Action for Deceit.-Action of Trover. 318. If a belligerent captures and detains pro-licious prosecution, the plaintiff must prove that perty, he does it at his peril. Should the capture the original suit by the defendant was instituted and detention, on investigation, turn out to be with malice, and without probable cause. Withunwarranted by the law of nations, or forbid by out probable cause, malice may be implied, aca particular treaty, he is bound to make ample cording to the circumstances of the case. But compensation in damages. Hollingsworth v. The from the most express malice, want of probable Betsy, 2 Ad. Decis. 330. cause cannot be implied. Hence the plaintiff must prove malice, to sustain a suit, which must be express or implied, and that there was a want of probable cause. Murray v. M'Lane, 5 Hall's Law Journal, 514. ACTION FOR A MALICIOUS PROSECUTION. 319. In order to entitle the plaintiff to a recovery in an action for a malicious prosecution, he must show affirmatively: first, malice on the part of the defendant; and secondly, the want of probable cause. If there be no malice, and yet no probable cause, or if there is malice, but at the same time probable cause, the plaintiff Muns v. Dupont et al., 2 Wash. cannot recover. C. C. R. 465. 320. By probable cause, is meant the existence of circumstances and facts, sufficiently strong to excite, in a reasonable mind, suspicion that the person charged with having been guilty was guilty: it is a case of apparent guilt, as contradistinguished from real guilt. Ibid. 321. In an action for a malicious prosecution, the advice and opinion of counsel, as to there being a good cause of action, given before the commencement of the suit, is admissible evidence to rebut the presumption of malice; but not if given after suit brought. Blunt v. Little, 3 Mason, 102. 322. But it is not evidence, unless it is shown what statement of facts was laid before such counsel for his advice and opinion. Ibid. 323. No action for a malicious prosecution can be sustained, unless there be both want of probable cause, and also malice in the party. If there be probable cause, proof of malice will not suffice; but from the want of probable cause, malice may be inferred. Ibid. 330. The question of probable cause is one of law and fact mixed together. Whether the circumstances alleged to show the cause probable or not, are true, and did exist, is a question of fact; but whether, if true, they amount to probable cause, is a question of law, to be decided by the court. Ibid. ACTION FOR DECEIT. 331. Action on the case for deceit, in selling a vessel as a British vessel, she not being in fact such. It was held that the plaintiff was entitled to damages to the extent of the difference of value of the vessel as sold, and her value if her real character had been known; and also to such damages as the value of repairs made on her, on the faith of the representation of her British character, which had not been remunerated by her earnings, or in any other way. Sherwood v. Sutton, 5 Mason's C. C. R. 1. ACTION OF TROVER. 332. Infancy is a bar to an action by an owner against his supercargo for breach of instructions, but not to an action of trover for the goods. Still, however, infancy may be given in evidence in an action of trover upon the plea of not guilty, not as a bar, but to show the nature of the act 324. If a party, by his folly or his fraud, ex-which is supposed to be a conversion. Vasse v. poses himself to well-grounded suspicions of Smith, 6 Cranch, 226; 2 Cond. Rep. 253. being guilty of larceny, there is probable cause for instituting a prosecution against him for the crime; which is a sufficient defence in this action. It is not necessary, to fix the crime of larceny on the plaintiff, to show such probable cause, Wilmarth v. Mountford et al., 4 Wash. C. C. R. 79. 325. Demanding excessive bail when plaintiff has a good cause of action; or holding to bail when there is no cause of action, if done vexatiously; entitles the party injured to an action for a malicious prosecution. Ray v. Law, 1 Peters' C. C. R. 207. 326. If bail be not demanded, however futile and unfounded the action may be, as the plaintiff is punished by the payment of costs, and the defendant is not materially injured, such an action will not lie. Ibid. 327. It does not follow, from the plaintiff's failure to recover, that the action was brought with a view to vex, and improperly to injure the defendant. Ibid. 328. That the plaintiff had probable cause of action, is a sufficient defence to an action brought against him for a malicious prosecution. Ibid. 329. In order to maintain an action for a ma 333. The conversion is, in its nature, a tort, and is not within that class of cases for which infancy can afford protection. Ibid. 334. An infant is liable in trover, although the goods were delivered to him under contract, and although they were not actually converted to his own use. Ibid. 335. A factor cannot pledge the goods of his principal for his own debts; and if he does, the principal may, after a demand and refusal, maintain trover for them against the pawnee. Van Amringe v. Peabody, 1 Mason, 440. 