For the defendants, it was urged, that the action was a novel 1793. ty; that, on general principles, the service of a minor child, (whether legitimate, or not) was due to the parent, in consideration of his maintenance and education; and that the supposed special contract was unreasonable, and, consequently, void. 1 Black. Com. 449. 453. 450. Yelv. 17. 2 Stra. 728. Doct. and Stud. 211, 212. If, therefore, the plaintiff is entitled to recover any thing, it must be on the count for a quantum meruit, when, considering him as a servant, the expense incurred for his cloth ing and education must be set off against a claim for wages.

For the plaintiff, it was answered, that the contract was expressly proved, upon a good and valuable consideration, performed by the plaintiff; and that considering the rights of a bastard in relation to the father's estate, to be only such as he could himself acquire, the Court would be anxious to support so meritorious a claim. 1 Black. Com. 459.

By the COURT: This is an action to recover damages, for the non-conveyance of 100 acres of land, agreeably to an express promise of the intestate; with respect to which the evidence certainly supports the declaration. Considering, however, the relation of the parties, the other parental obligations of the intestate, and the extent of the property, it would seem rather excessive to give the full value of the land in damages for a breach of the promise. Is there, then, any thing in the evidence, that will warrant the jury, in departing from that strict standard of the damages? We think there is. The father's intimation, that he would place Jacob on a footing with his other children, may be fairly construed as a promise, (explanatory of what he had before said) that he would give him a child's share of the estate. If the jury adopt the construction, however, the other illegitimate children must be put out of the calculation. On this principle one fifth, would entitle him to a verdict for 150%. As to interest, it will depend upon 'the discretion of the jury: but if the eldest son took the estate, at the valuation, he must have paid interest to the younger children; and, consequently, on the ground of equality, it would be right to allow it to the plaintiff.

Verdict for the plaintiff 1457. damages. (1)

C. Hali, C. Smith, and Hartly, for the plaintiff.

F. Smith, Duncan, and Tilghman, for the defendant.

(1) This cause was tried at York Town, N. P. before SHIPPEN and BRAD FORD, Justices, in May 1793.

1793.

Edgar's Lessee versus James Robinson, junior, and Wu

liam Robinson."

EJECTMENT, tried at York-Tow", in which defence was

taken for one-third part of the premises. The title of the lessor of the plaintiff was deduced from a patent, dated the 10th of June 1734, to Thomas Lenton, who conveyed, on the 8th of January 1741, to James Rowland, and James Rowland afterwards conveyed to Robert Rowland, who devised the premises to his sons James, John, and Matthew, by a will dated the 9th of January 1779. A sheriff's deed was then read, dated the 29th of April 1785, which recited a judgment and execution, at the suit of Andrew Leiper against Matthew Johnston and James Robinson for 301.; and a sale of one-third part of the land, as the estate of James Robinson, to Samuel Edgar (the lessor of the plaintiff) for 10l. And parol evidence was offered to show, that James Rowland had conveyed one-third of the premises to James Robinson, senior, (uncle of the defendants) who was the defendant in a former ejectment; and who was in possession of the land at the time of the judgment and saie. It was, thereupon, objected, that no parol proof could be given of a conveyance of real estate; nor, generally, of any instrument, without previous notice to produce it.

But, by the COURT: The present defendant, James Robinson, junior, is not the party to the alleged deed; and, therefore, no notice could be given to him, within the general rule, for the production of deeds: nor, if he stands merely in the character of a witness to the deed, is he compellable to produce it. There is, therefore, no way of getting at the title, but the one proposed, if the defendant in an action, chuses, under such circumstances, to conceal the muniments of the estate.

The witnesses were, accordingly, examined; and the plaintiff obtained a verdict, conformably to the charge of the Court.

THIS

Zantzinger versus Ketch.

HIS was an action of debt on articles of agreement to pay 135, in two instalments, for lands bought by the defendant from the plaintiff; and in the articles it was stipulated, that "the deed of conveyance shall be made to the said Michael "Ketch at the first payment.'

The defendant offered the parol testimony of a witness, who was present at the execution of the articles, to shew that by the expression," the deed of conveyance," the parties meant and understood, "a deed conveying the land free of all incum

"berances."

"berances. 2 Vez. 299. Hurst v. Fell, in the Supreme Court 1793. of Pennsylvania.

The evidence was opposed, as tending to contradict the deed, whose expressions were clear, and did not require explanation.

The COURT, however, upon the authority of Hurst v. Fell. admitted the evidence, though with great reluctance; and declaring that they would reserve the point. But as the verdict was for the full amount of the plaintiff's demand, the question was not revived. (1)

C. Smith, for the plaintiff.
Hamilton, for the defendant.

Eddowes et al. versus T. Niell.

HIS was an action on the case, for goods sold and delivered to William Niell, upon a special assumpsit by the defendant, Thomas Niell, to guarantee the payment of the price. Pleas, 1st. Non assumpsit, on which issue was joined; and, 2d. The statute of limitations, to which, resident beyond seas, was replied, &c.

