should make advances for the benefit and at the request of another, or a mechanic should perform some considerable piece of work, as building a house, or a farmer should sell the produce of his farm, as his wheat, beef, &c., it could not be presumed that they were to rest on the footing of a mutual account on book, but that pay- 502 INTEREST. ment was to be made when the advancements were closed, the work com- pleted, and the produce delivered ; of course, interest would be charge- able on such accounts if unreasonably delayed, though partial payments have been made, and the accounts were unsettled ; for here has been a breach of contract. 9. But where there are current accounts founded on mutual dealings, unless there be some promise or usage to pay interest, it will not be allowed ; for in such cases no time of payment is stipulated, each party is making payment, the balance is constantly varying, it is understood that the demands are to remain on book, and the presumption is that interest is not to be allowed ; such is the case of farmers, and mechanics, in their mutual intercourse. Such are the principles which have been long established in this state. In England there have been contradictory decisions ; but it has been lately decided, that interest ought to be allowed only, where there is a written contract for the payment of money on a day certain, as on bills of exchange, and promissory notes ; or where there has been an express contract ; or where a contract can be presumed from the usage of trade, or course of dealings between the parties ; or where it can be proved that the money has been used, and interest actually made.(l) Interest has been refused in actions for money obtained by fraud ;(2) for money received to the plaintiff's use ;(3) for goods sold and delivered payable at a certain time ;(4) on liquidated accounts, and on policies of insu- rance. (5) But where goods have been sold to be paid for on a certain day in a bill of exchange, if the bill is not delivered, interest is allowed, because the bill would have drawn interest.(6) These rules do not ap- pear to be either founded in justice, or consistent with each other. There is the same reason to allow interest for not paying money by the time it is due in the case of policies of insurance as of notes and bills of exchange; in the case of parol as of written contracts. Why should a man be liable to pay interest on a contract to deliver a hill of exchange in payment for goods on a certain day, and not be liable on a contract to pay the money for goods on a certain day ? It is as valuable to receive money in hand, as a bill drawing interest. Why should the defendant be liable to pay interest, if it can be proved that (1) De Haviland v. Bowerbank, 1 Campbell, 50; De Bernales v. Fuller et al., 2 Id., 426. (2) Crookford v. Winter, 1 Id., 129. (3) De Bernales v. Fuller et al., 2 Id., 426. (4) Gordon v. Swan, 2 Id., n. (5) Kingston v. M'Intosh, 1 Id., 518. (6) Becher v. Jones, 2 Id., 428, u. ; Porter et al. v. Palsgrave, 2 Id., 472; Boyoe et al. v. Warburton, 2 Id., 480. SELLECK V. PEENCH. 503 he has made interest by the use of it, and not liable if he has made none ? It is immaterial to the plaintiff what use the defendant has made of the money ; the injury to him is the being kept out of the use of it himself. In this case, it appears that there were not mutual dealings ; the ad- vancements were all on the part of the plaintiff. It is not denied, that the debt was due, and the payment unreasonably delayed ; of course, the defendant became liable to pay the interest, though the account was not settled, and there was no promise or usage to pay it. The other judges were of the same opinion. Judgment afiBrmed. Iq addition to the principal case, the reader will find the subject of interest discussed at large in numerous cases cited below. (1) The remarks hereafter following refer to the law as established in this country generally; for in Eng- land the subject of interest has been viewed differently, in many respects. See Atwood V. Taylor, i Manning & Granger, 280, n. (b), 332 ; [and in some States of our Union, as in Illinois, there are statutes which somewhat effect the gene- ral principles of our law.](2) Interest is a compensation for the detention or use of money. The right to it, as to other compensation, rests on two grounds : One of them, an actual agreement. (1). Express, or (2). Implied in fact, to allow it. The other, damages given by law. (3). For a default in the payment of a debt, or (4). For a use or benefit derived from the Tnoney of another. There are differences between the case where interest is due by agreement, and the case where it is due as damages : and the liability, in damages, for the wrongful detention of a debt, is a distinct principle from liability to make com- pensation for a use or benefit derived from the money of another. The different methods in which interest may become due, may be considered in order. I. An agreement to pay it, either generally, or at specified limes. An express agreement to pay interest, will give a valid title to recover it, although the principal debt be not due at the time when the interest is made payable J (3) and an agreement to pay interest half-yearly or quarter-yearly on (1) Beid V. Rensselaer Glass Factory, 3 Cowen, 393; S. C, on error, 5 Id., 589; Peirce et al., Ex'rs v. Rowe, 1 New Hampshire, 179 ; Mollvaine v. Wilkins, 12 Id., Hi, 479 ; Ex'rs of Pawling «. Adm'rs of Pawling, 4 Yeates, 220; Troubat v. Hunter, 5 Rawie, 267 ; Bainbridge k Co. ». Wiloooks, Baldwine, 536 ; Hammond v. Hammond, 2 Bland's Chancery, 367-384. (2) See Samis v. Clark et al., 13 Illinois, 546. (3) Fake ». Eddy's Bx'r, 15 Wendell, 75, 80 ; Stearns et al. v. Brown et ux., 1 Pickering, 530, 533; Bdgerton v. Aspinwall, 3 Connecticut, 445, 449; Bannister v. Roberts, 35 Maine, 76. 504 INTEREST. a note payable a year after date, is valid and enforceable ;(1) though if nothing be said as to the time when the interest is to be paid, — as if one agree to pay another $900 in three years after date with interest," the interest will be pay- able only at the expiration of three years, and not annually ; Cooper's Adm'r v, Wright, 3 Zabriskie, 200. If due by simple contract, assumpsit will lie for the interest as it falls due;(2) [but a general indebitatus count in assumpsit without stating the nature of the indebtedness, is not an appropriate form of de- claring on an indebtedness for interest due to the plaintiff by the defendant not being money of the plaintiff received by and in the hands of the defendant ;](3) and in case of a bond conditioned for the payment of a sum at a future day, with interest to be paid annually from the date, it was decided in Sp'irks v. Garrigues, 1 Binney, 152, that upon default made in thepayment of a year's inte- rest, an action of debt on the bond might be brought, and judgment entered for the penalty, and execution awarded for the interest due, with leave to move the court for execution on the falling due of the principal, or of future instalments of interest ; though probably now under Lortgstreth & Oooh v. Gray, 1 Watts, 60, there must be a scire facias for the future instalments of interest on a bond without warrant. An instrument payable at a future day with interest, carries interest from the date;(4) and if payable at a future day with a certain rate of interest from the date, it carries that interest of course till the day of payment; [what interest it carries after that, whether the rate agreed on for the previous time, or the ordinary rate of the place — is a matter which has been decided in opposite ways.] In Ludwick v. Huntzwger, 5 Watts & Sergeant, 51, 60, where the contract was for payment on a fixed day, with interest at 3 per cent, it was held that if the debt was not paid on the day, the subsequent interest should be at 6 per cent. But in Kohler v. Smith, 2 California, where one gave a note for $1,000 payable two months after date, with interest at 5 per cent, j;'"?' month, it was held that if he did not pay at the end of two months, he was to be charged at this rate of 60 per cent, per annum, and not at the ordinary statute rate of 10 per cent, per annum. An agreement to pay money on de- mand will not carry interest until demand made, and service of a writ is demand ;(5) an agreement to pay money at a certain time after date, and if not then paid, to pay interest from the date, is according to the best authorities, a valid agreement, and in case of default, interest may be recovered from the date ; Rumsey, &c. v. Maltfiews, 1 Bibb, 242 ; Gully v. Eemy, 1 Blackford, 69; Horner v. Hunt, Id. 214; Sutterihwite v. M'Kie, Harper's Law, 397; Alexander v. Troutman, 1 Kelley, 469, in which last case the subject is well discussed. See also Fisher v. Eohinson, 3 Chandler, (Wisconsin,) 99; but in contradiction to this, it was decided in Dinsmore v. Hand, Minor, 126, and Henry & Winston v. Thompson, &c., Id. 209, that upon such an agreement, in- tei'est is in the nature of a penalty, and is not recoverable ; and see to a simi- lar purport, Mayo v. Judah, 5 Munford, 495, and Waller v. Long, 6 Id. 71 : (1) Mowry v. Bishop, 5 Paige, 98, 100 ; Wiloox •;. Howland, 23 Pickering, 167, 168. (2) Greenleaf r. Kellogg, 2 Massachusetts, 568; Cooley v. Rose, 3 Id., 221. (3) Brooks v. Holland, 21 Conneoticut, 388. (4) Winn v. Young, 1 J. J. Marshall, 51 ; Inglish et al. v. Watkins, 4 Pike, 2(10 ; Pate v. Gray, 1 Hempstead, 156; Ewer v. Myrick, 1 Gushing, 16; Roffey v, Greenwell, 10 Adolphus & Ellis, 222. (5) Maxcy v. Knight, 18 Alabama, 304. SELLECK V. FRENCH. 505 it was admitted, however, iu these cases, that an agreement to pay at a certain time a certain sum with interest, and if paid punctually, the interest to be remitted or lowered, was a valid agreement for interest in case of default; and the same point was decided in Ely v. Witherspoon, 2 Alabama, 131. In Dag- gett V. Pratt, 15 Massachusetts, 177, several notes were payable at distant days ; some with interest at three per cent, per annum if paid at maturity, " if not, six per cent, interest to be paid;" and one payable without interest "until the note is out, if not paid then, lawful interest until paid ;" and the notes, not being paid at maturity, these were held to take effect as valid agreements for interest from the date of the notes. In Hmoe v. Bradley, 19 Maine, 31, inte- rest due by agreement on a negotiable note payable some years after date, was held to be so far a mere incident to the debt, that an endorser was liable for the interest on notice of the non-payment of the principal : but one judge dis- sented. As to the question whether a promise to pay interest on a debt due, is a consideration for an agreement to give time, though it has been said in some cases that an agreement to pay interest on a debt legally carrying interest is not a consideration ; see Reynolds v. Ward, 5 Wendell, 501 ; Gahn v. Niemcewicz, 11 Id. 312 : yet in other cases this distinction has been taken, that an agreement to pay interest on a debt due, for a certain specified time, as, for six months, is a legal consideration, because as, otherwise, the princi- pal might have been paid at any time, the creditor was not secure of his interest for a single day; and though this was held in a case where the original con- tract did not stipulate for interest, yet it was said that the same reason would apply where it did.(l) Where money is lent, upon an agreement to be paid on a day certain, with lawful interest, payable at appointed times, the creditor can- not pay the principal before the appointed time, nor can he stop the interest, by tendering the principal before that time ; for the time is a part of the con- tract, and is made so for the benefit of the creditor. (2) II. An agreement implied from the custom, of a place or trade, or from the course of dealing between the parties, or the usage of one, known and acquiesced in hy the other, will give a right to interest, where interest would not otherwise be chargeable, as in open current accounts. (3) III. Compensatory damages for a default made in th§ payment of a debt. In England, now, by St. 3 & 4 Wm. IV., c. 42, s. 28, the jury may, if they shall think fit, allow interest, not exceeding the current rate, on all debts or sums certain, payable at a certain time or otherwise, from the time when they ■*ere payable, if payable by a written instrument, at a certain time, or if pay- able otherwise, then from the time when demand of payment shall have been made in writing, so as such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the term of payment. (4) But in England, before this statute, the general rule was, that interest was not recoverable, unless expressly reserved by the contract, or the payment of it was to be implied from the course of dealing between the parties, or from the usage (1) Bailey v. Adams, 10 New Hampshire, 162; see also Crosby v. Wyatt, Id., 318, .323, and Merrimack Co. Banlj v. Brown, 12 Id., 321, 325. (2) Ellis V. Craig, 7 Johnson's Chancery, 7. (3) Liotard v. Graves, 3 Caines, 226, 234, 245 ; Williams i>. Craig, 1 Dallas, 313, 315 ; Koons V. Miller, 3 Watts & Sergeant, 271; Meech v. Smith, 7 Wendell, 316, 318; and see Dodge v. Perkins, 9 Pickering, 3ri9, 385. (4) See Harper v. Williams, 4 Queen's Bench, 219, 234. 506 INTEREST. of trade. (1) The case of Arnot v. Red/em, 8 Bingham, 353, allowing the jury to give interest for the wrongful detention of a debt, seems to have been over- ruled in Fa(/e v. Newman, 9 Barnewall & Cresswell, 378. In this country, the general principle has long been settled, that if a debt ought to be paid at a particular time, and is not then paid, through the default of the debtor, compensation in damages, equal to the value of the money, which is the legal interest upon it, shall be paid during such time as the party is in default. (2) Interest is considered as incident, legally, to every debt certain in amount, and payable at a certain time. In People v. New York, 5 Cowen, 331, 334, the general principle was stated, " that whenever the debtor knows pre- cisely what he is to pay, and when he is to pay, he shall be charged with inte- rest, if he neglects to pay :" and a similar rule is laid down in Dodge v. Per- kins, 9 Pickering, 369, 385. In Crawford et al. v. Willing el al., 4 Dallas, 286, 289, the court said, " whatever may have been the doctrine in former times, we have traced, with pleasure, the progress of improvement, upon the subject of interest, to the honest and rational rule, that, wherever one man retains the money of another, against his declared will, the legal compensation, for the use of money, shall be charged and allowed." In Ohermyer v. Nichols, 6 Binney, 159, 162, Tilghman, G. J., said that interest is now allowed, gene- rally, in all cases, where one person detains the money of another unjustly and against his will, and that it is considered as a compensation for the damages sustained by the plaintiflf, in consequence of the defendant's breach of contract; [and we find this rule of the eastern part of our continent prevailing in the ex- treme west; for in Davis v. Greely, 1 California, 422, "Interest," says Has- tings, C. J., in giving the opinion of the court, "is generally regulated by sta- tute; but in the absence of any statute, has been allowed by way of damages. From this it is not to be inferred that an extraordinary rate of interest shall in any case be permitted ; but that in the absence of statutes, as a rule for equitably adjusting the amount of damages, the usual annual rate of interest may be adopted." So fundamental is this rule that it applies to claims against infants; and an infant is liable for interest on a charge, such as that for necessaries, which, in its principal, is obligatory on him, Bradley v. Pratt, 23 Vermont, 380.] In all cases, the question seems to be, whether the debtor is legally in default. When a bond, note, or other instrument is expressly payable at a time certain, the debtor is in default if he does not pay at that time, and interest runs from the day of payment. (3) And if a note be payable at a fixed time, as at one day after date, and there be a subjoined agreement that suit shall not be brought so long as the maker is alive, or the payee is satisfied that he is solvent, interest still runs from the time the debt is legally due (4) Where an obliga- tion was payable " in the month of June next," it was decided thiit interest did not commence until after the last day of the month. (5) Where a note is for (1) See Fruhling v. Schroeder, 2 Bingham's N. C, 77, 79. (2) [But it must be claimed in some form in the declaration, and hence, in an assumpsit for goods sold and delivered, where the declaration contained no count for interest, and it was not claimed in the bill of particulars, it was held that it could not be recovered on proof of a special agreement to pay. De Groot v. Darby, 7 Richardson, 121.] (.3) Jacobs V. Adams, Executor, 1 Dallas, 62. (4) Powell, Adm'r, v. Guy, 3 Devereux & Battle, 70; Rollman, Adm'r, u. Baker, (fco.,5 Hum- phreyp, 406. l5) Pollard v. Toder, 2 Marshall's Kentucky, 264, 267. SELLECE V. FEENCH. 507 the payment of a sum in several annual instalments, interest is payable on the instalments as they become due, and not annually on the whole sum.(l) A note or bond payable without any time specified, is in law payable imme- diately ;(2) and interest runs from the day of the date. (3) But where a note or bond is payable on demand, or on request, although it is suable at once, yet the debtor is not considered in default until demand is made, and therefore in- terest runs only from the time of a demand in pais, or of suit brought, which is a judicial demand; (4) and the rule that interest runs from the time of de- mand applies to a note payable on demand for money lent on the day of the date; Schmidt v. Limehouse, 2 Bailey, 276; Pullen v. Chase, '^ Pike, 210, confirmed in Walker v. Wills, 5 Id. 167, which allowed interest from the date of a note payable on demand, proceeded on the construction of a statute. See Ringo V. R. E. Bk. 8 Eng. (13 Ark.) 584. In cases of a contingent liability, such as that of a surety, the party is not considered as in default until notice or demand, and interest does not begin to run till then. Thus, on a guaranty of the payment of notes, not exceeding in all, a certain amount, that should be discounted by a bank for another, it was decided that the party was liable to the extent of the guaranty, for all unpaid notes, with interest from the time that notice of non-payment was given. (5) The same principle applies to an action on the bond of a surety in an indemnity bond : for though it is said in some cases, in a general way, that judgment may be entered for the penalty, with interest from the time of the first breach, or the time it is due by the breach ;(6) yet it is to be understood that, in general, interest, as against the surety, begins to accrue on the penalty, and on the debt if less than the penalty, only from the time of a demand on the surety or notice to him, in pais, or by suit, or something equivalent to a demand or notice ;(7) such as an order of the court fixing his liability, in case of an administration bond. (8) Bail are liable for interest on the judgment, from the return of the ca. sa., for they are fixed from that time, and are bound to take notice of the proceedings of the court. (9) (1) Bander v. Bander, 1 Barbour's S. Ct., 560. (2) Sheehy v. Mandeville, 1 Cranch, 208, 2ir. (3) Farquhar v. Morris, 7 Term, 124 ; Francis v. Castleman, 4 Bibb, 282 ; Collier v. Gray, Overton, 110; Rogers v. Colt, 1 Zabriskie, 19; Purdy v. Phillips, 1 Duer, 369; confirmed 1 Kernan, 406. (4) Dodge V. Perkins, 9 Pickering, 369, 386; Hunt v. Nevers, 15 Id., 600, 605 ; National Lancers v. Levering, 8 Foster, 611; Breyfogle v. Beckley, 16 Sergeant & Rawle, 264; Bart- Ictt ... Marshall, 2 Bibb, 467, 471; Patrick v. Clay, 4 Id., 246; Dillon v. Dudley, 1 Mar- shall's Kentucky, 66; Nelson v. Cartmel's Adm'r, 6 Dana, 7; Cannon ti. Beggs, 1 M'Cord, 370; Wells V. Abernethy, 5 Connecticut, 222, 228; Scudder et al. v. Morris, Pennington, 419 o ; Vaughan v. Ooode, Minor, 417 ; or something equivalent to a demand; Ringo v. R. E. Bank, 8 English, (13 Ark.) 684; Etheridge v. Binney, 9 Pickering, 272, 279. (5) Washington Bank v. Shurtleff, i Metoalf, 30, 33. (6) Carter v. Carter, 4 Day, 30, 36 ; Lewis v. Dwight, 10 Connectiont, 96, 103; United States V. Arnold et al., 1 Gallison, 348, 360; S. C, 9 Cranch, 104; Perit v. Wallis, 2 Dallas, 252 ; and see Judge of Probate v. Heydook et als.. 8 New Hampshire, 492, 494. (7) Bank of the United States v. Magill et al., Paine, 662, 670; S. C, 12 Wheaton, 512; Mower v. Kip, 6 Paige, 89, 92 ; Heath v. Q^y, 10 Massachusetts, 371 ; Boyd u. Boyd, 1 Watts, 365, 369 ; State v. Bird, 2 Richardson, 99 ; Campbell .;. Bruen, 1 Bradford's Surrogate, R., 225, 234. (8) Richardson v, Richardson & Spann, 1 McMuUan's Equity, 103. (9) Constable v. Golden, 2 Johnson, 480, 508 INTEREST. Where a note is stipulated not to be payable until the payee shall do some act, notice of the performance of the act must be given before interest begins to accrue, as the act lies more in the knowledge of the party who is to do it;(l) but where there is an agreement to pay money on the happening of a particular event, not particularly within the power or knowledge of the creditor, interest begins to run from the time when the event occurs, without a necessity for notice; accordingly, where on a sale of land, and a partial payment, an engage- ment was given to pay the residue of the purchase-money on extinction of the wife's dower by release or death, it was decided that interest ran from the wife's death, and not merely from notice of it, the occurrence being equally within the knowledge of either party. (2) In Lang v. Braihford, 1 Bay, 222, and Adm'rs of AA v. Ex'rs of Brewton, Id. 243, the distinction was taken, that where a bill of exchange, payable at so many days, is accepted generally, the acceptor is liable for interest from the expiration of the time without a demand, but that where it is made or accepted payable at a particular banking house, a demand must be made at that place, to entitle the party to interest : but in Miller v. Bank of Orleans, 5 Wharton, 503, this distinction was not supposed to exist, and it was held that the acceptor of a bill payable at a bank was liable for interest, though the bill was not presented for payment at the bank, if he had not funds in the bank ready to be appropriated to the payment of the bill ; and was not liable if he had. Interest is due from the state as from indi- viduals ;(3) but unless expressly agreed to be paid, is due in general only from the time of demand. (4) There has been much discussion with regard to the allowance of interest on rent arrear : and the distinction appears to be between rent, in the strict sense, as a real estate in the person reserving it, and a personal contract to pay a cer- tain sum as rent. In the former view, interest is not due on rent in arrear, because rent issues out of the land, and because it is demandable on the land, and because the landlord has in his own hands the means of taking it by dis- tress or entry. Accordingly, when the landlord proceeds against the land by real remedy, he does not recover interest on the rent in arrear. On a distress, therefore, [unless as in Virginia where statute gives it](5) interest cannot be distrained for, but only the precise rent due;(6) and if the landlord enter under a clause giving a right to re-enter and hold till the arrears of rents are dis- charged, he can hold only till the arrears, without interest, are paid ; and therefore, in Pennsylvania, the lien of arrears of rent, which is created by that clause of re-entry, extends only to the arrears and not to interest upon them. (7) (1) Hodges V. Holeman, 2 Dana, 396. (2) Troubat II. Hunter, 6 Rawle, 257. (3) Kespublica v, Mitchell, 2 Dallas, 101; The People v. The Canal Commissioners, 5 Denio, 401. (4) Attorney-General v. Cape Fear Navigation Co., 2 Iredell's Equity, 4+4, 456 ; Milne v. Eempublicam, 3 Yeates, 102; see Adams v. Beach, 6 Hill's N. Y., 272; and Auditor v. Dugger et al., 3 Leigh, 241; see also, Pawlet v, Sandgate, 19 Vermont, 622, 633. (5) Brooks v. Wilcox, 11 Grattan, 419. (6) Lansing v. Rattoon e, 6 Johnson, 43; Longwell & Ege v. Ridinger, 1 Gill, 57; (but see Albright v. Pickle, 4 Yeates, 264.) (7) Bantleon v. Smith, 2 Binney, 146, 153; Dougherty's Estate, 9 Watts & Sergeant, 189; see Gaskins n. Gaskins and others, 17 Sergeant & Rawle, 390. SELLECK V. FRENCH. 509 But where a personal action, as covenant or debt, is brought for rent agreed to be paid at a certain time, it stands like any other debt due at a time certain, and interest accrues after the time fixed for payment:^!) the limitations men- tioned in Ohermyer v. Nichols, 6 Binney, 159, being apparently no others than those which qualify the right to interest on all debts. In Virginia, however, without regard to this distinction, the principle established is, that interest is not due on rent as a matter of law ;(2) but that under circumstances it may be given by the jury. (3) In New York, it had been held in one case, that in covenant for rent arrear, payable in wheat, interest was not recoverable; (4) but afterwards it was decided that in covenant for rent payable in wheat on a cer- tain day, interest on the value of it on the day was to be allowed; (5) and the latter decision has been confirmed on error. (6) Interest is incident at law to judgments ;(7) (although the reverse has been held in South Carolina,(8) and apparently assumed in California;) (9) yet, inde- pendently of statutes, the only remedy by which it can be recovered is an action of debt on the judgment; scire facias, writ of execution against property, and commitment on execution, being remedies only for the amount of the judg- ment. In an action of debt, interest may be recovered from the time of the entry of the judgment, as damages for the detention; (10) even where it is the judgment of a justice of the peace of another state :(11) and the rule applies where the original judgment is for a cause of action that does not bear interest, as for unliquidated damages ;(12) or is for a penalty, and the judgment with the interest exceeds the penalty. (13) But at common law, on an execution on a judgment, interest cannot be levied, because the execution must pursue the judgment, and there is nothing on the record to authorize the collecting of interest; and this applies even where the judgment has been reduced by par- tial payments, and the amount which the plaintiff orders to be collected is less (1) Clark V. Barlow, 4 Johnson, 18.3; Van Rensselaer u. Jones, 2 Barbour, 644, 665; Denni- aon V. Lee & Wife, 6 Gill & Johnson, 383, 386; Obermyer ii. Nichols, 6 Binney, 159, 162 ; Buck V. Eisher, 4 Wharton, 516; Guthrie v. Stockton's Adm'r, 5 Harrington, 123; S. C, Id., 204 ; Honors v. Murray, 3 Dana, 31; Elkin & Perry v. Moore, 6 B. Monroe, 462. (2) Cooke V. Wise, and Newton v. Wilson, 3 Hening & Munford, 483 ; Skipwith v. Clinch, Bx'r, and others, 2 Call, 253. (3) Dow V. Adam's Administrators, 5 Munford, 21, 23 ; Mickie c Wood, 5 Randolph, 671 ; see Kyles v. Roberts's Ex'or, 6 Leigh, 495; see Mulliday v. Machir's Adm'r, 4 Grattan, 2, 9. (4) Ex'ors of Van Rensselaer !'. Adm'rs of Platner, 1 Johnson, 276. (5) Lush V. Druse, 4 Wendell, 313, 317. (6) Van Rensselaer's Executors v. Jewctt, 6 Denio, 135; S. C, on error, 2 Comstock, 135; see Philips et als. v. Williams, Ac, 6 Grattan, 259, 264. (7) Gwinn v. Whitaker, 1 Harris & Johnson, 754, 755. (8) Trenholm v. Bumpfield, 3 Richardson, 376. (9) Thompson v, Monrow, 2 California, 99. (10) Sayre v. Austin, 3 Wendell, 496; Williams, Administrator, v. American Bank and others, 4 Metcalf, 317, 322; Pishburne, Ex'or of Snipes v. Sanders, 1 Nott & M'Cord, 242; Norwood ■II. Manning, 2 Id., 395; Administrator of Pinckney v. Singleton, Ex'or, 2 Hill's So. Car., 343; Hodgdon v. Hodgdon, 2 New Hampshire, 169. (11) Mahurin ii. Bickford. 6 New Hampshire, 568, 572. (12) Klock V. Robinson, 22 Wendell, 157 ; Lord v. The Mayor, Ac., of New Tork, 3 Hill's N. Y., 427; Marshall v. Dudley, 4 J. J. Marshall, 244; Harrington v. Glenn, 1 Hill's So. Car. 79. (13) Smith V. Vanderhorst and Wife, 1 M'Cord, 328. 510 INTEEEST. than the face of the judgn)ent;(l) but a qualification of this exists in the case of a bond with a penalty, for here the cautionary judgment is for the whole penalty, which at law is the debt, to be discharged, according to the statute of 4 Anne, c. 16, by bringing into court all the principal money and interest due on the bond, together with costs. (2) As a consequence of the right to levy execution only for the judgment and not for the interest, a judgment is a lien on lands only for the principal amount, and not interest upon it. (3) But the right to include in an execution on a judgment, interest as well as principal, is now given by statute in most states, as in New York, Pennsylvania, South Carolina, Kentucky, &c., &c.(4) A commitment on execution, also, is, at common law, a remedy only for the amount of the judgment, and when that is satisfied, the person cannot be detained for the additional interest; (5) and yet, as was held in the latter case, in an action on the case against the sheriff for an escape, interest on the judgment may be recovered in damages. On a scire facias on a judgment, no interest can be recovered, for it merely revives the judgment for its original amount. (6) In Pennsylvania, however, under the statute of 1700, interest is an incident to all judgments ;(7) and a judgment in scire facias includes interest on the original judgment, and every such judg- ment carries interest; (8) and decrees in the Orphans' Court are judgments. (9) And even a judgment in scire facias against a garnishee in foreign attachment, gives interest on the judgment in the foreign attachment, although the first judgment included interest (10) In England, also, by St. 1 & 2 Vict. c. 110, s. 17, every judgment debt car- ries interest, at four per cent., from the time of entering up the judgment until it is satisfied, and the interest may be levied under a writ of execution on the judgment.(ll) In England, before the Statute 3 & 4 Wm. IV., c. 42, a distinction had been taken between instruments of a commercial nature, such as bills of exchange, and other contracts ; that, on the latter, interest is not due without an agree- ment for it express or implied, though on the former it is by the usage of trade; see Gordon v. Swan, 2 Campbell, 429, note; S. 0. 12 East, 419; (as to the evidence of an agreement, see Marshall v. Poole, 13 East, 98 ; Davis v. Smyth, 8 Meeson & Welsby, 399;) and upon this, a distinction between written and (1) Watson 1). Fuller, 6 Johnson, 283; Mason v. Sudam, 2 Johnson's Chancery, 172, 180. (2) Thomas v. Wilson, 3 M'Cord, 166. (3) De LaVergne v. Evertson, 1 Paige, 182; Mower v. Kip, 6 Id., 89, 91; but see M'Clung ■V. Beirne, 10 Leigh, 395, 400. (4) See Sayre v. Austin, 3 Wendell, 496; Berryhill ». Wells, 5 Binnoy, 56, 69 ; Thomas v. Wilson, 3 M'Cord, 166; Administrators of Kirk v. Executors of Richbourg, 2 Hill's So. Car., 352; Chamberlain v. Maitland A Co., 5 B. Monroe, 418, 449 ; Martin k. Kilbourne, 11 Ver- mont, 93; Ijams & Carr v. Rice, 17 Alabama, 404. (5) Allen v. Adams . Tyringhnm, 12 Pickering, 547, 549 ; Goff V. The Inhabitants of Behoboth, 2 Gushing, 476, 478 ; Doyle's Adm'rs v. St. James's Church, 7 Wendell, 178; Cloud v. Smith . Minott, 2 M'Cord, 125. (2) Barnard v. Bartholomew, 22 Pioliering, 291, 294; Amee v. Wilson, 22 Maine, 116, 120; Gray v. Van Amringe, 2 Watts & Sergeant, 128; Moore v. Patton, Donegan & Co., 2 Porter 451, 454. (3) Go£F«. The Inhabitants of Eehoboth, 2 Gushing, 476, 478. (4) Moore v. Patton, Donegan & Co. ; Man's Bx'ix v. Southwiok, Cannon and Warren, 2 Porter, 361, 376 ; M'Allister v. Reab, 4 Wendell, 484, 490 ; S. C. on error, 8 Id., 109, 112, 118; Knox et al. v. Jones, 2 Dallas, 193 ; Crawford et al. v. Willing et al., 4 Id., 286, 289 ; Ober- myer v. Nichols, 6 Binney, 169, 162; Raymond o. Isham, 8 Vermont, 268, 263; Phenix v. Prindle, Kirby, 207. (6) Williams v. Craig, 1 Dallas, 313, 316 ; Wills v. Brown, Pennington, 548. (6) Bokert v. Wilson, 12 Sergeant & Rawle, 393, 398. (7) Amee v. Wilson, 22 Maine, 116, 120 ; Scarson ti. Heyward & Go,, 1 Spears, 249. SELLECK V. FRENCH. 515 affect persona from the country dealing with city merchants (1) In South Carolina, it is the practice not to allow interest on an account for goods sold or work done, although a time be fixed for payment, unless there be an agreement, express or implied, to pay interest;(2) but this proceeds on the principle before adverted to, peculiar to that court among American courts, that interest is inci- dent only to written contracts. (3) In open mutual accounts, between merchant and merchant, except on money advances, no interest is allowed ; as is remarked in the principal case, and in Newell V. Griswold, 6 Johnson, 45; until a balance is struck, and notice of it given.(4) As to the allowance of interest, in accounts between partners ; see the vari- ous cases cited below (5) A general rule on the subject is, that if one partner, without the knowledge or consent of the others, withdraws a part of the part- nership funds from the legitimate business of the firm, and fraudulently misap- plies it to his own use, interest shall be charged against him from the time that he abstracted the money ; but if the money was withdrawn with the consent of the other partners, interest shall not be charged, except from the time that an account has been demanded and refused, the party being in default only from that time. (6) In trover, and case and trespass when brought for the recovery of property converted or destroyed, the legal measure of damages is the value of the chat- tel, with interest from the time of the conversion or trespass. (7) In an action sounding purely in tort, as in case for fraud, or trespass for assault and battery, interest ought not to be given ;(8) but if it be given in the verdict, it may be stricken out as surplusage, and a new trial need not be granted ;(9) in Mogy v. Zanesville Canal & Manufacturing Co., 5 Ohio, 410, 424, however, it was held by a majority of the court, that in an action of tort for fraudulent acts, causing a destruction of property, interest, eo nomine, might be given in the damages. Where an agent or trustee, by his negligence or misfeasance with regard to property in his hands, but without a conversion of it to his own use, makes himself liable for its value, he is liable without interest from the time when he became chargeable ; but if he has made a private advantage to himself out of (1) Koons V. Miller, 3 Watts & Sergeant, 271. (2) Knight v. Mitoliell, Constitutional R., 668. (3) See Perrand o. Bouohell, Harper's Law, 83. (4) Kane v. Smith, 12 Johnson, 156; Crawford et al. v. Willing et al., 4 Dallas, 286, 289 ; Raymond a. Isham, 8 Vermont, 258, 263 ; see Consequa v. Fanning, 3 Johnson's Chancery, 587, 601 ; see Reid v. Rensselaer Glass Factory, 3 Cowen, 393; S. C. on error, Renss. Glass Factory «. Reid, 5 Id., 689. (5) Stoughton D. Lynch, 1 Johnson's Chancery, 467; Beacham v. Eckford's Executors, 2 Sandford, 117, 126; Miller v. Lord, 11 Pickering, 11, 26; Winsor «. Savage, 9 Metoalf, 347, 352; HoUister v. Barkley, 11 New Hampshire, 502, 511; Honore v. Colmesnil, 7 Dana, 199, 202 ; Hodges et al. v. Parker et al., 17 Vermont, 242 ; Reynolds et al. u. The Heirs and Adm'rs of Mardis, 17 Alabama, 32. (6) Solomon ». Solomon, Ex'x, 2 Kelly, 18. (7) Bealso. Guernsey, 8 Johnson, 446, 453; Bissell f. Hopkins, 4 Cowen. 63 ; Hyde «. Stone, 7 Wendell, 354, 358 ; Taylor «. Knox's Ex'rs, 1 Dana, 391, 400 ; Kennedy v. Whitwell et al, 4 Pickering, 466; Johnson v. Sumner, 1 Metcalf, 172, 179. (8) Ormsby k Castleman «. Johnson, 1 B. Monroe, 80, 82. (9) Brugb u. Shanks, 6 Leigh, 698, 606. 516 INTEREST. the property, he will be liable to interest. (1) But if it was his duty to make money and pay it over immediately, and he becomes answerable for the money, he is liable also for interest upon it. On this ground, in an action on the case against a sheriff for negligence in collecting an execution, or for an escape, but not in debt for an escape, the measure of damages includes interest on the debt. (2) In England, by St. 3 and 4 Wm. IV., c. 42, § 29, the jury may, if they shall think fit, give damages in the nature of interest, over and above the value of the goods at the time of conversion or seizure, in all actions of trover or tres- pass de bonis asportatis, and over and above the money recoverable in all ac- tions on policies of assurance. A specific legacy carries interest from the death of the testator ; a general legacy carries interest only from the time it is payable, unless another intention appear in the will. (3) [Where, however, a general legacy is made payable at a certain time, it bears interest from that time, even though there should be no hand to receive it for many years afterwards.] (4) Where a general legacy is given to any one except a child, and no time is fixed for its payment, or it is direcied to be paid as soon as convenient or practicable, it is always considered as payable one year alter the testator's death, and carries interest from that time, unless otherwise specially directed ; and this rule of construction does not yield to any impossibility of getting the fund in so as to make payment by the end of the year; (5) but a legacy to a child, not otherwise provided for in the will, though it be not payable till twenty-one, or other future time or event, carries interest from the death of the testator; (6) but the rule in favour of a child does not extend to a grandchild ;(7) nor to the widow, or any other per- son but a lawful child ; (8) and it does not apply in the case of a child, if other provision be made for it in the will. (9) As to the chancery jurisdiction of de- creeing maintenance to infant legatees, including grandchildren; see Corbin v. Wilson, 2 Ashmead, 178 ; Newport v. Cook, Id. 332 ; Morris v. Fisher, Id. 411 ; Blackhurn v. Hawkins, 1 English, 51, 57. Seibert's Appeal, 19 Penna. State, 54. In the case of Williamson v. Williamson, page 305, however, the rule of allowing interest from the testator's death was supposed to extend to (1) Bawes v. Winship et al., 5 Pickering, 97, note; Thompson v. Stewart, 3 Connecticut, 172, 184; Rootes v. Stone, 2 Leigh, 650 ; see Ricketson et al. v. Wright et al., 3 Sumner, 336; and see Short v. Skipwith, 1 Brockenbrough, 104. (2) Bowen v. Huntington, 3 Connecticut, 42.3, 426 ; Thomas v. Weed, 14 Johnson, 255; but see Gibson v. Governor, &c., 11 Leigh, 600 ; and Clifford et al. c. Cabiness, 1 Dana, 384. (3) Jones v. Ward, 10 Yerger, 161, 168; Stephenson v. Axson and Mitchell, 1 Bailey's Equity, 274, 278 ; Huston's Appeal, 9 Watts, 473, 475, 477 ; Graybill and Butts v. Warren, 4 Georgia, 528; Beat and Wife v. Crafton, 5 Id,, 301, 311. (4) Lyons «. Magagnos, Adm'r, 7 Grattan, 377. (5) Martin v. Martin, 6 AVatts, 67; Hoagland v. Executors of Schenck, 1 Harrison, 370,375; Shobe V. Carr, 3 Munford, 10, 18; Ingraham v, Postell's Ex'rs, 1 M'Cord's Chancery, 94, 98; Gillon V. TurnbuU, Id., 148, 152 ; Huston's Appeal; see Hallett &. Walker, Ex'rs, v. Allen, Ac, 13 Alabama, 555. (6) Miles V. Wister, 5 Binney, 477, 479 ; MagofBn, Adm'r, v. Patton and others, 4 Bawle, 113, 119; Allen v. Crosland, 2 Richardson's Equity, 68. (7) Lupton ti. Lupton, 2 Johnson's Chancery, 614, 628; Huston's AppeaL (8) Gill's Appeal, 2 Barr, 221. (9) Williamson v. Williamson, 6 Paige, 299, 300. SELLECK V. FRENCH. 517 the case of a legacy to the widow in lieu of dower : but this extension is de- nied in Church at Acquahanonh v. Ex'rs of AcJcermaii et at, ij'axton, 40, 48, and Spangler's Estate, 9 Watts & Sergeant, 135, 141. It has been held in some cases, that if the fund out of which the legacy is made payable, be pro- ductive, as land yielding rents or profits, or a bond bearing interest, the legacy will carry interest from the testator's death ; Ingraham v. Postell's Ex'ors, 1 M'Oord's Ch. 94, 99 ; this may be so, where the legacy is expressly made to issue out of such a fund, because such a legacy may, in some cases, be specific, or in the nature of a specific legacy : but it is not so where the legacy is gen- eral, and the fund for its payment, merely, is productive. (1) In Williamsons. Williamson, it was decided, that on a bequest to any one of a life estate in a residuary fund (or, of the use of a residue for lif^), where no time is prescribed in the will for the commencement of the interest, or the enjoyment of the use or income of such residue, the legatee is entitled to the interest or income of the clear residue, as afterwards ascertained, to be computed from the time of the death of the testator ; but in Eyre v. Golding, 5 Binney, 472, it was held that there is a diiFerence between a legacy to one of a sum of money for term of life, and a bequest of a sum to be paid annually for life : that in the former case, the legacy not being payable till the end of a year from the testator's death, carries no interest for that year, but that in the latter, the first payment of the annuity must be made at the end of the first year, or the intention of the testator is not complied with : the time must be counted immediately from his death, or the legatee will not receive the annuity annually during life. And this is confirmed in Hilyard's Estate, 5 Watts & Sergeant, 30, and decided to be applicable to a beqUest of " the interest and income," for life, of a fur.d directed to be put out at interest ; a contrary rule prevailing where there is a bequest of an income or annuity, from that which applies to a bequest of the corpus, and the legatee of interest for life being allowed it from the death of the testator : and to the same effect is Spangler's Estate, 2 Id. 135,141. If the bequest be of a certain annual sum, that sum will be payable for the year succeeding the testator's death ; but if of the interest on a fund, only the interest actually made, will be given ; see Spangler's Estate. In Williamson v. Wil- liamson, the bequest appears to have been of the use of the residue for life ; and it seems very doubtful, whether on such language the decision was correct. See the whole subject of interest on legacies, discussed in Bitzer's Ex'or v. Hahn & Wife, 14 Sergeant and Rawle, 232. The general rule is that interest is not payable on the arrears of an annuity bequeathed by will, unless under special circumstances; (2) but under special circumstances it may, as when the annuity is in lieu of dower. (3) In Penn- sylvania it has been decided that an annuity to a daughter or widow of the testator, charged on land, and an agreement to pay an annuity or annual sum to the widow in lieu of her dower for her maintenance and support, carry inte- (1) Church, lifce., v. Ex'rs of Ackerman et al., Saxton, 40; and Hilyard's Estate, 5 Watte &, Sergeant, 30, 31. (2) Isenhart v. Brown, 2 Edwards, 341, 347; AdamB's Adm'r v. Adams's Adm'r, 10 Leigh, 52r. (3) Beoson's Adm'rs v. Beeson's Ex'or, 1 Harrington, 394, 399, note; Houston v. Jamison's Adm'r, 4 Id., 330 ; See Philips et als. i/. Williams, Ac., 5 Grattan, 269, 264. 518 INTEREST. rest;(l) unless there are special circumstances defeating the title to it.(2) In South Carolina, interest was decided to accrue on the arrears of an annuity, from the time that the money become due. (3) On taxes, interest is, in general, not chargeable ; (4) at least not before demand; [nor on dividends of incorporations ; (5) nor on orders drawn on county officers, payable out of moneys arising from taxes ;" these not being bills of exchange nor contracts of any kind. (6) And indeed the contracts of counties, generally, whose revenue is raised by taxation and fixed, and which appropriate fixed sums for each purpose stand in a position somewhat different, perhaps, from those of persons in general; and do not bear interest except in special cases. ](7) IV. In cases of demands arising from the payment or receipt of money, the liability for interest rests upon two distinct grounds'; the wrongful detention of money that ought to be paid ; and a use or benefit derived from the money of another. Cases of money lent, and money paid, laid out, and expended, depend chiefly on the latter : cases of money had and received, on both. In. this country, the principle that the use of money belonging to another, though lawfully in the hands of the person using it, makes him chargeable with inte- rest, is as well settled as the principle that raises a liability to interest from the wrengful detention of money due. In Lewis v. Bradford, 8 Alabama, 632, 634, the court recognized " the general proposition, that where one re- ceives interest from the money of another, or derives an advantage from its use, he shall pay interest to the owner." In Bliller v. Bank of Orleans, 5 Wharton, 503, 505, Gibson, C. J., said, that "it is a rule, with scarce an exception, that he who has derived a benefit from the use of another's money shall pay for it;" and in Sims v. Vi^illing and others, 8 Sergeant & Rawle, 103," 110, the same judge remarked, that interest should be considered as demanda- ble in every case where one man has used, or been benefited by, the application of the money of another. On money lent, interest, in this country, is always recoverable ; because the defendant has had a use from the plaintiff's money. (8) For the same reason, on money paid, for account, or to the use or benefit, or at the request of another, interest is allowed from the time of payment, and not merely from the time of notice or demand. (9) Money advanced by a factor or agent, bears (1) Addams v. Heffernan, 9 Watts, 630, 643; Stewart i>. Martin, 2 Id., 200; Knettle v. Grouse, 6 Id., 123 ; Keed v. Reed, 1 Watts & Sergeant, 236, 239 ; Smyser v. Smyser, 3 Watts 4 Sergeant, 437, 438. (2) Gaskins v. Gaskins and others, 17 Sergeant &> Kawle, 390 ; see Woodward «. Woodward, 2 Richardson's Equity, 23. (3) Stephenson v. Axon and Mitchell, 1 Bailey's Equity, 274, 278. (4) Danforth v. Williams, Ex'r, 9 Massachusetts, 324. (5) The State v. Bait, and Ohio R. R., 6 Gill, 364. (fi) Dyer v. Covington Township, 19 Penna. State, 200. (7) See The County of Pike v. Hosford, 11 Illinois, 171. (8) Rapelie et al. •>. Emory, 1 Dallas, 349; Lessee of Dilworth v. Sinderling, 1 Binney, 488, 494. (9) Weeks v. Hasty, 13 Massachusetts, 218 ; Gihbs v. Bryant, 1 Pickering, 118, 121 ; Ilsley V. Jewett, 2Metcalf, 168, 175; Milne r. Rempublicam, 3 Yeates, 102; Sims ji. Willing and others, 8 Sergeant A Rawle, 103, 109 ; Hastie & Patrick v. De Peyster and Charlton, 3 Caines, 190, 195, 197 ; Miles, Ac, v. Bacon, 4 J. J. Marshall, 457, 463 ; Breckinridge v. Taylor, 5 Dana, SELLECK V. FEENCH. 519 interest from the time it is paid.(l) Money lent, and money paid, carry inte- rest, when they form matter of account, as well as when they are detached transactions; Reid v. Rensselaer Glass Factory, 3 Gowen, 393; S. C. on error, 5 Id. 589, whore this subject is extensively discussed. It is a settled rule, however, that advancements by a father to his children, do not bear inte- rest ;(2) except from the time when the property is divisible among them. (3) ]n England, "the general rule is, that interest is not due by law for money lent, unless from the usage of trade or the dealings between the parties, a eon- tract for interest is to be implied ;" per Abbott, 0. J., in Shaw v. Picton, 4 Barnewall & Cresswell, 715, 723 ; Page v Newman, 9 Id. 378 ; and the rule is the same in. regard to money paid at the request of another; Carr v. Ed- wards, 3 Starkie, 132. According to the English practice, in an action for money had and received, nothing but the net sum, without interest, can be recovered ;(4) but in Pease v. Barber, 8 Caines, 266, where the naked question was presented, whether, in this action, interest could be recovered, it was decided that it can, and that whether it will be allowed or not, must depend on the circumstances of the case : there may be cases, it was said, where the defendant ought to refund the principal merely, and others in which he ought, ex aequo et bono, to refund the principal with interest, and each case will depend upon the justice and equity arising out of its peculiar circumstances : and this principle has ever since been followed in American courts. (5) The right to interest depends upon whether the defendant used the money, or was in default in not paying it over. A stakeholder in whose hands money remains ready to be paid over, a trustee by the mere fact of having the cestui que trust's money in his hands, and a mere receiver, bailee, or depositary of money, without default, and where there has been no use of the money and no benefit derived from it, is not liable for inte- rest. (6) But whenever one has used the money of another, [except as in the case of a bank, and where the bank has some money ready to answer the own- er's call,] or has had money in his hands which he ought to pay over, he is chargeable with interest. The question turns on the fault of the party. See Dodge v. Perkins, 9 Pickering, 369, 386, where the subject is examined at length. [And if Jbraes v. Mallory etal., 22 Connecticut 892, ox Harrington n. Hoggart, 1 Barn. & Adolp. 577, (20 E. C. L., 448,) meant to lay down princi- ples in regard to stakeholders essentially different from this, they are not law.] 110, 114; Goodloe v. Clay, 6 B. Monroe, 236, 238; Thompson v. Stevens, 2 Nott & M'Cord, 494, 497 ; Buckmaster v. Grundy et al., 3 fiilman, 626, 634; Aikinu. Peay, 5 Strobhart, 15, 18. (1) Cheeseborough & Campbell d. Hunter, 1 Hill's So. Car., 400; Smetz v. Kennedy, Riley, 218, 221 ; Taylor v. Knox's Ex'rs, 1 Dana, 391, 399 ; S. C, 5 Id., 466. (2) Osgood V. Breed's Heirs, 1? Massachusetts, 366; Hall et ux. t;. Davis et al., 3 Pickering, 460 ; Green v. Howell, 6 Watts & Sergeant, 203, 208. (3) Oakey, ex parte, 1 Bradford's Surrogate R., 281 ; see Tundt's Appeal, 1 Harris, 575, 581. (4) Walker v. Constable, 1 Bosanquet & Puller, 306, 307; Tappenden and others v. Randall, 2 Id., 467, 472; Depeke v. Munn, 3 Carrington A Payne, 112; Fruhling d. Sohroeder, 2 Bing- ham's N. C, 77. (5) Marvin r. McRae, 1 Cheves's Law, 61 ; Porter v. Nash, 1 Alabama, 452, 456, Ac. (6) Wood V. Robbins, 11 Massachusetts, 504, 606; Johnson v. Eicke, 7 Halsted, 316, 319; Knight 11. Reese, 2 Dallas, 182; Taylor v. Knox's Ex'rs, 1 Dana, 391, 398; S. C, 6 Id., 466' Bell's Adm'rs v. Logan, 7 J. J. Marshall, 693, 594; Johnson v. Haggin, 6 Id., 581 ; Vance's Adm'r v. Vance's Distributees, 5 Monroe, 521, 525. 520 INTEREST. Wherever the plaintiflF's money has come to the hands of the defendant, wrongfully, he is liable for interest from the time that it came to his hands. Accordingly, in an action for money had and received, interest is to be allowed from the receipt of the money where it has been obtained from the plaintiff by extortion, or by fraud and imposition ;(1) or, being due to the plaintiff by a third person is wrongfully received by the defendant, and illegally withheld; (2) oris the proceeds of the plaintiff's property tortiously sold by the defendant ;(3) or has been received by the defendant in payment of a debt incurred at an ille- gal game from a person who being a bailee of the plaintiff's money, fraudulently applied it to this purpose; (4) because, as is observed in the last case, where one has received the money of another, and has not a right conscientiously to retain it, the law implies a promise that he will pay it over. In like manner, where money, coming lawfully to the defendant's hands, is wrongfully retained by him after he ought to pay it over, he is liable for inte- rest from the time that he ought to have paid it over. It is a settled rule, said Radcliflf, J., in Lynch v. De Viar, 3 Johnson's Cases, 303, 310, that money received to the use of another, and improperly retained, always carries interest. Wherever money due, or belonging to one man, is received by another, and held unlawfully, or against the other's consent, or converted to the receiver's use, interest is chargeable. (5) Thus, a public officer retaining money in his hands, after it ought to be paid over by him, is chargeable with interest from such time as it is wrongfully detained (6) On a sale of chattels, it is the duty of the sheriff to bring the money into court on the return day of the execution ; if he neither pays it into court, nor to the execution creditors, but retains the money in his hands, he is liable for interest ;(7) and in an action on the sheriff's recognisance by a lien creditor, to recover money that ought to have been paid to him, but was paid to another, interest is recoverable; (8) but a sheriff is not liable for interest where he has not had the money in his hands, or the money is detained in court by a contest between the creditors. (9) In like manner, where one having a control of another's money, unlawfully diverts it to his own use, he is liable to interest; in Commonwealth v C'revor,3 Binney, 121, where money made by the sheriff, was, by agreement of the litigant parties, deposited in bank, and the sheriff in violation of the agreement, took it out of the bank, it was held that the sheriff was liable for interest from the time that he took the money out. There are many oases of this kind, which cannot be referred to a particular (1) Goddard v. Bulows, 1 Nott & M'Cord, 45; Wood v. Robbins, 11 Massachusetts, 504; Winslow V. Hathaway et al., 1 Pickering, 211. (2) Greenly r. Hopkins, 10 Vfendell, 96. (.3) Chauncey et al. v. Yeaton, 1 New Hampshire, 151, 157. (4) Mason i: Waite, 17 Massachusetts, 560. (5) Simpson et al. o. Feltz, 1 M'Cord's Chancery, 21.3, 220; Black v. Goodman A Miller, 1 Bailey, 201, 202; Rapelie et al. v. Emory, 1 Dallas, 349; Shipman v. Miller, Ac, 2 Root, 405. (6) The People v. Gasherie, 9 Johnson, 71 ; Slingerland v. Swart, 13 Id., 266 ; Lawrence i'. Murray, 3 Paige, 400 j The Board of Justices v. Fennlmore, Coxe, 242 ; Hudson v. Tenney et B., 6 New Hampshire, 467. (7) Crane v. Dygert, 4 Wendell, 675 ; see McDowell v. Jefferson, 3 Harrington, 25. (8) Reed v. Reed, 1 Watts & Sergeant, 235, 239. (9) Stewarts. Stooker, 13 Sergeant & Watts, 199,205 ; and see Beetim v. Buchanan, i Watts, J9; Hantz v. The York Bank, 21 Penna. State, 291. SELLECK V. FEENCH. 521 class, but must be decided upon an application, according to the circumstances, of the general principles on which a liability to interest depends, viz., the wrongful witholding of a debt due, and the use of money belonging to another. Thus in Delaware Insurance Co. v. Delaunie, 3 Binney, 295, 301, the defend- ant had been paid money, of which a part was received for account of the plain- tilF, but the amount due to the plaintiff depended on a disputed account ; " Interest in actions like the present," said Tilghman, C. J , " is not a matter of course, but depends on the conduct of the parties. If the defendant has delayed payment improperly, he is chargeable with interest. On the other hand, the plaintiff may forfeit his claim to interest, by unreasonable behaviour. If the defendant offers to pay as much as in justice he ought, and the plaintiff refuses to receive it, and brings an action, it would be wrong that the defendant should pay full interest after being driven to the expense of defending himself against an unjust suit. But in the present case, the fault does not seem to lie altogether on either side. The plaintiff insisted on too much, and the defendant offered too little. There was a necessity, therefore, for a suit. That being the case, and there being no reason to suppose that the defendant has not made use of the money, we think he should be chargeable with interest." In an action to recover back money paid by mistake, or on a consideration which has failed, the question of interest depends, in like manner, upon the fault of the defendant. Where money was paid on a contract for the sale of land, which the defendant refused to perform, it was decided that the money should be recovered with interest. (1) But where money is paid and received by common mistake, and no fraud can be imputed to either party, interest will not be allowed except from the time when the mistake was explained, and a demand made. (2) Accordingly, where lands were sold by a testator, and the purchase money was paid to his executors, and the will that appointed them was afterwards set aside, and suit brought to recover back the money, the court held that interest should not be allowed from the time of payment, but they said that if there had appeared on the part of the executors, any thing like a suppressio veri or iuggeslio falsi, the decision might have been different (3) And where an administrator, supposing that the estate was solvent, paid a debt in full, and upon the estate afterwards proving insolvent, brought an action to recover back the excess beyond the rateable part to which the creditor was enti- tled, he was allowed to recover the excess with interest only from the time of demand. (4) Upon a similar distinction, it has been held that, in an action to recover back taxes paid, under an illegal assessment, the party is entitled to interest on the amount paid, from the time of payment, if the taxes were paid under protest or denial of right ; but that if there was no protest, or denial of liability to pay them, at the time of paying, interest should be given only from the time of demanding repayment, or from the date of the writ. (5) In like manner, in an action to recover back usury paid, it has been held, that interest (1) Gillett V. Maynard, 5 Johnson, 85, 88. (2) Simons t>. Walter, 1 M'Cord, 97; King and anotherr. Diehl and another, 9 Sergeant & Kawlo, 409, 422, explaining Brown v. Campbell, 1 Id., 176. (3) Jacobs 1). Adams, 1 Dallas, 62. (4) Walker «. Bradley, 3 Pickering, 261; see Stevens, Administrator, v. Goodell, 3 Metcalf, 34, 39. (5) Boston and Sandwich Glass Co, v. City .of Boston, 4 Metcalf, 181, 190. 522 INTEREST. is due only from the time that the party has reclaimed the money by demand or suit brought ; because the money was paid to be used by the defendant as his own money, and not as the plaintiff's money, and the plaintiff had a perfect right to permit him to do so, and the defendant was not in default for not refunding. (1) So where an account in a bank was overdrawn by accident, and there was no wrong in obtaining the money and no default in retaining it, inte- rest is not chargeable. (2) An ordinary factor or receiving agent, receiving money for his principal, and bound to be ready to pay on order or demand, is not liable for interest, before a demand made, unless he uses the money, or has received special instructions to remit as fast as the money is received, or is in default for not rendering an account. (3) If he has engaged to account at certain times, interest runs from such times, if he does not aocount;(4) and without any such agreement, it is the duty of an agent to keep his principal informed of the state of the agency, and to account with him on demand, or in a reasonable time without any demand, and a refusal to account, or a neglect to render an account for an un- reasonable time, renders a demand of payment unnecessary, and interest is chargeable from the time that the agent is in default ;(5) and the same rule applies [especially to a public revenue oiEcer who.«:e duty it is made by law " to account at fised times, or as soon as he receives money," his duty of itself being equivalent to demand. (6) It applies also] to an attorney who has col- lected money for a client ; he is liable to interest from the time the money should have been paid, which is ordinarily from the time of demand, but will be from the receipt of the money if the attorney neglects to give notice of the collection, and converts the money to his own use, or otherwi.se applies it ille- gally.(7) In Anderson and others v. The State of Georgia, 2 Id. 370, 375, a collecting agent was decided to be liable for interest from the time that he ought to have paid over.(8) If an agent have directions to apply to particular objects, money coming into his hands, and does not make such application, he is bound to pay interest. (9) [Where, however, an agent, bailee, stockholder, or banker has money in his hands which he is bound to produce and pay over at a moment's notice, he will not, in general, as has been already intimated (ante, p. 519), be liable for interest; and even if he has made it by using the money in question, unless the circumstances are such as to render the use a violation of confidence or breach of trust.] (10) It has been stated, before, that a depositary, or mere bailee, of money is not, (1) Wood V. Gray's Ex'rs, 5 B. Monroe, 92, 93; Sharp v. Pike's Adm'r, Id., 165, 159. . (2) Hubbard and others v. Charlestown Branch Railroad Co., 11 Metcalf, 124, 128. (3) Williams v. Storrs, 6 Johnson's Chancery, 353, 358 ; Crane v. Dygert, 4 "Wendell, 675, 679 ; Lever v. Lever, 2 Hill's Chancery, 158, 164 ; Rowland v. Martindale, 1 Bailey's Eq., 226. (4) Wardlaw et al. u. Gray, &o., Dudley's Equity, 85, 113. (5) Dodge J;. Perkins, 9 Pickering, 369, 387,393; Ellery v. Cunningham and another, 1 Metcalf, 112, 116; Bedell v. Janney et al., 4 Gilman, 194, 202. (6) Commonwealth v. Porter, overruling a previous decision of the same ease, 7 id., 14, 19 21 Penna. State, 385. . (7) Nisbet v. Lawson, 1 Kelly, 275, 287. (8) See Boyd i'. Gilchrist, 15 Alabama, 849, 854. (9) Harrison et al. v. Long, 4 Desaussure, 111, 113; see Short u. Skipwith, 1 Brocken- brough, 104. (10) Harrington v. Hoggart, 1 B. & A., 577; Jones v. Mallory, 22 Connecticut, 386. SELLECK V. FEENCH. 523 by the fact of having money in his hands, liable for interest. The liability of a trustee to interest, depends upon the money being held or appropriated, according to, or in violation of, the purposes of the trust. (1) The principle is, that a trustee shall not make any advantage to himself out of the trust fund ; and that all profits which he has made, or might, and ought to, have made, belong to the cestui que trust. (2) If there is a trust to invest, or a trust to receive and pay over, and the trust is not performed, interest is always charged against the trustee ; and the general rule is, to charge for a mere neglect, sim- ple interest on the amount which the trustee has neglected to invest or pay over : but for intentional violation of duty and a corrupt use of the money in the business of the trustee, to charge compound interest, or at least to make rests, according to the circumstances of the case, in the computation of interest, that being' the measure in Chancery of profits not disclosed (3) Where there are annual receipts and annual disbursements, see the rules adopted, as to the computation of interest, and the statement of the account, in the numerous cases cited below. (4) A guardian is a trustee to invest, or to pay over, as the case may be ; and is subject to the rule above stated, as to interest, simple or compound. (5) [Six months in Pennsylvania, where guardians and trustees are held to strictly legal investments, being ordinarily allowed, as I's said in Wor- rell's Appeal, 23 Penna. State, 45. This time, however, is too large. Five months was held by the Supreme Court of the United States in Barney v. Saunders, 16 Howard, 546, an unreasonable time to keep money on deposit waiting investment, but three months being allowed. In a large city where legal investments can be had almost daily, two months might be long enough.] But there is a difference between the case of a guardian and an administrator, during the period lawfully allowed to him for the settlement of the estate; it being the duty of the latter to hold the money ready to be paid according to the demands upon the estate, and it being neither his duty nor right to (1) See Eapalje v. Norsworthy's Ex'ors, 1 Sandford, 400, 404. (2) See McNnir v. Ragland et al., 1 Devereux's Equity, 517, 524; Sparhawk and others v. Adm'r of BucU and otliers, 9 Vermont, 42, 82. (3) SchiefFelin v. Stewart, I.Johnson's Chancery, 620; Evertson tj. Tappen, 5 Id., 498, 517; Ackerman v. Emott, 4 Barbour's Supremo Court, 627, 649: In re Thorp, Daveis, 290; Har- land's Accounts, 5 Rawle, 32.3 ; Dyott's Estate, 2 Watt & Sergeant, 557, 565 ; Eobbins v. Hay- ward et al., 1 Pickering, 528, note; Jennison v. Hapgood, 10 Id., 79, 104; Boynton v. Dyer, 18 Id., 2, 7 ; Wright v. Wright, 2 M'Cord's Chancery, 185, 200 ; Myers v. Myers, Id., 214, 266 ; Garrett, Ex'or, Ac, v. Carr et ux., &o., 1 Robinson's Virginia, 197, 213 ; Moore's Ex'rs v. Beauchamp, Ac, 5 Dana, 70, 78 ; Montjoy and Wife v. Lashbrook et al., 2 B. Monroe, 261 ; Clemens v. Caldwell, 7 Id., 171, 176 ; Bryant v. Craig, 12 Alabama, 355 ; Fall i>. Simmons and others, 6 Georgia, 265, 271 ; Peyton et al. v. Smith, 2 Devereux & Battle's Equity. 