Opinion by SCRUGHAM, J. By naming the persons to whose order the instrument is payable, the maker manifests his intention to limit its negotiability by imposing the condition of endorsement upon its first transfer. But no such intention is indicated by the designation of a fictitious or impersonal payee, for endorsement under such circumstances is manifestly impossible; and words of negotiability, when used in connection with such designations, are capable of no reasonable interpretation except as expressive of an intention that the bill shall be negotiable without endorsement; i. e., in the same manner as if it had been made payable to bearer. It was not before the Code necessary for the holder of an instrument payable to bearer, to allege or prove in an action against the maker the transfers through which he derived his title (2 Greenleaf on Ev., § 161, and cases there cited; 3 Phillips on Ev., 4 Am. Ed. 191); and it certainly is not now. The engagement is to pay to the bearer; and that the Plaintiff is such, is one of the material elements of his cause of action. That fact must, therefore, be stated in his complaint, and its statement will be a sufficient allegation of his title; for it is the fact, and not evidence of the fact, which is required to be pleaded. It is not only stated in the complaint in this action that the Plaintiff is the holder and owner of the check, but also that it was transferred and delivered to him for a valuable consideration, and that he became its owner and holder by virtue of that transfer and delivery. This cannot be true unless the drawer of the check transferred and delivered it directly to the Plaintiff, or to some other person by or through whom it was transferred to the Plaintiff; and this averment, if an allegation of a transfer and delivery by the drawer is necessary, is sufficient on demurrer within the cases of The People ex rel. Crane v. Ryder (2 Kernan, 433), and Prindle v. Caruthers (15 N. Y. R. 425). The judgment should be affirmed. All the judges concurring. Judgment affirmed. JOEL TIFFANY, Opinion by BOCKES, J. WILLIAM M. MALLORY v. THE TIOGA RAILROAD COMPANY. Evidence-Request to Charge-Nonsuit. Where, on a trial before a jury, the Judge assumes that a fact is proved, if the party desires such question to be submitted to the jury, he should so request it to be done; and not doing so, he cannot except on that account. Where there is evidence tending to prove or disprove material portions of the Plaintiff's claim or Defendant's defence, the Court can neither nonsuit the Plaintiff, nor direct a verdict for Defendant. BOCKES, J.-The Plaintiff claimed to recover in this action for transporting and distributing cross-ties, iron rails, chairs, and spikes, along the line of the Defendants' road, intended for use in its reparation. But the justice at the trial limited the right of recovery to the transportation and delivery of cross-ties only, holding that the rails, chairs, and spikes were transported and distributed under an agreement with the Plaintiff and Bostwick, that service was to be without charge, in consideration of the free use of the Defendants' road during the period of transportation. The question now is, whether the recovery by the Plaintiff for the transportation and distribution of the ties can be sustained. At the close of the evidence the Defendants' counsel requested the Court to direct a verdict for the Defendants, on the ground that the evidence was insufficient to enable the Court or jury to determine the extent or amount of Plaintiff's claim for services; and also asked the Court to rule that the Plaintiff's claim was barred by the statute of limitations. The learned judge before whom the trial was conducted properly declined compliance with these requests. The point in regard to the statute of limitations is not now urged. It seems that the services were rendered in June, July, and August, 1852, and this action was commenced July 17, 1858, less than six years from the termination of the services. Besides, the Defendants are a foreign corporation, and consequently cannot avail themselves of the statute of limitations (Olcott v. The Tioga R. R. Co., 20 N. Y. 210). Opinion by BOCKES, J. Nor could the judge have properly directed a verdict for the Defendants on the ground that the evidence was insufficient to enable the Court or jury to determine the extent or amount of the claim. There was evidence that the Plaintiff performed the services, and also evidence as to its value. The extent of the services and the amount to be allowed, therefore, were subjects for the consideration of the jury. In such case the Court can neither nonsuit the Plaintiff nor direct a verdict for the Defendants (Van Rensselaer v. Jewett, 2 N. Y. 135). There was evidence given, showing that the transportation of the rails, chairs, and spikes was provided for in a lease of the road to Bostwick and the Plaintiff, wherein it was agreed that the transportation of