336. Replevin does not lie unless there has been an unlawful taking from the possession of another. If, after a bailment of goods, they are unlawfully converted or detained, detinue or trover, and not replevin, is the remedy. Meany v. Head, 1 Mason, 319. 337. When a party holding goods in his possession adversely, has paid rent for the premises in which they are stored, it is not necessary to tender the rent, in order to enable the owner of the goods to maintain trover. Allen v. Ogden, 1 Wash. C. C. R. 176. 338. If, upon a demand, the defendant said he would retain the goods demanded, and that he Action on a Commercial Guarantee. knew a suit would be brought; this is evidence of conversion. Ibid. 339. To enable a plaintiff to maintain trespass on trover, for an injury to personal property, the plaintiff must have had, at the time of the injury, either actual or constructive possession of the property, as well as a general or constructive property in it. Corfield v. Coryell, 4 Wash. C. C. R. 371. 340. In trover, a mere demand and refusal is not, in all cases, evidence of conversion. Where the demand is made by an agent, and the refusal is for defect of authority in the agent, or for refusal to show his authority, it is not evidence of a conversion. Aliter, where there is no request to see the authority, and the refusal to deliver the property turns on other and distinct grounds. Watt v. Potter, 2 Mason, C. C. R. 77. notice to the latter of the extent of his engage ment. Ibid. 347. A fraudulent representation will subject the person giving it to the damages sustained by the person trusting to it. Ibid. 348. A misrepresentation of the solidity of a mercantile house, made under a mistake of the fact, without any interest, or fraudulent intention, is not a sufficient ground on which an action can be sustained; although the plaintiff may have sustained damage by reason of such misrepresentation. Ibid. 349. A merchant who endorses the bills of another on the faith of the guarantee of a third person, cannot, in case of the insolvency of the principal debtor, and of the guarantee, resort to a trust fund, created by the principal debtor for the indemnity of the guarantee, for the amount for which the guarantor was liable. Ibid. 350. When the guarantor is insolvent, a court of equity will not decree the money raised for his indemnity to be paid to him, without security being first given that the debt of the principal will be paid. Ibid. 341. A received goods from B & C, on an agreement that A should take them for sale from place to place, pay the invoice price for such as were sold, and return those unsold, being credited with the invoice price of the goods returned, and he to receive the surplus of the sales over the invoice price. The goods were put up in 351. În case of a warranty and indemnity, a New York, and were brought into Pennsylvania judgment against the person to be indemnified, for sale, where they were attached by the cre- if fairly obtained, especially if on notice to the ditors of A, for debts due by him before he re-warrantor, is evidence in the suit against the ceived the goods. A abandoned the goods, warrantor, on his contract of indemnity. Clark's returned to New York, and returned the invoices Executors v. Carrington, 7 Cranch, 308; 2 Cond. to B & C. B & C could recover in trover against Rep. 507. the sheriff for taking the goods as the property of A. Merrill & Foster v. Rinker, 1 Baldwin's C. C. R. 528. ACTION ON A COMMERCIAL GUARANTEE. 352. B., a merchant in New York, wrote to L., a merchant in New Orleans, on the 9th of January, 1806, stating that a ship belonging to T., of P., was ordered to New Orleans, for freight, and requesting L. to procure a freight for her, 342. A letter from the defendants to J. M., and to purchase and put on board of her five saying they would be his security for one hun- hundred bales of cotton, on the owner's account, dred and thirty barrels of corn, payable in twelve "for the payment of shipments on owner's acmonths, will maintain an action of assumpsit count, the bills of T. on me, at sixty days, will against the defendants upon the faith of the let-meet due honour." On the 13th of February ter, in favour of any one who has given credit to J. M. for the corn. Lawrason v. Mason, 3 Cranch Rep. 492; 1 Cond. Rep. 605. 