Majority
p. 370COURT OF APPEALS. Robert Coleman, respondent agt. Aaron H. Bean, appellant. September Term, 1866.
Headnote
In an action upon an undertaking given in an attachment suit, after verdict and judgment in the latter suit, the defendant—the surety in the undertaking—cannot introduce testimony on the trial to show in contradiction of the recitals in the undertaking, that no application had been made for the discharge of an ■ attachment in the action in which the undertaking was entitled, and that no attachment had been issued or granted.It is not essential to the validity of the undertaking that the plaintiff should compel its execution by actually suing out an attachment and making a levy.
It is competent for the parties to the action to waive, if they choose, the issuing of an attachment and a seizure of property under it, and for tho defendant to give, and the plaintiff to accept, in consideration of the waiver, such an undertaking as the defendant would have been required to give in an application to discharge an attachment actually issued and levied.
The fact that the defendant has put in an undertaking, which recites that an attachment had been issned, and that he was about to apply for its discharge, is conclusive evidence of such waiaer. It is enough that the undertaking is binding between the principal parties, under such circumstances, to hold the sureties.
Where such an undertaking has been procured by the agent of the plaintff, and the plaintiff having received it upon a valid legal consideration, and being ignorant of any false or fraudulent representations alleged to have been made by his agent in obtaining the undertaking, and in no way responsible for it, such fraud cannot be set up to deprive him of the benefit of the undertaking.
Appeal from a judgment of the court of common pleas
p. 371
of the city of Hew York, affirming a judgment in favor of the plaintiff, upon the decision of a single judge.
On the trial in Hay, 1859, before Judge Beady, without a jury, the plaintiff put in evidence an undertaking in writing, bearing date the 21st December; 1857, entitled in an action in the supreme court, wherein the plaintiff in this action was plaintiff, and the Galveston, Houston and Henderson Railroad Company was defendant, and executed by the defendants herein under their hands and seals. The body of the undertaking was in these words: “ An attachment having been issued in the above entitled action, to the sheriff of the city and county of Hew York, and the above named defendant having appeared in such action, and being about to apply to the officer who issued such attachment, or to the above mentioned court, for an order to discharge the same, we (naming the defendant herein) do hereby pursuant to the statute in such case made and provided, in consideration of one dollar to each of us in hand paid, undertake in the sum of $1,300, that we will on demand, pay to the above named plaintiff, the amount of the judgment which may be recovered against the above named defendants in this action, not exceeding the above mentioned sum.”
It was admitted at the time of the execution of said undertaking, the action in which the saméis entitled was pending, and that the defendant in said action had appeared therein by attorney, and that the plaintiff subsequently recovered judgment therein for $775.28, and demanded payment thereof before this suit was brought upon said undertaking.
The plaintiff having rested his case, the defendant Bean, offered to prove that the Galveston, Houston and Henderson Railroad Company, fraudulently induced the defendant in this action to execute the undertaking, by representing that in said action a warrant of attachment had been issued to the sheriff of Hew York against the property of said company as a foreign corporation, and that the sheriff had seized a large amount of property, and that in order to release it and restore it to the possession of the company, it was necessary that the defendant should execute such undertaking;
p. 372Mrst. Although the instrument on its face purported to have heen executed in pursuance of the statute, and the complaint alleged that it was executed and delivered as a proceeding in-the action; in view of the facts offered to be proved, there was no authority to take or receive such an undertaking, and as a statutory security it was a nullity. XJnder the 240th and 241st sections of the Code, such-an undertaking could only be given on an application to discharge an attachment against the property of the defendant; and even when so authorized, the undertaking should have been to the.court, or the officer by whom the attachment was issued (Code, §§ 240, 241). Second. The defendant was not estopped by the recitals in the undertaking from proving-that no attachment had ever been granted or issued, and that no application had been made-to discharge an attachment against the company named in the undertaking. 1. The plaintiff knew that he had not applied for any attachment, and (so far as the evidence shows) that he had no intention or design to apply for such attachment. 2. The plaintiff, therefore, was not in any respect misled by the statements in the undertaking, and did not do any act or take any steps in reliance thereon. (Cadwell agt. Colgate, 7 Barb. S. C. R. 254; Dezell agt. Odell, 3 Hill’s R. 215 ; Walker agt. Paine, 31 Barb. R. 213), 3. In all the oases in which it has been held that the obligor was estopped by the recitals in the instrument, either the obligor has h'ad the benefit of the instrument, and secured the advantages which the instrument was intended to secure, and has retained such benefit or advantages, or the obligee has relied upon "the faith of the facts recited, and upon the delivery of the security, and has been in
all of which representations the defendants offered to prove were false.
