State v. Shelters. 1839. From Slade's Compilation of the Statutes in 1824, to the adoption of the Revised Statutes in 1839, the forgery of "any acquittance or receipt for money, goods, or other property " was punishable by statute. But in the Revised Statutes the word "discharge" was substituted for "receipt," and the word "goods" omitted; and the law has remained the same ever since. We think it is apparent from the old statute and the amendment, that the legislature understood a receipt to be included either in the term acquittance or discharge; for it is hardly supposable that the Legislature intended, by the amendment of 1839, to exclude the forgery of a receipt for money or other property from the operation of the statute, so that it would not thereby be punishable. The word acquittanee, although perhaps not strictly speaking synonymous with receipt, includes it. A receipt is one form of an acquittance; a discharge, another. It is not questioned but that a receipt in full is an acquittance. Why, therefore, is not a receipt for a part of a demand or obligation an acquittance pro tanto? We are aware that lexicographers do not fully agree as to this; but in legal proceedings, a receipt is regarded as an acquittance. See 2 Bish. Crim. Law, § 557; Rex v. Martin, 7 C. & P. 549; Regina v. Houseman, 8 id. 180; Regina v. Atkinson, 1 Car. & M. 325; Com. v. Ladd, 15 Mass. 526; Whart. Prec. Ind. 383. II. It is also claimed that the indictment is defective for the reason that it contains no averment of any transactions or dealings between the respendent and Holbrook from which it appears that the receipt could have been used to defraud; nor any averment that the original receipt was ever delivered to the respondent as an acquittance or discharge, or held by him as such. But such averments are unnecessary. Extrinsic facts are required to be set forth or stated, only when the operation of the instrument upon the rights or property of another is not apparent from the instrument itself. Such is not the case with the instrument in question. Its effect upon the rights of Holbrook is apparent from the instrument itself. The intent to defraud is the gist of the offense charged; and this must not only be alleged in the indictment, but proved. See Snell v. State, 2 Humph. 347; Rex v. Martin, supra; 2 Bish. Crim. Proc. § 366; 2 Bish. Crim. Law, §§ 354, 355; 2 Whart. Crim. Law, § 1487; Com. v. Ladd, supra; People v. Stearns, 21 Wend. 409. The intent to defraud is sufficiently alleged, under our statute, although the person or party intended to be defrauded is not named. See 88, chap. 114, Gen. Sts. VOL XXXI-86 Giddings v. Giddings' Administrator. The judgment of the County Court, overruling the demurrer and adjudging the indictment sufficient, is affirmed, and the cause remanded to be proceeded with. G., wishing to pay to each of his three nephews a third part of their father's interest in his mother's dower estate, which G. had had and enjoyed, but recovery of which had become barred by the statute of limitations and also, wishing to make to each a gift, having declared to them his purpose so to do, drew three promissory notes, payable one to each, in one year after his death, intending to leave them in the hands of some third person, subject to his own control, to be delivered after his death, if he should not retake them or otherwise direct. He put the notes into an envelope, sealed and addressed to one of the nephews and others, in care of F., and delivered it to F., with directions about its custody, which F. indorsed on a wrapper that he put around the envelope as follows: Letter left in my care by Benj. Giddings, to be handed to Mr. Giddings, if he calls for it; otherwise not to be opened in his lifetime." The intestate died without ever having called for the package. After his death, F. delivered the notes to the respective payees. Held, a valid delivery of the notes,* and that they were upon a valuable consideration, and enforceable for the full amount; although the original claim was less than the note. LAIM on a promissory note. The opinion states the facts. The plaintiff had judgment for one-third his claim. Both parties appealed. Levi H. Brown, J. B. Beaman and Prout & Walker, for plaintiff. W. G. Veazey and J. B. Phelps, for defendant. There is no consideration beyond the smaller sum, aud the notes cannot be sustained as a donatio causa mortis. Smith v. Kittridge, 21 id. 238; French v. Raymond, 39 Vt. 623. Holley v. Adams, 16 Vt. 206. Parish v. Stone, 14 Pick. 198, There was no delivery. Gough To same effect, Ellis v. Secor (31 Mich. 185), 18 Am. Rep. 178, and note, 184; Gardner V. Merritt (32 Md. 78), 3 Am. Rep. 115. Giddings v. Giddings' Administrator. ▼. Findon, 7 Exch. 48; Bromage v. Lloyd, 1 id. 31; Clark v. Sigourney, 17 Conn. 510; King v. Woodbridge, 34 Vt. 565. There is a distinction between the delivery of a deed to a third person as an escrow, and of a note a mere promise to pay. In the case of the fira! delivery of a deed the title passes from the time of the first Jelivery. But the courts of different States are in controversy as to the effect of the delivery of an escrow, to be delivered after the death of the grantor; the courts of New Hampshire holding one way, as in Cook v. Brown, 34 N. H. 460, while the courts of Vermont hold the other, as in Morse v. Slason, 13 Vt. 296. The authority of Frisbie, as the agent of Giddings, to deliver the notes, ceased upon the death of Giddings. 