343. A letter of credit, addressed by mistake to John and Joseph, and delivered to John and Jeremiah, will not support an action by John and Jeremiah for goods furnished by them to the bearer, upon the faith of the letter of credit. It is not a written contract between the plaintiffs and defendants, and parol proof cannot be admitted to make it such. It is not a case of fraud, ambiguity or mistake, on the part of the plaintiffs. Grant v. Naylor, 4 Cranch, 224; 2 Cond. Rep. 95. next, the same request was repeated in another letter, and enclosing a letter from T. to L., giving L. instructions; and T. continued to correspond with L., adding, "thy bills on me for T.'s account will meet due honour." On the 24th of July, 1806, B. wrote again to L. on the same subject, adding, "the owners wish her loaded on their own account, for the payment of which thy bills on me will meet due honour at sixty days' sight." L. proceeded to purchase and ship cotton, and drew bills on T., which were paid. He afterwards drew two bills on T., in New York, which were protested for non-payment, he having in the mean time failed; and about two years afterwards drew bills on B. for the balance due, including the two protested bills, damages and interest. Held, that the letters of February 13th 344. The construction of a letter of credit, or guarantee, must be the same in a court of equity as in a court of law; and any facts which might be introduced in one court to explain the trans-and July 24th, contained no revocation of the action, may be introduced into the other. Russell v. Clark's Executors et al., 7 Cranch, 69; 2 Cond. Rep. 417. 345. To charge one person with the debt of another, the undertaking must be clear and explicit. Ibid. letter in the undertaking of January 9th; that although the bills on T. were not drawn according to B.'s assumption, this could only affect the right of L. to recover the damages paid by him on the return of the bills, but that L had still a right to recover on the original guarantee. 346. It is the duty of him who gives credit to Held, also, that L., by making his election to another, upon the responsibility or general un-draw on T., in the first instance, did not thereby dertaking of a third person, immediately to give preclude himself from resorting to B., whose Action on a Commercial Guarantee. 357. Action upon the following letter of guarantee, written by the defendants and delivered to the plaintiffs: "Our friend, Mr. Chester Haring, to assist him in business, may require your aid from time to time, either by acceptance or endorsement of his paper, or advances in cash; in order to save you from harm in so doing, we do hereby bind ourselves, severally and jointly, to be responsible to you at any time for a sum not exceeding 8000 dollars, should the said C. H. fail to do so." One count in the declaration was for money lent, and money had and received. Held, that upon a collateral undertaking of this sort, no such suit is maintainable. Douglass v. Reynolds, 7 Peters, 113. undertaking was, in effect, a promise to furnish | writer responsible, without giving notice to him the funds necessary to carry the adventure into that he had acted upon it. Ibid. execution. Held, also, that L. had a right to recover from B. the commissions, disbursements, and other charges of the transaction. Lanusse v. Barker, 3 Wheat. 101; 4 Cond. Rep. 204. 353. A letter stating, "my son W. mentioned to me, that in consequence of your esteem and friendship for him, you had caused and placed property of yours and your brother's in his hands for sale, and that it is probable, from time to time, you may have considerable transactions together; on my part I think proper to guaranty to you the conduct of my son, and shall hold myself liable, and do hold myself liable for the faithful discharge of all his engagements to you, both now and in future," will extend to a partnership debt incurred by W. to the two brothers. Drummond v. Prestman, 12 Wheat. 515; 6 Cond. Rep. 620. 354. In such a case, the record of a judgment confessed by the principal, W., to R. D., as surviving partner of R. & C. D., for the amount of the debt due by W. to the partnership firm, was held to be admissible in evidence, inter alia, to charge the guarantor under his letter of guarantee. Ibid. rantee; so that if, in point of law, it was entitled to that character, the plaintiffs' claim might not be open to the suggestion that no such advances, acceptances, or endorsements had been made upon the credit of it. The evidence was not open to the objection, that it was an attempt, by parol evidence, to explain a written contract. Ibid. 358. The depositions of several witnesses,, clerks in the counting-house of the plaintiffs, were admitted on the trial of the cause, in which the witnesses stated, that they knew that a letter of credit was considered by the plaintiff as covering any balance due by C. H. to them, for advances from time to time, to the amount of 8000 dollars; that advances were made, and moneys paid by them on account of C. H. from the time of receiving the said letter, predicated on the 355. A letter of credit was written by Edmond- letter always protecting the plaintiffs to the ston, of Charleston, South Carolina, to a com- amount of 8000 dollars; and that it was consimercial house at Havana, in favour of J. and T. dered in the counting-house as a continuing letter Robson, for fifty thousand dollars, "which sum of credit, and so acted upon by the plaintiffs. they may invest through you in the produce of Held, that this evidence was