The opinion of the court was delivered by
Bennett, J.
Though this note was payable in sap buckets or leather, at the option of the maker, yet a day certain was fixed, when it was to become payable. By a fair construction of the note, whether paid in buckets, or in leather, it must have been paid by the middle of February next following the date of the note. When a note is payable in a specific article on demand, a special demand is necessary before suit is brought; but when a day certain is fixed for payment, a special demand has never been held necessary.
The defendant also objects to the charge of the court. If the *108leather tendered was not sealed, either at the time when it was turned out, or on the day when the note was payable, or if, when turned out, the leather was sealed with the letter B, the jury were told the tender could not avail the defendant. Is there any objection to this ? By the act of 1797, if any person sold, or offered for sale, neat’s leather, or calf-skin, or tanned horse’s or colt’s hides, until it was first sealed with the letter G, or with the letter B, he forfeited double the value of such leather, or hides, one half to the prosecutor and the other half to the treasurer of the town, in which the sale, or exposure for sale, happened. In 1811 the law was extended to tanners and persons engaged in the business of tanning, who should sell or expose to sale any sole-leather, until weighed and stamped. Slade’s Comp. 468, 471. As this note was not only given, but payable, before the Revised Statutes went into operation, the rights of the parties are to be determined under the old law. It is said by the defendant’s counsel, that, if there had been any tanned sheep skins, goat skins, dog skins, deer skins, or hog skins, which come under the denomination of leather, and which are not required to be stamped, among the leather turned out, the jury, under the charge, must have still returned a verdict for the plaintiff. But we are not to understand that such was the fact. The case shows that a quantity of leather of different descriptions was turned out by the defendant at his shop 5 and it is to be taken that this was all such leather, as the defendant was bound by the law to cause to be stamped, before, he offered' it for sale. It might well have been, and I have n.o doubt, from the manner in which the case was made up, it was so, in point of fact..
The whole question raised on the charge is, as to what should be the effect, either of the want of a stamp upon the leather, or if stamped bad. In all other respects the charge was satisfactory. Every proper intendment is to be made to sustain a verdict; and it is the duty of the excepting party to show affirmatively that error intervened on the trial. If the leather was not sealed, it was the object of the defendant to transfer the ownership of the leather from himself to the plaintiff, in payment of his note, against the express prohibition of the statute. Will the court, in such case, lend the party its aid to carry such intention into effect ? The rule, as laid *109down by Chitty, is, that a contract is void, if prohibited by a statute, though the statute only inflicts a penalty ; because such a penalty implies a prohibition. Chitty on Contracts, (last edit.) 694; Bartlett v. Vinor, Carth. 252. In Langton v. Hughes, 1 M. & S. 596, Lord Ellenborough says, “ it may be taken as a received rule of law, that what is done in contravention of the provisions of an act of parliament cannot be made the subject matter of an action.” De Begnis v. Armistead, 10 Bingh. 107; Ferguson v. Norman, 5 Bingh. N. C. 86; Cope v. Rowlands, 2 Mees. & Welsb. 149; Wheeler v. Russell, 17 Mass. 258; Mitchell v. Smith, 1 Binn. 118.
If, then, the defendant could not have recovered in an action for leather sold, in contravention of the statute, it follows, that the court should not give effect to a tender, the object of which was to pass the title to the leather from the one to the other, in payment of a precedent debt.
The alternative of the charge of the court, that, if the jury found the leather sealed with the letter B, it could not avail the defendant, cannot admit of a question. If the defendant elected to pay his note in leather, the plaintiff had the right to require that it should be of a merchantable quality. Such must be taken to have been the intention of the parties.. This is well settled. If, then, the leather had been condemned by the leather-sealer, and stamped as bad, this would furnish evidence that the leather was not of such a quality as the defendant was bound to turn out, and could not operate to discharge the note.
The judgment of the county court is affirmed.