source: Caselaw Access Project

author: Allen, J.

license: Public Domain

text:
    Dubois et al., Executors, v. Beaver.
    Under the Code, acts of trespass prior to the earliest day laid in the complaint may be proved, though trespasses laid under a continuando have already been proved. The variance is to be disregarded, unless it appears to have misled the defendant. '
    A tree growing near a boundary line, so that its roots extend on each side, is, it seems, wholly the property of him on whose land the trunk' stands: Per Allen, J.
    When the boundary line divides the trunk, it belongs, it seems, to the adjoining proprietors as tenants-in-common.
    Where line trees are destroyed by one of the adjoining proprietors, trespass lies by the other, whether his interest be several or as tenant-in-common.
    It is not an objection to his recovery of single damages that the complaint goes upon the statute of willful trespass.
    Appeal from the Supreme Court. Action for treble damages for cutting down and carrying off trees. It appeared, on the trial, that the plaintiff’s testator and the defendant occupied adjoining farms. At the place where the trees were cut down, the plaintiff’s (the action was tried in the testator’s lifetime) lands were woods; the defendant’s were cleared and fenced by him to the line. In the line of the fence were trees, or stumps of trees, standing on and intersected by the boundary line between the parties, which, the evidence tended to prote, had been cut by the defendant. The plaintiff was allowed to prove, under exception, acts of trespass prior to the earliest day laid in the complaint, in addition to trespasses during the period laid in the complaint, which he had already proved. The defendant asked the court to charge, that the plaintiff was not entitled to recover, in this action, for the cutting of the line trees. The court refused so to charge, and directed the jury to find in favor of the plaintiffs the value of such proportion of the trees -cut by the defendant as was on the plaintiff’s land. To this charge, and refusal to charge, the defendant took exceptions. The verdict was for the plaintiff, for $25. The exceptions were ordered to be heard, in the first instance, at general term in the third district, where they were overruled, and judgment rendered on the verdict, with full costs. The defendant appealed to this court.,

      Marius Schoonmaker, for the appellants.

      E. Cooke, for the respondents.
   Allen, J.

Although the trespasses were laid with a continuando, and several acts of trespass within the time alleged had been proved, the plaintiff was properly allowed to prove another act anterior to the day stated in the complaint as the commencement of the trespasses. The rule was otherwise at common law, for the reason that a variance between the declaration and proof was fatal. It was then required, that the first day should be laid anterior to the first wrongful act, because the plaintiff would not be permitted to give, in evidence, repeated acts of trespass, unless committed during the' space of time laid in the declaration. (1 Chitty’s Pl., 394.) But he might prove a single act of trespass, upon the first day named in the complaint. (Hume v. Oldacre, 1 Stark., 351.) In such case, he was confined to that act, and the averment of the several trespasses after the first day named was treated as sur plusage, and disregarded, when the day specified was regarded as an allegaron of time not necessary to be proved as laid, and not as descriptive of the offences. (5 Price, 614.) So long as the averment in continuando, was relied upon, and regarded as a part of the declaration, it was necessarily made a part of the statement of the causes of action; and any evidence of acts not embraced within the description was inadmissible, upon the ground of variance. The evidence could not differ from the statement of the cause of action. The objection had no other foundation, in principle; and this is obviated by the 169th and 170th sections of the Code, which -reject all variance between the allegation in a pleading, and the proof, unless it has actually misled a party, to his prejudice; which was not claimed upon the trial of this action.

The action was in form to recover treble the amount of damages which should be assessed by the jury for the trespasses complained of; but, upon the trial, the plaintiff only claimed to recover single damages: the action was treated as an ordinary action of trespass, and the plaintiff has only taken judgment for single damages. The question was not made, upon the trial, which is attempted to be made here, that trespass for cutting line trees, or trees standing upon the division line between the plaintiff and defendant, was not within the statute giving treble damages for willfully cutting down timber or trees on the land of any other person, without the consent of the owner. The plaintiff could waive his claim for treble damages, under the statute, and if he did so, or if it appeared, upon the trial, that the trespass was casual or involuntary, or that the defendant had reason to believe that the land on which the trespass was committed was his own, the verdict would necessarily be, as it was in this case, for single damages, or for a single trespass. To have entitled the plaintiff to treble damages, the jury must have found the defendant guilty of the trespass alleged, and assessed the single value of the timber or trees cut, and the court, on motion, would have trebled the damages. (3 R. S., 5th ed., 624; Newcomb v. Butterfield, 8 J. R., 264.) The reference, therefore, to the statute may v be regarded as out of the complaint; and the right of the plaintiff to recover for the cutting of the line trees be considered as if the action was in form, as it was in fact as tried and determined, a simple action of trespass gycam clausum firegit.

It.is not necessary to determine whether the parties were technically tenants-in-common of the trees growing upon the boundary line separating their respective farms, with all the ordinary rights and incidents of such an estate. The trees thus growing are called, in the case, “ line trees.” By this, I understand, is meant, not trees marked and set apart by the parties as evidences or monuments of the division line, but trees deriving their nourishment from roots extending on both sides of the line, and with bodies so directly over the line, and necessarily on both sides of that line, that it could not be determined upon which side of the line the tree was originally planted; as was the case in Holder v. Coates (1 Moody & Malkin, 112). Different opinions have been held, as to the rights of the owners of adjoining estates in trees planted, and the bodies of which are wholly upon one, while the roots extend and grow into the other; some holding that, in such cases, the tree, by reason of the nourishment derived from both estates, becomes the joint property of the owners of such estates (Waterman v. Soper, 1 Ld. Raym., 737; Griffin v. Bixby, 12 N. H., 454; 2 Bouv. Inst., 158); while others, with' better reasons, as it seems to me, hold that the tree is wholly the property of him upon whose land the trunk stands. (Holder v. Coates, supra; Lyman v. Hale, 11 Conn., 177; Masters v. Pollie, 2 Roll. R., 141; Crabbe on Real Property, § 96.). The same reasons, and the proprietorship of the soil, would give to the owner of the estate that part of the trunk of a tree which was upon or over, his land, when the trunk was divided by the line separating the estates. The ownership of the soil would be several, in the proprietors of the two estates, while the tree, standing and growing partly upon the.soil of each, not capable, as an entire thing, of several ownership by the two, would be the property of the two in common, and as tenants-in-common. If a tree grows in a hedge that divides the land of A and B, and by its roots takes nourishment in the land of both, they are tenants-in-common. (Anon., 2 Roll., 255; Crabbe’s Law of Beal Property, supra.)

The same difficulty and conflict of opinions upon this branch of the law has also existed in the civil law, and in France the difficulty has been avoided by legislation, and boundary hedges, and the trees in them, are declared to be common property of the owners of the two estates. (Note to Holder v. Coates, 22 E. C. L. R., 265.) So long as neither can make title upon any principles of right known to the law, to the exclusion of the other, a common property necessarily exists in both, and the rule .of the French code is but the rule of the common law resulting from the principle which gives to the owner of the soil an exclusive right to an indefinite extent upward and downward, and which makes trees and bushes, growing and being upon land, a part of the land itself. Trees thus standing upon the boundary line, as mete-stones or monuments set up for marking the boundary line, are not like party_ walls erected with reference to the ' usual occupation of adjacent premises. The wall is erected for the use of each, and each may use it, and each owns that which is on his own premises, but there is no tenancy-in-common. (Matts v. Hawkins, 5 Taunt., 20.) This case was, however, decided under the party wall act of-14 Greo. Ill, c. 78, and it would seem that but for such act the presumption would be that the wall and the land on which it stands belong to the owners of the adjoining lands in equal moieties as tenants-in-common. (Cubitt v. Porter, 8 B. & C., 257.)

Ordinarily, trespass will not lie by one tenant-in-common against his co-tenant, but when one tenant in common ousts his co-tenant, ejectment will lie at the suit of the latter; and when one tenant-in-common destroys the subject of the ten-ahoy, trespass will lie at the suit of the injured party. (Co. Litt., 200, a, 200, b; Crabbe’s Law of Real Property, § 2318, b; Waterman v. Soper, supra.) If one tenant-in-common destroy the thing in common, as if he grub up and destroy a hedge or prevent his co-tenant of a folding erecting hurdles, trespass lies. (Browne on Actions, 414; Voyce v. Voyce, Gow., 201; Cubitt v. Porter, supra.) If one tenant-in-common enter upon his co-tenant and oust him of his premises, trespass quam■ clausum fregit lies for the injury. (Erwin v. Olmsted, 7 Cow., 229.) Here there was a total destruction of the trees, and the plaintiff had his remedy by action for the wrong done. If the parties were not tenants-in-common, the defendant was clearly a trespasser in cutting and carrying off that portion which belonged to the plaintiff in reality as being upon his land.

The judgment must be affirmed.

DAVIES, J., also delivered an opinion for affirmance.

Judgment affirmed.


author: Denio, J. Gould, J., (dissenting.)

text:
    Pierrepont, Executor, &c., v. Edwards et al.

