[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 78 The objection of the defendant's counsel to proof of what was said at the time of the receipt of the money by the defendant was well taken. The writing given by the defendant to the plaintiff was, as finally held by the judge, more than a receipt, and was the only admissible evidence as to the purpose for which the money was received; and upon its construction depends the title thereto. This could not be affected by parol proof. There was no material evidence given under the ruling, and consequently the exception became nugatory.
It is insisted by the defendant's counsel that the plaintiff cannot avoid the contract on account of usury. That question does not arise in the case. If the title to the money would have passed from the plaintiff to the defendant's brothers by its delivery to the defendant, under the circumstances, had not the agreement for the loan been tainted with usury, it equally passed, however usurious that agreement might be. A party does not retain the title to money loaned by him at a usurious rate. The title to the money depends upon the construction of the defendant's agreement made with the plaintiff. This shows that the deeds were not delivered to the plaintiff to take effect as perfect instruments, either absolutely or upon condition, but for the purpose of examination by the plaintiff to ascertain whether the papers were right, *Page 79 and subject to future correction, should they be found imperfect. Such a delivery did not transfer the title of the land to the plaintiff. The papers were not operative as conveyances until the examination was made, and they were found correct, or if imperfect corrected. The facts do not bring this case within the principle of Worrall v. Munn (1 Seld., 229). The money was not delivered by the plaintiff to the defendant as agent for and as the property of his brothers, which they had the right to demand and receive from him, but to be retained by the defendant in his own hands until the examination of the papers and their completion if any alteration was found necessary. Such a delivery of the money by the plaintiff to the defendant did not change the title to the bills. They remained the property of the plaintiff. The contract for the loan remained executory, and the plaintiff could refuse to proceed to consummate it. He could reclaim the money from the defendant, and a refusal to deliver by the defendant to the plaintiff upon demand would be evidence of a conversion, which if found would support an action in favor of the plaintiff against the defendant therefor.
But this action is brought to recover the possession of the bills, and it is insisted that such an action will not lie where the subject matter is money. The authorities relied upon by the counsel, arose in the action of detinue, when that was the remedy provided by law for the recovery of personal property unlawfully detained. The cases are analogous to the action given by the Code to recover the possession of like property similarly detained, and the same principle should be applied to the latter action. Coke upon Littleton (286 b.), speaking of the writ of detinue, says: "In this writ the plaintiff shall recover the thing detained, and therefore it must be so certain as it may be known, and for that cause it lyeth not for money out of a bag or chest; and so of corn out of a sack, and the like; these cannot be known from other." This shows that money could be recovered in the action of detinue, the same as corn; that is where it could be identified. The same rule applies to all personal property, and to maintain an action *Page 80 for its recovery it must be identified so that delivery of the specific goods to which the party is entitled may be made. This may be done in any way within the power of a party. In the case of bills, by proof of the bank, denomination, date, letter, number or any other proof, showing the particular bills in question. There is nothing in the nature of bills or specie making a delivery work a change of ownership, unless delivered with that intent. The case of The Commercial Bank of Albany v.Hughes (17 Wend., 94), only decides that the title to money paid into a bank, and passed generally to the credit of the party paying, passes to the bank, and the relation of debtor and creditor is created between the parties: not so, however, when the deposit is special, and the identical money is to be kept for the party making the deposit. It is true that a party receiving money in the course of business without notice, from one intrusted with the possession by another, acquires a good title against the owner; still the former owner can maintain an action for the conversion against the party wrongfully paying it.
The only remaining question arises upon the defendant's motion for a nonsuit upon the ground that the action would not lie to recover the possession of bank bills without further identification. This objection presents the question whether the plaintiff's proof was sufficient to identify any of the bills. His daughter testified that she counted the money, that three of the bills were fiftys, and nine were tens, upon the Commercial Bank of Whitehall. There was no evidence that the defendant had in his possession any other bills of similar denomination upon that bank. It did not appear that the bank had ever issued any others of the same denomination. Had such evidence been given, perhaps the plaintiff could have given further proof of identity. As the case stood, I think the proof of identity prima facie sufficient. All that is necessary is, that the proof should be sufficient to enable the court to give judgment for the delivery of the particular thing to which the plaintiff is entitled, and if the defendant has so disposed of that thing that delivery cannot be made *Page 81 upon the execution, then the value is to be collected of the defendant in satisfaction of the judgment. My conclusion is that the judgment should be affirmed.
ALLEN, J., expressed no opinion; all the other judges concurring,
Judgment affirmed.