The defendants also offered to prove that the pecuniary consideration expressed in the undertaking, was not paid or agreed to be paid.
The court, on objection, excluded the testimony offered, and the defendants excepted.
The judge found that the undertaking was made and executed by the defendants, under their hands and seals, and found also the other facts above stated, and decided that the plaintiff is entitled to recover of the defendants the amount of his said judgment, with interest, to which the defendants’ counsel excepted.
Judgment was entered upon said decision in favor of the plaintiff, and affirmed on appeal to the general term, and the defendant Bean has appealed to this court.
Btjbbill, Davidson & Btjbbill, attorneys, and
John E. Btjbbill, counsel for appellant.
p. 373such reliance induced to do, or to refrain from doing something which he otherwise would have done. An examination of the authorities relied on by the court below) in its opinion, and those cited by the opposing counsel, will show this to be the case. 4. The distinction between the present case and cases in which an obligor has been held to be estopped by recitals, is shown in the following: Cad-well agt. Colgate ( 7 Barb. 254 ); Brown agt. Miller (6 SB, 496); Homan agt. Brinkerhoff (1 Benio, 184). 5. Even if it be held (as some cases hold) that where an attachment has in fact-been issued, although irregular, the defendant, who has given a bond, cannot dispute its regularity or validity; and that where property has been seized under process, although invalid, and has been delivered up, the defendant is in like manner precluded from disputing the validity of such seizure; still, when, as in this case, the entire statement was a fabrication, and the plaintiff knew that no attachment had been issued or granted, and that no property had been seized,. we submit that there is no principle upon which an estoppel can rest. 6. Again, under the evidence offered and excluded, the statements and representations set forth in the written instrument, were not the statements and representations made by the defendant to the plaintiff, but were in fact the reverse ; that is, they were statements and representations made on behalf of the plaintff to the defendant, and which the latter believed to be true, while the former knew them to be false. If, as we offered to prove, the defendant, in ignor&nce of the truth, had been induced by fraud to subscribe an instrument containing false recitals, known to be so by the party who received the instrument, there can be no estoppel (Mead agt. Brown, 32 N. T. 279). Third. The court erred in excluding the evidence offered by the defendant to show that he was induced to execute the instrument by means of false and fraudulent representations and statements, in regard to the issuing of the attachment and the seizure of the property by the company, and which were introduced as recitals in the instrument. I. It was a part of the offer that the recitals in the undertaking were false, and •made with a fraudulent intent. ■ II. The representations were material, and had (as the offer states) a controlling influence on the defendant, and were the means of inducing him to execute the instrument. III. Since the re-organization of our judicial system, it is competent in all cases and with respect to all classes of instruments, to show that their execution and delivery were procured by fraud. TV. The court below, as its opinion, concedes the proposition in this regard contended for, and seems to admit that had these representations and statements been made by the plaintiff personally, the defense would have been established, but justifies the rejection of the evidence on the ground, erroneously assumed, that the plaintiff neither in any way participated in them, or knew of them having been made. In this the court erred.
1. The undertaking was not delivered to the plaintiff, but to the secretary of the company; and in procuring its execution and delivery, he acted for the benefit and on behalf of the plaintiff.
