'SW, Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nEHORY OF JUDGE DOUGLASS BQARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Oaugliter A. M. BQARDMAN and ELLEN D. WILLIAMS --^*fUlU: ^, - - Cornell University Library KF 970.3.M75 V.1 C.2 Standard decisions on questions in law a 3 1924 018 848 667 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018848667 STANDARD DECISIONS -ON- QUESTIONS IN LAW A^ EQUITY RELATING TO BANKS & BANKING RENDERED IN THE HIGHER COURTS OF THE UNITED STATES, CANADA, ENGLAND, lEBLAND AND SCOTLAND. By James ^iiiRbE, "VOL'. 1.] or.A.isr"CJ-A.ie-s-. [isTo. i. NEW YORK; EDWARD G. WARD, 7 college'' PLACE. 1879. Issued semi-annually— In January and July. Price $ 2-50 each number. Every number is complete in itself. . '* STANDARD DECISIONS QUESTIONS m LAW AND EQUITY HKLATING TO BANKS, BANKING COMMERCE, RENDBKED IN THE HIGHER COURTS OF THE UNITED STATES, CANADA, ENGLAND, IRELAND AND SCOTLAND. By JAMES MONEOB. Vol. I. NEW YORK : EDWARD a. WARD, 7 COLLEGE PLACE. 1879. PREFACE, The purpose of this work is to present in a con- venienl? and concise form the most important and val- uable decisions of the higher courts, especially relating to Banks and Bankers, to whom this book will be a guide in managing their business. The great need of such a work has induced the author to comply with numerous requests. It is a conflict of interests and minds which creates law-suits, and it is the mission of this work to present the law as it is interpreted in the courts. One cannot consult his lawyer upon every occasion, neither can he be expected to always remember the rules of law governing each transaction as they may be re- quired in his daily business ; to meet these demands, and the wants of the Legal Pkofession, the Standard Decisions are presented as sure and final authority. STANDARD DECISIONS ON QUESTIONS OF LAW EKLATING TO EANKS, BANKINGS AND COMMERCE. ACCEPTANCE. 1. Acceptance.— Yerbal 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 ■al., 85 111. 546. ACCOMMODATIOISr. 2. Accommodation Acceptance.— i7o^^■ce. — 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 business, and a circumstance indicating to the payee the accommodation character of the acceptance. Bloom V. Helm, 53 Miss. 21. ACCOUNT STATED. 3. Account Stated.— 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 cir- cumstances must be such as to justify an inference of 3 ADMINISTRATORS — ADVICE OF OOtrNSEL. 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 delivery to him,, and his omission to object will not be taken as an ad- mission of their correctness, and is not primoj facie proof of the account. The mere rendering of an ac- count does not make it an account stated, and an omission to object to it raises only a presumption of assent, which may be rebiitted by circumstances tend- ing to a contrary inference. Guernsey v. Bexford, 18 Sickels N. Y. 631. ADMINISTKATORS. 4. Administrators.— The written acknowledgment of a debt by an administrator will not bind the succession if such debt does not really exist. An administrator cannot avail of any defect in a legal proceeding caused by his fault. Succession of Margaret McAuley, 29 La. 33. ADVICE OF COUNSEL. 5. AdTice of Counsel.— ^5 a defense. — Where a party,, in good faith, consults with a licensed attorney, and acts upon his advice in making a complaint for the arrest of another, he may show that fact in defense, 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. A party seeking the advice of counsel as to commencing a criminal prosecution must act in good faith and with- out gross negligence, and not withhold any informa- tion with an intent to procure an opinion that might operate to shelter and protect him against a suit. If a party culpably or negligently withholds from counsel any material fact, the advice will not protect him. But where the counsel advised with is already conver- sant with a material fact, by being an attorney of the AGENT. 3 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. Fer Breese, J., Brown v. Smith, 83 111. 291. AGENT. 6. Agent.— Where an agent to loan money takes in- sufficient 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 se- curity, and still hold the agent boxind for any de- ficiency which, after due diligence, he suffers on it. Gruemsey v. Hexford, 18 Sickels, N. Y. 631. 7. Agent.— In an action for liquors sold and delivered, to which the defence was that the goods were sold to a third person, there was evidence that the defendant told the plaintiff's agent that he had bought 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 defend- ant 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 de- fendant, in which the defendant's name appeared as the person ordering the goods, and the letter was pro- duced and admitted in evidence, although it had not been read by the third person. Held, that there was sufficient evidence that the third person was the agent of the defendant, and that the letter was admissible in evidence. Lozier v. Grafts, 123 Mass. 480. 4 AGENT. 8. Agent.— 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. 9. Agent— B., a broker, advised A. to sell certain un- registed bonds and bay 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 hinj, "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 al- ways anxious about them, for the reason that, if lost or stolen, I could recover nothing. You will please in- vest 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 in- terest." "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 second- mortgage bonds, all of which were unregistered. Held, that, if he acted iu good faith, it was within the scope of the authority conferred upon him by the letter of A. Matthews v. Fuller, 123 Mass. 446. 10. Agency.— 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 consent of both principals, is consistent with public policy, is not here decided. Meyer, et at. v. Hanchett, 43 Wis. 246. 101^. Agency.— A principal who employs an agent to do a legal thing, is not liable in damages for any ille- gal act of the agent done in the execution of the man- date, to which the principal was not accessory, or privy. Andreas Bichoux v. Mayer Bros., 29 La. 828. 11. Agency.— It is a general rule, of almost universal application that, where a person acts by an agent, the AGENT. 5 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 lie learns it, hold him responsible for its performance, and the principal may, on showing the agency, claim and enforce the con- tract, precisely as if entered into by himself. Balier Y. Garvey, 83 111. 184. 12. Agency. — 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 re- present a defendant in a suit must be shown expressly, or by irresistible implication. Mrs. Marie E. Dawson v. Marie Landreaux, 29 La. 363. 13. Agency.— The principal is bound by any contract made by his agent which is necessary to carry out the objects of the agency ; and no confidential limitation of the mandate can operate to the prejudice of any innocent third person. E. H. Farrar v. Stephen Dun- can, 29 La. 126. 14. Agency.— 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 es- tops himself from any recourse against the innocent purchaser of his property. R. N. Ogden v. A. Mar- cJioud, 29 La. 61. 15. ks^ncj.— Personal liability of .—Am action can- not be maintained against an agent on a contract execu- ted by him in behalf of his principal, unless it contains apt words to charge him personally, even though he acts without authority or in excess of authority ; but he may become personally liable on a contract containing apt words to bind him, and then the words descriptive of his agency will be rejected as surplusage. Hancock V. YunTcer, et al., 83 111. 208. 16. Agency.— Where a principal has dealt with a mer- chant through an agent acting under a written power 6 AGENT. of attorney, the merchant may prove by parol the cor- rectness 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 whiph 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 proceeds on the orders of the agent. O. W. Sentell & Co., in liquidation v. Mrs. M. O. Kennedy and Hus- land, 29 La. 679. 17. Agent.— The good faith of the agent does not ex- onerate him from liability to his principal, if he has been in fact negligent, or has disregarded orders. BanTc of Owenshoro v. Western BanTc, 13 Bush, Ky. 526. 18. Agency. — A member of a copartnership, after the dissolution, has no agency growing out of the former partnership relation to create or to perpetuate a lia- bility of his lace copartner for partnership indebted- ness, as against the operation of the statute of limita- tions. Tate V. Clements, 16 Florida, 339. 19. Agent, and ks^naj.— Unauthorized Sale. — Where bonds are delivered to an attorney-at-law and business agent, not a dealer in bonds, for the purpose that he should collect the amoiint 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. 20. Agent.— An agent of an undisclosed principal may be treated as the principal. Welch v. Ooodwin, 123 Mass. 71. 21. As^ut.— Authority. — Authority by a principal to an agent to invest his money, and look after his busi- ness generally, will not enable the agent to sell his AaEEEMENTS. 7 principal's property, even such as may be acquired as the result of the investment. Smith, et al. v. Steplien- ■son, et at., 45 Iowa, 645. 23. Ajse:\i.t.— Notice. — 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 principal. Phila- delphia V. LocTchardt, 73 Penn. 211. 23. Asent—Hailroad Corporation.— A railroad cor- 3)oration conferred upon its president, by a by-law, authority to act as "business and financial agent" of the corporation. 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 confined to the ordinary business of the corpora- tion ; 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 Oregon, 125. AGEEEMEJSTTS. 24. Agreement which is forbidden by law, expressly, or by implication, or which is against public policy, will not be enforced in a court of law. Neither will an executed contract resting on such a consideration be relieved against in equity. Ratcliffe v. Smith, 13 JBush, Ky. 172. 25. Agreement.— 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. Curab. Bone Co. v. Atwood Lead Co., 68 Me. 167. 26. Agreement to pay interest upon interest at the time due and unpaid, is valid and binding. When a debtor, upon whose obligation installments of interest 8 ASSIGNEE — ASSIGNMENTS. which had from time to time become due remain un- paid, entered into an agreement to pay the said obliga- tion with compound interest, the promise is met by the payment of simple interest upon the principal 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 in- terest annually for the whole period, which interest has- become due by the terms of the obligation. The mer& 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 cir- cumstances tending to a contrary inference. Toland. V. Sprague, 12 Pet. 330. Guernsey, et al. v. Rexford,. Adm. ApllL, 18 Sickels, N. Y. 631. ASSIGNEE. 27. Assignee of Motts^ge.— In possession. — The assignee of a mortgage, after condition broken, being in pos- session 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. OorJcley, 83 IlL 109. 28. Assignee.— Time of filing claims. — A creditor who- fails to file his claims with the assignee within three months after the first publication of the notice of as- signment is not entitled to share pro rata in the divi- dends of the estate. In the matter of the assignment of Holt, 45 Iowa, 301. ASSIGNMENTS. 29. Assignments.— The statute provision that blank, assignments shall be taken as of a date most to the ad- vantage of the defendant, only applies in the absence ASSUMPSIT. , 9 of evidence as to the date of the assignment. Trieber V. Oom. Bank of Si. Louis, 31 Ark. 128. 30. Assiguraent— The surety in a bond, upon tender of the debt, is entitled under the statute to an assign- ment of the bond, if demanded ; and a refusal to make such assignment is a discharge of the surety, per se, irrespective of the question whether, in consequence of such refusal, the surety has sustained injury. MerrUmn V. Godwin, et al., 2 Del. 236. 31. Assigumeut— 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. 32. Assignment— Glvhiff preferences — when and to what extent void under bankrupt act. — Although an assignment giving preferences is void under the bank- rupt act, under the conditions therein provided, it is- void only as to persons and proceedings under that act, and except as to such persons and proceedings, it is valid as ever. Williams v. Pitts, 55 Howard, N. Y. 831. 33. Assignmentof Stock.— The assignee of stock in aji insurance company, by assignment and delivery of the certificate of stock, and notice to the company, has a superior right to that of a subsequent attching creditor of the assignor, although there be a valid by-law of the company, embodied 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 assign- ment of the stock. State Ins. Go. v. Gennett, 2 Tenn. Eq. 100. ASSUMPSIT. 34. Assumpsit lies only on a claim of ownership. One who has only a mortgage lien on goods cannot 10 ATTACHMENT — ATTOENET. bring assumpsit for their value against one who has taken them to satisfy a claim. Randall, et al. v. Hig- bee, 37 Mich. 40. ATTACHMENT. 85. Attachment.— 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 as- signed 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 Howard, N. Y. 886. ATTORNEY. 36. Attorneys.— (reTieraZ powers. — The acts of an at- torney in directing the levy upon or taking of goods upon process are in excess of his general powers as at- torney, and in the absence of special authority, do not subject his client to liability. WelsJi v. Cochran, 18 Sickels, N. Y. 181. 37. Attorney.— An attorney who purchases of a client a claim which is the subject of litigation, in case the propriety of such purchase is questioned, is bound to show the perfect fairness, adequacy, and equity of the transaction. Dunn v. Record, 63 Me. 17. 38. 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 dis- bursements. An objection, upon this ground, to his right to recover, is not too late, v/hen taken after the argument, but before the charge of the judge. Per- Icins V. McDuffee, 63 Me. 181. • . 39. Attorney.— Q/" a contingent fee. — Where an attor- ney at law agrees to prosecute a suit or claim for one- half of whatever judgment is recovered, if no judg- ment is recovered he will be entitled to no compensa- BAILEE — BANKS AND BANKING. 11 tion, when the failure to recover is not the fault of the client. Fraatz v. Oarrison, et al., 83 111. 60. BAILEE. 40. Bailee's Relinquishment.— The voluntary relinquish- ment by the bailee of possession of the subject of the bailment discharges his lien unless it is consistent vpith the contract, the course of business, or the intention of the parties, that it should continue. Spaulding v. Adams, 32 Me. 212 ; also, Banforth v. Pratt, 42 Me. 52 ; and Robinson v. Larrabee, 63 Me. 116. 41. ^A\\^Q.— Forfeiture ofMs rights. — 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. Robinson v. Larrabee, 63 Me. 116. BANKS AND BANKING. 42. Banks. — A depositor cannot maintain an action against a bank, without a previous demand by check or otherwise. Doanes v. Phcenix Bank, 6 Hill, N. Y. 297. 43. Banks and Banking.— Where the dealings between a bank and a customer were entered in a single ac- count, the latter being credited therein with the pro- ceeds of notes discounted, with drafts accepted, and moneys deposited ; and when, in accordance with the uniform custom of dealing, endorsed notes of the cus- tomer discounted by the bank were charged to his ac- count 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 12 BILLS OF EXCHANGE. of the notes was thereby discharged. Croclcer v. Whitney, 71 N". Y. 161. 44. Banker.— When a banker receives a negotiable instrament for collection, it is his duty to cause it to be presented for payment at maturity, and if refused, protested, so as to charge the endorser. The failure to perform this duty will render him liable for damages thereby occasioned. In an action to recover for such damages the solvency of the endorser is a material in- quiry. It is competent for the defendant in such ac- tion to prove that the endorser was, and continues to be insolvent, and that therefore no damages were oc- casioned by the failure to protest the note. Steele v. Russell, 5 Neb. 211. 45. '^wHiis,.— 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 ex- tend such accommodation or not. The authority of the cashier cannot be questioned in an action by the bank to recover money. The case of Union Bank v. Mott, 39 Barb. 180 ; affirmed in Union Oold Mining Co. v. MocJcy ML Nat. Bank, 2 Colorado, 248. BILLS OF EXCHANGE. 46. Bill of Exchnnge.— Disposal of proceeds. — A bill of exchange specially indorsed, " Pay J. C. or order on ac- count of B. G. & S.," was indorsed generally by J. C, sent by him to his correspondents, and paid by the drawers. J. C. failed about an hour before this pay- ment was made, in debt to his correspondents, and this failure was known about an hour after payment made. His correspondents applied the amount of the pay- ment to reducing their claim against J. C. In an ac- tion by B. G. & S. against these correspondents to re- cover the amount of the payment,- — Held, that the spe- cial indorsement showed that no consideration had BIi!lS OJF EXCHAISTGE. 13 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., Gr. & 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 defend- ants, not having 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 enti- tled to recover. A general endorsement of bills is priTna facie evidence of property in the indorsee : but notwithstanding a general endorsement, paper sent only for collection will still remain the property of the sender as to all persons having notice. Blaine v. Bourne, 11 R. I. 119 ; also BanTc 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. 47. Bill of Exchange.— Acceptance of a bill of ex- change in these words: "Accepted. Payable after my advances are paid," may be explained by parol evidence, so far as to show what advances were meant, even including future advances. A conditional ac- ceptance 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 performed. Shaclcelford v. Hooper, 54 Miss. 716. 48. Bill of Exchange.— The intention to assign a fund in the hands of another, founded ujpon sufficient con- sideration and expressed by a bill of exchange, oper- ates 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 consideration, a bill of exchange upon B. for the whole amount of the fund ; the bill of exchange was immediately endorsed by C. to D. (re- siding 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 14 BILLS OP EXCHAKGB. of it until 1866, when he was informed of the remit- tance 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 pur- chased from A. ; D. thereupon, in 1876, made a demand upon A. for payment to hii^ of the fund, which A. declined to pay, and D. thereiipon 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 forwarded the bill of ex- change 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. 49. Bills of Exchange.— Z)rffiM% and accepted hy the same parties — Custom — Re-excTiange. — 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 docu- ments 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 custom as to allovping a fixed percentage by way of liquidated damages in lieu of exchange, re-exchange, 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 London, 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 to recover damages by way of re-exchange. BILLS OP EXCHANGE. 15 The right to "re-exchange," in the absence of ex- press agreement, arises when the holder of a bill who has contracted for the transfer of funds from one coun- try to another has sustained damages by its dishonor, through having to obtain funds in the country where the bill was payable. " Re-exchange" is the measure of those damages. Willans v. Ayers, 41 Eng. Law Reports, 3 Appeal Cases, 148 — 1878. 50. Bills of Exchange. Accommodation drawer and endorser. — Remittitur of judgment against acceptor. — H. drew and endorsed a bill of exchange on A. for the accommodation of the latter, who discounted it at a bank. Held., a remittitur by the bank of a judgment on the bill against A., discharged H. from liability as drawer and endorser. Case v. Hawkins, 53 Miss. 702. 