326, 339 ; Torbet's Heirs v. McReynolds et al., 4 Humphreys, 215 ; Voorhees d. Stoothoff, 6 Halsted, 145; Barney v. Saunders et al., 16 Howard, 642; Rowan v. Kirkpatrio, 14 Illinois, 10. (4) De Peyster v. Clarkson, 2 Wendell, 78; Vanderheyden v. Vanderheyden. 2 Paige, 287 ; Boynton v. Dyer, 18 Pickering, 2; State i>. Layton et al., 3 Harrington, 469, 479 ; Grnnberry's Executor v. Granberry, 1 Washington, 246; Burwell's Ex'ors v. Anderson, Adm'r, Ac., 3 Leigh, 348, 359: Jackson's Heirs v. Jackson's Adm'r, 1 Grattan, 144; Voorheea v. StoothofF, 6 Hal- sted, 145 ; Davis' Adm'r v. Wright, Adm'r, 2 Hill's So. Car., 560 ; Massey v. Massey and others, 2 Hill's Chancery, 492, 497; Brown v. Vinyard, 1 Bailey's Equity, 460, 462; Schnell v. Schro- der, Id., 335, 342; Barney v. Saunders, 16 Howard, 542. (5) Ryan v. Blount et al., 1 Devereux's Equity, 382; Spack i;. Long, 1 Iredell's Equity, 426; Hughes, Ac, v. Smith, 2 Dana, 251. 524 INTEREST. invest. (1) The general rule now established is, that administrators, or execu- tors in the character of administrators, are not chargeable with interest, except where they have received interest, or used the money, or retained it unreason- ably after they ought to pay it out to claimants, or to account to the court. ('2) [However, in Lyons v. Maggnor, 7 Grattan, 377, where a legacy was directed to be paid within one year after the testator's death, and there was no hand to receive it for thirteen years, the executor was charged with interest; the court saying that it was his duty to have invested the money in an interest bearing fund, or to have brought it into court to be so invested But in that case the executor had probably used the funds.] In the application of this rule, the practice appears to be, not to hold them prima facie chargeable with interest, during the time that the law allows them for getting in the estate and settling their accounts, which is generally one year after the testator's death ;(3) but they will still be charged, if it be proved that they have received interest or have used the money, during that time, those facts rendering every depositary of money liable for interest.(4) After that period, the administrator is liable prima facie for all money coming to his hands after a reasonable time, which is generally six months, or at least on the annual balance in his hands; (5) and can discharge himself only by showing that he appropriated it duly to the purposes of the estate ; or, if he retained the money, that he retained it idle in his hands, according to his duty, and bona fide, to await the event of suits brought, or likely to be brought, against the estate ;(6) or can show as against a distributee or legatee, that no demand was made and refunding bond tendered, (where that is required before suit brought to give a right of action) and in case of a minor, no guardian appointed ; and also that he has not used the money ;(7) and if any of these can be shown, he is not liable. In short, the liability of administrators and executors depends upon their performing or neglecting their duty, under the circumstances of the case. (8) They are liable (1) Carrol, Ac, v. Connet, 2 J. J. Marshall, 195, 202; Karr'a Adm'r v. Karr, 6 Dana, 3, 5; Boynton v. Dyer, 18 Pickering, 2, 7; Knight v. Loomis, 30 Maine, 204, 210. (2) "Wyman v, Hubbard et al., 13 Massachusetts, 232 ; Stearns et al. v. Brown et ux., 1" Pick- ering, 530; Boynton v. Dyer, 18 Id., 2, 7; Williams, Administrator, v. American Bank and others, 4 Metcalf, 317, 324; The State v. Mayhew, 4 Halsted, 70, 77; Voorhees v. Stoothoff, 6 Id., 145; Lake, Adm'r, v. Park, Ex'r, 4 Harrison, 109; Darrel v, Eden and Wife, 3 Desaus- sure, 241 ; Turney v. Williams, 7 Yerger, 173, 213. (3) See Fox v. Wiloocks, 1 Binney, 194. (4) Vomer's Estate, 6 Watts, 250; see Findley v. Smith, 7 Sergeant & Rawle, 264, 26?; Commonwealth v. Mateer and others, 16 Id., 416, 421; Barney v. Saunders, 16 Howard,. 543; Docker v. Somes, 2 My. & Keene, 655. (5) Merrick's Estate, 1 Ashmead, 305 ; see Boynton v. Dyer, 18 Pickering, 2, 8. (6) Lamb v. Lamb, 11 Pickering, 371, 375; Wilson v. Wilson, 3 Gill & Johnson, 20, 24; Pace V. Burton, 1 M'Cord's Chancery, 247; Lafontu. Ricard, 1 Bailey's Equity, 487; Arnett ti. Linney, 1 Devereux's Equity, 369; Grattan v. Appleton et al., 3 Story, 755,766; Burtis v. Dodge, 1 Barbour's Chancery, 78, 90 ; Hasler v. Hasler, 1 Bradford's Surrogate, R. 249, 262. (7) Patterson v. Niohol, 6 Watts, 379, 382 ; Handy v. The State, 7 Harris &. Johnson, 4.S, 46 ; Thompson, Bx'or, v. Sanders, . Hammond, Id., 645 note Bordley v. Eden, 3 Harris & M'Henry, 167 ; but see Paul et ux. v. Christie, 4 Id., 161. (3) M'Call V. Turner, 1 Call, 133; Osborne v. Mifflin, cited in 2 Dallas, 102. (4) Conn et al. v. Penn et al., Peters, C. C, 497, 524; see also Hawkins's Ex'ors v. Minor, Ac, 5 Call, 118. (5) Sohaeffer's Estate, 9 Sergeant & Rawle, 263. (6) Raymond and others i. Bearnard, 12 Johnson, 274, 276; Cockrill v. Kirkpatrick, 9 Mis- souri, 697, 704. (7) Shobe v. Carr, 3 Munford, 10. (8) Dent v. Dunn, 3 Campbell, 296; Suffolk Bank ti. 'Woroestor Bank, 5 Pickering, 106. SELLECK V. FRENCH. 529 interest will continue to accrue. (1) In Miller v. Bank of Orleans, 5 Wharton, 503, a bill payable on 31st August, 1837, was accepted by the defendant payable at a bank, but was not presented at the bank at that time, and the defendant did not know in whose possession it then was; on 31st August, 1837, the defendant had in the bank, money for the payment of the bill, and kept it there until 1st February, 1838, when he drew it out and used it in his business ; the bill was presented for payment on the 3d July, 1839; it was held, that the acceptor was liable for interest after 1st February, 1838, when he drew the money out, but not before : and the Court said : " While the defendant kept funds in the bank to meet the particular demand, he prevented interest, the deposit being equivalent to a tender;" . . . but " even tendered money subsequently used, bears interest." Where interest is not strictly due as a matter of law, the right to it may be effected by equitable circumstances tending to show that the debtor was not in fault, or that the creditor was in fault : "In many instances, a balance may be due to the plaintiff, and yet it may appear that he has acted so unreasona- bly, by insisting on more than was due, and driving the defendant to the ex- pense of a suit, as may well justify the jury in refusing any allowance for interest. So it may appear from the conduct of the plaintiff, that he gave the defendant reason to suppose that interest was not expected, and this conduct may have induced the defendant to delay the payment of the principal;" per Tilghman, C. J., in Ohermyer v. Nicholh, 6 Binney, 159, 162. Interest is not allowed against an infant. (2) Interest, whether due by express agreement, or given by law as damages, is due according to the rate allowed by the law of the place where the contract is made ; because, where it is not otherwise indicated, it will be presumed that the contract was to be performed there ;(3) a judgment when sued on in an- other state, bears interest according to the law of the state where the original record was. (4) But where a contract is made with reference to the laws of another country and to be performed there, interest is to be calculated accord- ing to the law of the place where the contract is to be performed, unless it be otherwise stipulated in the contract. (5) According to the best authorities, in the absence of proof of the law of the place where the contract was made or to be performed, it will be presumed to be the same with the law of the forum ; (6) but by some courts it has been held, that when a note is made, or is payable F (1) Keetor v. Mark, 1 Missouri, 288 ; Boyce, &a., v. Pritohett's Heirs, 6 Dana, 231, 232. (2) Taft A Co. V. Pike, 14 Vermont, 405, 410. (3) Gibbs V. Fremont, 9 Bxch., 25 ; Arrington v. Gee, 5 Iredell's Law, 690, 695 ; Winthrop V. Carleton, 12 Massachusetts, 4, 6; Hosford u. Nichols, 1 Paige, 221, 225 ; Burton v. Anderson, 1 Texas, 93. (4) Ralph V. Brown, 3 Watts & Sergeant, 395, 401. (5) Fanning «. Consequa, 17 Johnson, 611 ; Soofield v. Day, 20 Id., 102 ; Stewart «. EUice, 2 Paige, 604 ; Boyce and Henry v. Edwards, 4 Peters, 112, 123 ; Archer v. Dunn, 2 Watts & Sergeant,' 328, 365 ; Mullen n. Morris, 2 Barr, 85 ; Pecks et al. v. Mayo, FoUett et al., 11 Ver- mont, 33; Healy v. Gorman, 3 Green, 328 ; Thomas v. Beckman, 1 B. Monroe, 29, 34 ; Cooper V. Sandford, 4 Yerger, 452 ; Dickinson v. The Branch Bank at Mobile, 12 Alabama, 64, 56. (6) Leavenworth v. Brookway, 2 Hill's N. Y., 201, 203, note ; Forsyth et al v. Baxter et al., 2 Scammon, 10, 12 ; Wood and others u. Corl, 4 Metoalf, 203, 204, 206. VOL. I. — 34 530 INTEEEST. in another state, there can be no recovery of interest, without proof of the rate of interest allowed there ;(1) but now by statute in Kentucky, six per cent, is presumed to be the rate of interest in other states, when no proof is given to the contrary. (2) [The place where a bill of exchange is drawn is the place where the contract for the payment of damages in case of protest is made.] (3) The legal rate of interest in another state cannot be proved by parol ; the law establishing it, must be produced. (4) Though a foreign contract bears foreign interest till judgment, yet the judgment upon it bears interest according to the law of the place where the judgment is obtained. (5) Where the rate of interest is altered by law during the accruing of the interest, see Bullock v. Boyd et al. 1 Hoffman, 294, 300 ; Thorntons v. Fitzhugh, 4 Leigh, 209. If a debt be due, either by contract, or upon a judgment, and interest have accrued upon it, and there be a payment of the amount of the debt, the creditor may still proceed for the amount of the interest, for it is to be considered that the payment was first applied by the law in discharge of the interest, so that the surplus is in fact principal; (6) but where the money is paid and received as full satisfaction of the principal debt, a distinction arises between the case where the interest is due as damages for the non-payment of the principal, and where it is due by express agreement : in the former case, if the creditor accepts the money in full satisfaction of the principal debt, without requiring interest from the time the debt was payable, he cannot afterwards sustain an action for the incidental damages arising from the debt not being paid when due ; but where there is an express agreement to pay the interest as well as the principal, performance of one part of the agreement would be no bar to an action for the non-performance of another part. (7) If debt be brought on a judgment, and afterwards the defendant pay the whole amount of the judg- ment, the plaintiff may still proceed for interest, for by bringing suit, he has (1) Evans v. Clark, 1 Porter, 388 ; Dickinson v. The Branch Bank of Mobile, 13 Alabama, 54, 57; Pawling's Adm'r «. Sartain, 4 J. J. Marshal, 238. (2) Thomas v. Beckman, 1 B. Monroe, 29, 34. (3) Gribbs V. Fremont, 10 Exeh., 30. ["A bill drawn upon a third person in discharge of a present debt," said Alderson, B., in this case, " is, in truth, an offer by the drawer that, if the payee will give time for payment, he will give an order on his debtor (the acceptor) to pay a given sum at a given time and place. The payee agrees to accept this order, and to give the time, with a proviso, that if the acceptor do not pay, and he the payee (or the holder of the bill) give notice to the drawer of that default, the drawer shall pay him the amount specified in the bill, with lawful interest." And hence, where Colonel Fremont, being in California, had drawn bills on Washington, D. C, but by the time that the bills arrived at Washington, and were there dishonoured, he was himself at Washington, at which place notice was given to him of the dishonour, it was still held that he was chargeable with interest at the California rate St. 25 per cent., and not at the Washington rate, 6 per cent.] (4) Talbot V. Peoples et al., 6 J. J. Marshall, 200; see Burton v. Anderson, 1 Texas, 93. (5) Verree & Paul v. Hughes, 6 Halsted, 91, 92. (6) People V. New York, 5 Cowen, 331 ; Fishburne v. Sanders, 1 Nott &, M'Cord, 242 ; Nor- wood V. Manning, 2 Id., 395. (7) Fake v. Eddy's Ex'r, 15 Wendell, 76, 80 ; Gillespie v. The Mayor, &o., of New York, 3 Edwards, 512, 514 ; Stone v. Bennett, 8 Missouri, 41, 43 ; Hodgdon v. Hodgdon, 2 New Hamp- shire, 169; see Stearns et al. v. Brown et ux., 1 Pickering, 530, 633 ; Comparet u. Ewing, 8 Blackford, 328, and Howe v. Bradley, 19 Maine, 31, 36, 39. SELLECK V. FRENCH. 531 an inchoate right to interest ; but it might be otherwise, if paid before suit brought. (1) On a contract containing a special promise to pay interest, interest may be demanded in the declaration ; but where the interest is due only as damages, interest eo nomine must not be demanded. In indebitatus assumpsit, if a pro- mise to pay on demand with interest is alleged, an express promise must be proved. (2) In debt on a judgment, or on a decree not directing interest after its date, a count setting out the judgment or decree, and demanding interest, or the amount with interest, is demurable.(3) In all actions in which interest is allowed, the interest is to be assessed according to the practice of the court, up to the time of rendering the verdict, or to the next term, or to such other time when by the course of the court, judgment would be entered. (4) [The obvious rule of justice is that esta- blished by the King's Bench, A. D. 1760, in Rohinson v. Bland, 2 Burrows, 1088, where the Court brought down the interest to the time of giving the judgment,(5) and declared that it saw no reason why juries might not carry it down, computing it in advance of the verdict, and up to the day when judg- ment might be entered. But this rule is probably not universal with us ; and juries usually calculate it only till the day of verdict.] As to interest after the verdict and till the entry of judgment or taxation of costs, the general rule is. that if no delay has been created by the defendant, no interest is allowed; (6) but where delay has been made by the defendant, as by proceedings to obtain a new trial, if the original cause of action was a contract carrying interest, interest on the amount of the verdict till the entry of judgment or taxation of costs will be allowed;(7) but not in an action of tort, not even, it is said, in trover. (8) In Pennsylvania, however, it is said that on a verdict, (1) Administrator of Pinclsney v. Singleton, Ex'or, 2 Hill's So. Car., 343. (2) Tappan et al. v. Austin, 1 Massachusetts, 31. (3) Shelton's Bx'ors v. Welsh's Adm'rs, 7 Leigh, 175, 179 ; Benton v. Burgot, 10 Sergeant . Nickerson, 6 Massa- chusetts, 262; Williams, Administrator, v. American Bank and others, 4 Metcalf, 317, 322 ; see The Fitchburg R. E. Co. v. The Boston and Maine R. R., 3 Gushing, 60, 90, and Parker i;. The Same, Id., 107, 121. (8) Henning v. Van Tyne and M'Gowan, 19 Wendell, 101 ; but qusere ; see Bissell v. Hop- kins, 4 Cowen, 53. 532 INTEREST. when there is a motion for a new trial, which is not granted, interest is not given during the delay. (1) On a writ of error, the allowance of interest in the judgment of affirmance, by way of damages, is generally discretionary with the court above ; and where the cause of action in the court below was a tort, not allowing interest, it is not in the course to allow interest ; (2) but in trover, in which interest on the value from the time of the conversion is allowed in the damages, interest may be given ;(3) it isdiflScult, however, to see why the character of the original cause of action should affect the right to interest on a debt liquidated and due by verdict and judgment. When the record returns, interest can be given in the court below, only according to the direction in the judgment of affirmance. (4) In Pennsylvania, where, upon the construction of the statute of 1700, interest is a legal incident of every judgment, on the aflSrmance of a judgment on a writ of error, interest is given on the original judgment till afiirmance, and then the aggregate amount bears interest ; and costs bear interest from the time they are paid. (5) By st. 3 & 4 Wm. IV., c. 42, s. 30, a court of error, if the judg- ment of the court below be afiirmed, is directed to allow interest for such time as execution has been delayed by the writ of error, for the delaying thereof. [For the rule of the Federal Courts, see Perkins v. Fouryiiquet, 14 Howard, 328.1 Bail in a recognizance on a writ of error, are not liable for interest on the judgment before aflSrmance, where the judgment has been aiErmed without interest, and this probably whether by the terms of the recognizance, they are bound for damages as well as for the judgment and costs, or are bound only for the judgment and costs ;(6) but after afl&rmance, when they become fixed for the debt they are liable for interest. (7) In Kenan, Ex'x, v. Cure, 10 Alabama, 867, it is said to be a general rule that where the principal is liable for interest, the bail is so likewise. On a sale on execution, where interest is allowed to be collected on execution, interest is to be calculated to the return-day of the writ, and not later. (8) Courts of equity follow the law and its analogies, in respect to interest. (9) On debts, on which interest would be given as damages, at law, interest is de- creed by a chancellor down to the time of the decree, but ought not to be directed down to the time of payment. (10) Interest is allowed on all sums liquidated by decree or order of the court of chancery, and on its confirmation of a master's or an auditor's report from the date of the report, as on a new principal, in (1) Hoopes V. Brinton, 8 Watts, 73 ; see Lord v. The Mayor, Ac., of New York, 3 Hill's N, T., 427, 430, note. (2) Gelston v. Hoyt, 13 Johnson, 661, 590. (3) Bissell V. Hopkins, 4 Cowen, 53. (4) Hoyt V. Gelston, 15 Johnson, 221; see Anon., 2 Cowen, 579; Lord v. The Mayor, Ac, of New York, 3 Hill's N. Y., 427. (5) M'Caugland's Administrators v. Bell, 9 Sergeant & Bawle, 388. (6) Butcher v. Norwood, 1 Harris & Johnson, 485, 487; Smith v. Canfield, 1 Root, 372. (7) Frith v. Leroux, 2 Term, 57, 59. (8) Stroheoker v. Farmers' Bank, 6 Watts, 96, 100. (9) Moore, Ac, v. Pendergrast's Heirs, 6 J. J. Marshall, 534; Taylor v. Knox's Ex'ors, 5 Dana, 466, 471; Hammond v. Hammond, 2 Bland's Chancery, 307, 370. (10) Deanes v. Soriba and others, 2 Call, 415, 420; Williams v. Wilson, 1 Dana, 157, 159 ; Dawson, Ac, i>. Clay's Heirs, 1 J. J. Marshall, 165, 166 ; _Creuze v. Hunter, 2 Vesey, Jr , 162. SELLECK V. FRENCH. 533 analogy to a judgment.(l) In a suit against a surety on an administration bond, where money has been decreed to be paid by the adminstrator to creditors or distributees, by a Judge of Probate, interest is to be calculated on the decree from the time or demand from the surety. (2) When chancery awards execution against property fraudulently conveyed, interest on the judgment is given. (3) On judicial sales of real estate for the payment of debts, interest on the debts ceases at the return day of the order of sale. (4) (Interest on interest.) — An agreement to pay interest on interest is not usu- rious nor illegal (5) and the better opinion is, that at law, such an agreement made either at or after the time of the original contract, will be enforced. (6) In several cases, where the payment of the principal, or of part of it, had been postponed to a more distant day than the interest, which by agreement was to be paid at certain specified times, as, annually, or at the end of every year, be- fore the principal is due, it has been held that interest is chargeable on each instalment of interest ;(7) and some cases have held generally that, where there is an express stipulation that interest shall be paid at certain fixed times, as, annually, or at the end of each year, even if the principal be due at or before the first instalment of interest is due, interest is to be charged upon the interest from the time that it is payable. (8) But in other states it is established as a general principle, without reference to the distinction respecting the postpone- ment of the payment of the principal, that though there be an express agree- ment in a note or bond to pay interest at a specified time, as annually, or semi- annually from the date, yet interest upon the interest from the time when it fell due, will not be allowed, but it will be considered that the holder by neglecting to call for his interest when it fell due, waived his right to have it converted into capital j(9) yet it is agreed that the claim to interest on such interest is an equitable one, and a note or other security given for it will be sustained and enforced as on a good and sufficient consideration ;(10) and in like (1) HatnmoncI i'. Hammond, 2 Bland's Chancery, 307, 371; Hunn v. Korton, Hopkins, SH, (2) Heath v. Gay, 10 Massachusetts, 371. (3) Beall r. Silver, 2 Randolph, 401; and see Ryckman v. Parkins, 5 Paige, 643, 547; Laid- ley V. Merrifieia, 7 Leigh, 346, 358. (4) Ramsey's Appeal, 4 Watts, 71, 73; see Carlisle Bank v. Barnett, 3 Watts & Sergeant, 248, 252, 263 ; Collier v. His Creditors, 12 Rohinson's Louisiana, 399, 404. (6) Dow et al. v. Drew, 3 New Hampshire, 40. (6) Bx'ors of Pawling v. Adm'rs of Pawling, 4 Yeates, 220; see Camp v. Bates, 11 Connecti- cut, 488, 496, Ac; Gihbs v. Chisolm, 2 Nott & M'Cord, 38. (7) Kennon v. Dickens, 1 Taylor, 231; S. C, Cameron & Norwood, 357 ; Gibbs v. Chisolm, 2 Nott & M'Cord, 38; O'Neall v. Sims, 1 Strobhart, 115, 116 ; Watkinson v. Root, 4 Hammond, 373; Talliaferro's Es'ors v. King's Adm'r, 9 Dana, 331 ; see Mowry v. Bishop, 5 Paige, 98, 101. (8) Singleton v. Lewis, 2 Hill's So. Car. 408; Doig v, Barkley, 3 Richardson, 125 ; Peirce et al. Ex'rs v. Rowe, 1 New Hampshire, 179 ; and see Stone v. Bennett, 8 Missouri, 41, 45 ; and see De Bruhl v. Neuffer, 1 Strobhart, 426. (9) Hastings v. Wiswall, 8 Massachusetts, 455, apparently overruling Greenleaf v. Kellogg, 2 Id., 568 ; Henry v. Flagg, 13 Metcalf, 65 ; Ferry v. Ferry, 2 Gushing, 92 ; Doe v. Warren, 7 Greenleaf, 48 ; Pindall's Bx'x, Ac, v. Bank of Marietta, 10 Leigh, 481, 484; and see Howe v. Bradley, 19 Maine, 31, 36, 40 ; and see 1 Aikens, 410; Sparks u. Garrigues, 1 Binney, 162, 165, and Atwood i: Taylor, 1 Manning & Granger, 279, 332. (10) Wilcox V. Howland, 23 Pickering, 167; Camp v. Bates, 11 Connecticut, 488; Rose v. The City of Bridgeport, 17 Connecticut, 244, 247 ; Mowry v. Bishop, 5 Paige, 98, 102 ; Fobes 634 INTEREST, manner if accounts have been settled on the basis of an allowance of compound interest, and there has been a promise to pay the balance, the promise is valid and binding. (1) In chancery, however, agreements for compound interest are discountenanced, not because they are usurious, but on grounds of public policy, because they are oppressive and tend to usury, and encourage negligence on the part of cre- ditors in collecting their interest, which in the end it is more beneficial for the debtor should be collected without delay. (2) The rule in equity is, that an agreement made at the time of the original loan, to allow interest on interest, though it is not so illegal as to vitiate the contract, is not valid, and will not be enforced : and interest on interest will be allowed only where there is a special agreement for it made after interest has become due, and to operate prospectively and not retrospectively, or, where there is a settlement of an account between the parties after the interest has become due, or where the master's report, computing the sum due for principal and interest, is confirmed, for it is then in the nature of a judgment. (3) But the case of Mowry v. Bishop, 5 Paige, 98, 102, recog- nizes another distinction, that if the payment of the principal sum is postponed to a more distant period than the times fixed for the payment of interest, on the faith of an agreement to pay interest at those times, a subsequent agreement to pay interest on the arrears of interest due, will be supported in equity : and it appears that in such a case, even where there is no express promise to pay inter- est on interest, equity will not restrain the collection of it by execution at law : Kennon v. Dickens. In Fitzliuijh ei al. v. McPherson, adm'r of Neth, 3 Gill, 409, 428, the general principle was adopted, that when interest has once accrued, it becomes a debt, and there is no longer any objection to an agreement between the parties that it shall be considered principal, and therefore carry interest. It appears to be settled, that where accounts are stated or settled between the parties, interest becomes principal and carries interest (4) [It would also seem, that where interest on a mortgage is payable at a fixed period, the mortgagor cannot redeem without paying interest on interest, for this, in the language of Lord Keeper North, in Howard v. Harris, 1 Vernon, 191, only serves to quicken men to pay their just debts, and to put the mortgagee in the position which he would have held had the mortgagor kept his agreement.](5) As to the charging of interest on rents and profits received by a mortgagee, see Gibson V. GreJiore, 5 Pickering, 146, 160. If a person purchase a mortgage and take an assignment of it, at the request or with the concurrence of the mortgagor, and if interest be then due and be paid for by him, he is entitled to interest on all the money paid by him, as well the interest as the principal originally lent; but if the interest be not actually paid by him, or the payment be not with the & Adams v. Cantfield, 3 HammoncI, 17 ; and see Pindall's Bx'x, &c., v. Bank of Marietta, 10 Leigh, 481, 484. (1) Kellogg V. Hickok, 1 Wendell, 521. (2) Quackenbush v. Leonard, 9 Paige, 334, 345. (3) Connecticut v. Jackaon, 1 Johnson's Chancery, 13, 14, 16 ; Van Benschooten v, Lawson, 6 Id., 313; and see Childers v. Deane, Ac, 4 Randolph, 406, 403, and Niles v. The Board of Com'rs of the Sinking Fund, 3 Blackford, 158. (4) Bainbridge & Co. -v. Wiloocks, Baldwin, 636 ; see Bullock u. Boyd et al., 1 Hoffman, 294, 299, and Von Hemert v. Porter, 11 Metoalf, 211, 218. (5) Harwell v. Sturdivant, 36 Maine, 308. BATTY V. CARSWELL: PEOK V. HAERIOTT: ETC. 535 privity of the mortgagor, interest on the interest will not be allowed. (1) Where one is prevented from receiving interest due, by an injunction out of chancery, which is not sustained, interest on the interest will be granted to him by the court of equity, which always relieves against injustice occasioned by its own acts and oversights ; Hosack v. Rogers, 9 Paige, 462, 465. ["On the subject of compounding interest ontrustees," says Grier, J., "there is not, and could not well be, any uniform rule, which could justly apply to all cases. When a trust to invest has been grossly and wilfully neglected ; where the funds have been used by the trustees in their own business, or profits made of which they give no account, interest is compounded as a punishment, or as a measure of damages for undisclosed profits and in lieu of them. For mere neglect to invest, simple interest only is generally imposed. Six month rests have been made only where the amounts received were large, and such as could easily be invested." Barney v. Saunders et al., 16 Howard, 542, in which case, as in Greenharry's Oase, 1 Washington, 246, the principles are applied. See also, Rowan v. Kirkpatrich, 14 Illinois, 11.] AGENCY. OF THE APPOINTMENT AND POWERS OP AGENTS. OF THE SEVERAL KINDS OF AGENCIES. AGENCIES SPECIAL AND GENERAL, OR EXPRESS AND IM- PLIED. BATTY V. CARSWELL AND CARSWELL. In the Supreme Court of New York. NOVEMBER TERM, 1806. [reported, 2 JOHNSON, 48-50.] Where A. autJwrized B. to sign Ms name to a note for $250, payable in six months, and B. put A.'s name to a note for that sum payahle in 60 days, it tvas held that A. was not liable, A special authority must be strictly pursued. This was an action of assumpsit on a promissory note, alleged to have been made by the defendants. The note was dated the 23d of October, 1801, for the payment of $250, in 60 days. Plea non assumpsit. The cause was tried at the Washington circuit, on the 18th of June, 1806, before Mr. Chief Justice Kent. On the trial, the subscribing witness to the note swore, that two or (1) Jackson v. Campbell, 5 Wendell, 572, 578; Mallory v. Aspinwall, 2 Day, 280, 292. 536 APPOINTMENT AND POWEES OF AGENTS. three weeks previous to the date of the note, David Carswell, one of the defendants, applied to Abner Carswell the other defendant, to be his surety to the plaintiff, on a note for $250, payable in six months, which he consented to do, and directed the witness to sign his name to such a note. A few days afterwards, and before the note was made, David Carswell told the witness, that he had informed Albert Carswell, that he should not want the money of the plaintiff as he could do without it. The witness, with the assent of David Carswell, for whom he acted as clerk and agent, but without the privity of Abner Carswell, signed the note on which the present action is brought, and for which David Cars- well received the amount. It appeared, that Abner Carswell had admitted, in conversation, that he had authorized the other defendant to use his name to a note for $250, for the purpose of procuring that sum of the plaintiff, but that he was told by David Carswell, that he should not want the money, and did not know that the note had been so given, until some time after- wards. The note was then offered to be read in evidence, but objected to by the defendants' counsel, because it had not been proved to have been signed by the defendants ; but the objection was overruled. The defendants' counsel then moved for a nonsuit, which was refused. The judge charged the jury, that if they believed the note was made before David Carswell had told the other defendant, that he should not want the money, the plaintiiF would be entitled to recover, otherwise, they ought to find for the defendants ; but that those were facts on which they were to decide. The jury found a verdict for the plaintiff. A motion was now made for a new trial, unless the court should think proper to grant a nonsuit. Foot, for the defendants, urged the same objections as were made at the trial. Grary and Russell contra, contended, that when an agent acts within the general scope of his authority, the principal would be bound though the agent should exceed his authority. (1) There was an authority to sign a note for $250, for 60 days, which was not revoked. The infor- mation given by David Carswell, did not amount to a revocation of the authority by Abner Carswell. Long acquiescence, after knowing the note to have been made, is strong presumptive evidence of authority. There is an implied assent ; and subsequent assent is sufScient evidence of authority. Boulton v. Hillesden, Comberback, 450. (1) Fenn et al. v. Harrison et al., 3 Term, 7G0; Boulton v. Hillesden, Coniberbach, 460. BATTY v. CAESWELL: PECK V. HAEEIOTT: ETC. 537 Livingston, J. delivered the opinion of the court. This was a spe- cial power, and ought to have been strictly pursued.(l) But the note, to which Abner Carswell authorized the witness to put his name, was to be payable in six months, whereas the one he signed had only sixty days to run. The note, then, as far as it concerned Abner, admitting there was no revocation, was made without his authority. His confes- sion, after the suit was commenced, does not alter the state of the case. It was merely that he had allowed David to put his name to a note. This must have been the one of which the first witness speaks, which was to be payable in six months. There must be a new trial, with costs to abide the event of the suit. New trial granted. PECK AND ANOTHER v. HARRIOTT AND ANOTHER. In the Supreme Court of Pennsylvania. SEPTEMBER, 1820. [REPORTED, 6 SERGEANT AND RAWLB, 146-151.J If any agent, empowered to contract for sale, sell and convey land, enter into articles of agreement, hy which it is stipulated, that the vendee shall clear, make improvements, pay the purchase-money hy instalments, ^c, and on the completion of the covenants to be per- formed by him, receive from the vendor, or his legal represetitative, a good and sufficient warranty deed, in fee, for the premises, the receipt of the agent for such parts of the purchase-money as may be paid before the execution of the deed, is binding on the principal. In the Court of Common Pleas of Crawford county, to which this was a writ of error, the following case was stated for the opinion of the Court, to be considered as a special verdict : Gad Peck and Jared Shattuck, on the 17th October, 1815, executed a power of attorney, by which they authorized Seth Young, to contract for sale, sell, and convey, any parts or parcels of certain lands, of which they were seised, lying in the counties of Erie, Crawford, Warren, and Venango ; confirming and ratifying all that their said attorney should do in the premises, by virtue of the said power of attorney. (1) Eenn et al. v. Harrison et al., 3 Term, 762. 538 APPOINTMENT AND POWERS OF AGENTS. In pursuance of this power, Young, on the 29th December, 1815, entered into articles of agreement with James Harriott and Daniel Le Fevre, for the sale of two parcels of land lying in the county of Craw- ford, for the sum of $578.12, payable in four equal annual instalments, with interest : the first payment to be made December 29th, 1816. The vendees were to erect on the premises, a dwelling-house, in which they were to reside at least five years ; to clear and improve at least five acres for every hundred acres contracted for, and to pay all the taxes which might thereafter become due on the premises. It was further agreed, " that upon payment of the whole, or a satisfactory part of the money and interest, within the terms aforesaid (the improvements afore- said being also completed), the party of the first part (the vendors), or their legal representatives, would execute to the party of the second part, their heirs, and assigns, a good and sufficient warrantee deed, in fee, for the said premises, free of any expense, provided such party should, on the giving of said deed, give bond and mortgage on the said premises for the consideration moneys aforesaid, or so much as may remain due thereof." On the 22d March, 1817, the vendees paid |30, and on the 5th of the following April, the further sum of $346.50, to Young, by whom a receipt, in the name of his principals, was endorsed on the article. This suit being brought for the whole of the purchase-money, the question was, upon the validity of the payments made to the agent. The Court below were of opinion, that they were valid, and the plain- tiffs excepted to their opinion. iSelden and Baldwin, for the plaintiffs in error. The agency of Young was for a special purpose, and where that is the case, the general rule is, that the power is to be construed strictly. It was limited to contracting for sale, selling, and conveying, and did not extend to the receipt of the purchase-money. A power to 'receive, is not incident to a power to sue : so a power to convey, is not incident to a power to sell; nor is a power to receive the purchase-money, incident to a power to convey; because it is not necessary to the execution of the principal power. In the present instance, no conveyance has been executed, and the agreement was, that the money should be paid to the principal. Forward, for the defendants in error. All powers necessary to carry the principal power into effect, are incident to it.(l) Young had power to make conveyances, which in the (1) 1 Livermore on Agency, 105. BATTY V. CARSWELL: PECK V. HAERIOTT: ETC. 539 usual form, acknowledge the receipt of the purchase-money, and there- fore he must have power to receive the purchase-money. Indeed, it is not denied that if the money had been paid down, and a conveyance executed, the agent's receipt would have been good. Why then should it not be so, for part of the purchase-money ? The power was not fully executed by the articles of agreement ; the money was paid by instalments, and the same rule which would authorize him to receive the whole, would authorize him to receive those instalments. Duncan, J., delivered the Court's opinion. Every general grant implies the grant of all things necessary to the enjoyment of the thing granted, without which it could not be enjoyed. Every general power necessarily implies the grant of every matter necessary to its complete execution. An attorney who has power to convey, has so essentially the power to receive the purchase-money, that a voluntary conveyance, without receiving the stipulated price or security for it, would be fraudulent, and either the whole contract might be rescinded by the principal, or the vendee liable for the purchase- money. The principal authority includes all mediate powers which are necessary to carry it into effect. The payment of the purchase-money was an intermediate act between the articles and the conveyance. The receipt of the purchase-money is within the general scope of an authority to sell and convey, as a mediate power, as an act without which the conveyance would be fraudulent. No words could confer a more ample authority than is conferred by this instrument. He has power to contract for sale, and having so contracted, to convey. All the acts he performs, necessary in the premises, are ratified and con- firmed. I cannot yield to the argument, that, having contracted for sale, his power ended, because the language of the power is very explicit, that he has not only power to enter into executory contracts, but, that having entered into them, he has power to execute them by conveyances, and we must not stop at the words contract for Bale, and say, that is a dis- tinct power, but must go on with the whole sentence, sell and convey. Articles are the first step usual in the sale of lands ; the conveyance the last act which the attorney is authorized to perform. If he had con- veyed on the receipt of the whole purchase-money, it is admitted that this would have bound the principal. If he had power to receive the whole, he had power to receive any part, and it surely lies not in the mouth of the principal to say, that because he has not conveyed he has no right to receive the money ; for the same objections would arise, had 540 APPOINTMENT AND POWERS OF AGENTS. he received the whole money, and refused to convey. The validity of the payment does not rest on the actual conveyance, but the power to convey ; the payment is to precede the conveyance. There is nothing in the nature of the thing to justify such a construction, nor in the words of the instrument, and it is a proposition which never can be maintained, that he had only power to receive the money when he had conveyed, and that it is the conveyance which renders the payment valid; whereas, the conveyance could only be good, if the money were paid, if he had power to receive money, and convey. If he has received the money and not conveyed, the payment must, in all reason and justice, be binding on the principal. That the attorney here did not exceed his authority in making the contract, is admitted by this action calling for its execution. If he did not exceed his authority in making the contract, he had power to carry it into execution by conveyance. In order to enable him to do this, pay- ment of the money, or security, was so necessary an incident, that with- out it the act would be fraudulent. He had power to convey ; to con- vey without payment would have been a fraud on the principal'; to re- ceive the purchase-money could not be a fraud. It is not pretended that the power was revoked ; much less that notice of the revocation before payment was given. It is not made any part of the case, that there was any fraud on the part of the de- fendants. The power of attorney is unrestrained as to time, credit, or condition. All the authority that the principals could confer they did. They sub- stituted Young, with all their powers, to part with their title ; to convey the estate in fee ; to bind them with covenants of general warranty. He could sell on credit, having the power to sell on credit ; he could re- ceive the money from the vendee, unless there was something in the in- strument restrictive of this. It would be rather an unusual mode of conducting business to empower an attorney to sell and convey, and restrain him from receiving the purchase money. Here, he is not so restricted, and the implication would be a constrained one ; it would be dangerous for the Court to look for a hidden meaning, where the terms are neither obscure, nor equivocal, or to imply a restriction of a power granted in general terms. The power is not required to be executed uno flatu; there are several acts to be done at several times ; the last act, the conveyance, not to be immediately executed, not to be executed until all the conditions were complied with by the vendees. The several payments were to come round, and until paid, or a satisfactory part, and mortgage given for the balance, under the general power to con- BATTY V. CAESWELL: PECK V. HAREIOTT: ETC. 541 tract for sale, and to convey, unrestrained as to the extent of authority, unlimited in its duration, remaining in full force at the time of payment, the Court of Common Pleas decided rightly, in determining these pay- ments to be valid, and the judgment is affirmed. Judgment affirmed. H. C. ROSSITER v. W. S. ROSSITER. In the Supreme Court of New York. JANUARY TERM, 1832. [reported, 8 WENDELL, 494-499.] A power of attorney to collect debts ; to execute deeds of lands ; to ac- complish a complete adjustment of all concerns of the constituent, in a particular place, and to do all other acts which the constituent could do in person, does not authorize the giving of a note hj the attorney in the name of the principal. It seems, that the larger powers conferred ly the general words, must be construed with reference to the matters specially mentioned ; and in this case it was held that authority to accomplish a complete adjust- metit, ^c, did not authorize the giving of a note on the purchase of •property. The acts of a special agent do not bind the principal unless strictly within tJie authority conferred. Where the drawer of a note affixes his signature as the agent of another, if in an action against him personally, he claims to have had autho- rity to sign as he did, he is bound to show such authority existing at the time of the making of the note, and is not permitted to show a subsequent ratification by his principal, In the spring or summer of 1826, a mercantile firm transacting busi- ness at Watertown, New York, under the name of Fry & Murdock, failed, and assigned the property of the firm to Henry R. Pynchon, of New Haven, in Connecticut, who stood bound as their endorser, in the sum of $15,000. William S. Rossiter came to Watertown with a power of attorney from Pynchon, took charge of the property assigned, and was employed as the agent of Pynchon during the summer of 1826, in arranging and settling the concerns of the firm of Fry & Murdock, the 542 APPOINTMENT AND POWEES OF AGENTS. latter of whom is the brother-in-law of Pynchon, having married his sister. Murdock was in possession of household furniture worth $1000, which he had assigned to Henry C. Rossiter, the plaintiff in this cause, to secure the payment of $612.19, due to him. To release the furni- ture from such assignment, William S. Rossiter, the agent of Pynchon, on the 28th of July, 1826, gave a note to Henry C. Rossiter, for the above sum of $612.19, payable in three years, with interest, and signed the same "Henry R. Pynchon, by his attorney, W. S. Rossiter," and took an assignment of the furniture to Pynchon, and let the same to Murdock, who ever since has paid rent for the same to W. S. Rossiter, as the agent of Pynchon, which agency still continues. When the note became due, payment was demanded of Pynchon, who refused to pay the note, declaring that he was not liable for the payment thereof, and denied the authority of W. S. Rossiter to give his note as his agent. The defendant produced in evidence a power of attorney from Pynchon to him, bearing date the 16th February, 1826, whereby Pynchon ap- pointed him his attorney, to secure, demand, and sue for all sums of money then due, or thereafter to become due to Pynchon, in the state of Yew York or in the British provinces of North America, and to dis- charge and compound the same; to execute deeds of lands then or thereafter to be owned by Pynchon in the state of New York, and to accomplish at his discretion, a complete adjustment of all the concerns of Pynchon in the state of New York, and to do any and every act in his nams ivhich he could do in person. The defendant then offered to prove that after the making of the note, Pynchon assented to the same. The plaintiff objected to this testimony, insisting that if the defendant had no authority, as the agent of Pynchon, to make the note at the time of the making thereof, the plaintiff had a right to hold the de- fendant personally for the payment thereof, and that the subsequent assent of Pynchon could not divest such right. The judge overruled the objection, deciding that evidence of Pynchon's assent, after the making of the note and previous to its falling due, was admissible. The defendant then proved that during the summer of 1826, a constant correspondence was maintained between the defendant and Pynchon, and that Pynchon had expressed his unqualified approbation of the manner in which the defendant had transacted his business at Water- town. The defendant also attempted to prove an express approval by Pynchon as to the giving of the note in question, but succeeded only in showing that the giving of the note had been spoken of in the hearing of Pynchon, and that he did not intimate his disapprobation. The judge charged the jury that the power of attorney did not confer BATTY V. CARSWELL: PECK V. HARRIOTT: ETC. 543 authority upon the defendant to make the note as the agent of Pynchon, but instructed them that if they were satisfied that Pynchon had dis- tinctly and unequivocally recognised the act of the defendant in giving the note, either by his acts or declarations, Pynchon was liable for the payment thereof, and they must find for the defendant. The jury found for the plaintifiF, and the defendant now moved to set aside the verdict. J. A. Spencer, for defendant. The power of attorney authorised the giving of the note : the authority it confers is very broad and gen- eral ; it substituted the defendant in the place of Pynchon, and if the defendant did no more than Pynchon himself would have done had he been present, the acts of the attorney will be justified ; what was done was advantageous to the principal and within the scope of the authority conferred. But if there be doubt whether the giving of the note was strictly within the power conferred, the subsequent ratification by the principal legalizes the act. Pynchon was informed of what had been done, and did not express his dissent ; his silence is tantamount to an express ratification. The judge, therefore, erred in instructing the jury that they must find for the plaintiff' unless they were satisfied that Pynchon had distinctly and unequivocally recognised the act of the defendant ; he should have told them that if Pynchon knew what his asrent had done, and had not within a reasonable time thereafter ex- pressed his dissent, they might presume his assent.{\) The defendant having proved enough to charge Pynchon as the maker of the note, was himself exonerated.(2) W. W. FrotMngham, for plaintiff. A power of attorney must be strictly construed. An attorney acting under a special authority has no powers but such as are granted — none are to be implied. His autho- rity must appear by his commission and not to be derived from implica- tion. (3) The power given to accomplish a complete adjustment of all the concerns of the principal, did not authorize the purchase of property and the giving of notes in the name of the principal. If the attorney had no right to give a note by the power specially conferred, the gene- ral terms used gave no such authority. 1 Taunton, 347. The note (1) Caines & Lord i;. Bleeker, 12 Johnson, 300 ; Munn ■.;. The Commission Co., 15 Id., 44 ; 3 Mass. R., 70 ; Brick v. Johnson et al, 6 Id., 193 ; Drummon et al. v. Wood, 2 Caines, 310. (2) White et al. ii. Skinner, 13 Johns. B., 30r. (3) Nixon V. Hyserott, 5 Johnson, 58; Gibson v. Colt et al., 7 Id., 393; East India Co, v. Hensley, 1 Espinasse, 111 ; Atwood v. Mannings, 7 Barnewall & Creaswell, 278. 544 APPOINTMENT AND POWERS OF AGENTS. being made by the defendant as the agent of another, and having no authority to make it, a right of action accrued against him and a subse- quent ratification by the principal could not deprive the plaintiff of his right to hold the defendant for the payment of the money. A subse- quent ratification is sufficient to charge the principal, but not to deprive the plaintiff of his remedy against the agent. JBy the Court, Savage, Ch. J. The distinction between a general and special agent is well settled ; the acts of the former bind the principal, whether in accordance to his instructions or not ; those of the latter do not, unless strictly within his authority. In this case, the defendant was the special agent of Pynchon ; his letter of attorney specifies what business he is to transact : 1. He was to collect all demands due Pyn- chon, and to discharge and compound the same ; 2. He had authority to dispose of the real estate of Pynchon ; and 3. To accomplish at discretion a complete adjustment of all the concerns of Pynchon. Does this latter clause confer any authority not relating to the business pre- viously mentioned ? The case of Hay v. Goldsmidt, cited by Lawrence, Justice, in Plogg v. Smith, 1 Taunton, 356, was as follows : The plain- tiff's testator had given a letter of attorney to J. & R. Duff to ask, de- mand, and receive of the East India Company all money that might become due to him on any account whatsoever, and to transact all business, and upon non-payment, to use all such lawful ways and means as he might do if personally present. Under this power the attorneys received an India bill which they endorsed to the defendants, who dis- counted the bill ; the defendants received the money on the bill, to re- cover which this action was brought. The court was of opinion that the power to transact all business did not authorize the attorneys to endorse the bill; they said the most large powers must be construed with refer- ence to the subject-matter ; the words all business must be confined to all business necessary for the receipt of the money. In Fenn v. Har- rison, 3 Term, 757, a special agent endorsed a bill contrary to the in- structions he had received from his principals, and the court held that they were not liable. In the East India Co. v. Hensley, 1 Espinasse, 111, the distinction was taken between a general and special agent ; and where a broker was authorized to purchase the best Bengal raw silk, but purchased that which was not so, Lord Kenyon held the principal was not holden, because the contract was made without his authority. In Batty v. Carswell, 2 Johnson, 48, an attorney was authorized to sign a note for the defendant for f 250, payable in six months, and he drew one payable in sixty days. Livingston, Justice says, " this was a spe- BATTY V. CAESWELL: PECK V. HAEEIOTT: ETC. 545 cial power and ought to have been strictly pursued ;" and the note was made without authority. In Nixon v. Hyserott, 5 Johnson, 68, a power was given to execute, seal and deliver such conveyances and assurances as might be necessary, but no special authority was given to bind the principal by covenants ; the attorney executed a deed with the cove- nants of seisin, &c., and the court said a conveyance or assurance is good and perfect without warranty or personal covenants, but no authority was given to bind the principal by covenants. In Gibson v. Colt, 7 Johnson, 390, the owners of a vessel authorized the master to sell a ship in the same manner as they themselves might and could make sale, &c. The master sold the vessel and represented that she was a registered vessel, whereas she had only a coasting license. The court held the owners were not bound. The master was a special agent, and if he exceeded his authority when he made the representation, his principals were not bound, and therefore the remedy was against the agent alone. The same doctrine will be found in White v. Skinner, 13 Johnson, 307, and Munn v. Commission Co. 15 Id. 44, and many other cases. It was contended on the part of the defendant that Pynchon had recognized the acts of the defendant subsequently, and thereby his lia- bility on the note was established, even if the authority by the letter of attorney were doubtful ; but I apprehend the true question is, whether the defendant had at the time authority to sign the note, and thereby obligate Pynchon to its payment. The note when executed was either the note of one or the other ; if it was the note of Pynchon, then the defendant is not liable ; if it was not the note of Pynchon, it was the defendant's note. The cases cited show that the authority of a special agent must be strictly pursued. The letter of attorney specifies two subjects upon which authority is given, and it is added, to accomplish a complete adjustment of all my concerns in said state. According to the case in Taunton, this only extends to the collection of money, and the disposition of the real estate. It seems to me it is going too far to say that the power given authorized the giving the note for $600, or any other sum. Making an adjustment of his concerns, if it relates to any subject not previously mentioned in the letter of attorney, is no authority for signing a note. If the judge erred in his charge, it was an error in favour of the defendant. New trial denied. VOL. I. — 35 546 APPOINTMENT AND POWEES OF AGENTS. GEORGE ODIORNE AND OTHERS v. VIRGIL MAXCY AND OTHERS. In the Supreme Judicial Court of Massachusetts. MARCH TERM, 1816. [reported, 13 MASSACHUSETTS, 178-182.] Of the authority of factors and agents to hind their 'principals. Assumpsit upon two promissory notes, given hy one Perley Rice to the Neponset Cotton Factory Company, and endorsed to the plaintiffs by Levi Maxcy, agent of the said company, and signing his name as such. It was in evidence, that the defendants composed a company, under the above name, who had established and carried on a cotton manufac- tory in the county of Bristol ; some of them residing in the city of Baltimore, and the others in this commonwealth. Levi Maxcy acted as their agent in and about the manufactory, purchasing materials which were wanted, and disposing of the manufactured cotton. Perley Rice, the promisor in the notes, resided in Boston, doing business as agent for a number of manufactories in the country, and amongst them for the said Neponset company ; and had frequently been employed to make sales and purchases for the said company. The notes in question were given for a quantity of iron, purchased by the said P. Rice of the plain- tiffs, who were dealers in that article. The plaintiffs required Rice to give an endorser upon the note, and they were accordingly made paya- ble as above stated, and endorsed " Levi Maxcy, agent for the Neponset Cotton Factory Company." Some evidence, from a deposition used at the trial, was introduced by the plaintiffs, which went to prove that the notes had been recognized, and the liability of the defendants acknow- ledged, by Virgil Maxcy, one of the defendants. This evidence was objected to as irrelevant, by the counsel for the defendants ; but upon an observation of the Chief Justice, that the plaintiffs had made out a sufficient case without this evidence, no further consideration of this topic was had on either side : but still the depositions went to the jury. This was all the evidence in the case, except that the said Virgil had secured the payment of a note given by the said Levi, under similar circumstances, out of the company's property. BATTY V. CAESWELL: PECK V. HARRIOTT: ETC. 547 The Jury, under the Court's instructions, found a verdict for the plain- tiffs, which it was now moved to set aside. W, Sullivan and Sedgwick, for the defendants, argued that Maxcy's agency extended only to the business of selling the goods of the com- pany, and perhaps to purchasing for their use on credit. This was a transaction foreign to the concerns of the company. It was a purchase of Rice for his own use, and it was so known to the plaintiffs. If Maxcy had authority to bind his principals in such a case as this, he might bind them for the price of a house or of a ship. Had he been one of the company, he could bind the company only for their own debts, not even for his own personal debts, and much less for the debt of a stranger.(l) The contract being negotiable does not affect the case, as the plaintiffs are original parties to it. Whitman for the plaintiffs. The case finds, not only that Maxcy was the general agent of the company, but also that Rice was their agent for purchases and sales. The plaintiffs might then very well suppose that this transaction had relation to their affairs. But in such case, had this note been given for a personal debt of Rice, the company must have been bound by the act of both their agents. Nothing however is more common than to purchase one article, which may be had on credit, with a view to exchange it for another, which commands cash in hand : and this might very probably have been the existing state of iron and cotton in this market at the time of this negotiation. At any rate, here was no fraud ; and it was certainly the interest of the defendants to maintain the credit of Rice. In addition to all this, the plaintiffs produced evidence that one of the company had recognized and assumed this demand. Putnam, J. We do not think ourselves warranted to say, that the law will necessarily imply a promise, on the part of the defendants, from the facts reported. If the sale of the iron was made by the plain- tiffs to Perley Rice in his own name, and for his own use, and not for the use of the defendants, we are clearly of opinion that they are not liable, merely because their general agent has pledged their credit as sureties or endorsers for Rice. The authority of a general agent is not unlimited : it must necessarily be restrained to the transactions and concerns appurtenant to the busi- (1) Shirretfti. Wilks et aX, 1 East, 48; Hope v. Oust, cited hy Lawrence, J., Id., 63 ; Kinder et al. V. Shaw et al., 2 Mass. Rep. 298. 