text:
    Sibley vs. Smith et al.

    The principle that every grant of power carries with it the usual and necessary moans fo? the exercise of that power, and that the power to convey is implied in the power to sell, cannot be admitted in the construction of statutes, which are in derogation of the common law, and the effect of which is to divest a citizen of his real estate. Such statutes, althongh enacted for the public good, must be strictly ponstrued.
    The Auditor General cannot, therefore, assume the power to convey lands sold for taxes,*on forfeiture, uulessitis expressly conferred upon him by statute.
    But section 76 of the act relating to taxes, (Sess, L., 1843, p. 83,) providing that lands returned for the taxes of 1841, shall be sold at the same time, and in the same manner, as provided in said act for the taxes of 1843, “and in all respects with like effect” taken in connection with sections 64 and 65 of said act, expressly confer upon the Auditor the power to execute deeds to purchasers, at tax sales, of, and for, delinquent taxes of 18ÍT.

      Ill construing statutes of doubtful meaning, Courts aro authorized to collect the intcntion.of •the Legislature from the occasion and necessity of the law — from the mischief felt, and the objects and remedy in view — and the intention is to be tahen, or presumed, according to what is consonant to reason and good discretion.
    The last clause of section 65 of the act qf 184$, p. 80,^vhich declares that the “ deed shall be prima facie evidence of the regularity of all proceedings to the date of the deed,” relieves thepurchaserhaving the deed, from proving as facts, the proceedings required by statute before the sale, and abrogates the common ‘law rule of strict construction, otherwise applicable to such cases.
    The Auditor’s deed need not recite the proceedings prior to the sale. The recitals need.shoiv no more than the capacity in which the Auditor acts.
    Tinder the laws of 1842 and 1843, there is no limitation of the quantity to he sold, for the taxes of a given parcel,-
    The absence of any record in the town boohs, showing that the assessors were sworn, does not furnish prima facie evidence that they were not sworn.
    An assessment roll not signed by the assessors, is void, and can furnish no legal basis for proceedings which terminate in a tax deed.
    The defect of the want of the signature of the assessors to the roll, is not cured by their signatures to the certificate annexed to it.
    It seems the act requiring the assessors to annex their certificate to the assessment roll, is directory merely, and a non-compliance with that provision mil not affect the validity of the roll.
    The description of lands assessed, or sold for taxes, by the use of initial letters, abbreviations ■and figures, is a valid description.
    Case reserved from Calhoun’Circuit Court.

      Crary & Hughes, for plaintiff.

      J. Van Arman, for defendants.
   By the Court, Wing, P. J.

An action of ejectment was commenced in the Circuit Court for the county of Calhoun, to recover the possession of the east half of the. south west quarter of section twenty-four, township three south, of range seven west. •

At the term at which the canse was to have been tried, the parties agreed upon a case, which was to be reserved for the opinion of this Court, and which was done by the Circuit Judge.

The case supposes the plaintiff to have.offered in evidence, the record of a deed, in the register’s office in the county of Calhoun, of the lands described in the declaration, executed by the Auditor General to the grantor of the plaintiff.

To this the defendants made three objections, as follows:

1. A proper foundation for this evidence has not been laid — the plaintiff should prove all the prior proceedings-up to, and including the sale; without which, the deed|s not evidence;

2. The deed does not recite any such proceedings;

3. The deed on its face, shows that the sale was void, as no mom than forty acres could be sold, to satisfy the tax.

It appears from the proceedings and deed, that the taxes, for the nonpayment of which, the land described in the deed was sold, were assessed -in the year 1841, under the provisions of title five of the R. S. of 1838, and the amendments thereto, enacted in 1839, 1840, and 1841. The tax was returned to the Auditor General’s office, as delinquent, between the months of February and April, of 1842.

On the 16th of April, 1842, an act was passed, which changed the previously existing system for the assessment and collection of taxes. The 66 th section of that act repeals chapters two, three, four, and five of part first, title five of the R. S. of 1838, leaving chapter six of that title to remain in force; but tbenew law, (Seel 67, page 101,) expressly provides that the same proceedings shall be had on taxes then returned to the Auditor General, and which should remain unpaid, as though the chapters above named had not been repealed. The repealing clause provides that it shall not affect any act done, or right accrued, &c., before the act takes effect.

On the 18th of March, 1843, a new system, similar in some respects to that contained in the revised statutes of 1838, was enacted by the Legislature, and took effect, providing for the assessment, collection, return, advertisement, and sale of delinquent taxes.

By the 74th section of that act, provision is made for returns to the Auditor General by the county treasurers, of taxes for the year 1841 remaining unpaid, and which had not been returned in 1842, but that provision is not applicable to taxes of 1841 which were returned in 1842. The 70fch section provides that '“lands which have been or shall be returned as above provided, for taxes of 1841 and 1842, and those now.in tbe office of the Auditor General for taxes of 1841, on which the taxes, interest, and charges shall remain unpaid, or not to he charged back to the proper county, by the first day of June eighteen hundred and forty-four, shall he advertised, and if not paid by the first Monday in October, succeeding, shall be sold at the same time and in the same manner as herein provided for the taxes of eighteen hundred and forty-three, and in all respects with the lihe effect, and shall be subject to redemption and payment of surplus, in hice manner as other lands liable to be sold on the first Monday in October, 1844,. -by the provisions of this act, and the same interest after sale shall be ■charged."

This law of 1848, with the exception of the four last sections, including those noticed above, is prospective in its terms; it was manifestly designed to creato a new system of taxation, and to cover the whole ground occupied by former statutes. The sections cited take up the tees returned for 1841, (among which are those for Calhoun County,) as they were found in the office of the Auditor General; no further act was required to be done, to enable the Auditor General to proceed to sell under the provisions of section 76, and the sections to which reference is therein made. He was not directed to any former act as his rule of action, but was required to conform to the provisions of that act.

But it is insistod that section seventy-six, though it prescribes the proceedings to he had up to and including the sale, does not grant to any officer the power to deed, and unless the provisions of chapter six, section nineteen, of the revised statutes of 1838 are held to he operativo for such purpose, in eouuectiou with the law of 1843, no deed can be given by the Auditor General for lands sold for taxes of 1841.

By the eighty-third section of the act of 1848, it is enacted that “all acts and parts of acts inconsistent or concurrent with the provisions of this act are hereby repealed, hut this repeal shall not affect any suit or proceeding,” &c., “nor shall it affect any act done or right accrued before this act shall take effect.” By comparing chapter six, of title five,, of the revised statutes of 1838, with the provisions of this act, it will he seen that this act incorporates (with some few alterations,) all its provisions-; that it was intended to embrace all the law upon the subject, and that chapter six is either inconsistent or concurrent with it,, operating upon the same objects, and contributing to the same event ox effect. But for the provisions of section seventy-four or section seventy-nine, the taxes of 1841 would have remained subject to be disposed of under the provisions of chapter six, which was retained for that purpose' by the law of 1842. Those 'sections expressly provide for the taxes of 1841, and withdraw them from the operation of chapter six, and prescribe the course of procedure to effect a sale, and, consequently, the' repealing clause embraces that chapter.

If this construction of the law of 1843 is not obviously correct, it will, J think, appear to be so, if it can be shown (as I think it can be,) that power is given to the Auditor General, by section seventy-six, to • execute deeds to purchaser’s at tax sales of land for delinquent taxes of 1841. That section, as we have seen, provides that the land shall be '■ sold at the same time and in the same manner as is herein provided • for the taxes of 1843, and it was urged by the counsel of the plaintiff that the word sold, as used in that section, imported a power in the offi•cer selling, to give a deed, but in this we think he was incorrect.

It is claimed that this power is derived from the well established principle of law, that every grant of power, necessarily carries with it all the usual and necessary means for the exercise of that power, and that, consequently, the power to convey is implied in the authority to sell. (10 Pet. R., 161; 18 John. R., 418; 2 Cow. 199, 233—5.)