51. Bills of Exchange. — Protest., time of. — In an appeal by the endorser of a bill of exchange who had been condemned with the makers, — Held., that to hold the endorser, demand of payment ought to have been made on the third day of grace, with protest and notifica- tion, 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. 52. Bill of Exchange. — RigMs of Holder. — If the holder of a bill of exchange locks it np for two years he makes it his own, and cannot have recourse to the person from whom he received it. Rouleaus. Touran- geau, 2 Rev. de Leg. 30, K. B. 1820. 53. Bill of Exchange. — How Payaile.— Action on draft drawn in New York for goods sold and delivered there, and accepted in Montreal, the price charged being in United States currency. Held, that the draft was pay- able according to such currency. Oopcutt, et al. v. McMasters, 7 L. 0. J. 340 ; S. C. 1863. 54. Bills of Exchange.— -i>a™ffl^e5. — Semble, thatin 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 16 BILL TO FOBECLOSE — BILLS OP LADING. ten per cent, are allowable, notwithstanding want of protest (Wagn. Stat. 315, 216, sec. 8). Phillips v. Bvans, IS". Y. 17. 55. Bill of JExchange.— When t?te instrument is donbt- ful. — Gr. drew upon W. requesting Mm to pay an amount named to himself or order. Held, that the instrument could be declared on either as a bill of ex- change or promissory note. Golding v. Waterhouse, 3 New Brunswick, 313. 56. Bill of Exchange.— iVb^zce of drawer'' s effects. — The endorser of a bill of exchange is in all cases en- titled 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 Kev. de Leg., 30 K. B. 1821, 2298 and 2319, et seq. C. C. BILL TO FORECLOSE. 57. Bill to Foreclose.— 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, etal., 83 111. 243. •! BILLS OF LADING. 58. Bill of Lading.— 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 & Macaulay v. Mississippi Central H. R. Co., 29 La. 446. 59. 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 wit- ness who testified thereto, but said he derived his in- formation 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 BILLS AND NOTES. 17 thereof on the part of the shippers was sufficient, and that the testimony was competent. Newell, et al. v. ^mith, et al., 49 Kowell, Vt. 255. 60. Bills of Lading imparted on its face as an absolute undertaking. On the book thereof were printed rules and regulations that modified such undertaking, but it did not appear that the shippers had knowledge there- of. 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. BILLS AND NOTES. 61. Bills and Notes. —Possession of a note is prima facie evidence of ownership, and in an action thereon this title will be respected until denied by pleading. Crosthwait, &c. v. Misener, 13 Bush, Ky. 543. 62. Bills and Notes. — The alteration of a writing, after delivery, by a third person, without the knowledge or consent of the obligee, does not render the contract void, or release the obligors from liability. BlaTcely v. Johnson, 13 Bush, Ky. 197. 63. Bills and Notes.— A material alteration of a com- pleted note by the principal obligor, after it had been signed by his surety, and without his consent or knowl- edge, before its delivery to the payee, renders it void as to the surety. The words "interest to be paid semi- annually," were added to the note in this case, but under such circumstances as not to entitle the surety to recover back the amount of the note and interest paid by him, without any knowledge of the fact that the note had been altered by the principal after the surety signed it. BlaTcely v. Johnson, 13 Bush, Ky. 192. 64. Bills and Notes. — If, on the transfer of negotiable paper, an endorsement is omitted through accident, mistake or fraud, a good title will pass in equity by mere delivery. Hughes v. Nelson, 29 N. J. 547. 65. Bills and TioUs.—NegotiaMlity. — Indorsement. — Assignor. — Liability. — An instrument in the following form is not a negotiable instrument: "$100. Neosho, 2 18 BILLS OF SALE — BONDS. Mo., Aug. 29, 1874. after date, — promise to pay to the order of dollars, for value received, negotiable and payable, without defalcation or discount, with ten per cent, interest thereon from maturity, till paid ; and if said interest shall remain unpaid for the time of one year from the maturity of this note, then the same to become as principal and to bear the same rate of in- terest as principal, and to be compounded annually ; and we do each and severally waive any and all ex- emptions under and by virtue of any execution, exemp- tion, homestead or stay laws of the State of Missouri, or that of any other State ; and we do each further promise and agree to pay a reasonable attorney' s fee for the bringing suit in collection after the same shall become due, payable at the Newton County Bank of Samstag & Stein." See First JSat. B'k of Trenton V. Oav, 63 Mo. 33. And the indorsement by the payee simply makes him liable as assignor to pay after the exercise of due diligence by the holder, and failure to collect from the maker after suit, or in case of the in- solvency or non-residence of the maker, so that a suit would have have been unavailing. Samstag, et al. v. Conley, et al., 64 Mo. 476. 66. Bills or Notes bearing the stamp of a bank may still be put in circulation. Barthe v. Armstrong, 5 R. L.213 ; C. C. 1869. BILLS OF SALE. 67. Bin of Sale.— An absolute bill of sale, executed to secure a debt, operates as a mortgage, and will be post- poned to a subsequent and recorded mortgage. Rogers V. YaugTian, 31 Ark. 62. BONDS. 68. Bonds.— 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. BONDS. 19 69. ^onis.— Jointly and Severally. — In debt on a writing obligatory, as follows : ' ' Know all men by these presents that we, William J. Clark, of the city of Providence, R. I., as principal, and A. E. Burnside, Eben A. Kelly, and John Gorham, as sureties, are held and firmly bound unto the President, Directors and Company of the Commercial National Bank of the city of Providence, E.. 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 Gorham, each as surety respectively in the sum of thirty-three hun- dred and thirty-three and 33-100 dollars, to be paid to them, the said Commercial National Bank, their attor- ney, successors, or assigns, for which payment well and truly to be made, we do hereby bind ourselves, our heirs, executors, and administrators firmly by these presents." Held, That the obligation was several ; Clark being bound in one whole sum of $10,000, and Burn- side, Kelly, and Gorham, being each bound in one sum of |3,33B 1-3. Commercial National BanTc v. Gorham, 11 R. I. 162. 70. Bo^As.— Official. — Held, that if the secretary was entrusted with the funds of the company, notwith- standing it was also the prescribed duty 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 disposition of any funds confided to his care. That the unauthorized act of the president in entrusting funds to the secretary could not discharge 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 super- sede this obligation which pervaded every department of his ofiicial functions. That the company had the 20 BONDS. right under this stipulation to insist upon indemnity for any deviation from the line of his duty to its preju- dice. That in the absence of any provision to the con- trary, such is the necessary 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 construction 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. 71. Bonds. — ^A municipal corporation cannot, without legislative authority, issue bonds in aid of an extrane- ous 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. PerJcins, 94 U. S. 260. 72. Bonds. — In a suit by a bona fide holder against a municipal corporation to recover the amount of cou- pons 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 considered. Town of East Lincoln V. Davenport, 94 U. S. 801. 73. Bonds. — 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. 74. Bonds. — Municipal. — Every dealer in municipal bonds, which upon their face, refer to the statute under which they were issued, is bound to take notice of all its requirements. Where upon their face, tlie coupons refer to the bonds to which they were at- tached, and pur])ort to be the semi-annual interest ac- BONDS. 21 cruing thereon, the purchaser of them is charged with notice of all which the bonds contain. Cromwell v. County of Sac, 96 U. S. 51. 75. Bond and Mortgage to 'bank — Deposit — Set-off. — Defendant borrowed, July 5, 1875, of the New Amster- dam 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 insolvent and passed into the hands of the plaintiff as receiver. At that time there was due and owing defendant, as a deposi- tor of the bank, the sum of $1,748.01. Held, that de- fendant was entitled to a set-off for the amount of his deposit. Receiver of New Amsterdam Savings Bank V. Tartter, 54 Howard, N. Y. 385. 76. Bonds of the State.— Under the previsions of the act of the Legislature authorizing 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 second was that of a trustee hold- ing 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 au- thority to create the first relation. It did have power to enact the second. Holland v. T. State of Florida, etal., 15Fla. 455. 77. Bond under seal, though voluntary, creates a debt, and is impeachable only for fraud. Such a bond is en- forceable against the grantor and all claiming under the grantor as volunteers. Garden, Exfx v. Derrick- son, et al., 2 Del. 386. 78. Bonds Stolen.— 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 before they were received by the defendant, fraud- ulently altered by erasing 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 22 BONDS. take away from them the character of bonds^of the United States or deprive S. of his ownership in them. Commonwealth y. White, 123 Mass. 430. 79. Boni.— Surety. — Where a party has given a bond to another to secure the faithful performance of the con- tract of a third person, it is the duty of the obligee to give reasonable notice to the guarantor of any defalca- tion on the part of the contractor. It is the preroga- tive 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. 80. Where a guaranty is subsequent to the con- tract 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 collateral 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 between the parties ; then the guaranty purports upon its face, and by neces- sary construction, a sufficient consideration. Roberts, et al. V. Womn Wire Mattress Co., 46 Md. 374. 81. Where a contract of guaranty was signed by the. guarantor, and delivered to the agent of the guar- antee, and was in the possession of the guarantee at the time of a suit upon the contract, and was produced by him ; there is sufficient prima facie evidence of the delivery and acceptance of the contract of guaranty, and other notice of its acceptance is unnecessary, un- less there had been a stipulation to that effect. Id. Where a guarantor warranted the faithful perform- ance 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 BEOKEES — CERTIFICATES. 23 of the abandonment of the contract and the substitu- tion of another. Id. BEOKERS. 82. Brokers.— CoTftmsszoTi. — When a real estate broker undertakes to furnish a purchaser, 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 contract on his part according to the terms proposed. If the principal accepts the , person presented, either upon the terms previously proposed or upon modified terms then agreed upon, and a valid contract is entered into between the prin- cipal and the person presented by the broker, the com- mission is earned. Coleman^ s Hx' r v. Meade & Co., 13 Bush, Ky. 358. CERTIFICATES. 83. Certificate of deposit given by a bank payable to ■order after fifteen days, and bearing interest in case the •deposit should remain three months and upwards, is a promissory note. Richer v. Yoyer, et al., 5 R. L. 213, S. C. R. 84. Certificate of deposit. — A certificate of deposit is •evidence of so high and satisfactory 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 bal- anced as to the amount deposited, the certificate will turn the scale. First Nat. Bank of Lacon v. Myers, 83 111. 507. 85. Certificate of deposit. — Interest on, after due. — 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 in- terest until paid. And where a bank brings up a plain case like this, the judgment will be affirmed with ten 34 OHAEGES ON" BOOK— CHATTEL MORTGAGES. per cent, damages. Cordell v. First Nat. Bank of Kansas City, 64 Mo. 600. 86. Gert\fLi:,a.U of incorporation defective. — In a suit against a religious corporation where the certificate of incorporation was defective and insufficient to show that the defendant was a corporation. Held, 1st. 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. 2d. That the- statute law of the State having expressly required cer- tain prescribed acts to be done to constitute a corpora- tion, the omission of those requisites cannot be supplied by the application of the doctrine of estoppel. Boyce V. Trtostees of the M. E. Church, 46 Md. 359. CHAKGES ON BOOK. 87. Chargres on book.— A person who has charged A., on his books for goods sold, may yet show that they were in fact sold on the credit of a corporation of which A. was agent, and that the corporation received the goods and gave the seller credit for them. Northford Rivet Co. V. Blackman Manuf. Co., 4A Conn. 183. CHATTEL MORTGAGES. 88. Chattel Mortgage.— Taylor mortgaged certain per- sonal property, including a growing crop, to secure ad- vances of goods, etc., to enable Taylor, a planter, to make and gather the crop. The mortgage debt not being paid, Paterson commenced suit to foreclose the- mortgage, whereupon the mortgagor interposed that the mortgaged property had been selected and set apart to him as ' '"bxempted from forced sale under any pro- cess of law." Held, that the term "forced sale" as used in the Constitution, is a sale against the will of the owner, and not a sale to which he had expressly consented by giving the mortgage ; that having thus for a valuable consideration, given his consent to the- alienation of the property, upon his breach of the con- CHATTEL MORTGAGES. 25 dition of the mortgage, he is estopped from revoking it; and the court, in ordering a sale, does but decree a specific performance of the agreement, which agree- ment was not forbidden by law. Pater son v. Taylor, 15 Florida, 336. 89. Chattel Mortgage. — A chattel mortgage permitting the mortgagor to remain in possession, and to sell, and apply the proceeds, or any part of them, to his own. use, is fraudulent and void in law as against creditors. While the holder of a chattel mortgage may relinquish his rights as such, and accept the chattels from the mortgagor in payment of his debt, or as a pledge, such a shifting of title must be open, express and explicit, both debtor and creditor being expressly parties to the payment or pledge, and their acts in that behalf estab- lished as expressly and satisfactory as payment or pledge in any other case. Blakeslee v. Rossman, 43 Wis. 116. 90. Chattel Mortgage.— A chattel mortgage given as continuing security to cover present and future indebt- edness, is valid not only between the parties, but, Avhen free from fraud, as to creditors. Brown v. Kiefer, 71 K. Y. 610. 91. Chattel Mortgage. — A mortgage maybe fraudulent as against creditors, although founded on a valuable consideration. Braley v. Byrnes, 20 Minn. 435. 92. Chattel Mortgage, made to secure debts maturing at a future day, which conveys a stock of goods in a particular store, and any other goods which may from time to time, during the exis::ence of the mortgage, be purchased by the grantors and put into said store to re- place any part of said stock which may have been dis- posed of, or to increase and enlarge the stock now on hand, is void^^er se. Phelps v. Murray, 2 Tenn. Eq. 746. 9.S. Chattel Mortgage.— A mortgage of personal prop- erty from A. to B., expressed to be "subject to prior mortgages" to a certain amount to C, the amount and terms of which are known to B., conveys only the right 26 CHATTEL MORTGAGES. to redeem the property from C.'s mortgage, and, al- though recorded first, does not take precedence of C.'s mortgage. Pecker v. Silshy, 123 Mass. 108. 94. Chattel Mortgage.— It is not necessary to the valid- ity of a mortgage of chattels that it should be in writ- ing. McKeithen v. Pratt, 53 Ala. 116. 95. Chattel Mortgage.— A. sold and delivered to B. cer- tain machinery for the manufacture of a patent machine, the license to manufacture which was to expire at a certain date, and took in payment a note, secured by a mortgage back upon the machinery and referring to an agreement of even date between the parties, by whiqh A. was to retain in payment of the note a part of the price of such machines as B. should make for him. When the license expired a balance was due upon the note which B. failed to pay on de- mand. Held, That A. was entitled to foreclose the mortgage for the payment of the debt secured thereby. Avery v. Bushnell, 123 Mass. 349. 96. Chattel Mortgage.— TFAe?^ valid. — In Rhode Island a mortgage of personal property to be subsequently ac- quired conveys no title to such property when ac- quired, which is valid at law against the mortgagor or his voluntary assignee, unless after acquisition possess- ion of such property is given to the mortgagee or taken by him under the mortgage. CooJc v. Corthell, 11 R. I. 482. 97. Chattel Mortgage.— ^«^Ze after delivery by and re- turn to mortgagor. — Although a mortgage of personal property to be subsequently acquired is in itself in- effectual to vest in the mortgagee a legal title to the property, yet if after acquisition by the mortgagor the mortgagee by delivery from, or by consent of the mortgagor, takes possession of the property under the mortgage conveyance, the title to the property both in law and equity vests in the mortgagee without further conveyance or bill of sale. Cook v. Corthell, 11 R. I. 482. 98. Chattel Mortgage.— Although the parties to a chat- CHATTEL MORTGAGES. 27 tel mortgage neglect to make and subscribe the affida- vit required by Gen. Stats., ch. 123, sec. 6, and althougli the mortgage is not recorded, it is nevertheless a valid mortgage as against an attaching creditor, provided possession of the mortgaged property be taken by the mortgagee. Olark v. Tarbell, 57 Hall, N". H. 328. 99. Where a mortgage is given to secure several notes held by different parties, a writ of entry to fore- close the mortgage must be in the names of all the owners of the notes. Noyes v. Barnet, 57 Hall, N. H. 605. 100. Chattel Mortgage.— The description in a chattel mortgage should be so explicit as to enable third per- sons, aided by the inquiries which the instrument itself sugggests, to identify the property covered thereby, and a mortgage mis-describing property will not affect the purchase of the same by a third party by imparting to him notice of the incumbrance. Ivins v. Hines, 45 Iowa, 73. 101. Chattel Mortgage.— Because a mortgagee of a chat- tel temporarily uses it with the assent of the mort- gagor, and then returns it to him, the mortgage lien upon it is not thereby extinguished. 102. To make applicable the rule that in the ab- sence of a specific appropriation of payments by either the debtor or creditor, the law will appropriate them, there must be some testimony tending to show that no such appropriation has been made by the parties. Al- bert, Sheriffs. Lindau, 46 Md. 334. 103. Chattel Mortgage does not protect from execution materials purchased by the execution debtor before it was given. Held, that this contract (chattel mortgage) of indemnity only amounted to a mortgage on the materials, and not being filed, did not protect mate- rials that had been sold to the principal before it was executed, from seizure on execution. Hurd v. Brown, 37 Mich. 484. 104. Chattel Mortgages.— A chattel mortgage, as be- tween the i^arties, is valid, without any acknowledg- 28 CHATTEL MORTGAGES. ment ; but without the acknowledgment it has no effect upon the rights of third parties acting in good faith, and notice of such a mortgage dods not prevent a credi- tor from subjecting the property to the payment of his debt. McDowell, et al. v. Stewart, 83 111. 538. 105. Chattel Mortgage.