Gardner v. Clark. however, to think that neither of these is the true interpretation; but that what the judge intended to say, and what the jury must have understood him to say, was, that the defendant could not insist upon payment for the barley which had been delivered, as a condition precedent to the delivery of the residue. If this is the true meaning of the language used in this portion of the charge, it was, in my judgment, obviously right. But the judge-carried his views as to the effect of the defendant's act in waiving the condition as to several of the loads to still greater and, as I think, erroneous lengths, in the subsequent parts of his charge. He was requested by the counsel to charge, that, "although the defendant had not required payment for each load so delivered, so far as the same had been delivered, yet the defendant had a right at any time, upon being ready to deliver a load and offering so to do, to demand payment for such load, and that, upon non-compliance by the plaintiff, the contract was broken on his part." This request was refused by the judge, and the ground of this refusal is shown by his proceeding to charge that, "if the said defendant intended to require payment for each load as delivered, for the barley thereafter to be delivered, and thus change the practice which he had begun with, he should have given Gardner reasonable notice that he intended to make such change, and should make demand of payment in such manner that it could have reasonably been complied with on the part of Gardner." It is impossible, I think, to sustain the position here taken by the judge. Upon what principle the omission by the defendant to insist upon his right to payment as to some of the loads of barley delivered can operate as a waiver of his right as to the residue, I am unable to perceive. There would, perhaps, be a legal difficulty in the way of its having this effect, even if so intended. A waiver, like a gift, can only operate in presenti. When intended to operate in futuro, it is at most only an agreement to waive, which, it would seem, must, like all other agreements, have a consideration. But, conceding that the defendant might, without any consideration, have Gardner v. Clark. bound himself, by agreeing in advance to waive his right to require payment for any portion of the barley when it should be delivered: how can the mere waiver of such right, as to one or more loads, amount to such an agreement? It could, at most, only afford some slight evidence that the defendant did not intend to insist upon payment in hand for the subsequent loads; but would this unexpressed intention, even if entertained, be obligatory upon him? I think not. The contract bound Gardner to have the money ready, at all times, at 'the place of delivery, to pay for each load as it should arrive; and although he might have some reason to suppose, from the delivery of several loads without requiring payment, that the defendant did not intend to insist upon payment in hand for the subsequent loads, yet this mere supposition could not release him from the positive obligation of his contract. But it was said upon the argument, that there was no evidence in the case to which the charge which the judge was requested to make could properly apply; and, hence, the judge was justified in his refusal, even if the principle embodied in the request is regarded as correct. It is true that a judge is not bound to charge upon a mere abstract proposition, not necessarily involved in the case. If, therefore, there was no evidence tending to show that Gardner had ever neglected or refused to pay for a load of barley which the defendant had actually offered and was then ready to deliver, the judge would have been under no obligation to instruct the jury as requested by the defendant's counsel. But such evidence is, I think, clearly to be found in the testimony of the defendant. He says: "I went with one load, and stopped and went to Dunham's, and asked for my pay of Dunham; Dunham said he had nothing to pay with, and I then went and sold the barley to Mr. Crouse." If this means that, when he called upon Mr. Dunham at this time, he had a load of barley there, which he was ready to deliver upon receiving payment for that load, and that all that he asked for was payment for the load he then had, it makes out the case contemplated in the request of the defendant's counsel. Whether this is the meaning of this Robinson v. The Bank of Attica. portion of the testimony, was clearly a question for the jury. My conclusion, therefore, is, that the judge erred in refusing to charge as requested, and that for this error the judgment should be reversed, and there should be a new trial with costs to abide the event. COMSTOCK, Ch. J., DAVIES, CLERKE, WRIGHT and WELLES, Js., concurred; DENIO and BACON, Js., took no part in the case. Judgment reversed, and new trial ordered. ROBINSON, Receiver, &c., v. THE. BANK OF ATTICA. Associations organized under the general banking law are within the provisions (1 R. S., 603, § 4) prohibiting any incorporated company from making any transfer or assignment in contemplation of insolvency. They are not excluded by the exception (1 R. S., 605, § 11), because, though moneyed corporations, they are, by the construction of the act authorizing their