author: By the Court. Duer, J. Bosworth, J.

text:
    Henry C. Bowen, et al., v. Zenas Newell, and others
    (Before Duer, Campbell, and Bosworth, J.J.)
    December 12;
    December 31, 1853.
    The action was against the defendant, as endorser of a cheeh, payable at t hank in Connecticut, on a day subsequent to its date, which was presented ftr payment on that day, and due notice of its dishonor given to the defend®!. It was proved on the trial) that it was the usage of all the hanks in Comeotiout not to allow days of grace upon checks on time, and that, by the laws rf Connecticut, the allowance of grace is governed by usage.

      Held, that evidence of the usage, and of the law, of Connecticut was properly admitted) find established, conclusively, the right of the plaintiff to Mover,
    Judgment accordingly.
    This action was brought to recover of the defendant, Searls as makers, and the defendant, Newell, as endorser, ths amount of the check following,
    “ $2,000, New York, Oct. 5th, 1549.
    “Cashier of the Thompson Bank.—Pay Zenas Newell, or order, two thousand dollars, on the 13th instant,
    (Signed,) “ Bella Seakls & Son,
    (End,,) “ ZeUas Newell.”
    This causé Was formerly tried in this court, whei it was decided that the check in question was not, on its face, by law, entitled to days of grace; and that; however that night he, proof of a custom of the Thompson bank; and other lanks in Connecticut, to pay subh checks according to their hce was admissible, and controlled the parties to such Check, Jndg ment having been given for the plaintiffs, the Court of Appeals granted a new trial, and a majority of that court held, that the check on its face was entitled to grace; and that this being the law, and the check being, according to this rule of law, payable three days after the day named on its face—proof of a usage contrary to the law, and that it was payable according to its face, was not admissible to control the parties.
    The following opinion of the Court of Appeals, was delivered by Mr. Justice Johnsont

      61 Johnson, J.'—The main question in this cause is, whether an instrument in the following form is, or is not, entitled to days of grace s
    66 £ New York, Oct. 5th, 1849.
    “£ Cashier of Thompson Bank.—Pay Zenas Newell, or order, two thousand dollars, on the 12th instant.
    (Signed,) £í £ B. Seabls & Co.
    (Endorsed,) 66 6 Zenas Newell/
    6£ The Thompson bank is in the state of Connecticut. Whether days of grace are to be allowed upon this instrument does not depend Upon its being drawn upon a bank, for in that ease the rule would be general, and deny grace to all bills drawn upon banks. The contrary was adjudged in respect to a bill drawn at sixty days after date, in Woodruff v, The Merchants’ Bank (25 Wend. 073); S. C. in error (6 Hill, 174), I do not see what difference, in the legal rights of the parties, it would have made if the check in suit had been worded 6 seven days after date/ instead of saying 5 on the 12th instant/ and yet, if it had been those words, there would have been no possible ground for distinguishing the case from Woodruff v. The Merchants' Bank. No Case holds to the Contrary, except In the matter of Brtym (2 Story, 502), In that case, however, Judge Story puts his opinion upon a variety of grounds besides this, and upon this, his opinion does not seem to me capable of being sustained. He says, 6 The agreement pressed is, that checks are always payable on demand, and that when-payable at a future time, they become inland bills and after saying, that ‘ a check is not less a check for being post-dated,’ (with which Mohawk Bank v. Roderick agrees, 13 Wend. 133, S. C., 14 Wend. 344,) he adds, ‘it is commonly, though not always payable to the bearer ; but I conceive it to be still a check if drawn on the bank or banker, although payable to a particular party only by name, or to him, or to his order. It is usually also made payable on demand, though I am not aware this is an essential requisite. The distinguishing characteristics of checks, as contra-distinguished from bills of exchange, are (as it seems to me), that they are always drawn upon a bank or banker ; that they are payable immediately on presentment, without the allowance of any days of grace; and that they are never presentable for acceptance, but only for payment.’ Of all these characteristics, the only one that can serve any purpose in determining whether any particular instrument is a check or a bill of exchange is, that it is drawn upon a bank or banker. The others may, or may not be legal qualities which belong to checks, after they are ascertained to be checks, but do not aid in determining their character. The citations from Kent’s Com. in the same opinion, are merely to the same effect, and the case, on this branch of it, is, after all, put upon the statement that, by the usage of banks, and the understanding of parties, such instruments are always treated as payable on the very day designated as the day of payment. We have, however, seen that by the law of this state, as expounded in the Court for the Correction of Errors, that conceding any instrument to be a check, which is drawn upon a bank, it does not, therefore, possess the quality of being payable on the day when, by its face, payment is to be made, but that, unless it be payable on demand, it has days of grace.
    “ The usage which was proved in this case, ought to have been excluded, in accordance with Woodruff v. The Merchants' Bank."

    “ The j udgment of the Superior Court and of the referee, should be reversed, and a new trial ordered, costs to abide the event.”
    On the first trial, there was no proof as to the laws of Connecticut, and the cause was tried and decided upon the assumption that it was the same as in this state.
    On the second trial, before Mr. J. Campbell and a jury, the plaintiff’s counsel admitted that the check was protested without allowing grace, and that according to the rale adopted by the Court of Appeals, in the absence of proof of a different rule in Connecticut, this was before it was due; but he claimed that by the law of Connecticut, where the check was payable, and which governs this case, a different rule prevails, and that by that law the check was not entitled to grace.
    To prove this to be the law of Connecticut, the testimony of. eminent judges and lawyers was produced, and also the adjudication of the courts of that state, and of other states, recognised there as law. Proof to the effect that a general usage is law in that state, and held to control the parties, having been given, the testimony of merchants, bankers, and men of business, as to the existence of such usage, was produced to show that by law the check was not entitled to grace. The defendant offered no proof.
    The court, on the ground that the case presented questions of law only, directed a verdict for the plaintiffs for the amount claimed by the check, and six per cent, interest; the amount of the plaintiffs’ claim to be increased, if the court should be of opinion that seven per cent, interest should be-allowed, and to be further increased, if damages on the protest of the check are allowable.

      Asa Child, on behalf of the plaintiffs,
    in moving for judgment on the verdict, made and argued the following points.
    I. The check being drawn on a bank in Connecticut, and payable there, is governed as to its construction and import, and of course as to the question of grace, by the law of that state. (See cases collected, 4 Cow. 410.)
    II. The case shows that the law of Connecticut is, that checks on time upon banks, like the one in question, are payable according to their face, without grace, and of course this check was not entitled to grace and was protested at the right time. 1. The existence of this law, as a matter of fact, was directly involved in the issue to the jury, and was conceded to be established at the trial. The plaintiffs claimed to have proved it, and requested the court to submit the question to the jury; and it was upon the distinct ground and so conceded, and there was no dispute as to the facts, including the fact of the existence of this law, and that the case presented questions of law only, and the facts claimed by the plaintiffs being admitted, that the verdict was, or, by law, could have been directed. The admissibility of the testimony establishing the facts is an open question, but of the facts including this fact, it must be taken as conceded that there is no question. (Code, 285.) 2. But aside from this concession, the case shows that the existence of the law of Connecticut, as claimed by the plaintiffs, was incontrovertibly established, (a) The case of Osborn v. Smith, decided in this court, in which, in the opinion of the late Chief Justice Jones, it was held that such checks are not entitled to grace, and that the usage as to the time of payment, furnishes the rule of law in that respect, and controls the parties, has been recognised by the Supreme Court of Errors of Connecticut, and is expressly affirmed by the judges of that court, and eminent lawyers of that state, to be the law of Connecticut, (See Kilgore v. Bulkley, 14 Conn. 362, where in a note to that ease, Osborn v. Smith is reported.) (b) It is the well settled law of Connecticut, that different descriptions of commercial ■paper are governed by different rules as to the allowance of grace, depending entirely upon the usage prevailing as to each respectively, Hie rule of law there is well settled, that a general usage as to the time of payment of any class of such paper is the law of that state, and controls the question of grace upon such paper, and that there is no other law but usage allowing grace on any paper. Several classes of paper entitled to grace by the law of New York, are there not entitled to grace, The Usage thus settled to be the law of Connecticut, is universal, that checks like the one in suit are not entitled to grace, (a) The several cases in the Supreme Court of the United States, and other courts named in the case, in which this rule as to usage has been adopted, have been expressly recognised, and are shown by the case to be the law of Connecticut. (Kilgore v. Buckley, 14 Conn. 362; Bridgeport Bank v. Dyer, 19 Conn. 136; 9 Metcalf, 503, 504.)
    III. The testimony, taken subject to exception, of reports of cases adjudicated, and cases recognised as law, by the Supreme Court of Errors of Connecticut, and of judges and lawyers, to establish the law of that state, and upon which the law was shown to be as claimed by the plaintiffs, is free from objection. The admissibility of the testimony to prove the law is really the only question; for, if the testimony was admissible, it is conceded, in effect, that the law is established. 1. The witnesses being judges and lawyers, who had knowledge of the law, were competent to prove it. And the reports of adjudications as to the law, were competent for the same purpose. II, The subject matter of the testimony was proper, as tending to show the fact of the existence of such law. (a) It was direct to the fact of the existence of the law claimed, Such is the decision and testimony, that the rule in Osborne v. Smith is the law of Connecticut. (b) It shows that usage is the law, and thus directly furnishes a rule to determine what the law is; and is equally conclusive in connexion with the other proofs, as to the fact in question, (s) The testimony as to usage was properly received, in connexion with the rule of the law, as to its effect, and furnishes a link in the chain of testimony to establish the principal fact—the existence of the law, (d) The objection, that the testimony only shows a rule of evidence to prevail in Connecticut, and does not show a rule of law as to grace, different from that prevailing here; and the objection, that usage cannot control an established rule of law, are equally untenable in fact and in law. The obj ections are answered by the whole case,
    IV. The interest should be east at seven per cent, instead of six. There should be added, also, to the amount of the verdict the three per cent, damages prescribed by statute on the protest of bills. 1. The contract was in New York, that this check should be paid at the Thompson Bank according to its face. That contract was broken, It was not a contract to pay interest, but that the bank would pay the amount at the time named; and the law of New York controls as to the rate of interest on the breach of the contract, 2, The Supreme Court of Errors of Connecticut has adopted this rule in the case of a check drawn there on a bank in New York. (Bridgeport Bank v. Dyer, 19 Conn. 136.)

