This is the relief prayed for by the plaintiff, and we are all of opinion, that he is entitled to it.

Demurrer overruled.

LESSEE OF BURGETT v. BURGETT.

A voluntary conveyance, without consideration, and made to defraud creditors is not void as be tween the parties, but only as against creditors and subsequent purchasers.

It is frequently the duty of courts to restrain, or qualify or enlarge the ordinary meaning of words in order to carry into effect the intention of a statute.

This was an action of ejectment, tried at the July term, 1824, in the county of Butler.

The plaintiff gave in evidence a patent from the United States to Henry Burgett, for the land in question, and a deed for the same land from Henry Burgett to the Lessor of the plaintiff. The defendant then introduced witnesses to prove that the deed from Henry Burgett to Daniel Burgett was wholly without consideration, and intended to defraud creditors, and that Danied Burgett had notice of that intention. It was admitted at the trial, that John Burgett, late husband of the defendant, was a creditor of Henry at the time of the conveyance to Daniel; that he died in possession of the premises; that the defendant, his widow, had continued in possession ever since, and that John was in posses. sion when the deed was made to Daniel.

Wood, for the plaintiff.

Sargeant, and Dunlavy contra.

Opinion of the Court by Judge BURNET.

The question of greatest difficulty in this case, arises from the fact, that our statute, the second section of which, embodies, in part, the substance of the 2d section of the 13th, and the 2d section of the 27th Eliz. contains no express words confining its operation to creditors, nor any proviso in favor of purcha sers for a valuable consideration and bona fide. The section is in these words. "That every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods, or chattles, and every bond, judgment or execution, made or obtained, to defraud creditors of their just and lawful debts, or damages, or to defraud or deceive the person, or persons who shall purchase such lands, tenements, hereditaments, rents, goods, or chattels, shall be deemed utterly void and of no effect."

The statute contains no other provision, bearing on the subject.

It will be recollected that the statutes of 13 and 27 Eliz. not only contain provisos, that restrain them from operating against conveyances made for a good consideration and bona fide, but also restrictions, by which conveyances intended to defraud creditors and purchasers, are made void, only as against the persons intended to be defrauded.

If the language of our statute is to receive a literal construction, the direc tion given to the jury was correct, but a majority of the court are of opinion that it ought not to receive such an interpretation, as it would lead to consequences not contemplated by the legislature, and would, in part, defeat the

intent of the law, which was, not only to prevent the effect of fraudulent conveyances, but to remove, as far as possible, the inducement to attempt them. The literal meaning of the language used, would render the covenous deed void, not only as to the persons intended to be defrauded, but also as to stran. gers, and even the grantor himself. If the deed be utterly void and of no effect, in the literal acceptation of those terms, the title must remain in the grantor, and he may, at any time, reclaim the property, by proving his own fraud. The consequences of such a doctrine, and the impunity which it offers to those, who may attempt to evade the statute, could not have been contempla. ted by those, who framed the law, nor do we believe the rules prescribed for construing statutes, require, or admit of such an interpretation.

It frequently becomes the duty of courts, in order to give effect to the manifest intention of a statute, to restrain or qualify, or enlarge the ordinary meaning of the words that are used. It is said, that the power of construing a statute is in the judges, who have authority over all laws, and more especially over statutes, to mould them, according to reason and conscience, to the best and That the learned sense entertained of the statutes 13 and 27 Eliz. is, that they render conveyances void, to such purposes, and to such extent, as may be necessary to accomplish their object, and that the construction adopted has been the rei gerendæ aptior. (Roberts frau: cont. 381, 4 Bac. title statute H. S. 1.

truest use.

