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    Alexander McKensie, Plaintiff, v. John Farrell and John Higgins, Defendants.
    1. In an action upon an alleged joint contract against two defendants, or. of whom alone appears and answers, proof that he signed the contract in his own name andas attorney for the other defendant, is sufficient to entitle the plaintiff to read the contract in evidence, without proving any authority ■from the co-defendant to the other to sign for him.
    2. Establishing a joint liability by evidence, competent as to the defendant who does appear and answer, entitles the plaintiff to judgment.

      3. So, it seems, although the defendant who does not appear has not been served with process.
    4. Under the New York Code of Procedure, the plaintiff in an action on an alleged joint contract against two defendants, may have judgment against the one, against whom he establishes a cause of action, although he does not show that the other defendant is jointly liable.
    5. The surrender of a term does not operate to discharge the tenant or his sureties from rent already accrued and become payable.
    6. A reletting of the' demised premises by the direction of the surety for the payment of the rent, for the account and benefit of the surety, after the tenant has failed and abandoned the premises, does not operate as a surrender so as to discharge the surety from further liability.
    7. The entry by the landlord upon the premises, and taking and detaining fixtures and furniture, alleged by the surety for the rent, to belong to himself, are no defense to an action against the surety for the rent; and such facts are not available as a counterclaim in such an action.
    8. Where a tortious taking and conversion of personal property are set up as a counterclaim, the omission to reply thereto does not admit that the defendant is entitled to the damages he alleges. A counterclaim is in the nature of a complaint in a cross action; and in trespass or trover for taking or converting personal property, it is not necessary for the defendant to deny the averment of value or the allegation of damage. They must be proved, even bn an assessment.
    9. Where a verdict is taken, subject to the opinion of the Court at General Term, the Court ought not to entertain objections which, if suggested at the trial, might readily have been obviated.
    10. Where the undertaking of a surety for rent is absolute, that if default be made by the tenant at any time, the sureties will pay the rent and all damages, &c., without requiring notice from the landlord of the tenant’s default, it is not necessary for such landlord, in an action against the surety, after the tenant has abandoned the premises, to prove a previous demand upon the tenant.
    11. An instrument under seal, written beneath a lease to A., whereby, “in consideration of the demise of the premises above mentioned,” the signers covenant for the payment of the rent reserved in the lease, is a valid agreement under the statute of frauds, and sufficiently expresses the consideration.
    12. Although the complaint, upon such an instrument, avers that the lease was given, and that “the said indenture of lease having been so made and conided, the defendants afterwards, on the same day and year, by a certain ' agreement under their hands and seals, in consideration of the demise aforesaid, did covenant and agree,” &c., if on the trial it appear that the execution and delivery of the lease and of the instrument of suretyship, were simultaneous acts, and the giving of the sureties was the inducement to the landlord to the giving of the lease, the Court will not yield to the objection that the complaint shows on its face that the covenant of the surety was without consideration or upon a'past consideration. If necessary, the Court would order the complaint to be amended.
    (Before Bosworth, Ch. J., and Woodruff, J.)
    Heard, November 9th, 1858;
    decided, February 19th, 1859.
    This action was brought against the defendants as sureties or guarantors for the payment of rent, and the performance of covenants by Edward H. Newman.
    The complaint, so far as is material to the questions raised herein, avers the making and delivery of a lease, dated September 21st, 1858, by the plaintiff, of certain premises on Broadway, in the city of New York, to the said Newman, for the term of ten years from the 1st day of May, 1853, at the yearly rent of $2,850, payable quarterly and also the annual water rate or tax on the premises. That the said- indenture of lease having been so made and concluded as aforesaid, by and between the said plaintiff and the said Newman, the deféndants afterwards, by a certain • agreement under seal, dated September 21st, 1853, “in consideration of the demise of the premises above mentioned to the said Newman” covenanted, &c., that if default should be made by Newman they would pay the said rent, &c., and all damages that might arise in consequence of his non-performance of his covenants, “ without requiring notice of such default.”
    The complaint then avers the entry by Newman, his default in the payment of the rent due November 1st, 1854, $712.50, but admits the payment of $557.75 on account thereof; a further default on the 1st day of February, 1855, in the sum of $712.50; another on the 1st of May, 1855, in the sum of $712.50; another on • the 1st of August, 1855, in the sum of $712.50* on account of which, however, the plaintiff has received $587.50; and another default on the 1st of November, 1855, in the sum of $712.50, on account of which, however, the plaintiff has received $587.50. Demand of payment from the defendants of the rent and balances so in arrear is averred and judgment demanded therefor with interest.
    The defendant Farrell, alone answered. He admits that a lease was made and concluded between the plaintiff and Newman, but denies any knowledge. &c., of its covenants and conditions. He denies the execution by the defendants of the agreement alleged to have been executed by them, and denies the averments that rent payable by Newman is in arrear and unpaid.
    And for a separate defense he avers that before the 1st day of February, 1855, the plaintiff entered upon the premises, took possession thereof, and on or about that day let the same to a tenant who has since been in possession thereof, and that this was done without notice to the defendant, and without his consent.
    And he further says, that when the plaintiff took possession of the premises there were certain fixtures and furniture thereon, the property of the defendant, and that on or about the — day • of-, 1855, the defendant went to the premises and demanded that the said premises, with the said fixtures and furniture should be delivered to him, and offered to pay the arrears of rent then alleged to be due, provided said premises and fixtures would be so delivered, but the plaintiff refused to deliver the premises and fixtures, and illegally and .unjustly detained said fixtures and furniture, and has never delivered them to the defendant. That such fixtures and furniture were worth $2,400, which the defendant claims as a “set off or counterclaim.”
    The plaintiff replied by a denial “that the said defendant is entitled to the sum of $2,400, or to any other sum, for damages as alleged and set forth by way of counterclaim in the said answer."
    The action was tried before Oakley, ' Oh. J., and a jury, on .the 20th April, 1857. . »
    On the trial the plaintiff produced the lease alleged in his complaint, dated September 21st, 1853, and an agreement underwritten and bearing the same date, and attested by the same subscribing witness. The agreement is to the effect stated in the complaint as above also set forth, but the signatures are as follows, John Farrell, [l. s.] Jno. Higgins, per Jno. Farrell, [l. s,]
    These, signatures were admitted to be the defendant’s handwriting, but the defendant objected to the reading of the agreement of guaranty in evidence, on the ground that no proof had been given that the defendant had authority from John Higgins to execute the instrument. The objection was overruled and the defendant excepted, and the papers were read in evidence.

      The plaintiff then proved that Newman failed in business about November, 1854, and that after such failure the store described in the lease was closed. That after Newman’s failure the plaintiff’s agent, in November or December, 1854, called on the defendant for the rent in arrear, $462.50, and in November, 1855, he called on the defendant again for the rent then due which was $1,829.75, (the amount alleged in the complaint,) but the defendant paid no part of it.
    On cross-examination the plaintiff’s witness testified, that when he went to the defendant to ask for the rent he asked the defendant if he would allow him (the witness) to rent the premises for him, and defendant said he had no objection at all; “he authorized me to put a bill on the house; he told me to do the best I could, and he would be satisfied.” Again, “I know that Mr. Earrell authorized me to rent the premises, and upon that authority I did rent them.” “ The rent was the best that could be got.” The witness put a bill on the store, and having agreed with one Weston to hire the premises, a lease was prepared, the plaintiff notified of the defendant’s having authorized the witness to let the premises; it was executed by the plaintiff to Weston in his own name; by this lease the premises were let to'Weston for the term of eight years from the 1st of May, 1855, (being for the residue of the entire term of the previous lease,) at the yearly rent of $2,800, payable quarterly. Thereafter the rent due by Weston, $575 each quarter, was paid to the plaintiff.
    In what manner the credits of $587.50 were made up was not proved in detail, but the plaintiff’s witness proved that the balance of rent due under the terms of the lease to Newman was $1,829.75 on the 1st November, 1855, which was about the time this action was commenced.
    No further evidence was given by either party. The defendant moved to dismiss the' complaint on the ground,
    1st. That a joint guaranty had not been proved.
    2d. That the lease to Newman had been surrendered to the plaintiff, and the surrender accepted by him.
    The motion was denied, and the defendant excepted.
    The defendant then moved for judgment for the amount set up in his answer, as a counterclaim, over and above the amount claimed by the plaintiff, on the ground that the plaintiff’s reply did not deny, but admitted, said counterclaim and the damages claimed thereby.
    This motion was also denied, and the defendant excepted.
    A verdict was then taken for the plaintiff for $2,011.75, (the amount claimed, with interest,) subject to the opinion of the Court at General Term, with leave to the defendant, Farrell, to move to dismiss the complaint.
    Upon a case presenting the pleadings and proofs, the plaintiff now moves for judgment on the verdict, and the defendant asks that the complaint be dismissed.