— The mortgagor of a chattel, with the verbal consent of the mortgagees, sold it to the defendant without notifying him of the existence of the mortgage ; but before delivery, and before pay- ment of the purchase-money, the mortgagees informed the defendant of the mortgage, and that they would hold him accountable to them for the price. Held, that the mortgagees could recover the price of the pur- chase in an action of assumpsit in their own names. Bank v. Raymond, 57 Hall, N. H. 144 ; Huntington V. Knox, 7 Cush. 373. 106. Chattel Mortgage. — When a mortgagee of chat- tels upon a public sale malces reasonable and fair efforts to sell the property for a good price, and through the acts, statements and notice of the mort- gagor at the time of sale, the effect of which is to dis- courage bidding, and the same does not bring a full price, a court of equity will not set aside the sale on the ai)plication of the mortgagor. The effect of a pub- lic sale, upon due notice, under a chattel mortgage is to cut off the equity of redemption of a mortgagor. A mortgagee, under a chattel mortgage, may himself be- come a purchaser on a public sale of chattels. In order to redeem under a chattel mortgage the mort- gagor must in good faith pay or tender the whole mortgage debt, and that before suit brought. Where the plaintiff upon a trial is not found to have just ground for equitable relief, the action cannot be held to adjust rights and claims between co-defend- ants, not related to the cause of action set up in the complaint. Hall v. Ditson, 55 Howard, N. Y. 19. 107. Chattel Mortgage.— Usury.— Sale under the mort- gage. — Purchase by mortgagee. — Effect of sale. — Ac- tion to redeem. — Claims of co-defendants. — Upon the CHECKS. 30 loan of money to be secured by a chattel mortgage on copyrights, music plates, &c., &c., a printing contract between the parties being made at the same time, by which it was agreed that the mortgagees might print music from the plates of the mortgagor, the expense of printing and materials to be borne by the mortgagees, the profits from the music so printed to be divided equally between the parties, it appearing that the loan of the money and the printing contract were part and parcel of one general arrangement in the beginning, but were in fact made afterwards divisible, and after the mortgage was executed, and before the printing contract was made, the option was given to the mort- gagors to give up the printin^g agreement, but they de- sired it to be made. Held, that the transaction was not usurious. Qlark v. Sheehan, 47 Howard, N. Y. 188 ; also 55 Howard, N. Y. Practice Reports, 19. 108. Chattel Mortgage. — A chattel mortgage upon after- acquired goods will hold against a iona fide purchaser with notice. He can have no better title than his vendor. Hoison, et al. v. Mich. Central M. H. Co., 37 Mich. CHECKS. 109. Check. — Garnishee Order. — A garnishee order vras made under Order XLV., Rule 2, attaching a debt. At the time the order was made the garnishees had given the judgment debtor a'check for the amount of the debt. Upon service of the order on the garnish- ees they stopped payment of the check at the bank, the check not having been presented. Held, that upon the check being stopped it was as if it had never been given, and that there was therefore an existing debt capable of being attached, and the garnishee order was effectual. Cohen v. Hale, 3 App. Cas. (41 Victoria Law Report, Eng.) 371. 110. Check of firm to pay individual partner' s debt. — If a partner consents that a check of the firm be ap- plied on an individual debt of his copartner, he may, 30 CHECKS. at any time before such application is in fact made, or the rights of third parties intervene, withdraw such consent, and after notice by him, not to so apply the check, it cannot be so applied. National BanJc of Jaoksonmlle v. Mapes, et al., 85 111. 67. 111. Check contained this recital : "To hold as col- lateral for 1,000 P. T. oil, pipage paid," &c., and across its face the cashier of the bank certified "Good when properly endorsed." Held, tfiat this check was not drawn in the usual course of banking business and the certificate of the cashier would not bind the bank. Borsey v. Abrams, 85 Penn. 299. 112. Check. — The drawer of a check delivered it to the payee, intending thereby to give to the payee the fund on which the check was drawn. Held, that until the check was either paid or accepted, the gift was in- complete, and that in the absence of such payment or acceptance, the death of the drawer operated, as against the payee, as a revocation of the check. Simmons v. Savings Society, 31 Ohio, 457. 113. Check— Payment.— The giving of a check by the debtor with the intention of appropriating it to the debt of the plaintiffs, and the giving of a receipt there- for by the plaintiffs' agent, acting within the scope of his authority, constitute by the law of Canada an ap- propriation as intended. Such appropriation could only be changed by a rescission of the appropriation made by consent of all parties interested. In an action against the agent for moneys had and received on ac- count of the plaintiffs, such rescission, being put on the footing of a contract by the Canadian law, must be specially pleaded as a defence. Kershaw v. KirTcpat- ricJc, 41-42 Eng. Law Reports, 3 App. Cases, 345. 114. Cheok..— Handed a BanTc by a Depositor. — When checks on another bank are handed by a depos- itor to the receiving teller of a bank, and are by the teller credited on the depositor's pass-book, they are only received for collection, and if not paid on presen- CHECKS. 31 tation, may be returned and the credit in the pass- book canceled. National Gold Bank v. McDonald, 51 Cal. 64. Boyd v. Emerson, 2 Adolphus & Ellis, 184. 115. Check.— A check is an appropriation of so much of the maker's funds in the bank upon which it is drawn as is necessary to meet it ; hence the maker cannot object to any delay in presenting it, unless he can show special injury to himself arising therefrom. If the maker has withdrawn from the bank his entire deposit against which the check is drawn he is not in- jured by any delay in presenting it, or any lack of formal notice of its non-payment, before action brought. Emory v. Hobson, 63 Me. 33. 116. Check.— The rightful possession of a check made payable to the order of a particular person, confers no authority on the drawee to pay the same to the person having such possession, without the genuine endorse- ment of the payee. If the drawee relies upon false rep- resentations as to identity, for which neither the drawer nor payee are responsible, he to identity, for which neither the drawer nor payee are responsible, he makes payment to a wrong person, at' his peril. Dodge v. Nat. Ex. B'Tc, 30 Ohio, 1. 117. Checks.— A bank which pays out money on a check, pur j)or ting to be signed by a depositor, but the signature on which is in fact forged by his clerk, is not, in the absence of evidence that the clerk has, or was supposed by the bank to have, any authority to sign the depositor's name, exempt from liability to the depositor, by proof that the forgery was committed on a blank form taken from the depos- itor's check-book, which was left lying about in his office during the day ; that it was stamped with a hand stamp, sometimes used on his checks, and which was accessible to any one in the office ; that the clerk was allowed to fill up checks, and was introduced by the depositor to the officers of the bank as the person who 32 CHECKS. was authorized to receive money on the depositor's checks. Mackintosh v. Bliot National Bank, 123 Mass. 393. 118. Checks.— Where upon the face of a check it is ap- parent that it was not drawn in the usual course of busi- ness, that it was not a commercial check, a cashier has no authority to certify such a check, and such certiii- cate is not binding upon the bapk, nor can it be made so by any subsequent acts of ratiiication by said cashier. Dorsey v. Abrams, 85 Penn. 299. 119. Check.— If a customer of a bank hands the re- ceiving teller a check drawn by another person upon the same bank, and at the same time hands him his pass- book, and the teller receives the check and enters a ■credit for the amount in the pass-book, but no entry is made on the books of the bank, and nothing else is said or done, and the drawer has no funds in the bank, the check may be returned to the depositor and the credit in the pass-book canceled. In such a case, a finding by the court that the check was received as a cash de- posit is erroneous. National Gold Bank v. McDonald, 51 Cal. 64. 120. Check.— The payee of a check before it is accep- ted by the drawee cannot maintain an action upon it against the latter, as there is no privity of contract be- tween them. So held, where a check of the Treasurer of the United States upon a national bank duly desig- nated as a depository of the public money, having been paid upon an unauthorized endorsement of the name of the payee, suit to recover the amount of the check was brought by its owner against the bank. First National Bank of Washington v. Whitman, 94 TJ. S. 343. 121. The rights of the parties are not changed by the fact, on a settlement of accounts between the treas- urer and the bank, the check, on the supposition that it had been properly paid, was credited to the bank. Such an error does not efEect the real state of the ac- counts ; when it is discovered, they are open to correc- tion. Id. CHECKS. 33 122. Payment to a stringer upon an unauthorized indorsement does not operate as an acceptance of the «heck, so as to authorize an action by the real owner to recover its amount as upon an accepted check. Id. 123. Check. — A check was drawn to Cook ; Barnes ■endorsed Cook's name without his authority and re- ceived the money ; the bank deducted the check from the drawer's account and settled with him on that basis. — Held, that Cook could recover the amount of the check from the bank. The conduct of the bank was an acceptance and bound it as a certified check would. ■Seventli National Bank v. GooTc, 73 Penn. 483. 124. Check.— C%»^. — The protest of a dishonored check is not a written instrument which can be made the basis of an action, and in an action by the payee, against the drawer, of such check, a copy of the pro- test forms no part of the complaint, and cannot aid its averments. 125. If, in such action, the complaint fails to aver that the defendant has been notified of the non-pay- ment of such instrument, or alleges no excuse for the failure to give such notice, it is sufficient on demurrer. 'Griffin v. Kemp, 46 Ind. 172 ; also Pollard, Adm^r v. Bowen, 57 Ind. 232. 126. Check.— Diligence. — Presentment for payment. — The same rule applies to checks as does to bills of •exchange and endorsed promissory i^otes, in regard to the deligence to be used in presenting them for pay- ment. See Edwards on Bills and Promissory Notes, pages 57, 389, 890 and 391 ; also decision in 57 Ind. 232, 127. Check.— A check given to carry out an agree- ment made in contravention of the provision of the Bankrupt Act (sec. 45), prohibiting officers of courts in bankruptcy from taking anything other than the fees allowed by the act for acts done under it, is not absolutely void ; notwithstanding the illegality of the consideration, it is valid in the hands of a bona fide holder for value, taking it, before it is dishonored, 3 34 CHECKS. without notice of its illegality. The burden of show- ing that the transferee had notice of the infirmity in the paper is upon the party seeking to impeach his title. Cowing v. Altman, 71 N. Y. 435. 128. Checks.— Where a bank directs checks drawn, upon it to be presented for payment to another bank, if a check be there presented and payment refused, the drawer is discharged, if notice of non-payment be not given, though the check be presented to the drawees- on the following day, but they had failed in the in- terim. East Ri-oer Bank v. Oedney, 4 E. D. Sm. 582. 129. Check.— Enjoined. — If the bank on which a check is drawn, be enjoined from making any payments by an injunction out of chancery, half an hour after being opened for business, on the day following that on which it was given, the holder is excused from pre- sentment, and may recover on the original considera- tion. Lovett V. Cornwall, 6 Wend. 369 ; S. C, 1 Hall, 56. 130. Check. — A check drawn in the ordinary form, not describing any particular fund, or using any words of transfer of the whole or any part of any amount standing to the credit of the drawer, does not operate as an assignment, equitable or otherwise, of funds of the drawer, in the hands of the drawee ; and it is im- material that the drawee is not a bank. In re Merrill, 71 N. Y. 325. 131. Checks. — The holder of a check, on whom it has been fraudently passed, in payment of a pre-exist- ing debt, is not bound to present it, before bringing suit on his original cause of action. Devoe v. Moffatt, Anth. N. P. 221. 132. Check.— Payment.- — A check, it is true, is a pay- ment until preseated 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. Malialen v. The Dublin & Chapelizod Distillery Co., 2 Irish Reports, Common Law Series, 83. CHECKS. 35 133. Check.— 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 suf- ficient excuse for a delay until the time specified in presenting 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. Pol- lard, Adm. V. Bowen, 57 Ind. 232. 134. Gh^fik.— Protest. — No protest for non-payment of a check drawn upon a bank is necessary to render the drawee liable to the payee. Pollard v. Bowen, 57 Ind. 232. 135. Check.— The date of a check \s prima facie evi- dence 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. 136. Check, however, has no inception until deliv- ery, 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 defense. A party nego- tiating 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 no- tice of illegality or other defence, and it appears that it was in fact delivered on the day it was negotiated, he stands in no worse position than if he had first in- quired 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 trans- ferred by the latter to a iona fide purchaser for value without notice of any defence, it is valid in his hand. 36 CHECKS. notwithstanding a defect or illegality in the considera- tion which would be a good defense as between the drawer and payee. Id. 137. Accordingly, held., where, in pursuance of an arrangement between an assignee in bankruptcy and creditors, a check for additional 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 de- pository for fourteen months, and was then delivered upon the order of the payee, on the day the latter was discharged as assignee, to a hona 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 transferee, could, upon its being presented for payment and dis- dishonored, enforce it against the drawer. Cowing v. AUman, 71 N. Y. 435. 138. Check.— 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. 139. Accordingly, held, where an. insurance company gave its 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 liquid- ated, 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 checlt — in- COLLATERAL — COLLECTIONS. 37 tended for the signature of the payee — did not affect its negotiability of the particular fund. In re Merrill, 71 ]Sr. Y. 325. COLLATERAL. 140. Collateral Security.— A creditor who holds rail- road 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 execution, and arresting the body of the debtor thereon. Smith v. Sir out, 63 Me. 205. COLLECTIONS. 141. Collections.— 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. 142. Collection Agents.— Liability for moneys collected by sub-agents. Collection agents, to whom notes are intrusted for collection, are liable for moneys received by attorneys employed by them, and which are not paid over, although the receipt given for claims when deposited for collection states : " avails are to be prompt- ly paid over on receipt bjr us." Held, that the defend- ants' true relation and liaj^ility are not at all affected by this language. The money was received by them in law when collected by the sub-agent. The receipt was intended as an assurance of prompt payment over and nothing more. Mondel, et at. v. Mower, et al. , 65 How- ard, N. Y. 242. 143. Collections.— 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 acquit- 38 COLLECTIONS. tance of the claim by receiving payment thereof in a debt, he, the attorney, owes the debtor. He has no right to accept notes, bonds, etc., of the debtor, as collateral security for the debt, without ex- press authority from his 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 payment on the claim when collected, in that transaction he is the attorney 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 al., 10 West Virginia, 206. 144. Collecting Agent.— A firm in Michigan left for collection with the plaintiifs, 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 Con- necticut. 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 replied that he would look up his account with the drawers and inform the cashier with regard to pay- ment. 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, paid the drawers the $500. J. C, the drawee, was also president of the defendant bank, and this fact was known to the plaintiff's. 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-jjayment. If they had returned it at once it would have prevented the CONFEDERATE CURRENCY. 39 payment of the $500 to the drawers. Several days later the cashier returned the draft tinpaid, which was Ms first information to the plaintiffs with regard to the matter. The plaintiffs thereupon demanded repay- ment 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. Held, 1. That the defendants, as agents of the plain- tiffs for the collection of the draft, had been guilty of negligence in not obtaining payment of the draft or jeturning it at once to the plaintiffs. 2. That, al- though the plaintiffs paid the money to the drawers upon the statement of the drawee to the drawers tliat 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 dam- ages resulting from their neglect. 3. That these dam- ages 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 and Manufacturers' Bank v. Stafford Bank, 44 Conn. 564. 145. Compromise.— CrzmmaZ Action. — 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 lar- •ceny, 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. CONFEDERATE CURRElSrCY. 146. Confederate Currency.— A co-surety, who dis- charged 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 payment, with interest, was the amount which such 40 CONFLICT OP LAWS. payment would entitle plaintiff to recover ; not the amount of the judgment discharged. Edmonds v. SheaJian, 47 Texas, 443. 147. Confederate Money.— 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. 148. Confederate Currency.— G^oZ«Z. — A sale of property^ for cash, was made in Monroe County, with reference to- Confederate States Treasury notes as a standard of value, on December 26, 1862. The balance of the pur- chase 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 Con- federate 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 appa- rent appreciation in value, when sold for Confederate- currency, of all kinds of i^roperty, 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. BierneY. Brown's- AdrnW, 10 West Virginia, 748. 149. ConfederateNotes.— A decree, or a judgment, when rendered upon a contract payable in Confederate Treas- ury 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. Bis- sell V. Heyward, 96 U. 8. 580. CONFLICT OF LAWS. 150. Conflict of Laws. — Of tlie Right and the Remed]/^ — The lex loci governs in determining the validity, and in the construction of contracts, but in respect to the COMMUNITY OP PROPERTY. 41 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. Oo. v. Barron, 83 111. 365. 151. Conflict of Laws. — The law of this State prohibit- ing an individual from doing business under a JirTn- name, does not affect a person residing in another State. Succession of BofenscTien, 29 La. 711. COMITY. 152. Comity. — In the interpretation of commercial contracts, this court will be largely influenced, and guided, by the law merchant oi the United States, and the constructions of that law made by the Supreme Court of the United States. Ghaffraix & Agar v. Price, Sine and Tupper, 29 La. 176. COMMON CARRIEES. 153. Common CAvviers.— Agent. — Bill of Lading .—Ev- idence.