There must have been some negotiation between the plaintiff and the secretary about the undertaking. It was for the benefit of the plaintiff, and no one else was interested in procuring it. The secretary was not the agent of the defend
p. 374ant, and there is no pretence that the defendant had any interest in the matter. Under the offer made, the company had no interest to give or procure the undertaking ; and in the absence of the evidence, which it was in the power of the plaintiff to furnish, and which he did not furnish, and which he prevented the defendant from furnishing, in regard to the circumstances under which the undertaking was obtained, the presumption and legal inference is, that the secretary in procuring the' certificate, acted as the agent and on behalf of the party for whose benefit the security was obtained. 2. But aside from this, the plaintiff at the time he recived the instrument, which recited the same statements made by the secretary, knew that the statements so recited were false; and he also knew from the instrument, if in no other way, that the defendant executed it in the belief that an attachment had been issued, and that an application had been made to the court to discharge the same. And he knew also, from the instrument, that the defendant executed it in pursuance of the statute. And he knew that these representations were false, and that there had been no intent or design on his part to comply with the provisions of such statute. The circumstances under which the plaintiff took the instrument, in connection with the recitals, all of which were known to the plaintiff to be false, are sufficient to charge the plaintiff in respect thereto. 3. The plaintiff, by accepting the instrument with such false recitals, and knowing them to he so, in effect made the same statements and representations which are embodied in the instrument. 4. Had the evidence offered in respect to the falsity of the statements in the instrument been received, the fact that the plaintiff accepted it with false recitals, known to him to have been false, and shown, according to the evidence offered, to have been made with a fraudulent intent, would have been sufficient to have carried the cause to the jury on the point whether the plaintiff was connected therewith, or participated therein. V. As before remarked, the court tried the cause upon the theory that the recitals in the undertaking, which defendant'sought to falsity, were statements, and representations made by the defendant to the plaintiff, and on the faith of which the plaintiff acted; whereas in fact, as we offered to show, such statements and representations were made to the defendant by and on behalf of the plaintiff, and were in fact false and fraudulently made. We offered to show that we had been defrauded, and the court prevented us from so doing, on the assumption that we were the guilty party, and were, therefore, estopped. ' It is very clear that the scheme was concocted between the plaintiff and the secretary of the company. The plaintiff wished to secure Ms claim, and to procure the defendant and his co-obligor to become responsible for it. And fbr this purpose it was represented that an attachment had been issued against the company, and its property seized, and that the interests ,of the company required that ■ the attachment should be discharged and the property released, and that an undertaking was necessary ; and the defendant, for the purpose of relieving the company from their fancied embarrassment,.signed the bond. Had the defendant been permitted, he doubtless would have been able to have exposed the whole fraud; hut we were precluded from so doing, and the principle (for the first time, as we think) established, that an obligor who executes an instrument in which the obligee has fraudulently made false recitals, is estopped from showing such fraud. Fourth. There was no consideration foi,' the undertaking; and under the facts offered to be proved in connection with the want of consideration, plaintiff was not entitled to recover.