    A testator gave Ms widow, in case he left a child of the marriage, an annuity during widowhood of $8,000, payable “ out of the income of my estate.” The next clause of the will gave her, in case there should be no child, án annuity of $7,000 (which was the only provision in her favor); and disposed of “ the residue of the income ” to a brother and sisters for their lives, with remainder to their children, on the death or marriage of the testator’s widow: Held, that the annuity of $7,000 was a demonstrative legacy, payable out of the principal of the estate in case of a deficiency of income, although it was proved that the testator, when making his will, believed that his estate would afford a rehable surplus of income, after paying the larger annuity.
    Appeal from the Supreme Court. Action by the executor for a construction of the will of Alfred H. P. Edwards, deceased. The will was made Dec. 27,1856, and took effect by the death of the testator, January 4, 1857. It gave the entire estate, real and personal, of the intestate, in trust to his executors, directing, 1. That the executors, in their discretion, should sell and convert into money any of the estate, real or personal, which might be unsafe or unproductive, and invest the proceeds in safe and productive securities. 2. That the executors should pay, out of the income of the estate thus invested, $8,000 per annum to his wife, in case the testator should leave a child or children by her, so long as she should remain a widow. 3. If there should be no child or children, then the executors were directed to pay to the widow $7,000 per annum so long as she should remain a widow, and to pay the residue of the income of the estate, in equal portions, to a brother and two married sisters of the testator. At the death or marriage of the widow, in case no children of the testator survived, the executors were directed to pay the income of the estate to .the testator’s brother and sisters, in equal, portions: the children of the brother and sisters, in case of the death of either of them, leaving children, to receive the share of their parent, and in case either died childless, or their child or children should die, then the share of the child or children to go to the survivors of the testator’s'brother and sisters. 4. In case the testator left a child or children, the estate was to remain in trust for their benefit during minority, and then to be paid over to them in equal portions, reserving in trust the annuity of $8,000 for his wife during widowhood, and if she ceased to be his widow, the executors were to invest the income of the estate, after paying the expenses of supporting the children, and pay the latter their equal shares on .their arriving at full age respectively; and in cáse no child of the testator survived its mother, then, on the death or marriage of the latter, the estate was to remain in trust for the use of the brother and sisters during life, remainder to their children.
    One of the two executors named did not qualify. The testator had no child. He left him, surviving his widow, a brother and two sisters. The personal estate, which consisted almost entirely of stocks, and an interest in seven vessels, was ap praised at $132,136. The real estate, valued at about $32,000, was unproductive, consisting mainly of wild lands in the State of Illinois. On the trial at special term without a jury the court found, as matter of fact, that when the testator died, he supposed his estate worth at least $200,000, and that it would yield a reliable income of not less than $11,000, and that in no anticipated contingency could the net income be less than $8,000 per annum. That shortly after the testator’s death, a commercial revulsion occurred, during which most of the stocks belonging to the estate ceased to pay dividends and his vessels to earn freights. The income fell below $7,000 per annum, and the executor was compelled to pay out a considerable part of it in taking care of the unproductive property. He could not sell the unproductive property without great sacrifice.
    The principal question submitted by the executor, was whether it whs his duty to pay the widow her annuity of $7,000, when the income was insufficient. He also sought the direction of the court as to his duty in respect to selling the unproductive property, and whether, until it could be sold, he should derive the means of preserving it (repairing vessels, &c.) from the income or by sale of part of the productive estate.
    The court held that the widow’s annuity was payable only from the income; that the net income in any year is the limit of the annuity when the income falls below $7,000. It held that the executor could only sell the unsafe and unproductive property, in his discretion, and that no directions affecting the exercise pf his discretion could be given. The judgment having been affirmed at general term in the first district, an appeal was brought to this court by the widow, who had claimed, among other things, that the trusts for the benefit of the testator’s brother and sisters and their children were void, and that she was entitled to share as in case of intestacy, in the estate subject to the annuity given to her. The court, both at special and general term, declined to pass upon these points, confining itself to those questions submitted by the executor in his complaint.

      Alexander W. Bradford, for the appellant.

      Edwards Pierrepont, respondent in pro. per.

      William Bliss, for the other respondents.
   Denio, J.

The only question which I think it necessary to consider, in this case, is whether the bequest of the annuity of $7,000 a year, to the testator’s wife, was specific, in the. sense that if it could not be paid out of the fund indicated— namely, the income of the trust estate — it was to fail, or to abate, in the proportion that the indicated fund should prove deficient; or, on the other hand, whether it was intended by the testator that it should be paid;' at all events the income of his property given to his trustees being pointed out, by way, as it is called, of demonstration. I am of opinion that the last-mentioned construction is the one which we aré bound to place upon the instrument. The authorities upon the question are very numerous; and the most prominent of them have been referred to" by the counsel for Mrs. Edwards, the appellant. It will be seen, by an examination of them, that no positive rule of ready application to every case can be laid down, but that each case will depend upon a consideration of all the material provisions of the will to be construed, and of the extrinsic circumstances respecting the testator’s family and estate, which may be fairly brought to bear upon the question of intent. The leading principle of the cases is, that when the testator bequeathes a sum of money, or, which is the same thing, a life annuity, in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled, merely by a direction in the will that the money is to be raised in a particular way, or out of a particular fund. (Sir James Wigram, in Dickin v. Edwards, 4 Hare, 273.) There is, in this will, a positive direction to his executors (who are also made trustees), to pay to the testator’s wife eight thousand dollars per annum, if he shall leave children, and seven thousand dollars per annum, if he shall not; but, as to the first mentioned sum, it is parcel of the direction, that it is to be paid out of the income of the estate; and it is plausibly argued, that the same qualification is annexed, by implication, to the direction to pay the seven thousand dollars per annum, in the event, which has happened, of there being no children. The evidence, and the admissions of the parties, show that the testator supposed himself to have a clear income, arising upon invested property, sufficient to pay the largest of the annuities, and to leave a considerable surplus of the income, which he destined for the benefit of his brothers and sisters. But their right to participate was to be subordinate to that of the wife, who was to be paid her $8,000, or $7,000, as the case might be, before anything should be paid to them. It now appearing that he was mistaken as to the sufficiency of his revenue to pay continuously even the smallest of the annuities, which the event has shown to be the only one which can be claimed, and that only a portion of it can be paid from the income, the question arises, which was the primary and most material portion of the testator’s intent, and which was, in his mind, the incident to such primary intention. Manifestly, it seems to me, it was that his widow should receive one or the other of the alternate sums mentioned, according to the event. In the first place, this annuity was the only provision made for her, in any part of the will. He contemplated that there might be issue of the marriage between himself and his wife, for he graduated the amount of the annuity by that circumstance; but if the provision is to be strictly conditional upon his estate continuing to yield income, it might happen that his wife and children would be without any means of support, derived from his estate, while the estate itself might be of vendible value to a large amount. It was shown that a large sum had been invested in unproductive lands, from which, of course, no revenue could be expected. • It is not suggested but that the personal property, stocks, vessels, &c., may be converted into money, at some reasonable price. It is shown, indeed, that in the present condition of the property, sufficient income will not be realized to pay the annuity in full; — whether this would be so, if it were converted into money, does not appear from the case.

But it is argued, on behalf of the brothers and sisters, that the testator is to be considered as equally solicitous to bestow a pecuniary benefit upon them as upon his wife, or his wife and children, if he should have children., Hence, it is suggested that his wishes and intentions will not be altogether disappointed, if, upon the failure of income, the body of the estate is kept unemployed during the lifetime or widowhood of his wife for the benefit of his brothers and sisters. This .view seems to me very unreasonable. The brothers and sisters were not the primary objects of these dispositions. They were only to participate in the income, provided it should be so large as to produce a surplus after applying to his wife and children the sum which he thought it necessary for them to have. There failing to be any such surplus, the benefits intended for them were to be postponed, until after her death. But it was only on a contingency that they ’ were then to have any interest; for if the testator should leave children, the brothers and sisters would be wholly excluded from participation. Again, in the event of' there being no children, the brothers and sisters did not occupy so favorable a position as that of devisees in remainder, after the death of his wife; for it was their children, and not themselves, who, upon the event of the extinction of his own family, were to become the final beneficiaries of the estate. And, further, the first paragraph of the fourth division of the will proves, beyond question, that the testator had no such intention as is attributed to him, of confining the widow strictly to a participation in the income, and of preserving the whole of the principal for the benefit of the brothers and sisters, and their issue. The provision is that if there should be children, upon their attaining their majority, the sum of eight thousand dollars per annum should still be reserved for the benefit of his wife. It cannot be pretended that this provision was limited, to the case of his investments yielding income to the required amount, for the direction is positive and unconditional, that such a sum should be reserved for her. If the property, as invested, was unproductive of income, it would be the duty of the trustees, by the purchase of a life annuity, or in some other way, to secure the payment of the yearly allowance mentioned.

If we were to hold that the widow was to have nothing, less the property or securities in which the estate happened to be invested yielded income, and that she was not to be paid the full seven thousand dollars per annum, directed to be paid to her, unless the investments should happen to yield that sum, we should, in my opinion, sacrifice the substance and primary intention of the will for the sake of an incidental provision, inserted for the convenience of the estate, and not intended to limit or control, or to render uncertain or conditional, the provision in her favor; and I think, moreover, that the case is within the spirit of the authorities which have been referred to by the counsel for the appellant. To these may be added, for the purpose of presenting an early and a recent case, The Attorney-General v. Parkin (Ambler, 566), and Colvette v. Middleton (3 Bevan, 520); and, also, for a recognition of the doctrine in this court, Teft v. Porter (4 Seld., 566), Giddings v. Seward (16 N. Y., 365), De Nottebeck v. Astor (3 Kern., 104, 105).

I see no reason for interfering with or attempting to regulate the discretion of the trustees, upon the subject of the sale of the unproductive or the unsafe property. The right of the widow to the annuity does not, in' our opinion, depend upon such sales. The trustees should be guided by the circumstances of the property, and the necessities of the estate. There are not sufficient facts before us to show whether, at present, a sale would, or would not, be judicious.

I am in favor of reversing the judgment of the Supreme Court, and of entering a judgment in conformity with the foregoing views,— to be settled before one of the judges.

