I think this note is void. The statute makes it an indictable misdemeanor to issue such note, and consequently the prohibition makes it a void act. The act of 1840 was passed after the transactions which led to the case of Stafford v. Wyckoff, and, therefore, that case is applicable.
Anthon then insisted that if the note was void under the act, the loan to Littell, Totten and Bodine was not affected thereby, and offered to go to the jury on that branch of the case.
*360Edmonds, C. J. There is no sufficient evidence of such' loan, and if the jury, under the testimony in this case, should return a verdict affirming such loan, it would be my duty to set it aside. The loan was to the bank on the security of their names.
Anihon contended, that as there was evidence in the case to satisfy the minds of the jury, in his judgment, that the loan was made to the defendants, and not to the insolvent bank, that he had a right to the opinion of the jury on that head. And that the mere form of the security could not control the essential character of the transaction, especially, too, where such security was declared invalid.
Edmonds, C. J. I think this course inadmissible: leta non-suit be entered. (1)
Nón-suit.
Anihon and Cone, for plaintiff. ‘
Sherwood, Bradley and Townsend, for defendants.
Upon an argument before the judge on a cage made, he considered the last ground, urged by plaintiffs’ counsel, to have been correctly taken, and •that he ought to have submitted the case to the jury. The non-suit was consequently set aside. The suit, however, proceeded no further.