same case also, at page 340, Roosevelt, J., again cites Leavitt v. Palmer, and expresses the opinion that the prohibition in the statute of 1840 applies only to "circulating notes." The same point was directly decided in Pelham v. Adams, Id. 386, where it was held that a certificate of deposit issued by a bank, payable on demand, with interest, was not within the prohibition of the statute, if not intended for circulation, and the principal case was distinguished as one in which the notes were designed for circulation. But, as appears from the foregoing opinion of Bronson, J., it was expressly declared that there was no such qualification in the statute." In Beers v. Phoenix Glass Co., 14 Id. 362, the principal case is cited on the question as to the implied power of a corporation to borrow money to carry on its business. This, doubtless, refers to what was said on that point in the court below: Leavitt v. Blatchford, 5 Id. 9.

In Stewart v. National Bank of Maryland, 2 Abb. (U. S.) 424, 431, it is held, that where a corporation makes a loan in excess of the amount allowed by law, and the contract has been executed, equity, although it would not enforce it, will not relieve against it, nor cancel the transaction and compel a return of the securities, but will leave the parties as it finds them, distinguishing the principal case as not touching the question of the validity of the original loan.

CONTRACT ORIGINATING IN TRANSACTION FORBIDDEN BY STATUTE under penalty is void, though not expressly declared to be sc, and can not be enforced: Mitchell v. Smith, 2 Am. Dec. 417; Seidenbender v. Charles, 8 Id. 682; Sharp v. Teese, 17 Id. 479; Johnson v. Cooper, 24 Id. 502; O'Donnell v. Sweeney, 39 Id. 336. And generally, contracts in violation of law are void, and can not be enforced, where the parties are in pari delicto: Wilson v. Spencer, 10 Id. 491; Hibernia T. Corp. v. Henderson, 11 Id. 593; Gulick v. Ward, 18 Id. 389; Linn v. State Bank, 25 Id. 71; Norris v. Norris' Adm'r, 35 Id. 138; Gravier's Curator v. Carraby's Executor, 36 Id. 608; Webb v. Fulchire, 40 Id. 418; Howell v. Fountain, 46 Id. 415; Boutelle v. Melendy, 49 Id. 152, and notes. But if the contract has been executed, the law will not aid or relieve either of the parties: Black v. Oliver, 35 Id. 38; Norris v. Norris's Adm'r, Id. 138; Webb v. Fulchire, 40 Id. 419. If, however, the parties are not in pari delicto, the innocent party may recover money paid upon the contract: Gray v. Roberts, 12 Id. 383. To the point that an unlawful contract can not be enforced while executory, nor set aside if executed, nor made the foundation of an implied assumpsit, the principal case is cited in Gillet v. Phillips, 13 N. Y. 119. And generally, that no contract founded upon or growing out of an unlawful act can be enforced, the case is cited in Jackson v. Shawl, 29 Cal. 271. As to what is to be deemed an illegal contract, the principal case is cited in Porter v. Havens, 37 Barb. 348.

RECEIVER OF INSOLVENT CORPORATION MAY IMPUGN ITS ACTS for fraud or illegality, because he represents both the corporation and the creditors: Porter v. Williams, 9 N. Y. 150, citing the principal case. That point, it will be noticed, however, is not expressly decided, but rather assumed, in the case. In Potter v. Clark, 12 How. Pr. 113, the case is also cited as one of a large number of authorities in favor of the receiver's power to impugn contracts which the parties themselves could not. In general, however, the receiver of a corporation is bound by its valid acts as fully as the corporation itself: Hyde v. Lynde, 4 N. Y. 392, distinguishing the principal case.

CERTIFICATE OF DEPOSIT, NATURE AND NEGOTIABILITY OF: See O'Neill v. Bradford, 42 Am. Dec. 574, and the note thereto, discussing this subject at length: See also Southern Loan Co. v. Morris, 44 Id. 188. That a certificate

of deposit is, in legal effect, a promissory note, is a point to which the principal case is cited in Poorman v. Mills, 35 Cal. 120. And in Pardee v. Fish, 67 Barb. 407, 410; S. C., in court of appeals, 60 N. Y. 268, the case is cited to the same point, and it is held that the indorsee of such an instrument may sue the indorser, after due demand upon the bank and notice of dishonor, as in the case of a bill or note.

