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    Bulkeley v. Smith and another.
    That the plaintiff in an action for a tort, when the jury have improperly severed the damages, may enter his judgment, against all the defendants for the largest damages found against any one of them, is an inequitable doctrine which the Court," unless constrained by the authorities, would refuse to follow.
    Whether the authorities in support of the doctrine are conclusive the Court declined to consider, being satisfied upon other grounds that the judgment appealed from was erroneous.
    To maintain an action for a malicious prosecution, the plaintiff is bound to prove the entire want of a prohable cause for the accusation, and the actual malice of the defendant in preferring it—that is, malice in fact as distinguished from malice in law.
    Malice, therefore, in all eases, when the cause turns upon its proof, is a question of fact to be decided by the jury.
    But probable cause is, in all cases, a question of law, in relation to which the judge who tries the cause, is bound to express a positive opinion.
    It is no more a mixed question of law and fact than every other question of law, which a judge in the course of a trial is required to determine.
    If the judge who tries the cause is of opinion that the facts admitted or clearly established, are not sufficient to prove a want of probable cause, he must either nonsuit the plaintiff, or direct the jury to find a verdict for the defendant.
    (Before Duer, Paine, and Emmet, J.J.)
    May 10, 11, 12;
    July 2, 1853.
    But if the facts, upon which in his judgment the question depends, upon the evidence are doubtful, he must instruct the jury, that if they shall be found by them in a certain manner, they do or do not amount to a want of probable cause.
    If, instead of such a direction, he leaves it to the jury to determine, not. only whether the facts alleged by the plaintiff are true, but whether, if true, they prove a want of probable cause, he commits a fatal error.
    The judge, in the case under hearing, instructed the jury to consider and determine whether the facts and circumstances known to the defendants were reasonable grounds for their believing that the charge which they had made against the plaintiff was true.

      Seld, that this instruction was erroneous, as necessarily involving a submission to the jury of the question of probable cause, the existence of reasonable grounds for believing the charge preferred to be true and of a probable cause for making it, being only different forms of expressing the same truth.
    When the existence of facts constituting a probable cause is admitted or established, the presumption of law is that the defendant entertained and acted upon the belief which the facts thus known to him justified him in holding.

      Sence, unless this presumption is repelled by proof on the part of the plaintiff, the question of the actual belief of the defendant ought not to be submitted to the jury.
    The charge against the plaintiff was that upon the trial of a cause in which he was examined as a witness, and was a material witness—he had sworn falsely that he. had no interest in the event of the suit. If such was his testimony, it was clearly shown that there was probable cause for believing it to be false; but the main controversy upon the trial was whether he had in fact sworn as the defendants in making the charge had alleged.

      Seld, that in order to justify the defendants, it was not necessary for them to prove that the plaintiff had sworn in terms that he had no interest in the event of the suit, but that their defence was established, if it appeared that he had sworn in substance, although not in words, that he had no interest that could disqualify him as a witness.

      Seld further, that it was proved by the plaintiff’s own witnesses that such was the substance and necessary result of his testimony.

      Seld, that the existence of probable cause was therefore affirmatively shown, and consequently that the plaintiff ought to have been nonsuited, or the jury have been directed to find a verdict for the defendants.

      Seld further, that had the true and only issue been whether the language of the plaintiff, when examined as a witness, was exactly such as the defendants had represented, so great was the preponderance of the testimony to establish the fact, that upon that ground alone, a new trial must have been granted.
    Judgment reversed, and new trial granted; costs to abide the event.
    Appeal by the defendants, Smith & Brush, from a judgment and order at special term, denying to them a new trial upon exceptions taken on the trial, and also upon the ground that the verdict was against evidence.
    The action is for a malicious prosecution, and in its original form was not only against the present defendants, Smith & Brush, but also against Eugene Keteltas & Wm. A. Keteltas, and was first tried before Mr. Justice Vanderpoel and a jury in December, 1849, when the jury found a verdict against Smith, Brush & E. Keteltas for $3,750, and under'the direction of the judge acquitted Wm. A. Keteltas. A motion for a new trial was then made and denied .(Bulkeley v. Keteltas, 4 Sand. S. C. R. 450). Upon an appeal, however, to the Court of Appeals, the judgment of this court was reversed, upon the distinct ground that the judge upon the trial, contrary to the request of the counsel for the defendants, had improperly submitted to the jury the question whether the plaintiff had shown a want of probable cause for the prosecution,'and with a clear intimation of opinion, that a probable cause had in fact been established. The case is now reported (2 Selden, 384).
    In consequence of this reversal, the cause was again tried before the Chief Justice and a jury in October, 1852, when by the direction of the judge the defendant, Keteltas, was acquitted.
    The following are the material facts as given in evidence upon this trial:
    Early in the month of August, 1848, the defendant, C. B. Smith, accompanied by the defendant Brush, upon a complaint in writing, applied to J. Lothrop, Esq., one of the police justices of the city, for a warrant against the plaintiff upon a charge of perjury, and exhibited in support of the charge his own and Brush’s affidavits, also the affidavits of Wm. H. Bogardus and Wm. A. Keteltas. All these affidavits concurred in stating that on a recent trial of a cause in the Common Pleas, in which one Charles Bradley was plaintiff and Eugene Keteltas was defendant, the plaintiff Bulkeley, who was the attorney for Bradley, was sworn and examined as a witness, and testified that he had informed Bradley at the commencement of the suit that he would not charge him anything for his services, and that he did not intend to charge him even for attorney’s fees; that.he was not to receive any compensation for his services, and that he had no interest in the event of the suit. The trial in the Common Pleas was on the 7th of June, 1848; the verdict was rendered on the 8th—the verdict was in favor of Bradley for $100—Smith and Brush both swore that the testimony of the plaintiff was so material that without it Bradley would not, in their opinion, have obtained a verdict. Smith also swore that Bulkeley had testified on the trial, that Bradley was then absent and had been so for several months, and that he had received no letters from him.
    To prove that the testimony so given was false, Smith placed in the hands of the magistrate the following papers, which were proved to be in the handwriting of the plaintiff.
    “ Sir—Take notice, that my costs and counsel fees in this case have not been paid me by my client, and you are required not to pay the amount of the judgment recovered by the plaintiff herein, or any part thereof, to the plaintiff, until such costs and fees are paid me; also that I am specially authorized by the plaintiff to receive the ain’t of the judgment and costs recovered by him in this suit, and that any payment of the same to, or settlement or compromise with any person but myself, in any matter relating to the suit, will be wholly void. “Yours, <&c.,
    “ L. E. Bulkeley.
    “ To Eugene Keteltas and his attorney,
    “H. Y., June 8th, 1848.”
    “Hr. Brush presented your proposal to compromise, my answer is that by sending me to-day $225 all further trouble in this matter can be saved, and satisfaction of judgment be given without expense of execution, &c.
    “ (Endorsed) < To C. B. Smith, Esq.’ ”
    “ Hr. Smith can save himself the. trouble of writing to Hr. Gumming as Hr. Bradley is not with him, and as I have an irrevocable power of attorney from Bradley to settle the suit and receive all monies that may be 'coming due from it. I give you this notice that you may fully understand that any money yon may pay on the judgment or verdict to, or any settlement you may make, in the case of Bradley v. Keteltas, with any person except me will not he considered any payment of said verdict, having had notice of my power of att’y, and I shall hold your client responsible for every dollar of said verdict not paid to me in person. _ June 9th, 1848.
    “Yours, &c., “L. E. Bulkelet.
    “ (Endorsed) To 0. B. Smith, Esq.”
    These affidavits and papers were produced, and read in evidence by the plaintiff; and the Chief Justice decided that they were evidence in favor of the defendants—the same as if the parties making the affidavits as witnesses in the cause had testified to the same facts.
    The plaintiff was brought before the magistrate upon a warrant, but, after a hearing of the parties by their counsel, and the lapse of some weeks, the complaint was finally dismissed. The defendant, Smith, then laid the same affidavits and papers before the District Attorney, who sent them to the Grand Jury as, in his opinion, establishing, pri/má, faeie, the charge of perjury. The Grand Jury found a bill against the plaintiff, charging him with perjury in having sworn falsely on the trial in the Common Pleas that he had no interest in the event of the suit. He was tried on this indictment before Mr. Recorder Scott, who, when the testimony on the part of the prosecution was closed, directed his acquittal, upon the ground that it had not been proved that he had any interest in the event of the suit, which disqualified him as a witness.
    The evidence upon the present trial as to the testimony actually given by the plaintiff on the trial in the Common Pleas, to some extent was contradictory. Three or four witnesses were examined in relation to it upon the part of the plaintiff, and ten or twelve on the part of the defendants. The substance of the testimony is stated in the opinion of the Court.
    Bradley, the plaintiff in the suit in the Common Pleas, who was examined on the part of the plaintiff, proved that he was absent when that action was tried; but that, after his return, on the 13th June, 1848, he had executed to the plaintiff an assignment of all his title and interest in the verdict and judgment; and that this was the only assignment he ever executed.
    When the testimony on the part of the defendants was closed, the counsel for the defendant moved for a dismissal of the complaint. The motion was denied, and the counsel excepted.
    The counsel for the defendants made various special requests as to the charge to be given to the jury; but these, as their nature sufficiently appears from the points argued on the appeal, are here omitted.
    The judge, in charging the jury, submitted to them on the whole evidence to find whether the defendant, Brush, was a party in instituting the prosecution against the plaintiff, instructing them that they were at liberty to find for one of the defendants and against the other, and to find separate damages against each.
    The judge further instructed the jury, that if they should find that the plaintiff, in the action in the Court of Common Pleas, swore that he had no interest in the event of that suit, or if the defendants had reasonable grounds for believing, and did believe that he so swore, then, upon the facts proved in the case, and not disputed, and which were known to the defendants, the law determines that a want of probable cause for instituting a prosecution against the plaintiff is not shown, and the defendants are entitled to the verdict.
    The judge further instructed the jury that proof of actual malice on the part of the defendants is not necessary, provided want of probable cause is established, for the jury have a right to infer malice from a want of probable cause; and, with this instruction, left the evidence in the case to the jury.
    The court declined to charge according to the requests of the parties otherwise than as above stated, and the defendants excepted to such refusal, and the court, with these instructions, left the case to the jury.
    The jury retired, and brought in a verdict for the plaintiff assessing the damages of $2,500 as against Smith, and $500 i against Brush.
    The following is the form of the judgment from which the appeal was taken.

