fsf Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018935670 A TEEATISE THE LAW MERCANTILE GUARANTIES, PEIICIPAL AND SURETY IN GENERAL. BY WALTER WILLIAM FELL, Esq., OF THE MIDDLE TEMPLE, BARBISTEK AT LAW. THIRD AMEEICAN EDIT|0¥, FROM THE SECOND AND LAST ENG/5iSH (eDITI«$N. NOTES AND EEFERENCES TO THE LATEST kWEWm DECISIONS, BY WILLIAM M<^COTT, OF THE Al^rlky BAB. ALBANY: WtAEE C. LITTLE & CO., LAW IbOOKSELLBKS AND P0BMSHBKS. 1873. ^^41^1' Entered according to Act of Congress, in the year Eighteen Hundred and Eifty-nine, BY WEARE C. LITTLE, In the Cleric's Ofllce of the District Court of the Northern District of New Torlc. ALBANY, N. Y.: VAN BENTHUYSEN PRINTING HOUSE, STEREOTYPERS. ' PEEFACE .^^^ TO THE SECOND AMERICAN EDITION. The acknowledged value of this work, for its clear analysis, accurate method, and thorough investigation of the subject, has induced the present publishers to prepare a new edition. The notes" contain late cases both English and American. It has been the object of the editor to present the decisions which Were full and definitive upon the subject, of as many of our own Courts as could be reached. The arrangement and division of the subject in the work is so careful and discriminating, that the annotatio^ under the sev- eral heads of the text, to a great extent, cover the whole ground of judicial investigation of the later cases upon the subject. The editor has thought best, however, upon the subject of the guar- anty of promissory notes, to pursue the investigation, under such heads as were suggested by the cases examined, and has there- fore, in a few instances, thrown them more into a body. The subject of del credere commissions has been very briefly considered. Though properly arising under the head of Princi- pal and Agent, it is not inappropriate to consider it here ; and it has been deemed advisable to insert it, on account of the final concurrence of the English Courts with the opinion expressed in the American case of Wolff v. Koppelt, and the interest attach- ed to the subject from the decided and opposite views of the two distinguished judges, Lord Mansfield an* Lord BUenborough. The discussion of the subject of the nature and extent of guaranties of promissory notes, has resulted in many conflicting opinions, not only between the Courts of diflerent States, but also between successive judges of the same Court. It will no doubt be found that this, as well as other subjects of investiga- tion, might have received a more careful and thorough examina- tion. J. W. A. BuELiN'STOK, September, 1859. PEEFACE TO THE THIKD AMBEICAN EDITION. The value of Mr. Fell's admirable work has been appreciated by the profession, the second American edition having been rapidly sold. In the prepai-ation of this edition all the recent American and English cases accessible to the editor have been examined and cited. Following the body of the work is an " Appendix of Notes," arranged according to the treatment of the subject in the body of the treatise. Upon the pages of the volume letters wiU be found referring to the pages in such " Ap- pendix of Notes." After consulting the body of the work, reference should in every case be had to the " Appendix of Notes." A careful index has been prepared, which, it is hoped will facilitate the consultation of the notes ; the new cases will be found alphabetically arranged in the table of cases. The reason for placing the notes to this edition in an appen- dix is, that the notes to the volume are already so voluminous, that great inconvenience would have been experienced, both by the profession in consulting the work, and by the printer in pre- paring it, if another cojirse had been adopted. W. M. S. Albany, N. Y., May, 1873. IITEODUCTION TO THE FIRST EDITION. The universal adoption of a system of credit in all mercantile transactions, and the prBdigious extent to which that system is at present carried, have introduced, or at least very much in- creased, the practice of requiring counter-securities against such credit, or some other species of guaranty, for the performance of engagements so entered into. The subject of mercantile guaranties may, therefore, be con- sidered as one of the first consequence, both to the commercial world and the profession of the law. Its discussion is rendered peculiarly important at this time, by some late decisions of the Courts which have interpreted the law upon the subject of guar- anties, as connected with the provisions of the statute of frauds, in a manner entirely different from that which had been usually received, and have worked a material change (if such expression be allowable) in the law itself. The object of the present work is to point out the nature and extent of that change; to collect and arrange the authorities upon the subject of mercantile- guaranties, and connected there- with ; and to digest them into something like system. Any observations that have occurred upon decided cases, as tending to interfere with other decisions, or with established principles, are introduced in an Appendix ; and a particular dis- cussion is there given of the principles upon which the decision in the case of Wain v. Warlters is founded ; as this is the lead- ing case of those above alluded to, as having wrought a material change in the application of the statute of frauds to the subject of guaranty. The Appendix also contains a few of the leading Vi INTRODUCTION. cases themselyes ; either given at length, or pretty fully ab- stracted. As the subject of giving characters to mercantile houses, for the purpose of inducing others to trust them, to Clerks, &c., to be employed in mercantile affairs, and of entering into engage- ments for their fidelity, are intimately connected with the ques- tion of guaranties, it may not be immaterial to enter briefly into their consideration. The subject of del credere commissions was originally intended to have formed part of the present undlfertaking, but as that be- longs, more particularly, to the law of Principal and Agent, which is now preparing for publication by another professional gentleman, and is to be a part of his work, it is here omitted. PREFACE TO THE SECOND ENGLISH EDITION. It cannot be but gratifying to the Author to find, that in preparing for a new edition of this work, he has not to naake the slightest alteration in any of the principles originally laid down. On the contrary, all the subsequent decisions haye tended to confirm them. He had, indeed, fully expected, from the doubts which have been uniformly expressed, both by the Bench and the Bar, upon the decisions in the cases of Wain and another t. Warlters, and others of the same nature, on the necessity of the consideration being in writing, as well as the promise, that he should have had to vary the statement of the law in that particular. But, notwithstanding those doubts, and although the Court of Chan- cery has gone nearly the length of deciding the contrary in the case of Edgerton v. Matthews, p. 351, yet the same principle con- tinues to be adopted in the Courts of Law, and must therefore remain as it originally stood in this work. The Author cannot, however, withdraw his observations upon those decisions, which, therefore, still remain in the Appendix. Peeston, Odoler 2, 1830. TABLE OF CONTENTS. CHAPTER I. Paqb. Of the general Law of Guaranties; and the division of the subject : 1. Consideration. 2. Promise by Deed. 3. Parol Promise. 4. Statute of Frauds • 1 CHAPTER II. What is a promise to answer for the debt, default, or miscarriage of another, within the meaning of the Statute of Frauds ? 10 1. Must be for a subsisting debt. 2. Same liability, and within the statute. CHAPTER III. What is a sufficient Memorandum or Note of the Agreement ?. . . . 47 CHAPTER IV. What is a sufficient signing.' 91 CHAPTER V. Of the extent and construction of the promise 113 CHAPTER VI. Of the Rights and Remedies of the party or parties to whom the promise of Guaranty, or other security of the same nature, is gi^en 149 CHAPTER VII. Of the Rights and Remedies of the party or parties giving a pro- mise of Guaranty, or other security of the same nature 191 CHAPTER VIII. ito securities for their 291 Of giving characters to others, and entering into securities for their conduct CONTENTS OF THE APPENDIX. No. PAGE. I. Pillon & Bose t. Van Mierop <6 Sopkins, abstracted 321 II. Wain and another v. Warlters, abstracted , 328 III. Lyon V. Lamb 335 IV. Observations on the two last mentioned cases 354 V. Upon the mode of signature required by the statute of frauds. 370 VI. As to the Agent's having a written authority 372 VII. Bradshaw v. Fletcher, and observations 375 VIII. Of engagements given to Partners 378 IX. Sardayy. GoocA, and observations 384 X. Paisley and another v. Freeman, abstracted 389 XI. Haycraft v. Creasy, abstracted 402 AMERICAN CASES. I. Upton V. Vail 411 II. Packard v. Bichardson, and others 414 III. Lent v.Padelford 434 IV. Bemsen v. Beekman, • 440 V. Bank of Steubenville v. Leavitt 449 VI. Garr v. MarUn 451 Statutes, English and American 457-478 Notes 479 B TABLE OF CASES. A Abbott T. Maasie 79 AdamsT. Flanagan >. 542 Adama T.Jones. 59 Adams v. McMillan 503 Adams V. Way 507 Addleyv. Gnx 100 Addy V. Grix 503 Agnew T. Merritt 526 Agawam Bank t. Strever 504 Arcock V. Hill 207 Albany Ins. Co. v. Devendorf. i^l8 Aldenv. Blogue 205 Aldenv. Claflc 533 Aldricb'B Adm's v. Hapgood 538 AJdricli V. Harper 204 Aldridge v, Turner 482 Alford V. Baxter 526 Alger v. Seoville 22, 24 Allen V. Vx/yoT 487 Allen T. Bennett 76, 492 Allen V, Boner 80 Allen V. Rightmore 228, 292 Allen V. Ogden 277 Allen T. Pike 296 Allen T. Soorff 487 Allen V. Smitherman 260 Allen T. ThompsDU 482, 485 Alsop T. Price 180 Alva y. Plummer 503 Amldan t. Hill Amos T. Ashley 48 Anderson v. Davis 483 Anderson v, Harrold 497. 500 Anderson v. Hayman 33, 35 Andrews v. Planters' Bank 509 Andrus v. Waring 183 Anstey t. Marden 26 Agister. 18 Anslie T. Wilson 256, 535 Anon V. Layfleld 150 Anthony v. Butler 157 AppletonY. Fflrker 507 Armitage v. Pulver 541 Arnold t. Stephenson 510 Amot V, Woodburn 534 Ashbee v. Pidduck 204 Arcrillv. Lyman 239 Arlington v, Marticke Armstrong v. Gildchrist 248 ArnoldT. Camp 253 Arundel Bank v. Globe 210 Atlantic Ins. Co. v. Sanders 516 Atkinson t. Stewart 273 Atwood V. Vincent 275 Auter V. Miller 515 Austin V. Darwin 211,241 Austin V. Vandermake 154 Ayer v. Hawkins 142 Ayliifv. Tracy 72 B Page. Babcock t. Bryant 514 Bacon t. Chesney 147, 521 Bagley V. Clark 518 Bagnall v. Andrew. i 537 Bailey t. Freeman 482 Bailey v. Adams 208,210 Bailey t. Larcher 479, 489 Bailyv. Brownfield 277 Bailey v. Ogden 497, 499 Baine v. Williams 142 Bainbridge t. Wade 483 Baker t. Denning 501 Baker t. Jameson 515 Baker v. Briggs 217 Baker t, Martin 537 Baker t. Langhorn 114 Balfour V. Sea, &c 488 Baleonev. Woodruff. 258 Balling v. Doneghy Ballard v. Walker 97 Ballard v. Walker 6 Ball V. Danterville 150, 156 Barker v. Parker 175 Bank of Brighton v. Smith 541 Bank of U. S. v. Houseman 481 Bank of Hopkinsville v. Rody 544 Bankhead t. Alloway 545 Bank of Ky. v. Brooking 154 Bailk of Ireland t. Archer 69 Bank of Rochester v. Bowen 154 Bank of Tenn. v. Sasafras 154 Banister V. Scott. 182 Bank of Ithaca T. Ires 207 Bank of Montgomery v. Walker 211 Bangs r. Strong 216, 239 Bank of Manchester v. Bartlett 220 Bancroft t. Dumas 143 Bank of N. Y. v. Livingston 247 Barber T. Pitman. 519 Barcley v, Gooeh 535 Barhydtv. Ellis 527 Baiker v. Parker 520 Barnard v. Hydrick 498, 499 Barnard v. Lapeer 509 Barnum v. Childs 481 Barrow v. Shields 526 Barney v. Deney 303 Bardisten v. Lingvode 2 Barber v. Fox 4 26 Barker v. Bueklin 33 Bartlett t. Attorney General 122 Barclay r. Gooch 213,249 252 Barton v. Bennett 230 Barclay v. Lucas I64 166 Barrows v. Lane ' 298 Bassey v. Grant [ 143 Baasford v. Pearaon. ^ai Bateman v, Phillips 82 Bawdes v. Amlierst [oi TABLE OF CASES. XI Page. Baum T. Dubois 503 Beach v. OUendorf. niO Beau T. Bean 307 Beau T. Valle 515 Bean v. Wells 545 Beardniore v. Ci-utenden 243 Beardsley's Ex. V. Root 6;}5 Becfcley v. Eekbert 295 Beckham v. Pride 223 Beckham v. Draka. 482 Beehe v. Dudley 291, 294, 297 Beers v. Culver 514 Bell V. Bruen 504 Bell V. Faber 509 Bell V. Fi-ee 260 Bell V. Howard 533 EeU V. Kellar 241 Bellam et al. -v. Edsworth 148 Bell V. Welch 483 Benedict V. SherilL 493 Benjaniiu v. Hillard 479, 507 Bentley t. Nortbhouse 259 Benstead v. Coleman 79 Bennett v. Pratt 53 Beaton v. Zerlieu 157 Bennett v. Buchanan 585 Bennett V. Bowling 537 Beunett v. Judsou 546 Bent V. Cohb 295 Bickford v. Gibbs 503 Binegar's Admr. v. Phillips 207 Binney v, Rhodes. 143 Bird V. Gamman 23 Birkmyr v.Darual 33, 40 Bird V. Blare 73 Bishop T. Day 232 Bigelow V. Benton 480 Billings T. Sprague 545 Bleaden v. Claries 537 Birkhead t. Brown 493 Black River Bank v. Page 524 Blacfcstone, VoL 2, page 446 5 Blake v. White 205 Blake's Case 205 BlackT. Cuffee 211 Bleaker v. Hyde 70 Blackhorn v. BalL 519 BlalocK: V. Peake, ^ 544 Biake v. Parlin 483 Blazer v. Bundy. 518 Blood V. Goodrich 495 Baker t. Briggs Baker t. Denning Boardman v. Paigne 285 Boner v. McDonald 239, 231 Boody v. United States 143 Bostwick V. Atkins 213 Boutflour V. Coatea. 182 Boulwarf. v. Robinson 254 Bouchard v. Diaa 285 Boychild v. Drumond Boyd V. Plumb 153, 154 Boyd V. Brown 303 Bozeman v. State Baok. 239 Boiling V. Doneghy 540 Bond T. Bishop 540 Bond T. Storre 484 Bonney v. Seely 636, 537 Booler v. Mayor 508 Bordelow v. Weymouth 508 Botts -V. Cozie 501 Bowman t. Cecil Bank 509 Bowman t. Curd 480, 524 Bowman v. Kistler 511, 533 Boyd V. McDonough > 544 Boyd V, Titzer 519 Boy kin V. Dohlonde 487 Bradshaw v. Fletcher 108 Bramble t. Poultney 261 Brewster v. Mott 154 Brewster v. Silena. 192, 293, 294, 491 Brichwood v. Annis. 207 Bridenbecker v. Lowell 507 Bridget v. Phillips 519 Briggs V. Williams - 142 Brittle T. Williams. 151 Page. Broker v. New Albany. 511 Brooking v. Shumway. 518 Brown v. Adams 515 Browu T. Ayer 519 Brown v. Barnes. 515 Brown v. Dysinger 520 Browu V, Kidd,.., 531 Brooke v. Kvaus 155 Brown v. Batchelder 135 Brodie V. St. Paul 45, 80 Brooks T. Lloyd 181 Brown v. Busaey 189 Brown v. 207 Brown v. Riggius. 215, 218 Browu V. Marsh 239 Brooke v. King 256 Brown v. Curtis 291, 293, 294 Browu V, Lattimore 504 Browu V. Wright 522 Bruen v. Marquaud. ' 200 Bryou v. Hunt 495 Buchanan v. Bordley 484 Buckley v. Lord ' 148 Buckley v. Beardsley 52 Buckler v. Buttivant 258 Buckmasterv. Harrop 108 Buchanan t. Bradley 198 Buckmau v. Hale 59 Buchanan v. Kirtley 530 Buford V. CaJd weU 546 Bull V. Allen 484 Burliugaiue t. Burliugame 514 Bush V. Stamps 274 Busbnell v. Bishop Hill Colony. 492 Bunson v. Kincaio. 239 Buel v. Gordon. 265 Burnv. Burn 150 BurkheadT. Brown , 69, 70 Burk V. Craggon 219 Butcher t. Churchill 267, 536 Butler T. Stocking, 155, 509 Butler V. Wright 631 ButlerT. Ranson 258 Butler V. ChurchiU 267 Butler V. Hamilton 198 Butler V. Starhng. 155 Butler V. Andrews 187 Buttol V. Jarrold 205 B urt V. Home 298 Buxtor V. Lister 84 Butterfield t. Hemsley 508 Buttermore v. Hays 514 Byassee v. Reese 515 Byron V. Grinder 5J6 Byrne T..Ponug 198 c Cahotv. HasMns 28. 29 Cabe T. Jameson 205 Cainv. Bates 523 CahiU V. Bigelow 486 Calahan v. Boardman 142, 143 Cald weU v. Went worth 142, 143 Callaway v. Heam 481 Calvert v. Gordon 530 Calvert v. London Dock Co 480 Campbell v. Knapp 483 Campbell v. Logan 496 Carroway v. Anderson 515 Caswellv. Edwards. 270 Case v. Boughton 481 Camigie v. Morrison 239 Carver v. Warren 50 Carroll v. Nixon 61 Carroll v. Bo wdie i 272 Carpenter v, Kiug 216 Carpenter V. Devon 217, 218 Castling V. Aubert 30, 115 earlier v. Estes 507 Carter v. Jones 480 Caswell V. Ware 485 Caton V. Caton 500 Catekill Bank v. Messenger 539, 240 Caytouv. Hardy 509 xu TABLE OF OASES. Page. Cayuga Co. Bank v. Warden 258 Champlia v. Pariah 498, 501, 515 Cliaae v. Hinmau 535 Charmanv. McLane •• ^08 Chelmsford Co. v. Demarest 604 Cheney V. Cook 491 Chilton V. Wiffin, 181 Champioii v. Plummer 6(J Clieeseboro v. Millard 234 Chandler v. Braymard 260 Chater v. Beckel; 12, 19 Chapinv. Alewell.t 24 Chase v. Day 36, 42 Chesterfield v. Janisen 2 Cliilton V. Koberta 274 Chilton T. Chapman 278 Child V. Eureka, &c., Works 532 Clioppin V. Gobbold 523 Clanin v. Cogan 526 Clark V. Nihlo 213 Clark V. Russell 28, 51, 82 Clarlc V. Wilson 201 Clark V. Grant 81 Olapp T. Eice 540 Clark T. Brown 514 Clark v. Burdett 506 Clason V, Morris 234 Clagijet V. Solomon 239 Clarkv. Butcher 521 Clark V. Pmney 535 Clark V. Small 482 Clary V. RoUand. 528 Clerk T, Develin * 200 Clerk V. Wright - .62, 82 Classon v. Bailey 499 Clayv. Walton , 487 Cleaves v. Foas 503, 514 Clippinger v. Crops 208 Cliflord V, Brooke 308 Clopaton V. Cozart. 304 Clinan v. Cooke 76, 96 Cobb V. Page 482 Cocking V. Ward 514 Cocke V. Bank of Alabama. 155 Coggill T. American Ex. Bank* 527 Coiiea V. Com. Sink. Fund 220 i Colvs V. Bowne 498, 502, 515 | Coles V. Tescothick 503 | Colt-uiau Y. Garrigua 501 i Colcottv. Haigb 212 Collier v. Higgins 504 Culliiis V. Jones 52/Z I Copes V. Middleton 234,277' Coggs V. Bernard 4 Cookev. Tombs 13 Compton V. Jones 24 Coukey v. Hopkins 35 Cootb V. Jackson 45 Cook y. Bradley 47 Cole V. Dyer 51 Colgin T. Uawley 53 Coleman v. Upcott 68 Coles V. Trecothick 76, 77, 104 Coutoiisier v. Hastie 114 Couch v. Terry 273 Cowell V. Edwards 270, 273, 279 Cowley T. Dunlop 258 Collins V. Priest 484 Colvert V. Gordon Commercial Bank t. New Orleans. 489 Commercial Bank v. Wai'ren 509 Com. Bank v. West. Res. Bank 216 Com. Bank v. Cunningham 211 Commonwealth v. Miller. 218 Commonwealth v. Wolbort 224 Com. Bank of Erie v. W. R. Bank 216 Com. Bauk of Berks Co. v. Ross. 198 Congdon v. Reed 505 Coukey v. Hopkins 483 Couley v. Boyles 232 Connor v. Ti'awick 485 Couu. Mut. Lite Ins. Co. v. Cleveland R. E. , Co 491 Cooke V. Paffe. Constant T. Matterson 531, 543 Cook V. Bradley 483 Cooper T. Dederick ^j- Copperthwant v. Sheffield 507 CorhettT. Gilbert 545 County of Dubuque v. Koch 530 Cogan V. Frew 536 Coyle V, Fowler ■ 481 Cozine v. Graham 515 Craige v. Coxe 198 Craue v. Ailing ' 239 Cranford v. Millspaugh 200 Cray thorne v. Swynburne 207, 281, 283, 285 Creath t. Sims 275 j,, HoUins T. Morns. jj, Holloman T. Langdon _. Hodgsen v. Anderson m'in 633 Hodgson T. Shaw ^^'^•Ai Haddens v. Chambers "^ ^^ Hope V. CuBt. KQi' RQ? HofmesT. Weed 534,637 Hoovar T. Ejler HJ Hopkins t. Cooper ■ ■ • J^J Hale V. Harrison Halfbrdv. Byrom.... HaU V. Huchons HallT. Soule Hambel t. Hamilton, HamillT. Purvis Hamilton T. Van RensBelaer oj' Hampton T. LeTy ,•;••,■„■„■ ••,;■..' ?ii Hamar V. Alexander 17, 302, 310, 3U Hamar T. Kirkwood M3, IM Hancock v. Sntwisle |°^ Hancock t. Clay ^ Hardin t. Branner ^^ Harker v. Glidewell ^J* Harper t. Miller ^^ Hanlor t. Carpenter o"" HannerT. Douglass ^JJ Harrington t. Wallace • ■ =" Harrison v. Jackson 150, loo Hargrave t. Smee 504 Harris v. Clark J85 Harris t. Knickerbacker 510 Harrison v. Harrison 108 Harrison v. Sawtell *? Harris T. Wynne ^'7 HargravesT. Cook "^ Hart v. Talmadge ^07 Harvey ex parte j^^ Hartley v. O'Flaberty ^7/ Harris t. Warner 540 Hartford Quarry Co. v. Pendleton 513 Hartwell t. Smith 542 Harvey t. Alexander 481 Hasseil v. Long 530 Hasleham t. Young 152 Hasseil V. Lang 138 Hatchett v. Pegram 532 Haddens v. Clark 296 Hatch T. Hobbs 505 Haven v; Foster 52 Hawkins v. Holmes 497, 600 Haydon v. Cabot 247,260,636 Hajes V.Ward 234,275,524 Hays V. Davis 539 Hayman v. Neale 105 Haycraft v. Creasy 305, 309 Haymaker v. Elerly 28 Ha'ynes v. Seachrest 510 Henderson v. Booth 516 Henderson v. Rice 483 Henderson v. Hobart 237 Henderson v. McDulSe 270 Hei-rick v. Orange Co. Bank 215 Heskinson v. Woodbridge 180 Himnen v. Wood 532 Hepburn v. Dunlop 521 Herndon v. Mason 535 Herrick v. Barst .624 Henry v. Ci'ompton 538 Hicks V. Whitmore 502 Hill V. Hooper 513,514 HUl T. Wright 632 Hiclonan v. Reinking. 164 Horton v. Day. ■ Hoskins v. Parsons... Bosack V. Rogers , Hogson T. Hutchinson ^^;^ Holland t. Teed ■ ■ HoUetT. Holmes.. Hole T. Harrison. ... . . • ■ , „ Hooks V. Bank of Mobile ^'^ Hotohkin T. Kent J™ 639 . 240 157 200 , 283 609 Hotehkiss T. Barnes ="» TIn,l1ll XT UnVt^T . ^*'' 112 Hickman V. McCurdy 260 ' Jenkins v, Clark, Houle T. Baxter . Houghton T. Mathews ^Jf Hough V. Warr ...-■ "J" Howe T. Buff. &, E. R. R. Oo 535 HowT. Kemball. *°J Howard v. Bdgell f Howard V. Holbrook 4»| Hoyt T.French %" Hubbard T.BriggS: ™ Hubert v. Morean ="" Hnbbly T.Brown • • ■ • 19» Hubbell V. Carpenter. ^'»' ^J" Huddlestonv. Briscoe ™ Hughes V. Wlieeler f^B Hueyv. Finney |30 Hu^n V. Gray *»* Hufctt v. SouUard 260, 533, 535 Hunt T. Adams 41, 49 Hunt V. Bingham 208 Hunt V. Mead 185 Hunter v. Osterhoudt 143 Hunter v. Seaton 98 Hurlbert v. Hendee 223 Hutchinson v. BeU 310, 314, 316 Huherf v. Turner 500 Huntv. Amidon 523 Hunt V.Knox 508,523,524 Hunt V. Rousmaniere's Adm 521 Hunt V. Smith 480 Hunter v. Clark 523 Huntley v. Sanderson 520 Hutchins T. Burnes 502 Hyman T. Seaman 531 I Ingalls T. Dennett S35 lugraham v. Maine Eanlc 133 Ives V. Gilbert 513 In re Levy r^2lj In re Hontgomery 512 In re WUlia \ 512 Irish v. Cutler 299 Israel t. Douglass 250 Izard T. Montgomery 8l] Jackson V. Dorchaire 519 Jackson v. Fletcher 261 Jackson y. Foster 495 Jackson v. Stackhouse 240 Jackson v. Yandus 241 Jai:ob V. Eirk 492 James v. Patten 498 Jarmlu y. Algar : 24 Jeffrey v. Austin 5 Jenkins t. Reynolds 51 TABLE OF CASES. XV Johnson v. Johnson 535 Johasou T. Miln. 482 JoiCH V. Joice 544 Johnson t. Sellers 489 Joues V. Brooke 537 Jones -?. I*nucher 543 Jones T. Hoyler 526 Johnson v. Wilmarth 294 Johnson v. Collins 250 Johnson T. Planter's Bank 220 Joaes V. Letcher , 24 Jones V. Cooper 31, 37 Jones T. Kilgrove 142 Jones V. Lewis 219 Jones V. Blanton 271 Jones V. Bullock 198, 218 Jordou V. Dyer 489 Jordon V. Sawkina 495 Joslyn V. Collinson 484 K Eage v. Woghorne. . , 205 Karmuller v. Krotz 489 Kaufman t. Wilson 523 Kt^ V. Allen.. Kelly T. Page 536 Kelly T. Webster 514 Eemmerer v. Wilson 496 Keaaedy v. Bossiere 525 Kenwortby r. Schofield 503 Kean v. McKinsey........ 54 Keate v. Temple 43, 82 Keasley v. Cole 237, 238 Kent V. Derby 186 Eeudrick t. Lamax 186 Kerly v. Duke of Marlborough 506 Kerly v. Studbacker. 508, 523 Kidder t. Hunt. 514 Kimble v. Corastock 537 King V. Uptou 29 King V. Baldwin 192, 207, 224, 226, 232, 523 Kinnaway v. Trelaran 65 Kingstou V. Wilson. 115 Kiinble t. Cummins. 531 Kimble v. Wallis 507 Kinchelor v. Holmes 29S Kirby t. Marlborough ' 140, 144 Kirkham v. Martyr 35, 16 Kitchill V. Burns 298 Kitson T. Julian 130, 204, 504 Kiug V. Brown 514 Kingston lus. Co. v. Clark 504 Kimball v. Walker 481 Kleen v. Carrier 207, 483 Knapp T. Parker. . . . Knight V. Crockford Kyle V. Bostwick 211, 479 Klingensmith v. Klingensmith 525 Kuns T. Young 488 Kurtz V. Adams 483 Kutsmeyer v. Ennis • 487 Lacy T, McNeil La Farge v. Herter 216, LaFarge t. Halsey 522, Lampleigh v. Brathwait » Lamorieus v. Hewitt Lamuse v. Parker. Lamb v. Barker. Laae v. Stacy • Lane v. Williams et al Langworthy v. Smith Lansing v. Gaine Lapham v. Barnes Lapham t. Barrett Langan v. Hewitt Laverty v. Bum ■ Lawrence v. McCalmont - • • • Law V. East India Co ■ • - 217, Lawson v. Mason. '.... Lawrence t. Butler Page. Lawrence v. Taylor 157, 501 Laxton t. Peat 202 Layer v. Nelson ^ 264, 29G Leary t. Cleshire 538 Lea V. Barber 18 Lea V. Dozier 223 Leavitt v. Savage 205 Ledbetter v. W^ker 502 Leggett v» Humphreys 479 Lee V. Libb 500 Lee v. Mahonev 496 Leeds V. Dunn 518 Leighton v. Atkins 270 Lent V. Paddleford 53, 92, 103, 291 Lenmagne t. Stanley. ..-. 93, 307 Leneh v. Strawbridge 136 Lemaine t. Stanley 500 Lemmon v. Box 481 Lenox v. Pryor 484 Leonard v. Bales 481 Leonard v. Giddings 247 Leonard v. Vredenburgh 21,22, 36, 51, 482, 483 Lequer v. Prosser. .' 290, 293, 294 Lexington R. R. Co. v. ElweU ; . 504 Levy Merrill 53 Lewis V. Bell 205 Lewis V. Piercy 186 Lilly V. Hewitt 515 Little V. Hazzard 510 Little V. Westen 30 Livingston v. Roosevelt 150 Livingston v. Hastie 150, 151 Livingstone v. Temper 2 Liverpool W. Co. v. Atkinson 122 Liverpool W. Co. v. Harplay 122 Livermore V. Rand 142,143, 144 Lloyd V. Galbrath , 542 Long V. Brevard 525 Long V. Colhurn 502 Locke V. United States 206 Longford v. Ellis 185 Longfellow v. Williams 60 LonsdaU v. Brown 28 Loomis V. Newell 20 Loring v. Lea 22 Lord Galloway v. Mathew 150 Lord Galloway v. Staples 214, 256 Louisville Man. Co. v. Welch 241 Love's case 21 Lowry v. Adams 70, 241, 242, 295 Long V. Lewis 515 Loomer v. Wheelwright. ., 520 Loomis V. Newhall 488 Lord Durham v. Child 521 Lowe V. Eldred i 515 Lowry v. Drew. 510 Lyle V. Morse. ....-, 516 Ludlow V. Simons 118 Lumpkin v. Mills 277 Lynch v. Reynolds 198, 199 Lyon V. Lamb 47, 48 Lyman v. Newman 522 Lyon V. Richmond 521 Lyons v. Thompson. 502 M ' Mackay v. Eloodgood. 157 Maguife v. Howard 522 Mann t. Blanchard 547 Manyatte v. White 506 Marsh v. Falker 545 Mallory v. Grant. 291 Manly v. Boycott 310, 211, 212 Manr'ow v. Durham 290, 293, 294 Mandeville v. Welch 25 Marquis Townsend v. Slangroom 83 Marshall v. Aikin 215 Marryatt v. White 144 Mason v. Pritchard 135, 503 Mason v. Jonett 239 MarshaU v. Collett 521 Mason v. Hall 487 Mason v. Eckford's Ex 52G Mason v. Richards 523 XVI TABLE OF CASES. Page. Martin V, MoFadliL ^15 Martin t. Rice S32 Matthew V. Warner 94 Matthews v. Aikin 275, 544 Matthews v. Christman 241 Matson v. Wharam 31, 32, 33, 34, 36, 37, 42 Mauri v. Hefferraan 247, 272 Maudlin V. Branch Bank of Alabama, ,..153, 154 Maxwell V. Jameson 250 Mayer t. Isaacs 135, 137, 504 Maybing V. Bamton 153 Matlock v. Gibson 347, 481 Marley v.Boothley 349, 583 May v. Coffin 387, 521 Mayhew t. Boyd 518 Mayhew v. Cncket 525 McCannv. Lewis 488 McClory v. Parks 540 McCollum v. Gushing 496 McArthur t. Ladd 157 McCart T. Lewis 157 McClnsky v. Cromwell 135 McClerry v. Fryer 298 McCollum V. Hinkley 220, 221 McCoanell v. Scott 332 McDonald & Miils v. Eggleston &. Barker. . 157 McDaoiels v. F. B. Mau. Co 278 McDougal T. YeomanSk , 595 McComb v. Wright 502^ 503 McCormick v. Irwin 543 McOrea v. Purmset 481 McCune V. Belt 508, 540 MsDaniels v. Lee 534 McDowell V. Chambers 497 McDowell V. Dunlop 515 McGuire v, Newkirk 293 McTver t. Richardson 57, 491 McKenna v. George 271 McLaren r. Watson's Ex's 189, 294 McLean v. Lafayette Bank 207, 277, 523 McLemore v. Powell 234 McNaughton v. Partridge 157 McTarish v. Carroll 143 McDowell T. Oyer 514 McGann t. Lewis 488 McLaughlin v. McGovern 526 McLuerrane v. Hamlin 508 McLaren v. Hall 535 McMillan T. Bull's Head Bank 479 McMillen t. Hinkle 508 McNaughton v. Conkling 493, 505, 546 McQuewans v. Hamblin. McWhorter v. McMahou. 501 Mead v. Bunn 545 Meadows t. Meadows 503 Mechanics Bank v. Livingston 507 Mehan v. Rourke. Mellick V. Knox 537 Meriam v. Harsen 481 Mead V. McDowell 30 Mears v. Sericold 150 156 Mech. &Farm. B'k v. Capron ' 181 Merritt v. Clauson, IO3 105 Merriott v. Lister ' |87 Metcalf et al. v. Bruin ".' jgs Merrill v. Gore .' ^gg Merritt v. Classen \" 497 Middleton v. Brewer 515 Midland Banking Co. v. Chambers. .".!!"" 513 Miles T. Cook 502 Miles v. Linnell '.!'.','. 520 Miles V. Jones !!!."!*. 516 Michigan Bank v. Leavenworth. .'.'.'."!.' 2I8 Middleton v. Wilson 71 Mills T. Hyde 270 272 Miller v.frwin ™' ^S Miller T. Stewart 120, 135, 158, 480, 517, 518 MiUer V, Ord 247 Miller T. Elliott 2^i Miller V. McCau 211 MilUken v. Tuffts \\ j li Mines V. Sculthorp loo Miller V.Cook..... '. iS? MiUerv. Drake =ii MiUer V. Montgomery | .* tnl Miller V.Moses =Sf Page. Miller V. Sawyer oSa Millerv. Upton 515 Millett T.Parker 538 Miner v. Willoughby 502 MitoheU v. De Witt 540 MitcheU V. Merrill 520 Morely v. Bootbley 481 Moiin T, Martz 499 Moore v. Campbell 529 Moore v. Proussard. 484 Morris v. Knifan 498 Mortimer v. Cornwell 501 Morton v. Dean 503 Morton v. Hall 484 Moggs V. Amos, , 23 Montague t. Tidcombe 299 Moore v, Hart 71 Moore v. Paine 274 Moore v. Isley 285 Moore v. Holt , 291 Moore V. Bowmaker 204, 205 Morrison v. Taylor 273 Morrison v. Poyntz 273 Morris C. & B. Co. t. Van Vorst 222 Morgan v. Se^onour 233, 234 Mortland v. Hiues 215 Morris V, Cleasby 113, 114 Morlay v. Booth 48 Moss V. Adams 142 Mowbray v. Cunningham 30, 33, 36 Moseley v. Ames 513 Moseley t. lugals 522 Mosley v. Tinckler 485 Mulligan v. Bailey 546 MusCTave t, Glascow 522 Musher t. Hotehkiss 491 Muller V. Bohlens 116 Myers & Bellinger v. Morse 21 Myers v. Edge ]61 Myers t. Wijflis 219 Myers v. Morse 190 Mutual Lile Ins. Co. v. Ross 499 N Nares t. Powell 229 Nares t. Rowles 133, 233 Neeison v. Samborne 482 Nelson v. Boynton 486 Neale v. fiheffleld 205 Neptune Ins. Co. v. Dorsay. 273 Nevatt V. Wallace ,...., 5 New Haven Co. B'k v. Mitchell 59, 159 N. H. Savings Bank v. Eli, 210 N. H. Savings Bank v. Colcord 211, 217 Newson v. Jackson 545 New York State Bank v. Fletcher '. 535 Nichols V. Johnson. 492 Nicholson v. Revill " ' 237 238 Nisbet V. Smith 195 2O6,' 232 Nixen V. Long 205 Nixon V. Palmer " 500 Noble V.Ward WV.W.WW 495 Northampton Bank v. Pepoou'. Norris v. Harney 239 Norris v, Crummie jjOT Norton V. Robertson 207 Norton t. Coon 276 Noyes Sl Co. V. Nichols '.\'.\\V.lZ^''m,^fi Norton V. Coons ' '541 Nuttingv. Dickerson *.*.'. 431 503 Oakes & Co. T. Welier 042 7,w Oakley V. Boorman 2m ' m? Odlin V. Greenleaf. '^ Ogilvie V. Foyambe W. At Obio Life Ins. Co. v. Ledyard. I?! Okie V. Spencer oiQ Olmstead v. Greenly 91 Onge V. Treulock.... ',; gfin Oliver V. Bragg. ^ Ornev.Cook..? ^^ TABLE OF CASES. XVll Ortucan t. Dickeon "fai Osboruer. Parker !!!!!!!'" 260 Owen V. Homau !.'!!!!!" 237 Oxford Bauk v. Haynes .'.*.*,' 295 Oxfoi-d Bank V. Lewis '.'. 214 Owens V. Miller *" 53^ Packer v. Wilson 511 Palmer v. Stephens. !!!!!!!! 497 Parker V. Barker ^*3 497 Packai-d T. Richardson !. '" 56 97 Page V. Russell '259 Page V. Bank of Alexandria .,,['[ 259 Paisley v. Freeman 300, 301, 302, 303, 308 Pam V. Packard I95 224 Paley v. Field V. V ' 244 Parker v. Culverston " ' 298 Parker v. Holmes. 238 Patj-idge v. Davis 189, 294' 296, 299 Pai-ke V. Smith 153 Paris V. Hulett .".'.273 274 Parsons v. Briddock '277 Partei-iche t. Po wlet .'.'.' 73 Patterson v. Pope ...'.'.'.'. 262 Patton V. Giirney 300 Parliam v. Randolph 546 Paolin V. Kaighn .'538 541 Patterson v. Fowler 528 Patterson v. Keystone & Co 502 Paul V. Stackhduse , 488 Patchin v. Swift 52 Payne v. ComLmercial Bank 217 Payne v. Cave HO Payler t. Hammersham 237 Payne v. Able 526 Payne v. Powell 485 Peabody v. Chapman 538 Peake v. Darwin 480 Pearson v. Howe 546 Pearson v. Parker 533, 535 Peale v. Northcote 114 Pearsall v. Summersett 123 Peck V. Barney. 290 Pack's Case ., I7e People V. Bemer 2Zi People V. Jansen 225, 523 People V. Byron 133 People v. Shall 47 Penoyer v. Watson 162 Perley v. Spring 32 Peters V. Rich 270,281,282,283 Peebles v. Stephens. 481 Peers v. Davis , Pennell t. Pentz Penaiman v. Hartsbom 497 People V. Bostwick 419, 538 People T. Murray 497 People's Bank v, Pierson 518 People T. Vilas , 518 Perry v. Tarborough 532 Periue v. Leaohman 515 Pequet v. Pequefs Ex 539 Petzer v. Harman , 535 Phalon V. Stiles 24 Philpot v. Bryaut 207, 209, 211, 212 FhilKps V. Smith 243 Phelps V. Phelps , 485 Philbrooks v. McE wen. 525 Philhrook v. Delano 481 Phillips T. Ames 513 Pidcock V. Bishop Pearce v. Blagra ve 24 Pierson v. Catlin 277 Pike V. Bacon 157 Pillan T, Van Mlerop 4, 6 Pimber T. Matthews .; 83 Pinckey v. Hall 150 Pitts V. Cogden 224, 525 Pierce v. iSiight 606 Plercy v. Adams- , SIS Piersbns v. Hooker 495 Pike v. Brown 487 Pike T. Irwin Pilgrim v. Dykes , gig Plomer v. Long 145 Polton V. Click 154 Powell V. Waters 199 224 Powell V. Smith 246 Powers V. Fowler 65 Pollock V. Glarsell 501 Poge V. Hart gge Postmaster Gen. v. Reeder 517 Potter V. McCoy sio Povvuall V. Forraud '. 531 Powell V. Waters 523 Preseott v. Newell 5|io 542 Pratt V. Humphreys '.22 24 Preston v. Meroeau 'si Price V. Barker 236,237, 238 Primrose v. Bromley 283 Priudle v. Page 273 Pi-iug V. Clarkson 218 Prout V. Bank of Alabama 239 Price V. Durriu 502 Prlngle v. Spalding 503 Propert v. Parker 497 Purcell V. Potter... 502 Purdy V. Peters, 479 Pull T. Tatlock 230 Pullen V. Slates. . . , 4 Putnam v. Russell 142 Pynuel's Case , 210 Purviance v. Sutherland 510 Pyron v. Griuder Quin V. Hanford 514 Quick V. Block 516, 644 RabandT. De Wolf , 483 Ramsey v. Lewis 538, 541 Ramsey v. Purvis 523 Ranlrin v. White 519 Rankin v. Wilsey 519 Ray V. Young 514 Raikes v. Todd 51 Ranelagh v. Hayes 259 Randall v. Rich'. 256 Rankins v. Childs 241, 242 Rann -v. Hughes 6, 47, 482, 485, 515 Rathbone v. Warren 198 Reed V, Jones 495 . Reed v. Norris 536 Read Ex'r v. Nash 12, 13, 15 Read v. Garvin 296 Rees v. Berriugton 217, 239, 525 Rex V, Guuston .' 301 Reynolds v. Ward 207 Reigart v. White 530 Remsen V. Beekman 519, 623, 629 Remsenv. Graves 526, 527 Reuss v. Picksley. 499 Reynolds v. Edriey 530 Richard t. Moouey 528 Richmond V. Marston 543 Richards v. Beauchamp 519 Rich v. Jackson. 81 Rigby V. McNamara 260 Richards v. Commonwealth 523, 526, 529 Rigley v. Norwood 491, 516 Riudge V. Jndson 505 Rist V. Hobson 514 Rheem v. Naugatuck Wheel Co 646 Roberts v. Tennell 514 Robinson v. Brooks 538 Robinson v. Tipton 515, 516 Robsonv. McKoin 507 Rodman v. Heddeu 534 Rogers v. Atkinson. 495 Robertv. Garnie 318 Robert V. Colvin 274 Robertson v. Vogle 198 Robertson t. Ottiit 207 , 483 1 Robinson v. Gee 234 XVlll TABLE OF CASES. Robinson v. Doolittle 143 Robbina v. Bingham 120 Rogers v. KneeTaud 22 Rogers V. Warner 137 Roger V. Roger. 1°d Roget V. Merrilt 9*^ Rondeau v. Wyatt 10" Rose V. Cunningham '''^ Ross V. McLauglilin 143 Rowley v, Stoddart 239 Rogers v. Broadoax. 489 Rollins V. Stevens 5"9 Roth y. Miller. 522 Rosser v. Frankhn. 501 Rowan v. Sharp's Cr 518 Rucker v. Robmson 508 Russell T. Rodgers 482 Rucker v. Camaypr. 103 Russell et al. v. Wiggins 69 Russell V. Buck 299 RusseU V. Clark's Ex'ra 129, 135, 300, 309 RussellT. Hall 14 Russell V. Beck 47 Rnsaell v. Hammond 71 Russell T, Davis 116 Russell V. Perkins 158 Russell T. Bennington 206 Rnshfortb ex parte 237, 244 Rntledge v. Greenwood 196 s Sabin t. Harris 484 Sacramento y. Kirk 526 Sage V. Wilcox Sage T. Wilcox 53 Samnell v. Howarth , . . . . 196, 430 Saudyland v. Marsh. .> 152 Sauford v. Norton 295, 298, 299 Sanford v. Allen 298 Sansome t. Bell *■ 139 Saunderson y, Jackson 73 Saunders T. W^ketield. 51 Saxton V. Peate 112, 211 Saymond v. Geut 40, 175 Scneroppel v, Shaw , 206 Salmon Falls, &c. Co. v. Portsmouth Co.... 489 Saltmars v. Bower 509 Sampson v. Burton 512 Sanborn v, Flagler. 497 Sanders t. Etcherson 524 Sanderson T. Jackson 497, 498 Schlessinger v. Dickenson 492 Schmidt V. Colter 524 Schneider v. Narris 497, 498 Schnell v. Nell 488 Sehoonmaker v. Rossa 485 Scboles Y. Hampson...'. : 38 Schermerhorn y. Schermerhorn 153, 154 Schubrick v. Russell 195, 196 Scott y. Avery 61 Scott V. Hall 211 Scott Y. Bandy. 508 Scully Y. Hawkins 479, 537 Sears v. Laforcd .534 Sears St Brink y. Brink 49, 53 Seagoode v, Meale G2 Seaborne v. Powell 233 Seton Y. Slade 98 Semple y. Pink 29 ' Selbyv. Selby 497,500 Selden v. Bank of Comm 508 Sewall Y. Howard 543 Seymour v. Mitchell..... 514 Seymour v^ Wilson 546 Sharpe v. Gibbs 520 Sheffield v. Bruce t)3 Shepard v. Beecher 141 230 Sbepard v. Palmer.... 259 Sbiftlett V. Humane Society 205 Suirley v, Stratton 84 Shirriff v. Wilkes 150 Shnby v, Mandeville 253 Sharp V. New York 545 Sharp Y. Picl^ens 517 Page. ShawY. Nudd, JW Shaw Y. Stine °^l Sheets y. Selden's Lessee o"* Sheid Y. Stumps 492 Shenk'e Appeal ^10 Shepard v. Rhodes • 4S4 Shipperly Y. Dennison ■■••• ™7 Sherburne v. Shaw 492 Shilding Y. Warren 537 Shiun Y. Budd 543 Shirley y. Fearne 510 Shoffuer T. Fogleman 530 Shotwell V. Murray 521 Short Y. Galloway 537 Shute Y. Dorr 513 Shupe Y. Galbraith ; 488 Shubrick y. fialmond 481 Shropshire y. Creditors 543 Sidnett v. Evans ■ 28 Simon Y. Metivier 503 SLmmes v. Naylor 263 Simmons y. Keating 147 Simson y. Cooke 159 Sidcock Y. Bishop 519 Sigsly Y. WiUis 512 Sikes Y. Quicke 521 Simons v. Steele. 479 Simpson Y, Blant 524 Simpson y. Burton 512, 522 Singer v. Troutman 524 Skelton y. Brewster 21, 55 SkiUenY. Merrill 272 Skiss Y. Hucy. 524 Sloo V. Pool 273 Slnby v. Champhn 254 Smith Y. Anderson 539, 542 Smith Y. Bradley 514 Smith v. Conrad 538 Smith v. Dann 507 Smith T. Evans 575 Smith V. Fah 500 SraeadT. White 217 Smedes v. Utica Bank 259 Smith Y. Harris 312, 318 Smith V. Algier 28,29 Smith Y. Finch 27, 29 Smith v. Ide 52 Smith Yi Dickenson 298, 299 Smith Y. Estate of Steele 274 Smith Y. Bing.. 2€2 Smith Y, Van. Loan 258 Smith Y. Nisseru 249 Smith Y. Dunn 241 Smith Y. Becket 211, 228 Smithv, Steel 214 Smith ex parte 201, 213 Smithv. Strader, 154 Smith Y. HaiTiaon 543 Smith Y. Mudgett 483 Smith Y. Neale 499 Smith v. Rogers 480 Snow Y. Franklin 205 Snyder y. May .- 157 Sneed's Ex. v. White 522 Solomon v. KimmeL 481 Solly Y. Forbes 237 Sorrell y. Craig 205 Spies Y. Gilmore 293 Sprig Y. Bank of Mount Pleasant 206 Speyers v. Lambert 491 Springer y. Springer. 543 Springsteen v. Sampson 489 Spiller Y. Creditors 545 Spinner v. Fitzgerald 614 St. Albans Bank v. Dillon, 518 Stackpole y, Arnold 501 Stallworthy y. Prislon 530, 538 541 Stanley v. Miles 433 Starr v. Starr 435 State Y. Gaillard 431 State Treasurer y. Mann 504 State Bank v. Fleeter 535 State v. Moore 545 Steams y. Hall ; ...['.', 495 Stearns v. Marks ]\ 479 State Bank v. Bozeman * 240 TABLE OF CASES. XIX Slate Bank V. Campbell feo htaawood v. Clampit 278 Stonfleld V. Johusou 104 Stafford V. Ne wson ' " ' 304 Stall V. CatskiU Bank 154 Ntftllord V. Yates : . 200 Staffoi d T. Low * 58 Stapp V. S.ll ;. .";;.'.'.53, 56 Meveus V. Molntvre, 14 Maine 1 Stevens v. Sfinire 29 Stevens v, Winn » '. ...'..', 53 Stewart t. Bden !!!!..".'.*.'.*! 199 Stewart t, Kirtli .,'..'.'. 143 Stewart v. Eaton .'.'.'.*..*.' 240 Stedmau v. Gooeh 218 Stedman V, Martinant '.....'. 267 Steel T. Mealing 273 Stokes V. Moori ....!!.' 102 Stratton t. RatselL 158 Strange t. Lee 162, 164 Strong V. Riker 189 Steadman v. Gnthrie 516 Stem T. Dvinker 515 Stimson v. Hill 530 Stockbridge v. Scbooumaker. ..V. 492 Stone V. Compton 51 9 Stone V. Denney 546 Storrs V. BiB-ker ...>. 521 Stuckey v. CroasweU 537 Snccession of Doigle 518 Sutton V. Irwin 52, 1 52 Swan V. Nesmitli 115 Swan V. Steel 150, 151 Swanv, Stedman ..i 157 Swain v, WalL 260, 282, 284, 289 S wetson v. French ] 55 Sylrester T. Downer 291, 299 Sjmonda V. Ball 104 Symmona t. Want 58 Succession of Pratt 525 Sutton T. Irwine 52, 152, 509 Sweetaer v. Frencb 509 Swift V. Beers. 479 Swlftv. Hawkins 481 Talbot T. Gay. 295 Talmadge v. Wallis , . 3 Talmadge v. Burlingame w 218 Tammersley v. Anderson.. 259 Tansey t. Biehop Tallraanv. Frankliru 503 Talmadge v. Wallis 3, 482 Tate p.Hilbert 5 Tate V. Wyraond 206 Tatlock T. Harris 24 Tawney v. Crowther 75, 96 Taylorv. Cargell.. 157 Taylor V. Heriot 259 Taylor T. Higgins 249, 251,252 Taylor v. MiEa. 246 Taylorv. Ross 52 Taylor v. Savage. 280 Taylorv. Wetmore 59, 70 Tawney v. Crowtber 497 Taylor v. Davis 523 Taylor v. Denning 501 Tenney v. Prince 483 Ten Eyck v. Brown 295 Thaxter v. Bngbee 313 The N. W. Railway Co. v. Wbiuray 230, 231 Thompson V. Lack 237 Thompson T. Perkins 116 Thomas v. Cook 23 Tingley v. Cutler 47 Thatcher V. Dinsraore.' 49, 482, 535 Thomas v. Dickinson 513 Thomas V, McCann 546 Tliompson v. Hall 523 Thompson v. State 504 Tibbetts V. Flanders 4fl7 Tileston v. Nettleton 486 Toomer t. Dickenson 518, 525 Tom v. Goodrich. 533, 254 Tonebeckbee Bank v. Stratton 214 Toussaint t. Martinnant 245 356 Toiisey v. Bishop 528 Townsend v. Sharp 515 Train & Co^ v. Jones 53, 59, 68, 242, 290, 296 Train v. Jones 59 290 Trent Nav. Co. v. Havley '225 Trimble v. Thome .' 200 226 Truseott v. King '144 Tuberville & Ryan. 157 Tnllmau v. Rochester Bank 292 Tutor V. Pierce 279 Tnrrill v. Boyington 2J1 Turner ex parte ] 243 Turner v. Phillips 40 Tucker v. Bitting. 439 Tull V. David. 503 Turubull V. Trout. 502 Turner v. Hubbell 434 Twopenny v. Young 525 u Olen V. Kittredge 91 United States v. Price 93 United States v. Kirkpatrick 120 United States v. Bradbury 144 United States v. Howel 205 United States t. Thompson 239 University of Cambridge v. Baldwin 158 Union Bank v. Clossey 1:33 Union Bank v. Coster 54, 69, 70, 241, 293 Union Turnpike Co. v. Jenkins 482 United States v. Hillegas 517 United States v. Tillotson 517 Updike V. True 484 Upbam T. Lefazor 143, 144 Dpham v. Prince 294 Upham V. Vail 303, 307 V Vance v. Lancaster. 245 Vanderver v. Wright 297 Van Doren v. Tyader 484 Vandruff r. Rinehart 498 Van Orden v. Durham 534 Van Oatrand v. Reed 501 Van Slyck v. Pulver 488 Venable v. Levick 508 Viel V. Hoag 209, 239 Vilas V. Bacon 210 Vilas V. Jones 311 Vi^as and Bacon- v. Jones et al 211 Violett V. Patten. 50 Voltz V. Harris - 480, 534 Vinal V. Richardson 480 Wagnor v. Colay 514 Waddington v. Gary. 223 Waggoner v. Gray 42 Wagmau v. Hoag 240 Waggener v. Dyer 285 Wain V. Warlters 27, 47, 50, 482, 491 Walden v. Sherburne 255 Walker v. Forbes 241, 294, 298 Walker v. Constable 108 Walker v. Walker 94, 481 Walters v. Walters 205 Walrath v. Thompson 147 Walsh V. Bailie 120 Wankford v. Fotberly. 72, 104 Warrington v. Pnrbor. 89, 248 Ware v. Horwood. 283 Watts V. Hart 185 Watklns v. Vince. 89, 104 Watkius V. Perkins 40, 42 Watson V. Randall 27 Waugh V, Carver 38 Wait V. Brewster 534 XX TABLE OF OASES. Page. Wakeman v. Sutton . » 515 Walker v, McKay 522 Walkerv. Richards 5]5 Wallace v. McCouuell 520 Walls T. JohnBOn 527 Wabath v. ThompsoiL 158, 480, 504 Walsh V. Kitteuberg, 515 Warden v. Tucker. 521 Warncford v. Warneford 500 Ware v. Adams 483 Warrall T. Munn. 501 Washburu v. Pond. 534 Waterman t. Meigs 492 Watson V. Beabout 533 Watts V. Shuttleworth 618 Websterv. Ela 492 Weed V. Carpenter 509 Weedv. Grant. 480 Weed V. Case 545 Welch V. Seymour. 504 Welford V. Beasley 497 Welford T. Beazely. 73, 101 Wells V. Girling 259, 519 WellsT.Maee 269 Welch V. Welch 269 Weston V. Barton 163 Weetv. Bank of Rutland 273 Wetherby v. Mann 249, 253, 534, 535 Wells V. Griffln 527 Wells V. March 508 Wheeler V. Collier 492 Wheelright v. Loomer, 520 Whipple T. Briggs 533 Whitcherv. Hall. 521 WhallT V. Moody 154 Wheeler v. Washburne 207 Wheeler t. WheeJer. 211, 219 Wheeler v. Lewis 299 Wheat V. Kendall 210, 211 Wliipple & Jones v. Briggs 253, 273 Whipple V. Jones et al 260 White V. Merritt 314 White T, Hopkins 214 White V. Woodward 242 White V. Ledwick 6 Whoorwood's case. 275 White T. Proctor. 503 Whiter. Hart 617 Whitmore v. Adams 509 Whitney v. Stearns 49I WhlttierT. Dana 495 WJiitworthT. TiUman. 537 Whitworth's Distributors t. Oliver 517 Willkimson V. Evans............ 494 Wilkinson v. Stewart 534 Wiggin V. Tudor 239, 240 Williams V. Walbridge 154 Williams v. Terrill. 206 Williams v. Gilchrist., I53 Williams v. Stoten 69 Page. Williams V. Leper 16,21,114,189 Williamav. Springs *J* Williamson v. Clmds 155 Willett V. Singer. 531 WilliamsT. Buruea 492 Williams v. Lake 492, 494 Williamsv. Marshall 483 Williams ■^. McHatton 489 Williams v. Townsend 523, 525 Williamsv. Woods 497 Willie V. Green 535 Wilson V. Beddard. 498 Wilson V. Brown 543 Wilson V. Craven 164 Wilson V. Hart 82 Wilson V. Coupland. 24 Willetv. Pringle 185 Winn V. Brooks 260 Wisev. W^ilcox 303 Witchurch v. Be;riB 95 Wilson V. Hunter 510 Wilson V. WUliams 5(» Wilt V. Franklin 481 Wintersmith V. Tabor 519 Wood V. A. &R. R. R. Co 501 Wood V. Priestner 505 Wolffv. KoppeU 115, 116 Woollam v. iiearn. 84 Wood V. Benson 19 Woodv. Beach 48 Woodward v. Picket 53 Woodstock Bank v. Downer. 295 Wooden v. Shotwell 482 Woodniff T. Rinebart. Wright V. Johnson. 480 Wrightv. Storrs 507 Wright V. Wakeford. 500 Wren t. Pearce 53 Wright V. Dannali. Ill Wrightv. Simpson. 207,235 Wrightv. Russell 159,167 Wright V. Morley 262,277 Wrightv. Weeks 494 Wynu T, Brooke 536 Yates V. Donolson 212, 214 Young V. Hall 304 Youngv. Clark 84 Young V. CoTill 306,307 2 Zoustv. Hopkins 502 Zaohrisson v. Poppe 496, 498 Zabriskiev. 0. 0, &C. B.B.C0 526 A TREATISE THE LAW OF MEECANTILE GUAEAITIES, &c. &o. CHAPTER I. Of the Geneeal Law of Guaranties, and the Division OF THE Subject. 1. A GUARANTY is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who is, in the first instance, liable to such payment or performance. (a) 2. Such promise may be made, either by deed, or pa- rol. (1) (a) Appendix, p. 479. (1) It is now well settled throughout the United States, that a consideration is presumed in law, in the case of promissory notes and bills of exchange. Ifeither ig it necessary in declaring upon a bill or note to allege or prove in the first instance a considera- tion for its execution. Stevens v. Mclntire, 14 Maine, 14. Eus- sell V. Hall, 20 Martin, 553. Dugal v. Campbell, 1 Ohio Eep. 115. United States v. Price, 2 W. C. C. E. 460. "Bills of ex- change and negotiable promissory notes are distinguished from all other parol contracts by the circumstance that thej sue prima facie evidence of valuable consideration, both between the origi- nal parties and third persons." Mandeville v. Welch, 5 Wheat. 177; 4, Oond. Eep. 189. 1 2 PEOMISE BY DEED. 3. Writing, sealing, and delivery, are alone essential to the validity of a deed, (a) (a) These being shown, no in- quiry can be made as to the consideration ; {b) (b) nor can any evidence be admitted to contradict, or explain, any thing appearing on the face of the deed, excepting upon the grounds of fraud or illegality ; and, upon failure in per- formance of the engagement, the remedy of the obligee is immediate against the obligor. (c) (1) (c) (A) See App. p. 480. (b) See App. p. 481. (c) See App. p. 481. (a) Com. Dig. Fait. A. 1. 2. 3. (6) The authority of Plowden is usually cited, for maintaining this posi- tion; which is certainly correct The passage in Plowden, from which it is taken, is on]y the argument of counsel; but, as the r,eason3 are given very forcibly, and seem to have been admitted by the court, they are subjoined. " "When the agreement is by deed, there is move time for deliberation. For, when a man passes a thing by deed, first, there is the determination of the mind to do it, and upon that, he causes it to be written, which is one part of deliberation ; and afterward, he puts his seal to it, which is another part of deliberation; andlastly, he delivers the writing as his deed, which is the con- summation of his resolution. And, by the delivery of the deed by him who makes it, to him to whom it is made, he gives his assent to part with the thing, contained in the deed, to him to whom he deliveis the deed : and this delivery is a ceremony in law, signifying fully his good will, that the deed should pass from him to the other. So that there is a great deliberation used in making deeds; for which reason, they are received as a lien final to the party, without examining upon what cause or consideration they are made." Plowd. 308. And Cowel's Inst. 178. Crompt. J. C. 49. 6. are there cited. This is adopted, as authoritj;, in Viner's Abridgment. Title Nudum pactum A. 7. and in Comyn's Digest, Agreement B. 2. but there, carried farther than authorized by Plowden. See c. in. pi. 3. note (1.) (c) A promise to pay the debt of another in writing and under seal is not within the statute of frauds, nor any decision under it. A covenant of itself oonoluaively imports consideration, so that it is not necessary that it should be set forth in the deed. Livingston v. Tremper, 4 Johns. Eep. 416. Tan U'ess, J. in the same case says, the statute of frauds was never meant to alter the Common Law. Any promise under seal was valid at common law. The seal imports a consideration, as much as if it was expressed in so many words. The statute of frauds says merely, that a promise to pay the debt of another shall not be vq.lid, unless in writing. It has no applioation to a writing under seal. (1) Upon the ground of fraud, the consideration may be made the subject of inquiry — that is with respect to its inadequacy or inequality. Gwyne v. Heaton, 1, Browne's Ch. Eep. p. 10. In the case of Bardiston v. Lingvode (3 Atk. 133) & Chesterfield v. PAROL PROMISE. 3 4. A parol promise duly made, upon adequate considera- tion, is equally binding with a promise by deed, (a) But, (a) See Appendix, p. 482. Janisen, Lord Hardwicke treats inequality of the consideration in a sealed instrument as a mark of fraud. It may be inquired into in connexion with other circumstances tending to show the same fact. In Howard v. Edgell, 17 Vt. 27, it is made the sub- ject of inquiry in connection with other circumstances tending to show fraud. In the State of Xew York, there is a statute provision to this effect. In the case of Talmadge v. Wallis, 11 Wend. 106, which was an action upon a sealed note, the court say : " the question of law raised by these pleas, except the last, is whether a failure of consideration can be pleaded to an action brought on a sealed instrument. The cases referred to by the plaintiff's counsel show that anterior to the Eev. Statutes, that question was settled in the negative ; but by these Statutes 2, K. S. 406, 407, it is en- acted that in every action upon a sealed instrument, the seal thereof shall be only presumptive evidence of a sufficient con- sideration, which may be rebutted in the same manner, and to the same extent, as if such instrument were not sealed; provided such defence be pleaded, or notice given thereof. In this respect there is now no distinction between a note with a seal or with- out one. The defence is therefore a good one as it is now pleaded." This case which makes no distinction between a sealed note and other sealed instruments, is confirmed by the case of T. , 25 Wend. 107, which was an action upon a bond. The following is the language of the court : " The Statute relative to evidence in certain cases, 2 E. S. 406, and 77, 78, places the defence to actions on sealed instruments in respect to want of consideration total, or partial, upon the same footing with defences to actions upon instruments not under seal, except so far as relates to the form of pleading. In respect to which, the statute requires that the defence to an action on a sealed in- strument, to be available, must be pleaded or notice given of it." The language of the court in the 17 Vermont, cited above is, that "although now inadequacy of consideration in a contract will not of itself substantiate a charge of fraud, yet, when gross, and connected with other circumstances of a suspicious charac- ter, it may furnish ground to induce a Court of Chancery to rescind the contract. 4 CONSIDERATION. as there are many requisites to the validity of a parol pro- mise of guarantee, it will be convenient to consider, in the first place, what those requisites are : and, when the validity of such parol promise is once established, what further in- quiries remain upon the subject, will be, in a great mea- sure, equally applicable to undertakings by parol, and by deed. 5. Every agreement, not under seal, is, in law, regarded as a parol agreement ; (a) (a) and will not be binding, unless made upon adequate consideration. 6. That consideration must be, either a matter of advan- tage to the promiser, or detriment to the promisee, or both, brought about, in consequence of the previous request, ex- press or implied, of the promiser. Or, as it is expressed by Mr. Justice Yates, in delivering his opinion in the case of Pillau and another v. Van Mierop and another, (b) "(c)Per- (a) See Appendix, p. 482. («) Tide. post. 12. (6) 3 Bur. 1663. (c) This rule of consideration is adopted by Mr. Sergeant "Williams in his notes to Saunders's Reports, in the very words of Mr. Justice Tates, (Forth and Staunton, 1 Saund. 211. not. 2. at the end,) and the following additional cases are there cited. Coggs. v. Bernard, 2 Lord Raym. 719. Neratt v. Wal- lace, 3 T. R. 24. PuUen v. Slates (Stokes) 2 H. Bl. 212. See Barber v. Pox, 2 Saund. 130. The doctrine in Plowden is the one generally received and adopted here. Of course where that is the case the legal import of the seal would preclude all inquiries arising relative to the consideration. It would answer that rigid construction of the statute which includes in the word ' agreement,' the idea of a consideration. The Statute of New York is a marked innova- tion upon this doctrine previously established and held, in that as well as the other States, which have adopted the common law. In Indiana, by statute, the consideration of specialties and other contracts, conveyances of real estate and negotiable paper excepted, may be inquired into under special pleas, or given in evidence on a trial at law. See 10. PAROL PROMISK. 5 haps the best rule is, that any damage, or any suspension of his right, or any possibility of loss, occasioned to the Plain- tiff, by the promise of another, is a suflSicient consideration for such promise ; and will make it binding, although no actual benefit accrues to the party promising." (a) 7. And, in any action, brought upon such promise, the consideration for it must be stated, and proved, 8. For the benefit of trade, bills of exchange, and pro- missory notes, are excepted out of this rule of consideration ; and put on the same footing with deeds, and other special- ties, (b) 9. As, for instance : In an action upon a bill, or note, no consideration need be proved. But, if there be really a want of consideration, in the giving, or transferring them, they may be impeached, by evidence of such want of con- sideration. Thus, in the case of Jeffrey's v. Austin (a) which was an action brought by the payee, against the maker of a promis- soiy note, Erye, Ch. J. admitted the defendant to prove, that the note was delivered in the nature of an escrow, viz. as a reward, in case of a certain event to be brought about by the defendant, but which he did not effect ; and, there- fore, the note was void, for want of a consideration. (6) 10. The distinction herein, between bills,(c) notes, and spe- (A) See Appendix, p. 482. (b) See Appendix, p. 484. (a) Str. 674. BuU. If. P. 274. (6) In the text of Blackstone (2 vol. p. 446,) it is laid down "That, if a man gives a promissory note, he shall not be permitted to aver the want of a consideration, in order to evade the payment. The very note, from the sub- scription of the Drawer, carries with it iatemal evidence of a good considera- tion." And Lord Kaym. 760. is cit«d as an authority. But, this must only be understood, where such note is in the hands of a lona fide holder for a good consideration ; and not where the demand is made by the original payee. Qn, as to the case of a promissory note made and delivered by way of gift.(b) Tate V. Bilbert, 2 Tes. juu. Ill, 115, 1 Roll. Abr. 245, s. 25. (6) 3 Atk. 503, post. pi. 12. (c) 8 Tes. juu, 185. (d) 8 Yes. jun. 504. (e) As to the \&Tai party, see pi. 14. SIGNING AS WITNBSSY \.__ 101 In the case of Welford v. Beazeley,(a) theHefCTidant, pre- vious to the marriage of her daughter with Welford, agreed to give her a certain marriage portion. By marriage articles, it was agreed that this portion should be vested in trustees. The defendant was privy to the articles, although not a party, and signed them as a witness. Upon this question, whether this could be a signing within the meaning of the statute. Lord Hardwicke, Chan., decreed it was, saying : " Here the defendant signed it as a com- plete agreement ; and, as she knew the contents, is to be bound by it" 13. Much more, if one, who is a principal in a deed or agreement sign it as a witness, he shall be bound, nor does it signify what the intention of the subscribing party is, and his signature binds him notwithstanding. Upon these points, Lord Eldon, in the next cited case of Coles V. Trecoihick, commenting upon the last case, "It is true that where a party, or principal, or person to be bound, sign as, what he cannot be, a witness, he cannot be understood to sign otherwise than as principal. As to that, Lord Hardwicke, whom I think it much better to fol- low, has said, that his decision goes upon the assumption of the fact, that the intention of that party was not to sign the instrument as an agreement that was to be binding upon her.. His distinction is, that in Bawdes v. Amhurst, there was no signature but that in the introduction, and the instrument might be not then completely contemplated. But in the other case, (Welford v. Beazeley,) she had signed it ; and though not meaning to be a party, yet acknowledging there was an agreement ; and if she had not signed, but had writ- ten a letter, acknowledging the terms, that would have been sufficient." (a) 1 Yes. 6, 3 Atk. 503. 102 SIGNATURE OF AGENTS. 14. Also, if a person sufficiently authorized as agent to sio'n an agreement, sign it as witness, it is sufficient. This was one of the points in Coles v. Trecothick, (a) in which the signature relied upon was this. " Witness Evan Phillips for Mr. Smith, agent for the sel- ler." And it appearing that, under the particular circum- stances of the case, Phillips was an agent duly authorized, this was held a sufficient signature by him, upon the same principle as in the case of a party or principal. 15. It is clear, from the whole tenor of the cases, and ex- pressly stated by Lord Hardwicke, Chan., in the case of Welford v. Beazeley, above cited, that the word party, in the statute, is "not to be construed party, as to a deed, but person in general ; or else, (continues he,) what would be- come of those decrees, where signing of letters, by which the party never intended to bind himself, has been held to be a signing within the statute ?" The signature of one partner to an agreement of guaranty, in the partnership style, is sufficient to bind the rest. This was decided in the case of Hope v. Cust. (6) Also, in the case ex parte, Gardom, (c) which was an ap- plication to the court of chancery for permission to prove a debt, arising upon a guaranty against the estate of the guarantors. One of the objections to the proof was, that the guaranty was signed by one partner only ; and that his signature could not bind the partnership. But this objec- tion was abandoned. Per Lord Eldon, Chan. " The objection that the partner- ship is not bound by the signature of one partner, is properly given up." (a) 9 Yes. jun. 234. (6) Cited by Lawrence, J., from a note of Buller, J.,,m the case of Sheriflf v. Wilkes, 1 B. R. 48, at p. 53. Post, ch. 6, pi. 3. (c) 15 Tea. jun. 286. SIGNATUEE OF PARTNERS. 103 But, how far au agreement so signed, may, or may not, he valid, under its attendant circumstances, will be considered in the next chapter. Secondly — Who shall be considered as a person lawfully authorized to sign ? 17. A power to enter into engagements of guaranty, does not seem to come within the scope of the general authoiity of a mercantile clerk or agent. 18. But such clerk oi agent may have a general authority for that purpose or they, or any other person may have a special authority, in any particular case, the circumstances attending which are to be pro\ed : and no general rule can be laid down, as to the sufficiency of such agent. Each case must depend upon its own facts. 19. Such agent need not be constituted by writing.* (a) This question does not seem to have been raised in any of the cases at law, which is a strong proof of the truth of the position laid doM'u ; for in those cases where the signa- ture has been that of an agent, he has in very few, if in any of them, been authorized by writing. There is, however, a dictum of Lord Kenyon's, to this effect, in the case of Rucker v. Gamayer, (a) cited below. In equity, the question has arisen, in several instances, (a) See Appendix, p. 501. (a) Post, pi. 23. * The same was decided in Merrit et al. v. Clawson, (12 Johns. Eep. 102) S. C. aff'd. 11 John. 484. It is decided in Lent et al. v. Padelford, (10 Mass. Kep. 333,) that even if the agent had no previous authority to make a con- tract for his principal, yet if the agent proceeds immediately to execute the contract, in any part beneficial to the other party, or prejudicial to the principal, yet if the principal afterward assent to it, and go on further in performance of the contract, it shall bind both parties. 104 APPOINTMENT NEED NOT BE IN WEITING. prior to the case of Coles v. Trecothick, (a) in which Lord Eldeii, Chan., says : " It is clearly settled now that an agent need not be authorized in writing." But this was more seriously questioned in the case ofi Clinan v. Cooke (5) and the case fully argued upon that point ; but Lord Redesdale decided that no written authority was necessary, (c) 20. Not only is an authority in writing unnecessary, but a very slight authority, indeed, amounting to no more than an implied assent of the party charged, to the act of the person signing has been deemed a sufficient authority ; as will appear in the following cases. 