rightly admitted to your island." On the arrival of Thomas Robson establish that credit had been given to C. H. on in Havana, the house to whom the letter of Mr. the faith of it, from time to time, and that it was Edmondston was addressed, was unable to un-treated by the plaintiffs as a continuing guadertake the business, and introduced Thomas Robson to Drake and Mitchel, merchants at that place, exhibiting to them the letter of credit from Mr. Edmondston. Drake and Mitchel, on the faith of the letter of credit, and at the request of Thomas Robson, made large shipments of coffee to Charleston, for which they were, by agreement with Thomas Robson, to draw upon Goodhue and Co. of New York, at sixty days, where insurance was to be made. Of this agreement Edmondston was informed, and he confirmed it in writing. For a part of the cost of the coffee so shipped, Drake and Mitchel drew bills on New York, which were paid; and afterwards, in consequence of a change in the rate of exchange, they drew for the balance of the shipments on London. This was approved 360. The guarantee in this case covered sucof by J. and T. Robson, but was not communi- cessive advances, acceptances and endorsecated to Edmondston. To provide for the payments made by the plaintiffs, to the amount of ment of the bills drawn on London by Drake 8000 dollars at any subsequent times, toties quoand Mitchel, the agents of J. and T. Robson re- ties, whenever the antecedent transactions were mitted bills on London, which were protested for discharged. It was a continuing guarantee. non-payment; and Drake and Mitchel claimed Ibid. from Edmondstor, under the letter of credit, payment of their bills on London. Held, that Mr. Edmondston was not liable for the same. Edmondston v. Drake and Mitchel, 5 Peters, 359. Nothing can be clearer, upon principle, than that if a letter of credit is given, but in fact no advances are made upon the faith of it, the party is not entitled to recover for any debts due to him from the debtor in whose favour it was given, which have been incurred subsequently to the guarantee, and without any reference to it. Ibid. 361. Every instrument of this sort ought to receive a fair and reasonable interpretation according to the true import of its terms. It being an engagement for the debt of another, there is certainly no reason for giving it an expanded signification or liberal construction, beyond the fair import of its terms. Ibid. 362. The cases of Russell v. Clarke's Executors, 7 Cranch's Rep. 69; 2 Peters' Condensed Reports, 417; and Drummond v. Prestman, 12 Action on a Commercial Guarantee. Wheat. Rep. 515; 6 Cond. Rep. 620, cited and | Held, if the plaintiffs below, by their endorse approved. Ibid. ments, were compellable to pay, and did after363. A party giving a letter of guarantee has wards pay the notes upon their dishonour by the a right to know whether it is accepted, and whe-maker, and these notes fell within the scope of ther the person to whom it is addressed means the guarantee, they might, without question, reto give credit on the footing of it, or not. It may cover the amount from the guarantors. Ibid. be most material, not only as to his responsibility, but as to future rights and proceedings. It may regulate, in a great measure, his course of conduct, and his exercise of vigilance in regard to the party in whose favour it is given. Especially it is important in the case of a continuing guarantee, since it may guide his judgment in recalling or suspending it. Ibid. 367. He who receives any note upon which third persons are responsible as a conditional payment of a debt due to himself, is bound to use due diligence to collect it of the parties thereto at maturity, otherwise by his laches the debt will be discharged.__Ibid. 368. L., at Memphis, Tennessee, addressed a letter to D. & Co. at New Orleans, stating that 364. If this had been the case of a guarantee N. & D. wished to draw on them for 2000 dollimited to a single transaction, it would have lars, saying, "Please accept their draft, and I been the duty of the plaintiffs to have given no- hereby guaranty the punctual payment of it." tice of the advances, acceptances or endorse- In a letter of the same date, to one of the firm ments made under it, within a reasonable time of N. & D., he says, "I send a guarantee for after they were made. But this being a conti- 2000 dollars. The balance I have no doubt your nuing guarantee, in which the parties contem- friend W. will do for you." N. & D. drew a bill plate a series of transactions, and as soon as the on D. & Co. for 4250 dollars, which they acceptdefendants had received notice of the accepted; and, after having paid the draft, they gave ance, they must necessarily have understood notice to L. that they looked to him for the mothat there would be successive advances, ac- ney. No notice was given by D. & Co. to L. ceptances, and endorsements, which would be that they intended to accept, or had accepted renewed and discharged from time to time; and