author: Rosekrans, J. Denio, Ch. J., (dissenting).

text:
    Cathcart v. The Fire Department of the City of New York.
    'Chapter 291 of 1846, § 20, exempts from the penalties, elsewhere prescribed ' in that act, a vessel receiving gunpowder on freight within the prohibited limits, though such gunpowder be not received from licensed dealers.
    Appeal from the Superior Court of New York City. Action for the seizure and appropriation of 315 kegs of gunpowder. On the trial these facts appeared: The powder was received at 10 A. M., on a vessel bound to Pensacola, then lying at the pier foot of Twelfth street in the city of New York. It was'put on board from a small schooner, loaded the night before from a magazine on the shore of New Jersey. The vessel was cleared and ready for sea. ■ An hour after the powder was received, it was seized by fire-wardens on behalf of the defendant and removed, as forfeited for an alleged violation of the statute relative to powder in the city of New York. The judge directed a verdict for the plaintiff, subject to the opinion of the court at general term. The court there held that the powder was lawfully seized, and dismissed the plaintiff’s complaint. The plaintiff appealed to this court.

      Isaiah T. Williams, for the appellant.

      John H. Reynolds, for the respondent.
   Rosekrans, J.

The provisions of the 20th section of chapter 291 of the Laws of 1846 are broad enough to protect the gunpowder, which is the subject of this action, from forfeiture, under the provisions of the 18th section of the act. The latter section declares that all gunpowder found within the limits specified in the first section of the act, shall be forfeited to the use of the fire department. The limits specified in the first section are that part of the city of New York lying south of a line running through the center of Sixty-second street (Laws of 1849, chapter 206), from the East to the North river. The powder in question was found on board of a vessel lying at a wharf within the prohibited district, but it was received as freight on board the vessel on which it was seized, between the hours of 8 and 11 o’clock, A. H.

The 20th section of the act declares that the penalties and provisions of the act shall not extend to any vessel receiving gunpowder on freight, provided such vessel do not remain at any wharf of the said city, or within 300 yards thereof, after sunset (of the day on which the gunpowder is put on board) or on any other day while having gunpowder, on board. The vessel was ready, and had orders to proceed to sea on the day the gunpowder was received on board, and was only prevented from so doing by the illegal interference of the fire wardens. The powder was seized before 12 o’clock at noon of the day it was put on board the vessel, and we have no right to presume that the vessel would have remained within the prohibited distance of the wharf after sunset of that day.

It is claimed by the defendants that the 20th section only applies to vessels receiving gunpowder on board, within the prohibited district, from licensed dealers in gunpowder, under the provisions of the 3d section of the act. As before remarked, the language of the 20th section is broad enough to include all vessels receiving gunpowder on freight, whether-from licensed dealers or other persons. If it was the intention of the framers of the act to restrict the exemption to vessels receiving gunpowder on freight from licensed dealers, they doubtless would have used language to express that intention, and none other. The act is highly penal, and should be strictly construed.

It may also be observed that to protect from forfeiture under section 13 of the act, gunpowder put on board of vessels within the prohibited district, by licensed dealers, no such-provision was necessary as is contained in the 20th section. The 3d section makes it lawful for licensed dealers in gunpowder to • send it in the day-time, in quantities not more than five quarter casks at one time, through the streets of the city, if covered completely and securely with a.leathern or canvas bag or case, to a vessel within the prohibited district, and by necessary implication, it authorizes such gunpowder to be put on board of such vessel. The language of the section is as follows : “If the same (such gunpowder) be put on board of any vessel within such district, such vessel shall, before sundown, haul into the stream, to a distance of not less than 300 yards from any dock, wharf, pier or bulkhead, and shall not at any time until 8 o’clock of the morning, while such powder is on board, lie within 300 yards of any dock, wharf, pier or bulkhead of said city.” Clearly, as this, section declares it to be lawful for licensed dealers to put gunpowder on board of a vessel within the prohibited district, , it was useless to declare that such gunpowder was not subjected to forfeiture. .The 3d section also provides that a vessel receiving gunpowder on board from licensed dealers shall, before sunset, haul into the stream 300 yards from any dock, and shall not, before 8 o’clock, A. M., while such gunpowder is on board, lie within 300 yards of any wharf in the city. It was unnecessary to repeat these provisions in the 20th section to protect such gunpowder. The 20th section, we must assume (if we would not charge the law makers with consummate folly), was intended to exempt- from forfeiture gunpowder which was not already exempted. The legislature was doubtless aware of the fact that the explosive force of gunpowder on board of a vessel was neither greater nor more detrimental when the powder was put on board by a person having no license, than if put on board by a licensed dealer. There is no reason for exempting from forfeiture powder put on board of a vessel by. a licensed dealer which does not exist in favor of the exemption of the same article put on board by other parties. The legislature is also to be presumed to- have been cognizant of the fact that it is much less hazardous to load powder upon a vessel lying at a wharf, by means of small boats, than by means of carts passing through the streets of the city. It could not have been intended that all the powder put on board of vessels on freight, within the prohibited district, should be taken to such vessels in the mode most dangerous to property and life. It is sufficient to say that such intention is not expressed in the act, but that, on the contrary, the^Oth section declares that the provisions of the act shall not extend to any vessel receiving gunpowder on freight, provided such vessel does not remain at any wharf, dock, pier or bulkhead of said city, or within 300 yards thereof, after sunset of the day the powder is put on board, or on any other day while having such gunpowder on board.

The right to receive gunpowder on freight upon a vessel within the prohibited district, under the conditions specified, being granted, the ordinary reasonable means of enjoying such right should also be held to be granted.