21. A friend of the plaintiffs, applying to the defend- ant, on behalf of the plaintiff, and sending the answer of the i)laintiff, with his assent, in a letter signed by himself, has been held to be a sufficient agent. (cZ) 22. In the case of Watkins v. Vince, (e) it was held by Lord EUenborough, at Nisi Prius, that the son of the de- fendant, aged 16 years, who was proved to have signed for his father, in three or four instances, and to have accepted bills for him, was a sufficient agent to sign a memorandum of guaranty. 23. Upon the section of the statute respecting the sale of goods, (/) a broker, employed by one person to sell goods, who agrees with another for the sale of them, makes out and signs a sale note (being a sufficient memorandum,) and delivers one to each party, was considered, in the case of Eucker v. Camayer, as a sufficient agent for both parties.(5')* (a) 9 Tes. jnn. at p. 250. (6) 1 Scho. and Lef. 22 (c) See Appendix, No. TI. id) Wankford v. Potherly, 2 Tern. 322. (e) 2 Stark. Rep. 368. (/) S. 17. (g) This wa.? ruled by Lord Kenyon, Ch. J., at N. P. Esp. E. 105, and 18 recognized in the oases of Stansfield v. Johnson, and Symonds T. Ball, infra. * A broker is the agent of both iDarties ; the neglect of the AGENT A FEIEND — A BROKER. 105 Also, in a late case of Hayman v. Neale, (a) it was decided, that, where a broker had been employed by one party to sell, and another to buy a quantity of hemp, and had entered and signed the terms of the contract in his book, — that such entry and signature were conclusive upon both parties ; — although one of them, upon having a bought note sent him, which was a copy of such contract, immediately ob- jected to the terms, and returned the note. Lord Ellen- borough, Ch. J. saying, after the broker has entered the contract in his book. I am of opinion that neither party can recede from it. The bought and sold note is not sent on approbation, nor does it constitute the contract. The entry made and signed by the broker, who is the agent of both parties, is alone the binding contract. What is called the bought and sold note, is only a copy of the other ; which would be valid and binding, although no bought or sold note was ever sent to the vendor or purchaser. The de- fendant is equally liable, in this case, as if he had signed the entry, in the broker's book, with his own hand. As there is no material difference in the expression of the two sections, as to the agent, it seems, that if, in either of these cases, the broker, doubting the credit of the pur- chaser, had taken the guaranty of another, reduced a suf- ficient memorandum thereof into writing, and signed it, he would have been equally a sufficient agent for that purpose, 24. Upon the same section of the statute, an auctioneer, in writing down the name of the purchaser at a sale, has been considered a sufficient agent, (a) This was decided in (A) See Appendix, p. 502. («) Sitt. M. T. 50 Geo. 3; 2 Campb. K. 337. agent to give a copy of the memorandum of the contract to the vendee, will not affect the rights of the vendor. Merritt et al. V. Clawson, 12 Johns. Eep. 103. 14 106 AN AUCTIONBBB. the case of Simon v. Motives, (a) (or Metivier ;) and, al- though the reports of that case are rather confused and con- tradictory, yet this was the principal ground of the decision, is recognized by Lord Loughborough, in the case of Ron- deau V. Wyatt. (5) He there says, "The case of Simon v. Metivier, vras decided upon the ground that the auctioneer was the agent, as well of the defendant as the plaintiff; and therefore, that the contract was sufficiently reduced to writing." So, in the case of Hinde v. Whitehouse, (c) al- though the decision ultimately rested upon a different ground, Lord Ellenborough, Ch. J., saj'S, " The first question on the letter of the statute, is. Is this a memorandum of the bargain (which in this case had been the auctioneer's writing down the name of the buyer) made hy an agent of both parties 9 In respect of sales of goods, it has uniformly been so holden ever since the case of Simon v. Motivos, and it would be dangerous to break in upon a rule which affects all sales, made by brokers, acting between the parties buy- ing and selling ; and, where the memorandum in the broker's book, and the bought and sold notes transcribed therefrom and delivered to the buyers and sellers respectively, have been holden a sufficient compliance with the statute, to render the contract of sale binding on each. All the great transactions of sale in this great city are so conducted, and stand on this foundation for legality only ; and it is too late, I conceive, to draw it into question." 25. But, the doctrine of the sufficiency of the auctioneer's entry, is said to have been denied to be law, in the case of the sale of any interest in lands, in the JSfisi Prhis case of Stansfleld v. Johnson, {d) And Eyre, Ch. J. is made to (a) 3 Bnrr. 1921. 1. Bl. Bep. 599. BuU. JT. P. 280, there cited. Simon V. Metivier, and said to be tHe best report of the case. (6) 2 H. Bl. 63. (c) 7 B. E. 558. (d) 1 Esp. R. 101. auctioneer's agency. 107 say there, that the cetse of Simon v. Motivos, applied to the sale of goods only, which was a distinct clause of the statute of frauds ; and that the present case was expressly within it.(A) The 17th section of the statute,(a) concerning the sale of goods, provides, " that no contract for the sale, &c., of goods, &c., for the price of 100^. or upwards, shall be good, except the buyer shall accept part, &c., or give something in earn- est, &c. ; or thai some note or memmundum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully autho- i-ized." This is certainly a distinct clause from the fourth ; which relates to the sale of lands, undertakings for the debts of another, and other things, the words of which are in the be- ginning of the present chapter. But it seems very difficult to find any difference in the spirit and intention of the two clauses, as taken from the wording of each ; or, if there be any difference, the words are rather stronger in the clause relative to the sale of goods ; as the term their agents, in that clause, may imply a more direct and authorized agency, that the term other pei^son in the fourth clause. This is the only case, at common law, that directly contra- dicts the decisions in Simon v. Motivos, (jb) and Hinde v. Whitehouse and another, (c) and is only a Ifisi Prius deci- sion. There are two cases, that are sometimes cited as con- firming this case, but which, upon examination, will be found to be clearly distinguishable from it. One was the case of Symouds v. Ball, {J) in the king's bench, where the sale of an interest of land was made by the town clerk of a corpora- (a) See Appendix, p. 503. (a) 29 Car. 2, c. 3. (6) Ante, pi. 24. (c) Ibid. id) 8 T. R. 151. 108 DENIED IN SALE OF LANDS. tion, who acted as agent (a) for the corporation, (the ven- dors,) and wrote down the name of the plaintiff, as pur- chaser ; and all that was decided was that such a memoran- dum could not be deemed a sale or demise in writing ; but, whether from the deficiency of the agency, the terms of the agreement, or signature, does not appear. The other was the case of Walker v. Constable, (b) in the common pleas ; where it was decided, that a sale of lands by auction was within the statute. But the contrary has never been held, generally, as to chattels, but only under the circumstances of each case ; and upon the principle, that the auctioneer was a sufficient agent, (c) Certainly, in the case ot Buck- master V. Harrop, (d) the master of the rolls considers the three last-mentioned cases as having decided, that the auc- tioneer's putting down the name of the vendee has been held not to extend to land. But see pi. 26, and the observations of Lord Eldon, Chan., "there cited. 26. It does not appear that a decision upon this point has (a) It does not appear, in this case, that the town clerk was the auctioneer. (6) 1 Bos. and Pull. 306. (c) 7 Ves. jun. 341. (d) There certainly are many dicta, authorizing the supposition that sales hy auction are not within the statute of frauds. Lord Mansfield says, in the case above cited of Simon v. Motives, that such is the inclination of his opinion, and Wilmot, J. used a similar expression. In the above-cited ctise of Walker v. Constable, Adair, Sergeant, c:>ntended that sales by auction were not within the statute of frauds, to which the court said, that the cases on the subject only applied to the sale of chattels. Le Blanc, J. ruled the point at Nisi Prius, (in the case of Bradshaw v. JTletcher, Lancaster spring assizes, 1807,) (*) as decided. But it does not appear, from the cases, that such point has ever been directly decided, or the principle carried further than as laid down in the text. And . Lord EUenbo- rough, Ch. J. ill delivering his opinion in the above-cited case of Hinde v. Whitehouse, (7 E. R. 558) comments very forcibly upon the probable conse- quences of the opinion expressed by Lord Mansfield and Wilmot, J. upon this point, from which he decidedly dissents. (*) The note of this case was given to the author by Mr. Har- rison, who was counsel in the cause. See Appendix, No. VII. QtJERT, AXJCTIONEER's GUARANTY. 109 taken place as to guaranties ; but, as it is frequent for one person to guaranty the credit of another, in lieu of a de- posit being made, or to purchase for him at an auction, it is material that it should be ascertained whether the auc- tioneer's writing down the name of the guarantor be a suffi- cient signature, provided the other requisites, under the statute, be also complied with. The clause comprehending guaranties is, as before ob- sei'ved, the same as that concerning the sale of lands ; and, if the cases above cited, of Stansfield v. Johnson, Walker v. Constable, and S^'monds v. Ball, are to be considered as aflbrding unquestionable authority that such signature of an auctioneer, under the same circumstances as took place in the cases cited of chattels, would be an insufficient sign- ino- in the case of a sale of lauds, then it follows that a similar signature in respect of guaranty, or for the debt of another, would be insufficient. But the distinction between the sections is very trifling, and the judicial decisions, in the cases of Simon v. Motivos, and Hinde v. Whitehouse, stand upon much better authority than the Nisi Priiis case of Stansfield v. Johnson, which is the only one at law that directly militates against them. Then, as to the case of Buckmaster v. Harrop, in equity, above mentioned, the decision is certainly precisely in point ; but these decisions are very forcibly commented upon as inconsistent, by Lord Eldon, Chan., in the case of Coles v. Treeothick.(a) " Much perplexity," he observes, "has arisen by the case of auctions ; for, in Simon v. Metivier, it was held, as to goods, that the auctioneer taking down the name was a sioniuo- within the statute ; and it is very singular that after, and without disturbing that, it was held, at Msi Prius, by Lord Chief Justice Eyre, that it would not do as (a) 9 Tes. jun. 234, at p. 349. 110 AUCTIONEER AN AGENT IN SALE OF LANDS. to land. Why not ? The form of the two clauses is not the same, but the terms as to the memorandum are exactly the same. That case was followed, certainly, without much argument or discussion upon the bench, according to the report in Walker v. Constable.(a) Unless some distinction can be pointed out, the law is very inconvenient as to sales by auction, particularly if the auctioneer is to be considered the agent of one only ; and if putting down the name and ascertaining the sum, and putting that down upon the con- ditions of sale, which ascertain all the other terms, it is competent after that to the vendor to say, according to Payne v. Cave, (6) that, though the other party is bound, in a degree, by knocking down the hammer, he may at that moment revoke the authority. Upon such terms mankind will not very readily engage in these transactions. If the putting down the name and the sum by the auctioneer is a signins: that would furnish a new class of cases, that the effect being to ascertain the terms of the agreement, it should be good both in law and equity." 27. The result from these several cases seems to be that no rational distinction can be drawn between the two sec- tions ; and, agreeing in the law, as decided and fully recog- nised in the cases upon the 17th section, it must be considered that the writing down the name of a party, undertaking for another at an auction, by the auctioneer, , is, as far as the signature goes, a sufficient signing by a person lawfully au- thorized by the party. The decision in the court of common pleas, in the case of Emmerson v. Heelis,(c) which had been made but not pub- lished previously to the first edition of this work, and of which the author was not then aware, had fully established (o) 1 Bos. and Pull. 306. (6) 3 T. K. 148. (c) 2 Taunt. 38. AGENT MUST BE IN SOME THIRD PERSON; 111 the conclusion to which he had come upon this point. The court having there decided, after argument and time taken to consider, that in a sale by auction of an interest in land, the auctioneer is a sufficient agent of the buyer to sign the contract for him, the fact of bidding being a sufficient au- thority ; and that his putting down the purchaser's name is a siifficieut sisnine. 28. The agent must be some third person ; and one of the contracting parties cannot be agent for the other. (a) This was ruled by Lord Ellenborough, at JVisi Prius, in the case of "Wright v. Dannah,(a) which was an action for goods bargained aiiJ sold, and the following facts appeared in evidence : The parties having entered into a negotiation for the sale of some seed, the plaintiff made the following memo- randum : " Eobert Dannah, Windley near Derby, " 4 Sacks, &c." The defendant overlooked the plaintiff while he was writing it, and desired him to make an alteration in the price, which he accordingly did. This being the only written evidence of the bargain, it was contended for the defendant that there was not a suffi- cient memorandum within the statute of frauds. For the plaintiff, it was submitted that the defendant had made the plaintiff his agent for the purpose of signing the memorandum by overlooking him, and approving of what he had written. Lord Ellenborough, Ch. J., was of opinion that the agent must be some third person, and could not be either of the (A) See Appendix, p. 503. (a) 2 Campb. K. P. Rep. 203. 112 THE AGENT MUST BE SOME THIRD PEESON. contracting parties. He, therefore, non-suited the plain- tiff.(l) (1) Del Credere Commission, — Nature of the contract. An agent acting under a del credere commission, is one who, in consideration of an original premium, ensures to his principal not only the solvency of the debtor, but the punctual discharge • of the debt. Dunlap's Paley's Agency, p. 41. The undertaking of such an agent, was at first construed to be original and independent ; — one upon which the agent could be held in the i3rst instance, and at all events. Such was the opinion of Lord Mansfield in the case of Grove v. Dubois, 1 T. E. 113. Under this definition and construction of the agreement, it was unnecessary to make a demand upon the purchaser; and Buller, J. in the last mentioned case said, he had never heard the inquiry made, whether a demand had been made upon the pur- chaser. The same principle was established in the case of Scott V. McKenzie, 6 Bro. Par. Cas. 380. In that case the defendant, a factor, acting under a del credere commission at the request of his principal, transmitted the proceeds of the sales in a bill on a house in London. The parties to the bill failed before payment. Upon the question of the factor's liability, the court decided that no payment was sufficient but such as would satisfy a debt from the factor to .the principal. Affirmed in the House of Lords. This was in the year 1796. In Houghton v. Mathews, 3 Bos. & Pull. 489, decided in the year 1803, Chambers, J. says, that, when a factor sells under a del credere commission, he becomes responsible for the price, and he is to be considered as between himself and the vendor, as the sole owner (or purchaser) of the goods. In the same case it is said by Lord Alvanley, Ch. J. that the effect of a del credere com- mission is to make the factor responsible for the value of the goods, to his principal. These , opinions were given in 1803. Subsequently in Bell's Commentaries, published in 1816, we find the rule laid down as follows: "The correct legal import of a del credere engagement, is an engagement to be answerable, as if the person so binding himself was the proper debtor. This seems to be the correct legal import of the undertaking ; he is placed m relation to tne principal, precisely in the same situa- tion, as if he had actually received in loan, the monev of the principal. The same rule is laid down in the text of Paley p CHAPTER V. Of the Extent and Construction of the Promise. 1. The general rule, as to the extent and construction of 41 ; but the editor, Dunlap, in a note to p. Ill, states the law to be as laid down in Morris v. Cleasby, 4 M. & S. 574. Subse- quently herein referred to. The doctrine of Grove t. Dubois, was finally overruled, having been previously questioned, by the case of Morris v. Oleasby, 4 M. & S. 566, decided in 1816. The language of Lord Ellen- borough in that case is as follows : " The defendant relies on his commission del credere, or rather on some expressions, which have at different times been reported to have been used by judges of great name, on the effect of such a commission. In correct language, a commission del credere, is the premium or price given by the principal, to the factor for a guaranty. But whatever term is used, the obligation of the factor is the same, — it arises upon the guaranty. The guarantor is to answer for the solvency of the vendee, and to pay the money if the vendee does not ; on the failure of the vendee, he is to stand in his place, and to make his default good. When the form of action makes it necessary to declare upon the guaranty, application to the principal must be stated upon the record : and in all cases it must, if required, be proved." The reason for overruling the former doctrine could not have been more clearly and forcibly stated than it has been by Lord Ellenborough in this case; — namely, that it arises ex vi termini, — from the very nature and essence of the contract itself, — which is an undertaking to an- swer for the solvency of the purchaser, and the payment of the price, according to the terms agreed upon, in consideration of the del. credere commission. Previous to this case, the rule stated in Grove v. Dubois had been questioned and doubted; for in- 15 114 EXTENT AND CONSTRUCTION OF THE PROMISE. an engagement to guaranty, or other security of the like stance, in Baker v. Langhorn, 6 Taunt. 519, and Cunningham V.Forrester, 1. M. and 8.494; thus opening the way for the OTerruling of this case, by the decision in the case of Morris v. Cleasby, (in King's Bench,) 4 M. and S. 566, S. P., Peale v. North- cote, 7 Taunt. 478. It is established now, therefore, in England, that a del credere agent stands in the relation of surety to the principal, and as thus explained, the contract or agreement en- tered into by him, with the principal, comes within the statute of frauds, and must be in writing. In Chitty on Contracts, (Principal and Agent, sec. 1,) it is laid down that the agent's lia- bility is collateral, and his guaranty should be in writing, under the statute of frauds. Of the doctrine of this case Theobold, (Theobold on Principal and Surety, p. 65,) says : " This is the doctrine which prevails at present ; and I think it clear, that the del credere contract, so explained, is within the statute of frauds, and must be in writing." Since the cases above referred to, in the case of Coutousier t. Hastie, decided in 1853, 8 Exch. E. 40, (16 B. L. & Eq. E. 563,) it was held that an agreement by a factor, to sell upon a del credere commission, need not be in writing, not being a promise to answer for the debt, default or miscarriage of another person within the 4th section of the statute of frauds. Parke B., in this case, says : " The other and only remaining point is, whether the defendants are responsible, by reason of their charging a del credere commission, though they have not guarantied by writing signed by themselves. We think they ara. Doubtless, if they had for a per ceutage guarantied the debt owing, or performance of the contract by the vendee, being totally unconnected with the sale, they would not be liable, without a note in writing signed by them, but being the agents to negotiate the sale, the commission is paid in respect of that employment. A higher reward is paid, in consideration of their taking greater care, on sales to their customers, and precluding all question, whether the loss arose from negligence or not, and also for assuming a greater share of responsibility than ordinary agents, namely,— responsi- bility for the solvency and performance of their vendees. This is the main object of the reward being given to them, and though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the consideration is given ; and the case resembles in this respect those of Williams v.' Leper, EXTEKT AND CONSTRUCTION OF THE PROMISE. 115 nature, may be laid down thus ; that no party shall be bound 3 Burr. 1886 ; and Castling v. Aubert, 2 East. 325. "We entirely adopt the reasoning of an American judge, (Cowen, J.) in a very able judgment on this very point in Wolflf v. Koppell, 5 Hill, 458." It would appear from this case, that the doctrine of Grove v. Dubois now prevails in England. The doctrine promulgated by Lord Mansfield, and not that by Lord EUenborough. The CO art in the case of Coutusier v. Hastie, were not unani- mous. Pollock, C. B. holding to the doctrine of Morris v. Cleasby, and quoting the very language of the court, defining the nature of the contract, as expressive of his opinion. He refers to the cases of "Wolff v. Koppell, 5 Hill R. ioS; and Swan v. Nesmith, 7 Pick. R 2-iO, in the following language : " It has no doubt been held in the American courts, that a factor may be liable without any contract in writing, but these, (referring to these cases,) are not binding authorities, and are founded upon the view that the factor is primarily liable."" The other judges were, however, of a contrary opinion. This language is in remarkable contrast to the language of Parke, B., who is content to adopt in complimen- tary terms, the opinion of Cowen, J. in the very case of Wolflf v. Koppell, as not only satisfactory, and of weight upon the point in question, but (as he unquestionably must have thought,) a cor- rect review, and analysis of the precedent cases, both English and American. It may be respectfully suggested, to the remark of Pollock, C. B., that the opinions of the court, in the cases of Swan v. Nes- mith, and "Wolff v. Koppell, " are based upon the view that the factor is primarily liable ;" that though the defendants were, in form, so liable, yet that does not appear in either of the cases to have been a point which affected the opinions. They were de- cided upon the nature of the obligation imposed upon the agent by the receipt of the " del credere commission." The decisions of the courts of the United States are not uni- form upon this question. In Kingston v. "Wilson, 4 "Wash. C. C. E. 310, it was held that the liability of a factor to his principal, for the proceeds of sales made by him under a del credere com- mission, is not affected by the statute of frauds, and therefore may be proved by parol evidence. In Swan v. Nesmith, 7 Pick. 220, decided in 1858, the court,~Parker, C. J. says : " The legal effect of such a contract is to make the factors liable at all 116 LIMIT OF SURETYSHIP. 12 beyond the extent of the agreement, which shall appear, events for the proceeds of the sale; so that according to some authorities, though denied by others, they may be charged in indehetatus assumpsit, or for goods sold to them, and there seems to be no good reason why they should not be so charged, if upon receiving the goods they became accountable; except that their liability is not fixed until a sale is made, or, if upon credit, until the time of payment arrives." The same rule as to the liability of factors, is established in Wolff V. Koppell, 5 Hill, 458, S. 0. 2 Denio, 370 ; also in Eussell V. Davis, 6 Conn. 443. Chancellor Kent states the law in his commentaries to be as above decided ; his language is : " When a factor acts under a del credere commission for an additional premium, be becomes liable to his principal when the purchase money falls due ; for he is substituted for the purchaser, and is bound to pay, not con- ditionally, but absolutely, and in the first instance." 2 Kent's Com. 1st ed. 487. In the 4th Ed. the law is stated to be unset- tled ; and in the last edition, the law is stated in a note as settled in Morris v. Cleasby, and the cases in this country as adopting the principle of that case; namely, that the factor is only a surety for the principal debtor. Great value is to be attached to the position taken by Chan- cellor Kent, in the several editions of the commentaries, as expo- sitions of the law at the time. Opposed to the decisions above' referred to, we have the following cases sustaining the doctrine of the case of Morris v. Cleasby, and the other English cases fol- lowing in its lead ; namely, Thompson v. Perkins, 3 Mason, 232, in which case Judge Story follows the case of Morris v. Cleasby, and insists, that from the nature and terms of the contract, it is necessarily a contract of surety for the payment of the debt of the purchaser, and not one on which the factor can be held liable in the first instance. It is plainly inferable from the language of Washington, J., in the case of Muller v. Bohlems, 2 Wash. C. C. Eep., that the con- tract of a del credere agent is that of a guaranty. In this case, a bill was taken by the factor, from the purchaser, instead of money, without instructions to take bills ; and for other goods sold, another bill upon a then solvent creditor had also been taken, under instructions from the principal, to take bills in pay- ment. The court say : The guaranty of the defendants extended LIMIT OF SURETYSHIP. 117 from the expression of the security, and the nature of the 1 no further, &c., and as follows : " But the guaranty extends to Walters' hill, which was not purchased with the proceeds of the plaintiff's goods, but was given by a purchaser of those goods, instead of money ; and again, — " If the defendants were bound to guaranty, the payment of this debt when contracted, the guaranty continues, because a bill which is dishonored is no payment, &c. ; from which language it is clear that the contract is treated as collateral, to the purchaser's agreement to pay for the goods purchased, and a guaranty that he will pay the debt. The rule of Jlorris v. Cleasby is now adopted by Elementary writers, generally, as the settled doctrine of the law upon this subject. It is so treated by Kent, Ch., in his Comm. 4th Ed. Qii. In Story on Contracts, p. 207, sec. 306, it is said: "When a factor guaranties payment on a sale, in consideration of an ad- ditional recompense, he is said to receive a del credere commis- sion ; and in such case upon failure of payment by the pur- chaser, himself becomes liable personally. But an agent under such a commission is, however, only understood to guaranty the payment of the money by the purchaser, and not the safe remit- tance of it to the hands of the principal. In Paley on Agency, Lloyd's Edition, 42, 111, the doctrine of the case of Morris v. Cleasby is laid down as being now the es- tablished law. Judge Story (in Story on Agency, 3d Ed. sec. 215,) not only states that the doctrine of Morris v. Cleasby is now the law, but insists that upon principle and from the nature of the contract, the relation of the factor to the principal is that of a surety, for the payment of the purchaser's debt. He says: "It has been sometimes suggested, that this contract makes the factor the primary debtor to his principal on the sale. But this doctrine is unmaintainable both upon principle and authority. The true engagement of the factor in such cases is merely to pay the debt, if it is not punctually discharged by the buyer. In legal effect he warrants or guaranties the debt, and thus he stands more m the character of a surety for the debt than as a debtor. Hence it is well established that he is not liable to pay the debt until there has been a default by the buyer. The phrase, del credere, is borrowed from the Italian language, in which its signification is exactly equivalent to our word, guaranty, or warranty. (Story on Agency, sec. 33.) 118 TO TRANSACTIONS BEFOEE BOND GIVEN. transaction, to have been in his contemplation at the time of entering into it.** (a) (A) See App. p. 503. It is apparent from the decision in the 3 Mason, and from his work on agency, that Judge Story has thrown the weight of his authority, unreservedly, into the scale of Morris v. Cleasby, pro- nouncing the doctrine of that case sound, not only on principle, but authority. The language of Chancellor Kent is that of an expositor of the law, and as such, stating it as it existed at the time. The last edition of the Commentaries pronounces unequivocally in favor of the later English doctrine of Morris v. Cleasby. An additional support is given to the doctrine of the cases of Swan V. Nesmith, and Wolff v. Koppell, by the determination of the English court in this late ease of Coutusier v. Hastie. The reference of the court in this case to the case of Wolff v. Koppell, which goes into a thorough examination of the earlier cases upon the subject, and the language of Pollock, C. B., in alluding to the American authorities, plainly indicate that they thought that the doctrine of Wolff v. Koppell, if it had not already, would become the prevailing doctrine in this country. Having not only the opinion of Lord Mansfield, expressed with forcible brevity, in favor of the absolute nature of the engage- ment, but are acquiescence in that opinion for a period of thirty years at least,— not, it is true, without some doubts expressed of its correctness,— the court in the case of Coutusier v. Hastie, might well consider it best, in view of the importance of uni- formity of opinion, between the English and American courts, upon a question of so much international commercial interest, to cast the great weight of their own authority into the scale of the American cases, the question remaining confessedly unsettled in the English courts. The reasoning case of Wolff v. Koppell having thus been made the basis. *See the case of Ludlow v. Simonds, 2 Caines' cases in error, 1, in which the decisions accorded with this principle. L. in pur- suance of the articles of agreement executed between D. & S. and himself, had loaded two ships with sugar and tobacco, which D. consigned to a house in Hamburgh for sale; and oat of the pro- ceeds of which D. was to reimburse himself for the amount of notes given by him to L. for the sugar and tobacco shipped, and LIMIT or STJEETYSHIP. 119 The leading case upon this subject, and upon which all a commission thereon. In case the proceeds should prove in- sufficient for the purpose, it had been agreed that L.'s note should be given for the deficiency, to he endorsed by S. ; and in case they should exceed the amount due to D., the latter was to be account- able for the balance to L. D.'s consignee, without any direction from him, sent the tobacco on its arrival at Hamburgh, to Eot- terdam, in quest of a better market, where it was sold at a loss. It teas held, that this being a departure from the agreement be- tween the parties, discharged S. from his engagement to endorse D.'s note for the deficiency, as it extended the time, which from the terms of the agreement had been intended by the parties for the completion of it, and that the agreement between the parties having mentioned Hamturgh as the place of sale, a deficiency on a sale at Rotterdam was not such a one as by his agreement S. was to be liable for. " To hold him liable notwithstanding the terms had not been complied with, on which alone his responsi- bility was to arise '' — said Spencer, J. in delivering his opinion, " would be substituted another contract in lieu of the one the parties had both made. It has been correctly urged, he observed, that sureties are favorites of courts of equity, and that these courts will not bind them where they are not strictly bound at law. It may in the same sense be said that they are favorites of courts of law, and that they will not be bound beyond the scope of their engagements. These maxims grow out of the considera- tion that in the various transactions of life, men are liable to be called on to render acts of neighborly kindness, without any in- terest or expectation of reward ; that they are frequently called on to become bail, endorsers of notes, guaranties in various modes, and when in such cases, the principal turns out to be insolvent, it becomes a question which of two innocent parties shall sustain a loss. Both courts of equity and law will cast the responsibility on the surety, if by the terms of his engagement he has assumed it; but neither of them will do this where he is not brought within the precise scope of his undertaking. So also where A. of New-York, gave a letter of credit to B. addressed to 0. in Albany, requesting 0. to deliver goods to B. on the best terms, to a certain amount; and C, instead of deliv- ering the goods himself, gave B. a letter to D. in Geneva, request- ing him to deliver goods to B. to the amount, and engaging to be responsible, and D. accordingly delivered the goods to B. In 120 LIMIT OF SUEETYSHIP. ^ the subsequent decisions have mainly relied, is that of Lord an action brought by 0. against A. for the amount, it was held that the engagement of A. to 0. did not make him answerable for goods furnished by another person. Walsh t. Bailie, 10 Johns. Eep. 189. Eobbins v. Bingham, 4 Johns. Eep. 476. So where a bond was given, conditioned for the faithful per- formance of the duties of the oflBce of deputy collector of direct taxes for a certain number of townships, and the instrument of the appointment referred to in the bond, was afterward altered so as to extend to another township, without the consent of the sureties, it was held, that the surety was discharged from his responsibility for moneys subsequently collected by the principal. Miller v. Stewart, 9 Wheaton's Eep. 680. A bond given on the 4th of December, 1813, for the faithful discharge of the duties of his oifice, by a collector of district taxes and internal duties, appointed, (under the act of the 32d July, 1813, ch. 16,) by the president on the 11th of November, to hold his office until the end of the next session of the senate, and no longer, and subsequently appoiiited by the president, with the advice and consent of the senate, on the 34th of January, 1814, is to be restricted (as to the liability of the sureties) to the duties and obligations created by the collection acts passed ante- cedent to the date of the bond. The United States v. Kirk- patrick, 9 Wheaton's Eep. 20. And the second commission, issued under the appointment with the advice and consent of the senate, operates as a revocation' of the first commission issued, under the appointment of the president, which was to continue till the end of the next session of the senate, and no longer; and the liabihty of the sureties in the bond does not extend beyond the duration of the first commission. Where N. E. brought a suit 'against 0. as surviving partner of 0. & K, to recover from him the amount of sundry bills of exchange drawn by J. E. for the use of E. M. & Co., whose agent J. E. was, and endorsed by the plaintiff N. E.', upon the faith of the two following letters, written to him by the defendants C. & N. viz. : « Our friends, Messrs. E. M. & Co., merchants in New York, have determined to enter largely into the purchase of rice and other articles of your produce in Charleston, but being entire strangers there, they have applied to us for letters of introduc- tion to our friends. In consequence of which, we do ourselves the pleasure of introducing them to your correspondence, as a LIMIT OF SURETYSHIP. 121 Arlington v. Merricke. (a) It was an action of debt upon a bond, (5) which, after reciting, that the plaintiff, (the post- master-general,) had deputed one I. J. to be his deputy postmaster for six months, was conditioned for the faithful execution of the office by I. J., during all the time that he should continue postmaster. I. J. was continued in the office after the expiration of the six months ; after which he made default, and this action was brought against his surety ; but the court held, that the general words of the undertaking were confined to the time mentioned in the recital ; and that the defendant was not liable to answer for any default after that period. In the above case, Twisden, J., cited the case between Horton v. Day, (c) " which is entered in this court in Mich. (a) 2 Saund. 403, 411. (6) In this and the following cases, exemplifying this position, the majority will be found to be cases of bonds to answer for the fidelity of servants, clerks, &o. ; bnt the principle is the same : and in all the reasonings upon the subject, both by counsel and judges, the cases are cited as mutual authorities for each other. For this reason, therefore, it seems better to class them to- gether, especially as they will then exemplify, at the same time, the cases of servants, clerks, ments, till 1808, during which period he received moneys, &c., and did not account. — Demurrer and joinder. A distinction was taken in the argument between this and the preceding cases, inasmuch as the bond pointed to some- thing beyond the year ; and no mention was made in it of the time for which the appointment was to continue. But, _pe?' Sir James Mansfield, Ch. J. " I cannot distin- guish this case from those in which it has been decided that a surety is not to be charged beyond the express words of the bond into which he has entered. It is admitted by the replication, that the office of collector in the parish of St. Saviour's, Southwark, is an annual office, and that Arm- strong wa^ continued in that office from year to year. How, then, can it be contended that these persons became sureties for the good behaviour of Armstrong, as collector, at the dis- tance of twenty years from the time when he was first ap- pointed ? Can we say that they intended to be bound for an indefinite period ? With resjaect to the words : ' The wardens of the grand account for the time being, or here- after to be,' used in the condition of the bond, it must be remembered that if the collector proceeded to collect after the death of those with whom he was to account, he would imdoubtedly be boimd to account with the wardens of the succeeding year, for the moneys collected by mm m that 128 LIMIT OP SURETYSHIP. year in which he waM collector. I therefore see nothing to distinguish this case from the case of the Liverpool Water- works Company v. Atkinson, and other similar decisions on this subject. In the case of Hassell and another v. Lang and another,(ffl) the condition of the bond upon which the action was brought after reciting, &c. P II. pi. 1. That one E. had been for some time past and still was collector and receiver of taxes, &c., was conditioned that he should from tim£ to time, and at all times, well and truly pay, &c., all and every sum, &c., as he should from time to time collect and receive from, &c., for or on account of any tax. &c., then imposed, or which should or might thereafter be imposed, &c. Plea, that the office was an annual office, and that the writing obligatory was made to secure the payment of all sums received during the year, and performance during that year. Replication, that E. was collector not only for the year in the plea mentioned, but for divers years after, and breach assigned in a subsequent year. Demurrer and joinder. The court upon argument, and taking time to consider, were of opinion that this being (as admitted upon the plead- ings) an annual office, and as in the recital nothing appears describing an act or intimating a receipt beyond the limits of the then current year, as the condition does not neces- sarily import that the duties shoidd be collected by E. beyond that period, and as the consequence of giving a more enlarged construction would be so very grievous and bur- thensome, it required more clear and certain words to au- thorize such construction than are to be found in the instru- ment, and therefore gave judgment for the defendant. But in the case of Curling and others v. Chalkin and fa) 2 M. & S. 363. L,miT OP SURETYSHIP. 129 otliei-s, (a) Nvhich was in debt against defendants as principal and sureties on a bond with a condition set oat in the decla- ration, reciting stat. 27 Geo. II, c. 28, directing the church wardens, &c, to choose one or more collectors, and to take security, and reciting the appointment accordingly. The point in this case arose principally upon the question, whether the office of a collector under the stat. 29 Ctea 11, c. 38, as especially set out in the declaration, was an annual office. The court was of opinion that it was not an annual office, though an office for collecting rates, &c which were annually imposed, and therefore decided that a plea which alleged iAat iks said office is an annual office, {b) and that the officer accounted for the current year, was held insufficient upon demurrer,* (1) (a) ;j ir. it S. 502. m Qaeiy, wbeth«!- issue should not have been taken upon this avennent, because it is clear, from the last case that the plea, if true, is a good defence. liOrd Edlenborough, in his judgment, rejects the averment as surphtsage, say- ing, that the avennent should have been, thafat the time of executing the 4)ond it was an annual office, but SMely, that was ground of special demurrer ■only. ^The law will subject a man, having no interest in the trans- action, to ,pay the debt of another, only when his undertaking manifests a clear intention to bind him«elf for that debt. Words of doubtful import ought not, it is conceived, to receive that con- struction. It is the duty of the individual, who contracts with one man on the credit of another, not to trust to ambiguous phrases and gtraii^ed constructions, but to require an explicit and plai^i declaration of the obligation he is about to assume. This was decided in Eussell v. Olark's executors, 7 Cranch's Eep. 69, (1) In an action against the surety upon a joint and several bond the condition of which was.that the principal should, from time to time, and at all tinies, so long as he should continue to hold the office without mentioning that the appointment was for one year, — duly account for and pay the plaintiff, all sums of money received by him by virtue of his office, and deliver to plaintiff all books which should come to his possession by virfcut xi 130 LIMIT OF SURETYSHIP. 3. But a party giving a guaranty, shall be bound to the where Clark & Nightingale gave to their friends the following let- ters, upon which it was sought to make 0. & K liable for losses sustained by a credit given upon the faith of these letters, Providence, 20th January, 1796. l^ATHANIEL EUSSBLL, ESQ, Dear Sir, — Our friends, Messrs. Eobert Murray & Co., mer- chants in New- York, having determined to enter largely into the purchase of rice and other articles of produce in Charleston, but being entire strangers there they have applied to us for letters of introduction to our friends ; in consequence of which we do ourselves the pleasure of introducing them to your correspond- ence as a house of whose integrity and punctuality the utmost dependence may be placed : they will write you the nature of their intentions, and you may be assured of their complying fully with any contract or engagements they may enter into with you- The friendship we have for these gentlemen induces us to wish you will render them every service in your power; at of his employment ; — ^held, — upon plea that the appointment was for one year only, and replication that the principal by agree- rnent with the defendants and the plaintiffs remained over, during which time the negligence in accounting occurred,— that the allegation in the plea, as to the time for which the principal was appointed, had the same effect as if the time of the appoint- ment had been mentioned in the condition. It was also held, that such fact appearing from the plea, wag a good defence to the action. It was also further held, that the replication, which should at most, be only a reappointment, would not make the surety liable as for a breach of the condition of the bond. Kitson v. Julian and others, 83 E. C. L. 853 (4 EUis & Blackburn, 853.) This case was decided in 1855, and fully sustains the proposi- tion of the text. Wightman, J. says. '« Although the terms in which the surety binds himself.be general, they may be restrained. If here the condition had recited that the appointment was for a year only, that, according to the authorities, would have had the effect of so restraining the obligation. But that fact is supplied by the plea, which niakes the case the same as if the fact appeared GUARANTIES TO BE LIBERALLY CONSTRUED. 131 full extent of what appears to have been his engagement ; the same time we flatter ourselves the correspondence will prove a mutual benefit. We are, &c. — Clark & Nightingale. On the next day Clark & Nightingale write— Providence, 21st January, 1796. Nathaniel Etjssell, Esq. Dear Sir, — We wrote you yesterday a letter of recommenda- tion in favour of Messrs. Eobt. Murray & Co. We have now to request that you will render them every assistance in your power; and that you will immediately on the receipt of this, vest the whole of what funds you have of ours in your hands in rice on the best terms you can. If you are not in cash for the sales of the china and nankins, perhaps you may be able to raise the money from the bank until due ; or purchase the rice upon a credit, till such time as you are to be in cash for them ; the truth is, we expect rice will, rise, and we want to improve the amount of what property we can muster in Charleston, vested in that article, at the current price ; our Mr. Nightingale is now at Newport, where, it is probable, he will write you on the sub- ject. We are, &c. — Clark & Nightingale. Marshall, Ch. J., all the judges present. The court will pro- ceed to inquire how far Clark & Nightingale were Hable to the plaintiff for the debt due to him from Eobert Murray & Co, In their letter of the 30th, Clark & Nightingale indicate no inten- tion to take any responsibility on themselves, but say that Mr. Eussell may be assured that Eobert Murray & Co., will comply fully with their engagements. In their letter of the 31st, they speak of the letter of the preceding day as a letter of reoommen- in the condition." It would appear from these cases, that the language, "during his continuance in said oflQce," or, "so long as he shall continue to hold said office, or employment," and such like general terms, used in the condition of the bond, will be limited to the time for which the appointment was made; and in the language of Lord Campbell, Ch. J., it will be sufficient if, " the condition recites the appointment, the extent of which is shown by the plea." -132 GUARANTIES TO BE LIBERALLY CONSTRUED. and, for this purpose, the words of the guaranty are to be taken as strongly against him as the sense will admit.* dation, and add, " we have now to request that you will endea- vour to render them every assistance in your power." How far ought this request to have influenced the plaintiff? Ought he to have considered it a request that he would advance credit or funds for Eobert Murray & Co. on the responsibility of Clark & Nightingale, or simply as a strong manifestation of the friendship of Clark & Nightingale for Robert Murray & Co., and of their solicitude that N. Eussell should aid their operations as far as his own view of his interests would induce him to embark in the commercial transactions of a house of high character, pos- sessing the particular good wishes of Clark & Nightingale ? It is certain that merchants are in the habit of recommending correspondents without meaning to become sureties for the per- son recommended ; and that, generally speaking, such acts are deemed advantageous to the person to whom the party is intro- duced, as well as to him who obtains the recommendation. These letters are strong, but they oojitain no intimation of any intention of Clark & Nightingale to become answerable for Eobert Murray & Co. ; and they are ijot destitute of expressions alluding to that reciprocity of benefit which results from the intercourse of merchants with each other. '^The friendship," say they in their letter of the 20th, " we have for these gentle^ men, induces us to wish you will render them every service in your power ; at the same time we flatter ourselves this corres- pondence will prove a mutual benefit." Mr. Eussell appears to have contemplated the transaction as one from which a fair advantage was to be derived. He received a commission on his endorsement. The court cannot consider these letters as constituting a contract by which Clark & Night- ingale undertook to render themselves liable for the engagements of Robert Murray & Co. to Nathaniel Eussell. Had it been such a contract it would certainly have been the duty of the plaintiff to have given immediate notice to the defendants to the extent of his engagements. Eussell v. Clark's Executors,.? Cranch's Eep. 68. *Where a bond with sureties, is given by guardians of an in- fant's estate, appointed by the court of chancery, conditioned that ioth the guardians sh^U faithfully execute the trust reposed GUARANTIES TO BE LIBERALLY CONSTRUED. 133 Iri the case of Nares and another v. Eowles, (a) a joint and reversionary bond had been given by the defendant and others, the conditions of which, after reciting that one J. W. was desirious of becoming one of the collectors of certain duties charged and assessed under and by virtue of an Act (a) 13 E. E. 510v in them, and one of them afterward dies, their surety will still be responsible for the acts of the surviving guardian. The Peo- ple V. Byron, 3 Johns. Oases, 53. Where A. requested B. to give 0. any assistance in his power, by letter or otherwise, in the purchase of goods, adding, "you may consider me accountable with him to you for any contract he may make. Held, that a contract by 0. to pay B. a premium for guaran- teeing a contract which he had made with a third person in the purchase of goods, was within A.'s promise. Meade v. McDow- ell, 5 Binney's Eep. 195. And where a bond with sureties, had been given by a person reappointed to the oflBce of cashier of a bankj conditioned that he should ever " thereafter, during his continuance in said ofBce, well and truly perform, observe, do, and discharge all the duties of his said office, according to law, and the custom and usages of banks," and after such reappointment, as well as previously, he had been guilty of frauds on the directors, which he con- cealed, by borrowing money, as cashier of the hanJc, after his reappointment, and placing it in the vaults, but which he after- wards took out and repaid to the lenders. Held, that the money borrowed by the cashier, on being placed in the vaults, became the property of the bank, and that the taking it out afterward to repay the sums borrowed, was a breach of the condition of the bond for which the sureties were liable. Ingraham v. the President, &c. of the Maine Bank, 13 Mass. Eep. 308. But where the condition of a bond was that A., a clerk in a bank, should " well and faithfully perform the duties assigned to, and trusts reposed in him," it was held to apply to the hon- esty and not to the ability of the clerk ; and that the sureties were not responsible for a loss arising to the bank from the mis- take of the clerk in the overpayment of a check. Union Bank V. Olossey, 10 Johns. Eep. 271. 134 GtJAEANTIES TO BE LIBEEALLT CONSTRUED. made, &c. (43 Geo. Ill, c. 122,) was that the said J. W. should well and truly demand the several rates and duties in the said Act mentioned, and pay the same over in manner dil-ected by the commissioners acting in the execution of the said Act, and the breach of the condition stated in the plead- ino-s, was that the collector did receive divers sums, as and for rates and duties in the said Act mentioned, and did not pay over the same in manner directed by the commissioners acting in the execution of the said Act. The provision of that Act in reference to the point in ques- tion, (sect. 22,) authorized the duties to be assessed and col- lected under the regulations of any act to be passed in the same sessions of parliament, but the duties received and col- lected by the principal, were charged and assessed under a prior Act of the same sessions. It was therefore bbjected on the part of the defendant, that the condition of the bond did not extend to duties received by the collector under this prior Act of parliament. This being an objection upon the face of the record, a motion was made in arrest of judgment, and after argument, the judges were unanimously of opinion, that the words any Act to be passed in the same sessions of parliament bad reference to any Act passed during that sessions, whether prior or subsequent in point of time, and that the duties being assessed under and by virtue of an Act referred to in the Act in question, might be considered as assessed by that Act, and that therefore the condition of the bond applied to the facts of the case, and the bi-each was well assigned. (1) (1) In 3 Kent's Ooni. 12i, it is laid down, that a guaranty is to be construed liberally, for the purpose of ascertaining its lati- tude, or the intent of the parties to it. And for the purpose of ascertaining such intent, it was held in the following cases, that doubtful language was to be taken most strongly against the guarantor. Douglas v- Eeynolds, 7 SUBSISTING OE STANDING GUARANTY- 135 4. Upon a similar principle have proceeded the decisions Pet. 133 ; Drummond v. Preston, 12 East. 237 ; Lamb v. Barker, 3 Wheat. 148; Miller v. Stewart, 9 Wheat. 703. It cannot be extended by construction, to the prejudice of the surety, — ^their liability is strict issimi juris. McClusky y. Crom- well, 1 Kernan, 598. In this case it was held, that a statute requiring a contractor with the state to execute with sufficient sureties a bond, condi- tioned that he will pay all laborers employed by him, on the work specified in his contract, does not proyide for securing the payment of laborers, employed in constructing the work, by a person to whom it is sub-let by the contractor. When he sub-lets the work, and the sub-contractor hires la- borers to perform it, and fails to pay them, they cannot sustain an action upon the bond for their wages. To the same point is Gates T. McKee, 3 Kernan, 334. In Eussell v. Clark, 2 U. S. Oond. K. 423, it is said that,—" It is the duty of the individual, who contracts with one man on the credit of another, not to trust to ambiguous phrases and strained constructions." In opposition to the doctrine, that the construction should be made with reference especially to favoring the guarantor, we have Mason t. Prichard, 12 East. 337, where it was held, that the common rules of construction, would apply ;— in which case the construction was against the guarantor ; Mayer v. Isaacs, 6 M. W. 605, approving the former case; Drummond v. Prestman, 13 Wheat. 515 ; and favoring this last construction, Noyes & Co. v. Nichols, 38 Vt. 173; (Bennett, J.) The guaranty needed "no- extention " in that case " by implication." In a late case. Broom v. Batchelor, in the Exchequer, (37 Eng. L. & Eq. 573,) the court were divided upon the construction of the following guaranty : — " In consideration of the credit given, I hereby agree to guaranty the payment of all bills drawn by Broom, and accepted by Edge, and also, I hereby agree to guar- anty the payment of any balance that may be due." It appeared that at the date of the guaranty, the plaintiff had dealings with Edge ; that these were bills of exchange and a balance, as men- tioned in the guaranty, to a considerable amount; for which and for future dealing, the plaintiff had been responsible upon a guaranty, which was surrendered, and this substituted,— and 136 StIBSISTING OE STANBINff GCAEANTT. upoa the question, as to what shall be considered a subaist- iiig or standing guaranty,*(A) (a> See Appendix, p. 5W. also, that the plaintiff and Edge, contemplated future dealings, of which the defendant was aware. Bramwill B. examined it, with respect to the signification of the word "given," as tha-e connected, and the Word drawn, and also with respect to the explanatory effect of the different clauses upon each other. He conceded the rule to have been settled, that when wordis prima facie iimporting a past consideration, are insensible with reference to extrinsic circumstances, unless un- derstood to mean future, and are capable of that meaning they should have it ; but decided, that the present case was one where the words were intelligible in their primary meaning without extrinsic circumstances to control them. Which meaning was, that they guarantied past transactions only. It appeared, that the plaintiff had said that this guaranty had been substituted for the other, because he desired to have the guaranty on a stamp ; and the defendant contended, although not proved, that he desired to get rid of his liability for future matters, and gave this one for the past debt. The court thought, in any event this should have been left to a jury to decide, but considered that such a decision "ought to have no reference to the construction of the document, which appeared to the judge, to be sensible, with reference to the other extrinsic circumstances which authorize this construction." Martin B. differed from his brother Bramley, and as the con- struction given to it by him, would render the instrument void, for want of a consideration, as it related to a past transaction ; held, with what he considered to be the rule of the latter authori- ties, ut res majis vcdeat quam pereai, that the language should be construed to extend to future credit. Ambiguous expressions, he contended, should be interpreted by the above rule. In sup- port of this rule, was cited by him. Lench v. Strawbridge, 2 Gom. B. 808. Pollock, C. B. agreed with his brother Martin. ' *A. & B. addressed a letter of credit to C, saying, « If D, wishes to take goods of you on credit, we are willing to lend our names as security for any amount he may wish. May 3, 1804." D. took goods of 0. on credit several times, for which he paid • and in December, 1805, took another parcel of goods, for which SUBSISTING OR STANDING GUAEANTT. 137 Thus iu the case of Mason v. Pritchard, (a) the defendant engaged, in writing, to guaranty the plaintiff, " for any goods he hath or may supply my brother W. P. with, to the amount of 100^.," and declared, in assumpsit, as upon a contract by the defendant to guaranty goods to be at any time afterwards delivered to his brother to that amount. It appeared at the trial, before Wood, B., at Worcester, that, at the time when the guaranty was given, goods had been supplied to W. P. to the amount of 66^., and another parcel was supplied afterward, amounting together to 124:1. ; all of which had been paid for : and the sum now in dispute, was for a fur- ther supply of goods to W. P. And the question was, whether this was a continuing contract, for guarantying the supply of goods at any time afterward furnished, as long as the parties continued to deal together ; or, whether it were confined to the first hundred pound's worth of goods fur- nished ? After a verdict for the plaintiff, it was moved to enter a nonsuit, on the ground of the limited construction of the guaranty. But all the court were of opinion with the plaintiff, that this was a continuing, or standing guaranty, to the extent of 100?., which might, at any time, become due, for the goods supplied, until the credit was recalled. The words, they said, were to be taken as strongly against the party giving the guaranty, as the sense of them would admit of; and the meaning was, that the defendant would be answerable at all (a) 12 E. E. 227j 2 Campb. 