text:
    Kinney vs. Nash.
    In the action of slander, where the words spoken derive their actionable quality from facts and circumstances extrinsic the words themselves, such facts and circumstances must be proved or the plaintiff can not recover.
    Accordingly, in an action for slanderous words alledged in the declaration to have been spoken of the plaintiff as a constable, and imputing to him misconduct in his proceedings under a bench warrant, placed in his hands for the arrest of an offender who had been indicted, and the words proved were not slanderous except as connected with the indictment and bench warrant, and the plaintiff failed to prove the warrant; held, that he could not recover.
    Words not actionable in themselves do not become so when spoken of one holding a public office, or engaged in a profession or trade, unless they touch him in his office, profession or trade.
    An action for slanderous words imputing to the plaintiff misconduct as a constable, is not sustained by proving words imputing misconduct to him as agent of the executive of this state for the arrest, in another state, of a fugitive from justice.
    Appeal from the supreme court, where Kinney sued Nash for uttering slanderous words. The defendant pleaded the general issue and gave notice of special matter. At the trial before Pratt, J. in August, 1848, the plaintiff had a verdict for §127, which the supreme court sitting in the sixth district refused to set aside, and the defendant, after judgment against him, appealed to this court. The case is stated in the opinion of Jewett, O. J.

      S. Beardsley, for appellant.

      J. P. Whittemore, for respondent.
   Jewett, Ch. J.

The principle is well settled that to maintain an action for words spoken, the words must either have' produced a temporal loss to the plaintiff, by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous punishment, or they must impute some indictable offence, involving moral turpitude, or the breach of some public trust, or with some matter in relation to his particular trade or vocation, and which, if true, would render him unworthy of employment. (2 Kent’s Com. 15, 5th ed.; Brooker v. Coffin, 5 John. 188; Van Ness v. Hamilton, 19 id. 367; McCuen v. Ludlum, 2 Harr. N. J. Rep. 12; Dole v. Van Rensselaer, 1 John. Cas. 330.)

It is also a general rule that “ words not actionable in themselves, are not actionable when spoken of one in an office, profession or trade, unless they touch him in his office, &c. (Com. Dig. Action on the Case for Defamation, D. 27; Doyley v. Roberts, 2 Bing. N. C. 835; Van Tassel v. Capron, 1 Denio, 253.) It is riot enough that the words may tend to injure him in his office or calling, unless they are spoken of him in his official or business character. In Oakley v. Farrington, (1 John. Cas. 129,) the plaintiff was a justice of the peace, and the words were “ Squire Oakley is a damned rogue.” The plaintiff was nonsuited on the ground, that although the words were spoken of a magistrate, they had no relation to his official character or conduct, In Ayre v. Craven, (2 Ad. & Ellis, 2,) the words were laid to have been spoken of the plaintiff in his profession as a physician, and imputed adultery. After verdict for the plaintiff, the judgment was arrested. The court said, that after full examination of the authorities, they thought the declaration ought not merely to state that such scandalous conduct was imputed to the plaintiff in his profession, but also to set forth in what manner it was connected by the speaker with that profession. In Dole v. Van Rensselaer, (supra,) the words were spoken of the plaintiff in his office of sheriff, and affected him in his official character.

The declaration in this case commences with prefatory inducements of the plaintiff’s antecedent good character, and of his being a constable of the town of Hamilton in the county of Madison, and of having faithfully exercised and performed the duties of that office with honesty, &c. and of his innocence of the offences and misconduct imputed to him by the defendant; that an indictment for felony had been found and preferred in the court of general sessions of the peace in that county against one Henry Thomas, for the crime of burglary and larceny; that a warrant, commonly called a bénch warrant, had been regularly issued out of said court and delivered to the plaintiff, commanding him as such constable, in the name of the people, <fec. to arrest said Thomas and bring him before said court to answer to the indictment; and that the plaintiff, in-pursuance thereof, as such constable, used all reasonable efforts and due diligence in seeking for, and endeavoring to arrest said Thomas. It then states the defendant’s malicious intention to injure the plaintiff as such constable, and to cause it to be suspected, &c. that the plaintiff was guilty of being bribed not to perform the duties of his said office of constable, and otherwise of willfully and corruptly neglecting to discharge the duties of said office, <fcc. to wit, on, (fee. at, (fee. in a certain discourse which the defendant then and there had, of and concerning the said plaintiff in the exercise of the duties of his said office of constable of the town, of Hamilton and county of Madison aforesaid, and of and concerning the proceedings of the said plaintiff as such constable aforesaid,• under and by virtue of the warrant aforesaid, in the presence and hearing of the said last mentioned citizens, these false, &c. and defamatory words, that is to say. The words spoken are then set out with innuendos to connect the words with the introductory averments; the substance of which are, that the defendant declared that he would not vote for the plaintiff for the office of constable of said town, on the ground that he had been out west to arrest Thomas upon said bench warrant, and had not arrested him, although he had ample opportunity to arrest him, or that he had arrested him and had let him go, for some pecuniary or other consideration paid him by Thomas. It is then averred that previous to, and at the tinie of publishing the words above mentioned by the defendant, the said persons in whose presence and hearing the words were spoken by the defendant, knew and understood that said Thomas, spoken of by the defendant and referred to in his said discourse, was a person indicted for a felony committed in the town of Hamilton; and that the plaintiff, as constable as aforesaid, went in pursuit of said Thomas, having in his possession a .warrant, commonly called a bench warrant, commanding him as such constable to arrest said Thomas, and that said plaintiff as such constable went in pursuit of said Thomas for the purpose of arresting him, but unavoidably failed to do so; all which the defendant well knew at the time he spoke and published said words in reference to the proceedings of the plaintiff under and by virtue of the said bench warrant, in relation to that transaction, and the said citizens so understood the defendant.

The declaration contains two other counts for speaking words in substance like the words contained in the first count, which, for the purpose of disposing of this case it will not be necessary to refer to. The evidence relied on for a recovery by the plaintiff is as follows:

First. It was admitted that the plaintiff was duly elected and sworn, and acted as a constable of the town of Hamilton and county of Madison, from March, 1845 till March, 1848; that Henry Thomas was indicted for burglary and larceny in the county of Madison, in this state ; and that when the plaintiff, as constable of the town of Hamilton, went to Wisconsin to arrest Henry Thomas therefor, he as such constable was furnished with the requisite papers, and duly authorized to arrest said Thomas, as such constable.

Mr. Lord, a witness, testified that he resided in Hamilton, that he went to vote on town meeting day in 1847, when the defendant asked him if he wanted some votes. He said he erased Kinney’s name, and had some reasons for it; that Kinney had been to arrest Thomas and arrested him and let him go; that he did not vote for any such man as that.

”Mr. Bacon, a witness, testified that at Hamilton, town meeting day, in the spring of 1847, defendant told him that he would not vote for such a man as Tom Kinney, for a man that would be bribed was not fit for office. That the defendant commenced the conversation. He asked witness if he had voted. He said that he would not vote for such a man as Tom Kinney. That a man that would be bribed was not fit for office. Witness asked him. if it was a fact, and he said it was; he could prove it by Deacon Burchard. ■

Mr. Moray, a witness, testified that on the morning of caucus, or town meeting day of 1847, but which he did not know, but thought it was town meeting morning, the defendant was talking about Kinney going out west to arrest Thomas, and he heard defendant say he thought that they ought not to support such a man as Tom, for he went out west and took him, and was bought off. The defendant proceeded to tell what Deacon Burchard said, about his going west. That Kinney had been out west,' and arrested Thomas, and staid all night with him and let him go; and a man that would do that, he would not vote for.

Mr. Murdock, a witness, testified that in the spring of 1847, on caucus day, he was preparing votes for the caucus. The defendant came in and asked who he was preparing votes for, witness replied for Thomas H. Kinney. Defendant said he would not vote for Kinney, for he had been out west and arrested Thomas, and staid all night with him and let him go, and a man that would do that he would not vote.for. He said the story came from Burchard, that he had been to see Burchard, and it came from too good authority for him to disbelieve it. That the defendant was a voter in said town, and had been for several years.

