CLERKE, J.
In consequence of the murder of a woman in the county of Wayne, on the 25th September, 1859, the Governor offered a reward, on the 3d of October following, of $500, to any person or persons "who would give such information as should lead to the apprehension and conviction" of the murderers. On the 14th of October, the defendant, as sheriff of the said county, offered a reward of $200, in addition to that offered by the governor, to any person or persons "who will give such information as shall lead to the apprehension and conviction of the person or persons guilty of the murder, etc."
On the trial, Jones, one of the plaintiffs, testified that he gave information of the murder on the 26th of September, the day the woman was found dead. Several questions were asked of this witness, relative to the person to whom he gave this information, and relative to other information which he had given in relation to the murder and the murderer, before the reward was offered, or before he heard of it. The judge at the Circuit sustained the objection and excluded the evidence. This was correct. It is palpably unnecessary to refer to authority to show, that any information given by the plaintiffs previous to the offer of the reward could not entitle them to the benefit of it. The defendant, as sheriff, contracted for information to be thereafter given. He did not promise to reward any person for past information gratuitously given. In fact, no part of the plaintiff's conduct was in reference to the reward. Jones expressly says so in his testimony before the county judge. He says: "I told what I knew prior to the 11th October, 1859; all that I told of, I did without reference to any reward, and without expectation of receiving any reward for so telling; I did it for the public good." For this gratuitous service to the State, this patriot now claims the benefit of the reward.
The complaint was properly dismissed. The judgment should be affirmed, with costs.
WOODRUFF, J.
On the 14th of October, 1859, the defendant caused a notice to be published, offering a reward of two hundred dollars * * "to any person or persons who will give such information as shall lead to the apprehension and conviction of the person or persons guilty of the murder of" a certain unknown female.
On the 15th day of October before the plaintiffs had seen or heard of the offer of this reward, one Fee was arrested and put in jail, and though not in terms so stated, the case warrants the inference, that, by means of the evidence given by the plaintiffs on his trial and their efforts to procure testimony, Fee was convicted.
This action is brought to recover the reward so offered. On the trial the plaintiffs proved the publication of the notice, and then proposed to prove that they gave information before the notice was known to them, which led to the arrest of Fee. This evidence was excluded. The plaintiffs then offered to prove, that, with a view to this reward, they spent time and money, made disclosures to the district attorney, to the grand jury and to the court on the trial after Fee was in jail, and that, without their effort, evidence and exertion, no indictment or conviction could have been had. This evidence was excluded.
The court thereupon directed a nonsuit.
It is entirely clear, that, in order to entitle any person to the reward offered in this case, he must give such information as shall lead to both apprehension and conviction. That is, both must happen, and happen as a consequence of the information given. No person could claim the reward whose information caused the apprehension, until conviction followed, both are conditions precedent. No one could therefore claim the reward, who gave no information whatever until after the apprehension, although the information he afterward gave was the evidence upon which conviction was had, and, however clear, that, had the information been concealed or suppressed there could have been no conviction. This is according to the plain terms of the offer of the reward, and is held in Jones v. The Phoenix Bank ( 8 N.Y. 228); Thatcher v. England (3 Com. Bench, 254).
In the last case it was distinctly held, that, under an offer of reward, payable "on recovery of property stolen and conviction of the offender," a person who was active in arresting the thief and finding and restoring part of the stolen property, giving information to the magistrates, tracing to London other of the property and producing pawnbrokers with whom the prisoner had pledged it, and who incurred much trouble and expense in bringing together witnesses for the prosecution, was not entitled to the reward, as it appeared that another person gave the first information as to the party committing the robbery.
In the present case, the plaintiff, after the advertisement of the defendant's offer of a reward came to his knowledge, did nothing toward procuring the arrest, nor which led thereto, for, at that time, Fee had already been arrested.
The cases above referred to, therefore, establish, that, if no information came from the plaintiffs which led to the arrest of Fee, the plaintiffs are not entitled to recover, however much the information they subsequently gave, and the efforts they made to procure evidence, may have contributed to or even have caused his conviction, and, therefore, evidence that it was their efforts and information which led to his conviction was wholly immaterial, if they did not prove that they had given information which led to his apprehension, and was properly rejected.
The question in this case is simple. A murderer having been arrested and imprisoned in consequence of information given by the plaintiff before he is aware that a reward is offered for such apprehension, is he entitled to claim the reward in case conviction follows?
The ruling on the trial, excluding all evidence of information given by the plaintiffs before they heard of this reward, necessarily answers this question in the negative.
The case of Williams v. Carwardine (4 Barn. Ald. 621, and same case at the assizes, 5 Carr. Payne, 566), holds that a person who gives information according to the terms of an offered reward is entitled to the money, although it distinctly appeared that the informer had suppressed the information for five months, and was led to inform, not by the promised reward, but by other motives. The court said the plaintiff had proved performance of the condition upon which the money was payable and that established her title. That the court would not look into her motives. It does not appear by the reports of this case whether or not the plaintiff had ever seen the notice or handbill posted by the defendant, offering the reward, it does not, therefore, reach the precise point involved in the present appeal.
I perceive, however, no reason for applying to an offer of reward for the apprehension of a criminal, any other rules than are applicable to any other offer by one, accepted or acted upon by another, and so relied upon as constituting a contract.
The form of action in all such cases is assumpsit. The defendant is proceeded against as upon his contract to pay, and the first question is, was there a contract between the parties?
To the existence of a contract there must be mutual assent, or in another form offer and consent to the offer. The motive inducing consent may be immaterial, but the consent is vital. Without that there is no contract. How then can there be consent or assent to that of which the party has never heard? On the 15th day of October, 1859, the murderer, Fee, had, in consequence of information given by the plaintiffs, been apprehended and lodged in jail. But the plaintiffs did not, in giving that information, manifest any assent to the defendant's offer, nor act in any sense in reliance thereon, they did not know of its existence. The information was voluntary, and in every sense (material to this case) gratuitous. The offer could only operate upon the plaintiffs after they heard of it. It was prospective to those who will, in the future, give information, etc.
An offer cannot become a contract unless acted upon or assented to.
Such is the elementary rule in defining what is essential to a contract. (Chitty on Con. 5th Am. ed., Perkin's notes, p. 10, 9 and 2, and cases cited.) Nothing was here done to procure or lead to Fee's apprehension in view of this reward. Indeed, if we were at liberty to look at the evidence on the first trial, it would appear that Fee was arrested before the defendant offered the reward.
I think the evidence was properly excluded and the nonsuit necessarily followed.
The judgment should be affirmed.
Judgment affirmed.