436. he gave his note, which was not paid. In an action brought against A. & B., by 0., it was held, that the letter of credit did not extend beyond the first parcel of goods delivered to D., and that A. & B. were not liable for an indefinite time, but only to an indefinite amount, for one time. Eogers v. Warner, 8 Johns. Eep. 93. 18 138 CONTINUDfG GUAEANTT. events, for goods supplied to his brother to the, extent of 100?., at any time, but that he would not be answerable for more than that sum. A similar decision, as to the continuance of a guaranty, in much the same terms, had been given by Lord EUenbo- rough Ch. J. at Nisi Prius, in the case, of Merle and others, V. Wells, {a) The guaranty, upon which this action was brought, stated, that the defendant had been applied to by his brother, Wm. "Wells, to be bound to defendants for such debts as he might contract with them ; and then added — ^"1 consider myself bound to you for any debt he may contract for his business as a jeweler, not exceeding one hundred pounds after this date." (Signed,) &c. The plaintiffs continued to supply the brother with goods in his business, above a twelve month afterward, to a con- siderable amount ; during which time, they several times balanced accounts with him, and he paid them above the sum of lOOZ. The question was, whether the defendant's guaranty was limited to the first hundred pounds, for which the plaintiffs gave credit to Wm. Wells, or extended to any sum of that amount which he should thereafter owe them, for goods supplied to him in the business of a jeweler. Lord Ellenborough.— " I think the defendant was answer- able for any debt not exceeding lOOZ., which Wm. Wells might, from time to time, contract with the plaintiffs, in the way of his business. The guaranty is not confined to one instance, but applies to debts successively renewed. If a party means to be surety only for a single dealing, he should take care to say so. By such an instrument as this, a con- tinuing suretyship is created, to the special amount. There must, therefore, be a verdict for the plaintiffs for 100?." (a) 2 Campb. R. 418. CONTINUING GUARANTY. 139 In the case of Saiisome and others v. Bell, (a) the condi- tion of the bond, after reciting that the plaintiffs had agreed to accept bills to be drawn upon them by one W. B. to the amount of lO.OOOZ., and that the defendant, in order to secure the plaintiff against all such acceptances as they might be under for the said W. B., had agreed to join in a bond, &c., was, that W. B. should pay the plaintiffs all such sums of money as he should or might thereafter owe them, by rea- son or on account of their being so under acceptances for the said W. B. or on any other account thereafter to subsist between them and the said W. B. Upon a writ of inquiry executed before Lord EUenbo- rough, Ch. J., he decided that the latter words introduced a new subject-matter, and extended the guaranty beyond the recital, consequently that the plaintiffs might recover for all sums of money to the amount of 10,000/., which they could show to be due on any account subsequent to the date of the bond.* (a) 2 Campb. 39. *The following decision of Mr. Justice Story, of the United States Bench, establishes the same doctrine. The defendants wrote with this clause in their letter to plain- tiff, " the object of the present letter is to request you, if conve- nient, to furnish them, (Messrs. S. & H. H.) with any sum they may want, as far as fifty thousand dollars ; say fifty thousand dollars." The defendants, after speaking of the reason why S. & H. H. require this sum, conclude their letter by saying, " We shall hold ourselves answerable to you for the amount." The letter was from a house in Boston to a house in Eotterdam, written to enable S. & H. H. to embark in extensive mercantile operations at the latter place. It was contended for the defendants, among other things, that this should not be considered a continuing guaranty, but applicable only to the first 50,000 dollars advanced. But for the plaintiff, it was urged that this was a continuing guaranty, not to cover the first 50,000 dollars only; but to cover the 50,000 dollars in which S. & H. H. should be indebted to 140 eONTINUING GUARANTY. See also the cases of Bellain and another v. Edsworth (a) Ch. vi. pL 16. But in the case of Kirby and another r. the Duke of Marlborough and others, (b) it was decided that a bond con- ditioned for the payment of all such sum or sums not ex- ceeding 3,000?., with lawful interest as should or might at any time or times be advanced and lent by the plaintiffs to C, or paid to his use, by his order or direction, was only a guaranty for advances once made to the amount of 3,0001., and not a continuing guaranty for advances to be made at any time. (1) (a), 3 C&mp. 53. (i) 2 M. &. S. 18. the plaintiff at one time, and upon a balance of their accounts. Story, J. " Another question upon the construction of this letter isj whether it contains a limited or continuing guaranty ; in other words, whether it be a guaranty for advances to the amount of 50,000 dollars, and when that sum is once advanced, it is exhaus- ted ; or, whether it covers any further advances made from time to time, after the 50,000 dollars have been once advanced ; pro- vided, at the time of such advances, the balance then due to the plaintiffs does not with such advances, equal the stipulated sum 50,000 dollars ? Upon examining the terms of this, I am of opin- ion, that it is a guaranty limited to a single advance of 50,000 dollars, and that when once this sum is advanced, the guaranties are no longer liable for any future advances, whatever may be the state of the accounts between the parties." (1) A case very similar to the case referred to in the text, Mason v. Pritchard, (12 East. 327,) was lately determined in New York,— Gates v. McKee, (3 Kernan, 237.) The guaranty was as follows, " Mr. Gates, Sir: I will be responsible for what stock M. E. McKee has has had, or may want hereafter, to the amount of five hundred dollars." The court applied the rule of construction as held in the case of Mason v. Pritchard, (13 East. 237,) and Drummond v. Prest- man, (13 Wheat. 515,) and decided the same to be a continuing guaranty. « The language of a letter," says the learned judge, « should be PAYMENTS, APPLICATION OF. 141 5. A surety having been once called upon to pay a sum, and having paid it, without revoking his security, it is not sufficient that he write to the obligee, cautioning him against giving any further credit to the party, for whose payments, or integrity, he is security ; he shall still remain liable, at least, to the amount of the difference (a) between the , sum paid, and the whole sum secured. In the case of Shepherd v. Beecher, {h) the plaintiflF placed his son an apprentice for seven years with the defendant, and was bound in a bond of 1,000?. penalty for his fidelity. In about three years after, the apprentice embezzled cash to the amount of 203?. which the plaintifi" paid, and wrote to the defendant, desiring that he would not, in future, trust the apprentice with any cash. The defendant, however, did trust him ; and, at the expiration of the apprenticeship, he was found to have embezzled 2,750?. An action was brought, upon the bond, against the father, who brought this bill in equity, to be relieved against it, partly upon the ground of the neglect in the master, in trusting the apprentice, after the warning given by the plaintiff. Per Lord Chancellor. " The father continued bound, and ought not to have satisfied himself with sending the lettei-, and taking no care of the matter ; but should have endeavored to have made some end of the matter, and got up the bond : (a) See the case of Mason v. Pitchard, above. (h) 2 P. W. 288. very strong, that would justify the court in holding the guaranty to be a continuing guaranty, which is to cover advances, from time to time, to the stipulated amount, toties quoties, until the guarantor shall give notice to the contrary. I see nothing in this letter to justify such a conclusion ; and in every doubtful case, I think, that the presumption ought to be against it. Cremer v. Higginson, et al. 1 Mason's Eep. 323. 142 PAYMENTS, APPLICATION OF. wherefore, he must continue liable to answer some embezzle- ments, unless there should appear fraud in the master." 6. Where a party is surety for any particular debt, and, after that debt incurred, transactions continue between the creditor and debtor for whom he is surety, in the course of which the letter makes payments generally, the creditor may apply such payments in discharge of the subsequent transactions, and still hold the surety liable for the original debt. This has been decided in the case of a party bringing an action of tort for a false representation, and holds a fortiori in a case of contract. See c. viii, pi. 18, and the principle is fully admitted in the subsequent cases. (1) (1) The sixth proposition is supported by Putnam, et al. v. Eussell, et al. Admrs. 17 Vt. 54. In this case, where D. was in- debted to A., for which he executed' his note and mortgage upon land, and afterwards gave other notes not secured, and before the payment of any of the notes D. died insolvent ; it was held that if, after the execution of the notes, he became further in- debted, and no application thereof was made in the lifetime of D., his administrators could not direct the application to be made upon the notes secured by mortgage, but that the law would first make the application upon the notes not secured. S. P. Briggs T. Williams, 3 Vt, 383. The court will apply the payments upon those debts, the security of which is most preca- rious. Same point. Moss v. Adams, 4 Ired. Eq. 43 ; Jones v. Kil- gore, 3 Rich. Eq. 63 ; Baine v. Williams, 101, and M. 113 ; 10 Sand. M. If the debtor neglect to direct the application, the right to make it belongs to the creditor ; yet it must be one to which the creditor could not reasonably object. Ayer v. Hawkins, 19 Vt. 36. In this case the creditor held three notes which were outlawed, and the debtor made a general payment. Held, that he might apply it upon which note he choose, but that he could not parcel the payment, and thus take all the notes from the statute. Hargraves v. Cooke, 15 Geo. 331, to the same point. Livermore v. Rand, 6 Foster, 85 ; Calahan v. Boarman, 31 Ala. 346 ; Caldwell y, Wentworth, 14 IST. H. 431, But in this last PAYMENTS, APPLICATION OP. 143 7. So, if at the time of surety entered into for subsequent case held that the money could not be applied by a creditor on a debt owed as administrator before one owed personally. Up- ham V. Lefazor, 11 Met. 174, may apply payment to debt not secured. In case neither party make an application, the law re- serves to itself the right to apply the payments according to justice. Callahan v. Boarman, 21 Ala. 346 ; Benny v. Rhodes, 18 Mis. 147; Eobinson v. Doolittle, 12 Vt. 246; Bassey v. Grant, 10 Humph. 238, and in McTarish v. Carroll, 1 Md. Ch. Dec. 160, applied to a debt bearing interest before one without interest. It has been held that it should be applied in the manner most beneficial to the debtor, Hamer v. Kirkwood, 25 Miss. 95 ; Liv- ermore t. Band, 6 Poster, (N. H.) 85, where application was made to the first chai-ges, not barred by the statute of limita- tions. It is to be understood that the right to make such application applies to legal, solid claims, such as could be enforced. Ban- croft V. Dumas, 21 Vt. 456. But held, that if payments had been made upon the illegal sale of spirituous liquors, the pur- chaser could not afterwards have them applied to other charges. Caldwell v. Wentworth, 14 K H. 431. The same principle was detennined in Dorsey v. Wagman, 6 Gill. 59, though in Caldwell v. "Wentworth the creditor could only have made the application upon a lawful claim. It should be applied, as a general rule, to the oldest debt. Mil- lekin v. Tufts, 31 Maine, 497 ; Dows v. Morewood, 10 Barb. S. Ct. 183 ; Hunter v. Osterhoudt, 11 Barb. 3, Ct. 33 ; Caldwell v. Wentworth, 14 N. H. 431; Boody v. United States, 1 W. & M. 150. The court will apply payments according to the understand- ing of the parties, when that can be ascertained. Emery v. Tic- hout, 13 Vt. 15 ; Stewart v. Keith, 12 Penn. State R. 238. The sixth proposition of the text is not sustained by all of the American cases. In the former cases the object of the court would appear to be to protect the creditor's security, and in the latter to benefit the debtor by discharging his property from in- cumbrance, and for the relief of the surety. In Ross V. McLaughlin, 7 Gratt. 86, a payment was directed to be applied in discharge of certain judgments as debts of the highest dignity, and because they were liens upon the real estate. Application was directed to be made in Dows v. Morewood, 144 PAYMENTS, APPLICATION OP. advances the principal is already inde'bted to the creditor, to whom the surety is given, such creditor may apply sub- sequent payments to the liquidation of the fore-existing debt, although the surety had no intimation that any such debt was existing. Kirby and others v. the Duke of Marl- borough and another, ante, pi. 4.(1) 8. But if, from circumstances attending the subsequent payments, it appears that some of them must have been made to meet the subsequent advances, it is a fair inference, in the aibsence of other proof, that they were all so intended, and the surety shall be so far discharged. (a) Thus, in the case of Marryatt v. "White,(a) the defendant had given a promissory note to plaintiff as a security for the amount of flour to be delivered to one M., who at the time ) H. 43 El. B. R. 1 Roll. A. B. 20. pi. 14. (c) 2 Stark. 426. AGREEMENT, HOW FULFILED. 147 So in Simmons v. Keating, (a) it was held that a sale at three months' credit, and payment to be then made by a bill at three months, will satisfy a guaranty given upon condi- tion of a credit at six months. ' 10. But if the security be entered into upon the condi- tion of one credit, the surety will not be liable upon trans- actions at a different credit. Dictum per Lord Ellenborough, Ch. J. in the case of Bacon v. Chesney ; (6) but he admitted the plaintiff to prove that an invoice, stating the credit to be twelve months, which had been delivered long subsequent to the transac- tion, and after action commenced had been made out in mis- take, and that the actual credit given was eighteen months. Per Ellenborough, Ch. J. "If this invoice had been deliv- ered at the same time with the goods, or it had been de- livered under a judge's order, the plaintiff would have been bound by it ; but under the present circumstances, I think he is at liberty to show it is a mistake, (c) (1) (a) 1 M. et al. 1 Mason's Eep. 323. by the name of the Mirfield & Huddursfield D. Banking Com- pany ; that, subsequently, a banking house of the firm of H. & Co. relinquished their business, and took shares in this Company ; and the title of the company was changed to the West Riding U. B. Company. An action was brought in the new proprietors, on a guaranty given to the former firm, foi* advances made to them ; and held that the suit could be maintained. The court say, " It is clear from the act of Parliament, regulating joint stock banks, that the person who is the provisional ofllcer, either represents the whole banking Company at the time of the action brought, or he represents those persons who constituted the bank at the time the contract took place ; that being so, if it be the same bank, — then the public oflBcer represents either the body, as constituted at the time of action brought, or at the time of the contract made ; the act applies to all cases where it is the same lanh. The change of name, so long as the bank consists of the same body, is immaterial. If indeed, there had been some- thing to show that the bank was differently constituted, and that point had been distinctly made out, it might have altered the case, though the court do not say what would have been their judgment had it been diflerently constituted. 166 MAY CONTINUE AFTER A CHANGE. This is admitted in all of the above cases ; and Lawrence, J., in that of Strange and others v. Lee, (ra) says: " A bond may be drawn with the condition now insisted on in argu- ment by the plaintiff's counsel, for the obligor to be answer- able, not only to the present, but to all futtire partners in the house ; but that has not been done here." According to this principle was the previous decision in Barclay and others v. Lucas. (&) This was an action upon a bond, which, after reciting that the plaintiffs, at the recommendation of the defendant and another, had agreed to take one P. J. into their service and employ, as a clerk in their shop and counting-house, was conditioned for his fidelity in such service. While P. J. continued in the ser- vice, a new partner was admitted, after which P. J. embezzled a sum of money, the property of all the then partners ; a verdict was found for the plaintiffs, subject to the opinion of the court. After argument, the judges delivered their opinions seriatim. Lord Mansfield says : "The question upon this case turns upon the intention of the parties at the time of entering into the contract. In questions upon intention, we must look to the subject mat- ter of the contract. It is notorious that there are many banking-houses in the city which continue for generations. This can only be done by a constant succession of partners ; and even if they should not bear the same name with the first proprietors, yet still the house frequently continues under the original firm." Then, speaking of the necessity of employing clerks, and taking security for their fidelity, he adds : " The circumstances of taking in a new partner makes no difference either as to the quantity of the business or the extent of the engagement. He continues to carry on the business of the plaintiffs, and this contract is co-exten- (a) 3 E. at page 491. Q)) 1 T. R. 291, note a. GUARANTIES TO PARTNEE8. 167 sive with his continuance in the house. This is a security to the house of the plaintiffs, and no change of partners will discharge the obligor. Thinking as I do upon this subject, I am glad to find that there is a material difference between this case and that in the common pleas." (a) Wiles, J., concurred upon the same ground> adding an ob- servation upon the inconvenience of taking fresh securities upon every change of a partner, and that the introduction of a new partner did not increase the risk. He then adds : " I cannot say that I accede to the doctrine laid down in the court of common pleas in the case of Wright v. Eussell,(a) to the extent to which it is there carried." Buller, J., agreeing that this was a security to the house, adds, in commenting upon the case of Wright v. Eussell : "Lord Ch. J. De Grey seems to rely much on the taking in a new partner, being the plaintiff's own act, and says that it determined the obligation. But I wish he had gone far- ther, and said what would have been the case supposing there had been mutual bonds ; the one that the plaintiff should continue to employ the clerk; the other, that the clerk should act honestly if the plaintiff ha.d taken in a new part- ner, whether thfey would not still have been obliged to employ the clerk : if that would not have discharged the obligation to employ, it is decisive ; for both obligations are equally binding. Here the charge is not increased. The security is not given for the ability, but for the fidelity of the clerk. If the construction contended for were to pre- vail, it might equally be said that if the plaintiff's trade had been but 300/. per annum at the time of giving the bond, they should not increase it- without an application to the sureties." {b) {a) The before-mentioned case of Wright 7. Eussell, 8 "Wig. 530. (6) And might it not be so contended? for the increase of capital in- creases the opportnnity for ahijsing the trust reposed; and, consequently, 168 GUAEANTIES> TO. 5AETNEBS. This poiat has lately come again under discussion in the case of Metcalf, Bart and others v. Bruin, (a) This was an action of debt on bond, given to the plain- tiff and four others, trustees for the Globe Insurance Com- pany, conditioned for the honesty and faithful service of one T. H. W. to the said company, to which there was a plea of performances and breaches assignied in the replication. A verdict was entered, for the plaintiff, and a question was reserved for the opinion of the court, whether, as the. company was not a chartered company, and many of the members were changed by death and transfer of their, shares between the date of the bond and the breaches: as- signed, the plaintife were entitled to recover at ajll upon the bond. After argument, the judges delivered their opinion serta- tam, as follows : the risk of the: party engaging fot the fidelity of the party -vrho is. to be so mtrusted. It may be further obseryed of this case, that the principle upon which it was decided, namely, that the intention of the parties is to be considered and given effect to, is. entirely consistent with what the judges have said in most Of the oases above cited'. But it seems a question that will admit of some doubt, how far the wording, of the; engagement here may fairly, admit the con- struction put upon it by the court. This appears to have been questioned by Lord Elleuborough in giving his judgment in Strange and others v. Lee, (3 B. R. 484, at p- 490,) which seems to be quite as strong a case, and the decision different. At any rate, it would be prudent for a party requiring such security to have it expressed in stronger terms. In Strange ami others v. Lee, the bond, after reciting that Blyth (whoso debt was to. be guarantied,) was about to open an account with "Walwyn Strange and the other plaintiflb as Us banlcers, was conditioned for BlVth's payment to Walwyn, Strange and; the other plaintiffs, or eitlier of them of all moneys, &o., due for advances upon bills, &o., drawn upon or made pay- able at th^ banking-house of Walwyn, Strange and the other plaintiffs ; Which woi-dg. seem quite as strongly to express the intention of the parties to provide for the security of the house, and not the individuals, as the words above cited from Barclay and others v. Lncas: So in the case above cited (pi m of Myers and others v Edge, the guaranty was given, not to the individuals but to the partnerehip firm, there being five partners, and the note beinc ad' dressed U, three of th^m hy name and Co., which must be presumed to have been the style of the house. *^^ Co) 12 B. R. 40Q, 2,0.amp>. R.,422. MAY CONTINUK AFTER A CHANGE. 169 Loi-d Ellenborough, Ch. J. "We cannot enhance the obligation beyond the terms of it ; the only question, there- fore, is upon the fair meaning of the terms used in it, and we must put upon the word company the sense in which the parties themselves used it in this instrument. We could not, indeed, invert the rules of law, to enable persons to sue as a body or company, who are not a corporation ; but here the bond has been given to trustees, who are under no diffi- culty of suing upon it in their own names. ; and the only question is as to the description of persons meant to be designated under the term ' company.' I will begin,, there- fore, by translating that word according to the subject-mat- ter, namely, the Globe Insurance Company : it meant a fluctuating or successive body of persons, who should, from time to time, be carrying on the business of insurance under the name of the Globe Insurance Company. Now, suppose a bond given to a trustee, to secure the performance of cer- tain services to the commoners of such a common, would there be any difficulty in applying it to the use of the com- moners for the time being, whoever they might happen to be, during the period for which the services were to be per- formed ? There could be no doubt of it. Now, the persons constituting this company labored at the time under an im- perfection to contract, from the fluctuating nature of their body ; and, therefore, they constituted seven persons to be trustees for them, and whether those seven persons were members of the body or not, is for this purpose indifferent. Those seven entered into this contract for the benefit of the company, and if it had not been understood by the contract- ing parties that the company therein mentioned meant a fluctuating company, we must suppose that they contem- plated that the bond might probably be gone in 24 hours, which never could have been meant. It must, therefore, have been intended to secure the faithful performanceof the 22 170 GUARANTIES TO FAETNEES. service to a succession of masters, who might, from time to time, constitute the company. Wilkinson then was admit- ted into the service of the Globe Insurance Company, the parties well knowing that a body so constituted would be continually changing and fluctuating : and they looked to his ' continuance in the service of the said company,' which could not mean a continuing in the service of the same 'in- dividuals, some of whom might be changed before the wax on the bond was cold ; but must have meant the successors of the persons so called the Globe Insurance Company. He is then to account to the said company, that is, to the same successive body ; and he is to indemnify ' the company and the directors, and all other members thereof, from all losses, actions, &c., which may be sued against them, or which the said company or any member or members thereof should bear,' &c., by reason of his neglect. All this looks to the change which might take place in the body. There is nothing contrary to any rule of law in such an agreement. A man may -well agree to serve the subscribers to the rooms at Bath. A contract with the body itself, at large, would not have done ; but a contract with the trustees, for the benefit of the body, gets rid of all the diflSculty. So, if a contract were made with the commoners themselves, of a certain common, the successive commoners could not come into court and sue upon the contract ; but a trust may be created for such a body which would extend to those who were successively clothed with the right of the original body. However anomalous, therefore, the body may be, if we can get at the intent of the contracting parties in their description of it, there is nothing illegal in such a contract. Nor does our opinion clash with any of the cases which have proceeded upon the terms of the respective bonds. A bond to A. cannot be extended to A. and B., unless, as in Barclay v. Lucas, the terms of the bond may be taken to MAT CONTINUE AFTER A CHANGE. 171 explain such an intention. It may be even thought that there was a greater difficulty in that case than in the pre- sent ; but I only collect from it the principle on which it professes to proceed, which was the apparent intention of the parties at the time of entering into the contract, to pro- vide for a service to a changeable body carrying on the same concern. In the present case the intent appears very clearly to look to the service of a iiuctuating body." Grose, J. "The obligors undoubtedly meant to secure the faithful services of Wilkinson, to such persons as should be called the Globe Insurance Company^ for the time being. There is no fraud, nor inconvenience, nor any thing illegal in this : the trustees, therefore, to whom the bond is given, may sue upon it : and, to determine otherwise, would be to violate the manifest intention of the parties." Le Blanc, J. "The difficulty raised in the argument, lies, in considering this, as if it were a bond given to the company, and was now to be enforced, in a suit brought by themselves ; but that difficulty was gotten rid of by the substitution of the trustees, as the obligees of the bond, in the place of 'the company ; and the only question now is, as to the intent of the parties, in the description of the com- pany, to whom the service was to be performed. Now, the persons in contemplation to be secured, were the owners of shares in this company, which, from their numbers, must necessarily vary almost every day ; and, in consequence, the obligors must have intended to become bound for "Wilkin- son's service, to such persons as should be denominated the Globt Insurance Qmipany, so long as they continued owners of shares in that company. I can see no objection to an oblio-ation to a trustee, conditioned for the faithful service of one, to such persons as should be partners in Child's banking-house, while they continued partners ; and this is, in effect, the same thing. 172 eCAEANTlES TO JARTSnefflS,. Bayley, J. "This bond must receive guch a construction as the parties meant it to have at the time they entered into it : and, 1 must consider, that they meant to secure Wilkin- son's feithful service, to such persons as the company, for the time being, should consist of. The obligation was to be co-extensive with the service which he continued to perform to the company, called the Globe Insiirance Company. If this were not so^ the single change of one out of 900 per-- sons would have put an end to the obligation ; and the pro- bability was, that, in a week, or a mouth, after the execu- tioni.of the bond, some one person would drop ofl". Now it is impossible to consider, that, for so short a time only, the continuance of the service should have been in the contem- plation of one party, or the responsibility attached to it inj that of the other. In Barclay v. Lucas, (a) the obligation was understood, as intended to secure the service, to such persons as should become partners in the same house of trade. This mode of considering the case gets rid of the difficulty stated in the argument* that, if it were extended beyond the continuance of the then existing members of the body, it should include all who then were,' and should thereafter become members.: but it means only the com- pany; for the time being, which gets rid of the difficulty." 14. Another question arises out of the case of Barclay and otilers' v. Lucas, namely, supposing, from the wording of a, guaranty, or other security, the old partners, remain- ing in a firm, after a change, are entitled to its prospective advantageSi whether they can recover m&re than their share of the partnership property ? The breach assigned in that case was, that P. J. received a certain sum of money, three-fourths of which was the pro- perty of the plaintifi"si audi which three-fourths he refused to (o) Ante, pi. 13. SUBSEQUENT PAETNEES. 173 pay, .&c. In the case of "Wright t. Eussell, (a) the bond was given to the plaintiff only, and the breach assigned was, the receiving a sum of money, the property of the plaintiff and his partner, which he refused to pay over. It was ques- tioned by Gould, J., how far this breach was well assigned; and, according to the report in Blackstone, the decision would have gone upon this point, and leave was, in con- sequence, given, to amend the replication : but, as the court, according to the report in Wilson, had expressed so strong an opinion, that the engagement never could enure to any other person than Wright aloine, the pleadings were not amended, and judgment was given for the defendant. 13. But, it seems, that if a security be so framed as to protect not only the party or parties named, but the house, (as is said in Barclay v. Lucas,) or, not only the present, but oil futwe partners, (as is said by Lawrence, J, in Strange and othej3s v. Lee) or the company, (as in Metcalf and others V. Bruin) in such case all future partners must be entitled to tfie benefit of it .; otherwise, the semrity of the house, as it is termed, means nothing at all ; and it is' only a security to certain persons, as long as they continue in that house. In the case of Barclay v. Lucas, (S) Lord Mansfield, Ch. S . and BuUer, J. appear both to be of this opinion. The former says, " I think the plaintiflfe are entitled to the whole sum em&ezzled, and if so, they are clearly entitled to less." The latter says, " This case is distinguishable from that in the common pleas (Wright v. Eussell). There, the breach assigned, was, for embezzling the whole partnership money 5 and I observe, from the report of that case, that Mr. Justice GcHiid lays much stress upon the point, that the breach assigned was for stealing the whole partnership money, (a) 3 was. 530. 2 BI. Rep. 934. (b) 1 T. K. 291, note (a) 174 PARTNERS. ■whereas it should have been for the plaintiff's money only, I confess, / do not see the force of that objection." Nor was any objection of this nature raised in Metcalf and others v. Bruin, before cited. 16. Difficulties certainly appear in the way of carrying into effect the principles above laid down, as to the continu- ance of a guaranty, after a change in a partnership firm. However, it cannot be denied, that a guaranty, or other security, might be so given, and have such effect, without directly contradicting what appears to have been the opin- ion of so manj'^ judges, and going, very nearly, to contrar diet a decided case, (a) 17. So where a guaranty or security is given on the behalf of one person, or of certain persons constituting a partner- ship firm, and another, or others are afterward introduced or other material change take place after which the parties to whom the security is given, continue their dealings, know- ing of the change, there is an end of the security. In this case of Bellain and another v. Edsworth, (b) which was an action of debt on bond ; the condition recited that P. M. had for some time acted as agent for the plaintiffs in receiving moneys, and would continue to receive moneys, &c. for them ; and was, that the said P. M. should give a just and true account of and pay all sums, &c., which he should thereafter receive on account of the plaintiffs. Plea that P. M. did account and pay. Eeplication assigns several breaches in not paying over moneys received by P. M. on account of the plaintiffs. It appeared in evidence, that, pending P. M's. employment, he entered into partnership with two other persons, and that the plaintiffs afterward employed him and his partners as (a) See Appendix, No. VIII. (6) 3 Oampb. 53. EXECUTORS AND ADMINISTRATORS. 175 their agents, and the moneys unaccounted for were received after the commencement of the partnership. Per Lord Ellenborough, Ch. J. When the plaintiffs in- trusted their agency to the new firm, the defendant's responsi- bility was at an end. He by no means undertook for the good conduct of any future partner with whom P. M. might associate. The recital and the whole scope of the condition show that the suretyship was confined to P. M. individually. Of Executors and Administrators. 18. An action upon a guaranty, given by A. to B., may be brought by the executor or administrator of B. (a) 19. Or, it may be brought against the executor or ad- ministrator of A. (b) (a) Also, in Roll's Abridgment, (c) it is said, that " an action on the case lies against the executor or administrator, as well upon a collateral promise, as where the promise is for a debt." And this is confirmed by the case of Saymond v. Gent, (d) which comes immediately to the point here. "If A. buy goods of B., and because B. distrusts the payments of A., T. S. promise that, if A. does not pay, he himself will ; T. S. dies, and the money is not paid at the day. The execu- tors of T. S. may be charged in an action upon the promise, although it be collateral." 20. But this must be understood to refer to cases where the debt, or duty, the payment, or performance of which is guarantied, accrued prior to the death of the party, by or against whom the action is brought. 13 Tes. Jun. 131. equally charges them with the loss he has sustained by trusting to their assurances. The fact that Robert Murray & Co. were not, in January, 1796, in solvent circumstances, is not clearly made cub ; but the cause does not rest entirely on this fact. The principle that a mistake in such a fact as the real internal solid- ity of a mercantile house, whose external appearance is unsuspi- cious, shall subject the person representing their solidity to another to the loss sustained by that other in trusting to this misrepresentation, is not admitted. Merchants know the circum- stances under which recommendations of this description must be given. They know that when one commercial man speaks of another in extensive business, he must be presumed to speak from that knowledge only which is given by reputation. He is not supposed to have inspected all the books and transactions of his friend with the critical eye which is employed in a case of bankruptcy. He must, therefore, be supposed to speak of the credit, not of the actual known funds, of the person he recom- mends ; of his apparent, not of his real, solidity. In such a case MUST BE FRAUDULENT. 309 in equity, charging the defendant with wilfully and fraudu- lently misrepresenting the circumstances of a partnership, and thereby inducing the plaintiff to advance a sum of money to enable his brother to become a partner therein. Lord ErsJcine, Chan., comments upon the three last men- tioned cases, and makes the same distinction. He there says, " The proposition is not, that if a man, being asked whether a third person may be trusted, answers, ' you may trust him ; he is a very honest man, and worthy of trust,' an action will lie if he prove otherwise. There must be knowledge at the time ; that is the sound principle, that the defendant, knowing the person to be dishonest, in- it is certainly incautious and indiscrete to use terms which imply absolute and positive knowledge. It may perhaps be admitted that in such a case fraud may be presumed on slighter evidence than would be required in a case where a letter is written with more circumspection. Yet, even in such a case, where the com- munication is honestly made, and the party making it has no interest in the transaction, he has never been declared to be re- sponsible for its actual verity. The reason of the rule is, that merchants generally possess, and are therefore presumed in their correspondence to speak from, that knowledge only of the cir- cumstances of other merchants which may be acquired by observ- ing their course of business, their punctuality, and their general credit. This principle appears to have been fully considered in the case of Hay craft v. Greasy, in which all the authorities were received. It does not appear that a single decision has ever been made asserting the liability of the writer of such a letter. The case of Haycraft v. Creasy denies his liability; and that case ap- pears to this court to have been decided in conformity with all previous adjudications. It is therefore the opinion of the court that Clark & Nightingale, having believed, and had reason to believe, so far as is shown by the evidence in this cause, that the representation they made to the plaintiff of the character and circumstances of Rolert Murray & Co. was true, are no't liable to the plaintiff in consequence of that representation for the credit he gave to that company. Russell v. Claris executors, (7 Crunch. Rep. 69.) 310 MISEEPKESENTATIONS ACTIONABLE, solvent and unworthy of trust, made the representation, and that is the subject of an action, or of a bill in equity, where it is necessary and fit that equity should interpose its con- current jurisdiction."(2) 13. In the case of Hutchinson v. BeU,{a) Sir J. Mansfield^ Ch. J., questions the propriety of these decisions, even upon the ground of fraud, as trenching upon the provisions of the statute of frauds. He there says, "I have always doubted of the utility of entertaining such actions as have been supported iu the late cases of this sort, because they have the effect of enabling a man to do that indirectly which the statute of frauds expressly forbids to be done in direct terms — to guarantee the debt of another." But as long as the principle upon which this action is maintained is confined to that of fraud, it certainly cannot interfere materially with the statute. Any other view of the subject would tend to sanction a most mischievous and dangerous spieces of deceit ; and in the previous case of Hamar v. Alexander, cited below. Sir J. Mansfield seems to be of that opinion. 14. If a fraudulent character be given of one to induce another to trtist him, accompanied by a parol promise to pay if the other do not, the party giving such false charac- ter shall be liable for the misrepresentation, although accom- panied by the promise, which is void under the statute of frauds. (a) 1 Taunt. Eep. 564, post. pi. 16. (2) It may not be immaterial to observe that the whole doc- trine comprised in this set of cases is very concisely expressed in the following rule of the civil law : — " Consilii non fraudulenti nulla obligatio est ; cmterum, si dolus et calliditas intercessit, de dolo actio conipetit." L. 47, ff de Eeg. Jur. See the observations upon this subject in Evan's Pothier, vol. i, No. [446,] p, 296, note (e). MISREPRESENTATIONS ACTIONABLE. 311 Such was the case of Hamar v. Alexander,(^a) The rep- resentation there was, "that one Leo was a good man, and might be trusted to any amount ; that the defendant durst be bound to pay for the said Leo ; and that if Leo did not pay for the goods he would." On the trial of the cause it was objected that the repre- sentation having been accompanied by a promise to pay — which, not being in writing, was void under the 4th section of the statute of frauds — this action could not be main- tained for the deceit, because the injury might have arisen from the void promise, and not from the false representation. But the objection was overruled, and after verdict for the plaintiff, it was moved, in the court of common pleas, as a ground for setting aside the verdict, and entering a non- suit. After argument, and time taken to deliberate. Sir J. Mansfield delivered the opinion of the bench. After describing the nature of the action, he says : "The objection to the verdict is rather curious, namely : that after the defendant had represented the circumstances of Leo in strong terras, he concluded by telling the plaintiff that if Leo did not pay him he would. This promise could cer- tainly never have been sued upon, since the statute of frauds. And that circumstance is made the foundation of a plausible objection to the recoveiy in this case. It is impossible to say how much mischief may have been done by the misrep- resentation, and how much by the promise ; but, upon the whole, I think the verdict ought to stand. I am far from wishing to sustain an action simply upon misrepresentation ; but there never was a time in the English law where an action might not have been maintained against the defend- ant for this gi-oss fraud. The only question then is, whether the addition of this promise, that if Leo did not pay the (a> 2 IT. E. 241. 312 THOUGH COUPLED WITH A PEOMTSE TO PAT. defendant would, will prevent the plaintiff from having a right to support the action. I think that it will not. There is no proof that the plaintiff ever considered the defendant as his debtor, or ever called upon him for the money, or re- lied upon his promise in the least degree. In the next place, we must suppose every man to know the law j and if the plaintiff was acquainted with the law, he must have known that the defendant's promise was worth nothing, and could have given no credit to him upon it He cannot have considered it in any other light than as a mode of expi-es- sion, by which the defendant intended more strongly to ex- press his opinion of Leo's circumstances. There being, therefore, no objection on the ground of this promise being added to the other words, we are of opinion that the verdict, is right."(3) * (3) A case has since come before Lord Ellenborough, at Nisi Prius, Smith v. Harris, (2 Stark. Eep. 47,) which, in terms, is hardly distinguishable from the above, the words being, " that plaintiff might lend one H. 20?. or 30Z., and that he would be perfectly safe, and that he (defendant) would see the plaintiflt paid." Lard Ellenborough. " A promise having been made to guar- antee the plaintiff, which is within the statute, there being no note in Writing, he brings an action for the misrepresentation. This is nothing more than a guarantee within the statute of frauds." And the plaintiff was non-suited. From this report it should appear that the ground of nonsuit was, that a misrepresentation being coupled with a guarantee, the whole must be considered as a guarantee. But it is to be observed that it does not appear by the report that any evidence was offered to show that the misrepresentation was wilful, and as the case in the text was not at all referred to, and the case is reported rather with a view to another point, (see post. pi. 19,) it is to be presumed that the nonsuit arose from want of such evidence. * Upon the following representation as to the credit of an in- dividual : " The bearer, D. D. M., is in want of some lumber to DURATION OF LIABILITY. 313 15. A party shall be liable for the wilful misrepresenta- tion of the character of another, although he add to such representation expressions showing that he did not intend to be accountable for it. In the case of Eyre and another v. Dumsford,{^d) above cited, the defendant having advised the plaintiffs that they might safely execute an order given by a third person for goods, added, " But we give this advice without our preju- dice." But, as it appeared that the defendant knew the party not to be trustworthy, he was held liable notwith- standing. 16. A question has lately arisen as to the time for which a person shall be responsible, as for a false representation, upon a chaiacter given to another, to induce a third person to trust him ; but no general mle can be laid down upon that subject. It must depend, like the continuance of the guarantee before treated of (5), upon the particular circum- (a) 1 E. E. 324 ante, pL 9. (6) Ante, c. v. pi. 4. finish up a house at Canton. He is a responsible man, and will pay you according to agreement, or I will accept his order for any amount not exceeding 500 dollars, in 30 days " — it was held that the representation contained two clauses, in the alternative, upon either of which the plaintiffs might rely ; and that the ex- tent of the first clause was that D. D. M. was a responsible man, and would pay according to agreement, to the amount of the lumber sufficient to finish the house at Canton. Thaxter v. Bugbee, (5 Cush. 221.) The allegation that the defendant well knew the representa- tion to be false, is not sustained by proof that the representation was false, and that the defendant made the representation igno- rantly, without making the proper inquiries. (13 How. U. S. 198.) Where false representations are made with intent to injure, and injury is suffered by relying upon them, an action therefor may be maintained, though the persons making such repreaenta- 40 314 IN RESPECT OF CHARACTER GIVEN. stances attending the representation ; and the understanding iind conduct of the parties. In the case of Hutchinson v. Bell (a), which was an action for misrepresentation, the circumstances were these. In the month of April the plaintiff had been referred, by one 8. T., who applied to him for credit, to the defendant for his character. Upon the defendant's giving the representation, which turned out to be false, and upon which the action was after- ward brought, the plaintiff observed to him, " That in open- ing an account with another, the difficulty was not so great in getting paid for the first goods, as in closing the account." In consequence of the representation then given by the defendant, the plaintiff commenced dealing with 8. Y. ; and the first five parcels of goods which he sold him were regu- larly paid for. Previously to the 30th of May, the plaintiff had intrusted him to the amount of 84?. more ; and one of the questions made at the trial, and which was afterward moved in the court of common pleas, was whether the de- fendant was liable to make good this sum. Upon the motion for the rule Nisi, Heath, J. remarked, "That if the action could be at all maintained, it would be very inconvenient to limit it to the goods first supplied ; for he had seen many cases of conspiracy to defraud tradesmen, in which the goods first delivered were always punctually paid for." Sir J. Mansfield, Ch, J., observed, "That this was a new action, and went fuilher than any case hitherto decided ; and that the effect of the evidence was to show a treaty for enter- ing into an account with this man as a general customer, and (a) 1 Taunt. Eep. 558, tions derived no benefit from them. White v. Merritt, (3 Selden, N. Y. 352.) DURATION OF LIABILITY. 315 not an inquiry directed merely to the payment for one parcel of goods." The court took time to consider the case ; and the Chief Justice afterward delivered the opinion of the court. " One point, on which I had doubts at the trial, has since been fully considered ; namely, whether the credit given on a representation of character, is to be confined to the first parcel of goods. There is much weight in the evidence of the wit- ness, who stated that the plaintiff expressed his apprehension of the great difficulty of closing an account once opened ; and considering that, I think it reasonable to make the defendant answerable for the credit given to Young, on the faith of that representation, provided it be not carried to an unreasonable extent, and be confined to a reasonable time." Another case upon this subject, is the case of DeGraves v. 8mHh, before Lord Ellenborough, at Nisi Prius, with a MS. report of which the author has been favored by Mr. Camp- bell. On the 7th of December, 1808, one W. R., who had formerly been in partnership with the defendant, wished to purchase goods of the plaintiff to the amount of 421. and referred him to the defendant for his character, which the plaintiff inquired after generally/, and not with reference to an]/ particular transaction in view. The defendant said W. B. once had 7,000/. in the concern. "I should still lend him 1,500?. on his own security ; and I consider him a very honest man, and trustworthy." The plaintiff accordingly let W. R. have the goods, and went on dealing with him for nine months. W. R. paid for the first two parcels, but at the close of the dealing was indebted to plaintiff 242?. W. R. then became insolvent ; and as it appeared that the defendant knew his circum- stances when he gave the character, the plaintiff brought this action. 516 IN EESPECT OF OHAEACTER GIVEN. For the defendant, it was contended that this action could not be maintained, as the goods furnished on the faith of the plaintiff's representation had been paid for ; and that such a representation could not be allowed to operate as a perpetual guarantee. On the other side, the last cited case of Hutchinson v. Bell was relied on, as deciding that the de- fendant in sufch a case, was liable for goods furnished within a reasonable time ; which, it was contended, under the cir- cumstances, this was. Per Lord Ellenborough, Ch. J. " In the case in the common pleas, the plaintiff had stated to the defendant, that Young, the third person, was about to open an account with him as a general customer. For that reason, the defendant might be liable for any loss that arose to the plaintiff, from subsequent dealings, within a reasonable time. But to say in ordinary cases of this sort, that the person who gives a representation of the credit of a third person shall be liable for other parcels of goods afterward furnished to him, would be to make the representation a continual guaranty, and to repeal the statute of frauds. Where cases appear, of a conspiracy to cheat a tradesman, by means of paying him for one parcel of goods, they will be determined by their own peculiar circumstances. Nothing of that kind has been proved here. The observations of the learned Judges, in Hutchinson v. Bell, must be confined to the case there in judgment before them. The plaintiff having been paid for two parcels of goods, furnished after the repre- sentation, has failed to show that he has sustained any loss by reason of the defendant's deceit ; and must therefore be nonsuited." 17. It also appears from the above cited case of Hutch- inson V. Bell, that if one who has sold goods on the repre- sentation of another concerning the buyer's circumstances, afterward tell the buyer that he will sell him no more goods, APPLICATION- OF PAYMENTS. 317 without further references, and after that intrusts him to a greater amount, the person making the representation is not Hable beyond the sum due at the time of the seller's making such declaration. ^ 18. In a case of false representation, where the transac tions between the creditor and debtor are continued beyond a period when the person giving such false representation continues to be liable on account of them, but without a settlement of the balance up to that period ; and money is afterward paid, generally, by the debtor to the creditor, he may apply such payments to the account of the subsequent transactions ; and the person giving the false representa- tion, shall still be liable for the balance due before the period when his liability ceased. This was another point in the above cited case of Hutchin- son V. Bell. The plaintiff, by his conduct on the 30th of May, was considered as having put an end to the liability of the defendant beyond that period. There was then a balance of 84?. due from 8. Y. to the plaintiff ; and sales being continued by the plaintiff to S. Y., afterward the latter had at different times paid, generallj'-, as much money as would reduce that balance to 23/. if specifically applied to it. The jury found a verdict for the 84Z. and the court held they might so do ; Sir J. Mansfield, Ch. J. saying — " Two sums of money are afterward paid, one in July, the other in September : neither is paid specifically on account of the balance of 84?. but on the general account. And where a person pays money, not specifying on what account it is paid, it is in the power of the person who receives it, to apply it to what account he pleases : therefore the plaintiff is entitled to apply these payments to the goods last delivered; consequently the verdict found at the trial is right."* *'When a debtor owing several debts makes a payment to a creditor, the debtor has a right to apply it to what debt he 318 chaeactees to seevants. Of Chaeactees Given to Seevants. 19. It was stated in the begianing of this chapter, that the subject of characters given to servants depended upon the same principles as those given to mercantile houses. But it may be useful to repeat here, specifically, that per- sons giving characters of servants, are liable to answer for any damages which the party taking such servant may suffer, from any wilful misrepresentation of such character, either in asserting what they know to be false, or suppressing what they know to be true. It would be well for the interest of society, if this were more generally considered ; for char- acters are usually given too carelessly and indiscriminately, and not unfrequently without due attention to truth. In an action of this description the party of whom the char- acter is given is a competent witness. So decided by Lord Ellenborough, Ch. J. in case of Smith V. Harris, (a) because, as he said, " the proceeding was not for the debt, but was collateral and founded on the alleged fraud of the defendant, and the witness would be equally responsible whatever were the result of that cause. 20. There are indeed, certain cases of misrepresentation as to the characters of servants, for which the persons giv- ing them are liable to be fined. (a) 2 stark. Eep. 47. pleases; if he makes no specific assignation, the creditor may apply it as he pleases ; and where neither party appropriates it, the law will apply it according to its own notion of the intrinsic justice and equity of the case. Oremer v. Iligginson, (1 Mason's Rep. 323) ; Mann v. Marsh, (3 Gaines Rep. 99.) Where a creditor has two demands against his debtor, and the debtor pays a sum of money, without directing to which it shall be applied, if the amount paid exceed one of the demands, but is exactly equal to what remains due on the other, it will be con- sidered as having been paid in discharge of that other. Robert V. Oarnie, (3 Gaines' Rep. 14.) servants' CHAKACTEES STATUTE. 319 These arc caries arising under an act of Purliameut, (a) which provides that, " if any person shall knowingly and wilfully pretend, or falsely assert in writing, that any ser- vant has been hired or retained for any time, or in any capacity whatsoever, other than that for which he was hired ; or for the service of any other person : or that any servant was discharged, or left his service at any other time than that at which he was discharged, or actually left such service ; or that any such servant had not been hired or employed in any previous service, contrary to truth, he shall for every such ofiense forfeit 20?." 21. And the sixth section directs such penalties " to be re- covered before two justices, on conviction, either on confes- sion, or the oath of one witness ; half to the informer and half to the poor : and if such offender shall not immediately pay the same, together with 10s. for the costs attending such conviction ; or shall not give notice of appeal, and enter into recognizance in manner hereinafter mentioned, such justices shall commit him to the house of correction, or other prison, there to remain and be kept at hard labor, without bail, for any time not exceeding three nor less than one month, or until he shall pay the sum so forfeited, together with such costs as aforesaid." The tenth section, giving an appeal, enacts, "that any per- son who may think himself aggi'ieved, may appeal to the next sessions, upon entering into a recognizance with two sureties, in 20?. each, to try such appeal, and abide the order of, and pay such costs as shall be awarded at such sessions : and on proof of such notice and recognizance, the justices shall hear and finally determine such appeal in a summary way, and award such costs to either party as they shall think proper, which shall be binding and conclusive to all intents and purposes ; and no such conviction, order or other pro- (a) .32 G. 3 0. 56, 320 CHAKACTEKS OF CLERKS, ETC. ceeding, as aforesaid, shall be quashed for want of form, or removed by certiorari into any other court." Or Engagements foe the Fidelity of Clerks and Servants. 22. Such engagements are usually entered into by bond, which precludes the necessity of a consideration. These cases have been already sufficiently considered in a preceding chapter. But where there is a consideration, as there may be where the undertaking of one party, for the fidelity of a clerk or servant, is the consequence of his pre- ceding request to the other, to take him into his employ, and the inducement of the other so to take him ; there, the engagement might be by a memorandum in writing. 23. Sijch memorandum must contain all the requisites for any other memorandum of guaranty, namely : the parties, the consideration, the promise and the signature ; and would come within the same rules in every respect, as those before laid down upon the subject of guaranties. 