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Brief for the Plaintiff in error.

To which refusal the defendant excepted.
Verdict for plaintiffs.

Messrs. O'MELVENY and Houck, for the plaintiff in error.

I. The second plea (same as the third, printed at length) avers, that plaintiffs abandoned their contract to sell to the firin of “Musson & Culley,” and sold and conveyed the boat without the knowledge or consent of Byington, the defendant, guarantor, to Rodney C. Culley, individually. The replication takes issue on no other part of that plea than to traverse the abandonment of the contract to sell to the firm; and the only question on the record is, whether the defendant proved that part of his pleas; for every other allegation in the pleas, not denied or traversed by the replication, is, by the rules of pleading, admitted to be true. Dana v. Bryant, 1 Gilm. 104.

II. The original contract for the sale, by the plaintiffs, was to “Musson & Culley” both, and for “Musson & Culley" jointly Byington guaranteed, and the note was delivered to the plaintiff's; but they sold by a new and different contract afterward to Culley alone, and applied the note to pay for his individual debt and purchase without the consent of Byington; therefore he is released.

When a note is indorsed for a special purpose, and the object of making the indorsement fails, the guaranty is at an end. Edwards, 316, 317, 319; Collyer on Partnership, $ 614; 3 U. S. Dig. 283; 2 Am. Lead. Cas. 390, 391.

The surety or guarantor cannot be forced into a situation never contemplated by him. Story on Part. § 248.

The surety or guarantor cannot be held in any other way than he contracted. 1 Parsons on Cont. pp. 503, 504.

An indorsement for a partnership firm does not inure to the remaining partner. Collyer ou Part. $ 624.

Because the character of the obligor enters into the contract. Collyer on Part. $ 616; Story on Part. $ 246, note 2, $ 247; 1 Parsons on Cont. 505.

If A guarantees a lease and a new lease is afterward substi

Brief for the Plaintiff in error.

tuted, A cannot be compelled to pay on the new lease, and is discharged from his liability. White v. Walker, 31 Ill. 423.

III. The writing, i. e. the first contract set out in the pleas, counsel hold to be a bill of sale, never was intended as such, and is not upon its face a bill of sale:

1. The writing is signed by both parties, thus showing its executory character and the fact that it was an agreement for a future sale.

2. Only a twenty-five cent internal revenue stamp is used.

3. The certificate of registry is not recited in the writing, which is absolutely necessary to constitute a valid bill of sale:

To secure the American character of the vessel. 1 Brightly's Dig. $ 14, p. 828.

To prevent the forfeiture of the vessel. 1 Brightly's Dig. $ 16, p. 829.

4. The writing referred to could not be recorded in the proper offices under the act of congress of 1850.

That act only provides for admission to record of bills of sale, etc., with the register recited. 1 Brightly's Dig. $ 44, p. 833.

Under the act of congress of 1865, every bill of sale of a vessel must be acknowledged before it can be recorded in the proper offices. 2 Brightly's Dig. $ 10, p. 402.

Huwever, the plaintiffs’ counsel admit the contract set out in the plea to be executory, by the issue made up, and it is only material in so far as it proves that the note was guaranteed on a contract for a sale of the boat to the firm of “Musson & Culley.”

IV. The bill of sale really made is that set out in the abstract, and, although it purports to bear date of the 23d of June, 1865, was made in October of that year. We think it is palpably manifest that it is not the sale of the boat to the

firm of “Musson & Culley," and not the execution of the contract, for which the note was given and guaranteed, which was for a sale to that firin. Whether the abandonment of the contract to sell to the firm was or was not by consent or agreement of the other parties, or did or did not injure Byington, the defendant, we think it is not for us to prove. The change

Brief for the Defendants in error.

of the contract without his consent, on which he guaranteed the note, released him. 1 Parsons on Cont. 504, note G; Mayhew v. Boyd, 5 Md. Ch. 102.

V. The court ought to have given the instructions severally on the part of the defendant, which were refused, and ought to have refused the plaintiffs' instructions, because in form they are calculated to mislead the jury, especially so the concluding part of the second instruction, as it implied doubt as to whether the defendant relied on the only issues made up in the first and second pleas.

Messrs. ALLEN & WERB, for the defendants in error.