      Charles T. Porter, for the defendant, contra.

      I. The question whether days of grace are to be allowed on the instrument in suit, is to be determined according to the law of the state of Connecticut. 1. The evidence as to what is the law of that state in this respect being wholly introduced by the plaintiffs, is to be taken together, and the law, is to be ascertained, not from the statement of any single witness, but from all the testimony, and the statutes and decisions referred to by the witnesses, considered as a whole. 2. The general law of the state of Connecticut in relation to the allowance of days of grace on commercial paper is, except as varied by statute in respect to promissory notes under thirty-five dollars, like our own. This is presumed to be so, and it is proved by the testimony. 3 By the common law merchant, and by the law of New York, the instrument in suit is entitled to days of grace (Chitty on Bills, 409; 3 Wheat. 152; 4 Doug.). 4. There is no evidence in the case that this general rule of law has been varied in the state of Connecticut by statute, or by judicial decisions, or by custom or usage judicially taken notice of by the courts. It appears, on the contrary, that this general law has been recognised in that state by the legislature. The language of the statute refered to is identical with that of the English statute, 3 and 4 Anne, c. 9, which was held in Brown v. Harraden, 4 T. R. 148, to have conferred days of grace upon promissory notes. (3 Yerg. 210; 2 Ld. Raymond E. 144; 9 Wheat. 581.) The cases referred to by the witnesses decide nothing respecting the general law, but only that evidence of usage is admissible to vary or control it. It appears from the evidence that, if such a usage exists in Connecticut as is claimed, the courts do not take notice of it unless it is specially proved; that it would be allowed to be proved in any case, and then, but not until then, to control the general rule of law, but its existence in that state appears never yet to have been proved in its courts. 5. The evidence taken together admits of no other conclusion than that, where there is no proof of a usage or custom to the contrary, the law of Connecticut allows days of grace upon instrumente in the form of the one in suit. 6. The rule that the law of the place of contract shall govern, is a rule of international comity, and the “ law ” which it contemplates is that fixed and determinate rule of general application in such state or country, judicially noticed by its courts and founded in its common law or statutes, or judicial decisions, and does not at all embrace local usages existing in such country, which are taken notice of by its own courts only when specially proved.
    II. The question whether evidence is admissible here to prove the existence of a local usage in the state of Connecticut, not judicially recognised by its courts, and opposed to its general law, is to be determined according to the law of our own state. 1. This is purely a question of evidence. Will the court allow evidence to be given for the purpose of contradicting a settled rule of law, or for the purpose of varying the legal construction and effect of a written instrument ? 2. Questions as to the admission of evidence relate to matters of procedure; they pertain to the remedy, and are to be determined according to the law of the country where the court sits. (2 Kent’s Com. 578 [464]; Story on Conflict of Laws, § 534 a; Yates v. Thomson, 3 Clark & Fin. 577, 580; Kilgore v. Bulkeley, 14 Conn.362; Story on Conflict of Laws.) 3. The Court of Appeals passed upon this question when this cause was before it.
    III. The interest was properly computed at six per cent. When the contract specifically gives interest, the law of the place where the contract is made is to govern the rate; but where interest is not stipulated in the contract, and the money is payable at a stipulated time, and there is default in the payment, the law of the place of payment regulates the rate, for the default arises there. (2 Kent, 575 [460]; Cooper v. Waldeglave, 2 Beavan, 282; Peck v. Mayo, 14 Vermont, 33; Scofield v. Day, 20 Johnson, 102; Kilgore v. Bulkeley, 14 Conn. 377.)
    IV. In relation to the motion for three per cent, damages under the statute, the plaintiffs are in this dilemma: if the instrument is considered a mere check, the statute does not give them any damages; if it is held to be a bill of exchange, they are not entitled to anything.
    No such claim was made on the trial.
    V. The motion for judgment should be denied, and judgment ordered for the defendant.

       See the case fully reported, 6 Sand. S. C. R. 826.

   By the Court. Duer, J.

It appears very clearly, from the opinion of Mr, Justice Jorntsoisr, with, a certified copy of which we have been furnished, that our former judgment in this case was reversed by the Court of Appeals, upon the single ground, that upon the report of the referee, the case was not distinguishable from that of Woodruff v. The Merchants’ Bank, in which the judgment of the Supreme Court was affirmed in the Court of Errors, (25 Wend. 673; 6 Hill, 172.) The learned judge expressly says,, that, in accordance with that decision, the usage which was proved before the referee ought to have been excluded,

It is certain, however, that the usage which was offered to be proved in Woodruff v. The Merchants’ Bank, being confined to the banks of this city, was strictly local; nor do we, at all doubt that it was upon this ground that the evidence was rejected.

The character of the usage excluded the presumption that the contract of the parties was made in reference to its existence, and it is familiar law, that it is only when this presumption is raised, that the usage is binding. When a usage applicable to the contract is general, the knowledge of the parties» and their intention to adopt the usage, are inferred from the mere fact of its existence, but to bind them by a local usage, their knowledge of its existence and their intention to follow it, are not inferred, but must be established by direct or circumstantial proof, (Gabay v. Lloyd, 3 Bing. 793; Palmer v. Blackburne, 1 Bing. 61; Kingston v. Knibbs, 1 Camp. 505.) In Woodruff v. The Merchants’ Bank, no such proof was given, or offered.

It seems to us a necessary conclusion, that the Court of Appeals, in referring to the decision in Woodruff v. The Merchants’ Bank as a controlling authority, must have regarded the usage which was proved before the referee as merely local, and, in reality, confined to the bank on which the check in question was drawn. It is only on this supposition, that this decision as bearing upon the question of usage, could with any propriety be referred to at all. The referee had stated in his opinion, which was before the court, that the parties were bound by the usage of the Thompson Bank, upon which the check was drawn, and it is this opinion, as we are persuaded, that the Court of Appeals, in declaring that its own judgment was conformed to that of the Supreme Court, and of the Court of Errors, in Woodruff v. The Merchants' Bank, meant to overrule. It is true that the usage proved before the referee was far more extensive than that upon which he rested in part his decision, but the opinion of Mr. Justice Johnson shows that the fact was overlooked.

The usage as now proved, upon the trial, which the Court of Appeals directed, is general, in the broadest sense of the term. It embraces all the banks of Connecticut, their dealers and customers, and its existence and prevalence are established by evidence, which has not been controverted, and seems incontrovertible. We cannot hesitate to say that the usage, as general, is conclusively proved.

The legal effect of the usage now proved has not been declared by the Court of Appeals, and we are therefore at liberty and are bound to declare it, in conformity to our own views of the existing law. And it is our deliberate and fixed opinion that the law is settled—settled by decisions far too numerous to be quoted—that the interpretation of a mercantile contract is in all cases governed and controlled by usage (4 Term R. 216), where the usage justifies the presumption that the contract was made in reference to its existence; and that this presumption always exists when the usage proved is general, definite, uniform, and notorious. In all such cases, it is the duty of judges to give that construction to the agreement of the parties, which the usage requires, however widely this construction may differ from that which, in the absence of such proof, the terms of the instrument, or the rules of law, would constrain them to adopt. Convinced that such is the law, we cannot do otherwise than hold, that in this case the evidence of usage was properly admitted; that it proves that the check in suit was not entitled to days of grace, and that, consequently, it was duly protested, and the defendant, Newell, by notice of the protest, duly charged as an endorser.