The language of the 20th section would authorize vessels' coming into the harbor of New York from other ports, with gunpowder on board, to tranship such gunpowder to another vessel, subject to the conditions of that section, as to hauling into the stream. The 4th section of the act, however, provides that the commander or owner of every ship or vessel arriving in the harbor of New York, with more than 28 pounds of gunpowder on board, shall, within 48 hours after its arrival, and before such ship or vessel shall approach within 300 yards of any wharf, pier or slip within the prohibited district, cause such gunpowder to be landed by means of a boat or boats, or other small craft, at any place without such district most contiguous to any magazine for storing gunpowder, and cause it to be stored in such magazine. The 5th section authorizes such ship or vessel to proceed to sea within 48 hours after her arrival,or to tranship such gunpowder from one ship to another, for the purpose of immediate exportation, without landing such gunpowder as required by the 4th section, but in case such vessel proceeds to sea, or such transhipment is made, it is declared unlawful to keep said gunpowder longer than 48 hours within the harbor of New York, or to approach with such gunpowder within 300 yards of any wharf, pier or slip within the prohibited district. It may be conceded that these provisions in relation to vessels arriving in the harbor of New York, with gunpowder, are more stringent than those applied to other vessels receiving gunpowder on board under the 3d section of the act, from licensed dealers, or under the 20th section of the act, from such dealers or other persons. And it is difficult to perceive why the legislature should have made it lawful for each and every of the licensed dealers in gunpowder within the city to put five quarter casks or one hundred pounds of gunpowder at one time, upon a vessel lying at a wharf within the prohibited district, and at the same time make it unlawful for the commander of a vessel arriving in the harbor of New York with 29 pounds of gunpowder on board, to approach within three hundred yards of any wharf within the prohibited district, or to tranship such gunpowder upon another vessel within the same distance of such wharf. e

We can only say that the act contains such provisions. Under the 3d section of the act, one hundred licensed dealers in gunpowder might have as many carts, each carrying through the streets of the city and delivering to a vessel lying at a wharf within the prohibited district, at the same time, five quarter casks of gunpowder, or in all five hundred quarter casks, and under the 4th and 5th sections of the act, 29 pounds of gunpowder on board of a vessel arriving in the harbor of New York, cannot approach within 300. yards of such wharf, or be permitted to remain within the harbor of New York more than 48 hours. We can only say that the legislature is omnipotent, except where its powers are restricted by the Constitution.

The 4th and 5 th sections of the act do not, however, by their terms, extend to any other vessels than such as arrive within the harbor of New York with gunpowder on board; they do. not apply to a vessel taking gunpowder on board, outside of the limits of the city of New York, and yet within the harbor of New York. That was the case of the. powder company’s schooner which brought the powder in question within the district mentioned in the first section of the act. The powder was put on board of the schooner within the harbor of New York. It is not necessary, in this case, to decide whether, after this schooner arrived within the district mentióned in the first section of the act, the gunpowder on- board of it was subject to forfeiture before it was put on board of. the plaintiff’s vessel, on'freight. Conceding that it was subject to forfeiture before it was removed from the schooner, while it lay within the prohibited district, it was not found by the fire wardens until it was taken out of the prohibited district, and out of a forfeitable condition, by being received on freight upon a vessel to which the penalties and provisions of the act did not extend. I do not, however, think that the powder was subject to seizure and forfeiture while it was upon the schooner.

The right to put the powder on the plaintiff’s vessel, on freight, is given by the 20th section of -the act, and all means of enjoying that right, not prohibited, are lawful, and the 4th and 5th sections of the act do not apply to the powder company’s schooner or the powder on board of it. The case is omitted in the act, and it is better that it should be provided for by the legislature than that the courts should viólate the unambiguous language of the statute, and usurp a power. belonging to another branch of the Government. The province of the Court is/ms dicere non dare.

We entertain no doubt that the action was properly brought under the 10th section of the act against the fire department of the city of New York for the acts of the fire wardens.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Davies, Wright, Selden and Emott, Js., concurred.

Denio, Ch. J., (dissenting).

The first section of the act in relation to the keeping of gunpowder, &e., in the city of New York, declares it to be unlawful “to have or keep, any quantity of [that article] in any one house, store, building or other place,” in that city, “to the southward óf a line running through the centre of Forty-second street, from the North to the East river.” (Laws 1846, ch. 291.) Section eighteen of the same act subjects every offender against its provisions to a fine of five hundred dollars for each offence, and declares that all gunpowder or saltpetre found within the limits specified in the first section shall be forfeited to the use of the fire department ; and the sixth section provides that in every case of a violation of any provision of the act, where the penalty prescribed thereby for such violation is the forfeiture of any gunpowder to the fire department, it shall be lawful for any fire warden of the said city to seize such gunpowder, in the daytime, and to cause the same to be conveyed to any magazine used for the purpose of storing gunpowder.

If we construe these provisions according to a common intent, the powder in question was legally forfeited, and was properly seized by the parties authorized to make the seizure. The vessel from which it was taken was within the district mentioned, for it was moored at a pier south of the line referred to. The term place, used in the act, is a word of very large signification. Literally, it embraces the hold of a vessel as well as a place of deposit on land; and the words, “ to have or keep,” particularly the former, would properly qualify any kind of possession or custody to which personal property could be subjected. The case, therefore, falls clearly within the language of the statute, and unless a contrary intention can be gathered from an examination of all its provisions, the conclusion of the Supreme Court affirming the alleged forfeiture must be considered correct. So far as I can perceive, the mischief intended to be provided against, which was the hazard of life and property from the explosion of gunpowder, would be about equally great where the place of deposit was a vessel lying at a wharf or pier, or in close proximity to a wharf or pier, as if it were in a store or other place for storage on land. There does not seem to be anything, therefore, in the nature of the case to prevent the application of the statute. There is, as has been argued,. a principle of construction, by which words of a general and indeterminate signification, when used in immediate connection with others of á more definite meaning, are to have a limited interpretation on account of such association; and hence there is considerable plausibility in the suggestion that in the phrase “ house, store, building or other place” the last named words should be held to indicate some fixed place of deposit on land, of the general character of a house, store or building, and should not be considered as embracing a movable thing like a vessel or floating structure, such as this schooner was. If there was nothing else in the act favoring the construction for which the plaintiff contends, I should be embarrassed by this principle of construction, which, besides being supported by adjudged cases, is consonant to common sense and to obvious rules of literary criticism. But the third section of the act provides an exception, which seems to assume that vessels lying near the shore are embraced in the prohibition. It declares it to be lawful for dealers in gunpowder in Hew York to have not exceediñg five quarter casks of powder at one time on the walk in front of their stores, for the purpose of packing it and sending it on board of a vessel within the district; but it requires that the vessel shall, before sundown, haul into the stream a distance’ of at least three hundred yards from any dock or pier, and shall not at any time, until eight o’clock of the morning, while such powder is on board, lie within that distance of a dock or pier. The fourth section provides for the case of vessels arriving in the harbor laden with powder to an amount greater than twenty-eight pounds. Such vessels are required, within forty-eight hours after their arrival, -and without approaching within three hundred yards of any wharf south of the line mentioned, to cause the powder.to be landed in small boats at some place without the limits, to be stored in a magazine. These provisions show, in the first place, that the waters of the harbor were regarded by the legislature as embraced in the district designated in the first section, within which it was forbidden to have or keep gunpowder; and, in the next place, that it was thought judicious, in the interests of tjade and commerce, to make certain exceptions to the otherwise universal rule of exclusion; and the fourth section is very decisive to the same purpose.

