#### Abijah Mann, Jr. plaintiff and respondent, *vs.*Lewis Curtis, executor &c. of Joseph D. Beers, defendant and appellant.

1. Neither hills of exchange, nor a guaranty thereof, are covered or will pass by, an assignment of a mere guaranty of the *certificates*of a banking company, in payment of which such bills are drawn.

2. A schedule referred to in an assignment is so far at least a part of such assignment as to estop the assignor from denying the averments therein contained, and when such schedule shows that some years before the assignment (of which it is a part) was executed, the holder of certain bills of exchange had surrendered them to the drawers, and taken other obligations in lieu thereof, neither such bills, nor a guaranty of their payment, executed by a third person, will pass by such assignment; although it purports to transfer such bills and guaranty.

(Before Barbour, McCunn and Jones, JJ.)

Heard March 2, 1868;

decided April 16, 1868.

Appeal by the defendant from a judgment entered upon the report of a referee.

This action was brought to recover from the defendant, as executor of the estate of Joseph D. Beers, $10,000, with interest, alleged in the complaint to have been advanced by the plaintiff to Beers under and in pursuance of an agreement between them that the said $10,000, together with a similar sum to be paid by Beers, should be *134emended for their joint benefit by the latter in the purchase of certain bills of exchange which had been drawn on England by the North American Trust and Banking Company and guarantied by Beers, and upon the further agreement on the part of Beers, that, in case such bills should not be collected from the company, he would repay to the plaintiff the said $10,000, with interest thereon..

The allegations of the complaint, were in substance as follows:

That the defendant’s testator, Joseph D. Beers, was, in his lifetime, indebted to one ¥m. Vyse, in a sum exceeding $100,000, upon a guaranty, under his hand and seal, that certain bills of exchange drawn by the North American Trust arid Banking Company, for about ¿615,000 sterling, on Palmers, McEIllop, Dent & Co. of London, should be accepted, but which were returned protested for non-acceptance to Vyse. That, Beers being insolvent and Vyse having died, the personal representatives of Vyse offered to sell Beers their claim against said company, thus guaranteed by him, for $20,000 ; and that Beers, not being able to raise that amount, agreed with the plaintiff that if the plaintiff would advance to him, (Beers,) the sum of $10,000, he would purchase said bills of exchange and claim with said guaranty, and assign one half interest therein to said plaintiff and one half of said guaranty; said one half of said guaranty to be collateral security for the payment to the plaintiff of said $10,000 in case the same was not realized from said company; and that if said $10,000 so advanced by the plaintiff was not realized by him from said company, Beers would pay said sum with interest. That on the 27th December, 1847, the plaintiff did advance to said Beers said sum of $10,000, with which, and $10,000 added by himself, he purchased from Vyse’s personal representatives said bills of "exchange and guaranty, and thereupon executed to Charles Eincke, in trust for 'the plaintiff, an assignment of an undivided one half interest in said bills of exchange or claim against said company, together with said guaranty. *135That on the 1st day of August, 1865, Fincke assigned such undivided half interest in said claim and guaranty to the plaintiff. That, in the year 1848, the plaintiff instituted proceedings in Beers’ name against The Horth American Trust and Banking Company to collect the claim, but without success, and that the assets of said company are exhausted. That no part of the claim against the company has ever been paid either to the plaintiff or Beers; and that no part of the $10,000, advanced by the plaintiff to Beers, has ever been paid, but the same remains justly due and payable, with interest from December 27, 1847.

The defendant’s' answer put in issue all the allegations of the complaint in regard to this transaction, and set up the statute of limitations as an affirmative defense.

The action was referred to Edward Fitch, Esq. as sole referee, to hear and determine, by order entered 25th January, 1866.

On the trial it appeared in evidence that in 1842, William Vyse held certain bills of exchange, drawn upon London, (Palmers, McKillop, Dent & Co.,) by The Horth American Trust and Banking Company, and guarantied by Joseph D. Beers under his hand and seal, which had been protested and remained unpaid; the drawers having failed, and their assets being in the hands of a receiver.