notwithstanding the confidence, as well as ingenuity, with which the able counsel for the defendant enforced his argument, we cannot believe that the Court of Appeals intended to give its sanction to the doctrine upon which he insisted, namely, that evidence of a usage can never be admitted to vary that interpretation of a written contract, which the court would otherwise adopt, or to supersede the application of a rule of law, by which its decision would otherwise be governed. Had such been the rule, it is manifest that days of grace would never have been allowed; and were the doctrine now to be admitted, it would follow that evidence of usage must hereafter be rejected in a vast majority of the cases in which it has been hitherto received. That the Court of Appeals has given its sanction to an innovation so extensive and perilous as this, is a supposition that we are bound to reject. The attention of that high tribunal may not have been fully directed to the cases to which I refer; but that in the exercise of an arbitrary discretion it meant to condemn and overrule them, it is impossible to believe. In all the cases that I shall quote (to which a large addition might readily be made), it will be found upon examination, that the effect of the evidence of usage has been to vary, and vary materially, that which would otherwise have been deemed the legal construction of the contract. In some of the cases, the usage effects the change by adding its own terms to those of the contract; in others, by giving a different meaning to the words of the contract; and in many, by superseding a rule of law, that the court would otherwise have been bound to follow, and apply (Scott v. Bourdillon, 2 Bos. & Pull. 215; Uhde v. Walters, 3 Camp, 16; Robertson v. Clarke, 1 Bing. 445; Astor v. Union Ins. Co., 7 Cow. 202; Mason v. Skurray, 1 , Mars. on Ins. 226.) (In this case Lord Mansfield said, “ Every man who contracts under a usage, does so, as if the usage were inserted in the contract in terms.”) (Brough v. Whitmore, 4th Term. 206; Da Costa v. Edmonds, 4 Camp. 142; Ross v. Thwaite, 1 Park on Ins. (Hildyard Ed.) 23; Gould v. Oliver, 2 Scott, 252; Same v. Same, 4 Bing. N. Ca. 134; Coit v. Com. Ins. Co., 7 John. 383; Allegre v. Mary. Ins. Co., Harr. & John. 408; Turney v. Etherington, 1 Burr. 348; Pelly v. Roy. Ex. As. Co., id. 341; Noble v. Kennoway, Doug. 510; Salvador v. Hopkins, 3 Burr, 1707; Gregory v. Christie, 1 Park, by Hildyard, 104; Farquharson v: Hunter, id. 105; Moxon v. Atkyis, 3 Camp. 200; Gracie v. Mar. Ins. Co., 8 Crunch. 75; Coggeshall v. Amer. Ins. Co., 3 Wend. 283; *Long v. Allen, 2 Park. 797, 4 Doug. 276; * Newman v. Cazalet, Park.; * Vallance v. Dewar, 1 Camp. 503; *Kingston v. Knibbs, 1 Camp. 500; *Bond v. Gonzales, Salk. R. 445; * Gordon v. Morley, 2 Strange 1264; * Elderly v. Fletcher, 2 Park. 646; *Ougier v. Jennings, 1 Camp. 505; * Palmer v. Blackburne, 1 Bing. 61; Planch v. Fletcher, Doug. 251; Eyre v. The Mar. Ins. Co., 5 Sergt. and Watts, 116.) (The usage proved in this case was directly opposed to the construction which the same court had previously adopted, 6 Whar. 249, and Sergeant, J., said, “We are not able to distinguish this case from the numerous cases decided in which proof of a usage had been admitted to vary and control the language used in a policy, and to give a construction different from that which it would otherwise have received.) (*Stewart v. Aberdeen, 4 Mees. and Wells, 211; *Halsey v. Brown, 3 Day, 346; *Rennie v. Bk. of Columbia, 9 Wheat. 482; * Lenox Bank v. Page, 9 Mass. 158; *Jones v. Fales, 4 Mass. 252; * Holderness v. Collinson, 7 B. and Cres. 212; *Seaman v. Gordon, 8 Carr, and P. 392; Gillan v. Simpkin, 4 Camp. 241; *Scordet v. Brodie, 3 Camp. 253; Mills v. Bank U. States, 4 Wheat. 430; *Bank of Washington v. Triplett, 1st Peters, 3; and * Chicopee Bank v. Eager, 9 Metcalf, 583; * Buffalo Commercial Bank v. Kortright, 22 Wend. 348; *Allen v. Merchants' Bank of N. York, 15 Wend. 486; S. C. in Error, 22 Wend. 218.) (In this remarkable case the judges of the Superior Court, of the Supreme Court, and the Court of Errors, were all of opinion that the construction which the law would otherwise give to a contract between a bank and one of its dealers may be set aside by proof of an opposite usage.)

No rule of law, we readily admit, is better established, or rests upon more solid foundations, than that which forbids the introduction of parole evidence, to alter or vary the terms, or legal import, of,an agreement in writing.

Nor is there any rule, where its scope and meaning are properly apprehended, judges should be more anxious to maintain and enforce. It is a mistake, however, to suppose (as the observations of Mr. Justice Thompson in Rennie v. Bank of Columbia, have clearly shown, 9 Wheat. 587) that this salutary rule is violated by the admission of the evidence of usage to control the interpretation of a mercantile contract. The evidence is introduced, not to vary, but to ascertain, the legal import of the agreement, by ascertaining the sense in which the parties meant it should be understood and carried into effect. The usage when so proved, as to justify the presumption that the contract was made in reference to its existence, becomes a part of the contract, with the same effect, as if it were inserted in terms. Had the words, without grace,” followed the order of payment in the check in suit, the legality of the protest, and, consequently, the liability of the defendant, would never have been doubted. The judgment of law upon the evidence before us, is that these important words are a part of the check, and are just as binding upon the maker, the endorser, and the bank, as if expressed upon its face. The usage inserts the words, and the law makes it our duty to give .effect to the insertion.

It is this consideration, that a general and established usage is an integral part of every contract, which its terms embrace, that explains and justifies the decisions in which the evidence has prevailed to set aside a rule of law, by which the interpretation of the contract, and the rights of the parties, would other-' wise have been governed. As “mochos et eoTimenbio vineunt legem” the right of the parties by a positive stipulation to prevent the application of a rule of law, by which their rights and liabilities under them contract would otherwise be determined, is undoubted, and as a general usage is held to afford the same, evidence of the intentions of the parties, as express words, it must necessarily have the same effect. A rule of law at variance with the usage is not applied, for the conclusive reason that the parties have agreed that it shall not be. And proof of the usage proves their agreement.

The consent of the parties is the origin of every usage. When the frequency of this consent has created a general and uniform usage, its expression is no longer deemed to be necessary, and then the law, from its just regard to the real intentions of the parties, knowing that the consent was meant to be given, supplies its expression.

It is not to be denied, that in a few cases judges have held the language, that a usage, however general, uniform, and notorious, inconsistent with an established rule of commercial law, is wholly void, and consequently that evidence of its existence, in such a case, ought never to be received. It would, perhaps, not be difficult to show that this language has originated in a misconception of the grounds, and true import of the decision of the King's Bench in Edie v. The East India Co., 2 Burr, 1216 (vide 1 Duer on Ins., p. 361-2, note 22). But it is deemed sufficient to say that the doctrine, which it asserts, is expressly contradicted and overruled by a series of decisions reaching back more than a century, continued to the present day, and occurring nearly in every branch of commercial law. In most of the cases which I have cited, marked with an asterisk, a rule of law, that must otherwise have controlled the decision, was set aside by a proof of an opposite usage, and in all, the admissibility of such evidence to prevent the application of a rule that would otherwise be followed, is plainly declared.

If prior adjudications are evidence of the law which we are bound to declare, those which I have stated press upon our judgment and conscience with an accumulated force, which we are unable to resist. Upon the authorities, therefore, as well as upon principle, we must hold that every rule of law, which the parties to a contract may set aside by an express stipulation, is liable to be superseded by an hostile usage, and that it is only when an express stipulation, as an illegal contract, would be void, that proof of a corresponding usage can be justly excluded.

The propositions I have stated are general; but it seems to us there are special reasons, amounting to a special necessity, for holding that the interpretation, which judges are bound to give to an order upon a bank, depends wholly upon the evidence of usage. As a general rule, when moneys are deposited in a bank there is no express agreement between the depositor and the bank, and in the absence of such an agreement, we think it cannot be doubted, that the contract which the law implies is, that the orders for payment, the checks of the depositor upon his funds, shall be honored and paid according to the established and known custom of the bank, in its relations with other dealers. Hence proof of the usage must be admitted, in order to show the terms of the contract, a contract which, from its nature, embraces every future payment, that,

- upon checks in the usual form, the bank may be required to make. Where, therefore, the usage proves that an allowance of grace has never been claimed by the bank upon checks in the ordinary form, even when payable upon a future day, but that invariably such checks have been paid or protested on the specified day, it will be the duty of the court to say, that the parties agreed that no grace should be allowed upon the particular check in controversy, and that this agreement is binding upon all to whom knowledge of the usage may be justly imputed.

It follows from these observations, that this case is very plainly distinguishable from that of Woodruff v. The Merchants Bank. The order, in that case, was not a check, in the ordi- • nary form, which the implied contract between the drawer and . the bank might reasonably have been construed to embrace. It was not a check payable at the counter of the bank upon which it was drawn, but, by its terms, required the payment to be made at a bank in this city. To create an obligation to make the payment so required, an acceptance by the bank, on which the check was drawn, was indispensable; and, as this necessity was apparent upon the face of the draft, it was, upon its face, not a check, but a bill of exchange, and, as such, subject to the rules by which bills of exchange, as distinguished from checks, are known to be governed. It is evident, from the opinion furnished to us, that the attention of the Court of Appeals could not have been directed to this important distinction. That a check in the usual form, even when payable on a future day, must be presented for acceptance, is a novel doctrine, which, we believe, has been hitherto unknown to all the banks in this state, and to all accustomed to deal with them. Post-dated checks, negotiated before they are due, it is settled, not only by usage but by express decisions, are not entitled to grace (Mohawk Bank v. Broderick, 10 Wend. 304; S. C. in Error, 13 Wend. 131; Salters v. Burt, 20 Wend. 205), and between these and checks payable on a day subsequent to that on which they are dated, bankers and merchants have, hitherto, been unable to see that there is any ground for a distinction. In each case the check, when issued, is payable on a future day. There is a difference in the form, none in the intent. In each case* the expectation is, that the check will not be presented for acceptance, but will be presented for payment, and will be paid on the day when, by its terms, payment is demandable.

It is, however, alleged, and we are not disposed to deny, that the Court of Appeals has decided that a check, payable on a day subsequent to its date, is an inland bill of exchange, which, as such, is entitled to the usual days of grace, and can only be protested, so as to charge an endorser, on the day when the grace expires. Such, undoubtedly, is the decision that we are bound to follow, but we cannot think that we are bound to understand it in the absolute, unqualified sense, which, as corresponding with the intentions of the court, the counsel for the defendant urged us to adopt. The Court of Appeals has not said, and, we hope, never meant to say, that, in reference to checks, or any other species of negotiable paper, the necessity for the allowance of grace may not be superseded by evidence of an opposite usage, when the usage is shown to be general, uniform, and notorious. Such is the usage now established, and we apprehend that it- is not merely our right, but our duty, to hold that it is valid and controlling.