Mr. Green, a witness for the plaintiff, testified that he was acquainted with the parties; that he had heard the defendant say what he said he had learned. It was on the first Tuesday in March, 1847, on the day of town meeting in Hamilton. He had heard there was a story in circulation and went to the defendant to learn what the story was. He found him at Church’s tavern. He told the defendant that he had heard that there were stories in' circulation about the plaintiff, and asked him to state what¿the story was. The defendant said that he had been told by Deacon Burchard that he had been to Wisconsin, and said that certain persons in Wisconsin laughed at him about Tom Kinney, who came there to arrest Henry Thomas. They said that they thought they had a pretty constable in this town ; that Burchard told them that he did not belong to the town that Kinney did. That Burchard said that they told him that Kinney went into the brickyard where Thomas was, and held a conversation for some time with Thomas, and afterwards came off and left Thomas. That Burchard said it was a serious charge, and asked them if it could be proved. That they replied, they guessed there was plenty of proof about there. Witness testified that Thomas was the man indicted for burglary and larceny. That Kinney was a candidate for constable that day, in Hamilton.

Mr. White, a witness for plaintiff, testified that a short time after towm meeting he told defendant that Kinney was going to sue him, that he had got out a writ for him. That the defendant said he might sue and be d—d, he could prove all he had said.

Upon this evidence the plaintiff rested, and a motion was made that the plaintiff should be nonsuited—1st. On the ground that there was a variance between the words proved to have been spoken by the defendant, and those charged and laid in the declaration. 2d. Because the words were spoken in relation to a particular and known transaction. 3d. Because the words were spoken on an occasion that repels the presumption of malice, and no express malice was proved. 4th. Because the words spoken were a privileged communication made by the defendant in the exercise of his duty as a citizen and elector of the town of Hamilton. 5th. Because the facts proved were insufficient to maintain the action. The motion was denied, and the defendant excepted.

The words spoken, as alledged in this case, derive their actionable quality from their relation to facts and circumstances extrinsic of the words themselves. In such case, the plaintiff must, as he has done here, by way of introduction or inducement, state those facts and circumstances ; then aver that the words spoken related to those facts and circumstances, by laying a colloquium, as it is called; and lastly, by innuendos connect such of the words as need explanation with the facts and circumstances previously stated in the declaration. This rule in' its several parts is clearly and concisely illustrated by De Grey, C. J. in delivering the opinion of the court in the case of Rex v. Horne, (Cowp. 672.) In an action upon the ease against a man for saying of another he has burnt my barn,’ the plaintiff cannot, by way of innuendo say, ‘ meaning his barn full of cornbecause that is not an explanation of what is said before, but an addition to it. But if, in the introduction, it had been averred that the defendant had a barn full of corn, and that, in a discourse about that barn, the defendant had spoken the words charged, of the plaintiff, an innuendo of its being a barn full of corn would be good: for by coupling the innuendo in the words with the introductory averment, his barn full of corn,’ it would have made it complete. Here the extrinsic fact that the defendant had a bam full of corn is the introduction or inducement ; the allegation that the words were uttered in a conversation relating to that barn, is the colloquium; and the explanation that the words thus spoken were applied to that barn full of corn, is the innuendo.” (See Van Vechten v. Hopkins, 5 John. 221; Bloss v. Toby, 2 Pick. 320.) These averments, which are necessary, by way of inducement, to the action, must be proved. (2 Phil. Ev. ed. 1843, p. 240 ; 3 Steph. N. P. 2572; Sellers v. Till, 4 Barn. & Cress. 655.)

To do this in this case, it was necessary to prove that, at the time alluded to, the plaintiff was a constable of the town of Hamilton; that Thomas had been indicted at the place and for the crime alledged; that a bench warrant for the arrest of Thomas for that cause had been issued and delivered to the plaintiff to execute as such constable. The evidence does not go so far as to show that a bench warrant had been issued for the arrest of Thomas, or delivered to the plaintiff as a constable to execute. All that there is, on this point, is contained in the stipulation for the admission of certain facts upon the trial, as follows : “ That when the plaintiff, as constable of the town of Hamilton, went to Wisconsin to arrest the said Henry Thomas therefor, he, the said plaintiff, as such constable, was furnished with all the requisite papers, and duly authorized to arrest said Thomas as constable.” If the admission is not in itself wholly insensible, it can mean nothing more than that at the time the plaintiff was in the state of Wisconsin for the purpose of procuring the arrest of Thomas and to bring him to the county of Madison to answer said indictment, that he went there as the agent of the executive authority of this state to demand Thomas of the executive authority of Wisconsin, as a fugitive from justice, and as such was furnished with a copy of the indictment found against Thomas, certified as authentic by the governor of this state. (1 Story’s L. U. S. 284.) Or at most, it proves that he acted in Wisconsin under some authority derived from the governor of that state, to arrest Thomas after such demand had been made. He could not, in the nature of the case, have acted as a constable of Hamilton, or had any authority as such, to make such arrest in Wisconsin, either under a bench warrant or other process issued by any court in this state. Wisconsin is situated without the jurisdiction of our courts, its process, or ministerial officers.

I can not think that the fact that a bench warrant had been issued and delivered to the plaintiff to execute as a constable of Hamilton, for the arrest of Thomas, is proved by the stipulation, or that the admission which was made tends to prove it. If it be admitted that the words “ he went west to arrest Thomas, and arrested him and let him go,” &c. are equivocal as to the place where the defendant charged the arrest to have been made, or the omission to arrest took place, whether in this state or Wisconsin, it was no ground to submit the cause to the jury; for if there was no evidence of the issuing and delivery of a bench warrant to the plaintiff, in whatever place the jury should find from the evidence the offence or misconduct was charged to have occurred, the plaintiff could not recover in the absence of evidence of the issuing and delivery of the warrant. I am therefore of opinion that there was a failure of evidence to authorize the jury to find a verdict for the plaintiff; and that upon that ground the judge at the trial erred in refusing to grant the motion for a nonsuit. The judgment must be reversed, and a new trial granted—costs to abide the event.

Ordered accordingly.


source: Caselaw Access Project

author: Shankland, J.

license: Public Domain

text:
    Dwight vs. Newell and others.
    A specific equitable lien upon land is entitled to a preference over a subsequent legal lien by judgment. Semble.

    But an equitable lien created to secure an antecedent indebtedness, e. g. an agreement by a debtor to execute a mortgage to his creditor, is not entitled to a preference over a lien by judgment where both attach upon the land at the same time.
    A. holding a mortgage on real estate, and having obtained a decree of foreclosure and sale, in anticipation that he should acquire the title at the sale to be had under the decree, agreed with his creditor B. to execute to him a mortgage within ten days after he should so acquire the title. A. acquired the title and gave the mortgage accordingly. Held that B. was not entitled to a preference over another Creditor of A. by judgment docketed before the agreement to exeecute the mortgage was°made.
    Appeal from the supreme court, where the case was as follows : Lewis F. Allen, in May, 1837, held a mortgage on a part of lot number one in the city of Buffalo, and having instituted proceedings for a foreclosure of his mortgage, obtained, on the 27th day of that month, a decree in equity for the sale of the mortgaged premises. On the 8th day of July, 1837, a judgment was docketed in the supreme court in favor of Seth Grosvenor and Henry B. Starr, against Allen and two others, for $1132,37. On the 20th of July, 1837, Allen, in expectation of acquiring a title to the mortgaged premises on the sale thereof, and being indebted to the Bank of Michigan in the sum of $5,564,31, agreed to secure the payment of that debt by a bond and mortgage on a part of the premises within ten days after he should acquire title to them. On the 1st of August, 1837, the mortgaged premises were sold under the decree of sale, and bought by Allen for $34,181,84, and on the 15th of September following were conveyed to him by the master. On the 20th of November, 1838, the mortgaged premises not having been redeemed under the act of May 12, 1837, Allen, in accordance with his agreement, gave a bond and mortgage to the Bank of Michigan, dated on that day, for $5,564,31, which was duly acknowledged and recorded in the clerk’s office of Erie county on the day of its date. On the 27th of July, 1839, the Bank of Michigan, for a full and valuable consideration, assigned the bond and mortgage, “ the moneys due and to become due thereon, and all the right, title and interest of the bank in, to, or under, and by virtue of the same,” to Henry Dwight, the appellant.
    Besides the judgment of Grosvenor and Starr before mentioned, numerous other judgments were recovered against Lewis F. Allen, separately or jointly with others, and became liens on his real estate; two before the judgment of Grosvenor and Starr, and the others after it. On the 27th of January, 1840, the appellant filed the bill in this cause in the court of chancery, against Allen and others, to foreclose the mortgage before mentioned, which he held as assignee. The bill contained a statement of the agreement to mortgage, made by Allen with the Bank of Michigan, on the 20th of July, 1837, his subsequent acquirement of title, the giving of the bond and mortgage in pursuance of the agreement, and the assignment thereof to the appellant. On the 28th of January, 1840, the appellant filed in the clerk’s office of the county of Brie a notice of lis pendens, according to the practice of the court.
    On the 28th of March, 1840, the sheriff of Erie county, by virtue of an execution issued on the judgment in favor of Grosvenor and Starr against Lewis F. Allen, sold the title and‘interest of the latter in the whole lot before mentioned for f> 1100. Grosvenor and Starr, the plaintiffs in the execution, became the purchasers. On the 28th of June, 1841, the judgment creditors of Allen redeemed the premises from Grosvenor and Stariv and from each other, the last of which redemptions was made by the respondent George W. Newell, receiver of the City Bank of Buffalo ; and the sheriff of Erie county conveyed the premises to the respondent in accordance with the sale and his redemption. In November, 1842, the appellant filed a supplemental bill, made Newell, receiver, &c. a party, and brought all the facts before the court.
    The main question in the cause was whether the appellant’s special equity, arising under the agreement to mortgage made by Allen on the 20th of July, 1837, subsequently to the docket of Grosvenor and Starr's judgment, but prior to its becoming a lien on Allen’s property, should be preferred to the respondent Newell’s title derived under that judgment. The supreme court sitting in the eighth circuit, after hearing the cause on pleadings and proofs, dismissed the original and supplemental bills, with costs. The plaintiff, Dwight, appealed to this court.
    S. A. Foot, for the appellant,
    cited Ellis v. Tousley, (1 Paige, 280, 283, 284;) In the matter of Howe, (id. 127,130;) Delaire v. Keenan, (3 Dessauss. 74;) White v. Carpenter, (2 Paige, 217, 266, 267.)

