X, ^*! fc Z^taftfQffJKIJ?. THE UNIVERSITY OF CALIFORNIA SANTA BARBARA PRESENTED BY MONROE'S DIGEST OF STANDARD DECISIONS OF THE COURTS OF LAST RESORT OF THE United States, Canada, England, Scotland and Ireland, UPON QUESTIONS IN LAW AND EQUITY RELATING TO BANKS, BANKING, COMMERCE, TRADE AND MANUFACTURING. EDITED BY JAMES H. MONROE, J \> Counsellor-at-Law. The Courts have held, that " There is no protection for the rash against the consequences of their imprudent contracts." Ignorance of the law is not accepted as an excuse for errors or omissions. PRICE, FIVE DOLLARS. COPYRIGHT 1897, BY J. S. OGILVIK PUBLISHING COMPANY. NEW YORK : J. S. OGILVIE PUBLISHING COMPANY, 57 ROSE STREET. PREFACE, The author has sought to form a comprehensive and concise compilation of the standard decisions of the Courts of final resort relating to questions daily arising in the busi- ness relation of all branches of human endeavor. All busi- ness men can refer to these decisions with confidence as a guide in all their respective dealings. The precise manner in which these important decisions are expressed, enables the reader to gain a clear and com- prehensive understanding and application of the imperative rules of law that are made to govern the business operations of man, in the various departments of human effort. They also enable those acting under them, not only to protect and promote their own personal interests, but they will aid greatly in diminishing the perpetration of fraudulent trans- actions, by reducing the opportunities for committing them. Everyone who issues or receives checks, drafts and prom- issory notes, or make contracts of any kind, will find that the Digest is well calculated for aiding them to protect their rights and prevent wrong doing. A ready and trustworthy means of acquiring a knowledge of the rules and regulations established by law, will not only frequently prevent present expensive litigation, but will also enable one to create a practical basis of action, upon which your attorneys can more effectively defend your rights and promote your interests. If you fail to manage your business affairs in conformity with these established rules and regula- tions, to which you are amenable always, your lawyer, let him be ever so capable and energetic, cannot maintain your rights or promote those interests which you may have neglected or endangered, either through carelessness or a want of legal information. JAMES H. MONROE. DECISIONS. ABATEMENT AND REVIVAL. 1. The revival of an action does not necessarily carry with it the whole of the prior right of action. Cregin v. Brooklyn, C. T. R. R. Co. 83 N. Y. 595. 2. An action abates when it is defeated and the legal power to con- tinue it has terminated. Frost v. Kopp, Civil Procedure, New York City. ACCEPTANCE. 3. Verbal acceptance of an order drawn on a party is binding on him, and his statement, when presented with the order, that he could not then pay it, but would pay the same, is equivalent to an accept- ance. St. Louis National Stock Yards v. O'Reilly, et aZ., 85 111. 546. 4. An acceptance, to be binding, must in every respect meet and correspond with the offer made ; neither falling within nor going be- yond the terms proposed, but exactly meeting them at all points, and closing with them as they stand. A proposal to accept an offer on terms varying from those proposed amounts to a rejection of the offer, and a substitution of a counter proposition, which cannot become a con- tract until assented to by the first proposer. The original offer loses its vitality, and is no longer pending between the parties, and becomes an open proposition again only when renewed by the party who first made it. The party submitting a counter proposition, cannot, without the consent of the first proposer, withdraw or abandon the same, and then accept the original offer which he has once rejected. Fox v. Turner, I Bradwell's III. App. Rpts. 153. 5. An acceptance without conditions, limitations, or provisions, or otherwise changing the terms of the offer, is binding as soon as the ac- ceptance letter is mailed. Taylor v. Merchants' Fire Ins. Co., 9 How. U. S. 390 ; Hutchinson v. Bldkeman, 3 Met. Ky. 80. 6. An offer made by mail may be revoked by telegraph, by mes- senger, or in any other way, provided the notice of withdrawal be con- veyed in time, i. e., before the party has mailed his letter accepting the offer. Ibid. (5) 6 MONROE'S DIGEST 7. Any qualification of, or departure from, the terms in which the offer is made, invalidates the offer, unless the same be agreed to by the person who made it. Gleason v. Hanshaw, 4 Wheat. U. S. 225. 8. Acceptance of a lesser sum does not. ordinarily, bar a demand for a greater. White v. Kuntz, 107 N. Y. 518. 9. The acceptee can no more overtake and countermand by tele- graph his letter mailed, than he can bis words of acceptance, after they have issued from his lips on their way to the hearer. Hallock v. Conn. Ins. Co., 2 Dutch. 281, per Vredenburgh, J., N. J. 10. Where an offer is made between persons present, it is, in- ordinary cases, deemed to be revoked, unless accepted before the parties- separate. Mactier v. Frith, 6 Wend. N. Y. 103 ; Averill v. Hedge T 12 Conn. 424. 11. When an offer is made by mail, it is presumed to continue until the person to whom it is made has a reasonable time in which to accept or reject it. This, it is understood in mercantile cases, means by re- turn of mail. Dunlop v. Higgins, 1 H. of L. Eng. 381 ; Averill v. Hedge, 12 Conn. 424. 12. In many cases the reasonable time will depend upon the cir- cumstances and nature of the business. Loring v. City of Boston, Mete. Mass. 409 ; Peru v. Turner, 1 Fairf. Me. 185. 13. In some cases the nature of the offer requires no letter of ac- ceptance of the terms offered, is necessary in order to create a con- tract, and the person receiving the offer may accept simply by acting upon it without communicating with the offerer. Lungstrass v. Ger- man Ins. Co., 48 Mo. 201. 14. As were offers of reward for the detection of offenders, or the recovery of property and the like, and orders for goods. Freeman v. City of Boston, 5 Mete. Mass. 56 ; Loring v. City of Boston, T Mete. Mass. 409; Fitch v. Snedaker, 38 N. Y. 248; Williams v. Carivardine, 4 Barn, and Ad. Eng. 621 ; Thomson v. James, 18 Dutch. Eng. 1 ; Cook v. Ludlow, 5 Bos. and P. 2 N. R. Eng. 119. 15. So also, wherever it is necessary for a party to express his dis- sent, if he does not agree to a proposition, and he makes no reply, hi* assent can be presumed. 1 Statute on Cont. Eng. 444. 16. The rules of law in contracts made by mail are applicable to those made by telegraph. Trevor v. Wood, 36 N. Y. 307 ; Duble v. Balls, 38 Tex. 312 ; Wells v. Milwaukee, Etc., R. R. Co., 3 Wis. 605 - r Schonberg v. Cheney, 3 Hun, N. Y. 617. 17. Where an order for any article, such as lottery tickets, was sent from a state where the sale of such tickets are prohibited by law to another state, where the sale of such tickets was lawful, and where the assent was given, and not in that where it was received, assent i binding. Mclntyre v. Parks, 3 Mete. Mass. 207 ; Newcomb v. De~ Roos, 2 El. Eng. 271 ; Waldron v. Michings, 3 Daly N. Y. 288. OF STANDAKD DECISIONS. ACCOMMODATION. 18. The fact that the drawer presents the draft to the payee, with the acceptance of the drawees on it, is out of the usual course of busi- ness, and a circumstance indicating to the payee the accommodation character of the acceptance. Bloom v. Helm, 53 Miss. 21. ACCOUNT STATED. 19. It seems that to give to an account delivered the force of an account stated, because of silence on the part of the party receiving it, the circumstances must be such as to justify an inference of assent, upon his part, to its correctness. Where he has disclaimed all liability upon the account, he is not bound to examine the items, upon its de- livery to him, and his omission to object will not be taken as an ad- mission of their correctness, and is not prima facie proof of the account. Guernsey v. Bexford, 18 Sickels, N. Y. 631. 20. The mere rendering of an account does not make it an account stated, and an omission to object to it raises only a presumption of assent, which may be rebutted by circumstances tending to a contrary inference. Ibid. 21. An account stated is presumptive evidence only of the bal- ance admitted to be due, and may be corrected for fraud or mistake. On the settlement of accounts, the parties may, by agreement, limit the time within which claim for the correction of mistakes or omissions shall be made ; and in such case, evidence of an omitted demand may be excluded, unless proof be made of claim for its allowance within the time agreed upon by the parties. Vandeveer v. Statesir, Adm>r, 39 N. J. Law, 593. 22. For a period of two years A. kept an account with a bank, for money loaned, checks paid, and credits for deposits and payments ; the bank during the time making monthly statements, striking the balance due each month, which was carried forward and charged against A. Held, that the monthly balances were not distinct settle- ments, but that the whole constituted a running account, and was, in effect, but one transaction. Pickett, et al. v. Merchants' Nat. Bank of Memphis, et al., 32 Ark. 346. 23. An account stated can only be opened where the party object- ing shows clearly that he has been misled by fraud, mistake or mani- fest error. Harley v. Eleventh Ward Nafl Bank, 76 N. Y. 618. ADMINISTRATORS. 24. The written acknowledgment of a debt by an administrator will not bind the succession if such debt does not really exist. An ad- ministrator cannot avail of any defect in a legal proceeding caused by his fault. Succession of Margaret McAuley, 29 La. 33. S MONROE'S DIGEST ADMISSIONS AND DECLARATIONS. 25. Declarations of assignor for benefit of creditors made after de- livery of possession under assignment, not competent against the as- signee. Coyne v. Weaver, 84 N. Y. 386. 26. One joint debtor cannot bind another by his statements or ad- missions unless he is the agent or in some way the representative of the other and authorized to speak for him ; the mere fact of joint lia- bility does not give the authority. Wallis v. Randall, 81 N. Y. 164. 27. The title of the assignee of a non -negotiable promissory note cannot be affected by declarations of the assignor, made after the as- signment. Van Gelder v. Van Gelder, 81 N. Y. 625. 28. The effect of the admissions of a party as evidence is not de- stroyed by proof if otherwise uncontradicted, contrary to the admis- sions, but they raise a question of fact for a jury. Greenwood v. Schumacher (Mem.) 82 N. Y. 614. ADVICE OF COUNSEL. 29. Where a party, in good faith, consults with a licensed attorney, and acts upon his advice in making a complaint for the arrest of an- other, he may show that fact in defence, and it is not incumbent on him to go further and show that such attorney was a man learned and skilled in his profession. Home v. Sullivan, 83 111. 30. 30. A party seeking the advice of counsel as to commencing a criminal prosecution must act in good faith and without gross negli- gence, and not withhold any information with an intent to procure an opinion that might operate to shelter and protect him against a suit. 31. If a party culpably or negligentlj- withholds from counsel any material fact, the advice will not protect him. But where the counsel advised with is already conversant with a material fact, by being an attorney of the party in a prior suit, it will not be necessary for the party to give him information of it. He may, in such case, presume the counsel has knowledge as to such fact, without being chargeable with bad faith. Per Breese, J., Brown v. Smith, 83 111. 291. AGENTS. 32. Where an agent to loan money takes insufficient security, the principal is not bound, at his peril, to accept and discharge the agent, or to reject the security and look only to the responsibility of the agent. The principal, in such case, may take the security, and still hold the agent bound for any deficiency which, after due diligence, he suffers on it. Guernsey et al. v. Rexford, Adm. Apllt, 18 Sickels, N. Y. 631. 33. In an action for liquors sold and delivered, to which the de- fence was that the goods were sold to a third person, there was evi- dence that the defendant told the plaintiff's agent that he had bought OP STANDARD DECISIONS. 9 a billiard-saloon, and was going to put the third person in to run the place ; that the latter would want some liquors and he wished some might be sent, and ordered the liquors ; that the third person in fact ran the place and appeared to do all the business there ; there was also evidence, admitted under the defendant's exception, that after- wards the third person told the agent that the defendant had given authority to buy stock for the saloon, and asked the agent to write at once to the plaintiff to hurry up the liquors previously ordered ; that the agent thereupon wrote a letter containing a copy of the order which he had previously received from the defendant, in which the de- fendant's name appeared as the person ordering the goods, and the letter was produced and admitted in evidence, although it had not been read by the third person. Held, that there was sufficient evi- dence that the third person was the agent of the defendant, and that the letter was admissible in evidence. Lozier v. Crofts, 123 Mass. 480. 34. Persons who deal with an agent before notice of the recall of his powers are not affected by the recall. Hatch v. Coddington, 95 U. S. 48. 35. B., a broker, advised A. to sell certain unregistered bonds and buy certain other bonds. A. in reply, by letter, said, " I am most anxious to get my money in registered bonds," authorized B. to sell the bonds then held by B. for him, " and invest the amount in the best paying and surest bonds that you know of." " As these bonds are all I possess, I am naturally always anxious about them, for the reason that, if lost or stolen, I could recover nothing. You will please invest the results of the sale in the I. bonds (the ones recommended), or any sure road." " I want registered bonds of which I will have no trouble in drawing the interest." " I shall be under many obligations if you will kindly make such sale and purchases of bonds as your good sense dictates." It was agreed that the bonds referred to by B. were first- mortgage bonds. B. in fact bought some first-mortgage and some sec- ond-mortgage bonds, all of which were unregistered. Held, that, if he acted in good faith, it was within the scope of the authority conferred upon him by the letter of A. Matthews v. Fuller, 123 Mass. 446. 36. Agent will not in equity be permitted to profit by his negli- gence toward his principal. Mitchell v. Aten, 37 Kan. 33. 37. Where the authority of the agent is left to* be inferred by the public from powers usually exercised by the agent, it is enough if the transaction in question involves precisely the same general powers, though applied to a new subject-matter. Merchants' Bank v. State Bank, 10 Wall. U. S. 604. 38. Thus, if in the case of a bank having power by its charter to buy and sell exchange coin and bullion, its cashier has habitual!}', with the knowledge of the bank, dealt with the public as authorized to buy and sell exchange, then the power to buy and sell coin also (the right to do both being conferred by the same clause of the charter), may be inferred by a jury. Ibid. 39. The act of an unauthorized agent only becomes the act of the principal after ratification upon full knowledge, so far as the interven- ing rights of third persons are concerned. Schnepel v. Mellen, 3 Mont. 118. 10 MONROE'S DIGEST 40. One cannot act as agent for both seller and purchaser, unless both know of and assent to his undertaking such agency, and receiving commissions from both. Whether such double agency, even with con- sent of both principals, is consistent with public policy, is not here de- cided. Meyer, et al. v. Hanchett, 43 Wis. 246. 41. A principal who employs an agent to do a legal thing, is not liable in damages for any illegal act of the agent done in the execution, of the mandate, to which the principal was not accessory, or privy. Andreas Richoux v. Mayer Bros., 29 La. 828. 42. It is a general rule, of almost universal application that, where a person acts by an agent, the act is his, and not that of the agent. Where the agent does not disclose the name of his principal in making a contract, the other party may, when he learns it, hold him respon- sible for its performance, and the principal may, on showing the agency r claim and enforce the contract, precisely as if entered into by himself, Baher v. Garvey, 83 111. 184. 43. The admission of the alleged agent that he is authorized to represent a third person in a suit, does not prove the agency. The authority to represent a defendant in a suit must be shown expressly t or by irresistible implication. Mrs. Marie E. Dawson v. Marie Lan- dreaux, 29 La. 363. 44. The principal is bound by any contract made by his agent which is necessary to carry out the objects of the agency ; and no con- fidential limitation of the mandate can operate to the prejudice of any innocent third person. E. H. Farrar v. Stephen Duncan, 29 La. 126. 45. Where an agent has fraudulently sold his principal's property,, and embezzled its proceeds, and the principal afterward accepts from the agent something in compensation for the embezzled proceeds, he thereby ratifies the sale made by the agent, and estops himself from any recourse against the innocent purchaser of his property. R. N. Ogden v. A. Marchoud, 29 La. 61. 46. An action cannot be maintained against an agent on a contract executed by him in behalf of his principal, unless it contains apt words to charge him personally, even though he acts without author^ ity or in excess of authority ; but he may become personally liable on a contract containing apt words to bind him, and then the words de- scriptive of his agency will be rejected as surplusage. Hancock v. Yunker, et al., 83 111. 208. 47. Where a principal has dealt with a merchant through an agent acting under a written power of attorney, the merchant may prove by parol the correctness of his account, and any acknowledgment of its correctness, or any ratification of it by the principal, even if the agent has transgressed his mandate, or there are charges in the account which could not be legally enforced. Ratification by the principal of the unauthorized acts of an agent makes those acts binding on the principal. A power of attorney sufficiently comprehensive to authorize the agent to manage a plantation, and disburse the proceeds of its- crops, will justify the factor who sells the crops to pay out their pro- ceeds on the orders of the agent. G. W. Sentell & Co., in liquidation v. Mrs. M. O. Kennedy and Husband, 29. La. 679. 48. The good faith of the agent does not exonerate him from liabil- OF STANDARD DECISIONS. 11 ity to his principal, if be has been in fact negligent, or has disregarded orders. Bank of Owensboro v. Western Bank, 13 Bush, Ky. 526. 49. A member of a copartnership, after the dissolution, has no agency growing out of the former partnership relation to create or to- perpetuate a liability of his late copartner for partnership indebted- ness, as against the operation of the statute of limitations. Tate v. Clements, 16 Fla. 339. 50. Where bonds are delivered to an attorn ey-at-law and business agent, not a dealer in bonds, for the purpose that he should collect the amount thereof from the county in money or new bonds, or in both, but, in violation of his duty, he sells said bonds to a third person, such sale is void. Hannon v. Houston, 18 Kan. 561. 51. An agent of an undisclosed principal may be treated as the principal. Welch v. Goodwin, 123 Mass. 71. 52. Authority by a principal to an agent to invest his money, and look after his business generally, will not enable'the agent to sell hisr principal's property, even such as may be acquired as the result of the investment. Smith, et al. v. Stephens'on, et al., 45 Iowa, 645. 53. Notice to an agent bound in the discharge of his duty to act upon it and to communicate it to his principal, is notice to the princi- pal. Philadelphia v. Lockhardt, 73 Pa. 211. 54. A railroad corporation conferred upon its president, by a by- law, authority to act as " business and financial agent " of the corpo- ration. Thereafter such officer executed, under the corporate seal, a mortgage upon a locomotive belonging to the corporation, to secure a debt of the corporation. Held, that the authority of the president was conQned to the ordinary business of the corporation ; that the- execution of the mortgage was without the scope of his authority, and that such mortgage was not a lien upon the property in question. Luse v. Isthmus Transit Railway Co., 6 Or. 125. 55. The general rule is that the clerks of an agent are not agents of the principal. Hope v. Dixon, 22 Grant's Ch., Ontario, 439. 56. Payments received by one knowing the agent to be unauthor- ized to make them, may be recovered by the principal as money wrong- fully had and received. Demarest v. Inhabitants of New Barbadoes, 40 N. J. Law, 604. 57. Where the acts of the agent will bind the principal, where his representations, declarations and admissions respecting the subject matter will bind the principal, when made at the same time and con- stituting a part of the res gestse. Coyle v. B. & 0. E. R. Co., 11 W. Va. 94. 58. An agent having special authority to adjust a particular loss cannot, by virtue thereof, adjust a different loss, and whatever he may do with reference to the different loss cannot affect the principal. To find the principal, it must be shown by competent evidence that the agent acted within the scope of his authority. Hartford Fire Ins. Co. v. Smith, et al., 3 Colo. 422. v 59. The employment of an agent by the principal to sell land need not be in writing, but the agent may recover for services rendered in effecting the sale, by virtue of a verbal contract. Watson v. Bright- well, 60 Ga. 212. 60. Money borrowed by the agent on the credit of the principal. 12 MONROE'S DIGEST without authority, goes into the principal's business without the latter's knowledge, and the principal has the benefit thereof, yet is not the principal liable therefor to the person of whom it was borrowed, in the absence of a promise to pay. Spooner v. Thompson and wife, 48 Vt. 259. 61. Authority to make a contract for another is not sufficient to Authorize its cancellation or surrender. Stillweil v. Mut. Ins. Co., 72 N. Y. App. 385 ; also, Duryee v. Lester, 75 N. Y. 442. 62. One who constitutes another his agent, with full power to manage his mercantile house and to do all acts appertaining to his business, makes himself liable for the value of all goods purchased by the agent in the line of that business. Schmidt and Zeigler v. Sandal, *t al., 30 La. 353. 63. Held that the general agent in Canada of a foreign company must be regarded in the same light as the general agent at the head office in the foreign country. Campbell v. National Life Ins. Co., 24 Upper Canada Com. Pleas Rpts. 133. 64. Notice to the agent is notice to the principal, if the agent f his authority, con- verts property of a third party to his own use, the principal is liable, though he never authorized or ratified the wrong. Veitinger v. Wink- ler, 8 Mo. App. 562. 95. The state has such a title or interest in a draft endorsed to the State Treasurer and delivered into his office by a County Treasurer for payment of taxes due the state, that an action may be maintained in the name of the people for a conversion thereof. A clerk in the office of the State Treasurer without authority endorsed a number of such drafts and negotiated them. Defendant took them from the endorsees, collected the money from and surrendered them to the drawees. Held, that defendant was liable to the state for a conversion of the drafts ; that it could not claim an exemption on the ground that it took them in good faith solely as agent and in the course of a public employ- ment. 96. It seems that the State Treasurer may delegate the power to endorse such drafts to a clerk in his office ; it is not an act involving the exercise of judgment or discretion and it is not one of the official duties presented by statute which must be performed by the Treasurer in person. Also held, that the state was not estopped by a finding that the ti'easurer might by ordinary care, have discovered and prevented the fraudulent acts of the clerk in endorsing and diverting the drafts. Two drafts which came into the treasurer's office in the same manner as the other were endorsed in blank by the deputy treasurer who had authority, and were delivered to the clerk for deposit in one of the legally designated deposit banks. The clerk filled up the blanks in the endorsement with the name of the cashier of a firm of private bankers and delivered them to that firm, defendant took and collected them. Held, that defendant was not liable for conversion of them ; that the drafts were not received and were not to be regarded as money in the hands of the treasurer, and he was not bound to place them in the de- posit banks but could collect them in any manner he chose ; and that therefore the fact that they were in the hands of private bankers was not such notice to defendant that they had been wrongfully diverted as to charge it with bad faith in dealing with them. People v. Bank of North America, 15 N. Y. 547. 91. Without special authority, an agent can only receive payment of the debt due his principal in the legal currency of the country, or in bills which pass as money at their par value by the common consent. Ibid. 2 18 KONKOE'S DIGEST 98. The value of goods sold by a commission merchant contrary to instructions of his principal may be recovered under the common count for goods sold and delivered. Woodward v. Suydam, 11 Ohio, 361 ; Newman v. McGregor, 5 Ohio, 349 ; 7 Johns, N. Y. 132 ; 12 Wend. N. Y. 38. 99. The agent is not bound to account to the principal until the time fixed by the terms of the agency or a demand by the principal. Commencement of suit is sufficient demand. Leake v. Sutherland, 25 Ark. 219. Powers of agent. Anderson v. State, 22 Ohio State, 305 ; Fat-man v. Leet, 41 Ind. 135; Butler v. Maples, 9 Wall. 766. 100. The provision of the act of Congress exempting United States bonds, etc., from taxation, under state authority, is complied with by exempting the bonds as issued ; and a deduction of their par value in- stead of their market value from the personal estate is proper. People Exrel Ins. Co. v. Conirs, 76 N. Y. 65. 101. Where a party to a negotiable instrument intrusts it to an- other for use as such with blanks not filled, it carries on its face an im- plied authority to complete it by filling them, but not to vary or alter its material terms by erasing what is written or printed as a part thereof, nor to pervent its scope or meaning by filling the blanks with stipulations repugnant to what was plainly and clearly expressed in the instrument. Angle v. Northwestern Mutual Life Ins. Co., 92 U. S. 330. 102. It is a principal of universal application, that an unauthorized material alteration of a written instrument renders it void. Ibid. 103. An agent or attorney, unless specially authorized, cannot bind his principal by a submission to arbitration. McPherson v. Cox, 86 N. Y. 472. 104. Where a principal has executed and deposited with his agent negotiable obligations to be issued by the latter in certain contingencies which do not occur and the agent refuses to return them on demand, an action in equity may be maintained by the principal against the agent to compel a surrender of the obligations and for damages arising from the detention or in case a surrender cannot be made for the value of the instruments as valid obligations. West R. R. Go. v. Bayne, 75 N. Y. 1. 105. A simple contract, executed by an authorized agent in his own name, as agent, is binding upon his principal. Hill v. Miller, 76 N. Y. 32. 106. The government is not bound by the act or declaration of its agent, unless it manifestly appears that he acted within the scope of his authority, or was employed in his capacity as a public agent to do the act or make the declaration for it. Whiteside, et al. v. United States, 93 U. S. 247. 107. Individuals as well as courts, must take notice of the extent of authority conferred by law upon a person acting in an official capacity. Ibid. 108. It is a well-established principal of law that an agent is re- quired to have' and to exercise a degree of skill and knowledge neces- sary to the proper performance of the duties he assumes or undertakes. If lie has not the requisite skill or, having it, neglects to exercise it, he is responsible to his principal for the results of his ignorance or neglect. OF STANDARD DECISIONS. 19 Dartnell v. Howard, 4 B. and C. Eng. 345 ; also, Denew \. Davenell, 3 Camp. 451. 109. Where special instructions are given to aw agent he is re- quired to regard them in every particular. Where none are given, or where they are incomplete or indistinct, his duty will depend upon the understanding of the parties to be inferred from the circumstances of the undertaking, or the general usuage or established customs in rela- tion to such business. Goarrier v. Bitter, 4 Wash. U. S. C. C. 549. 110. An agent cannot, in a general sense, delegate his authority to another, unless duly authorized by his superior so to do. And when without such authority he employs subagents in the performance of his assumed duty he can be held responsible to his principal for all damages caused by their incapacity or negligence. Alexander y. Alexander, 2 Ves. Eng. 643 ; also, Lyon v. Jerome, 26 Wend. N. Y. 485. 111. There are exceptions to this rule, as where from the very cir- cumstances of the case it is known to be, and is necessary to employ flubagents, as where the business is such that the agent cannot per- sonally attend to it, the assent of the principal to the employment of subagents is implied. Rossiter v. Trafalgar Life, A. A. 27 Bear. Eng. 377. 112. The agent is of course required under these circumstances to use due diligence and circumspection in making his selection of capable fiubagents. 113. The bank must present all paper at the proper place for pay- ment at maturity, and if payment is neglected or refused it must, if necessary, have such paper protested, and give notice as soon as pos- sible, to the holder or depositor thereof alone, unless there be some gen- eral usage to the contrary where such paper is payable. Bank of U. S. v. Goddard, 5 Mas. U. S. 366 ; State Bank of Troy v. Bank of the Capital, 41 Barb. N. Y. 343 ; Hayes v. Birks, 3 Nos. and P. Eng. 699 ; Phipps v. Milbury Bank, 9 Mete. Mass. 79. 114. A contrary view has been held by other courts as follows: Bank of Washington v. Triplett, 1 Pet. 25 ; Smedes v. Bank of Utica, 20 Johns. N. Y. 372, 3 Cow. N. Y. 662 ; West Branch Bank v. Fulmer, 3 Barr. Eng. 299 ; Fabens v. Mercantile Bank, 23 Pick. Mass. 330 ; McKinster v. Utica Bank, 9 Wend. N. Y. 46, Wend. 473 ; Thompson v. Bank of South Carolina, 3 Hill, S. C. 77. 115. Where a bank receives a paper for collection, and which is payable at a distant locality, it has been held that the acceptance by the bank of paper for collection at some distant place implied, upon a reasonable construction, no other agreement than that it should be forwarded with due diligence to some competent agent to do what was necessary in the premises ; that the person leaving the bill was aware that the bank could not personally attend to the collection, and must therefor send the bill to some distant agent, and must be assumed to have authorized the transmission that the foreign bank or notary was directly responsible to him for any default, since they became his agent for the collection, and that the bank first receiving the paper could not be reasonably regarded as responsible for the fidelity of the agent abroad. Allen v. The Merchants 1 Bank, 15 Wend. N. Y. 484. The above case was appealed to the court of errors, where the decision of the supreme court was reversed. 22 Wend. 215. 20 MONROE'S DIGEST 116. The case was thus finally appealed to the Senate, then (1839) the highest appellate court in the state of New York, where the deci- sions of the Supreme Court was reversed ; this reversal has been re- spected by the courts of New York, with an exception, where the Su- preme Court adhered to its previous decision. Bank of New Orleans v. Smith, 3 Hill, N. Y. 560. 117. The Court of Appeals, which is now the highest appellate court in the state of New York, has sustained the decision of the State Senate, and thus established the decision as the law within its jurisdic- tion. The court held that where a country bank sends to its cor- responding bank in Albany, for collection, an indorsed bill of exchange payable in New York, and the latter bank indorses it and transmits it to its own corresponding bank in New York City for the purpose, the Albany bank alone is answerable for any negligence in presenting the bill by which the iudorser fails to be charged. Montgomery County Bank v. Albany City Bank, 3 Seld. N. Y. 459. 118. " Where the Bank of Wilmington was the owner of a bill of exchange, payable at sight, at Troy, and indorsed and transmitted it to the plaintiff under an arrangement .by which the latter collected and retained the proceeds of paper thus remitted to it, and with the same redeemed the circulating notes of and paid drafts drawn by the Bank of Wilmington, and the plaintiff indorsed and transmitted the bill to the defendant, its correspondent in New York, for collection and the same purpose," the court held the bill, if collected by the Troy City Bank, or if the same was lost by the omission of the latter to- charge the drawer and indorsers. Commercial Bank of Penn. v. Union Bank, 1 Kern. N. Y. 203 ; Walker v. Bank of N. Y., 5 Seld. N. Y. 382; Hoard v. Garner, 3 Sandf. N. Y. 179; Downer v. Madison County Bank, 6 Hill, N. Y. 648 ; Beeves v. State Bank, 8 Ohio St. 465 ;. American Express Co. v. Haire, 21 Ind. 4 ; Mackasy v. Ramsay s, 9 El. and Fin. Eng. 818 ; Ayrault v. Pacific Bank, 47 N. Y. 573 ; Wart v. Woolley, 3 Barn, and C. Eng. 439 ; Thompson v. Bank of S. C.,3 Hill,. S. C. 77. 119. The contrary has been decided by a Massachusetts court, wherein it was held that an action could not be maintained against the deposit bank. That when a note is deposited with a bank for collec- tion, which is payable at another place, the whole duty of the bank so receiving the note in the first instance is reasonably to transmit the same to a suitable bank or other agent at the place of payment. The defendants had performed their whole duty of the bank so receiv- ing the note in the first instance is reasonably to transmit the same to- a suitable bank or other agent at the place of payment. The defend- ants had performed their whole duty when they transmitted the note to a solvent bank in good standing, and were not responsible for the misfeasance or negligence of that bank. Fabens v. The Mercantile Bank, 23 Pick. Mass. 330 ; Dorchester, &c., Bank v. New England Bank, 1 Cush. Mass. 186 ; Warren Bank v. Suffolk Bank, 10 Cush. Mass. 582 ; Whitney v. Merchants 1 Union Express Co., 104 Mass. 152. 120. A similar case was decided in Connecticut in 1837. The owner of an accepted bill, payable in New York, indorsed and deposited it with the East Hacldam Bank for collection. It was sent by the de- posit bank, without its indorsement, to the Merchants' Ex. Bank OF STANDARD DECISIONS. 21 in New York ; upon presentation and non-payment, the collecting bank sent notice to the drawer alone. The East Haddam Bank, supposing the bill had been paid, gave the amount it called for to the holder. -Shortly after the bank discovered the error, and instituted suit for the recovery of the money from the bill owner. The court held that the bank was not precluded from recovering because of its not having in- dorsed the bill or advised the collecting bank of the holder's place of residence, or on the ground that it was responsible to the holder for the default of the collecting bank, or by reason of its having paid over the money to him. East Haddam Hank v. Scoville, 12 Conn. 303. 121. An Illinois court held that a bank receiving a bill or note for collection, where its transmission to another place is necessary, dis- charges its duty by sending it in due course and reason to a competent reliable agent, with proper instructions for its collection. The ^Etna Ins. Co. v. The Alton City Bank, 25 Ills. 362. 122. A Wisconsin court held that the contract implied from the re- ceipt by a bank, of a note for collection, payable at a distance from its place of business, is not absolutely to make due presentment of the note and give due notice of its non-payment, but to place it in the .hands of some competent and responsible agent for that purpose ; and that if the bank exercise reasonable care and skill in selecting such Agent, it is not liable for his default. Stacy v. Dane Co. Bank, 12 Wis. 629. 123. In Mississippi, the court held that a bank receiving com- mercial paper for collection, discharges its duty in case of non-pay- ment, by placing the paper reasonably in the hands of a notary public with proper instructions, and in such case the notary is the subagent -of the owner, and directly responsible to him. Bowling v. Arthur, 34 Miss. 41. 124. The Maryland court held the same in Citizen's Bank v. ffowell, 8 Md. 530. In Pennsylvania, the same in Bellemue v. Bank of U. S., 4 Whart. 105 ; Mechanics 1 Bank v. Carp, 4 Rawle, Pa. 383 ; same in Louisiana, Hyde v. Planters' Bank, 17 La. 560. 125. The question of responsibility under these conflicting opinions has remained undecided for years, the courts of one state holding to one side, and those of another to the other. The supreme -court of the United States has now settled the question. It has de- cided the case as follows : A creditor residing in Nebraska left a claim with a collecting agent for collection, the agency sent the claim to a law firm in Nebraska ; the lawyers procured a judgment by confession Against the debtor, well knowing that he was insolvent. The proceeds of his judgment were sent by them to the collecting agency, but not paid over to the creditor by the agency. In four months after this confession of judgment, proceedings were commenced in bankruptcy against the debtor in Nebraska, who was declared bankrupt. When his assignee in bankruptcy brought action against the New York creditor to recover back the amount of the judgment, the question of responsibilitj" rested on the fact whether the lawyers who knew of the insolvency of the debtor at the time of the confession of judgment, were or were not the agents of the creditor. If they were, he must be liable, since the knowledge of the agent is the knowledge of the principal. The Supreme Court held that the attorneys employed were 22 MONROE'S DIGEST the agents of the collection agents, which assumed the collection of the- claim, and that, therefore, the assignee could not recover. Hoover, assignee v. Wiese, 13 Albany Law Journal, 164. The decision in New York, Ohio, and in England, which hold the bank receiving commer- cial paper for collection, are cited with approval and followed as authorities upon the question to be passed upon, although other cases- were cited, including Bradstreet v. Everson, 72 Pa, St. 124 ; Lewis v. Peck, 10 Ala 142 ; Cobb v. Beake, 6 Ad. and E. Eng. 930. 126. In the United States Circuit Court for the Northern District of Illinois, the above doctrine was held. The court held that the law,, as now settled by the Supreme Court of the United States, in Hoover v. Wiese, et al., 91, 308, is, that when a bank receives commercial paper for collection, whether payable at the place where such bank is situ- ated, or at some distant place, in the absence of special agreement,, there is an implied contract on the part of the bank, arising from the undertaking that it will take all steps necessary for the collection of the paper, and in case of non-pa3'ment, for charging the parties thereto- that is, its position is that of an independent contractor, and the instruments employed by such bank in the business contemplated are its agents, and not the agents of the owner of the note. Its duty is not confined simply to that of using care and diligence in the selection of its agents to perform the undertaking which it has accepted. 127. It is further responsible for the neglect and default of the corresponding bank, notary, or other agent employed by it or by its agents, and is liable to the holder for the money when the same is col- lected by any of its agents or subagents. Hyde v. First National Bank, Chic. Leg. News, 262 ; Alb. L. ,T., 340. 128. But the other state courts before which the question has arisen^ and the Supreme Court of the United States, hold to the doctrine stated above, i. e., to the rule which governs a bank in the selection of a notary where the paper is pa3*able in the place of the receiving bank,, that the duty of the bank ceases with the selection of a proper notarj 7 . The reasoning is this : when a party deposits his paper in his own bank for collection, which paper is made paj-able at a distant place, he knows or is bound to know, that the receiving bank, in order to do its duty in collecting, has to transmit the paper to its correspondent at or nearest the place where the paper is payable, in order that the same may be duly presented for payment, and if not paid, due demand and notice can be given ; for it cannot be supposed that the receiving bank would send its own agent or notary to the distant place, perhaps thou- sands of miles, to present the paper for payment, and if not paid to duly protest it. And it entered into the implied contract, made with the receiving bank at the time, that it should transmit the paper to its correspondent nearest to the place where the paper is made payable ; that when the receiving bank so transmits the paper, the correspondent bank or its notary becomes the agent, not of the transmitting bank, but of the true owner of the paper, and is responsible to him for its neglects or defaults. 129. Of c6urse the receiving bank must not be guilty of any negli- gence in selecting an improper bank to which to transmit the paper. Some of the leading cases that hold this doctrine are Dorchester and Milton Bank v. New England Bank, 1 Cush. Mass. 177 ; Lawrence v. OF STANDARD DECISIONS. 23 Stonington Bank, 6 Conn. 521; JEtna Ins. Go. v. Alton City Bank T 25 Ills. 243; Bank of Washington v. Triplett, 1 Peters, U. S. 25; de- cision by Chief Justice Marshall. 130. And Mr. Morse, in his treatise, after going fully into the doc- trine, comes to the same conclusion. 131. Checks drawn on another bank located in the same place && the deposit bank, and deposited for collection, must be presented for payment before the close of banking hours, on the business day next succeeding that upon which they are deposited, unless otherwise duly instructed. Alexander v. Burch field, 7 Mass, and G. 1,061; Bod- dington v. Schlencker, 4 B. and Ad. Eng. 752 ; Moule v. Brown, 4 Bing. Eng. 266. 132. The depositor of paper has no legal right to draw on the bank of deposit for collection before the payment for the same has been re- ceived by the deposit bank, although it is customary with many banks to allow it to be done. Scott v. Ocean Bank, 23 N. Y. 13. 133. The bank having placed the amount due on the note deposited for collection, does not deprive the depositor of his ownership of such note. Giles v. Perkins, 9 East. Eng. 13. 134. Where the collection passes through several banks, each is bound to the holder for its failure to transmit to its next correspondent, and is liable to a suit direct from him. Lawrence v. Stonington Bank, 7 Conn. 521. 135. But this would not be the doctrine in New York or Ohio. 136. The ratification by one of the unauthorized act of another operates upon the act ratified precisely as though authority to do the act had been previously given, except where the rights of third parties have intervened between the act and the ratification. Cook v. Tullis r 18 Wall. 332. AGREEMENTS. 137. Agreement which is forbidden by law, expressly, or by impli- cation, or which is against public policy, will not be enforced in a court of law. Neither will an executed contract resting on such a consider- ation be relieved against in equity. Batcliffe v. Smith, 13 Bush. Ky. 172. 138. The defendants promised to furnish to the plaintiffs sulphuric acid for their " works." Neither the terms of payment nor the time for which the arrangement should continue, was agreed upon. Held, that either side to the contract could terminate it at pleasure. Cumb. Bone Co. v. Atwood Lead Co., 63 Me. 167. 139. When a debtor, upon whose obligation installments of inter- est which had from time to time become due remain unpaid, entered into an agreement to pay the said obligation with compound interest,, the promise is met by the payment of simple interest upon the prin- cipal unpaid at the date of the agreement, and simple interest, also, upon the total arrears of interest at the time due and unpaid ; it does not authorize the compounding of interest annually for the whole period, which interest has become due by the terms of the obligation. The mere rendering of an account does not make it an account stated,. 24 MONROE'S DIGEST and an omission to object to it raises only a presumption of assent, which may be rebutted, by circumstances tending to a contrary infer- ence. Toland v. Sprague, 12 Pet. 330; Guernsey, et al. v. Rexford, Adm. ApllL, 18 Sickels, N. Y. 631. 140. A parol promise to pay the balance of purchase money due under articles of agreement, made at the time of the execution of a deed, is founded on a good consideration and will support a personal action for said debt. Baumv. Tonkin, 110 Pa. 569; Scott v. Fields, 7 Watts, Pa. 360; Clarke v. Stanley, 10 Barr. Pa. 479. 141. A creditor of a firm cannot maintain an action upon an agree- ment made with the firm by one not a member, to pay a portion for instance, one quarter of its indebtedness ; as no one creditor can show from the contract that it was intended for his benefit or covers any part of his debt. Wheat, v. Bice, 97 N. Y. 296. 142. Agreement of life insurance company to pay agent commis- sions on renewals, or a gross sum in lieu thereof, is terminated by dis- solution of company. Hepburn v. Montgomery, 97 N. Y. 617. ALTERATION OF INSTRUMENT. 143. If an instrument be materially altered after its execution, no money can be had upon it unless it was accidental, or done by the party claiming under it, or with his consent. An alteration after delivery, and whilst in the custody of the party asserting a right under it, devolves upon him the duty of explanation. Everman & Co. v. Robb, 52 Miss. 653. 144. In an action upon a promissory note, the answer admitted the making of a note for the amount, and payable at the time of the note :set forth in the complaint, but averred that said note, after its delivery to plaintiff, was materially altered by him, without defendant's knowl- edge or consent, by changing the date thereof from April 1, 1872, to April 1, 1873. This answer was struck out, on motion, as sham and frivolous. Held error ; that the alteration alleged was material ; also, that it was not the province of the court to decide the question of fact raised by the answer, upon mere inspection of the note. Rogers v. Vosburgh, 87 N. Y. 228. 145. Any alteration of a note by the holder unknown to the maker destroys all interest of the person so altering the note in the same, and makes him responsible for the amount due on the note to all innocent holders. The insertion of " with interest," or otherwise increase the "value of the note would be forgery. Ed. 146. When a partnership is in the habit of indorsing negotiable paper, having blanks left for the date, and gives the paper so indorsed to a person to use he to fill the blank when he wishes to use it the firm is liable on the paper with the date filled in, when, thus complete, it is held by innocent bona fide holders for value. Michigan Bank v. Eldred, 9 Wall. U. S. 544. 141. Evidence that by the articles of partnership one partner had no right to indorse negotiable paper, is inadmissible to defeat a bona .fide holder of such paper indorsed with the firm name by a member of OF STANDARD DECISIONS. 25 the firm, and taken by such bona fide holder for value, and without notice of the articles. Ibid. 148. The power to fill the blanks for dates implies in favor of such holders a power in the person trusted, to change the date, after a note lias been written, and before it is negotiated. Ibid. AMENDMENT. 149. Of complaint, after judgment and satisfaction, by adding new cause of action, is in the discretion of the court. Hatch v. Cent. Nat. Bank, 78 N. Y. 487. 150. Upon the trial of an action upon a contract, defendant moved and was permitted, without objection, to amend his answer by setting up an overpayment upon the contract, and demanding judgment for the amount thereof. It was proved that said overpayment was made after the commencement of the action. Held, that defendant was en- titled to judgment for the amount of such overpayment; that under the Code of Procedure ( 150, sub. 1, which was in force at the time of the trial), as it was a claim arising out of the contract upon which the action was brought, it was a proper counter claim ; that de- fendant might have been allowed to set it up by supplemental answer ( 177); that the amendment was in effect a supplemental answer, and gave the same right to judgment. Howard v. Johnston, 82 N. Y. 271. APPEAL. 151. A trustee of a fund for the security of an indebtedness to others, who as such is plaintiff in an action to enforce such indebtedness, may appeal from a judgment which reduces and limits the number of those who are creditors upon the fund ; he is aggrieved by the judg- ment when a real claim is not added into the amount adjudged to be due; and a real claimant is shut out by it from a share in the proceeds. Bockes v. Hathorn, 78 N. Y. 222. 152. After the satisfaction of a judgment in favor of plaintiff it is within the discretion of the court to vacate it and to amend the com- plaint by adding new causes of action, although by so doing the statute of limitations is avoided. Hatch v. Cent. Nat. Bank, 78. N. Y. 487. 153. When the lien of a judgment upon real estate of the judg- ment debtor has been suspended during appeal by order of the court as prescribed by the Code of Civil Procedure ( 1256), an order va- cating such order of suspension and upon its face purporting to restore the lien nunc pro tune does not restore it as against a creditor whose judgment was docketed in the interval between the granting of the two orders, and who was not a party to the original action or to the pro- ceeding vacating the order. The court cannot by the mere process of '26 MONROE'S DIGEST \ vacating its order destroy liens taken upon the faith of it. Harmon v. Hope, 87 N. Y. 10. 154. When the gravamen of an action as set forth in the com- plaint is fraud and the action is tried upon that theory without objection or exception, and the judgment is adverse to the plaintiff, the question as to whether the complaint stated facts sufficient to constitute a cause of action on contract, and whether there was evidence sufficient on the trial to sustain such a cause of action can- not be considered on appeal to this court. Salisbury v. Howe, 87 N. Y. 128. 155. A question not presented on trial cannot be heard here. Salisbury v. Howe, 87 N. Y. 128. 156. It seems that in an action in the nature of a creditor's suit r the amount of the judgment upon which it is based measures the mat- ter in controversy, and if less than $500, the judgment in the creditor's suit is not appealable to this court unless an appeal is allowed by the Supreme Court. (Code, 191, sub. 3). Payne v. Becker, 87 N. Y. 153. 157. An injunction order having been issued in this action, restrain- ing defendant, its officers, etc., from doing certain acts, an order was subsequently granted, directing that an attachment as for contempt issue against G., its president, returnable at Special Term, at a day named. Held, that the order affected no substantial right of defend- ant ; and, therefore, was not reviewable upon appeal by it to this court. A. & P. Tel. Co. v. B. & 0. R. R. Co., 87 N. Y. 355. 158. It is no defence to an action on an undertaking given to stay execution under the Code of Procedure ( 355), by executors on ap- peal from judgment against them as such, that sufficient assets, did not come to the hands of the executors to pay the judgment. Yates v. Burch, 87 N. Y. 409. 159. Under the provision of said Code ( 348) requiring ten: days' notice to " the adverse party of the entry of the order or judg- ment affirming the judgment appealed from," before bringing suit upon an undertaking given to stay proceedings on appeal to the General Term, the fact that after entry of judgment and service of notice thereof, the sum of costs was reduced upon retaxation, did not require the service of a new notice before bringing suit. Yates v. Burch, 87 N. Y. 409. 160. Where, after the commencement of an action against a rail- road corporation, the plaintiff executed a release of the cause of action and of the costs therein, and also signed, in person, a stipu- lation discontinuing the action, and consenting to the entry of an order of discontinuance on filing the stipulation, which order was entered, ex parte and without the special direction of the court, upon filing the release and stipulation, held, that while the court had power to protect the plaintiff's attorney against a collusive settle- ment in fraud of his rights, the plaintiff was not entitled to have the order set aside on account of her attorney ; that the order, having been entered upon her stipulation expressly authorizing it, she could not question its regularitj' and could not be heard to make the objec- tion that, having appeared by attorney, he only was authorized to sign. a stipulation for discontinuance ; and that therefore an appeal by her OF STANDARD DECISIONS. 27 from an order denying a motion to set aside an order of discontinu- ance was not sustainable. McBratney v. R. W. & 0. R. R. Co., 87 N, Y. 467. 161. C., an attorney, on the employment of a lunatic over whose person and estate a committee had been appointed, and by permission of the court, made an application to supersede the commission, which was denied. C. then applied to the court for his charges and disburse- ments. A portion of his claim was allowed, and an order granted di- recting its payment. The committee appealed to the General Term r and on January 15th, 1875, after argument but before decision, the luna- tic died. On January 22d, the order was reversed and motion denied. The order of reversal was duly entered and served on C. February 25th, and on May 1st, he appealed to this court. In June, 1879, the General Term, by order, subtituted " January 5th," for " January 22d," as the date of the order of reversal. C. caused the order, with its substi- tuted date, to be reentered on September 21st, 1881, and on September 26th, appealed therefrom. A motion was thereafter made by C. for an order substituting the administrators of the lunatic in the proceedings in place of the committee, who had also died. Held, first, that to make applicable the provisions of the Code of Civil Procedure in re- gard to appeals from orders where a party " has died since the making of an order " ( 1297), it was necessary for the moving party to treat the order appealed from as made before the death of the lunatic, who alone could be regarded as " the adverse party ; " that the service of the order under the original date was effectual to limit the time of appeal, and the time expired in sixty days thereafter ; second, that the order itself was not appealable, as it was in the discretion of the court below ; third, upon the death of the lunatic, the power and functions of the committee ceased, and the proceedings abated ; any legal claims against the estate could thereafter only be enforced in the manner prescribed by law. In re Becwith, 87 N. Y. 503. 162. Under the Code of Civil Procedure ( 1337), where the de- cree of a surrogate in proceedings for the probate of a will is affirmed by the General Term of the Supreme Court, this court has no jurisdic- tion, upon appeal, to review the questions of fact which depend upon conflicting evidence, but is confined exclusively to questions of law. In re Ross, 87 N. Y. 514. 163. It seems that, unless special provision authorizing it can be found in the law, there can be no review in this court of questions of fact, depending upon conflicting evidence, in any case. In re Ross, 87 N. Y. 514. . 164. It seems, also, that the only special provision authorizing the review here of such questions of fact is that which provides for a re- view upon the facts, where the General Term has reversed, upon ques- tions of fact, a judgment entered upon the report of a referee, or upon a decision of the court on trial without a jury. In re Ross, 87 N. Y. 514. 165. The provision of said Code relating to appeals from decrees of surrogates (2586), providing that "where an appeal is taken upon the facts, the appellate court has the same power to decide the ques- tions of fact which the surrogate had," etc., applies exclusively to ap- peals to the Supreme Court. In re Ross, 87 N. Y. 514. 28 MONROE'S DIGEST 166. Where, in proceedings before a surrogate to prove a will, erroneous evidence is received, the decree will not be reversed " unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby." (Code, 2545). In re Boss, 87 N. Y. 514. 167. Where a judgment entered upon the report of a referee is re- versed by the General Term, and the order of reversal does not certify that it was founded upon error of fact, it is to be assumed on appeal to this court that the reversal was for some error of law. Ward v. Craig, SI N. Y. 550. 168. The respondent, however, is entitled to sustain the reversal by showing any error of law which is fatal to the judgment, whether made the reason of the action of the General Term, or wholly unnoticed by it. Ward v. Craig, 87 N. Y. 550. 169. Where it does not appear in an order of General Term revers- ing a judgment entered upon the report of a referee, that the reversal was upon questions of fact, the only inquiry on appeal from the order to this court is whether it rests upon any error of law. (Code, 1338). Davis v. Leopold, 87 N. Y. 620. 170. Under the Code of Civil Procedure ( 1337), the decision of a surrogate upon a question of fact arising on conflicting evidence upon the final accounting of an executor is not reviewable here. Davis v. Clark, 87 N. Y. 623. 171. The provision of said Code ( 2586), declaring that : " Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact which the surrogate had," etc., has reference only to appeals from surrogate's decrees or orders to the Supreme Court. Davis v. Clark, 87 N. Y. 623. 172. It is in the discretion of the court below, whether to set aside a subpoena duces tecum; so also, whether permission shall be granted defendant to inspect and copy plaintiff's books ; and the exercise of this discretion is not reviewable here. Clyde v. Rogers, 87 N. Y. 625. 173. It seems, that the clause in section 1003 of the Code of Civil Procedure providing that an error in the admission or exclusion of evi- dence, etc., " upon the trial may, in the discretion of the court which reviews it, be disregarded if that court is of opinion that substantial justice does not require that a new trial should be granted," has no application to a trial before a referee. Luders v. Rasmus, 87 N. Y. 631. 174. When erroneous ruling evidently harmless, not ground for reversal. See Nolan v. B. C. & N. R. R. Co., 87 N. Y. 63. 175. Costs of appeal when in discretion of General Term. See In re Bradner, 87 N. Y. 171. 176. When order allowing counsel fees in proceedings to ascertain damages by reason of injunction is reviewable here. See Newton v. Russell, 87 N. Y. 527. 177. On appeal to this court from a judgment entered on a decision of the court or the report of a referee, no fact can be considered for the purpose of reversing the judgment unless it is either stated in the find- ings, or was requested to be found on uncontroverted evidence. Thomson v. Bank of British N. America, 82 N. Y. 1. 178. This action was brought to recover back two items of moneys alleged to have been extorted from plaintiff without consideration and OP STANDARD DECISIONS. 29 1 wrongfully; the defences were a denial of the wrongful acts charged and averments that one of the items was paid for services rendered by a bank of which defendant was president, and that the payment was to- said bank and not to defendant ; as to the other item that it was a charitable donation to a church of which defendant was treasurer, and that both were paid voluntarily ; evidence was given on the trial sup- porting the defence as to both items. Upon appeal from an order or General Term reversing a judgment in favor of plaintiff entered on the verdict of a jury and granting a new trial, held, that assuming the payments were made without consideration, and though voluntarily made could be recovered back (as to which quoere), yet if the defend- ant was not guilty of the wrongs charged, and as to one of the items simply acted as agent of his bank hi receiving the money, and the pay- ment was in fact to the bank and went to its use (which facts it was- conceded by appellant's counsel were to be assumed in favor of re- spondent), defendant was not personally liable for that item, but the action should have been against the bank ; that at least as to so much of the recovery it was erroneous, and being wrong in part a new trial was proper. Appeal, therefore, dismissed. American National Bank v. Wheelock, 82 N. Y. 118. 179. Upon motion in an action of foreclosure by a junior mortgagor to be subrogated to the rights of the plaintiff upon payment of his- mortgage, it was a question at issue, as to whether the junior mort- gage was paid. Held, that the determination of the court below was conclusive upon appeal. Twombly v. Cassidy, 82 N. Y. 155. 180. An order of arrest is a provisional remedy which the court may grant or refuse in a proper case within its discretion, and the exercise of this discretion is not reviewable here. Clarke v. Lourie, 82 N. Y. 580. 181. No appeal lies, therefore, to this court, from an order vacating an order of arrest, when upon any view of the facts the decision can be upheld. Clarke v.Lourie, 82 N. Y. 580. 182. Unless the contrary appears in the order, it must be as- sumed that it was made in the exercise of such discretion. Clarke v. Lourie, 82 N. Y. 580. 183. The opinion of the court below cannot be resorted to for the- purpose of determining the ground on which it was based. Clarke v. Lourie, 82 N. Y. 580. 184. The point that in action on lost note, bond required by stat- ute was not given, cannot be raised for first time on appeal, it must be presented by exception. Fordham v. Hendrickson, (Mem.) 84 N. Y. 654. APPLICATION OF PAYMENTS. 185. It seems, that the right of a debtor making a payment to di- rect upon which one of several distinct liabilities or demands, held by his creditor, it shall be applied, must be exercised at the time of pay- ment ; if he makes a payment without directing at the time as to its- appropriation, the money becomes absolutely the property of the credi- SO MONROE'S DIGEST tor and he may apply it as he chooses. Nat. Bank of N. v. Bigler, 83 N. Y. 51. 186. So, where the debtor assigns property as collateral security generally without dictating upon what demand its proceeds shall be applied, he cannot bind the creditor by any subsequent direction, but the latter may apply such proceeds to any of the demands held by him which are due at the time the money is received. Nat. Bank of N. v. Bigler, 83 N. Y. 51. 187. Where money is collected by a creditor by the sale of collat- erals placed in his hands to secure several distinct items of indebted- ness, under such circumstances that neither he nor the debtor pos- sesses the right to determine as to the application, the power devolves upon the court, and it will apply the money upon equitable principles. Jones v. Benedict, 83 N. Y. 79. 188. W. H. held certain notes and a mortgage as security for an indebtedness of W. F. ; the latter was dealing with and was indebted also to F., B. & Co. To secure any balance which might, atany time, be due from W. F. to that firm, W. H. transferred to them said securi- ties, the same to be returned to him when such balance was paid ; after- ward W. H. drew drafts upon F., B. & Co., for the benefit of a mining corporation, in which he had no interest, but in which W. F. and the plaintiff were stockholders, W. F. being its superintendent; these drafts were accepted by said firm upon an agreement that the notes and mortgages should be held as security therefor; and, not having been paid at maturity, were taken up by the firm. To procure an extension of the time of payment W. F. executed his notes, payable to his order, which were indorsed by him, by plaintiff and by other stockholders, and were delivered to F., B. & Co. The stockholders, including plaintiff and W. F., subsequently executed an agreement by which each obligated himself to pay his proportionate share of liabilities assumed for the benefit of the corporation. F., B. &. Co., recovered judgment upon the stockholders' notes, and subsequently collected, upon the mortgage, a sum sufficient nearly to pay the balance due them from W. F. In an action brought for relief against said judg- ment,, plaintiff claiming that the sum so collected should be applied pro rata upon the debts for which the mortgage was held as security, .held, that whether the application of the money devolved upon the creditor or the court, equity justified its application upon the balance due from W. F. Jones v. Benedict, 83 N. Y. 79. ASSESSMENT. 189. Under the provisions of the statute (1 R. S., 389, 5) ex- empting agents of moneyed corporations or capitalists from taxation " for any moneys in their possession, or under their control, transmit- ted to them for the purposes of investment, or otherwise," and ex- empting demands belonging to non-residents of the State sent to or de- posited in this State for collection (1 R. S., 419, 3), foreign capital sent here for investment is protected from taxation, whether invested or uninvested, and whether the securities received therefor are takea OF STANDARD DECISIONS. 31 away or remain here for collection. Williams v. Suprs. Wayne Co., 78 N. Y. 561. 190. Under the Internal Revenue act of July, 1870, interest paid and dividends declared during the last five months of the year 1870, taxable, as well as those declared during the year 1871. Blake v. National Bank, 23 Wall. U. S. 307. ASSIGNMENTS. 191. The statute provision that blank assignments shall be taken as of a date most to the advantage of the defendant, only applies in the absence of evidence as to the date of the assignment. Trieber v. Com. Bank of St. Louis, 31 Ark. 128. 192. The surety in a bond, upon tender of the debt, is entitled un- der the statute to an assignment of the bond, if demanded ; and a re- fusal to make such assignment is a discharge of the surety, per se, ir- respective of the question whether, in consequence of such refusal, the surety has sustained injury. Merrikan v. Godwin, et al., 2 Del. 236. 193. An assignment under seal and duly recorded, of wages, by A. to " J. B., treasurer," to secure the corporation of which J. B. was treasurer, for goods it had previously sold and might afterwards sell to A., is valid. Giles v. Ash, 123 Mass. 353. 194. Although an assignment giving preferences is void under the bankrupt act, under the conditions therein provided, it is void only as to persons and proceedings under that act, and except as to such per- sons and proceedings, it is valid as ever. Williams v. Pitts, 55 Howard, N. Y. 331. 195. The assignee of stock in an insurance company, by assign- ment and delivery of the certificate of stock, and notice to the com- pany, has a superior right to that of a subsequent attaching creditor of the assignor, although there be a valid by-law of the company, em- bodied in the certificate, that the stock is only transferable on the books of the company, at their office, on surrender of the certificate, the charter containing no provision on the subject of the assignment of the stock. State Ins. Co. v. Gennett, 2 Tenn. Eq. 100. 196. An assignment by virtue of or under a foreign law does not operate -upon a debt, or rights of action as against a person in this State. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. 197. At the time of the execution of an assignment for the benefit of creditors there was a balance standing to the credit of one of the assignors upon the books of another bank ; this was not included in the inventory. It appeared that the assignment was executed and filed on Saturday ; this balance was withdrawn the next Monday ; it did not appear by whom or in what manner. The inventory was sub- sequently made and was verified. Held, that the presumption was that the balance was drawn out on the check of the assignor, executed prior to the assignment ; also, that a failure of the assignor to explain the transaction did not authorize the presumption that he was the owner of the balance at the time of the assignment ; that until proof 32 MONROE'S DIGEST was given sufficient to authorize a presumption of fraud, the assignor* were not bound to explain. Schultz \. Hoagland, 85 N. Y. 464. 198. The assignee of a mortgage, after condition broken, being in possession of real estate mortgaged and also being the holder of the note secured by the mortgage and the assignee thereof, can defend his possession under the mortgage, in ejectment brought by the mortgagor or those claiming under him. Kilgour v. Gorkley, 83 111. 109. 199. A creditor who fails to file his claims with the assignee within three months after the first publication of the notice of assignment is not entitled to share pro rata in the dividends of the estate. In the matter of the assignment of Holt, 45 Iowa, 301. 200. Assignment of a debt carries with it in equity an assignment of a judgment or mortgage by which it is secured. Batesville Insti- tute v. Kauffman, 18 Wall. U. S. 151. 201. An order of reference, to take proof as to charges made by creditors against an assignee for the benefit of creditors, is not review- able here, as it is an order, not final, made in a special proceeding. (Code of Civil Procedure, 190, subd. 3). In re Friedman, 82 N. Y. 609. 202. An assignment for the benefit of creditors contained a clause empowering the assignee to collect the " choses in action with the right to compound for the said choses in action, taking a part for the whole,, when he shall deem it expedient." In an action by the assignee to re- cover assigned property levied upon by defendant as sheriff by virtue of executions against the assignor, held, that the clause was to be con- strued as simply authorizing the assignee to compromise such claims as in a sound discretion the interests of the trust required; that as so construed, the clause was not in conflict with the provision of the act of 1877, in relation to such assignments ( 23, chap. 466, Laws of 1877), which permits the County Court to authorize an assignee to compromise any claim or debt belonging to the state ; and that it did not invalidate the assignment. Coyne v. Weaver, 84 N. Y. 386. 203. A general assignment for the benefit of creditors authorized the assignee to " collect the notes, accounts and choses in action and the taking the part of the whole when the party of the second part (the assignee) shall deem it expedient to so do." In an action by the assignee for the conversion of a portion of the assigned property, held r that said provision, literally construed, simply authorized the assignee to receive payment by installments, not to satisfy a debt on payment of a portion ; but even if the effect was to give power to compromise it did not invalidate the assignment. McConnell v. Sherwood, 84 N. Y. 522. 204. The assignment authorized the assignee " to compromise with the creditors " of the assignor for all his debts and liabilities if in the opinion of the assignee " it would be advantageous " to the creditors and the assignor. Held, that the effect and intent of this provision was to the payment of debts and to create a trust for the assignor and so it rendered the assignment void. (2 R. S. 135, 1 ; id. 137, 1). McConnell v. Sherwood, 84 N. Y. 522. 205. A majority of the creditors of B., an insolvent, signed an agreement with him by which he was to assign all his property for the benefit of the creditors who signed the agreement. The agreement OF STANDARD DECISIONS. 33 was to be void unless signed by all his creditors. An assignment was duly made, but was not recorded within thirty days. H. and M., cred- itors who did not sign the agreement, and McF., who did, obtained judgments and levied on and sold the personal estate in the hands of the trustees, under the assignment. There was no evidence that McF. had done anything to estop himself from claiming against the assign- ment. The court below awarded the fund raised by the sale to H., M. and McF., according to priority. Held, not to be error. Lane's Ap- peal, 82 Penn. St. 289. 206. A deed of assignment was made by a firm whose liabilities were $596.41 and whose assets were $614.18, to an assignee in trust for the creditors, which deed contained the following special clause, viz : " The assignee shall take possession of the property transferred to him, sell and dispose of the same with all reasonable diligence, either at public or private sale, for the best prices that can be obtained there- for, and convert the same into money, unless the indebtedness of the firm can be paid or settled otherwise by amicable arrangement between the creditors of the firm," etc., " and out of the proceeds of such sale, if any be made," etc. Held, that the deed of assignment was void. Keevil v. Donaldson, 20 Kansas, 165. 207. An assignment for the benefit of creditors vests the title forthwith in the assignee, though ignorant of the assignment. The moment an assignment for the benefit of creditors is placed by the as- signor, or any one interested, in the office of the recorder of deeds of the proper county and within the prescribed time, the beneficial inter- est of the creditors, the cestuis que sustent, is completely vested, and it is totally immaterial when the assignee accepts the trust or whether he ever accepts it. Mark's Appeal, 85 Pa. St. 231. 208. An insolvent debtor may make an assignment of all of his property for the benefit of his creditors, and he may make preferences. Hauselt v. Vilmar, 76 N. Y. 630. 209. If the assignment be free from fraud, it will not be avoided because it will incidentally and inevitably hinder and delay creditors ; the necessary delay incident to the execution of the trust is not within the meaning or condemnation of the statute (2 R. S. 137, 1), declar- ing void conveyances made with intent to hinder, delay or defraud creditors. Hauselt v. Vilmar, 76 N. Y. 630. 210. While every person is chargeable with notice of bankruptcy proceedings, legally and properly conducted, such notice is only for the protection and efficacy of the proceedings. A part}' to a contro- versy, who does not claim under, and bases no right upon said pro- ceedings, cannot claim that the opposite party is charged thereby with any notice whatsoever. Page v. Waring, 76 N. Y. 463. 211. The declarations of an assignor of a chose in action, forming no part of the res gestae, are not competent to prejudice the title of his assignee, whether the assignment be for value, or merely for the bene- fit of creditors, and whether the declarations be antecedent or subse- quent to the assignment. Truax v. Slater, 86 N. Y. 630. 212. The declarations of a vendor are not competent to affect the title of his vendee. Tabor v. Van Tassell, 86 N. Y. 642. 213. A surety upon the bond, given as required by the act of 1877 8 34 MONROE'S DIGEST i( 5, chap. 466, Laws of 1877) by an assignee for the benefit of credi- tors, brought an action in his own name, not stating it was for the benefit of others, against the assignee alone for an accounting and settlement of the trust ; a referee was appointed therein to take proof, with directions to publish a notice to persons having claims to present them with vouchers in pursuance of section 786 of the Code of Civil Procedure. It was also provided in the order that any creditor might object to a claim presented, and thereupon the referee might take the proofs and report as to its validity. Subsequently, upon petition of creditors, the county judge issued a citation requiring the assignee to appear and show cause why a settlement of his accounts should not be had. Held, that an order was improperly granted in the action re- straining the proceedings before the county judge; that said section of the Code only authorizes publication of notice when an action is brought for the collective benefit of creditors and this was not such an action; that no creditor could be bound b3' the judgment, nor could the purpose of the proceeding be affected in the action ; that the credi- tors were in no sense parties to the action, and the court had no juris- diction over them. Schuele v. Reiman, 86 N. Y. 270. 214. An assignee for the benefit of creditors is liable for ordinary negligence, or the want of that degree of diligence which persons of ordinary prudence are accustomed to exercise in their own business. In re Dean, 86 N. Y. 398. 215. The assets transferred by an assignment for the benefit of creditors consisted of property used in a livery business and debts due the assignor ; there were chattel mortgages covering the property for more than its value. The assignee carried on the business for about two months at a loss, and then sold the entire propert}', subject to the mortgages, for one dollar. Held, that upon the accounting of the assignee, the items for receipts and disbursements, while he was carry- ing on the business, were properly rejected ; that he was simply author- ized to convert the assets into money and distribute it among the credi- tors, and the estate could not be charged with a loss incurred in an unauthorized use of the property. In re Dean, 86 N. Y. 398. 216. Also held, that the assignee was not entitled to commissions upon the value of the mortgaged property, but only on what was received therefor. In re Dean, 86 N. Y. 398. 217. Although a bond and mortgage may be transferred by mere delivery, there must be an intention so to transfer accompanying the delivery. When the intention is to have a written assignment, a mere manual delivery does not pass title. Strause v. Josephthal, 77 N. Y. '622. 218. State courts have jurisdiction of an action by an assignee in bankruptcy to set aside and have declared void a chattel mortgage exe- cuted by the bankrupt, on the ground that it constitutes a fraudulent preference within the bankrupt act, and to compel an accounting on the part of the mortgagee; it is not a matter or proceeding in bank- ruptcy within the meaning of section 711 of the U. S. Revised Statutes. Ansley v. Patterson, 77 N. Y. 156. 219. It seems, that an account may be assigned in the same manner as a chattel, and what will pass title to the latter will be equally effect- ual as to the former. Truax v. Slater, 86 N. Y. 630. OF STANDARD DECISIONS. 35 220. The remedy given by the bankrupt act (U. S. R. S., 5120), toy application to the District Court which granted a discharge, to annul it, applies only to cases where, upon some of the grounds speci- fied, the creditor could have successfully opposed the granting of the discharge, had he known of the facts at the time of the application. Portion v. Lawrence, 77 N. Y. 207. 221. An action for the conversion of securities, pledged to the de- fendant as collateral security for a loan, is barred by the defendant's discharge in bankruptcy. Hennequin \. Clews, 77 N. Y. 427. 222. It seems, that a power of attorne}' authorizing the assign- ment of mortgages, impliedly includes the assignment of bonds accom- panying the mortgages. Feldman v. Beier, 78 N. Y. 294. 223. It seems, that, under the bankrupt act as amended in 1874 (U. S. R. S. 5128), an assignee in bankruptcy, in order to set aside an assignment of property made by the bankrupt to a creditor, must estab- lish not only that the person claiming under the assignment received it with " reasonable cause to believe " the assignor u insolvent," but that he received it " knowing that such assignment was made in fraud of the provisions of the act." The " reasonable cause to believe " the insolvency may rest upon conjecture, but the knowledge of the fraud must be established as a fact. Guernsey v. Miller, 80 N. Y. 181. 224. Of personal property after cause of action for conversion thereof has accrued gives assignee right of action ; also when consid- eration of assignment cannot be inquired into by third parties. McKeage v. H. F. Ins. Co., 81 N. Y. 39. 225. The assignment of an attorney's receipt of a claim for col- lection, carries with it an equity to the proceeds of the judgment. The effect of such an assignment is that the judgment creditor becomes but a mere trustee, having no right to be the judgment creditor in himself. After notice the debtors could not rightfully pay, except to the owner and holder of the order. Richardson & May v. Lightcop, 52 Miss. 508. 226. The assignment of a promissory note before maturity, raises the presumption of a want of notice of any defence to it ; and this pre- sumption stands till it is overcome by sufficient proof. Carpenter v. Lougan, 16 Wall. U. S. 271. 227. Where, for a valuable consideration received from the payee, ^.n order is drawn upon a third person, payable out of a particular fund then due or to become due from him to the drawer, the delivery of the order to the payee operates as an assignment pro tanto of the fund ; the drawee is bound, after notice thereof, to apply the fund, as it accrues, to the payment of the order, and the payee may by action oonipel such application. Brill v. Tuttle, 81 N. Y. 454. 228. Where a draft is drawn generally, to be paid by the drawee in the first instance on the credit of the drawer, the designation by the -drawer of a particular fund out of which the drawee may subsequently be reimbursed, does not convert the draft into an assignment of the fund, and the payee can have no action thereon against the drawee, unless he duly accepts. Brill v. Tuttle, 81 N. Y. 454. 229. Where a particular fund to accrue in future is designated in the instrument, and the language thereof is ambiguous, evidence of the -surrounding circumstances may be resorted to for the purpose of de- termining whether the intention was that the payment should only be 86 MONROE'S DIGEST made out of the designated fund, or whether the direction to pay wa intended to be absolute, and the fund was mentioned only as a means of reimbursement. Brill v. Tuttle, 81 N. Y. 454. 230. A. & Co. being engaged in repairing a house for defendant,, for a valuable consideration, executed and delivered to plaintiffs the following instrument, directed to defendant : " Pay Brill and Russell three hundred dollars, and charge same to our account, for labor and materials performed and furnished in the repairs and alterations of the house in which you reside, in the village of Mohawk." In an action upon the instrument, it appeared that the work was nearly done when the instrument was executed ; the testimony was conflicting as to the amount then due. Previous to its delivery to the plaintiffs, one of them, with the drawer, called upon the defendant and requested him to accept an order for the $300, or give plaintiffs a note or some security therefor, which he declined to do, immediately thereupon the order ia question was given ; this defendant refused to pay or to recognize, Held, that the order did not necessarily require a construction that it was a request to advance the sum specified ; that the direction therein r in connection with the surrounding circumstances, indicated the intent to have been simply to direct payment of such sums as were or might become due to the drawers on the account for repairs, up to the amount specified ; that thus construed, the order was an assignment of so much of the fund ; and that a voluntary payment by defendant to the drawers, after notice of plaintiffs' rights, was in his own wrong, and was no defence. Brill v. Tuttle, 81 N. Y. 454. 231. Under an assignment for the benefit of creditors, the assignee is merely the representative of the debtor and must be governed by the express terms of his trust. In re Lewis, 81 N. Y. 421. 232. An assignment of the property of a debtor, in trust for creditors, executed in the name of the debtor and duly acknowledged by an attorney duly constituted for that purpose, is valid under the act of 1860 (chap. 340 of the Laws of 1860), and effectual to vest in the assignee the title to the assigned property. Lowenstein v. Flaurand r 82 N. Y. 494. 233. The record of an assignment of a mortgage is constructive notice to all persons of the rights of the assignee, as against any sub- sequent acts of the mortgagee affecting the mortgage ; it protects as well against an unauthorized discharge as against a subsequent assign- ment by the mortgagee. Viele v. Judson, 82 N. Y. 32. 234. After the commencement of this action, plaintiff assigned to R. and A. the claim upon which it was brought ; thereafter plaintiff was adjudged a bankrupt and an assignee of his property appointed j judgment was subsequently recovered, and after it was perfected^ plaintiff died intestate, leaving no property, real or personal. No ad- ministrator of his estate has been appointed. Upon notice to defend- ants' attorneys and to the widow and next of kin of the decedent, a motion was made on behalf of R. and A. that they be substituted as- plaintiffs, which was granted ; defendants appealed. On argument at General Term the respondent produced and filed a stipulation of the assignee in bankruptcy waiving notice of motion and all objection to the order. Held, that the order was properly affirmed ; that the court- had a right to proceed without the appointment of an administrator of OF STANDARD DECISIONS. 37 the original plaintiff; also that the stipulation was properly received And considered by the General Term, tichell v. Devlin, 82 N. Y. 333. 235. An assignment of an account may be made by oral agree- ment, without writing, or any written statement of the claim assigned ; jand, if founded on a valid consideration, vests in the assignee a right to proceed in his own name for the collection of the debt. Bisley v. Phenix Bank, 83 N. Y. 318. 236. So, also, an oral assignment for a valid consideration of a portion of a debt is valid. Risley v. Phenix Bank, 83 N. Y. 318. 237. Where, concurrently with the giving of a check for a portion of the amount standing to the credit of the drawer upon the books of defendant, there was an oral agreement between the drawer and payee, by which the former, for a valuable consideration, agreed to assign so much of the indebtedness of the bank to him as was represented by the check, and the check was given to enable the payee to collect and re- ceive the portion of the debt assigned, held, that the check was not the contract between the parties, and so did not render oral evidence of the agreement inadmissible ; and that the parol assignment was sufficient to vest in the plaintiff a title to the portion of the debt assigned. JRisley v. Phenix Bank, 83 N. Y. 318. 238. Plaintiff presented the check, and demanded payment, Jan- uary 4th, 1865, notifying defendant that so much of the claim of the drawer as was represented by the check had been transferred to him; defendant's president promised to pay on presentation by some person known to the bank. On the next daj r when the check was again pre- sented, defendant refused, to pay, on the ground that on the morning of that day the debt had been seized by the United States, in pursuance -of proceedings instituted on that day, under the confiscation acts of Congress. These proceedings were set up as a defence, and on the trial defendant, to sustain the defence, offered in evidence the record of a District Court of the United States, showing that the deposit to the credit of the drawer was attached in proceedings against the estate, property, etc., of the bank of G. (the drawer), on deposit with the de- fendant on January 5th, 1865, and that defendant paid over to the marshal, in pursuance of a decree of said court in such proceedings, the "whole amount of the credit. The assignment to plaintiff was made in May, 1861, before the passage of the confiscation acts. Held, that the record constituted no defence, and was properly excluded ; that if notice to defendant was necessary to complete plaintiff's title, sufficient notice was given the day prior to the seizure ; that the plaintiff was not concluded by the adjudication of the District Court to the effect that the property seized belonged to the bank of G. ; also that the District Court acquired no jurisdiction under said acts to proceed for the for- feiture of a debt owing to a corporation. Risley v. Phenix Bank, 83 N. Y. 318. 239. Defendant, S. E. Reassigned to plaintiff a certificate of stock in a manufacturing corporation " as security for the payment of any demands " plaintiff " may from time to time have or hold against" E. W. H. S. E. H. was the wife of E. W. H., who, at the time the assign- ment was executed, was largely indebted to the plaintiff and was on the verge of actual insolvency. In an action to foreclose plaintiff s lien 88 MONROE'S DIGEST upon the stock pledged, held, that the assignment, by its terms, in~ eluded and secured all demands had and held by plaintiff against E., after its execution, as well as those existing at that time ; and that the circumstances disclosed this to have been the intent of the parties ; also that the assignment was a continuing security ; and that an ex- tension of time, by renewals in the ordinary course of business, granted by plaintiff to E. W. H. for payment of any of the debts, did not dis- charge the lien upon the stock. Mer. Nat. Bank v. Hall, 83 N. Y. 338. ASSUMPSIT. 240. Assumpsit lies only on a claim of ownership. One who has only a mortgage lien on goods cannot bring assumpsit for their value against one who has taken them to satisfy a claim. Randall, et al. v, Higbee, 37 Mich. 40. ATTACHMENT. 241. Property assigned cannot be reached on attachment based on the charge that the assignment was made to defraud creditors, if the property has changed its form. That is, moneys arising from assigned claims cannot be attached, though the claims could have been reached had the attachment been levied before they were changed into money. Matter of Freel, assignee of Foley & Co., 55 How. N. Y. 386. 242. Attachment cannot be issued against a non-resident firm. The statute must be strictly followed. Dobell v. Loker, 1 Handy, Ohio, 574. 243. An order in an attachment suit that a plaintiff has discon- tinued his attachment by taking judgment on the merits without filing" a replication to a plea to the attachment, and striking the cause from the calendar therefor, is a final and appealable order. Hemphill \v Collins, (111.) 7 N. E. Rep. 496. 244. Under the provision of the Code of Civil Procedure (New Code, 682), giving a person having a lien upon property attached,, acquired subsequent to the attachment a right to apply to vacate or modify the writ, he may make application on the ground of the insuffi- ciency of the affidavits upon which the writ was issued. Steuben Co. Bank v. Alberger, 75 N. Y. 179. 245. No authoriy is given by the Code of Civil Procedure to- order, on motion of the attaching creditor, a person holding propertj 7 of one, against whom an attachment has been issued, to deliver it to the sheriff. Hall v. Brooks, 89 N. Y. 33. 246. A debt created by an award made in this state, when debtor resides here, has its status in this state, and cannot be affected by for- eign attachment. Williams v. Ingersole, 89 N. Y. 508. 247. A levy by virtue of an attachment upon a promissory note creates no lien thereon, unless at the time the attachment debtor has a- legal title thereto. Anthony v. Wood, 96 N. Y. 180. OF STANDARD DECISIONS. 39 248. In an action brought by the defendants herein against S. T plaintiff's assignor, and others, an attachment against the property of the defendants was granted upon affidavits making a prima facie case, and upon a full compliance with all the formal requirements, on the ground that defendants were about to assign, dispose of and secrete their property, with intent to defraud their creditors. The attachment was levied upon property of S. The defendants in the attachment suit thereupon moved on affidavits to vacate the writ ; the motion was denied at Special Term, but the General Term, on appeal, reversed the order of Special Term, and granted the motion. Pending the appeal, most of the attached property was sold as perishable, by order of the court. After the vacating of the attachment, the proceeds of the sale were paid over by the sheriff to the plaintiff herein, to whom wa also delivered the property unsold. Held, that the taking of the property was not a conversion ; that the attachment having been lawfully issued, was a complete justification, both to the officer and the party, and it did not cease to be a protection after it was vacated for acts done under it ; also, that defendants, not having received either the property or its value, were not responsible therefor to plaintiff. Day v. Bach, 87 N. Y. 5'6. 249. An averment in an affidavit for an attachment, that " the de- fendant is indebted to the plaintiff in a sum stated," and that the latter " is justly entitled to recover said sum," is not a compliance with the requirement of the Code of Civil Procedure ( 636) that plaintiff must show by affidavit that he " is entitled to recover a sum stated therein, over and above all counterclaims known to him ; " and when the re- quirement is only met by the averments stated, the affidavit is insuffi- cient to give the judge jurisdiction to grant the warrant. Ruppert v. Bang., 87 N. Y. 141. 250. An affidavit upon which an application was based to vacate an attachment averred the issuing of the writ, and that the property of the defendant was attached thereunder ; that subsequently two judgments in favor of the applicants were recovered against the de- fendant, executions issued thereon and " levied upon the property of said defendant." Also, " that the lien of the executions is subsequent to that of the attachment." Held, that the affidavit was sufficient to give the moving parties a standing in court ; that no other inference would be drawn therefrom than that the attachment and executions were levied upon the same property, and that the lien of the executions was acquired after the property was attached. Ruppert v. Hang., 87 N. Y. 141. 251. When a debt has been legally attached, in an action against the creditor, an active duty is imposed upon the debtor, and he is liable when by inaction he allows the attached fund to be removed from his possession. Gibson v. Nat. Park Bank, 98 N. Y. 87. 252. The certification of a check drawn upon a bank by the owner of a fund on deposit therein does not, while the check is outstanding in the hands of the drawer, exempt the fund from the lien of an at- tachment against him levied thereon. Gibson v. Nat. Park Bank, 98 N. Y. 87. 253. Where in an action by a judgment creditor upon an under- taking given to stay proceedings pending an appeal it appeared that 40 MONROE'S DIGEST at the time of the commencement of the action the judgment had been regularly attached at the suit of creditors of the judgment creditor and the attachments were still in force. Held, that the action could not be maintained ; that the undertaking was simply a collateral se- curity for the judgment and passed with it to the sheriff; that it was not necessary to attach the undertaking separately as it was an inci- dent of the judgment, not an independent liability of the sureties. Wehle v. Spellman, 75 N. Y. 585. 254. Upon the thirtieth day after the granting of a warrant of attachment, an order for the publication of the summons in this action was obtained, and it was published on the same day in one of the papers designated ; it was delivered upon the same day to the other paper, but was not published until the next day. Copies of the sum- mons and complaint were mailed to the defendants, as directed in the order, on the day it was granted. Held, (Rapallo, Miller and Earl, JJ., dissenting), that the publication of the summons was not com- menced within thirty days after the granting of the attachment, within the meaning of section 638 of the Code of Civil Procedure (New Code) ; and that the attachment was properly vacated. Taylor v. Troncoso, 76 N. Y. 599. 255. It seems, that a seizure and levy by a sheriff, under an at- tachment against one person, upon the entire property of a firm, as the sole property of the debtor, is not justified by showing that the debtor has an interest in the property as a copartner. Atkins v. Saxton, 77 N. Y. 195. 256. The power of the sheriff, for the purpose of rendering the levy upon the interest of one partner in the copartnership property effectual, to take possession of the whole property, is merely incidental to the right to reach the debtor's interest ; and is to be exercised as far as possible in harmony with, not in hostility to, the rights of the other partners. Atkins \. Saxton, 77 N. Y. 195. 257. When, therefore, the sheriff exceeds this limit ; and, instead of levying on the debtor's interest, levies upon and seizes the property as the sole property of the debtor, he is a trespasser. Atkins v. Sax- ton, 77 N. Y. 195. 258. An attaching creditor cannot defend an action, brought by an assignee of the debtor, for the conversion of a chose in action attached, by showing fraud in the assignment. Castle v. Lewis, 78 N. Y. 131. 259. The M. G. Co., a manufacturing corporation prior to May, 1872, had three trustees, one of whom resigned. One of the others was the treasurer and general agent of the company, having charge of its property and business. The two remaining trustees left a portion of the company's goods with B. & Co. to sell on commission, and sub- sequently, in the name of the company, made an assignment of the goods unsold and of the proceeds of sales in the hands of B. & Co. to A., to secure a loan made by him to the company, and in pursuance of an arrangement made at the time of the loan. In actions brought by an assignee of A. against creditors of the company, who had caused the property and the avails of sales to be levied upon under attach- ments in their favor, defendants claimed the transfer to A. to be void for want of authority, as by the statute ( 1, chap. 269, Laws of 1860, amending chap. 40, Laws of 1848), it is required that such corpora- OF STANDARD DECISIONS. 41 p tions shall have not less than three trustees. Held, untenable ; that the objection was not available in these actions, and defendants were not in a position to raise the same. Castle v. Lewis, 78 N. Y. 131. 260. Upon motion made under the provisions of the Code of Civil Procedure ( 682) giving a person having a lien upon property at- tached, acquired subsequent to the attachment, a right to apply to va- cate or modify it, it appeared that the attorney of the party claiming the lien delivered to the clerk of E. county a judgment-roll, including a sufficient statement in writing to warrant the entry of a judgment by confession in her favor against the attachment debtor ; the clerk did not, in fact, enter the judgment, but delivered a transcript to tlie attorney, which was filed the next day in the office of the clerk of N. county, an execution issued to the sheriff of that county. Held, that the lien acquired by the docket of the judgment in N. count}' and the issuing of execution, upon the personal property of the debtor in that county, was sufficient, until set aside, to confer upon the plaintiff therein the rights of a lienor under said provision. Steuben Co. Bank v. Alberger, 78 N. Y. 252. 261. The grounds upon which a warrant of attachment was issued were, as stated in the affidavit, that the attachment debtor was " about to assign, dispose of, or secrete his property with intent to defraud his creditors." All of the material facts were stated on infor- mation and belief only ; it was not shown that the persons from whom the affiant professed to have obtained his information were absent, or that their depositions could not be procured. Held, that the affidavit was insufficient to give the court jurisdiction to issue the attachment ; and that the order granting it was reviewable here. Steuben Co. Bank v. Alberger, 78 N. Y. 252. 262. The provision of the National Banking Act (U. S. R. S., 5242) prohibiting the issuing of an attachment, injunction or execu- tion against such an association or its property before final judgment, applies only to an association which has become insolvent or to one about to become so, as specified in the preceding part of the section. 81 N. Y. 385. 263. Where equity action to restrain suit on undertaking given to discharge attachment, is not maintainable. Kelly v. Christal, 81 N. Y. 619. 264. In an action against a national bank organized in another state, an attachment may be issued against the property of the de- fendant in this state. Robinson v. Nat. Bank of Newberne, 81 N. Y. 385. 265. Builder's lien is, held, not to have attached where a builder took real security for payment of the work which he was to do, and afterwards the work being all done, gave it up and took a mere note. Grant v. Strong, 18 Wall. U. S. 623. 266. The rule prohibiting the splitting up a single demand and bringing .separate actions at law, has no application to proceedings to vacate an attachment. Steuben Co. Bank \. Alberger, 83 N. Y. 274. 267. Where a surrogate has made a decree for the paj'ment of money by an administrator, he may enforce the performance of it by attachment. (2 R. S. 221, 6, sub. 4). Dunford v. Weaver, 84 N. Y. 445, 42 MONROE'S DIGEST 268. A mere levy under an execution upon property which has been attached is not such an " actual application of the attached prop- erty or the proceeds thereof to the payment of a judgment recovered in the action," within the meaning of section 682 of the Code of Civil Procedure, as will bar a subsequent lienor of the right to move to vacate the attachment. The section means an actual and real applica- tion as distinguished from a constructive one. Woodmansee \. Rogers^ 82 N. Y. 88. 269. It seems that the only way to subject a judgment to an at- tachment is to serve the warrant upon the judgment debtor. In re Flandrow, 84 N. Y. 1. 270. In an action upon an undertaking, given to discharge an at- tachment, conditioned to pay any judgment recovered by the attach- ment creditor, it appeared that the attachment debtor, within four months after the issuing of the attachment, filed his petition and was- thereupon adjudicated a bankrupt and made an assignment ; he then applied to the bankruptcy court to stay proceedings in the action in which the attachment was issued ; this was denied, and judgment was recovered. Held, that the proceeding in bankruptcy was no defence, as there was at the time no attachment lien or attachment in force upon which the proceeding could operate ; and that neither the letter nor the policy of the bankrupt act was infringed by holding the de- fendants liable. McCombs v. Allen, 82 N. Y. 114. ATTORNEY. 271. The acts of an attorney in directing the levy upon or taking of goods upon process are in excess of his general powers as attorney,, and in the absence of special authority, do not subject his client to* liability. Welsh v. Cochran, 18 Sickels, N. Y. 181. 272. An attorney who purchases of a client a claim which is the subject of litigation, in case the propriety of such purchase is ques- tioned, is bound to show the perfect fairness, adequacy, and equity of the transaction. Dunn v. Record, 63 Me. 17. 273. Attorney-at-law cannot recover for professional services,, without proof of the qualifications required by statute; evidence that he is a practicing lawyer in this State is not sufficient, but he may recover disbursements. An objection, upon this ground, to his right to recover, is not too late, when taken after the argument, but before the charge of the judge. Perkins v. McDuffee, 63 Me. 181. 274. Where an attorney-at-law agrees to prosecute a suit or claim for one-half of whatever judgment is recovered, if no judgment is re- covered he will be entitled to no compensation, when the failure to re- cover is not the fault of the client. Fraatz v. Garrison, et al., 83 111. 60, 275. A general retainer does not authorize an attorney to settle or adjust claims, or to alter the terms of a contract made by the client. Pickett, et al. v. Merchants' Nat. Bank, Memphis, et al., 32 Ark. 346. 276. An attorney, in fact, can not bind his principal as surety, unless he is specifically authorized to do it. State ex rel. Merchant v. Daspit, 30 La. 112. OF STANDARD DECISIONS. 4& 277- A stipulation in a promissory note for the payment of a cer- tain sum as attorney's fees, if suit is commenced thereon is valid, and may be enforced in an action on the note. Danforth v. Charles, et al. r 1 Benn. Dakota Reps. 285. 278. The rule requires that the entire professional intercourse be- tween client and attorney, whatever it may consist in, should be pro- tected by profound secrecy. The exemption is not confined to advice given or opinions stated, it extends to facts communicated by the client all that passes between client and attorney in the course and for the purpose of business. The privilege is for the client and not for the attorney. The interests of justice and the protection of private rights demand the strictest confidence and privacy in this situation. Lengsfield, et al. v. Richardson, et al., 52 Miss. 443. 279. A power of attorney authorized the donee to take possession of real estate by himself or by a person in his confidence, to cultivate it, to sell it, to exchange it or to alienate it. He indorsed it to A. by a writing, stating : " I transfer all my powers in favor of A. in order that in my name and as my attorney he may take possession," etc. Held, that the indorsement only gave the power to take possession, but no power to sell. Williams v. Conger, 125 U. S. 397. 280. An authority to an attorney to collect interest on a mortgage- does not authorize him to collect the principal. Brewster v. Games, 103 N. Y. 556. 281. The attorneys of the parties to an action are author- ized to stipulate as to referee's fees. Such a stipulation is " the consent of the parties * * * in writing," within the meaning of the Code of Civil Procedure ( 3296). Mark v. City of Buffalo, 87 N. Y. 184. t 282. The title of an attorney purchasing property at a judicial sale decreed in proceedings in which he acted as an attorney, falls by the law of California, with the reversal of the decree directing the sale, independent of defects in the proceedings ; and conveyances after such reversal pass no title as against a grantee of the original owner of the property. Gulpin v. Page, 18 Wall. U. S. 350. 283. A power of attorney to sell and convey real property,, given by a husband and wife, in general terms, without any provision against a sale of the interest of either separately, or other circum- stance restraining the authority of the attorney in that respect r authorize a conveyance by the attorney, of this interest of the hus- band, by a deed executed in his name alone. Holladry v. Daily, 19 Wall. (U. S.) 606. 284. Attorney-at-law cannot be charged with negligence when he accepts as a correct exposition of the law, a decision of the Supreme Court of his state upon the question of the liability of stockholders of corporations of the state, in advance of any decision thereon by his court. March v. Whitmore, 21 Wall. U. S. 178. 285. Defendant commenced an action in the Marine Court of New York City against plaintiff to- recover a deposit, which was also claimed by another party. In that action costs of appeal from an order had been awarded defendant. Plaintiff thereupon commenced this action for an interpleader and procured a temporary injunction restraining defendant, her attorneys, etc., from further prosecuting or carrying on. 44 MONROE'S DIGEST the former action, or from taking any steps to recover said deposit. German Sav. Bank v. Hotel, 80 N. Y. 273. 286. Defendant's attorney thereafter issued a precept for the col- lection of the costs. In proceedings to punish said attorney for con- tempt, held, that the injunction did not prohibit the collection of the costs, and that the attorney was justified in issuing the precept. Ibid. 287. Attorney -a t-law is forbidden to purchase an interest in the thing in controversy adverse to his client. Cunningham v. Jones, 37 Kan. 477. 288. Tax deed made to attorney-at-law is void, if the owner of the land was a client of such attorney at the time. Ibid. BAILEE. 289. The voluntary relinquishment by the bailee of possession of the subject of the bailment discharges his lien unless it is consistent with the contract, the course of business, or the intention of the parties, that it should continue. Spaulding v. Adams, 32 Me. 212 ; also, Danforth v. Pratt, 42 Me. 52 ; and Robinson v. Larrabee, 63 Me. 116. 290. The forfeiture of a lien claim, when once incurred, is not waived by a subsequent arrangement between the parties, whereby the bailee resumes the custody of the subject of the bailment, unless such was the intention of the parties. When the bailee has parted with his possession, the presumption is that he has waived or abandoned his lien, unless his conduct, in so doing, is satisfactorily explained. Robin- son v. Larrabee, 63 Me. 116. 291. The finder of a bank note, as against a bailee, without re- ward, to whom he delivers it to be kept for the finder, has such a pos- sessory interest in the note as entitles him to recover the same of the bailee, on his refusal to redeliver to the finder upon his request, and in the absence of any claim of the rightful owner made known by him to such bailee. Such bailee is not bound to use as great care and diligence in the keeping of the note as he would be if he were a bailee for com- pensation ; and if the note was stolen from his possession, he will not be liable for it unless the loss was the result of gross negligence on his part. In such a case, to entitle the plaintiff to recover, he must show that the note was a genuine note and of the value he claimed. Tancil v. Seaton, 28 Grattan (Va.) 601. 292. A man dressed as a police officer told the cashier, in presence of a watchman of the bank, that he had been directed by the lieutenant of the police to warn him that there were " suspicious characters about ; " the cashier told the watchman to admit no one, but he made no inquiry of the lieutenant. After the bank was closed, there then being another watchman there, the first was called from outside by name ; he opened the door ; a man dressed as a policeman and two others in ordinary dress came in ; they overpowered the watchman, OF STANDARD DECISIONS. 45 took securities, etc., from the vault including plaintiff's, deposited for safe keeping, and kept as the bank's securities. Held, the bank being a voluntary bailee, without reward, the evidence was not sufficient to charge them with negligence. De Haven v. Kensington Bank, 81 Penn. St. 95. 293. Actual delivery by the bailee on the demand of the true owner, who has the right to the immediate possession of the goods bailed is a sulllcient defence of the bailee as against the claim of the bailor, and there is no difference in this regard between a common carrier and bailees. The " Idaho," (30th) IT. S. Repts. 93, 575. 294. The statutes of Louisiana prohibit the issue of bills of lading before the receipt of the goods ; but they do not forbid cureing an ill- egal bill by supplying goods, the receipt of which has been previously acknowledged. Tfie "Idaho," (30th) U. S. Repts. 93, 575. 295. A gratuitous bailee of money to whom it is given foj the pur- pose of lending it on good and sufficient security, and who, lending it to a person on property worth much more than the sura, and taking a properly executed mortgage, delivers the papers to his principal without having placed them on record, is not responsible for a loss occurring after the efflux of the term for which the money was lent r by non-recording of the papers; the owners of the security having had abundant opportunity to have them recorded himself. Turton v. Dufies, 6 Wall. U. S. 420. 296. A bailee, converting goods on which he has bestowed labor and acquired a lien, may, in an action of trover brought by the owner, set up his lien claim in reduction of damages. Longstreet v. Phila., 39 N. J. Law, 63. 297. A receipt, in the words following, imports no legal liability of the signer thereof, and no action can be maintained upon it without evidence aliunde : " Received from H. N. Peden one letter envelope, sealed, and said to contain two hundred and ninety dollars." But if it be shown by other evidence that the money was received as a bail- ment a recovery may be had upon the receipt. And in such case the receipt constitutes a legal liability, and is assignable, under sections 670 and 2228 of the Code of 1871. Hunt and Vaughn, v. Shackleford, 55 Miss. 94. BANKRUPTCY. 298, In an action against trustees of a savings bank for negligence in the discharge of their duties, two of the defendants, after the com- mencement of the action, filed petitions for their discharge in bank- ruptcy and were discharged before judgment. Held, that such a dis- charge was not a defence to the action, as the claim, being for unliqui- dated damages occasioned by a tort, was not provable in bankruptcy and therefore not discharged, Hun v. Gary, 82 N. Y. 65. 299. To prevent a debt from being discharged in bankruptcy on account of power of bankrupt in creating it, the debt must be tainted with fraud in its inception. If the contract was fair and honest when made, although the debtor may subsequently be guilty of fraudulent 46 MONROE'S DIGEST conduct in respect to it, yet such conduct does not destroy the benefit of the discharge. Brown, et al. v. Broach, 52 Miss. 536. 300. When the principal debtor is adjudged bankrupt, a failure by the creditor to present his claim for a dividend does not release the security. Clopton v. Spratt, et al., 52 Miss. 251. 301. A discharge obtained under the insolvent law of one state is not a bar to an action on a note given in and payable in the same state ; the party to whom the note was given having been and being of a different state, and not having proved his debt against the de- fendant's estate in insolvency, nor in any manner been a party to those proceedings. Baldwin v. Hale, 1 Wallace, 223. 302. Under the Act of Congress of 1874 (Chap. 390, Act of 1874), authorizing a discharge of a bankrupt by composition between him and hie creditors, no debt is barred by a composition which would not have been barred under the Bankrupt Act. Argall v. Jacobs, 87 N. Y. 110. 303. A debt, therefore, " created by the fraud of the bankrupt," {IT. S. R. S., 5117), is not barred by a composition and discharge. Argall v. Jacobs, 87 N. Y. 110. 304. To avail himself of the exception in the Bankrupt Act, a creditor is not bound to base his action upon or to set up the fraud in his complaint. He may sue upon the debt or upon notes given therefor, and if the composition and discharge is set up as a defence, he may meet it by proof of the fraud : and this without servinga reply, unless a reply has been directed by the court, as provided by the ode of Civil Procedure ( 516). Argall v. Jacobs, 87 N. Y. 110. 305. Tbe " fiduciary capacity " in the provision of the Bankrupt Act, which excludes from the protection of a discharge debts con- tracted in that capacity, relates to cases of technical trust, not to such as is implied by the contract between principal and agent, and the " fraud " intended by the same provision is an active or express fraud, as distinguished from an implied or constructive one. Palmer v. Hussey, 87 N. Y. 303. BANKS. RIGHTS, DUTIES AND LIABILITIES OF BANKS. 306. Banks are generally creatures of statutory law, and when so, are corporations. As such they owe their existence to, and derive their rights from, the statute ; and they are confined to the powers ex- pressly given them by their charter, or by the statute under which they are operating, or to such powers as are necessary to the proper exercise of those expressly given. 307. When the act gives power to a body of men to do a banking business, it can carry on no other business, yet certain rights become inherent in the corporation to enable it to carry on the banking busi- ness, and all acts done by it as a corporation, not specially delegated to it, and not inherent in it to enable it to carry on the banking business, are illegal. OF STANDARD DECISIONS. 47 308. It has the inherent power to borrow money, but the borrow- ing must be done to enable it to carry on its legitimate business. This power is not usually given by the statute, it follows as one of the in- herent rights ; and, if the borrowing is for the purpose of speculating, or to invest in property not necessary for its business purposes, it is illegal. Barnes \. Ontario Sank, 19 N. Y. 152. 309. The term often employed by a banker in the business of banking in the one hundred and tenth section of the Revenue Act of July 13th, 1866, does not include moneys borrowed by him from time to time temporarily in the ordinary course of his business. It applies only to property or monej's of the banker set apart from other uses, and more permanently invested in the business. Bailey, Collector v. Clark, et al., 21 Wallace U. S. 284. The question may arise, how is the bank to borrow money to use in its business? Only the board of directors have the right, or are the proper parties to authorize the cashier or the president, or both, to borrow the money. Where the power is delegated to the two, one of them has not the right to execute paper for the loan, and it will be invalid, except in the hands of innocent holders for value. Ridgeway v. Farmers 1 Bank, 12 S. and R. (Pa.) 256. Matthews v. Mass. Nat. Bank, U. S. Circuit Court, District of Mass. ; decided 1875. 310. As a corollary to the above, the bank has a right to buy real estate for banking purposes alone; this embraces, of course, land to erect a banking house upon, also to take mortgages or other security upon real estate to secure debts owing to it that are past due ; and, in order to save itself, it has the power to buy the real estate so pledged in order to secure the debt, or to take the absolute title in the first instance to secure a precedent debt. And when it takes real estate in either of these ways, it has the right to sell and convey the same. But it has no right to buy and deal in real estate for purposes of specu- lation or investment. Metropolitan Bank v. Godfrey, 23 111. 579. 311. Should it purchase real estate, however, for such unauthorized purpose, and the purpose be made to appear upon the face of the con- veyance, the deed being taken to the bank in its corporate name, it would probably be held totally inoperative and to be absolutely void, upon the ground that the illegal object being shown on its face the in- strument would be inoperative to pass the legal title. There would seem to be no doubt, however, of the right of the bank, in such case, to recover from the vendor the money paid him for the land. When the instrument does not show on its face the unauthorized purpose, the legal title would pass; and if the vendor could be allowed to avoid it, on the grounds of public policy, which is by no means clear, it could only be upon a return of the purchase money. In case the conveyance was not set aside, either on the application of the vendor, if he have such right, or upon a proceeding by the state to annul the charter for this violation, the real estate would be the property of the bank, not to be used, however, for the illegal purpose, but should be sold by it, for the purpose of appropriating the proceeds of the sale to the legitimate business of the bank. 312. When the power is given in the charter of the bank to buy and sell real estate, it must be construed to be the right to buy and hold for the purposes above set forth, and sell and reinvest for the pur- 48 MONROE'S DIGEST poses above set forth, and for no other ; otherwise, while ostensibly it is a bank, it nevertheless becomes a corporation to speculate in lands. 313. Generally speaking, the bank has no right to do anything that is not strictly within its charter powers or inherent therein, yet when it makes a contract which is largely beyond its powers, as, for instance, loaning more money to the directors than the charter permits, where the debtor received the consideration the bank has the right to enforce the debt, and the debtor cannot set up this want of power by the bank as a defence when he is sued on a contract. Only the state can complain, and in a proceeding for that purpose. Hughes v. Bank of Somerset, 5 Litt. (Ky.) 45. 314. One of the principal rights of a bank is to make discounts. This right is given by its charter of incorporation, or is inherent where it is omitted in the charter, or the bank is a private one. This can be exercised only through its board of directors, who alone are authorized to make discounts. They have no right to delegate this power, for this duty and trust is personal to the directors. And in making dis- counts, the bank has a right to retain the interest in advance, though it may be more than the rate allowed by law on the sum actually used, for this is the technical meaning of discount the taking of legal inter- est in advance, or rather more technically speaking, the withholding the interest. 315. And where power is given a bank to discount notes, it does not follow that they have the right to buy notes at a usurious interest. The right of buying notes is an entirety distinct power, and may or may not be given by the charter of the bank. If it is given, its mean- ing is that the bank has only the right to buy the notes for their fair market value. It must be a bona fide transaction of bargain and sale. If it is resorted to to cover up usury, it will be treated as an usurious contract. Morse on Bank and Banking, p. 20. 316. A bank has no right to take usury in any way. It has a right to charge a commission for making collections, or exchange for selling drafts, and it will not be deemed usury if the transaction is bona fide, and is really a commission or exchange. Bank of United States v. Davis, 2 Hill, N. Y. 457. 317. The bank has a lien upon and a right to hold all moneys and funds in its hands belonging to its depositors to secure or pay any balance due from him ; also to hold all paper received from its cus- tomer for collection, for the same purpose. This right only exists where the customer depositor is also the debtor of the bank the relation must be mutual. The party owing the bank, and against whom it claims the lien, must also be the identical party who owns the deposit, and all funds or notes or other paper coming into the possession of the bank while their relation subsists can be held by the bank to enforce this lien. Lcese & Martin, 17 Equity cases (England), 224; decided 1873. 318. If A is a partner with B, and a depositor with the bank, and the bank should have a claim against A and B, it could not claim a lien on the balance to A's credit to pay the debt due from A and B. This illustrates the relation that has to exist before the lien attaches. And again, the lien does not attach to securities placed in the hands of the bank to secure a special debt of the depositor, unless the deposi- tor should allow the securities to remain uncalled for, and to his general OF STANDARD DECISIONS. 49 credit, after the debt is paid for which they were originally pledged, and the bank has no right to detain them after proper demand is made therefor, provided, of course, the demand is made at the time the debt is paid. Ibid. 319. The bank has the right to detain only the balance to the de- positor's credit, or notes held for collection to his general account ; and this right does not extend to special deposits of any kind unless pledged to pay the debt ; nor to any property of the depositor of which the bank may become possessed by mistake or casualty, or otherwise than by the consent of the depositor. Ibid. 320. Where the depositor owes the bank several demands, the bank may set off the balance to his credit to any one of the demands it may select. (State Bank v. Armstrong, 4 Dev. 519). But the bank has no right to claim the lien, or to make the set off, until its depositor's de- mand is due ; for instance, if the bank should become possessed of a demand against its depositor which was not due, it could have no right to hold any balance that may be to his credit. In case, however, of the insolvency of the depositor, it is very probable that a court of equity would permit the bank to retain out of the balance to his credit a suffi- ciency to meet the demand when it does fall due. Ibid. 321. In one case it has been held that where the depositor died 'and his estate was insolvent, that a court of equity would allow the bank to withhold funds to his credit to pay a note not then due. Whether a court of equity would order a full or only pro rata distribution in favor of the bank is beyond the scope of this article to discuss. Ibid. 322. Even when the note falls due the bank is not compelled to set apart at once from the depositor's balance sufficient to pay the same ; it can hold the note or demand, and has a right to set apart or hold funds, to pay same at any time. And all the time after its maturity the note or demand will bear interest. But it would seem to be the more proper course for the bank upon the maturity of the demand, to pay the same from the funds of its depositor in its possession. Ibid. 323. The bank has no lien on boxes and contents of the same, left with it by its depositor for convenience. 324. And where the depositor leaves certain securities with the bank to secure the payment of certain specific notes or bills, and they are paid, and the securities are not withdrawn, and should the deposi- tor die or become bankrupt, the bank has the right to hold the securi- ties against the representative of the depositor, to reimburse itself for other bills or general balance due from the decedent or bankrupt. Prov. Assurance Go. v. Nat. Bank, 14 Equity (England), 507 ; decided 1872. 325. And where the depositor is a member of a firm which has an account with the bank, and keeps also an individual account in the same bank, it has no right to confuse the two accounts; nor where lie keeps an account both individually and as trustee, has the bank the right to retain the balance due to him in one capacity to pay a debt due from him in the other ; and should the bank allow the depositor to transfer the balance due him as trustee, and place it to the credit of his individual account, the bank, as well as the faithless trustee, would be liable to the beneficiary for the conversion of the trust property. 4 50 MOKEOK'S DIGEST Of course the bank must be cognizant of the fact of the misappropria- tion of the trust fund, before it will be bound to the beneficiary. Ibid. 326. A bank, it has been held in a well considered case, has the right to refuse to transfer shares of stock of its stockholder, where it has any lien thereon, until the lien is discharged, and that, too, although the shares belong to an individual partner, and the debt is a firm debt though the bank may have a balance in favor of the firm at the time of its refusal to make the transfer. Mechanics 1 Bank \. Earle, 4 Rawle, Penn. 384. 327. And where the by-laws of the bank forbid the transfer of its stock, while the owner is indebted to the bank, and the owner does transfer it to another to enable the transferee to obtain a loan or dis- count on the strength of the stock, and he so obtains the loan from that bank, the stock will be liable for the debt of the transferee. Burford v. Grandell, 2 Cranch, 86. 328. But where the statute of the State gives the bank a lien on its stock for whatever its depositor and owner of the stock may owe the bank, all parties are bound to take notice of the lien ; and should the stockholder, while indebted to the bank, make an assignment of his stock, though to a party for value and ignorant of the indebtedness to the bank, or of the fact the law gives the lien, yet he will take the stock subject to the lien. Union Bank v. Laird, 2 Wheaton, 390. 329. Also, where the depositor dies, having a balance on the books of the bank to his credit, and owes the bank on a judgment and also on a contract not in a judgment, the bank has the right to sell off his balance against the contract debt, and thus secure whatever advan- tages the judgment lien may give it on other property of the depositor. State Bank v. Armstrong, 4 Dev. N. C. 519. 330. Where a bank had a mortgage on real estate to secure general balance due from its depositor, and who died considerably in debt to the bank with the debt thus secured, and who had given, by will, power to his executors to charge his real estate for the benefit of his personal property, and the executor had largely increased this indebtedness to the bank by using funds in various improvements, and for the expenses of the widow ; and where the real estate mortgaged to the bank proved insufficient to pay the debt, the court held that the bank had the right to prove the balance of its debt remaining after the sale of the mortgaged premises against the general estate of the decedent. Farhall v. Farhall, 12 Eng. Law Rep. 98; decided May, 1871. 331. Where a customer has two accounts at two different places, one at the mother and the other at a branch bank, and has a balance to his credit at one bank, but his account is overdrawn at the other, the bank has the right, in the absence of a special agreement, to trans- fer sufficient funds from the account where there is a balance to make good the other and overdrawn account, and in this way be protected in not paying the check of the depositor drawn against his balance in the bank where his account is good. Garnett v. McKewan, 8 Exch.(Eng.) 10 ; decided in 1872. 332. The question is not raised in this case whether the bank would Iiave the right to make this transfer if it had agreed, on opening the two accounts, to keep them entirety distinct. Ibid. 333. One of the chief conveniences banks are to a business com- OF STANDARD DECISIONS. 51 munity, is to have a well-known and designated place where bills and notes can be made negotiable and payable, and it is the custom of busi- ness men to have all their paper made payable at the banks where they deposit. When such a bill or note is presented to his bank, made or -accepted by him, unless he has forbidden the bank so to do, it has a right to pay the same out of any balance the depositor may have to Ms credit, and will be protected in so doing ; for the bank will have a right to presume that the depositor so intended that his note or accept- ance should be paid by his bank, at its maturity, without further in- structions from him, otherwise he should not have made his paper negotiable at the bank, or should have given instructions to his bank. Even should it be that the depositor had a good set-off to the paper so paid by the bank, yet it would be protected in paying it, unless the de- positor informed the bank not to pay it. In fact, it is the duty of the bank to pa} r negotiable paper of its depositor made payable at his bank, and if the bank should fail to pay it, unless so instructed by the de- positor, it would be liable in damages, should any follow. Mandeville v. Union Bank, 9 Cranch, 9. 334. In Wood & Co. v. Merchants' Savings Loan and Trust Co., 41 111. 267, the Court held, in a case where a note of its customer was made negotiable and payable at the bank where the drawer kept his account, and where the note was held by a third party, that the bank had no right to pay it unless specially instructed so to do. But if the note belongs to the bank it has a right to pay it out of the funds of its customer the drawer of the note without any special instructions, and the bank can appropriate sufficient funds of the drawer to pay the note. The rule is this : where a note of its customer is made payable at the bank, and is held by it, it has the right to pay it, out of his funds, or even to charge it to him, where he has not the funds on hand; tmt where the note is held by a stranger, it cannot do so without special instructions. 335. The ordinary relation existing between a bank and its cus- tomer, if not complicated by any further transaction than that of the -depositing and withdrawing of moneys by the customer from time to time, is simply that of debtor and creditor at common law. Morse, p. 25. 336. So, before the bank can be made a debtor to its depositor, the depositor must give it a full consideration ; that is, must deposit to his credit coin or notes received by the bank as money, and which are entered to his credit as so much money. 337. And if the bank has given a depositor credit on forged paper, on counterfeit notes or coin, there is no consideration received by the bank, and it has a right to cancel the credit. But where the credit was given on counterfeit or forged notes of the same bank where the deposit was made, and a reasonable time has elapsed for the bank to examine the notes and it does not repudiate, it has no right to cancel the credit, for the bank is supposed, nay, bound to know the genuine- ness of its own issue. The same is true where credit is given to one depositor on a forged check of another depositor of the same bank. Yet, even in this case, though the bank should enter credit for its own counterfeit issue, it has a right to cancel it, provided it is done at once, a very short time will be too late ; the next day will be too late. Bank 52 MONROE'S DIGEST of United States v. Bank of Georgia, 10 Wheaton, 342; Gloucester Bank v. Salem Bank, 1 7 Mass. 33. 338. A depositor cannot maintain an action against a bank, with- out a previous demand by check or otherwise. Doanes v. Phoenix- Bank, 6 Hill, N. Y. 297. 339. Where the dealings between a bank and a customer were entered in a single account, the latter being credited therein with the proceeds of notes discounted, with drafts accepted, and moneys de- posited; and when, in accordance with the uniform custom of dealing, indorsed notes of the customer discounted by the bank were charged to his account as they matured, without protest, and were thereafter surrendered to the maker, held, that this was a payment, and that a mortgage securing the payment of the notes was thereby discharged. Crocker v. Whitney, 71 N. Y. 161. 340. Where parties seek to negotiate loans from a bank, it is the right, nay, the duty of the bank, to investigate the title and true ownership of stock certificates which are offered as collateral security for the loan, especially if the parties are not known to the bank, so as to satisfy itself beyond question that the party offering the certificate of stock has a perfect right to do so. 341. Certificates of stock are not negotiable like promissory notes,, and possession in hands of innocent holders even does not confer title, in case they have been stolen from the true owner or altered as to the amount they represent. The above is laid down as the true principle governing such certificates by Hon. I. R. Redfield in a note to Matthews- v. Massachusetts National Bank, as reported in March number, 1875, of Am. Law Register, and is well supported by authorities. 342. Mr. Morse says : " The old rule of law was, that a corpora- tion could do no act save by a deed executed under its corporate seal. But this ancient principle has of late years been done away with by the compulsion of the practical necessities of business. But the simple truth is, that the elastic expansion of modern business has irrevocably snapped the clumsy and useless ligament, which older generations found less intolerable." And as the results of this " elastic expansion " most of the acts of banks are now done by its agents. 343. These agents, known as officers of the bank, have each his name, which of itself designates his duties ; and his duties are separate and distinct from those of the other officers. These several officers or agents are appointed by the directors ; and when an agent is properly intrusted with the duties of his office the bank is bound by all his acts and words when within the line of his duties. When the question of the liabilities of banks is discussed, this point will be more enlarged upon. And although certain specific duties fall to each officer, yet the bank, through its directors, has the right to restrict or enlarge his special duties; but if the directors exercise this right, any change from duties usually performed by such officer must be brought home by actual positive proof, showing that the party was aware of the re- striction, before he can be affected by it. A party dealing with the bank has the right to presume that its officers have the powers usually exercised by similar officers in other banks. Stagg v. Elliott, 12 C. B. N. S. 373. 344. And as a corollary to the above, as will be discussed here- OF STANDARD DECISIONS. 53 sifter, the bank is bound by knowledge of a fact on the part of the officer whose function includes the business to which the fact relates, but it is not bound to take notice of a fact which comes to'any other officer whose business or duties do not embrace the matters to which the knowledge refers ; for instance, knowledge by a clerk of residence of an indorser, or of pendency of a suit against the bank, is not knowl- edge on part of the bank, as it is not the duty of the clerk to attend to such matters. So a bank has the right to repudiate the act of its officer when the act is one which the officer could not legally do, or which could not be legally delegated to him by any kind of formality even by the directors even should a third party suffer by the repudiation ; as every person is presumed to know what functions or duties it is in the power of each officer to perform, as it is a part of the law of the land. For instance, should a clerk certify a check when the drawer has no funds, this act the bank can repudiate, for it was not the duty of the clerk to certify checks at all, and he could not bind the bank when the drawer had no funds, unless the bank was in the habit of permitting this clerk to certify checks. Lloyd v. West Branch Bank, 15 Penn. 172; Godloe v. Godley, 21 Miss. 233. 345. As above stated, the bank has a right to devolve special duties upon any one or more of its officers, and the acts of said officers, within the line of this special conferred power, will be valid for in- stance, the directors can give power to its president or cashier to borrow money and to execute the necessary papers therefor, and, if necessary, to mortgage real estate for this purpose. Leggett v. New Jersey Banking Company, 1 Saxt. (N. J.) 541 ; Burrill v. Nahant Bank, 2 Mete. Ky. 163. 346. And it has the right to repudiate any loan made to it, or its directors, or its officers, for any improper purpose for a purpose which a bank has no right to engage in provided, the party making the loan had knowledge of the illegal purpose for which the loan was made. Bank of Kentucky v. Schuylkill Bank, 1 Par., Sel. C. 180. 347. In a case of emergency, where it is manifestly for the interest of the bank, it can, by its proper officers, make a compromise of a bad debt, or even sacrifice some of the bank's property, and when any one of its officers is in arrears, a compromise can be made with him. The above fall to the province of the directors. Frankfort Bank v. John- son, 24 Maine, 490. 348. As it will be discussed in its proper place the liabilities of banks for the acts of its officers, when performed within the line of their duties it is proper to say here, that the bank has a right to as- sume, as toward its officers, that they know what their respective duties are, and that they are acquainted with all the facts, which they would have known had they attended to their duties properly ; it can assume that every director knows that the cashier cannot part with the paper of the bank, without consideration therefor ; and they have a right to hold, where a director takes the bank paper, or other prop- erty, when the officer parting with it had no right to use it, that the director is not an innocent holder. Gillet v. Phillips, 3 Kern, 114. 349. And a bank can repudiate the acts of its officers which do not fall within the line of their duties. Ibid. 350. It can also repudiate its own bills, if they are stolen and put 54 MONROE'S DIGEST into circulation in a partially unfinished state, only needing the signa- ture of the president to make them possess all the requisites of genuine bills ; for, before they can be circulated, the signature will have to be forged. And although, in such case, these bills will ap- parently be genuine, yet the bank will have the right to refuse to pay them. Salem Bank v. Gloucester Bank, 16 Mass. 1. 351. So, when a director or other officer of the bank becomes guilty of malfeasance or any act transcending his authority, or in violation of any rights of the bank, the corporation has a right, and it also becomes its duty, to enforce a claim it thus has against him, and this claim be- comes part of its assets, and which it must push with vigor, even as when seeking to recover any of its other assets. Bank Commissioners v. Bank of Buffalo, 6 Paige, 497. 352. And when a director or officer makes any fraudulent or false representation, as to its stockholders, the solvency of the institution or the value of the shares of stock, the bank is not bound by the declara- tions, even though they were made by the officer while in the discharge of his duties and during banking hours ; for it is not part of his duty to make such statements, and the bank does not hold him out as pos- sessing authority to do so. The party who relies on such statements must do so on the individual responsibility of the officer or director who makes them. 353. But where the bank in its corporate capacity, in a statement or report designed to be official, over the signature of its regular officers, should make representations that are false, it is bound to any one who may rely thereon. Gullen v. Thompson, 9 Jurist, N. S. 85. 354. Should it appear that the bank in this official way puts forth false representations as to its condition, it is doubtful whether the directors can be held individually bound for any resulting damages ;, the corporation, it would seem, is alone bound, and cannot avoid the liability. Yet, if the directors should make the representations with the intent to deceive the plaintiff who claims to have suffered damage,, and the proof is clear, they can be held individually. Mabey v. Adams, 3 Bosw. 346. 355. The directors are elected from the stockholders, and usually the largest stockholders are chosen, persons most interested in the prosperity of the institution. The duties of the office usually do not require much of their time, and it is rendered gratuitously, and the bank is under no obligation to compensate them for services, unless a special contract to that effect was made. Loan Association v. Stone- metz, 29 Perm. 534. 356. But where a director renders services for the bank wholly outside his ordinary duties as director, at the request of the board of directors, and which he is not bound to do as director, he can recover for such services. Chandler v. Monmouth Bank, I Green, 255. 357. A bank can repudiate a transfer of its funds, by its corre- spondent, when made to pay the private debt of its officers, even though it be the president. Of course the correspondent must have been privy to the illegal use of the money. Reed v. Bank of Newburgh, 6 Paige r 337. 358. But if the bank deposited its money so carelessly that the bank of deposit is misled into thinking the fund belongs to the presi- OF STANDARD DECISIONS. 55 dent, then it will be protected in the payment, and the other bank must suffer the loss, which was brought about by its own carelessness. Fulton Bank v. New York and Sharon Canal Co., 4 Paige, 127. 359. As before stated, each bank has its officers to transact its- business, and the official name of each officer usually designates the peculiar duties he has to perform. The president can represent the bank and bind it in many transactions, but they must be within the line of his ordinary duties and powers, or the bank will have a perfect right to repudiate the same. The Supreme Court of Massachusetts, as reported in case Foster v. Essex Bank, 11 Mass. 479, held, 1. That a bank president has no right to agree to receive deposits of money on interest, it not being the part of the ordinary business of that bank to do so. 360. Nor, 2. Can the president charge the bank with a greater liabilit}' for the safety of a special deposit than it was wont, ordinarily, to undertake ? 361. Same principal will apply to undertakings on the part of the cashier or other officer. To further illustrate : Should the clerk or bookkeeper receive a deposit or subscription for stock, the bank is not bound for, and has the right to repudiate the same, as the clerk and bookkeeper are not the proper officers to receive deposits or subscrip- tion of stock. But if the bank has permitted these officers to do these acts, although not strictly in their line of duties, yet the bank cannot avoid the liability. Manhattan Co. v. Lydig, 4 Johns. 377. 362. And should the clerk or bookkeeper receive deposits of money , and had not been in the habit of doing so, or the bank did not know of or ratify the act, and the money is embezzled by the clerk or book- keeper before it was actually placed to the credit of the depository the loss will be that of the depositor ; for, by giving his money to this officer, he makes him his own agent. 1 Wallace, U. S. 234. 363. The bank can ratify any act done with its officers or agents and get the benefit therefrom. Especially is this so if the transaction is intended to be with the bank, although done in the name of the officer who attends to the transaction. For instance, should the cash- ier take paper endorsed or made to him as cashier, the bank has the right to hold the parties on the same, and can sue in its own name ; and this is so whether the word cashier appears on the paper or not. Baldwin v. Bank of Newbury, 1 U. S. Wall, 234. 364. The word cashier, or president, or whatever name the con- tract may be made in, are only words descriptive of his office, and, in fact, the contract is one with the bank, although technically with the individual who is cashier, and the bank has the right to so consider it. Of course, if, as a matter of fact, the contract was -not made on the part of the bank, the word cashier, etc., adds nothing to it. 365. It is supposed that when a bank opens for business it will take on deposit the funds of any person who may apply to be one of its customers. But this is not so. 366. A bank is not like a common carrier, bound to accommodate any one who may apply. It has the right to select its customers from those who may apply, and 'this selection can be done without giving any reason therefor, and the bank can not be held bound for its refusal. It can also cause the customer, once permitted to make his deposits, to 56 MONROE'S DIGEST remove his balance, and can refuse, further, to allow him the privilege of being a customer ; and, ordinarily, it is the duty of the cashier to make this selection, unless the directors assume this duty. Thatcher v. Bank of State of New York, 5 Sandf. 121. 367. And where a stranger leaves money with the bookkeeper or the clerk, to be for him deposited and applied to the payment of his note, he does not thereby become a depositor, and the bank assumes no liability for the application of the fund thus thrust upon it without its consent, expressed through the proper officer, who is usuallj r the cash- ier or receiving teller. 