CONTRACT PARTLY ILLEGAL OR VOID, or founded on a consideration part of which is illegal or void: See Woodruff v. Hinman, 34 Am. Dec. 712; Sargent v. Webster, 46 Id. 743; Filson v. Himes, 47 Id. 422, and cases cited in the notes thereto. It Arnot v. Pittston etc. Coal Co., 2 Hun, 594; S. C., 5 Thomp. & C. 145, the principal case is cited to the point that if one promises, upon a valid consideration, to do two things, one of which is legal and the other illegal, he is bound to perform that which is legal, unless the two are so mingled that they can not be separated, in which case the whole promise fails. It is cited to the same point, substantially, in Jackson v. Shawl, 29 Cal. 272; and is cited and commented upon in Saratoga Co. Bank v. King, 44 N. Y. 91. In Hardin v. Hyde, 40 Barb. 441, Allen, J., dissenting, held, citing the principal case, that where a mortgage given to secure several debts was illegal in form as to one of them, and the trust for its payment was therefore void, it was nevertheless good as to the other debts which were valid, because the trusts were not only separable but actually separated, and a distinct trust was created as to each debt. In Curtis v. Leavitt, 15 N. Y. 9, a case arising against the same corporation as in the principal case, where a loan of a large sum of money was made to the corporation by certain Philadelphia banks, and certain interest-bearing certificates were issued to the banks, and a written agreement was executed, reciting the fact of the loan and of the issuance of the certificates, and pledging certain bonds of the company as collateral security for the payment of the certificates, it was held, that although the certificates were void as having been issued contrary to the prohibition of the statute of 1840, yet the pledge was a valid security for the money lent, and was not affected by the illegality of the certificates, because the contract disclosed the existence and cause of the debt, and although the terms of the instrument might confine it to the certificates, the law nevertheless instantly annexed the pledge to the debt. Comstock, J., says, page 101: "This question, although it would seem a very plain one, is nevertheless supposed to be embarrassed by the decision of this court in Leavitt v. Palmer, 3 Id. 19. That decision very probably proceeded in part upon views of illegality, and its consequences as affecting the entire transaction, somewhat stronger than we might now feel inclined to sanction. But the cases differ widely. If they did not differ, we might be led to believe that principles quite familiar had somehow been overlooked." He then proceeds to comment at length upon the principal case, and to point out the differences between it and the case at bar.

EQUITY WILL RELIEVE ON GROUND OF MISTAKE IN INSTRUMENT, WHEN: See Newcomer v. Kline, 37 Am. Dec. 74; Willis v. Henderson, 38 Id. 120; Evarts v. Strode's Adm'r, Id. 744; Juzan v. Toulmin, 44 Id. 448; Osborn v. Phelps, 48 Id. 133, and cases cited in the notes thereto. See, particularly, as to mistake or ignorance of law as a ground of relief in equity, McNaughten v. Partridge, 38 Id. 731; Evarts v. Strode's Adm'r, Id. 744; Trigg v. Read, 42 Id. 447; Juzan v. Toulmin, 44 Id. 448, and cases cited in the notes to those decisions. In Fellows v. Heermans, 4 Lans. 244, it is held, citing the principal case, that a mistake of law, if the facts are known, is no ground for equitable relief where a contract was fairly made. So, in Lambert v. Leland, 2 Sweeny, 223, and in

Upton v. Tribilcock, 13 Nat. Bank. Reg. 176, 177, the case is cited to the point that equity will not grant relief on the ground of a mistake of law, as to the effect of a contract or writing. If the instrument is drawn precisely as intended, the court will not interfere with it: Beers v. Hendrickson, 6 Robt. (N. Y.) 77. The equitable jurisdiction to reform an instrument does not extend to an alteration of the contract, but only to conforming it to what was actually agreed on, if, by mistake, it was differently drawn: Garnar v. Bird, 57 Barb. 287. Even in a direct suit for that purpose, a written instrument will not be reformed on the ground of mistake, unless the mistake is clearly and satisfactorily proved, and is mutual: Ramsay v. McMillan, 5 Abb. N. C. 255; all citing the principal case.

BLOT V. BOICEAU & RUSCH.

[3 NEW YORK (3 COMSTOCK), 78.]

FACTOR WHO RECEIVES GOODS UNDER INSTRUCTIONS to sell for not less than a specified price can not sell below that price because he has made advances, until he has demanded repayment of them from his principal. FACTOR WHO WRONGFULLY SELLS GOODS of his principal below the price limited in his instructions is presumptively liable for damages as if the limited price were the true value of the goods; but evidence that the limited price could not have been realized, and that the market value at the time of sale and after was less than that price, is competent to reduce the recovery to such market value with interest. WHETHER. PRINCIPAL IS ENTITLED TO HIGHEST MARKET VALUE down to the time of the trial, or only to the commencement of the action for a wrongful sale of goods by his factor, quære.