But this principle is not admitted in the construction of statutes similar to this; such statutes, being in derogation of the common law, and authorizing proceedings, the effect of which is to divest a citizen of 'his title to real estate, though it may be for the good of the public, ■ must be construed strictly, ( Van Horn's Lessees vs. Darrow, 2 Dal. 216; 4 Hill R., 99;) and their piro visions can be enforced no farther than they are clearly expressed. The Auditor General can take no power that is not expressly granted to him; he can assume no power by implication, and when his acts are not clothed with the authority of the statute, they are of no validity.

In the case of Doe, on the demise of Lemon vs. Chunn, (1 Blackf., 336,) the plaintiff in ejectment claimed title under a sale, by the collector of a borough tax; the act incorporating the borough of Charlton, authorized the collector to sell lots for the non-payment of taxes, "but was silent as to the making of conveyances. It was held, that though the previous proceedings were regular, the deed pf the collector vested no title in the purchaser. '

The word “sold,” as used in this section, must be held to have the same meaning as it has when used in section sixty-one, to which it refers ; it is used in both sections in reference to the same purpose and object. By a reference to the law of 1848, and to chapter six of title fire, and other laws, it will be found that tíre usual language of the Legislature is, to consider a sale and a conveyance, as distinct and separate acts, which are to be performed at different times, and by different persons. The treasurer who made the sale in this case, is not the deputy of the Auditor General, nor does he derive his power to sell, from him.

It will, I think, be conceded, that the word sale, or sold, embraces the bidding at the public sale — the payment of the money by the purchaser, and the giving of the certificate by the county treasurer, to the bidder or purchaser. This seems tq be contemplated by section sixty-four of the act of 1843, which provides that “at the sale aforesaid, the respective county treasurers shall give to the purchasers, on the payment of their bids,' a certificate in writing, describing the land purchased, and the amount paid therefor, '^nd shall endorse thereon the kinds of funds received, &c., and a copy thereof shall be forwarded to the Auditor General,” &c. Without the addition of any other provision, the sale contemplated by sections sixty-one and sixty-two, would embrace all that is specified in those sections, without which the sale could not be made. The bare bidding off the land, would not constitute a sale;the money must be paid, and a certificate given, to perfect the lights of the parties, as intended by those sections. If this is true, then the words following the directions, as to the time and manner of sale, viz: in all res2>ects with the like effect,” were unnecessary to enable the purchaser to obtain his certificate. That clause seems obviously to have been intended to embrace matters not included in the language before used. If this clause does not necessarily import that the acts required to be done by section, sixty-four, are to be the effect of the sale, (rather than the sale itself,) to what can it refer 2 It appears to us to refer to the matter which is stated in immediate connection with the sale, and in the very next section, which provides that “on the presentation of ■ such certificate of sale, to the Auditor General, after the expiration of-the time therein provided for the redemption of lands sold as aforesaid, ' he shall execute to the purchaser, his heirs or assigns, a deed of the lands therein described, unless” &c. This is the immediate effect — not that it is to happen immediately, but it is an immediate effect that the purchaser is entitled to a deed, subject to the redemption provided by law. There are other effects, such as the liability of the lands purchased by the State, to taxation, as stated in section 68 — the authority of the Auditor General to withhold a conveyance, if he shall discover irregularities in the sale, as stated in sections sixty-nine, seventy,, and seventy-one, and the right of persons having liens, to p>ay, as stated in section seventy-two. This clause cannot refer to the original .owner’s right to redeem, or to his right to the surplus on a sale, for those, things are ex-’prcssly provided for in section seventy-six, following the clause we are considering.

It will be noticed that the words we arc considering, are not simply, with the like effect — they are, in all respects with the like effect;” and to oiu- minds, they mean what we have supposed them to mean; they are not susceptible of any other interpretation; they are very broad, and appear to have been intended to include diverse matters, resulting from the sale, though not stated in immediate connection with the section providing for the sale, and though they may not be certain, but contingent. We think this is not a forced construction, nor is it a mere implication; the words used seem naturally to point directly to the objects and purposes we have indicated, as plainly as if those objects or purposes were expressly stated. The directions given in section seventy-six, are expressed in concise terms, and by way of reference to greater details expressed in other sections.

■ But if it be still urged that the words are not explicit — that it is doubtful whether they refer to the proceedings required in section sixty-four, or to the other sections we have named, then we are authorized to collect the intention of the Legislature from the occasion and necessity of the law — from the mischief felt, and the object and the remedy in view; and the intention is to bo taken or presumed, according to what is consonant to reason and good discretion. (1 Kent's Com., 46; Dwarris on Stat., 702; 9 Wheat. R., 189; Smiths Com. on Stat., Sec. 844; 5 Barb. S. C. R., 159.)

An examination of the legislation of this Stat% will throw light upon the intention of the Legislature, as manifested by the clause in question.

The statute of 1827, page 378, and revised laws of 1833, page 96, section 15, provided that a tax deed “should vest in the purchaser an absolute estate in fee simple; subject to all the claims the Territory of Michigan should have' therein, and should be conclusive evidence that the sale was regular, according to the provisions of the act.”

The statute of 1838, page 98, section 20, provided that such deed should be conclusive evidence of title, “ provided such assessment, and all other proceedings in the premises were regular, according to the provisions of that law.” v .

The construction put upon the law of 1827, and ’33, was, that a treasurers deed on a sale was “conclusive evidence” only, of the fact that the sale by him was regular, according to the provisions of the act. (Harrington’s Ch. R., 3; Rowland vs. Doty; Scott vs. The Young Men’s Society’s Lessees, 1 Doug., 119; Latimer vs. Lovet, 2 Ib., 204.) The statute of 1838, embodied the previous decisions, thus holding the purchaser to great strictness, in proving the regularity of the proceedings antecedent to. the deed.

We have seen that the tax in question was assessed in the year 1841, and returned under the provisions of the law of 1838. That was a period of great depression in the money market; many men had become -bankrupt, and there was very little confidence either in the integrity or ability of town and county officers, or in the laws relating to taxation; the treasury of the State was empty, and the State owed a very large debt; the counties were new, and the town officers were not generally well qualified to transact public business, and particularly such business as making assessment rolls, &c. There existed in the minds of the residents in some counties, a strong prejudice against non-residents, whose ■lands in this State were enhanced in value by the labor of the residents. Eastern men were unwilling to hazard their money in the purchase of tax titles, where the resident had so little interest in aiding them to perpetuate the evidence of their titles. Added to this, the Courts of this State, as well as of other States, had been exceedingly astute in searching out errors in tax sales, and if any, even the most minute, error could be found in the whole corase of proceedings, the sale was declared void. This course of proceeding had prevailed to such an extent, that at length it was pretty generally believed that no valid title could be acquired under a tax sale.

To obviate these difficulties which had embarrassed the State in attempting to sell land for taxes, and prevented its being able to raise money to meet its necessities, a new system-was devised in 1842, which was in turn repealed, and another new system adopted in 1843, which was much better calculated to insure a sale of delinquent tax lands, as it provided that the deed to be given to purchasers at tax sales, “should be grima facia evidence of the regularity of all the proceedings to the date of the sale,” and it was the purpose of the Legislature that this provision should apply to delinquent taxes of 1841, and 1842, as well as to prospective taxes.

The seventy-ninth section of this last mentioned act provided, that all notices of applications to the Courts for rendition of judgments, and all other notices in relation to the taxes of 1841, and 1842, except such as were required in other cases by that act, should be considered wholly unnecessary and should be discontinued, and no judgments should be entered or deemed necessary on any such delinquent taxes. Take this section in connection with the repealing clause, and it is abundantly manifest that it was intended to get rid of the provisions of the act of 1842, so far as it related to the sale of tax lands by virtue of its provisions, and but for sections 74, 75, and 76, of the act of 1843, the taxes for 1842 could not be levied or sold, for they rested solely upon the provisions of the law of 1842. To sell the lands upon which these taxes as well as those of 1841, were delinquent, under the general provisions of the act of 1843, was the object of section 7 6. That it was also the intention of the Legislature that the law should provide a complete remedy, we think is manifest, without a special reference to the clause in question. Then let us apply the principle of construction we have cited from Kent’s Commentaries, and we think there can be no doubt that the construction we have put upon the clause in section 76 is the true one. It consists with what is said to be the duty of a judge, viz: to make such a construction as shall repress the mischief and advance the remedy, (1 Kent's Com., 466;^) and this is held to be the case, in an especial manner, in respect to statutes of public utility. (11 Co., 71 b,, Magdalene College case.)