368. Should the officer of the bank undertake to do official acts away from the bank as, for instance, should the receiving teller, out- side the bank, receive money from a depositor, the bank has a right to repudiate it ; or, should the cashier certify a check good, although he is just from the bank, and knows that when he left the drawer of the check had funds to his credit, yet the bank can repudiate this act, for the funds may be drawn out before the cashier returns. 369. Yet, if the cashier should thus certify a check outside the bank, and he had been in the habit of so doing, and not restrained by the bank, should the check come into the hands of an innocent holder, it is a question as to whether the bank is not bound. Bullard v. Ran- dall, 1 Gray, 605. 370. Still the bank can ratify all irregular acts of its officers and agents, and look to them for indemnity against loss. See Morse, pp. 174, 175. 371. Should the cashier pay a check purporting to be drawn by one of its customers, but which is in fact forged, the bank is bound, as it is the duty of the cashier to pay checks, and he is bound to know the signature of the customers of the bank ; but the bank is not bound if the forged check is shown the cashier, and he should reply it was genuine when the question is asked him, as the bank agrees only to pay checks of its depositors, when it has funds of its depositor, but does not agree to set itself up as an expert to decide on the genuineness of the signatures of its depositors, and if the cashier does more, he does so without authority. 372. But should the party presenting the check tell the cashier he is about to take it, and he should tell him it is a genuine signature, ; and, relying on the judgment of the cashier, the presenter should take the check, the bank would then be bound. Espy v. Bank of Cincin- nati, 1 8 Wall. 604. 373. Overdraft by an agent, of his principal's account, with the knowledge of the cashier of the bank, the credit being extended to the principal, amounts to a simple loan of money, and does not involve moral turpitude, whether the cashier had authority to extend such ac- commodation or not. The authority of the cashier cannot be ques- tioned in an action by the bank to recover money. The case of Union Bank v. Mott, 39 Barb. 180 ; affirmed in Union Gold Mining Co. v. Eocky Mt. Nat. Bank, 2 Colorado, 248. 374. The president of a bank is not authorized to certify his own check. Claflin v. Farmers' and Mechanics 1 Bank, 25 N. Y. 86. 375. When a bank requires and takes from its officers bonds for the faithful performance of their official duties, these bonds, generally, OF STANDARD DECISIONS. 57 are so drawn as to cover ignorance of duty, gross negligence of duty and also dishonesty, and for a failure to comply with the requirements of the bond, the bank has a right of action against the sureties of the officer. American Bank v. Adams, 12 Pickering, 303. 316. Where the directors of a bank suspect any officer of fraud upon the bank, or any unfaithfulness to his trust, it is their duty to immediately dismiss or suspend him. Unless they act with prompti- tude, the sureties of the officer will be discharged from liability for any wrong committed after the suspicion is aroused and brought home to the knowledge of the directors. But even should the directors fail to suspend or dismiss the suspected officer, it will not relieve the sureties from liability for any wrong committed by him before the suspicion is aroused. State Bank v. Chetwood, 3 Halst. 1. 377. Though the directors of the bank are bound to good faith with the party who proposes to become surety on the bond of its officer, and are required to disclose to him any facts known to them which will materially enhance his risk by becoming such surety such as, that the officer is guilty of negligence or has been guilty of frauds yet the surety will be liable to the bank for any fraud committed during his term of office, where the officer was guilty of fraud on the bank before the execution of the bond, but where the knowledge of the fraud was not, as a matter of fact, known to the directors ; and that is true, even though the directors were guilty of gross negligence in not discovering the fraud. Tapley v. Martin, 116 Mass. 275; decided 1874. 378. The sureties of the officer are, of course, not bound for any fraud committed before they become such sureties, unless afterwards, and while they were such sureties, the officer should do an act which tended to make the fraud more complete. The occurrence of any sub- stantial part within that period is enough to make the liability attach. Morse, p. 219. 379. A bank has the right to refuse payment of a check when the same is ambiguously drawn or worded, or when there is anything sus- picious about the check, until it can satisfy itself beyond all doubt ; on the ground that the depositor must aid the bank in the difficult task of deciding a question so vitally important, lest a fraud be perpetrated on the bank ; and when the check is so loosely drawn as to show a doubt on its face as to its regularity or genuineness the bank pays it at its peril, and it has the right to take time to look into it. 380. The sum to be paid must be plainlj' and explicitly set forth, and it must be drawn to be paid in dollars ; it must be addressed to the bank where the depositor has funds ; it must be dated, for a check is not payable until it is dated ; it must be so written as to show that the bank is ordered or requested to pay it ; it must be signed by the drawer, and drawn payable to some one or to bearer. And the bank has the right to require that the check shall have, substantial!}', all the above requisites before it pays the same. See Morse, pp. 234- 238. 381. The question as tp whether a check, payable by its terms sev- eral days after it is drawn, is entitled to grace or not, is involved in a distressing state of doubt. Directly contrary decisions have been made on this question by courts of last resort. The doubt and uncer- 58 MONROE'S DIGEST tainty have arisen from uncertainty in the answer to a question lying back of the former one, to wit : Is such a check in every essential point a bill of exchange ; if it is a bill, then of course it is entitled to grace. The answer to this question again must be sought still further back. On whom and by whom is the paper drawn ? 382. The definition of a check is as follows : It is an order upon a bailee of funds, either a bank or banker, to transfer a named amount of money held on deposit for the drawer, to the drawee, or to his as- signee. 383. Now, then, if the paper in question indicates that it is an or- der drawn by a customer on his bank, to pay over a portion of hi& deposit to the payee, then the paper has the essential elements of a check, and is not entitled to grace. 384. If, however, it indicates by its terms, or if there is any other paper or direction accompanying this paper, indicating that it is drawn on a merchant, or that, by special agreement of the parties to the contract, grace is contracted for, then the paper becomes a bill of ex- change and entitled to grace. These principles are laid down in the recent case of Champion v. Gordon, decided by the Supreme Court of Pennsylvania, and in the able note of Hon. I. F. Redfield to this case, in January number, 1813, of American Law Register. The case and the note treat the question on principle and reach the above conclu- sion ; and while perhaps courts of other States may not follow this ruling, they are probably the safest guide to the practical banker that can be given to-day. And the legitimate conclusion is, that where the paper is drawn on a bank or banker and payable some days after it is drawn, with nothing more, it should be presented and protested for non-payment on the day it is made payable. 385. Of course, a check payable, as checks are ordinarily drawn, not designating any day for payment, is, like bills and notes payable on demand, not entitled to days of grace. 386. Whenever a bank receives one as a customer and takes his funds on deposit, it thereby agrees and is bound to pay all orders or checks drawn on it by the depositor, provided the depositor has suf- ficient funds to his credit not otherwise appropriated. If he has a balance to his credit, but not sufficient to pay the check in full, the bank has a right to refuse to pay the check. 387. Whether the bank should pay the check in part, or so far as this balance of the drawer may go, is very questionable. The prin- ciple is, that the depositor orders the bank to pay a sum certain, and not part of the sum, to do a certain act and not part of it; and, it seems, the proper course for the bank to pursue, is to pay the whole or no part of it. This is a right it can exercise, and should do it, and it certainly will be protected. 388. While it is the duty of the bank to pay the first check that is presented, yet the first may be for more than the balance to the credit of the drawer, and the bank can refuse to pay it, and when the second is presented, if for less, then it has a perfect right to pay the second, al- though it may have knowledge that another check has been presented for payment prior to the one it is paying, but for an amount greater than the balance to the credit of the drawer. 389. It is the duty of the bank to pay all checks properly and in- OF STANDARD DECISIONS. 59 telligently drawn on it by its depositor where he has sufficient funda to meet it, and if the bank refuses to pay them it is liable for all dam- ages that may accrue to the drawer. 390. But the bank has the right to refuse the payment of all checks which are presented in a suspicious manner or a questionable shape. At least it has a right to refuse the payment of the same until it can satisfy itself that it would be safe and proper to pay it ; for in- stance, the check may be torn and pasted together again, the bank should refuse to pay it until it could investigate the matter, but it should reserve funds of the drawer sufficient to pay it, should the fact turn out to be that it was accidentally torn, or torn with no intention to destroy it. Scholey v. Ramsbottom, 2 Camp, 485. 391. Should a check be presented to a bank drawn for an amount greater than the balance to the credit of the drawer, as above said, the bank has the right to refuse payment, and is not bound to pay the balance and have it credited on the check, for the holder has a right to the check until it is paid, and in that case the bank would have no voucher. This is an additional reason to the one above why the bank has the right to refuse part payment of the check : it was not ordered to pay in part, and must have the check in its possession, if it pays it. 392. But should the holder of the check offer to take the balance to the credit of the drawer and surrender the check, it is then the duty of the bank, as will be fully discussed under the head of duties, to pay the balance to the holder and take up the check. 393. The question ma} r often arise as to the length of time a bank may hold a check before it will be considered as having accepted it. As above said, where there are any suspicious circumstances surround- ing a check, as when it has been torn and then pasted together, or where it is presented an unreasonably long time after its date, the bank has the right to take time to investigate the suspicious circum- stances and fully satisfy itself before it can be held liable for non-pay- ment ; so, where a bank receives a check, drawn on it and sent for payment by one of its correspondents from a distance, it may retain the same a reasonable time to examine the customer's account to satisfy itself whether to pay it or not without being held as acceptor. 394. In case Oberman v. Hoboken City Bank, 31 N. Jersey, 563 r the bank retained the check twenty-four hours, and it was then re- turned marked " not good," and the court held that the bank had the right to retain it that time without making itself liable. 395. Whenever a dishonored check is taken by a party, he then takes it subject to all the equities in favor of the drawer. A check is dishonored when payment is refused for any cause ; but when there is no mark to indicate that demand has been made and payment refused, it will not be deemed dishonored until a reasonable time has elapsed after it is payable. In Ames v. Meriam, 98 Mass. 294, a check taken ten days after it was drawn was held not open to equities in favor of the drawer. Probably a much longer time may elapse, according to the circumstances of the case, and the bank be safe in paying a check, or a party in taking it, and still it would not be open to equities ; but, as before said, it is safe for the bank to be cautious. 396. So, if a stale check, say a year old, should be presented for payment, this of itself would be sufficient to put the bank on enquiry, 60 MONROE'S DIGEST and would give it the right to delay payment until proper enquiry could be made. Cowing v. Altman, 1 N. Y. Supreme Court Reports, 494 ; decided October, 1873 ; Oerome v. Com. Exchange Bank, 5 same ; decided January, 1875. 397. In this last case the facts were these : A bank certified a check for the drawee, and he retained it for seven years ; he then transferred it. In the meantime the drawer had withdrawn all his funds, the bank not having charged him with the certified check. And, while in this case the court rest their opinion on another point, still a sufficient warning is given to banks not to pay stale checks, although certified, without careful enquiry. It is their right to refuse payment until perfectly satisfied that there is nothing suspicious in the transac- tion, and they should always exercise this right. 398. And where a check is presented for payment, not properly signed, as where it requires the signature of another besides the drawer, the bank has a right to refuse its payment ; yet, should the bank pay it, and the funds go to the proper party, or reach the proper channel, the bank will be protected in the payment. It is, however, a dangerous plan for banks to pay any check not properly signed, as it is often very difficult for it to trace the funds, should it be called upon to defend. Coate v. Bank of U. S., 3 Cranch, 50. 399. So, where persons, without being legally appointed directors of a corporation, yet assumed to act as such, and apparently acted under the provisions of the charter, and drew checks as such acting directors on a bank, the bank was protected in paying them, although the money was wasted, and although these persons were never elected by the stockholders, who were, in fact, ignorant of the whole transac- tion, and whose money was virtually stolen by the drawers of these checks. Holy ford Mining Co. v. Nat. Bank, 5 Irish Rep. 516 ; de- cided in 1871. 400. The depositor has the right to revoke the payment of any checks drawn by him upon giving the proper notice to the bank, and it has the right and will be protected in refusing the payment of the same. But this power of revocation must be exercised on the part of the drawer before the check is presented for payment, and before the bank has in some way obligated itself to pay it. Even after the check is pre- sented, but if not paid for some reason, the drawer can revoke it, un- less the bank has in some way bound itself. 401. And even should the bank certify a check, it has the i*ight to recall it, if it was done through mistake, as where the drawer had no funds, or it was certified through fraud ; provided, it repudiates its act very promptly, while the check remains in the hands of the party pre- senting it, and the holder has in no "way been prejudiced by the repu- diation, as that he has parted with property or security on the strength of the bank certifying the check as good. Irving Bank v. Wetherald, 36 N. Y. 335. 402. Acting under the above principle that the drawer can revoke his checks before presented, the bank has the right to refuse and should refuse payment of a check drawn payable some days after it is dated, if it should be presented on any day prior to such a day or else, if it pays it, it is done at its own peril, for payment might be counter- manded, and the course of the bank is clea-r. It has the right, and OF STANDARD DECISIONS. 61 should unquestionably exercise it, not to pay any check before the day on which it is made payable, nor to certify the same, nor in any way bind itself to its recognition. It may here be remarked, that although, the drawer has the right to revoke his check before presentment and payment, yet should it come into the hands of a third party, an inno- cent holder for value, it is very questionable whether he would have the right to revoke payment. 403. The bank has no right to and makes itself responsible when it pays or certifies a check before the day on which it is made payable. Clarke v. National Bank of Albion, 52 Barb. 592. 404. The general doctrine is, that where a bank receives paper for collection and has it protested for non-payment or non-acceptance, its- absolute duty extends only to the notifying of the person from whom the collection is received of the dishonor. 405. Usage or special contract may, however, change this rule. It is of course best to notify all the parties, as the above rule is not operative in all the States ; but the preponderance of the authority is in favor of this rule. But if the bank attempts to notify all parties it is its duty to do so correctly, as an attempt to notify all the parties to the dishonored paper will be regarded as prima facie evidence that the bank contracted, or that it is the usage of that place for banks to no- tify all parties. State Bank v. Bank of Capitol, 41 Barb. 343. 406. The bank has the right to assume that reasonable and well- established usages, either of banks in general or of that particular bank, enter, as elements, into any particular contract made with its customer, or with the party who makes his paper payable at that bank ; and those features of the contract which were not definitely settled by the parties will be governed by the usage ; and the bank has the right to assume further, that its customer is familiar with and is willing to be governed by that usage. Bank of Columbia v. Mary- land, 6 Har. & J. 180. 407. But when the bank becomes owner of paper which was not made payable there, then the presumption that the drawer was familiar with and implicitly agreed to be governed by the usage of that partic- ular bank does not exist, and the usage will not enter into the contract. Ibid. 180. 408. Where one bank transmits paper for collection to its corre- spondent, the question whether the collecting bank has the right to place the proceeds of the collection to the credit of the transmitting bank as against the true owner of the paper, whose name is not dis- closed, becomes very important. 409. And it is well settled by well considered cases that the col- lecting bank cannot place proceeds of paper sent it for collection to the credit of the transmitting bank, so that the true owner will lose it in case of the failure of the transmitting bank. Bank of the Metropo- lis v. New England Bank, 7 How. 234. 410. Although the two banks may have for years been crediting each other with proceeds of collections thus mutually sent, yet this usage will not avail the bank as against the claim of the true owner of the paper. 411. But where the collecting bank shows that it advanced money on the collection to the transmitting bank, not knowing the paper be- 62 MONROE'S DIGEST longed to its customer, it seems, then, in case of failure of transmitting bank, the loss would fall on the customer. Dod v. Fourth National Bank of New York, 59 Barb. 265 ; Miller v. Farmers' and Mech. Bank, 30 Md. 412. The true rule is this: Where the bank to which the paper is sent is ignorant of the true owner, and supposes it belongs to the transmitting bank there being nothing on the paper to put it on its guard under these circumstances, and these only, it becomes a bona fide holder, if it advances money or values on the paper at that time ; but the mere placing it to the credit of the other bank, and seeking to make the paper pay an old debt due from its correspondent, will not make the bank a holder for value. This rule is dictated by common sense, and is well supported by the foregoing cases. 413. Of course, it is not meant by this statement, that the collect- ing bank cannot place the proceeds of the collection to the credit of the transmitting bank, but that, in the event that the transmitting bank fails before settling with the owner of the paper, the owner will not be precluded from the credit so given, but can still go on the col- lecting bank as for money had and received by it for his use. 414. Where the bank which receives paper for collection from its customer, and transmits it to its correspondent, credits the customer with the amount of the collection, under the belief that it has been, paid to the correspondent bank, it can repudiate or correct the credit, when it is ascertained the collection has not been made, on taking prompt measures to notify the customer of the mistake, so soon as the fact is made known to the bank giving the credit. Even where the mistake was not discovered for a considerable time when the deposi- tor's book had been balanced several times in the meantime yet the bank so making the mistake was permitted to charge the customer therewith. Mechanics' Bank v. Earp, 4 Raull, 384. 415. A bank may open an account with a married woman, and may, as a matter of course, pay her checks and treat her in all respects as a femme sole, unless it has actual knowledge of the fact, or good grounds for believing, that she is a married woman, even though the funds deposited belonged to the husband. It will be protected in thus dealing with her and paying her checks, until duly notified that she is married and of the true ownership of the funds. This is on the prin- cipal that, where a husband suffers his wife to deal with his funds just as if they were her own, he must suffer the loss, and not the bank, un- less knowledge of coverture is brought home to the bank. Dacy v. New York Chem. Manufacturing Co., 2 Hall, 550. 416. If a married woman is doing business for her own account, with the consent of her husband, or has funds of her own separate es- tate, and keeps them separate from the funds of her husband, by his consent or knowledge, the bank can then deal with her and pay her checks, although it has knowledge that she is a married woman. 417. Where money is advanced by a bank on the strength of a bill of lading attached to the discounted paper, this gives the bank con- structive possession of the property represented by the bill of lading, ;nd the bank can claim the property against all the world, and it is not obliged to have the papers registered in the county clerk's office, like a chattel mortgage. It occupies the position of a mortgagee in OF STANDARD DECISIONS. 63 possession of mortgaged chattels, and can maintain trover or replevin against the party to whom the same was consigned. 418. The consignee holds it as bailee for the bank, and will not be permitted to hold the property for payment of any balance due him from the consignor on general account. First National Bank of Cin- cinnati v. Kelly, 57 N. Y. 34 ; decided 1874. 419. Shareholders in the stock of the bank have rights that must be protected by the directors ; in truth, they are the parties most in- terested in the proper administration of the affairs of the corporation. They have a right to see that its funds are properly handled, and that prudence and honesty are used in the management of the affairs of the bunk ; and, should the directors be guilty of any fraudulent act, vio- late any provision of the charter, or willfully do any act that will bring loss to the bank as in discounting notes in excess of the amount allowed by law, or declaring a dividend out of the capital of the bank instead of out of its earnings, or engage in any speculation or enterprise not within the scope of banking business the sharehold- ers have a right to hold the directors, or any one of them, liable per- sonally for the injury thus inflicted upon their property. Morse, p. 451. 420. A question, which has given rise to no inconsiderable amount of discussion and been attended with some diversity of judicial opin- ion, as well as causing much perplexity to text-writers, is the right of the holder of a check drawn by a depositor who has funds in the bank sufficient for its payment, and who has not countermanded the payment at the time of its presentment, to hold the bank liable for its refusal to pay when so presented. 421. Mr. Morse, in his work on banking, answers the question, and with some plausibility favors the view that such liability exists, upon the ground of priority of contract between the holder of the check and the bank that when the relation of bank and depositor was created, the bank undertook to pay all checks of the depositor so long as he has funds subject to his order ; and this undertaking on the part of the bank, by virtue of the usage and custom of the banks, raised an implied agreement with the holder of the check that the bank would pay it. He even puts it stronger by saying, " We 'cannot but feel assured that, the bank in receiving the deposit, the depositor in drawing his check, and certainly not the least of the three, the payee receiving it as money as actual cash all alike in their respective acts contemplate and have perfect reference to a well-known usage of banks to answer the demands of the bearers of such documents, if the draw- er's credit is sufficient." (Page 469.) 422. This is not the hypothesis or principle that the drawing of the check operates as an assignment of so much of the fund to the holder of the check ; for it is well settled there can be no such assignment until there is an acceptance by the bank. It is not like the rule that operates when a party draws a bill or draft on a person who has funds in his hands for that purpose. In their case, it would be an assign- ment from the time of notice to the drawee. But it is sought to be placed by him on an entirely different principle the one above men- tioned upon the agreement which is implied on the part of the bank when it receives funds on deposit subject to the order of the depositor, that it would pay out those funds whenever ordered, and that from the 64 MONROE'S DIGEST nature of this contract, and the usage of banks, the holder becomes a, party to the contract, and has a right of action against the bank for the amount of the check ; not that the drawer and holder both can sue the bank for the same fund in case it refuses to pay. The drawer can also sue, but his will be an action for damages for injury to his credit for not paying his check. The holder, an action for the money itself. 423. Such is the reasoning, and such the conclusions of that learned author. Since the publication of Mr. Morse's book, however,, two important cases have been decided, which have practically settled the question, and settled it in opposition to the views so warmly advo- cated by him. 424. The Supreme Court of the United States have met and de- cided the simple, naked question, that the holder of a check, before certification or acceptance of it by the bank, has no right of action against it ; saying, there is no privity between him and the bank ; it owes a duty, to wit : to pay his checks, when in funds to do so, to its customers ; and he can maintain an action against it for refusing, im- properly, to do so, but it owes no duty to the holder of the check, un- til it has by its own voluntary act created one ; i. e., by certifying the same, or by charging the drawee with the amount thereof. Bank of Republic v. Millard, 10 Wall. 156. 425. Otherwise, say the court in this case, " the anomaly is pre- sented of a right of action upon one promise, for the same thing, ex- isting in two distinct persons at the same time." This case was not complicated with any extraneous facts. The single question raised and decided by the court was the one above stated. 426. The still more recent case of Seventh National Bank v Cook r 73 Penn. St. 483, decided in 1873, cites, with approval, the foregoing case. And since the authorities in this country, prior to those two- cases, were not settled on this question, it is probable that the weight of those two eminent courts will induce other courts to adopt and fol- low their reasoning. The better opinion, therefore, in the present state of the law, would seem to be that the mere holding of a check gives no right of action against the bank, to the holder thereof. 427. The depositor or customer of a bank has his rights, which accrue as the relation once begins. He has a right to examine the books of the bank as to the condition of his account, to demand that the condition of his account be not disclosed to any one ; to insist that the bank continue in a usage or the ordinary course of dealing with him that once existed ; provided, such usage was a proper one. 428. He has a right to sue the bank when it pays his checks in counterfeit coin or paper. The right is to require the bank to pay his checks, and they are not paid if counterfeit coin or paper is given. And he has a right to sue the bank for damages if it refuses to pay his- check, when he has money to his credit with the bank, sufficient to pay with. DUTIES OF BANKS. 429. Although the relation of a bank and its depositors is in many respects that of a debtor and creditor growing out of a contract, yet, in some aspects, it differs from the relations existing between debtor OP STANDARD DECISIONS. 65 and creditor growing out of an ordinary contract. It is not a relation of trustee and cestue que trust, as is generally the case where a party de- posits funds with another to hold in a fiduciary capacity. 430. So an arrest of the banker cannot be had in those States where the debtor can be arrested for certain classes of debts, when he fails to pay over the money placed in his bank as an ordinary deposit. 431. On the same principle a banker can be discharged in bank- ruptcy from his debts due depositors, as in law the debt is not regarded as having been created in a fiduciary capacity. Buchanan Oil Co. v. Woodman, 4 N. Y. Supreme Court Rep. 193 ; decided 1874. 432. When the relation of depositor is once created it is done upon the implied understanding that the bank will pay out the funds when- ever so instructed by the depositor, and it becomes the imperative duty of the bank so to do, whenever the depositor instructs it in writ- ing, either in the ordinary form of a check or in any explicit way, so long as it has any funds of the depositor to his credit. 433. The bank can pay out such funds upon a verbal order of the depositor, but the risk of the bank would be to make the necessary proof that it was paid on a verbal order, should it come into dispute. Watts v. Christie, 11 Beav. 546. It is the safest way for the bank to pay out the funds of the depositor only on written orders, written without ambiguity as to the amount, and showing to whom it should be paid and where. 434. On account of the delicate relations that exist between the bank and its customers, occupying in one sense, as before explained, the relation of a trustee of funds to be held for the convenience of its customers and also on account of the great facilities the officers of the bank have for committing frauds it is the duty of the directors to keep a far greater supervision over the affairs of the bank than is encumbent upon directors of other corporations. 435. The directors of the bank become, in their relation to the customers, the bank itself, and are held responsible to the community for the doings of the bank and its agents, and it becomes their duty to so watch the doings of its officers that no one can long continue in acts of dereliction without their knowledge. 436. The very nature of the office of director is one of watchful- ness, and they are supposed to become almost daily cognizant of each day's doings. And where they entrust an officer with functions which properly belong to him, or where they suffer a certain officer to assume certain functions not properly within the line of his particular duty, and the officer abuses the trust, the courts will hold that the directors have made him their agent, and hold them liable, in their individual capacity, for the acts of that officer. Caldwell v. Nat. Mohawk Bank, 64 Barb. 334 ; United Society of Shakers v. Underwood, Ky. Court of Appeals, 1874. 437. And the courts will not permit the directors of a bank to say they had no knowledge of the derelictions of its officer, or that he had assumed functions outside his peculiar line of duties, if any mischief should be thereby created, for the reasons above stated. It is their dut3 r to keep so watchful an eye over the doings of each officer that the courts will infer they have actual knowledge of his acts. And it 5 66 MONROE'S DIGEST is for these reasons that bank directors are held to the fullest knowl- edge of any transactions that take place in the bank. 438. Of course, should the officer do an isolated act, outside of his regular function, the bank is not bound ; but the act must not be re- peated so often that it may be construed into a usage, which the di- rectors in doing their duty are bound to take notice of. 439. Where any officer in any way exceeds his authority or does an illegal or fraudulent act, which may not necessarily bind the bank, or which may cause a forfeiture of the charter, in case it should be in any way ratified by the bank, it becomes the duty of the directors, so soon as the fact comes to their knowledge, at once to repudiate the act, to refuse to receive any benefit therefrom, and to undo the transaction, if it can be done without great injury. And if the act has gone so far it cannot be repudiated or undone, then it is their duty to repair the injury so far as it lies in their power. 440. It is also the further duty of the directors at once to remove the officer who has thus transcended his authority or done the illegal or fraudulent act. Bank Commissioner v. Bank of Buffalo, 6 Paige, 497. 441. But when the directors neglect their duty in the supervision of the acts of the officers of the bank, and permit, for a long time, some one officer, the president or cashier, for example, to manage the whole business or one general branch of it, though the business prop- erly belongs to another officer, yet the acts of that officer who is thus allowed to manage will bind the bank, so far as outside parties are concerned, unless the statute or charter of the bank positively prohib- ited him from doing that act. Of course, the application of this prin- ciple only applies to parties dealing with the bank who are innocent holders for value of paper received from the bank through their offi- cers, or who are ignorant that he transcends his authority. 442. The principle being that, when the bank in this way makes him its general agent, his acts will bind the bank in any act the bank itself has power to do. Caldwell v. Nat. Mohawk Valley Bank, 64 Barb. 334. 443. One of the most important features in the business of banks is that of making discounts. And it is the exclusive province of the directors to superintend all discounts. In fact, as this power is dele- gated to them direct from the Legislature, as we have already had oc- casion to remark, they cannot delegate it ; they cannot part with it or invest any officer or officers with it, if they wished. 444. They may instruct the cashier or president or any officer to make a certain discount, or to allow a certain class of paper to be dis- counted, but the power thus given must be limited to the customer to the amount of discount taken, to the time, etc., and the officer must follow specifically the instructions given him. This is the utmost power the directors can delegate. In fact, the discount thus ordered is regarded as the act of the directors. 445. Of course, the directors can select a discount or loan com- mittee, but the general management of discounts is the duty, and must be under the direct control of all the directors. Bank of United States v. Dun, C. Pet. 51 ; Bank Commissioners v. Bank of Buffalo, 6 Paige, 437. OF STANDARD DECISIONS. 67 446. By reason of the trust relation which the director occupies to the bank, it becomes his duty not to take any position or use his in- fluence in any way that will be prejudicial to the bank. In all ques- tions that come before the board, which may affect him personally, it is his duty not to vote and to take no part in the discussion of the question. 447. Where there is no direct pi'ohibition, the bank can make a loan to a director ; and where the question of discounting his paper is being discussed, it is the duty of the board to exclude him entirely from its deliberations, and to scrutinize more critically and more se- verely the matter under consideration, for reasons that are obvious, from the relations which he occupies, and because the action of the board itself will be severely scrutinized should it come before the courts. Any irregularity in such proceedings may render the bank liable, even to a forfeiture of its charter. And the same mischief will follow where the directors permit the cashier to make the loan and do not examine his acts, as it is their duty to do. Bank Commissioner v. Bank of Buffalo, 6 Paige, 497. 448. And as the above is the true rule, so far as a director is con- cerned, the same duty devolves upon the board of directors, where a firm is interested or makes an application for a loan, of which firm one -of the directors is a member ; and the same restrictions apply. 449. From the very nature of the business of banking, the su- preme control and management of the funds of the bank is with the directors. They have no right to use the property of the bank for purposes other than those necessary to carry on the legitimate busi- ness of banking ; and it is their duty to conduct the affairs of the bank in the manner, according to their best judgment, most conducive to an increase of the profits and an enlargement of the legitimate business of the bank. 450. It is their duty to so use the corporate funds as to increase its capital by any legitimate means not prohibited by their charter, and not inconsistent with the business of banking. 451. They cannot use the property of the corporation for charita- ble purposes ; nor can they give it away ; nor subscribe to any such object, except upon authority given them by the stockholders. They .are trustees of the property for the benefit of the stockholders, and if they violate their duty in this respect, it becomes a direct violation of a trust, and they will be individually liable for a breach of the trust. Frankfort Bank v. Johnson, 24 Me. 406. 452. A bank, being an artificial body, can only act and speak and know through its organs or agents, and these organs are the officers and directors. The latter are virtually the bank, and it is their duty to act upon any question that pertains to the interests of the bank which comes to their knowledge. And the following question becomes an important one : When does the bank have notice of any fact which concerns it ? 453. It may be said that any fact which comes to the knowledge of a director, while in the discharge of his duties, or to a board of directors, is knowledge to the bank. Especially is this so where the board of directors discuss any question while in session. And knowl- edge received by one board of directors is conclusively presumed to be 68 MONROE'S DIGEST possessed by its successors. Mechanics' Bank v. Seton, 1 Pet. 299 ^ Ful/on Bank v. New York and Sharon Canal Co., 4 Paige, 127. 454. But knowledge obtained by a director not in bis official ca- pacity, but in bis private individual cbaracter, is not knowledge of the bank. It is difficult to determine, at times, when tbe director receives tbe information in his official or individual capacity. Each case must depend on its own circumstances. A sure test is this : 455. Had tbe officer to whom tbe knowledge came any duty to- perform in regard to the matter? If be bad, then unquestionably his knowledge will be considered knowledge of tbe bank. Fulton Bank v, New York and Sharon Canal Co., 4 Paige, 127. 456. As has before been said, it is tbe duty of the bank to pay all the checks drawn on it by the depositor, so long as it has funds to his credit. This was the condition upon which the relation of bank and depositor was created, and the duty of tbe bank is to pay such checks in the order in which they are presented, until the funds of the depos- itor are exhausted, although it may know that, as a matter of fact r several checks are outdrawn by the depositor. 457. It must not take upon itself the duty of distributing the funds pro rata on all the checks presented. 458. When several checks from the same depositor are presented through the clearing house, and the sum of them all exceeds the bal- ance of the depositor, it is the duty of the bank to refuse the payment of any of them. 459. It cannot say which it will pay and which refuse, nor to pay a pro rata on all of them. Morse on Banking, p. 248. 460. As has before been said, under the head " Rights of Banks," the bank has the right to refuse to pay a check drawn for more funds than the depositor had to his credit. Murray v. Judah, 6 Cowen, 490. 461. But where the check is presented to the bank for a larger amount than the drawer has to his credit, and the holder of the check is willing to take the amount to the credit of the drawer, and credit it on the check, and surrender the check to the bank, and get a state- ment from it as to the amount received, the bank is bound to make the paj^ment upon the principle that the drawing of the check by the de- positor for an amount greater than the balance to his credit, and de- mand of tbe same by the holder of the check, and his willingness to- receive the balance, is an assignment of the whole balance, and the payee of the check has a right to it. Bromley v. Com. National Bank of Pennsylvania, as reported in vol. 5, Chicago Legal News, p. 51. 462. According to the principle of this case, the bank is bound to- make this payment, where the check is greater than the balance to the credit of the depositor ; and, if it should refuse, and should pay a smaller check, subsequently presented, or if the depositor should draw out his funds, it would become liable to the holder of the first pre- sented check for the full amount of the deposit. This doctrine is somewhat new and opposed to adjudicated cases in other States, and to the dicta of Mr. Morse, on page 257, and other leading text-writer's^ on this subject, and is, perhaps, the latest adjudication on this point, It is also difficult to reconcile this case with the case of Bank of Re- public v. Millard, 10 Wall. 156, and Seventh National Bank v. Cook r 73 Penn. 483. OF STANDARD DECISIONS. 69 463. It is the duty of the bank to refuse payment of a check drawn by a party who has subsequently become a bankrupt, so soon as it learns definitely that the drawer has filed his petition or been forced into bankruptcy, whether before or after adjudication. 464. The bank cannot refuse to pay the check of a party who has simply committed an act of bankruptcy ; as, for instance, giving a fraudulent preference or stopping payment, etc. 465. And the same duty is imperative when the bank learns that the drawer has deceased ; its duty is to refuse to pay the check. 466. But in either case, that of bankruptcy or death of the drawer, if the bank should pay the check before it has actual notice of the fact, it will be protected ; the same is true if a check is paid after a general Assignment for benefit of creditors. 467. Should, however, the bank be guilty of actual negligence in obtaining information of the bankruptcy, assignment or death, where the information was in its reach, it is doubtful if it would be protected in paying the check. In the case where the debtor and drawer of the check had made a general assignment for the benefit of his creditors before the check was presented, this question was directly settled in Griffin, assignee v. Rice, 1. Hilton (N. Y.) 184. 468. Where the deposit is made by several parties, not partners, as where the deposit is made by joint trustees, or where money is placed to the credit of A, B and C, not partners, it is the duty of the bank to require that the signature of all the parties owning the fund be signed to the check. So a check signed by one of several assignees should not be paid ; all the assignees must sign. This applies equally to assignees in bankruptcy. 469. But where one of the trustees or assignees should abscond or become incapacitated to sign a check, a court of equity will order the bank to pay on the check of the remaining depositor. 470. And where checks are usually signed by one officer of a cor- poration and countersigned by another, but one of these names is want- ing, payment must be refused, or the bank will be liable. If, however, the fund, after it is drawn on such an imperfect check, reaches the proper channel, the bank would be protected. 471. But a check, signed by one of several administrators or ex- ecutors, would be sufficient authority to the bank to pay it. Junes v. Stephenson, 1 Moody & Rob. 145 ; Stone v. Marsh, Ryan & M 364. 472. It is the imperative duty of the bank to know the signatures of its depositors. Should it pay out money to an innocent holder of a forged check it can never recover the same, nor can it charge the de- positor the amount paid on the forged paper ; the loss must fall on the bank. Levy v. Bank of United States, 4 Dall. 234 ; Bank of St. Albans v. Farmers' 1 Bank, 10 Yt. 141. 473. The bank is held to the strictest diligence ; no excuse will avail it ; it cannot say it was a mistake ; it cannot plead that it was a well-executed forgery. If the signature is not genuine, that is suffi- cient. 474. Even where the bank should merely enter the amount of the check to the credit of the holder, according to the decision of the Supreme Court in the case in 4 Dallas, cited above, this was a payment of the check and the bank was not allowed to recover from the holder. 70 MONROE'S DIGEST 475. A check, altered as to the amount to be paid thereon after the depositor signed it, is as much a forgery as if the signature wa* forged. 476. But the above strict rule, as to the duty of the bank to know the signatures of its depositors, does not apply where the body of the check has been changed, in the case where the drawer has written the check so carelessly that it can be altered as to the amount by adding^ to or changing the figures or words, in such a manner that it would not attract attention ; the loss in that case must be that of the drawer. 477. For instance, he may sign a check in blank, and it may be filled up for any amount, and the bank will be protected in paying it r unless it had its suspicions aroused in some way. 478. The handwriting of the body of the check may be different from the signature, for a drawer may sign a check filled up by his order the bank is not put on inquiry from this circumstance only. 479. If the check is signed before it is properly filled up, and the filling up or alteration is afterwards made, the loss falls on the drawer,. provided the alteration is done so as not to attract attention ; and the bank will be protected when it pays a check which appears properly filled up when presented to it for payment. 480. But should the bank have reasonable grounds for suspicion that the filling up of the check was improperly made, or if the altera- tion was done in a manner so awkward as to arouse the suspicion of the bank officer, in the exercise of proper diligence, then, if the bank should pay the check before ascertaining from the drawer whether the alteration is made with his consent, it would be held to the same strict- ness as if the signature was forged. Morse on Banking, p. 302. 481. The payment of a raised or otherwise altered check, as be- tween the drawer and bank, subjects the bank to suffer the loss. But r as above said, if the check is drawn so carelessly that it can be changed without arousing suspicion, then the loss must fall on the drawer who signed a check so carelessly. Goodman v. Eastman, 4 N. H. 455. 482. But a payment of a raised check, as between the bank making the payment and the bank from whom it was received, the rule is otherwise. 483. In Espy v. Bank of Cincinnati ,18 Wallace, 604, the facts were these: A broker brought a check to the bank on which it was drawn, and asked whether it was good, that he was about to purchase it from a stranger and wanted to satisfy himself that the check was good. The proper bank officer examined it and said, " It is all right, send it through the clearing house." The broker sent it through the clearing house and the bank paid it. After payment tbe bank discovered that it was altered, and demanded back the money and brought suit for it. The Supreme Court of the United States held that the bank was en- titled to recover, stating that the bank on examining the check the first time did not seem to have had its attention directed to anything but the genuineness of the drawer's signature and the state of his account. 484. The court would have probably held differently had the bank certified in writing that the check was good, as this would have been evidence that the whole check was scrutinized bj r the bank and adopted as its own paper, especially if the alteration was of such a character that a careful examination would have excited suspicion. OF STANDARD DECISIONS. 71 485. So, where there is a doubt on the part of the bank, after it has paid the check, as to the genuineness of the signature of the drawer, and the check is shown to him, and he pronounces the signa- ture to be his, and it nevertheless proves to be forged, the loss will be that of the bank : upon the principle that the bank is bound to know the signature of its depositors, and the right of the bank becomes fixed on payment of the check, and the answer of the depositor, given honestly, though erroneously, in an effort to aid the bank, does not alter its position or responsibilit}'. Probably, however, if at the time the bank should inform the customer that it could save itself by prompt repudiation, if the signature is forged, he might then be estopped. Morse, p. 310. 486. The bank is bound to have regard to the amount written in letters on the check instead of the Arabic figures, where the two differ in fact, the figures are not material to the check and may be wholly disregarded. Smith v. Smith, 1 B. I. 398. 481. By the common law, the obligation of the bank is only to pay out money on checks when made payable " to bearer." But the custom has grown so universal to draw a check payable to the order of a certain pei'son, and banks have so universally recognized the cus- tom, that it is now binding on the banks to pay checks when drawn " to order." 488. But it is an imperative duty of the bank to know that the signature of the person to whose order the check is made payable, and who indorses it, is genuine, and should the instrument be forged the bank is not exonerated by paying it. 489. The bank must satisfy itself the indorsement is genuine, and that the party presenting the check is the payee or indorsee, and may refuse payment until it is so satisfied ; and it is its duty to hold suffi- cient funds to pay it, should it turn out that the partj' presenting the check is the proper party to receive the funds. Holt v. Ross, 54 N. Y. 473. 490. It may seem a severe responsibility to hold the bank to as- certain the genuineness of the signature of the indorser, and that the party presenting it for payment is the proper party to receive the funds, but the universality of the custom, and the acquiescence of the banks in the custom, makes it now a part of the contract made with the customer at the time he makes his deposit, that the bank will pay checks drawn " to order," and the bank assumes the risk thereby created ; and should the bank pay a check to any person not properly authorized to receive it, it thus being no such pa3 r ment as will protect the bank, the true owner of the check can compel the bank to pay to him. Seventh Nat. Bank v. Cook, 73 Penn. 483. 491. However severely the duty may practically operate on the bank, yet it has undertaken it and must abide the consequences ; and, where a check or draft is presented for payment by a payee or indorsee who is not personally known to the bank and has to be identified, it is not safe for the bank to take the verbal identification of the person who proposes to identify him, for then the bank could not hold him should it turn out that he was mistaken, but if lie knowingly misrepresented the party's identity, the bank could hold him liable. The only safe course for the bank to pursue is to require the indorsement of arespon- 72 MONKOE'S DIGEST Bible party to the paper before paying it to a stranger. Merchants'. Nat. Bank v. Sells & Co.; decided by Circuit Court, St. Louis county, Mo. June, 1875. 492. When a bank accepts a check, or certifies it " good," it thereby enters into a new obligation toward the payee or indorsee, and the relation of debtor and creditor at once comes into existence between the bank and the holder of the check. The bank thereby admits the genuineness of the signature of the drawer and the right of the holder to receive the funds. 493. It is then bound to retain sufficient funds of the drawer to pay the check whenever called upon, as this virtually transfers the fund from the credit of the drawer to that of the holder of the check, and the bank cannot be heard to say the drawer had no funds. Mer- chants' 1 Bank v. Nat. Bank, 10 Wallace, 604. 494. Nor can the bank then avoid its liability to the holder of the check, even should the signature of the drawer be forged, unless the holder knew it was forged. 495. It is the duty of the bank not to allow a depositor know- ingly to misappropriate funds which are to his credit as trustee or in any other fiduciary capacity as not to allow him to check against the trust fund, to be used in placing same to his individual credit, or for other individual purposes. Of course, if the bank had no knowledge that the trustee intended to misappropriate it, would be protected in paying his checks. Mechanics' Bank v. Schaumberg, 38 Mo. 228 ; Van Allen v. Am. Nat. Bank, 52 N. Y. ; decided 1873. 496. So, where an agent or attorney in fact uses the funds of his principal in the discharge of his private debt to the bank, or to any other person, and there is any possibility of fixing the bank with col- lusion or knowledge of the transaction and breach of trust, the bank will be liable for its misappropriation. 49*7. The duty of the bank only goes to the extent to see the check is signed so as to correspond exactly with the name and office in which it was deposited, and if satisfied on this point, it will be pro- tected in paying it, unless it should have knowledge of the intention to misappropriate it. For instance, if the deposit was in the name of A, as trustee or as agent for B, the check should be signed, " Trustee for B," or, " Agent for B " ; and not " Trustee," or " Agent." 498. It is the duty of a bank to hold a fund, about which there is a dispute as to the true ownership, until the question can be settled as to who is the proper party to receive the fund. 499. Without any notice of another claimant the bank's duty is to pay the fund on the check of the party in whose name the deposit was made, and it will be protected ; but after the controversy arises con- cerning a claim, the bank should hold the fund and not pay to either claimant, after it has reliable information the controversy has arisen, until the matter is settled. Farmers' 1 and Mechanics' 1 National Bank v. King, 57 Penn. 202. 500. So, if the bank is garnished, it should not pay out the fund to any person until discharged, unless it is secured by a bond of indemnity. 501. The bank can pay out the fund to either claimant, if the claimant will properly indemnify the bank, so that it will suffer no loss iu case the party receiving it is not the proper party. OF STANDARD DECISIONS. 73 502. If the deposit is made by a party in an official capacity, his successor in office is the proper party to withdraw the fund ; or, if the deposit was made by the party as executor or administrator, the ad- ministrator de bonis non of the estate of the prior deceased is the proper part} 7 to draw out the fund, and not the administrator of the administrator. Morse, p. 276. 503. Usually, the president of a corporation is not the proper of- ficer to check out its funds on deposit in a bank, unless usage to that effect is shown, and it is the duty of the directors to see that the funds so deposited by a corporation are designated in such a manner that only the proper officer of the corporation can check them out. 504. Should they permit the funds of the corporation to be de- posited in a manner which does not clearly show that these were corporation funds, and so as to lead the bank where they are deposited into thinking they were the individual funds of the president, and this latter bank should allow him to withdraw the funds on his in- -dividual check, and if he should misappropriate them, the bank of de- posit would not be liable ; the loss will fall, and properly, on the bank guilty of making the deposit in so loose a manner as to mislead its correspondent. Fulton Bank v. Sharon Canal Co., 4 Paige, 127. 505. Also, where a bank receives paper for collection and receives the proceeds of it, it is bound to pay to the party or bank from whom it received it for collection, and should do so at once, either by voluntary remittance or upon order. 506. But should notice be given to the collecting bank that an- other is the true owner of the paper, and this notice is received before it pa}*s the money over to the part} 7 from whom it received the paper for collection, the bank is bound to the true owner. Union Bank v. Johnson, 9 Gill & Johns, 297. 507. The bank is under legal obligations to the drawer to pay all checks drawn by him against his balance at any time when called upon after the check is made payable. 508. Checks are payable at any time after their dates ; and the drawer can ante date or post-date them ; the former are payable im- mediately, but the latter not until the day they are dated, and are not entitled to days of grace. It would be highly improper for the bank to pay them before the day of their date. 509. Should the bank see proper to pay it before its date, it does so at its own risk, for it is not ordered by the drawer, to pay before. In the meantime, the drawer may revoke or countermand its payment, which he has a perfect right to do, or he may draw out all his funds before the day of its date. Mohawk Bank v. Roderick, 10 Wend. 304 ; Harker v. Anderson, 21 Wend. 372. 510. And a post-dated check that falls due on Sunday or a legal holiday, is not payable the day before, like a bill or note, but pre- entment must not be made until the day after, as the bank is not bound to pay until then ; and a demand made and refusal had on the day before, will excuse an indorser, unless the error should be cor- rected by a second demand, made on the day after Sunday or the legal holiday. Morse, 315 ; Salter v. Burt, 20 Wend. 205. 511. An important feature in the business of banks, is that of re- ceiving checks, notes and bills of its customers, or others, for collection. 74 MONROE'S DIGEST When a bank undertakes to make collections, either upon checks, notes or bills, its duties to its customer begin. The power to assume these duties is inherent in all hanks, and become part of its every day busi- ness. And when the bank undertakes the collection of any paper, it is incumbent upon it to attend to it in the best possible manner for the interest of its customer. 512. It is not bound to institute suit upon any paper indorsed to it for collection, although the indorsement is done in such a manner as to- vest it with the legal title, unless specially instructed to sue. It can sue, however, in order to collect, if it wishes. 513. In case it does undertake to collect by suit, the bank is bound to employ the proper legal agents to collect it ; should it be negligent in the selection of its agent, and loss should follow by reason of the negligence, as in case of entrusting the collection to a notoriously in- efficient or untrustworthy attorney, the bank would be responsible to the owner of the paper. 514. The general duties which devolve upon a bank undertaking collections, are to be determined by the character of the paper and the place where it is made payable. For instance, the duties may be sim- ple where the paper is to be collected in the same town with the bank receiving it ; it may only have to present it to the bank where payable, or to the drawer or acceptor, and if not duly honored, have it pro- tested. Morse, p. 325. 515. The general doctrine may be said to be, that when a bank undertakes to make a collection, it is its dut}', whether charging com- missions or not, to use and exercise reasonable skill and diligence in all the necessary acts incident to the collection, and will not be allowed to- plead want of consideration. The keeping of the customer's discount, or the expectation of being able to hold the money until called for, ia sufficient consideration. Smedes v. Utica Bank, 20 Johns. 372. 516. The bank where the paper for collection is deposited, whether it be a bank at which the paper is payable or not, is the agent of the holder or depositor, and not of any other party.. Its duty consists in acting for the interest of the depositor and to collect the amount due upon the paper, or ascertain by practical effort that it is not collect- able within its range of making collections. Those liable upon the paper by paying the amount due upon it to the bank holding it for col- lection and taking it up, have done all that is necessary to protect themselves. They are not required to see that the money finally reaches- the hands of the party entitled to it. Ward v. Smith, 7 Wall. 447. 517. It is its duty to make the presentment demand, and give notice of the dishonor of the paper, and perform all the necessary act* to hold the indorsers or drawers, in accordance with the laws of the place where the same is made payable. Should the paper come from a distance for collection, it is still its duty to follow the laws and customs- of the place where made payable, in the presentment demand and notice, unless the correspondent gives instructions otherwise, and then- it is bound to follow such instructions, ttosup v. Nininger, 5 Minne- sota, 523. 518. Where the bank deviates from the customary mode of making collections, as where it sends paper to a distance by private messenger r instead of by mail or express, or where, in cities having a clearing OF STANDARD DECISIONS. 7& house, it presents the check over the counter of the drawee's bank, and the payment is refused, whereas if it had gone through the clearing house it would have been paid, all these and similar modes are agencies employed by it, and for the default of the same the bank is bound. But if the deviation is by reason of special instructions from the cus- tomer, the rule is different. 519. It is the duty of the bank to select a proper agent, when it is- necessary to have the services of one, such as a notary, so that all the details incident to proper demand and notice will be properly performed. 520. The bank may make itself liable by selecting an improper notary, who, from neglect or ignorance, causes loss to fall upon the owner of the paper. If, however, it selects a proper notary, as, if it selects one that is ordinarily employed to do its own protesting, this would be strong evidence that the bank did its duty. The duty of the bank would have been done, and then, if such a notary should commit an error, the bank would not be bound. But if the bank has a notary in its employ on a salary, he becomes the agent of the bank, and it is responsible for all his errors and negligence. Stacy v. Dane Co. Bank r 12 Wis. 629 ; Geihard v. Boatmen's Sav. Inst., 38 Mo. 60 ; Citizens' Bank v. Howell, 8 Md. 530. 521. Where the instrument received for collection is a check, the duties of the bank become somewhat more complicated. Jforse, p. 326. 522. The bank becomes the agent of the depositor of the check for collection, and it is bound to present it within a certain time, if the same is drawn on a bank in the same place. Usually this time is until the close of banking hours on the business day next following that on which the bank comes into possession of the check. Hare v. Heutz r 10 C. B. 65 ; Boddington v. Schleuber, 4 B. & A. 752. 523. Of course, circumstances such as the usual custom of the bank, or special instructions from the depositor, may modify or change this rule. The depositor has the right to suppose that the bank will do its duty and* use the established system of the place, whatever that may be, in making presentment. 524. The bank's duty is to present the check to the drawee bank in due time. If there is a clearing house in the place where the re- ceiving bank is situate, banks generally use this mode of presentment,, as this is a sufficient presentment to the drawee bank. But, should the depositor give other instructions as to the time and mode of pre- sentment, as that it should be presented at once, and not wait for the delays incident to the clearing-house system, it is the duty of the bank to follow instructions ; otherwise, if loss should follow, it would be responsible. 525. And, following the above doctrine, a question of very great importance to banks presents itself, governed by the same principle a question on which the courts of the different states have held oppo- site opinions. It is as to the liability of the bank that receives the paper for collection, when it is made payable in a place other than where the receiving bank is located. 526. The courts of New York and Ohio seem to be fixed in hold- ing that the receiving and transmitting bank is responsible for all the acts of its correspondent bank, and if the money is lost in any way,, the receiving bank is responsible to the owner of the paper ; or if the 76 MONROE'S DIGEST bank to which the collection is sent is guilty of any negligence in hav- ing proper demand made, or fails after the money is received, the trans- mitting bank is responsible. The decisions of these courts are based on the old doctrine, that the principal is responsible for all the acts of its agents, whether banks or notaries ; that the bank undertook the collection of the paper, and can select any means to accomplish this it may see fit, and if it sees fit to collect through subagents or other banks, it makes its own selection of these agents, and should be held for the neglect or failure of these agents to do their duty ; that if it does not wish to take this risk upon itself, it can refuse the collection in distant places, or make a special contract to limit its liability. This reasoning is not without force, but as New York and Ohio are alone in this ruling, it cannot be considered as an established doctrine, and is opposed by the weight of authority. Of course, in these two states it will govern, but the doctrine, we think, is not sound, and will not pre- vail elsewhere. The leading cases in New York and Ohio on this point are Allen v. Merchants' Bank, 15 Wend. 482, and 22 Wend. 215 ; Reeves v. State Bank of Ohio, 8 Ohio St. 465. 527. But the other state courts before which the question has Arisen, and the Supreme Court of the United States, hold to the doc- trine stated above, i. e., to the rule which governs a bank in the selec- tion of a notary where the paper is paj'able in the place of the receiv- ing bank, that the duty of the bank ceases with the selection of a proper notary. The reasoning is this : when a party deposits his paper in his own bank for collection, which paper is made payable at a distant place, he knows or is bound to know that the receiving bank, in order to do its duty in collecting ha.s to transmit the paper to its corres- pondent at or nearest the place where the paper is payable, in order that the same may be duly presented for payment, and if not paid, due demand and notice can be given ; for it cannot be supposed that the re- ceiving bank would send its own agent or notary to the distant place, perhaps thousands of miles, to present the paper for payment, and if not paid to duly protest it. And it entered into the implied contract, made with the receiving bank at the time, that it should transmit the paper to its correspondent nearest to the place where the paper is made payable ; that when the receiving bank so transmits the paper, the correspondent bank or its notary becomes the agent, not of the trans- mitting bank, but of the true owner of the paper, and is responsible to him for its neglect or defaults. 528. Of course, the receiving bank must not be guilty of any negli- gence in selecting an improper bank to which to transmit the paper. Some of the leading cases that hold this doctrine are Dorchester and Milton Bank v. New England Bank, 1 Gush. 177; Lawrence v. Ston- ington Bank, 6 Conn. 521 ; JEtna Ins. Co. v. Alton City Bank, 25 Ills. 243 ; Bank of Washington v. Triplett, 1 Peters, 25 ; decision by Chief Justice Marshall. And, in Missouri, in Daly v. Butchers' and Drovers' Bank, 56 Mo. 94 decided in March, 1874 the court reach the same conclusion after reviewing all the decisions in the other states. And, Mr. Morse, in his treatise, after going fully into the doctrine, comes to the same conclusion. 529. When the depositor leaves the paper for collection and gives the receiving bank any instructions as to its transmission or otherwise, OF STANDARD DECISIONS. 77 it is the duty of the bank, as we have said, to follow those instructions implicitly, as where the depositor instructs it sent in a certain way, as by express, and to a certain bank, and to be presented and payment demanded in a certain way and if any loss should occur, the bank will not be liable, if it has followed those instructions. 530. But, where no instructions are left and where the laws of the place where paper is payable differ from the place from which it is sent, it is the duty of the bank, of its own accord, to transmit instructions to its correspondent as to the mode of demand and protest, to hold the indorsers if it is necessary to do so in a manner different from the law or custom where the paper is payable, in order to hold some or all of the indorsers. Allen v. Merchants' 1 Bank, 22 Wend. 215. 531. Where the collection passes through several banks, each is bound to the holder for its failure to transmit to its next correspond- ent, and is liable to a suit direct from him. Lawrence v. Stonington Bank, 6 Conn. 521. 532. After the bank receives paper for collection, it assumes cer- tain obligations to the holder, which it must attend to promptly. It must at once forward the same to its correspondent at or near to where the drawer or acceptor lives. Should the paper be returned to it un- paid or unaccepted, it is its duty to at once notify the holder of the same. Wingate v. Mechanics' Bank, 10 Burr. 107. 533. If the paper is to be accepted, it is the duty of the bank ta procure the acceptance in accordance with the terms of the draft and by the party upon whom it is drawn, and the acceptance must be ob- tained unconditionally and absolutely as, for instance, the bank should not permit the drawer to accept in words which changes the form of the draft, to make it payable at another time or in any kind of payment than money, or to be accepted by a person other than the drawee. 534. And, if it should take an acceptance other than as directed, it should at once notify the holder, with the view to his recognition of the same, which, if had, will exonerate the bank from liability. Walker v. Bank of State of New York, 9 N. Y. 582. 535. In the absence of any special agreement or instructions, the usage and custom and law of the place where paper is to be paid must prevail, and the bank can in safety use no other course. 536. Where a bank issues its notes and bills, which circulate as money, and any one comes into possession of the same for value, the relation of debtor and creditor exists, and the bank is bound to accept its own notes and bills in payment of debts due it, however much they may have depreciated. 537. The debtor of the bank has a right to set off its bills against any debt the bank may hold against him. 538. But, should the bank become insolvent, and be placed in the hands of a receiver, then the debtor of the bank can only set off the bills of the bank for their face value when he had come in possession of them, prior to the insolvency of the bank. Bruyn v. Receiver, 9 Cowen, 413 n. 539. The above rule, of course, has full operation where the note or paper held by the bank is made payable in its own bills, no matter how much the bills may be depreciated in value. Morse, 403. 78 MONROE'S DIGEST 540. Where a party the bona fide holder of bills of a bank should lose them by fire, and be in a condition to fully describe them and prove their destruction, it is the duty of the bank to make up the loss nay, it is bound to do it ; but it is otherwise, if the bill is acci- dently stolen or lost, for, being negotiable in this case, the finder is en- titled to the bill, or may use it. Morse, p. 408. 541. Where it is sought to hold the indorser of a check, a different rule prevails from where it is sought to hold the drawer of it. In seeking to hold the drawer, a demand for payment is good, within al- most any reasonable time, unless, indeed, the drawer can show that he lias been injured by the delay as, for instance, that the drawee-bank failed. But, in seeking to hold the payee or indorser, the check must be presented, and notice of non-payment given with the same diligence as is required in notes and bills of exchange. 542. This subject is of such great practical importance that we shall quote quite at length from a leading case on this topic. The opinion is that of Judge Bronson, in Smith v. Jones, 20 Wend. 192 : 543. " Checks are governed, in several particulars, by the same rules that prevail in relation to inland bills of exchange, payable either on demand or at a given number of days after sight. The holder can recover against the indorser only when he has used due diligence in presenting the check and giving notice of the demand and non-pay- ment by the bank. 544. When the parties all reside in the same place, the holder should present the check on the day it is received, or on the following day ; and when payable at a different place from that in which it is negotiated, the check should be forwarded by mail on the same or the next succeeding day for presentment. It has been said that greater diligence is necessary in presenting checks for payment than is re- quired in relation t6 bills of exchange, but I can see no good reason for it ; what will be due diligence in one case will be due diligence in the other. 545. In an action by a second indorser of a check against the payee, laches on the part of the first indorser will not be presumed ; if there was negligence on his part, it must be affirmatively shown by the defendant. So, where the second indorser has put the check in .circulation, laches will not be presumed in a subsequent holder, where the bill was in circulation only four or five days after the second in- dorser parted with it before it was sent for presentment. 546. But, where, by the course of mail, the check may be pre- sented in three days, and the holder, instead of putting it in circula- tion, holds it in his possession seven or eight days, he is chargeable with want of due diligence. 547. How long a bill or check, payable on demand or at a given number of days after sight may be kept in circulation before present- ment without discharging an indorser is an unsettled question. Each case must be determined by its own circumstances." 548. The case at bar is one where a second indorsee of a check on receiving it put it in circulation, and not more than four or five days elapsed thereafter before it was sent for presentment, and the court held, in an action by him against the payee, that he was not charge- able with laches, there having been no evidence in the case but that OF STANDARD DECISIONS. 79 the indorsee became the holder of the check on the day it was nego- tiated by the payee. 549. It will be seen that the court drew a distinction between a holder who keeps the check in his possession for several days and one who puts it in circulation. In the latter case much more time is per- mitted to elapse before presentment without incurring the danger of laches. LIABILITIES OF BANKS. 550. A contract to perform the duties of an office is implied by the party accepting. Commonwealth v. Evans, 74 Penn. St. 124. 551. In discussing the rights of banks, it will be remembered that the principle was stated that the bank received its powers from the statute law, direct from the Legislature, and as its business is a pecu- liar one, that it had no power to do any act, unless the power is ex- pressly given or is necessary to the proper exercise of the powers so expressly given. 552. In making this statement, it must also be remembered that our meaning is, that no power is given the bank, either directly or by implication, to do any other act than what falls within the limits of business usually undertaken by banks ; our meaning is not that the bank can do no other act for which it will be held liable for there are many acts it may do and many contracts it may enter into for which it will be liable ; for instance : 553. The charter of a bank may limit its issue of bills, and yet the bank may put forth a larger issue than authorized and be bound for the excessive issue, in the hands of a bona fide holder ; also, there may be no power given a bank to engage in any other than a strictly discount business, yet should it receive paper for collection, which is prohibited by its charter, it makes itself liable to its customer, who was not aware of the limitation of its power. 554. Generally, a bank cannot become surety for a person ; this power is not given in the charter and is not inherent to the powers of a bank; yet should it become an accommodation indorser and the paper comes to the hands of an innocent holder for value, although as a matter of fact the indorsement is illegal, yet the bank is liable as such indorser. Morse, p. 10. 555. But, where the holder had actual notice that the indorse- ment was for accommodation, or where there is anything in the ap- pearance of the paper that will show it was for accommodation, then it is incumbent on the holder to prove that the bank received value for the indorsement, or that the directors knew and ratified the act of the officer making the accommodation indorsement. West St. Louis Sav- ings' 1 Bank v. Shawnee County Bank, U. S. Circuit Court, District of Kansas ; reported in Central Law Journal, January, 1875. 556. And, as it will be shown in the proper place, the bank is liable for all acts done by its directors and officers within the limits of their respective duties ; yet, should these officers exceed their author- ity, in entering into a contract, to the extent as to make an illegal con- 80 MONROE'S DIGEST tract, yet the contract can be enforced against the bank by the party making it, should the bank do any act ratifying it. 55*7. Although the party could not recover on the paper itself r which is evidence of the contract, yet he may on the original con- sideration. As where the cashier borrows money without authority and gives a note of the corporation for it, the contract itself may be illegal; the note made without authority, is illegal, but the creditor can hold the bank for the money had and received, if the bank actually used the money and had a right to borrow, in any way, money for its use. Utica Insurance Co. v. Scott, 19 Johns, 1 ; Curtis v. Leavitt, 15 N. Y. 9 ; Boisgerard v. N. Y. Banking Co., 2 Sandf. ch. 23. 558. Much more is the bank liable where paper is made by any of its officers, not in the formal way authorized, and it is negotiable and comes into the hands of a bonafide holder, without notice, unless the charter absolutely forbids the bank to issue such paper. Morse, p. 13. 559. The directors are the only persons authorized to make a con- tract that will be binding upon a bank, with a few exceptions, to be hereafter noticed. But the liability of the bank is not fixed until the contract is signed by the president or cashier, or both, as they only have power to bind the bank with their signatures, and are not author- ized to sign any contract not previously made by the directors, as the directors only can borrow money to increase the capital of the bank, and they only can buy and sell real estate (if the purchasing and sell- ing is in the province of the bank at all). But the contract in either case is not perfected until the proper officers sign the same, and not until then does the liability of the bank begin. 560. And all contracts signed by the president and cashier, unless in pursuance of instructions from the directors, will be invalid in hands of any party knowing the irregularity. Gillet v. Campbell, 1 Den. 520. 561. But, should a contract or negotiable paper, duly executed by the president and cashier, who had no authority to execute the same, come into the hands of an innocent holder for value, the bank would be bound. And the cashier can bind the bank by his check or other paper given for money to meet the ordinary exigencies of the bank ; but not to borrow money to increase the captial of the bank. Mer- chants' Bank v. Nat. Bank, 10 Wallace, 604. 562. All banks are liable, in the same way as individuals, for a violation of the usury laws ; and the contract into which usury enters is governed by the laws of the State where made or to be performed ; and the bank is liable to all the penalties imposed for taking or con- tracting for usury, either by the State or United States statute. 563. In some states the contract is absolutely void ; in others it prevents the recovery of all interests, while in others, of only the ex- cess of legal interest. Besides, the bank may be liable for the forfeit- ure of its charter. But should the bank attempt to enforce such a contract, the debtor cannot at all times escape the payment on the ground that the contract is illegal. He can only claim the benefit of the law against usury, according to the law of the place where the contract was made. Bank of the United States v. Waggner, 9 Peters, 399. OF STANDAKD DECISIONS. 81 564. As before said, where the taking of a greater than legal rate of interest is done by the bank, in the shape of discounts, it is not usury, strictly speaking. One of the direct or inherent powers of a bank is that of discounting paper ; and discount means to reserve in- terest in advance. So, where the bank in this way gets more than the legal interest, it is not liable to the penalty of usury. Morse, p. 16. 565. But, if the bank should demand and receive an excessive rate of discount for the purpose of avoiding the usury laws, it would never- theless be liable to all the penalties for taking usury. Ibid. 566. Where one of the penalties imposed by the statute or law of the land upon the banks for taking usuiy, is the forfeiture of its charter, this can be enforced only at the instance of the State, and only when the bank willfully demands or receives usury. 567. Where a cashier or any other officer of the bank does the illegal act of taking usurj 7 , the bank is not liable to a forfeiture of its charter for this act, unless it was done with the knowledge of the di- rectors, or when subsequently sanctioned by them, or unless the di- rectors failed to repudiate the act so soon as it came to their knowl- edge. 568. The presumption of law is, that the corporation does not authorize its officers to do an illegal act, and when either one of them does an illegal act, and it is not shown that the directors knew or sanctioned it, the bank is not liable for the penalty. But where the illegal acts are done frequently, or even habitually, the presumption will then arise that they were done with the knowledge of the direct- ors. Clark v. Metropolitan Bank, 4 Duer. 241. 569. Any violation of the State law or provision of its charter knowingly committed by the directors will subject the bank to a for- feiture of its charter. And the directors of a bank, unlike the direct- ors of any other corporation, are held to a strict accountability for watching the acts of its officers and may even be held individually responsible where the officer is guilty of illegal acts which they might by proper diligence have discovered and prevented. Agricultural Bank v. Robinson, 24 Maine, 274 ; United Society of Shakers v. Un- derwood, Ky. Court of Appeals, 1874. 570. Mr. Morse, page 22, says : " Generally it may be said that any violation, willfully or knowingly committed, of any material di- rection or provision embodied in the law of the corporate existence ; or any fraudulent or dishonest act ; or the occurrence of anything which shows that for any reason, whether of fault or misfortune, the bank is incompetent in any respect to perform safely and usefully any of its functions, will furnish sufficient ground for taking away its corporate franchise." State Bank v. State, 1 Blackf. 270. 571. The only forfeiture declared by the thirtieth section of the act of June 3d, 1864 (13 Stat. 99), is of the entire interest which the note, bill, or other evidence of debt, carries with it, or which has been agreed to be paid thereon, when the rate knowingly received, reserved, or charged by a national bank is in excess of that allowed by that section ; and no loss of the entire debt is incurred by such bank, as a penalty or otherwise, by reason of the provisions of the usury law of the state. Farmers' & Mechanics' Nat. Bank v. Dearing, (1 Otto) f U. S. S. C. 91, 29. 6 82 MONKOE'S DIGEST 572. National banks organized under the act are the instruments designed to be used to aid the government in the administration of an important branch of the public service, and Congress, which is the sole judge of the necessity for their creation, having brought them into existence, the States can exercise no control over them, nor in any wise affect their operation, except so far as it may see proper to per- mit. Ibid. 573. So, where the charter of a bank or the general law of the State prohibits it from making a loan to its directors, or loaning them beyond a given amount, and the bank violates either the charter or State law, whether directly or indirectly, as where the loan is made to an outside party, yet in fact for the use of a director, the bank is liable to forfeit its charter. It is no excuse that the directors were not aware of the law or of the fact that this director had already borrowed all he could under the law. They are imperatively bound to know it. Bank Commissioner v. Bank of Buffalo, 6 Paige, N. Y. 497. 574. When the relation of debtor and creditor is once established between a bank and its customer, by the opening of an account of de- posit, the customer has the right to withdraw from the bank such funds at any time, and the bank is bound to honor all his checks until his balance is absorbed, and it is liable for all damages in case it should refuse to pay his checks. 575. But while the bank, like an individual, is bound to observe the laws of the land in making its contracts, it also, like an individual, can make use of and plead any legal defences it may have to an action brought against it by its customers. For instance, the statute of limi- tations will run in favor of the bank, like any other debt at common law. And it is an important question as to when the statute of limita- tion will begin in favor of the bank. In 3 Pick., 96, and 16 Mee. & W., 321, Mr. Morse says, p. 31 : It was held that the statute began " from the date of the last balancing of accounts, as in the depositor's bank book, if no subsequent transaction should take place between the depositor and bank." But he does not think this rule to be " founded either in reason or sound law," and says the proper date for the statute to run is after a demand made by the depositor for the balance to his credit, or rather, after a refusal for any amount less than the balance, upon a proper demand being made by the depositor, and reasons thus : 576. The longer funds remain in the bank, the greater will be the gain of the bank. " The banking business finds a great portion of its profits in many cases all its profits in the use of the funds of other persons," its depositors. " If it has been allowed to reap extraordi- nary gains from the funds of one man, because it has been allowed to retain them undisturbed for the unwonted space of eight, ten or twelve years, this would seem to be no just cause for allowing it to add the still more enormous gain of a complete appropriation of the whole sum." Morse, p. 31. 577. " We have already seen that it is a contract specially modi- fied by the clear legal understanding that the money shall be forth- coming to meet the order of the creditor, whenever that order shall be properly presented for payment. It follows, therefore, that this de- mand for payment is an integral and essential part of the undertaking it may be said, even of the debt itself. In short, the agreement of OF STANDARD DECISIONS. 83 the bank with the depositor is only to pay on demand ; accordingly, until there has been such demand, and a refusal thereto, or until some act of the bank has dispensed .with such demand and refusal, the statute cannot begin to run." Morse, p. 32, citing authorities. 578. On the same principle, a bank cannot be sued by its depositor until a demand, for the contract was to pay on demand, and until a y the act (see amendment, chap. 193, Laws of 1870) ; that this was not available as a defence as it was not set up in the answer. At. State Bank v Savery, 82 N. Y. 291. 824. It seems that it would not have availed if it had been pleaded. At. State Bank v. Savery, 82 N. Y. 291. 825. Also, held, that the violation of the statute was not a fact Affecting the good faith of plaintiff as holder of the paper. At. State Bank v. Savery, 82 N. Y. 291. 826. Also, held, that if the purchase of the note was beyond the ficope of plaintiff's powers as defined by the act under which it was or- ganized, it would not avail defendants. At. State Bank v. Savery, 82 N. Y. 291. 827. The Supreme Court of this State has jurisdiction over an action ex contractu brought by a citizen of the state against a national bank located in another State. Robinson v. Nat. Bank of Newberne, 81 N. Y. 385. 828. The provision of the National Banking Act (U. S. R. S., 5798) authorizing suits against the banking associations organized under it, to be brought in the court of the county or city of the state in which the association is located, does not have the effect to deprive other courts of jurisdiction ; it is permissive, not mandatory, and therefore does not limit the general rule permitting civil cases arising under the laws of the United States to be prosecuted and determined in the State courts, where no exclusive jurisdiction has been vested in the Federal courts, or the State courts have not been prohibited from entertaining jurisdiction. Robinson v. Nat. Bank of Newberne, 81 N. Y. 385. 829. In an action brought to recover the amount of a promissory note discounted Ity a national bank, it cannot be set up by wa} r of -counterclaim or set-off that the .bank, in discounting a series of notes, the proceeds of which were used to pay other notes, knowingly took a greater rate of interest than that allowed by law. Nat. Bank of Au- burn v. Lewis, 81 N. Y. 15. 830. The remedy in such case is an action of debt to recover back the amount paid. Nat. Bank of Auburn v. Lewis, 81 N. Y. 15. 831. The rule laid down in this case upon a former argument 116 MONROE'S DIGEST (Nat. Bank of A. v. Lewis, 75 N. Y. 516), modified as above in conform- ity with decision in Barnet v. Nat. Bank (98 U. S. [8 Otto] 555), which the court hold to be controlling. Nat. Bank of Auburn v. Lewis, 81 N. Y. 15. 832. Although State courts have concurrent jurisdiction with the Federal courts in actions by and against national banks, in an action in a State court the practice and pleadings prescribed by the Legislature of the State in regard to a counterclaim or recoupment cannot be re- sorted to, so as to defeat the object and intention of a federal enact- ment. Nat. Bank of Auburn v. Lewis, 81 N. Y. 15. 833. The provision of the U.S. Statute ( 914), providing that the practice, pleadings, forms and modes of proceedings, in civil causes, in the Circuit and District Courts, shall conform, as near a& may be, to those existing at the time in the courts of record of the State, has no application in such case ; it cannot annul or operate to- prevent the application and enforcement of a statutory provision of a penal character. Nat. Bank of Auburn v. Lewis, 81 N. Y. 15. 834. Where, however, a national bank, in the discount of a note, has usuriously reserved a sum greater than the lawful rate of interest,, the amount so reserved is forfeited (U. S. R. S., 5198), and cannot be recovered in an action upon the note. Nat. Bank of Auburne v. Lewis, 81 N. Y. 15. 835. In such an action an attachment may be issued against the property of the defendant in this State. Robinson v. Nat Bank of Newburne, 81 N. Y. 385. 836. The provision of said act ( 5242) prohibiting the issuing of an attachment, injunction or execution against such an association or its property before final judgment, applies only to an association which has become insolvent or to one about to become so, as specified in the preceding part of the section. Bobinson v. Nat. Bank of New- burne, 81 N. Y. 385. 837. Plaintiff deposited with defendant, for collection, a note to which there was no indorser save the maker, pa}' able at the bank of Lowville, of which bank the maker was a customer. Defendant sent the note by mail to that bank, which was an ordinary method of trans- acting such business. The note reached said bank the day it fell due : upon the next day it sent its draft on New York in payment, and on the same day failed. The maker had not quite sufficient on deposit to- pay the note; the deficit was made up after the failure. Defendant received the draft the next day, which was Saturday, after business hours; he forwarded it on Monday morning, in the usual course of business, to the clearing-house in New York, and it was returned " not good." Defendant immediately gave plaintiff notice of non-payment. In an action to recover the amount of the note, because of alleged negligence, held (Miller, Earl and Danforth JJ., dissenting), that plaintiff was properly non-suited ; that as there was no evidence that the maker was insolvent, it did,not appear that plaintiff sustained any damage ; that the receipt of the draft was not a payment, and did not discharge him from liability. Indig v. Nat. City Bank, 80 N. Y. 100. 838. Also, held, by Rapallo, Folger and Andrews, JJ., (Miller, Earl and Danforth, JJ., dissenting), that by sending the note to the Bank of Lowville by mail, defendant did not constitute that bank its. OP STANDARD DECISIONS. 117 agent to receive payment, but simply presented the draft through the mail for payment ; that no relation was created between defendant and said bank by presentment in this manner different from what would have existed had the note been sent through any other agency ; that if presented by a subagent the latter would have been justified in accept- ing a draft for the amount ; also, that there was no negligence in for- warding the draft. Indig v. Nat. City Bank, 80 N. Y. 100. 839. One B. was in March, 1874, cashier of defendant, the Nat- ional Bank of Fishkill, and its managing officer and general agent ; he was also plaintiffs treasurer. He took certain bonds belonging to plaintiff which, in the name and as cashier and manager officer of said defendant, he pledged, with various parties as securities for loans. In January, 1876, B. repossessed himself of the bonds, and returned them to plaintiff, but on the thirty -first of that month again took them, and in the same manner pledged them with W, and Me M., a banking firm, as security for advances made and to be made to defendant ; the bonds were subsequently sold pursuant to the conditions of the pledge, and the proceeds credited to said defendant. In an action for conver r sion of the bonds, held, that said defendant was liable ; that ignorance on the part of its directors was not a defence, as, if ignorant, it was because they omitted the performance of official duty ; that although B. had no authority to take the bonds, when he pledged them he repre- sented the bank, and his knowledge was notice to it. Fishkill Sav- ings Inst. v. Nat. Bank of F., 80 N. Y. 162. 840. Also, held, that a counterclaim could not be allowed in such an action. Fishkill Savings Inst. v. Nat. Bank of F., 80 N. Y. 162. 841. The term " individual banker," in the provision of the act of 1875, relating to savings banks ( 49, chap. 371, Laws of 1875), which declares it " not to be lawful for any bank, banking association or indi- vidual banker to advertise or put forth a sign as a savings bank," ap- plies only to one who has availed himself of the banking statutes of this state, and has become empowered to do banking thereunder ; it does not apply to a private banker, who exercises in his business no more than the risrhts and privileges common to all. People v. Doty, 80 N. Y. 225. 842. Defendant and one W were engaged in conducting a banking business in a building owned by defendant. They were not organized as bankers. Nor was either of them authorized to do banking business under the banking laws of the State. They did business under the name of " The Farmers' Bank of Batavia." Defendant caused to be placed in plain sight, on the outside of the building, the words " L. Doty's Savings Bank." In an action to recover penalties, under said act of 1875, for putting " forth a sign as a savings bank," held, that de- fendant was not an " individual banker," within the meaning of said act ; and that, therefore, the action was not maintainable. People v. Dohf, 80 N. Y. 225. 843. The various banking acts expressive of the legislative intent in the use of the term " individual banker " collated. People v. Doty, 80 N. Y. 225. 844. It seems, that the proper phrase to designate a banker doing business without having acquired the privileges conferred by the pro- visions of the statute, is " private banker," not " individual banker." People v. Doty, 80 N. Y. 225. 118 MONBOE'S DIGEST 845. Building erected by bank on leased land is real property for purposes of taxation, and value to be deducted from value of shares in assessing stockholders. People, ex rel. v. Comrs., Etc., 80 N. Y. 573. 846. The power to receive special deposits is incidental to the busi- ness of banking. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 847. The enumeration of banking powers in the National Banking Act is not significant of an intention to place any special restrictions* upon national banks as distinguished from state banks. The enumer- ation is of the general, not the incidental powers. Pattison v. Syra- cuse Nat. Bank, 80 N. Y. 82. 848. National banks, therefore, have power to receive special de- posits gratuitously or otherwise ; and when received gratuitously, they are liable for their loss by gross negligence. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 849. When a national bank has habitually received such deposits,, this liability attaches to a deposit received in the usual way. Patti- son v. Syracuse Nat. Bank, 80 N. Y. 82. 850. The term " special deposits " includes money, securities and other valuables delivered to banks, to be specifically kept and re- delivered ; it is not confined to securities held by the banks as collat- eral to loans. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 851. In an action to recover damages for a special deposit alleged to have been lost through defendant's gross negligence, it appeared that plaintiff delivered to defendant's teller, at its bank, for safe keep- ing, a package containing certain bonds. Defendant had been accus- tomed to receive for that purpose, packages supposed to contain se- curities and valuables. Some of these were left by its directors. The cashier of the bank had the control and management of its affairs. It did not appear that the president took any part in its management or r that the directors held any meetings. The teller sometimes acted as* cashier in his absence. Some time before the deposit, the cashier said something to the teller as to their not taking any more packages for safe keeping. The teller testified that this was not a positive instruc- tion, but merely an opinion, and that he did, after that, receive pack- ages. He also testified that he told plaintiff when the deposit was* made, that it would be at his own risk ; this was contradicted by plain- tiff. The teller also testified that the cashier sometimes told persons- depositing packages that they would be at their own risk, and at other occasions packages were received without $uch notice. The package so left by plaintiff was kept in defendant's bank for about two years be- fore its loss, being occasionally taken out by him to cut off coupons, and then returned. Held, that the evidence justified the submission to the jury of the question of the authority of the teller, and whether the d'e- posit was with the bank ; and, this having been found, that defendant was bound to return the bonds when demanded, or to show some suffi- cient ground for not doing so. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 852. There was no direct explanation of the manner of the loss r but the evidence tended to show that the bonds were stolen in the day time, when the bank was open. They were kept in a safe, so placed as to be accessible to any person entering the bank from the street, while those in the bank were so placed that at times the safe was not in their OF STANDARD DECISIONS. 119 view, and sometimes the door of the safe was left open. Held, that the evidence authorized a finding, that the bonds were stolen by some one coming in from the street ; and that leaving the property thus exposed was gross negligence. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 853. Also, held, that the fact that property of the bank was stolen from the same place, at the same time, was not conclusive against the charge of gross negligence. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 854. As to whether, assuming the receipt of special deposits to have been beyond the legal power conferred upon defendant, yet having in fact received plaintiffs property into its custody, it could set up its own want of corporate power as a defence, quaere. Pattison v. Syra- cuse. Nat. Bank, 80 N. Y. 82. 855. The authorities upon the subject of the liability of banks for special deposits collated. Pattison v. Syracuse Nat. Bank, 80 N. Y. 82. 856. The C. N. Bank, having received from a customer of the M. and M. Bank a check upon that bank, sent it to the drawee for pay- ment ; the M. and M. Bank charged the check to the drawer, whose ac- count was then good for the amount, and returned the check to the drawer as paid ; it sent to the C. N. Bank a draft on a New York bank for the amount of the check ; two days after the M. and M. Bank closed its doors and a receiver of its assets was appointed ; the draft was not paid. On application by the C. N. Bank for an order requiring the receiver to pay the amount of the check, upon the ground that the assets came to the hands of the receiver impressed with a trust in favor of the C. N. Bank, held, that the order was properly denied; that in order to authorize the relief prayed for it was necessary to trace into the hands of the receiver money or property which belonged to the C. N. Bank, or which had, before the receivership, been set apart and appropriated to the payment of the check ; that charging said check and returning it to the drawer did not amount to a payment and set- ting apart of sufficient of the drawer's deposit to cover it, nor did it impress a special trust on any part of the drawer's assets ; but by the transaction the drawee simply reduced its indebtedness to its deposi- tor to the amount of the check, and constituted itself a debtor to the holder to a corresponding amount. People v. Mer. and Nech. Bank. 78 N. Y. 269. 857. Defendant, as collateral security for a loan made to him by a bank, delivered to it certain securities, which were taken and converted by B., the president of the bank. In an action by the receiver of the bank to recover the amount loaned it appeared and was found that the trustees of the bank left the entire management of it with B. and one O., who was styled " manager ; " that the trustees took the statement of B. without question or examination ; that the securities were taken without objection on the part of the trustees or officers ; that no meet- ings of the trustees were held pursuant to the by-laws, or examination made by them of the securities, and they exercised no care or vigilance in regard to them ; also, that B. had been in the habit of abstracting securities and using them in his private business, most of them being returned when called for ; that 0. had knowledge of this habit and took no means to prevent it, or to notify the trustees. Held, that the bank was chargeable with negligence, and defendant was entitled to counterclaim the value of the securities; that the bailment was for 120 MONROE'S DIGEST mutual benefit, and in such case the bailee was bound at least to exer- cise ordinary care ; also, that the bank was under an implied obligation by the transaction to return the securities when the debt was paid ; that the failure to do so rendered it presumptively liable, and the onus was upon it to relieve itself from that ; also, held, that the bank was not excused, by the fact that B. having access to the securities might have abstracted them secretly, although the utmost vigilance had been used, as the point was whether care or diligence would have prevented what was actual^ done. Cutting v. Marlor, 78 N. Y. 454. 858. Defendant and others executed a bond, by the terms of which each one severally obligated himself to pay a separate and specified :sum to the Third Avenue Savings Bank, on the 1st day of January, 1883, " or six months after a demand therefor." When the bond was :given the assets of the bank had become impaired, and the bond was executed for the purpose of being exhibited to the bank department as an asset, so that the bank might pass examination and be enabled to continue its business. Hurd v. Kelly, 78 N. Y. 588. 859. In an action by a receiver of the bank upon the bond, held, that the intent to be gleaned from the language of the bond was to fix the day specified as the date when the obligation should mature, in the absence of any prior demand, and to enable the bank to accelerate the time of payment by a six months' demand ; that the circumstances, under which the bond was given, confirm this construction ; and that, therefore, an action brought before the day specified, but six months after demand, was not premature. Hurd v. Kelly, 78 N. Y. 588. 860. The consideration expressed in the bond was that said bank, upon the request of each of the obligors, continues its business after January 15th, 1873, and of the mutual convenants contained therein. The bank did continue in business after the time specified and until December, 1875, when plaintiff was appointed receiver. Held, that the continuance in business, and the incurring of new obligations in- cident thereto, was a good consideration. Hurd v. Kelly, 78 N. Y. 588. 861. Also, held, that the transaction was not in violation of public policj T , and even if it was ultra vires, that objection could not prevail as against the claims of depositors who are represented by the receiver. Hurd v. Kelly, 78 N. Y. 588. 862. What are proper allowances on settlement of accounts of re- ceiver of insolvent savings bank. In re G. Sav. Institution, 78 N. Y. 408. 863. Bank stock assessed under the provisions of the act author- izing the taxation of stockholders of banks (Chap. 761, Laws of 1866), it is the duty ot the assessor to deduct from the actual value of each share, a sum bearing the same proportion thereto as the annexed value of all the capital stock ; the words " whole amount of the capital stock," as used in said act, has reference to its value, not to the nom- inal amount of capital. People, ex rel. v. OomV's of Taxes, 69 N. Y. 91. 864. Article 13 of the State constitution, entitled " Banks and currency," applies to banks of issue, and does not prohibit the Legisla- ture from creating banks of deposit and discount. When an incorpo- ration, attempted in good faith under a general incorporation law, by OF STANDARD DECISIONS. 121 the requisite number of corporators, will be deemed a corporation de facto. Pape,\. Capital Bank, 20 Kansas, 440. 865. When a bank has become involved and under the general laws it is sought to make the directors and stockholders liable for its debts, proceedings must be in the name of the assignee, and in the Court of Common Pleas of the County in which the bank is located. The liability of the stockholders being secondary cannot be enforced until the assets of the bank, which is the primary debtor, are exhausted. Mean's Appeal, 85 Penn. St. 75. 866. The stockholder of a national bank has legal capacity to sue such corporation for misappropriation of the stockholder's funds, and for other causes. A corporation being a legal entity, as such, distinct from its members, incorporators, or stockholders, it follows that each or all of them may have grievances redressed by actions at law or proceedings in chancery, as any creditor not occup} T ing that re- lation. Wilson v. First National Bank, 1 Wyoming, S. C. Rps. 108. 867. Money paid to the cashier of a bank for the use and benefit of the bank, is payment to the bank itself. If such cashier misapply the funds so received, the bank, as his principal, can maintain an action against him, but not the person paying the money. If the latter suffer injury by reason of such misapplication, his remedy lies against the bank and not against its officer or servant. An agent receiving money from a third person for his principal, if he acted within the scope of his authority, and has the right to receive such payment, is not respon- sible to the third person ; payment to the agent is payment to the principal, who is responsible for the default of the agent. Wilson v. Rogers, 1 Wyoming Sup. Ct. R. 51. 868. Under the general power of discounting negotiable notes, granted by section 127 of the corporation law to savings associations, such institutions have the power to purchase such notes. Pape v. Capital Bank, 20 Kansas, 440. 869. Banks organized, prior to the Amendment of General St. c. 13, under the provisions of that chapter had no power to purchase or traffic in promissory notes as choses in action, or as a specie of per- sonal property. The power to carry on the business of banking, by discounting bills, notes, and other evidences of debt, is not within the meaning of that section, a power to buy such securities, but to loan money thereon, with the right to take lawful interest in advance. In First National Bank of Rochester v. Pierson, decided September 21, 1877 (to appear in 24 Minn.), the rule laid down in this case was held to apply to national banks. Farmer's and Mechanic's Bank v. Baldwin, 23 Minn. 198. 870. Under Section 23, Chapter 34, laws of 1876, a private banker is subject to taxation upon the average amount of deposits made by him in his business. Knox v. Comm'rs of Shawnee Co., 20 Kansas, 596. 871. I., the president of a national bank in Nebraska City, ob- tained from K., in the city of Omaha, his (K.'s) promissory note for the sum of $2,000, payable to I. or order, and payable on demand, for the purpose of purchasing stock in the bank of which he was president. I. procured the note to be discounted by his bank, and had the pro- ceeds thereof placed to his credit therein, and he afterwards drew the 122 MONROE'S DIGEST same out by checks on the bank. None of the officers of the bank, except the president, were aware of the character of the note, or that it had been given for stock, held hi an action on the note, that the bank was entitled to recover. Kennedy v. Otoe Co. Nat. Bank, 1 Neb. 59. 872. Like other agents, the president of a bank must act within the scope of his authority, in order to bind his principal, unless hi& acts have been ratified. Ibid. 873. The word " discount " signifies, " The act of buying a bill of exchange, or promissory note, for a less sum than that which upon its face is payable." Pape v. Capital Bank, 20 Kansas, 451. 874. A bank may maintain an action in its corporate name to re- cover back a tax illegally assessed and collected against its shares of capital stock, though such stock stands in the names of different in- dividual shareholders. The payment of the illegal portion of the tax being one for which the shareholders were not responsible. Kimball v. Corn Exchange Nat. Bank, 1 Bradwell's 111. App. R'pts. 209. 875. The banker having put the mone}' for a check on the counter and the payee having taken it up, the payment is complete though the counting is not finished. Chambers v. Miller, C. vi. 125 ; 13 C. B. N. S. 12'5, (Eng. Com. Law.) 876. A countiy banker receiving a check on another country banker in another town, has until the next day to transmit it for pre- sentment. Hare v. Henty, C. 65, 10 C. B. N. S. 65, (Eng. Com. Law.) 877. A bank discounting a note before its maturity is not charge- able with the knowledge of illegality or want of consideration ac- quired by one of its directors in other than his official capacity ; such director not having acted with the board in making the discount. A director offering a note of which he is owner to the bank of which he is a director, for discount, is regarded in the transaction as a stranger, and the bank is not chargeable with the knowledge of such director of an infirmity or defect in the consideration of the note. P. was a member of the firm of M. & J. S. P., and also a director of the bank of H. He obtained at the bank the discount of a note belonging to the firm, which had been got of the maker by fraud. He had notice, as a member of the firm, of the fraud, before the note was offei-ed for discount, but did not communicate his knowledge to any of the officers of the bank. Held, that the knowledge of P. was not, constructively, notice to the bank. First Nat. Bank of Hightstown \. Christopher^ 40 N. J. L. R. 435. 878. Persons who hold stock in pledge, the certificates of which stand on the books of a national bank in the name of the pledgee, are in contemplation of the National Banking Act, stockholders, and so long as they thus hold the stock in pledge, are responsible to the creditors of the bank in proportion to the amount so held. But a sale of the stock under an authority conferred by the terms of the pledge, is not obnoxious to the charge of having been done in fraud of credit- ors, although its leading object and purpose may have been on the part of the pledgee to avoid liability as a stockholder, under the twelfth section of the National Banking Act, which provides for the personal liabilit} 7 of stockholders of national banks for the debts of the corporation, in proportion to the amount of stock held by them, and enacts that every person becoming a shareholder by transfer, shall sue- OF STANDARD DECISIONS. 123 ceed to all the rights and liabilities of the prior holder of such shares. Magruder Receiver v. Colston, et. aL, 44 Md. 349. 879. The provisions of the act of 1875, in relation to savings banks ( 48, chap. 371, Laws of 1875), providing that savings banks shall have a preference for moneys deposited over other creditors of an insolvent bank, only applies to deposits made in the ordinary course of business, and subject to the drafts of the depositors, to an amount not exceeding that authorized by section 27 of said act. Loans r whether on time or payable on call, are not deposits within the mean- ing of said provisions. A loan cannot be changed into a deposit by reason of any want of authority in the managers of the savings bank to make the loan, or for the reason that it may have been made in vio- lation of law. Rosenback v. M. &. B. Bank, 69 N. Y. 358. 880. A national bank has corporate power to enter into an agree- ment with a customer to exchange for him non-registered U. S. bonds- for registered bonds, and it is bound by an agreement to that effect made for a sufficient consideration by its cashier. Yerkes v. National Bank, 69 N. Y. 382. 881. Where it is sought to hold one who, while president of a bank T loaned moneys of the bank to an irresponsible person, liable for the same on the basis of his representations to the cashier at the time of the loans that he was interested with the borrower, and would see the amounts repaid, it is error to permit the party to testify whether he ever regarded himself as liable ; his opinion respecting his legal liabil- ity had no bearing on the case. First National Bank of Sturgis v, Reed, 36 Mich. 263. 882. A bank president who, while in general charge of the busi- ness with the cashier under his authority, has permitted and directed drawing of moneys from the bank without security by one known or supposed to be irresponsible, and with whom he was interested in the business for which the money was obtained, and has requested the cashier not to say anything to the directors about it, is held personally liable to the bank for the moneys thus paid out b}- him in violation of his trust. Ibid. 883. The' fact that the moneys thus drawn out were by the cashier, by direction and on the authority of the president, charged on the books of the bank to the irresponsible borrower, would not neces- sarily determine the transaction as a loan to him by the bank ; but the bank, in the absence of any act of ratification or acquiescence on its part, would have a right, under the circumstances, to repudiate it as a transaction witli the nominal borrower, and to insist on repayment by its president. Ibid. 884. And such president, if he persuaded the cashier not to make known the facts to the directors, could claim nothing because of the cashier's knowledge ; that officer's silence might, under such circum- stances, make him accessor}' to the fraud, but could not tend to excuse the principal. Ibid. 885. The question of the effect to be given to the long silence of the bank directors after the charge to the nominal borrower was en- tered upon the bank books, is one of ratification, and should be sub- mitted to the jury as such. Ibid. 886. An agent's admissions made after the fact, and entirely un- 124 MONROE'S DIGEST connected with any act of agency, are not evidence of the fact Bowen v. School District, etc., 36 Mich. 1. 887. Proof that a person is clerk for another does not establish his right to receive for his employer payment of demands not shown to have any connection with the business ; and evidence simply that payment was made to such clerk of such demands, is not a sufficient showing of agency to receive the same, to authorize evidence of ad- missions by such clerk of the payment thereof to him. Ibid. 888. The Third National Bank of Baltimore was organized under the National Currency Act of 1864, ch. 106. The firm of W. A. B. & Co., of which W. A. B. was the senior member, was a large custo- mer of the bank through which all the banking business of the firm, was transacted, and from which it received accommodations as needed. On the 5th day of February, 1866, the firm was indebted to the bank about $5,000, when the appellee voluntarily proposed to the president of the bank, to deposit with the bank a large amount of bonds, about $37.000, as collateral security for his present and further indebtedness. The terms of the deposit as agreed on between M. Boyd and the presi- dent, were dictated by the latter to the discount clerk and were as follows: Third National Bank, February 5th, 1866. William A. Boyd has deposited with the Third National Bank of Baltimore, $20,- 000 in United States 5-20 bonds, and $1,500 5-20 July, 1865 ; $5,000 Hudson County, New Jersey ; $5,000 Town of Saratoga, New York, 7 per cent, bonds ; $5,000 Stock of Third National Bank of Baltimore, as collateral security for the payment of all obligations of Wm. A. Boyd and Wm. A. Boyd & Co., to the Third National Bank of Baltimore, at present existing, or that may be incurred hereafter, with the under- standing that the right to sell the above collaterals in satisfaction of such obligations, is hereby vested in the officers of the Third National Bank. (Signed) A. H. Barnitz, "Discount Clerk." " The firm was not indebted to the bank subsequent to July, 1872, when it paid its last indebtedness the bonds were not withdrawn, but left with the de- fendant, under the original agreement. The bank was robbed and the bonds stolen in the manner described in the testimony, between Satur- day evening the 17th, and Monday morning the 19th of August, 1872 ; the bank was entered by burglars and certain of the bonds were stolen. 889. By section 8 of the Act of Congress of 1864, ch. 106, a bank organized thereunder, is authorized to exercise all such incidental powers as shall be necessary to carry on the business of banking, by discounting promissory notes, drafts, bills of exchange and other evidences of debt ; by receiving deposits, by buying and selling ex- change, coin and bullion ; by loaning money on personal security, and by obtaining, issuing and circulating notes according to the pro- visions of this Act." In an action by W. A. B. against the bank, to recover the value of the bonds which were stolen, it was held, 1st, That the contract entered into by the bank was not a mere gratuitous bailment. 2d, That the bank had the power to enter into the con- tract, it being within the terms of the Act of Congress. 3d, That the original contract of bailment being valid and binding, the obligation of the bank for the safe custody of the deposit did not cease when the plaintiff's debt had been paid. 4th, That the defendant was responsible if the bonds were stolen in consequence of its failure to exercise such OF STANDARD DECISIONS. 125- care and diligence in their custody or keeping as at the time, banks of common prudence in like situation and business, usually bestowed in the custody and keeping of similar property belonging to themselves; that the care and diligence ought to have been such as was properly adapted to the preservation and protection of the property, and should have been proportioned to the consequences likely to arise from any im- providence on the part of the defendant. 5th, That the proper measure of damages was the market value of the bonds at the time they were stolen. Whether due care and diligence have been exer- cised by a bank in the custody of bonds deposited with it as collateral security, is a question of fact exclusively within the province of the jury to decide. Third National Bank v. Boyd, 44 Md. 47. 890. One dealing with a corporation in matters not falling within the purview of its delegated powers, is not thereby estopped from pleading its want of authority, to make the contract sought to be enforced against him. Marion Savings Bank v. Dunkin, 54 Ala. 471. 891. Where, however, the contract is within the delegated powers r one who has dealt with it in its corporate character, is in general estopped from setting up its want of complete organization, according to the provisions of its charter, to defeat the corporation in the en- forcement of the contract he has made with it. Ibid. 892. The accommodation drawee of a bill of exchange, which was- discounted by a bank, for the acceptor who procured it to raise money for his own use in that way the drawer not being aware of this and not being present or participating in the negotiations is not thereby estopped from denying the proper organization of the banking corpo- ration, when sued by it on the bill. Ibid. 893. Under the provisions of the Revised Code (Part 2, Title l r Chapter 1, 1644, et. reg.) as amended by the Act of 1868, " supple- mentary to the corporation laws of Alabama," a corporation is suffi- ciently organized to carry on the business of a bank of discount and deposit and loaning money, when the certificate of the associates (properly acknowledged and recorded) for the purpose of carrying on such banking business, shows the name selected by the associates ; the town where its business is to be conducted ; the amount of capital stock (within the limits prescribed) and the number of shares into which it is divided ; the name and place of residence of th'e stockholders - r the shares held by them respectively, and the time when the association is to begin and terminate. The association not claiming the right to issue or circulate its own notes, no deposits of money and transfer of stock to the auditor (under 1644 and 1646 of the Revised Code) is necessary to authorize it to carry on other banking business. Marion Savings Bank v. Dunkin, 54 Ala. 471. 894. The dissolution of a partnership with an individual banker does not relieve the retiring partner from liability for subsequent de- posits made, without notice of the dissolution, by one who had been before a depositor. Howell v. Adams, 68 N. Y. 314. 895. The liability of the retiring partner is not changed by the fact that the depositor did not know that he was a partner. Ibid. 896. So also, the alteration of a certificate of deposit in respect to- the rate of interest, made after the dissolution of the partnership by 126 MONROE'S DIGEST the partner continuing the business, but before notice to the holder, does not relieve the retiring partner ; such holder having the right until notice, to treat the partnership as continuing, the alteration will be deemed to have been authorized. Ibid. 897. Proof of publication of notice of dissolution in newspapers, in the place where the bank was located, unconnected with any evidence that the depositor resided there, or took the papers, is but slight, if .any, evidence of notice; and when he testifies that he never saw the notice or heard of the dissolution will not authorize a finding of notice. Ibid. 898. A bank is not liable upon a cei'tificate of deposit until after demand of payment, and therefore, the statute of limitations does not begin to run against it until demand is made. Ibid. 899. Where a savings bank is bound by its rules to exercise its best care to prevent fraud, it is not protected by a clause in such rules that a payment to one producing a deposit book shall be deemed good and valid, in case of a payment made by it, merety upon the pro- duction of a depositor's book, to one who has wrongfully obtained possession of and produces it under circumstances such as would necessarily excite suspicion and inquiry ; as where the person who pre- sents the book is of a different sex from the depositor. In the absence of any rules assented to by its customers a savings bank is to be governed by the same legal principals which apply to other moneyed institutions. Where it has prescribed rules to which a depositor has rassented, they are the agreement between them, and each must con- form to them to preserve rights against each other. The by-laws of defendant's, a savings bank, which were printed in its customers' de- posit book, contained the following : " The bank will use its best efforts to prevent fraud ; but all payments made to persons producing the deposit books shall be deemed good and valid payments." It was .also worded that drafts might be made personally, or by order in writing of the depositor if the bank have his signature on the signa- ture book. Plaintiff was a depositor, and defendant had his signature in such book. The wife of plaintiff wrongfully obtained possession of his deposit book, which she presented with a forged check or order, for $2,850, and this sum was paid her. In an action to recover the amount the order and the signature book were produced on the trial. De- fendants' own officers, as witnesses, stated that there was a difference between the signature to the order, and that in the signature book. They declined to charge that the payment was valid, but left it to the jury to determine whether defendant used its best efforts to prevent fraud. Held, that as this court had not the benefit which the trial court had of the inspection of the signatures it could not say but that said court on inspection, discovered such a difference, as with the other circumstances of the case, authorized an inference of negligence and made a submission of the question to the jury proper. Also held, that a request to charge that if the defendant exercised ordinary care and diligence, and paid in good faith, it was excused, was properly refused, as defendant had obligated itself to exercise more than ordinary care, i. e., its " best efforts." Allen v. Williamsburgh Savings Bank, 69 N. T. 314. 900. A bank which has fraudulently permitted funds on deposit OF STANDARD DECISIONS. 127 belonging to a trust estate to be transferred to the individual account of the trustee, is properly chargeable with interest from time of such transfer. Holden v. N. Y. and Erie Bank, 72 N. Y. App. 286. 901. A national bank, the defendant, had in its house certain United States bonds belonging to plaintiff; its cashier in the spring of 1869, for a sufficient consideration, agreed to exchange the same for registered bonds. This the bank neglected to do, and November, 1869, the bonds were stolen. In an action to recover their value, held, that defendant was liable. Yerkes v. Nat. Bank of Port Jervis, 69 N. Y. 382. 902. Where half of bank note sent in payment, other half to fol- low, title to note remains in sender. The payment is conditional and inchoate, and therefore revocable. Smith v. Munday, C. vii. 22 ; 3 E. A E. 22. (Eng. Com. Law.) BILLS OF EXCHANGE. 903. A bill of exchange specially indorsed, " Pay J. C. or order on account of B. G. & S.," was indorsed generally by J. C., sent by liim to his correspondents, and paid by the drawers. J. C. failed about an hour before this payment was made, in debt to his cor- respondents, and this failure was known about an hour after payment made. His correspondents applied the amount of the payment to re- ducing their claim against J. C. In an action by B. G. & S. against these correspondents to recover the amount of the payment, Held, that the special indorsement showed that no consideration had been paid for the bill by J. C. ; that it was notice to all subsequent holders that J. C. held the bill in trust for B., G. & S. for collection ; that this trust followed the bill, and that neither J. C. nor his indorsees had any property in the bill. Held, further, that the defendants, not hav- ing paid the money over to J. C. before hearing of his failure, could not apply it to reducing the debt owed them by C. Held, further, that B., G. & S. were the real owners of the bill, and as such entitled to re- cover. 904. A general indorsement- of bills is prima facie evidence of property in the indorsee : but notwithstanding a general indorsement, paper sent only for collection will still remain the property of the sender as to all persons having notice. Elaine v. Bourne, 11 R. I. 119; also Bank of Metropolis v. New England Bank, 6 How. U. S. 212 ; Collins v. Martin, 1 B. & P. 648 ; Wilson v. Smith, 3 How. U. S. 763, 769. 905. Acceptance of a bill of exchange in these words : " Accepted. Payable after my advances are paid," may be explained by parol evi- dence, so far as to show what advances were meant, even including future advances. A conditional acceptance of a bill of exchange makes a new contract between the payee and acceptor, which can be enforced only on averment and proof that the condition has been per- formed. Shackelford v. Hooper, 54 Miss. 716. 906. The intention to assign a fund in the hands of another, founded upon sufficient consideration and expressed by a bill of ex.- 128 MONROE'S DIGEST change, operates as an equitable assignment to the payee. A., living in this State, had a certain fund to his credit in the hands of B. in New York, and on July 30th, 1861, gave to C., for sufficient considera- tion, a bill of exchange upon B. for the whole amount of the fund ; the bill of exchange was immediately indorsed by C. to D. (residing in New York) and mailed to his address, civil war between the States being then raging ; the bill of exchange was never received by D. nor had he notice of it until 1866, when he was informed of the remittance by C., who had, however, then forgotten of whom he had purchased the bill ; in 1865, the fund in the hands of B. was collected of him by A., in 1876, C. ascertained, by finding a memorandum upon an old check book, that the bill of exchange had been purchased from A. ; D. thereupon, in 1876, made a demand upon A. for payment to him of the fund, which A. declined to pay, and D. thereupon instituted suit against A. for the same. Held, that D. was entitled to recover. In such case, even if it was negligence upon the part of C. to have for- warded the bill of exchange by mail, A. was contributory to it and cannot take advantage of it. The statute of limitations did not begin to run against D., in such case, until after the demand made by him upon A. in 1876 for the amount of the fund. Kahnweiler v. Anderson, 78 N. C. 133. 907. Although bills of exchange, drawn and accepted by the same parties, may be in strictness promissory notes rather than bills, yet where the intention to give and receive such documents as instruments capable of being negotiated in the market as bills of exchange is clear, both the holders and the parties may treat them accordingly. A cus- tom as to allowing a fixed precentage by way of liquidated damages in lieu of exchange, reexchange, and other charges, when the bills are returned from the colonies dishonored, however valid in law, does not apply in the absence of an agreement, express or implied, to allow re- exchange. When the holders of bills drawn by P. L. & Co., in Lon- don, on P. L. & Co., in Australia, having no occasion to transfer money from London to Australia, sent them to the latter country, not for the purpose of employing the proceeds there, but of having them remitted to London, the dishonor of such bills does not entitle the holders ta recover damages by way of reexchange. 908. The right to " reexchange, 11 " in the absence of express agree- ment, arises when the holder of a bill who has contracted for the trans- fer of funds from one country to another has sustained damages by its- dishonor, through having to obtain funds in the country where the bill was payable. " Reexchange " is the measure of those damages Wil- lans v. AyerSj 41 Eng. Law Reports, 3 Appeal Cases, 148 1878. 909. H. drew and indorsed a bill of exchange on A. for the ac- commodation of the latter, who discounted it at a bank. Held, a re- mittitur by the bank of a judgment on the bill against A., discharged H, from liability as drawer and indorser. Case v. Hawkins, 53 Miss. 702, 910. In an appeal by the indorser of a bill of exchange who had been condemned with the makers, Held, that to hold the indorser, de- mand of paj'ment ought to have been made on the third day of grace,, with protest and notification, and that, even when the bill was made payable at the residence of the holder himself. Knapp, et al. v. The Bank of Montreal, 1 L. C. R. 253, Q. B. 1850 ; 2306 et seq. C. C. OF STANDARD DECISIONS. 129 911. Plaintiff chartered defendant's vessel for a voyage from Charleston to Liverpool or Havre, for a sum named ; bills of lading were to be signed by the master but without prejudice to the charter. It was agreed that any difference between the bills of lading and the charter-party was to be settled at Charleston before the vessel sailed, in accordance with the rates of freight, weight, etc., expressed in the bills of lading, if in the charterer's favor, " by the captain's bill, payable ten days after arrival at the port of discharge." Plaintiff furnished a cargo of cotton consigned to Liverpool. By the custom at that port, which was well known to plaintiff and the master, freight is only col- lectible on net weight of cotton. Plaintiff calculated the freight upon the gross weight of the cotton covered by the bills of lading, and after the vessel was laden ready for sea he demanded of the master a bill of exchange for the difference; the latter objected on the ground that the tare should be allowed. Plaintiff was agent for the owners of the vessel and he alone could get clearance for her at the custom- house ; he refused to clear and allow her to proceed unless the master would sign the bill and an agreement that the question in dispute should abide the decision of the " United States Court at Charleston " in a case then pending. The captain thereupon signed. In an action upon the bill so given, held, that the charter-party contemplated the bills of lading should be resorted to in the first instance as a means of payment to the shipowners, and plaintiff was entitled to credit for no more than they actually represented ; i. e., the amount collectible thereon ; that in the absence of words of exclusion in the charter- party it should be held to have been framed in reference to the usage, which should, therefore, have been taken into consideration in estimat- ing the amount due on the bills of lading ; and that defendants were not concluded by the bill of exchange or the agreement : 1st, As the bill was not delivered in final settlement of the claim but under an agreement in effect, an arbitration, which the captain as agent for the owners had no authority to make ; 2d, Because the unlawful refusal of plaintiff to allow the vessel to leave the port until the bill was signed constituted duress. McPherson v. Cox, 86 N. Y. 472. 912. It seems that it is not duress for a person to insist on his legal rights. McPherson v. Cox, 86 N. Y. 472. 913. Where a bill of exchange is made payable to and indorsed by " A. B., Agent " the word " Agent " is a mere designatio personse, and, in an action against him as indorser, parol evidence is inadmissible to show that he was mereh' an agent, and that the plaintiff knew this fact. Bartlett v. Hawley, 120 Mass. 92. 914. The words " I take notice of the above," written and signed upon an unnegotiable bill of exchange by the drawer, do not of them- selves necessarily impart an acceptance of it, and parol evidence of a refusal to accept by the drawee, at the time of its presentation, is ad- missible. Cook v. Baldwin, 120 Mass. 317. 915. A part payment by the drawee of a bill of exchange is not such a recognition of his obligation as will, as matter of law, bind him to pay the remainder. Ibid, 916. The fact that the name of an acceptor was written across the stamp before the bill was drawn does not reasonably raise an inference 9 130 MONKOE'S DIGEST that the bill was accepted for the accommodation of the drawer. Har- ris v. Sterling, 9 Ir. R., C. L. 198 Exch. 917. Evidence that the holder of a bill of exchange had notice, shortly before maturity, that it had been accepted for the accommoda- tion of the drawer, is not evidence that he had such notice at the time of discounting the bill. Ibid. 918. An action upon a bill of exchange against the drawer thereof, the latter may defeat the action by showing that there was no consideration therefor, except where it has passed into the hands of a bona fide holder for value before maturity. McCulloch v. Hoffman, 17 N. Y. Sup. Ct. Reps. 133. 919. Where such defence is interposed the defendant may show all that occurred at the time of the making of the bill, not to limit its effect or change its character, but to establish the absence of any con- sideration and the knowledge of the plain tiff of that fact. Ibid. 920. The authority of an agent to receive payment by an accept- ance of a bill drawn in blank, does not carry with it an authority to the agent to draw a bill payable to his own order. Hogarth v. Wher- /q/,32 L. T. N. S. 800 ; 10 L. R. C. P. 630 ; 44 L. J. C. 330. 921. When by the contract for sale and purchase of goods it is stipulated that payment should be made by the buyer's acceptances of the sellers' drafts, if before the time for delivery of the goods the pur- chaser becomes insolvent, or the acceptances are dishonored, the vendor still has a lien for unpaid purchase money. Difference in this respect between acceptances of the purchaser and those of a third person. Gunn v. Bolckow, Vaughan & Co., 44 L. J. Chanc. 732; 10 L. R. Ch. "491 ; 32 L. T. N. S. 781. 922. A bill of exchange drawn in one State upon a party in another, the known and common purpose of both parties being to carry on a business declared unlawful by statute of the first State, is void as to the drawer in the hands of a party to the bill having notice of its true character. Davidson v. Lanier, 4 Wall. II. S. 447. 923. The matter of bills of exchange when drawn by officers of the government, examined ; and the law decided to be, that as under ex- isting laws there can be no lawful occasion for an officer to accept drafts on behalf of the government, such acceptances cannot bind it, though there may be occasions for drawing or paying drafts which may bind the government. The Floyd Acceptance, 7 Wallace, U. S. 666. 924. The drawer of a check undertakes that the drawee will be found at the place where he is described to be, and that the sum speci- fied will there be paid to the holder when the check is presented ; and if not so paid and he is notified, he becomes absolutely bound to pay the amount at the place named. Hibernian Nat. Bank v. Lacomb, 84 .N. Y. 367. 925. The rights of the parties, therefore, are to be governed by the laws of the place of payment. Hibernia Nat. Bank v. Lacomb, S4 N. Y. 367. 926. The plaintiff, a national bank, organized and having a place of business in New Orleans, purchased, for value, of defendant, the M. & T. Bank, a Louisiana corporation, a draft drawn on bankers in the city of New York for $10,000, payable to plaintiff's order ; the draft was duly presented to the payees at New York, and payment refused; OF STANDARD DECISIONS. 131 it was duly protested and notice given to the drawer. An action was thereupon commenced in the Supreme Court and an attachment issued, which was served on said bankers, who had funds of the M. & T. Bank in their hands. Held, that, under and within the meaning of the pro- vision of the Code of Procedure ( 427), providing that an action .against a foreign corporation may be brought in the Supreme Court by a plaintiff not a resident of this State, u where the cause of action shall have arisen in this State," plaintiff was to be regarded as a non-resi- dent ; that the cause of action arose in this State ; and that, therefore, the court had jurisdiction of the action. Hibernia Nat. Bank v. La- comb, 84 N. Y. 367. 927. After the delivery of the draft to plaintiff, the M. &. T. Bank was placed in liquidation under the laws of Louisiana, and com- missioners were appointed to take possession of and administer its assets ; they were made defendants, and claimed title to the attached property. Held, that neither the law nor the adjudication under which said commissioners were appointed could have any operation here to defeat or affect the lien of plaintiff's attachment. Hibernia Nat. Bank v. Lacomb, 84 N. Y. 367. 928. Where a bill of exchange is paid to one who holds it in good faith and for value, he cannot be called upon to account for the money paid, upon proof that in transactions between the drawer and drawee, of which he had no knowledge or means of knowledge, there has been some fraud or mistake to the injury of the drawee ; and this, although the holder, not having parted with value at the time when he took the draft, could not have enforced it against the drawee, even after ac- ceptance. Southwick v. First Nat. Bank, 84 N. Y. 420. 929. This rule is based upon principles of public policy. South- wick v. First Nat. Bank, 84 N. Y. 420. 930. In March, 1873, T. of the firm of S., T. & Co., doing busi- ness at Memphis, drew his draft upon that firm, payable to the order of J. N. M. & Son, a Boston firm. The draft was accepted by the drawees, payable at Memphis in forty days. The holder sent the draft to Memphis for collection. Before it fell due the drawees noti- fied the payees that they would not be able to meet it, and requested permission to draw for the amount. Permission was granted by tele- gram to draw at sight to pay said draft. S., T. & Co., thereupon drew upon J. N. M. & Son a sight draft for the amount. This draft was dis- counted by defendant, and with the assent of the drawers the proceeds were placed to their credit, their account with defendant being at that time overdrawn to more than the amount. J. N. M. & Son accepted the new draft on presentation, and subsequently paid it. S., T. & Co. drew a check on defendant to pay the old draft which it refused to honor, and refused to pay said draft when presented. S., T. & Co. soon after became insolvent. In an action to recover the amount of the new draft it was not alleged nor was it proved, that a demand or offer to return the draft was first made, or that defendant had any knowledge of the telegram, or the purpose for which J. N. M. & Son authorized the drawing of the new draft. The court directed a verdict for plaintiff. Held, error; that neither a cause of action for a conver- sion of the draft, nor one to recover back moneys paid by mistake, was established. Southwick v. First Nat. Bank, 84 N. Y. 420. 132 MONROE'S DIGEST 931. The complaint alleged that defendant was notified of the pur- pose for which the new draft was authorized to be drawn ; that it re- ceived it, agreeing to collect and apply the proceeds for that purpose,, but that it refused so to do. Held, that the court erred in denying a motion for a non-suit, as plaintiff failed to prove the cause of action alleged in the complaint. Southwick v. First Nat. Bank, 84 N. Y. 420.- 932. It seems, that had the complaint been sufficient, and had a. proper demand been made, plaintiff would not have been entitled to- recover Southwick v. First Nat. Bank, 84 N. Y. 420. 933. There is no implied warranty or representation on the part of the vendor of a bill, valid in the hands of an indorsee, that it was drawn against funds, or that it was not accommodation paper. People's Bank v. Bogart, 81 N. Y. 101. 934. A vendor of a bill purchased by him from and known by him to have been drawn for the accommodation of the acceptor, and a& a means of borrowing money by the latter, is not bound, in the absence of any inquiry on the part of the vendee, and where the means of in- formation are open to the latter, to disclose at the time of the sale the circumstances under which the paper was made. People's Bank v. Bogart, 81 N. Y. 101. The rule of caveat emptor applies in such a- case. People's Bank v. Bogart, 81 N. Y. 101. 935. D., S. & Co., a banking and commission firm, accepted draft* drawn upon the firm by B., a clerk in their employ, which were pur- chased by defendants, who were note-brokers. B. had no funds on de- posit, and said firm was not indebted to him. Defendants knew that the drafts were not drawn against funds ; but were issued by D. S. & Co., as a means of borrowing money. Plaintiff had no such knowl- edge. Defendants had been accustomed for several years to purchase similar acceptances and to sell them in the market. Plaintiff had purchased large amounts of them from defendants and other brokers. In pursuance of their custom defendants immediately after said pur- chase sent a written notice to plaintiff that they had for sale accept- ances of D., S. & Co., stating the price paid and for what they would sell. Plaintiff purchased a portion of the paper. Defendant made no express representation of any kind as to the paper and no inquiry was- made by plaintiff as to its origin, character or consideration. D., S. & Co., failed a few days after ; up to the day of such failure that firm had enjoyed the highest financial credit and standing, and it did not appear that defendants had any knowledge or information that it was in embarrassed circumstances. Held, that" an action to recover back the moneys paid for the acceptances on the ground of fraud, on the part of defendants, in concealing their knowledge of the origin and consideration of the paper was not maintainable. People's Bank v. Bogart, 81 N. Y. 101. 