The identical question, it now appears, arose and was decided by this court, as we now decide it, in 1837, in the case of Osborne v. Smith (vide 14 Conn. 366, note), and it is with no ordinary satisfaction that we refer to the reasoning of Chief Justice Jones, in the elaborate opinion by which he there sustained the judgment of the court, as corresponding in all respects with the views that, previous to our, knowledge of his opinion, we had been led to entertain.

So far, the case has been considered by ns, as governed by the law of this state ; and, even upon this hypothesis, we have found it necessary to hold that this plaintiff is entitled to recover—but, in reality, it is not upon the law of this state that the right of the plaintiff to the judgment which he seeks, and we are prepared to render, at all depends. The check in suit was drawn upon a bank in Connecticut, and was there payable, and, consequently, it is by the law of that state that the question, whether it was duly protested, and the defendant duly charged as an endorser, must alone be determined. Hence the counsel for the plaintiff, with commendable prudence, in order to rescue the case from the possible hazard of a wider interpretation being given to the reversal of our former judgment by the Court of Appeals, than we have found it necessary to adopt, has given evidence of the law of Connecticut, in its bearing upón the question we are requested to decide, as a foreign law ; and the admissibility and sufficiency of the proof so given, are the questions that remain to be considered.

It was admitted on the trial that there were no questions of fact necessary to be submitted to the jury. The question, therefore, for our determination is, whether the uncontradicted evidence on the part of the plaintiff was sufficient in law to entitle him to a verdict; and if this must be decided in the affirmative, the fact that the law of Connecticut is such as was alleged, must be considered as found by the jury. Similar remarks apply to the evidence in relation to the usage. If admissible at all, it was conclusive, and the usage is established.

Witnesses more competent and trustworthy than those who were examined to prove the law of Connecticut, could not possibly have been selected. Their thorough knowledge of the subject in relation to which they are called to testify; the high judicial station which several of them occupy; the professional eminence and long experience of all, clothe their words with a peculiar and commanding authority. There is no uncertainty or variance in their testimony, and they are fully sustained in every position, which they state, by the decisions to which they refer. These witnesses have proved that, by the law of Connecticut, the question whether any particular description of negotiable paper is or is not entitled to days of grace, depends wholly upon usage, and that if a general usage exists, denying an allowance of grace to checks payable on a future day, that usage constitutes the law, which' their courts are bound to follow. As the existence of this usage is established by the other witnesses who were examined, the proof seems to be complete, that by the law of Connecticut payment of the check in suit was properly demanded on the day on which it was protested, and, consequently, that the protest was regular, and the defendant duly charged as an endorser.

What, then, are the grounds of the call that has been made upon us to reject the entire body of the evidence given on the trial ? Why is it that we are required to say, that, imposing as it seems, it is wholly insufficient in law to maintain the action, and warrant a recovery %

It is possible that we have not fully comprehended the subtle reasoning of the ingenious counsel for the defendant; but I shall proceed to state, as plainly as I can, the several objections upon which we all understood him to rely.

It has not been shown, it was said, that the validity of the particular usage in relation to checks on time, has been settled in Connecticut by any express adjudication ; and, in defect of this proof, it was contended that we have no right to say that the usage, although proved to exist, is established as law.

Such is not our view of our rights and our duty. In our judgment, the evidence which the objection requires, was not at all necessary to be given; nor does its absence justify a reasonable doubt as to the sufficiency of the proof that has been given. That the courts in Connecticut, upon such proof of the usage as is now before us, would be bound to declare that the usage is the law of the state, is conclusively proved; and hence, the fact that no such decision, has hitherto been made, is regarded by us, as wholly immaterial. It is probable, that the exact question has not been brought before the courts, precisely for the reason that the particular usage in relation to checks is so general, uniform, and notorious, that no one has hitherto ventured to dispute its validity; nor is it probable, for the same reason, that the question will ever be litigated. Had this suit been brought in Connecticut, the evidence before us justifies the belief that no respectable counsel would have been found to advise its defence.

But, in truth, although the exact question has not been formally, it has been virtually decided by the Supreme Court of Connecticut. It was so decided by the emphatic approval which was given by that court (Kilgore v. Bulkley, 14 Conn. R., p. 362) to the opinion of Ch. J. Jones, in Osborne v. Smith. It was decided by making the judgment of this court upon the identical question, in a measure the basis of its own. The Supreme Court of Connecticut has judicially declared, that if the usage in that state is similar to that which was proved, in Osborne v. Smith, to be the usage of the banks in this city, the rule, which the usage prescribes, the law of the state ratifies and adopts. The usagé, therefore, now established, establishes the law.

It has, however, been contended, and this is the last objection we shall notice, that the usage in question has not been established by any evidence that could be legally admitted; and that without this proof the evidence in relation to the law of Connecticut is deprived of its necessary support, and, as merely hypothetical, ought to be rejected. The admission of evidence, it is argued, is, in all cases, regulated entirely by the law of the tribunal in which it is offered; and, as the Court of Appeals has decided that the usage, as proved before the referee, ought to have been excluded, it is our plain duty, bound by that decision, tó exclude the evidence in relation to that usage that has now been given.

To this reasoning there is a brief, and, we think, a satisfactory reply.

We have already shown that the Court of Appeals has not decided that proof of a general usage ought to be excluded, but admitting that such is the import of its decision, it must be borne in mind, that, in the case before that court, there was no question as to the law of Connecticut, which was then assumed to be the same as our own, and that the sole ground of its decision, was, that a usage, contradicting a settled rule of law, is wholly void, and its existence, therefore, not a subject of proof. It is manifest, however, that this reason has no application, where the controversy turns wholly upon a foreign law, which holds that a general and established usage, however inconsistent with the rules of the common law, has a paramount and controlling authority, and, when proved, constitutes itself the law that judges are bound to follow. In such a case, to prove the usage is to prove' the law, and to exclude the evidence is in effect to determine that in our courts a foreign law, depending upon usage, cannot be proved at all." It would be a mockery to say that the law of Connecticut governs this case, and yet exclude the appropriate and necessary proof of its existence, and in this legal solecism we must refuse to be involved.

Finally, it cannot be doubted that, we are bound to decide this cause as it has been clearly proved it would now be decided in. Connecticut. Three of the present judges of its highest court have been examined as witnesses, and the necessary result of their testimony is, that were this case now before the tribunal to which they belong, its judgment would be certainly and promptly rendered in favor of the plaintiff.

Such, therefore, must be our judgment.

Our opinion upon the other questions that were discussed upon the argument, is in favor of the defendant. We think that the claim for damages cannot be sustained, and that the rate of interest is governed by the law of Connecticut.

The verdict was, therefore, rendered for the proper amount, and there must be judgment upon it, as it stands.

Bosworth, J.

When this cause was before me as referee, it was satisfactorily proved, that it was not only the uniform usage of the Thompson Bank, but of all the banks in the state of Connecticut, to pay checks of the form of the one in question, on the day designated on its face for payment; or, if there were no funds to meet it, to protest it on that day for non-payment. I intended to report that I so found the facts, and not merely to find and report that such was the usage of the Thompson Bank. I have not seen the report since it was made, and am not aware whether it is open to the construction that it reports the usage of one bank only. The proof made was of a usage co-extensive with the state of Connecticut. In admitting proof of it, and in passing upon it when satisfactorily established, I disposed of the case, on the assumption, that a general, uniform, and notorious usage, in respect to an instrument like this, one in daily use, and daily acted upon, and one by which daily transactions involving large pecuniary amounts were adjusted, might properly be proved; and when proved the judgment of law was, that the instrument was made, delivered, and accepted, with reference to such usage, and that the rights and liabilities of the parties were affected by it, precisely as they would have been by the use of words in the instrument itself, stipulating in terms corresponding with the legal effect of the usage. If the special report made by the referee is correctly stated in the report of the case when first before this court (5 Sand. S. C. R. 327), it found that the usage allowed and decided to have been proved^ was not merely a usage of the Thompson Bank, but a usage of every bank in the state, and therefore a usage applicable to every instrument of like form drawn upon a Connecticut bank, if proof of the usage was admissible.

It did not seem possible to me, that, contrary to this uniform usage, any one could suppose that such a paper was, in the intention or contemplation of any party to it, to be presented for acceptance, and if not accepted, to be protested for non-acceptance.

A drawee of a bill is not liable to pay unless he accepts it. But is it clear, that when a bank depositor draws his check on the bank with which he keeps an account, and against funds actually on deposit, a bond fide holder of the check could not compel the bank to pay? In the absence of any express agreement between the bank and its customer, to pay the checks of the latter, drawn on funds deposited, on the presentment of the check, or' on the day on which payment was directed by the check to be made, or to pay them at all, would the court exclude proof of the uniform and notorious usage of every bank in the state, to pay to the holder on presentment of the check on the day named for payment, and deny a recovery, notwithstanding proof of such usage, and that the drawer of such check had funds in bank to meet it ?

It also seemed to me, that this case was clearly distinguishable from that of Woodruff v. The Merchants’ Bank, 25 Wend. 673. In the latter case, the bill was drawn in Michigan, on a bank in the same state, and was payable sixty days after its date -in the city of New York. It had been accepted. In the absence of any facts, except the drawing of the bill and delivery of it to the payee, the drawee would be under no obligation, without having accepted it, to pay the amount in New York, or at all. It was not shown to have been drawn by a depositor on a bank in which he kept his account, nor was it payable at the counter of the bank on which it was drawn. There was no proof of an unvarying usage of the bank on which it was drawn, and of every other bank in the State of Michigan, to pay bills in that form on-the precise day named, without grace.

And the only usage proved, was one prevailing in the city of New York. • This local usage, if proved, the court held to be-in conflict with the settled and acknowledged law of the state. No usage throughout the state was proved or offered to he proved; nor was any usage of the state in which the parties to the bill resided proved, or attempted to be. No usage was proved of which the parties to the bill could be presumed to have notice, and with reference to which they could be presumed to have contracted.