The last clause of section 65 (of the act of 1843,) provides that the-deed “shall be prima facia evidence of the regularity of all the proceedings to the date of the deed"

It is urged in view of the great technical nicety which has prevailed in the construction of tax laws, that this provision was not intended to-relieve the purchaser having a deed, from proving as facts, the various proceedings required by the statute before the sale,"and that the deed would be prima facia evidence of the regularity of acts proven to have been done. This wo^i lead to singular results. Either the act proven to have been done, must be shewn to have been in all respects conformable to law, and, therefore, would need no presumption in its favor, and would derive no support from the law, or the act done, however defective, if it in some degree conformed to the law, but not sufficiently so to confer jurisdiction, must be held to be prima facia evidence: but under what circumstances ? The moment it is brought to light, and is to be examined, and where only it needs any presumption in its favor, it is overthrown with all the presumptions in its favor.

It seems to be taken for granted, that the long course of decisions-requiring strict proof of the regularity of the proceedings antecedent to the deed, should induce this Court to give to this clause (which in its-ordinary meaning seems quite plain) a judicial sense, which will elude the apparent object of the Legislature. We prefer to act upon the rule laid down by Mr. Justice Bronson, (20 Wend., 561,) where he says: “The current of authorities is in favor of reading statutes according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either-limiting or extending their operation.” (See 1 Kent Com., 462, 6th Ed.)

In the case of Sharpe vs. Spier, (4 Hill R., 86,) Mr. Justice Bronson, in remarking upon a statute of New York, says, “ as the statute has . not made the conveyance prima facia evidence of the regularity of the proceedings, Has, fact that they were regular must be proved, and .the onus rests upon the purchaser.” This clearly implies that the- . Judge thought if the statute before him contained the words in our statute, the production of the deed would have cast the onus on the other party; and see (2 Barb., 115; Gorick vs. Tollman, per Gridley, Judge.)

This provision has abrogated the rule of strict construction of the common law, which requires that a party claiming title under special proceedings, authorized by statute, and by which the estate of one man may be transferred to another, shall prove that all the material requirements of tho statute have been complied with, or he acquires no title. (1 Cowper, 15; 1 East., 64; 4 Wheat., 77; 7 Cow., 88; 6 Wheat., 119; 20 Wend., 241.)

It was competent for the Legislature to cast tho burthen of proof upon either party, and it is not our duty to resijfr the manifest intent of the Legislature, because the statute is in derogation of the common law, or because tbe rule established by it is supposed to operate oppressively upon land owners; they can escapo from its effects by paying their taxes. This Court feels bound, (in the language of Burchard, J., 14 Ohio R., 216,) to sustain tax titles which are legal, as well for the interest of the State as for land holders — as well to enable the former to compel each individual to bear his just proportion of the expenses of the government, as to prevent the property of the other from being sacrificed by a sale of many acres to pay a small tax, for want of competition, and on the supposition that the title would he worthless.

According to tho view wo have taken of this ease, by the production of the record of the deed of the Auditor General, the plaintiff made out a prima facia case, under the provisions of section sixty-five of tho act of 1843, unless tho objections founded upon tho deed itself, are valid, and we will now proceed to examine them.

The first objection which it is necessary to notice, is, that the deed ■did not recite the prior proceedings.

The statute under which tho deed was given, does not prescribe tho form of the deed, nor that it shall contain any recitals; it provides that on the presentation of such certificate of sale to. the Auditor General, after the expiration of the timo provided for the redemption of lands-sold, he shall execute to the purchaser, his heirs or assigns, a deed of the lands therein described.

The recitals in the deed, in evidence in this case, are abundantly sufficient; they are enough to show jurisdiction; they aver that the tax of 1841 had remained unpaid a sufficient length of time to subject the land to sale; that the land was sold by the county treasurer, and that the purchaser had presented the treasurer’s certificate for a deed. A collector in giving a deed, need not set forth a compliance with the statute, as to the acts to be done by him or the county treasurer, before giving the deed; it seems to be enough that the character in which he professes to give the deed, appears; and it seems that where no power is recited or referred to, specifically, the deed will be good, if a sufficient power be shown to have existed. (See Cow. and Hills notes, page 1291, note 472.) The recitals are not evidence in any case, unless made so by express provision of statute. (2 Barb. S. C. R., 113.) They need therefore, show no more than the capacity in which the Auditor acted; this would answer every valuable purpose. (4 Hitt, •86.)

But it is objected that the deed itself shows that the sale was void. This objection is predicated upon the assumption that the sale and deed were made under the provisions of chapter six of the R. S. of 1838, section 12, which limits a tax sale to tracts not containing more than 40 acres; but that act was repealed by section 49, page 9?, of the laws of 1842; also section 61, page 9?, of the laws of 1843, and section 11, page 162, of the laws of 1844; after the law of 1838 was repealed, there was no specific limitation as to quantity; the land was left “ subject to sale;" this objection, therefore, is not well taken.

It is also objected that it does not appear from the town records that the assessors were sworn. The R. S. of 1838, part 1st, title 4, chapter 1, section 43, page 64, provide that each assessor shall take an oath of office, in the form prescribed in that section; but it is not provided that the town clerk shall keep a record of the oath or of the fact that the assessor's were sworn; he may be sworn before any one competent to administer an oath, and the fact may be proved like any other act in pais. (21 Pick., 82; 5 Cow., 267; 14 Mass. R., 20; 24 Pick., 12.) Therefore, the absence of any record in the town books, of the fact that the assessors were sworn, does not furnish prima facia evidence that they were not sworn, and the defendant must make a prima facia case; he is not required to make plenary proof of a negative averment; it is enough that he introduces such evidence as in the absence of all counter testimony, will afford reasonable ground for presuming that the allegation is trae,' and when this is done, the onus próbandi will be thrown on his adversary. (1 Green. Ev., Sec. 78; 11 Ill. R., Graves vs. Bruen, 441.)

The defendant then offered in evidence, an assessment roll found in the office of the town clefk, and which was admitted to be the only assessment roll made up for that year, to which a certificate was attached, purporting to be signed by the 'assessors; to which the defendant raised sundry objections; and

1. He insisted that the assessment roll should have been signed by the assessors, and this was not done.

Sections seven, eight, nine and ten, of the R. S. of 1838, pages 81 and 82, prescribe the mode in which the assessment roll shall be made. Section eleven provides that when the assessors have completed their assessment they shall sign the same. It also prescribes the form of the certificate which is to be added thereto. Section 12 provides that the roll, being thus certified, shall within a time specified, be delivered by the assessors of each township, to the township clerk, to be retained in the township for the use of the commissioners of highways, until it is delivered to the county commissioners.

The counsel for the plaintiff insist that this provision of the statute .that the roll shall be signed by the assessors is directory — that if the roll was made up by the assessors, and this fact appears from the roll, the omission to sign is not fatal, as it sufficiently appears by the certificate that the roll was made by the assessors.

But it does not appear that the assessors ever signed the roll, nor that their signatures to the certificate attached to the roll, were admitted. This last suggestion in reference to the certificate is not stated in .the reeord, though it is taken in the brief of defendant.

The distinction between such irregularities as affect the validity of an assessment, and those which do not, is considered in the case of Tony vs. Millburry, (21 Pick. 64.) It was an action of assumpsit to recover back the amount of a town tax alleged to have been illegally assessed, the list of valuation and of assessment of polls and estates, did not exhibit, in distinct columns, the “ true value of the real estate,” and the “reduced value” as required by law, but contained a column of value. It was held that the irregularity did not render the valuation and assessment void. Chief Justice Shaw, in delivering the opinion of the Court, said: “In considering the various statutes regulating the assessment of taxes and the measures preliminary thereto, it is not always easy to distinguish which are conditions precedent to the legality and validity of the tax, and which are directory merely and do not constitute conditions. One rule is very plain and well settled, that all'those measures which are intended for the security of the citizen, for ensuring an equality of taxation, and to enable every one to know, with reasonable certainty, for what polls and for what real and personal estate he is taxed, and for what all who are liable with him are taxed, are conditions precedent, and if they are not observed he is not legally taxed— but many regulations are made by statute, designed for the information of assessors and officers, and intended to promote method, system, and uniformity in the mode of proceeding, the compliance or non-compliance with which does ■ in no respect affect the rights of tax-paying citizens, these may be considered directory. Officers may be liable to legal animadversion, perhaps to punishment for not observing them, but yet their observance is not a condition precedent to the validity of the tax.”