548 APPOINTMENT AND POWERS OF AGENTS. ness of the principal. Thus, one who was authorized to buy the raw materials, and to sell the manufactures of a manufacturing company, could not by implication have authority to buy ships or real estate, or any other thing having no relation to the establishment. So, if one was authorized generally to sign promissory notes for the debts of the prin- cipal, it could not be reasonably intended, that he might by implication, have authority to give notes binding his principal to pay the debts of strangers ; or to pledge the credit of his principal as a surety, for goods which were not bought for him, and which never came to his use. Analogous to this principle, it has been well settled, that a factor has no authority to pawn the goods of his principal : for the plain reason that such an authority could not reasonably be implied from the power of selling, to render an account. In the case at bar, we are apprehensive that the jury have not dis- tinctly considered the question, whether the iron was bought for the de- fendants, as an article supposed to be necessary in the management of their affairs. If such was the fact, we should hold the defendants liable in this action ; even if the agent afterwards should have unfaithfully appropriated it to his own use. And if the goods came to the use of the defendants, we should think that was a fact, which was proper for the consideration of the jury, connected with the other circumstances of the case ; as tending to prove that the contract was originally made on their account ; or that they assented to the act of their agent : a subsequent assent being equivalent to a previous command. And the assent of any one of the partners would be good evidence, affecting the rest : unless by the articles or constitution of the company, the whole concern and ' management should have been entrusted to a committee or board of managers ; in which case the assent should be proved to have been given by them or some of them, pursuant to the authority delegated to them by the company. New trial granted. BATTT V. CAESWELL: PECK V. HARRIOTT: ETC. 549 DAVID C. M'CLURE v. EDWARD RICHARDSON. In the Court of Appeals of South Carolina. february term, 1839. [reported, rice's reports, 215-218.] Defendant was the owner of a boat, in which he was accustomad to carry his own cotton to Charleston ; and occasionally, when he had not a load of his own, to taJce for his neighbours, they paying freight for the same. One Howzer was the master or patroon of the boat, and the general habit was for those who wished to send their cotton by the defendant's boat, to apply to the defendant himself. On this oc- casion, the patroon had been told to take Col. Gr.'s and Mr. D.'s cot- ton, which he had done, when the plaintiff applied to Howzer, in the absence of the defendant, to take on board ten bales of his cotton, ashing him if it tvas necessary to. apply to the defendant himself, to which Howzer replied, he thought not, and received the cotton : Held, that under the circumstances, the defendant was bound by the act of Howzer, as being within the general scope of the authority conferred upon him by placing him in the situation of master of the boat, and that the defendant was, consequently, chargeable as a common carrier, for any loss of, or damage to the plaintiff's cotton. This was a special action on the case, to make the defendant liable for cotton lost on board his boat by fire. One Howzer was the patroon of the boat, and took the cotton on board under the following circum- stances. He was employed by defendant to take charge of his boat as patroon, and in the early part of the season of 1835, he made one trip on the Santee to Charleston, S. C, with defendant's own cotton : the habit of the defendant being to use his own boat to carry his own cot- ton, and occasionally, when he had not a load of his own, to take his neighbours'. On the trip when this cotton was lost, the patroon bad been told to take Colonel Goodwin's and Mr. Dallas's cotton ; he took in Goodwin's at defendant's own landing, and Dallas's at Dallas's land- ing, some distance below, in all 110 bales. At this place the plaintiff, M'Clure, applied to the patroon to take on board 10 bales of his cot- ton — asking the witness if it was necessary to apply to Colonel Richard- son himself; the witness replied he supposed it was unnecessary — that 550 APPOINTMENT AND POWERS OF AGENTS. Colonel Richardson was at his summer place and could not be applied to in time for the boat to go off. The cotton, 10 bales, were taken on board after the boat had passed through the rocky part of the river. At night when the boat stopped, fire was communicated to the cotton by one of the hands striking up a fire on board, contrary to orders ; four bales were entirely consumed, two very much injured, and four de-" livered in Charleston. The cotton of the two that were injured, was put on board of another boat, or perhaps on the same boat, and some time afterwards was entirely lost in a gale. The grounds of defence were, that defendant was not liable for the loss, because the patroon was not his agent to take freight, and had no authority to take the cot- ton without the express orders of his employer. This question depended somewhat on the course of dealing and habits of defendant. Several witnesses were examined, who said that they had often shipped their cotton on defendant's boat, and had paid the usual rates of freight. One witness said, he had put cotton on board the defendant's boat in his absence, by making arrangements with his overseer, or patroon of the boat. The general habit was to apply to Colonel Richardson him- self. Howzer, the patroon on this boat, said he never had before taken cotton without Richardson's consent, but that he thought he was at liberty to do so under the circumstances. The case was tried at Nisi Prius before Butler, J., who in charging the jury told them that masters of marine vessels were regarded as the agents of the owners, to take freight, and that the patroons of boats on our inland rivers were generally in the habit of signing bills of lading ; that this being the general understanding, the patroon should be regarded as a competent agent, unless the owner had given some public instructions to the contrary, or there were some collusive contract with the patroon by the shipper, contrary to the known habits of the owner ; that if Howzer were a competent agent to take on board of the boat the cotton in question, [which under the circumstances, the judge thought he was,] then the defendant was clearly liable for the loss of the four bales of cotton which were entirely destroyed, he not having brought himself within any of the exceptions that would exempt a common car- rier from liability, it having been proved that the plaintiff was to pay for the freight of his cotton. With regard to the two bales that were injured, and lost in a gale, his honour thought the defendant should be held liable for them too, as the injury that they received in the first instance, resulted from carelessness, unless it could be shown that the ultimate accident, the act of God, would have destroyed the cotton, in spite of the delay occasioned by the fire; in other words, that the defendant BATTY V. CAESWELL: P E C K V. HARRIOTT: ETC. 551 should be held liable for the free and natural consequences of his care- lessness, as, but for the fire, it was probable that the cotton would have gone in safety to Charleston, The jury having found for the plaintiflf to the amount of his claim, a motion was now made for a new trial. Frost, for the motion. Magrath, contra. By the Court : Whether the defendant, Richardson, would have consented that the plaintiff should put his cotton on board of his boat if he had been present, is a matter of conjecture. It is certain his agent, believing in his authority to do so, did take the cotton. The patroon who was in charge of the boat, represented himself as compe- tent to take in freight, and had not the plaintiff every reason to believe that the agent was acting within the scope of his authority ? The boat had on board Goodwin and Dallas's cotton, for which the owner charged them freight. The plaintiff might well have concluded that his cotton would be carried on the same terms, particularly as defendant had never made any discrimination among his neighbours, but indifferently took their cotton when he wanted freight for his boat. So far as the com- munity were concerned, the patroon (Howzer) occupied the position of any other master of a boat, and might be regarded as the agent of the defendant to take in and sign bills of lading for freight. If the de- fendant had previously employed his boat for his own purposes exclu- sively, it could not have been fairly inferred that the agent could do what his employer never had done — but his employer had used his boat in some measure for the community in which he lived, and from his course of dealing with it, had held himself out as a common carrier. He had not in fact imposed any restrictions on the patroon's authority to take in freight, and was clearly entitled to charge for all that was taken. If he had chosen to make himself liable alone for such contracts as he himself should make, he should have given some public notice — otherwise how natural was it that others might be deceived — more par- ticularly as his agents before this, according to the testimony of Foyle, were in the habit of taking in freight for him in his absence. His lia- bility arising from the general implication of law, was, that he would be answerable for the acts of his agent, acting within the ordinary scope of such agent's usual authority, unless it were specifically limited and restricted. The authority of an agent results from the position in which he is voluntarily placed by his employer ; one should not put an agent 552 APPOINTMENT AND POWERS OF AGENTS. in any public employment if he is not willing to be liable for his acts, bona fide done in such employment; the right of a master to take in freight arises from his custody of a boat, which he is in the habit of carrying for the community. The verdict in this case must stand. Motion refused. Gantt, Richardson, O'Neall, and Evans, Justices, concurred, Earle, J., dubitante. JAQUES vs. TODD. In the Supreme Court of New York. AUGUST, 1829. [reported from 3 WENDELL, 83-94.] Where the course of business between a merchant in the country and a merchant in town is such, that the country merchant transmits to his correspondent in town his produce and such other articles as he has to sell, and the merchant in town, in return, supplies him witJi such articles of merchandise as he deals in, and fills up his orders by pro- curing from other merchants on credit such articles as he does not deal in, and charges than to the merchant in the country, the latter is not liable to the seller for any articles thus procured, although he directs the purchase of an article which he knows the merchant in town does not deal in, and the seller is informed for whom the purchase is made, if the merchant in the country has funds in the hands of the merchant in the city, and has never authorized him to pledge his credit on the the purchase of any articles thus ordered, or recognised sicch act. The agency in such case is special, without authority to pledge the credit of the principal. This was an action of assumpsit for goods (1500 bushels of salt) sold, and which had been ordered by the defendant Todd, who was a country dealer at Waterford, N. Y., from his correspondents, Cuiley & Voorhees, merchants in New York city, who had been in good credit, but at the time of this suit brought were insolvent. The case turned on the nature and extent of the authority of Bailey & Voorhees, as Todd's agents. BATTY V. CAESWELL: PECK V. HAERIOTT: ETC. 553 It appeared that there had been a course of dealing between Todd and Bailey & Voorhees, the former having been in the custom of con- signing to these latter whatever produce he had for the New York mar- ket ; they selling it and giving him credit therefor ; and he, in turn, pur- chasing of them the goods which he required for his store at Waterford. In this particular instance, it was proved, that the salt when ordered was on board a vessel of the plaintiffs, and that the plaintiff sent to his measurer of salt on board this vessel, a direction " to deliver to M. U. Todd, (the defendant,) 1500 bushels of salt," and that the servant of the defendant, a captain of a sloop owned by him, received it and receipted for it on the back of the order, as " the contents of the within order," and delivered to Mr. Todd at Waterford accordingly. The salt was charged to Todd; and another lot of salt ordered by B & V. for one Stewart, under very similar circumstances was charged to Stew- art. This salt was delivered August 13, 1825. Bailey & Voorhees failed October 17, 1825. It appeared that prior to the time the salt was delivered, the plaintiff had expressed his doubts of the solvency of Bai- ley & Voorhees, who very frequently had applied to him to lend them money, which,' as he said, he was " very uneasy about, being unwilling to lend and yet unwilling to refuse." It further appeared on behalf of the plaintiff that in reply to two letters from the plaintiffs to Todd, dated November 3, 1825, and 1st December, 1825, calling on him for a note for the 1500 bushels of salt, the defendant had said that in 10 or 12 days he would be in New York " and would do himself the honor of waiting on" the plaintiffs. " On the part of the defendant, Bailey testified, that he, as a member of the house of Bailey and Voorhees, in August, 1825, bought of the plaintiffs the salt in question. That the house of Bailey and Voorhees had orders from the defendant to buy 1000 bushels of salt for him, and that on the suggestion of McGuire, the captain of the defendant's sloop, he increased the quantity to 1500 bushels. At the time of the purchase he told the plaintiffs he was going to send the salt to the de- fendant, and wished it to be delivered on board the defendant's sloop, of which McGuire was captain : that the defendant was known to the plaintiffs as a man of high responsibility ; that he bought the salt for the defendant on a credit of four months ; that he bought it on his own responsibility ; that he did not use the credit of the defendant, and had no authority to purchase on his credit ; that he never purchased for the defendant on the credit of the defendant, and that in no instance had he ever been authorized by the defendant to pledge or use defendant's credit ; that he almost always had funds of the defendant in his hands, 554 APPOINTMENT AND POWERS OF AGENTS. as he was in the habit of receiving and selling his produce, and at the time of the purchase in question was indebted to the defendant $1500, the avails of articles remitted to his house to be sold ; that the defend- ant usually dealt with his house, who sold him such articles as he needed and they had, and such as they had not and he ordered, they went out and purchased for him on their own responsibility, and charged to him ; that when the defendant ordered the salt, he knew that Bailey and Voorhees did not keep it for sale ; frequently when the defendant sent them cash to purchase articles which they had not themselves, they pur- chased the articles on their own responsibility on credit, and charged them to him at cash prices, and had the benefit of the credit themselves ; that they were knotvn as the general agents of the defendant in New- York ; that at the time of the purchase of the salt in question of the plaintiffs, nothing was said as to its being on the account and credit of Bailey and Voorhees or on the defendant's account and credit, but it was his understanding that the purchase was for the notes of Bailey and Voorhees, in the same manner as previous purchases had been made ; that the house of Bailey and Voorhees had often bought salt from the plaintiffs for the defendant, and had given their own notes therefor ; that they always purchased on their own responsibility ; that the bills of parcels would sometimes not be sent in, until by the lapse of the term of credit the paper to be given would be bankable, when the paper would be sent for and they would give their notes ; that some- times the plaintiflfs would wait until the credit had entirely expired, when on sending in the bills they would receive the money or a check ; that the defendant was in the habit of buying salt himself of the plain- tiffs, and on making such purchases, would draw in favor of the plain- tifiFs on Bailey and Voorhees, who accepted his drafts ; that the house of Bailey and Voorhees failed on the 17th October, 1825 ; that their credit was good up to the time of their failure, but they were much pressed for money ; that the defendant knew the salt in question came from the plaintiffs ; that it had never been charged by Bailey and Voorhees to him, because no bill of parcels had been rendered to wit- ness, he never making but one entry of those transactions, and always waiting till the bills came in before he debited the defendant; that no bill of this salt ever was rendered by the plaintiffs to his house, it having stopped payment as above stated. Salt is usually purchased on a credit of four months. Another witness for the defendant testified, that in August, 1825, he proposed to buy salt of the plaintiffs, who said he might have it on the same terms they had sold a lot to Bailey and Voorhees; that on the day BATTT V. CAESWELL; PECK V. HARRIOTT: ETC. 555 of the failure of Bailey and Voorhees he met one of the plaintiffs and asked him if he would lose anything by them, to which he replied he was afraid he should ; that they had purchased two parcels of salt of him to go up the river, one for Todd and one for another man, hut he should try to saddle it on Todd. The judge charged the jury, that to entitle the plaintiffs to recover, they must show, either that the house of Bailey and Voorhees were the general agents of the defendant to make purchases on his credit, or that he had authorized them to make this particular purchase on his credit, or that he had subsequently ratified their act ; that if the jury were satisfied from the testimony that both parties understood at the time of the purchase that the salt was bought on the sole credit of Bai- ley and Voorhees, the question of agency would not arise ; that having funds in their hands to more than the amount of their purchase on the order of the defendant, and the salt coming to his use, would not make him liable ; that the testimony of Bailey negatived the conclusion that the defendant ever authorized Bailey and Voorhees to pledge his credit for the purchase, or that he had given them a general authority for that purpose, or that he had subsequently sanctioned the act, and if the jury believed his testimony, which was unimpeached, the purchase was on account of Bailey and Voorhees, and not of the defendant ; that it was a common practice for merchants in the city to fill up the orders of their customers, and if the customer never authorized or intended his credit to be pledged to a third person, it would be unreasonable to make the customer responsible to every person of whom the merchant had purchased, especially when, as in this case, the customer had sufficient funds in the hands of the merchant ; but if he was in the habit of per- mitting the merchant to purchase on his credit, he would be liable, whatever might be the situation of their accounts, or whatever might be his intentiDu in the particular instance; that the books of the plain- tiffs had been admitted in evidence, but were not to be considered as legal evidence of the sale of the salt to the defendant. Books of ac- count were sometimes evidence of a sale and delivery of goods, but they were evidence only in the absence of witnesses to 'the facts to which they related. In the present case, the jury had the evidence of Mr. Bailey, the person acting at the time ; all the books proved was, the understanding of the plaintiffs, which could not charge the defendant, if Bailey and Voorhees were not authorized to purchase on his credit. The jury found a verdict for the defendant, which was now moved to be set aside. 556 APPOINTMENT AND POWERS OF AGENTS. D. Lord, jun. for plaintiffs. Bailey and Voorhees could not have claimed the purchase of the salt on their own account. They could not have charged the defendant a profit. They would not have been liable for the loss of the article ; the property had vested in the defendant. An action could not have been maintained against them by the plain- tiffs, the original entry being against the defendant ; as between them and the defendant they were simply his agents. Whether Bailey and Voorhees were authorized or not to purchase on the defendant's credit is entirely immaterial, the fact being shown that they acted on his behalf, and for his benefit. When an agency is established, the prin- cipal is liable, although it does not expressly appear that the credit of the principal was authorized to be pledged. The principal is charged because he has the selection of his agent, and therefore cannot complain when he abuses his trust.(l) The fact that nothing was said at the time of the purchase to whom the credit was given, when it is admitted that the plaintiffs were told that the purchase was made for the defendant, establishes the liability of the defendant. Bailey says he understood the purchase to be for the notes of his firm. The books of the plain- tiffs show that they understood the purchase to be on the defendant's liability; but the rights of the parties must be determined by the under- standing of both parties, by the contract made between them, or the contract made by the law upon the facts disclosed.(2) D. B. Tallmadge ^ S. Staples, for defendant. Bailey and Voorhees never acted as the agents of the defendant, notwithstanding the testi- mony of the witness (Bailey) that his house were known as his general agents in New- York. The meaning of the witness is to be gathered from the whole of his testimony, from which it is manifest that they were not such agents. Bailey and Voorhees had, in repeated instances, purchased salt of the plaintiffs for the defendant, and given their own notes. The case is not to be distinguished from that of a master send- ing out a servant with cash to make purchases, who, instead of paying out the money, obtains the property on the credit of his master ; in which case it will not be pretended that the master would be liable. The power of an agent should not rest on intendment, but be conclu- sively shown; as when a person is. sought to be charged as a partner, the proof must be positive. It is conclusively shown that Bailey and (1) Waring ot al. v. Favenck et al., 1 Campbell, 85 ; Kymer v. Suwereropp, Id., 109 ; Bolton v. Hillersden, 1 Ld. Raymond, 224; Rusby e. Scarlett, Esq., 5 Espinasse, 76. (2) Porter v. Taloot, 1 Cowen, 369. BATTY V. CAESWELL: PECK V. HARRIOTT: ETC. 557 Voorhees were always in funds for the defendant, which is the govern- ing principle. (1) D. B. Ogden, in reply. An agent is one who is employed to do an act for another. Bailey and Voorhees were employed to make a pur- chase for the defendant ; they therefore were his agents. They never charged the defendant with the salt. The allegation of the defendant that he had funds in the hands of his agents which they did not pay over, will not help him. There are two classes of cases on this subject ; one where the agent acts in his own name, and the principal is not known at the time of the purchase ; there the principal, when discov- ered, may be charged : the other ; where the seller knows that the pur- chaser acts as agent. In such case the principal is liable of course, unless it be affirmatively shown that the credit was given to the agent. Whether an agent has authority to purchase on credit, is a question of law, and not of fact. The judge therefore ought not to have refused to instruct the jury on that point." By the Court, Marcy J. Do the facts of this case make out a general or a special agency ? Although Mr. Bailey states his house were the general agents of the defendant in New York, and were known to be such, this part of his testimony is to be taken in connexion with what he had before said in relation to the agency. He had previously declared that the article in question was purchased on his own responsibility for the defendant ; that he had never used, or had authority to use the credit of the defen- dant, in any instance whatever. The distinction between a general and a special agent is not always obvious ; indeed, to trace the line that separates them is sometimes a matter of great nicety ; and I apprehend that the principal difficulty in this case relates to this distinction. " By a general agent is understood, not merely a person substituted in the place of another for transacting all manner of business (since there are few instances in common use of an agency of that description), but a person whom a man puts in his place to transact all his business of a particular kind ; as to buy and sell certain kinds of wares, to negociate certain contracts, and the like."(2) A person employed by another for a particular purpose, and acting under limited and circumscribed powers, is a special agent, and cannot bind his principal by any act exceeding the precise limits of his authority.(3) A factor, employed to sell goods, cannot pledge them. (1) Paley on Principal and Agent, 141 ; Rusby v. Scarlett, Esq., 5 Esp. R., 76. (2) Piiley on Agency, ch. 3, sec. 5. (3J 2 Saunders on Pleading and Evidence, 732. 558 APPOINTMENT AND POWERS OF AGENTS. (Id. 735.) A person employed to sell articles at auction, at not less than a stated price, cannot, it is said, sell them at a private sale, even for a price beyond that fixed for the sale at auction. (1) A principal who agrees to accept, and authorizes his agent to draw bills for advances on merchandise purchased for and consigned to him by such agent, is not liable for bills drawn on him by the agent, on account of his own property consigned to the principal. (2) A distinction is to be taken also between a special agent and a general agent, with instructions pri- vate or unknown to the person dealing with him, limiting and controlling, in particular instances, the exercise of his general powers. If Bailey and Voorhees had been constituted the agents of the defendant, with power to buy and sell for him, but were directed not to buy on credit when they had funds belonging to him, they would have been general agents ; and if they had disregarded the instructions of their principal, and actually pledged his credit while they held his funds, he would have been bound by their acts, and it would have availed him nothing to show that they had transgressed the limits prescribed to them. In such a case, the power to purchase on credit would have existed in the agent ; but its exercise would be controlled by instructions, and dependent on circumstances not presumed to be generally known. But if the defen- dant, in constituting them agents, had withheld from them, under all circumstances, the authority to buy on his responsibility, or even to buy at all for him unless they were furnished with funds for immediate pay- ment, they would, in my opinion, be only special agents. The evidence of Bailey is explicit, that his house never had the power to purchase on credit for the defendant. Their mode of doing business is one that is very common. The mer- chant in the country sends what articles and produce he has on hand to a merchant in New York to sell, and transmits to him his orders for such goods as he may require. He is probably aware that there are articles on his order which the merchant to whom it is directed does not usually keep ; but he expects, as the correspondent has his funds, that he will make out the assortment by purchasing on his own account, and perhaps on credit, such articles as his own establishment cannot supply. No country merchant, under such circumstances, supposes that he is committing his fortune to his correspondent, by giving him an unlimited power to use his credit in purchasing goods. From the testimony in this case, taking it altogether, Bailey and Voorhees appear to me to have been special agents, without the power to pledge the credit of the defendant. (1) Daniels v. Adams et al., Ambler, 498. (2) Schimmolpeniok v. Bayard, 1 Peters, 264 BATTY V. CAESWELL: PECK V. HARRIOTT: ETC. 559 If a special character can be given to their agency, consistently with well-established principles of law on this subject, it appears to me that it should be done. Prudence on the part of principals requires that they should often make restrictions limiting their responsibility ; and when made in good faith, they should be recognised and upheld with all neces- sary safeguards for their support, and cautionary regulations to preserve them from perversion or abuse. If the fact was clearly made out, that the salt was purchased by Bailey and Voorhees on the credit of the defendant, restricted as the agency was, I should consider it an act beyond the scope of their authority, for which the defendant would not be liable. I arrive at this conclusion from a view of the general character of the agency as detailed in Bailey's testimony. It is proper to examine more minutely and critically the facts and circumstances relative to the sale of the salt, to see if there is anything to vary the character of the transaction. The plaintiffs were informed that the salt was purchased for the defendant, and the defendant actually received it. Whether the credit was given to the defendant or to Bailey and Voorhees, is a matter left in some doubt. It would seem, from the entries in the books of the plaintiffs, that the credit was given to the defendant ; another quantity sold at the same time, at the instance of Bailey and Voorhees, to Stewart, under somewhat similar circumstances, was charged to him, and not to Bailey and Voorhees. Bailey, however, says he gave no direction to have the salt in question charged to the defendant. He intended to buy it, and supposed he had bought it, on his own credit; he had often bought the same article of the plaintiffs for the defendant ; and the previous purchases had always been on the responsibility of his house. From a conversation of the plaintiffs with one of the witnesses, after the failure of Bailey and Voorhees, it is quite evident they doubted the liability of the defendant. It is not so mate- rial to know to whom the plaintiffs charged the salt, as it is to ascertain to whom the facts warranted them to make the charge ; for the rights of one party are not to be affected by the misapprehension of the other. If the facts relative to the sale are all before us, and there is no reason to suspect they are not, it would seem that in making the charge, on the supposition it was made against the defendant, the plaintiffs looked more to his ability to pay tljan to these facts. The circumstance that tlie salt was purchased with a design to be sent to the defendant, and that this was made known to the plaintiffs, does not, in my opinion, change the features of this case. There is some ambiguity in the wit- ness's expression that he purchased the salt for the defendant. He un- 560 APPOINTMENT AND POWERS OF AGENTS. doubtedly meant to be understood that he purchased it for the use of, or to be sent tp the defendant, but not on his account ; for he followed this expression immediately by the declaration that he purchased it on his own responsibility. But the defendant had the property, and it is therefore urged that he is liable to pay the plaintiif for it. The answer to this is twofold. It appears, in the first place, that the plaintiifs did not sell the property to the defendant, but to Bailey & Voorhees; if, however, upon the ques- tion of fact, there was any doubt, the other answer is conclusive — Bailey and Voorhees had funds furnished by the defendant, and his order to them was to procure it with these funds. So they understood it, and nothing was then or had been previously done to authorize the plaintiffs to understand it otherwise. If the facts will at all warrant the position that the defendant sent his agents to the plaintiffs to buy the salt, it was with money to pay for it. He can therefore avail him- self of the principle, that where money is given to the agent or servant to purchase goods for his principal or master, and he retains the money, and purchases on the credit of his employer, the latter is not liable, un- less it can be shown that sometimes the agent or servant has been per- mitted to buy on credit. (Memorandum, 1 Shower, 95 ; Rusby v. Scarlett, Esq., 5 Espinasse, 76. Peak's N. P. 47. Paley on Agency, 140.) New trial refused. The most practical distinction in agencies is between express and implied. The distinction between special and general, when properly understood, amounts nearly to the same thing ; but there are ambiguities in the use of these words, which have produced confusion. Special, instead of being understood as apply- ing to the appointment, has been supposed to refer to the limited nature of the acts authorized to be done ; and general, instead of being considered as indi- cating the way in which the agency is created or inferred, has been defined as embracing an indeterminate power. The definitions, commonly given, that a general agent is one put in the place of the principal to transact all his busi- ness, or all of a particular kind, and that a special agent is one employed to do specific acts, are vitious. A general agent is one who has been generally, or usually, employed to do certaiu things, though of the most limited range; and a special agent is one who has been specifically* authorized to act, though it may be in the most extensive and discretionary way. But by whatever names these different agencies may be called, the important distinction in the law, is between those express and special, or intentional, authorizations, under which the agent has no powers but such as the principal meant should be exercised by him, and BATTY V. CARSWELL: PECK V. HARRIOTT: ETC. 561 those implied, or unintentional, agencies, in which the agent becomes vested with power in law, to bind the principal beyond the limit to which he meant to be bound, or altogether against his intention, — a power derived from the acts of the principal in relation to the agent and the public. It is to one class of the latter kind, that the term general agency, is applied, in the common law. Express or special agencies. — If there be an express or special authority, the agent cannot by virtue of that authority, bind the principal beyond its express terms, or beyond those implied powers which are legally to be considered as accompanying, and being involved in, the appointment of an agent for the pur- pose in question. The rule of the common law, is, that no man can be bound by the act of another, without or beyond his consent; and where an agent acts under a special or express authority, whether written or verbal, the party dealing with him is bound to know, at his peril, what the power of the agent is. and to understand its legal effect; and if the agent exceed the boundary of his legal power, the act, as concerns the principal, is void. (I) Even if the act done beyond the scope of the agent's authority, be more for the benefit of the prin- cipal than that which was authorized, yet if it were unauthorized, it is void. (2) lu fact, the power of the agent, and the rights of the person dealing with him, as against the principal, depend upon a legal construction of the instrument, or language, of authorization, and that, of course, proceeds upon the intention, as legally signified, of the principal. The power must be pursued with legal strictness ; and the agent can neither go beyond it nor beside it. The act done must be legally identical with that authorized to he done, or the principal is not bound. The case of Batty v. Carswells illustrates the principle here stated ; and there are numerous decisions to a similar effect. A written authority to draw for a certain sum at four months, will not render the principal liable on a bill drawn in formal accordance with the power, but antedated so as to be payable in less than four months, even when the bill was taken on the faith of the written authority. ^3) A special authority to receive paymentof a note payable at a certain time in commodities, or to accept commodities delivered at a certain time in discharge of a debt, does not authorize such accep'tance after the speci- fied time. (-4) [A power to accept a draft, to be used for one purpose, does not authorize an acceptance which is used for another.] (5) A power of attorney to receive a legacy and release the claim, will not authorize a release of a devise (1) See Delafield v. The State of Illinois, 26 Wendell, 193, 222; North River Bonk v. Aymar, 3 Hill's N. Y., 263, 266; Seals o. Allen, 18 Jolinson, 363, 366; Hampton et al. v. Matthews & Shaw, 2 Hiirris, 105, 108 ; Johnson r. Wingate, 29 Maine, 404, 407 ; Thompson i!. Stewart, 3 Connecticut, 172, 183; Fisher & Johnson v. Campbell, 9 Porter, 211, 216; Ban- ovgee V. Hovey et al., 5 Massachusetts, 11, 37; Dresser Manuf. Co. v. Waterston and others, 3 Metcalf, 9, 18; Murdoek and others t). Mills and others, 11 Id., 6, 16; Baring v. Peiroe, 5 Watts & Sergeant, 548; Allen v. Ogden, 1 Washington, C. C, 174; Fox v. Fisk, 6 Howard's Mississippi, 328, 345 ; Curtis et al. v. Innerarity, 6 Howard's S. Ct., 146, 162, Ac; Stainback ■V. The Bank of Virginia, 11 Grattan, 269, 281. (2) Cox A Cox V. Robinson, 2 Stewart A Porter, 91, 101. (3) Tate & Hopkins i;. Kvans, 7 Missouri, 419. (4) Stewart t>. Donnelly, 4 Yerger, 177; Longworth i>. Connell, 2 Blackford, 469, 472; Brown V. Berry, 14 New Hampshire, 459, 463. (5) Nixon t>. Palmer, 4 Selden, 400. VOL. I. — 36 562 APPOINT ME N'T AND POWERS OF AGENTS. of lands j(l) a power to ask, demand, sue for, &o., all sums of money, debts, &o., which are or shall be due, &e., will not authorize a release of debts that are not due;("2) an authority to receive payment of a debt in money or a note payable to order, gives no power to dispose of the note after it is taken ;(3) an agency to bargain and sell lands will not enable the agent to give authority to the purchaser, before conveyance, to enter and cut timber. (4) An agent to whom a horse is given to sell, for the principal, cannot deliver him in payment of his own debt, and the principal may recover the horse from a purchaser from such deliveree;(5) and an attorney authorized to receive a debt, due to his principal, cannot commute that debt by exchanging it for one due from himself to the debtor. (6) An authority to an agent to sell ahorse or exchange him for another horse suitable for staging, would not render the principal liable upon a warranty given by the agent in exchanging the horse for ponies not suitable for staging.(7) Where the principal directed the agent to sell with the condition that the property should not pass till payment, and the agent sold and delivered possession under an agreement that the vendor should have a lien for the purchase-money, the sale was held to be void. (8) Where an agent was sent with current bank-notes to pay a bill, with directions to see the amount endorsed on the note, or receipted for, as paid, or else to bring the notes back, and the agent paid the notes, and took a conditional receipt, it was held that the acceptance of such a receipt by him was beyond his authority and void ; and that the acceptance of the notes by the other party, made them payment. (9) In like manner, it has been held, that an authority to sign and endorse notes in the principal's name at a particular bank, gave authority to sign and endorse notes payable at and due to that bank, but not notes due or payable elsewhere ;(10) and that an authority to subscribe the principal's name as maker or endorser of a note to be discounted in a certain bank for the accom- modation of the agent, would not authorize the signing of the principal's name to a note given for purchases made at shops by the agent. (11) iSo, an authority by several principals to an attorney to endorse their names jointly on certain bills, is not satisfied by making successive endorsements of the names on a note payable to one of them, for the liabilities are diiferent.(12) For other illustra- tions of the general principle, see the cases cited below ;(13) [nor does an authority to draw bills, in the name of the principal, authorize a drawing in (1) Shepley v. Lytle, 6 Watts, 500. , (2) Heffernan v. Adams, 7 Watts, 116, 120. (.3) Hays & Wiok v. Lynn, 1 Watts, 624. (4) Hubbard v. Elmer, 7 Wendell, 446. (5) Parsons v. Webb, 8 Greenleaf, 38. (6) Kingston v. Kincaid et al., 1 Washington, C. C, 454, 450. (7) Scott V. McGrath, 7 Barbour's S. Ct., 53. (8) Cowan v. Adams et als., 1 Fairfield, 374, 380. (9) Snow V. Perry, 9 Piolfering, 539. (10) Morrison's Ex'or v. H. Taylor, 6 Monroe, 82. (11) Horton & Hutton v. Townes, 6 Leigh, 47. (12) Bank of United States v. Beirne, 1 Grattan, 234; S. C, 539. (13) Lance v. Barrett, 1 Hill's So. Car, 204; Lagow v. Patterson, 1 Blackford, 252; Swett et al. V. Brown and Tr., 5 Pickering, 178; Hopkins v. Blane, 1 Call, 361; Thorndike v. Godfrey, 3 Greenleaf, 429; Gordon v. Buchanan, 6 Yerger, 75, 79 ; Dehart, Ac, «. Wilson, &tt., 6 Mon- roe, 577, 581; Mitchell's & Dayis's Adm'rs t>. Sproul, 5 J.J. Marshall, 264, 267. BATTY V. OARSWELL: PECK V. HARRIOTT: ETC. 563 the joint names of the principal and agent.](l) An authority to endorse is not an authority to receive notice of dishonour. (2) An agency to carry timber and deliver it to a certain person, will not authorize a sale of it. (3) A mere special authority or direction to sell, does not authorize a sale on credit, unless commercial custom has given rise to such an understanding in some particular business; a power to sell stock does not authorize a sale on credit, and the owner is not bound by a sale so made. (4) So a written power to sell for a cer- tain sum, was decided to mean for so much ready money, and not for notes, unless there were something in the power itself, or in the usage of trade, to manifest a different intention; (5) [nor does a power to collect a debt authorize one to release the debt on a note being given ;(6) nor, as would a power to sell, if he had an opportunity — the power being given to a person in the habit of selling at private sale only — authorize a sale by auction, which is ordinarily the last resort to reduce property into money.] (7) On the other hand, a factor has authority to sell on credit; see infra. And whether in case of a specific authority, a discretion to sell on credit is given, must depend on the construc- tion of the authority in the particular case. In May v. Mitchell, 5 Hum- phreys, 365, a principal delivered to an agent three mules to be taken to the southern market and sold for the best price that he could get, and the proceeds to be returned ; the defendant took them to the south, and sold them on credit, and the purchaser proved insolvent; it was held that the agent was vested with a discretionary power to sell upon the best terms that could be procured according to the course of trade in that part of the country to which the animals were carried; and as this was proved to be upon credit, since property could not otherwise be sold at anything like a fair price, the agent was decided not to be liable to the principal. (8) But in all cases, an authority is to be construed, and the intention of the principal to be ascertained, in reference to the pvrpose of the appointment ; and a consideration of the object which the agent is directed to accomplish, will either expand the powers specified ah means of executing it, or limit the exercise of the most general powers conferred. Accordingly, it is a general maxim, applicable to special and limited agencies, as well as to those which are more comprehensive and discretionary, that in the ab.sence of special instruc- tions to the contrary, and in the absence of such prescription of the manner of doing the act, as implies an exclusion of any other manner, an authority or direction to do an act, or accomplish a particular end, implies and carries with it, authority to use the necessary means and inducements, and to execute the usual, legal, and appropriate measures, proper to perform it ; or, as it has been expressed, " the principal authority includes all mediate powers which are necessary to carry it into effect." (9) (1) Stainbaok v. Read, 11 Grattan, 2S1. (2) Valk V. Gaillard, 4 Strobhart, 99. (.S) Powell V. Buck, 4 Strobhart, 427. (4) Delafield v. The State of Illinois, 26 Wendell, 193, 223. (5) Ives V. Davenport, 3 Hill's N. Y., 374, 377. (6) McCuUoch V. McKee, 16 Penna. State. 293. (7) Towle V. Leavitt, 3 Foster 375. (8) See Leland v. Douglass, 1 Wendell, 490, 492. (9) Peck and another v. Harriott and another. 564: APPOINTMENT AND POWERS OF AGENTS. The amount of this rule is, that a direction or authority to do a thing, is a reasonable implication of the powers necessary to accomplish it, unless there is a special restriction, or unless an intention to the contrary is to be inferred from other parts of the authority (1) Upon this principle, it has been decided that a special agency to sell chattels, or to procure subscribers to a joint-stock company relating to lands, implies (unless forbidden,) an authority to bind the principal by a warranty, or representations, respecting the quality or condition of the subject of the contract; such being usual means of accomplishing the proposed end ;(2) and that an authority to sell a slave, includes and implies a power to warrant that he is sound ;(3) [and that an authority to purchase goods on credit implies an authority to make the necessary representations as to the principal's solvency.](4) An authority to discount bills or notes implies an authority to endorse them. (5) In like manner, an authority by deed to sell real estate, will authorize the attorney to make conveyances by deeds, except where such a power is expressly reserved ;(6) and an authority to sell and convey lands, will authorize the execution of deeds with general warranty binding the principal, if there be no restriction in the power ;(7) or with cov- enant of seisin ;(8) and these oases, with those above cited, v?arrant the con- clusion that Nixon v. Eysei-ott, 5 Johnson, 58, in which it was decided that an attorney authorized to sell lands could not execute a deed containing a covenant of seisin, is not law. See also as to the general principle, Wilson v. Trcup, 2 Cowen, 197. A power of attorney to contract for sale, sell and convey, lands, authorizes the attorney to receive the purchase-money before execution of the deed. (9) An authority to an agent to sell lands by auction will empower the agent to exact a reasonable and usual sum to be paid down as earnest. (10) So an authority to settle accounts is said to imply an authority to allow credits; [and a general power to sell goods and collect the price implies a power to make a deduction from the price, after they are sold, on settlement ;] and a general power to contract for the purchase of any commodity implies a power to rescind or discharge the contract, if it becomes expedient to do so. (11) [But a simple authority to settle an account will not, generally speaking, authorize a submis- sion to arbitration, that being a personal trust. ](12) The rule that a grant of power to accomplish any particular enterprise carries with it authority to do all that is necessary for the work, is said to apply especially to works of a (1) See Bayley v. Willdns, 7 C. T,., .SSii. (2) Sandford v. Handy, 23 Wendell, 260 ; Nelfon r. Cowing, 6 Hill, S37; overruling Gibson V- Colt and otbers, 7 Johnson, 390 : Woodford v. McClenahan, 4 Gilman, 85, 91. (3) Skinner v. Gunn, 9 Porter, 305; Gaines i\ McKinley, 1 Judges' Alabama, 446; Cocke v. Campbell & Smith, 13 Id., 286, 2S9 ; Franklin i'. Ezell, 1 Sneed, 500. (4) Hunter v. Hudson R. R. Iron i.'o., 20 Barbour, Wit. (5) The Merchants' Bank of Macon v. The Central Bank of Georgia, 1 Kelly, 418, 431. (G) Valentine v. Piper, 22 Pickering, 85. (7) Peters v. Farnsworth, 15 Vermont, 155; Taggart %: Stanbery, 2 McLean, 543, 649; Vanada's Heirs v. Hopkins's Adm'r, Ac, 1 J. J. Marshall, 2S5, 289. (8) Le Roy v. Beard, 8 Howard's S. Ct., 451, 467. (9) Peck and another v. Harriott and anolhcr. (10) Goodale v. "Wheeler, II New Hampshire, 424, 429. (11) Anderson v. Coonley, 21 Wendell, 279, 280 ; and see Scott v. Wells, 6 Watts & Sergeant, 357, 368; Taylor v. Nussbaum, 2 Duer, 309. (12) Huber v. Zimmerman, 21 Alabama, 4S9. BATTY V. CARSWELL: PECK V. HAERIOTT: ETC. 565 public nature. (1) It is an application, also, of the same principle, that when a public office is instituted by the legislature, an implied authority is conferred on the oflBcer, to bring all suits, as incident to his office, which the proper and faithful discharge of the duties of his office requires. (2) It is to be understood, however, that in case of all agencies, whether public or private, this rule proceeds upon a reasonable presumption of the intention of the principal, as manifested and fixed by his acts, and that there can be no im. plication of mediate powers where they have been expressly withheld. Upon this distinction, the case of Fenn v. Harrison, 3 Term, 757 ; S. C, 4 Id. 177, turned : an agent had been directed to procure a bill to be discounted, and upon one trial, it appeared that the principals had expressly refused to endorse it, and it was then held by a majority of the court, that the agent could not authorize it to be endorsed so as to create any liability in the principals ; but upon another trial, where the same evidence was given, with this difference, that when the principals desired the agent to get the bill discounted, they did not say that they would not endorse it, the court were unanimously of opinion, that as the principals had authorized the agent to get the bill discounted without restraining his authority as to the mode of doing it, they were bound by his acts. In like manner, if a principal direct an agent to buy for cash, and give him the money, he cannot pledge the credit of his principal, where it does not appear that the principal had, on prior occasions, authorized the agent to deal on credit, or assented to his doing so;(3) but if an agent be ordered to buy, and be not furnished with funds, he may buy on oredit.(4) But the powers of an agent are strictly circumscribed within the object and purpose for which he is empowered. (5) It has been decided, that a general authority to collect debts, or to pay and receive money, or to make purchases for the principal, does not confer authority to bind the principal by negotiable bills or notes; and that such an authority cannot exist unless expressly con- ferred, or reasonably to be implied from the nature of the business. (6) " The power of binding by promissory negotiable notes," said the court in Paige V. Stone & another, 10 Metcalf, 161, 168, " can be conferred only by the direct authority of the party to be bound, with the exception where, by necessary implication, the duties to be performed cannot be discharged without the exer- cise of such power. To facilitate the business of note-making, and thus affect the interest and estates of third persons to an indefinite amount, is not within the object and intent of the law regulating the common duties of principal and agent ; neither is the power to be implied because occasionally an instance (1) Babcook v. Western Railroad Corporation, 9 Metcalf, 653, 555. (2) Overseers of Pittstown v. Overseers of Plattsburgb, 18 Johnson, 407, 418. (3) Boston Iron Company v. Hale, 8 New Hampshire, 363. (4) Sprague and another v. Gillett and another, 9 Metcalf, 91 ; see Chomqua v. Mason et al., 1 Gallison, 342, 347. (5) Angel v. Pownal, 3 Vermont, 461 ; Administrators of Shattuck v. Wilder, 6 Id., 334, 338. (6) Rossiter v. Rossiter; Webber v. Williams College, 23 Pickering, 302, 304 ; Taber v. Can- non and others, 8 Metcalf, 456, 458; Smith ». Gibson, 6 Blackford, 370; Scarborough v. Rey- nolds, 12 Alabama, 252, 259; Davidson v. Stanley, 2 M. & Gr., 721; see Martin v. Walton & Co., 1 M'Cord, 16; Emerson et al. v. The Providence Hat Manufacturing Company, 12 Massa- chusetts, 237, 242, and Tappan v. Bailey and others, 4 Metcalf, 629; Denison v. Tyson, 17 Vermont, 550, 555; see, however, Laget et al. v. Gano, 17 Ohio, 466. 566 APPOINTMENT AND POWERS OF AGENTS. occurs, in whioli a note so made, should, iu equity, be paid. "(1) In Savagev. Rlx et al., 9 New Hampshire, 263, 266, the rule is stated to be, that the authority of a special agent appointed to do a particular act, must be limited to that act, and to such acts as are necessary to the performance of it ; and it was therefore held that a committee appointed by a town to repair a highway, for which an appropriation was made, had authority to pledge the credit of the town for payment, but not to bind it by negotiable notes. And it is a settled prin- ciple that the most general powers expressly conferred upon an agent, are to be limited in their exercise to the business or purpose for which the agency is created. This is illustrated by the case of Rossiter v. Rossiter, in which an agent or attorney appointed to settle an estate was authorized, imiera/ia, to do any and every act in the principal's name, which the principal could do in person, which was held not to enlarge the powers of the agent beyond what were necessary for the set- tlement; and other cases(2) are to a similar effect. In like manner, if one be appointed, by express grant of authority, general agent of a manufacturing company, his powers, though general, must be limited by the duties to be per- formed and the business to be transacted; (3) and he will have power, therefore, to give negotiable notes of the company in payment of work done or articles furnished for the benefit of the company ;(4-) but not to transfer by deed, the real estate of the company ;(5) nor to pledge or mortgage the machinery to raise money for the company. (6) [So, too, the duty of a cashier of a bank being to attend to present or passing events, and not to give information about past ones; his statement to a person who inquired, that a certain note had been paid, was held not to bind the bank.] (7) And where a person, engaged in grocery business, announced by public advertisement, that another was his "duly authorized agent, in the purchase of goods and everything appertaining to his business in the mercantile line," it was held, that the agent had authority to bind his principal by any contracts necessary or customary in the conduct of the trade, and thereby to make bills and notes in the principal's name, in pay- ment of engagements in the course of business; but that this authority was restricted to such bills and notes as derived consideration from liabilities in the course of trade, or were used for the convenience or necessities of the business ; and, therefore, that the agent was not empowered to make bills or notes for the accommodation of third persons. (8) And, on this account, it is a universal principle in the law of agency, that the powers of the agent are to be exercised for the benefit of the principal only, and not of the agent or of third parties. (1) And see Wood u. Gooderidge, 6 Cashing, 117, and Bee Stoddard v. Mollvaine, 1 Rich- ardson, 525. (2) Wood V. McCain, 7 Alabama, 801 ; Scarborough v. Keynolds, 12 Id., 252; and Bearing v, Lightfoot, 16 Id., 28j see, also, Rogers and Wife v. Cruger and others, 7 Johnson, 557, 583, and Taylor v. Harlow, 11 Barbour, 235, where the general principle is admitted, though in the last case, the application, if anything, is in extension of it. (3) Odiorne et al. c. Maxey et al. (4) Frost V. Wood, 2 Connecticut, 23 ; Bates v. Keith Iron Company, 7 Metcalf, 225. (5) Storr i>. Wyse, 7 Connecticut, 214, 219. (6) Despatch Line of Packets i'. Bellamy Man. Co., 12 New Hampshire, 206,229. (7) FranUlin Bank r. Steward, 37 Maine, 519, and see Shriver r, Steevens, 12 Penua. State, 2JS; Cunningham v. Cochran, 18 Alabiima, 479; but seo, also, Harrisburg Bank v. Tyler, 3 W. & S., 373 ; and Thnrappon i'. Eell. 10 Exoh. 9, and American note. (8) Bank v. Johnson, 3 Richardson, 42. BATTY V. CARSWELL: PECK V. HARRIOTT: ETC. 567 A power to do all acts that the principal could do, or all acts of a certain description, for and in the name of the principal, is limited to the doing of them for the use and benefit of the principal only, as much as if it were so expressed. (1) A power, therefore, in the most general terms, to draw and endorse bills for and in the name of the principal, will not authorize a drawing or endorsing in his name for the accommodation of third persons, (2) or of the agent ;(3) and this principle is illustrated in the case of partnership : see supra, p. 407 : [nor will it authorize drawing otherwise than rightfully ; e. g., it will not authorize drawing upon persons who have no funds, and who could not be expected to accept.] (4) A power in the most general terms to do all and everj- thing that the agent may think proper in any business the principal may be concerned or interested in, will not authorize the agent to pledge the property of the principal for his own debt, (5) The most guiding principle in the con- struction of powers, is to be derived from a consideration of the purpose which the agent, or other depositary of power, is appointed to accomplish. It will be seen, from some of the foregoing oases, that there may be an agency of the most general nature, created by the express and special appoint- ment of the principal; that is, an authority to transact all the business of the principal, or to do all acts of a particular kind at the discretion of the agent. But in the legal principles applicable to them, there is no difference between such agencies, and express agencies of the most limited kind. In all of them alike, the power of the agent depends upon a legal construction of the language of authorization, regard being had to the purpose of the appointment, and other legal circumstances ; and no power can be exercised by him but such as it was intended by the principal, according to the expression of that intention in the authorization, should be exercised by him. Or, as it has been expressed by a respectable court, " An attorney in fact cannot bind his principal beyond the power delegated to him; and whether an authority of this description be con- sidered general, as contemplating the execution of a variety of acts, in contra- distinction to a special power to do a particular act, the construction must be the same. In either case, the principal is not bound unless the act done be within the scope of the power."(6) Every express agency is spea'oZ, according to the legal signification of that word ; and the only reasonable distinction is between express and implied. II. Implied agency. The other range of cases is, where, the principal is bound by the act of the agent beyond what he intended to be, and beyond or against the express instructions which he had given to the agent. And of this kind, there are two classes which may be noted. 1. The case of what is pro- perly called a general agency, that is, an authority implied from a dumber of (1) Stainer v. Tyseu, .3 Hill's N. T., 279, 281 ; North River Bank v. Aymar, Id., 263, 266. (2) Nichols V. State Bank, 3 Terger, 107; Wallace v. Branch Bank at Mohile, 1 Judges' Alabama, u65; St. John v. Redmond, 9 Porter, 428; The Planters' Bank v. Cameron et al., 3 Smedes & Marshall, 609, 613; The Exchange Bank v. Monteath, 18 Barbour, 171. (3) Suckley v. Tunno & Cox, 1 Brevard, 257; S. C, 2 Bay, 605; Siainback v. Bank of Vir- ginia, 11 Grattan, 279. (4) Stainback v. Read & Co., 11 Grattan, 287. (i) Hewes v. Doddridge, &a , 1 Robinson's Virginia, 143 ; see, also, Jones ». Farley, 6 Green- leaf, 226, Ac. (6) St. John .t). Redmond, 9 Porter, 428, 431. 568 APPOINTMENT AND POWERS OF AGENTS. nets, previously authorized or ratified, which will enable the apeut to exceed or violate particular directions, and to bind the principal to the extent of the acts which have been usually allowed, or are usually incident to the relation in which the person is placed. 2. The case of a power expressly vested in an agent, with private instructions as to the purpose for which, or the extent to which, or the manner in which, it is to be exercised; where, upon the distinc- tion between a power vested, and instructions as to its exercise, an act may be a fraudulent execution of the power as between the agent and principal, and a valid transaction as between the principal and the third party. All these are cases of imjylie J agency, created by the conduct or acts of the principal; and they proceed upon the ground, that if one holds another out to the world and accredits him, as his agent, he is bound by that person's acts done within the scope of the credit thus given to him. In cases of this kind, the question is not what power was intended to be given to the agent, but what power, a third person dealing with him, had a right to infer from the conduct of the principal, that the agent possessed; Johnson v. Jones, 4 Barbour's Supreme Court, 369, 373. 1. If a man has usually, or frequently, employed another to do certain acts for him, or has usually ratified such acts when done for him by that person, the person becomes, by such employments or ratifications, his implied, or gene- ral, agent to do such acts. The true nature of a general agency, in this sense of the term, is stated by Lord Ellenborough in Whitehead v. Tuckett, 15 East, 400,408; "Much of the argument in this case," he observed, "has turned upon the question whether Sill & Co. were invested with a general authority to sell the sugars ; when that question is discussed, it may be material to consider the distinction between a particular and a general authority ; the latter of which does not import an unqualified authority, but that which is derived from a multitude of instances; whereas the former is confined to an individual in- stance." A general agency, therefore, in this, which is the most proper, sense of the term in our law, is an implied authority derived from a course of deal. ing, or from a number of acts of a particular kind, authorized or assented to. Such a general authority enables the agent to bind the principal, without orders, in dealing with those who have no notice of the want of lawful power in the agent, and who act without collusion. (1) In i\Junn v. Commission Co., 15 Johnson, 44, D,, the agent of a company, was authorized by the by-laws to make advances of money, on goods consigned or deposited, but in the present case he accepted a bill for accommodation, on a promise to consign rum : but " it was proved that D. had accepted a number of bills, in the same manner as the one in question, which were regularly paid by the company," (p. 47) : and the Court said (p. 54), that, "the by-laws of the corporation have been produced, and they certainly do not confer on the agent the power of accepting bills, on an expected delivery of goods. But it was proved that D. was the general agent of the defendants, and that he was in the habit of accepting bills, which the company, afterwards, paid, under the like circumstances :" and (1) See 'WiUiams et al. v. Mitchell, 17 Massachusetts, 08; Hooe et al. v. O.tley & HaDcock, 1 Washington, 19; Wilkins v. The Commercial Bank of Natchez, 6 Howard's Mississippi, 217, 221 ; St. John v. Redmond, 9 Porter, 428, 432; Stothard v. AuU & Morehead, 7 Missouri, 318 ; Walsh et al.t,. Pierce, 12 Vermont, 130, 138; Dows v. (jreen, 6 Barbour, 77; Sohimmelpennioh et al. V. Bayard et al., 1 Peters, 204, 290. BATTY V. CAESWELL: PECE: v. HARRIOTT: ETC. 569 accordingly, upon the distinction between a general and special agency, they held the acceptance to be binding on the company. So in Tradesmen's Bank V. Astor, 11 Wendell, 87, 90, where several persons, jointly interested in a con- cern, agreed, by articles among themselves, that no one should be bound by the acts or contracts of another, it was held, that where one acted as the general agent of the company, all were bound by his acts. In like manner, in Johnson V. Jones, 4 Barbour's Supreme Court, 369, 372, where an agent had been per- mitted to purchase goods upon credit, and to give the defendant's notes for them, and some of these notes were paid by the defendant without objection, and the principal, before the purchase in question, had instructed the agent not to sign his name to any paper, but if he wanted goods to send to him, the defendant, for them, yet without affirming that the agent had exceeded his authority in making the purchases and giving notes in the principal's name, it was held that these instructions must be considered as private restrictions upon q^eneral agency, and as not affecting a person who dealt with the agent in ignorance of them, and that the principal was liable upon a note given in his name by the agent for goods purchased. In M' dure v. Richardson, the defendant, a planter of cotton, owned a boat which he used for carrying cotton ; <' his habit being to use his boat to carry his own cotton, and occasionally, when he had not a load of his own to take his neighbours' ;" on the present occasion, the defendant had given the master orders to carry the cotton of two other per- sons, wliich he did; a third person, the plaintiff, while the boat was on the passage, delivered cotton of his to the master to carry ; it was decided that the owner of the boat was liable for the loss of the cotton by the negligence of the hands : " If the defendant had previously employed his boat," said the court, " for his own purposes exclusively, it could not have been fairly inferred that the agent could do what his employer had never done : but his employer had used his boat in some measure for the community in which he lived, and from his course of dealing with it, had held himself out as a common carrier." In Eagle Bank v. Smith, 5 Connecticut, 71, 74, it was held that one who had been a clerk for several years in the store of the defendants, and in many instances had done business with the plaintiffs, was the general agent of his employer, within the scope of that business. A general agency may be created even by the frequent payment, with knowledge, of notes to which the payer's name has been forged. (1) The principle of general agency appears to be applicable to every species of business that can be done by agents. (2) If one act generally as deputy of the sheriff, with the sheriff's knowledge and consent, the sheriff is liable for his official acts, even if he has given him no regular authority. (3) This general principle, that if one treat another as his agent, and thereby induce others to deal with him as such, that person becomes his agent de facto, and as such may bind him without any legal appointment, is strikingly illustrated in the case of Despatch Line of Packets v. Bellami/ Man. Co., 12 New Hampshire, 206, 223 ; it was there held, that a director of a private corporation, elected by a vote of the company, is an agent of the company for the management of its affairs or (1) Weed V. Carpenter, 4 Wendell, 219. (2) See Wilkins v. The Commercial Bank of Natchez, 6 Howard's Mississippi, 217, 221. (3) Bosley v. Farquar, 2 Blackford, 62, 67 ; see, also, Minor at al. v. The Mechanics' Bank of Alexandria, 1 Peters, 47, 70. 