      “ This cause being at issue, and having been, by order of "the Court of Appeals, sent down for a new trial, costs to abide the event, and a trial had, upon which the court directed the acquittal of Eugene Eeteltas, one of the defendants, and thereupon a verdict was found for the plaintiff for the sum. of twenty-five hundred dollars damages against the defendant, C. B. Smith, and for five hundred dollars damages against the defendant, James H. Brush.

      “ And whereas the said plaintiff elects to recover the said sum of $2,500 damages so found by the jury against both defendants, and doth hereby consent that a remittitur as to the $500 damages assessed by the jury against the defendant, James H. Brush, be entered in this action.”
    “ ífow, on a motion of Lucius E. Bulkeley, plaintiff in person, it is hereby ordered and adjudged that a remittitur be entered as to the said $500 damages, assessed against the defendant, James H. Brush, and that the plaintiff, Lucius E. Bulkeley, recover of the defendants, C. Bainbridge Smith and James H. Brush, the said sum of twenty-five hundred dollars damages by the jury aforesaid, assessed, with interest on said verdict from the time the said verdict was rendered, being fourteen 58-100 dollars, together with an allowance of one hundred dollars as by order of the court, pursuant to the statute, besides the sum of five hundred and thirty-nine dollars and ninety-seven cents costs; in all, the sum of three thousand one hundred and fifty-four dollars and fifty-five cents, and that plaintiff have executions against the said defendants therefor.
    “B. Gr. Campbell, Clerk.”

      C. B. Smith

    made and argued the following points on his own behalf, and that of his co-defendant.
    1. The plaintiff having entered judgment against both defendants for the larger sum, when the verdict of the jury was for that amount against one, only renders the judgment erroneous, and it should be reversed on that ground. (Salmon v. Smith, 1 Saund. R. 207, n. 2; Hill v. Goodchild, 5 Burr. 2790: Mitchell v. Millbank,. 6 T. R. 199; Brown v. Allen, 4 Esp. N. C. 158; Wakely v. Hart, 6 Bin. R. 316; Bostwick v. Lewis, 1 Day R. 34; Crawford v. Morris, 5 Grat. R. 90; Cro. El. 11 Co. 6a. 7a.; Carth. 19, Bull. N. P. 15; 1 Wil. 30; Cro. Car. 192.) 1. Whatever may have been the practice in former times where the jury have severed, to enter judgment against both for the greater damages, it has never been adopted in this State. (Livingston v. Bishop, 1 J. R. 289; Bohun v. Taylor, 6 Cow. R. 313; Holly v. Mix, 3 Wend. R. 350.) 2. Before the judgment was perfected, the plaintiff might have cured the verdict, by taking judgment de melioribus da/mnis against one, and entering a nolle proseqtii as to the other. (Id.) The judgment having been entered against the defendants jointly, it is entire, and from which they appeal; if it be erroneous as to either, it must be reversed as to both. (Sheldon v. Quinlen, 5 Hill R. 441; Harman v. Brotherson, 1 Den. R. 537; Van Bokkelin v. Ingersoll, 5 Wend. R. 341; Van Schoonhoven v. Comstock, 7 Den. R. 655; Bac. Abr. Error, M. I.)
    II. There was reasonable and probable cause for the prosecution. Probable cause is defined to be a reasonable ground of suspicion, supported by circumstances, sufficient to warrant a cautious man in the belief that the person is guilty of the offence charged, and probable cause in all cases is a question of law. (Johnstone v. Sutton, 1 T. R. 545; Skinner v. Gunter, 1 Saund. R. 228; Baldwin v. Weed, 17 Wend. R. 227; Swaim v. Stafford, 4 Wash. C. C. R. 79; Davis v. Hardy, 6 B. & C. R. 225.) 1. It seems conceded, that if the plaintiff did in fact testify in the H. Y. Common Pleas suit, “he was not interested in the event thereof,” or that the defendants believed he so testified, probable cause is established. 2. There were ten witnesses beside the defendants, who testified to the plaintiff having so sworn, and the court erred in submitting the question of belief to the jury. It is not what a prosecutor believed, but whether the facts and circumstances were sufficient to afford a ground for belief, and that is for the court to determine. ' (Turner v. Ambler, 10 Q. R. 252; Beale v. Robertson, 7 Iredell R. 284; Ewing v. Sandford, 21 Ala. 163; Foshay v. Ferguson, 2 Den. R. 619.) 3. If the fact of ten witnesses testifying to the actual commission of an offence, be not enough to hold there was probable cause for making the complaint, then it follows, that it requires as much proof, if not more, to suspect an offence has been committed, as it does to convict the prisoner of the crime itself.
    III. It was incumbent upon the plaintiff to establish a want of probable cause. This must be substantially and satisfactorily proved, and cannot be implied. The grounds of the action are, on the plaintiff’s side, innocence—on the defendants’, malice ; and how can it be said that the complaint was without probable cause, or how can he establish his innocence, when he can only escape from the crime itself, by asserting his own notices to be false '? (Johnstone v. Sutton, 1T. R. 544; M'Cormick v. Sissons, 7 Cow. R. 715; Burlinghame v. Burlinghame, 8 id. 141; Murray v. Long, 1 Wend. R. 142 (per Holt, C. J. Mod. 208); Wilmarth v. Mountford, 4 Wash. C. C. R. 79; Eager v. Dyott, 5 C. & P. R. 4.)
    IY. The court erred in charging the jury upon the question of malice. The jury were instructed that proof of actual malice was not necessary, provided want of probable cause was established ; that they had the right to infer malice from the want of probable cause. 1. True, the question of malice is for the jury, but to sustain the averment, the charge must be shown to have been wilfully false. (Cohen v. Morgan, 6 D. & R. 8.) 2. But the court did not, as requested, instruct the jury what constituted malice. It is not spite or enmity. (Id. 2 Greenleaf on Ev., p. 367; 3 Stepen, 2278; Mitchell v. Jenkins, 5 Barn. & Ad. 588; Ray v. Law, 1 Pet. C. C. R. 207.) From the want of probable cause, malice may be implied (1 T. R. 545); but not necessarily so (Wiggin v. Coffin, 3 Story R. 1; Bell v. Pearoy, 5 Iredell R. 83); and in leaving to the jury that question, under the instructions of the judge, it was substantially submitting to them the question of probable cause.

      James T. Brady

    argued the following points on the part of the plaintiff.
    I. There was not any reasonable or probable cause for the institution of any complaint against the plaintiff for perjury. If it were believed at any time, of which there is no evidence, after the complaint was dismissed by the police magistrate for want of proof, such belief must have been ended. 1. By persisting in sending to the grand jury, after the dismissal of the complaint, and prosecuting it in the sessions, the defendants made themselves responsible under any state of facts, unless they had some new evidence to support their second accusation. In this case' they had no new facts. (Farris v. Starke, 3 B. Monroe 6; Hall v. Hawkins, 5 Humpf. 359; Stone v. Stevens, 12 Conn. 231; Stone v. Crocker, 24 Pick. 87; Wells v. Noyes, 12 id. 324; Cabeness v. Martin, 3 Dev. 454.) 2. Even though it were assumed that the defendants understood tlie plaintiff to have testified that he had no interest in the cause, they bad no evidence that the statement was untrue, nor any facts upon which they could maintain it. 3. From their own papers and proofs, the only evidence they pretend to have of the plaintiff (if he had sworn that he was not interested) was not true, consisted of his unsworn declarations, and not of any facts showing such alleged falsehood. They were all lawyers, and knew that such declarations afforded no ground for a prosecution for perjury. (1 Greenl. Ev. § 258.) 4. The judge charged the jury, that even if defendants believed plaintiff swore ‘‘ that he had no interest,” they must find a verdict for them. In this, we say, the judge gave them more than the law warrants, for mere belief is not sufficient.
    II. The plaintiff had the right to remit, as to the lesser damages, and enter judgment against both defendants for the greater damages. (Johns v. Dodsworth, Cro. Car. 192; Halsey v. Woodruff, 9 Pick. R. 555; 7 Vin. Abr., p. 303.) 1, The plaintiff may, in such a case, by leave of the court, enter nol. pros, as to one defendant, and judgment for damages against the other. 2. The case in 3 Wend., 350, is one of the latter class. There it was doubtful whether the evidence against Clute, one of the defendants, was such as that he ought not to have been discharged ; and the plaintiff obtained leave of the court to enter nol. pros, as to him, and took judgment against Mix, the other defendant. 3. But neither in this case, nor in any other, is there anything incompatible with the right of the plaintiff, as laid down in Halsey v. Woodruff.