936. Prior equities of antecedent parties to negotiable paper, transferred in fraud of their rights, will prevail against an indorsee who has received the paper in nominal payment of a precedent debt, where there is no evidence of an intention to receive it in absolute dis- charge and satisfaction beyond that of accepting or receipting it in payment, or crediting it on account. Phoenix Ins. Co. v. Church, 81 N. Y. 218. 937. When a party authorized by another to draw different drafts OF STANDARD DECISIONS. 133 on him upon different consignments to be made, and this other made different consignments and drew different drafts, the party authorizing the drafts accepts them in advance, and is bound to set aside and hold enough money from the proceeds of the consignment to pay them, come in for payment when they may. If he settle an account and pay over his balance without doing so, it is at his own risk. Miltenberger v. Cooke, 18 Wall. U. S. 421. 938. If the holder of a bill of exchange locks it up for two years lie makes .it his own, and cannot have recourse to the person from -whom he received it. Rouleau v. Tourangeau, 2 Rev. de Leg. 30, K. E. 1820. 939. Action on draft drawn in New York for goods sold and de- livered there, and accepted in Montreal, the price charged being in United States currency. Held, that the draft was payable according to such currency. Copcutt, et al. v. McMasters, 1 L. C. J. 340 ; S. C. 1863. 940. Semble, that in suit on a bill of exchange expressing value received, and drawn without the State by plaintiff, the holder, on de- fendant, who is acceptor, within this State, damages at ten per cent, are allowable, notwithstanding want of protest (Wagn. Stat. 215. 216j 8). Phillips v. Evans, N. Y. 17. 94:1. Gr. drew upon W. requesting him to pay an amount named to himself or order. Held, that the instrument could be declared on ither as a bill of exchange or promissory note. Golding v. Water- house, 3 New Brunswick, 313. 942. The indorser of a bill of exchange is in all cases entitled to notice whether the drawer have or have no effects in his hands, and on this ground the court non-suited the plaintiff and refused his motion for a new trial. Griffin v. Phillips, 2 Rev. de. Leg., 30 K. B. 1821, 2298 and 23 19, et seq. C. C. 943. Where a bill of exchange was drawn by a party in Chicago upon a firm in St. Louis and verbally accepted b}' a member of the firm then present in Chicago the validity of such acceptance is to be determined by the law of Illinois. In Illinois a parol acceptance of a bill of exchange is valid and a parol promise to accept it is an accept- ance thereof. Matters bearing upon the execution, interpretation and validity of a contract are determined by the law of the place where it is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy depend upon the law of the place where suit is brought. Scudder v. Union Nat. Bank, 1 Otto. 405. 944. Bill of exchange or draft headed " New England Agency of the Pennsylvania Fire Insurance Company," having the words " Foster and Cole, General Agents for the New England States " printed in the margin, and appearing on its face to be drawn upon said insurance company in payment of a claim against it, is the draft of the company, and not of Foster and Cole, although it is signed by them in their own names. Chipman v. Foster, 119 Mass. 189. 945. Where a bill of exchange was drawn for the sole accommoda- tion of the payees, and accepted by the drawee for the same purpose, and owing to the insolvency of the payees, the acceptor was compelled to pay the bill, and brought an action against the drawers to recover 134 MONROE'S DIGEST the amount paid ; Held, that there was no implied obligation on the part of the drawers to reimburse the acceptor. Barnet v. Young, 29 Ohio, 7. 946. That the drawers and acceptor, as between themselves, in the absence of any undertaking to the contrary, were not co-securities for the payers, or liable to contribution. Ibid. 947. Holder cannot sue for original consideration when there has- been a failure to stamp foreign bill and a delay of a year. Pooley v. Brown, C. iii. 565, 11 C. B. N. S. 565, (Eng. Com. Law.) 948. A bill of exchange must be payable at all events, not de- pendent on any contingency, nor payable out of a particular fund ; and it should be for the payment of money only, and not for the perform- ance of any act or in the alternative. An instrument drawn for the payment of six hundred dollars, as follows : " The hundred dollars out of the first estimate or when the first floor joists are in, two hun- dred dollars when the building is ready for the roof, and two hundred dollars when the stoops are completed, and charge the same to my ac- count," is not a bill of exchange because payable upon a contingency,, and out of a particular fund. Where the payment depends upon a contingency, the happening of the event will not change the character of the instrument. It was not a bill of exchange when made, and would not become such by matter ex part facto. Miller v. Excelsior Stone Co., 1 BradwelPs 111. App. Re'pts. 273. 949. An acceptor of a bill of exchange drawn by the purchaser of machinery, cannot by paying the bill before maturity, change the rela- tions of the original parties to it and to each other, and thus cut off the drawer from the defence of failure of consideration, from defects in the machinery so purchased. The acceptor paying before maturity is- not a holder for value of the paper, as against the drawer. The liabil- ity of the acceptor is to pay according to the terms of the contract.. His remedy, as against the drawer, then is for money had and received by him, of which the bill is the evidence. An acceptor, even though. he may have been surety for the drawer to the payee for machinery purchased by the drawer, in paying before maturity is subject to any defence which could be made by the maker, if sued by the payee.. Stark v. Alford, 49 Texas, 260. 950. The possession of the draft by G., the plaintiff's assignee, was presumptive evidence of his ownership ; and this presumption was not rebutted by the evidence on the trial. G. was one of the firm of" R., B. & Co., upon whose claim the draft was given, and was therefore part owner of the draft when it was given. The paper is produced in court by the assignee of G., and this prima facie establishes the plain- tiff's title. Kidder, Assignee v. Norrobin, et. al., 72 N. Y. App. 159. 951. In the absence of any express or implied agreement, a party is not compelled to pay a draft drawn on him merely because he haa been in the habit of paying similar drafts. Helm v. Meyer, Weis & Co., 30 La. 943. 952. Where there is no value or consideration for acceptance it i a good defence in action by drawer or person taking under him. Van- quelin v. Bonard, C. ix. 341, C.; 15 C. B. N. S. 341, C. (Eng. Com. Law.) 953. Where a draft is drawn in favor of the payee on a certain OF STANDARD DECISIONS. 135 fund to arise from the sale of property then in the drawee's hands, and the payment of the draft, by its own terms, is postponed to the payment (out of the same fund), of a debt due the drawee, the drawee who has not accepted the draft, is only liable for whatever balance of the fund may remain, after the payment of his own debt. E. Marqueze & Co. v. Fernandez & Co., 30 La. 195. 954. A., of St. Louis, being indebted to B., of St. Joseph, re- quested B. to draw upon him, upon which draft he would raise the money and remit the proceeds to B. on account of his indebtedness. B. accordingly drew a draft to the order of C., his banker at St. Joseph, upon which C. indorsed " Pay to the order of C." his banker at St. Joseph, upon which C. indorsed, " Pay to D. or order, for collection for my account." Upon receipt of the draft at St. Louis, A. accepted it, and offered it for discount to plaintiff. By consent of A. and plain- tiff, the indorsement was stricken off, and plaintiff then discounted the draft, and A. received and remitted the amount to B. In an action on the draft against B., the drawer, held, (1) that plaintiff could not, by parol evidence, show a contract between A. and B. by which the latter was to have the draft discounted on the faith of his name as drawer ; (2) that the indorsement, being restrictive, destroyed the negotiability of the draft and operated as a mere power of attorney to the banker at St. Louis to receive the proceeds of the draft for the use of the drawer ; (3) that the erasure of the indorsement, without the knowl- edge or assent of B., destroyed the validity of the draft as to him, and plaintiff, having knowledge of the alteration, was bound to know that such was its effect when he took the draft. Mechanics' Bank v. Valley Packing Co., 4 Mo. Ct. Appeals (St. Louis,) 200. 955. When a bill drawn and indorsed in England payable abroad is dishonored by acceptor's non-payment, the holder can recover from indorser the amount of reexchange and no more. A custom that he is entitled to recover either the reexchange or the amount he paid for the bill is invalid. Suse v. Pompe, xcviii. 538 ; 8 C. B. N. S. 538. (Eng. Com. Law.) 956. A promise to accept a future bill of exchange, in considera- tion of money to be advanced thereon by the promisee, is invalid, and an action thereon cannot be maintained against the promisor. Flato v. Midhall, et al., 4 Mo. Ct. Appeals (St. Louis) 476. 957. Where an accommodation bill is accepted at the request of a third party, who agrees to share any loss, such third party is not dis- charged by time given acceptor and drawer. Way v. Hearn, ciii. 774; 11 C. B. N. S. 774. (Eng. Com. Law.) 958. Acceptor who tears the bill in two parts, with the intention of destroying it, is liable to the bona fide holder obtaining it from the drawer, who fraudulently joined the pieces in such a way as to look as if the halves had been transmitted by mail. Ingham v. Primrose, xcvii. 82 ; 7 C. B. N. S. 82. (Eng. Com. Law.) 959. One H. having entered into a contract with defendant and being indebted to plaintiff gave to latter a written order directed to defendant, requesting him to pay plaintiff $400 on account " as per contract " ; defendant verbally accepted the order and thereupon plain- tiff released certain security that lie had. In an action thereon, hd<1 T that the instrument was not a bill of exchange, but a mere appropria- 136 MONROE'S DIGEST tion of so much of the contract price to become due H. and only pay- able out of that fund, which appropriation became irrevocable when assented to by defendant, and he was liable to pay over the amount from the sums, if any, which should become due H. on the contract. Ehrichs v. DeMill, 75 N. Y. 370. 960. The " refusal " spoken of in the provision of the statute in reference to bills of exchange (1 K. S., 769, 11), which declares that one upon whom a bill is drawn and delivered for acceptance, who destroys or refuses to deliver it, shall be deemed to have accepted it, is an affirmative act, or is made up of conduct tantamount to one ; it is also a willful or wrongful act. Matteson v. Moulton, 79 N. Y. 627. 961. The mere retention, without a demand for a return, or a dis- sent to the retention, and with the permission of the owner, is not a refusal within the meaning of the statute. Matteson v. Moulton, 79 N. Y. 627. 962. Where, therefore, it appeared that the drawee promised to pay the amount by the time or upon a contingency named, and that the payee, relying upon this, permitted the bill to remain in the hands of the former, and no demand or request for its return, and a denial or evasion thereof was proved, held, that the drawee was not chargeable as acceptor of the bill. Matteson v. Moulton, 79 N. Y. 627. 963. Also, held, that the promise to pay was void under the statute of frauds (2 R. S., 135, 2), as it was an oral promise to answer for the debt of another. Matteson v. Moulton, 79 N. Y. 627. 964. A draft drawn for the price of goods sold and delivered is equivalent to a demand of payment, and, there being no proof of credit, and the bill having been received without objection, equally brings the case within the statute of, which gives interest on money due and " withheld by unreasonable and vexatious delay." Whiteside v. Hyman, 17 N. Y. Sup. Ct. 218. 965. The acceptance of a draft dated in one State and drawn by a resident of such State on the resident of another, and by the latter ac- cepted without funds and purely for the accommodation of the former, and then returned to him to be negotiated in the State where he re- sides, and the proceeds to be used in his business there he to provide for its payment is, after it has been negotiated and in the hands of a bonafide holder for value and without notice of equities, to be regarded as a contract made in the State where the draft is dated and drawn, even though by the terms of the acceptance the draft is payable in the State where the acceptors reside. Tilden v. Blair, 21 Wall. U. S. 241. 966. It is accordingly to be governed by the law of the former State ; and if by the law of that State the holder of it, who had pur- chased it in a course of business without notice of equities, is entitled to recover the sum he paid for it, though he bought it usuriously, he may recover such sum, though by the law of the State where the draft was accepted and made payable, -and where usury made a contract whollv void, he could not. Ibid. 967. If, however, the parties calculate interest and make a settle- ment upon the basis of the old rate, and the debtor gives new notes and a mortgage for the whole on that basis, the notes and mortgage are, independently of the Bankrupt Act and of any statute making such securities, void in toto as usurious, valid securities for the amount OF STANDARD DECISIONS. 137 which would be due on a calculation properly made. They are bad only for the excess above proper interests. Burnhisel v. Firman, 22 Wall. U. S. 170. 968. An indorser of a promissory note, even though it be an accommodation note, is not one ; but is a principal debtor, if the note be not paid and proper steps have been taken to fix his liability. Jfrwx v. Jones, 22 Wallace, U. S. 576. 969. Under the Act of Congress of Feb. 10, 1868, and the Act of the Legislature of Pennsylvania, of March 31, 1870, shares in national bonds may be valued for taxation for county, school, munici- pal and local purposes, at an amount above their par value. Hepburn v. The School Directors, 23 Wall. U. S. 481. BILLS OF LADING. 970. The clause in a bill of lading which acknowledges the receipt of property, or declares as to its condition, may be disproved by parol proof. The holder of a bill of lading can acquire no greater rights under it than were possessed by the original consignee. Hunt & Ma- caulay v. Mississippi Central R. R. Co., 29 La. 446. 971. Bills of lading bound the carriers to forward the goods to their destination with the usual dispatch. To show usual time of transit, the shippers called a witness who testified thereto, but said he derived his information from a clerk in the freight office at the place of destination. Held, that fact being peculiarly within the knowledge of the carriers, that slight evidence thereof on the part of the shippers was sufficient, and that the testimony was competent. Newell, et al. v. Smith, et al., 49 Rowell, Vt. 255. 972. Bills of lading imparted on its face as an absolute undertak- ing. On the book thereof were printed rules and regulations that mod- ified such undertaking, but it did not appear that the shippers had knowledge thereof. Held, that evidence modifying such undertaking should come from the party apparently bound thereby. Newell, et al. v. Smith, et al, 49 Rowell, Vt. 255. 973. In an action by plaintiffs, as assignees of common carriers of the freight on a cargo of staves shipped by defendants from T. to N. Y., plaintiffs, for the expressed purpose of proving ownership of the <3ause of action, offered in evidence the bill of lading, executed about six years before the trial, indorsed by the carrier to a bank as security for plaintiffs' acceptance-and payment of an accompanying draft ; also with an indorsement thereon, signed by the bank and directed to plain- tiffs, as follows : " Upon your acceptance of the draft the bill of lading is placed in your custody to collect and apply the first proceeds in pay- ment of the draft." This evidence was rejected. Plaintiffs also offered to prove by parol an acceptance which was rejected. Held, error ; that the presumption from the possession of the draft was that plaintiffs had complied with the condition precedent, i. e., the acceptance of the draft ; that, although plaintiffs could not be charged as acceptors with- out showing a written acceptance, yet, as defendants were not parties to the draft, or privies, and the fact of acceptance was collateral to the 138 MONROE'S DIGEST issues herein, it might be proved by parol. Sprague v. Hosmer, 82 N. Y. 466. 974. Bill of lading for goods sent to a purchaser, and not objected to by him, amounts to a liquidation of an account within the statute of giving interest on liquidating accounts between the parties, and ascertaining the balance ; there being no other transaction between the parties. Cooper & Co. v. Coates & Co., 21 Wall. U. S. 105. 975. Bills of lading for goods not actually put on board, cannot be signed by the master of a ship under his authority as agent, and therefore the owner of the ship is not responsible to parties taking, or dealing with, or making advances on the faith of such an instrument which is untruthful in this particular. The consignee and every other party thus acting does so with notice of this limitation of the power of the master, and acts at his own risk both as respects the fact of shipment and the quantity of cargo purported by a bill of lading to be shipped. Bills of lading are not negotiable in the same sense in which bills of exchange or promissory notes are. The} 7 stand in the place of the goods they represent, and delivery or indorsement of them trans- fers the right of property in the goods, but not in the contract itself,, so as to enable the indorsee to maintain at the common law an action on it in his own name. A railroad is not liable for advances made by a commission merchant upon the faith of a bill of lading fraudulently signed by one of its station agents, the goods specified never having been shipped or received at the depot for transportation. Balto. & Ohio E. R. Co. v. Wilkens, 44 Md. 11. 976. Where one of two innocent parties must suffer from the wrongful or tortuous acts of a third party, the law casts the burden or loss upon him by whose act, omission or negligence such third party was enabled to commit the wrong which occasions the loss. Where the agent of a railroad corporation, engaged as a common carrier, has authority to receive grain for shipment over its road, and issue in the name of the corporation a bill of lading for the consignment, and promise in the bill of lading to deny that it has received the grain mentioned therein, and is liable to the indorsee and assignee for ad- vances made in good faith on the bill of lading. Wichita Savings Bank v. Atchison, Topeka and Santa Fe R. R. Co., 20 Kansas, 519. 977. Bills of lading are transferable by indorsement. Robertson v. Stuart, 68 Me. 61. 978. The bill delivered to the shipper of the goods is the bill that makes the contract concerning them, and if it is different from the one retained by the ship, it and the " Ship's bill " is evidence of the contract. The Thames, 14 Wall. U. S. 98. 979. It seems that plaintiff, on discount of Q.'s draft, had the se- curity for repayment derived from three different sources ; i. e., the responsibility of Q., defendants' guaranty, and the special property,, secured to them by the bill of lading ; the failure to realize on either left the others open to them. Commercial Bank v. Pfeiffer, 108 N. Y. 242. 980. The discount of a draft drawn by a consignor upon his con- signee, accompanied by delivery of a bill of lading to the party mak- ing the advance passes to him not only the legal title, but in the eye of the law is regarded as an actual delivery and change of possession of the property. Ibid. OF STANDARD DECISIONS. 981. A consignor who had been in the habit of drawing bills of ex- change on his consignee with bills of lading attached to the drafts drawn (it being part of the agreement between the parties that such bill should always attend the drafts), drew bills on him with forged bills of lading attached to the drafts, and had the drafts with the forged bills of lading so attached discounted in the ordinary course of business by a bank ignorant of the fraud. The consignee, not knowing of the forgery of the bills of lading, paid the drafts. Held r that there was no recourse by the consignee against the bank. Hoff- man & Co. v. Bank of Milwaukee, 12 Wall. U. S. 181. 982. S. and D., correspondents and agents at Buffalo of B. of New York, to fill an order from B., purchased in their own name a boat load of wheat, which was delivered on board a canal boat. S. and D. were not furnished by B. with money or credit wherewith to make the pur- chase ; but in accordance with their understanding and course of busi- ness they raised the funds by procuring plaintiff to discount a draft drawn by them on B. on delivery, as collateral, of a bill of lading of the wheat, wherein it stated that the wheat was shipped to New York to account and order of plaintiff. Plaintiff, upon acceptance of the draft, delivered the bill of lading to B., with an indorsement thereon, to the effect that the wheat was pledged to it for the payment of the draft, and was placed in B.'s custody, " in trust for that purpose," and not to be diverted to any other purpose until the draft was paid. The wheat, on arrival, was delivered by the carrier on the order of B. to defendants, who were warehousemen, in store. B. sold the wheat to- A., to whom defendants made advances thereon to pay therefor and subsequently delivered the wheat to him on B.'s order. Before such advances and delivery defendants had seen a copy of the bill of lading and of the indorsement thereon. In an action for a conversion of the wheat, held, that such a delivery of the bill of lading did not vest in B. a title to the wheat or confer upon him authority to sell, but simply vested him with the possession to hold in trust for plaintiff; that plaintiff's title could not be divested by any act of B., until payment of his acceptance ; therefore that defendants were liable. F. &. M. Nat. Bank v. Hazeltine, 78 N. Y. 104. 983. The prima facie legal effect of a bill of lading, as regards the consignee, is to vest the ownership of the goods consigned by it in him. The Sally Magee, 3 Wall. U. S. 451. 984. The indorsee of a bill of lading may libel a vessel for non- delivery of the goods shipped, though he be but an agent or trustee of the goods for others. The Thames, also The Vaughan v. Tele- graph, 14 Wall. U. S. 258. 985. A " clean " bill of lading, that is to say a bill of lading which is silent as to the place of stowage, imparts a contract that the goods are to be stowed under deck. The Delaware, 14 Wall. U. S. 579. 986. This being so, parol evidence of an agreement that they were to be stowed on deck, is inadmissible. Ibid. 987. Bill of lading may be explained by parol evidence in so far as it is a receipt as distinguished from a contract. The Franklin, 9 Wall. U. S. 325. 140 MONROE'S DIGEST BILLS OF SALE. 988. An absolute bill of sale, executed to secure a debt, operates us a mortgage, and will be postponed to a subsequent and recorded mortgage. Rogers v. Vaughan, 31 Ark. 62. 989. A bill of sale of personal property was made at nine o'clock in the evening. The property was twenty -three miles distant. Pos- session was delivered at four o'clock in the morning of the next day, and the vendee remained in possession until the property was seized in the afternoon of that day, on attachment at the suit of a creditor of the vendor. Held, that this was an immediate delivery of possession, with continued change of possession, under the statute of Montana, making sales of personal property, " unless accompanied by immediate delivery and followed by actual and continued change of possession," M conclusive evidence of fraud against creditors." Kleinschmidt v. Me Andrews, 117 U. S. 282. BONA FIDE HOLDER. 990. Plaintiffs contracted to sell to A. a quantity of corn to be paid for in cash on delivery. At the request of A. plaintiffs caused a portion of the corn to be loaded on board a vessel, for their account, and received the weigher's return, which they indorsed and delivered to A., to enable him to procure bills of lading in his own name and to sell his exchange drawn against the same, it being agreed that the title of the corn should not pass until payment, which was to be made on that day. A. procured the bills of lading, which he transferred to defendants as security for three bills of exchange drawn against the -corn, forming part of a parcel of exchange sold to defendants by A. Defendants paid to A. a portion of the proceeds of the exchange so purchased, and forwarded the three bills with the bills of lading to their correspondents. On the same day plaintiffs notified defendants that they were the owners of the corn, and demanded the same or the bills of lading, or that defendants should agree to account to them for the proceeds ; defendants refused. At that time the}' had in their hands of the purchase-price of the exchange more than the value of the corn. In an action for the conversion of the corn, the defence was that defendants bought and paid for the corn in good faith without no- tice ; held, that no title to the corn passed from plaintiffs to A . ; that the condition precedent of payment was not waived by the symbolical delivery ; that as defendants, at the time of plaintiffs' demand, had sufficient means in their hands to protect both themselves and plaintiffs from loss, their refusal to comply was without justification ; that they were to be regarded as holding the proceeds in place of the property, And were liable to pay it over to plaintiffs as the rightful owners ; and that, by payment of a portion of the purchase-money before notice of plaintiffs' claim, defendants were entitled ,to protection as bona fide purchasers, only to the extent of such payment. Dows v. Kidder. 84 y. Y. 121. OF STANDARD DECISIONS. 141 991. There can be no bona fide holder of town bonds, within the meaning of the law, applicable to negotiable paper, as they can only be issued by virtue of special authority, conferred by some statute % and are only binding upon the town when issued in the way pointed out by the statute. Cagwin v. Town of Hancock, 84 N. Y. 532. 992. All persons, therefore, taking such bonds are chargeable with knowledge of the statute under which they were issued, must see to it that its provisions were complied with ; and, in the absence of some provision making the action of the officer or agents of the town bind- ing and conclusive, the fact that the holder of such bonds purchased for value and in good faith does not preclude the town from showing that they were illegally issued. Cagwin v. Town of Hancock, 84 N. Y. 532. 993. The liability of the town is not taken away by the fact that the legislator has directed a special mode in which the money to pay the principal and interest of a bond is to be raised ; the directions be- ing given to the town and county authorities and not to the holders of the bonds or coupons. Town of Queensbury v. Culver, 19 Wall. U. S. 83. 994. The righ,t of stoppage in transitu is defeated by the indorse- ment and delivery by the vendee of a bill of lading of the goods to a bona fide indorsee for a valuable consideration without notice of fact& on which such right would otherwise exist. Becker v. Hallgarten, 86 N. Y. 167. 995. An indorsee of a promissory note, taking it as collateral se- curity for an antecedent debt without other consideration, but in good faith and before maturity, occupies the position of a holder for value and is protected as such. Confl Nat. Bank v. Townsend, 87 N. Y. 8. 996. A satisfaction-piece of a mortgage is a conveyance within the meaning of the Recording Act, and one who advances money to be secured by bond and mortgage upon the faith of a satisfaction-piece of a prior mortgage upon the premises is a " bona fide purchaser " within the provisions of said act. (1 R. S., 752, 37, 38.) Bacon v. Van Schoonhoven, 87 N. Y. 446. 997. Purchase of judgment for less than its face does not estab- lish that the purchase was not made in good faith. See Harmon v. Hone, 87 N. Y. 10. 998. Where an assignee of a bond and mortgage purchased in good faith and for value, in reliance upon a certificate made by the mortgagor at the time of the execution of the instruments, to the ef- fect that the mortgage was a valid lien, and would be such in the hands- of an assignee to the full amount of principal and interest, and that he had no defence to the mortgage or bond in law or equity. Held, that the mortgagor was estopped from setting up, in an action to foreclose the mortgage, the defence of usury ; that it was immaterial that the mortgagor had not the plaintiff in his mind at the time of signing the certificate, as it was to be taken as if directed to whom it might con- cern ; also that the certificate was not deprived of its force, because executed at the same time with the mortgage, it was not to be consid- ered as part of that instrument. Weyh v. Boylan, 85 N. Y. 394. 999. Also held, that the fact that plaintiff was a second assignee, and that the first assignees had knowledge of the facts, and so could 142 MONROE'S DIGEST not avail themselves of the estopped, did not prevent him from so doing. Weyh v. Boylan, 85 N. Y. 394. 1000. The possession of money vests the title in the holder, as to third persons dealing with him and receiving it in clue course of business and in good faith, upon a consideration good as between the parties. Stephens v. Bd. Edn. of Brooklyn, 79 N. Y. 183. 1001. The doctrine, that an antecedent debt is not such a con- sideration as will cut off the equities of third parties, in respect to negotiable securities obtained by fraud, has no application to money so obtained. Stephens v. Bd. Edn. of Brooklyn, 79 N. Y. 183. 1002. It seems, that while the money remained on deposit in the bank, plaintiff could have compelled the bank to restore it, but having paid it out, without notice of any defect in the title of G., it was there- after protected. Stephens v. Bd. Edn. of Brooklyn, 79 N. Y. 183. 1003. The doctrine that the bonafide holder for value of negotiable paper, transferred as security for an antecedent debt merely, and with- out other circumstances, is unaffected by equities on defences between prior parties of which he had no notice, does not apply to instruments conveying real or personal property as security, in consideration only of preexisting indebtedness. People's Savings Bank v. Bates. 120 U. S. 556. BONDS. 1004. If a negotiable city bond be stolen, and its number be altered by the thief, it will be good in the hands of a subsequent bona fide holder who takes it for value. Elizabeth City v. Force, et al., 29 N. J. 587. 1005. In debt on a writing obligatory, as follows : " Know all men by these presents that we, William J. Clark, of the city of Provi- dence, R. I., as principal, and A. E. Burnside, Eben A. Kelly, and John Gorham, as sureties, are held and firmly bound unto the Presi- dent, Directors and Company of the Commercial National Bank of the city of Providence, R. I., in the sum of ten thousand dollars ; that is to say, the said William J. Clark in the whole of said sum above named, and the said A. E. Burnside, Eben A. Kelly, and John Gor- ham, each as surety respectively in the sum of thirty -three hundred and thirty-three and 33-100 dollars, to be paid to them, the said Com- mercial National Bank, their attorney, successors, or assigns, for which payment well and truly to be made, we do hereby bind our- selves, our heirs, executors, and administrators firmly by these pres- ents." Held, that the obligation was several ; Clark being bound in one whole sum of $10,000, and Burnside, Kelly, and Gorham, being each bound in one sum of $3,333 1-3. Commercial National Bank v. Gorham, 11 R. I. 162. 1006. Held, that if the secretary was entrusted with the funds of the company, notwithstanding it was also the prescribed dutj" of the president to receive the money paid to the company and to deposit the same, and he was responsible for any failure of duty on his part, that did not relieve the secretary from responsibility for the faithful dis- OF STANDARD DECISIONS. 143 position of any funds confided to his care. That the unauthorized act of the president in entrusting funds to the secretary could not dis- charge the secretary from the faithful preservation thereof. That the stipulation of the bond was an undertaking for the fidelity and honesty of the secretary commensurate with the scope of his duties, and the enumeration in the 4th article of the by-laws of certain things to be performed by him, did not supersede this obligation which pervaded every department of his official functions. That the company had the right under this stipulation to insist upon indemnity for any deviation from the line of his duty to its prejudice. That in the absence of any provision to the contrary, such is the necessar}' import of the terms of the contract, and the sureties in executing the bond must be held as stipulating to this effect. Whilst it is an undoubted proposition, that the liability of the surety is not to be extended by implication beyond the terms of his written contract, by which his responsibility is to be measured, the bond constituting such contract must have such con- struction given to it as to carry out the intention of the parties thereto, and in this respect there is no difference between such contract and any other. Engler v. People's Fire Ins. Co., 46 Md. 322. 1007. A municipal corporation cannot, without legislative authority, issue bonds in aid of an extraneous object. Every person dealing in them must, at his peril, take notice of the existence and terms of the law which, it is claimed, conferred the power to issue them, no matter under what circumstances he may obtain them. Town of South Ottawa v. Perkins, 94 U. S. 260. 1008. In a suit by a bona fide holder against a municipal corpora- tion to recover the amount of coupons annexed to bonds issued by it, under authority conferred by law, questions of form merely, or irregu- larity, or fraud, or misconduct on the part of its agents, cannot be con- sidered. Town of East Lincoln v. Davenport, 94 U. S. 801. 1009. When there is a total want of authority to issue municipal bonds, there can be no bona fide holding of them. Township of East Oakland v. Skinner, 94 U. S. 255. 1010. Every dealer in municipal bonds, which upon their face, re- fer to the statute under which they were issued, is bound to take notice of all its requirements. Where upon their face, the coupons re- fer to the bonds to which they were "attached, and purport to be the semiannual interest accruing thereon, the purchaser of them is charged with notice of all which the bonds contain. Cromwell v. County of Sac, 96 U. S. 51. 1011. Defendant borrowed, July 5th, 1815, of the New Amsterdam Savings Bank, the sum of $5,000, for which he executed his bond and mortgage. On the 20th day of September, 1876, the bank became in- solvent and passed into the hands of the plaintiff as receiver. At that time there was due and owing defendant, *as a depositor of the bank, the sum of $1,748.01. Held, that defendant was entitled to a set-off for the amount of his deposit. Receiver of New Amsterdam Sav- ings Hank v. Tartter, 54 Howard, N. Y. 385. 1012. Under the provisions of the act of the Legislature authoriz- ing an exchange of State bonds with certain railroad companies, the State was to occupy two relations to those who bought its bonds from the company. The first was that of a debtor to the holder, and the sec- 144 MONROE'S DIGEST ond was that of a trustee holding the bond of the company and the lien created by the act to secure payment of the party who advanced money to the company. The Legislature had no authority to create the first relation. It did have power to enact the second. Holland v. T. State of Florida, et al., 15 Fla. 455. 1O13. Bond under seal, though voluntary, creates a debt, and is- impeachable only for fraud. Such a bond is enforceable against the grantor and all claiming under the grantor as volunteers. Garden, Exr'x v. Derrickson, et al., 2 Del. 386. 1014:. On an indictment for receiving " three bonds of the United States, each of the value of ten thousand dollars, of the property " of one S., it appeared that the bonds were, after they were stolen, and be- fore they were received by the defendant, fraudulently altered by eras- ing the name of S. and inserting the name of C. ; the verdict was " guilty of receiving two bonds." Held, that the fraudulent alteration did not take away from them the character of bonds of the United States or deprive S. of his ownership in them. Commonwealth v. White, 123 Mass. 430. 1015. Where a party has given a bond to another to secure the faithful performance of the contract of a third person, it is the duty of the obligee to give reasonable notice to the guarantor of any defal- cation on the part of the contractor. It is the prerogative of the court to define the character of the notice, and the duty of the jury to determine whether such reasonable notice has been given. Roberts, et. al. v. Woven Wire Mattress Co., 46 Md. 374. 1016. Where a guaranty is subsequent to the contract between the principal and the guarantee, and forms no part of the consideration thereof, it requires a distinct consideration to give it efficacy as a col- lateral undertaking. But where a guaranty expressly referred to a previous agreement between the principal and the guarantee, which was executory in its character, and embraced prospective dealings be- tween the parties ; then the guaranty purports upon its face, and by necessary construction, a sufficient consideration. Roberts, et. al. v. Woven Wire Mattress Co., 46 Md. 374. 1017. Where a contract of guaranty was signed by the guarantor, and delivered to the agent of the guarantee, and was in the possession of the guarantee at the time of a suit upon the contract, and was pro- duced by him ; there is sufficient prima facie evidence of the delivery and acceptance of the contract of guaranty, and other notice of its ac- ceptance is unnecessary, unless there had been a stipulation to that effect. Ibid. 1018. Where a guarantor warranted the faithful performance by his principal of certain duties stipulated in a contract, among which was the duty of making returns of sales ; the failure by the guarantee to notify the guarantor of his principal's default, and permitting the principal to make returns in a manner different from the stipulated mode, cannot afford sufficient evidence of the abandonment of the con- tract and the substitution of another. Ibid. 1019. Generally the term " bond " implies an instrument under seal. The official bond required of a collector of taxes must be a sealed instrument. The words " witness our hands and seals," when no seal is attached, will not make the instrument, though otherwise in OF STANDARD DECISIONS. 145 proper form, a bond. An instrument, in form a bond, but containing no seal, voluntarily executed and delivered in lieu of a bond and ac- cepted therefor is valid. Its acceptance is a sufficient consideration to cover all official delinquencies in not paying over money actually col- lected after such acceptance. Boothbay v. Giles, 68 Me. 160. 1020. A married woman cannot bind herself as surety on an official bond. Hynes v. Dickinson, 32 Ark. 776. 1021. A money bond, issued by a body politic, under authority of law, payable to bearer, has the negotiable quality of ordinary commer- cial paper, and if, while it is a valid instrument, it reaches the hands of an innocent holder for value before maturity, although he derives his title from a thief, he will be entitled to recover the money due on it. The alteration of the number of a bond, where different bonds of the same series are distinguished alone by the numbers, will render the instrument void in the hands of the person who made the altera- tion, and also in the hands of those who claim under him. While the alteration of a stolen bond by a thief will avoid it as to him and those who claim under him, it will not impair the rights of the true owner, Force v. Elizabeth, 28 N. J. Eq. 403. 1022. A power to issue county bonds carries with it a power to- make them payable out of the State where the county is, and to sell them also out of the State. Synde v. The County, 16 Wall. U. S. 6. 1023. A paper which in the body of it says " as witness my hand and seal " has the word " seal " affixed to the signature of the maker. It is a sealed instrument within the meaning of the statute. Code of 1849, ch. 143, 2, p. 580. Lewis ex'ors v. Overly's adrn'r, 28 Grattan- (Va.) 627. 1024. A person taking a bond for the future good conduct of an agent already in his employment, must communicate to a surety his knowledge of the past criminal misconduct of such agent in the course of such past employment, in order to make such bond binding. The mere non-communication of such knowledge, irrespective of motive or design, is a fraud in law, which will invalidate the obligation. Sooy Ads. State of N. J., 39 N. J. 135. 1025. A bond of indemnity given to an accommodation indorser conditioned upon the payment of certain notes or a single renewal of them, does not cover subsequent renewals. In such case, where the notes were renewed twice to it, by an agreement between them to that effect, is postponed to the lien of a mortgage upon real estate bound by the judgment, given by the defendants in the judgment before the second renewal of one of the notes and on the day of the second re- newal of the other. Appeal of First Nat. Bank, 82 Penn. St. 488. 1026. There can be no innocent holder of paper issued by a muni- cipal corporation without power. Lindsey v. Rottaken, 32 Ark. 619. 1027. Municipal bonds issued without authority, although negoti- able in form, are void in the hands of an innocent holder. Hancock v. Chicot Co., 32 Ark. 575. 1028. Bonds with coupons, payable to bearer, are negotiable securities and pass by delivery ; and in fact have all the qualities and incidents of commercial paper. Thomson v. Lee, 3 Wall. U. S. 327. 1029. A bond executed by an attorney in fact who through what is shown to have been an accident causes the bond to be prepared and 10 146 MCmilOES DIGEST signs it with the obligor's right family name, but with a wrong bap. tismal name is valid. Dalton \. Cass, 14 Wall. U. S. 472. 1030. The designation of a bank as the place of payment of a bond, imports a stipulation that its holder will have it at the bank when due to receive payment, and that the obligor will produce the funds to pay it. Ward v. Smith, 1 Wall. 447. 1031. If the obligor is at the bank, at the maturity of the bond, with the necessary funds to pay it, he so satisfies the contract that he cannot be made responsible for any future damages, either as costs of suit or interest, for delay. Ibid. 1032. The sureties upon an official bond are not liable for a defal- cation of their principal, occurring during a term preceding that for which the bond was given ; nor are they made liable because their principal had during the term for which the bond was given, property out of which he might have provided funds to make good the defalca- tion. Bissell v. Saxton, 77 N. Y. 191. 1033. Where an officer elected for a second term has in his hands at the beginning of, and after he gives a bond for that term, public moneys which came into his hands during his first term, his failure thereafter to pay and account therefor is a breach of the condition of the bond and the sureties are liable. Ed. Ed. v. Fonda, 77 N. Y. 350. 1034. The representations, made at the time of execution, to a surety by the principal and a co-obligee on a bond, as to its scope and purpose, cannot limit or qualify the express language of the bond. Appeal of Lane, et al., 112 Penn. 499. 1035. Defendant claimed that there was a fraudulent suppression and concealment by the persons who solicited him to sign as to the true condition of the bank. It appeared that defendant was informed, when he executed the bond, that it was to be used to give credit to the bank with the banking department, and with the public, so that it would be enabled to continue its business. Held, that this was a suffi- cient notice that the bank was in a precarious condition, and that un- deV the circumstances, the fact that its exact condition was not dis- closed was no defence ; also, that as defendant had allowed the bond to be treated as an asset for three years, and the public to deal with it on that assumption until it became insolvent, he was estopped from set- ting up such defence. Hurd v. Kelly, 78 N. Y. 588. 1036. An offer to prove that the bond was delivered upon the consideration that certain other persons should execute it, who did not, was overruled. Held, no error ; as this defence was not alleged in the answer ; also, that as it appeared that whatever was said upon this subject, was prior to the time the bond was executed, and as the bond itself was complete and perfect, the whole sum proposed to be guaranteed by its being covered by the several sums assumed by the obligors who executed it, it was to be inferred that if it was originally contemplated that others should execute it, that purpose was aban- doned. Hurd v. Kelly, 78 N. Y. 588. 1037. A bond regular on its face cannot be avoided even by sure- ties (the obligee not having had knowledge thereof) by the fact that they signed it on a condition that other persons were to execute it wlm did not execute it. Dair v. United States, 16 Wall. U. S. 1. 1038. A municipal bond in the ordinary form is a promissory OP STANDARD DECISIONS. 147 note negotiable by the law merchant within the meaning of the term in the act of March 3d, 1875. New Providence v. Halsey, 117 U. S. 336. 1O39. It is within the discretion of a Circuit Court to take an appeal bond in which each surety is severally bound for only a speci- fied part of the obligation. N. G. In. Go. v. Albro, 112 U. S. 506. BROKERS. 104O. When a real estate broker undertakes to furnish a pur- chaser, he is bound to act in good faith in presenting a person as such, and when one is presented the employer is not bound to accept him, or pay the commission, unless he is ready and able to perform the con- tract on his part according to the terms proposed. If the principal accepts the person presented, either upon the terms previously pro- posed or upon modified terms then agreed upon, and a valid contract is entered into between the principal and the person presented by the broker, the commission is earned. Colemari's Ex'r v. Meade & Co., 13 Bush, Ky. 358. BURDEN OF PROOF. 1041. It seems, that when the title of a purchaser of property is assailed as void under the statute (2 R. S. 137, 1-5), because made to hinder, delay and defraud creditors of the vendor, it is sufficient to show in the first instance the fraudulent intent of the vendor ; if then the purchaser shows that he purchased for a valuable consideration, the party assailing his title must show that he had previous knowl- edge of the fraudulent intent of the vendor, or that he participated in the fraud. Starin v. Kelly, 88 N. Y. 418. 148 MONROE'S DIGEST CERTIFICATES. 1042. Certificate of deposit given by a bank payable to order after fifteen days, and bearing interest in case the deposit should re- main three months and upwards, is a promissory note. Richer \. Voyer, et. al, 5 R. L. 213, S. C. R. 1043. A certificate of deposit is evidence of so high and satis- factory a character as to the sum deposited, that, to escape its effects*, the maker must overcome it by clear and satisfactory evidence. Where the testimony, aside from the certificate, is balanced as to the amount deposited, the certificate will turn the scale. First Nat. Bank of La- con v. Myers, 83 111. 507. 1044. When a certificate of deposit by its terms matures six months after date, and is to bear six per cent, interest from date, it will continue to bear the same rate of interest until paid. And where a bank bi'ings up a plain case like this, the judgment will be affirmed with ten per cent, damages. Cordell v. First Nat. Bank of Kansas City r 64 Mo. 600. 1045. In a suit against a religious corporation where the certifi- cate of incorporation was defective and insufficient to show that the defendant was a corporation. Held, first, That the fact that it held itself out as a corporation and treated with the plaintiff' as such, did not estop it from denying its liability as a corporation. Second, That the statute law of the State having expressly required certain pre- scribed acts to be done to constitute a corporation, the omission of those requisites cannot be supplied by the application of the doctrine of estoppel. Boyce v. Trustees of the M. E. Church, 46 Md. 359. 1046. Certificates of deposit, payable at their return to the bank,, properly indorsed, are, in legal effect, promissory notes payable on demand, and the statute of limitations begins to run against them from their date, and that no one can be held a bona fide purchaser of them who does not take them within a short time after their issue, Samuel A. Tripp, et. al. v. Gurtenius, et. al., 25 Mich. Sup. Ct. Reps^ 605 ; Gate v. Patterson, 25 Mich. 191. 1047. A certificate of deposit, payable on demand without in- terest, and a certified check are in a legal sense the same thing, are governed by the same rules, and that no more lapse of time will render such check or certificate past due or dishonored. They are both a promise to pay money on demand, without interest, which indicates an> intention to leave it on deposit but for a short time. Mead v. Mer- chants' Bank, 52 N. Y. 147 ; Merchants' Bank v. State Bank, 10 WalL 648; Willets v. Phcenix Bank, 2 Duer. 121 ; Farmers' and M. Bank v. B. and D. Bank, 4 Kern. 624; Smith v. Miller, 43 W. T. 176 - r Girard Bank v. Bank of Penn., 39 Penn. St. 92. 1048. It has been held that the statute of limitations begins to- run against a banker's certificate of deposit, payable on demand, from the date of the same, and that no special demand is necessary to put the statute in motion. Brummagin v. Tallant, 29 Cal. 503. 1049. Plaintiff made a deposit with the F. & M. Bank, receiving therefor a certificate payable to his order, on return thereof, with in- terest. While the certificate was outstanding that bank discounted OF STANDARD DECISIONS. 149 plaintiff's note in renewal of a former note held by it ; and in the or- of a preexisting debt, is not bound to present it, before bringing suit on his original cause of action. Devoe v. Moff'att, Anth. N. P. 221. 1115. A check, it is true, is a payment until presented and refused ; but a bill is payment only if it be so agreed, and if payment by bill be part of the agreement, it must be evidenced in writing. Chitty, 681. Mahalen v. The Dublin & Chapelized Distillery Co., 2 Irish Reports, dommon Law Series, 83. 1116. A verbal agreement between the payee and the drawer of a check, contemporaneous with its execution and delivery, that the former will not present it to the drawee for payment until a certain time, is sufficient excuse for a delay until the time specified in present- ing it for payment. Demand for the payment of a check, and notice of non-payment of the same, are no part of the contract between the drawer and payee, but are steps in the legal remedy of the latter. Pollard, Adm. v. Bowen, 57 Ind. 232. 1117. No protest for non-payment of a check drawn upon a bank is necessary to render the drawee liable to payee. Pollard v. Bowen, 57 Ind. 232. 1118. The date of a check is prima facie evidence of the time it was made and had its inception ; and if found in the hands of the payee or third person for a considerable time (in this case fourteen months) after its date, will be deemed to be discredited. A party taking it is put upon inquiry, and, in the absence of explanation, takes subject to any defence existing as between the payee and drawer. 1119. Check, however, has no inception until delivery, and for all legal purposes is to be considered as made on the day it is delivered ; when the date and the time of the delivery are not the same, the latter may be shown in answer to any such defence. A party negotiating for it, who ascertains that the check was in fact delivered on the day it is offered to him, is not bound to go further and inquire as to any other objection to it ; and if he takes it bona fide, for value, without notice of illegality or other defence, and it appeal's that it was in fact deliv- ered on the day it was negotiated, he stands in no worse position than if he had first inquired and been informed of this fact. When, there- fore, a check is delivered by the drawer to the payee long after its date, and is upon the same day transferred by the latter to a bona fide pur- chaser for value without notice of any defence, it is valid in his hand, notwithstanding a defect or illegality in the consideration which would be a good defence as between the drawer and payee. Ibid. 1120. Accordingly, held, where, in pursuance of an arrangement between an assignee in bankruptcy and creditors, a check for addi- tional compensation over and above his fees, dated on the day it was made, was deposited with a third person, to be delivered to the payee when he was discharged from his position as assignee, which check remained in the hands of the depository for fourteen months, and was then delivered upon the order of the payee, on the day the latter was 160 MONROE'S DIGEST discharged as assignee, to a bona fide purchaser from him for value, that the check had inception only on delivery, and that, in the absence of evidence of notice to the purchaser, of any defence, he, or his trans- feree, could, upon its being presented for payment and dishonored, enforce it against the drawer. Cowing v. Altman, 71 N. Y. 435. 1121. An order, check or draft, to have the effect of an equitable assignment, must be drawn on a particular, specified fund. In re Merrill, 71 N. Y. 325. 1122. Accordingly, held, where an insurance company gave it check upon a trust company, in payment of a loss, the company having at the time on deposit a sum exceeding the amount of the check, but,, prior to its presentation, a receiver of the company was appointed, who withdrew all the funds deposited, that the check, not having been drawn on a particular fund, did not operate as an equitable assignment pro tanto of the deposit ; and that, the claim having been only liqui- dated, not paid, when the company failed and went into the hands of the receiver, whereby the rights of all the creditors became fixed by the statute, the payee of the check was not entitled to have the same paid by the receiver out of the funds, in preference to the claims of other creditors. Also, held, that the fact that there was a receipt on the back of the check intended for the signature of the payee did not effect its negotiability of the particular fund. In re Merrill, 71 N. Y. 325. 1123. Where money is paid on a " raised " check by mistake, neither party being in fault, the general rule is that it may be recovered back as paid without consideration. Espy v. Bank of Cincinnati, 18 Wal- lace, U. S. 604. 1124. A person intrusted with a check by the payee to pay into- bank absconded with it, and after altering the date from the 2d of March to the 26th of March, passed it to the plaintiff for value. The check was not paid and the plaintiff, who had not been guilty of any negligence in taking the check, sued the drawer. Held, that the alter- ation was material and invalidated the check ; and that the circumstance that the plaintiff had not been guilty of negligence in taking it was immaterial. Vance v. Lowther, 1 L. R., Exch. Div. 176; 45 L. J. r Exch. Div. 200 ; 34 L. T. N. S. 286 ; 24 W. R. 372. 1125. Unless there is something in the term in which information is asked that points the attention of the bank officer beyond these two- matters, his verbal response that the check is " good " or " all right ' r will be limited to them, and will not extend to the genuineness of the filling-in of the check as to payee or amount. Ibid. 1126. Where a party to whom such a check is offered sends it to the bank on which it is drawn, for information, the law presumes that the bank has knowledge of the drawer's signature and of .the state of his account, and it is responsible for what he replied on these points- Ibid. 1127. The drawer of a check made pa} T able to the order of the payee, is not bound by a payment thereof by the bank, upon a forged indorsement of the name of the payee ; it is bound, before payment, to ascertain the genuineness of the indorsement. Welsh v. Ger. Am~ Bank, 73 N. Y. App. 424. 1128. A depositor owes no duty to a bank requiring him to ex- OP STANDARD DECISIONS. 161 araine his pass book, or returned checks, with a view to the detection of forgeries in the indorsements. He has a right to assume that the bank, before paying his checks, will ascertain the genuineness of the indorsement. Ibid. 1129. A dishonored check need not be protested to bind the maker, Henshaw v. Root, 60 Ind. 220. 1130. A check on a banker is a negotiable instrument and the in- dorser is liable to the holder. Keene v. Beard, XC. VIII. 372; 8 C. B. N. S. 372. (Eng. Com. Law.) 1131. Where, in an action against a partnership, on a dishonored check, executed in the firm name, the execution of the check is not denied by plea under oath, and the check is introduced in evidence without objection, the existence of the partnership is thereby admitted. Where, in an action against a partnership, the existence of the partner- ship may be inferred from the evidence, a finding of that fact will not be disturbed for want of direct evidence thereof. Henshaw v. JRoot f 60 Ind. 220. 1132. In an action against the maker on a dishonored check, the complaint, setting out a copy thereof, alleged its execution and delivery, its presentation on the day it was issued for payment, its dishonor and notice thereof to the defendant ; and that the defendant at the time of its issue had no funds deposited for its payment. Held, on demurrer, that the complaint is sufficient. Mere delay in giving notice to maker of the dishonor of his check does not discharge him from liability thereon, but he is entitled to whatever damage he may suffer by reason of such delay. Henshaw v. Root, 60 Ind. 220. 1133. A check may be offered in evidence under the money counts j and if there is no other evidence in the case, it is of itself sufficient to- entitle the plaintiffs to recover on those counts ; yet it is only prima facie evidence of money lent, paid a'nd advanced, or had and received ; and where it is proved that no money had come to the hands of defend- ant, the presumption raised by the check, is rebutted, and no recovery can be had on these counts. Blair & Hoge v. Wilson, 28 Grattan (Va.) 165. 1134. The rights of a checkholder and of the bank are fixed when the check is presented for payment, and the bank has no right to pay or satisfy out of the fund thus appropriated other checks or demands subsequently presented, or demands which subsequently accrued to the bank or others; nor can the bank retain the money against the check holder, under claim of an equitable lien for a debt by the drawer of the check not yet matured. Zelle, et. al. v. German Savings Inst., 4 Mo. Appeal Reports (St. Louis) 401. 1135. Where a check, given in pa3 r ment of a debt, is dishonored, action need not be brought for such debt, but may be maintained on the check. Henshaw v. Root, 60 Ind. 220. 1136. The holder of a check, by the mere fact of its being drawn in his favor, acquires no right of action in equity, as upon an equitable assignment, against the person upon whom it is drawn. To an action by plaintiffs against defendants for their refusal to pay a check, drawn by plaintiffs and one W. on them, defendants pleaded, on equitable grounds, that before the drawing or presentment of the check in ques- tion the plaintiffs and W. had drawn and delivered to various persons 11 162 MONROE'S DIGEST certain other checks, amounting in all to the whole of their funds in defendants' hands, which were presented before this check ; that neither at the time of the drawing, nor presentment of the first-drawn checks or the check in question, had defendants more than sufficient funds in their hands to pay the first-drawn checks, as the plaintiffs and W. well knew ; and that afterwards, and before the commencement of this notion, defendants paid the holders of the first-drawn check the amounts thereof, and thereby paid and disbursed all the plaintiffs' and W.'s moneys in their hands, and afterwards settled with the plaintiffs and W. their banking account in full. Held, plea bad, for the previous presentment and dishonor of the first-drawn checks not creating afty lien on the funds, and it being admitted that at the time of the pre- sentment of the checks in question there were sufficient funds to meet it, such funds were applicable to its payment ; and moreover, it was quite consistent with the plea that at the time of the presentment of the first-drawn checks defendants had no funds to meet them, and that after their dishonor they were placed in funds when the check in ques- tion was presented and dishonored, and that the first-drawn checks were then presented a second time and honored. Caldwell v. Mer- chants' Bank, 26 Upper Canada, Com. Pleas, 294. 1137. While the giving of a check by a debtor to a creditor is generally presumed to be only a provisional or conditional payment of the debt for which it was given, yet such check may, by agreement of parties, be given and received in full payment and absolute discharge and satisfaction of the debt ; and whether it was so given or received is a question of fact for the jury. Blair & Hoge v. Wilson, 2 G rattan (Va.) 321. 1138. Where a person has voluntarily, i. e., without the coercion of force or threats, given his promissory note to compound a crime, and has been compelled to pay the same, it having been transferred to .& bona fide holder for value before maturity, he cannot maintain an ac- tion against the one to whom the note was so given to recover back the moneys paid. Haynes v. Rudd, 83 N. Y. 251. 1139. A check is a bill of exchange within the statute (1 R. S. 768, 6), declaring that no person shall be charged as acceptor of a bill of exchange unless his acceptance is in writing. JRisley v. Phenix Bank, 83 N. Y. 318. 1140. A verbal promise by a bank, therefore, to pay a check, does not create a cause of action thereon. Risley v. Phenix Bank, 83 N. Y. 318. 1141. Where a debtor pays his debt by a check to the order of his creditor of one nominated by the latter, and the check is lost by or fraudulently obtained from the creditor, and is paid to the finder or fraudulent holder on a forged indorsement of the payee, the debtor is not discharged and may be again called upon to pay his debt ; at least unless the check was taken in absolute payment and extinguishment thereof. Thomson v. Bank of British N. Am., 82 N. Y. 1. 1142. A check payable to order may be transferred by the payee "by parol, with manual delivery without indorsement, but the transferee in such case acquires only the rights he would have had, had the check been original^ non-negotiable, i. e., the right which the payee had in it at the time of the transfer. Freund v. Im. and Traders' 1 Nat. Bank, 76 N Y. 352, OF STANDARD DECISIONS. 163 1143. Neither the fact that a check was dishonored when trans- ferred, nor that presentment for payment has been delayed, discharges the drawer. If dishonored, any defence thereto against the payee will be available against his transferee ; but no presumption arises that overdue or dishonored paper is invalid. If loss results to the drawer by delay in presentment, that is matter of defence. Cowing v. Alt- man, 79 N. Y. 167. 1144. The bank certifying a check is primarily liable for its pay- ment. A bank or agent for collection of a certified check should not .send such check to certifying bank itself for payment. This would be putting the instrument in the hands of the party primarily liable and enabling him to destroy the evidence of debt and repudiate the trans- action. This would not be using reasonable care. Drover's Nat. Bank of Union Stock Yards, III. v. Anglo-American Packing and Provision Co., 7 N. E. Rep. 601 ; Citing Merch. Nat. Bank v. Goodman, 2 Atl. Rep. 687 ; Bickford \. First Nat. Bank, 42 111. 242 ; zeeIndig v. Vity Bank, 80 N. Y. 106. 1145. By certifying a check a bank undertakes only that the sig- nature is genuine ; that the plaintiff has sufficient funds in the bank to meet it ; and that such funds shall not be withdrawn. Security Bank v. Nat. Bank of the Republic, 67 N. Y. 458. 1146. A bank is liable on a check certified by it whether the drawer had funds sufficient or not. French v. Irwin, 4 Baxt. 401. 1147. Payee of check cannot maintain action against drawer with- out acceptance. Bank v. Whitman, 4 Otto. U. S. 343 ; Bank v. Millard, 10 Wallace, U. S. 152 ; 3 Cent. Law Journal, 46 (Jan. 21, 1876.) 1148. Quite a difference between checks and bills of exchange. Lester v. Gibbon, 8 Bush. 360. 1149. Checks are not entitled to days of grace. Am. Law Reg. Jan. 1873; Champion v. Gordon, (Supct. Pa.); Buckner v. Say re, 18 B. Mon. 745. 1150. Death of drawer rescinds authority of bank to pay check. .3 Man. and Gr. 471 ; Chitty on Bills, 479. 1151. The transferee, however, in such case, acquires only the rights he would have had, had the check, been originally non-negotia- ble, i. e., the right which the payee had in it at the time of the transfer. Freund v. Im. & Tr. Nat. Bank, 76 N. Y. 352. 1152. A check, payable to order, may be transferred by the payee by parol, with manual delivery, without indorsement. Freund v. Im. & Tr. Nat. Bank, 76 N. Y. 352. 1153. Plaintiffs drew their check upon defendant's bank, payable to the order of M. 0. & Sons, and delivered it to the payees, for their accommodation, and without restriction as to the use of it; the payees delivered it un indorsed to N. B. & Sons, in payment of a prior indebt- edness, and it was so applied. N. B. & Sons procured the check to be certified by defendant ; afterwards plaintiff notified defendant not to pay it ; defendant, however, paid it to N. B. & Sons. In an action by plaintiffs to recover the amount so paid, as a balance of their deposits: Held, that at the time of the certification N. B. & Sons were the owners of the check, with the right to enforce it against the drawers, the existing debt being a sufficient consideration for the transfer ; that 164 MONROE'S DIGEST the certification, therefore, had the same legal effect as if the check had been properly indorsed ; that by the certification defendant became bound to pay ; and that therefor the action was not maintainable. Freund v. Im. & Tr. Nat. Bank, 76 N. Y. 352. 1154. When action maintainable against bank by drawer of check to recover amount paid thereon, when it has been lost or fraudulently obtained from payee and his indorsement forged. Thomson v. Bank British No. Am., 82 N. Y. 1. 1155 In action on check against drawer, presumption in favor of its validity, and burden is upon defendant to show want of considera- tion. Raubitschek v. Blank, 80 N. Y. 478. 1156. Where the holder of a promissory note, ostensibly acting for himself, sells the same for a valuable consideration, and upon the sale r . promises orally that the note is good and will be paid at maturity, the promise is not within the statute of frauds, and the promissor is liable thereon in case of non-payment. Milks v. Rich, 80 N. Y. 269. 1157. Defendant and H. negotiated for the exchange of certain real estate ; the terms were agreed upon verbally by them ; defendant was to pay a sum agreed upon as the difference in the values of the lands to be exchanged ; he gave to H. a check for $500, as a payment, receiv- ing therefor a receipt signed by H. In an action upon the check r parol evidence was given as to the contents of the receipt, it having" been lost, which was to the effect that it stated that the check was re- ceived on account of the exchange of said lands, specifying them, and then stated the terms, i. e., the price of each piece of property, the amount of mortgages to be executed, etc. ; it did not appear that the terms of credit were specified. Defendant thereafter refused to enter into a written contract, as was agreed, and stopped payment of the check. Held, that the burden was upon defendant to show a failure or consideration ; that as it did not appear that the terms of credit were not in the receipt, as every presumption was in favor of the validity of the check, this was to be presumed ; that the receipt taken in con- nection with the check contained the material elements of a contract,, sufficient and valid under the statute of frauds, and enforceable in equity against H. ; and that, therefore, there was a good consideration for the check. Raubitschek v. Blank, 80 N. Y. 478. 1158. Plaintiff held the check as assignee of H., who died prior to the trial. Held, that defendant was incompetent, under section 399 of the Code of Procedure, to testify to the personal transactions between him and H. Raubitschek v. Blank, 80 N. Y. 478. 1159. B. P. & Co., being indebted to plaintiff, gave to it their check in settlement of the balance due ; the check, on presentation, was dis- honored for want of funds ; it was presented to the bank on several, subsequent occasions but was not paid, and said firm at no time had funds in the bank to pay it. Defendant executed a note for the ac- commodation of one W., who indorsed it before maturity to said firm,, by whom it was delivered to plaintiff in part pa^yment of their debt ; plaintiff, at the time, surrendered the check. Held, that such surrender did not constitute plaintiff a bona fide holder for value so as to shut out the defence that the note was wrongfully diverted, by the payees, from the purpose for which it was made. Phoenix Ins. Co. v. Church,. 81 N. Y. 218. OF STANDARD DECISIONS. 165 1160. The authorities holding that the surrender by a creditor of the debtor's own note, on receiving the negotiable note of a third per- son is a parting with value, collated and distinguished. Phoenix Ins. Co. v. Church, 81 N. Y. 218. 1161. A check is not an equitable assignment of the drawer's balance at his bankers. Hopkins v. Forster, 19 English L. R. Eq. 74; 23 W. II. 301 R. 1162. To a declaration on a check, the defendant pleaded that he -was induced to sign a check by the fraud of the plaintiff'. Held, that the plea imported an allegation that the defendant, on discovering the fraud, disaffirmed the contract, and that the defendant was not entitled to a verdict on a traverse of the plea, it appearing that he had not dis- affirmed the contract. Dawes v. Harness, 44 L. J. C. P. 194 ; 33 L. T. N. S. 159 English Reps. 1163. A creditor to whom a check or other negotiable security is given on account of a preexisting debt, holds it by an iudefencible title, whether it is payable at a future time or on demand. Currie v. Misa, 44 L. J. Exch. 94; 10 L. R. Exch. 153; 23 W. R. 450 Exch. Chamber. 1164. The payee of a check drawn on the Union Bank of London, Eng., payable to him or his order, indorsed his name on it, and crossed it with two lines and the name of his bankers, the London and county bank. The check was stolen, and ultimately came into the hands of a bona fida holder for value, who paid it to his banker, the London and Westminster Bank. They presented it to the Union Bank of London, who, notwithstanding the crossing, paid the amount. In an action by the payee to recover the amount from the Union Bank of London : Held, that although by 21 and 22 Viet. C. 79, 2, the Union Bank of London was bound to pay only through the London and county bank, yet the payee had ceased to be holder of the check, he could not recover either for the breach by the Union Bank of London of the duty created by the statute, or on' an allegation that they had converted the check. Smith v. Union Sank of London, 44 L. J. Q. B. 117 ; 10 L. R. Q. B. 291 ; 32 L. T. N. S. 456 ; 23 W. R. 652 ; affirmed on appeal, 33 L. T. N. S. 657 C. A. 1165. Bank is not liable to pay check drawn thereon by a de- positor, except by its acceptance thereof in writing. Lynch v. First Nat. Bank, 107 N. Y. 179. COLLATERAL. 1166. A creditor who holds railroad bonds as collateral security for a debt is not bound by an unexecuted promise to the debtor, made without consideration, to give them up. Nor does he lose his right to hold such bonds by suing the principal debtor and recovering execu- tion, and arresting the body of the debtor thereon. Smith v. Strout, 3 Me. 205. 166 MONROE'S DIGEST COLLECTIONS. 1167. When a draft is indorsed over for collection, the indorsee is- not a bona fide holder for value, though a creditor of the indorser. Philbrick v. Dallett, 2 J. & Sp. 370 ; S. C., 43 How. N. Y. 409. 1168. Liability for moneys collected by subagents. Collection* agents, to whom notes are intrusted for collection, are liable for mon- eys received by attorneys employed by them, and which are not paid over, although the receipt given for claims when deposited for collec- tion states : " avails are to be promptly paid over on receipt by us." Held, that the defendants' true relation and liability are not at all af- fected by this language. The money was received by them in law when collected by the subagent. The receipt was intended as an as- Burance of prompt payment over and nothing more. Mondel, et al. v. Mower, et al., 55 Howard, N. Y. 242. 1169. An attorney -at-law, employed to collect a debt, may receive payment thereof in money, but has no right to accept anything else in satisfaction without express authority from his client, and if he does it will be no payment unless ratified or assented to by his client. He cannot give the debtor an acquittance of the claim by receiving pay- ment thereof in a debt, he, the attorney, owes the debtor. 1170. He has no right to accept notes, bonds, etc., of the debtor,, as collateral security for the debt, without express authority from hi& client, and if he does so, his client will not be bound unless he assents- to or ratifies the same. If an attorney, without the authority of his- client, accept bonds, etc., of the debtor, with the understanding that he is to collect them and apply them as paj'ment on the claim when collected, in that transaction he is the attornej 7 of the debtor, and not the attorney of his original client. As soon, however, as he receives any money on the claims thus put in his hands for collection by the debtor, it is a payment to that extent, less his fees for collecting, upon the claim of his original client. Wiley v. Mahood, et aZ., 10 West Virginia, 206. 1171. A firm in Michigan left for collection with the plaintiffs, a bank in that State, a sight draft of their own for $500, on " J. C., treasurer of the M. S. Co." a manufacturing corporation in Connecti- cut. The plaintiffs at once sent the draft to the defendants, a bank in Connecticut, with directions to " return at once without protest if not paid." The defendants presented the draft to the drawee, and he re- plied that he would look up his account with the drawers and inform the cashier with regard to payment. The drawers had also written J. C. that such a draft had been forwarded, and he wrote them in reply : " The $500 draft has been received and paid. Don't draw any more." On the receipt of this letter the drawers showed it to the plaintiffs,, who, believing the draft had been duly paid the drawers the $500. J. C., the drawee, was also president of the defendant bank, and this fact w<*s known to the plaintiffs. The draft had not in fact been paid, though the drawee supposed it had, but the defendants had neglected to return it or send notice of its non-payment. If they had returned it at once it would have prevented the paj'ment of the $500 to the drawers. Several days later the cashier returned the draft unpaid, OF STANDARD DECISIONS. 167 which was his first information to the plaintiffs with regard to the matter. The plaintiffs thereupon demanded repayment of the drawers, which was refused. They were solvent, but had no visible property, and the claim could not have been collected without much difficulty. 1172. Held, 1. That the defendants, as agents of the plaintiffs for the collection of the draft, had been guilty of negligence in not ob- taining payment of the draft or returning it at once to the plaintiffs. 1173. 2. That, although the plaintiffs paid the money to the drawers upon the statement of the drawee to the drawers that the draft had been paid, yet, as they would have been saved from loss if the defendants had performed their duty, the defendants were liable for the actual damages resulting from their neglect. 1174. 3. That these damages were to be regarded as the whole amount paid by the plaintiffs to the drawers, and that they had a right to recover this sum, although they had a right of action for the whole amount against the drawers. Merchants 1 and Manufacturers' Bank v. Stafford Bank, 44 Conn. 564. 1175. There can be no legal compromise of a criminal charge, where the person has not been arrested, nor in any way held to answer the charge. In effecting a compromise of larceny, under the statute, the person whose property has been stolen has no right to exact or receive from the person committing the larceny, anything more than the property stolen or its value, and the necessary expense of reclaiming it. Saxon v. Hill, 6 Oregon, 388. 1176. The bank had for collection a draft by Lane on Gibson, and received $60.40 in money, and a sight draft and a ten days' sight draft on B., in settlement of L.'s draft on G. B. paid one draft and ac- cepted the other at ten days. Upon maturity the bank presented it to B. for payment, which was refused, and the bank did not cause the draft to be protested, so as to charge the drawer. Held, that the bank, by failing to have the draft protested, has become liable to L. for the amount of the draft. A bank which receives a note or bill for col- lection is bound to use due and proper diligence in making demand, and giving notice, and causing protests to be made, so as to hold all parties liable, and in default of such diligence the bank becomes re- sponsible to the party who deposited the note or bill. Capital State Bank v. Lane, 52 Miss. 677. 1177. Action upon the note, held, that B. was liable ; that her sig- nature would be considered as having been placed to the note at its date, and this although B. did not know of the arrangement ; that it was sufficient if she signed at the request of M., who had given the assurance. Harrington v. Brown, 77 N. Y. 72. 1178. Plaintiff sent to defendant, its correspondent in the cit % y of New York, for collection and credit, a sight draft, drawn by a bank in Meadville, Pa., upon C. P. & Co., bankers in that city ; on the morn- ing of its receipt defendant presented it to the drawees for payment, received their check for the amount, and delivered the draft to them. Defendant did not present the check for payment on that day ; it was presented the next day, when the bank refused to pay, C. P. & Co. y having failed. Defendant on the same day returned the check to C. P. & Co., received back the draft, formally demanded payment thereof, caused the same to be protested for non-payment, and on the next day due 168 MONROE'S DIGEST notice of non-payment was served by mail upon plaintiff and upon the drawer. In an action to recover damages for alleged negligence on the part of defendant, held, that it was the duty of defendant to have presented the check for payment or certification as soon, as with rea- sonable diligence, it could, and that for any damages arising from the delay in presentation it was liable. First Nat. Bank of M. v. Fourth N. Bank of N. Y., 77 NY. 320. 1179. It appeared that the account of C. P. & Co., at the bank, upon which the check was drawn, was largely overdrawn on the day when the check was received by defendant, but it appeared that the bank had been in the habit of allowing them to overdraw during any day, they depositing collaterals or making the account good when made up the next day, and that the bank paid all checks down to the failure of C. P. & Co., and among them checks drawn after the one given to defendant. Held, that the facts justified the conclusion that the check in question would have been paid had it been promptly pre- sented. First Nat. Bank of M. v. Fourth N. Bank of N. F., 77 N. Y. 320. 1180. It was alleged in the complaint that the draft could be col- lected from the drawer ; plaintiff recovered as damages, the full amount of the draft. Held, error ; that defendant was only liable for the ac- tual or probable damages caused by its negligence ; and that, as suf- ficient was done by it to charge the drawer who was responsible, de- fendant was only liable for nominal damages. First Nat. Bank of M. v. Fourth N. Bank of N. Y., 77 N. Y. 320. 1181. Also, held, that in the absence of proof it would be as- sumed that the common law rule prevailing here also prevails in Penn- sylvania, and that under the law of that State the drawer was charged by what was done by defendant. First Nat. Bank of M. v. Fourth N. Bank of N. Y., 77 N. Y. 320. 1182. Plaintiffs sent to defendant for collection a promissory note payable at its bank, made by U., one of its customers. The note fell due Sunday, July 4th, 1875. On July 3d, defendant marked the note as paid and sent to plaintiff a draft for the proceeds. U., at that time, had a small balance to his credit, but not sufficient to pay the note. On July 6th, defendant having learned that TJ. had failed, stopped payment of the draft, and requested plaintiffs to return it, claiming that it had remitted for the note by mistake. Plaintiffs thereupon re- turned the draft. Defendants, on July 6th, also caused the note to be noted for protest, and mailed. COMITY. 1183. In the interpretation of commercial contracts, this court will be largely influenced, and guided, by the law merchant of the United States, and the constructions of that law made by the Supreme Court of the United States. Chaffraix & Agar v. Price, Hine and Tupper, 29 La. 176. OF STANDARD DECISIONS. 169 COMMON CARRIERS. 1184. A carrier of freight who expressly contracts to deliver goods at a destination beyond the terminus of his own road is answerable for the negligence of any connecting road in the line of transportation. Newalt, et al. v. Smith, et al., 49 Rowell, Vt. 255. 1185. The duty of a common carrier by water is not fulfilled by simple transportation from port to port. The goods must be delivered ; or at least landed, and a reasonable opportunity given to the consignee to inspect them. The Mary Washington, 1 Abbott, U. S. 1. 1186. The general rules require the carrier to notify the consignee of the arrival of the goods. If a carrier relies upon circumstances as -excusing this duty, he must prove them. Ibid. 1187. The fact that after receiving such notice the consignee re- fuses to take the goods, cannot relieve the carrier from liability for injury sustained by them before that time. Ibid. 1188. A discharge of goods upon the wharf, giving reasonable notice to the consignee, constitutes a delivery. The Eddy, 5 Wallace, U. S. 481. 1189. Where insurers, to whom the owners have abandoned, take possession, at an intermediate place or port, of goods damaged during tt voyage by the fault of the carrier, and then sell them, they cannot liold the carrier liable on his engagement to deliver at the end of the voyage in good order and condition. Propeller Mohawk, 9 Wallace, TJ. S. 153. 1190. Insurers, so accepting at the intermediate port, are liable for freight pro rata itineris on the goods. Ibid. COMMUNITY OF PROPERTY. 1191. Property purchased during marriage, whether in the name of the husband or the wife, becomes community property. Succession of Carmelite Planchet, 29 La. 520. 1192. After the dissolution of the community, the husband, as its former head, has no power to sell, and can convey title to no greater part of the community property than his undivided half-interest in it. W. W. Bennett v. J. W. Fuller, 29 La. 663. COMPOSITION. 1193. Where a party induced a creditor to sign a composition agreement, whereby he accepted one-half of his claim in full, upon the representation of his debtor that no person had received any other thing, etc., the fact that the debtor had given his note for $500 to in- duce another creditor to sign the same agreement, which note, upon *uit thereon, was adjudged void, is not sufficient to avoid the contract of composition, as it worked no injury to the creditor. Bartlett, et al. v. Elaine, 83 111. 25. 170 MONROE'S DIGEST 1194. A statute which imposes upon the stockholders of a corpo- ration a personal liability for the corporate debts must be construed strictly ; it is in derogation of the common law, and cannot be extended beyond its literal terms. Chase v. Lord, 77 N. Y. 1. 1195. In law there is not objection to an agreement on the one side to pay, and on the other to accept, a sum of money less than that claimed by the creditor in satisfaction of a disputed balance, and when the debtor pays, the original debt is discharged. Me Call v. Nave 52 r Miss. 494. 1196. Where, in an action on an original indebtedness, defendant sets up and proves a compromise agreement and tender of perform- ance, the tender defeats the action, although not kept good, and plain- tiff is not entitled to recover the percentage agreed to be paid by the compromise agreement. See C. N. Bank v. Kohner, 85 N. Y. 189. 1197. K., defendant's intestate, being indebted to plaintiff and to- two other banks, proposed a compromise, by paying or securing a per- centage, which one or both of the other banks agreed to accept if plain- tiff would. K. proposed to plaintiffs cashier to secure the specified percentage on its claim by a note with G. as indorser. The cashier thereupon, after consultation with plaintiff's president, and at the re- quest of K.'s agent, wrote to one of the other banks, using paper with the bank heading and signing as cashier, to the effect that plaintiff pro- posed to take K.'s note, indorsed by G., for the percentage, and to dis- charge K. in full on payment thereof. Soon after writing, the cashier informed the president and they concluded not to compromise. When r therefore, the indorsed note was tendered, the cashier refused to accept it and repudiated the agreement ; before this was made known to K. he had settled with the other banks on the terms proposed, and had- been discharged. It did not appear that he owed any other debts. K. afterward tendered a certified check for the amount of the compromise. The president and cashier were the active managers of plaintiffs bank. The compromise was not repudiated on the ground of want of author- ity of the cashier, and no proof was given that he acted without au- thority. Compromises were of common occurrence in said bank. In an action upon the original indebtedness, held, that the authority of the cashier to act was, under the circumstances, to be presumed ; that the agreement made was a valid composition agreement, and after per- formance by the other creditors it was too late for plaintiff to recede. Chemical Nat. Bank v. Kohner, 85 N. Y. 189. 1198. It seems, that had there been proof that the cashier exceeded his authority the question would have been different. Chemical Nat. Bank v. Kohner, 85 N. Y. 189. 1199. It is not essential that a compromise agreement should be in writing ; each creditor may make a separate parol agreement for the purpose of carrying the compromise into effect, and after the agree- ment is once made no creditor can withdraw without the consent of the debtor. Chemical Nat. Bank v. Kohner, 85 N. Y. 189. 1200. The note and certified check after tender and refusal were destroyed. Held, that plaintiff having refused to accept performance could not allege non-performance ; that the tender was sufficient to- defeat a suit on the original indebtedness, and, after refusal, plaintiff could only put K. in default by demanding the indorsed note asagreed,. OF STANDARD DECISIONS. 171 or the percentage in money. Chemical Nat. Bank v. Kohner, 85 N. Y. 189. 1201. It seems that had a suit been commenced on the composition agreement, a claim that the tender should have been kept good would have been a good answer to a defence based upon the tender. Chemi- cal Nat. Bank v. Kohner, 85 N. Y. 189. 1202. Also held, that plaintiff was not entitled to recover the per- centage of its claim so agreed upon, as the action was based solely upon the original indebtedness. Chemical Nat. Bank v. Kohner, 85 N. Y. 189. 1203. One who seeks to rescind a compromise of a disputed claim on the ground of fraud must promptly, on the discovery of the fraud,, restore or offer to restore to the other party whatever he has received by virtue of it, if of any value ; the tender must be without qualifica- tions or conditions. Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75. 1204. In an action at law upon the original claim, plaintiff must show that he rescinded the fraudulent compromise prior to the com- mencement of the action ; if no rescission is shown a final determina- tion by the court that plaintiff was entitled to more than the sum paid is no answer to the objection. Gould v. Cayuga Co. Nat. Bank, 86- N. Y. 75. 1205. A creditor, who in executing a composition agreement, has been guilty of fraud in respect to the other compounding creditors, by secretly stipulating for a preference to himself, may not avoid the agreement, because of a similar fraud practiced upon him. White v. Kuntz, 107 N. Y. 518. 1206. The composition agreement is only void as to the innocent creditors executing it. Ibid. 1207. It seems an innocent creditor upon repudiating the compo- sition agreement, is restored to the right to enforce his original claim. Ibid. 1208. It seems that the rule is different where the compromise was of an undisputed claim. Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75. 1209. It seems also that an equitable action to rescind may be brought without such restoration, the plaintiff offering, in his com- plaint, to restore, if not entitled to retain what he has received. Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75. 1210. It seems also that the party may retain what he has received and sue to recover damages for the fraud. Gould- v. Cayuga Co. Nat. Bank, 86 N. Y. 75. 1211. Plaintiff having a claim against defendant, the C. C. N. Bank, for certain U. S. bonds loaned to it, which the bank claimed to have returned, the parties entered into a compromise by which the bank agreed to, and did, pay to plaintiff $25,000 in full satisfaction of the claim. In an action upon the original claim, defendant set up the compromise as a defence ; also a return of the bonds. Plaintiff thereupon proved that the compromise was induced by fraud. It ap- peared that the fraud was discovered prior to the commencement of the action. At the close of the evidence on the trial, and after defend- ant had taken the objection that plaintiff had not returned or offered to return the money paid, he paid into court the amount thereof, with interest, with a statement that the deposit was made upon the condi- tions that it was to be retained until final judgment, and to be restored 172 MONROE'S DIGEST to plaintiff unless the judgment determined that the bank was entitled to it, in which case it should be awarded to the bank. Held, that the tender was insufficient ; and that plaintiff was not entitled to recover Against the bank. Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75. 1212. Where a creditor is induced to compromise a debt upon the receipt of fifty cents on the dollar, by means of the false and fraudulent representations made to him by the debtor, that another of his credi- tors has agreed to accept such compromise, the creditor may, upon discovering the falsity of such representations, maintain an action against the debtor to recover the damages sustained by reason thereof. As in sucli an action the damages sustained b}' the plaintiff depend upon the ability of the debtor to pay more than a moietj 7 of his debts, it is competent to ask witnesses for the defence whether the defendant held property or assets sufficient to pay over fifty cents on the .dollar of his liabilities. Whitside v. Hyman, 17 N. Y. Sup. Ct. Reps. 218. 1213. When an offence is of such a nature that the person injured may obtain either a civil or a criminal remedy, there is nothing unlawful in a compromise of criminal proceedings taken against the offender. Fisher v. Apollinaris Company, 32 L. T. N. S. 628 ; 23 W. R. 460 ; 44 L. J. Ch. 300 ; 10 L. R. Ch. 297. 1214. The doctrine that where a debtor himself, or a near relative, out of compassion for him, pays money exacted by a creditor as a con- dition of his signing a composition, he may be regarded as having paid under duress, and is not equally criminal with the creditor, and o that he may recover it back, if sound (as to which quoere), cannot be invoked in favor of one remotely related by marriage to the debtor ; it can only be asserted in favor of the debtor himself, and the wife, husband or near relative of the blood of the debtor. Solinger v. Earle, S2 N. Y. 393. 1215. Where a note is given in compromise and settlement of a claim in suit, in the absence of evidence of duress, or that fraud was practiced in bringing about the compromise, or that the plaintiff knew that the claim was groundless or fictitious, it is no defence to an action upon the note, that there was a good and meritorious defence to the original claim. Feeler v. Weber, 78 N. Y. 334. 1216. R. holding a promissory note, of which P. was the maker, .and L. the indorser, signed a composition deed, whereby the creditors of P. released all claims against him, the deed to be null and void un- less signed by all his creditors, and wrote after his name the words, " provided this does not release the indorsers in any manner." In an Action against P. by another creditor, who had signed thedeed, L.'s name did not appear among the signers of the deed ; but it was agreed that if the signing by R. did not release the indorser, then all the creditors had signed. Held The condition annexed by R. to his sig- nature of the deed of composition was equivalent to a reservation of his rights against Lochman as indorser of the note held by R., and did not prevent his execution of the deed from operating as a release of all his rights against P., the maker of that note, although it could not affect any right of L. against P. Sohier v. Loring, 6 Gush. 537 ; Tobey v. Ellis, 114 Mass. 120. But the report expressly states that if this execution of the deed by R. did not release the indorser, all the OF STANDARD DECISIONS. 173 creditors of P. had signed the composition deed which, as L.'s name does not appear among the signers of that deed. 1217. The taking, by a creditor, of the debtor's note for an existing indebtedness does not merge or extinguish the indebtedness ; the note is simply evidence of the debt, and its operation is only to extend the time of payment. Jagger Iron Co. v. Walker, 76 N. Y. 521. 1218. When default is made in payment, the creditor may sue upon the original demand and bring the note into court to be delivered up- on trial. Jagger Iron Co. v. Walker, 76 N. Y. 521. 1219. And so, successive renewal notes are simply extensions- from date to date of the time of payment. Jagger Iron Co. v. Walker, 76 N. Y. 521. 1220. This rule is not changed by the facts that the first of a series of notes so given was indorsed and procured to be discounted by the creditor, and the succeeding ones were each discounted to raise money to take up the preceding one. No note in the series is a payment of the preceding one, unless there has been a discharge of the creditor as indorser, or unless by the transaction he has obtained a claim against another party. Jagger Iron Co. v. Walker, 76 N. Y. 521. 1221. Plaintiff, who was a brother-in-law of N., of the firm of N. & Co., to induce the defendants, who were creditors of that firm, to- unite with the other creditors in a composition of its debts, secretly agreed to and did give them his promissory note for a portion of their debt beyond the amount to be paid by the composition agreement. Defendants transferred the note before due to a bona fide holder, and plaintiff was compelled to pay. Held, that the agreement was a fraud upon the other creditors; that it was not divested of its fraudulent character by the fact that it was made, not by the debtor, but by a^ third person ; and that an action was not maintainable to recover back the amount so paid. Solinger v. Earle, 82 N. Y. 393. 1222. Where the drawer of a check has no funds at the time in the bank to meet it, the check is due immediately without present- ment and demand, and the statute of limitations begins to run from its date. Brush v. Barrett, 82 N. Y. 400. 1223. Where, therefore, the holder of the check delays for six years to enforce his claim it is barred by the statute. Brush v. Barrett r 82 N. Y. 400. CONFEDERATE CURRENCY. 1224. A co-surety, who discharged a judgment by. paying it in Confederate money, can maintain an action for contribution against the other surety. The value of the Confederate money, at the pay- ment, with interest, was the amount which such payment would entitle plaintiff to recover; not the amount of the judgment discharged. Edmonds v. Sheahan, 47 Texas, 443. 1225. The fact that a payment of a note was in Confederate States Treasury notes, did not prevent it from being a valid payment when made. Long v. Walker, 47 Texas, 173. 1226. A sale of property, for cash, was made in Monroe County r 174 MONBOE'S DIGEST with reference to Confederate States Treasury notes as a standard of value, on December 26th, 1862. The balance of the purchase money actually paid must be reduced to its true gold value as to that date ; but in ascertaining this value, the price at which gold was then selling in Confederate currency in Richmond or elsewhere in the Confederate States is not to be regarded as fixing the relative value of gold and Confederate notes. The value of Confederate notes then, as compared with gold, should be ascertained by the then average apparent appre- ciation in value, when sold for Confederate currency, of all kinds of property, real and personal, in Monroe County, as compared with the value of such property just before the war commenced, when gold was the currency of the country. Bierne \. Brown's Adm'r, 10 West Tirgtnia, 748. 1227. A decree, or a judgment, when rendered upon a contract payable in Confederate Treasury notes, should be for a sum equal to the value of those notes, not in the gold coin, but in the legal-tender currency of the United States, at the time and the place where they were payable. Such notes can in no proper sense be regarded as commodities merely. Bissell v. Heyward, 96 U. S. 580. CONFLICT OF LAWS. 1228. The lex loci governs in determining the validity, and in the construction of contracts, but in respect to the time, mode and extent of the remedy the lex fori governs. Statutes of limitation fixing the time within* which an action may be brought, laws providing for a set- off, and statutes exempting property from levy and sale for debt, or exempting wages from garnishment, relate to the remedy only, and such laws of a State where a debt is contracted cannot be invoked where the remedy is sought to be enforced in a different State. Mineral Point R. R. Co. v. Barron, 83 111. 365. 1229. The law of this State prohibiting an individual from doing business under a firm name, does not affect a person residing in an- other State. Succession of 'Bofenschen, 29 La. 711. 1230. The decisions of the court of one State upon a question of commercial law are not obligatory upon the courts of other States ; and when such decisions are in conflict with the principles of the com- mon law concurred in by the courts of this State, they, will not control ven as to contracts made here but to be performed in the State where such decisions were made. Faulkner v. Hart, 82 N. Y. 413. 1231. It seems, however, that when the question arises under a State statute the construction placed upon the statute by the courts of the State, will control. Faulkner v. Hart, 82 N. Y. 413. 1232. An assignment by virtue of or under a foreign law does not operate upon a debt, or rights of action as against a person in this State. Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367. 1233. Plaintiff, a corporation organized under the laws of Mich- igan, and doing business in that State, being the owners of a note made by I. and D., which, with other debts, was secured by a mortgage upon a propeller, before the maturity of the note, transferred it and the OP STANDARD DECISIONS. 175 mortgage to a Detroit bank. After the maturity of the note I. went to Detroit and applied to the bank for an extension of time, and it was agreed between him and the bank that provided the latter could get the consent of the indorsers of said note it " would extend the time of payment so that the amount could be paid in installments not exceed- ing for any part a period of three months." I. to give new notes for the amount, indorsed to the satisfaction of the bank, to be held as further and additional security, and to pay interest at the rate of ten per cent, per annum. The bank procured the assent of the indorsers and sent one M. with the note and mortgage to Buffalo with directions to foreclose the mortgage unless the note was paid or said arrangement was carried out. I. thereupon procured and delivered to M. new notes made by him in pursuance of the agreement for the amount of the note and interest. Two of said new notes were dated at Buffalo, August 7th, 1875, payable with seven per cent, interest to the order of defendant, and by him indorsed for the accommodation of I., the latter also paid to M. a sum equal to the difference in interest between that called for by the notes and that agreed to be paid, from the time of maturity of the old note until the new notes by their terms became due. M. delivered the new notes and the money to the bank at Detroit, which accepted the same and thereupon extended the time of payment as agreed. In an action upon the notes one of the defences was usury. Held, that the contract for forbearance was a Michigan one, and as it was valid under the laws of that State was valid and enforceable here. West Tr. & Coal Co. v. Eliderhouse, 87 N. Y. 430. CONSIDERATION. 1234. The waiver of a legal or equitable right is a sufficient con- sideration to support a promise. Where there is any consideration, the law will not inquire into its adequacy. Buckner v. Mcllroy, 31 Ark. 631. 1235. Debt barred by statute sufficient consideration for new promise. Gammell v. Parramore, 58 Ga. 54. 1236. An agreement to forbear proceedings is a valid consider- ation for a promise, though the claim be doubtful. Matthews V. Morris, 31 Ark. 222. 1237. Where a promissory note is given for a draft assigned by the payee of the note to the maker, and an agreement executed at the same time, that, in the event the maker of the note could not " collect or realize " on the draft, he was to be released from the payment of the note, no recovei'y can be had on the note where the maker has been unable to realize anything on the draft. And the fact that the assignee of such draft becomes indebted to the drawer, does not change the rule or show that the holder has realized anything on it, when no suit has been brought by the drawer on his demand to enable the holder to set off the draft against the same. Hall, et al. v. Henderson, 84 111. 611. 1238. Although the consideration for a promise or undertaking 176 MONROE'S DIGEST may be expressed in a separate writing of the parties, still, parol evidence may be received to show that the real consideration was different, where the defence goes to the consideration. Where an action is brought upon a written contract, resort may be had to parol evi- dence for the purpose of impeaching the consideration of the agree- ment. Wolfv. Fletemeyer, 83 111. 418. 1239. The giving of his individual promissory note, by one of the members of a copartnership, after its dissolution, for a portion of a co- partnership debt, is a good consideration for an agreement on the part of the creditor to release and discharge the maker from liability for the debt. Ludington v. Bell, 77 N. Y. 138. CONSTITUTIONAL LAW. 1240. The Legislature in chartering a corporation has the power to provide that it may lose its corporate existence, without the inter- vention of the courts, by any omission of duty or violation of its charter, or default as to limitations imposed. E'klyn St. Trans. Co. v. City of B'klyn, 78 N. Y. 524. CONSTRUCTION OF STATUTES. 1241. The practical construction put upon a statute by public officers whose duty it is to obey it is not controlling upon the courts. In re Manhat. Svgs. InsCn, 82 N. Y. 142. CONTRACT. 1242. Contract of sale induced in part by a desire on behalf of both vendor and purchaser to cause certain promissory notes of the vendor's to be paid, on which he has forged the names of persons as in- dorsers, and thereby to prevent a prosecution for the forgery, is illegal and void, and leaves the property subject to attachment by the vendor's creditors. Laing v. Me Call, 50 Vt. 657. 1243. A., who had bought ice of B., ceased to take it on account of dissatisfaction with B., and contracted for ice with C. Subsequently,. B. bought C.'s business and delivered ice to A., without notifying him of his purchase until after the delivery and consumption of the ice. Held, that B. could not maintain an action for the price of the ice against A. Boston Ice Co. v. Potter, 123 Mass. 28. 1244. A contract simply giving a right to take ore from a mine r no interest or estate being granted, merely confers a license. Silsbyv. Trotter, 29 N. J. 228. 1245. Courts cannot protect the rash against the consequences of imprudent contracts, if they enter into them voluntarily, and not OF STANDARD DECISIONS. 177 through fraud or artifice. A deed made by a person while in a state of intoxication will be set aside if advantage has been taken of his situation, or his drunkenness was produced by the act or connivance of the person to be benefited by the deed. O" 1 Conner v. Rempt, 29 N. J. 156. 1246. B. executed his promissory note to H. & D., payable Jan- uary 15th, 1876, in the usual form, with the addition of the following words : The above note is given upon, and for the sole consideration that the said Hawley & Dodd have agreed and promised that upon the payment of the said note at maturity (time being of the essence of the contract), they will sell and transfer to the undersigned, Bingham, the planing machine which they have this day entrusted to him. Held, that the promise of B. was not dependent upon the promise of H. & D. to sell and transfer the machine as a condition precedent ; but that it was an independent promise to pay. Hawley v. Bingham, 6 Ore- gon, 76. 1247. It seems that the rule in this State, that a common carrier may, by express stipulation, exempt himself from liability for negli- gence, will not be considered as overthrown or affected by the decision of the United States Supreme Court to the contrary. (Lockwood v. R. R. Co., 17 Wai. 357.) Maynard v. S. B. & N. Y. R. R., 71 N. y. iso. 1248. If a written agreement which is intended to be signed by several persons or parties thereto is not signed by all, it is not com- pletely executed and does not bind any of the parties. Barber v. Bur- rows, 51 Gal. 404. 1249. An agreement will not be adjudged illegal when it is capable of a construction which will uphold and make it valid. Lorrillard v. Clyde, 86 N. Y. 384. 1250. When a contract is open to two constructions, the one law- ful and the other unlawful, the former must be adopted. Hobbs v. McLean, 117 U. S. 567. 1251. One of the parties to a contract cannot rescind unless he restores or offers to restore the other party to his original position, he cannot retain in himself or withhold through another any fruits of the contract. Francis v. N. Y. & B. EL R. R. Co., 108 N. Y. 93. 1252. Where there is uncertainty or doubt as to the meaning of words or phrases used in a contract, in seeking for the intent of the parties as evidenced by the words used, the fact that a construction contended for would make the contract unreasonable and place one of the parties entirely at the mercy of the other, may properly be taken into consideration. Russell v. Allerton, 108 N. Y. 288. 1253. Where a party by fraudulently concealing his insolvency and his intent not to pay for goods, induces the owner to sell them to him on credit, the vendor, if no innocent third party has acquired an inter- est in them, is entitled to disaffirm the contract and recover the goods. Donaldson, Assignee v. Farwell, et al., (3 Otto) U. S. Rpts. 93, 631. 1254. The defeasible title of the vendee to the goods so acquired vests in his assignee in bankruptcy, and is subject to be determined by the prompt disaffirmance of the contract by the vendor. Ibid. 1255. What one party to a contract understands or believes is not to govern its construction unless such understanding or belief was in- 12 178 MONROE'S DIGEST duced by the conduct or declarations of the other party. Bank v. Kennedy, 17 Wallace, U. S. 19; also Bailey v. Railroad Company, 17 Wallace, U. S. 97. 1256. The provisions of the constitution and by-laws of the New York Exchange are obligatory upon its members as a contract. Wes- ton v. Ives, 97 N. Y. 222. It seems clear that a lunatic is liable upon executed contract for articles suitable to his degree, furnished by a person who did not know of his lunacy, and practiced no imposition upon him. Williams v. Wentworth, 5 Beav. Eng. 325 ; also, Selby v. Jackson, 6 Beav. Eng. 192. 1257. Where A. advanced money on mortgage to B.,a lunatic, but did not know B.'s state, and took no advantage of him, he was held to a decree of foreclosure. Campbell v. Hooper, 24 L. J. (Ch.) Eng. 644. 1258. It seems equally clear that he is not liable when the other contracting party has taken advantage of his lunacy ; indeed, that was the decision in Levey v. Baker reported on Brown v. Jodrell, M. & M. Eng. 106. 1259. A positive promise which is not contrary to law or to public policy, or obtained by fraud, imposition, undue influence, or mistake, is an obligation in morals, and is a sufficient consideration for a subse- quent express promise. Bentley, et al., executors v. Lamb, 112 Penn. 480. 1260. A verbal promise by an executor, either with or without as- sets, to a legatee to pay a legacy, since the Act of April 26th, 1855. P. L. 308, imposes no personal liability upon him, and no right of action against him can therefore be maintained. Smith v. Carroll, 112 Penn. 390. 1261. Contracts, when binding : either party may withdraw and refuse to complete a contract any time before an agreement is actually entered into. Eliason v. Henshaw, 4 Wheat. 228. 1262. A party making an offer may withdraw it any time before the other party has accepted it. Payne v. Cave, 3 T. R. 148 ; Eutledge v. Grant, 4 Bing. 653. 1263. But where the other party accepts before he is notified of the withdrawal of the contract, it is binding. Cook v. Oxley, 3 T. R. 268, 653 ; in Maryland, Wheat v. Cross, 31 Md. 99; Stockhamv. Stock- ham, 32 Md. 196 ; in Alabama, Falls v. Gaither, 9 Post. (Ala.) 605 ; in ^New Hampshire, Abbott v. Shepard, 48 N. H. 14. 1264. The unsupported oath of one of the parties to an instru- ment is not sufficient to defeat or change it when opposed by the oath of the other party. Jones v. Backus, et al., 114 Penn. 120. 1265. Parol evidence is admissible to show a verbal, contem- poraneous agreement which induced the execution of a written obli- gation, though it may vary or change the terms of the written con- tract. Cullmans,et al. v. Lindsay, et al., 114 Penn. 166. 1266. A written agreement may be modified, explained, reformed, or altogether set aside by parol evidence of an oral promise or under- taking material to the subject-matter of the contract, made by one of the parties at the time of the execution of the writing, and which in- duced the other party to put his name to it. Ibid. See Juniata Building Ass. v. Hetzel, 7 Ont. 507 ; also, Walker v. France, (2 Amer- man ) U 2 Penn. 203. OF STANDARD DECISIONS. 179 1267. Where upon agreement between them, A. and B. have placed in the hands of C. each a certain sum, and C. was to contribute & like sum, the fund created to be wholly for the benefit of D., then in ignorance of the arrangement, and the control of it entirely relin- quished by the contributors, D. may sustain an action in his own name against C. to enforce payment of the fund to him. Hostetter v. Hoi- linger, 117 Penn. 606. 1268. To reform a written contract on the ground of fraud, evi- dence that it was fraudulently misread to the defendant when he signed it, by a third person to whom it was entrusted merely for the purpose of delivery, is insufficient. Sylvius v. Kosek, 117 Penn. 67. 1269. Every contract must be mutual as to remedy and obligation, And will not be enforced against one who has not the power to enforce it in his own behalf. Ryan v. Dunphy, 4 Mont. 342. 1270. An agreement by one of three parties to the other two, all three of whom were equally obligated to a fourth party, to procure the payment of their common indebtedness from other resources of an in- solvent company ; for which they were personal security, is without any valid consideration and void. Kinna & Ming v. Wool/oik, 4 Mont. 318. 1271. If no time is fixed for payment of money acknowledged to be owing, it is due at once, or at any time the payee choose to demand it. Sweetland v. Barrett, 4 Mont. 217.. 1272. Meaning of the words, " Value received" In a guaranty written on the back of a promissory note the words value received im- part a consideration which is prima facie sufficient to support the con- tract. Semble, that a guaranty is an original undertaking upon which the guarantor is liable in the absence of proof that the maker of the note is insolvent or that diligence was used to collect from him. Mar- tin v. The Hazard Powder Co., 2 Colorado, 596. 1273. When one party to a contract violates it, he cannot avail himself of its provisions against the other party, and such other party lias a right to consider the contract rescinded. Scheland v. Erpelding, 6 Oregon, 258. 1274. Where E. delivered a note of H. to his son, with instruc- tions to go to H. and buy a mule, and enter the price of the mule on the note as a credit, and the son entered into a bargain with R. to buy a horse for $125, with the understanding that if R. did not collect the amount out of the note by a certain time, he was to have his choice to take the horse back or take $125 for him ; Held, that the legal effect of the transaction was to place the note with R. as a security for the price of the horse, and the property of the note remained in E. Earp v. Richardson, 78 N. C. 277. 1275. Degree of proof to establish. A subsequent contract will not operate to extinguish a former one between the same parties unless it is expressly accepted by them for that purpose. The evidence must be clear and satisfactory that such was intention of the parties. Wat- son v. Janion, 6 Oregon, 137. 1276. A purchaser at an execution sale cannot in equity be ex- cused from consummating his purchase because never having attended such a sale before, and not hearing the terms of the sale, he supposed himself to be buying the entire estate in question, and not the " right, 180 MONROE'S DIGEST title, and interest " of the judgment debtor in it. Upham v. Hamill r 11 R. I. 565. 12T7. Where a commission merchant contracts for the purchase of grain for another, to be delivered at a future time, the principal mak- ing an advance on the purchase, which is in the merchant's name, and agrees to keep the margin good up to the time of delivery, the relation of pledger and pledgee will not be created, so as to require a notice of the time and place of a sale on failure to keep up the margins. Cobett v. Underwood, 83 111. 324. 1278. Memorandum of contract as follows : " I hereby agree to- sell J. K. the house and lot situated on L. Street, second lot east of C. Street, on north side of L. Street, for the sum of ($7,000) seven thou- sand dollars, and agree to give a satisfactory deed on or before the first day of September next, and hereby acknowledge the receipt of ten dollars on account of above sale." Signed W. E. T., J. K. In an action by W. E. T. against J. K., Held, that the memorandum was- sufficient to bind J. K. Thornton v. Kelly, 11 R. I. 498. 1279. A contract for the sale of wheat in store, to be delivered at a future time, which requires the parties to put up margins as secur- ity, and provides that, if either party fails, on notice, to put up further margins according to the market price, the other may treat the con- tract as filled immediately, and recover the difference between the con- tract and market price, without offering to perform on his part, or showing an ability to perform, is illegal and void, as having a perni- cious tendency. Lyon & Co. v. Culbertson, Blair & Co., 83 111. 33. 1280. All contracts for sale made on 'Change by members of the Board of Trade to another member, with reference to the by-laws and rules of the board, must be construed as if those rules were expressly made a part of the contract ; but members of that board may, by con- tract on 'Change or elsewhere, bind themselves beyond and independ- ent of these rules. Where the sale is made at its rooms, in the ab- sence of proof to the contrary, it will be presumed to have been made with reference to these rules. Thorne, et al. v. Prentiss, 83 111. 99. 1281. S. residing in Indiana, received from W., a commission merchant of Cincinnati, $6,000, advanced on account of pork, to be thereafter cut and shipped by S., for sale on commission. In pur- suance of the contract, S. shipped by rail a car-load of the pork, con- signed to W., at Cincinnati, to whom he also sent an invoice of the shipment, with a letter of advice, stating : " We deliver this load on our indebtedness." The value of the shipment was less than the amount of such indebtedness. The bill of lading was taken by S. in his own name, and was not forwarded to the consignee. Held r under these circumstances the delivery of the pork by S. to the car- rier was equivalent to a delivery to the consignee, and that after such delivery S. retained no such interest in the pork as could subject to- attachment at the suit of a creditor. Strauss v. Wessel, 30 Ohio, 211. 1282. In case of a mistake in the drafting of a contract, if the parties subsequently settle upon a basis of the contract as it should have been written, and a promise is made to paj r or allow the balance thus found due, such promise will be enforced. A written agreement may be waived, varied or annulled, by a subsequent oral agreement of the parties. OF STANDAKD DECISIONS. 181 1283. In Ooss v. Lord Nugent, 5 Barn, and Ad. 65, Eng., Lord Denman states the law on this subject thus : " After the agreement lias been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either alto- gether to waive, dissolve, or annul the former agreement, or in any measure to add to, or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement, and partly by the subsequent verbal terms en- grafted upon what will thus be left of the written agreement." Ap- proved in Wiggin v. Godwin, 63 Me. 389. 1284. The agreement by which a creditor, who has bought his debtor's property, stipulates to reconvey it to the debtor on condition that the latter pays a certain price within a certain time, is a valid contract, and if the debtor fails to pay the price, in accordance with the terms of said contract, his right of redemption will be forfeited, and the title of the property will vest absolutely in the purchaser. Soulie v. Hanson, 29 La. 161. 1285. Contracts made on Sunday in this State are void, not at common law, but because they are in violation of a penal statute of this State. So an action by the payee, against the maker on a prom- issory note, and answer, alleging the signing and delivery of the same on Sunday to a third person or to a co-maker, and averring it to be therefore void, is sufficient. Such signing and delivery on Sunda} 1 " carry with it no implied authority to the person to whom it is en- trusted, to deliver the same to the payee. Such signing and delivery on Sunday render the instrument void, though then entrusted to an- other with instructions to deliver it to the payee on a business day. Davis v. Barger, 57 Ind. 54. 1286. Twelve persons entered into the following obligation under seal : Whereas, P. S. is employed by the Baltimore County Brewing, Malting and Distilling Company, as the manager of said company ; And whereas, the said P. S. is employed and authorized to purchase the malt and hops for said brewery ; and whereas, each of the direct- ors of said company have agreed to become individual^ responsible in the sum of twenty-five hundred dollars each for malt and hops which the said manager shall purchase for the use of the said brewery, dur- ing the space of one year from the date hereof. Now, therefore, these presents witness, that in consideration that said P. S. will undertake said authority and employment, and that dealers in hops and malt will sell to him upon the faith of this bond, we bind ourselves and each of us, our and each Of our heirp, executors and administrators, in the sum of twenty-five hundred dollars each, making in all the sum of thirty thousand dollars, for the payment of hops and malt, which the said P. S. may purchase for the use of said brewery, during the space of one year from the date thereof ; and we, and each of us agree and promise, that we will pa} 7 such hops and malt bills, in total not exceed- ing the sum of thirty thousand dollars, or twenty-five hundred dollars ^ach, in the manner and at the time the said P. S. shall agree to pay them. In an action against all of said obligors, it was Held, First, That in the construction of said paper, as in the construction of all written instruments, the cardinal rule to be observed, was to ascertain the intention of the parties as expressed on the face of the paper. 182 MONROE'S DIGEST Second, That the said instrument construed all together and in all its parts, was a contract by which each of the obligors had bound him- self severally for $2,500 only. Boyd, et al. v. Kienzle, et al., 46 Md. 294, 1287. Equity can no more enforce a void contract than can a court at law. Reed v. Reeves, Adm'r, 13 Bush, Ky. 447. 1288. To establish a contract by acceptance of a proposition, it- must appear that the one making it was notified of the acceptance, loss's Appeal, 73 Penn. 39. 1289. Contract between creditor and principal, or creditor and surety, without the concurrence of co-sureties, whereby the latter are subjected to an increased risk, operates as a discharge of such sureties. The release of one or more sureties without the assent of the co-sure- ties will operate at law to discharge the latter. In equity, however,, the rule is different, and the-release of one or more sureties will not be construed to have this effect, unless it subjects the co-sureties to an in- creased risk or liability. Smith, et al. v. State, use of County Corn- miss' rs of Baltimore Co., 46 Md. 617. 1290. Although the parties may be longer than a year in the per- formance of a contract, still, if that performance may be completed within a year, and such performance is entirely in accordance with the intention and understanding of the parties, such contract is not within, the statute, and need not be in writing, in order to maintain an action upon it. Although a cause of action may relate to the subject-matter of a patent right, it is within the jurisdiction of State Courts, if it does not involve the validity of the patent right. Blakeney v. Goode r 30 Ohio, 350. 1291. On a treaty of marriage, a promissory note was given in con- sideration of the marriage, which was afterwards solemnized, and an action was subsequently brought by the indorsee against the two joint and several makers of the note, Held (reversing the decision of the Common Pleas), that as the marriage, the consideration for the note,, could not be undone, it was not competent to the defendants to avoid the note upon the ground of fraud practiced during the marriage treaty. 1292. That when a party exercises his option to rescind for fraud T he must be in a state to rescind that is, he must be in such a situa- tion as to be able to put the parties into their original state before the contract. Hogan v. Daniel and Thos. Healy, Irish Reports, Common- Law Series, vol. 11, p. 119. 1293. Where a party to a contract, who is entitled to a forfeiture in case of non-performance by the other party of a condition therein,, by his own act induces such other party to omit strict performance within the time limited, he cannot exact the forfeiture, if the party in technical default with reasonable diligence thereafter performs or offers- to perform. Leslie v. Knickerbocker Life Ins. Co., 18 Sickels, N. Y. 27. 1294. A written contract having no latent ambiguity can neither be qualified nor controlled, enlarged nor diminished, by evidence of a contemporaneous parol understanding. Thus where defendant ad- dressed plaintiff by writing signed by him and plaintiffs agent, re- questing them to send him a set of patent milk-pans, and saying, " I agree to pay 3 r ou .... if satisfied with the pans," it was Held, that evidence of an agreement between defendant and said agent as to OF STANDARD DECISIONS. 183 manner in which the pans should be tested, entered into at the time the written contract was drawn, and as part of the same agreement, was inadmissible. If one order goods, agreeing to pay if satisfied therewith, he must, in ascertaining whether he is satisfied or not, act honestly, and in accordance with the reasonable expectations of the seller as implied from the contract, its subject-matter and surrounding: circumstances. His dissatisfaction must be real and not pretended, to be available as a defence to an action for the contract price. Daggett, et al. v. Johnson, 49 Rowell, Vt. 345. 1295. An action for a breach of contract must be brought by the party with whom the contract was made. Corbett v. Schumacher , 83 111. 403. 1296. Although an action cannot be maintained upon a verbal con- tract not to be performed within one year, yet when such contract has been fully performed by one party, the other having obtained its bene- fits, he cannot refuse to pay the reasonable value thereof. T. agreed to work until coming of age, a period of six years or more, for M. Having performed the contract, T. may maintain an action quantum meruit for his services. Towsley v. M., New Series, 30 Ohio, 184. 1297. The distinction between a covenant to secure against liabil- ity and one to indemnify against damages by reason of non-perform- ance of some specified act, pointed out. Nat. Bank v. Bigler, 83 N. Y. 51, necessarily implies that the relation between him and P. was such that he was not a creditor of P., and would, if called upon to pay the note as indorser, have any right to recover against P. The deed of composition having been signed by all the creditors of P. is a bar to this action against him. Judgment on the verdict for the defendant. Richardson v. Pierce, 119 Mass. 165. 1298. An agreement of creditors " to accept seventy-five per cent, of the amount of indebtedness as set against our respective names ; said seventy-five per cent, to be paid in two, four and six months, from December 15th," the contract to take effect " provided all merchandise indebtedness accept the same settlement," is an agreement on the part of a creditor, who has sold the debtor merchandise to compromise the whole claim set against his name, and rests upon sufficient considera- tion. Farrington v. Hodgdon, 119 Mass. 453. 1299. Creditors signed an agreement " to accept seventy-five per cent, of the amount of indebtedness as set against our respective names ; said seventy-five per cent, to be paid in two, four and six months, from December 15th," the contract to take effect " provided all merchandise indebtedness accept the same settlement." A., one of the creditors, held three notes of the debtor, two of which he had pre- viously sold, taken back under false representations by the purchaser, and at the time he 'signed the above agreement was, with the knowl- edge of the debtor, endeavoring to force the purchaser to take the notes back, which was done before December 15th. Held, in an action by A. upon the note not sold, that A. not being in possession, or hav- ing control of the two notes sold, the debtor was not obliged as to whom to tender the settlement notes. Held also, as to the note in suit, that the debtor was not obliged to tender a settlement note of seventy- five per cent, on that note after the transfer of the other two notes, which the debtor had paid to the purchaser. Held, also, that evidence 184 MONROE'S DIGEST of conversations, tending to show the understanding of parties as to the notes sold, prior to the execution of the agreement, was not ad- missible to vary the written contract. Ibid. 1300. The creditors of A. and B. by a composition deed agreed to accept from A. and B. "ten per cent, of the amounts due us, and each of us, from said A. and said A. and B. in full settlement and discharge of our debts against them ; said ten per cent, to be paid within thirty days." The plaintiff, one of A.'s creditors, who joined in the composi- tion, held a note and account against him, which were then due. H also held another note, which would not become due until after the ex- piration of said thirty days, on which A.'s name appeared as indorser. The defendant contends that upon payment often per cent, of amounts due, he was entitled to be discharged from all debts, whether due or not. Held, whatever might have been the effect of the deed upon debts, the liability for which was fixed, the character and language of the deed does not indicate that it was intended to be a relinquishment of all liabilities, by reason of which the defendant might afterwards, upon the occurrence of certain events, become chargeable as a debtor. While such a contingent demanded, yet it should appear that they had it in view at the time of executing the deed. Pierce v. Parker, 4 Met. 80, 89. Here everything points to the opposite conclusion. Before it could be determined whether the defendant would become liable to pay this note, the composition deed would by its terms have been fully executed. There were two claims to which it strictly applied ; and the subsequent conduct of the parties, who made no provision for any dividend upon this, tends to show that it was not understood upon either side that this claim was released. Hamblen v. Rartigan, 119 Mass. 153. 1301. A contract can only be rescinded by the acts or assent of all the parties. A party, claiming to have rescinded a contract, cannot excuse himself for not returning a promissory note, by showing that it is worthless by reason of its maker's insolvency. Where a party Jiad produced and surrendered to a referee at the trial certain notes, but had neglected seasonably to return other notes, mrid the object was insisted upon, it was held that by leave of court he might re- sume the notes so surrendered. Spencer v. St. Glair, 57 Hall, N. H. p. 9 ; Cook v. Oilman, 34 N. H. 556 ; Evans v. Gale, 21 N. H. 240 ; Winkley v. Foye, 28 N. H. 513. 1302. I. sold stock to T., and agreed that when T. should desire it, he would take it back and repay the price. Held, that upon tender of the stock T. might recover the price with interest. Laubach v. Laubach, 73 Penn. 389. 1303. On a refusal by a vendee to accept goods sold him, the aneasure of damages is the difference between the contract and the market price at the time of refusal. Where the contract is that the vendee may rescind the contract, the vendor to pay back the price, or the contract is rescinded by the vendee by reason of inherent vice ; the measure of damages is the price paid and interest. Laubach v. Lau- bach, 73 Penn. 389. 1304. A. directs B. to give credit on the application of C. for such goods as the latter may order, and charge to him, as it is immaterial whether A. had any thing further to do with ordering the specific OF STANDARD DECISIONS. 185 goods, or whether C. is the agent of A. If B., relying on the general direction of A. to deliver goods to C., furnishes goods to C. but gives credit to A., A. is liable whether C. is A.'s agent or not. Jackson, et al. v. Dodge, 4 Mo. Ct. Appeals (St. Louis) 567. 1305. As a general rule, an action on a contract must be brought in the name of the party having the legal interest therein. A third party may maintain an action in his own name upon a contract made expressly for his benefit where his release would be a sufficient discharge to the promissor, but not where it would leave the promis- sor liable to an action by the other contracting party. Kountz v. Holthouse, 85 Penn. St. 235. 1306. When the plaintiff in an action on a promissory note avers, in his replication, that the note was given to bind a parol contract for the conveyance of land, to be paid if defendant refused to carry out the bargain, and to be void if the contract was carried out, and that defendant had refused to carry out his part of the contract, it is error to render judgment for defendant on the pleadings. There is nothing illegal, immoral, or unconscionable in such a contract. Schencko v. Meier, 4 Mo. Ct. Appeals (St. Louis) 566. 1307. A contract for the deliver}- of property being entire, the promissee is not bound to receive a part, though the parties may by consent, sever the contract. In an action upon two due bills payable in specific property, one requiring demand, the other not, and the parties having severed the contract by delivery and receiving part of the property from time to time, held, that the plaintiff, to maintain his action, must show a demand and refusal as to the first due bill, and as to the residue remaining undelivered on the second. Widner v. Walsh, 3 Colo. 548. 1308. When one person represents that he owes to the debtor of another a debt of equal amount, substitutes himself in place of the debtor by parol agreement with the creditor, fixes a time for paj'ment, and thus induces the creditor to discharge the debtor and trust exclu- sively to him, his undertaking to pay is not collateral, but original, and performance may be enforced whether he ever in fact owed any thing to the debtor in whose stead he agreed to be bound or not. Eden field v. Canady, 60 Ga. 456. 1309. It is not a good defence to a promise in writing under seal, to pay a sum of money, for value received, that it was voluntary. The statutes concerning evidence (Rev., p. 380, 16) which permit a de- fendant to plead and set up fraud in the consideration, and (Rev., p. 387, 52) to show want of sufficient consideration as a defence to a sealed instrument established new rules of evidence, but were not in- tended to abolish all distinctions between simple contracts and special- ties. Aller v. Aller, 40 N. J. Law Reports, 447. 1310. A planter who has agreed to consign, and pay commission on his entire crop to his factors, in consideration of certain promises and stipulations in his favor made by the factors, is released from his obligation to consign and pay such commission on whatever balance of his crop he may have on hand, when the factors shall fail and refuse to comply with their stipulations ; more particularly when the failure of the factors to perform their part of the contract, disables the planter 186 MONROE'S DIGEST from performing his part of it. Nalle & Cammack v. A. L. D. Conrad, et al, 30 La. 503. 1311. Defendant signed a written agreement without reading it, and did not contain the contract as in fact made, is no ground for the introduction of parol evidence to vary its terms, etc. It is not the duty of courts to relieve parties from the results of their gross negli- gence. Bostwick v. Duncan, Johnston & Co., 60 Ga. 383. 1312. A written contract containing terms not presenting a case of latent ambiguity, are not to be varied by extrinsic and parol evidence, the expression " payable as convenient " cannot reasonably be under- stood as extended to excuse the defendants in any event, from making any payment at all. It can only mean that some indulgence as to the length of credit was to be allowed to the debtors. The service re- quested in the contract has been performed and the price agreed upon, as the compensation for that service is yet unpaid, though due and payable. Black v. Bachelder, et al., 120 Mass. 17 J. 1313. When it is attempted to be shown by parol evidence that the operation of a contract was to be limited to a particular time, the evi- dence thereof must be positive and clear. Shepler v. Scott, 85 Penn. 329. 1314. Written contracts are to be interpreted by the court, and their ambiguities explained by surrounding facts, not by the interpre- tation of witnesses. Home Life Ins. Go. v. Potter, et al., 4 Mo. Ct. Appeals (St. Louis) 594. 1315. Contract signed by one party only, is accepted by the other party, it becomes binding upon both parties, the same as if signed by both. Brandon Mfg. Co. v. Morse, 48 Vt. 322. 1316. Contract in writing for the sale and delivery of a certain quantity of wood at a stipulated price per cord, did not, in terms, fix the time of payment. Held, that the law fixed the time as on demand after delivery, and that the fact that the purchaser made voluntary pay- ments to the vendor before delivery, did not vary the contract. Ibid. 1317. An assignee of a lease without warranty cannot set up a de- fect of title in defence to an action upon a note given in consideration of the assignment. In such case the assignee occupies the same posi- tion as a purchaser of real estate under a deed of quit claim. Sanborn v. Cree, 3 Colo. 149. 1318. In an action on a contract for the transfer to the plaintiff, by the defendant, of a certain promissory note, an instruction to the jury, that, if such contract was made for a valuable consideration, the trans- fer should " be made by indorsement, unless a different agreement is made by the parties," and that the burden of proof is upon the defend- ant to establish the latter agreement, is correct. Wade v. Guppinger r 60 Ind. 376. 1319. Where two parties agree as to what shall be done in case one party fails to perform his part of the contract, and upon such failure the thing agreed upon is done, no action lies for such failure, the contract being discharged by the fulfilment of its terms. Heel v. Ewing, 4 Mo. Ct. Appeals (St. Louis) 569. 1320. The rule which forbids the varying of written instruments by parol proof applies only to the parties to the writing. Whitney v, Cowan, 55 Miss. 626. OF STANDARD DECISIONS. 187 1321. In the absence of a stipulation as to the time when an act i& contracted to be done, the law allows a reasonable time for its perform- ance. What is reasonable time depends upon the nature and character of the thing to be done, the circumstances of the case, and the difficul- ties attending its accomplishment. As an abstract question, what ia reasonable time may be one of law ; but unless the facts are admitted,, its determination becomes a mixed question of law and fact. In an action to rescind a contract, a proffer to perform, made in defence,, should show an ability to comply, or a reasonable prospect of being able to do so. Hart v. Bullion, 48 Texas, 278. 1322. Where one brings an action to recover compensation for pro- curing a sale of real estate under a special contract, it is not necessary to show that he had a license to act as a real estate broker. Shepler v. Scott, 85 Penn. St. 329. 1323. A party may not stand by and see work in the erection of a building progress to completion, and then for the first time object that the work was not done in strict accordance to the plan, refuse pay- ment and charge the builder with the cost of reconstruction. The builder is in such case, entitled to recover what the work is reason- ably worth. When work is done under a contract, the terms of the contract should settle the amount to be paid, unless it is shown that in. consequence of variations from the plan, the compensation agreed upon should be diminished, and the proper measure of damages in such case is the diminution of the value of the building resulting from the varia- tion. Schoefer, et al. v. Gildea, et al., 3 Colo. 15. 1324. To introduce a new term into a written contract, the evi- dence of the agreement of the parties to do so must be clear and dis- tinct, and that the contract was executed upon the faith of such collat- eral agreement. Railroad Co. v. Hodgens, 85 Penn. St. 501. 1325. When the payment of the purchase money is a condition precedent to the delivery of a deed of convej'ance, the refusal to pay the whole, or any balance due, leaves the vendor at liberty to rescind the contract. Where the vendor receives part of the purchase money r he must, before seeking relief in a court of equity against the vendee, return, or offer to return, the amount received, with interest. Where A. held title to reality in trust for B., and at B.'s request conveyed to- C., the payment of the purchase money being a condition precedent to- the delivery of the deed, and the deed having been delivered, without compliance with that condition, held, that on refusal of payment, B. had his election either to pursue his remedy at law against C.,and thu affirm the contract, or to rescind the contract, and seek equitable re- lief. Hamil v. Thompson, et al., 3 Colo. 518. 1326. A contract to answer for the debt of another must not only be in writing, but based upon a sufficient consideration. Langford v. Freeman, 60 Ind. 46. 1327. That in consideration of supplies furnished, defendant agreed that crop should belong to claimants ; that he would deliver it to them by October 15th, thereafter, or, in lieu thereof, pay them $500 ; that, on failure so to do, he should be considered liable for breach of trust, and they could either take possession of the crop or sue for that amount, with twelve per cent, interest, etc. ; that, in order to secure the fulfilment of the contract, defendant conveyed and de- 188 MONROE'S DIGEST livered to claimants certain personalty, which was, however, to remain in his possession ; that defendant waived homestead and exemption rights, was a mortgage, and did not convey a title. Lee v. Clark, Hosser & Co., 60 Ga. 639. 1328. Contract founded upon mutual and concurrent promises, af- ford sufficient legal consideration for the support of each other. Missi- quoi Bank v. Sabin, 48 Vt. 239. 1329. The defendant subscribed for shares in a patent right, to be held by him without payment therefor, otherwise than by inducing others to subscribe for shares and give their notes therefor for greatly more than the value of the shares ; the notes afterwards came into his hands by purchase, and were by him negotiated for money, and paid by the makers. Held, that these facts would not entitle the makers to maintain an action against him for money had and received. Lane v. Smith, 68 Me. 178. 1330. The maxim, that " the express mention of one thing implies the exclusion of another," is ordinarily used to control, limit, or re- strain the otherwise implied effect of an instrument, and not to u an- nex incidents to written contracts in matters with respect to which they are silent." Morrow v. Morgan, 48 Texas, 304. 1331. If a creditor receives a partial payment before any breach of contract, and agrees to look to another source than the promissor for payment, such new agreement is binding, and the original contract is abandoned or waived ; but if such agreement is made only to induce performance, and prevent a breach of the original contract, it is with- out consideration, and cannot be supported. When a valid contract subsists between the parties, it is competent for them, at any time be- fore its breach, to waive, annul or dissolve the agreement, or to change or modify its terms, and the mutual agreement of the parties is a suf- ficient consideration. Burkham v. Mastin, 54 Ala. 123. 1332. A contract not under seal, wherein one person makes a promise to another for the benefit of a third person, such third person may maintain an action on it, though the consideration did not move from him. Price v. Trusdell, 28 N. J. Eq. 200. 1333. In a contract for the transportation of freight, it was pro- vided " that in the event of either of the parties failing to comply with the terms of the contract, the party so failing was to pay the other party the sum of one thousand dollars, fixed and settled damages." Held, that this was not intended, nor to be construed as meaning a penal sum, but as fixed, settled and liquidated damages, and the de- fendant was not permitted to show that the plaintiff had not sustained actual damages to that amount. Ivinson & Co. v. Althorp, 1 Wyo- ming, S. Ct. Rpts. 71. 1334. Where property was sold and delivered to a third person, on the faith of the promise of defendants to accept his drafts on them for. the purchase money, a specific performance of the contract will be en- forced. Sauls bury, Reapers & Co. v. Blandys, 60 Ga. 646. 1335. Where at the execution of a writing a stipulation has been entered into, a condition annexed, or a promise made by word of mouth, upon the faith of which the writing has been executed, parol evidence is admissible, although it may vary and materially change the terms of the contract. In debt upon a bond the defendant offered to ^>rove that the bond was given for unpaid purchase monej r of a certain OF STANDARD DECISIONS. 189 lot; that to induce the purchase of said lot, plaintiff verbally agreed that if defendant did not like the property, plaintiff, on request of de- fendant, would take back the same, and pay defendant a premium and cost of his improvement; that there should be no personal liability by defendant for the purchase money, and that plaintiff should look solely to the property for payment ; that plaintiff was not to part with the bond or mortgage; that when defendant asked that the foregoing agreement should be inserted in the papers being executed, plaintiff" said it was unnecessary, that his bond was sufficient, and that defendant has asked plaintiff to take back the property as stipulated, which was refused. The court below rejected these offers. Held, that they should have been received. Greenawalt v. Kohne, 85 Penn. 369. 1336. In order to take a parol contract for the sale of land out of the operation of the statute of frauds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries and indicate the quantity of the land. It must- fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract, and at or immedi- ately after the time it was made, the fact that the change of possession was notorious, and the fact that it had been exclusive, continuous and maintained. And it must show performance or part performance by the vendee which could not be compensated in damages and such as would make rescission inequitable and just. Defendant in ejectment claimed title to land by virtue of a parol sale, possession taken and maintained, improvements, etc. A deed was offered in evidence, signed by plaintiff, which contained a description of the property, and recited the consideration, but which was never delivered to defendant. Held r reversing the court below, that the deed, taken in connection with, other facts, was sufficient evidence of a parol contract to take the case out of the operations of the Statute of Frauds. Hart v. Carroll, 85 Penn. St. 508. 1337. A court of equity will not extricate a party from the conse- quences of his own acts voluntarily committed to carry out an illegal contract relating to the entry of public lands. Generally, those who violate law in their dealings with one another, are left precisely in the same condition they placed themselves. Ainsworth v. Miller, 20 Kan- sas, 220. 1338. The reduction of an agreement to writing, signed by the parties, is not necessary to its perfection as a contract, unless it clearly appears that the parties intended that it should be complete as a con- tract, until so written and signed. Montague, et al. v. Weil Bro., 30 La, 50. 