      E. M. Willett, for the plaintiff.
    I. In an action against two on a contract of guaranty, where it appears on the trial that the guaranty was signed by one only, the Court will conform the pleadings to the proof, and give judgment against the one who signed the guaranty. (§ 274 of the Code; § 136, 3d sub.; §§ 169 and 170 of the Code; Brumskill v. James, 1 Kern., 294; Bonesteel v. Vanderbilt, 21 Barb., 26.)
    U. The evidence shows that there was no surrender of .the lease, and a surrender, to be valid, must be in writing. (2 R. S., 194, title 1, ch. 7, § 6.)
    UI. The reply to the new matter set up in the answer, was unnecessary.
    1. The matter set up does not constitute a.counterclaim. (Vassear v. Livingston, 3 Kern., 248; Nichols v. Boerum, 6 Abb., 290; § 150 of the Code.)
    2. It does not contain the necessary facts. (Cases last cited, and in addition, Bates v. Conkling, 10 Wend., 389.) Demand and refusal necessary where no unlawful taking.
    3. It is a tort. (Andrews v. Bond, 16 Barb., 633; as to distinction between tort and contract; § 150 of the Code, 2d sub.; Anon,, 1 Code R., 40.)
    IY. If the new matter constituted a counterclaim, the reply was a sufficient denial thereof. (§ 153 of Code.)
    Y. If reply not a sufficient denial, the Court will give leave to amend the reply, especially as the presiding judge ruled in favor of the reply. (§§169, 170, 171,173 of Code; amendments on trial and before judgment; Nichols v. Boerum, 6 Abb., 290; trial suspended to allow motion to reply.)

      R. O'Gorman, for the defendant, Farrell.
    1. The complaint is founded on a joint contract, and no joint contract is proved. The deed, if valid at all, would be the dezed of Farrell alone, and judgment cannot be had against him alone under the pleadings as they now stand. But the deed is not the deed of Farrell alone, and is entirely inoperative.
    2. There is no evidence at all to support the most important point at issue, viz., that Newman, the lessee,'ever failed to pay his rent, or made any default. No demand on Newman is proved; no refusal by him to pay; no evidence that he did not fully comply with all the covenants of his lease. (Nelson v. Bostwick, 5 Hill, 37.)
    3. The defendants, if liable at all, are liable only for the rent due on November 1, 1854, viz., $462.50.
    The testimony shows that at that time plaintiff’s agent went to Farrell, one of the defendants, and asked him to rent the premises for him, and the premises were, in fact, let to one Weston afterwards.
    Now, defendants are only liable as sureties for Newman, the lessee, and. only during such time as Newman was liable—no longer.
    But Farrell had n,o authority from Newman, the lessee, to con- . sent to anything concerning the premises; and when plaintiff proposed to rent the premises with or without Farrell’s consent, it amounts to an eviction of Newman.
    4. Defendants’ liability, if existing before May, 1855, clearly ceased then.
    The plaintiff, then, clearly took undisputed possession of the premises, and let them to one Weston, who paid him rent.
    It is idle to claim that this Weston went in as tenant of Farrell. He was not selected, by him—got no lease from him—paid no rent to him.
    5. Defendant’s counterclaim is good, and he should have judgment for the difference, at least, between the amount of the verdict and the sum he claims. The reply denies nothing. (Code, §§ 150, 153, 168; Lemon v. Trull, 13 How. Pr. R., 248.)

      6. There is no sufficient consideration for the guaranty. The seal is only prima facie evidence of consideration. (2 R. S., 653, § 107.)
    The only consideration which can be set up, is that expressed in the deed. Where the consideration is not expressed in the deed, it may be shown aliunde ; but where expressed in the deed, none other can be shown. (Schermerhorn v. Vanderheyden, 1 Johns., 139; Winchell v. Latham, 6 Cow., 690; Maigley v. Hauer, 7 Johns., 342; Emery v. Chase, 5 Greenl., 232.)
    Where words “ for other considerations ” are used, it is otherwise. '
    The consideration expressed in the deed is bad.
    It is admitted in the complaint that the guaranty was executed after the demise.
    A mere promise to pay an antecedent debt of the principal, is without a sufficient consideration. (Chit, on Con., 436, and notes.)
    There must be some present consideration—some advantage to the guarantor or his principal on account of the guaranty.
    It is not stated that the demise was at the request of the defendant.
   By the Court—Woodruff, J.

An exception was taken on the trial to the ruling of the Chief Justice admitting the agreement in evidence upon which the action is founded. Although that exception is referred to in the points of the defendant’s counsel as a part of the history of the cause, it was not claimed by him that the ruling was erroneous, and no such suggestion appears upon the points submitted.

Unless it is true that in this action the- plaintiff can have no judgment against the defendant Farrell, who alone appeared and answered, without establishing a right as against Higgins, (the co-defendant,) to a joint judgment against both, then the objection was utterly groundless. As between the plaintiff and Farrell, sufficient proof was given to bind Farrell; indeed, it was admitted that he himself signed the. agreement, and that he also signed Higgins’ name, in form, as his agent or attorney. That admission concluded Farrell. He could not deny his own authority, and as to him, it is to be assumed that he had authority to sign and seal the agreement for Higgins.

But such a signing, and Farrell’s admission on the trial, did not bind Higgins without other proof. If, therefore, the plaintiff was bound to prove oh the trial, by evidence competent as against Higgins, that the lease was executed by his authority, or in default thereof fail to recover as against Farrell, then although as against Farrell, the agreement was competent evidence—the plaintiff could not recover.

This inquiry involves the, next exception taken on the trial, viz.: to the refusal of the Chief Justice to dismiss the complaint because a joint guaranty had not been proved.

The case, as made up and submitted to us on the argument, does not show whether the summons and complaint have been served on the defendant Higgins. If they were, and he neglected to appear and answer, then he admitted that the agreement was executed by himself; as to hito, the verdict was a mere assessment ; and, therefore, when by proof, competent as against Farrell, the execution of the agreement by both was established, the plaintiff was entitled to claim against both as joint guarantors or sureties, and the objection is groundless. (See Halliday v. McDougall, 22 Wend., 264; Downing v. Mann, 3 E. D. Smith, 36.)

And if, in truth, the defendant Higgins was never served with process, then the case of Halliday v. McDougall shows that if the plaintiff gave proof sufficient to charge Farrell as a joint contractor with Higgins, it was enough to entitle him to a joint judgment.

And it has already been said that Farrell, having assumed to sign for his co-defendant, he was not at liberty to deny his own authority. That was proof enough, as to him, of his joint liability.