p. 3751. The instrument was not- a statutory obligation, and hence no consideration can be implied. 2. There was no evidence to show any consideration, in fact; and the defendant offered to show that there was no consideration. 3. The defendant was not estopped from showing a want of consideration, by the recital in the instrument of the nominal consideration therein expressed. 4. But even if the defendants were precluded from denying the payment of the nominal consideration expressed, still he was not liable on the undertaking, for the reason that its execution and delivery had been procured by fraud. An actual consideration would not have destroyed the defense of fraud; much less can the recital of payment of a nominal consideration have such effect. We offered to show both an entire absence of consideration, and fraud in procuring the execution of the instrument; and we think the court erred in excluding the evidence. It placed its decision on the ground of estoppel, overlooking the point that there is no estoppel where the party in whose behalf the estoppel is claimed has been guilty o£ fraud. Fifth. The judgment should be reversed. First. The execution of the undertaking, as set forth in the complaint (FoV. 30), having been admitted in open court, and the same having been read in evidence, without objection, and the breach of the obligation being shown, the plaintiff was entitled to judgment for the amount claimed. And there being no specific objection to any conclusion of law or fact found by the court, the judgment must be affirmed, unless the defendant can show that the court below erred in the exclusion of some material and competent evidence affecting the rights of the defendant. Second. The defendant’s offer to prove on the trial, what statements the secretary of tlie Galveston, Houston and Henderson Bailroad Company had made to the defendant Bean, concerning the attachment and the proceedings under it, when the defendant executed the undertaking, was properly overruled. I. There was no pretense of collusion or privity in the matter, on the part of the plaintiff. The Galveston, Houston and Henderson Bailroad Company and their officers, were in hostility to the plaintiff. The plaintiff had no participation in the statements made by their secretary to that defendant, or any knowledge of then' having been made. They were res inter alios acta. Whatever may be the rights or remedies, or securities, between the railroad company and the defendants, the circumstance alleged could not in any manner affect the defendant’s liability'to the plaintiff in this action.
Mathews & Swan, attorneys, and Albert Mathews, counsel for respondent
H. It was totally immaterial to the defendant whether these particular statements were true or false. He meant to give his undertaking precisely as it was given, to effect the sole object of accommodating the Galveston, Houston and Henderson Bailroad Company, by enabling them to use it for precisely the purpose, and in precisely the way they did use it. He did give it. They were the best judges of its necessity and propriety. They meant by this undertaking, to give the plaintiff security for 'his debt. They did so, and had the fruits of it. They were satisfied, and are silent. Assuredly, it is no excuse for the defendant’s refusal to perform Ms undertaking, to say now to the plaintiff that the Galveston, Houston and Henderson Bailroad Company mis-stated to him, the defendant, the
p. 376particular circumstances and motives which led them to ask him for this accommodation. Courts refuse to recognize such a plea in cases where the defense is much more meritorious. (Bank of Chenango agt. Hyde, 4 Cow. R. 573 ; Bank of Rutland agt. Buck, 5 Wend. R. 66; Mohawk Bank agt. Corey, 1 Hill’s R. 513; Spencer agt. Ballou, 18 [4 Smith] N. Y. R. 327; Van Deuzen agt. Howe, 21 Id. 531; Me Williams agt. Mason, 31 Id. 294.) III. Inasmuch as the circumstances offered did not relate to the execution of the undertaking, they were technically inadmissible in this legal action to impeach it. (Church agt. HUls, 8 Cow. R. 290 ; Belden agt. Bams, 2 Hall’s S. C. B. 447; Osterhout agt. Shoemaker, 3 Hill’s R. 516.) Third. The defendant’s offer to prove on the trial the non-existence of the facts recited in the undertaking, relating to the attachment and proceedings thereon, were properly overruled. Such evidence would not have been competent to overcome the recitals in the defendant’s undertaking. I. By executing this undertaking under his seal, the defendant has estopped himself from impeaching its validity by disproving any fact therein recited, which may be material or necessary to sustain it. There being an entire absence of fraud or duress on the part of the plaintiff, and there being no pretense of any mistake in the execution of the undertaking, and there being no claim that it was executed contrary to law or good morals, or public policy; the recital of tie facts concerning the attachment proceedings, was conclusive evidence thereof in this action on the instrument between the parties. This is believed to be an elementary principle, illustrated by innumerable cases, where it has been applied under a great variety of circumstances. (See 1 Greenleaf’s Evidence, § 23; 1 Starkie’s Evidence, p. 343; also 3 Cow. & Hill’s Phil, on Ev. p. 1442.) 