The intention of the law makers, may be collected from the cause, or necessity of the act, and statutes are sometimes construed contrary to the literal meaning of the words. It has been decided, that a thing within the letter, was not within the statute, unless within its intention. The letter is sometimes restrained,sometimes enlarged and sometimes the construction is contrary to the let. ter. (4 Bac. title statute J. S. 38, 45, 50.) The object of our statute appears from its title, to be the prevention of frauds and perjuries, and although it is said, that the title forms no part of the act, (1 Lord Ray, 77,) yet the reason of this dictum seems to be the practice of Parliament, by which, the title is prefixed to the statute, at the discretion of the clerk of the house, in which the bill originated, but such is not the practice with us. The title is framed in the same manner as the bill, and is sanctioned by the vote of both branches of the legislature; we may therefore consider it as explanatory of the object of the law, and it may safely be said that the object disclosed by the title in this case, does not render it ne. cessary to treat a fraudulent deed as utterly yoid against the grantor, or against stangers who have no interest, claim or demand, either on the property, or on him who has conveyed it. The same inference may be drawn from the language of the section, which declares a conveyance, &c. made to defraud creditors or purchasers to be utterly void. Why should it be void? Because it operates as a fraud on the persons named, not on strangers, who have no interest in the transaction, nor on the maker of the deed, who is the principal, or only agent in the fraud. The intention of the statute then, was to protect creditors and purchasers, and to effect this purpose it cannot be necessary to extend it to any other description of persons. The rights of this defendant are not affected by the deed to Daniel Burgett-it was not made to defraud her-she had no interest in the transaction-she was neither a creditor nor a purchaser, and consequently not one of those for whose protection the statute was made. Every

statute should be construed with a reference to its object, and the will of the law makers is best promoted by such a construction as secures that object, and excludes every other.

The rules laid down in Heydon's case, (3 Rep. 7,) which direct a reference to the common law, before the statute the mischief complained of—the remedy provided, and the true reason of that remedy, are sufficient to authorize the construction claimed on the part of the plaintiff.

Although the principles of common law are strong against fraud in every shape, yet we find it decided in Twine's case, (3 Rep. 83.) that an estate made by fraud, can only be avoided, at common law, by him who had prior right, title, interest, debt, or demand, and not by one whose right, or demand was more puisne or subsequent to the conveyance. The common law also, of which the statute is said to be declarative, professed to protect only creditors, purchasers, and those having right. It did not extend its care to trespassers, or to persons pretending to claim without right, or to those who might be caught in their own toils. It was moreover considered, in reference to those for whom it professed to give a remedy, too tender in presuming fraud from circumstances, and too rigid in requiring proof.

This was the scope and extent of the common law, and it shews that the mischief to be remedied by the statute, was the difficulty of proof, and the frauds that might be successfully practised, on persons having right, title, interest, debt, or demand, accruing after the conveyance. Neither the condition of strangers, or persons without right or demand, nor the safety of the fraudulent grantor, entered into the consideration of the common law, nor did their case constitute any part of the mischief to be remedied. Hence we may conclude, that the statute was intended, exclusively, for the benefit of creditors and pur. chasers, and was made to increase the facility of avoiding frauds, on such as were creditors and purchasers prior to the conveyance, and to extend the relief to those whose rights might accrue after the conveyance, consequently the interest of the fraudulent grantor, and the pretences of those who have no right, were not within the mischief, and therefore not entitled to the remedy.

It being the duty of courts to give such a construction to statutes as will suppress the mischief, and advance the remedy, we are constrained to say that our statute, as it applies to the case before us, must receive the same construc. tion as though it had contained the restriction and proviso found in those of Elizabeth, nor do we believe that in so deciding we enlarge the rules, or extend the license given for the construction of statutes. Should a case occur in which the intention of the legislature is doubtful, the literal and obvious interpretation of the terms ought to be adhered to; but in the case before us the major. ity of the court entertain no doubt. The case of the defendant is not within the mischief, nor necessarily within the terms of the remedy. It being decided, that the deed in question is void only as to creditors and purchasers, and the defendant being neither a creditor nor a purchaser, it follows that she has no right to impeach it.

On the authority of Anderson v. Roberts, (18 John. 515,) and the cases there cited, we consider this deed as voidable, only by the parties aggrieved. It remains doubtful whether the creditors of Henry Burgett will find it necessary to

contest it. Their debts may be provided for in a different way, and should that be the case, for what purpose shall the deed be declared void? Shall the title be considered as remaining in the fraudulent grantor, or in perpetual abeyance, or extinguished, so as to protect the defendant by the mere circumstance of occupancy. On the principle contended for we do not see how these consequences are all to be avoided. If the deed be literally a nullity, the parties stand as though it had never been executed; the title remains in Henry Burgett, and he may shew his own fraud to avoid his deed. If, on the other hand, the title has passed from him without vesting in his grantee, and the creditors should be otherwise provided for, it is either extinguished, or in perpetual abeyance, so that no person can question the right of him who may happen to be in possession, though without a color of title. Such a state of things, we are confident, the legislature did not design to produce-it was neither the intention of their act, nor was it necessary to secure its object. The title certainly passed by the deed to the grantee, subject to the rights of creditors or purchasers, but not liable to be questioned by strangers who have no claim, and as that was the situation of this defendant, she being neither a creditor nor a purchaser, a new trial must be granted.