But it is now settled that under the Code it is not necessary that a plaintiff who declares against two upon an alleged joint contract should establish a joint liability or fail in his action. That the rule was otherwise before the Code is unquestionable, and numerous decisions were made since the Code was enacted, that in this respect the Code had not altered the common law rule. But the Court of Appeals, in Brumskill v. James, (1 Kern., 294,) held that the common law rule is altered, and that now, under sections 274 and 136, judgment may be had against the defendant, who is shown to be liable although proof is not given that is sufficient to charge his co-defendant, if the case proved is one in' which the defendant would have been liable if sued alone. (Claflin et al. v. Butterly & Devin, 5 Duer, 327.)

The other ground upon which a dismissal of the complaint was urged was that the lease to the tenant had been surrendered and the surrender accepted.

To dispose of this, so far as it is alleged to constitute a reason for dismissing the complaint, it must suffice to say that what is called a surrender, viz.: the reletting of the premises, was not made until the 1st of May, 1855. Only $250 of the plaintiff’s claim accrued after that time. A surrender, where one takes place, does not operate to release the tenant from rent already accrued. And if such a change in the relation of the parties could have any other operation upon the obligation of the sureties for the rent, (e. g., as an alteration of the principal contract without the consent of the sureties,) there is no foundation here for such a claim, because in this case it is proved without contradiction that the reletting relied upon as'a surrender was by the authority and consent of the defendant.

Whatever, therefore, may be the effect of this reletting upon the right of the plaintiff to claim rent from Newman or his sureties, from and after the 1st of May, 1855, it furnished no reason for dismissing the complaint. The rent accrued to that day, and in arrear, was not thereby-released, nor was the plaintiff’s right to recover therefor affected. (Sperry v. Miller, 16 N. Y. R., 407.)

The remaining exception was to the refusal of the Chief Justice to order judgment for the defendant for the amount of the damages set up by him as a counterclaim, so far as such amount exceeded the claim of the plaintiff.

No proof whatever was given of the facts alleged in this part of the defendant’s answer, and therefore if they .constituted any “defense’.’ to the action, they were in. issue by law and not being proved they cannot.avail the defendant. Matters of mere defense call for no reply. (Code, § 168.)

But if the facts stated would, if true, constitute a legal counterclaim, then, unless put in issue by a reply, they are to be deemed admitted.

We are of opinion that the reply in this case was not sufficient to put those facts in issue. No one fact alleged as a ground of counterclaim is denied by the reply; all that the "reply contains is a denial that the plaintiff is .entitled to the sum he claims for damages, or to any other sum. It seems rather to admit the facts to be true, and to insist that the plaintiff is nevertheless not entitled to damages.

But the motion was properly denied upon either of two grounds :

1. If the facts alleged, to wit: the taking possession of and the detention of the defendant’s fixtures and furniture, would constitute a proper counterclaim in this action, the omission to reply did not admit the value of the property nor the amount of damages. A counterclaim is in -the nature of a complaint in a cross action, and in an action for taking or converting personal property, it is not necessary for a defendant to deny the amount of value or the allegation of damage. They must be proved on an assessment although the defendant puts in no answer. (Connoss v. Meir, 2 E. D. Smith, 314; Butterworth v. Kennedy, Sup. Ct., G. T., Nov. 27th, 1858.) So here the defendant, if his facts warranted a counterclaim, should have proved his damages, and not having done so he could claim to be allowed nominal damages only..

2. The facts alleged do not constitute a counterclaim. They neither arise out of the contract which is set forth in the com-' plaint as the foundation of the plaintiff’s claim, viz.: the agreement of suretyship, nor out of any other contract, nor are they connected with the subject of the action, viz.: the rent of the store.

They show a mere tort, a trespass to personal property, and an unlawful detention thereof. This is no counterclaim in an action on contract for the rent of a store. (Drake v. Cockroft, 4 E. D. Smith, 34; 10 How. Pr. R., 377.)

This disposes of all the questions which were raised at the trial.

Upon the argument before us at the General Term the defendant’s counsel presented for our consideration several points, then for the first time suggested.

If on the hearing of a cause in which the verdict is taken at a litigated trial, subject to the opinion of the Court upon the questions of law, the General Term should permit any questions of law to be raised which were not raised on the trial, it should not be such as if suggested there, might readily have been obviated.

The defendant here, now objects that the proof does not sufficiently show that the tenant -did not pay the rent, nor that it was demanded of him.

Had any such suggestionbeen made the plaintiff would have had an opportunity to give further proof on those points if he thought proper.

And if we deemed the proof in these particulars, defective, we should be reluctant to order a new trial when, as in this case, it is manifest, from the history of the trial given in the papers, that no importance was attached to this question, and that both parties conducted the trial, not indeed upon any formal admission that these facts were sufficiently proved, but upon a plain recognition that they were true.

We think, moreover, that enough was proved. The plaintiff’s witness testified in terms to the amount of rent in arrear, and the lease showed when -it accrued. If the defendant will take the benefit of the payments admitted in the complaint to have been made, then computation fixes precisely when the default took place, and just how much of each quarter’s rent was in arrear. If the defendant desired any more specific evidence, he had an opportunity to cross-examine the witness. As the case stands his statement in general terms of the amount in arrear is prima fade sufficient.

In relation to a demand of the tenant, the proof is of a demand in November, 1854. That the tenant then failed and the store was closed, and thereafter demand was made of the surety, and no objection is suggested down to this argument that a demand from the tenant was desired, or would avail anything. If a demand were material, it would be no injustice to hold the objection waived. Had the objection been made, even on the trial, the plaintiff would have had an opportunity to show either a demand, or that due diligence was used, or show other circumstances excusing a demand.

We, however, do not think that, where the tenant had failed and abandoned the premises, it was the duty of the plaintiff, under this agreement, to pursue him for the purpose of making a demand from quarter to quarter. The undertaking of the defendant was absolute and unqualified to pay the rent if the tenant did not, and that without requiring notice of the tenant’s default. He undertook to see to it that the rent was paid. This is unlike an undertaking that another shall pay on demand. (5 Hill, 37.)

Although the reletting by the plaintiff to Weston did not discharge the defendant from liability, for rent already accrued and in arrear, and therefore was no ground of nonsuit, it is now insisted that it has effect as a surrender, by operation of law, and therefore the defendant was discharged from any liability for rent accrued after the first day of May.

That an entry upon the demised premises, and the giving of a new lease by the landlord to a third person, with the consent of the original lessee, the occupation by the new tenant, and the acceptance of rent from him by the landlord, would terminate the right of the landlord to claim rent of the original lessee, cannot be denied. (Schieffelin v. Carpenter, 15 Wend., 400; Hegeman v. McArthur, 1 E. D. Smith, 147; Stone v. Whiting, 2 Stark. R., 235; Sparrow v. Hawkes, 2 Esp. N. P. R., 505; Thomas v. Cook, 2 Barn. & Ald., 119.)

So it was held in Walls v. Atcheson (3 Bing., 462,) that where a tenant quit the possession in the middle of a term, and the landlord let them to another tenant, he could not recover against the original tenant. In that case, however, the lease is not stated to have been in writing, and the Court treat the acts of the landlord as a rescission of the agreement for the letting and hire of the premises.

Again, the lease provided that if the' rent was not paid, the landlord might re-enter. The lease was forfeited if the landlord chose to avail himself of his right of re-entry. But even then the tenant would remain liable on the covenants for all rent which accrued and became payable before such re-entry. (Hall v. Gould, 3 Kern., 134, and cases cited.)

Probably there was not enough shown, however, to entitle the landlord to re-enter as for a forfeiture. (See 2 Comst., 141; 16 How. Pr. R., 449.)

And if the act of the landlord in taking possession of the premises and letting them to Weston, was not with the assent of the tenant, and did not amount to a surrender, and was not a reentry to enforce a forfeiture of the term, then it was an eviction of Mewman, and an eviction suspends the rent until the possession is restored to the tenant. But an eviction does not prevent a recovery of rent accrued and payable before the eviction takes place. (Giles v. Comstock, 4 Comst., 270; Vernam v. Smith, 15 N. Y. R, 327.)

