8 Wend. 403 | N.Y. Sup. Ct. | 1832
The first question which arises in this case is as to the time when the bond, upon which the action is founded, was delivered and accepted. The evidence adduced by the defendants, I am inclined to think, was not sufficient to countervail the legal presumption of the delivery of the bond on the day of its date. The practice of the canal commissioners, requiring a certificate from some judge of the court of common pleas of the sufficiency of the sureties in these bonds before they accepted them, was a mere voluntary regulation on their part, not prescribed by law, adopted as a matter of precaution and convenience, but which they might dispense with in any given case without a violation of their official duty. It would be giving an undue influence to such a regulation to permit it to decide the time of the delivery of the bond, whenever its date varies from the date of the certificate. Mr. Seymour in this case has no knowledge or recollection upon the subject; he says so expressly. If we were to hold, therefore, that the bond did not take effect until the date of Judge Samson’s certificate, it would be solely upon the ground that the commissioners must be presumed not to have accepted the bond until such certificate was endorsed upon it, because it was their general practice to require such certificate ; but a practice entirely voluntary, not required by law, and which might be disregarded without any prejudice to the public interest. It will be recollected also that this evidence is drawn from the declarations or admissions of the plaintiffs on the record, and that those declarations may not have been accompanied with the explanations and qualifications which might have been given, if it had been competent to produce them as witnesses in the cause. There may have been a delivery and a conditional acceptance, to become absolute when ihe certificate was obtained, which, by relation, would .make
The next inquiry is as to the proper application of the sum of f12,571,54, which was paid by Van Slyck, and credited on the books of the comptroller on the 22d day of July, 1825. This has been applied as a credit towards the tolls received by Van Slyck in the month of May, 1825, before the bond in question was given. The sureties contend that it should be applied towards the tolls received after they became sureties, especially as the payment was made, as they allege, out of monies collected for tolls which accrued after they became sureties, and that the state had no right to apply the payment to the extinguishment of a defalcation of Van Slyck existing prior to the execution of the bond in question, and while he had other sureties. It was admitted that Van Slyck held the office of collector during the year preceding the execution of the bond, and had other sureties that year; and that the bond executed by the defendants expired on the 14th of April, 1826, when Van Slyck gave new bail. The defendants were his sureties from the 1st of June, 1825, the date of the bond, to the 14th of April, 1826. The former comptroller testified that the accounts of Van Slyck were kept with him, from the commencement to the termination of his office; that there was no account opened or kept with the sureties of Van Slyck, and that he did not know, when the payment of 12,571,^%-was made, that a new bond had been executed and the sureties changed; that the sureties of Van Slyck made no application of, and gave no notice to the witness in relation to the payments made by Van Slyck; and that as soon as drafts or certificates were received from him, they were passed to his credit in the books of the office; that no directions were given by Van Slyck, at the time of the payment of this sum, as to its application; and the witness made no other application, except to credit it to his account generally at the time when it was received; that at that time there were no charges in his office against Van Slyck for tolls, except for the months of March, April and May, the returns for the month of June not
The general doctrine in relation to the appropriation of payments, where there are several accounts or transactions between the parties, is too well settled to require discussion. The debtor has a right to direct to which account the payment shall be applied. If he gives no direction, the creditor may apply it to which he pleases. If no application is made by either party, the law will appropriate it according to the justice and equity of the case; and as a general rule, in the
But independently of the presumed intention of Van Slyck, I am inclined to think that the state must be considered as having appropriated this payment, at the time it was made, to the May tolls. Those tolls were the only charge, of any importance, at that time existing on the books of the comptroller against Van Slyck, and the passing of this payment to his general credit must certainly, prima facie, be an application of it to such previous indebtedness. Judge Story, in the United States v. Kirkpatrick, 9 Wheat. 737, 8, says, in cases of run
The next inquiry is whether the defendants were entitled to have the payments made by Van Slyck on the 21st of April and the 5th of June, 1826, after the bond had expired, applied to the payment of tolls received by him during the existence of the bond in, question. It will be recollected that the bond expired on the 13th day of April, 1826. On the 21st of April, a payment of $891,07 was made, and on the 5th June, another payment of $9417,89. Neither of these payments'.have been credited to Van Slyck in the verdict of the jury. The case does not disclose the particular time or manner in which they were made; they must be considered, therefore, as having been made in what is shown to have been the ordinary course of the collector, and to have been passed to, his general credit, when made, on the books of the comptroller. It will also be recollected 'that it appears from the testimony of the comptroller, that although the collectors were required to make their returns monthly, immediately after the end of the month, yet that they were not generally completed and received at the comptroller’s office until the latter end of the succeeding month; and the dates of the affidavits of Van Slyck attached to his monthly returns, deposing to their accuracy, show the correctness of this statement. Thus the affidavit subjoined to the return for May, 1825, was sworn to at Rochester; on the 20th June; that to the return for June, the 28th of July; for July, the 29th of August; for August, the 11thof September; for September, the 2d of November: for October and November, not until the 21st of February,
In relation to the $9417,89, paid on the 5th of June, the case is not so clear. According to Van Slyck’s return, the tolls received in the month of April were $9007, 85. A part of this payment, therefore, may have been the proceeds of tolls received after the 13th of April; how much was in fact received after that date, the evidence does not disclose. The whole could not have been, because it exceed $410, the receipts of the whole of that month; and the uniform and established course of business between the collector and the comptroller, repels the supposition that any part of that payment was designed or understood by the parties to be applicable to the tolls of the month of May, or to have been the proceeds of that month. We have not here as in the case of the payments of the 22d of July and the 23d of August, 1825, the important and controlling circumstance of a precise coincidence between the payment and the return of any preceding month, to aid in ascertaining the intention of the parties as to its application. We have nothing but the fact, that when the payment was made, there was a large balance against Van Slyck on the books of the comptroller, independently, of, and anteri-
The" omission of the comptroller to give notice to the endorsers of the non-payment of the $1000 note, left with him as collateral security by Van Slyck, did not, I apprehend, in Judgment of law, render the plaintiffs or the state chargeable with it. The note was not negotiable; it was made by Elisha Ely, payable to Harvey Ely and P. A. Van Slyck, three months after date—not to their order or bearer—and by them endorsed in blank." It is not essential to the validity of a bill of exchange, or promissory note, as an instrument under the statute or according to the custom of merchants, that it should be negotiable, 6 T. R. 123; Rex v. Box, 6 Taunt. 325; 1 Com. L. R. 401, S. C.; Chitty on Bills, 86; Downing v. Backenstors, 3 Caines, 137 ; 9 Johns. R. 217 ; although at one period it was seriously questioned. The endorsement and transfer of such an instrument is good, so as to make the endorsers liable to the endorsee, although it will not give the endorsee a right of action in his own name against the maker. Hill v. Lewis, 1 Salk. 132. Chitty on Bills, chap. 4, page 142. 1 Dall. 194. 2 Dall. 249. The endorsement in such a case is equivalent to the making of a new note; it is a guaranty that the note will be -paid—it is a direct and positive undertaking, on the part of the endorser, to pay the note to the endorsee, and not a conditional one to pay if the maker does not, upon demand, after due notice. Chitty on Bills, 142. Strange, 478. 3 East, 482. 6 Cranch, 222. 4 Mass. R. 258. The en
This disposes, I believe, of all the important questions raised upon the argument; and although the discussion of each might have been much more extended, it is believed that enough has been said to settle all the material questions which will probably arise upon a second trial.
New trial granted.