Wright, Allen and Smith, Js., concurred.

Gould, J., (dissenting.)

The claim made by the widow that there is no limitation by the will of the principal of the estate, as well as her other claim that the trust is illegal in point of duration, and therefore void, so that sustaining either of her claims would make a case of intestacy and allow her to come in under the statute of distribution for one-half of the personalty, which is far the larger share of the estate; these claims make.it necessary to give a decision on the points thus taken, as they lie back of the questions of the disposition of income and the sale of unproductive property.

That the testator’s nephews and neices are not parties to this suit, interposes no objection to our passing upon these points, since, first, it is not certain, from the tenor of the will, that those now in being will, by surviving their parents, be ultimately entitled; and, secondly, as the widow has not seen fit to ask for their being made parties, or to take objection because they have not been so; it does not rest with her to say that a present decision of these points will not conclude her as well as all others who are parties to the suit.

The third and fourth clauses of the will, so far as they relate to the same subject-matter, are to be construed together; and if one is inconsistent with the other, that is to be held the true, effective clause by which a binding disposition will be made, rather than that by which the will would be rendered inoperative or void. Gruided by this rule, and conceding that the third clause disposes merely of the income in any event, it is plain that the fourth clause, which directs that, on the death or marriage of the wife, the “ estate remain in trust for the use of my said brother and sisters during their respective lives, and the remainder to go to their children,” disposes of the remainder of the estate and not of the income; that is, makes full disposition of the entire trust estate. And in case there be no taker of a part of this estate, under this clause, by reason of the death 'of the brother or one or more of the sisters without leaving a child, then we resort to the third clause, to find where such one-third part of the estate is to go.

We thus find this to be the disposition of the estate: The whole title is in the trustees for the benefit of two classes of persons—one, the widow during life or widowhood; the other, the brother and two sisters “ during their respective lives.” And as the limitation to the widow may (as the event has proved) exhaust the income, or whether it does or not, this part of the limitation is undoubtedly good, and makes a valid trust estate.' The trust to pay to the brother and sisters each one-third of the residue of the income during their respective lives is also valid; and if either of them die childless, “then the share of said child ” (that is, the share that would have gone to the child of the deceased brother or sister, had there been such a child, which share, as the fourth clause is above construed, is one-third of the estate, subject to the trust for the life of the widow, should she survive such brother or sister so dying) is to go to the survivor or survivors of such brother and sisters. If such death occur during the widow’s life (or widowhood) the equitable interest in such one-third vests at once in the survivor or survivors, to be followed by the conveyance of the legal title, whenever the life estate or widowhood is at an end. If such death occur after the determination of the widow’s life, &c., then the conveyance of the legal title of such one-third is to be made at once. This is, for each one-third, respectively, a legal limitation. And wé are not to make void what is legal, by speculating on the possibility of an event by which such a disposition could not be made. So far as it is legal we sustain it, and carry out the intent of the testator as far as may be. When any other exigency occurs, the courts will find for it the appropriate rule.

As' to the position that the widow is entitled to dower in the realty, besides her annuity, it is effectually disposed of by the fact that she has, by accepting her annuity from the trustees, affirmed the estate in them; and that estate is in and of the whole property of the testator, leaving nothing of which to endow her. She has elected to take under the will, and cannot assert a right against it.

Under the trust, then, what are her rights and what is the duty of the trustees ? By the second clause, her annuity is expressly to be paid out of income, $8,000 ; by the third clause, her annuity is reduced to $7,000, so that the testator necessarily supposed the income would exceed the annuity ; and the “ residue of the income,” after paying her the $7,000 (for there is no other legacy to be paid so as to leave á residue), is bequeathed to the brother and sisters. There is no possibility of understanding this otherwise than as a legacy to be paid out of income. And it is equally plain that it must have been intended to be paid out of the net income of the .estate, otherwise,.as the sum of $7,000 is given out of income, and the residue of income is given over, this residue would call for all the gross income of the estate, and the principal would of necessity be annually decreasing, by the amount of all the expenses of the estate. This could never have been intended, especially by one who limited over the principal—all the prin-’ cipal—after life estates.

It is not consistent with this view, that, if the net income of any one year should be unequal to paying the widow’s annuity for that year, she should have a debt due to her from the trust estate, equal to the deficiency, to be paid out of sub-' sequently accruing income. The contingency is one not contemplated and not provided for, and she, as the legatee, sustains the loss caused by omission. So long as the construction of wills is limited to finding and carrying out (as far as the law allows) the intention of the testator, it hardly seems possible to hold that a testator who plainly supposed the income of his estate more than adequate to the payment of an annuity, intended to give an annuity which would, or might, annually reduce the principal of his estate till the payment of any part of the annuity would become impossible by the using up of the whole estate.

As to the power of the trustee to sell, or calling it a direction to sell, it is merely to sell for the purpose of investment in more productive property, "and with no view to the payment of any legacy or .to interfering with the principal'of the estate in any way but to increase it, or make it produce a larger income for the benefit (as intended) of the takers of the residue of the income. . '

Such a power, involving judgment and discretion as to what • may properly be called “unsafe or unproductivejudgment and discretion, also, as to the possibility of selling such property at a price not ruinously low; judgment and discretion, further, in investing the proceeds in safe and productive securities, is necessarily of a nature not to allow the interference of the courts. The testator has selected the person on whom to confer this large discretionarypo wer, and that person is to proceed according to his discretion, while he will be responsible for only the exercise of such prudence as.he uses in the discharge of his own business. While the court have-no right to direct his actions, they see no reason to question his having acted in entire good faith; and the unfortunate results, as to parts of the estate, are in no degree to be attributed to either want of care or want of judgment on his part, but are merely the unforeseen and unavoidable consequences of calamities for which he is not responsible.

There seems no reason why the decree of the Supreme Court át general term, should be disturbed. It should be affirmed.

Davies, J., also dissented.

Judgment reversed.


author: Denio, J.

text:
    Harris v. Ely.
    The liability of an executor to account to a legatee is not discharged by her written receipt of a nominal sum in foil of all demands, nor by her conveyance to him of all her estate upon a passive trust under an ante-nuptial settlement.
    The surrogate has jurisdiction to compel such accounting, to enable the legatee to ascertain what is in the hands of the trustee: until an accounting, voluntary or judicial, he holds the assets of the testator as executor, and not as trustee.

      It seems, that, in case anything be found due the legatee, the decree should be that the executor hold the amount as trustee, unless the legatee.entitle herself to receive it, by a certificate under the act (oh. 375 of 1849, § 2), to protect the rights of married women.
    Appeal from a judgment of the Supreme Court, reversing a decree of the surrogate of Washington county, which required Chester Harris to render an account, as executor of Sylvanus Thomas, deceased. The testator died in July, 1836, leaving a will, by which he gave all his real and personal estate, after the payment of debts, to his widow, Mira Thomas. The will was admitted to probate, and letters testamentary issued to Harris, the respondent here, in August, 1836.
    On the hearing before the surrogate in July, 1854, the executor’s inventory was proved, showing personal assets to the amount of $976. - He proved the execution by Mrs. Thomas, the widow, on the 19th of January, 1842, of a receipt in these words: “ Received of Chester Harris, executor of Sylvanus Thomas, deceased, one dollar in full of all demands up to this date. (Signed) Mira Thomas.”
    He also proved the execution of a deed on the same day by Mrs. Thomas and Levi Ely, which, after reciting that the two last named contemplated marriage, conveyed to Harris a farm and all the personal estate of Mrs. Thomas in trust, and that he should suffer her to enjoy the property and receive and appropriate the income to her own use, and that he would pay her the avails and proceeds of such estate. Mrs. Thomas and Ely were married immediately after this deed. The respondent insisted that, by force of these instruments, Mrs. Ely had no demand against him, or, if any, that it was in the capacity of trustee, under the ante-nuptial agreement, and not as executor, and that the surrogate had no jurisdiction to order an account. The surrogate held otherwise; and his decree having been reversed on appeal, Mrs. Ely and husband appealed to this court.

      Charles R. Ingalls, for the appellants.

      James Gibson, for the respondent.
   Denio, J.

It was clearly proven that the receipt was not given upon any adjustment of accounts between the executors and the legatee. Ho payment beyond a nominal one is expressed, and none is pretended to have been made at the time it was given. At the best, it was only an acknowledgment by a parol writing that the executor had not at that time anything in his hands, as executor, belonging to Mrs. Thomas as lega- ' tee. The paper does not profess to be an admission that the executor had fully administered the estate of the testator, but only that he had accounted for all the moneys which had.come to his hands as executor which belonged to her up to that date. The receipt, therefore, was no bar to the accounting sought.

It remains to consider the effect of the marriage settlement. That instrument contains a conveyance in form of all the -real and personal estate of Mrs. Thomas to Mr. Ely, the-executor, as her trustee. But the trust was a passive one. It was, to suffer and permit Mrs. Thomas “to occupy, possess and enjoy all and singular the said property,” &c. It clothed the trustee with a nominal legal title only; but, in the view of a court of equity, her- interest as legatee in the estate of her deceased husband remained as it was before. The legal effect of the instrument as to the personal property was to prevent the marital rights of the husband she was about to marry from attaching ; and that was, beyond doubt, the only operation it was intended to have. ' If it has a further effect to discharge the trustee or executor, it was aside from the- design of the parties, and is the result of some technical principle operating to produce a result which was not contemplated. I think it has no such operation. The executor, as such, had a legal title to the estate of the deceased before the marriage articles were executed. He had no greater estate after they took effect. He held nothing as trustee under the marriage articles, until he had accounted with the legatee either by a voluntary arrangement, or by a decree of the surrogate or some court having jurisdiction. Until that event he held, the assets as executor, and not as trustee under the settlement. It was important to the legatee to ascertain the extent'of the property which she had in the estate of the testator, so .that it might be known what was in the hands of the trustee under the ante-nuptial settlement. This could only be ascertained by a settlement or an accounting. Suppose, before any settlement or accounting, the respondent had been removed, and an executor de bonis non had been appointed according to the statute: could there be any doubt but that the new executor would'have been entitled to the assets not paid out to creditors or legatees ? I think not. There was not, therefore, such a merger of titles, when the respondent became trustee, as to enable him to say that he did not any longer hold the assets as executor, but had become the owner of them in his character as trustee for Mrs. Thomas.

