The claim itself is consideration enough validity of the undertaking. (Bildersee to support an undertaking upon a v. Aden, 12 Abb., Pr. N. S. and cases claim and delivery of personal prop-cited.) Nor is it necessary that the unerty. dertaking should express a consideration. It is not necessary that the property (Cases Supra, Laws 1863 Ch. 464.) In all

should be taken and retaken in order

In 1869, Jones and Harrison recovered a judgment against one E. Upon this

to sustain an action on the bond, cases the undertaking must accompany the taking and retaking may be the claim, and it becomes an effectual inclaimed and bond given directly. strument before there has been a delivery This was an action on an undertaking of the property. In this case the property in dispute consisted of iron water pipes, given in replevin. claimed to be the property of and in pos session of the plaintiff, the Rochester Water Works Company. The plaintiff being about to take proceedings to recover the possession of the property, the Water Works Company treated it as in the actual possession of the plaintiff, and brought an action against him to recover the possession thereof. The undertaking in question was given in that action, and the possession of the property remained undisturbed. The formal proceedings prescribed by the Code, where a d livery is claimed in an action to recover the pos

an execution was issued, and certain iron pipe involved in the replevin action was sold. This pipe was claimed by the Water Works Co., of Rochester, and it was agreed between the engineer of the company and one S., the agent of J. & H,

that it should remain where it then was and not be disturbed. After the sale of the pipe, the Water Co. went on and laid the same. It was then arranged between the Company and J. & H. that the Company should commence an action against J. & H., claiming a delivery of the pipe, and they did so, and the Company gave to J. & H. a bond and a summons and complaint, and the value of the property was fixed by stipulation, and it was also admitted that J. & H. had the property

actually in their possession, &c., &c. In

that action, J. & H. were successful, and then this action was brought on the undertaking, and defendants, who were sureties, set up as a defense that there was no consideration, and the bond was invalid as the property was never actually taken possession of by J. & H., and retaken by the Water Company.

The Court below dismissed the com

plaint.

H. R. Selden for respts.
W. F. Coggswell for applt.

session of personal property, were omitted. The object of such omission evidently was to obtain a determination of the ownership of the property without the expense and injury which would necessarily have attended an actual transfer of the possession thereof, first to one party

and then to the other.

The court below held, that this omission destroyed the character of the instrument as a statutory undertaking, and that it was void for lack of any consideration to support it.

We are of opinion that the court erred. It was competent for the parties to the action to waive the useless formality of a double replevy. They did so, and the rights and interests of the sureties in the undertaking were in no degree affected thereby, except that their liability was Held, No consideration is necessary to diminished by the saving of the fees and support an undertaking given upon a expenses of the sheriff, which would have claim for the delivery of personal property been incurred upon an actual replevy. pursuant to the Code, besides the claim The case does not show that any different itself. That is sufficient to uphold the result would have followed an actual re

plevy, than that which was accomplished boat D. R. Martin. He demanded in his

Opinion by Gilbert, J.; Mullin, P. J., controversy between the parties in the and Smith, J., concurring.

Mere indulgence to the principal will not work a discharge of the surety; to have such an effect the act must be legally injurious, or inconsistent Appeal from the Circuit Court of the with the legal rights of the surety. United States for the Eastern District of This action was brought upon a promNew York. This suit was brought by isory note made by one M. as the princiBarney, the libellant, to recover damages pal debtor and by the defendant's intestate for his wrongful eviction from the steam- as his surety. Defendants claimed that

their intestate had been discharged from liability as surety.

The referee before whom the case was tried found that M., the maker, after the note was due went to the holder with the

is remitted to his right to sue upon the original debt.

To a declaration for goods sold, etc., the defendant pleaded:

1. That he never was indebted as al

money and offered to pay it, and the lat-leged. ter, by his wife, whom he had authorized

2. That before action he satisfied and

to act for him, declined to receive it, giv-discharged the plaintiffs' claim by delivering as a reason that he had no use for the ing to the plaintiffs three promissory notes money, and requested M. to keep it, and whereby the defendant and Henry Smith

that M. became insolvent.