1339. A promise to pay for property purchased, " out of the pro- ceeds of the first cotton ginned," is evidence conducing to show the time of payment, but does not prove, or tend to prove, that the seller of the propert}' is to look for his pay alone to the profits made in gin- ning that season. White v. Chaffin, 32 Ark. 59. 1340. When an instrument is prepared by the party to be held liable under it, and it is ambiguous in its terms, that construction is ta be adopted which is most favorable to the promissee. Atlantic Ins. Co. v. Manning, 3 Colo. 224. 1341. An act which is forbidden by a statute, or the common law, 190 MONROE'S DIGEST whether it be malum in re or merely malum prohibitum, indictable, or only subject to a penalty or forfeiture, cannot be the foundation of a valid contract. Lindsey v. Rottaken, Collector, 32 Ark. 619. 1342. When one party submits a proposal for a contract to another, and the latter's acceptance of the proposal includes a material modifi- cation of the proposal, no contract will result until the modification has been acquiesced in by the party making the proposal. Nicholas, Gonnell v. Alexander Hill, 30 La. 251. 1343. Where two contracts between the same parties are distinct and to be performed at different times, the non-performance of the one is no defence to an action on the other. Turner v. Rogers, 121 Mass. 12. 1344. When it clearly appears from the evidence that the intent of parties was to form a written contract, neither party will be bound* until the contract has been reduced to writing, and signed by both. No alleged verbal agreement, in such case, can be invoked by either party against the other. Louisa Fredericks, Tutrix v. Robert Fasnacht, 30 La. 117. 1345. Where in a contract to deliver a certain thing, no time for the delivery is fixed, the legal implication is that it shall be delivered within a reasonable time from the date of the contract. Robert H. Bartley v. City of New Orleans, 30 La. 264. 1346. Where no fiduciary relation exists between the parties, and they are of legal capacity, however disadvantageous or improvident a contract between them appears, a court of equity will not relieve against it, until the party seeking to avoid it clearly proves that it was the result of fraud, mistake, surprise or undue influence practiced upon him. Malone v. Kelly, 54 Ala. 532. 1347. A contract must be held to have been made when the last act necessary to complete it was done, when no mutual act remains to be performed to entitle either party to enforce it. Northampton M. L. S. Ins. Co. v. Tattle, 40 N. J. Law Reports, 476. 1348. Contract founded on an act which a statute prohibits under & penalty is void, although the State does not expressly so provide, and the subsequent repeal of the statute, without any saving clause as to penalties already incurred, will not validate a contract void under the law in existence when the contract was made. Woods v. Arm- strong, 54 Ala. 150. 1349. Contract having an unlawful or immoral cause are not merely void themselves, but as a rule, cannot be the basis of any valid auxil- iary contract. Cummings v. Saux, 30 La. 207. 1350. Where the evidence shows that the parties intended, origi- nally, that the contract of lease should be reduced to writing, neither will be bound until it is signed by both. Miguel Avendano v. /. W. Arthur & Co., 30 La. 316. 1351. The written agreement of a debtor who has borrowed certain bonds, to return bonds of the same description, for the same amount, .at a certain term, is not a promissory note for the amount of the bonds. The obligations is to return the specific bonds at the time fixed, or pay their value at that time. Blonin v. Liquidators of Haft & Hebert, 30 La. 7 1 4. 1352. The laws which subsist at the time and place of making of OF STANDARD DECISIONS. 191 a contract, and where it is to be performed, enter into and form a part of the contract; and that, whether such laws affect its validity, con- struction, discharge or enforcement. Roberts' Adm'rs v. Cocke, Etc.; also, Murphy v. Gaskins 1 Adni'rs, 28 Grattan (Va.) 207. 1353. A contract is binding when signed by the party making it, though he may use an English translation of a French name, as Seam for Couture, in his signature thereto. Auger v. Conture, 68 Me. 427. 1354. One cannot recover for a breach of a contract who is the cause or occasion of its occurrence. Winch v. Mut. Benefit Ice Co., 86 N. Y. 618. 1355. A party entitled to rescind a contract on the ground of fraud loses tbat right by bringing an action to enforce the contract after knowledge of the fraud. Acer v. Hotchkiss, 97 N. Y. 395. 1356. A promise by one party to do that which he is already under a legal obligation to do is not a sufficient consideration to support a contract on the part of the other party. Seybolt v. N. Y. L. E. & W. R. R., 95 N. Y. 502. 1357. The word u sold " in a contract of sale of chattels does not necessarily impart an executed contract. Anderson v. Read, 106 N. Y. -333. 1358. Where a contract is partly printed and partly in writing, the written matter must prevail over the printed in case of conflict be- tween them. Hill v. Miller, 76 N. Y. 32. 1359. Reformation of contracts. The jurisdiction of a court of -equity to reform a written instrument, in a case free from fraud, can only be exercised where it appears clearly that there has been a mutual mistake on the part of the parties as to the contents of the instrument itself. Where both knew its character and contents when they exe- cuted it, it cannot be reformed merely because one of the parties was ^entitled to and would have exacted a different instrument had he known of extrinsic facts rendering it to his interest so to do. Whittemore v. Farrinqton, 76 N. Y. 452. 1360. A contract with persons contemplating the formation of a corporation in reference to matters relating to such corporation when it shall be formed is a contract with such persons personally and not with the corporation. Cannody v. Powers, (Mich.) 26 N. W. Rep. -801 ; Penn Match Co. v. Hapgood, (Mass.) 7 N. E. Rep. 22 ; Vermont Cent. R. R. v. Clayes, 21 Vt. 30 ; Dayton, Etc., Turnpike Co. v. Coy, 13 Ohio St. 84. 1361. A corporation may become bound to fulfil a contract made in its name and behalf in anticipation of its existence, by afterwards .accepting the benefits of the contract. Low v. Conn. & P. R. R. R., 45 N. H. 370. 1362. A party who signs a written contract without reading it or causing it to be read to him, where there is an opportunity afforded him of doing so is guilty of such negligence as will prevent him from -escaping the legal effect of the contract. Keller v. Orr, (Ind.) 7 N. E. Rep. 195 ; Gulliher v. Chicago R. I. & P. R. R. Co., (Iowa) 13 N. W. Rep. 429 ; Moran v. McLarty, 75 N. Y. 25 ; McKinney v. Merrick t could be sold or the money raised from any other source," is a promise to pay the money specified upon the occurrence of either of the events named in the paper, or after the lapse of a reasonable amount of time within which to procure, in one mode or in the other, the money neces- sary to meet the liability. Nunez v. Daniel, 19 Wall. U. S. 560. 136T. Where an action against a life insurance company brought by an administrator on a policy purporting to insure the life of the in- testate, one of the defences set up was that the answer of the latter to- certain questions propounded to him at the time of his application touching his habits of life, etc., were untrue, the burden of proving the truth of such answers does not rest on the plaintiff. Piedmont and Arlington Ins. Co. v. Ewing, Administrator, U. S. S. Ct. 92, 377. 1368. Where a party knowing the pecuniary condition of a debtor,, purchased a claim against him of an ascertained amount, an opinion, however erroneous, expressed by the seller as to the value of the claim,, does not affect the validity of the sale. Under such circumstances,, each party is presumed to rely upon his own judgment. Blease v. Garlington, U. S. S. Ct. 1, 92. 1369. Mandamus is not the proper remedy to enforce the per- formance of a duty imposed upon the officers of a private corporation organized for profit merely, where such duty is not specifically enjoined by law and where there is a plain and adequate remedy either at law or in equity. State, Ex rel. Freon v. Enterprise Carriage Co., 39 Ohio- State. Boone on Corporations. 1370. The capital stock of a corporation is the money or property put into the corporate fund by the subscribers for said stock which fund becomes the property of the corporation. A share of said capital stock is the right to partake according to the amount put into the fund of the surplus profits and upon dissolution of the corporation of the- fund remaining after payment of debts. A subscriber may become the owner of a given number of shares but not in the sense that he may take away those shares out of the corporate fund ; and the corporation has no power and cannot be compelled while continuing in legal ex- istence and carrying on the business for which it was created to issue and deliver such shares. All that the corporation can do is to issue* OF STANDARD DECISIONS. 193 written evidence of the existence and ownership of such shares known as stock certificates. Burrall v. Bush. R. R. Co., 75 N. Y. 211. 1371. Where two persons, for a consideration sufficient as between themselves, covenant to do some act, which, if done, would inci- dentally result in the benefit of a mere stranger, he has not a right to enforce the covenant, although one of the contracting parties might enforce it as against the other. L. 0. S. R. R. Go. \. Curtiss, 80 N. Y. 219. 1372. Where the holder of a promissory note, ostensibly acting for himself, sells the same for a valuable consideration, and upon the sale, promises orally that the note is good and will be paid at ma- turity, the promise is not within the statute of frauds, and the prom- issor is liable thereon in case of non-payment. The promise may be regarded, not as one to answer for the default of the maker, but as one to pay the purchaser for the money had, in case the maker does not. Milks v. Rich, 80 N. Y. 269. 1373. A party binding himself to deliver personal property can only be relieved in this respect on the ground of clear refusal of the other party to receive or becoming disabled to perform his part of the contract. Smooths Case, 15 Wall. U. S. 37. 1374. A party to whose duty it is to prepare a written contract according to a previous agreement, if he prepares one materially changing the terms of the previous agreement, and delivers it as in ac- cordance therewith, commits a fraud entitling the other to relief. Hay v. 8. F. Ins. Co., 77 N. Y. 235. 1375. Where the purpose of a promise to pay the debt of a third person is to secure a benefit to the promissor, by relieving his property from a lien, or securing or confirming his possession, the promise is original and not collateral, and so is not within the statute of frauds. Nettel v. Lightstone, 77 N. Y. 96. 1376. Where a party has elected to sue upon a written contract as it is, and has been defeated, he is bound by that election, and cannot thereafter bring an action to reform the contract. Steinbach v. Relief F. Ins. Co., 77 N. Y. 498. 1377. Equity will not readily set aside a reasonable contract, made for the sake of peace, though want of money may have been an inducing cause which one of the parties had to the making of it. French v. Shoe- maker, 14 Wall. U. S. 315. 1378. Where doubt exists as to the construction of an instrument prepared by one party, upon the faith of which the other party has in- curred obligations or parted with his property, that construction should be adopted which will be favorable to the latter. The principle applied. Noonan v. Bradley, 9 Wall. U. S. 395. 1379. While it is the province of the courts to construe contracts, yet where the meaning of a contract is obscure and depends upon facts aliunde, in connection with the written language, the question of con- struction may be one of fact for the jury. First Nat. Bank of Spring- field v. Dana, 79 N. Y. 108. 1380. Defendant was the editor of a newspaper owned by a cor- poration, a portion of the stock of which he held. W., who was plaintiff's president, owning a majority of its stock, was also a stock- holder in said corporation. Defendant was advised by the publisher 13 194 MONROE'S DIGEST of the paper, who had been to see W. and other stockholders, that they had concluded to levy an assessment upon the stock, and that they had agreed to furnish the money for his share upon pledge of his stock. It was represented to defendant that W. had paid his subscription to the stock in full, that there was to be an additional assessment upon all the stock, and that W. was to pay his share. The note in suit was thereupon made, and delivered to the publisher. W. had not paid his assessment, nor had he paid in full for his stock. At a subsequent meeting of the stockholders of the newspaper company it was agreed that defendant should withdraw from it and give up his stock, the stockholders agreeing to assume payment of the note ; and defendant thereupon surrendered his stock. Upon being advised that a claim was made against him, defendant wrote to plaintiff, stating the facts, and that if sued he would be obliged to sue the compan}' and its stock- holders. Plaintiff's cashier thereafter wrote defendant, proposing that if defendant would sue the newspaper company for the performance of the contract to pay the note, it would pay one-half the cost, adding that if the proposition suits it will avoid the necessity of a suit upon the note. An agreement was entered into upon the basis of this letter. Defendant brought an action against said company, obtained judg- ment, and upon return of execution unsatisfied, brought suit against the stockholders, which was pending when this action was commenced. The court directed a verdict for plaintiff; held, error ; that if the letter of plaintiff's cashier stood alone, it was a question whether the con- tract was not satisfied by bringing the action and obtaining the judg- ment against the company ; if all the letters were to be considered it was not clear that a suit against the stockholders was not a part of the arrangement ; and that this was a question for the jury. First Nat. Bank of Springfield v. Dana, 79 N. Y. 108. 1381. Plaintiff contracted to convey to H. certain premises for J$l,350; $300 was paid down and the balance was agreed to be paid in annual installments. H. assigned his contract to defendants in pay- ment of two notes, the latter agreeing to pay enough in addition to make the purchase price $300, H., however, reserving the right to re- deem. In an action brought to recover installments due and unpaid on the contract, H., as a witness for plaintiff, testified that defendants were to pay up the contract. Held,, that the evidence failed to show an express agreement on the part of defendants to pa} r the balance due plaintiff; that the most that could be claimed was that defendants .agreed to make advances for H., to be repaid when he redeemed ; that there was therefore no assumption of the debt, so as to make it the debt of defendants, at least no promise intended for the benefit of plaintiff; and that, therefore, plaintiff was not entitled to recover. Roe v. Barker, 82 N. Y. 431. 1382. After installments had become due, defendants requested plaintiff to give further time, which he did in consideration of an oral promise to pay the debt. Held, that this did not authorize the re- versal of a judgment for defendants, as no such cause of action was set forth in the complaint, and as the promise was void under the statute of frauds; and that, conceding it was supported by a sufficient con- sideration in the agreement for forbearance, it was not thereby made valid. Eoe v. Barker, 82 N. Y. 431. OF STANDARD DECISIONS. 195 1383. The law will not presume a contract illegal, or against pub- 5ic policy and so void, when it is capable of a construction which will make it lawful and valid. Ormes v. Dauchy, 82 N. Y. 443. 1384. To excuse non-performance of an express condition in a contract, it must appear that performance could not, by any means, have been accomplished. Wheeler v. Conn. Mut. L. Ins. Co., 82 N. Y. 543. 1385. In the advertisement for proposals for constructing a sewer in the city of New York a price was fixed to be allowed for rock ex- cavation, and the price so fixed was included in the contract, thus with- drawing the item from competition. Held, that this was not a com- pliance with the provision of the statute requiring the work to be let by contract, after advertisement, to the lowest bidder ; and that the contract and an assessment for the work was illegal and void. In re Manhat. Savings Institution, 82 N. Y. 142. 1386. A paper dated in one of the Southern States and promis- ing to pay with interest a sum of money specified and acknowledged to t>e due as soon as the crop can be sold or the money raised from any other source is not either in form or effect a promissory note. Nunez v. Dautel, 19 Wall. U. S. 560. 1387. Where, in part performance of an agreement, a party has Advanced money, or done an act, and then stops short and refuses to proceed to its conclusion, the other party being ready and willing to proceed and fulfil all his stipulations according to the contract, such first-named party will not be permitted to recover back what has been Advanced or done. Hausbrough v. Peck, 5 Wall. U. S. 497. 1388. Where a deed to A. though executed before a mortgage of the same property to B., is not delivered until after the execution and record of the mortgage, the mortgage will take precedence of it. Par- melee v. Simpson, 5 Wall. U. S. 81. 1389. The obligation of a contract, valid at the time of making by the laws of the State, or by judicial decisions upon the laws, cannot Jbe impaired by any decision of the courts of the State subsequently made. Chicago v. Sheldon, 9 Wall. 50 ; also, the City v. Lamson, 9 Wall. U. S. 478. 1390. Where a purchaser of real estate fails to comply with the contract under which he obtained possession, the vendor may treat the contract as rescinded, and regain the possession by ejectment. Burnett v. Caldwell, 9 Wall. U. S. 290. 1391. Where some parts of a contract are illegal while others are legal, the legal may be separated from the illegal, if there be no impu- tation of madum in re, and if the good part show a sufficient cause of action, it is error to sustain demurrer to the whole. Gelpcke v. City of Dubuque, 1 Wall. U. S. 221. 1392. When parties have reduced their contracts to writing, con- versations controlling or changing their specifications are, in the absence of proofs no more received in a court of equity than in a court of law. Willard v. Taylor, 9 Wall. U. S. 557. . 1393. Where on the sale of a steamboat whose owners had con- tracted various debts in building and furnishing her, some of which debts were liens on the boat and some not certain persons, friends of the purchaser, agreed to " defend and have the said vendor, free and 196 MONROE'S DIGEST harmless of any and all claims and demands that may arise or be brought against said steamboat," held, that the expression referred to debts existing at the date of the sale and not to debts that might be con- tracted after it ; and meant to protect the owner from all liability aris- ing from his part-ownership of the boat, irrespective of the fact whether the debts were liens on the boat or not. Moran, et al. v. Prather, 23 Wall. U. S. 492. 1394. In the matter of a' contract, a distinction sometimes exist between a motive which may induce entering into it and the actual con- sideration of the contract. This subject illustrated. Philpot v. Grunm$er, 14 Wall. U. S. 570. CONYERSION. 1395. In November, 1866, defendants, who were engaged in tow- ing boats upon the Hudson River, were employed by the master of a canal boat to tow the boat from Troy to New York. In January r 1867, the bill for towing not having been paid, it was placed by de- fendants' direction in the hands of a New York law firm for collec- tion by some proceeding against the boat. Said attorneys proceeded under the Act of 1862 (Chap. 482, Laws of 1862), providing " for the collection of demands against ships and vessels," which Act had not then been declared unconstitutional ; they caused the vessel to be seized and sold under the provisions of that act by the sheriff of Kings County, and a portion of the proceeds were paid to defendants. In an action brought by the owner of the boat to recover for its conversion, it was conceded that said Act was unconstitutional and the proceed- ings under it void. Held, that defendants were liable. Poucher v. Blanchard, 86 N. Y. 256. 1396. Where a promissory note, intrusted by the maker to another to be used for a special purpose, is diverted by the latter, an action lies against him for the conversion thereof. Hynes v. Patterson, 95 N, Y. 1. 1397. An attaching creditor cannot defend an action, brought by an assignee of the debtor, for the conversion of a chose in action at- tached, by showing fraud in the assignment. Castle v. Lewis, 78 N. Y. 131. 1398. An unauthorized sale by a broker of stock purchased by him for a customer, although a conversion, does not of itself constitute such a fraud as was contemplated by the provisions of the late Bank- rupt Act (U. S. Re. S., 5117), which declares that no debt created by the fraud of the bankrupt shall be discharged by proceedings in bank- ruptcy. Stratford v. Jones, 97 N. Y. 586. 1399. Nor does the insolvency of the broker, at the time of the conversion conclusively establish a fraudulent intent. Ibid. 1400. In an action brought by the defendants herein against S., plaintiff's assignor and others, an attachment against the property or the defendants was granted upon affidavits making a prima facie case, and upon a full compliance with all the formal requirements, on the ground that defendants were about to assign, dispose of and OF STANDARD DECISIONS. 197 secrete their property, with intent to defraud their creditors. The at- tachment was levied upon property of S. The defendants in the at- tachment suit thereupon moved on affidavits to vacate the writ ; the motion was denied at Special Term, but the General Term, on appeal, reversed the order of Special Term, and granted the motion. Pending the appeal, most of the attached property was sold as perishable, by order of the court. After the vacating of the attachment, the proceeds of the sale were paid over by the sheriff to the plaintiff' herein, to whom was also delivered the property unsold. Held, that the taking of the property was not a conversion : that the attachment having been law- fully issued, was a complete justification, both to the officer and the party, and it did not cease to be a protection after it was vacated for ^icts done under it ; also, that defendants, not having received either the property or its value, were not responsible therefor to plaintiff. Day v. Bach, 87 N. Y. 56. CONVEYANCES. 1401. A deed recorded after fifteen days is notice to purchasers, mortgagees and judgment creditors subsequent to such record. San- .born v. Adair, 29 N. J. 338. 1402. A deed not recorded in fifteen days is void as to a subse- quent deed for a valuable consideration, without notice, and cannot re- gain its priority by being placed on record before such subsequent deed recorded. Ibid. 1403. Such subsequent deed cannot lose its priority over the earlier deed by not being put on record, but is, in its turn, if not re- corded in fifteen days, subject to be postponed to a later deed, taken without notice for a valuable consideration. Ibid. 1404. If a grantee in a deed be a bona fide purchaser for a valu- able consideration, his or her title is unassailable, whatever ma.y have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud to invalidate the deed. Fraud cannot be presumed ; it must be proved by clear and satisfactory evidence. Herring, et al. v Wickham & Wife, 4t al, 29 Grattan, Va. 628. 1405. A voluntary conveyance is void as against creditors holding debts previously contracted. Russel, et al. v. Thatcher, et al., 1 Del. 320. 1406. A voluntary conveyance, though without a fraudulent in- tent, is void, as against creditors, under the statute of 13 Elizabeth. Logan, et al. v. Brick, et al., 2 Del. 206. 140*7. Withholding a deed from the records for several years may, as an element in the proof fraud, be explained so as to rebut any pre- sumption of fraud arising from it. Th.ouron v. Pearson, 29 N. J. 487. 1408. A voluntary conveyance of real estate made b}^ a husband, just before his marriage, to his mother, without any valuable consider- ation, and kept a secret until years after the marriage, is fraudulent and void as against the wife's claim of dower. 1409. Although a trustee may become a purchaser from a cestui 198 MONROE'S DIGEST que trust upon fair principles and proper consideration, yet where the transaction has no pecuniary consideration to uphold it, it is liable to the closest scrutiny due from courts in such transactions. 1410. To afford complete protection to the trustee who deals with a cestui que trust, such statement and information should be given by the trustee to the cestui que trust as to the extent and value of his in- terest in the estate, so that a court may see that the proposed dealing is fair, and that the act was entered upon with as much knowledge, on the part of the cestui que trust, as was possessed by the trustee in re- spect to the trust property. Pomeroy v. Pomeroy, 54 Howard, N. Y. 1411. . It seems the grantee, in a conveyance by deed-poll contain- ing a mortgage assumption clause, upon acceptance of the deed, be- comes bound as covenanter to pay the mortgage. Bowen v. Beck, 94 N. Y. 86. 1412. A specific devise of real estate can only be revoked by the destruction of the will or the execution of another will or codicil, or by alienation of the estate during the testator's life. Burriham \. Comfort, 108 N. Y. 535. 1413. While a conveyance will be so construed as to carry into ef- fect the intent of the parties, so far as it can be collected from the whole instrument, yet whatever the intention may be, nothing will pass by a deed except what is described therein. Thayer v. Finton r 108 N. Y. 394. 1414. Conveyance voluntary is void if it tends to hinder and de- lay creditors, although it may not otherwise injure them. A convey- ance being heM fraudulent and void as against creditors, certain mort- gages of the property conveyed, taken by the vendor by way of con- sideration, were nevertheless held good in the hands of an assignee for value without notice. Logan, et at. v. Brick, et al., 2 Del. 206. 1415. He who buys any part of the avails of a scheme to defraud creditors, in order to keep what he gets, must not only pay for it, but he must be innocent of any purpose to further the fraud. De Witt v. Van Sickle, 29 N. J. 209. 1416. Property conveyed in fraud of creditors will be reclaimed for the benefit of creditors, no matter who may happen to hold it, if rec- lamation can be effected without injustice to innocent third persons. De Witt v. Van Sickle, 29 N. J. 209. 1417. If the grantee of property conveyed in fraud of creditors dispose of it before proceedings are instituted to reach it, he will be held answerable for its value. Post v. Stiger, 29 N. J. 554. 1418. Conveyances by a solvent father to his two sons, in consid- eration of services rendered by them for man} r years, made openly, the deeds being recorded soon afterwards, and the sons remaining in con- tinuous possession thereafter, are good against creditors of the father. Horton v. Castner, 29 N. J. 536. 1419. A conveyance of the fee to a mortgagee will not merge his mortgage, where such intention on his part does not exist, and no- detriment to other encumbrancers shown. Andrus v. Vreeland, 29 N. J. 394. 1420. The registry of a conveyance of an equitable title is notice to a subsequent purchaser of the same interest or title from the same grantor, but is not notice to a purchaser of the legal title from th& OP STANDARD DECISIONS. 199 person who appears by the record to be the real owner. Tarbell v. West, 86 N. Y. 280. 1421. When land is by one deed conveyed to two or more persons, who contributed to the purchase money in unequal amounts, their share in the property will, in the absence of an agreement to the con- trary, be in proportion to their respective contributions. Shroser v. Isaacs, 28 N. J. Eq. 320. 1422. Where the grantor in a deed covenants that he was well seized, etc., and had good right to convey, etc., and then added that he " would warrant and defend the grantee, his heirs and assigns, against all and every person lawfully claiming, or to claim the whole, or any part of the premises, except against the United States." Held, that both covenants must be taken and construed together, and that the lat- ter restricted and qualified the first. Dunn v. Dunn, 3 Colo. 510. 1423. Insolvent debtor seeking to prefer certain creditors by mortgage, no ground for equitable relief. Heidingsf elder, et al. v. Slade & Etheridge, et al, 60 Ga. 396. 1424. From the mere fact that upon the sale of a piece of property belonging to the wife the husband received the price, it does not neces- sarily follow that a debt of the latter to the former was intended to be or was created. Hunt v. Spencer, 20 Kansas, 126. 1425. A voluntary convej'ance can be sustained, as against exist- ing creditors, only when under all the circumstances of the case the property retained by the grantor furnishes reasonable and adequate provisions for the discharge of his debts. Ibid. 1426. A contract for the conveyance of real estate, not in writing, is void by the statute of frauds. When a party to such contract has complied with its conditions, and made all the payments required by its terms, he is entitled to recover back such payments, in case the other party refuses to perform on his part. Nor will it defeat his right of recovery that he is in possession of the premises agreed to be con- veyed. Jettison v. Jordan, 68 Me. 373. 1421. Sale of all his landed estate by husband to wife, ifbonafide, coveys title ; aliter, if to hinder or defraud creditors, though subse- quently perfected by formal conveyance. Thompson v. Feagin, 60 Ga. 82. 1428. A party loses no right by a mere change in the form of his securities, and the holder of a new note, given in exchange for an old one, may attack a conveyance which would be fraudulent as to the old one. Thomson v. Herter, 55 Miss. 656. 1429. A voluntary conveyance from father to son, made by the grantor, with an intent to defraud his subsequent creditors, is void as to such creditors, with either allegation or proof that the grantee par- ticipated in that intent when he received or accepted the deed. In such case the intent of the grantor alone determines the validity of the conveyance. Langton v. Harder, 68 Me. 208. 200 MONROE'S DIGEST CORPORATIONS. 1430. If a corporation, in excess of its powers conferred by its charter, receives a sum of money on condition that it will return it, if an additional sum is not raised within a given time, and the condition is broken, an action may be maintained against the corporation on an implied promise to return the money, and a demand for its return may be submitted to arbitration. Mormlle v. American Tract Society, 123 Mass. 129. 1431. The superintendent of a mining company has no authority by virtue of his office to borrow money on the credit of the corpora- tion. The president of the corporation has no authority, as such, to undertake, in the corporate name, for the repa3 r ment of such an un- authorized loan. Union Gold Mining Co. v. Rocky Mt. Nat. Bank, 2 Colorado, 565. 1432. One for whom another has, without authority, assumed to act, must not only disavow and repudiate what has been done but must also give notice of such repudiation to those to be affected thereby, if he would avoid the inference of assent, which the jury are otherwise at liberty to indulge. Ibid. 1433. Where goods are sold, and credit given to a corporation, an officer and stockholder cannot be held personally liable for the debts thus created, upon a promise to pay or see them paid, unless such promise be in writing. Searight v. Payne, 2 Tenn. Eq. 175. 1434. If a certificate of shares in the capital stock of a corpora- tion is taken without the owner's knowledge, and, together with forged power of attorney, is delivered to an auctioneer for sale, to whom the corporation issues a new certificate in the name of the auctioneer, who delivers it to an innocent purchaser for value, to whom, in turn, on its presentation, the corporation issues a new certificate, the owner is en- titled, on a bill in equity against the corporation and purchaser, to a decree to compel the corporation to issue to him a certificate for his shares and to pay him the dividends thereon, but not to a decree against the purchaser ; and, upon such bill, the court cannot decide, unless by consent, whether the corporation is liable to the purchaser. Pratt v. Taunton Copper Co., 123 Mass. 110. 1435. An officer and stockholder of a corporation who states to a creditor that the corporation is, in his opinion, solvent, does not thereby make himself liable to the creditors, if the statement was made in good faith, although the corporation was, in fact, at that time insolvent. Searight v. Payne, 2 Tenn. Eq. 175. 1436. Corporation bonds, payable to bearer or order, and the cou- pons annexed thereto, are now recognized as possessing all the ordinary properties of negotiable instruments. Such bonds or coupons, although stolen, are collectible in the hands of a bona fide holder, who took them for value, in the usual course of business, before maturity and without notice. Spooner v. Holmes, 102 Mass. 503 ; Evertson v. Nat. Bank of Newport, 6 N. J. 14 ; Carpenter v Rommel, 5 Phila. Pa. 34. 1437. Where, under the act of 1869 (Chap. 907, Laws of 1869), authorizing municipal corporations to aid in the construction of rail- OF STANDARD DECISIONS. 201 roads, and prior to the passage of the amendatory act of 1871 (Chap. 925, Laws of 1871) proceedings had been regularly taken to bond a town in aid of a railroad, and the county judge had made his adjudica- tion and record and had appointed commissioners, held, that the pro- ceedings were not invalidated by said amendatory act, and that the commissioners had authority, after its passage, to subscribe for stock and issue bonds under and in pursuance of the judgment of the county judge. Syracuse Savings Bank v. T'n Seneca Falls, 86 N. Y. 317. 1438. The words, " knowing it to be false " in the provision of the Manufacturing Act ( 15, chap. 40, Laws of 1848), making officers of a corporation organized under it liable for signing a false report, mean & willful misrepresentation, with actual knowledge of its falsity, not merely such constructive knowledge as can be imputed from the pre- sumption that the officer signing knew the law and comprehended the precise import of the language used, when construed with reference to the statute. Pier v. Hanmore, 86 N. Y. 95. 1439. A railroad corporation seeking to take property in invitum for the purpose of its road, must be able to show, first a legislative warrant, and, second, if the right is challenged, that the particular scheme in which it is engaged is a railroad enterprise within the true meaning of that term, or that the business it is organized to carry on is public, and that the taking of private property for its purposes is a taking for public use. In re N. F. & W. R. Co., 108 N. Y. 375. 1440. A corporation, in the absence of statutory restrictions, has the right to prefer one creditor to another in the distribution of its property. Coats, Assignee, Etc. v. Donnell, et al., 94 N. Y. 168. 144L When under a charter provision, a stockholder is liable for the debts of the corporation to the amount of his stock, this liability arises out of contract ; and though the debt may accrue after the stock- holder's death, it is a claim against his estate, and an action lies against his executor. Manville v. Edgar, 8 Mo. App. 324. 1442. The president of a business corporation has no power, as such to constitute a general business manager without the consent of the directors. Vogel v. St. Louis Museum, Opera, and Fine Art Gallery, 8 Mo. App. 587. 1443. The franchise to be a corporation is not a subject of sale and transfer, unless made so by a statute, which provides a mode for exer- cising it. Memphis & Little Eock By. v. Railroad, Corn's, 112 U. S. 309; also, Morgan v. Louisiana, 93 U. S. 217 ; and Wilson v. Gaines, 103 U. S. 417. 1444. An innocent purchaser of stock, taken in good faith as paid up, in the absence of anything to put him upon inquiry, and where the books of the corporation would give no notice that the stock was not paid up, is not liable to the creditors of the corporation for the amount unpaid. Keystone Bridge Co. v. McCluney, 8 Mo. App. 496. 1445. A remedy given by the statutes of another State to creditors of a corporation against its stockholders is not available here. Chris- Jensen v. Eno, 106 N. Y. 97. 1446. Corporation issuing bills as currency without authority and contrary to law is not liable to the holder for money had and received, though bills are void, especially where the receiving as well as issuing is contrary to law. Thomas v. Richmond, 12 Wall. U. S. 349. 202 MONROE'S DIGEST 1447. Where the issue of bills as currency, except by banks, is prohibited, city has no power, without express authority, to issue them. Ibid. 1448. In the absence of proof showing a want of authority on the part of a corporation in making a contract or of a violation of its charter is ultra vires will not be upheld; every presumption is to the contrary. Reder Life Raft Go. v. Roach, 97 N. Y. 378. 1449. A corporation has no implied authority to increase or dimin- ish its capital stock, and can only do so when, and as authorized by statute. Sutherland v. Olcott, 95 N. Y. 93. 1450. Power to issue bonds carries with it power to cancel those already issued, but not put in circulation, and to issue new ones, and to make them payable beyond the limits of the county or state where they are issued. Lynde v. The County, 16 Wall. U. S. 6. 1451. If bonds issued by a city having power to borrow money and provide for payment of her debts, under an ordinance authorizing them for that purpose, are defective and void, city is liable as a bor- rower for the money received. Louisiana v. Wood, 102 U. S. 294. 1452. Where a stockholder of a manufacturing corporation, whose stock has not been fully paid in, in good faith makes an absolute and valid transfer of his stock to another, he is not liable for calls made after the transfer. Billings v. Robinson, 94 N. Y. 415. 1453. The unissued shares of stock of a corporation are not assets in its hands, and in the absence of any statutory provision, or provi- sion of its charter, one to whom shares have been transferred by it gratuitously does not, by accepting them, become a debtor to the com- pany or make himself liable to pay the nominal face of the shares as upon a subscription for the stock or a contract, and an action is not maintainable against him by a creditor of the corporation to compel him to pay for such shares. Christensen v. Eno, 106 N. Y. 97. 1454. So, also, where bonds of a corporation have been issued by it gratuitously to a stockholder, but no portion of its property or assets has been applied in payment thereof, the stockholder is not- liable to account to creditors for the proceeds of the sale of said bonds- by him. Christensen v. Eno, 106 N. Y. 97. 1455. Directors of a corporation have no power to increase the capital stock of a corporation when the charter authorizes it to be in- creased " at the pleasure of the corporation." Railway Company v. Allenton, 18 Wall. U. S. 233. 1456. The fact that the charter declares that " all the 'corporate- powers of the said corporation shall be vested in and exercised by a board " of directors does not alter the case. Ibid. 1457. Although a subscription for stock of a railroad company be duly authorized by the requisite number of the qualified voters of a township, if the company, before the subscription be actually made r becomes consolidated with another, thereby forming a third, the county court in Missouri is not empowered to subscribe, on behalf of the town- ship, for stock of the new company and issue bonds in payment there- for. Harshman v. Bates County, 92 U. S. 569. 1458. The capital stock, franchise, and all the real and personal property of a corporation, are justly liable to taxation; and a rule which ascertains the value of all this, by ascertaining the cash value OF STANDARD DECISIONS. 20& of the funded debt and of the shares of the capital stock as the basis of assessment, is probably as fair as any other. State Railroad Tax Cases, 92 U. S. 575. 1459. Deducting from this the assessed value of all the tangible real and person property, which is also taxed, leaves the real value of the capital stock and franchise subject to taxation as justly as any other mode, all modes being more or less imperfect. Ibid. 1460. Under the laws of Iowa, a railroad company, having power to issue its own bonds in order to make its road, may guarantee the bonds of cities and counties which have been lawfully issued, and are used as the means of accomplishing the same end. Railroad Com- pany v. Howard, 7 Wall. U. S. 392. 1461. The doctrine announced in Upton v. Fribilock, supra, that the original holders of the stock of a corporation are liable for the un- paid balance at the suit of its assignee in bankruptcy, without any express promise to pay reaffirmed. Webster v. Upton, Assignee, 91. 1462. The transfer of stock is liable for calls made after he has been accepted by the company as a stockholder, and his name regis- tered on the stock books as a corporation ; and, being thus liable, there is an implied promise that he will pay calls made upon such stock while he continues its owner. Ibid. 1463. A purchase of stock is of itself authority to the vendor to make a legal transfer thereof to the vendee on the books of the com- pany. Ibid. 1464. Stockholders in a corporation need not be individually made- parties in a creditor's suit where their interest is fully represented both by the railroad company and by a committee chosen and appointed by them. Railroad Co. v. Howard, 7 Wall. U. S. 392. 1465. Members of a corporation to whom a certificate of organiza- tion as a corporation has been issued by the secretary of the common- wealth in accordance with the statute of 1870, c. 224, are not liable as partners, by reason of having transacted business before the whole of the capital stock has been paid in, in violation of section 32 of that statute. First Nat. Bank of Salem v. Almy, 117 Mass. 476. 1466. A city council has no authority to grant to any person a mo- nopoly, even where no express prohibition is found in the charter or other act of the legislator. Davenport v. Kleinschmidt, 6 Mont. 502 ; Grampton v. Zabriskie, 101 IT. S. 601, 604, 609 ; Rice v. Smith, 9 Iowa, 576 ; Williams, et al. v. Pungy, et al., 25 Iowa, 436 ; Leudt v. Town of Sharon, 34 Conn. 108; People v. Mayor, 32 Bastour, N. Y. 35; Chris- topher v. Mayor, 13 Bashour, N. Y. 567 ; Mayor v. Gill, 31 Md. 375 ; Smith v. Appleton, 19 Wis. 493. 1467. A subscriber for certain shares of a corporation, by accept- ing the same and paying an assessment thereon, estops himself from denying the existence and validity of the contract of subscription. Inter Mountain Pub. Co. v. Jock, 5 Mont. 568 ; also, Philips' Academy v. Davis, 11 Mass. 113. 1468. An incorporated company in England had received an appli- cation from one Harris for shares of its stock on March 5th. On the 16th the company sent him notice that the shares had been allotted to him. The letter containing this notice was received by him on the 17th. But on the 16th, he had posted a letter withdrawing his appli- 204 MONROE'S DIGEST cation for shares. Upon appeal, it was held that the contract was re- garded as complete as soon as the company's letter, giving notice of the allotment, was committed to the post, addressed, as Harris had re- quested. Harris' Case, 7 L. R. Ch. 587. 1469. This principal of law has been affirmed in Pennsj'lvania, in Hamilton v. Lycoming Mut. Ins. Co. 5 Barr. 339 ; in Kentucky, Chiles Nelson, 7 Dana, 281 ; in Georgia, Levy v. Cohen, 4 Ga. 1 ; also, Bryant v. Booze, 55 Ga. 438 ; in New Jersey, Hallock v. Com. Ins. Co. 2 Butcher ; Wright v. Bigg, 21 E. L. and E. 591 ; Boston and Maine It. E. v. Bartlett, 3 Mass. Cush. 224. 1470. Directors of a company are not to be held personally liable to find cash for checks drawn by them as officers of their company upon the company's bank, and which the bank may choose to honor when the company has no funds at the bank. Beattie v. Ebury, plaintiff gave immediate notice to the defendant. No notice of dis- honor by non-acceptance is required by the law of Spain. Held, that the plaintiff was entitled to recover the amount of the bill. Home v, Rouquette, 3 Eng. Law. Rep., Queen's Bench Div. C. A. 514. 1662. Indorser of a promissory note after its maturity and his- liability on it has become fixed, joined with the maker of the note in a bond giving further time, at his request. Held, that he was surety on the bond and not a principal. Merriken v. Godwin, et al., 2 Del. 236. 1663. In an action against an indorser, who was a banker, plain- tiff's evidence was to the effect, that, prior to the maturity of the note r . plaintiff and defendant had some conversation in regard to extension of time, but no arrangement was made ; after the discharge of the de- fendant by failure of demand and notice, plaintiff and K., the maker,, went to defendant's bank to arrange an extension of time. K. asked plaintiff if he desired a new note. Plaintiff replied that if the parties agreed he would let the note stand; defendant said, "then I waive protest," and plaintiff thereupon agreed to an extension. Held, that the evidence was sufficient to authorize a finding that the defendant,, with knowledge, assented to continue his liability ; and that a non-suit was error. Ross v. Hurd, 71 N. Y. 14. 1664. In an action against an indorser,-^- Held, that the defendant had a right to set up in compensation against the holder all sums of money, which the holder had been paid, by, or in which he had become indebted to the maker since the protest of the note, and that the salary of a bank officer paid by quarterly instalments, ought in this way be set up against the bank by an accommodation indorser. The Quebec Bank v. Molson, 1 L. Canada, R. 116, 1851. 1665. The transfer of a note by indorsement carries with it the mortgage and frees the mortgage in the hands of a good faith holder, like the note, of any equities between the original parties. Updegraft v. Edwards, et al., 45 Iowa, 513. 1666. Waiver of demand and notice may be made by parol. Smith v. Lownsdale, 6 Oregon, 78. 1667. The indorsee cannot maintain suit against the indorser or assignor of paper not commercial, where the amount exceeds fifty dol- lars, without averring and proving suit against the maker to the first term, prosecuted to judgment and return of " no property," or some sufficient excuse for not having done so. All contracts for pa}' men t of money, except instruments governed by the commercial law, are subject in the hands of the assignee to all payments, discounts, and set-off made or had prior to notice of assignment, and to any defence which could have been made against the assignor or indorser. Cook v. Citizens* Mutual Ins. Co., 53 Ala. 37. 1668. A promise to pay, made after maturity, with knowledge that demand and notice of non-payment had not been made, removes the effect of any negligence in making demand or in giving notice. An indorser who has taken sufficient security to protect himself against possible loss waives his legal right to require proof of demand and notice. Smith v. Lownsdale, 6 Oregon, 78. 1669. Indorser of a promissory note is a competent witness to* OF STANDARD DECISIONS. 229 prove an agreement in writing made with its bolder at the time of his indorsement, that he shall not be held liable thereon, where the paper has not afterwards been put into circulation, but is held by the party to whom the indorsement was made. Davis \. Brown, 94 U. S. 423 ; Bank of United States v. Dunn, 6 Pet. 51, explained and qualified. 1670. Delay granted to the maker of a promissory note by the holder, without the knowledge of the indorser, does not discharge the latter. Mastsue v. Crebassa, 7 L. C. J. 211, S. C. ; 1961 C. C. Eng. 1671. If the indorser of a promissory note, after it falls clue, promises to pay the same, with a knowledge that the holder has failed to give notice of non-payment and make demand of payment, the promise dispenses with the necessity of demand and notice. A state- ment made by the indorser of a promissory note, after it falls due, to the holder, that he is responsible for the note, is in effect a promise to pay it. If the payee of a promissory note indorses it in blank, and delivers it to another, the note becomes payable to the transferee, not .as indorsee, but as bearer. The fact that the payee indorses a note in blank, and delivers it to a person who afterwards reassigns it to him without recourse, and that the payee then delivers it to another per- son, do not change the rule. Curtis v. Sprague, 51 Cal. 239. 1672. Whenever a negotiable promissory note is drawn up and is signed by the maker, and is then indorsed in blank, first by the payee And then by a third person, and the note is then delivered by the maker for a sufficient consideration to still another person, who thereby becomes the holder thereof, the presumption in such case should be, and is, that the payee and said third person intended to assume, and did assume, all the rights and privileges, as well as all the obligations and liabilities, usually assumed by indorsers of negotiable instruments. When a note is executed, indorsed and delivered in the foregoing man- ner, the indorser will be discharged unless due demand of payment is made, and due notice of non-payment given to the indorsers. Brad- ford v. Pauly, et a/., 18 Kansas, 216. 1673. A stranger who indorses negotiable paper at the time it is made, is prima facie liable to the payee as original promissor or as guarantor, as the payee may at any time elect. But it may be shown by parol evidence that he intended to bind himself only as guarantor, or even as second indorser ; and if so shown by such evidence, he can only be held bound according to the original understanding. Burton & Go. v. Hansford, et aZ., 10 West Va. 470. 1674. After a note under seal from Frow to Wilson was due, at the request of Frow, Wilson agreed to continue it, if Frow would give security. Belford agreed with Wilson to become surety, and there being no room at the bottom of the note to sign his name, Belford said it would do to sign on the back, and in signing thus, said to Wil- son, he understood he was " going on the note as security." Held, this was within the Statute of Frauds, and Belford was not liable. The indorsement, the testimony being parol, did not take it out of the statute. Indorsement in blank of notes not negotiable is not evidence of a written promise to pay under the statute. Wilson v. Martin, 74 Penn. St. 159. 1675. The omission to give an indorser notice of the non-payment of previous instalments, as they fell due on a promissory note does 230 MONROE'S DIGEST not effect his liability for a later instalment, of the non-payment of which he has been duly notified. Notice to the indorser of a promis- sory note of a demand made upon the maker for an instalment then due and for the interest due upon the note (some of the previous instal- ments and interest being still unpaid) and of his non-payment, is sufficient to charge the indorser, and is not invalidated by adding that the holder looks to him for the payment of the instalment and of the- interest due upon the note. In an action against the indorser of a, promissory note to recover an instalment due thereon, it appeared that when previous instalments had become due, of the non-payment of which the indorser had not been duly notified, the indorsee had ap- plied the proceeds of a mortgage, given by the maker to secure the payment of the note, to such instalments. Held, that the indorsee- had the right so to apply them. Fitchburg Mutual Fire Ins. Co. v. Davis, 121 Mass. 121. 1676. Where the maker of a promissory note furnishes to the second indorser money to pay the note, a trust is created in favor of the first indorser, as well as the holder, to have the fund applied in- payment of the note. Where two persons successively indorse a promissory note for the accommodation of the maker, and the maker furnishes to the second indorser at the time of his indorsement, with the means to pay the note, without the knowledge of the first indorser r the maker and second indorser have a right to subsequently agree that the means shall be applied to another purpose ; but if the second in- dorser promises the first that such means shall be applied to the pay- ment of the note, and thereby induce him to be inactive, which results to his injury, such promise creates an equity in favor of the first in- dorser which will sustain an action. Price v. Trusdell, 28 N. J. Eq. 20, 1677. The indorsee of a negotiable bill or note, in the absence of proof of fraud, is presumed to be a bona fide holder for value this- presumption is not repelled merely by proof that the paper as between the immediate parties was without consideration, and was rn/ide, in- dorsed or accepted by one for the sole accommodation of the other. Where, therefore, in an action by an indorsee before maturity against' the acceptors of a bill, the defence was that the acceptance was with- out consideration of the drawer, and that it was discounted by plain- tiffs for the drawer at a usurious rate of interest, held, that the burden was upon defendants to show the amount paid by plaintiffs for the bill, and in the absence of any evidence upon the subject, that plain- tiffs were entitled to recover. Harger v. Worrall, 69 N. Y. 370. 1678. Notice of dishonor to indorser, certificate of notary, in con- nection with his testimony that it is genuine, and that, though he has no recollection of the facts stated therein, he is satisfied of their truth, because he would not have certified them had he not been convinced of their truth at the time, admissible to establish, notice, mail used as means of conveying, and it is in evidence that notice did not in fact reach indorser, plaintiff must show that notices were properly directed, stamped, etc. Evidence that notary " served indorsers with notice " by depositing said notices in the post office, in the city of Atlanta, with no statement as to direction, payment of postage, etc., insufficient where indorsers testify that they did not receive notice. Allen & Co, v. Georgia National Bank, 60 Ga. 347. OF STANDARD DECISIONS. 231 1679. Agreements of indorsee with a stranger to give time to the acceptor does not discharge the maker. Frazer v. Jordan, XC. ii. 303 ; 8 C. & B. 303 (Eng. Com. Law.) 1680. That where a party who is a stranger to the note indorses the name before delivery, the law does not define the character of the contract or obligation created by such indorsement, and, therefore, parol evidence will be received to determine what the contract was whether that of a guarantor or maker and that the contract may not, because of its ambiguity, be defeated ; and whereas, in this case, the law defines the nature of the contract, and the manner in which the in- dorser may be held by proper legal steps, the court will not receive parol evidence to prove another and different contract from that defined bylaw. Ibid; also, Levering v. Washington, 3 Minn. 323; Kern y. Von Phul, 7 Minn. 426 ; First National Bank v. National Marine Bank, 20 Minn. 63. 1681. Where indorsee of a bill of exchange in sets alleges loss in transmission for acceptance, and demand for other sets from prior in- dorser not immediate as to him, and also alleges the non-deliver}- by said indorsee and consequent loss, he cannot recover. Such indorsee is bound to apply either to the drawer or his immediate indorser. Non constat that if he had applied to them there would have been a loss. Pinard v. Klockmann, CX. iii. 388 ; 3 B. & S. 388 (Eng. Com. Law.) 1682. An indorser of a promissory note, even though it be an ac- commodation note, is not one ; but is a principal debtor if the note be not paid and proper steps have been taken to fix his liability. Ross v. Jones, 22 Wallace, (U. S.) 576. 1683. To charge an indorser of a note as maker, it is necessary to show specifically that he put his name upon the back of the note before delivery to the payee. Best v. Hoppie, 3 Colo. 137. 1684. It being necessary for the payee to indorse the note in order to make it negotiable paper, he must be treated as first indorser with- out regard to the time of his indorsement or the locality of his name, on the note. A second indorser may maintain an action against the first for money paid on the note. Cogswell v. Hayden, 5 Oregon, 22. 1685. The indorser of a promissory note after it falls due, with a contract, and as additional security to prevent legal proceedings from being taken against the payee and indorser, is that of a grantor, and, even if based on a valid consideration, is fatally defective, unless the writing express the consideration. Crooks v. Tully, 50 Cal. 254. 1686. The guarantor of a promissory note is entitled to notice of non-payment. Ibid. 168*7. Indorsee sold a negotiable promissory note, and indorsed it without recourse. Held an implied warranty that the note was valid. Hannum v. Richardson, 48 Vt. 508. 1688. The indorser of a promissory note, though fixed in his lia- bility, by protest, is not entitled, as a creditor, to a share of the estate of the maker under an assignment for the benefit of creditors. Such an indorser is entitled only to be reimbursed payments actually made by him. The holder of the note can claim under the equity of the in- dorser, out of the assigned estate, only to the amount of payments so- made by the indorser. Farmer's Bank v. Gilpin, et al., 1 Del. Chan- cery, 409. 232 MONROE'S DIGEST i 1689. The names of the payees appeared on the back of a note in the usual position of the first indorser, about three inches from the left end, and that of the defendant in the opposite direction, about the same distance from the right end of the note, so that the latter with refer- ence to the former may be said to have been inverted. Held, that this irregular indorsement did riot relieve the defendant of liability, as he could have recourse against the payees. Arnofs Adm'r v. Symonds, 85 Penn. St. 99. 1690. Indorsement upon a note, to the effect that the maker may use the principal after maturity by the payment of interest semi- annually, does not release the maker from the obligation of payment. The Oskaloosa College v. Hickok, 46 Iowa, 237. 1691. Upon a failure of the maker to pa}' the interest according to the terms of the indorsement, the principal of the note became due and payable. The subsequent acceptance of interest would not entitle the maker to an extension of time of payment, the interest thus paid being merely a partial payment of the note. Ibid. 1692. A person of unsound mind who signs as surety a note given for an antecedent debt, cannot be held liable thereon even though the person taking the note had no knowledge that the surety's mind was unsound. Van Patton & Marks v. Beals & Hammer, 46 Iowa, 62. 1693. Complaint against two defendants as joint makers of promis- sory note, payable at any bank in Savannah, one of whom signed on the face and the other on the back, unnecessary, in order to charge the latter, to allege protest and notice. Hardy v. White, 60 Ga. 454. 1694. A party indorsed a negotiable note for $500, for the maker's accommodation. The maker then, by the use of chemicals, rendered the amount of the note invisible, wrote in a larger amount, and pro- cured the note to be discounted at a bank as a note for the larger amount. Before the note came due, the fraud was discovered, and the original writing was restored, and the note duly protested, and an ac- tion brought against the indorser, as on a note for the original amount. Held, that the indorser was not liable. Citizens Nat. Bank v. Rich- mond, 121 Mass. 110. 1695. Where a joint and several note, made by the three defend- ants to the order of plaintiff and another party, was by that party in- dorsed and transferred to the plaintiff. Held, that the plaintiff alone could bring suit on the note, and that the district court did not err in overruling a demurrer to plaintiff's petition, on the ground that " there was a defect of parties plaintiff." Began v. Jones, Wyoming S. C. Reps. 210. 1696. An indorser of a check given with his knowledge in pay- ment of a gambling debt, who pays the check to the holder upon non- payment by the drawee and protest, cannot recover therefor, from the drawer, or a prior indorser. A. having paid B.'s gambling debt, A. knowing it to be such debt, gives him no right of action against B. for the amount so paid. Scollans v. Flynn, 120 Mass. 271. 1697. The indorsee of a negotiable note, who takes it discharged of the equities to which it was subject in the hands of the payee, ac- quires the same right in a mortgage given to secure it, which the j>ayee would have had, if no equities had ever existed against the note. Linville v. Savage, 58 Mo. 248 ; Logan v. Smith, 62 Mo. 455. OF STANDARD DECISIONS. 233 1698. The transfer of a note received by mortgage carries the mortgage with it, unless the mortgage has been separately extinguished, as by a release for instance. Ibid. 1699. The indorser of a note will not be held bound by a fraudu- lent alteration made subsequently to his indorsement, unless through negligence; the instrument has been so loosely drawn as to easily ad- mit of alteration, and in a matter not calculated to place a man of ordinary prudence on the alert. But where no blank space was left unfilled, and the rate of interest was, after indorsement and without the knowledge of the indorser, inserted by interlineation in ink of a different color from that employed in the remainder of the note, it was held that the instrument upon its face bore such indications as should have excited suspicion and provoked inquiry ; and that under such circumstances the indorser was not bound. Capital Bank v. Arm- strong, 62 Mo. 59. 1700. The mere fact that the alteration of a note is not made fraudulently, nor for the purpose of changing its legal effect, will not change the rule as to the liability of a prior indorser. Ibid. 1701. The defendant in 1867 indorsed the notes of C. for his ac- commodation to the amount of $7,000, and continued to indorse for him to the same amount, for purposes of renewal or payment, till 1873. In 1869 the plaintiffs, a bank, discounted some of these notes to the amount of $5,000 for C., and continued a line of discount of the same amount and upon the same indorsements till 1873. At this time C., having received from the defendant his indorsement upon a note of $2,000, the note being in all respects complete, fraudulently altered the amount to $5,000, and procured its discount by the plaintiffs, who took it without suspicion, and with the proceeds C. took up his notes at the plaintiffs' bank for $5,000, upon $4,000 of which the defendant was in- dorser, the bank discounting the note for the purpose of applying the proceeds in that manner. C. had formerly been in the defendants' em- ployment, and had his entire confidence ; and the defendant had been in the habit of endorsing paper sent to him for that purpose by C., without making any entry of the transaction, and in several instances had indorsed notes in which the time of payment was left blank. Held, That the Court could not, from all these facts, infer an agency on the part of C. under which his act in altering the note would be binding upon the defendant. Aetna Bank v. Winchester, 43 Conn. 391. 1702. That the negotiation of the altered note to the plaintiffs did not render the defendant liable on his indorsement, as an act in the apparent exercise, and within the apparent scope, of an agency on the part of C. Ibid. 1703. That the principle that, where one of two innocent persons must suffer by a fraud, he who furnished the means for committing the fraud should bear the loss, had no application to the case, as the de- fendant, having delivered the note to C. complete, could not be re- garded as having furnished him the means of committing the fraud. Ibid. 1704. That the rule that holds an indorser liable, although the note is used in a different manner from that intended by him, did not apply, as in such cases the contract is still the genuine contract of the indorser. Ibid. 234 MONROE'S DIGEST 1705. That the defendant was not estopped by the facts from de- nying his liability upon the indorsement. Ibid. 1706. The plaintiffs indorsed a note at the request and for the ac- commodation of D., which had been made by another person for D.'s accommodation, and which was first indorsed by him. At this time there was an understanding among all the parties that D. was to get the note discounted at a certain bank. He, however, was not able to- accomplish this, and, without the knowledge of the plaintiffs, deposited it with the defendant as security for a loan of less amount, with an agreement that he might redeem it on paying the amount loaned, with certain agreed interest. In violation of this agreement the defendant sold the note to a bona fide holder for full value ; and D. and the maker being insolvent, the plaintiffs were compelled to pay it in an action brought by the plaintiffs for damages caused to them by the fraudulent conduct of the defendant in disposing of the note, in which it was found that he disposed of it to prevent D. from making a set-off" of a certain claim which he had against him, it was Held, (1) That the understanding between the plaintiffs and D., that he would get the note discounted at a certain bank, could not, so long as their indorse- ment was without condition, affect his right to dispose of the note in any other manner. (2) That the, defendant, having become the law- ful holder of the note, had the right, so far as the plaintiffs were con- cerned, to dispose of it upon an} r terms that he pleased. (3) That although in doing so he violated his agreement with D., and might therefore be liable to him in damages, yet the plaintiffs, having been subjected to no liability beyond that which they assumed in indorsing- the note namely, that of having the full amount of the note to pay,, if the maker or D. did not pay it, were not injured by his act. Dawson v. Goodyear, 43 Conn. 548. 1707. Where an indorsement of a negotiable bill purports to pass- the title thereto from the indorser, and to divest him of all beneficial interest therein, a consideration for the transfer is presumed, and the burden of proving want of consideration rests upon the party alleging it. Hook v. Pratt, 78 N. Y. 371. 1708. The restrictive indorsements which are held to negative the presumption of a consideration, are such as indicate that they are not intended to pass title, but merely to enable the indorsee to collect for the benefit of the indorser. An indorsement to one person for the benefit of another affords no such indication. Hook v. Pratt, 78 N. Y. 371. 1709. H., defendant's testator, drew a draft on the treasurer of the M. R. C. Co., payable to his own order. He indorsed it, " Pay to the. order of Mrs. Mary Hook, 35 King, for the benefit of her son Charlie.' r In an action upon the draft, held, that the indorsement imported a con- sideration, and its effect was simply to give notice of the interest of the beneficiary named. Hook v. Pratt, 78 N. Y. 371. OF STANDARD DECISIONS. 235- EVIDENCE. 1710. In an action to recover the amount of a check drawn by C. r plaintiffs assignor, to the order of defendant, and alleged to have been delivered to the latter to be used in purchasing a draft for the drawee r the defendant averred in his answer that the check was intended as a payment in part of a claim which C. " morally owed " the defendant r growing out of a fraud perpetrated by C. in inducing defendant to take a fraudulent note ; the alleged facts in reference thereto being set forth in the answer which also averred that defendant settled the claim with C. on his promise that he would at some time pay the loss. On the trial, after L., as a witness for plaintiff, had testified that the check was given to purchase a draft, deway of checks, notes or otherwise." Held r that the evidence offered was properly rejected ; that evidence of the details of the fraud could not legitimately tend to confirm defendant's- version. Canaday v. Krum, 83 N. Y. 67. 1711. On an issue as to whether certain promissory notes, dated on a particular day, were given for money lost at play and therefore void, it is not allowable to prove that the part}' giving them was intoxicated on the day of the date of the notes in suit, and that when intoxicated he had a propensity to game. Thompson v. Bowie, 4 Wall. U. S. 463. 1712. An accidental loss or disappearance in a bank of a bill sent to it to collect, from the bank's not taking sufficient care of letters brought to it from the mail, carries with it a presumption of negli- gence in the bank ; and on suit against it, the burden of proof is on the bank to explain the negligence. Chicopee Bank v. Philadelphia Bank r 9 Wall. U. S. 641. 1713. Statements either oral or written, made by the vendor after a sale, are incompetent evidence against purchaser. Clements v. Moore r 6 Wallace, U. S. 299 ; also, Thompson v. Bowman, 6 Wall. U. S. 316. 1714. Statements of a grantor of land made after he has conveyed the land to others are inadmissible to invalidate his previous deed of it. Steinbach v. Stewart, et al., 11 Wall. U. S. 567. 1715. The opinions of experts may not be received in evidence where the inquiry is as to a subject which does not require any peculiar habits or study in order to qualify a man to understand it. Ferguson v. Hubbell, 97 N. Y. 507. 1716. In an action upon a promissory note executed by the firm of H. & M. payable to their order and indorsed by them to K., M. de- fended on the ground that the note was executed without consideration, was diverted from the purpose for which it was intended and was trans- ferred by K. to the plaintiff as security for an individual indebtedness. Upon a second trial the direct examination of H., who was a witness upon the first trial, but who had since died, was read in evidence in be- half of M. Among the questions asked was what K. gave him for the note ; the answer was that K. gave nothing, " but I paid for the not& to " M. Plaintiff then offered ia evidence the cross-examination of H., wherein he testified that M. was indebted to him in the amount of the note on a private account for which the note was given. M. there- upon was offered as a witness in his own behalf to contradict the evi- dence of H. as to the consideration for the note. This was objected to- 236 MONROE'S DIGEST and excluded as incompetent under the Code of Civil Procedure ( 829). Held error; that the evidence offered was within the letter and spirit of the exception in the Code which permits such evidence to be given where the testimony of the deceased person, concerning the same transaction, has been given in evidence. Potts \. Mayer, 86 N. Y. 302. 1717. At the request of P., defendant's president, who was its gen- eral manager and financial agent, and in the frequent habit of borrow- ing money on its account, plaintiff raised moneys on his own credit which he delivered to P. as a loan to the corporation. In an action to recover for the moneys so loaned, held, that in the absence of evidence tending to show, or an offer to show, that plaintiff acted in bad faith, or had knowledge or information that P. did not intend to use the money in the business of the corporation, an offer to show that said money was not so used was properly excluded. Kraft v. F. P. & P. As^n, 87 N. Y. 628. 1718. Parol evidence is admissible to explain receipt. It is also admissible to explain a written contract, as a general rule. Pribble v. Kent, 10 Ind. 327. 1719. Memorandum-book, having alterations and erasures in amounts kept by a party himself, is not admissible in evidence. Doster v. Brown, 25 Ga. 153. 1720. Want of date in memorandum-book is no objection to its ad- mission in evidence to prove an account. The date of the account may be proved by other evidence. Ibid. 1721. W., as a witness for defendants, testified that he sold the bond in, question, and four others of the same description, to plaintiffs, :and upon cross-examination that he was owner of the bonds. Plain- tiffs produced, and were permitted to give in evidence, a memorandum, in the handwriting of W., showing that four of the bonds belonged to .another person, also a check given for the purchase-money, which was made payable to that person. Held, no error. Nicolay v. Unger, 80 N. Y. 54. 1722. The right of a partner to sign the firm name to a contract of indemnity in favor of third person must be strictly proved ; but it need not necessarily be proved in a written authority to him. Moran, 4t al. v. Prather, 23 Wall. U. S. 492. 1723. In a court of conscience deliberate concealment is equivalent to deliberate falsehood. When a living man speaks in such a court to enforce a dead man's contract with himself against parties who he knows are ignorant of the facts, he must be frank in his statements, unless he is willing to take the risk of presumptions against him. Crosby v. Buchanan, 23 Wall. II. S. 420. 1724. Entries in the defendant's own books, whose purport was to how that the transaction was on account of T., are not admissible. Mulhall v. Keenan, 18 Wallace, U. S. 342. 1725. The affidavit of assessors as to the obtaining the requisite consents to the issuing of town bonds only prima facie, not conclusive evidence of facts therein stated. Town of S. v. Teutonia S. Bank, 84 N. Y. 403. 1726. When entries in book of corporation competent against officers. First Nat. Bank v. Tisdale, (Mem.) 84 N. Y. 655. 1727. The Gr. M. Life Insurance Company loaned certain monej^s, OF STANDARD DECISIONS. 237 for which it received the individual notes of T., defendant's cashier; the checks for the amounts loaned were made payable to the order of" T., and the entries of the loans in the books of said company were as made to T. Held, that these were not conclusive that the loan was made to T. individually ; but that it was proper to show by oral evi- dence that the loan was made to defendant. Pierson v. At. Nat. Bank 77 N. Y. 304. 1728. A party to an action, by calling the opposite party as a witness, does not become bound by his testimony, but may dispute specific facts so testified to, although not permitted to impeach the character of the witness for truth. Cross v. Cross, 108 N. Y, 628. 1729. In an action upon a promissory note, the defence was, in sub- stance, that defendants purchased for plaintiff, and with her money, certain United States bonds ; that, she not desiring to be known as the purchaser, they were bought in a defendant's name, and left in their hands for safe keeping, the note being given as a means of insuring the delivery of the bonds when called for, or of obtaining a compensa- tion therefor if they were withheld ; and that the bonds were subse- quently delivered to plaintiff's husband, who was her authorized agent. Upon the trial one of the defendants was allowed to testify to conver- sations with plaintiff's husband, who was then deceased, in one of which he requested witness to go and purchase the bonds in his own name. No authority had then been shown in plaintiffs husband to act for her, and the evidence was objected to on that ground ; the authority was subsequently proved, and it appeared from the record that the trial court knew that this should be established before the declarations were competent. Held, that the objection was simply to the order of proof, which is always in the discretion of the court, and so was unten- able. Plainer v. Plainer, 78 N. Y. 90. 1730. In an action to recover moneys paid for a forged bond, al- leged to have been sold by defendants to plaintiffs, the defence was- that the bond was sold by W.,the owner, and was simply delivered by defendants, who held it, as security for a loan. A witness for defend- ants having testified to the transactions within his knowledge, wa& asked whether defendants' firm ever sold the bond to plaintiffs, this was objected to and excluded. Held, no error, as it called upon the witness to place a construction upon the facts, which was for the jury to do. Nicolay v. Unger, 80 N. Y. 54. 1731. The plaintiff's books of original entries are competent evi- dence of the items and the amount of the debt claimed, and he may show by other evidence the other facts which entitle him to recover. Noar v. Gill, 111 Penn. 488. 1732. To acquire the force of law a custom must have been estab- lished and become general so that a presumption of knowledge by the parties can be said to arise. Saint v. Smith, 41 Tenn. 51. 1733. After the receipt in evidence of written certificates signed by defendant and the payee, attached to other similar paper to the ef- fect that they were business paper, plaintiff was allowed to prove, under objection and exception, statements of the payee when transferring the paper to the same effect as the certificates. Held, that if erroneous, the error could have done no harm, as it was but a repetition, in a 238 MONROE'S DIGEST feebler way, of the declarations furnished by defendant to the payee to be used by him. Bayliss v. Cockcroft, 81 N. Y: 364. 1734. Plaintiff was allowed to testify, under objection and excep- tion, that he believed in the truth of a certificate required of and given by defendant to the effect that the note in suit was business paper, and that he had no intention to use it to evade the statute of usury. Held, no error. Bayliss v. Cockcroft, 81 N. Y. 364. 1735. The courts of this State will not take judicial notice of any laws of another State not according to the common law. Harris V. White, 81 N. Y. 534. 1736. The title of the assignee of a non-negotiable promissory note cannot be affected by declarations of the assignor, made after the assignment. Van Gelder v. Van Gelder, 81 N. Y. 625. EXECUTION. 1737. This action was upon a promissory note made by defendant W., and indorsed for his accommodation by defendant E. Judgment was entered against W. by default ; execution issued and delivered to the sheriff with directions not to act upon it or make any levy until further orders. During the life of the execution W. had in his open and visible possession personal property sufficient to satisfy it. When plaintiff directed a levy no property could be found. Held, that no lien was acquired upon the property of W. by the issuing of the ex- ecution ; that plaintiffs were under no obligation to E. to secure such a lien ; and that therefore the facts constituted no defence as to E. Smith v. Erwin, 77 N. Y. 466. , EXEMPTIONS. 1738. The members of a firm are neither severally nor jointly en- titled to partnership assets, exempted to heads of families under sec- tion 11 of the statute touching exemptions. State ex rel. Billingsley v. Spencer, 64 Mo. 355 ; Pond v. Kimball, 101 Mass. 105 ; In re Hand- lin, 3 Dill. 290 ; Bonsall v. Conley, 44 Penn. St. 447 ; Guptil v. Mo- Pee, 9 Kas. 30. The courts of New York, Wisconsin and North Oarolina hold otherwise. OF STANDARD DECISIONS. 239 FACTOR. 1739. Where a factor, in consideration of consignment made to him, makes advances or incurs liabilities for the owner or consignor, such owner cannot, by subsequent instructions, control the action of his factor. If the advances are made or the liabilities incurred on ac- count of the consignment, and before an assent to the directions of the owner in respect to the time of sale as the price, the factor has thereby acquired a special property, and may sell so much as will reinburse him. The owner has a general right to impose terms upon his factor; but that right is restricted if he has drawn against the consignment before the instructions are given, and he cannot control the factor as to time of sale or price unless he pays the factor for the advances made or liabilities incurred. Cotton v. Hiller, 52 Miss. 7. 1740. At common law, a factor has no power to pledge, whether he is intrusted with the possesssion of the goods, or with the bills of lading or other symbol of property. Allen v. St. Louis Bank, 120 U. S. 20. 1741. A usage of trade for banks to take pledges from factors, as security for the payment of the general balance of account between them, of goods known to be held by them as factors, is unlawful. Ibid. 1742. An unauthorized pledge by a factor, of goods owned by a partnership of which he is a member to secure the payment of his own debt to one who knows him as a factor only, is invalid against partner- ship. Ibid. 1743. Factor must keep books in which shall be correctly entered the transactions on account of his principal, and the latter is entitled to a correct copy of the entries, including all memoranda connected therewith. If the answer is ambiguous in this respect, an objection to it will be sustained. Keighler v. Savage Mfg Co., 12 Md. 383. 1744. If a factor, to whom the owner of goods has made a nego- tiable promissory note and consigned the goods under an agreement be- tween them that the proceeds of the goods when sold shall be applied to the payment of the note, indorses the note and pledges the goods to secure the payment of advances made to him by one who knows him to be a factor and to hold the goods as such, the pledgee is bound to apply the proceeds of the goods to the payment of the note, and the maker may set up this obligation in defence of an action by the pledgee on the note. Allen v. St. Louis Bank, 120 U. S. 20. 1745. As a general rule a factor cannot bind his principal by a disposition of his property out of the ordinar}' course of business nor can his disposal of the goods in violation of the order of his principal, even to repay advances, at least, until he has called upon his princi- pal for reimbursement. Commercial Bank v. Heilbronner, 108 N. Y. 439. 1746. Where a firm of commission merchants, which was insolvent, for the purpose of protecting its principals, opened a bank account in the name of the firm, with the word " agent " added, the bank having knowledge of such purpose, and deposited to the credit of that account the proceeds of sales of goods of a principal, and upon settle- 240 MONROE'S DIGEST ment gave to him a check for the balance belonging to him, held, that the bank had no right to charge against the account an individual debt of the firm, even with its consent. Baker v. Nat. Ex. Bank. 100 N. Y. 31. FAIR DEALING. 1747. When any transaction is equally susceptible of two ex^ planations, one of which is that it is fraudulent, and the other is con- sistent with good faith and fair dealing, that explanation will be pre- ferred which is consistent with good faith and fair dealing. Parol evidence is admissible for the purpose of showing that a deed absolute on its face was in fact intended as a mortgage. Hurford v. Harned, 6 Oregon, 362. 1748. Where a fiduciary relation is shown to exist the burden is upon the person taking securities or contracts enuring to his benefit r to show that the transaction is just and fair. Fisher v. Bishop, 108 N. Y. 25. 1749. The rule is not limited to cases of attorney and client, guardian and ward, trustee and cestui que trust, or other similar re- lations, but holds good wherever fiduciary relations exist, and there has been a confidence reposed which invests the person treated with an advantage, in treating with the person so confiding. Ibid. FALSE PRETENCES. 1750. An action of deceit will not lie upon false representations either as to what a patent-right cost the vendor ; or was sold for by him ; or as to offers made for it, or profits that could be derived from it ; or for any mere expressions of opinion of any kind about the prop- erty sold. Bishop v. Small, 63 Me. 12. Where the testimony does- not exhibit any want of ordinary care on the part of the plaintiff in an action of deceit, but the reverse, the jury may properly be instructed that it will not relieve the defendant from liability to come into court now, and say to the plaintiff, " If you had exercised more diligence and circumspection it would have frustrated my plan for deceiv- ing you, and therefore you cannot recover." Roberts v. Plaisted, 63 Me. 335. 1751. False representations made by one party to another to in- duce him to enter into a contract, will not avoid the contract, unless it is shown that the party complaining relied upon such representations, and was thereby misled and induced to make said contract. Dunning v. Gresson, 6 Oregon, 241. Where a member of a firm makes to a mercantile agency statements known by him to be false, as to the capital invested in the firm business, with the intent that the statements shall be communicated to persons interested in ascertaining the pecuniary responsibility of the firm, designing thus to procure credits and to defraud such persons ; and such statements are communicated OF STANDARD DECISIONS. 241 to one who in reliance thereon sells goods to the firm upon credit, an action for deceit is maintainable at the suit of the vendor against the partner making such false representations. Eaton C. & B. Co. v, Avery, 83 N. Y. 31. FINDINGS OF LAW AND FACT. 1752. No fact can be considered for purpose of reversing judgment entered on decision of court or report of referee, unless stated in findings or requested to be found on uncontroverted evidence. Thom- son v. Bank of British No. Am., 82 N. Y. 1. FIXTURES. 1753. A mortgage of a building covers an engine and boiler, a steam gauge, a water tank, a steam pump connected therewith, and the shafting therein, intended to permanently increase the value of the building for occupation ; but not machines which are incidental merely to the particular business carried on in the building at the time, al- though some of them are attached to the building by nails or bolts. McConnell v. Blood, 123 Mass. 47. 1754. Actual annexation to the realty or something appurtenant thereto, is the condition upon which property, ordinarily regarded as personal, become a fixture and part of the realty. The intention to make a chattel a part of the realty, is only important upon the ques- tion whether the owner intended to make the chattel so fixed a tem- porary or a permanent accession to the freehold. Having once been a part of the realty, a removal temporarily, without intent to sever per- manently, will not reconvert the chattel into personalty and destroy its character as a fixture. Williamson v. New Jersey fi. R. Co., 29 N. J. 311. 1755. Fixtures erected by a tenant on the demised premises for the purpose of carrying on his trade, being necessary to the enjoyment of the term are personal property during the continuance of the term. Kile, Sheriff v. Gielner, 114 Penn. 381. FOREIGN CORPORATIONS. 1756. Section 8 of the act of the Legislative Assembly of Oregon, entitled " An act to regulate and tax foreign insurance, banking, ex- press and exchange corporations or associations doing business in the State," approved October 21,1864, is an indirect prohibition against such corporations transacting business in the State until they shall have executed and recorded the power of attorney required by that section. A contract made by such corporation in this State before it 16 242 MONIIOE'S DIGEST shall have complied with the provisions of said section 8 is as to third parties void, and cannot be enforced by the corporation. Bank of British Columbia v. Page, 6 Oregon, 431. FORECLOSURE. 1757. A bill to foreclose a mortgage or deed of trust may be brought in the name of the real owner of the note secured. Hahn v. Huber, et al., 83 111. 243. 1758. Where the terms of a mortgage or deed of trust require be- fore any foreclosure or sale under it is made, sixty days' notice shall be given in certain newspapers ; a sale without the notice conveys no title. Bigler v. Waller, 14 Wall. U. S. 297. 1759. A purchaser upon, and in possession under, a foreclosure sale, void as against the owner of the equity of redemption, because he was not made a party to the foreclosure suit, does not stand in the position of mortgagee or assignee of the mortgage in possession, but as a stranger. Shriver v. Shriver, 86 N. Y. 575. 1760. In an action to foreclose a mortgage given to N., plaintiff's testator, to secure the payment of four promissory notes, dated No- vember 2, 1874, for a loan of $ti,000, " payable in three months from date, with interest," the defence was usury. It was proved on the part of the defendants, without contradiction, that in February, 1875, when the notes fell d^ue, N. demanded of the defendant's agent three months' interest at the rate of ten per cent, per annum, and stated that it was " due upon the notes." This was paid in compliance with the demand, and N. gave a receipt therefor, acknowledging the receipt of $150 for the three months' interest " due on the notes." Four successive quarterly payments were demanded and received thereafter at the same rate and receipted for as due upon the notes. In August, 1876, N. wrote to one of the defendants, stating that two quarterly payments of interest were due, and requested pa3*ment of $300 therefor. Held, that the demands and acquiescence therein amounted to an acknowledg- ment by both parties that the original securities were given under an agreement that they should bear interest at the rate often per cent. ; and that a refusal to find that the loan was usurious was error. Smith v. Hathorn, 88 N. Y. 211. 1761. In an action to foreclose a mortgage, commenced prior to the enactment of the code of Civil Procedure, a deficiency judgment was demanded against defendant B., to whom M., the mortgagor, had con- veyed, subsequent to the mortgage, by deed, containing a clause stat- ing that B. assumed and agreed to pay the mortgage. M. and B. both appeared and answered ; the latter alleged in her answer that she did not assume or agree to pay the mortgage ; that M., to whom she en- trusted the transfer, without her knowledge or consent, fraudulently caused said clause to be inserted ; that she accepted the deed, believing it had been drawn according to the prior agreement, and that she did not know that it contained the clause. She demanded that the deed be reformed by striking out the clause and the complaint dismissed as to Lar. Upon the trial, B. offered to prove the facts alleged in her OF STANDARD DECISIONS. 243 answer; this proof was objected to and excluded. Held error; that as the action was in equity, and M. a party, a complete determination of every question arising under said answer, in which plaintiff was inter- ested, could have been had ; that if it desired to have M. bound by the determination of the issues presented by said answer, it could have given him notice of B.'s defence, and ottered him the future manage- ment of the suit. (Code of Procedure, 122, 274 ; Code of Civil Procedure, 452, 1204.) Albany City Svgs. Inst. v. Burdipk, 87 N. Y. 40. 1762. The provision of the mechanics' Lien Law (Laws of 1863, chap. 500, 11), declaring that liens shall "in all cases" cease at the expiration of one year, unless continued by order of the court, refers to the lien on the premises ; it has no reference to a claim by the lienor for surplus moneys arising on sale of the land upon judgment in fore- closure, which cuts off the lien ; as, in such case, the claim of the lienor is reduced to a right to the avails. Em-Ind. Svgs. Bank v. Goldman, 75 N. Y. 127. 1763. H. R. conveyed certain premises to R., who conveyed them to the wife of the former; to secure a loan made to H. R. of $4,500 he and his wife executed their bond with a mortgage upon the premises ; subsequently she conveyed an undivided half of the premises to S., who conveyed it to H. R. The latter procured a loan of $8,000, for which he gave his individual bond, secured by mortgage upon the whole premises, executed by him and his wife. Of this sum sufficient was taken to discharge the prior mortgage; the interest upon which had been paid by H. R. until its discharge ; and he also paid the interest upon the new mortgage up to the time of his death. His wife never recognized the loan for which it was given as made for her benefit, but alwa3"S claimed it was to her husband, to be paid as between them out of his half of the premises. H. R. died leaving a will, by which his wife and W. were appointed executors, with power to sell real estate. Mrs. H. R. subsequently borrowed of M. $4,000, giving her bond, secured by mortgage upon her undivided half of the premises. Cer- tain judgments, also, were recovered against her, and executions were issued thereon, under which her half was sold to C. and S., who re- ceived the sheriffs deed; they also bid off the same on foreclosure of the mortgage so given by her. The executors of the will of H. R. con- veyed his undivided half to T. In a contest as to surplus moneys arising on sale under judgment of foreclosure of the $8,000 mortgage, held, that as the facts showed that the mortgage foreclosed was given to secure a debt of H. R., his wife, as to her undivided half of the premises, standing simply as a surety for him, as between them, his half was in equity primarily liable to pay the debt ; and she would have been entitled to any surplus to the extent of the value of her un- divided half; that under the mortgage executed by her, the mortgagee took the position and acquired the rights Mrs. H. R. had at the time she executed it, to which C. and S. by their purchase succeeded, and so were entitled to the surplus. Erie Co. Savings Bank v. Boop, 80 N. Y. 591. Also, held, that the rights so acquired by the mortgagee and by C. and S., were not affected by any acts or agreements on the part of Mrs. H. R. to which they did not assent. Erie Co. Savings Bank v. Hoop, 80 N. Y. 591. 244 MONROE'S DIGEST FORGERY. 1764. Where several persons are parties to a forgery, by means of which another is induced to pay mone}'s to one of them, who acts, in obtaining the money, in behalf of those engaged with him in the forger} 7 , an action for money had and received is maintainable against all ; it is not necessary to establish that each of the defendants received a share of the proceeds. Un. Tr. Co. v. Gleason, 77 N. Y. 400. 1765. A wife who merely aids her husband in the commission of the forgery, or an individual creditor ; nothing more than the debtor's interest in the property can in any event be liable. Atkins v. Saxton r 77 N. Y. 195. 1766. Equity will reform a contract where there is a mistake on one side and fraud on the other. Ibid. 1767. In an action to recover, as for moneys had and received r moneys obtained from plaintiff by one R. upon pledge of forged bonds r held, that evidence connecting one of the defendants with the forgery was not sufficient to make her liable in the absence of evidence of any agreement or understanding between her and the forger, that she was- to share in the proceeds of the forged paper, or was personally to have a benefit therefrom, or that R. was employed or acted as her agent, or that she actually received any part of the sum obtained. N. Y. Guar~ and Ind. Co. v. Gleason, 78 N. Y. 503. 1768. A forged certification on a check, when confirmed, verbally or otherwise, by an officer duly authorized to certify checks, is good against the bank whose officer confirmed such a forged certification and an action will lie to enforce its payment of the check. Continental Nat. Bank v. National Bank, 50 N. Y. 575. FORMER ADJUDICATION. 1769. It seems that it is only a final judgment upon the merits- which is competent as evidence and conclusive in a subsequent action between the same parties or their privies. Webb v. Buckelew, 82 N. Y, 555. 1770. Certain notes had been given by defendant to R., plaintiffs- assignor, which were usurious; a judgment for the full amount of the notes was entered, and the bond in suit was given, in pursuance of an agreement, made to evade the statute against usury, between R. and defendant, that the latter should allow such judgment to be entered r and should then give the bond in satisfaction thereof. Held, that the judgment was not a bar to the defence of usury. Moses v. McDivitt- 88 N. Y. 62. FRAUDS. 1771. The rule is universal, whatever fraud creates justice will destn>3 r . Where fraud is committed in the name of a corporation, by persons having the right to speak for it, for their personal benefit, they OF STANDARD DECISIONS. 245 will be made to answer personally for the injury inflicted by their fraud. Jewell v. Bowman, 29 N. J. 171. 1772. Fraud is never presumed, and to justify a court of equity in setting aside or in any manner interfering with a judgment on this ground the fraud must be clearly and conclusively established. The burden of proof is on the complainant to prove his case as it is alleged by the bill, and circumstances of mere suspicion will not warrant the -conclusion of fraud. Hill v. Reefsnider, et al., 46 Md. 555. 1773. D. & Co. sued B. upon the following agreement, signed by B. and others, but not under seal : " We, the undersigned, take pleas- ure in recommending S. to D. & Co. We also severally agree to be- come responsible for $350 to said D. & Co., to be forthcoming in thirty days after the final delivery of the work." Held, 1774. 1. That the consideration for this guaranty could not be collected, or implied with certainty from the instrument itself without recourse to parol proof, or to other papers unconnected with it save by such proof. 2. That parol testimony for the purpose of showing that the guaranty did refer to a contract between S. & D. & Co., and thus make out a consideration for it, was wholly inadmissible if objected to. Deutsche, et al., use of Kanders v. Bond, 46 Md. 164. 1775. A contract for the purchase of goods on credit, made with intent, on the part of the purchaser, not to pay for them, is fraudulent, and if the purchaser has no reasonable expectations of being able to pay, it is equivalent to an intention not to pay. But where the pur- chaser intends to pay, and has reasonable expectations of being able to do so, the contract is not fraudulent, although the purchaser knows himself to be insolvent, and does not disclose it to the vendor, who is ignorant of the fact. Talcott v. Henderson, 31 Ohio, 163. 1776. To defeat a sale it is not necessary to establish a fraudulent intent on the part of the purchaser, but it will be sufficient if it be shown that he knew of the fraudulent intent of the seller, or had notice of such facts as would have put a man of ordinary prudence upon an inquiry which would have led to a knowledge of the fraudulent pur- pose of the seller. A purchaser in good faith, who has paid a part of the purchase money, is entitled to the possession of the goods, notwith- standing he may subsequently discover that the vendor sold them with intent to defraud his creditors. Jones v. Hetherington, et al., 45 Iowa, 81. 1777. An action for fraudulent representations, as a general rule, cannot be maintained without proof that defendant believed, or had reason to believe, the representations to be untrue when made, and that they were made with fraudulent intent. Stilt v. Little, 18 Sickels, N. Y. 427. 1778. A balance due one of the assignors from an insolvent bank was omitted ; this was shown to be worthless. Held, that no inference of fraud could be drawn from the omission. Schultz v. Hoagland, 85 N. Y. 464. 1779. At the time of the execution of the assignment there was a balance standing to the credit of one of the assignors upon the books of another bank ; this was not included in the inventory. It appeared that the assignment was executed and filed on Saturday ; this balance was withdrawn the next Monday ; it did not appear by whom or in 246 MONROE'S DIGEST what manner. The inventory was subsequently made and was verU lied. Held, that the presumption was that the balance was drawn out on the check of the assignor, executed prior to the assignment ; also, that a failure of the assignor to explain the transaction did not author- ize the presumption that he was the owner of the balance at the time of the assignment ; that until proof was given sufficient to authorize a presumption of fraud, the assignors were not bound to explain. Schultz v. Hoagland, 85 N. Y. 464. 1780. To constitute a disposition of property by a debtor with in- tent to defraud his creditors, the thing disposed of must be of value,, out of which a creditor could have made a portion of his claim, it must have been transferred by the debtor and this with intent to de- fraud. Hoyt v. Godfrey, 88 N. Y. 669. 1781. A vendor of goods, the sale and delivery of which was in- duced by fraud on the part of the vendee, does not, by an effort to re- take the entire propertj r , which is successful in part only, lose the right to pursue the vendee for the value of the unfound portions ; nor is the effort a defence to an action to recover possession, against one in whose hands a part is found. Powers v. Benedict, 88 N. Y. 605. 1782. On the trial an indictment charging forgery of the notes of a bank of another state or country, it is not necessary to prove by direct evidence the due incorporation of the bank. People v. D'Argeneour,. 95 N. Y. 624. 1783. No legal duty rests upon a party to an action in whose favor a judgment has been rendered therein, to disclose a mistake made in his favor to his opponent ; and an agreement between him and an assignee of the judgment to keep silent as to the mistake, is not actionable fraud. Wood v. Amory, 105 N. Y. 278. 1784. If, at the time of the discovery of a fraud, the party injured has a legal capacity to act and to contract, his right of action accrues and the statute of limitations begins to run against it, irrespective of the degree of intelligence possessed by him, or his freedom from undue in- fluence, or his ability to resist it. Piper v. Hoard, 107 N. Y. 67. 1785. The mere fact that an assignment of property by a debtor was voluntary and without consideration is not sufficient to require a find- ing that it was fraudulent against creditors. Genesee Eiver Nat. Bank v. Mead, 92 N. Y. 637. 1786. Illegal acts prejudicial to rights of others are frauds on those rights, although the parties are innocent of any intention to com- mit a fraud. If the act is in effect a fraud upon the creditor, the mo- tive of the parties are of no consequence. Logan v. Logan, 22 Florida, 561. 1787. Whosoever receives property knowing it to be the subject of a trust and to have been transferred Toy the trustee in violation of his duty or power, takes it subject to the right, not only of the cestui que trust, but of the trustee to reclaim possession. Zimmerman \. Kinkle, 108 N. Y 282. 1788. An assignee for the benefit of creditors may attach a chattel mortgage executed by his assignor as fraudulent and void to creditors. Ball v. Slaften, 98 N. Y. 622. 1789. A mere fraudulent representation is not actionable per se. To recover, the plaintiff must not only show that the representations OF STANDARD DECISIONS. 247 were made, and that they were false and fraudulent, but he must also show, affirmatively, that he has been injured thereby, that he is, in some way, placed in a worse condition than he would have been had the words been true. Bartlett, et al. v. Blaine, 83 111. 25. 1790. Infancy is a bar to an action on a case of false and fraudu- lent representations by a vendor or pledgor as to his ownership of property sold or pledged. Doran v. Smith, 49 Rowell, Yt. 353. 1791. Material representations by a vendor of matters assumed by him to be within his personal knowledge, made with intent to deceive the vendee, which are untrue and are relied upon by the vendee in making the purchase to his damage, are, in a legal sense, false and fraudulent, although the vendor did not know them to be untrue. 1792. When a vendor, in the course of the negotiations for a sale^ authorizes an agent to make representations to the vendee as to the quality of the goods to be sold, and recommends the agent to the vendee as one whose statements are to be relied upon, such vendor is liable for false representations made by the agent. 1793. Although, upon a sale of property a warranty of quality is taken by the vendee, yet, if it appear that he was induced to make the purchase and to take the warranty in reliance upon representa- tions on the part of the vendor knowingly false and fraudulent, an action ex delicto may be maintained. Indianapolis, Peru & Chicago E. R. Co., Resps. v. Tyng, AppelL, 18 Sickels, N. Y. 653. 1794. A party can only commit a legal fraud in a business trans- action with another by fraudulent misrepresentations of fact, or by such conduct or artifice for a fraudulent purpose as will mislead the other party or throw him off his guard and cause him to omit inquiry or examination which he would otherwise make. Dambmann v. Schulting, 75 N. Y. 55. 1795. A division of copartnership property between the partners in proportion to their interests, for the purpose of protecting the property from seizure by the individual creditors of one of the partners, is not unlawful, and cannot be avoided as a fraud upon the individual creditors. By such a transaction the other partners do not acquire any of the property of the debtor, but only separate their own from his, so that their portion shall not be interfered with for his debts. Atkins v. Saxton, 77 N. Y. 195. But even if a fraud is perpe- trated, the whole property does not become liable to seizure upon at- tachment at the suit of a mechanic who is simply employed to execute some portion of the work and is paid for his services, having no con- cern with or interest in the fruits of the crime, is not liable in an act- tion ex contractu for money advanced upon the forged instrument. Un. Tr. Co. v. Gleason, 77 N. Y. 400. 1796. It is no defence to a suit for debt that the debt arose from the receipt of the bills of a bank that was chartered illegally and for fraudulent purpose, and that the bills were void in law, and finally proved worthless in fact ; the bills themselves having been actually current at the time the defendant received them, and they not having proved worthless in his hands, nor he being bound to take them back from persons to whom he had paid them away. Orchard v. Hughes, 1 Wall. U. S. 73. 1797. A sale of personal property, made much below its costs, by 248 MONROE'S DIGEST a man indebted to near or quite the extent of all be had, set aside as a fraud on creditors ; it having been made within a month after the property was bought, and before it was } r et paid for ; made, moreover, on Saturday, while the account of stock was taken on Sunday (the parties being Jews), and the property carried off early on Monday. Xempner v. Churchill, 9 Wall. U. S. 362. 1798. Where it appeared that the drawee of a bill of exchange promised to pay the amount by the time or upon a contingency named, and that the payee, relying upon this, permitted the bill to remain in the hands of the former, and no demand or request for its return, and a denial or evasion thereof was proved, held, that the promise to pay was void under the statute of frauds (2 R. S., 135, 2), as it was an oral promise to answer for the debt of another. Matteson v. Moulton, 79 N. "T. 628. 1799. Where fraud in the purchase or sale of property is in issue, evidence of other frauds of like character, committed by the same parties, at or near the same time, is admissible. Lincoln v. Claflin, 7 Wall. U. S. 132. 1800. Where two persons are engaged together in the further- ance of a common design to defraud others, the declarations of each re- lating to the enterprise are evidence against the other, though made in the latter's absence. Ibid. 1801. Equity will not allow the statutes of frauds to be set up where the contract has been largely performed on both sides. Swain v. Seamens, 9 Wall. TJ. S. 254. 1802. An indictment for obtaining money by false pretence, charg- ing that the money was obtained by both a pretence and a promise, is within the statute, if the pretence of a false existing, or a past fact be sufficient. Commonwealth v. Wallace, 114 Penn. 405; Commonwealth v. Adley, 1 Pearson (Penn.) 62 ; Commonwealth v. McCrosius, 2 Clart. thereby conveyed, so far as the same is security for said note of $l,000 r thereby secured," transfers the mortgage as security in the first place, for the payment of the whole of the note of $1,000, although the as- signment contains no covenant of warranty. Foley v. Rose, 123 Mass. 557. 2085. If one who holds, by an assignment duly recorded, a mort- gage and a note indorsed in blank, purporting on its face to be secured by it, " the same being collateral to " a certain note, assigns the mort- gage, and afterward indorses the note for which it was collateral, re- taining the mortgage note, to another, by an assignment in like words duly recorded, he conveys a title to the mortgage debt, except as against an innocent purchaser for value without notice ; and one, to whom he subsequently passes the mortgage note and fraudulently as- signs the mortgage upon a separate paper as collateral security for a loan, is not such a purchaser. Strong \. Jackson, 123 Mass. 60. 20 86. If a third mortgagee of land, which is subject also to a fourth mortgage, sells, under power of sale contained in his mortgage, the entire title in the land, with the assent of the prior mortgagees, for a sum sufficient to pay off all the four mortgages, the fourth mort- gagee can maintain an action against him for money had and received. Cook v Basley, 123 Mass. 396. 2087. A., for the purpose of enabling B. to raise money for him, made a promissory note payable to the order of B., and executed to him a mortgage of land, as security therefor, which was duly recorded. B., without A.'s knowledge or consent, and to secure his own debt, de- livered the note unindorsed to C., and afterwards assigned the mort- gage and a note, procured from A. by artifice, to D. for value. Held, that C. was not, in the absence of fraud on the part of D., entitled in equity to an assignment of the mortgage. Blunt v. Norris, 123 Mass. 55. 2088. A bona fide assignee of a mortgage is entitled to hold it as against the original owner, who, by placing it in her agent's hands as- signed in blank or for a particular purpose, gave him the opportunity to perpetrate a fraud upon her. Putnam v. Clark, 29 N. J. 412. 2089. The unauthorized cancellation of a mortgage by the re* corcler of mortgages cannot impair any rights of the owner of the mortgage. Mechanics' Building Association v. Ferguson, 29 La. 548. 2090. A lessee of land became the owner of an undivided por- tion of it, and executed a mortgage of this undivided portion, reciting that a part of the premises was subject to a lease, and that the leased premises were included in the description and in the mortgage. The mortgagee afterward entered to foreclose. Held, that, even if the lease passed by the mortgage, the lessee had the right of possession against all persons except the mortgagee, until the expiration of three years from the entry, and could maintain an action of tort, for a trespass within that time, against a third person. Martin v. Tobin, 123 Mass. 85. 2091. The mere fact that a mortgagee withholds a mortgage from record does not necessarity invalidate the mortgage as against creditors ; it may have effect against him after it is recorded, unless it is impeached for fraud, and in determining that question such with- holding from record must be considered. Black v. Euhlman, 40- Ohio, 196. 286 MONROE'S DIGEST 2092. Where a note and mortgage are once barred, a subsequent revivor of the note by a part payment, promise, or acknowledgment of the payer, will revive the mortgage so far as it affects the interests of the pay or in the mortgaged premises. But such revivor of the note will not revive the mortgage as against a grantee in the mortgaged premises prior to the revivor of the note. In case of a note and mort- gage, the latter being merely an incident to and security for the former, the mortgage is not barred until the note is. Schmucker, et y a mortgage on the same and other property. In September, 1874, F. paid to G. the amount then due on the note, and took an assign- ment without recourse. Held, that at the first E. was to be regarded fis the principal debtor, and that a payment by him to the payee of the note, prior to September, 1873, would have discharged both note and mortgage absolutely ; but that by the payment in September, 1873, from F. to H., the promise of the latter to pay the note, and the ob- taining of a year's extension of the time of payment, H. became in equity the principal debtor ; and that as all this took place before the note 288 MONROE'S DIGEST and mortgage to S., the latter's rights were in no way prejudiced ; and that F. by his subsequent payment to G., and the assignment of the note, was entitled to hold that note and mortgage as a valid and prior lien upon the mortgaged premises. Field v. Sherrill, 18 Kan- sas, 365. 2099. A third person cannot be affected by any notice of a mort- gage, except the notice conveyed to him by the inscription of the mortgage. All are third persons, except the parties. The inscription of a mortgage, after the lapse often years from the date of inscription,, unless reinscribed, is utterly void as to third persons, and is no longer any proof of the mortgage, even between the parties to it. Adams & Go. v. Daunts, 29 La. 315. 2100. Purchasers of non-negotiable demands from others than original owner of them can take only such rights as he has parted with except when by his acts he is estopped from asserting his original claim. He must in such cases, as Lord Thurlow said, " Abide by the case of the person from whom he buys." Cuts v. Guild, 57 N. Y. 229 ;. Ingraham v. Disborough, 47 N. Y. 421 ; Bush v. Lathrop, 22 N. Y. 535 ; Cowdrey v. Vandenburgh, 101 IT. S. 575. 2101. The rule that one who has purchased and received a con- veyance of a portion of mortgaged premises may require that all of the balance shall first be sold to satisfy the mortgage, before resort shall be had to his portion, applies, although part of the residue is situated in another State. Welling v. Eyerson, 94 N. Y. 98. 2102. The assignee of a mortgage is not affected by a collateral agreement between the mortgagor and mortgagee, made at the time of the execution of the mortgage, of which he had no notice, and in a suit upon the mortgage by the assignee said agreement cannot be set up as- a defence. Me Masters v. Willhelm, 85 Penn. St. 218. 2103. When a part}', who was indebted to another, executed a conveyance to secure the indebtedness, and received from the grantee an instrument, binding him to reconvey upon payment of the debt ; held, that the transaction constituted a mortgage, and that it was not competent for the grantor to insist upon a foreclosure thereof, but that he must pay the amount due before he could ask the cancellation of the conveyance. White v. Lucas, 46 Iowa, 319. 2104. A purchaser from a mortgagor may recover the land mort- gaged, in trespass to try title, against parties holding under a fore- closure sale, to which the plaintiff was not a party. Such foreclosure proceedings do not affect the right of a purchaser from a mortgagor prior to the suit for foreclosure, and not made a party to such suit. Morrow v. Morgan, 48 Texas, 304. 2105. In an action to recover upon certain promissory notes, and to foreclose a real estate mortgage given to secure the payment of the notes, where the judgment required the defendant to pay the debt and costs within one day after its rendition and on default thereof, the clerk is directed to issue a special execution to sell the real estate to satisfy the judgment; held, not erroneous because no more time is allowed. The debtor to raise and pay the money prior to the issuance of the special execution. Blandins, Adm'r v. Wade, 20 Kan- sas, 251. 2106. The clause in a mortgage, fixing the fees of the creditor'* OF STANDARD DECISIONS. 289 attorney of five per cent, in the event of the non-payment of the debt at its maturity, makes the debtor, on the happening of the event, ab- solutely liable for that amount; and this liability cannot be affected by the fact the creditor has not really paid, or obligated himself to- pa} 7 , that amount of attorney's fees. Henshaw v. Richards, 30 La. 398. 2107. A man may make a valid mortgage for the payment of money, without particularly describing the writing which may be evidence of the debt, or without even giving any independent written evidence thereof. But he is not at liberty to substitute a different con- dition, by parol evidence, for that which he expressed in his deed. A man may mortgage to an agent in order to procure credit from his principal, and the agent may enforce the mortgage as the trustee of his principal. Varney v. Hawes, 68 Me. 442. 2108. When a mortgagee has, upon demand, rendered a true account of the amount due upon the mortgage, a bill in equity to redeem can- not be maintained, unless the plaintiff first tender to the mortgagee the amount due, or is prevented from so doing through the fault of the mortgagee. Dinsmore v. Savage, 68 Me. 191. 2109. The same rule as to the necessity of registration, in order to give a priority of title, prevails between different assignees of a mortgage as between grantees under ordinary deeds. A mortgagee assigned the mortgage thus : " I hereby assign to the said (assignee) the within mortgage deed, the debt thereby secured, and all my right, title and interest in the premises therein described." Held, that this assignment, having been recorded, transfers the mortgage title as against a prior unrecorded deed of the same land by the mortgagee, unless it is shown that the assignee had actual notice of the prior deed. Wiley v. Williamson, 68 Me. 71. 2110. A mortgagee of real estate, before foreclosure of his lien, even when the mortgagor is insolvent, and the mortgaged premises in- sufficient to pay the mortgage debt, cannot maintain an action against one who has removed an engine and boiler from the mortgaged premises, and sold them, to recover the value of the property so taken and con- verted. Alexander v. Shonyo, 20 Kansas, 705. 2111. R. mortgaged to S. certain land, on which was a grist mill, and in which mill were certain fixtures. Afterwards R., for the pur- pose of defrauding S.. severed said mill fixtures from the mill, and sold and delivered them to K., who purchased and received the same for a like purpose. Held, that said mill fixtures belonged to R. until he sold them to K., and that they never became the property of S., and that neither S., nor any person claiming under him, can maintain replevin against K. for them. Vanderslice v. Knapp, 20 Kansas, 647. 2112. A mortgage of land to " Pinson, Dillard & Co." is not void for uncertainty, in not giving the surnames of some of the members of the firm, and in omitting the Christian names of all of them. And even if the title only vested, by the conveyance, in those whose sur- names were mentioned, the mortgage would enure to the benefit of all of the members of the firm, and they might all join in the suit to enforce it. A mortgage given for preexisting debt is not invalid for want of valuable consideration, as against a prior unrecorded mort- gage, where the time of payment of the debt is extended by a uote > 19 290 MONROE'S DIGEST taken four days before the execution of the mortgage, formed one transaction. Schumpert v. Dillard, Pinson & Co., 55 Miss. 348. 2113. When a mortgagor conveys real estate, and the conveyance contains a statement that the grantor will assume and pa}' the note which the mortgage is given to secure, and the grantee accepts the same, and enters into possession of the premises, he becomes directly and personally liable to the holder of the note and mortgage for the amount due. Fitzgerald v. Barker, 4 Mo. Court of Appeals (St. Louis) 105. 2114. Omitting to name the State, county, and township, in the de- scription of premises in a mortgage, will not invalidate the instrument, where other adequate elements of identification exist ; and it is not essential that the property should be so described as to identify it with- out the aid of extrinsic proofs, but it is always competent to connect the written description with the material subject matter by proof of the surrounding circumstances. Where there are descriptive signs satisfactorily ascertained which designate the thing meant to be granted, the addition of circumstances or accompaniments which are untrue, will not defeat the grant, but they will be rejected. Slater v. Breeze, 36 Mich. 77. 2115. A bill in equity alleged that A. purchased an estate with the plaintiff's money, and had it conveyed to his wife, who took it, with notice of the same ; that A. and his wife mortgaged the estate to B., who assigned the mortgage to C., both of whom had notice of the re- sulting trust to the plaintiff. A decree was made that C. assign the mortgage to the plaintiff. Held, that an assignment was unnecessary, and would impair the rights of the defendants among themselves; and that the mortgage should be discharged by a deed of release to the plaintiff, or by an entry upon the margin of the record of the mortgage in the registry of deeds. Harwood v. Pearson, 122 Mass. 425. 2116. The unauthorized cancellation of record of a mortgage by the clerk, or register, without the knowledge or consent of the mort- gagee, will not affect the rights of the latter under the mortgage, even as against a bona fide purchaser of the mortgaged premises, with notice of the mortgage, though he has no notice that the cancellation was unauthorized, and presumed, from the certificate of cancellation, that the lien of the mortgage was extinguished. A mortgage may be assigned by delivery merely. Harris v. Cook, 28 N. J. Eq. 345. 2117. The holder of two mortgages on the same parcel of land entered to foreclose the first mortgage, but did not enter under the second mortgage. A bill in equity was brought against him to re- deem the first mortgage, and in his answer he did not set up the second mortgage. A decree was entered that, on payment of a certain sum, he should release and discharge the mortgaged premises, described in the bill, from the mortgage therein described, and should deliver up possession of the premises. Held, on a subsequent bill in equity to obtain the discharge of the second mortgage, that he was not estopped to set up the second mortgage. Gerrish v. Black, 122 Mass. 76. 2118. Mortgage having been made to secure several negotiable notes, and the notes having been passed to several different holders, and one of the holders having obtained a general judgment, and another having foreclosed the mortgage in the name of the mortgagee for his OF STANDARD DECISIONS. 291 use, a sale of the premises under the general judgment passed the title free from the mortgage lien, the attorney representing the judgment of foreclosure having placed the execution founded thereon in the Lands of the officer of the law making the sale, and caused the title, unincumbered, to be sold, and there being no fraud in the sale, and the premises having brought full value, or an amount approximating thereto. The notes not covered by either judgment cannot be enforced against the land, but are thrown, in equity, upon the fund produced by the sale, for their pro rata share thereof. Smith, et al. v. Bourne, et al., Ga. 484. 2119. Under the Code ( 1955) a mortgage must ^clearly indicate the creation of a lien, and specify the debt to secure which it is given. A deed in fee simple, without condition or defeasance, and a bond for titles from the grantee to the grantor, in which bond the grantee obli- gates himself to convey the premises to the grantor on the payment of a sum of money, do not separately or together indicate the creation of a mere lien ; but the purpose indicated is to divert the grantor of title, and to vest title in the grantee until the payment of the debt. To take a bond for a future conveyance, and then deny that the maker thereof had any estate in the premises at the time he gave the bond, no fraud -or mistake being alleged, is idle and inconsistent. If a judgment creditor, whose judgment is junior to an absolute deed made to secure another creditor, can subject the land without redeeming, or offering to redeem, it is because the Registry laws have not been complied with, or else because the debtor having retained possession, the con- veyance is to be deemed fraudulent. Gibson v. Hough & Sons, 60 Ga. -588. 2120. A bill of sale whereby a debtor conveys personal property to his creditor as security, and which provides that the property shall remain in the debtor's possession, and he have thirty days to redeem by paying the debt, is a mortgage. Blodgett v. Blodgett, 48 Vt. 32. 2121. A mortgagor of personal property, after condition broken, has an equity of redemption that ma} r be asserted if he brings his bill to redeem within a reasonable time. Ibid. 2122. A tender of the amount of the debt after the law day has passed, unaccepted, does not divert the mortgagee of his legal right to the property mortgaged; and Chancery has jurisdiction to decree re- demption. Ibid. 2123. When the mortgagee disposes of the property, after tender made, and before final hearing, that an order for its delivery cannot be made, a decree ma}' be entered for the amount of the mortgagor's interest therein. Ibid. 2124. While it is not lawful for banking associations, established under the U. S. St. of 1864, c. 106, to purchase, hold and convey real es- tate, except in certain specified cases, among these exceptions are in- cluded such real estate " as shall be mortgaged to it in good faith by way of security for debts previously contracted ; such as shall be convej'ed to it in satisfaction of debts previously contracted in the course of its dealings; such as it shall purchase at sales under judgments, decrees, or mortgages held by such associations, or shall purchase to secure debts due to said association." Under the latter clause, it cannot be -deemed that the only authority given to such associations is to pur- MONROE S DIGEST chase only to the exact amount of the debts which may be owing to them, but they are entitled to purchase such real estate as may be necessary in order to secure the debts due to them, so long as the security of such debts is the real object of the purchase. By oral evi- dence it was proved that a bankrupt applied to th defendant for a loan of a certain sum to enable him, together with his own funds, to- take up the mortgage ; that the defendant lent him the sum requested (13,000), upon his verbal promise to assign the mortgage to him to secure the sum lent and certain notes then due ($911) to the defend- ant by the bankrupt. The claim that this was a loan of money upon real estate security, or a purchase of real estate, is not maintained,, when it is found, as a fact, that the inducement to this transaction was the agreement that the mortgage, and the real estate upon which it was secured, should be held for the antecedent debt due the bank. By the assignment in bankruptcy the assignee has succeeded to all the rights of the assignor, Emerson ; but his rights here are not superior to those of Emerson. He has come into a Court of Equity to seek its aid in obtaining those rights, and is, therefore, to do what Emerson would have been compelled to do. In order to obtain a decree for the redemption of the mortgage, he must perform the oral agreement that the debt of $911, due the bank, should be paid, as pay the balance of the $3,000, which is now due. Upton, Assignee, v. National Bank of South Reading, 120 Mass. 153. 2125. A. executed a mortgage of real estate, with a power of sale, to B., and subsequently conveyed the equitj^ of redemption to C. The mortgage provided that after the expiration of sixty days from the breach of any of the conditions named therein, the mortgagee, or those claiming under him, might sell the premises at public auction, " with- out further notice or demand, except giving notice " by advertisement for three successive weeks in a newspaper. Upon breach of condition for non-payment of interest, all the notices by advertisement were duly given, but did not state for what breach of condition the sale was made, and the sale took place as advertised. Before the sale, B, caused to be sent to A., by mail, a copy of the paper containing the advertisement, and A. knew that the interest on the mortgage was in arrears, was informed that it must be paid, and asked where C. was. No formal demand was made upon A. It appeared that A. knew from some source that there was to be a sale of the property, or some in- terest thei-ein, and, without making proper inquiry, carelessly, but honestly, assumed and believed that it was not to be a sale under the power contained in the mortgage made by him. A. made no effort to ascertain the facts, and did not attend the sale, at which the property was sold for less than its value. After the sale, A. offered to redeem the mortgage, and demanded an assignment thereof; was refused, and brought a bill in equity against B. and the pin-chaser, to redeem. Held, that the notices were not required to state for what breach of condition the sale was made ; that mere inadequacj 7 of price was not sufficient to invalidate the sale ; and that A. could not maintain his bill. King v. Bronson, 122 Mass. 122. 2126. A mortgagor of personal property has no such interest therein as can be levied upon and sold, and no lien can be obtained by the process of such levy. Gordon v. Hardin, 33 Iowa, 550, and Van. OF STANDARD DECISIONS. 293 Slycke v. Mills, 34 Iowa, 375, followed in McConnell v. Denham, 72 Iowa, 494. 2127. A tender of the amount due upon a mortgage after condi- tion broken does not discharge the mortgage. A mortgagor cannot maintain a writ of entry against a mortgagee in possession. Rowell v. Mitchell, 68 Me. 21. 2128. A mortgagor of real estate, or the owner of the equity of redemption, has to the day of sale to make payment and release the mortgaged premises from the lien and sale, and the provisions of law require printed notice of the time and place of sale to be given for at least thirty days before any sale can be had. Blandins, Adm'r v. Wade, 20 Kansas, 253. 2129. A mortgage is not invalidated by a misdescription made by a scrivener, where the premises may be identified by the admission of the parties themselves, by reference thereto in other deeds, and by an actual location thereof by the parties. Boon v. Pierpont, 28 N. J. Eq. 6. 2130. The deed of a married woman is not complete, so as to con- vey title to land, without the certificate of privj* acknowledgment prescribed by the statute; and its absence cannot be supplied by parol evidence. Looney v. Adamson, 48 Texas, 619. 2131. A mortgage containing a clause that the mortgagor shall Lave possession, without paying rent, of the mortgaged property un- til a fixed date, is not to be construed thereby to confer the right of possession thereafter to the mortgagee. Morrow v. Morgan, 48 Texas, 304. 2132. A mortgage, primarily without any consideration, given to secure certain negotiable notes in the hands of any future holder, be- comes a valid mortgage in favor of any innocent third person, who may acquire one of the notes before its maturity, and for value. JBillgery v. Ferguson, 30 La. 84. 2133. A mortgagee who transfers part of the mortgage debt to another, cannot compete with his transferee for the proceeds of the mortgaged property, where the amount is not sufficient to satisfy both. Baskdull v. Herwig & Smith, 30 La. 618. 2134. An assignee of a mortgage, given to secure the payment of a negotiable note, is held entitled to the same protection that he would have as assignee of the note without the mortgage. Dutton v. Ives, 5 Mich. 515 ; also, Helmer v. Krolick, 36 Mich. 371. 2135. A stipulation in a mortgage for the payment of reasonable attorney's fees, in case suit is commenced thereon is valid, and may be enforced in any action for the foreclosure of the mortgage. Danforth v. Charles, et al, 1 Bennett's Dakota Rpts. 285. 2136. A mortgage is binding between the parties to it, whether acknowledged or not. Lemay v. Williams, 32 Ark. 166. 2137. The registry of a judgment against a party will operate as a legal mortgage on all the immovables of that party situate within the parish wherein the judgment is registered, whether the deed to fluch immovables is recorded or not, and such mortgage is good against everybody that the judgment debtor's title to the immovables is good against. Logan v. Hebert, 30 La. 727. 2138. A mortgage, executed by a tenant in common, of an undi- 294 MONROE'S DIGEST vided interest in a specified parcel of land is invalid as against bis co- tenants. Marks v. Sewall, 120 Mass. 174. 2139. Mortgage given to secure the payment of a preexisting debt, the mortgagee cannot claim protection against older equities as- a bonafide purchaser for a valuable consideration. Alexander v. Gold- well^ 55 Ala. 517. 2140. The statute grants no power to an administrator to borrow money upon a mortgage of the real estate of the decedent. Sucli an act is foreign to the policy and purposes of administration, which aims- to close up, not to continue an estate. Such mortgage is without legal authority, and void ; and in the absence of fraud, misrepresenta- tion, or mistake, the heirs are not estopped to plead its invalidity by reason of the benefit resulting to them by means of the mortgage. Black v. DresselVs Heirs, 20 Kansas, 153. 2141. Where a mortgagee of chattels, in the absence of an agree- ment in the mortgage, purchases the property at a mortgage sale, and appropriates it to his own use, he becomes liable for the actual value thereof at the time of the sale, without reference to the amount bid. Webber v. Emmerson, 3 Colo. 248. 2142. A mortgagor of real estate has the right to the possession of the mortgaged property, and to sever and remove timber, wood r sand, earth, coal, stone, or anything else, therefrom, and to sell the same, unless it unreasonably impairs the mortgage security. When it impairs the mortgage security, the remedy of the mortgagee is not at law, but in equity ; not replevin to recover the property severed from the realty, but generally injunction, to restrain the commission of waste upon the reality. Vanderslice v. Knapp, 20 Kansas, 647. 2143. An unrecorded mortgage valid as against heirs of mort- gagor. A scire facias will lie on an unrecorded mortgage. A. P. Laughlin v. Ihmsen, 85 Penn. St. 364. 2144. Where the superintendent of the insurance department has accepted from an insurance company an assignment of a mortgage as a part of the deposit to be made with him, under the requirements of the insurance law, on the faith of a representation on the part of the mortgagor that there is no legal or equitable defence to the same, he can avail himself of the doctrine of estoppel prohibiting a debtor, upon the faith of whose statements an assignment of his obligation has been accepted, from disputing such statements. Smyth v. Munroe, 84 N. Y. 357. 2145. When assignment of mortgage is accepted upon faith of statement by mortgagor that there is no legal or equitable defence, he and those deriving title under him estopped from proving agreement Between him and mortgagee for release of portion of mortgaged prem- ises. Smyth v. K. L. Ins. Co., 84 N. Y. 589. 2146. In a suit in equity for redeeming unoccupied and uninclosed city lots from a mortgage, the mortgagee in constructive possession is chargeable only with the amount actually received by him for use and occupation. Peugh v. Davis, 113 U. S. 542. 2147. Defendant D. executed to plaintiff an assignment under seal of a bond and mortgage, which contained a guaranty of payment of the amount secured in case of the failure of the mortgagors to pay. In an action to foreclose the mortgage, D. was sought to be charged. OF STANDARD DECISIONS. 295 with any deficiency. He alleged and offered to prove that at the time of the execution of the assignment, plaintiff, in consideration of being permitted to retain $300 out of the purchase-money and of the as- signment to him of a policy of insurance upon a building on the prem- ises, agreed by parol to keep the building insured until the mortgage became due, that she did not do this, and that the building was de- stroyed by fire. The evidence was objected to and excluded. Held, error ; also, that the fact that the breach of this parol agreement was ( not in terms set up as a counterclaim was not available here, as the facts were alleged, and no objection to the proof offered was made upon the ground that the pleading was defective. Van Brunt v. Day, 81 N. Y. 2511 2148. To entitle a mortgagor to maintain an action to extinguish the lien of his mortgage because of a tender of the amount due and a refusal to accept, the tender must be kept good. Tuthill v. Morris. 81 N. Y. 95. 2149. The rule that a party coming into a court of equity for af- firmative relief must himself do equity, requires, in such case, that the mortgagor pay the debt secured by the mortgage, with costs, in any foreclosure proceedings, and the interest at least up to the time of the tender. Tuthill v. Morris, 81 N. Y. 95. 2150. The most that can equitably be claimed by the mortgagor is relief from the payment of interest and costs, subsequent to the tender, to entitle him to this he must keep the tender good from the time it was made. Tuthill v. Morris, 81 N. Y. 95. 2151. Mortgage when held as security for the payment of nego- tiable paper, to defence to which the notes in their hands would not equally be open. Carpenter v. Longan, 16 Wall. U. S. 271. 2152. Defendant and one O'D. entered into a contract for the pur- chase by the former, and sale by the latter, of certain premises. De- fendant agreed to pay a portion of the purchase-price by the assign- ment of a mortgage which he covenanted should be a valid and sub- sisting first lien ; the property covered by it to be of the value of $4,- 000. O'D. conveyed the premises and defendant assigned the mortgage ; the assignment contained a guaranty that the mortgage was a valid and subsisting lien, but contained no covenant as to the value of the mortgaged premises or as to the priority of the lien. Held, that the acceptance of the assignment was not a satisfaction or extinguishment of the covenant as to value in the agreement ; and that an action was maintainable for a breach thereof. Smith v. Holbrook, 82 N. Y. 562. 2153. In an action against an assignor of a note and mortgage given to secure its payment upon a covenant as to value of the mortgage, held, that the covenant having been given to indemnify against loss on the mortgage,' defendant was entitled to have the value of the note allowed in diminution of damages ; but that its value at the time of the trial could only be considered, not the value at the time of the as- signment ; and, as it was admitted on the trial that the makers of the note had become insolvent and had been adjudicated bankrupts, that a charge of the court as follows was proper, to wit : " that it was un- important as to whether the makers were or were not solvent at the time of the assignment but that the only inquiry on the question of damages was whether the mortgaged property was at that time worth 296 MONROE'S DIGEST less, and liow much less than $4,000." Smith v. Holbrook, 82 N. Y. 562. 2154. Where mortgaged property is sold under a power, the ab- sence of objection on the part of the mortgagor to the sale as made cures any defect which exists therein, and gives it validity. Markley, etal. v. Langley, et aL, 92 U. S. 142. 2155. Where the mortgagees are expressly authorized to sell for cash or on credit, they may do either, or combine them in the sale ; nor is a sale for part in cash and part on credit under a power requiring it tc^ be made for cash invalid, if the departure from the terms of the power is beneficial to the mortgagor. It is immaterial whether such arrange- ment for payment is made before or after the sale. Ibid. 2156. To redeem property which has been sold under a mortgage, as is alleged, irregularly, the whole mortgage-money must be tendered, or if suit be brought, be paid into court. Collins v. Biggs, 14 Wall. U. S. 491. 2157. Mortgage when held as security for the payment of negoti- able paper is open as against bona fide holders of the paper for valid, defence to which the notes in their hands would not equally be open. Carpenter v. Longon, 16 Wallace, 271; also, Kenicott v. The Super- visors, 16 Wall. 452. 2158. A mortgage on real estate is only personal property, and under the Revenue Laws of Montana (Codified Laws of 1871-2), can only be assessed in the county where found. The record of such mortgage in the recorder's office of a county, being only a copy of the original, is not taxable personal property. Gallatin County v. Beattie, 3 Montana, 173; cited Mack v. Wetzlar,^ Cal. 217; also, 4 Kent's Com. 174. 2159. Although an inst'rurnent which purports to mortgage a crop the seed of which has not yet been sown, cannot at the time operate as a mortgage of the crop, yet when the seed of the crop intended to be mortgaged has been sown and the crop grows, a lien attaches. Butt v. Ellett, 19 Wallace, U. S. 544. 2160. A mortgage was executed to M. and S., who were copart- ners, doing business under the firm name of M. & Co. It was ex- pressed in the condition of the mortgage that it was intended among other things, " as a continuing security and indemnity " to the mort- gagees " for and against all liabilities they then had incurred or might thereafter incur as indorsers, acceptors or sureties in any form " for J. B., one of the mortgagors, or the firm of J. B. & Co. Held, that the mortgage included not merely such liabilities as were incurred by the mortgagees jointly as copartners ; but such as were incurred by either of them, separately and individually. Nat. Bank v. Bigler, 83 N. Y. 51. 2161. After the delivery of the mortgage M. died ; by the articles of copartnership it was stipulated that in case of the death of one of the partners, the survivor should continue to carry on the business for the benefit of both parties, for a time specified after such death. Held, that the authority thus conferred, if valid and operative (as to which qnoere), did not authorize the survivor to bind the estate of the de- ceased by new accommodation indorsements, nor did it permit and make valid an indorsement of the firm executed by the survivor as a OF STANDARD DECISIONS. 297 renewal of an indorsement made in the lifetime of the deceased and with his assent. Nat. Bank v. Bigler, 83 N. Y. 51. 2162. At the time of the death of M. plaintiff held the paper of J. 13. & Co., indorsed by M. & Co. to a large amount. Upon the request of B. & Co. and with the concurrence of S. and the assent of the executors of M., an arrangement was made to the effect that the mortgage should be assigned to plaintiff, that the paper held by the latter should be protested at maturity, and as each note matured, J. B. & Co. should make a new note for the same amount, to be in- dorsed by S. and discounted by plaintiff', the proceeds to be credited to S., and therewith he was then to take up the old note and pledge it to plaintiff as security for the new one ; it being the intention of the parties, as the court found, that the paper so held at the death of M. was not to be paid or extinguished, but kept alive against all the parties. This arrangement was carried out. Held, that it did not operate as a payment of the notes secured by the mortgage ; that no presumption of payment arose from the taking of the renewal notes; also that the assignment transferred to plaintiff the right to enforce the mortgage security. Nat. Bank v. Bigler, 83 N. Y. 51. 2163. It seems, that plaintiff, had there been no agreement, would have been equitably entitled to an assignment of the mortgage. Nat. Bank v. Bigler, 83 N. Y. 51. 2164. Also, held, that the mortgage was not one of indemnity merely, but was a security as well, against all liabilities, and that, therefore, it was not essential to a recovery to show that damages had been sustained ; that the right of the mortgagees to resort to the se- curity arose when their liability, as indorsers, was fixed. Nat. Bank v. Bi contributed to it, or enabled another to commit a wrong, must bear it. If a party signs and acknowledges a deed, supposing it to be a lease, without reading the same, and thereby enables his grantee to sell the property to an innocent purchaser for a valuable consideration, the title will pass to such purchaser, and the grantor must bear the loss. Gav- agan v. Bryant, et al., 83 111. 376. 2170. The general rule, where parties are guilty of negligence, that of the plaintiff must be slight when compared with that of the defend- ant, and his must be gross, to authorize a recovery against him. A mere preponderance of negligence on the part of the defendant is not sufficient. Schmidt, Adm'x v. Chicago & Northwestern By. Co., et al.^ 83 111. 405. 2171. Before any recovery can be had by a party receiving an in- jury by falling into an excavation in a sidewalk not properly protected,, he must show that he had observed due care for his personal safety r and the burden of proving such fact is upon him. Kepperlij v. Ramsden, 83 111. 354. 2172. As between two innocent persons, where one of two inno- cent parties is to suffer loss, it must fall upon the first one in fault. If, therefore, the equitable owner of a note loses the same, and it is- found and put upon the market, and conies into the hands of an inno- cent and bona fide purchaser, the loss must fall upon the loser of the note for his negligence in not taking proper care of the same. Gavin v. Wiswell, 83 III. 215. 2173. An assignee of certificates of shares of stock, who leaves- the certificates, with the assignments recorded, in the possession of the assignor, is not thereby guilty of negligence, so as to be estopped to- set up his title against a person who claims title to the certificates through an alteration of the assignments by the fraud and forgery of the assignor. Eaton v. Telegraph Co., 68 Me. 63. 2174. One accepting a deed of conveyance of land is bound to ex- ercise ordinary prudence in examining the instrument, and cannot, in a suit against the grantor for alleged defects in the deed, excuse him- self for this neglect upon the ground of his confidence in the grantor- Jaeger v. Whitsett, 3 Colo. 105. 2175. The employment of a common carrier is a public employ- ment, and while he may, by special agreement, excuse himself for ac- cidental losses, he is reponsible for all damages occasioned by neg- ligence or misfeasance, either of himself or servants, and cannot di- vest himself of this liability, either by special contract or notice- Merchants' D. & T. Co. v. Cornforth, 3*Colo. 280. 2176. An action may be brought by a receiver of a national bank against its directors to recover damages sustained by it, through gross negligence and inattention to their duties, at least when no proceeding is pending under the National Banking Act for the forfeiture of its- charter. Brinkerhoff v. Bostwick, 88 N. Y. 52. 2177. In case the receiver is one of the directors chargeable with neglect of duty, such action may be maintained by the stockholders^. OP STANDARD DECISIONS. 299 and when the stockholders are numerous the action may be brought by one or more in behalf of all. Brinkerhoff v. Bostwick, 88 N. Y. 52. 2178. It is not necessary to allege Jn the complaint in such an action a direction from the comptroller, or a demand upon him and a refusal to direct the receiver to bring the action, or a refusal of the receiver to sue. Brinkerhoff v. Bostwick, 88 N. Y. 52. Such an action may be brought in a State court. Brinkerhoff v. Bostwick, 88 N. Y. 52. 2179. The bank itself and the receiver, as such, are proper and necessary parties defendant to such an action. Brinkerhoff v. Bost- wick, 88 N. Y. 52. 2180. It seems that the provision of said act (U. S. R. S., 5239), that if the directors of a bank organized under it shall know- ingly violate or permit the violation of the provisions of the act, the franchises of the bank shall be forfeited, such violation, however, to be first determined by a United States Court in an action brought by the comptroller of the currency, and in case of such violation making the directors participating therein liable for damages, applies only to viola- tions of the act itself, by the assumption of powers in excess of the franchise granted, or by a disregard of the prohibitions of the Brinkerhoff v. Bostwick, 88 N. Y. 52. NOTARY PUBLIC. 