The twentieth section of the act is strongly relied on by the defendants’ counsel, as exempting vessels taking on board, gunpowder, under the circumstances, appearing in this case, from the operation of the act. It declares that the penalties and provisions of the act shall not extend to any vessel receiving gunpowder as freight, provided súch vessel do not remain at any wharf in said city, or within three hundred yards thereof, after sunset, or on any other day whilst having gunpowder on board. At first view, it would seem to allow the loading of vessels with gunpowder, without limit as to quantity, of restriction as to the place where the vessel might be moored; and this is its effect, unless it is controlled by the' prior sections to which reference has been made. But I am’ of opinion that it is controlled .by those prior provisions. By section three, powder in limited quantities may be put on board a vessel from any part of the . city; and by section four, vessels arriving in the harbor, having to exceed twenty-eight pounds on board, may cause it to be put into small boats, to be landed at some place without the district; but the vessel so laden is not to approach within three hundred yards of any wharf. The powder in question, which was seized by the firewarden, greatly exceeded in quantity the amount allowed to be put on board a vessel by section three; and, besides, it did not-come from the store of a dealer in the city.

If the 20th section allows only such lading of powder as is permitted by those sections, and I think it is thus limited, it afforded no protection to the plaintiff. I think this-twentieth section was inserted for greater caution, in order to protect, by direct language, the transactions allowed by the third, fourth and fifth sections.

If I am right in these conclusions, it follows that the judgment appealed from was correct, and that it ought to be affirmed. A different construction, however, prevails with the other judges, which leads to the reversal of the judgment, and the award of a new trial; and that will be the judgment of the court.

Balcom, J., dissented; Marvin, J., expressed no opinion.

Judgment reversed and new trial ordered.

CASES DETERMINED IN THE COURT OF APPEALS OP THE STATE OF NEW YORK, June Term, 1863.


source: Caselaw Access Project

author: Denio, Ch. J. Marvin, J., (dissenting.)

license: Public Domain

text:
    Wright v. Garlinghouse.
    The drawee of a bill had agreed with the drawer to accept for his accommodation without finds. To a bill directing the contents to be charged to the account of the drawer, in' the singular number, the defendant subscribed his name as surety, it was discounted at a bank and was paid by the acceptor without funds under the arrangement with the drawer: Held, that the defendant was not liable to the acceptor, nor to one who, having, without the defendant’s knowledge, subscribed the bill as Ms surety, reimbursed the acceptor.
    The defendant cannot be made liable as for money paid to his use without evidence connecting him with some arrangement amounting to a request that the bill should be accepted for the drawer’s accommodation.
    In the absence of any such evidence, which a bill in this form does- not supply, or of a contract outside the bill, the defendant is not liable, except to one who could recover against the drawer in default of the acceptor.
    The case of Suydam, v. Westfall (2 Denio, 205), does not overrule Griffith v. Reed (21 Wend. 502), but was decided upon circumstances supposed to distinguish it from the latter.
    Appeal from the Supreme Court. At the trial these facts .appeared: In the year 1850, one Leman B. Grarlinghouse was engaged at Hopewell, Ontario county, in purchasing wheat and manufacturing it into flour, which he consigned to Hicks & Hathaway, Boston, for sale on commission, and he drew drafts from time to time on them in the course of their business. Garlinghouse, September 21, 1850, drew a draft at two months, payable to the order of Ralph Lester for $2,000. It concluded, “ Charge the same to the account of your obedient servant,” and was signed “L. B. Garlinghouse,” “ J. Garlinghouse, surety.” “ Geo. Wright surety for the above surety,” and was addressed “ To Hicks & Hathaway, Boston.”
    Wright signed the bill without the knowledge or privity of Joseph Garlinghouse. Leman B. Garlinghouse took the bill to Lester who discounted it and paid the proceeds to Leman. The bill went forward to Hicks & Hathaway who accepted it, and at maturity paid it without .funds, under an agreement between them and Leman B. Garlinghouse, that they should so accept and pay, for the accommodation of Leman.
    Subsequently the plaintiff, Wright, paid to Hicks & Hathaway $1,720.70 and took up the draft, and this action was to recover the amount so paid and interest thereon from Joseph Garlinghouse. The judge denied a motion to nonsuit the plaintiff, and the defendant excepted. The court directed a verdict for the plaintiff, and the defendant excepted.
    On appeal to the court at general term, the judgment entered on the verdict was affirmed, and the defendant appealed to this court.