1. Upon this principle, the recital of a lease in a deed of release, is held conclusive evidence of the existence of the lease. (Carver agt. Jackson, 4 Peters’ U. S. R. 83; Crane agt. Morris, 6 Id. 611.) 2. Likewise in a suit upon the bonds of a county, reciting facts, showing them to have been issued according to law, the obligors were held estopped from proving the contrary (Moran agt. Miami Co. 2 Black’s U. S. R. pp. 723, 731). 3. And where an agreement to pay for the .use of a patent, recited that the plaintiff was the inventor, it was held conclusive evidence thereof, and could not be denied or 'contradicted (Bowman agt. Taylor, 2 Adol. & Ellis’ R. 278), 4. So the obligor in a bastardy bond was held estopped from proving contrary to the recitals therein, that the child in question was born in another town, and so not chargeable to the obligees (Falls & Smith agt. Belknap, 1 Johns. R. 487).. 5. ' And in a suit upon a bond reciting the non-residence of a debtor, and given on the discharge of property from attachment against him, the obligors were held 'estopped from disproving the fact of non-residence. (Haggard agt. Morgan, 4 Sandf. R. 201; Same case on appeal, 5 [1 Seld.] N. Y. R. 428.) 6. So also where a replevin bond recited its being made at the commencement of the suit, it was held the surety was estopped from showing the statement false, for the purpose of defeating a recovery on the bond (Decker agt. Judson, 16 N. Y. R. 439). 7. And where an undertaking on an appeal recited the date and amount of the judgment, the undertakers were held estopped from showing the facts otherwise (Levi agt. Dow. 28 How. Pr. R. 217). 8. There are numerous apposite cases in other states, which are very explicit upon this precise point. A few are here cited. (See Sumner agt, Glancy, 3 Black. r. 361; Trimble agt. The State, 4 Id. 435; also 8 Id. 258; May agt. Johnson, 3 Indiana R. 449'; Guard agt. Bradley, 7 Id. 600 ; Allen agt. Luckett, 3 J. J. Marshall’s
p. 377R. 164; Kellogg agt. Beecher, 4 Id. 665; Stockton agt. Turner, 7 Id. 192; Stow agt. Wise, 7 Conn. R. 214; Hunter agt. Miller, 6 B. Munroe’s R. 612 ; see also cases cited by Judge Hilton, in opinion, case, p. 17.) n. It was wholly immaterial to the defendant, under the circumstances of the case, whether the attachment had issued and levy been made under it, or not. If the evidence had been competent it would have been irrelevant, and could not havb affected the issue. 1. The undertaking besides being under seal, and reciting the attachment proceedings, and that it was made pursuant to statute, also recites apecuniary “ consideration of one dollar,” to the defendants “ in hand paid.” This alone was a sufficient consideration to sustain the undertaking as a valid instrument, irrespective of the seal and the other recitals. It was, either at common law or under the statute of frauds, a valid promise “ to answer for the debt, &c., of a third person.” (Douglass agt. Howland, 24 Wend. R. 35; Bayne agt. Ladue, 1 Hill’s R. 116; Thompson agt Blanchard, 3 Comst. N. Y. R. 341; Doolittle agt. Dininney, 31 N. Y. R. 350.) 2. The cases cited and relied on by the appellants (see 1 Benio, 184; 7 Barb. B. 254), .where property had been taken by a trespasser acting under a void process, and where bonds had been given to release such property, have no application to this case. In those cases the bonds were void, as procured by duress on the part of the obligee. Here the very offer of evidence involves the admission there was no duress whatever, either lawful or otherwise. 3. If there had been no attachment and no seizure of goods, and no application to discharge the attachment, then tlie conclusive presumption of law would be, under the evidence in this case, that the undertaking was not delivered to “ any court or officer,” but in the first instance directly to the plaintiff, and was, therefore, a valid contract made directly between the defendant and plaintiff. (Acker agt. Burall, 21 Wend. R. 605; Same agt. Same [on appeal], 23 Id. 606; Bing agt. Gibbs, 26 Id. 510; Winter agt. Kinney, 1 [Comst.] N. Y. R. 365; Kelly agt. McCormick, 28 [1 Tiff.] N. Y. R. 321.) Fourih. The offer to disprove the considerations expressed in the undertaking,
4. If there had been no attachment, and no seizure of property under it, and consequently no duress or compulsion used by plaintiff in procuring the undertaking, then it was a valid obligation as a voluntary agreement (although for only a nominal consideration), made by the defendant on the request of the G. H. and H. B. B. Company, for the use of the plaintiff. The usual consideration of a surety’s bond or obligation, is merely the request of his principal for his own benefit, and the acceptance of the instrument by the obligee. A surety does not generally receive or expect himself to receive any direct beneficial consideration from the creditor. The actual consideration under such circumstances, passes between the original debtor and the creditor. There was no pretence in this case of the absence of a sufficient and satisfactory consideration between the G. H. and H. B. B. Company and the plaintiff (Case, fol. 37).