   By the Court. Duer, J.

Whether the judgmént, which, in this case, has been rendered against both the defendants for the heavy damages which were found by the jury only against one of them, is erroneous on its face, we shall not at this time attempt to determine. We own, that hitherto we have not been able to discern the equity or good sense of the doctrine, that the plaintiff in an action for a tort, when the jury have improperly severed the damages, may enter his judgment against all the defendants for the largest damages that are given; and, as at present advised, if the conflict of the authorities is such as to allow a liberty of choice, we should certainly refuse to follow it. (Vide 1 Duer S. C. R., pp. 643-704.) It is possible that the authorities in support of the doctrine may be as conclusive as they have been represented; but whether they are so or not we omit to inquire, since, admitting the fact, there are other grounds upon which we are satisfied that not only the judgment, hut the verdict upon which it was founded, must be set aside. In other words, that a new trial must be ordered.

In order to maintain a suit for a malicious prosecution, the plaintiff is bound to prove the entire want of a prohable cause for the accusation, and the actual malice of the -defendant in preferring it. Malice is a question of fact, which, when the cause turns upon it, must be decided by the jury, but probable cause is in all cases a question of law, which the court alone is competent to determine, and in relation to which the judge who tries the cause is bound to express a positive opinion. It is true, it is said, by many of the text writers, that probable cause is a mixed question of law and factand, misled by this statement, it not unfrequently happens that judges content themselves with defining a probable cause,-leaving the jury to decide whether the facts of the case correspond with the definition, which is, in effect, leaving the whole matter to their determination. It is evident, however, upon reflection, that the deceptive phrase, “ a mixed question of law and fact,” is either wholly unmeaning, or is intelligible and true only in a sense which renders it just as applicable to every question of law that a judge in the progress of a trial can be required to determine. Every rule of law depends for its application upon a given state of facts, and when the facts upon which it depends are controverted and doubtful, they must of necessity be ascertained by the verdict of the jury ; but whether the facts are admitted or disputed, it is equally the duty of the judge to state explicitly to the jury the rule of law arising upon them, by which their verdict ought to be controlled—the only difference being, that, in the first case, the direction to the jury is positive, in the second, hypothetical. Thus, in an action for a malicious prosecution, if the judge is of opinion that the facts admitted or clearly established are not sufficient to prove a want of probable cause, he must either nonsuit the plaintiff, or instruct the jury to find their verdict for the defendant; but if the facts upon which, in his judgment, the question depends are rendered doubtful by the evidence, he must instruct the jury that if the facts shall be found by them in a certain manner, they do or do not amount, as the case may be, to a want of probable cause, and consequently will, or will not, entitle the plaintiff to the verdict which he seeks. If, instead of such a direction, he leaves it to the jury to determine not only whether the facts alleged by the plaintiff are true, but whether, it* true, they prove a want of probable cause, he abjures his own functions, and commits a fatal error.

We deem it unnecessary to refer to any cases in the English reports, or in our own, in support of these positions, since, could we have been justified in considering the law as previously doubtful, we are bound to regard it as now settled by the recent decisión of the court of appeals reversing the judgment of this court, and ordering a new trial, in the very case that is now before us. The ground of this reversal was, that the judge told the jury that it was their province to determine whether the facts and circumstances in evidence did or did not establish the want of probable cause, thus leaving the whole matter to their determination, instead of expressing his own opinion as to the conclusion of law to be drawn from the facts, as alleged by the plaintiff, should the jury believe them to be proved.

Round as we are by this decision, we are constrained to say that the charge of the presiding judge upon the last trial, was just as erroneous as that which led to the reversal of our former judgment, as from the terms in which it was expressed, it necessarily involved the submission to the jury of the question of probable cause, and was not limited to the facts upon which the question depended. He instructed the jury, that they were to consider and determine whether the facts and circumstances known to the defendants were reasonable grounds for their believing that the charge which they made against the plaintiff was true, and we are unable to make a distinction between the existence or non-existence of reasonable grounds of belief, and the existence or want of a probable cause. There is a difference in the form of expression, but none in the meaning, since the existence of reasonable grounds for believing a charge to be true, is, in reality, nothing more than a legal definition of a probable cause for making it. In deciding that there-were no reasonable grounds of belief, a jury, of necessity, decides that there was a want of probablti cause. The charge of the judge, therefore, amounted to no more than the definition which the law gives of probable cause, and permitted the jury, in the exercise of their own judgment, to apply the definition to the facts of the case—that is, permitted them to determine whether the facts which they might consider to be proved, did or did not amount to a want of probable cause. It was because this question upon the first trial was decided by the jury, and not by the judge, that our former judgment was reversed.

The judge, in the charge before us, also submitted to the jury, as a material question, whether the defendants themselves believed the charge against the plaintiff to be true when they preferred it; and it is not impossible, nor improbable, that it was npon the ground of the disbelief of the defendants that the jury founded their verdict. We apprehend, however, that when in an action for a malicious prosecution the existence of facts constituting a probable cause is admitted or established, the presumption of law is, that the defendant entertained and acted upon the belief which the circumstances within his knowledge justified him in holding; nor have we found a single case in which, under these circumstances, the question of the actual belief of the defendant has been submitted to the decision of the jury. We do not say that cases may not arise in which this submission of the question might be eminently proper, but we are clearly of opinion that this can only happen when the presumption of law, to which we have adverted, is .met and affirmative on the of the plaintiff. (Vide Carpenter v. Shelden, 5 Sand. 97, Nos. 5 and 6.)

In the present case, if the defendants did not believe the charge which they made against the plaintiff, they were guilty, in the affidavits upon which the charge was founded, of wilful and deliberate perjury; and, looking at all the evidence in the case, it seems to us it would be monstrous to say that the jury could be justified in drawing such a conclusion, and if not warranted to draw the conclusion, the question involving it ought not to have been submitted to their determination.

Eight or ten of the witnesses examined on the trial swore substantially to the same facts as the defendants.

They were, all of them, disinterested and unimpeached, and it has not been pretended that they did not sincerely believe that the facts to which they swore had actually occurred. They may, all of them, have been mistaken ; but it appears to us, that a jury could no more be justified in imputing to the defendant the guilt of intentional falsehood, than to the witnesses by whom they "were sustained. If, therefore, the verdict of the jury, as was asserted upon the argument, proceeded upon this supposition, their verdict, even could we admit that the question was properly submitted to them, we are bound to say, is unsustained by the evidence; and upon that ground alone, were there no other, ought to be set aside.

The observations that have now been made are sufficient to justify us in granting a new trial, but they do not cover all the questions that have been raised, and which, in order that this protracted litigation may be closed, it seems necessary to determine. We have, therefore, felt it° our duty to examine, with care, all the evidence that was given upon the trial, and we now state, as the result of the examination, our full conviction, not only that the plaintiff failed to prove, as he was bound to prove, the want of a probable cause; but that, confining ourselves to undisputed facts, the existence of a probable cause was affirmatively shown. He might, therefore, have been rightfully nonsuited, or the jury have been positively instructed to find a verdict in favor of the defendants.

The charge against the plaintiff was, that when examined as a witness in the suit in the common pleas, he had falsely sworn that he had no interest in the event of the suit; and the material inquiry is, whether the defendants were justified in believing that such was the testimony that he actually gave; that if he gave this testimony, his subsequent acts and declarations justified them in believing it to be false, was in effect decided by the chief justice upon the trial; and, judging from the opinion of Mr. Justice Gridley, with which we have been furnished, was plainly meant to be decided by the court of appeals.

Mow the truth of the proposition seems to us too manifest to require an argúment, that in order to justify the defendants it was not necessary for them to prove that the plaintiff had sworn, in terms, that he had no interest in 'the event of the suit in which he was examined, or that the question whether he was so interested or not, was directly put to him. If he was cross-examined for the purpose of showing that he had an interest beyond that which belonged to him as the attorney of the plaintiff, and which rendered him incompetent as a witness; and if, when thus examined, he swore to facts that, if true, conclusively proved that he had no interest that could affect his testimony, the existence of a probable cause for the charge subsequently made against him was, in our judgment, conclusively established. It was conclusively established, if he swore in substance, although not in words, that he had no interest that could disqualify him as a witness.