      H. O. Cheesbro, for the appellant.

      E. G. Lapham, for the respondent.
   Denio, Ch. J.

The principal question to be considered is, whether the defendant was liable to Messrs. Hicks & Hathaway, the drawees, and acceptors of the bill of exchange in this case after they had paid the same at its maturity to the holders. It is not contended by any one that either the principal drawer, L. B. Garlinghouse, or either of the other two persons who signed it, are liable on the bill as a written contract. According to the legal effect of that instrument, the acceptors were the parties primarily liable, and the drawer could never be liable to them—-his undertaking being limited to a contract to pay the contents of the bill to the holder upon default being made by the acceptors, and due notice being given to the drawer. It is quite unnecessary to enlarge upon the character of a bill in this aspect of it, as it lies at the foundation of the law of bills of exchange, and has never been disputed by any counsel or judge in the cases which have arisen respecting the liability of one who had become a drawer or surety for the principal drawer of a bill. It is, however, well-settled law that the acceptor of a bill, who accepted and has paid it at the request of and for the accommodation of another person can maintain an action against such other person for money paid to his use at his request; and this is so whether the person so accommodated is a party to the bill or not. To hold this is saying no more than that one paying money for the benefit of another, pursuant to his request or direction is entitled to have it refunded, and can maintain an action if such duty be not performed. Where the payment has been made according to the exigency of commercial paper drawn on the party paying for the benefit of the other party, such paper may furnish a necessary part of the evidence to maintain the action; but the contract itself does not inhere in the paper, but exists outside of it, and is in apparent contradiction to it. It is impossible that there should be any controversy or any difference of opinion respecting these general principles. It follows that the defendant was never liable and never could be made liable to the drawees and acceptors of this bill on the bill itself. But if they have advanced money for his use at his request, he was liable to repay it upon the most common principles of the law.

The particular question in this case, then, is, whether the formal request contained in the bill which the defendant signed, as the surety of the principal drawer, L. B. Garlinghouse, connected with the facts offered to be shown that L. B. Garlinghouse had dealings with the acceptors, and that, in the course of such, dealings," they had agreed with him to accept and pay his bills without funds at the time, in hand, to reimburse them and had accepted and paid this bill, furnishes evidence in law, of money paid to the use of the defendant. I think it does not. The arrangement dehors the bill was one to which the defendant was a stranger. He never desired the acceptors to advance money for him: he never had any dealings with them, and never had any transactions of any kind, with them except to join as a drawer in the bill as the surety of the principal drawer, who actually had these dealings and to whom they had agreed to loan money by paying his bills. It is idle to say that the bill contained a request to pay money for his use which he was to repay, while those who urge that position are obliged to admit that the import of the bill itself after acceptance, is that the acceptors bound themselves to pay money which they themselves owed to the drawers. I should think that upon principle, and according to all legal analogies these considerations would be conclusive in favor of the defendant. But we are to ascertain how the'question stands upon authority, and I am free to admit that upon this class of questions it is peculiarly unsafe to depart from a settled course of adjudication, whatever opinion we might entertain of a particular position if it were res nova.

In Griffith v. Reed (21 Wend., 502), a case was presented in its essential features precisely like the present. One Dixon was the principal drawer of the bill, and he had had dealings with the plaintiffs, the drawees, of the same kind as those offered to be proved in this case, and he was accustomed "to draw on them and to have his bills accepted and-paid with out having funds in their hands. The defendant, Beed, subscribed his name to the bill then in question under that of the drawer, adding thereto the word “ surety.” The form of the bill, like the one in the present case implied that the principal drawer was alone interested in the money which the bill represented. The drawees were to charge the amount • to his account and not to the account of both drawers generally. The plaintiffs accepted and paid the bill and brought their action against both drawers, and it was held that Beed, the surety, was not liable. I refer to the reasoning of Mr. Justice Bkonson, who prepared the opinion of the court, as a full exposition of the principles which appear to me to apply to the case, and to which I'am unable to add anything material. If this case has not been overruled, it is quite decisive of the one before us. But it is argued that the doctrine has been reconsidered and decided the other way in the Court for the Correction of Errors, in Suydam v. Westfall (2 Denio, 205; S. C. in the Supreme Court, 4 Hill, 211). The facts in the two cases are in many respects similar. But they differed in some important particulars. Westfall did not sign the bill in form as the surety with Horton, Bartle & McHeil, the other drawers, though it was proved that he was in point of fact a surety for them; and the bill on its face purported to be drawn on account of all the defendants. A plural word was used, in indicating to whom the money should be charged, which would embrace all who signed the paper. Again, the plaintiffs, the drawees required sureties for the advance, or at least it was understood by the court that they annexed that condition to their agreement to accept, for just before the date of the bill they wrote to Mr. Cook, who became the holder, and who-was the cashier of the bank which was expected to and did discount it, that they had authorized Horton, Bartle & McHeil to draw, but stated that the drafts must be undersigned by such persons as the cashier considered responsible. They, no doubt, assumed that all the drawers would be liable to repay the overdrafts.