24. A memorandum of this description would not come within the exception in the stamp act, which relates only to contracts respecting the sale of goods, and therefore would require an agreement stamp to give it validity. APPENDIX. No. I. PiLLAN and Rose versiis Van Mierop and Hopkins, 3 Bun; 1663. The case was briefly this : " One WMte, a merchant ia Ireland, desired to draw upon the plaintiffs, who were mer- chants at Rotterdam in Holland, for 800Z. payable to one Clifford, and proposed to give them credit upon a good house in London, for their reimbursement ; or to resort to any other mode of reimbursement." The plaintiffs, in answer, desired a confirmed credit upon a house of rank in London, as the condition of their accept- ing the bill. WJiite named the house of the defendants as this house of rank, and oflered credit upon them : where- upon the plaintiffs honored the draft, and paid the money, and then wrote to the defendants Van Mierop and Hopkins, merchants in Lotidon, (to whom White also wrote about the same time), desiring to know. " Whether they would accept such bills as they, the plaintiffs, should, in about a month's time, draw upon the said Van Mierop and Hopkins's house here in London, for 800/. upon the credit of White ; " and they, having received their assent, accordingly drew upon the defendants. In the interim White failed, before their draft came to hand, or was even drawn ; and the defendants gave notice of it to the plaintiffs, and forbade their drawing upon them, which they nevertheless did : and therefore the defendants refused to pay their bills. On the trial, a verdict was found for the defendants. On motion for a new trial, 41 322 APPENDIX. Pillan and another v. Van Mierop and another. The couusel for the defendants observed, that the plaintiffs had given credit to White, above a month before the defend- ants had agreed to accept their draft. Therefore the con- sideration was past and done before their promise was made, and they argued, and principally insisted, that for one man to undertake " to pay another man's debt," was a void under- taking, unless there was some consideration for such under- taking : and that a mere general jiromise, without benefit to the promiser or loss to the promisee, was a nudum pac- tum. And they cited, 1 Bulstr. 120. Thomer v. Field. Dyer, 272, pi. 31, Hunt v. Bate. 2 Vern. 224, 225. Cecil et alY. Earl of Salisbury. 1 Ro. Abr. 11, pi. 1, Letter 2. " Consideration executed." Yelv. 40. 41, and 2 Strange, 933, Hays v. WatTen, where a past consideration was held insufficient to raise an assumpsit. The couusel for the plaintiffs denied this to be a past con- sideration, and insisted that the liberty given to the plain- tiffs, " To draw upon a confirmed house in London," (which was prior to the undertaking by the defendants), was the consideration of the credit given by the plaintiffs to Winters drafts; and this was a good and sufficient consideration for the undertaking made by the defendants. It relates backto the original transaction. Lord Mansfield. The objection is, " That the letter whereby Van Mierop and Hopkins undertake to honor the plaintiff's bill, is nudum pactum." The other side deny it. This is the only question, here. After two arguments, two points seem to have been taken by the judges : first, whether there appeared any considera- tion for the defendant's undertaking. Secondly, whether, as the promise was in writing, and in a mercantile transaction, it could be nudum pactum. The latter of these is the only one to be here considered. In the course of the second argument. Lord Mansfield asked, if any case could be found where the undertaking held to be p, nudum pactum was in writing, and in giving judg- ment, spoke upon this point in substance as follows : APPENDIX. 323 Pillan and another t. Van Mierop and another. This is a matter of great consequence to trade and com- merce, iu every light. Any kind of fraud in this transaction would have vacated the contract. But it seems to me clear that there was none. If there be no fraud, it is a mere question of law. The law of merchants and the law of the land are the same. A witness cannot be admitted to pi"ove the law of merchants. We must consider it as a point of law. A nudum pactum does not exist, iuthe usage and law of merchants. I take it that the ancient notion about the want of consid- eration, was for the sake of evidence only : for when it is reduced into writing, asiu covenant, specialities, bonds, &c., there was no objection to the want of consideration. And the statute of frauds proceeded upon the same principle. In commercial cases among merchants, the want of con- sideration is not an objection. He then commented on the facts of the case, and added, I think the point of law is with the plaintiffs. Mr. Justice Wilmot, upon the first argument, expressed himself as Jbllows : — I own that the want of consideration at first occurred to me. But I am now satisfied that the case has nothing to do with the cases of undertakings by one to pay the debt of another. In those cases it is settled, that where the consideration is past, the action will (lot lie ; and yet this seems a hard case. The mere promise to pay the debt of another, without any consideration at all, is nudum pactum : but the least spark of a consideration will be suffi- cient. It seems almost implied that there must be some consideration, but if there be none at all, it is nudum pac- tum. The statute must mean such a special.promise as would have supported an action. After the second argument he delivered himself as fol- lows : The question is, " Whether this action can be supported upon the breach of this agreement ?" I can find none of those cases that go upon its being nudum pactum, that are in writing: they are all upon parol. 324 APPENDIX. Pillan and another v. Van Mierop and another. I have traced this matter of the nudum pactum: and it is very curious. He then explained the principle of an agreement being looked upon as a nudum pactum, and how the notion of a, nu- dum pactum first came into our law. He said it was echoed from the civil law: — "-Eb nudo pacto non oritur actio." Vinnius (a) gives the reason. If by stipulation, (and a for- tiori, if by writing), it was good without consideration. There was no radical defect in the contract for want of considera- tion. But it was made requisite, in order to put people up- on attention and reflections, and to prevent obscurity and uncertainty : and in that view, either writing or certain formalities were required. (6) Therefore it was intended as a guard against rash inconsid- erate declarations ; but if au undertaking was entered into upon deliberation and reflection, it had activity, and such promiseswere binding. Both Grotiu.s(c) andPufiendorff(d), hold them obligatory by the law of nations. They are morally good, and only require ascertainment. Therefore there is np reason to extend the principle or carry it further. There would have been no doubt upon the present case, according to the Eoman law, because here is both stip- ulation (in the express Roman form) and writing. Bracton (who wrote temp. Hen. IH) is the first of our lawyers that mentioned this. His writings interweave a great many things out of the Roman law. In his third book(e) he distinguishes between naked and clothed contracts. He says that " Obligatio est mater actionis," and that it may arise "ex contractu, multis modis ; sicut ex conventione, <&c., sicut sitnt pacta, conventa, quae nudat sunt, aliquando, ali- quando vestita," <&c„ dec. Our own lawyers have adopted exactly the same idea as the Roman law. Plowden, 308 b. in the case of Sheryngton and Pledal v. Strotton and others (as) Lib. 3 tit, De Oyiigationilms, 4to. edition, 595. (6) Idem, on Justinian, 4to. edit. 614. (c) Grot. lib. ii, c. 11, De Promissis. (d) Puffend. lib. iii, o. 5. (e) Cap, 1, De Actiqnikua. APPENDIX. 325 Pillan and another v. Van Mierop and another. mentions it : and no one contradicted it He lays down the distinction between contracts or agreements in words (wiiich are more base), and contracts or agreements in writing (which are more high), and puts the distinction upon the want of deliberation in the former case, and the full exercise of it in the latter. His words are the marrow of what the Roman lawyers had said. " Words pass from men lightly," but where the agreement is made by deed, there is more stay, ifec, &c. For, first, there is, -ton, (guaranteed by John Lamb), " Bought of John Lyon, " To Cotton, c6c." And were always sent by the plaintiff to the defendant, and either delivered to him personally, or left at his dwelling house. The cottons were sold on a credit of two months, and two months, and were due, in cash, in four months. The defendant and Anderton were together at the plain- tiff's warehouse, at the time when Anderton paid for the par- cel of goods bought on the third of June ; and, during the time that the transactions above mentioned continued, Ander- ton was in the habit of sending goods, manufactured from the cottons, to the defendant, to be sold on commission. (1) An error had arisen as to these counts, from an alteration in the deoln- ration, which, it was apprehended, might have been taken advantage of in arrest of judgment, had a general verdict been taken. APPENDIX. 339 Lyon V. Lainh. Ill the beginning of November following, Anderton ordered a quantity of cotton from the plaintiff, the invoice of which was made out in the form mentioned above, and sent to the defendant, as usual ; but was by him returned to the plain- tiff, with a message, saying that Anderton had discontinued sending his goods to him. The balance at this time due to the plaintiff, for goods previously sold in the manner above described, was the sum of 164Z. I65. .• and the defendant told the plaintiff he would see AndeHon^ and get the accounts settled ; and he after- ward gave to the plaintiff the following note in writing. " Mr. John Lyon, — Sir : — You will herewith receive back your invoice of nine bags, left on Wednesday, as Mr. Ander- ton does not now send me bis goods to sell ; I guarantee all he has bought from you before Tuesday last, but will guar- antee no further." (Dated and signed.) The question for the opinion of the court is, whether the plaintiff is entitled to recover. If he is, the verdict entered for the plaintiff is to stand. If not, a verdict is to be entered for the defendant. John Richardson for the defendant, Walt&r Wm. Fell, - - - - for the plaintiff. Fell for the plaintiff. Two objections are taken to the plaintiff's recovering : — 1st. The memorandum having been given after the close of the transaction, was upon a past consideration ; and as no previous request appears, it is nudum pactum. 2d. Supposing there was a good consideration, yet that does not sufficiently appear on the face of the memorandum. In answer to the first objection, it may be observed, 1st, that as the memorandum refers to the former sales of goods, the invoices of which, in writing, are proved to have been delivered by the plaintiff to the defendant, at the time of the sale of each parcel to Anderton, and by him received without 340 APPENBIX. Lyon Y. Lamb. bbjection, Such invoices may be considered as incorporated with, and making part of, such memoradum ; and the mem- orandum referring back, by implication, to the invoices, may consequently be considered as having been given at the sale of the first parcel of goods, and continued till its revocation at the time of its actual signature. Thus, in the case oi Saunderson V. Jackson, (a) an after- written letter from the vendor on the subject of a contract of sale, was held to connect with the bill of parcels delivered at the time of the order given, (on which the vendor's name was printed and the terms of the contract specified), so as to be a suflScient memorandum. And the au- thority of this case is recognized in Chum/pion and Plumer. (5) But if this must be considered as a promise upon a past consideration, it may then be contended — 1st. That being a promise to guarantee in terms, it can- not be nudum pactum. 2d. That under the circumstances of this case it is not so. Ist. A guarantee is not a mere undertaking to pay the debt of another, (which without consideration, would undoubt- edly be void,) but it is an undertaking to pay, under certain circumstances, what another person is, or may be, liable to j and implies a doubt on the part of the creditor requiring the guaranty, of the sufficiency of such person ; and a desire on the part of the guarantor to remove such doubts, and create a confidence in the breast of the creditor, by adding his security to that of such other person. A guaranty can only be required, or given in one of two cases. Where credit is wanting for new engagements, or time to fiulfil past ones. And the guarantor must be considered by his very act as requesting one of those things. The very engagement is evidence of it. That either of these afibrds a good consideration is clear. If the guaranty be given before credit, it induces credit W2B.&P.238. (J)IK.E. APPENDIX. 341 Lyon V. Lamb. • and cousequent loss to the creditor, if not complied with. If afier, it induces security, and thereby puts the credi- tor off his guard, for he is not under the necessity of taking measures of caution or legal remedy against the debtor ; but if his debt be not paid in due course, his remedy is im- mediate against the guarantor.* Therefore a guaranty, not complied with, must of neces- sity work a detriment to the person to whom it is given, through the default of the person giving it ; and detriment to the plaintiff is equally a good consideration as benefit to the defendant. {Forth and Stanton, 2. Saunders by Wil- liams, p. 211, note 2.) The use of the term guaranty, with the explanation above given, distinguishes this case from the mere " promise to pay the debt of another without consideration at all," upon which Mr. J. Wilmoi's dictum in Pillanand Mierop (a) is founded (though he there also admits the " least spark" of considera- tion is sufficient), or the still more naked promise to pay in Wain and Walters. But secondly. It is clear that under the circumstances of this case there was a sufficient consideration. What are the facts. The defendant was the original cause of Anderton^s deal- ings with the plaintiff, he had an interest in them, and de- rived a benefit from them, to the amount of his commission. Such interest and benefit were the causes moving defend- ant to guarantee. This is clear from the wording of the memorandum. A direct request to furnish the first parcel is stated in the case. A promise to guarantee it is proved from the invoice, and from absolute payment. And the same request and promise as to all the other par- cels, is clearly to be inferred from the whole course of dealing. •See what Lord Eldon says in the case of Wright v. Simpson, p. 186. (o) Vide Supra, p. 5. 342 APPENDIX. Lyon V. Lamb. For the defendant was regularly informed, by the invoices, of all the transactions. He personally interfered in them. He was present with Anderton at the plaintiffs, when the parcel of goods bought on the third of June was paid for : which must have been after several of the invoices of other goods, made out in the same way as the first, had been sent to him. He must then have known that the plaintiff acted under his implied guaranty. To this he acceded by accepting the invoices while his interest continued. It is clear that he himself considered and knew that the plamtiff considered his accepting the invoices as an acqui- escenoe in the guaranty demanded by them, from his return- insr the one sent after his interest ceased : and at the same time giving that cessation of interest as his reason for return- ing it, and using the expression that he " would guarantee no longer." The defendant, therefore, though not legally bound, for want of having complied with the requisites of the statute (a), was morally liable to guarantee, and a moral liability is a good consideration for an express promise. This is not the case of a promise upon an illegal or immoral consideration, which being absolutely void, in initio, can receive no subsequent confirmation, but resembles more the cases of a debt debarred by infancy, bankruptcy, or the stat- ute of limitations,* the liability to which may be revived by a subsequent legal promise. And from these cases the pre- sent is hardly distinguishable. Also in Pillan and another v. Mierop. (b) Wilmot, J. speaking of promises upon a past consideration, mentions two cased decided upon similar prin- ciples in the following terms. (a) 29 C. 2, c. 3, s. 4. (6) 3 Bvirr, 1672, at top. *Lord Mansfield, in the case of Sawkes and Saunders, Cowp. 289, classes with these three eases, that of a " promise to perform a trust void for want of writing by the statute of fratids." See what is said by Lord Mansfi,eld, at p. 290. APPENDIX. 343 Lyon T. Lamb. " In another instance, the strictness has been relaxed, as for instance burying a son or curing a son. The considera- tions were both past, and yet holden good. It has been melting down into common sense of later times/'f Upon general principles of law, then, there seems in this case a good consideration. Now is there anything in the statute, or the, cases decided upon it, which requires the memorandum to be made either at the time of the agreement entered into, or at or before the debt incurred ? Certainly not. The words of the stat- ute are as follows : " No action shall be brought whereby to charge the defend- ant upon any special promise to answer for the debt, de- fault, or miscarriage of another person, unless the agreement upon which such action is brought, or some note or memo- randum thereof shall be in writing, and signed by the party to be charged, or some other person by him thereunto law- fully authorized.'' (a) There are no words here which require the memorandum to be made either at the time of the agreement entered into, or at or before the debt incurred, and it seems quite sufficient (a) 29 C. 2. 0. 3. s. 4. tTo these cases might have beeu added that of FrankVyn v. Bradwell, Hut- ton, 84. Franldyn, a woman-servant, brought an action upon the case, upon a promise against John Bradwell. And count, that whereas she had served the defendant and his wife, and done to them loyal service, the defendant, after the death of his wife, in consideration of the service which the plaintiff had done, to the defendant and his wife, promised to pay her 13«. id. upon request, and alleged request and non-payment, and after verdict for the plaintiff it was moved in arrest of judgment upon the book of 13 EKz. Dye:r, that this is no sufficient consideration, because it is not alleged that the plaintiff, at the re- quest of the defendant, had served him. Also, it was not sufficient, because it was done after the service performed, and it was answered, that it was a good consideration, and that the service was to the benefit of the defendants, and therefore in consideration that the plaintiff had married the daughter of the defendant, he promised to pay 20Zi it is a good consideration, and so in consideration (;hat you have been my surety to such a man for such a debt, I promise to save you harmless. And, in consideration that the plaintiff was bail for the defendant, he promised to give him a horse, that is good. And in consideration that /. S. being a carpenter, had well bmlt my house, I promise to give him bl. And judgment for the plaintiff. 344 APPENDIX. Lyon V. Lamb. if it be made at any time before " any person is charged upon any promise concerning it." Nay ! the very term dd)t implies that the engagements between the original debtor and creditor have been previously entered into. With this construction the cases coincide. In the cases of Matson v. Wharaniji^a) and Jones v. Cooper, (b) it is laid down arguendo, and admitted, that a promise made by a third person, after the supply of goods, is binding ; and it was contended that such promise only was within the statute ; because a promise made before, was an original undertaking, and need not be in writing. Buller, J. in the latter case coincided in this reasoning, but, upon the authority of de- cided cases, admitted that a prior promise was within the statute, but never seemed to doubt for a moment the valid- ity of an after-made promise. Therefore, upon general principles of law, upon the words of statute, and the cases decided upon it, it seems that the consideration for the defendant's undertaking was not insuf- ficient, on the ground of the memorandum in writing hav- ' ing been given after the close of the transaction between the original debtor and creditor. The second objection is founded upon the authority of Wain and another, v. Warlters. (c) Before that case, if the promise were in writing it was sufficient, and parol evidence might be given of the consid- eration. That case has, however, decided, that not the promise but the agreement, or a memorandum thereof, which must com- prehend the consideration of the promise, must be in writ- ing. Without at all questioning the authority of that deci- sion, it is sufficient in this case to presume, as it may be pre- sumed, from the manner in which the court, (especially Lawrence, J., and Le Blanc, J.) assented to the decision, that no court will carry the principle further. This presumption is strengthened by what fell from Lord (o) Q. T. E. 80. (J) Cowp. 227. (c) 5 East. 10. APPENDIX. 345 Lyon V. Lamb. Ellenborough, in the case of Stapp and LiU, N. P. Guild- hall, H. T. 1808. It was a question upou a guaranty, and the attorney-general took an objection founded upon Wain and WarKei's. The question was not exactly in point with the present case, but so far, that it attempted to carry the principle of Wain and Warlters somewhat further than the case itself. Lord Ellenborough, Ch. J. in overruling the objection, used the following expression : " That is a very nice case of Wain and Warlters,^^ clearly intimating his opinion that the principles upon which that case was decided ought not to be extended. (a) Now, between the case of Wain and Warlters, and the present, there is a clear and manifest distinction. That is a case of mere naked promise, unmixed with con- sideration. The words of the memorandum were, "Messrs. Wain & Co.,1 will engage to pay you at half past four this day 56^. and expenses on bill that amount on Hall.'^ Here there is no spark of consideration. The words in the present case are, " Mr. John Lyon, " Sir, " You will herewith receive back your invoice of nine bags left on Wednesday. As Mr. Anderton does not now send me his goods to sell, I will guarantee all that he has bought before Tuesday last, but I will guarantee no further." Is there then here a sufficient consideration ? Must the whole of the agreement be formally set out ? Does the act require it ? It is sufficient if a memorandum or note of the agreement be in writing. What do we understand by a memorandum ? It is a brief abstract of any matter so referring to the (a) This case has since been printed, and is referred to in the above work, p. 38. The expression here attributed to JjotHl Mleriborough, is from the au- thor's own note of the case taken at the trial. 44 346 APPENDIX. Lyon V. Lamb. principal points, that, upon subsequent reference, it may bring back the whole of that matter to the memory. A memorandum requires explanation. Not to add anything, but to explain, and explain only the points referred to in the memorandum, is what the plain- tiff requires. This is done by the evidence at the trial, as stated in the case. Upon any other acceptation of the term "memorandum or note," in the act, it must require as much certainty as a declaration or a deed, which would not be to correct the abuse of such undertakings, under the purview of the stat- ute ; but to render them next to impossible. With such explanation, then, of the points referred to in the memorandum, as is contained in the facts stated in the case, there is (as contended in the answer to the last objec- tion) a sufficient consideration. But even without such explanation, what is the natural construction of the memorandum itself, and the plain infer- ence to be drawn from it ? Ceitainly, that the defendant knew of goods having been furnished by the plaintiff to Anderfon, from which he had derived a benefit, of which he had received the invoices, and to which he refers. And upon looking at these invoices we find it there expressed, that the plaintiff had sold each parcel upon the defendant's guaranty : he knew then he had been considered, by the plaintiff, and had considered himself liable to guaranty generally ; but he then confined his guar- anty to a particular time. A precedent request moving from the defendant (if neces- sary where there is a benefit to the defendant, as in this case,) is here a necessary implication. Else, why confine his liability to a particular day, but that he knew himself liable generally ? Why consider himself liable at all ; but that he knew the goods had been furnished, at his instance and suggestion, and under the faith of his verbal guaranty ? APPENDIX. 3^7 Lyon T. Lanib. And his reference to the invoice, and admission of the guaranty there demanded, is a direct admission of the same facts. Upon the second objection then, whether the guaranty is to be taken, with or without explanation, there is a sufficient consideration apparent ; and therefore upon neither of the grounds stated, is there any objection to the plaintiff's being entitled to recover. Richardson for the defendant. The guaranty is insufficient, on the two grounds stated. As to the first objection, it is clear that an after-made promise is not good, except upon a precedent request. The old law seems to have been, that an after-made prom- ise, even upon a precedent request, was insufficient, unless the benefit continued ; and the cases of Jeremy v. Gooch- man, Barker v. Halifax, and Docket v. Voyel, go to estab- lish this point. This strictness, however, has been relaxed, and it is now held, that though the consideration may be past, yet the after-made promise refers back to the precedent request, and couples with it so as to make the consideration sufficient. The law upon this subject is clearly laid down, and the cases are collected in Mr. Sergeant William's notes to the cases of I'orth and Stanton {a), and Osborne and Rogers {b). But admitting that a subsequent promise upon a prior request is binding, yet no request was proved in this case. A request must mean a request prior to the sale. In the first transaction between Lyon, Lamb and Anderfon, there certainly was such a request, but there is no evidence of any repetition or continuation of it in the subsequent transactions. With regard to the invoices that have been relied upon, as proving such request, they were not sent to Lamb till after the sale of each parcel of goods respectively (o) Saunders' Rep. 211, note 2. (6) Ibid. 264, note 1. 348 APPENDIX. Lyon T. Lamh. to Anderton: therefore they cannot be considered as afford- ing any evidence of it. As to the argument that has been drawn from the interest the defendant had in the transaction between the plaintiff and Anderton, from the advantage he was to make by selling the manufactured goods upon commission, it does not appear that there was any contract between the parties, that Ander- ton was to send his goods to be sold by the defendant. It was merely voluntary on the part of Anderton : he might have discontinued so to do at his pleasure ; and in point of fact, very few goods were so sent. At any rate there is not a title of evidence that the plaintiff sent the cottons to Anderton for that purpose, and therefore the defendant's implied request does not derive strength from this supposed interest. But even if there had been such a request proved, the plaintiff would not be entitled to recover ; because no such consideration appears on the face of the guaranty. It is decided in Wain and Warlters, according to the wording of the clause in the statute, that it is the agreement, and not the promise only, which must be reduced into writing. An agreement is distinct from a promise. It is explained to be aggregatio mentium, viz : " When two or more minds are united in a thing done, or to be done." (Com. Dig. Agreement, A. I.) "A mutual assent to do a thing," (ibid.) and must specify, not only the engagement on the one part, but the consideration for it on the other. Now the consideration here, if any, must have arisen from a prior request on the part of the defendant, to furnish the cottons in question. And the simple question is, whether such request can be implied from the wording of the guaranty. The consideration, if any, to be inferred from the mem- orandum, for the promise therein made by the defendant, is his gratitude for the past service rendered to him, by Ander- ton, in sending him goods to sell. It is equivalent to say- APPENDIX. 349 Lyon T. Lamb. ing, in consideration that Anderton heretofore sent me his manufactured goods to sell, I promise to pay for the raw material which he has heretofore bought ; but as he has now ceased to send me his goods to sell, I will pay for his materials no longer. This does not imply that the raw materials had bepn fur- nished by the plaintiff, at the defendant's request ; but only that the defendant having, in the event, derived a benefit from the use to which Anderton thought fit to apply the raw cottons which he had bought, was induced by a sense of obligation, or of justice, to befriend Anderton so long as Anderton had befriended him. It has been attempted to draw an argument from the use of the term guaranty, as necessarily implying a request for credit or time. Guaranty is a loose mercantile term : there is no particu- lar legal inference to be di'awn from it ; or if there were it could not apply in the present instance ; because, if sup- posed to imply a request for credit, as contended in this case, it must necessarily be given before the goods furnished. A guaranty may be given, as is usual, after credit given to another party; but in such case the consideration is that of forbearance, and there is no pretence for saying that any consideration of forbearance can be implied in this case, or if there could, it is out of the question, because no such consideration is stated in the declaration. Therefore, inasmuch as it does not appear upon the face of this memorandum, even when coupled with the invoices, that the promise, which was a subsequent one, was made upon any precedent request, no sufficient consideration appears on the face of it ; and the plaintiff is not entitled to recover. Fell, in reply. It is absurd to suppose that such an engagement could have been entered into as a mere voluntary act of gene- rosity. There must have been some consideration, and that 350 APPENDIX. Lyon T. Lanib. consideration must be sought in the wording of the memor- andum, coupled with the facts under which it was given. Then upon the first objection, without controverting any of the general principles of law laid down on the other side, it is sufficient to reply, that there is, in this case, sufficient evidence of a prior request moving from the defendant. And considering the fact of the first transaction and invoice, of all the other invoices being in the same form, and delivered in the same manner, — of the defendant's being present with Anderton at the plaintiff's, and that after one at least of such subsequent invoices had been received by him, and not oVjjecting to the terms of such invoice, he must be considered as having continued his request during all the subsequent transactions. And, as to the question of interest, which has been objected to as insufficient to prove a consideration in point of benefit to defendant, it may be observed, that although no proof of interest has come out, so as to sustain that count in the declaration, yet there is quite sufficient to show that the defendant had a motive in becoming guaranty for Anderton, in his purchase of cottons ; inasmuch as he had not only an interest in respect of his commission upon the goods manufactured from them, but security for all the payments he might be obliged to make, in consequence of his guaranty, in his possession of such goods or their proceeds. This therefore strengthens the implication of a previous request on his part. And upon the second objection, also agreeing in the deci- sion in Wain and Warlters, and considering only the memo- randum itself, and the invoices, a previous request must necessarily be implied. The court must judge of the constructions put upon the memorandum on each side ; but in answer to what was said upon the use of the term guaranty, and that in order to imply a request for credit, it must have been given prior to the credit, it is sufficient to reply that the invoices, the cir- cumstance itself of giving the guaranty, and the terms of APPENDIX. 351 Lyon V. Lamb. it, clearly show that the defendant was conscious there then existed a moral liability, which could only have existed by means of a previous request ; and therefore such a request is a necessary inference. And upon general principles there seems no reason for construing guaranties so strictly, but quite the reverse. In the present state of the commercial world, when credit is so universally extended, they are not only very general, but highly advantageous. If the strict and technical con- struction of pleading is to interpret them, in the place of common understanding, and common sense ; and if an agreement as positive and intelligible as the present, is to be set aside, as not stating, with the accuracy of a declara- tion, the consideration inducing to it ; the consequence will be, that not only the far greater part of the engagements of this nature, already entered into, will be invalidated, but they will be rendered almost impossible in future, as no person will be willing to accept such an engagement, how- ever clear and intelligible to his own comprehension, lest the more accurate discrimination of a court of law should afterward consider it as invalid. — Cur. adv. vult. On the last day of the term, the Chief Baron delivered the judgment of the court. After reading the 6th count (a), (to which he considered the evidence as principally applying), and the facts, as stated in the case, he proceeded to observe, in substance, as fol- lows : — The objection to the plaintiff's recovering in this case is, that the memorandum and facts do not contain a sufficient consideration ; inasmuch, as though it is clear that the first parcel of goods was sold to Anderton., at the request of the defendant, yet there is no evidence of any continued request, after such first sale. Certainly no such subsequent request is stated in the case. But to this it has been answered that, coupling the in- (a) The 5tli count abore stated, omitting what is m Italics. 352 APPENDIX. Lyon V. Lanib. voices with the memorandum, and adding the fact that all the invoices were made out and delivered in the same man- ner as the first, the continuation of the previous request to all the subsequent transactions must necessarily be implied. Such implication however, does not seem necessarily to follow. In the case of Wain and Warlters, the distinction was very properly taken between promise and agreement ; and it is not the promise, but the agreement or memorandum, or note thereof, which the statute requires to be in writing. A promise may be voluntary,* but an agreement, to be binding, must contain a mutual engagement, upon an ad- equate consideration, and to prevent frauds and perjuries within the meaning and scope of the statute, such engage- ment and consideration should be in writing ; otherwise a door is opened to all the evils which the statute was meant to remedy. And as the memorandum in this case does not contain, sufficiently, the agreement, we feel obliged to decide against the plaintiff, however reluctantly, because the honesty of the case seems with him ; and the probability of there having been a previous request, inducing to the other trans- actions, as well as the first, is strongly in his favor. — Postea to the defendant. The counsel for the plaintiflF, on the day the case was argued, had suggested to the court, that from his own notes, and those of Littledale, who was with him at the trial, and according to their distinct recollection, it appeared that there was evidence of a subsequent request from the defend- ant to the plaintiff, to furnish other goods to Andertan, after the first parcel ; but as that fact did not appear on Mr Baron Wood^s notes, the plaintiff's counsel had not been able to introduce it into the case ; he therefore requested, that if the court should be of opinion that the plaintiff would have been entitled to recover, if that fact had appeared in^ statement, *See2)o«< p. 344, previous edition, note (2.) APPENTUX. 353 Lyon V. Lamb. the plaintiff might be permitted to be nonsuited, instead of having a verdict entered against him. After the judgment of the court given this day, he again made the same suggestion ; but the court seemed to be of opinion, that even if the fact were as stated, it would be of no service to the plaintiff, unless it could be collected from the memorandum coupled with the invoices, the only written documents ; which they were of opinion it could not. 45 354 APPENDIX. IV. (Chap. III. Pl. 1, 3, 9, p. 46, 48). Observations upon the Decisions in the Cases of Wain and ANOTHER V. Waklteks, and Lyon v. Lamb. As the case of Lyon v. Lamb was decided, avowedly, upon the authority of Wain v. Warlters, and on the principle there laid down, it will be sufficient to consider the latter case only. The decision in that case turns entirely upon the meaning, real or supposed, of the word agreement ; and cannot but be admitted to be of a very technical nature, and to be, in its effects, calculated to produce material inconvenience in commercial transactions. Now, although consideration of this nature cannot warrant a deviation from the proper grounds of legal decision, they render it very important that those grounds should be accurately examined, in order to ascertain whether they necessarily require the determinations founded upon them. An examination of the principles of this case may be entered upon with the less apology, as Lawrence, J. and Le Blanc, J. appear by the report, to have given a hesitat- ing assent to the decision ; and as serious doubts have been thrown upon its propriety by the Lord Chancellor, in the cases ex parte Minet, (14 Ves. jun. 189), and ex parte Oar- dom, (15 Ves. jun. 286). Both these cases arose upon ap- plications to prove a debt against a bankrupt's estate, upon engagements of a similar nature to that in Wain v. Warlters ; and the decisions were against the proof, upon the ground that the debt was contingent at the time of the bankruptcy. But, in the first of these cases, the Lord Chancellor said, " There is a variety of cases directly contradicting the case in the court of king's bench ; which is a most important case with reference to the consequences. For the undertaking of one man for the debt of another, does not require a considera- tion moving between them." In the .latter case he paid, APPENDIX. 355 Observations upon Wain and Warlters, i&c. " Until the case of Wain v. Warlters was cited, some time ago, I had alwaj-s taken the law to be clear, that if a man agreed (a) iu writing to pay the debt of another, it was not necessary the consideration should appear upon the face of the wi-iting. That case has determined two points : first, that a consideration is necessary ; secondly, that it must ap- pear upon the writing." It will 1)6 desirable, before entering into any discussion upon the principal point, to relieve the subject from any un- certainty upon the question of a consideration for any engiigement, is quite independent of the statute of frauds : and is a distinct princple of common law, in all cases where the engagement is not by deed. But it is absolutely im- material, that that consideration should have a direct relation to the party making the promise ; it is sufficient that it should affect the interest of the person to whom it is made ; and the act of selling or lending to A. is a perfectly adequate consideration, for the previous or contemporary promise of ^. The case oiEgerton v. Matthews (6 East, 307), wtis decided subsequently to the case of Wain and Warlters. That case arose upon the 17th section of the statute of frauds, which enacts, that no contract for the sale of goods above 10^. iu value shall be good, except (inter alia), " some note or mem- orandum in writing of the said bargain, be made and signed by the parties to be charged or their agents, &c. ;" and there it was held, that a note importing, " We agree to give Mr. E. I'dd. per pound, for 30 bales of cotton,'' was a sufficient memorandum of thebargain, although it did not import that Mr. E. had agreed to make any sale ; so that the whole effect of Wain and Warlters turns upon the technical import of the word agreement, as distinguished from the word bargain ; and the case is entirely freed from any question as to the application of the general rule of common law, that a written agreement cannot be explained by parol. (a) It is observable here, that the Lord Chancellor uses the term agreed, as equivalent to promised, and excluding a consideration. 356 APPENDIX. . Observations upon Wain and Warlters, <£c. Whatever may have been the opmions of different judges at different times upon the utility or inconvenience of this statute, and their consequent dispositions to extend or limit its provisions, it must be construed upon the same principles which would govern the construction of any other statute ; and if the word affreement in the one clause has really" a different object fi'om the word bargain in the other, the dif- ference must bo preserved,, however difficult it may be to discover the motive of it. The cause iu question comprises five objects : 1. a promise by an Executor, to answer de bonis propriis ; 2. a, promise to answer for the debt, &c., of another ; 3. an agreement, in consideration of marriage ; 4. a contract for the sale of lands ; 5. an affreement not to be performed within a year ; and that which is required or provided by the statute, ap- plies equally to all these, namely, " that the agreement, or some note, &,c., shall be in writing, &c.;" and it is the obser- vation of Mr. Justice Lawrence, that the change of the term, from promise to agreement, shows that something more was meant by the word agreement, than by the preceding word promise. But the latter part of the clause is intended to in- clude all the objects iu the former ; and to the last three the word promise would be inadequate, or at least would be less accurately applied than the term agreement, which, if un- derstood according to one of its common and popular senses, as equivalent to engagement and undertaking, will refer to all the subjects before enumerated. Mr. Justice Orosse, speaking of the word agreement, says that "It is that which is to show what each party is to do or perform, and by which both parties are to be bound, and this is required to be in writing." But surely it is not meant to be understood, that the party to whom the promise is to be made, shall in all cases, by executory agree- ment, have been under any actual obligation ; and that a complete, perfect, executed act, in the first instance, such as the loan of a sum of money, shall not be a legal inducement for such a promise. APPENDIX. 357 Ohservations upon Wain and Warlters, Jc> The opinion of Lord JEllenborurffh seems to proceed upon a supposed technical sense of the word agreement, which it will be necessary particularly to examine. It must be recollected that this word is not originally of a technical character or qualitj% such as the word deforcement, feoffment, or attornment, but one of general and popular use ; and that, according to such use, there is no impropriety in considering it as having, among other significations, that of a mere undertaking, promise, or engagement. Johnson enumerates many different applications of the term ; and al- though this is not one of tbem, it certainly is one which is perfectly familiar in common parlance. In this sense is the term used by Lord Eldon, in the case ex parte Gardom, as above noticed. Nay, it is so used in cases where a more strict application of words is required ; as, for instance, the words covenant, promise and ixgree, are constiintly used in a deed, as denoting the acts engaged to be done by the party covenanting; his covenant, his promise, his agreement, which are all expressive of his engagement, his underlahing. Now, as to the actual derivation of the word agreement, independent of the supposed authority of Plowden or Lord ■Coke. First, according to the general analogy of language, it must be referred to the verb agree, rather than the latter be derived from the former ; and it is obviously the common process of the English language, as well as the French and Latin, to add the termiuation of ment ovmentum, ent or entum to a verb or adjective, in order to denote the existence of the ens, action, or quality to which they apply (a.) The words omofmentum, instrumentum, monumentum, and atramentum, from the Latin ; baisement, applaudtssenient, pavement, and Tnouvement, from the FrencJi ; and shipment, elopement, at- tornment and punishment, from the English, are instances, among innumerable others, of this principle of etymology; and they have been the rather selected, because it seems very (a) See this confirmed by the authorities of Spelman, Lambard and Bar- rington, cited below, p. 342, 358 APPENDIX, Observations upon Wain and Warlters, <&c. difficult, if not impossible, to apply to any of them the ter- mination ment, as bearing any reference to the mind or un- derstanding. The substantive agreement must therefore, be taken to be derived from the verb agree ; and is so consid- ered by Spelman, (see note, next page); as in the French, the substantive agrement is referred, by the dictionary of the Academy, to the verb agreer. Secondly, although, in many words, it is difficult to say whether they were immediately received into the English language from the Latin or the French; yet, according to the opinion of Johnson, the French originally supplied us; for we have few Latin words among the terms of domestic use which are not French, but many French which are very remote from Latin. And it seems impossible it should have been otherwise in the present instance, at least if the first position be allowed, namely, that the substantive is derived from- the verb ; for there is no word of authority in the Latin language from which the verb agree can be fairly and simply deduced, whereas its derivation from the French agreer is obvious, direct, and natural; and this is adopted as its etymology by Johnson, who is authorized therein by Spelman, Junius, and SMnner, which latter is usually con- sidered as great authority upon etymological subjects. Dur Cange also, in his Glossary, explains aggreamentum by agre- ment ; and both Du Gauge and Spelman treat the definition in Plowden, (which appears to be found also in Rastall and CoweT) with considerable ridicule. Again, the verb agreer i* referred by Johnson, Junius, Skinner, and the dictionary of the French Academy, to the radical gre, which is ex- plained by Johnson; as liking, ov good-will ; by Junius, as gratia, bene placitum ; by Skinner, as voluntas, consensus ; and by the dictionary of the Academy, as franche volante gu'on a de faire quelqiie chose. Spelman, indeed, derives agreer immediately from the Latin aggredior, but the others, APPENDIX. 359 Observations upon Wain and WarUers, Sc. deriving it from the French radix, grre, derive that from gratus, or gratia. (1) The word agreement, then, according to this etymology, may well be taken to express any mode of the simple assent of one mind, although, unquestionably, it may be equally applicable to a mutual assent of two or more minds. But the supposed derivation of agreement from aggregatio mentium, which has got into our law books, seems to have no better foundation than a quaintness and pedantry, which appear to have been extremely prevalent about the times of CoJce and Ploioden. Many of the derivations of the foi'mer of these writers appear to be extremely fanciful ; but there (1) To those who are not possessed of the books above cited, an extract of the original passages from which the above observations are taken may not be unacceptable. Spelman's GiossART. — •' Aggrbambnium. Vox forens ; quasi aggregatio mentium inqnit Cowellius juris oonsultos secutus ; sed lepide magis quam vere; nisi calceamentum, quasi calceatio, mentis, atramentum, quasi atratio mentis, et hujus modi. Certe mentum non est, hie, vooabulum, sed nominum substantivornm terminus, qui, vel rem, Vel materiem, vel instrumentum) que quidpiam subsistit, designat. " iSTam in vocabulis patronymiois, finales hss voces, tor, trix, tio, en.) men, entum, mentum, sigmficativse in se non sunt, sed differentiaium constitiltivEe. So. Tor, actorem denotat; trix actricem ; tio actioem ; en vel men modum rei i Entum Vel mentum, rei, ut dixi, materium vel instrumentum." Among other instances of this application of the terminations is the following : ' ' Sic, in verbo testari, testator, testatrix, testatio, testamen, similiter significant ; et testamentum, non testatio mentis, (ut Servio Sulpicio, et maximis aliis Jurisconsultis placnit), sed ipsum instrumentum, voluntatis eoniinens testi- monium. Sic, calceamentum est calceandi instrumentum, atramentum atii ttateries." Skinner's Ettmologicum (1671).—" Agree, Oonsentire, Convedu-e, Quad- rare. Fr. Agi-eer. Hoc a Fr. Gre. Voluntas, Oonsensusi" " Omnia a Lat. ad gratum, q. d. adgratare, i. e. rem gratam alicui praestare, gratum et juoun- (Lthh cssg." JuNitrs's Ettmologioum (1743.)— " Agree. Consentii-e, Concinere. G. Agreer. Gre est Gratia, bene placitum. Glossarium, by Dv , Cange.— " Agreamentitm. Consensus, Agrement. Eidicule definitur apud RastaU, et Legulios Angl. Aggregatio mentium in re aUqua facta, vel facienda." DicT. OF French Academy.—" Agreer, Agreement, Agreeable, Agreb- ablement, t. Gre. " Gree.— Pranche volante qu'on a de fairequelque chose." Johnson. Agree.— Agreer, French, from Gre. Liking or good-will. Gratia et Gratus-. Latiui 360 APPENDIX- Oiservaiions upon Wain and Warlters, £c. is one which has so much analogy to the present subject, that it will not be irrelevant to cite it, accompanied by the com- mentary of his learned Editor, Mr. Hargrave. Lord Ooke^s derivation (Co. Litt. 110, a.) is as follows : "It is called Parliament because every member of that court should sin- cerely and distinctly parler la mmt for the general good of the Commonwealth," upon which Mr. Hargrave thus ob- serves : "The latter part of this etymology is justly ex- ploded ; but it is some excuse fw Lord Cohe that it did not first come from him ; it being to be found in preceding Au- thors of eminence. See Lamb. Archelon in the Chapter of Fatliament, and I. Whitel. on Parliament, 174. A learned writer of the present time suggests that perhaps 'parliament may be a compound of parley and ment, two Celtic words, the former answering to parler in French, and the latter sig- nifying abundance ; and both together importing the same as great talk amonff the Indians of North America. Bar- ringt. Observ. on Ant. Stat, second Ed. 56. But though we do not doubt that there are two such words jn the Celtic language, we are scarcely more satisfied with this deriva- tion, than with that expressed by Lord Ooke. The opinion adopted by Mr. Lambard seems by far the most probable ; and this is, thatparliamenl is not a compound, but simply derived from the Erench parler, with the addition of meni in the termination ; which mode of converting verbs into nouns, as well as into adverbs, is common in the French tongue. Lamb. Archeion in the Chap, of Parliament. A like practice prevailed in the formation of the Boman language ; and thence the true source of derivation for testamentum, and other similar Latin words; though an in- judicious desire to render them more significant and ex- pressive of the qualities of the subjects to which they are applied, than their true deduction would waiTant, gave birth to a forced and fanciful kind of etymology, like that now so properly rejected in the instance of the word parliament. This false taste, in respect of etymology, is of a very ancient date ; nor were Lord Ooke and his cotemporaries more APPENDIX. 361 Observations upon Wain and Warlters. Sc. chargeable with it, than some of the most admired and pure classical ^Titers of antiquity, not excepting even Cicero. See Menag. Jur. Civil. Amcen. cap. 39, particularly in his observations on the word testamentum, and Tayl. Elem. Civ. li. 7 . It seems to hav€ originated from not attending to the real office of etymology, and confounding it with the defini- tion of the subject, to which a word is applied ; two things quite distinct in their nature, though it frequently happens that they reflect light upon each other." The principal ground of the decision in Wain v. Warl- tkers, is the definition in Comyns as extracted from Plow- den, than which, Lord Ellenhorough observes, better author- ity cannot be Ijad. And his lordship also observes that Dyer, 336, may be cited to show, that the word agreement is not satisfied unless there be a consideration. It must certainly be admitted that the word agreement cannot be satisfied so as to produce a legal effect, unless there be a consideration ; but the same may be equally affirmed of a, promise ; and the principle is so clear, that no authority need be stated in support of it. (2) The question is not, whether the term agreement does not frequently refer to a mutual and reciprocal engagement, (2) It did not seem expedient to interrupt the course of the argument by a particular discussion upon the word promise, and its application ; but the ■following observations may not be irrelevant. A promise cannot be so called, unless previously requested, or subsequently assented to by another ; without one or other, it is a bare declaration or res- olution ; and with one or other of these, it becomes the mutual consent of two or more minds, &o. A promise may certainly be made without a sufficient legal consideration ; so may an agreement : and if the term promise had oc- emxed in the latter part of the clause, instead of the term agreement, it might equally well have been argued, that the term promise meant legal promise, to the validity of which a consideration was necessary ; and that such con- sideration ought to appear on the face of the memorandum. This, however, is excluded by the opinion of the Judges, who declare their decision to be founded on the difference between the terms promise and agreement ; and that, if the former had been used, they should not have judged the statement of the consideration in the memorandum to be necessary ; and it is excluded by the decision in Egerton and Matfliews, which is founded on the distinction between the words liargain and agreement. What that distinction may be, is a matter of doubt, and will be subsequently treated of. 46 362 APPENDIX. Olservations upon Wain and Warlters, Sc. for it is manifest that it does ; but whether, in its legal ap- plication, that signification is so exclusively fixed upon it by absolute and uncontrollable authority, as not to admit, in an act of parliament, of the latitude of signification which belongs to it in common parlance ; and what has been be- fore shown to be familiar, even in legal instruments. The authorities in Plowden and Dyei\ upon which this supposed necessity of construction is founded, arc as follows : The case in Plowden (fol. 1 to 20) was an information by the king's comptroller against Fogossa, for landing a quantity of woad, without having paid the subsidy, or agreed for it with the collector. The defendant pleaded that the vessel was laden with 4,500 quintals of woad, in Portugal ; that, in consequence of a storm, a considerable quantity had been thrown overboard ; that it was uncertain how much remained , and, therefore, the defendant requested the collector that he might make an entry of 2,000 quintals, which he believed to be about the real quantity ; and that he might take, as well the 2,000 quintals, as also the residue, if any, of the woad on shore ; declaring to the collector, that he would pay him the subsidy, as well for the 2,000 quintals, as for the excess, when the quantity should be as- certained, by weighing at the king's beam, to which the col- lector agreed. And thereupon, the defendant contracted and agreed with the collector at the rate of 12d. for every 20s. of the value of the woad, and gave surety for the payment. By reason of which grant, license, and agreement, he landed the woad, as he lawfully might. The attorney general re- plied (protesting the insufiiciency of the plea) by way of traverse, that the defendant had not agreed with the collector for the subsidy ; to which the defendant rejoined, that he had agreed in manner and form before alleged. Upon the trial of the issue, the collector and other witnesses proved the averments in the plea, and the attorney general demur- red to the evidence. The question turned Upon the statute 1 Edw. VI, c. 13, providing, " that if any merchandise should be landed, the APPENDIX. 3(53 Observations upon Wain and Warlters, £c. subsidy not being paid, or the collector agreed with for the same, it should be forfeited." The case was argued, very ably, by several counsel on each side ; but, was terminated by the warrant of the king to discharge the defendant from the information, the king declaring "that we be credibly informed, that the said A. Fogossa intended not to defraud us of our subsidy, but laid the same woad on land by the license and agreement of the customer of the port." There was no judicial opinion given in the case ; but the Reporter subjoins a note stating " that he was credibly informed, that all the Barons of the Exchequer, and Justices of England, except Hales, Puisne, Justice of the Common Pleas, and Montague, Chief Justice of the same Court, were, upon conference among them- selves, of opinion, that judgment should be given against the king ; but it was thought better that it should be done by warrant of privy seal, than by rigor of law." The objection against the defendant was, that the agr-ee- ment was not perfect, full, or complete ; but rather a com- munication ; as the collector could not compel the defendant to weigh the woad at the king's beam, and the king ought not to weigh it ; and so perhaps it would never be weighed, and the king would lose his subsidy. In the course of the arguments, different expositions were given of the word agreement, the principal of which appear in the following ex- tracts : — Per Gawdy for defendant, (fol. 6.) " The statute grants an agreement ; and here, although the gross sum is not certainly known, yet none can say but that there is a mutual assent of the collector and defendant, which is an agreement, and this agreement shall countervail a certain agreement." Attorney General, (fol. 7.) " The issue is, whether the defendant agreed or not, according to the statute which shall be intended a general agreement, viz. : an agreement certain." Atlcyns for the defejidant, (fol. 8.) " There are holden in our laws three sorts of agreement, and no more. The first sort of agreement is that which is executed in the beginning, as is mentioned in stat. 25 Ed. 364 APPENDIX. Observations upon Wain and Warlters, Sc. in, c 3. St. 4. de pounnis, which says, ' that the goods and things bought by forestallers, being thereof attainted, shall be forfeited to the king, if the buyer thereof have made gree with the seller' ; in which case this word {gree) which is otherwise called agreement, shall be intended an agreement executed, that is to say, paying for the things. The second manner of agreement is, where one does an act, and another agrees, and assents to it afterward. As if one commits a disseisin to my use, and afterward I agree to it, now I shall be said to be a disseisor ab initio, and such an agreement is an agreement after an act done. So if one ravish a woman, and afterward she assent to the ravisher, this assent is called an agreement : so that this agreement is an agreement after the act or thing done, which agreement is also executed." " The third sort of agreement is, when both parties at one time are agreed that such a thing shall be done at a time to come ; this agreement is executory, and yet, there, their minds agree at one time." "The statute 26 Hen. VIII. c 3, proves that there is such an agreement 5 for the statute says, that every person, &c., before their actual possession, &c. 