— Damages. — A carrier of freight who expressly contracts to deliver goods at a destination beyond the terminus of his own road is answerable for the negli- gence of any connecting road in the line of transporta- tion. Newall, etal. v. Smith, et al., 49 Howell, Vt., 255. COMMUNITY OF PROPERTY. 154. CommunityProperty.— Property purchased during marriage, whether in the name of the husband or the wife, becomes community property. Succession of Carmelite Plancliet, 29 La. 520. 155. Community— Dissolution.— After the dissolution of the community, the husband, as its former head, has 42 COMPOSITION — CONSIDERATION. 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. /. W. Fuller, 29 La. 663. COMPOSITION. 156. Composition agreement obtained iy fraud. — "Where a party induced a creditor to sign a composi- tion agreement, whereby he accepted one-half o£ 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 induce another creditor to sign the same agreement, which note, upon suit 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. Blaine, 83 111. 25. CONSIDERATION. 157. Consideration. —Adequacy. — The waiver of a legal or equitable right is a sufficient consideration to sup- port a jjromise. Where there is any consideration, the law will not inquire into its adequacy. Buckner v. Mcllroy, 31 Ark. 631. 158. Consideration.— Debt barred by statute sufficient ■consideration for new promise. Gamraell v. Parra- more, 58 Ga. 54. 159. Consideration.— An agreement to forbear proceed- ings is a valid consideration for a promise, though the claim be doubtful. Matthews v. Morris, 31 Ark. 222. leo. (ioniiAera.i\(m.— Failure of. — Where a promis- sory 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 recoveiy can be had on the note where the maker has been un- able to realize anything on the draft. And the fact that the assignee of such draft becomes indebted to the CONTRACT. 43 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. 161. Consideration.— 719 impeach. — Although the con- sideration for a promise or undertaking may be ex- pressed in a separate writing of the parties, still, parol evidence may be received to show that the real consid- eration was different, where the defense goes to the consideration. Where an action is brought upon a written contract, resort may be had to parol evidence for the purpose of impeaching the consideration of the agreement. Wolf v. Fletemeyer, 83 111. 418. CONTRACT. 162. Contract o* 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 indorsers, and thereby to prevent a prosecution for the forgery, is illegal and void, and leaves the property subject to at- tachment by the vendor's creditors. LaingY. McCall, m Vt. 657. 163. Contract.— 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 con- sumption of the ice. Held, that B. could not maintain an action for the price of the ice against A. Boston lee Co. V. Potter, 123 Mass. 28. 164. Contract.— Zzcew^e.— A contract simply giving a right to take ore from a mine, no interest or estate being granted, merely confers a license. Silsby v. Trotter, 29 IST. J. 228 165. Contract.— Courts cannot protect the rash against the consequences of imprudent contracts, if they enter into them voluntarily, and not through 44 CONTRACT. 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. 0' Conner v. Rempt, 29 N. J. 156. 166. C(i-aiv2Lct.— Condition precedent. — B. executed his promissory note to H. & D., payable January 1.5, 1876, in the usual form, with the addition of the fol- lowing words : The above note is given upon, and for the sole consideration that the said Hawiey & 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 under- signed, Bingham, the planing machine which they have this day entrusted to him. Held, that the prom- ise of B. was not dependent upon the promise of H. & ~D. to sell and transfer the machine as a condition pre- cedent ; but that it was an independent promise to pay. Hawiey v. Bingham, 6 Oregon, 76. 167. Contracts.— It seems that the rule in this State, that a common carrier may, by express stipulation, exempt himself from liability for negligence, 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 Wal. 357). Maynard v. 8. B. & N. r. R. R., 71 N. Y. 180. 168. Contract, Execution of. — If a written agreement which is intended to be sighed by several persons or parties thereto is not signed by all, it is not completely executed and does not bind any of the parties. Bar- ber V. Burrows, 51 Cal. 404. 169. Contract of Guaranty.— Meaning of the words, " Value received.^'' — In a guaranty written on the back of a promissory note the words value received impart a consideration which is prima facie suflBcient to sup- port the contract. Semble, that a guaranty is an orig- inal undertaking upon which the guarantor is liable in the absence of proof that the maker of the note is in- CONTRACT. 45 solvent or that diligence was used to collect from Mm. Martin v. The Hazard Powder Co., 2 Colorado, 596. 170. Contract.— -Ma^/ ^^ rescinded. — When one party to a contract violates it, he cannot avail himself of its provisions against the other party, and such other party has a right to consider the contract rescinded. SoJieland v. Erpelding, 6 Oregon, 258. 171. CotLivsLdt.— Security.— 'Where E. delivered a note of H. to his son, with instructions 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 E. as a security for the price of the horse, and the property of the note remained in E. Uarp v. Richardson, 78 N. C. 277. 172. CorArsLni.— Subsequent. — Degree of proof to es- tablish. A subsequent contract will not operate to ex- tinguish 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. Watson v. Janion, 6 Oregon, 137. 173. Contract. — ^t public sale. — A purchaser at an execution sale cannot in equity be excused from con- summating his purchase because never having at- tended 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, title, and interest" of the judgment debtor in it. TJpham v. Hamill, 11 R. I. 565. 174. Contract for the purchase of grain. — Where a commission merchant contracts for the purchase of grain for another, to be delivered at a future time, the principal making an advance on the purchase, which is in the merchants' name, and agrees to keep the mar- 46 CONTRACT. gin good up to the time of delivery, the relation of pledger and pledgee will not be created, so as to re- quire a notice of the time and place of a sale on failure to keep up the margins. Cobett v. Underwood, 83 111. 324. 175. Contracts.— Memorandum of contract as follows : "I hereby agree to sell J. K. the house and lot situated on L. Street, second lot east oi. C. Street, on north side of L. Street, for the sum of ($7,000) seven thousand dollars, and agree to give a satisfactory deed on or be- fore the first day of September next, and hereby ac- knowledge 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 H. I. 498. llQ. QoutrsLcis for future delixiery. — 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 security, and provides that, if either party fails, on no- tice, to put up further margins according to the market price, the other may treat the contract as filled imme- diately, and recover the difference between the contract and market price, without offering to perform on his part, or showing an ability to perform, is illegal and void, as having a pernicious tendency. Lyon & Go. V. Culbertson, Blair & Co., 83 111. 33. 177. Contracts made on ^Change. — 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 contract on ' Change or elsewhere, bind themselves beyond and independent of these rules. Where the sale is made at its rooms, in the absence of proof to the contrary, it will be pre- sumed to have been made with reference to these rules. Thorne, et al. v. Prentiss, 83 111. 99. 178. Contract.— S. residing in Indiana, received from CONTKACT. 47 W., a commission merchant of Cincinnati, |6,000, ad- vanced on account of porli, to be thereafter cut and shipjjed by S., for sale on commission. In pursuance of the contract, S. shipped by rail a car-load of the pork, consigned 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 con- signee. Held^ under these circumstances the delivery of the pork bj^ S. to the carrier was equivalent to a delivery to the consignee, and that after such delivery S. retained no such interest in the pork as could sub- ject to attachment at the suit of a creditor. Strauss V. Wessel, 30 Ohio, 211. 179. Contract.— 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 pay or allow the balance thus found due, such promise will be enforced. A written agreement may be waived, varied or annulled, by a sub- sequent oral agreement of the parties. 180. In Goss V. Lord Nugent, 5 Barn, and Ad. 65, Eng. , Lord Denman states the law on this subject thns : " After the agreement has 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 altogether 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 con- tract, which is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will thus be left of the written agreement." Approved in Wiggins. Godwin, 63 Me. 389. 181. Contracts.— The agreement by which a creditor, who has bought his debtor's property, stipulates to re- convey it to the debtor on condition that the latter pays 48 CONTRACT. 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. Ranson, 29 La. 161. 182. Couivsmti.— Sunday. — 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 promissory 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 Sunday carry with it no implied authority to the person to whom it is entrusted, to deliver the same to the payee. Such signing and delivery on Sunday render the instrument void, though then entrusted to another with instruc-, tions to deliver it to the payee on a business day. Davis V. Barger, 57 Ind. 54. 183 1. Contract.— Twelve persons entered into the fol- lowing obligation under seal : Whereas, P. S. is em- ployed by the Baltimore County Brewing, Malting and Distilling Company, as the manager of said company ; and whereas, the said P. S. is employed and author- ized to purchase the malt and hops for said brewery ; and whereas, each of the directors of said company have agreed to become individually 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, during the space of one year from the date hereof. Now, therefore, these presents wit- ness, that in consideration that said P. S. will under- take 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 heirs, 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 CONTRACT. . 49. 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 pay such hops and malt bills, in total not exceeding the sum of thirty thousand dol- lars, or twenty-five hundred dollars each, 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, 1st. 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. 2nd. That the said instrument construed all together and in all its parts, was a contract by which each of the obligors had bound himself severally for $2,500 otily. Boyd, et al. V. Kienzle, et al., 46 Md. 294. 185. GovXTAVii,.— Equity can no more enforce a void •contract than can a court at law. Meed v. Meeves, AdnCr., 13 Bush, Ky. 447. 186. Contract.— To establish a contract by acceptance •of a proposition, it must appear that the one making it was- notified of the acceptance. Ooss's -Appeal, 73 Penu. 39. 187. Contract between creditor and principal, or creditpr and surety, without the concurrence of co- sureties, whereby the latter are subjected to an in- creased risk, operates as a discharge of such sureties. The release of one or more sureties without the assent of the co-sureties 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 increased risk or , liability. Smith, et al. v. State, use of County GoTnmiss'rs of Baltimore Co., 46 Md. €17. 188. Contracts.— FerSaZ.— Although the parties may be longer than a year in the performance of a contract, still, if that performance maybe completed within a year, and such performance is entirely in accordance 4 5() CONVEYANCES. 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, 30 Ohio, 350. 189. Coutrsuit.— Fraud. — Consideration Performed. — Rescission. — Restitutio in integrum. — On a treaty of marriage, a promissory note was given in consideration 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, — Reld (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 de- fendants to avoid the note upon the ground of fraud practised during the marriage treaty. 190. That when a party exercises his option to re- scind for fraud, he must be in a state to rescind — that is, he must be in such a situation as to be able to put the parties into their original state before the contract. Sogan v. Daniel and Thos. Healy, Irish Reports, Common Law Series, vol. 11, p. 119. 191. Con-tracis.— Forfeiture. — 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. CONVEYANCES. 192. ConTeyances.— A deed recorded after fifteen days is notice to purchasers, mortgagees and judgment creditors subsequent to such record. Sanborn v. Adair, 29 N. J. 338. CONVETAKCES. 51 A deed not recorded in fifteen days is void as to a subsequent deed for a valuable consideration, without notice, and cannot regain its priority by being placed on record before such subsequent deed is recorded. Id. 19S. Such subsequent deed cannot lose its priority over the earlier deed by not being put on record, but is, in its turn, if not recorded in fifteen days, subject to be postponed to a later deed, taken without notice for a valuable consideration. Id. 194. ConTeyance.— If a grantee in a deed be ^honaflde purchaser for a valuable consideration, his or her title is unassailable, whatever may 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, etal. v. WicTcham & Wife, et al., 29 Grattan, Ya. 628. 195. ConTeyance.— A voluntary conveyance is void as against creditors holding debts previously contracted. Mussel, et al. v. Thatcher, et al., 1 Del. 320. A voluntary conveyance, though without a fraudu- lent intent, is void, as against creditors, under the statute of 13 Elizabeth. Logan, et al. v. Brick, et al. 2 Del. 206. 196. ConTcyances.— Withholding a deed from the rec- ords for several years may, as an element in the proof fraud, be explained so as to rebut any presumption of fraud arising from it. Thouron v. Pearson, 29 N . J. 487. 197. Conveyance made hy a man before his marriage in fraud of the dower rights of his intended wife. — Evidence of fraud.— Trustee. — Cestui que trust. — A voluntary conveyance of real estate made by a hus- band, just before his marriage, to his mother, without any valuable consideration, and kept a secret until years after the marriage, is fraudulent and void as against the wife's claim of dower. Although a trustee may become a purchaser from a cestui que trust upon fair principles and proper coa- 52 CONVEY AWCES. sideration, yet where the transaction has no pecuniary consideration to uphold it, it is liable to the closest scrutiny due from courts in such transactions. To afford complete protection to the trustee who deals with a cestui que trust, such statement and infor- mation should be given by the trustee to the cestui que trust as to the extent and value of his interest 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 respect to the trust property. Former oy v. Pomeroy, 54 Howard, N". Y. 198. Conveyance.— Voluntary — ^is void if it tends to hinder and, delay creditors, although, it may not other- wise injure them. A conveyance being held fraudu- lent and void as against creditors, certain mortgages of the property conveyed, taken by the vendor by way of consideration, were nevertheless held good in the hands of an assignee for value without notice. Logan, et al. V. BricTt, et al., 2 Del. 206. 199. Conreyances.— He who buys any part of the avails of a scheme to defraud creditors, in order to keep what h& gets, must not only pay for it, but he must be innocent of any purpose to further the fraud. DeWitt V. Van SicJcU, 29 IST. J. 209. 200. Conveyancesv^Property conveyed in fraud of creditors will be reclaimed for the benefit of creditors, no matter who may happen to hold it, if reclamation can be effected vnthout injustice to innocent third per- sons. De Witt V. Van SicJcle, 29 JS", J. 209. 201. ConYeja.nces.— -Fraudulent. — If the grantee of property conveyed in fraud of creditors diiSpose of it before proceedings are instituted to reach it, he will be held answerable for its value. Fost v. Stiger, 29 N. J. 554. 202. ConTeyances'by a solvent father to his two sons, in consideration of services rendered by tliem for many years^ made openly^ the deeds being recorded soon -afterwards, and. the sons remaining in continnoi,)s ^ CORPORATIONS. 53 possession thereafter, are good against creditors of the father. Horton v. Castner, 29 N". J. 536. CORP.ORATIONS. • 203. Corporations.— 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 addi- tional 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. Morvillev. American Tract Society, 123 Mass. 129. 204. Corporations.— Oncers. ^ — 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 author- ity, as such, to undertake, in the corporate name, for the repayment of such an unauthorized loan. Union Oold Mining Go. v. Rocky Mt. Nat. Bank., 2 Colorado, 565. 205. 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 other- wise at liberty to indulge. M. 206. Corporation.— Oncers. — Statute of Frauds. — 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 writ- ing. Searight v. Payne, 2 Tenn. Eq. 175. 207. Corporation.— (7er^!^^ca^!e of Stock. — If a certifi- cate of shares in the capital stock of a corporation is taken without the owner's knowledge, and, together with iorged power of attorney, is delivered to an auc- tioneer for sale, to whom the corporation issues a new 54 CORPORATIONS. 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 cer- tificate, the owner is entitled, 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. 208. Corporations.— Oncer's Liability. — An officer and stockholder of a corporation who states to a cred- itor 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. Sea- rigM v. Payne, 2 Tenn. Eq. 175. 209. Corporation Bonds, payable to bearer or order, and the coupons 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. 210. Where an instrument is incomplete, as if any essential part is in blank, and is afterwards filled up by the thief, or holder through the thief, no recovery can be had. The place of payment was left in blank, and before it was filled up by the president, the bonds were stolen. Held, that a bona fide holder could not, by inserting the name of a place in the blank, recover. Maas V. Missouri R. R. Co., 11 Hun, N. Y. 8, also JacJcsonY. Yicksburg Co., 2 Woods, 141. The thief's insertion of the name of a payee in the blank left for that purpose is not such an alteration as will avoid the COKPORATIONS. 55 bond. For the fact of the bond not being payable to a particular person does not render it non-negotiable. Same rule applies to a coupon. Dutchess Co. Ins. Co. -y. Hachfleld, 1 Hun, N. Y. 675 ; Smith v. County, 54 Mo. 58 ; Boyd v. Kennedy, 9 Vt. 1846. 211. The status of a corporation doing business in a State other than that in which it was incorporated was olearly defined by the Supreme Court of the United States in the case of the BanTc of Augusta v. Earle, 13 Peters, 538. Held, "That it exists only in contem- plation of law and by force of the law, and when that law ceases to operate, and is no longer obligatory, the ■corporation can have no existence. It must dwell in the place of its creator, and cannot emigrate to another •■sovereignty." 212. Corporation.— .Ac^zoTi against trustees for in- juries caused by fradulent acts or misapplication of corporate funds. — Corporation, necessary party. — An action for injuries caused by the fraudulent acts, or for misapplication or waste of corporate funds, by an officer of a corporation, must be brought in the name of the corporation, unless such corporation or its officers refuse to bring such action. In that con- tingency, and then only, can a stockholder bring an action for the benefit of himself and others similarly situated, and in such case the corporation must be a party defendant. Greaves v. Oouge, 64 Howard, :sr. Y. 272. 213. CoTT^orsAions,.