It follows from what has been said that the respondent continued to hold the assets, or their produce, if he had converted them into money, in his character as executor of Sylvan us Thomas, and that the appellant, Mrs. Ely, as the equitable owner and party really entitled, had a demand against the personal estate of the "deceased as legatee under his will. She was, .therefore, entitled, according to the letter, as well as the spirit, and intention of the statute, to an account of the administration. (2 R. S., p. 92, § 52.) It does not follow that if a sum should be found due her upon the taking of the account that the respondent would be ordered to pay it over to her. The nominal trust continues notwithstanding the late statutes concerning married women, and the decree ought probably to be that the executor should hold the amount remaining in his hands as trustee under the settlement. But the legatee may entitle herself to have it paid to her, notwithstanding her coverture, by procuring a certificate under the second section of the act of 1849. (Ch. 375.)

An executor may be compelled to render an account, though the party applying is not entitled to a decree for the payment of any amount. Indeed the surrogate may call for an account upon his own motion. (§ 52, supra.) The rendering an account to the surrogate, by an executor or administrator, and the settlement of such account including the decree to pay over, are not necessarily one proceeding. The former may be required where no settlement or decree for distribution can at the time be made. (Westervelt v. Gregg, 1 Barb. Ch. R., 469.) Hence an account has been ordered in the ecclesiastical courts at the instance of a residuary legatee who had given a release to the

executor, the court saying that it could not try the validity of the release, though it might be tested in the temporal courts; ' and that the account might be the means of discovering an unfair settlement. (Kenny v. Jackson, 1 Haggard, 105.) I do not doubt but that with us the surrogate would have power to determine a defence of that character which might be set up against the payment of a legacy, as the jurisdiction of that officer is different in some respects from that possessed by the spiritual courts in England; but in whatever tribunal the fairness of a receipt or release should be litigated, the state of the account would be a material circumstance bearing upon the question. The former surrogate of New York, Mr. Bradford, did not consider, in a case before him, that an assignment of his demand by the applicant for an account operated as a bar. (Bonfanti v. Deguene, 8 Bradf., 629.)

It is not intended in giving judgment in this case to pass upon the effect of the lapse of time upon the claim of Mrs. Ely, or upon the evidence tending to show that she had accepted the notes which had been taken by her executor for a portion of the assets; and had collected them by means of the agency of her father. The delay in calling upon the executor has been very great, and he will be entitled to a corresponding measure of indulgence in respect to the allowances to be made him on the settlement, and the presumptions to be indulged in. But we think it was erroneous to dismiss him altogether without his rendering any account.

The decree of the Supreme Court ought to be reversed, and the proceedings remitted to the surrogate through that court, to the end that he may proceed upon the citations obtained by the respondents.

Selden and Sutherland, Js., expressed no opinion, all the other judges concurring,

Judgment reversed.


author: Smith, J. Wright, J., (dissenting.)

text:
    Meads, Receiver, &c., v. The Merchants' Bank of Albany
    The certification of a check as good by the authorized officer of a bank is equivalent to the acceptance of a bill of exchange payable on demand, and makes the bank primarily liable to the holder until discharged by payment, release, or the statute of limitations.
    So of the certification as good of a promissory note payable at the bank, where the course of business between banks is, instead of actually paying the notes of customers when in funds on presentment, to mark them as good and settle in the exchanges of next day. Such certificate is an absolute engagement to pay the bank’s own debt, and not a guaranty or promise for the benefit of a third person.
    When a note is thus certified by the teller falsely, the bank not having funds for its payment, it is liable only to a holder in good faith and for value.
    A holder who, ignorant of the falsity of the certificate, treats it as payment, and omits to charge an indorser, is entitled to recover.
    His delay, at the request of the maker of the note and for his accommodation, after its certification, to obtain actual payment, does not discharge the obligation arising from the certificate.
    Appeal from the Supreme Court. Action upon a certificate of deposit for five thousand dollars issued by the defendant. The defendant set up by way of counter-claim, a demand upon a check of J. B. Plumb, upon the Bank of the Interior, of which the plaintiff was receiver, for four thousand dollars, certified by the teller of the bank as good, and also a note of Plumb for five thousand dollars, likewise certified by the teller of the Bank of the Interior as good.
    The trial was before a referee, who found that the defendant on the 25th of February, 1860, was the holder of said note of five thousand dollars; that it fell due'that day, and was presented to the Bank of the Interior for payment according to the course of business, and was then and there indorsed by the teller of said bank upon its face with the words “ Good.
    Kirtland, Teller.”
    That the usual mode of transacting business among the hanks of Albany, in respect to the collection of mercantile paper held by one bank, payable at the counter of another,, in case the same is to be paid, is not to require or receive payment in money on the presentation of the paper, but instead thereof to take back the paper presented, certified in a manner similar to that in .which the note above mentioned was certified ; that the banks are accustomed to settle daily their transactions with each other, and the paper so certified, is usually settled by being included in the bank settlement of the day succeeding that on which it was certified, and is treated and acted upon as being an obligation of the bank so certifying the same.
    The said note was indorsed by one Street, and after it was so certified, it was not protested for non-payment or -the indorser charged.
    On the same day, and after such note had been so presented and certified, Plumb, who was the president of the Bank of the Interior, applied to the defendant’s bank to hold said note to enable him to get it renewed, and not send it in the next day among the exchanges; and the defendant did so upon 'such request.
    At the time when the note was presented for payment the account of Plumb was not good for an amount sufficient to pay it, but was overdrawn, and was not afterwards good before the bank failed; but this was not known to the defendant.
    Plumb was indebted to the defendant on two promissory notes signed by him for ten thousand dollars, for which it held certain stocks as collateral security, these stocks were given up on the 6th of March, 1858, and the aforesaid check for four thousand dollars given therefor. Said check when given was good for the amount thereof, but the account of said Plumb was afterwards overdrawn and so remained till the bank failed, and Plumb became insolvent. The said check when given was received and held by the defendant as security for the balance due on the said two notes of Plumb in lieu of the stocks given up to him. Such checks are customarily sent by the banks holding them, to the banks certifying them, on the morning after their receipt as part of the exchanges; and such checks are treated and acted on as being obligations of the bank certifying them. The practice of certifying checks was never authorized by the board of directors of the Bank of the Interior by any resolution of the board, but the same was, openly and without concealment, done in the usual course of business of the bank by the teller, with the knowledge of the officers; and checks and notes so certified, are uniformly dealt with as imposing obligations on the certifying bank, and the practice was never questioned by the bank or its officers.
    Plumb requested the defendant not to send said check in for payment among the exchanges when the' same was certified, and it was not sent till the bank failed.
    The referee held, as matter of law, that the teller of the Bank of the Interior had authority to certify checks and notes, and that such notes became obligations of the bank, and that the note and check in controversy were obligations of the Bank of the Interior, and that therefore nothing was due the plaintiff, but the plaintiff, a receiver, was indebted to the defendant in the sum of $4,733.44; and he ordered judgment accordingly.
    This judgment was affirmed at general term in the third district. The defendant appealed to this court.

      Amasa J. Parker, for the appellant.

      William H. Learned, for the respondent.
   Smith, J.

Upon the findings of the referee, upon the facts that the practice of certifying checks, by the teller of the Bank of the Interior, was openly done, in the usual course of business, with the knowledge of the officers of the bank, and such checks uniformly dealt with and treated as obligative of the bank, his conclusion of law, that such teller had authority to certify checks and notes, can hardly be doubted, and is clearly correct; though it is more properly an inference of fact than of law.

Assuming, therefore, that the teller was duly authorized to certify checks and notes, when presented at the counter of the bank, in the ordinary course of business,— which is clearly, as far as such authority can be implied, from custom, or allowed, without distinct proof of more extensive power, specially committed to him,— the facts in respect to the liability of the bank upon the $4,000 check and the $5,000 note present different questions, which should be separately considered.

■ The $4,000 check, it appears, was drawn, and certified good, by the teller, before its delivery to the defendants.

When it was presented to the teller for his certificate in respect to its goodness, the account of Plumb, the drawer, was, in fact, good for an amount exceeding the sum specified in this check. It was, therefore, not improper for the teller to certify this check. His certificate, that it was good, was a true representation of the state of the account of Plumb with the bank, and bound the bank to hold and retain the amount for which the check was drawn, to meet it, on presentation by any person by whom it might be held. It was equivalent to the acceptance of a negotiable bill of exchange, in favor of the holder, for that amount, by the bank. (Farm. & Mech. Bank of Kent Co. v. Butchers' & Drovers' Bank, 16 N. Y., 128.)

The defendants received this chéck for value. The referee ' finds that they gave up to Plumb, at the time of the delivery of the check, eight bonds of the Milwaukee and Mississippi Railroad Company, which were then held by them as collateral to two notes of Plumb, and were worth the amount which Plumb then owed them on his said notes, being $8,500 and interest, from the first of January previous; that the check was received and held by the defendant, in lieu of said bonds, and as security for the payment of the balance due on the said two notes of Plumb.