2181. There is no statute conferring on notaries public a general power to administer oaths and take affidavits. Such a power is not one of the incidents of the office of notary public, under the law mer- chant, and as it is not, by the statutes of Texas, conferred on notaries of other States, an instrument purporting to be an affidavit executed before a notary public of another State, by an appellant, stating an in- ability to give bond, with security, for costs, is not an affidavit, within the meaning of the statute. Jenks v. Jenks, 47 Texas, 220. 2182. The sureties on the official bond of a notary public are liable for any loss or damage caused by his affixing his notarial paraph to any mortgage note which he knew to be forged. And any one injured by his act has a right of action on the bond against his sureties. Rochereau, et al. v. William McG. Jones, 29 La. 82. NON-RESIDENT. 2183. A foreign creditor rightfully in a court of this State, pursu- ing a remedy given by the statutes of the State, may enforce that remedy to the same extent, in the same manner and with the same priority of lien as a citizen. Hibernia Nat. Bank v. Lacombe, 84 N, Y. 367. 300 MONROE'S DIGEST NOTICE. 2184. An association (not incorporated) desired to raise money, individual members made notes in large sums for the purpose and placed them in the hands of Hostetter, one of the association. The .amounts being too large to negotiate, he gave his individual notes in smaller sums and retained the large notes as security for himself. Evidence tending to prove the ratification of his acts by the other members of the association was admissible in a suit upon the original notes by a holder. Held, that Hostetter's knowledge of the circum- stances, etc., of the notes was to be imputed to the firm. McClurken v. Byers, 74 Penn. St. Repts. 405. 2185. Notice to the cashier of a bank lending on trust stocks, that the stock pledged is held in trust, is notice to the bank. Gaston v. Am. Exch. Bank, 29 N. J. 98. 2186. To release a surety, under the statute, satisfactory proof must be made, or a notice in writing, by him to the holder of the obli- gation, to from its date, shall be considered overdue and dishonored, does not affect the rights of the original parties to the note, but only those of third parties, as indorsers, guarantors or purchasers. Sey- mour v. Continental Life Ins. Co., 44 Conn. 300. 2187. Where a weekly publication of a notice is required, it is not necessary to show publication on the same day of each week ; it is suffi- cient if made on any day of each week for the requisite number of weeks. Wood v. Knapp, 100 N. Y. 109. OF STANDARD DECISIONS. 301 OFFER. 2188. Defendant not liable thereon unless plaintiff's, within reason- able time, give notice that they had accepted the offer, or had acted on it. Glaftin & Go. v. Bryant, 58 Ga. 414. OVERDUE COUPONS. 2189. When a railroad corporation, through its president, bor- rowed money of its agent, and pledged with him mortgage bonds as- security, although the agent could, as between himself and the cor- poration, only hold the bonds as security for the loan, on payment of which they should be surrendered to the company, yet a person in good faith purchasing the bonds from the agent could hold them for at least the amount he paid for them. The amount paid for the bonds may be taken into consideration in determining the question of good faith. 2190. And where the purchaser from an agent afterwards sells the bonds to a bona fide purchaser, the fact that the bonds were then over- due will not preclude the last purchaser from holding on to the bonds as indemnity for the amount he paid, although in excess of the sum originall}" borrowed by the company upon them. 2191. An honest purchaser from the agent of the company can give a good title to another, although the bonds become due before the last transfer. The question of a bona fide purchaser considered, as also effect of the clause making the principal due, by an omission to pay an instalment of interest. Under the circumstances of this case the last party was held entitled, in an action brought against him by the company for the recovery of the bonds, to detain them as indem- nity for the amount he had paid on their purchase. Todd v. Shelbourne, 8 Hun, 510. Decision on all the above questions in the case of Grand Rapids and Indiana Railroad Co. v. Joshua C. Sanders, 54 Howard's, N. Y. 214. OWELTY. 2192. When owelty is required to equalize partition between two tenants in common, tlie estate of one being mortgaged, it should, if to be paid by the unincumbered owner, be paid to the mortgagee of the other and credited on the mortgage note. Green v. Arnold. 11 R. I, 364. 302 MONROE'S DIGEST PAROL EVIDENCE. 2193. Parol evidence is not admissible to vary the terms of a written contract. Serviss v. StockstilL, 30 Ohio, 418. PARTNERSHIP. 2194. Partner surviving of a firm may assign a promissory note payable to the late firm, by indorsement, so as to vest the legal title in the assignee, as effectually as if the note had been made payable to him. Johnson, et al. v. Berlizheimer, 84 111. 54. 2195. A note by a partnership to one of its members for money borrowed, may be enforced at law in the name of an indorsee not a member of the partnership, although the payee be a party defendant and the real owner of the note, no reason appearing why a judgment at law would not do legal justice between the real parties. Walker v. Wait, et al, 50 Vt. 668. 2196. One member of a partnership cannot bind his copartner by a promissory note for a partnership demand, made after the dissolution of the partnership. Curry v. White , 51 Cal. 530. 2197. In an action against A. for goods sold and delivered, to 'which the defence was payment by the negotiable promissory note of B. and C., it appeared that the plaintiff took the partnership note of B. and C. in payment. Held, that the declarations of one of the part- ners, to the effect that A. was a member of the firm, were admissible in evidence to show that the plaintiff' took the note under a misappre- hension, and that, if this were so, the action could be maintained. Tozier v. Crafts, 123 Mass. 480. 2198. The holder of a claim against a partnership has a legal right to have his claim established against the estate of the deceased partner, and, in the ordinary course of administration, his claim will be paid pari passu with other claims of the same class, without regard to the distinction between partnership and individual claims. Higgins v. Rector, 47 Texas, 361. 2199. While it is true that, after the dissolution of a partnership, the members thereof cannot create obligations which will bind the firm, or change the character or form of those already existing, still it devolves on them to give actual notice to those with whom the firm has had dealings ; and any act done within the scope of the partner- ship, by one of the members, after its dissolution, and before actual notice of dissolution to those with whom said firm had been dealing, is binding upon all the members of such firm. Partnership notes import at law although it is otherwise in equity a joint, and not a joint and several obligation. Dams v. Willis, 47 Texas, 154. 2200. As by operation of law a partnership is dissolved by the death of any of its members, any agreement taking the partnership out of this rule must be shown distinctly and by evidence satisfactory. Alexander v. Lewis, 47 Texas, 481. 2201. The partnership articles contained a provision that the OF STANDARD DECISIONS. 303 special partner should bear a proportionate share of the losses. Held, that this was not violative of said act ; that there is not in the Limited Partnership Act (1 R. S. 763, 1, ct. ap.) anything prohibiting the special partner from extending his liability by agreement with his partners, or assuming risks beyond the loss of capital. George v. Grant, 97 N. Y. 262. 2202. An incoming partner can only be made liable by agreement for the prior debts of the firm, whether he succeeds an outgoing part- ner by purchase, or whether, upon the death of one partner he joins with the survivors in carrying on the business. Serviss v. McDonnell, 107 N. Y. 260. 2203. An undertaking on his part, alone or in connection with others, that the new firm will pay the debts of the old firm, can be en- forced only by the old firm ; its creditors may not sue for a breach of it. / bid. 2204. Whereon partner, R. M. affixed his name and seal to an in- strument whose testatum set forth that " R. M. & Sons, by R. M., one of the firm, had thereto set their hands and seals " the instrument may be regarded as the deed of all the partners on proof that prior to the execution the others had authorized R. M. to execute the instrument, and after execution, with full knowledge acquiesced in what he had done. Gibson v. Warden, 14 Wall. U. S. 244. 2205. A member of a partnership, residing in one state, not served with process and not appearing, is not personally bound by a judgment recovered in another State against all the partners after a dissolution of the firm, although the other members were served, or did appear and caused an appearance to be entered for all, and although the law of the State where the suit was brought authorized such judgment. Hall, et al. v. Lanning, et al, (1 Otto.) U. S. S. C. 91, 160. 2206. After the dissolution of a partnership, one partner has no implied authority to cause the appearance of another partner to be en- tered to a suit brought against the firm. Quoere, whether such im- plied authority exists during the continuance of the partnership. Ibid. 2207 Where a member of a firm, who had charge of its financial business, took up firm notes by giving in exchange therefor notes of a third person, indorsed by him in the firm name, which indorsement was without the knowledge of his partners. Held, that the indorsement was within the authority of the partner making it ; and that the firm was liable thereon. Steuben Co. Bank v. Alberger, 101 N. Y. 202. 2208. It is lawful for an insolvent member of a firm to devote his individual property to the payment of firm debts or any debt owing by him to his partners to the exclusion of his individual creditors, and no inference of fraud can legally be derived from such disposition. Crook v. Rindsko/, 105 N. Y. 476. 2209. Where three persons form a partnership, and agree to bear the losses and share the profits of the partnership venture in propor- tion to their contribution to its capital, and two of the partners fur- nish all the money and do all the work, they are entitled to be repaid their advances out of its assets before payment of the individual credi- tors of the partner who paid nothing and did nothing to promote the partnership business. Hobbs v. McLean, 117 U. S. 567. 2210. M., plaintiff's testator, and defendant were formerly partners 304 MONROE'S DIGEST carrying on a hotel, the leases for which expired at the time fixed for the termination of the partnership. Prior to that time defendant, without the assent or knowledge of his partner, procured new leases in his own name for terms beginning at the termination of the partnership, which, upon discover} 7 of the fact by M., he claimed to hold exclusively for hi* own benefit. This action was brought to have M.'s interest in the leases declared and adjudged. It appeared that during the pendency of the action M. brought another action for a dissolution of the part- nership and sale of its effects. The judgment therein directed, among other things, a sale of the furniture and fixtures belonging to the firm r leaving the question as to the disposition of the leases to be determined in this action. Sale was made accordingly, the property bid off by defendant, and M. received his proportion of the purchase price. Upon the final trial herein, which did not occur until after the expiration of the new leases of which defendant had had the benefit, plaintiff was- allowed to prove, as a basis for computing damages, what the furni- ture, good will and leases if put up for sale together would have brought, the partners each having a right to bid at the sale. Held, no error. Mitchell v. Read, 84 N. Y. 556. 2211. The right of a partner to sign the firm-name to a contract of indemnity in favor of third persons must be strictly proved ; but it need not necessarily be proved by a written authority to him. Moran, et al. v. Prather, 23 Wall. TJ. S. 492. 2212. A new partner, in a firm not liable for the debts of the old firm of the same name, is not responsible for money borrowed, without his knowledge or consent, by the members of the old firm, and used to pay a debt of the old firm, the lender being aware that the money was to be so applied. Elkin v. Green, 13 Bush, Ky. 612. 2213. Two partners constituting an old firm could not bind the third partner who, with them, constituted a new firm of the same name, without his knowledge or consent, by borrowing money and using it to pay debts of the old firm, or by making and delivering to them- selves the notes of the new firm, when the new was not indebted to the old firm. Elkin v. Green, 13 Bush, Ky. 612. 2214. The power of one partner to bind his copartners rests alone upon the usages of merchants, and does not amount to a rule of law in any other than commercial partnerships. In non-commercial partner- ships, one who seeks to hold the firm bound upon a contract made by a single member, must be able to show either express authority, or that such is the custom and usage of the particular branch of business in which the firm is engaged, or such facts as will warrant the con- clusion that the partner had been invested by his copartners with the requisite authority. 2215. The extent of the power of a partner to bind his firm is a question of law in commercial, and a question of fact in non-commercial partnerships. The business of a commercial partnership being ascer- tained, and the nature of the contract made by a single member, and the circumstances attending it being known, the court may generally determine, as matter of law, whether the contract was within the scope of the implied powers of a partner. Not so, however, in reference to a contract made by a member of a non-commercial partnership. 2216. A partner in a non-commercial partnership does not gen- OF STANDARD DECISIONS. 305 erally possess power to bind the firm, and consequently the extent of his power is not fixed by the rules of law, but each case is left to be decided upon its particular facts ; and in all such cases, in order to make out the liability of the firm, it ought to be made out affirma- tively by the plaintiff that the partner had power to make the contract in question. 2217. A partnership engaged in the business of mining, etc., is a non-commercial partnership. A partner has no implied power to pur- chase land in the name of the firm in a partnership formed for the pur- pose of mining, etc. Dickinson v. Valpy, 10 B. & C. 125 ; Levy v, Pyne & Richards, 41 E. C. & L. 249 ; Smith v. Sloan, 37 Wis. 289. Sustained by the court in Judge, Etc. v. Braswell & Co., 13 Bush, Ky. 67. 2218. Where one partner, who is in sound health, is made sole agent of the partnership by another, who is not, and who relies on him wholly for true accounts, and the party thus made agent manages the business at a distance from the other, communicating to him no infor- mation, the relation of partners, whatever it may be in general, be- comes fiduciary, and the law governing such relations applies. Brooks v. Martin, 2 Wall. U. S. 70. 2219. On the trial of an action against B., upon an issue as to whether one W. and B. were partners, there was evidence that W. and B. were together, and had certain stock together ; that B. carried a note to bank to be discounted, with a written request from W. that it should be done ; that B. said that the money was for himself and W. ; that they were buying stock together, and that the money was to be used in buying stock ; that B. afterwards referred to the debt he and W. owed the bank, etc. Held, that the jury were warranted in finding that a partnership existed between W. and B. Dobson v. Chambers, 78 N. C. 334. 2220. Where a member of a firm of real estate brokers receives money with which to purchase land for the person advancing the same, and passes the same over to a partner, who deposits the same to the credit of the firm, and the proof fails to show that it was invested as agreed, the whole firm will be liable in assumpsit to the party so advancing, for the amount, with six per cent, interest. Kerr, et al. v. Sharp, 83 III. 199. 2221. Agreement between A. and B., by which A. agreed to build five houses for B. at actual cost, to be completed, etc., and the houses and the lots whereon they were built to be sold, and the proceeds of the sale, after deducting the cost of the houses and the value of the land, rated at five cents a foot, and other expenses, to be divided be- tween A. and B. Held, that if this agreement could be construed as a partnership at all, it was one for disposing of the houses and land, not for building them. Bisbee v. Taft, 11 R. I. 307. 2222. Where one member of a firm, at its dissolution, sold all his interest in the property and accounts of the firm to his partner, who gave his note therefor, the defendant in suit upon the note by the payee, cannot set off against such note an account due from the plain- tiff to the firm at its dissolution. Wiggin v. Goodwin, 63 Me. 389 ; also, Lesure v. Norris, 11 Gush. 328. 2223. Where two persons composing a partnership make and sign, 20 306 MONROE'S DIGEST in their partnership name, a false return to the assessor of internal revenue, they may be jointly indicted therefor. United States v. Mc- Oennis, 1 Abbott, 120. 2224. Even, if in fact there be no partnership, .one is liable as a partner, if he represents to another that he is a partner, and thus ob- tains goods from him for the partnership. Ibid. 2225. Partners have no implied authority to confess judgment for each other. An infant cannot in his own name confess judgment. An infant's assignment is not void but only voidable, and that only by the infant or some one in his right. A judgment confessed by an infant's partner in the name of the firm is void and will not support an attach- ment as against a previous assignee of the goods attached. Soper v. Fry, 37 Mich. 236. 2226. Foresman sold out his interest in a firm to the remaining members, who covenanted jointly and severally to pay the debts, and indemnify him against them ; the remaining members continued in the same business as a partnership, took all the first firm's assets and took upon themselves the debts, without any division of Foresman 's in- terest. Foresman paid debts of the first firm, the second firm after- wards assigned for the benefit of creditors. Held, that Foresman was entitled to come in as a creditor. The distribution of firms' assets is governed by the equities of the partners, not the rights of creditors. In insolvency the firm's assets go to discharge the firm's creditors be- fore the individual property of the members can be taken. The other partner having bought Foresman out and indemnified him, he became then surety, and, having paid debts, was subrogated to the rights of the creditors. Frow, Jacobs & Co.'s Estate, 73 Penn. 459. 2227. Contracts made by one partner on behalf of the firm, in the business of the firm, are binding upon the firm. Wilson v. Elliott, 57 Hall, N. H. 316. 2228. It is a violation of good faith for any partner to stipulate clandestinely with third persons, for any private and selfish advantage and benefit to himself exclusive of the partnership ; for all the partner- ship property and partnership contracts should be managed for the equal benefit of all partners, according to the respective interests and shares therein. If, therefore, any one partner should so stipulate clan- destinely for any private advantage or benefit of himself, to the dis- advantage, or in fraud of his partners, he will in equity be compelled to divide such gains with them. McMahon, et. al. v. McClernan, 10 West Va. 419. 2229. Although the most conclusive proof is not required where defendants are sued as partners, there must be some proof of partner- ship. Where the only proof of partnership was the evidence of the plaintiff who swore they were partners because " she knew it in busi- ness," "she had heard so," " everj'body knew it," " and there was a sign on the store Uhlig & Co.," " she knew only two of the defendants, never saw and did not know the name of the third one," and which of the two defendants named Uhlig was the one she did not determine. Held, that there was no direct evidence of defendant's copartnership, and no proper proof of reputation to that effect, and the com- plaint should be dismissed for this reason. Oulke v. Uhlig. 55 Howard. Jf. Y. 434. OF STANDARD DECISIONS. 307 2230. An execution creditor of an individual member of a co- partnership, having caused property of such copartnership to be levied on by an officer, to satisfy his debt, was, together with such officer, on application of another partner, temporarily enjoined from making sale until the partnership debts had been paid, and directed to deliver such property to a receiver appointed in such proceedings to settle the part- nership affairs. On appeal by such creditor alone to the Supreme Court, such injunction was reversed as to him, and the cause remanded for further proceedings. Such receiver having subsequently sold such property and reported a distribution of the proceeds of the sale to the partnership creditors, such execution creditor instituted an action against such copartner and his surety, on the bond executed by them to procure such injunction, to recover damages resulting therefrom. Held, that no reversal of such injunction having been obtained as to such officer, or as to the appointment of such receiver, and such creditor having continued to be a party to such action, resulting in the sale of such property and the distribution of the proceeds thereof, the judgment therein rendered, after such reversal, the reports of such sale by the receiver, and the approval thereof by the court, were com- petent evidence against, and bound him. Donellan v. Hardy, 57 Ind. 393. 2231. By the levy of his execution upon partnership property, the creditor of an individual partner acquires no interest whatever in the property itself, but only a lien for the share of such partner, in- dividual^', in the surplus remaining after all partnership debts and prior liens shall have been paid. Ibid. 2232. An action at law cannot be maintained by one partner against another, involving the state of the partnership accounts. But one partner may sue another at law on a promise to pay a balance which has been ascertained and agreed upon. And a, fortiori may an action at law be maintained on negotiable promissory notes given by one partner to another for the amount of the balance ascertained upon dissolution. And it would not be competent for the defendant to de- feat such action by showing that there had been no final settlement of partnership accounts. McSherry v. Brooks and Barton, Trustees, 46 Md. 103. 2233. It is not necessary that an incoming partner should do something, in order to escape liability for the previous debts and obli- gations of his copartners, but on the contrary it is necessary that he should do something in order to make himself liable for such debts or obligations. Gauss v. Hobbs, 18 Kansas, 504. 2234. One partner, without the consent, expressed or implied, of his copartner, cannot apply a claim of the firm to the payment of his individual debt, even in order to retain for the firm its debtor's cus- tom, and such attempted application with knowledge of the facts by such debtor, will not defeat an action at law upon a claim, by the firm or its assignee. Viles v. Bangs, 36 Wis. 131 ; also, Cobyhausen v. Judd, et al, 43 Wis. 213. 2235. A sale by a partner, in payment of his own debt, of goods which are in fact goods of the partnership, but which the partnership has so entrusted to him as to enable him to deal with as his own, and to induce the public to believe to be his, 308 MONROE'S DIGEST and which the creditor receives in good faith and without notice that they are the goods of the partnership, is valid against the partnership and its creditors. Locke v. Lewis, 124 Mass. 1. 2236. A community of profit and loss is the tost of a partnership r even where the dispute is between the partners. Parties casually met together, who make an agreement to buy what goods they can, either jointl}' or separately, and on reaching the home market to sell on joint account, and divide the proceeds among themselves pro rata, according to the amount each should put in the venture, become partners as to- such venture. Such a partnership is a trading or commercial partner- ship, and one of the partners may borrow money in the name and on the credit of the firm, by note, bill, or otherwise, and all will be liable.. Misappropriation of the funds by the partner borrowing the money does not relieve the firm from liability. Howze v. Patterson, 53 Ahu 205. 2237. A debtor, being a member of an insolvent partnership, con- veyed his separate estate in satisfaction of a debt due to a separate creditor. The real estate exceeded in value, to a considerable amount,, the debt for the satisfaction of which it was conveyed. Held, that the other creditors had an interest in the excess, aud that in equity the property conveyed would be held as a security, first, for the debt due to the grantee, and, as to the excess of value, for other debts. The real estate conveyed being the separate property of the copartner, the ex- cess of value was bound, first, for his separate debts, and only after satisfying these was it applicable to the debts of the partnership. Bailey, et al. v. Kennedy, et al., 2 Del. 12. 2238. An attachment of partnership property for a partnership- debt will prevail over a prior attachment of the same property for a separate debt of one of the partners, or over a mortgage of one of the partners to secure his individual indebtedness. Fargo & Co. v. Ames r et ux., 45 Iowa, 491. 2239. One cannot be fixed with liability as a partner on the ground that he has been held out as a partner unless two things occur : First, the alleged act of holding out must have been done either by him or by his consent. Second, it must have been known to the person seeking to avail himself of it. Denithorne v. Hook, 112 Penn. 240. 2240. A person who permits himself to be held out as a partner is liable as such, whether in fact a partner or not. Brugman, et al. v. McGuire, et al, 32 Ark. 733. 2241. Accounts between partners are to be adjusted on principles- of equity. Maddox v. Stephenson, 60 Ga. 125. 2242. Where one of two partners has advanced to the partner- ship more than the other, he cannot maintain assumpsit against the other partner for his proportion of it, so long as the partnership debta are not paid. Mickle v. Peet, 43 Conn. 65. 2243. When two or more parties, engaging in a business venture with the understanding that there is to be a communion of profit and loss, will be deemed special partners, and as such, in case of loss,, severally liable for their pro rata share of such loss. Stettaner Bros. v. Carney & Stevens, 20 Kansas, 474. 2244. Where the evidence shows that the two individual signers* of a merely joint note were, at the date of the note, commercial part- OF STANDARD DECISIONS. 309 tiers, and that the consideration of the note was money borrowed for ;and used by the partnership, each of the makers will be liable on the note in solido. Mitchell v. D. Armond, 30 La. 396. 2245. When one partner in a firm borrows money, representing that it is for the use of the firm, and gives a note of the firm therefor, without the knowledge of his copartners, but appropriates the money to his own use, the firm will be liable, unless the creditor knew, or had reasonable ground to believe, the money was not borrowed for the use of the firm, or the circumstances were such as to put him upon in- quiry, and he neglected to inquire. Wagner v. Freschl, 56 N. H. 495. 2246. Real estate held by a commercial firm as partnership as- ets, upon the dissolution of the partnership, as between the partners, vests in the individual members thereof, as tenants in common. Mc- Grnth v. Sinclair, 55 Miss. 89. 2247. Power to dispose of its property. The general creditors of a, firm have no lien on its assets, any more than ordinary creditors have upon the property of an individual debtor. And the power of a firm to dispose of its property, all the members cooperating, is as un- limited as that of an individual. Schmidlopp v. Currie, 55 Miss. 597. 2248. The assignment of its assets for the benefit of its creditors, made by a defunct partnership to an individual member of a new part- nership succeeding to the former business of the old concern, will not make the new partnership liable to the defunct partnership for the Talue of any of its assets, and therefore not amendable to a garnish- ment at the suit of any creditor of the defunct concern. Bancker v. Harrington & Co., et al., 30 La. 136. 2249. A creditor of one of the partners of a firm may attach such partner's interest in a specific portion of the stock of goods be- longing to the firm, and is not required, in order to render the attach- ment regular, to take the partner's interest in the entire stock of goods. Fogg v. Lawry, 68 Me. 78. 2250. A person, who has no interest in the business of a firm, or in the capital invested, save that he is to receive a share of the profits, as a compensation for services, or for money loaned for the benefit of the business, is not a partner, and cannot be held liable as such by a creditor of the firm. Richardson v. Hewitt, 76 N. Y< 59. 2251. Where money is loaned for the benefit of a business, and is to be refunded absolutely, without regard to the profits ; the fact that the lender is to receive a share of the profits, to apply on the indebted- ness, does not make him liable to creditors as a partner ; to have that effect, the payment of the advancement must depend upon the profits. Eager v. Crawford, 76 N. Y. 97. 2252. A promissory note executed in the name of a certain com- mercial firm, in liquidation, by an agent of one of the former partners, after the dissolution of the firm, is not binding on the former members who have not given any specific authority for the execution of a note. I)odd, Brown & Co. v. John Bishop & Co., etal.,30 La. 2d, Book 1178. 2253. A surviving partner is entitled to sue in his representative capacity for the amount due the partnership, and in his own name for the amount due to himself individually. The respective demands may be united in the same action, but should be separately stated. Quillen v. Arnold, 12 Nevada, 235. 310 MONROE'S DIGEST 2254. Where a loan is made by two members of a commercial firm, in a matter foreign to the business of the firm, and in disre- gard of the express opposition of the third member, the two members making the loan are justly chargeable with its amount. David G. Cooke v. Hugh and Andrew Allison, 30 La. 963. 2255. Where a creditor of a former commercial firm sues its in- dividual members for goods sold to the firm, and declares in his peti- tion on the itemized account of the goods, and also on a promissory ute of the firm, given in liquidation of the account by one not author- ized to sign for the firm, he will be entitled to recover for the goods r on the unopposed proof of their sale and delivery. One who acts in such a manner as to induce others to believe that he is a member of a certain partnership, makes himself liable to them as a partner. Dodd r Brown & Co. v. John Bishop & Co., et al., 30 La. 1178. 2256. A party seeking exemption from the liability of a general partner, under the Act of 1874, respecting limited partnerships, must show a strict compliance with the act. The statute does not require that the capital should be paid in cash ; but when it is paid in property r it should be so stated, and its cash value given. Holliday, et al. v. Union P. & B. Co., 3 Colo. 342. 2257. In an action brought by one member of a partnership ta have an accounting with his two partners, and to recover a balance- due him, where the referee reports that such plaintiff contributed $663.48 to the capital, and the other two partners $370, and that cer- tain profits were realized from their business, and that by the terms of the partnership the parties were to share equally in the profits thereof, held, that each member of the firm, on dissolution of the partnership, is entitled to a return of his capital, and in addition one- third of the profits. Norman v. Conn., 20 Kansas, 159. 2258. The individual members of a commercial firm may execute a valid note, and a valid mortgage securing said note on their individ- ual property, in favor of the firm, and any third person acquiring the note from the firm, in good faith, for value, and before maturity, may enforce its payment. Pike, Brother & Co. v. Hart & Hebert, 30- La." 868. 2259. Service upon member of; Service upon one of the firm, after dissolution, confers jurisdiction to render a judgment which may be satisfied out of the partnership property, or the individual prop- erty of the member served, but confers no jurisdiction of a partner not served. A judgment having been obtained upon a promissory note, the note became merged in the judgment, and could not after- wards be made a cause of action. Hartford, Thayer & Co. v. Street, 46 Iowa, 594. 2260. When all the partners are in a situation that would author- ize their individual creditors to sue out attachments against them re- spectively, a creditor of the firm may procure an attachment against the partnership, and have the same levied upon the partnership effects. Starr v. Mayer & Co., 60 Ga. 546. 2261. R. S., c. 82, 87, provides that when the legal representa- tive of a deceased person is a party, he may testify to any facts, legally admissible upon the general rules of evidence, happening be- fore the death of such person. Held, that the surviving partner, who- OF STANDARD DECISIONS. 311 gives bond under R. S., c. 69, 2, and is afterwards sued upon a note of the firm, is not, therefore, a representative of bis deceased partner, and as such entitled to testify to facts happening before his decease within the. provisions of c. 82. Holmes v. Brooks, 68 Me. 416. 2262. Note in renewal of another made by same partner who signed the last, which itself was in renewal of a note by a different firm, of which the signer had been a member, upon plea of non est factum by the copartner, onus of showing authority to sign is on the plaintiff'. Bryan v. Tooke, et al., 60 Ga. 437. 2263. One partner in a mercantile business has power to bind the others by a promissory note given in the usual course of business, and the payee of a note, executed by a partner in the firm name, has the right to presume that it was executed in the usual course of business. Sherewood v. Snow, Foote & Co., 46 Iowa, 481. 2264:. The fact that the partner signed his individual name before signing that of the firm, should be considered by the jury in determin- ing whether or not the payee had reason to know that the considera- tion was procured for his own individual use. Ibid. 2265. The creditors of a corporation selected three of their num- ber, who were elected directors of the company, and charged with the management of its business. Held, that they could not be made liable as partners for supplies furnished them and used in the conduct of the corporation business. Beeson v. Lang, 85 Penn. St. 197. 2266. The fact that the owner and shipper of property is doing business in the name of a firm in violation of the provisions of the Act (chap. 281, Laws of 1833), " to prevent persons transacting business under fictitious names," and that the property is marked with the firm name, is no defence to an action by such owner against a railroad corporation for loss of, or damage to the property while in transit. The said act, being highly penal, will not be extended by im- plication or construction to cases not within the terms of the act fairly interpreted. Wood v. E. R. R. Co., 72 N. Y. App. 106. 2267. An ordinary partnership cannot be held liable for the in- dividual debt of one of its members because of an agreement to that effect between that member and his creditor, unless it be proved that the member was authorized to make the agreement by his copartners, or that his agreement was ratified by them, or that the partnership was benefited by the transaction. W. E. Hamilton, et al. v. Nellie Hodges, Tutrix, etal, 30 La. 1290. 2268. In a feigned issue to try the right to certain cattle, A. of- fered evidence that he purchased the cattle through B., who was his agent, in the name of B. ; that it was agreed that the latter should butcher and sell the meat, and out of the proceeds return to A. the cost and one-forth of a cent per pound of dressed meat additional, and that B. should have the balance. Upon this evidence the court granted a non-suit, on the ground that it did not tend to prove an exclusive ownership in A., but established a partnership. Held (reversing the court below), inter se, or as to third parties, and that the case should have been submitted to the jury to say what was the actual relation of the parties. Dale v. Peirce, 85 Penn. St. 474. 2269. Partners cannot, during the existence of the partnership, claim individual exemption in partnership property, when taken under SI 2 MONROE'S DIGEST legal process for partnership debts. (Overruling in this particular, Howard v. Jones & Starke, 50 Ala. 67 ; Dunklin v. Kimball, 50 Ala. 251; and Giovanni v. First Nat. Bank, 51 Ala. 177.) Giovanni v. First Nat. Bank, 55 Ala. 305. 2270. Where no other relation exists between the shareholders of a steamboat than that which arises from the joint ownership, the}' are not partners, nor is their liability to be measured by the rules of law peculiar to the partnership relation. When one of the shareholders sells out his interest in a steamboat, and the bill of sale, in accordance with the Acts of Congress, is duly acknowledged, and recorded, it is valid notice to all parties and subsequent creditors with whom the owners may contract. Adams v. Carroll & Co., 85 Penn. St. 209. 2271. During the existence of a partnership, which is neither bankrupt nor contemplating bankruptcy, one of the members of the iinn may, with the consent of the other partner, or partners, upon a bona fide consideration, with no benefit reserved, assign and transfer the assets of the partnership in payment of his individual debt, if no lien has attached to such assets ; and such transfer is good against the firm creditors. Schmidlapp v. Currie, 55 Miss. 597. 2272. Where accounts are kept at a bankers by a firm, each part- ner having a right to draw checks, and also by the individual partners of the firm, it is not the duty of the bankers to inquire into the pro- priety of any transfer of funds which may be made from and to the different accounts. Upon the death of one partner in the firm having an account at a bankers, the surviving partner has a right to draw checks upon the partnership account. Backhouse v. Charlton, English Chancery Division, Law Reports, 1878. 2273. It is only in equity that separate creditors of a partner are entitled to preference over the creditors of a partnership in the distri- bution of the separate effects of their debtor. The lien of a subse- quent judgment for an individual debt does not take priority over the lien of a judgment first rendered against a debtor upon a partnership debt. Gillaspy v. Peck, et al., 46 Iowa, 461. 2274. .In partnership suits the defence of the Statute of Limita- tions is not available, unless six years have elapsed before the filing of the bill since the dealings of the partners wholly ceased. A partner- ship was formed between two civil engineers and architects, the profits of which were to be divided in shares of three-fifths and two-fifths. During the continuance of the partnership they invested moneys of the partnership in the purchase of real estate, which resulted in a loss. Held, that the loss was to be borne by the partners in the same pro- portion as they were to share the profits and loss of their other busi- ness. Storm v. Cumberland, 18 Grant's Chance^, Ontario, 245. 2275. When a party fraudulently misappropriates the money of his firm, and purchases, in his own name, real estate and policies of life insurance with firm funds, he will in equity be charged, b.\ con- struction, as a trustee for the partnership. When all the premiums ai'e paid with partnership moneys, it makes no difference that the fraud doer, in his lifetime, changed the life policies so as to make them pay- able to his wife. She, having paid no consideration for them, will be charged as a trustee for the firm, and will be permitted to derive no benefit from them. Shaler v. Trowbridge, 28 N. J. Eq. 595. OP STANDARD DECISIONS. 313 2276. Acceptance by one partner for separate debt, and not in partnership name liability of copartners. Where the plaintiffs, a bank, discounted a bill, drawn by one partner, and accepted by him in the name of the firm, the manager being aware that it was intended by such partner to reimburse himself for moneys which he alleged that he had advanced to the firm, and it appeared that such acceptance was unauthorized by the other partners, Held, that the bank could not re- cover against them. The partnership name, when the bill was so drawn and accepted, was J. S. W. & Co., and the acceptance was in the name of W. M. & Co. Held, that this also would have been fatal to the plaintiffs' recovery. Royal Canadian Bank v. Wilson, et al., 24 Upper Canada Com. Pleas Repts. 3ti20. 22T7. Real estate purchased with partnership funds for partner- ship purposes, and appropriated to partnership uses, is in equity pre- sumed to be partnership property, and it is, under such circumstances, immaterial whether the legal title is taken in the name of a part or all of the partners. Individual real property brought into the partner- ship by the copartners, at the time of its formation or afterwards, and, by proper agreement of the partners, converted into partnership prop- erty, and appropriated to its uses, becomes a portion of the capital stock of the firm, and will be treated in equity as personalty, although standing in the name of an individual partner. Hoyle v. Lowe, 12 Nevada, 286. 2278. When the property of an insolvent partnership is ordered to be sold, in order to pay the partnership debts, the right of redemp- tion does not exist. Rhodes v. Williams, 12 Nevada, 20. 2279. When a non-resident commercial firm make an agreement with two resident firms, in virtue of which agreement one of the resi- dent firms is to purchase certain merchandise, and ship it in the name of the other, and the other resident firm, with the money of the non- resident firm, is to pay for the merchandise, and each of the resident firms agree to receive, instead of fix sums in payment of their services, certain proportions of the profits to arise from the subsequent sales of the merchandise, and also agree to share in any losses resulting from said sales. Held, that such an agreement will not make the said firms commercial partners, even as to third persons, when it ap- pears that they did not intend to form a partnership, and that they have not held themselves out to the world as partners. Chaffraix & Agar v. John B. Lafitte & Co., 30 La. 631. 2280. In 1865, after June 1st, a partner retired, selling out to his copartner his interest (one-half) in the stock, at cost or invoice prices. The retired partner died; and in October, 1866, administration was granted upon his estate. A suit was commenced against the adminis- trator in August, 1873, by the former partner of the intestate upon a certain award, to which suit the administrator pleaded in January, 1874, among other things, that at the time of the dissolution the stock was worth over $1,500, and that he, the administrator, claimed to be entitled to one-half thereof, with interest. He neither expressly offered to set off the claim, nor prayed judgment therefor. The action and the plea remained pending until February, 1877, when the action was voluntarily dismissed by the plaintiff therein. The administrator in July thereafter filed the present bill to recover for his intestate's in- 314 MONROE'S DIGEST terest in the stock. The bill was barred by the Statute of Limitations, and a demurrer, containing that ground among others, was properly sustained. Crane v. Barry, 60 Ga. 362. 2281. Partners are liable for goods furnished for use of the firm even though the vendor was ignorant of its existence and supposed at the time of the sale that he was dealing with and giving credit solely to one of the partners. Reynolds v. Cleveland, 4 Cow. 282. 2282. A creditor of a partnership is at liberty to prove the fact of the partnership, as he alleges it to be, without regard to the man- ner in which parties have arranged their affairs between themselves. He is not concluded by their written contract or agreement as to the relation they sustain to each other. Reed, Crone & Co. v. Kremer & Co., Ill Penn. 482. 2283. The firm of C. F. P. & Co. made their promissory note pay- able to their order and indorsed the same. L., one of the firm of J. S.'s Sons, indorsed his own name and the name of the latter firm, thereon without their knowledge or consent, and delivered it to a firm to whom he was individually indebted to be applied upon the debt, who transferred the note to plaintiff for value, before maturity, plaintiff having no notice of the circumstances attending the execution of the note. In an action against the members of the firm of J. S.'s Sons upon the indorsement, held, that the defendants were liable. At. State Bank v. Saver y, 82 N. Y. 291. PAYABLE AND PAYMENT. 2284. When a promissory note is made in this State, payable in a bank named but not located, it will be presumed, unless the contrary appear, that the bank is located in this State. Henderson v. Ackel- mire, 59 Ind. 540 ; also, Burroughs v. Wilson, 59 Ind. 536. 2285. If the payee of a draft present and surrender it to the drawee, on receiving his check for the amount, which he neglects to present until the next day, the drawee is discharged. Smith v. Miller, 43 N. Y. 171. 2286. Money voluntarily paid in discharge of a claim made upon the payor, or to buy off from and quit a criminal prosecution to which he is exposed, cannot be recovered. Comstock v. Tupper, 50 Vt. 596. 2287. The payment to the sheriff of the redemption money, under foreclosure, in United States treasury notes, and national bank notes r which were received without objection, Held, sufficient. Nopson v. Horton, 20 Minn. 268. 2288. Where, at the time of sending a draft, the sender was, as a member of a firm, indebted to the party whom the draft was sent, in several notes, most of which were then due and bearing interest, and also in two individual notes, not then due, and maturing some time afterwards, and which bore no interest before maturity, and the debtor, at the time of sending the draft, directed the creditor to hold the amount until advised as to its application, and stating that his partner would send a statement of matters in a few days, and such partner did afterwards write, giving a statement as to the firm notes, with their OP STANDARD DECISIONS. interest up to the time of sending the draft, and the other debtor made no other direction for several months after, and not until the creditor had applied the draft upon the firm notes, it was held, that the creditor was, under the circumstances, justified in making the application he did, and being rightfully made, it could not be repudiated by the debtor afterwards. Lewis v. Pease, 85 111. 31. 2289. Where a mortgagor of land is the executor of the will of the mortgagee, and charges himself with the amount of the mortgage debt, as assets in his hands as executor, this operates as a payment of the debt and a discharge of the mortgage. Martin v. Smith, \ 24 Mass, 111. 2290. A creditor who holds notes or other obligations for the pay- ment of money assigned to him by his debtor as collateral security, and neglects to use reasonable diligence to collect them when due,, must bear the loss thence accruing. In an action by such creditor against the debtor, the burden is upon the latter to show that the loss upon the collaterals was caused by the creditor's negligence. Charter Oak Life Ins. Co. v. Smith, et al., 43 Wis. 329. 2291. A stipulation in a promissory note that no credit shall be allowed on it unless indorsed upon it by the payers, will not prevent the allowance in an action upon the note, of any authorized pajTnent actually made, but not indorsed. Kasson, et al. v. Noltner, 43 Wis. 646. 2292. On March 27, 1873, the firm of C. A. B. & Co., being in- debted to plaintiff, an oral agreement was made between them, by which plaintiff agreed to extend the time of payment upon receiving, as col- lateral security, a mortgage, executed by defendant, E., the wife of C. A. B., who had no interest in the firm, upon lands owned by her. In pursuance thereof, said firm upon that day executed and delivered to plaintiff their notes for the amount of the indebtedness. On the day the first of the notes fell due, said firm sent to plaintiff checks for the amount thereof, with intent to pay, and requested the same to be applied in payment of the note. Plaintiff objected to such applica- tion, and requested that the checks should be applied on the open ac- count of the firm, stating that, if insisted upon, the application would be made in payment of the note ; but in that case, the account with the firm would be closed, and payment required and no further credit given. This was not expressly assented to, but no further direction was given as to the application, no demand was made for the note, and the firm continued to purchase, and the plaintiff' to sell on credit. Plaintiff, soon after the interview, credited the checks in the open ac- count and delivered to the firm receipted vouchers, showing such appli- cation. Held, that this did not amount to a payment of the note ; but the facts showed an acquiescence of the parties in the application made. Penn. Coal Co. v. Slake, 85 N. Y. 226. 2293. Payment to an officer who has a valid warrant for the col- lection of such an assessment and who threatens to execute the same, is not a voluntary payment. Bruecher v. Village of Post Chester, 101 N. Y. 240. 2294. No demand for a return of the money so paid is necessary before the commencement of an action to recover the money. Ibid. 2295. Payment to agent who receipts in full, when only author- 316 MONROE'S DIGEST ized to receive payment on account, held not good, even on account Curtis v. Innerity, 6 How. U. S. 146. 2296. Where the draft of a third party is received by a creditor from his debtor for a preexisting debt, the presumption is that it was received as a conditional payment, unless there was an agreement that it was to be an absolute payment, and the burden then of proving such -an agreement is upon the debtor. League v. Waring & Co., 85 Penn. 244. 2297. Taking a note from the debtor or a note of a third party, is no discharge of the debt, unless it is expressly agreed between the creditor and debtor that it is in absolute payment thereof. Dunlap's Exr. v. Shanklin, 10 West Virginia, 662. 2298. A bank check given and accepted by the partners to it as payment of the balance found due upon accounting together, is such a payment as will entitle the drawer to be discharged, if summoned as trustee of the payee, in an action in which the writ is served on the day after such payment, although the check is not presented and paid at the bank on which it is drawn until the next day. Getchell v. Chase, 124 Mass. 366. 2299. Partial payments are applied when their sum equals or ex- ceeds the interest, not before. Houston v. Crutcher, 31 Miss. 51 ; over- ruled in Brooks v. Robinson, 54 Miss. 272. 2300. When partial payments are made on a debt past due (Rev. Code, 1830), they should be applied first to the extinguishment of the accrued interest, and only the residue be applied to the principal. Coleman v. Smith, 55 Ala. 369. 2301. In an action upon a promissory note money paid by the maker after the date of the note and not indorsed thereon, will not be allowed as a credit, if there is nothing in the record to show it was paid as such. Craig v. Young, 2 Colorado, 112. 2302. A married woman owning land joined with her husband in a mortgage which was assigned to a bank ; in a scire facias on it the verdict was for her. She sold part of the land ; the purchaser paid the purchase-money to the bank in order to procure a release of the mortgage. Held, that she could not recover money from the bank. One who voluntarily pays money with knowledge or means of know- ing of the facts, and without fraud on him, cannot recover it because he paid in ignorance of the law. Heal Estate Saving Inst. v. Linder, 74 Penn. St. 371. 2303. Where the vendee of real estate contracts to pay the pur- chase-money in cash or by the delivery of cotton of a specified class at a designated place, as the payments become due, at his option, the right of election is not lost by the failure to deliver the cotton at the time and place, where it is brought about by the conduct of the vendor. Brodie & King v. Watkins and wife, 31 Ark. 319. 2304. A payment of part of a debt before due, is a consideration sufficient to support a contract to give time. Hartman v. Danner, 74 Penn. St. 36. 2305. The owner of a note secured with other debts by mortgage* as a consideration for extension of time received a new note indorsed by defendant, which not having been paid, the mortgage was foreclosed and property sold for less than enough to pay the other debts. Held, OF STANDARD DECISIONS. 31T that such owner was entitled to apply proceeds of sale to the payment of the other debts. See W. Tr. & C. Go. v. Kliderhouse, 87 N. Y. 430. 2306. Money paid under a mutual mistake for that which has na legal existence or validity, may be recovered back as paid without con- sideration, where the vendor is responsible for the mistake, or repre- sents the person so responsible. So held, of the bona fide transfer by executors of a certificate of an execution sale that turned out to be void, but which had been issued to their testator. McGoren v. Avery r 37 Mich. 120. 2307. Any third person, who demands no subrogation, may tender to a creditor, either in his own name, or in that of the debtor, the debt due by the latter, in whatever species of property the debt is payable,, and compel the creditor to accept the payment in that property. State ex rel. John Klein & Co. v. Ed. Pilsbury, Adm'r of Finance, etc., 29- La. 787. 2308. By the law of this commonwealth, the giving of the nego- tiable promissory note of a third person is evidence of payment of a preexisting debt, and sufficient where there is nothing to defeat the in- ference or show that such was not the intention of the parties ; and in the absence of evidence to the contrary, the rule will be presumed to- be the same in Maine. Ely v. James, 123 Mass. 36. 2309. In an action brought for the purpose of establishing the payment of a promissory note between parties not traders, Held, re- versing judgment of court below, that the question was one which must be governed by the laws of England and may be made by parole evidence. Garden, et al. & Finlay, et al., 8 L. C. J. 139, and 10 L. C. R. 255, Q. B. 1860, 1233, section 1, and 2341 C. C. 2310. If the holder of notes by agreement accepts of the maker policies of insurance covering property destroyed by fire, upon which there is a prima facie cause of action, in discharge of the notes, in the absence of fraud he will be bound by the contract, and the maker, when sued on the notes, need not show that a complete cause of action ex- isted in his favor on the policies, to make his defence availing. Bruns~ wick v. Birkenbend, 83 111. 413. 2311. If a party with full knowledge of all the facts in the case voluntarily pays money in satisfaction or discharge of a demand un- justly made upon him, he cannot afterwards allege such payment ta have been made by compulsion and recover back the money. Murphy, Neal & Co., et al. v. Greighton, 45 Iowa, 179. 2312. Where property belonging to a firm is mortgaged to secure a note executed in the firm name, a partner has a right to invest upon a foreclosure of the mortgage before a personal judgment can be rendered against him upon the note. In case the party shall pay the note executed by the firm, he then becomes subrogated to the rights of the mortgagee, and his lien will be prior to that of a mortgage exe- cuted upon the same property by a grantee of the firm. Warren v. Hoyzle.tt, 45 Iowa, 235. 2313. An indorsement of a partial payment on the back of a note, when the fact of the payment is controverted by the paj'or or his rep- resentative, is not evidence sufficient to suspend the running of the statute of limitations. The burden of proving that the payment in~ 318 MONROE'S DIGEST dorsed on the note was actually made, and at the time it purports to have been made in the indorsement, when the alleged payment is con- troverted, is upon the holder of the note, in a case where he claims that the running of the statute of limitations was suspended by the legal payment. Frazer's AdnCrs v. Frazer & Co., 13 Bush, Ky. 397. 2314. An action lies on a note payable by installments as soon as the first day of payment is passed, but it lies only for the amount of the first installment, each of them being considered as a separate debt. Clarihue v. Morris, 2 Rev. de Leg., 30 K. B. 1820. 2315. A sale of goods upon a mere promise by the purchaser to pay for them out of the avails of their sale, and of a stock of other goods owned by the purchaser, where the transaction is understood by them to create no relation between them but that of debtor and cred- itor, does not give the seller a lien on the goods, after their delivery, or on the avails of their sale, that can be specifically enforced ; nor does it deprive the purchaser, where he owes the seller several debts, of the right to direct, when he makes a payment to such creditor, which debt shall be paid thereby. Stewart \. Hopkins, 30 Ohio, 502. 2216. Where a person owes another several distinct debts, he has the right to choose which debt he will pay first ; and where, at the time of payment, he expressly directs wjiat application is to be made of the pa3 r ment, the creditor, if he retains the money, is bound to ap- propriate it as directed by the debtor. The creditor cannot divert a payment so made by his debtor, from the appropriation made by him, upon mere equitable considerations, that do not amount to an agree- ment between the parties, giving the creditor a right to appropriate the payment otherwise than directed by the debtor, though mere equi- table considerations may control, where the payment is made without designating its application. Stewart v. Hopkins, 30 Ohio, 502. 2317. Payment of part of a debt without release under seal, al- though received in full satisfaction, will not discharge the debt. Hart- man v. Danner, 74 Penn. St. 36. 2318. A bonus is not a gift or gratuity, but a sum paid for services upon a consideration in addition to or in excess of that which would ordinarily be given. Kenicott v. The Supervisors, 16 Wall. U. S. 452. 2319. When a payment is made voluntarily on an unfounded de- mand, or in ignorance of the law or legal circumstances of the case, it cannot be recovered back. Nothing occurring afterwards in the de- termination of new controversies between other parties can be carried back to affect a transaction which when it took place was fair and just. Finnell v. Brew, 81 Penn. St. 362. 2320. When the debts are of like nature, the imputation of pay- ments is made to the debt longest due. Bloom & Co. v. Kern, 30 La. 1263. 2321. Payments made voluntarily by the mortgagee of claims against the estate, which was not necessary for the protection of his own interest in the property, will not entitle him to be subrogated to the rights of the creditors whose liens he discharged. Bayard, et al. -v. McGraw, 1 Bradwell's, 111. App. Rpts. 134. 2322. Partial payments made on a debt past due (Rev. Code, s. J S >0) should be applied first to the extinguishment of accrued inter- OP STANDARD DECISIONS. 319 st, and only the residue applied to the principal. Coleman v. Smith, 55 Ala. 369. 2323. Payments claimed as credits on a debt, and not allowed when judgment was rendered on it, cannot be recovered back after- wards, without an express promise to repay them. Turlington v. Slaughter, 54 Ala. 195. Payment of a debt made by giving several notes, and only a part of the notes are paid, the original debt is re- vived as to the notes unpaid. Crawford v. Roberts, 50 Cal. 236. 2324. The taking of the debtor's acceptances does not operate as payment of the debt in the absence of an agreement that they should be received in payment. Au Sable River Broom Co. v. Sanborn, 36 Mich. 358. 2325. On a suit against six joint and several makers of a note, when some had paid off their shares of principal and interest due at the time paid, by agreement with the payee, the said paj-ments ought to be applied to the pro rata of principal as well as interest due by the makers so paying their shares ; and that the verdict against all the de- fendants for the balance, due after said payments are so credited, is legal and valid, and ought to be upheld, especially where the evidence as to how many of the shares which have been so paid is conflicting, And if some of it was believed by the jury, and the payments had been credited on the note, the verdict would be too large. Donaldson T. Cothran, Adm'r, et al., 60 Ga. 603. 2326. As a general rule, the premium note of an insurance broker, received by the insurers in payment of a policy for his principal, dis- charges the principal from liability to the insurers on account of the premium. But if the policy contain a provision that, in case of loss, the amount of the premium note shall be deducted from the insurance, the insured must submit to the deduction, although he has before paid the amount of the premium to the broker. In case of the death and insolvency of the broker, a court of equity will not compel his admin- istrators to sequester for the benefit of the insurers any sum received by them from the insured on account of premiums, if the company hold the broker's note therefor. Union Ins. Co. v. Grant, 68 Me. 229. 2327. The payment of money cannot be made dependent on the performance of a condition by the party to whom it is to be paid, which condition, by its terms, may not be performed until after the date at which the money is to be paid. Front St. M. & 0. R. R. Co. v. Butter, 50 Cal. 574. 2328. A legal presumption of payment of a bond, given for the payment of money, does not arise from mere lapse of time, where the bond has not been due for twenty years, before commencement of suit by the recovery of the sum thereby due and payable. If a shorter period, even a single day less than twenty years, has elapsed, the presumption of satisfaction from mere lapse of time does not arise. While the mere lapse of twenty years, without explanatory circumstances, af- fords a presumption of law that the debt is paid, even though it be due by specialty, still payment may be inferred by the jury from cir- cumstances with the lapse of a shorter period of time than twenty years. Sadler's Adm'r v. Kennedy's AdmSrx, 11 W. Ya. 187. 2329. Plea of payment tried by a magistrate, and found for de- fendants on the evidence, cannot be changed on appeal so as to defeat 320 MONROE'S DIGEST such defence, by adding usees for whom plaintiffs sue. Copp, et al. v- Lowry & Co., 60 Ga. 637. 2330. Where plaintiff held several promissory notes against de- ceased, all but one being valid, and also held certain shares of mining stock belonging to deceased. Held, that, in the absence of any show- ing to the effect that the deceased ever authorized plaintiff to appro- priate the proceeds derived from the sale of such stock toward the dis- charge of the fraudulent note, the law compelled plaintiff to credit the- money on the valid notes. McCausland v. Ralston, 12 Nevada, 195. 2331. When payment, by savings bank, of deposit of trust fund r to administrator of trustee will discharge the bank. Boone v. Citi- zens? S. Bank, 84 N. Y. 83. 2332. Payments made by a debtor, without special instructions as to their imputation, will be imputed in accordance with the tacit agreement of the parties, as disclosed by their dealings and corre- spondence. A debtor, who receives without objection an account cur* rent from his creditor, which imputes payments made by him to the less onerous part of his debt, is held to ratify by his silence the impu- tation of payment made in the account. McLear & Kendall v. Suc- cession of Hunsicker, 30 La. 1225. 2333. The defendant was indebted to the plaintiff first, as he was member of a firm, and afterwards individually, and gave his note in payment, taking back this receipt : " Received from F. S. Brewer his 90 day note for $300, to be paid at either bank in Portland." There was a contention on the joint account of the defendants, or on the several account of Brewer. Held, that upon this issue it 'was not error to instruct the jury that the receipt was silent and could have no legitimate bearing one way or the other. Hunt v. Brewer, 68 Me. 262. 2334. A. sent B. to do work for C., and A.'s bookkeeper, after the completion of the work, made out, in accordance with his duty, the bill therefor upon one of A.'s printed billheads, which he placed in the hands of B., who demanded and received payment for the work from C. Upon the billhead was printed, in fine type, " All moneys to be paid to the treasurer, and bills to be receipted by him." Held, that the bill so made out by their bookkeeper, and by him put in the hands or Thayer, and by Thaj^er shown to the defendant, was sufficient evidence of Thayer's authority to justify the defendant in paying him the amount of the bill, if the defendant acted in good faith, and without having observed the words in fine print at the top of the bill requiring all moneys to be paid to the plaintiff's treasurer. The case was rightly submitted to the jury. Kinsman v. Kershaw, 119 Mass. 140. 2335. The United States is entitled to priority of payment out of the effects of its bankrupt or insolvent debtor, whether he be principal or surety, or be solely, or only jointly with others, liable, and it is im- material when the debt was contracted. Lewis, Trustee v. United States, 92 U. S. 618. OF STANDARD DECISIONS. 321 PLEDGES. 2336. If a certificate of stock in a corporation, pledged as col- lateral security, is transferred by the pledgee to a creditor of his own r the pledger may treat this as a conversion, and the fact that the pledgee had a greater number of shares standing to his credit on the books of the corporation is immaterial. Fay v. Gray, 124 Mass. 500. 2337. A. borrowed of a bank money on call, and deposited with it as collateral security certain mining stocks, with written authority to sell them at its discretion. The loan remaining unpaid, the bank notified him that, unless he paid it, the stock would be sold. He failed, after repeated demands, to pay it, and they were sold, for more than their market value, to three directors of the bank, and the pro- ceeds applied to the payment of the loan. A., who was advised of the sale, and that enough had been realized to pay his indebtedness, made no objection. The stocks were transferred to the purchasers. Nearly four years after the sale, the stocks having in the meantime greatly in- creased in value, A. notified the bank of his desire and purpose to re- deem them, and subsequently tiled his bill against it, asserting his right so to redeem, and praying for general relief. Held, that he is entitled to no relief. Hayward v. National Bank, 96 U. S. 611. 2338. The subsequent bankruptcy of the pledger of a negotiable instrument does not deprive the pledgees of their right to dispose of it upon his default. Jerome v. Me Carter, 94 U. S. 734. 2339. One who lends money on the pledge of stock held in trust, will be held to have had notice that the trustee was abusing his trust and apptying the money lent to his own purposes, when the certificates of the stock pledged show on their face that the stock is held in trust (though the name of the cestui que trust does not appear), and when the loan was apparently for the private purposes of the borrower, and that fact would have been revealed by inquiry. Gaston v. Am. Ex. Bank, 29 M. J. 98. 2340. To constitute a pledge, there must be a delivery and re- tention by the pledgee of the thing pledged. If a party receives a pledge as collateral security, and in course, or at any time after he re- ceives it, suffers it to go back into the possession of the person by whom it was pledged, the moment that he yields up the possession of it, he yields his right, and any subsequent purchaser, or an attaching creditor, would be entitled to hold it against him. Collins v. Buck, 63 Me. 459. 2341. A pledgee of a chattel may sell his interest in the same, and the owner cannot recover the same of the purchaser without tendering him the sum due thereon, and if the pledgee is suffered to retain possession after tender of the sum due, and a sale is made to an inno- cent purchaser, who has no notice of the fact of its being only a pledge, the latter will acquire the title, even as against the real owner. Brad- ley v. Parks, et al., 83 111. 169. 2342. The pledgee of stock is entitled to the dividends accruing while he holds the stock. Gaty v. Holliday, 8 Mo. A pp. 118. 2343. If the pledger collects the dividends from the corporation 21 322 MONROE'S DIGEST he receives them to the pledgee's use, and an action to recover them will lie by the latter against the former. Ibid. 2344. Though a pledgee cannot purchase the pledge so as to acquire an absolute title without the consent of the pledger, yet such assent may be presumed where the facts are notorious and no dissent is shown. Carroll v. MManphy Savings Bank, 8 Mo. App. 249. 2345. It was held by the Supreme Court of Illinois, that the pledgee of mortgage bonds payable upon condition, like the pledgee of commercial paper, held as collateral security for a debt, has no right, in the absence of an express power so to do, to sell security and apply the proceeds in extinguishment of the debt. But it is his duty to hold the same and collect when due, and apply the proceeds to extinguish the debt secured. Joliet Iron and Steel Co. v. Scioto Fire and Brick Co., 80 Ills. 337. 2346. Where a commercial correspondent advances his own money or credit for the purchase of property and takes the bill of lading in his own name, looking to the property as the means of reimbursement, he becomes the owner instead of a pledgee, and so remains until the mover in the transaction pays the purchase price, and his relation to the latter is that of an owner under a contract to sell and deliver when the purchase price is paid. Moors v. Kidder, 106 N. Y. 32. 2347. The pledge of commercial paper as collateral security for the payment of a debt, does not, in the absence of a special power for that purpose, authorize the party to whom such paper is so pledged, to sell the securities so pledged, upon default of payment either at public or private sale. He is bound to hold and collect the same as it becomes due, and apply the net proceeds to the payment of the debt so secured. A person holding property or securities in pledge, occupies the relation of trustee for the owner, and as such, in the absence of special power to be otherwise, is bound to proceed as a prudent owner would with his own. From the very nature of the case property can only be applied as security through the process of sale. Not so with bonds, mortgages, or promissory notes. Wheeler v. Newboulds, 1 6 N. Y. 392. The pledgee's title to negotiable bonds, he being the bona fide holder of them for value, is good against all the world. Gibson v. Lenhart, Receiver, 111 Penn. 624. 2348. Where the pledger of a chattel, after tendering the sum due the pledgee, takes no steps to recover possession, he will authorize others to regard the pledge as still subsisting, and if purchased by an- other he cannot recover the same in replevin, without tendering the sum due, to such purchaser. Ibid. 2349. Possession by the pledgee is essential to a pledge ; actual possession when practicable; constructive possession when actual pos- session is impracticable. Seymour v. Colburn, 43 Wis. 67. 2350. A pledge is the lien ci'eated by the delivery of personal property by the owner to another, upon an expressed or implied agree- ment that it shall be retained as a security for an existing or future debt. To create a pledge, the pledgee must have the possession and control of the property. Corbett v. Underwood, 83 111. 324. 2351. J. A. H. borrowed $5,000 from the Citizens' National Bank of Baltimore, and deposited as collateral security for the payment thereof a note of W. H. & Sons, and a $100 U. S. bond. Next day, OF STANDARD DECISIONS. 323 lie gave to the bank his individual cbeck on himself for the amount so borrowed, and the bank delivered to him the collaterals before de- posited. Shortly afterward J. A. H. failed, and it was discovered by the bank that he had returned the note to the drawers, W. H. & Sons, who on demand refused to deliver up to the bank the note or its value. In an action by the bank to recover from W. H. & Sons the value of the note, it was held, 2352. 1st. If a bank or other party take a negotiable bill or note before maturity, for consideration and without mala fides, such party acquires a good title, notwithstanding there may have been negligence ; and gross negligence, while it may be evidence of mala Jides, will not alone be sufficient to defeat the plaintiff's title. 2353. 2d. Nothing less than proof of knowledge of facts that show the want of authority on the part of the person transferring the note, will be sufficient to defeat the plaintiff's title. 2354. 3d. The plaintiff is not bouiid to make inquiry, and mere negligence, however gross, not amounting to wilful and fraudulent blindness, while it would be evidence of mala Jides, is not the same thing. 2355. 4th. It makes no difference that the bill or note is only pledged as collateral security, and is not absolutely and unconditionally transferred. 2356. 5th. If the bank knew that the note was not the property of the party offering to deposit or sell it, the taking of the note by way of collateral security for money loaned imparted no title as against the real owner. 2357. 6th. It is a well established principle that possession is necessary to perfect a title by pledge, and it is equally well settled that the delivery back of the possession of the thing pledged, by the act or with the consent of the pledgee, terminates his title, unless it be delivered back for a temporary purpose only or to be held by the pledgor in a new character, such as special bailee or agent. Hooper v. Citizens' National Bank, 47 Md. 88. 2358. Possession is of the essence of a pledge ; and, without it, no privilege can exist as against third persons. This doctrine is in ac- cordance with both the common and the civil law, the Code ^Napoleon (Art. 2076) and the civil code of Louisiana (Art. 3162). Casey v. Cav- .aroc, 96 U. S. S. Ct. 467. 2359. The thing pledged may be in the temporary possession of the pledgor as special bailer, without defeating the legal possession of the pledgee; but where it has never been out of the pledger's actual possession and has always been subject to his disposal by way of col- lection, sale, substitution, or exchange, no pledge or privilege exists as against third persons. Ibid. 2360. Where it was agreed that a' bank should deposit bills and notes with its president and his partner, by way of pledge, to secure a loan made by a third party, and the president delivers them back to the bank officers for collection, with power to substitute other securities therefor, it is not such a delivery and possession as is necessary to create a privilege by the law of Louisiana. Ibid. 2361. The ruling in Casey v. Cavaroc (supra, ^[ 467), as to what constitutes a valid pledge of securities, so far as third persons are con- 324 MONROE'S DIGEST cerned, applies to this case. Casey v. National Bank, 96 U. S. S^ Ct. 492. 2362. Defendant received money of plaintiff to insure him for be- coming bail for another at plaintiff's request, and gave plaintiff his ac- countable receipt therefor. Defendant subsequently loaned the money and received interest for its use. Held, that he was liable for the in- terest thus received, and parol evidence was admissible to show the facts that created his liability. Gilson v. Martin, 49 Rowell,. Vt. 474. 2363. Where an accommodation bill has been pledged for less than its face, and the pledgee transfers it and receives the full value, and the accommodation indorser is compelled to pay the bill, he cannot re- cover the surplus from the pledgee ; such action can only be main- tained by the pledger. Gregory v. Burrall, 2 Wend. 391. 2364. A pledge ceases to be operative when its object is effected, and the whole beneficial interest in the security pledged then becomes absolute in the equitable owner. Ward v. Ward, 37 Mich. 253. 2365. A pledgee of stock who in good faith takes the security, for his benefit in name of an irresponsible trustee for the avowed purpose of avoiding individual liability as shareholder, incurs no liability as such. Anderson v. Philadelphia Warehouse Co., Ill U. S. 479. 2366. H. & Co. advanced money upon C. 0. R. R. Co. stock in good faith, which stock was pledged to them under forged powers of transfer. The railroad company, upon the receipt of the original certif- icates of stock, in like good faith cancelled them, and issued new ones in the name of H. & Co. Held, (1) That as between H. & Co. and the railroad company [the rights of third parties not being involved] the loss must fall upon H. & Co. (2) That the fact of the stock issued to H. & Co. having been subsequently sold by them to third parties r did not affect the case, it appearing that the sale was made by H. & Co. with knowledge of the forgery. (3) That the payment of the dividends on the stock to H. & Co., by the agents of the R. R. Co. r after the company was informed of the foi-gery, had no significance,, and could not estop the company, it appearing that they were not paid by the direction of the company, but through the mistake or inadvert- ence of the agent, in overlooking or failing to observe the directions given by the officers of the company that " they were in litigation, and were not to be paid till ordered by the Court." (4) That the issuing of the certificates to H. & Co., by the R. R. Co., upon the faith of the- forged powers of attorney sent them by H. & Co., did not create an estoppel against the company. Declarations to create an estoppel must be made by a party whose duty it is to know and state the truth, and must be relied on by one who has no other means of information, or is justified in relying upon such declarations. Hambleton & Co. v. Central 0. R. R. Co., 44 Md. &51. 2367. A. deposited with B. certain Canada railway bonds as security for a debt. On bill filed by B. for foreclosure or sale, Held, that B. was entitled to an order for sale only. Jessel M. R.,the plain- tiff, is in a position of a mere pledgee at law of certain chattels, and I do not think that a person in that position has the same right of fore- closure as a mortgagee by deposit of the title deeds of land. The principle upon which the Court acts in the latter case is, that in a. OF STANDARD DECISIONS. 325 regular legal mortgage there has been an actual conveyance of the legal ownership, and then the Court has interfered to prevent that from having its full effect; and when the ground of interference is gone, by the non-payment of the debt, the Court simply removes the stop it has itself put on. Then, when there is a deposit of title deeds, the Court treats that as an agreement to execute a legal mortgage, and therefore as carrying with it all the remedies incident to such a mortgage. None of this reasoning applies to a pledge of chattels; the pledgee never had the absolute ownership at law, and his equitable rights cannot exceed his legal title. There will be an order for sale of the bonds by auction, but, as there seems to be a good reason why the plaintiff should not be forced to part with them, I will give him liberty to bid, he not conducting the sale. Carter v. Wake, 4 Chancery Divi- sion M. R., Feb. 12, 1877, c. 48. 2368. A bill of sale of goods, absolute in its terms, given to pro- tect the vendee against his liability as surety for the vendor, and to secure a debt of the vendor to the vendee, with a verbal agreement that when the vendee should be relieved from his liability and the debt paid, his interest in the property cease, but with no condition of de- feasance in writing, is not a mortgage. As between the parties to the absolute, formal bill of sale, it could not be shown, b}' proof of a parol defeasance, that the conveyance was a mortgage. Pennock \. Mc- Cormick, 120 Mass. 275. 2369. A factor cannot, generally, pledge the goods of his principal for his own liabilities, and is bound to obey the orders of his consignor &s to the terms of sale. Singer Manufacturing Co. v. Hudson, 4 Mo. Ot. Appeals (St. Louis) 145. 2370. The fact that the stock of a corporation is only transferable on the books of the company, does not prevent a stockholder from validly pledging his stock, by merely delivering to his creditor the cer- tificates of his stock. A transfer of the stock on the books is not nec- essary to perfect the pledge. Blonin v. Liquidations of Hart & Hebert. 30 La. 714. 2371. A person holding stock in a fiduciary capacity has, prima facie, no right to pledge it to secure a debt growing out of an inde- pendent transaction unconnected with the trust ; and whoever takes it as security for such debt, does it at his own peril. Prall v. Tilt. 28 N. J. Ch. 479. 2372. Where a bailee of goods for safe keeping merely pledges the same with intent to convert the proceeds to his own use, such pledge amounts to larceny by the pledger, and the pledgee acquires no title as against the owner, though he dealt bona fide with the pledger. Gottlieb v. Hartman, 3 Colo. 53. 2373. When one delivers chattels to another as indemnity for suretyship, the law regards such delivery as a pledge merely. Nor does it alter the case in a Court of Equity that the property is trans- ferred by absolute bill of sale, not even if the contract stipulated that the pledge shall be irredeemable. Ibid. 2374. Where the pledgee of a mortgage note, in whose hands it has been placed to secure a debt due him by the pledger, sells the property mortgaged to secure the note for a sum less than the amount of the note, and immediately resells it for a larger sum than that of 826 MONROE'S DIGEST the note, he becomes liable to the pledgor, not for the price at which, the property was resold, but merely for the amount of the note. Mrs. A. R. Richardson v. Moses Mann, 30 La. 1060. 2375. A consignee who has made advances on cotton shipped to- him, has a right of pledge on it and its proceeds, for the reimburse- ment of those advances ; and until the debt due for those advances is paid, he is not bound to accept or pay an}' drafts drawn on him by the consignor against said cotton, at or about the time it was shipped, in favor of a third person who had discounted the drafts for the con- signor, and thus enabled the latter to buy the cotton shipped to the consignee. Thos. E. Helm, et al. v. Meyer, Weis & Co., 30 La. 943. 2376. A pledgee who was surety on a promissory note transferred the property to the payee for the purpose of discharging the debt. Held, that the transfer did not change the status of the property, and, that the pledgor had the right to redeem, even after the maturity. Morgan^ et al. v. Dod, 3 Colo. 551. 2377. A pledgee can sell only, and for the purpose of applying the proceeds to the extinguishment of the debt. Such sale must be at public auction, after due notice to the pledgor or owner. Ibid. 2378. Where the subject matter of a pledge is divisible, the pledgee has no right to sell more than is necessary to satisfy the debt ;. and if he does so, is responsible to the pledgor for the damage he may sustain. Fitzgerald v. Blocher, 32 Ark. 742. 3379. The acceptance by the pledgor of the surplus arising from an illegal sale of the articles pledged, is no waiver of his rights to' damages resulting from the sale. Ibid. 2380. Where the pledgor, at the time of making the pledge, waives notice of sale, he cannot, after the sale of the pledged property, com- plain of a want of notice. Ibid. 2381. Where a pledgee of scrip sells more than is necessary to satisfy his debt, and pays the surplus to the pledgor, who buys other script to replace what has been sold, the measure of damages is the difference between the price for which the excess sold and that paid by the pledgor to replace it. 1 bid. 2382. Where one deposits United States " five twenty " bonds for safe keeping with a banking institution, and the cashier of such insti- tution pledges them, the pledgee, acting in good faith, takes a good title ; and the recovery of the bonds through the fraud and bad faith of such cashier does not divert the title out of the pledgee and revert it in the depositor. Ringling v. Kohn, et aZ., 4 Mo. Appeal Reports^ (St. Louis) 59. 2383. There can be no valid pledge of a mortgage, or vendor's privilege, by mere agreement of parties to that effect, unaccompanied by an actual or symbolical delivery of possession. Sevin & Oourdain r in Liquidation v. Theogene Caillonet, 30 La. 528. 2384. The assignee of a note, held as collateral securitj^ for a debt due from the assignor, has no power to deal with it, except to accom- plish the purpose for which he holds it. He cannot bind the assignor by a contract with the maker for forbearance. His liability to perform such contract is dependent upon the will of the assignor, who may pay his debt and take back the collateral at any time ; and, therefore, a promise of the maker to pay a larger interest, in consideration of such; OF STANDARD DECISIONS. 327 forbearance, is without consideration and not binding upon him. Key v. Fielding, 32 Ark. 56. 2385. Such assignee is a trustee for his assignor, and all profit, benefit, or advantage made by him, by his dealing with the note, be- longs to the assignor, and not to himself, and must be applied to the satisfaction of the assignor's debt, and the excess, if any, paid to the assignor. Ibid. 2386. One to whom a promissory note is pledged as collateral security for a debt, unless specially authorized, cannot sell the same on default, but is bound to collect it at maturity, and apply the proceeds to the debt. Joliet Iron Co. v. Scioto Fire Brick Co., 82 111. 584. 2387. Personal propert}' specifically pledged for a particular loan cannot, in the absence of a special agreement, be held by the pledgee for any other advance. Duncan v. Brennan, 83 N. Y. 487. 2388. Nor can it be so held although the pledgees are bankers ; the general lien which bankers hold on property deposited with them for a balance due on general account cannot be invoked. Duncan v. Brennan, 83 N. Y. 487. 2389. Where a bond and mortgage are assigned as collateral for a loan, with an agreement upon the part of the lender that he will, on payment of the mortgage pay to the borrower the excess of the prin- cipal over and above the amount of the loan, and without any agree- ment as to a foreclosure, and where the mortgage is foreclosed by the lender without making the borrower a part}' thereto, or to any other proceedings to foreclose him, and the mortgaged premises are bid in by the lender, the equitable interest which the borrower retained in the mortgage, attaches to the land, and he is entitled to the surplus, in case of a sale thereof bv the lender for more than the amount of his claim. Dalton v. Smith ,"86 N. Y. 176. 2390. The assignment merely of an expected surplus in prop- erty pledged to secure a usurious loan does not entitle the assignee to avoid the lien or to claim the property free therefrom. Dalton v. Smith, 86 N. Y. 176. POSSESSION. 2391. Possession by a man or his tenant is notice of the title, equitable as well as legal, under which he claims the property. Wan- ner v. Sisson, 29 N. J. 141. 2392. No length of constructive possession will ripen a defective title to land into a good one; the possession must be actual and con- tinuous. Where there is no actual occupation of land shown, the law carries the possession to the real title. A possession of land under color of title must be taken by a man himself, his servants or tenants, and by him or them continued for seven years together. Therefore, where in an action to recover land it appeared that the plaintiff under color of title had made occasional entries upon the land at long inter- vals, for the purpose at one time of cutting timber, at another of mak- ing bricks, etc. Held, that the plaintiff was not entitled to recover. Williams v. Wallace, 78 N. C. 354. 328 MONROE'S DIGEST 2393. Where A. enters into possession of land, the property of B.'s wife, under a deed from B. alone, the possession of A. is in law the possession of the wife, and enures to her benefit. Dams v. M. Arthur, 78 N. C. 357. 2394. Possession of a note, bond or bill, unattended by circum- stances which, in a reasonable mind, ought to excite suspicion or dis- trust, or put a party on inquiry, is prima facie evidence of ownership in the holder, and a purchaser from such a holder will be protected un- til his purchase is assailed by one who can establish a legal title to the instrument. Garvin v. Wiswell, 83 111. 215. POWER. 2395. A power committed to two or more persons, unless it other- wise appear from the instrument by which it is delegated, is properly executed only by the joint act of all who have accepted the trust. Giddings v. Butler, 47 Texas, 535. 2396. If a grantor has power to sell, and sells, his act will pass title, whether he refers to the power or not. His act would pass his own and the interest of his principal. Hough v. Hill, 47 Texas, 148. 2397. Where a party alleges that a deed executed by his attorney, under a power to convey is invalid for matters not apparent on its face, the burden of proving them is on such party. Clements v. Mach- eboPMf, et al., (2 Otto,) U. S. S. Ct. Rpts. 92, 418. 2398. A deed of conveyance executed in his own name by one having a special power of attornej', " for me and in my name, place and stead to grant " etc., and this without referring to or reciting the warrant in the deed, conveys no title. Bassett v. Hawk, 114 Penn. 502. 2399. An attorney who makes a surrender ought to make it in the usual form, as by the rod, etc., according to the custom of the manor, and he ought to make it in the name of the copyholder, not in his own name. Kennedy v. Sheer, 3 Watts. 95 ; Hejferman v. Ad- dams, 7 Watts. 116; Shokeeker v. Farmers 1 Bank, 8 Watts. 191. 2400. A special power of attorney can be executed in no other manner than that prescribed in the warrant itself. Bassett v. Hawk, 114 Penn. 502. PREFERENCE. 2401. A sale of property by an insolvent debtor, made in good faith, to pay a particular creditor of his, to the exclusion of others, without any intention to defraud, but simply to prefer one creditor to another, although the purchaser may have had full knowledge of such intent on the part of the vendor, is a valid sale. Avery v. Eastes, 18 Kansas, 505. 2402. A bond given by a debtor in failing circumstances, covering all his property for the benefit of preferred creditors, is contrary to the policy of the statute against fraudulent insolvency. Comly v. Waters, et al., 2 Del. 72. OF STANDARD DECISIONS. 329 PRESUMPTIONS. 2403. In the absence of proof to the contrary, it will be presumed that notaries of other States have no greater powers than are possessed by those of this State. Me Lear & Kendall v. Succession of Hun- sicker, 29 La. 539. 2404. Presumption is that drawer of draft is solvent; also, that common law rule as to charging drawer prevailing here prevails in an- other State. First Nat. Bank v. Fourth Nat. Sank, 77 N. Y. 320. 2405. In respect to a forged instrument there is no presumption of delivery at its date or at any particular time. Bern. Paper Co. v. O' Dougherty, 81 N. Y. 424. 2406. Where a purchaser has notice of the facts upon which an adverse claim depends, he is deemed to have notice of the consequences of those facts. Guyler v. Ferrill, 1 Abbott, U. S. 169. 2407. Mortgage presumed paid after lapse of twenty years. Hughes v. Edwards, 9 Wheat. U. S. 489. 2408. No presumption of payment can arise from lapse of time against a mortgagee or his assigns in possession. Brobst v. Brock, 10 Wall. U. S. 509. 2409. The presumption is that letters, mailed to a person directed to him at his place of residence, were received by him. Oregon S. S. Co. v. Otis, 100 N. Y. 446. 2410. A wife's separate and personal possession of specific articles of personal property draws after it the presumption of ownership. Whiton v. Snyder, 88 N. Y. 299. PRINCIPAL AND AGENT. 2411. S. being employed by the respondent to carry on his busi- ness, credited the respondent in an account with the appellants with the sum of 5,800 taels, which he falsely represented to have been ad- vanced in the ordinary course of business on certain goods intended for shipment. He then drew a bill in the name of the respondent's firm on the appellants for the balance of account, and having received the proceeds of such bill, including the said 5,800 taels, appropriated them to his own use. On a special case submitting whether the re- spondent was liable to the appellants in the said sum with interest from date of receipt by S., Held, that the proceeds of the bill having been received as aforesaid by S., acting throughout within the scope of his authority, belonging to the respondent, and that he having thus been paid 5,800 taels without consideration, the appellants were en- titled to recover back the same. Barwick v. The English Joint Stock Bank, Law Rep. 2 Ex. 259, and Mackay v. The Commercial Bank of New Brunswick, Law Rep. 5 P. C. 412; approved. Swive v. Fran- ks, 41 Canada Law Rep. 3 P. C. 106. 2412. Where a secret gratuity is given to an agent with the inten- tion of influencing his mind in favor of the giver of the gratuity, and the agent, on subsequently entering into a contract with such giver on 330 MONROE'S DIGEST behalf of his principal, is actually influenced by the gratuity in as* senting to stipulations prejudicial to the interest of his principal, al- though the gratuity was hot given directly with relation to such par- ticular contract, the transaction is fraudulent as against the principal,, and the contract is void at his option. Smith v. tiorby, 3 App. Cases, Eng. (41-42 Vic.) 552. 2413. One purchasing goods for another makes himself personally liable, if he contracts in his own name without disclosing his principal ;. and this, although the seller supposes the purchaser is acting as agent ; it is not sufficient to clear the agent from liability that the seller has the means of ascertaining the name of the principal; he must have actual knowledge. Cobb v. Knapp, 7J N. Y. 348. 2414. Also, held, that a subsequent disclosure of the principals by defendant, and the commencement of an action against them by plain- tiff was not conclusive of an election to hold them only responsible ;. that the fact of commencing such action, and the statements in the complaint, were proper to be considered by the jury on the question of knowledge as to the principals, but did not operate as a legal dis- charge. Ibid. 2415. Where agents, without express authority, assume to act for their principals, the latter will be bound, if, with knowledge of such assumptions, they acquiesce in and receive the benefit of such acts ; and from a continuous course of such dealings, the public will be at liberty to deal with the agents as having original authority to perform the acts, and the principals will be estopped to try it. Cooperative As- sociation v. McGonnico, 53 Miss. 233. 2416. Where, at the time of an agreement for a loan to be secured by bond and mortgage, at the request of the borrower, and upon his agreement to pay interest from that time, the money was left in the hands of an agent of the lender until the borrower could perfect the security, held, that the agreement and the retention of the interest in pursuance thereof did not constitute -usury. Bevier v. Covell, 87 N. Y. 50. 2417. Also, held, that the fact was immaterial that the agent, with- out authority from his principal, used the money on his own account. Bevier v. Govell, 87 N. Y. 50. 2418. Ratification by a principal of his agent's acts is only bind- ing when made on full knowledge of the facts as they actually exist, not merely as the agent believed them to exist. Bank of Owensboro* v. Western Bank, 13 Bush, Ky. 526. 2419. A principal is liable, as a general rule, for such wrong of his agent as is committed in the course of his employment and for the benefit of the principal ; and this, although no express command or privity is proven. F. Svgs. Instn. v. Nat. Bank, 80 N. Y. 162. The fact that an agent, intrusted with money of his principal to invest, ex- acts a bonus for himself, without the knowledge or assent of his prin- cipal, as a condition of making a loan, does not establish usury. The principal is not liable for such an authorized act of the agent, in the absence of proof that he received a portion of the bonus or in some form reaped a benefit or advantage from the same. Van Wyck v. Waiters, 81 N. Y. 352. 2420. An agent employed to drive cattle, to whom the possession OF STANDARD DECISIONS. 331 thereof is intrusted by the principal, cannot deliver such possession to a subagent appointed by himself. Underwood v. Birdsell, 6 Mont. 142^ 2421. When principal not chargeable with notice of fact which came to knowledge of agent while not engaged in business of agency. A. S. Bank v. Savery, 82 N. Y. 291. 2422. Where an insurance company directs its agent not to de- liver policies until the whole premiums are paid, " as the same will stand charged to their account until the premiums are re- ceived " and the agent did, nevertheless, deliver a policy giving a credit to the insurer and waiving a cash payment, Held, that the company, it being a stock company, was bound. Miller v. Life Ins. Co., 12 Wall. U. S. 285. 2423. Where an instrument, executed by an agent, shows on its- face the names of the contracting parties, the agent may sign his own name first and add to it, " agent for his principal," or he may sign the- name of his principal first, and add, by himself as agent. Smith V- Morse, 9 Wall. U. S. 77. 2424. It seems that where, by the agreement, the agent is to ap- ply the proceeds of sales to the payment of drafts so drawn, as they mature, he may not hold goods as security against drafts which he can- pay with funds of his principal in his hands applicable to that pur- pose, and the principal, after paying all drafts outstanding, save an amount no greater than the proceeds of sales in the agent's hands, may claim and take possession of the goods. Nagle v. McFeeters, 97 N. Y. 196. 2425. It seems that where, by the agreement, the agent is to ap- ply the proceeds of sales to the payment of drafts so drawn, as they mature, he may not hold goods as security against drafts which he can pay with funds of his principal in his hands applicable to that pur- pose, and the principal, after paying all drafts outstanding, save an amount no greater than the proceeds of sales in the agent's hands r may claim and take possession of the goods. Nagle v. McFeeters, 97 N. Y. 196. PRINCIPAL AND SURETY. 2426. Where the real estate of the surety has been levied upon and sold at sheriff's sale, on an execution issued upon a judgment rendered against the principal and surety in a delivery bond, in an action thereon for a breach of its conditions, the latter may, in an action against the former, recover as for money paid to his use. Col' lins v. Paris, 57 Ind. 151. 2427. A bond executed in blank by H. and sureties to enable him to raise $300, by loan from B., was filled up and delivered, without their knowledge, to C. and N. for $354.48, in payment of a debt, Held, fraudulent and void as to the sureties. A bond executed in blank, on a specific purpose, cannot be otherwise filled up, without authority of the obligors. Such authority must be proved affirma- tively, to sustain the bond. Hastings, et al. v. ClendanieL et a/., 2 DeL 165. 332 MONROE'S DIGEST 2428. A cashier of a bank, by virtue of bis office, is not author- ized to release a surety upon a note or bill belonging to the bank with- out payment. Merchants' Bank v. Rudolf, 5 Neb. 527. 2429. The fact that a bank holds other securities for the payment of a note, to which it might resort, is no ground for the release of surety. Statements made by a cashier at casual interviews, away from the bank, as to payments having been made upon its securities r are not binding upon the bank. Ibid. 2430. If the cashier, on inquiry by a surety who is not an officer of the bank, state that the note upon which he is surety has been paid by the principal, the bank is estopped from denying the truth of such statement, when to do so would entail a loss upon the surety, which he would have guarded against had it not been made. But this rule is not applicable where the surety is one of the directors of the bank, for he has the means of knowledge of the true condition of its affairs, and is conclusively presumed to know whether payment has been made or not. Ibid. 2431. And where a firm is surety, and one of its members is also a member of the board of directors of the bank, all the members of such firm are affected with the notice, which the one who is director is presumed to have. Ibid. 2432. A release of the principal debtor, against whom, with the surety, a joint judgment has been obtained, operates as a release of the surety. Anthony v. Capel, 53 Miss. 350. 2433. An agreement between the holder and principal maker of a note that the latter may retain the sum due for a definite time, upon his promise to pay usurious interest, will discharge a surety on said note not consenting to such contract of forbearance, but in the absence of such a contract, payment of the stipulated interest will not dis- charge the surety, even though, because of such payment, the creditor continues his indulgence to the debtor. The agreement to forbear for & definite period, in consideration of the payment of usurious interest, releases the non-consenting surety. Brown \. Prophit, 53 Miss. 649. 2434. In an action upon an administration bond, under R. S., ch. 72, 9, a judgment against the administrator, in favor of the cred- itor of the intestate, for whose benefit this suit is brought, does not estop the sureties from showing that, prior to the commencement of the action in which judgment was recovered, the administrator's au- thority had become extinguished. When the plaintiff relies upon such judgment, with a demand and refusal to pay, or to show property to pay the execution, and a return of nulla bona thereon, proof that the administrator's authority had become extinguished before the creditor brought his original suit will defeat the action upon the bond against the sureties. Bourne v. Todd, 63 Me. 427. 2435. A surety cannot be held on a bond which he only signed upon a condition that was not performed. A bond does not take effect' from the signing, but only from delivery or filing. A bond dated and made to take effect upon a week day will protect an obligee who had no notice that it was actually signed on Sunday. Hall, et al. v. Parker, et al., 37 Mich. 590. 2436. The execution of a deed of trust by a principal debtor, whereby property not subject to execution was made liable for its pay- OF STANDARD DECISIONS. 333 jnent, is a good consideration for a promise to extend the time for pay- ment of the note, and such an agreement will discharge the surety. Semple, et al. v. Atkinson, et al, 64 Mo. 504 ; Smarr v. Schnitter, 3S Mo. 478. 2437. P. and K., a firm of which defendant was a partner, exe- cuted to a State bank a written undertaking to be " responsible for the payment of any sum not to exceed" $5,000, which W. might require of said bank " for legitimate business purposes." In an action upon the guaranty, it appeared that loans were made which were renewed from time to time ; that defendant knew of, and assented, in writing and orally, to the renewals. Held, that he was concluded thereb}' from claiming that the sureties were discharged by extension of time. City NaCl Bank v. Phelps, 86 N. Y. 484. 2438. The U. S. S. Co., a corporation organized in this State, of which one W. was one of the principal promoters and organizers, and a large stockholder, proposed to the citizens on Sandusky, Ohio, that it would erect a rolling mill at that place, if they would donate the real estate and loan to it $150,000 upon its bonds, secured by the guar- anty of W. and other stockholders. The proposition was accepted and complied with, and W., with the other designated stockholders, exe- cuted a joint guaranty of the payment of the bonds. The company and the guarantors, including W., thereafter became insolvent, and the latter executed a general assignment for the benefit of creditors, and subsequently died before the bonds fell due. In an action brought to- compel an accounting on the part of the assignees of W., and a dis- tribution of the funds in their hands, held, that the liability upon the guaranty was not extinguished by his death ; that the guarantors did not act as mere sureties, but secured an individual benefit, and were under a moral obligation to pay ; and so that there was a just founda- tion for a court of equity to intervene and save the obligation of the guaranty, and, therefore, that the holders of the bonds were entitled to share pro rata with the other creditors in the assigned estate. Rich- ardson v. Draper, 87 N. Y. 337. 2439. The death of a joint obligor onlj r discharges his obligation in a case where it appears that he was a mere surety, who received no- benefit whatever from the joint obligation. Richardson v. Draper, 87 N. Y. 337. 2440. It seems, that in an action against a principal and surety, insolvency of the plaintiff is a sufficient ground in equity for the allowance of a set-off existing in favor of the principal against the plaintiff; this equitable right is strengthened where the principal is also insolvent. Coffin v. McLean, 80 N. Y. 560. The liability of a surety is limited to the express terms of the contract; his obligation, so far as warranted by the terms employed, should be construed strictly and favorably to him. Ward v. 8taU, 81 N. Y. 406. 2441. Bonds taken by an officer in the course of official duty, to and for the benefit of another, are not open to the objections to bonds taken by an officer, to and for himself, which must more close!} 1 follow the statutory requirement ; in the former case the substance is looked for more than the form, although it be a surety that is to be held. Gerould v. Wilson, 81 N. Y. 573. 2442. Where the engagement of a surety is for the future, he can- 334 MONROE'S DIGEST . . not be made liable for the past, as to which he has not covenanted. Thomson v. MacGregor, 81 N. Y. 592. 2443. Q. having been appointed receiver of an insolvent savings bank executed his bond with O'D. as surety. Q. entered upon his duties, but subsequently by leave of the court resigned, and a new re- ceiver was appointed. An order of Special Terra was made settling the accounts of Q., as receiver, which contained a clause authorizing O'D. to appeal on stipulating to be bound by the decision thereon. O'D. appealed to the General Term ; making the required stipulation, which was accepted by the opposite party. The appeal was heard without objection to the right of O'D. to appeal ; the order appealed from was affirmed, with a direction that O'D. pay to the new receiver the amount of the bond. Held, that O'D. was entitled to appeal to this court. In re Rec'rship of Guardn. Savings Instn., 78 N. Y. 408. 2444. It seems that one of several original debtors may so con- tract with the others for their assumption and payment of the common debt as to acquire the rights of suretj 7 , upon notice of the new arrange- ment being given to the creditor. Palmer v. Purdy, 83 N. Y. 144. 2445. Such notice, however, must be definite and distinct, and so given as to fully and fairly apprise the creditor of the changed atti- tude of the debtor claiming the rights of a surety. Palmer v. Purdy, .83 N. Y. 144. 2446. Plaintiff leased certain premises to a firm. Two of the partners subsequently left the firm and the premises, the parties re- maining having by valid contract assumed and agreed to pay the rent thereafter accruing. In an action brought against the original mem- bers of the firm to recover such rent, it appeared that plaintiff was in- formed that the two partners were going out, and that the others were to remain and would pay the rent ; but it did not appear that he was advised of any agreement by which those remaining were bound to pay the rent, or by which the legal relation of the retiring members of the firm to the common liability was changed. Held, that the evi- dence failed to establish the right of the retiring partners to be treated as sureties. Palmer v. Purdy, 83 N. Y. 144. 2447. S. and 0., the defendants who continued the business, gave their notes to plaintiff for rent in arrears. These were accepted by him upon the express stipulation that the liability of G. and P., the other defendants, should not thereby be released, and with the reserva- tion of his rights and remedies against them. Held, that the arrange- ment was not such an extension as discharged G. and P., even if the rights of sureties were accorded to them. Palmer v. Purdy, 83 N. Y. 144. 2448. Upon an appeal from a judgment against defendant W., in an action for the recovery of possession of real property, he gave an undertaking to stay proceedings, in the form prescribed by the Code of Procedure ( 338), containing among other things this provision, that " during the possession of such property by the appellant he will not commit or suffer to be committed any waste thereon." The judg- ment appealed from was affirmed by the General Term in September, 1865, and in October, 1865, W. appealed to this court, giving the requi- site undertaking with new sureties. While this appeal was pending W., who remained in possession, committed waste. In an action on OF STANDARD DECISIONS. 335 the undertaking given on appeal to the General Term, held, that the surety was liable for the waste so committed ; that his liability was not limited to waste committed pending the appeal to the Supreme Court. Church v. Simmons, 83 N. Y. 261. 2449. It seems that if after judgment of affirmance the defendant continued in possession by permission of the plaintiff under an agree- ment constituting the relation of landlord and tenant, the obligation of the surety would not extend to subsequent acts of the tenant. Church v. Simmons, 83 N. Y. 281. 2450. It seems also that after such judgment the surety would have been entitled to call upon the plaintiff to execute the judgment and relieve him from liability ; and unreasonable delay in proceeding after such notice would discharge the sureties from liability as to sub- sequent acts. Church v. Simmons, 83 N. Y. 261. 2451. It seems also that the sureties in the first undertaking would be entitled to resort for their indemnity to the undertaking on the second appeal. Church v. Simmons, 83 N. Y. 261. 2452. Mere indulgence by a creditor of the principal debtor will not discharge a surety. To work such a discharge there must be an agreement for an extension made without the consent of the surety, which precludes the creditor meanwhile from enforcing the debt against the principal. Powers v. Silberstein, 108 N. Y. 169. PRIVILEGE. 2453. If the proceeds of the movables and unmortgaged property of a succession do not suffice to pay off its privileged debts, those debts must be first preferred for payment to the proceeds of its property in- cumbered by the youngest mortgage. The vendor's privilege is only operative as to third persons from the moment of its registry. The vendor's privilege will not take rank over a mortgage recorded before its own registry, unless its own registry was made on the day of the sale. To maintain his privilege on property sold by him, as to third persons, the vendor must record the sale. 2454. Seizure of property under the execution of a valid judg- ment, gives a lien on the property, superior to any privilege recorded against it subsequent to the seizure. O^Hara v. Mrs. E. Booth and Connell, 29 La. 817. PROFITS. 2455. Probable profits are not a proper basis upon which to esti- mate damages, and therefore, under the testimony as reported in this case, nominal damages only can be recovered. Winslow v. Lane. 63 Me. 161. 2456. Property purchased by a wife on the credit of her separate estate, or of her earnings in its management, is not liable for the debts of the husband. Silvens v. Porter, 74 Penn. St. 448. 336 MONROE'S DIGEST PROMISE. 2457. The holders of a note demanded payment from the en- dorser, who replied that he " had not expected to have it to pay, and that it was impossible to pay it at present." Held, insufficient as a promise to pay. Cromer v. Platt, 37 Mich. 132. 2458. As long as the creditor can maintain an action on the original promise, a new promise, without additional consideration, will not support an action. Ogden, Etc. v. Redd, 13 Bush, Ky. 581. 2459. A promise made to a debtor, for a valuable consideration, to pay his debt to a third person, is not a promise to answer for the debt of another person, within the statute of frauds, which applies only to promises made to a creditor ; and such promise made to the debtor need not be in writing. Centre v. McQuesten, 18 Kansas, 476. 2460. It seems a promise to pay a debt of another antecedently contracted, where the primary debt still subsists, is original and so- valid within the statute of frauds, although not in writing, when it is founded on a new consideration moving to the promisor and beneficial to him, and when by the promise he comes under an independent duty of paying, irrespective of the liability of the principal debtor. White v. Kintoul, 108 N. Y. 222. 2461. If a man promises one to see him harmless should he become surety for a third person, or should he do anything else, this is a mere arrangement between promisor and promisee. The promise is to pay what the person to whom it is made may become liable for not " an- other's " debt, but his. Therefore, it is not within the statute of frauds, and is valid though oral. Aldrich v. Ames, 9 Gray, Mass. 76 ; Dunn, v. West, 5 B. Monr. Ky. 376 ; Lucas v. Chamberlin, 8 B: Monr. Ky. 276 ; Perley v. Spring, 12 Mass. 297 ; Holmes v. Knights, 10 N. H. 175 ; Blount v. Hawkins, 19 Ala. 10 : Perkins v. Littlefield, 5 Allen, Mass. 370. PROMISSORY NOTES. 2462. In an action against an indorser of a promissory note, the defendant testified that he said to the plaintiff's agent that he doubted if the maker would pay the note ; that he would like to arrange it by giving a new note, making himself promisor ; if he would make a new note, he would sign it; if he would send up the old note, he would waive demand and notice upon the back of it ; and on cross-examina- tion he testified that he did not want to have the note protested ; that he wanted to save the expense of demand and notice, and though, if the note was protested, he would have to pay it immediately, and that was the reason why he offered to give a new note. Held, that a ruling that, as matter of law, on this evidence the defendant waived demand and notice was incorrect. Batt v. Chase, 122 Mass. 262. 2463. A promissory note made by one member of the firm, in its name, can be enforced against the partnership by the holder thereof, if he has no actual knowledge, suspicion or cause of suspicion, of any OF STANDARD DECISIONS. 337 fraud upon the partnership in the making of the note. Blodgett v. Weed, 119 Mass. 215. 2464. Possession of a promissory note is prima facie evidence that the bank is the owner thereof, and in absence of proof to the con- trary is conclusive ; and there is no denial of the validity of the note, so it makes no difference to the defendant who holds the note, as long as he owes it to some one. Fletcher v. Fletcher, 29 Vt. 98. 2465. Action. A suit will lie against the administrator of a de- ceased maker of a promissory note, made jointly by two, during the life of the other maker. Thompson v. Johnson, 40 N. J. Law, 220. 2466. A promissory note payable in bank, indorsed for value, be- fore maturity, in the usual course of business, to a bona fide holder, is not subject in his hands to the same defences as a promissory note pay- able in bank. Bremmerman v. Jennings, 60 Ind. 175. 2467. Upon demand and refusal of payment of a promissory note on the last day of grace, a right of action accrues at once to the holder, and the Statute of Limitations begins to run from the date ; but if there is no demand, the cause of action does not accrue until the succeeding day. Holland v. Clarke, 32 Ark. 697. 2468. A promissory note of a turnpike company is not void be- cause made before it has filed a copy of its by-laws, as required by statute with the county recorder. Forbes v. San Rafael T. Co., 50 Cal. 340. 2469. The makers of a promissory note cannot annul a judgment obtained against them on said note by the administrator of a succes- sion, on the ground that the note did not belong to the succession, or on the ground that the administrator was not qualified to act as such. Maraist v. Guilbeau, 30 La. 1087. 2470. The maker of a promissory note, indorsed in blank, and acquired by the holder before its maturity, cannot resist the pa3 T ment of the note on the ground that the holder is not the real owner, unless he alleges and shows that he has good defences or claims against the real owner. An agent, in whose hands a note has been placed for collection, may sue on it in his own name. George M. Klein v. Mrs. Buckner, et al, 30 La. 680. 2471. Parol evidence of the indorsement of a promissory note, without the production of the note, held inadmissible, though not of- fered in order to charge the indorser. De Pusey v. Du Pont, et al., 1 Del. Chancery, 77. 2472. Before the maker of a lost note, or mislaid negotiable note, which was transferred before its maturity, can be made to pay it, he is entitled to be indemnified against its subsequent appearance. Nalle & Cammack v. Conrad, 30 La. 503. 2473. Negotiable securities stolen, and afterwards sold by the thief, the owner thereof may follow and claim the proceeds in the hands of the felonious taker, or of his assignee, with notice, and this right continues and attaches to any securities or property in which the proceeds are invested and identified, and the rights of a bona fide pur- chaser do not intervene. The law will raise a trust in inmtum out of the transaction, in order that the substituted property may be subjected to the purposes of indemnity and recompense. Newton v. Porter, 69 JS. Y. 133. 22 338 MONROE'S DIGEST 2474. The debtor of a bank, of which A. was cashier, transferred a negotiable note, in payment of his indebtedness, to A. by special in- dorsement, and thereupon the bank, to enable A. to bring suit thereon, assigned its interest in the note to him. Held,tha,t A. might maintain an action on the note in his own name notwithstanding he may be ac- countable to the bank for the proceeds when collected. White, Bon- ner & Wright v. Stanley, 29 Ohio, 433. 2475. Such indorsement and transfer having been made before maturity of the note, the same in the hands of A. is not subject to any defence of which neither he nor the bank had notice at the date of the transfer. Ibid. 2476. The signer of a promissory note, which reads that " we promise in solido" etc., will be held bound as a solidary debtor on such note, unless he proves that he has been legally released from his obligation. Wm. H. Boullt v. Jerome Sarpy, et al. 30 La. 494. 2477. To defeat the title of an innocent purchaser to a note, on the ground of inadequacy of the price paid for it the inadequacy must be such under the circumstances as to impeach the good faith of the purchase. Rooker v. Rooker, 29 Ohio, 1. 2478. When the purchaser of such note receives it in part pay- ment, of property sold, his title to the note is not affected by the fact that he retains the title and possession of the property sold as security for the unpaid purchase money. Ibid. 2479. Where one of several accommodation makers of a joint and several promissory note paid the same, and subsequently transferred and delivered it for a valuable consideration to a third person, held, that, although the note, as an obligation, was extinguished by the pay- ment, yet it remained in the hands of the maker who paid it, the evi- dence of his cosureties; and that the delivery raised a legal presump- tion of an intent to pass, and did pass this right to the transferee. Dillenbeck v. Dygert, 97 N. Y. 303. 2480. A statement in promissory note that it was given for money loaned is not conclusive ; it is open to either party to show the actual consideration. Miller v. McKenzie, 95 N. S. 575. 2481. A promissory note made by D. payable to his order at de- fendant's bank was for a valuable consideration indorsed by him and de- livered to B., at whose request it was discounted by defendant upon pledge as collateral of a $500 government bond belonging to plaintiff. At about the maturity of the note defendant, without the consent or knowledge of B., or plaintiff, upon receipt of a new note, executed and indorsed by D. for the same amount which contained the statement " U. S. bond $500 collateral security " and upon payment of the interest, canceled the first note and surrendered it to D. Before maturity of the second note D. absconded ; it not having been paid when due, de- fendant, without notice to A. or plaintiff, sold the bond in open market, appropriating sufficient of the proceeds to pay the note. In action for the conversion of the bond, held, that defendant was liable ; that be- fore retaining the bond upon a new contract it should have required the consent of B. Burnap v. Nat. Bank, 96 N. Y. 125. 2482. L., plaintiffs intestate, executed, for the accommodation of E., a note for $2,180, payable to the order of the latter, who indorsed and negotiated it, receiving the proceeds. E. gave to L., in exchange, OF STANDARD DECISIONS. 339 his own note for the same amount. Not being able to meet the note so executed by L. at maturity, E., in pursuance of an agreement be- tween them, paid to L. $1,180, and transferred to him a note made and indorsed by defendants, for $1,000 not tben due, whereupon L. de- livered up to E. his note and paid the accommodation note when due, which was taken up and canceled. E. had received before the transfer $420 to apply on the $1,000 note, of which L. had no notice or knowl- edge when he received it. In an action upon the note, held, that L. was a bona fide purchaser for value without notice, and so was en- titled to be protected against the equities of the defendants, and the payment was no defence. Ward v. Howard, 88 N. Y. 74. 2483. A promissory note dated July 21, 1874, was by its terms made u payable on demand after date " at a bank, with interest " after maturity." The note was indorsed and transferred by the payee on the day of its date. It was presented for payment on the first and fourth days of February, 1878, payment demanded and refused, and on the fourth it was protested and the indorser notified. In an action upon the note, held, that it was the intent of the parties that the note should be presented for payment, if not immediately, at least within a very short time ; and that the delay in this case was such as to dis- honor the note, and the iudorser was discharged. Grim v. Stark- weather, 88 N. Y. 339. 2484. Where the transfer of a note is upon the last day of grace it is before maturity ; the maker has the whole of that day within which to pay. Contl Nat. Bank v. Townsend, 87 N. Y. 8. 2485. In a suit at law, by the payee of a promissory note or his representative, against the maker, evidence is inadmissible to show that the note was not intended to be a promissory note, but was given as a memorandum not to be enforced against the maker. Burnes v ticott, 117 U. S. 582. 2486. The making of a champertous, and therefore under the law of the State void and illegal, contract for the prosecution of a suit to collect a promissory note, cannot be set up in bar of a recovery on the note. Burnes v. Scott, 117 U. S. 582. 2487. That the maker of a promissory note had, contrary to the real fact, confessed, in a pending garnishment proceeding, the court, held that such confession should be disregarded in determining case, except as an evidence of evil intent, as to the genuineness of the note designed to avoid its payment. Ibid. 2488. A municipal corporation has no power to invest its obliga- tions with the character and incidents of commercial paper, so as to render them unassailable by defences to which they would be subject in the hands of the immediate parties, unless such power is conferred by legislative authority, either express or clearly implied. Knapp v. Mayor and C. of Hoboken, 39 N. J. 394. 2489. In the case of bills of exchange, promissory notes and other commercial contracts a month is always a calendar month. A note, payable six months after the 30th of May, is due just six calendar months and three days thereafter, the days of grace being included, bringing it to maturity consequently on the 3d of December succeed- ing. Until that day the indorsers of such paper have not broken their contract by non-payment. Bank of Tennessee v. Alexander^ 340 MONROE'S DIGEST Officer, et al., 59 Tenn. 173 (3 Baxter). The demand must be made on the third day of grace, on the second if the third be a holiday. Ibid. 2490. The holder of negotiable paper, taking it for good consid- eration in the usual course of business, without knowledge of facts im- peaching its validity, holds it by a good title. It is not enough to defeat his recovery to show that he took it under circumstances that might tend to excite suspicion. Farrell v. Lovett, 68 Me. 326. 2491. In an action against the maker by an indorser of a nego- tiable promissory note, who purchased the same for a valuable consid- eration before maturity, and without notice of any fraud or infirmity as between the original parties, the defendant is not liable where it is- shown : (1) That at the time of signing and delivering the note he was induced by fraudulent representations as to the character of the paper to believe that he was signing and delivering an instrument other than a promissory note ; (2) That his ignorance of the true character of the paper was not attributable in whole or in part to his- own negligence in the premises. DeCamp v. Hamma, 29 Ohio, 467. 2492. A negotiable promissory note, given for a patent right r without the words u given for a patent right " inserted therein, as re- quired by No. 68, s. 2, of the Acts of 1872, is good in the hands of a bona fide holder for value who takes it before maturity, and without- notice of what it was given for. Fender v. Kelley, 48 Vt. 27. 2493. In an action by payee of a joint and several promissory note, payable on demand against a maker, a plea that defendant had signed as accommodation maker, with the following agreement written on note, " This note is to be paid off within three years from date,"" and that the plaintiff had made no demand, and the note had not been paid within three years, is a bad plea. Lawrence v. Walmsley, CIX. 797 ; 12 C. B. N. S. 797 (Eng. Com. Law). 2494. Where a negotiable promissory note was made payable upon a condition, and the condition was written below the note on the same piece of paper. Held, that the note and condition were parts of a single entire contract, and that the fraudulent removal of the condi- tion, by tearing the paper, was such a material alteration as rendered the note void in the hands of a bona fide holder. Gerrish v. Glines r 56 N. H. 9. 2495. An agreement by the indorsee of a promissory note for a definite extension of the time of payment, in consideration of an agree- ment by the maker to pay a greater rate of interest than that pro- vided for in the note, is binding upon them, and if made without the con- sent of the indorser, will release him from all liability thereon. Kittle v. Wilson, 7 Neb. 180. 2496. This defence is a legal one, and should be made by the in- dorser in the action against him on the note ; but if he neglects to do so, and suffer judgment to go against him, he cannot afterwards make it available as a ground for enjoining the enforcement of such judg- ment. Ibid. 2497. It is not necessar} 7 that any United States internal revenue stamps should be affixed to a note, or a mortgage, in order to make it competent evidence in our State courts. Pargoud v. Eichardson, 30 La. 1286. 2498. A promissory note, drawn for a sum certain and made pay- OF STANDARD DECISIONS. 341 able to any person," or order," "or assigns," " or bearer," is nego- tiable ; but if it is payable to a certain person, without words making it payable " to order," " or assigns," " or bearer," it is not a negotiable instrument. Hosford v. Stone, 6 Neb. 380. 2499. Any words in a promissory note, from which it appears that the person making it intended it to be negotiable, will give it a transferable quality ; but the words " negotiable and pa}*able without defalcation or discount," do not of themselves make an instrument, otherwise non-negotiable, negotiable. Ibid. 2500. Where a note, though negotiable, is payable to order, and unindorsed, and is accidentally destroyed by fire while in the possession of the payee, the payee can maintain an action on such lost instru- ment without first tendering or giving a bond of indemnity. Blandin, Adm'r v. Wade, 20 Kansas, 251. 2501. In a case where a note, framed on a printed blank, was com- plete at the time it left the hands of the party sought to be charged, tout was so printed as to give an apparent authority to fill a blank space, occupying the same position relative to the body of the note that an interest clause usually does, and the space left finished ample room for inserting such clause, and the space was not filled in a way to attract observation, the Court strongly inclined to the opinion that the defendant would be bound to an innocent hold. Iron Mountain Bank v. Murdoch, 62 Mo. 70. 2502. If the principal in a promissory note borrows monej' with -which to pay the same, and, on paj'ing the sum due thereon the note is delivered to him and the party advancing the money, and it is after- wards arranged between them that the note shall be indorsed by the payee to the party making the loan, the surety not being present or consenting thereto, this in law will be a payment of the note, as to the .surety. Dare v. Humphrey, et al., 29 111. 452. 2503. Promissory note, given by a vendee for the price of a thing which the vendor assumed to sell, but which never had an existence, .are utterly without consideration, and cannot be enforced by the vendor, or by any one who has acquired them after their maturity. Cummings v. Saux, 30 La. 207. 2504. Giving a note for an antecedent debt is not a payment of it, unless the note be received under an express agreement, or under cir- cumstances from which an agreement may be fairly implied to treat it as a payment, or unless payment in fact result from it. May & Sloan v. Gamble, 14 Fla. 467. 2505. An agreement by a debtor and creditor that the creditor 'will, at a future day, accept new notes and securities in lieu of those held, giving additional time of payment of the indebtedness, cannot be enforced unless some valid consideration be received by, or benefit or advantage has accrued thereby, to the creditor. Ibid. 2506. One who has executed a promissory note in error, for a debt not due by her, may legally resist the payment of the note, so long as the note is not in the hands of an innocent third person, who has taken it for value before its maturity. Bridget Reardon v. Daniel Moriarty, et al., 30 La. 120. 2507. The maker or indorser of a promissory note cannot, as against an indorser of the same, in this State, for value before 342 MONROE'S DIGEST maturity and without notice show that the note, although dated in> Boston, with intent that it should, be a Massachusetts contract, was actually made in New York, and on account of illegal interest, was void under the Usury Law of that State. A promissory note, in- dorsed " L. R., receiver," binds him personally. Towne v. Rice, 122 Mass. 67. 2508. One who is in fact the owner of a note negotiable by in- dorsement may maintain an action upon it, although no indorsement thereof has been made to him ; and an indorsement subsequent to the commencement of the action, made by the payee, will relate back to- and ratify a prior sale of the note made by an agent of such pa} T ee. Weeks v. Medler, 20 Kansas, 57. 2509. An instrument which, in its terms and form, is a negotiable promissory note, does not lose that character because it also recites that an additional rate of interest will be paid " after due ; " that the maker has deposited certain certificates as collateral security for the payment of the note, and states the terms upon which they have been deposited and upon which they may be sold by the holder on the non- payment of the note. Towne v. Rice, 122 Mass. 67. 2510. In action on a note and mortgage, when it is admitted that- the plaintiff is the holder of the note, which is indorsed in blank by the payee thereof, the law will presume, in the absence of any evi- dence to the contrary, that the plaintiff is an innocent and bona fide holder for value, and that it was indorsed to him before due. Acton v. Harlan, 20 Kansas, 452. 2511. The title to negotiable paper cannot be defeated by proof of negligence, or want of diligence in inquiring into the title or the equi- ties between the parties thereto. Nothing but fraud will defeat the title thereto. The legal presumption as to an indorsement on negoti- able paper is, that it was for value, and for a proper purpose; and* where such indorsement purports to be the act of a corporation r through its proper officer, one taking negotiable paper so indorsed, for value, before maturity, is not bound to inquire whether the indorse- ment was made in the regular course of the business of the corpora- tion, or was for the accommodation of the officer, or was without con- sideration. Lafayette Savings Bank v. St. Louis Stoneware Co., 4 Mo. Court of Appeal (St. Louis) 276. 2512. When a negotiable promissory note, due sixty days after date, and indorsed by the payee in blank, is put in suit by a third per- son, the production of the note by the plaintiff, at the trial, is prima facie evidence that he acquired it for value before maturity, and with- out notice of any fact going to defeat its collection. As against him,, payment made to payee will not be a defence, without showing that the payee had possession of the note at the time, or was then the owner of it, or for some other reason had a right to receive the money. Gen- erally, payment made to an agent who has parted with possession of the security to his principal, is no discharge. Paris, et al. v. Moe r Adm'r, 60 Ga. 90. 2513. A promissory note, due from a resident of Colorado to a resi- dent of California, is in no legitimate sense the property of the debtor r and is not subject to taxation under the laws of Colorado (Sess. Laws, 1870, p. 88), although the note is secured by trust deed upon real estate OF STANDARD DECISIONS. 343 within the jurisdiction of the taxing power. Comers Arapahoe Co. v. Cutter, 3 Colo. 349. 2514. When the consideration for a promissory note was expressed in the note to be the stock of a railway corporation, and the director* of the corporation subsequently made an illegal and unauthorized in- crease in the stock of the company, it was held that such illegal in- crease would constitute a defence to an action upon the note. Follow- ing Merrill v. Gamble, 46 Iowa, 615 ; Ante. Merrill v. Beaver, 46 Iowa, 646. 2515. A note, or other written evidence of indebtedness, payable in current funds, is not to be regarded upon its face as negotiable. Haddock v. Woods, 46 Iowa, 433. 2516. In an action upon such paper it is competent to show by parol evidence the peculiar meaning of the term current funds, and that the parties understood it to mean money. While the under- standing of the parties respecting the condition of the contract can- not be shown by parol, their understanding of the meaning of the words used therein may be competent. Ibid. 2517. This court has repeatedly recognized the rule that an ex- press agreement must be shown to establish the fact that a bill or note of either the debtor or a third person was taken by the creditor in pay- ment of a preexisting debt. Brewster v. Bours, 8 Cal. 506 ; Griffith v. Grogan, 12 Cal. 320; Welch v. Allington, 23 Cal. 322 ; followed in Brown v. Olmsted, 50 Cal. 162. 2518. If the widow is executrix of the estate of the deceased husband, and the estate is community property, so that she has an in- terest in the same, and she gives her own note for a debt of the de- ceased husband, which is outlawed, under the mistaken opinion that it is not outlawed, there is a sufficient consideration to support the note. Mull v. Van Trees, 50 Cal. 547. 2519. The party who purchases a promissory note from the payee before it is due, but after the payee has executed to the payor a re- lease of the same, without knowledge of such lease, is a bona fide holder, although he purchases for less than the face of the note, and as a speculation, and although by the exercise of a little diligence he might have ascertained that the release had been given. Schoen v. Houghton, 50 Cal. 528. 2520. If one party furnishes another one thousand dollars in money, and such other gives him his note therefor, with the under- standing that the payor shall procure third parties to assign to him- self certain liens on land claimed by the payee, which liens the payor shall hold for the benefit of payee in satisfaction of the note, the agreement amounts to an accord and satisfaction, and is a payment of the note. Treadwell v. Himmelmann, 50 Cal. 9. 2521. A contemporaneous written agreement, executed by the payee of a promissory note, showing a contingency upon which the payment of the note is to depend, is admissible in evidence, under the general issue, in an action on the note by an indorser after maturity against the maker. Munro v. King, 3 Colo. 238. 2522. In a suit on a note the affidavit of defence was that it had been given as a donation to a church, on condition that the lot on which it was erected should be conveyed to the church, which had not 344 MONROE'S DIGEST been done. The suit was by the indorsee ; the affidavit averred that defendant " verily believes and expects to prove that the note has been passed by the payee to plaintiffs to avoid making this defence, and that the plaintiffs sold the same to the use of the payee without con- sideration as between them." Held, sufficient against the indorsee. Eeznor v. Supplee, 81 Penn. St. 180. 2523. Where two or more notes, secured by a single mortgage, fall due at different times, they shall be paid out of the mortgage fund in the order of their maturity, unless a different agreement has been made between the parties, or unless some paramount equity should require a different order of payment. Richardson v Me Kim, 20 Kan. 346-350. 2524. The part}*", who was president and treasurer of a local board of trustees of an insurance company, gave a certificate that the in- surance company had on deposit with him a certain number of dollars, and signed it, " H., president and treasurer, local board of trustees." Held, that the certificate, in legal effect, was H.'s promissory note, and in a suit at law against him by the insurance company he could show in defence that the contract of which it formed a part was rescinded, or that the contract was of mutual stipulations, and the payee had not performed on his part. Hart v. Life Ass'n, 54 Ala. 195. 2525. The maker of negotiable paper, which is void in the hands of the payee, may, in order to prevent its negotiation, maintain a bill in equity to compel its surrender for cancellation. Breathuit v. Rogers, Adm'r of McLendon, 32 Ark. 758. 2526. A promissory note given by the widow to a creditor of the deceased husband, who does not take it in payment of the debt, and neither lost nor suspended any remedy for its collection, or receipted the account, is without consideration. The fact that there has been no administration, and the widow remains in possession of all the real and personal estate of the husband the possession not being derived from the creditor forms no consideration for such a promise. Watson v. Reynolds & Stuckey, 54 Ala. 191. 2527. A promissory note, which is payable " on or before three years from date," is not due until the three years has expired ; and a purchaser for value within that time is entitled to the same protection as if the note was made payable three years from date. Mallison v. Marks, 31 Mich. 425 ; also, Helmer v. Krolick, 36 Mich. 371. 252S. If a promissory note, signed by one member of a partner- ship in the firm name, is given in payment of debts, some of which were contracted before another member came into the firm, and the rest thereafter, and an action thereon by the pa3 T ee of the note is de- fended by such other member alone, the plaintiff, in the absence of evi- dence of actual fraud on his part, or of knowledge when the party de- fending entered the partnership, is entitled to recover for such debts covered by the note as were contracted after he became a member. Gould v. Belcher, 119 Mass. 257. 2529. The note sued on having been transferred to plaintiff as collateral security for money loaned before due, it was a bona fide holder thereof; consequently the verdict, finding for the defendant, on a plea of failure of consideration, was contrary to law. Exchange Bank v. Butner & Edgeworth, 60 Ga. 654. OF STANDARD DECISIONS. 345 2530. Three promissory notes, made by the lessee paj'able to the lessor at different dates, were given to and accepted by him in con- sideration of the surrender of a lease in a building, which lease pro- vided that, in case of the destruction of the premises by fire, the rent should be suspended or abated. The first two notes were duly paid, and before the last note was due the premises were destroyed by fire. Held, that the consideration of the notes given by the lessees was the acceptance by the lessors of the surrender of the lease. After this the defendants had no interest in the real estate, and their liability upon the notes was not affected by the condition of the premises, or by the provisions of the lease, which had ceased to exist. Brooks v. Cutter, 119 Mass. 132. 2531. A protested draft is not an obligation within the meaning of the proviso of the Act of 16th of April, 1850, which declares that the assignees of an insolvent bank " shall receive in payment of debts due to said bank its own notes and obligations and the checks of its depositors at par." Basehore v. Rhodes, 85 Penn. St. 44. 2532. In an action upon a promissory note, in which the declara- tion alleges that the defendant made the note, and the answer denies this, and alleges an alteration, proof of the defendant's signature is prima facie evidence that the whole body of the note written over it is the act of the defendant, but the burden of proof is on the plaintiff to show that the note declared was the note of the defendant. Simpson v. Davis, 119 Mass. 269. 2533. The addition of the name of another joint maker to a note, without the knowledge or consent of the others, is such a material alteration as releases them from liability thereon. The last signer, however, is not released by the discharge of his cosigners, and he is liable for the amount of the note. Hamilton v. Hooper, et al., 46 Iowa, 515. 2534. A promissory note being accepted by the parties, in interest, in payment of a debt, the taking of such note, in pursuance of the agreement, merges the original cause of action in the note. If such agreement was in fact made, and note given in pursuance thereof, the creditor cannot rescind such contract for the purpose of suing upon the original cause of action by simply returning the note. Kappes,etal. v. Oeo. E. White, 1 Bradwell's 111. App. Rpts. 280. 2535. Where a note provided for interest at 10 per cent, per annum, and the mortgage executed to receive it stipulated for " in- terest at the rate of 10 per cent, per annum, payable annually, accord- ing to the terms of the promissory note," held, that the mortgage pro- vided for something respecting which the note was silent, and would, therefore, govern. Dobbins v. Parker, et ux., 46 Iowa, 357. 2536. Defendants were partners, and K., one of them, furnished money to be used in the partnership business, and took a note there- for, payable to himself, or order, and signed by himself and the other defendants. K.'s wife became the owner of said note, and sent it to plaintiff by K. for collection, and K. indorsed it to plaintiff for collection merely. K. made no defence to the note. Ormsbee v. Kidder, et els., 48 Vt. 361. 2537. If the payor of a note conveys land to the holder, by way of security for its payment, and the holder afterwards sells the notes 346 MONROE'S DIGEST to a third person, and then conveys the land to another person to secure his own debt, these facts do not constitute a defence, if such third person sues the payor to recover on the notes. Kiel v. Beay f 50 Cal. 61. 2538. The omission to insert in a note given for a patent right the words " Given for a patent right," inserted therein, as required by statute, does not render the note void. If the patent right is good and valid, and forms an adequate consideration for the note, the maker can- not defend against a transferee of the note on the ground of the omis- sion of those words. The object of the statute was to prevent the transfer of such notes to innocent and bona fide holders. Streit v. Waugh, 48 Yt. 298. 2539. Nor can the maker defend upon the ground that the plaintiff received the note from another transferee in payment for liquor sold in violation of law. Ibid. 2540. It cannot render a purchaser of negotiable paper suspicious that the payee has an interest in getting it off his hands ; this fact would not necessarily be known to the purchaser, or influence in any manner his action ; and in determining whether a purchaser i& entitled to be considered a bona fide holder, it is his bona fides, and not that of the payee, that is in question. Helmer v. Krolick, 36 Mich. 371. 2541. A promissory note, left blank as to the amount, but perfect in all other particulars, and providing for a certain rate of interest " per annum," was executed by one as principal, and by another as surety, and entrusted by the latter to the former for delivery to the payee ; whereupon the payee's agent, with knowledge of the relations of the makers as principal and surety, filled up the blank, and altered the note, by direction of the principal, but -without the knowledge or consent of the surety, so as to make it bear interest " after maturity." Held, that such alteration relieved the surety from all liability thereon. Franklin L. Ins. Go. v. Courtney, 60 Ind. 134. 2542. A promissory note, given in a gambling transaction, is void j although negotiable in form, and in the hands of an innocent holder for value. Harper v. Young, 112 Penn. 419. 2543. The fact that a fraudulent device was superadded to induce the giving of the note does not destroy the gambling motive of the scheme. Ibid. 2544. On a collateral contract to pay a certain sum per month as interest on a note, if it should not be met at maturity, payee, who has indorsed the note away, cannot recover. Florence v. Drayson, LXXXVII. 