acted upon the guarantee, before they paid there is no general principle upon which to rest, the draft. The drawers of the bill did not reimthat notice of each successive transaction, as it burse D. & Co. for any part of it. An action was arose, should be given. All that could be re-instituted to recover 2000 dollars from L., being quired would be, that when all the transactions under the guarantee were closed, notice of the amount for which the guarantors were responsible, should, within a reasonable time afterwards, be communicated to them. Ibid. part of the bill for 4250 dollars. Held, that although the bill was drawn for 4250 dollars, the guarantee would have operated to bind L. for the sum of 2000 dollars included in it, if notice of the acceptance of it had been given by D. & Co. to L.; but having omitted to give such notice, or that they intended to accept, or had accepted and acted on the guarantee, L. was not liable to D. & Co. for any part of the bill for 4250 dollars. Lee v. Dick, 10 Peters, 482. 365. A demand of payment of the sum advanced under the guarantee, should be made of the person to whom the same was made; and in case of non-payment by him, notice of such demand and non-payment should have been given in a reasonable time to the guarantors, 369. A guarantee is a mercantile instrument, otherwise they would be discharged from the and to be construed according to what is fairly guarantee. By the very terms of this guarantee, to be presumed to have been the understanding as well as by the general principles of law, the of the parties, without any strict technical nicety. guarantors are only collaterally liable upon the failure of the principal debtor to pay the debt. 370. If the guarantee stood alone, unexplained A demand upon him, and a failure on his part by the letter which accompanied it, it would unto perform his engagements, are indispensable doubtedly be limited to a specific draft for 2000 to constitute a casus fœderis. The creditors are dollars, and would not cover that amount in a not bound to institute legal proceedings against bill for a larger sum: but the letter which acthe debtor; but they are bound to use reasona-companied it fully justifies the conclusion, that ble diligence, to make demand, and to give notice of non-payment. Ibid. 366. An account was stated between the plaintiffs and Chester Haring, showing an apparent balance against Haring of 22,573 dollars; and at the foot of the account the plaintiffs gave a receipt for several promissory notes, payable at distant periods, dated on the same day with the account. The notes were drawn by C. Haring, and endorsed by Daniel Greenleaf. The receipt stated that "the notes, when discounted, the proceeds to go to the credit of this account." The notes were discounted, and the proceeds received by the plaintiffs, but, being unpaid, they were protested; notice of their non-payment was given to the endorsers, and they were afterwards taken up by the plaintiffs as endorsers thereof. Ibid. the defendant undertook to guaranty 2000 dol lars in a draft for a larger amount. The letter and guarantee were both written by the defendant, on the same sheet of paper, bear the same date, and may be construed together as consti tuting the guarantee. Ibid. 371. The decision of the court in the case of Douglass and others v. Reynolds and others, 7 Peters, 125, affirmed. In that case the court held, that a party giving a letter of guarantee has a right to know whether it is accepted; and whether the person to whom it is addressed, means to give credit on the footing of it or not. It may be most material, not only as to his responsibility, but as to future rights and proceedings. It may regulate, in a great measure, his course of conduct, and his exercise of vigilance Action on a Commercial Guarantee. in regard to the party in whose favour it is given. | been the consequence of attempts to subject this Especially it is important in case of a continuing description of commercial engagement to the guarantee, since it may guide his judgment in same rules of interpretation applicable to bonds, recalling or suspending it. This last remark by and similar precise contracts. Ibid. 186. no means warrants the conclusion that notice is 377. In an action founded upon a letter connot necessary in a guarantee of a single transac-taining this clause, "the object of the present tion; but only that the reason of the rule applies more forcibly to a continuing guarantee. Ibid. 372. The same strictness of proof, as to the time in which notice of the intention to act under the guarantee, is to be given to charge a party upon his guarantee, as would be necessary to support an action upon the bill itself, when by the law of merchants a demand upon, and refusal by the acceptors must be proved in order to charge any other party upon the bill. There are many cases where the guarantee is of a specific, existing demand, by a promissory note or other evidence of a debt, and such guarantee is given upon the note