In the case before us, a general usage of every bank in Connecticut, including that on which it was drawn; a usage of the state in which the drawee resided, and in which payment was to be made, was proved. The instrument in question was drawn by a bank depositor on his depositary, and was to be paid at the counter of the latter. I therefore thought the cases clearly distinguishable.

But the Court of Appeals I understand to have decided otherwise. If such is its decision, it follows, that they must be deemed to be, and treated as, not distinguishable; that proof of the usage was improperly admitted; that by the settled law of this state, the instrument in question is a bill of exchange, and entitled to grace, although always dealt with and acted upon as not being entitled to it; and that the same consequences will result from laches in presenting it for acceptance, and the same rights and liabilities result from a protest of it for non-acceptance, as in the case of an undoubted bill of exchange.

This result must follow in the absence of proof that the law of Connecticut, where the contract was to be executed, is different from that of this state. On the former trial it was not shown what the law of that state, on this subject, is.

It is now clearly proved, that a uniform and notorious usage of the state, in reference to such paper, is the law of the state on that subject.

It is clearly proved, that the usage to present and pay such paper, on the day specified, if the drawer has funds to meet it, or to protest it for non-payment, if he has no funds, is general throughout that state. That every bank in the state invariably acts upon it. Not an exceptional case is stated. The usage has existed long enough to give it the force of law, so far as the period of its duration affects the question of its validity. It is. proved by testimony entirely satisfactory, so far as the number of witnesses, their means of knowledge, and their capacity to speak authoritatively, are concerned. I concur in the judgment now given, on the grounds, that the law of the state of Connecticut is the law of the contract, and that by the law of that state the instrument was not entitled to days of grace, but was payable on the day named on its face, and was therefore properly protested.

Judgment for plaintiff, with costs.

CASES OF PEACTICE AND DECISIONS IN SPECIAL PROCEEDINGS AT THU GENERAL AND SPECIAL TERMS AND AT CHAMBERS.

       The cases of. practice reported were decided with the sanction of two at least, and nearly all, with that of three or more, of the justices of the court.


source: Caselaw Access Project

license: Public Domain

text:
    Milvehal v. Milward.
    (General Term,
    April, 1853.)
    To prevent a failure of justice, the court will order a bill of exceptions, when s case containing the exceptions has been properly settled, to be signed by the clerk, in the name of a deceased judge, who had tried the cause.
   Such an order was made by the court in the above cause, with the assent of all the judges. Upon the bill of exceptions so signed, the cause has since been heard in the Court of Appeals, and the judgment of this court affirmed.


text:
    Murray v. General Mutual Insurance Company.
    When a plaintiff transfers his interest after the commencement of the suit, it rests entirely in the discretion of the court, whether the assignee shall be substituted as plaintiff, under § 121 of the Code.

      (April 28, 1853.)
    Ho such order of substitution will be made, unless special circumstances are shown to satisfy the court of its propriety or necessity; and, in all cases, it will be made a condition, that the original plaintiff the assignor, shall not be examined as a witness on behalf of the assignee.
   These points were so ruled by Mr. Justice Dues, at special term, after consultation with all the judges, and with their concurrence.


text:
    Horace H. Day v. United States’ Car Spring Company.
    (April, 1853.)
    The Superior Court has no jurisdiction to appoint a receiver of the property or effects of a foreign corporation, for the purpose of winding up its affairs.
    Motion for an injunction and a receiver.
   It appeared by the complaint, that the defendants were a corporation created by the laws of Connecticut, and the relief prayed for was a perpetual injunction, restraining the company and its officers from making any disposition of its property, and the appointment of a receiver, with power, under the direction of the court, to collect its debts, including unpaid subscriptions, to pay all demands against the company, and distribute the surplus, if any, pro raid, amongst its shareholders. The judges consulted by Mr. Justice Bosworth, all agreed with him in the opinion, that the court would exceed its jurisdiction in attempting to grant the relief demanded, and, consequently, that it was his duty to deny the motion. It was denied accordingly.


author: Emmet, J.

text:
    Thurman v. Stevens and another.
    (April Special Term, 1853.)
    When the action is founded upon an agreement, which would be void under the Statute of Frauds, unless in writing, and signed by the party to be charged, these facts, as constituting in part the cause of action, must be averred in the complaint.
    Dehubbeb to complaint. The pleadings are fully stated in the opinion of the court.
   Emmet, J.

This is an action by the assignee of a judgment against the sureties of the judgment debtor, on an appeal to the general term of this court. The facts are as follows.

John Snyder recovered a judgment against James R. Del Vecchio for $503.95. Del Vecchio appealed to the general term, and, on such appeal, Dean & Stevens, the defendants in this case, executed an undertaking, as required by the Code (§§ 334, 335, 345).

Snyder’s judgment against Del Vecchio was affirmed at the general term, and an additional judgment for $61.28, costs on the appeal, was entered. Del Vecchio paid Snyder $210.22, on account, and Snyder then assigned the judgments to Thurman, the plaintiff in this ease.

No execution was issued on the judgments ; but Thurman commenced this action against the sureties on the undertaking, to recover $363.83, the balance due by Del Vecchio, on both judgments, for principal and interest.

The complaint alleges that Stevens and Dean, in consideration of the appeal, and that Del Vecchio had a stay of proceedings upon the judgment, undertook that Del Vecchio would pay all costs and damages, &e. (in the language of the undertaking), which should be awarded against him, on the appeal. It does not aver either that the undertaking was in writing and subscribed by the defendants, or that it was made or entered into with the plaintiff, or that Snyder had any right to assign, or that he did assign it to the plaintiff.

The defendant, Stevens, demurred to the complaint on the following grounds.

1. That the undertaking set forth in it was a collateral undertaking, to answer for the debt or default of another, and was void by the Statute of Frauds (2 R. S. 135),

2. That the complaint shows no right of action in the plaintiff against the defendant.

3. That the complaint does not contain sufficient facts to constitute a cause of action.

Previous to the Code, the first ground of demurrer would clearly not have been tenable. The rule was well settled in courts of law, that the Statute of Frauds did not affect the form of pleading. If a declaration averred such an agreement, it was not necessary to allege that it was in writing, as that fact would be presumed, until the contrary appeared ; and a demurrer was proper only when it distinctly appeared on the face of the declaration, that the agreement was not in writing (1 Cowen, 45 ; 4 Johns. 237; 6 Hill, 53 ; 4 B. & A, 274), and the same rule prevailed in Courts of Equity (2 Paige, 177),

The Code, however, has prescribed a new system of pleading, the fundamental rule of which, as to the complaint, is, that it shall contain a plain and concise statement of the facts constituting the cause of action. In order to constitute a cause of action against a party for the debt or default of another, the law makes it an essential fact, that he should' have undertaken to do so by writing, subscribed by himself.

The making or existence of such a writing, so subscribed, is, therefore, one of the facts constituting the cause of action, and it would seem necessarily to follow, that it must be stated in the complaint.

The Code means, undoubtedly, that the complaint shall contain a perfect and clear statement of all the facts essential to the right of action ; and it can hardly be said that a statement, omitting a fact so important as this, to the right of action on a collateral promise or undertaking to pay the debt of another, and which, under the old system of pleading, required a presumption of law to sustain it, can be such a perfect and clear statement.

The fact undoubtedly is, that the undertaking in this case was in writing, and signed by the defendants ; and if that fact had been stated in the complaint, there would have been no pretext for this ground of demurrer. The demurrer assumes that it was not in writing, contrary to the fact, because the fact was not averred, and an equivocal view of the undertaking, which is the basis of the action, is thus presented. This would have been obviated by such a statement of the facts as the Code requires. It is no answer to this to say, that, as it was on an appeal, it must have been in writing, and subscribed by the sureties, because the Code so requires all undertakings to he in such cases. The technical term “ undertaking,” as used in the Code, is not to be found in the complaint at all, nor is it even averred that the defendants undertook, as required or directed by law in such cases. There is nothing in the complaint which absolutely excludes the supposition, that the defendants may have undertaken, as therein alleged, by a mere verbal promise or agreement.

For these reasons, I think the demurrer upon the first ground is well taken, and that judgment must be for the defendants. But, as this ground .of demurrer is upheld upon a view of the rule of pleading under the Code, at variance with an old settled principle, which the plaintiff might well consider himself bound to follow, he must be allowed to amend his complaint, without costs.

This decision renders it unnecessary to discuss the other two grounds of demurrer, I confine myself therefore to saying, that, in my view, neither of them can he sustained, except for the same reason which makes the first ground of demurrer sufficient,

Duer, J., concurred.


author: Bosworth, J.

text:
    Ogden v. Bodle & Taggard.
    In an action on promissory notes, given for work and labor done, and materials furnished by the plaintiff, in building, altering, and repairing certain buildings belonging to the defendant, it is a good defence, that the plaintiff. before he commenced the action, had commenced proceedings in the Common Pleas, to enforce his lien upon the buildings for the same debt,
    (At Special Term,
    April 30th, 1853.)
    Such a proceeding is an action, substantially, for the same cause, with the additional remedy that, if the debt is established, the lien will be enforced,
   Bosworth, J.

The plaintiff moves to strike out the answer of Bodle as being a sham answer; and for such relief as to the court may seem proper.

The complaint is on four promissory notes made by Bodle in the defendants’ partnership name of Taggard & Bodle, dated August 7,1852; one at 3 months, for $571.49, one at 4 months, for $577.79, one at 5 months, for $584.39, and one at 6-months, for $584.39.