570 APPOINTMENT AND POWERS OF AGENTS. some of them ; and that if a corporation elect a director, and permit him to act as such, though by the by-laws he be not legally eligible, they hold him out to the world as a director, or agent, having all the powers of an agent of that description, and to be trusted as such ; and that those who deal with the cor- poration through him, have only to inquire what powers directors have, and what acts the corporation has authorized them to do. Another remarkable application of the principle will be found in The Merchants' Bank of Macon V. The Central Bank of Georgia, 1 Kelly, 418, 431. There is a class of cases which proceed upon a similar principle, and recog- nise the general rule, that if one place a person in a certain official position in relation to himself, or employ a professional agent, and give him but a limited power, he may yet bind his principal, to the extent of the power usually inci- dent to the relation in which he is placed. Thus if a man direct his servant to do some act, or empower a factor, broker, or auctioneer, to act for him, and limit his authority by particular instructions, such agent still has power to bii^ the principal to the full extent of his usual authority in dealing with those who have no notice of the limitation. (1) " Where a person is engaged in a partic- ular department of business, and is employed to do an act within his line, with special restrictions, there the general powers derivable from the nature of his ordinary employment, will control the limitation ; he will be held to possess such in the particular instance, as his ordinary occupation fairly imports to the public. But in the absence of any such implication of general power, the limitation will control. Thus, in the case of a factor, or servant of a horse- dealer in the habit of making sales, if the factor or servant should be specially instructed in a given instance, the instructions would not be binding [in relation to third persons] if in conflict with the general authority derivable from their occupations. But if a person who had no such general character should be employed to do a particular act, such as sell a lot of goods, horse, &c., and in respect to which his power is specially limited, there, if he exceed the limita- tions, his principal will not be bound :" per Nelson, C J., of New York. (2) In Arnold v. Halenhake, 5 Wendell, 83, it was held that a broker, factor, or commission-merchant has power to sell any goods consigned to him in the line of his business, though he may exceed his instructions ; because, as it is his business to sell all goods entrusted to him, there is in the act of sending them to him, an authority to sell ; but that this does not apply to any man whose business or profession is not to sell all goods sent to him ; and that a boatman or common carrier has therefore no implied authority to sell goods entrusted to him to carry, though it may be the usage for such carriers to sell when in- structed (3) This principle, however, ought to be applied with caution. There can be no doubt that if a man expressly empower, or by a course of (1) See Nickson v. Brohan, 10 Modern, 109. (2) In Sanfoi'd v. Handy, 23 Wendell, 260, 266 ; and see to the same effect, per Ashhurst, J., in Penn v. Harrison, 3 Term, 757, 760; and per Bailey, J., in Pickering v. Busk, 16 East, 38, 45; and per Eldon, C, in Bank of Scotland, App. v. Watson, Kes., 1 Dow, 40, 44; see, also, Andrews v. Kneeland, 6 Cowen, 354; Gibbs v. Boies & Linsley, 13 Vermont, 208, 214; Lobdell V. Baker, 1 Metealf, 193, 202 ; Baussatt v. Lippincott and another, 6 Sergeant A Rawle, 386, 393. (3) See Bapp v. Palmer, 3 Watts, 178 ; and see Lord EUenborough's remarks in Pickering V. Bu=k, 15 East, 38, 43. BATTY V. CARS WELL: PECK V. HARRIOTT: ETC. 571 dealing accredit another, as his auctioneer, broker, or factor, or other profes- sional agent, and privately restrict his powers, the agent may bind him to the extent of his usual professional agency ; and sending goods to such a person without directions of any kind, is a presumption of an authority to deal with them according to the course of the agent's usual business. But if the owner has not empowered the party at all as his agent to sell, either by a special authority, or by a previous general agency, and sends goods to a broker or auctioneer, for another purpose than sale, and with such directions as exclude an authority to sell, there is no case which says that the bailee may sell; and it is believed, that no such principle exists in the common law.(l) [A striking restriction of the powers of an agent was made in the New York Court of Appeals, in the important and very interesting case of The Mechanics' Bank of New York v. The New York and New Haven Railroad Company, (not yet, 1856, reported); the case of the Schuyler Frauds. The capital stock of, this last company, by its charter, was divided into a fixed number of shares. The stock having all been subscribed for, and the capital duly paid in, certifi- cates for these shares were issued in the ordinary way to the shareholders. Mr. Schuyler was appointed the treasurer or transfer agent of the company ; and had possession of the transfer books, of the books of blank certificates and of the corporate seal. The stock having become what is known as a " spec- ulative" one, immense sales of it were daily made on the exchange ; the certi- ficates of the selling owner were constantly surrendered on his sale, and new certificates under the company's seal and ordinary attestation, delivered to the new purchaser or his broker. No purchaser ever thought of looking to see, when he received his certificate, whether it was an exact replacement of former stock, and whether the stock in the market could be all traced up with regu- larity, to the first issues of company, when the exact charter number were sent forth. There was no ground to suspect over-issues of this stock, more than to suspect over-issues in any other corporation. Such an inquiry would undoubt- edly have been vain ; and an investigation, with any prospect of success, im- possible, for the stock was daily and hourly transferred ; masses of it being constantly disintegrated ; small parcels of it being as constantly aggregated, and the whole body having been in a state of circulation, so active as to approach to fusion. The certificate, sealed and attested, was the only evidence to which any person either thought of looking, or practically could look. In this condition of things, Schuyler, the transfer agent, then standing forth and recognized to the world in this capacity, fraudulently issued certificates for a number of shares, these shares being over and above the charter number. This spurious stock was sold and transferred exactly like the genuine. The fraud was finally discovered, and the question of the company's liability for .," it is equally valid if it be placed by the name of the agent, " For A. B., C. T>. (l. s.) "(5) But if the instrument in the granting part of it, be in the name of the agent only, it will not become the deed of the principal by being signed and sealed " C. D., attorney to A. B. ;"(6) and where a deed of conveyance purported to be " between A. H., attorney in fact for C. H.," and the party of the second part, and witnessed " that the said attorney in fact A. H." conveys, and concluded " In testimony whereof, the said 0. H. hath set his hand and seal," and was signed " A. H." and seal ; it was decided not to be the deed of the principal and to pass no in- terest j(7) In Martin v. Dortch, 1 Stewart, 479, a sealed note, "I promise to pay," &c., " witness my hand and seal," " D. H. (seal) for J. H., T. B., J. (1) See Hale v. Wooda, 10 Id., 470. [In Carter v. Doe, &c., 21 Alabama, 81, the deed was between A. and B. of the first part, {B. not being styled agent or attorney^) and C. of the second. It recited a power of attorney from A. to B. to do the act which the deed professed to do. The granting part was by A., **hy Ms attorney," B., (B. nowhere himself granting,) and concluded, In witness whereof, " the parties" have hereunto, Ac. Signed, B., "Attorney in fact for A." The Court laboured in its decision. It admitted fully and enforced the doctrine of Combe's Case ; but considered that A., the prineip.al, being made the grantor, and it being there a clear intention to bind him as party of the first part, the seal which purported to be the seal of "the parties," was to be considered his seal, though it might be the seal of the other party, the agent B., also; it being " well settled that one seal" may be adopted by any number of persons." This construction they would make "k^ res mages valeat quam pereat."1 (2) Savings Bank v. Davis & Center, 8 Connecticut, 192 ; see Despatch Line of Packets v. Bellamy Man. Co., 12 New Hampshire, 20R, 230. (3) Pitman v. Kintner, 5 Blackford, 251. (4) Wilks and another v. Back, 2 Bast, 142; Mussey ti. Scott, 7 Gushing, 217, where Wilks V. Back is said to have "always been regarded as rightly made." (6) Wilburn v. Larkin, .3 Blackford, 55. (6) Copeland v. Mercantile Ins. Co., 6 Pickering, 198, 203. (7) Martin v. Flowers, 8 Leigh, 158 ; and see ElweU i;. Shaw. 606 ESECUTION OF DEEDS BY AN ATTOENET. W.," was decided to be the engagement of the principals; but in Skinner v. Ganns, 9 Porter, 305, 307, it was held that a bill of sale stating that " I, J. H ," convey, and "I warrant," &c., and signed "J. H. (seal) attorney for L. S.," though the execution was sufficient, was not the warranty of the principal, but of the agent personally : these cases proceed apparently upon the dis- tinction, that the " I," in the first case, might be referred to each principal, but that " I, J. H." (the agent's name) could not.(l) In fact, where the execu- tion is simply " G. D. for A. B.," or " C. D., attorney or agent for A. B.," without any express statement whose seal is affixed, the operation of the in- strument as the deed of the principal must depend upon who is the party in the preceding contract; and that may be sometimes a question of nicety. In Deining v. Bullilt, 1 Blackford, 241, 242, it was said, that in determining who are the parties to a deed, as in ascertaining the nature and effect of it, recourse must be had to the whole of the instrument ; and that a bond which sets forth ofc its face, that A. B. as agent of C. D., legally authorized for the purpose, binds the said C. D. to make a title, &c., and is executed " A. B. (seal), agent for 0. D.," is the deed of G. D., provided the authority of the agent be suffi- cient ; for G. D. is here alone bound, and the bond is executed for him by his agent : in such a case, the covenants explain the nature and effect of the signa- ture and seal, and show the intention of the parties; they show that the words, agent, &c., attached to the signature are not merely descriptive, but are inten- ded to explain that A. B.'s execution of the deed was not for himself individu- ally, but for and in the name of him whose covenants are contained in it ; but that if instead of binding C. D., A. B. had obligated himself in the body of the deed, for the performance of the contract by C. D., it would have been the deed of A. B. and not of G. D., notwithstanding the words, agent, &c., attached to the signature and seal. In like manner, in Hunter's Adm'rs v. Miller's Ex'rs, 6 B. Monroe, 612, 620, an instrument was described in the caption as " Arti- cles of agreement, &e., between F. M. of the one part, and W. S. H., agent for T. T. and M. H.," and was sealed " W. S. H. (seal), for T. T. and iM. H.," but in the body of the instrument stated that the principals were to convey, &c. ; and it was decided not to bind the agent ; and the Court laid down the following very reasonable rule, that " if it clearly appears on the face of the instrument, who is intended to be bound, and if the mode of execution be such as that he may be bound, the necessary consequence of the universal principle applicable to contracts is, that he is bound, and that if such appears to be the intention of the parties, he alone is bound." So in Male v. Woods, 10 New Hampshire, 470, the court said that the deed of an attorney, to be valid, must be in the name, and purport to be the act and deed, of the principal ; but whether such is the purport of an instrument, must be determined from its general tenor and not from any particular clause. In that case, the terras of the conveyance were " I, Daniel King, as well for myself as attorney for Zacha- riah King, doth formyself and the said Zachariah, remise, release, &c., all the estate, &o., of me, the said Daniel and said Zachariah, which we now have, &c., in said premises. And we, the said Daniel and Zachariah, fir ourselves, our heirs, and executors, covenant, .fee. :" " In witness whereof we, the said Daniel for himself, and as attorney aforesaid, have hereunto set our hands and seals, &c.," signed 'Daniel King' and 'Daniel King, attorney for Zachariah King, (I) See Stringfellow & Hobson v. Mariott, 1 Alabama, 673, 576. ELWELL V. SHAW: N. E. M. I. CO. V. DE WOLF. 607 being duly authorized as appears of record,' with seals affixed to each signature. But the court held that the covenants were clearly the covenants of the princi- pal ; and they thought, from the terms used, that the grant purported to be the act of the principal; the grant is for said Daniel and Zachariah of all the in- terest we now have in the premises ; and that if these terms, together with the covenants, purport a conveyance of the interest of the principal, the execution of the deed would seem to be sufficient to effect the intent of the instrument. In like manner, in Varnum, Fuller & Co. v. Evans, 2 McMullan, 409, the principle was admitted, that a deed which purports to be the act of the agent, does not bind the principal; but it was decided that where the attorney recited the power of attorney, and said, " I, the said W., attorney and agent as afore- said, &c., by virtue of the authority vested in me as aforesaid, &c., in the name and in behalf of the said V., F. & Co. (and others) do hereby accept the pro- visions in the said assignment, &c., and do further release and discharge, &o. ;" executed "J. W. (l. s.) attorney for, &c.," and "J. W. (seal) agentfor, &c. ;" the execution was a compliance with the rule which requires a deed executed by one as attorney to be sealed and delivered in the name of the principal, as it purported to be by the authority, and in the name, and in the behalf of the principal. (1) As to the operation as against the principal, of a deed executed by an attor- ney not in the principal's name ; if the act be of an executed nature, as the transfer of an interest, the deed is merely inoperative and void, and if a deed was necessary to the transfer, or if the agent was only authorized to convey by deed in his principal's name, as in the case of an attorney appointed to convey the land belonging to the principal, the transaction is a nullity ;("2) but where it is not necessary to the execution of the agency, that the transfer should be by deed in the principal's name, and the act is done in such a way as would have been valid if the authority and its execution had not been under seal, there the execution by instrument under seal in the agent's name, may take effect as a transfer not under seal, if there be a parol ratification express or implied. Where an agent appointed to sell chattels, executed a bill of sale under seal in his own name, it has been held that though, not being the deed of the princi- pal, it did not transfer the property by its own operation, yet parol evidence might be given of the transfer, and of the receipt of the money, by the agent of the principal ;(3) and where an agent authorized by parol to sell a slave, exe- cuted a bill of sale with a warranty of soundness, under seal, and the principal received the purchase-money, it was decided that the warranty, as matter in parol, would bind the principal; "and we entertain no doubt," said the court, " but the bill of sale might be looked to by the jury, not as the deed of the plaintiff, and therefore binding on him, but as evidence, or the admissions of the agent at the time of the sale, to ascertain the terms of the contract." (4) In Evans V. Wells, 22 Wendell, 325, 340, 343, Verplank, Senator, whose opinion (1) See, also, Rantin v. Robertson, 2 Strobhart, 366; and see Shanks et als. v, Lancaster, 5 Grattan, 112, 118. (2) Frontin t;. Small, 2 Ld. Raymond, 1418; Lessee of Jenisha Hatch t'. Barr, 1 Hammond, 390; Locke 1'. Alexander, 1 Hawks, 412; Martin d. Flowers, 8 Leigh, 158; Elwell d. Shaw. (3) Falls and Caldwell v. Gaither, 9 Porter, 606, 617. (4) Cooke «. Campbell & Smith, 13 Alabama, 286, 289; see also Ferris & Hampton v. Martin, 10 Humphries, 498. 608 EXECUTION OF DEEDS BY AN ATTORNEY. was sanctioned by the Court of Errors, inclined to the opinion that, generally, where the transaction does not require for its validity a sealed instrument, the informally executed deed may take effect, as a simple contract of the principal, if the intent to bind him be apparent ; but see Cummins, dsc. v. Cassily, 5 B. Monroe, 74, 75. But it is believed that an irregular execution under seal, can take effect as a parol transaction, only, where there is a ratification express or implied, of the act as it has been done ; and that an authority to act by deed in the principal's name cannot, of itself, give validity to any execution by parol, or in the agent's name.(l) In case of a contract made for a corporation, by an authorized agent, and executed under his own hand, a series of cases decide that he is not liable personally on the sealed instrument, and the corporation is liable in assumpsit, because the agent's seal is not a seal in respect to the corporation. (2) In equity, however, on the ground of aiding a defective execution of powers, relief is given in cases where deeds are, by mistake, sealed and delivered in the name of the attorney instead of the principal. An agreement under seal by an attorney for a principal, inoperative at law for want of a formal execution, in the name of the principal, is binding in equity, if the attorney had authority ;(3) and a conveyance, which by being executed in the name of the attorney, trans- fers no interest at law, will be sustained in equity as an agreement ;(4) and will be good against the principal, and subsequent lien creditors; (5) and sub- sequent purchasers with notice. (6) ; With regard to the inoperativeness of covenants by the other party to the deed, which are in consideration of an estate intended to be conveyed, or cove- nants intended to be entered into, by the principal, but not effective from want of legal execution, or from a want of authority in the agent, see the numerous cases cited below. (7) With regard to the personal liability of the agent. If a deed contain cove- nants in the name of the principal, and not the agent, or be clearly intended to bind the principal only, but is executed in the agent's name, the agent is not liable upon the deed ; for a deed cannot bind a person sealing it, unless it (1) See Hunter v. Parke, 7 Meeson and Welsby, 322, 345. (2) Randall v. Van Veehten, 19 Johnson, 60; M'Donough v. Templeman, 1 Harris k John- son, 156; The Bank of the Metropolis u. Guttschlick, 14 Peters, 20, 29; Dubois v. Delaware, and Hudson Canal Company, 4 Wendell, 285, 288; Damon v. Granby, 2 Pickering, .346, 353; and see Bank of Columbia o. Patterson's Adm'r, 7 Cranch, 299, 304, and Brockway v. Allen, 17 "Wendell, 40 ; but some doubt is thrown on this in Hopkins v. Mehaffy, 11 Sergeant & Eawle, 126. (3) Vanada's Heirs v. Hopkins's Adm'rs, Ac, 1 J. J. Marshall, 2S5, 296; Banks et al. ». Sharp, Ac., 6 Id., 180, 181 ; Johnson, &,a., v. Johnson's Heirs, Ac, 1 Dana, 364, 368; Salmon V. Hoffman, 2 California, 142. (4) Salmon v. Hoffman, 2 California, 142. (5) Welsh V. Usher and others, 2 Hill's Chancery, 166; Pensonneau v. Bleakly, 14 Illinois, 15. (6) Martin v. Flowers, 8 Leigh, 168, 162. (7) Moore, 70, pi. 171 ; Prontin v. Small, 2 Lord Raymond, 141S ; Berkeley v. Hardy, 5 Earnewall & Cresswell, 365; Fowler v. Shearer, 7 Massachusetts, IJ, 19; Bellas ii. Hays, 5 Sergeant & Rawie, 427, 438 ; Stetson v. Patten et al., 2 Greenleaf, 368 ; Townsend v. Hubbard 4 Hill's N. Y., 351 ; Boj:art v. De Bussy, 6 Johnson, 94; and the questionable distinction taken in Spencer v. Field, 10 Wendell, 87 ; see also Potts v. Rider, 3 Ohio, 70 ; Pryor i>. Coulter, 1 Bailey, 517. ELWELL V. SHAW: N. E. M. I. C 0. V. D E W L F. 609 contain words legally expressive of an intention on his part to be bound ;(1) and, in like manner, when a deed is made and executed in the principal's name by an attorney having no authority, it is not a deed binding the attor- ney. (2) But if one covenants in his own name, though it be expressly in aufer droit, and in a representative capacity, as executor, guardian, trustee, commit- tee, agent, or otherwise, he is himself personally bound. (8) So persons enter- ing into a submission lay bond to arbitration, on behalf of infant heirs, are themselves personally liable for its non-performance. (4) In Edings v. Brown, I Richardson, 255, covenant was brought for a breach of a covenant of war- ranty of soundness, contained in a bill of sale, by the terms of which "Catha- rine Brown per R. E. Brown, Trustee," conveyed and covenanted, &c., the bill being executed, " Catherine' Brown (l. s.). Per R. E. Brown, Trustee," the woman being a feme covert, and it was held that the trustee was liable, for where an irresponsible person covenants by another, the party by whom the covenant is made is liable. In Thayer v. Wendell, 1 Gallison, 37, however, a deed purported on its face, to be made by one as executor, and the covenants were " in my capacity as aforesaid, but not otherwise, I do covenant," and it was held by Story, J., to create no personal responsibility, as the intention not to be personally bound was clear : but this seems to be a mistake ; for the per- son certainly covenants, and his stating the capacity in which he does the act, cannot undo the act : it is admitted that if he had said merely " in my capa- city as executor, I covenant," the legal operation of these words would be to bind him personally; the addition of the words "not otherwise," therefore, makes the covenant, in legal operation, "not otherwise than personally." To the rule, that an agent, covenanting in his own name and affixing his own seal, is personally liable, the case of a public officer, acting in the course of offi- cial employment, on behalf of the government, or public, is a recognised excep- tion. " Where a public agent," says Marshall, C. J., in Hodyson v. Dexter, 1 Cranch, .^45, 363, " acts in the line of his duty and by legal authority, his contracts made on account of the government, are public and not personal. They enure to the benefit of, and are obligatory on the government, not the officer. A contrary doctrine would be productive of the most injurious conse- quences to the public, as well as to individuals. The government is inca- pable of acting otherwise than by its agents, and no prudent man would con- sent to become a public agent, if he should be made personally responsible for (1) Hopkins ti. Mehatfy, 11 Sergeant k Rawle, 126; Catlin v. Ware, 9 Massachusetts, 218, 220; Townsend u. Corning, 2.S Wendell, 436, 440; Stanton u. Camp, 4 Barbour's Supreme Court, 275, 277 ; Grubbs ti. AViley, 9 Smedes A Marshall, 29; Underbill et al. v. Gibson et al.. 2 New Hampshire, 352, 354; Abby v. Chase, 16 Cushing, 56. (2) Stetson v. Patten et al., 2 Greenleaf, 368 ; Harper et al. i. Little, Id., 14 ; Delius et al, V. Cawthorn, 2 Devereux, 90. (3) Appleton v. Einks, 5 East, I4S; Sumner, Adm'r, !•. William? et al,, 8 Massachusetts, 162, 209, 212; Donahoe v. Emery and another, 9 Metcalf, 63, 66 ; Duvall v. Craig, 2 Wheaton, 46, 56, and note; Jordan h. Trice, 6 Yerger, 479; Sterling d. Peet, 14 Connectieut, 245, 252; jrClure 1-. Bennett, 1 Blackford, 189 ; Deming v. Bullett, Id., 241, 242 ; Meyer et al. i. Barker, 6 Binney, 228,234; Taft w. Brewster, 9 Johnson, 334; White c. Skinner, 13 Id., 307; Rathbon ». Budlong, 15 Id., 1, 3; Spencer t). Field, 10 Wendell, 87 ; Stone «. Wood, 7 Cowen, 463; Lutz «. Linthicum, 8 Peters, 166, 177 ; which of course overrule Potta v. Lazarus, 2 Carolina Law Re- pository, 83. (4) Smith u. Van Nostrand, 5 Hill's N. T., 419. VOL. I. — 39 610 EXECUTIOX OF DEEDS BY AN ATTOENET. contracts on the public account." The principle is that he is not liable upon official contracts; but still the question is open whether the engagement was official or personal. A public officer or agent, contracting in his official charac- ter, is not personally liable although he covenant and seal in his own name ; and wherever a contract is made by such a person, on account of the public or government, within his official duty and power, it will be presumed that it is made in official capacity, and that the engagement of the public or govern- ment only is intended to be given, unless a contrary intention be very appa- rent ;(1) and the rule is similar as to contracts not under seal;(2) but if the engagement of the agent was meant to be personal, and not official, and credit was given to him individually and not to the government, he will be liable, both where the contract is under seal and where it is not under seal ; and whether the engagement is personal or official must depend on the intention as inferred from the terms and circumstances of the transaction. (3) [By a " public agent" is meant one who is the agent of the State immediately, or of a county, town, society, school, or other district, or one who derives his pub- lic and official character from the general law and the election of the people of a given district.] (4) With regard to the liability of an agent, in an action on the case, when he has executed a deed without authority, it is settled that to sustain such an action, there must be fraud in the agent : if an agent discloses his authority, and the parties are misled by a common misapprehension of the law as to the extent of that agency, or act in common ignorance of some fact by which the powers of the agent have been terminated, an action on the case will not lie ;(5) but if an agent corruptly represents that he has authority, knowing that he has not, he will be guilty of fraud ;(6) and assuming to act as agent, without having authority, is prima facie fraudulent, and if the plaintiff show such assumption of agency, the onus jprohandi to rebut the presumption is on the defendant, f 7) To render a deed regularly executed by an agent, the deed of his principal, the authority to execute must be under seal; (8) unless the execution by the (1) TJnwin v. Wolseley, 1 Term, 674; Hodgson v. Dexter; Dawes v. Jackson, 9 Massachu- setts, 490 ; dictum in Sumner, Adm'r, v. "Williams et al., 8 Id., 162, 212. (2) Macbeath «.. Haldimand, 1 Term, 172; Parks v. Ross, 11 Howard's S. Ct., 362, 374; Brown v. Austin, 1 Massachusetts, 208; Walker v. Swartwout, 12 Johnson, 444; Olney v. Wickes, 18 Id., 122; Fox v. Drake, 8 Cowen, 191; Osborne i'. Kerr, 12 Wendell, 179; Adams V. Whittlesey, 3 Connecticut, 660; Perry v. Hide, 10 Id., 330; Syme v. Butler, Ex'r, 1 Call, 105; Brown o. Hatton, 9 Iredell, 319; Tutt v. Lewis's Ex'rs, 3 Id., 233; Tucker v. The Jus- tices of Iredell Co., 13 Id., 433 ; Enloe v. Hall, 1 Humphreys, 303; Ghent v. Adams, 2 Kelly, 214. (3) Powell u. Pinch, 5 Yerger, 446; Sheffield v. Watson, 3 Caines, 69; Gill v. Brown, 12 Johnson, 385 ; Swift v. Hopkins, 13 Id., 313 ; King u. Butler, 15 Id., 281 ; Rathbon . . Bud- long, Id., 1, 2. (4) Ogden v. Raymond, 22 Connecticut, 383 ; and see Tutt v. Hobbs, 17 Missouri, 489. (.j) Jenkins o. Atkios, 1 Humphreys, 294, 209. (6) Delius et al. v. Cawthorn, 2 Devereux, 90. (7) Clark v. Foster, 8 Vermont, 98; see also Roberts ». Button et al., 14 Id., 195, 202. (8) Evans v. Wells, 22 Wendell, 326, 334; Delius et al. v. Cawthorn; Gordon i. Bulkeley, 14 Sergeant & Rawle, 331; Maus t>. Worthing, 3 Scammon, 26 ; M'Murtry & Peebles v. Frank, 4 Monroe, 39, 41 ; Mitchell's & Davis's Adm'rs o. Sproul, 6 J. J. Marshall, 264, 267 ; Rhode v. Louthian, 8 Blackford, 413; Cocke v. Campbell & Smith, 13 Alabama, 286, 288; The Heirs of Piatt and others v. The Heirs of McCuUough, 1 McLean, 69, 82. EL WELL V. SHAW: N. E. M. I. C 0. V. D E W L F. 611 agent be in the presence of the prinoipal;(l) however, if executed without iiu- thority, it may be ratified as the deed of the principal, by instrument under seal ;(2) but as a previous parol authority would be insuflBcient, so a subsequent ratification of the deed by parol or by acts in pais, not amounting to redelivery, will not give it validity as the deed of the principal ;(3) but a parol acknow- ledgment by the principal that the agent had a legal authority to execute the deed for him, would be admissible evidence of such authority, after notice to produce the original power of attorney. (4) But when it is said that acts in pais will not ratify a deed executed without authority, it must be understood, perhaps, of such acts as amount only to evidence of an intention to afBrm,°and not to such as operate by estoppel (see supra.) But where the act done by the agent would be good without seal, and there is a parol authority or ratification, the act will be valid. In Goo2}er v. Rankin, 5 Binney, 613, where an attor- ney, without authority, under seal, executed a release, it was held that though the instrument could not operate as a release, yet it might as a simple contract, if it was on sufficient consideration, and the agent had authority to make such a contract. (5) And, in other cases, it has been held, that where a deed is exe- cuted by an agent without authority under seal, the agreement -evidenced by the deed may operate as a simple contract, if ratified in a way to give validity to a simple contract, though such ratification could not set up the deed. (6) In Hunter v. Parker, 7 Meeson & Welsby, 322, an auctioneer executed, without authority, a deed of transfer of a ship, in his own name, under bis own seal, and this was afterwards ratified by the principal by parol. A slatute of 3'& 4 Wm. IV. required the transfer to be by instrument in writing, and the instru- ment in this case was of such a kind as would have been sufficient if it had not been under seal ; and the Court of Exchequer held that it was sufficient to pass the interest. " It is the deed of the auctioneer," said Park, B., in deliver- ing the judgment of the court, " but it also may operate, by the consent of the principal, as a written transfer from him, as it certainly would have done if there had been no seal to it ; and in order to prevent the instrument from fail- ing in its effect, and -ut res magis valeat quam pereat, we do not feel ourselves precluded from holding that it operates to transfer an interest. If the autho- rity had been by deed to convey by deed, the instrument would have been clearly inoperative for that purpose ; but the authority is by parol : and must be assumed to have been to convey in the form in which it was conveyed : and this we think may be supported." [To like effect, speaks Paige, Judge, in giving the opinion of the Court of Appeals of New York, in Worrall v. ilunn, 1 Selden, 239, "It is," says he, "a maxim of the common law that an autho- (1) Kime v. Brooks, 9 Iredell, 21S. (2) Millikin et als. v. Coombs et ala., 1 Greenleaf, 343. (3) Hanford v. MoNair, 9 Wendell, 64; Wells v. Evans, 20 Id., 251, 25S ; Stetson v. Patton et al. : Boyd v. Dodson, 5 Humphreys, 37 ; Smith et al. v. Dickinson, 6 Id., 261. (4) Blood V. Goodrich, 9 Wendell, 68, 77 ; S. C, 12 Id., 525 ; see Curtis v. Ingham, 2 Ver- mont, 287, 289 ; Despatch Line of Packets v. Bellamy Man. Co., 12 New Hampshire, 206, 231. (5) See also Van Ostrand v. Reed, 1 Wendell, 424, 431 .- and Worrall v. Munn, 1 Selden, 239 ; see also, however, Baker v. Freeman, 35 Maine, 485, a case involving probably the point of pleading. (6) Despatch Line of Packets v. Bellamy Man. Co., 12 New Hampshire, 206, 234 ; Hanford V. MoNair, 9 Wendell, 54. 612 EXECUTION' OF DEEDS BT AN" ATTORNEY. rity to execute a deed or instrument under seal must be conferred by an instru- ment of equal dignity and solemnity; that is, by one under seal. A disposi- tion has been manifested by most of the American Courts to relax its strict- ness, especially in its application to partnership and commercial transactions. I think the doctrine as it now prevails, may be stated as follows, viz : if a con- veyance or any act is required to be by deed, the authority of the attorney or agent to execute it must be conferred by deed; but if the instrument or act would be effectual without a seal, the addition of a seal will not render an au- thority under seal necessary, and if executed under a parol authority or subse- quently ratified or adopted by parol, the instrument or act will be valid and binding on the principal. It is said that the rule as thus relaxed is confined in its application to transactions between partners. But it seems to me that a distinction between partners and other persons in the application of the rule as relaxed and qualified by recent decisions, stands upon no solid foundation of reason or principle."] II. As to instruments not under seal. The case of New England Marine Ins. Co. v. Be Wolf, illustrates the distinc- tion between- sealed and unsealed instruments, and shows that the rule requiring the instrument to be executed, or signed, in the name of the principal, does not apply to instruments not under seal : and the same distinction is expressly stated in Andreios v. Ustes et als., 2 Fairfield, 267. The cases in all the states, in regard to instruments not under seal, agree, that if the name of the principal appear in the instrument, and the intention, on the whole, be apparently to bind him, he will be the party bound, if the agent had authority, although the instrument be signed in the agent's name only.(l) "In an agreement not un- der seal,'' said the chancellor, in the late case of Townsend v. Hubbard, 4 Hill's N. Y., 851, 857, (and see Townsend v. Cornlmj, 23 Wendell, 436, 440,) "exe- cuted by an agent or attorney on behalf of his principal, and where the agent or attorney is duly authorized to make the agreement, it is sufficient, as a gene- ral rule, if it appears in any part of the instrument, that the understanding of the parties was that the principal, and not the agent or attorney, was the per- son to be bound for the fulfilment of the contract. "(2) lu South Carolina, in some earlier oases,(3) this was not admitted, and it had been decided, that a note in the form, " I promise, &c.," signed " J. L. R. for I. I." bound the agent personally, and did not bind the principal; but all these are overruled in Robertson v. Pope, 1 Richardson, 501, and the distinction recognised between deeds and parol contracts, that in the former the sealing and delivery must be in the name of the principal, but in the latter it is enough if it appear, that the contract was intended to be made for the principal. In Kentucky, also, in the earlier oases, it had been decided, (4) that notes beginning, " I promise to pay, &c.," and signed, " For A. B., C. D." or " C D. for A. B.," or " C. (1) Lewis V. Nicholson, 18 Q. B., 501: see Farmers' & Mechanics' Bank v, Troy City Bank, 1 Douglass, 458, 467. (2) See also Evans v. Wells, 22 Wendell, 325, 336, 340; and Pinckney v. Hagadorn, 1 Duer, 96. (3) Fash V. Ross, 2 Hill's So. Car., 294; Taylor v. McLean, 1 McMullan, 352; Moore «. Cooper, 1 Spears, 87. (4) MaeBean v. Morrison, 1 Marshall, 545 ; Patterson, ic, v. Henry, 4 J. J. Marshall, 126; Parks V. S. A L. Turnpike Company, Id., 456. EL WELL V. SHAW: N. E. M. I. C 0. V. D E W L F. 613 D., agent for A,," bind the agent and not the principal; but these cases have been qualified to the extent of allowing parol evidence to show that the agent intended not to bind himself personally, but to execute the instrument or contract as the act of the principal. (1) [However, the question is one of intention as evidenced by legal expression, and where all through the instrument, a lease — the contract was in the name of the agent « for or on behalf of" the principal — and rent was reserved to the agent " for the use of" the principal : and certain acts were not to be done ex- cept by consent in writing of the agent "on the part of" the principal; and other acts were to be done when the lessee should be called on by the agent " on the part of" the principal, and the contract was signed by the agent alone, it was held, properly, that the agent was liable.](2) It will be seen, therefore, from the foregoing note, and from the one that follows, that a distinction exists in the forms of valid contracts, by an agent for a principal, when under seal, when in writing not under seal, and when verbal. A contract under seal, by an agent for a principal, is not binding on the prin- cipal, unless it profess to bind him, and be executed in his name, and as his deed : a written contract not under seal is binding on the principal, in what- ever form made or executed, if the principal's name appear in it, and the inten- tion to bind him be apparent, but not unless his name appear in it : a verbal contract is binding on the principal, if his name is disclosed, and the person making it contract as his agent, and on his behalf. (1) Owings V, Grubbs' Administrator, 6 J. J. Marsball, 31; Webb v. Burke, 5 B. Monroe, 51 ; and are now perhaps to be regarded as quite overruled by Hunter's Ad'rs v. Miller's Ex'rs, 6 Id., 612, 625, and Wright, Ac, v. Roberts, cited Id., 625. (2) Tanner v. Christian, 4 Ellis & Blaokburne, 82 E. C. L., 592. 614 PAROL CONTRACTS MADE BY AN AGENT. OF THE LIABILITIES AND RIGHTS OF ACTION, UPON PAROL CONTRACTS MADE BY AN AGENT FOR A PRINCIPAL. S. &J. RATHBON v. BUDLONG. In the Supreme Court of New York. january term, 1818. [reported from 15 Johnson, 1-3.] An agent who makes a contract on behalf of Ms principal, ivhose name he discloses at the time, to the person with whom he contracts, is not personally liable. There is no difference, in this respect, between an agent for government and for an individual. This was an action of assumpsit on a promissory note, in the follow- ing words : " Ninety days after date, I promise to pay S. & J. L. Rathbon, or order, $302, value received, /or fAe Susquehannah Cotton and Woollen Manufacturing Gompany. "Samuel Budlong, " Albany, June 24th, 1815. " Agent." The defendant gave in evidence a bill of parcels, headed as follows : " The Susquehannah Cotton and Woollen Manufacturing Gompany, bought of 8. tf- J. L. Rathbon," &c., at the bottom of which was the fol- lowing receipt. " Albany, June 21th, 1815. Received payment, by a note payable in ninety days, which, when paid, will be in full of the above." The purchase of the goods and giving the note, were simulta- neous acts. The defendant also gave in evidence a power of attorney from the Company above named, under their corporate seal, authorizing him to purchase and sell goods, &c., and make bargains, &c., draw bills and promissory notes, for them and in their names, and generally to manage the business of the Company, as the defendant should think fit, &c., subject to the control and direction of the trustees of the Com- pany, &c. A verdict was found for the plaintiffs, subject to the opinion of the court, on the case above stated. EATHBON T. BUDLONG: PENTZ V. STANTOlSr: ETC. 615 Foot, for the plaintiffs, contended, that the defendant had made the contract 'personally, and not in the name of his principals. The note was, " I promise to pay," &;c. An agent or attorney cannot draw or sign bills or notes in the name of another, without a special authority for that purpose. Here the defendant had a special power ; but he did not sign the names of his principals. (1) There is no distinction, in this respect, between contracts under seal, and contracts not under seal. Eenry, contra, was stopped by the court; whose opinion was thus delivered. Spencer, J. It is perfectly manifest that the note, on which the suit is brought, was given by the defendant, as agent for the Susque- hannah Cotton and Woollen Manufacturing Company, and that the goods for which the note was given were sold on the credit of that Company. To charge the defendant with the payment of the note, would violate every principle of justice and equity; nor is the law so unjust. The general principle is, that an agent is not liable to be sued upon contracts made by him on behalf of his principal, if the name of his principal is disclosed and made known to the person contracted with, at the time of entering into the contract. This doctrine is fully supported by the case of Owen V. Gooch.(2) In fact, there is no difference between the agent of an individual and of the government, as to their liabilities. The question, in all cases, is, to whom was the credit given ? There are cases of covenants where persons have made themselves personally liable, because they have covenanted and bound themselves under seal, in which cases the principals were either not disclosed, or were not bound, or the agent meant to bind himself personally. In the present case, the credit was not only given to the Company, but they were bound by the note of their agent ; and there is not the least pre- tence to hold the agent responsible. Judgment for the defendant. (1) Combo's Case, 9 Coke, 76 ; Frontin ». Small, 1 Strange, 705 ; S. C, Lord Raymond, 1418; White V. Cuyler, 6 Term, 176; Wilks v. Back, 2 East, 142; Appleton «. Sinks, 5 East, 148; Buffum V. Chadwick, 8 Massachusetts, 103. (2) 2 Bspinasae, 667. 616 PAROL COX TRACTS MADE BY AX AGE XT. PENTZ V STANTON. In the Supreme Court of New York. MAY, 1833. [reported, 10 WENDELL, 271-278.] Where the agent of a manufacturing estallishment bought a quantity of uye-stuffs for the use of the factory, without disclosing the name of his principal, and the lill of goods was made out, " 3Ir. A. B., Agent, bought of," ^c, and he drew a bill of exchange on a third person, signing it A. B., Agent, and the bill was subsequently protested, and on action to recover the price of the goods was brought against the principal ; it was held, that the principal could not be charged as drawer of the bill by his agent, the name of the principal not appear- ing on it, but that the plaintiff was entitled to recover tmder a count for goods sold, the jury being warranted under the facts of the case in saying that the goods ivere not sold on the exclusive credit of the agent. Whether in such case the goods are sold on the credit of the agent or on the responsibility of the principal, whoever he may be, is a question for the jury ; but where that question was not submitted, and a verdict ivas found for the plaintiff, and the court were satisfied of the ulti- mate liability of the principal to the agent, they refused to set aside the verdict. A person may draw, accept or endorse a bill by his agent, and it will be as obligatory upon him as though it ivas done by his own hand ; but the agent in such case must either sign' the name of the principal to the bill, or it must appear on the face of the bill itself, in some way or other, that it was in fact done for him, or the principal will not be bound ; the particular form of the execution is not material, if it be sttbstantially done in the name of the principal. This was an action of assumpsit. The first count in the declaration was on a Lill of exchange for $158.36, bearing date 25th May, 1826. charged to have been drawn by one Henry F. West, by the name and description of H. F. West, agent, he, the said West, then and there being the agent and servant of the defendant in that behalf, according to the custom of merchants. The bill was drawn on one James Carey, payable four months after date, was accepted by Carey, and when due was protested for non-payment, and RATHBON V. BUDLONG: PEJTTZ V. STANTON: ETC. 617 notice of non-payment vsas alleged to have been given to the defendant. There were also the common counts for goods sold and delivered to the defendant and for money lent, &c. The defendant pleaded the general issue, and especially that the bill of exchange counted upon v^fas re- ceived and accepted by the plaintiff in satisfaction of the goods sold ; as to which the plaintiif took issue. On the trial the bill was produced, and purported to be signed H. F. West, agent. A regular protest was shown, and notice of the same addressed to and received by West at Manchester in Oneida county, where West, at the date of the bill, and before and since as the agent of the defendant, superintended a woollen manufactory belonging to the defendant, who resided at Pompey in Onon- daga county, and spent only a portion of his time at the factory. West testified that he was authorized by the defendant to make notes and draw bills of exchange in the name of the defendant, and as agent in his behalf; that the bill in question was given on the purchase by him of a quantity of dye-stuifs of the plaintiff for the defendant, taken to and used in the factory and in the business of the defendant ; that when he called for the goods he proposed to the plaintiff to give him the bill in question, who agreed to accept, and did accept, the same, giving him, the witness, a bill of the goods, headed, " Mr. E. F. West., Agent, bought of W. A. F. Pentz," and receipting the draft at the bottom. He further testified, that he informed the defendant of the drawing of the bill of exchange, and delivered the notice of protest to him, he did not do so until several weeks after he had received it; that the letters relating to the factory business were generally sent to Man- chester, sometimes addressed to the defendant and sometimes to the witness as agent ; and that he always opened them, whether addressed to his principal or himself. It further appeared that the acceptor failed before the bill fell due, and that on the day after the bill was protested the plaintiff addressed a letter to West, complaining that he had suf- fered the protest, as he had been apprised by the acceptor of his inability to meet it. On this evidence, the defendant's counsel insisted that the plaintiif was not entitled to recover ; but the judge below ruled that he was, and so instructed the jury, who accordingly found the amount of the bill, with interest. The defendant moved for a new trial." p. Crridley, for the defendant. The plaintiff was not entitled to recover on the bill of exchange; the name of the defendant did not appear upon it, and therefore no action will lie against him.(l) If the (1) Chitly on Bills, 60, 22, 26, 27; Fenn „. Harrison, 3 Term, 761; Willis v. Back, 2 East, 144; Barlow v. Bishop, 1 Id., 434; 'Vyhite v. Cujler, 6 T. K., 176; 1 Lot., 205. 618 PAROL CONTRACTS MADE BY AN AGENT. bill was good, the notice was not sufficient in not being directed to the defendant and to the place of his residence. Besides, the plaintiff was bound in the first instance to resort to the acceptor of the bill : Jones & Mann v. Savage, 6 Wendell, 658. Nor can the plaintiff recover on the common counts ; the credit was given to West, and not to the defendant. There is no pretence that West made known the name of the defendant ; he represented himself as an agent, but not as the agent of the defendant. The bill of goods was charged to West, and even after the protest, to him the plaintiff looked for payment. J. A. Spencer, for the plaintiff. The defendant is holden to pay the bill of exchange ; it was drawn by his authorized agent, acting within the scope of his authority and for the benefit of the defendant. His signature as agent was enough to authorize the admission of proof of who was the principal. Can it be doubted that a bank would be charged on an acceptance by its cashier, although he should only sign A. B., Cash'r ? The general rule laid down by Mr. Chitty, that no person can be considered as a party to a bill unless his name appear on some part of it, is not supported by the case of Fenn v. i:Iarrison, 3 Term, 760, which he cites, for that was not the case of a bill of exchange drawn by a general agent, as here, but the sale of a bill by a special agent. If, then, the defendant was bound by the act of his agent in drawing the bill, the notice in this case was sufficient, being sent to the place of busi- ness of the defendant ; for whether addressed to the defendant or to his agent was a matter of indifference, notice to the agent being equivalent to notice to the principal. But if the defendant was not liable on the bill, he was on the common counts ; the goods were bought for him and appropriated to his use. It cannot be pretended that they were sold on the credit of the agent, for the bill shows they were charged to West as agent, and he as agent drew the bill — forbidding the conclu- sion that credit was given to him as ■principal. So the pretence that the bill was received in payment is equally unfounded ; why should the plaintiff be required to sue an insolvent acceptor ? By the Court. The plaintiff cannot recover upon the bill of ex- change against the present defendant. His name no where appears upon it. It was drawn and subscribed by West in his own name, with the simple addition of "agent," but without any specification whatever of the name of the principal. Mr. Chitty, in his valuable Treatise on Bills, says, page 22, " It is a general rule that no person can be con- sidered a party to a bill, unless his name, or the nanae of the firm of which he is partner, appear on some part of it ;" and Mr. Justice BuUcr, EATHBON V. BUDLONG: PENTZ V. STANTON: ETC. 619 in Fenn v. Harrison, 3 Term, 761, observes, that in the case of bills of exchange, we know precisely what remedy the holder has, if the bill be not paid ; his security appears wholly on the face of the bill itself; the acceptor, the drawers, and the endorsers are all liable in their turns, but they are only liable because they have written their names on the bill ; but this is an attempt to make some other persons liable, whose names do not appear on the bill. In Siffkin v. Walker & Rowleston, 2 Camp- bell, 308, an action was brought against the defendants upon a promis- sory note given and signed by Walker only. The declaration appears, from the argument of counsel, to have averred that Walker had author- ity to give the note for Rowleston, and that it was given for their joint debt ; and it appeared that the defendants were jointly indebted to the plaintiff, on a charter party of affreightment, and that the note was given by Walker in satisfaction of that debt. Lord Ellenborough non- suited the plaintiff, observing that his remedy was either jointly against both defendants on the charter party, or separately against Walker on the promissory note; and he asked, how can I say that a note, made and signed by one in his own name, is the note of him and another person neither mentioned nor referred to? And he observes further, that the import and legal effect of a written instrument must be gathered from the terms in which it is expressed, and this note must be con- sidered as a separate security for a joint debt. In Emly and others v. Lye and another, 15 East, 6, the action was upon a bill of exchange drawn by one of the defendants (who were partners) in his own name, which was discounted by the plaintiffs, and the money went to the use of the firm ; but it was held that the plaintiffs could not recover, either upon the bill or the money counts. Lord Ellenborough observed that the counts in the bill had been properly abandoned, for unquestionably, on a bill of exchange drawn by one only, it cannot be allowed to supply by intendment the names of others in order to charge them ; and con- sidering it a mere discount or sale of the bill, he also held that there was no joint liability of the defendants for money had and received, and that it was the individual transaction of the partner who drew the bill ; and all the other judges expressed similar opinions. There is no doubt that a person may draw, accept or endorse a bill by his agent or attorney, and that it will be as obligatory upon him as though it were done by his own hand. But the agent in such case must either sign the name of the principal to the bill, or it must appear on the face of the bill itself, in some way or another, that it was in fact drawn for him, or the principal will not be bound. The particular form of the execution is not material, if it be substantially done in the name 620 PAROL CONTRACTS MADE BY AN AGENT. of the princ.ipal.(l) This doctrine is very clearly stated in Stackpole V. Arnold, 11 Massachusetts, 27, and in Arfridson v. Ladd, 12 Id. 173. In the first of those cases, the action was brought upon three promissory notes, executed by one Cook, for premiums upon policies of insurance, procured by him at the request and for the benefit of defendant. Cook acted merely as the factor of the defendant, and intended to bind him by the premium notes ; but the notes did not, on the face of them, pur- port to be signed by Cook on the behalf of the defendant, and he was held not to be liable upon the notes. The parol testimony, explaining and showing the real nature of the transaction, was decided to be inadmis- sible, on the ground that it contradicted or varied the written contract. Judge Parker, in delivering the opinion of the Court, says that "■ No person, in making a contract, is considered to be the agent of another, unless he stipulates for his principal by name, stating his agency in the instrument which he signs." This principle has been long settled, and has been frequently recognized. "Nor do I know," he continues, "an instance in the books of an attempt to charge a person as the maker of a written contract appearing to be signed by another, unless the signer professed to act by procuration or authority, and stated the name of the principal on whose behalf he gave his signature." He also discusses at length the question of the admissibility of parol evidence in such cases, to show the real character of the transaction, and holds it to be utterly incompetent, on the ground which has already been stated. (2) It is well settled, that if a private agent draw a bill or enter into any other contract in his own name, without stating that he acts as agent, so as to bind his principal, he will be personally liable. (3) It is not sufficient, to charge the principal or protect the agent from personal responsibility, merely to describe himself as agent, if the language of the instrument imports a personal contract on his part.(4) But where the name of the principal appears on the face of the instrument or contract, and it is evident that the agent did not intend to bind himself personally, but acted merely on behalf of the principal, if he acted by competent authority, the principal, and not the agent, will be bound. (5) (1) Barlow v. Bishop, 1 East, 434; Wilkg v. Back, 2 Id., 142; S. C, 3 Bspinasse, 266 ; Fron- tin V. Small, 2 Strange, 705 ; Cotnyn's Dig. Attorney, C, 14; Coates t>. Davis, 1 Campbell, 485, 486; Mason v. Ramsey, Id., 384; White v. Cuyler, 6 Term, 176. (2) See also Mayhew v. Prince, 16 Massachusetts, 54, and Meyer v. Barker, 6 Binney, 228. (3) Chitty on Bills, 36, and cases there cited; Le Fevre r. Lloyd, 5 Taunt., 749; Goupy v. Harden, 2 Btarshall, 464; Appleton i'. Binks, 5 East, 148; De Gaillon v. L'Aigle, 1 Bosanquet & Puller, 368; MacBeath v. Haldemand, 1 Term, 181. (4) Thatcher ti. Diusmore, 6 Massachusetts, 299; Foster v. Fuller, 6 Id., 58: Buffum v. Chadwick, 8 Id., 103; Van Reimsdyk v. Kane, 1 Gallison, 630 ; S. C, 9 Cranch, 155. (5) Rathbon t. Budlong, 15 Johnson, 1 ; Owen v. Goooh, 2 Espinasse, 567 ; Mott v. Hicks, 1 EATHBOJSr V. BUDLONG: PENTZ v. STANTON: ETC. 621 The next inquiry is, whether the defendant is liable upon the counts, for goods sold and delivered. West was examined as a witness, and testified that he was the agent of the defendant in carrying on a wool- len manufactory in Oneida county; that the goods for which he gave the bill were purchased for the defendant, and were used in his business of manufacturing ; that he had authority to draw bills of exchange and notes in the name of the defendant; that when he called for the goods in this case, he proposed to let the plaintiff have the draft in question; that the plaintiff said he would inquire about the drawee, and did so, and afterwards received the draft from the witness, and gave the receipt at the bottom of the bill. It does not appear that West disclosed to the plaintiff the fact that the goods were purchased for the defendant. The bill of goods delivered to him was headed, Mr. H. F. West, agent, and the draft which he gave was also signed by him as agent. These are the only circumstances showing the mutual understanding of the parties that West was acting as agent, and not as principal, in the transaction. It was shown that payment of the bill had been regularly demanded of the drawee, and notice of its dishonour regularly given to West, the drawer. This would entitle the plaintiff to resort to the common count as against West, if he were the defendant and it had been a transaction unquestionably on his own account. (1) The question then upon this branch of the case is, whether the goods were sold to West exclusively upon his own individual credit and the credit of the bill which he drew, so as to prevent the plaintiff from all remedy against the defendant, for whom they were in fact purchased, and who has had the exclusive benefit of them. The only additional evidence upon this point, not already averted to, is the letter written by the plaintiff to West on the 29th of September, 1826, advising him of the dishonour of the bill by the drawee, and requesting him to make provision for its payment. I do not think that this is a circumstance of much importance in the case. The communication would of course be made to West, and he would be called on for payment, admitting that he was known and considered by the plaintiff as a mere agent, as a matter of necessity; and it does not appear that the plaintiff knew who the principal was. It was a question for the jury to decide whether the goods were sold exclusively upon the credit of West and of the bill, or not:(2) and it is to be regretted that it was not distinctly left to them by the judge. Cowen, 513, and the cases there referred to in the opinions of the judges; Rossiter v. Kossiter, 8 Wendell, 494. (1) Jones & Mnnn t>. Savage, 6 Wendell, 659, 662. (2) Bsntky o. Griffin, 5 Taunton, 366; Legget v. Reed, 1 Carrington & Payne, 16. 622 PAROL CONTRACTS MADE BY AN AGENT. Upon the evidence, I chink the jury would have been justified in finding for the plaintiff on this point. The plaintiff certainly knew that West was acting as agent for some third person. The bill of goods was made out to him as agent, and the draft which he received was signed by West as agent. It would not be an unreasonable conclusion from these facts that the plaintiff did not repose entirely upon the security and respon- sibility of West, but had regard to the eventual liability of the principal, whoever he might be, if it should become necessary to resort to him. If the plaintiff' should fail in this action on the ground that the credit was given exclusively to West, then no doubt he could recover in an action against West, and it is equally clear that whatever money West may be compelled to pay on this account, would be money paid to the use of the defendant, and which he might recover from him. The de- fendant must eventually pay for these goods, and I see no legal objec- tion to a recovery against him in this action upon the common counts. Motion for new trial denied. DUSENBURY v. ELLIS. In the Supreme Court of New York. JANUARY, 1802. [reported, 3 Johnson's cases, 70-71.J A person who signs a note in the name of another, as his attorney/, without any authority for that purpose, is personally liable on the note, to the party who accepts the note, under such mistake or im- position. In error on certiorari, from a justice's court. Ellis sued Dusenbury, before the justice, on a promissory note. The note was signed by the defendant below, in this manner: "For Peter Sharpe, Grabriel Dusen- bury, attorney." The note was, otherwise, in the usual form, and began with the words, "7 promise," &c. It was contended that the defendant was not liable, having signed the note merely as attorney for Sharp, and he produced his letter of attorney, which, however, appeared to be nothing more than the usual power to collect debts, and contained EATHBON V. BUD LONG: PENTZ V. STANTOX: ETC. 623 no authority to give notes, or bind the principal, in that way. The justice gave judgment for the plaintiff below. Van Antwerp, for the plaintiff in error. Emott, contra. Per Curiam, There can be no question, but that Dusenbury signed the note, without having any authority for that purpose. The letter of attorney could not bind the principal beyond the plain import of it. An authority to collect debts cannot, by any possible construction, be an authority to give notes. The only question, then, is, whether Dusenbury was not personally responsible, as for his own note. On this point we are of opinion, that if a person, under pretence of authority from another, executes a note in his name, he is bound ; and the name of the person for whom he assumed to act will be rejected, as surplusage. The party who accepts of a note, under such mistake or imposition, ought to have the same remedy against the attorney, who imposes on him, as he would have had against the pretended principal, if he had been really bound. Judgment of affirmance. THE UNITED STATES v. JOHN PARMELE. In the Circuit Court of the United States, for the District of Connecticut. APRIL TERM, 1810. [reported from 1 Paine, 252-255.J No action ivill lie in the name of a principal, on a written contract made by his agent in the agent's name, although the defendant may have known the agent's character. This action was brought on a written contract of Parmele, the defend- dant, by which he acknowledged to have received from one Stephen Rainy one hundred barrels of flour, and agreed to be holden therefor to Alexander Wolcott, Esquire, or order, when called for, he paying storage. The property belonged in fact to the United States, in virtue of a seizure and confiscation of it, and this seizure and confiscation were dis- 62-i PAEOL CONTRACTS MADE BY AN AGENT. closed in the declaration. Still, however, the suit was upon contract, and the contract above given, was set forth in form. On demurrer the objection was that on this contract, no action could be sustained by the United States. The counsel for the United States contended that the action was founded not on the written contract, but on the right of propertij, which had vested in the United States by the seizure and condemnation, and that the agreement was set forth only as evidence; and that the interest of the United States, as set forth by the declaration, was sufficient averment of its property to show it to be the ground of suit. They, also, likened the case to that of principal and factor, in which the former can sue on a sale made by the latter, although he be not, at the time, known to the purchaser. Livingston, J. Whether an action on the right which vested in the United States by the seizure and condemnation could have been brought, this Court is not bound to say ; but the present suit is not of that description. It proceeds entirely on the defendant's contract, and the Court, if it cannot discover his liability there, has no right to look for it elsewhere. It is also contended, that an interest in the United States is sufficient for the purpose of maintaining this suit. Such an interest, it is true, is disclosed in the declaration, so far as a seizure and confiscation could give it ; but a science of these matters not being imputed to the defend- ant, it is not easy to perceive how he could suppose the public had any interest in the flour committed to his keeping. But if he knew every- thing, it will not, in the judgment of this Court, make any difference. The United States, in a case of this kind, have no privilege or rights beyond those of an individual. If they sue on a contract, they are as much held to prove it as a private citizen, and any variance will be as fatal in the one case as the other. If this flour had been private pro- perty, but not that of Rainy or Wolcott, and it had been known to be so to the defendant, yet on this contract no suit could have been main- tained, but in the name of the parties to it. None of the cases cited show that the cestui que trust can bring an action at law, on an agree- ment made with his trustee. There is a fitness in confining the remedy to the party to whom the promise is made ; in which case the judgment can always be pleaded in bar to another action. If the United States recover in this action, who can say that Parmele may not be vexed by another suit in the name of Rainy or Wolcott? The Court, although it has an opinion, is not called upon to say who would have been the RATHBON" V. BUDLONG: PENTZ T. STANTOK: ETC. 625 proper plaintiff in this case; but as no promise was made to the United States, it is sufficient to say, that they have altogether failed in making out their cause of action. The Court cannot say, that an engagement to deliver this property to Rainy or Wolcott was one to deliver it to the United States, or to their Marshal of this district. Where there is no difficulty in suing in the name of the party to the contract, there can be no necessity of supporting the suit of a stranger to it ; and without a precedent in point, the Court- would feel great reluctance in making one. This case has also been likened to those of principal and factor ; and it has been said, and correctly, that the former can sue on a sale made by the latter, although he be not at the time known to the purchaser. Courts of Law, out of their great solicitude to protect the interest of a principal, have gone great lengths in identifying him with his agent or factor, and as a necessary consequence, have permitted a suit in his own name, although he be not, except by implication of law, a party to it. But the Court does not know that such suit was ever sustained on the contract itself, where one in writing took place between the factor and vendor, in which the name of the principal did not appear- What use might be made of such a paper, as matter of evidence, is one thing ; but that a suit can be brought upon it in the name of any but a party to it, has not been shown; nor is it believed that such is the law. Without then disturbing any of the cases of this class which have been referred to, this Court cannot, when sitting as a Court of Law, say, that an express and written promise to do a thing to Rainy or Wolcott, is a contract to do the same thing to the United States. It looks in vain to the writing itself for such an engagement ; and that is the only source from which it has any right to make its deductions. It is on that which the plaintiffs have relied, and if they do not succeed in showing an assumpsit there, they fail in their action altogether. Upon the whole, as the United States have sued on a written con- tract, to which they are not parties, and in which they are not even named, but which appears to have been made with other persons, it is the opinion of this Court, that the action cannot, in its present form, be sustained. VOL. I. — 40 626 PAEOL CONTRACTS MADE BY AN AGENT. TAINTOR V. PRENDERGAST. la the Supreme Court of New York. MAT TERM, 1842. [reported, 3 hill's n. y. 72-74.J ASSUMPSIT. Of the liability, and right of action, of an undisclosed principal, upon parol contracts made ly his agent. This was a suit to recover a sum of money advanced to the defend- ant, a citizen of New York, in part payment for a quantity of wool which he agreed to deliver to the plaintiff's agent. The contract was made by the latter without disclosing the name of his principal, who was a merchant residing at Hartford, Connecticut. The agent was a resident of New York. The wool was not delivered as agreed, and the question was, whether an action could be maintained by the principal. By the Court, Cowbn, J. It may be admitted, as was urged in the argument, that whether the principal be considered a foreigner or not, his agent, omitting to disclose his name, would be personally liable to an action. Even in case of a foreign- principal, however, I apprehend it would be too strong to say, that when discovered he would not be liable for the price of the commodity purchased by his agent. This may indeed be said, when a clear intent is shown to give an exclusive credit to the agent. I admit that such intent may be inferred from the custom of trade, where the purchaser is known to live in a foreign country. No custom was shown or pretended in the case at bar ; and where the parties reside in different states under the same confederation, this has been held essential to exonerate the principal. (Thomson v. Davenport, 9 Barnewall & Cresswell, 78.) It will be seen by this case and others referred to by it, that the usual and decisive indication of an exclusive credit is, where the creditor knows there is a foreign prin- cipal, but makes his charge in account against the agent. If the seller be kept in ignorance that he is selling to an agent or factor, I am not aware of a case which denies a concurrent remedy. On the other hand, I am still in want of an authority that, where an agent acquires rights in a course of dealing for his principal, whether the latter be foreign or domestic, and his name is kept secret, the prin- EATHBON T. BUDLONG: PENTZ V. STANTOK: ETC. 627 cipal may not sue to enforce those rights. I admit that the defendant is not by such form of action to be cut off from any equities he may have against the agent. So far the latter is considered as the exclusive principal ; but no farther. As a general rule, the latter cannot main- tain an action in his own name at all ; and the exception will be found to arise from cases where he has rights of bailee or some other rights; not the mere powers of a naked agent.