584 ; LC. B. N. S. 584 (Eng. Com. Law). 2545. A. being indebted to B., as a surety, in order to enable B.'s agent to raise money, and to obtain further time on the debt to B., made his note to the agent upon an agreement that if he should have to pay the note, the amount paid should be entered as a credit on the debt to B. The agent assigned the note to the plaintiff for value ; after the assignment his agency ceased, and the debt to B. was paid by the principal debtor. Held, that at the time of the assignment there was a subsisting consideration, and the subsequent failure of consider- ation could not affect the right of the plaintiff (the assignee of the note.) Woodruff v. Webb, 32 Ark. 612. OF STANDARD DECISIONS. 347 2546. Where, by mistake, note at two months, dated January lst r 1854, instead of January 1st, 1855, and across the face was written r " Due March 4th, 1855," held, that the date was 1855, and the memo- randum was as if correction of error. Fitch v. Jones, LXXXV. 238 ' T 5 E. & B. 238 (Eng. Com. Law). 2547. Negotiable paper, payable at a time certain, is dishonored by mere non-payment at the time, and no one is a bona fide holder r without notice, who does not take such paper before maturity. When the time of payment of a negotiable note is extended by agreement, a reference to which is indorsed upon the back, one who takes it after its- original maturity will be subject to all equities between the parties. Dryer v. Mercantile Bank, 4 Mo. Court of Appeals (St. Louis) 598. 2548. If A. & B. enter into partnership, and B. is to furnish $1,000 as his part of the capital, and B. hands the money to C. to de- liver to A., and A., when he receives it, gives C. his promissory note for it, the note is given without consideration. Ayer \. Duncan, 50- Cal. 325. 2549. When the maker of a non-negotiable promissory note is at the maturity thereof bankrupt, the assignee and holder of the note may at once sue the assignor, without waiting for final distribution of the estate of the bankrupt maker, the bankruptcy of the maker being a breach of the implied warranty of the assignor. Lowenstein v. Knopf, 4 Mo. Ct. Appeals (St. Louis) 594. 2550. Where the maker of a promissory note, payable to a certain person or bearer, on being inquired of by a third person to whom the payee had offered after its dishonor to sell it, answered that it was all right, and that he would pay it, and thereupon the purchase was made and the price paid, the maker is estopped from setting up failure or want of consideration, or any other equity existing between himself and the payee, to an action brought upon the note by the purchaser or his privies. Reedy v. Brunner & Co., 60 Ga. 107. 2551. Where it is claimed by a party defendant that the date of the note in suit is a mistake., and the note on its face is payable six months after date, and such defendant claims that the note was in fact paid when due (which was six months before the date at which it pur- ports to have been executed), the testimony of an indorser of such note that he indorsed such note at the place of its date, in the State of Kansas, at or about the time claimed by the maker as the date of execution, and that he was absent from the State during all the time for a period, commencing some three months before the date appearing on the note, and extending some five months beyond such date, is com- petent as tending to show a mistake in the date of the note. Clary v. Smith, 20 Kansas, 83. 2552. In an action upon a negotiable promissory note, it will de- volve upon the defendant to show, if he so claims, that the note was- fraudulently obtained, or that it was executed without sufficient con- sideration, or that it has been paid. Ecton v. Harlan, 20 Kansas, 452, 2553. Where a person, possessed of the ordinary faculties and ability to read, signs and delivers a negotiable promissory note, with- out knowing it to be such, but without reading the same, having an opportunity to do so, relying solely upon the representation of the payee that the paper was an instrument other than a note. Held, as- 348 MONKOE'S DIGEST against a bona fide holder before maturity for value, such maker will not be permitted to deny the due execution of the note. Winchell v. Crider, 29 Ohio, 480. 2554. A purchaser of negotiable paper is not put upon inquiry by mere knowledge that the payee is engaged in selling intoxicating liquors, to ascertain whether the consideration of the paper was not the unlawful sale of such liquors. Bottomley v. Goldsmith, 36 Mich. 27 ; also, Paton v. Coit, 5 Mich. 505. 2555. In an action against the maker by a bona fide indorsee, be- fore due, and for value, of a negotiable promissory note, the defendant is liable, if guilty of negligence in the execution thereof, although he did not intend to sign a note, and was induced, through fraudulent rep- resentations as to its character, to believe that the instrument executed was one of a different purport. Boss v. Doland, 29 Ohio. 473. 2556. A person, who negligently signs and delivers to another a printed form of a negotiable promissory note, containing blanks, with- out knowing it to be such, is estopped as against a subsequent bona fide holder for value, and before due, from denying authority in the person to whom it was delivered to fill the blanks. Ibid. 2557. Prior equities of antecedent parties to negotiable paper, transferred in fraud of their rights, will prevail against an indorsee who has received the paper in nominal payment of a precedent debt, where there is no evidence of an intention to receive it in absolute dis- charge and satisfaction beyond that of accepting or receipting it in payment, or crediting it on account. Phcenix Ins. Co. v. Church. 81 N. Y. 218. 2558. A petition against several makers of a joint and several note more than fifteen years past due, whereon payments have been made within the time of the statute, but by whom paid not appearing, does not show a statutory bar in favor of any of the defendants. Where the holder of a note past due receives from the principal debtor, without the knowledge of the surety, a sum of money greater than the amount of interest then due, and the amount so received is in- dorsed on the note as received on account of interest, it not appearing that such indorsement was made by the holder, or that he had knowl- edge that the same was so made, it is not error to refuse to charge the jury that in law such receipt and indorsement constituted an agree- ment to extend the time of payment of the note for such period of time as such sum would pay interest. Vose v. Woodford, 29 Ohio, 245. 2559. A. made his promissory note, expressed to be for value re- ceived, whereby he promised to pay B. or bearer forty dollars profits, with interest, one year from date. As to A., the note was entirely without consideration, and was obtained from him by fraud. The plaintiff subsequently became the innocent bona fide purchaser thereof before maturity. Held, that the instrument in the hands of the plain- tiff was a valid, negotiable promissory note, and might be recovered ; that the word u profits," as to the plaintiff, did not express or suggest a contingency or uncertainty, but an absolute existing fund as the consideration of the promise, and on account of which the money was to be paid, and that the word, as inserted in the note, was not such an apparent defect or infirmity as to put the plaintiff upon inquiry. Matthews v. Crosby, 56 N. H. 21. OF STANDARD DECISIONS. 2560. In a suit brought against the administrator of a deceased person to recover the amount due upon a promissory note, the defend- ant should be allowed to allege and prove that the note was made and delivered to plaintiff, without consideration, for the sole purpose of protecting the property of the deceased from his creditors, and that it was agreed between plaintiff and said deceased at the time of the exe- cution of said note that it should be cancelled whenever so desired. McCausland v. Ralston, 12 Nevada, 195. 2561. In an action brought upon a promissory note to recover of one of the indorsers the amount due, the indorser may be declared against as a guarantor, and held liable as such. Sarbach v. Jones, 20 Kansas, 497. 2562. Where a promissory note, obtained from the promisor by fraud, has been transferred to a third party before its maturity, the burden of proof is upon him to show that he purchased it for value in good faith ; and to determine* this, all the attendant circumstances of the transaction are to be considered. Sullivan v. Langley, et al., 12fr Mass. 437. 2563. In an action upon a promissory note it was alleged on the part of defendant, and evidence was given tending to prove, that two other notes were executed for the accommodation of one S., which were diverted from the purpose for which they were executed, and were in- dorsed, and transferred by S. to G. in payment of an antecedent debt r no new consideration being paid, and were transferred by G. to plain- tiffs, that in payment of a balance due on said notes, the note in suit was given which did not have the indorsement of S., and that the orig- inal notes were surrendered ; neither plaintiffs nor G. had notice that the original notes were accommodations notes. Held, that, assuming a defence existed as to the original notes, the surrender of the indorse- ment of S. upon acceptance of the new note made the plaintiffs bona fide holders for value, and so excluded the defence ; and therefore a charge that the fact that none of the plaintiffs had knowledge of the character of the original notes was immaterial, was error. Goodwin v. Conklin, 85 N. Y. 21. 2564. Plaintiff made an oral contract with J. W. to carry an in- debtedness of the latter for a year upon his giving short notes in- dorsed by the defendant P. and others, to be renewed from time as they fell due. In renewing one of the notes so given, but not indorsed by P., a note was presented to and received by plaintiff so indorsed, and in renewal thereof another similar note was given and received. In an action upon the last note, held, that there was a sufficient considera- tion for the indorsement of P.; that the plaintiff could have, sued the note in renewal of which P.'s first indorsement was given, and the agreement would not have been a defence, at most it would only have constituted a counterclaim to the extent of the injury sustained by its breach ; and that the canceling of that note and extension of time of payment furnished a good consideration ; also, that it was immaterial at whose request the indorsement by P. was made. Nat. Bank of G. v. Place, 86 N. Y. 444. 2565. Good equitable defence by one maker of a promissory note that he was surety for the other, of which the holder had notice at the time the note was made, and that the holder has given principal debtor 350 MONROE'S DIGEST time, preventing recovery. Semble, that the defence would be good, if the holder knew when he gave time that the defendant was surety. fooley v. Harridine, XC. 431 ; 7 E. & B. 431 (Eng. Cora. Law). 2566. The contract which the law implies from the indorsement of a negotiable note, is as conclusive against parol testimony as though it were written out in full above the indorser's signature. Parol testi- mony is inadmissible to change a simple, unqualified indorsement, whether in full or in blank, into an indorsement without recourse. Doolittle v. Ferry, 20 Kansas, 230. 2567. Where an insolvent merchant pressed by creditors, nominally sells to his penniless clerk a stock of goods which the clerk and he knows are not paid for, and accepts in payment of the goods a debt for pretended wages he owes the clerk, and the promissory notes of the clerk, the transaction will be considered a fraudulent simulation. Sat- iler & Go. v. Leonard Marine, 30 La. 355. 2568. Partial payment made by one debtor on a note, will not sus- pend the running of a statute of limitations in favor of the other debt- ors thereon, although the party paying be the principal debtor, and the others only sureties. Steele v. Souder, 20 Kansas, 39. 2569. A party knowing the signature to a promissory note to be forged, and intending to be bound by it, acknowledges it as his own, assumes the note as his own and is bound by it just as if it had been originally signed by his authority. Wellington v. Jackson, 121 Mass. 157. 2570. Note declared upon last pending action, copy annexed to dec- laration being still in existence, and produced at the trial, the trial may proceed without establishing a copy in lieu of the lost original, though a plea of non est factum be filed. The genuineness of the -original, and the correctness of the preserved cop t y, may be established by parol evidence. Jernigan Ex'x v. Carter, 60 Ga. 131. 2571. Where a promissory note is signed by two, one being surety for the other, with the knowledge of the payee, but without any agree- ment to that effect between the payee and surety, time given the princi- pal maker is a good defence in an action by payee against the maker who was surety. Greenough v. McClelland, C. V. 422 ; 2 E. & E. 422. Affirmed C. V. 429 ; 2 E. & E. 429 (Eng. Com. Law). 2572. The alteration of the date of a note by the holder, without the consent and to the prejudice of the maker, is a forgery and renders the note void. Lemay v. Williams, 32 Ark. 166. 2573. Where the note under seal, is made with an agent in his own name, for an undisclosed principal, whether he describes himself as Agent or not, either the agent or principal may sue upon it. Ludwig v. Gillepsie, 105 X. Y. 653. 2574. Holder of a note secured by mortgage may proceed at law :and in equity at same time till he obtains satisfaction of the debt. Ober v. Gallagher, 93 U. S. 199. 2575. A rent note being made pa3^able to bearer, the defendant could not question the plaintiff's title thereto, unless it was shown to be necessary to his defence. A motion for non-suit, on the ground that the evidence disclosed that the note had been deposited with third persons as collateral security, and the debt was therefore due to them "vaa properly overruled. Greer v. Woolfolk, 60 Ga. 623. OP STANDARD DECISIONS. 351 2576. Proof that the consideration of a promissory note upon which suit is brought was the unlawful sale of intoxicating liquors, throws upon the plaintiff the burden of showing that he bought the note in good faith and before it fell due. Paton v. Coit, 5 Mich. 505. 2577. Material alteration, the erasure of the word " surety " after the name of the signers of a note by the payee, before indorsement, is & material alteration discharging the surety, even though the note be transferred for value before maturity. Lamb v. Paine, et al., 46 Iowa, 550. 2578. If a transfer of title in the note without assumption of liability is sought or desired, equally apt and well-known words are at hand. " Without recourse," relieves the indorser. Doolittle v. Ferry, 20 Kansas, 232. 2579. A promissory note of this form : " One year after date we promise to pay to the order of A. B., one thousand dollars, value re- ceived," and signed " George Moore, treasurer of Mechanic Falls Dairying Association " is the note of Moore and not of the Association ; and it makes no difference that the plural " we " is used instead of "I." Mellon v. Moore, 68 Me. 390. 2580. To pass the legal title by the plaintiff in execution there must be an indorsement or assignment thereof in writing. Anderson Ex'r v. Baker, 60 Ga. 599. 2581. The legal import of a blank indorsement upon a promissory note cannot be varied by parol. Martin v. Cole, 3 Colo. 113. 2582. In a suit by a bank against the maker of a promissory note, a plea of the general issue admits the corporate existence of the bank and its capacity to sue. Ticonie Bank v. Bagley, 68 Me. 249. 2583. The assignment and delivery of a promissory note payable to order, before maturity, without indorsement, gives to the assignee only the rights of the payee, though it may have been taken in good faith and for value. Allum v. Perry, 68 Me. 232. 2584. An averment in a complaint on a promissory note, that a certain sum " is due, as principal and interest on said note," is equiva- lent to an averment that the note remains unpaid. Downey v. Whit- tenberger, 60 Ind. 188. 2585. A verbal acknowledgment of, and promise to pay a promissory note, made by one of its solidary makers before its pre- scription, will interrupt prescription as to all the makers. Boullt v. Sarpy, 30 La. 494. 2586. Forbearance to one maker of a promissory note does not discharge another, who, with knowledge of holder, gave note as accom- modation. Strong v. Foster, LXXXIV. 201 ; 17 C. B. 201 (Eng. Com. Law). 2587. In order to make future services good consideration for a promissory note there must have been a contract for them. Hulse v. Hulae, LXXXIV. 711 ; 17 C. B. 711 (Eng. Com. Law). 2588. The mortgage note of a wife knowingly received by a creditor of the husband, in satisfaction, or security of the husband's debt, is in the hands of such a creditor, utterly null and void. Claverie v. Gerodias, 30 La. 291 . 2589. Note given to creditor to induce him to sign composition 352 MONROE'S DIGEST deed, consideration illegal. Clay v. Ray, C.XII. 188 ; 17 C. B. N. G. 188 (Eng. Com. Law). 2590. One who takes a promissory note as collateral security for a debt then created, and on the faith thereof, with notice of no equities,, becomes a holder for value. Logan v. Smith, 62 Mo. 455. 2591. B. and C. being indebted to D., B. gave a promissory note to A., the agent of D., in payment thereof. When the note came due it was not paid, and A. agreed to assume the original debt and to trans- fer the note to C. on C's giving his promissory note to A. for the amount of the debt. Held, that C.'s note was given for a sufficient consideration. Turner v. Rogers, 121 Mass. 12. 2592. A creditor holding the mortgage note of a third person a& collateral security is compelled to credit the debt due him with only the net sum he was legally able to collect on said note. Blomn v. Liquidators of Hart & Hebert, 30 La. 714. 2593. A promissory note, given to one creditor in consideration of an agreement in fraud of the maker's other creditors, is void as be- tween the parties. Fay v. Fay, 121 Mass. 561. 2594. A promissory note is entitled to days of grace, and suit cannot be brought thereon until after they have expired. McCoy v. Babcock, 1 Bradwell's 111. App. Repts. 414. 2595. In a suit on a promissory note by a bona fide indorsee for valuable consideration, against the maker, the simple fact that the in- dorser was at the time of the indorsement indebted to the maker, is no- defence. Price v. Keen, 40 N. J. L. R. 332. 2596. A' promissory note which has for its consideration the dis- continuance by the holder of the note of certain criminal proceedings instituted by him against a party, for obtaining money under false pre- tences, is void. U. Oganne v. Abraham Haber, 30 La. 1384. 2597. One who executes a promissory note in the name of another, without authority to do so, becomes personally liable for the amount of the note. Dowd, Brown & Co. v. Bishop & Co., 30. La. 1178. 2598. In an action on a promissory note payable to bearer, by one alleging himself to be the bearer, owner and holder thereof, it is un- necessary to allege delivery. Block v. Duncan, 60 Ind. 522. 2599. In order to recover from the maker of a promissory note, it is not necessary to make a demand at the place of payment designated in the note. Henry Renshaw v. A. Keene Richards, 30 La. 398. 2600. Absolute unconditional promissory note cannot be changed into conditional obligation by parol evidence in absence of fraud, acci- dent, or mistake. Haley Ex'r v. Evans, 60 Ga. 157 ; also, Brumby,, et al. v. Barnard, Agent, 60 Ga. 292 ; also, Starr v. Mayer & Co., 60- Ga. 546; and Wright v. Wilson, 60 Ga. 614. 2601. Party taking a promissor}' note, with notice of fraud before indorsement, cannot recover. Assignee of bill or note without indorse- ment, takes, subject to all defences. Whistler v. Forster, 248 ; CYIII. 14 C. B. N. S. 248 (Eng. Com. Law). 2602. Promissory note, in consideration of forbearance to prose- cute charge of obtaining money under false pretences, is illegal. Clubb v Hutson, CXIV. 414; 18 C. B. N. S. 414 (Eng. Com. Law). 2603. One who takes a stolen negotiable instrument bona fide and for value is entitled to recover on it, though negligent in availing him- OF STANDARD DECISIONS. 853 self of means of knowledge of bad title. Raphael v. Bank of England, 84, 161 ; 17 C. B. 1861 (Eng. Com. Law). 2604. The single fact that a promissory note payable to bearer, was transferred to the plaintiff without consideration, or solely to en- able him to bring suit upon and collect it, constitutes no defence to the action. Me Willliams v. Bridges, 7 Neb. 419. 2605. S. is the owner of the negotiable note of M. for $8,000, which he indorses and deposits with the bank as collateral security for a loan of $4,000, obtained upon the discount by the bank of the note of B. S. sells the note to O., and gives O. an order on the bank to deliver the note to 0. On the same day, 0. presents the order at the bank, and is told that the president of the bank is absent from town. Some days thereafter O. has an interview with the presi- dent of the bank, and is then informed that the debt of S. is nearly paid, and that he would deliver the note to 0. but for the service of an attachment upon the bank. The debt of S. is afterwards paid in full. Before the sale by S. to 0., an attachment has been served upon M., at the suit of a creditor of S. ; but of this 0. had no notice when he pur- chased the note. After the sale and notice to the bank by O., an at- tachment was served upon the bank by another creditor of S. Held, the sale by S. to 0. is valid, and he is entitled to the note as against the attaching creditors of S. Blair & Hoge v. Wilson, 28 Grattan (Va.) 165. 2606. An alteration of a promissory note in any material part renders it invalid as against a party not consenting thereto, even in the hands of an innocent purchaser. Brown v. Straw, 6 Neb. 536. 2607. After an instrument is completed and delivered, no altera- tion can be made therein, except by consent ; an alteration of the date, whether it hasten or delay the time of payment, is a material altera- tion, and if made without the consent of the party sought to be charged, extinguishes his liability. Ibid. 2608. Where a party contracts to pay 18 per cent, interest upon a promissory note at the time of its execution and delivery, the con- tract will be tainted with usury, although the rate of interest is not expressed in the note. Keim & Co. v. Avery, 7 Neb. 54. 2609. A surety may plead a defence to a promissory note that usurious interest was agreed upon by the parties at the time of the execution of the note. Ibid. 2610. The defendant being the payee of a negotiable promissory note, upon which his action is brought, his relation is such that lie cannot in law be held to be the maker of such note, even though his indorsement was for the purpose of giving credit to the note. Barn- ard v. Gaslin, 23 Minn. 192. 2611. That the indorsement by the payee of a negotiable promis- sory note amounts in law to a contract on the part of such indorser, in which he undertakes to pay the note in case the maker fails to pay at maturity, and of which failure he has due notice ; and his liability in this regard cannot be varied or qualified by a parol agreement or understanding simultaneous with that of the indorsement ; and hence, parol evidence will not be received to vary this well recognized legal contract. Ibid. 2612. G. executed a promissory note to a railway company to aid 23 354 MONEOE'S DIGEST in the construction of a road between two points named in the note. At the time of its execution it was understood that the note, with others of like purport, if they reached a certain amount, was to be turned over to another company, which was to construct the road ; they did not reach the amount, and the road was constructed by plaintiff, who was the assignee of the payee of the note. Held, that upon compliance with the other conditions of the note, it was col- lectible by plaintiff. It being stipulated in the note that the con- sideration therefor was to be capital stock of the railway company, which was to be limited to a certain specific amount, an illegal in- crease thereof would constitute a valid defence to the note. Merrill v. Gamble, 46 Iowa, 615. 2613. A material alteration in the terms or condition of a note, or other commercial paper, made by the holder thereof, with a fraudu- lent intent, will defeat recovery thereon. Robinson v. Heed, et al., 46 Iowa, 219. 2614. A surety contracts to pay the note, while the guarantor undertakes to pay it upon condition that certain steps are taken, and any writing upon the note, therefore, which seeks to render a guarantor a surety is a material alteration. Ibid. 2615. Where the alteration is established, the holder has the burden to show that it was made innocently, for a proper purpose, or by a stranger, and in the absence of such proof it will be presumed to have been fraudulently made. Ibid. 2616. The party guilty of the fraudulent alteration cannot by removing it recover the right of action which he has lost by his fraud. Ibid. 2617. When a renewal note has been given, with an understand- ing that the original note shall be surrendered, if the renewal note is not paid at maturity, suit may be commenced thereon ; and the mere fact that the original note had not been surrendered at the commence- ment of the action is no defence, when it appears that plaintiff has always held possession thereof, that its surrender has never been de- manded, and when it is produced on the trial and tendered to defend- ant. The fact that the defendant, at the maturity of the renewal note, went to the bank, where it was deposited for collection, for the purpose of paying it, and refused to pay because the original note was not there to be surrendered, is no defence to the action, when it is shown that the money was afterwards demanded of him, and that he refused to pay on other grounds, and that plaintiff was at all times ready and willing to surrender the original on payment of the renewal note. Fleirs, et al. v. He.llery, 4 Mo. Ct. Appeals (St. Louis) 596. 2618. In an action by an indorsee against his inrlorser on a prom- issory note, which on its face was executed and payable at a bank in another State, the maker of which was alleged to be a non-resident of this State, all the evidence introduced was the note, the indorse- ment thereof and a protest. Held, on motion for a new trial, that the evidence is insufficient to sustain a verdict for the plaintiff. Held, also, that the indorsement, in the absence of evidence to the con- trary, is presumed to have been made at the time and place of the execution of the note, and that the note and indorsement are gov- erned by the law of that place. Held, also, it being presumed that OF STANDARD DECISIONS. 355 the common law prevails in that place, and promissory notes not being governed at common law by the law merchant, that the note in suit is not so governed. Held, also, that the statute of such State should be pleaded and proved, as courts of this State do not judicially know the law there in force. Held, also, that the evidence shows no dili- gence, and no excuse for a failure to use due diligence in proceeding against the maker necessary to bind the indorser of a note not payable in bank. Patterson v. Garrell, 60 Ind. 128. 2619. It is no defence to a suit against the maker of a negotiable promissory note by a national bank, which has discounted the note for an indorser, that since the commencement of the suit the indorser has paid the bank and taken up the note, and taken an assignment of the suit, and is prosecuting it for his own benefit. Such bank has power to free itself from litigation, and realize its money on a protested note by such an arrangement. 2620. Where there is no evidence of fraud or oppression, or any corrupt or improper motive, the owner of indorsed negotiable paper may maintain suit upon it against prior parties in the name of any per- son or party, capable of giving the defendant a discharge, who will consent to the use of his name for that purpose. It is not essential that a suit upon such paper should be brought or prosecuted in the name of one who has a personal interest in the enforcement of the pi-omise. While the right of the defendant to assert such legal and equitable defences in a suit brought in the name of a nominal plaintiff, as he could maintain were the suit in the name of the real owner, will always be preserved, there being nothing in the case to show that the indorser, or his executor, had he taken up the note at its inaturit}',. could not have maintained an action upon it in his own name. Held, that he may lawfully get the benefit of any attachment made by the bank by procuring their consent to the prosecution of the suit in the name of the bank. Ticonie Bank v. Bagley, 68 Me. 249. 2621. Under our Statute the title to a promissory note, whether payable to order or assigns or not, is transferred by indorsement ; but the title to a promissory note payable to bearer is vested in each suc- cessive holder by the original promise of the maker to the bearer, and not by the assignment of the promise, Section 2228 of the Code of 1871 construed, which provides that " all promissory notes, and other writ- ings for the payment of money or any other thing, may be assigned by indorsement, whether the same be payable to order or assigns or not ; * * * and in all actions on any such assigned promissory note, bill of exchange, or other writing for the payment of money or other thing, the defendant shall be allowed the benefit of all want of lawful consid- eration, failure of consideration, pa3*ments, discounts, and sets-off made, had, or possessed against the same previous to notice of assignment, in the same manner as though the suit had been brought by the obligee or payee." Held, (1) that the above statute applies as well to indorse- ments in blank as to special indorsements; (2) that it refers to assign- ments made in the due course of business, for value, and before ma- turity ; (3) that it only changes law merchant so far as to allow the promisee to make any defences existing before notice of assignment against a remote holder, by indorsement, before maturity, which he could have made against the payee. Etheridge v. Gallagher, 55 Miss. 458- 356 MONROE'S DIGEST 2622. E. and wife sold a lot to C., and took in payment a promis- sory note payable to their order, which was transferred by indorse- ment in blank to W. F. E., and by him transferred for value, after due, to G. A bill was filed by G. to subject the lot sold by E. and wife to- C. to the payment of the note held by him, E. and wife filed a cross- bill, alleging that the consideration for which the note was transferred to W. F. E. had failed, and the latter was insolvent, claiming that E. and wife had a superior right to the note, and that the lot should be sold for their benefit. G. demurred to the cross-bill for want of equity r and his demurrer was sustained by the Court. Held, that the action of the Court was correct. Etheridge v. Gallagher, 55 Miss. 458. 2623. Our Statute requires those in an action on a promissory note or bill of exchange all the parties thereto resident in the State shall be sued together. If it appears on the face of the declaration < that any such party is omitted in the action, the omission may be taken, advantage of by a plea in abatement. In an action upon a promissory note or bill of exchange, it is too late after trial to object, for the first time, that all the parties were not sued in the same action. Ibid. 2624. The defendants were the banker of both the plaintiff and one E., and E. having given a note payable to the plaintiff at the de- fendants' bank, the plaintiff, about two weeks before its maturity, left it with the defendants for collection, and to be protested if not paid. On December 4th, the day of its maturity, the ledger keeper debited E.'s account and credited the plaintiff' with the amount of the note. Subsequently the manager, on the ground that the entry had been made by the clerk by mistake and without authority as E.'s account was- then overdrawn caused the entry to be reversed, and refused to pay plaintiff the amount of it. E. stated that he always gave authority to pay each particular note, which he did not do here ; and the manager stated that without such authority it was not the custom of the bank to pay any note. Held, that the plaintiff was entitled to recover the amount of the note from the bank. That by the general law the plain- tiff by making the note payable at defendants' bank, authorized them to pay it ; and that the act of the ledger keeper in charging it to E.'s- account and crediting it to the plaintiff in his account and pass book r amounted to a payment of the note, and was irrevocable. Nightingale v. City Bank, 26 Upper Canada Com. Pleas, 74. 2625. Promissory note, signed " U. S. Manfg. Co., George H. Fox r treasurer." The plaintiffs case depended entirely on the validitj^ of the promissory note, which Fox had assumed to give in the character and capacity of treasurer of the defendant company. Whether he had authority to do so was a vital question. F. was called by the defend- ant as a witness, and asked him, against the plaintiffs objection r whether or not he had authority to make this note as treasurer of the company. Held, that the question was inadmissible. All that could properly be obtained from him were the facts, by which the inference of authority was to be supported or repelled ; and it was for the counsel to argue, and for the jury to find, under the instructions of the Court r whether the facts so given proved that he had the authority, which he denied. The question is fully discussed in Short Mountain Coal Co. v. Hardy, 114 Mass. 197. The Court held, that a declaration of an agent to a third person is inadmissible in behalf of the principal to prove that OF STANDARD DECISIONS. 357 the person was not also his agent, or to support the agent's declarai- tion. 2626. A promissory note, made by one of two members of a firm, in the hands of a bona fide holder for value, although not made in the partnership business, and although the other partners did not know of the making of the note. The note is presumptive evidence that it is valid business paper, and was given for a debt due from the makers to the payee. First National Bank v. Morgan, 73 N. Y. Ap. 593. 2627. Where a joint and several promissory note is signed by three persons, as makers, to the signature of the last signer, the word " surety " being added, the presumption is that he is surety for the other two; this presumption, however, is not conclusive. It maybe shown that he was in fact surety for only one, and that the other signer was also surety. Sales v. Sims, 73 N. Y. Ap. 552. 2628. The possessor of negotiable paper has no better, or other title to the proceeds arising from the sale thereof, than to the paper itself, and if he has no title to the latter, he can be compelled to ac- count to the true owner for the proceeds. Comstock v. Hier, 73 N. Y. Ap. 269. 2629. Testimony that such person was not an agent, because if the inquiry was whether he had an express authority, it was an in- quiry concerning an immaterial matter ; and if it was whether he had an implied authority, it was an inquiry as to an inference to be drawn by the jury from the facts in the case. Providence Tool Co. v. United States Mfg. Co., 120 Mass. 35. 2630. On the 9th September, 1875, defendant indorsed a prom- issory note made by S. and C., bearing that date, and payable to him four months after date at the plaintiffs' branch at Ottawa, but without any amount being filled in. On the same day C. deposited it with the plaintiffs, authorizing them to fill it in for the amount of S. and C.'s then due paper, as also for other paper falling due before the 22d Oc- tober. On the 21st October the plaintiffs filled in the note for $4,835.84, which included defendants' then due paper, a sum of $2,000 coming due on the following day, and $2.94, the amount of the stamps which were there affixed. The stamps so affixed were sufficient to cover double -duty, and were obliterated by writing across them the date on which they were so fixed, namely, 21st October, 1875. Held, that defendant, by so indorsing the note, authorized plaintiffs, as bona fide holders for value, to fill in the amount, and to affix and cancel the requisite stamps in the mode required by law ; and that the note then become a com- pleted note, but speaking from its original date, from which the four months would be counted. By 37 Vic., ch. 47, 3, D., it is provided that in case a bank making or becoming the holder of a note not duly .stamped, knowing the same, and not immediately affixing and cancel- ing the proper stamps, within the meaning of 31 Vic., ch. 9, it should not only forfeit a penalty of $500, but be unable to recover on such note, or make it available for any purpose whatever, and that it should be of no effect in law or equity. Held, that the stamps here were not properly canceled ; for if affixed as agents of the makers, which the including them in the amount of the note was evidence of, then, under 4 of 31 Vic., ch. 9, D., the date of the obliteration must accord with ihat of the note ; whereas, if looked upon as subsequent holders, and as 358 MONROE'S DIGEST affixing double duty, then, under section 12, as substituted by 37 Vic. r ch. 47, 2, the initials or name as well as the date are required. Semble, that the privileges accorded by the latter part of this substituted, sec- tion 12, to holders, who, from error or mistake, do not at the proper time affix the double duty, does not apply to banks, etc. Le Banquer Nationals v. Sparks, 27 Upper Canada Com. Pleas, 820. 2631. PlaintitF held a note, whereon N. was principal, and defend- ants and others were sureties. Plaintiff and N. procured defendant W. to sign another note, agreeing at the time that it should not' be used except to take up the former note, nor unless all the signers of the former note signed it. W. was induced by this agreement to sign said last mentioned note, which plaintiff well knew, and also knew that the note was to be presented to defendant S. by N., the principal thereon, with W.'s name on it, as an inducement for him to- sign it, and that S. was thereby induced to sign ; and plaintiff took the note, knowing S. had been so induced to sign, and advanced money thereon to N., instead of taking it in payment of the former note, as- agreed. Held, that the defendants' relations as sureties, and said agreement, might be shown by parol, and constituted a defence to the note. Harrington v. Wright, et aL, 48 Yt. 427. 2632. The promissory note declared on was dated July 1, 1869, for $1,000, payable on demand. The evidence at the trial was that the plaintitf lent the defendant $1,000 in July, in 1868 or 1869, and at the same time received from him a note, which, there being no evidence when it was payable, might be presumed to be payable on demand - r and that this note had been lost, and could not be produced. This evidence was sufficient, in the absence of evidence that any other note of this amount was ever given by the defendant to the plaintiff, to identify the note in suit, and to warrant the jury in returning a ver- dict for the plaintiff, and the court in rendering judgment in her favor upon her filing a sufficient bond of indemnity. The assignment of all the payee's right in the note, without any indorsement, did not prevent the maintenance of an action upon the note in the name of the payee. Tucker v. Tucker, 119 Mass. 79; also, Clark v. Houghton, 12 Gray, 38 ; Goddard v. Sawyer, 9 Allen, 78 ; Me Gregory v. Me Gregory, 107 Mass. 543 ; Nichols v. Allen, 112 Mass. 23. As to assignment, referred to: Foss v. Nutting, 14 Gray, 484; Cook v. Fellows, 1 Johns. 143; Smalley v. Wight, 44 Maine, 442. 2633. In an action on a promissory note against the maker, the defence was that the note in suit was signed by the defendants at the request and for the accommodation of the 0. R. Co., the payee, and of W. H. and P., the indorsers, who were officers or stockholders of said company, and that the note had been paid by the indorsers. The evi- dence tended to show that after the note matured G., acting for the in- dorsers, made an arrangement with the plaintiff corporation, by which he was to give it their note for the same amount ; that he gave it such note, signed by W. H. and P., and the note in the suit was delivered to him. The principal question at the trial was, whether the new note was given in payment of the note in suit, or merely as a collateral se- curity for it. Upon this issue the court instructed the jury that, as- the transaction took place in Connecticut, it was to be governed by the law of that State : that by that law the giving of a promissory note OF STANDARD DECISIONS. 359 was not presumed to be in payment of a preexisting debt, and there- for, before they could find for the defendant, they must be satisfied that, by the agreement of the parties, the plaintiff received the new note in payment of the note in suit. Held, also, the plaintiff, having requested an instruction, that the presumption of law is that the holder did not intend to accept the note in payment, and to discharge the maker of the note in suit, and, unless the jury find that a distinct agreement was made to accept the note in payment, they cannot find that it was accepted in payment, and the instruction being given in substance, though not in the words requested, that the plaintiff had no ground of exception. Connecticut Trust Co. v. Melendy, 119 Mass. 449. 2634. A promissory note, the following being a copy thereof: "$2,268.00. Boston, February 1st, 1872. For value received, I promise to pay to Benjamin B. Newhall, or order, $2,268.00 in one and a half years, or sooner, at the option of the mortgagor, from this date, with interest, to be paid semiannually, at the rate of seven per cent, per annum during said term, and for such further time as said princi- pal sum, or any part thereof, shall remain unpaid. Secured by mort- gage of real estate in Boston, Mass., stamped as required by U. S. Internal Revenue Laws, to be recorded in Suffolk Registry of Deeds. (Indorsed) Waving demand and notice. Benjamin B. Newhall." Held, that each of the instruments in suit expresses a promise to pay a certain sum of money in a year and a half from its date," or sooner, at the option of the mortgagor," with interest, at a certain rate, " dur- ing said term." The principal sum is to be paid, either at the time specified, or at any earlier time that the mortgagor may elect. The interest is to be computed only until the note is paid. Both the time of payment of the principal and the amount of interest are uncertain, and depend upon the election of the mortgagor, who would seem, from the memorandum upon the note itself, to be the maker of the note. But if he were a third person, it would not aid the plaintiff. In either alternative the contract, not being a promise to pay a fixed sum of money at a definite time, lacks the essential quality of a negotiable promissory note, and cannot be sued as such. Way v. Smith, 111 Mass. 523; Hubbard v. Mossely, 11 Gray, 170; Story on Notes, 22 ; Stults v. Silva, 119 Mass. 137. 2635. A promissory note executed by a married woman in the or- dinary form, and perfect in its terms, the fact, that in order to make it binding upon her, the addition of other terms not suggested by the paper itself is required, i. e., an expression of an intent to charge here separate estate, does not justify the payee in making such an addition after delivery of the note and without her knowledge and consent; and if so made it is a material alteration which vitiates the instrument. An authority, however, given by the maker to the payee, to add any- thing to the note which counsel when consulted may suggest to be needful to make the note " right, legal and proper," is sufficient to authorize such an addition as will make the note legal and binding upon her, and it is not material that she is not advised of the precise terms of the addition. Taddiken v. Cantrell, 69 N. Y. 597. 2636. A promissory note made for the accommodation of the payee, but without restriction as to its use, an indorsee taking in good 360 MONROE'S DIGEST faith as collateral security for an antecedent debt of the payee and in- dorser, without other consideration, occupies the position of a holder for value, and can recover thereon against the maker. The precedent debt is a sufficient consideration for the transfer, and no new consider- ation need be shown. It is only where the note has been diverted from the purpose for which it was intended, by the payee, or where some other equity exists in favor of the maker, that it is necessary that the holder should have parted with value on the faith of the note, in order to enforce the same. Grocers 1 Bank v. Penfield, 69 N. Y. 502. 263T. A promissory note made payable " at any bank " in a speci- fied city, proof of presentation at any bank in such city, and due pro- test and notice, will bind the indorser. The protest of a note paj'able " at any bank in Savannah, Georgia," showed that the note was pre- sented for payment " at the Southern Bank of the State of Georgia," but did not expressly state that this bank was in the City of Savannah. The caption showed that the protest was in the City of Savannah, Georgia, and the protest cited that the notary resided in that city. After showing demand and refusal of payment, etc., it concludes: " Thus done and protested in the City of Savannah aforesaid." Held, (1) The protest sufficiently showed that the bank, at which demand was made, was located in the City of Savannah. (2) Parol proof was admissible, in connection with the protest, to show that a bank of the same name as that mentioned in the protest, was located in the City of Savannah, at the date of the note and its protest. Boit & M. Me- Kenzie v. Corr, 54 Ala. 112. 2638. In an action on a promissory note by the payee against the maker, on the issue of payment, it appeared by an agreement of even date between the parties, that the maker was to transfer to the paj-ee certain shares of stock in a corporation as security for the payment of the note, and, in case of his failure to pay, the payee was to take the stock in full satisfaction ; that, before the note became due, the maker executed an instrument purporting to be a transfer of the stock to the payee, and produced a certificate of stock, which stated that the maker was owner of the stock, and that it was only transferable on the books of the corporation ; and that these instruments, together with the original agreement, were deposited by mutual consent with a third per- son. Held, that the transfer and certificate were admissible in evi- dence ; that it was competent for the judge, who tried the case without a jury, to find that the third person held the stock ; that the transfer conveyed a title between the parties ; and that the maker might testify that he had paid for the stock in full. Brown v. Smith, 122 Mass. 589. 2639_ A promissory note in the usual form, with interest coupon notes attached, but containing a clause that if default be made in the payment of any instalment of interest when the same becomes due, and such default shall continue for thirty days, then the principal sum shall, at the election of the holder of said note, become due and pay- able, such election to be made at any time after said thirty days, with- out notice, is such an obligation as is denominated in law a promissory note. Sea v. Glover, 1 Bradwell's 111. App. Rpts. 335. 2640. In construing the contract of guaranty thereon, it is imma- terial whether the instrument is technically a promissory note or not. It is an obligation, the performance of which the guarantor had a right OF STANDARD DECISIONS. 361 'to guarantee, and the undertaking of the guarantee is that the maker of the note shall meet his undertaking according to the terms and spirit of the contract, and on a failure so to do the contract of guar- anty is broken, and the liability of the guarantor arises. Ibid. 2641. The guarantor is liable on his contract when the holder of the note elects to declare the whole sum due by reason of default in payment of interest, even though the principal sum is not due, by the terms of the note. Bringing suit is sufficient notice of the election of the holder of the note to declare the whole sum due. Ibid. 2642. This action was upon a promissory note, made and executed by the S. J. W. and indorsed, among others, by defendants, H. and E., for the accommodation of said corporation, and discounted by plain- tiff. The defence was that after the indorsers were duly charged the note was paid by the substitution of a renewal note, not indorsed by the defendants, and the payment of the discount, and when the first re- newal note became due, the discounting of another note, to take up the first renewal note, which second renewal note was also without the indorsement of the defendants. The court found, among other things, in substance, that at, about or shortly after the maturity of the note in suit, the maker, by its treasurer, Bean, presented to the plaintiff another note dated September 19, 1872, and in all other respects pre- cisely like said first note, except the indorsement of the defendants E. & H., and requested the plaintiff to take the same in renewal of said first note. The plaintiff refused without the indorsement of E. & H. That thereupon Bean left the second note with the plaintiff, together with a sum which would amount to the discount thereon, saying he would procure E. & H. to call at the plaintiffs bank and indorse the same as they had agreed. That thereupon, and solely in anticipation that said indorsements would be made, the plaintiff's bookkeeper entered aid second note on the books of the plaintiff. That at or about the maturity of the second note, the same not having been indorsed by E. & H., the said iron works by their treasurer, presented the plaintiff another note dated November 21, 1872, and in all other respects pre- cisely like said second note, and requested the plaintiff to take the ame in renewal of said first note. This the plaintiff refused to do, unless the indorsements of said E. & H. were procured thereon. Said Bean therefore took said second note and left said third note with the plaintiff, together with a sum which would amount to the discount thereon, saying, he would have said E. & H. call at the plaintiff's bank and indorse the same, alleging some excuse why they had not already done so. That neither E. nor H. ever called or indorsed said note. That said first note has not been paid or renewed, or the payment thereof extended in any manner. That neither said second or third note was discounted by the plaintiff or taken in renewal of said first note. Court of Appeals, Miller, J. /This case involves a question whether there was an extension of the time of payment of the note upon which this action was brought, and a suspension of the right of action on the same, by the substitution of a renewal note became due by the discounting of another note to take up the first re- newal note, which also was without the indorsement of the defendants, who have appealed. The judge upon the trial found that the first note was not paid or renewed in any manner, and that neither the second 362 MONROE'S DIGEST nor third note was discounted by the plaintiff or taken in renewal of the first note. I think that these findings are sufficiently supported by the testimony. The proof shows that when the agent of the iron company presented the first renewal note to be discounted, his proposi- tion was declined upon the distinct ground that the note had not the Indorsement of H. & E. The agent then stated that they were to have been on, and said that they would call in and indorse the notes. The same promise was substantially made upon the presentation of the second renewal note, and excuse given why it had not been done. The payment of the discount, it appears, was made upon the same condition, and the facts in connection with the retaining of the possession of the old note tend to establish an agreement that each of the renewal note* were received, and agreed to be discounted only upon the condition stated. The entry on the books of the plaintiff shows, on its face r that the renewal notes were discounted, and that both the original and the second note were paid, and is a strong circumstance against the conclusion that the renewal notes were received conditionally ; but this fact was subject to be, and as the finding of the judge shows, was- explained by evidence to the effect that these entries were made by the bookkeeper, and it is claimed in anticipation that the agreement would be perfected by the indorsement of the two defendants named. It- must be confessed that the testimony is not very satisfactory ; but if we allow full credit to explanation given for the entries made, I do not see why it is not sufficient. Such a state of facts might well exist in entire harmony with the theory that no extension of the time of payment was made, and conceding that such was the case, the find- ing of the judge would be justified. The counsel for appellants claim that the notes were and must have been received upon some agreement,, and that this is expressed in the testimon}' of the cashier, who, in an- swer to the question put, Plow the entries came to be made in the book, answered : Because Bean told him that the indorsers would come in, in a day or two, and indorse. This answer should be con- sidered in connection with all that transpired, and, among other things,, with the explanation subsequently given to the effect that the entry was made by the bookkeeper, as well as the other circumstances. Certainly the testimony referred to was not entirely conclusive, and 1 was for the judge to pass upon in connection with the other evidence- upon the trial. Although the circumstances are quite strong to show that the second and thii'd notes were discounted and the previous note taken up, yet there was an explanation of these facts which, if believed,, tended very much to support the finding of the judge ; and we are not at liberty to disturb the same. Auburn City National Bank v. Hun- siker, et aZ., 72 N. Y. App. 252. 2643. A party authorized to sell property, in the absence of any express limitation of his powers, is authorized to do any. act, or to- make any declaration in regard to the property found necessary to- make a sale, and usually incidental thereto. This action was brought to have three promissory notes, made by plaintiff payable to his own order, and indorsed by him, declared void for usury, to compel a can- cellation thereof, and return of certain stock pledged as collateral, and for an injunction, receiver, etc. The notes were delivered by plaintiff to B. & Co., note brokers in the city of New York, of whom plain- OF STANDARD DECISIONS. 36 tiff had been in the habit of purchasing commercial paper to a large amount, and to whom he was indebted upon account, to be sold at a discount of 12 per cent., and the avails to be applied upon plaintiffs- account. B. & Co. sold the notes to defendant G. at the rates stated. Prior to the execution by plaintiff of any note, and before B. & Co. had received any authority to sell, G. applied to the latter to purchase notes, saying he desired first-class business paper only. B. & Co., said they would have paper of that kind, and mentioned the plaintiff's name. Shortly after they procured a note from plaintiff, with authority to sell at a discount of 12 per cent., and apply the proceeds to his indebt- edness to them. B. & Co., sent this note to G., who purchased it at 12 per cent. Held, it cannot be successfully contended that the notes in question had an inception before they were passed to G. The indebt- edness to B. & Co. would have been a good consideration for them, and had that been merged in them, and they given as evidence of its existence ( Wilkie v. Roosevelt, 3 John. Cases. 66), they would have had an inception prior to the taking of them by G. But they were not given for that indebtedness. They were made for just the purpose for which they were used, to be sold at a discount of 12 per centum per annum. The avails of the sale were to be applied on the indebtedness,, and thus only was the indebtedness affected by them. That being so,, it is plain that they were taken by G. at a usurious discount ; and that they are void, unless Ahern is estopped from setting up the usury. An estoppel arises in such cases when the maker of the note, before- the sale of it, has declared to the buyer that it is a business note, and the buyer has so acted thereupon as that he will be harmed if the usury is known. Was Ahern brought within that rule ? He did not in person make such declarations. It is claimed that B. & Co. were his agents, and that they made such declarations acting as his agents, and with power to make them. We will first see whether they did so- represent, and then whether they had authority so to do ; or, if not, whether their act in so doing had been adopted and satisfied by Ahern. Ahern v. Goodspeed, 72 N. Y. App. 108. 2644. The trial Court found that B. & Co. made declarations to G.,. at the time, and of a purport sufficient to bring them within that rule r and that G. acted upon those declarations. It is manifest that he would be pecuniarily harmed if the usury is shown, and the notes de- clared void therefor. The plaintiff urges, however, that there was no evidence to sustain the finding above mentioned. The testimony thnt the declarations were made by B. & Co. is sufficient to sustain the find- ing in its substance, so far as the making is concerned. G. asked of them for first-class business paper. They said they had a good supply. They opened their book and began to show their business paper. He said he wanted first-class business paper, secured by collaterals. They told him they had just the notes some of that class of paper that is, as I read it, first-class business paper, secured by collaterals. He had be- fore that bought paper of them impliedly business paper. It is shown that it was accompanied by collaterals. The}* said that they would have some of that that is, paper of that character ; and then men- tioned the name of Ahern. They said that they had some of that kind of paper, and told him about the standing of Ahern. All that had been before declared concerning it still attached to it, and made a part 364 MONROE'S DIGEST of the continuous transaction. It was taken by G., and sold by B. & Co., as the note which was the subject of offer by them, and of considera- tion by him, and of his and their acts and declaration. It was taken in reliance thereon. Though at the hour, or during the daj r , of the making of a representation as to property offered for sale, the subse- quent vendee, then negotiating for it, or the like of it, does not con- clude a bargain for it, if he afterwards, as a continuation of the negotia- tion, becomes a purchaser, the representations are still a part of the res gestse, and bind the maker of them (see per Holt, C. J. Lyney v. Selby, 3 La. Raym. 118-20; Wilmot v. Nurd, 11 Wend. 584). As to the other two notes, the testimony of G. is explicit that B. & Co. told him, at the time of sale of them, that they were business paper, and the best kind of business paper. From all that is testified to by G., the inference is easy and natural that he would not have taken the notes, had he not believed that they were business paper, and that he so believed, from what was said and took place between B. & Co. and him. Ibid. 2645. If B. & Co. were agents of Ahern, with authority to make such declarations, and to do such acts concerning the notes, he also is estopped. B. & Co. were not the agents of G. He went to their place of business to buy of them what they had to sell, for themselves or others. They did not own these notes. If they had owned them, the notes would have had an inception in their hands, and a different ques- tion would have arisen. So they did not sell them as their own. They sold them for a principal, who could be no other than Ahern. They had been his agents in brokerage, or other pecuniary transactions, for :some time. It was from such things that his indebtedness to them grew up. They charged him their commission on the sale of these notes to G., and thus he paid them their hire as his agents. His in- debtedness was paid by the sale of these notes, and he received and re- tained a check of B. & Co. for a balance thereafter due to him from the .avails of the sale. Ibid. 2646. Here arises an interesting question in the case. When B. & Co. made the representation to G., upon which the first note was taken by him, that note was not in existence, nor had Ahern authorized them to sell a note of his to G. or other person. It is said that they were not then his agents, and that whatever they said at that time could not affect him. It is not needed that there be an express act of ratification, in order to hold the principal. His subsequent assent may be inferred from circumstances, which the law considered tantamount to an express ratification. And the acts of the principal are to be con- strued liberally in favor of the adoption of the acts of an agent. ( Cod- wise v. Hacker, 1 Caines R. 526, per Kent, J. p. 540.) It already ap- pears that Ahern know that the first note made by him was to be sold by B. & Co. He also knew, as his testimony shows, that it was to be sold in pursuance of a prior negotiation at a discount of twelve per centum per annum. He knew that the note was not business paper. He had been a large purchaser of paper of B. & Co., hence knew their mode of effecting sales of paper. It is to be inferred that he knew that in the purchase of paper, at a greater rate of discount than seven per centum per annum, the buyer usually exacted a representation that the paper sold was business paper, so that he might rely upon the fact, OF STANDARD DECISIONS. 365 if indeed the paper was such, or upon the estoppel if it was not. Ibid. 2647. Ahern adopted the results of B. & Co.'s acts and declara- tions. He received and has kept the fruits of their action with G. It is a fair inference that he falls within the second branch of the princi- pal, which we have above stated, by which a person ratifies the acts of one acting as his agent, without authority at the time. The maxim r is, omnis ratihabitio retrotrahitur et mandata priori acquiparetur. Every ratification is retrospective, and is equivalent to a prior com- mand. On this ground the plaintiff Ahern is to be held estopped from setting up usury in the first note. On the ground of a prior authority, he is to be estopped from setting up usury in the other two- notes. Ibid. 2648. Drafts did not specify any place of payment ; they were drawn and discounted in Canada. Defendant pleaded usury. Held t that the contract was to be governed by the laws of Canada, not of this State, and as by the laws of Canada usury is not a defence, the plea- was not sustainable. Merchants' Bank of Canada v. Griswold, 72 N. Y. Ap. 472. 2649. It appears that the plaintiff's intestate, G., and the defend- ant lent to one J., the owner of a patent right, $5,000, G. contributing $1,000 and the defendant $4,000. J. gave his note therefor to the de- fendant, payable in four months, and assigned to him the patent right as collateral security ; and also gave him an agreement to convey an interest in the patent right for the benefit of himself and G. It ia further agreed that they should be jointly interested in the loan, the collateral security and the agreement to convej r an interest in the patent in the proportion of one to four. At the same time the defend- ant gave the note in suit to G. as evidence of his interest in the loan and security, with the express agreement that it should not be de- manded or paid until the defendant should receive payment of the loan to J. At maturity J. did not pay his note, and with the consent of G. the patent right was sold by the defendant at auction to one T. for an amount equal to the sum, with interest, for which it was held as collateral security ; and, at the request of G., the defendant took T.' note for the amount, with the agreement that the defendant should hold it as the joint property of himself and G., and that a company should be formed to use and work the patent. This was in effect carrying out and executing the agreement previously made, that defendant should not be called upon to pay his note till J.'s note was paid, by substitut- ing for payment in cash and interest to the same amount in the note given by T. This agreement is not inconsistent with terms of the note. It was made when the note was due, after the sale of the collateral se- curity, when G. had the right to enforce the payment, and when the defendant could have paid it from the proceeds of the sale, instead of taking the note of T. It was a mode of payment agreed upon between the parties. Ward v. Winship, 12 Mass. 480. The agreement had a sufficient consideration in the fact that the defendant took the note in- stead of cash at G.'s request. A.'s, an additional agreement, was made at the same time, which was part of the foregoing, as to the use the de- fendant might make of the note, which he held for their joint benefit. And it was agreed that if the defendant would subscribe to the stock 366 MONROE'S DIGEST of the company, and pay for the same with the note held for their joint benefit, the note in suit might remain, and the defendant should not be called upon to pay it, until the profits of so much of the stock as equitably represented the amount of the note should be sufficient to pay it. Relying on this agreement, the defendant afterwards subscribed to the stock, paid for the same with the note of T., instead of demanding A cash payment from T., and he has never received any profits what- ever. Gr. having agreed to this method of payment, his administratrix 3240. The statute providing that, where the principal maker of a joint note dies, the payee or assignee shall present the same against the estate of the decedent for allowance, and that, upon a failure to do- so, the sureties shall be released, is not a mere statute of limitations. On the contrary, the statute forms a part of the contract, upon which the sureties have a right to rely, even in case of a note payable to the trustees of schools ; and if the note is not presented within the time limited by the statute, the sureties will be released. House v. Trustees of Schools, 83 111. 368. 3241. Where, in an action on a promissory note against several apparently joint makers, one of the defendants appear, and, upon de- fault of his co-defendants, and without any notice to them other than the original summons in the cause, alleges and obtains a judgment against them, that they are principals and he a surety only, and asks and obtains a decree that execution be first levied on their property, such judgment and order, as between the defendants, are utterly void for want of proper notice, and will not support a plea of a former ad- judication of such matter. Fletcher v. Holmes, 25 Ind. 458. In Pat- tison v. Vaughan, 40 Ind. 253, and Feutriss v. The State, ex rel., etc., 44 Ind. 271, appear in conflict, but those decisions were announced over- ruled by the court in Joyce, et al. v. Whitney, et al., 57 Ind. 550. Held r further, the complaint of one defendant against another, to establish the alleged suretj'ship of the former, is not a mere cross-corn plaint, but is a new and original proceeding which cannot be tried upon the sum- mons issued by the plaintiff. Ibid. 3242. The circumstance that a security has become or is invalid and cannot be enforced, either at law or equity, does not entitle a party to come into a court of equity to have it decreed to be surrendered or extinguished without paying the amount equitably due thereon. Tut' hill v. Morris, 81 N. Y. 95. 3243. If a surety sign a bond which he is not prevented from reading by any trick or artifice of the obligee, without reading it or having it read to him, in ignorance of its contents, he cannot avoid his obligation on it because it is other than he thought it to be. Johnston r et al. v. Patterson, 114 Pa. 398. 3244. It is true there is a line of cases which decide that when an illiterate man executes a writing which has been falsely read to him,, he is not bound. Green v. North Buffalo Township, 56 Pa. 110 ; Schuylkill County v. Copley, 67 Ind. 386. 3245. It is well settled that no mere indulgence by the creditor toward the principal debtor will release the surety, provided the creditor does not by any affirmative act diminish the value of any security that he may have, or tie up his own hands against the principal debtor, or release any claim he may have acquired against the property of the latter. Clopton v. Spratt, et al., 52 Miss. 251. 3246. While indulgence and passiveness by the creditor with re- gard to collateral placed in his hands by the principal debtor will not release the surety, yet if, by any improper or unskilful dealing with such collateral, he impairs its value, or if he so treat it as to make it his own, the surety will be, pro lanto, released. Clopton v. Spratt, et al, 52 Miss. 251. 446 MONROE'S DIGEST 3247. The officers and managers of a railroad or other stock com- pany stand to its stockholders and bondholders in a very legitimate sense, in the capacity of trustees of their property, and are bound to act in their interest. Jackson v. Ludeling, 21 Wall. U. S. 616. 3248. Indulgence or non-action, though in the meantime the prin- cipal should become insolvent, unaccompanied by any act of the credi- tor whereby the hazard is increased, will not discharge the surety ; nor the failure to issue execution, or to point out property, or, if the execution be levied on the principal's property, the failure to make up an issue with a claimant who has replevied ; nor the failure to enroll a judgment on a forfeited forthcoming bond, whereby a junior judgment obtained priority. But if indulgence is granted for a definite time pur- suant to an agreement supported by a valuable consideration so as to tie up the hands of the creditor, and the surety does not consent to such an agreement, he will be exonerated from liability. Wright v. Wa.tt,etaL, 52 Miss. 634. 3249. Any unauthorized variation in an agreement which a surety has signed, that may prejudice him, or any substitute an agreement different from that which he came unto, discharges him. Smith v. United States, 2 Wallace, U. S. 219. 3250. The owner of negotiable securities which have been stolen may follow them and reclaim them, in whose hands soever they may be found : and when shown that the securities had been stolen from the owner, the burden is upon the holder to show that he took them in the usual course of business and for value, Robinson v. Hodgson, 73 Penn. St. 202. 3251. In trover for such securities, merely showing that they were in possession of another from whom defendant or his immediate bailor received them is not a defence. Ibid. 3252. A holder's possession is prima facie evidence of ownership, because the presumption is that it was honestly acquired. Ibid. 3253. A surety's right of action against a co-surety does not ac- crue until he has paid in excess of his proportionate share of liability. Magruder v. Admire, et al., 4 Mo. Court of Appeals (St. Louis) 133. 3254. In an action for contribution by a surety against one of several co-sureties, the measure of defendant's liability is controlled by the number of his co-sureties who remain solvent. Ibid. 3255. Contribution, security on official bond who aids principal in breach, not entitled to from co-securitj 7 . Scofield v. Gaskill, et al., 60 Ga. 277 ; also, Healey, Berry & Co. v. Scofield, 60 Ga. 450. 3256. In an action upon an undertaking, the law will not increase or enlarge the terms of the undertaking to the prejudice of its signers, nor create a liabilit}' against the sureties which they did not intend to incur, and which is not within the express conditions of the bond. Hays v. Closon, 20 Kansas, 120. 3257. Judgment on replevy bond in attachment, motion to set aside by principal, because of fatal defect on face of affidavit, overruled, not bar to similar motion by surety. Neal v. Gordon, 60 Ga. 112. 3258. A surety for a tenant is not released as to rents subse- quently accruing, because of a release, nor an extension of the time of payment of rent due. Coe v. Cassidy, 72 N. Y. App. 134. OF STANDARD DECISIONS. 447 3259. The promise of a surety assuring the payment of the price of a specific lot of goods to be sold to the principal debtor, is not a continuing guarantee, and hence does not cover other goods subsequently sold to the principal. Bloom & Co. v. Kern, 30 La. 1263. 3260. A valid agreement to give time on a promissory note to the principal, will discharge the surety. Thompson v. Bowne, 39 N. J. Law, 2. 3261. Discharge of the principal discharges the known surety. Paddleford v. Thacher, 48 Vt. 574. 3262. A surety or creditor has a right to have any collaterals the debtor may have pledged to either for the payment of their debt, at any point in the transaction, applied to the payment of the debt. Price v. Tusdell, 28 N. J. Eq. 200. 3263. Under the law of this State the discharge in bankruptcy of the principal on an appeal bond, will not release the surety on that bond from any obligation he incurred by signing the bond. The surety who pays the debt of his principal is subrogated, by mere operation of law, to all the rights of the creditors. No act of subrogation by the creditor in his favor is required. Serrae Hijo v. Hoffman & Co., 30 La. 67. 3264. The general rule, that a contract void as to principal, is void also as to surety, does not apply where a person, sui juris, guar- antees the obligation of, or becomes surety for, a married woman, minor or other person incapable of contracting. Hicks v. Randolph, et al., 59 Tenn. 352 (3 Baxter). 3265. A surety upon a judgment by confession has the right to expect that the judgment will be entered of record within a reasonable time ; and he is released from liability by an agreement between the judgment creditor and his principal that the judgment shall not be recorded, in pursuance of which it is not entered of record until after the lapse of an unreasonable time. Hancock v. Wilson, 46 Iowa, 352. 3266. Sureties in a bond given to secure performance by their principal of future mercantile engagements, and in which no period of limitation of liability is fixed, who have notified the obligees that they will no longer be bound for future transactions, are held discharged from liability for transactions thereafter entered upon, where no change in circumstances by the obligees has occurred on the faith of a longer continuance of the suretyship, and the}' are not prejudiced by such withdrawal. Jendevine v. Rose, 36 Mich. 54. 326*7. In a suit by a bank against a late cashier and the sureties on his official bond, upon the death of the cashier insolvent, the cause will proceed against the sureties, though no administrator of the cashier may have been appointed and made a party defendant. Farmers' and Mechanics' Bank v. Polk, et al., 1 Del. Chancery, 167. 3268. Proof of debt in bankrupt court by judgment creditor dis- charges lien, and indorser is discharged to extent of injury thereby received. Evidence of older liens sufficient to exhaust all of princi- pal's property, admissible to show that no injury was thereby done to indorser, and if such be the fact, he is not discharged. Surety assent- ing to application of proceeds of property of principal to junior liens, 448 MONROE'S DIGEST receiving part himself, not discharged. Nor is indorser discharged, who was also counsel for principal in obstructing collection of debts, by acts which grew out of litigation conducted by such counsel. Jones v. Hawkins, 60 Ga. 52. 3269. In an action by the payee against the estate of a deceased co-surety on a promissory note, the administrator set up as a defence that his decedent's co-surety, within the time necessary for service of process, after the maturity of such note, had executed an assignment for the benefit of his creditors, providing therein that the assignee should complete his trust within three years, to which assignment the plaintiff had assented. Held, that such assent and assignment would have been no bar to an action on such note, against such insolvent surety, within three years. Held, also, that such assent was not nec- essary, to the validity of such assignment. Held, also, that such assent not having injured the decedent, did not release his estate. Paul v. Logansport Nat. Bank, 60 Ind. 199. 3270. A surety has the right to stand upon the very terms of his- contract ; and if such contract be altered or varied in any material point without his consent, so as to constitute a new agreement varying substantially from the original, he is no longer bound. Any subse- quent addition to or deviation from the contract, is such an alteration as will discharge the surety. But if by the terms of the original con- tract, additions to, or alterations in the work is provided for, or left to the judgment and discretion of the other contracting party, either without limit or within certain limits, then the variation, if within the limits prescribed, is allowed by the contract itself, and the surety can- not complain of a variation which he has agreed to by the original con- tract. Wehr v. German Lutheran and Ev. Congregation of Baltimore r 47 Md. 177. 3271. When a judgment is rendered against principal and surety, in which the relations of principal and surety are properly certified, the surety cannot thereafter obtain an injunction to stay the levy of an execution upon his property, on the ground that prior to the judg- ment the creditor agreed with the principal, in consideration of the latter's withdrawing his answer, that he would not attempt to collect the judgment from the principal until he had exhausted the surety's- property, nor on the ground that the creditor had delayed issuing exe- cution on the judgment until the principal, who had personal property sufficient to satisfy the judgment, had become insolvent. Fox v. Hud- son, 20 Kansas, 246. 3272. In an action between co-sureties for contribution, the de- fendant cannot avail himself of an indebtedness of the plaintiff to the principal as a defence. Davis v. 'Toulmin, 77 N. Y. 280. 3273. A parol promise to indemnify one, if he will go security for a third person, is within the statute of frauds and perjuries and can- not be inforced. Nugent v. Wolfe, 111 Pa. 471 ; Allshouse v. Ramsay r 6 Wheat. 331 ; Shoemaker v. King, 40 Pa. 107 ; Miller v. Long, 45 Pa. 350 ; Townsend v. Long, 77 Pa. 143. 3274. When negotiable notes, payable to bearer, are deposited as- collateral security for a debt, the creditor is not a mere mort- gagee, on lien holder, who, in case of the death of his debtor, must prove up such debt in the Probate Court. He may, after his debt is- OF STANDARD DECISIONS. 449 due, collect and apply the proceeds to his debt. If such notes are un- collectible, and the creditor be driven to treat them as mere personal property pledged to secure the debt, and to invoke the aid of the courts to realize upon the security, then the matter might come within the reach of the Probate Laws, and the creditor be compelled to prove his claim, and the securities be administered under the Probate Laws. An answer resisting a suit for the possession of negotiable notes in possession of defendant, on the ground that they are held as collateral security, should show the amount of the debt secured by them. Huyler v. Dahoney, 48 Texas, 234. 3275. A person indebted by bond, paid a balance due upon it in notes of an insolvent bank, which was not known, at the time, to have stopped payment. Held, not to be a discharge in equity of the debt, but that the creditor might recover the balance due before such pay- ment. Jefferson, et al. v. Holland, 1 Del. Chancery, 116. 3276. If the maker of a promissory note, as collateral security for its payment, assigns personal property to the payee, and, as addi- tional security, third persons sign the note as sureties, the liability of the sureties becomes fixed at the time the collateral security is ex- hausted. Dussol v. Bruguiere, 50 Cal. 456. 3277. The liability of sureties on a promissory note is not dis- charged by the Statute of Limitations until four years after their lia- bility becomes fixed. Ibid. 3278. When several persons are sureties, and all but one pay the whole sum for which all became liable, those who pay may maintain a joint action for contribution against the one who failed to pay his pro- portion, provided they jointly paid the money. Ibid. 3279. If one of several sureties dies, his executor may be joined with a part of the sureties in an action against another for a contribu- tion. Ibid. 3280. If one of two sureties dies, and his executor pays all the money for which both became liable, without having the claim allowed in the Probate Court, he, as executor, can recover the demand for a contribu- tion from the other surety. Ibid. 3281. A settlement in the Probate Court, b}* the principal, ia binding upon the surety, not because he is a party to the suit, but be- cause it is an act his principal is, by law, required to perform, and is within the condition of the bond. Neither the settlement nor decree determines the fact of suretyship ; or, if it once existed, that it con- tinned. Gravett v. Malone, 54 Ala. 19. 3282. A confession of judgment by a principal, has on the surety only the force of a private agreement between the principal and his creditor. Even after a judgment against the principal, any agree- ment made with him by the creditor, without the assent of the surety, which defers payment, or in any wise impairs the recourse of the surety against the principal, will discharge the surety. Allison v. Thomas & Rosenfeld, 29 La. 732. 3283. When the owner of a note holds collateral security for the same, the release of such security does not discharge a surety upon the note, if such release was given at the surety's instance and with his consent. Pence v. Gale, 20 Minn. 257. 3284. In an action on a promissory note, payable in bank, against 29 450 MONROE'S DIGEST a principal and surety, wherein judgment by default had been rendered against the principal, the surety thereafter answered, alleging that, though requested by the surety to levy on certain personal property belonging to the principal, the plaintiff had caused the sheriff to hold the execution without levy, and that the principal had thereafter died insolvent. Held, on demurrer, that, even if such answer could be made sufficient, it is insufficient for want of an averment that such property was subject to execution, and of a value sufficient to satisfy the same; it being an answer to but part, though pleaded to the whole, of the complaint. Scott v. Shirk, 60 Ind. 160. 3285. Upon principles of equity, a surety, as between himself and his principal, stands upon a different footing, in some respects, from an ordinary creditor. He is entitled to full indemnity against the con- sequences of the default of the principal, and is, therefore, entitled to call upon him for reimbursement not only of what he may have been obliged to pay in discharge of the obligation for which he was surety ; but also of all reasonable expenses legitimately incurred in conse- quence of such default, or for his own protection. These do not in- clude expenses incurred in defending himself against the just claim of the creditor, nor remote and consequential damages sustained by the surety, such as sacrifices of property for the purpose of meeting his liability, loss of time, injury to business, expenses incurred in seeking to avoid payment, etc. The cases hold that, on the debt be- coming due, the surety may go into equity to compel the principal to pay, and the creditor to receive payment ; and that he may also, in equity, compel the creditor to proceed against the principal debtor for the collection of his demand, upon giving security and indemnifying the creditor against delay and expenses. Thompson v. Taylor, 72 N. T. App. 32. 3286. Facts, and not mere conclusions of law, must be stated in pleadings. Thus, in an action against a surety upon a promissory note, where forbearance to the maker is sought to be interposed ; it is not sufficient to cover merely that " for good and sufficient consider- ation " further time was given. The consideration must be stated. 3287. The discharge of a surety upon a promissory note, on the ground of forbearance, may, in an action against the surety, be given in evidence under the general issue. Winne, et al. v. Col. Sp'g Co., 3 Colo. 155. 3288. To exonerate a surety from liability upon the ground of forbearance, the extension must be for a time and upon a consideration binding upon the creditor. Ibid. 3289. Limitation laws act upon and do not extinguish rights. Hence, surety is not absolutely discharged because suit against him would be barred in Courts of this State by section 2917. of Code. For- eign jurisdiction, if sued there, limitation laws of this State would not avail him. New promises by surety, after bar as to him, but before bar as to principal, though made in ignorance of true limitation law, believing the remedy not barred as to himself, binding in absence of fraud and abuse of confidence on part of creditor. Langston Adm^rs v. Aderhold, 60 Ga. 376. 3290. N. became suret}' upon a note of L., and the latter executed a mortgage to secure him against loss by reason of his becoming OF STANDABD DECISIONS. 451 surety ; judgment having been obtained upon the note against both L. and N., and the other property of L. being found insufficient to satisfy the judgment, N. directed the sheriff to levy upon the property covered by his mortgage, which was accordingly sold to satisfy the judgment. Held, that the sale waS valid and absolute and that N. <;ould not enforce his mortgage against the property. Exline v. Lowery, et al., 46 Iowa, 556. 3291. Certain sale notes were deposited with defendants as col- lateral security for the payment of a note, indorsed by the plaintiff for the accommodation of one M., and discounted by defendants for M. The collaterals were of the same value as the principal note, and were to be paid into the bank and applied on the note, so that when they were paid, the note also was to be paid and the plaintiff's liability to cease. After the principal note be-, came due, defendants denied that they held the sale notes as collaterals and refused to give the plaintiff any information as to what had been paid on them ; and the plaintiff then paid the note in full, and de- manded an assignment of the collaterals, the plaintiff's payment being made by a part payment in cash and his note for the balance which he paid at maturity. Held, that the plaintiff could not maintain trover against defendants for the collaterals ; for although, under 26 Vic. Ch. 45, 2, he was entitled to the immediate possession of them, he had not until assignment any property in them vested in him. Semble, that the plaintiff's remedy would be by a special action on the case against defendants for not assigning the notes to him after demand -duly made. Held, however, that plaintiff was entitled to recover as money had and received to his use, the amount paid to defendants on the collaterals, and that the fact of his only paying part of the prin- cipal note in cash and giving his note for the balance did not take away his right. Semble, also, that his right would not be affected ven if the payment on the collaterals were after his payment. Cor- nish v. Niagara District Bank, 24 Upper Canada, Com. Pleas Rpts. 262. 3292. On a suit by the government against the sureties of a post- master on his official bond, it is no defence that the government, through their agent, the Auditor of the Treasury of the Post Office Department had full notice of the defalcation and embezzlement of funds of the plaintiff before them, and yet neglectfully permitted the said postmaster to remain in office, whereby he was enabled to commit all the default and embezzlement, etc. Jones, et al. v. United States, 18 Wall. U. S. 662. 3293. A person in possession of land who takes a lease from an- other who has bought and claims the land leased, is estopped from denying the title of such other person, or showing that such person was but trustee of the land for him. Lucas v. Brooks, 18 Wall. U. S. 436. 452 MONROE'S DIGEST TAXATION. 3294. A profit upon the capital or investment- of a corporation,, either made or passed to the stockholders without declaration of a. dividend, or a dividend declared, becomes the measure of a State tax on dividends. If a dividend be declared, the stock is taxable on the basis of the declaration, and the company is estopped by the declaration whether the dividend be earned or not. Commonwealth v. Pittsburg r Fort Wayne & Chicago Railway Co., 74 Penn. St. 83. 3295. Solvent debts, promissory notes and mortgages are not liable to taxation. People v. Hibernia Savings and Loan Society, 51 Cal. 243 ; also, Bank of Mendocino v. Chalfant, 51 Cal. 369. 3296. The return of the city tax assessor, setting forth the amount- of the taxable capital of a banking corporation, will be held as true, until the contrary has been shown by the bank. 3297. When a bank claims that a portion of its capital is invested in United States bonds, stocks, or currency, it must show affirmatively the exact amount of its capital so invested. Otherwise, its capital thus- invested will not be exempt from taxation. The mere fact that at various periods during the year the tax is assessed, the bank " held ' r large amounts in United States currency, will not exempt its capital from taxation to the extent of those amounts, unless the bank proves that the currency so " held " was a part of its capital. 3298. While the ordinary deposits of United States currency (or national bank notes), in a bank by its customers, enter into, and form a part of its assets, they at the same time create liabilities of the bank, and thus offset themselves as assets. Such deposits, therefore, do- not constitute a portion of the capital of a bank, and hence the bank cannot claim that its capital shall be exempt from taxation to the amount of such deposits. The capital of a bank which is subject to- taxation, as capital, is made up of the balance of its assets remaining after deducting the debts, that portion of its assets exempt from tax- ation, and that portion which is taxed under another name as capital. 3299. United States currency and national bank notes belonging to a bank, although non-taxable, are a part of its assets, and in as- certaining the real amount of its taxable capital, such currency, and notes, must be held as compensating the debt due depositors, and thus pro tanto, extinguishing the liability of the bank. City of New Orleans v. New Orleans Canal & Banking Company, 29 La. 851. 3300. A tax sale made on a day other than that provided by law confers no title. McGehee v. Martin, 53 Miss. 519. 3301. A tax collector's deed, which describes the land conveyed as " 200 acres in 2, t. 12, range 1 east," is void, for uncertainty in the description. Yandell v. Pugh, 53 Miss. 295. 3302. The revenue act does not make a corporation liable for taxes assessed on its capital stock, when such capital is represented by shares of stock which are not the property of the corporation. People v. National Gold Bank, 51 Cal. 508. 3303. The relator was assessed for certain shares of the capital stock of a national bank owned by him ; he served upon the assessors an affidavit to the effect that after deducting all just debts, he had no OF STANDARD DECISIONS. 453 personal property liable to taxation. He appeared before the assessors and was examined ; the examination disclosed that his indebtedness ex- ceeded the value of his taxable personal property, including the stock. A part of the indebtedness was a promissory note of $25,000 on de- mand, the proceeds whereof were used by him to purchase U. S. bonds, which were pledged as collateral for the note. Held, that the assess- ors erred in rejecting the note as an item of indebtedness ; that in the absence of evidence that the debt was not a just one and enforceable against the relator, he was entitled to have it deducted ; and this, al- though the transaction was " a device to escape assessment and taxa- tion." (1 R. S. 391, 9, subd. 4; U. S. R. S., 5219 ; chap. 596, Laws of 1880.) People, ex rel, Thurman v. Ryan, 88 N. Y. 142. 3304. A tax upon a corporation may be proportioned to the in- come received as well as to the value of the franchise granted or the property possessed. The Delaware Railroad Tax, 18 Wall. U. S. 506. 3305. The fact that taxation increases the expenses attendant upon the use or possession of the thing taxed, of itself constitutes no objection to its constitutionality. Ibid. 3306. Under the Act of Congress of February 10th, 1868, and the Act of the Legislature of Pennsylvania of March 31st, 1870, shares of national banks may be valued for taxation for county, school, municipal and local purposes, at an amount above their par value. Jlepburn v. The School Directors, 23 Wall. U. S. Reps. 481. 3307. The tax often per centum imposed by the act of July 13th, 1866, on the notes of State banks paid out after the 1st of August, 1866, is warranted by the constitution. Veazie Bank v. Fenno, 8 Wall. U. S. 534. 3308. The personal property of an insolvent bank in the hands of A receiver is exempt from State taxation. Rosenblatt v. Johnston, 104 U. S. 462. 3309. National bank shares cannot be subjected to State taxation 'when a very large party, relatively of other moneyed capital in the hands of individual citizens in some taxing districts is exempted. Boyer v. Boyer, 113 U. S. 689. 3310. A statute exempting a corporation confers the privilege only on the corporation especially referred to; not upon its successor, unless that intent is clear. Morgan v. Louisiana, 93 U. S. 217. 3311. Immunity from taxation is not such a franchise of a corpo- ration as passes to a purchaser when property and franchise of a rail- road are sold under a decree to enforce a statutory lien. Railroad Co. v. Hamblen County, 102 U. S. 273 ; also, Trash v. McGuire, 18 Wall. U. S. 391. 3312. The question of exemption from taxation of deposits in savings banks, as affecting the rule for the State taxation of national bank shares, was very deliberately considered by this court in Mercan- tile Bank v. New York, 121 U. S. 138 ; and the conclusion reached in that case was reaffirmed in Davenport Bank v. Davenport Board of Equalization, 123 U. S. 83 ; and it is impossible to distinguish this Oregon, 407. INDEX TO CASES. indicate paragraph*. Table of Cases on page 571. Table of Abbreviations, page ABATEMENT AND REVIVAL, Page 5. PARAGRAPH. Action abates when defeated .... 2 Revival of an action 1 ACCEPTANCE, Page 5. Acceptance cannot be invalidated after mailing 9 of lesser sum 8 of promise to pay 3 As accommodation 18 Binding as soon as acceptance letter is mailed 5 in case of conflict of laws . . 17 when meets and corresponds with offers by mail 5, 6, 7 when letter is mailed ... 5 By acting on offer 13, 24 Cannot be countermanded by mail . 9 Contracts made by mails or tele- graph 16 Corrections limited as to time ... 21 Counter proposition destroys vitality of offer 4 cannot be withdrawn .... 4 Departure from terms of offer invali- dates it 7 Draft presented to payee with accept- ance on it 18 Evidence of a balance due 21 Fraud justifies reopening 23 Invalidation of offer 7 Offer acted upon without communi- cation 13 between persons present . . 10 by mail may be revoked . . 6 Order for lottery tickets or other ar- ticle ... 17 Proposal to accept an offer on vary- ing terms 4 To be binding must agree with offer, 4 Verbal acceptance of an order ... 8 Where a guaranty is subsequent to the contract between the prin- cipal and guarantee 10, 16 PARAGRAPH. Without condition, limitations or pro- visions 4 ACCOMMODATION, Page 5. ACCOUNT STATED, Page 7. Account stated is presumptive evi- dence of a balance admitted to be due 21 An account delivered where the debtor neither confirms nor ob- jects to it 19 Fraud, misstate or manifest error jus- tifies the opening of an account stated 23 May be corrected for fraud or mistake, 21 Mere rendering of an account does not make it an account . . . 20-139 Monthly balances are not distinct set- tlements, but the whole is merely a running account 22 Omission to object to an account raises only a presumption of assent . . 20 Parties may, by agreement, limit time in which correction may be made, 21 Presumptive evidence of amount due, 21 Verbal acceptance of officials is bind- ing 3 Where the debtor disclaims all liabil- ity 19 ADMINISTRATORS, Page 8. Administrator's written acknowledg- ment of a debt 24 Administrator cannot avail of any de- fect in a legal proceeding caused by his fault 24 ADMISSIONS AND DECLARA- TIONS, Page 8. Admissions contradicted, raise a ques- tion of fact for a jury 28 (487) 488 INDEX TO CASES. PARAGRAPH. Cannot avail himself of legal defects, 24 Declaration after delivery of as- signed property 25-27 of assignor for benefit of creditors 25 Effect of the admission of a party, 28 Mere fact of joint liability does not give authority 26 One joint debtor cannot bind an- other by his statements. ... 26 Title to a negotiable note cannot be affected by declarations of assignor 27 ADVICE OF COUNSEL, Page 8. Acting in good faith and without gross negligence when advis- ing with counsel 30 Advice will not protect the culpa- ble neglect of any one .... 31 Agreements forbidden by law ex- pressly or by implication . 137-139 Arresting another under advice of counsel 29 Must not withhold impoftant in- formation, etc 30 Must act in good faith with counsel, 30 Need not show that an attorney is skilled in his profession ... 29 Non-member of a firm promise to pay part of debt 141 Party who culpably or negligently withholds from counsel any material fact 31 Person seeking legal advice as to criminal prosecution .... 30 Promise to pay balance of purchase money 140 When party, in good faith, consults with a licensed lawyer . . 29 Where an arrest is required to make a bill rendered binding . . . 19-23 Where counsel advised with is al- ready conversant with facts . . 31 AGENTS, Page 8. Acting within his powers may be- proved in a criminal as a civil case 91 Action maintained against an agent on a contract executed by him . 46 Admission of agent on his author- ity 43 Adverse interest of agent to his prin- cipal 92 Agent acting through subagent . 89 authorized to make and in- dorse notes in the business of the testator 84 in foreign country same as agent at head office 63 PARAGRAPH. Agent of undisclosed principal . . 51 to loan money 32 Agent's act being necessary to ob- ject \ . ... 44 authority, not coupled with interest 66 power to manage business, 62 sale of goods with an inter- est in the proceeds 76 Alteration of an instrument unau- thorized makes it void . . . 102 Assignee or trustee cannot speculate with assigned property . . 78 Authority, in a general sense, cannot be delegated HO of agent to sell land ... 59 to act as " business and finan- cial agent " 54 to adjust a particular loss . 58 to contract for another . . 61 to draw bills anywhere . 87 to invest money 52 Cannot act as agent for both seller and buyer bind principal by a submis- sion to arbitration unauthor- ized Cashier may libel vessels for non- delivery 90 Care in selecting subagents . . . 112 Clerks of an agent are not agents of principal 55 Conditional authority and limita- tion of authority 83 Continuous agency of a long series, 74 Contract executed by agent for prin- cipal 46 Converts property of a third party to his own use 94 Dealing with agent without notice, after his recall 34 Declarations of agent at time of draft 86 of agent may bind principal, 57 40 103 Deduction of par value of U. S. bond from taxes 100 Defendant claims goods were bought for a third person . . 33 Employed for an indefinite period, 93 Endorsing drafts and selling them unauthorized 95 Entre of amount due on note for collection '. . 133 Fraudulently selling his principal's property and embezzling its proceeds 45 Good faith does not exonerate lia- bility of agent 48 Goods sold to a third person ... 33 Government not bound by act or declaration of its agent always, 106 INDEX TO CASES. 489 PARAGRAPH. Illegal acts of agent does not bind principal 41 Inference as to authority of an agent . . . . _ 37,38 Instrument delegating powers . . 77 Legal currency only can be received by an agent except by special authority 97 Money borrowed by agent on credit of principal 60 loaned by agent who retains the securities 73 trusted to settle lawsuit, without consideration .... 72 Negotiable instrument intrusted to another for use 101 Not bound to account to principal until the time filed or a demand, 99 Notice must be taken of the extent of official acts 107 to agent in discharge of his duty 53 ' to agent is notice to prin- cipal 64 Not permitted to profit by his negli- gence 36 Order for goods in which defend- ant's name appeared .... 33 to sell securities 35 Orders of agents to factors ... 47 Ordinary business of a corporation, 54 Paper must be presented at the proper place for payment . . 113 received for collection . . 113-130 Partner, after dissolution, cannot ex- tend liability 49 Parol testimony as to attorney's acts, 47 Payment to agent for goods deliv- ered 70 of collections by collectors . 132 Payments made to an unauthorized agent 56 Person acts by an agent the act is his 42 Power to accept bills for principal, 69 . of attorney " to whom it may concern " 82 to sue for specific debt . . 88 Powers usually exercised by agents, 37 Principal always bound by acts and neglects of his agent ... 65 estops himself from recourse against innocent purchaser . 45 may still hold the agent . 32 accepting part pay for em- bezzled proceeds 45 -^ dealing through an agent under written power of attor- ney 47 Purchaser of bankrupt stock left in hand of seller 81 PARAGRAPH. Purchaser dealing with an agent without knowing he is such . 68 Purchasing goods at half their value, 71 Ratification of an unauthorized act, 136 Refusal of agent to return securi- ties to principal 104 Responsibility of collectors to each other 134 Sale of bonds ordered to be collected void 50 Skill and knowledge must be exer- cised by agents 108 Simple contract by authorized agent in his own name, as agent . . 105 Special instructions must be re- garded in every particular . 109 Statements of agent when selling a note ... 75 Subagents when, may be employed, HI Surplusage words as agency ... 46 Treasurer may delegate a clerk to indorse drafts belonging to the treasury 96 Unauthorized acts of an agent only become binding on principal after ratification upon full knowledge 39 Unauthorized agent's acts .... 39 Unconditionally accepting drafts. . 85 Unindorsed note payable to another, 80 Value of goods sold by agent con- trary to his instructions ... 98 AGREEMENTS, Page 23. Agreements forbidden by law, ex- pressly, impliedly, or against public policy 137 Agreement signed by a majority of insolvent's creditors 205 Commissions agreed to be paid agent by life insurance com- pany .... 142 Court's discretion as to complaint of the judgment 149 Creditor of a firm action on an agreement made with the firm by one not a member .... 141 Debtor upon whose obligations of interest are unpaid 139 Overpayment upon a contract after commencement of action, 150 Parol promise to pay balance of purchase money due under articles of agreement .... 140 Supplemental answer 150 ALTERATIONS OF INSTRUMENTS, Page 24. Alteration of agreement under agree- ments 143 of note after delivery . . 144-148 490 INDEX TO CASES. PARAGRAPH. Appeals from a judgment ... 151 Arrests insufficient to pay judg- ment ....... 158 Averment that a note was materi- ally altered after delivery by plaintiff 144 Change of the form of a paper after assignment 241 Changing date of a note after de- livery 148 Collateral given without property instructions 186 Fraud charged not sustained . . . 154 Harmless overruling of courts . . 174178 Indorsing a blank paper 146 Injunction order restraining action, 157 Insertion of " with interest," or otherwise increase the value of a note 145 Jurisdiction of Supreme Court on appeals 163-173 Lien of judgment on real estate . 153 Money applied pro rata, or other- wise 188 Partnership articles prohibiting one partner indorsing negotiable paper 147 Payment on a certain debt, ordered by debtor 185 AMENDMENTS, Page 26. Adding new cause of action . . . 149 Claiming a judgment for an over- payment 150 Complaint after judgment .... 149 Lunacy case of supersedes. . . . 161 Order of arrest is a provisional remedy 180-184 Overpayment made after the suit was commenced 150 Question not presented on trial . . 155 Upon the trial of an action upon a contract 150 Vacating a judgment to amend . . 152 Where an overpayment may be made a counterclaim .... 150 APPEAL, Page 25. Action to recover money extorted 178 . set forth in a complaint is a fraud and action tried upon that theory 154 After satisfaction of a judgment in favor of plaintiff to vacate it . 152 Amending complaint by adding new courses of action .... 152 Appeal from and order vacating an order of arrest 181 Appellate court's power to decide questions of fact which a sur- rogate had 171 PARAGRAPH, Assuming that an appeal was for some error of law 167 Attorney employed by a lunatic . . 161 Bond required by statute on an action on lost note .... 184 Copying plaintiff's bonds .... 172 Costs of appeal when in discretion of court 175- Court cannot by the mere pr9cess of vacating its orders destroy liens, 153- Death of a party after making an order 161 Decision of surrogate on facts aris- ing on conflicting evidence. . 17Q Entry of an order of discontinu- ance on rilling stipulations . . 160" Erroneous evidence is received to prove a will 166 ruling evidently harmless . 174 Error in the admission or exclusion of evidence 173 From a judgment entered on a de- cision of report of referee. . . 177 Injunction restraining officers, etc., from doing certain acts . . . 157 Insufficiency of the amount in controversy 156" Judgment taken on merits without filing replication 243 that reduces and limits the number of creditors upon a fund, 151 Motion by a junior mortgagor in an action of foreclosure .... 179" Of trustee of a fund for security of an indebtedness due to others, 151 Opinion of lower court as to the basis of its action 183- Order of reference to take proof as to charges against an assignee, 201 of arrest is a provisionary remedy 180 vacating an order of suspen- sion 153- Protection against a collusive settle- ment . 160 Question not presented on trial . . 155- whether there is sufficient cause for action 154 Reduction of the sum of costs and notice of the fact 159' Release of a cause of action after the commencement of suit . . 160 1 Requiring ten days' notice to " ad- verse party," etc 159- Reversal by showing an error in law 168,169- Reviewing order allowing counsel fees 176 Unless special provisions authoriz- ing a review of a question of facts, etc 163-166 INDEX TO CASES. 491 PARAGRAPH. When lien of a judgment on real estate has been suspended . . 153 . sufficient arrests did not come to the hands of executors, 158 APPLICATION OF PAYMENTS, Page 29. Agreement, by debtors, to pay each his portion of their joint in- debtedness 187 Creditor applies payment to suit himself 185 Debtor's assignment of property as collateral generally without dic- tation 186 Directing payment to a particular claim 185 Money collected by sale of collat- eral to secure several claims . 187 Securities to be returned to debtor when certain balance was paid, 188 When money should be paid pro rata to creditors ..... 188 neither the debtor nor the creditor possess the right ap- plication of payments .... 187 ASSIGNMENTS, Page 31. Account may be assigned by oral agreement 235-238 may be assigned the same as a chattel 219 Accounting for items for receipts and disbursements of assigned , property 215 Action brought by assignee in his own name, omitting to mention it was for benefit of others . . 213 Agreement signed by a majority of creditors of an insolvent on conditions 205 Assignee for the benefit of creditors is merely a representative of the debtor 231 for the benefit of creditors is liable for ordinary negligence, 214 of a mortgage, after condi- tion broken.being in possession, 198 of stock, in due form, and notice to company 195 " Assignee shall take possession of property, sell at public or pri- vate sale " 206 Assignment invests title to property in the assignee 207 under seal and duly record- ed, of wages, to secure corpo- ration 193 Although bond and mortgage is transferred by delivery, inten- tion so to do must exist . . . 217 PARAGRAPH. Authority to assign a mortgage, im- pliedly, includes the bonds . . 222 Authorizing assignee to " collect notes, accounts and choses in action" 203- the assignee " to compro- mise with the creditors ".. . 204 Averment that " the defendant is indebted to plaintiff, etc." . . 249 Bankrupt proceedings bars an ac- tion for the conversion of se- curities 221 Being free from fraud, will not be avoided, etc 209 By virtue of and under a foreign law 196 Cannot be inquired into by third parties 224 Certificate of assigned as security for the payment of any de- mands 239* Chattel mortgages covering more than assigned property was worth 215- Creditor failing to file his claims within three months 199 Creditors selling personal property, under execution, that had been assigned 205- Commission not allowed to assignee on mortgaged property . . . 216* Declarations of assignor of a chose in action, do not prejudice title of assignee 211 of vendor do not affect the title of his vendee 21 2~- Draft does not always converted in- to an assignment of the fund drawn against 228 upon a particular fund to accrue in future 229, 230 1 Duly placed in the office of recorder of deeds of proper county with- in due time 207 Empowering assignee to collect " choses in action, with right to compound, etc." 202" Every person is chargeable with no- tice of bankruptcy, legally con- ducted 210 Fraudulent preference given by a chattel mortgage 218- For the benefit of creditors rests title forthwith, though assignee is ignorant of the assignment .. 207" Giving preference is void under the Bankrupt Act 194 Insolvent debtor may assign all his property for the benefit of his creditors and make prefer- ences . . 20S 492 INDEX TO CASES. PARAGRAPH. May be made by oral agreement, without writing 235 Notice of action brought for the col- lective benefit of creditors . . 213 Not recorded within thirty days . . 205 Of a debt carries with it in equity an assignment of a judgment, 200 Of a note before maturity, indi- cates a want notice of any de- fence to it 226 Of a portion of a debt, orally, is valid 236 Of an attorney's receipt of a claim for collection 225 Of personal property after cause of action for conversion thereof has accrued 224 Of property made by a bankrupt to a creditor, who had reason- able cause to believe, etc. . . 223 Omission to include claims in an inventory at time of assign- ment 197 Order drawn for a valuable consid- eration upon a third person, etc 227 Order made payable out of a par- ticular fund 227, 228 Power of attorney authorizing the assignment of a mortgage . . 222 Property assigned cannot be reached on attachment 241 Reasonable cause to believe " as- signee insolvent " 223 Record of an assignment is construct- ive notice 233 Record of assignment of a mort- gage 233 Right to proceed without the ap- pointment of an administrator, 234 Surety in a bond, under tender of the debt 192 To be void unless signed by all creditors 205 Unauthorized use of property by assignee 215 Where an assignment will be de- clared void 204 creditor can successfully op- pose granting of discharge un- der bankruptcy 220 refusal to assign bond to surety is a discharge of the surety 192 When dates shall be taken as most advantage of the defendant . 191 ASSUMPSIT, Page 38. Cannot be brought for the value of goods held under a mortgage lien . 240 Lies only on ownership . . . Mortgaged goods taken to satisfy a claim PARAGRAPH. 240 240 ATTACHMENT, Page 38. Action' of a judgment creditor to stay proceedings 253 upon an undertaking to discharge an . . . . 270 Affidavit must show plaintiff" is en- titled to recover a sum stated therein" 249 upon application to vacate an attachment, etc 250 Against National Banks under state laws 264 Attaching creditor cannot defend an action, brought by an assignee of debtor ... 258 Averment, that " the defendant is indebted to plaintiff in sum stated" 249 Builder's lien, where real estate security for work done was given and surrendered for a note 265 Cannot be issued against non-resi- dent firm 242 Certification of check and its effect upon an attachment against fund in bank 252 Debt created by a word where debtor resides 246 that has been legally at- tached 251 Decree made by a surrogate may be enforced under attachment, 267 Defendant about to assign, dispose of, secrete their property, etc., 248-261 Inaction of debtor after attachment, 251 Insufficiency of affidavits issued . 244 Issued against a non resident firm, 242 Legal title necessary to establish lien 247 Levy by virtue of an attachment upon a promissory note . . . 247 Mere levy under execution upon of attached property 268 Money arising from assigned claims, 241 Order, on motion of attaching cred- itor against person holding property 245 to deliver property to sheriff 245 Person having a lien upon prop- erty attached acquired subse- quent to attachment .... 244 Property assigned and its form changed . 241 assigned cannot be reached on attachment . 241 INDEX TO CASES. 493 PARAGRAPH. Publication of a notice of attach- ment 254 Right to apply to vacate, or modify, 260 Rule prohibiting the splitting up a single demand, etc. .... 266 Seizure, by sheriff, of firm's prop- erty, under an attachment against one person . . . 255-257 Statute must be strictly followed, in, 242 Void sale of goods, for want of au- thority 259 Warrant reserved upon judgment creditor 269 When a sheriff becomes a tres- passer 257 - an attachment cannot be is- sued . ATTORNEY, Page 42. Acting in excess of his powers as attorney -^ under decision of Supreme Court Action for deposit claimed by two parties in directing the levy upon 246 271 284 285 271 or taking goods Agreeing to prosecute claim for half of it 274 Authority to collect interest does not authorize the collection of principal 280 to settle or adjust claims, etc. . 275 Cannot recover for professional with proof of statute qualifica- tions Converting goods on which he has a lien False warning to bank cashier . . " Fiduciary Capacity " relates to cases of technical trust . . . Forbidden to purchase interest in a thing in controversy adverse to his client Forfeiture of a lien claim, when once incurred Gratuitous bailee delivering securi- ties In fact cannot bind his principal as security Issue of bills of lading before re- ceipt of goods Purchase of claim which is in liti- gation Power to possess, sell, etc., real estate. to sell real property by hus- 273 296 292 305 287 290 295 276 294 282 279 283 band and wife Profound secrecy between client and attorney 278 PARAGRAPH. Purchasing of a client his claim . 272 " Received from H. N. P. one let- ter envelope sealed, said to con- tain #290 " 297 Retainer does not authorize attor- ney to settle or adjust claim . 275 Stipulation to pay certain fees . . 277 Tax deed made to attorney is void if the owner of the land was at the time his client 288" BAILEE, Page 44. Actual delivery by bailee on de- mand of true owner 293 Conversion of goods by bailee, on which he has bestowed labor, 29& Finder of a bank note, as against a bailee 291 Forfeiture of a lien claim, when once incurred 290 1 Gratuitous bailee of money for lending 295 Issue of bills of lading before re- ceipt of goods 294 Neglect to place mortgage on rec- ord 295 Receipt in following words, " Re- ceived from H. N. P. one let- ter envelope, sealed, and said to contain $290 Voluntary bailee without reward . relinquishment of posses- 297 292 289 290- sion by the bailee Waiving of his claim by bailee . . BANKRUPTCY, Page 45. Absolute powers are given .... 82 Accounts may be assigned .... 219 Action against trustees of savings bank for negligence 298 Active or express fraud, as distin- guished from an implied or constructive fraud 305 After assignment, balance in bank was withdrawn from assets . . 197 Against national banks 264 Assignee is merely representative of the debtor 231 Assignee's action for the conversion of a chose of action .... 258, 259 Assignment of wages, under seal . 193 Availing oneself of the exception in bankrupt 302 " Debtor about to dispose of prop- erty" 261 Delivery of goods on demand of the owner 293 Discharge under insolvent laws of other states 301 Failure of creditor to present his claim . , 300 494 INDEX TO CASES. PARAGRAPH. Fiduciary capacity " in the provis- ions of the Bankrupt Act " . 300 Giving preferences void under cer- tain circumstances .... 194 Guilty of fraud when contract was fair and honest 299 Intention to deliver bond and mort- gage 217 May sue upon the debt or upon notes given therefor 304 Prevent a debt from being dis- charged in bankruptcy . . . 299 Unliquidated damages occasioned by a tort 298 When a debt is barred by a compo- sition 302, 303 BANKS, Page 46. Absence of another claimant . . 499 Accounts at the mother and at the branch, one of which is over- drawn ....... 331, 332 Action against a bank cannot be maintained without a previous demand by check or otherwise, 338 Acts beyond its powers does not prevent the right of action to recover 313 After note falls due 322 Against a national bank in another state 264 All acts not specially delegated are illegal 307 Allowing a depositor knowingly to misappropriate funds held as a trustee 495-497 Altered check relieves the payee of the duty to know the signa- ture 476 Although the genuineness of signa- ture is settled by drawer, yet it is a forgery 485 Bank assignments and their dates, 191 borrowing money to carry on legitimate business . . . 308 discharges its duties as col- lector 123 Banks acting as bailee without re- ward 292 Banker can be discharged in bank- ruptcy 431 cannot be arrested ordinar- ily 430 Being an artificial body, can only act through its directors and agents 452 Bonds taken from its officers . . 375 Borrowing is an inherent power be- longing to banks 308 money for speculating ille- gal 308 PARAGRAPH. Bound to have regard to the amount written in letters on the check, 486 Builder's lien changed .... 265 Buy notes only for their fair market value 315 By-laws forbidding transfer of stock while owner is indebted to the bank 327 By virtue of or under a foreign law, 196 Can charge commission for collec- tions or exchange for selling drafts 316 make a loan to a director conditionally 447 only borrow money to ena- ble it to carry on its legitimate business 308 president charge the bank with a greater liability ? . 360-364 ratify all irregular acts . . 370 recall certified check, if it was done through mistake . 401 repudiate a transfer of its funds by its correspondent . . 357 repudiate its own bills if stolen and put in circulation . 350 sell and convey real estate legally acquired 310 Cannot avoid its certification even where the signature is forged, 494 be held responsible for spe- cial deposits (as box of valua- bles) 668 be proceeded against in bankruptcy 669 buy notes at a usurious in- terest 315 carry on any other than a banking business 307 deal in real estate for pur- poses of speculating or invest- ment 310 refuse to check of a party who has simply committed an act of bankruptcy. .... say which it will pay where 464 all the checks exceed the bal- ance on deposit 459 Case of the death of depositor . . 321 Cashier is bound to know signa- tures 371 paying forged check . . . 371 should carry on and open all the correspondence of the bank 640, 641 Cashier's statement that a signature is genuine 371, 372 Certain rights become inherent to them 307 Certificates of stock are not negotia- ble like promissory notes . . 341 INDEX TO CASKS. 495 PARAGRAPH. Certification does not relieve de- posit from an attachment lien, 252 Certifying a check creates a new obligation on the part of the bank 492, 493 a check, indicates a general scrutinization of a check . . 484 Certifying checks outside the bank, 369 Check assigns so much of deposit only after acceptance of the bank 422, 423 . . certified and retained seven years. In the meantime the deposit was withdrawn . . . 397 certified outstanding does not relieve the deposit from attachment certified while in hands of drawer dishonored is taken by a party drawn on a merchant is a bill of exchange filled up or altered after 252 252 395 384 479 signing, loss falls on drawer held an unreasonable time, 547-549 held by an innocent party, the payment thereof may not be stopped 402 holder has no right of ac- tion against a bank before cer- tification or acceptance . . 424, 425 is an order upon a bailee of funds 382 is dishonored when payment is refused for any cause . . . 395 must be drawn payable to some one or bearer not properly signed . . . one year old puts the bank on an inquiry owner agrees to accept bal- ance on deposit and give check to bank therefor payable several days after it is drawn payable some days after it is drawn should be presented the clay payable taken ten days after it was drawn Checks are not always a contract . are payable at any time af- 3RO 398 396 461 381 384 395 237 ter their dates, not before . 508, 509 drawn on another local bank 129 must be paid until deposit is exhausted although over checks are out 456 paid which were drawn by PARAGRAPH. directors who were never elected 399 Check payable, not designating any day, should be presented and protested when due . . . 384 payable on demand, not en- titled to grace ' 385 presented in a suspicious manner or a questionable shape 390 Clerk altered check after it had been signed not authorized to receive de- 475 362 posits Collecting" bank's right to place the proceeds of the collection . 408, 409 Collection rules established by the Supreme Court of the United States 527-534 sales in New York and Ohio, 526 Collections intrusted to an unworthy attorney must be made according to 513 the laws and customs of the place at which is payable. . . 516 sent by private messenger, 518 should be paid to the bank 505 or party from whom it received it '. Common law obliges banks to pay checks only when made pay- able " to bearer " 487 Consignee holds property as bailee for the bank holding bill of lading 418 Convenience of banks to a business community 334 Corporate funds must be used to increase its assets legiti- mately 450, 451 Credit for a collection which has not been paid as supposed . . 414 Customer has accounts at mother bank, and one of its branches, 331 Death of depositor, having balance in bank which has a judgment against him 329 Debt created by fraud is not barred by a composition and discharge, 303 Debtor of a bank has a right to set off its bills against any debt due from him to the bank . 536-539 Deposit made by an insolvent firm as agents, claimed by the bank to pay a debt 1746 made carelessly misleading as to owner 358 , not money, but a com- modity does not convey owner- ship to depository 1623 of corporate funds made to 496 INDEX TO CASES. PARAGRAPH. lead the bank to consider them individual funds 504 Depositor has a right to examine the books of the bank as to the condition of his accounts . . . 427 has a right to sue the bank when it pays his checks in counterfeits 428 . has the right to revoke pay- ment of any check or checks drawn by him even after pre- sented 400 ^ ^ member of a firm having an account with the bank . . 325 . orders the bank to pay a certain, and not a part. . . 387-389 Deposits made by a party in an of- ficial capacity 502-504 received outside the bank, 368 Director, a member of a firm is in- terested in a loan 448 having duty to perform as regard to his knowledge of facts must not act prejudicial to the bank renders service by request outside of his duties should not vote on questions 455 446 356 446 affecting him personally . Directors allowing an officer to manage the whole business, the bank is held responsible, 441, 442 alone authorized to borrow money 309 cannot delegate the right to make discounts 314 duties as to suspects . . . 376 may be held liable individu- ally for a special deposit. . . 588 of banks must be more diligent than those of other corporations 434, 435 may select a discount com- mittee not entitled to compensa- tion. not allowed to say they had 445 355 no knowledge of the derelic- tions of its officers 437 Discounts only made by directors, 314 Does not set itself up as an expert, 371 Evidence of surrounding circum- stances 229 Entrusting power to officials of a bank 436 Facts which may enhance sureties risk 377 Failure to charge certified check . 397 False or fraudulent representations, 352 PARAGRAPH, False statements intended to de- ceive plaintiff 354 Funds of depositor not enough to pay check in full 386 Forged check of another depositor of the same bank is credited to another depositor 337 Garnished should not pay out the fund until discharged or guaranteed 500 Grace on checks payable several days after it is drawn .... 381 General custom now binds banks to pay checks payable to order . 487 Handwriting of the body of the check may be different from the signature 478 Has a mortgage on real estate to secure general balance due from deceased depositor . . . 330 1 a right to repudiate the act of its officer when the act is an illegal one 344 a lien upon and a right to hold as security all moneys and funds in its hands . . . 317 318 no right to make itself re- sponsible when it pays or cer- tifies a check before it is pay- able 405 no right to take usury in anyway 316> Holds a note made by a depositor made payable by it 655 How long a bill or check, payable on demand or at a given time may be kept in circulation . 547-549 Ignorance of the true owner of a collection 412 Identification of holder of a check and genuineness of signature of indorser 489-491 Important feature of the business of A 511 Indorser of a check is subjected to a different rule from where it is sought to hold the drawer, 541-549" Illegal ownership of real estate is void 311 Is agent only of the depository of paper for collection .... 516 always held to the strictest diligence 473, 474 not bound to institute suit upon any paper indorsed to it for collection 512 not like a common carrier . 366 protected in the payment of a check signed in blank when filled up -. 477 INDEX TO CASES. 497 Is responsible for false merits of its officials . PARAGRAPH. state- . . 353 It is not bound to accept deposits from every one offering them . 365 Knowledge coming to a director, while in discharge of his duties. obtained by a director not 453 454 in his official capacity Learning of the death of the drawer must refuse payment of the check 465, 466 Liabilities of banks for the acts of its officers when performed within the line of duties . . 348 Lien on stock secured by State statute 328 on its stock stands good against a member of a firm that owes the bank .... 326 Malfeasance of an officer. . . . 351 May compromise of a bad debt . . 347 devolve, special duties upon one or more of its officers . . 345 hold a cash dividend pledged to it for a debt of a stockhold- er to the bank 1640 instruct cashier or presi- dent to make a certain discount limited as to time, etc. . . . 444 make itself liable by select- ing an improper notary . . 520 -^ open an account with a married woman and pay her checks 415,416 . pay out deposits on verbal orders 433 ^^ ratify any act done with its officers or agents 363 recover money from the ven- dor paid him for the land . 311 repudiate any loan made to it, or its directors for any im- proper purpose 346 set-off to any one of several demands 320 take real estate for debts overdue 310 Meaning of term in the I loth sec- tion of Revenue Act of July I3th, 1866 309 Money advanced on a collection to the transmitting bank . . . advanced on strength of a bill of lading attached to the discounted paper . . . . Moneys borrowed by N. B. is not considered capital on which taxes are levied .... 670, 671 Mortgage to N. B. on real estate to 32 411 417 PARAGRAPH. secure present or future loans are void . . 667 Most Important business of banks is that of making discounts . 443 Must not undertake to distribute funds pro rata . . . . 457 use due diligence in col- lections whether compensat- ed or not therefore . . . 514, 515 Name of each officer usually desig- nates the peculiar duties he has to perform 359 Negligence in obtaining informa- tion of bankruptcy, assignment or death 467-471 No lien on boxes or contents left with it for convenience of de- positor 323 Non-payment of a collection protest should be made known to the owner of the paper .... 404 Notary, acting under salary, is an agent of the bank employing him 520 Notes discounted in excess of the law 419 owned by bona Jide holder losing them by fire which he can fully describe .... 540 Offer to accept for check the balance due the depositor .... 392 Order drawn by a customer on his bank 383 Overdraft by an agent, of his prin- cipal's account with knowledge of cashier 373 Paper owned by a bank, not made payable thereto 407 Paying check before its date assumes all risks 509 a part of a debt and indors- ing the amount thereon loses its voucher 391 Payment of a check, dated ahead, should be refused until the date thereof 402 of raised check, as be- tween the bank making the payment and the bank de- manding its payment . . . 479-483 Pays a check of deceased drawer before it has received due no- tice thereof 466 Permitting a cashier to make a loan and do not examine his acts 447 Powers are confined to those ex- pressly given to them . . . 306 Power to make loans granted to two directors of the bank . . 309 498 INDEX TO CASES. PARAGRAPH. Power to buy and sell real estate, must be construed to be the right to buy, etc 312 . to execute paper delegated to two persons one of them has no right to execute paper . . 309 President of bank not authorized to certify his own check . . . 374 Prohibited against national banks 262 Property of the bank cannot be used except on the legitimate business of banking . . . 449 Protest of a paper should be made known to all parties indorsing the paper 405 Questionable whether bank should pay check in part or so far as balance may go 387 Question as to directors responsi- bility 354 Receiving a collection advances money thereon to the remitting bank 412,413 . a deposit must pay all le- gal demands thereon promptly, 386 Refusal of bank to pay a check, having ample funds of the drawer 480-482 Relation existing ordinarily be- tween a bank and its de- positor 335 Refusal to pay proper checks makes bank liable for all damages . 389 Responsibility of banks for special deposits when stolen . . . 1621 Retained check twenty-four hours, 394 Rights or powers of national banks, 662-666 Right to refuse transfer of its stock where it has any claim thereon 326 to refuse payment of check when the same is ambiguously drawn or worded .... 379 Securities given to secure a debt and left after the debt was paid 324 Should pay notes of its depositors made payable at the bank . . 334 Simple account being credited therein with the proceeds of notes discounted, etc. . . . 339 State only can complain .... 313 Stockholder's rights must be protect- ed by the directors .... 419 Stranger leaves money with clerk to pay his note when pre- sented 367 Sum to be paid must be explicitly set forth on check .... 380 Time a bank may hold a check be- PARACRAPK fore it will be considered as having accepted it 393 Title and ownership of stock certi- ficates offered as collateral should be ascertained . . . 340 Trustees of Savings bank charged with negligence . . . . 298 Security for payment of any de- mands 239 Unauthorized paper only good in the hands of innocent holders for value 309 Usage of trade for banks to take pledges from factors, as se- curity 1741 or special contract changes rules 405 -^ will not always prevail, 409, 410 Usages often regulate the responsi- bilities of parties acting to- gether 406 When a bank is made a debtor . 336 an act gives power to a body of men to engage in banking 307 creatures of statutory law, 306 sureties are bound for acts committed previous to giving bond 378 sureties of officers may be relieved 376 BILLS OF EXCHANGE, Page 127. Acceptance of draft dated in one state and drawn by resident of such state or resident of an- other 965-967 " Accepted. Payable after my ad- vances are paid " . . . . 905 at the request of a third party who agrees to share any loss . . - 957 Acceptor who tears bill in two parts to destroy it 958 Action on draft drawn in N. Y. for goods sold and delivered there, and accepted in Montreal . . 939 Authority of agent to receive pay- ment by accepting a bill drawn in blank : . 920 Bank placed in liquidation after delivery of draft 927 Bill drawn in one state upon a party in another 922 drawn for the accommoda-' tion of another 909 Bills, drawn and accepted by same parties 907 drawn by officers of govern- ment 923 INDEX TO CASES. 499 PARAGRAPH. Bill made payable to and indorsed by A. B. " Agent " . . . . 913 Damages on bill expressing value received and drawn without the state . .' 940 Defence, want of consideration 918, 919 Destroyed by the one who was ex- pected and asked to accept it, 960 Draft drawn for price of goods sold and delivered is equivalent to demand of payment . . . 964 Drawer of a check undertakes that the drawee will be found at a certain place 924-927 Drawn and indorsed in England payable abroad 955 by agents upon the com- pany they represent, on their own bill heads 944 by party in Chicago upon firm in St. Louis, verbably ac- cepted by member of firm . . 943 i for sole accommodation of payees and accepted by drawee 945 in favor of payee on a cer- tain fund 953 to enable acceptor to raise money to pay his debt due drawer 954 Evidence that the holder of a bill had notice 917 Extension of time given on bill . . 957 Failure to stamp foreign bill and a delay of a year 947 General indorsement of bills evi- dence of property in indorsee, 904 Habit of paying drafts does not compel him to pay similar ones 951 Indorser of a note, even though it be an accommodation note . 968 of bill entitled to notice . . 942 who had been condemned with the maker 910 Insisting upon legal rights . . . 912 Intention to assign a fund in the hands of another 906 Looking up a bill of exchange two years 938 Mere retention, without demand for a return, dissent to reten- tion of a bill 961-963 Must be payable at all events . . 948 Name of acceptor written across the stamp 9J6 National bond taxed at an amount above their par value .... 969 Notification of the purpose for which new draft was au- thorized 931 PARAGRAPH. Payee of a bill of exchange failed an hour before payment was made 903 Paying bill before maturity cannot change relations of original parties 949 Payment by buyer's acceptance of seller's draft 921 Pay plaintiff on account " as per contract " 959 Party authorized by another to draw different drafts on him . 937 Possession of a draft presumptive evidence of ownership . . . 950 Prior equities of antecedent parties to paper 936 Promise to accept a future bill, in consideration of money ad- vanced thereon by payee . . 956 Right to " reexchange in absence of express agreement "... 908 Vessel chartered for a sum named, 911 Warranty on part of vendor, a bill, valid in the hands of an in- dorsee 933-935 When bill is either bill or a note . 941 When drawers and acceptor, as be- tween themselves 946 When no value or consideration for acceptance exists ... 952 Words " I take notice of the above " 914 BILLS OF LADING, Page 137. Action for the conversion of goods, 982 Advances made on bill of lading be- fore goods are on board . . . 975 Are not negotiable in the same sense in which bills of ex- , change or notes are .... 975 -transferable by indorsement, 977 Bill delivered to shipper of goods, 978 Bills always attending the draft . . 981 of lading having printed rules thereon 971 of lading in which there is a clause acknowledging the re- ceipt of property 970 of lading bind carriers to for- ward goods with despatch . . 971 Carriers must forward goods to destination 971 Clause in bill of lading acknowl- edging receipt of property . . 970 Commission is earned when prin- cipal accepts the person pre- sented to him 1040 Delivered to the shipper of the goods is the bill that makes the contract 978, 979 Discounted and delivered to the 500 INDEX TO CASES. PARAGRAPH. party discounting the bill con- veys to him property also . . 980 Does not always invest title to goods 982 Draft discounted by consignor upon his consignee 979, 980 Evidence in support of ownership of 973 Forged bills of lading attached to drafts 981 . discounted by a bank and paid by the consignee, who was ignorant of the forgery . 981 For goods not actually put on board 975 . goods sent to a purchaser, and not objected to by him . 974 Indorsee of a bill of lading may libel a vessel for non-delivery of goods 984 of a bill of lading may libel a vessel 984-986 In effect vest the ownership of goods consigned to consignee, May be explained by parol evi- dence in so far as it is a re- ceipt Principal is not bound to accept the person presented to him as buyer Railways are not liable for ad- vances made by commission merchant on fraudulent bills of lading When transferred does not always vest authority to sell goods de- scribed Where one of two innocent parties suffer from wrongful acts of third party parol evidence is admissible 983 987 1040 975 982 976 973 to prove an acceptance Which is silent as to the place of storage 985, 986 BILLS OF SALE, Page 140. Absolute bill of sale, executed to secure a debt 988 Executed to secure a debt, will be postponed to a subsequent re- corded mortgage 988 Intended to secure a debt operates as a mortgage 988 Recorded mortgage supersedes a bill of sale, given to secure a debt 988 Sale of personal property, pos- session of which was delivered next day 989 Vendor continued in possession un- til goods were attached . . . 989 PARAGRAPH, When bills of sale are conclusive evidence of fraud 989* With an immediate delivery of pos- session with continued change of possession 989* BONA FIDE HOLDER, Page 140. Antecedent debt effects do not ap- ply to instruments conveying real estate 1003- debt is not such a con- sideration as will cut off equity of third parties 1001 Assignee of mortgage purchased in good faith for value . . . 998, 999* Bonn fide holder for value of ne- gotiable paper held as security, 1003- holders of bonds cannot be allowed 991 Contract to sell for cash on de- livery 990* Indorsee of a note taking it as col- lateral security for an "ante- cedent debt 995- Issue of bonds must be made by virtue of special authority . . 991 Judgment purchased for less than its face 997 Mortgagor estopped from pleading usury 988- No bona fide holder of bonds, with- in the meaning of law as to notes 991 Possession of money vests the title in the holder 1000 1 "Purchase of a judgment for less than its face 997 Precedent of payment was not waived by the symbolical de- livery 990 1 Purchasers of town bonds must see to it that their issue is legal . 992 Real estate conveyances as security are subject to equities between prior parties 1003 Regular on its face signed on con- dition that others sign it, but do not 1037" Satisfaction-piece of a mortgage is a conveyance under the Re- cording Act 996 Sells a quantity of corn to be paid for on delivery 990 When no title to property passes . 990" Where the right of stoppage in transitu is defeated .... 994 BONDS, Page 142. Acceptance of an instrument, in form of a bond, containing no seal . 1019* INDEX TO CASES. 501 PARAGRAPH. Accepted for the future good con- duct of an agent already in his employ 1024 Alteration of the number of a stolen bond does not impair the rights of the true owner . . . 1021 Being executed, complete and per- fect though not signed by all the sureties 1038 Bond for the future good conduct of an agent, already in his em- ploy .... 1024 of indemnity given to an accommodation indorser . . . 1025 -^ required of a collector of taxes 1019 stolen and number altered, in hands of bonafide holder . 1009 Bonds with coupons, payable to bearer 1028 City bond stolen and number changed by the thief .... 1004 Dealer in municipal bonds, which refers to the statute, must take notice of all its requirements . 1010 Debt secured by three securities, the principal being held for whole sum 1005 Depositor entitled to the set-off of the amount of his deposit in an insolvent bank 1011 Designation of a bank as the place of payment of a bond . . 1030, 1031 Exchange of State bonds with cer- tain railway companies under legislative action 1012 Executed by an attorney in fact signing the obligor's right sur- name and wrong baptismal name 1029 Fraudulent change of owner's name in stolen U. S. bonds . . . 1014 -^-^ suppression, by the person who solicited surety to sign . . 1035 Generally the term " bond " implies an instrument under seal . . 1019 Given to another to secure the faith- ful performance of a third per- son's contract 1015 -Guarantee expressly referring to a previous agreement 1016 Guaranty for the faithful perform- ance of certain duties de- faulted 1018 signed by guarantor and de- livered to agent 1017 was signed and delivered to the agent of the guarantee . . 1017 Jn which each surety is severally bound for only a specified part of obligation 1039 PARAGRAPH. Irregularity, or fraud, or miscon- duct on part of agents of mu- nicipal corporation .... 3008 Liability of surety cannot be ex- tended by implication beyond terms of contract 1006 Married woman cannot bind her- self as security on an official bond . 1020 Money bond, issued by a body poli- tic, under authority of law . . 1021 Municipal bond in the ordinary form is a promissory note ne- gotiable 1038 bonds issued without au- thority, although negotiable in form, are void 1027 corporation cannot 1007 1005 1025 1004 1022 1006 bonds without legislative au- thority Obligation that is several .... Of indemnity given to an accommo- dation indorsor conditioned upon payment of certain notes, Negotiable city bond stolen, and number changed by thief . . Payable to bearer, has the negoti- able quality of ordinary com- mercial paper 1021 Power to issue county bonds carries with it a power to make them payable out of State .... President responsibility that does not relieve his subordinates from responsibility .... Proof that the bond was delivered upon the consideration that others sign it 1036 Purchaser of coupons which refer to the bonds to which they are attached 1010 Reasonable notice to the guarantor of any defalcation on the part of the contractor 1015 Representations made at the time of execution of a bond effect on a bond 1034 Seal affixed to the signature of the maker of the paper .... 1023 Stolen reaches in the hands of an innocent holder for value be- fore maturity 1004 Sufficient notice of the precarious condition of the bank . . . 1035 Sureties upon an official bond are not liable for defalcation of previous term 1032 Total want of authority to issue municipal bonds prevents bona /^holding 1009 Treated as an asset of the bank 502 INDEX TO CASES. PARAGRAPH. three years before its insolv- ency 1035 There can be no innocent holder of paper issued by municipal cor- poration without power . . . 1026 Under seal, though voluntary, cre- ates a debt, impeachable only for fraud 1013 When a bond for good conduct of an agent requires his miscon- duct made known .... 1024 . a guaranty purports upon its face a sufficient consideration, 1016 .. Legislature has no authority to create certain business rela- tions 1012 securities are liable for money due on account of previous term 1033 Where secretary is not relieved from his responsibility as receiver of money 1006 With coupons, payable to bearer, are negotiable and pass by de- livery 1028 Words " witness our hands and seals," where no seal is at- tached 1019 BROKERS, Page 147. Commissions due qn acceptance of contract 1040 Employer is not bound to accept purchasers presented . . . 1040 Is bound to act in good faith . . 1040 Undertakes to furnish a purchaser, 1040 BURDEN OF PROOF, Page 147. Innocent purchaser of property . . 1041 Proof of purchaser participating in the fraud 1041 Property transferred to hinder, de- lay and defraud creditors . . 1041 Title of property is assailed as void, 1041 CERTIFICATES, Page 148. Adjournment of difference in regard to securities held by a deposit and credit bank ..... 1049 Allowing interest until maturity . 1044 Clear and satisfactory evidence only can overcome a certificate of deposit 1043 Evidence of high and satisfactory character 1043 Omission of requisite acts required by statute to perfect a corpora- tion 1045 Of deposit, payable at their return to the bank, properly indorsed, 1046 Of deposit, payable on demand with- PARAGRAPH, out interest, and a certified check are the same thing . . 104T Rate of interest stated in certificate of deposit continues until it is paid 1044 Religious corporation where the cer- tificate was defective .... 1045- Set-off, either legal or equitable, at the time of a transfer of a note, 1049* State having required certain acts to be done to constitute a cor- poration 1045 Statute of limitations begin to run . 1048- When a certificate of deposit be- comes a note .... 1042, 1047 statute of limitations begin to run against certificates of de- posit payable on demand, 1046, 1043- CHARGES ON BOOK, Page 149. Agent and corporation receiving goods and gave seller credit for them 1050* Goods sold, charged to A., on credit of a corporation 105X> CHATTEL MORTGAGES, Page 149. After acquired property attaching it- self to, etc 1085- An immaterial variation between a chattel mortgage and the copy subsequently filed .... 1086- Appropriations of payments by either debtor or creditor . . 1071 As between the parties, is valid, without any acknowledgment, 1073- Authority to sell the stock mort- gaged given to the mortgagor, 1088 Chattel mortgage permitting mort- gagor to remain in possession, and to sell, etc 1052 Continued possession of chattels by the mortgagor 1081 Codefendants, not related to the cause of action set up in com- plaint 1075- Contained the words " to hold as collateral for 1,000 P. T. oil pipage paid," etc 1092" Constructive possession will not avail 1078- Debtor receiving chattels in pay- ment of his debt secured by mortgage thereon 1052- Defect of a description of goods held under a 1080 Does not protect from execution material purchased by the exe- cution debtor before it was given 107 INDEX TO CASES. 503 PARAGRAPH. Effect of a public sale, upon due notice under achattel mortgage, Empowers the seizer and sale of the prope/ty under ordinary pro- cess of law Expressed to be " subject to prior mortgages " and recorded be- fore the others Failing to describe the property is cured by a subsequent delivery of property to mortgagee . . Falsely describing property in a mortgage will not affect third party buying it Given as continuing security to cover present and future in- debtedness . to secure several notes held by different parties .... with a tacit or expressed understanding that mortgagee may sell the property . . . Goods in possession of mortgagee is exempt from seizer under writ of attachment in insolv- ency Husband and wife gave a note and secured by a mortgage on her furniture Insufficient description of chattels mortgaged In which the affidavit required by general statutes is omitted . . Is in law a conveyance of the goods and chattels mortgaged . . . Made to secure debts maturing at a future day, conveying a stock of goods May be fraudulent as against credi- tors although founded on a valuable consideration . . . Mistake in the number of the lot where chattels were, is imma- terial usually Mortgagee agreed to sign his inter- est for the notes of a third party, etc i of chattels upon public sale makes reasonable and fa i r efforts to sell temporarily uses chattels with assent of mortgagor . . -, under a chattel mortgage, may himself become a pur- chaser Must so describe the property as to enable third persons to identify the property Object of a sale, upon due notice under mortgage Of a certain described horse, and 1075 1033 1056 1078 1063 1053 1062 1064 1084 1082 1080 1061 1083 1055 1054 1086 1087 1075 1070 1075 1063 1075 PARAGRAPH, all other live stock mortgagor may afterwards acquire . . . 