tion, set forth that the defendants | 4. If the factor sells below his instruc leased certain premises of the plaintiffs, and went on to state a cause of action for a breach of one of the engagements in the lease. Annexed to the declaration was a paper purporting to be a copy of the lease, together with a notice addressed to the defendants stating that it was a copy of the lease referred to. The instrument purported to be signed by the parties, but there were no marks indicating that the original had been sealed, nor was it averred in the declaration that it was sealed. Held, nevertheless, that the plaintiffs might upon the trial give in evidence and recover upon the lease, although it was a id sealed instrument. See PLEADINGS, 9. 5. 6. tions, although at the then market value, he takes the peril of a rise in the value of the goods at any time before the action is brought, and perhaps down to the time of trial. BRONSON, J. Per id 6. The supposed grantee in a lost deed entered upon the land which was wild and uncultivated, cut timber, ran the boundaries with a pocket compass, executed a conveyance to other parties, and then left the country. There was no other account of him, nor- ✓ evidence that he and the supused grantor were known to each other. One of the persons to whom he conveyed testified, that at the time he exercised these acts of ownership, he saw in his possession a deed purporting to be executed by the supposed grantor to him, and this was the only evidence of the existence, genuineness and contents of the lost deed; held that the evidence was not sufficient to make out a defence in opposition 7. In an action of ejectment where the question is whether the corporation of the city of New-York has acquired title to lands by virtue of proceedings taken under the charter for the purpose of widening a street, the papers used on the application to the supreme court for a confirmation of the report of the commissioners of estimate and assessment and filed in that court, are competent evidence for the purpose of sustaining the proceedings, and may be used to show that the party assailing the proceedings consented to relinquish to the corporation the residue of a lot where the whole is not taken for the public use. Embury v. Conner, 8. 512 EXECUTION. Where a sheriff suffers a defendant whom he has taken on execution, to go at large on the undertaking of a third person to pay the debt or surrender the prisoner, the plaintiff, unless he consented to the arrangement, may issue a new process and retake the defendant. Nor is the plaintiff's consent to the escape made out, by evidence showing that he subsequently called upon the third person to perform his undertaking. Wesson v. Chamberlain, 331 EXECUTOR AND ADMINISTRATOR. See HEIRS. SALE. EXTINGUISHMENT. A judgment upon a contract technically merges the demand, but not in so complete a sense that the courts may not look behind the judgment to see upon what it is founded, for the purpose of protecting the equitable rights connected with the original relation of the parties. Clark v. Rowling, 216 See BANKRUPTCY. F FACTOR. 1. Where goods are sent to a factor for sale without instructions as to the time or terms of sale, he is at liberty to sell at such time and on such terms as in the exercise of a sound discretion he shall deem proper for the interest of his principal. Per CADY, J. Marfield v. Goodhue, 62 2. But the factor is bound to obey the subsequent instructions of his principal as to the sale, although after the receipt of the goods he has made advances thereon, unless the principal, after reasonable notice, fail to repay such advances. id 3. Whether special circumstances, such as the insolvency of the principal or the impracticability of giving him reasonable notice to repay advances, will not justify the factor in selling contrary to his instructions, quere. id 4. The plaintiff, residing in Ohio, consigned to the defendants, who were commission merchants and factors in New-York, a large quantity of pork for sale. The defendants on the receipt of the property paid the freight and charges, and subsequently they made advances thereon to the plaintiff. The plaintiff, after the advances were made, in anticipation of a rise in the market, gave the defendants instructions not to sell. Held, that the defendants were bound by the instructions, and had no right to sell the pork without calling on the principal to repay the advances, or giving him notice of their intention to sell. id 1. A promise to do an act in consideration of some act to be done by the promisee, implies a request, and such a promise is made upon sufficient consideration. And if the promise be in writing, the consideration there for is expressed so as to uphold the contract Iwithin the statute of frauds. The performance of the acts to be done by the promisee, may be proved by parol. Union Bank v. Coster's Executors, 203 2. Under the statute of frauds, which required the "agreement" to be in writing, it was necessary that the consideration should be expressed in the instrument, and this was so held upon the force of the word “ agreement." Thompson v. Blanchard, 335 3. But a mere undertaking or promise does not, ex vi termini, import a consideration; and therefore where a statute requires an "undertaking" to be entered into by sureties in order to give a right of appeal, an instrument containing the requisite stipulations is valid, although it does not express a consideration and is not under seal. id G GIFT. See DONATIO MORTIS CAUSA. GUARANTY. 1. A general letter of credit authorizes any person to whom it is presented to act upon the proposition therein contained; and when any person does act thereon, a contract arises between him and the maker of the instrument, in the same manner as if it had been addressed to him by name. Union Bank v. Coster's Executors, 203 2. And such a letter of credit, if it authorize more than a single transaction with the party to whom it is granted, may be honored by several persons successively, keeping within the aggregate limit specified in the instruid 3. 4. ment. Where A., by a general letter of credit, undertook to accept and pay drafts to be drawn by B. to a given amount, and C. at the foot of the letter, at the same time, wrote and signed a guaranty in these words: "I hereby agree to guarantee the due acceptance and payment of any draft or drafts issued in virtue of the above credit;" held that the letter and guaranty should be read and construed together, that the consideration of the guaranty was sufficiently expressed in the writing, and therefore that the guaranty was a valid undertaking within the statute of frauds. id Contracts of guaranty, although required by the statute to be in writing, are subject to the same general rules of construction as other contracts. id 5. The statute of frauds requiring the agreement and consideration to be in writing, applies, it seems, only to common law agreements where the consideration is the subject of mutual arrangement between the parties, and not to instruments created under and deriving their obligation from 5. A person who gives a general letter special statutes, without the accept- of guaranty, absolute in its terms, is VOL. III. 74 |