When the check was so delivered to the defendants by Plumb, he requested that it should not be sent into the Bank of the Interior, among the exchanges; and such check was not. presented to the bank for payment till. its failure, which, it appears from the pleadings, occurred in the spring of 1861; —the plaintiff being appointed receiver on the 21st of May, 1861. The cheek is dated March 6, 1858, and was thus retained by the bank, in hand,- upwards of three years.

Upon this statement of the facts, it is quite clear that this check was not received by the defendants in the ordinary course of business. It was payable on presentation; it was equivalent to cash; it was a mere substitute for so much money in bank. It is foreign to the whole office and design of. a check to take and receive it to be held as security, as much as it would to take the same amount in bank bills or coin. When the defendants took this check to hold as security for Plumb’s debt, and agreed not to send it in with the exchange, they knew this was a departure from the usual course of business in respect to checks. If, therefore, it was essential to the plaintiffs’ right to enforce this check as an accepted bill by the Bank of the Interior, that they should . have received it in the ordinary course of business, clearly the defendants could not succeed. They clearly did not so receive it.

. But I do not think the defendants’ right to recover, upon this check, depends upon this condition. The check was, in fact, drawn upon funds in bank, and was accepted, with funds in hand, by the bank. The indorsement, by its teller, upon the check, that it was good, immediately bound the bank to pay it, thereafter, on presentation. It was then an accepted bill, with funds in the hands of the acceptor. It was not an accommodation bill; the bank, having accepted the check, became the principal debtor, and was bound to keep the funds to meet it.' A liability, once incurred, remains until it is discharged, by payment or release. I can see no principle upon which it can be held that the Bank of the Interior ever discharged its obligation to pay this check, or became in any way released therefrom. Lapse of time would not effect such discharge, till the statute of limitations should attach.- In the case of The Farmers' and Mechanics' Bank of Kent County v. Butchers' and Drovers' Bank (supra), the checks were dated February 16, 1852, and certified on their face immediately. They were applied in payment of instalments due upon a subscription to stock, and afterwards deposited as collateral security, and held till February, 1853, before they were presented for payment. It was not considered that delay in their presentation affected the question of the liability of the bank to pay them. Indeed, Judge Comstock, who dissented from the opinion of the court, said that the court below had regarded these acceptances as payable on demand; and, for that reason, the delay in presentation was considered no objection to a recovery against the acceptor. “In my judgment (he said), the court was clearly right, in this construction, and right, also, in the consequence drawn from it, that the certificates, as an acceptance, if duly authorized, are obligations, as in other cases, until paid, or the statute of limitations should attach as a bar.”

I do not see, therefore, upon what principle the judgment below, so far as relates to the four thousand dollar check can be disturbed. •

The question in regard to the note stands upon somewhat different ground.

The presentation of the note at the counter of the bank on its maturity for payment, was in the ordinary course of business ; and so was the making of the certificate then and there indorsed by the teller, certifying that the same was good. The legal effect and force of such certificate was, that the maker had deposited funds in the bank to meet said note, and that the bank then held the same in deposit for that purpose, and would pay the amount upon request. The course of business among the banks at Albany was such as to make such presentation and indorsement equivalent to payment of the note by the maker, and the substitution of the Bank of the Interior as the debtor of the defendants for the amount of the note payable, in fact, in the exchanges on the next day. But the indorsement was, in effect, an absolute engagement on the part of the Bank of the Interior to pay the note, and dispensed with protest or steps to charge the indorser, as much so as if the defendant had actually received the cash on the presentation of the note, instead of taking the certificate of the teller that the note was good. This certificate was in fact false, and made by the teller in violation of his duty, and in fraud of the bank of which he was an officer. But it is found by the referee that the defendant was ignorant bf this fact, and did not know when said note was so presented and certified, that the account of the said Plumb with the Bank of the Interior was not good for the amount of the note.

The defendant was induced by Plumb to hold on to the note after it had been so certified, and not send it in for payment the next day with their exchanges. But I cannot see that this fact affects their rights any more than did delay in the presentation of the four thousand dollar check.' The bank had become the principal debtor, and could not be discharged without payment or release, if the defendants are otherwise entitled to hold them responsible for the note. • The defendant clearly cannot hold the Bank of the Interior responsible upon the false certificate of its teller, except upon the ground that it is a holder of it for value, and received the same in good faith. In this particular, the case stands upon the same ground with the case' of the Farmers' and Mechanics' Bank v. The Butchers' and Drovers' Bank (supra). In that case the certificate was false and fraudulent, and the question was, whether the defendants were liable, and it was held that the plaintiffs being Iona fide holders for value, were entitled to recover. In this case it appears that the defendants having presented the note and obtained the certificate that it was good, took no measures to charge the indorser or enforce payment of the maker till he failed, “ refraining from these acts ” as the referee finds, “ in reliance upon said certificate.”

This relinquishment of the security of the indorser, and' the taking of this certificate in payment of the note, makes the defendants bona fide holders of. it for value, within the case of Young v. Lee (2 Kern., 554), and the cases on this subject; Stalker v. McDonald (6 Hill, 93); Bank of Salina v. Babcock (21 Wend., 499; 20 id., 115).

The statute of frauds has nothing to do with this question. The force of the certificate indorsed on the check and note, in both cases, is an admission of funds in hand to meet the check and note, and an agreement to pay such funds on presentation of the note or check. It is not an engagement to pay the debt of another; but, upon its face, the engagement, in legal effect, to pay their own debt to the party entitled to it. The case of The Farmers' and Mechanics' Bank of Kent County v. The Butchers' and Drovers' Bank, answers this and all the other objections raised to the right of the defendants to recover, upon this check and note.

I see no ground upon which the judgment can be interfered with by this court, and think it should be confirmed.

Denio, Ch. J., Davies, Sutherland and Allen, Js., concurred.

Wright, J., (dissenting.)

The check of Plumb on the Bank of the Interior, for $4,000, dated on the 6th of March, 1858, if duly certified, imposed an obligation on the bank, substantially the same as that assumed by the acceptor of an ordinary bill of exchange. That obligation was to retain the amount for which the check was drawn, and which, by the certificate, it admitted it had in hand to the credit of the drawer, to meet the check when presented, and to pay the same to the holder, on demand. (Farmers' and Mechanics' Bank v. Butchers' and Drovers' Bank, 16 N. Y., 125.) When the check was certified, Plumb’s account with the bank was good for the amount, and hence the bank was not, in any sense, or as to any person, an accommodation acceptor but the .principal debtor; and would have been liable even to a party who had not parted with value for the check. Certifying a check, when the drawer’s account is good, is substantially accepting a bill of exchange, with funds of the drawer in the acceptor’s hands. Hor is delay in the presentation any objection to a recovery against the bank. The certificate is to be ■ regarded as an acceptance, payable on demand, and was obligatory until paid, or the statute of limitations should attach as a bar. The Bank of the Interior, by certifying the check, became the principal debtor, and not the surety; the acceptor, not the drawer; and it had the money and ought to have it still. So far as relates to the check, therefore, the single question is, was it duly certified ? The certificate was made by the teller of the bank, ■ and as the referee finds, in the usual manner of certifying checks. No point was made by the. plaintiff before the referee as to the form of the certificate. It was found, as a matter of fact, that the teller had been in the practice of certifying checks in the ordinary course of business, and with the knowledge of the officers of the bank, and without objection. This, I think, was enough to sustain the legal conclusion of the referee, that the teller had authority to certify.

Different questions arise in respect to the note. The-defendant had discounted a note made by Plumb, and indorsed by one Street, for $5,000, payable at the Bank of the Interior. On the 25th February, 1860, the day of its maturity, the same was presented at the Bank of the Interior for payment. The account of Plumb at the bank was not good for an amount sufficient to pay the note; but, on the contrary, such account was largely overdrawn. Instead of protesting the note, and notifying the indorser of its non-payment, the teller of the bank at which it was payable wrote over its face the words, “ Good. Kirtland, Teller,” and returned it to the person presenting it, on behalf of the defendant. The note was not sent into the Bank of the Interior, among the exchanges of the succeeding day; but the same was retained by the defendant, at the request of Plumb, to enable the latter to get a note in renewal, indorsed by Street. It was not afterwards renewed, nor was it presented to the Bank of the Interior for payment, nor sent in among the exchanges of that bank, by the defendant, until after its failure; nor was it ever entered on the books of either bank.

If the Bank of the Interior is to be held for the payment of this note, it is because the certifying, by its teller, thaf it was good,” legally imposes on it such obligation. I cannot adopt this view. The bank had no interest in, nor was it in any way a party to, the note; and the transaction was entirely out of the usual course of banking business. Implying, from the words, “ Good. Kirtland, Teller,” a promise to pay the note, it would be a promise to pay the note of. a third person, and for his accommodation. A banking corporation has no power to b°e-come the mere surety for another, upon a contract in which it has no interest, or lend its credit in any way for the exclusive benefit of other parties. The Bank of the Intérior had no power to bind itself, either by guaranteeing or promising to pay Plumb’s note; and such contract cannot be enforced. No question can here arise, whether the defendants were innocent holders of the note, for a valuable consideration; as it was not paper which the bank had made, indorsed or put in circulation, and which had been subsequently purchased by the defendants for value, without notice that it was unauthorized. The defendants were parties to the original transaction, and are presumed to know the extent of the corporate powers of the bank with which they were directly dealing.