'pay or compound, or agree to pay to the use of the king their first fruits,' &c., and this agreement is to be intended ex- ecutory." Brooh for the defendant, (fol. 14.) " Every gift, every grant, every feoffment, every confirmation, is an agree- ment ; for it is the will of the donor that the donee shall have the thing, and the donee is content to take it. And so there is a mutual assent of their minds, which mutual assent of minds is an agreement, and an agreement is only the mutual assent of minds touching anything, for there ought to be something upon which their minds may concur and conclude." Pollard for the defendant, (fol. 17.) "As to the definition of the word (agreement) it seems to me that aggreamentum is a word compounded of two words, viz. : x)i aggregatio axiA mentium,(a) so that agg7'eamentum est, ag- (0) As an authority for this, is cited, in the margin, the, case of R. v. O'Connor Terms de lay ad v. Agreement, which authority is also the argument of counsel (Nores,) and so stated to be in the marginal reference. APPEinjix. 365 Observations upon Wain and Warlters, &c. gregatio mentium in re aliqua facta vel faceinda. And so, by the coutractioQ of the two words, and the short pronun- ciation of them, they are made one word, viz. : aggreemen- tum, which is no other than a union, collection, copulation, and conjunction of two or more minds in anything done or to be done ; and then the statute which says, the collectw not agreed icith, is as much as to say, that if the minds of the collector and the party are not united, collected, coupled, and joined together, in and about the subsidy, that then the goods shall be forfeited, otherwise not." The argu- ments of the counsel for the crown, which have not been particularly noticed, do not contain any discussion as to the general import of the word agreement, and the passages above cited are evidently those cited in Comyns, and relied upon as the foundation of the definition and meaning of the term agreement, upon which, and the authority mentioned by Lord Ellenhwough of Z>yer, 336, b. the judgment in Wain and Warlthers is founded. But, from the whole of the case, it is evident, that agreement in the statute then under discussion, could not imply mutuality of obligation or consideration, but merely assent : and certainly the mere assent of the collector is all that is intended by the word agi-eement in the warrant of privy seal ; and agreement and license are used as indicative of the same. It is further observable upon this case, that in the argu- ment of one of the counsel {Atkim,) the term agreement is said to \ye the same with the term gree in the statute, 25 Ed. III. c. 3. st 4, consistently with the derivation and meaning above attempted to be given to it. The same counsel also says, of one of the three species of agreements, that assent is called agreement. Let us now consider the case in Dyer, (336) which, what- ever may be its authority and application, has this in com- mon with that in Plowden, that it consists merely in the argument of counsel. The case was an ejectment upon a settlement made by Sir Francis Calthorpe, before the statute of uses, by which he covenanted with Edmond Wyndham, 366 APPENDIX. Observations upon Wain and Warlters, <&c. that Edmond the son of Edward Oalthorpe, and nephew of Sir Francis (then nine years old), should marry Elizabeth E. Wyndharri's daughter, six years after. And he also cov- enanted, before the feast of Miohaelmas, to settle the yearly value of 20 marks to the use of himself and his wife for their lives, afterward to the use of Edward Calthorpe for his life; and after his decease, and carnal copulation had between Edmond and Elizabeth, to the use of Edmond and Elizabeth, and the issue of Edmond in special tail, and in default of such issue to the use of Edmond in tail general. And a fine and recovery were levied and sufiered, which were averred to be to the uses of the deed. The wife of Sir Francis died; Sir Francis married again, and had issue; there was no marriage or carnal copulation between Edmond and Elizabeth. The question was, whether the uses re- mained, or were determined. The case was argued at the bar, but not at the bench, and was settled by arbitration. The reporter says: "And for the argument of the case see these notes following." The only part of these notes which applies to the present discussion is the following : "A con- sideration is a cause or meritorious occasion requiring a mutual recompense in fact, or in law. Ocmtracts and bar- gains have a quid pro quo. Exchanges, annuity for counsel or service, real services, and tenures for the demesnes of lands, as franckalmoigne, frankmarriage, homage auncestrel, for warranty and acquittal, common pur cause de vicinage, et service. Demise of the wife, causa matrimonii proelocuti, &c. Also the mode of giving ad faciendum tale quid, or ut faceret tale, ad intentionem, or ea intentione, ut, &c., ad effectum, condition, considerations, executory, future, and continual; and considerations, executed, present, done, and determined of the one part." Upon perusing this authority, the first observation which presents itself, is, that the word agreement does not occur from the beginning of the case to the end. The second is, that the word bargain does occur; and it is said that all bar- gains have a quid pro quo. But, if the arguments of coun- APPENDIX. 367 Observations upon Wain and Warlters, Sc. scl in Ploiodeii upon the word agreement are of such decisive "weight in Wain aud Warlte^'s, how is it that the counsel arguing the case in Dyer are not entitled to equal respect ? But, contrary to their authority, is the decision in Egerton and Matthews, which turns upon the distinction between the terms bargain and agreement ; that for an agreement there must be a quid pro quo fully expressed ; but that for a bar- gain the expression of the quid pro quo is wholly unneces- sary. But certainly the description of a bargain, as it appears in Dyer, is perfectly correct; and a bargain, so undei-stood. may be considered as synonymous with an agreement as explained in Wain v, Warltei's. The verb to bargain has, sometimes, a different signification, and im- ports, to negotiate ; and a bargain is sometimes in common parlance, used as denoting an advantageous purchase ; but in the statute of fraud, it is plainly used in a strict sense, in which it is equivalent to agreement. There is no fanciful derivation which can be framed for the word bargain so as to influence the argument. It is referred by an old Etymol- ogist, to a French word bargaigner, which by the French writers, is treated as a barbarism : they are a little puzzled about its derivation from some other obsolete words : but we must take the word as an original one. The meaning of bargain, as used in the statute, may be always expressed by agreement ; and if so, all the learning of aggregatio mentium may be applied to it. But agreement, as used in Ftowden, the great authority for the present construction, cannot always be rendered by bargain : as, when the parson agrees with the king for the fir.st-fruits, the word bargain could hardly be used with propriety ; aud it certainly could not be applied with propriety, to the instance which is put of a woman who agreed to be ravished . The inference to be drawn upon the whole case appears to be this ; that the decision, or warrant of privy seal equiv- alent to a decision, in the case from Flowden, seems to treat the term agreement (mentioned in the statute 1 Ed. VI. c. 13,) as rather synopymous with license or assent, than as 368 APPENDIX. Olservations upon Wain and Warlters, &c. implying a mutuality of obligation ; that the etymological definition, as given arguendo, by Pollard in that case, and supported by the argument of Hares in another, is contrary to the general principles of etymology ; that it is opposed by the definition given arguendo by Atkins ; (in the same case from Plowden) which latter is mainly confirmed by the wording of the Act of Parliament (25 Ed. 13,) cited by him ; is consistent with the general principles of etymologyi as before shown ; and supported by the authority {valeat quantum) of such of the etymological dictionary writers who have given the derivation of the word, as have fallen under the author's observation. That the case in Dyer is an authority equally strong for the construction of the word bargain, as strict as that given to agreement in the case of Wain V. Warlters ; that bargain is a more technical term — implying a mutuality of contract, a quid pro quo, a consid^ eration for the thing done or to be done, sold or contracted for — than agreement. That it is rarely, if ever, used in common parlance, to express a simple assent or promise" but that agreement is frequently and ordinarily so applied. That, therefore. First, The foundation of the decision in the case of Wain v. Warlters, as built upon the supposed etymology and technical meaning of the word agreement is inadequate for its support. Secondly, The cases of Wain v. Warlters, and Egerton v. Matthews cannot stand together ; and the cases arising upon the 17th section of the statute, must either require the same strictness of construction as those upon the 4th, or these the same liberality as the others. And unless the strict words (3) or declared intention, (4) of the statute, or the prinoi- (3) As to the wording of the statute, see the arguments of the counsel for the plaintiffs in the case of Wain v. Wa/rlters. (4) the declared intention of the statute in question is to prevent frauds and perjuries. Kow, where a party has deliberately given a written promise to another, there does not seem any great danger of perjury in the proof of the consideration. Promises of this nature are not usually made without adequate consideration, and it must be a more easy and simple process to prove the real consideration, than to invent a false one, and it is equally available. APPENDIX. 369 Observations upon Wain and Warlters, (&c. p1es of common law, as to the inadmissibility of parol evi- dence to explain written documents, (5) absolutely require the moi-e strict construction, the convenience of trade, upon which the principle of the lex mercatoria is founded, will be much liotter consulted by the more liberal one : and further, that the strictness of consti'uction in Wain v. Warlters, most materially impedes and renders almost impossible a very useful species of security, and one without which, in hazardous and difficult times, commercial concerns can hardly be carried on. It Trould perhaps have been quite as beneficial to the interests of commerce, if the doctrine held by three of the judges in the case of Pillan and another V. ilierop and another had been established, namely, that in a mercantile case, where the promise is in writing, a consideration need not be proved. Cer- tainly upon this principle has proceeded that, doctrine of the law Merchant as to bills of exchange, that no consideration meed there be proved. (5) This rule of common law is rather apphoable to agreements in the tech- nical sense of the word, than to promises made in mercaiitile cases. In agreements for the sale of lands, in consideration of marrisige, (fee, unless alt the terms appear upon the fece of the agreement, it cannot be known what the undertaking of the party was ; but in the case of a promise for the debt of another, or a contract for the purchase or sale of goods, the undertaking is clear ; and that for which parol evidence is required, is not so much to ei^lain the memorandum given in these cases, as to shTX. 401 Paisley v. Freeman. an action. And if a man will wickedly assert that which he knows to be false, and thereby draw his neighbor into a heavy loss, even though it be under the specious pretence of serving his friend, I say av^is talibtis istis non jura sub- serviuitt." Ashhurst, J. and Lord Kenyan, Ch. J. concurred with Buller, J. that the present action will lie. But as the grounds of their decisions are all to be found in the above very able and elaborate opinion of the latter, it is not necessary to state them. 51 402 APPENDIX. No. XI. Hatckaft v. Creasy. 2 B. E. 92. This was an action on the case for making a false repre- sentation of another's credit. The declaration stated that the plaintiff, at the time of making the several/afee, &c. representations after-mentioned, was an Ironmonger cariying on his trade, and that the defendant before the said time, &c. had recommended one (r. F. Robertson to deal with the plaintiff, in the way of his trade : and thereupon, just before the making of the false representation, &c. J. H. the younger, the son of the plaintiff, had, on his behalf, applied to the defendant, to inquire of him as to the safety of giving credit to the said Robertson ; yet the defendant, well knowing the premises, but contriving and intending to injure the plaintiff, and to induce him to give credit to Robertson, falsely represented to the said J. H. the younger, "that the plaintiff would be perfectly safe in giving credit to the said Robertson ; as he (the defendant) knew, that she {Robertson) was then in possession of considerable property, by the death of her mother, and was in expectation of a much greater by the death of her grandfather, who had been bed-ridden a con- siderable time." It also averred, that the defendant falsely represented to one Joseph Haycraft, who had applied to him on behalf of the plaintiff, in order to inquire whether the plaintiff might trust the said Robertson, "That she (Robertson) was a lady of great fortune, and much greater expectations ; and that he, (the defendant) knew that the plaintiff might credit her (Robertson) to any amount with perfect safety. It also laid other expressions to the same effect, and particularly concerning Robertson's relationship to certain persons of note ; and then averred, that by means of the said several false representations of the defendant, the plaintiff confiding therein| gave credit to Robertson for divers goods, &c. sold and delivered to her, APPENDIX. 403 Haycraft v. Creasy. to the amount of 485Z. ; and then concluded, that in fact, at the time of the said several false representations, it was not safe to give credit to Robertson, and that she was not in possession of considerable property, &c. nor in expecta- tion of greater, and so negativing all the other representa- tions of the defendant ; (but not alleging that the defend- ant knew them to be false at the time), but on the contrary, that Robertson was then wholly unworthy of credit, and not fit to be trusted, &c. ; and that the said sum of 485Z. was still due to the plaintiff, who, by means of. the several premises was likely to lose the same. There were other counts laying the representations difi'erent ways. At the trial before Lord Keyon, Ch. J. at Guildhall, the representations, as stated in the declaration were distinctly proved ; and one in particular in which the defendant had said, " lean positively assure you, of my own knowledge, that you may credit Miss R.' &c. and their falsehood very clearly shown. But it further appeared, that the defendant him- self had been (in common with a multitude of others) the dupe of the artifices of Miss Robertson, and had himself a firm belief in the truth of his representations, at the time he made them. The jury having found a verdict for the plaintifl", a rule was obtained, calling upon him to show cause why the verdict should not be set aside, and a new trial had, ou the ground that there was no fc-aud or deceit in the defendant making the representation in question ; though he had in- cautiously averred that to be within his own knowledge, which, in strictness, he could not be said to know, but only had reasonable and probable cause to believe. Ershine Oarrmv, Oibbs, and Lawes, showed cause against the rule, and the Attorney General (the late Lord Ellenbo- rough), Dallas, Marryalt, and Gomyn, argued in support of it. But as similar arguments were used by the judges, in delivering their opinions, it is not necessary to repeat those of the counsel. Lord Kenyon, Ch. J. "If there be any doubt in this 404 APPENDIX. Haycraft v. Creasy. case, I should wish to have it put in such a shape as to be carried to the denire resort. But not knowing how that can be done, I shall deliver the opinion which at present I en- tertain upon the case. Here is a tradesman who has suffered a loss to a large amount, in consequence of his having been induced to give credit to a third person : and by this action he calls on the defendant, through whose misrepresentation the loss was incurred, to make it'good. The plaintiff's son, knowing nothing at the time of Miss Robertson, who had been recommended to the plaintiff, by the defendant, to buy goods of him in the way of his trade, 'makes the most particular inquiries concerning her credit, to all which the defendant answers, on several occasions, in the most posi- tive terms, that she was a trustworthy person to his own knowledge. The plaintiff's brother, npt satisfied with this, puts the question expressly to the defendant, whether he stated this upon hearsay, or of his own knowledge, drawing his attention therefore to the subject in the most particular manner ; to which the defendant again replies, '/ can posi- tively assure you of my own knowledge, that you may credit Miss Robertson to any amount with safety.^ The question then is. Whether that representation were true or false ? no doubt it was a gross falsity. She was not a person to be credited with safety, nor had he any knowledge that she was so : and it is a juggle to say that the words, in common par- lance, do not import knowledge in the strict sense of it. They were so understood between the parties at the time, and the plaintiff has suffered a loss in consequence of it. Soon after I came into this court, the case of Paisley v. Freeman occurred. I had the assistance of three very able judges to help me to form my judgment, two of whom had long sat on the bench, and were peculiarly conversant with the forms of actions, and they were decidedly of opinion that the action lay, though we had the misfortune to differ from the other judge, with whom I have now the honor to sit on the bench. I indeed was not then so well versed in the critical form of actions, but I had endeavored to store APPENDIX. 405 Haycraft v. Creasy. my mind with established principles, and I have learned that laws were nevei- so well directed, as when they were made to enforce religious, moral and social duties between man and man ; and I knew that it was repugnant to all such duties for one man to make false representations to another to induce him to take measures which were injurious to him. That case has been acted upon ever since, and has recently been re- cognized by another decision of this court, in which the two judges who have since taken their seats on the bench concurred. I am not able to distinguish this case from those, upon principle. The question has nothing to do with the statute of frauds. That was meant to guard against certain legal presumption of fraud arising out of contracts but not to indemnify persons against tortuous acts and misrepresen- tations, whereby others are deceived and injured. For a series of years since Paisley v. Freeman, cases of this sort have occurred, which have passed without dispute. And I have been led to depend on that decision, acquiesced' in so long, and, as I conceived, no longer disputed by the learned judge who differed at first from the rest of the court. It is said that I imputed no fraud to this defendant at the trial. It is true that I used no hard words, because the case did not call for them. It was enough to state that the case rested on this, that the defendant affirmed that to be true within his own knowledge, which he did not know to be true. This is fraudulent ; not perhaps in that sense which affixes the stain of moral turpitude on the mind of the party, but falling within the notion of legal fraud, such as is presumed in all the cases within the statute of frauds. The fraud consists, not in the defendant's saying he believed the matter to be true, or that he had reason so to believe it, but in asserting positively his knowledge of that which he did not know. There are, it is true, some duties of imperfect obligation, as they are called, the breach or neglect of which will not subject a party to an action. If I know that one in whose welfare I am interested is about to marry a person of in- famous character, or to enter into commercial dealings with 406 APPENDIX. Haycraft v. Creasy. an insolvent, it is my duty to warn him ; but uo action lies if I omit it ; but if any one become an actor in deceiving another, if he lead him by any misrepresentations to do acts which are injurious to him, I learn from all religious, moral and social duties, that such an action will lie against him to answer in damages for his acts. And when I am called to point out legal authorities for this opinion, I say that this case stands on the same grounds of law and justice as the others which have been decided in this coui-t on the same subject. His lordship afterward added that as to the want of criminal intention in the paity mailing the false represen- tation, he had learned from Lord Bacon's maxims, that there was a distinction in that respect, between answer- ing civiliter and crirrdnaliter for acts injurious to others : in the latter case the maxim applied, actus nonfadt reum nisi mens sit rea: but it was otlierwise in civil actions, where the intent was immaterial if the act done were injurious to another." Geose, J. — " I do not understand the question to be, whether this Icind of action be maintainable ; on that subject, although I still profess myself unable to comprehend the ground on which the case of Paisley y. Freeman, was decided, yet I hold myself bound by the authority of it, so long as it remains unimpeached by any contrary decision. But I take this question here to be, whether the evidence prove that which is necessary to sustain the action? which, so far as I understood the arguments and opinion of the court in Pais- ley v. Freeman, was said to be founded on fraud. It was there expressly declared in so many words, that fi'aud or deceit was the foundation of the action. The only question is, whether there were such evidence of fraud in this case as will sustain the action ? Now I know not where to find any fraud in the transaction between these parties. I consider what was said by the defendant upon the several occasions, as no more than asserting his opinion ou the credit of Miss i?o6eJ'<- son ; an opinion which he seems to have fairly entertained. It is true that he asserted his own knowledge upon the subject ; APPENDIX. 407 Haycraft v. Creasy. but consider what the subject matter was of which that knowledge was predicated ; it was concerning the credit of another, which is a matter of opinion. When he used those words, therefore,- it is plain that he only meant to convey his strong belief of her credit, founded upon the means he had had of forming such an opinion and belief. There is no reason for us to suppose, that at the time of making these declara- tions he meant to tell a lie, and mislead the plaintiff. He himself had trusted her before to a considerable amount. He had no reason to know otherwise than what he expressed ; and had on the contrarj^, reasonable grounds for asserting knowledge in the sense I understood him to have used it. He had for some time before seen many other persons treat Miss Robertson as a person of fortune. He himself saw her living in affluence. He had seen plans of her supposed estate in Scotland ; and had observed other circumstances, altogether well calculated to delude him. I cannot say that I should not also have been duped by the same appearances. Then it is also a circumstance in the case, that he does not appear to have any interest in misrepresenting the matter to the plaintiff, otherwise than as it really appeared to him. And taking the whole together, I think the evidence goes no further than his asserting that to his firm belief and con- viction she was deserving of credit ; and that the defendant himself was a dupe to appearances. But until' some case shall be decided which goes further than that of Paisley v. i^Veewzan, there must be evidence of fraud to support such an action : and evidence of being a dupe is not sufficient. Therefore, without meddling with the law as laid down in that case, but taking it at present to be right until it is over- turned, I cannot concur in this verdict, there being no evi- dence of fraud as required by that determination." Lawrence, J.—" Considering the great extent of this question, I wish that it may be put upon the record, in order that it may be submitted to the judgment of a higher court. I have always understood the doctrine laid down m Paisley \. Freeman to be, that without fraud there was no cause of ac- 408 AFPENDIX. Haycraft t. Creasy, tion. I collect that from the opinion delivered by each of the judges who concurred in that judgment. If this case had gone to the jury on the ground of fraud, I cannot say there would have been no evidence to support the verdict ; but the case went to them on the ground, that though the defendant were himself a, dupe, yet if the representation made by him were false, he was answerable. Then the question is, whether if a person assert that he knows such an one to be a person of fortune, and the fact be otherwise, al- though the party making the assertion believed it to be true, an action will lie to recover damages for an injury sustained in consequence of such misrepresentation ? It does not ap- pear that any of the judges went this length in Paisley v. Freeman. Stress had been laid on the defendant's assertion of his own knowledge of the matterj but persons in general are in the habit of speaking in this manner, without under- standing knowledge in the strict sense of the word in which a lawyer would use it. This observation will not only apply to ordinary men in common conversation, but also to persons of the best information. If any man should say he knows that there is no city lai'ger than London, it must be under- stood that he is speaking only from information and belief upon a subject, and not from actual mensuration. The same must be understood when one is speaking of his knowledge of the credit of another. lu order to support the action, the representation must be made malo animo. It is not necessary that the party should gain, or intend to gain any- thing for himself by it ; but if he make it with a malicious intention that another should be injured by it, he shall make a compensation in damages. But there must be something more than misapprehension or mistake. However, in defer- ence to the opinion from which I differ, I cannot but state this with doubt and distrust of my own opinion." Le Blanc, J. — " I concur with my brothers in wishing to have this question put on the record, but shall give the opinion which I now entertain. The question is, whether the action is maintainable on a mere representation by the APPENDIX. 409 Haycraft t. Creasy. defendant, that he knew that of his own knowledge, which in fact he could only be said to know according to the best of his information and belief? Now the law, as laid down in Paisley v. Freeman, went no farther than this, that where a party with a design to injure another, makes a false repre- sentation of a matter inquired of him, in consequence of which the other is damnilied, he shall answer in damages. The case of Eyre v. Dunsford followed on the same ground. The former case came on upon a motion in arrest of judgment on the third count. The count stated, that the defendant intending to deceive and defraud the plaintiff, did wrongfully and deceitfully encourage and persuade them to sell and de- liver certain goods to one Falch upon credit ; and for that purpose did /aZse/y, deceitfully, and y?'aMcZM?t'wy the party to be charged therewith, or some other person thereunto by him lawfully authorized." Of every agreement, the consid- eration is an essential part, and a legal consideration was as necessary to the validity of a contract, before the statute as since. But since the statute, it is also necessary that the consideration be expressed in the contract itself, in all cases within its purview. This point was first solemnly decided by the unanimous opinion of the judges of the court of King's Bench, in the ciuse ot Wain v. Warlters ; and was afterward recognized and affirmed by the same court, in the case of Egerton v. APPENDIX. 415 Packard v. Richardson, and others. Mattfiews, et ah ; and again in the case of Stadt v. Lill, in which both the former decisions are considered as good law. Here then are three solemn decisions of the King's Bench, directly maintaining the principle we contend for. The same doctrine was held, and expressly upon the au- thority of the case of Wain v. Warlters, by the Supreme Court of JVeio York, in the case of Sears v. Brink <& Brink; and afterwards in that of Leonard v. Vredenburgh. In this case, Kent, C. J. reconciles the doctrine with all the authori- ties cited in opposition to it. But aside from authorities, we rely on the plain and obvi- ous intention of the statute, which was to prevent frauds aud perjuries, in proving parol contracts. Such being the known object of the legislature, who passed the act, the court have a safe rule of interpretation ; for that construction of a stat- ute, which carries into effect the design of the legislature, can never be wrong, while that which defeats such a design, can nevei' be right. It could never have been intended by the framers of the act, that the naked promise should be in writing, which of itself, without a considei-ation, would in no case have any binding effect ; and yet, that the considera- tion, which is the life of the contract, need not be so expressed. To pass such an act, and so to construe its provisions, would be like closing one of two avenues, equally broad and equally passable, to the same apartment, with a view to exclude ad- mission, and leaving the other open. The statute of frauds has often been called a wise law ; and Lord Kenyan, in the case of Chaplin v. Rogers, pronounces it one of the wisest laws in the statute book ; and Lord Nottingham used to say of it, that every line was worth a subsidy ; but it is perhaps not hazarding too much to say, that it is wholly destitute of wisdom, and that all its lines are not worth a subsidy, if the construction we contend for is not the true one. This point has been several times before this court, but , never expressly decided. In the case of Hunt, adm. v. Ad- ams; Parsons, C. J. found a difficulty in reconciling the deci- sion in Egerton v. Matthews with that in Wain v. Warlters; 416 APPENDIX. Packard v. Richardson, and others. but it is suggested with nauch deference, that the point deci- ded in the case first mentioned, was not sufficiently considered by that great man. A contract for the sale of goods, must of necessity contain the consideration, to be intelligible ; as in that case cotton was the consideration of the promise to pay money. For every pound of cotton delivered by Turn- bull, Egerton was to pay IM. The stipulated delivery of the cotton, was the consideration, appearing on the face of the writing. 8tadt v. Lill, (9 East, 347). Such promise can in no case be expressed, without, at the same time, expressing the consideration on which it is founded. This is not the case where Qne man promises to pay the debt of another. We see not therefore why the cases of Wain v. Warlters, and Egerton v. Matthews, may not well stand together, resting as we believe they do on different principles. Webster and Morey for the plaintiffs. Pakkee, C. J. delivered the opinion of the court. — The case presents two* questions of importance, neither of which has received a judicial determination in our courts. The arguments upon them have been exceedingly ingenious as well as able, leaving nothing untouched in point of authority or general reasoning, which has relation to the subject. The first question relates to the rejection of Mr. Fishe, as a witness, he having signed the note as agent to the Stony Brooh Manufacturing Company, and being called upon to prove that the consideration of the note was usurious. [The decision of the court on this branch of the subject is omitted.] The other question presented by this case, is of a more embarassing nature ; not so much on account of any intrinsic difficulty in construing the statute, out of which the ques- tion arises, as from an unwillingness to differ from the high *AIliidmg to another objection that was also made at the trial, to the deci- sion of the Chief Justice, who refused to suffer Semry Fiske, who had signed the note as agent, to give evidence of usury in the transaction, and the question of whose admissibiUty was argued at the same time with that of the construction of the statute of irauds. APPENDIX. 417 Packard v. Richardson, and others. authoi-ities, who have adopted a construction, which, after mature deliberation, we think is not warranted by the stat- ute itself, or any practical exposition which has been given to it since it was enacted, until the case of Wain v. Warlters was decided in the year 1804. The case, as stated in the declaration, and as it was made out in proof, would admit of our avoiding the naked ques- tion presented by the report. For the plaintiff having made an attachment of property belonging to the company, and having relinquished that attachment upon receiving the guar- anty of the defendants ; according to most of the authorities, the promise would not be withui the statute ; there being a new consideration, between the new contracting parties suf- figient to maintain the promise without the writing. But as the question is now fairlj' presented to us, and has been ably argued, and as it often arises at nisiprius, we think it best to give our reasons for deciding that the promise to pay the debt of another, in writing, and signed by the party intend- ing to be bound, is a sufficient compliance with the statute ; without any recital in the writing of the consideration upon which the promise is founded. The original promise is by the Stony Brook Manufactur- ing Company, by a note payable on demand. After the making of the note, and after it was endorsed to the present plaintiff, the defendants severally signed their names on the back, and over their signatures were written these words, " We acknowledge ourselves holden as surety for the pay- ment of the within note." The consideration existing was, that these defendants were members of the company which made the note ; and that a suit, which had been commenced, was stopped by the plaintiff, at their request. But this considera- tion was proved by parole, and the writing acknowledges no consideration whatever. It is somewhat remarkable that a statute, which has so important a bearing upon contracts in daily use, should have remained without the construction recently given to it, from the time of its enactment, which was in the 29 Oar. 2, to the 53 418 APPENDIX. PacTcard v. Richardson, and others. year 1804, when the case of Wain v. Warlters was decided. That it did so remain will appear from the circumstance, that neither the counsel in arguing that case, uor the court in deciding it, refer to any pre-existing case in support of their doctrine : a doctrine which, when announced, excited much sur'prise both in England and iu this country. Our iJi'ovincial act was passed in the year 1692, and con- tinued in force until the year 1788, when it was superseded by the statute of the Commonwealth, which as well as the provincial act, is similar in substance, and except in one in- stance where the sense is not altered, iscoijiedi;eJ'5ai?mfrora the English statute. So thafi we have had the statute in ope- ration for more than a century ; within which period innu- merable collateral engagements have been made ; and it has never, until within a few years, as far as we can ascertain, been doubted that, if one man, for a sufficient consideration, deliberately signed his name to a promise to pay the debt of another, he would be bound by it, although no consideration whatever was mentioned iu the writing which he signed. Although some consideration must exist to give validity to such a promise, it is generally of a nature not to be disputed ; and if disputed, has been proved by parole tes- timony. The consideration need not be for the benefit of the party making the promise, and it seldom is for his bene- fit. Forbearance to sue, or surceasing of a suit, being most frequently the consideration of such undertakings ; and these being altogether for the benefit of the original debtor. This being the case, would seldom, if ever, enter into the imagi- nations of the parties to such a contract, that unless the mo- tives and considerations which led to it were put down in writing, the engagement was void. Having made these preliminary remarks, I shall proceed to consider .the statute, and what is its most obvious construc- tion, without reference to decided cases ; and then take a view of the decisions, which have been had upon it, both in England and in this country. The first section of our statute of 1788, c. 16, corresponds, APPENDIX. 419 Pochard v. Richardson, and others. as hcis been observed, exactly with the fourth section of the statute of 29 Car. 2. Exclusive of other subjects provided for in the same section, it enacts, " that no action shall be brought, whereby to charge the defendant upon any special promise to answer for the debt, default or misdoings of another person, unless the agreement, upon which,such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some pei'son thereunto by him lawfully authorized." The obvious purpose of the legislature would seem to be, to protect men from hasty aud inconsiderate engagements, they receiving no beneficial consideration ; aud against a misconstruction of their words by the testimony of witnesses, who would genei'ally be in the employment and under the influence of the party wishing to avail himself of such engage- ments. To I'emove this mischief, the promise or engage- ment shall be in writing, aud signed ; in order that it may be a deliberate act, instead of the effect of a sudden impulse, aud may be certain in its proof instead of depending upon the loose memory or biased recollection of a witness. The agreement shall be in writing : what agreement ? The agree- ment to pay a debt, which he is under no moral or legal obli- gation to pay, but which he shall be held to pay, if he agrees to do it, and signs such agreement. This appears to be the whole object and design of the leg- islature ; and this is effected without a formal recognition of a consideration : which after all is more of a technical requisition, than a substantial ingredient in this sort of con- tracts. And it would seem further, that the legislature chose to prevent an inference, that the whole contract or agree- ment must be in writing : for it is provided that some memorandum or note thereof in writing shall be sufficient. What is this but to say, that if it appear by a written memo- randum or note, signed by the party, that he intended to be- come answerable for the debt of another, he shall be bound, otherwise not ? How then is it possible, with these expressions in the stat- 420 APPENDIX. Packard v. Richardson, and otliers. ute, to insist upon a formal agreement, containing all the motives or inducements which influenced the party to become bound ? Yet such is the decision of the court of King's Bench, in the case of Wain v. Warlters. But ill a case happening in the same court a short time afterward on another section of the same statute, a different construction is adopted. By the seventeenth section of the British statute, and the second section of our own, it is pro- vided, " that no contract for the sale of any goods, wares, or merchandize, for the price of ten pounds or more, shall be allowed to be good; except the purchaser shall accept part of the goods so sold, and actually received the same, or give something in earnest to bind the bargain, or in part pay- ment, or that some note or memorandum in writing of the said bargain, be made and signed by the parties to be charged with such contract, or their agents thereunto lawfully author- ized." Yet in the case of Ugerton v. Matthetvs it was decided that a memorandum containing only one side of the bargain, and without any consideration expressed, was sufficient. When this case came before Lord Ellenborough, at nisi prius, he thought it governed by the case of Wain v. Warl- ters; and it is certainly difficult to perceive a difference be- tween the two cases. If the word agreement imports a mutual act of two parties, surely the word bargain is not less significative of the con- sent of two. In a popular sense, the former word is fre- quently used as declaring the engagement of one only. A man may agree to pay money, or to perform some other act ; and the word is then used synonymously with promise or engage. But the word bargain is seldom used, unless to ex- press a mutual contract or undertaking. If then the techni- cal meaning of the word agreement made it necessaiy to insert the consideration- in a collateral promise to pay, why not the word bargain also, as Lord Ellenborough at first supposed ? But the court, Lord Ellenborough consenting, overruled the decision at nisi prius, and decided that a contract for the APPENDIX. 421 Packard v. Richardson, and others. sale of goods was valid, without any consideration expressed in the contract. There are certainly grounds to suppose, that some doubts began to he entertained of the correctness of the decision in Wain V. Warlters. We cannot otherwise account for the unwillingness to apply the same principle to the case of JEgerton \. Matthews : and we shall see hereafter that there was considerable cause for the court of King's Bench to hesitate before they applied the rule to other cases. The import of the word agreement forms the principal if not the only ground of argument, in favor of the doctrine ; and because the word bargain is used in the seventeenth sec- tion, instead of the word agreement, the law is different. Well might Chief Justice Parsons say, as he did in the case of Hunt, adm, v. Adams, when the two cases of Wain v. Warlters and Egerton v. Mattheios were incidentally brought before him: "These two decisions are not easily to be re- conciled. A bargain is a contract or agreement between two parties, the one to sell goods or land, and the other to buy them. A contract of this sort is void in law, unless made on sufficient consideration. And the consideration of a bargain seems to be a^ necessary a part of it, as of any other contract or agreement : and there is the same danger of per- jury in proving the consideration of a bargain by parole, as of any other agreement. But if the word agreement may be understood in the popular sense, as not necessarily including the consideration for it, we may approve of the decision in the latter cajse, while we may doubt as to the former case." But admitting the case of Wain v. Warlters to have been received in England as giving the true construction of the statute; and that the rule is well settled in that country; which, it will be seen presently, is far from being the case : it does not necessarily follow that it should be adhered to here. The decision took place long since our revolution, and can therefore be regarded only as the opinion of great and learned men, and not as an authority. W^e are to con- sider what has been the practical construction in our owu 422 APPENDIX. Packard t. Richardson, and others. country ; and believing that to have been for more than a century, different from the rule so lately adopted in England, it would be too late for us to resort to the etymology of a word, for the purpose of obtaining a new construction, and to insist upon the legal import, instead of the popular sense of terms, which the legislature are as likely to have taken in the latter as in the former sense. But it should be considered in the second place, that this doctrine, when first promulgated iu England, was not well received by the profession ; and that to this day it is doubted and questioned, whenever it is advanced. The case of Wain V. Warltera, appears to have been concurred in by all the judges of the King's Bench, but never seems to have been cited as an authority, without an apparent reluctance ill the court to apply the same rule to other cases ; and when- ever it was possible, some distinction seems to have been sought out to save the case before the court from the opera- tion of the rule. Lord Ellenborough took the lead in the decision, ground- ing himself on the word agreement, and the known accuracy of Sir Matthew Hale, who was supposed to have drawn the statute. Mr, Justice Lawrence, on the contrary, entertained doubts, and thought the statute loosely penned. Mr. Justice Le Blanc concurred, but expressed a wish that the statute had not reached the case of a promise, so as to require the consideration to be in writing. If, as Mr. Justice Lawrence thought, the statute was loosely penned, it may be supposed the word agreement was untechnically used, or used in the popular sense ; in which case it seems agreed that the subsequent words would not require that the consideration should be in writing, The same section provides for the case of an agreement in con- sideration of marriage, and of- an agreement not to be performed within a year. The use of the word in these pro- visions led to the adoption of the same word in the succeed- ing part of the section ; without any intention, I apprehend, APPENDIX. 423 Packard v. Richardson, and others. of prescribing the form in which a promise in writing should be drawn up, to make it binding. I have already adverted to the case of Egerton v. Mat- theivs, as departing from the principle adopted in that of Wain V. Warlters. And as late as the year 1816, in the case ol" Goodman v. Chace, the case of Wain v. Warlters was again brought before the King's Bench. Ohace, iun. was in the custody of an officer upon a capias ad satisfacien- dum. He applied to the attorney of the creditor for time, and in the mean while to be released. The attorney con- sented, provided Chace's father would sign a written paper in the following words, " I do hereby undertake and agree to put the above defendant in the custody of the sheriff of H. on or before Saturday next ; and in default of my doing so, I undertake to pay the damages and costs, for which the said defendant has been this day taken in execution by the said sheriff, at the suit of the above-named plaintiff." The case of Wain v. Warlters was cited to show that the agree- ment was void, because no consideration was expressed in it. The counsel for the plaintiff denied the case to be law. Lord Ellenborough said, " it would be very desirable to have a further examination into the decisions on the other side of the hall, where these cases more frequently occur than here, in order that we may more clearly ascertain what the prac- tice is there ;" and for this purpose a second argument was ordered. But afterward the court declared that it was not necessary to hear counsel, as this was a case clearly not within the statute, it being an original undertaking of the defendant Chace son. No doubt this decision was right ; but the case is cited to show that counsel were allowed to deny the authority of Wain v. Warlters^ and that the court hesitated, so far as to order a second argument. There is strono- reason to believe that the decision would have been overruled, if the case then before the court had not been set- tled upon another principle. In chancery the doctrine was not at all well received. In the case of a petition to be allowed to prove a debt which 424 APPENDIX, Packard v. Richardson, and others. was guaranteed, against the guarantor, no consideration be- ing expressed, the case of Wain v. Warlters being cited, the counsel for the petitioner said, the decision of the court of King's Bench in that case could not be supported. The Lord Chancellor Eldon said, "There is a variety of authori- ties directly contradicting the case in Kiug's Bench, which is a most important case in its consequences ; for the under- taking of one man for the debt of another does not require a consideration moving between them." 14 Yes. jr. 189. — So in the case Ux parte Gardom. Mr. Bell, in support of the petition, mentioned the case of Wain v. Warlters, as one which could not be supported. Lord Eldon said, "The first objection, viz. that which Wain v. Warlters was cited to support, is of great importance. Until that case was de- cided some time ago, I had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear on the face of the writing." This is very strong language ; and yet, probably every judge and lawyer in England, and in this country, would have felt himself warranted in saying the same. 15 Ves. jr. 286. But this is not all. The Common Bench also signified their dissent from this doctrine, as much as could be done without deciding directly contrary to it. The case of Mor- ris V. Stacy was for the price of shoes sold to another per- son. The defendant was the agent, and as such ordered the shoes. He proposed to give bills drawn by Wallis on Bromley, endorsed by Burns. He was pressed to endorse them himself, but refused, saying he would give a letter of guaranty, which would be as good. The letter was in these words: "I herewith send you drafts drawn by TFh^fe, ac- cepted by Bromley, and endorsed by Burns ; and should the bills not be honored when due, I promise to see that they do so." The counsel for the defendant cited the case of Wain V. Warlters. Gihbs, C. J. said, "It is sufficient if it appear on the face of the letter that, in consideration that the plaintijf would take the notes, the defendant would APPENDIX. 425 Packard v. Richardson, and others. indemnify him. The consideration therefore is apparent. I do not think it necessary in this case, to overrule the de- cision in Wain v. Warlttrs. I think this undertaking bind- ing, notwithstanding that case." HoUs JST. P. 153. This was in 1816, and it may be plainly inferred, from what fell from the Chief Justice, that if it had been necessary, the case of Wain v. Warlters would have been overruled. It was virtually overruled, although not expressly ; for no conside- ration in truth appears in the letter. The signer says, I herewith hand you drafts. This imports no consideration, and it was only from extrinsic evidence, that the Chief Jus- tice's notion of a consideration could have been obtaiued. Anything seems to have been caught at, to save a case from the operation of the doctrine in Wain v. Warlters. Such being the reputation of that case in England, it surely does not present a very formidable obstacle to a dif- ferent construction of the statute in this country ; and cer- tainly it would not warrant us in overruling what we believe has been the practical, as well as the just construction in our courts for so long a period. It is indeed desirable that statutes, made for the regulation of personal contracts in commercial countries, should receive similar adjudications in all courts. But it is better for those courts, who may have adopted a novel construction, to retrace their steps, and o-o back to the old foundations, than that others, from a spirit of comity, should imitate them ; for innovation in the administration of justice, or in the principles of jurisprudence, are more to be dreaded than any where else ; as it tends to unsettle the minds of the community, and to introduce into the judicial tribunals the practice of legislating, under the guise of declaring the law, which is their proper function. We have' taken pains to inquire what reception the doc- trine, which we consider novel and unsound, has met with in any of the courts of the United States ; and we do not tind it has been recognized any where but in New York. We are in the habit of showing great respect to the deci- sions of the Supreme Court of that State, for that bench, 54 426 APPENDIX. Packard v. Richardson, and others. ever since we have been enabled to judge of its character by the masterly reports of Mr. Johnson, has been distinguished by great learning, and uncommon legal acumen. If any thing could cause us to hesitate jn pronouncing an opinion, which we have arrived at after mature deliberation, it would be to find that opinion contradicted by a deliberate decision of a court we so highly respect. But there are some circumstances, attending the decision upon this subject by that court, which we think may in some measure justly impair its influence on our minds. The case of Sears v. Brink, in which the question first occurred, happened not a great while after the case of Wain v. Warl- ters was first promulgated in this country. The habitual veneration, which the courts of this country have ever en- tertained for the opinions of the great men, who successively fill the seats of the court of King's Bench, would iiaturally lead to the adoption of those opinions, in analogous cases. The judicial propensity is to repose upon authority. This propensity, although almost always useful, as it tends to re- press ingenious searches after novelties and distinctions ; which, if indulged, would produce uncertainty in that science, which, more than all others, the public interest requires should be fixed and stable, may sometimes lead to hasty adoption of principles, which a deliberate investigation would prove unsound. In this case of Sears v. Brink, Judge Van Ness, who delivered the opiuion of the court, seems to have relied more upon the argument and reasoning of Lord Mlenhoroiigh, in the ca.se of Wain v. Warlters, than upon the resources of his own mind, for the construc- tion of the statute ; and this it would be natural for any judge to do, under the like circumstances. Like him, he resorts to the etymology, and the technical import ot^the term agreement, as the basis of his construction. I think it has been shown, that too much stress was laid upon this source of argument. Indeed I cannot but enter- tain the belief, that neither the British Parliament, nor the Legislatures of Wew York or Massachusetts Q\Qv\(}dke:di into APPENDIX. 427 Packard t. Bichardson, and others. P/ou'den or Comyns, or any law dictionary, to ascertain the force and meaning of that term ; as has been done since, in order to make out the construction of the statute. Some- times the sense of an instrument or statute is lost by looking too deep for it ; as men have been known to impoverish themselves, by digging into the bowels of the earth for i-iches, which they would have obtained with less labor, by working upon its surface. Not that I am disposed to treat with dis- respect the labors and researches of patient and learned ju- rists, in ancient or modern times. Certainly the science of the law requires such investigations ; hut, as in other sciences, the object of pursuit has been sometimes lost, by reason of its being thought at a distance, when all the time it has been near. Another thing is worthy of remark, viz : that it is proba- ble that neither the court nor the counsel, when the case of Sears v. Bnnh was discussed, knew that the case of Wain V. Warlters was a suspected case in England. For neither of them advert to any of the cases, in which the doctrine has been doubted. Indeed the strongest of those cases have been passed upon since the case of Sears v. Brink. The case of Wain v. Warlters at that time stood in JVew York unquestioned, and therefore came with great force upon the minds of the bench and bar. But afterward, in the case of Leonard v. Vredenhurg, the question was again presented to the New York court ; and Chief Justice Kent bestowed the attention of his powerful mind upon it. I do not understand him ;is approving the doctrine. On the contrary, in reference to the cases of Wain v. Warlters, and Sears v. Brink, he says, — '•! have not been altogether satished with the decisions referred to." He then discovers what did not occur to him at the trial of the action, that it admitted of a distinction from those two cases, and therefore says, — " the present motion can be determined in favor of the plaintiff without disturbing them." He then proceeds to make an ingenious, and I think a just 428 APPENDIX. Packard y. Richardson, and others. classification of the cases, which have generally been thought to come within the statute. His first class is, where credit has been given upon the previous agreement of a third party to pay, or guarantee payment, for goods which shall be delivered. This he calls a collateral engagement within the statute, but no proof of consideration necessary, except' the debt which is created. The collateral undertaking in such case is the essential ground of the credit given ; and the case of a surety or guarantee of a contract, subscribing at the same time with the principal, is within this class. Vide Hunt adm. v. Adams, 5 Mass. Rep. 358, and Stadt v. Lill, 9 East. 348. The second class is, where the collateral seciu-it}' is subse- quent to the creation of the debt, and not the inducement to it. Here a further consideration must be proved, such I suppose as forbeariug to sue, or the surceasing of a suit. And the third class is, when the promise to pay the debt of another arises out of some new consideration of benefit or harm, moving between the new contracting parties. Such is the case, when the creditor gives up some lien or attach- ment, in consequence of the promise of the third party to pay the debt; This latter class he considers an original undertaking, capable of being proved by parole, as not coming within the statute ; and this agrees with the English doctrine, as settled in the case of Williams y. Leper, 3 Burr. 1886. Now, it is a little remarkable, that, in giving so minutely the qualities of these diflTerent classes of contracts, and in adverting toWain v. Warlters, as coming within the second class, nothing is said from which the necessity of having the consideration, as well as the promise, in writing, can be inferred. All the inference which can be fairly made is, that such a promise must have a new consideration proved. But the Jiind of proof is left undecided ; and the case before the court was determined to be within the third class, which required no proof of a distinct consideration. There was therefore no necessity of " disturbing the cases which APPENDIX. 