(l) The learned judge charged according to this principle ; and he was clearly right. New trial denied.(2) [The note which follows, being one of some length and of several divisions, the stu- dent may be assisted by a tabular exhibit of the arrangement under which, — ^though this arrangement is not at all formally presented by Mr. H. B. Wallace, — its subject appears to have been, in fact, conside^fed by him. I. LIABILITY of (1.) Principal on parol contracts made by an agent, (i.) Where such contracts are express. (A.) Where these express contracts are written ones. (B.) Where the express contracts are verbal ones. (2.) Agent on parol contracts made in behalf of principal, (i.) Where such contracts are express. (A.) Where in such express contracts credit has been given to the agent exclusively. (B.) Where in such express contracts the name of the prin- cipal has not been disclosed or does not appear. (C.) Where the agent has no authority to contract, (a.) The contract being verbal, (b.) The contract being written. (3.) Bach party, st. Peinoipal and Agent. (ii.) Where the obligations are Implied. II. EIGHT OP ACTION in Principal and Agent respectively. (1.) On express contracts being chiefly written ones. (i.) Where the name of both principal and agent are disclosed, (ii.) Where the name of the agent alone appears. (2.) On implied liabilities.] (1) Paley on Ag. by Loyd, oh. 4; Id., oh. 5; White v. Bennett, 1 Missouri, 102, 104, 105. (2) See Pitts v. Mower, 6 Shepley, 361; Estate of Merrick, 2 Ashmead, 485; Parker ti. Donaldson, 2 Watts So Sergeant, 9 ; Harp «. Osgood, Hill, 2li.—Note by Reporter. 628 PABOL CONTRACTS MADE BT AN AGENT. We shall consider, (I.) the liability of (1) the principal and (2) agent, respectively, on parol contracts made by an agent, the contract being express ; and next to consider under a single head, (3) their liability where the contract is implied; and consider (II.) the eight or action on their part on (1) express and on (2) implied contracts made to them. I. In regard to liability, the general rule is, that implied contracts in law are raised from the party interested in the consideration : but as to express contracts, if a relation of agency exists and appears in any contract, the right of action is against the principal, unless credit was given expressly and exclu- sively to the agent : and an agent is not personally bound upon a contract made as agent, unless, first, credit was given to him exclusively, or, secondly, he has given no right of action against his principal upon the contract j in which cases he is bound. (1.) The case of the liability of the principal on (i) express contracts may be examined : and as the rules of law and evidence create some difference between (A) written and (B) verbal contracts, it may be expedient to consider them separately. (A). In respect to the liability of the pt-incipal on loritten contracts ; if the name of the principal, and a relation of agency, be stated in the writing, and the agent really be authorized, the principal alone is bound, unless the language express a clear intention to bind the agent personally. (1) But in order that the principal may be bound upon a written instrument or agreement, not under seal, it is necessary that his name should appear in some part of the instrument or agreement. The rule is, that in suing on a written instrument, such as a pro- missory note, the whole liability must be made out on the instrument itself, and that parol evidence is not admissible to alter, or add to, a written agreement which is made the ground of the action ; and therefore a principal cannot be made liable on a written instrument, or by mere force of a written agreement, where his name does not appear in the instrument or agreement, as a parfy to the contract. (2) In The Merchant^ Bank of Macon v. The Central Bank of Georgia, 1 Kelly, 418, 428, the point decided was that the principal, whose name was not on the bill, was, in consequence of receiving the consideration, " liable upon the common count, upon principles ex aequo et hono." And not only must the name of the person for whom the engagement is en- tered into, appear in the instrument, but a relation of agency between himself and the person making the engagement must be disclosed on its face j that is, it must appear that the person acted as agent in making the contract ; for un- less this appear, he will be bound personally, and the other, on whose account he acts, will not be bound. Whether the party making the contract, acta as agent, and whether being an agent, he yet intends to pledge his own personal /esponsibility for his principal, must depend on the intention of the parties to the agreement ; it is a question of construction, to be determined by the lan- guage of the agreement, with reference to its subject, and the circumstances : (1) See Stanton v. Camp, 4 Barbour's Supreme Court, 275, 277; Dyer». Burnliam, 25 Maine, 10, 13; Downman v. Williams, 7 Queen's Bench, 103, 111. (2) Pentz D. Stanton ; Stackpole v. Arnold, 11 Massachusetts, 27 ; Bedford Commercial Ins. Co. V. Covell, 8 Metcalf, 442 ; Taber v. Cannon and others. Id., 466, 460 ; Clealand v. Walker, 11 Alabama, 1059, 1063; Minard v. Mead, 7 Wendell, 68; The Bank of Rochester v. Monteath, 1 Denio, 402, 404; Thurston v. Mauro, 1 Iowa, 231, 233. EATHBON V. BUDLONG: PENTZ V. STANTON: ETC. 629 or as was said in Campbell and another v. Nicholson and another, 12 Robin- son's Louisiana, 428, 433, "by an examination of the contract itself, of the circumstances under which it was made, and the manner in which it was carried out by the parties, and appears to have been understood between them." " As the forms of words in which contracts may be made and executed," says the court in Bradlee v. Boston, Glass Co., 16 Pickering, 347, 350, « are almost infinitely various, the test question is, whether the person signing professes and intends to bind himself, and adds the name of another, to indicate the capacity or trust in which he acts, or the person for whose account his promise is made ; or whether the words referring to a principal, are intended to indicate, that he does a mere ministerial act, in giving effect and authenticity to the act, promise' and contract of another. Does the person signing apply the executing hand as the instrument of another, or the promising and engaging mind of a con- tracting party ?" If the contract disclose an agency, and show that the person contracting acts as the representative of another, who is competent to contract, and whom he has authority to bind, it will be the contract of the principal and not the agent, unless the form of the language show a distinct intention to the contrary. Or, as the rule is expressed in Kei/ v. Parnham, 6 Harris & John- son, 418, 421, " wherever, upon the face of an agreement, a party contracting plainly appears to be acting as the agent of another, the stipulation's of the contract are to be considered as operating solely to bind the principal ; unless it manifestly appears by the terms of the instrument that the agent intended to superadd or substitute his own responsibilty for that of his principal. In such case, and in such case only, if acting within the scope of his powers, is he personally answerable." In determining whether a party contracts personally or as agent, the presumption is inrfavor of the former : that is, a party will be bound personally unless his character of agent be clearly disclosed : Early v . Wilkinson & Bunt, 9 Grattan, 79 : but in determining whether an apparent agent intends to bind himself or his principal, the presumption is in favor of the latter ; that is, the agent will not be bound, unless there be a clear inten- tion to that effect. Accordingly, instruments in the following forms, where the transaction was really on account of the principal, and the agent had authority to bind him, have been decided to bind the principal, and not the agent : — " I promise to pay, &c.," " value received, for the S. C and W. M. Company. S. B., Agent ;"(1) also a note beginning, " I promise to pay, &c. ;" or " I warrant, &c.," and signed " A. B., agent for C. D.," or, " for C. D., A. B.," or, « A. B. for C. D. ;"{2) (1) Eathbon i'. Budlong. (2) Long V. Colburn, 11 Massaohaaetts, 97. [However, in a case where the note was "I promise to pay/' &o., and signed R. H. Early, [for S. H. Early,] these last words being enclosed within brackets, the court, after a careful consideration, held, that the enclosure of the words [for S. H. B.] within brackets, made it the note of the so-called agent and not that of his prin- cipal. ''The case without the brackets," said Moncure, J., "would have been near the line, though on that side which binds the principal. With the brackets, it may still be near the line, but I think is on that side which binds the supposed agent." And the court considered that a note signed in this bracketed way, did not indicate an agency, but was meant to be a note with a memorandum to show to what account the transaction was to be charged. Early Wilkinson, 9 Grattan, 72. J. W. W.] Despatch Line of Packets v. Bellamy Man. Co., 12 630 PAEOL CONTRACTS MADE BY AK AGENT. also a contract expressed to be made " on behalf of" another whose name is disclosed. (1) la Bradlee -v. Boston Glass Co , 16 Pickering, 347, a note in this form, " For value received, we, the subscribers, jointly and severally, pro- mise to pay Messrs. J. & T. B. or order, for the Boston Glass Manufactory, thirty-five hundred dollars, &c." and signed " J. H., S. G., C. F. K.," was decided to be not the note of the company, but of the individuals signing ; and among other things, the words "jointly and severally" were said to be quite de6isive of the question ; and see, also, Savac/e v. Rix, el a., 9 New Hampshire, 263, 270, and Trask v. Roberts et al, 1 B." Monroe, 201, 204, as to the pre- sumption afforded by those words : but in Eice v. Gove, 22 Pickering, 158, a bote in this form, " For value received, we jointly and severally promise to pay, &o.," "P. & J. for Ira Gove," was decided to be the note of Gove, the intention to bind him, manifested by the form of execution, being still stronger than the indication to the contrary furnished by the words "jointly and severally," which were to be rejected as surplusage. The last case shows that these words may be used where there is no intention to incur a personal liability, and seems substantially to overrule the former case, which as to that particular seems to have been erroneous. On a question of actual intention, in an informal instru- ment, such technical phrases ought to be considered as entitled to little atten- tion ; the parties either mean nothing by such words, or they may be considered as meaning to execute the agency jointly and severally. But the cases are numerous in which a person professedly contracts on account of another, and as a representative of his interests, and yet the party for whose benefit the contract is made, is not bound, because the relation is not one of agency, or the title used by the acting party, is not distinctly expressive of an agency. Thus, if one makes a note promising as guardian of A. B. to pay a sum of money, and signs also as guardian, he is bound personally, because, as an administrator cannot by his promise bind the estate of his intestate, so neither can a guardian by his contract bind the person or estate of his ward. (2) So, in Burrell v. Jones, 8 Barnewall & Alderson, 47, a distress having been levied on the estate of a bankrupt, the solicitors of the assignees gave an engagement of this kind, on the faith of which, the distress was abandoned ; " We, as solicitors of T. M. E., &c., assignees of J. L. J., &c., do hereby under- take to pay, &o., such rent as shall appear to be due, &c.," which was decided to constitute a personal liability; and this case, in Roberts v. Button et al., 14 Vermont, 195, 204, is put upon the ground, first, of want of authority in the solicitors, secondly, that the term ' solicitors,' ex vi termini, has no natural fitness to show an undertaking on the part of another, (unless it be in a matter of pleading in a court of chancery,) any more than brother, or friend, or adviser, or confessor, or almost any other relative term applicable to persons. In like manner, the word ' committee' is not of itself indicative of the rela- tion of principal and agent, and when it is used, it must depend on the form of New Hampshire, 206, 229; Roberts v. Button et al., 14 Vermont, 195; Hovey v. Magill, 2 Con- necticut, OSO; Frost v. Wood, Id., 2.3; Robertson v. Pope, 1 Richardson, 501; Campbell v. Baker, 2 AVatts, 83 ; Ex parte Buckley in re Clarke, 14 Meeaon & Welsby, 469, orerruling Hall V. Smith, 1 Barnewall & Cresswell, 40?. (1) Key D. Parnham, 6 Harris & Johnson, 418; Tattle v. Executors of Ayrea, Penning- ton, 682. (2) Forster v. Fuller, 6 Massachusetts, 58. BATHBON V. BUDLONG: PENTZ V. STANTON: ETC. -631 the engagement, and the language used, or on the circumstances of the trans- action, whether the persons described as a committee, intend to bind themselves personally, or to bind the body -which they represent, and to which party credit is given on the other side. Thus where a contract in writing, in the introduc- tory part was described as an "agreement between H. H., E. S., and N. H., committee of the town of Wayland, on the one part," and " W. S., &o., on the other," and stated that the " said committee are to pay, &c.," it was decided to be the personal agreement of those individuals, and that ' committee' was a mere descriptio personarum.{l) So, in Savage\. Rix et a., 9 New Hamp- shire, 263, a note was in this form, " We, jointly and severally, promise to pay S. S., in official capacity, &c.," dated, «_Dalton," and signed, "E. R., E. C, 0. P. B., Whitefield Road Committee ;" and it was decided not to bind the town of Dalton, of which they were agents, but to bind them personally, even if it were considered that they meant to charge the town and had authority to do so, because the note did not purport to contain the promise of the town, but of the parties personally : however, the words, ' in official capacity,' are so strong, that perhaps the only ground on which the decision in that case can be sus- tained, is, the non-disclosure of the name of the principal in the instrument, as the party to the contract. In Andrews v. Estes et ah., 2 Fairfield, 267, an agreement in this form, " We, the undersigned, committee of the first school district, promise in behalf of said district to pay, &c." signed " R. E., S. G. S., P. P., Committee," was decided to bind the district, and not the signers perso- nally, the school district being a quasi-corporation, and competent to contract for the purpose. And in Stanton v. Gamp, 4 Barbour's Supreme Court, 275, a contract described as between the plaintiff' of the first part, and the S. H. P. Society, by their committee, of the second part," by which the plaintifl" agreed with " the said party of the second part," for a consideration to be paid " by the said party of the second part," to build a church for the society, and signed by the committee individually, was decided not to bind them personally. [Also dicta in Moore v. Wilson, 6 Foster, 336. In Johnson v. Smith, 21 Con- necticut, 627, notes given by three persons who styled themselves " Vestrymen of the Episcopal Society," were held not to bind them individually : but the case in some respect was special, and perhaps is hardly consistent with other adjudications elsewhere. With such a precedent, Hewett v. Wheeler, 22 Conn. 258, in which A. B. C. made a contract calling themselves in its body " a com- mittee for building a congregational church in the village of M.," and signing themselves " building committee," was a clear case of agency sufficiently expressed.](2) In like manner, the word " trustees," appended to the names of one of the parties contracting, does not of itself express a character of agency, but, on the contrary, is prima facie, but descriptio personarum, and is not of itself suffi- cient to rebut the personal liability. (3) It has been held, however, that, although a note made by persons styling themselves "trustees" is an individual (1) Simonds v. Heard, 23 Pickering, 120. (2) And see Campbell and another v. Nicholson and another, 12 Robinson's Louisiana, 428 ; Miller v. Ford, 4 Strobhart, 214. (3) Hills V. Bannister, 8 Cowen, 31 ; Brookway ». Allen, 17 Wendell, 40; Fogg v. Virgin, 19 Maine, 352; Cleaveland v. Stewart and others, 3 Kelly, 283; Trask v. Roberts et al., 1 B. Monroe, 201 ; and see Webb t>. Burke, 5 Id., 51, 63. 632 PAROL CONTRACTS MADE BY AN AGENT. promise, and the word " trustees" merely descriptive, yet a note made by per- sona " as trustees," is evidence of a contract or promise made, not in an individual, but in a fiduciary capacity. (1) So, also, where a contract is made by a person describing himself as the officer of an institution, for example. President, it cannot in all cases be deter- mined from that descriptive title alone, whether the act is on personal or official account, and the question of liability must be decided upon the form of the contract, or extrinsic circumstances. Accordingly, it has been determined, that a note, in the form, " We promise to pay, &c., for work done on the building of the G. 8. Comp.," (signed) 0. B. I. " Pres. Gr .S. C," bound the'company and not the individual; (2) on the other band, it has been held that where the President of a company makes a note beginning, '< I, J. F., President of the M. F. I. Company, promise," &c , and signed " J. F.," or beginning, "I pro- mise," and signed " J. F., President of the B'l F. I. Co.," it is not, on its face, the promise of the Company ;(3) but the judgment of the court appears to have been based upon the authorities relating to sealed instruments, and perhaps the decision is hardly to be sustained. (4) In Farmers' and Mechanics' Bank v. Troy Glty Bank, 1 Douglass, 458, a bill addressed to " J. A. W., Cashier Farmers' and Mechanics' Bank of Michigan," and " accepted, J. A. W., Gashier," was held to be the acceptance of the bank, and not the cashier. [And such a case may be distinguished from a recent one in the Q. B.(5) in which a bill of exchange purporting to be for value supplied to the H. M. Company was directed to the defendant as an individual, who wrote across it " accepted for the Company, W. C, Purser," and was held personally liable.] And in City of Detroit V. Jackson, 1 Douglass, 107, 114, a submission declared in the body of it, to be on the part of " The Mayor, Recorder, Aldermen, and Freemen of the City of Detroit, by Z. P. Mayor of said city, and agent for that purpose duly appointed," and signed " Z. P., Mayor of Detroit,'' was decided to be the agree- ment of the city, and not of the mayor personally. [These decisions are probably accordant with Moss v. Livingston, 4 Comstook, 208, in which a bill drawn by A. on B., President of R. M. Co.," and accepted by " B., President of the R. M. Co.," was held under particular circumstances to bind him personally.] In Mechanics' Bank v. Bank of Columbia, 5 Wheaton, 326, and Bank of Utica v. Magher, 18 Johnson, 341, 346, it was held, that where an instrument had on its face the appearance and form of a corporate transaction, but was signed by an officer of the corporation without the addition of his official title, it was either to be taken as an official act, supposing the marks of official character to pre- dominate on the face of the instrument, or else parol evidence was to be received of the nature and circumstances of the transaction. (6) In cases of this kind, where there is a doubt or ambiguity on the face of the instrument, as to whether (1) Leaeh v. Blow, 8 Smedea A Marshall, 221, 228. (2) Robertson v. Pope, 1 Richardson, 501. (3) Barker v. Mechanic Ins. Co., 3 Wendell, 94, 98. (4) See Wyman v. Gray. 7 Harris &, Johnson, 409; Lazaras, use, Ac., v. Shearer, 2 Alabama, 719; and Lyman et al. v. Sherwood et al., 20 Vermont, 42, 49; and see Passmore v. Mott, 2 Binney, 201. (5) Mare d. Charles, 36 English Law and Equity, 138. (6) See also. The Merchants' Bank of Macon v. The Central Bank of Georgia, 1 Kelly, 418, 429; Ghent ». Adams, 2 Id., 214. EATHBON V. BUDLONG: PENTZ V. STANTON: ETC. 633 the person means to bind himself, or only to give an evidence of debt against an institution or body of which he is a representative, parol evidence is undoubtedly admissible ; not indeed, to show the intention of the parties to the contract, but to prove extrinsic circumstances by which the respective liability of the principal and agent may be determined ; such as, to which the conside- ration passed and credit was given, and whether the agent had authority, and whether it was known to the party that he acted as agent. The extent of the principle as to the admissibility of parol evidence, appears to be this : Where the names of both principal and agent appear on the instrument, and the con- tract, though in the name of the agent, discloses a reference to the business of the principal, so that the instrument, as it stands, is consistent with either view, of its being the engagement of the principal or of the agent, parol evidence is admissible, in a suit against the agent to charge him by showing either that credit was given to him, or that he had not authority to bind the principal by that contract, which would create a consideration for a liability on his part, or to discharge him by proving that the consideration passed directly to his prin- cipal, as, that credit having been given to the principal alone, the consideration of the note signed by him was an antecedent liability on the part of the princi- pal, and that the other party knew that he acted as agent, and thus destroying all consideration for a liability on his part ; and in like manner, to charge or discharge the principal by similar circumstances. (1) But if the name of the principal does not appear in the instrument, and the instrument is without am- biguity, and asserts a positive liability on the part of the person contracting, parol evidence to bind the principal, or to discharge the agent, is not admissible : see Savage v. Rix et al., 9 New Hampshire, 263, 270 ; and the cases of Mai/- hew et al. v. Prince, &c., cited presently. (B.) As to the liability of the principal upon verbal contracts, the rule is similar ; that where the relation of principal and agent exists in regard to a contract, and is known to the other party to exist, and the principal is disclosed at the time as such, the contract is the contract of the principal, and the agent is not bound, unless credit had been given to him expressly and exclusively, and it was clearly his intention to assume a personal responsibility ;(2) but, if credit was given to him exclusively, and he intended to give his own personal engagement, he will be bound ; and this, upon sufficient evidence, is a question for the jury on all the circumstances of the case. (3) (1) See Mechanics' Bank v. Bank of Columbia, 5 Wlieaton, 326; Bank of TJtica v. Magher, 18 Johnson, 341, 346; Brookway v. Allen, 17 Wendell, 40; Stanton v. Camp, 4 Barbour's Su- preme Court, 275, 278 ; Wyman v. Gray, 7 Harris & Johnson, 409 ; Lazarus, use, &e., v. Shearer, 2 Alabama, 719 ; Underbill et al. v, Gibson et al., 2 New Hampshire, 352 ; Cleaveland V. Stewart and others, 3 Kelly, 283, 297 ; Kean v. Davis, 1 Zabriskie, 683. (2) La Farge v. Kneeland, 7 Cowen, 456, 469 ; Stanton v. Camp, 4 Barbour's Supreme Court, 275, 27S ; Bradford et al. i;. Eastburn, 2 Washington C. C, 219; Hall v. Huntoon, 17 Vermont, 244. (3) Torry v. Holmes, 10 Connecticut, 500, 510 ; Cunningham v. Soules, 7 Wendell, 106 ; Beebee v. Robert, 12 Id., 413, 417 ; Scott u. Messiok, 4 Monroe, 535, 536 ; Wiljsins, Ac, v. Duncan, 2 Little, 168; Hudson v. Wilkins, 5 Id., 196; Presbyterian Church v. Manson, &o., 4 Bandolph, 197 ; Andrews v, Allen et al., 4 Harrington, 452 ; and see Longbottom v. Kodgers, 2 Manning & Granger, 427. 634 PAEOL CONTEACTS MADE BY AN AGENT. Previously to the late case of Beckham v. Drake, 9 Meeson & Welsby, 79 (affirmed 11 Id. 315 : See 2 House of Lord's Cases, 579, 623); but little hesi- tation would have been felt in saying that the doctrine of the liability of an undisclosed principal, on contracts made by his agent, was applicable only to implied contracts; except in the case of a partnership. There is no doubt that on express contracts made in the firm name, a dormant partner is liable ; be- cause that is a representative name, and all the partners may legally be charged as having contracted under that name. But no case had ever established such a liability, in cases of express contracts, where merely the relation of principal and agent existed. But in Beckham v. Drake, it is declared, by Lord Abiu- ger, and Mr. Baron Parke, in the clearest and most decided manner, that an unknown principal, is liable when discovered upon all express contracts, verbal or written, entered into by his agent in his own name, as principal. That, indeed, was the case of partnership : and how far the decision is an authoriii/ in regard to principal and agent merely, may perhaps be questionable Con- sidering it, however, as establishing the rule just stated, it seems to be opposed to principle, and not supported by cases previously decided. In what form is the declaration to be framed ? It certainly cannot be averred that A. (the pi'inoipal), by the name and style of B. (the agent) made the contract, for the facts would not sustain the allegation ; and such a view would be inconsistent with the acknowledged personal liability of the agent. If it be stated in the declaration, as was done in Beckham v. Drake, that B. (the agent) on behalf of A. (the principal) made the contract with C. (the plaintiff), the difficulty is not removed. Express contracts have an identity in law : a contract set out in a declaration as made by B. on behalf of A., is in law either a contract by B. or by A. If it be regarded as the contract of B., it will not charge A. It must be considered then as the contract of A. ; but a contract between B. and C., dealing as principals, and without reference to any third person, is not a contract between A. and C. The contracts are not indentical in law ; in other words there is a variance. The method of declaring adopted in Beckham v. Drake, is supposed to be just the same in law, as a declaration averring that the principals themselves contracted; it, indeed, conceals the difficulty, but does not remove it. No doubt, as stated above, a principal may be declared against on a parol contract, and if there be evidence to satisfy the jury of an actual contract between the parties to the action, a written or verbal engage- ment made by the agent may be given in evidence to show the terms of that contract : but it is impossible to establish an actual express contract between the plaintiff and a person whose existence, or connexion with the subject, was unknown and unthought of by him. Such an undisclosed principal, is in fact not a principal in the expiress contract. He is the principal in the beneficial interest of the transaction, and he is the employer of the party contracting : but where an express contract is made by one in his own name alone, though for account of another, the relation of principal and agent, between the person making it and his employer, does not exist in that express contract. The agent, and not his employer, is the principal in that express contract. These remarks have reference to the case where the existence of an ulterior principal is not known to the other contracting party, and the agent treats, and is treated with, as principal. If a principal is known to exist, though it be not made known who he is, he may be bound on express contracts, the engagement being EATHBON V. BUDLOSTG: P E N T Z V. STANTON: ETC. 635 with the principal whoever he may be. But where the existence of an ulterior principal is not thought of, such person, it is believed, cannot be bound on an express contract made by his agent in his own name, and acting as principal. It must be observed that these are dicta recognising Beckham v. Drake, in B. U. S. V. Lyman ei al, 20 Vermont, 668, 673, and' by Parke B. in Beckham V. Drake, 2 H. of L. Cases, 579, 623. Such are the general rules as to the liahlWtj of a principal on express contracts. (2.) In regard to the liability of an agent on similar contracts, one case (A.) has already been stated ; that, namely. Where credit has been given exclusively to the agent, or he has expressly hound himself to fulfil a contract m,ade for the benefit of his pirincipal. The other ground of liability in an agent exists where he has made a contract without giving a right of action against the principal on that contract : and of this there are two cases : (B.) Where the name of the ■principal is not disclosed in the contract. (C.) Where the agent had not authority to bind the principal. (B.) The first of these last two cases, st. where a contract is made and no right of action given against the principal on the contract, is where, in a written contract in the agent's name, the name of the principal is not introduced, or on a verbal contract the principal is not disclosed ; in either case, unless the agent disclose his principal in the contract so as to give an immediate right of action against him, on that written or verbal contract, his own name appearing, he is himself liable upon it. The rule, as it applies to written instruments, is illus- trated in Pentz'v. Stanton; that an agent signing a written instrument, and not stating the name of his principal in it, is himself liable upon it ; and that it is not enough that he describes himself as 'agent,' because, unless the name is stated in the instrument, there is no right of action against the principal Upon it : and see to the same efi'ect;(I) and the rule is general, that whenever an agent puts his name to a negotiable instrument as a party to it, he is legally liable to the promisee and to endorsees upon it. The case of Roberts v. Austin, 5 Wharton, 313, is believed to have been an oversight on the part of the learned court in which it was decided, in carrying beyond its proper limit the principle established in The Mechanics' Bank v. Earp, 4 Rawle, 385, 389, and Sharp v. Emmet, 5 Wharton, 288 ; and the law appears to have been hold correctly in the court below. (2) So in verbal contracts, if the agent does not disclose his agency, and name his principal, he binds himself, and is subject to all liabilities, express and implied, created by the contract and transaction, in the same man- ner as if he were the principal in interest ;(3) and the fact that the agent is known to be a commission merchant, broker, auctioneer, or other professional (1) Winsor et al. •>. Griggs, 5 Cashing, 211; Taber ii. Cannon and others, 8 Metoalf, 456, 460; Mayhew et al. v. Prince, 11 Massaoliusetts, 54; Arfridson v. Ladd, 12 Id., 173 ; Hancock t. Fairfield, 30 Maine, 299, 302. (2) Austin V. Eoberts, 2 Miles, 254 ; see Higgins v. Senior, 8 Meeson & Welshy, 834; and Henback, Brothers, v. Mailman, 2 Duer, 260. (3) Keen u. Sprague, 77, 80; Davenport &, Co. v. Eiley &, O'Hear, 2 M'Cord, 198; Allen and another v. Rostain, 11 Sergeant &, Rawle, 362, 375; Mauri v. Heffernan, 13 Johnson, 58, 77; M'Comb V. Wright, 4 Johnson's Chancery, 659, 669. 636 PAROL CONTRACTS MADE BY AN AGENT. agent, makes no difference. (1) " At this day/' said the Chancellor in Mills v. Hunt, 20 Wendell, 431, 434, "the law must be considered as settled, that a vendor or purchaser dealing in his own name, without disclosing the name of his principal, is personally bound by his contract j and it makes no difference that he is known to the other party to be an auctioneer, or broker, who is usually employed in selling property as the agent for others. Even where he discloses the name of his principal, if he signs a written contract in his own name merely, which contract does not upon its face show that he was acting as the agent of another, or in an official capacity on behalf of the government, he will be personally bound thereby." It has been held, however, that if the agent expressly discloses that he acts for others, and designates his principals by a discriptive title so intelligibly and distinctly that they may be readily pursued, though not by their individual names, it is enough, if more be not required by the other party ; and therefore that where the master of a ship receipted in the form " Received, &c., on account of passage of slaves, on board the brig Endymion. For the owners, M. C. Mordecai," he was not personally liable. ('2) (G.) The other instance of an agent's liability against his intentions, is where he acts wrongfully and has not authority to bind his principal. (a.) In case of a verbal contract made by one as agent, but without authority, the person himself is liable in an action on the contract, and it is not necessary to bring an action on the case;(3) and the burden of proving his authority is on the agent;(4) and if an agent be authorized to go to a certain extent, — for example, to pay a certain price — and he go beyond, the person with whom he contracts may hold him personally responsible for the whole amount due on the contract, although the agent may have a right to claim from his principal remu- neration to the extent of the price which he was authorized to give. (5) (b.) On written contracts, made without authority, the agent is equally respon- sible, but there is this distinction as to the mode of charging him : if the name of the agent does not appear in the contract, and the agreement purpose to contain the promise of the principal only, the agent cannot be made liable in assumpsit upon the contract, but the remedy against him must be an action on the case; but if his name does appear in it, either in the form of his con- tracting as agent for the principal, or of the principal's contracting by him as agent, if the language used is not necessarily exclusive of a personal engage- ment by him, or, if rejecting what the person assuming to be agent had no right to put, there remain apt words to bind the agent, he is personally liable in assumpsit on the contract. (6) This is illustrated also in the principal case (1) Waring .;. Mason, 18 Wendell, 426, 435 ; Hastings v. LoTering, 2 Pickering, 214, 221 ; Baxter v. Duren, 29 Maine, 434, 439. (2) Waddell v. Mordeeai, Riley, 17; S. C, 3 Hill's So. Car., 22. (3) Meech v. Smith, 7 Wendell, 315, 319; Bay v. Cook, 2 Zabriskie, 343, 352. (4) Miller v. Stock, 2 Bailey, 163. (5) Feeter v. Heath, 11 Wendell, 478, 485. (6) Jenkins J). Hutchinson, 13 Adolph. & Ellis N. S., (66 B. C. L.,) 751 ; Woodes v. Dennett, 9 New Hampshire, 55, 58; Pettingill v. McGregor, 12 Id., 180, 191, in which this principle is satisfactorily established; see, also, Lazarus, use, Ac., <■. Shearer, 2 Alabama, 719, 726; Delius et al. V. Cawthorn, 2 Devereux, 90 ; Bank of Hamburg v. Wray, 4 Strobhart, 87 ; Hite v. Ken- dall, 2 Pike, 338 ; Mooro v. Wilson, 6 Foster, 335, in which it was decided, that if one without authority undertake to make a written contract for another, he does not thereby bind him- self, If such contract, after rejecting expressions descriptive of his assumed agency contains EATHBOIT V. BTJDLONG: PENTZ V. STANTON: ETC. 637 case of Dusenhury v. Ellis; [and by Nichols v. Diamond, 9 Exchequer, 155 ; in which, on a bill of exchange directed to "J. D., purser of the W. D. Co.," and accepted by him thus : " J. D., per proc. W. D. Co." — J. D. having no autho- rity from the company, a partnership company of which he was a partner — it was held that J. D. was personally liable, his not having any right to accept for his partners not affecting his acceptance for himself, and the other being rejected as of no effect ;] so also in Rossiter v. Rossiter, 8 Wendell, 494 ; where Kossiter, the agent, exceeding his authority, signed a note, " H. R. P., by his attorney, W. S. Rossiter," and was held to be liable on the note ; and again, in Palmer V. Stephens, 1 Denio, 472, 480. These cases may fairly be considered as over- ruling Ballou V. Talbot, 16 Massachusetts, 461.(1) However, whenever the agent is made liable for contracting in another's name without authority, though the form of the action may be ex contractu, the real ground of his liability is his wrongful conduct, and he will not be liable where he was in no fault, (2) as where his power was terminated by the death of his principal without his knowledge. This is shown in Smout v. llhery, 10 Meeson & Welsby, 1 ; where Baron Alderson stated that the true principle derivable from the cases is, that there must be some wrong, or omission of right, on the part of the agent, in order to make him personally liable on a contract made in the name of the principal, and that in all cases in which the agent has been held personally responsible, he has either been guilty of some fraud, or has made some state- ment which he knew to be false, or has stated as true what he did not know to be true, omitting at the same time to give such information to the other con- tracting party as would enable him equally with himself to judge as to the authority under which he proposed to act. So, an action on the case for claim- ing to have authority, can be sustained only where the claim is fraudulent — that is, where the agent knows that he has not authority ; if the ground of the supposed authority be disclosed and known to the other party, and there is a no words to charge him with a pergonal obligation. Hence, where the body of the note was in the name of " the 2d Methodist Church, at M.," and was signed by A., without authority, as trustee, held that assumpsit could not be maintained against A.j and see to similar effect, Jefts V. York, 4 Gushing, 372 ; Underbill et al. v. Gibson et al., 2 New Hampshire, 352; Roberts r. Button et al., 14 Vermont, 195, 202 ; and see Jones v. Downman, 4 Q. B , 235, note ; and note (a) to Thomas v. Hewes, C. & M., 630; and American note to Nichols v. Diamond, 9 Exch., 156. (1) [In which itwas held, that the failure of an agreement, as between the contracting parties for want of authority, cannot render it binding on another person with whom there was no in- tention to contract, and that the proper remedy against the pretended agent, is in case for the actual or legal fraud, and not as assumpsit on the contract. The authority of this case was recognized in lefts v. York, 4 Gushing, 371, where it was decided that a suit could not be brought on a note made in the name of the pastor and deacons of the First Baptist Ghurch, against the defendant, who had signed as their agent, without authority from them, although the court intimated, that had the instrument been made in the first person, *' I promise to pay," Ac, and executed by the defendant as agent for the church, it might have been treated as his contract, without perverting its terms. " The most satisfactory solution of the question may perhaps be found, in holding that a man who induces another to enter into a contract, by means of a false representation of an authority which he does not possess, is estopped from saying that he is not a party to the contract; and will be held to have meant that it should take effect, in the only way in which it can be effectual, and bind him personally, although made in ;the name of another." The Grafton Bank v. Flanders, 4 N. H., 23. J. I. C. H.] See Kingman «. Kelsie, 3 Gushing, 339. (2) Ogden i: Raymond, 22 Connecticut, 379. 638 PAROL CONTRACTS MADE BY AN AGENT. common mistake as to the nature or extent of it, the agent will not be liable; Inhabitants of Webster v. Lamed, 6 Metcalf, 523, 528. [The weight of authority in this country would seem to be, that a man who contracts as an agent is bound to show that he had authority to bind his prin- cipal, and will be liable to an action in his own person, unless he can prove the liability of the party whom he has assumed to represent.(l) An opposite view has been taken in England, and the burden of proof held to rest on the plaintiff, who must give some evidence that the agent has no right to the character which he has assumed. (2) This view was adopted in Plumb v. Milk, 19 Barbour, 74, and a recovery refused against the defendant, who had contracted as agent, in the absence of proof that such was not his real character.] It has been said, in some instances, that to absolve the agent he must have had authority at the time, so that he gave an immediate right of action against the principal, and that a subsequent ratification will not relieve him;(3) but there seems to be no ground for this distinction, at least where the ratification is before suit brought against the agent. In Gregory v. Mack, 3 Hill's N. Y. 380, 384, there is a dictum of Bronson, J., in opposition to such a distinction; where an agent had made a contract different from his instructions, and it had been ratified by his principal; "That," said Bronson, J., "has relieved the plaintiff from any claim which the other party might otherwise have made upon him, on the ground of his having undertaken to act as the attorney or agent of another without sufficient authority;'' and in Desjjatcli Line of Packets v. Bellamy Man. Co., 12 JMew Hampshire, 206, 229, it was said that a note, "I promise, &c.," signed "R. H. P., agent," &o., would be the note of P. if he had no authority, but that a ratification would exonerate him. (3) With regard to implied liabilities arising out of the transactions of agents, it has been stated above, that if the agent does not disclose his princi- pal, he is himself liable on all contracts, express and implied, arising out of his transactions, as if he were principal : but an unknown principal, receiving in law the consideration of a contract, becomes liable upon all those implied liabilities which arise from the receipt of a consideration. Accordingly, on a sale to an agent, the principal, though undisclosed, is liable for the purchase- money, because the property vests at once in law in the principal, and creates the legal liability for goods sold and delivered, or bargained and sold, (4) And the doctrine, that a principal is not bound where credit has been given exclu- t (1) Mott V. Hicks, 1 Cowen, 613, 536 ; Brockway v. Allen, 17 Wendell, 40 ; Bay v. Cook, 2 Zabriskie, 343, 362; Gillaspie et al. v. Wesson, 7 Porter, 466, 451 ; Hite v. Kendall, 2 Pike, 338 J Harwood's Ex'rs u. Humes, use, «&o., 9 Alabama, 659. In several of our States, it is pro- bable, tbat the agent, when liable at all, is liable directly on his contract, though the rule in Massachusetts is said to bo different, and that the remedy against the agent would be against the agent for his falsely representing himself. Tefts and Wife v. York, 4 Gushing, 373, and see Moor v. Wilson, 6 Foster, 336, where the court would not support ordinary assumpsit. (2) Downman v. Williams, 7 Q. B., 103 ; Carr v. Jackson, 7 Exchequer, 381. (3) Rossiter v. Rossiter; Palmer ti. Stephens, 1 Denio, 472, 481; Lazarus, use, &e., v. Shearer, 2 Alabama, 719, 726 ; Taber v. Cannon and others, 8 Metcalf, 456, 461. (4) See Pentz v. Stanton ; Beebee o. Robert, 12 Wendell, 413, 417 ; Ep. Church of Macon V.Wiley, 2 Hill's Chancery, 684, 690; Bacon &. Raven v. Sondley, 3 Strobhart, 542; Violett V. Powell's Ad'r, 10 B. Monroe, 347; Carney «, Dennison & Gore, 15 Vermont, 400 ; Upton et al. V. Gray, 2 Greonleaf, 373 ; Taber r. Cannon and others, 8 Metcalf, 466, 469 ; Clealand v Walker, 11 Alabama, 1059, 1064; Downer . Bryan, 1 B. Monroe, 292; Johnson & Co. v. Small, 5 Id., 25; McFarland, &c., ». McKnight, 6 Id., 500, 506 ; Shaw v. Reed, 9 Watts & Sergeant, 72; Smith v. Berwick and another, 12 Robin- son, 20, 27; MoDaniel u. Emanuel, 2 Richardson, 455, 459; Yates et a), v. Brown et al., 8 Pickering, 23; Arthur v. Balcb, 3 Foster, 157 ; Penn., Delaware and Maryland Steam NaT. Co. V. Hungerford, 6 Gill & Johnson, 292 ; Martin v. Temperley, 4 Q. B., 298 ; Huzzey v. Field, 2 C. M. & R., 432, 440. (2) Brown v. Puryiance, 2 Harris & Gill, 317; Wright f. Wilcox, 19 Wendell, 343; Rich- mond Turnpike Co. v. Vanderbilt, 1 Hill's N. T., 480 ; McGary v. The City of Lafayette, 12 Robinson, 668, 676; Legget v. Simmons, 7 Smodes & Marshall, 348. (3) Priestley v. Fowler, 3 Meeson & Welsby, 1 ; Murray v, S. C. Railroad Company, 1 MoMullan, 385; McDaniel ((.Emanuel, 2 Richardson, 455,458; Ryan u. The Cumberland Valley R. R. 23 Penna. State, 284, a case decided by a divided court and which ought to have been decided on other grounds ; Hutchinson v. The York, Ac, R. R. Co., 19 Law Journal Reports, 296, S. C, 14 Jurist; Farwell v. Boston and Worcester Railroad Corporation, 4 Met- calf, 49; Coon v. The Utica and Syracuse R. R. Co., 6 Barbour's S. Ct., 231; S. C, 1 Selden, 492 ; Hayes v. The Western Railroad Corporation, 3 Gushing, 270 ; Albro v. The Canal Co., 6 Id., 75; even though it be in entirely distinct departments of the same service. Coon v. The Syracuse and Utica R. R. Co., 1 Selden, 492. (4) This Ohio case was a suit against a railroad company by an engineer of the road for damage done to his person owing to a collision of trains. The engineer's business was simply to run the trains as the conductor^ another servant of the comi^any, told him to run them, and he was thus running them when the collision took place. The fault was with the conductor in giving careless instructions to the engineer. " It is contented on the part of the company," said the Court, "that public policy forbids the right of a party to bring suit against his em- ployer for an injury by another in the same employ, because it is supposed that it will lead to carelessness on the part of those employed, when they know that they can recover for any damage that they may receive. In answer to this, it may be remarked, that it is only where the person has been careful himself, that any right of action accrues in any case. Besides, we do not think it likely that persons would be careless of their lives and persons or property, merely because they might have a right of action to recover for what damage they might prove they had sustained. If men are influenced by such remote considerations to be careless of what they are likely to be most careful about, it has never come under our observation. We think the policy is clearly on the other side. It is a matter of universal observation, that in any extensive business, where many persons are employed, the care and prudence of the employer is the surest guaranty against mismanagement of any kind. The employer would, we think, be much more likely to bo careless of the persons of those in his employ, since his own safety is not endangered by any accident, when he would understand that he was not pecuniarily liable for the careless conduct of his agents. Indeed, we think that those who have others in their employ are under peculiar obligations to them to provide for their safety "WILSON V. PEVERLY. 649 taken in Scudder v. Woodbridge, 1 Kelly, 197 ; where the doctrine was held not applicable to the case of a slave, in any way under the authority of another servant not a slave ; but for fraudulent neglect, in the appointment or choice of the person whose negligence occasioned the injury, the superior might be made liable upon a declaration specially framed. For acts of omission and ne- \ gleet, an agent is not personally liable, but only the principal j(l) because the/ duty is not the principal's, and not the agent's, but for substantive acts of tort,i or tortious negligence, ihere is no doubt that an agent is personally liable. (2)^ An intermediate agent, between the principal and the direct agent, is not liable "l for tortious negligence. (3) [Nor will he be liable for misrepresentations made by .^ the agent with reference to property or business entrusted to his care, but without the scope of the authority or duties imposed or conferred by the agency. (4) In other words, as all acts done by an agent with the express orV implied authority of the principal are the acts of the principal, he is responsible for the way in which they are done, but he is not responsible for acts done without his authority, which stand on the same footing, whether they proceed from the agent or from a stranger wholly without authority. No man, saya"^ Lord Holt, (5) is chargeable with the acts of his servant but when he acts in execution of the authority given by his master, and then the act of the servant is the act of the master. J. I. C. H.] But the maxim, respondeat superior, is applicable only where the relation of '■ principal and agent, or of master and servant, exists, and not where the relation is only that of contractor ; that is to say, if a man employs another to do a and comfort, and we think they shonld at least be held legally responsible to them as much as to a stranger. " We could easily suppose a case where two persons employed by the same individual, and standing on a perfect equality — where the business was managed as much by one as the other —where they would stand on the same footing as men in the community generally do — in which the employer would not be liable for an injury done to one by the negligence of the other. But we regard this case as standing entirely on a different footing. "Amongst other cases, we have been referred to those of Parnell v. The Boston and Wor- cester Eailroad Corporation, 4 Mete, 49 ; and Murray v. South Carolina Railroad Company. The case in 4 Metcalf denies the right of recovering principally on two grounds, namely, that the person employed contracts with reference to the perils of the employment: and that he receives a compensation, in the way of wages, for such perils, and therefore he cannot recover; and that it would be contrary to public policy to permit a recovery, as the tendency would bo to produce carelessness on the part of persons thus employed. The decision in 1 MoMullen, appears to be based principally on the first of these two propositions. We have noticed both of these propositions in our previous remarks. In both oases, much stress is laid upon the fact that no precedent of a recovery under such circumstances is to be found. It is to be noticed, that in both of these cases the facts differ in some particulars from the present; we must admit, however, that the reasoning in those cases would cover the one now before us. So far as those cases decide, that a recovery cannot be had in a case like the one now before ihe Court, we think they are contrary to the general principles of law and justice, and we cannot follow them as precedents." (1) Conwell V. Voorhees, 13 Ohio, 523, 542; Denny t;. The Manhattan Company, 2 Denio, 116, 118: 5 Id., 639; Colvin i). Holbrook, 2 Comstock, 126. (2) McFarland, &o., v. McKnight, 6 B. Monroe, 500, 506. (3) Brown v. Lent, 20 Vermont, 529. (4) Grant v. Norway, 10 C. B., 665 ; Coleman v. Riches, 16 Id., 104. (6) Middleton v. Booth, 1 Salkeld, 282. i 650 RESPONDEAT SUPEEIOE. work for him, or for his benefit, so that the person employed is not his agent, or servant, but merely a contractor with him, he is not responsible for his acts or those of his servants ;(1) but the application of this distinction has been found to be a matter of great nicety, (2) [and a liability will unquestionably exist whenever the circumstances are such as to put the person employed within the control of the employer, and thus make the latter answerable for permitting that which he might have prevented. Sadler v. Ilenlock, 4 Ellis & Black- burne, 570, J. I. C. H. ; though a simple reservation in what is otherwise a contract, not of master and servant, but of equal and independent contractors, " to inspect the work and watch the progress of its execution," would not create such liability.] (3) It appears, however, to be a rule, that where property remains in the possession of the owner, those employed about it are, in law, with regard to third persons, his servants, whatever contracts may be made among the par- ties, so long as those contracts leave the owner in the legal possession and con- trol; and the owner is responsible for injuries occasioned by the condition in which the property is, or by the acts of any of those employed upon it ; and this is the ground of the distinction between land or fixed property, which re- mains in the legal possession of the owner, and mere personal contracts, or per- sonal property, delivered into the possession of the contractor as bailee ; but it is equally applicable to personal property, such as ships, continuing in the legal possession of the owner. (4) There is, however, so much perplexity in these cases as to the ground of the distinction on which they proceed, that the fore- going principal is stated with some hesitation. The liability of the owner of land for injuries resulting from the acts of those employed by one with whom he contracts for something to be done upon it, certainly goes beyond the case of a mere nuisance left on the land, as is shown by Randleson v. 3Iurray, and Loviell V. B. and L. R. R. Corporation. The subject is confused. [But it would seem that as the ownership of property imposes duties, it renders the owner liable for injuries which result to others from his neglect in not taking proper care of it, and without their being in default ;(5) but it would also seem, that a defendant is not answerable for changes in the condition of his land, which he could not have foreseen, though caused by persons whom he has employed as workmen, unless such change continue sufficiently long to affect him with negli- (1) Blake V. Ferris, 1 Selden,48; Quarman v. Burnett, 6 Meeaon & Welsby, 499; Rapson v, Cubitt, 9 Id., 710 ; Milligan v. Wedge, 12 Adolphus & Ellis, 737 ; and Peaohey v. Rowland, 13 C. B., (76 E. C. L.), 1S5. (2) Gayford v. Nichols, 9 Exchequer, 702; Peachey v. Rowland, 13 C. B., 182; Strel v. The South Eastern Railway Co., 16 Id., 650; Overton v. Freeman, 11 Id., 867; Fiske v. The Framingham Man. Co., 14 Pick., 491 ; Elaokenberger v. The Schuylkill Navigation Co., 2 Miles, 309 ; Moore v. Sanhorne, 2 Michigan, 719. (3) Barry v. City of St. Louis, 17 Missouri, 125; and see Eeedie v. The London and North Western Railway, 4 Exchequer, 244. (4) Bush V. Steinman, 1 Bosanquet & Puller, 404; Matthews v. West London Waterworks Company, 3 Campbell, 403; Stone v. Cartwright, 6 Term, 411; Burgess v. Gray, 1 Common Bench, 578 ; Randleson v. Murray, 8 Adolphus & Ellis, 109 ; Fenten v. The City of Dublin Steam Packet Company, Id., 835 ; Stone v. Codman, 15 Pickering, 297, 299 ; Lowell v. Boston and Lowell Railroad Corporation, 23 Id., 24, 31 ; The Mayor, Ac., of New York «. Bailey, 2 Denio, 434, 444 ; Gardner v. Heartt, 3 Barbour, 166, 168 ; Wiswall ii. Brinson, 10 Iredell, 564 ; and see The City of Buffalo v. Holloway, 14 Barbour's S. C, 401. (5) Bush V. Johnson, 11 Harris, 209. WILSON V. PEVERLY. 651 genoe in not endeavoring to make it safe.](l) If the owner of land has devested himself of the legal possession, by a lease, he is not responsible for the acts of injury done or occasioned by his lessee. (2) [Nor will he be liable for an injury sustained by a trespasser ;(3) although he cannot permit an excavation to re- main unguarded on land which he has expressly or impliedly thown open to the public, or which abuts immediately on a public highway, without being answerable for the consequences. (4) J. I. C. H.] With regard to the responsibility of a public oflScer for the misconduct orf negligence of those employed by or under him, the distinction apparently turns upon the question whether the persons employed are his servants, appointed voluntarily and privately, and paid by him and responsible to him, or whether 'j they are his official subordinates, nominated perhaps by him, but officers of the \ government ; in other words, whether the situation of the inferior is a public 1 office or a private service. In the former case, the official superior is not liable/ for the inferior's acts ; in the latter he is. Accordingly, the post-master-general I is not responsible for losses arising from the negligence of his deputies, nor a deputy post-master for the negligence of official assistants appointed by him ; ' for, one is not the servant of the other, but all are the officers of the govern- | ment.(5) Apparently on the same ground, a mail contractor is not liable to the owner of a letter for a loss occasioned by the carelessness of the drivers in / carrying the mail; Conveell y. Voorhees, 13 Ohio, 523, 541; for though this \ exemption is put by the court on the ground that the principal contract is with ' the government and not with the owner of the letter, yet probably the true ground of the decision, (if it be correct) is that stated by the counsel, at p. 529, that the driver holds an official situation, known to and recognised by the/ law, and that he is really in the employment of the post-office department. In fact, the liability of a public officer is only for his own misfeasance or neglect, and he is not liable for losses occasioned otherwise ; a public treasurer is not liable for money stolen from his office without any imputation of negligence or default in him. (6) But though the neglect of official subordinates is not in law the neglect of their superior, yet the latter may be liable for his own neglect in not properly superintending the discharge of their duties, in his office, and perhaps for his fraudulent neglect in appointing them ; but the declaration must be especially framed to refer to this kind of negligence. (7) On the other hand, where the inferior holds not an office known to the law, but his appointment is private, and discretionary with the officer, the principal is responsible for his acts'; as a sheriff for the negligence of his deputies, the- deputy being, for all purposes of the writ, the sheriff himself ; (8) or a super- (1) Gayford v. Nioholls, 9 Exchequer, 702. (2) Fiske t>. Framingham Man. Co., 14 Pickering, 491; Ejch v. Basterfisld, 4 Common Bench, 782. (3) Stone v. Jackson, 16 C. B., 199. ' (4) Bush V. Johnston, 23 Penna. State, 209 1 Barnes v.Wnii, 9 C. B., 392; see Sarch v. Blackburn, 4 Carrington & Payne, 297 ; Bird v. Halbrook, 4 Bingham, 628. (5) Sohroyer v. Lynch, 8 "Watts, 453 ; Dunlop v. Monroe, 1 Cranch, 212, 269 ; Wiggins v. Hathaway, 8 Barbour's S. Ct., 632; Boody et al. v. The U. S., 1 Woodbury & Minot, 151, 170 ; following Lane v. Cotton, 1 Ld. Raymond, 646 ; Whitfield v. Lord Le Despencer, Cowper, 754. (6) Supervisors of Albany Co. v. Dorr, Ac., 25 Wendell, 440. (7) Dunlop V. Monroe, 7 Cranch, 242, 269; Bishop v. Williamson, 2 Fairfield, 495 606. (8) Smart v. Hutton, 2 NeTille & Manning, 426. 