SPRINGFIELD BANK vs. MERRICK & AL. PARKER, C. J. The writing which was in this case submitted to the jury, as evidence of the promise declared upon, must, with the accompanying testimony, be taken to be an engagement to pay facilities, to the amount of three hundred dollars nominal value, for that was the consideration of the note; and it was the understanding of the parties that the contract should have that effect. That evidence tending to give this character [*325] to the promise was legally admitted, is proved by the * case of Jones vs. Fales, cited in the argument; in which case the words foreign bills, at the foot of a note otherwise negotiable, were considered capable of being made, by evidence of the intent of the parties, an essential part of the contract, so as to defeat its negotiability. There can be no question but this memorandum, under the circumstances proved, must be considered as the act of the directors of the bank, and so binding on the stockholders. The verdict, then, ought to stand for the lesser sum, which is understood to be the value of the note, as payable in facilities, unless it shall be wholly set aside, on the ground that the contract is void, as against law. By the statute of 1809, c. 38, it was made unlawful for any bank to loan, negotiate, receive in payment, or otherwise to deal in, the bank bills of other states; and a heavy penalty was inflicted upon any who should transgress this law. The note sued in this action was made and received during the existence of this law, and in direct violation of its provisions. Can it, then, be recovered? If it can, the judiciary power may, to a very great extent, defeat the manifest intent of the legislature. For although the penalty may be sued for and recovered, yet circulation may be given to bills received upon such illegal contracts, and the penalty may never be exacted. The subsequent repeal of the act can have no effect upon a contract made while it was in force. As well might a contract, made for the purpose of trade with an enemy during a war, be purged of its illegality by the return of peace. The case of Camden vs. Anderson does not prove the point it was cited to support. It would seem rather, from the provisions of the statute commented upon in that case, that, when a penal statute was repealed, it might still be pleaded against any contract made in contravention of it, unless in the repealing act provision was made to the contrary. *The case of Little vs. Obrien is wholly different [* 326 ] from the case at bar. The defence against the note in SPRINGFIELD Bank vs. MERRICK & AL. that case was, substantially, that the corporation had no authority to receive notes for stock. Such notes were not declared to be illegal, nor was there any penalty for taking them imposed by the act. The verdict is set aside, and the plaintiffs must be called. (a) Plaintiffs nonsuit. (a) [Russell vs. Degrand, 15 Mass. Rep. 39. — Wheeler vs. Russell, 17 Mass. Rep. 258.-Dwight vs. Brewster, 1 Pick. 55.. Coombs vs. Emery, 2 Shep. 404.- Seidenbender vs. Charles, 4 S. & R. 159.- Sharp vs. Teese, 4 Hals. 352. ED.] 280 CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, FOR THE COUNTY OF WORCESTER, SEPTEMBER TERM, 1817. AT WORCESTER. PRESENT: HON. ISAAC PARKER, CHIEF JUSTICE. EPHRAIM MOWRY versus SAMUEL ADAMS. When the administrator of a surety pays the debt, he may maintain an action in his own name against the principal for indemnity; and the amount recovered by him will be assets in his hands. ASSUMPSIT on a promissory note, dated the 6th of November, 1812, made by the defendant to Paul Boyden, or order, for 120 dollars, payable in nine months, with interest, and endorsed by said Boyden; also counts for money had and received, and for money laid out and expended. The plaintiff, having filled up the endorsement to the bearer, avers that he is the bearer for a valuable con sideration. It appeared in evidence, at a trial had upon the general issue, April term, 1816, before Putnam, J., that P. Boyden was desirous of borrowing 120 dollars of one Roswell Warner, that the defendant gave his note to said Boyden for his accommodation, and that 24* 281 MowRY vs. ADAMS. Warner lent the money, and received the note endorsed in blank by Boyden. At the same time, Boyden gave his note to [*328] the defendant for the same sum, payable to him or * his order at the same time, as collateral security; which was not to be paid, unless the defendant should be obliged to pay the accommodation note he had given to Boyden. It was proved that the defendant sold the last-mentioned note, which Boyden had given him as collateral security, to Warner, and received the money for it, before it became due. Warner thus held both notes. P. Boyden died; and the plain tiff is administrator of his estate; and he paid the amount of both the notes to Warner. If, upon this evidence, it should be the opinion of the whole Court that the plaintiff could maintain this action in his own name against the defendant, judgment was to be entered upon the verdict, which was taken for the plaintiff; otherwise he was to become nonsuit. Lincoln for the defendant. Newton for the plaintiff. PARKER, C. J. The plaintiff, Mowry, has brought this action in his own name; and the question is, whether he can maintain it, or whether he ought not to have sued as administrator of Boyden. With respect to the count on the note, he could not recover, either in his own right, or as administrator, because the note was given by Adams for the use and accommodation of Boyden, the intestate, and ought to have been paid by him, he having received the money from Warner. Besides, he derives no title to it from having paid and taken up the note, with the blank endorsement of Boyden; for the note was not payable to bearer, as he has declared, but to order; and he has not averred any assignment of it to himself. With respect to the other counts, as the defendant was guilty of a breach of faith in endorsing the second note and receiving the money for it, he never having given any valuable consideration to Boyden for the note, he is conscientiously, as well as legally, bound to pay the amount to some one. The question is, whether he became indebted to the [ *329] * plaintiff, or to the estate of Boyden; and this depends upon the time and manner of his becoming liable. The mere taking up the money from Warner did not create the debt; for Boyden was not prejudiced, until he should be called upon to pay, nor would he have had a right of action, until so called upon. He died without paying, and there was therefore no promise to him. His estate was, however, liable, and the adminis MOWRY vs. ADAMS. trator, if called upon, was obliged to pay. The debt of Adams accrued when Mowry paid the money; an implied promise then arising to repay, it being, in fact, the debt of Adams for which Mowry was surety, and which was paid by Mowry to the use of Adams. But the promise could not accrue to Boyden, he being dead. It was therefore a promise to the administrator. Now, it is settled that, when a contract is made with an executor or administrator personally, after the death of the testator or intestate, or where money is received by the person sued after the death, in such cases, the executor or administrator may sue either in his own name, or as executor or administrator. By suing in his own name, he becomes answerable to the estate for the amount recovered, and it is an implied acknowledgment of assets to that amount in his hands. The present is a case of that sort. The plaintiff takes money of the estate to pay a debt, for which the estate is answerable; he sues the principal debtor in his own name; he is chargeable with the amount of the debt as assets; and he may recover the amount from the debtor in his own name. (1) Judgment on the verdict. (1) 6 Mod. 92, 181. - 2 D. & E. 477. — Willes's Rep. 103.-1 Com. on Con tracts, 526. [* 330] 1 * COMMONWEALTH versus SETH CALDWell. In an indictment for refusing to answer a tithingman on the Lord's day, it is not necessary to allege that the tithingman was sworn into his office; nor that he had any wand or badge of office; nor that he was known to the defendant to be a tithingman. THE defendant was indicted, under the statute of 1791, c. 58, 10, in the Circuit Court of Common Pleas, December term, 1815, for refusing to give answer to one Joseph Stone, a tithingman of Shrewsbury, on the 30th day of April, 1815, the same being Lord's day. Being convicted on trial in the Common Pleas, he appealed to this Court; and at April term, 1816, retracting his former plea, he entered a nolo contendere, and then moved in arrest of judgment, stating the following causes :— 1. That it is nowhere alleged, in the indictment, that the said Joseph Stone had, at any time before the said 30th day of April, |