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the intestate, for the sale of it for 1700 dollars. Nickels paid in part by other property of the value of 1200 dollars, as estimated by the parties, and as found by the jury, and the remaining 500 dollars were paid by Dunlap, the testator; and thereupon Abbot conveyed the said tavern estate to the testator by an absolute deed in fee. From the report it appears that the 500 dollars were paid to Abbot, and the deed made to the testator, at the request of Nickels; and though there is no evidence that the testator was conusant of the arrangements between Abbot and Nickels in the earlier stages of them, yet it does appear that in their completion he became fully acquainted and connected with them, and for the purpose of effectuating the objects of all concerned, he accepted the deed from Abbot, under the circumstances disclosed in the case; declaring afterwards to the assessors of the town, on a question of taxation, that he was interested only to the amount of 500 dollars in the estate, on payment of which sum he should convey it to Nickels. Thus it is evident that all were assenting to the several parts of the transaction; and it is immaterial, as to this cause, at what time the testator became an assenting party to it, because it is a familiar principle that subsequent assent is equivalent to previous request; and the continued possession and enjoyment of the estate, by the testator and his representatives, is a continuing assent to avail themselves of the advantages resulting to them from the payment of the 1200 dollars by Nickels to Abbot. In this view of the facts we do not perceive any objection to the maintenance of this action on the ground of their having been no request on the part of the testator, or knowledge of the contract with Abbot for the estate, prior to his own connexion with it.

"The next inquiry is whether the statute of frauds is a bar to the action. The plaintiff does not expect nor profess to maintain it on the parol promise of the testator to convey the estate to Nickels, on his paying the 500 dollars and interest; he has no such count in his declaration; but he contends that he has a right to recover the 1200 dollars, being the value of the tavern estate, as money paid at the request, and for the use, of the testator. In this view, it is contended that the statute of frauds has no connexion with the subject; and that it cannot furnish a bar to such claim, any more than it would be a bar against the recovery of a sum of money lent to A, to assist him in purchasing a farm of B, and which A appropriated to that purpose. Viewing the transaction as ultimately assented to by all three of the parties, the cause has been presented to us, and the facts marshalled, in the following manner. The testator is considered as having agreed to become the purchaser of the estate ; as having himself paid 500 dollars, in part of the price; as having received from Nickels, beneficially, the remaining 1200 dollars ; and then taking the deed from Abbot to himself; Nickels intending and expecting to receive the full ultimate advantage of the above sum, and the testator knowing of this intention and expectation, and frankly agreeing to the arrangement on which they were founded. It is impossible not to see that the testator intended that the 1200 dollars should in some way or other be accounted for to Nickels; and if in such a solemn transaction as the conveyance of real estate, it is the duty of the court to give such a construction to a deed, as that, if it cannot operate in the way it was intended, it may operate as a different species of conveyance, so as to effectuate the general intention of the grantor, there can be no sound reason why the general intent of all the parties to the transaction we are considering, should not be carried into effect by the construction we have given to it; in the former case ut res magis valeat quam pereat; in the latter, to do justice, by compelling the representatives of the testator to account for the advantages they have received, and continue to enjoy, by means of the arrangement which was made for his benefit, and sanctioned by his assent, in receiving the conveyance to himself. It is no new principle that a man may be held accountable in damages, as on an implied contract, in many cases, in which he never imagined that he had made any species of contract; as in that class of cases where a man may waive the tort as in Hambly v. Trott, Coup. 375, and seek his remedy for damages occasioned by the wrong, in an action of assumpsit. Thus for instance, where a trespasser has converted the property taken into cash, the injured party may sue the trespasser in an action of trespass, or waive the tort, and treat him as a debtor, having the plaintiff's money in his hands.

"Let us suppose the fact to have been that, pending the negotiation for the purchase of the tavern estate, the testator had offered to advance 500 dollars to Abbot in part payment, and that Nickels had assented to it, and thereupon the conveyance had been to him. Could the statute of frauds be a bar to the testator's recovery of the 500 dollars, as money paid to Abbot for the use of Nickels? How is the case altered, except as to the amount advanced, because Nickels advanced 1200 dollars to Abbot by the testator's consent, and thereupon the conveyance was made to the testator? Was not this money advanced, and has it not gone, to the exclusive use of the testator, by his consent? This consent may be fairly implied from the reported facts; indeed they will not admit of any other implication; and if his assent is implied, the law raises a promise of payment. In an equitable and pecuniary point of view, such was the essence of the whole transaction; and the refusal of the defendants to procure a conveyance to the representative of Nickels, when the tender was made, is in affirmance of the idea.

On these facts, thus presented, we do not perceive any legal principle which prevents our considering the 1200 dollars, as paid by Nickels, by the consent of the testator, clearly implied and for his use and benefit. And why should not the plaintiff recover it? Equity and justice would be unable to assign any satisfactory reason, while the heirs or devisees of the testator claim to hold, and do hold the estate, under existing circumstances. When a contract is made for the purchase of an estate, and a part of the price is deposited, and upon examination of the abstract of the title, it is found defective, and no deed can be given to convey a good title, the deposit may be recovered back. So if a man verbally agrees for an estate and pays the price, and then the owner refuses to make a deed, the money paid may be recovered back, the bargain being disaffirmed. In such cases as these, the statute of frauds is no bar. i Bos. & Pul. 306. 3 Stark. 1614, 1615, and cases there cited. The action is not attempted to be maintained upon the contract for sale, to recover damages for not conveying; but to reclaim the money paid, which is detained without any consideration given for it. These are plain principles. The objection as to the tender, that no deed was offered to the executors for signature, cannot now be sustained. If a good one, it was waived by their conduct in assigning other reasons at the time. The tender was rightfully made to the executors; and if they had not the power to convey, they should have procured a conveyance from those who were authorized to do it.