JUDGE HITCHсосK dissented.

CONN v. GANO.

Where a note or bill is made payable at a certain time and place, no demand is necessary to charge the maker or acceptor.

An averment of such demand, though immaterial, must be proved.

This action was founded upon two promissory notes, in which the defendants' testator promised at a day certain to pay a sum of money to the intestate of the plaintiffs. The notes contained the words "negotiable and payable at the bank of Cincinnati."

Each count of the declaration contained an averment, that the note when due "was presented at the said bank of Cincinnati, being then and there due and pay. able according to the terms thereof for payment," and alleges non-payment. On the trial, the plaintiffs offered no evidence of this fact, and the defendants objected that without proof of the averment the plaintiffs could not recover; but the court permitted the cause to proceed, reserving the point. A verdict was found for the plaintiffs, and a motion made for a new trial on the ground of misdirection. This motion was reserved for decision here.

Este, for the defendants. Longworth, contra.

By the COURT.

The plain interpretation of a promise to pay a sum of money at a certain place upon a certain day, is, that the person making the promise will on the day be at the place with the money; if he be not there, or does not have the money there, he has not performed his promise. The right of the plaintiff to receive the money does not depend upon his making a demand. It is absolute by the very terms of the promise. If the defendant is ready at the time and place to

pay the money, and there is no person there to receive it, his promise is not broken; the duty to pay the money remains, but no action can be sustained to recover it until a subsequent personal demand be made. This is the plain justice of the case, and is in accordance with the American decisions, which we prefer to follow. It was therefore not necessary for the plaintiffs to aver a demand at the place to maintain their action on these notes.

They have, however, made this averment, and though unnecessary, it is well settled, that being made it must be proved. In an action against the drawer or endorser of a bill, it is not necessary to state that the drawee accepted it; but Chitty says, if it be stated, it must, in an action against the drawer, be proved. 459. And in page 514 it is again said, that whenever a particular presentment has been averred, it must be proved; for this reason a new trial must be granted. Judge PEASE.

I concur in the opinion of the court on the first point, but cannot on the second. The averment that the note was presented at the bank, and payment demanded, is decided to be totally immaterial as it respects the plaintiff's right to recover, and also as it respects the defence. The true distinction between an immaterial averment which it is necessary to prove, and one which it is not, I consider to be this: when the plaintiff avers in his declaration a fact, the converse of which being pleaded or proved by the defendant would be a defence to the action, then the averment ought to be proved. But if the fact averred be every way immaterial—if it form no part of the plaintiff's right to recover, and if the contrary would constitute no defence to the action, then it would be not only useless to prove it, but would be an unnecessary waste of time and money, and a trifling with the administration of justice.

Such is the averment in this case; and when no other reason can be assigned for requiring the proof of an immaterial fact, but that it is averred, I consider the reason insufficient. If the fact that it is averred be a sufficient reason in this case, why not extend it to all others? The common averment in a declaration in slander, that the plaintiff hath always sustained a good character, is really of more materiality than this; because under the general issue, and even upon default, the defendant may prove the contrary for the purpose of lessening the damages, which, so far, is a partial defence; but no lawyer will pretend that this averment of good character must be proved to sustain the action. If the averment be wholly immaterial, it is my opinion that it need not be proved, and I would overrule any authority to the contrary.

SAUNDERS v. POPE.

It is not necessary to constitute a good consideration for an assumpsit, that the party making the promise should receive any actual value or benefit from the party to whom the promise is made, if, in consequence of the transaction a loss has been sustained by such party.

The delivery of a pledge to a third person not authorised to receive it, is a good consideration for an assumpsit.

This was an action on the case, in which the jury found a verdict for the plaintiff, upon the first count in the declaration, and assessed his damages to 300,