R. M. Loomis, for respt.
L. L. Bundy, for applts.

jointly and severally promised to pay to the plaintiffs or their order three several sums of money, in full satisfaction and discharge of the plaintiffs' claim, which notes the plaintiffs accepted from the de

Held, That the surety was not discharged by the act of plaintiff's intestate as there was no binding agreement to ex- fendant in full satisfaction and discharge tend the time; that a mere indulgence as aforesaid.

су

will not work a discharge. An act 3. That after the accruing of the plainto have an effect must be legally injurious or inconsistent with the legal rights of the surety, such as an agreement with the principal debtor extending the time of payment or in any manner changing the contract made by the surety. 45 Barb., 214; 3 N. Y., 446; 15 J. R., 433. A mere omission of duty on the part of the creditors will not release the surety unless the surety requests the performance thereof. If the surety had requested plaintiff's intestate to sue and he had refused to do so, the surety would have been discharged, if the negligence had produced the injury. 25 N. Y., 552; Lewis v. Van Duser, 25 Mich., 351, distinguished.

Judgment of General Term affirming judgment for plaintiff affirmed. Opinion by Church, C. J.

BANKRUPTCY. COMPOSITION. ENGLISH DECISIONS -COMMON PLEAS DIVISION.

Edwards, et al. v. Hancher.

Decided November 12, 1875.

tiffs' claim, and before action, the defendant, being a debtor, unable to pay his debts, petitioned the Court of Bankruptcy for the liquidation of his affairs by arrangement or composition, and such proceedings were thereupon duly had, that the creditors of the defendant, by an extraordinary resolution, resolved that a composition of 3s. in the pound should be accepted in satisfaction of the debts due to the creditors from the defendant, and that such composition should be payable as follows: by three instalments of 18 each, the first in three, the second in six, and the third in twelve months from the date of the confirmation of the said resolution, and that the security of Henry Smith should be accepted for the whole of the said composition and the receiver's and solicitors' costs, to be given in the joint and several promissory notes of the defendant and the said Henry Smith, and a statement showing the whole of the assets and debts of the defendant, and the names and addresses of the creditors to whom such debts were due, includ

When a composition in bankruptcy ing the names and addresses of the has been effected by giving the plaintiffs and the amount of the debts due notes of a third party, and the notes to them and claimed in and by the declaare not met at maturity, the creditor ration, was produced at the meetings at

At the trial before Brett, J., at the sittings at Westminster, in Hilary Term last, the debt was admitted, and the defendant in support of his second and third pleas, put in the following resolutions (to which the plaintiffs were assenting par ties), agreed to at a meeting of his creditors under the liquidation on the 14th of July, 1874:

which the resolution passed. and the said the 24th day of July, 1874, and payable resolution and statement were presented at three, six, and twelve months respectto the registrar and duly registered, and ively, amounting in the aggregate to the the said composition was duly paid and sum of £13 2s 6d, being a composition of secured to the plaintiffs, pursuant to the 38 in the pound on our debt of £90 17s 3s said resolution, and all conditions had been fulfilled necessary to entitle the de- 11d, resolved to be accepted at a general fendant to be discharged from the said meeting of creditors held on the 14th day debt by the resolution and the perform- of July, 1874, and in discharge of our ance thereof. Issue thereon. debt. Edwards Brothers." These notes were made payable at the National Provincial Bank of England, at Birmingham, where the defendant kept no account. On the 29th of October, the first note became due, and was presented at the bank, but not paid. Without making any application to the surety, the plaintiffs on the 30th issued the writ in this action, claiming the original debt. On the part of the defendant it was contended that the acceptance by the plaintiffs of the promissory notes with a surety pursuant to the resolution, and giving the receipt, operated as satisfaction of the original debt, and that the plaintiffs were bound to call upon Smith, the surety, or might have compelled the trustee to enforce payment of the instalments. The learned judge directed a verdict to be entered for the plaintiffs, giving the defendant leave

1. That a composition of 3s. in the pound shall be accepted in satisfaction of the debts due to the creditors from the said John Hancher.

