2. Prior to the act of May 14, 1840,
prohibiting time notes, &c., bank-
ing associations organized under
the general law of 1838 could issue
their obligations, payable at a fu-
ture day, with or without seal, to
secure a debt for moneys loaned,
provided such obligations were not
intended or calculated to circulate
as money. Such obligations were
not prohibited by any statute of
this state, and the right to issue
them was incidental to the various
banking powers expressly granted
to such associations.
id
3. The restraining laws of this state
(1 R. S., 712), so far as they pro-
hibit persons and corporations from
issuing notes, &c., upon loan or for
circulation as money, without special
authority of law, are still in force;
but special authority of law to issue
such notes is given to banking as-
sociations, by the general act of
1838, upon the conditions, how-
ever, of securing and having them
countersigned as therein specified.
Without performing those condi-
tions, circulating notes or obliga-
tions of any kind, intended or cal-
culated to circulate as money, can-
not be issued. Id.,
70, 71
4. But there is nothing in the restrain-
ing laws, or the general act of 1838,
to interfere with the incidental
powers of corporations, whether
banking or not, or of banking asso-
ciations, to create and issue the
evidence of a debt lawfully con-
tracted, provided the obligation or
assurance is not designed for circu-
lation as currency or adapted to
that purpose. Id.,
68-72
5. The North American Trust and
Banking Company, an institution
organized under the general act
aforesaid, in April and May, 1840,
issued instruments called bonds,
first for $1,000,000, and then for
$500,000, in sums of £225 or $1000
each; the $1,000,000 being payable
in five and the $500,000 in seven
years, in sterling money. These
obligations were intended for sale
in England, in order to raise money
for the use of the company. The
interest was payable semi-annually
in London, no place for the pay-
ment of the principal being speci-
fied. The corporate seal was im-
pressed upon each bond, but with
out the use of wax or other tena
cious substance; Held, that such
instruments were not within the pro-
hibition of the restraining laws, and
were valid securities for the moneys
loaned thereon, even if they were re-
garded as unsealed obligations, and,
therefore, in legal effect, mere pro-
missory notes. Further, that bank-
ing associations are not subject to
the provisions of the safety fund
act (Laws of 1829, ch. 94), and,
therefore, not affected by section
thirty-five of that act, which pro-
hibits the issuing of "bills and
notes," unless payable on demand
and without interest. Id., 73, 74,
155, 156, 171, 172, 220
6. Banking associations, formed un-
der the general law, have a right
to draw bills of exchange, either
foreign or domestic, as incidental
to the power to buy and sell bills;
and previous to June 3, 1840, such
bills might be drawn, payable upon
time as well as at sight, or on de-
mand. Id., 71-83, 172, 222, 260
7. Prior to June 3, 1840, when the
statute of May 14, 1840, took effect,
prohibiting banks from issuing
time bills and notes, the said North
American Trust and Banking Com-
pany, being indebted in a large sum
to Palmers & Co., bankers in Lon-
don, and desiring further large ad-
vances, transmitted to that house
the aforesaid million and half mil-
lion issues, of its bonds, under a
pledge for such debt and the ex-
pected advances, with authority to
sell the same, according to the ori-
ginal purpose for which they and
the aforesaid trusts were created,
and to apply the proceeds to the
payment of such debt and advan-
ces. The Palmers & Co. made the
further advances, and they also,
after receiving the bonds, or being
advised of their shipment to them,
gave up other securitics equal to
the amount of their preexisting
debt; Held, that the bonds so
called, having been executed and
thus pledged to the Palmers & Co.,
before June 3, 1840, were not issued
in violation of said statute, even if
regarded as unsealed instruments,
and so, in legal effect, promissory
1. In an action to recover from a
stakeholder money deposited with
him, by the plaintiff, upon a bet on
a cock-fight, the evidence was that
within fifteen minutes after the ter-
mination of the fight, the plaintiff
told the defendant to "give up the
money to Courtney (the other party
to the wager); it was Courtney's
money;" Held, error in the judge to
submit to the jury, upon this evi-
dence, the question whether the
plaintiff directed the money to be
paid over as money won upon the
event of the cock-fight, or whether,
without regard to any wager, and
as a voluntary gift or gratuity. He
should have instructed them, as a
matter of law, to find a verdict for
the plaintiff. Storey v. Brennan,
3. The endorsement of a promissory
note imports a guaranty, by the
endorser, that the makers were
competent to contract, in the cha-
racter in which, by the terms of the
paper, they purported to contract.
Erwin v. Downs,
575
4. Presentment to one of two persons
who, by the signature to a promis-
sory note, purport to constitute a
partnership firm, is sufficient to
charge the endorser, though such
person and her putative partner
are married women.
id
5. Knowledge by one who became the
holder of such note before matu-
rity, and for a valuable considera-
tion, that the makers were married
women, does not deprive him of the
right to rely upon the implied gua-
ranty of the endorser, that the
makers were competent to contract
as partners, nor of the character of
a bona fide holder.
id
See BANKS AND BANKING ASSOCIA-
TIONS.
See BILLS OF EXCHANGE AND PROMIS
SORY NOTES, 5.
CORPORATION, 6, 7, 8.
NOTICE.
BILLS OF EXCHANGE AND PRO-
MISSORY NOTES.