1089 Of personal property to be subse- quently acquired . . . 1059, 1060> One not having a judgment and execution is not a creditor within the meaning of the statutes 1067, 1068T Owner of chattel mortgage taking possession of chattels before other creditor obtained judg- ment . 1085 Possession by the mortgagee, taken before judgment of other credi- tors has been obtained . . . 1085 Preexisting debts is a valuable con- sideration for a chattel mort- gage 1066 Sale of mortgaged property without notice to buyer, but with the verbal consent of mortgagees . 1074 under foreclosure is expressly consented by giving the mort- gage 1051 Term " forced sale as used in the constitution is a sale against the will of the owner " . . . 1051 Upon after acquired goods will hold against a bona fide purchaser with notice 107T Validity does not depend upon its being in writing 1057 Warehouse receipts delivered as security 1069, 107O When a mortgagee cannot maintain an action of claim from a third person 1065? a transaction is not usurious, 1076> Where, as against creditors, a vendor's sale of furniture becomes void 1079) a junior, as to point of time, is not displaced by senior mort- gages CHECKS, Page 155. Credit by a drawer of a check to the bank which has not been pre- sented Action against a partnership on a dishonored check against drawer of a check is presumption of its validity . . against a fund in a bank does not assign that fund until presentation of payment . . Alteration of a check invalidates it, An equitable assignment of a fund by check Are not entitled to days of grace . 1085 1103 1131 1155 1096 1124 1096 1149> 504 INDEX TO CASES. PARAGRAPH. Are not money to be accepted by a , board of commissioners . . . 1110 Bank cannot retain money against the checkholder for a debt not yet matured 1134 By certifying a check, bank under- takes only that the signature is genuine, etc 1145 Bank certifying a check is primarily liable for its payment .... 1144 directs checks drawn upon it to be presented for payment to another bank 1111 . is bound, before payment, to ascertain the genuineness of the indorsement ..... 1127 -^ is liable on a check certified by it whether the drawer had funds to meet it 1146 is not liable to pay check drawn thereon, by a depositor, except by its acceptance in writing 1165 . officer's verbal response that the check is " good " or " all right" . . . 1125 -^-^ or agent for collection of a certified check, should not send it to certifying bank for pay- ment Being a bill of exchange its ac- ceptance must be in writing to bind the acceptor 1139 Bill is payment only if it be so agreed, which must be evi- denced by writing 1115 Cashier certified a conditional check as follows : " Good when prop- erly indorsed" 1092 Date of a check is prima facie evi- dence of the time it was made, 1118 Death of drawer of check re- scinds authority of bank to pay . . . 1150,1151 Delivered on the day it was offered to another 1119 to payee as a gift, which was neither paid nor accepted, the gift was incomplete . . . Demand for the payment of a check, Depositor owes no duty to a bank requiring him to examine his bank book or checks .... Difference between checks and bills of exchange 1148 Diligence to be used in demand payment of in presenting for payment 1144 1093 1116 1128 1108 checks is subject to the rules governing bills of exchange . Dishonored any defence thereto 1108 PARAGRAPH. against the payee will be avail- able against transferee .... 1143 Dishonored, need not be protested to bind the maker ....... 1129 where presentment for pay- ment has been delayed does not discharge the drawer .... 1143 Drawer of a check, having no funds at the time in the bank, the check is due immedi- ately 1222, 1223 of a check made payable to order of payee, is not respon- sible for forged indorsement . 1127 Drawn in the ordinary form not describing any particular fund, 1113 on a bank was stolen and came into the hands of a bona fide holder 1164 upon a bank which has been enjoined from making any payments . . * 1112 upon defendant's bank and paid by it before it was noti- fied not to pay it 1153 Endorsed by holder, unauthorized by the payee mentioned in the check 1105 Excuse for delaying demand for its payment 1116 Garnishee order was made attach- ing a debt due from a bank to judgment debtor 1090 Genuineness of a check is not de- clared by a bank officer saying it is " all right " . . . . 1125 Given by a debtor to a creditor is generally presumed to be a con- ditional payment 1137 Given by a debtor with the inten- tion of appropriating it to the debt of the plaintiffs . . . 1094 in payment of a debt, is dishonored, action need not be brought for such debt .... 1135 in payment of preexisting debt which has been fraudu- lently passed 1114 in settlement of a balance due which was dishonored . . 1159 to carry out an agreement made in contravention of the laws 1109 to creditor to pay his claim is lost or stolen, and paid on a forged indorsement . . . . 1141 Has no inception until delivery . . 1119 Held by assignee of H., who died prior to an action on the check, 1158 for six years, without demand INDEX TO CASES. 505 PARAGRAPH. of payment is barred by the statute 1223 Holder of a check drawn in his favor, acquires no right of ac- tion in equity, as upon an equi- table assignment 1136 Is a payment until presented and refused 1115 delivered by the drawer to the payee long after its date, 1119, 1120 not an equitable assignment of a drawer's balance at his banker's 1161 only pritna facie evidence of money lent, paid and ad- vanced 1133 sent to the bank on which it is drawn by party to whom it is given for information . . 1126 Loss, caused by delay of presenta- tion for payment, is matter of defence 1143 Made payable to the order of a par- ticular person must be duly in- dorsed for payment .... 1098 Maker of a check cannot object to any delay in presenting it . . 1097 May be offered in evidence under the money counts 1133 Mere delay in giving notice to maker of the dishonor of his check 1132 Money paid on a "raised" check by mistake 1123 On a banker is a 'negotiable instru- ment and indorser is liable to holder 1130 another bank is credited in the pass book of the depositor comes back unpaid .... 1095 Order or draft to have the effect of an equitable assignment . 1121,1122 Or. note given, without coercion of force, to compound a crime, held by a bona fide holder . . 1138 other negotiable security is given on account of a preexist- ing debt 1163 Paid by a bank having a forged signature 1099 Partner consents that firm's check be applied on an individual debt of his partner .... 1091 Party taking a check is put upon inquiry and subject to any defence 1118 Payable to order may be transferred by the payee by parol, with delivery without indorsement, 1142 Payee of a check before it is ac- PARAOBAPH. cepted by the drawee cannot maintain an action on the latter ..:.... 1102-1104 Payee of check cannot maintain action against drawer without acceptance 1147 Payment of a check drawn against a garnished claim being stopped 1090 Person trusted with a check by payee, to pay into bank, ab- sconds 1124 Protest of a check is not required to make the drawer liable to payee 1117 of a dishonored check is not a written instrument on which to base an action . . 1106, 1107 Receipt for check given as a pay- ment contains material ele- ments of a contract .... 1157 Rights of check holder, after death of drawer 1151 of check holder and of the bank are fixed when check is presented for payment . . . 1134 Seller of a note, for valuable con- sideration, acting for himself, promises orally the note is good and will be paid 1156 Signed by defendant, under fraud- ulent circumstances .... 1162 Transferred by parol with manual delivery without indorsement, 1152 Verbal agreement between the payee and the drawer of a check 1116 promise by a bank to pay a check does not create a cause of action 1140 When delay to demand payment on a check discredits it .... 1118 action is maintainable against bank by drawer of check that has been lost or indorsement forged .... 1154 Where upon the face of a check it is apparent that it was not drawn , in usual course of business . 1100 COLLATERAL, Page 165. Creditor who holds railway bonds as collateral security for a debt refuses to deliver them . . . 1166 Suing and recovering execution, does not impair the right to re- tain collateral ...... 1166 COLLECTIONS, Page 166. Attorney employed to collect a debt 1169, 1170 506 INDEX TO CASES. PARAGRAPH. Draft indorsed over for collection . 1167 Checks must be presented for pay- ment or certification promptly, 1178-1181 Check received in payment of a claim presented by collector . 1178 Collector marked note as paid and sent draft for the proceeds to owner of note 1182 Misstatement as to the acceptance of a draft 1171 Money only should be received by an attorney in payment of a claim 1169 Payment of a draft stopped and its return requested 1182 Protest of a note after it had been marked " paid " 1182 Receipt containing "avails are to be promptly paid over on receipt by us " 1168 Signing a note at the request of third party 1177 Subagents liability for money col- lected 1168 When an attorney becomes an at- torney for both creditor and debtor 1170 COMITY, Page 168. Interpretation of commerical con- tracts 1183 Law merchant of the United States, 1183 Supreme Court of the United States construction of the law mer- chant 1183 COMMON CARRIERS, Page 169. Agreement to deliver goods beyond the terminus of carrier's road . 1184 Carrier who expressly contracts to deliver goods 1184 Consignee refusing to take goods . 1187 Discharge of goods upon the wharf with notice thereof .... 1188 Duty by water is not fulfilled by simple transportation from port to port 1185 Goods must be delivered, or at least landed 1185 Insurers accepting damaged goods at intermediate port .... 1190 take possession of damaged goods 1189 Liability of carrier for injury to goods 1187-1189 Notice by carrier of arrival of goods, 1186 Reasonable opportunity given for inspection . 1185 Relying on circumstances, they must be proven 1186 PARAGRAPH. What constitutes a delivery of goods. - 1168 Where a carrier cannot be held bound to deliver goods at end of voyage in order . . . . 1189 COMMUNITY OF PROPERTY, Page 169. After dissolution of the community, 1192 Husband only selling his undivided interest in property .... 1192 In name of wife and husband . . 1 1 91 Property purchase during marriage, whether in name of husband or wife 1191 When husband has no power to sell 1192 COMPOSITION, Page 169. Acceptance of a smaller sum than the amount due 1195 Action on an original debt after it had been compromised . . . 1196 Agreement of compromise requir- ing all creditors to sign it . . 1216 repudiated at the injury of third person 1197 Check drawn where no funds are to meet it 1222 Claim for personal injury may be compromised 1213 Composition agreement is only void as to innocent parties . . . 1206 Creditor accepting fifty cents on dol- lar upon false statements . . 1212 compromising fraudulently cannot set up charge of fraud on another 1205-1207 Creditors agree to accept seventy- five per cent, on the amount of indebtedness set against " our respective names" .... 1298 induced to sign a composi- tion agreement accepting one- half his claim 1193 secretly stipulating for a preference to himself . . . 1205 who has been guilty of fraud in respect to other compound creditors 1205 Damages for false statements of debtor 1212 Debtor secretly giving one of his creditors more than compro- mise 1221 Default of payment of note, may sue on original debt .... 1218 Equitable action to rescind compro- mise 1209-1211 False statement as to amount ac- cepted by other creditors . . 1193 INDEX TO CASES. 507 PARAGRAPH. Fraud practiced in bringing around a compromise 1215 Innocent creditor repudiating the agreement 1207 Money that may be recovered back, 1214 . Must rescind fraudulent compro- mise previous to suing on origi- nal claim 1204 No objection to an agreement to accept a less sum than claim, 1195 Note given in compromise and set- tlement of a claim .... 1215 One renewed note is not a pay- ment of the preceding' one . 1220 Paying money under duress . . . 1214 Payment of check delayed for six years 1223 Plaintiff knew the claim was ficti- tious 1215 Rescinding an agreement after per- formance thereof by other creditors 1197-1202 Seeking to rescind a compromise of a disputed claim 1203 Statute in derogation of common law 1194 Stockholder's personal liability for corporate debts 1194 Successive renewal notes are simply extensions from date to date, 1219 Taking debtor's note for an existing debt does not merge or extin- guish it 1217-1220 Tender without qualification or con- ditions 1203 Third person agreeing to pay one creditor more than others got under compromise 1221 When a check becomes due imme- diately - i222 Where a composition deed is not a relinquishmentof all liabilities, 1300 default is made in payment, 1218 drawer of a check has no funds at the time in bank . . 1222 a note is given in compro- mise 1215 CONFEDERATE CURRENCY, Page 173. Actual value of notes at date of pay- ment .' 1226 Confederate notes cannot be consid- ered as commodities merely . 1227 Co-surety discharged judgment by paying Confederate money . 1224 Fact that payment of a note was in Confederate State Treasury notes 1225 Judgment rendered upon a contract payable in Confederate notes . '1227 PARAGRAPH. Sale of property for cash with refer- ence to Confederate notes . . 122ff Value of Confederate currency, at the payment 1224 of Confederate notes as com- pared with gold ....... 122& CONFLICT OF LAWS, Page 174. Assignment by virtue of or under a foreign law 1232 Contract for forbearance made in one State is binding according to the laws of that State . . . 1233- valid under laws of Michi- gan 1233- Court decisions of one State upon question of commercial law are not obligatory upon courts of other States 1230 Debt barred by statute sufficient consideration for new promise, 1235* Decisions in conflict with the prin- ciples of common law concurred in by courts of this State . 1230, 1231 of courts of one State upon questions of commercial law upon courts of other States, 1230, 1231 In respect to the time, mode and extent of the remedy lex fori governs 122& Law forbidding an individual from doing business under a firm name 1229 Laws providing for a set-off, ex- empting property from levy and sale for debt or exempting wages 122S Local law governs in determining the validity, and in the con- struction of contracts .... 1228 Prohibiting an individual doing business under firm name . . 1229 Usury laws of one State enforced in another State 1233- CONSIDERATION, Page 175. Action upon a written contract, re- sort may be had to parol evi- dence 1238 Agreement to forbear proceedings is a valid consideration for a promise, though claim is doubt- ful . .......... 1236 Copartner giving his individual note after dissolution of firm . . . 1239 1 Creditor releasing one member of insolvent firm from liability for firm's debts 1239 Debt barred by statute sufficient consideration for new promise, 1235 Note given for a draft assigned by 508 INDEX TO CASES. PARAGRAPH. the payee of the note to the maker under agreement . . 1237 Note given for draft with agree- ment at some time if note could not be " collected or realized," 1237 Parol evidence impeaching the con- sideration of an agreement . 1238 evidence may be received although the consideration for a promise may be expressed . 1238 Promise expressed in separate writ- ing of the parties 1238 Promissory note given by one of the members of a copartnership after its dissolution 1239 'Waiver of a legal or equitable right is a sufficient consideration to support a promise 1234 CONSTITUTIONAL LAW, Page 176. Charter may be lost without inter- vention of courts 1240 Default as to limitation imposed . 1240 Omission or violation of charter . 1240 Power of legislature over charters granted by it 1240 CONSTRUCTION OF STATUTES, Page 176. Courts are not controlled by the con- struction of statutes by public officers . , 1241 Practical construction put upon statutes 1241 Public officers construction of stat- utes 1241 CONTRACT, Page 176. Absence of a stipulation as to time when an act is contracted to be done Acceptance of an offer before notice of withdrawal is binding . Action for a breach of contract must be brought by the party with whom contract was made . . on a contract must be brought, as a general rule, by the party interested therein . upon a written contract as it is, which fails, all further action is estopped thereby . . Acts or assent of all the parties to a contract is necessary to re- scind it Act which is forbidden by a statute, or the common law, whether it be bad in itself or merely pro- hibited , . 1321 1263 1295 1305 1376 1301 1342 PARAGRAPH. Agreement as to a contribution of a certain sum for the benefit of fourth party 1267 between an agent of an in- surance company and an appli- cant for insurance .... 1363 by one of three parties to the other two, all three of whom were equally obliged to a fourth party 1270 in writing may be waived, varied or annulled, by a subse- quent oral agreement of the parties 1282 of a creditor, who has bought his debtor's property to return it for a consideration . 1284 to answer for the debt of an- other must be in writing and based upon sufficient consider- ation 1826 to release debtor of all his indebtedness provided that all creditors sign it 1299 under seal, wherein one person makes a promise to an- other for the benefit of a third person 1333 which is capable of a con- struction which will uphold it, 1249 An authorized sale by a broker of stock purchased by him for a customer 1398, 1399 Application of the rule forbidding the varying of written instru- ments by parol proof .... 1359 A price being stated for work to be done under advertised proposal where competition is required, 1385 Assignment of a lease without war- ranty acts the same as a quit claim 1317 Attaching creditor cannot defend an action brought by an assignee of a debtor for conversion of a chose in action 1397 Attachment against property under a charge that debtor was about assigning to the injury of credi- tors 1400 Between creditor and principal, or creditor and surety, without concurrence of co-sureties . . 1289 Bringing an action to enforce a contract after knowledge of its fraudulent nature 1355 Burden of proving the truth of statements alleged to be false, 1367 Capital stock of a corporation is the money or property put into the corporate fund 1370 INDEX TO CASES. 509 PARAGRAPH. Cardinal rule in the construction of all written instruments . . . 1286 Cause of action relating to the sub- ject matter of a patent right . 1290 Change of ownership without knowledge of holder . . . 1243 of terms in a written con- tract, the agreement to do so must be clear and distinct . . 1324 Claim that a corporation had no power to make a contract, charged as a defence. . . . 1599 Composition deed may not re- linquish all liabilities . . . 1300 Consideration of supplies furnished, defendant agreed that crop should belong to claimants . 1327 Consignment of products by debtor to his creditor with order to credit proceeds on his indebt- edness 1281 Constitution of a State cannot im- pair the obligation of a con- tract 1365 Construction of contracts, when the meaning is obscure, construc- tion may be one of fact for the jury 1379 of words in a contract that makes contract unreasonable . 1252 Contract of sale to prevent a prose- cution for forgery of indorse- ments 1242 Contract simply giving right to take ore from a mine, no interest of estate being granted .... 1244 Contract to deliver goods if a note given therefor, is paid at ma- turity 1246 Corporation may become bound to fulfil a contract made in its name in anticipation of its ex- istence 1361 Courts cannot protect the rash against the consequences of imprudent contracts .... 1245 Covenant to secure against liability and one to indemnify against damages arising from non-per- formance of contract .... 1297 Creditor agreeing to look to another source than the promisor for part payment 1331 . being induced to discharge his debtor through a parol agreement to pay the claim made by one who states he owes said debtor 1308 receiving a partial payment before any breach of contract . 1331 Creditors agree to accept seventy- PARAGRAPH. five cents of indebtedness " set against our respective names" 129& Deed having been delivered before payment of purchase money . 1325- made by an intoxicated per- son 1245- -, though executed before a mortgage of same property, is not delivered until after the execution and record of a mortgage second 1388 Degree of proof to establish a right to extinguish a former con- tract 1275- Delivery of products to the carrier is equivalent to a delivery to the consignee 1281 Dissatisfaction, as to goods de- livered, must be real and not pretended 1294 Doubt as to the construction of an instrument prepared by one party, must be construed favor- able to the latter 1378 Equity can no more enforce a void contract than can a court at law 1287 will not readily set aside a reasonable contract, made for the sake of peace 137T Erroneous opinion expressed by the seller of a claim to the buyer thereof who knows the condi- tion of the debtor 1368 Every contract must be mutual as to remedy and obligation . . . 1269" Evidence must be clear and satis- factory to extinguished a con- tract of same parties .... 1275 of fraud committed, by mis- reading a contract to de- fendant 1268 showing that it was in- tended to reduce an agree- ment to writing 1350 Excuse for non-performance of an express condition in a contract, may be accepted 1384 Executory contract for the purchase of lands entered so under false representations 1598 Expression " payable as con- venient " does not excuse de- fendant from paying anything, 1312 Failure and refusal of a factor to fulfil his contract with a pro- ducer 1310 Fiduciary relations between parties who are of legal capacity are only avoidable for fraud. . . 1346 : 510 INDEX TO CASES. PARAGRAPH. Forfeiture right, in case of non- performance by other party . 1293 Tor the delivery of property being entire, the promisee is not bound to receive a part . . . 1307 .. the sale of wheat in store for future delivery, requiring buyer to put up margins. . . 1279 Founded on an act which a statute prohibits under a penalty is void 1348 upon mutual and concur- rent promises 1328 .Fulfillment of a contract beyond time specified (one year) ful- filled after allotted time . . . 1290 Further time given to pay install- ments in consideration of a promise to pay the debt . . . 1382 5, 1456 Exists only in contemplation of law and by force of the law . . 1476 Foreign corporation does not be- come a domestic one by com- plying with laws of the State, 1504 Goods sold, and credit given to a corporation, an officer and stock- holder cannot be held person- ally liable therefor, although they have promised verbally to pay 1433 Heirs of a deceased stockholder must comply with the by-laws, 1498 Illegal action of directors in the in INDEX TO CASES. 515 PARAGRAPH. vestment of corporate funds, may not forfeit the money . . 1508 In absence of statutory restriction, a corporation may distribute its property with preference . . 1440 Incomplete instrument, as if any essential part is blank, which is filled by a thief 1475 Innocent purchaser of stock, taken in good faith as paid up, and where the books give notice to the contrary 1444 Irrevocable power of attorney, filled up or in blank, in hands of a third person is presumptive evidence of ownership . . . 1493 Is liable for its wrongful acts and omissions, and for the acts of its agents 1514 Lease to a corporation is not deter- mined by its dissolution . 1510-1512 Liability of officers of corporations signing false reports .... 1438 of stockholder for debts of the corporation to amount of his stock 1441 of the officials of foreign companies 1504 Liquidators of a corporation, elected by stockholders in due form, will not be displaced by any court - ... 1497 Loss suffered by stockholder, in consequence of a call author- ized by charter, made upon each stockholder to pay install- ment on stock 1489 May be bound by a written con- tract, though a private seal of one of its officers was used . . 1500 Members of a corporation to whom a certificate as a corporation has -been issued by the Secre- tary of the Commonwealth . . 1465 Municipal aid to railways by the issue of bonds 1437 Notice of allotment of shares sub- scribed for, prevents a with- drawal of subscription . 1468, 1469 Officer and stockholder of a cor- poration who states to a credi- tor that the corporation is in his opinion solvent .... 1435 One for whom another has, without authority, assumed to act . . 1432 to whom shares have been transferred gratuitously, does not, by accepting become a debtor to the company, 1453.1454 who deals with a corpora- tion in its corporate capacity, 1503 PARAGRAPH. Original holders of the stock of a corporation are liable for un- paid balance at suit of assignee 1461-1463 Personal liability of officers and stockholders of a corporation for its debts must arise only out of some statutory provi- sion 1485 Persons dealing with" a company are bound to take notice of its posi- tion, as evidenced by its articles of association 1471 Power to issue bonds carries with it the power to cancel those already issued, but not put in circulation 1450 President is a trustee, and will not be permitted to create antago- nistic interests to that of his beneficiary 1495 of a bank may contract, on sufficient consideration with de- fendant in a judgment . . . 1482 of a business corporation has no power, as such, to con- stitute a general manager . . 1442 of a corporation has no au- thority to bind his company to pay an unauthorized loan, 1431, 1432 Private corporation cannot repeal a by-law so as to impair rights acquired under it 1516 Privilege of buying increased stock, within sixty days, in propor- tion to holdings 1492 Property of every corporation is to be regarded as a trust fund for the payment of its debts . . 1515 Purchase of stock of a corporation to be paid out of the salary of the buyer, who was an officer of the company 1487 Railway company, acting under Iowa laws, having power to issue its own bonds, may guar- antee bond of cities, etc. . . 1460 Railway corporation seeking to take property in invitum for the purpose of its road .... 1439 Remedy given by the statutes of another state to creditors of a corporation 1445 Stockholders are severally and indi- vidually liable to creditors to an amount of their stock . . 1494 Subscriber for certain shares, by accepting the same and paying an assessment thereon . . . 1467 Superintendent has no authority by virtue of his office to borrow 516 INDEX TO CASES. PARAGRAPH. money on the credit of his employer 1431 Unissued shares of stock of a corpo- ration are not assets in its hands 1453 When officials refuse to bring an action, a stockholder may do so 1477-1496 Where a corporation, in excess of its powers conferred by its charter, receives a sum of money . 1430 a failure to make a payment on subscription according to agreement does not vitiate the subscription 1481 . a franchise, to be a corpora- tion, can become a subject of sale and transfer 1443 a note may be declared void when discounted without au- thority of law .... 1507-1509 directors, also have no au- thority to borrow money, yet, so doing, binds their company, law ceases to operate and is no longer obligatory, corpo- rations have no existence . shares of a corporation are isued in return for a forged as- signment of a certificate . stockholders have no right 1518 1476 1434 to appropriate any part of the assets to pay salaries due them as officers 1488 stockholders need not be individually made parties in a creditor's suit 1464 Word " members " is synonymous with " stockholders " when ap- plied to a corporation . . . 1505 DAMAGES, Page 21 2. Action for damages abates on death of the defendant Breach of warranty and damage in the sale of a chattel .... Damages for negligence or delay in the transportation of goods by carriers Difference in goods as warranted and as they really were . For false representations, made on sale of a security refusing to receive that which was contracted for and ten- dered properly In an action to recover the price of goods sold and not delivered . Liability of recorder is to the party 1530 1529 1522 1521 1523 PARAGRAPH, who asks and pays for the cer- tificate 1529* Measure of damages for negligence or delay in the transportation of goods. . . . . . . . 1522 Negligence alone is not to be vis- ited with punitive damages . 1526 Recorder of deed's liability for a false certificate of researches . 1529 Statute of limitations, as to false certificates to titles of land . 1525 When goods are attached and sold by the sheriff 1524 Where an examiner of title to real estate gives a certificate of title, 1525 benefits are beyond that of the amount of money paid . . 1523- false representations are made on sale of security . . 1523 DEBTOR AND CREDITOR, Page 213^ After being discharged of his debts by a deed of composition, vol- untarily gives security for a discharged debt 1561 Agreement made between one cred- itor with another outside of the composition 1559 with one creditor for an ad- vantage to him over another . 1559 Appropriation of money, by the creditor, received without in- structions from payor . . . 1531 Bankrupt owes a debt to two per- sons jointly, and holds a joint note given by one of them . . 1563- By receiving and selling a certifi- cate in writing, not negotiable, the creditor changes his rights, 1546,1547 Charge of fraud must be based upon an intent to defraud cred- itors 1533 Claim illegal and absolutely pro- hibited by statute cannot be arbitrated 1542 of money due to wife from husband should be rejected unless proved clearly . . . 1532 Claims against estate of dece- dents, resting on mere oral tes- timony 1558 Clear, distinct and unequivocal promise only will revive a debt, 1555 Concealing facts when negotiating for a discharge of a debt at a discount 1534 Constituting a disposition of prop- erty by a debtor with intent to defraud 1533- Creditor selling to a third person a INDEX TO CASES. 517 PARAGRAPH. negotiable instrument cannot sue on original debt .... 1547 Debt claimed by a wife against her husband 1532 Exchange of values may be made at any time, though one be in- solvent 1556 Extension of time of payment, right to proceed against secur- ity is reserved 1536 Fund created to pay a particular debt or lien, applied to the payment of another debt . . 1562 General creditor of a firm, having no execution or attachment, has no lien 1545 Insolvency of savings bank deposi- tors, are entitled only to rata- ble payment 1541 Insolvent debtor is disqualified from being an administrator . . . 1552 Lending money to a corporation in excess of its legal power to borrow 1537-1540 May, without providing for exist- ing debts, create new debt bona fide 1535 Money expended in favor of another, after his death 1554 " Mutual credit " is a knowledge on both sides of an existing debt 1557 Non-resident debtors may be sued wherever found 1560 One, on an adequate consideration agrees to pay what he owes a particular person 1543 Order on a third person for the payment of money, in the ab- sence of evidence .... 1544 Owner of a coupon, who does not own the bond from which it was attached 1549 Paper signed by creditors in con- sideration of one dollar paid us to discharge, etc 1534 Promise made to a creditor, not a debtor, is binding .... 1543 Taking promissory note from one of several joint debtors, ot from third person 1548 Term " mutual credit " indicates a knowledge of both parties of an existing debt . . . . 1557 Trader who is not able to pay all his debts in the usual ordinary way 1550, 1551 When a debtor would become liable for certain discharged debt . 1534 Where an agreement is not a dis- charge of a debt 1534 PARAGRAPH. Where debtors residing without the State are excluded from the statutes 1560 DEEDS, Page 216. Absolute on its face, otherwise con- taining a clause, subject, never- theless, to the right, etc. Actual delivery of a truit deed to the trustee therein named . . Although a deed is inter paries, a covenant therein made with a third person Certified copy of a lost deed, not intentionally destroyed, from register's office Condition in a deed, granting an estate in fee, which prohibits liquor dealings Covenants with grants to reconvey lands, upon return of money paid Deed not certified and acknowl- edged, recorded with power of sale, to se- cure a debt Delivery of a deed implies its ac- ceptance by the grantee, in the absence of fraud . . . 1573, Description of a deed do not corre- spond so as to describe the same quantity of land . Descriptions as to courses and dis- tances must yield to monu- ments Dividing lines between tracts of land, courses, calls and dis- tances, must give way . Figures and words used in deeds and notes to describe the same thing, and are contradictory . For land without the name of the grantee, when acknowledged and delivered Grants must name a grantor, a grantee, and a thing granted, Holder of notes secured by a deed of trust, becomes purchaser of property at trustee sale . under a quit-claim deed is not entitled to protection, as a bona fide purchaser .... Inadequacy of price in a deed, stand- ing alone, is not enough to set it aside Ineffectual attempt to convey a part of the lands described . . . Lost deed may be made good . Not so certified and acknowledged as to be competent evidence, One deeding land covenanting he 1568 1593 1576 1590 1571 1587 1586 1588 1574 1564 1578 1567 1565 1566 1566 1595 1575 1569 1570 1567 1588 518 INDEX TO CASES. PARAGRAPH. is the owner, acquire an ad- verse title 1583 Ordinarily the date of a deed (ad- mitted to have been delivered) is prima facie evidence at the time of delivery 1577 Parties to notes secured by deed of trust may use them as standing security for future advances . 1594 Power of sale, in deed given to secure a debt, whether debtor or third person 1588 Provision in deed of trust by which possession remains in grantor, 1597 Recitals in a deed as to considera- tion, are not conclusive . . . 1579 Recorded deed is constructive no- tice of its existence and con- tents 1572 Recording acts of Illinois as to the rights of creditors and pur- chasers 1582 Rule in Texas for construing de- scriptions of land : that natural objects control artificial ones, 1885 Simple receipt not under seal for "forty dollars" for my share of the "lot" 1584 Subsequent deeds to same party does not confer a new title . . 1581 Title only passes after the delivery of the deed 1566 Trust deed executed to secure a debt, to be avoided on payment of debt 1591, 1592 Where there is inadequacy of price so gross that common judg- ment revolts 1569 Words, " grant, bargain and sell " in a deed, are a covenant of seisin 1596 DEFENCE, Page 219. Acceptance of the fraud, after dis- covery of a conveyance . . . 1598 Action against trustees of savings bank 1604 Agreement to extend time on notes when they were discounted . 1600 Charge of usury, in action to fore- close a mortgage 1601 that a contract was not in- cidental to the chartered powers of the corporation 1599 Discharge in bankruptcy of an at- tachment debtor 1605 Executory contract entered into under false representation of the vendor 1598 Fact that a check was dishonored PARAGRAPH, when transferred or payment was delayed 160 Purchasing a note at a discount greater than lawful interest . 1606 DEFINITIONS, Page 220. " Mariners " includes a purser per- manently attached to a vessel, 160T Theft or embezzlement by purser in barratry 1607" Where the holder of a note parts with the possession thereof to the maker 1608 DEPOSITS, Page 221. Authority to pay out the dividends and coupons of stocks and bonds, no authority to sur- render them 1610' Bank becomes the owner of money when it is deposited with it .. . 1622- of deposit has no power to apply a money deposit in its possession to the payment of the maker of a note but from the depositor 161& receiving deposits under- takes to pay the deposits to the holder 1619- Book of deposit is admissible to show the amount of the deposit, 1612 Certificate of deposit, payable on return thereof properly in- dorsed 1614 Certified check and certificate of deposit are not the same thing, 1614 Debtor to an insolvent savings bank, as borrower, who is also a depositor 1615-1617 Delivery of pass book, with can- celled check, written up, must examine it in reasonable time, 1624 Deposit in bank funds in excess of amount of an overdue note due to the bank 1609' receipt was not a negotiable instrument passing by indorse- ment 1611 Depository is not always liable for any depreciation in the value of bank bills 1620- may show by parol evidence that money deposited with him was certain bills 1620 Employing clerk in bank, by a de- positor, to examine his written up pass book 1624 Holder of check having demanded its payment, which is refused though ample funds are subject to the check .... , . 1619* INDEX TO CASES. 519 PARAGRAPH. Printed conditions of deposit and payment 1612 Safe deposit company contracted to " keep a constant and adequate guard over and upon safe ". . 1613 Savings banks are agent for the de- positors and their losses are their losses ....... 1617 Special deposits of bonds with a N. B. for safe keeping with knowl- edge of directors .... 1621 deposits withdrawn by per- sons having authority, though bank acted without knowledge of that fact 1610 Where authority is revoked by the death of the person empower- ing such authority .... 1611 DEMAND, Page 223. Corporation warrants drawn upon treasurer 1628 Demand in person elsewhere than at the place designated in bill, 1627 Due bill is recoverable upon de- mand only 1627 Municipal warrants drawn upon the treasurer, must be presented before action 1628 Obligation to refund money, volun- tarily paid by mistake, arises only after notification of the mistake 1630 Personal demand elsewhere than at the place designated in a due bill 1627 Right of action, which has accrued by reason of a refusal upon de- mand 1627 Second demand for articles, the delivery of which was refused at first demand 1627 Terms of a contract between vendor and vendee, the purchase-price of merchandise 1626 To enable a party to recover in an action upon a due bill payable in specific property .... 1627 Vendee's indebtedness accrued upon delivery of articles .... 1626 Where a demand is necessary, etc., 1631 DEVISE, Page 224. Testator devising all real estate, shall be construed to pass all the real estate which he was entitled to devise at time of his death 1632 When a will operates upon lands acquired after making of the will 1632 PARAGRAPH. Will must declare, in express terms, devises or in other terms de- notes intention to devise . . 1632 DISCOUNT, Page 224. Antedating a note, bearing interest, as of date when the money was due 1639 Bank discounting a bill, at request of the party, give a certificate of deposit payable at a future day 1636 Draft, discounted at legal interest, is not rendered usurious by reason of any intended lawful use of it by the discounting owner 1633 Drawer presents draft to payee with acceptance of drawees on it . 18 May by express stipulation exempt himself from liability for neg- ligence 1242 Note discounted at rate of seven per cent 1634 Person giving his creditor a note for part of the debt, which is discounted at more than legal interest 1637 The purchase of one's note at a dis- count is not usurious .... 1638 Three days of grace may be in- cluded when taking interest in advance, in discounting a note, 1635 Usury more than legal interest may be realized by the dis- counter of a draft 1633 DIVIDENDS PLEDGED, Page 224. Bank has the right to hold a cash dividend 1640 Refusal to pay dividend on attached shares 1640 EMBEZZLEMENT, Page 225. Indorsement of a negotiable bill purports to pass title thereto from the indorser 1642 to one person for the benefit of another 1643 Must be made to appear that em- bezzled money was received by virtue of the office of the embezzler 1641 Restrictive indorsements which negatives the presumption of a consideration 1643 Sustainment of an indictment, under statute * 1641 520 INDEX TO CASES. PARAGRAPH. ENDORSEMENT, Page 225. % Accommodation indorser does not guarantee the genuineness of a draft 1651 indorser of notes discounted by a bank having also mort- gage as security for notes . . 1658 Action by the bearer, who was also the maker, against an in- dorser 1660 Agreements of indorsee with a stranger to give to the acceptor does not discharge maker . . 1679 Altered note discovered before it was due and the original amount ascertained .... 1694 An indorsement to one person for the benefit of another . . . 1643 Being necessary for the payee to indorse the note to make it negotiable paper 1684 Bill of exchange drawn in England and payable in Spain. Ac- ceptance refused 1661 Certificate or affidavit of an in- dorser setting up usury as a defence 1655 Change of contract on which in- dorsements are to be made, 1704, 1705 Consideration for a transfer, by in- dorsement of a bill, is pre- sumed 1642 Contracts for payment of money, except instruments governed by commercial law .... 1667 " Defect of parties plaintiff " to a joint and several note, made by three defendants to order of plaintiff 1695 Delay granted to the maker of a note by the holder, without knowledge of indorser reversed here 1670 Devising the benefit of any security held by the creditor, indorser must first pay the paper . 1648-1649 Draft indorsed " Pay. . . for the benefit of her son Charlie " . . 1709 Extension of time given to maker of a note upon consideration of interest paid in advance without assent of an indorser, 1652 Fraudulent alteration of a note made subsequent to his indorse- ment 1699 Holder of a note can claim under the equity of the indorser, out of the assigned estate . . . 1688 of a note having previous knowledge that the indorse- ment was an accommodation . 1655 PARAGRAPH. Indorsee of negotiable bill or note, in the absence of proof or fraud is presumed to be owner . . 1677 of negotiable note, who takes it discharged of equities to which it was subject in the hands of payee 1697 Indorsement in blank of notes not negotiable is not evidence of a written promise to pay . . . 1674 made with an understanding that plaintiff's name should be first above 1660 of a negotiable bill purports to pass title thereto, for equiva- lent consideration .... 1707 of a negotiable note before maturity by the payee . . . 1644 to one person for the benefit of another affords no proof of consideration 1708 upon note, that the maker may use principal after ma- turity . . . ... . 1690, 1691 Indorsements of a restrictive nature, do not pass title 1643 Indorser cannot maintain suit against the indorser or assignor on paper not commercial, ex- ceeding fifty dollars .... 1667 of a check given with his knowledge in payment of a gambling debt 1696 of a note, even though it be an accommodation note, is not one 1682 of a note is a competent witness to prove an agreement in writing made with holder at time of his indorsement . . 1669 of note after its maturity and his liability becomes fixed, joined with the maker in a bond for further time . . . 1662 on note receiving mortgage as security, being obliged to pay note 1656 who has taken sufficient se- curity to protect himself against possible loss 1668 Indorsers cannot be made liable for any act beyond that which they assumed in indorsing note, 1706 Interlineations of a note in ink of a different color, made after in- dorsement 1699-1703 Irregular indorsement on a note, does not relieve liability . . 1689 Joint makers of a note, payable at any bank in Savannah, one INDEX TO CASES. 521 PARAGRAPH. signing on face, the other on the back 1693 Last indorser having paid the amount of a judgment on the note, with interest and cost . 1657 Maker of a note furnishes to the second indorser money to pay the note 1676 Making and dating a note at a par- ticular place is not equivalent to making it payable there . 1653 No notice of dishonor by non-ac- ceptance is required by the laws of Spain 1661 Note indorsed by payee in blank, and delivered to another, who reassigns it to the payee . . 1671 signed by maker, indorsed in blank, first by payee and then by third person .... 1672 sold by indorser a ne- gotiable note who added to his name, " without recourse " . 1687 Notice of a protest left at the domi- cile of one who has been ap- pointed temporarily as official to act away from his family . of patent sent through the mail 1647 1678 Omission to notify indorser of the non-payment of previous in- stallments, as they fall due on a note 1675 Parol evidence contradicting an in- dorsement of a bill before ma- turity 1644 Party indorsed negotiable note for maker's accommodation, who raised the face value by alter- ing it 1694 who is a stranger to the note indorses the name before de- livery 1680 Payee of a note indorses it in blank and delivers it to another . . 1671 Payee's name appeared on back of note in usual position of first indorser 1689 Payments made by maker of a note after protest for non-payment, . . . 1664-1668 Person of unsound mind who signs as surety a note given for ante- cedent debt 1692 Plaintiffs indorsed note at the re- quest and for the accommoda- tion of D., which had been made by another person . . 1706 Promise to pay a note, by indorser, after a failure to protest its non- payment 1646 PARAGRAPH. Promise to pay, by indorser, after default of payment by the maker ...... 1654-1659 Promissory note indorsed, " as- signed to " A., made in the name of the payee .... 1645 Recourse against indorsers is not lost by holder of a note accept- ing from maker another note as security 1650 Restrictive indorsement, negativing the presumption of a consider- ation 1643 Rights of an indorser of a note, whose liability is fixed by pro- test when maker has assigned, 1688 Second indorser may maintain an action against the first for money paid on note .... 1684 Stranger indorsing a note at the time it is made, is prima facie liable as payee 1673 Waiver of demand and notice may be made by parol 1666 Waiving of protest by aiding to ob- tain an extension of time on a protested note 1663 When an implied warranty, as to the validity of a note is cre- ated 1687 indorsee of bill of exchange in sets alleges loss in transmis- sion of acceptance .... 1681 Where negotiation of the altered note to plaintiffs did not render defendant liable for his indorse- ment . 1702-1705 EVIDENCE, Page 235. Accidental loss or disappearance in a bank of a bill sent to it to collect Action upon a note executed and indorsed by a firm without consideration Affidavit of assessors as to obtain- ing requisite consents to the issuing of bonds Bonds purchased with another's money, who desired them to be taken in name of buyer. . . Entries in the defendant's own books offered to show on whose account they were entered . . Evidence admitted to establish ownership of bonds sold . . that is a repetition of decla- rations furnished by defendant, Forged bond sold by one who held it as security for a loan to the 1712 1716 1725 1729 1724 1721 1733 owner 1730 522 INDEX TO CASES. PARAGRAPH. In a court of conscience deliberate concealment is equivalent to deliberate falsehood .... 1723 Judicial notice in one State of the laws of another State . . . 1735 Living man speaks to enforce a dead man's contract with him- self .... 1723 Memorandum book having altera- tions and erasures .... 1719 Notes given to pay a gambling debt which was given while intoxicated 1711 Opinions of experts as to subject to peculiar habits 1715 Parol evidence to explain receipt . 1718 Party to an action calling the oppo- site party as a witness . . . 1728 Plaintiff being allowed to testify, under objection and exception, 1734 Plaintiffs books of original entries offered in evidence of the items and amount of debt . . 1731 President and manager borrowed money on his own credit for his corporation 1717 Right of partner to sign the firm name to a contract of indem- nity of third person .... 1722 Statement, either oral or written, made by the vendor after a sale 1713 of grantor of land made after he has conveyed land . 1714 Title of assignee of a non-negotia- ble note 1736 To acquire the force of law a cus- tom must have been long estab- lished. 1732 Want of date in a memorandum book . . . 1720 Where entries in book of corpora- tion against officers . . 1726, 1727 evidence of the details of fraud do not tend to confirm defendant's version .... 1710 EXECUTION, Page 238. Action on a note made by defendant W., and indorsed for his ac- commodation by E 1737 During life of the execution debtor had property sufficient to satisfy it 1737 Indorsed as an accommodation . . 1737 Sheriff directed not to act upon execution 1737 When facts constitute no defence as to liability of indorser . . . 1737 PARAGRAPH. EXEMPTIONS, Page 238. Members of a firm severally or jointly are entitled to its as- sets, exempted 173& FACTOR, Page 239. Advances made or liabilities in- curred before an assent to the direction of the owner . . . Application of proceeds from a sale of goods to the payment of the consignee's note of proceeds of the sale of goods owned by one who has given his factors a note . Banks taking pledges from factors, as security for the payment of general balance Exercise of diligence is required of all Factor cannot bind his principal by a disposition of his property unusually cannot dispose of his principal in violation of his order -, in consideration of consign- ments made to him, makes ad- vances or incurs liabilities . . must keep books in which shall be entered account of his principal selling the note of his con- signee and pledging the goods of such consignee .... -, under the common law, has no right to pledge, whether he is in possession of goods . False representations as to what a patent-right costs ; or was sold for, or as to offers made for it, representations to induce a person to enter into a contract, Insolvent firm opening a bank ac- count, in name of firm, with word " agent " added . . Member of a firm making state- ments to a mercantile agency, he knows to be false . . . Misrepresentations made by one party to another to induce him to enter into a contract . Owner has a general right to im- pose terms upon his factor . Principal of a factor is entitled to correct copy of the entries . Representations, that are false of opinion of any kind about property sold . . . . . Risrht of owner is restricted if he 1750> INDEX TO CASES. PARAGRAPH. has drawn against consignment before instructions are given, 1739 Unauthorized pledge by a factor of goods owned by a firm of which he is a member . . . 1742 When testimony does not exhibit any want of ordinary care on part of plaintiff 1750 Where an action of deceit will not lie on false representations . 1750 FAIR DEALING, Page 240. Fiduciary relations extend to all cases wherein confidence is reposed, investing person with an advantage 1749 Parol evidence that a deed absolute on its face was in fact in- tended as a mortgage . . . 1747 Person taking securities or contracts enuring to his benefit, where fiduciary relation is shown to exist . . . . . . . 1748, 1749 Transaction which is equally ac- ceptable of two explanations, one of which is fraudulent . 1747 FINDING OF LAW AND FACT, Page 241. Fact stated in finding or requested to be found on uncontroverted evidence 1752 No fact can be considered for pur- pose of reversing judgment, etc 1752 FIXTURES, Page 241. All within a mortgaged building, that is intended to permanently increase its value .... 1753 Fixtures erected by a tenant on de- mised premises 1755 Machines which are incidental merely to- the particular busi- ness 1753 Mortgage of a building covers en- gine, etc 1753 Removal temporarily of a part of the realty 1754 Temporary or permanent accession, 1754 That which constitutes a fixture . 1754 FOREIGN CORPORATIONS, Page 241. Indirect prohibition against foreign corporations 1756 FORECLOSURE, Page 242. Assuming and agreeing to pay a mortgage on purchasing prop- erty 1761 PARAGRAPH. Bond on undivided half of premises, 1763- Claim by lienor for surplus money on sale of land 1762 Deficiency judgment sought to be avoided 1761 Foreclosure may be brought in name of owner of the note . . 1757 Husband and wife execute a mort- gage 1763- Implied agreement to pay high rate of interest 1760 Lien ceasing at the expiration of one year 1762 Plea of usury in foreclosure suit . . 1760' Possession under foreclosure sale void as against ower of equity of redemption 1759 Sale without notice conveys no title, 1758 Sixty days' notice before foreclosure, 1758 When not standing in position of mortgagee or assignee . . . 1759' FORGERY, Page 244. Absence of agreement between sus- picious person and the forger, 1767 Action against all persons connected with forgery 1764 Bank must pay a confirmed, even when it is a forgery .... 1768 Equity will reform a contract where there is a mistake on one side and fraud on the other . . . 1766 Forged certificate on a check when confirmed verbally or other- wise by an authorized officer, 1768 Money obtained on pledge of forged bonds. 1767 Person receiving a part of the pro- ceeds of a forgery .... 1767 When several persons are party to a forgery . 1764 Wife who merely aids husband in the commission of forgery, 1765, 1766 FORMER ADJUDICATION, Page 244. Agreement made to evade statute against usury 1770 Final judgment upon the merits . . 1769 Judgment is not a" bar to the de- fence of usury ...... 1770 that is admissible in a sub- sequent action 1769 Notes given to plaintiff's assignor, which were usurious .... 1770 FRAUDS, Page 244. Accepting a warranty under false representations 1793 Action for fraudulent representa- tions should be supported by proof 1777 524 INDEX TO CASES. PARAGRAPH. Agreement between parties to keep silent as to a mistake . . . 1783 Alleging fraud on general abstract terms 1805 Assignee attaching a chattel mort- gage given by his assignor . . 1788 Assignment executed and filed on Sunday 1779 of property by a debtor made voluntarily and without consideration ...'... 1785 Balance due one of the assignors from an insolvent bank was omitted 1778 Burden of proof is on the complain- ant .... 1772 Committing a legal fraud in a busi- ness transaction 1794 Contract for the purchase of goods on credit with intent, not to pay for them 1775 Credit standing to credit of one of the assignors upon books of an- other bank 1779 Defeating a sale under special charges 1776 Division of copartnership property between partners 1795 Effort to retake entire property, which is successful in part . . 1781 Equity to relief on the ground of fraud 1806 Facts constituting the defence must be set out 1807 Fraud is never presumed .... 1772 must be clearly and conclu- sively established 1772 Frauds committed on both sides . 1801 Fraudulent intent on part of both grantors and grantee .... 1804 representations must be in- jurious 1789 Grantor in an alleged fraudulent conveyance 1803 Guarantee, we severally agree to become responsible, etc., when recommending a person . . . 1774 If the act is in effect a fraud upon fhe creditor 1786 Illegal acts prejudicial to rights of others 1786 Infancy is a bar to an action on a case of false and fraudulent representations 1790 Material representations by a vendor with intent to deceive . . . 1791 Mere fraudulent representation is not actionable by itself . . . 1777 .Money obtained by both a pretence and promise 1802 PARAGRAPH, Motives of parties committing a fraud are of no consequence, 1786 No legal duty rests upon judgment creditor to disclose a mistake, 1783 Officials of corporations are person- ally responsible for all their acts, good or bad 1771 On trial charging forgery of bank notes not necessary to prove the bank was duly incorporated . 1782 Pretence of a false existing, or a past fact be sufficient . . . 1802 Purchaser in good faith, having paid a part of the purchase money 1776 Receiving property knowing it to be the subject of a trust . . . 1787 Representations as to quality of goods 1793 Right of action on a charge of fraud accrues at the time of discovery, 1784 Sale and delivery of goods was in- duced by fraud 1781 Statute of limitations begins to run against an action on a charge of fraud 1784 Two persons engaged together with design to defraud 1800 Vendor authorizes an agent to make untrue representations to the vendee 1792 Want of an object in a guarantee agreement 1773,1774 What constitutes a disposition of property by a debtor with in- tent to defraud creditors . . 1780 Whatever fraud creates justice will destroy 1771 When a contract is not fraudulent although the purchaser knows himself insolvent 1775 Where fraud in the purchase or sale of property is in issue . . . 1799 fraud is committed in name of a corporation . . . . 1771 GIFT, Page 249. Absence of complete delivery . . 1810 Delivery of a gift to donee or some one for him 1808 Donation of instrument securing payment of money, reserving interest thereon during life of donor 1809 Donor retaining instrument under his own control 1810 Essential to the validity of a gift . 1810 Gift made by creating a joint pos- session of donor and donee . 1811 Intent to vest title in the donee . 1812 INDEX TO CASES. 525 PARAGRAPH. Possession and title of donor must be shown 1808 Should be a delivery such as rests in the donee control and do- minion 1812 To establish a valid gift . . . . 1808 Valid gift of an instrument securing payment of money .... 1809 GUARANTY, Page 249. Action on a guarantee alleged to be contained in a letter and telegram Agreement that is a guaranty and not an original promise . to assume at maturity a share of outstanding notes of R. Amount of liability is limited, and the time is not .... Assent given in writing and orally to a renewal Assignor of order for money agreed, if not paid by party, to pay its face value Buyer stated that defendant had offered to assist him, which he indorsed on letter .... Collateral promise to pay another's debt Concealment which will avoid a guaranty must be a fraudulent one Consideration necessary to render a special guaranty valid . . of a guarantee need not be expressed in the written con- tract itself Continuing guarantee constituted . Contract of guarantee must be strictly construed Court alone determines contracts of guarantee Delay of foreclosing until fire de- stroyed the buildings mort- gaged Due diligence in exhausting legal remedies against principal debtor is a condition precedent, Failure to serve guarantor with no- tice of non-payment .... Giving additional time for payment on paper guaranteed . . . Guarantee payment for gocds sold, taking different than those provided for in the contract . Guaranty between parties to form a corporation, etc of accounts, notes, indorse- ments, etc of a firm determined on the dissolution of the firm 1815 1837 1837 1819 1847 1822 1813 1836 1824 1826 1826 1833 1831 1815 1837 1839 1832 1814 1813 1814 1840 1814 1845 PARAGRAPH. Guaranty of a note where the writ- ten promise of debtor sets for the, etc 1825 , that in case money could not be collected .... he, guarantor would pay . . . 1821 Guardian's security is only amend- able after settlement of guar- dian's account 1825- " I am willing to go his security for the amount of twenty-five dollars" 1830- " I hereby covenant that, in case of foreclosure and sale ... to pay deficiency " 1838 Indorser refused to sign a note as maker ........ 1817 Insolvency of maker of a note does not release the guarantor . . 1818- " I shall hold myself responsible for ($15,000) that amount," etc. 1831 Legal proceedings are needed to fix the liability of a guarantor, 1818- Note in hands of payee on back the signature, in blank, of a third person 1816 Notice not necessary when the un- dertaking is absolute . 1827, 1828 Oral guaranty of the payment of the note of a third person . . 183& Orally promised to pay R.'s note at maturity, if R. did not . . . 1836- Parol evidence admissible to show circumstance under which promise was given 1823- . Person, for whose benefit the guaran- ty is given, becomes insolvent, 1828 Pledge of property to a bank under the guaranty of a third person, 1820" Promises to answer for the debt or default of a third person . . 1829 Proof of demand or notice of non- payment is required to hold a guarantor 1818 Request of payment and notice of non-payment 1827 Special promise to answer for the debt or doings of another . . 1823 Sufficient consideration required to make valid a guaranty . . . 1827 Waiving any material condition on which a guarantee is made . 1814 " We will see the articles paid for " 1829 What is not termed a continuing guaranty 1830 Where a contract should be con- strued as a continuing guaranty, 1819 a guaranty becomes simply against a diversion of property, 1820 consideration of guaranty is stated in contract .... 1826 526 INDEX TO CASES. PARAGRAPH. Where fraudulent in fact or in law, 1824 . it may be presumed that a person indorsed a note . 1816, 1817 the guarantor undertook to insure the payment of all in- debtedness 1814 "Words " I guarantee the sum five hundred dollars' value in glass shades," etc. 1835 of a guaranty will be read most strongly against the guar- antor - ... 1834 responsible for the payment of any sum not to exceed $5,000, which W. might re- quire of said bank. . . 1841-1848 " we hereby agree to guar- anty the payment to for any goods . . to $500 " . 1833 -^ which were held not to con- stitute a guarantee .... 1815 HOMESTEAD, Page 257. Abandoning homestead temporar- Claim for homestead exemption Deed executed, in usual form, by husband and wife which con- tains no waiver, etc Homestead law does not vest in the ower any new rights of prop- erty sold to supply a deficiency, existing after exhausting other property on property exempt un- der the homestead act Mortgages upon homestead of no validity unless signed by hus- band and wife Owner of homestead absent on business with his family, for two years 1854 1853 1852 1858 1850 1851 1850 1854 HUSBAND AND WIFE, Page 257. Action against husband and wife for necessaries furnished on credit of wife 1878 All property is held subject to pay- ment of the debts of the owner, 1858 Before assignment of dower, wid- ow's right is a mere chose in action 1863-1865 Bill paid to one who holds it in good faith 928-931 Charge of deception or mistake is no defence for the signing of a deed by wife who did not read it or have it read 1855 Contract binding separate estate of wife 1859 PARAGRAPH. Conveyance made by husband, through third person, to his wife, I860 of land by husband to wife previous to his becom- ing solvent 1881 to husband and wife makes them tenants by the entirety . 1868 Covenants for wife's separate maintenance .... 1871, 1872 Creditor unites two classes of claims in one suit 1876 Deed, in ordinary form, of husband and wife, which contains no waiver of the homestead . . 1852 Deposit by husband in name of wife 1874 Homestead law does not vest in the owner any new rights of prop- erty . 1858 Husband and wife contracting with each other 1880 * becomes absolute of wife's legacy, and may dispose of it, 1857 cannot loan money to his wife, both being insolvent . discharging a debt to his wife rather than to other credi- tors having reduced to his posses- sion funds belonging to his 1858 1877 1856 wife Income derived from the home- stead 1858 Joint bond of husband and wife se- cured by mortgage on wife's land 1869 Land deeded to husband and wife, thereby becoming seized of the entirety 1861, 1862 Married woman executes a note and at the same time a paper declaring her intent to charge her separate estate, etc. . . . 1873 Particular phraseology is necessary to create a separate estate for wife 1866 Personal acquisitions of a wife . . 1870 covenants in the husband's mortgage 1882 Property conveyed to wife, for which payment was made out of husband's property . . . 1876 Receipt by the widow of one-third of the rent of real estate . . 1864 Right of the wife to demand read- ing of papers before signing them 1855 Rights of a married woman . . . 1867 Settlement by husband upon his wife 1875 Wife executing mortgage upon the INDEX TO CASES. 627 PARAGRAPH. representations of her hus- band . 1855 "Wife mortgaging her estate to se- cure future as well as present debts of her husband . . . 1879 not liable for deficiencies on foreclosure of a mortgage from husband and herself .... 1883 Wife's convenant in her husband's, 1882 INDEMNITY, Page 261. Indorser to a specified amount of negotiable paper 1884 Mortgage executed on real estate to indemnify indorser against loss 1884 Security for indorsements made and to be made in the future . . 1884 INNOCENT HOLDERS AND PUR- CHASERS, Page 261. Deed to be valid against creditors and purchasers 1885 Deeds to purchasers from heirs and devisees 1885 Judgment bonds of a county in the hands of innocent holders for value 1886 Unrecorded deed passes title of the grantor to the grantee . . . 1885 Warrants issued in excess of the . 1886 constitutional limitation INSURANCE, Page 261. Agreement to pay commissions on renewals 1893 to pay commission on re- newals terminates at dissolu- tion of company 1893 Assignee of a policy of life insur- ance caused death of assured . 1896 Controller of property affecting an insurance thereon in his own name 1889 Declaring policy void on failure to pay annual premium . . . 1888 Failure to pay at time stipulated . 1888 Implied warranty in every marine insurance of seaworthiness, 1891, 1892 In absence of fraud, accident or mistake, valuation agreed upon 1889 Law will not imply an unwritten contract which cannot be made without writing 1894 Not necessary that insurer give no- tice of forfeiture of policy . . 1888 Overvaluation's eftect upon a valued marine policy 1889 Policy of insurance construed most strongly against insurer . . . 1887 PARAGRAPH. Sale and assignment of a life policy outstanding and valid . . . 1890 of a life policy as a device to evade law 1890 To whom losses must be paid . . 1889 Waiver of breach of condition as issuance of policy of insurance, 1895 INTERLINEATIONS, Page 262. Amendments made by erasurers and interlineations .... 1897 Disfigured papers should be stricken from the files 1897 INTEREST, Page 263. Abatement of war interest upon debts contracted prior to April 1865 Absence of a written agreement, only legal interest can be re- covered of evidence as to current rate of interest at time of con- tract . Action for recovery of interest after payment of the principal . . Agreement in a note to pay eight per cent to pay compound interest, to pay greater interest than ten per cent., not in writing . Allowance for failure to pay at maturity money due .... Authority to sell notes held as se- curity to subscribe payable in municipal bonds, limited to first company ...... Carries stipulated interest to date of judgment Commercial paper discounted by bank at excessive rate of in- terest Compound interest in special cases, interest is not usury . . . interest not allowed those holding, simply creditor and debtor relations Contract clearly expresses the in- terest to be paid for interest at the rate of twelve per cent not fixing rate of interest . that interest shall be com- pounded if not punctually paid Creditor's right to interest on a debt from time debt was pay- able Custom regulates rate of interest 1911 1958 1919 1957 1901 1920 1904 1917 1954 1930 1948 1962 1920 1936 1945 1908 1921 1903 1936 1931 528 INDEX TO CASES. PARAGRAPH. where the law does not inter- fere . . 1933 During war, creditor entitled to war interest 1905 Entry of judgment mortgages are merged therein 1916 Excessive interest provided for in writing 1901 Fact that the paper is business paper 1962 First payment on judgment is first applied to discharge interest due 1956 Guaranty indorsed upon a note, the interest specified in note . . 1925 High rate of interest running on note after law was changed . 1909 Interest after maturity is treated as a penalty, not covered by con- tract ... : 1901 after maturity recoverable by way of damages .... 1900 interest allowed in a judg- ment in one state, does not con- trol when suit is brought in this state 1913 allowed, not under contract, but by way of damages . . . 1932 at rate of six per cent., where no rate has been agreed upon 1944 in mutual accounts . . . 1942 . is, apparently not sanctioned by Supreme Court on claims against government .... 1941 is due on coupons, after payment of them is unjustly neglected or refused .... 1939 is not allowable in action for the breach of a contract . . 1914 on deposit after the bank has failed 1929 on judgment or debt due is computed up to time of first payment 1956 on interest is not allowed, as a mere incident .... 1947 on note payable on demand, 1943 rate is governed not by virtue of the mortgages, but of the judgment 1916 rate named higher than the customary rate of the state . I960 Judgment to bear interest, at ten per cent, per annum, " from date " until paid 1898 Loan of money made for two months at two per cent, a month . . 1954 Measure of damages for non-pay- ment of debt due 1917 Note at ten per cent., etc., from date PARAGRAPH. bears six per cent, after ma- turity 1949, 1950 Note given by husband and wife, interest on which was increased by husband 1910 1 payable on demand, with rate of interest specified there- in 1946 One to whom moriey is paid, who receives it believing that it is his due 1955 Only legal interest will be allowed when a larger interest is not stated in writing 1951 Payment of excessive in money or otherwise 1961, 1962 Penalty for non-payment of princi- pal sum 1918 Prohibiting banks charging more than seven per cent 1961 Promise to pay in labor and material in annual payments, interest due thereon 1923 to pay interest due on the note at a future day, etc. . . 1904 to pay interest on interest . 1947 to pay on demand, with in- terest 1926 Providing for a payment of inter- est prior to the time when principal becomes due . 1959, I960 Rate of interest stipulated by parties payable after maturity . . . 1917 Recovery by the party paying ex- cessive interest twice the amount 1961 Securities bought at any price parties may agree upon . . . 1935 Settlement upon basis of old rate, and debtor gives new notes and mortgage for the whole . . 1960 Seven per cent, interest allowed on mortgage executed before rate of interest was reduced to six 1916 Stated rate of interest is recoverable up to date of verdict . . . 1952 Suing, not on a note, but on the consideration for which note was given 1934, 1935- Suit on note payable on demand without previous request for payment 1942 Sureties liable for interest as dam- ages in an action upon an of- ficial bond 1906 Taking care that principal shall not be suffered to accumulate by accruing interest 1956 Ten per cent, interest allowable, 1907,1908 INDEX TO CASES. 529 PARAGRAPH. Ten per cent, until maturity, and two per cent, per month after maturity 1953 When a bequest or contract is si- lent as to interest .... 1957 at the place of contract rate of interest differs from place of payment 1899 interest is made payable an- nually upon a fixed date . . 1924 judgment is recovered on a note, the contract is merged in judgment 1953 Where an agreement for a loan, nothing is said as to rate of in- terest 1915 Whether a negotiation of securities is a purchase or a loan . 1937, 1938 " With interest at rate of sixteen per cent, per annum from date " 1927 IRREGULARITY, Page 269. Consenting to a proceeding he might prevent by resisting it, waives all exception thereto, 1963 JOINT DEBTORS, Page 270. Estate of one jointly liable with others dying 1964 Imposing an obligation where none existed before . . . 1964 Provision for the preservation of con- tinued liability after death . 1964 JUDGMENT, Page 270. After satisfaction of a judgment in favor of plaintiff 1966 Debtor's property transferredthrough the agency of a valid judgment, 1968 Fraud is unable to defy justice . . 1968 Reaching property, alleged to have been 'transferred to defraud creditors, 1967 Reversal of a judgment destroys its efficacy 1965 Where statutes of limitations are avoided 1966 Validity of a claim upon which judgment has been rendered, 1967 JUDICIAL NOTICE, Page 270. Court will take judicial notice of the nature of the business of mercantile agencies .... 1969 General course of business in a community 1970 course of the business of banks 1970 JUDICIAL SALES, Page 270. Judgment of foreclosure directing sale of mortgaged premises . 1971 34 PARAGBAPH. Procedure prescribing the duties of an outgoing sheriff .... 1971 Property advertised for a sale to take place after expiration of sheriff's term 1972 JUDGMENT, Page 271 . Absence of fraud, judgment takes effect only on actual interest of debtor 1973 Deed unrecorded executed pre- vious to entry of a judgment, 1974, 1975 Establishing want of jurisdiction devolves upon the party so questioning 1976 Legal title to a judgment recovered by surviving member of a firm 1977 Money judgment obtained where , service was made by publica- tion 1979, 1980 Securities pledged to a banker or broker 1978 Title of a grantee of judgment debtor 1974 JURISDICTION, Page 272. Decision made by the court upon facts Entertaining jurisdiction outside statute requirements .... Establishing want of jurisdiction is upon the party so questioning it General Term of Supreme Court amending its record . . . When the judgment of a court be- comes a nullity LACHES, Page 272. Case where the indorser was dis- charged Delay in moving for a less time . of presentation in this case 1961 1982 1976 1981 1982 dishonored the note Intent of parties was that note should be presented for payment with- in reasonable time .... Note made " payable on demand after date " was indorsed and trans- 1984 1983 1984 ferred by payee on the day of its date Payment demanded and refused . Proceeding to vacate an assessment, LAPSE OF TIME, Page 272. Lapse of time does not bar a direct trust Trustee and cestui que trust . 1984 1984 1984 1984 1983 1985 1985 530 INDEX TO CASES. LEASE, Page 272. PARAGRAPH. Covenant to pay rent does not cease to be obligatory 1986 Lease giving lessee a right or option 1988 Lease to a corporation after disso- lution 1986 Lease under seal, is regarded as made upon sufficient consider- ation 1988 Warranty of title and a covenant for quiet enjoyment .... 1987 When accepted by the lessee . . 1988 Words " grant " and " devise " in a lease 1987 LIABILITIES OF BANKS, Page 79. Are liable, in the same way as indi- viduals, for a violation of usury laws 562, 563 limited in their powers, 551-553 Bank is not liable for an act of its officer which has never been settled by the courts . . . 650 Cannot become indorser in a gen- eral sense 554 Cashier has no authority, ordinarily, to discharge the debtor with- out payment 647 is generally the chief execu- tive officer 646 Cashier's disregard for usury laws unknown to the bank will not vacate charter 567, 568 inherent duty to certify checks 597,598 inherent duty to indorse paper 636,637 Certified check may be held by owner as a depositor . . 603-606 Contract to perform the duties of an office is implied by the party accepting 550 Contracts signed by president and cashier not duly authorized by directors 560, 561 Customer instructs bank to pay cer- tain drafts drawn by A., same being forgeries .... 656, 657 Debt paid to receiving instead of the paying teller 658 Deposit of bonds as security for a loan 591,592 Depositor instructs his bank to pay checks drawn by his agent, 652, 653 Directors are the only persons au- thorized to make a contract binding, with a few exceptions, 559 Directors' violation of State laws or provisions of charter subjects bank to forfeiture of charter, 569-573 PARAGRAPH. Doubt of liability extends only to cases when a deposit is left for sole convenience of deposi- tor 590 Fails after certifying check and be- fore it is presented for pay- ment . 609-624 Gold or foreign coin be deposited, 581-592 Holds a note made by one of its depositors which it neglects to pay at maturity .... 654, 655 Liabilities for special deposits of every kind 579-581 Liability for negligence or want of skill on part of its officer . . 650 May assume a liability, which is nearly akin to the principle of certification 660, 661 make itself liable as having accepted by detaining it an unusual time 607, 608 make itself liable by certify- ing it to " be good " if done by a proper officer 593 plead any legal defences it may have to an action brought against it 575 Not always liable for misrepresenta- tions fraudulently made by a cashier 648,649 Note certified as " good " if done by a proper officer . . . 625-627 Officer takes a check in payment of a note left with it for collec- tion 651 Officers exceeding their authority, 555-557 Officials acting without authority . 635 Paying a check of a cashier of an- other bank which has a fund to its credit 638, 639 teller or other officer may be authorized by directors to ' certify 598-602 President or other officer certifies his own check 595 Profits are derived mostly from its deposits 577-579 Responsible for a check which the payee accepted at the in- stance of the bank . . . 628, 629 Through mistake gives its customer credit for an amount of a note left for collection 659 Usually, cashier cannot make a con- tract that will bind the bank . 641-645 Whatever is said or done by an officer of a bank in the dis- charge of his proper duties, 631, 632 INDEX TO CASES. 531 RIGHTS, DUTIES AND LIABILI- TIES OF BANKS, Page 94. PARAGRAPH. Absence of authority implies prohi- bition ....... 783, 784 Acceptance of an accommodation draft, drawn and dated in one state, on a resident of an- other . . 965-967 of drafts by officials of the government 923 Acceptor of a draft paying it before maturity 949 Acceptor's name written across the stamps before the bill was drawn 916 Action for a conversion of a draft, or to recover moneys paid by mistake 930-932 . in S. C. against N. B. may be brought where plaintiff re- sides 741 . upon a bill of exchange may be defeated for want of con- sideration 918, 919 Act of congress in regard to usury supersedes those of a state 694,695 Acts of a bank after insolvency . . 703 Adjusting and compromising con- tested claims 781, 782 Administrator's liability for assess- ments 732-736 Agent, as indorser, is a mere designatio persona .... 913 Agent's admissions made after the fact, and entirely unconnected with his act of agency . . . 885 Agreement to exchange U. S. for registered bonds, neglecting so to do, the bonds were stolen 901 Allowances on settlement of ac- counts of insolvent savings bank . 862 AH stockholders of N. B. are liable for assessments for debts of the bank 782 Amount on policies a set-off to de- posits 797, 798 Apparent authority only operates by way of estoppel and takes place of real authority . . . 751 Assessment of bank shares is not subject to a deduction for debts of the owner 750 of bank stock for taxation, 863 of taxes on bank shares should be at their actual value 725 Assets of an insolvent bank under legislative action .... 764 PARAGRAPH. Attachment, injunction or exe- cution against a National Bank 834-836 issued against an insolvent N. B. is invalid 740 Authority for claiming from state on N. B 730 of agent to receive pay- ment by acceptance of a bill, 920 Bank bills are a good tender . . 787 charter is not taxable as a franchise ...'... 755, 756 involved. Course of action when 865, 866 may sue to recover tax il- legally assessed 874 stock not affected by con- fiscation acts ' 790 Banking corporation cannot sub- scribe for the stock of a rail- way 738 Bill accepted in the words " Ac- cepted, payable after my ad- vances are paid " . . . . 905 drawn in one state upon a party in another 922 of exchange drawn for the accommodation of the payees and accepted by drawees for same purpose .... 945, 946 of exchange locked up for two years 938 of exchange must be pay- able at all events, not de- pendent on any contingency, requesting amount named 948 941 to be paid to himself or order, Bonds deposited with bank with knowledge of directors . . . 714 Building erected by a bank on leased land is real property for purposes of taxation . . 845 Cannot lend money on its own stock 698, 699 Cashier cannot bind a bank as an accommodation indorser . . 746 Cashier's authority to borrow money 743 Charter powers in extension . . 754 Check drawer undertakes that the drawee will be found at the place described . . . 924 is a bill of exchange within the statute 811 on one bank paid to an- other in a distant town . . . 876 Collections must be attended promptly 786 Commodation bill accept at request of third party, who agrees to share any loss 957 532 INDEX TO CASES. PARAGRAPH. Comptroller's declaration of individ- ual liability of stockholders is conclusive 727, 728 Conditional acceptance of a bill of exchange makes a new con- tract between payee and ac- ceptor 905 Corporation, like a natural person, may appear voluntarily by at- torney 753 Court of one State will not enforce a penalty imposed by another State 693 Currency required in the payment of a bill of exchange . . . 939 Damages on draft drawn and in- dorsed in England payable abroad being dishonored . . 955 . on non-payment of foreign bill of exchange 940 Dealing in stocks not expressly pro- hibited 783, 784 with a corporation in mat- ters not falling within the pur- view of its powers . . . 890-892 Demand for payment on third day of grace, with protest and notification 910 Deposit in name of wife .... 8*10 Depositors' claims in a N. B. at sus- pension are, when proved as judgments 726 Difference between acceptances of the purchaser and those of a third person 921 Directors violate or knowingly per- mit any of its officers, agents or servants to violate . . . 704 Discounting a note before its maturity is not chargeable with knowledge of illegality . . . 877 Discount in violation of statutes . 805 " signifies the act of buying bill of exchange or note for less than their face .... 873 Dissolution of a partnership with an individual banker, without notice of dissolution . . 894-898 Draft drawn and dated in one State and payable in another . . . 965 i drawn in favor of payee on a certain fund arising from sale of property 953 . drawn for Jthe price of goods sold and delivered is equivalent to demand . . . 964 . in payment of a note is only so when the draft is paid, 837, 838 Drafts must not be made payable out of a particular fund, or performance of any act . . 948 PARAGRAPH, Drafts on a company signed by its agent 944 Drawer of check bound to pay draft at the place named . . 924 Drawn by one depositor and credited to another of the same bank is discredited .... 1101 Duress is not chargeable against a person who insists on his legal rights 912". Embezzlements by bank officials, 706, 707 Excess of limit of a loan no bar . 800 Expiration of charter is not a pre- ventative of reasonable action, 765 Extent of N. B. from State legisla- tion 717,718 Evidence that the holder of a bill of exchange had notice . . 917" Failure to stamp foreign bill and a delay of a year 947 Fixing particular date for annual elections 780 1 Forged check, paid by the bank . 806 Forgeries not discovered until too late 806 Former adjudication as to one not a party to the action . . . 752- Freight charges based upon gross weight as distinguished from net weight 911 General indorsement of bills is prima facie evidence of prop- erty in indorsee 904- Guarantees of a certificaton of a check 742: Habitually receiving special de- posits to be kept for mere ac- commodation 761 Half of a bank note sent in pay- ment other half to follow . . 902 Have no lien on stock of stock- holders for unpaid balances, 700-702" Having paid a check on forged in- dorsement 817-820 Ignorance of directors as to trans- actions in their bank affairs is not a defence .... 839, 840' Illegal cancellation of an official bond 745 " Individual banker," prohibited by statutes, does not apply to private banker .... 841-844 Indorsement by a member of a firm in its name unknown to his partners 821 on note by makers . . . 821 Indorser of a bill right to notice whether the drawer have or have no effects 942 of a promissory note is a principal debtor 968 INDEX TO CASES. 533 PARAGRAPH. Intention to assign a fund in the hands of another upon suffi- cient consideration . . . 906-908 Interest allowed by laws of the State in which N. B. is located may be taken 690 *' I take notice of the above " writ- ten and signed on an un- negotiable bill of exchange, 814, 815 Jurisdiction over an action ex con- tractu brought by a citizen of the State against N. B. of an- other State 827-829 Knowledge acquired, not as an officer of a bank though he is a director thereof .... -, individually, of an officer of a bank Liability of a bank upon a certificate of deposit commences only on demand of payment . . . of an acceptor who tears the bill in two parts with the intention of destroying it . . ^ of bank stockholders being secondary and the bank primary debtor ^ of a partner is not changed by the fact that the depositor did not know he was a part- ner of stockholder arises . . . of stockholders as to assess- 821 821 898 958 865 895 799 ments for debts of a failed N. B 712 Limitation of tax rate on bank stock does not apply to an overvaluation 747 Married woman living in one State and owning a bank of another State 809 Money collected by one bank for another placed to its ordinary funds 766 held in trust for the benefit of the owners thereof . . 801-804 for a check placed on the counter and payee having taken it up, payment is pre- vented 875 paid to a cashier for use of the bank misapplied by him . 867 National Banking Act is an enu- meration of the general and not the incidental powers . . 847, 848 National bank has corporate power to exchange registered for non- registered bonds 880 N. B. has no power to loan its credit . 7C2 PARAGRAPH. N. B. is liable to be sued in any court 711 is not responsible for its notes stolen before they are signed 778 may take rate of interest allowed by the State to State banks of issue 777 stock may be taxed irre- spective of fact that the capital is invested in U. S. bonds . . 748 No defence to set up that debt ex- ceeded one-tenth of bank's capital 737 Note indorsed for accommodation of the makers 761 purchased at less than its face 822-825 Notes exchanged to pay others dis- counted at a greater rate of interest 829-836 Not permitted to offer or receive U. S. or N. B. notes as security on loans 710 No value or consideration for ac- ceptance 952 Omission to exact security for moneys lent 719 Oral promise to answer for the debt of another 963 Order directing payee to pay on ac- count " as per contract " . . 959 Paper drawn to a person by name, with addijion of cashier, nam- ing no bank 767 Payer of forged checks must lose the sum paid thereon . . . 807 Payment made by the acceptance of a bill 921 of dividends determined by the laws of the place where bank is located 808 Payments, conditional and inchoate, are revocable 902 Penalties imposed by Banking Act upon N. B. for taking usury . 691 Possession of a draft is presumptive evidence of ownership . . . 950 Preference of savings bank as cred- itors of an insolvent bank over other depositors 879 President allowing debtor bank to withdraw his deposit with- out paying his debt .... 759 of a bank loaned money of the bank to an irresponsible party 881-885 of a bank must act within the scope of his authority . . 872 of a N. B. paying for stock 534 INDEX TO CASES. PARAGRAPH. in his bank with his notes, etc., 871,872 Prior equities of antecendent par- ties to negotiable paper . . 936 Private banker taxed on average deposits 870 Prohibited from taking real estate mortgage, except for prior in- debtedness 713 Promise to accept a future bill of exchange for money to be ad- vanced thereon 956 Proof of notice of dissolution in newspaper, in the place where the bank was located . . . 897 . that a person is clerk for another does not establish his right to receive payments . . 887 Provision in articles of association and in by-laws given lien on its stock 775,776 Purchase, hold and convey real es- tate . . 779 Receiving special deposits is simply incidental to the business of banking 846 Redemption of notes stolen before they are signed 778 Relations of a bank with its cashier are analogous to those of prin- cipal and agent 739 Remittitur by the bank of a judg- ment on a bill against A. . . 909 Responsibility for loans for " legiti- mate business purposes " . . 796 for payment of a specified sum 791-793 Retention of a bill without a de- mand for a return . . . 961-963 Rights and powers of National Banks 789 of parties in a draft are governed by the laws where payable 925-927 Right to " reexchange " is the measure of damages . . . 909 Rulings of the Federal courts . 784, 785 Saving's institutions (of Kansas) as purchasers of notes . . 868, 869 Sending a collection to a distant bank does not constitute that bank its agent 838 Shares are to be divided into $100 each 687 in N. B. taxable by states . 816 " Special Deposits " refused on de- mand . 857-861 indorsement shows no con- sideration had been paid . 903, 904 State bank cannot enforce against PARAGRAPH, an executory contract not au- thorized by its charter . . . 749> State Constitution (Kansas), ap- plies to banks of issue . . . 864 Statute of limitation begins to run on deposits from time of refusal to pay 820" Stock certificates and stock ledger of a bank, shows who are stockholders 720- held in pledge, remaining on the books in name of pledgee 878 Stockholders respectfully bound for all the debts 788 Stockholder's right to sue a national bank 866 Stock of N. B. may be taxed at an amount above their par value, 969- Stolen bonds from a bank when they were on deposit . . . 888 Subscribing for or in accepting stock of a bank, is an assent of be- coming security 723 Suits against N. B. may be brought in U. S. or state courts, ex- cept 708,709 Term " special deposits " applies to 849-861 Title deeds given to secure a debt which having been paid, can- not be held for new debt . . 757 Transfer, fraudulently, of trust funds to the individual account of the trustee 900 1 Trustees appointing an agent to collect 794, 795 Universal practice of banks . . . 815 Usury laws of states not applicable to national banks 692 Verbal promise by a bank there- for to pay a check .... 812 Violation proceedings cannot be taken in state courts against N. B 70S Voluntary liquidation does not pre- vent bank suing and being sued 760 Warranty or representation on the part of the vendor of a bill in hands of indorser . . . 933-935 When a bank may take mortgages to secure anticipated liabilities, 715 acceptances are governed by the laws of the state in which they are drawn . . . 943- a check is not the contract between the parties . . 813, 814 a corporation is sufficiently organized 893- INDEX TO CASES. 535 PARAGRAPH. When a receiver may be ap- pointed 696, 697 authority of a cashier to compromise a claim will be presumed 729 drawers and acceptors of a draft are not co-securities . 945, S46 Where a bank charter is forfeited, on quo warranto. Surplus as- sets belong to stockholders, 770, 771 a bill of exchange is paid to one who holds it in good faith 928,929 a presentment of a bill is not recognized 772774 drafts are accepted in ad- vance 937 N. B. may be sued ... 769 . no rate of interest is fixed by state laws seven per cent. may be taken in advance . . 690 parol evidence is inadmis- sible as to contract between drawer and drawee of a draft, 954 proceeds of consignments must be held to pay accept- ances - 937 the party who should accept a bill destroys or refuses to re- turn it . , 960, 961 LIENS, Page 275. Cannot transfer lien to a stranger without also assigning the debt, Creditor may release a lien on claiming an interest or a junior lien Equitable lien on real estate is waived where vendor takes a note of third person .... Exchanging one form of security for another for the same debt, Execution creditor takes with notice property Holder of a debt secured by a lien, Judgment docketed, but not prop- erly indexed entered on an assessment note , Lien a right to have satisfaction for a debt and of property . is neither property nor a debt on personal property secured by a levy which has been prevented by his own act Policy of law is against upholding secret liens Promise of owner, accepted by workman cuts off the lien . 1990 1990 1993 1991 1998 1990 1995 1992 1989 1989 1997 1996 1999 1994 PARAGRAPH. What is not a judgment that can be enforced against any property of insurer 1992 When no other lien can intervene, 1991 Where a reservation of a lien is of no effect 1997 Workman under, restrained from filing his claim 1994 LIMITATIONS OF ACTIONS, Page 274. Action based upon a charge of fraudy 2000 Judgment other than for a sum of money . . 2000 Limiting time for commencing ac- tion to procure a judgment . . 2000 LOANS, Page 274. Account current rendered exhibit- ing details 2001 Entries in the books, where con- tinued from year to year . . 2001 Loan by a non-trader to a trader . 2001 Record account current was accom- panied by a letter .... 2001 MARKET PRICE, Page 275. Market of a marketable commodity, 2002 Price determined by offers to sell, made by dealers in the ordin- ary course of business . . . 2002 Statements of dealers in answer to question as to price .... 2002 MARRIED WOMEN, Page 275. Although she carries on no business and has no separate estate loses real estate ..... 2023-2027 Answer of a married woman to an action by the indorser of a note, etc 2004 Any mistake or misunderstanding between parties at a judicial sale 2019 At common law, the note of a mar- ried woman is void .... 2008 Case of a purchase by a wife during coverture 2010 Clerical error in entering a consent decree 2017 Consent of parties to a correction of clerical errors ...... 2017 Constitution and statute of this State (Florida) make no change . . 2008 Contract implied by law, or inferred from circumstances .... 2024 Deposit paid, by order of court, to a judgment creditor of her husband 2027 Holder of a mortgage given by a 536 INDEX TO CASES. PARAGRAPH. wife with her husband's au- thority ........ 2064 Husband may, acting in his own right, convey to his wife . . 2011 Implied authority from a husband, 2003 Indorsement by a married woman of a note for husband's accom- modation 2004 Married woman cannot bind her- self by contract 2005 May give a mortgage on her property to secure payment by her husband 2013 purchase property on credit as if she was feme sole . . . 2021 Mistake in facts will always be remedied by the courts . . 2016 Money lent to a married woman . 2009 paid under a mutual mis- take of law 2018 Note given by married woman and her husband for property purchased by her as sole trader 2006 taken in name of wife in- dorsed by her and gave in payment of her husband's debt 2003 Paying for a purchase with her own separate funds 2010 Personal judgment against married woman 2008 Plaintiff, in his own name, de- posited a certain sum with defendant 2027 Presumption is that husband fur- nished the money paid away by his wife 2010 Promise made by a married woman to pay for groceries out of her own earnings 2005 Receipt of a woman before taking out letters of administration . 2020 Sale of mortgage, by married wo- man, of her separate property, for payment of husband's debts 2007 Separate estate is presumed, in absence of proof to the con- trary 2012 Transfer of property, by husband to wife in payment of money loaned him by her .... 2014 "Wife left in charge of farm and to manage the same .... 2003 may do with her own prop- erty as she will 2011 rnay make conveyances di- rectly to her husband . . . 2011 separated in property is liable for household expenses, 2064 PARAGRAPH. Who contracts a debt as agent for her husband 2022 is legal owner of personality may sue at law one who takes to his own use 2028 MARSHALLING SECURITIES, Page 278. Collateral security for money ad- vanced upon mortgages Creditor having two funds out of which he can satisfy his claim, Term " heirs " refers to relatives by blood, and does not include widows When securities should not be mar- shalled Where one creditor has securities upon two funds, another, having a security on one of them Word " heirs " when applied to the succession of personal es- tate, means next of kin . MISTAKES, Page 279. Avoiding an agreement because of a mistake, it must be of fact, not of law Burden of proof rests upon party resisting repayment .... Claiming damages for a conversion of property Consummation of the transaction, in ignorance of the mistake Court will not reform an instru- ment on the ground alone, that one of the parties acted fraud- ulently Estoppel applies, not on the ground of wilful fraud in making the representation Holder, under an honest mistake reported that bill was taken up . . Ignorance of a fact extrinsic and not essential to a contract . Inadvertent mistake, made by a bankrupt in stating the amount of a debt Indorser upon receiving notice of protest, sent money to take up the bill Jurisdiction of a court of record to set aside or reform a con- tract Lands omitted in a deed by mis- take Making a misstatement in good faith 2029 2029 2031 2030 2030 2031 2037 2032 2048 2041 2046 2034 2034 2041 2038 2034 2041 2039 2034 INDEX TO CASES. 537 PARAGRAPH. Mistake as to legal rights is not a ground for equitable relief . . 2040 is a sufficient ground upon which to decree the reform of a deed 2033 to warrant a court of equity in reforming a written con- tract 2049 which is not calculated to mislead 2044 Money paid under a mistake of a material fact 2032 Mutual mistake must be proved and that it was mutual must be clear 2046 Parol evidence admitted to show mistake 2042 Party misnamed in the body of a lease signs it in his true name 2036 receiving money paid him in a mistake, returning it . . 2032 Presumption that a customer's note, sent to bank for collection was not paid 2043 Security on a note supposed the maker was a partnership . . 2045 Settling the wrong contract with plaintiffs 2035 When the holder of a bill could not recover from the indorser, 2034 MONEY COLLECTED BY AN OFFI- CER, Page 281. Cannot apply money collected un- der one execution to payment of other collections .... 2050 Money collected by an officer on legal process 2050 Where both executions are in the officer's hands for collection at same time 2050 While money remains in officer's hands 2050 MONEY HAD AND RECEIVED, Page 281. Attorney received money belonging to plaintiff, which he wrong- fully appropriated .... 2051 Maintaining an action for money received 2051 Money having been received in good faith 2052 Obtaining money on a forged mort- gage 2052 When defendant has received money belonging to plaintiff . 2051 fraud and wrong caused plaintiff to pay money to others . , 2051 MORTGAGES, Page 281. PARAGRAPH. Action on a warranty without re- turn of property by purchaser, 2168 to recover upon certain notes, and to foreclose a real estate mortgage 2105 Actual notice is as effectual as the constructive notice of record . 2093 Administrator borrowing money upon a mortgage of real estate of the decedent 2140 Advances of money by one person to another with which to pur- chase title to land .... 2063 Advice to transfer real estate under a promise to reconvey it to the conveyor 2097 Agreement of partners to continue business of firm after death of either partner . . . 2161-2167 that a mortgage, and real estate upon which it was secured, should be held for antecedent debt 2124 Assignee of mortgage given to secure payment of a note . . 2134 of mortgage is not affected by a collateral agreement between mortgagor and mortgagee . . 2102 of mortgage takes it subject to all defences 2082 Assignment duly recorded, by holder of mortgage containing power of attorney of sale .... 2084 of mortgage accepted upon faith of statement by mort- gagor 2145 of mortgage, to insurance department, as a part of the deposit 2144 under seal of a bond and mortgage, which contained guaranty of payment . . . 2147 Assumption of a mortgage con- tained in a deed 2080 Bank declining a discount, should return the note offered -it, 2094, 2095 Bill of sale conveying personal property to creditor as security, property remaining in posses- sion of debtor 2120 of sale of a vessel, like a deed absolute on its face .... 2059 Bona fide assignee of mortgage rights against original owner, 2088 holders of paper given for valid reasons 2157 Bondholder obtaining judgment on one bond and levying on fix- tures , 2068 538 INDEX TO CASES. PARAGRAPH. Case of a latent equity arising out . of an implied trust .... 2096 Clause in a mortgage, fixing fees of the creditor's attorney . . 2106 " Continuing security and indem- nity " mortgages; to the mortga- gees 2160 Contract for the purchase, by one party and the sale by the other of certain premises .... 2152 Conveyance made, not as a sale, but as a security, is simply a mort- gage 2097 to a trustee, absolute on face, 2074 Debtor executed a conveyance to secure an indebtedness, pro- viding for a reconveyance . . 2103 Deed of married woman without certificate of privy acknowledg- ment 2130 Defence to an action of ejectment, 2072 Descriptive signs satisfactorily ascer- tained in a conveyance of land, which designates the thing meant to be granted . . . 2114 Difference between covenant to secure against liability and one to indemnify against damages, 2165 Entitling mortgagor to maintain an action to extinguish the lien of his mortgage ...... 2148 Equitable mortgage may arise from non-payment of purchase money 2061 Executed a mortgage as security for a note 2053 First of two mortgages, on same land being foreclosed . . . 2117 Fixtures on premises are held under mortgage on land containing them 2111 Grantee executed, at same time and place, two mortgages on same lands 2067 of a mortgagor of land which was created by fraud on part of mortgagee .... 2083 of the remainder of a mort- gage 2079 Holder of a mortgage, given by a wife with her husband's au- thority . 2064 Holding by assignment, duly re- corded, a mortgage and note indorsed in blank .... 2085 Indorsed a note secured by mort- gage to C. and assigned the mortgage to D 2053 Instrument of conveyance that on its face purports to secure a payment 2065 PARAGRAPH. Instrument purporting to mortgage a crop, the seed of which has not yet been sown .... 2159 Joint note payable in one year. On the face of the note each signer appeared as principal . . . 2098 Lessee of land became the owner of an undivided portion of it, executed a mortgage of this portion 2090 Lessee's right of possession against all persons except the mortgagee, 2090 1 Lien or mortgage, securing a nego- tiable note 2069 May make a valid mortgage for payment of money without de- scribing writing given for the debt 2107 Mere inadequacy of price is not sufficient to invalidate sale of real estate 2125 Misdescription in a mortgage, made by a scrivener, when the prem- ises may be identified . . . 2129 Mortgage containing a promise to pay the note, to secure which mortgage is given .... 2113 , duly recorded, given to se- cure future advances or indorse- ments 2071 executed by a tenant in common 2138 given for preexisting debt, 2112 is not barred until the note is 2092 on lands, with chattel mort- gage covering fixtures thereon, 2068 of real estate, with power of sale 2142 , primarily without any con-. sideration, given to secure cer- tain notes in hands of future holder 2132 registered first, does not ac- quire priority over purchase money 2067 Mortgaged land, on which was a grist mill, in which there were certain fixtures 2111 Mortgagee after condition broken, 2054 making an absolute assign- ment of a mortgage to her agent, 2057 of chattels, in absence of agreement in mortgage, pur- chases the property at mortgage sale 2141 of real estate, before fore- closure of his lien, sues one for removing boiler from premises, 2110 who transfers part of a mort- gage debt to another . . . 2133 INDEX TO CASES. 539 PARAGRAPH. Mortgagees expressly authorized to sell for cash or on credit . . 2155 Mortgagee's power to sell only con- tinues as long as the debt ex- ists 2058 sale relates back to the date of the mortgage 2066 Mortgagor afterward conveyed equity of redemption . . . 2125 . of real estate has right to possession of mortgaged prop- erty, etc 2142 Must clearly indicate the creation of a lien, and specify the debt secured thereby 2119 Necessity of registration, in order to give a priority of title . . 2109 No resistance to taking possession of premises mortgaged . . . 2055 Note secured by a mortgage, the latter passes as an incident to the note 2069 Older equities against mortgage given to secure a preexisting debt 2139 Omission of surnames of some of the parties mentioned in a mortgage 2112 Omitting to name State, county and township in describing premises in a mortgage 2114 Parol evidence in regard to a se- curity for a debt 2059 evidence to show that no debt existed 2056 Party coming into a court of equity for relief must himself do equity, 2149 Payment for materials in part cash and part in a mortgage . . 2094 to the day of sale is allowed to mortgagor, or the owner of the equity of redemption . . 2128 Personal obligation on part of grantee to pay mortgage . . 2073 Personal property mortgagor has no such interest therein as can be levied upon and sold . . . 2126 Possession of real estate by a mort- gagee, acquired by force or fraud 2072 Provision in mortgage allowing mortgagor shall have posses- sion, without paying rent . . 2131 Purchased an estate with plaintiff's money and had it conveyed to his wife 2115 Purchaser from the mortgagor may recover the land mortgaged . 2104 Purchaser of a portion of mortgaged premises 2101 Purchaser of non-negotiable de- PARAGRAPH. mands from others than orig- inal owner of them .... 2100- Purchaser of portion of mortgaged premises agrees to pay, as part of the purchase money, the mortgage ' 2076-207 Purpose indicated is to divert the grantor of title, and to vest title in grantee 2119* Purpose of enabling B. to raise money for him, made a prom- issory note and mortgage . . 2087 Real estate mortgages are only per- sonal property, assessable for taxation where found . . . 2158 Recorded title takes precedent over an unrecorded deed of same land 2109 Redemption of property which has been sold under a mortgage . 2156 Registry of a judgment against a party operates as a legal mort- gage 2137 Relief from payment of interest and costs after tender to pay mortgage 2150 Right of entry against heirs of the mortgagor 2056 Rights of mortgagor of personal property, after condition brok- en 2121 Sale by a mortgagee has same effect as a sale by mortgaging debtor, 2066 Sale of one of a series of notes, se- cured by mortgage .... 2060 Securing future advances or indorse- ments by mortgage .... 2070 Senior mortgagee foreclosure with- out making junior mortgagee a party to his action .... 2062 Several notes secured by mortgage, the notes having been passed to several holders .... 2118 Stipulation in a mortgage for pay- ment of reasonable attorney fees 2135 Subsequent revival of note and mortgage by a part payment . 2092 Suit in equity for redeeming unoc- cupied and uninclosed city lots from a mortgage . ... 2146 Taking possesaon of mortgaged premises . . . . . 2054, 2055 possession of mortgaged premises in absence of owner, 2055 Tender of amount due upon a mort- gage after condition broken . 2127 of payment of a mortgage and a refusal to accept . . . 2148 of the amount of a debt af- 540 INDEX TO CASES. PARAGRAPH. ter the law day has passed, unaccepted .... 2122, 2123 Third mortgage of land, which is subject to a fourth mortgage, sells 2086 person notice of a mortgage conveyed to him by the in- scription of the mortgage . . 2099 Unauthorized cancellation of a mortgage by the recorder of mortgages 2089-2116 Uncertainty or vagueness of a mort- gage 2075 Unrecorded mortgage valid as against heirs of mortgagor . 2143 Value of a note at the time of trial and not the value at the time of the assignment .... 2153 When a buyer must " abide by the case of the person from whom he buys " 2100 mortgaged property is sold under a power 2154 - mortgagee disposes of prop- erty after tender of payment has been made 2123 Whether acknowledged or not, a mortgage is binding between the parties 2136 NEGLIGENCE, Page 298. Acceptor of a deed conveying land is bound to examine it care- fully 2174 Acknowledging and signing a deed supposing it was a lease . . 2169 Assignee of shares of stock, who leaves certificate with assign- ments recorded, with the as- signor 2173 Employment of a common carrier, 2175 First one of two innocent parties suffering a loss, must fall upon first one in fault 2172 If one of two persons must suffer a loss 2169 Mere preponderance of negligence on part of defendant . . . 2170 Negligence of the plaintiff must be slight when compared with that of the defendant . . . 2170 Note lost by one party and found by another who passes it to an innocent holder .... 2172 Receiver of N. B. may sue director for loss of bank caused by their negligence . . . 2176-2180 Recovery of damages for an injury depends nearly as much upon the care of the plaintiff as upon defendant . , 2171 PARAGRAPH. Stockholder may sue directors for neglect and inattention to their duties 2177 Whatever will validate mortgage between parties will validate it as to third parties . . . 2093 When a debt is extinguished, which is secured by a mortgage . . 2058 a mortgagee has, upon de- mand, rendered a true account of the amount due upon mort- gage 2108 Where note and mortgage are once barred 2092 party cannot, by any proper inquiry, have learned of the latent equity 2096 Whether advances or indorsements were optional or obligatory . 2071 Wife, separated in property, is lia- ble for her proportion of the household expenses .... 2064 Withholding mortgage from record, 2091 NOTARY PUBLIC, Page 299. Affidavit executed before notary public is not an affidavit in Texas 2181 Any one injured by a notary public as has a right of action against his sureties 2182 Statutes do not confeV on notaries public a general power to ad- minister oaths 2181 Sureties on official bond of a notary public are liable for any loss or damage caused by his affix- ing his notarial paraph to note he knew to be forged . . . 2182 NON-RESIDENT, Page 299. Foreign creditor rightfully in court of this state (New York) pur- suing a remedy, has the same priority of lien as a citizen . 2183 NOTICE, Page 300. Knowledge of the circumstances regarding the issue of notes . 2184 Notice to cashier of a bank lending on trust stocks, that they are held in trust 2185 Releasing a surety, under the statutes 2186 Satisfactory proof must be made, or notice in writing, etc., to release a surety 2186 Where a weekly publication of a notice is required ... .2187 INDEX TO CASES. 541 PARAGRAPH. Notice that an offer is accepted is required 2188 OVERDUE COUPONS, Page 301. Bona fide purchaser of bonds from an agent may retain them as his own ' . . . 2190 Bonds purchased from one who holds them merely as security for a loan 2189 . sold by the lender for a larger amount than he loaned upon them 2190 Corporate bonds pledge as security for a loan 2189 Honest purchaser from an agent can give good title to another, 2191 Question of good faith may be de- termined by the amount paid for the bonds 2189 Retaining bonds as indemnity for the amount paid for them . . 2191 OWELTY, Page 301. When required to equalize partition between two tenants in com- mon . . 2192 Where money should be paid to mortgagee and credited on mortgage note 2192 PAROL EVIDENCE, Page 302. Parol evidence as to written con- tracts . , 2193 PARTNERSHIP, Page 302. Acceptance by one partner for sepa- rate debt, not in firm name Accounts between partners . . . Action at law maintained by one partner against another, etc. . brought by one member of a firm to have an account- ing. Acts done within the scope of the partnership 4 After dissolution of firm, members thereof cannot create obliga- tions, etc dissolution of firm, one partner has no implied author- ity, etc Agreement continuing partnership after death of a member . . Assignment of firm's assets for benefit of creditors .... Attachment of firm property for a firm debt prevails over a prior one for a separate debt . . . 2276 2241 2232 2257 2199 2199 2206 2260 2249 2238 PARAGRAPH. Community of profit and loss is the test of a partnership . . . 2236 Contracts made by one partner on behalf of the firm .... 2227 Creditor of a firm is at liberty to prove the fact of the partner- ship, etc 2282 of former firm sues its indi- vidual members 2255 Creditors of a corporation selected three of their members, who were elected directors of com- pany 226& Debtor, being a member of an in- solvent firm, conveyed his separate estate to a separate creditor 2236 Declaration of one partner that A. was a member of the firm . . 2197 Execution creditor of an individ- ual member of a firm, caused firm property to be levied upon 2230, 2231 Extent of power of a partner to bind his firm is a question of law in commercial, and a question of fact 2215- Feigned issue to try the right to certain cattle 2268 Financial partner paying notes of firm by exchanging therefor notes of third person . . . 2207 General creditors of a firm have no lien on its assets any more than ordinary creditors . . . 2248- Holder of a claim against a firm legal right to establish his claim . 2198 Incoming partner can only be made liable by agreement for prior debts .... 2202, 2203 Individual members of a firm may execute a valid note . . . 2258 In partnership suits statute of limi- tations is not available, unless six years have elapsed . . . 2274 Insolvent member of firm devoting his individual property to pay- ment of firm's debts . . . . 2208 Jury were warranted in finding that a partnership existed . . 2219 Legal representative of deceased person is a party, he may testify to any facts .... 2261 Member of a dissolved firm, sold all his interest therein to his partner 2222- of firm of real estate bro- kers receive money with which to pay land for the party ad- vancing the money .... of firm residing in one 222O 542 INDEX TO CASES. PARAGRAPH. state not served and not ap- pearing 2205 Member of a partnership cannot bind his partner by a note, made after dissolution . . . 2196 Mining partnership is a non-com- mercial partnership . . . Money borrowed by members of old firm after new member was admitted . No distinction between partnership and individual claims . . . Non-resident firm make an arrange- ment with two resident firms, etc Note by a partnership to one of its members for money borrowed, executed in name of a cer- tain firm in liquidation . . in renewal of another made by same partner who signed the last Not necessary that an incoming partner should do something to escape liability One cannot be fixed with liabil- ity as a partner on the ground that he has been held out as one ... partner binding the firm by affixing his name and seal, partner cannot apply claim of firm to payment of his own debt, without consent . . . partner borrows money, representing it is for the use of the firm . partner in a firm has power to bind the others by a note given in usual course of busi- ness Only in equity that separate credi- tors of a partner are entitled to preference over firm creditors . Ordinary firm cannot be held liable for indebtedness of one of its members, etc Partner advancing money to the firm partner died after retiring from firm, his administrator sued firm for claim due estate, has no implied power to purchase land - in a non-commercial firm does not generally possess power to bind firm .... indorsing a note in name of his firm unknown to it . . , in sound health, is made 2217 2212 2198 2279 2195 2252 2262 2233 2239 2204 2234 2245 2263 2273 2267 2242 2280 2217 2216 2283 PARAGRAPH. sole agent of the firm by an- other, who is not 2218 Partner signed his individual name before signing that of the firm, 2264 surviving a firm may as- sign a note payable to the firm Partners cannot, during the exist- ence of firm, claim individual exemption in firm's property . have no implied authority 2194 2269 to confess judgment for each other 2225 liable for goods furnished 2281 the firm, although vendor was ignorant of its existence . . Partnership articles proving that the special partner should share of the losses 2201 is dissolved by the death of any of its members .... 2200 must be proved when a firm is sued 2229 notes are a joint, and not a joint and several obligation . 2199 note taken in payment for goods sold 2197 Party seeking exemption from lia- bility of a general partner . . 2256 Person permitting himself to be held out as a partner . . . 2240 who has no interest in a firm beyond that of receiving a share of profits .... 2250 Power of one partner to bind his co- partner rests alone upon usage of merchants .... 2214-2216 Property of insolvent firm is ordered to be sold to pay firm debts . 2278 Real estate bought with firm funds for firm purposes .... 2277 estate held by firm as part- ner assets 2246 Relations existing in joint owner- ship only is not a partnership, Retiring partner paid debts of firm after withdrawing from it . Right of partner to sign firm name to a contract of indemnity in favor of third person . . . Sale by a partner, a payment of his own debt, of goods of the firm, Service upon one of the firm, after dissolution 2259 Signers of a merely joint note were, the date of the note, commer- cial partners 2244 Situation of all partners that author- ized individual creditors to sue out attachments against them, 2260 2270 2226 2211 2235 INDEX TO CASES. 543 PARAGRAPH. Surviving partner entitled to sue in his representative capacity . 2253 Three persons form a partnership agreeing to bear the losses and share profits 2209 Two members of old firm cannot bind third partner, who with them, created new firm . . 2213 or more parties engage in a business venture 2243 persons composing a part- nership make a false return to assessor of revenue . . 2223, 2224 Question as to partnership existing under an agreement between A. and B 2221 Violation of good faith for any partner to stipulate clandestine- ly with third person, etc. . . 2228 When a loan is made by two mem- bers of a firm 2254 a partner of a firm may transfer his interest in firm to pay his individual debts . . 2272 a party fraudulently misap- propriates the money of his firm 2275 money is loaned for benefit of business to be refunded, without regard to profits . . 2251 PAYABLE AND PAYMENT, Page 314. Action brought to establish payment of a note 2309 lies on a note payable by installments as soon as first day of payment is passed . . . 2314 Application of money received by creditor from his debtor to payment of special claims . . 2288 Applying proceeds to payment of other debts 2305 Bank check given and accepted as payment of balance found due, 2298 Bill paid to third party which made out on a billhead, on which was printed " All moneys to be paid to treasurer "... 2334 Bonus is not a gift or gratuity, but a sum paid for services, etc. . 2318 Cannot recover money because it was paid in ignorance of the law 2302 Construed payment of a mortgage, 2289 Creditor who holds notes or other obligations for the payment of money assigned to him . . 2290 Defendant was indebted to plain- tiff, first as a member of a firm, afterwards individually . . 2333 PARAGRAPH. Did not amount to a payment of the note 2292 Draft of third party received for preexisting debt 2296 Giving of a note of third person is evidence of payment of a pre- existing debt ...... 2308 Holder of notes accepts of maker policies of insurance covering property destroyed by fire . . 2310 Indorsement of partial payment on a note when the part of pay- ment is controverted by payor, 2313 Legal presumption of payment of a bond given for the payment of money ........ 2328 Married woman joined her husband in a mortgage which was as- signed to a bank .... 2302 Money paid after date of note, uot indorsed thereon 2301 paid under mutual mistake for that which has no legal ex- istence or validity .... voluntarily paid in dis- 2306 charge of a claim or to buy off and quit a criminal prosecution, 2286 Note made in this State, payable in a bank but not located . . . 2284 Oral agreement to extend time of payment 2292 Owner of note secured with other debts by mortgage as consid- eration for extension . . . 2305 Partial payments applied when their sum equals or exceeds the in- terest 2299 payments made on debt past due Party with full knowledge of facts voluntarily pays money to sat- isfy a demand unjustly . . . Payee of a draft receiving a check for it which he neglects to pre- sent until next day .... Payment, by savings bank, of de- posit of trust fund .... made voluntarily on an un- founded demand of money made dependent 2322 2311 2285 2331 2319 on the performance of a con- dition 2327 of part of a debt before , 2304 due of part of debt without re- lease under seal to agent who full . receipts in to the sheriff of the redemp- tion money under foreclosure, Payments claimed as credits on a 2317 2295 2287 544 INDEX TO CASES. PARAGRAPH. debt, and not allowed when judgment was rendered . . 2323 Payments made by a debtor, without special instruction as to their imputation 2332 made voluntarily by mort- gagee of claims against the estate 2321 . that should be applied pro rata 2325 Person owing another several dis- tinct debts right of payments thereon 2216 Plaintiff held certain shares of min- ing stock belonging to de- ceased 2330 held several notes against deceased all but one being valid 2330 Plea of payment tried by a magis- trate . . 2329 Premium note of an insurance bro- ker, received by insurers in pay- ment of a policy 2326 Sale of goods upon a promise by purchaser to pay for them out of the avails of their sale . . 2315 Stipulation in note that no credit shall be allowed unless in- dorsed by payers 2291 Suit against six joint and several makers of a note .... 2325 Taking debtor's acceptance does not operate as payment . . 2324 note from a debtor or a note of a third party for a debt . 2297 Third person, who demands no subrogation, may tender to a creditor, etc 2307 United States is entitled to priority of payment out of effects of its bankrupt or insolvent debtors, 2335 Vendee of real estate contracts to pay purchase money in cash or cotton 2303 What is not a voluntary payment, . . 2293, 2294 When debts are of like nature, im- putation of payment, etc. . 2320 partial payments are made on a debt past due payment may be inferred by the jury from circumstances . the payer of money becomes 2300 2328 subrogated to the rights of the mortgagee 2312 Where a demand for return of money is necessary . . 2292-2294 property belonging to a firm is mortgaged to secure a note of firm . , 2312 PLEDGES, Page 321. PARAGRAPH, Acceptance by pledger of surplus arising from illegal sale of articles pledged 2379* Assignee of a note, held as collateral security for a debt due from assignor 2384,2385- Assignment merely of an expected surplus in property pledged to secure a usurious loan . . 239O Bailee of goods for safe keeping merely pledges them with in- tent to convert proceeds to his own use 2372 Bank knowing the note was not the property of the party offering it. ......... 2356 Bill of sale of goods, absolute in its terms, given to protect vendee against his liability as surety for vendor 2368 Borrowed of a bank money on call, depositing with it mining stocks as collateral, etc. . . 233T Collaterals which were sold and proceeds applied to the pay- ment of, afterwards advances in price 2337 Commercial correspondent ad- vances his own money for the purchase of property . . . 2346- Consignee who has made advances on cotton shipped to him, has a right of pledge on it . . . 2375 Defendant received money of plain- tiff to insure him for becoming bail for another 2362 Deposit of certain Canada railway bonds as security for a debt . 2367 of title deeds indicates an agreement to execute a legal mortgage 2367" of the U. S. " five-twenty " bonds for safe keeping with a bank, and its cashier pledges them 2382 Factor pledging goods of his prin- cipal for his own liabilities . 2369' Nothing less than proof of knowl- edge of facts that show want of authority of party transfer- ing note 2353= No valid pledge of a mortgage, or vendor's privilege by mere agreement of parties . . . 2383 One to whom note is pledged as collateral security for a debt, unless specially authorized . 2386 who lends money on pledge of stock held in trust . . . 2339> Party receives a pledge as security INDEX TO CASES. 645 PARAGRAPH. and suffers it to go back into possession of pledger . . . 2340 Personal property specially pledged for a particular loan .... 2387 Person holding property or security in pledge, occupies the rela- tion of trustee 2347 holding stock in a fiduciary capacity 2371 Pledge of commercial paper as col- lateral security 2347 ceases to be operative when its object is affected . . . 2363 for a particular loan, cannot be held by the pledgee for any other loan 2387, 2388 is the lien created by the 2341 2345 2381 delivery of personal property by owner to another . . 2350-2357 Pledgee can sell only, and for the purpose of applying proceeds to pay off debt ..... 2377 of a chattel may sell his in- terest in same, and owner can- not recover of purchaser . . -^ of mortgage bonds payable upon condition, like the pledge of commercial paper . . . . of scrip sells more than is necessary to satisfy his debt, and pays surplus to pledger . . of stock is entitled to the dividends accruing while he holds stock 2342 . sells property mortgaged to secure the note for less than the note calls for and imme- diately sells it for more . . who was surety on a note transferred the property to the payee to discharge the debt . Pledgee's right to purchase pledged collateral so as to acquire abso- lute title 2344 Pledgor, at the time of making the pledge, waives notice of sale . ' collecting dividends on stock pledged by him . . . of a chattel, after tender- ing the sum due, the pledgee takes no steps to recover pos- session 2348 of stock who in good faith takes a security, for his own benefit in name of an irre- sponsible trustee . . 2365 Possession by the pledgee is es- sential to a pledge . . 2349-2358 Property, on pledge, can only be applied as security through the process of sale 2347 35 2374 2376 2380 2343 PARAGRAPH. Right of pledgee to sell security in pledge with him, and apply proceeds to payment of loan . 2345 to sell pledge securities after pledger becomes a bank- rupt 2338 Sale of stock made with knowl- edge of forgery 2366 Stock being only transferable on books of the company, does not prevent its pledge as se- curity 2370 of corporation, pledged as collateral security, is trans- i ferred by pledgee .... 2336 Subsequent bankruptcy of the pledger of a negotiable instru- ment 2338 Thing pledged may be in the tem- porary possession of pledger as special bailer . . . 2359, 2360 To constitute a pledge, there must be a delivery and retention by the pledgee of the thing pledged 2340 What constitutes a valid pledge of securities, so far as third parties are concerned . . . 2361 When an accommodation bill has been pledged for less than its face 2363 one delivers chattels to an- other as indemnity for surety- ship 2373 pledge is divisible, pledgee can sell only no more than is necessary to satisfy debt, 2378-2381 pledgee of a mortgage note, in whose hands it has been placed to secure a debt due him 2374 Where bond and mortgage are as- signed as collateral for a loan with an agreement, etc. . . 2389 Without possession of a pledge, no privilege can exist against third persons .... 2358-2360 POSSESSION, Page 327. Deed for property owned by wife, from husband No length of constructive possession will ripen a defective title . . Note, bond, or bill possessed, unat- tended by circumstances, ought to excite suspicion .... Possession by a man or his tenant is notice of title of land under color of title, Prima facie evidence of owner- ship 2393 2392 2394 2391 2392 2394 646 INDEX TO CASES. POWER, Page 328. PARAGRAPH. Attorney who makes a surrender . 2399 Deed of conveyance executed in his own name by one having a special power of attorney . . 2398 Grantor having power to sell, and sells 2396 Power committed to two or more persons . . 2395 Special power of attorney . . . 2400 When party alleges that a deed executed by his attorney . . 2397 PREFERENCE, Page 328. Bond given by a debtor in failing circumstances, covering all his property 2402 Paying a particular creditor to the exclusion of others .... 2401 Sale of property by ,an insolvent debtor made in good faith . . 2401 PRESUMPTIONS, Page 329. Drawer of a draft is presumed to be solvent 2404 Letters, mailed to a person directed to him at his place of busi- ness 2409 Mortgagee in possession, no pre- sumption can arise from lapse of time . . , 2408 Mortgage presumed after lapse of twenty years 2407 No presumption of delivery in re- spect to forged instruments . 2405 Presumed that notaries of other states have no greater powers than those of this state . . . 2403 Purchaser having notice of facts upon an adverse claim de- pends 2406 Rules as to charging drawer, is presumed to prevail elsewhere as here 2404 Wife's separate and personal pos- session of specific articles of personal property .... 2410 PRINCIPAL AND AGENT, Page 329. Agent authorized to apply pro- ceeds of sales to payment of drafts so drawn, as they ma- ture 2424, 2425 . did deliver a policy giving a credit to insurer .... 2422 . employed to drive cattle with possession thereof . . . 2420 investing money for his principal exacts a bonus for himself, unknown to princi- pal 2419 PARAGRAPH. Agent used money belonging to his principal on his own ac- count . .' 2417 Agents, without express authority, assume to act for their principal, 2415 Agreeing to pay interest for time elapsed between time of agree- ing to loan and delivery of the money 2416 Facts which come to knowledge of agent while not engaged in business of agency .... 2421 Gratuity given an agent secretly to influence him to act in favor of giver 2412 Instrument, executed by agent, shows on its face names of contracting parties .... 2423 Insurance companies directs agent to deliver policies only upon full payment of premium . . 2422 Money left with agent for one who has negotiated with principal for it on loan 2416 One purchasing goods for another, contracts in his own name without disclosing his princi- pal 2413 Person employed to carry on an- other's business acts accord- ingly 2411 Principal is liable for acts of agent performed for the benefit of the principal 2419 Ratification by principal of his agent's acts without full knowl- edge of the facts existing . . 2418 Subsequent disclosure of the prin- cipal 2414 To clear agent from liability . . 2413 When the vendor supposes the buyer is acting as agent . 2413, 2414 Where no express command or privity is proven 2419 PRINCIPAL AND SURETY, Page 331. Agreement between holder and principal maker of a note that latter may retain sum due . . 2433 to forbear for a definite period is consideration, etc. . 2433 Bond executed in blank by H. and sureties to enable him to raise #30 2427 executed in blank, on a specific purpose 2427 signed on Sunday but dated to take effect on a week day . 2435 Bonds taken by an officer in the course of official duty . . . 2441 INDEX TO CASES. 547 PARAGRAPH. Cashier of a bank releasing a surety upon a note or bill belonging to his bank .... 2428-2431 , on inquiry by a surety who is an officer of the bank, that note upon which he is surety has been paid 2430 Death of a joint obligor, who was a mere surety 2439 Deed of trust, executed by principal debtor, as consideration for an extension of time .... 2436 .Firm becomes responsible for the payment of any sum not to ex- ceed, etc 2437 is surety, and one of its members is also member of the directors of the bank . . . 2431 Guaranty affected by death of guarantor 2438 Liability of a surety is limited to the express terms of the con- tract 2440 Mere indulgence by a creditor to the principal debtor .... 2452 Mortgage record takes rank before its own registry 2453 Privileged debts, first paid where the estate is insolvent . . . 2453 Proof that administrator's authority had become extinguished be- fore suit was brought . . . 2434 Question as to the liability of re- tiring partners of a firm for the payment of rent . . . 2440-2451 Receiver of an insolvent savings bank executed his bond with surety, and subsequently re- signed 2443 Release of principal debtor, against whom, with surety, a joint judgment has been obtained . 2432 Seizure of property under execution of a valid judgment . . . 2454 "Set-off by principal and surety owing to the insolvency of plaintiff 2440 Several original debtors contract with others for their assump- tion and payment of common debts 2444,2445 Sureties released by creditor ex- tending time 2437 Surety signed a bond upon con- dition that he was not . . . 2435 Surety's liability for waste com- mitted on premises by tenants, 2448 When real estate of the surety has been levied upon and sold at sheriffs sale . , 2426 PARAGRAPH. Where the engagement of a surety is for the future 2442 Vendor must record his sale to hold his privilege 2453 Vendor's privilege is only operative as to third persons from the moment of its registry . . . 2453 PROFITS, Page 335. Probable profits as a basis upon which to estimate damages Property purchased by a wife on credit of her separate estate, or of her earnings PROMISE, Page 336. Action on original promise to pay, Holders of a note demanded pay- ment of the indorser . . . Insufficient as a promise to pay . Man promising to see another harm- less should he become surety for third person Nature of promises made by credi- itors Oral promise to pay what the per- son to whom it is made may become liable for .... Promise made to a debtor for a valuable consideration, to pay his debt to a third person . When a promise to pay a debt of another antecedently con- tracted . 2455 2456 2458 2457 2457 2461 2459 2461 2459 2460 PROMISSORY NOTES, Page 336. Absence of proof to show when notes were transferred by the payee 2726 Acceptance of a forged mortgage from agent of the grantee of the land 2656 Accepted draft, which has been misappropriated in hands of bonafide holder 2703 Accommodation makers of a joint and several note pays and re- issues it 2479 made for payee, without re- striction as to its use . . . 2636 note signed at request of payee 2633 Acting under the advice of legal counsel 2721 Action against maker of a note by a bona fide indorsee, before due, and for value .... 2555 against one of the in- dorsers 2561 brought against one of sev- eral indorsers. , 2848 548 INDEX TO CASES PARAGRAPH. Action by a N. B. upon a note, one count of the answer al- leged that more than seven per cent, was taken 2908 by payee of a joint and sev- eral note, payable on demand, 2493 on a note, alleged to have been bought by the defendant for the plaintiff's intestate. . 2868 . on a note by a holder who received it after it was due . . 2789 on a note having two years to run, the maker having be- come insolvent and left his domicile 2844 on a note signed by a mar- ried woman separate as to property, without authority of husband 2803 on a note when the defence is usury 2673 upon an unindorsed note, plaintiff claiming to be the owner thereof by devise from payee 2871 Addition of name of another joint maker to a note without knowl- edge or consent of the others . 2533 Admitting corporate existence . . 2582 Administrator suing in his own name on a note payable to him as administrator 2739 Agent, in whose hands a note has been placed for collection, may sue in his own name . . . 2470 wrote the words " at eight per cent." on the note, with the assent of the maker .... 2769 Agreement by a debtor and credi- tor that the creditor will, at a future day, accept new note, etc 2505 by the indorsee of a note for a definite extension of time of payment .... 2495, 2496 that amounts to an accord and satisfaction 2520 Allegations of the petition with re- gard to execution of a note . 2770 Alteration of a writing, after deliv- ery by a third person, without knowledge of obligee . 2695, 2696 - of computed note by princi- pal obligor 2696 of note by one of the mak- ers, by increasing the amount, 2748 of the date of a note with- out consent 2572 Alterations, erasures, mutilations of a paper upon which a liability is sought to be established . . 2816 PARAGRAPH, Anti-commercial statutes of this (Miss.) state, apply only to defence between those con- nected with legal title . 2677, 267& Application of a payment made by plaintiff upon another note due from same parties .... 2915 of the doctrine of Us pendens, 2679" A. owing B., as a surety, gave B.'s agent his note which he as- signed to plaintiff for value af- ter his agency ceased, and note was paid the principal debtor 2545- Assignee's rights limited to those of the payee 2583- Assignor of a note is liable on his contract of assignment, only, etc. . . 2976 Authorized plaintiffs, as bona fide holders for value, to fill in the amount on note 2630 Bankruptcy of the maker of a note at the maturity thereof . . . 2549' Bank's paying the note of a deposi- tor by mistake, and then can- celling the payment. . . . 2624 stamp on a promissory note, 2834 Bearer, owner and holder of a note, 2598 Before a note becomes due the maker absconds 2829 1 Bill accepted by a firm, a notarial certificate of protest must state who compose the firm . . . 2879' or notes, when a contract un- der seal must be so recited in body thereof 290 Bills and notes bearing the stamp of a bank 2699 Bond and mprtgage assigned to a third party in trust .... 2796 Bonds and treasury notes of U. S. payable to bearer at a definite future time 2674-2676 Branch banks are agencies if on principal banking corporation or firm 2763 Burden of proof to show that pur- chaser obtained note for value in good faith 2562 By mistake, note at two months, dated January 1st, 1854, in- stead of January 1st, 1855 . . 2546- Cases of bills of exchange, notes and other commercial contracts, a calendar month is recognized, 2489- Case where a blank space was left in filling up a note in which in- creased value might be added, 2501 Certain sum is, as principal and in- terest on said note , , 2584 INDEX TO CASES. 549 * PARAGRAPH. Claimant in insolvency received, as holder of a note, a composition on account of his claim . . . 2838 Collateral contract to pay certain sum per month as interest on a note 2544 Commodation notes which were di- verted from the purpose agreed upon 2563 Conditional payment of a promis- sory note 2594 Consideration for a note given by maker toward the payment of moneys received and misused by him 2710 for a note was expressed to be for stock in R. R. Co., that afterward increased its stock . of agreement in fraud of 2514 other creditors 2593 of a note is open to inquiry, 2784 Construing contract of guaranty whether it is a note or not . . 2640 Contemporaneous and subsequent guarantees 2786 . written agreement, executed by the payee of a promissory note 2521 Contract to carry an indebtedness of another 2564 to pay eighteen per cent, interest, which is not entered in note 2608, 2609 to perform duties of an office, 550 which the law implies from the indorsement of a note . . 2566 -^^ written on a separate piece of paper between the maker and payee of a note, when it was made 2782-2788 Court has repeatedly recognized the rule that an express agreement, etc 2517 Creditors alone can assail plaintiffs on ground that transfer of note was a fraud of the creditors . 2670 Creditor holding mortgage note of third person as collateral se- curity 2592 Days of grace on promissory notes, 2594 Debtor of a bank transferred a note in payment of his debt . 2474, 2475 Declaration against assignor of note upon his assignment made in Illinois 2684 of an agent to a third per- son 2625 on note that is made in a foreign state 2720 Defendant gave a note in payment PARAGRAPH. of a patent which he alleged was a fraud 2701 Delay in forcing note against maker, 2751 Demand and refusal of payment of a note on last day of grace . . 2467 for the payment of a note . 2599 Description of the note is sufficient without an averment of the consideration 2692 Devolves upon defendant to show, if he claims that the note was fraudulently obtained . . . 2552 Dishonor of a note caused by delay of its presentation for payment, 2483 Donation of a note to a church . . 2522 Draft issued and check forwarded to payee of draft by the maker of the draft 3651 Drafts did not specify any place of payment 2648 drawn in Canada, no place of payment specified therein is governed by laws of Canada . 2648 Due presentment of a note, when denied 2856 Duty of bankers and brokers deal- ing in U. S. paper, when served with notice of loss of such securities 2676 Equity may rectify a written instru- ment drafted by mistake, acci- dent or fraud 2717 Erasure or interlineation in a note will vitiate it unless explained, 2905 Error in cancelling the signature of maker of a dishonored note and writing " paid " on it . . 2763 Evidence as that a note made at Quebec, although dated at Montreal 2791 introduced was the note, the indorsement thereof and a pro- test 2618 to impeach a note in hands of a bonafide purchaser . . 2873 Exchanging a new for an old note is not a payment of the old one unless so agreed 2633 Executing a note in the name of an- other 2597 Execution of a note is only its actual making and delivery . 2783 Expressly stipulates in instrument that no extension of time shall affect liability 2715 Extension of time and suspension of the right of action . . . 2642 Fact that a married woman owns separate estate is not alone sufficient to give her note va- lidity 2609 INDEX TO CASES. PARAGRAPH. Facts which constitute mere matter of defence 2866 Firm issued paper with accommo- dation indorsements, and pro- tected indorsers by a mortgage, 2827 Firm's note held by R. After it was given, some members of the firm retired, leaving it solvent 2821, 2822 Forbearance to one maker of a note 2586 Gambling debt, paid by giving therefor a note . . . 2542-2543 General commercial law, a note does not extinguish the debt for which it is given 2894 Genuineness of the original, and correctness of the preserved copy of lost note may be es- tablished by parol evidence . 2570 Genuine note taken up and de- stroyed by giving a new note with forged indorsements . . 2884 Given in discharge of an antece- dent debt in R. I. does not dis- charge the debt, etc. . 2861, 2862 Giving a note for an antecedent debt 2504 Holder and owner of a note can- celling any of the indorse- ments 2835 i of a note being requested by a surety to proceed against principal maker of note, fails so to do . . . . . . . . 2833 of a note of a married woman 2876 of a note with regard for ac- commodation indorser . . . 2660 of a note secured by mort- gage 2574 of a note, who bought it for value before it fell due, and without notice of payments made on it 2780 n of a solidary note seeking to have its solidarity impaired, 2875 . of notes representing pur- chase money of land, may en- force his lien against land . . 2657 i of paper taken for good consideration in usual course of business 2490 of paper upon an unre- jected contract, on which pay- ment has been made . . . 2682 Inadequacy of payment for a note, 2477,2478 Indemnity before paying a lost note, f 2472 Indorsed note was discounted at PARAGRAPH; drawer at ma- 2884- bank for the turity Indorsement by payee of a note is a contract to pay it, etc. . . in blank by payee of a note, made before a note was signed Indorser having security in his own hands fully equal to his lia- bility in debt to maker of a note when it was made .... of a note, though an in- 2611 2510 2855- 2794 2595- dorser for accommodation only, is not a " surety " . . 2690, 2691 paid and took up note on which he brings suit . 2619, 2620- said to plaintiffs agent that he doubted if the maker would pay the note 2462 taking collateral security of a maker of a note .... 2793- waiving a demand and no- tice 2795 Indorsers take up note they in- dorsed by giving their own . Induced to sign a note by fraudu- lent representations as to char- acter of the paper .... Inquiry concerning an immaterial ; inquiry as to an inference . . Insolvent gives his note to one of his creditors in settlement of a claim of creditor against an- other party 2830> merchant sells to his penni- less clerk a stock of goods . 2567 Instrument beginning, "we as trustees, but not individually, promise to pay " completed and delivered, 2606,2607 executed in this form, re- 2491 2740 ceived of D. M. P. five hun- dred dollars due on demand in the following form is not a negotiable instrument . . , which in terms and form, 2895 2698- is negotiable, recites that addi- tional interest will be paid . 2509 1 Interest of payee to get a note off his hands 2540- Joint and several notes signed by three persons, as makers, one adding to his name surety . . 262T note signed by two persons, one being liable for half as principal and half as surety . 2807 Judgment given against agent of a forged mortgage, although the mortgage was declared void . 2656 : INDEX TO CASES. 551 PARAGRAPH. Judgment on a note or contract oper- ates as a merger .... 2662 Lacking the essential quality, as to time of payment, the note is not a negotiable one . . . 2634 Land-mortgage securing note brings, on sale, less than amount of note 2747 Law in force when a promissory note is made 2765 Legal import of a blank indorse- ment on a note 2581 Liability of payee of notes secured by mortgage ...... 2700 i. of the maker and indorser of a note 2864 Limitation of power of attorney as to signing indorsements for his principal 3694 Made a promissory note, and ex- pressed to be for value re- ceived 2559 Maker of a dishonored note induces a third person to buy the note by promising to pay it ... 2550 i of a note surety for other of which holder had notice when note was made 2565 i of note as a witness, after judgment recorded against in- dorser 2809 . of paper, which is void in hands of payee 2525 or indorser of a note show, that although dated in Boston, was actually made in New York 2507 Makers admitted the execution of note, but denied the indorse- ment 2902 ^^ of a note seek to annul a judgment by the administrator of succession 2469 Making a note payable at a bank authorizes it to pay it ... 2624 future services good con- sideration 2587 of a champertous under the law of the state . 2486, 2487 Married woman's not stating an in- tention to charge her separate estate therefor 2635 ^ woman with consent of husband making assignment of a note 2874 Material alteration, the erasure of the word surety, by payee . . 2577 Member of a firm gave firm's note in payment of debts, some of which existed before new member joined firm .... 2528 PARAGRAPH. Memorandum by maker of note. My note becoming due the loth instant, good for ten days after date 2813 of " F. & L." bonds as col- lateral claimed to be an agree- ment, etc. 2752 Mere knowledge of non-payment of a protested note .... 2737 memorandum made by a party on a note, or obligation, in his possession 2814 Merely a transfer of original lien, and a change in the form of the security 3655 Merging original cause of action by the acceptance, by parties in interest, of a note .... 2534 Mortgage note of a wife knowingly secured by a creditor . . . 2588 ^^ required ten per cent, per annum, payable annually. Note ten per cent, per annum . . 2535 Mother signs a note under a threat to arrest her son as a thief . 2843 Must be an indorsement or assign- ment on note 2581 Need not prove a note was made on the date it bears .... 2859 Negligence may consist in either failing to do what should be done, or doing what he would not have done 2704 Negotiable securities stolen and sold by the thief 2473 New firm issuing notes in renewal of notes of the old firm . . 2827 note given for balance due on old note, because of want of space on an old note for entry credit 2845 note given to take up an- other then due 2633 Non-negotiable, is given to a mar- ried woman by a third party, and she transfers the note . . 