I. It would seem almost too clear for argument, that, by the terms of the writing set out in plaintiffs' third plea, defeudants in error sold the steamboat “Ella” to J. W. Musson and R. C. Culley. The language of that writing furnishes no excuse for discussing the question as to its being an executed or an executory contract. In addition to the clear legal import of the writing, the evidence of Green shows that he, as agent of defendants in error, about the date of said writing, delivered the boat to Musson & Culley, and that this delivery was before the notes, which expressed the consideration of the sale, were delivered to defendants in error.

II. Plaintiff in error seems to complain, that, after the sale and delivery of the boat to Musson & Culley, a bill of sale, under the act of congress, was made to Culley alone; in other words, that before the boat was ready for enrollinent under Musson & Culley's purchase, Musson had parted with his interest in the boat to Culley, in whose name alone the bill of sale was made and the boat enrolled; the position assumed, in substance, being that to render plaintiff in error liable on his gnaranty, Musson must never part with his interest in the boat. Such a proposition we are not disposed to argue. The gnaranty of plaintiff in error was not a continuing one, but simply an undertaking that if Musson & Culley did not pay the note guaranteed, he (Byington) would pay the same himself. It is respectfully submitted that all the authorities referred to by

Opinion of the Court.

counsel for plaintiff in error upon this point are wholly inapplicable, and would only have the least pertinency if this suit had been brought upon a continuing guaranty. But the plaintiff in error, according to his own statements, testified to by Mr. Webb, guaranteed the note because Culley "told him he would indemnify him against loss by a mortgage on two lots.”

III. Although a bill of sale, under the act of congress, must be made to the purchaser npon the sale of a vessel in order to enrollment, yet, a boat being but a chattel, title to the same may pass to the purchaser without such bill of sale. A bill of sale was, however, regularly made ont, according to the act of congress, by defendants in error to Culley, and delivered to him. The evidence of Lightner shows, that there was some arrangement between Musson & Culley by which the bill of sale was made to the latter, and that this was some days after Musson & Culley had taken possession of the boat, and even atter they had repaired the boat at St. Louis.

IV. The instructions given by the court embody the law, and the court might well have refused to instruct the jury at all, at the instance of plaintiff in error, upon the issue of an abandoment of the contract, for no evidence whatever, looking to an abandonment of the contract for the sale, by defendants in error, of the boat, was introduced by the plaintiff in error in the court below.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error insists that the judginent of the court below should be reversed, because of the refusal to give two instructions asked by him. We can see no error in refusing to give them. As asked, they were calculated to mislead the jury. The evidence shows, that the boat was sold to Musson & Culley, and under that sale was delivered alone to Culley; and it would seem that the delivery was in pursuance to, and fulfillment of, the contract of purchase; and the evidence tends to show that the transfer by the deed was made in the same inanner, and to fulfill the agreement.

Syllabus.

If it was transferred to him for both Musson & Culley, with their assent, and in accordance with their wishes, then there can be no doubt that the agreement was substantially and legally performed, while these instructions would require the jury to find for defendant, unless the transfer had been made to both of them.

Plaintiff in error had assumed the burden of proving that the original agreement had been abandoned, and a new sale made alone to Culley; and these instructions assume that the transfer of the boat to Culley, no difference how made, proved that fact; while, on the contrary, we have seen that the possession was delivered to Culley under the sale to Musson & Culley, and the jury were warranted in finding that the transfer was made to Culley in the same manner; unless they had been properly modified, the court did right in refusing to give them to the jury. Perceiving no error in this record, the judgment of the court below must be affirmed.

Judgment affirmed.

AUGUST WERNER

V.

FREDERICK ROPIEQUET.

DISTRESS FOR RENT — warrant for cannot issue after six months from the time of termination of lease. By the act of 1857, the common law relative to proceedings for distress for rent is so modified as to authorize distress to be made for the period only of six months after the expiration of the lease; and, where a distress warrant issues more than six months after rent has become due, and the lease terminated, and the demised premises abandoned, such warrant is without authority of law, is null and void, and affords no protection to the officer levying it.

APPEAL from the Circuit Court of St. Clair county; the Hon. JosEPH GILLESPIE, Judge, presiding.

The facts in this case are sufficiently stated in the opinion,

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