The Supreme Court did not consider that these circumstances distinguished' the case from Griffith v. Reed, and acquitted the surety as they had done in that case. This judgment was reversed by the Court of Errors, but not, as I think, upon the ground that the former case of Griffith v. Reed had been wrongly decided. I may remark in the first place that the able counsel for the plaintiffs, Mr. George Wood and'Mr. Bid well, distinguished the case from Griffith v. Reed by the circumstances I have mentioned. They said the form of the bill was different in that case. It contained, they said, a request to charge the amount to Dixon alone, and Reed added the word “ surety ” to his name, and they relied also on the circumstance 'that the plaintiffs required and obtained an additional name. Opinions were delivered by two Senators— Bockee and Folsom — for reversal, and by Senator Portee, for affirmance. Ho reference was, in terms, made to Griffith v. Reed in the prevailing opinions. Indeed, that case is not mentioned in them. But both the senators rely upon the form of the bill. Senator Bockee said that “ the act of Westfall in signing his name as one of the drawers of the bill requesting and directing the plaintiffs to pay $1,000 to the order of 0. A. Cook, and to charge the sum to the account of the drawers, is sufficient in law to make the defendant responsible,” &c. Westfall, he said, had placed himself under the same legal- liabilities both in substance and in form. He relied also strongly upon the letter of the plaintiffs making it a condition to the acceptance that other responsible names, should be added as drawers, from which he inferred that the plaintiffs would not otherwise have made the advances. Senator Folsom also laid great stress upon these circumstances in which the cases are dissimilar. He said there was nothing on the face of the draft which placed Westfall’s undertaking in a different light from his co-drawers, and that the manner in which his name appeared upon it did not leave such an idea. The word “ surety,” he remarked, was not appended to it, and the amount to'be paid “is directed to be charged to his account as well as that of his co-drawers. This was not done to obtain credit at the bank, but to meet the express condition of the letter of credit, whidh Westfall must he presumed to have seen, and inspire confidence in the drawees.” Eighteen senators only were present at the giving of judgment, ten of whom were for reversal and eight for affirmance, the Chancellor not being present. If the two senators who seem to me to have put the case very much upon grounds which distinguish it from Griffith v. Reed, had voted the other way, as possibly they might but for the distinguishing circumstances, the. judgment of the Supreme Court would have been affirmed. I cannot consider the case as really overruling the former one. It is not necessary to affirm the soundnéss of the alleged distinctions, or to determine that the evidence really presented all of the facts supposed by the senators to have been proved. It is enough to dispose of the case as authority to show that the judgment was placed upon grounds which would not disturb the prior decision. We cannot sustain this action without overturning two rules of law so well settled as to be con sidered elementary; first, that the drawers are not liable to the drawees who have accepted and paid the bill upon the bill itself; or for money paid to the use of the drawers except by fórce of some independent arrangement (and the present defendant is not ■ shown to have been a party to any such arrangement;) second, that a surety is never liable except according to the legal effect of the contract signed by him. The defendant by signing this bill put himself in the position of a drawer. His adding the word surety” does not, it is true, relieve him from the responsibility of that position. But when it is attempted to charge him as the borrower of money, or as a party requesting the plaintiffs to accept for accommodation, there must be evidence showing that he had assumed such a relation. The bill does not afford any such evidence and the-other proof does not affect him. We place this judgment wholly upon the form of the instrument, and upon the consideration that there is "no evidence connecting the defendant with any contract, agreement or arrangement, other than the one appearing upon the bill. If it can be shown On another trial that the defendant agreed to become a surety for the purpose of enabling L. B. Garlinghouse to procure an advance of money from the drawees of the bill and signed the bill to effectuate that object, our objections to this recovery would disappear. In such cases the form of the paper and the liability which it prima facie imposes, .are of no consequence. (Reynolds v. Wheeler, 10 Scott, N. S., 561.)

The judgment of the Supreme Court must be reversed and a new trial ordered.

Davies, Weight, Rosekrans and Balcom, Js., concurred —the latter for the additional reason that the plaintiff signed the draft without the knowledge or consent of the previous surety.

Marvin, J., (dissenting.)

The counsel for the respondent insists that Suydam v. Westfall (2 Denio, 205), decided by the late .Court for the Correction of Errors, is decisive of this case; and the counsel for the .appellant claims that the cases are distinguishable, and that Griffith v. Reed (21 Wend., 502), is precisely in point, and that it was not overruled as»an authority by Suydam v. Wesfall. He states with much care what he claims to be the differing facts and argues that they are such as, upon sound principles, lead to different results. It will be proper to notice these cases. Griffith v. Reed, was decided in 1839, by the Supreme Court, upon the opinion of Bronson, J. The case, in its material circumstances, is precisely like the present case with an exception, not perhaps material, viz.: that it does not appear that there was any previous arrangement between Dixon, the principal • drawer and the plaintiffs, that the latter should accept and pay without funds. The next case is Suydam et al. v. Westfall in the Supreme Court (4 Hill, 211), in which Cowen, J., delivered the opinion. • In this case business relations had existed, commencing in 1838, between Norton, Bartle & McNeil, a firm doing business in Ontario county, and the plaintiffs, commission merchants - in New York, the latter often accepting and paying the time .drafts drawn upon them by the former, under an arrangement not necessary to be noticed here. In June, 1839, the plaintiff required that Norton, Bartle & McNeil, should procure an undersigner upon drafts drawn by them upon the plaintiffs. And the bill in question addressed to the plaintiffs, was drawn payable to the order of one Cook, requesting the plaintiffs to pay and charge to the account of your obedient servants, and signed. “Norton, Bartle & McNeil. Albert Westfall.” It was discounted by Cook, and then accepted and paid by the plaintiffs without funds, and the action was against Norton, Bartle & McNeil, and Westfall, to recover for money paid to their use. The Supreme Court held that Westfall was not liable to the plaintiffs.

The next case in the Supreme Court is Wing v. Terry et al. (5 Hill, 160), in which Bronson, J., delivered the opinion of the court. In this case the like business relations existed Between Terry & • Post, the country manufacturers of flour, and the plaintiff, a commission merchant in Albany. The latter became unwilling to accept further for the former, unless they would get sureties. The time draft in question was made, requesting the plaintiff to pay to “our own order” “and charge the same to the account of your humble servants.” It was signed “Terry & Post,” “Z. W. Gurney, Jotham Post,” and indorsed by them. It was accepted by the plaintiff and paid without funds, and the action was against all the signers of the bill, to recover for money paid. In these cases no change was made by the acceptance in the mode of keeping the account. The court held that there could be no recovery by the plaintiff against Z. W. Gurney and Jotham Post. (Griffith v. Reed and Suydam v. Westfall, supra.)