Surrender, entry and eviction would either of them terminate the right of the landlord ■ to collect rent accruing and payable thereafter.

But as between the defendant, Farrell, and the plaintiff, there was neither eviction, entry nor surrender, which affected Farrell’s liability.

There was no eviction. As to him, nothing illegal or tortious was done. On the contrary, the reletting was. by his express request and authority and for his benefit. Unless, then, the re-letting operated per se as a surrender, a voluntary acceptance of the new tenant as a substitute for the former lessee, the reletting only affected the defendant, Farrell, to the extent which the rent paid by the new tenant reduced the amount for which he was liable to the plaintiff.

McFarlane asked the defendant iflre would allow him (McFarlane) to rent the premises for him. He authorized McFarlane to put a bill on the house. He told McFarlane to do the best he could, and he would be satisfied. McFarlane put a bill on the store as authorized by the defendant, and received a number of applications. The plaintiff being informed of the authority given to McFarlane, introduced Weston to McFarlane as the defendant’s agent. McFarlane and Weston agreed upon the rent, which rent was the best that could be got. In the further language of the witness, McFarlane, “ The defendant, Farrell, authorized McFarlane to rent the premises, and upon that authority he did rent them to Weston.”

Here is clear proof of an authority by the defendant to rent the premises on his account, and for his benefit, and they were so rented. Nothing can be more obvious than that, if McFarlane had been in such a condition that he could have given to Weston a lease in the name of Farrell, the defendant, the new letting could have in no wise affected the plaintiff’s rights. But Farrell had gone to Europe. His agent, Mr. Wight, requested McFarlane to lease the premises. The tenant would reasonably expect a lease from some person who had some title to give. In those circumstances, compliance by the plaintiff with the request of the defendant, to give the lease to Weston, and so secure a . letting for the defendant’s benefit, ought not to be regarded as a discharge of the defendant from liability for the residue of the rent. So to hold would be doing violence to the manifest intent of the transaction and the understanding of all parties. It was but a reletting for the defendant’s account and risk, done in good faith, by his express authority, for his own account and for his benefit as a reduction of his liability. As to this defendant, the reletting should operate no more to the prejudice "of the plaintiff than if it had been done in pursuance of an original authority reserved to him in the lease, to relet the premises in case of default by the first lessee, and apply the proceeds of the reletting in reduction of the rent originally reserved.

The circumstance that McFarlane’s connection with the transaction grew out of his agency for the plaintiff does not affect this view of the subject. If McFarlane be regarded as the plaintiff’s agent, still the new lease was made in consequence of the defendant’s request that the premises should be relet for his benefit. If such request was made to the plaintiff’s agent, then it was in law a request to the plaintiff, and the case then is, that Farrell, the defendant, being liable for the full rent, and "the premises being unoccupied, requested the plaintiff to relet them. He could not in this aspect of the case have expected the plaintiff to relet them in his (Farrell’s) name, but only that he let them for his benefit, in so far as the rent reserved and thereby obtained might satisfy his liability.

• And on the other hand, if McFarlane be regarded as acting, not as the plaintiff’s agent, but as agent for the defendant, (as he himself states and evidently understood his relation to the transaction,) then he did procure a tenant for the defendant, agreed upon the rent, and his request to the plaintiff and procurement of the lease to Weston in pursuance of the defendant’s authority, was tantamount to a direct request by the defendant himself to the plaintiff and an authority to the plaintiff to give the lease and look to Farrell for the deficiency of the rent.

The plaintiff has therefore done nothing in all this, except at the defendant’s request, with a view to his relief. All has been done in good faith, and done discreetly with reference to the defendant’s interest in the matter. Such a transaction, we think, cannot operate either legally or equitably to discharge the express covenant of the defendant.

It is further insisted, however, on this appeal, that the instrument upon which the action is brought was executed upon a consideration already past, to wit: in consideration of a previous lease already executed and delivered to the original tenant, Newman. That a past consideration is not sufficient in law to uphold an agreement of guaranty, and that, therefore, the defendant is not and never was liable to the plaintiff for the rent sued for.

The instrument upon which this action is brought is an undertaking to answer for the default of Edward H. Newman, the plaintiff’s lessee.

Such an undertaking, to be valid and binding, must be in writing, and in some form it must express the consideration, either in words or by a form that as matter of law imports consideration. (2 R. S., 135.)

An instrument, under seal, is held not void under the statute, although no consideration is in terms stated therein, upon the ground that the seal imports consideration. It is sufficient, if upon the face of the instrument consideration is a necessary legal implication. (Maghee v. Kellogg, 24 Wend., 32; Bush v. Stevens, id., 256.)

And it is, therefore, said that án iustrumént under seal is not within the statute of frauds. (Barnum v. Childs, 1 Sandf. R., 58; 11 Barb. S. C. R., 14, and cases therein cited.)

The instrument in question expresses- a consideration by its terms, and is also sealed by the defendant. There is, therefore, no pretence or claim that it is invalid within the statute of frauds.

It purports to have been entered into “ in consideration of the demise of the premises above mentioned,” (i. e., the demise contained in the instrument underneath which it was written,) to the “ party of the second part,” i. e., to the party to the lease, who was not a party to the underwriting.

It bears the same date as the lease, and is attested by the same witness. By reference, it is made to form a part of the same transaction. Its most obvious import as well as the natural inference from what appears upon the two instruments is that they were executed simultaneously, and that the giving of the lease was the inducement to the execution of the instrument of guaranty, and constituted the consideration thereof. And such a consideration is sufficient.

Although the form of words employed in the instrument is not best adapted to express a present consideration, we are clear that it does not necessarily import that the consideration is past, and that the demise had already been executed and delivered; but that the more natural signification is, as already suggested, that both were one transaction. That the giving of the lease was the consideration moving the defendant to execute the instrument, and the execution of the instrument by the defendant was one of the considerations moving the plaintiff to execute and deliver the lease to ¡Newman.

The plaintiff was, therefore, entitled to maintain an action on the instrument, and the suggestion of the defendant’s counsel that the instrument was founded upon a consideration already past, and that it is therefore nudum pactum is not warranted by ■» the instruments themselves, nor by any proofs given at the trial.

The instruments, therefore, and the other proofs given on the trial, sustain the plaintiff’s claim, and entitle him to recover. And had there been no recital or mention of consideration in the instrument executed by the defendant, the plaintiff would still be so entitled because the seal imported consideration sufficient in law to sustain the covenant. And although the seal is not now conclusive, still its prima facie, import must prevail unless the defendant gives evidence to destroy the legal implication.

It is, however, urged that the plaintiff has, in the complaint itself, stated that the instrument was executed after the lease to ¡Newman was made and concluded, and has thus by his own admission shown that the consideration was wholly past, and therefore insufficient to sustain the covenant.

The case of Barnum v. Childs, above cited, would seem, if followed to the full extent, to warrant us in saying that the seal to the instrument carried with it such a legal implication, that although the consideration mentioned was a previous lease already executed, still the seal wa& prima facie evidence of some sufficient consideration for the defendant’s covenant that the rent reserved in such lease should be paid; and the sealing having been averred in the complaint and proved on the trial, that this was enough to put the defendant to proof that there was in fact no legal consideration.

But, as already observed, the fair and reasonable inference from the instruments is, according to their natural and sensible construction, that they were executed simultaneously. The giving of the lease to Newman being the inducement to the defendant’s covenant, and this is sufficient to uphold it, whether the seal prima fade imports other or further consideration or not. The defendant on the trial not only failed to give any evidence showing a want of consideration, but no suggestion was made that consideration enough was not proved by the instruments themselves. Under such circumstances, although the form of words used in the complaint is susceptible of a construction indicating that the only consideration for the covenant was a previous lease already concluded, we ought not to give it such a construction and send the parties to a new trial, or put the plaintiff to a new suit, unless the complaint is so bad in substance that the discrepancy between the allegation and the proofs must be treated as a fatal variance.