      J. L. Talcott, for the respondents,
    cited 2 R. L. 359, § 6; 1 Cowen, 592; Stow v. Tifft, (15 John. 458;) 1 Story’s Eq. § 61 a, [§ 64. ed. of 1846.]
   Shankland, J.

It seems to me, that to give the complainant the relief he asks for, Would be going further than any adjudged cases, and further than the principle upon which they are founded will warrant. The furthest the courts have yet gone, is to give a prior specific equitable lien a preference over a subsequent legal lien by judgment, which is only a general lien. (1 Paige, 125, 280.) But we are asked to displace the lien of a judgment, prior in date to the creation of the equitable lien, and also prior in its attaching as a hen on the land in question, on the subtle notion that as both demands existed prior to the title vesting in Allen, both demands attached as liens at the. same instant of time; the one as a general, and the other as a special lien; and that the latter is, as a special lien, entitled to a preference. But I am of opinion that in order to entitle the equitable lien to this preference, it should at least have the merit of having been created on some new consideration advanced bn the faith and credit of the specific lien then created—and not be founded on an old debt. Without such an element in the complainant’s case the equities of the parties are equal, and the defendant must be left to enjoy his legal rights.

There is another consideration which will deprive the complainant of the remedy he seeks. His agreement with Allen permitted the latter to give the mortgage any time within ten days after Allen was seized of the title. At the date of this agreement the judgment was in existence, and the parties must be deemed to have contemplated the state of things which would have been produced, if the contract had been carried out according to its terms. The judgment under which the defendants claim would attach as a lien, the moment Allen obtained the title, but the complainant’s mortgage not until its execution. Thus the defendant would have had the oldest lien. For the above reasons the decree should be affirmed.

Decree affirmed.


author: Ruggles, J.

text:
    Shaw and others vs. Tobias.
    In an action upon a statutory security, as a replevin bond, the declaration need not aver in terms that the bond was taken in pursuance of the statute. It is enough if the instrument, as set forth, is in accordance with the statute.
    In pleading it is unnecessary to state matters of which the court is bound to take notice, such, for example, as the common or public statute law.
    In criminal prosecutions fof an offence created by an act of the legislature, a reference to the statute is required in order to inform the accused of the nature and character of the offense; and so in penal actions founded on statute. Per Rugóles, J
    In an action on a replevin bond against the surety, the declaration need not state that the bond was executed on behalf of the plaintiffs in the replevin suit.
    And when the action is upon a bond executed to a coroner, the declaration need not state that the writ of ieplevin was directed to the coroner. That fact will be presumed from the giving of the bond to him, the commencement of the suit in replevin, and the talcing of the property under the writ.
    Although the statute requires two sureties in a replevin bond, the party for whose benefit it is taken may Waive the objection that there is only one, and if he does, the makers of the bond can not resist a recovery thereon on that ground.
    A replevin bond with only one swretnj is not within the statute declaring void certain bonds, agreements, &c. taken by sheriffs and other officers, colore officii.

    On appeal from the superior court of the city of New-York, where Shaw and others, as assignees of Brown, late coroner of the city of New-York, sued Tobias upon a bond given on the commencement of an action of replevin. The questions arose upon the declaration, which set forth a bond executed by the defendant in the penalty of $1283, with a condition framed according to the statute in such cases. It then averred that the defendants in that suit (the present plaintiffs) recovered judgment for the sum of $1378,98 damages and costs; that execution was issued and returned unsatisfied; and that afterwards the coroner assigned the bond to the plaintiffs. The breach assigned was the non-payment of the sum recovered. The questions are stated in the opinion of Ruggles, J.

      A. S. Garr, for appellant.

      G. C. Goddard, for respondents.
   Ruggles, J.

This was an action of debt on a replevin bond executed by the defendant Tobias to one of the coroners of the city of New-York, dated 14th September, 1837, in the penalty of $1283, conditioned for the prosecution with effect and without delay of a replevin suit which Georgiany Mahoney and George Trull had commenced in the New-York common pleas against the plaintiffs in this suit, for taking and detaining certain goods, and for the return of the property replevied if return should be adjudged, and for the payment to the defendants in the replevin suit (who are the plaintiffs here,) of all such sums as might be recovered by them against Mahoney and Trull in that suit.

The defendant Tobias pleaded non est factum and eight other pleas, the last of which being the 9th was, “ that there was not, at any time, any sufficient consideration for the defendant’s making of the said writing obligatory.” Issues of fact were joined on the first eight pleas. To the ninth the plaintiffs replied “that there was a sufficient consideration for the defendant’s making the said writing obligatory.” To this replication the defendant demurred, assigning several causes of demurrer. The court below gave judgment for the plaintiffs on the demurrer. The issues of fact were by consent of parties referred to a referee, who reported in favor of the plaintiffs on every issue, and final judgment was rendered accordingly. The defendant moved in arrest of judgment and his motion was denied.

The points presented by the defendant’s counsel for consideration by the court, do not raise any question as to the sufficiency of the plaintiffs’ replication to the 9th plea. The defenuant relies exclusively on showing that the first fault in pleading was in the plaintiffs’ declaration: and that that being fatally defective, the court below ought to have rendered judgment for the defendant. The other causes of demurrer assigned may therefore be laid out of the question. If the declaration is substantially defective, the defendant may, I think, according to the case of The Auburn and Owasco Canal Co. v. Leitch, (4 Denio, 65,) avail himself of the defect under his demurrer to the replication. (See also Life v. Becker, 1 Denio, 568.) The first objection to the declaration is, that the bond does not appear to be a statutory obligation on which an action could be maintained by the assignees in their own names.

There is no averment in the declaration that the bond was taken in pursuance of the statute. This averment is generally found in the printed precedents of declarations on instruments of this kind; but it is unnecessary. The bond, as stated and set forth hi the declaration, appears to be a bond within the statute; which is a public act of which the courts are bound ex officio to take notice. They can not but see that the bond is such as the statute prescribes and authorizes. An averment that it was made in pursuance of its authority, would be only a repetition of what is otherwise sufficiently set forth. It is never necessary in pleading to state matter which the court is supposed to know, and of which it is bound to take notice, and therefore it is unnecessary to state mere matter of common or public statute law, (Stephens on Plead. 351, 2, 3.) A promissory note derives its negotiable quality in England from 3 and 4 Ann, ch. 9, and here from our own statute. (1 R. S. 768.) But in England it is not necessary in a declaration by the indorser against the maker to state that the note was made in pursuance of the statute, or that the defendant became liable to pay by force of the statute. (Chitty on Bills, 578, Springf. ed. of 1836.) Nor am I aware of any decision in this country declaring such an averment necessary. In criminal prosecutions for an offence created by an act of the legislature, a reference to the statute is required for the purpose of informing the defendant, distinctly, of the nature and character of the offence ; and so in penal actions founded on a statute, for substantially the same reason. But this action is founded not on the statute but on a contract into which the defendant voluntarily entered, and he can not be supposed to be unacquainted with its legal force and effect. The defendant objects to the declaration as defective in not containing an averment that the defendant executed the bond in behalf of Mahoney and Trull, the plaintiffs in the replevin suit. But it appears by the declaration, that the bond was given for the prosecution of the replevin suit, and by which Mahoney and Trull were enabled to take the goods in controversy in that suit out of the hands of the plaintiffs in this suit, and which, without a bond, could not have been done. No further averment can be necessary to show that the bond was executed in behalf of the plaintiffs in the replevin.