Again, there was, in fact, no consideration for any obligation, on the part of the Bank of the Interior, to pay the note. Plumb had no money in its hands that it could appropriate to its payment. Had the agent of the defendants taken the note, on the day it fell due, to the principal financial officer of the Bank of the Interior, and inquired of him, “ Will you pay this note of Mr. Plumb, if we send it in, to-morrow morning, in our exchanges ? ” and the cashier had answered that he would, the promise would have been void, as without consideration ; and it would have been equally void, if both question and answer had been in writing.

No legal obligation of the Bank of the Interior to pay the note to the defendants can be raised, from any custom or mode of transacting business, among the Albany banks, in respect to the collection of mercantile paper. A custom like that found by the referee cannot bind the bank, or impose any obligation, in law, on it, to pay the note. Though certifying that the note was “ good,” it might, the next day, refuse to pay; and payment could not be enforced. But it is shown, in this case, that when notes are so certified, it is-for the purpose of having them put into the exchanges of the next day. They are never so certified for the purpose of being held as a continuing obligation of the bank- Custom only authorizes such a certifying for the purpose of immediate adjustment. Assuming, therefore, that, by custom, the words, “Good. Kirtlánd, Teller," mean that the bank will make the note good, if brought in the next daily exchanges between the banks (and this is the most that can be claimed), the defendants failed to comply with the condition, and retained it several months, until the maker had probably become insolvent, and the bank' had failed. Besides, the transaction was entirely out of the usual course of business between banks. The note was never entered upon the books of either bank. It was held by the defendants, at the maker’s request, after being certified, for the purpose of getting another indorsed by Street, for renewal. This was by agreement with the defendants; and under that agreement it was held until the bank failed. To sustain a claim on such a transaction would be little short of a fraud upon the bank.

I think the referee erred in the conclusion that the note became in law an obligation of the Bank of the Interior to the defendants. The judgment of the Supreme Court affirming that of the referee should be reversed, and a new trial granted, with costs to abide event.

Gould, J., concurred in this opinion.

Judgment affirmed,


author: Denio, Ch. J. Allen, J.

text:
    Wright v. Weeks et al.

    A contract required by the statute of frauds to be in writing, cannot be partly in writing and partly by parol.
    Thus, a contract for the sale of land, where the writing fixed the price, but referred to “ terms as specified,” not in the memorandum, cannot be made good by parol evidence of the time agreed upon for payment.
    Whether the vendee can waive any credit and enforce the contract as one for present payment, guxre.

    Appeal from the Superior Court of the city of Hew York. Action to compel a specific performance of a contract by which, as the plaintiff alleged, the defendant Weeks agreed to sell to him certain lots of land in that city.
    On the 11th March, 1857, Weeks demised the premises in controversy to the plaintiff for one year from the 1st day of April ensuing, at a rent of six hundred and fifty dollars, payable as to the first quarter, in advance, and afterwards monthly in advance. The lessee agreed not to assign the lease or under-let the premises without the written consent of the lessor. At the same interview at which the lease was executed, but after it had been signed and delivered, the defendant signed and delivered to the plaintiff an instrument on a separate piece of paper, in the following words:

      “ This is to certify that I hereby consent to the re-letting of the stables on the premises 157, 159 and 161 Goerck street, and will sell the said premises to the said Williapr Wright [the plaintiff], at any time within three months from April 1, 1857,. for the sum of six thousand five hundred dolíais, upon the terms as specified. March 1, 1857.
    HENRY A. WEEKS.”
    The complaint alleged in effect that the terms referred to in the concluding line of the paper, related to the time of payment of the price mentioned, and were as follows: That one thousand five hundred dollars of the said purchase-money was to be paid in three months from April 1, 1857, when the deed was to be delivered,. and one thousand dollars on the first day of May, 1858; and that as to the residue, four thousand dollars, the 'plaintiff was to assume the payment of a mortgage of that amount existing upon the premises, and pay it according to its terms; that the quarter’s rent by the lease stipulated to -be paid in advance, was to be deducted from the one thousand five hundred dollars agreed to be paid down.
    On and before April 1st, the commencement of the term, the plaintiff paid one quarter’s rent, $162.50.
    Within the three months mentioned in the paper,' the defendant Weeks sold the premises to the other defendants Moore and Rayner, with a knowledge on' their part, as the plaintiff claimed, of the agreement in his favor. Afterwards, the plaintiff tendered performance according to the terms above mentioned, and demanded a conveyance from Moore" and Rayner, which was refused.
    On the trial before the. late Mr. Justice Dube, the plaintiff proved and gave in evidence the above-mentioned instrument, and proved the other facts stated; and he then offered to prove by parol, the agreement as to the time -and manner in which the payments were to be made as above.stated. The defendant’s counsel objected, but the judge received the evidence subject to the objections, and with a statement that it should be stricken out in case the court should deem the same to be inadmissible. The plaintiff then proved the agreement by his own testimony and that of another person, substantially as alleged. It was made at the same interview at which the lease and the written agreement to sell were signed. The plaintiff having closed the evidence on his part, the judge decided to strike out the proof of the parol agreement and to dismiss the complaint, to which the plaintiff’s counsel excepted. The judgment against the plaintiff having been" affirmed at a general term, he brought this appeal.

      John H. Reynolds, for the appellant.

      Francis Byrne, for the respondent.
   Denio, Ch. J.

In the view we take of this case, it will not be necessary to decide whether an agreement by an owner of real estate, to allow another person the option to purchase it within a fixed period, upon definite terms, would be enforced specifically in equity,.if the evidence of such arrangement was committed to writing, according to the requirements of the statute of frauds; for we are of the opinion that the agreement in this case is in that respect, fatally defective. The writing contains all the requisites to a complete contract of the nature referred to, that is, of an agreement by the defendant to sell the lots to the plaintiff, if he should elect within the time mentioned to purchase them, except a statement of the time or times within which the purchase price should be paid. This part of the agreement was suffered to rest in parol, and was referred to in the paper signed by the defendant as “.the terms as specified.” This reference was to a parol agreement made simultaneously with the signing of the written instrument, in which the minds of the parties met upon the point left unexplained in that instrument; and the question is, whether a parol agreement, thus referred to in a written contract, is made parcel of the contract, so as to satisfy the statute of frauds. It must be kept in mind that the part of the agreement existing in parol is just as necessary to the plaintiff as the portion which was committed to writing. He does not offer to pay for the land presently, and would not, so far as we know, desire to avail himself of the contract if such were its effect. At all events, he cannot maintain this suit except upon the footing of a contract, by which time was to be given for the payment of the greater portion of the price of the land. If he had chosen to waive the stipulations respecting credit, and to consider the price as payable immediately, or within the three months mentioned in the paper, and had offered performance accordingly, a different question would have been presented, which it is not now necessary to consider. A case to be presently mentioned appears to hold, that even under such circumstances, the agreement would not be enforced.

I think the parol evidence which the judge received, but finally rejected, would have been admissible, if the case had arisen under an agreement not required by statute to be in writing. An express reference by the terms of a written instrument to a parol contract, whether made before, or at the same time, would not require the exclusion of such verbal contract, under the rule that a written instrument merges all parol stipulations made at the same time on the same subject. The reference in the paper to the engagements which were allowed to rest in parol would take the case out of that rule. But the present is a contract which the statute declares shall be void, unless it, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the vendor of the land or his lawfully authorized agent (2 R. S., 135, §§ 8, 9). It is the obvious sense of the enactment that all the material parts of such a contract should be embraced in the writing. The policy which the act is intended to enforce, arose out of a distrust of oral testimony, by which it was supposed that contracts to sell land, among some other arrangements, might be falsely set up, or, when actually made, might be perverted or changed by fraud, perjury, or mistake. But if any of the material terms of the bargain could be left out of the writing and be supplied by parol, the greater part of the mischief intended to be guarded against would remain. Thus if, as in this case, the terms of payment were the only portions of the contract depending upon verbal testimony, they might be so stated as materially to diminish the value of the bargain to the vendor: and so it might be proved to have been agreed, as here it probably was agreed, that a sum of money which, when advanced to the vendor, was applied on another account, should be made to represent a part of the purchase price of the land, and thus virtually to diminish the amount of the purchase-money named in the writing, There would seem, it is true, to be a stronger reason for receiving the parol portion of the bargain where the writing expressly refers to it, as it does here; but the statute is addressed to the courts and cannot be dispensed with by the consent of parties. They can, if they please, perform a contract, though there is no such evidence of it as the law would require if it were disputed; but, where the question is as to its having ever been made, no evidence can be received except such as the law requires. If a reference in a writing to a verbal agreement would let in that agreement, where the subject was one which the statute required to be in writing, it would be sufficient for parties desiring to avoid the trouble of reducing their bargains td writing, to sign a statement that they had contracted verbally respecting a given subject, and they would thus dispense with the statute. These views seem also to be well settled by authority. Mr. Blackburn in his treatise on Sales, after reviewing the English cases up to that time, states the doctrine as follows: “If the reference (in a written statement). is to something verbal, or ultimately to a writing, through the medium of something verbal, the common law would take the whole together as showing what the contract is; but as one link in the evidence is not in writing, it will not in general operate as a memorandum in writing to take the ease out of the statute” (p. 49). And in another place, the same writer speaking of cases where the name of one of the parties does not appear in the written, contract, states the rule thus: “ When the party is not designated at all, it is on the face of it defective, as containing only part of a "contract; so that it is apparent that the agreement between the parties must have been partly not reduced to writihg at all; when that is the case, the common law allows the contract to be proved by the writing and by parol, so that the writing shows the terms of the contract, and the parol shows with whom it was made. The statute, however, is not satisfied; for, though the bargain is shown, it is not in writing ” (p.-56). The first of these extracts was repeated with approbation by Baron Bramwell, and applied by the Court of Exchequer Chamber in Bailey v. Fitzmaurice (8 Ell. & Blackb., 664). That case was an action on a contract for the sale by the plaintiff to the defendant of certain leasehold premises, which contract was alleged to have been made by an agent of the defendant, on his part. The defendant, after considerable negotiation, had written a letter to the plaintiff, in which, referring to the agent, he said, “ What he has done for me I know not, but of course I will support him in all he has done for me,” &c. One view of the evidence was that a material branch of the contract was made out by a verbal communication between ■ the plaintiff and the defendant’s agent. If that feature' of it was not established in that way, it was not shown at all. It was held that there was either no -agreement as to the point referred to, or, if there was, that the writing did not contain it. The case of Davis v. Shields, decided in the late Court of Errors (26 Wend., 841),- is in point to show that where the written contract for the purchase of personal property is complete, except a statement of the term of credit, that cannot be supplied by parol so as to satisfy the statute of frauds. Tn that case, as in the present, a period of credit was actually stipulated for, but the writing did not mention it, and the contract was for that reason held void, as hot satisfying the statute, though the vendee offered to waive the credit and pay the price at once. I have referred indiscriminately to cases arising under the branch of the statute which relates to the sale of goods, and to those under the sections more immediately relied on by the defendant. There is not, as I think, any difference between them so far as the present question is concerned.