Bodle’s answer states, that the notes were given in settlement of, and solely for work and labor done, and materials furnished by plaintiff in building, altering, and repairing the buildings 2, 4, 6, and 8, Warren street, known as the Mercantile Hotel.

That after the notes were given, and before this action was commenced, the plaintiff commenced an action in the New York Common Pleas, which is still pending and undetermined, and which was brought to enforce payment from this defendant for said work, labor, and materials, furnished by the plaintiff; that the action in the Common Pleas and this action are brought for the same cause.

The affidavit of plaintiff’s attorney states, that the alleged action in the common pleas is a proceeding under the lien law of July 11,1851, to enforce a lien on the interest of Bodle only, in the Mercantile Hotel, founded upon a notice of such lien filed in the county clerk’s office July 26,1852, and for no other purpose; that no other purpose is expressed in said proceedings ; that Bodle has appeared in said proceedings and put in an answer denying that he is indebted for said work, labor, and materiels. It avers, on information and belief, that Bodle is insolvent.

Bodle’s opposing affidavit states, that at the time the notice of the lien was filed, his interest in the Mercantile Hotel exceeded $9000; denies that he is insolvent; and avers that his answer in the Common Pleas did not deny he was indebted to the plaintiffs, but put in issue the fact of being indebted to the amount claimed.

The plaintiff insists, that the proceeding in the Common Pleas is not an action for the same cause as that commenced in this court; that the latter is brought to recover a judgment in persona/m, and the former to enforce a lien, or security, for the payment of the consideration of the notes in question.

The prayer of the complaint in the Common Pleas is for a “judgment that said liens maybe established and enforced against said buildings for said sum of $2,200, the interest thereon, and for costs.”

The 8th section of the lien law provides, that “ on the appearance of both parties, pursuant to the act, issue shall be joined, &c., and the same may be noticed for trial and put on the calendar by either party, and shall be governed, tried, and the judgment thereon enforced, in all respects, in the same manner as upon issues joined and judgments rendered in all other civil actions for the recovery of moneys in said court.”

The question is, why, in the case of a proceeding directly between the original contractor and owner, and between them only, a judgment may not, and should not be entered, if the proof authorizes it, adjudging the whole amount claimed to be due; that it is a lien on the defendant’s interest in the property ; that such interest be sold to satisfy the debt and costs, and if a deficiency arise, that execution issue to collect such deficiency of the owner’s personal and real property.

If such a judgment may be entered, then are not both suits for the same cause of action ? In the action to enforce the lien, all the relief can be given which can be had in the other, and besides that, the lien can be enforced.

They are as essentially for the same cause, as an action on a bond seemed by a mortgage, and an action to foreclose such mortgage, are for the same cause.

The cause of action in each case is the same, viz. the alleged-debt. That must be established in the proceedings to enforce the lien, and by the same evidence that would be required to maintain an action for the work, labor, and materials.

On establishing the debt, and the facts averred to create the lien, the debt will be adjudged to be due, the lien established, and judgment given that the lien be enforced and the debt paid. The judgment will be as efficient to reach and appropriate any property of the debtor, to pay any part of the debt which the subject of the lien may be insufficient to satisfy, as a judgment on the notes would be to reach such property, to satisfy its amount.

I infer that Taggard was not served with the summons in the action in this court.

The complaint alleges, that defendants were partners, and that they, by the said Bodle, made the notes described in it.

The lien proceedings imply, that they were given for the individual debt of Bodle, and therefore Taggard would not be liable, unless he assented to the making and delivery of the notes. Such assent is not averred.

If Taggard is not liable, both suits are in substance between the plaintiff and Bodle only.

Both are brought to enforce payment of the same debt. In the one in the Common Pleas, the plaintiff can obtain all the relief that can be given by this court in the action in which this motion is made, and in addition to that can have the alleged lien enforced, if established.

The effect of allowing both suits to proceed, is to subject the defendant to two bills of costs, if unsuccessful. (9 Paige, 294.)

It seems to me that both actions are, substantially, for the same cause, and that no remedy can be obtained in this, that may not be had in the one first brought and now pending in the Common Pleas.

The plaintiff’s motion is therefore denied.

Approved on consultation.


author: Campbell, J.

text:
    Tallmadge and others v. The East River Bank.
    The owners of the lots on the north side of St. Mark’s Place, in the city of New York, agreed by parole that the houses to he erected thereon should he set back 8 feet from the .ine of the street, so as to have a court-yard of that depth and of the width of the lot in front óf each hotlse. The agreement was carried into effect by the erection of a rOw of dwelling-houses on a line with each other and having each a court-yard in front.

      (Special Term.
    Before Campbell, J.)
    May 21, 1853.

      Held, that the agreement thus executed became binding on the parties and their grantees, so as to render it the duty of a Court of Equity to restrain its violation»

      Meld, that each house thus erected became a servient tenement with respect to the others, to the extent of the space in front, and to that extent each acquired an easemeht, that unless by the consent of all the owners could not be disturbed.

      Meld, that an injunction restraining the defendants, who by mesne conveyances had become the owners of one of the lots, from building on the space so agreed to be left open, was properly granted.
    This was a motion, on the part of the defendants, to dissolve an injunction restraining them from proceeding to build on a certain part of a lot belonging to them, on the corner of the 3rd Avenue and St. Mark’s Place. The facts are fully stated in the opinion of the judge.

      H. Maxwell, for plaintiffs.

      S. Jones, for defendants.
   Campbell, J.

An injunction order Was granted on the com» plaint of the plaintiffs, alleging that the East River Bank had purchased certain premises on the north-east corner of 3d Avenue and St. Mark’s Place, in this city, and were about tearing down the present building for the purpose of erecting a banking house, which should extend to the northerly line of Eighth street, or St. Mark’s Place, as originally laid out on the commissioners’ map, and that such building when erected would project or extend eight feet beyond the houses of the plaintiffs and others, owners of property on Eighth street, or St. Mark’s Place, between the 3d and 3d Avenues; and they further charge, that more than twenty years ago, Thomas E. Davis,then being the owner of the property on both sides of St. Mark’s Place, and being desirous of selling the same, or portions, and erecting, or causing to be erected, houses thereon, and to sell the same, agreed and stipulated that the north line of said street should virtually be extended eight feet farther north; that all the houses should be built upon such new line, reserving the intervening space between said line and the north line of the street, as originally laid out, as a court-yard; and further, in pursuance of said agreement, and in conformity thereto, all the houses were placed back eight feet, including the one in question, and that this was done nearly or quite twenty years ago. The complaint further states, that the houses on this street are large and expensive, and the value of property on the street and its locality much increased by reason of these open court-yards, and this virtual increase in the width of the street; and they insist, that the space of eight feet was set apart and dedicated to the use of the public, and cannot be reclaimed. The defendants in their affidavits say that they do not believe any such agreement or stipulation was made by Mr. Davis, and they urge as a reason, that before the time of the alleged making of the agreement, he conveyed the property in question to one Mr. Henriques, and that by such conveyance the south boundary of the premises was the northerly line of Eighth street, as laid down, and not the new line sought to be established, eight feet to the north of such original north line of the street. .They further show, that the premises, after the erection of the present buildings thereon, or about that time, were mortgaged by the then owner to the Jackson Marine Insurance Company, and that in and by such mortgage the southerly line of the property was described as the north line of the street, as laid down ; and further, that on a foreclosure of such mortgage the master’s deed conveyed to the said Insurance Company the premises as described in the mortgage; that the Insurance Company conveyed to the grantor of the defendants by the same boundary, and that such grantor by the same boundary conveyed to the defendants; and that throughout, in all the chain of conveyances, for more than twenty years the uniform description of the premises bounded them on the southerly side by the northerly line of the street. The defendants fix 1834 as the period when the mortgage was executed to the Insurance Company, and urn der which the company afterwards obtained title; and the defendants state, that at this time, 1834, no buildings had been erected on the premises. In 1837 the Insurance Company obtained by a sale Under a foreclosure the fee of the property, and in 1844 they sold the premises to Caleb 0, Halsted, the defendant’s grantor. In the conveyance to Halsted there is the following clause : “ The premises hereby conveyed, including a certain court-yard of about 8 feet in width, laid off along the southerly side thereof.” The complaint charges, that the deed from Mr. Halsted to the defendants contained a clause making the grant to the said defendants subject to all existing restrictions and covenants in relation to keeping the said space or court-yard perpetually open as such court-yard or street.”

It is denied by the defendants that there is such a clause. The deed was used on the argument, and the clause in question, as contained in the deed, I do not find in the papers before me, but it Was, as I understood, in substance, that the grant was subject to such covenants or restrictions, if any existed.