Mow, when we read, with any attention, the testimony of his own witnesses, who were present at his examination in the common pleas, it is evident that the object of his cross-examination, and the purport of the testimony which he then gave, were exactly such as have been stated. By the confession of those witnesses, he did swear in substance, although not in words, that he had no interest in the event of the suit. Those witnesses, Messrs. Sandford, McClelland, and Russell, it is true, unite in saying that the plaintiff was not asked at all whether he was interested in the event of the suit, and consequently could not have replied as the defendants had sworn, that he had no such interest; but they also unite in saying that he was asked whether there was any agreement between him and his client, and that in his reply he positively denied that any such agreement existed. We think it cannot be doubted that the object of this question was to ascertain whether he had any interest beyond that which belonged to him as the attorney (and which the court had already decided was not sufficient to disqualify him), that by proving his incompetency, would compel the court to reject his testimony, since such an interest, if it existed, could only be founded on or derived from a positive agreement between him and the plaintiff in the suit; and it is undeniable that the plaintiff affirmed, by a necessary implication, that he had no interest in the event of the suit, by denying the existence of any agreement from which the interest could have been derived.

Nor is this all: that such was understood at the time to be the object of the question, and such the effect of the reply, is distinctly stated by the witness, Eussell, who says that the question was asked, to find out whether the verdict was to go to the plaintiff’ or the lawyer,” and that he understood from the reply that it was to go to the plaintiff, Bradley,, alone. The witness, therefore, understood the plaintiff as swearing that he would have no interest in the verdict he was endeavoring to obtain; and this, under the circumstances, was precisely equivalent to saying that he had then no interest in the event of the suit.

Let us now suppose that the defendants, in the affidavits which they laid before the police magistrate, had stated the testimony of the plaintiff exactly as it has been stated by the witnesses we have named, and, in order to prove the testimony to be false, had then produced the letter which he addressed to the defendant, Smith, on the day immediately following the verdict, and in which, by force of a power of attorney from his client—a document which, if it existed at all, must have been in his possession when he gave his testimony—he claimed an exclusive title to demand payment of the judgment, and in truth, by stating the power to be irrevocable, claimed to be its exclusive owner, could it then have entered into the mind of any one to imagine that the present action could be maintained? Is it not plain that the plaintiff, under these circumstances, so far from having a right to say that there was-no probable cause for the charge of perjury, could only have escaped from the imputation, by showing that the testimony which he gave was true, and the assertions in his letter wholly false. That the defendants believed these assertions in preference to his testimony, certainly afforded to him no just cause of complaint, since the letter was evidently written with the intent that the defendants, Smith and Keteltas, should believe its contents to be true, and in the expectation that this belief would influence their conduct. And we assent entirely to the position of Mr. Justice Washington, that when it appears, in an action for a malicious prosecution, that the plaintiff, by his own folly or fraud, exposed himself to a well grounded suspicion of guilt, this alone is sufficient evidence of probable cause. (Wilmarth v. Mountford, 4 Wash. C. C. R., p. 82.)

The ease, as it now stands, in our judgment, rests substantially upon the same grounds, and is governed exactly by the same considerations, as if the affidavits of the defendants had been made in the form that has been stated; for the supposition that the defendants could only meet the allegation of a want of probable cause, by showing that the plaintiff, when examined in the Common Pleas, had sworn in express words, that he had no interest in the event of the suit, we cannot at all hesitate to reject. We have already said that the existence of a probable cause was established, by showing that the intent and the result of his testimony was to convince the court and jury that he had no interest in the event of the suit that could lead to the rejection of his evidence; and this, we have seen, his own witnesses have proved.

Finally, had the true and sole issue been, whether the testimony of the plaintiff was given in the very words that are found in the affidavits of the defendants, we should still have felt it our duty to set aside the verdict that was rendered.

There is a great preponderance of unimpeached and unsuspected testimony, that the language of the plaintiff was exactly such as the defendants represented, and such are the doubts necessarily arising upon the whole evidence, that even had the question been such, as we have supposed, the presiding judge, in our opinion, would have been fully justified in telling the jury that the plaintiff had failed to establish, by the necessary proof, the want of a probable cause, and that .the defendants were consequently entitled to the verdict. Since the great leading case of Johnstone v. Sutton (Term. R. 544), the law is settled, that the essential ground, in the language of Lord Mansfield, of the action for a malicious prosecution, is the want of probable cause, and that, in all cases, this must be substantially and expressly proved. It follows that when the evidence is doubtful, it is in favor of the defendant that the doubt must be determined.

It is not to be understood that in granting a new trial, we mean to express any approbation of the conduct of the defendants, and more especially of the defendant, Smith. The jury may well have thought that in persisting, as he did, in the prosecution of the plaintiff, he was actuated not at all by a sense of public duty, but solely by motives of private revenge. Had the sole question been, whether the imputation of express malice was justified by the evidence, we could not have disturbed the verdict that was given. It is true, that from, the entire want of probable cause, malice may be inferred, but the converse of the proposition is by no means true, that where express malice is proved, the want of probable cause may be implied. Still less is it true, that damages' may be given to punish the malice, even when the existence of probable cause is fully established. It is into this' error, however, that the jury appears to have fallen.

Verdict set aside, and a new trial ordered, with costs to abide the event.


author: By the Court. Emmet, J.

text:
    Kirtland v. Wanzer and others.
    The certificate of a notary at New Orleans relative to the demand of payment and notice of dishonor of a promissory note payable in that city, although legal proof of the facts by a statute of Louisiana, cannot be read in evidence in the courts of this state.
    Although in many cases a foreign law must be followed, as a rule of final decision, there are none in which it can be permitted to set aside our own rules of evidence.
    It is only in relation to foreign bills of exchange that the protest of a foreign notary can be read in evidence, and a promissory note is not converted into a bill of exchange by being made payable in a foreign place.
    (Before Duer, Paine, and Emmet, J. J.)
    May 17;
    June 25, 1853.
    The provisions of our own statute upon this subject apply only to protests made within this state by our own notaries.
    Verdict set aside. Hew trial ordered.
    This was an action by the plaintiff as endorsee against the defendants as first and second endorsers of two promissory notes made by McConnell & Brothers, and payable 12 months after date to the order of Wanzer, Minor & Co., at the office of Rich. McConnell, Esq., in New Orleans.
    .The defendants, in their answer, denied that the notes had been duly presented for payment or duly protested, and also set up new matter as a defence which it is unnecessary to notice, as it was abandoned on the trial.
    This cause came on to be tried, in its order, on the twenty-seventh day of January, one thousand eight hundred and fifty-three, before his Honor Justice Campbell, and a jury duly empanneled; and the plaintiff, to maintain the issue on his part, read in evidence from the Statutes of Louisiana, vol. 1st, page 93, a Statute of Louisiana, entitled an Act concerning Protests of Bills of Exchange and Promissory Notes, and Notices to be given to Drawers and Endorsers, in the following words:
    “ Be it enacted by the Senate and House of Representatives of the State of Louisiana, in General Assembly convened: That the notaries and parish judges shall keep a separate book, in which they shall transcribe and record, by order of date, all the protests by them made, with mention of the notices which they shall have given of the same to the drawers or endorsers thereof, together with the names of the said drawers or endorsers, the date of the said notices, and the manner in which they were served or forwarded to the said drawers or endorsers; which declaration, duly recorded under the signature of the said notary public or parish, judge, and two witnesses, shall be considered and received, in all courts of this State, as a legal proof of the said notices. All notaries, or persons acting as such, are authorized, in their protests of bills of exchange, promissory notes, or orders for the payment of money, to make mention of the demand made upon the drawer, acceptor, or person on whom such order or hill of exchange is drawn or given, and of the manner and circumstances of such demand, and by certificate added to such protest, to state the manner in which any notices of protest to drawers, endorsers, or other persons interested, were served or forwarded; and whenever they shall have so done, a certified copy of such protest and certificate shall be evidence of all matters therein stated.
    “Whenever such drawer, acceptor,' endorser or others, shall not reside in the town or city where protest shall be made, then, and in such case, it shall be the duty of such notaries, or others acting as such, to put into the nearest post-office where a protest is made, a notice of such protest to such drawer, acceptor, endorser or others, addressed to them at their domicil, or usual place of residence.” Plaintiff’s counsel further read in evidence from volume 1st, page 61, of “Reports of Oases argued and determined in the Supreme Court of Louisiana,” by Merritt M. Robinson.
    The plaintiff’s counsel then read in evidence the notes, and two certificates of protests of the said notes.
    Which evidence was objected to, as inadmissible, on the ground that they purported to be certificates of a foreign notary, and were without authentication, and insufficient as proof of either presentment, protest, or notice of protest of said notes.
    The Court overruled the objections and admitted the, evidence as follows:—
    “$577 iT¡, “ New York, April 5, 1851.
    “ Twelve months after date, we promise to pay to the order of Wanzer, Minor & Co., five hundred and seventy-seven dollars, value received, payable at the office of Richd. McConnell, New Orleans, La.
    “ McConnell & Bro.,
    “ Memphis, Term.

    endorsed :
    “ Pay Brown, Johnston & Co., or order.
    “ Wanzer, Minor & Co., New York.
    “ Cromwell, Haight & Co., New York.
    “ Brown, Johnston & Co.”'