5. If there had been no attachment and no seizure of property, and the G. H. and H. Baihoad Company had volunteered to give this undertaking, and the plaintiff had accepted it in lieu of an actual seizure of property and a compulsory procuring of the undertaking, and thereupon the defendants (for the benefit of the debtors, and at their request made to him) executed the same for the use of the plaintiff, there was in the plaintiff’s forbearance a sufficient consideration to sustain the undertaking, even ás a voluntary obligation. (Parsons on Contracts, pp. 373, 379, 435; Winter agt. Kinney, 1 [Comst.] N.,Y. R. 365; Church agt. Brown; 21 [7 Smith] N. Y. R. 315.)
p. 378I. A variety of other cases may be cited to sustain and illustrate the foregoing propositions: l 1. In Wood agt. Chapin 13 [3 Kern.] N. Y. R. per Denio, J), if a consideration be expressed in a bargain and sale deed, “ it cannot be controverted by evidence, and it is sufficient, though the amount be merely nominal.” (Jackson agt. Alexander, 3 Johns. R. 454; Jackson agt. Fisk, 10 Id. 486; Jackson agt. Florence, 16 Id. 47 ; Jackson agt. Sebring, Id. 515; Jackson agt. Caldwell, 1 Cow. R. 622.) 2. So the late chancellor held that where a good consideration appeared on the face of a voluntary deed, neither the grantor nor his subsequent creditors could be allowed to deny or disprove the payment of it, so far as a consideration was necessary to give effect to the deed (Bank, of U. S. agt. Houseman, 6 Paige's R. 535). 3. Again, the chancellor held in a late case (where the nominal consideration of a conveyance of lands was not paid), that actual payment was not necessary; it was sufficient if it were stated in the deed, and the court ought not to allow proof of the non-payment of such nominal consideration to destroy the deed (Meriam agt. Harsen, 2 Barb. Ch. R. 267). 4. So where an agreement of guaranty under seal,' recited the consideration of one dollar, it was held incompetent to prove it not paid, for the purpose of defeating the instrument. (Childs agt. Barnum, 1 Sandf. S. C. R. 58; Same Case on Appeal, 11 Barb. R. 15.) 5. And where a policy of insurance recited payment of the premium, it was held incompetent to disprove the fact to invalidate the instrument (Goit agt. N. P. Ins. Co. 25 Barb. R. 92). 6. But where an assignment of lease recited a consideration of $500 paid, and it was proved not paid, the assignor was allowed to recover it upon the implied promise, in an action of assumpsit (Shepherd agt. Little, 14 Johns. R. 210).