creation, not subject to the "regulations to prevent the insolvency of moneyed corporations," otherwise than as some of those regulations are expressly adopted and applied. The payment of a debt to a bona fide creditor is prohibited by the statute, equally with a general transfer of property or an assignment in trust for creditors. A transfer is in contemplation of insolvency, as well where the insolvency actually exists as where it is anticipated. A dictum to the contrary, in Haxtun v. Bishop (3 Wend., 17), disapproved. APPEAL from the Superior Court of the city of Buffalo. Action by the receiver of the Hollister Bank of Buffalo, an insolvent corporation, organized under the general banking law, to recover the value of certain promissory notes transferred to the defendant by the Hollister Bank. On the trial before the court, without jury, these facts were found: On the 28th of August, 1857, the Hollister Bank procured two drafts to be drawn upon it, payable September 3, 1857, and September 5, 1857, and, after certifying the drafts to be good, procured, Robinson v. The Bank of Attica. through the agency of the accommodation drawer, a loan of $5,000, upon the security of such drafts, from the defendant, which was also a banking association, organized under the general banking law, and doing business in the city of Buffalo. The defendant had no knowledge that the loan was procured for the benefit of the Hollister Bank. On Saturday, the 29th day of August, 1857, the Hollister Bank was insolvent, and did not resume business after that day. On Sunday morning, the Hollister Bank delivered to the drawer of the drafts before mentioned six promissory notes, which had been discounted by it, and none of which had arrived at maturity, and also $40.53 in cash, making, in the aggregate, the value of $5,000-the drawer undertaking therewith to retire the checks upon which he had procured the loan from the Bank of Attica. On Monday morning he took the money and notes to the Bank of Attica, which, after holding them for the purpose of examination, on the next morning, September 1, 1857, accepted the notes and money, and surrendered the checks to the drawer, by whom they were canceled. The Bank of Attica, when it took the notes and money, had notice, sufficient to put it upon inquiry, that they belonged to the Hollister Bank. It also had notice, on the 31st day of August, 1857, that the Hollister Bank was insolvent, and would not resume business. Proceed. ings were instituted on the 1st September, 1857, for the appoint ment of a receiver, &c., and on the next day an injunction was issued, restraining the Hollister Bank from transacting any further business, &c. The plaintiff had judgment, which having been reversed, on appeal, at general term, the plaintiff appealed to this court. John L. Talcott, for the appellant. John Ganson, for the respondent. WELLES, J. The Revised Statutes provide that it shall not be lawful for any incorporated company to make any transfer or assignment, in contemplation of the insolvency of such Robinson v. The Bank of Attica. company, to any person or persons whatever; and declare that every such transfer and assignment shall be utterly void. (1 R. S., 603, § 4.) This section belongs to title 4 of chapter 18 of part first, and in terms embraces the present case. The notes and money mentioned in the finding of facts by the court below, amounting to $5,000.01, were transferred by the Hol lister Bank to the Bank of Attica, the defendant, in anticipation of the insolvency of the former, and by the statute referred to the transfer was utterly void, provided the Hollister Bank was an incorporated company and subject to the section and title of the Revised Statutes referred to. The 11th section of the same title is as follows: "The provisions of this title shall not apply to any incorporated library or religious society; nor to any moneyed corporation which shall have been or shall be created, or whose charter shall be renewed or extended after the 1st day of January, 1828, and which shall be subject to the provisions of the 2d title of this chapter." The Hollister Bank was an association for banking purposes, formed under the act of 1838, entitled, "an act to authorize the business of banking." Although the question, whether the legislature which enacted the last mentioned statute intended to invest the banking asso. ciations to be formed under it with the attributes and qualities of corporations, has been gravely doubted by able jurists, that question should now be considered at rest in consequence of the repeated decisions of the courts holding that they are corporations. (The People v. Supervisors of Niagara county, 4 Hill, 20; Willoughby v. Comstock, 3 Id., 339; The People, ex rel. The Bank of Watertown, v. Assessors of Watertown, 1 Id., 616; Leavitt v. Blatchford, 5 Barb. S. C. R., 9, and cases there cited; S. C. on appeal, 17 N. Y. R., 521; Gillet, receiver, &c., v. Moody, 3 Comst., 479; Cuyler v. Sanford, 8 Barb. S. C. R., 225.) After such a long course of adjudication on the subject, it would not be profitable to examine the question upon the act of 1838 as an original one. The 4th section of title 4, above referred to, uses the expression "incorporated company." If the associations formed under the general banking law are |