On or previous to the 21st of January, 1847, Beers purchased all the claims which Vyse had at the time of his decease, against the company; the plaintiff furnishing to Beers one half of the purchase price; and thereupon an assignment of such claims was made to Beers by the representative of Vyse. On the same day Beers assigned to Charles Fincke, for the benefit of the plaintiff, (who, subsequently, took an assignment from Fincke,) one half of all such claims, together with the guaranty of Joseph D. Beers to said Vyse of the payment of the *certificates, of- the said company,*which Vyse held or had a right to hold. The assignment also declares that the claims covered thereby *136are, with the evidences thereof, and a part of the guaran ties and collateral securities held therefor, principally mentioned and specified in a schedule thereunto annexed.

The schedule referred to in the assignment bears date, January 3, 1842, and is in the form of a stated account between Vyse and the company. In it the company is debited with ten several promissory notes and sundry loans of money, and it also contains this charge: “ 1840, Dec. 15. Paid U. Am. Tr. & Bk’g Company for exchange on England, to the amount, in all, of ¿210,000 sterling, in five bills of ¿22Ó00 each, $46,777.77. Damages on protest of the bills. Interest afterwards.” It also declares that after the bills of exchange were dishonored, the president of the company urged Mr. Vyse to give them up and take as security the notes of the company, known as the Yates Trust, and, at the same time, in the same way, and from like representations, Mr. Vyse was induced to give up certain bonds and mortgages held by him as security for loans of money; and that the only security then held by him for the $46,777.77, with damages and interest, and for' such loans, were certain notes of the Yates Trust. There was no evidence in the case that Vyse held, at the time of his death, any claim against the company except those covered by that assignment to Beers.

After the execution of those assignments, an attempt was made to collect the claims; but the company proved to be wholly insolvent, and all' efforts to collect ceased in June, 1849.

The referee found, as a conclusion of law, that the plaintiff was entitled to recover against the defendant, as executor of the said Joseph D. Beers, the sum of $10,000 and interest, amounting in all to $23,961.10,

*Charles T. Sanford,*for the appellant.

*A. Mann, Jr.*respondent in person.

*137By the Court, Barbour, J.

The evidence in the case, as it now stands, is wholly insufficient to sustain the finding of the referee, that the alleged agreement between Beers and the plaintiff, touching the purchase of the bills in question, was made. But such finding is by no means important, inasmuch as an action based upon the advance of moneys under such agreement is barred by the statute of limitations, and the plaintiff’s claim to recover must, consequently, rest solely upon his ownership of the bills of exchange and the sealed guaranty of Mr. Beers.

It appears quite clear that neither the bills of exchange in question, nor Beers’ guaranty thereof, passed to the plaintiff by the assignment to him. Certainly such guaranty of bills is not covered by the assignment of Beers’ guaranty of the *certificates*of the company. So, to, the schedule, which must be considered a part and portion of the assignment, in so far, at least, as to estop Mr. Beers from denying the averments therein contained, *(see Coke Litt.*352, *a, b; Comyn’s Dig. Estoppel E,*2; *Sinclair*v. *Jackson,*8 *Cowen,*586,) shows that more than five years before such assignment was made, Yyse had surrendered to the company the bills of exchange, being the principal debt for which, alone, Beers was liable as guarantor, and took in lieu thereof other obligations of the company, called Yates Trust notes. It is impossible to construe the statement in the schedule that Yyse was urged by the president to give up the bills and take as security the notes of the company, known as the Yates Trust notes, together with the succeeding declaration that the *only*security then held by him for the sum covered by the bills of exchange was certain notes of the Yates Trust, in such a manner as to avoid this conclusion; although it may be evident, from the testimony of the plaintiff, that both he and Beers supposed, when such assignments were executed, that the bills of exchange, together with such guaranty, still belonged to the estate of Yyse, and were covered by the assignment.

Indeed, it requires a careful examination of the entire *138schedule in order to ascertain the true state of the claim. But, upon making such examination, it will be found quite apparent that such schedule, (which is drawn in a very inartificial manner,) was designed to show, not merely the then state of the indebtedness of the company to Vyse, but the origin thereof; or, in other words, to exhibit all the transactions between them touching the claims. Certainly, the claims of Yyse against the company then consisted of ninety-three notes of the Yates Trust, and the ten indorsed notes set forth in the schedule, and that he then held no other securities of the company whatever.

The judgment, so far as relates to this matter should, therfore, be reversed, with costs, and a new trial ordered.