Another objection to the declaration is the want of an averment that the w rit of replevin was directed to the coroner. It is true that unless the coroner had the writ he had no authority to take the bond. But the declaration shows that on the giving of the bond in question, the replevin suit was commenced, the plaintiff’s goods taken, the suit removed from the common pleas into the supreme court, and judgment rendered there in favor of the present plaintiff for their value. The coroner then must have had the writ, because he could not have taken the goods without having the bond and the writ also. The giving of the bond by the defendant to the coroner is at least prima fade evidence that the writ was directed to him, and the declaration is therefore sufficient.

The statute requires the bond to be executed with sufficient sureties.” Under this statute it has been decided that the defendant in replevin is entitled to two sureties in the replevin bond; and if in this respect the plaintiff fails in complying with the statute, the defendant may move to set aside the plaintiff’s proceedings, but the plaintiff will have leave to amend. (Whaling v. Shales, 20 Wend. 67.) Or the defendant may except to the sufficiency of the bond. (18 Wend. 523.) But it is no where decided that the bond is void for not having two sureties. Nor can the plaintiff’s proceedings be set aside as irregular on the ground of such a defect in the bond, unless the defendant makes the application in season, and before he waives the irregularity by pleading. The provision in the statute requiring two sureties, and the power of exception to their sufficiency, or of moving to set the plaintiff’s proceedings aside, are provisions for the benefit and safety of the defendant in replevin. If the bond is substantially good, without the sureties, and entirely satisfactory to the defendant, it would be absurd to require him to take proceedings to make it better. He may waive a strict compliance with the statute by the plaintiff in regard to those matters which are unimportant to himself. But after the plaintiff has obtained possession of the property in dispute by acting on the bond as a lawful and valid security, neither he nor his surety ought to be permitted to get rid of it by alledging that it is not so strong or so perfect as the defendant might have required him to make it. It is enough that it contains all the essentials of a valid contract, and answers all the purposes intended by the statute.

Sheriffs and other officers who take bail bonds and jail liberty bonds, are held to a strict compliance with the statutes under which those securities are taken; but for a reason which does not apply to the present case. Those bonds are executed by persons who are under legal restraint; and for the purpose of avoiding confinement within prison walls. The parties to those contracts do not stand on equal ground in making them. The party executing the bond is in the power of the officer; and a strict compliance with the statute is necessary to prevent oppression and abuse of that power. But a replevin bond is given by a plaintiff who is under no restraint. It is purely voluntary, and the danger of abuse is on the other side, for by means of the bond the plaintiff is enabled to take property out of the hands of the defendant before the right has been adjudged between the parties. The obligor in this case does not object that the defendant has violated the statute, but that it was not c mplied with on his own part, and this after he or his principal has had the benefit of the bond in all respects as if the statute had been complied with. Such an objection can be of no force. The bond, therefore, is valid and binding, and if the declaration is defective at all it is so only in matters of form, of which the plaintiff can not avail himself on a demurrer to the replication, or in arrest of judgment.

Judgment affirmed.

         See Winter v. Kinney, (ante, vol. 1, p, 365.)


author: Bronson, J.

text:
    Turner vs. Roby and others.
    In pleading the judgments of inferior courts of special and limited jurisdiction, it is necessary to show that the court not only had jurisdiction of the subject matter, but that it also acquired jurisdiction over the person of the defendant; and in this respect there is no distinction between a declaration and any other pleading.
    The cases of Smith v. Mumford, 9 Cowen, 26,) and Stiles v. Stewart, (12 Wend. 473,) commented on and explained.
    The "proceedings, however, need not be set out. After stating the facts which show jurisdiction, it is enough to say taliter processwm fait, &c.

    A general averment of jurisdiction is not sufficient. The facts on which it depends must be stated.
    Where, however, the judgment of the inferior court was against the plaintiff for costs, and an action is brought on the judgment to recover such costs, the pleader need not aver jurisdiction of the subject matter. Such a case is an exception to the general rule.
    To a declaration in assumpsit the defendant pleaded a former recovery, stating, that the plaintiff impleaded the defendant in a certain justice’s court, and such proceedings were had that the plaintiff recovered a final judgment on the merits for a certain sum upon the same cause of action. Held, that the plea was b"ad in substance.

      Turner brought assumpsit against Roby and others in the recorder’s court of the city of Buffalo, and declared for work, labor and materials, goods sold and delivered, <fcc. The defendants pleaded, that theretofore, to wit, on, &c. at a court held before Pearly A. Child, one of the justices of the peace of the city of Buffalo in and for the county of Erie, at the city of Buffalo in said county, the said plaintiff impleaded the said Roby, one of the defendants, for the same identical cause of action in the. declaration mentioned, and such proceedings were thereupon had, that afterwards, to wit, on, &c. the said plaintiff, by the final judgment of the said court upon the merits, recovered against the said Roby the sum of one hundred dollars damages for the same identical cause of action in the said declaration mentioned. The plaintiff replied that he did not recover final judgment upon the merits for the same cause of action as alIedged in the plea. The defendant demurred and the plaintiff' joined in demurrer. The recorder’s court gave j udgment against the plaintiff on account of the insufficiency of the replication. Which judgment was reversed by the supreme court sitting in the eighth district, The defendants appealed to this court.

      J. L. Talcott, for appellants.

      I. T. Williams, for respondent.
   Bronson, J.

Assuming that the replication is bad for duplicity, the plaintiff was still entitled to judgment on the ground that the plea is insufficient. In stating the former recovery against Roby, it is not shown that the justice acquired jurisdiction over the person of the defendant. In pleading the judgments of inferior courts of special and limited jurisdiction—and such are our justices’ courts—it is necessary J;o show that the court not only had jurisdiction of the subject matter in controversy, but that it also acquired jurisdiction over the person of the defendant. The only cases in this state which seem to militate against the rule are, Smith v. Mumford, (9 Cowen, 26,) and Stiles v. Stewart, (12 Wend. 473:) but both of those cases came before the court after verdict. And besides, in both cases the attention of the court was confined to the question of jurisdiction of the subject, and no notice whatever was taken of the question of jurisdiction over the party. If the defect in pleading was not cured by the verdict, as I am inclined to think it was, still the most that can be said of either of those cases is, that the court overlooked a question which should have been considered ; and not that the point was decided, either one way or the other. It has sometimes been supposed that the case of Stiles v. Stewart makes a distinction between setting up a judgment in a declaration, and in a plea; and that in the former case jurisdiction need not be shown, though it must in the latter. That would answer the plaintiff’s purpose in this case, for the question arises on a plea. But there is nothing in the distinction. With a single exceptiomwhich will be noticed hereafter, whenever the judgment of an inferior court of special and limited jurisdiction is pleaded—whether in a declaration or any other pleading, it is necessary to show that the court had authority, both as to subject and person, to render the judgment. The general rule is so fully settled, and of such every day application, that I need not cite books to prove it. It was. formerly held necessary to set out the proceedings at large ; but in . modern times it is enough to state the facts which show jurisdiction, and then say, taliter processum fait, the judgment was rendered.