The proofs were received without objection, and a sufficient cause of action is made out. If the words of the complaint may be read consistently with such proofs, it is our duty so to read them. The only ground of the objection lies in the language, “the lease having been so made and concluded,” “the defendants afterwards in consideration of the demise, &c., covenanted, &c.” It is doing no violence to this language, when we bear in mind the facts which did sufficiently appear on the trial, and the rule of the Code that pleadings “ shall be liberally construed with a view to substantial justice between the parties,” (Code, § 159,) to say that the pleader did not by these words intend, and was not understood by the defendant to mean that the lease to Newman had been executed and delivered - before the guaranty was made.

And ..even if the more natural construction of this language be, (as we think it is,) that the lease was in order of time completely finished before the guaranty was made, still we think that the erroneous statement in this respect should not now estop the plaintiff to insist upon his rights according to the truth of his case, as sufficiently proved without objection. In this aspect the error in the statement is only a variance, which has not misled the defendant, and which might he either amended or disregarded.

Our conclusion is that the nlaintiff should have judgment upon the verdict.

Ordered accordingly.


source: Caselaw Access Project

author: Pierrepont, J. Hoffman, J.

license: Public Domain

text:
    Samuel Harris & Sons v. Moody & Telfair.
    1. Jettisoned goods carried on deck, according to the custom of the trade by steamboats navigating the Sound that separates Long Island from the main land of New York and Connecticut, and stowed in the usual way, are entitled to contribution for general average loss.
    2. Bank bills of the plaintiffs, so carried for them in a crate by an Express Company, which, by agreement with the owners of the steamboat, paid such owners a fixed annual sum for the carrying of a stated number oí portable crates with the contents thereof, are bound, when saved, to con-
    . tribute for such a loss.
    3. The bills, in the absence of -proof to the contrary, will be presumed to be of the value expressed on. their face, and must contribute in proportion to the amount of such value.'
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, December 15, 1858;
    decided, February 19, 1859.)
    This action comes before the Court on questions of law, arising at the trial, and which were there ordered to be heard in the first instance at the General Term.
    It was tried before Mr. Justice Slossow and a jury, on the 21st of June, 1858-. It is brought to recover the possession of a package of bank bills.
    The complaint states that the defendants have become possessed of and wrongfully detain one package of bank bills, the property of the plaintiffs, amounting to $1,171, “ said package being sealed in 'an envelope and marked “$1,171,” and directed to “ J. W. Clark & Co., Boston, Mass.; ” a demand of the package from the defendants; their refusal to deliver it; that it is of the value of $1,171; and prays judgment that the defendants deliver the property to them; and for damages ($500) for the detention, and costs of suit.
    The answer admits the defendants’ possession of the property, a demand of it, and their refusal to deliver it; but denies that their detention of it is wrongful.
    It also alleges that, on the 17thof October, 1856, the steamboat Connecticut left the port of New York for Allyn’s Point, Connecticut, staunch, tight and strong; having on board many passengers and a large and valuable cargo; that while pursuing this voyage she encountered a heavy gale, and was much injured ; that it became necessary for the general safety to throw overboard some twenty-five tons of her cargo, which was done, whereby she was enabled to enter Huntington harbor, and was saved, with the residue of the cargo; that the cargo jettisoned was of the value of over $15,000; that the loss caused by such jettison is the subject of a general average contribution; that the said package of bills, which was saved, is liable to contribute; that they received and hold such package as agents of the owners of said steamboat, to secure the payment of its contributory share, and which is alleged to exceed $200; that they have offered to deliver the package to the plaintiffs, provided they would agree to pay the general average properly chargeable thereon; but that they refused to pay, or to agree to pay, any part thereof, insisting that the bank bills are not the subject of general average, and were exempt therefrom. It prays judgment that the bills be returned to them, and that the plaintiffs pay damages for the taking and detention thereof, with the costs of the action.
    The entire testimony given and proceedings had at the trial were as follows, viz.:
    The following stipulation was read in- evidence by counsel for the defendants:
    “ It is stipulated and agreed, by and between the parties to this action, that the steamboat ‘ Connecticut,’ on a voyage from New York to Allyn’s Point, on the afternoon and evening of the 17th October, 1856, encountered a heavy gale, whereby she sustained great damage, losing her smoke stack and forward mast, and being greatly strained and injured. That the storm continued unabated, and it was evident that the vessel would go down unless she could be brought around; and in order to do this it became and was necessary, for the general preservation, to lighten the boat; and in consequence thereof, with a view to the general safety, a large amount of cargo was jettisoned, by means whereof the steamboat was enabled to turn, and finally to enter Huntington harbor in safety, whence she was brought to New York on the succeeding day.
    “ That the cargo which was jettisoned was not under cover, but, according to the established usage and custom of the trade by steamboats running between New York and Allyn’s Point, was carried on the main deck of the steamer; the space below that deck being, as usual, occupied by the engine, boilers, coal, &c., and by the passengers.
    “ That most of the cargo jettisoned was laden upon the upper or main deck of said boat along each side of the ladies’ cabin, and between, the stern of the boat and the paddle boxes, being the space, according to usage and custom, appropriated to cargo. A cabin is built upon the said deck, and occupies a space in the centre of the vessel, and equi-distant from each side of the boat, and between the sides of the cabin and the sides of the boat the said cargo was stowed.
    “ That the bank bills, for the recovery of which this action is brought, belonged to the plaintiffs, and were by them entrusted and delivered, at Baltimore, to Adams & Co.’s express agents and forwarders, to be by them transported to and delivered at Boston to the plaintiffs’ agents, and that said bills were ip a crate or case belonging to Adams & Co;, which was laden on board the said vessel at the time of the said jettison.
    That by the agreement between Adams & Co. and the owners of said steamboat, the said Adams & Co. were, in consideration of a fixed annual sum, permitted and allowed to transport on said boat, a stated number of portable crates, with the contents thereof; and the said Adams & Co. made and collected their own charges for the transportation of the contents of the said crates from the parties-who employed them,
    “ That the owners of the said boat, claiming that the said bills were liable to contribute in common with the other property saved to the payment of the general average loss occasioned by said jettison, retained the said bills and delivered them to the defend- . ants in this action, who were, at the commencement thereof, in the possession of the same, as the agents of the said Awnersft^j secure the payment of the contributory share of such general average loss for which the said owners and said defendants insisted: that the said bills are liable to contribute, as part of the cargo of the vessel.
    “ Dated June 19th, 1858.”
    "It was admitted that the bank bills mentioned in the complaint were, upon the requisition of the plaintiffs, taken from the possession- of the defendants, and delivered to the plaintiffs.
    “ The testimony hereupon closed; the counsellor the defendants thereupon insisted, as matter of law, that on the facts admitted the property in the complaint mentioned was liable to contribute to the payment of the general average loss occasioned by the accident, in the pleadings and stipulation mentioned, and that the defendants were rightfully entitled to hold and retain the said property, and that they were entitled to a verdict. The Court so decided, and directed the jury to find a verdict for the defendants. To such decision and direction the plaintiffs’ counsel excepted. The jury, under the direction of the Judge, rendered a verdict in favor of the defendants, and assessed the value of the property at $1,171, and the damages of the defendants at $134.33.
    “ And the Court ordered that the questions of law raised on the said trial, and the plaintiffs’ exceptions, should be heard in the first instance at General Term, judgment in the meantime to be suspended.”

