ULLMAN V. MEYER.
standing the want of formal notice of the decision, the importer may immediately sue to recover back the duties alleged to have been illegally exacted, and the limitation upon his right to do so begins to run at the same time. The argument for the demurrer assumes that it was the intention of congress that the importer should have all of 90 days within which to commence his action. But as, in the great majority of cases, one-third of that period is more than sufficient for such purpose, the remaining 60 days must have been given to cover any possible contingencies, such as the getting or receiving notice of the decision of the secretary. This action not having been commenced within 90 days from the decision of the secretary, it is barred by lapse of time, and the demurrer is therefore sustained.
(Oircuit Court, S. D. New York. January 31,1882.
1. STATUTE OF
FRAUDS-PROMISES TO MARRY.
The provision of the stat.te of frauds requiring all agreements not to be performed within a year to be in writing, applies to promises to marry. The exception in the third section of the statute does not withdraw agreements to marry altogether from its GperatioD.
Motion for N':lw Trial. WALLACE, D. J. I am constrained to hold that the defendant was erroneously precluded from the benefit of his defenIJe under the statute of frauds on the trial of the action, and that the construction of the statute, which, upon a hasty reading seemed correct, cannot be maintained. The case turns upon the construction of the statute of frauds, the phraseology of which differs from tqat of the statute of Charles II. It is stated in Parsons on Contracts, (vol. 3, p. 3,) that although provisions substantially similar have been made by the statutes of this country, in no one state is the English statute exactly copied. .. It was alleged in the present case, and the evidence tended to show, that by the terms of the agreement of marriage between the parties the marriage was not to take place until some time after the expiration
-Reported by S. Nelson White, Esq., of the New York bar.
of One year. It was held that, by force of the exception in the third sootion of our statute, promises to marry were not required to be in writing under any circumstances, the view being taken that it was the intention of the statute to withdraw agreements to marry altogether from its operation. As an original proposition it might be debated whether the statute of frauds was ever intended to apply to agreements to marry. They are agreements of a private and confidential nature, which, in countries where the cOmmon law prevails, are usually proved by oircumstantial evidence, and at the time the English statute was passed were not actionable at law, but were the subjeots of prooeedings in the ecclesiastical courts to compel performance of them. Nevertheless, at an early day after such actions beoame cognizable in courts of law the defence of the statute of frauds was interposed, under that dause of the statute whioh denies a right of aotion upon any agreement made upon considoration of marriage unless the agreement is in writing; and though it was held that suoh clause only related to agreement for marriage settlements, there seems to have been no doubt in the minds of the judges that promises to marry were within the general purview of the statute. In our own oountry, in Derby v. Phelps, 2 N. H. 515, the question was direotly deoided, and it was held that although the defenoe could not be maintained under the marriage dause of the statute, it was tenable under the clause requiring all agreements not to be performed within a year to be in writing.. To the same effect are Niehols v. Weaver, 7 Ran. 878, and,Lawrence v. Cooke, 56 Me. 193. The question has never been presented in our own state, and the ruling upon the trial was made under the impression that the exception in the third olause of our statute was meaningless, unless intended to relate to all the clauses. It was entirely unnecessary if limited to the particular clause in whioh it is plaoed, beoause by the settled oonstruction of the statute the clause did not apply to the exoepted olass of promises. 1 Ld. Raym. 387; 1 Strange, 34. When English statutes, suoh as the statute of frauds, have been adopted into our own legislation, the known and settled construction of these statutes has been considered as silently inoorporated into the aots. Pennock v. 2 Pet. 1. . A more careful examination has, however, satisfied me that the .only purpose of inserting the exception was by way of explanation, and to remove any doubt as-to the meaning of the olause by inoorporating into it expressly what would otherwise have been left to im-
THIRD NAT. BANK V. HARRISON.
plication. This conclusion is more reasonable than the supposition that so important au innovation upon the statute of frauds would have been engrafted so ambiguously. If it had been intended to exclude promises of marriage altogether from the operation of the statute, it could have been plainly evinced by inserting the exception where it would naturally apply to all the classes of promises required to be in writing; as it is, it more obviously refers to the m,arriage clause, and the class of promises covered by that clause. has no necessary relation to the other classes of promises. While, the letters of the parties show a marriage engagement, the terms .of the engagement and the time of the marriage are not indicated sufficiently to take the case out of the statute. The evidence offered to show that the promise of the defendant was not, by its terms, to be performed within a year, was sufficient to present a question of fact for the jury. As this question was withdrawn from their consideration, there must,be a new trial.
NAT. BANK V. HARRISON
SAME V. SAME.-
(Circuit Oourt, E. D. Missouri.
GAMING LAWS-REV. ST. MENTS.
Pebruary 13, 1882.)
5722-3-0PTION DEAl.S-NEGOTIABLE INsTRu-
An option deal is not a" gaming or gambling device," within the meaning of the Missouri statutes, and a note given for a balance due on such a deal may be enforced by a bonafide holder for value, without natke, if indorsed to him before maturit,y.
Where a bank in the absence of a director, by whom a note has been offered for discount, accepts it, and accepts a note payable to him and indorsed to it IlB collateral, its rights are not affected by such director's knowledge of illegality in the inception of the note acceptei as security.
An indorsee for value of a promissory note is presumed, in the absence Of evidence to the contrary, to have taken it without notice of cqu"ties SUu;;isling between the maker and payee.
4. S,UIE-COLLATERAl. SECURITy-DEMAND-BANKING.
Where a bank discounts a demand note for a depositor and receives another in.strument as collateral, the liabilities of parties to the latter are not affected by a·failure on the bank's part to make any attempt to collect such .demaildnote when tile maker has a sufficient sum on deposit to meet it.
*RcpOioted by B. F. Rex, Esq., of the St. Louis bar.