It does not seem to me to be very material, whether the claim was as contended for by the plaintiffs, or as set forth in the deed. The important question is, whether there was an original agreement, and if so, what was it ? As a matter of fact, I entertain no doubt on the subject. So far as the proof is before me, it is not full and complete ; and, yet the circumstances actually existing are of a marked, and, it seems to me, an unanswerable character; A new street was improved ; elegant and expensive houses were erected, extending from avenue to avenue (except the premises in question), all set back eight feet, and all using that space for a court-yard. Mr. Davis was the owner and builder of these houses , he was the former owner of the premises in question. The premises in question, when improved, were made to conform to the plan of all the other houses. When the first deed thereafter is given, that is, after the erection of the buildings, mention is made of the court-yard, as being a part of the premises included in the conveyance. The mortgage to the Insurance Company, and which was probably given before the erection of the building, contained no reference to a court-yard, as then none existed. The master’s deed, of course, followed the description in the mortgage. When, however, the Insurance Company convey, mention is made of this court-yard. Special notice is made that the boundaries include this court-yard. It is, I apprehend, the same mode which would be adopted in any other conveyance of premises in St. Mark’s Place. The property would be conveyed as located on the original north line of the street, and the conveyance would include the court-yard in front. The owner may also own this court-yard in fee, subject, however, to one certain servitude—subject to the right of hia neighbor to insist that he shall use it for no other purpose.

recurring again to the complaint, and to the affidavit on which the motion is made to dissolve the injunction,—the complaint alleges expressly, that there was no agreement that all the buildings should be set back eight feet. The affidavit says that the defendants do not believe that such agreement waa made. My own opinion is, from the facts and circumstances set forth in the complaint and affidavits, that such an agreement was made, and that it is binding on the defendants. It may have been by parol, but it was executed—carried into effect by the erection of the buildings eight feet hack on the whole block. It is not the case of Wolf v. Frost (4 Sand. Ch. R. 72), when such an agreement, unexecuted, was sought to be enforced. It is one thing to enforce such an agreement when made by parol; it is another, to attempt to violate it after it has been executed. Intent may always enter largely into questions of dedication, and where the intent is manifested by an agreement executed, the time becomes, comparatively, immaterial. In respect to all these houses and lots on St. Mark’s Place, it seems to me that they must be considered each with respect to the others as a servient tenement, to the extent of the space in front, denominated a court-yard.. It is a species of easement, which each owner enjoys in the property of his neighbor.

The motion to dissolve the injunction must be denied, with ten dollars costs, and an order may he entered, continuing the injunction until the hearing of the cause.

Affirmed, on appeal, at general term,


text:
    C. C. Leigh & others v. J. Westervelt, Mayor, &c., & others.
    (Special Term,
    May 28, 1853.)
    No court of justice can restrain commissioners of excise from granting licensee, in the exercise of the discretion given to theta by the statute, when no excess of authority, or actual corruption, is averred in the complaint.

      Motion for an injunction, before Mr. Justice Bosworth. All the material facts are set forth in his opinion.
   Bosworth, J.

This action is brought to obtain an injunction, restraining the defendants—being a board of excise for the ninth ward—from in any way or manner “ authorizing any person or persons whomsoever, to sell strong or spirituous liquors to be drunk on their premises, or to retail strong and spirituous liquors, and especially restraining and enjoining them from granting to any person or persons whomsoever, any license to keep an inn or tavern, public ordinary, or victual-ling-house, and to retail therein strong or spirituous liquors, until the further order of the court.”

On complaint, duly verified, the plaintiffs now move for such an injunction.

The complaint states, that the plaintiffs are citizens of the state, and residents and taxpayers in the ninth ward of the city, and are four of the corporators of the city. That they own real or personal estate, or both, in the city, liable to taxation, and for several years have paid taxes théreon. It states the recent heavy increase in the aggregate annual amount of the city taxes; that crime and pauperism have alarmingly increased in that ward, and that, as they believe, these evils have been caused, to a great extent, by the licensing of the sale of intoxicating liquors in that ward.

That as they are informed and believe, the defendants have procured printed licenses, which they are about to grant to sundry persons in that ward, authorizing them to keep an inn or tavern, public ordinary, or victualling-house, and also to retail and sell spirituous liquors in less or greater quantities than five gallons; and that such licenses are in direct violation of law; that they are about to grant such licenses to unfit and improper persons, and who are not of good moral character, and who, while holding such licenses, repeatedly violated their provisions during the past year.

That under color and authority of the licenses heretofore granted, the sale and use of intoxicating drinks has become so excessive, that, as an immediate consequence, $1,000,000 has been annually added to the city taxes ; twenty thousand men and women have been annually sent to the city prisons; many murders and homicides, and many more violent deaths have been produced.

That the granting of such licenses in the ninth ward, to the said unfit, improper, and immoral persons, will diminish the security to the life and property of the plaintiffs, and the other inhabitants of said ward and city, and will increase the burden of taxation of the said plaintiffs, and the other tax-payers of said ward and said city.

And that the granting of any license to any person to sell strong and spirituous liquors within that ward or the city, will give color and formality of law to a nuisance, and an evil corrupting and dangerous to individuals and to society ; diminishing the value of property and the security of life, and directly producing the evils against which the said acts of the legislature were intended to guard.

The first question to be considered is,—has this or any other court the power to grant such an injunction as is sought, even if the facts stated in the complaint are true, and the consequences apprehended are likely to result from them ? If the court has no jurisdiction to restrain the defendants from.acting as commissioners of excise, and granting licenses, the motion must necessarily be denied, No case has been cited which affirms the existence of such a jurisdiction.

The statute gives “ power and authority” to the defendants to grant licenses, to such persons as they shall deem fit and proper, to retail strong or spirituous liquors, or to keep an inn or tavern, public ordinary, or victualling-house, within the said city.” (Laws of April 10,1824, chap. 26, § 1.)

“No such license shall be granted to any person who is not, in the opinion of the said commissioners, of good moral character,” (§ 8, id.)

The statute says, the defendants may grant licenses to such persons as they “deem fit and proper,” and “of good moral character,” The legislature is constitutionally competent to enact such a law. What an express statute expressly permits designated officers to do, the court cannot restrain them, by injunction, from doing.

The persons to be licensed are to be determined by the defendants, in the exercise of their discretion,-and that discretion cannot be made subservient, or subordinate to, the discretion of the courts. The court cannot restrain them from granting any licenses,- for the simple reason that while courts, acting within the scope of these powers, enforce the law, they do so by acting in obedience to it, and not by assuming an authority paramount to it. The statute declares, that they may grant licenses, and that authority the courts cannot abrogate or restrain.

The court cannot interfere under the idea that the license system is a nuisance; whatever is permitted by a statute which the legislature is constitutionally competent to enact, is not, in judgment of law, a nuisance.

With the wisdom or expediency of a law, the courts have nothing to do. They are bound to administer the laws as they find them ; and would be derelict in duty if they failed to do so in any case, on the ground that they deemed them unwise and inexpedient; nor are they at liberty to arrest the action of public officers, charged by statute with a public trust, and authorized to act according to then* judgment and discretion, because the courts may think the statute conferring the authority pernicious in its consequences, and one that ought to be modified or repealed.

If the acts under which licenses are granted, are violated, the offenders subject themselves to a penalty, also to fine and imprisonment (§ 2, id.).

The injurious consequences alleged to result from the system and licenses granted, so far as the complaint shows, produce no pecuniary injury to the plaintiffs, differing in its character from that inflicted on every resident and tax-payer of the ninth ward. It is, of itself, a reason why the court could not interfere at the suit of an individual, to restrain a nuisance, when there is no ground for interfering, except that which is common to all the inhabitants of the ward.

While the statute continues in force, the only remedy any citizen has is to prosecute, when such cases occur, for a violation of duty in granting licenses, or for violations of the provisions of the act, by those to whom licenses may be granted.

I consider it entirely clear, that the court has no jurisdiction in the matter. The motion must therefore be denied, with ten dollars costs.

Culver & Parker, for plaintiffs,

R. J. Dillon, for defendants.

Approved, on consultation.


author: By the Court.

text:
    Smith v. Riggs.
    (General Term.
    Before Oakley, Ch. J,, Duer, Campbell, and Bosworth, J.J.) .J.)
    May, 1853.
    The question of title to lands is, in all cases, a question of ownership.
    The question does not arise in an action to recover damages for the breach of aa agreement to convey lands, when the only issue made by the pleadings is, whether an inchoate right of dower in the wife of the defendant was a subsisting encumbrance.
    In such an action, if the plaintiff recovers only nominal damages, the defendant is entitled to full costs.
    This was an action to recover damages for the breach of a covenant, by which the defendant bound himself to convey to the plaintiff, on or before a certain day, a house and lot in the city of Eew York, “by a good and sufficient deed, free from encumbrances.” The cause was tried before Hr. Justice Duer, at special term, by the consent of the parties, without a jury.
    It was proved that the defendant had tendered to the plaintiff, on the day mentioned in the agreement, a conveyance in fee of the house and lot in question, and that the plaintiff had refused to accept the deed, on the ground, that it was not signed and acknowledged by the defendant’s wife, so as to bar her dower. The court held, that he was justified in this refusal, and that the defendant, by not having procured and tendered a release of dower, had broken his covenant; but as it appeared that the sum, which the plaintiff had agreed to pay for the house and lot exceeded its market value, a judgment was rendered in his favor for only six cents damages. The propriety of the decision was not disputed, but the question which arose upon this appeal, was to which of the parties costs should be allowed. The judge, at special term, had affirmed the decision of the clerk, allowing Ml costs to the defendants, and the plaintiff appealed from the order,

      G. Clarke, for the plaintiff,
    insisted on the following points,
    I. The complaint alleges, that defendant was seized of the house and lot; that he contracted to sell to the plaintiff, and to give him a title free of encumbrance; and that the title offered was not a good and valid title, free of encumbrance, but on the contrary was defective. These positions were controverted by the defendant, and thus an issue was raised involving a question of title, and one which a justice of the peace could not try. Therefore, under section 804 of the Code, the plaintiff is entitled to costs.
    II. If the plaintiff is not absolutely entitled to costs as of course under section 804, then it is a case coming within section 306, where the giving of costs is discretionary with the court, 1. It was an equity cause of action, and the plaintiff could have proceeded in equity to enforce performance of the contract (see note to section 306 of the Code); and had he done so, he would of course have been entitled to costs, as the court has decided the question of law in his favor. 2. If then he would have been absolutely entitled to costs if he had pursued that course, will not the court in the exercise of its discretion give the plaintiff costs when he has pursued the other course allowed by the law, on the same state of facts that would have given him costs in an equity suit ? I cannot see why a court of law should deprive the plaintiff of costs, when, if he had proceeded before the same court in equity, on the same state of facts, he would have recovered costs, as of course. 3. The defendant was the party in fault; he broke his contract; the court has so decided, and nothing prevented the court from giving the damages claimed but the peculiar agreement made by the plaintiff with a third party. This ought not to avail the defendant, to screen him. from costs. That circumstance did not render his conduct less objectionable. He and his wife evidently acted in bad faith; and they made use of a mere contrivance to avoid the fulfilment of the agreement. The plaintiff, therefore, on every consideration, is entitled to the exercise of the discretion of the court in his favor, as to the costs.