      “ United States of America, State of Louisiana:

    “ By this public instrument of protest be it known, that on this eighth day of April, in the year one thousand eight hundred and fifty-two, at the request of Messrs. Brown, Johnston <& Co., holders of the original nóte whereof a true copy is on the reverse hereof written, I, John Claiborne, a notary public in and for the city and parish of New Orleans, State of Louisiana aforesaid, duly commissioned and sworn, after inquiry of several persons in this city, for the office of Richard McConnell, learned that Thomas H. Jackson, of this city, was his agent here, and upon repairing to his store to demand payment of said note, I was by him informed that he knew that Mr. McConnell was now in the State of Mississippi, and had no office in this city, and that although he had occasionally remitted to said Jackson funds for the payment of debts, he had not remitted any for the payment of said note.
    “ Whereupon I, the said Rotary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest as well against the drawer or maker of the said note as against all others whom it doth or may concern, for all exchange, re-exchange, damages, costs, charges and interest, suffered or to be suffered for want of payment of the said note.
    “ Thus done and protested in the presence of Edmond Elorian Mains and James Claiborne, witnesses. Original signed, E. Elorian Mains, James Claiborne, John Claiborne, Rot. Pub.
    “ In testimony whereof I grant these presents under my signature and the impress of my seal of office, at the city of New Orleans, on the day and year first above written.
    [l. s.] “John Glaibobne,
    “ Nota/ry Public.”

    “ New Yobk, April 5, 1851.
    “ $sn Tvv

      “ Twelve months after date we promise to pay to the order of Wanzer, Minor & Co., five hundred and seventy-seven /¿l dollars, value received. Payable at the office of Richard McConnell, New Orleans, La.
    “ McConnell & Bbo.

      ENDOBSED:
    “Pay Brown, Johnston & Co., or order.
    “ Wanzeb, Minob & Co., New Yobk.
    “ Cbomwell, Haight & Co., New Yobk.
    “Bbown, Johnston & Co.”
    “ I, the undersigned Notary, do hereby certify that the parties to the note, whereof a true copy is embodied in the accompanying act of protest, have been duly notified of the protest thereof by letters to them, by me written and addressed, dated on the day of said protest, and served on them respectively this day, in the manner following, viz:
    “A notice to McConnell & Bro. was directed to them at Memphis, Tennessee, and the notices to Wanzer, Minor & Co., and to Cromwell, Haight & Co., were directed to them respectively at New York, and on the day of the above protest I did deposit the same in the Post-office in this city.
    “ In faith whereof I hereunto sign my name, together with Edmond Florian Malus and John Claiborne, witnesses at New Orleans, this eighth day of April, eighteen hundred and fifty-two. Original signed James Claiborne, E. Elorian Malus, John Claiborne, Notary Public.
    “ State of Louisiana, City of New Orleans:

    “I, John Claiborne, a Notary Public duly commissioned and sworn in and for the parish of New Orleans, State of Louisiana, do certify the foregoing to be a true copy of the original certificate of notice extant in my current notarial register.
    “ Witness my hand and official seal at New Orleans, this eighteenth day of August, A. D. 1852.
    [l. s.] “ John Claibobne,
    “ Notary Public.”
    The protest and certificate relative to the second note were also read in evidence, and were substantially of the same import.

      The judge directed the jury to find a verdict for the plaintiff for $832.22, the amount due upon the notes, subject to the opinion of the court upon a case to be heard, in the first instance, at the General Term.

      A. C. Bradley, for the plaintiff,
    now moved for judgment upon the verdict, and insisted that the evidence' objected to was properly received. 1. The certificates were in strict conformity to the laws of Louisiana, where the notes were payable. 2. Courts always and everywhere take judicial notice of the appointment and signature of Rotaries Public. (Shanklin v. Cooper, 8 Blackford 41; Bryden v. Taylor, 2 H. & J. 396; Philip v. Flint, 8 Mill Lou. R. 149, &c.; Caune v. Sagory, 4 Martin Lou. R. 81; Haliday v. McDougall; 20 Wend. 81; 3 Cow. & Hill, 1852.) 3. It was part of the duties of notaries public in Louisiana, to demand payment and to give notice of non-payment as well of promissory notes, as of bills of exchange.

      Wm. D. Booth, for the defendants,
    insisted that the verdict ought to be set aside, and argued as follows.
    I. The certificates of protest were improperly admitted in evidence. They purported to be the certificates of a notary of Louisiana, and, 1. If regarded as the certificates of a foreign notary, should have been under a common law seal, to make them evidence of themselves. 2. If regarded as protests of inland bills; they’ should have been authenticated, or some proof given that the person making them was a notary.
    H. If properly admitted, the certificates of protest are insufficient evidence of eithe'r the presentment, protest, or notice of protest, of the notes. The answer of the defendants denies any knowledge of either, and is under oath. 1. A notarial certificate is not evidence out of the State (Dutchess County Bank v. Ibbotson, 5 Denio, 110). 2. The act making notarial certificates proof of notice, applies to none other than notaries of this State (Bank of Rochester v. Gray, 2 Hill, 227). 3. It might be otherwise after the death of the notary; but not while the notary is living (5 Johns. 375; 20 Johns. 168; 5 Har. & Johns. 489). 4. A protest of an inland bill or note, is no evideuce of demand or notice, by itself; it must be proved, as if no protest had been made (Cummings v. Fisher, Anth. N. P. 1; Union Bank v. Hyde, 6 Wheat. 572; Nichols v. Webb, 8 Wheat. 326, 7 Barr. 433).
    IH. The notes on which this action is brought, are “ inland bills,” and evidence of their alleged presentment and protest, and notice to endorsers, should have been given as such. 1. The law merchant that permits the protest of a notary made abroad, and under seal, to prove itself, is not applicable in this case (Chitty on Bills, 643; 2 Barn. & Ald. 696; 4 Camp. 129; 5 Johns. 175).
    • IV. The certificates are themselves defective, in that they fail to show a due presentment of the notes for payment, or that the notary presented them on making demand for payment (Musson v. Lake, 4 How. U. S. R. 262).
   By the Court. Emmet, J.

The statute of Louisiana, by its terms, makes the certificate of the notary legal proof of the facts which it embraces, only in the courts of that State, and were its provisions not thus limited, so far from being under any obligation to obey, we should be bound to disregard them. There are many cases in which a foreign law must be followed as a rule of decision upon the rights of the parties, but none in which it can be permitted to control and supersede our own rules of evidence.

Setting aside the statute, then, we are clearly' of opinion, that the protests and certificates of the notary at New Orleans were not evidence, either at common law or under our own statute.

The law is settled, that it is only in relation to foreign bills of exchange, that the protest of a foreign notary can be admitted in evidence, and the notes now in prosecution are certainly not bills of exchange. It is true that promissory notes payable in another state or country, may, for remittance, answer the purpose of bills of exchange; but this circumstance is no more sufficient to convert them into bills of exchange than were they bonds under seal containing the same provision as to the place of payment.

As to our own statute it has no application. As we understand its provisions, it is only to protests made within this State, and by our own notaries, that they can be applied.

We shall give no opinion upon the question, whether if the protests and certificates could be properly read in evidence, the facts set forth would be sufficient to charge the defendants as endorsers. The notary must now be examined as a witness, and it is upon his testimony, when so examined, that the case must ultimately turn.

The verdict is set aside, and there must be a new trial, with costs to abide the event.


author: By the Court. Duer, J.

text:
    Renard and others v. Sampson and another.
    (Before Duer, Paine, and Emmet, J.J.)
    May 24, 25;
    June 2.
    J. 0., an agent of the defendants, on the 2d of April, 1841?, addressed a letter to the plaintiffs in which he stated that “he had chartered on their account the A 1 ship Sarah for a voyage from Baltimore to Havre.” The letter set forth in detail the terms of the contract and concluded with these words: “The ship to proceed from the port where she now is to Baltimore without delay.” It was known to the parties that she was then in the port of Boston. On the 5th of April the plaintiff and defendants executed a charter-party in due form, which stated that the ship was then lying in the port of Boston, hut contained no stipulation as to the time within which she was to proceed from that port to Baltimore. The action was upon the agreement in the letter, and the breaches alleged were that the ship was not A 1, and did not proceed without delay from Boston to Baltimore.

      Held, that the charter-party, although not. by express words, yet by intendment of law, covered the voyage from Boston to Baltimore, as well as from Baltimore to Havre, and bound the defendants to commence that voyage within a reasonable time.