— Pre-emptions under contract. — The charter of a corporation provides that no ' ' stock- holder in said corporation shall have the right to trans- fer his shares therein, without first giving ten days' notice in writing of such intention, and ten days' re- fusal thereof to said corporation, at the lowest price at which he will sell to any other person, and if in such case said corporation elect to purchase said shares at said lowest price, such stockholder shall, on the price being offered to him, convey said shares to said corporation." A stockholder ofl.ered to 56 COEPOBATIONS. the corporation a certain number of shares at a gross price, and subsequently sold to a third party a smaller number of shares at a given price per share. Held, that the offer to the corporation did not comply witk provisions of the charter, and that the corporation, could not be compelled to allow the transfer of the- stock sold upon its books. Sweetland v. QuidnicJc Co.^ 11 E. I. 328. 214. Corporation.— 'SM^■^. — In case a corporation on re- quest refuses or neglects to bring suit against a default- ing oflBcer, such suit may be brought by a stockholder for himself and his co-stockholders, making the cor- poration a party respondent. Hazard v. Durant, 11 R. I. 195. A corporation cannot gratuitously condone or re- lease the fraud of a defaulting officer, unless by a unnanimous vote of its stockholders. Trenton Mutual Life Insurance Co. v. Johnston, 24 N. J. ; also, 98 Mass. 381 ; approved, Olark v. Allen, 11 E,. I. 205. 215. Corporations.— >S'focZ; Subscriptions. — Where the charter does not require the payment of a certain, amount at the time of subscribing for stock, but th& agreement of subscription does, the failure to make- such payment does not vitiate the subscription. Water Valley Manufacturing Qo. v. Seaman, 53 Miss. 655. 216. Gori^oraMons.— President of Bank. — Autliority to contract. — The president of a bank may contract, on. sufficient consideration, with the defendant in a judg- ment in favor of the bank, to enter a remittitur of the- judgment. Case v. Hawkins, 53 Miss. 702. 217. Corporations. — A bank which issues bills for cir- culation as money is a public corporation ; but a bank, which beyond a power to contract in its corporate- name, has no power beyond those which every other person possesses, must be deemed a private corpora- tion. Attorney-General v. Simonton, 78 N. C. 57. 218. Coupons.— ?%e Title to Interest. — Coupons pass from hand to hand by mere delivery. A transfer of possession is presumptively a transfer of title, but does DAMAGES — DEBTOR AND CREDITOR. 57 not impart a guaranty of payment. Ketchum v. Dun- can, 96 U. S. 659. DAMAGES. 219. Damage.— In a suit upon the first of several promissory notes given for the price of a chattel sold by plaintiff to defendant, where it doss not appear that the notes were received as payment, nor in whose hands the remaining notes are, defendant cannot re- cover any excess of his damages, from breach of war- ranty of the chattel, over the amount due on the note in suit. Renter, et al. v. >S'^. Louis, et al., 43 Wis. 693. 220. Tia.msx^^s.— Measure of, under Count for Goods Sold. — If a plaintiff surrenders a note given for the price of goods sold, and proceeds under the common counts, he can only recover their real value upon the defendants showing a warranty, its breach, and the difference in the goods as warranted and as they really were. Wilson, et al. v. King, 83 111. 232. 221. Damages.— The rale of damages for negligence or delay in the transportation of goods by common car- riers, is the difference between the market value of the goods at the time they should have arrived at the place of delivery and the time they did arrive there, with interest thereon, as damages, from that time. Newelly et al. V. Smith, et al., 49 Rowell, 255. DEBTOR AND CREDITOR. 222. Debtor and Creditor.— B. gave a mortgage to secure a note of $5,200. He afterwards gave to the mort- gagees another note for $5,500, with the privilege of two renewals upon making part payments at each renewal. B. did not request any renewal of the note. After its maturity he paid $1,500 without any direc- tion as to its appropriation, and the mortgagees applied it to the note of $5,200. Held, on foreclosure of the mortgage, that as against a purchaser of the mortgaged 68 DEBTOR AND CREDITOR. premises under a judgment against B,, he could not question such appropriation, Paterson Sav. Inst. v. Brush, 29 N. J. 119. 223. Debts, Priority of— A debt claimed by a wife against her husband, and first put in writing when his debts begin to jeopardize his future, must always be regarded with suspicion, and when attempted to be enforced against his creditors, must be rejected unless proved very clearly. Post v. Stiger, 29 N. J. 554. 224. Debtor and Creiitor.Selease. — Concealment. — Where the defendant's creditors signed a paper in the words: "We the undersigned agree, in consideration of one dollar paid us, to discharge H. Schulting from the legal payment of the money loaned to him, Feb- ruary, 1866; said Schulting giving his moral obligation to refund the money, in part or whole, as his means will allow in the future," — Held, that the agreement was not an absolute discharge of the debt, but that, if the debtor acquired means in the future, and he refused to recognize the moral duty to repay the money, he would be liable in an action for the amount. The paper may be regarded as an agreement on the part of the creditors not to enforce their legal claims, so long as the debtor was without the means to pay. Where, after a creditor had signed such agreement, the debtor paid the creditor a portion of the original debt, and received a release from all claims and demands, — Held, that, notwithstanding such release, the creditor might maintain an action for the balance of the original loan if the debtor, at the time of obtaining release, concealed facts in regard to the value of his interest in certain property, which was of large value, but which, before the release, he had stated to the creditor was of little or no value, it appear- ing that when the action was commenced the debtor had means to pay his debts. Dambman v. Schult- ing, 54 Howard, N. Y. 289. DEEDS— DEED OP TEUST. 69 DEEDS. 226. Deei.— Construction. — Distances and Areas. — Where the distances and areas in the description of a deed do not correspond so as to describe the same quantity of land, the terms describing the distances will control that describing the area, and measure the quantity conveyed, in the absence of words indicating that the latter is to prevail. Sanders, et al. v. Good- ing, et al., 45 Iowa, 463. 226. Heeis.— Description in, hy words and figures, which shall govern. — In deeds as well as notes, where words and figures are used to describe the same thing, and are contradictory, the description by words will govern. Thus, where a deed conveyed "lot number (142), one hundred twenty -four (124)," the lot convey- ed was held to be 124 and not 142. Bradshaw, et al. v. Bradbury, 64 Mo. 334. 22 7. Deed. — Title. — No title passes by a deed for lands, without it has been delivered. A deed for land without the name of a grantee, when it is acknowledged and de- livered, is invalid. There must be in every grant a grantor, a grantee, and a thing granted*; and a deed wanting in either essential, is absolutely void. Whit- aker v. Miller, et al., 83 111. 381. DEED OF TRUST. 228. Jiii Blood, 123 Mass. 47. 278. Foreign Corporations. -Section 8 of the act of the- Legislative Assembly of Oregon, entitled " An act to- regulate and tax foreign insurance, banking, express, and exchange corporations or associations doing busi- ness in the State," approved October 21, 1864, is an in- direct 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 shall have complied with the provisions: of said section 8 is as to third parties void, and cannot be enforced by the corporation. BanTc of British Co- lumbia V. Page, 6 Oregon, 431. FORECLOSURE. 279. Foreclosure.— Prom/ssorg/ note. — The payee of certain promissory notes, having assigned the same to- another by a blank endorsement, executed to the as- signee, to secure the payment of such notes, a mort- gage on certain real estate, conditioned that it the- payee " shall pay said notes according to their tenor and eflEect, or cause the same to be paid, this mortgage shall be void," etc. Held, in an action upon such notes, and to foreclose such mortgage, by the assignee, against the maker and payee, that the plaintiff is entitled to personal judgment against both defendants for the amounts due on such notes, the foreclosure of such mortgage against the payee and execution over against the maker for any part of such judgment remaining: uusatished by the sale of the mortgaged premises. Held, also, that the liability of such payee is primary, and not merely that of an endorser. Robertson v. Cau- Me, 67 Ind. 420 ; also, Zekind v. NewMrJc, 12 Ind. 544; Burnham v. Gullentine, 11 Ind. 295 ; Watson v. Bea~ bout, 18 Ind. 281. FIXTURES — FRAUDS. 7S FIXTURES. 280. Fixtures.— Actual annexation to the realty or something appurtenant thereto, is the condition uport which property, ordinarily regarded as personal, be- come a fixture and part of the realty. The intention, to make a chattel a part of the realty, is only impor- tant upon the question whether the owner intended t» make the chattel so fixed a temporary or a permanent accession to the freehold. Having once been a part of the realty, a removal temporarily, without intent to sever permanently, will not reconvert the chattel into personalty and destroy its character as a fixture, Williamson V. Nexo Jersey B. R. Co., 29 N. J. 311. FRAUDS. 281. Fraud.— The rule is universal, whatever fraud creates justice will destroy. Where fraud is committed in the name of a corporation, by persons having the right to speak for it, for their personal benefit, they will be made to answer personally for the injury in- flicted by their fraud. Jewell v. Bowman, 29 N. J. 171. 282. 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. Reef- snider, etal., 46 Md. 555. 283. VrsM^B.— Statute of. — D. & Co. sued B. upon the following agreement, signed by B. and others, but not under seal: "We, the undersigned, take pleasure in recommending S. to D. & Co. We also severally agree to become responsible for $350 to said D. & Co., to be forthcoming in thirty days after the final delivery of the work. Held, 1. That the consideration for this 74 FEATJDULENT EEPEESENTATIONS. guaranty could not be collected, or implied with cer- tainty 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 pur- pose of showing that the guaranty did refer to a con- tract between S. & D. & Co. , and thus make out a con- sideration for it, was wholly inadmissible if objected to. Deutsche, et al., use of Kande%s v. Bond, 46 Md. 164. 2833^. Fraud Contract— 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 purchaser intends to pay, and has rea- sonable expectations of being able to do so, the con- tract 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. Hender- son, 31 Ohio, 163. 284. TraxiA.— Vendor and Vendee. — Intent of Ven- dor. — 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 lad to a knowledge of the fraudulent purpose of the seller. A purchaser in good faith, who has paid a part of the jjurchase money, is entitled to the possession of the goods, not- withstanding he may subsequently discover that the vendor sold them with intent to defraud his creditors. Jones V. Hetherington, et al., 45 Iowa, 681. FRAUDULENT REPRESENTATIONS. 285. Frandnlent Representations — Basis of. — 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 FEAUDtrLENT EEPEESENTATIONS. 75 t with fraudulent intent. 8titt v. Little, 18 Sickels, N". Y. 427. 286. Fraudulent Representations. — A mere fraudu- lent representation is not actionable per se. To re- cover, the plain tiflE must not only show that the rep- resentations 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 at. v. Blaine, 83 111. 25. 287. Fraudulent Representations. — Infancy is a bar to an action on a case of false and fraudulent repre- sentations by a vendor or pledgor as to his ownership of property sold or pledged. Doran v. Smith, 49 Rowell, Vt. 353. 288. Fraudulent Representations. — Material repre- sentations 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, al- though the vendor did not know them to be untrue. 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. 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 re- liance upon representations on the part of the vendor knowingly false and fraudulent, an action ex delicto may be maintained. Indianapolis, Peru & Chicago R. R. Co., Resps. v. Tyng, Appell., 18 Sickels, N. Y. 653. 76 GUARANTEE — GUARANTY. GUARANTEE. 289. GnsLvantee.— Construction of documents. — In an action on a guarantee, alleged to be contained in a letter and telegram in which there were no words of doubtful trade meaning, and the extrinsic facts not being in con- troversy, — Seld, that the question whether the words used amounted to a contract of* guarantee was for the determination of the court alone. The following words were held not to constitute a contract to guarantee : " Our friends H. and M. have purchased a cargo from Gr. Last year there was delay and trouble owing to bills of lading coming in different lots, and through more than one source, and without insurance being perfected. If you will obviate a repetition of this now you will oblige us. On presentation of cash order, and all documents at Union Bank, payment will be promptly made. Excuse this trouble." The BanTc of Montreal v. Munster BanTc, Irish Reports, Common Law Series, vol. 11, 47. GUARANTY. 290. Gruaranty.— What constitutes. — In response to an order for goods, plaintiffs replied that they would not deliver them unless the purchaser would procure some one to guarantee payment for them; the purchaser answered, stating that defendant had offered to assist him, and defendant endorsed upon the letter his agree- ment to the proposition. Held, that he was liable as guarantor. Westphal, Hinds & Co. v. Moulton, 45 Iowa, 163. 2901^. Guaranty.— Where the guarantor undertook to insure the payment of all indebtedness of his principal to the guarantee, whether consisting of accounts, notes, endorsement of notes or otherwise, the guarantor was held to be liable upon notes which his principal trans- ferred to the guarantee, with no other endorsement than simple words of guaranty. If, under the contract GUAEANTY. 77 of guaranty, the guarantee took other or different notes than those provided for in the contract, or gave additional time for payment to the principal, or vs^aived any material condition on which payment was to be made, the guarantor was released from liability. TTie Davis Sewing MacMne Co. v. McOinnis, et al., 45 Iowa, 538. 291. Guaranty.— If a promissory note in the hands of the payee has upon its back the signature in blank of a third person, the presumption, in the absence of proof, is that such person indorsed as a guarantor, but this presumption may be rebutted by clear and satis- factory proof of a different intention. Proof that the indorser' s name was put upon the note for the purpose of becoming liable as security that the maker .should be responsible for the payment of the note, and that the indorser refused to sign as maker, will not rebut the presumption of a contract of guaranty. Id. 120. No legal proceedings against the maker of a note are needed to fix the liability of a guarantor, nor is it necessary to show the insolvency of the maker, or to prove demand or notice of non-payment, or to use diligence against the maker. Stowell v. Raymond, 83 111. 120. 292. Guaranty. — Where assignor of order for money agreed, if not paid by party to whom addressed in a certain time, to pay its face value, notice to assignor of non-payment not necessary to recovery by assignee. Gammell v. Parramore, 58 Ga. 54. 293. Guaranty.— The sufficiency of a complaint found- ed upon a ' ' special promise to answer for the debt or doings of another," considered and determined. Parol evidence is admissible to show the circumstances un- der which such a promise was given. The objection that the consideration for such a promise is not stated, does not apply to a guaranty of a note where the written promise of the debtor sets forth a consideration and is made and delivered at the same time therewith. Wil- son S. M. Co. V. Schnell, 20 Minn. 40. 78 HOMESTEAD. HOMESTEAD. 294. Romeateai.— Incumbrance Upon. — Under the Code of 1851 and Revision of 1860, the homestead could be sold only to supply a deficiency existing after exhausting the other property of the debtor liable to execution, whether the debt §xisted before the pur- chase of the homestead, or was contracted afterward and secured by mortgage on the homestead. A mort- gage upon the homestead was of no validity unless both husband and wife united in the execution and the record of it, therefore, imported no notice to a subse- quent purchaser. Higley & Go. v. Millard., et al., 45 Iowa, 586. 295. Homestead.— A mortgage on property exempt under the homestead act cannot be enforced ; and the owner of such property may sell the same free from the mortgage he has imposed on it. Jacoh G. Yan, WicTcle V. Acee Landry, 29 La. 330. 296. Homestead. —A deed in ordinary form, executed by husband and wife, which contains no waiver of the homestead right, is sufficient to pass the title of the grantors to lands occupied by them as a homestead un- der the act to provide homesteads in Colorado (R. S. 285). BraJce v. Root, 2 Colo. 685. 297. Homestead Exemption.— A claim for homestead exemption, in order to avail against a debt, must rest upon a deed executed anterior to the creation of the debt. (Wagn. Stat. 698, sec. 7). Lincoln v. Bowe, 64 Mo. 138. 298. Homestead.— Unless one abandons his homestead right in a house, he does not lose it by living tempo- rarily in a rented house, especially if he has left part of his furniture in it. So held, where the owner was ab- sent on business for two years and kept his family with him. The duration of a man's absence from his own house does not of itself supply a conclusive presump- tion that he has abandoned it as a homestead. Bunker V. Paquette, 37 Mich. 79. HUSBAWD AND WIFE. 79 HUSBAND AND WIFE. 299. Husband and Wife.— When a wife executing a niortgage at the instance and upon the representations of her husband, will not be permitted to avoid the same on the ground of deception, or mistake. It is the right of the wife to demand that every paper pre- sented to her for her signature be fully read and ex- plained to her ; and if she omits to claim or exercise such right, and executes the paper solely upon the representations of her husband, she does so at her peril. Roach v. Karr, 18 Kan. 529. 300. Husband and Wife.— A husband, having reduced to his possession funds to which he became entitled in right of his. wife, cannot subject them to a voluntary trust for the wife to the prejudice of his creditors. Russell, et al. v. Thatcher, et al., 2 Del. 320. 301. Husband and Wife.— The husband becomes the ab- solute owner of the wife's legacy, and may dispose of it. Jacks V. Adair, 31 Ark. 616. 301K- Husband and Wife. A husband cannot loan money to his wife, both being insolvent. All property is held subject to the payment of the debts of the owner, except in so far and to the extent only that it has been specifically exempted. The income derived from a homestead is not likewise exempt from liability for the owner' s debts, and all acquisitions of property derived from such income are subject to sale under execution against the debtor; and the same is true of the natural increase of personal property set apart to the debtor as exempt from sale under execution. The homestead law does not vest in the owner any new rights of property ; it only imposes a restriction upon the creditor that in seeking satisfaction of his debts, he should leave to the debtor untouched five hundred dollars of his personal and one thousand dollars of his real estate. Citizens'' Nat. BanTc v. Green, 78 N. C. 247. 302. Husband and Wife. A bill was filed against a/e?rae 80 HUSBAND AND "WIFE. covert and her trustee for the purpose of charging her separate estate with a lien for materials furnished by the complainants for the improvement of the same ; the bill did not aver that there vras any contract by her to bind her separate estate, or any intention on her part to create a charge or specific lien thereon for the pay- ment of the complainant' s claim. On demurrer to the bill, it was Jield, that the bill stated no case entitling the complainants to relief in equity, and that the de- murrer be sastained. In order to charge the debts contracted by a married woman upon her separate estate as a lien in equity, it is necessary that it should affirmatively appear, that her contract was made vsdth direct reference to her separate estate, and that it was her intention to charge the same. Wilson & Himting V. Jones, et al., 46 Md. 349. 