We are not referred by the plaintiff’s counsel to any case or dictum, in support of the position that a contract required to be in writing by the statute of frauds may be partly in writing and partly by parol, and we think there are not any such.

We conclude that the Supreme Court did not commit any error in holding that the plaintiff could not prevail. There must be a judgment of affirmance.

Allen, J.

The statute of frauds declares that every contract for the sale of any land, or any interest in land, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. (2 R. S., 135, § 8.) Without considering whether the paper writing relied upon by 'the plaintiff is an agreement on the part of Weeks, or simply a proposition not accepted by the plaintiff, and therefore not obligatory upon the signer, under any circumstances, I prefer to rest the decision of the cause upon the insufficiency of the writing, in form, under the requirements of the statute of frauds.. In cases not within the statute, parol evidence may be admissible, in aid of written agreements, and to give effect to them, when it would not be admissible in respect to contracts required by the statute ,to be in writing. In the one case, the writing is essential to the validity of the contract, and is matter of substance, while in the other, it is but the memorial or evidence of it, adopted, by the parties, for their convenience; and the admissibility or effect of parol evidence concerning it, depends whplly upon the rules of evidence; and the contract, whether in writing or verbal,'or partly written and partly verbal, is valid, when established by competent testimony of any kind; so that the adjudications, in actions upon contracts not within the statute concerning the admissibility of parol evidence, do not aid us, in passing upon cases arising under the statute. The statute was passed to prevent fraud and perjury, in the establishment of fictitious or misrepresented contracts; and its object can only be effected by requiring not only the fact that such contract was made to be evidenced by writing, but that the contract itself, the entire agreement with all its terms and conditions, shall be in writing, Fraud and perjury may be as successful and as dangerous in interpolating or misrepresenting terms and conditions, as in describing the parties or subject matter of a contract. Hence, our statute requires the contract, or some memorandum expressing the consideration, to be in writing. It does not prescribe any particular form of words; but it does make the writing of the essence of the contract, and requires an agreement for the sale of lands to be written, and in such terms that it can be ascertained, to a moral or reasonable certainty, what the parties mean. If the agreement be vague and indefinite, so that the full intention of the parties cannot be collected from it, it cannot be said that the contract is in writing, and it is therefore void. If the parties have used abbreviations or technical terms, or terms of trade, evidence may be given, by parol, to show what meaning such abbreviations and terms had acquired, by usage and custom, but not in what sense the parties used them. (Cross v. Eglin, 2 Barn. & Ad., 106; Salmon Falls Man. Co. v. Goddard, 14 How. U. S., 446.) So an agreement need not be perfect by itself. It may be made certain and definite, and thus valid, under the statute, by reference to another writing, as well as by incorporating the entire contract in one paper. But the reference must be to another paper, and so distinct as to make that paper a part of the contract itself. (Kenworthy v. Schofield, 2 Barn. & Cres., 945.) The parties cannot unite two papers, so as to make them unitedly const!tute a valid contract, unless'they are physically joined, or the intention to unite them appears on the face of the papers. If the connection between two papers depend upon verbal testimony, or if the reference in the written memorandum is to something verbal, the whole evil intended to be remedied by statute will be experienced. The writing being only one link in the chain of evidence to establish the contract, the contract is not in writing, and the case is not taken out of the statute. Judge Holroyd, in Kenworthy v. Schofield (supra), says: “It appears to me, that you cannot call that a memorandum of a bargain, which does not contain the terms of it.” It was decided, as early as 1804, in Wain v. Warlters (5 East., 10), that a writing could not be a memorandum of an agreement, unless it contained the whole agreement,— that is to say, the parties and the consideration and the subject matter, as well as the promise,—and this is now well established as law.- It was then held that the word agreement, in the statute, included not only the promise, but the consideration for it; and that parol evidence could not be given of the consideration of a promise, which, upon the face of the written engagement, was a nudum pactum. Our statute in terms requires the consideration to be expressed. If the consideration and promise cannot both be ascertained with precision, from the writing, the agreement will not satisfy the requisitions of the statute. (Abeel v. Radcliffe, 13 J. R., 297; Dodge v. Lean, id., 508; Baptist Church v. Bigelow, 16 Wend., 30.) A covenant in a lease to let the lot at the expiration of the term to the lessee, is void for uncertainty, as not expressing the term or rent, upon the principle that every contract in writing, under the statute of frauds, must be certain in itself, or capable of being made so by reference to something else, whereby its terms can be ascertained with reasonable precision. (Abeel v. Radcliff, supra.) When the subject matter of the contract is not so described that it can be ascertained from the written memorandum, it is void. (Rollin v. Pickett, 2 Hill, 552; Bayley v. Fitzmaurice, 8 E. & B., 664.) When the writing is ambiguous, as to the consideration, it cannot be explained by parol. (Weed v. Clarke, 4 Sandf. S. C., 31.) Parol evidence cannot be given to explain an ambiguity or supply omissions or imperfections in the written agreement, when the contract is required to be in writing. (Cross v. Eglin, supra.) The contract relied upon by the plaintiff must stand or fall by itself. Construction and effect must be given to it, per se, and without the aid of extrinsic evidence. There were terms upon which the conveyance was to be made, or for the payment of the purchase money, which 4 were not stated in the memorandum; and, in order to a. specific performance of the agreement, these terms are tó be ascertained ; and, as they cannot be spelled out from the paper writing, it follows that the agreement is void, and cannot be enforced by the court. Looking at the paper alone, we are compelled to say, either that there was no perfect agreement made between the' parties, or they have failed to make a peifect memorandum of it; and either view is fatal to the plaintiff.' It is possible that the sale and conveyance of the property was “ upon the terms as specified; ” that is, upon some terms, or subject to some conditions, which do not appear; or, it mtiy be that the terms related to the payment of the purchase money, the consideration of the undertaking of Weeks, and which should have appeared by the memorandum. If it was certain that the terms only related to the payment of the $6,500, still, the terms not being stated, the contract must fail. The words cannot be rejected. They are a part of the memorandum made by the parties, and effect must be given to them; and giving effect to them leaves the contract ambiguous, and therefore void. The judgment must be affirmed, with costs.

All the judges concurring,

Judgment affirmed.


author: Wright, J.

text:
    The Buffalo City Bank v. Codd.
    The sale,.at a discount, by one banking association to another, for the purpose of effecting their redemption, of Canada bank bills under the denomination of five dollars, received by the former, not in payment of debts, but at a discount allowed by chapter 223 of 1853, was not a violation of chapter 295 of 1830. The bank could send them home for redemption itself, or employ another to do it. This is not passing, issuing, uttering or circulating them, within the sense of either of those statutes.
    Where the* selling bank takes in payment a time draft made by the purchasing bank, this is not a discount or loan by the seller, in violation of chapter 355 of 1839, section 3; and the issuing such draft is a violation of chapter 251 of 1850 only on the part of the purchaser. The seller may surrender the illegal draft, and recover, as upon an implied assumpsit, the value of the bills as measured by the discount agreed upon.
    Appeal from the Supreme Court. Upon the trial by the court at circuit, a jury having been waived, these facts appeared: The plaintiff was a banking association under the general banking law, located at* Buffalo, and the defendant an individual banker doing business at the same place, under the name of the Exchange Bank of Buffalo, and held himself out as authorized to receive and redeem Canada bank bills. Subsequently to the 31st March, 1853, the plaintiff made an agreement with the defendant, as an individual banker, that he should take' from the plaintiff, for the purpose of redemption, all the Canada bank bills the plaintiff should deliver to the defendant. He was to take such bills from the plaintiff at a discount of one-fourth of one per cent, and at the time of the delivery to the defendant of the Canada bills, pay the plaintiff for them in bills of the banks of the State of New York, or in a draft upon New York, at seventeen days, without grace or acceptance. Under said agreement, the plaintiff, on the 25th October, 1854, at the defendant’s office in the city of Buffalo, delivered to the defendant $1,953 in bills issued by hanks situate in Canada; and at the time took from the defendant, as an individual banker, under the name of the Exchange Bank of Buffalo, a draft on Duncan, Sherman & Co., bankers, New York, payable to the order of the plaintiff, for $1,953, seventeen days after the date thereof, without grace or acceptance. The plaintiff had received the said Canada bank bills in the ordinary course of business, part at a discount of one-fourth of one per cent, and part on deposit, at par, but did not receive them for debts due the plaintiff, at par. A portion of the bills were under the denomination of five dollars. The draft was not paid, but was duly protested, and notice given to the defendant. Another transaction of precisely the same character took place on the 1st November, 1854. The amount of bank notes then delivered to the defendant being $2,064.
    The defendant was not an agent of the banks for the re*demption of their bills; but he subsequently sent the bills to ■ Canada for payment or redemption.
    The plaintiff produced the two drafts, and delivered them to the court to be canceled.
    No further evidence being given, the defendant’s counsel asked the judge to decide, 1st. That the facts did not constitute a cause of action, and that the plaintiff w;as not entitled to recover thereon against the defendant. 2d. That the transaction was not a bailment of the said Canada bank bills. 3d. That it was an uttering, passing, circulating and receiving the said-Canada bills within this State. 4th. That it was a violation of chap. 295 of the Laws of 1830, which prohibits the circulation of foreign bank bills under the denomination of five dollars. . 5th. It was a violation of the 3d section of chap. 355 of the Laws of 1839, concerning foreign bank notes. 6th. It was a violation of chap. 223 of the Laws of 1853, amending the act concerning foreign bank notes. 7th. It was a violation of chap. 251 of the Laws of 1850. Each and every of which propositions the justice refused to hold and decide, and the' defendant’s counsel excepted.
    The court decided that, upon the facts, the plaintiff was entitled to recover, and ordered judgment for the plaintiff, for $4,801.24—the amount of the drafts with interest from die dates of their maturity respectively.

