Fletcher . Updike.

The respondent was under no disability which can obviate the objection urged. Adams v. Curtis, 4 Lans., 164. Minier v. Minier, Id., 421. Wright v. Wright, 54 N. Y., 437. Dunham v. Sage, 52 id., 229.)

It may be questioned here whether the agreement or promise testified to by Mrs. Hirst, which is here the basis of the claim, should have application to any moneys received by the deceased prior to July 1, 1848. Mrs. Hirst speaks of one occasion only; and says this was the only one when any promise was made by the deceased of which she had any knowledge; and in substance makes that occasion when, or immediately after, Mr. Hidden made a payment. Mr. H. made three payments; one, and perhaps two, of which were made, as may be inferred, after July 1, 1848. Whether the conversation spoken of by Mrs. Hurst occurred on the occasion of the first, second or third payment does not appear. She says: "This promise was made after one of the payments was made." As before stated, a promise to pay after the money became his own absolute property would raise no legal obligation against him; and if made to apply to moneys received by him after July 1, 1848, then the claim accrued subsequent to the time when the Code took effect; hence could not be revived or continued by a past promise. But it is unnecessary to discuss this case with a view to determine just when the conversation occurred to which Mrs. Hirst testified; nor just how much came to the hands of the deceased subsequent to July 1, 1848. On a retrial, perhaps, the case may be made clear on these points. It is sufficient on this appeal that the claim allowed by the surrogate was to a very great extent, if not wholly, barred by the statute of limitations. A reversal of the decree must be ordered.

The case has been above considered with reference to the respondent's claim for moneys paid to her deceased VOL. LXVII.

24

Fletcher v. Updike.

husband upon the land contracts, which moneys were received by him during and prior to the year 1852. The surrogate also allowed for money received by the deceased on the Pierson note, paid in 1856. It is difficult to find any ground to support such allowance. The note belonged to the respondent at the time of her marriage, after which it came to the possession of her husband who, in 1856, received payment of it and delivered it up to the maker. There is no evidence that he held the note, or received the money other than as his own property.

In the absence of any agreement with his wife to restore or refund the money, or its equivalent, to her, there was no obligation resting on the husband to do so. The note and its avails belonged to the husband in virtue of his marital rights, unless his claim thereto was expressly waived; and there is no evidence in the case of such waiver. The promise testified to by Mrs. Hirst was made many years prior to the payment of the note to the husband. Besides, that promise had reference to the avails of the three land sales, if, indeed, it can be construed to have application to any other than to payments, or to a payment, made by Mr. Hidden. And if the money became the property of the husband when paid him on the note, a promise thereafter made to restore it to his wife would be void for want of consideration-hence would create no legal obligation against him. As the case stands before us on the evidence, the money received by the deceased in payment of the note was his own. Its reception by him did not make him debtor to his wife; and in this view a promise by him that he would pay her all he owed her, neither continued nor created a liability.

The decree appealed from must be reversed, and the proceedings must be remanded to the surrogate's court, for rehearing and retrial. The costs of this appeal should abide its final disposition in that court.

Rusk v. Soutter.

Decree appealed from reversed, and proceedings remitted, with costs of appeal to abide the result. (a)

[THIRD DEPARTMENT, GENERAL TERM at Albany, January, 1875. Bockes, Landon and Countryman, Justices.]

(a) S. C., briefly reported, 3 Hun, 350.

WILLIAM K. RUSK, bank comptroller of the state of Wisconsin, vs. WILLIAM K. SOUTTER and others, executors, &c.

A bond was given to the bank comptroller of the state of Wisconsin, by M. and the defendant's testator, for the security of the circulating notes of a bank. M., the owner of the bank, sold and transferred its entire stock to D., who, with a surety, executed and delivered to the same officer a new bond, for the same purpose. The old bond was given up, and the new one accepted in its place. At that time, an act of the legislature was in existence, authorizing this to be done; and the parties acted in good faith, and intended to comply with its provisions. Held, that the old bond was extinguished by what the law denominates an accord and satisfaction made by a third party; and that an action would not lie to enforce it.