The plea alledges that the plaintiff impleaded Roby. But that is no more than saying, he sued or prosecuted him by course of law, or due course of law; (Tom. L. D., and Bouv. L. D., Implead;) neither of which is sufficient. It is not enough to alledge, in general terms, that the court had jurisdiction; but the facts on which jurisdiction depends must be stated. I will only refer to such cases as happen to lie before me. (Cleveland v. Rogers, 6 Wend. 438; Sackett v. Andross, 5 Hill, 327; Van Etten v. Hurst, 6 id. 311; The People v. Keober, 7 id. 39 ; Whitney v. Shufelt, 1 Denio, 592.) In pleading a judgment in Patrick v. Johnson, (3 Lev. 403,) the allegation was, that the defendant in that action was indebted to the plaintiff within the jurisdiction of the borough court, which was a court of record, and for the recovery of the debt the plaintiff impleaded the defendant in the same court, and found pledges to prosecute his suit; and thereupon taliter processum fait, &c. This was held tantamount to saying, he levied his plaint, which was the proper allegation in that case. But the judgment was in a court of record, where jurisdiction was acquired by levying a plaint. Our justices’ courts are not courts of record ; and jurisdiction over the person of the defendant is not acquired by levying a plaint, but by the issue and service of process, or by voluntary appearance. (Cornell v. Barnes, 7 Hill, 35, and note (e) p. 39.) The plea neither states that Roby wa§ served with process nor that he appeared in the former action ; and is bad for that reason.

There is an exception to the general rule of pleading which has been mentioned. When the plaintiff in an inferior court suffers a judgment of nonsuit, and an action is brought against him on the judgment to recover the costs which were adjudged to the defendant, the pleader need not aver that a plaint was levied in the inferior court for a cause of action arising within its jurisdiction ; for although the plaintiff had no cause of action, and was nonsuited for that reason, he must pay the defendant’s costs. (Murray v. Wilson, 1 Wilson, 316.) And the same principle will apply in declaring upon any judgment for the defendant in an inferior court, where the only object is to recover the costs which were adjudged to the defendant in that action. But the rule is different where, as in this case, the plaintiff had judgment in the inferior court, and the judgment is pleaded in bar of another action ; for if the inferior court had no jurisdiction, the judgment is void, and cannot be enforced by execution; and if the plaintiff cannot sqe on the original cause of action, he is without remedy. In such a case, the pleader should follow the general rule, and show that the inferior court had jurisdiction to give a judgment which would bar another action. And the principle must be the same in all cases where the former recovery is set up as a bar to another action.

I have felt some doubt on the question, whether in all cases where the judgment of an inferior court is pleaded against the plaintiff in that action, the authority of the inferior court should, not be presumed; and the plaintiff be left to aver and prove the want of jurisdiction, if he can. But I do not find any such doctrine in the books; and am not disposed to multiply exceptions to general rules. It would impose on the plaintiff in the former action the burden of - proving a negative, instead of leaving the party who sets up the judgment as a bar to aver and prove that there was a valid judgment. I think this case should follow the general rule ; and that the plea is bad for not showing jurisdiction in the justice to render the judgment. The supreme court so decided, and their judgment should be affirmed.

Judgment affirmed.


text:
    Buel and others vs. The Trustees of the Village of Lockport.
    In a statutory proceeding the party against whom it is taken may waive any particular requirement of the statute intended exclusively for his benefit, and if he do so the party proceeding can not take advantage of the irregularity.
    Under the 43d section of the charter of the village of Lockport, (Stat. of 1829, p. 141,) it seems the precept for a jury to assess the damages in consequence of ' laying out and opening new streets should specify the names of the owners of the lands in respect to which the assessment is to be made.
    But the proceeding is not void, although the precept omit to name the owners; and therefore the omission constitutes no defence to an action (given by the charter) by the owner of land appropriated for a street, against the trustees to recover the amount of the assessment.
    This was an action of debt, brought to recover the sum of $1200, assessed" by a jury as the amount of the plaintiffs’ damages, in consequence of laying out a street through their land in the village of Lockport, pursuant to the act incorporating said village, passed March 26th, 1829, (Stat. of 1829, p. 141, § 43.) On the trial, the plaintiffs were nonsuited, upon the ground that “ they were not named in the precept directed to the jury to assess the damages.” The supreme court refused to grant a new trial; and after judgment the plaintiffs appealed to this court.

      H. Gardner, for the appellants.

      J. L. Curtenius, for the respondents.
   Shankland, J.

The order of the board of trustees, continuing Saxton-street from Genesee to Buffalo-street in the village of Lockport, bears date in May, 1839, and does not mention the names of the owners of the land, appropriated for the purposes of the street; nor does it appear, by the records and proceedings of said trustees, that the plaintiffs were known to be owners or interested in the lands to be taken, until after the issuing of the precept to the jury to assess the damages. After the jury had assembled to assess damages, Asa W. Douglass, in behalf of himself and his co-plaintiffs, appeared before them as persons interested in lot No. 1 on Walnut-street, and lot No. 7 on Buffalo-street, and took objections to some of the proceedings, which were overruled; and the jury assessed damages to six several owners of lands by name, and to the owner unknown of one other piece; and the plaintiffs had awarded to them, by name, by the verdict of the jury, $1200 for their damages.

If the true construction of the 43d and 46th sections of the act incorporating the village of Lockport, requires the names of owners of lands about to be appropriated for streets to be inserted in the process for summoning a jury to assess damages, where the owners’ names are known, it should be made to appear that such names were' known to those who issued the process, at the time of the issuing thereof. Subsequent information of the owners’ names would not render the process void or irregular. And in the absence of evidence that the plaintiffs’ names, and interest in the land, were known to the trustees at the time the process issued, the presumption of- law is that said trustees issued the process in due form, according to the facts within their knowledge at the time. I therefore am of opinion that the court erred in assuming as a fact, that at the time of issuing the process the trustees knew the plaintiffs to be the owners of the land to be appropriated.

But, as the above view of the case would produce a new trial merely, without further results, I propose to examine, briefly, whether the statute requires the names of known owners to be inserted in the jury process, and what are the consequences of an omission so to do. The 43d section of the act clearly contemplates a case where the owners are known to the trustees; because it directs notice of the intention to appropriate the land to be given to the person interested therein,' and enables the trustees to treat with him therefor, and in case of inability to agree, then a process for summoning a jury to assess damages is to be issued. The 43d section having provided for the case of known owners, the 46th section proceeds to make provision for obtaining the lands of owners unknown, and dispensing with the necessity of giving notice otherwise than by newspaper publication. The 43d section of the act does not, in express terms, direct the names of the known owners to be inserted in the process, but the framers of the law, doubtless, took it for granted that such would be the case, in accordance with the known practice in all judicial proceedings. The wording of the 46th section shows very clearly that the legislature supposed that precepts issued in cases provided for in the 43d section would contain the names of the owners whose damages were to be assessed, and dispensed with the necessity of inserting names where the owners were unknown. Hence the inference is very strong, that the precept, when issued under the 43d section, should contain the names Of the owners whose damages are to be assessed.

But it does not follow that the proceedings of the trustees in assessing the damages are void, because the process did not contain the owners’ names. That requirement was not a jurisdictional one, but was made for the benefit of the plaintiffs, so that they could have notice of the proceedings, and opportunity to be heard before the jury on the question of the extent of their in* terests and the amount of damages sustained. The provisions of the statute having been made for their benefit, in this respect, it was competent for them to waive it, as they have done, by appearing before the jury and omitting to make any objection to the form of the process, and by subsequently insisting upon having the benefits of the proceedings. (7 Wend. 264.) The defendants, who committed the error, in issuing the irregular process complained of, can not be allowed to avail themselves of that error. The assessment in favor of the plaintiffs, and the judgment rendered thereon by the president of the village, is binding upon the defendants, as to the regularity of the proceedings on all points not jurisdictional.

The defendants’ counsel further urges in defence, that as the plaintiffs were known owners, but not named in the precept within the words of the last clause of the 46th section, they can not maintain an action for the assessment by virtue of that section. This objection is highly technical and ought not to prevail. It was clearly the intention of the legislature to provide a remedy by action for the recovery of the assessed damages, as well in favor of persons known as unknown; and the words named in the precept,” after the word “ known,” are mere words of description and tautologous. It could not have been the intent of the legislature to limit the right of action to persons named in the process, because the legislature evidently took it for granted that the names of known owners would be inserted in the precept. No reason is perceived why any class of persons, sustaining damage by the laying out of streets, should be precluded of their action at law, while a remedy is extended to others. The only distinction created by the act between known and unknown owners, is that the latter must demand his damages before action, and the former not.

It is further objected by the defendants counsel, that if the act authorized the taking of the plaintiffs’ land for the purposes of a street, it is illegal and void because it does not provide a compensation for the land taken. (Bloodgood v. Mokawk R. R. Co., 18 Wend. 10; 4 Hill, 140.) This objection would be valid, if the plaintiffs could maintain no action for their damages, on the 46th section. But as this action can be sustained on that section, the objection can not be sustained.