'On the whole we are all of opinion that the action is maintainable.' pp. 268—271.

The decision in Green v. Morse, p. 291, is of some interest in Massachusetts. A statute of Maine, of 1822, ch. 209, similar to one in Massachusetts, provides, that no person shall be arrested or committed to prison on any execution issued upon any judgment founded on contract, unless the debt or damage in the judginent shall exceed five dollars. The decision was, that no person could be arrested or held to bail on mesne process for a debt less than five dollars. By a great abuse of the law, it has been customary in some places in Massachusetts to hold debtors to bail for debts less than five dollars. We hope that a koowledge of this decision will tend to correct this abuse.

In the case of Chandler v. Morton, the court decided that a party to a negotiable instrument cannot be a witness to prove it void in its creation by reason of usury, even where the plaintiff is the usurer. This decision is, no doubt, supported by American cases, but on principle, we think it is very questionable.

The history of the rule, which now seems to be established in some of the American States, that a party to a negotiable instrument, cannot be a witness to impeach its validity, is somewhat curious. It is well known that this rule was first introduced in England, in 1786, in the case of Walton v. Shelly, 1 T. R. 296. In 1798, the rule, which, notwithstanding the case of Walton v. Shelly, had never been firmly established in England, was abandoned.(a) And it has ever since been held in that country, that a party to a negotiable instrument, if not interested, may be a witness to impeach its validity. In most of the states, however, which have decisions on the subject, the rule adopted in Walton v. Shelly has been adhered to. In Connecticut, the rule has been thrown off; and if we may judge from some expressions used in the Supreme Court of New York, it is questionable, although it has been so long and so firmly established, whether it will be long permitted to maintain its ground in that state.

Some exceptions to the rule have been made by decisions in some of the states. The exceptions are not all of them established in all the states in which the rule is admitted. One of these is, that where the plaintiff is himself a party to the illegal concoction of the note, a party to the note, if not interested, may prove that it was void in its original formation.(6) But it must be admitted that the courts of New York and Massachusetts have not always recognised this exception.(c)

The following are the arguments in favor of the rule as stated by Parsons, Ch. J. in the case of Churchill v. Suter.

'It need not be remarked, that when the consideration of a negotiable security is against law, yet on that account the security cannot, by the common law, be avoided in the hands of a bona fide purchaser not privy to the illegality of the consideration. But by statute usurious and gaming notes are made void, when holden by an innocent purchaser for valuable consideration. We therefore consider the question as applying generally to notes of this last description; because notes of the former kind, by being negotiated to any person ignorant, or who cannot be proved cognizant of the original transaction, exclude the application of the rule in question.

“The circulation of negotiable paper is extremely useful to

(a) See Jordaine v. Lashbrooke, 7 T. R. 601. (b) See Powell v. Waters, 17 Johns. R. 176; Myers v. Palmer, 18 Johns.

Tuthill v. Davis, 20 Johns. R. 287; Fox v. Whitney, 16 Mass. R. 118. (c) See Mann ann, 14 Johns. R. 270; Manning v. Wheatland, 10 Mass. R. 502; Churchill v. Suter, 4 Mass. R. 156.

R. 167;

trade, as it multiplies commercial credit, and the notes pass from man to man as cash. Any rule of law, tending unnecessarily to repress this circulation, is therefore against public policy. When a negotiable note is offered to a merchant or farmer, in payment for his merchandize or produce, all he can look to are the names of the parties to the note, and all his inquiry is as to their solidity. Whether there be any secret canker, which will destroy the note, is unknown to him; and the parties are interested to conceal it, until he has given the note his confidence. And he may fairly presume that all, who have given the note a currency by their signatures, are honest men, and have not combined to defraud him. If therefore the parties to the usury or the gambling, having received the fruits of their illegal contract, and having given a circulation to the note, can be admitted by their testimony to destroy it; beside the injury to a fair purchaser, the negotiation of paper will be greatly checked, to the no small injury of the public.

But further considerations arise, if we regard the immoral tendency of admitting these parties as witnesses. As the law abhors fraud, its rules of proceeding are framed so as to prevent fraud, by detecting and punishing it. No man shall be admitted to allege his own turpitude, when the allegation will tend to encourage or support fraud or illegality. Thus in civil causes, the plaintiff shall not be permitted to shew any illegality in his own conduct, to maintain his action: neither shall the defendant, in his defence, allege his own wrong: In civil or criminal suits, persons may be witnesses against their accomplices, because their testimony tends to suppress fraud and injustice : and for the same reason witnesses, whether subscribing witnesses or others, may disclose a fraud.

“But in the present case, to admit the parties to the illegal contract as witnesses, would not tend to suppress fraud, but to encourage it, by enabling the parties to it to enjoy all the beneficial fruits of it, and to throw the mischievous consequences on an innocent endorsee. For any man, by contrivance with another, may take up money of him at usurious interest, and give him a negotiable note for security. The promisee may sell it for a valuable consideration, and when the endorsee attempts to recover his money, the promiser and endorser may, (at least by releases) be witnesses for each other, and defeat the purchaser of bis remedy, and quietly enjoy the money he has paid for the note.

"We admit, as a general rule, that infamy and interest are the tests of the competency of witnesses. But to this rule exceptions are allowed. To preserve domestic harmony, and to secure to husband and wife an unrestrained confidence, neither is, in any

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VOL. IV.NO. VII.

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