      Held therefore, that the agreement in the letter was merged in the charter-party, and that parole evidence to vary the legal construction of the latter was inadmissible.
    Upon these grounds, judgment dismissing complaint affirmed with costs.
    Appeal by plaintiffs from a judgment at Special Term, dismissing the complaint.
    The action was brought to recover damages for the breach of a special agreement, relative to the chartering of the-ship Sarah on a voyage from Baltimore to Havre.
    The complaint averred that the defendants being in the possession, or having the control of the ship, or vessel, called the Sarah, then lying in the port of Boston, employed one John Ogden, of the city of New York, as their agent or broker, to effect a charter of the said vessel from some port of the TJ.S. upon some foreign or other voyage. That Ogden, as such agent, applied to the firm of Eenard & Co. of New York (the plaintiffs in the suit) to charter the said vessel, and on the 2d day of April, 1849, concluded an agreement with them, the terms of which- are contained in a letter which on that day he wrote and delivered to them. The letter is as follows:
    “ New York, April 2d, 1847.
    “Messrs. Eenard & Co.,
    “ Gent.—I have chartered for your account the A 1 ship Sarah, for a voyage from Baltimore to Havre—cargo to consist of one-half flour and one-half wheat, with the privilege of sackswheat at sixty pounds to the bushel, and rye fifty-six pounds—freight at onq dollar and seventy-five cents per bbl., and grain at forty-seven cents per bushel, with five per cent, primage—the vessel to go consigned to your friends in Havre, with the usual commissions—twenty lay days to be allowed in Baltimore for loading; should any alteration be required in Baltimore, in altering the quantity of grain or flour, to be arranged -between the captain and -your, friends—freight to be paid at the rate of five francs and twenty-five centimes to the dollar—.-the ship to proceed from the port where she now is,' to Baltimore without delay.
    “Your ob’t servt.,
    “John Ogden.”
    The complaint set forth as breaches of this agreement that the vessel at the time of the agreement was not of the class called A, Ho. 1, but that great repairs and changes were necessary to make her such, and that the said vessel did not proceed from Boston to Baltimore until or about the 21st day of the same month of April, and therefore did not so proceed without delay within the meaning of the contract; and averred that by reason of these breaches the plaintiffs had sustained great loss and damages amounting to $20,000, for which sum judgment was demanded.
    The defendants, in their answer, admitted that on the 2d of April, 1847, their agent, Ogden, communicated with them in Boston by telegraph respectin'g the terms of chartering the said vessel, and that they, the defendants, on the-same day communicated back with the said Ogden expressing their assent to, and directing him to close on, the terms proposed ; but they denied that the agreement was closed on that day, or that there was any verbal and binding agreement whatever until the 5th day of April, 1847, when a contract of affreightment or charter-party was made and executed by Renard & Co. and the defendants bearing date the 2d of April, 1847, in the words and figures following:
    “This charter-party, made and concluded upon in the City of New York, the 2d day of April, in .the year of our Lord one thousand eight hundred and forty-seven, between Messrs. Sampson and Tappan, of Boston, agents for the owners of the ship Sarah, of the burden of-tons or thereabouts, register measurement, now lying in the harbor of Boston, of the first, and Messrs. Renard & Co.,, of New York, of the second part: Witnesseth, that the said party of the first part agrees on the freighting and chartering of the whole of the said vessel (with the exception of the deck-cabin, and necessary room for the crew and storage of the provisions, sails and cables), or sufficient room for the cargo hereinafter mentioned, unto said party of second part, for a voyage from Baltimore to Havre, in France, on the terms following:
    “ The said vessel shall be" tight, staunch, strong, and every way fitted for such a voyage, and receive on board daring the aforesaid voyage the merchandise hereinafter mentioned; and no goods or merchandise shall be laden on board otherwise ' than from the said party of the second part or agent. The said party of the second part doth engage to provide and furnish to the said vessel, at Baltimore, a full cargo, of flour and grain, one-half to be flour, and the balance to be wheat and rye in sacks, not to exceed three thousand bushels of-rye, and to pay to said party of the first part or agent, for the use of said vessel during the voyage aforesaid, one dollar and seventy-five cents per barrel for flora’, and forty-sevén cents per bushel of 60 lbs. of wheat and rye, with five per cent, primage, payable on the discharge of the cargo, at the rate of five and a quarter francs to the dollar. It is agreed that the lay-days, for loading and discharging, shall be as follows : Commencing from the time the captain reports himself ready to receive or discharge cargo, twenty days at Baltimore, for loading; to discharge with dispatch ; and that for each and every day’s detention' by default of said party of second part or agent, eighty-five silver dollars per day, day by day, shall be paid by said party of second part or agent, to said party of the first part or agent; the cargo or cargoes to be received-and delivered within reach of the vessel’s tackles, at the ports of loading and discharging.
    “The vessel to be addressed to the charterers’ friends at Havre, subject to the usual commission.
    “ To the true and faithful performance of all and every of the foregoing agreements, we, the said parties, do hereby bind ourselves, our heirs, executors, administrators and assigns, each to the others, in the penal sum of eleven thousand dollars.
    “In witness, &c.
    (Signed) “ Sampson & Tappan-,
    “Renakd & Co.,”
    and the defendants insisted that by the execution of this charter-party all previous agreements, negotiations and proposals in relation to the chartering of the vessel, became of no effect, and that from that time the charter-party became and was the only existing and valid agreement between the parties in relation thereto.
    The plaintiffs in their reply admitted the execution of the charter-party, but denied that by its execution all .previous agreements, negotiations, and proposals in relation to the chartering of the vessel, became void, and the charter-party the only valid and existing agreement between the parties; and on the contrary the defendants averred that the charter-party embraced only so much of the previous agreement as concerned the vessel after she should arrive at Baltimore, leaving the stipulation—in the letter of Ogden—that the vessel should proceed to Baltimore without delay, in full force.
    The pleadings, which are voluminous, contain various other allegations and denials, but none that have any relation to the real merits, or any bearing upon the questions argued and decided.
    The cause came on for trial before the Chief Justice and a jury, in May, 1852, and after the counsel for the plaintiffs had opened the case to the jury, the counsel for the defendants moved upon the pleadings that the complaint should be dismissed. The Chief Justice granted the motion, and the counsel for the plaintiffs excepted to his decision.
    The case made upon this exception was first heard at Special Term, when a new trial was denied and judgment entered for the defendants. It was now heard upon an appeal from this judgment.

      F. B. Cutting, for plaintiffs,
    argued for a reversal of the judgment, and insisted that
    I. The agreement that the ship Sarah should proceed from Boston, where she then was, to Baltimore without delay, was upon sufficient consideration, and was in other respects a bind- „ ing and valid obligation.
    II. The inducement for agreeing to charter the ship for a voyage to commence at Baltimore, was the representation that, although she was then in Boston, she was “ all ready for sea,” and would sail and proceed thence without delay; and consequently the plaintiffs had the right to expect, and did expect, that she would be in Baltimore within the time óf an ordinary passage, and but for the representation and the agreement that she was then in a condition to proceed, and would without delay proceed from Boston, the charter from Baltimore would not have been entered into. The plaintiffs acted upon this arrangement, and purchased and stored cargo in anticipation of the • early arrival of the vessel in Baltimore. In fact, the ship was not “ all ready for sea,” and, on the contrary, she required great repairs, so that she was detained in Boston for upwards of 18 days, and by reason of this delay the plaintiffs suffered thereby great loss in storage and expenses on parts of the cargo bought, and in the price they were obliged to pay for the residue, and in the loss of a market.
    III. The charter-party, dated in April, 1847, (not under seal) embraced and covered the voyage from Baltimore to Havre only, and did not merge or extinguish the pre-existing contract for the immediate dispatch of the vessel from Boston to- Baltimore. The contract that the ship was all" ready for sea, and should proceed from Boston to Baltimore without delay, was not discharged or released or otherwise rendered ineffectual by the contract for the voyage from Baltimore to Havre. That was a distinct, separate and independent contract for a service to commence when the agreement to proceed without delay from Boston to Baltimore had ended. The agreement to sail from Boston without delay was for something to be done anterior to the service contracted for in the charter-party, and did not contradict or vary the terms of the charter-party.—(1 Greenl. Ev. sec. 275; White et al. v. Parkin, 12 East, 578.) The contract that the vessel was ready for sea, and would sail from Boston without delay, was in writing, and of as high an order of evidence as the charter-party. The written contract to proceed from Boston without delay did not contradict, vary or add to any thing contained in the agreement for the voyage, after the vessel had arrived at Baltimore, from thence to Havre. (1 Greenl. sec. 282.) The first agreement did not relate to the same subject matter. (1 Greenl. Evid. secs. 283, 285; Ibid., sec. 284, &c.; Lewis v. Gray, 1 Mass. 297; Lapham v. Whipple, 8 Metcalf, 59; 3 Cow. & Hill Notes 1478; Ibid. 1473; Jeffrey v. Walton, 1 Stark, 267.)

      H. E. Davies, for the defendants,
    resisted the motion upon the following grounds.
    I. The stipulations contained in the letter of 2d April, 1847, are merged in the charter-party, and no action can be maintained thereon. 1. Such an intention is manifest from a careful examination of the letter and the charter-party; for, though the charter-party substantially follows the letter, yet there are eight or ten important variations, in which new provisions are inserted, and old ones rejected. These variations show that the parties very deliberately considered the subject. 2. The provision of the letter, that the “Sarah” should proceed to Baltimore, without delay, is simply one of these variations, and was, undoubtedly, not inserted in the charter-party by reason of the known interest of the respondents to forward the “ Sarah” as soon as possible. 3. The facts that the charter-party (being made on the 5th of April, three days after the date of the letter) was antedated to the 2d of April, and that the “Sarah” was referred to as “ now lying in the harbor of Boston,” show that the parties intended the charter-party should have a retrospective effect to the 2d April, and the time of the “ Sarah” leaving Boston. 4. But,independent of any expressed intention appearing in evidence, the court is bound, as matter of law, to treat the charter-party as containing the whole contract, and as merging all the prior negotiations between the parties. (2 Kent’s Com., 556; Greenleaf s Ev. § 275, 276; Mumford v. McPherson, 1 Johns. 414; La Farge v. Rickert, 5 Wend. 187; Barclay & Livingston v. Hohn, decided in U. S. District Court by Judge Betts, 1852; Cowen & Hill’s Notes to Phil. Ev. 2d part, page 593, Note 295, and cases cited.)
   By the Court. Duer, J.