      J. E. Burrill, for the plaintiffs.
    I. The cargo jettisoned was stored on deck, and is not entitled to- the benefit of general average. (Abb. on Ship., part IV., ch. X., sub. 3, p. 481; Stev. on Av., 65; Smith v. Wright, 1 Caines’ R., 43; Dodge v. Bartol, 5 Greenl. R., 286; Cram v. Aiken, 13 Maine R., 229; Sproat v. Donnell, 26 id., 185; Lenox v. United States Ins. Co., 3 Johns. Cas., 179.)
    II. Bank notes, by reason of their peculiar character, are exempt from liability to the payment of a general average loss.
    1. A loss occasioned by - jettison is chargeable on the ship, freight and" cargo,, and the principle on which it is so chargeable, is, that without the sacrifice of the property jettisoned, the particular contributory interest would have perished, and that by means of such sacrifice, and by it alone, was such contributory interest saved, or, in other words, that the property sacrificed was the price of safety of that which is made to contribute to its payment. (3 Kent’s Com., Lec. 47, pp. 233, 234; Williams v. Suffolk Ins. Co., 3 Sumn. R., 270; Scudder v. Bradford, 14 Pick, 13; Bradhurst v. Columbian Ins. Co., 9 Johns. R., 9; 2 Phil. on Ins., §§ 1293-1298.)
    2. Bank notes are the mere evidences of debt, which debt is not impaired by the loss of the evidence, and which evidence, in case of loss, may be supplied by other evidence equally good. (2 Phil, on Ins., § 1397.)
    3. Title deeds, bonds and mortgages and choses in action, are necessarily exempted from contribution, and on principles' which apply equally to the exemption of bank notes.
    All the books, in speaking of articles liable to contribute, allude to goods, chattels and money, and in speaking of money, refer to gold and silver coin. (2 Phil. on Ins., §§ 1393-1398; 1 Park on Ins., ch. 7, § 2, p. 293; Abb. on Ship., 502, part IV., ch. X., sub. 12; Hill v. Patten, 8 East. R., 375; Brown v. Stapyleton, 4 Bing. R., 119; Stev. on Av., ch. VI., art. 1, p. 206.)
    III. Under the arrangement between Adams & Co., and the owners of the Connecticut, the bank notes in question paid no freight, and did not form any part of the cargo of the vessel, and on that ground are exempted from liability to contribution. (Abb. on Ship., 502; 4 Bing., 119; 8 East. R., 375; Stev. on Av., ch. VI., art. 1, p. 206.)
    IV. The plaintiffs were entitled to judgment.

      Francis B. Cutting, for the defendants.
    I. The bank bills were packed in a crate or case, and transported as merchandise for hire. They became a part of the regular cargo of the vessel. As such cargo, they were liable to contribute to the general average loss which occured.
    1. Money, bills of credit, choses in action, &c., are only excepted, when carried like clothes and baggage under the personal care of a passenger or seaman; and not when carried as' cargo for hire, or when they are to be saved or lost like other cargo, merely from the general care and conduct of the persons controlling and managing the vessel. (2 Arn. on Insurance, 919, and authorities referred to; 1 Phil. on Insurance, 2d ed., 172, and cases cited; 2 id., 2d ed., 152; 3 East., 375; Thomas v. Royal Exchange Association Company, Man. Dig., 164; h. i. No. 5; Peters v. Milligan, Park on Ins., 211; Mil., 244; Brown v. Stapyleton, 4 Bing., 119; Stev. & Ben., 206, 248; Emer. on Insurance, Mer., ed., 492, 497.)
    2. A steamboat becomes a common carrier of money or bills, the same as of other property, when it takes one of these express crates, filled, as is well known, with small parcels of value. (11 John. R., 109; 2 Wend., 339; 6 How., 344.)
    The owners being responsible for negligent losses of the crate with all its contents as cargo, should have the like inducements and compensation to save it from sea perils. There is no principle upon which it can be excepted.
    3. The plaintiff seeks to maintain replevin for the bills as a distinct- parcel; (not as so much money for which the defendants as agents would be answerable only to their immediate principal.) He thus concedes and treats the parcel as merchandise.
    4. The bank bills are not shown to be uncurrent, and are not to be treated as mere choses in action or evidences of debt. They are payable to bearer, and used as a currency; and could be levied on as goods. (13 Wend., 102.)
    II. The jettison from the main deck of the steamer, the recognized and only place for carrying freight in such a vessel by established usage, was not subject to the exception applied to goods “ carried on deck ” of a sea-going sailing vessel. The exception itself is not absolute and universal; but governed by the customs and usage of vessels on the voyage for which they are shipped. The upper deck is not required to be so strong or close as on the ocean; and the crate was not in any place affecting the management of the vessel, nor subject to peculiar exposure to a jettison. (2 Arn., 888; Abb., 481, 482; Valin., tom. 2, p. 189, [goods in open boats or small vessels;] Da Costa v. Edmunds, 4 Camp., 142; Gould v. Oliver, 4 Bing., N. C., 135; Milward v. Hibbert, 3 Queen’s Bench, 120; S. C., 2 Gale & Davis., 142; Harley v. Milward, 1 Jones & Cary, 224, 229.)
    [Even if otherwise, it only affects the amount of general average. The vessel had to bear away to a port of necessity, and goods on deck, when not contributed for, must contribute to a general average loss.]
    III. There was no tender of payment or security, nor authority given to open the package and separate and retain a part; nor does it- appear when the demand was made; so that no question arises but the naked one, whether there was a lien for a general average loss, of which there can be no doubt. (8 Sum,, 808; Abb., 508; marginal page and notes to Story & Perkins’ ed., and authorities .there referred to.)
    IV. The defendants are entitled to judgment.
   Pierrepont, J.

This case comes before us by direction of the Judge below, and presents the following facts:

The steamboat “ Connecticut,” on her voyage from Hew York to Allyn’s Point, pn the 17th of October, 1856, encountered a heavy gale, and for general safety it became necessary to throw a large amount of her cargo overboard. Most of the cargo jettisoned was stowed on ■ the main deck, in accordance with established usage of the trade by steamboats running on the Sound.

The space below the main deck was, as usual, occupied by the engine, boilers, coal, &c., and by passengers.

Upon the deck was a crate of Adams & Co., express agents and forwarders. In the crate was a package of bank notes belonging to the plaintiffs, amounting to $1,170, which they had entrusted to Adams & Co., to transport to Boston for hire.

By agreement between Adams & Co. and the owners of the steamboat, Adams & Co. were allowed to transport on said boat a stated number of portable crates with their contents, and for this privilege they paid the owners of the boat a fixed annual sum, and Adams & Co. collected their own charges for whatever they transported in the crates.

The owners of the boat, claiming that the bank bills saved were liable to contribute in general average towards the loss occasioned by the jettison, retained the bills, to secure the payment of their contributory share of such loss. The' plaintiffs brought this action to recover the bills.

This case presents the important question touching the liability of goods stowed on the deck of a steamer, to contribute in general average for jettisoned cargo. The necessity of the jettison is admitted, and the jettisoned goods were stowed on deck.

Laws were written upon the subject of general average contribution for jettisoned cargo before the Roman Code, and the law of ancient Rhodes was transplanted into the Roman law, and appears duly accredited in the Pandects of Justinian. (Digest, lib. 14, tit. 2, ch. 2.)

The Digest states it thus:

Lege Rhodia cavetur, wt si levandce navis gratid, jacius mercium foetus est, omnium, contributions sarciatur, quod pro omnibus datum est."

If goods are thrown overboard in order to lighten a ship, the loss incurred for the sake of all shall be made good by the contributions of all. But ancient as is the law upon this subject, an embarrassment arises out of the distinction made between deck-stowed goods and other cargo; and it must be confessed that the law yet remains in some confusion.

Chancellor Kent says (without qualification): “ Goods shipped on deck contribute, if saved; but if lost by jettison, they are not entitled to the benefit of general average; for they, by their situation, increase the • difficulty of navigation, and are peculiarly exposed to peril.” (3 Kent Com., 240, and cites Smith v. Wright, 1 Caines’ R., 43; Lenox v. United States Ins. Co., 3 Johns. Cas., 178, and other authorities, in support of that doctrine.)