      On appeal, the Supreme Court, at general term in the eighth district, affirmed the judgment, and the defendant appealed to • this court.

      A. P. Laning, for the appellant.

      F. E. Cornwell, for the respondent.
   Wright, J.

The defendant seeks to avoid the recovery of the value of a parcel of Canada bank bills of $1,953, delivered to him -for the purposes of redemption, on the ground that the transaction was in violation of the statute of April 13, 1853, concerning “ foreign bank notes; ” also, of the statute of April 20, 1830, which declares it unlawful for any person to pass or circulate foreign bank bills under the denomination of five dollars; and of the third section of the statute of May 7, 1839, which declares it unlawful for any bank, &c., within this State, directly or indirectly, to lend or pay out for paper discounted or purchased by them, any bank bill, &c., which is not received at par by such bank, &c., for debts due to such bank, &c. Of course, if there has been an intentional violation of the provisions of either of these statutes by the plaintiff, or as a banking association, it has been guilty of any of the prohibited acts, the court will not aid the plaintiff, in enforcing payment for the bank notes delivered to and received by the defendant.

The act of 1853, declares it unlawful for any banking association or individual banker, to receive from any corporation, association or person, foreign bank bills at a greater rate of discount than is, or shall be, at the time fixed by law for the redemption of the bills of the banks of this State at their agencies. It is further declared unlawful for such banking association or banker, to issue, utter or circulate as money, within this State, any foreign bank bill or note, or to procure or receive any such bank bill or note with intent to issue, utter or circulate the same as money within this State. The act, however, especially provides that nothing contained therein shall be construed to prohibit any banking institution .from receiving and paying out such foreign bank bills as they shall receive at par, in the ordinary course of their business; or to prohibit such banking institution from receiving foreign notes from their dealers and customers, in the regular and usual ' course of their business, at a rate of discount not exceeding that which is, or shall be, at the time fixed by law for the redemption of the bills of the banks of this State at their agencies; or from obtaining from the corporations, associations or individuals, by which or by whom such foreign notes were made, the payment or redemption thereof. The prohibitions of the act, therefore, are against a banking association or banker, procuring or receiving foreign bank bills at a greater rate of discount than one-quarter of one per cent, the rate fixed by law for the redemption of the bills of the banks of this State at their agencies; and against issuing, uttering or circulating as money within this State, such foreign bank notes. Banking institutions are not prohibited from receiving and paying out foreign bank bills, if received by them at par, in the ordinary course of their business; nor from receiving foreign notes from their dealers and customers, in the regular and usual course of their business, at a rate of discount, not exceeding one quarter of one per cent, and obtaining payment dr redemption thereof from the banks issuing them. (Laws of 1853, chap. 223.) The foreign bills delivered to the defendant, were all received by the plaintiff in the ordinary course of business, part at a discount of one-fourth of one per cent, and part on deposit at par. It therefore violated no law in receiving the bills. The act expressly legalizes such dealing in foreign bank notes. The bills were as much lawful property in the plaintiff as the specie in its vaults. Being the owner of the bills, the law prohibited the'bank from issuing, uttering or circulating them as money within this State; but those received at par, in the ordinary course of business; they could pay out again; and those received from their dealers and customers, in the regular and usual course of business, at the discount of one-quarter of one per cent, they could lawfully send home for redemption. As to-the whole, those received at par, and those received at one fourth per cent discount, they could obtain payment or redemption thereof from the banks issuing them. The question is, whether the transaction amounted to an issuing, uttering or circulating the foreign notes as money, within this State, by the plaintiff; or whether the notes were delivered to the defendant for the purpose of effecting a redemption of them. I think that the facts established clearly sustain the latter theory. The defendant agreed with the plaintiff to take from the latter, for the purposes of redemption, all the Canada bank bills the plaintiff should deliver to him, at one-fourth of one per cent, and at the time of such delivery, pay for them in bills of the banks of the State of New York, or in a draft upon New York at seventeen days, without grace or acceptance. Under such agreement, the bills were delivered to the defendant: the defendant’s drafts on bankers in New York, at seventeen days, without grace or acceptance, taken for the sums; and the defendant sent the bills to Canada for payment or redemption.

• The agreement was not that the defendant should redeem the bills himself; but that it was contemplated by the parties that the redemption should be effected by sending the bills home, is manifest from the fact that the defendant was not an agent of the Canada banks for the redemption of their -bills, and that he did, in fact, send home those bills. The transaction made the defendant the plaintiff’s agent to effect the redemption by sending the bills home, for which the defendant received his pay in the one-fourth per cent discount allowed to him on the bills. It is conceded that the plaintiff itself might lawfully have returned the bills home for redemption, and if so, it could employ an agent to effect the object. In this view of the case, the acts and intentions of the parties were entirely legal, or at least there was no violation by the plaintiff, of the statute of 1853.

The transaction was not a violation by the plaintiff of the third section of the act of 1839, concerning foreign bank notes. By that section banking institutions within this state are prohibited from lending or paying out for paper discounted or purchased by them any bank bill or note not received at par by them for debts due to such institutions. (Laws of 1839, chap. 355, § 3.) The transaction cannot be tortured into a loan or purchase of the drafts of the defendant with the Canada bills. The bills had been lawfully received by the Buffalo City Bank, and it had a right to send them home for redemption, and to deliver them to a third person for that purpose, taking from him, at the time, an equivalent. It took a time draft which was not an equivalent. It was an illegal act.in the defendant to issue it, and it could not be collected from him. He still owed for the bills. The plaintiff was not at defendant’s counter purchasing paper. It was there with its packages of bills to be sent home for redemption. This is the aspect in which the transaction is to be viewed. When an innocent construction may be fairly given to the acts of a party, we are not to strain after a construction that shall impute a guilty violation of a statute.

By the act of April 20, 1830, it was declared unlawful for any person to pass, circulate or receive in payment within this state any foreign bank note under the denomination of five dollars.. (Laws of 1830, chap. 295.) This act has since been repealed, but it was in force at the time of the transaction between the parties. (Laws of 1855, chap. 93.) A portion of the bills in the packages delivered to the defendant were under the denomination of five dollars; and it is urged that the plaintiff’s act amounted to a violation of this statute. But I cannot perceive that the plaintiff is chargeable with doing either of the prohibited acts. It is expressly proved that the. bank did not receive the small bills in payment. Nor did it pass or circulate them within the meaning of the act. It simply upheld the law by getting these small bills out of circulation and out of the state, in the only legitimate way in which it could be done.

The act of 1850, chap, 251, prohibited banking associations and individual bankers from issuing time drafts. It is enough to say on this point that the defendant only violated this law Sacketts Harbor Bank v. Codd, 18 N. Y., 240.)

I cannot perceive, therefore, that the plaintiff has been guilty of violating any statute. In the Sacketts Harbor Bank v. Codd, it was held to be no offence for a bank or banker having lawfully received foreign notes, to even sell them to another bank or banker at any rate of discount, providing the transfer is not with a view to their circulation in this state. The prohibition is only upon the bank or banker buying at a greater than the legal discount. Accordingly when one bank drew a bill of exchange in favor of another bank in payment of foreign bank bills purchased by the latter at more than legal discount, for the purpose of sending them home for redemption, it was held that there was no defence to an action upon the bill. The contract not being void as against the seller, and the security not being of a prohibited character, there is nothing which the seller is required to disaffirm, and he may recover upon the instrument itself, and is not obliged to go upon an implied assumpsit for the value of the bills sold. In the present case which was an action against the same defendant, there was no violation of any statute by the plaintiff, and if the transaction be characterized as a sale of the foreign bills with the view of having them sent home for redemption and not to have them circulated in the state, the contract would not be void as against the seller. The penalty of issu ■ ing the time drafts is denounced upon the defendant alone.

' The plaintiff may sue in disaffirmance of the illegal part of the contract, and recover upon an implied assumpsit the value of the bills as measured by the lawful rate of discount agreed on, being the amount of the drafts canceled and given up at the trial.

The judgment of the Supreme Court should be affirmed.

All the judges concurring,

Judgment affirmed.