The plaintiffs were British merchants, from whom William Niell, a trader in Baltimore, was accustomed to import goods. On the 14th of January 1771, his brother, the defendant, wrote a letter to them, in which he said, "that to strengthen his bro"ther's credit, he would guarantee all his dealings with their "house." Several shipments of goods were made both before, and after, the receipt of this letter; and William Niell continued to make payments on account, till the year 1775, when the revolutionary war began its agitations; and all commercial and amicable intercourse, between Great Britain and the United States, was suspended until the peace of 1783. In the year 1784, the plaintiffs sent a power of attorney to collect the debts due to them here; their agent applied to William Niell who acknowledged the justice of the debt; but claimed an abatement of eight years interest, on account of the war; and a further credit upon giving his bond for the amount; which the agent refused. In 1785, William Niell died, leaving the defendant his executor; to whom, in that character, the agent of the plaintiffs applied for payment; and he answered, by admitting the claim, and recommending a suit against the estate. No demand, however, was made, on the ground of the defendant's guarantee, till about the time of commencing the present action, in January 1790.

(1) This cause was tried at Caisle, Nisi Prius, on the 15th of May 793, before SHPPEN and BRADFORD, Sustices.

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17.93.

On these general facts, the plaintiffs' counsel contended, 1st. That the demand was fair and legal, founded upon an unequivocal letter of credit, applicable, in its terms and meaning, as well to shipments made before, as after, it was received. 2d. That it was not necessary to render the letter binding on the defendant, that the plaintiffs should answer it; nor that they should give notice to him of a default, (as in the case of bills of exchange) at any period of the transaction. 3d. That there was no express waiver of the guarantee; and nothing can be implied, even in favour of a surety, since no new security was taken; nor any negligence shown, in omitting to prosecute the principal, upon the demand of the surety.

For the defendant it was urged, 1st. That the demand was a harsh and stale one; founded on a letter, which had not, in fact, created any additional confitlence, or credit; the receipt of which had never been acknowledged; and the responsibility of which had never been suggested, for more than nineteen years. 2d. That the guarantee ought not to receive an indefinite interpretation; but to be regarded as a credit, according to the course of the American trade, for a year; and to forbear a suit for so long a time, during the life, and after the death of the principal, was, in fact, giving a new and independent credit; which is tantamount to a release of the surety. 3d. That although the statute of limitations may not apply, as a plea in bar (the plaintiffs residing abroad) the lapse of time furnishes a presumption, that the defendant's letter never was accepted, or relied upon, as a guarantee. 4th. That, on the most rigid construction, the guarantee can only apply to future, not to past, transactions. And on these points, respectively, the following books were cited: 1 T. Rep. 167. 2 Br. Ch. 579. 2 T. Rep. 366. 370. 1 Pow. Cont. 287. Ibid. 8, 9, 10.

By the COURT: Letters of credit are a common, and useful, instrument in the course of commerce. They are, however, of a. very serious nature; and the writer is bound to comply with the contents, according to their genuine and honest import. In order to render them obligatory as a contract, it is not necessary, that they should be answered, if credit is given upon them. Like the case of transmitting a bond in a letter, acquiescence and acceptance are implied, in the silent receipt of the instrument.

It has been urged, that the lapse of nineteen years, without notice of a default in payment by the principal, is a virtual abandonment of all recourse to the surety; on the principles applicable to bills of exchange, and to other negotiable instruments. But there is no analogy between the cases; for, the engagement of the letter of credit extends, in its very nature, to various future transactions, without reference to time, or amount. It is true, however, that the gross negligence of a creditor, even of the

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obligee in a bond, may operate to discharge a surety; as where the 1793. obligee is requested by the surety to proceed against the principal, in order to save the debt; if he neglects or refuses to do so, the surety, both in law and equity, will be exonerated; and this is the case in 2 Brown's Chancery Reports, 579. But does the evidence in the present action, justify an adoption of the rule? From the years 1771 and 1772, when the shipments were made, until the year 1775, when payments were first suspended, there could be no reason for calling on the defendant. From 1775, till the peace of 1783, the debtor was guilty of no default, which would warrant an application to the surety; for, he was prevented, by the war, from corresponding with the creditor, and making any payment, or remittance, on account of the debt. As soon as the peace had restored the intercourse between the parties, the creditor applied for payment to the debtor, who acknowledged the debt; claimed an abatement of interest; and made some overtures for a settlement; but died in the next year, without affecting any thing in that respect. The agent of the plaintiffs then addressed the defendant, not as surety, but as executor, of his brother; and, indeed, it does not appear, that the agent knew of the letter of credit, till sometime afterwards.

On this review of the facts, we cannot perceive any culpable negligence, on the part of the plaintiffs, in pursuing their origi nal debtor: nor is it clear, that they had any right to call upon the defendant, as a surety, until they had failed in their endeavours to recover from the principal; or the principal had become notoriously insolvent. The want of notice, therefore, in such a case, and under such circumstances, does not, in itself, furnish a bar to the demand; and although, in some instances of debts, a lapse of time will warrant a presumption of payment; yet, from the nature of this contract, no such presumption can arise here. Verdict for the plaintiffs. (1)

Tilghman, and Bowie, for the plaintiffs.

Ingersoll, Smith, and Duncan, for the defendant.

(1) This cause was tried at York-Town, Nisi Prius, on the 22d of May 1793; frefore SHIPPAN and BRADFORD, Justices,