In Abbott on Shipping, we find it stated thus: “ The ^French ordinance in express terms excludes from the benefit of general average, goods stowed upon the deck of the ship, and the same rule prevails in practice in this country.” (Abb. on Ship., 482, citing many authorities.)

Judge Story says: “ Our law is the same. A jettison of goods stowed on deck cannot be brought into general average.” (In note to Abbott in his edition.)

Bell, in his Commentaries upon the Laws of Scotland, says: “ Goods stowed on deck, and thrown overboard, are not to be relieved by contribution.” (Yol. 1, p. 586.)

In Kent’s Commercial and Marine Law, 231, it is said: “ Goods shipped on deck are not entitled to the benefit of general average, if lost.”

The reason assigned for this rule, is, that goods thus stowed tend to embarrass the navigation of the vessel, and to increase the danger. The American authorities are numerous and seem ,to sustain the above rule. (Cram v. Aiken, 13 Maine R, 229; Sproat v. Donnell, 26 Maine R., 185; Barber v Brace, 3 Conn., 9; Dodge v. Bartol, 5 Greenl., 286; Hampton v. Brig Thaddeus, 4 Martin N. S., [Lou.,] 582; Lenox v. United States Ins. Co., 3 Johns. Cas., 179; Smith v. Wright, 1 Caines’ R., 43.)

Mr. Arnould, however, says: “ That goods carried on deck are • not contributed for if jettisoned, unless they are so carried according to the common usage and course of trade on the voyage for which they are -shipped; but that on proof of such usage, they are contributed for like other goods.” (2 Arn. on Ins., 888.)

And in Gould v. Oliver, (4 Bing., N. C., 185,) it was held that goods laden on deck, according to the custom of a particular trade, are entitled to contribution for a loss by jettison.

In the case of Milward v. Hibbert, (3 Queen’s Bench, 120, S. C.; 2 Gale & Davis., 142,) it appears that a quantity of pigs, in the course of a voyage from Waterford to London, were thrown overboard from the deck where they were stowed. It was insisted that for the deck-stowed pigs no contribution could be claimed. The Court held otherwise. Lord Denman, in pronouncing the opinion of the Court, makes the following very pertinent remarks : “ The practice appears to have been, not to lay it down as a rule of law, that for goods stowed on the deck the owner of them shall be' excluded from the benefit of general average, but to receive the evidence'of commercial men respecting the usage of the trade, and the general understanding of those engaged in it, (and. in insuring,) which may obviously vary and require, from time to time, fresh evidence and different explanations.”

These views of Lord Denman will, I think, commend themselves to every man of business knowledge or good sense.

The old rule was established when all vessels were propelled by sails, aiid when there was no machinery in the hold of the ship; but the introduction of steam into marine service, has wrought great changes in the situation of the motive power, and has rendered the steamboat -deck the fitter place for the stowage of cargo. The reason of the rule has ceased, and the rule should perish with the reason. In the common law there is a wise flexibility which yields to the progress of science and to the. changes in the mode of business, and we are prepared to hold that cargo, stowed upon the deck of a steamboat, in accordance with established usage of the trade, must contribute, in general average loss occasioned by jettison, the same as goods stowed elsewhere. (Harley v. Milward, 1 Jones and Cary, 229.)

The plaintiff contends, under his third point, that under the arrangement between Adams & Co. and the owners of the Connecticut, the bank notes in question paid no freight, and did not form any part of the cargo of the vessel, and on that ground are exempted from liability to contribution.

.Adams & Co. paid freight for the crate and its contents, not for the empty crate alone. It would be as reasonable to hold that the goods in boxes paid no freight, but only the boxes. The fact that Adams & Co. paid by the year, can make no difference in the principle of this case.

It was ably pressed upon our consideration at - the argument that, as the whole doctrine of contribution for jettisoned goods rested upon the ground “ that the property sacrificed was the price of safety of that which is made to contribute,” (3 Kent’s Com., Lec. 47, p. 233,) it would be most inequitable to make a light package of bank notes mo^e valuable -than the whole cargo, (and which could have been taken in the hand from the crate,) contribute in proportion to their value; so disproportionate to the risk and to the real price of safety. And Lord K a méis in his Principles of Equity, (116,) contends that the contributions should be according to weight and not value. But it is now well settled that gold coin and diamonds must contribute. A dollar bill occupies more space than four gold dollars, and a diamond, worth $40,000, occupies scarce the space of ten one dollar bills.

“ The general rule is, that all merchandise, of whatever kind, or to whomsoever belonging, contributes according to its value, however small the size or weight in comparison to the value. (3 Kent’s Com., 240; Abb. on Shipping, 502, and the numerous authorities cited.)

But this case presents another question of some embarrassment, and about which the books are in direct conflict; and that is, whether bank notes which are not money, but only the evidences of debt are liable to contribute for general average loss. Mr. Philips thinks they are not liable. (2 Phil. on Insurance, 155, §§ 1397, 1295.) Weslcett (an old writer)) thinks they are. (Wesk., tit. Cont.¡ 1.) Arnould makes no positive statement; he says, Weskett’s “ seems to be the better opinion,” but cites no authority.

The industry of the counsel who argued this cause with so much care on either side, did not furnish us with a single decision upon this point, nor have I been able to find one.

By the Rhodian law it was deemed just that all should contribute to whom the jettison had been of advantage, and the amount was apportioned according to the value of the goods. It extended to the apparel of every person, even to the ring upon the finger, though the ring and clothes paid no freight. By the English law personal jewels and wearing apparel do not contribute. (Abb. on Shipping, 503.) (roods, wares, money, jewels and all other property transported as merchandise contribute in proportion to their value. (3 Kent’s Com., 240.)

Bank notes are not money,- they will.not satisfy an execution, they are not a legal tender. Recovery may be had against an individual upon his promissory note lost or destroyed and so also against a bank where the.bank note is destroyed; hence it is argued, that the bank bill being only the representative of property or evidence of debt, is not bound to contribute.

In Handy v. Dobbin, (12 J. R., 220,) the opinion of the Court was delivered by Judge Speuceb, holding expressly that bank bills were goods, and subject to levy on execution. (Turner v. Fendall, 1 Cranch., 117.)

This action is instituted to recover the possession of personal property, and the plaintiff swears that the package of bills are his goods. .

The thief who steals bank bills, finds that the law treats him as though he had stolen goods. If one converts the bank bills of another to his own use, an action will lie'as for the conversion of personal property. If one burns or throws into the sea the bank bills belonging tcf another, an action lies, and the amount of damage is the face of the bills if the bank be solvent. In the absence of all proof to the contrary, the law will presume that the bank notes are worth their nominal value.

We therefore conclude that jettisoned goods, carried on deck, stowed in the usual way, and according to the custom of the trade of a steamer navigating the Sound, are-entitled to contribution for general average loss.

That bank bills, so carried in a crate by an express company, for hire, are to be treated as other goods, and are bound to contribute when saved.

And that, in the absence of proof to the contrary, the value of the bills is the amount expressed upon their face, and contribution must be made proportionate to that value. And hence, that in this case, judgment should be entered for the defendants, with costs.

Hoffman, J.

The case is an interesting and a new one. We are indebted to the counsel on both sides for the care with which • it has been brought before us.

Gan bank bills be made to contribute in general average under any circumstances? Can those of the plaintiffs be made to contribute in this particular case ? Such are the questions to be solved. I shall consider, in the first place, the facts in this particular action, and the points raised upon them.

1st. The contract which was made between the plaintiffs, and the Adams’ Express Company in Baltimore, constituted the latter the agents of the plaintiffs, and made -the mode of transportation pursued, by that Company precisely the same, as to all obligations and rights, as if prescribed or sanctioned by themselves. Especially is this the case, when these agents pursued, in this instance, their ordinary method and means of transportation. The case of the N. J. Steam Nav. Co. v. The Merchants' Bank, (6 How. U. S. R., 344,) settles this point.