1. An order drawn by the president
of a railroad corporation upon its
treasurer, directing the latter to
pay to A. B., or order, a specified
sum, stated as being the amount
due A. B., for work done by him
as contractor, in building a section
of the corporation's railroad, is in
effect a promissory note, and may
be declared on as such. Fairchild
v. The Ogdensburgh, Clayton and
Rome Railroad Company, 337
2. It is not a bill of exchange, because
it lacks the essential element of two
parties, as drawer and drawee. Pre-
sentment and demand of payment
are therefore unnecessary.
See NEGLIGENCE.
RAILROADS.
CASES OVERRULED, DOUBTED,
COMMENTED UPON AND EX-
PLAINED.
1. Barney v. Griffin (2 Comst., 365 ),
reviewed, Curtis v. Leavitt, 176
2. Barry v. The Merchants' Exchange
Company (1 Sandf. Ch. R., 280),
and King v. Same (1 Seld., 547),
commented upon by Comstock. J.,
62, Paige, J., 220, Selden, J., 262,
268.
id
See APPEALS, 5, 6.
EVIDENCE, 6.
LANDLORD AND TENANT, 8.
PLEADING.
Sce HUSBAND AND WIFE, 1, 2.
See CONTRACT, 9.
JUDGMENT AND EXECUTION, 3.
2. Two banks in the city of Philadel-
phia agreed to loan to the North
American Trust and Banking Com-
pany (a New-York banking associa-
tion) $250,000. The negotiation
was conducted partly in Philadel-
phia and partly in New-York, and
the money (less than the nominal
amount of the loan) was actually
advanced in New-York. The money
was to be repaid at one of the banks
in Philadelphia, with interest at the
legal rate in Pennsylvania; Held,
that this was a Pennsylvania con-
tract, and, therefore, if usurious,
that by the law of that state it
was inoperative only as to the
excess over the legal interest. Id.,
91, 230, 296
1. The North American Trust and
Banking Company, an institution
organized under the general act (ch.
260 of 1838), in April and May, 1840,
issued instruments called bonds,
first for $1,000,000 and then for
$500,000, in sums of £225 or $1000
each;-the $1,000,000 being paya-
ble in five and the $500,000 in
seven years, in sterling money.
These obligations were intended for
sale in England, in order to raise
money for the uses of the company.
The interest was payable semi-an-
nually in London, no place for the
payment of the principal being
specified. The corporate seal was
impressed upon each bond, but
without the use of wax or other
tenacious substance; Held, 1. That
the bonds were English contracts;
2. That they were sealed instru-
ments by the English law, although
the corporate seal was impressed
directly upon the paper, without
wax, wafer or other tenacious sub-
stance; 3. That their payment was
not secured upon lands, but upon
the bonds and mortgages assigned
by the aforesaid million trust deed,
which were New-York contracts,
and, as such, by the law of this
state, chattel interests merely; 4.
And, therefore, as the result of
these propositions, that said four
hundred and ninety-nine bonds
came within the statute of 2d and
3d Victoria, which exempted them
from the penalties of usury. Cur-
tis V.
Leavitt,
7. The act to establish a metropolitan
police district, chapter five hun-
dred and sixty-nine, of 1857,
unites the counties of New-York,
Kings, Richmond and Westchester
in such district, and provides for
the appointment of five commis-
sioners, by the governor, with the
advice and consent of the senate,
who, with the mayors of New-York
and Brooklyn, form a board of po-
lice for the district. The board is
invested with all the powers of the
former board of commissioners of
the city of New-York, which con-
sisted of the mayor, recorder and
city judge, who were elected by
the people of that city, and all the
powers of the mayors of New-
York and Brooklyn, as the heads
of the police departments of their
respective cities. The board ap-
points all its subordinate officers
ard policemen, who are to do duty
in any part of the district, without
regard to residence or county lines;
Held, that the act is constitutional,
and that it is no objection that it
divests the local constituencies of
the franchise of electing their po-
lice officers.
id
1. It was part of an agreement between
certain Philadelphia Banks, pre
posing to make a loan of money to
the North American Trust and
Banking Company, that the latter
should give to the lending banks its
negotiable certificates of deposit for
the amount of the loan, each one
for a semi-monthly installment.
Twelve certificates were given accor-
dingly, amounting in all to $250,000,
the first payable in seven, the last
in twelve months from their date,
with six per cent interest. Con-
ceding these certificates to be, in
legal effect, promissory notes, and
as such expressly prohibited under
penalties by the act of May 14, 1840,
yet Held that the Philadelphia banks
were not in pari delicto in the offence
of issuing such notes, the prohibi-
tion being imposed only on the
corporation which issued them,
and the banks which received them,
being foreign corporations, not even
having notice of the prohibiting
statute. Curtis v. Leavitt, 94, 296
2. Held, further, therefore, that the
lenders were entitled to recover the
money lent, it being considered
that the illegality and alleged void-
ness of the certificates did not
impair the guilty party's obligation
to repay the money.
3. That the remedy of the lenders
would lie directly on the contract
of loan. Although in such a case
the innocent party may disaffirm,
and go upon an implied assumpsit
for the goods sold or the money
advanced, as held in the case of
Tracy v. Talmage ( 4 Kern., 162), he
is not bound to do so, and there-
fore is not compelled to lese his
collateral securities. Id., 95, 96
|