652 RESPONDEAT SUPEEIOE. mtendent of repairs on a public canal for negligence of workmen employed by him.(l) With regard to the liability of a public municipal corporation for the acts of its officers, the distinction is between an exercise of those legislative powers which it holds for public purposes, and as a part of the government of the country, and those private franchises which belong to it as a creature of the law : within the sphere of the former, it enjoys the exemption of govern- ment, from responsibility for its own acts, and for the acts of those who are independent corporate officers deriving their rights and duties from the sovereign power; (2) but in regard to the latter, it is responsible for the acts of those who are in law its agents, though they maybe appointed not by itself (3) (1) Shepherd u. Lincoln, 17 Wendell, 260. "The sheriff," says Baron Parke, in Wood v. Finnis, 7 Exchequer, 369, "is liable for all acts done, and neglects of duty, by the bailiff in the execution of a writ, on the ground that if the sheriff thinks fit to commit the execution of n. writ, which he is bound to execute, to another, he is responsible if that person does not exe- cute it properly, and is in the same condition as if he had executed it himself; Parrott v. Mum- ford, 2 Esp. N. P. C, 685, cor. Eyre, C. J., ; the case of a sheriff differing in this respect from the liability of an ordinary principal for the acts of an agent who does not pursue the authority committed to him. Therefore, if a sheriff's officer arrests a wrong person, or arrests the right person after the return day, or takes a wrong person's goods under a fi. fa., or even if he arrest under a writ of fi. fa., or is guilty of extortion in insisting on l»eing paid a sum of money as the price of liberation from imprisonment under a oa. sa., the sheriff is liable. Though none of these acts are done in pursuance of the authority of the writ, yet they are done in the exe- cution, or, as it is said, under colour of it ; and the sheriff is exactly in the same position as if lie had done those acts himself. So, if the sheriff's officer permits the defendant to go at lar;rQ on paying to him the sum mentioned in the writ, the sheriff would be liable for an escape : for it is a neglect of duty by the officer, seeing that the writ commands the sheriff to have the body of the debtor at the return to Butisfy the plaintijff", and not to pay the debt to the sheriff; and in that respect his duty upon the ca. sa. differs from that under a fi. fa., by which the sheriff is directed to make a sum out of the goods and chattels of the defendant, and himself to have that money at the return ; so that, in the latter case, the defendant is discharged by payment to the sheriff, and the sheriff becomes debtor to the plaintiff; in the former, he is discharged by payment to the plaintiff alone; and the sheriff, by receiving the money, has no right to substitute his responsibility for that of the debtor, whose body the creditor has a right bylaw to keep until the debt is paid to him. The authorities are very full and clear upon this point. Taller v. Baker, 2 Jones, 97, 2 Lev. 203 ; Slackford v. Austen, 14 East, 468; Stringer V. Stanlack, Cro. Eliz., 404." But as the principalis not liable in any form of action, for the acts of the agent, without the scope of the agency, no action can bo maintained against the sheriff, for the failure of a bailiff, to pay over money received from a debtor, arrested on a capias ad respondendum ; The United States v. Moore, 1 Brockenborough, 317; Woods v. Finnis 7 Ex., 371 ; nor for any other act or default on the part of his officers, which lies wholly with- out and beyond the exigency of the writ with which they are entrusted ; Harrington v. Fuller, 6 Shepley, 177 ; although he may be made to answer, for everything that is done under colour of executing it, and even for an assault in the execution of a^./a.; Smart v. Hutton; see The New Hampshire Savin|s Bank v. Varnum, 1 Metcalf, 34. (2) White V. City Council, 2 Hill's So. Car., 571 ; Martin v. Mayor, Ac., of Brooklyn, 1 Hill's N. T., 546, 550 ; The Mayor, Ac, of the City of New York i'. Furze, 3 Id., 612, 61-8. (3) Bailey v. The Mayor, Ac, of the City of New York, 3 Hill's N. Y., 532 ; S. C, on error, 2 Denio, 434, 450 ; Thayer v. Boston, 18 Pickering, 611; Rhodes v. Cleveland, 10 Ohio, 159 ; see M'Combs v. Town Council of Akron, 15 Ohio, 474; S. C, 18 Id., 229; Wilson v. The Mayor, Ac, of New York, 1 Denio, 566, 601 ; The Rochester White Lead Co. c. The City of Rochester, 3 Comstock, 464; Meares v, Com'rs of Wilmington, 9 Iredell, 73; Mayor and Al- derman of Memphis v. Lasser, 9 Humphreys, 767. WILSON V. PEVEKLY. 653 But the application of this distinction is confessedly nice. [Thus in Lloyd vs. The Mayor of New York, 1 Selden, 369, the city of New York was held liable in its corporate capacity for the neglect of the persons employed by the corpo- ration to repair the public sewers, in not lighting and protecting an excavation made in the discharge of their functions, in consequence of which the plaintiff fell into an opening and was injured ; because the act of repairing was purely ministerial in its nature, and the corporation was answerable for the conduct of the persons whom they chose to perform it. " The corporation of the city of New York," said Foot, J., " possesses two kinds of powers, one governmental and public, and to the extent they are held and exercised, is clothed with sovereignty — the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a muni- cipal government, and while in the exercise of the latter, is a corporate, legal individual. The distinction between these two classes of powers is obvious, and has been frequently recognised and established in our courts. (1) Although the difference between the two kinds of powers is plain and marked, yet as they approximate each other, it is oftentimes difficult to ascertain the exact line of distinction. When that line is ascertained, it is not difficult to determine the rights of parties, for the rules of law are clear and explicit which establish the rights, immunities and liabilities of the appellants when in the exercise of each class of powers. All that can be done probably with safety, is, to determine, as each case arises, under which class it falls. The act Which caused the injury in the present case, was performed under the power and duty to clear the sewers of the city. Legislation, or in other words, the establishing of rules and regulations in respect to cleaning the sewers, or keeping them in a state of cleanliness, is one thing, and the act of cleaning them is another. The power and duty to perform the latter is clearly ministe- rial, and falls under the class of private powers. The principle of respondeat superior consequently applies." The measture of damages in cases where the maxim of respondeat superior ap- plies will be probably regulated as in cases of a tort directly committed, in a degree at least, by the facility or want of it with which the plaintiff might have avoided or arrested by his own reasonable exertions. — For the direct and con- sequential damages, the defendant undoubtedly is liable ; hut " if a party sus- taining an injury by an act of another, can protect himself at a trifling expense, or with reasonable exertions, from the consequences, he fails in social duty, if he omits to do so regardless of the increased amount of damages for which he may intend to hold the other liable The law will not reward a man for the indulgence of his malice. (2) This whole matter, however, belongs to a differ- ent head than that of respondeat superior.] l\) Wilson u. The Mayor, Ac, of New York, 1 Donio, 595 ; Bailey v. Same, 3 Hill's R., 531 ; S. C, opin. of Hand, Senator, 2 Denio, 450 ; Rochester White Lead Co. v. The City of Ro- chester, 3 Comstock, 463. (2) Douglass V. Stephens, 18 Missouri, 367 j and see Skipp v. Eastern Counties Railway, 8 Bxchequer, 224. 654 A FACTOE MAY SELL ON CREDIT. A FACTOR IS AUTHORIZED TO SELL ON CREDIT. OF THE CIRCUMSTANCES BY WHICH A FACTOR MAY BECOME LIABLE UPON SALES. ELIJAH GOODENOW v. JOHN E. TYLER. In the Supreme Court of Massachusetts. SEPTEMBER TERM, 1810. [reported from 7 MASSACHUSETTS, 36-47.] If a consignee sell the goods of Ms principal, upon such credit as is usual at the place of sale, and take the purchaser s negotiable note, payable to himself or order, he does not thereby become personally liable to his principal, although the purchaser should fail before the note is due, and nothing should be paid by him. In this case, the defendant, a commission merchant at Boston, sold a pipe of gin, as factor of the plaintiff, and took the purchaser's note payable to himself, or order, at ninety days. The purchaser, before the time of payment, failed, and no dividend was paid to his creditors. No particular orders had been given by the plaintiff, as to selling on credit. A custom was proved at Boston, and at the defendant's store, for factors to sell on credit, at the principal's risk. In this action, of assumpsit by the principal against the factor, a verdict for the plaintiff was directed, because the factor had received in payment the purchaser' s negotiable note ; and a verdict having been given accordingly, the ques- tion of the factor's liability for having done so, came to be argued upon a motion for a new trial. Parker, J. (1) The plaintiff would insist that a factor, under the circumstances of this case, had no authority to trust the purchaser ; and that having so done, he became immediately chargeable to the principal for the price. But the law merchant clearly contradicts this principle, it being well settled that a factor may sell upon credit, without taking upon himself the debt ; unless he is restricted from so doing by the orders of his principal. And this principle is reasonable, and for the benefit of those who send their goods to market: for otherwise they (1) The principle stated in this case, as to the receipt of a negotiable note being payment, is peculiar to the states of Massachusetts and Maine, in this country; and even there, has been mnch modified by later decisions. Sec American note to Cumber r. Wane, 1 Smith's Leading Cases, 5th American edition, p. 410, Ac. GOODENOW V. TTLEE. 655 would be frequently sold at a sacrifice, or remain unsold at the expense of the owner. But even if this were not settled law, it is very clear that the usage of the market where the goods are sold, would bind the owner, for he is presumed to be conusant of that usage ; and if he is silent in his direc- tions to the factor as to the terms of the sale, he is considered as intend- ing to be governed by the usage. Then if the factor had authority in this case to sell on credit at the risk of his principal, there being no complaint of negligence, carelessness, or want of skill in making his bargain, either of which might have made him liable to the owner, not- withstanding his general authority ; the question arises whether the mode in which the defendant gave the credit in this case, has fixed the debt upon him. A promissory negotiable note, payable to himself, was taken ; and this is the point upon which the judge at the trial, thought the liability of the defendant rested, But I do not see why this should change the nature of the case. The relation between the principal and factor remains the same, as if the factor had taken a note not negotiable; or had charged the article sold in his book, and had made the purchaser debtor to himself; which he certainly might have done, keeping an account at the same time between himself and the principal. That the note was negotiable, was favourable to the principal ; because it could easily be assigned by the factor to him. It is considered by the law as taken in trust for the principal ; and if the ^ctor should refuse to assign it on demand, doubt- less he would be liable in an action by the principal. It is said that a negotiable note, given for the amount of an account for goods sold, discharges the original contract. This is true, as settled in this commonwealth, between the vendor and vendee : but it surely does not follow, that because the factor has changed an account on his book into the more simple and convenient evidence of debt, a note of hand, that for this cause only, he has burdened himself with a debt, for which he received no consideration. I am therefore of opinion that there ought to be a new trial. Sbwall, J. If I was satisfied that, upon established principles, a factor, who sells the goods of his principal upon credit, and receives a promissory note for the amount of the sales, payable to himself, and negotiable, became thereby immediately accountable, as if he had sold for money, I should think a new trial ought not to be granted. But I am not satisfied that this is the law. I think the rule in this respect must depend upon the particular usages of commission merchants, and 656 A PACTOE MAY SELL ON CREDIT. that the law upon this subject, as to the authority of the factor, and the extent of his liability, is referable to known and established usages ; where the parties rely altogether upon the general relation and implied duty of a merchant and factor, no directions or agreement having been expressed between them, or proved in the case. I think usage is competent evidence in a case of this nature, to show the implied intention and understanding of the parties. As evidence to the effect of proving a usage of selling upon crdit, and of taking nego- tiable promissory notes payable to the commission merchant, was offered in this case, and rejected at the trial, I think there ought to be a new trial ; leaving it for the present undetermined how far the usage will justify the conduct of the defendant in the case at bar. It is very certain that no usage can justify the defendant in any wilful pegligence, in securing the property of his principal. And if his conduct has been such as to show that he had received and treated the note given for the gin as his own demand, he may be liable ; notwith- standing usage to sell upon credit, and to take notes in payment should be fully proved. Sedgwick, J. The question is, whether a promissory negotiable note taken by a commission merchant payable to himself, in payment for goods sold for his principal, at the time of the sale, the custom of the place authorizing a sale upon credit without express authority from the principal, is at the risk of the principal or of the factor. I have no doubt that the evidence of selling upon credit, where no particular instructions were given, was properly admitted. But evi- dence offered to prove that, in cases where credit was given by a factor, it was customary to take promissory negotiable notes payable to the factor, was rejected because it was deemed inadmissible. Perhaps it might be proper that a unanimous opposing opinion of all the other members of the court should induce such a modest diffidence of my own judgment, as would lead me silently to acquiesce. But of the opinion which I delivered at the trial, I had then very little doubt ; and I con- fess that neither my own reflections, nor what I have heard since, have entirely altered the view which I then had on the subject. Under these circumstances it is my duty to declare (and I shall do it as concisely as possible) the reasons on which my opinion was founded. We know that a promissory note, given and received for goods at the time of a sale of them, is payment, as much and as effectual, to all intents and purposes, as cash. Now in this case, at the time of the sale, the defendant took a promissory note in his own name ; and of GOODEXOWV. TTLEE. - 657 consequence then received payment : — as much so as if he had received cash. He did not leave it in the power of the plaintiff to resort to Chapin, the vendee, but he was compelled to look only to the defendant. The note which was thus taken, and which gave evidence of a contract between the defendant and Chapin, to the exclusion of the plaintiff, was negotiable, or in other words, the very form, as well as nature of it, was currency: as much circulating medium as a bank note: of such nature, that a previously existing parol contract, as the law is here un- derstood, would have been merged by it as completely as it would have been by a bond, recognisance, or deed of any kind. Now can it be be- lieved that if the defendant had taken a bond or other deed, in payment for the goods sold, the sufficiency of the debtor would have been at the risk of the plaintiff? No more, in my opinion, than if the defendant had taken a conveyance of real estate in payment. It seems to me, that in such a case the factor must be considered as assuming the risk of the responsibility of the vendee. It is in general undoubtedly true, where a factor sells the goods of his principal on credit, that on non-payment according to the contract, an action may be supported against the vendee in the name of the prin- cipal. The principal has in such case a double security, the fidelity of the factor, and the sufficiency of the debtor. But if he is deprived of the latter, the sufBciency of the debtor, by the act of the factor, as in this case by taking a promissory note in payment, it seems to me rea- sonable that he should have direct recourse to his factor. It is said that the factor is bound to permit, in such a case as this, the principal to make use of his name in commencing an action upon the note. But suppose he will not : the principal is then deprived of any remedy against the debtor; which instead of being an absolute right in the principal, and available at his pleasure, is made to depend on the will of the factor. The factor may also assign the note, or he may die, become insolvent, or a bankrupt, and thereby the remedy, which ought to exist against the debtor for the security of the principal, be wholly lost. The principle, contended for in the defence of this action, is not sup- ported by any rule of commercial law laid down, or even suggested, by any approved authority. It is attempted only to be supported by the custom of commission merchants in Boston. For myself, I am not dis- posed to authorize any description of merchants to alter the known principles of law, in cases materially affecting the important interests of others ; as this would do, by depriving principals of the means of look- ing immediately to their debtors, made such by their contracts with VOL. I. — 42 658 A FACTOR MAT SELL ON CREDIT. factors. It is not like the custom of notice, established by the banks in this state, and which has been approved by the court, of demanding the money due upon negotiated notes of the makers, when they fall due, according to the terms of them, without an allowance for the days of grace, and afterwards at the end of those days, giving notice to the endorsers. This is undoubtedly an alteration of what was previously the law, in respect to notice ; but it is an alteration only of the manner and form, and does not affect, as this supposed custom does, the sub- stance, by depriving the principal of an immediate remedy against a debtor who justly owes him. I know that it may be said in this case, that as Chapin became a bankrupt before the note became due, and as he had no estate from which a dividend could be made, it is impossible that the plaintiff should be a loser. But to this it may be answered, that in establishing gene- ral principles, care should be taken to look at their consequences in all respects : and although there may be cases, in which no injury would result, yet if certain mischiefs could, in other cases, be foreseen, an approbation ought to be withheld. But there is no certainty that there may not, even in this case, have been a loss to the plaintiff: for, if by being the creditor of Chapin, he might have taken an active part in the proceedings against him under the commission of bankruptcy, it cannot with certainty be known but that property enough might have been found to satisfy, in whole or in part, the debts of Chapin. At any rate, it was a chance, of which the conduct of the defendant has unduly deprived him. But however this may be, yet in the cases which have been mentioned, of an assignment of the note by the factor, of his insolvency or bankruptcy, the principal will be liable for losses, which might be avoided by the rule which I have always supposed governed such cases. But even if this custom, on which the defendant relied, could in any case be supported, it seems to me to be necessary for that purpose, that it should have been made known to the plaintiff. This is not pretended to be the case. The defendant was authorized, by implication, to sell on credit : but in this case, as respected the plaintiff, he did not sell on credit ; for the note that was given was payment ; on which, and which alone, could an action be supported for the value of the goods. A note, too, which to many purposes, and to all which have any relation to the case before us, has the properties of money ; over which the defendant had absolute control, and over which the plaintiff had none. I am much opposed to innovations, by the establishment of new rules, affecting the rights of property. They are generally intended to con- GOODENOW V. TYLEB. 659 form to an existing state of things, or the equity of a particular case : but there has hardly been an instance in which they have not been pro- ductive of mischief. Until now, I have never heard it suggested that any such custom, as that offered to be proved, existed anywhere ; but surely it ought not to conclude the plaintiff, without being made known to him. As I thus continue of the opinion I held at the trial, and as the verdict of the jury was conformed to that opinion, I am not for sending the cause to a new trial. Parsons, C. J. The court will take notice, as a part of the law mer- chant, that a factor may sell goods at a reasonable credit, at the risk of his principal, when he is not restrained by his instructions, nor by the usage of the trade. He is not, however, authorized to give credit to any but persons in good credit, and whom prudent people would trust with their own goods. If, through carelessness, or want of reasonable inquiry, he sell on credit to a man not in good credit, and there be a loss, the factor must bear it. When a factor sells on credit, he may take from the purchaser some instrument, by which the purchaser may appear, with the price and the time of payment, and on which the purchaser may be charged in an action at law. And it is very clear, that he is not obliged to disclose to the purchaser the name of his principal, or even to state to him that he sells as factor. Upon these principles, he may take a promissory note payable to himself, and when the principal lives in a foreign coun- try, it may be most convenient for him to have the security payable to himself, so that he may sue it in his own name.. When the security is in the name of the factor, he holds it in trust for his principal. If the principal demand it, offering, to pay the com- mission, and the factor refuse to assign it, he then becomes answerable for the money. So, if the money be lost by his negligence, in not seasonably demanding it, the factor is responsible for his negligence. Upon these principles, it seems very clear, that in this case, if the defendant had taken a note to himself not negotiable, to secure the payment of the money, he would have been a trustee of such note for the plaintiff; and if the money could not be recovered, without any laches on the part of the defendant, he would, in law, be discharged. But, in this case, the defendant took as security a negotiable note, in his own name. And it is said that such note is payment, by which the purchaser is discharged from the principal: and consequently, that the defendant assumed the debt on himself, and is, at all events, answerable. 660 _ A PACTOE MAT SELL OjST CREDIT. It must be admitted, that in this state it has been settled by a series of decisions, which can be traced back sixty years, that where a nego- tiable note is given to secure the payment of money due by a simple contract, the simple contract is holden to be satisfied, or merged in the note ; lest the debtor, on the simple contract, should be holden to pay it to the creditor, and afterwards, as promisor of the note, be holden to pay its contents to an innocent endorsee. But the discharge of the debt, due by the simple contract, is the consideration for the negotiable note. When a factor shall receive a negotiable note, in payment for goods sold on commission, as the consideration arises from the sale of his principal's goods, the note may be holden in trust for the principal. But if it be so holden in trust, and the principal demand the note, oiFering to pay the commission, and the factor refuse to assign it, with- out a right of recurring to himself, this is a breach of his trust which will make him answerable. He is also answerable if he negotiate the note for his own use, or if the money be lost by his neglect of demand- ing it of the parties to the note. Although a negotiable note may change the remedy against the pur- chaser on credit, if he fail to pay, yet the relation between the principal and factor may not be affected. If the law, or the usage, were not so, the disadvantages to the principal would be great. No factor would ever take a negotiable note, as security in his own name, unless for an extra commission as guarantying the payment. By taking such a negotiable note, the principal is not obliged to wait for his money until due ; but the factor may immediately discount the note and receive the money. But when the principal lives abroad, such discount is impracticable, unless by sending the note and having it returned endorsed by him. Another great benefit of a negotiable note, in the name of the factor, is, that he may, on the credit of it, make advances to his principal, which is often desired before the money is due. And the advances are easily procured by the factor's discounting the note. But if the note is in the name of the principal, the factor cannot, on the credit of it, make any advances to his principal. For these reasons, I am satisfied that the principle holden by our courts, that a negotiable note is a bar to an action on the simple con- tract, which is the consideration of the note, does not necessarily and absolutely affect the relation between a factor and his principal, as to the authority of the former to take a negotiable note, in his own name, in trust for the latter. Whether, in deciding this point, we can judicially take notice of the GOODENOW V. TYLER. 661 usage in Boston, to which place the plaintiff sent his goods to be sold on commission, may be questioned. But a general usage in any place, by which sales on commission are regulated, may be given in evidence. For it is a reasonable and legal presumption, that every man knows the usage of the place in which he traffics, whether by himself or his factor, and if the usage be not illegal, he is bound by it. If, then, it be the well-known and uniform usage in Boston for the factor to take nego- tiable notes, in his own name, as a security for the payment for the goods of his principal sold on credit, but in trust for his principal, such usage must bind the principal, unless he give his factor instructions repugnant to it, and such usage may be proved to a jury. Now, I am satisfied that such is the usage in Boston, and believe in every commer- cial city in the United States, where goods are sold by factors on com- mission. In applying these observations to the case before us, there seems to be no imputation in the report, whatever may appear to be the case on another trial, of laches in the defendant, in selling the plaintiff's gin on credit to Chapin, nor in collecting the money. Chapin failed before the money was payable. But the defendant took, as security from Chapin, his negotiable note payable to himself or his order. It is not pretended that the defendant was to guaranty Chapin 's payment, or that he had any commission on that account. The only point is, whe- ther the defendant, by receiving from Chapin his note payable to him- self, or his order, made himself liable, in all events, to the plaintiff, for the payment of the money due on the note ? My present opinion is, that on general principles of the law merchant, independent of any usage in Boston, the defendant did not make himself thus liable ; but if there be any doubt as to these general principles, evidence of the general and uniform usage in Boston, where the plain- tiff sent his goods for sale on commission, that the factor takes nego- tiable notes for payment in his own name, but in trust for the principal, may be legally given in evidence. Upon these grounds, I am satisfied that the verdict ought to be set aside, and a new trial granted. New trial ordered. The most accurate notion of the character of a Factor, in law, is to be derived from the language of the declaratiou in the old action of Account against a factor. He is there described as the Baihff of the plaintiff, having the care 662 A FACTOR MAY SELL ON CREDIT. and administration of divers goods, &c., " ad mercJiand-izandum et proficuum ipsius querentis inde fiendum et ad rationabilein compuium inde cum requisitus esset reddendum ;" "to merchandise and make profit thereof for the plaintiff, and to render a reasonable account thereof to the said plaintiff, when he should be thereunto required." (1) A factor, therefore, may be described, strictly as a bailee of goods or money, to merchandise (or buy and sell) for the profit of his principal, and render him an account thereof. " The factor's contract," says Savage, Ch. J., (2) « is to sell and render an account." It has been stated, before, that a mere special authority or direction to sell an article, does not authorize a sale on credit. (3) But the rule laid down by Parsons, C. J., in the principal case, that by the general law merchant, a factor is authorized to sell on credit, provided it be a reasonable and usual credit, and to persons at the time in good standing, is universally established as a princi- ple of law. (4) This appears to be a legal consequence of the nature of the agency entrusted to a factor, as affected by commercial usage. His agency being to sell so as to make a profit for his principal, and, not to pay over at once, but to account upon demand, is, in its nature, discretionary as to the time and manner of sale ; and the usage of trade being to sell at a certain customary credit, that mode of sale is for the benefit of the principal, and is not a fraudu- lent or negligent exercise of the factor's discretion. A special agent assuming the duty of a factor, will have the same powers. (5) In Leland v. Douglass, 1 Wendell, 490, the declaration, in assumpsit, stated that the defendant had received a yoke of oxen from the plaintiff, on a contract to sell them for a rea- sonable reward, and to account for, and pay over the proceeds ; and the court held that under this contract, the defendant would have been justified, under the exercise of a sound discretion, in selling the cattle upon a reasonable credit; and, therefore, that a contract to sell for cash only, could not have been given in evidence under this count. [However, a factor cannot sell in any unusual waysj as, for example, in pay- ment of his own debt.] (6) The principal case also establishes, that a factor's taking a negotiable note of the buyer for the amount of the sale, payable to himself, will not make him liable for the debt, if the buyer be in good credit ; and this has repeatedly been decided. (7) Auctioneers, also, may take notes payable to themselves: "As bailees to sell," said the court in Townes v. Birchett, 12 Leigh, 174, 194, " they (1) See Brownlow's Entries, 9, Account, (19); Lilly's Entries, 13, Account; Sadock v. Bur- ton, Yelverton, 202; S. C, Bulstrod, 103; Godfrey v. Saunders, 3 "Wilson, 73. (2) Leverick v. Meigs, 1 Cowen, 645, 668. (3) Dolafield v. The State of Illinois, 26 Wendell, 193, 223 ; Itcs v. Davenport, 3 Hill's N. Y., 374, 377. (4) Scott V. Surnam, Willes, 400, 407 ; Van Alen and another v. Vanderpool and others, 6 Johnson, 69 ; M'Connico et al., Ex'rs, v. Curzen, 2 Call, 358, 365 ; Hamilton, Donaldson & Co. V. Cunningham, 2 Brockenbrough, 351, 364; Geyer v. Decker, 1 Yeates, 486; De Lazardi v. Hewitt, Allison & Co., 7 B. Monroe, 697. (5) See May v. Mitchell, 5 Humphreys, 365, supra. (6) Benny v. Rhodes, 18 Missouri, 152; Same v. Pegram, Id., 190, 201; Warner v. Martin, 11 Howard's S. C, 226. (7) Goldthwaite and Tarlton v. M'Whorter, 5 Stewart &, Porter, 284; Kidd i-. King, 5 Ala- bama, 84 ; Greely v. Bartlett, 1 Greenleaf, 172 : Rogers v. White, Id., 193, 196 ; Dwight v. Whitney, 15 Pickering, 179, 184; see West Boylston Man. Co. v. Searle, Id., 225. GOODENOW V. TYLER. 663 are bailees to receive payment; and hence they confessedly have a right of ac- tion in their own names against the purchasers : if so, it is not perceived that there is anything improper in the ordinary custom of taking notes to themselves for the proceeds of sale." And a factor may change the notes v?hich he takes for other notes involving the liability of the buyer, provided the security be not altered, nor the credit extended, and he will not thereby make himself liable. (1) The reason of the factor's incurring no liability by such act is, that taking such a security, or changing it in such manner, does not impair any of the principal's rights of action against the buyer; the principal may still sue in his own name upon the contract of sale; and the notes taken by the factor belong to the principal, who may control the collection of them and sue upon them in the factor's name. Whether a factor becomes liable, by including in the promissory note which he takes for the sale of his principal's goods, the amount of other goods sold on his own account, or on account of other principals, has been somewhat doubted. The best conclusion appears to be, that by the mere circumstance of taking a note in that way, he does not become liable, because the principal's rights against the buyer remain as before ;(2) but that, as the principal is enti- tled to the possession of the securities held by the factor for him, the factor becomes liable, prima facie, for the whole value, if he refuse to deliver on de- mand. But in the able case of Symington v. M' Lin, 1 Devereux & Battle's Law, 291, 303, where the practice of thus mixing different accounts is con- demned as irregular, and tending to fraud, a strong opinion is indicated that the mere circumstance of the factor's including in the same note a debt due to bis principal and a debt due to himself, makes him at once liable to the princi- pal, as being in effect an appropriation of the note to his own use. The true question in the case, said Chief Justice Euffin, is, did the agent intend, when he took the note, to keep it as his own; or did he intend to transfer it, if asked? It must be seen, in such a case, that he did not mean to transfer, at least not absolutely, and not unless the principal would advance in cash, or render him- self responsible for, the part belonging to the factor; and as he had no right to impose that condition, nor to expect that the principal would comply with it, and as, without a compliance, it is not to be supposed that the factor would have parted with the security, or even intended to do so, it is an appropriation. It is a strong presumption of reason, continued the Chief Justice, that the note was made payable to himself because he had an interest in it; and, therefore, that he intended to keep it. It is tantamount to a refusal on demand; for, if demanded, it would not have been delivered. In like manner, in Brown v. Arrolt, 6 Watts & Sergeant, 402, 423, where the agent had included a debt of his own in a note taken for the principal's debt, and then released the note without authority from the principal, the court referred to the rule, that if an agent improperly deposits the money of his principal in his own name with a banker who fails, he becomes responsible for the loss, because he must not so deal with his principal's money as that, if the banker's solvency continue, he may treat it as his own, and if insolvency happen, he may escape by considering (1) Corlies v. Gumming, 6 Cowen, 181, 185. (2) Corlies v. Gumming, 6 Gowen, 181, 187; Rich «. Munroe, 14 Barb., 607; Hapgood and another, Execufcore, v. Batcheller and another, 4 Metcalf, 573 ; Hamilton, Donaldson &, Go, v, Canningham, 2 Brockenbrougb, 351, 363 ; Leach c. Beardslee, 22 Connecticut, 410. 664 A FACTOR MAY SELL ON CBEDIT. it as belonging to his principal, and said tiiat this reason was directly applicable to the case then before them, where the agent, by having taken the note in his own name, including money coming to himself on his own account, had it in his power, as long as the buyer continued solvent, to treat the whole of it as his own, and now sought, when the buyer had become insolvent, to show that the note was taken to secure money coming to the principal, as well as to him- self: but the court would not decide the case on this ground, but decided it on the ground of the release: see Morris v. Wallace, 3 Barr, 319, 323. As, however, the principal's direct right of action on the contract of sale remains unaffected by the note's being taken for more than his own debt, and as the circumstance of the factor's including in the same security a trust for himself, is not of itself a denial of the trust for his principal, there seems to be no suffi- cient reason for holding him liable before a demand and refusal. See Rich v. Monroe, 14 Barbour, 605. There is no doubt, however, that it is the general duty of a factor to keep the concerns and accounts of his principals distinct;(l) and he would be liable in damages for any actual loss occasioned by neglecting to do so. But if the factor, at the time of the sale, discharge the principal's direct right of action, and receive a satisfaction vesting in himself and not in the principal, or if, after a sale, he has the notes which he has taken discounted for his own use, it seems, from some of the cases, that he makes himself liable for the whole debt. Accordingly, it has been decided, that if an agent employed to receive money due on a debt, release the debt and take a new note payable to himself for a larger amount, and in part for himself, he does in law receive payment of the debt as relates to the principal, and becomes at once liable to the principal for the whole amount, in an action of assumpsit, as for so much money received for the principal's use. (2) It has been held, also, that if at the time of sale a factor receive, in satisfaction and discharge of the buyer's liability, the promis- sory note of a third person for a larger amount, made payable to himself, and including a debt due to himself, he becomes at once liable to the principal. (3) x\nd in Jctckson v. Baher, 1 Washington, C. G. 394, Judge Washington held, (4) that the factor's taking a bond from the purchaser to himself for a greater amount, and including in it a debt due to himself, made him immediately liable for the amount of the sale; because, as the bond was an extinguishment of the simple contract debt, the principal could not sue the buyer himself, and the factor's having mixed the debt due to himself and that due to the principal, in one bond, taken in his own name, the plaintiff had no remedy on the bond. It may, perhaps, be deduced from these oases, that if a factor make a sale upon which he gives the principal no right of action against the buyer, and no right to the proceeds of the sale, he becomes a debtor for the whole amount to his principal. But it cannot be admitted that if, after a sale, the factor release the (1) Shipley o. Kymor, 1 Maule & Selwyn, 484, 490 ; Newbold v. Wright and Sheldon, 1 Eawle, 195, 214. (2) Floyd I'. Day, 3 Massachusetts, 403; Opie v. Serrill, 6 Watts & Sergeant, 2G4; and see Ilosmer v. Beebee, 14 Martin, 368, and what is said in Leach v. BearJslee, 22 Conn., 410. (3) Symington v. M'Lin, 1 Devereux & Battle, 291, 298. (4) See, also, Sohee v. Ilassinger, 2 Binney, 325; Doebler and others V. Fisher, 14 Sergeant . Decker, 1 Yeates, 486 ; Porter v. Patterson, 15 Pcnna. State, 229, 233, 235, 236 ; Johnson v. Wing.ae, 29 Maine, 404, 408. VOL. I — 45 706 RIGHTS OF PRINCIPAL AGAINST AGENT. there is no ratification by silence ; see Blevins v. Pope & Son. In fact, the doctrine of ratification , as a discharge of damages, can apply only to acts pro- fessing to be done as agent, for a principal, and therefore not to mere torts ; remission from a liability for torts can be grounded only on a release or dh. charge, which is a distinct question of intention. There are some cases, in which the correspondence of the parties may leave it a matter of doubt whether the principal was to be understood as disafiSrming the acts of his agent, or acquiescing in them ; in these cases, it must be left to the jury whether there was or was not an implied acquiescence in, and ratification of, the unauthorized acts, and a waiver of the principal's claim for damages. (1) III. It is the duty of an agent to keep his principal apprised of his doings, and to inform him in a reasonable time, of sales made, and to give him timely notice of all facts and circumstances, which may render it necessary for him to take measures for his security ; and in case of a neglect to do so, he will be answerable for the loss occasioned by his negligence. (2) [This saluatary principle received application in Olark & Co. v. The Bank of Wheelhy, 17 Penna. State, 322, in which case a firm in New Orleans had received from, and as the agent of, a bank, paper payable in that place, with instructions to invest the proceeds in bills payable in New York or Philadelphia. They invested a portion of them in the purchase of a draft on persons in New York, and for- warded it to a house there for collection, but through mistake advised the bank that they had transmitted it to a firm in Philadelphia. On the day of the receipt of the letter, the bank drew on the Philadelphia firm, for a part of the amount of the draft, with directions to sell the draft alleged to have been received by them. Subsequently, the bank received from the New York firm an acknowledgment of the receipt of the draft from New Orleans, and on the same day the bank drew on the New York firm for nearly the amount of the draft; but before the date of that letter, the New York firm had stopped pay- ment : It was held that the New Orleans firm was liable to the bank for the amount of the draft in dispute.] IV. The duty of a factor to account to his principal is ably illustrated in Clarke v. Moody et al. There is a distinction, which appears to be recognized in that case, as it also is in Gooley v. Belts, 24 Wendell, 203, 205, 206, be- tween the duty of a factor to render an account, and his duty to pay over money in his hands. It is his duty, without instructions, to render an account at reasonable times, and in case of neglect or refusal to do so, he is probably lia- ble to an action, without a demand, as soon as he is in default for not accounting ;(8) but where he has rendered accounts duly, and is in no default of any kind, he is not liable to an action for money received by him until a demand has been made upon him, or instructions given to remit ;(4) and this is chiefly because the money is received by him to await the instructions of his principal, and it is not his duty to remit without instructions, and partly, it is said, be- (1) Cunningham et al. v. Bel! et al., 5 Mason, 161, 171 ; S. C, Bell et al. v. Cunningham, 3 Peters, 69, 81. (2) Devall v. Burbridge, 4 Watts & Sergeant, 305 ; S. C, 6 Id., 629; Brown ti. Arrott, fi Id., 402, 416; Forrestier v. Boardman, 1 Story, 44, 56 ; Austill & Marshall v. Crawford, 7 Alabama, 33B, 341; Johnson v. Wingate, 29 Maine, 404, 408. (3) See Torrey «. Bryant, 16 Pickering, 528; and Sehee ti, Hassinger, 2 Binnoy, 325, 330. (4) Ferris d. Paris, 10 Johnson, 285; Cooley v. Bctts, 24 Wendell, 203. BURBILL V. PHILLIPS: U E C I E E V. E I T T E R: ETC. 707 cause when the money is to be paid, he is not to seek the principal and pay him wherever he may be, but it is due and payable at the factor's residence ;(1) but nothing more seems to be necessary than a request, or instructions, to pay over, and a reasonable delay to give an opportunity for doing so; and in Hall & Chase V. Pech & Co., it was held that a demand after the issuing of the writ, but before service, and before any costs were incurred, would be sufficient. But it seems that a factor is not entitled to this privilege, unless he has per- formed all his duty as a factor; and therefore h« is liable to a suit, without a demand, where he denies his liability as agent ;("2) or has neglected to render account at reasonable times, and to keep his principal properly advised of the state of the agency, or is otherwise chargeable with some default, neglect, or breach of duty ; the case will be the same where he has received general instruc- tions, to remit at certain times, and has neglected to do so. (3) With regard to the question of the liability, generally, of an agent, or receiver, to an action for money in his hands, without a demand, there is a considerable diversity of opinion : but the true distinction appears to turn upon the question whether or not, by the nature of the agency, it is his duty to pay over imme- diately on the receipt of the money. If money be in the hands of one as trus- tee, and he has done nothing amounting to an abuse of the trust, he is not liable to an action without a demand ;(4) and the law is the same in the case of a simple deposit, to be kept for the depositor, or paid according to his di- rections ;(5) and in the case of a steward or bailiff receiving money to hold subject to the orders of his principal. (6) On the other hand, a mere collecting agent, whose duty is to receive money and pay it over in a reasonable time, or to give notice of its collection, is liable to suit without a demand, if he neglects to pay over, or to give notice. (7) And according to the better opinion, the rule is the same with regard to an attorney at law. (8) In Walradt v. May- nard, 3 Barbour's Supreme Court, 584, it was decided, that, although money collected by an attorney for his client, must be demanded, or a direction to re- mit given and neglected, before a suit can be brought, yet there may be a waiver of demand on the part of the attorney, and that his denial of liability to pay, and his setting up a claim exceeding the amount collected, is a waiver of legal (1) Hall & Chase ». Peck & Co., 10 Vermont, 474, 479 ; (see Grant et al. v. Healey, 3 Sum- ner, 623, 526); Henbaok, Brothers, v. Mollman, 2 Duer, 252. (2) Tillotson ti. McCrillis, 11 Vermont, 477, 480. (3) Hemenway v. Hemenway, 5 Pickering, 389 ; Dodge v. Perkins, 9 Id., 369 ; Jelliaon v. Lafonta, 19 Id., 244; Brown v. Arrott, 6 Watts &, Sergeant, 402, 418. (4) Sears v. Patrick, 23 Wendell, 528, 530; Walrath v. Thompson, 6 Hill, 541. (5) Downes t;. The Phoenix Bank of Charleston, 6 Hill, 297; Watson j,. Phoenix Bank, 8 Metoalf, 217 ; Johnson v. Farmers' Bank, 1 Harrington, 117. (6) Lever v. Lever, 1 Hill's Chancery, 62, 67; S. C, 2 Id., 158, 164; Rowlnnd ,;. Martin- dale, 1 Bailey's Equity, 226; Williams v. Storrs, 6 Johnson's Chancery, 353, 358. (7) Drexel & Co. v, Raimond, 23 Penna. State, 22; Lillie v. Hoyt, 5 Hill, 396; Hawkins v. Walker, 4 Yerger, 188; Estes v. Stokes, 2 Richardson, 133; State v. Mcintosh, 9 Iredell, 307, 311. (8) Smith V. AVhiteside, 4 Yerger, 192; Nisbet v. Lawson, 1 Kelly, 275, 281; though the contrary was decided in Taylor v. Bates, 5 Cowen, 376, 379; Rathbun v. Ingalls, 7 Wendell, 320; Krause v. Dorrance, 10 Barr, 462; Cummins v. MoLaine A Badgett, 2 Pike, 402; Palmer & Southmayd v, Ashley &> Ringo, 3 Id., 75, and perhaps in Williams v. Storrs, 6 Johnson's Chancery, 353, 708 EIGHTS OF PRINCIPAL AGAINST AGENT. demand. A sheriff also, who has collected money, and not paid it to the par- ties, nor paid it into court, ia liable to suit without a demand ;(1) though there is a dictum to the contrary in Estes v. Stokes, 2 Richardson, 133. However, in some of the states, it is held to be a general rule, in relation to all agents who collect or receive money under a lawful authority, that until a demand or request made, or something equivalent thereto, they are not liable to a suit; (2) that generally a suit will not lie agaiust an agent by his principal for money re- ceived without a demand. (3) - The ground of this opinion that an agent is not liable to suit without a demand, probably is, that the relation of principal and agent is not that of debtor and creditor, but that of bailor and bailee or of tru.stee and cestui que trust, as is laid down in McDonogh v. Delassus and another, 10 Robinson's Louisiana, 481, 487, 488 ; and it has been supposed important to adhere to this doctrine in order to maintain the rule that the prin- cipal owns the property in the hand of the agent, and may follow it in case of his death, insolvency, or tortious transfer; for if the agent upon the receipt of money became personally a debtor and liable at once to an action, that might be thought to imply that the ownership of the money vested in the agent. But it should be remembered that the right of action in a case of this kind arises from the breach of a trust ; and that the breach of a trust is not a discharge of the trust, which continues notwithstanding the agent has made himself a debtor in law. In the case where a demand has been made, the agent still continues to be a trustee, and the principal to own the property in his hands : so that the liability to suit appears not to depend upon whether the agent is a trustee or not, but upon whether it was his duty under the trust to pay the money over at once, or to hold it subject to orders. — The principle applicable to the subject is stated very satisfactorily in Bedell v. Janney, et dl., 4 Gilman, 194, 201. " A person," said the court, "is entitled to money collected for him by another so soou as received by the latter, and good faith on the part of the collector de- mands its immediate payment by him ; but, nevertheless, he is ordinarily not subjected to suit for his failure or omission to make such payment until after demand therefor has been made of him. As a general rule in such cases, it may be presumed that payment has been delayed by reason of the want of safe and convenient means of transmission, or of some other good and sufficient cause, and that the recipient of the money, still considering himself as entitled to no more than enough reasonably to compensate him for his services in col- lecting it, will pay it over on demand. But, where so long a time has elapsed since the collection of the money, so as to rebut any such presumption in favor of the collector, he may well be considered as having appropriated it to his own use, and then, neither law nor reason requires that before he can be sued for his non-feasance, he should be requested to do what his conduct sufficiently indicates his determination not to do." (1) Dale V. Birch, 3 Campbell, 347 ; (see Jefferies v. Sheppard, 3 Barnewall & Alderson, «96) ; Dygert «. Crane, 1 Wendell, 634, 539. (2) MoBroom et al. v. The Governor, &o., 6 Porter, 33, 47 ; Sally's Administrators ». Capps, 1 Alabama, 121; Kidd .;. King, 5 Id., 84; Houston v. Frazier, 8 Id., 82, 86; Armstrong v. Smith, 3 Blackford, 261; Judah v. Dyott, Id., 324; Taylor v. Spears, 1 English, 382; Warner V. Bridges, Id., 386 ; Cockrill v. Kirkpatrick, 9 Missouri, 697, 704; see also Wardlaw et a), o. Administrators of Gray, Dudley's Equity, 85, 112, and Potter v. Sturges, 1 Devcreux, 79. (3) See Hays v. Stone, 7 Hill, 123, 131. BUREILL V. PHILLIPS: C U R C I E E V. R I T TE E: ETC. 709 la an action against an agent, for neglect or breach of duty, whether con- sisting in the violation of orders or in negligence, the legal measure of damages is the loss actually occasioned thereby to the principal;(l) which will include profits, but not speculative nor vindictive damages. (2) Where a factor was directed not to sell below a certain price, and yet, in violation of orders, did sell below the limit, it was decided, in Austill & Marshall v. Crawford, 3 Ala- bama, 336, 342, that the actual loss, which was the measure of damages, was not the difference between the limit and the price obtained, but the difference between that price and the selling price of such articles during the season : and the same principle is re-affirmed in Ainsworth v. Partillo, 13 Alabama, 460. In Brown & Company v. M' Gran, 14 Peters, 480, 496, it was held, that where a consignee had sold cotton tortiously and contrary to orders on a certain day, and on a subsequent day authority to sell had been received, the consignor had an election either to claim damages for the value of the cotton on the day of the sale, as a case of tortious conversion, or for the value of the cotton on the day when the authority to sell was received. Since an agent, guilty of negligence, is liable only for the loss caused there- by, the case of Burrill v. Phillips appears to be incorrect in the position that a sale made under circumstances of real or constructive notice of want of solvency in the buyer, is to be considered as made at the risk and on the account of the factor, and that in a suit brought by the factor to recover back advances, the principal may avail himself of the claim. In Winchester v. Hackley, 2 Cranoh, 342, which was an action to recover back advances, the plaintiff, after having rendered an account, charged back to the defendant several sums on account of the alleged insolvency of some of the purchasers, and the defendant offered to prove that these sums were lost by the mismanagement and misconduct of the plaintiff, in having made the sales to persons known by him to be unworthy of credit; but the court below (Marshall, C. J.) refused to permit such proof to be made to the jury in this action, being of opinion that such misconduct was properly to be inquired into in a suit for that purpose ; and, on error, this was affirmed by the Supreme Court. It is true that, in some courts, the defendant, principal in an action by the factor to recover his advances, is allowed to show, by way of defence, the damages occasioned by breach of orders, to prevent circuity of action, yet still the measure of damage is the actual loss; (3) and the practice of allowing evidence of negligence or fault in an action to recover advances, is not regular, except under statutes of set-off. (4) With respect to the burden of proof in regard to the amount of damages, in case of neglect of duty or violation of orders, the general rule certainly is, that the party charging the neglect must prove the amount of damages. Yet there are some cases, in which, a right being lost by the fault of the agent, he is (1) Hamilton, Donaldson & Co. v. Cunningham, 2 Brockenbrough, 351, 366 ; Prothingham 11. Everton, 12 New Hampshire, 239, 243; Blot v. Boiceau, 3 Comstock, 78; Gould v. Rich, Administrator, 1 Metcalf, 639, 546 ; The Bank of Mobile v. Huggins, Adm'r, Ac, 3 Alabama, 207. (2) Cunningham et al. v. Bell et al., 5 Mason, 161, 172; S. C, Bell et al. v. Cunningham, 3 Peters, 69, 85; Short u. Skipwith, 1 Brockenbrough, 104, 109; Walker et al. v. Smith, 1 Washington, C. C, 162, 154; Greene and others v. Goddard, 9 Metcalf, 223, 231, 232; see Le Guen V. Gouverneur . Hyserott, 5 Johnson, 68. D'ARCY V. LTLE: BRADFORD V. KIMBERLT. 715 suit is commenced against the agent in Algiers, in Turkey, or at the Cape, and under the threat, or the asserted threat of death, he is made falsely to acknowledge a promise, upon a matter said to be connected with his former agency, and to confess a judgment to an extent beyond all that his principal was worth. Is it possible to say that such an agent can recover his loss from the principal, without destroying here- after that relation among men ? It is not our property that has been taken ; it is not in the course of an agency for us, that his own pro- perty has been taken ; it is the case of an extorted promise under at most a mere colour of continuing agency, the whole from the founda- tion, a tissue of falsehood and outrage, and the judicial proceedings the mere machinery of robbery. All writers upon the subject of mandatory contracts, agree that in such a case there is no recourse to the princi- pal. The mandant is obliged to replace to the mandatary, all reason- able expenses disbursed bona fide, and the damage sustained by him in the execution of the mandate. 2 Erskine's Institutes, Bk. III., § 38, p. 334. The agent ought to be repaid whatever charges he has been at in in the execution of the commission ; and the same holds good of any loss that happens by reason of the trust, but not of such a loss as is occasioned obliquely by it, as if he had been plundered or ship- wrecked.(l) When an agent undertakes a hazardous business, as every business in St. Domingo is to an American merchant, he takes the risks on himself. Ibid. If he suffers damage on account of the affair which he has taken in hand, we must judge by the circumstances, on whom the loss must fall. It will depend on the quality of the order to be executed, the danger, the nature of the event which occasioned the loss, the connexion between the event and the order that was executed, the relation which the thing lost or the damage sustained, had to the affair which was the occasion of it.(2) If a person undertake to go for an- other to a place where his own business obliges him to take money with him, and he is robbed of it, the person who engaged him to make the journey is not liable for the loss. Ibid, note to art. 6. The agent may be a sufferer in his own person or property by the business he under- takes, as where one goes a journey and lames his horse, or is hurt him- self by a fall on the road ; but he cannot recover unless by express sti- pulation. (3) He may demand reparation for such losses only as are the natural consequence of his agency.(4) Non omnia quee impensurus (1) Puffendorf, lib. 5, cop. 4, ? 4, p. 482. (2) I Domat, Bk. 1, Tit. 15, § 2, art. 6. (.S) 1 Paley's Moral Philosophy, 175, Bk. 3, ch. 12. (4) Burlamaqui, pt. 3, cli. 12, ^ 2 ; 1 Huberus, 367. 716 EIGHTS OF AGENT AGAINST PBINCIPAL. non fait, mandator imputabit, veluti quod spoliatus sit d latronibus, aut naufragio res amiserit, vel languore suo, suorumque ajyprehensus, queedam erogaverit ; nam hseo magis casibus, qudm mandate impufari oportet.{\) The distinction is then between those losses which grow naturally out of the agency, and such as are casual, or as Puffendorf terms them, oblique, not flowing directly from the execution of the man- date. For the latter, which is the character of the plaintiff"s loss, the defendant is not liable. There is also a strong equitable reason why in the present case, he should not be ; for although he may recover from Richardson, we cannot either from Richardson or Suckley. 2. The only count on which he can recover, is the equitable count for money had and received ; but we have never received with interest more than $2000 ; the net proceeds of the goods, deducting the balance paid to Suckley and Co., and the outstanding debts, being but $1627. 3. Upon the same ground the damages are excessive. Hare and Tilghman contra. The authorities cited for the defendant on the important question in this cause, will not be controverted. They prove by the clearest implication, that a loss growing out of the agency, •without the fault of the agent, is to be borne by the principal. The rule is distinctly stated and illustrated by Heineccius. The person giving a commission, is obliged to restore useful and necessary charges, and bound to repair all damages that may have been incurred for his sake, or on account of managing his aifairs without the fault of the agent. (2) The same principle runs through a variety of cases, in which the relation of the parties is analogous to that of principal and factor. If a trustee is robbed of the trust-money, he is entitled to an allow- ance. (3) If a partner who is travelling on business of the concern, is wounded or robbed, the common stock must make it good.(l) Partners are agents for each other ; and they derive their indemnity under such circumstances, from their acting at the time as agents for their house. It is the plainest equity, and the merest justice, that the agent should be indemnified; and if ruin must follow, it is better that it should fall upon him who was to reap the profit, without being personally exposed to the injury. Consider this case, then, either as a regular judicial proceeding, founded on a real promise, or as an act of force springing from despotic (1) Dig. lib. 17, Tit. 1, ? 26, ort. 6. (2) Turnbull's Heineccius, 269, lib. 1, cap. 13, J 349. (3) 2 Fonblanque'B Equity, 177. (4) 1 Domat, 159, lib. 1, Tit. 8, J i, art. 12; 2 Brskine's Institutes, 528; Puffendorf, 279, Bk. V. ob. 8, note by Barbeyrao. D'AECT V. LYLE: BBADFORD V. KIMBEELY. 717 power ; in either point of view, the defendant is answerable. If a real promise, the plaintiff had authority to make it, for he was empowered to settle the accounts with Suckley and Co. by compromise, or in any other way, and of course to promise, as a means of obtaining undis- turbed possession of the goods, to pay thfeir debt to Richardson's friends at Charleston. Setting aside the idea of a promise, then it is most clear, that the final act of force was applied in a suit growing out of, and connected with, the original proceeding. The jury have negatived all individual liability by the plaintiff to Richardson, and therefore we must take the asserted liabiliiy to have been as agent. This is the first step. The next feature in the case, is Richardson's intention by the suit to defeat, if not reverse, the judgment in 1804. The records are imperfect. The situation of the country prevents perfect copies from being obtained. But enough appears in the plaintiff's memorial or defence, to show the connexion, because he says it was Richardson's endeavour to make the judges " change their already wise and just de- cision," and " who could suppose that the repose of so honourable a decision should be disturbed after the lapse of more than three years." If the money had not been paid over by the plaintiff to the defendant, it would have been impossible for the latter to recover, against the pro- ceeding at Hayti ; and where is the difference between the inability to recover, and the obligation to refund ? Where would be the difference between Christophe's seizing the goods in the hands of the plaintiff, and compelling him to pay money on account of those goods after they were sold ? If an agent advances money to the principal, and the goods are burnt: — or after the agent has sold and accounted for the goods, a suit is brought against him by third persons claiming the property, and obtaining a judgment : — or while the goods are in his hands, a suit against him for them is decided in his favour, he then sell and remits, and upon appeal the first judgment is reversed, and judgment rendered against the defendant ; — what difference is there between any of these cases, and the present, in which the first judgment was in fact reversed, in a proceeding which was intended to have that effect ? In one and all the agent is entitled to an indemnity. It is true the act of Chris- tophe was an outrage of the grossest kind. But we are not to criticise such acts by the rules of our own code ; it is enough that the plaintiff did not yield a voluntary assent to it, that he resisted until resistance was fruitless, and certain death the consequence of continuing it ; and that it was a consequence flowing from the agency, and which could not have existed but for the agency. It is said the plaintiff was not agent at the time. This is begging the question. He was agent quoad hoc. 718 BIGHTS OF AGENT AGAINST PBINCIPAL. if the second proceeding grew out of the first; and it is of no import- ance whether actual agent or not, if the loss was the consequence of the agency. The material fact is, that Richardson's claim did not origi- nate in a transaction subsequent to the agency. It is also objected that the plaintiff continued to reside at the Cape, after the agency ceased, and that it was his own property that was exposed. To make this of any consequence, it must have been a fault in him to remain there; he was under no obligation to remove. It is said, too, that this loss was the result of one of the risks attending the agency, which he knew and took upon himself. In no respapt does it deserve the name of a casualty. It was a consequence of the agency, produced by the will of those among whom the commission was to be executed. Finally, it is objected that we can recover against Richardson, and the defend- ant cannot. This also begs the main question. If we paid as agent, and paid for the defendant, he may recover, and not we. But it is no reason for turning us round, be the law as it may. 2. The action may be supported upon either of the counts. "We have recovered no more than the principal, interest, and expenses, and this was the least we were entitled to.