This subject is again considered (7 Barb. S. C. R, 133;) in the case of Yan Rensselaer vs. McCulloch & Shook, and it has a bearing upon this case in another respect, because it defines the character of the certificate which was attached to the roll in this case, and which, alone, seemed to be signed. It was- an action of trespass for taking and disposing of personal property. The action was brought against the collector, and also the supervisor who had signed the collection warrant. The defendants gave in evidence, the assessment roll, and the warrant of the board of supervisors to the collector for the collection of the taxes mentioned in the roll; to the warrant was annexed a copy of the assessment roll; annexed to the assessment roll was the certificate signed by the assessors; the assessment roll was also signed. Yarious objections were made to the assessment roll, and among others, that the certificate of .the assessors attached to the assessment roll was not either in form or substance such a certificate-as was required by law. In delivering the opinion of the Court, Harris, Justice, after stating the provisions of the law of New York, from which our revised statutes of1838, upon the subject of taxation were taken; and after stating various-provisions of the statute which he considers to he directory, says: “I think the certificate required by the 26th section of the law (the 11th section of our revised statutes of 1838, page 82,) is to be regarded as directory. If the assessors have performed their duty in making the assessment roll, as they may be presumed to have done, the certificate amounts to nothing more than a solemn declaration on the part of the assessors that they have performed such duty. It forms no part of their adjudication upon which the act of the board of supervisors is to be taken. It is but the evidence of what the assessors have done, and, therefore, it seems to me, would not even in a direct proceeding, bringing in question the validity of the assessment, be the subject of review. At any rate, the entire want of such a certificate, much less the omission of the assessors to adopt the form prescribed in the statute, could not invalidate a tax charged by the board of supervisors upon the pereons and property specified in the assessment roll, if the assessment itself was in all respects conformable to law.” How then can any effect be derived in this case from the certificate, supposing it to be signed by the assessors, if they might have omitted the certificate without invalidating the roll? It cannot be considered as taking the place of an essential requisite of the roll, viz: the signatures of the assessors to the roll.

In the case of Taylor vs. French, (19 Verm. R., 49,) the action was ejectment. The statute of Vermont-required that the return of the proceedings of the collector should be signed by him. The record showed a return of the sale, then a minute of the adjournment of the vendue, and then a minute that, it being found at the time to which the vendue was adjourned, that all the land was so Id and no mistake made, the vendue was dissolved, and the collector signed the minutes of the adjournment and dissolution only. It was held, that this could not be considered a signing of the anterior proceedings, and that the defect was fatal.

A private statute of the State of Maine required the assessors of a corporation to make perfect lists of assessments, under their hands, and commit the same to a collector, with a warrant under their hands and seeds. It was held in the case of Colby vs Russel et al., (3 Green., 227,) that the signing of the warrant, though it were on a leaf of the same book which contained the assessment, was no signing of the assessment, and that without a separate signature, the assessment was imperfect and invalid. The Court say: “The assessment is directed to he under the hands of the assess ore, and the warrant under their hands and seals; each should bear on its face the evidence of its official sanction, each being an independent act; the assessment must be recorded, the warrant need not be; the act does not authorize a warrant to be attached until it is a legal assessment; the acts to be performed are Successive and distinct, and both must be of themselves complete.”

Tn a case in (4 Green. R., 72,) a collector received an assessment roll, with no signatures of the assessors, but there was a good warrant attached to it — he collected money upon it. In a suit against his bondsmen for the money collected by him, it was'held they were not responsible, for he coidd not enforce the warrant, and therefore, it was not legal.

Chapter 2, title 5, part 1st, R. S., 1838, points out the duties of the assessors. Section 5 requires that as soon as an assessment roll is completed, the assessors are to give notice to the inhabitants of the town, that they may have an opportunity of having the assessment roll corrected; subsequent sections prescribe the mode of making the roll; but the statute does not suppose the roll to be perfect until the corrections are made; and then (in section 11) the assessors are required to sign the roll. In making the roll, the essential thing to be done by the assessors is, to determine who is to be taxed, and what property is taxable. This isa matter within.their jurisdiction — and in making their determination, they act judicially. They may err — the roll may not be perfect in all respects, as directed by the statute. But if the substantial object of the statute is attained, the assessment would not be void. Many matters are deemed directory, because the substantia] rights of the tax-payer [are not affected by them; but we cannot look upon the provision requiring the roll to be signed, as direetoiy. How-can it be said to be a roll if it has not the sanction of the signatures of the assessors ? The signatures are the evidence required by the statute of the completion of the roll by the assessors — of its being their official act — they are essential and component parts of a complete roll, without, which an assessment roll would have no more validity and effect than a deed would have if drawn up in due form, with a certificate of acknowledgment thereunder written, but the deed itself not executed. It mnw to be admitted that but for the signatures to the certificáte attached, to the roll, it would not be of any validity; but the certificate is no part of the assessment roll; it is not required or authorized to be attached, until the roll is complete in all that is required to give it validity, and make it an authentic exposition of the judgment of the assessors; it is to follow as a distinct act, after the roll is made; to declare on its face by the signatures of the assessors, that it is their finished work. The certificate contains a history of a past transaction. The reasons given for the invalidity of the rolls in the case cited by us, aro equally strong in this case. We are, therefore, of the opinion that the assessment roll exhibited in evidence, has no validity, and consequently could not furnish a legal basis for the proceedings which terminated in the giving of the deed. We do not think it important for the reasons given, to notice the objections to the certificate.

The date in the caption of the roll, is sufficient to show that the assessment roll was made for the year 1841,

It is further objected that it does not appear by the roll that it has ever been corrected. This would not appear if the roll was not corrected; and this would not be done unless it became necessary to do so; but the objection may have a more extensive bearing, and may point to corrections by equalization. It is provided in section 14 that the county commissioners shall examine the assessment roll, for the propose of ascertaining whether the relative valuations of the real estate in the townships respectively, have been equally and uniformly estimated; and it further provides, that if on such examination they shall deem such valuation relatively disproportionate, they shall equalize the same by adding to or deducting from the assessor’s valuations, &c., such per centum as shall produce equality. Section 15 provides that the commissioners may make alterations in the descriptions of non-residents, &c.; and if the alterations cannot be made, they shall strike out the faulty description. ■ Section 4 of chapter S, requires the commissioners to cause the assessment roll of each town, as corrected by them, to be delivered to the clerk of each township respectively. It is manifest, the alterations, if any, in the description of the lands, must be made in the original roll, after the rolls are equalized, which is not required to appear on-the original roll given to the town clerk; a copy is made, to which the taxes are added; no object is to be attained by making a statement of the equalization, upon the town roll; it need only appear in the records of the commissioners or supervisors; they alone have to deal with the equalized amounts, and make out the taxes, and add them to the copy of the roll, to be placed in the hands of the collector. It does appear from the records of the commissioners in evidence in this case, that the town rolls were equalized.

It is further objected that the description of the land and mode of assessment is defective. The name of Clark Lewis is written in the margin, and then the description of the land is given opposite to it in the same line, as follows: E. \ S. W. \ section 24, town 3 south of range 7 west, 80 acres, &c. This mode of describing lands in tax rolls and other documents, has prevailed for many years in this State; it is perfectly intelligible and can leave no doubt what is meant; the figures are to be read in connection with the captions. Mr. Webster, in his unabridged, dictionary, page 275, says E as an abbreviation, stands for east, and W for west; (page 1243,) and S stands for south. When used in a proper connection, these abbreviations are plain, and valid in law. The act of 1844, page 161, section 8, provides that it shall be sufficient to describe lands assessed or sold for taxes in the manner heretofore in use, by initial letters, abbreviations, and figures; this shows that the usage had prevailed and that it was perfectly understood; it is a legislativo recognition of the correctness of this mode of describing land. We think this objection untenable.