3023^. Husband and Wife.— Property conveyed to the wife, for which payment was made out of the husband's property is not liable to be taken under the provisions of R. S. c. 61, sec. 1, upon an execution recovered against the husband upon several debts, some of which accrued before and some after the conveyance. When a creditor unites two classes of claims against his debt- or in one suit, and obtains judgment therein upon them, he reduces that in which his rights are superior to the level of that in which thpy are inferior. Reed v. Woodman, 4 Me. 400 ; also Usher v. Hazeltine. 5 lis. 471 ; Miller v. Miller, 23 Me. 22 ; Quimly v. Dill, 40 Me. 538 ; Holmes v. Farris, 63 Me. 318. 303. Husband and Wife.— The other creditors of a hus- band cannot complain that he prefers to discharge a debt to his wife rather than those to them, nor will the relation of the parties, nor the fact that her claim is barred by the statute of limitations, be conclusive evi- dence of bad faith. French v. Motley, 63 Me. 326. 304. Husband and Wife.— In an action against husband and wife for necessaries furnished on the credit of the wife, the plaintiff, in order to recover judgment, need not prove that the husband has no property or is insol- INDEMNITY. 81 vent or refuses to support his family. To recover judg- ment against the husband, it is necessary only to prove that the debt was contracted by the w^ife for necessries for the support of the family of the husband and wiie. Hlgoney v. Nieman, 73 Penn. 330. 304)^.— A wife may mortgage her estate to secure future as well as present indebtedness of her husband. Haffey v. Oarey, 73 Penn. 431. 305. Husband and y^itd.— Contracts between, Void. — Husband and wife are incapable of contracting with, ■each other. Pillow v. Wade and wife, etal., 31 Ark. 678. 306. UnihAn^sin.i.'miiQ.— Conveyance of land iy hus- band to wife. — A voluntary conveyance of land made by a husband to his wife, through the intervention of a trustee, will not be held void as to future creditors on the mere ground that the husband subsequently be- •came insolvent. Such conveyance will be set aside at the suit of a subsequent creditor, only on proof that it was made with intent on the part of the grantor thereby to defraud such subsequent creditor or credi- tors. One having a valid cause of action, sounding in tort, against such grantor at the time of such con- veyance upon which an action was subsequently brought and judgment recovered, is to be regarded as a subsequent creditor. Evans v. Lewis, 30 Ohio, 11. INDEMNITY. 307. lnHLmxnity.— Subsequent circumstance. — Where the owner of real estate, in consideration of the agree- ment of another to become an endorser, to a specified amount, of negotiable paper of the former, executes to the latter a mortgage on such real estate, to indemnify Mm against loss, not only from such future endorse- ments, but also from similar endorsements already made, such future endorsements, when made, relate back to the execution of such mortgage, and are valid liens against encumbrances placed upon the mort- 82 INSUEANOE. gaged property subsequently to the execution of such mortgage, by persons having either actual or con- structive notice thereof, though such endorsernents be made by the mortgagee subsequent to the placing of such encumbrances and veith notice thereof. Brink- meyer v. Helbling, 57 Ind. 435. INNOCENT HOLDERS K^J) PURCHASERS. 308. Innocent Purchasers.— An unrecorded deed passes the title of the grantor to the grantee, but to be valid against creditors and purchasers without notice, it should be acknowledged or proved, and lodged for record within the time prescribed by law. The pro- tection of innocent purchasers in such cases, prior to the passage of the act of February 10, 1858, applied to purchasers from the grantor himself, but did not apply to purchasers from his heirs or devisee. Dozier & Go. V. Barnett & Co., 13 Bush, Ky. 457. 309. Innocent ^olA^vs.— Negotiable Paper. — The judg- ment bonds of a county in the hands of innocent hold- ers for value, with notice of their illegality for any cause, cannot be defeated by showing that the judg- ments were rendered upon warrants issued in excess of the constitutional limitation of five per cent., and that the board of supervisors fraudulently omitted to interpose the defense when the warrants were sued upon. The S. G. & St. P R. R. Go. v. The County of Osceola, et al., 45 Iowa, 168, Beck, J., dissenting. INSURANCE. 310. Insurance.— A policy of insurance should be con- strued most strongly against the insurer, and liberally in favor of the assured. Brick & Go. v. Merchants^ and Mechanics^ Ins. Go., 49 Rowell, Vt. 442. 311. Insurance.— Z/^/'e. — When a policy of life insur- ance contains a clause declaring it void on failure of the assured to pay the annual premium on the day it falls due, to work forfeiture, it is not necessary for the INTEREST. 83 insurer to give notice of intention to claim it, but on failure to pay at the time stipulated the policy becomes void because of the non-payment. Such conditions in a policy are not unreasonable or against public policy. Roeliner v. Knickerhooker Life Ins. Co., 18 Sickels, ]Sr. Y. 160. 312. Insurance.— iJfarme. — One who has the control of property, either as owner, consignee or agent, may effect an insurance thereon in his own name, on account of whom it may concern, loss payable to him ; and, in case of loss, may maintain an action thereon. An over-valuation does not per se render a valued marine policy void ; in the absence of fraud, accident or mis- take, the valuation agreed upon is binding and conclu- sive, however largely in excess of the true value. Sturne V. At.M. Ins. Co., 18 Sickels, N. Y. 78. INTEREST. 313. Interest.— To an action for money loaned, and for interest upon money loaned and upon an account stated, a plea that the several promises were to pay in- terest at a greater rate than ten per cfent. per annum, and that such promises were not in writing, is bad. If upon payment of the principal sum due on a promis- sory note, the maker promises to pay interest due on the same note at a future day, and the payee there- upon cancels the note, and deliver it to the maker, to enable the latter to show it to other parties with whom he has dealings, an action may be maintained upon such promise. Hall v. King, 2 Colorado, 711. 314. Interest. — When both parties lived in Virginia during the war, the creditor is entitled to war inter- est. Johnston, Trustee, &c. v. Wilson'' s Adrn'r, et at., 29 Grattan (Va.) 379. 315. \\i\jet^'sX.— Sureties liahle for interest as damages in an action upon an official bond. Interest upon the balance due from the principal was properly allowed from the date when he rendered his account. Jenness V. City of BlacJihawk. 2 Colorado, 578. 84 INTEREST. 316. Interest. — Ten per cent, interest for discounts on loans can be taken under the general banking law of Michigan (Comp. L. sec. 2185). Cameron^ et al. v. Merchants' & Manufacturers' Bank, 37 Mich. 240. 317. Where ten per cent, interest is exacted, the rate need not be expressly stated in writing ; it is enough if the contract clearly expresses the sum to be paid. The statutory requirement that stipulations for ten per cent, interest shall be in writing was meant to prevent ambiguity as to what interest was to be paid, and to conform to the rule rejecting parol explanations of writings. Id. 318. Interest.— A promissory note was made in 1872, with interest payable semi-annually at the rate of eight per cent, per annum, which was then legal. The note was given for a loan made by a corporation, and was intended to run for several years. In 1875 an act was passed limiting the rate of interest in Connecticut for money loaned to seven per cent. Held, that eight per -cent, continued to be the legal rate of interest upon the note, after the act was passed, and until the note was paid. The note was given by a husband and wife and secured by a mortgage of her land. The husband at the same time signed a paper agreeing to an increase of interest so long as any interest remained unpaid, and to a foreclosure if it remained unpaid sixty days after due. Held, that this paper was admissible for the purpose of showing that a permanent loan was in- tended. Seymour v. Continental Life Ins. Co., 44 Conn. 300. 319. Interest. -The act of April, 1873, Code of 1873, ch. 173, sec. 14, p. 1120, which authorizes the abate- ment of war interest upon debts contracted before the 10th of April, 1865, is unconstitutional and void ; and a creditor residing in Virginia during the war is en-, titled to have interest upon his debt. Pretlow v. Bailey's Ex' r, et al., 29 Grattan (Va.) 212. 320. Interest.— An allowance for the failure to pay at interest: 85 maturity money due by contract, is regarded as dam- ages for the breach of contract, not as interest on the money due. The measure of such damages is the value of the use of the money during the time for which it has been withheld. The stipulation of the parties as to the rate of interest after maturity may be accepted as the measure of damages, provided they adhere to what may be reasonably sufficient to compensate the loss arising from the breach of contract. If, however, the rate of interest specified in the con- tract greatly exceeds the real value of the money, it is to be regarded as a penalty for non-payment of the principal sura, rather than a just recompense for de- taining it. In the absence of evidence as to the current rate of interest at the time the contract was made, the rate specified in the contract may be accepted as the true measure of damages. Broione v. StecTc^ 2 Colorado, 70. 321. Interest— Compoicnd Interest is never allowed, except in special cases ; as, where there has been a settlement of accounts, after interest has become due ; or there has been an agreement for that purpose, sub- sequently to the original contract ; or a master's report, computing principal and interest, has been confirmed. Connecticut v. Jackson, 1 Johns. Ch. 13 ; StougMon V. Lynch, 2 Johns. 209. 322. Interest— C. and P. executed their single bill, dated October 18, 1871, whereby they promised "six months after date to pay to H. or order the sum of seven thousand dollars, with interest at the rate of 12 per centum per annwm from date." Held, 1. The contract for interest at the rate of 12 per cent, per an- num, was legal under the constitutional provision in force at the time of the contract, and is not affected by the subsequent abolition of that provision. 2. The obligors in the bond are bound to pay interest after the rate of 12 per cent, per annum, not only up to the maturity of the bond, but after maturity and until the Ob INTEREST. payment thereof. Cecil & Perry v. Hicks, 29 Grattan (Ya.) 1. 323. \n\m%si.— Compound. — An agreement, made at the time of the original loan, that interest shall be com- pounded, in case of default in jjaying it when due, is not valid. Yan Benschooten v. Lawson^ 6 Johns. Ch. 313 ; also Yan Rensselaer v. Jones, 2 Barb. N. Y. 643. 324. Interest.— Where a promise is made to pay in labor and material in annual payments, interest does not begin to run until the year is completed in which any given payment is to be made, and the debtor is in default. Fredenburg, Adm. v. Turner, etal., 37 Mich. 402. 324X. Interest. — When interest is made payable an- nually upon a fixed date, the fact that the first install- ment falls due within a year is not a departure from the terms. Griffin, et al. v. Johnson, et al., 37 Mich. 87. 325. Interest.— Upon a guaranty endorsed upon a promissory note, the interest specified in the note, as well as the principal sum, may be recovered. Martin V. Hazard Powder Co., 2 Colorado, 569. 326. Interest. — A promise to pay on demand £200, with interest, is a promise to pay interest from the date of the note. Baxter v. Robinson, 2 Rev. de Leg. 439, K. B. 1816. 327. Intereest.— A note which contains the following as to the interest, viz.: "With interest at the rate of sixteen per cent, per annum from date," bears the legal and not the conventional rate of interest, after maturity. Newton v. Kennerly, 31 Ark. 626. 328. Interest.— 07i Accounts. — By the statute of 1869- 70, p. 699, accounts draw interest only from the day on which they are settled, and a balance is ascertained. Banlc of California v. Northam, 51 Gal. 387. 329. Interest. — A depositor in a national bank, when it suspends payment, and a receiver is appointed, is entitled, from the date of his demand, to interest upon his deposit. The interest being a liquidated sum INTEBLINEATIONS. 87 at the time of the payment of the deposit, an action lies to recover it, and interest thereon. National Bank of the OommonwealtJi v. Mechanics' National Banlc, 94 U. S. 437. INTERLIlSrEATIOISrS. 330. Interlineations. — It was said in Stanierry v. Moore, 56 111. 472, that the practice of making amend- ments by erasures and interlineations is a bad one, and ought not to be tolerated : that a paper thus disfigured ought to be stricken from the files. This, however, was not necessary to be said, as that matter was not a point of the case. The remark was only intended to indi- cate a better practice. Oarrity v. Wilcox, et al., 83 111. 159. 330. Interest.— A judgment to bear interest at ten per cent, per annum until paid was proper on a note bearing interest at the rate of ten per cent, per annum "from date until paid," the statute authorizing ten per cent, interest when the note was executed. Cros- ihwait & Go. v. Misener, 13 Bush, Ky. 543. 331. Interest— When at the place of contract the rate of interest differs from that at the place of pay- ment, the parties may stipulate for either rate, and the -contract will govern. Cromwell v. County of Sac, 96 TJ. S. 51. 332. Interest on interest. — The bonds of a railway oompany were made payable on the first day of Janu- ary, 1861, with interest, " at the rate of six per cent, per annum, payable half-yearly, at said treasurer's office, on the first days of July and Januarj' of each year after the first day of January, 1851, upon the surrender of the corresponding warrants hereto annexed." Held, that interest after maturity and the payment of all the coupons was recoverable by way of damages for the detention of money due, and should be computed at six per cent., without semi-annual or other rests. Ash- melot B. E. Co. v. Elliot, 57 Hall, N. Y. 397. 333. Interest— By the act of 1872 it was provided 88 IRREGULAEITY — LAPSE OF TIME. " that no greater rate of interest than six per centum per annum shall be recovered in any action except where the agreement to pay such greater rate of inter- est is in writing." The agreement in the note to pay eight per cent, should, not be construed to extend be- yond its maturity, especially in face of the stipulation,, where the interest after maturity is treated as a penal- ty, not covered by the contract, and liable to be raised, on a contingency. Fisher v. Bidwell, 27 Conn. 363^ Brewster v. Wakefield, 22 How. 118 ; LudwicJc v. Huntzinger, 5 Watts & Serg. 51. 334. Interest Coupons.— Upon the bonds of a railroad corporation received, by one who has advanced the- money with which they were taken up, under an agree- ment that they were to be delivered to him uncanceled as security for the advances, as against the corporation are valid securities in the hands of the holder, and a mortgage upon the corporate property given to pay^ the bonds may be enforced for his benefit. Union Trust Co. of N. Y. v. Monticello and Port Jervis R. R. Co., 18 Sickels, JST. Y. 311. 335. Interest.— Where the contract does not fix the^ rate of interest to be paid after the maturity of the- date, the law fixes the rate at six per cent. Evans v.. Chapel, 13 Bush, Ky. 121. IRREGULARITY. 337. Irregularity.- A party consenting to a proceed- ing which he might prevent by resisting it on account- of irregularity, thereby waives all exception to suclt irregularity. Patton v. Hughesdale, 11 R. I. 188. LAPSE OF TIME. 338. Lapse of Time.— Trustee and cestui que trust. — Lapse of time does not bar a direct trust as betweeit the trustee and cestui que trust. Otherwise as to con- structive trusts. Castwell, Adin'r v. PerJcins, 2 Del. 102. LIENS — MAEEIED WOMEN. 89 LIENS. 339. LLen.— A lien is neither property nor a debt, but a right to have satisfaction for a debt and of property, and is not the subject of sale or assignment. Roberts, et al., V. JacJes, 31 Ark. 597. 340. Lien.— Transfer, Release. — While the holder of a debt, secured by a lien, cannot transfer the lien to a stranger, without also assigning the debt, he may re- lease it on claiming an interest, or a junior lien on the property. Bucliner v. Mcllroy, 31 Ark. 631. 341. U^n— Change of. — In exchanging one form of security for another for the same debt, no other lien can intervene and become paramount thereto. Thorpe Brothers v. Burton, et at., 45 Iowa, 192. LIFE POLICY. 342. Life Policy is a CJiose in Action. — The sale and assignment of a life policy, outstanding and valid, and containing no prohibition of such alienation, is good in Rhode Island, though made to one who has no interest in the life insured, provided such sale aad assignment is a bona fide business transaction, and not a device to evade law. Clarlc v. Allen, 11 R. I. ; also Trenton Mut. Life Ins. Co. v. Johnston, 24 N. J. Law, 576 ; Campbell v. Mut. Life Ins. Co., 98 Mass. 381. MARRIED WOMEN". 343. Married Women. — Husband! s Consent may be Implied. — Where a husband left this State for Cali- fornia, leaving his wife in charge of his farm, and to manage the same, and during his absence the wife sold a horse, taking a note, payable to herself, for the price, and endorsed the same to a creditor of the hus- band in payment of his debt, and the husband, on his return, approved the same, it was held, that the wife's endorsement could be sustained on two grounds : an implied authority from her husband, and his subse- 90 MAREIEB WOMEN. qaent ratification. Mudge v. Bullock, AdmCr, 83 111. 22. 344. Married ^om^n.— Endorsing for her Husband. — An answer of a married woman, made to an action by the endorser of a promissory note to charge her sep- arate estate, on her endorsement thereof, which denies that she intended to charge her separate estate, and avers that she endorsed the salne through the influ- ence and persuasion of her husband, and not of her own free will, and that she received no part of the money paid for said note, but the same was used for the sole benefit of her husband, states a good defense to such action. The endorsement by a married woman of a promissory note, solely for the accommodation of her husband, and as surety thereon, in order to enable him to dispose of the same, is, of itself, not sufficient to warrant a court of equity in presuming that she Intended to charge her separate real estate with the payment of the same. Levi v. Earl, 30 Ohio, 147. 345. Married Woman.— A married woman cannot bind herself by contract, under Gen. Stats, ch. 164, sec. 13, unless such contract is in respect to property held by her in her own right. Blake v. Hall, 57 Hall, N. H. 373. A contract by a married woman, for groceries sold to her upon her promise to pay for the same out of wages to be earned by her under a subsisting con- tract with a third party, is not a contract made by her in her own right, and therefore is not within the pro- visions of Gren. Stats, ch. 164, sec. 13. Muzzey v. Jteardon, 57 Hall, N. H. 378. 346. Married Woman. — A promissory note given by a married woman and her husband for property pur- chased by her as sole trader, is valid in law, and the amount of such note may be recovered against the hus- band and wife in an action of assumpsit. Barnes v. Be France, 2 Colorado, 294. 347. Married Women. — BeMs of husiand. — The sale or mortgage by a married woman of her separate prop- MAESHALLING SECURITIES. 91 erty for the payment of her husband' s debts may be enforced. Moore v. Fuller, 6 Oregon, 272. 348. Married Woman. — At common law, the promis- sory note of a married woman is void. The constitution and statute of this State make no change in this re- spect. Neither at law nor in equity can she bind her- self so as to authorize a personal judgment against her. Dollner, Potter & Co. v. Snow, et als., 16 Florida, 86. 