The obligors in the substituted bond, being sued upon it, failed to resist a recovery on the ground that they had executed it without authority of law; and judgment by confession was entered against them. Held, that by such omission they had waived their right of objecting that the law under which such bond was executed was unauthorized by the constitution of the state. And that the obligation mentioned in it became as effectual, against the obligors, as though the bond had been given under a valid law.

That a complete legal liability was created, and that was sufficient to render the new bond a good accord and satisfaction.

Held, also, that the bond which it was designed the comptroller should have, as the consideration of the exchange, having been sustained by a judgment of a court in Wisconsin, the plaintiff could not now stand upon the averment that such bond was unauthorized because the law under which it was made was not warranted by the constitution, without its ratification by a vote of the people.

A

PPEAL from an order made on the trial, at a circuit, refusing to dismiss the complaint, and directing a verdict for the plaintiff.

Rusk v. Soutter.

The action was brought by the plaintiff as bank comptroller of the state of Wisconsin, to enforce a bond executed to him by M. and the defendants' testator, to secure the payment of the circulating notes of a bank in that state.

Mr. Wakeman, for the appellants.

D. M. Porter, for the respondents.

DANIELS, J. It appears from the case that Marston, the former owner of the bank for the security of whose circulating notes the bond in suit was given to the comptroller, sold and transferred its entire stock to Daniel, who procured to be executed and delivered to the same officer a new bond for the same purpose. The preceding bond was delivered up, and the new one accepted in its place. At that time an act, apparently valid, was in existence authorizing that to be done; and the parties evidently intended to comply, and supposed they had fully complied, with its provisions. No informality in the proceeding has been relied upon to defeat the effect of the transaction. And no bad faith appears to have intervened through which it can properly be impeached. On the contrary, the transaction seems to have been fairly entered into, by which the stock of the bank was transferred, and the puchaser, with the assent of the comptroller of the state of Wisconsin, who was the officer having the supervision and control of the banking business of the state, substituted a new bond as security for the notes expected to be circulated in the course of its business. Upon these facts, the old bond was extinguished by what the law denominates an accord and satisfaction made by a third party. The rule upon this subject is that, "if the accord and satisfaction be made by a third party and is accepted as satisfaction, it would seem to be sufficient, if the actual

Rusk v. Soutter.

debtor consent to look upon it as such." (2 Pars. on Cont., 688. Booth v. Smith, 3 Wend., 66, and cases cited. Frisbie v. Larned, 21 id., 450. Babcock v. Dill, 43 Barb., 577. Good v. Cheesman, 2 Barn. & Ad., 329. Tilton v. Alcott, 16 Barb., 598, 599, 600.

The statute, however, which in terms conferred upon the comptroller the power to make this change in the bonds, was afterwards held by the Supreme Court of Wisconsin to be unconstitutional, because of the failure to submit it to a vote of the people. And that circumstance is relied upon by the plaintiff as sustaining the position that there was no lawful authority allowing the old bond to be surrendered and the new one to be taken in its place. It would undoubtedly be attended with that result, if that were all that there was of the case. For then the parties who executed the new bond would not have become liable for the performance of its condition. But it was not; for judgment by confession was entered against them upon the bond. They failed to resist a recovery on the ground that they had executed it without the authority of the law. By that omission they waived their right, as they had the power to do, of objecting that the law under which their bond was executed, delivered and received, was unauthorized under the constitution of the state. And the obligation mentioned in it became as effectual against them as though it had been given under a law against which no objection whatever could be made. (Phyfe v. Eimer, 45 N. Y., 102, and cases cited.) In that way as full effect was secured for the substituted obligation as the parties to it designed it should have. And that extinguished, as it was intended to, the bond surrendered for it. A complete legal liability was, under the circumstances, created, and that was sufficient, under the authorities, to render the new bond a good accord and satisfaction. The judgment concluded the parties executing it from objecting afterwards that they were not