One of the differences between Suydam v. Westfall and the case under consideration, is, that in the former case the direction to the drawer is to charge to the account of your obedient servants, in the plural; and that in the latter it is charged to “ the account of your obedient servant,” in the singular. The argument is that in Westfall’s case all the signers of the bill directed the' drawer to charge the sum- paid to their account, that is, to the account of all. of them, thus showing that they were all joint drawers, directing that money should be paid for their joint benefit, without regard to any account between Suydam & Co., and Norton, Bartle & McNeil: while, in the case under consideration, the request being, in effect, to charge to the account of Leman B. Garlinghouse, it is clear that no money was or could be paid by the drawers to and for the use of any person other than Leman B. Garlinghouse. No question is or can be made that Westfall was in fact a surety for Norton, Bartle & McNeil, and that Suydam & Go. so knew. I have supposed the difference in the bills, as indicated, arose simply from the fact that, in Westfall’s case, the principals in the making of the bill were two or more persons, and they were the persons who as a firm, had an open account with the drawers, while in the case we are considering, the principal in drawing the bill was a single individual, and the person who had an open account with the drawees in Boston. This suggestion finds support in Griffith v. Reed & Dixon, the case relied upon by the appellant’s counsel. In that case the bill was signed “John Dixon, John F. Reed, surety,” and the ■ direction was, “ charge to the account of your obedient servant,” in the singular number.

No notice of this circumstance is taken by Bronson in his opinion, but he puts the decision upon other principles holding that Beed was not liable, which principles will, in a moment, be noticed. Another- (distinction claimed as material is, that in Westfall’s case it did not appear on the face of the paper that he was a surety, and this so appeared in Seed’s case. It does appear in Westfall’s case that he was surety, and that Suydam & Co. knew this fact, and their knowledge constituted the material question. Judge Bronson says, in Seed’s case, “ when it does not appear on the face of the paper that the, party is a surety, notice of the character in which he contracted must, of course, be brought home to the holder before he can be affected by it. In this case the character in which Beed contracted appeared on the face of the bill, and every one into whose hands it came, was bound to know that Dixon was the principal and Reed his surety.”

It is said by the counsel, that it was assumed by the court in Westfall’s case, that he knew that Norton, Bartle & McNeil did not draw against funds and that great weight was given to those facts. It was so argued that he had such knowledge by one of the judges, from facts common to that case and this case, viz.: that the bill was a time bill, four 'months. In this' case the bill is a two months’ bill. I am not aware, however, that much importance was attached to such fact.

It is also added by the counsel that in this case the defendant contracted "as a surety, and that the drawers accepted and paid the bill without funds under an agreement between them and Leman B. Garlinghouse, that they should so accept and pay the draft for the accommodation of Leman B. Garlinghouse, and that this precludes the idea that they, gave any credit to the surety. This is the difference between this case and Heed’s case which I noticed above. Here it expressly appears that the bill was accepted and paid without funds under an agreement with Leman B. Garlinghouse. In Beed’s case it does not appear that there was any such previous agreement. But in Westfall’s case a like agreement does appear; that is, Suydam & Co. authorized Horton, Bartle & McHeil to draw upon them at four months, for an amount specified, the drafts to be undersigned by, &c. Here is an implied promise to accept for Horton, Bartle & McHeil upon their obtaining an undersigner, and if they accepted they would be bound to pay; and for whose accommodation was the acceptance to be made and the bills paid, if, when due, the acceptors should be without funds ? Clearly, I submit, for Horton, Bartle & McHeil, and they kept their account with them alone. It does not appear that in that or this case, the sureties had any knowledge of the arrangements previously made between the drawees' and the principals.

It thus appears that this and the Westfall case, are alike in the only circumstance in which this case differs from the Beed case, a circumstance which I regard as immaterial.

I do not think that such arrangement precludes the idea that in fact the drawees in Boston gave any credit to the sureties. It was such a bill as the one here, that they agreed to accept and pay for the accommodation of Garlinghouse. Why require sureties if the sureties were not to be liable'!

Let us now see upon what principles Griffith v. Reed, Suydam v. Westfall, and Wing v. Terry, were decided by the Supreme Court, and then look into Suydam v. Westfall in the Court for the Correction of Errors.

These cases were all decided upon the elementary principles and theories of the nature of the contracts of parties to a bill of exchange, and the office of a bill of exchange. Starting with the position that its office is to transfer money, which the drawer of the bill has in the hands of the drawee, to .another person, viz., the payee who may order it'paid to his indorsee and so on, and following this up with the principle that when the drawee accepts the bill; he becomes at once primarily liable to all the other parties to the bill, into whose hands the bill may come, and that he is not permitted to' deny that he had funds, except in an action by the drawer, against him, and that having paid the bill, its office is fully performed and no action can be maintained upon it by any one—that .after the original office of a bill of exchange became so far perverted that it was sometimes drawn by one, who had no funds in the hands of the drawee, and accepted by the latter, thus making him liable to all bona fide holders—he was allowed, upon payment of the bill, to maintain his action against the drawer, not upon the bill, but for money paid to and for his use.

Such bills were, and are, however, accommodation' bills. Now, as in the cases decided by the Supreme Court, it appeared that certain persons had signed the bills as sureties for the drawer who was to be accommodated, and the fact of surety-ship was known to the drawee, and as such sureties were to have no money paid for their use, it was held that they could not be made liable to the acceptor for money paid, to and for their use. None of the drawers of the bill were liable upon it, for it contained no promise to pay money to any one. It is a direction to pay to another to charge over. It was held that such sureties were liable to the payee or any indorser who paid for the bill, in case the drawee refused to accept, or failed to pay. In short, their liability was that of surety to their principals who drew the bill, and arose upon their express contract, to wit, that the drawee would accept and pay, and that the acceptor, knowing all .the facts, could not resort to them, upon any implied contract to reimburse him for money paid,' for the use of their principal. Those were the principles, in short, upon which the Supreme Court decided the cases. Suydam & Co. v. Westfall was taken to the Court for the Correction of Errors and was there reversed. And as I understand, the broad principle was established by the decision in that court, that all persons, signing a bill of exchange, are as to the drawee, drawers and liable to him for money paid for their use, if he accepts and pays the bill without funds: and that this is so though, as between the drawers, some are principals and others their sureties, and this so appears upon the paper, or if not so appearing is known to the drawee. That the payment is to be regarded as made for the use of all the drawers, though it should be directed, by the bill, to be charged to the account of all or one of them, and should be so charged, or paid and charged as contemplated by the parties. In short, the money being paid upon the joint order of all, all are liable to the drawee for such payment without funds, in the same manner as they would be upon a note signed by them, except in the latter case the action would be upon the note, in the former upon the implied promise to repay money paid -at their request, and thus for their use.