This case was made upon the assumption that the plaintiff was bound to prove the regularity of all the proceedings prior to the deed, and it was presented in this light by the defendants’ counsel, whilst the counsel for the plaintiff insisted that the burthen of proof was thrown upon the defendants after the deed was proved. In the view we took of the case, it became necessary to assume that the defendants were bound to show some illegality in the proceedings to rebut the evidence produced by the plaintiff, and therefore, that all the proof subsequent to the deed, was offered by them as bearing upon the deed; otherwise, vre would have been compelled to assume that the defendants introduced the assessment roll to overcome the plaintiff’s proof, and rested their case there; and that the plaintiff, not conceding to the defendants the effect claimed by tbem for this proof, but to guard against the possible contingency that the defense would prevail, had attempted to strengthen his own ease by evidence which was entirely unnecessary if the defense was of no account, and was useless and irrelevant if the defense had weakened his case and cast the burthen of proof upon him, because it did not bear in the slightest degree upon the point of attack, hut related to matters subsequent to the roll, which were of no importance if the roll was not good. We have, therefore, considered all the proof subsequent to the deed, as offered by the defendants. Our decision that the assessment roll was void, would seem to make it unnecessary to notice the balance of the proof, as having been introduced by the defendants: some of it tends to shew that a portion of the proceedings were regular, and the balance of it is unimportant, because it is not only inconclusive upon the points to which it relates, hut does not raise the presumption that there is not other proof, and of a higher grade, entirely conclusive upon those points, and within the reach of any one who may choose to seek for it.

Let it he certified to the Circuit Court, as the opinion of this Court, that the assessment roll, offered in evidence in this case, is void, and consequently, as the subsequent proceedings were predicated upon it,, they are also void, and cannot entitle the plaintiff to a judgment.


source: Caselaw Access Project

author: By the Court, Whipple, J.

license: Public Domain

text:
    Farmers and Mechanics Bank vs. Kercheval.
    A bond having been executed by defendant to plaintiffs, reciting: That whereas, 3?. O. & Co., were then, or might thereafter become indebted to plaintiffs, in divers sums of money, and might become liable from time to time, to pay plaintiffs divers sums of money, to the amount of $3000, by means of notes, discounts, and over-drafts made and endorsed by-said P. C. & Co., and for their benefit, and conditioned that if said P. C. & Co., should pay, or cause to be paid to plaintiffs, all and singular, the notes, &c., made by said P. C. & Co., and for their benefit, to the amount of $3000, and should pay or cause to be paid to said plaintiffs, all said liability assumed by the said P. C. & Co., to the amount of $3000, then said obligation to be void, otherwise to remain in full force and effect for three years from January 1, 1837, unless notice to the contrary should sooner be given to the plaintiffs: Held, that the bond was a continuing guaranty, and intended to cover successive notes, discounts, and over-drafts, made by P. C. & Co., at auy time within the limited period, as often and whenever the antecedent transactions were discharged: Held, also, that demand of the principal, and notice to the guarantor, at the close of the period covered by the guaranty was not neoessfiry.

      Notice of the acceptance of a guarantee by the creditor, is not required to be given to the guarantor.
    No-general rule can be laid down in respect to demand and notice in the case of guaranties, but where, from the terms of a guaranty, or the facts disclosed in a given case, demand • , and notice is required, the omission of demand and notice cannot be available as a defense, unless the defendant can show that he has suffered loss or damage thereby.
    Where a guarantor obligated himself to pay all the liabilities up to a sum certain, of the principal for advances by way of note’s, &c., if the principal should fail to pay tho same, such obligation “ to remain in full force and virtue for tho space of three years from the 1st day of January, 1837;” and for the notes constituting the indebtedness so guarantied, new notes, were taken within the three years, filling due after the three years: Held, that such credit to the principal, beyond the time limited in the‘bond, was in contravention of the contract of the"guarantor, and discharged his liability as surety.
    Plaintiffe, in renewal of the notes of a firm, which they held, and which were secured by the guaranty bond of a surety, took the individual notes of a member of the firm, payable at a future time, signed in this wise: “For late firm of Pease, Chester & Co. ¥m.J. Pease.” Held, that although time might not be given thereby, to all the members of tho firm, it was given to the maker of the renewal notes, and the surety was consequently discharged from his obligation.
    Case reserved from Wayne Circuit.
    This was an action of debt brought on the following bond :
    "Know all men by these presents, that I, Benjamin B. KercbevaJ, of the town of Detroit, in the County of Wayne, and State of Michigan, am held and firmly hound unto the President, Directors, and Company of the Farmers and Mechanics Bank of Michigan, in the penal sum of' six thousand dollars, to he paid to the said President, Directors, and Company of said Bank, or to their assigns or legal successors in office, to the which payment well and truly to be made, I hind myself, my heirs, executors, and administrators, each and every of them, firmly by these presents. Sealed with my seal; dated this eighth day of May, A. D., 183?.
    “Now the condition of this obligation is such, that, whereas, Pease, Chester, & Co., are now or may hereafter he indebted to said President, Directors, and Company of the Farmers and Mechanics Bank of Michigan, or their assigns or legal successors in office, in divers sums of money, and may from time to time become liable to pay to the said President, Directors, and Company of said Bank, divers sums of money to the amount of three thousand dolíais, by means of notes, discounts, and over-drafts, made or endorsed by the said Pease, Chester, & Co., and fiar their benefit: Now, therefore, if the said Pease, Chester, & Co. shall pay or cause to be paid to the said President, Directora, and Company of said Bank, their assigns or legal successors in office, all and singular the jiotes, discounts, and over-drafts made by the said Pease, Chester, & Co., and for their benefit, to the amount of three thousand dollars as aforesaid, and shall pay or cause to be paid to the said President, Directors, and Company of said Bank, or to their assigns or legal successors in office, all said liability assumed by the said Pease, Chester & Co. to the amount of three thousand dollars as aforesaid, and shall pay or cause to be paid to said Preisdent, Directora, and Company of said Bank, their assigns or successors in office, all costs, charges, and expenditures that may accrue by collection of said sum, or any part thereof, by due process of law, and shall save harmless from all and every such advance made to the said Pease, Chester & Co., and for their benefit, then and in that case, this obligation to be void, otherwise to remain in full force and virtue for the space of three years from the first day of January, A. D. 183V, unless notice is givon to the said President, Directora <& Co., of the Farmers and Mechanics Bank, to the contrary.”
    To the declaration, defendant plead the general isssue, and gave notice' of the special matter following; that the plaintiffs gave time to the principal debtors mentioned in the bond, for the payment of the notes, &c., and continued to give time thereupon, from time to time, until the months of January and February, 1842; that the notes of the firm of P., C. & Co., were given to the said Bank, for the amount specified in the bond, and that said notes were paid and renewed from time to time, until November and December, 1841; when in renewal of notes of the same indebtment, plaintiffs accepted and received for the same indebtment specified in the bond, four certain promissory notes, payable at fixture periods, each signed, “For the late firm of Pease, Chester & Company : Wm. J. Pease.” And further, that said film of Pease, Chester & Co,, did pay to the plaintiffs, for money advanced to them, &c., divers sums of money, to the amount of $3000, according to the condition of the said bond; and further, that no notice was given to the defendant of the amount of the several sums of money advanced to said firm, either by way of note, discount, overdrafts, or of the non-payment of the same, nor of the amount remaining due, and claimed of the said defendant, at the expiration of the three years specified in the bond.