2 Kent Com. 645; 1 Pars. Cont. 71, and cases cited; Dunlap's Paley Agency, 186 and notes. ROYCE, J. This case was heard on the report of a referee, and the court below rendered judgment for the plaintiff, on the report, for the smallest sum named, to which both parties excepted. The facts appear fully from the report, which is made a part of the exceptions. The first question in the consideration of the case, and the most important in the view we take of it, is as to the delivery of the note in suit. Benjamin Giddings, defendant's intestate, and his brother Joseph, met in 1867, and in conversation Benjamin admitted that he considered he ought to make good to Joseph, or to those who would have his estate, his (Joseph's) share in their mother's dower estate, which had never been claimed by Joseph, and on which the statute of limitations had then run, and which the referee finds was worth, on the 1st of January, 1866, "as near as can now be ascertained," $375.20. In consideration of this, and certain good but not valuable considerations, Benjamin afterwards executed three promissory notes in writing for the sum of $500 each, payable one to each of Joseph's three sons, respectively, one year after the maker's death, one of which notes is declared upon as the cause of action in this suit. He intended, as the referee finds, to leave these notes in the hands of some third person, subject to his own control, to be delivered after his death, if he should not retake them or direct otherwise. He informed Joseph and each of the payees of his intention, as above, and they all assented to the arrangement. After that he put the notes into a letter envelope and sealed it up, and wrote on it this address: "Henry F. Giddings, of Ellisburg, Jefferson county, N. Y., and others, in Giddings v. Giddings' Administrator. care of Barnes Frisbie, Esq., of Poultney," and delivered it to Barnes Frisbie of Poultney, at Poultney, with directions about the custody of it, which Frisbie, as the referee finds, indorsed correctly, in substance, on a wrapper that he put around it, in these words: "Letter left in my care by Benj. Giddings, to be handed to Mr. Giddings if be calls for it; otherwise not to be opened in his lifetime." Benjamin did not retake the package; and after his death in 1873, Frisbie opened it, and delivered the notes respectively to the payees named in them, this plaintiff, and Henry F. and Benjamin F. Giddings, his brothers. In Belden v. Carter, 4 Day 66, A, having signed, sealed and acknowledged a deed of certain lands to B, gave the deed, in the absence of B to C, saying: "Take this deed and keep it; if I never call for it, deliver it to B after my death; if I call for it, deliver it up to me." A died without retaking the deed, and C delivered it to B. Held that the delivery become complete and took relation back to the first delivery. In Worth v. Case, 42 N.Y., 362, a note remained in the hands of the payee until the death of the maker, being received and held by him subject to the condition that it should be returned to the maker whenever he might wish it during his lifetime; and the note was held valid. And in Foster v. Mansfield, 3 Met. 412, it is laid down that if a grantor directs and intends that his deed from and after its execution shall be retained by the scrivener until after the grantor's death and then delivered to the grantee, all of which if afterwards done, the estate vests in the grantee from the time of the execution of the deed. On the authority of these cases, and the principles of law upon which they were decided, it seems clear that had Benjamin handed the notes to Frisbie with specific instructions, as in Belden v. Carter, supra, the delivery would have been sufficient, and on the death of the maker, with the option of recall unexercised, and the actual receipt of the notes by the payees, would have become complete and taken effect back by relation to the time of the deposit of the notes with Frisbie. Were the acts and words of Benjamin and the understanding and treatment thereof by all the parties, as shown by the referee's findings, equivalent to such a specific direction? Upon the part of the defendant it is contended that the acts of the maker simply constituted Frisbie a depositary of the notes for him, with no authority to deliver them to the payees in any event; and that whatever agency he might have been invested with to deliver them upon further instructions was revoked by the Giddings v. Giddings' Administrator. death of Benjamin. In order to accept this construction, it is necessary to reject as meaningless the direction written by Benjamin upon the envelope containing the notes, and to declare unjustifiable the acts of Frisbie based upon his understanding of the meaning of that direcThe policy of the law is to give effect to all the acts and words of parties, when it can be done without repugnancy. tion. It is an affair of daily occurrence that notes, deeds, contracts and other written instruments, as well as personal property of every description, are placed in the hands of common carriers, and often of private carriers, by makers and consignors, with no instructions concerning their delivery, beyond a direction upon the outside wrapper in terms precisely analogous to those used in the address written upou the envelope handed to Frisbie by Benjamin Giddings. Such delivery has universally been held to be a delivery to the consignee named in such address; Bull v. Sibbs, 8 T. R. 327; Biggs v. Lawrence, 3 id. 454, though the particular carrier be not named by the consignee. Dutton v. Solomonson, 3 B. & P. 582; Jacobs v. Nelson, 3 Taunt. 423. And although the completion of the delivery is defeasible by the consignor by the exercise of his right of stoppage in transitu, yet upon delivery to the carrier, the property instantly vests in the consignee, and when the actual delivery to him is fully completed it takes relation back. This doctrine is based upon the theory that the consignee, either expressly or by implication, constitutes the carrier his agent to receive the property for him. In the case at bar the payees of the three notes in terms assented to their delivery to some third person by the maker, who should hold them subject to an option of recall by the maker during his life, and then complete the delivery by handing them over to the payees; also that the selection of such third person should be left to the maker. In pursuance of this arrangement Benjamin selected Frisbie as such third person, and handed the notes over to him with oral directions concerning the option of recall, and written directions, in the form of an address upon the envelope, in precisely the terms ordinarily used in delivering papers or goods through the agency of a carrier, for their delivery to the payees, in case he should die with the option of recall unexercised. From this direction Frisbie, as evinced by his acts, understood, as any inteliigent person would have done, that if Giddings died without reclaiming the packet, he was to deliver it-not to Giddings' personal representatives, in the absence of any instructions written or oral to that effect-but to the parties to |