was properly overruled. The defendant was estopped from contradicting these recitals (whether relating to the attachment or the payment of money), for the purpose of disproving the consideration necessary to sustain the instrument, or impeaching its validity. Although the Bevised Statutes have removed the conclusiveness of the legal presumption of a consideration arising from the mere use of a seal, and while it may be true that the mere seal itself is now only “ presumptive evidence ” of “ sufficient consideration,” and such “ presumptive evidence may he rebutted in the same manner, and to the same extent, as if such instrument were not sealedit was not competent for the defendant under this statute, or otherwise, to contradict or vary the agreement as respedts the consideration therein expressed, for the purpose of defeating its operation. Strictly construed, this statute does pot touch the contents of the sealed instrument; it relates only to the legal effect of the mere seal itself. The common law rule, that a written contract cannot be contradicted or varied by inferior evidence, remains unimpaired. The exceptions which allow a mere receipt to be explained, or the consideration of any written agreement to be opened to inquiry, for specific collateral purposes, do not go to the extent of allowing such evidence to defeat thq operative effect of the instrument. Even if the pecuniary consideration were in fact unpaid, the defendant (under the very exception to the rule mentioned) can recover it in assumpsit. So the implied or express promise to pay, arising upon such a recital, makes a sufficient consideration, without actual payment. The offer to show it was not agreed to be paid, would be tantamount to an offer to contradict a vital part of the agreement. (McCartee agt. Stevens, 13 Wend. R. 527; McOrea agt. Purmort, 16 Id. 460; Coon agt. Knapp, 8 [4 Seld.] N. Y. R. 402.)
p. 379II. If there were any authority in the law to justify the admission of the evidence offered; still, in order to make it available, the defendant should have gone further, and offered to prove not only that these defendants, without any consideration, executed the instrument (Case, fol. 37), but also first, that there was no consideration between the plaintiff and the G. H. and H. B. B. Company; and second, that neither they or defendant agreed to waive the actual payment at the time of the one dollar consideration. Mflh. Even if it had been true that there had been no attachment, and no seizure of property, and no payment of the pecuniary consideration, and the undertaking had been voluntarily given to the plaintiff by the Or. H. and H. B. B. Company, without compulsion of process of attachment issued in the suit against them as a foreign corporation, and the defendants were now permitted to contradict the recitals in the uudertaking, and to disprove his admission of receipt of the pecuniary consideration, nevertheless, the undertaking having been given by the defendants in that suit, and the plaintiff having waived the issuing of an attachment, and accepted it, such acceptance would have debarred the plaintiff from issuing any other attachment, and procuring any other security from the debtor, and the defendant would have been by an estoppel in pais, prohibited from repudiating his undertaking. (Dewey agt. Williams, 9 Wend. R. 65; Salem, agt. Williams, 9 Id. 147; Dezell agt. Odell, 3 Hill's R. 215; Decker agt. Judson, 16 N. Y. R. 451; Walrath agt. Redfield, 18 [4 Smiift] N. Y. R. 457.; I. If any defense could arise to any body by reason of the G. H. and H. B. B. Company being not liable to attachment, that would have been their own especial privilege, and not available to this defendant (Stevens agt. Lomberger, 24 Wend. B. 275). n. Although an attachment and seizure of goods were necessary to compel the giving of the undertaking by the foreign debtor, yet he might waive this preliminary proceeding if he (and the plaintiff) thought fit, and give the undertaking without waiting for the visit of the sheriff. If the debtor had thought it more ' beneficial to them (with the plaintiff’s assent) to waive the issuing of an attachment, and a levy .under it, or any defect or irregularity in the matter (and thus save damage to his credit, besides annoyance and expense), and the debtor had been willing to assume and admit the existence of the facts alleged in the undertaking, and the plaintiff so to accept it, the parties were perfectly competent to do so; and the undertaking given under such circumstances would be none the less obligatory upon the parties. (Clark agt. Jones, 1 Denio s R. 516; Goit agt. N. P. Ins. Co. 25 Barb. R. 191; Decker agt. Judson, 16 N. Y. R. 444-5; Kelly agt. McCormick, 28 Id. 320.) Sixth. The judgment of the court of common pleas should, therefore, be affirmed, with costs, together with an allowance of ten per cent.