      On the trial of the cause, the execution of the bond was admitted, and the questions of law arising upon the pleadings, and the following statement of facts, agreed to by written stipulation, were reserved for the consideration of this Court.
    On the 8th day of May, the date of the bond, Wm. J. Pease, John Chester, and Tarleton Jones, were partners in trade, under the name and style of Pease, Chester & Co., and so continued until January 1st, 1840, at which time the firm was dissolved, and notice of the dissolution given in the newspapers of the city of Detroit, their place of business, and that the business of said firm would be closed by Wm J. Pease, one of the partners.
    At the time of the expiration of the bond, said firm was indebted to the plaintiffs in the sum of §3,500, by reason of notes, discounts, and over-drafts, made and indorsed by them prior to that period, from time to time, and upon transactions continuing during the period of three yearn, between January 1st, 1837, and the 1st day of January 1840; during which period said firm paid the plaintiffs on said notes, discounts, and over-drafts,- more than $3000, leaving, however, the above balance due upon said discounts, notes, and over-drafts, for said period. The notes constituting this indebtedness, four in number, all fell due after January 1st, 1840, and were all taken in renewal of several notes previously discounted, and all of which, except one, were several times previously renewed. After the dissolution of the firm of Pease, Chester & Co,, Pease assuming to act for the firm, but without authority other than his general authority to settle the affairs of the firm, contained in the notice of dissolution, executed four notes to the plaintiffs, for the respective amounts of the four notes before mentioned, for and on'account of said indebtedness of said firm to the plaintiffs, and the plaintiffs’ cashier delivered to said Pease the four notes of the firm. The notes so executed by Pease, were signed, “For the late firm of Pease, Chester & Co.: Wm J. Pease;” and the notes were renewed from time to time, in the same manner, by Pease, assuming to act for said firm; and all said renewal notes, signed by said Pease for said firm, but without other authority than above specified.
    No notice was given to the defendant of. the non-payment of said balance by said firm, or of the giving and non-payment of any note, discount, or over-draft, constituting a part thereof at the making thereof, or at the time it fell due, or immediately after the expiration of the. three years mentioned in said bond; but defendant had notice of the. balance due, previous to the commencement of the suit, and that the. plaintiffs expected payment from him.

      Barstow é Lockwood, for plaintiffs.

      Joy & Porter, and A. J>. Fraser, for defendant.
   By the Court, Whipple, J.

The first question presented for our consideration, is, whether the bond was intended as a continuing guaranty to the amount of $3000 for the period of three years, commencing on the 1st of January 1837, and ending on the 1st of January, 1840. The plaintiffs insist that this is the only reasonable construction to be given to the bond; on the other hand, while it is admitted by the defendant, that successive advances, to the amount of $3000 might be made during the period covered by the guaranty, yet it is contended that when advances- to that amount are actually made, the thing contemplated in the recital has occurred, and that upon the payment by Pease, Chester & Go. of such advances, the condition of the bond was ñilfílled. Dming the argument, adjudged cases were referred to by counsel on both sides, -which, in their facts and circumstances were supposed to bear a close analogy to the case under consideration. These cases have been carefully examined. To analyze them and show their application to the question I am now discussing, would extend this opinion to an unreasonable length, without attaining any valuable end. Guaranties of this description have assumed every imaginable form, and while some aid may be derived in expounding them, from adjudged cases to be found scattered in the English and American Reports, it may be confidently affirmed that the safest guide to follow, is the application to the facts of each case, of those rules of interpretation peculiar to this class of contracts, and which rest on the solid foundation of good sense, and the uniform opinion of the most enlightened jurists. It is proper to observe that commercial guaranties are frequently written without that care usually bestowed upon instruments of a more solemn character, and by persons who do not profess any knowledge of those technical rules which are applied to the construction of written instruments. They are often written without special regard to the language employed, or to the collocation of words or sentences. This carelessness has been the fruitful source of perplexing litigation. In their interpretation, therefore, a wide latitude is necessarily allowed in discovering the intention of the parties, and it is the duty of Courts to reject those subtle and refined distinctions sometimes resorted to in expounding other instruments. "While it is true that persons standing in the relation of sureties will not be held, unless an intention to bind themselves is clearly manifested, it is to be remembered that guaranties have come to bo extensively used in commercial transactions, and that a narrow and restricted rule should not be applied to relieve parties to such instruments from what appears to have been engagements fairly and voluntarily assumed. We cannot, then, sanction the rule of construction so shongly insisted upon in argument, and hold instruments of this nature to be strictissimi juris as to their interpretation.

The case does not disclose the precise nature of the business in which Pease, Chester & Co., were engaged, but' enough is exhibited to show that it was of a character which rendered frequent transactions with the "bank necessary, during the existence of the co-partnership, which continued three years. Keeping in view the principles and facts to which I hare adverted, the question reverts, whether the guaranty contained in the bond is a continuing guaranty, or whether it was intended to cover advances to the extent of $3000, and ended when payment of that amount was made. After a careful consideration, I am of- opinion that the more enlarged construction contended for by the plaintiffs, is correct^ and that the guaranty was intended to cover successive advances made to the firm during the entire period specified in the bond, and that the defendant rendered himself liable to the extent specified in the condition of the bond, for any balance that might be found due the hank bn the 1st of January, 1840. This conclusion seems to flow necessarily, from the language and manifest object of the bond. A contrary construction is utterly irreconcilable with the intention of the parties, to be gathered from a survey of the whole instrument. The recital “ that whereas, Pease, Chester & Co., are now, or may hereafter, from, time to time, become indebted to said President, Directors & Co. of the Farmers and Mechanics Bank of Michigan, &o., in divers sums of money, and may from time to time become liable to pay to the said President &c., divers sums of money, to the amount of three thousand dollars,” &c., is conclusive to show that a series of transactions was contemplated, and is utterly irreconcilable with the idea that a single transaction was intended, or that successive advances to the amount of $3000, being made by the bank, and re-paid by Pease, Chester & Co., determined the liability of Kercheval. Again, Kercheval’s obligation is, at the conclusion of the bond, to continue “fortbe space of three years from, the 1st of January, 1837, unless notice is sooner given.” This language very clearly imports a continued liability for the period specified, and seems repugnant to the notion advanced in argument, that a credit given of $3000, and its re-payment, put an end to Kercheval’s liability. This view appears to me so obvious, that I forbear a particular examination of a large number of cases which have come under my observation, and will content myself with a general reference to a few, which abundantly sustain the opinion I have expressed upon this feature of the ease. (See Mason vs. Prichard, 11 East., 227; Clark vs. Burdell, 2 Hall, 197; Hargreave vs. Smee, 6 Bing., 224; Douglass et al., vs. Reynolds et al., 7 Pet., 113; Barton vs. Bennett, 3 Camp., 220; 2 Howard, 42; Williams et al., vs. Rawlinson, 11 E. C. L., 34.)

Upon the assumption that the liability of Kercheval was continuous, it is further contended on his behalf, that when all the transactions between the bank and Pease, Chester & Co., under the guaranty, were closed, notice of the amount for which the guarantor was held responsible, should have been communicated to him within a reasonable time. It is not to he disguised, that in respect to this question, there has been a wide diversity of opinion among American jurists. It is asserted by counsel to be a general principle of the law of guaranties of universal obligation, irrespective of the form in which they are given. As notice is not expressly required by the terms of the bond, it becomes necessary for the defendant to establish the principle for which he contends, Is it then, true, that notice in all cases, and under all circumstances, is an incident of the contract of guaranty?

If this question is answered in the affirmative, it must be on the principle that “whore an agreement is of "known and general nature, it is understood to express the circumstances which are commonly incident to it; these are necessarily presumed to be in the.contemplation of the parties.” Let us now see, how far instruments of the nature I am considering, are controlled by any established principle of law, or affected by commercial usage, well known to commercial men, and sanctioned by a series of judicial decisions of unquestioned authority.