I am of opinion that the judgment of the supreme court should be reversed, and a new trial awarded.

Ordered accordinglv.

I


author: Pratt, J.

text:
    The Union Bank of Louisiana vs. The Executors of John G. Coster.
    A general letter of credit authorizes any person to whom it is presented to act upon the proposition therein contained ; and when any person does act thereon, a contract arises between him and the maker of the instrument, in the same manner as if it had been addressed to him by name.
    And such a letter of credit, if it authorize more than a single transaction with the party to whom it is granted, may be honored by several persons successively, keeping within the aggregate limit specified in the instrument.
    Where A. by a general letter of credit, undertook to accept and pay drafts to be drawn by B. to a given amount, and C. at the foot of the letter, at the same time, wrote and signed a guaranty in these words, “ I hereby agree to guarantee the due acceptance and payment of any draft or drafts issued in virtue of the above creditMid, that the letter and guaranty should be read and construed together, that the Consideration of the guaranty was sufficiently expressed in the writing, and therefore that the guaranty was a valid undertaking within the statute of frauds.
    Contracts of guaranty, although required by the statute to be in writing, are subject to the same general rules of construction as other contracts.
    A promise to do an act in consideration of some act to be done by the promisee, implies a request, and such a promise is made upon sufficient consideration. And if the promise be in writing, the consideration therefor is expressed so as to uphold the contract within the statute of frauds. The performance of the acts to be done by the promisee, may be proved by parol.
    A person who gives a general letter of guaranty; absolute in its terms, is liable to a party who accepts it and makes advances on the faith thereof, without notice from the latter that he has accepted or made the advances.
    In an action against a surety the omission to give notice of the default of the principal can not in any case be set up as a defence, unless it be shown that damage has been sustained in consequence of the neglect.
    On the 29th of Hay, 1841, Heckscher <fc Coster, merchants of the city of New-Y ork, executed and sent to Kohn, Daron & Co., merchants in New Orleans, a letter of credit as follows:
    “New-York, 29 May, 1841.
    Sir: We hereby agree to accept and pay at maturity any draft or drafts on us at sixty days’ sight, issued by Messrs. Kohn, Daron & Co. of your city, to the extent of twenty-five thousand dollars, and negotiated through your bank. We are respectfully, sir, your obd’t serv’ts. Heckscher & Coster.”
    At the foot of the letter of credit was a guaranty executed at the same time by John G. Coster, as follows:
    “ I hereby guarantee the due acceptance and payment of any draft issued in pursuance of the above credit.
    John G. Coster.”
    On the faith of the above letter of credit and guaranty, the Union Bank of Louisiana, in January, 1842, purchased two drafts drawn by Kohn, Daron & Co. on Heckscher &- Coster, amounting to about $9000, which were accepted and paid by the latter according to their agreement. On the 14th of February, 1842, the bank, under the same letter of credit, purchased another draft for $4000, at sixty days’ sight, drawn by and upon the same parties; and on the 26th of that month this draft was presented to Heckscher & Coster, in New-Y ork, for acceptance, which they refused. On the 9th of April, 1842, the attorney for the Union Bank gave notice to John G. Coster that he had received the draft for collection, and on the 2d of May, 1842, formal notice of the protest of the draft for non-payment was served on Mr. Coster. In August, 1844, John G. Coster died, and the Union Bank subsequently brought this suit in the superior court of the city of New-York, against his executors, upon the guaranty above set forth, for the purpose of recovering the amount of the draft. On the trial, in addition to the facts already stated, it appeared that prior to any of the above mentioned transactions with the Union Bank, the said letter of credit and guaranty had been held by the City Bank of New Orleans, which, upon the faith thereof, in December, 1841, had purchased a draft of $10,000 drawn by Kohn, Daron & Co. upon Heckscher & Coster. The letter and guaranty were not addressed to any particular person or bank.
    The plaintiffs’ counsel requested the court to charge the jury that the plaintiffs could not recover upon the grounds, 1. That the guaranty was void by the statute of frauds. 2. That the plaintiffs had not shown any notice to the defendants’ testator of their acceptance of, and intention to act upon, the letter of credit and guaranty. 3. That the letter of credit and guaranty had been first used at the City Bank of New Orleans, and that thereby that bank became the party to the contract, and no action could be maintained upon it by the present plaintiffs. 4. That the plaintiffs did not give to the guarantor due notice of the default of the principal promisors. 5. That the letter of credit had been revoked before the negotiation to the plaintiffs of the draft in question. The court overruled the 1st, 2d, 3d and 4th propositions, and as to the 5th, instructed the jury that if the letter of credit had been revoked, and the plaintiffs had notice of the revocation before they purchased the bill, the defendants were entitled to a verdict. The defendants excepted. The jury found for the plaintiffs, and after judgment the defendants appealed to this court. (See 1 Sandf. Sup. Court Rep. 563.)

      Wm. M. Evarts, for appellants,
    I. The alledged guaranty of the defendants’ testator is void by the statute of frauds. First. Because the memorandum does not express any consideration ; and Secondly. Because it does not contain any name or description of the person or party to whom the promise to answer for the debt or default of another was made. (2 R. S. 135, § 2; Davis v. Shields, 26 Wend. 350; Parker v. Wilson,
      15 id. 343, 6, 7; Manrow v. Dunham, 3 Hill, 584; Parker v. Bradley, 2 id. 584; Hunt v. Brown, 5 id. 145; Rogers v. Kneeland, 13 Wend. 114 ; Newcomb v. Clark, 1 Denio, 226.)
    II. The letter of Heckscher &. Coster does not contain any express consideration for their promise to accept and pay the bills of exchange therein referred to. Much less does the memorandum signed by John G, Coster, annexed to that letter, as a collateral undertaking express the “consideration” in “writing” for the promise charged in the declaration. It is, therefore, clearly void by the words of the statute. (2 R. S. 135, § 2; Forth v. Stanton, 1 Saund. Rep. 211.)
    III. If the memorandum contains a valid guaranty under the statute, still the defendants’ testator was not liable. 1. Because the plaintiffs never gave to the guarantor such notice of their acceptance of, or intention to act upon the credit of the guaranty, as is requisite to fix the guarantor’s liability. (Adams v. Jones, 12 Peters, 213; Russell v. Clark, 7 Cranch, 69; Edmondson v. Drake, 5 Peters, 624; Douglass v. Reynolds, 7 id. 113; Lee v. Dick, 10 id. 482; Reynolds et al. v. Douglass, 12 id. 497.) 2. If this notice be not essential in the case of a guaranty determinate in its subject matter, absolute in amount, and expressly directed and delivered to a particular person, it is so when the promisee is indeterminate, and the subject and amount are vague and open. For until such notice is given and received it is a mere overture or proposition of guaranty, and none of the requisites of a binding contract exist. (Beekman v. Hale, 17 John. 134; Stafford v. Low, 16 id. 67.) 3. The transaction with the City Bank” fixed that institution as the party to the letter of credit issued by Heckscher & Coster; and that bank became (if any party became) the only person to whom the guaranty was addressed. It was an entire contract incapable of being apportioned to different parties for part performance by and to each. 4. When the contract became once fixed to a particular promisee, it could not be negotiated, shifted or transferred to another promisee. 5. If capable of either apportionment or transfer in respect to the promisee, the guarantor can not be held to the substituted promisee, unless upon his assent, express or implied, to such substitution. No notice even here is proved or alledged. 6. Should Kohn, Daron & Co. be deemed the parties to the guaranty, (it not being a negotiable contract,) the suit, though for the benefit of the plaintiffs, should be in the name of Kohn, Daron &- Co.
    IV. The plaintiffs did not give to the guarantor such notice of the default of the principal promisors as was necessary to fix his liability. The bill was protested for non-acceptance, February 26th, 1847, at the city of New-York, where the drawers and the guarantor resided, and notice of non-acceptance was not given until April 9th ensuing.