429 Packard v. Richardson, and others. had been decided," and with which the learned Chief Justice "was not altogether satisfied." But if the M'ord agreement in the statute is to be referred to collateral promises, as was determined in the cases of Sears v. Brink, and Wain v. Warlters, it is not easy to see who the first class of cases, any moi-e than the second, should be excluded from the operation of the rule. There must be a consideration. This is admitted on all hands. The only question is about the mode of proof. When a man for his own debt makes a promissory note, not negotiable, and a third party puts his name on the back of the note, this is to be considered a promise to pay the debt of another, and he may be sued either as surety or guarantor. If he is considered a surety, according to our case of Hunt adm. v. Adams, he is viewed as an original promisor ; and no other evidence of consideration would be required then against the principal in the note. But no man can be held on such a promise, unless it be in writing and signed hy him. So that the case is within the statute, and yet whatever consideration moved to the imdertakiug, may be proved by parole, according to our law, and to the case of Leonard v. Vredenburg. Suppose a promissory note given hj a, A to B payable in sixty days, expressly in consideration of a pre-existing debt, and Cat the same time writes on the back — "I promise to pay the contents of the within note in ninety days, if A does not pay it according to its tenor, demand being made upon A, when it falls due, and notice given to me of non- payment." This is certainly a promise to pay the debt of A. No consideration is expressed ; and yet the considera- tion is the credit given to A. It comes within the statute ; for such a promise would be void, unless in writing. But this agreement would be M'ithin Chief Justice Kenfs first class of cases, in which the consideration may be proved by parole. All the mischiefs, supposed to be provided against by the statute, would exist in the case put, as much as if the collateral undertaker had signed his name the day after 430 APPENDIX. Packard v. Richardson, and others. the oi'igiual promise ; which would bring the promise with- in the second class of cases, supposed by Chief Justice ^n< to be governed by the case of Wain v. Warlters. This in)portant question came before the Supreme Court of the United States, in the case of Violett v. Patton. The case was from Virginia, and arose on their statute of frauds, which is lilie ours and the English statute ; except that it provides that the undertaking shall be void, unless the promise or agreement shall be in writing, and signed by the party, &c. Chief Justice Marhall, in deliver- ing the opinion of the court, considers the variance from the English statute so essential, that the doctrine in the case of' Wain V. Warlteis does not apply. It is worthy of remark, that the words of the Virginia statute are precisely what Mr. Justice Le Blanc said, in the case of Wain v. Warlters, he wished the English statute had been. There must be a con- sideration to a promise as well as to an agreement ; and if the intention of the legislature was, that the consideration of an agreement should be in writing, there seems to be no reason of policy why a diflferent principle should be applied to a promise. For the evils to be remedied by the statute are as great in one case as in the other ; it being as easy to set up the consideration of a promise by perjury, as the consideration of an agreement. The csise of Russell v. Clark et al. 3 Dallas, 415, was refened to by the council for the defendants, as deciding that the consideration of a promise to pay the debt of another must be in writing. But we have looked into that case, and do not find it to be so. Letters were relied upon to prove that the defendants pro- mised to guarantee certain bills of exchange ; but the letters did uot prove the fact. Parole evidence was admitted at the Circuit Court to prove that a promise was really intended by the letters, but the Supreme Court reversed the decision, on the ground that, by the statute, the whole agreement, that is, the whole pvppai^e, -was required to be iu writing ; APPENDIX. 431 Packard t. Richardson, and others. and this was certainly correct. Nothing was said about the consideration. We have not been able to iind that any judicial decision has taken place upon the statute of frauds, &c. in any other court within the United States, than those I have alluded to. In a note however to the case of Wain v. Warlters, in the Connecticut edition of Easfis reports by Mr. Day, an elaborate examination of the doctrine is given by their late Chief Justice Swift. In his argument he has gone into a profound investigation of the legal meaning of the word agreement, in order to meet the principal argument of Lord Ellenborough : and he concludes with a decided disapproba- tion of the doctrine laid down by the couit of King's Bench. With respect to our own court, whenever the case of Wain v. Warlters has been cited, it has been treated as doubtful, and has never been recognized as law. I have already recited the observations of Chief Justice Parsons upon it, in the case of Hunt adm. v. Adams ; and there is uo doubt, from what fell from that great man upon that oc- casion, that had the case before him requijed it, he would have saved us the trouble of this elaborate investigation. The case of JJlen v. Kittredge, 7 Mass. Bejp. 233, was decided in direct opposition to the principle contended for by the defendants in this action ; although the cases of Wain V. Warlters and Sears v. Brink were cited and urged by the able and learned counsel for the defendant. Indeed the court, in the case referred to, went far beyond what is necessary to support the action now before us. For the endorsement of Kittredge was in blank, upon a pre-existing note, to which he was not a party ; and the plaintiff was permitted, not only to prove by parole the consideration, but to insert the words of a guaranty over the name of Kittredge, upon proof that he declared his signature as good, for the purpose intended, as if anything had been written over it. Upon this review of the cases, which have arisen in this country and in England upon this important subject, we are relieved from any imputation of disrespect toward the courts 332 APPENDIX. Packard t. Richardson, and others. of King's Bench or of New York in declining to adopt the construction which they have given to this statute. "We find the case oiWain v. Warlters, to have been received with doubt and hesitation by the tribunals of the same coun- try in which it was decided : that the case of Sears v. Brink has not been fully recognized, in any case arising subsequently in JVeio York; that in the Supreme Court of the United States the doctrine was doubted, and the application of it avoided : that in Connecticut an eminent jurist has borne tes- timony against it : that in our own State a judge of the first eminence has spoken of it unfavorably : and that one case has been decided in direct opposition to it. We are not therefore overruling a settled principle, or in- troducing a new construction, in refusing to yield to this doctrine : but are merely vindicating what we believe to be the true and established construction, from the doubts brought upon it by the decision of the court of King's Bench. A contemporaneous construction of a statute is generally the best. It gives the sense of a community, of the terms made use of by a legislature. If there is ambiguity in the language, the understanding and application of it, when the statute first comes into opera,tion, sanctioned by long acqui- esence on the part of the legislature, and judicial tribunals, is the strongest evidence, that it has been rightly explained in practice. A construction under such circumstances, be- comes established law ; and after it has been acted upon for a century, nothing but legislative power can constitutionally eflect a change. We can say with Lord Ellenborough that until the case of Wain v. Warlters was decided, " we had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear on the face of the writing ;" and so understanding the law, we have no authority or dispo- sition to change it. The court, for the foregoing reasons, are unanimously of opinion, that the plaintiffs action is well maintained by the NOTE. 433 writing declared on, and by the parole proof, which was given to support it. Judgment on the verdicL* NOTE. [The case of Michigan State Bank v. Estate of Leaven- worth, referred to on page 218 has since been reversed, so far as it relates to the effect which the taking of collateral security by the principal will have to discharge the sureties. Austin V. Curtis and Walker, decided at the General Term of the Supreme Court. Not yet reported.] *In Trinity Term, 1821, the court of King's Bench unanimously oonfiimed the decision iu WcUn, vs. Warlters, 4 Barn, and Aid. 595. Saunders v. IVake- field. 55 434 APPENDIX. III. NOTICE IN CASES OF GUARANTY AND SURETYSHIP. Lent v. Padelfokd. In the Supreme Judicial Court of Massachusetts. (Reported 10 Mass. 230.) Where matters axe equally known to botli plaintiff and defendant, no notice of sucli matters need be given. Where the undertaking of the defendant is for the performance of an act by a third person. Seld, that plaintiff need not ^ve notice of such performance. The defendant's promise of guarranty was made in consideration of a future performance on the part of the plaintiff. ' Held, that the fact of performance on the part of the plaintiff, was a suiBcient assent to the contract; that no recip- rocal promise by such plaintiff was necessary. The facts in this case are as follows : Lent had issued an execution against one Barney, which was in the Lands of the sheriff. In order to obtain time, Padelford executed the fol- lowing instrument : " Whereas, there is now on execution in the hands of Theodore Hinsdale, Jr., deputy sheriff, in favor of James W. Lent, and William H. Folger, against Joseph Barney, for the sum of seven hundred and ninety-five dollars seventy-four cents, and it cannot now be paid by said Bar- ney ; therefore, if said execution can be delayed till the first Monday of June next, and in consideration of value received of said Barney, I hereby agree and promise that said Barney shall make his appearance and be ready at Pittsfield, in the county of Berkshire, at the house of Joseph Merrick, either to pay said execution, or to surrender himself to any officer who may have the same at that time ; or I will pay the same, with the interest from this time, to said Lent and Folger. Savoy, February 23d, 1809. And further, I reserve to myself the right to go after said Barney, if he goes out of the state, and to deliver him at the place above mentioned, on the fourth Monday of June aforesaid." Manley Padelford. APPENDIX. 435 Lent T. Padelford. The plaintiffs averred that, confiding in the defendant's said promise, the service of said execution was delayed, &c., and no service was ever made upon it : that said Bar- ney did not make his appearance, &c. : that said Hinsdale \\as ready at the time and place to receive payment, or to take the body of said Barney, from said Padelford, but that he was not produced j that the defendant has never in any man- ner discharged said execution, or paid said interest, though requested. The plaintiffs had a verdict. The defendants made a motion in arrest of judgment, on two grounds ; 1st, that the declaration was insuiBcient in not showing any promise or agreement by the plaintiff, as a consideration for the promise of the defendant ; and 2d, that it did not con- tain an averment of notice to the defendant, of the failure of Harney to appear at the time stipulated for in the agreement, or of any request to pay this money demanded, before suit was brought HuLBEET, for Plaintiff. Dewey & Noble, for Defendant. Jackson, J. The court have heard both these motions together, for the convenience of the parties, and to prevent delay. The first point to be considered, in the motion for a new trial, is the supposed variance between the declaration and the writing produced in evidence. It is never neces- sary to declare in the precise words of a written promise. It is always allowable, and often necessary, to declare accord- ino- to their legal effect and import. In the present case, we have no doubt that the promises contained in the writing were made to the plaintiffs. They are the only persons inter- ested in the subject of the promises, which do not purport to be made to any other person ; and the defendant expressly promises, in the event which has happened, to pay the money to the plaintiffs. It is like the case of a common promissory note. The words of the note are, " For value received, I promise to pay A. B. : " but in the declaration upon such a note, it is always alleged that the defendant promised A. B. 436 APPENDIX. Lent V. Padelford. to pay him. As to the other supposed variance, we are equally satisfied that the declaration comports with the legal efiect of the writing. The expression, " if the execution can be delayed," as in- troduced in this paper, is equivalent to saying, " if you will delay it," or, " in consideration that you will delay it." The next ground of the motion for a new trial is the sup- posed misdirection of the judge in instructing the jury that the contract was sufficient in law to support the action. We are all satisfied that the direction was right. We have already said that the contract was made with the plaintiffs ; and indeed, it further appears from the report, that it was made by the express authority of their agent. Even if the agent had no previous authority to make this contract for the plaintiffs, yet if the agent proceeds immediately to exe- cute the contract, in any part beneficial to the defendant, or prejudicial to the plaintiffs, and if the plaintiffs afterwards assent to it, and go on further in performance of the con- tract, it shall bind both parties. As to the consideration, there is no necessity of deciding, on this o casion, whether it must always be expressed in the writing, according to the opinion in the case of Wain v. Walters, because this power does sufficiently express the consideration. It does not ap- pear whether it was of any benefit to the defendant ; but it was a prejudice to the plaintiffs, viz., suspending the service of the execution from February to June. It cannot be sup- posed that, in such a case, the writing should show that the whole consideration wa« executed on the part of the plain- tiffs. That is obviously impossible in every case where the consideration is a forbearance until a future day. But it is said that it does not appear, in this writing, that the plain- tiffs agreed to forbear their remedy until June. We know of no rule that requires the contract of the plain- tiffs in this case to be contained in the same paper which contains that of the defendant, nor even that the former should be reduced to writing at all. The statute of frauds, in its most strict construction, would require only the mo- APPENDIX. 437 Lent V. Padelford. tive, cause, or consideration of the promise to be expressed, so that the court could judge of its sufficiency ; not that the same paper should also contain the evidence of the per- formance, delivery, or receipt, of the thing upon which the promise is founded. It is enough, if the court can decide, upon inspection of the paper, that the consideration is suffi- cient in law ; it is a question for. the jury, whether that consideration has been in fact performed or received. It appears in this case that the plaintiffs, by their agent, did authorize and assent to this contract, and that they have performed it, on their part. As this agreement of the plain- tiffs is not required to be made in writing, it may of course be proved by parol testimony. As to the amount of dama- ges, we are satisfied that the jury were rightly instructed by the judge. This is not merely an agreement by the de- fendant to do a collateral thing ; nor is the money to be paid by way of penalty for a breach of the contract. We do not consider the damages thus liquidated by the parties, to be unreasonable in the event which was contemplated, and which has since occurred. The defendant has agreed, in a certain event, to pay this sum ; and we have no power, in this case, to alter his agreement. There are two grounds of the motion in arrest of judgment. The first is, that no sufficient consideration for the defendant's promise is set forth in the declaration. The declaration states, that in con- sideration that the plaintiffs would delay the service of their execution, the defendant promised ; and then it is averred that the plaintiffs did delay the service according- ly. This appears to us sufficient. It is the usual mode of declaring in such case in the boolis of entries. This man- ner of stating the consideration, and the contract, is not con- fined to cases of forbearance. It is not uncommon, in the case of goods sold, to declare that, in consideration that the plaintiff would sell and deliver to the defendant such goods, the latter promises to pay a certain price, and then to aver that he did sell, and deliver accordingly, so, in considera- tion that the plaintiff would do any other specific thing, andi 438 APPENDIX. Lent T. Padelford. then aver the pei-formance, without alleging that the plain- tiff had promised to do it. This is not one of the cases in which it is -necessary to state in the declaration mutual promises, as the consideration of each other. The other ground of the motion in arrest of judgment at first excited the most doubt in the minds of the court. It is the want of averring notice to the defendant that the said Barney did not appear at the time and place prescribed, and a special request to the defendant to pay the money. But upon fur- ther consideration, we are satisfied that the declaration is in this respect siifHoient. The general rule is perfectly well settled. When the matter alleged lies peculiarly in the knowledge of the plaintiff, he must aver that the defendant had notice ; but when it lies equally in the knowledge of the defendant, such averment is unnecessary. The case at bar comes within the latter branch of the rule. There was no act to be done exclusively by the plaintiffs. It may even be said that the matter, by which the defendant was to be discharged, was an act to be performed by himself. He promises that Barney shall make his appearance ; he under- takes to have him at a day and place certain, and he must know whether he has done so. But without going to this length, it is sufiicietit, if the act were to be done by a stran- ger. The defendant had as good means of information as the plaintiffs, and he was bound to take notice whether Bar- ney made his appearance at the time and place appointed. It was not necessai'y, then, for the plaintiffs to give him for- mal notice of the fact ; and of course it is not necessary to aver such notice in the declaration. As to the want of averring, a special request, we shall yield with difficulty to such an objection, after a verdict on the merits of the case. The only use of a special request is to avoid vexatious suits, by giving to the defendant an opportunity of paying an un- disputed demand. It is apparent in the case before us, that it would have been a fruitless ceremony. We are not, how- ever, satisfied that such a request was required by the strict- est rules of law. The defendant may be considered as APPENDIX. 40!^ Lent V. Padelford. to do, or cause to be done, one of two things. When he knew that the one was not performed, he became immediately liable to perform the other. The payment of the money became a present duty, as if there had been no alternative in the original contract. In such a case, the general averment of licet scepius requisit'us is suflScient. Judgment on the verdict. 440 APPENDIX. IV. DISCHARGE O'F SURETY. Remsen v. Beekman. In me Court of Appeals, State of New York, (Reported 25 N. Y. 11 Smith, 552.) The creditor was requested by a surety, to prosecute the principal debtor, which he failed to do, Held,, that such neglect discharged the surety, irre- speotiye of knowledge or notice to the creditor of any facts suggesting the probability that delay could proye injurious to such surety. A surety, by aa arrangement between the principal debtor and himself, as- sumed the primary hability. Seld, that he might by subsequent arrangements with third parties re-establish himself in the position, and with the rights of a surety. Meld, farther, that this might be done, without the consent of the creditor. Appeal from the judgment of the Supreme Court, af- firming a judgment i-endei'«d on the report of Addison Gardner, Esq., Referee, in favor of the respondent. This was a foreclosure action, brought, upim a mortgage given by one Penfield, in August, 1835, to secure $25,000, payal)le Octol)er 5th, 1840 ; a judgment, for the amount of any deficiency that might arise upon the sale of the mort- gaged premises, was prayed for against the executrix of one Beekman. When the mortgage was given, Penfield was indebted to one Remsen (to whose right the plaintiff had succeeded) in the sum of $25,000 ; interest was due upon this sum at the rate of $1,600 per j-ear, from Oct. 5th, 1834. To secure this debt, Penfield had given a mortgage as above, upon 888 acres of land. The mortgage debt was subsequently reduced to $15,000, and one Livingston, having become owner of part of the mortgaged property, applied to the mortgagee to release all except about eight acres ; there being a valuabe flouring mill upon such eight acres, reserved* Remsen re- quired Livingston's bcmd, as a consideration of such release, conditioned for the payment of the $15,000 in three years, APPENDIX. 441 Remsen v. Beekman. fi-om the 25th of May, 1843. This bond was guaranteed hy Beekman (the defendaut's testator.) Livingston subsequently conveyed the mortgaged pre- mises to Beekman '■ subject to the lieu of the mortgage, and deducting the amount thereof from the consideration paid or allowed from said premises." Beekman and Livingston were largely indebted to a bank at Rochester, and to three banks in Connecticut. In the latter part of 1846, an arrangement was made between the parties, by which, on the 31st of December, 1846, Beek- man and wife couveyed the mortgaged premises subject to the mortgage, with other property, to Goodwin, Ferry and Beach, who were officers of the above mentioned banks, as trustees, upon trust to sell the same and divide the proceeds between the four banks in proportion to their debts. The debts of Livingston and Beekman with regard to the said banks, were cancelled by this transaction. One Lester be- come the agent of these trustees for the management of the mortgaged property. On the 11th of February, 1847, the trustees sold and conveyed the property to one Miller for $25,000, taking from him a mortgage for the whole of the purchase money, and agreeing to indemnify him against the $15,000 mortgage of the plaintiflF. Mailer paid $7,500 on his morto-age, and after default the trustees foreclosed the mortgage, and acquired the property. Soon after Beekman made the conveyance to the trustees as above, he requested the plaintiff to collect his debt by enforcing the mortgage against the property. Beekman at the same time informed the plaintiff that he had sold such premises, subject the mortgage ; whereupon the plaintiff wrote to Lester (the agent of the trustees) requesting pay- ment. Lester in reply, assured the plaintiff, that by reason of the position in which the banks stood to the property in ques- tion, the debt was entirely secure, even without reference to the mortgaged property. The plaintiff collected the annual interest from Lester until the fall of 1857, when he being in default, this suit was 56 442 APPENDIX. Remsen v. Beekman. commenced. The forbearance on the part of the plaintiff was " against the wish expressed" of Beekman. The prem- ises in question had cost $40,000, and during the years 1847, 1848 and 1849, were worth from $25,000 to $30,000, and at any time up to 1853 they would have sold for more than enough to cover the plaintiff's mortgage. The referee found as matter of fact that if the plaintiff, at any time within three years after Beekman's request to him to collect the debt, had insisted upou' its payment, the trustees, or banks in whose behalf they acted, would, upon reasonable notice, have paid it voluntarily without suit. At the time of the trial the mortgaged debt with interest amounted to more than $18,000, and the property was not worth more than $5,000. The referee decided that after the conveyance by Beekman to the trustees, the mortgaged pre- mises became the primary fund for the payment of the debt, and Beekman stood in the relation of surety ; and that the refusal or neglect of the plaintiff to collect his debt from the property or trustees after Beekman's request to that effect, and his continuing the loan for ten years against the decided wishes of Beekman, discharged the latter from his obligation from the debt. E. P. Smith, for appellant. Wm. M. Evarts, for respondent. Weight, J. Whatever may have been the current of decision elsewhere, the principle was settled in this state more than forty years ago, and has since been steadily main- tained, that if a suret}-^ request the creditor to collect the debt from the principal, and the creditor refuse or neglect to do so at a time when it is collectible, and from a subse- quent change of circumstances it becomes uncollectible, the sui-ety is by such conduct of the creditor, exonerated from his liability. {King v. Baldwin, 17 John., 383 ; Paine v. Packard, 13 John., 174. It is not contended that it makes any d ifference in the rule, or in the application of the prin- APPENDIX. 443 Remsen v. BeeTcman. ciples oil which it is founded, that the principal to which the creditor refuses or neglects to resort when he should, is a fund or property primarily liable for the debt in exoneration of the surety instead of being a person so primarily liable. It is urged, however, that the case of King v. Baldwin, de- cided in the Court of Errors, in 1819, in which the rule was distinctly settled, has been uniformly repudiated in this state as unsound in principle. I do not so understand the course of decision, but on the contrary when the facts have brought the case under review within the rule, it has been uniformly maintained. {Manchester Iron Manuf. Co. v. Sweeting, 10 Wend. , 397 ; .Hoffman v. Hulburt, 12 Wend., 377.) I am aware that there are a dicta of one or two judges condemning the rule as unsound in cases where its application was not necessary to these decisions, and where indeed the facts did not justify its application. {Warner V. Beardslee, 8 Wend., 198, per Walwokth, Chancellor ; Heiiich V. Borst, 4 Hill, 650, per Cowen, J.) Even in these cases, however, it was conceded that the rule was too firmly established to be overturned, that when the principal was peifectly responsible at the time the debt became due, and the creditor, although requested by the surety, refused to proceed and collect his debt until the principal became insol- vent, the surety would be exonerated from liability. For myself, were it an original question in a court of equity, I should entertain no doubt of the soundness of the rule. The surety is a guarantee that the principal shall pay the debt, and the creditor is under an equitable obligation to collect his debt from the principal in the first instance if he can. It is conceded that a court of equity, at the instance of the surety, may compel the creditor to coerce payment from a solvent principal, but this could not be so if there were no moral or equitable duty on the part of the creditor to collect the debt from the principal, or it were not unjust and unconscientious to throw the debt on the guarantor and not on the party primarily liable. It is not in accordance with the intention of the parties that the surety should pay 444 APPEXDIX. Remsen y. Beehman. the debt in the first instance, and it is but just that it should be collected from the party or fund primarily liable, if the party have the ability to pay, or the fund be adequate for the purpose, and not from the guarantor. It may be con- ceded that there is no positive duty incumbent on the credi- tor to prosecute measures of active diligence ; and hence mere delay unaccompanied by any valid contract (if some other equity does not interfere) will not amount to laches, so as to work a discharge of the surety. If, however, the creditor does any act injurious to the surety or inconsistent with his rights, or omits to do any act when required by the surety-, which his duty enjoins him to do, and which proves injurious to the surety, the latter may set up such conduct as a defence to any action brought, at least in equity, against him. It will not be pretended that, if the creditor actually col- lude with the principal to cast the debt on the surety, the latter is not exonerated : so also if, by omitting to do an act, on the requirement of the surety, which equity and his duty to the surety enjoins on him to do, the suretj"^ is injured by the omission, the latter ought not to be held. It is in- equitable and unjust that the surety's liability should con- tinue from improper motives, at the option and for the con- venience of the creditor, and against the surety's will and express wish, until the principal becomes irresponsible. Duty enjoins the creditor to enforce payment from the party primarily liable ; and if requested by the surety to collect the debt when it is collectible from such party by measures of active diligence, and the creditor refuses or neglects to do it until it becomes uncollectible from the principal, such conduct ought to be a defence in equity to any suit brought against the surety to charge him with the payment of the debt. Eegarding Beekman as the surety, the present case aptly illustrates the justice and equity of the rule. In 1847 the plaintiff had a debt of $15,000 past due, secured by a mortgage on land worth from |25,000 to $30,000, or double the amount of such debt. The mortgaged premises were APPENDIX. 445 Revisen v. BeeJcman. primarily liable for the debt, iu exoneration of Beekman, the surety. Beekman, in 1847, conveyed the premises, subject to the mortgage, to the trustees of four banks, and shortly after the conveyance applied to the plaintiff and requested him to enforce the mortgage against the premises for the purpose of collecting the mortgage debt, and at the same time informing him of his sale and conveyance of the premises subject to the mortgage. In pursuance of such re- quest the plaintiff wrote to the agent of the trustees requir- ing payment of the sum secured by the mortgage, but up- on representations made by such agent of the entire security of the debt, even without reference to the value of the property, he neglected and declined to enforce the mort- gage or to collect the same out of the premises, but on the contrary determined to continue the loan of the money se- cured by the mortgage, against the express wishes of Beek- man, for the convenience of the trustees and the banks whom they represented, in one of which the plaintiff was a stockholder. No steps were taken to collect the debt until 1857, and after the trustees refused to pay the annual inter- est, though for three years succeeding Beekman's request to the plaintiff, the mortgaged premises were worth $10,000 to $15,000 more than the debt, and up to 1853 would have sold for more than enough to pay the amount of the mort- gage. Afterwards, and when the fund primarily liable has depreciated in value to less than one-third of the debt, the ' creditor proceeds to collect it by foreclosure and sale of the mortgaged premises, and asks that the estate of the surety may be adjudged liable to pay the deficiency. It is very plain to me that a creditor, who disregards an express re- quest made by a surety to proceed and collect his debt at a time when it is collectible, and from improper motives wil- fully or negligently omits a duty to the surety enjoined on him in this respect, until the debt is uncollectible from the principal, has no equitable rights to be enforced against the surety. In this case, when the primary fund for the pay- ment of the debt was ample, when urged by the surety to 446 APPENDIX. Remsen t. Beehman. collect it, and for years afterwards, the creditor chose to let his loan lie, against the quasi surety's expressed wish, because he considered it an advantageous mortgage invest- ment, until the fund primarily liable for the debt has de- preciated to a sum less than one-third of such debt, it would be wholly inequitable to charge a deficiency upon the surety caused jiurely by the creditor's own conduct. The plaintiff refused to comply with the request of Beekman for the rea- son that he wished to continue the loan, showing by his conduct that he did not rely upon the surety. There would be no equity in allowing him to call upon the surety when it is apparent that if he had complied with his request, he would have secured his debt. This is not an action upon Livingston's bond or Beek- mau's guaranty of such bond, but the creditor asks the aid of a court of equity to enable him to enforce the payment of his debt. The rule before stated not being founded up- on contract between the surety and the creditor, but upon a principle of equity obliging the creditor to act justly to- wards the surety, when the creditor seeks relief in a court of equity, if his case falls within the rule, it is proper that it should be applied to it. Here, at least, the surety has the right to demand that the creditor neither do, nor omit to do any act enjoined on him as an equitable duty which injures the surety against his express wish or request. The present presents a very clear and strong case for the appli- cation of the rule. It is said that there is the absence of any notice of facts from which the plaintiff could have sup- posed that delay was likely to prove injurious to Beekman. But this can make no difference. Besides the mortgaged premises were a flouring mill and its appurtenances, subject to depreciation in value by fluctuations in the business to which alone the property was adapted, and by the wear and destruction of its machinery and appendages. These things were doubtless understood by the plaintiff, and after the representations made to him by the agent of the trustees, that the debt was perfectly secure without reference to the APPENDIX. 447 Eetnsen v. Beehman. mortgaged premises, he gave no heed to their value or their depreciation. lu his letter to the agent of the banks hold- ing the premises in November, 1857, after setting forth the agent's representations in 1847, he distinctly declared that those representations as to perfect security had been his sole inducement against the wish expressed of Beekman and the mortgagor, to continue the loan since the conveyance by Beekman. The point is made that the obligation of Beekman was not one of suretyship ; but that after he took the conveyance of the land from Livingston charged with the debt, and re- sumed the administration of the fund so charged, his situa- tion was precisely the same as if he had then, as an original transaction, borrowed the $15,000 from the plaintiff and mortgaged his own land as security. The ground, I think, is not maintainable. Beekman was a surety in fact as well as in form, and it was in that character that the plaintiff sought to charge his estate. Penfield was the original debt- or, and the mortgage was given to secure his debt. He was personally liable for the debt unless the subsequent dealing of the plaintiff relieved him from the liability. Livingston became the owner of some eight acres of the mortgaged premises on which the mill was situated, at a time when the debt had been reduced to $15,000 and applied to the plain- tiff to release all the land covered by the mortgage except the eiffht acres of which he was the owner. This the mort- gagee consented to do, upon the condition that Livingston would give him his bond conditioned for the payment of the amount unpaid of the mortgage debt in three years, and that Beekman should guarantee such bond. Accordingly, Livino-ston gave the bond required, and Beekman guaran- teed it. This was in 1843, after the mortgage debt was due, and it was under this guaranty of Livingston's bond that the only personal liability of Beekman for the mort- gage debt ever existed. Livingston, in 1846, conveyed the mortgaged premises to. Beekman, subject to the mortgage, and he deducted the amount thereof from the consideration 448 APPENDIX. Bemsen v. Beehman. allowed for the premises, but this created no personal lia- bility of Beekmaii for the mortgage debt. {Belmont v. Co- man, 22 N. Y., 438.) The only eflfect of the transaction was, as between Beekman and Livingston, to constitute the mortgaged premises held by Beekman under the convey- ance, the primary fund for the payment of the mortgaged debt. The taking of the conveyance, such as it was, did not render Beekman personally liable as a principal debtor. But if he did thereby become personally liable for the debt, such obligation was not by any contract with the mortgagee ; and the mortgagee has a right to lay hold of, for his own benefit, a contract thus made between Beekman and Living- ston, and enforce it, only as such an obligation, as it truly and equitably is. In substance and equity, Beekman stood in the position of surety to the plaintiff for the mortgage debt. I entertain no doubt that the sole personal liability of Beekman was upon his covenant of guaranty ; but if this were otherwise, it is clear that after the conveyance of the property to the trustees, subject to the mortgage, he stood in substance and in equity in the position of a surety, the property in the hands of the grantees constituting the primary fund for the payment of the debt. {Marsh v. Pike, 10 Paige, 595 ; Russell v. Pistor, 3 Seld., 171.) The judgment of the Supreme Court should be affirmed. Gould, J. The only possible liability of Mrs. Beekman, as executrix, is on the guaranty. And that is the undertak- ing of a surety. In this state it is to, late to question the principal of ^mp'v. Baldwin, (17 John.,) that where a surety requests the creditor to proceed to enforce collection from the principal debtor, and the creditor neglects to do so, and the principal debtor thei-eafter becomes unable to pay, the loss thereby incurred, falls on the creditor, and not on the surety. Seldon, J., did not sit in the case ; all the other judges concurrmg. Judgment affirmed. APPENDIX. 449 V. Bank of Steubenville v. Leavitt. In the Supreme Court of Ohio. (Reported 5 Hammond, 207.) _ Every act or agreement by whioh the right of the creditor to proceed against his principal is delayed or suspended, works a discharge of the sui-ety. It will be a defence as -ff-ell at law as in equity. The defendauts' intestate, executed a bond to the plaintiffs, conditioned for the payment of $1,450; upon default being made, this action was commenced. The defendant pleaded that the bond in question was made by the intestate as surety for one J. C, and not as principal. That the plaintiffs had notice of the fact, when the bond was executed, and that afterwards they had accepted a confession of judgment from the principal for the amount of the debt, with an agreement for stay of execution for eighteen months. A general demur- rer was interposed to this plea. Br THE CouKT. He who becomes surety for another, has a right to pay the debt when it becomes due, and collect it from his principal. He may substitute himself in place of the creditor, and subject any funds or securities provided for the payment of the debt by the principal, or he may call upon the creditor to prosecute his suit'without delay. The law does not permit the creditor to interfere with these rights. If he do invade them, the surety is held to be dis- charged. No principal is better settled at the present day, than that a surety cannot be further bound than by the terms of his undertaking. These terms cannot be changed without his consent. If any change is made that might prejudice his rights, without his consent, he is protected by holding his obligation at an end. A simple omission on the part of the creditor to. pursue this remedy is not considered as affecting 57 450 APPENDIX. Banh of Steubenville v. Leavitt. the rights of either party. But any act which destroys or suspends the rights, to an instant and continuing pursuit of the remedy, so that the surety cannbt enforce the collection of the debt without delay, absolves him from his liability. The defence which such an act gives to the surety, is one proper to be set up in a court of law. The doctrine is ori- ginally of chancery, and is of recent introduction there. Its adoption in the courts of law is almost within our own times (4 Cam. C. 336) and it prevails in either court, according to the circumstances of the case. The authorities upon which it rests are very numerous : (7 John. 336 ; 12 John. 174; 17 John. 384 ; 2 Merivale, 276 ; 4 John. Ch. 7, 337 ; 2 Marsh. 82, 392 ; 2 Ves. Jr. 550 ; 4 Ves. 737 ; 1 Gal. 32 ; 1 Mass. 339 ; 1 Paine, 305 ; 3 Wash. C. C. 7 ; 4 Wash. C. C. 26 ; 2 Band. 333 ; 12 Wheat. 556). In the case in 2 Eand., the court lays down the doctrine broadly : " If a creditor by agreement with the principal debtor, or by any other act, precludes himself at law from proceeding against the principal, after the debt is due for a moment, or if the agreement is such that a court of equity would stay proceedings at law, the surety is dischai-ged." Here is a judgment, with a stay of execution, entered of record. This ties up the creditor's lands. If the surety were to pay the debt, he could do nothing with the judgment until the stay of execution expired. The consideration upon which the stay of execution was entered, is not a matter for investigation. The fact that it is entered, suspends the cre- ditor's right to sue execution until the entry is avoided. That it is sufficient to discharge the surety. It is objected to the plea, that it does not sufficiently aver, that the stay of execution was entered, without the consent of the surety. The want ot this consent is the material fact of the whole defence. We therefore think that the plea is defective. But leave is given to amend. APPENDIX. 451 VI. PAYMENT BY SURETY. Gaee v. Martin. In the Court of Appeals, State of JSFew York. (Reported 20 New York (6 Smith) 306.) A judgment -n-as recovered against A. B. his surety paid the judgment A. subsequently prosecuted a writ of error, and obtained a reversal. B. com- menced an action against the plaintiflf, to vrhom he had paid the judgment, to recover back the money paid. Held, that the action was not well brought ; the remedy of the surety in such a ease, is against his principal. ■When one person advances money for another, in payment of the debt of the latter, it is deemed at the instant of its payment, to be the money of the party for whose benefit the payment is made ; so that in the eyes of the law the debt is satisfied, not by the money of a third party, but by that of the debt- or himself. The facts in this case were as follows. Garr sued as assignee of one Patten, for money had and received by one Martin, to the use of Patten, under the followins: circum- stances. Martin obtained a judgment in the Superior Court of New York city, against one Kanouse ; Kanouse sued out a writ of error to the Supreme Court, and he with Patten as his surety, executed a joint and several bond conditioned among other things, for paying the judgment and costs, in case of affirmance. The Supreme Court affirmed the judgment below ; and Patten, after an action had been brought upon the bond, paid the original judgment, with the costs of the suit in error. Subsequently Kanouse brought error to the Supreme Court of the United States, whereupon the judgment ren- dered in the Supreme Court of New York was reversed, and the cause being remanded, the original judgment was reversed. Garr claimed, upon the above facts, to recover back the money paid by Patten, the demand having been assigned to him. A demurrer was interposed by Martin, which was overruled, and judgment ordered for the plaintiff. 452 APPENDIX. Oarr t. Martin. The general term having affirmed such judgment, the defendant appealed to this court. Selden, J. The law, no doubt, will imply a promise to refund money paid upon a judgment which has been subse- quently reversed ; but the question here is whether, in a case like this, the implication arises in favor of the surety who paid the money, or of the principal for whose benefit it was paid, and whose debt it went to discharge. This question is not without difficulty. It is insisted by the appellant, and as I think justly, that no privity existed between Patten, the surety, and the plaintiff in the judgment : and hence, that no implied promise can arise between them. The execution by Patten of his bond to Martin, did not, in my judgment, create any legal privity between the parties ; not, as urged by the appellant, for the reason that the bond was statutory, aud therefore not voluntary, but because Pat- ten was a mere surety, acting not for himself, but for and in behalf of his principal, between whom alone, and the plain- tiff in the judgment, did any actual legal privity exist. This will be rendered more apparent, by a consideration of the relations of the parties, and the necessary consequences of their acts. As the money, when paid, went to discharge what was then the debt of Kanouse, it would seem that at the moment of its application it must have been the money of Kanouse. But let us suppose the contrary, and that the money is deemed to have been paid as the money of Patten, the surety, and consequently, that when the judgment was reversed, a cause of action arose in favor of Patten to recover it back. What effect would a subsequent re-payment of the money by Kanouse to Patten have upon this cause of action? It could not, of course, continue in favor of Patten. It must either be extinguished, or transferred to, or in some way vested in Kanouse^ But, how could it become vested in the latter? The law upon our supposition has previously im- plied, that the money was had and received by the plaintiff APPENDIX. 453 Garr v. Martin. in the judgment, to the use of Patten, the surety. Will it now, after the reimbursement of the surety by his principal, raise a second implication in favor of the latter, that it was had and received to his use? I apprehend not ; there can be but one such implication, and that must be in favor of the jjarty to whom the money is decreed legally to belong, at the instant of its payment. If this be so, then a supposition, which leads to the concluson, that a principal cannot under such circumstances fulfil his own obligations, by reimburs- ing his surety, without losing all power of obtaining restitu- tion, must be erroneous. Again, it is clear, that the payment of the money by Patten to the plaintiff in the judgment, operated eo insianti, to create a valid demand in favor of Petten, the surety, against Kanouse, the principal, for the amount so paid. What effect, then, had the reversal of the judgment upon this demand? It certanly could not extinguish the claim of the surety against his pi'incipal, for the money advanced. Nothing short of re-payment, or satisfaction obtained in some way, could do that. Patten's cause of action against Kanouse, therefore, must have continued, notwithstanding the rever- sal of the judgment. But upon the theory of the plaintiff here, he acquired also by the reversal a cause of action against the plaintiff in the judgment. If so, then Patten from the time of the reversal, supposing that he had not been already paid, had a double remedy for the money he had advanced ; one against Kanouse, and the other against Martin, the plaiutiff in the judgment ; and might, of course, have brought and prosecuted suit against each at the same time. To maintain the suit against Kanouse, it would be necessary to allege and show that the money had been paid for his use and benefit ; while to maintain that against Mar- tin, it must appear that it was received by him for the use and benefit of the plaintiff. Patten ; and the courts would be called upon to render these two inconsistent judgments, in reo-ard to the same identical transaction, if the theory of the plaintiff is sound. 454 APPENDIX, Oarr v. Martin. These are some of the incongruities which stand in the way of the plaintiff's recovery. But if, on the other hand, we take the opposite ground, the case is simple and free from all complication. The surety must look to his prici- pal, for whom he has consented to advalice the money and on whose credit alone he has acted ; and the principal only can obtain restitution. The difficulty is solved by assuming this principle, which I am inclined to think is sound, viz : that where one person advances money for another, in payment of the debt of the latter, it is deemed at the instant of its payment, to be the money of the party for whose benefit the payment is made ; so that in the eye of the law the debt is satisfied, not by the money of a third party, but by that of the debtor himself. How can the money of A discharge the debt of B? Could B, if sued for the debt, plead payment by A? Clearly not ; he must plead that he himself has paid. If A pay the money without the request of B, either express or implied, A acquires no right of action against B, and the debt is not thereby discharged ; although a subsequent assent on the part of B might give effect to such payment. If the three were together, and A should hand the money to B, who should instantly hand it to the creditor, there would be no doubt that it was the money of B, when applied upon his debt. But suppose, instead of passing the money through the hands of B, A, at his request, gives it to the creditor, is it not the same in legal effect? Is it not still B's money which pays B's debt? I think it is, and that A must look exclusively to B for reimbursement, as much in the one case in the other— whatever may occur in regard to the debt, as between B and the creditor. The case here is the same as if the money had been paid at the special request of Kanouse ; because it is well settled' that where one pays money as surety for another, the law implies a request. {Exall V. Partridge, 8 Te7-in R., 308 ; Pownal v. Ferrand, 6 Barn & Ores., 439 ; Biitler v. Wright, 20 John., 367.) There can be no better test of what has been said, than to APPENDIX. 455 Garr y. Martin. -nquii-e, whether at common law a declaration for money .ent, could have been maintained by Patten against Kanouse ; and as to that, I entertain no doubt. In Butcher v. Andrews (1 SalJc., 23), the plaintiff had delivered money to a son at the request of the father. He brought an action against the father, and declared for money lent to the son. This was held bad. The court said the same money could not be "lent to two," plainly implying, that the declaration should have been for money lent to the father. So in Harriot v. lAnter (2 Wils., 141), when the declaration ■was for money " lent and advanced by the plaintiff to James Dalrymple, at the special instance and request of the defend- ant," the court held, that if the money was lent to James Dal- rymple, it could not have been lent to the defendant, and gave judgment against the plaintiff. The inference is, that the plain- tiff ought to have declared for money lent to the defendant. The case of Ball v. Sibbs (8 Term R., 328), shows very clearly, how this question would then have been regarded by court of King's bench. The action was brought to recover for the use of certain lands, which the plaintiff, at the defend- ant's request had permitted one Ditchell to occupy. The court, by way of illustration, say : " When goods sold, are by order of the vendee delivered to a third person, an ac- tion may be maintained, on the common counts, as for goods sold and delivered to the vendee himself ; though, in prac- tice, it is generally stated, that the goods were delivered to such third party, at the request of the vendee." The case here put is parallel to ours, and depends upon the same considerations. It can make no difference, whether the thing delivered is goods or money. Where the contract is with one and the delivery to another, it is not necessary in pleading to notice the latter; although, as the court said, in Bull V. Sibbs, in respect to goods sold, " in practice," where money is delivered to a third person, at the request of another, in payment of a del)t of the latter, it has been usual to declare for so much money paid to the person receiving it, for the use of the party making the request. 456 APPENDIX. Garr v. Martin. That the title passes iu every such case directly to the latter, in the first instance, and that the money is in fact lent to him, is evident. If instead of being paid upon a debt, the money is received by the third party upon some trust, for the benefit of the party requesting the delivery, then of necessity the title must pass to the latter. It is equally plain, that it must do so when the third party has agreed to repay the money to the party at whose request it is delivered to him. The latter could in that case himself maintain an action for money lent ; and he could not lend another's money. What difterence can it make, that the money is delivered in payment of a debt of the party requesting such delivery? What has the person, who parts with his money in such a case, to do with the relations between the other two ? His contract is solely with one of those parties, and is the same, whatever may be the object for which the money is delivered. In each case he loans the money, and the title passes directly to the borrower. This must be so, as well where the request is implied, as in case of money paid by a surety, as where it is express. It thus appears, that the defendant derived his title to the money in question, not from Patten, but from Kanouse ; and, consequently, that when his right to the money was sub- verted by the reversal of the judgment, he could only be responsible to Kanouse, whose rights were thereby revived. The judgment of the Common Pleas, therefore, should be reversed, and judgment should be rendered for the defendant upon the demurrer. Judgment reversed. APPENDIX OF STATUTES. STATUTE 29 OAR. II, CAP. 3. Section 4. No action shall be brought whereby to charge any executor or administrator upon any special promise, to an- swer damages out of his own estate ; 2, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person ; 3, or to charge any person upon any agreement made upon considera- tion of marriage ; 4, or upon any contract or sale of lands, tenements, hereditaments, or any interest in or concerning them ; 5, or upon any agreement that is not to be performed within the space of one year from the making thereof; 6, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in wi-iting, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. STATUTE 9 GEO. IV, CAP. 14. Section 6. No action shall be brought whereby to charge any pei-son upon or by reason of any representation or assur- ance made or given concerning or relating to the character, conduct, credit, ability, trade or dealings of any other per- son, to the intent or purpose that such other persons may obtain credit, money, or goods upon, unless such represen- tation or assurance be made in writing, signed by the party to be charged therewith. MERCANTILE LAW AMENDMENT ACT, 19 AND 20 VIOT., 1856. 3. No special promise to be made by any person after the passing of this Act to answer for the debt, default, or mis- carriage of another person, being in writing, and signed by 68 458 APPENDIX. the party to be charged therewith or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by rea- son only that the consideration for such promise does not .ppear in writing, or by necessary inference from a writ- ten document. ALABAMA, — Code, 1852, §§1551, 1552, 1553, 2198. Section 1551. In the following cases every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and sub- scribed by the ^arty to be charged therewith, or some other person by him thereunto lawfully authorized in writing. 1. Every agreement, which by its terms, is not to be per- formed within one year from the making thereof. 2. Every special promise, by an executor, or administra- tor, to answer damages out of his own estate. 3. Every special promise to answer for the debt, default or miscarriage of another. 4. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to many. 5. Every contract for the sale of goods, chattels, or things in action, for a price exceeding two hundred dollars, unless the buyer accepts and receives part of such goods and chat- tels, or the evidences, or some of them, or such things in action : or unless the buyer at the time pay some part of the purchase money. 6. Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase-money, or a portion thereof, be paid, and the purchaser be put into possession of the land by the seller. § 1552. When goods or things in action, are sold, or lands, tenements, or hereditaments, sold or leased at public auction, and the auctioneer, his clerk, or agent, makes a memorandum of the property, and price thereof at which it APPENDIX. 459 is sold or leased, the terms of sale, the name of the pur- chaser, or lessee, and the name of the person on whose ac- count the sale or lease is made, such memorandum is a note of the contract within the meaning of the preceding section. § 1553. No action can be maintained to charge any per- son, by reason of any representation or assurance made, con- cerning the character, conduct, ability, trade, or dealings of any other person, when such action is brought by the per- son to whom such representation or assurance was made, unless the same is in writing, signed by the party sought to be charged. § 2198. A seal is not necessary to convey the legal title to land, to enable the grantee to sue at law, any instrument in writing, signed by the grantor or his agent, having a written authority, is effectual to transfer the legal title to the grantee, if such was the intention of the grantor, to be collected from the entire instrument. AKKANSAS — English's Digest, Chapter 73, § 1. Section 1. No action shall be brought, first, to charge any executor or administrator, upcm any special promise, to answer for any debt or damage out of his own estate ; second, to charge any person upon any special promise to answer for the debt, default, or miscarriage, of another ; third, to charge any person upon an agreement made in consideration of marriage ; fourth, to charge any person upon any con- tract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them ; fifth, to charge any per- son upon any lease of lands, tenements, or hereditaments, for a longer term than one year ; sixth, to charge any per- son, upon any contract, promise, or agreement, that is not to be performed within one year fi'om the making thereof ; unless the agreement, promise, or contract, upon which such action shall be brought, or some memorandum or note thereof shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized. 460 APPENDIX. CALIFORNIA— AoT op Apbil 19, 1850, Chapter 47, §§ 12, 13, 14, 19. Section 1 2. In the following cases, every agreement sliall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the paiiy charged therewith : 1. Every agree- ment that by the terms is not to be performed within one year from the making thereof. 2. Every special promise to answer for the debt, default, or miscarriage of another. 3. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. ^ 13. Every contract for the sale of any goods, chat- tels, or things in action, for the price of two hundred dollars or over, shall be void, unless, 1st., a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith ; or, 2nd, unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action ; or, 3d, luiless the buyer shall at the time pay some part of the purchase money. § 14. Whenever any goods shall be sold at auction, and the auctioneer shall, at the time of the sale, enter in a sale-book a memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made ; such memorandum shall be deemed a note of the contract of sale within the meaning of the last sec- tion. ^ 19. Every instrument required by any of the pro- visions of this chapter to be subscribed by any party, may be subscribed by the lawful agent of such party. CONNECTICUT— Revised Statutes, 1849, Title 19, § 1. Section 1. No suit at law or equity shall be brought or maintained upon any contract or agreement, whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate ; or whereby to charge the defendant upon any special promise, APPENDIX. 