In all these cases, those who, as between the drawers of the bill were the principals, received the avails of the bill, and the account of the acceptor was kept exclusively with them. Ho new account was opened. Suppose, in Suydam v. Westfall, Norton, Bartle & McNeil had had ample funds in the hands of Suydam & Co. to pay the bill at maturity, could Suydam & Co. have maintained an action against Horton, Bartle, & McHeil and Westfall, upon the ground that they had no funds in their hands? The answer will be at once, no; and why ? Because Suydam & Co. knew that Westfall was a mere surety. If in. truth' .there had been a firm composed of Norton, Bartle, McNiel and Westfall, and they had drawn the bill as it was drawn, and they at maturity and payment had had no funds in the hands of Suydam & Co., the latter could have maintained the action, though Norton, Bartle & McNeil had had ample funds in their hands. Indeed, they would not, without permission, have been justifiable in appropriating any funds belonging to Norton, Bartle & McNiel, another firm, to the payment of such bill.

In this connection I call attention to Branch & McKenna v. Phillips & Co. et al. (16 Pet., 121.) The plaintiffs were factors and commission merchants, and acted for the defendants, and discounted or received, per agreement, the bills of the latter, for large amounts advanced; in some of which bills Horton and Terry joined as drawers. Other bills were drawn by Phillips & Co. alone. The action was upon bills in which Horton and Terry had joined, and the question of their joint liability with Phillips & Co. was not raised, but it was conceded, all through the courts, unless the bills had been paid by Phillips & Co., and this depended upon a question of appropriation of the proceeds of certain cotton, consigned by Phillips & Co. to the plaintiffs. It was held that the bills were paid. This case shows that the plaintiffs, the drawers, were bound to apply the funds in their hands belonging to the defendants, Phillips & Co., who, as to Horton and Terry, were the principals in mating the bills, to the payment of the bills. And the accounts between the principals were gone into largely and fully, &c., &c., and the question of the liability of Horton and Terry, known to the plaintiffs to be the mere sureties of Phillips & Co., was not raised, a point which, according to the decisions (supra) of our Supreme Court, would have been perfectly fatal, whatever may have been the state of the accounts between the principals. It seems the action was upon the bills, and it does not appear that any question was made as to the form of the action. But to return to Suydam & Co. v. Woodfall, in the Court of Errors. I have noticed the distinction in facts existing between that and the present case, and endeavored to show that they are not material: that the decision goes, and must of necessity have gone, to the extent, I claim. It is said tliat the judges, in their opinions, refer to and comment upon some circumstances in that case which are not in this," and that Griffith v. Reed, is not overruled. I have noticed already most of the differences, and remarked upon them. The differences touching the direction to charge to the account of “ servant” or “servants,” and the adding or not adding “ surety " to the name of the person who was surety in fact, are, I believe, regarded as the' most material. As to overruling Griffith v. Reed, that case was not under review, though Senator Porter cites it as an authority fully sustaining the views expressed by him, and so it does; and it is the only case he cites. His opinion is a dissenting opinion. He was in favor of sustaining the decision of the Supreme Court. Two other opinions were delivered, giving reasons for reversal— one by Senator Bockee, in which he refers to no case except the one then being reviewed. He reasons upon general principles, and quotes from the opinion of Cowes, J., when the case was in the Supreme Court, and uses such quotations as sound law and as aiding to produce a reversal. Senator Folsom, in a short opinion,- cites no case. He does remark that the word surety is not appended to West-fall’s name, and that the amount to be paid was directed to be charged to his account as well as that of his co-drawers. He does not claim that Suydam & Co. did not know that Westfall was surety, and I think I have shown that this was all that could be made material. He says that Westfall did not sign the bill to give credit to the bank, but to meet the conditions of the letter of credit which he must be presumed to have seen, and to inspire confidence in the drawees; and that payment was made without funds, relying for repayment, in case of the default of the firm, on the faith of the co-drawers. I do not know why it should be presumed that Westfall had seen the letter of credit. The case discloses nothing from which such inference could be drawn. I agree that Westfall signed to give the paper credit with the drawees, and the only way he could be made liable, in an action by the acceptors, was, by regarding him as a joint drawer of the bill, and liable, whether he was surety or not, and whether his being surety was known to the acceptors or not, for money paid to their use. Griffith v. Reed, was of necessity overruled. I cannot distinguish, in principle, the case under consideration from Suydam & Co. v. Westfall, and I do not think that that case should be overruled. We must, I think, hold, that all the drawers of the bill, in this case, were jointly liable to Hicks and Hatha» way, upon the payment of the bill, for money paid to their use.

It remains to consider the relations between the defendant, Joseph Garlinghpuse, who signed the bill adding surety to his name, and the plaintiff, Wright, 'who signed the bill adding to his name surety for the above surety,” without the knowledge or privity of the defendant, but at the instance, as I infer, of Leman B. Garlinghouse, for whose benefit it was discounted by Lester. It is argued that there was no contract, express or implied, or privity, between the plaintiff and defendant ; that the defendant does not stand in the relation of principal to the plaintiff, and that the relation of principal and surety cannot- arise except by mutual arrangement, or upon request. It is undoubtedly true, as a general rule, that no one can make himself the creditor of another, without his consent or against his will But when one is compelled to do for another what such other ought to have dene, and was bound by law to do, the law will imply not only a previous request to do the thing, but a promise to pay for doing it. (2 Parsons on Cont., 392.)