2. That such composition be payable as follows, by three instalment of 1s. each. The first instalment in three months, the second in six months, and the third in twelve months from the date of the confirmation of this resolution.

3. That the security of Henry Smith, of Muntz Street, Birmingham, glass cutter, be accepted for the whole of the composition and for the receiver's and solici

tor's costs.

4. That L. J. Sharp, of Birmingham, be appointed trustee.

to move.

Held, The question is whether the plaintiffs are entitled to maintain their action, their right to which was suspended whilst the conditions bound them; that it was the payment of the composiIt was further proved that on the 24th tion, and not the mere resolution to acof July, 1874, three joint and several cept a composition, which is the essence promissory notes for £4 10s 10d each of this transaction; it was that which was were made by the bankrupt and Smith, and delivered to the plaintiffs, who thereupon gave a receipt in the following form: "The Bankruptcy Act, 1869." In the County Court of Warwickshire, holden at Birmingham.

intended to be accepted by the creditors in satisfaction and discharge of their claims, and the non-payment of the resolution, according to its terms, remitted the creditor to his rights upon the original debts. The fact that the notes were enIn the matter of John Hancher. dorsed by a third party does not affect the Received of Mr. Luke J. Sharp, trustee of question. Neither is the plaintiff bound this estate, three promissory notes dated to resort to the summary process of the

bankrupt court to enforce the composi- justified in reversing a judgment upon a

tion.

Rule discharged.

fact which a judge or referee had expressly refused to find, and which was not con

Opinions by Coleridge, C. J. and Grove clusively proved; that the remedy of the and Archibald, J. J.

party wis by motion to compel a finding, and a denial of such a motion would be reviewable in this Court.

Also held, That defendant was justified in regarding the broker as plaintiff's agent, and as clothed with full authority to act for plaintiff in procuring, modifying or cancelling the policy, and his acts. in respect to the policy are the same as if done by plaintiff. done by plaintiff. 106 E. C. L. 381; 13 Wend., 518; 21 id. 279; 35 Barb., 463 ; Story on Ag., §§ 134-5, 451--2

Upon the trial evidence was given by defendant of a custom among those engaged in the insurance as to the endorsement of any changed or increased rate before the risk is considered taken.

Held, That this evidence was competent to explain the conduct of the parties, and how they regarded a verbal arrangement for an increase of premium, and the acts necessary to be done to consummate it.

This action was brought to have the cancellation of a policy of fire insurance set aside and to enforce the policy. It appeared that the policy was procured by a broker employed by the plaintiff. By one of its provisions it was optional with the company to cancel the policy. Upon notice of the issue of the policy it directed its agent to raise the rate of premium one per cent. or to cancel the policy. Subsequently the broker returned the policy to defendant with instructions to cancel it, and defendant did so. The case was tried before a judge without a jury, who found as a conclusion of law, that the return for cancellation, although by mistake and permitting the policy to remain as cancelled in the possession of defendant's BILL OF LADING. COMMON CAR

agent until after the fire, was enough to
defeat the action. There was no finding
of fact as to the mistake. A judgment
was directed dismissing the complaint.
Upon a settlement of the case the judge
was requested, but refused, to find that
the policy in suit was returned for can-
cellation by mistake.

Samuel Hand, for applt.
James Emott, for respt.

Held, That this Court would not be

Also held, That it was proper to receive in evidence entries made upon the broker's book, as bearing upon the fact of a mistake, and upon his credibility and that of his clerks.

Judgment of General Term affirming judgment dismissing complaint, affirmed. Opinion by Church, C. J.

RIER.

SUPREME COURT OF PENNSYLVANIA. Elkins v. The Empire Transportation Company.

Decided March 6, 1876.

A shipper or his assignee is bound by the value of the goods written in the bill of lading.

Where the written and printed parts of

a contract are at variance the written must govern.