The sole question in this case is, whether the court erred in rejecting the testimony offered by the defendant. One branch of the offer was to show in contradiction the recitals in the undertaking, that no application had been made for the discharge of an attachment in the action in which the undertaking was entitled, and that no attachment had been issued or granted. The counsel for the applicant argues that the defendants were not estopped
p. 380
from thus showing the falsity of the recital, for the reason that, as the counsel assumes, the plaintiff did not rely upon the faith of the facts recited, or upon the delivery of the undertaking, and was not thereby induced to do anything which he would not have done, or to refrain from doing anything which he would have done but for the undertaking.
But the assumption is not warranted by the facts of the case as proved, or offered to be proved. If in truth, no attachment was issued, it may have been for the very fact that the plaintiff relied exclusively upon the delivery of the undertaking, and was induced by it to forbear taking out an attachment and seizing the property of the company. He had commenced an action, and for aught that appears, the case was a proper one for issuing an attachment.
It was not essential to the validity of the undertaking, that the plaintiff should compel its execution by actually suing out an attachment and making a levy, It was competent for the parties to the action to waive, if they chose, the issuing of an attachment and a seizure of property under it, and for the defendant to give, and the plaintiff to accept, in consideration of the waiver, such an undertaking as the defendant would have been required to give in an application to discharge an attachment actually issued and levied. By such arrangement the plaintiff would have been debarred from suing out another attachment and procuring other security from the defendant in the same action, and the defend- " ant would have been estopped from repudiating his undertaking.
"We are not to assume, without proof, that the undertaking was executed under circumstances which make it void, but the contrary presumption is to be indulged, if it is consistent with the testimony given and the testimony offered. Although the statute under which the proceeding was had, contemplated that the giving of such undertaking shall be preceded by the issuing of an attachment, and shall accom: pany an application to discharge it, and also directs that the undertaking shall be delivered to the court or officer, the non-compliance with those provisions is but an irregularity
p. 381
which the defendant inay waive; and the fact of his putting in an undertaking, which recites that an attachment had been issued, and that he was about to apply for. its discharge, is conclusive evidence of such waiver. It is enough that the undertaking is binding between the principal parties, under such circumstances, to hold the sureties.
' Many cases may be supposed, in which it would be to the interest of the defendant to make such an arrangement, for the purpose of avoiding expense, annoyance or damage to his credit, by the publicity of a levy. It cannot, therefore, be assumed that the plaintiff did not rely upon the delivery of the undertaking, and was not induced by it to refrain from suing out an attachment and making a levy; and if he did thus rely upon it, the defendants were estopped from contradicting its recitals.
There is a plain distinction between the present case, and one where an undertaking is given to procure the discharge of an attachment which is void for want of jurisdiction of the subject matter. In the latter case, the whole proceeding being a nullity, the undertaking is of no effect whatever, and the sureties when sued on it may defend on that ground.
Of that nature are the authorities for the appellant ( 7 Barb. 254 ; 1 Den. 184 ), but they are not applicable to the case at bar, in which there is no evidence of a defect of jurisdiction. The case, therefore, is not within the rule suggested by the counsel for the appellant, and the offer to show that . the recitals were untrue, was properly overruled.
The ruling was also correct in respect to the offer to show that the defendants were induced to execute the undertaking by the alleged false and fraudulent representations of the agent of the company that the recitals referred to were true. It was not proposed, to prove that the plaintiff made any false representations, or that he was cognizant of, or had any agency in the alleged fraudulent conduct of the secretary of the company.
The defendant executed the undertaking, and placed it in the hands of the" agent of the company, to be delivered by him to the court or officer, for the benefit of the plaintiff
p. 382
or (which is the same thing so far as this point is concerned), to be delivered to the plaintiff himself. It having been delivered by the agent as intended by the obligors, and the plaintiff having received it upon a valid legal consideration, and being ignorant of the alleged fraud, and in no way responsible for it, such fraud cannot be set up to deprive him of the benefit of the undertaking.
As upon the hypothesis that no attachment had been issued, the waiver and forbearance, which may be properly assumed in such case, formed a good consideration for the undertaking; the offer to show that there was in fact no pecuniary consideration price, was immaterial.
The judgment should be affirmed.