itself, or with a reference to it and recognition of it, when no notice would be necessary. The guarantor, in such cases, knows precisely what he guaranties, and the extent of his responsibility; and any further notice to him would be useless. But when the guarantee is prospective, and to attach upon future transactions, and the guarantor uninformed whether his guarantee has been accepted and acted upon or not, the fitness and justice of the rule requiring notice is not supported by considerations that are unwarrantable. Ibid. letter is to request you, if convenient, to furnish them (S. and H.) with any sum they may want, as far as fifty thousand dollars, say fifty thousand dollars. They will reimburse you the amount, together with interest, as soon as arrangements can be made to do it; and as our embargo cannot be continued much longer, we apprehend there will be no difficulty in this. We shall hold ourselves answerable to you for the amount:" Held, this was not an original, absolute undertaking, but a guarantee: that it covered advances only to S. and H. (who were then partners) on partnership account, and not advances to either of the parties separately, on his separate account; that the authority thus given by the guarantor was revoked by a dissolution of the partnership; and no advances made after a full notice of such dissolution, were within the guarantee; that the letter did not amount to a continuing guarantee for money advanced, toties quoties, from time to time, to the amount of fifty thousand dollars; but for a single advance of money to that amount: that when once advances were made to the amount of fifty thousand dol lars, no subsequent advances were within the guarantee, although at the time of such further advances, the sum actually advanced had been reduced below fifty thousand dollars, by the reimbursement of the debtors. Cremer v. Higgin 373. Instruments of guarantee, in commercial cases, should receive a liberal interpretation, a fair and reasonable interpretation, so as to attain the object for which the instrument is designed, and the purposes to which it is applied. Law-son et al., 1 Mason, 323. rence v. M'Almont et al., 2 Howard, 449. 374. A valuable consideration, however small or nominal, if given or stipulated for in good faith, is, in the absence of fraud, sufficient to support an action on any parol contract; and this is equally true as to contracts of guarantee, as to other contracts. Ibid. 452. 378. If upon a letter of guarantee, addressed to a particular person, advances are made upon the faith of the guarantee, it is the duty of the person so making the advances to give notice, within a reasonable time, to the guarantor, of the amount of the advances, and that reliance was placed upon the guarantee to ensure the payment; otherwise the guarantor is discharged from all responsibility. Ibid. 375. Where a mercantile guarantee is preceded by a recital, definite in its terms, and to which the general words obviously refer, the 379. Where money is advanced to a partnerrule of limiting the liability within the terms of ship under a guarantee, and the partnership is the recital, in restraint of the general words, ap-dissolved, and the debt then carried, at the`replies. Courts constantly refer to cases arising on bonds with conditions for the rule of construction, and apply it to commercial guarantees. Opinion of the court per CATRON, Justice. Bell et al. v. Brown, 1 Howard, 184. quest of the debtors, to their separate accounts, according to their proportion of interest in the partnership; and the creditor gives the partners separately a credit for such proportion, and discharges the partnership account, by carrying it to such separate account, and no notice is given thereof to the guarantor; the latter is discharged from all responsibility. Ibid. 376. Letters of guarantee are usually written by merchants, rarely with caution, and scarcely ever with precision; they refer, in most cases, to various circumstances, and extensive com- 380. If a creditor will undertake to give a mercial dealings, in the briefest and most casual new credit to the debtor, and thereby materially manner, without regard to form; leaving much to change the situation of a surety, and, a forto inference, and their meaning open to ascer- tiori, of a guarantor, the latter is absolved from tainment from extrinsic circumstances, and facts all responsibility, unless he has notice of, and accompanying the transaction, without referring becomes party to, the new transactions. Ibid. to which they could rarely be understood by 381. A guarantee of the notes of A cannot be merchants or by courts of justice. The at-applied as a guarantee of the notes of A and B. tempt, therefore, to bring them to a stand- Russell v. Perkins, 1 Mason, 368. ard of construction founded on principles not 382. The guarantee cannot be construed beknown or regarded by writers, could not do yond the plain and obvious import of its lanotherwise than produce confusion. Such has guage. Ibid. |