those articles was to be without charge, in consideration of the use of the road during the period of transportation. The contract of lease was evidenced by a letter from the presiident of the road to Bostwick and Mallory, and an endorsement thereon by Bostwick. The Defendants' counsel offered to prove the term of the lease by parol. This was excluded on the ground that the agreement appeared to be in writing. The letter and the endorsement thereon should be read together. The letter had been put in evidence and carried with it the endorsement, which, in the absence of any explanatory proof, must be deemed to constitute a part of the paper on which it was written; especially as it related in direct terms thereto, bore the same date, and purported to be a material and substantial part of it. Read together, the papers evidenced a perfect contract, the terms of which of course could not be contradicted or varied by parol proof. The offer was, therefore, properly overruled. The purpose of the evidence offered doubtless was, although not stated, to show that it was agreed that the ties, as well as the rails, chairs, and spikes, were to be transported without charge. If so, it was an attempt to introduce into the written contract a new condition changing its import and effect in a very material sense-hence inadmissible. In regard to the Defendants' set-off, the learned judge held Opinion by BOCKES, J. that the evidence showed that the claim was settled, or if not settled, that it was barred by the statute of limitations. There was evidence tending to prove, if not definitely and clearly proving, that the Defendants' claim interposed as a set-off was settled. The judge assumed, when called upon to speak on that subject, that the fact stood proved. If dissatisfied with such assumption, the party should have requested to have that question submitted to the jury. In the absence of such request, the party will be deemed to have acquiesced in the assumption of fact stated by the Court (Barnes v. Perine, 12 N. Y. 18, 23; The People v. Cook, 8 N. Y. 78; Dows v. Rush, 28 Barb. 157, 180; Nolton v. Moses, 3 Barb. 31; Winchell v. Hicks, 18 N. Y. 558). If dissatisfied with the conclusion of fact stated by the judge, the party should ask to have the question submitted to the jury. Without such request, an exception to the ruling of the Court only brings up the question of law based on his assumption of fact. As the case is here presented, it must be deemed to be an accepted fact, as stated by the judge, that the Defendants' claim for set-off had been settled; hence it could not be allowed in this action. I will add, however, that the facts proved fully justified the conclusion expressed by the learned judge on the trial, and it is equally clear that the claim was barred by the statute of limitations. But the views above expressed render further examination of the case unnecessary. The judgment should be affirmed. JOEL TIFFANY, State Reporter. Opinion by PARKER, J. ABRAHAM B. VANBENTHUYSEN, APPELLANT, v. MILTON SAWYER AND CHARLES H. FAXON, RESPONDENTS. Tax-Sales of Land-Invalid if Information refused. Where land has been sold for taxes, and the public officer refuses to do his duty in giving the party the necessary information to enable him to redeem— and thereby redemption is prevented-the deed of such officer will convey no title to the purchaser. But if such officer has already given the necessary information by furnishing a bill of the amount to be paid, his refusal to furnish a second bill is not of itself evidence of official neglect. PARKER, J.-This is an action to recover damages for an alleged wrongful entry upon, and carrying away timber from, lot No. 72, in Hoffman's township, in the county of Essex. Upon the trial, the verdict was for the Defendants, upon which judgment was rendered. The Plaintiff appealed to the General Term, when the judgment was affirmed, and the case is brought here by appeal from the judgment thereupon entered. The Plaintiff claims title to the lot, which was a wild lot, under a tax sale, made by the treasurer of the county of Essex, on the 6th of December, 1853. The Defendants dispute the title, on the ground that the owner of the lot, before the time for redemption expired, applied at the comptroller's office for a statement of the amount necessary to be paid to redeem the lot in question, and was then and there ready and willing and offered to pay such amount, but was refused such statement, and was thereby prevented from redeeming the premises; and claim that the deed subsequently given, pursuant to the sale, was therefore invalid, and conveyed no title to the Plaintiff. Upon the trial, Schoonmaker, a witness on the part of the Defendants, testified that he went to the comptroller's office, on behalf of, and by direction of Bergh (the owner of the lot), to pay taxes. He says: "I went to the comptroller's office, and found a man there, and told him I wanted to pay taxes on No. 72, |