The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-24


!sdse and assent u The b.ak. and for thu mu tual
benefit Of himself AM OF the bank. Tho guarantee
s0ecuted b. Abe bank recites that Mumlord beinx
~. bed e the bank had proposed y 10 TO be in
for the Haspose Of Supplying tho flnds OF TIE anssx
ipselments upon bis indebtedness to the bank upon
receiving rom the bank their guar antce uf sbo said
and Interest thereon to enable him to
81 ct tse sale. and that Mumfurd In pursuance Of
that arrangement, bad executed an assign meot OF
the hoDd and mortgage 10 the Trust Company with
covenant guN aDteel the COLE ton u the prin 81
pal ar interest, and then in c6nsidera.i,n Of the
premises, And Of one dollar pal, BY the Trus: Com
final collection Of ,he said instaiments. ADD Of
the interests thereon, and reserves 70 Itself the
right, upon any defaul, IN payment Of pr1ncipal
ipter It, TO pay the amount then unpaid to the Com
papy, and to have be bond AND mortgage assigned 70
The bank If thebank soelecf The mortgaged premises
ere sold on foreclosure, and ON Anal sale on 24th
November, 1861, only realized $3.50, which was
their fair value on the last mentioned day. Ingcso
was iDsolvent ano removed from the State, AID
nothing could be collected from him. This bank is
called upon TO fulfil ts guarantee, and insists that
IL had no legal capacity to make such
guarantee and that u 10 not tbs Yeore liable ii.
From this statement it is plain that Mumford held
sbe bond end mortgage and arranged with the bank
to conv,rt it into money tor the benefit Of the bank,
and to apply the money 70 be received TO pay his debt
to the bank, and that in pursuance VI this arrange
ment communicated to the Trust Company he as
signed the bond and mortgage to the company,
anu the bank at the same time guaranteed 70 the
company the payment OF the bond and mortgage,
or Of the six first instruments ON it, and that Mum
ford received the money from the Trust Company
n applied tie proceeds 10 the payment OF his debt
10 the bank. II MnmiDrd had assigned the bond and
mortgage to the bank, and the bauk hid assigned
II EN- 10 the company, aud guaranteed the pay
ment, IL did, Is Is conceded that the bank would
have been table, Tho only difference IL that the
enc transfer from Mumford TO the bank that would
hneu NOE v in that WA tfoA md
Mumtord, to simplify the transaction, assigned di-
recty to the company. This was mere matter Ut
form in conveyancng, and neither the one form nor
the ether can be considered In any degree as an at
tempt to enlarge the franchises Of the bank. The
mtasnie Of q franchise il never determined by i'm.
material forms. The question Always IL what power
or capacity has been gwen, not whether the power
IL exercised in particular form. In substance the
bank had an interest in the bond and mortgage
the arrangement made between 1t and Mnnf0rd,
that he should assign the bond and mortgage for
their bel assign them and apply the proceeds TO
pay his debt to Them gave them such an interest in
this bond and mortgage that to some extent the
bond and mortgage were the property Of the bank.
1t was agreed to he theirs when i, was agreed that
proceeds should be theirs; and when this agree.
Mcnt was carried out, and became executed CON-
tract, IL made the bond and mortgage as much to
have been theirs by relation during inc process Of
completing the arrangement as II there had been an
express contract, or a sufficient consideration to
assign the bond ana mortgage directly to the bank
that the bank might assign to the company.