In Pownal v. Ferrand, Lord Testerden states it as a general principle, that one man, who is compelled to pay money which another is bound by law to pay, is entitled to be reimbursed by the latter. In Exall v. Partridge (8 Term, 308,) three lessees had covenanted to pay rent, and two of them had assigned the lease to the other; the plaintiff’s carriage ’ was upon the premises and the landlord distrained it for rent, and the plaintiff paid the rent and sued all the lessees for money paid to their use, and it was held that he could recover; that as- all the defendants were liable upon their covenant to pay the landlord, and as the payment by the plaintiff was $ compulsory, the law implied a promise by all the defendants to pay him. In this case the plaintiff was liable to Hicks & Hathaway for a demand which it was the duty of the defendant to pay. The plaintiff paid the debt, not voluntarily, but in consequence of a legal liability, and the law implies a promise by the defendant to reimburse the plaintiff. If it should be held that the plaintiff could not, by his own act, make himself surety for.the defendant who was a surety, then the plaintiff and defendant were co-sureties, and the plaintiff can only recover the one-half of the amount he paid. It is not necessary that there should be any contfact and communication between co-sureties, from which to imply a promise to contribute. ' The right to> contribution rests upon the clearest principles of natural justice. It was early established as a doctrine of equity. (1 Story’s Eq., § 493; Dearing v. The Earl of Winchester, 2 Bos. & Pul., 270.)

The principal may obtain any number of sureties, and those who first become sureties may not know that others are also to become sureties, and the doctrine of contribution applies to all co-sureties, and this, too, whether they became so upon the same or divers obligations, and at different times. They must, of course, be sureties for the same debt or demand, and for the same principal., In this case, however, the.question is, can'one become,surety for one who has'already become surety? I have found no case like this. It is well settled that a co-surety may, by his contract, qualify the extent of his liability. (Dearing v. The Earl of Winchester, supra; Craythorne v. Swinburne, 14 Ves., 160.) In the latter case, the defendant applied to a bank for money, for his nephew, upon a bond executed by the nephew and the plaintiff, who was surety. The bank declined to advance the money without further security, and thereupon the defendant executed to the bank his bond, by the condition of which, as construed, he became surety for his nephew and the plaintiff, the surety of the nephew. The plaintiff was obliged to pay the bank, and he then "filed his bill against the defendant, claiming that he, by his bond to the bank, became a co-surety, and that he was therefore liable to contribute. The Chancellor held that the defendant became the surety of both the parties to the other bond; that he was a surety for the surety of the nephew, and for the nephew, and with this construction of the bond dismissed the bill. The case is interesting and instructive upon the doctrine of surety-ship and contribution. It was fully argued and much considered, and it is nowhere intimated that the defendant could not become surety for a surety without the latter’s consent. Had the defendant been compelled to pay the bank, and had then sued the plaintiff for the whole debt and recovered, the case would have been precisely in point.

If it is necessary to show the assent of the defendant to the plaintiff’s becoming surety in the manner he did, it seems to me that such assent may be implied. Leman B. Grarlinghouse desired to raise money, and he drew and signed the bill, and took it to Joseph, the defendant, and he signed, adding surety to his name, and then Leman took it to the plaintiff, who signed it, adding “ as surety for the above surety.” The object of making the bill was to raise money, and the defendant signed it to enable Leman to raise money upon it, and Leman had a right to negotiate it as it then was, if he could, or to procure any additional names. The bill was still in his hands with the right to procure other sureties, and, as I think, an implied authority from Joseph to obtain additional security in any form which should not increase or change his liability upon the paper. If no additional name had been obtained by Leman, the defendant would have been liable, as sole surety, for the whole debt, and had he paid it, would' have had no one but his principal to resort to for reimbursement. He has not been injured, therefore, by his principal’s procuring the plaintiff to become his surety, and I think, the authority of the principal to strengthen the paper, by procuring a surety, for Ms surety, the defendant, may be implied. In Craythorne v. Swinburne (supra), the defendant was acting as the agent of his nephew in procuring the money from the bank, and, if the question I am considering is doubtful upon general principles, it may be that it was not raised in that case for the reason that the principal had the right to give additional strength to the bond, by procuring another surety for himself, .and his surety. My attention has been called to Warner v. Price (3 Wend., 397.) The principal made a note and procured three sureties to sign it. It not being satisfactory to the bank, he took it to the plaintiff, who signed the note adding “ surety ” to his name. He paid the note, and sued the principal and the three prior sureties. It was held that he was a co-surety for the principal, and this was so held from facts and circumstances stated, showing that he must have so understood when he signed the note. The judge, it is true, remarks, in connection with the mode of signing, that they must all be considered co-sureties unless a state of facts be shown from which it shall appear positively, or by legal intendment, that the defendants intended, as to the subsequent signer, to stand in the character of principals. It is not intimated that the relation of principal and surety could not be established between sureties of a common principal, but the contrary is to be inferred from the opinion requiring it to appear, either by legal intendment or positively, that such sureties intended to stand as principals gs to other sureties. This remark was not necessary to the decision, and if sound, I think I have shown, -in this case, an implied authority from the defendant to Leman, the principal, to strengthen the paper in any way necessary to enable him to raise money, which should not injuriously affect the defendant, and that the case is brought within the remark of the judge in Warner v. Price. In all other respects the case is, inferentially, an authority for the positions I have taken.

This is'not the case of one signing a note as the surety of the maker, without his consent or knowledge, and thus attempting to establish the relation of principal and surety. In such a case, the note having become operative as a note, the liability of the maker cannot be changed. But suppose A lends his note»to B, to enable the latter to raise money upon it, may not B procure an additional signer before using the note ? and may he not procure such additional signer as surety for A, thus making the note stronger, so as to enable him to accomplish the object for which A signed it, to wit, the raising of money upon it? It seems to me that he may, and that such authority may well be implied.

Upon the whole, I think the case was properly decided by the Supreme Court, and that the judgment should be affirmed.

Emott, J., also dissented; Selden, J., did not sit .in the case.

Judgment reversed, and new trial ordered.