      T. B. Scoles, for the defendant.
    I. The defendant is entitled to costs, as a matter of course, by sections 304 and 305 of the Code of Procedure. This was an action for the recovery of money, where the plaintiff did not recover fifty dollars. It was a common law action for damages, not an equity suit for a specific performance. There was no prayer for alternate relief. The plaintiff did not even demand judgment for damages generally, but for a special and specific injury only, of which he gave no proof. In a common law action for damages, there is no judicial discretion as to costs. The matter is fixed by statute.
    II. No question of title to land is presented by the pleadings, or came up on the trial. It was admitted by the pleadings that the defendant had title to the land; that his wife was dower-able ; and that no release of dower was tendered to the plaintiff. The only questions raised, were, whether the plaintiff had performed the contract of sale on his part; if so, whether the defendant had performed it on his, and if he had not, what damage had the plaintiff proved. The defendant’s title to the land was not at all in dispute ; neither directly nor collaterally.
    III. A justice of the peace could have tried this action just as he could any other action for an alleged breach of contract, for the simple reason, that no title to land came in question. He could construe the agreement, and assess the damages. There was nothing to oust him of jurisdiction, Had the plaintiff been willing to take his chance of recovering one hundred dollars or less, he might have tried this case in a justice’s court as well as in any higher court. He claimed heavier damages, and went into a higher court: therefore he assumed the risk of costs, if he failed to recover an amount sufficient to carrv costs in that court.

      IV. Actions of this kind have frequently been brought, and nominal damages given; and it never was pretended before that the plaintiff was entitled to costs on the ground that the title to land came in question. In examining the various decisions upon the point, what constitutes a claim of title, not a single case will be found, in which it was contended, that in an action like this for a breach of contract of sale of land, title came in question. The absence of any such precedent, is all but conclusive against the plaintiff. In many cases where the title much more nearly came in question than in a case like the present, it has been decided, that title did not come in question. We refer to a few of them in illustration of the principle. “An answer setting up an entry and claim to land under a contract for sale, does not constitute a claim of title.” (Doolittle v. Eddy, 7 Barb. S. C. R. 75.) “Title does not come in question where the defendant admits title, and claims under a contract.” (O’Reilly v. Davies, 4 Sandf. S. C. R. 722.) “ Where the plaintiff offered to show title, which was not done because admitted by the defendant, title did not come in question.” (Brown v. Myors et al., 7 Wend. 495.) “Where a plea of liberum tenementwm had been put in, yet where the title was admitted so that an inquiry into the title was unnecessary, title did not come in question.” (LaFarge v. Eames, 1 Wend. 100.) “ Even in trespass quare clausum fregit, where a license to cross the plaintiff’s land was the subject of controversy at the trial, upon which there was conflicting evidence, it was decided that title did not come in question.” (Ex parte Coburn, 1 Cow. 578; 3 Johns. A. 450.) “An issue on a license to do or act on real estate, which would otherwise be a trespass, is not a claim of title.” (Launitz v. Barnum, 4 Sand. S. C. R. 637; 18 Wend. 579.)
   By the Court.

This is plainly an action at common law, in which the allowance of costs does not rest at all in the discretion of the court. Under sections 304 and 305 of the Code, either the plaintiff, or the defendant, must be entitled to full costs, and, unless the question of title was involved, they must be given to the defendant.

It is not necessary to affirm, that in an action like the present, the question of title, in the proper sense of the term, may not arise, so as to entitle the plaintiff to full costs, even where he recovers only nominal damages. It is sufficient to say, that we are satisfied that the question did not arise, in this case, upon the pleadings, or upon the evidence. The controversy turned wholly upon the question, whether an inchoate right of dower in the defendant’s wife was a subsisting encumbrance, which was necessary to be removed by a release to enable the defendant to perform his covenant; and this was not a question of title, but of the legal construction of the agreement. It is admitted by the pleadings, that the defendant was the owner in fee of the house and lot, which he agreed to convey. The title of an owner is certainly not divested by an outstanding encumbrance, and, according to the decisions, the question of title is, in all cases, a question of ownership.

We entirely agree with the counsel for the plaintiff that an action like the present is no more fit to be tried by a justice of the peace than a suit in equity to enforce the specific performance of a contract; but looking at the issues made by the pleadings, we cannot say, that under the terms of the Code, as formerly under those of the R. S., this action might not have been tried by a justice, had the damages claimed not exceeded the limits of his jurisdiction.

The order appealed from is affirmed, but without costs.


text:
    Le Roy and another v. Shaw, impleaded with Paterson.
    (Special Term,
    May, 1853.)
    The rale, that persons only severally liable cannot be included in the same action as parties defendants, has not, as a general rale, been altered by the Code.
    The only exceptions are those created by § 120 of the Code.
    No exception is created by § ÍBÍ of the Code, since the causes of action, which may be united under that section, must “ affect all the parties to the action.”

      Semble, that when the action is brought upon a collateral undertaking for the debt of another, the complaint must aver that the promise was in writing.

      The action was brought, as against Paterson, for goods sold and delivered to him, and, as against Shaw, on his guarantee of payment for goods so sold, during one year, from June 11, 1852, to an amount not exceeding $400. A balance of $407.98 was alleged to be due, for which, with interest from January 5, 1853, judgment was prayed against both defendants. The defendant, Shaw, demurred to the complaint, and (among other causes) assigned the following.
    I. That several causes of action have been improperly united in this, to wit:—1. That the action is against two persons, who, as appears by the said complaint, are not jointly liable on the same contract, and to the same extent. 2. That an action for goods sold and delivered to one defendant, is improperly united with an action upon a guarantee, or collateral undertaking, alleged to have been made by another defendant.
    II. The guarantee being a collateral undertaking, and not being alleged to be in writing, facts enough are not stated to constitute a cause of action.

      James S. Carpenter for the defendant, Shaw.

      Hawley & Glover, for plaintiffs.

        Vide Thurman v. Stevens, ante, p. 609.

   Bosworth, J.

Prior to the Code, persons only severally liable, could not be included in the same action as parties defendants. The only exception was that made by the statute relating to suits against the parties to bills of exchange and promissory notes. That the Code intended to continue the same rule is obvious,—first, from § 120, which provides, that “ persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all, or any of them, be included in the same action, at the option of the plaintiff'.”

If other sections of the Code, fairly construed, authorize the same proceeding, this section is idle.

The plaintiff contends that the causes of action, though several, arise out of the same transaction, or transactions connected with the same subject of action, and may, therefore, be united (§ 167).

The answer to this is, that neither cause of action “ affects all the parties to the action.”

The cause of action arising on the guarantee does not affect Paterson; he cannot be charged by reason of it, and it imposes no liability on him. The cause' of action for goods sold and delivered to Paterson, does not affect Shaw; he is liable only upon and by reason of his guarantee, and for the sum guaranteed.

By allowing several causes of action, arising out of the same transaction, to be united, it was only intended to allow such causes of action to be united as might arise against a sole defendant, or against several jointly.

To justify the presumption, that the plaintiff has a cause of action against Shaw, it must be assumed, that the guarantee is in writing. If the two actions can be united, then a purchaser of goods on credit, in open account, and one who has guaranteed his purchases to part of their amount, by a contract in writing, may be sued together; although the credit to the purchaser may be double the amount guaranteed, and the excess of credit has no connexion with the guarantee, and was not induced by it. I think persons severally liable, cannot be prosecuted together, unless they are severally liable, as parties, to a written contract or obligation, on which the names of both appear, as contracting parties.

Whether it is now necessary to aver, in an action against a third person, on a collateral promise, that his agreement was in writing, is not clear. That fact is indispensable to the existence of a cause of action against him. No such fact is averred. 3s it to be presumed, that it was in writing ?

In Elting v. Vanderlyn (4 J. R. 231), on a motion in arrest of judgment, the court ruled, that, whether the promise was in writing or not need not appear in the declaration, that it is matter of evidence only, and, after verdict, would be presumed to be in writing.

The reason of this rule is said to be, that the contract was valid at common law, though not in writing, and that when a statute intervenes, and makes a writing necessary in respect to such a contract, it is not necessary in counting on the contract, to allege it to be in writing, but proof of the writing may be made on the trial; but where a matter is created by statute, and required to be evidenced by writing, the writing must be pleaded, with all attendant circumstances.

But the Code, as it now stands, has not only abolished all the forms of pleadings heretofore existing, but declares that “ the rules, by which the sufficiency of the pleadings are to be determined, are those prescribed by this Act” (§ 140).

The fundamental rule as to a complaint is, that it shall contain “ a plain and concise statement of the facts constituting a cause of action.” The obvious design was, that the actual facts should be stated, and all that are indispensable to a cause of action. By the existing law, it is not enough to subject a person to liability for the debt of another, that he has, upon consideration, promised to pay it. He must have entered into a written agreement to pay it. It is not averred that any such agreement has been subscribed by Shaw. Whether the agreement is in writing or not, is more than a mere matter of evidence. The making of the agreement may be established, without such evidence, beyond doubt or cavil; and yet, the party making it may not be liable. The making of a written agreement is an act or fact, essential to the creation of liability, and no such act or fact is averred.

But whether such an averment be now necessary or not, the ground of demurrer first assigned is well taken, and judgment must be entered thereon in favor of the defendant Shaw.

Approved, on consultation.