This was the only question much argued in the case
most of the others were waived. II was commended
that In some respects the complaint set forth not
facts, but the evidence Of facts only II the facts
stated are such that if they were found ~ stated
the plaintiff must recover by operation Of Law, then
the plaintiff has set forth sufficient cause Of action
So when the plaintiff alleges the execution Of the
guaranty by the bank under its seal, and the qua
rantee reciies the consideration on which II was
executed, and that il lawful and sufficient consi
Hora fiorf hot "a E,rie A ok
Of certain evidence from which the law draws con-
cusion of fact il In effect astatemeut OF that fact;
but statement Of evidence from which lhe law
would not draw conclusion of fact, bat which
alhc ugh il be 50 clear that jury ought to Ind only
ore way, may not be sufficient in pleading. SO Il
might be that it would not in pleading be sufficient
sie set sail, and on The same day, without encon-
tcyinc any storm or casualty, f0undersd at sea,
although jury would be bound, Oh snch evi lepse,
to fnd that she was unseawofthy. In pleading it
might be Insufficient because by possibility the ship
still was seawortby wien she left her port None
Of the objections to what called evidence Of facts
seem TO be az clear as the case supposed. Yet
In such case, may be doubtful whether the proper
remedy lie by demurrer, when the party has more
appropriate remedy by moving to make the pleading
more definite ard certain. The Judgment appealed
fiom should be affirmed, with costs.
The Mayor, S'c, Of Vsao York, rs. Comp6dl and
othos- Clarke, There are two eausea Of de-
Goes not allese that tho plaintiffs demanded pay
ment Of the rent. 2. That it does not as q
notice Of an intention TO re.cnter. ]. This is pro
ceedng under. the statute q i. g., sos, sec. 30)
ment for the recovery Of devised premises for the
Don.pay Ment OF rent the service OF the declaration
shall be deemed and stand instead Of a dcman
DC. 2. With regard to the second objection, M
ticc Of reentry IL necessary by common Law, or by
statute; except where there is snficency OF goods
and chaftes on the premises for the satisfaction Of
the rent, the act OF lsAG requires that fifteen days
notice, in whiting Of the intention to re- enter must
this provision Of the act Of 1916 applies to case
wherc the lease was executed before it was passed,
(ste Williams vs.. Potter, 2 Bar. s. G. r., $3.50 be-
cansc the face cf the complaint it is evident that
there was net spfhcicncy Of goods TO satisfy the
demand. 1t ia expressly alleged that the premises
consisted OF "a water lot, vacant ground, and soil
under wafer" After such an allegation TO adj that
there was not sndiciency Of go ds on the premises
to satisfy the demand seems TO be essary; sid
II Is possible. II made, might have Induced some
members Of The profession, ii the defendants hap.
pened to employ such, TO move 70 have 1t stricken
out as Teduncaat, with $40 costs Of the motion.
think the complaint In all respects sufficient and
that the order at special term should be affirmed
with costs.
Hasiy rs .jeaes.-- Woodruff, J.-T,lat part OF the
an wcr which purports' 70 get up second deeoce,
does not tenuel any material issue. This Is mani
fest, and would alrear 50, think, 70 auy p'eader
who, unCer our former system Of pleading, hp1 at
tempted to reply to IL aud is not icss when aacr
err code il Is iakep denied without replication
Upon such denial no material issue would DC pre-
serted. 1t IL entirely co1sieent with every fart
stated in TIL complaint, uE,ess the words without
loirs employed or Icing under any obligation ~ to
Do import denial Of the contract alleged, which
think they do not, Ion tue plag'it has not avegrsd
rs cement go 70 do,' de-, do what the defend
ants say they d'1 do.
But ii This patt of tie answer docs imort de-
NAL Of tic agretment alleged theD Il Is lad for tnat
yoIy f,aaog. defendant canuot IN the same plea
deny III agreement alleged and set NJ perfcrmanle,
or Is'eaes OF satisfaction, for matter of avoidance
always either IN terms OF BY implication admits tue
trth of tie alter avoided.
Again, sur osc TIE plai.tif shold ~ 10 tiia al
ai,tlpa thag the defendants di4, without being en-
lletsd q being al aer any ,iaa 80 % AZ, tiIecs
tie gtly hsr1aace SGT ~ IN this p8rt d The answer
lie may ntyetthtless a,siet and show th9t the &c
,eI 1arls MADE and broke the agreement alleged iii
tho {, rvl1i4t.
20 nft meag 70 hold, upon this occasion, hat y
,eerdeut calnot deny ghe making 81 al agrsemcn',
40 II ar.ihtf distinct delenee AYR The doing Of