      B. W. Bonney, for respondents.
    I. The agreement (or let ter of credit) granted by Heckscher & Coster, to Kohn, Daron &, Co, to which the guaranty of John G. Coster is subjoined, is a valid contract in the hands of the Union Bank, and covers the bill now in question. And it was not the less a valid contract in the hands of the Union Bank on account of the prior transaction with the City Bank of New Orleans. The letter was addressed to no particular person, and might be successively delivered to and acted upon by different parties within the amount specified.
    II. The contract of guaranty upon which the suit in the superior court was brought, is a legal obligation, made in due form, and sufficiently expressing the consideration to charge John G. Coster, the maker; and under it the defendants below, as his representatives, are liable for the amount for which judgment was rendered. In construing the contract and determining its validity and effect, the guaranty and the agreement to which it is subjoined and refers must be taken together and considered as forming but one instrument, according to the uniform rule of construction in like cases. (Rogers v. Kneeland, 10 Wend. 218; same case in error, 13 id. 114; Brickhead, v. Brown, 5 Hill, 634; same case in error, 2 Denio, 375.) No particular phraseology or form of words is necessary to be used for expressing the consideration of any contract. It is enough if from the whole instrument it is manifest that there is a consideration. (Douglas v. Howland, 24 Wend. 35; Allen v. Jaquish, 21 id. 628; Morley v. Boothby, 10 Moore, 395.) A contract of guaranty, like any other contract, may be made and sustained upon a consideration of benefit to the guarantor or detriment to the party receiving the guaranty; and it is not necessary that it should be a consideration moving between the parties to such contract. (Smith v. Weed, 20 Wend. 184; Watson v. Randall, 20 id. 201; Morley v. Boothby, 10 Moore, 395.) The consideration for the guaranty by John G. Coster of the acceptance and payment of the bill in question was the receiving of that bill by the Union Bank, on the faith and credit of the agreement and guaranty, and the payment of the money therefor: and that consideration is sufficiently expressed in the instrument of guaranty and the agreement to which it is subjoined. (Fell on Guarantees, 36; Pitman on Pr. & Surety, 62; 40 Law Library, 57; Wain v. Walters, 5 East, 10; Shortrede v. Cheek, 1 Ad. & Ellis, 57; 1 R. L. of 1813, p. 78, § 11; Leonard v. Vredenburgh, 8 John. 29; Bailey v. Freeman, 11 id. 221; Nelson v. Dubois, 13 id. 175; Farley v. Cleveland, 4 Cowen, 432; S. C. in error, 9 id. 639; Rogers v. Kneeland, 10 Wend. 218; S. C. in error, 13 id. 114; 2 R. S. 1830, p. 135, § 2 ; Marquand v. Hipper, 12 Wend. 520; Douglas v. Howland, 24 id. 35; Parks v. Brinckerhoff, 2 Hill, 663; Manrow v. Dunham, 3 id. 584; Walrath v. Thompson, 4 id. 200; Hunt v. Brown, 5 id. 145; Potter v. The Ontario Mut. Insurance Co. 5 id. 147.)
    III. The contract by John G. Coster is an absolute and unconditional undertaking that Heckscher & Coster shall accept and pay all bills to the amount of $25,000 drawn under their letter of credit; and therefore, under the law of New-York, notice of the acceptance of the guaranty or of the default of Heckscher & Coster was not necessary to charge him. (Allen v. Rightmere, 20 John. 365 ; Clark v. Burdett, 2 Hall's S. C. R. 197; Douglas v. Howland, 24 Wend. 35 ; Whitney v. Groot, 24 id. 82; Luqueer v. Prosser, 1 Hill, 256; S. C. in error, 4 id. 420; Miller v. Gaston, 2 id. 188; Smith v. Dann, 6 id. 543; Train v. Jones, 11 Vt. R. 444; Thrasher v. Ely, 2 Smed. &

      Mar. 139; Harris v. Ferrand, Hardr. R. 36 ; Brice v. Carre, 1 Lev. 47; White v. Woodward, 5 Man. Gr. & Scott, 57 Eng. Com. L. Rep. 810.)
    IV. If, however, it should now be held that notice of the acceptance of the guaranty and receiving the bill drawn under it, and of the default of Heckscher & Coster in not accepting and paying such bill was necessary, it is fully proved that such notice was given in reasonable time, and sufficient to charge John G. Coster and his representatives. There is no proof or pretence of damage to John G. Coster, by reason of notice not being given sooner than it was given. (Douglas v. Reynolds, 7 Peters, 113; Reynolds v. Douglas, 12 id. 497; Cremer v. Higginson, 1 Mason, 323; Russell v. Perkins, id. 368; Wildes v. Savage, 1 Story, 22; Craft v. Isham, 13 Conn. Rep. 28; Seaver v. Bradley, 6 Greenl. 60 ; Train v. Jones, 11 Vt. Rep. 444; Babcock v. Bryant, 12 Pick. 133 ; Salisbury v. Hale, 12 id. 416.)
   Pratt, J.

delivered the opinion of the court. Contracts of guaranty differ from other ordinary simple contracts only in the nature of the evidence required to establish their validity. - The statute requires every special promise to answer for the debt, default or miscarriage of another, to be in writing subscribed by the party to be charged thereby, and expressing therein the consideration; and no parol evidence will be allowed as a substitute for these requirements of the statute. But in other respects the same rules of construction and evidence apply to contracts of this character which apply to other ordinary contracts. Hence the consideration which will support a contract of this character, as in other cases, may consist in some benefit to the promisor, or some other person at his request, or some trouble or detriment to the promisee. (20 Wend. 184, 201; Theobald on Pr. & Surety, 3, 4; 2 H. Bl. 312.) Nor is any particular form of words necessary to be used for expressing the consideration; but it is enough if from the whole instrument the consideration expressly or by necessary inference appears; so that it be clear that such and no other was the consideration upon which the promise was made. (24 Wend. 35 ; 21 id. 628; 4 Hill, 200; 8 Ad. & El. 846; 5 Barn. & Ad. 1109.) And the rule allowing two or more instruments given at the same time and relating to the same subject matter to be construed together as one instrument, applies also to this class of contracts; so that when a guaranty is given at the same time with the principal contract and forms a part of the entire transaction, if the consideration be stated in the principal contract, though none be stated in the guaranty, it will suffice. , (8 John. 35; 9 Wend. 218 ; 18 id. 114.) So also as in other cases, parol evidence of the circumstances under which the contract was made may be given, to aid the court in giving a true construction to ambiguous terms therein, or to show that separate contracts relate to the same subject matter.

It should also be observed here, that our statute in terms only requires the contract to express therein what it had been well settled the statute of Elizabeth required it to contain, and the same rules of construction should therefore be applied in cases under both statutes. (24 Wend. 35.)

"With these observations in relation to the law governing cases of this kind, we come to the consideration of the contract in question.

The letter of credit of Heckscher <fc Coster is an original undertaking on the face of it to accept any drafts to be drawn upon them at sixty days by Kohn, Damn & Co. to the extent of $25,000, and negotiated by the bank to whom it is addressed. The consideration of their undertaking appears very plainly from the instrument. It is an open proposition to the bank to which it is addressed, that if it will purchase the drafts drawn by Kohn, Daron & Co. they will accept and pay the same. As soon therefore as the bank complied with the proposition the contract was closed, and the rights and liabilities of the parties became fixed. Upon this part of the contract there can be no question that a sufficient consideration appears upon the face of the contract to uphold it. But it requires no greater or different consideration to support a guaranty than to support an original promise. The only difference in the two cases consists in the former requiring the consideration to appear upon the contract itself, whereas the consideration to support the latter may be proved by parol. The question therefore in this case is whether the consideration of the undertaking of the defendants’ testator appears upon the instrument itself, or rather whether the two instruments may be read together so that the same consideration shall support both.

The guaranty is without date and at the foot of the letter of credit. Independent of the parol testimony it should be deemed to have been made at the same time. It is addressed to the same person and relates to the same subject matter. It should therefore, within every rule of construction, be deemed part of the same transaction, and the two instruments should be read together as one contract. The two would read thus: “ In consideration that you, the Union Bank of Louisiana, will purchase any draft or drafts to be issued by Kohn, Daron & Co. upon Heokscher & Coster, at sixty days, not exceeding $25,000, we the said Hecksoher & Coster will accept and pay the same; and I the said John G,.Coster agree that Heckscher & Coster shall accept and pay the same.” Now it seems to me clear that such is the fair reading of the two contracts taken together; and although the contract of John G. Coster may be deemed collateral, yet had the two been drawn in the above form no question could have been raised upon the statute of frauds. But what may be fairly inferred from the terms of a contract should be considered, for the purpose of giving it effect, as contained in it; and this rule applies as well to collateral as to original undertakings. (5 Hill, 147.)