(l) 3. For the same reason the damages are not excessive. Cur. adv. vult. TiLQHMAN, C. J. This is one of those extraordinary cases arising out of the extraordinary situation into which the world has been thrown by the French revolution. If the confession of judgment by the plaintiff had been voluntary, it would have lain on him to show that the $3000 were justly due from the defendant to Richardson, or the persons for whom he acted, or they had a lien on the goods of the defendant to that amount. But the confession of judgment was beyond all doubt extorted from the plaintiff by duress, and he did not yield to fears of which a man of reasonable firmness need be ashamed. The material fact on which this case turns is, whether the transactions between the plaintiff and Richardson, were on any private account of the plaintiff, or solely on account of the de- fendant. That was submitted to the jury, and we must now take for granted that the proceedings at the Cape against the plaintiff, were in consequence of his having received possession of the defendant's goods from Suckley & Co. I take the law to be as laid down by Ileinec- cius,(2) and by Erskine in his Institutes,(3) that damages incurred by (1) 2 Comyn on Contracts, 1, 138, 159. (2) TurnbuU's Heineocius, o. 13, p. 269, 270. (3) 2 Erskine's Institutes, 534. d'aecy v. ltle: Bradford v. kimberlt. 719 the agent in the course of the management of the principal's affairs, or in consequence of such management, are to be borne by the principal. It is objected that at the time when judgment was rendered against the plaintiff, he was no longer an agent, having long before made up his accounts, and transmitted the balance to the defendant. But this objec- tion has no weight, if the judgment was but the consummation of the proceedings which were commenced during the agency. As such I view them, and I make no doubt but they were so considered by the jury. It is objected again, that no man is safe if he is to be responsible to an unknown amount, for any sums which his agent may consent to pay. in consequence of threats of ^unprincipled tyrants in foreign countries. Extreme cases may be supposed, which it will be time enough to decide when they occur. I beg it be understood, that I give no opinion on a case where an agent should consent to pay a sum, far exceeding the amount of the property in his hands. This is not the present case, for the property of the defendant, in the hands of the plaintiff in 1804, was estimated at $3000. The cases cited by the defendant show, that if the agent on a journey on business of his principal, is robbed of his own money, the principal is not answerable. I agree to it, because the car- rying of his own money was not necessarily connected with the business of his principal. So if he receives a wound, the principal is not bound to pay the expenses of his cure, because it is a personal risk which the agent takes upon himself. One of the defendant's cases was, that where the agent's horse was taken lame, the principal was not answerable. That I think would depend upon the agreement of the parties. If A. undertakes, for a certain sum, to carry a letter for B. to a certain place, A. must find his own horse, and B. is not answerable for any injury which may befall the horse in the course of the journey. But if B. is to find the horse, he is responsible for the damage. In the case before us, the plaintiff has suffered damage without his own fault, on account of his agency, and the jury have indemnified him to an amount, very little if at all exceeding the property in his hands, with interest and costs. I am of opinion, that the verdict should not be set aside. Yeates, J. I see no reason whatever for retracting the opinion I had formed on the trial, that where an agent has acted faithfully and prudently within the scope of his authority, he is entitled to protection from his constituent, and compensation for compulsory payments ex- acted against him under the form of law, for the transactions of his agency. The flagitious conduct of Christophe, President of Hayti, com- pelled the litigant parties under his savage power into a trial by battle, 720 RIGHTS OF AGENT AGAINST PBINCIPAL. in order to decide their civil rights. lie influenced the civil tribunal of the first district of the province of the North, sitting at the Cape, " to set aside a former judgment rendered by the tribunal of commerce and of their own Court, and to condemn D'Arcy," according to the language of the sentence, "to pay to Thomas Richardson $3000, for so much he had engaged to him to pay for Suckley & Co. for merchandise, which the latter had delivered to him as belonging to James Lyle, whom the said D'Arcy represented, for which the tribunal do reserve to D'Arcy his rights, that he may prosecute the same, if he think proper against the said Lyle or Sucldey," &c. The defendant appointed the plaintiff his attorney, to settle and col- lect a debt in a barbarous foreign country. The plaintiff has transacted that business with fidelity and care, and remitted the proceeds to his principal. He risked his life in defence of the interests of his consti- tuent, under the imperious mandate of a capricious tyrant, holding the reins of goverment. He has since been compelled by a mockery of justice, to pay his own moneys for acts lawfully done in the faithful dis- charge of his duties as an agent ; and I have no difficulty in saying, that of two innocent persons, the principal and not the agent should sustain the loss. In Leate v. Turkey Company Merchants, Tothill, 105, it was decreed, that if a consul beyond sea hath power, and do levy goods upon a pri- vate merchant, the company must bear the loss, if the factor could not prevent the act of the consul. The decree is founded in the highest jus- tice, and its reason peculiarly applies to the present case. D'Arcy was doomed by the cruel order of an inexorable tyrant, either to pay the $3000, or in his hated presence to fight his antagonist until one of them should fall. Upon the whole, I am of opinion that the motion for the new trial be denied. Brackenridge, J. Whatever conditional stipulation it might have been necessary for D'Arcy, the agent of Lyle, to have made, provided that stipulation was not so much against the interest of Lyle as to come under the denomination of an unreasonable stipulation, and to consti- tute a mal-agency respecting the subject of the agency, Lyle the prin- cipal, must have been bound by it. The giving bond to produce the power of attorney, in order to receive the goods of Lyle, out of the hands of Suckley, which would seem to have been detained under the claim of Richardson, might be deemed prudent; and had the power of attorney not have been produced, owing to no fault of D'Arcy, but to d'arcy v. lyle: Bradford v. kimbkrly. 721 accident, or the impossibility of getting it in time, Lyle might be con- sidered as bound to pay the bond, as the goods had been disposed of for his benefit. But the power of attorney was received, and the bond satisfied ; and we hear no more of this. It is on an entire new ground, that a claim was advanced by Richardson against D'Arcy as the agent of Lyle. It is that of an agreement or stipulation by him (D'Arcy), that in consideration of having obtained a delivery of the goods of Lyle, he would pay the debt due by Suckley, and in whose possession the goods of Lyle were, a debt due and owing from Suckley to him (Richardson) as agent for a house in Charleston. Had he made such agreement, and it should turn out that this debt was beyond the value of the goods received for the use of Lyle, it would be an unfaithful, being an impro- vident, agency ; and he would not be considered as entitled to recover from Lyle, more than the value of the goods which he had received, and the money arising from the sale of which had come to the hands of Lyle. But D'Arcy admits that he had made no such agreement, or stipulation whatever, on behalf of Lyle, in order to receive his goods, or to have them delivered to him. How then can he claim against Lyle? It is alleged to be on the ground, that Richardson had compelled him from a fear of life to acknowledge such agreement. It was on the alle- gation of Richardson, that Christophe, the master of the gang, inter- fered, and compelled D'Arcy to acknowledge such agreement. He compelled, him to come into a court of his, who had given judgment to the contrary, and confess such agreement ; in other words to retract a denial of such agreement, and give his court colour for reversing the judgment before given. This cannot be distinguished from a compul- sion without colour, to retract a denial, and confess an agreement. It is the same thing as if Richardson and Christophe, out of doors had compelled through a fear of life D'Arcy, not only to pay money, but to acknowledge that he had agreed to pay it. A. a common carrier has carried the money of B., to pay C. He is met by a gentlemanly foot- pad, who says that the money is his so carrying to C. It is denied by A. who is suffered to go on. But on his return he is again accosted by the same footpad, who alleges that he agreed to pay him that sum or a greater, on condition that he should be sufi'ered to go on and carry to C. It is denied, but the master of the gang interposes, and says he shall acknowledge the agreement. The acknowledging the agreement never made, is but the sub modo of the robbery. It is but the robbery of the carrier, under a pretence of having carried the money of B., which he the footpad alleges, belonged to him, and which he the carrier VOL. I. — 46 722 RIGHTS OF AGENT AGAINST PRINCIPAL. had agreed on his first journey to be the fact, and now on his return should pay him, and even a greater sum. In this case, it would appear to be as perfectly a pretence, as that of the wolf in the fable, accusing the lamb of disturbing the stream. Why is it that a carrier must be answerable for goods notwithstanding a robbery? It is the policy of the law, founded on the possibility of a carrier procuring himself to be robbed. Will not the same policy be in the way of an agent recovering for an alleged robbery; robbed more especially not of the goods in his possession, but of other goods, on account of having had these ? Set- ting such a principle, would render it unsafe to have an agent at all. There are two things or circumstances which take this case entirely out of all reason and justice ; the remaining in the country after the agency as to the principal had been closed, and it being the act of the agent himself that gave colour to the compulsion. He was put in fear, fear of his life; fear that would excuse or justify a constant and resolute man ; that is clear. But it is his misfortune, and I can consider Lyle under no obligation to indemnify him for the loss. His redress, if he shall ever be able to obtain any, must be against the spoiler, or those for whom he may have acted, or wlio may have obtained the advantage of his wrong. There is a third circumstance in this verdict, which would justify a new trial ; the sum given being beyond the value of the goods or money, even with interest, which D'Arcy the agent, alleges to have been paid, on account of obtaining possession of the property of Lyle. But on the two first grounds, I do not think him entitled to recover. I see nothing of an appeal from a proceeding under a claim made or in- terposed against the goods of Lyle. Nor am I able to see anything like a growing out of the claim : it may be said to be engrafted on it, or adscititious to it, or springing up with it. But the act of D'Arcy him- self, confessing an agreement, is the only thing that can connect ; and this he admits did not exist. His agency for Lyle, might be said to be the occasion, but could not be considered the cause of his loss. But it was rather the occasion of the pretence that was set up, and to which D'Arcy himself gave sanction, and if he has saved his life by that, he must keep his life as that for which he sustained the loss. It is not more nor less, than if an agent, having resisted a claim, set up against his quondam principal, and to avoid a challenge, should come into one of our courts, and move to have the judgment in his favour set aside, and to confess a judgment against his principal, which if allowed, might be to any amount. It is a question with moralists, whether it is lawful for the sake of life or property to depart from truth, Propter vitam, vivendi perdere canaas. d'arcy v. lyle: bbadfoed y. kimberly. 723 Where a person had a right to expect the truth, it is not lawful, how- ever under circumstances it may be excusable. But for one to evade a risk by departing from the truth, and to attempt to throw the loss upon another person, is totally inadmissible ; it cannot be done. If any argu- ment could be drawn from the circumstance of the master of the gang^ Christophe, being a principal as to the force, it must be evident that it might be owing to the indiscreet expressions respecting Christophe, and his influence upon the administration of justice in his courts, that in- duced him to interpose. This was the act of Richardson. I am there- fore of opinion for the defendant. New trial refused. BRADFORD v. KIMBERLY AND BRACE. In the Court of Chancery of New York. JUNE 18th and 19th, and SEPTEMBER 28th, 1818. [reported, 3 Johnson's chancery, 431-435.] Where the several joint owners of a cargo appoint one of the part- owners their agent, to receive and sell the cargo, and distribute the proceeds, he is entitled, under such special agency, to a commission, or compensation, for his services, as a factor, or agent, in the same manner as a stranger: and as such factor, or agent, he may retain the goods or their proceeds, as security, not only for his advances, disbursements, or responsibilities, in regard to the particular property , hut for the balance of his general account. In August, 1813, the defendants, Abijah Weston, Benjamin Merritt, and others, were joint owners of a vessel and cargo fitted out from New Haven, Connecticut, to Porto Rico, where the cargo was sold, and the proceeds invested in a cargo of coffee, &c., shipped on board the brig Edwardo, consigned to P. Harmony, of Newport, where it arrived. P. Weston owned ihxe^- eighths of the return cargo, and previous to its arrival at Newport, sold and assigned his interest to Ralph Bulkley, who, after the arrival of the cargo, to wit, on the 21st of March, 1814, assigned the three-eighths thereof, so purchased by him of W., to the plaintiff", to whom he was largely indebted, as a security for the debt. 724 RIGHTS OF AGENT AGAINST PRINCIPAL. and in trust to pay John Clapp $1,500, and to pay the defendants $1,220, and the residue to the plaintifif. The defendants paid to the plaintiff $1,450, which he paid over to Clapp. On the 22d of March, 1814, the said return cargo came into the possession of the defendants, who, on the 25th of March, 1814, received notice of the assignment of Weston's share, by R. Bulkley, to the plaintifi", but refused to deliver it. The share of W., so assigned to Bulkley, and by him to the plaintiff, amounted to $5,800. The accounts between the defendant and the other owners were adjusted and paid by the defendants, who have in hand $3,000 of the proceeds of W.'s share, which the plaintiff claimed under the assign- ment to him. The bill prayed that the defendants might account for the property so received by them, and assigned to the plaintifi", and may be decreed to pay over the balance to him, &c. The answers of the defendants admitted the joint shipment and joint concern in the return cargo of the Edwardo, and that W.'s share was 600 parts of 1,634, and was so finally adjusted. That the cargo was consigned to S., the master of the brig, who, on his arrival placed it in the hands of Harmony. That the cargo arrived at Newport, in Decem- ber, 1818, and the owners, in January, 1814, agreed to make the de- fendants their factors, agents, or commission merchants, for the disposal thereof, in New York ; and S. and H. were directed to deliver the same to the defendants accordingly. That a greater part of the cargo came into the hands of the defendants, on the 19th of March, 1814, not on the 22d of March, as the plaintiff had alleged ; and another part came to New York, to the defendants on the 9th of May, following. That, on the 25th of March, 1814, notice was received by the defendants of the assignment by Bulkley to the plaintiff. That the net amount of the share so assigned is $3,946 60. That, previous to any knowledge of the assignment, Bulkley was indebted to the defendants : and after the cargo was received by them, they lent him their notes, which they after- wards paid, &c. ; that, on the 29th March, 1816, they paid to the plain- tiff $1,736. That R. Bulkley is indebted to the defendants, for a balance of accounts, in the sum of $2,000 ; and that he failed on the 21st of March, 1814, and became insolvent, which was known to the plaintiff before the assignment to hira. The defendants insisted, that their advances and responsibilities for Bulkley having been made after the cargo came into their hands, they had a lien on the proceeds, for their security, for the balance due them from B., and which could not be defeated or impaired by the assignment to the plaintiff. Several witnesses Avere examined in the cause, which came on to be heard in June last. d'aroy v. lyle: Bradford v. kimberly. 725 Wells, for the plaintiff, cited the following cases : Rushforth v. Had- field, 7 East, 229 ; Hussey v. Christie, 9 East, 426 ; Houghton & al. V. Mathews, & al., 3 Bosanquet & Puller, 494 ; id. Richardson v. Goss, 156 ; Abbot on Shipping, 96 ; Doddington v. Hallet, 1 Vesey, 497 ; Watson on Partnership, 139; Weston v. Barker, 12 Johnson, 276. Boyd, for the defendants, cited Comyn's Digest, tit. ' Factor ;' Drink- water V. Goodwin, Cowper, 251 ; Hammond v. Barclay, 2 East, 227 ; Goden v. London Insurance Co., 1 Burrow, 489. The cause stood over for consideration until this day. The Chancellor. It appears in proof that the owners of the cargo of the Edwardo, in January, 1814, appointed the defendants their agents to receive and sell the cargo, and distribute the proceeds. The defendants were at the same time part owners ; but this special agency was altogether distinct from their ordinary powers as part owners, and they were to be considered, for this purpose, as agents for the company ; and in that character they were entitled to their commissions, or com- pensation, in the same manner as any other persons, being strangers in interest, would have been entitled under such an agency. In the case of joint partners, the general rule is, that one is not entitled to charge against another a compensation for his more valuable or unequal ser- vices bestowed on the common concern, without any special agreement ; for it is deemed a case of voluntary management. This is the doctrine in the cases on this point.(l) But where the several owners meet, and constitute one of the concern an agent, to do the whole business, a com- pensation is, necessarily and equitably, implied in such special agree- ment, and they are to be considered as dealing with a stranger. The defendants are, consequently, to be viewed as commission merchants to receive and sell the return cargo, and they are entitled to the rights belonging to that character. If this conclusion be correct, there is then no doubt that the claim on the part of the defendant must be admitted. It is well settled, that a factor may retain the goods or the proceeds of them, not only for the charges incident to that particular cargo, but for the balance of his general account; and this allowance is made out not only while the goods remain in specie, but after they are converted into money. This was the doctrine declared in Kruger v. Wilcox, Ambler, 252, and after- (1) Thornton v. Proctor, 1 Anstruther, 94 ; Burden v. Burden, 1 Vesey and Beames, 170 ; Franklin v. Robinson, 1 Johnson's Chancery, 157. 726 RIGHTS OF AGENT AGAINST PRINCIPAL. wards, by Lord Mansfield, in Godin v. London Assurance Company, 1 Burrow, 494, and by Mr. J. Buller, in Lickbarrow v. Mason, 6 East, 23, in notis. And it is further settled, that this lien applies not only for the amount of the money actually disbursed for the necessary use of the property in hand, and for acceptances actually paid, but for the amount of outstanding acceptances not then due. The factor may retain the goods, or the money into which they have been converted, until he is indemnified against the liability to which he had subjected himself.(l) This is very equitable doctrine, especially when the accept- ances and responsibilities were assumed, or necessarily presumed to have been assumed, upon the credit of the property in his possession. In this case the accounts annexed to the answers are admitted to be correct ; and it appears by them that at the date of the assignment from Bulkley to the plaintiff, he was indebted to the defendants for moneys advanced, or responsibilities assumed, and afterwards discharged by the defendants, to more than his share of the net proceeds of the goods committed to the disposal of the defendants, after crediting the plaintiff with what he has since received under the assignment. There was nothing due to the plaintiff when he filed his bill. It will be readily admitted, that the plaintiff took no other or greater right under his assignment, than what Bulkley possessed when he made it. It was made subject to all existing equities. Bill dismissed, with costs. The rights of an agent in relation to his principal, are : I. To indemnity. II. To Compensation, which includes Commissions. III. And for the security of the general balance of a factor, and of some other kinds of agents, the law gives a general lien. I. Indemnity. D' Arcy v. Lyle is a celebrated case on the point, that a prin- cipal is under an implied obligation to indemnify his agent for all damages incurred by him, without his fault, in the course of the agency, and in con- sequence of it ; and it has often been confirmed. [It matters not, say the Judicial Council and Lords of Privy Council in a recent case, where an agent was seeking to recover indemnity for a judgment recovered against him in defence ;('2) whether the judicial sentence, under which an agent be made to pay, be " right or wrong," if the agent has thereby sustained a loss, on behalf of the principals, they must bear the loss. All that he need shew (1) Hammonds v. Barclay, 2 East, 22'r j Drinkwater v. Goodwin, Cowper, 261. (2) Frixione c. TagUaferro, 36 Bng. Law and Eq., 26. D'ARCY V. LYLE: BRADFORD V. KIMBERLY. 727 is that the Inss arose from the fact of the agency, that he was acting within the scope of his authority and that the damage was not attributable to any fault of his own. Neither is it important that he exceeded his instructions if the excess was expressly waved by the principal.] In Elliott v. Walker, 1 Rawle, 126, a foreign factor having sold, on credit, goods consigned by two principals, pro- cured, from a commercial house in the foreign port, advances on an assignment of the debts due by the purchasers, which advances he remitted to his princi- pals ; subsequently, in consequence of a destructive fire, several of the pur- cliasers failed, and the house which made the advances, having demanded repayment from the principals, without success, attached the property of the factor after his death, and recovered the amount of their claims with costs. 8uits were brought by the factor's administrators, against both principals, to recover the amount so paid, or the portion due by each of the consignors, with interest, and a proportion of the expenses of the attachment suit: which it was decided they were entitled to do. "There is no doubt," said Rogers, J., in pronouncing judgment, "an obligation on the priacipal (which the civilians call ohligatio mandato contraria) to repay his agent such sums of money, as the latter has necessarily expended in the execution of his commission : and to indemnify him for losses sustained by reason of his employment. To give rise to this obligation, it is necessary that the agent should h'lve sustained some loss, on account of the agency, ex causa mandati, and that the loss should not have been caused by the agent's fault. These principles are recognised to the fullest extent in D' Arcy v. Lyle, 5 Binn, 4-11." [And see Rich v. Monroe, 14 Barb,, tj02.] In Ramsay v. Gardner, 11 Johnson, 439, the defendant had applied to the plaintiff to inform him how he should draw £100 from Scotland, and the plaintiff advised him to draw a bill for the amount in favour of the plaintiff which he would negotiate, and on advice being received of its payment, would pay the amount to the defendant. This was accordingly done, but the bill was returned protested for non-payment, and the plaintiff as endorser had to pay 20 per cent, damages, with the charges of protest : and in an action brought, he was held entitled to recover this 20 per cent, damages with interest, and the expenses on the protest (including postages) ; on the ground that the plaintiff, in the negotiation of the bill, acted as the agent of the defendant without any expected benefit to himself, and that the responsibility which he had incurred as endorser was solely for the accommodation of the defendant. In Slocldng V. Sage, 1 Connecticut, 519, the plaintiff, as master of a schooner of the defendants, and their agent, with orders to make as good a voyage as he could for the owners, entered into a contract in a foreign port with K. & Co., for the employment of the vessel, under which they advanced to him a sum of money for the purchase of a cargo to be at their risk ; afterwards the plaintiff was attached by K. & Co. on the said contract but obtained final judgment in his favour'against them, hut in defending the suit, expended about $500 for fees of counsel, interpreter, and notaries, and $300 in obtaining testimony, &o. ; and he brought this suit to recover the amount of the costs, charges, and dam- ages sustained by him on account of that contract, alleging a promise to indemnify ; Swift, Ch. J., with whom a large majority of the judges agreed, was of opinion that the plaintiff was entitled to recover on an implied promise j and he said, that " where an agent, acting faithfully, without fault, in the proper service of his principal, is subjected to expense, he ought to be reim- 728 RIGHTS OF AGENT AGAINST PEINCIPAL. bursed. If sued on a contract made in the course of his agency pursuant to his authority, though the suit be without cause, and he eventually succeeds, the law implies that the principal will indemnify him, and refund the expense. For this, he can maintain an action of indebitatus assumpsit ; and the proof of such facts will be sufficient to warrant the jury to find the promise." Puuell V. Trustees of Newhuryh, 19 Johnson, 284, is similar to this case, excepting that here the action by which the agent had beeif put to expense, was an action of tort. The plaintiffs had been*rustees of the village of Newburgh, being compelled by law to take that office upon them ; and after they wore nut of office, an action had been brought against them by one G. for special damage arising from their having discontinued a highway and a sluiceway in the village, in which judgment was given in their favour, but in their defence they had expended a large sum of money over and above the taxable costs, for counsel fees, expenses of witnesses, &c., and to recover this, the present suit was brought against their successors in office, who had notice of the suit and of the amount expended by the plaintiffs, in defence of it. It was decided that the plaintiffs, having been sued for an act done by them as the agents and trus- tees of the corporation, in the course of their agency, and pursuant to authority, and having acted faithfully and without fault, were entitled to recover for everything reasonably and necessarily disbursed about their defence, and which could not be included in the taxation of costs in the judgment recovered against G-. : and Spencer, Ch. J., remarked, that the 'distinction was between those cases which arise naturally out of the agency, and such as are casual, or oblique, not proceeding directly from the execution of the mandate ; and that it is upon this principle, that the doctrine of contribution towards a general average stands ; where the owner of a vessel cuts away a mast to avoid impend- ing ruin, and the owners of goods are personally liable for the amount of con- tribution, on the ground that the act was done, by the general agent, for the safety of the property. In this case, it will be observed, the action against the agent, though in tort, had been unsuccessful ; but the right of indemnity is the same where damages have been recovered against the agent in an action of tort for something done by direction of the principal, if the act of the agent was required by his duty, and was without knowledge or intention of wrong; and on this ground rests the implied obligation of a party to a suit to indemnify an officer acting by his directions, for damages recovered against him in trespass. (1) The case of Green and others v. Goddard, 9 Metealf, 212, illustrates the prin- ciple of indemnity arising out of the relation of agent and principal, in a very interesting manner ; and this decision, reported with faultless and elegant dis- tinctness, from the ability with which the most delicate principles of mercan- tile law are dealt with and applied, in a case of some intricacy, is eminently creditable to the commercial jurisprudence of this country. In this case, Messrs. W. & Co. of London, having given the defendant a letter of credit, authorizing the plaintiffs to draw at Canton on them, for account of the defend- ant, who engaged to remit funds to London, in time to provide for the bills, the defendant sent the letter to the plaintiff's house at Canton, and the plain- tiffs, as agents of the defendant, drew accordingly in their own names, and disposed of the bills, and invested the proceeds for the benefit of the defendant. W. & Co. accepted the bills, but, before their maturity, had stopped payment. (1) Gower v. Emery, 18 Maine, 79, 83. d'aecy v. lyle: Bradford v. kimberly. 729 B. & Co., of London, then took up the bills, supra protest, for the honour of the plaintiffs as drawers, under an arrangement with the plaintiffs' house at Boston, by which certain credits of the plaintiffs with B. & Co., against which the plaintiffs might have drawn, were appropriated to the purpose, covering the liability in part, and to cover the residue, funds, purchased at a high premium of exchange, were remitted by the plaintiffs from Boston. Afterwards, W. & Co., with funds remitted by the defendant, paid B. & Co. the amount of the bills with interest, notarial expenses, and banker's commissions, and took them up, and thus all liability on the bills was discharged ; but the plaintiffs brought this suit, upon the relation of principal and agent, for indemnity for damage occasioned by the failure of the defendant to provide funds for the bills at matu- rity, according to his engagement; which damage was alleged to consist in, 1. The high premium of exchange paid by them in sending funds to London to take up the bills supra protest, and 2, the loss of the profits of exchange which they might have made in drawing on their credits with B. & Co. As to the latter, it was decided to be speculative damage, which the plaintiffs were not entitled to recover for ; but they were decided to be entitled to recover for the former, because, as drawers, they had a right to make provision for taking up the bills after dishonour, to sustain their commercial credit, and prevent the heavy damage consequent on a return of the bills, which would have exceeded the premium of exchange now demanded; and therefore, that the relation of the parties was that of an agent seeking to recover an indemnity from his principal, for a loss sustained by him in the faithful discharge of his agency. The Court observed, that the expense in question, incurred by the plaintiffs, arose from drawing the bills in their own names, which they were obliged to do in executing, as agents of the defendant, the authority given by W. & Co. ; and that, " Where an agent, in pursuing the instructions of his principal, and acting within the scope of his authority, becomes personally liable for the per- formance of the contract he makes for his principal, and without which personal liability, the orders of the principal cannot be executed at all, or not so well executed, and this is known by the principal at the time of giving his instruc- tions and creating the agency, if a loss occur to the agent, it is most clear that he can look to the principal for indemnity for the damage sustained by him. And this," it was added, " rests upon those sound principles of common sense and mutual justice in the transaction of business, upon which the law mer- chant, in its various branches, is founded; and which law, as it regulates and prescribes the rights and duties of principal and agent, alike furnishes protec- tion to the agent, when he suffers loss through fidelity to his employer, and gives redress to the principal who sustains an injury from the breach of orders or neglect of duty by the agent." [However, though a factor is undoubtedly entitled to indemnity, he cannot indemnify himself out of his principal's property by selling it in unusual and irregular ways : and hence even if by so doing he would reimburse his own charges and advances, he cannot sell his principal's goods in payment of an antecedent debt of his own.](]) II. Oompensation. Every agent, employed by another, is ordinarily entitled to a reasonable compensation for his services ;(2) but negligence or breach of (1) Benny v. Rhodes, 18 Missouri, 151; Same v. Pegram, Id., 191. (2) See Bradford v, Kimberly ; Walker et al. v. Robert Smith, 1 Washington C. C. 152, 154; 730 RIGHTS OF AGENT AGAINST PRINCIPAL. orders will abate or bar the claim. (1) The compensation of a factor or other commercial agent, consists by the usage of trade in commissions, which are de- fined to mean " an allowance or compensation made upon the sale or purchase of goods ;"(2) and they accrue immediately upon effecting the sale ;(3) these are due to such commercial agents by the usage of trade ;(1) and the right to them is chiefly regulated by usage; (5) but usage cannot entitle a factor to commissions on the payment of his own debt. (6) III. For the securiti/ of his claims as agent upon the principal, a factor has a general lien on the principal's goods which are in his possession as factor. There are three kinds of lien mentioned in the books. 1. A lien at common law, which is a right to retain a specific article, until its price, or a charge respecting it, is paid, and the true character of this lien at common law, as stated by Serjt. Manning, in a note to Barnett v. Brandao, 6 Manning & G-ranger, 658, is, that as the title or one party to demand posses- sion, and of the other party to demand payment, are contemporaneous, the owner has no right to possession until he has tendered payment. (7) 2. A lien by special contract, express or implied. 3. The commercial lien of factors, bankers, and insurance brokers, which is a general lien, and which, though originally established by custom and usage of merchants, is now settled as a part of the law merchant, and the general law of the land. (8) Such a lien exists also, in favor of wharfingers, but not of ware- housemen :(9) an attorney or solicitor, it has been held in Mississippi, has a particular lien on the fund recovered, and a general lien on papers in his hands. (10) But it is only the factor's lien which it is proposed to consider at present. This general lien is defined to be "a right of the factor to hold all the goods of his principal which come into and remain in his hands as such factor, until the general balance, that is to say, all debts which his principal owes him, and which have arisen and become payable in the course of his business as factor, have been paid ;" " whereas a particular lien is confined to the debt due for the specific article ;" per Cowen, J. ;(11) but it does not apply to debts incurred on other than the agency acoount.(12) This lien exists by law in favour of factors Gregory ti. Mack, 3 HlU's N. T., 380, 384; Tevebaugh i>. Reed, 5 Monroe, 179 ; Welsh v. Dusar, 3 Binney, 329. (1) Dodge V. Tileston, 12 Pickering, 328 ; White v. Chapman, 1 Starkie, 91. (2) Miller v. Livingston, 1 Caines, 349, 367; see Stevenson v. Maxwell, 2 Sandford's Chan- cery, 274, 284. (3) Solly 11. Weiss, 8 Taunton, 371. (4) Poag, Bx'or, v. Poag, 1 Hill's Chancery, 285, 287; Lever v. Lever, 2 Id., 158, 166. (5) Clark v. Moody et al., 17 Massachusetts, 145, (6) Pavret et al. v. Perot et al , 2 Yeates, 185. (7) See Brooks v. Bryce, 21 Wendell, 14, 17, and Steinman i>. Wilkins, 7 Watts i Ser- geant, 466. (S) See Barnett 1). Brandao, 6 Manning k Granger, 630, 665; Moody v. Wehster, 3 Picker- ing, 424, 426; Neponset Bank v. Leland, 5 Metoalf, 269; McKenzle v. Nevius, 22 Maine, 138; Bunk of the Metropolis v. New England Bank, 1 Howard's Supreme Court, 234; KoUock and others V. Jackson, 5 Georgia, 163, 159; Ru.»seU v. Hadduck, 3 Gilman, 233, 238. (9) See Brooks „. Bryce, 21 Wendell, 14, 17, and Steinman v. Wilkins, 7 Watts Marshall, 617; Bradley et al. v. Lowry, 1 Speers' Equity, 3, 13; In the Matter of Catharine Roberts's Will, 8 Paige, 519, 525; Suarez v. Mayor, Ac., of New York, 2 Sandford, 17+, 177; Sedgwick v. Ashburner, 1 Bradford, 105, 106; The Public Administrator v. Hughes, Id., 126 ; Harvey v. Richards, 1 Muson, 381, 408; Thomas and "Wife V. Tanner, 6 Monroe, 52, 58 ; Dorsey's Ex'rs, Ac, v. Dorsey's Adm'r, 5 J. J. Marshall, 280 Snced v. Ewing et ux.. Id., 460, 479; Barnes* Adm'r v. Brasbear et al., 2 B. Monroe, 380 Atchison's Heirs v. Lindsey et al., 6 Id., ,86, 89 ; Varner, Ex'r, v, Bevil et al., 17 Alabama, 286 Rue High, Appellant, 2 Douglass, 515, 522; De Sobry v. De Laistre, 2 Harris & Johnson, 191, 224; Leake v. Gilchrist, 2 Devereux, 73. (2) Harvard Collage v. Gore, 5 Pickering, 370 ; Isham v. Gibbons, 1 Bradford, 70. (3) Thomson v. The Advocate General, 11 Clarke & Finelly, 1. (4) Cadwalader v. Howell A Moore, 3 Harrison, 138 ; The State v. Hallett, 8 Alabama, 159. (5) Moore v. Wilkins, 10 New Hampshire, 452, 455. (6) Shattuek v. Maynard, 3 Id., 123. (7) Lessee of Cooper v. Galbraith, 3 Washington, 546; Read v. Bertrand, 4 Id., 514. (8) The Ship Ar,n Green, 1 Gallison, 275, 285; The Brig Joseph, Id., 545, 551 ; Wilde" et al. i;. Parker, 3 Sumner, 593; Livingston and Gilchrist v. Mary'd Ins. Co., 7 Cranch, 506, 642 ; The Venus, 8 Id., 253, 278, Ac; Elbers i,. United Ins. Company, 16 Johnson, 128. GUIEE V. o'daniel. 743 aod these various words, appear to have received in the foregoing cases, the , same construction that would have been applied to domicil, in reference to the i subject then in question, had it been used, though, perhaps, not the meaning \ of domicil used in respect to succession of property and other subjects depending '. on national consideration only. In some later cases in Massachusetts and New '. Hampshire, the terms 'Resident,' 'Inhabitant,' 'having a dwelling or home,' , &c., used in regard to voting, the settlement of paupers, and taxation, are de- clared to be synyonmous with domicil as understood at common law. (1) In Lessee ofHyllon v. Brown, 1 Washington, C. C, 299, 314 ; 3 Id. 555, inhabitant, ' iu a proclamation, was interpreted as referring to domicil. So in New Jersey, ^ the word has been treated as one having a legal definition, and as practically ' synonymous with a person having his domicil. (2) So in the Supreme Court of New York, where this subject was in one case (3) extensively examined, it was held that the terms legal residence, inhabitancy, and domicil, mean the same thing. In Isham v. Gibbons, 1 Bradford, 70, 84, where the cases were reviewed, it was said, that " these expressions should be construed in connexion with the matter to which they are applied. In statutes designed to give credi- tors prompt remedies against absent debtors, it is just to consider the word resident as meaning an actual resident merely In provisions relating, however, to testamentary cases, which depend upon the law of domicil, it is equally ra- tional to construe the term in consonance with the established law, rather than indulge the supposition that the Legislature intended to overrule the law of domicil."(4) The definition of domicil is confessed to be uncertain. In Somerville v. Ld. Somerville, 5 Ves. 750, 755, 789, the definition of the civil law, " Ubi quia Larem, rerumque ac fortunarum, suarum summ,am constituit," was cited j but the Master of the Rolls (Sir R. P. Arden), censured it as very vague and difficult to apply, and said that in his opinion Bynkershoek was very wise in not hazarding a definition. Another description has been cited from Dig. Lib. 50, tit. 16, 1. 203 : " Earn, dom,um unicuique nostrum debere exisiimari, ubi quisque sedes el tabulas haberet, suarumque rerum constitutionem fecisset." In Putnam, V. Johnson, et al., 10 Massachusetts, 488, 495, 501, Vattel's definition was cited, " the habitation fixed in any place, with an intention of always staying there ;" but Parker, J., observed that it was too strict, if taken literally, to govern in a question relating to voting, and that probably Vattel's meaning was, that the habitation fixed in any place, without any present intention of removing therefrom is the domicil ; at least, that this definition is better suited to the circumstances of this country. "No one word," says Griee, J., "is more nearly synonymous with the word domicil than our word " home. "(5) (1) Abington v. North Bridgewater, 23 Pickering, 170, 176 ; Blanchard v. Stearns et ale,, 5 Metcalf, 298, 304; Opinion of Judges, ante, 738; Moore v. Williins, 10 New Hampshire, 452. (2) The State ». Ross, 3 Zabriskie, 527; and see Cadwalader ». Howell, 3 Harrison, 138; and see Lamb «. Smythe. 15 Meeson & Welsby, 433, 434. (3) Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 522. (4) See Quinby v. Duncan, 4 Harrington, 383; and Brnndred v. Del Hoyo, Spencer, 328, 333 ; Bartlett v. Brisbane, 2 Richardson, 489. (5) White B. Brown, 1 Wallace, Jr., 262; see the definitions collected in White v. Brown, 1st Wallace, Jr., 250 and 261 ; Crawford v. Wilson, 4 Barbour's Supreme Court, 505, 522 ; and see Home ti. Home, 9 Iredell, 99, 107, and see Heirs of HoUiman v. Peebles, 1 Texas, 673, 688. 744 D O M I C I L. / In Green v. Wyndham, 13 Maine, 225, 228, Weston, C. J., said, " Whoever removes into a town, for the puppose of remaining there for an indefinite pe- riod, thereby establishes his domicil in that town. It is not necessary that he should go with a fixed resolution to spend his days there. He might have in contemplation many contingencies, which would induce him to go elsewhere. Some persons are more restless in their character, and migratory in their habits than others, but they may and do acquire a domicil, wherever they establish themselves for the time being, with an intention to remain until inducements may arise to remove." Domicil, as is remarked in the principal case, does not depend upon the mode of living, whether at housekeeping or at lodgings Waterborouyh v. Newfield, 8 Greenleaf, 203 ; and in Bradley et al. v. Lowry 1 Speers' Equity, 8, 16, it was supposed that a national domicil, that is a domi cil in a state, for the purpose of being governed by its law in respect to testa mentary succession, might be acquired without any fixed place of residence in the state, where the previous domicil had been unequivocally abandoned. But if the maxims be sound, that for some purposes, every person has a domicil somewhere, and that for the same purpose, a person can have but one domicil, the definition of domicil is, practically, of less importance ; for the determination of it does not depend upon the presence of any particular circum- stance, but upon a comparison and preponderance of facts and circumstances. The domicil of a person is in that place which has more of the qualities of a principal and permanent residence, or has a greater pretension to be considered such, than any other place. Accordingly, a very interrupted residence, or even a temporary stay, may constitute a domicil, when no other place has so good a pretension to be the domicil. Thus in a case of a fisherman, a single man, who in summer lived in his boat, and in winter lodged with a family in a town, the domicil, in respect to settlement, was held to be in that town;(l) and in another case, where a clergyman had abandoned his former dwelling-place in H., with no intention of returning there, and had taken up his personal residence in M., upon an invitation to preach there for one year, as he had no home elsewhere to return to, and, so far as appeared, no intention of goin^ to any particular place at the expiration of that time, it was decided that his domicil was in M. for the purpose of taxation. (2) For practical purposes, it is enough, in general, to observe, that domicil is legal residence ; that it is a question of fact and of intent ; and that, if these elements ar-3 found, the reference of the domicil to one place or to another, depends upon the comparative weight of the circum- stances. "It depends," said the Chief Justice, in Thorndike v. City of Bosto7i, 1 Metoalf, 242, 245, " upon the preponderance of the evidence in favor of two or more places ; and it may often occur, that the evidence of facts tending to establish the domicil in one place, would be entirely conclusive, were it not for the existence of facts and circumstances of a still more conclusive and decisive character, which fix it, beyond question, in another. So on the contrary, very slight circumstances may fix one's domicil, if not controlled by more conclusive facts fixing it in another place." " It depends," said the same judge, again, in Abirujton V. North Bridgewater, 23 Pickering, 170, 178, " not upon proving particular facts, but whether all the facts and circumstances taken together, tending to show that a man has his home or domicil in one place, overbalance (1) Boothbay v. Wisoasset, 3 Greenleaf, .S54. (2) Moore v. Wilkins, 10 New Hau;pshire, 452. GUIEE V. o'daniel. 745 all the like proofs, tending to establish it in another ; such an inquiry, there- I fore, involves a comparison of proofs, and in making that comparison, there are some facts which the law deems decisive, unless controlled and counteracted j by others still more stringent." Of course, in considering a question thus ' depending on facts and intent, the acts, the motives, the state of the family and fortune and the health of the party, may all have to be taken into the account.(l) [There are, however, certain criteria of domioil often referred to, and which it may be well to state. They are of more or less Weight as they are controlled or not controlled by opposing facts — sometimes distinctly and separately exhi- bited, and sometimes intercurrent with each other — which are of equal or more significance. The question, in all difficult cases of domicil, is usually a question ^ of combined effect of the different facts. Throughout these, and throughout { the whole subject, however, the distinction between national domioil, that is, the ; being invested with a national character in the view of other nations, as for pur- \ poses of succession to personal property, &c., and the domestic dom'cil in relation to other places within the same sovereignty, ought to be kept in mind, as it '. cannot be pronounced to be quite certain that all the principles belonging to the ■ former apply to the latter. The one depends on the law of nations, and tbe\ other on the municipal law of the particular country : and though the same ) reasons, perhaps, exist in both cases, yet, as there is some distinction in the origin of the principles, there may be a difference in their practical result. We may mention among the criteria — (a) The place of birth, childhood, connexions, education. The natural domi- \ oil of a man is where his parents resided, and where he was born and first ' brought up. The place of birth alone does not necessarily become a person's domicil. A) man may be born at a particular place and away from home by mere accident./ It would be an " enormous proposition," said Lord Thurlow, that a person is ; to be held domiciled where he drew his first breath, without adding something | more unequivocal; .but it is one circumstance which may add to other circum- stances, and in conjunction with the place of education and connection, it has great weight. (2) Where the case is in equilibrio, it might turn the scale. (3) ! ^ The effect of this natural domicil, or of a domioil akin to it, was illustrated in Sears v. Ciir/ of Boston, 1 Metoalf, 250. There, the party had gone to Paris, with his family, intending to remain there three years, and had leased his dwelling-house and furniture in Boston, and hired a house in Paris, both for one year; and it was decided, that as the intention to return showed that Paris was a place of temporary, and not of permanent abode, the original domicil was not extinguished, but continued for the purpose of rendering the party liable to taxation. "Where an old resident and inhabitant," the Court said, " having a domicil from his birth in a particular place, goes to another place or country, the great question, whether he has changed his domicil, will depend, mainly upon the question, to be determined from all the circumstances, whether ] the new residence is temporary or permanent; whether it is occasional, for the ' (1) Hoskins v. Mathews, 35 Eaglish Law and Equity, 5.S2j and see Lessee of Cooper v, Galbraith, 3 Washington, 646, 554, and Waterbury ti. Newfiold, 18 Greenleaf, 2u3. (2) See Bruce v. Brooe, 2 Bos. & Pul., 231, n., and Beinpde v. Johnson, 3 Vesey, 202. (3) Craigie v. Lewln, 3 Curteis, 435. 746 D O M I C I L. purpose of a visit, or of accomplishicg a temporary object; or whether it is fur the purpose of continued residence and abode, until some new resolution be taken to remove. If the departure from one's fixed and settled abode is for a purpose in its nature temporary, whether it be business or pleasure, accompa- nied with an intent of returning and resuming the former place of abode as soon as such purpose is accomplished ; in general, such a person continues to be an inhabitant at such place of abode, for all purposes of enjoying civil and political privileges, and of being subject to civil duties." It was equally, or more strongly, illustrated in De Bonneval v. De Bonneval, 1 Curteis, 856. The Marquis de Bonneval was born in France, in 1765, of French parents, lived there till the revolution of 1792, (27 years,) came to England and stayed there till 1815, (23 years,) receiving an allowance as a French emigrant, returned to France with the Bourbons in 1815, returned to England on Napoleon's arrival in France in that year, but went back after his defeat in June, after his arrival. From that time, June, 1815, till 1836, (19 years,) when he died, he lived occa- sionally in France and occasionally in England, having a house in England, and leaving wills in both countries. He was held to be domiciled in France, the country of his birth. And in White v. Brown, 2 Wallace, Jr., 217, still more effect was given, hy the verdict of a jury, to the place of birth, and original and natural domicil. Aspden, born in this country in 1748, prior to the Kevo- lution, was a tory, and went to England in 1776. He stayed there till July, 1785, (9 years,) when he came back to America and stayed twenty-three days; went back to England and stayed there till September, 1791, (6 years,) then came and stayed here ten months, going back to England in 1792. There he lived for the residue of his life, thirty-two years, having been in America once in that time, and staying here twenty-two months, and having been occasionally on the continent of Europe. His domicil of origin was held, in a considerable degree, to have been kept alive by a declared intention to come back, and was held to be American. No notice, however, was taken by either court or coun- sel, in this case, of that which, in my opinion, ought to have been noticed, St., that the man was a person of very doubtful sanity, a matter which would un- doubtedly affect the whole question of animus, a lunatic or insane man being supposed to have no animus, and his domicil of origin remaining; wherever, insane, he may live or die; and unless this element is taken into consideration, the case gives more effect to the domicil of birth than any other, and goes, per- haps, to the verge of law.(l) (1) See, however, the case of Sautereau, quoted in Phillimore on Domicil, 58 j Craig v, Lewin, -3 Curteis, 435; Somerville v. Somerville, 5 Vesey, 570; Munro v. Munro, 7 Clark & Finelly, 842; Johnson u. Beattie, 10 Id., 138; and the principal case of Guier v. O'Daniel. The civilians and writers of Continental Europe, would seem inclined, perhaps, to give more eifect to the mere domicil of origin, or to a domicil once fixed, than, as will be seen further on, ; has been done by some of our, and especially by the English, judicial decisions. "Mascardus ' (' himself no mean authority,* says Mr. Phillimore,) tells us (quoted in Phillimore on Domicil, 148,) that he was taught by the chief of all interpreters of the law, by Bartolus, that where a person retained the intention of returning to his former domicil, a thovsand years would not EutBce to establish a new one." Locr6 speaks of a case decided by the Parliament of Paris, where ft person who had been absent for fourteen years, retained his domicil by a correspon- dence intimating his intention to do so. According to the Sardinian code, it appears thnt "no domicil in a foreign country, however long and permanently established, will, of itself, avail to prove that the ptrson establishing it had abandoned the intention of returning to his native 6UIEB V. O'DANIEL. 747 (b) Place of residence. A domicil once acquired, continues until a new domicil has been acquired ; / or, perhaps, it is more correct to say, at least for some purposes, that it con- \ tinues until it is abandoned ; that is, until it is left with intention not to return, J or, until an intention to abandon it is executed and carried into effect. The v domicil of origin prevails until it is proved to have ceased, and then the one J acquired is in like manner continued. (1) Change of domicil consists of fact > and intention. A removal of one's self and family, with a hona fide intention of abandoning the former place of residence, and becoming an inhabitant or , resident of the place to which the removal is made, is an immediate change of ' domicil. (2) Domicil may be acquired by the shortest residence, if with a design j of permanent settlement; and great length of time will not of itself establish I domicil, where the purpose was, and continues to be, temporary; though a residence, originally for temporary purposes, may, after a lapse of time, by the supervention of new views and new purposes, become a permanent settlement;(3) a matter we speak of more fully at the close of this head in considering the effect of time. The fact and intent, therefore, must concur. (4) An intention,'; alone, to remove, not executed by an actual removal, does not make a change] of domicil. (5) And, on the other hand, an absence from one's domicil for a temporary period, or a special purpose, attended with an animus revertendi, wilL not amount to an extinguishment or change of domicil.(6) A seafaring man, absent on long voyages from his home, does not thereby lose his domicil. (7) If a man leave his family in his former residence, and go elsewhere for a parti- cular purpose, and does not abandon his family, but visits them or sends them supplies, and intends to return to them, his domicil is unchanged, though he may continue absent for months or years.(8) In like manner, if a man's sepa- country, and so incurred the forfeiture of his civil rights." See, also, several of their defini- tions as collected by counsel in White v. Brown, 1 Wallace, Jr., 250. These principles flow very - naturally from the character of the social and civil institutions of Europe. (1) Abington ». North Bridgewater, 23 Pickering, 170, 177; The State «. Hallet, 8 Alabama, 161; see Goodwin v. McCoy, 13 Id., 271, 278; Glover n. Glover, 18 Id., 367; Crawford v. Wil- son, i Barbour's Supreme Court, 505, 518; Isham v. Gibbons, 1 Bradford, 70, 85; Heirs of HoUiman v, Peebles, 1 Texas, 673, 689 ; Burnham et al. v. Eangeley, 1 Woodbury &, Minot, 8, 11; White v. Brown, 1 Wallace, Jr., 217, 264. (2) Burnham et al. u. Rangeley, 1 Woodbury A Minot, 8, 12; Bradley et al. v. Lowry, 1 Speers' Equity, 3, 15; Lessee of Cooper v. Galbraith, 3 Washington, 546, 554; Read v. Ber- trand, 4 Id., 514 ; In the matter of Catharine Boberts's Will, 8 Paige, 519 ; Home v. Home, 9 Iredell, 99 ; Hood's Estate, 21 Penna. State, 114. (3) The Ship Ann Green, &c., 1 Gallison, 275,285; The Venus, 8 Cranch, 253, 279. (4) See Home v. Home, 9 Iredell, 99 ; and Heirs of HoUiman v. Peebles, 1 Texas, 673, 689. (5) Hallowell v. Saco, 5 Greenleaf, 143, 145; Greene v. Windham, 13 Maine, 226, 228 ; Gor- ham V. Springfield, 21 Id., 58; The State v. Hallett, 8 Alabama, 159; Bruce v. Bruce, 2 Bos- anquet k Puller, 229, 230; S. C, 5 Campbell's Lives, 529. (6) Bradley et al. v. Lowry, 1 Speers' Equity, 3, 14; see Ishftm v. Gibbons, 1 Bradford, 70, 86. (7) Granby v. Amherst, 7 Massachusetts, 1, 5 ; Thorndike v. City of Boston, 1 Metoalf, 242, 246. (8) Knox V. Waldborough, 3 Greenleaf, 465; Eichmond v. Vassalborough, 5 Id., 396; Wa- terborough «. Newfield, 8 Id., 203, 205; Jennison v. Hapgood, 10 Pickering, 79,98; Shattuek t). Maynard, 3 New Hampshire, 123 ; Lessee of Hylton v. Brown, 1 Washington C. C, 299, 314; 3 Id,, 555. 748 DO MI OIL. ration from his family be an enforced removal, as by an imprisonment in another place, his legal residence continues unchanged.(l) So, if the state of a person's health be such as to render a permanent residence in a foreign country compul- sory, the residence will not change the domicil; though it would do so where the state of health is such that the foreign residence is not determined on by necessity, but merely by choice, founded on a preference of the foreign climate and the opinion or hopes that the air or habits of another country may be more beneficial to health :(2) but this distinction is nice. So, a fugitive from his country on account of civil war, says Grier, J., in White v. Brown, 1 Wallace, Jr., 265, still retains his domicil, unless he shows an intention of a total aban- donment of his country, by the acquisition of a new domicil of choice. "Nor will the confiscation of his property by the new government, in the case of a ; revolution effected after civil conflict — nor the attainder of his person — of them- selves, put an end to his domicil of origin. If he elect to adhere to the old ) sovereign or government, looking forward with hopes of its re-establishment, ( his domicil of origin is not necessarily abandoned by such election. Allegiance to the existing government, or the exercise of political rights, constitute no , part of the definition of domicil, though these facts may be of great importance in judging of the intention. The estates of those persons who fled from Eng- land with the Stuarts, and died in France, were administered by the French courts according to the law of England, as their domioil."(3) It has been held, also, that if a man take part of his family with him, and leave the rest, and intend to return, his domicil continues for the purpose of taxation ;(4) aud there can be no doubt that the case is the same, where a person takes his whole family with him. Thus, if a person having his domicil unquestionably estab- lished in a certain place, goes to pass the winter months in a neighbouring city, his domicil is not changed thereby. (5) And where a person having his domicil in a certain school district, went into another district to teach school for four months, and then returned to his previous residence, it was held that the ani- mus revertendi kept up the legal residence and domicil in the former place, ' though the actual dwelling was elsewhere :(6) and this doctrine, of the neces- ;' sity of an actual abandonment of the old domicil and an assumption of the new ^ one, has been often very strongly sustained, as we have seen in the cases under j our last head ; which illustrate the adhesive character of the domicil of birth. On the other hand, if a person with his family leave the domicil of origin, and take up a residence in another country, without any intention of returning, thereby assuming that country as his definite abode and place of residence until some new intention has been formed or resolution taken, his domicil at the i former place ceases, and he is not liable to taxation there. (7) The change of f domicil, apparently, does not depend so much upon the new settlement being ' accompanied with an intention to continue in it indefinitely, as upon its being (1) Grant v. Dalliber, 11 Connecticut, 234, 238. (2) Hoskins v. Mathews, 36 English Law and Equity, 541. (3) And see De Bonneval v. De Bonneval, 1 Curteis, 856. (4) Bump i>. Smith, 11 New Hampshire, 48. (5) Harvard College v. Gore, 5 Pickering, 370; Cadwalader v. Howell &, Moore, 3 Harrison, 138; Isham v. Gibbons, 1 Brndford, VO, 89. (6) Crawford D. Wilson, 4 Barbour's Supreme Court, 505, 523. (7) Tborndike i'. City of Boston, Id., 242, 246. GuiER V. o'daniel. 749 without an intention to return : thus, if one leave his father's house to reside at college for the purpose of instruction and keep up his connexion with his original home by returning during the vacations, and resuming his residence ' there after he is graduated, his domioil will continue to be at his father's resi- dence ; Granhy v. Amherst, 7 Massachusetts, 1, 5 ; but if he has disconnected himself from his father's residence, and abandoned it, and afterwards resides at college for the purposes of education, his domicil will be there notwithstanding he may not intend to remain there for ever.