349. Married Woman. — Where money is lent to a mar- ried woman, upon an agreement that it shall be applied to the use of her husband or his firm, she is not liable on a note given by her therefor prior to the St. of 1874, c. 184. Nourse v. HensTiaw, 123 Mass. 96. MARSHALLING SECURITIES. 350. Marshalling Securities. — The assignee of certain mortgages, having a collateral security for money ad- vanced upon the mortgages, was required for the ben- fit of junior creditors against the mortgaged property, first to exhaust his remedy upon the collateral security. A creditor having the security of two funds out of which he can satisfy his debt, upon one of which only another creditor has a junior lien, will be compelled in equity to resort first to the fund which the junior cred- itor cannot reach. Logan, et at. v. Brick, et at., 2 Del. 206. 351. Marshalling of Securities. — A. held a mortgage on two tracts of land, B. also held a mortgage on one of the tracts ; in a proceeding by A. to foreclose, B. sought to compel him to exhaust the tract not em- braced in his mortgage first. The widow of the mort- gagor, who was also a party, claimed a homestead in the latter tract. Held, that by reason of the widow's equity, the securities should not be marshalled. Where one creditor has a security upon two funds, another, having a security on one of them, may, if neces- sary to the protection of his security, compel the other to resort to the fund embraced in it, if it can be done without prejudice to the other creditors or 93 MERGER — MISTAKES. injustice to the common debtor or third persons hav- ing an interest in the fund. Marr v. Lewis, 31 Ark. 203. MEEGER. 852. Merger.— A conveyance of the fee to a mort- gagee will not merge his mortgage, where such inten- tion on his part does not exist, and no detriment to other encumbrancers shown. Andrus v. Vreeland, 29 N. J. 394. MISTAKES. 353. Mistakes in Payment of Money.— Money paid under a mistake of a material fact may be recovered back al- though there was negligence on the part of the person making the payment, unless the position of the party re- ceiving it has been changed in consequence thereof, and it would be inequitable to allow a recovery. If circumstances exist taking the case out of the general rule allowing a recovery, the burden of proving them rests upon the party resisting the repayment. Mayer V. TJie Mayor, 18 Sickels, N. Y. 4.'55. 354. Mistake is recognized as a sufficient ground upon which to decree the reform of a deed, but the courts exercise their power in this respect with great caution, and only upon very clear and satisfactory proof. Mendenhall v. StecJcell, 47 Md. 453. 355. Mistake. Question of Payment. — The endorser, upon receiving notice of protest, sent the money to take up the bill. The holder, under an honest mistake, in- formed him that it was taken up ; in consequence of which he was prevented from taking up the bill and collecting it from the drawer, who became insolvent. Held, that the holder could not afterwards recover from the endorser. He was estopped. That he made the misstatement in good faith makes no difference. The estoppel applies, not on the ground of willful fraud in making the representation, but that showing the repre- sentation, to be true, to the prejudice of the endorser, MISTAKES. 93 would be a fraud. Kingsley v. Yernon, N. Y. Supe- rior Court, 4 Sandf. 361. 356. Mistake. — The defendant having several con- tracts, produced one of them, supposing it to be a differ- ent one, and settled with plaintiffs, under this mistake. Held^ that under the circiimstances he was not estopped from proving the truth of the case. Young v. Bush- nell, 8 Bosw., N. Y. Superior Ct. 1850, 1. 357. Mistake.— Although a party to a lease may be misnamed in the body of the writing, yet if he signs it it is his contract, no matter by what name he is called in the body of the instrument. Montanye v. Walla- Tian, 84 111. 355. 358. Mistake, to avoid an agreement, must be a mis- take, not of law but of fact, and it must be a plain mistake, clearly made out by satisfactory proof — not resting upon evidence loose, equivocal or contradictory. Pickering v. Day, 2 Del. 383. 359. Mistake.— It 5ee?ras that a mere inadvertent mis- take, made by a bankrupt in stating the amount of a debt, will not avoid, as to the creditor, a composition made under and in pursuance of the act of Congress of June, 1874 (sec. 17), amending the Bankrupt Act. Beebe v. Pyle, 71 IST. Y. 20. 360. Mistake. — Deed may be corrected, liow far. — In a suit to reform a deed, lands which were not in- cluded in the deed, but omitted by mistake, may be in- serted in the deed as reformed. Loomis v. Ramsey, 6 Oregon, 368. 361. Mistake. — Degree of proof required to reform instrument on the ground of. — In order to warrant a court of equity in reforming an instrument on the ground of mutual mistake, the proof of the mistake and that it was mutual must be clear. Where the com- plaint alleges mistake and asks relief on that ground alone, the court will not reform the instrument on the ground that one of the parties to it was guilty of a fraud in executing it. The complaint should point out the mis fake and show in terms what the tenor of the 94 MOETaAaES. instrument ought to be. It is not sufficient to say that it was the intention of the parties to make an instru- ment that would accomplish a certain object, and then ask the court to make a writing that will accomplish that object. The complaint should show the true contract in its terms. Stephens v. Murton, 6 Oregon, 193. MOETGAGES. 362. Mortgage.— A. 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. endorsed the note to C, and afterwards assigned the mortgage to D., and delivered to him another note similar in terms, and each paid a valuable considera- tion to B. Held, that C. was entitled iu equity to an assignment of the mortgage from D. Morris v. Bacon, 123 Mass. 58. 863. Mortgagee's RigM of Entry. — The mortgagee after condition /broken, tiiay, without notice, enter upon the mortgaged premises and take possession thereof, if he can do so peaceable and unresisted. 364. About January 1, 1874, the plaintiff went away on a visit, and left his son, a lad, in care of the prem- ises ; that on January 3, the defendant went to the premises and enquired of the boy for the plaiintiff, stepped upon the door-step, and proclaimed that he took possession of the premises as owner, went quietly into the house, which was unfastened, the boy neither resisting nor consenting, removed the plaintiff's goods therefrom to an open shed, and left them there in the custody of the boy, and fastened up the house, and forbade the boy to enter. Fuller v. Eddy, 49 Eowell, Vt. 11. 365. Mortgage.— In a writ of entry brought by a mort- gagee against the heirs of the mortgagor, to foreclose a mortgage of land, it is a good defence that the mort- gage was given without consideration ; and parol evi- dence is admissible to show that no debt ever existed MORTGAGES. 95 between the parties to the mortgage. Hannan v. Han- nan^ 123 Mass. 441. 36G. Mortgage.— A mortgagee who makes an absolute assignment of a mortgage to her agent, can claim no relief as against a hona fide holder to whom the agent assigned it as security for his own debt. Grocers' B'lc V. Neet, 29 IST. J. 449. 367. Mortgages.— A mortgagee's power to sell only continues as long as the debt exists. When the debt is extinguished, the power to sell ceases, and an at- tempt to exercise it is, therefore, ultra mres, and transfers no title, unless the mortgagor so acts as to estop him from showing the facts. Lycoming Fire Ins. Co. V. Jackson, 83 111. 302. 368. Mortgage or Sale. — A bill of sale of a vessel, like a deed absolute on lis face, may be shown by parol to be, in fact, a mortgage only, or a mere security for a debt. National Ins. Co. v. Webster, 83 111. 470. 369. Mortgage.— Where a party sells one of a series of notes, secured by mortgage on certain property, without warranty, and reserving to any holder of any other of said notes equal rights, it will not debar him from subsequently proceeding on another of ■ said notes, and subjecting said property to the ratable sat- isfaction of each of said notes. Howard v. Schmidt, 29 La. 129. 370. Mortgages.— An equitable mortgage may arise from non-payment of purchase-money, a deposit of title deeds, or an unsuccessful attempt to make a valid mortgage deed. Gale v. Morris, 29 IsT. J. 222. 371. Movtgsige.— Foreclosure. — Where a senior mort- gagee forecloses his mortgages without making a junior mortgagee of the same premises a party to his action for the foreclosure, the rights of the junior mortgagee remain unaffected, and are not prejudiced by such foreclosure. Stewart v. Johnson, 30 Ohio, 24. 372. Mortgage. — Deed. — Where one person advances money for another with which to purchase the title to land, taking the conveyance in his own name, as a security for the money so advanced, with interest, his 96 MORTGAGES. deed will be treated as a mortgage, and on repayment he will be required to convey to the person for whom he so purchased. Strong, et al. v. Shea, et al., 83 111. 575. 373. Mortgage. — The holder of a mortgage, given by a wife with her husband's authority, on her separate property, without the authorization of the judge under the Act of 1855, must prove that the debt which the mortgage was given to secure inured to the wife's separate benefit, before he can hold her liable. A wife separated in property is liable for her proportion > of the household expenses, and for the whole of such expenses, if her husband is without means. Mrs. Mary L. Hardin v. Wolf & Cerf, 29 La. 333. 374. Mortgages.— An instrument of conveyance that on its face purports to be given to secure a payment, is merely a mortgage. Cowles v. Marlle, 37 Mich. 158. 375. Mortgage. — Sale of by a mortgagee. — A sale by a mortgagee has the same effect as a sale by the mort- gaging debtor. A mortgagee's sale relates back to the date of the mortgage, so far as to cut off redemption rights under titles or liens subsequent to the date of the mortgage, and to substitute for such redemption rights the pecuniary surplus from sale, which surplus is treated as the realty would have been. De Wolf v. Murphy, 11 R. I. 630 ; Denton v. Nauny, 8 Barb. S. C, K Y. 618 ; also, Mills v. Van Yoorhis, 23 Barb., 30 ]Sr. Y. 412. 376. Mortgage. — A grantee executed, at the same time and place, two mor.tgages on the same lands, one a purchase-money mortgage to his grantor, the other a mortgage to secure a bond given by himself and three sureties to W., for $2,000, which were paid at the same time to the grantor. Held, that W. could not, by hav- ing his mortgage registered first, acquire a priority over the purchase-money mortgage ; and that W.'s assignee held it-subject to the same equity. Brasted v. Sutton, 29 N. J. 513. MORTGAGES. 97 377. Moi-tg-age. — Besides a mortgage on lands, a chat- tel mortgage, covering the fixtures thereon, was exe- cuted at the same time and to secure the same debt, consisting of several bonds. IIeld,th.Si\j one bondholder could not, by obtaining a judgment on his bond and levying on such fixtures, acquire a preference over the other bondholders, even if those fixtures were not a part of the realty, and the chattel mortgage had not been re-filed within the time required. Fish v. New York Water Proof Paper Co., 29 IST. J. 16. 378. Mortgage.— A lien or mortgage, securing a nego- tiable note, passes as an incident to the note, to the as- signee or endorser, free from the equities between the original parties. Duncan v. Louisville, &c., 13 Bush, Ky. 378. 379. Mortgage.— An assumption of a mortgage con- tained in a deed and to a married woman, without her knowledge or consent, and never delivered to her, does not bind her. Culver v. Badger, 29 N. J. 74. 380. Mortgage.— A. executed a deed or mortgage of land containing the condition "that if, on demand, there shall be paid" $1,000 on a certain promissory note, signed by A. as indorser, then the deed shall be Toid. The note was signed by A.' s son, as principal, and was for more than $1,000, and was given on ac- count of a defalcation of his, and upon the giving of which the son was taken back into the promisee's employ, upon an agreement that a part of his wages should be applied in payment of the debt; under which arrangement more than $1,000 was received by the promisee, out of the son's wages, leaving more than $1,000 due on the note. Held, on a bill in equity by A. to redeem the mortgage, that the amount re- ceived from the son's wages was not to be credited to the mortgage. Popple v. Day, 84 111. 520. 381. Mortgages.— An assignee of a mortgage takes it subject to all defences existing against the mortgagee in favor of the mortgagor, but free from latent equities 7 98 MORTGAGES. existing in favor of third persons. De Witt v. Vart- Sickle, 29 N. J. 209. 382. Mortgage.— The grantee of a mortgagor of land cannot, because of fraud practiced by the mortgagee upon the mortgagor in obtaining the mortgage, main- tain a bill in equity against an assignee of the mort- gagee to restrain a sale of the mortgaged premises- under a power in the mortgage, without paying the entire debt secured by the mortgage, although the mortgage was assigned to the defendant as security for a less amount. Foster v. Wiglitman, 123 Mass. 100. 383. Mortgage.— Assignment. — An assignment, duly recorded, by the holder of a mortgage containing a power of attorney of sale, and made to secure two notes for §1,000 and 82,000, of " the said mortgage deed, the real estate thereby conveyed, so far as the same is security for said note of 81,000, thereby se- cured." transfers the mortgage as security in the first place, for the payment of the whole of the note of $1,000, although the assignment contains no covenant of warranty. Foley v. Rose, 123 Mass. 557. 384. Mortgage. — If one who holds, by an assignment duly recorded, a mortgage and a note endorsed in blank, purporting on its face to be secured by it, ' ' the same being collateral to" a certain note, assigns the mortgage, and afterwards endorses the note for which it was collateral, retaining the mortgage note, to an- other, 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 assigns the mortgage upon a separate paper as collateral security for a loan, is nof^ such a purchaser. Strong v. Jackson, 123 Mass. 60. 385. Mortgage.- — 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 MORTGAGES. 99 suiRcient to pay off all the. four mortgages, the fourth, mortgagee can maintain an action against him for money had and received. Gook v. Basley, 123 Mass. 396. 39G. Mortgage. — 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, delivered the note unendorsed to C, and afterwards assigned the mortgage 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. Morris, 123 Mass. 55. 387. Mortgage. — A bcma fide assignee of a mortgage is entitled to hold it as against the original owner, who, by placing it in her agent's hands assigned in blank or for a particular purpose, gave him the opportunity to perpetrate a fraud upon her. Putnam v. Olark, 29' W. J. 412. 388. Mortgage. — Cancellation. — The unauthorized cancellation of a mortgage by the recorder of mortgages cannot impair any rights of the owner of the mort- gage. Mechanics' Building Association v. Ferguson, 29 La. 548. 389. Mortgage.— A lessee of land became the owner of an undivided portion 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 afterwards entered to fore- close. 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. ToMn, 123 Mass. 85. 890. Mortgage, not recorded. — The mere fact that a 100 MORTGAGES. mortgagee withholds a mortgage from record does not necessarily invalidate the mortgage as against credi- tors ; it may have effect against him after it is recorded, unless it is impeached for fraud, and in determining that question such withholding from record must be considered. Black v. HuMman, 40 Ohio, 196. 391. Worigsis^s.— Equity of Banlc in. — Latent equity. — Bankers^ liens. — M., one of the defendants, en- tered into a contract with H. in the summer of 1872 to the effect that H. would furnish him with building ma- terials, and M. would pay H. therefor at the market rates, a portion by a mortgage and a balance in cash. H. furnished the materials as they were required by M. , and at various times in August and September M. ^ave H. four promissory notes for $1,000 each. Three of the notes were endorsed by H. and delivered to the Manufacturers' and Builders' Bank, which discounted the same for him. The fourth note was also endorsed by H. and offered by him to the Eleventh Ward Bank I'or discount, and was by it refused, and they never paid any sum to him on the credit thereof ; but when applied to by H. said bank refused to surrender the note, but claimed to hold the same for a general bal- ance of account owing by him to the bank, arising on previous dealings with him. On September 25, 1872, M. and wife executed and delivered to H. the bond and mortgage in question to secure the sujn of $7,000, which was justly owing to H. for materials furnished, and in final settlement of the amount for such mate- rials a credit was given by him on account of said mortgage for the full face thereof. H. promised to pay the three notes discounted for him by the Manu- facturers' and Builders' Bank out of the proceeds derived from the sale of the mortgages, and also to procure and surrender to M. the note offered to the Eleventh Ward Bank for discount, but he was pre- vented from performing this promise by the bank's re- fusing to surrender the same. It was not intended or agreed at the time the bond and mortgage was deliv- MOETGAGES. 101 ered to H. that it was to be assigned to the Manufac- turers' and Builders' Bank as security for the notes held by them or for any other purpose, and the only agreement relating to said notes was as above stated. H. assigned the bond and mortgage to Daniel P. Ingra- ham, Jr., who assigned the same to Edward B. Stead (both assignments being for a valuable consideration), who afterwards duly assigned the same to plaintiff, who paid therefor the sum of $6,700. The plaintiff had no notice or knowledge of any claim or equity against said bond and mortgage, and as an inducement to purchase the same there was shown and delivered to him a certificate of both of the mortgagors, asserting said bond and mortgage to be valid and free from all defences and equities. In action to foreclose the mort- gage, Held, that the bank had no right upon declin- ing a discount to retain the note, and its action was clearly tortious. The bankers' lien does not extend to such paper. 392. Held, further, that even if the right to hold the note were established, the banker had no possible equity in the mortgage. Such an equity could attach, if at all, only in favor of one who had actually nego- tiated the note or parted with the value upon the strength of the security. Although, as to the receiver there is, perhaps, a case of a latent equity arising out of an implied trust, such an equity is not to be preferred to that of a hona fide assignee for value received. Equity will not aid a cestui que trtost against a bona fide purchaser (from a trustee) without notice of the trust. Where the mort- gage was ultimately given to H. without reserve and with a mere understanding as to the application of the proceeds, no equity is raised in the security, certainly not as against the plaintiff, who has paid full value, and who could not, by any proper enquiry, have learned of the latent equity. Petrie v. Myers, et al., 54 Howard, N". Y. 513. 393. Mortgag'e.— The plaintiff, being embarrassed, 102 MOETGAGES. upon defendant' s advice conveyed to him real estate, on defendant's parol promise that he would obtain from a building association, on the security of the real estate, a loan, with which he would pay plaintifi's liabilities, repay the loan from the rents, and reconvey to plain- tiff when the loan should be repaid. Held^ that the transaction was a mortgage. The purpose not being to sell, but convey as security, it is immaterial that de- fendant was to procure the money at a future time and from a third person. The defendant received the deed without consideration, except his promise to raise the money for plaintiff ; if it was not intended to be raised it would be a fraud, and the defendant a trustee ex inaleficio. The plaintiff's bUl charged that defend- ant held in trust for him ; did not allege that he was mortgagee, and prayed for account and reconveyance ; it was dismissed below on the ground that there was no trust. The facts set out showing it to be a mortgage, the Supreme Court sustained the bill, to reach the jus- tice of the case, disregarding the use in the bill of in- appropriate terms. Danzeisen^ s Appeal, 73 Penn. 65 ; Barnet v. DougTierty, 8 Casey, 371 ; Sweetzefs Ap- peal, 21 P. F. Smith, 264. 