There is a wide difference between the guaranty of an existing debt and the guaranty of a debt to be contracted upon the credit of the guaranty. It is the difference between a past and future consideration. A past consideration, unless done at the request of the promisor, is not sufficient to support any promise. But a promise to do an act in consideration of some act to be done by the promisee implies a request, and a compliance on the part of the latter closes the contract and makes it binding. And although it may be necessary from the nature of the case to prove performance by parol, yet such evidence is no violation of the statute requiring the consideration to be in writing. The consideration of the promise is expressed, and the parol evidence is only used to show, not what the consideration is, but that the act which constitutes that consideration has been performed. Any other rule would require every person to whom a letter of credit is directed to accept the same in writing before the drawer would be bound. For instance, a letter drawn in the country and addressed to a merchant in the city, guaranteeing the responsibility of the person for whose benefit the same was drawn for a given bill of goods to be sold to him, would require a written acceptance by the city merchant before it would be binding tipon the drawer, No such strict rule can be found supported by any adjudication. I am therefore satisfied that the consideration of the guaranty in the case at bar sufficiently appears in the contract, and that the same was valid and binding upon the defendants’ testator. I have not been able to find a case in our own or the English courts which would conflict with the doctrine above advanced; but on. the contrary, the books are full of cases similar in their circumstances to this case, where the guaranty has been sustained. (8 John. 35; 11 id. 221 ; 10 Wend. 218; S. C. in error, 13 id. 114; 12 id. 218; 24 id. 35; 4 Hill, 200; 4 Denio, 559 ; 1 Ad. & E. 57; 5 Bligh’s N. R. 1; 7 Mees. & Weis. 410; 9 East, 348; 1 Camp. 242 ; 3 Brod. & Bing. 211; 4 C. & P. N. P. 59; 8 Dowl. & Ryl. 62.)

The next question raised in the case is as to notice of acceptance. We must hold the law to be settled in this state that where the guaranty is absolute no notice of acceptance is necessary. Judge Cowen, in Douglass v. Howland, (24 Wend. 35,) and Judge Bronson, in Smith v. Dann, (6 Hill, 543,) examined the cases at length upon this question, and they showed conclusively that by the common law no notice of the acceptance of any contract was necessary to make it binding, unless it be made a condition of the contract itself, and that contracts of guaranty do not differ in that respect from other contracts. In this case the only condition of Coster’s undertaking was that the bank should purchase the drafts to be issued by Kohn, Daron & Co., and upon complying with that condition the rights of the parties became fixed, and the contract binding. There is nothing in the contract from which we can infer that it was the intention of the parties that notice should be given in order to fix the guarantor. No more is required to make the guarantor liable than to make Heckscher & Coster, and the only-notice to them necessary was the presentment of the drafts for their acceptance within a reasonable time. (Allen v. Rightmere, 20 John. 365; Clark v. Burdett, 2 Hall, 197; Cro. Jac. 287, 685; 2 Salk. 457; Vin. Ab. Notice, A. 3; Com. Dig. Plead. C. 75 : 2 Chitty, 403.)

As to notice of non-acceptance and non-payment of the bills by the drawees, that can only involve the subject of laches on the part of the holders of the drafts, and all the cases, both in England and in this country* concur in holding that this defense can only be set up to an action against the surety in cases where he has suffered damage thereby, and then only to the extent of such damage. (7 Peters, 117; 12 id. 497; 1 Mason, 323, 368; 1 Story, 22; 13 Conn. 28 ; 5 Man. & Gran. 559; 13 Mees. & Weis. 452; 3 Kent’s Com. 122.) If, therefore, it were necessary in this case to give any notice, no evidence has been given showing that the defendants, or the guarantor, suffered any loss in consequence of the want of such notice.

The only remaining question, therefore, worthy of consideration in this case, arises out of the fact that another bank had previously purchased drafts drawn in pursuance of the letter of credit and guaranty. It is claimed that by such purchase the contract became a fixed and binding contract between such bank and the promisor, and thereby lost its negotiable character, and became located so that no other person or bank could purchase drafts upon the credit of it.

The guaranty, in this case, was manifestly intended to accompany the letter of credit, and is subject, in this respect, to the same construction. If, therefore, it was competent for Kohn, Daron & Co. to draw several drafts not exceeding the limit in the bill of credit specified, and to negotiate them at different banks, and Heckscher & Coster would be bound by their letter of credit to accept and pay them, the guarantor would also be liable to the same extent. As a general rule the surety is liable to the same extent as the principal, unless he expressly limits his liability. (Theobald on Prin. and Surety, 46.) It therefore onty becomes necessary to examine the letter of credit, and ascertain whether it was intended to be limited to one particular bank, or is a general letter of credit to any and all persons who may advance money upon it. It is somewhat singular that we find so few adjudications in our courts upon a class of commercial instruments which enter so largely into the commerce and business of this country, and of the world.

In England it seems to be at this time questionable whether a party who advances money upon a general letter of credit can sustain an action upon it-. (Russell et al. v. Wiggins, 2 Story, 214 ; Bank of Ireland v. Archer, 2 Mees. & Welsby, 383.) The reason assigned is that there is no privity of contract between them. It is there assumed that it is only a contract between the drawer of the letter and the person for whose benefit it is drawn. Blit in this country the contrary doctrine is well settled. Letters of credit are of two kinds, general and special-. A special letter of credit is addressed to a particular individual by name, and is confined to him, and gives no other person a right to act upon it. A general letter, on the contrary, is addressed to any and every person, and therefore gives any person to whom it may be shown authority to advance upon its credit. A privity of contract springs up between him and the drawer of the letter, and it becomes in legal effect the same as if addressed to him by name. (Russell v. Wiggins, 2 Story's Rep. 214; 12 Mass. 154; 2 Metcalf 381; 12 Wend. 393; 12 Peters, 207; Burkhead v. Brown, 5 Hill, 641; Story on Bills; See Beames' Lex. Mer. 444.)

But these general letters of credit may be subdivided into two kinds, those that contemplate a single transaction, and those that contemplate an open and continued credit, embracing several transactions. In the latter case they are not generally confined to transactions with a single individual, but if the nature of the business which the letter of credit was intended to facilitate, requires it, different individuals are authorized to make advances upon it, and it then becomes a several contract with each individual to the amount advanced by him. Thus a general letter of credit may be issued to a person to enable him to purchase goods in the city of New-York, for a country store. The very nature of the business requires him to deal with different individuals and houses in order to obtain the necessary assortment. It has never, as I am aware, been questioned that the guarantor might be bound to several persons who should furnish goods upon the credit of the letter.

So letters are issued by commission houses in the city, to enable persons to purchase produce in the western states. The money is obtained from the local banks in those states by drafts drawn upon those houses, and upon the faith of the letters of credit. It may often happen that a single bank can not furnish the requisite amount, or it may be necessary to use money in different and distant localities. I am not aware of any question ever having been raised as to the authority of different banks to act upon the same letter of credit. It is absolutely necessary that such should be the effect of them in order to facilitate the commerce of the country, and to carry out the object of the parties in issuing the letters of credit. (Burkhead v. Brown, 5 Hill, 641; 2 Story’s Rep. 214.)

The letter of credit in this case was evidently intended, to be general; it did not contemplate a single transaction, or draft for the whole amount, but several drafts limited in the aggregate to twenty-five thousand dollars. Although the address “sir,” and your bank,” is in the singular number, yet I think it was intended to be used in a distributive sense, and apply to any oank or banks who should purchase the drafts. I can see no object which the drawers should have for limiting the party for whose benefit the letter was issued to a single bank. It is said that it would enable them more readily to revoke the authority. But these letters are not issued without either undoubted confidence in the persons for whose benefit they are drawn, or tipon ample security. The idea of giving notice of revocation to any party but that for whose benefit they are drawn, is never entertained by the guarantors in cases of general letters. When they wish to provide for any such contingency the letters are framed accordingly. Again, in this case the parties themselves have treated this letter as not limited to a single bank, for they accepted bills which had been discounted by the plaintiffs.

I am, therefore, satisfied that the plaintiffs were authorized to purchase bills upon the faith of the letter and accompanying guaranty, and that the previous purchase of bills by another bank is no defence.

Whether the letters had been invoked with the knowledge of the plaintiffs before the draft was discounted by" them, was a question of fact for the jury. It would clearly constitute no defence unless the plaintiffs had notice of it. The judgment of the superior court must therefore be affirmed with costs.

Judgment affirmed.