461 to answer for the debt, default, or miscarriage of another person ; or to charge any person upon any agreement made upon consideration of marriage ; or upon any contract for the sale of lands, tenements, or hereditanents, or any inter- est in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed, by the party to be charged therewith, or by some other person thereunto by him lawfully authorized. DELAWARE — Revised Code 1852, Chaptes 63, § 6. Section 6. No action shall be brought, whereby to charge any executor or administrator, upon any special promise to answer damages out of his own estate, or whereby to charge any defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person of the value of five dollars, and not exceeding twenty dollars, unless such promise and assumption shall be proved by the oath, or affirmation, of one credible witness, or some memorandum, or note in writing, shall be signed by the party to be charged therewith. FLORIDA — Thompson's Digest, 1847, Second Division, Tit. 4, Chap. 3, § 1. Section 1. No action shall be brought whereby to charge any executor or admhiistrator upon any special promise to answer or pay any debt or damages out of his own estate, or wherel^y to charge the defendant upon any special pro- mise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or of any uncer- tain interest in or concerning them, or for any lease thereof, for a longer term than one year, or upon any agreement that is not to be performed within one year from the making 462 APPENDIX. thereof, uuless the agreemeat or promise upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or. by some other person by him there- unto lawfully authorized. GEORGIA. [In this state the English Statute is in force : see also, T. E. Oohb's Kew Digest, Appendix III.] ILLINOIS — Revised Statutes, 1845, Chaptbb 44, § 1. Section 1. No action shall be brought whereby to charge any executor or administrator, upon any special promise to answer any debt, or damages out of his own estate, or where- by to charge the defendant upon any special promise to an- swer for the debt, default, or miscarriage of another person ; or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, for a longer term than one year ; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. INDIANA— Revised Statutes, 1852, Chaptbb 42, §§ 1, 2, 6. Section 1. No action shall be brought in any of the following cases: First. — To charge an executor or administrator, upon any special promise, to answer damages out of his own estate ; or Second. — To charge any person, upon any special promise, to answer for the debt, default, or miscarriage of another ; or Third. — To charge any person upon any agreement or promise made in consideration of marriage ; or Fourth. — Upon any contract for the sale of lands ; or Fifth.— X^T^on any agreement that is m% tp be performed APPENDIX. 463 ■within one year from the making thereof ; unless the pro- mise, contract, or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized ; excepting however, leases not exceeding the term of three years. ^ 2. The consideration of any such promise, contract or agreement need not be set forth in such writing, but may be proved. § 6. No action shall be maintained to charge anj' person by reason of any representation made concerning the char- acter, conduct, ciedit, ability, trade, or dealings of any other pei-son, unless such representation be made in writing and signed by the party to be charged thereby, or by some person thereunto by him legally authorized. IOWA — Code 1851, §§ 2409, 2410. § 2409. Except when otherwise specially provided, no evidence of any of the contracts enumerated in the next succeeding section is competent, imless it bo in writing and signed by the party charged, or by his lawfully authorized agent. § 2410. Such contracts embrace, First. — Those in relation to the sale of personal property, when no part of the property is delivered, and no part of the price is ))aid ; Second. — Those made in consideration of marriage, but not including promises to marry ; Third. — Those wherein one person promises to answer for the debt, default, or miscarriage of another, including pro- mises by executors to pay the debt of their principal from their own estate ; Fourth. — Those iov the creation or transfer of any interest in lands, except leases for a term not exceeding one year ; Fifth. — Those that are not to be performed within one year from the making thereof. 464 APPENDIX. KANSAS— Compiled Laws 1862, Chapter 102, § 5. Section 5. No aotioii shall be brought, whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person, or to charge any executor or administrator, upon any special promise, to answer damages out of his own estate, or to charge any per- son, upon any agreement made upon consideration of mar- riage, or upon any contract, or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or up- on any agreement, that is not to be performed within the space of one year from the making thereof, unless the agree- ment upon which such action shall be brought, or some mem- orandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. KENTUCKY — Rbviseb Statutes, 1852, Chaptee 22, §§ 1, 2. Section 1. No action shall be brought to charge any per- son, Firtit. For a representation or assurance concerning the character, conduct, credit, ability, trade, or dealings of an- other, made with intent that such other may obtain thereby credit, money, or goods ; nor Secondly. Upon a promise to pay a debt contracted during infancy, or a ratification of a contract or promise made during infancy ; noi* Thirdly. Upon a promise as personal representative to answer any debt or damage out of his own estate ; nor Fourthly. Upon a promise to answer for the debt, default, or miscarriage of another ; nor Fifthly. Upon any agreement made in consideration of marriage, except mutual promises to marry ; nor Sixthly. Upon any contract for the sale of real estate, or any lease thereof for a longer term than one year ; nor Seventhly. Upon any agreement which is not to be per- formed within one year from the making thereof ; unless the promise, contract, agreement, representation, assurance, or APPENDIX. 465 ratification, or some memorandum or note thereof be iu writing, and signed at the close thereof, by the party to be charged therewith, or by his authorized agent. But the consideration need not be expressed in the writing ; it may be proved when necessary, or disproved by parol or other evitlenee. ^ 2. A seal or scroll shall in no case be necessary to give effect to a deed or other writing, but a signature without seal shall have the same efficacy for every purpose, as if a seal was affixed thereto; and all writings so executed shall stand upon the same footing with sealed writings, having the same force and effect, and upon which the same actions may be founded. But this section shall not apply to an assign- ment by indorsement on a bond, note, or bill. MAINE — Rbvisbd Statutes 1840, Chaptee 136, §§ 1, 2, 3. Section 1. No action shall be brought and maintained in any of the following cases : First, to charge an executor or administrator, upon any special promise, to answer damages out of his own estate. Secondly. To charge any person, upon any special prom- ise, to answer for the debt, default, or misdoings of another. Thirdly. To charge any person, upon an agreement made in consideration of marriage. Fourthly. Upon any contract for the sale of lands, tene- ments, or hereditaments, or of any interest in or concerning them. Fifthly. Upon any agreement that is not to be performed within one year from the making thereof. Unless the prom- ise, contract, or agreenient, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and be signed by the party to be charged there- with, or by some person thereunto lawfully authorized. ^ 2. The consideration of any such promise, contract, or agreement, need not be set forth or expressed in the writing sjo-ned by the party to be charged therewith, but may be proved by any other legal evidence. 59 466 APPENCIX. § 3. No action shall be brought and maintained, to charge any person upon, or by reason of, any representation or assur- ance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such represen- tation or assurance shall be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. MARYLAND. [In this state the English Statute is in force ; see also Kilty's Keport of the English Statutes, page 242.] MASSACHUSETTS— General Statutes, I860, Pabt II., Titlb 6, Chapter 105. Section 1. No action shall be brought in any of the fol- lowing cases, that is to say : First. To charge an executor, or administrator or assignee under any insolvent law of this Commonwealth, upon a special promise to answer damages out of his own estate. Second. To charge any person upon any special promise to answer for the debt, default or misdoings of another. Third. Upon an agreement made upon consideration of marriage. Fourth. Upon any contract for the sale of lands, tene- ments, or hereditaments, or of any interest in or concerning them; or. Fifth. Upon any agreement that is not to be performed within one year from the making thereof; Unless the promise, contract or agreement upon which such action is brought, or some memorandum or jiote thereof is in writing, and signed by the party to be charged there- with, or by some person thereunto by him lawfully autho- rized. \ 2. The consideration of such promise, contract or agree- ment need not be set forth or expressed in the writing, signed by the party to be charged therewith, but may be proved by any other legal evidence. APPENDIX. 467 ^ 3. No promise for the payment of any debt made by an insolvent debtor, who has obtained his discharge from said debt under proceedings in bankruptcy or insolvency, shall be evidence of a new or continuing contract, whereby to deprive a party of the benefit of relying upon such discharge in bar of the recover}' of a judgment upon such debt, unless such promise is made by or contained in some writing signed by the party sought to be charged, or by some person there- unto by him lawfully authorized ; but this section shall not apply to such promise made prior to the fifteenth day of March, in the jear eighteen hundred and fifty-six. § 4. No action shall be brought to charge any person, upon or by reason of any representation or assurance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance is made in writing, and signed by the party to be charged thereby, or by some pei-sou thereunto by him law- fully authorized. lu the General Statutes chap. 3, sec. 7, clause 20, it is provided that in the construction of all statutes the words written and in writing, may include printing, engraving, lith- oo-raphino- and any other mode of representing words and letters ; but when the written signature of a person is required by law, it shall always be the proper handwriting of such person, or in case he is unable to write, his proper mark. MICHIGAN— Rbtisbd Statutes, 1846, Title 19, Chapter 81, §§ 2, 4, 5, 6. Section 2. In the following cases specified in this section every agreement, contract and promise, shall be void unless such agreement, contract or promise, or some note or memo^ randum thereof be In writing, and signed by the party to be charged therewith, or by some person by him thereunto law- fully authorized, that is to say : 1. Evei-y engagement that by its terras is not to be per- formed in one year from the making thereof. 2. Eveiy special promise to answer for the debt, default or misdoings of another person. 468 APPENDIX. 3. Every engagement, promise or undertaking made upon consideration of marriage, except mutual promises to marry. 4. Every special promise made by an executor or admin- istrator to answer damages out of his own estate. § 4. Whenever any goods shall be sold at auction, and the auctioneer «hall at the time of the sale, enter in a sale- book a memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the pur- chaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a memo- randum of the contract of sale, within the meaning of the last section. § 5. No action shall be brought to charge any person, upon or by reason of any favorable representation or assur- ance made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such represen- tation or assurance be made in writing, and signed by the party to be charged thereby or by some person thereunto by him lawfully authorized. § 6. The consideration of any contract, agreement or pro- mise required by this chapter to be in writing need not be expressed in the written contract, agreement or promise or in any note or memorandum thereof, but may be proved by any other legal evidence. MINNESOTA— Revised Statutes, 1866, Chapteb41, Title 2, §§ 6, 8. Section 6. No action shall be maintained in either of the following cases upon any agreement, unless such agreement or some note or memorandum thereof, expressing the con- sideration, is in writing, and subscribed by the party charged therewith. First. Every agreement that by its terms is not to l)e per- formed within one year from the making thereof ; Second. Every special promise to answer for the debt, default or doings of another ; Third. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. APPENDIX. 4G9 § 8. "Whenever goods are sold at public auction, and the auctioneer at the time of the sale, enters into a sale-book, a memorandum specifying the nature and price of the prop- erty sold, the terms of the sale, name of the purchaser, and the name of the person on whose account the sale is made ; such memorandum shall be deemed a note of the contract of sale within the meaning of the 7th section. MISSISSIPPI — Hutchinson's Codb, Chapters 4, 7, Abt. I, § 1. Section 1, No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer any debt or damage out of his own estate ; or where- by to charge the defendant upon any special promise, to answer for the debt, default, or miscarriage of another per- son, or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making any lease thereof for a longer term than one year, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action sh-all be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person, by him or her thereunto lawfully authorized. MISSOUKI — Revised Statutes, 1845, Chapter 68, §§ 5, 7. Section 5. No action shall be brought to charge any exe- cutor or admin istrstor, upon any special promise, to answer for any debt or damages out of his own estate, or to charge any person upon any special promise to answer for the debt, default or miscarriage of another person, or to charge any person upon any agreement made in consideration of mar- riao-e, or upon any contract for the sale of lands, tenements, or hereditaments, or any interest in or concerning them, or any lease thereof for a longer time than one year, or upon any agreement that is not to be performed within one year 470 APPENDIX. from the making thereof: unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized. ^ 7. No action shall be brought to charge any person up- on, or by reason of, any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings, of any other person, unless such representation or assurance be made in writing, and subscribed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. NEVADA — Laws 1861, Chapteb 9, §§ 61, 63. Section 61. In the following cases every agreement shall be void, unless such agreement, or some note, or memoran- dum thereof, expressing the consideration, be in writing, and subscribed by the party charged therewith : First. Every agreement that by the terms, is not to be performed within one year from the making thereof ; Second. Every speciul promise to answer for the debt, de- fault, or miscarriage of another ; Third. Every agreement, promise, or undertaking, made upon consideration of marriage, except mutual promises to marry. § 63. Whenever goods shall be sold at auction, and the auctioneer shall, at the time of sale, enter in a sale-book, a memorandum, specifying the nature and price of the prop- erty sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the con- tract of sale, within the moaning of section 61 of this chap- ter. NEW HAMPSHIRE — Revised Statutes, 1842, Chapter 180, § 8. Section 8. No action shall be brought in the following oases : APPENDIX. 471 JFirst. To charge any executor or administrator, upon any- special promise to answer damages out of his own estate ; Second. To charge any person, upon any special promise to answer for the debt, default, or miscarriage of another person ; Third. To charge any person upon an agreement made upon consideration of marriage ; Fourth. To charge any person upon any agreement that is not to be performed within one year from the time of making it. Unless such promise of agreement, or some note or mem- orandum thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto by him law- fully authorized. NEW JERSEY — Revised Statutes, 1847, Titlb 17, Ohapteb 1,§ 14. Section 14. No action shall be brought, whereby to charge any executor or administrator, upon any special prom- ise to answer damages out of his own estate ; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person ; or to charge any person upon any agreement made upon considera- tion of marriage ; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them ; or upon any agreement that is not to be performed within the space of one year from the making thereof, un- lets the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. NEW YORK— Rbtisbd Statutes, 1830, Pabt II, OflAPiBK 8, Title 2, §§ 2, 4. Section 2. In the following cases, every agreement shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith ; 472 APPENDIX. 1. Every agreement that by its terms is not to be per- formed within one year from the making thereof ; 2. Every special promise to answer for the debt, default, or miscarriage of another person ; 3. Every agreement, promise, or undertaking, made upon consideration of marrii^e except mutual promises to marry. ^ 4. Whenever goods shall be sold at public auction, and the auctioneer shall, at the time of the sale, enter in a sale- book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the pur- chaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of section 3, of this title. NORTH CAROLINA— Revised Statutes, Vol. I, Chapteb50,§ 10. Section 10. No action shall be brought whereby to charge any executors or administrator, upon a special promise, to answer damages out of his own estate, or to charge the defendant upon any special promise to answer the debt, default, or miscarriage of another person, unless the agree- ment upon which such action shall be brought, or some mem- orandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. OHIO — Revised Statutes, Swan's Edit. 1854, Chapter 49, § 5. Section 5. No action shall be brought whereby to chai'ge the defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person ; or to charge any executor or administrator, upon any special prom- ise, to answer damages out of his own estate ; or to charge any person upon any agreement made in consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them : or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agree- APPENDIX. 473 nient upon which such action shall be brought, or some mem- orandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her, lawfully authorized. OREGON— Civil Code, Title 8, Chapter 8, §§ 775, 776. Section 775. In the following cases the agreement is void, unless the same, or some note or memorandum there- of, expressing the consideration, be in writing, and sub- scribed by the party to be charged, or by his lawfully author- ized agent ; evidence therefore of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law : 1. An agreement that by its terms, is not to be performed within a year from the making thereof ; 2. An agreement to answer for the debt, default, or mis- carriage of another ; 3. An agreement by an executor or administrator, to pay the debts of his testator or intestate out of his own estate ; 4. An agreement made upon consideration of marriage, other than a mutual promise to mai-ry ; 5. An agreement for the sale of personal property, at a price not less than fifty dollars, unless the buyer accept and receive some part of such personal property, or pay at the time, some part of the purchase money : but when the sale is made by auction, an entry by the auctioneer in his sale- book, at. the time of the sale, of the kind of property sold, the terms of the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum ; 6. An agreement for the leasing for a longer period than one year, or for the sale of real property, or any interest therein ; 7. An agreement concerning real property, made by an agent of the party sought to be charged, unless the authority of the agent be in writing. § 776. No evidence is admissible to charge a person upon 60 474 APPENDIX. a representation as to the credit, skill, or character of a third person, unless such representation, or some memoi-aa- dum thereof in writing, and either subscribed by, or in the handwriting of the party to be charged. PENNSYLVANIA— DuNLAP's Laws, Chap. 59. Frauds and Perjuries, Brightley^s Purdon, 497. 4. No action shall be brought whereby to charge any exe- cutor or administrator, upon any promise to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise to answer for the debt or default of another, unless the agreement ujDon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged there- with, or some other person by him authorized. RHODE ISLAND —Revised Statutes, 1844. "■An Act to ])revent Frauds and Perjuries" Page 222. Section 1. No action shall be brought whereby to charge any executor or administrator upon his special promise, to answer any debt or damage out of his own estate, or whereby to charge the defendant upon his special promise, to answer for the debt, default, or miscarriage of another person ; or to charge any person upon an agreement made upon con- sideration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer time than one year ; or upon any agreement which is not to be performen within the space of one year from the making thereof, unless the promise or agree- ment upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized. SOUTH CAROLINA. [In this state the English Statute is in force. See also, Brevard's Digest, Tol.1, Title 84.] APPENDIX. 475 TENNESSEE —Scott's Edition of Laws, Vol. 1, Chaptbk 25, § 1. Section 1. No action shall be brought whereby to charge any executor or aduiiuistrator, upon any special promise, to answer any debt or damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made upon consid- eration of marriage, or upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year, or upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or uote thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized. TEXAS— Act of January 18th, 1840. Section 1. Xo action shall be brought whereby to/sharge any executor or administrator upon any special promise to answer any debt or damage out of his own estate, or where- by to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another per- son, or to charge any person upon any agreement made in consideration of marriage, or upon any contract for the sale of lands, slaves, tenements or hereditaments, or the making of any lease thereof for a longer term than one j^ear, or upon any agreement which is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof shall be in writing, and signed by the party to be charged therewith, or some person by him there- unto lawfully authorized. VERMONT— Revised Statutes, 1839, Title 15, Chapter 61, §§ 1, 3. Section 1. No action in law or equity shall be brought in any of the following cases, that is to say : 476 APPENDIX. First. To charge an executor or administrator upon any special promise to answer damages out of his own estate ; or, Second. T6 charge any person upon any special promise to answer for the debt, default or misdoings of another ; or, Third. To charge any person upon any agreement made upon consideration of marriage ; or. Fourth. Upon any contract for the sale of lands, tene- ments or hereditaments, or of any interest in or concerning them ; or, Fifth. Upon any agreement that is not to be performed within one year from the making thereof; Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or by some person thereunto by him law- fully authorized ; and if the contract or agreement relate to the sale of real estate or any interest therein, such authority shall be conferred by writing. § 3. No action shall be brought to charge any person, upon or by reason of any representation or assurance made concei'ning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him law- fully authorized. VIEGINIA — Code of Paetoit and Eobistson, 1849. Chaptee 143, §§ 1, 2. Section 1. No action shall be brought in any of the fol- lowing cases : ' First. To charge any person upon or by reason of a repre- sentation or assurance concerning the character, conduct, credit, ability, trade or dealings of another to the intent or purpose that such other may obtain thereby credit, money or goods ; or. Secondly. To charge any person upon a promise made after full age to pay a debt contracted during infancy, APPENDIX. 477 or upon a ratification after full age of a promise or simple contract made during infancy ; or, Tliirdly. To charge a personal represent, tive upon a pro- mise to answer any debt or damages out of his own estate ; or, FourOdy. To charge any person upon a promise to answer for the debt, default or misdoings of another ; or. Fifthly. Upon any agreement made upon consideration of marriage ; or, Sixthly. Upon any contract for the sale of real estate, or the lease thereof for more than a year ; or, SeveiUhly. Upon any agreement that is not to be per- formed within a year, unless the promise, contract, agree- ment, representation, assurance or ratification, or some memo- randum or note thereof be in writing, and signed by the party to be charged thereby, or his agent. But the consideration need not be set forth or expressed in the writings ; it may be proved, (where a consideration is necessary) by other evidence. § 2. Any writing to which the person making it shall affix a scroll by way of seal, shall be of the same force as if it were actually sealed. WISCONSIN— Revised Statutes, 1849, Title 20, Chapter 76, §§ 2, 4, 8. Section 2. In the following cases every agreement shall be void, unless such agreement or some note or memorandum thereof, expressing the consideration be in writing, and sub- scribed by the party charged therewith : First. Every agreement that by the terms is not to be performed within one year from the making thereof. Second. Every special promise to answer for the debt, default or miscarriage of another person. Third. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry. § 3. Every contract for the sale of any goods, chattels or 478 APPENDIX. things in action for the price of fifty dollars or more shall be void, unless : First. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged therewith ; or, Second. Unless the buyer shall accept and receive part of such goods or the evidences, or some part of them of such things in action ; or. Third. Unless the buyer shall at the time pay some part of the purchase money. § 4. Whenever goods shall be sold at public auction, and the auctioneer shall at the time of the sale enter in a sale book or memorandum, specifying the nature and price of the property sold, the terms of the sale, the name of the pur- chaser, and the name of the person for whose account the sale is made ; such memorandum shall be deemed a note of the contract of sale within the meaning of the last section. § 8. Every instrument required by any of the provisions of this title to be subscribed by any party, may be sub- scribed by the lawful agent of such party. APPEIDIX. Page 1, note A. (a) Unless fraud is clearly shown, the liability of a guar- antor is not aflfected by the invalidity of the original obliga- tion. Furdy v. Peters, 35 Barb. (N. Y.) 239 ; Sterns v. Marks, 35 Barb. (N. Y.) 565. This is the rule where the instrument is legal, where it is not so, the reverse is the rule. Swift V. Beers, 3 Deuio, (N. Y.) 70 ; Evans v. Hue/i/, 1 Bay, (S. C.) 13; Kylev. Bostich, 10 Ala. 589. A guarantor is an individual contractor, and must answer only in default of his principal ; he is entitled to notice of such defaults. This is not the rule in respect to a surety. McMillan v. Bull's Head Bank, 32 Ind. 11. Where a party became a guarantor with the understanding that certain others were to join with him. Held, that in the event of their failure to do so, he might in equity restrain a suit on the instru- ment. Evans V. Bremridge, 25 Law Journal, N. S., part I, pp. 102, 334. See also. People v. Bostwich, 43 Barb. (N. Y.) 9. Sureties are not responsible beyond the terms or their undertakings ; presumptions and equities are never allowed to enlarge or change their legal obligations. Legget v. Humphreys, 21 How. (U. S.) 66. The obligation of the guar- antor is that which the fair import of the language of the guaranty imposes upon him. He cannot insist upon a con- dition, if his engagement is absolute. Simons v. Steele, 36 N. H., 73. Where ambiguous language is used, which is sus- ceptible of two or more equally reasonable interpretations, that is to be adopted which makes most strongly against the guarantor. Bailey v. Larchar, 5 R. I. 530. Where a guar- anty by its terms, is general and unrestricted, and where the entire subject is embraced by it ; it covers the accessories and consequences for which the principal is liable. Benjamin v. Hillard, 23 How. (U. S.) 149. See also, Scully v. Hawkins, 480 APPENDIX. Id La. An. 183. The terms of the contract of guaranty are to be construed stiictly ; and no condition which is not incor- porated into the agreement or fairly implied from the lan- guage used, will be implied by the law. Bigelow v. Ben- ton, 14 Barb. (N. Y.) 123 ; Wright v. Johnson, 8 Wend. (N. Y.) 512; Hunt v. Smith, 17 Wend. (N. Y.) 179; Bobbin V. Brandley, 17 Wend. (N.Y.)422; Walrathy. Thompson, 6 Hill. (N. Y.) 540 ; S. C. affd. 2 Const. (N. Y.) 185. The liability of a guarantor is in general measured by that of his principal. Smith v. Rogers, 14 Ind. 224. In the case of an absolute guaranty, the guarantor is not entitled to notice of the failure of his principal to perform his obliga- tion. Voltz V. Harris, 40 111. 155 ; see also Dickerson v. DerHckson, Z2 Ills. 574; Bowman v. Cfurd, 2 Bush, (Ky.) 565. The engagement of the guarantor is accessory to the agreement of the principal ; and it is a general rule of law, that whatever discharges the contract of the principal, discharges also that of the guarantor. Miller v. Stewart, 9 Wheat. (U. S.) 680. A guarantor has all the rights which a surety has in equity ; any material variation of the con- tract, either before or after breach, or time given to the prin- cipal, will discharge the suret}'. A surety cannot claim to be a guarantor at law. Samuel v. Howarth, 3 Merivale, 272 ; Weed v. Grant, 30 Conn. 74 ; Peahe v. Darwin, 25 Vt., 28 ; Carter v. Jones, 5 Iredell, (N. C.) 193 ; Calvert V. The London Dock Co., 2 Reeve, 638. The defendant guaranteed the punctual payment of rent, and at his request, the tenant was ejected for non-payment. Held, that formal demand and notice was not necessary in order to enable the plaintiff to maintain his action. Held, further, that such ejectment did not divest the liability upon the guaranty. VivMl V. Richardson, 13 Allen, (Mass.) 521. Page 2, note a. (a) Lord Coke considers ten things essential to a valid deed of conveyance, Ist, writing ; 2d, parchment or paper ; 3rd, a person able to contract, 4th, a sufficient name ; 5th, a person able to be contracted with ; 6th, a sufficient name ; 7th, a thing to be contracted for ; 8th, apt words required APPENDIX. 481 by law, 9th, sealing; 10th, delivery. Shep. Touch. 54 ; Co. Lit. 35 b. ; 1 Wood Com. 125. Page 2, note b. (b) See 2 Smith's Lead. Cas. 456 ; Shuhrick v. Salmond, 3 BuiT. 1639 ; Morley v. Boothby, 3 Biiig. Ill ; Fallows V. Taylor, 7 T. R. 477. The distinction between sealed and unsealed instruments, is now a mere unmeaning and arbitrary distinction, made by technical law, and not sus- tained by reason. Ortucan v. Dickson, 13 Cal. 33. In some of the States by statute, the want or failure of con- sideration may be a good defence against an action on a sealed contract. This is the rule in other States by long usage. See Oallaway v. Heam, 1 Houst. 610 ; Kimball v. Walker, 30111.511; 5«s./wc?v.Pearson, 9 Allen, (Mass.) 393; Nut- ting V. Dickerson, 8 Allen, (Mass.) 540 ; Gray v. Handkin- son, 1 Bay, (S. C.) 278 ; State v. Gaillard, 2 Bay, (S. C.) 11 ; Matlock V. Gibson, 8 Rich. L. (N. C.) 437 ; Leonard v. Bales, 1 Blackf. 173 ; Swift v. Hawkins, 1 Dallas, 17 ; Case v. Boughton, 11 Wend. (N. Y.) 106; Solomon v. Kimmel, 5 Binn. (Penn.) 232 ; Ooyle v. Fowler, 3 J. J. Marsh. (Ky.) 473 ; Walker v. Walker, 13 Ired. L. (N. C.) 335 ; Peebles, V. Stephens, 1 Bibb. (Ky.) 500. The true i-ule appears to be, that when a deed acknowledges the receipt of a considera- tion, the grantor and all claiming under him are estopped from denying that one was paid. They may disprove the payment for the purpose of recovering the consideration money, but they cannot do so for the purpose of destroying the effect and operation of the deed. Grout v. Townsend, 2 Hill, (N. Y.) 554, 557 ; Meriam v. Harsen, 2 Barb. Ch. (N. Y.) 232, 267 ; McOrea v. Furmort, 16 Wend. (N. Y.) 460 ; B'k. of U. S. v. Houseman, 6 Paige Ch. (N. Y.) 526 ; Bamum v. Childs, 1 Sandf. (N. Y.) 58 ; Doe v. Beardsley, 2 McLean (U. S.) 412 ; Harvey v. Alexander, 1 Rand. 219 ; Philbrook v. Delano, 29 Me. 410 ; Goodwin v. Gilbert, 9 Mass. 310 ; Farrington v. Barr, 26 N. H. 86 ; Wilt v. Franklin, 1 Binn. (Penn.) 502, 518. Page 2, note 0. (o) Under 3 New York, R. S. 691, ^ 109, in cases where the 61 482 APPENDIX. action rests upon a sealed instrument, the consideration may be impeached in the same manner and to the same extent, as in cases of writings without seal. Johnson v. Miln, 14 Wend. (N. Y.) 195 ; Russell v. Badgers, 15 Wend. (N. Y.) 351; Tallmadge v. WalUs, 25 Wend. (N. Y.) 107. See also, 22 Barb. (N. Y.) 97 ; 10 Barb. (N. Y.) 308 ; 5 Duer. (N.Y.)294; 25 Wend. (N. Y.) 113 ; 5 Hill, (N. Y.) 66. The only effect of the usual clause acknowledging a consideration paid, is that the grantor may be estopped from denying that there was any consideration. Goodspead v. Butler, 46 Maine, 141. For every other purpose it may be varied, explained or contradicted by parol. Wooden v. Shotwell, 3 Zabr. (N. J.) 465. The only person who can take advantage of the fraud, is the party defrauded, and those who have his estate. Gage v. Gage, 9 Foster, 533. Page 3, note a. (a) In general, where there is a new contract based on a new and sufficient consideration, it will not be defeated or rendered invalid merely because it operates to secure the pay- ment of another person's debt, and is not in writing. Allen V. Thompson, 10 N. H. 32 ; see also, 2 Denio, (N. Y.) 45. Page 4, note A. (a) It is not accurate in point of law to distinguish between written and parol contracts. A written contract, if not sealed, is in law a parol agreement. Beekman v. Drake, 3 M. & W. 92 ; see also, Rann v. Hughes, 7 T. E. 350, n. ; Thacher v. Dinsmore, 5 Mass. 299 ; Cook v. Bradley, 7 Conn. 57 ; Union Turnpike Co. v. Jenkins, 1 Caines' (N. Y.) 386. Page 5, note A. (a) The contract of guaranty, although in writing, is of no force unless founded upon a consideration. Wain v. Warl- ters, 5 East, 10 ; Elliott v. Giese, 7 Har. & J. 457 ; Leonard V. Vreedenburgh, 8 John. (N. Y.) 29; Bailey v. Freeman, 4 John. (N. Y.) 280; Clark v. Small, 6 Yerg." 418; Aldridge V. Turner, G. & J. 427; JSTeelson v. Sanborne, 2 N. H. 414 ; Tenny v. Prince, 4 Pick. (Mass.) 385; Cobb v. Page, 17 Penn. St. 469. APPENDIX, 483 The rule of law with regard to the consideration of a guaranty, is this : Where the original obligation has already been incurred before the colhiteral undertaking, then the consideration in order to sustain the guaranty must be a new and distinct one. Raband v. Be Wolf, 1 Paine, C. C. (U. S.) 580; Bell v. Welch, 9 C. B. 154; Anderson v. Bavis, 9 Vt. 13t); Pike V. Irtcin, 1 Sandf. (N. Y.) 14; Parker v. Barker, 2 Met. (Mais.) 423; Blder v. Warjield, 7 Har. & J. 391; Ware v. Ada77is, 24 Me. 177; Blake v. Parlin, 22 Me. 395. In a case where the original obligation is founded upon a good consideration, and at the time when it is incurred, or before that time, the guaranty is received, and is a part of the inducement for giving credit, then the same considera- tion for which the original obligation is incurred is held to be the consideration also for the guaranty. Leonard v. Vreedenhurgh, 8 John. (N. Y.) 29; Bickford v. Gibhs, 8 Cush. (Miiss.) 156; Graham v. O'Neil, 2 Hall, (N. Y.) 474; Bainbndge v. Wade, 1 E. L. & E. 236; S. C. 16; Q. B. 89; Campbell v. Knapp, 15 Penn. St. 27; Klein v. Currier, 14 111. 237; ConkeyY. Hopkins, 17 John. (N. Y.) 113; Gardner v. Hopkins, 5 Wend. (N. Y.) 23; Howe v. Kemball, 2 McLean, (U. S.) 103; Krutz v. Adams, 7 Eng. (Ark.) 174; Henderson v. Rice, 1 Cold. (Tenn.) 223. The consideration need not pass directly from the party giving it, to the party receiving it; it is enough if a benefit arises to the party for whom the guaranty is given, or the party receiving the guaranty is or may be injured by it. Either of these will raise a sufficient consideration. Leonard v. Vreedenhurgh, 8 John. (N. Y.) 29; Bickford v. Gibhs, 8 Cush. (Mass.) 156; Marley v. Boothley, 3 Bing. (Penn.) 113; Williams v. Mar- shall, 42 Barb. (N. Y.) 524. A promise made by A. to per- form a duty which B. had previously undertaken for a good consideration, will not, unless a further consideration is shown, support an action. 8mith v. Mudgett, 20 N. H. 527. A o-uaranty, executed after the de t had been contracted, but in pursuance of a previous promise to guarantee, on the faith of which the creditor had trusted the principal, was held a good consideration. Standley v. Miles, 36 Miss. (7 484 APPENDIX. George) 434 A moral consideration is insufficient to sup- port an action. Eahin v. Fentan, 15 Ind. 59; Updike v. True, 2 Beasley, (N. J.) 151; Shepard v. Rhodes, 7 E.- 1. 470. The consideration of a guaranty need not appear, even when it is in writing : it may be shown by parol. Oregory V. Gleed, 33 Vt. 405. It is now well settled that the words " debt, default or miscarriage," extend to a liability for a mere tort. This was settled in the early case of Kirkham v. Marter, 2 B. & Aid. 613; see also. Turner v. Hubbell, 2 Day, (Conn.) 457. Page 5, note b. (b) The guarantor of a note, is in no sense a party to it. Mils V. Brown, 6 Barb. (N. Y.) 282; 5 Wend. (N. Y.) 307; 2 Hill, (N. Y.) 190. A new consideration is not necessary to support a guaranty of a note given at the same time the note is executed : but if given afterwaWs, a new considera- tion is necessary. Joslyn v. OolUnscm,, 26 111. 61. Since the adoption of the Code of 1851, a written guaranty of a promissory note imparts a consideration. Sabin v. Harris, 12 Iowa, 87. An indorser of a note at the time of its exe- cution, and before delivery, is a guarantor. Van Dwen v. Tjader, 1 Nev. 380. The liability of a party who endorses a note for the benefit of both maker and payee, is that of a surety; it is not that of a simple guarantee. Morton v. Hall, 41 Vt. 47 1. Where a person, not a party to a note endorses it, he is presumed to have done so as surety. Collins v. Trist, 20 La. An. 348. The rule is different in Illinois. See Die- trich V. Mitchell, 43 111. 40. The rule in several of the states is, that the holder of a note has the same legal rights against the surety, as he has against the principal maker, and can- not therefore be compelled to prosecute one of them for the benefit of the other. Davis v. Higgins, 3 N. H. 231; Bull v. Allen, 19 Conn. 101 ; Bond v. 8torrs, 13 Conn. 412 ; Frye v. Barker, 4 Pick. (Mass.) 382; Buchanan v. Bordley, 4 Har. & McH. 41; Lenox v. Pry or, 3 Wheat. (U. S. ) 524; Croughton v. Duvall, 3 Call's R. 69; Moore v. Promsard, 20 Martin, 277. APPENDIX. 485 Page 6, note a. (a) Rann v. Hughes, 7 Tenn. R. 350 ; SchoonmaJcer v. Rossa, 17 John. (N. Y.) 301. A. made a will, and after- wards made his note, which he gave to his son without con- sideration ; he never intended it to have a validity during his lifetime. It was the intention that it should be enforced against his estate. Held, that the note could not be enforced. To hold it valid, would be to give it the force of a will. The fact that the maker of the note had paid interest on it for several years, did not make any difference. Phelps v. rhelps, 28 Barb. (N. Y.) 121; see also, Dodge v. Pond, 23 N. Y. 78; Harris v. Qlark, 3 Const. (N. Y.) 93. The gift of the maker's own note, is simply a promise — it is not a gift of property; payment cannot be enforced against either the maker or his estate. Starr v. Starr, 9 Ohio, (N. S.) 74. See also. Frost v. Frost, 33 Vt. (4 Shaw) 639; Connor v. Trawick, 1 Ala. (S. C.) 258; Caswell v. Ware, 30 Geo. 267; Craig v. Kittredge, 46 N. H. 57; Payne v. Powell, 5 Bush. (Ky.) 248. Page 8, note A. (a) a promise to pay the debt of another may not be in writing, and it may yet be enforced on the ground that it is an original promise, and not a collateral one ; in such a case it does not come within the statute of frauds. Allen v. Thompson, 10 N. H. 32, is an example. In this case Allen obtained the account-book of his debtor, as a pledge to secure his debt. Thompson in consideration that Allen would deliver the book to one Bryant, in order that he might collect the demands, verbally promised Allen, that he would pay him the amount due from the debtor, if Bryant should not collect enough for that purpose. Held, " In cases of mere forbear- ance, there is no consideration independent of the debt, the for- bearance being of the debt itself ; and it may, perhaps, be said, that this consideration, being thus connected with the debt, moves only between the parties to the original contract, although the delay is at the request and on the promise of a third person. But in this case there is not only a new con- sidei ation, but one which is distinct from and independent 486 APPENDIX. of the debt ; and the delivery of the book to Bryant, on the defendant's request, being in eflfect the same as a delivery to the defendant himself, this new consideration passes between the parties to the new contract. The authorities are clear that cases of this description are not within the statute, and no writing is necessary to make the contract valid." The same rule was held in Hilton v. Dinsmore, 21 Me. 410. Where a new consideration is the foundation for a promise to pay the debt of another, and this consideration passes between the parties to the promise, and the promisor re- ceives a benefit which he could receive only because of the promise ; then it will be regarded as .an original promise not coming within the statute of frauds, and will be enforced, notwithstanding it is not in writing. Tileston v. N'ettleton, 6 Pick. (Mass.) 509 ; Nelson v. Boynton, 3 Met. (Mass.) 396 ; Oahill v. Bigdow, , 18 Pick. (Mass.) 369. In Tiles- ton V. JSfettleton, the plaintiff was an innkeeper, and as such furnished a dinner for a public celebration. A committee of arrangements gave him his directions, the defendant being a member of such committee. It was the understanding that each person should pay for his own dinner ; the commit- tee were to incur no personal liability. Among those who attended the dinner was a'military company, of which the defendant was captain. While the servants of the plaintiff were collecting the pay, the defendant told them that they need not call upon the members of the company for pay, as he would be responsible for Ihem. Held, that the defend- ant's promise was a collateral undertaking, and was not within the statute of frauds. A promise to pay the debt of another, is not within the statute of frauds, and need not be in writ- ing, if it is based upon a valuable consideration, independent of the original debt moving between the parties to the new promise. Where such a consideration exists it makes no dif- ference in regard to the application of the statute, whether the original debtor remains liable or not. Cross v. Richard- son, 30 Vt. (1 Shaw,) 641. See also Pennell v. Pentz, 4 E. D. Smith, (N. Y.) 639. A promise to pay another's debt, upon a new consideration, between the new parties, APPENDIX. 487 the promisor receiving a new benefit, need not be in writ- ing, as it was not within the statute of frauds. Kutz- meyer v. Ennis, 3 Dutch, (N. J.) 371 ; see also Mason v. Hall, 30 Ala. 599. Where the whole credit is not given to the person who becomes surety for another, the promise is within the statute of frauds and must be in writing. AlUn V. Scarff, 1 Hilton, (N. Y.) 209. In a case where the prin- cipal object of the promisor is not to be surety for another's debt, but to subserve some purpose of his own, his promise need not be in writing, although incidentally in performance, it has the effect of paying another's debt, Lemmon v. Box, 20 Texas, 329*; Clay y. Walton, 9 Cal. 328. An agreement with a debtor that he is to pay his debt to a third person, is not within the statute of frauds. Tibbetts v. Flanders, 18 N. H. 284. In orderto make the promise collateral, so as to bring it within that provision of the statute of frauds which requires a promise to answer for the debt, default, or mis- carriage of another, to be in writing, the party for whom the promise is made, must be liable to the party to whom it is made. Boyhin v. Dohlonde, 37 Ala. 577 ; Downey v. Hinch- man, 25 Ind. 453. Ever}' actual promise is special. The term special prom- ise as used in the statute, seems to have no other effect than to show, that it is promises in fact that are referred to, and not promises implied by law. Gage v. WilcoXf 6 Conn. 81 ; Goodman v. Gilbert, 9 Mass., 510 ; Allen v. Pry or, 3 Marsh, (Ky.) 305 ; Pike v. Broim, 7 Gush., (Mass.) 133. Page 17, note A. (a) An entire promise not in writing, being in part a col- lateral promise to pay the debt of another, and in part an original promise, being by force of the statute void as to the collaterel undertaking, is void as to tbe whole; e. g. the plaintiff furnished supplies to the defendant's son, which were charged to the son. The defendant subsequently re- quested the plaintiff to continue to furnish the supplies, at the same time saying: "for what you have done, and for what you shall do for my son, I will see you paid." Held, that the promise was founded on a legal consideration, but 488 APPENDIX. that it was void by the statute, not having been in writing. Loomis V. Newhall, 15 Pick. (Mass.) 159. Page 20, note a. (a) a loaned money to B, upon the promised security of C, taliing a note from B, which, three days after the note became due was signed by the surety. In an action by A against C, it was held, that, the money having been loaned at the request of the surety, the consideration for his pro- mise, though past, was continuing and valuable, and that his signature to the note was a completion and full execution of the promise upon the consideration. Paul v. 8tack- house, 38 Penn. St. 302. Semble, that the consideration of one cent will not support a promise to pay $600. Schnell V. Nell, 17 Ind. 29. A promise for a promise, is a sufficient consideration, and an action may be founded upon it. Funic V. Hough, 29 111. 145 : see also, Downey v. Hinch- man, 25 Ind. 453. Page 27, note A. (a) a promise to pay the debt of another in consideration of forbearance is not binding, unless accepted by the pro- misee. Both must be bound, in order that the promise may be binding. Shupe v. Galbraith, 32 Penn. St. 10. An agreement to forbear, but which gives to the holder no new rights, is void, as being without consideration. McOann V. Lewis, 9 Cal. 246. A promise in consideration of for- bearance, to pay the debt of an infant, which contract was duly ratified by the infant, was held valid and binding on the promisor. Kuns v. Young, 34 Penn. St. 60. In Bal- foury. Sea, dec. Assurance Co., 3 C.B. (N. S.) 300, forbear- ance of a debt due from a third person, was held a sufficient consideration for the giving of a note. Simple forbearance is not a good consideration for a mere parol promise to pay the debt of another. In order that it may be available in such a case, it must be set forth in a written promise to pay. Vanslyck v. Pulver, Hill & D. Supp. (N. Y.) 47. See also, 4 Yerg. 563. Compare Farley v. Cleveland, 4 Cow. (N. Y.) 432. APPENDIX. 489 Page 43, note a. (a) When a guarantor, by the use of ambiguous language in his guaranty, renders it susceptible of two or more equally reasonable interpretations, that is to be adopted which makes most strongly against him. What is the most reasonable interpretation ot a guai-anty is to be deduced, by considering its subject, the relative condition of all the parties, and their probable intent. Bailey v. Larcher, 5 R. I. 530. The rule of construction, that the words of an in- strument are to be taken most strongly against the grantor, is one of last resort ; applicable only where the language of the instrument will equally admit of either of two or more interpretations. F alley v. Giles, 29 Ind. 114. In Penn- sylvania the following words were held not sufficiently ex- plicit to bind the speaker, to pay the debt of another. This was true although they were uttered before the statute of -frauds was enacted in that State. " If he is not good, I am." Titcher v. Bitting, 32 Penn. St., 428. When a party knew that his co-contractor expected and understood that he would do certain things. Held, that he was not bound to exceed his contract for that reason. Johnson v. Sellers, 33 Ala. 265 ; Rogers v. Broadnax, 27 Texas, 238. Directly contra, Jordan v. Dyer, 34 Vt. 104. In a case where it is doubtful what the parties mean ; the construc- tion put upon the contract, by the manner in which it has been executed by both, or by one with the expressed or im- plied assent of the other, furnishes a rule for its interpre- tation. Williams v. McHatton, 16 La. An. 196 ; Commer- cial Bank v. JSlew Orleans, 17 La. An. 190. When the language of the instrument is ambiguous, and susceptible of more than one construction, that construction will be adopted which, in the light of surrounding circumstances, and upon a view of the whole instrument is in accordance with the apparent intent of the parties. Springsteen v. Samson, 32 N. Y. 703 ; Karmuller v. Krotz, 18 Iowa, 352. Too much stress is not to be laid upon the precise meaning of words, when the intention is manifest, Salmon Falls Co. V. Portsmouth Co., 46 N. H. 249. 63 490 APPENDIX. Page 49, note A. (a) The question, as to whether or not the consideration must appear upon the face of the written guai-anty, has been settled in many of the States, and in England, by statutory enactment. It need not be expressed in the fol- lowing States : Indiana, Kentucky, Maine, Massachusetts, Michigan, New Yorlj, Virginia. In the following States the statute is silent on the question : Arkansas, Connecticut, Delaware, Florida, Illinois, Iowa, Kansas, Mississippi, Mis- souri, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Ehode Island, Tennessee, Texas, Vermont. In the following States, the consideration must be expressed : Alabama, California, Minnesota, Nevada, Oregon, Wisconsin. In Georgia, Maryland, and South Carolina, the English statute is in force. In England by a late statute, " Mercan- tile Law Amendment Act, 19 & 20 Vic. 1856," the con- sideration need not be expressed in the writing. The New York R. S. vol. Ill, p. 221, 5th ed., require the special promise to answer for the debt, default, or miscarriage of another person, to be in writing, and the consideration as well as the agreement to be expressed. This rule was changed by the laws of 1863, ch. 464, p. 802, as follows : " Every agreement shall be void unless such agree- ment or same note or memorandum thereof be in writing, and subscribed by the party to be charged therewith. 2. Every special promise to answer for the debt, default or miscarriage of another person." It will thus be seen that by the change created by the law of 1863, the con- sideration need not be expressed. Under the statute of frauds, 3 E. S. 221, 5tb ed., as amended by laws of 1863, ch. 464, and which omitted the words expressing the consideration, from that clause requiring a note or memorandum to be made in writing. Held, that the consideration need no longer be expressed in the personal contracts therein referred to. In enacting this amendment, the legislature intended to abolish altogether the statutory requirement that the con- sideration is to be expressed in every instrument coming within § 2, and not merely to restore the former rule. APPENDIX. 491 Speyers v. Lambert, 37 How. (N. Y.) 315 ; S. C, 6 Abb. X. S. (X. Y.) 309. The cousideration of a guaranty may- be shown liy parol ; it need not appear upon its face. Gre- govy V. Gleed, 33 Vt. (4 Shaw) 405. Ill Alabama, under the Code § 1551, contracts to answer for another, must express the consideration in writing. ^ 2278, which makes a written contract presumptive evi- dence of a consideration, does not eflfect this. Rigby v. Nor- wood, 34 Ala. 129. It is a sufficient statement of the consideration, if the ■words " for value received," are used in the writing. Miller V. Cooh, 23 N. Y. 495 ; Mosher v. Hoichkiss, 3 Keyes, (N. Y.) 161 ; S. C, 2 Keyes, (N. Y.) 589 ; Douglass v. Rowland, 24 Wend. (N. Y.) 35 ; Gooper v. Dedrick, 22 Barb. (N.Y.) 516; Laphamy. Barrett, IMt. 247; Whitney V. Stea7'ns, 16 Me. 394 ; Brewster v. Silence, 4 Seld. (N.Y.) 207 ; Connecticut Mat. Life his. Go. v. Gleveland R. R. Go. 41 Barb. (N. Y.) 9 ; S. C, 26 How. (N. Y.) 225 ; Gkeney V. Gook, 7 Wis. 413; Howard y. Holbrook, 9 Bosw. (N. Y.) 237. The doctrine established by the case of Wain v. Warlters, 5 East, 10, was distinctly abrogated by 19 and 20 Victoria, ch. 97, § 3, enacting that no guaranty should be invalid for not expressing the consideration in terms, or by inference. Page 58, note a. (a) a distinction must be made between an offer to guaranty at a future time, and an absolute present guaranty. The former is not binding till accepted ; the latter takes effect as soon as made. " I have no objection to guaranty you against any loss for giving them this credit." " I have no objection to be answerable as far as £50. For any reference apply to A. B. of this place." These were held to be mere proposals to guaranty, and the parties to whom they were serverally made must give notice to the maker of his acceptance, in order to bind the guarantor. Mclver v. RicKardson, 1 M. & S. 557/ Mozley v. TincUer, C. M. & Ross, 692. " Dear Sir, this note will introduce to you A. B. who wishes to purchase goods upon a credit of three months. I consider him per- fectly good, and if required will endorse for him to that 492 APPENDIX. amount. This was held not to be a guaranty in itself. The undertaking was only to be entered into upon request, and then by endorsement only. Stockbridge v. Schoonmaker, 46 Barb. (N. Y.) 100 ; see also Schlessinger v. Dickinson, 5 Allen, (Mass.) 47. As to the form of a guaranty, and the diflFerence between an offer to guaranty, and a guaranty, see Burge on Surt., c. 2, p. 16 ; Addison on Contracts, pp. 107, 114. A mere request that credit shall be given, by one per- son to another, does not create a legal liability. There must be either a guaranty of the debt, or a misrepresentation as to the responsibility of the person to whom the goods are sold, before a liability exists. Bvshnell v. Bishop Hill Oolmiy, 28 111. 204. Page 66, note a. (a) The written memorandum must contain the names of both the contracting parties ; it is not sufficient that a guar- anty contain the name of the jjarty who is answerable for the debt ; it must contain as well the name of him whose debt is to be answered for. This rule appears to be of gen- eral acceptance, both in this country and in England. Williams v. Lake, 1 L. T, (N. S.) 57 ; Wheeler v. Collier, Moo. & Mai., 123; Jacob v. Kirk, 2 Moo. & Rob., 221; Allen V. Cennett, 3 Taunt. 169 ; Farwell v. Lowther, 18 111. 252 ; Waterman v. Meigs, 4 Cush. (Mass.) 497 ; Sheid V. Stumps, 2 Sneed, 172; Nichols v. Johnson, 10 Conn. 192; Webster v. Ela, 5 N. H. 540 ; Sh&rburne v. Shaw, 1 N. H. 157. In Williams v. Burns, 8 L. T. (N. S.) 69, it was held that a promise in writing, signed, to pay a person unnamed who shall furnish goods to the writer, or to a third person, would become a binding contract with any one who shall accept the promise in writing, and furnish the goods. Page 67, note a. (a) a. wrote to B., that C. wished to purchase goods ; that he had ample means, but was at present embarrassed ; adding, I will guaranty that C. will pay for any goods that he pur- chases in New York this fall, not exceeding $5,000. C. pre- sented the letter to B., and then went to D. and bought goods, APPENDIX. 493 at the same time referring him to B., who showed him A.'s letter. Held, that the letter was clearly intended to facilitate purchases, and that the guaranty extended to any person Avho sold relying upon it. McNaughton v. ConMing, 9 Wis. 316. R., having contracted to erect a building, assigned his con- tract to C, the latter executing to him, at the time, a bond, with M., G. and others as sureties, conditioned to pay R. at certain rates for stone aU-eady quarried for such building. Afterwards, with the full knowledge and consent of the sure- ties, C. assigned the building contract to said M., with a con- dition that M. was to perform all the undertakings, and as- sume all the risks imposed upon C. as assignee of said con- tract. M. accepted the assignment, performed the work, and received the benefits of the building contract, but failed to pay for the stone according to the condition of C.'s bond to E., and R. obtained judgment upon the bond against M. and G., and other sureties ; M. declined to assume the conduct of the defence of the action, although requested to do by G., and the other sureties. In an action by G., (who paid the judgment) against M., to recover the amount of such judg- ment and expenses of litigation, it was held, that although the name of M. had not been formally inserted in said bond to R., as principal therein instead of C, yet he had in fact assumed the character and responsibilities of such principal, and was liable in the action upon an implied promise to indemnify G. as his surety. Gray v. McDonald, 19 Wis. 213. A. wrote a letter of credit, addressed to B., in favor of C, guarantying the payment of such debts as C. may contract, for the purchase of goods, on credit, for a certain amount. Held, a general letter of credit, and not confined to debts contracted with the party to whom it was addressed. Bene- dict V. Sherill, Hill & D. Supp. (N. Y.) 219. Where a let. ter is especially directed to a particular person, no other person can, by volunteering to act upon it, create any legal obligation against the writer. BircJchead v. Brown, 5 Hill, (N. Y.) 634 ; S. C. aff'd 2 Denio, (N. Y.) 375. 