ERROR to the New York superior court to review a judgment for plaintiff in assumpsit. The declaration showed that the plaintiff, Andrien Blot, a manufacturer in France, consigned goods to the firm of Boiceau & Rusch (the defendants, who were commission merchants in New York city), for sale, at net prices at least equal to those given in the accompanying invoices; but that defendants had wrongfully sold them for less, and demanded damages. The plea was the general issue, with notice that defendant would claim, to recoup for services and expenses in making sales, and for money they had advanced to the plaintiff. On the trial, the plaintiff's counsel put in evidence a series of letters relating to the consignment (the substance of which is given in the opinion of Ruggles, J.), which, he claimed (and the court so held), amounted to instructions from the plaintiff not to sell below invoice prices, net. These letters also showed that the defendants had advanced money to the plaintiff on the consignment, but did not show that he had requested it, or that they had demanded repayment before selling. A motion for

nonsuit, made on the ground, among others, that a factor who has made advances is at liberty to sell in the ordinary course of business, and even contrary to instructions, for the reimbursement of his advances, having been denied, the defendants offered to prove that they made prompt and earnest efforts to sell the goods at invoice prices, but this could not be done; that the goods would have depreciated by delay; and that the defendants at length sold them for the best prices possible, and accounted to the plaintiff for the sum realized. The presiding judge excluded this evidence, and directed a verdict for plaintiff, subject to the opinion of the court; and the court, after hearing argument, directed judgment in his favor "for the difference between the invoice price, adding freight, charges, duties, and commissions, and the amount which the defendants have paid and advanced to the plaintiff:" 1 Sandf. 111; and defendants brought error.

Griffin and Larocque, attorneys, and J. W. Gerard, of counsel, for plaintiffs in error, the factors.

Henry Nicoll, for defendant in error, the principal.

By Court, RUGGLES, J. The letters from the plaintiff to the defendants, containing invoices of the goods in controversy and instructions in relation to their sale, were received before the defendants made any advances of money on the goods. The goods must therefore be considered as received and held by the consignees subject to such instructions: Brown v. McGran, 14 Pet. 495. The goods had not then arrived, and the advances were made upon the invoice prices, before the quality and value of the goods had been ascertained by the consignees; and it turned out that the sums advanced were greater than the actual value of the goods in the New York market, but there is no ground for supposing that the goods were fraudulently overvalued for the purpose of procuring the advance. The advance, although it may have been expected, was not demanded by the consignor, nor its amount suggested. The consignor was probably mistaken with respect to the value of the goods in this country. The consignees being therefore bound by the instructions, it becomes necessary to ascertain what they were.

In the letter containing the first invoice of three cases of goods, the plaintiff Blot wrote to the defendants, "We mean to get back at least the principal sum. If you can obtain a profit on these prices it will give me much pleasure. Be careful to make the merchandise bear all the expenses incurred by them,

as well for freight as for duties. I desire that all I send you should be sold this season." This letter was received on the eighteenth of July, 1844. The goods, which came by the ship St. Nicholas, had not yet arrived.

On the second of August, and before the arrival of that ship, the defendants received a second letter, containing an invoice of three additional cases of goods amounting to five thousand four hundred and ninety-one francs and forty-two centimes. In that letter the plaintiff says, "You will please credit me with that amount in account, and sell at least at the prices invoiced, adding thereto the expenses, duties, and commissions. For greater clearness, I mean to get back on this account the same as in the value of my first consignment, which I now confirm. It is also my wish that you should dispose of all these goods this season. I do not like to have goods lying over from one season to another."

The first letter does not contain an explicit order not to sell the goods for less than the invoice prices and expenses. The plaintiff says only, "we mean to get back at least the principal sum," desiring in the same letter that the goods should be sold that season. From this letter the consignees might well have supposed the plaintiff's intention was to have the goods sold for the specified price, if they could be sold at that price during the season, and if not, that they should be sold at all events. But the second letter contains a positive direction to sell at least for the specified prices; and although in the same letter the consignor says, "it is his wish" that the goods should be sold that season, he gives no positive order to that effect. The defendants could not have failed to understand that the instructions contained in the last letter would have protected them in keeping the goods on hand, if they could not be sold at the invoice prices with the expenses added. They appear to have so understood the directions; for in their letter to the plaintiff, dated thirtieth of August, 1845, they do not complain of any obscurity in their instructions, nor do they pretend that they were authorized by their tenor, to sell for the prices actually obtained; but they undertake to justify the sales on the ground, that having made advances on the consignments, they were authorized to sell for their own reimbursement, although at less than the specified prices. In this they were mistaken. Having received the invoices and instructions before they made the advances, they must be deemed to have assented to the instructions; and were bound by them until after having found that the goods could not be