The ease most strongly relied on by the defendant’s counsel to support the legal theory they have advanced, is reported in (7 Pet, 113;) Douglass et al. vs. Reynolds et al. This action was on a letter of credit written by Douglass & Co., authorizing Reynolds & Co. from time to time to aid one Haring by advances of cash, acceptances, or indorsements, and that they would be responsible for a sum not exceeding $8,000. This was held by the Supreme Court of the United States to be a continuing guaranty, and intended to cover successive advances, acceptances, and indorsements, to the amount of $8,000, at any subsequent times, toties quoties,. whenever the antecedent transactions wore discharged. This decision confirms, very strongly, the views I have taken respectingRhe construction of the bond in question. It was further held, that in order to entitle the plaintiffs to recover, they must prove that notice had been given to the defendant of that fact in a reasonable time after the guaranty had been accepted. Some general reasons are given in support of this proposition, but no cases are cited to confirm its accuracy. Whatever views we may be inclined to take of this question upon a ease presenting the same state of facts, it is unnecessary to determine, but we think that no notice of acceptance, other than that which the law implies, was necessary in the case before us.. The bond is an original collateral agreement, absolute in its terms, limiting the liability ot the defendant, and the time within which credit was to be given. The delivery of the bond by the defendant, and its acceptance by the bank, were contemporaneous acts; this is all the notice of acceptance the law exacts. In the present ease,, as in the one cited, it is also clear- that notice of each successive advance was not required. But the Court further held, “that when the transactions between the plaintiffs and Haring under the guaranty were closed, notice of the amount for which the guarantors were held responsible, should, within a reasonable time afterwards, be communicated to them." la support of this ruling, Mr. Justice Story remarked, that, “by the very terms of the guaranty, as well as by the general principles of law, the guarantors are only liable upon the failure of the principal debtor to pay the debt. A demand upon him, and a failure on his part to' perform his engagements, are indispensable to establish a casus foederis" It was upon this reasoning that the principle I am now discussing was upheld. No cases, English or American, are arrayed in its support. 'The guaranty, in that case, certainly does not, in terms, require'a notice; if a notice, therefore, was indispensable to establish a casus foederis, it must result from some general principle of law, by which notice is made an indispensable incident to the contract of guaranty, and presumed, - therefore, to be in the contemplation of the parties.

I have given to this question a very careful and extended examina- ' tion, and confess' myself unable to extract from the English cases on 'this subject, a principle co-extensive with that laid down by the Supreme ■Court of the United States. That it is not supported by the subsequent decisions of that learned tribunal, and is restricted in an important sense, by the eminent Judge who pronounced the opinion, in cases involving the same principle, it will now be my endeavor to show. Thecate of Reynolds et al., vs. Douglass et al., was again brought before the Supreme Court of the United States, and is reported in (12 Pet, 497.) It will be remembered that the action was founded on a guaranty, the terms of which have been stated. On the trial, eight bills of exchange drawn by Haring on the plaintiffs, amounting to $8000, and which were accepted and paid by the plaintiffs, were given in evidence. " In delivering the opinion of the Court, Mr. Justice McLean says: “The question is fairly raised whether the insolvency of Haring, either prior to, or at the time of payment, wiE excuse the plaintiffs from making a demand on him, and giving notice to the guarantors.” After an examination of cases, English and American, on the subject of notice, the learned Judge proceeds to remark, that “the rule is well settled, that the guarantor of a promissory note is bound, without notice, where the maker of the note was insolvent at its maturity. That his liability •continues, unless he can show that he has sustained some prejudice by •want of notice of a demand on the maker of the note, and non-payment.” “In the case before us,” (continues Judge McLean,) “there is no pretense that the defendants have sustained any injury from a neglect of the plaintiffs to make a demand on Chester Haring for payment of-the balances against him in the account current.” And again: “But if the defendants could prove they had suffered damage by the neglect of the plaintiffs to make the demand and give notice, according to the case of Van Wart vs. Woolley, (3 Barn. & Cres., 439,) they could only be discharged to the extent of the damage sustained.” In the case of the Louisville Manufacturing Company vs. Welch, (10 Howard, 461,) the same question was fully considered by the Supreme Court of the United States, and the rule as laid down in (12 Peters, 497,) was reaffirmed. In reviewing the case in (7 Peters, 126,) Mr. Justice Nelson ■uses this language: “When the case came before the Court a second ■time, which is reported in (12 Pet., 497,) the principle here stated was somewhat qualified, the Court holding, that in case of the insolvency of •the principal debtors, &e., the demand and notice might be dispensed with.” After referring to the distinction between the liability assumed by a guarantor, and that of the,drawer or indorser of commercial paper, Judge Nelson affirms that the former are held liable in the absence of any demand and notice, unless some damage or loss has been sustained by reason of the neglect. In discussing the necessity of demand and notice, when the transactions are closed, and the amount for which the party intended to look to the guarantor for payment, is ascertained, the learned Judge further remarks: “We perceive no reason why the rule in respect to notice should be more strict in this stage of the dealings of the parties, than at the time when the debt becomes due; or that the guarantor should be discharged for the delay in giving notice, when no loss or damage has resulted to him thereby.” These adjudications show, very conclusively, that the doctrine in respect to demand ■and notice, as stated in (7 Pet., 126,) has been qualified in a very important particular, by the Supreme Court of the United States, and . it may be safely assumed that it is no longer regarded as authority by ■ that tribunal

if The opinion pronounced by Mi. Justice Story, in the case of Wildes et al. vs. Savage, (1 Story R., 22;) -contains a full vindication of the ruling of the Supreme Court in the cases of Reynolds et al. vs. Dolass et al., (12 Pet. 497;) and of the Louisville Manufacturing Company vs. Welch, (10 How., 461.) The doctrine of these cases is sustained in the following clear and pointed language: “I take the doctrine to be clearly settled, that upon a guaranty, to discharge the guarantor,, there must not only be a want of notice within a reasonable time, but there must also be some loss or damage sustained by the guarantor, and that if there be a loss or damage, that the guarantor is not totally discharged, but only pro tanto to the amount of the loss or damage.” The learned Judge illustrates this rule by the following example: “If' the debtor is solvent when the money becomes due, and no notice is-given to the guarantor, and the debtor afterwards, and- before notice, becomes insolvent, the guaranty is discharged.” The case last cited, is in affirmance of the same principle established in the case of Cremer vs, Higginson et al., (1 Mason, 323;) as early as 1817. It is there said, that “if notice was not given in a reasonable time, nor until after a material change in the circumstances of the debtors, such laches of the plaintiffs was a complete discharge of the defendants from their guaranty.” In the case of Cannon vs. Gibbs, (9 Serg. & Rawle, 202;) it is held that the guarantor is discharged where the drawer or indorser are solvent at the time the note became due; but when both are insolvent, notice might be dispensed with, the presumption being that the guarantor was not prejudiced by the want of notice. To the same effect is the opinion of the Supreme Court of Massachusetts, in the case of the Oxford Bank vs. Haynes, (8 Pick, 423.) The opinion of Mr. Justice Cowen, in Douglass vs. Howland, (24 Wend., 35;) contains a very extended and careful review of the cases on this subject, and arrives at the conclusion, that the doctrine contended for by the defendant is unsupported by any English case, and has no foundation in English jurisprudence. My own researches have conducted me to the same conclusion. Warrington et al. vs. Fowler et al., (8 East., 242;) Van Wart vs. Woolley, (3 Barn. & Cress., 439;) Holbrook vs. Wilkins, (1 Barn. & Cress., 10;) Hitchcock et al. vs. Humfrey, (44 Eng. Con. Law, 296;) are a few of the English cases on this subject. The one last cited seems to have been decided upon the fullest consideration of all the English authorities bearing on the question. This subject was considered by the Supreme Court of Vermont, in Train vs. Jones, (11 Ver. 444.) The views of Mr. Justice Redfield sustain to the.fullest extent the doctrine that neither demand or notice was required.

Upon principle, I am unable to perceive how this ground of the defense can be sustained. The necessity of demand and notice must, I think, depend upon the nature of the contract, and the intention of the parties. When the intention cannot be clearly ascertained on the face of the contract, in consequence of -some obscurity in the language, resort must be had to legal construction, for the purpose of supplying defects of expression. As contracts of guaranty may be infinitely varied, it would seem that no general rule can be laid down, in respect to demand and notice. If there is an absolute guaranty, that a third person shall pay a certain sum, at a specified time, or that the guarantor will undertake the performance himself, it is difficult to comprehend upon what principle dih'gence can be exacted of the creditor. Where, however, the guarantor restricts his undertakings, a different rule should be applied: if for instance, his undertaking is, that the debt of a third person is good, or can be collected, it is equally clear that diligence is required. Without devoting further time to this feature of the defense, I think it may he regarded as settled, both upon principle and authority, that if á demand and notice is required, upon the facts disclosed in the record, it cannot be made available as a defense, unless the defendant can also show that he has suffered loss or damage.