494 APPENDIX. Page 70, note A. (a) L., the defendant, wrote, signed and handed to T. & O. the following instrument: '' Sir, I beg to inform you that I shall see you paid to the sum of £800 for the ensuing build- ing which you undertake to build Messrs. T. & O." L. intended this to be handed over to T. & O., as a guaranty to J., who was then negotiating with T. & O. to erect for them the building referred to. T. & O., however, having agi-eed with one W. instead of J., that W. should erect the build- ing, delivered the guaranty to him without L.'s knowledge or authority. L. afterwards heard of and ratified this deli- very. W. having erected the building, sued L. on the instrument as a guaranty. Held, that the instrument was not a sufficient written agreement or note or memorandum thereof by L. to answer for the debt or default of T. & O., inasmuch as the name of the person for whom the instru- ment was intended did not in any way appear upon the face of it, so that it did not contain the names of both the parties to the contract. Williams v. Lake, 2 Ellis & E. 349. Page 77, note a. (a) a letter written by a party to his agent, in which he refers to letters which such agent has written, and setting forth the terms on which the agent has made a contract on his principal's behalf, is a sufficient memorandum to bind the principal, under the English statute of fraud^. Gibson V. Holland, Law Rep. 1 C. P. 1. A. sold certain property to B. and sent an invoice to him. B. returned the invoice with a note written on the back of it, signed by himself to this effect: "The goods came to day but I did not take them in, for they were badly crushed; it is returned." Held, that the invoice and note contained a sufficient note or memorandum to satisfy the statute of frauds. Wilkin- son V. JEvans, Law Rep. 1 C. P. 407. Page 78, note a. (a) Where the statute of frauds requires a contract to be in writing, it cannot be partly in writing and partly by parol. Wright v. Weeks, 25 N. Y. 153. The same rule was held in Hall v. 8oule, 11 Mich. 494. Judge Kent says, 2 Kents' APPENDIX. 495 Com. 556 (marg. page): "The law places more reliance upon written than oral testimony, and it is an inflexible rule that parol evidence is not admissible to supply or con- tradict, enhirge or vary the words of a contract in writ- ing. That would be the substitution of parol to written evi- dence under the hand of the party, and it would lead to luicertaiuty, error and fraud." Pierson v. Hoohfr, 3 John. (N. Y.) 68; Jackson v. Foster, 12 John. (N. Y.) 488. For an exhaustive collection of the cases holding parol evi- dence inadmissible, see 1 Halsted's Law of Evidence, 230 to 243. Where the contract is reduced to writing, the written instrument is supposed to contain the whole contract ; parol evidence cannot be introduced to contradict or vary its terms. Peers v. Davis, 29 Miss. (8 Jones) 184 ; Heed v. Jones, 8 Wis. 392. Where the agreement is one of those which is embraced by the provisions of the statute of frauds, no action can be brought upon it unless it is wholly in writing. Gummings V. Arnold, 3 Met. (Mass.) 486 ; Bryan v. Hunt, 4 Sneed, (Tenn.) 543 ; Jordan v. Hawkins, 1 Ves. Jr. 402 ; Noble V. Ward, Law K. 1 Exch. 117 ; Partericke v. Powlet, 2 Atk. 383 ; Blood v. Goodrich, 9 Wend. (N. Y.) 68 ; Bogers V. Atkinson, 1 Kelly, (Ga.) 12 ; Whittier v. Dana, 10 Allen, (Mass.) 326. The early case of Cuff v. Penn, 1 Maule & S. 21, which is apparently to the contrary, is explained in Steams v. Hall, 9 Cush. (Mass.) 35. Page 82, note A. (a) In 1 Greenleaf, § 277, the rule is thus laid down : "The rule is directed only against the admission of any other evi- dence of the language employed by the parties in making the contract, than that which is furnished by the writing itself. The writing it is true may be read by the light of surround- ing circumstances, in order more perfectly to understand the intent and meaning of the parties ; but as they have consti- tuted the writing to be the only outward and visible expres- sion of their meaning, no other words are to be added to it, or substituted in its stead," and in § 282, "The rule excludes only parol evidence of the language of the parties con- 496 APPENDIX. tracting, vaiying, or adding to that which is contained in the written instrument." Parol evidence is admissible to show that the instrument is altogether void, that it never had any binding force. Want of consideration may be proved by parol, and fi-aud may be proved by the same means. That the contract was forbidden by law, may be shown by parol evidence, as well as that it was obtained by felony, or by duress. Such evidence may be used to show that the party was incapable of binding himself, or that the instrument came into the hands of the plaintiff without any absolute and final delivery. See 1 Greenleafs Ev. § 284, and cases cited. The situation of the parties, the acts to be performed, and the time, place, and manner of performance, may all be considered in aid of the interpretation of an agreement. Memll V. Gore, 29 Maine, 346. Page 84, note A. (a) In an action upon a guaranty, a letter from the guar- antor to the creditor, althouii;h written at the time of making the contract, was held not to be evidence against the guar- antor, to vary the legal effect of his contract. Kemmerer v. Wilson, 31 Penn. St. 110. Where an action is commenced upon a letter of guaranty, there must be proof of notice by the person to whom it was addressed, of its acceptance and that credit was given on the faith of it. McCollum v. dish- ing, 22 Ark. 540. In Foster v. Leeper, 29 Geo. 294, letters written by the defendant were held sufficient to take the case out of the statute of frauds. When the statutes of frauds requires a contract to be in writing, it does not require it to be all upon the same paper ; it is unnecessary that the acts should all be contemporaneous. Parol evidence may be introduced to con- nect thei various parts. Lee v. Mahoney, 9 Iowa, (1 With.) 344. Page 91, note a. (a) The printed signature of a broker who effected a sale, was held not to be a sufficient signing, to take the case out of the statute of frauds. Zachrisson v. Poppe, 3 Bosw. (N. Y.) 171. A broker having made a contract of sale, may APPENDIX. 497 authorize his clerk to make and sign an entry or memoran- dum thereof, under the broker's direction, in his presence, so as to bind the parties named in the contract WiUiamsv. Woods, 16 Md, 220. The manipulations of a telegraph operator, upon the verbal directions of a person to send a dispatch for him, are equivalent to a signing by that person, within the statute of frauds. Dunning v. Roberts, 35 Barb. (N. Y.) 463. A signature by initials is valid, and parol evi- dence is admissible to apply them. Sanborn v. Flagler, 9 Allen, (Mass.) 574 ; Palmer v. Stephens, 1 Denio, (N. Y.) 471. A substantial signing of the agreement is sufficient, although it is not literal and formal. Welford v. Beazely, 3 Atk. 503. Where the agreement is not itself signed, but a let- ter alluding to, and acknowledging the agreement is signed, this is sufficient. Saunderson v. Jackson, 2 B. & P. 238; Tawney v. Crowthet,2> Bro. Ch. 161, 318; Shipperly v. Deni- son, 5 Esp. 190; Gale v. Nixon, 6 Cowen, (N. Y.) 445; Parker v. Barker, 1 Gray, (Mass.) 409. It is not enough however that the agreement be written by the party himselt, unless he signs it. HawMns v. Holmes, 1 P. Wm's. 770; Bailey v. Ogden, 3 John. (N. Y.) 399; Selby y. Selhy, 3 Meriv. 2; Anderson v. Harold, 10 Ohio, 399. If the name be written in any part of the agreement, it may be taken as the signature, provided it was there written for the pur- pose of giving authority to the instrument, and this operat- ing as a signature. Profert v. Parker, 1 Russ. & M. 625; Ogilvie v. Foljambp., 3 Meriv. 53; Penniman v. Hartshorn, 13 Mass. 87: Olasson y. Bailey, 14 John. (N. Y.) 484; People V. Murray, 5 Hill, (N. Y.) 468. Where a person has been in the habit of using instruments with his name printed in them, this will be his signature; it is equally a signature if written in pencil. Saunderson v. Jackson, 3 Esp. 180 ; Schneider v. Non-is, 2 M. & S. 286; Merrit v. Classon, 12 John. (N. Y.) 102; see also, 14 John. (N. Y.) 484; McDowell V. Chambers, 1 Strobh. Eq. 347; Draper v. Pat- tina, 2 Speers, 292; Geary v. Physic, 5 B. & C. 234. It is a general rule, that when a statute requires an instrument to be in writing and subscribed, e. g., the statute of frauds, 63 598 APPENDIX. that it will be satisfied by any signature which is adopted by the party to be bound by it. Barnard y. Heydrick, 29 Barb. (N. Y.) 62; S. C, 2 Abb. N. S., (N. Y.) 47; 32 How. 97. In this case the rule in Farmers' L. & T. Co. v. Dick- son, 9 Abb. (N. Y.) 61; S. C, 17 How. (N. Y.) 477, is disap- proved. A signature made by a party, another person guiding his hand, if done with his consent, is a sufficient signing. v. 4 Wash. C. C, (U. S.) 262; see also, Vandruff v. Rinehart, 29 Penn. St. 232, where it is held, that no express request for assistance need be proved. Wil- son V. Beddard, 12 Simons, 28. Guiding the pen while a person makes their mark, is held to be a sufficient signing. Meehan v. Roivke, 2 Bradf. (N. Y.) 385; Campbell v. Logan, 2 Bradf. (N. Y.) 90; see also, 3 Q. B. 117: Mmris v. Kniffin, 37 Barb. (N. Y.) 336. In New York, under the provisions of the statute of frauds, which require certain contracts to be sub- scribed, it is held that the name of the party or his agent must be signed below, or at the end of the contract or memorandum thereof. It was a substantial alteration of the statute, to substitute the word " subscribed," for " signed," James v. Ratten, 6 N. Y. 9; Rev. S. C. 8 Barb. (N. Y.) 344; Davis V. Shields, 26 Wend. (N. Y.) 341; Eev. S. C. 24 Wend. (N. Y.) 322; see also, Champlin v. Parish, 11 Paige, (N. Y.) 405; Coles v. Bowne, 10 Paige, (N. Y.) 526. In whatever form tlie memorandum may be, the statute requires that it shall be authenticated by the signature of the party to be charged, or his agent. Brown on Statute of Frauds, § 355, aud cases cited. Page 97, note a. (a) Under the English statute of frauds, it appears to be well settled that the appearance of the vendor's name printed in a bill of parcels, is a sufficient signature to bind him. Saunderson v. Jackson, 2 B. & P. 238; Schneid&i-y. JSTon^is, 2 M. & Sel. 286, Semble, that under the statute of frauds in New York, which requires that the memorandum shall be subscribed, the printed signature of the broker is not a suffi- cient signing, Zachirson v. Poppe, 3 Bosw. (N. Y.)171. A printed subscription of a summons was held to be sufficient, APPENDIX. 499 ill Mutual Life Insurance Co. v. Ross, 10 Abb. (N. Y.) 260, note. A printed subscription does not vitiate a summons. Barnard v. Heydrich, 2 Abb. N. S. (N. Y.) 47; S. C, 49 Barb. (N. Y.) 62; 32 How. (N. Y.) 97. Page 97, note b. (a.) a. wrote a letter to a merchant stating the terms upon which he wished to purcliase certain goods, and ofiered B. as the endorser of his note. On the bacli of this letter, B. wrote accepting the terms mentioned in the letter, and sign.ed his name to it. Held, that the acceptance of the terms of the letter by B. written on the back of it, was a sufficient writing within the statute of frauds, to bind the party who thus promised to become endorser. Ome v. Cooh, 31 111. 238. It is sufficient to take the case out of the operation of the statute of frauds, in Minnesota, which is to the effect that the contract must be " subscribed by the parties to be charged therewith," if the memorandum be signed by the party against whom it is sought to be enforced. Morin v. Martz, 13 Minn. 191. Where a proposal was to be signed by the party to be charged, and was accepted by parol, by the party to whom it was made. Held, that this was a suf- ficient memorandum to satisfy the statute of frauds. Reuss V. Pichsley, Law Eep. 1 Ex. 342. Where the agreement is signed by the vendor alone, if it is accepted b^' the other, the vendor will be bound thereby. Gale v. Nixon, 6 Cowen, (N. Y.) 445 ; Fenhy v. Stewart, 5 Sandf. (N.Y.) 101 ; S. C. 10 N. Y. Leg. Obs. 40 ; see also, 1 Eq. Cas. Abr. 21, pi. 10 ; 1 Pow. on Con. 286 ; 1 Fonb. 165. Where the memo- randum is signed by the party who seeks to enforce it, but not by him against whom it is sought to be enforced, this is not enough. Bailey v. Ogdens, 3 John. (N. Y.) 399. The terms of a projjosed agreement were reduced to writing and signed by the defendant ; they were assented to by word of month by the plaintiff. Held, to be a sufficient agreement, within § 4 of the English statute of frauds. Smith v. Neale, 2 C. B. (X. S.) 67. HoYT, J. uses the following language in Dykersv. Townsend, 24 N. Y. (10 Smith,) 57 ; (New York Court of Appeals.) As an original question, I should have no 500 APPENDIX. hesitation in saying, in a case where the contract was entirely executory on both sides, and no part of the consideration had been paid, that it was necessary that it should be in writ- ing under this statute," (of frauds) " and be signed by both parties thereto, or their agents, in order to be binding upon either." Page 99, note a. (a) Even where the agreement is written by the party him- self, it is not sufiScient unless he sign it, Anderson v. Har- rold, 10 Ohio, 399 ; Hawkins v. Holmes, I P. Wms. 770 . Belbi/ V 8elhy, 3 Meriv. 2 ; Hubert v. Mareau, 12 J. B. Moore, 216 ; Hubert v. Turner, 4 Scott, N. R. 486. A. and B. proposing to marry, a paper was witten by A. beginning : " In the event of a marriagiy between the undermentioned parties, the following coofmXjmsJm a basis for a marriage settlement, are mutually ^jMtiiasfoJ Then followed several sentences, each in this iow^lnJNJMJmlAfyso and-SQ, B. to have so and so." The name fwMsfHadnwi^ '^^^ subscnbed. The paper was handed to B/'37solicra>r/nio marria^^ettlement was ever executed, and some evidence wg^-^Smred that its execution was waived . Held, thattfterS'^s no contract signed by the parties within the n^eafiing of the statute of frauds, (this was the rulin^jj*... 185 Gruarantor or Surety : What debts provable under his commission 178-184 Kemains liable where the Creditor cannot prove 184 Principal, except in certain cases of costs (note) 184 Estate of liable to the surety paying < 265 Discharged if Surety does not prove 261 Must plead specially 261 Co-Su/rety : ' (See Co-SuKETT.) Bills op Exchange— Guaranty by, how affected by Surety's bankruptcy 181 The different parties to them, and promissory notes, how considered 198 Their discharge as to each other. 213 Their remedies 249 Accommodation — remedy of the parties giving 249 Wherfe they draw against each other's bills 257 Taken up for the honour of the drawer 249 Deemed a payment before their discharge 249 (Of this. Query Appendix, No. IX.) INDEX. 551 B0^»- PAGE. The giving one for a debt not deemed a payment 242 (See Appendix, No. IX. J (See Deed.) Broker — May be an Agent within the statute of frauds. Query ?. . . . 104 c. Characters — Purposes for which given 291 False — given coUusively 298-300 False without collusion 302 How far actionable 302 (Query of this action as interfering with the statute of frauds) 307 Accompanied by a promise to pay 310 By a declaration that the party will not be liable 313 Continuance of liability of the person giving it 313-316 Application of payments after liability expired 316 False, given of servants 318 Statute concerning 318 Clerks — (See Servants.) Collusion — In giving a false character 291-305 Consideration — What it is 3 Not necessary to a deed 2 Necessary to parol engagement 4 Must be stated as proved 5 To bills and notes 5 Blood or natural affection not sufficient 6 New consideration 21-22 Of a guaranty must appear upon the face of it 48 What it must be 52-57 A moral consideration sufficient 63 A mere overture insufficient 57 Constrhctign- , .3 Of promise of guaranty a», ^A iJ-o Continuance— ZT'^t ::::•;:::::::::::::::::: its Of character Contribution- ^^^^ Co-Sureties.) Co-Sureties — . . • ^ n. Costs of a surety not liable under a commission against the principal 552 INDEX. Co-SuBETiES — contmued. Page. The different parties to a bill or note so deemed , 198 (See Bills op Exchansb.) Reliefat law 276 Relief in equity 281 ContFibution among 281 Where one is dead 283 By different instruments 283 Amount of Relief in such case 285 Difference between, and additional surety ; . 285 Counter Security — Surety taking, cannot have an action for money paid 249 D. Debtor — (See Principal.) Declaration — Need not state the promise to be in writing 189 Forms of — (See Pleading) Deed — Guaranty by 1 Requisites to 2 Distinction between, and other writings 3, 4 Guaranty by, how affected by surety's bankruptcy 181, 183 Discharge — Of Bankrupt: Generally 185 By statute 49 G. III. c. 121 265 Of Surety or Guarantor : By time 130-141 By payment 141 By act of the guarantee , 190-198 0{ a person giving a false character: By time 315 By act of the party to whom given 316 E. Equity— Decisions in law and equity upon the statute of frauds the same v 60-63 What it will compel the Guarantee to do for the Guarantor's benefit, and what not 232-242 Amount of relief given in 243 Will relieve the Surety against the Principal. 245 Will compel the Principal to discharge his debt 259 INDEX. 553 Equttt — continued. Page. Will relieve the Surety out of the estate of an absent Princi- pal 262 The best remedy for Co-sureties 281 Will order contribution among 281 Or against the Executor of a deceased Co-surety 283 Evidence — Of the situation and circumstances of the parties, admitted to explain a doubtful guaranty 43 Parol — admissible to add to or explain a written agree- ment 78 Of this, Query ? 81 Except in cases of fraud, suprise, or mistake 83 Admitted to prove the identity of a written agreement 84 And parties and circumstances to which it is applicable. . . . 83 Executors and Administrators — Actions by and against 189 Of a Co-surety chargeable in equity 283 Extent — Of engagement, limitation of 113 By the promise 113 By the nature of the employment 124 (See OONTINtTANCB.) Fidelity— (See Servants.) Forbearance not a sufficient consideration to take a promise out of the statute 27 Form — (See Guaranty.) Fraud— In cases of fraud, parol evidence admitted to explain writing 83 The only ground of an action for a false character 228-230 Frauds, statute of — How guarantee affected by '~° What promise within the meaning of 1" When given after the debt, &c 13-17 When given before or at the time of the debt, &c 29-47 How far applicable to contracts partly performed, note .... 47 Memorandum within f See Memorandum.) Ql 102 Signature required by ■ (See Signature.) Who authoiized to sign for another within 102-108 (See Agent.) 70 554 INDEX. Pkauds, STATtTTB OP — Continued. faojs. May be pleaded to an action upon a guaranty 190 Or given in evidence under the general issue 190 Query, how far the action for a false character interferes with 307 G. GuARANTEB Or Creditor — Compellable to bring an action against the principal debtor. 232 Or to prove a bond against his estate, upon payment by the surety 237 Or upon bringing the money into court 243 But not to assign a bond 233 His general obligation in respect of the surety 235 Action by him against a Surety stayed till he has proved his debt against the Principal's estate 237 Guaranty — What it is, and how made 1 By deed 2 By parol 4 Consideration for 5 How affected by the statute of frauds 7. 8 When and how given 8, 9 Before the debt, &c. incurred 10-29 At or after ■. 29-47 Memorandum of 70-83 Signature of (See Signature, Agent.) Extent and construction of. : 113 Continuance of. 130 13S Payments upon (See Payments.) By or to Partners (See Pahtnees.) In cases of Executors or Administrators (See Executors.) In cases of Assignees (See Assignees.) Actions upon 186-191 Debts upon not affected by stat. 49 Q. III. c. 121 265 Forms of— Forpaytnent of a bill of exchange — (insufficient) 42 Previous to the sale of goods 54 Ibid. Query 65 Subsequent to debt, &c. (insufficient) 54 Guarantor — (See Surety.) Letters — INDEX. 555 L. A sufficient memorandum r,^ By and to whom written ^2 Intention of the party writing 72 78 Referring to other documents 73 75 Contents of 77 Not to be explained by parol 78-83 Referenfte between and the other documents 84 Lien — Of the Guarantee or Creditor 260 Of the Guarantor or Surety 263 Where the guarantee is voluntary by an agent 263, 264 Limitation — (See Extent.) M. Memorandum — Eequisities for, by the statute of frauds 47 Consideration 47-57 Mutuality of contract 64-66 Parties to 66-69 General requisites 69 Form of (See Guarantee Letters.) Not to be explained by parol 78 Mistake — In case of mistake, parol evidence admitted to explain writ- ten agreements 88 , And to show the real credit given in contradiction to an erroneous invoice 82 And to show the actual amount of a debt erroneously stated in a schedule 73 N. Notice — 0. Overture — Of guaranty without request or answer is suflBcienl 57 P. Paroi. — Promise W^^^tisit.. f At common law ' How affected by the statute of frauds «> 556 INDEX. Vi.'ROir-conliMued. Page. May reyive a written agreement that has been abandoned, 72 Evidence: (See Evidence.) Partners — Signature by 103 Power to bind others 149 Authority for 151 For what engagements 151 By deed 156 Change in the Qrm Effect upon guaranties 157 May be provided for 165 Difficulties attending engagements to 174 (See Appendix, No. VIII.) Paett — One of two cannot be agent for the other Ill How to be understood, as used in the statute of frauds 100 To an agreement 47, 4S What parties necessary on the face of an agreement to guarantee 64-66 Payment — Application of 142 Surety not discharged by 142 Bill of exchange deemed 248 But not a bond 249 Query of this. Appendix, No. IX. Performance — Query, whether part performance is equivalent to writing within the statute of frauds 45 Variation between and the promise 146 Pleading — Statute of frauds may be pleaded, or given in evidence un- der the general issue 190 Statute 49 G. Ill, c. 121, must be pleaded by bankrupt principal 265 Declarations : Upon a guaranty in consideration of forbearance — Ap- pendix, No. III. Upon a consideration executed, and executory, variously stated — Appendix, No. III. For false character — Appendix, No. X, XI. Plea : An agreement to receive 10s. in the pound in satisfaction, 198 To a declaration on bond, conditioned for fidelity, that the obligee had taken in a partner 158 Replication to such plea, the embezzlement of the partner- ship money 158, 159 INDEX. 557 Principal or Debtor — Liable to the Surety in equity %*l^ ^"d at law !.".*.'!!!!;!!;;; S CompeUable to discharge his debt to the Guarantor 257 258 Absent Surety's remedy against the estate of. " ' osi Promise, where doubtful ^a Promissory Notes. (See Bills of Exchange.) R. Rblibf. (See Surety.) s. Servants — Characters 3J8 Fidelity 32o SlGKATITRE Of a memorandum within the statute of frauds 88 By the party 89 Only by the party to be charged 98 Some necessary 99 By sealing 99 By mark As Witness 100, 101 By a Partner 102 (See Partner.) By an Agent 103 (See Agent.) Stamp — When necessary 89-320 When not 73 Surety or Guarantor — Liability of Not beyond the extent of his engagement 113 But to the full extent 130 Continuance of -■ • 135 Partners (See Partners.) Executors and Administrators (See Executors.) Assignees (See Assignee, Bankrupt.) Discharge of By payment 141 By act of the Guarantee -•• 191. 192, 230 Belief of Against the Guarantee 558 INDEX. SuEBTT or Guarantor — contimied. Page. In equity 232, 233 By Stat. 49 G. III. c. 121 265 Amount of 243, 281 Against the Principal If solvent By an action at law 245 In equity 259 To wliat amount 243, 262, 267 If Bankrupt Where the Surety has a lien 263 By proving against the estate , 243 Otherwise, the Principal is discharged 267 Amount of Proof. 243 Against Co-surety (See Co-SuBBTT.) Additional surety Difference between him and Co-surety 285 SUKPRISB — la cases of surprise, parol evidence admissible to explain writing 83 T. Tbanspbr — Of a debt not within the statute of frauds 21 V. Vabiation — Between the contract and the performance 146 Verdict — Promise not in writing aided by 190 W: Witness — In an action for false character, the person of whom it is given is a competent witness , 318 Writing — Required by the statute of frauds 7 (See Memorandum — Letters.) Abandoned — ^revived by parol 73 Not to be explained by parol 78 How then to be understood 32 Exceptions 83 Reference between writings 84 Not necessary to the appointment of an agent within the statute of frauds'. ', jq^ Query of tliis, Appendix, No. VI. INDEX TO NOTES OF SECOND AMEEICAI EDITIOI. Acceptance — p^^^. Of principal's note, or bond and mortgage, after judgment against both — effect of 222 Agreement — To apply first money received — if not done, effect upon surety 221 Alteration — Of frame or constitution of any society or partnerships — effect of upon guaranty 164 Application — Of payments 142 In case of pre-existing debt, the existence of which surety did not know 144 Assumpsit — How affected by having taken counter security , 258-261 Bankrupt Act op U. S. — As to sureties 269 Bond — Liability of surety upon, when for one year, though princi- pal held over by agreement 129 Bond and mortgage of principal — acceptance of without as- sent of surety 222 Chancery — Apphcation to 259 Collateral Sbcuritt 218 Commission del credere. 1^2 Composition with Debtor — Effect of. ; 219 Consideration op Guaranty — Statement of ' Proof of, when not necessary 1 When necessary 560 INDEX TO NOTES. Consideration op Guahantt — continued. Page. In case of fraud, may be inquired into 2 Sufficiency of. 63 Moral obligation 63 Forbearance to sue 27 The whole must be to pay the debtor 19 Discharge of original debtor, for third person — good con- sideration 2 CoNSTBTTCTiON of guaranty 134 CoNTBiBnTiON among co-sureties 271 Co-suEBTT, subrogated to rights of surety may terminate the claim to contribution 278 Covenant not to sue 236, 285 Debt — action of may be sustained 189 Discharge of surety 204-212 When he appears on a bond as a principal, how to proceed. 206 False representation of character with intention to defraud . 303, 310 Guaranty — Promise of to incur same liability 12, 13 General and special 68 Overture of 59 To be construed liberally, when 134 Continuing 140 Given in the name of a firm 151 Of promissory note 29G Acceptance of 295 May be negotiable in terms 298 Demand and notice 290 Increase of principal's salary. Effect of upon surety 208, 209 Insolvency op Principal — Payment of note after principal's discharge 269 In case of judgment against principal and surety, after princi- pal's discharge 270 After discharge of co-surety 270 May be inquired of by jury as well as chancellor 270 Judgment — Effect of upon surety's rights 215 Mutuality of contract 64 Neglect to present the claim against deceased debtor's estate 219 Note op Principal — Acceptance without assent of surety 222 Notice, of misconduct of principal on bond not necessary.. . 231 Of acceptance 241 Ovbrtuee of guaranty gg INDEX TO NOTES. 561 Payments — „ , ,. . Page. Application of H2 If surety gives his own note effect of 252 "What will amount to, so that surety may maintain an action 252-256 On pre-existing debt, unknown to surety 144 Partnerships — Guaranty of \^i Change in, how it effects the guaranty 157 Guaranty of when under seal, how executed 156 Promise — Promise of guaranty must be for same liability 12, 13 "Cannot be coupled with promise to do something else not within the statute 19 Made previous to sale, when within the statute 36 Extent and construction of 125 Pkomissort note — Guaranty of 290 Request — When memorandum must contain one 63 May be implied from tenor of guaranty 53, 54 Verbal, afterwards reduced to writing 60 Seal — necessity of, on contract with principal to discharge the surety 204 Special guaranty > 68 Subrogation 275 StTBEENDEB by Creditor of means of payment placed in his hands by debtor, effect of. 217 Surety — Discharge of 204-212 In replevin bond 213 On bond for faithful discharge of duties, discharged by in- crease of principal's salary and change of his duties 231, 232 What he may compel creditor to do 232 His right to assignment of bond 234 On bail bond, right to sue original surety 262 Title— Change of— effect upon guaranty ^°* Verbal Request — May be afterwards reduced to writing °0 71 INDEX TO NOTES OP THIHD AMERICAN EDITIOI. A. Administhator — Page. When, can sue on guaranty 511 Agent — Authority need not be in writing 501 Question of law, whether authority requisite 502 Auctioneer competent to sign memorandum in New York 502 Auctioneer competent to sign for purchaser 503 Appendix op Statutes — Statute 29 Car. 11, chap. 3 457 Statute 9 Geo. IV, chap. 14 457 Mercantile Law Amendment Act, 19 & 20 Vict., 1856 457 Alabama,— Code, 1852, §§ 1551, 1553, 2198 458 Arkansas, — English's Digest, chapter 73, § 1 459 Connecticut,— Revised Statutes, 1849, title 19, § 1 472 Delaware,— Revised Code, 1852, chap. 63, § 6 461 Florida,— Thomp.son's Digest, 1847, 2d div., title 4, chap. 3, § 1 . . 461 Georgia 462 Illinois,— Revised Statutes, 1845, chap. 44, § 1 462 Indiana,— Revised Statutes, 1»S2, chap. 42, §§ 1, 2, 6 462 Iowa,— Code, 1851, §§ 2409, 2410 463 Kansas,— Compiled Laws 1862, chap. 102, § 5 464 KeIltuck3^— Revised Statutes, 1852, chap. 22, §§ 1, 2 464 Maine,— Revised Statutes, 1840, chap. 136, §§ 1, 2, 3 465 Marj'land "^^^ Massachusetts,— Gen. Stat. 1860, part 2, tit. 6, chap. 105 46b Michigan,— Revised Stat. 1846, tit. 19, chap. 81, §§ 2, 4, 5, 6... 467 Minnesota,— Revised Stat. 1866, chap. 41, tit. 2, §§ 6, 8 468 Mississippi,— Hutchinson's Code, chap. 47, art. 1, § 1 4«9 Missouri,— Revised Stat. 1845, chap. 68, §§ 5, 7 469 Nevada,— Laws 1861, chap. 9, §§ 61, 63 • • ■ ■• 470 New Hampsh)re,-Revised Stat. 1842, chap. 189, § 8 470 New Jersey,— Revised Stat. 1847, tit. 17, chap. 1, § 14 471 564 INDEX TO NOTlife. Appendix of Statutes — continued. page. New York,— Revised Stat. 1830, part 1, chap. 8, tit. 2, §§ 2, 4, 471 North Carolina, — Revised Stat. vol. 1, chap. 50, § 10 472 Ohio,— Revised Stat., Swan's ed., 1854, chap. 49, § 5 472 Oregon,— Civil Code, title 8, chap. 8, §§ 775, 776 473 Pennsylvania, — Dunlap's Laws, chap. 59 474 Rhode Island,— Revised Stat. 1844 474 South Carolina 474 Tennessee, — Scott's Ed. of Laws, vol. 1, chap. 25, § 1 475 Texas,— Act of Jan. 18th, 1840 475 Vermont,- Revised Stat. 1839, tit. 15, chap. 61, §§ 1, 3 475 Virginia,— Code of Parton & Robinson, 1849, chap. 143, §§ 1, 2, 476 Wisconsin,— Revised Stat. 1849, tit. 20, chap. 76, §§ 2, 4, 8.... 477 Auctioneer — In New York, competent agent to sign memorandum 502 Must sign in the book, and at the time 502 Competent to sign for purchaser 503 Himself vendee and party in interest, cannot sign 503 B. BankbUptct — Dale of Act, and extract 511 When surety may prove debt under 511 What debts are provable under 511 When endorser entitled to prove claim under 512 Example of where proof may he made 512 Example of note proved against insolvent maker's estate 513 Example of debt that cannot be proved 513 Discharge in, will discharge surety 519 Discharge in, of principal will not discharge surety -526 Surety can recover although principal bankrupt 512 Bond — Surety liable on, only first year, though ofBcer holds over 504 In Georgia, covers acts as long as holding 504 In Kentucky, rule as to judicial bonds 519 Surety must not rely alone upon 532 Bbeach or Contract — Neglect to sue for one breach does not discharge sureties as to others 526 c. Collateral Sbcubitt — Taking of, will not discharge surety 524 Application of . i 532 Confession op Judgment — When secures advances by new and old firm 510 INDEX TO NOTES. 565 Continuing Guaranty — Paqu. " All liabilities to be incurred," creates 504 Examples of 504, 505 Examples of non-con tinuiiig 505 Use of future tense in 505 Application of payments on 506 Contract — Not in writing, when not invalid 482 By agent, referred to in letter 494 Cannot be partly in writing and partly by parol 494 When parol evidence not admissible to vary writing 495 Written instrument supposed to contain the whole contract 495 Interpretation of 496 When not varied by letter 496 Parol evidence may connect various parts. 496 Need not be all upon same paper ■ 496 Broker's clerk may sign in his presence 497 Authority of agent, need not be iu writing 501 Variation of » 507 Not discharged by, if made with assent of surety 507 Must be in writing, pleading need not allege 516 Within statute, pleading on need not allege compliance with statute 516 Cannot be varied, surety may stand upon very terms of 517 Contribution — When co-surety not entitled to 538, 539 When light to, accrues • 538 Joint payees of note are joint endorsers, and entitled to 539 Generally ^f- When there must be 541 One co-surety may bring amount into court 541 Non-joinder of principal Consideration — ^ Of deed acknowledged, grantor estopped 481 Of deed can be recovered, if none paid 481 Failure of, good defense Rule in New York Effect of clause acknowledging ^^^ Guaranty invalid without ^^^ Kule with regard to guaranty ■.■••.•.•••■■ V,' ' W'" ' aha. Of guaranty, when can be the same as of ongmal obligation. . . 484 Need not pass directly from the party giving it *»^ When must be further ^g^ When must be new and distinct ^^^ Moral, insuflBcient • .„, Need not appear, may be shown by parol ^^^ When need not be new, of note 566 INDEX TO NOTES. CoNSiDBEATiON — Continued. Page. When must be new, of note 485 Written guaranty imports, of note 485 Mere forbearance no new, independent of the debt 486 Where new, contract need not be in writing 487 When continuing 489 One cent, not a good, when 489 Promise for a promise, when good 489 Of forbearance, not good unless both bound 489 Promise giving no new rights, is without 489 Forbearance good, to pay debt of infant, if ratified by. 489 Forbearance, when sufBcient for giving note 489 Simple.forbearance not a good, for parol promise 489 Rule with regard to written guaranty in different States 491 Rule in England on this point 491 Rule in New York on this point 491 " Value received," sufBcient statement of 492 May be shown by parol in Vermont 492 Rule in Alabama 492 Doctrine in Waine v. Warlters abrogated 492 Want of, 'niay be proved by parol 492 Partner bound by subsequent promise without 509 Need not be alleged in pleading 516 Continuing, guaiantee cannot revoke 529 Received by only one co-surety 539 Costs — Can be recovered in action by surety against principal 536 Rule in Vermont 536 Rule in Mississippi 537 Rule in New York 537 When surety cannot recover 537 CO-SUEETIES — When an injunction in favor of will be granted 534 Each paying moiety have several action 538 When the relation does not exist inter sese 538 Bound to diligence and good faith 538 Judgment can be enforced against any one of 538 Indemnity furnished to one ensues to others 638 Signing upon promise that another will join 538 When right to contribution accrues 538 Consideiation received by only one, rule 539 When not entitled to contribution ; 539 One cannot discharge indemnity as against others. . . .' 539 Division of liability must be pleaded 539 Rule in Alabama 539 Rule in Kentucky 539 When one, not dischai-ged as to others 540 INDEX TO NOTES. 567 Go-sureties — continued. One may pay debt without suit 540 Discharge of one, when he must still contribute '. 540 When equity of one predominates 54O Rule where, are individual sureties as well 540 May qualify his engagement 54O Kule as to amount each must pay , 541 V One, may bring amount into court 54I Non-joinder of principal 542 Courts — Rule in United States, as to discharge of surety 517 Rule as to mistake in law in United States Courts 521 Rule as to mistake in law in Massachusetts 521 Proper, for revocation of guaranty 530 Creditor — Entitled to securities in hands of surety 534 D. Damages — Measure of, on payment by surety 530 Days of Grace — Need notbe excluded from note 507 Must be excluded in Massachusetts 507 Death — Gift of note, to be enforced after 485 Of principal, will discharge surety 520 Deed — Requisites of 480 Consideration acknowledged, grantor estopped 481 Consideration can be recovered if none paid 481 Generally partner cannot bind by 509 Default — When surety entitled to notice of. 530 Delay — Requested by third person 523 Mere delay will not discharge surety 523 Demand — When surety not entitled to 524 Discharge — Receiving less sum than stipulated for will not 507 Forbearance will not 508 What is not giving time, such as to 508 Surety is not, where remedy expressly reserved 508 Guarantor becoming principal, will 511 Rule in United States Courts 517 Any material change will 51/ 568 INDEX TO NOTES. Discharge — continued. Page. Change need not be injurious to surety 517 Example of surety discharged 517 That which by possibility might materially vary, will 518 What will, guarantee or surety 518, 440, 449 a. Change in contract, without consent 518 Question of prejudice to surety discussed ■ 518 i. Giving time, surety not consenting 518 c. Discharging principal discharges surety 519 Converse of rule, not true 519 d. XJnexcused delay 519 e. Fraud 519 /. By operation of law 519 Confusion, or merger of rights.. 519 Statute of Limitations 519 Discharge in bankruptcy of surety 519 g. Death of principal 520 Ji. Lawful tender 520 i. Compromise 520 j. Accord and satisfaction 521 k. Mistake 521 Rule as to mistake of law in United States Courts, 521 Bule as to, in law in Massachusetts 521 Rule as to, of fact 521 I. By a set-off 521 When principal can claim set-off, surety can do so. . 522 What claims carinot be set-off 522 Must be payment by surety before, will be available, 522 Example of set-off 522 m. Novation 522 n. By the surrender of collaterals 523 To what extent discharged by 523 "What will not, guarantor or surety 523 a. Mere delay 523 Request on part of surety to prosecute 523 6. Receiving a less sum than that stipulated for 524 c. Taking collateral security 524 d. Loss of another security 525 Examples of 525 e. Releasing one of several joint and several sureties does not 525 /. Several breaches of a contract 526 g. Discharge in bankruptcy , 526 When sureties not released by discharge of debtor in bankruptcy 526 h. In general 526 Fact of suretyship not appearing on face of contract, 526 INDEX TO NOTES. 569 Discharge— co»ft'»!(e(i. p^^j^^ Laches of creditor, how far discharges surety 527 When surety discharged on replevin bond 527 When surety bound on replevin bond 527 Discussion — Rule as to _ ggj^ E. Estoppel — When grantor estopped from denying competency to contract in principals 526 F. False Representations — When one making, liable on 545 Express statemepts of an existing fact may be relied on 545 Rule as to belief of party making 545 Amount of credit, negligence 545 May be, by literal speaking of truth 546 Rule in pleading / 546 Gist of an action for 546 Defendant may testify that he did not intend 546 Within the statute of frauds, and must be in writing 547 Need not be sole inducement 547 FOEBBARANCE No new consideration independent of the debt 485 Promise must be accepted, both must be bound 488 Giving no new rights is without consideration 488 Is good consideration to pay infant's debt, if ratified by 488 When sufficient consideration for giving note 588 Simple, not good consideration for parol promise 488 Will not discharge surety • 508 Fraud — As affecting the liabilty of guarantor 479 G. Giving Time — What is not ^08 Surety not discharged, where remedy expressly reserved 508 Guarantor — Liability, how aflfected by fraud 4|' Rule where the instrument is illegal 417 Rule where the original obligation is invalid 417 Is an individual contractor 4 Entitled to notice of default Kule where others are to join 72 570 INDEX TO NOTES. G0AKANTOE — confinued. Page. Cannot insist upon condition, if engagement absolute. 417 How liability measured 418 Absolute, not entitled to notice of performance 418 Discharged, by what discharges principal 418 Entitled to all rights which surety has in equity 418 Liability not divested by ejectment 418 Of note, not a party 484 When indorser is 484 When liability that of surety 484 Expectation and understanding of, rule 489 Offer of endorsement by, rule 491 Wien liable to third party 492 Not discharged by waiver of punctuality 507 Not discharged by contract, if made with assent of surety 507 Becoming principal, guaranty extinguished 511 What will discharge, or surety, 508 When not entitled to demand and notice. 480 When estopped from denying competency to contract in principal, 526 Of interest, extent 527 Of the amount, can recover of his principal 536 GUAEANTT — Ambiguous language used in 479, 489 General, covers accessories and consequences 479 Terms of the contract construed strictly 480 Invalid without consideration 482 Executed after debt contracted 483 Original obligation incurred before collateral undertaking 484 Moral consideration insufiBcient 485 Consideration need not appear, may be shown by parol 485 Written, imports consideration of note 485 Interpretation of 503 What not suflBcient 489 Construction of 489 Explanation of, precise meaning of words 489 Distinction between offer to, and present 491 Form of. 492 Mere request of credit 492 What written memorandum must contain 492 Rule where promise is accepted in writing 492 Letter of, when third party may give credit on 493 Rule when letter specially directed 493 Letter of, proof of notice of acceptance 496 Construed favorably t9 the creditor 503 U.sage of trade in construction of. 504 Use of future tense in 505 INDEX TO NOTES. 571 GcARAXTT — continued. Page. After verdict defendant cannot insist that guaranty is not con- tinuing 506 Rule for application of payments on 506 Rule where some debts guaranteed, and some not 506 Xot discharged by waiver of punctuality 507 Xot discharged if contract made with assent of surety 507 Given by partnership 508 When binding if given by partnership 508 When not binding if given by partnership 508 When usage will justify partner in giving 508 AVhen administrator can sue on 511 Claim on, when provable as a debt due 512 Cannot form the subject of a mutual credit 512 In action upon, and plea of tender, no memorandum need be pro- duced 515 Pleaded, unnecessary to state, made in writing 516 When notice of acceptance of need not be given 516 Can be revoked 529 Rule as to revocation of 529 Notice on revocation of 529 Under seal cannot be revoked 530 Proper court for revocation 530 I. Indemnity — To one co-surety enures to others 538 Cannot be discharged by one co-surety as against others 539 Indorses — When guarantor *°"' "When surety 484 Wlien presumed to be surety 484 Rule in Illinois '■" "^08 When partner may indorse ^^° When he may not indorse 508 Firm not bound by one partners ax;ts 508 Right of, by partnei-, may be shown by circumstances 509 When entitled to prove claim under bankruptcy • • • • 512 Indorser giving his own note, when payment 534 What amount he can recover from maker Interest — , „ j ^u kqi; Effect of payment of, on note to be enforced after death 585 Can be recovered from surety on judgment against him 51/ Rule as to Insolvency — ^ ■ • i i;'?n In action against surety need not prove, of principal • ■ • 5^1J Bule in Mississippi 572 INDEX TO NOTES. IssoLYENCY— continued. Page. Principal insolvent, sureties' estate liable , . . . . 5H When, of principal must be pleaded 540 When, need not be proved. ..-. 530 J. Joint Sureties — Release of one, does not discharge the others 525 Judgment — Belation of principal and surety continues after, against surety, 533 When surety's equitable right of assignment arises 533 May be enforced against any one of co-sureties 538 L. Laches — Of creditor, how far discharges surety 527 Letter — May be shown to third party, who may give credit on 492 Example of general letter of credit 493 Eule where specially directed 493 Referring to other letters , .. 494 When not evidence against the guarantor. . ., 496 Proof of notice of acceptance 496 Example of, sufBcient to take out of the statute 494 Signature of, acknowledging agreement 497 M. Memorandum — What written, must contain 492 Example of, insufBcient » 494, 500 Sufficient, when in letter 494 Example of, sufficient 494 Broker's cleik may sign in his presence 497 Must be authenticated by signature , 498 When printed signature sufficient 497 Proposal signed by party charged may be accepted by parol . 499 Signature of party seeking to enforce, not sufficient 499 Signature of vendor, if accepted, binds him 499 Rule as to signature in Minnesota 499 When both parties must sign 500 Example of, insufficient to take out of the statute 500 Auctioneer competent agent to sign in New York 502 Pinning memorandum to signed leaf sufficient 502 Must be in book, and at once 502 Cannot be signed by auctioneer who is party in interest 503 Presumption of, in pleading 515 INDEX TO NOTES. 573 Memoraxdfm— coMrtmted. P^g^, AVhen plaintiff will not be non-suited for failure to produce. ... 515 Existence of, will be presumed after verdict 515 Need not be produced where tender is pleaded 515 Need not be set out in pleadings 515 Mistake — When surety discharged by 521 Of law, rule in United States Courts.*. 521 Of law, rule in Massachusetts 521 Of fact 521 N. Name — When must appear in memorandum 492 "Written in other part of agreement, when signature 497 Printed, when can be signature 497 Written in pencil 497 New Trial — Defendant cannot insist on, that guaranty is not continuing. . . . 506 NON SUIT Omitting to state time in pleading bad, but not ground for 516 Presumption of memorandum will not be granted if not pro- duced 515 Notice — Sufficiency of. 529 When, of acceptance of guaranty need not be given 524 When guarantor not entitled to 480 Of suretyship will not be presumed 526 On revocation of guaranty 529 When surety entitled to, of default 530 Notice in cases of guaranty and suretyship 434 Example of no, to sureties. 530 When none required, before action against principal 531 When guarantor entitled to, of default 434 When surety not entitled to, of default 434 Novation — When may be urged in discharge of surety 522 Old debt must be entirely extinguished by 522 o. Surety liable for only first term, though holding over 504 In Georgia bond covers acts as long as holding 504 Addition to duties by legislature, does not discharge sureties. ... 518 574 INDEX TO NOTES. P. Parol Agreement — page. What is a 482 Simple forbearance not a good consideration for 488 Proposal signed by party charged, may be accepted by 499 Pakol Evidence — May connect various parts of contract 496 May explain signature by ftiitials 497 When not admissible 495 Collection of cases on 495 Cannot vary written contract 495 Of the language only excluded 495 Sufficient to prove want of consideration 496 Admissible to show contract void 496 Admissible to show contract forbidden by law 496 Admissible to show contract obtained by duress 496 Admissible to show party incapable of binding himself 496 Admissible to show want of delivei'y 496 Partnership — Guaranty given by 508 When guaranty binding, if given by 508 When guaranty not binding, if given by 508 When indorsement by partnership good 508 When indorsement by partnership not good 508 Not bound by guaranty unless authorized by 508 Right to indorse may be shown by circumstances 509 Partner bound by subsequent promise 509 Generally partner cannot bind by deed. 509 Rule when he aflBx a seal in partner's presence 509 One partner acting with the assent of the other 510 One partner can give composition deed under seal 510 When judgment confessed secures advances to new and old firm, 510 Dissolution of, all partners must join in transfer of partnership security 510 Payment — Rights of the surety, before 529 Can demand that creditor prosecute principal 529 Can revoke the guaranty 529 Entire claim must be paid, or no subrogation 529 After, has been made by the surety 531 Whose money the surety pays 531 When surety must prove, of whole debt 531 When surety may pay at once 530, 531 By surety, no notice required before action against principal. . . . 531 Without legal obligation 531^ 532 Measure of damages on, by surety 531 After, surety entitled to complete subrogation 532 INDEX TO NOTES. 575 Payment — continued. What act on the part of the surety vests in him the right to re-^*^^' cover the sum paid 532 Application of 533 Of whom surety must seek reimhursement for 533 Need not be actual payment of money 533 After, surety entitled to securities pledged ' " 534 By note . . . ! ! 534 Indorser giving note in ' * 534 Note given by surety is, as to principal 535 Note given by surety must be accepted as 535 Co-sureties, each paying moiety, have several action 538 Of debt by stranger, he cannot claim subrogation 543 By surety 45^ Payments — Moneys received on continuing guaranty, appUcation of 506 Inference in favor of surety 506 Must in general be applied on first items of indebtedness 506 Fixed, cannot afterwards be divested 506 Rule where creditor holds security for 506 Rule where some debts are covered by security and some not. . . 506 Debtor can control 507 When good to principal as against surety 507 What endorser's right to share in dividends under bankruptcy depends on 512 Must be, before set-off will be available 522 Pleading — Statement of the law on 513 When the action must be brought on the special contract itself, 514 When the count must be special. 514 Need not state that contract was reduced to writing 514 Presumption is that memorandum exisls 514, 515 The plaintiff will not be non-suited for failure to produce mem- orandum 515, 516 Memorandum will be preserved after verdict 515 Where tender is pleaded, memorandum need not be produced.. . 515 Memorandum need not be set out in 515 Declaration not stating time, bad ; not ground of non-suit 516 Where the statute requires writing, need not allege in 516 Where guaranty is pleaded, unnecessary to state made in writing 516 Contract within the statute pleaded need not allege compliance with 516 Example of defective pleading 516 Need not allege consideration 516 Effect of not setting up suretyship in answer 516 Equitable relief does not depend upon notice of suretyship 516 576 INDEX TO NOTES. Pleading — continued. page. Principal and surety sued together in county of surety's resi- dence 517 Interest can be recovered on judgment fronj sureties 517 Wlien complaint not sufiBcient on replevin bond 528 Proper court for revocation of guaranty 530 Co-surety must plead division of liability 539 When insolvency of principal must be pleaded 540 Subrogation, how pleaded and enforced 543 Rule as to, in false representations 546 Pkomissobt Note — Guarantor of, not a party 484 When new consideration not necessary 484 When new consideration necessary 484 Written guaranty imports consideration 484 Holder of, cannot prosecute one surety for the benefit of others, 484 Gift of, to be enforced after death 485 Payment of interest, effect of 485 Signed by surety after becoming due, effect of 488 Estate of surety on joint, liable when 511 Example of, proved against insolvent maker's estate 512 > Discharge in bankruptcy of principal, does not release surety. . . . 526 Surety's estate liable for payment of joint 511 Payment by 534 Indorser giving his own, when payment 534 Given by surety is payment as to principal 535 Facts principal debtor cannot inquire into 534 Must be accepted as payment 535 Principal in, liable to surety for costs 537 Joint payees are joint indorsers, and entitled to contribution... 539 Pkomisb — For promise, when good consideration 488 Giving us new rights is without consideration 488 Time when made essential, but not ground for non-suit 516 Implied, not embraced by the statute 514 R. Kb- APPOINTMENT Surety not bound, though officer holds over, or 504 In Georgia, bond covers acts as long as holding 504 Rboovebt — The amount the guarantor or surety can recover from his prin- cipal 536 Surety cannot recover remote expenses 53g Surety cannot recover more than he pays 53g Surety can recover, although principal bankrupt 536 index to notes. 577 Request — n J. /. Page. vn part of surety to prosecute. 523 Rule as to request to collect from debtor *, 524 Example of insufBcient 524 Implied, when surety pays principal's debt 531 Replevin Bond — Surety discharged by amicable submission 527 When surety bound on ' 527 What no defense to surety on 527 When complaint not sufficient on 528 For what sum judgment can be rendered on 528 Rule in Mississippi as to liability of surety on 528 When a new bond may be executed > 528 Rule in Iowa as to discharge of sureties on 528 Rule in Kentuckyj bond cannot be enforced by motion 528 Failure to state what property taken 528 Revocation — When surety entitled to 529 When surety not entitled to 530 Guaranty under seal , 53O Notice on 529 s. Seal — Rule where partner affix in his partner's presence 510 One partner can give composition deed under 510 Guaranty under, cannot be revoked 530 Sealed Instruments — Distinction between sealed and unsealed 481 Failure of consideration good defense on 481 Consideration, rule in New York , 482 Effect of clause acknowledging consideration 482 When explained by parol proof. 482 Fraud in, who can take advantage of 482 Set-off — When may be used by a surety in his discharge 521 What claims cannot be 522 Contingent damages cannot be 522 Example of set-off 522 Must be payments before, will be available , 522 SiGNATUEE — Printed signature of broker not sufficient 496 When printed, sufficient 497, 498 When printed, not sufficient 498 Printed subscription to summons sufficient in New York 498 Broker's clerk may sign in his presence 497 73 578 INDEX TO NOTES. SiGNATtrnE — continued. Page. Manipulations of telegraph operator suflScient 497 By initials, valid 497 Substantia], sufScient 497 Of letter, acknowledging agreement 497 By vendor, if accepted, binds him 499 Must be signature 497, 500 Bule in Minnesota 499 Name written in other part of agreement 497 AVhen printed name can be 497 Written in pencil 497 When both parties must sign 500 Guiding parties' hand 498 Kequest to assist in signing, need not be proved 498 Explanation of the word " subscribed " 498 By party seeking to enforce, not sufficient 499 Eule in New York with regard to " subscribed " 498 Sealing not signing 500 Reason for this rule 500 By mark 501 Auctioneer can sign memorandum in New York •. 502 Pinning memorandum to leaf signed, sufficient 502 Cannot be by auctioneer who is party in interest 503 Special Peomise — Every actual promise is^ 487 Promises, in fact are, not those impUed by law 487 Statute op Pkattds — When promise need not be in writing 485 When defendant's promise collateral, and not within 486 Whole credit not given to surety, contract within 487 Principal object of promisor not to be surety, stiU not within.. 487 Agreement with debtor for payment to third person, not within, 487 When promise must be in writing 487, 495 Contract cannot be partly in writing and partly by parol 494 Example of letters sufficient to tkke out of 494 Contract need not be all upon the same paper 496 Acts need not be contemporaneous 496 Parol evidence may connect parts of contract 496 Printed signature of broker not sufficient to take out of 496 Manipulations of telegraph operator, sufficient signing 497 Signature by initials valid 497 Signature by letter acknowledging agreement 497 Use of the word " subscribed " in 498 Rule in New York with regard to " subscribed " 498 When printed signature sufficient 497 Signature by party to be bound, sufficient 499 Signature by party seeking to enforce contract, not sufficient.. 499 INDEX TO NOTES. 579 Statute of Fkauds — continued.' page. "When contract must be signed by both parties 500 Example of insufficient memorandum 500 Pinning memorandum to leaf signed by auctioneer, sufficient. . . 502 Implied promises, not embraced by the statute 514 ^\ here, requires writing, pleadings need not allege reduction to. . 516 Contract within, pleaded, need not allege compliance with stat- ute 516 False representations within, must be in writing 547 SrBKOGATION Entire claim must be paid, or no 529 Surety entitled to complete 532 Generally 542 When allowed 542 When not allowed 542 When right to, may be waived 642 Stranger paying debt cannot claim 543 When must be made 543 To what amount 544 How enforced 543 Recognized by courts of law 544 Does not depend upon contract 544 Rule in Kentucky ' 544 Substitution — Generally 544 When takes place of right 544 SUEBTT — Not responsible beyond the terms of their undertaking 479 Cannot claim to be guarantor at law 480 Not entitled to notice of defaults 479 Indorser, when liability that of 484 When not guarantor 484 When indorser presumed to be 484 When holder of note cannot prosecute one for benefit of others, 484 Whole credit not given to contract within statute of frauds 487 Principal object of promisor not to be, not within statute of frauds Liable only during first term, though officer holds over 504 Payments made, inference in favor of 506 Indebtedness cannot be revived 5Ub Cannot impute payments as against debtor &0^ Not discharged by waiver of punctuality. &U^ Not discharged by contract, if made with his assent 507 Not discharged by receiving a less sum than stipulated for 507 Not discharged by forbearance • • • ■ ^" Not discharged by giving time, where remedy expressly reserved, 508 Finn not bound by one partner's acts ow 580 INDEX TO NOTES. SuBBTT — continued. Faqe. On joiut note, when estate liable 511 When may prove debt under bankruptcy. 511 When debts can prove under bankruptcy 511 When only, can prove his claim 512 Exacting new undertaking from appellant, where surety insol- vent 513 Kule where one only has become insolvent, 513 Suretyship must be set up in answer 516 Equitable relief of, does not depend upon notice to creditor 516 And principal may be sued together in county of sureties' resi- dence.'. 517 Must pay interest on judgment 517 Will be discharged, although change not injurious to 517 May stand upon very terms of contract 517 What will discharge grantor, or 518 Discharge in bankruptcy of, will discharge 519 Must pay debt before set-off will be available 522 When may urge novation in discharge 522 Not discharged by mere delay 523 Request on part of, to prosecute 523 Not discharged by the taking of collateral security 524 Entitled to benefit of securities in principal's hands 525 Releasing one of several joint sureties, does not discharge others, 525 Not discharged by discharge in bankruptcy of principal 526 Laches of creditor, hosv far surety discharges 527 When, discharged on replevin bond 527 When, bound on replevin bond 527 What no defense to, on replevin bond 528 When, on replevin bond may be released , 528 Can demand that creditor prosecute principal 529 Can revoke the guaranty 529 When can compel creditor to come into court. 529 Surety on lease cannot compel lessee to proceed by distress war- rant i 530 When entitled to notice of default 530 In action against, need not prove insolvency of principal. 530 When action can be brought against surety for balanfce due .530 Whose money the surety pays, in paying the debt of the princi- pal 531 Request implied where, pays principal's debt 531 When, must prove that he has paid the whole debt 531 When, may pay at once 531 When no notice required from before action against principal, 531 Payment by, without legal obligation 531^ 532 When cannot complain of irregularity 532 After payment by, entitled to complete subrogation 532 INDEX TO NOTES. 581 Sxjs.BiY—conUn'ued. Page. Do not rely solely on bond, but upon implied promise- 532 "When can aid sheriff in finding property of principal 532 Of whom, must seek reimbursement 533 Against whom action can be maintained by 533 Relation of principal and, continues after judgment 533 Need not actually pay money 533 Estate liable for payment of joint note 533 When, has an equitable right to assignment of judgment 633 When question of suretyship cannot be raised 533 Does not loose common law rights 534 Entitled to securities pledged, after payment 534 Creditor entitled to security in sureties' hands 534 Not given by, is payment as to principal.. 534 Of the amount, can recover from his principal 536 Cannot recover remote expenses 536 Cannot recover more than he pays 536 Can recover, although principal bankrupt 536 Can recover costs in action against principal 536, 537 When cannot recover costs - • 537 T. Tender — Plea of, plaintiff need not produce a writing 515 Lawful, when will discharge surety 520 TOBT — Words' debt, default or miscarriage, extend to liability for 484 u. Usage — Of trade in construction of guaranty 504 Days of grace need not be excluded from note 507 Must be excluded in Massachusetts 507 When will justify partner in giving guaranty 508 V. Vaeiation — Of contract ™' Waiver of punctuality does not discharge surety 507 VbBDICT""^ After, defendant cannot insist that guaranty is not continuing, 506 After, memorandum will be presumed 515 Date Due i i ' Library Buroa J Cat. N«. 1137 KF 1223 F31 1872 Author Vol. Fell, Walter William A treatise on the law of meEopy Title cantile guaranties, and of. Date Borrower's Name