(l) With regard to the facts of intention, lapse or length of time as proving the place of residence, the true principle on a view of the whole matter, is as a general principle, the following one, st., that length of time alone will not make the ^ change from the old to the new residence. Intention alone will not do it : but'' the two taken together do constitute a change of domicil. (2) Still, a person, by very long residence in a place, may, perhaps, by that residence alone, give' such clear evidence of his intention to abandon his former domicil as that the, law will hardly receive any other evidence, such as his declarations, to coun- , tervail it.(3) Certainly, in all cases of doubtful domicil, residence, and i especially residence very long continued, is a controlling circumstance. " The presumption of law," says the Supreme Court in the case of General Kosci- usko,(4) " is that Poland, his domicil of origin was retained unless the change is proved. What amount of proof is necessary ? It is residence elsewhere, or where a person lives out of the domicil of origin. That repels the presump- tion of its continuance. Where a person liyes, is taken prima facie to be his ~ domicil, until other facts establish the contrary. It is difficult to lay down any rule under which every instance of residence could be brought, which may make a domicil of choice. But there must be to constitute it actual residence in the place, with the intention that it is to be a principal and permanent resi- dence. That intention may be inferred from the circumstances or condition in which a person may be as to the domicil of his origin, or from the seat of his fortune, his family and pursuits of life A removal which does not contem- ' plate an absence from the former domicil for an indefinite and uncertain timey is not a change of it. But when there is a removal, unless it can be shown or inferred from circumstances that it was for some particular purpose, expected to be only of a temporary nature, or in the exercise of some particular profession, office or calling, it does change the domicil. The result is, that the place of residence is prima facie the domicil, unless there be some motive for that resi-f- dence not inconsistent with a clearly established intention to retain a permanent residence in another place." " Of the few principles, says Lord Stowen,(5) " that can be laid down generally, I may venture to hold that time is the grand ingredient in constituting domicil. I think that hardly enough is attributed to its effects ; in most cases it is unavoidably conclusive : it is not unfrequently said, that if a person comes only for a special purpose, that he shall not fix a domicil. This is not to be taken in an unqualified latitude, and without some respect had to the time which such a purpose may or shall occupy j for if the / (1) Putnam v. Johnson et al., 10 Id., 488, 500. (2) Collier v. Bevaz, 2 Curteis, 859. \-.^^ (3) See HoskinsD. Mathews, 35 English Law and Equity, 540, 542. (4) Ennes v. Smith, U Howard, 423. (5) The Harmony, 2 Robinson's Admiralty Eep., 266, Am. ed., 1801. 750 , DO MI OIL. purpose be of a nature that may, probably, or doea actually detain the person for a great length of time, I cannot but think that a general residence might grow on the special purpose. A special purpose may lead a man to a country where it shall detain him the whole of his life I cannot but think that against such a long residence, the plea of an original special purpose could not be averred : it must be inferred in such a case, that other purposes forced themselves upon him, and mixed themselves into his original design, and im- pressed upon him the character of the country where he resided I , repeat that time is the great agent in the matter : it is to be taken in a com- -I pound ratio of the time and the occupation, with a great preponderance of the \ article of time : Be the occupation what it may, it cannot happen, but with \ few exceptions, that mere length of time shall not constitute a domicil." This doctrine is approved by Mr. Phillimore;(l) and is said by him to be "uni- , versally true of all kinds of domicil.'' "A person's being at a place," said the ' Chancellor, in Bruce v. Bruce,{2) " is riri'»ia/acie evidence that he is domiciled i at that place. A British man settles as a merchant abroad : he evjoys the pri- ; vileges of the place : he may mean to return when he has made his fortune, ; but if he dies in the interval, will it be pretended that he had his domicil at '' home ? In this case Major Bruce left Scotland in his early years : he went to India, returned to England and remained there for two years, without so much as visiting Scotland : and then went again to India, and lived there sixteen years and died. Be meant to return to his native country, it is said ; and let \ it be granted. He meant then to change his domicil, but died before actually changing it." In Butler v. Ilbpper,(Ji) the plaintiff came from South Carolina, ' where, as well as in Georgia, he had a valuable plantation which he cultivated, ; and on which he had a furnished house and servants. He visited them every year. From 1794 to 1806, he resided in Philadelphia, with his family and several children, and during the whole time, nearly, was representing South Carolina, either in Congress or in the State Legislature. Yet on a question of jurisdiction, the court held that his residence in Philadelphia fixed his domicil in that State. With all these cases, however, an original domicil, whether of birth or other- ' wise if once fixed, clings closely. And in those cases where actual and long habitancy have fixed on a party an acquired domicil in the face of his declared intentions that he did not mean to throw off his old one, it has been because courts have sometimes acted on what they deemed a public policy, and some- . times, because they have considered a party's acts a better evidence of his real intentions than his words; and that while he showed he meant one thing, his act of remaining showed he meant another and a different thing. (4) It may be here observed that the Courts of Great Britain, a country which depends, more than any other on its military navy for the national honor and greatness, and which has colonies of its own everywhere, where its subjects may reside for commerce, have been inclined to support the rights of captors; and hence, to make the fact of residence in a country, not its own, and which may become an enemy-country, a proof of domicil there. We, on the contrary, (1) On Domicil, 145. f (2) 2 Bosanquet & Puller, 229, u. (3) 1 Washington's Circuit Court Reports, 500, and see Hosliins v. Mathews, 35 English Law and Equity, 643. (4) See The Venus, 8 Cranoh, 281 ; Stanley t>. Barnes, 3 Haggard's Ecclesiastical, 392. GuiEB V. o'daniel. 751 having no colonies, and as a people esssentially commercial, being interested to have our people establish commercial houses all over the world, and to pro- mote the prosperity of them by conducting them under their own eyes, have, perhaps, been inclined the other way. Our courts have not felt disposed to restrain our citizens from pursuing a business abroad, which tends directly to enrich the nation at home. Hence it is that we find such decisions in England as HosJcins v. Matthews, 35 English Law and Equity, 544, holding, that an Englishman, by a comparatively short residence, had become an Italian; and in America, such as White v. Brown, 1 Wallace Jr., 217, where, in a case more strong perhaps, a domicil of American origin was held to have continued. The cases are not, perhaps, absolutely conflicting, because it is impossible to measure exactly the force of each circumstance aiding to cause a resultant in the con- clusion. At the same time, no doubt, the cases look divergently. How far a domicil can be discontinued before another is acquired see infra, p. 656, towards the close of this note. Coming to a subdivision, under this general head of Place of Residence, as a r;-; criterion of domicil, it may be remarked that a man's dwelling-house is first regarded, in contradistinction to any place of business, trade or occupation. (1) ^-' If he has more than one dwelling-house, that in which he sleeps, or passes his . Johnson et al., 10 Massachusetts, 468, 499. GUIER V. o'daniel. 755 poslulata, than as propositions to be proved."(l) It is possible, however, that for different purposes the domieil may be in different places; thus in Putnam V. Jackson, et al. 10 Massachusetts, 488, it was said that the home of a citizen \ for the purpose of voting might be in one place and his legal settlement in another. In Massachusetts, however, the practice, as to the place of voting, seems to be not very strict or regular. (2) In Isham v. Gibbons, 1 Bradford, 70, 83, it was said that though there can be but one principal domieil for cases of testacy or intestacy, yet there might be two or more domicils for different purposes. HI. A third maxim is, that the native domieil easily reverts. See White v. i^ Brown, Wallace, Jr., 217, 265, a leading case on this point. It is accordingly \ settled, that if a native citizen of one country goes to reside in a foreign country, 1 and there acquires a domieil by residence, without renouncing his original alle- giance, his native domieil reverts as soon as he begins to execute an intention of returning, that is, from the moment that he puts himself in motion, bona fide, to quit the country, sine animo revertendi; because the foreign domieil was merely J adventitious and de facto, and prevails only while actual and complete.(3) [White V. Brown, 1 Wallace, Jr., 217, is perhaps the most extraordinary case on Domieil that ever arose in a court of justice. It consisted in settling the legal residence of Matthias Aspden, a man so eccentric as to be almost insane, who, for purposes of pecuniary interest, had endeavoured, through forty years, to appear an Englishman in England, and an American in America. By the verdict which was given in that case — with which, however, the court was satis- fied, — rather than by any thing in the charge of the court, great force is given to the principles, that a domieil, once settled, continues till a clear intention to, change it is carried into execution, and that the domieil of origin easily reverts./ But in some points — in that, especially, which decides upon the effect of a tem- porary return to the place of original domieil, and in the effect of long residence in a foreign country, the case is not, perhaps, quite in unison with Johnson et al. V. 21 Bales, 2 Paine, 601, nor with Bbskinsv. Mathews, 35 English Law and Equity, 532 ; nor with the language of the Supreme Court of the United States in the case of General Kosciusko, 14 Howard's U. S., 423. And see ante, p. 752, also, Aspden's Case, 2 Wallace, Jr., 452, w.] But this principle, of the facility of reversion of native domieil, seems to apply only to national domieil, in its! most enlarged sense, as referring to native allegiance or citizenship, where the question is between native and foreigner ; it probably has no application in a question between the domieil of origin and an acquired domieil, when both are under the same sovereign jurisdiction. Accordingly, in Munroe v. Douglass, 5 Maddock, 379, 405, where the controversy was between the native domieil in Scotland, and a domieil of residence in India, the Vice Chancellor (Leach) (1) See also Walke and others v. The Bank of Cirolevffle, 15 Ohio, 288, 299, and Crawford V. Wilson, 4 Barbour's Supreme Court, 505, 518. (2) See Lincoln v. Hapgood et al., 11 Id., 350, 353 ; Harvard College v. Gore, 6 Pickering, 370, 375. {?,) The Indian Chief, 3 Robinson's Admiralty, 17, 24; The Venus, 8 Cranch, 253, 280, 301 The State v. Hallet, 8 Alabama, 159; Case of Miller's Estiite, 3 Kawle, 312, 319 ; see also, The Ship Ann Green, 1 Gallison, 275, 286; Catlin v. Gladding, 4 Mason, 308; In the tuatter of Wrigl.-y, 8 Wendell, 134, 140. 756 DOMICIL. said that lie could find no difference in principle between the original domicil aad an acquired domicil. ' It may be doubtful whether a domicil can be discontinued, until a new one has been acquired. In reference to national domicil, not merely in its enlarged sense of allegiance to a sovereign, but in its narrower sense of being subject to the jurisdiction of a particular system of law, it seems to be settled and unques- , tionable, that a domicil is not extinguished by a mere abandonment, but conti- [ nuea until a new one has been acquired, facto et a»umo,(l) though the clear > abandonment of a domicil would strengthen the presumption of the acquisition - of a new domicil elsewhere : and the succession to property, therefore, would ', be governed by the law of the old domicil until a new domicil is acquired :(2) .• If a party die in transitu from one domicil to another, his property will be dis- tributed according to the law of the former domicil. (8) In several cases, also, 1, relating to voting, taxation, and settlement, the maxim that the old domicil continues until a new one is acquired, is laid down as a general one. (4) Some decisions, however, make it doubtful whether, in the case where a place of domicil , is quitted with the intention never to return to it, the extinction of the domicil in that place does not date from the time of such departure, so far as concerns the liability to taxation, and the right of voting, and settlement, and some ',other matters, without a reference to whether or when a domicil is acquired '.elsewhere. Thus, in Kilburn v. Bennett, 3 Metcalf, 199, where a person aban- doned his domicil in Gr. and went to T. in the same State, to the house of his brother, intending to make his home there until he should go into another State, the Court appear to have been of opinion that he ceased to be taxable in G. as soon as he abandoned that place, or left it nne animo revertendi, though perhaps they would not have said that he acquired a domicil for any purpose in T. In Exeter v. Brighton, 15 Maine, 58, 60, the court expressly took the distinction between home, in respect to settlement, and domicil in its broadest sense, and held that the former ceased upon abandonment, though no new home was at once acquired ; " If a party abandon his former residence," said the court, "with an intention not to return, but to fix his home elsewhere, while in the transit to his new, and it may be distant, destination, we are of opinion, that, whatever may be said of his domicil, his home has ceased at his former residence within the meaning of the statute for the support and relief of the poor :" and the decision in Jamaica v. Town^liend, 19 Vermont, 267, is to the . same effect; and see argument in Baird v. Byrne, 3 Wallace, Jr., 11, MS. However, the maxims, that every man has, in law, a domicil somewhere, and that one domicil is not extinguished until another is acquired, seem to be founded in policy and reason; and perhaps they ought to receive a general application : [and this was, apparently, the opinion on the Circuit of Grier, J., in the inter- -esting case oi Baird v. Byrne, 3 Wallace, Jr., 10, (MS.)] (1) Baird v. Byrne, 3 Wallace, Jr., 11 MS. (2) Munroe v. Douglaa, 5 Maddock, 379, 405 ; Bradley et al. v. Lowry, ] Speera' Equity, 3, 14; Jennison v. Hapgood, 10 Piclieriiig, 70, 98. (3) The State v. Hallett, 8 Alabama, 169. (4) Abington v. North Bridgewater, 23 Pickering, 170, 177; Thorndike v. City of Boston Moore r. Wilkins, 10 New Hampshire, 452, 456; Cadwalader v. Howell 4 Moore, 3 Harrison, 3 38, 144; The State ale in the usual course of mercantile dealing and receive an advance in anticipation of sale, 668, 676. the distinction between an ordinary pledge and this sort of sale considered, 673, C75; 676. of the factor's general lien, 730, 732. when interest is due by factors who have received money, 522. INDEX. 763 FACTORS AND FACTORAGE— con?in«erf. III. Principal's ownership of property in the factor's hands, 682, 685. where principal can trace the property into the hands of his agent or factor whether it be the identical article which first came to the hands of the factor, or other property purchased by the factor with the proceeds — he may follow it into the hands of the factor or of his legal representatives or his assigns, if the factor should become insolvent or bankrupt, 6S3, 685. but this right if subject to the factor's lien for advances, commissions and expenses, FRAUDULENT CONVEYANCES, 18, 55. statutes of ISBliz., ch.v,, and 27 EUz., ch, iv., stated, and their extensive provi- sions set forth, 36. distinction between fraud at common law, before the statute, and under them; fraud previously to them having always been a question of fact and the power to avoid the conveyances having belonged to existing creditors alone, 36. common law as now understood would have atiniiied all the ends proposed by these statutes, 36. distinction between creditors existing at the time of the conveyance and those arising subsequently, universally re- ceived, 36. against the former the conveyance deem- ed fraudulent in laio, 37. though there is a difference in the different states of the Union, aa to the degree of strictness with which this principle is applied, 37; erroneous views of the New York courts that there is no such thing as fraud in law, 39. controlled, however, by the power which courts have to set aside verdict in, 39, 40. against subi'equent creditors a voluntary conveyance is not void unless actually fraudulent, 40. but if made to defraud existing creditors, it is actually fraudulent against subse- quent ones, 40. other illustrations of what is meant by actual fraud in this connexion, 40, 41. circumstances from which an intent to de- fraud creditors is inferiblOj 41. As c, g. from grantor's insolvency at the time of the conveyance or from his beinggreatly .embarrassed or so largely indebted that his conveyance necessarily hinders cre- ditors; and indebtedness raises a pre- sumption of fraud that becomes conclu- sive by insolvency, 41, presumption of fraud repelled by the debts being secured in any way or pro- vided for* by the conveyance, or by an agreement outside of it, that they should be paid from the property conveyed, or if they are discharged by an actual pay- ment of them by the grantor, 41. FRAUDULENT CONVEYANCES-con(t»«erf. statute of 13 Eliz., ch, v., protecting *' cre- ditors and oiAers" liberally construed, 42. thus a surety, or co-surety, those inte- rested in an official bond, the guarantee of an assigned judgment, a plaintiff in action for breach of promise to marry, and a defendant who after judgment against him obtains a reversal of it and a judgment in his favour, are creditors, these last at least from commencement of suit, 42, «o, perhaps, is a plaintiff in an action of tort if the conveyance be made to de- fraud him, 42. 80, an assignee by act of law for the use of creditors, but not an assignee under a voluntary assignment for the benefit of creditors, 43. whether an administrator is so far a trus- tee for creditors, that he may set aside a fraudulent conveyance of his intestate when the property is wanted for the payment of debts, and what rights such person has, considered at law and in equity, 43, 44. voluntary or fraudulent conveyances good between the parties and their represen- tatives and all persons but creditors, 45. but equity will not assist executory mat- ters of this kind, 45. what order of creditors are considered as creditors entitled to avoid a voluntary conveyance, 45. what property the statute of 13 Eliz., c. iv., embraces, 46. statute of 27 Eliz., c, v., in favour of pur- chasers has been more liberally con- strued than that of 13 Eliz., in favour of creditors; especially in England, 47. who are purchasers within the statute of 27 Eliz., 48. mortgagees thus considered, 48, 80, one who purchases from the grantor's administrator or executor is, to avoid a previous conveyance actually fraudu- lent, 48. a purchaser at judicial sale, not so, but he has the rights of a creditor to avoid a fraudulent conveyance, 48, nor is an assignee for the benefit of cre- ditors a purchaser, 48. nor a husband acquiring an estate by mar- riage, 48. whether one taking a conveyance in con- sideration of antecedent indebtedness is a purchaser, is not quite clear, 48. statute of 27 Eliz. has not been generally held applicable to chattels, 48, 49, of what frauds purchasers may take ad- vantage, and of the difference herein between purchasers and creditors, 49. of the different manner in which a con- veyance is looked upon in law and in equity; law treating it as good in toto or bad in toto; while equity may treat it as good in part and bad in part, 49. meaning of the term *' voluntary," 50, 51. of marriage settlements, 51, 52. a gift or conveyance originally voluntary 764 INDEX. FRAUDULENT CONVEYANCES-eonUnuet^. may become supported by valuable con- sideration ex post facto, 52. under both statutes bona fide purchasers for value protected : and under this bead the subject of purchasers with and with- out notice discussed, 53. the respective jurisdictions of law and equity in the matter of fraudulent con- veyances, 54. in what cases equity will give relief, 54. circumstances under which the proceed- ings should be at law, 54. voluntary donee without fraud, not re- sponsible for the property or value of it if he has sold or restored it, or it has been accidentally destroyed before the filing of the bill, but otherwise if there have been fraud, 55. GUARANTY. a guaranty is not negotiable, 323, 324. cannot be given by one partner for the firm, 457. GUARDIAN. liability of, for interest, 523. GUARDIAN AD LITEM. defence of suits against infants, at law, and in equity, by, 263, 267. INDEMNITY. of the right of an agent to indemnity from his principal, 711, 720 j 726, 729. INFANCY, 224, 267. General rules as to the validity of con- tracts by infants stated, 242, 244. the doctrine that "contracts clearly bene- ficial are binding, and contracts clearly prejudicial are void, and that such as may be either beneficial or injurious, voidable," disapproved of, 243. the true and definite rule, and the only one justified by the best authorities of the country stated, st., that the only con- tract binding on an infant is his implied contract for necessaries; the only act which he is under a legal incapacity to perform is the appointment of an attor- ney, and that all other acts and eon- tract?, executed, or executory are voida- ble or confirmable by him at his elec- tion, 244. (I.) Express contracts such as a negotia- ble note, even for necessaries, except in one or two States, where the law is badly settled, not binding as such, 244. the necessaries must be actually necessary in the particular case, 214. necessaries defined, and what ia included within this term, 244, 246. money may be a necessary where paid at infant's request for necessaries, or lent on and about their purchase, and so applied directly by the lender and under his directions, 245. malters not necessaries, done by an infant, by which he is bound j such as acts INF AN CY — continued. which be was compellible to do, and which he could be compelled to do again immediately, in the same way, are bind- ing on him, 246, 247. (II.) Infant cannot appoint an attorney or agent of any kind, 247, 248. (III.) Subject to these rules, the principle is that all contracts executory or execu- ted of an infant, are voidable or con- firmable at his election, 248, 249. this rule applies to every -species of con- veyance by deed ; to mortgages, bonds, notes and the endorsement of them ; to written contracts to pay not under seal, to an award under submission by a guardian ; to indentures of apprentice- ship, and other contracts of service, to all judicial acts against an infant with- out a guardian, to accounts stated, and to contract of suretyship, 248, 249. an infant of marriageable years, marrying an adult wife, becomes liable at once on her contracts, 249, 250. power of infant to release marriage con- tract, 250. mode of sueing where infant is jointly party with adult to note or other instru- ment, 250. who may avoid infant's contracts, 250, 251* they can be avoided only by himself during life, or by his representatives after death (who have the same power which he had), and not by sureties, endorsers, or strangers, 250. of the affirmance of contracts hy infantSj 251, 257. executory contracts, may be ratified after full age, by parol, if such ratificntion be actual and express, and be voluntary, deliberate, intelligent and in the know- ledge on the part of the person come of age, that without it he is not bound, 251. whether an infant's bond, securing the payment of interest, can be confirmed by parol, or only by something of as high authority as the deed itself; this question considered, 252, 254. confirmation of executory contracts by acts, such as claiming and enjoying a benefit under a contract which the infant might have rescinded, 254, 255. ratification of executed contracts by acts after age, 265. difference between the case of a sale and the case of a purchase and between a purchase of chattels and a purchase of lands, 255. • the case of ^wrcAase of chattels considered, 255, 256. the case of sale of chattels considered| 256. the cases of purchase or sale of land con- sidered, 256, 257. of the avoidance of contracts hy infantSy 257, 258. in the case of lands, avoidance may be by INDEX. 765 INFANCY— cojUi'nuerf. entry, ejectment, writ dum fait infra Eetat., or by any act unequivocally mani- festing an intention to avoid, 257. but these contracts can usually be avoided only after majority, 258. in the case of contracts of a personal kind or relating to personal property, the con- tracts may be avoided at once, 258. in regard to the consequences of avoiding the contract, 258, 260. (i.) where it is executory, 258, 259. (ii.) where it is executed, 259, 260. for mere torta an infant ie liahle, 261. but liabilities really ex contractu, though infected with fraud, cannot be changed in torts by altering the form of action ; the test being whether a liability can be made out against the infant without taking notice of the contract, 262. this matter illustrated and explained ; and some American cases considered, and declared to be anomalous, 262. the liability of infants on actions of tres- pass and trover considered, 262, 263. modes in which an infant sues and is sued ; at law and in equity j and the subject of decrees and costs against them, 263, 266. of avoiding judicial proceedings on ac- count of infancy, 267. INNUENDO. office of, in actions for slander, 138, 139, 140, 141. in actions and indictments for libel, 142. effect of verdict or judgment on the truth of an innuendo, 141, 142. INSTRUCTIONS. See Principal and Agent. of an agent's duty to obey instructions as between himself and his principal, and by what circumstances the liability for breach of orders is limited, 701, 705. distinctions between instructions or orders and suggestions, recommendation, or general wishes, 704, 705. INTEREST, 500, 535. the different modes in which a claim for it arises, 603. (i.) of an express agreement to pay, 503, 604. (ii.) of implied agreements to pay, 604. (iii.) when due as damages for detention of a debt, 605, 518. on a debt payable at a time certain inte- rest due from time of payment, 506, 507. on a debt payable on demand, due only from time of demand, 507. when interest is due and begins to accrue on a contingent liability, e. g., that of surety and bail, 607, 508. of interest on rent arrere, 508, 509. on judgments and judicial decrees, 609, 610. on unliquidated damages, 511, 513. on a running account, 513, 614. INTEREST— coiKinued. on mutual accounts between mer- chants, 615. in trover, case and trespass, 615, 616. on legacies, 616, 617. on arrears of annuity, 618. on taxes, dividends and contracts of counties, &c,, 518. (iv.) when interest is due on account of money received, or paid, 618. on money lent, or paid and expended, 518, 519. on money had and received, 519. when interest is due by factors, agents, stake-holders, depositaries, t&c, 619, 623. when, by executors and administrators, guardians, attorneys, &c., 622, 524. when, to these, 526, 526. when by vendee in possession, 526. interest not due when payment is pre- vented by the act of the law or the act of the creditor, 626, 528. effect of tender of whole sum due, and of less than the whole sum, 628, 629. interest, generally speaking, not chargea- ble against infants; though it may be on a claim clearly obligatory in its principal amount as a claim for necessaries, 246, 629. interest due according to the law, of the pUoe of contract or of payment, 529, 630. assessment of interest in courts of law, on verdict and on writ of error, 531, 532. of interest allowed by courts of equity, 632. of capitalizing or compounding interest, 633, 536. application of a general payment to debt carrying interest, 289, 290. INTEREST ON INTEREST, OR COM- POUND INTEREST, 633, 636. LIBEL. distinction hetween lihel and slander, or be- tween words written and words spoken, 108, 109. many things which would not be actiona- able if spoken, declared actionable if written, because in one case they are said permanently, while in the other they are said in a way more liable to be forgotten, 108, 109. definition of libel, any publication injuri- ous to the social character of another, and not shown to be true, or to have been justifiably made, 108; 109, 112; 116. distinction between indictable libel and libel, the subject of a civil suit, 112. thus, a publication tending to blacken the memory of the dead, for the purpose of provoking the living, though indicta- ble, is not the subject of a civil suit, 112; 114. examples of lihel, as distinguished from slander: as, e. g. to write of one that he is " a vil- 766 IjSTDEX. LIBEL — coiiti lined. lain," "rogue," or " msaaX," per Gould J.; to write of one that he is an " expa triated foreigner, and that few will enter- tain him; that he has "sworn falsely," though not in a judicial proceeding; that he "lies," or, perhaps, that he is "dis- honest," or that he has been dishonest in "public office," though the office has ceased, Ac, 112, 113. examples of expressions in writing not lihelloua ; i. e. to write of one that his mind is im- paired by disease, this exciting not ha- tred or contempt, but compassion, 113. other examples, 113, 114. publication of libel, 114, 115. constitutes the gravamen of the offence, 114. publication consists in the communication to any one person (not being the party himself,) though headed " confidential," 115. and sent to the plaintiff's wife alone, 115. who may be a publisher, 115. CoTisiriiction and Pleadings in Libel and Slander. See Slander. Defences to Slander and Libel. See Slander. Ei'idence in JIfitifjation and in Aggravation of Damages. See Slander. LIEN. of the factor's general lien, by common law and commercial usage, 730, 731. of the lien given by the Factor's Act, 675 ; 73ii. MAIL. when notice of the dishonour of a note or bill may be sent by mail, 394. MALICIOUS PEOSECUTION, 200, 224. ground for action of, consists in damage which, by an indictment, charging a crime, a person may sustain to his per- son, reputation or property, 207. gist of action is putting legal process in force regularly, for the mere purpose of vexation, annoyance or injury ; and the inconvenience and harm resulting na- turally or directly therefrom, 223. not to be confounded with, suits for mere misdemeanor, or for an abuse of judicial process, whether civil or crimi- nal, 207, 211. Principles upon which the action for ma- licious prosecution rests, 211, 224. (i.) Want of probable eanae, the essential ground, and must be proved, and can- not be implied from malice or other- wise, 211. defined, and shown that the action for which the suit is brought must he on belief, on reasonable grounds, 213. belief without reasonable grounds, or rea- sonable grounds without belief, each insufficient, 214. MALICIOUS PEOSBCUTION— con^inufd. errors of different courts on this point, 213, 215. action, bona fide, upon advice of compe- tent counsel o^ integrity, after having laid a case fairly before him, is enough to establish probable cause, 215. but not other action, or any action on a case not candidly stated to counsel, 215. statement of other facts which will or will not prove conclusively, or in aprima facie way, want of probable cause, 215, 219. want of probable cause cannot be inferred from malice, 211 ; 218. is a mixed question of fact and law, the sufficiency of the circumstances to con- stitute probable cause being a question for the court, the evidence of the cir- cumstances for the jury, 218, 219. probable cause a complete bar to the ac- tion, 219. how probable cause may he pleaded, 219. (ii.) Malice, also, must be established ; not malice, necessarily, in the ordinary meaning of the word, [i. e. angry feeling or vindictive motive,) but legal malice, ■/. e. wrongful action, without reasonable and probable cause, 219, 221. malice, a question for the jury, 220. may be inferred from entire want of pro- bable cause, 211. but the prima facie or natural inference of malice, may be refuted by showing in fact a mistake, absence of malice in fact, 220, 221. (iii.) Entire termination of prosecution, for malicious bringing, of which this ac- tion is brought, must be shown J both the fact and mode of termination, 221, 223. Though want of shewing either may be cured by verdict, 221. allegations of the declaration as to the fact and mode of termination, must be strictly proved, 221, 222. DAMAGES. should be condign when case is clearly made out; but the case should be so made out before any damages at all are given, 223. action for the malicious abuse of process and other actions more or less similar to that for malicious prosecution, 224. whether the action lies against and in fa- vour of corporations, 224; 149, 151. MARRIAGE. a valuable consideration for a conveyance, as against creditors, 50, 51. NECESSARIES. liability of an infant for, 244, 246. NEGOTIABLE PAPER, 296, 406. I. General requisites of negotiable paper, 296, 317. (i.) Must import simply a promise to pay, 305. INDEX. 767 NEGOTIABLE FAVBK— continued. distinction between an acknowledgement of debt or other special agreement, and a promise to pay, 305, 306. certificate of deposit, how far considered negotiable paper, and opposite decisions upon the point, 307, 309. (ii.) Liability must be personal and abso- lute ; not depending on any contin- gency, 309, 313. hence a promise to payout of a particular fund, (as e. g. as soon as I am in possession out of a particular fund,) de- stroys negotiability, 311. distinction between this and a direction to charge the payment to a particular fund, 312. negotiability destroyed where the sum is not certain, 313. or where the goyernment is the drawer or drawee, 312, 313. other illustrations of this rule, 311, 313. (iii.) Must be payable in money and not in bank-notes or commodities, 313, 3U. and must be for the payment of money only, and not for the payment of money and the performance of some other acts, 315. (iv.) The question how far a payee must be expressed, considered, 315, 317. (v.) Must contain, especially, words of negotiability, such as *' or order," or "bearer," 317. the question how far, and in what manner, an endorser {being the payee) of a note not containing these words of negotia- bility, becomes liable, considered on principle and the authorities, the case of Hill et al. Lewis (1 Salkeld, 132,) particularly examined and considered, and the true law uoon this point stated, 317, 321. the effect of an endorsement by a third person, not the payee, of a negotiable note, 321, 322. II. Whether and how far any other instru- ments than promissory notes and hills of exchange are negotiable, 323, 324. herein of bank checks, instruments under seal, bills of lading, coupon bonds and such like instruments, letters of credit and commercial and other guarantees, 323. this rule deduced from the whole review of the subject " that no instruments are negotiable but regular promissory notes and bills of exchange," 324. III. Negotiation of negotiable instruments, 335, 338. effect of negotiation bona fide, in the usual course of business, for valuable consid- eration and without notice, of such in- struments, is to discharge all equitable and legal defences, 325, 334. * crossing* of checks, 334. distinction between the case when the in- strument is given merely ns collateral secuiity fur an existing debt, and when NEGOTIABLE PAVER— continued. it is given and accepted in satisfaction and discharge, of such debt, 335. discharged of equities in this last case, but not so in the former one, 335, 336. this last point, and the circumstances which create privity between the holder and endorser of negotiable paper, con- sidered, 336. such as where the endorsement ia colour- able j or where it is without considera- tion, or where the endorsee takes the note with actual notice, or where the instrument is taken under suspicious circumstances, (of which several are stated,) 333 J 334; 337. the effect of an ordinary assignment of choses in action j and how far set-offs are admissible in our several states, 337, 338. IV. Presentment of hills and notes : 359,367. general principle that to fix liability of the drawer of a bill or the endorser of a bill or note, there must be an actual present- ment of it to the drawee and demand of payment from him, on the day when the instrument is payable, 356. but due diligence is equal, as a presump- tion of law to actual demand, 357. what constitutes due diligence, under the circumstances of the case, is a question of law, 357. demand must be made and notice of de- fault given, even though the note has been endorsed long after it was due; the endorsement of an overdue bill being a new bill drawn at sight, 357. of the circumstances which may excuse a presentment, as e. g.j the makers or drawee's having absconded; or moved his residence out of the state or kingdom where he was when he became a party to the instrument, 357, 359. case of sea faring, and transient or de- ceased persons, 358, 359. General rules for determining su^Qiency of presetitment, (i.) with regard to day of presentment, 359, 360. must be presented on the last day of grace ; demand before or after being insuffi- cient, 359. unless where this last day of grace is Sun- day or a public holiday, 369. or where another day is fixed by an estab' liahed usage of the place where the instrument is payable, or of the bank at which it is payable or deposited for collection, 359. bills payable at or after sight must be pre- sented within a reasonable time, which, subject to great variations for circum- stances, means, perhaps, the day after their reception, 359. case of checks and of promissory notes payable on demand, and of notes en- dorsed when over due, 360. reasonable time, on its application to sight instruments, the facts being undisputed, 768 INDEX. NEGOTIABLE FAVEU~~continved. is a question for the court, and a diffi- cult question, 360. (ii.) As to the time of day, 360, 361. demand on instruments with days of grace, should be made during the proper busi- ness hours, which, unless the paper be payable at a bank, (when it must be made at about the close of banking hours,) range throughout the day from morning till ordinary bed time, 3G0, 361. (iii.) As to the manner of presentment, 361,362, pi'ojJerli/ , the instrument should be exhib- ited or shown at the time the demand is made ; or if lost a copy should be ex- hibited, with a tender of indemnity, 361. demand through post office is insufficient, 361. (iv.) As to place of presentment, 362. where the maker or acceptor cannot be personally found, demand may be made at his residence or place of business during banking hours; place of resi- dence being sufficient if the party be not in business, and place of business being so if he is, ^'.62. where, hi/ terms, made payable at a par- ticular place demand there is always sufficient, 362. if made payable at a bank, and on day of payment the bank holds the instrument or if it be presented there by the holder for payment, no other demand is re- quisite than inspection of the party's account, which is a constructive de- mand, 363. but the instrument must be, in fact at the bank, 363. of presentment of a note or bill payable at a particular place in order to charge the maker or acceptor and the endorser, 363, 366. difference between the English and Am r- ican decisions as to the point when the Buit is against the maker, and history of Rome V. Young and of Sergeant Ons- low's act, 363, 364. the American cases, generally viewed, establish the rule laid down by the earlier English decisions, and now en- acted by statute, 364, 365. V. Of the form of notice of (^zsAonowr, 368, 382. knowledge of dishonour isnotnotice of it; there must be some notice, i. e. some communication from an authorised per- son to the endorser, stating to him the fact or facts by which his liability has become absolute, 372. the notice requires attention, both as to the mode in which, i. e., the facts by which it represents the dishonour to have taken place, and also as to the description or identification of the bill or note, 372. (i.) What facta as to the default of the principal party the notice must set forth, 372, 380. NEGOTIABLE FAVEU— continued. no precise form of words necessary; but the words used must convey notice to the party what the instrument is, and that payment of it has been refused by the party who was expected to pay it, 372. various examples of forma of notices, given and commented upon, 372, 378, language which carries no necessary inti- mation that payment of the instru- ment has been demanded, insufficient, 375, mode or place of demand need not be sta- ted; but the fact of demand and of refusal must be, and in addition to this to make the notice complete it must state that the holder looks for payment to the party to whom the notice is given, and thus information may be express, or may be inferred by necessary implica- tion or from reasonable intendment from the language, construing it such lan- guage in reference to its accustomed meaning when applied to similar sub- jects, and with reference to the terms of the note and the time and place at which it is to be paid as fixed by express or tacit agreement or inferred from gen- eral or particular usages, 377, some other decisions in some states are a little less strict, but importance of adhe- rence to fixed rules on the subject, shown, &G, 378. notarial certificates, how far they aid no- tices in themselves imperfect or defect- ive, 379. (ii.) With regard to the description of the in- strument, any notice sufficient, which under all the circumstances of the case so designates the note as reasonably to leave no doubt on the mind of the en- dorser what note was intended, 368, 372; 380. a notice defective in itself, may be aided by external facts, 380. how far sufficiency of the notice in cases of defective description is a question for the court and how far for the jury, 330, 381. illustrations of descriptions, imperfect, defective or good, 381. notice may be given by the holder, his agent or any other person in whose hands the bill lawfully is for payment, and herein of notices by agents, 381. VL Of the time when notice of the dishonour of a note or bill must begiuen^ 382, 395. utmost possible diligence is not required, but reasonable diligence is; and what?s reasonable diligence is to be regulated by practical convenience or the usual course of business and is a question of law, 385, 388. of time of notice upon checks or bank checks, and herein, some remarks as to what constitutes a check or bank check as distinguished from a bill of exchange, 388. INDEX. 769 NEGOTIABLE VAVER—continned. where the parties reside in the same town, notice of the dishonor of !i bill or note given at any time on the next day after the default is sufficient, 3S9. when the parties reside in different places the notice must be sent by the mail of the succeeding day, subject to the un- derstanding that the mail of that day goes out at a convenient hour, 389. this rule explained and enforced and the error of Chancellor Kent and of Judge Story, (tbe former of whom says that the party has the whole of tbe next. day for mailing notice, so that if notice is sent by the first mail that goes after the day next to the third day of grace, it U in season, though it be not mailed in season to go by the mail of the day after the default,— and the latter of whom expresses the opinion that the holder is entitled to one entire day to prepare his notice, and that therefore it will be suffi- cient if he sends it by the next post that goes after twenty-four hours from the time of dishonour,) pointed out and proved by a full examination of author- i'ies, 389, 394. where from special circumstances the rule above laid down as the true one is not applicable, the question of reasonable diligence as to time is still a question fur the Courts, 394. the mail, as a general thing — and as the form of conveyance which, generally speaking, will soonest bring the notice to hand — ought to be used, 394. each party has the same time for giving notice to parties beyond him, that the holder has, 394. but over-diligence of one party will not supply the laches of another, 394. when bill or note is sent for collection to an agent residing in another place, the agent is bound only to give notice to his principal, who has the same time for giving notice to the endorsers, as if he himself had been an endorser, receiving notice from a holder, 394. rule otherwise when notice is sent by a party to his agent who is not a party to the bill to be communicated by him. lie must send it forward without loss of time, 395. care must be taken not to give notice too early, 395. it may, however, be given on the last day of grace, after default made, 395. the question of right to gice notice on the last day, after default, and the question of right to sue on the last day, after notice, are diflferent questions. The last does not follow from the first, and in- deed the last right is a, questionable one, 396. before suit can be brought against an en- dorser, there must be a right of action by notice or due diligence, 396. VII. Of the mode in which notice of the dis- honour of a bill mi(6( be giccn, 396, 41)6. VOL. I. — 49 NEGOTIABLE V AV^K— continued. the holder is bound only to due or reason- able diligence, in communicating notice and is not obliged to see that notice is brought home to the party to be effec- ted, 396, 400. what is due diligence in this matter, there being no dispute of fact, is a question of law J or if facts ^ are disputed the Court must state the legal principles ap- plicable to different contingencies, leav- ing the jury to apply them, 400. illnsfratione of due diligence, 401. if the holder and endorser reside in the same place the notice must be personal, i. e.j must be given to the individual or left either at his domicil or place of business, or if he have several places of business, at any one of them. It can- not, as a general rule and according to the old law merchant, be sent through the post-office, though of late times this rule has been a good deal undermined by exceptions, which are stated,403, 400. so it may be sent to any place which, by giving street and number, the party indicates as the place to which he de sires the notice to be sent, 401. the notice may be verbal, and a verbal notice which calls forth a conversation, and on which any inquiry can be made if the notice be not as formal as it might be, is not to be construed with the strictness that a written one is, when that is the only means of information a party has, 406. if verbal notice be sent to a proper place at a proper time, and there be no one there to receive it, the holder is not bound to take further trouble, 401. if the party be at lodgings, and not there, notice may be left with a fellow boarder and inmate with him, 401. illustrations of want of due diligence, 401. if the parties reside in different places, notice may be sent either by mail, or by private conveyance, provided du« diligence be used, 403. putting into the post-office, seasonably, a notice properly directed, is in itself due diligence or constructive notice, for tho notice goes at his risk both as to fact and time of reception, 403. the place to which notice sent by mail is to be directed, should be that place at which it will be most likely promptly tu reach the person for whom itis intended, 403. notice directed, at large, to the town or district of country where the partien reside, is in the absence of any special notification, to adopt a different address, always sufficient, although there may be several post-offices in the town, or the party may usually receive his notices at the P. 0. of a different place, 404. if the party usually receive his letters at a different P. 0. from that of^the place where he resides, notice sent to such different P. 0. is enough, 404, 770 INDEX. NEGOTIABLE VAVBK— continued. if party resides ia town where there is no P. 0., the notice should be sent to the P. 0. nearest his domicil, 404. the question under any condition of facts is generally this, not whether the notice was directed to P. 0. nearest to the party, but whether it was directed to the one most liTsely to impart to him the earliest information, 404. where the party is temporarily absent from home, notice, if not given to him, per- sonally, should be sent to his general domicil, 404. where his residence is transitory or variable it is properly sent to the place of his most usual resort, 404. where the residence of the party is im~ known, due diligence must be used to discover it, and if t^iis be used it is enough, even though notice be sent to a wrong place, 405. due diligence herein, consists in making inquiry from such accessible persons as from their connexion with the transac- tion, or place or parties, are most likely to be informed, and in sending notice to the place where, according to the best information to be obtained, the party is most likely to be reached, 405. mere date of bill not evidence of drawer's residence, 405. if the party he dead, notice, regularly, should be sent to his personal represen- tative, 406, where endorsed in a partnership name, notice to one partner is sufficient, aliter, if joint payees, who are not partners jointly endorse a note, 4 06. NOTICE, of the dishonour of a bill or note, form of, 36S, 382. See Negotiable Paper, V. time of, 382, 395. See Negotiable Pa- per, VI. mode of communicating, 396, 406. See Negotiable Paper, VII. when the parties reside in the same place, notice cannot be sent through the poat- office, 400,403. when they do not, it may be sent by mail, 403. place to which notice must be sent, 403, 406. ■ notice need not be in writing, 406. OVERDUE, note or bill, is subject to the equities between the parties, 336, a note or bill endorsed and negotiated overdue, must be presented within a reasonable time, to charge the endorser, 357. PARTNERSHIP. I. Power of one partner to btnd thk FIRM, 407, 457. each partner is identified with the com- pany in all matters within the scope of the business transacted by it, i. e., in all FAUiNB-RSBlP—confinved. matters which it has undertaken to do, or usually does, 442. but being an actual agency or power im- plied from the supposed assent of the other members, an express notice to Sd persons denying the power arrests itj 442. and one partner has not power to bind the firm in any engagements which are un- connected with and foreign to the part- nership, 442. but an act professing to bind them, though unratified by them it would not do so, may be assented to either previously or subsequently, and in a way either ex- press or implied, and will bind them, 443. the objects and character of different part- nerships being different, the powers of partners vary also; e.g., in a p rtner- ship for the practice of law or medicine, one partner would not have power to borrow money or draw bills of exchange for the firm, while in a commercial part- nership, he would as well as do many other acts, 443. case of a partnership carried on under a single name considered how and whom the signature binds, 443, 444. a partnership will be liable civilly for fraudulent representations made by one partner in a matter within the scope of the partnership business, 444. whether one partner may make a general assignment of the partnership effects for the benefit of creditors. It would aeevi, from a view of all the authorities, that one partner, in the absence of the other, acting in good fuith, under an emer- gency, for the benefit of the concern, may make a general assignment to a trustee lor the benefit of creditors ; hut under ordinnry circumstances, or where the other partners are present and capa- ble of acting in the matter he cannot, 444, 447. a partner to bind the firm on a written in- strument, must use the partnership name, the presumption, prima facie, in regard to a note made in the name of one partner alone, being that the transaction was on private account, 448. but a partner may bind his firm on a con- sideration which passes to their 'Hse,upon an instrument signed by himself; this instrument being proved to have been made for the firm and on their account and credit, 447, 448. acta which a partner cannot do, 449, 453. (i.) he cannot bind his co-partner by in- struments under seal: but if he attempts to do so, i. e., if he docs execute a deed in the firm name, and the other partner ratifies and adopts it, though by parol, and either expressly or impliedly, the firm is bound, 449, 450, but this restriction on a partner's power docs not extend to cases where the ob- icct of the instrument under seal is to INDEX. 771 PARTNERSHIP— coH/!Hwerf. rfi'acbarge the debt, nor to cases wbere a seal is not essential to the nature of the contract nnd will n -t change or vary the liability, 450, 461. (ii.) he cannot confess nor authorize the confession of judgment against the firm where no writ has been issued against both, 452. (iii.) nor appear nor authorize an appear- ance where a suit has been instituted against them, 452. (iv.) nor refer any partnership matter to arbitration, 452. if one partner, without authority, make a deed in his firm's name, or so conless a judgment, it will bind him though it does not the firm,- 451, 452. independently, however, of the above mentioned (i., ii., iii. and iv.) particular legal acts, which a partner cannot do for his firm, and besides the restriction of all operations to the particular kind of business which the partnership was established to conduct, there are cer- tain limitations on a partner's power, grounded in the very nature of partner- ship, 453. thus he cannot, without previous or subse- sequent assent from the co-partner, apply the firm property of any kind to pjiy bis private debts ; nor bind the firm by nute or otherwise to pay his private debts, 453. nor issue the paper of the firm for the ac- commodation of third persons or by way of surety, nor as guaranty for them, 455, 457. nor bind the firm to illegal contracts, such as usurious loans, 457. prima facie, paper drawn by one partner in the firm name, is partnership pro- perty, and when in the hands of a bona fide holder for value, without notice of its true history, will bind the firm, 454, 455. II. Op the respective rights of execu- tion CREDITORS OF THE FIRM and of the partners individually in relation to the joint and separate effects, 457, 483. tbis subject considered in two aspects, First, at law and while the partnership is going on. Second, where the assets have gone into equity for distribution, 457, 483. (i.) at law and while the partnership is tjoing on, 4 57, 463; 472, 479. private estate of partner subject both to his private creditors and to the partner- ship creditors, who have against it the same rights, 472. for a partnership debtthe joint propertyis sold absolutely, but where the judgment is against one partner, for his private debt, the property is sold subject to the partnership debts and to the claims of the other partner, 473. difference between common law execution, against tangible chattels and foreign PARTNBRSHIP~con(iHuerf. attachment or proceedings in the nature thereof, must be kept in view in con- sidering the adjudicated cases on the subject of the satisfaction of separate creditors out of partnership property, 473, 478. modes of proceeding and of executing process in these cases respectively cou- sidered, 473, 478. proceeding in the respective cases of the death and of the insolvency of one part- ner, 478,479. separate execution postponed to joint one against partnership property, 479, money made on a separate execution goes to the separate and not to the joint creditor, 479. the doctrine that the joint effects are„ pledged toAhe joint creditors, and that the joint creditors have a priority over separate creditors, and that the intercut of the individual partner is the residue after a settlement of accounts, a princi- ple of chancery, 479. now adopted as a principle of law, 479. but to prevent confusion, indispensable that its origin be kept in view and ques- tions considered first in reference to common law, then bow they stand in an equitable point of view, and then how far the prin-iples of equity must or can be administered at law, 479. (ii.) where the assets have gone into equity for distribution, 463, 472 j 480,483. priority of right in joint creditors to joint estate admitted without question, but how far the priority of right in separate creditors to separate assets is a rule of general equity, has been matter of much question, 480. the rule is admitted in English hank- rtiptcy, subject to the exceptional cases, of there being no joint fund, and no solvent partner living, 480. the rule has been considered both in England and here, sometimes as a rule of general equity, sometimes us a rule peculiar to bankruptcy j the weight of disposition in our courts being, ^erAa;ps, to consider it a rule of general equity, subject however to the two exceptions established in England in cases of bank- ruptcy, though the Supreme Court of the United States has spoken of these exceptions as eccentric and diflicult to be reconciled with the reason of the rule, 480, 481. the rule wholly denied in some States and received with modification in others, 482, 483. in some States the matter regulated by Statute, 48:^. III. Of real ESTATE OWNED BY COMMERClAIi PARTNERSHIP, 484, 500. universally conceded that at Inv: sucb estate is held subject to all the ordinary incidents of land held in common, 494-. but in equity may be affected by the ex- 772 INDEX. PARTNERSHIP— conitnucf^. press or implied agreement of the part- ners with a trust, 494-. ground of the rule is the special interfe- rence of equity in favour of commerce^ 494. but legal title affected only to the extent of right of survivorship being destroyed, 404. an equity in favour of the partners them- selves alone, 494. basis of equitable interference is the agreement or intention of the parties, 495. case of express agreement free from diffi- culty, 495. agreement may be implied, as by purchase of the land with partner^ihip funds, and hriiKjiiitj it into partnership uaee, 495. but a mere purchase with partnership funds, not necessarily enough, to con- vert property bought in one partner's name into partneri02. this position illustrated by cases, 602, 603. so where the name of the principal is given in the body of the deed as to the party to the deed, but the deed is at- t'-eted by the agent with his own seal, thi* instru'iient has no operation again-t the principal, 603. 774 INDEX. PRINCIPAL AND AGENT— contimted. this position illustrated by case?, 603,605. no particular form of words necessary pro- vided the act be done in the name of the principal, 605. different forms stated, 605, 607. an exception to the general rule about deeds is this : sfc. where a transfer is made by deed, which it is not necessary should be by deed, and the act is done in such a way as would have been valid if the authority and its execution had not been under seal, there the execution by in- strument undei seal in the agent's name, may take effect as a transfer not under seal, if there be a parol ratification ex- press or implied, 607. and equity, on the ground of aiding a de- fective execution of powers, gives relief where deeds are by mistake sealed and delivered in the name of the attorney instead of the principal, 608. the agent, duly authorized, who has clearly covenanted in the name of his principal and not in his own, and is not person- ally liable though he signs in his own only, 608. otherwise when he covenants in his own name, 609. I except in the case of a publicofficer acting [ in the course of ofBcial employment, on ! behalf of the government or public, 609, 610. iL person corruptly professing to have au- thority and be agent, knowing that he has not, liable to action on the case, 610. to render deed regularly executed by an agent the deeds of his principal, the au- thority to execute must be under seal, 611. (ii.) As to instruments not under seal, 612, 61.3. the rule which requires deeds to be exe- cuted or signed in the name of the prin- cipal does not apply to instruments not under seal, 600 j 612, 613. enough if the name of the principal ap- pear in the instrument and the inten- tion, on the whole, be apparent, 600 j 612, 613. V. 0/ the UabUities and rights of action upon 2)<'rol contracts made by an agent for a 2>riticipal, 614, 645. This subject considered under the following heiids; I. Liability of ^ (1.) Principal on parol contracts made by agent, 628, 035. (i.) where such contracts are express, 628, 635. (A.) where these express contracts are «5n((en ones, 628, 633. (B.) where the express contracts are verbal ones, 633, 635. liability of foreign principals, 639, 640. (2.) Affcnt on parol contracts made in be- half of principal, 635, 639. (i.) where such contracts are express. (A.) where in such express contracts PRINCIPAL AND kGE'^H— continued. credit has been given to the agent exclusively, 628. (B.) where in such express contracts the name of the principal bus not been disclosed or does not appear, 636, 636. (C.) where the agent has no authority to contract, 636, 639. (a.)' the contract being verbal, 63fi. (b.) the contract being written, 636, 638. personal liability of agent to foreign prin- cipal, 639, 640. (3.) Each 2?arti/, at. principal and agent. (ii.) where the obligations are implied, 638. II. Eight of Action in principal and agent respectively, 641, 645. (1.) On eccpresH contracts, being chiefly written ones, 641, 643. (i.) where the name of both principal and agent are disclosed, 641, 642. (ii.) where the name of the agent alone appears, 642. (2.) on implied liabilities, 642, 645. VIL See RESPONDEAT SUPERIOR. VIIL See FACTOR AND FACTORAGE. IX. Rights of Principal against Agents 685, 710. SeQ spjeaaUi/ Pattvr and Factor- age, X. and III. principal duties of an agent stated: (i.) to employ adequate skill, and exert reasonable diligence, 685, 687 ; 699. whether left to discretion or limited by positive order, always liable fur negligence, 699. liability of bunks receiving notes for collection different in different States; and ditferences stated: 699, 70L (ii.) to obey instructions, 687, 698; 701. but a reasonable, practicable com- pliance with orders in accordance with the usages of trade, is usually sufficient, 701. how far being in advance for funds rides over orders in restraint of sale, 702, 703. liability for breach of order limited by (a.) the occurrence of an event not con- templated at the time of the or- der, making compliance imprac- ticable, 703, 704. (b.) the fact that the order is not posi- tive and amounts only to advice, suggestion or general direction, 704, 705. obligationofmerchan^t agent to ensure lor his correspondent, 705. ratification of acts not authorized or in violation of orders j as by ac- cepting or demanding payment of purchase money, Noble, Clevelaud, Ohio." 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