The next question presented for our consideration is, whether the liability of Kercheval, under the bond, could be extended beyond the period of three years from the 1st day of January, 1837; or whether, in other words, it was competent for the bank to extend the credit to be given to Pease, Chester & Go., beyond the period of three years. The solution of this question must depend upon the intention of the palies as manifested in the bond. It is not to be disguised that there is a good deal of intrinsic difficulty in determining what that intention was, in consequence of the loose and artificial manner in which the bond is drawn. If it was intended to cast obscurity upon this question, the parties could not have selected language more appropriate to accomplish that purpose. What, then, was the extent of the obligation of Kercheval, to be fairly deduced from a-careful survey of the whole instrument? Stripped of the useless verbiage with which that obligation is clothed, I think it may be thus stated: Whereas, Pease, Chester & Co., are now, or may hereafter become indebted to the Farmers and Mechanics Bank from time to time, in the sum of $3000, by reason of notes discounted by said bank for the said firm; or, in consequence of discounting notes, upon which the said firm appear as indorsers, but for their benefit; or in-consequence of over-drafts made by said firm: now, therefore, in order to secure the said bank against any losses growing out of advances made as aforesaid by the said bank to the said Pease, Chester & Co., the said Kereheval agrees that if the said firm of Pease, Chester & Co., shall fail to pay all such advances made by the bank within the period of three years from the 1st day of January, 1837, then the said Kereheval obligates himself to pay all such advances, and any balance that may be found due at the expiration of said period, provided the same does not exceed $3000: Kereheval also obligates himself to pay all costs, charges, and expenses, that may be incurred by the bank, should it have recourse to legal proceedings to collect the sum so advanced: Kereheval reserves to himself the right to put an end to his liability before the 1st January, 1840, by giving the bank notice to that effect.

If I have succeeded in stating in a simple form, the true meaning of the parties to the bond, it now becomes necessary to determine, whether it was contemplated by them that credit should be extended by the bank to Pease, Chester & Co., beyond the specified period, although advances by way of discounts, were actually made within that period.

I have said that the bond contemplated advances by the bank to Pease, Chester <fc Co., from time to time, in either of the forms therein specified; and that to. secure the bank against eventual loss, Kereheval agreed to stand in the relation of surety for the firm, for an amount not exceeding $3,000. The reason for adopting this form of security is obvious. It was foreseen by the parties, that the firm would, in the prosecution of their business, require frequent advances, either by way of discounts or over-drafts, and that it would be more convenient that some person, in whose responsibility the bank had confidence, should, by some instrument stand as security for the stipulated amount, during the entire period for which such advances were to be made, rather than adopt the usual mode of procuring an indorser for each separate transaction. Especially was this necessary, in as much as over-drafts were contempla-» plated by the parties, for which the bank would naturally .require some security. What construction, then, should he given to that clause in the bond, which declares that Kercheval’s obligation shall “remain in full force and virtue for the space of three years from the first day of January, A. D., 1837.” ■ From a comparison of this clause with other clauses in the instrument, and the object intended by the bond, I am of opinion, that Kercheval never contemplated that a credit extending beyond the specified period should be given by the bank to Pease, Chester & Co., and that such is the true construction of the bond. What obligation, it may be asked, was to continue in force for three years from the first of January, 1837 ? The answer to this question, is, I think, that Kercheval bound himself to pay an amount not exceeding $3,000, for advances made to the firm by the bank between the two periods specified in the bond, and for any balance that might be found due on the 1st of January, 1840, in the event of a default on the part of his principals to fulfill the obligation. If a credit extending beyond the 1st of January, 1840, could he given to Pease, Chester & Co., then Kercheval’s obligation would also continue beyond that period, and thus the bond which was to remain in force for three years from the first day of January, 1837, might he extended to an indefinite period. The circumstance that his liability covered any balance arising from overdrafts, would seem to strengthen the views I have expressed. If this liability was to arise from discounted paper alone, it might he argued that advances made in this way before the 1st of January, 1840, might be made payable after that time. But it is to he observed that advances by way of over-drafts were contemplated, and I imagine it cannot be contended, with any show of reason, that Kercheval could, under the bond, he liable for over-drafts subsequent to that day.

Another fact may he referred to, as by no means unimportant in giving a construction to the bond. While it does not appear affirmatively from the case that the co-partnership of Pease, Chester & Co., commenced on the 1st of January, 1837, and was to terminate by its own limitation on the 1st of January, 1840, yet it may reasonably be inferred that such was the agreement, as the co-partnership was in fact dissolved on that day, This may account for the insertion of that clause in the bond, declaring that it should continue in force for three years from the 1st of January, 1831. If this view he correct, it affords the strongest presumption that the parties did not contemplate a credit extending beyond the continuance of the co-partnership; and that Kercheval had the right, on the 1st of January, 1840, to call at the bank and ascertain and liquidate any advances made to Pease, Chester & Go. covered by the bond, and to be substituted to the rights and remedies of the creditor, or, if he chose, to resort to his remedy in equity, to secure himself against loss. This he was precluded from doing, because the recovery in this case is sought on four notes dated in the months of November and December, 1839, and payable after the first day of January, following. A credit, then, having been extended to Pease, Chester <fc Co., in contravention of the contract made between .the bank and Kercheval, it follows that the latter is not liable.

There is another aspect in which the case may be viewed, equally decisive of the claim set up by the bank. It cannot, with any show of reason, be contended, that Kercheval’s liability could be indefinitely extended; but it might be argued, that as advances by way of discounts were to be made by the bank to Pease, Chester & Co., if notes were discounted previous to the 1st of January, 1840, although made payable after that period, Kercheval would be liable upon his bond, provided the notes were discounted according to the well known usages of the bank. This construction of the bond, it may be said, is justified, because the usages of the bank, in respect to the time usually given on discounted paper entered into the contemplation of the parties when the bond was executed and delivered. Assuming, then, that this position is well founded, and that the usage of the bank in the particular’ stated was supported by proof, and that the notes were discounted pursuant to such usage, the question would arise, whether Kercheval has not been released by some act or default of the bank. From the case, it appears, that after the dissolution of the co-partnership, notes in renewal of those discounted previous to 1st of January, 1840, were executed by Pease, for and in behalf of the late film of Pease, Chester & Co. When these notes were executed, the fact of dissolution was well known to the bank; the notes, themselves, furnished on their face the evidence of the fact. The authority of Pease thus to execute, in the name of the firm, nego'fciable securities in behalf of the firm does not appear to have been questioned, although it is well settled, that such an act would not hind the late firm, unless a special authority to do the aet was conferred upon Pease. Upon this point there is no evidence. If we assume that full authority was given, and that Pease executed the notes in pursuance of said authority, it is then very clear that the time of credit would he extended beyond the period prescribed by the more enlarged and liberal construction of the bond, and that Kercheval is discharged from his liability. If, however, no special authority in fact existed, the notes so given did not hind the firm, but were in law the individual notes of Pease. If the notes, in renewal of which, those executed in the form stated were given, were actually canceled upon the delivery by Pease to the bank of bis individual notes, it might he argued that these last operated as payment of the former, and that Kercheval was discharged from his ■obligation. But it is unnecessary to pass upon the question. The acceptance by the bank of Pease’s individual note, in renewal of those executed by the firm, operated as a release of Kercheval. This consequence is legally deducible from such a state of facts; for although time was not given to all the members of the firm, yet time was given to Pease, and until the expiration of the credit given to the latter, the hank could notbave sued the several members of the firm. If the bank could not sue, it follows, that Kercheval, by paying the indebtment of the firm, was also precluded from sueing until the expiration of the period of credit given to Pease.

In any view, therefore, that can he taken of this case, it appears to us that upon the facts reported, judgment should be entered for the defendant, and it must so'be certified.