The cargo-which was jettisoned was on-deck; but was there according to the established custom of steamboats between New York and Allyn’s Point. It is true that, by the general maritime law, goods stowed upon the deck are not the subjects of general average when jettisoned. (Abb. on Shipping, 481, 8 ed., and Mr. Shee’s note; Emer., p. 492; Dodge v. Bartol, 5 Greenl., 286; Lenox v. United Ins. Co., 3 Johns. Cas., 178.)

But when the goods are transported coastwise in a steamboat; when the usage is uniform to carry all, or the bulk of the cargo on deck, the space under being apprppriated to the machinery and other purposes; and when that usage is so general that constructive notice of its prevalence may be inferred in ail, deck goods thrown over' are as much to be contributed for as goods in any other situation. The present case sufficiently falls within this rule.

I have examined with care the following authorities: The ordinance of Louis XIV, and the 421st and 229th articles of the Code of Commerce of France'; the exception to the general rule arising from a usage on a coasting voyage, stated by Valin, and the comments of Boulay Paty & Rocron upon it. (Valin, tom. 2, art. 12, p. 189; Boulay Paty, tom. 4, pp. 567-569; Rocron, tit. Avarie, art. 421; Gould v. Oliver, 4 Bing. N. C., 134; 2 Scott C. B., 241; 2 Man. & Gr., 208; Milward v. Hibbert, 3 Queen’s Bench R., 120; 2 Gale & Dav., 142; Harley v. Milward, 1 Jones & Cary, 224; Dodge v. Bartol, 5 Greenl., 286; and Hampton v. Brig Thaddeus, 4 Martin’s Lou. R., 582.) I think the rule I have stated is warranted by them. Such as appear to be hostile may be distinguished on satisfactory grounds.

The reasoning of Boulay Paty, upon the two sections of the Code of Commerce, (421 and 229,) appears to me conclusive; and, I observe, in the Journal de Palais, (sup., vol. 1, p. 152, Astor Library,) that a case was decided in the Court of Cassation in 1845, holding that goods carried coastwise on deck were to be contributed for. '

2d. The counsel of the defendants next insists that, under the arrangement between Adams & Co. and the owners of the steamboat, the bills in question paid no freight, and did not form any part of the cargo, and on that ground are exempt from liability.

But the fixed annual sum which Adams & Co. paid for the transportation of their crates was in the nature of freight, and the charge for transportation, paid by the plaintiffs, contributed' to the payment of that amount. In substance, these bills paid freight.

3d. The next and general question, whether bank bills are liable to contribute in general average, is,the material inquiry.

In the first place, we have the great principle of general average, that whatever is saved ought to bear a portion of the loss, of what has perished to procure the safety.

Although the Rhodian law, which was the basis of the Maritime Code of Rome, and is eulogized by Cicero for its wisdom, must be deemed to be lost in its integrity; yet there can "be no doubt that the compilation which bears its name is of great antiquity. The very writers who have- displaced its high claims, quote it as of an ancient date. (Emer. Pref., 32, and quotations passim; see Chief Justice Dube’s Lect. on Ins., vol. 1, pp. 24-46.)

By the rule of that Code, everything on board a vessel, even the baggage of passengers, their apparel, and ornaments, though worn upon their persons, was liable to contribute. The writers of the general civil law adopt this doctrine. They are quoted by Emerigon. (Chap. 12, § 42, Mer. ed., 492; Vinnius, p. 211.)

The Guidon de la Mer made everything liable, even what the passengers carried about them. (Chap. 5, art. 26.) Their persons were exempted. Duarenus, quoted by Emerigon, declares that it is the general rule that all which has been preserved and is susceptible of being valued, is to contribute to the jettison. In short, the rule of the civil law proper was, that nothing was exempt but provisions intended for consumption, and the persons of free passengers. The pride of the Roman dictated the latter exception, as the person of a. freeman was incapable of estimation.

Pothier treats the Code of Commerce, in exempting nothing expressly but the clothes of the crew, as leaving all else liable. (Tit. des Avaries, No. 125.) Boulay Paty would distinguish between clothes and jewelry on the person, and those in a trunk or elsewhere. (Tom. 4, p. 562.)

But it cannot be asserted that the civil law rule is now our law. “It is not every object of value which is liable for a contribution of average, but only such things as are termed Merces. Merces has never been held to extend to provisions, but includes only the cargo put on board for the purpose of commerce, and the practice shows that this has been the ■ understanding of all .times. Magens, Molloy, Beames, Stevens and other writers all expound the word Merces in this way. They concur in saying, that things of little weight, but of considerable value, must contribute, if they belong to the cargo, but not if they belong to the passengers.” “ The rule is, that all merchandise put on board for the purpose of traffic, is liable to be brought into contribution; and in merchandise is included all property of great value, unless attached to the persons of the passengers, but property so attached does not contribute.”

These are the positions of Best, Oh. J., and Park, J., in Brown v. Stapyleton. (4 Bing., 119.)

And in Peters v. Milligan, (cited in Park on Ins., 211,) it was held that gold, silver, jewels and precious stones contribute. (Abb. on Ship., 502; 2 Arn. on Ins., 919.)

Weskett on Insurance, (Tit. Contrib., Ho. 1,) says, that bank bills ought to contribute a part to make up a loss from jettison.

Mr. Phillips (vol. 2, p. 149, art. 1897,) refers to this authority, and observes: “ But as these are not so properly actual property as the evidence of demands, which evidence may be'supplied by other, in case of their being lost, if sufficient precautions are taken by-the holder to prove what notes they were; this circumstance distinguishes them from specie or other property, which is usually made to contribute.”

This is all the authority I have found directly to the point.

There is another general rule which may be invoked to assist us. Magens states, that what does not pay freight, does not pay average. (Yol. 1, p. 62.) This may be sometimes unjust, and probably is not an unexceptionable rule. Goods of the master, not paying freight, ought. to contribute. (Stevens, part 1, eh. 1, p. 52.)'

But the converse of the rule may perhaps be unexceptionable. "What does pay freight ought to contribute.

But the main argument- of the plaintiffs’ counsel remains. Hothing was saved in "saving the bills. Ho damage would have occurred to the plaintiffs had they been lost. They were not property, the destruction of which was irretrievable. They were evidences of debt, which debt could be established by other proof. It is substantially the view presented by Mr. Phillips.

But is this so? Was it nothing to save these bills from going to the bottom? According to the rule of the Supreme Court of * our State, as stated by Justice Marct, if a bank bill be lost to the owner, he cannot recover, but if destroyed, he may. (6 Wend., 378.) Yet that recovery depends upon his ability to prove destruction, ownership and identity. It is inevitable that some damage, delay and difficulty must in all cases arise to him. Proof must be given. From this he is saved by the preservation of the bills. The bank might be justified in demanding either delay, to ascertain whether efforts to recover the property would not be available, or indemnity. Nothing but an equity suit would, perhaps, then avail. (See Will. Eq. Jur., 52, 54.)

We have, in this case, bills of a bank carried as part of the cargo, paying what is in truth freight for the transportation, and exposed in the crate to as much risk of loss as any part of the cargo—certainly as much as any costly articles, such as laces, contained in the crate—I cannot but think contribution ought to be made. It is not necessary to say, and it does not inevitably result, that because the bills should contribute they would be the objects of contribution if sacrificed.

. The general rule undoubtedly is, that contribution and to be contributed for, are convertible obligations and rights; but this rule is not without exceptions. The clothes of sailors are exempt, and yet are to be paid for if cast overboard. Munitions of war and provisions appear to be governed by the same rule. (Emer., ch. 12, § 42; Mered. ed., 493, 494.) Perhaps there may exist a distinction in the case of bank bills. At any rate, upon a question so very new, I think it should be left for a decision when necessary.

The defendants are entitled to judgment.

Moncrief, J., concurred in ordering judgment for the defendants.

Judgment accordingly.