The question which directly arises upon the pleadings is, whether the charter-party set forth in the answer, and admitted by the reply, must not bo held to contain the whole agreement of the parties, upon the subject to which it relates, and, consequently, to have superseded entirely the prior agreement set forth in the complaint, upon the alleged breach of which alone this action is founded. Upon this ■ question we had some doubts upon the argument, but are now satisfied that the necessary legal construction of the charter-party is that, which has been stated, and that the complaint was, therefore, properly dismissed.

The argument, upon the part of the plaintiff, rests wholly upon the assertion, that the charter-party covered only the voyage from Baltimore to Havre, and embraced no stipulation whatever relative to the intermediate voyage from Boston to Baltimore. The prior agreement, that the vessel should proceed without delay from Boston to Baltimore, it was insisted, was distinct and independent, and as it was entirely consistent with the terms of the charter-party, that, so far from being superseded and extinguished, it retained all its original force. The plaintiffs had, therefore, an unquestionable right to maintain an action for its violation.

It was, however, very properly admitted by the learned counsel for the plaintiffs, that had the charter-party contained an express stipulation that the vessel, for the purpose of receiving her cargo, should proceed within a reasonable time, or without an unreasonable delay, from Boston to her port of lading, no evidence of the prior agreement, without a departure from the established rules of law, could have been received. The conclusion, it was admitted, could not then have been resisted, that the charter-party embraced the whole contract of the parties, and that the plaintiffs could maintain no action not founded upon a breach of its provisions. It is, therefore, upon the mere silence of the charter-party, the absence of any express provision relating to the voyage from Boston, that the right of the plaintiffs to maintain the action confessedly depends.

We are, however, clearly of opinion, that the inference which has been drawn from this silence of their written contract, that the parties meant to be governed in part by their prior agreement, is wholly unwarranted. The true inference is, that they were willing to abide by the construction which they knew the law would giye to their contract, and deemed it unnecessary to insert a provision, which would have expressed no more than, in its absence, the law would certainly imply. It cannot be doubted, we apprehend, that in the absence of a positive stipulation, the legal construction of a charter-party is that the voyage described shall be commenced without unreasonable delay; and the law, with some exceptions created by usage, is settled, that evidence to alter the legal construction of a written contract can no more be admitted than to contradict or vary its positive terms. The position, therefore, upon which, as has been stated, the whole case of the plaintiff is rested, we must hold to be groundless. It is not true that the charter-party was confined to the voyage from Baltimore to Havre. It was known, to the parties, and is so stated in the charter-party itself, that the ship was then lying in the harbor of Boston, and, consequently, that she must proceed from that port to Baltimore in order to commence her stipulated voyage. This necessary coasting voyage was therefore as much in the contemplation of the parties as the outward voyage to Havre, and was just as certainly within the scope and provisions of their contract; for, although not embraced by its terms, it was so', by its reasonable and legal construction. The contract imposed it as a duty upon the defendants to cause the vessel to proceed, without unnecessary delay, from Baltimore to Havre, and the performance of this duty necessarily involved that of causing her to proceed, without unnecessary delay, from Boston to Baltimore. If this delay at Boston has, in fact, occurred, the plaintiffs may be entitled to recover the damages they may have sustained in an action upon the charter-party itself, but they cannot be entitled to recover them in an action upon an ,, agreement, which, by the subsequent conclusion of the charter-party, was wholly extinguished.

To prove that the legal construction of the charter-party is that which.we have stated, we shall content ourselves with referring to the single case of McAndrew v. Adams (1 Bing. M. C. 29), which, stamped as it is with the approbation of Lord Tenterden (Abbott on Ship. 255), we regard as a decisive authority. In that case, the defendant, the master of the ship, had agreed by charter-party to go in ballast from Portsmouth to St. Michael’s in the Azores, and bring back a cargo of fruit direct to London. The charter-party was dated on the 20th of October, and contained no stipulation as to the time within which the voyage from Portsmouth should be commenced, but the court held that the absence of such a provision did not affect the right of the plaintiff, the charterer, to recover the damages it was alleged he had sustained from an unnecessary delay in the commencement of the voyage, and it appearing that it was not in fact commenced until the 6th of December, the delay, taking into consideration all the circumstances of the case, and particularly the nature of the trade, was adjudged to be unreasonable. It is evident that the voyage from Portsmouth in that case bears an exact resemblance to the voyage from Boston in the present; it was not a voyage on which any part of the freight was to be earned, but was necessary to be performed, to enable the vessel to take on board her stipulated cargo.

The proposition that the legal construction of a contract in writing, upon a question in relation to which its terms are silent, cannot be' varied by evidence of an inconsistent agreement, prior or contemporaneous, is sustained by two express decisions of our Supreme Court, which we hold ourselves bound to follow. In La Farge v. Richert (5 Wend. 187), the defendant had bound himself in writing to deliver certain portable goods to the plaintiff on or before a certain day, but no place for the delivery was mentioned in the contract.. The defence was, that by the parole agreement of the parties the goods were to be delivered on the premises of the defendant, and that on the appointed day this delivery was actually tendered. This defence was, however, overruled by the court, upon the ground 'that the construction which the law gave to the contract required the delivery to be made at the residence of the plaintiff, and that this construction could not be varied by the evidence that was offered.

In Creevy v. Holly (14 Wend. 26), the action was brought by a shipper against the owners of the vessel, for the loss of goods stored upon deck; and the claim was resisted upon the ground that, by the express understanding of the parties, the goods in question were to be carried on deck.

It was, however, held by the court, that the bill of lading, which was the proper evidence of the contract, by its legal construction, although not by its terms, imposed it as a duty upon the defendants to transport the goods under deck; and Ch. J. Kelson said, that as “ such was the judgment of law upon the contract, parole evidence was just as inadmissible to alter it as if the duty had been imposed by express terms.”

We are deeply convinced of the wisdom of the law in excluding all evidence of prior declarations or agreements of the parties when their final contract has been reduced to writing (2 Kent’s Com. 556 ; 1 Greenleaf on Ev. § 275); and we, are not at all disposed to weaken the force of the rule by creating an arbitrary exception. We think we should create such an exception by admitting the right of the plaintiffs to maintain their present action, and must therefore affirm, with costs, the judgment at special term, dismissing their complaint.


author: By the Court.

text:
    Hicks & another v. McGrorty.
    (Before Oakley, Ch. J., Campbell and Emmet, J.J.)
    June 8;
    June 11, 1853.
    In an action by the voluntary assignees of an insolvent, to recover the price of goods sold by the debtor to the defendant, the latter cannot set-off a promissory note from the insolvent to himself, which was not due at the time of the assignment, although it became so before the suit was commenced.
    This action was brought by the plaintiffs, as the assignees of the firm of Thompson and Co., to recover the sum of $228.87, with interest, for goods sold and delivered by T. & Co. to the defendant. The answer did not deny the sale, but claimed to set-off a promissory note from Thompson & Co. to the defendant, for $653.70, dated May 16th, 1851, payable seven months after date. The credit for the goods expired on or before the 18th of December, 1851. The promissory note fell due on the day following.
    The action was tried before Mr. Justice Paute and a jury, on the 12th October, 1852.
    The plaintiffs gave in evidence a deed of assignment, bearing date September 20, 1851, made by Henry G. Thompson and Joseph A. Dean, composing the firm of Thompson & Co., transferring all their property and effects to the plaintiffs upon trust, to convert the assigned estate into money, and to apply the proceeds, after defraying the expenses of the trust, First, to satisfy the indebtedness of the assignors to the firms of Brown, Brothers, & Co., and Hicks & Co.; Second, to pay the liabilities of the assignees to F. S. & D. Lathrop & Co., and F. S. Lathrop & Co., and the debts for which those houses were responsible for the said assignors; Third, to pay all the other debts of said assignors, paying the respective creditors ratably in case of a deficiency to pay in full; and, lastly, to return the surplus, if any, to the assignors. The plaintiffs then proved that the interest on the items of indebtedness mentioned in the complaint, amounted to thirteen dollars and eighty-one cents, and rested their case.
    The defendant then gave in evidence the promissory note of Thompson & Co., for six hundred and fifty-three dollars and seventy cents, mentioned in his answer, and called as a witness,

      John Jaoksm, who testified as follows: I was,'in 1851, and am now, a clerk of the defendant. The note of Thompson & Co. for six hundred and fifty-three dollars and seventy cents, now produced, was given for goods purchased by them of the defendant. The goods had been previously purchased at different times, and the note was given for the aggregate amount of the bills. The witness further testified as follows—(the plaintiffs’ counsel objecting to the evidence as inadmissible under the pleadings, and the court reserving the objection)— Previous to the first item in the account for which this note was given, there had been frequent dealings between Thompson & Co. and the defendant—buying of goods by Thompson & Co. of McGrorty, and by McGrorty of Thompson & Co. The items for which this note was given were in continuation of that account. Subsequent to the date of the note, I think there were purchases by Thompson & Co., of McGrorty, which formed the subject of book account.
    Cross-examined.—I feel well satisfied there were such purchases as mentioned at the close of my direct examination, but will not swear positively that there were., I cannot recollect the amount or date. Such purchases, if any there were, were settled for by deducting the amount of them from some indebtedness of McGrorty to Thompson & Co. for goods purchased of them, a note being given to Thompson & Co. for the balance-.
    The defendant then rested, and the plaintiffs called .Renne Martin, who testified as follows: I was the clerk and bookkeeper of Thompson & Co., and am acquainted with the value of their assets, and the amount of their indebtedness at the time of their assignment to the plaintiffs. The assets embraced in the assignment are not sufficient to pay the indebtedness to Brown, Brothers, & Co., and Hicks & Co.
    Cross-examined.—I am not prepared at present to state the amount of the assets, nor of the debts of the first class of creditors; but they are large, and the assets will not pay the first class. The assets passed into the hands of the assignees, and I suppose they hold them. I cannot state what proportion of the debt to Brown, Brothers, & Co., nor what proportion of the whole indebtedness of Thompson & Co., fell due prior to the 19th of December, 1851. I cannot state the amount of assets—cannot state the amount due to the preferred creditors. I cannot tell what proportion of all the claims were due, or to become due, at the date of the assignment; cannot tell what was due, or to become due, on the 19th December, 1851.
    The testimony being closed, the jury, by consent of the parties, found a verdict for the plaintiffs for two hundred and forty-two dollars and forty-eight cents, subject to the opinion of the court upon a case to he made, with liberty to either party to turn the case into a bill of exceptions.