2760 Non-payment of a note at time specified, is dishonored No set form of words is requisite to constitute a note .... Note, blank as to amount, but per- fect in all other particulars deposited in bank for col- lection by its owner, was paid by a person not a party thereto, 2685, 2686 drawn for a certain sum, payable to any person, " or or- der," "or assigns," "or bearer" 2498,2499 drawn payable to wardens 2547 2850 2541 552 INDEX TO CASES. PARAGRAPH. and vestry of a church, or bearer 2743 Note due from a resident of Col- orado to a resident of Califor- nia, is not taxable in Colorado, 2513 executed by maker's mark, if indorsed 2823 executed on Sunday, but bore date the following day, indorsed before maturity for value 2761 . for dollars, made in Georgia in January, 1863 . . 2722-2724 given a creditor to induce him to sign composition . . 2589 given as partial payment for a piece of work .... 2870 given by insolvents a few days before the insolvency . 2826 given by new firm after dis- solution of the old in satisfac- tion of old firm's guarantee . 2790 given by one person to pro- tect property of another from his creditors, of which plaintiff was cognizant 2560 given for additional stock in a corporation . . . 2886, 2887 ^ given for a patent right . . 2492 given for balance due on set- tlement in a forbidden trans- action 2671 given for stock in a new company 2649 . given, in consideration of forbearance 2602 . given to have criminal pro- ceeding discontinued . . . 2596 in the ordinary form, signed by a married woman, made payable to her husband . . 2709 in which it is agreed to al- low interest to become princi- pal, if not paid annually . . 2738 is evidence of indebtedness and substitution of one for an- other does not discharge the debt . . 2904 . is not negotiable if its pay- ment depends upon a contin- gency 2891,2892 issued for accommodation of indorser, and was by the latter diverted 2901 . made by defendant in favor of another, which was not paid or protested at maturity . . 2825 made by one member of a firm in its name made in the U. S. and pay- able there, defendant, after 2463 PARAGRAPH. action brought, tendered pay- ment in Canadian currency . 2849 Note made in this state, discount- ed in another state, at rate of interest greater than here . . 2661 made payable a specified number of months after date . 2716 made payable on condition that a case pending in court is decided in favor of payee . . 2731 not made to the order of the plaintiff, the payee . . . 2710 not yet due does not consti- tute a debt, which can be at- tached to answer a judgment debt 2889 not yet due, indorsed by a party who has since become bankrupt 2805 of a turnpike company, issued before it had filed a copy of its by-laws 2468 on which the interest is pay- able quarterly 2732 payable " at any bank " in a specified city, proof of pres- entation at any bank in such city, etc 2637 payable at one or two years after date, or statement on its face that it was given and se- cured, etc 2712 payable in bank, indorsed, for value before maturity . . 2466 payable one day after date, 2713 " payable on demand after date " at a bank, with interest " after maturity " .... 2483 payable on demand is barred by the statute of limi- tation at expiration of six years . 2910 payable on demand thirteen years after its date .... 2846 payable to bearer is vested in each successive holder, 2621-2623 payable to bearer, though overdue and dishonored, passes by delivery legal title to holder 2687,2688 payable to maker or ficti- tious person 2663 payable to order of A., is given by him to the maker, without indorsing it ... 2746 promising to pay A., on his order 2819 signed by one person as principal and another as surety 2746 INDEX TO CASES. 553 PARAGRAPH. Note signed by one who is a minor 2817 signed by the secretary- treasurer of a municipality . 2847 .. signed " George Moore, treasurer of M. F. D. Ass." 2580 signed " U. S. Manf 'g Co., George H. Fox treasurer " . 2625 signed with an X in pres- ence of a witness .... 2804 sued that had been obtained by surprise and false representa- tions 2828 to a creditor for a balance of his claim, in consideration of his signing a deed of com- position 2836 transferred after time ap- pointed for payment . . . 2824 transferred, by indorsement, as collateral security . . . 2869 under j50 drawn to order, transferred by him to whose order it is made 2800 under seal, is made with an agent in his own name . . . 2573 was in the bank where it was made payable, and the maker had no funds for its payment 2856 was transferred to plaintiff after the death of the payee . 2911 was, " twelve months after date, or before, if made out of the sale of a machine " . . which is payable "on or before three years from date," which the promisor gave 2890 2527 2741 for the benefit of his son Notes given for a larger sum than was due 2714 made payable at defend- ant's bank, and the funds not being there, demand for pay- ment was not necessary . . 2657 Notice of protest to indorser within . confederate lines within a reasonable time after the war, 2736 - to a member of a firm, in- dorsers of certain notes, that makers refused payment . . 2903 Obligation before a notary to pay a certain sum of money . . . 2851 Offer by indorser to make himself promissor by signing new note, 2462 Offered to prove that the note was given without consideration . 2902 One of two members of a firm in hands of a bona fide holder . 2626 who has executed a note in error, for a debt not due , , 2505 PARAGRAPH. One who is in fact owner of a note negotiable by indorse- ment, but not indorsed to him, 2508 who takes a stolen instru- ment bona fide for value . . 2603 Only evidence to sustain the allega- tion of mistake consisted of a telegram from defendant cash- ier 2658 Omission to insert in note, given for a patent right, as required by statute 2538,2539 Omitting an indorsement through accident, mistake or fraud . 2697 Oral evidence to show that payee agreed to treat him as an in- dorser, etc 2729 Owner of several past due notes, against same parties . . . 2659 Paper that is absolutely void for want of power in the maker to issue it 2705 Parol agreement as to disposal of purchase money notes . . . 2777 evidence is admissible to show want of failure of con- sideration 2907 evidence of the indorse- ment of a note without pro- ducing it 2471 evidence as to the meaning of the term current funds . . 2516 testimony as to written agreement made at time of making and indorsing a note, 2725 testimony is inadmissible to change a simple unqualified indorsement 2566 Partial payment made by one debtor on a note, will not suspend running statute of limitations, 2568 Partner holding notes he was bound to apply to firm's liabilities, fraudulently converted them . 2678 lent money to his firm taking a note therefor signed by himself and partners . . 2536 Partnership paper given with bad faith . 2785 Party authorized to sell property, in absence of any express limita- tion of his powers . . 2643-2647 knowing signature to a promissory note to be forged, 2569 purchasing paper beyond the jurisdiction 2679 taking note, with notice of fraud 2601 Patent right notes must be stated to be such under laws of Ohio . 2808 Payable on a day named, " or be- 554 INDEX TO CASES. PARAGRAPH. fore, if made out sale of J. B. Drake's horse, fork and hay carrier with use " . . . . 2762 Payable on or before six months from date 2772 Payee of a note inducing another to indorse it by creating a sec- ond note 2779 Payee's agent filled up blank and altered note, by direction of principal, unknown to the surety 2541 Paying a forged note supposing his signature to be genuine . . 2771 Payment of a note in full by in- dorser who left it with a bank which commenced suit thereon, 2853, 2854 . of a note made by partners is received by an agent in Con- federate currency . . 2734, 2735 . of a note, without showing that the receiver of the money has the note 2512 . of note made in this country must be made in money of this country 2832 pleaded for goods sold by a note which was given to the plaintiff 2842 Payor of a note conveys land to holder, by way of security . 2537 Person, possessed of ordinary fac- ulties and can read and write, signs a note without reading it, 2553 who negligently signs and delivers to another a note con- taining blanks 2556 who receives two notes upon an agreement to release a demand upon their payment at maturity, discounted one of them 2644 ^ with whom a note is left for collection is the agent of the holder 2685, 2686 Petition against several makers of a joint and several note more than fifteen years past due . . 2558 Plaintiff and defendant indorsed a note whereof M. was payee. Makers became bankrupt . . 2759 . permitted to prove state- ment of the deceased made soon after date of note . . . 2913 Plaintiffs, in good faith, secured from payee, two notes in ex- change for one made by de- fendant 2666 Pleaded want of notice of protest, PARAGRAPH. but produced no affidavit in support of such plea . . . 2831 Pledge or sale of a negotiable in- strument 2865 Point in an action on lost note . . 266 Possession of a note is pritna facie evidence that the holder is owner thereof 2464 Possessor has no better, or other title to the proceeds arising from sale of note, than to the paper 2628 Power of municipal corporation to issue commercial paper . . 2488 Precedent debt considered as a suf- ficient consideration for trans- fer of a note 2636- President and treasurer of local board of trustees certified to having certain number of dol- lars belonging to the insurance company 2524 indorsing a note at its in- ception and before its delivery in alleged approval, etc. . . 2730- Presumption as to indorsements on negotiable paper 2511 of a want of notice of any defence 2681 Pretence that the note was not in- tended to be a promissory note, 2485- Principal in a note borrows money to pay it and delivers note to the lender of the money un- known to indorser .... 2502 Prior equities of antecedent parties to negotiable paper .... 2557 Procuring an assignment of a note on the promise of payment by defendant 2882" Promise in writing to pay on a day certain to A. B., or order, in cash or goods 284O to pay a note to holder which is not indorsed . . . 2841 to pay at a specified place is not a promise to pay gener- ally 2860 to pay a sum of money when a railroad shall be built, 2767 to pay money for articles il- legally kept for sale . . . 2852" Promisor issued his note under fraudulent circumstances . . 2562 Proof that consideration of note was unlawful sale of liquors . . 2576- Protested draft is not an obligation within the meaning of the Act of 1 6th of April, 1850 . . . 2531 note held by a bank cred- INDEX TO CASES. 555 PARAGRAPH. ited with deposits of the debtor, 2810-2812 Protest of the non-payment of note be premature 2888 Purchaser of a mortgage from the assignee of a mortgage is put upon inquiry as to vendor's title . , 2885 of a note from payee before it is due, but after the payee has executed to payor a release, of negotiable paper is not put upon inquiry that payee sells liquors of paper for value, without notice 2677, of paper, through a broker, is not a lender of money Purchasing a note that is in the hands of another .... Question as to liability of indorser of a note of pleading must be deter- mined according to the course of practice in this (Ind.) state, Receiving a covenant from payee of a note that the sum for it is due, Renewal note delivered but not duly accepted ^^ note given, with under- standing that the original note shall be surrendered . . . notes were received and discounted as shown on the books of the plaintiff . . of a matured note executed by his decedent Rent note being made payable to bearer Requiring notes given for patent rights, to show it .... Retaining bond upon a new con- tract without consent of owner of bond Return of note to original indorser, by the holder writing his name under previous indorser and de- livering to him the note, etc., Revenue stamp affixed to a note or a mortgage not required in State courts to perfect evidence, Right of creditor having two de- mands against his debtor, ap- plies payment received . . Rule which would require maker of a note to act after its ma- turity, and before payment . Sale and delivery of a note with indorsement thereon . . . Second indorsee, who acquires a 2519 2554 2678 2680 2605 2727 2711 2781 2801 2617 2642 2878 2575 2719 2481 2728 2497 2912 2732 2893 PARAGRAPH. note before it is due, for value, 2707,2708 Signature changed by signer from G., to G., agent 2855 Signer of an obligation describing himself as principal .... 271& Signing a note on a promise to use it in taking the former note, etc., 2631 Situation of a person, to whom money is paid by mistake on a forged note 2775- Solidary debtor on a note in which is written "we promise in sotido" 2476- Stamps attached to note, after de- livery by the holder thereof . 3650 1 Statement in note that it was given for money loaned .... 2480 Statute (of Conn.) provides that a note payable on demand, which remains unpaid four months . 2719 of limitations begins to run from the date 2467 Stipulation in note to pay costs of collecting, including reason- able attorney fees .... 2775 Subsequent indorsement does not make indorser jointly liable with principal . . . 2787, 2788 Sued on note transferred as collat- eral security for money loaned before due 2529- Surety contracts to pay the note, while the guarantor undertakes to pay upon conditions . 2613-2616 Surety is not discharged by a con- tract between his principal and their common obligee . . . 2689 Suit against the administrator of a deceased joint maker of a note, 2465 by the assignee against the assignor of a note on instrument "12 months from the 26th June, 1873, I (defendant) will pay J. C. (plaintiff) $90," etc. . . . Taking a note as collateral security for a debt then created . a note for an antecedent 2867 2839 2590 2818 debt Tearing a note so as to remand con- ditions 2494 Testimony that such person was not an agent 2629 Time given by the holder to the maker 2888 in which a note secured by chattel mortgage must be paid, 2758 of receiving securities, the receiver knew that P. & Co. were insolvent , , 2896 1 556 INDEX TO CASES. PARAGRAPH. Time within which it is neces- sary to present for payment a note, payable on demand . . 2877 Title to negotiable paper cannot be defeated by proof of negli- gence, etc. 2511 Three notes, made to lessee payable to the lessor at different dates, etc. 2530 Through fraud, A. obtained note from B. payable to order of C., forged indorsement of C. and discounted it 2753 Took the individual note of B., on account of goods 2721 Transfer of a note before the last day of grace 2484 of note payable to bearer without consideration . . . 2604 -^ of title in the note without assumption of liability . . . 2578 Transferable quality of a note . . 2499 Two notes given a bank, one as se- curity for the other .... 2776 -^ or more notes, secured by a single mortgage 2523 Unconditional note cannot be changed into condition obliga- tion by parol 2600 Upon compliance with other condi- tions of the note 2612 Usually formed note with coupon notes attached .... 2639-2641 Usurious note made in New York by citizens thereof and dis- counted in Canada .... 2653 Vendee gives his note for the price of a thing which the vendor assumed to sell . . . . . 2503 Waiver of demand and notice upon a note after or before maturity, 2750 What evidence of a debt is there in a note ? There may have been no consideration 2889 When a defence of a want of con- sideration is pleaded . . . 2882 a demand of payment is a day or two late . . . 2797,2798 a maker of a note carelessly leaves room for alteration . 2820 a note, based upon insuffi- cient consideration, has been obtained from a person intoxi- cated . 2754 ^ a note is due and payable immediately 2774 a note is given in consider- ation of services, already ren- dered the maker and paid for, 2768 a note, taken in renewal of PARAGRAPH. the balance due on another se- cured by a deed of trust . . 2778 When a person assumes the pay- ment of other parties' indebted- ness 2857, 2858 burden of proof is upon the plaintiff 2868 ^ indorser of a note lives in a different place from that in which demand is to be made 2880,2881 made payable to the order of the maker has no validity until indorsed and transferred by him 2764 notes are placed upon the footing of foreign bills of ex- change 2815 note is executed by married woman authorized by her hus- band, etc 2806 note is made payable to order of maker is considered as if payable to bearer . 2664, 2665 on the sale of a note, it is represented as business paper . -, upon the maturity of a note 2766 given for a usurious loan as an extension borrower gives an- other note 2897-2900 Where a failure to demand or as- sert a title to a note, was a ratification of the sale . . . 3652 a note given for borrowed money had been lost . . . 2632 a note is given without con- sideration 2548 a note, though negotiable, is payable to order, and unin- dorsed, is accidently burned . a note was given for suffi- 2500 2591 cient consideration a note was taken instead of cash 2649 a payment on a note was no defence 2482 a person becomes surety for, and not co-surety .... 2755 a promissory note is signed by two one being surety for the other 2571 a transfer conveys a title between the parties . . . 2638 a woman assigns by delivery a note payable to her, and af- terwards marries the maker . 2872 defendant denies making a note and alleges an alteration, 2532 genuineness of signature is in question 2914 it is claimed by a party de- INDEX TO CASES. 557 PARAGRAPH. fendant that the date of the note in suit is a mistake . . 2551 Where it is shown that the vendor of a note was not its owner . 2863 maker is dead and the payee of the note one of his execu- tors 2909 negotiable note, obtained by fraud, has been transferred to third party 2672 no one is a bonafide holder, without notice 2547 one cannot be held as maker of the note .... 2610, 2611 . . the holder of an instrument is personally chargeable with fraud in procuring it ... 2705 ^ the maker and surety as- sented to and ratified an alter- ation of a note 2769 there had been no notice of non-payment been given . . 2883 . the validity of an instru- ment is destroyed .... 2706 Wherein all set-offs in favor of maker of a note is avoided . 2749 Widow giving her own note for a debt of the deceased husband which is outlawed .... 2518 Widow's note given to creditor of deceased husband, who does not take it in payment of debt, 2526 Written evidence of debt, made payable in current funds, 2515, 2516 in note " this note is to be paid off within three years from date" 2493 PROTEST, Page 403. Accommodation indorser wrote that he would " waive protest." Afterwards he indorsed note for collection 2944 Action by a second against first in- dorser 2927-2930 Banker or agent to whom paper has been transmitted for obtaining acceptance or payment . 2939, 2940 Description of maker in the pro- test incorrect 2920 Failure, on part of notary, to prepay postage on notice .... 2922 Guaranty, alleged to have been given to bank before maturity of note 2946 Had postage on protest been paid by notary 2922 Holder and party to whom notice is to be given reside at different places 2938 of dishonored paper may PARAGRAPH. give notice directly to all prior parties .... 2937-2940 1 Husband being universal legatee of his wife indorsed her note . . 2917 Incumbent upon party seeking to charge an indorser, to prove legal notice .... 2937-2940" Indorsement on note, " I hereby guarantee payment of the within note without protest," 2945 Indorser went into Confederate lines before note was due . . 2931 Intention of all parties to an ac- commodation bill was that it should be paid by last indorser, 2948" Letter addressed by holders of note to indorser 2930 Neither protest, nor notice to surety of non-payment' by his princi- pal, is necessary . . . 2947 Non-exhibition of note to the maker at the time of protest . . . 2919 Notary knows of indorser's death and his representatives . . 2950 Notary's notice sent to nearest post office or place of residence . 295$ Note dated at Montreal, payable at Albany, N. Y. protest mailed at Albany addressed to indor- ser at Montreal 2922 Notice address to female beginning " Sir " is bad 2934 of dishonor of a note, where parties live in different places, 2934 of dishonor need not be given by notary 2936 to executor of the non-pay- ment of a note indorsed by his testator . . . . - . . 2949 Omission of notary to state that protest was made in the fore- noon of the day of protest . 2918 Ordinary and reasonable diligence required 2925 Payment demanded at office of a party who claimed to have re- moved therefrom previous to service of notice Promise to pay protested bill, of which no notice had been given 2921 Protested draft is not an obligation within the meaning of the pro- vision of the Act of i6th April, 1850 Protest made on 25th July, but no- tice of protest was dated July a6th, saying " this day pre- sented" 2954 Proved that the indorser usually re- 2927 2933 658 INDEX TO CASES. 2952 2943 2955 2941 2950 PARAGRAPH, ceived his letters at the West Townsend post office . . . 2955 Record of proceedings of a notary on protest of a note .... Seasonable notice of non-payment of note sent to indorser where he had formerly long resided, Sufficient to address indorser by mail at the town in which he resides 2955 There must be evidence of diligence of a protest 2935 Two notes, payable at any bank in Boston, were presented at two of them for payment . . . Waive presentment for payment, protest, and notice .... When an indorser of a note dies before the note matures . . - note waives notice of non- payment 2942 - notice of protest was insuffi- cient 2932 Where indorser is bound to pay a non-protested note .... 2917 Whether sufficient diligence has been shown 2926 PURCHASER, Page 409. Conveying individual half of land with option of purchase of other half Creditor making advances under security of a deed of trust . . - taking a chose in action as collateral security for a preexist- ing debt Person to become a bona fide gur- chaser Purchaser of land with notice of outstanding equities .... Purchasers at public judicial sale or under a quit-claim deed Purchasing and paying for land under a verbal agreement as to changes of title, etc Unless actual possession of goods sold has been delivered . . Where no title is invested in a party in whose name deed was made 2959 2958 2962 2960 2957 2956 2963 2951 2963 RECEIPTS, Page 410. Instrument given by payee of a lost note, upon the execution of an- other note . 2964 Receipt of bank check as payment of antecedent debt .... 2966 under seal, given by obligee to joint obligor 2967 PARAGRAPH. Receipts may be explained or contradicted by parpl evidence, 2965 RECEIVER, Page 310. Creditor's bill charges the debtor who has choses in action, etc., 2969 Equitable action by a creditor for an insolvent corporation . . 2973 Receiver is not personally liable for torts of his employees . . . 2971 of a bank, appointed under General Stat. , 2970 of insurance company, holding notes given to the company 2968 Sale of property under execution without leave of the court . . 2972 REDEMPTION, Page 411. Judgment debtor's right of redemp- tion of real estate sold by order of foreclosure 2974 REPLEVIN, Page 41 1. Consignee pledging goods for a loan 2977-2980 Lender gave property bond and re- tained goods 2978 No previous demand upon a bona fide purchaser of a chattel from one who had no authority to sell it 2975 Refusal to accept payment or per- formance 2979 Sheriff selling goods covered by writ of replevin 2976 There is no set-off in replevin . . 2980 REPRESENTATIONS, Page 412. Damages not receivable for loss of speculative profits .... 2981 Money paid on strength of mistaken representations 2981 RETROSPECTIVE, Page 412. Allowed one year from time when act would take effect ... 2982 Amended statute of limitations so as to run against Canadian as well as domestic creditors . . 2982 SALES, Page 413. Acceptance by vendee of articles manufactured for him under an executory contract . . . 2998 of goods, through delay in reporting any defects thereof, 3012 Actual delivery of immovables in La. is not essential to validity of sale 2999 Attorney and judgment creditor INDEX TO CASES. 559 PARAGRAPH. agreed to buy for debtor goods of his to be sold by sheriff . . 3004 Bailee's sale of goods is good against an execution creditor . . . 3003 Both parties should consent to a sale 2987 Buying property with knowledge that title is in dispute . . . 3015 Consent of former owner need not be expressly given .... 2987 Contract requiring goods to be paid for on delivery 3021 Creditor who has bought certain movable goods from his debtor crediting the same on his ac- count 3007 Dealer " is one who makes suc- cessive sales as a business . . 2983 Delivery not complete until per- formance of condition . . . 3023 ^ of goods by seller to carrier, pursuant to directions of buyer, 3014 Finding the sale was upon condi- tion broken 3001 Goods sold to be paid for in cash or notes on delivery .... 3022 Immediate delivery of goods when sold 3005 Judicial sales attached on jurisdic- tional grounds 2995 Parties considering sale complete, 2986 Party knowing the pecuniary con- dition of a creditor .... 3018 Patent defects of an animal when sold 3016 Personal property sold by debtor, must be a real permanent de- livery and change of possession, 3009 Person intrusted with, and in pos- session of, any bill of lading, etc 2996,2997 Possession of personal property is not title 3002 Pretended sale by an insolvent debtor to one of his creditors, 3013 Property which owner has leased is sold by sheriff 2989 Purchaser of a chattel takes it subject to what may be imformalities in the title 2984 Receipt acknowledging it is given for personal property . . . 2994 Representations by vendor, of the quality of thing sold . . . 3011 Sale of goods not to vest until pur- chase money is paid .... 3010 . of lottery tickets held com- plete on selection of tickets . 3000 under the guise of a renting of personal property . . . 2985 Seller, on discovering a buyer is PARAGRAPH. insolvent before their delivery in person 3019 Several articles bought at same time for different prices .... 3013 Valid sale may be made by virtue of power conferred . . 2990, 2991 Vendor not being owner of the goods he sells 2990 of an article sold for particu- lar purpose does not impliedly warrant it 3008 of goods and chattels who is induced by fraudulent means to part with his property . . 2988 When a complete title vests in pur- chaser 3022 everything the seller has to do with the goods is complete, 3020 an expressed consideration of a transfer does not exist . 3017 sale of goods made in good faith with warranty of qual- ity 2992,2993 Where sale has been so completed that vendee has bought and re- ceived goods 3006 SATISFACTION OR RELEASE, Page 417. After satisfaction of a judgment in favor of plaintiff 3024 Release, even sealed, cannot be set up in equity, etc 3025 Satisfaction by one joint tort feasor is a bar to an action against another 3026 SAVINGS BANKS, Page 417. Although earnings have not been. actually received .... 3030 Assessments made by trustees as deposits in the bank . . . 3034 Assets of a bank insufficient to pay its debts 3045 Bank itself and the receiver can sue and be sued 3038 paid a deposit held " in trust for C. B. plaintiff's in- testate" 3048 Commercial paper discounted by savings bank 3037 Declaring and crediting excessive interests 3030 Depositor bound by conditions stated in deposit book . . . 3027 Discharge in bankruptcy does not release a trustee debtor of an insolvent savings bank . . . 3033 Dividend declared and credited to depositor 3031 560 INDEX TO CASES. PARAGRAPH. Does not convert a deposit into an unauthorized loan .... 3029 Loss occasioned by failure of a trustee 3044 Order of the payment of the debts 1 of the bank by trustees . . . 3033 Responsibility of savings banks for deposit in lost deposit book . 3027 Seal on a mortgage is presumptive evidence of a consideration . 3036 Selling stocks held as security for a loan 3039, 3040 Sole and complete rule for the ex- istence of saving banks . . 3028 Termination of rights of action against trustees of savings bank 3028 Trustee of a savings bank cannot become a surety or obligor to his bank 3035 cannot avoid liability be- cause of the manner of vot- ing 3030-3034 Trustees are principals and agents of bank 3041 causing loss or damage to bank 3041-3047 of a S. B. personally liable for deficiency 3036 SET-OFF, Page 422. Action arising upon a contract, any other cause of action arising also upon contract .... 3073 on a certificate of deposit in ordinary form issued by a bank 3081 Any set-off to a note which would be good between original parties 3069 Cause of action founded upon an implied contract 3065 Checks drawn in favor of defendant which were not delivered to bank 3068 Claim arising from a bonus paid on an usurious claim 3072 i brought by B. against A. after an action had been brought against them by A. . 3078 . that there was no such delivery of goods burned as to constitute vendor a bailee . . 3085 Counterclaim can only be main- tained when it exists in favor of all defendants 3077 Debt or demand due from plaintiff to principal defendant . . . 3060 Demand against one person. Set- off must be against all parties, 3061 for money paid as a set-off, 3050 PARAGRAPH, Executor or administrator selling, on credit, property of the estate, 3063 Legacy, presently payable . . . 3059 1 Mortgaging property deeded in trust 3087 Mortgagor having given a certifi- cate that he has no defence . 3052 Note given by A. to B., and not yet due, cannot, in equity, be set-off against note given by B. to A 3074 ^ under seal for $iog trans- ferred, with knowledge #58.83, showing on its face that it was given for a consideration different from plaintiff's claim, 3071 Ordering one judgment to be set off against another .... 3075 Planter contracting by parol to de- liver part of his cotton crop to pay advances, dies before any cotton is delivered .... 3085 Plea of set-off, damages arising from the non performance of a contract 3075 of set-off setting up a prom- ise good in parol by the com- mon law 3066 Purchasing a claim, pending an ac- tion upon the claim .... 3078 Resisting payment for goods by al- leging the sale was in fraud of creditors of seller .... 3088 Right of set-off in an action is gov- erned by law of the place where action is brought . . 3056- of set-off under the Federal Bankrupt Act 3080 s Selling more wheat than is in ware- house, giving purchaser a ware- house receipt for all sold . . 3089- Set-off against notes given in pay- ment for land, a part of which was taken from buyer legally, 3079" may be pleaded in an ac- tion brought by receiver of an insolvent N. B 3057 to the maker of a note, who was principal, arising after maturity 3070- Setting aside a sheriff sale of per- sonal property 3093" up warranty of equality and failure of consideration . . . 3090 Sheriff, on his own authority, dis- tributing money levied under several executions before re- turn day of writ 3094 Stipulation in contract was, unless written notice was given on INDEX TO CASES. 561 PARAGRAPH. July 1st, failure of considera- tion should not be pleaded . 3084 Stockholder indebted to an insol- vent corporation for unpaid shares 3064 Subsequent assignee may avail himself of a certificate of " no defence " 3053 Sufficient evidence of delivery of goods sold 3094 Suit to collect purchase money, de- fendant offered as a set-off his claim against his deceased partner 3062 Surviving partner buys from ad- ministrator interest of his de- ceased partner 3062 partners having a subsist- ing right at the time action was commenced 3067 Taking collaterals subject to the equities 3054 Vendor who is ignorant of the vices of things sold .... 3092 When a debt against decedent can- not be made a set-off . . . 3063 a receiver of an insolvent bank has no power to allow a set-off against debt owing the bank 3082 bank can retain deposits as a set-off 3058 Where debts are not mutual or set-offs 3051 demand for damages is a proper set-off 3055 goods are at the risk of the buyer 3092 goods do not correspond with warranty 3091 -^^ vendee in a contract of sale refuses to receive goods sold . 3086 SIGNATURE, Page 428. Action on a note against alleged makers who deny their signa- ture . 3100 Admitted the signature of firm by one of its members .... 3101 Checks forged in his name by his clerk, paid by his bank . . . 3097 Dealer with a bank trusting his clerk's report that his bank book was correct 3096 Defendant by exception admits his signature 3096 Failure to add official character to signature 3102 Genuineness of signature to indorse- ment of note ceases to be pre- sumed, etc 3095 36 PARAGRAPH. Receipt offered as standard of comparison 3099 Standards of comparison used by experts upon genuineness of a signature 3098 Where signature to bill or note is denied 3100 STATED ACCOUNT, Page 429. Balance shown in an account and claimed in a suit .... 3105 Burden of proof is on the party im- pugning the accuracy of the accounts 3103 Stated accounts were given in an answer in equity 3103 Term "open account" is used in contradiction to a stated ac- count 3105 What constitutes, is a matter of evi- dence 3104 STATUTE OF LIMITATIONS, Page 429. Acknowledgment of a debt to a stranger 3125 of debt, barred by S. L. . 3136 Action against stockholder of a bank that failed June I, 1865, brought Jan. i, 1870 . . . 3138 against stockholder to en- force liability where all stock has been paid in 3166 brought against trustee of a manufacturing company . . 3165 for one-half of money ex- pended in purchasing material to build a house jointly . . . 3152 shall commence when a summons is delivered to the sheriff 3162 Administrator failing to sue on, or collect a note 3151 A payment by one of several part- ners of a joint note revives it as to the others 3119 Applies to future transaction only, except 3111 At the time a right of action ac- crues, there is no one in being to assert it 3146 Bankbills that ceased to circulate as currency prior to June ist, 1865 3155 Bank failed in Feb., 1865. In June, 1872, creditors filed bill in equity 3139 Barring suits for the recovery of real estate 3140> Claim that in an action for money loaned . ,3123: 562 INDEX TO CASES. PARAGRAPH. Credit upon an account after the cause of action on the same is barred S. L 3112 Debt acknowledged by personal representative of original debtor, deceased 3168 Debt was due Oct. 6th, 1862; suit brought Oct. 6th, 1868 . . . 3129 Delivery of summons to sheriff did not prevent running of S. L. 3163,3164 Drawer of a check having no funds at the time in bank to meet it, 3170 Foreign corporation sued in this State cannot avail of S. L. . . 3167 Fraud which must have been dis- covered if reasonable diligence had been exercised .... 3144 Generally limitation laws act only upon remedies and do not ex- tinguish rights 3156 Holder of check delays for six years to enforce his claim .... 3171 Indorsement, in handwriting of debtor not signed by him, of a payment of part of note . . 3150 Instrument payable at bank lodged with the bank for collection 3160,3161 < It will suit my convenience to ex- ecute my note for the balance due for rent, etc." .... 3145 Lapse of six years is not a bar to an action to recover a deposit . . 3169 - of time provided by a S. L., as to real action vests perfect title in holder 2133 Letter from defendant stating, " in regard to settlement, that he was ready any day," etc. . . 3132 Letters written by a partner recog- nizing the existence of a judg- rnent against the firm . . . 3142 Mistake of fact induced by attor- ney of opposite party . . . 3154 Money loaned on verbal promise to pay on demand 3118 Must insist on S. L. as a bar to his answer 3128 Non-resident debtor owning attach- able real estate in the State wherein cause of action ac- crued 3117 One partner cannot deprive the firm of the bar of S. L. after dissolution of firm .... 3137 Partial payment of debt replied to S. L 3121 Parties to a contract providing by express stipulation for shorter limitation, etc 3141 PARAGRAPH. Part payment of consideration of a parol promise not to be per- formed within a year . . . 3108 payment on a bond made by the administrator of one of the joint makers 3115 Payment by principal, year by year of interest 3124 of interest on a note by the principal 3114 Payments by treasurer of a partner- ship from partnership funds . 3120 Presumption that a bond has been paid which arises after a lapse of twenty years 3126 Promise by a member of late firm, made after dissolution and be- fore S. L 3127 " he would see his brother and would pay the debt " . . 3106 relied on to avoid statute of limitation made to an attorney, 3106 Questioned whether administrator of an estate of a deceased per- son can in any way revive a debt 3149 Receipt for nine hundred dollars, borrowed, to be returned, , " when called for " . . . . 3130 Reduction from 20 to 15 years ap- plies to causes of action accru- ing after passage of act . . 3134 Removal of a debtor, without in- forming his creditor . . . . 3130 Residence and not citizenship is contemplated in statute pre- scribing limitations .... 3107 Revival of a debt after S. L. has debarred 3118 Rule of common law is limitation of action depends on the law of the forum 3153 Runs against an infant having only color of title to land .... 3110 Statute ceases to run when debtor becomes a non-resident, but re- vives on his demise .... 3107 of Limitation commence running from the time a right of action is discovered . . . 3143 of Limitations in force where the remedy is sought, and not that where contract was made 3109 of Limitations of loci con- tractus cannot be pleaded in bar in foreign jurisdiction . . 3153 Statutes begin running on a loan, receiving therefor no written obligation 3118 INDEX TO CASES. 563 PARAGRAPH. Statutory bar of one State cannot be pleaded in another .... 3153 Surety is not barred in the courts of this State 3156 Time runs from beginning upon all demand, paper not excepted by Stat. Comp. L. 1871, ( 7151 Mich.) 3148 When two separate sums are re- ceived by one bond .... 3157 Where a course of action is created for money loaned from its date . 3130 a demand is necessary to found an action upon . . . 3147 . a person is kept in igno- rance of his cause of action through fraudulent means . . 3131 one practices fraud to the injury of another, the subse- quent concealment of it . . 3131 S. L. has begun to run dur- ing life of the devisor . . . 3113 Will not bar suit on coupons, unless time is sufficient to bar rent on bond also 3158 STATUTES, Page 436. Construction put upon statutes by public officers whose duty it is to obey 3172 STOCK AND STOCKHOLDERS, Page 436. Absence of proof that parties were merely speculating upon the fluctuation in price .... 3175 Allotment by directors to them- selves of shares at forty per cent, discount 3185 Assignment of a certificate is only an equitable transfer . . . 3173 By act, all stockholders are severally and individually liable to credi- tors 3177 Calling directors to account for losses ...... 3183, 3184 Charter providing that so long as a stockholder remained indebted to 'he bank, etc 3181 Elementary rule of construction as regards written instruments . 3176 Facts and circumstances surround- ing the making of a contract . 3176 Failure to pay for the shares sub- scribed for ...... 3180 If any stockholder is required to pay debt due by the corpora- tion ... - 3177 Manufacturing company gave its notes for goods bought . . . 3186 PARAGRAPH. Option to buy a certain number of shares 3195 Organization which has attempted irregularly to create itself a corporation 3179 Person is presumed to be owner of stock when his name appears on the books 3178 Pledgee had not the stock during the pledge 3174 Stock book is evidence of the re- lations of the corporation and corporators 3173 Stockholder who has not paid up his subscription 3177 Suit for the collection of a debt due from a corporation must be brought within a year . . . 3186 When a stockholder was not per- sonally liable for the debt of his company .... 3186, 3187 statute does not make indi- vidual stockholders primarily liable for company's debts . 3182 Without intent to deliver or accept, but simply pay the difference, 3175 Where an illegal intent will not be presumed 3175 SUBROGATION, Page 439. Guaranty to hold bankers harmless of loss 3189 to secure an ascertained balance 3189 Only when all the property of de- fendant has been applied can the guarantor be called upon, 3189 Settled rule of equity between debtor and creditor .... 3189 Surety who pays the debt of his principal 3190 SUNDAY CONTRACT AND SA-LES, Page 440. Action based upon a transaction tainted with illegality . . . 3194 Contract to hire a horse on Sunday for business purposes . . . 3192 Note or agreement in writing, dated on Sunday 3193 Promissory note payable to order may be validly made on Sun- day . 3193_ Written contract made on Sunday, bearing date of a week day . 3191 SURETIES AND SURETY, Page 440. Action between sureties for con- tribution 3272 for contribution by a surety 564 INDEX TO CASES. PARAGRAPH. against one of several co-sure- ties 3254 Action of payee against estate of deceased co-surety .... 3269 on a bond against a surety, judgment having been ob- tained against principal . . 3236 . on a note payable in bank, wherein judgment by default had been rendered .... 3285 Agreement between payee and principal of a note for exten- sion of time 3239 without consideration to give time to a debtor . . . 3219 Any unauthorized variation in an agreement which surety has signed 3249 Assignment of surety for the benefit of his creditors 3269 Assigning personal property, as se- curity, to payee by maker, 3276-3280 Banker's lien upon all securities deposited with him .... 3204 Bond given to dissolve plaintiff's attachment conditioned to that plaintiff may recover . . . 3197 on which principal and surety are bound .... 3202 Certain sale notes were deposited with defendant as collateral . 3291 Check is not an assignment by the drawer to the payee of a debt 3211,3212 Circumstances that a security has become or is invalid . . . 3242 Confession of judgment by a prin- cipal 3282 Contribution, security on official bond also aids principal in breach 3255 Co-sureties, as between them- selves, are liable in proportion to their amounts of stock . . 3120 Creditor or surety has a right to havp any collaterals the debtor may have pledged .... 3262 Different footing of a surety, in some respects 3285 Discharge in bankruptcy does re- lease surety on an appeal bond, 3263 of principal discharges known surety 3261 ^ of surety on a note on ground of forbearance . 3287, 3288 Discontinuance of an action where sureties have given bond to plaintiff 3241 Estate of a surety bound jointly but not severally 3206 Extension of time of payment, upon PARAGRAPH, consideration that maker will annually pay interest . . . 3215 Facts, and not mere conclusions of law must be stated .... 3286 Government suit against sureties of a postmaster 3292- Holder's possession is prima facie evidence of ownership . . . 3252 Indorser of an accommodation bill has a right to notice of dis- honor, unless, etc 3205 who was also counsel for principal in obstructing collec- tion of debts 3268 Indulgence and passiveness by creditor with regard to col- lateral placed in his hands . . 3246- or non-action, though in the meantime the principal be- comes insolvent 3248 Judgment by confession gives the surety the right to expect, etc., 3265- rendered against a surety may off set against assignee, etc 323a rendered against one of the makers of a note 3238 Law will not increase or enlarge terms of an undertaking . . 3256- Liability of sureties on a note is not discharge by S. L. until after four years, etc. . . . 3277-3280 of surety is always strictis- simi juris 3223- of surety to be extended by implication 31 99^ Limitation laws act upon and do not extinguish rights . . . 3289 1 Married woman can contract no liability as surety for her hus- band 3221 Mercantile engagements guaranteed by sureties 3266 Merely giving an additional by a principal 3209,3210 Mere neglect of privileged creditor to sue . . 3235 Mortgage given to secure payment of notes, their time of payment extended 3218 Motion to set aside judgment on replevy bond 3257" N. became surety upon a note for L., and the latter executed -a mortgage to secure him . . 3290" No difference between surety con- tract than any other .... 3199- Notes payable to bearer are deposited as collateral security for a debt, 3274 Officers and managers of companies are trustees . , , 324T INDEX TO CASES. 565 PARAGRAPH. One who has delivered draft as col- lateral 3207 who is a bonaf.de purchaser of a debtor's land from a fraud- ulent vendee 3225 of joint makers of a note obtains a judgment against the other makers 3241 of three co-sureties dies and the two living paid the debt 3196 of two sureties dies, and his executor pays the whole claim 3280 Owner of negotiable securities which have been stolen . 3250-3252 . of note secured by collateral security and by indorsement, and releases security . . . 3283 Parol promise to indemnify one, if he will go surety .... 3273 Part payment of a debt already due is not sufficient consideration for extending time .... 3222 Person indebted by bond, paid a balance due upon it in notes of an insolvent bank . . . 3275 Promise of a surety assuring the payment of a specific lot of goods 3259 Proof of debt in bankrupt court by judgment 3268 Right of action accruing against two or more persons . . . 3208 of action of one surety against another 3253 Security taken by one of several co- sureties to indemnify him . . 3228 Settlement in Probate Court by principal 3581 Stockholders give their joint and several note for money loaned their company 3200 Sureties, not having paid the debt for which they are bound . . 3195 Surety after judgment continues for most, if not for all purposes . 3231 asking for an injunction to stay the levy after judgment . 3271 cannot be held under a judgment void as to his princi- pal 3216 cannot benefit by an excep- tion personal to principal . 3234 does not assent to an alter- ation of the terms of his un- dertaking 3230 for a tenant is not released as to rents subsequently accru- ing 3258 PARAGRAPH. Surety has the right to stand upon the very terms of his contract, 3270 may, after maturity of debts, relevy goods mortgaged to se- cure payment, etc 3232 of an administratrix who fails to perform her duties . . 3217 paying judgment against his principal and himself . . 3201 sign a bond which he is not prevented from reading by any trick, etc 3243 upon a bond, the name of a co-surety, on the faith of which he signed, was a forgery . . 3237 who holds several securities by way of indemnity . . . 3220 who takes of the debtor a mortgage for his indemnity . 3224 Surety's liability for his principal is not a valuable one .... 3195 payment of what as to the creditor is his own debt . . 3203 Suit against a late cashier and his sureties 3267 Taking a lease of land from an- other who has bought and claims the land leased . . . 3293 To entitle surety to an assignment and execution against his co- sureties 3198 Undertaking by an infant as surety, 3226 Valid agreement to give time on note to principal 3260 Verbal notice by a surety on a note to the holder thereof . 3214, 3215 Well settled that no indulgence by the creditor toward the princi- pal debtor, etc 3245 When an illiterate man executes a writing which has been falsely read to him 3244 a party, asked to sign a note, as surety, refuses unless, etc. . 3213 there can be no subrogation, 3202 Where assets descended to the heir and be made to contribute . . 3196 husband cannot sue his wife at law or in equity .... 3221 one of two co-sureties pays the debt of their principal . . 3229 one person becomes surety for the payment of money by another 3212 surety made the principal his agent to complete the note, 3236 surety or indorser of a bank- rupt is released the principal maker of a joint note dies . . . 3240,3241 566 INDEX TO CASES. PARAGRAPH. TAXATION, Page 452. Claiming that a portion of capital is in U. S. bonds .... 3297 Deed of a state tax collector . . 3318 Effect of the amendment of B. Act of 1880 3314-3316 Exemption conferred upon corpo- ration 3310 Fact that taxation increases expen- ses 3305 Foreign corporations taxation . . 3322 Immunity from taxation is not such a franchise 3311 Laws for taxation of N. B. in Mass. 3313 Ordinary deposits of U. S. (or N. B. notes), in a bank are part of its assets 3298 Party having no title to land pay- ing taxes on same . . 3320-3322 Personal property in hand of re- ceiver of a N. B 3308 Power to sell land for the non-pay- ment of taxes 3319 Profit upon capital or investment of a corporation 3294 Purchaser of property sold for taxes 3317 Question of exempting deposits in S. B 3312 Relator was assessed for certain . shares in a N. B 3303 Return of city assessor, setting forth amount of taxable capital of banks 3296 Revenue act does not make cor- poration liable for taxes . . 3302 Shares of N. B. may be taxed . . 3306 Solvent debts, notes and mortgages, 3295 Tax collector's deed with uncertain description 3301 ^ of ten per cent, imposed by act of July, 1866, .... 3307 on corporation may be pro- portioned to the income re- ceived 3304 sale made on a day other than that provided by law . . 3300 United States currency and N. B. notes belonging to a bank . . 3299 When N. B. shares cannot be taxed ........ 3309 TRADE MARK, Page 456. English practice of retaining firm name 3339 Habitually stamping goods with par- ticular mark 3340 Label adopted to designate goods 3342-3344 PARAGRAPH, Selling his own goods in packages with labels 3341 Specific damages need not be shown 3343 Using another firm's name as a trade mark 3338- Words in a label adapted as a trade mark 3345- TRANSITU, Page 457. Before vessel arrived B.'s notes where protested 3346- Goods sold to be paid for on their delivery 3346 Stopping goods while in transitu, 3346- TRIAL, Page 458. Failure to prove cause of action set up in his complaint .... 3347 Judgment upon a cause entirely dis- tinct from that alleged . . . 3347 Ruling made on purely technical grounds 3348- TRUSTEE, Page 458. Acquisition of legal title, with notice the equitable title is in some other person .... 3356 Action brought to obtain construc- tion of a will 335J Agreement to convey seven lots giv- ing back bond and mortgage on each lot 3378 Assignee of a claim against manu- facturing company .... 3366- Cashier of a bank which is the cestui que trust in a deed of trust 3352 Constituting a valid express trust . 3365- Conveyance of land by deed absolute, but on parol condi- tions 3372 Directors allowing funds to be lost or wasted 3354 Duty of trustee for sale to use all diligence to obtain best price, 3374 Habitual drunkard conveys lands without consideration . . . 3357 Having interest in land, is induced to confide in another . . . 3360 1 Holder of one of several notes se- cured by a trust assignment without preference .... 3359- Father made a deposit in his own name as trustee for his daugh- ter, and died 3350 Mere making deed to one as trustee . , 3370- INDEX TO CASES. 567 PARAGRAPH. Money deposited in his own name as trustee 3367 Presumption of a resulting trust from a wife's possession of premises, etc. . . ... . . 3355 Promise by a trustee to allow his personal debt as a credit upon a note held by him as trustee, 3349 Property held upon any trust to keep, or use, or invest in a particular way 3377 Purchaser by quit-claim died before the maturity of the purchase money notes 3373 -^ of property at trustee's sale, takes it subject to incum- brances 3362 Receiver chargeable with interest on trust 3371 - of insolvent life insurance company 3364 Supreme court has not the power to destroy a valid trust . . . 3363 The owner of property conveying it to another in trust . . 3368, 3369 Trustee of a fund for the security of a debt to others 3351 Trust fund is traceable into what- ever character of property it may be converted .... 3375 Using a depository of government bonds without permission of owner 3376 When a trustee is authorized to in- vest of two specific modes . . 3361 Where a trust fund has been per- verted 3358 USAGES OF TRADE, Page 463. Party conversant with rules and usages of trade 3379 Usages of board of trade admitted to justify the act 3379 USURY, Page 463. Accepting stock at par, which is de- preciated Accommodation note sold at a usu- rious rate of discount . . . note sold upon a usurious consideration Advancing money to purchase lands for the benefit of himself and others After foreclosure and interest paid, Agent's retention of a percentage, unknown to lender .... Agreement between factor and a holder of produce .... ^ by third person to pay 3454 3460 3453 3430 3418 3476 3396 PARAGRAPH, high rate of interest by bor- rower 3404 Agreement to pay money at a cer- tain time 3486 to pay more than legal in- terest, at time of loan . . . 3450 that borrower shall receive uncurrent money at more than market value 3451 was not made in this state, 3464 Assignment of an expected surplus in property, pledged to secure a usurious loan . . . 3408, 3409 At time of loan, nothing is said as to rate of interest .... Bond and mortgage sold to plain- tiff at a discount not usurious by the law 3513 3517 3407 3383 of the place where payable . Bonus and interest on bonus de- ducted from a claim . . Borrow, after he has repaid the money 3518 Building societies are exempt from usury laws 3487 Careless manner of keeping his books 3383 Certain amount received usuriously, 3388 notes to plaintiff 's assignor, 3387 Check given for loan in uncurrent funds 3447 Citizen of one getting a loan from a citizen of another State, 3493, 3494 Code provides relief against the payment of illegal interest . 3382 Commission for obtaining loan, 3514, 3515 Computing interest under mistake as to time 3385 Confession of judgment to aid in violation of usury laws . . 3491 Contract depending upon contingen- cies 3429 for the delivery of personal chattels 3443 to procure assignment of choses in action, at a future day, 3437 Credit given on a payment in ad- vance, for a larger sum than was paid 3456 Defendant confesses taking usury, 3392 Exchange of notes to enable one party to sell the others . . . 3459 of notes with commission of 2^ per cent 3462 Expense incurred in procuring money 3411, 3412 Express agreement for ten per cent. 3467 Fact that debtor voluntarily paid more than six per cent. . 3400-3402 Forfeiture of legal excess in inter- est , 3392 568 INDEX TO CASES. PARAGRAPH. Forfeiture of usurious debt to School Fund 3497 ' For value received I promise to pay twelve per cent." . . . 3404 Giving a note for a larger amount than the party discounting it expected to advance . . . 3440 Greater rate of interest taken by a N. B. 3498 Jf principal and interest are both put at hazard 3428 Interest in excess of six but not ex- ceeding ten .... 3419-3422 paid at the rate of one dol- lar per day, for $l,ooo . . . 3495 required to be paid quar- terly 3492 Lease was executed under a usu- rious agreement 3374 Loan affected through an agent who retains part of the loan, 3500, 3501 company, authorized to loan money on pledge, and charge interest for full month . . . 3439 made insurance company, on condition that borrower effect an insurance with them, 3438 of notes, at their nominal, value which are worth less . 3455 secured by pledge of stock, under agreement that lender shall have benefit of a rise in value 3434 Maker of an accommodation takes security 3461 Mode and manner in which to plead usury 3380 Money loaned on a note at eight per cent, on a note stated at six per cent. 3397 . loaned on condition that borrower would sell to lender real estate, etc 3431 paid usuriously may be re- covered 3477 Mortgages made under usurious con- tract 3509 Mortgagor paid a large commis- sion 3507 Must be shown that additional in- terest was paid or retained . 3410 JNote and mortgage given as se- curity for a loan of gold at a higher premium 3380 carried for two years at ten per cent 3403 dated on one day for a sum payable with interest from day previous 3395 discounted on the theory that 360 days make a year . . 3446 PARAGRAPH. Note given to agent for getting the maker a loan 3501 is the last of a series of usurious renewals .... 3463 payable " on demand with interest" 3506 tainted with usury trans- ferred to another 3512 taken directly from payee to pay a debt 3473 valid upon its face, calling for legal interest 3479 void for the excess of in- terest 3511 with interest from a day past 3444 without interest, discounted at more than legal interest . . 3516 Notes given in 1876, for excess of interest 3478 were given in part for usu- rious interest ...... 3414 Original taint of usury attaches to all consecutive obligations . . 3445 Place of payment inserted as a shift or device 3407 of payment not specified on bill 3405 Pleading under a charge of usury, 3432 Purchase of accommodation paper at gross sum 3452 of land for $ 12,000 instead of as first agreed upon at #10,000 3436 Purchasing property before time of redemption expired .... 3484 Reducing claim to sum loaned, with legal interest thereon . . . 3383 Regulating rate of interest is merely a penal law 3386 Renewal of a usurious by giving one payable to third party, 3470, 3471 Re-sale resorted to, as a cover for usury 3435 Reservation of interest, payable quarterly, upon a sum payable at future day 3441 Right to borrow money within proscribed limits 3490 Sale made under a mortgage, whether contract was usurious or not 3488 Sale of cotton at price beyond its real value 3487 Selling lots to buyer at fictitious value to a borrower of money 3415, 3416 note payable at future day, with interest 3457 Suit by a N. B. upon a bill of ex- change, defence usury . . . 3442 INDEX TO CASES. 569 PARAGRAPH. Suit by a N. B. upon a bill of exchange 3389 Surety cannot avail himself of usu- ry, paid by his principal . . 3381 Taint of usury being irradicated by changing securities .... 3423 Taking more than lawful interest by third party 3394 more than legal interest by mistake 3427 of a premium on making a loan security, bearing interest, and giving checks for amount payable in six months . . . 3448 Tendering legal interest by the debtor 3482,3483 Two persons exchange notes to raise money 3458 Unconditional repeal of usury laws in Me 3503 Under former statute, usury was a forfeiture of all interest . . . 3392 Unlawful or corrupt intent required to render a transaction usurious, 3426 Unless there is a law limiting the rate of interest 3405 Usury affects only the distribution of proceeds 3393 Usurious agreement must be proved as laid 3465 Usurious brokerage taken by third person, whether an agent or not 3424 contract must be described, 3390 contract whether made or implied 3398 interest carried into a gen- eral account 3502 - interest paid are payments on principal 3489 interest reserved or charged 3425 on a note bill discounted by a N. B Usury, as a defence, must be speci- ally pleaded 3472 is a defence personal to par- ties to the contract .... 3475 set up against negotiable paper 3485 Was a contract for a loan and not a partnership 3468 What constitute usury, and a cor- rupt agreement When a cover for usury, or where an honest contract .... judgment cannot be reduced, Where a party has failed to avail himself of the plea of usury . 3499 a party overdraws his ac- count with a bank , 3399 3449 3466 3510 PARAGRAPH. Where holder of a note had no knowledge of the usury or ex- tension 3397 interest is not recoverable by suit 3508 VENDOR, Page 482. Giving a receipt or taking a note, with security 3526 Guaranteeing good title to property sold J . . . 3519 Must be performed on the day named 3528 Note for the purchase money of land 3522 Person having discovered a flaw in title to land 3523 Purchaser enjoying property for ten years 3530 Rescinding contract for fraud . . 3529 Same order for goods is accepted by vendor 3527 Saying or doing anything tending to impose on the other . . . 3531 Title does not vest until delivery of deed 3525 Vendor of land retains legal title until payment is made . . . 3521 Vendor's lease on real estate for pur- chase money 3520 WAREHOUSE RECEIPTS, Page 483. May sell or dispose of property in a warehouse in the absence of a receipt 3534 No one can obtain the property but the holder of a receipt . . 3535 Receipt issued for goods not in warehouse 3533-3536 Right to pledge or pawn goods as a security for the payment of a debt 3536 WARRANTY, Page 484. Absence of the seals being a breach of warranty 3541 Bank cannot be charged with a liability it did not assume, 3544, 3545. Breach of warranty may be set up as a defence 3538 Contract failing to warrant quality, 3537 Goods, though inferior to stipulation are retained by the buyer . . 3548 Set-off consisting of money paid in excess of legal interest. . . 3546 Vendor impliedly warrants goods sold by him, without any op- portunity to inspect them . . 3550 570 INDEX TO CASES. PARAGRAPH Warrantor is bound by printed sig- nature which he adopts as his, as fully as if written .... 3553 Warranty implied on part of vendor of a bond or other security . 3539 -, of title is implied in a con- tract of exchange as in a con- tract of sale 3547 Where goods are warranted to come within a specific descrip- tion 3540 When the vendee may receive and retain goods and recoup dam- ages 3542, 3543 PARAGRAPH. Words " grant " and " demise " in a lease for years create an im- plied warranty of title . . . 3552 WRITTEN INSTRUMENTS, Page 486. Courts interpret written instruments according to the custom of their use 3554 Promise made by one party without a corresponding obligation or promise 3555 When a contract has two interpre- tations . , 3554 TABLE OF CASES CITED IN MONROE'S DIGEST. Abbott v. Fisher. v. Shephard. Abell v. Harrington. Acer v. Hotchkiss. Ackley v. Westervelt Ackman v. Harsell. Acton v. Harlon. Adams & Co. v. Daunis. Adams v. Carroll & Co. Adee v. Bigler. Adm'r of D. R. Moore v. Ulster B'kg Co. JEtna. Bank v. Winchester. ./Etna Ins. Co. v. Alton City Bank. Agricultural Bank v. Robinson. Ahern v. Goodspeed. Ainsworth v. Miller. Akerman v. Hunsicker. Albany City Sav'gs Inst. v. Burdick. Albany City Nat. B'k v. Hunsicker, et al. Albert G. Brice v. John A. Watkins, et. al. Aldrich v. Ames. Albert, Sheriff, v. Lindan. Alexander v. Alexander. v. Burchfield. v. Lewis, v. Shonyo. Allen v. Bratton. v. Brown. v. Carr. v. St. Louis Bank. v. The Merchants' Bank. v. Williamsburg Savings Bank. v. Woonsocket Co. Allen & Co. v. Georgia Nat. Bank. v. Ferguson. Aller v. Alien Allison v. Thomas & Rosenfeld. Allshouse v. Ramsay. Atlantic Bank v. Merchants' Bank. Alt v. Meyer. Allum v. Perry. American Bank v. Adams. American Bible Soc. v. Wells. American Express Co. v. Haire. American Nat. Bank v. Wheelock. American Law Register. Ames v. Bates. v. Meriam. Anderson Ex'r v. Baker. Anderson v. State. v. Phi la. Warehouse Co. v. Read. v. Schenk. v. State. Andreas Richoux v. Mayer Bros. Andre v. Bodman. Andrus v. Vreeland. Angle v. Northwestern Mutual Life Ins, Co. Anthony v. Capel. v. Wood. Appeal First Nat. Bank. Appeal of Lane, et al. A. & P. Tel. Co. v. B. & O. R. R. Co. Argall v. Jacobs. Armour v. Pecker. Arnold v. Potter. Arnot's Adm'r v. Symonds. A. Rochezeau, et al. v. Wm. Mcjones, etal. A. S. Bank v. Savery. Ashhurst v. Field. Ashlin v. Lee. Ashton's Appeal. Ashuelot R. R. Co. v. Elliot. Atkins v. Saxton. Atlantic Ins. Co. v. Manning. At. State Bank v. Savery. Attorney-General v. Simonton. Auger v. Conture. Aultman v. Mallory. Aurora Agr'l & Horticulture Society V. Paddock. Aurora City v. West. Au Sable River Broom Co. v. Sanborn. Ausley v. Patterson. Austin & Ellis, Ag'ts v. Cox, et al. Austin v. Fuller. Averill v. Hedge. Avery v. Bushnell. (571) 572 TABLE OF CASES CITED. Avery v. Easter. Ayer v. Duncan. Aylwin v. Cruttenden. Ayrault v. Pacific Bank. Ayres v. Watson. Backhouse v. Charlton. Bacon v. Van Schoonhoven. Bailey, Collector v. Clark. Bailey, et al. v. Kennedy, et al. Bailey v. Railroad Company. Bake man v. Pooler. Baker v. Armstrong. v. National Ex. Bank, v. Garvey. Baldwin v. Bank of Newbury. v. Hale. Ball v. Slaften. Balto. & Ohio R. R. Co. v. Wilkens. Bancher v. Harrington & Co., et al. Bank v. Graham. v. Hartman. v. Lanier. v. Pettit. v. Raymond. v. Teeters. v. Tennessee. v. Weyland. Bank Commissioners v. Bank of Buffalo. Bank of America v. Senior. v. Shaw. Bank of Auburn v. Putman. Bank of Augusta v. Earle. Bank of Bethel v. Pahquioque Bank. Bank of British Columbia v. Page. Bank of California v. Northam. Bank of Columbia v. Hagner. v. Maryland. Bank of Commerce Appeal. Bank of Kentucky v. Schuylkill Bank. Bank of Mendocino v. Chalfant. Bank of Michigan v. Ely. Bank of Monroe v. Gifford. Bank of Montreal v. Munster Bank. Bank of New Orleans v. Smith. Bank of Old Dominion v. McVeigh. Bank of Owensboro v. Western Bank. Bank of Redemption v. Boston. Bank of Republic v. Millard. Bank of St. Albans v. Farmers' Bank. Bank of the Metropolis v. N. England Bank. Bank of Tennessee v. Alexander. Bank of Utica v. Goddard. v. Phillips. v. Wager. Bank of United States v. Davis. v. Dunn, v. Goddard. v. Waggner. Bank of Washington v. Triplett Barber v. Burrows. Bardin v. Stevenson. Barnard v. Gaslin. Barnes v. DeFrance. v. Ontario Bank. Barnet v. Young. Barney v. Worthington. Barrett v. Charleston Bank. Barrings v. Dabney. Barr v. Collier. Bartlett, et al. v. Elaine. Bartlett v. Hawley. Bartel v. Lope. Barthe v. Armstrong. Bartley v. City of New Orleans. Bartow v. People. Barwick v. The English Joint Stock Bank. Basehore v. Rhodes. Baskdull v. Herwig & Smith. Bassett v. Hawk. Bates v. Leclair. v. Wiggins. Batesville Institute v. Kauffman. Batt v. Chase. Baum v. Tonkin. Baxter v. Robinson. Bayliss v. Cockcroft. Bayly & Pond v. Stacey & Poland. Bayard, et al. v. McGraw. Beard v. Westerman. Beattie v. Ebury. Beaubien v. Husson. Beaudry v. Laflamme. Becker v. Hallgarten. Bedle v. Wardell. Beebe v. Pyle. Beeson v. Lang. Bellemue v. Bank of United States. Bellinger v. Kitts. Bell v. Morrison. Bendey v. Townsend. Ben. Gerron v. G. W. & G. M. Hamilton. Bently, et al., Executors v. Lamb. Bennett v. Austin. Bd. Ed. v. Fonda. Bennett, W. W. v. J. W. Fuller. Berian v. McCorkill. Bernet v. Dougherty. Bessette, et al. v. La Banque du People & Quevillon. Bestles v. Nunan. Best v. Hoppie. v. Thiel. Bevier v. Covell. Bickford v. First Nat. Bank. Bickett v. Taylor. Biddle v. Wendell. Biebinger v. Continental Bank. Bierne v. Brown's Adm'r. Bigger v. Bovard. Bigler v. Waller. Bigly v. Powell. Billgery v. Ferguson. TABLE OF CASES CITED. 573 Billings v. Robinson. Bisbee v. Taft. Bishop v. O'Connell, et al. v. Small. Bissell v. Heyward. v. Saxton. Black v. Bachelder, et al. v. Duncan. v. Dressell's Heirs. v. Ruhlman. Blackwood v. Chinic. Elaine v. Bourne. Blair & Hoge v. Wilson, Blake v. Hall. v. National Bank. Blakely v. Johnson. Blakeney v. Goode. Blakeslee v. Rossman. Blanchard v. Blanchard. Blandins, Adm'r v. Wade. Blease v. Garlington. Blevins v. Rogers. Bliss v. Allard. v. Nichols. Blodget v. Blodget. Blodgett v. Weed. Block v. Duncan. Bloom v. Helm. Bloom & Co. v. Kern. Bloom v. Rensselaer. Blonin v. Liquidators of Hart & Hebert. Blount v. Hawkins, v. Norris. Boches v. Hathorn. Boddington v. Schleuber. Bohn v. Dunphy. Boisgerard v. N. Y. Banking Co. Boit & M. McKenzie v. Carr. Blonin v. Liquidations of Hart & Hebert. Bolton v. Richard. Boardman v. L. S. & M. S. R. R. Co. Bonsall v. Conley. Boogher v. Maryland Life Ins. Co. Boone v. Citizens' Sav'gs Bank. v. Pierpont. Boothbay v. Giles. Booth v. Tierman. Bossange v. Doty. Boston & Maine R'y v. Bartlett. Boston and Sandwich Glass Co. v. Moore. Boston Ice Co. v. Potter. Bostwick v. Duncan, Johnston & Co. Bosup v. Nininger. Bottomley v. Goldsmith. Boullt v. Sarpy. Bowen v. Beck. v. School District, Etc. Bowling v. Arthur. Bowzi v. Stewart. Box v. The Provincial Ins. Co. Boyce v. Trustees of the M. E. Church. Boyd, et al. v. Kienzle, et al. Boyd v. Emerson. Bradshaw, et al. v. Bradbury. Bradley v. Parks, et al. Bradstreet v. Everson. Bozeman, et al. v. Browning, et aL Bradford v. Pauly, et al. Bragg v. Morrill. Braley v. Byrnes. Brammerman v. Jennings. Brandon Mfg Co. v. Morse. Brasted v. Sutton. Bray v. Black. Breathuit v. Rogers, Adm'r of McLendon. Brent & Lees. Brewster v. Bours. v. Carnes. v. Wakefield. Brewster, et al. v. Stratman. Brice, Albert G. v. John A. Watkins, et al. Brick & Co. v. Merch. & Mech's Ins. Co. Bridgeport v. Housatonic R. R. Co. Bridges v. Robinson. Bridget Reardon v. Daniel Moriarty, et aL Brigg v. Hilton. Brill v. Turtle. Brinkmeyer v. Helbling. Brinkerhoff v. Bostwich. Britton v. Augier. Brobst v. Brock. Brodie & King v. Watkins & Wife. Bromley v. Com. Nat. Bank. Brooklyn St. Trans. Co. v. City of Brooklyn. Brown v. Abington Sav'gs Bank. v. Jodrell. v. Kiefer. Broadway Savings Bank of St. Louis v Edvorster, et al. Brooks v. Avery. Brooks, et al. v. Clegg. Brooks v. Cutler. v. Holland. v. Martin. v. Robinson. Brown, Adm'r v. Brown. Brown ads. Hendrickson. Brown, et al. v. Broach. Brown v. Mclntosh. v. Prophit. v. Second Nat. B'k of Erie. v. Smith. v. Spofford. Browne v. Steck. Brown v. Straw. v. Turkington. v. Van Trees. Brugman, et al. v. McGuire, et al. Brumby, et al. v. Barnard, Agent. . Brummagin v. Tallant. Brunswick v. Birkenbend. Brush v. Barrett. Bruyn v. Receiver. Bryan v. Tooke, et al. 574 TABLE OF CASES CITED. Bryant v. Booze. Buchanan Oil Co. v. Woodman. Buckley v. Seymour. Buckner v. Mcllroy. v. Sayre. Budgett v. Jordan. Bullard v. Bank. v. Randall. Bundy. II Ind. 398. Bunker v. Paquette. Bunting v. Jones. Burnap v. Nat. Bank. < Burnes v. Scott. Burford v. Crandell. Burkham v. Mastin. Burnett v. Caldwell. v. Monaghan, et al. Burnham v. Comfort. v. Gullentine. Burnhisel v. Firman. Burrell v. Bush. R. R. Co. Burroughs v. Wilson. Burton & Co. v. Hansford, et al. Bush v. Barfield. v. Lathrop. Butler v. Maples. Buttes v. Houghwont. Butt v. Ellett. Cadle, Receiver, etc. v. Tracy. Cady v. Goodnow. Cain v. Robinson. Cagwin v. Town of Hancock. Calahan, et al. v. Babcock, et al. Callahan v. Bank of Kentucky. Caldwell v. Merchants' Bank. v. Nat. Mohawk Valley Bank. Cameron, et al. v. Merchants' & Mf'gers' Bank. Catnmack v. Lewis. Campbell v. Hooper. v. Mut. Life Ins. Co. v. Nat. Life Ins. Co. Canadian B'k of Commerce v. Davidson. Canady v. Krum. Cannody v. Powers. Cannon v. Trask. Garden, et. al. & Finlay, et al. Carey, et. al. v. Brown. Carr v. Thompson. Carmichel v. Latimer. Carpenter v. Jones, et al., Adm'rs. v. Longan. v. Rommel. Carroll v. Kershner. v. Mullanphy. Carrol, et al. v. Green, et al. Carry v. White. Carter v. Wake. Cartier v. Pelletier. Carter v. Thomas. Case v. Hawkins. Casey v. Calli. v. Cavaroc. v. Nat. Bank. Cass v. Higenbotam. Cassidy v. Mansfield. Castle v. Lewis. Castwell, Adm'r v. Perkins. Cattson, et al. v. The First Universal So- ciety. Cauthorn v. Harkness. Cayuga Co. Bank v. Hunt. Cecil & Perry v. Hicks. Central Law Journal. Cen. N. Bank v. Kohner. v. Phelps. v. Pratt. Centre v. McQuesten. Central Railroad & Banking Co. v. George. Chaffraix & Agar v. John B. Lafitte & Co. v. Price, Hine and Tuppe. Chambers v. Miller. Champion v. Gordon. Chapman v. McFie, et al. Chapmon v. P. N. Bank. Chandler v. Monmouth Bank. Charter Oak Life Ins. Co. v. Smith, et al. Chase v. Lord. v. Second Ave. R. R. Co. Chateau v. Webster. Chatham Nat. Bank v. Schley, guardian. Chew v. Ferrari. Chicago v. Sheldon. Chicopee Bank v. Philadelphia Bank. Chiles v. Nelson. Chipman v. Foster. Christenson v. Eno. Christman v. Tuttle. Christophers v. Garr. Christopher v. Mayor. Chubb v. Upton. Church v. Simmons. Cisne v. Chidester. City National Bank v. Goodrich, v. Phelps. City of Lexington v. Butler. City of Central v. Wilcoxen. City of New Orleans v. N. O. Canal & B'k'g Co. City of Petersburg v. Applegrath's Ad. City, The v. Lamson. Citizens' Nat. Bank v. Green. Citizens' Bank v. Howell. Citizens' Nat. Bank v. Richmond. Claflin & Co. v. Bryant. Claflin v. Farmers' and Citizens' Bank. Clarke v. Esson. v. Lourie. v. Nat. Bank of Albion. v. Stanley. Clark v. Allen. TABLE OF CASES CITED. 575 Clark v. Dinsmore. v. Hough ton. v. Metropolitan Bank. Clarihue v. Morris. Clark v. Sheehan. v. Tarbell. Ciaremont Bank v. Wood. Clary v. Smith. Clayes v. White. Clay v. Ray. Claverie v. Gerodias. Clawson v. McCune's Adm'r. Clements v. Macheboeuf, et al. Clendenin v. Southerland. Cleveland v. Loder. v. O'Neil. Clews v. Bank of N. Y. Nat. Banking Co. Clopton v. Spratt, et al. Close v. Holmes. Cloyes v. Chapman. Cliquot's Champagne. Clubb v. Hutson. Clyde v Rogers. Coats, Assignee, Etc. v. Donnell. Con. S. & A. Ass'n v. Read. Cook v. Tullis. Corbett v. Underwood. County of Moultrie v. Rockingham Twp. Sav'gs Bank. Coate v. Bank of U. S. Cobb v. Beake. v. Gray, v. Knapp. Cobett v. Underwood. Coburn v. Goodall. v. Wheelock. Cobyhausen v. Judd, et al. Codd v. Rathbone. Codwise v. Hacker. Cochecho Nat. Bank v. Haskell. Cockle, et al. v. Flack, et al. Cochran v. Case. Cochran & Fulton v. Ripy, Hardie & Co., et al. Cochran v. Ocean Dry Dock Co. Coe v. Cassidy. Coffin v. McLean. Cogswell v. Hayden. Cohen v. Hale. Cahoon v. Coe. Colby v. Bunker. Cold v. Root. Coleman's Ex'r v. Meade & Co. Coleman v. Smith. Collins v. Bank. v. Bradshaw. v. Gilbert. v. Martin. v. Riggs. v. Paris. Comegys v. Clarke & Comegys. Comby v. Waters, et al. Commercial Bank v. Heilbronner. Commercial Nat. Bank v. Gorham. Commercial Bank v. Pfeifler. Commercial Bank of Penn. v. Union Bank. Com'rs Arapahoe Co. v. Cutter. Commissioner v. McCormick. Comm'rs of Marion Co. v. Clark. Commonwealth v. Adley. v. Barry. v. Evans. v. McCrosius. v. Mech's Nat. Bank. Comm., The v. Pitts., Fort W'yn & Chi. R'way Co. Commonwealth v. Wallace. v. White. Comstock v. Hier. v. Tupper. Confederate Note Case. Conn., et al. v. Penn. Connecticut v. Jackson. Connecticut Trust Co. v. Melendy. Conrad, et al. v. Lee Blane, Sheriff. Conrad v. Waples. Continental Nat. Bank v. National Bank. v. Townsend. Convey v. Sheldon. Corbett v. Schumacker. v. Underwood. Cordell v. First Nat. B'k of Kansas City. Cooke, David G. v. Hugh and Andrew Allison. Cooke v. State Bank of Boston. v. State Nat. Bank. Cook v. Baldwin. v. Basley. v. Clark. v. Citizens' Mutual Ins. Co, v. Corthell. v. Fellows. v. Gilman. v. Ludlow. v. Nayer. v. Oxley. v. Tullis. Cooley v. Broad. Cooperative Ass. v. McConnico. Cooper & Co. v. Coates & Co. Copcutt, et al. v. McMasters. Copp, et al. v. Lowry & Co. Corbitt v. Salem Gaslight Co. Corning v. Ludlum. Cornish v. Niagara Dist. B'k. Cornthwaite v. The First Nat. Bank, Etc. Cortner, et al. v. Walrod. Coster v. Neal. Cotton v. Hiller. Coupal v. Coupal. Courrier v. Ritter. Cowan v. Turgeon. Cowdrey v. Vandenburgh. Cowee v. Cornell. 576 TABLE OF CASES CITED. Cowell v. Colorado Springs Co. Cowing v. Altman. Cowles v. Marble. Cox v. Westcoat. Coyne v. Weaver. Coykendall v. Constable. Coyle v. B. & O. R. R. Co. Craig v. Young. Craighead v. Peterson. Crampton v. Zabriskie. Crane v. Barry. Cranson v. Smith. Crawford v. Roberts. Cregin v. Brooklyn. Crim v. Starkweather. Crippen v. Heermance. Crocker v. Colwell. v. Whitney. Cromer v. Cromer's Adm'rs. v. Platt, et al. Cromwell v. County of Sac. Crook v. Rindskoff. Crooks v. Tully. Crosby v. Buchanan. Cross v. Cross. Crossley v. Moore. Crothwait & Co. v. Missner. Crowther v. Crowther. Cullen v. Thompson. Cullmans, et al. v. Lindsay. Culver v. Badger. Cumb. Bone Co. v. Atwood Lead Co. Cummings v. Saux. Cundy v. Lindsay. Cunningham v. Jones. Currie v. Misa. Curtis v. Inneritz. v. Leavitt. v. Sprague. v. Valiton. Cuts v. Guild. Cutting v. Marlor. Cuyler v. Ferrill. Dacy v. New York Chem. MPg Co. Daggett, et al. v. Johnson. Dair v. United States. Dale v. Peirce. Dalton v. Cass. v. Smith. Daly v. Graham. v. Butchers' and Drovers' Bank. v. Proetz. Dambmann v. Schulting. Danforth v. Charles, et al. v. Pratt. Danzeisen's Appeal. Dare v. Humphry. Darling v. Brown. Darst v. Gale, et al. Dartnell v. Howard. D. & T. Co. v. Cornforth. Davenport v. Kleinschmidt. v. Whisler & Shields. Dasylva, et al. v. Dufour. David G. Cooke v. Hugh and Andrew Allison. Davis v. M. Arthur. v. Barger. v. Brown. v. Caverly. v. Clark. v. Duncan. v. Essex Baptist Society. Davis, et al., in re. and Muir v. Chamber- lin, et al. Davis v. Leopold. v. Longsdale. v. Marx. v. Neligh. Davis, Receiver of Ocean Nat B'k v. Weed. Davis v. Smith. v. Toulmin. v. Willis. Davison v. Davis. Davidson v. Lanier. Dawes v. Harness. Dawson v. Goodyear. v. Real Estate Bank. Day v. Bach. Day v. Schulthorpe. Dayton, etc., Turnpike Co. v. Coy. Deason v. Taylor. De Camp v. Hamma. Decker v. Decker. De Gere v. Healy & Berry. De Haven v. Kinsin^gton Bank. De Lavallette v. Wendt. Delaware Railroad Tax. Demorest v. Inhabitants of New Barba- does. Denew v. Davenell. Denithorne v. Hook. Denton v. Nauny. De Poret v. Gusman. De Pusey v. Du Pont, et al. Deutsche, et al., use of Kanders v. Bond. Develing v. Ferris. Devoe v. Moftatt. De Witt v. Van Sickle. De Wolf v. Murphy. v. Sprague M'f g Co. Dickinson v. Bank, v. Valpy. Dillenbeck v. Dygert. Dinsmore v. Savage. Doanes v. Phoenix Bank. Dobbins v. Parker, et ux. Dobell v. Loker. Dobson v. Chambers. Dodd, Brown & Co. v. John Bishop & Co., et al. Dodd v. Denny. TABLE OP CASES CITED. 577 Dodge, et al. v. Freedmans' Sav'gs & Trust Co. Dodge v. Nat. Ex. Bank. Doe v. Thorn. Dod v. Fourth NaL Bank of N. Y. Dogier & Co. v. Barnett & Co. Dollner, Potter & Co. v. Snow, et al. Donaldson, Assignee v. Farwell, et al. Donaldson v. Cothran, Adm'r, et al. Donellan v. Hardy. Doolittle v. Ferry. Doran v. Smith. Dorchester and Milton B'k v. New Eng'd B'k. Dorchester, etc., Bank v. New England Bank. Dorsey v. Abrams. Doster v. Brown. Dougherty v. Deeney. Douglas v. Cruger. Dorwin, et al. v. Thompson. Downes v. Madison Co. Bank. Downey v. Whittenberger. Dows v. Kidder. v. Swett. Drake v. Root. Dresser v. Missouri & Iowa R'y Con. Co. Driggs v. Moore. Droner v. Madison Co. B'k. Drovers Nat. B'k of Union Stock Yard v. Anglo-Am. Packing and Provision Co. Dryer v. Mercantile Bank. Duble v. Balls. Duchesney v. Evarts. Dugway v. Senecal. Duncan v. Brennan. v. Louisville, etc. Duncomb v. Brighton Club & Norfolk Hotel Co. Dun ford v. Weaver. Dunham v. Dey. v. Gould. Dunklin v. Kimball. Dunn v. Dunn. Dunlap's Ex'r v. Shanklin. Dunning v. Cresson. Dunn v. Record. v. West. Dupuis v. Marron. Durgy Cement & Umber Co. v. O'Brien. Duryee v. Dennison. v. Lester. Dussol v. Bruguiere. Dutchess Co. Ins. Co. v. Ilachfield. Eager v. Crawford. Earp v. Richardson. East Haddam Bank v. Scoville. East River Nat. Bank v. Gore. East River Bank v. Gedney. Eastwood v. Kennedy. Eastwood v. Kenyon. Eaton C. & B. Co. v. Avery. Eaton v. Whitney. Eborn v. Zempelman. Ecton v. Harlon. Edenfield v. Canady. Edison v. Huff, et al. Edmonds v. Sheahan. Edward J. Gay & Co. v. Crichlow & Don- alson, et al. Ehrichs v. De Mill. E. H. Farrar v. Stephen Duncan. Eldred v. Malloy. Eliason v. Henshaw. Ellicott v. Nicols. Elizabeth City v. Force, et al. Elkin v. Green. Elwood v. Deifendorf. E. Marqueze & Co. v. Fernandez & Co. Emigrant Ind. Sav'gs Bank v. Goldman. Emory v. Hobson. Engler v. People's Fire Ins. Co. Ensight, et al. v. Ellison. Eg. L. As. Soc. v. Bostwick. Escott v. Escott. Erie Co. Sav'gs B'k v. Cost, v. Roop. Ernst v. Steckman. Espy v. Bank of Cincinnati. Estate of Galvin. Etheridge v. Gallagher. Ettrier v. Thomas. Eureka Co. v. Bailey Co. Evans v. Chapel. v. Cross, et al. v. Gale. Evans v. Lewis. v. Trueman. Evansville Nat. Bank v. Kaufmann. Everman & Co. v. Robb. Evertson v. Nat. B'k of Newport. Exchange Bank v. Butner & Edgeworth. Exline v. Lowery, et al. Ex parte Pye. Ewingv. Howard. Fabens v. The Mercantile Bank. Fairchild v. Lynch. Falkland v. St. Nich. Nat. Bank. Falls v. Gaither. Fanson v. Linsley. Fargo & Co. v. Ames, et ux. F. and M. Nat. B'k v. Lang. Farmers' Bank v. Gilpin, et al. F. & M. Nat. Bank v. Hazeltine. Farmers' and Mechanics' B'k v. Baldwin. v. B. and D. Bank. F. & M. Nat. Bank v. Lang. Farmers' & Mechanics' Nat. B'k v. Dear- ing. Farmers' & Mechanics' Nat. B'k v. King. 578 TABLE OF CASES CITED. Farmers' & Mech. Bank v. Parker. v. Polk, et al. Farrell v. Lovett. Farrington v. Hodgdon. Fassin v. Hubbard. Fatman v. Leet. Faulkner v. Bailey, v. Hart. Faust v. Haas. Favvcett v. Freshwater. Fay v. Gray, v. Fay. Feeter v. Weber. Feldman v. Beier. Fellows v. Am. Life Ins. & Trust Co. Ferguson v. Crawford, v. Hubbell. Feutriss v. The State, ex rel., etc. Field v. Sherrill. Finnell v. Brew. First Nat. B'k of Charlotte v. Nat. Ex. B'k of Baltimore. First Nat. Bank of Cincinnati v. Kelly. First Nat. Bank v. Fourth Nat. Bank. First Nat. B'k of Hightstown v. Chris- topher. First Nat. B'k of Jersey City v. Leach. First Nat. Bank of Lacon v. Myers. First Nat. Bank v. National Marine B'k. First Nat. B'k of Lyons v. Ocean Nat. Bank. First Nat. Bank of Montpelier v. Hub- bard, et al. First Nat. B'k of Salem v. Almy. First Nat. B'k of St. Paul v. Nat. Marine Bank of St. Paul. First Nat. B'k of Springfield v. Dana. First Nat. B'k of Sturgis v. Reed. First Nat. Bank of Rochester v. Pierson. First Nat. Bank v. Tisdale. First Nat. Bank of Toledo v. Shaw. First Nat. B'k of Trenton v. Gar. First Nat. B'k of Washington v. Whitman. First Nat. Bank v. Wood. Fisher v. Apollinaris Company, v. Bidwell. v. Bishop. Fish v. New York Water Proof Paper Co. Fishkill Savings Inst. v. Nat. Bank of F. Fitch v. Jones. Fitchburg Mut. Fire Ins. Co. v. Davis. Fitchburg Sav'gs B'k v. Rice. Fitch v. Snedaker. Fitzgerald v. Barker, v. Blocher. Fitzimmons v. Chapman. Flanders & Huguenin v. Maynard. Flato v. Mulhall, et al. Fleirs, et al. v. Hellerg. Fletcher v. Carpenter. v. Fletcher. v. Holmes. Florence v. Drayson. Fogg v. Lawry. Follett, John F. et al. v. Spencer Field, President, et al. Foley v. Rose. Forbes v. San Rafael T. Co. Force v. Elizabeth. Ford v. Joyce. Fordham v. Hendrickson. Foss v. Lowell Sav'gs Bank. v. Nutting. Foster v. Essex Bank. v. Wightman. Fouch v. Wilson. Foulks v. Rhodes. Fox v. Hudon. Fowler v. Scully. Fraley v. Bentley, et al. Francis v. N. Y. & B. El. R. R. Co. Frank v. Chemical Nat. Bank. Frankfort Bank v. Johnson. Franklin B'k v. Stewart. Franklin L. Ins. Co. v. Courtney. Frantz v. Garrison. Frazer's Adm'rs v. Frazer & Co. Frazer v. Jordan. Fredenburg, Adm'r v. Turner, et al. Fredericks v. Davis. Freehold Permanent Bil'g & Sav'gs v. Choate. Freeman v. City of Boston. French v. Irwin. v. Motley. v. Shoemaker. Freund v. Im. & Traders' Nat. Bank. Frisbie v. Moore. F. Savings Inst. v. Nat. Bank of F. Front St. M. & O. R. R. Co. v. Butler. Fox v. Turner. Frost v. Kopp. Frow, Jacobs & Co.'s Estate. Fuller v. Eddy. Fulton Bank v. N. Y. and Sharon Canal Co. Furr v. Morgan. Gale v. Morris. Gallatin County v. Beattie. Galveston Co. v. Gorham. Galveston Railway v. Cowdrey. Gammell v. Parramore. Garden, Exr's v. Derrickson. Garnett v. McKewan. Garrity v. Wilcox, et al. Gary, Hudson & Co. v. Jacobson. Gass, et al. Appeal. Gaston v. Am. Ex. Bank. Gate v. Patterson. Gaty v. Holliday. Gault, et al. v. Wright, et al. Gauss v. Hobbs. Gavagan v. Bryant, et al. TABLE OF CASES CITED. 579 Garvin v. Wiswell. Geihard v. Boatmen's Sav. Inst. Gelpcke v. City of Dubuque. Genesse River Nat. Bank v. Mead. George v. Grant. German Sav. Bank v. Habel. Gerome v. Com. Exchange Bank. Gerould v. Wilson. Gerrish v. Black. v. Glines. Gerron v. Pool. Getchell v. Chase. Gibson, et al. v. .MoflFat & Young. Gibson v. Hough & Sons. v. Lenhart, Receiver. v. Nat. Park Bank. v. Warden. Giddings v. Butler. Giles v. Ash. v. Perkins. Gillaspy v. Peck, et al. Gillet v. Campbell. v. Phillips. Gillett, et al. v. Gaffney, et al. Gilson v. Martin. v. Stevens Machine Co. Giovanni v. First Nat. Bank. Girard Bank v. B'k of Penn Township. Glading v. Cuberly. Gleason v. Hanshaw. v. Saunders. v. Wright. Glenn, et al. v. Johnson, et al. Gloucester Bank v. Salem Bank. Goddard v. Foster. v. Sawyer. Golding v. Waterhouse. Goldrick v. Bistol Co. Sav'gs Bank. Goodman v. Eastman. Good v. Martin. Goodnow v. Warren. Goodwin v. Conklin. v. Nickerson. Gordon v. Appeal. v. Hardin. v. United States. Goss v. Lord Nugent. Gottlieb v. Hartman. Gould v. Belcher. v. Cayuga Co. Nat. Bank, v. Town of Oneonta. Graham v. First Nat. Bank of Norfolk. v. Yeomans. Grant v. Strong. Grand Rapids & Indiana R. R. Co. v. Joshua C. Sanders. Grass v. Funk. Gravett v. Malone. Gray v. Blarcom. v. Rollo. Greaves v. Gouge. .Great West'n Ins. Co. v. Pierce. Greenawalt v. Kohne. Greene v. Doane, et al. Greenfield Sav'gs B'k v. Stowell. Green v. Arnold. v. North Buffalo Town'p. Greenough v. McClelland. Greenshields v. Plamondon. Greenwood v. Schumacker. Greer v. Church & Co. Greer v. Woolfolk. Gregory v. Barrall. Grice v. Richardson. Grieb v. Cole. Griffey v. Payne. Griffin Assignee v. Rice. Griffin v. Kemp. v. Phillips. v. St. Louis Wine & Fruit Growers' Asso., et al. Griffin, et al. v. Johnson, et aL Griffith v. Grogan. Grimm v. Warner, et al. Grissler v. Powers. Grocers' Bank v. Neet. v. Penfield. Crocker, et al. v. Lowenthal, et al. Guernsey, et al. v. Rexford, Adm. Apllt Guernsey v. Miller. Guggenheimer v. Geiszler. Guill v. Guill. Gulke v. Uhlig. Gulliker v. Chicago R. I. & P. R. R. Co. Gulpin v. Page. Gunn v. Bolckow, Vaughn & Co. Guptill v. Home. Guptil v. McFee. Guernsey v. Rexford. v. Miller. G. W. Sentell & Co., in Liquidation v. Mrs. M. G. Kennedy and Husband. Hacker v. National Oil Co. Haddock v. Woods. Hade v. McVay, Allison & Co. Haffey v. Carey. Hager v. Union National Bank. Hahn v. Huber. Haley Ex'r v. Evans. Hale, et al. v. Pash's ex'r. Hale v. Hale. v. Rice. Haley v. M'ftrs Fire & Marine Ins. Co. Hallock v. Conn. Ins. Co. v. Com. Ins. Co. Halfpenny v. The Peoples' Fire Ins. Co. Hall, et al. v. Henderson. Hall v. Hickman. v. Kimmer. v. King. Hall, et al. v. Lanning, et aL v. Parker, et aL Hall v. Bradbury, et. al. 580 TABLE OP CASES CITED. Hall v. Brooks, v. Ditson. v. Spaulding. Hamilton v. Hooper, et al. v. Lycoming Mut. Ins. Co. Hamilton, W. E., et al. v. Nellie Hodges, Tutrix, et. al. Hamblen v. Rartigan. Hamill v. Thompson, et al. Hambleton & Co. v. Central O. R. R. Co. Hanauer v. Bartels. Handy v. Empie. Hancock v. Chicot Co. v. Wilson. v. Yunker, et al. Hannan v. Hannan. Hannon v. Houston. Hanson v. Donkersley. Hannum v. Richardson. Harding v. Colon. v. Tifft. Hardy v. Tilton. v. White. Hare v. Hentz. Haris v. Sterling. Harger v. Worrall. Harker v. Anderson. Harlan v. Sigler. Harley v. Eleventh Ward Nat. B'k. Harmon v. Hope. Harner v. Hathaway. Harper v. Harper. Harrington v. Brown. v. Wright, et al. Harris' Case. Harrison v. Glover. Harris v. Tumbridge. v. White. Hashall v. Farhall. Harshman v. Bates County. Hart v. Bullion, v. Carroll. v. Life Ass'n. Hartford Fire Ins. Co. v. Smith, et al. Hartford, Thayer & Co. v. Street. Hastings v. Clendaniel, et al. Hartman v. Banner. v. The Bank. Harwood v. Pearson. Hastings v. Drew. Hatch v. Cent. Nat. Bank. v. Coddington. Hausbrough v. Peck. Hauselt v. Vilmar. Hawley v. Bingham. Hazard v. Durand. Hayward v. Nat. Bank. Hayes v. Birks. Hayes, Adm'r v. Hayes. Haynes v. Rudd. Hays v. Closon. Hay v. S. F. Ins. Co. Healey, Berry & Co. v. Scofield. Hefferman v. Adams. Heffron v. Flanigan. Heidingsfelder, et al. v. Slade & Ether- edge, et al. Heist v. Hart. Helmer v. Krolick. Kelt v. Whittier. Hemphill v. Collins. Henault v. Thomas, et al. Henderson v. Ackelmire. Hennequin v. Clews. Henshaw v. Root. Hepburn v. Montgomery. v. School Directors of Borough of Carlisle. Herring, et al. v. Wickham & Wife, et al- Hibernian Bank v. Everman et al. Hibernia Nat. B'k v. Lacomb. Hilleary, et al. v. Thompson, et al. Hill v. Miller. v. Reifsnider. Higgins v. Rector. Higley & Co. v. Millard, et al. Hicks v. Randolph, et al. Himrod, et al. v. Baugh. Hoard v. Garner. Hobbs v. McLean. Hoey v. Jarman. Hoffman v. John Hancock Mut. Life Ins, Co. Hoffman & Co. v. Bank of Milwaukee. Holcraft v. Mellott. Holden v. New York & Erie Bank. Hogan v. Daniel & Thos. Healy. Hogarth v. Wherley. Holland v. Barnes, v. Clarke. v. Heyman & Bro. v. T. State of Florida. Holladay v. Daily. Holliday, et al. v. Union P. & B. Co. Holmes v. Brooks, v. Farris. v. Haggart. v. Holmes. v. Knights. Holt v. Ross. H. M. &. Co. v. Farrington. Home Life Ins. Co. v. Potter, et al. Homestead Co. v. Valley R. R. Hook v. Payne, v. Pratt. Hooper v. Citizens' Nat. Bank. Hooker v. Eagle Bank. Hoover Assignee v. Wiese, et aL Hope v. Dixon. Hopkins v. Forster. Home v. Rouquette. v. Sullivan. Horton v. Castner. Hosford v. Stone. TABLE OF CASES CITED. 581 Hostetter v. Hollinger. Hough v. Hill. House v. House. v. Vinton Co. Nat. Bank. Houseman v. Girard Building Ass. House v. Trustees of Schools. Houston v. Crutcher. Howard v. Johnston. v. Jones & Starke. v. Sabourin. v. Schmidt. Howall v. Adams. Howe, et al. v. Lemon, et ux. Howell v. Leavitt. Howe Machine Co. v. Farrington. Howes v. Woolcock. Hoyle v. Lowe. Holyford Mining Co. v. National Bank. Hoyt v. Godfrey. Howze v. Patterson. Hughes v. Bank of Somerset Hughes' Adm'r v. Harderty. Hughes v. Nelson. Hun v. Gary. Hunter v. Wood. Huntington v. Knox. Hunt v. Brewer. Hurd v. Brown. Hunt and Vaughn v. Shackelford. Hunt & Macaulay v. Mississippi Central R. R. Co. Hunt v. Spencer. Hubbard v. Mosely. Huffaker & Shy v. Nat. Bank of Monti- cello. Hull v. Belknap. Hulse v. Hulse. Hurd v. Kelly. Hursford v. Harned. Huston v. Plato. Hutchinson v. Blakeman. v. Thatcher. Hutchins, et al. v. Cohen & Cohen. Huyler v. Dahoney. Hyde v. First Nat. Bank. v. Lawrence. v. Planter's Bank. Hynes v. Dickinson, v. Patterson. Ind., Peru & Chicago R. R. Co., Reps. v. Tyng, Appeal. Indig v. Nat. City Bank. Tngham v. Primrose. Ingraham v. Disborough. In re Att'y Gen'l v. N. L. Ins. Co. v. Guard. Mut. L. Ins. Co. In re Beewith. In re Braclner. In re Dean. In re Frandsow. In re Friedman. In re Handlin. In re Louis. In re Manhat. Sav'gs Institute. In re Manuf. National Bank. In re Merrill. In re N. F. & W. R. Co. In re Rec'rship of Guarda. Sav'gs Inst. In re Ross. In re G. Savings Institution. In the matter of the assignment of Holt. Iron Mountain Bank v. Murdock. Irving Bank v. Wetherald. Irving Nat. Bank v. Alley. Irvine v. Irvine. Ivins v. Hines. Jacks v. Adair. Jackson, et al. v. Dodge. Jackson v. Ludeling. v. Twenty-third St. R. Co. v. Vickburg Co. J. D. Hill & Co. v. Mrs. Bourcier, et aL Jaeger v. Whitsett. Jagger Iron Co. v. Walker. Jacobs v. Turpin. Jacob C. Van Wickle v. Acie Landry. Jefferson v. Tunnell. Jellison v. Jordan. Jendevine v. Rose. Jeness v. City of Blakhawk. Jenks v. Jenks. Jenne v. Marble. Jernigan Ex'r v. Carter. Jerome v. McCarter. Jewell v. Bowman. Johns v. Bailey, et al. Johnson, et al. v. Berlizheimer. Johnson v. Kaiser. v. Geoffrion. v, Mayer. Johnston v. Allen. Johnston, et al. v. Patterson. v. Talley, et al. Johnston, Trustee, Etc. v. Wilson's Adm'r, et al. Jordan & Co. v. Anderson. Joseph v. Delisle. Joseph V. Ledoux, Adm'r v. John C. Burton, Mrs. Ledoux, Intervenor. Joliet Iron & Steel Co. v. Scioto Fire and Brick Co. Jones v. Graham. v. Backus, et al. v. Benedict. v. Hetherington. v. Holcombe. v. Howard. v. Stephenson. Jordon v. Wells. Jordan v. Wimer. Juniata Building Ass. v. HetzeL Judge, etc. v. Braswell & Co. 582 TABLE OF CASES CITED. Kaufman v. Broughton. Kahnweiler v. Anderson. Kansas Pacific R'y Co. v. Lundin, Admr. Kappes, et al. v. Geo. E. White. Kasson, et al. v. Noltner. Kay v. Fielding. Kearney v. Kinch, et al. Keene v. Beard. Keevil v. Donaldson. Keller v. Johnson. v. Orr. Kelly v. Christal. v. West. Kempner v. Churchill. Kenicott v. The Supervisors. Keighler v. Savage M'f g Co. Keim & Co. v. Avery. Kennedy v. Gibson, et al. v. Otoe Co. Nat. Bank, v. R. R. v. Skerr. Kent v. Quicksilver Mining Co. v. Walton. Kern v. Von Phul. Kerr, et al. v. Sharp. Kerr v. Steman. Kersey, as Assignee, etc., App. v. Don- nell, et al. Kershaw v. Kirkpatrick. Ketchum v. Cummings. Ketchun v. Duncan. Keystone Bridge Co. v. McCluney. Kidder, Assignee v. Norrobin, et al. Kidd v. McCormick. Kiel v. Reay. Kile, Sheriff v. Gielner. Kirby v. Mills. King v. Finch. Kilgour v. Gorkley. Kimball v. Coon Ex. Nat. Bank. King v. Bronson. Kingsley v. Vernon. Kinna & Ming v. Woolfolk. Kinsman v. Kershaw. Kitchell v. Mudgett, et al. Kittle v. Wilson. Kline v. Jewett. K. L. Ins. Co. v. Nelson. Kleinschmidt v. McAndrews. Knapp v. Mayor, Etc., of Hoboken. v. Roche. Knapp, et al. v. The Bank of Montreal. Knight v. Mann. Knox v. Baldwin. v. Comm'rs of Shawnee. v. Goodwin. Kochereau, et al. v. William Mcjones. Kock v. Block. Kouns v. Bank of Ky. Kountz v. Holthouse. Kraft v. F. P. & P. Ass'n. Kranest v. Timon. Krone v. Krone. Kruger v. Western Fire & Marine Ins. Co. Kyser v. Wells. Laclede Bank v. Schuler. Lafayette Sav'gs B'k v. St. Louis Stone- ware Co. Laing v. McCall. Lamb v. Paine, et al. Lamville Co. Nat. Bk. v. Bingham. Lanahan v. Scans. Lanes' Appeal. Lane v. Losce. v. Smith. Langford v. Freeman. Langton v. Harder. Langston Adm'rs v. Aderhold. Lannes v. Workingmen's B'k, et al. Lansing v. Low. Lanusse v. Baker. La Rocque, et al. v. Andre, et al. Lathrop v. Davenport. Lauback v. Lauback. Laubenheimer, App. v. McDermott. Laughlin v. Ihmsen. Lawrence v. Stonington Bank. v. Walmsley. Lawson v. McCartney. League v. Waring & Co. Leake v. Sutherland. Leal v. Walker. Leather Mf 'gr Bank v. Morgan. Le Banque Nat. v. Sparks. Lee v. Clark, Rosser & Co. Leese v. Martin. Leggett v. New Jersey Banking Co, Lehman, Abraham & Co. v. Levy. Lehow v. Simonton, et al. Lemay v. Williams. Lengsfield, et al. v. Richardson, et aL Lerry v. Lubman. Leslie v. Knickerbocker Life Ins. Co. Lester v. Gibbon. Lesure v. Norris. Lendt v. Town of Sharon. Levan's Appeal. Levering v. Washington. Levey v. Baker. Levi v. Earl. Levy v. Bank of United States. v. Cohen. v. Pyne & Richards. Lewis, et al. v. Davisson's Ex'r. Lewis v. Barton. Lewis ex'ors v. Overly's adm'r. Lewis v. Hawkins. v. Laftey, et al., Adm'rs. v. Pease. v. Peck. v. Rountree. Lewis, Trustee v. United States. TABLE OF CASES CITED. 583 Lincoln v. Rowe. Loan Association v. Stonemetz. Locke v. Lewis. Lock v. Selwood. Lockwood v. R. R. Co. Logan, et al. v. Brick, et al. Logan v. Hebert. v. Smith. v. Logan. Longstreet v. Phila. Long v. Walker. Loomis v. Ramsey. Looney v. Adamson. v. District of Columbia. Lord v. Bigelow. v. Laurion, et al. Loring v. City of Boston. Lorrilard v. Clyde. L. O. S. R. R. Co. v. Curtiss. Louisiana v. Wood. Louisa Frederick, Tutrix v. Robert Fas- nacht. Lovett v. Cornwall. Low v. Conn. & P. R. R. Lowell v. Meikle. Lowenstein v. Flourand. v. Knopf. Lloyd v. West Branch Bank. Luse v. Isthmus Transit Railway Co. Lozier v. Crofts. Lucas v. Brooks. v. Chamberlin. Luders v. Rasmus. Lum v. Robertson. Ludington v. Bell. Ludwick v. Huntzinger. Ludwig v. Gillepsie. Lungstrass v. German Ins. Co. Lillenthal v. Champion, et al. Lincoln v. Claflin. Lindsey v. Rottaken. Linville v. Savage. Littaner v. Goldman. Lycoming Fire Ins. Co. v. Jackson. Lyman, et al. v. Chamard. Lynch v. First Nat. Bank. Lynde v. The County. Lyon & Co. v. Culbertson, Blair & Co. Lyon v. Jerome. Maas v. Missouri R. R. Co. McAdow v. Block. McBean v. Fox, et al. McBratney v. R. W. & O. R. R. Co. McCall v. Nave. McCausland v. Ralston. McCarthy, et al. v. Barthe. McCloskey, Bigley & Co. v. Wingfield & Bridges. McClurkin v. Byers. McComack v. Molburg McCombs v. Allen. McConnell v. Blood. v. Denhon. v. Sherwood. McCord v. Crocker. McCoy v. Babcock. v. Dineen. McCraken v. Mclntire. McCraw v. Welch. McCullock v. Hoffman. McDowell, et al. v. Stewart. McDonald v. Holgate. McDowell v. Bank of N. & B. v. B'k of Wilmington & Brandy- wine. McFadden v. Jerkyns. McGavock v. Chamberlain. McGregory v. McGregory. McGuinness v. Blegh. McGuire v. Van Pelt. McGoren v. Avery. McGrade v. German Sav'gs Inst. McGrath v. Sinclair. McGraw v. Tatham. Mclntyre v. Parks. McKeajre v. H. F. Ins. Co. McKeithen v. Pratt. McKinney v. Collins. v. Merrick. McKinster v. Utica Bank. v. Utica Bank. McLane v. Paschal. McLear & Kendall v. Succession of Hun- sicker. McLeon v. Fleming. McMasters v. Willhelm. McMillan v. Parkell. McPherson v. Cox. McSherry v. Brooks & Barton, Trustees. McVeigh, et al. v. Allen. Mabey v. Adams. Macbeth v. Wanless. Macfarlane v. Devy. Machaness v. Long. Macher v. Frith. Mackintosh v. Eliot Nat. Bank. Mackasy v. Ramsays. Mackay v. The Commercial Bank of New Brunswick. Macky v. Dillinger. McMurray, et al. v. Noyes. Maddox v. Stephenson. Magruder v. Admire, et al. Magruder, Receiver v. Colston, et al. Mahn v. Hussey. Mahalen v. The Dublin & Chapelized Dis- tilling Co. Mahoney v. East Holyford Mining Co. Mailloux Audet & Mailloux v. Carrier. Malone v. Kelly. Malony v. Fortune. Mandeville v. Union Bank. Manchester v. Braedner. 584 TABLE OP CASES CITED. Manhattan Co. v. Lydig. v. Osgood. Manion v. Fahy. M'f 'g Bank of Chicago v. Barnes. Manuf 's & Merch'ts B'k v. Follett. Manville v. Edgar. Maraist v. Guilbeau. Marine Bank v. Fulton Bank. Marion Savings B'k v. Dunkin. Marsh v. Armstrong. Marshall v. Mitchell. Marsh v. Oneida Bank, v. Putney, v. Whitmore. Mark's Appeal. Mark v. City of Buffalo. Markley, et al. v. Langley, et al. Marks v. Sewall. Mark v. Wetzlar. Marr v. Lewis, v. Marr. Martin v. Cole. v. Skehan. v. Smith. v. Tobin. v. The Hazard Powder Co. Mason v. Ammon. v. Macdonald. Massue v. Crebassa. Marvin v. Hymers. Matter of Freil, Assignee of Foley & Co. Matherson v. Kelly. Matteson v. Moulton. Mathewson v. Sprague. Mathews v. Aten. Matthews v. Crosby. v. Mass. Nat. Bank, v. Morris. v. Phelps. Mayer v. Gill. v. The Mayor. May & Sloan v. Gamble. Maynard v. S. B. & N. Y. R. R. Co. Mayhue v. Snell. Mead v. Merchants' Bank. v. Small. Mean's Appeal. Mechanic's Building Ass. v. C. L. Fergu- son. Mechanics' B'k v. Carp, v. Earle. v. Bank of Columbia, v. Merchants' Bank, v. Schaumberg. v. Seton. Mechler v. First Nat. B'k of Hagerstown. Melendy, et al. v. Capen. Mellon v. Moore. v. Lemon. Me^imert v. McKeen. Memphis & Little Rock Ry. v. Railroad Cnm'ra. Mendenhall v. Steckell. Menges v. Foick. Merchants' B'k of Canada v. Griswold. Merchants' Bank v. Rudolf. Merch. Nat. Bank v. Goodman. Merchants' Nat. Bank v. Hall. v. Nat. Bank, v. Sells & Co. Merchants' B'k v. State Bank. Merchants' Nat. B'k v. State B'k. Merchants' Bank v. Valley Packing Co. Merch. MPgs' Bank v. Stafford Bank. Merrikan v. Godwin, et al. Merrill v. Gamble. Merrills v. Law. Merry, Adm'r of Patterson v. Lynch. Meserole v. Archer. Metcalf v. Grover. Metropolitan Bank v. Godfrey. Meyer, et al. v. Hanchett. Michigan Bank v. Eldred. Mickle v. Peet. Miguel Avendano v. I. W. Arthur & Co. Miller v. Excelsior Stone Co. v. Holden. v. Irwin. v. Kempner. v. Life Ins. Co. v. Long. v. McKinzie. v. Miller. v. Penn. Milks v. Rich. Mills v. Kuykendall. Miles v. Loomis. Mills Co. Nat. Bank v. Perry. Mills v. Smith. v. Van Voorhis. Miltenberger v. Cooke. Mineral Point R. R. Co. v. Barren. Miner's Trust Co. Bank v. Roseberry. Mimger v. Albany City Nat. B'k. Misa v. Currie. Missiquoi Bank v. Sabin. Mitchell v. D. Armond. Mitchell, et al. v. Brown, et al. & Baillie. Mitchell v. Browne. v. Read. Mix v. Shattuck, et al. Mr. M. W. Graham v. Mrs. Z. A. Thayer. Mohawk Bank v. Roderick. Moir v. Allen. Mondel, et al. v. Mower, et al. Monk v. Whittenbury. Montague, et al. v. Weil Bros. Montanye v. Wallahan. Montgomery Co. Bank v. Albany City B'k, Moody v. Moody. Moore v. Bank of Commerce. v. Fuller. v. Miller. Moors v. Kidder. TABLE OF CASES CITED. 585 Moran, et al. v. Prather. Moran v. McLarty. Morgan, et al. v. Dod. v. Francklyn. Morgan v. Louisiana. Morgan's Sons Co. v. Troxell. Moncrty v. Beecher. Morse on Bank and Banking. Morrison v. Norman. Merrill v. Beaver. Morris v. Bacon. Morrison v. Kinston. Morrow v. Morgan. Morton v. Thurber. Morville v. Am. Tract Society. Mosher v. Randall. Mosier v. Norton, et al. Mosses v. McDivitt. Motley v. Downman. Moule v. Brown. Mowry v. Bishop. v. Shumway. Mrs. A. R. Richardson v. Moses Mann. Mrs. Emily L. Hart, et al. v. St. Charles Street Railroad Co. Mrs. Marie E. Dawson v. Marie Lan- dreaux. Mrs. Mary L. Hardin v. Wolf & Cerf. Mudge v. Bullock, Adm'r Mulhall v. Keenan. Mullen, et al. v. Russell, et al. Mumford v. Am. Life Ins. & Trust Co. Munger v. Albany Cit. Nat. Bank. Muller v. Dows. Muroe v. King. Murphy v. Gaskin's Admr's. Murphy, Neal & Co., et al. v. Creighton. Murray v. Beard, v. Judah. Muzzey v. Reardon. Nagle v. McFeeters. Nash v. White's Bank of Buffalo. Nalle & Cammach v. A. L. D. Conrad, et al. Nassau Bank v. Jones. National Bank at Dover v. Segar. Nat. Bank of Auburn v. Lewis. Nat. Bank v. Bigler. Nat. B'k of the Commonwealth v. Me- chanics' Nat. B'k. National Gold Bank v. McDonald. National B'k of Gloversville v. Wells. National Bank v. Ins. Co. National B'k of Jacksonville v. Mapes, et al. Nat. Bank of N. Y. v. Bigler. Nat. B'k of Northampton v. Mass. Loan & Trust Co. National Bank v. Matthews. Nat. Bank of G. v. Place. Nat. B'k of Poultney v. Lewis. Nat. Bank of Washington v. Texas. National Ins. Co. v. Webster. Nat. Mech. B'k Ass'n v. Conkling. Nathans v. Hope. Nat. Fire Ins. Co. v. Sackett. Nehrboss v. Bliss. Neftel v. Lightstone. New Hope & Delaware Bridge Co. v. Phoenix Bank. Nelson v. First Nat. Bank. New Orleans Canal & B'k'g Co. v. Mont* gomery. New Providence v. Halsey. Newell, et al. v. Smith, et al. Newell v. Nixon. Newcomb v. De Roos. Newman v. McGregor. v. Wait. Newton v. Allen. v. Kennerly. v. Newton. v. Porter. v. Russell. N. Y. Farmer's Ins. Co. v. Ely. New York Fire Ins. Co. v. Donaldson. New York Guardian Ins. Co. v. Glea- son. N. Y. Ins. Co. v. Albro. New York Mut. Life Ins. Co. v. Arm- strong. N. Y. S. L. and Trust Co. v. Hemer. Nicholas Connell v. Alexander Hill. Nichols v. Allen. Nicolay v. Unger. Nickerson v. Ruger. Nightingale v. City Bank. Noar v. Gill. Noble v. McFarland. Nolan v. B. C. & N. R. R. Co. Noonan v. Bradley. Nopson v. Horton. Norman v. Conn. Northampton M. L. Ins. Co. v. Tuttle. North'n B'k of Kentucky v. Cooke. No. F. Ins. Co. v. Wright. Northford Rivet Co. v. Blackmail MPg Co. North River Bank v. Aymer. Norton v. Dryfuss. Nourse v. Henshaw. Noyes v. Barnett. Nugent v. Wolfe. Nunez v. Dantel. Oberman v. Hoboken City Bank. Ober v. Gallagher. v. Smith. O'Brien v. Petitioner. v. Stevenson, et aL O'Brien v. Strong. O'Connor v. Clarke, v. Kempt. 586 TABLE OF CASES CITED. Odell v. Greenly. Oelrich v. Spain. Oertel v. Schroeter. Oganne v. Abraham Haber. Ogden, Etc. v. Redd. Ogden, R. N. v. A. Marchand. O'Hara v. Mrs. E. Booth & Connell. O'Hare v. National Bank. Old Dominion Granite Co., et al. v. Clarke, et al. Oliver, use of Griffith v. Lowry. O'Meara v. Halbrook. Oregon S. S. Co. v. Otis. Ormsbee v. Kidder, et al. Osborn v. Byrne. Oskaloosa, The College v. Hickok. Orchard v. Hughes. Ormes v. Dauchy. Overall v. Bezeau. Otis, et al. v. Cullon, Receiver. Overend, Gurney & Co. v. Oriental Finan- cial Corporation. Oxnara v. Varnum. Pacand v. The Corporation of Halifix, South. Paddicord, et al. v. Connard. Paddleford v. Thacher. Page v. Waring. Paine v. Benton. v. Caswell. v. Noelke. v. Upton. Pain v. Packard. Palmer v. Howard, v. Hussey. v. Palmer, v. Purdy. Pape v. Capital Bank. Paris, et al. v. Moe, Adm'r. Parker v. Baxter. v. Hinckley Locomotive Works, v. McKenna. Parkinson v. City of Parker. Parmelee v. Simpson. Parshall, S. P. v. Lamoreaux. Parsons' Bills & Notes. Parsons Sav'gs Bank v. Sargent, et al. Patee v. Pelton. Paterson Sav'gs Bank v. Brush. Paterson v. Taylor. Paton v. Coit. Patterson v. Carrell. v. Lailey. Pattison v. Vaughn. v. Syracuse Nat. Bank. Patton v. Coen & Ten Broeke. v. Hughesdale. Pauling v. Creagh. Paul v. Logansport Nat. Bank. Paul Mack v. C. E. Fortier, et al. Pavey v. Pavey. Payne v. Becker. v. Cave. Payser v. Citizen's Mut. Ins. Co. Pecker v. Silsby. Pence v. Gale. v. Langdon. Fender v. Kelley. Penn. Bank, to use v. Hopkins, et al. Penn. Coal Co. v. Blake. Penn Match Co. v. Hapgood. Pennock v. McCormick. People's Bank v. Bogart. People v. Bank of North America. v. D'Argeneour. v. Doty. People, et al. v. Storms. People, ex rel. Thurman v. Ryan. People, ex rel. Ainslee v. Hewlett. People, ex rel. v. Com'r's of Taxes, People v. Equitable Trust Co. People, ex rel. Ins. Co. v. Comr's. People v. Mayor. v. Mer. and Mech. Bank. v. M. & T. Sav'gs Inst'n. v. Nat. Gold Bank. v. National Trust Co. v. Security L. Ins. Co. Peoples' Sav'gs Bank v. Bates. Per Breese. J. Brown v. Smith. Pargond v. Richardson. Perkins v. Barstow. v. Guy. v. Littlefield. v. McDuffee. Perley v. Spring. Persom v. Com. Exchange Bank. Perrin v. Kellogg. Peru v. Turner. Petrie v. Meyer, et al. Pettigrew v. Summers. Peugh v. Davis. Philadelphia v. Lockhard. Philbrick v. Dallett. Phelps v. Murray: Philip's Academy v. Davis. Phillips v. Bullard. v. Evans.- Phillips, et al. v. Howell. Philpot v. Bryant. v. Gruninger. Phipps v. Milbury Bank. Phcenix Ins. Co. v. Church. Picot v. Signiago. Pickering v. Day. Pickersgill v. Lahens. Pickett, et al. v. Merch. Nat. B'k of Mem- phis, et al. Pier v. George. v. Hanmore. Piedmont & Arlington Ins. Co. v. Ewing, Admr. Pierce v. Parker. TABLE OP CASES CITED. 587 Pierson v. Atlantic Nat. Bank. Pike, Brother & Co. v. Hart & Hebert. Pillow v. Wade and wife, et al. Pinard v. Klockmann. Pittman v. McClellon. Plaisted v. Palmer. Planters' and Farmers' Nat B'k V. Nat B'k of Wilmington. Planters' Bank v. Union Bank. Plainer v. Plainer. Poillon v. Lawrence. Pollard, Adm'r v. Bowen. Pollard v. Bailey. Pollock v. Ray. Pomeroy v. Pomeroy. Pond v. Kim ball. Poole v. Dyer. Pooley v. Brown. v. Harridine. Pope v. Bank of Albion. Popple v. Day. Post v. Stiger. Potter v. Douglass. Potts v. Hart. v. Mayer. Poucher v. Blanchard. Powell v. Jones. Powers v. Benedict. v. Silberstein. Prall v. Tilt. Pratl v. Eaton. v. Elkins. v. Short. v. Taunton Copper Co. Prentiss v. Danielson. Pretlow v. Bailey's Ex'r, et aL Pribble v. Kent. Price v. Keen. v. Mahoney. v. Trusdell. Prime v. Cobb. Prince v. Oriental Bank. Prior v. White. Pritchard v. Jonson & Calhoun. Prouty v. Roby. v. Wilson. Propeller v. Mohawk. Prov. Assurance Co. v. Nat Bank. Providence Tool Co. v. United States Mf 'g Co. Pugh v. Cameron, Adm'r. Putman v. Clark. Pyne v. Kinna. Queckenbush v. Leonard. Quillen v. Arnold. Quimby v. Dill. Quincy v. Hall. Ragan v. Day, et al. Randall, et al. v. Higbee. Randall v. Sackett Rankin v. Shaeffer, Admr. R. N. Ogden v. A. Marchond. Raphael v. Bank of England. Railway Co. v. Allenton. v. Howard. Railroad Co. v. Bank of Ashland, v. Hodgens. v. Jones. Ratcliffe v. Smith. Raubitschek v. Blank. Rawson v. Taylor. Raymond v. Bearnard. Raynor v. Pacific Nat. Bank. Ray v. Simmons. Real Estate Sav'gs Inst. v. Linder. Receiver of Ocean B'k v. Estate of Wild. Receiver of New Amsterdam Sav'gs Bank v. Tartter. Reder Life Raft Co. v. Roach. Reed v. Bank of Newburgh. Reed, Crone & Co. v. Kremer & Co. Reed v. Eastman. v. Reeves, Adm'r. v. Woodman. Reel v. Ewing. Reedy v. Brunner & Co. Reeves v. State Bank of Ohio. Reevill v. Donaldson. Regan v. Jones. Reid, et al. v. Warner. Reinheimerv. Carter. Renshaw v. Richards. Remington v. Staats. Renckley v. Railroad Co. Rem. Paper Co. v. O' Dougherty. Renshaw, Henry v. A. Keene Richards. Reppely v. Ramsden. Reuter, et al. v. St. Louis, et al. Reynolds Adm'r et al. v. West. Reynolds v. Cleveland, v. Rondabush. Reznor v. Supplee. Rhodes v. Williams. Rice v. Smith. Richardson v. Draper. v. Grandy, et al. v. Hewitt. v. Hughitt. v. McKim. Richardson & May v. Lightcop. Richardson v. Pierce. Richards v. Hountze. Richer v. Voyer, et al. Rickwell v. Comstock. Ridgeway v. Farmers' Bank. Right of entry against heirs of the mort- gagor. Rigoney v. Nieman. Rindge v. Kimball. Ringling v. Kohn, et al. Risley v. Phoenix Bank. Rittenhouse v. Ammerman. 588 TABLE OF CASES CITED. Ritter v. Singmaster. Rixford v. Miller, et al. Roach v. Karr. Robbins v. Dellaye. Robert H. Hartley v. City of New Or- leans. Robertson v. Cauble. Roberts, et al. v. Jacks. v. Woven Wire Mattress Co. Roberts v. Plainsted. v. Stewart. v. Taft. Robinson v. Chemical Nat. Bank. v. Larrabee. v. Nat. Bank of Newborne. v. Reed, et al. v. Talbot. Robson v. Bennett. Robson, et al. v. Mich. Central R'y Co. Rodabaugh v. Pitkin. Roe v. Barker. Roehner v. Knickerbocker Life Ins. Co. Rogers v. Vaughn. v. Vosburgh. Rooker v. Rooker. Roop v. Delahaye. Roosevelt, et al. v. Davis. Rose v. Bridgeport. Rose & Co., et al. v. Brown, et ux. Rosenbark v. M. & B. Bank. Rosenblatt v. Johnston. Rosier v. Hale. Ross v. Boswell. v. Doland. v. Hood, v. Jones. Ross, Respt v. Terry, Applt. Ross v. Wilson. Rossiter v. Trafalgar Life, A. A, Rowell v. Mitchell. Royal Canadian Bank v. Wilson, et aL Ruefle v. Moore, et al. Rugg v. Moore. Runds v. Harding, et al. Ruppert v. Haug. Russell v. Allerton. Russell, et al. v. Thatcher, et aL Rutherford v. Talent. Ryan, et al. v. Malo. Ryan v. Dunphy. Saco Nat. Bank v. Sanborn. Sadler's Adm'r v. Kennedy's Adm'rx. Safe Deposit Co. v. Pollock. Safford v. McDonough. Saint v. Smith. Salem Bank v. Gloucester Bank. Sales v. Sims. Salisbury v. Howe. Salter v. Burt. Salt Lake City Nat. B'k v. Hendrickson. Sampson v. Sampson. Samstag, et al. v. Conley, et al. Samual A. Tripp, et al. v. Curtenias, et al. Samual & A. W. Smith v. Crescent Citj Live Stock Landing & Slaughter House Co. Sanborn v. Adair. v. Cree. Sanford v. Hays. Sanders v. Adeline Edwards. v. Eldridge, et al. Sanders, et al. v. Gooding, et al. Sarbach v. Jones. Sattler & Co. N. Leonard Marine. Satherland v. Olcott Saulsbury, Respers & Co. v. Blandys. Saunders v. Reilly. Savage v. Scott, et al v. Sherman. Sawyer v. Hoag. Saxon v. Hill. Scheland v. Erpelding. Schaefer, et al. v. Gildea, et aL Schell v. Devlin. Schencho v. Meier. Schindel v. Gates. Schnepel v. Mellen. Schmidlapp v. Currie. Schmidlopp v. Currie. Schmidt and Zeigler v. Sandal, et aL Schmitz v. Langhaar. Schmucker, et al. v. Sibert, Assignee. Schoefer, et al. v. Gildea, et al. Scholey v. Ramsbottom. Scollans v. Flynn. Schoen v. Houghton. Schonberg v. Cheney. Schoop v. Clarke. Scott v. Fields. v. Ocean Bank. v. Shirk. Schrauth v. Dry Dock Sav'gs Bank. Schroeder v. Central B'k of London* Schuchardt v. Stanley. Scudder v. Union Nat. Bank. Schuele v. Reiman. Schultz v. Hoagland. Scullion v. Perry, et al. Schumpert v. Dillard, Pinson & Co. Schumucker v. Sibert. Schultz v. Hoagland. Schuylkill Co. v. Copley. Sea v. Glover. Seamans v. Burt. Seammon v. Kimball, Assignee. Searight v. Payne. Seaton v. Scovill. Seaver v. Lincoln. Second Nat. B'k of Cincin. v. Hemingraf, Second Nat. Bank v. Miller. Second Nat. Bank of Oswego v. Burt. Second Nat. B'k v. Teeters. TABLE OF CASES CITED. 589 Security Bank v. Nat. B'k of the Repub- lic. See In re Bradner. See Newton v. Russell. See Nolan v. B. C. & N. R. R. Co. Selden v. Preston. Semple, et al. v. Atkinson, et aL Serrae Hijo v. Hoffman & Co. Serviss v. McDonnell. v. Stockstile. Seventh Nat. Bank v. Cook. Sevin & Gourdain, in Liquidation v. Theo- gene Caillonet. Seybolt v. N. Y. L. E. & W. R. R. Seymour v. Colburn. v. Continental Life Ins. Co. v. Strong. Shackelford v. Hooper. Shaler v. Trowbridge. Shane v. Lowry. Shattuck v. Bascom. Shaw v. Cock. Shepard v. Gilroy, et al. Shepherd v. Henrickson. Shepler v. Scott. Sherman v. Black. Sherewood v. Snow, Foote & Co. Shillaber v. Robinson. Shirts v. Ison. Shoe and Leather Nat. B'k v. Dix. Shoemaker v. King. Shokeeker v. Farmers' Bank. Short Mt. Coal Co. v. Hardy. Shriver v. Shriver. Shroser v. Isaacs. Siebeneck v. Anchor Sav'gs Bank. Silsby v. Trotter. Silvens v. Porter. Simmons v. Sav'gs Society. Simpson v. Bovard. v. Davis. Singer Manfg. Co. v. Hudson. Sistare v. Best. Skrine v. Lewis. Slater v. Breeze. Sledge v. Swift, Murphy & Co. Slossom v. Duff. Slyeke v. Mills. Small v. Clarke. Smart v. Bowmanville Machine Imple- ment Co. Smarr v. Schnitter. Smedes v. B'k of Utica. Smeltzer v. White. Smidt, Adm'x v. Chicago and North- western R'y Co., et al. Smith v. Appleton. v. Carroll, v. County. Smith, et al. v. Browne, et al. Smith, E. v. Erwin. Smith, et al. v. Mayer, et al. Smith, et al. v. State, use of County Com'rs of Baltimore. v. Stephenson, et al. v. Vodges, Assignee. Smith v. Frankfield. v. Hathorn. v. Holbrook. v. Jones. v. Ix>wnsdale. v. Miller. v. Morse. v. Munday. v. Paton. v. Poillon. v. Sloan. v. Smith. v. Sorby. v. Strout. v. Union Bank of London. v. United States. Smoot's Case. Smyth v. K. L. Ins. Co. v. Munroe. Sohier v. Loring. Solinger v. Earle. Sooy Ads. State of New Jersey. Soper v. Fry. Southard v. Benner, et al. South Boston Iron Co. v. Brown. Soulie v. Ranson. Southwick v. First Nat. Bank. Spaulding v. Adams, v. Backus. Spencer v. St. Clair. Spinetti v. Atlas S. S. Co. Spooner v. Holmes. v. Thompson and wife. Sprague v. Hosmer. Springer, et al. v. Bartle. Spring, Ex. v. Reed, et al. Springport v. Teutonic Savings Bank. Stacy v. Dane Co. Bank. Stagg v. Elliott. Staley v. Kneeland. Stanberry v. Moore. Stanley v. Chamberlain. v. Whitney. Stanton v. Demervitt. St. Joseph M'f'g Co. v. Daggett St. Louis Nat. Stock Yards v. O'Reilly, et al. Starin v. Kelly. Stark v. Alford. v. Sperry. Starr v. Mayer & Co. State Bank v. Bank of the Capital. State v. Brower. v. Chapman. State Bank v. Chetwood. v. State. State, ex rel. Billingsley v. Spencer. State, et al., Brown v. Baker, et aL 590 TABLE OP CASES CITED. State, ex rel. Freon v. Enterprise Carriage Co. State, ex rel. Louis Fix v. F. J. Herron, Recorder of Mortgages, et al. State, ex rel. Merchants' v. Daspit. State, ex rel. John Klein & Co. v. Ed. Philsbury, Adm'r of Finance. State Bank of Troy v. Bank of the Capital. State, ex rel. Martin, et al. v. N. O. & Carrollton R. R. Co. State, et al. v. Potter. State Ins. Co. v. Gennett. State Railroad Tax Cases. Stebbins v. Duncan. Steele v. Russell, v. Souder. Steinbach v. Relief F. Ins. Co. Stephens v. Bd. Edn. of Brooklyn. v. Murton. Sterling v. Stewart. Stettauer v. Carney. Stettauer Bros. v. Carney & Stevens. Stettheimer v. Killip. Steuben Co. Bank v. Alberger. Stevens v. Rainwater. Stewart v. Davis. v. Hopkins, v. Johnson, v. Salamon. Stillwell v. Mut. Ins. Co. Stitt v. Little. Stockham v. Stockham. Stockwell v. Holmes. Stone, et al. v. King, et al. Stone v. Marsh. Stoner v. Milliken, et al. Storm v. Cumberland. Stott, et al. v. Rutherford. Story v. Soloman. Stoughton v. Lynch. Stowell v. Raymond. Strause v. Josephthal. Strauss v. Wessel. Stratford v. Jones. Streit v. Waugh. Strong v. Blake. v. Downing. Strong, et al. v. Shea, et al. Strong v. Foster, v. Jackson. v. The State, ex rel., etc. Stults v. Silver. Sturne v. At. M. Ins. Co. Succession of Bofenschen. Succession of Carmelite Planchet Succession of Dougart. Succession of Margaret McAuley. Succession of Wood. Sullivan v. Bonesteet. v. Langley, et al. Surtwell v. Frost. jSuse v. Pompe. Sus. Val. Bank v. Loomis. Swain v. Seamens. Swift v. Junesbury. Sweetland v. Barrett. v. Quidnick Co. Sweetzer's Appeal. Swive v. Francis. Sylvius v. Kosck. Synde v. The County. Syracuse Sav'gs Bank v. T'n Seneca Falls. Tabor v. Van Tassell. Taddiken v. Cautrell. Talbot, et al. v. Wilkins, et al. Talcott v. Henderson. Talft v. Larkin. Talmage v. Pell. v. Third Nat. Bank. Tancil v. Seaton. Tapley v. Martin. Tappan, Collector v. Merchants' Nat. B'k. Tappan v. Merchants' Nat. B'k of Chicago. Tarbell v. West. Tate v. Clements. Taylor v. Francoso. v. Kymer. v. Merchants' Fire Ins. Co. v. Trueman. v. Wing. Thacker v. Bank of the State of N. Y. v. Tracy. Thayer v. Finton. Terry v. Tubman. The ^Etna Ins. Co. v. The Alton City B'k. The B'k of Upper Canada v. Turcotte. The City Bank v. Hunter & Maitland. The City v. Lamson. The Co. of Vernon to use of School Fund v. Stewart. The Davis Sewing Machine Co. v. Mc- Ginnis, et al. The Delaware. The Eclipse Windmill Co. v. Thorron. The Eddy. The Edinburgh Life Ins. Co. v. Allen. The ytna Ins. Co. v. The Alton City Bank. The Floyd Acceptance. The Franklin. The Idaho. The Kemball. The Mary Washington. Third National Bank v. Boyd. v. Eastern Railroad Co. Thomas, et al. v. Farmers' Bank of Md. Thomas v. Hammond. v. Richmond. Thompson v. Bank of South Carolina, v. Bowie, v. Bowman. v. Bowne. v. Feagin. TABLE OP CASES CITED. 591 Thompson v. Gray. v. Johnson. v. Taylor, v. Whitmarsh. Thomson v. Bank of British N. Am. v. MacGregor. v. Lee. v. Herter. v. James. Thorne, et al. v. Prentiss. Thornton v. Kelly. Thorpe Bros. v. Durbon, et al. Thos. E. Helm, et al. v. Meyer, Weis & Co. Thouron v. Pearson. The Quebec Bank v. Molson. The S. C. & St. P. R. R. Co. v. The County of Osceola, et al. The Sally Magee. The State, ex rel., etc. v. Sherill. The Thames. The Vaughan v. Telegraph. Tibbetts v. Flanders. Ticonie Bank v. Bagley. Tiemeyer v. Turnquist. Tiffany v. Boatman's Institute. v. National B'k of Missouri. Tilden v. Blair. Tillman v. Davis. Tobey v. Ellis. Todd v. Shelbourne. Toland v. Spraugue. Town of S. v. Teutonia S. Bank. Town of East Lincoln v. Davenport. Township of East Oakland v. Skinner. Townsley v. Moore. Town of Queensburg v. Culver. Town of South Ottawa v. Perkins. Towsley v. M. Towne v. Rice. Townsend v. Quinan. v. Long. Town of Springport v. Teutonia Sav'gs B'k. Tozier v. Crafts. Treadwell v. Archer. v. Himmelmann. Trenton Banking Co. v. Duncan. Trenton Mut. Life Ins. Co. v. Johnston. Trevor v. Wood. Trieber v. Com. Bank of St. Louis. Tripp v. Curlessius. Truax v. Slater. v. Van Tassell. Truly v. Wanzer. Trustees, etc. v. Gilmer. Turnbull v. Broch. v. Payson. Trusk v. McGuire. Tuston v. Dufies. Turner v. Rogers. Tucker v. Tucker. Turlington v. Slaughter. Turner v. Samson. v. Rogers. v. Watkins, et al. Tuthill v. Morris. Twombly v. Cassidy. Tyner v. Stoops. Ulster Bank v. Synott. Ulster Co. Bank v. McFarland. Underbill v. Phillips. Underwood v. Birdsell. Union Dime Sav'gs Inst. v. Anderson. Union Bank v. Johnson. v. Laird, v. Mott. Union Gold Mining Co. v. Rocky Mt. Nat. B'k. Union Ins. Co. v. Grant. United Society of Shakers v. Underwood. United States v. Bank of Georgia, v. Britton. v. McGennis. v. State Bank. Union Trust Co. of N. Y. v. Monticello and Port Jarvis R. R. Co. Updegraft v. Edwards, et al. Upham v. N. Y. L. & T. Co. Upton, Assignee v. Nat. B'k of South Reading. Upton v. Fribilock, Supra. v. National B'k of South Reading. Upham v. Hamill. Uranie Berard v. Vincent Boagni. Usher v. Hazeltine. Utica Ins. Co. v. Bloodgood. v. Cadwell. Vallieres v. Roy. Van Allen v. The Assessors. Van Auken v. Dunning. Van Bemschooten v. Lawson. Van Brunt v. Day. Vance v. Lowther. Vanderslice v. Knapp. Vanderveer v. Statesir. Van Dyck v. McQuade. Van Gelder v. Van Gelder. Van Patton & Marks v. Beals & Hammer. Van Rensselaer v. Jones. Varney v. Hawes. Vason, et al. v. Reall, Trustee. Vaughn v. Ferrall. Vaupell v. Woodward. Van Wickle, Jacob C. v. Acie Landry. Van Wickle v. Merch. & Tr. Ins. Co. Van Wyck v. Walters. Veazie Bank v. Fenno. Veitinger v. Winkler. Vermilye & Co. v. Adams Ex. Co. Vermont Cent. R. R. v. Clayes. Venner v. Futroye. 592 TABLE OP OASES CITED. Vernol v. Vernol. Vickery v. Dickson. Viele v. Judson. Viles v. Bangs. Vogel v. St. Louis Museum Opera & Fine Art Gallery. Vose v. Wood ford. Voss v. The German Am. B'k of Chicago. Wade v. Guppinger. Wagner v. Freschl. Wager, et al. v. Halleck, et al. Waite v. Chandler. v. Dowley. Waldron v. Richings. Walsh v. Blakely. Walker v. Bank of State of N. Y. v. France. Walker, et al. v. Abt., et al. v. Niles. v. Wait, et al. v. Walker. Walling v. Miller. Wanner v. Sisson. Ward v. Brandon. v. Craig. v. Howard, v. Smith. v. Stahl. v. Winship. Wart v. Woolley. Warren v. Hoyslett. Warren Bank v. Suffolk Bank. Wast v. Mitchell. v. Wooley. Watson v. Beabout. v. Brightwell. v. Henderson, et al. v. Janion. v. Jones. v. Reynolds & Stuckey. Water Valley Mf g Co. v. Seaman. Wayne Co. Sav'gs B'k v. Low. Way v. Hearn. v. Smith. Wear v. Skinner. Wheat v. Cross. v. Rice. Webb v. Buckelew. Webber v. Emmerson. Weber v. Fickey. Webster v. Upton, Assignee. Weed v. Weed. Wheeler v. Conn. Mut. L. Ins. Co. Wheeler v. Newboulds. v. National Bank. Weeks v. Medler. W. E. Hamilton, et al. v. Nellie Hodges, Tutrix, et al. Wehle v. Spellman. W. F. & Co. v. Davis. Weigh v. Boylon. Weisser v. Denison. Welborn v. Coon. Welch v. Allington. v. Goodwin. Welling v. Byerson. Wellington v. Jackson. Wells v. Caywood. v. Milwaukee Fire Ins. Co. Welsh v. Cochran. v. Ger. American Bank. Wenman v. Ins. Co. West Boston Sav'gs B'k v. Thompson. West Branch Bank v. Fulmer. West R. R. Co. v. Bayne. West St. Louis Sav. B'k v. Shawnee Co. B'k. Westphal, Hinds & Co. v. Moulton. West Tr. & Coal Co. v. Kliderhouse. Wm. H. Boullt v. Jerome Sarpy, et al. Whetherill v. Bank of Pennsylvania. Whistler v. Forster. Whitaker v. Miller, et al. Whitney Arms Co. v. Barlow, et al. Whitney v. Cowan, v. Esson. v. First Nat. Bank of Attleboro'. v. Merchants' Union Express Co. White, Bonner & Wright v. Stanley. White v. Chaffin. Whitehead v. Smith. White v. Kuntz. v. Lucas. v. Rintoul. Whiteside, et al. v. United States. Whiteside v. Hyman. Whiting v. City B'k of Rochester. Whiton v. Snyder. Whittemore v. Farrington. Whittlesey v. Spofford. Wichita Sav'gs B'k v. Atchinson, Topeka & St. Fe. R. R. Co. Widner v. Walsh. Wiggin v. Godwin. Wilbur v. Jernegan. Wilcox v. Cambell. Wilcox Silver Plate Co. v. Green. Wilcoxson v. State. Wilder v. Seelye. Wiley v. Mahood, et al. v. Nat. B'k of Brattleboro. v. Williamson. Wilkins v. Com. Bank. Wilkinson v. Nat. F. Ins. Co. Willard v. Taylor. Willets v. Phoenix Bank. William S. Peterkin v. George Martin. Williams v. Allen. v. Ayens. v. Cardwine. v. Conger, v. Ingersole. Williams, et al. v. Ewing & Fanning. TABLE OF CASES CITED. 593 Williams, et al. v. Pungy, et al. Williams v. Pitts. v. Powers. v. St. Louis, Iron Mt. & South'n R. R. Co. v. Starr. v. Suprs. Wayne Co. v. Wallace. v. Weaver. v. Wentworth. Williamson v. New Jersey R. R. Co. v. N. J. South'n R. R. Co. Wills, et al. v. Claflin, et al. Wilmot v. Hurd. Wilson v. Elliott. Wilson, et al. v. King. v. Ridgely, et al. Wilson v. First National Bank. v. Gaines. Wilson & Hunting v. Jones, et al. Wilson v. Martin. v. Rogers, v. Russell, v. Smith. Wilson S. M. Co. v. Schnell. Winchell v. Crider. Winch v. Mut. Benefit Ice Co. Wingate v. Mechanics' Bank. Wing v. Hayford. Winkley v. Foye. Winne, et al. v. Col. Sp'g Co. Winslow v. Lane. Whiskaw v. Gilmour. Worman v. Kramer. Woods v. Armstrong. Wormall v. Reens. Woodbury v. Garth. Wood v. Amory. Woodruff v. Hill. 38 Wolf v. Fletemeyer. Woodside v. Adams. Woodward v. Suydam. Woodmansee v. Rogers. Wood v. Steele. Wood & Co. v. Merchants' Savings, Loan and Trust Co. Wood v. E. R. R. Co. v. Knapp. Woodruff v. Hurson. v. Webb. Woods v. Matchett. Woodward v. Snydam. Wormley v. Hamberg, et al. Whr. v. Germ. Luth'n Ev. Congre'n of Baltimore. Wright v. Bigg. v. Rankin. v. Watt, et al. v. Wilson. W. Tr. & C. Co. v. Kliderhouse. Wychoff v. Anthony. Wynen v. Schappert. Yendell v. Pugh. Yates v. Burch. Yerkes v. Nat. Bank of Port Jervis. York v. Pierson. Young v. Bushnell. Young & Conant MPg Co. v. Waterfield. Young v. Durgin. v. Godbe. Zane v. Kennedy. Zantzingers v. Gunton. Zekind v. New Kirk. Zelle, et al. v. German Sav'gs Institution. Zimmerman v. Hinkle. Zomtlein v. Brain. ABBREVIATIONS EMPLOYED IN CITING LAW REPORTS. Abb. Adm. (U. S.) Abott's Admiralty, U. S. District, Southern Dist. of N. Y. Abb. (U. S.) Abbott's U. S. Circuit and District Courts. Abb. Pr. (N. Y.) Abbott's Practice, Various Cts. Abb. N. C. (N. Y.) Abbott's New Cases, Various Cts. Abb. Pr. N. S. (N. Y.) Abbott's Practice, New Series, Various Cts. Abb. App. Dec. (N. Y.) .... Abbott's New York Court of Appeals. Add. (Pa.) Addison's Penn. County Court, and Court of Errors. Aik. (Vt.) Aiken, Vt. Supreme Court. A. K. Marsh. (Ky.) A. K. Marshall's Court of Appeals. Ala. N. S. (Ala.) Alabama Sup. Ct., New Series. Ala. Sel. Cas. (Ala.) Alabama Select Cases, Ala. Sup. Ct. Alden, (Penn.) Alden's Condensed Reports. Allen, (Mass.) Allen's Mass. Supreme Court. Anth. (N. Y.) Anthon's N. Y. Cases at Nisi Prius. Ariz Arizonia Rep's Territorial Courts. Ark Arkansas Sup. Court. Ashm. (Pa.) Ashmead, Penn. Various Courts. Bailey, (S. C.) . Bailey, South Carolina Ct.'s of Appeal. Bailey, Eq. (S. C.) Bailey's Equity, S. C. Ct. of Appeal. Ban. & A. Pt. (U. S. C.) . . . . Banning & Arden's Patent Rpt's, Circuit Ct. Bankr. Reg Bankruptcy Register, New York. , Barb. (N. Y.) Barbour's N. Y. Supreme Court. Barb. Ch. (N. Y.) Barbour's N. Y. Court of Chancery. Bay, (S C.) Bay's South Carolina, Various Cts. Beas. Ch. (N. J.) Beasley's New Jersey Ct. of Chancery, and of Er- rors and Appeals. Bee, Adm. (U. S.) Bee's Admiralty, U. S. District Cts. Ben. (U. S.) Benedict's U. S. District of Southern District of New York. Benn. (Dak. T.) Bennett's Dakota Reports. Bibb, (Ky.) Bibb's Kentucky Ct. of Appeals. Binn. (Pa.) Binney's Penn. Supreme Ct. Biss. C. Ct. (U. S.) Bissell's U. S. Seventh Circuit Ct. Black, (U. S.) Black's I/. S. Supreme Court. Blackf. (Ind.) Blackford's Indiana Supreme Ct. Bland, (Md.) Eland's Md. High Ct. of Chancery. Blatchf. (U. S.) Blatchford's U. S. Second Circuit Ct. Blatchf. & H. (U. S.) Blatchford & Rowland's Admiralty, U. S. District Court. South. District, N. Y. Blatchf. P. C. (U. S.) Blatchford's Prize Cases, South. Dist. of N. Y. Bloom. Man. Cas. (N. J.) .... Bloomfield's Manumission Cases. B. Mon. (Ky.) B. Monroe's Kentucky Ct. of Appeals. Bond, (IL S.) Bond's Sixth Dist., U. S. Circuit Ct. Bosw. (N. Y.) Bos worth's N. Y. City Superior Ct Bra-.lf. (N. Y.) Bradford's N. Y. Surrogate's Ct. Brad. App. (111.) Bradwell's Illinois Appellate CL (594) INDEX OF ABBREVIATIONS. 595 Brayt. (Vt.) Brayton's Vermont Superior Court. Breese, (111.) Breese's Illinois Sup. Court Reports. Brev. (S. C.) Brevard's S. Carolina Constitutional County and District Ct. Brews. (Pa.) Brewster, Penn. Various Courts. Bright. (Pa.) Brightly's Ct. of Nisi Prius at Phila., and Penn. Supreme Ct., IV. Circuit. Brock. (U. S.) Brockenbrough's U. S. Circuit Ct., IV. Circuit Brown, (U. S.) Brown's Admiralty, U. S. District Ct. Brown, (Mic.) Brown's Michigan Nisi Prius Cases. Browne, (Pa.) Browne's Penn. Ct. of Common Pleas. Burn. (Wis. T.) Burnet's Wis. Territorial Supreme Ct. Bush. Eq. (N. C.) Busbee's North Carolina Sup. Ct. in Equity. Busb. L. (N. C.) Busbee's N. C. Supreme Ct. at Law. Bush, (Ky.) Bush's Kentucky Ct. of Appeal. Cai. (N. Y.) Caine's N. Y. Supreme Court. Cai. Cas. (N. Y.) Caine's Cases, N. Y. Court of Errors. Cal. (Cai.) California Supreme Court. Call, (Va.) Call's Virginia Ct. of Appeals. Cam. & N. (N. C.) Cameron & Norwood's N. Carolina Court of Con- ference. Ch. (U. S.) . ' Chancery Reports. C. Ct Circuit Court Reports. Chand. (Wis.) Chandler's Wisconsin Supreme Ct. Chase, (U. S.) Chase's U. S. IV. Circuit Ct. (old). Cheves, (S. C.) Cheves' S. Carolina Court of Appeals. Cheves, Ch. (S. C.) Cheves' S. Carolina Ct. of Appeals in Chancery. Chi. L. N. (111.) Chicago Legal News. Chip. D. (Vt.) D. Chipman's Vermont Sup. Ct. Rept's. Chip. N. (Vt.) N. Chipman's Vt. Supreme Ct. Reports. Cin. (Ohio) Cincinnati -Superior Court Reports. Cir. Ct Circuit Court. City Hall Rec. (N. Y.) Roger's City Hall Recorder, Various Courts. Cit. Citations from Quincy to 122 Mass. Reports. Clarke, Ch. (N. Y.) Clarke's N. Y. Court of Chancery. Clarke, L. J. (Pa.) Clarke's Penn. Law Journal. Cliff. C. Ct. (U. S.) Clifford's U. S. First Circuit Court. Code, R. (N. Y.) Code, N. Y., New Series, Various Courts. Col. Cas. (N. Y.) Coleman's Cases, N. Y. Supreme Ct Col. & C. Cas. (N. Y.) Coleman & Caine's Cases, N. Y. Supreme Ct Colo. S. Ct. R. (Col.) Colorado Supreme Court Reports. Colow. (Tenn.) Coldwell's Tenn. Supreme Ct. Reports. Conf. (N. C.) Cameron & Norwood's Conference Reports. Conn. (Conn.) Connecticut Supreme Court of Errors. Const. N. S. (S. C.) Mill's Rept's, S. C. Constitutional Court. Const. T. (S. C.) Treadway's Constitutional Ct. Reports. Cooke, (Tenn.) Cooke's Tenn. Sup. Court Reports. Cooper, Ch. (Tenn.) Cooper's Tenn. Supreme Ct. Reports. Cow. (N. Y.) Cowen's N. Y. Supreme Court and Court of Errors. Coxe. (N. J.) Coxe's New Jersey Sup. Court Reports. Crabbe, (U. S.) Crabbe's U. S. Eastern Dist. Ct. of Penn. Cranch, (U.S.) Cranch's U. S. Supreme Court. Cranch, C. Ct. (U. S.) Cranch's U. S. Circuit for the District of Columbia. Court of Cl. (D. C.) '. . Court of Claims, Washington, D. C. Curt. Dec. (U. S.) Curtis' Decisions, United States Reports. Curt. C. C. (U. S.) Curtis' U. S. Circuit Ct., First District. Cush. (Mass.) Cushing's Mass. Supreme Ct. Reports. Dak. T Dakota Territorial Supreme Ct. Dall. (U. S.) Dallas' U. S. (old) Courts and Courts of Penn. Daly, (N. Y.) Daly's N. Y. Ct. of Common Pleas. 596 INDEX OF ABBREVIATIONS. Dana, (Ky.) Dana's Kentucky Ct. of Appeals. Davies, Dist. (U. S.) Davies' U. S. Dist. Ct. of Maine. Day, (Conn.) Day's Conn. Supreme Ct. of Errors. Deady, (U. S.) Deady's U. S. Courts of Cal. and Oregon. Del. Ch. (Del.) Delaware Chancery Court Reports. Den. (N. Y.) Denio's N. Y. Sup. Court and Court of Appeals. Desau. (S. C.) Desaussure, S. C. Ct. of Chancery and Ct. of Ap- peals. Dev. Ct. of Cl. (D. C.) Devereux's U. S. Court of Claims. Dev. Eq. (N. C.) Devereux's North Carolina Sup. Ct. in Equity. Dev. L. (N. C.) Devereux's N. C. Supreme Ct. at Law. Dev. & B. (N. C.) Devereux & Battles' N. C. Sup. Ct. in Equity. Dill. (U. S.) Dillon's U. S. Circuit Ct, VIII. Circuit. Disney, (Ohio) Disney's Cincinnati Supreme Court. Dist. (U. S.) District Court Reports. Dougl. (Mich.) Douglass' Mich. Supreme Ct. Repoits. Dudley, (Ga.) Dudley's Georgia Sup. Ct. Reports. Dudley, (S. C.) Dudley's South Carolina Ct. of Appeals. Duer, (N. Y.) Duer's N. Y. City Superior Ct. Reports. Dutch. (N. J.) Dutcher's New Jersey Ct. of Appeals. Duv. (Ky.) Duval's Kentucky Court of Appeals. Edm. Sel. C. (N. Y.) Edmond's Selected Cases, N. Y. Various Ct's. Edw. Ch. (N. Y.) Edward's N. Y. Vice Chancellor's Court and Su- preme Court. Eq , . . . Equity Reports. Fairfield, (Me.) . Maine Supreme Court Reports. Fish. Pr. Cas. (U. S.) Fisher's Prize Cases, Penn. District Ct. Fish. Pat. Cas. (U. S.) Fisher's Patent Cases, U. S. Circuit Courts. Fish. Pat. Rpt. (U. S.) Fisher's Patent Reports, U. S. Circuit Ct's. Fost. (N. H.) Foster's New Hampshire Supreme Court. Ga. (Ga.) Georgia Supreme Court Reports. Ga. Sup. (Ga.) Georgia Supplement to Vol. 33. Ga. Dec. (Ga.) Georgia Decisions of Georgia Sup. Reports. Gall. (U. S.) Gallison's U. S. First Circuit Court Reports. Gill, (Md.) Gill's Maryland Court of Appeals. Gill & J. (Md.) Gill & Johnson's Md. Court of Appeals. Gilm. (111.) Gilman's 111. Supreme Court Reports. Gilm. (Va.) Gilmer, Virginia Court of Appeal. Gilp. (U. S.) Gilpin's U. S. Eastern District Ct. of Penn. Grant, Cas. (Pa.) ...... Grant's Cases, Penn. Supreme Court. Gratt. (Va.) Grattan's Virginia Court of Appeals. Gray, (Mass.) ....... Gray's Mass. Supreme Court Reports. Green, Ch. (N. J.) . . . . . . Green's New Jersey Court of Chancery and Court of Errors and Appeals. Green, C. E. (N. J.) Greene's N. J. Ct. of Chancery of Errors and Ap- peals. Greene, (Iowa) . , Green's Iowa Supreme Court Reports. Greenl. (Me.) Greenleaf 's Maine Supreme Court Reports. Hall, (N. Y.) Hall's New York Superior Court Reports. Hals. Ch. (N. J.) Halsted's N. J. Ct. of Chancery, Errors and Appeals. Hals. (N. J.) Halsted's N. J. Ct. of Chancery, Errors and Appeals. Handy, (Ohio) Handy's Cincinnati Superior Court. Har. & G. (Md.) Harris and Gill's Maryland Court of Appeals. Har. & J. (Md.) Harris & Johnson's Maryland Court of Appeals. Har. & Me. (Md.) Harris and McHenry's Provincial Ct. and Court of Appeals. Hard. (Ky.) Hardin's Kentucky Court of Appeals. Harp. (S. C.) Harper's S. C. Constitutional Court. INDEX OF ABBREVIATIONS. 597 Harp. Eq. (S. C.) Harper's S. C. Ct. of Appeals in Equity. Harr. S. A. (Del.) Harrington's Del. Superior Court and Court of Appeals. Harr. Ch. (Mich.) Harrington's Mich. Court of Chancery. Harr. (N. J.) . . Harrison's N. J. Supreme Ct. Reports. Hawks, (N. C.) Hawks' North Carolina Supreme Ct. Reports. Hayw. (N. C.) Haywood's N. C. Superior Ct. of Law and Equity. Hayw. (Tenn.) Haywood's Tenn. Sup. Ct. of Errors and Appeals. Head, (Tenn.) ....... Head's Tenn. Supreme Court Reports. Heish. (Tenn.) Heishell's Tenn. Superior Court Reports. Hempst. (U. S.) Hempsted's U. S. Courts and Territorial Courts, in Arkansas (old circuit). Hen. & M. (Va.) Hening and Munford's Virginia Court of Appeals. Hill, (S. C.) Hill's S. C. Court of Appeals, 3 Vols. in 2. Hill, (N. Y.) Hill's New York Supreme Court and Ct. of Ap- peals. Hill, Ch. (S. C.) Hill's South Carolina Court of Appeals in Chan- cery. Hill & D. Supp. (N. Y.) . . . . Lalor's Supplement to Hill and Denio's N. Y. Su- preme Court and Court of Appeals. Hilt. (N. Y.) Hilton's New York Ct. of Common Pleas. Hoff. La. Cas. (U. S.) Hoffman's Land Cases U. S. Dist. Ct. Northern Dist. of California. Hoffm. Ch. (N. Y.) Hoffman's N. Y. Assistant Vice Chancellor's Court. Holmes, (U. S.) Holmes' U. S. First District Circuit Court. Hopk. Ch. (N. Y.) Hopkins' N. Y. Court of Chancery. Houst. (Del.) Houston's Criminal Reports of Delaware. Houst. (Del.) Houston's Del. Superior Ct. and Court of Errors and Appeals. How. (U. S.) Howard's U. S. Supreme Court Reports. How. Ap. Cas. (N. Y.) Howard's Appeal Cases New York Court. How. Pr. (N. Y.) Howard's Practice N. Y. Various Courts. Hughes, (Ky.) Hughes' Kentucky Reports. Hughes, (U. S.) Hughes' U. S. IV. Circuit (old). Humph. (Tenn.) Humphrey's Tenn. Supreme Court. Hun, (N. Y.) Hun's N. Y. Supreme Court Reports. Idaho, T. (Idaho) Idaho Territorial Supreme Ct. Reports. 111. (111.) Illinois Supreme Court Reports. 111. Br. (111.) Bresse's Illinois Sup. Court Reports. 111. Gilm. (111.) Oilman's Illinois Sup. Ct. Reports. 111. Peck, (111.) Peck's Illinois Sup. Ct. Reports. 111. Scam. (111.) Scammon's 111. Supreme Ct. Reports. Ind. (Ind.) Indiana Supreme Court Reports. Iowa, (la.) Iowa Supreme Court Reports. Ired. L. (N. C.) Iredell's N. Carolina Sup. Ct. at Law. Ired. Eq. (N. C.) . Iredell's N. C. Supreme t- in Equity. Jeff. (Va.) Jefferson's Virginia General Court Reports. J. J. Marsh. (Ky.) J. J. Marshall's Ky. Court of Appeals. Johns. (N. Y.) . . , Johnson's N. Y. Supreme Court and Court of Er- rors, Reports. Johns. Cas. (N. Y.) Johnson's Cases N. Y. Supreme Court and Court of Errors. Johns. Ch. (N. Y.) Johnson's N. Y. Court of Chancery Reports. Jones, Eq. (N. C.) Jones' North Carolina Court in Equity. Jones, L. (N. C.) Jones' N. C. Supreme Court at Law. Kan. (Kan.) Kansas Supreme Court Reports. Keyes, (N. Y.) Keyes' Reports of Court of Appeals. Kirby, (Conn.) Kirby's Connecticut Superior Court. ;598 INDEX OP ABBREVIATIONS. La. (La.) Louisiana Reports. La. Ann. (La.) Louisiana Annual Supreme Court. Lalor's Sup. (N. Y.) Lalor's Supplement to Hill & Deino's N. Y. Re- ports. Lan. (N. Y.) Lansing's New York Supreme Court. Law, Reps. (N. C.) Carolina Law Repository Sup. Court. Lea, (Tenn.) Lea's Tennessee Reports. Leigh, (Va.) Leigh's Virginia Ct. of Appeals and General Court. Legal Inst. (Pa.) Legal Institute Pa. Reports, Various Courts. Legal Gaz. (Pa.) Legal Gazette Reports of Various Courts. Litt. (Ky.) Littell's Kentucky Court of Appeals. Litt's Sel. Cas. (Ky.) ...... Little's Select Cases, Ky. Court of Appeals. Lock. Rev. Cas Lockwood's Reversed Cases. Low. (U. S.) Lowell U. S. Dist. Court of Mass. Mar. or A. K. Mar. (Ky.) . . . . A. K. Marshall's Rep's of Ky. Court of Appeals. Mr. J. J. or J. J. Mar. (Ky.) . . . J. J. Marshall's Reports of Marshall's Decisions,. U. S. Circuit Court. Mart. L. (La.) Martin's Reports, La. Supreme Court. Mart. N. S. (La.) Martin's Reports, New Edition, Supreme Ct. Mart. V. R. (N. C.) Martin's North Caro. Various Reports. Mart. & Y. (Tenn.) Martin & Yerger's Tenn. Supreme Court. Mas. (C. Ct.) (U. S.) Mason's U. S. First Circuit Court. Mass Massachusetts Supreme Court. Me All. (D. C.) McAllister's U. S. District Ct. of California. McArthor, (U. S.) McArthur's Reports of District of Columbia. McCahon, (U. S.) McCahon's U. S. District Ct. of Kansas. McCart. (N. J.) McCarter's N. J. Court of Chancery and Court of Errors and Appeals. McCord, (S. C.) McCords, South Carolina Constitutional Ct. and Court of Appeals. McCord, Ch. (S. C.) McCord's S. Caro. Court of Appeals in Chancery. McCrary, (U. S.) McCrary's U. S. VIII. Circuit (new). McLean, (U. S.) McLean's U. S. VII. Circuit Court. Me Mull. (S. C.) McMullan's S. Caro. Court of Appeals. McMull. Eq. (S. C.) McMullan's S. C. Ct. of Appeals in Equity. Mel. (Md.) Maryland Court of Appeals. Md. Ch. (Md.) Maryland Chancery Decisions High Court Chan- cery. Me. (Me.) Maine Supreme Court. Me. Fairf. (Me.) , Fairfield's Maine Supreme Court. Me. Greenl. (Me.) GreenleaPs Maine Supreme Court. Meigs, S. C. (Tenn.) Meig's Tennessee Supreme Court Mete. (Ky.) Metcalfe's Ky. Court of Appeals. Mete. (Mass.) Metcalfs Mass. Supreme Court. Mich. S. C. (Mich.) Michigan Supreme Court Reports. Mich. N. P. (Mich.) Michigan Cases at Nisi Prius. Miles, (Pa.) Miles' Philadelphia District Court. Mill, Const. (S. C.) Mill's S. C. Constitutional Court. Mill. Dec. (U. S.) Miller's Decisions by Woolworth VIII. Circuit of U. S. Court. Miller, (U. S.) Miller's U. S. Supreme Ct. Reports. Minn. (Minn.) Minnesota Supreme Court Reports. Minor, (Ala.) Minor's Alabama Supreme Court. Miss. C. H. (Miss.) Mississippi High Court of Errors and Appeals. Miss. How. (Miss.) Howard's Miss. High Ct. of Errors and Appeals. Miss. Smed. & M. (Miss.) .... Smede & Marshall's Miss. High Ct. of Errors and Appeals. Miss. Walk. (Miss.) Walker's Miss. Supreme Court Reports. Mo. S. Ct. (Mo.) Missouri Supreme Court Reports. Mo. App. (Mo.) Missouri Court of Appeals Reports. INDEX OF ABBREVIATIONS. 599 Mon. or T. B. Mon. (Ky.) . . . . T. B. Monroe's Ky. Court of Appeals. Mon. or B. Mon. (Ky.) . . . . B. Monroe's Ky. Court of Appeals. Mon. Ter. (Mon.) Montana Territory Sup. Court. Morr. (Iowa) Morris' Iowa Supreme Court. Morr. St. Cas. (Miss.) .... Morris' Criminal State Cases. Munf. (Va.) Munfords' Virginia Ct. of Appeals. Murph. (N. C.) Murphy's North Caro. Supreme Court. N. C. Term. (N. C.) North Carolina Supreme Court. N. C. Repos. (N. C.) . . . . North Carolina Repository. N. C. Term. (N. C.) North Carolina Sup. Ct. of Law & Equity. Neb. (Neb.) Nebraska Court Reports. Nev. (Nev.) Nevada Supreme Court Reports. Newb. Adm. (U. S.) Newberry's Admiralty U. S. Various District Courts. N. H. (N. H.) New Hampshire Superior Court. N. H. Fost. (N. H.) New Hampshire Superior Court. N. H. Smith, (N. H.) Smith's New Hampshire Superior Court. N. J. Eq. (N. J.) New Jersey Courts of Chancery, Prerogative, Er- rors and Appeals. N. J. L. (N. J.) New Jersey Law Court of Errors and Appeals. Nott & McC. (S. C.) Nott & McCord's S. C. Constitutional Court. N. Y. App. (N. Y.) New York Court of Appeals. N. Y. Comst Comstock's N. Y. Court of Appeals. N. Y. Kern. . Kernan's N. Y. Court of Appeals. N. Y. Seld Selden's N. Y. Court of Appeals. N. Y. Sup. Ct New York Superior Court Reports. N. Y. Super. Ct New York Supreme Court Reports. N. Y. Surr New York Surrogate Court Reports. Ohio St Ohio State Supreme Court Reports. Olc. Adm. (U. S.) Olcott's Admiralty Dist. Court. Oreg. (Oreg.) Oregon Supreme Court Reports. Overt. (Tenn.) Overton's Tenn. Rep's Various Courts. Pa. S. Ct. (Perin.) Pennsylvania Court Reports. Pa. Le. G. Rep. (Penn.) . . . Pennsylvania Legal Gazette. Paige Ch. (N. Y.) . . . . . . Paige's N. Y. Chancery Reports. Paine C. Ct. (U. S.) Second Circuit Reports. Park. Cr. (N. Y.) Parker's Criminal Reports, Various Courts. Pars. Eq. Cas. (Penn.) .... Parsons Court of Common Pleas First Judicial District in Equity Select. P. St. (Penn.) Penn. State Reports of Supreme Court. Patt. & H. (Va.) Pattonjr. & Heath, Special Ct. of Appeals. Pear. (Penn.) Pearson's Penn. Reports, Various Cts. Peck, (111.) Peck's 111. Supreme Court Reports. Peck, (Tenn.) Peck's Tenn. Supreme Court Reports. Pen. & W. (Penn.) Penrose & Watts Sup. Court Reports. Pet. (U. S.) Peter's U. S. Supreme Court Reports. Pet. Adm. (U. S.) Peter's Admiralty Decision Eastern District of Penn. Pet. C. Ct. (U. S.) Peter's U. S. Third Circuit Court. Phill. Eq. (N. C.) Phillip's North Carolina Sup. Ct. in Equity. Phill. L. (N.C.) Phillip's N. C. Supreme Ct. Rept. at Law. Phil. L. Inst. (Pa.) Philadelphia Legal Inst, Various Courts. Pick. S. Ct. (Mass.) Pickering's Mass. Supreme Court. Pin. S. Ct. (Wis.) Pinney's Wisconsin Supreme Ct. Pitts. L. J. (Pa.) Pittsburg Legal Journal, Various Courts. Port. S. Ct. (Ala.) Porter's Alabama Supreme Court. Pr. Dec. (Ky.) Sneed's Kentucky Printed Decisions. Pt. R Patents Reports. 600 INDEX OF ABBREVIATIONS. Quincy, (Mass.) Quincy's Massachusetts Reports. Rand. Appls. (Va.) RandolPs Virginia Court of Appeals. Rawle, (Pa.) Ralwe's Penn. Supreme Court. Redf. Sur. (N. Y.) Redfield's Surrogate Court. R. I. (R. I.) Rhode Island Supreme Court. Rice, L. (S. C.) Rice's S. Ca. Court of Appeals and of Errors and Law. Rice, Ch. (S. C.) Rice's S. C. Courts of Appeal and Errors in Equity. Rich. L. & Eq. (S. C.) Richardson's Reports in Law and Equity. Rich. Ch. (S. C.) Richardson's Courts of Appeals and Errors in Chancery. Rich. N. C. (S. C.) Richardson's New Serious. (Distinction of Law and Equity has been abolished). Riley, (S. C.) Rileys" S. C. Court of Appeals. Riley, L. (S. C.) Riley's Court of Appeals in Law. R. M. Charlt. (Ga.) R. M. Charlton's Ga. Superior Court. Rob. (La.) Robinson's La. Supreme Court. Rob. (Va.) Robinson's Va. General Court. Robb, Pt. Cas. (U. S.) Robb's Patent Cases Supreme and Circuit Courts. Bobt. (N. Y.) Robertson's N. Y. Supreme Court. Rog. Rec. (N. Y.) . Roger's New York City Hall Recorder. Root, (Conn.) Root's Conn. Court of Errors. Rowell, Vt Sandf. (N. Y.) Sandford's N. Y. Supreme Court. Sandf. Ch. (N. Y.) Sandford's N. Y. Court of Chancery. Saw. C. Ct. (U. S.) Sawyer's U. S. IX. Circuit Court. Sax. Ch. (N. J.) Saxton's New Jersey Court of Chancery. Scam. (111.) Scammon's 111. Supreme Court. Sel. Cas Select Cases. Serg. & R. (Pa.) Sergeant & Rowle's Penn. Supreme Court. Smed. & M. (Miss.) Smedes & Marshall's Superior Court of Chancery. Smed. & M. L. (Miss.) Smedes & Marshall's Superior Court in Law. Smith, E. D. (N. Y.) E. D. Smith's, N. Y. Court of Common Pleas. Smith, (Ind.) Smith's Indiana Supreme Court. Smith, Cond. (Ala.) Smith's Condensed Ala. Reports. Sneed, (Ky.) . Sneed's Decisions of Court of Appeal. Sneed, (Tenn.) Sneed's Tenn. Supreme Court. South. (N. J.) Southard's N. J. Supreme Court. Spears, (S. C.) Spear's S. C. Ct. of Appeals and Errors. Spears, Eq. (S. C.) Spear's S. C. Chancery Reports. Spen. (N. J.) Spencer's N. J. Supreme Court. Sprague, Dist. (U. S.) Sprague's Decisions U. S. District Ct. of Mass. Stew. (Ala.) Stewart's Ala. Supreme Court Reports. Stew. & P. (Ala.) Stewart & Porter's Ala. Supreme Court. Stock. (N. J.) Stockton's Courts of Chancery, Errors and Appeals. Story, C. Ct. (U. S.) Story's U. S. First Circuit Court. Strobh. (S. C.) Strobhart's S. C. Court of Appeals and Errors at Law. Strobh. Eq. (S. C.) Strobhart's S. C. Court of Appeals and Errors and Equity. Sumn. C. Ct. (U. S.) ....... Sumner's U. S. First Circuit Court. Sup. Ct Supreme Court Reports. Swan, (Tenn.) Swan's Tenn. Supreme Court Reports. Sweeney, (N. Y.) Sweeney's N. Y. City Superior Court Reports. Taney, Dec. (U. S.) Taney's Decisions IV. U. S. Circuit Court. Tapp. (Ohio) Tappan's Ohio Courts of Common Pleas. Tayl. (N. C.) Taylor's N. C. Superior Courts of Law and Equity. INDEX OF ABBREVIATIONS. 601 Tenn. (Tenn.) Tennessee General Reports. Tenn. Cooper. (Tenn.) Tennessee Chancery Reports. Tenn. (Tenn.) Tennessee Reports. Term. Rpts. (N. C.) Taylor's N. C. Supreme Court Term Reports. Tex. (Tex.) Texas Supreme Court Reports. Tex. Ct. App. (Tex.) Texas Court of Appeals Reports. Thach. Cr. Cas. (Mass.) Thacher's Mass. Criminal Cases, Boston. Thomp. & C. (N. C.) Thompson & Cook's N. Y. Supreme Court. Thomp. Cas. (Tenn.) Thompson's Tennessee Cases. Treadw. Const. (S. C.) Treadway's S. C. Constitutional Court. Tuck. Sur. (N. Y.) Tucker's N. Y. Surrogate's Court. T. U. P. Charlt. (Ga.) T. U. P. Charlton's Ga. Supreme Court. Tyler, (Vt.) Tyler's Vermont Supreme Court Reports. Utah Ter. (Ut. T.) Utah Territory Court Reports. United States Supreme Court Reports. Va. Cas. (Va.) Virginia Cases of General Court. Van Ness, (U.S.) Van Ness' Prize Cases N. Y. District Court. Vroom, (N. J.) Vroom's New Jersey Sup, Court Reports. Vt. (Vt. ) Vermont Supreme Court Reports. Walk. Ch. (Mich.) Walker's Michigan High Court of Chancery. Wall. (U. S. C. Ct.) . . . . Wallace's C. Ct. Third District. Wall. (U. S. S. C.) Wallace's United States Supreme Court Reports. Wall. Jr. (U. S.) Wallace Jr's. Third District Circuit Court. Ware, (U. S.) Ware's District Court of Maine. Ware, 2. ed. (U. S.) Ware's Second Edition District Ct. of Maine, in- cluding Davies in 2d Volume. Wash. (U. S.) Washington's Third District Court. Wash. T. (W. T.) Washington Territory Supreme Court. Wash. (Va.) Washington's Virginia Court of Appeals. Watts, (Penn.) Watt's Pennsylvania Supreme Court. Watts & S. (Penn.) Watts & Sargeant's Penn. Supreme Court. Wend. (N. Y.) Wendell's New York Supreme Court. Wheat. (U. S.) Wheaton's U. S. Supreme Court. Whart. (Penn.) Wharton's Penn. Supreme Court, Wheel. (N. Y.) Wheeler's New York Criminal Reports. Whit. Pt. R. (U. S.) ....... Whitman's Patent Rep. of United States Cts. Wil. (Ind.) Wilson's Indiana Superior Court. Will. Cit. (Mass.) William's Citations from Quincy to 122 Mass. Wins. Eq. (N. C.) Winston's North Calo. Supreme Court. Wis. (State) Wisconsin Supreme Court Reports. Wood, (U. S.) Wood's U. S. V. Circuit Court Reports. Woodb. & M. (U. S.) Woodbury & Minot's First Circuit Ct. Reports. Wright, (Ohio) Wright's Ohio Sup. Ct. at Law apd Equity. W. Va. (State) West Virginia Sup. Court and Court of Errors. Wythe, (Va.) Wythe's Virginia Chancery Reports. Yates, Sel. Cas. (N. Y.) Yates' N. Y. Supreme Ct. and Ct. of Errors. Yeates, (Penn.) Yeates' Penn. Supreme Court. Yerg. (Tenn.) Verger's Tennessee Sup. Court Reports. Zab. (N. Y.) Zabiskie, N. J. Supreme and Court of Errors. ABBREVIATIONS USED HEREIN IN REFERENCE TO ENGLISH REPORTS. Ad. & E Adolphus & Ellis' Reports. K. B. B. & A Barnewall & Anderson's Reports. K. B. B. & Ad Barnewell & Adolphus' Reports. K. B. B. & C Barnewell & Cresswell's Reports. K. B. Barn. & C Barnewell & Cresswell's Reports. K. B. 602 INDEX OF ABBREVIATIONS. B. R King's Bench Reports. Bing Bingham's Reports, Common Pleas. Beav Beavan's Reports, Rolls Court Bos. & Pul Bosanquet & Puller's Reports. C. P. Bos. & Pul. N. R Bosanquet & Puller's New Reports. C. P. Burr Burrow's Reports. K. B. C. B. ..., Common Bench Reports. C. C. R Common Cases, Reserved. Ch Chancery Reports. Camp. N. P. Campbell's Reports, Nisi Prius. Gary, Gary's Chancery Reports. C. P Common Pleas Reports. C. L. R Common Law Reports. Cl. & Fin Clarke & Finnelly's Rpts. House of Lords. C. P. D Common Pleas Division Reports. Co Coke's Reports. K. B. De G. F. & J De Gex, Fisher & Jones Chancery Reports. De. G. M. & G De Gex, Macnaghton & Gordon's Ch. R. De G. & Sm De Gex & Smale's Chancery Reports. . Dunlop or D Dunlop, Bell & Murray's Court of Session Rpts. El. & El Ellis & Ellis' Queen's Bench Reports. East East's Reports of King's Bench. H. L House of Lords Reports. Hare, Hare's Chancery Reports. K. B King's Bench Reports. L. J Lower Journal Reports in all Courts. Law Rep. C. P. D. . . , . . .Common Pleas Division Reports. L. R Law Review Reports in all Courts. Law Rept. Ap. Ca Appeal Cases Reported. L. T Law Times Reports in all cases. Law Rep. Ch. D Chancery Division Reports. L. T. N. S Law Times Reports, New Cases. Ld. Raym Lord Raymon's Reports. K. B. Macl. & R Maclean & Robinson's Scotch Reports. Man. & Gr Manning & Granger's Reports. C. P. M. & S Maule & Selwyn's Reports. K. B. Moo. & R Moody & Robinson's Chancery Reports. Myl. & Cr Mylne & Craig's Chancery Reports. N. P Nisi Prius Reports. N. R New Reports, Bosanquet & Puller. C. P. N. S. . . , New Series Reports. Q. B Queen's Bench Reports. Ry. & M Ryan & Moody's Nisi Prius Reports. T. R Term Reports, Durnford & East. K. B. Taun Taunton's Reports. C. P. Ves. Sen Vesey Sen. Chancery Reports. Ves. Jr Vesey Jr. Chancery Reports. W. R Weekly Reports in all courts. INDEX OF ABBREVIATIONS. 603 ABBREVIATIONS USED IN REFERENCE TO CANADIAN REPORTS. Ca Canada Reports. Grant Ch Upper Canada, Ontario Chancery Reports. K. B. . . King's Bench Reports. Low. Ca Lower Canada Reports. Low. Ca. J. ........ Lower Canada Jurist. Low. Ca. L. J . Lower Canada Law Journal. Ont Ontario Reports. Pugs. N. B. ........ Pugsley's New Brunswick Reports. Q. B. N. S Queen's Bench Reports, New Series. R. de Leg Revue de Legislature Jurisprudence. Sp. Ct . . . Supreme Court Dominion Reports. Up. Ca. Ch Upper Canada Chancery Reports. Up. Ca. C. P. . . . . , . . Upper Canada Chancery Reports. Up. Ca. N. S Upper Canada New Series. Q. B. APPEAL CASES. Up. Ca Appeal Cases, Upper Canada. Law Rep. Q. B. D Queen's Bench Division Repts. Law Rep. C. P. D Common Pleas Division Repts. Law Rep. Ex. D. ...... Exchequer Divisions Repts. Law Rep. Prob. D. ..... Probate Division Reports. ABBREVIATIONS USED IN REFERENCE TO IRISH REPORTS. I. R. C. L.. ....... Irish Reports, Common Law Cases. Ir. Law & Ch. ....... Irish Law & Equity Repts. New Series. THE LIBRARY UNIVERSITY OF CALIFORNIA Santa Barbara THIS BOOK IS DUE ON THE LAST DATE STAMPED BELOW. r A bo09ieF481 y\ v\mf viti ^.MI i v