      W. M. Evarts, for the plaintiffs,
    now moved for judgment upon the verdict, and supported the motion as follows.
    I. The debt from the assignors of plaintiffs not being presently due and payable at or before the time of the assignment, cannot be set off in this action. (2 R. S. 354? § 18, sub. 8; Watt v. The Mayor, &c., 1 Sandf. S. C. R. 23.)
    II. The fact that plaintiffs are .assignees for the benefit of creditors does not enlarge the defendant’s right of set-off. The right is created by statute, and in terms defined, and no extension or variation of the rule is prescribed in the case of suits by voluntary assignees for the benefit of creditors. (Spencer v. Barber, 5 Hill, 568.) The proof shows that the assignors’ right is extinguished, the debt exceeding the assets. The plaintiffs’ right is that of the preferred creditors, who, in respect of equity, stand in the same position as if the defendant’s debt had been assigned to them directly. (Johnson v. Bloodgood, 1 Johns, case 51; Kent J., p. 54.)

      J. Cochrane, for defendant,
    opposed the motion, and claimed judgment for the defendant upon the following grounds.
    I. The note claimed by defendant to be set off against the plaintiff’s claim, grew out of an account, of which the claim of the plaintiffs was a part. The equities, therefore, between the parties, are superior to those of the creditors.
    H. The evidence does not disclose that there were not sufficient assets to pay all the indebtedness of Thompson & Co. actually due on the 19th day of December, 1851. Therefore, the equities of creditors are shown to exist.
   By the Court.

The proof is satisfactory, if not conclusive, that the assets of Thompson & Co. will be wholly insufficient to satisfy their debts, and we therefore think that the plaintiffs are entitled to the same protection as assignees for value against the set-off which is claimed. The defendant, as against them, had no subsisting equity when the assignment was made; not only was the note held by him, not due at that time, but it did not become due until he had become liable to the plaintiff.

Judgment for the plaintiffs, with costs. (Vide Keep v. Lord, ante p, 78.


text:
    Paine and others v. Smith, Administrator, &c., of Hunt, dec.
    (Before Oaklety, C. J., Campbell and Emmet, J.J.)
    June 8;
    July 2.
    When no other ground of demurrer is meant to be relied on than the insufficiency in law of the matters set forth in the complaint to maintain the action, it is specified' as distinctly as can be required, in the words of the Code, “ That the complaint does not state facts sufficient to constitute a cause of action.”
    When an order for the resale of mortgaged premises is made in a foreclosure suit on account of A B, as the first purchaser, and requiring him to pay any difference in price, no action can be maintained on the order against C D, on the ground that he was the real purchaser. The order concludes the owners of the fee.

      Appeal from an. order at special term, allowing a demurrer to the complaint;
    The complaint is in the following words:
    John Paine, James Phalen, and John M. Bixby, plaintiffs, complain that Adon Smith, administrator of the goods and chattels, &c., of Jonathan Hunt, late of New York, deceased, defendant, refuses to pay unto the plaintiffs the sum of two thousand two hundred and forty-two dollars and ninety-two cents, with interest from the 16th day of October, 1846, due and owing unto said plaintiffs by said Jonathan Hunt, in his lifetime, and by Adon Smith, as administrator, &c., in manner following:
    For that in his lifetime, to wit, on the 9th day of May, 1846, Jonathan Hunt purchased, at a sale made under and in pursuance of a decretal order or decree in a certain suit then pending in Chancery, before the Vice-Chancellor, entitled, “John J. Palmer, Special Receiver, v. Isaac M. Woolley and Matilda D. his wife, and others,” certain portion of the premises mentioned and described in said decretal order or decree, bidding for the same by his agent, Jeremiah Lathrop, and causing the said premises to be struck off to one Adon Smith, and that said Jonathan Hunt, after paying, through his agent, Jeremiah Lathrop, the ten per cent, and auctioneer’s fees, according to terms of said sale, then and there failed to comply with said terms of sale and complete his said purchase, but forfeited his said ten per cent., whereupon a motion was made in the above mentioned cause or suit so pending for a re-sale, which was granted, and amongst other things ordered that on said re-sale the surplus of said re-sale, after paying the amount bid on said re-sale, interest, cost and charges, be paid over to said Jeremiah Lathrop, and that the deficit, if any, be paid by said Jeremiah Lathrop; and that at said re-sale, according to the Master’s report thereon made the 8th day of October, 1846, and confirmed the 16th day of said month, there was a deficiency upon said re-sale of $2,242.92^, which is still due and owing to the plaintiffs, they then being the owners in fee of the said property, after satisfying liens thereon. Whereupon the said plaintiffs demand judgment against the said defendant, as administrator of the goods, chattels, &c., of Jonathan Hunt, deceased, for two thousand two hundred and forty-two dollars and ninety-two cents, with interest thereon from the sixteenth day of October, one thousand eight hundred and forty-six.
    The demurrer stated no other ground of objection, than that the complaint “ did not state facts sufficient to constitute a cause of action.”
    Hr. J. Campbell, by whom the case was heard at special term, ordered that the demurrer should be allowed and the complaint dismissed with costs, unless the plaintiffs should within 20 days amend their complaint and pay the costs of the demurrer—and it was from this order that the appeal was taken.

      A. Clason for the plaintiff's and appellants.
    I. The demurrer is bad under the Code, because it specifies no defect. (How, Practice R. vii. 278 ; do. vi. 361.)
    II. The complaint is good upon demurrer. It states a contract with the court, to the benefit of which the plaintiffs are entitled; that one Lathrop, the ostensible contractor, was not the real'party in interest, and that the intestate is the real party in interest.
    III. Before the Code, the present plaintiffs could have filed a bill to set in motion the former order.

      W. M. Evarts for defendant.
    I. The complaint shows no contract by defendant’s testator with the plaintiffs, for the purchase of any lands. (2 R. S. 135. § § 8, 9. Townsend v. Hubbard, 4 Hill, 351; McWharter v. McMahon, 10 Paige, 393; Coles v. Bowne, ib. 537.)
    II. It shows no conveyance to him, nor offer to convey, nor any excuse for such omission.
    IH. It shows the purchase to have been made by another person, to wit, Lathrop. . '
    IT. It shows that the default of the purchaser at the Chancery sale was judicially disposed of in the suit, by the court having jurisdiction; and that the defendant’s testator was not held as purchaser by the court. This is an adjudication of the whole matter. (Strong v. Dollner, 2 Sandf. Sup. Ct. R. 444; Brown v. Frost, 10 Paige, 247.)
   By the Court.

We are all of opinion that the order appealed from must be affirmed with costs.

The demurrer is not bad upon its face; for, when no other cause of demurrer is meant to be relied on than the insufficiency in law of the facts set forth in the complaint, to maintain the action, no other is necessary to be assigned, and it is properly assigned by following the words of the Code: “ That the complaint does not state facts sufficient to constitute a cause of action.” ' Section 145, in requiring the grounds of objection to the complaint to be distinctly specified, only means that the demurrer shall specify distinctly one or more of the six causes of demurrer, which are enumerated in § 144. So far as this court is concerned, this question must be considered as settled.

The facts set forth in the complaint are certainly not sufficient to entitle the plaintiffs to maintain the action. Passing over other objections," we cannot doubt that the plaintiffs are concluded, by the "order in the foreclosure suit, which required the deficit, that they now seek to recover, to be paid, not by the intestate, but by Jeremiah Lathrop. If it was then known to the plaintiffs that Hunt was the real purchaser, and Lathrop merely his agent—and they desired that Hunt should be personally liable for a deficiency on a re-sale, the order should in terms have required the payment to be made by him. The complaint does not allege that the plaintiffs were then ignorant of the fact that Hunt was the purchaser, and we have no right to presume that they were so.

It is not very probable that this complaint can be so amended as to enable the plaintiffs to maintain the action; but, in affirming, with costs, the order appealed from, the liberty of amending, within the usual time and upon the usual terms, will be continued to them.