394. Mortgage Uen.—Priority. — In August, 1872, F. and H. executed a joint note to Gr., payable in one year. On the face of the note each appeared as prin- cipal. The note was, in fact, given for borrowed money, and the money was borrowed for F. , and re- ceived and used by him. To secure this note H. gave a mortgage on certain real estate, which mortgage was duly recorded. In September, 1873, F. handed to H. the amount of the loan, and took from him a receipt therefor, in which the latter promised to pay the note, but instead of then paying it, he obtained an exten- sion of a year, by the payment of advance interest and a bonus. In January, 1874, H. borrowed money of S., and gave a note secured by a mortgage on the same and other property. In September, 1874, F. jjaid to Gr. the amount then due on the note, and took an as- ITATIOlirAL BANKS. 103 signment without recourse. Held, that at the first E. was to be regarded as 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 lat- ter to pay the note, and the obtaining of a year's ex- tension of the time of payment, H. became in equity the principal debtor ; and that as all this took place before the note and mortgage to S., the latter' s rights were in no way prejudiced ; and that F. by his subse- quent 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 Kansas, 365. 395. Mortgages. — A third person cannot be affected by any notice of a mortgage, except the notice conveyed to him by the inscription of the mortgage. All are third persons, except the parties. The inscription of a mort- gage, after the lapse of ten years from the date of in- scription, unless re-inscribed, is utterly void as to third persons, and is no longer any proof of the mortgage, even between the parties to it. Adams & Co. v. Dau- nis, 29 La. 315. NATIONAL BANKS. 396. National Banks. — A national bank is liable to be sued in any court having jurisdiction ; it is not com- petent for Congress to restrict the jurisdiction to any particular courts. OooJce v. State Bank of Boston, 52 N. Y. 96 ; S. C, 50 Barb. 339. 397. National Banks. — ■Stockholders'' Liability. — A religious society purchased and held in its own name certain shares of a national bank, using for the pur- pose a fund which had previously been given to such society by a testator, the whole bequest being used in the purchase. The society had other funds, given by other donors, which were otherwise invested. Held, that the society was not to be regarded as a trustee. 104 NATIONAL BANKS. but as an ordinary stockholder, and was liable as such to assessment for the debts f)f the bank on its failure. Ban's Y. Essex Baptist Society, 4-i Conn. 582. 39S. Natioual Banks.— Under and by the provisions of National Banking Act (sees. 8, 28), a national bank is prohibited from talking a mortgage upon real estate, except for debts conti-acted prior to the giving of the mortgage ; and a mortgage given to secure future in- debtedness is void. Crocker v. Whitney, 71 N. Y. 161. 399. National Banks.— S^ec/aZ deposit. — A special de- posit of bonds was left by a customer with the cashier of a national bank for safe keeping, with the knowledge of its directors, and the cashier gave a receipt therefor. The bonds were subsequently stolen and the bank of- fered no satisfactory explanation of the manner of the theft. Held, that there was sufficient evidence of gross negligence to be submitted to the jury. Held, further. that a recovery could be had against the bank if the bonds were stolen through the gross negligence of its officers. Bank v. Graham, 85 Penn. 91. 400. National Banks. — It seems that a bank, in the ab- sence of any restriction imposed by its charter, may take a mortgage to secure anticipated liabilities, as well as those existing at the time ; but the Legislature, whose creation it is, may impose such a restriction in its charter. Crocker v. Whitney, 71 N. Y. 161. 401. National B&wlis.— Special deposits. — By habitu- ally receiving special deposits to be kept for mere ac- commodation, national banks incur liability for gross negligence. Chat. Nat. Bank v. Schley, guardian, 58 Ga. 369. 402. National Banks, as Federal agencies, are only ex- empted from State legislation so far as it may impair their efficiency in performing the functions by which they are designed to serve the government of the United States. It is only where a State law incapacitates them from discharging these duties that it becomes unconsti- tutional. Thomas, et al., v. Farmer's Bank of Md., 46 Md. 43. NATIONAL BANKS. 105 403. National 'Banks.— Stockholders. —Ho protect a trus- tee, who is a stockholder in a national bank, from per- sonal liabilitj', under the provisions for such exemp- tion in the act of Congress with regard to national banks, it must appear on the books of the bank that he was such trustee. Davis v. JEssex Baptist Society, 44 Conn. 582. 404. National Banks.— The omission of the officer of a national bank to exact security for moneys lent cannot be made a ground of defence to an action brought by the bank to recover such loan. Union Gold Mining Co. V. Rocky ML Nat. Bank, 2 Colorado, 248. 405. National Banks.— Wio are stockholders. — In or- dering an assessment for the payment of the debts of an insolvent national bank, the stock certificates and stock ledger of the bank must be taken by the comp- troller of the currency, in the absence of fraud or mis- take, as showing who the stockholders were at the time of the failure of the bank. Davis v. Bssex Baptist So- ciety, 44 Conn. 582. 408. National 'Ra.nks.— Suits in State courts. — State courts have jurisdiction of suits brought by national banks, it not having been taken away by Sec. 57, No. 85, of Sts. U. S. 1863-64. First Nat. Bank of Mont- pelierv. Hubbard, et al., 49 Rowell, Vt. 1. 407. National jianxk^— Special deposits . — National banks are not responsible for the safe keeping of special de- posits made according to usage, for the accommoda- tion of depositors, and with the knowledge and acqui- escence of the bank directors, but without pi'olit to the bank — the receiving of such deposits not being author- ized by the National Banking Act, under which such banks are organized. Whitney v. First Nat. Bank of Attlebord', 50 Vt. 388. 408. National 'Rank^.—Stockholders'' assent as se- curity. — The stockholder, in subscribing for or in ac- cepting the stock, assents to becoming security to the creditors for the payment of the debts of the bank. Dacis V. Essex Baptist Society, 44 Conn. 582. 106 NATIONAL BANKS. 409. National Banks.— Taxation. — A statute of Ver- mont is not void, which, for the purpose of taxation, requires, under a penalty for his neglect or refusal, the cashier of each national bank within the State to trans- mit, on or before the fifteenth day of April in each year, to the clerks of the several towns in the State in which any stock or shareholders of such bank shall re- side, a true list of the names "of such stock or share- holders on the books of such bank, together with the amount of money actually paid in on each share on the first day of that month. Waite v. Dowley, 94 U. S. 527. 410. National Banks.— The shares of stock of a na- tional bank in New York should be assessed for tax- ation at their actual value. The ruling in Van Allen v. The Assessors, 3 Wall. 573, as to the invalidity of the act of the Legislature of New York of March 9, 1865, known as the Enabling Act, so far as it provided for the taxation of shares in a national bank, reaffirmed. People V. Commissioners of Taxes and Assessments, 94 U. S. 415. 411. National Banks. — Depositors' Claims. — The claims of depositors in a national bank at the time of its suspension for the amount of their deposits are, when proved to the satisfaction of the comptroller of the currency, placed upon the same footing as if they were reduced to judgments. National Bank of the Com- m,onwealth v. Mechanics' National Bank, 94 U. S. 437. 412. National Bank. —When a national banking asso- ciation is insolvent, the order of the comptroller of the currency, declaring to what extent the individual lia- bility of the stockholders shall be enforced, is conclu- sive. Kennedy v. Gibson, et al., 8 Wall. 498 ; cited and approved. Casey v. Calli, 94 U. S. 673. 413. When his order is to collect an amount equal to the full par value of the stock, the suit by the re- ceiver against the stockholders must be at law, and. that amount will bear interest from the date of the NATIONAL BANKS. 107 order. In sucli a suit the stockholder is estopped from denying the existence or the validity of the corpora- tion. Id. 414. No authority other than that conferred by Con- gress is required to enable a bank existing under a special or a general State law to become a national banking association. The certificate of the comptroller is conclusive as to the completeness of the organization under the act of Congress in a suit against a stock- holder to enforce his liability, or a party upon his con- tract vfith the bank. Id. 415. A plea is bad which, sets up that the comptrol- ler has decided to pay a large amount of claims for ■which the bank is not responsible, and that, aside from those claims, there are means enough to meet the just liabilities of the bank. Id. 416. National Banks.— By an act of Congress with re- gard to National Banks, all stockholders of such banks are liable to assessment for the debts of the banks in case of their insolvency, to the extent of the par value of their stock in addition to the amount invested in such stock ; but persons holding stock as executors, administrators and trustees are not to be personally subject to any liability as stockholders, but such lia- bility is to attach only to the property in their hands. W. died in January, 1871, being at the time a stock- holder of a national bank. His estate was subsequently settled, with a limitation for the presentation of claims, a settlement of the administration account, and a final distribution. The bank failed December, 1871, and a receiver was appointed by the comptroller of the cur rency, and in January, 1877, a long time after the dis- tribution of W.'s estate, the comptroller made an as- sessment upon those who were stockholders at the time of the failure of the bank. Held, in a suit brought by the receiver against W.'s administrator — 1. That the stock was not to be regarded as having been, at the time of the failure of the bank, the property of the administrator, in such a sense as to constitute him the 108 NEGLIGENCE. shareholder within the meaning of the act. 2. That the provision of the act exempting executors, adminis- trators and trustees from personal liability was not in- tended to affect the liability to assessment of estates in process of settlement, but only to prevent a personal liability from running against persons acting in a trust capacity, who had received the stock for the benefit of the trust estate. 3. That the "fact that the assets of the estate of W. had been distributed before a demand was made for the assessment, so that the administrator had nothing in his hands, was no reason why judgment should be rendered against him, de tonis decedentis. 4. That the liability of W.' was in the nature of a con- tract, and as such was a personal liability, for which his estate was holden at his death. Under the Con- necticut statute the settlement of an administration ac- count and the distribution of an estate does not pre- vent the estate being subjected, if actually solvent, to the payment of a debt which accrued after the settle- ment of the estate. Davis, Receiver of Ocean Nation- al Bank of JSf. T. v. Weed, 44 Conn. 569. 417. National Bank.— A defendant sued by a national bank for moneys it loaned him cannot set up as a bar that they exceeded in amount one- tenth part of its capital stock actually paid in. Gold Mining Co. v. National Bank, 96 U. S. 640. NEGLIGENCE. 418. Negligence.— "PF^o must sufer. — If one of two innocent persons must suffer a loss, he who contributed to it, or enabled another to commit a wrong, must bear it. If a party signs and acknowledges a deed, suppos- ing 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. Gavagan v. Bryant, et al., 83 111. 376. NEGOTIABLE NOTES. 109 419. ifesligence.—ContriMiiori/ and Comparative. — The general rule, where parties are guilty of negligence that of the plaintiff must be slight when compared with that of the defendant, and his must be gross, to authorize a recovery against him. A mere preponder- ance of negligence on the part of the defendant is not sufficient. Schmidt, Adnnlx. v. Chicago & Northwestern Ry. Co., et al., 83 111. 405. 420. Negligence.— 5^iT(?e?2- of proof. — Before any re- covery can be had by a party receiving an injury by falling into an excavation in a sidewalk not properly protected, he must show that he had observed due care for his personal safety, and the burden of proving such fact is upon him. Kepperly v. Bamsden, 83 111. 354. 421. Negligence.— IF/io must suffer from. — As be- tween two innocent persons, where one of two innocent parties is to suffer loss, it must fall upon the ilrst one in fault. If, therefore, the equitable owner of a note loses the same, and it is found and iDut upon the mar- ket, and comes into the hands of an innocent and bona fide purchasei', the loss must fall upon the loser of the note for his negligence in not taking proper care of the same. Gavin v. Wiswell, 83 111. 215. NEGOTIABLE NOTES. 422. Negotiable Paper. — Defendant gave to Hevner a negotiable note in payment of a patent which defend- ant alleged was a fraud ; plaintiff being about to dis- ■count the note, defendant told him not to buy it, that Hevner had promised when the sale was made that he would not negotiate it ; that if plaintiff bought it he vrould buy a lawsuit ; no notice was given to plaintiff that the sale was fraudulent. Plaintiff having dis- counted the note. Held, in a suit on it, that these facts were no defence, although Hevner had committed a fraud on defendant in the sale. A parol agreement, although made at the time of making negotiable paper, that the ijayee will not negotiate it and would renew 110 NEGOTIABLE NOTES. it, &c., is admissible to vary the effect of the paper. Heist V. Hart, 73 Penn. 286. 423. Negotiable Instruments. — A negotiable instrument, payable to bearer, or endorsed in blank, produced by a transferee suing to recover its contents, is, vrhen re- ceived in evidence, clothed with the prima facie pre- sumption that he became the holder of it for value at its date, in the usual course of business, without no- tice of anything to impeach his title. Collins v. Gil- bert, 94 U. S. 753. 424. The title of a bona fide holder for value of an. accepted draft, endorsed in blank, is not affected by the fact that the party from whom he received it before its maturity had possession of it for certain purposes and misappropriated it. Id. 425. Negligence may consist in either failing to do what, under the circumstances, a reasonable and pru- dent man would ordinarily have done, or in doing what he would not have done. Railroad Company v. JoneSy 95 U. S. 439. 426. Negotiable Notes. — A bona fide purchaser of ne- gotiable paper for value, before maturity, takes it freed from all infirmities in its origin, unless it is absolutely void, for want of power in the maker to issue it, or its circulation is by law prohibited by reason of the illegal- ity of the consideration. Municipal bonds, payable to bearer, are subject to the same rules as other negotiable paper. Though he may have notice of infirmities in its origin, a purchaser of a municipal bondfrom abonc^ fide holder, who obtained it for value before maturity, takes it as freed from such infirmities as it was in the hands of such holder. A purchaser of negotiable se- curities before their maturity, whatever may have been their original infirmity, can, unless he is personally chargeable with fraud in procuring them, recover against the maker the full amount of them, though he may have paid therefor less than their par value. Cromwell v. County of Sac, 96 U. S. 61. 427. Negotiable Instruments. — Where the title of the NEGOTIABLE NOTES. Ill original holder of negotiable instruments, which, are in- fected with fraud, invalidity, is destroyed, that of every subsequent holder which rests on that founda- tion, and no other, falls with it. Qemmissioners of Marion County Y. OlarJc, 94 IJ- S. 278. 428. Where the first endorser, without notice of any prior equities between the original parties, pur- chases, for value, a negotiable instrument, the second indorsee, who acquires it before it is due, and for value, takes a good title, although he had notice of such equities. Id. Bonds issued, pursuant to legislative authority, by a municipal corporation in aid of a railroad company, are negotiable instruments. Id. 429. Negotiable Notes. — A promissory note in the or- dinary form, signed by a married woman, made paya- ble to the order of her husband, and endorsed and presented for discount by him, is prima facie a nullity ; to give it vitality and effect it must be made to appear by evidence aliunde the instrument, that it was made in her separate business or for the benefit of her sep • arate estate. The fact that she owns separate estate is not alone sufficient to give it validity. Accordingly, Held, in an action upon two such notes against the maker, that a charge to the Jury to the effect that defendant gave the notes to her husband with a view of having them discounted was calculated to convey the impression that she was the principal, and what- ever was done was for her benefit, was an error. Sec- ond Nat. Bank v. Miller, 18 Sickels, N. Y. 634. 430. Non-Negotiable Promissory Note. — Pleading. — Complaint. — Demurrer. — Defence. — When it appears from the complaint that one of the two defendants made the note in suit in favor, but not to the order, of the plaintiff, the payee therein named ; that the other defendant endorsed it, and that it was thereupon de- livered to the plaintiff. Held, that, inasmuch as such an endorsement before delivery imparts the liability of a maker, these averments, taken together, must be 112 NOTARY PUBLIC. deemed equivalent to an allegation that the two de- fendants made the promissory note, and that both are jointly liable as makers thereof. Although not nego- tiable, the instrument is a promissory note, and as such imparts a consideration, though none is expressed. Want of consideration is matter of defence. A question of pleading must be determined accord- ing to the course of practice psevailing in the courts of this State, although the obligation sued upon, i. e., a promissory note, was made in another State. In the absence of proof to the contrary, it will be presumed by the courts of this State that the law of another State in regard to a subject-matter before the court, is the same as the law in this State. Paine v. Noelke, 63 Howard's N. Y. 273 ; also 54 Id. 333. 431. Negotiable Notes.— A promissory note, in form negotiable, is not rendered non -negotiable by being made payable at one or two years after date, nor by the statement on its face that it was given for and se- cured by a lien on real estate. Duncan v. Louismllc, etc., 13 Bush, Ky. 378. 432. Negotiable Instruments.— Note payable one day after date becomes due on day after it was made, and cannot be sued until the day following. If such note was not made on the day of its date, it cannot be sued until the second day after it was in fact made. Ruefle V. Moore, et al., 58 Ga. 94. NOTARY PUBLIC. 433. Notary Public. —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 in- cidents of the' office of notary public, under the law merchant, 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 NOTES. 113 affidavit, within the meaning of the statute. JenTcs v. JenTcs, 47 Texas, 220. 434. Notary— Sureties.— The sureties on the official bond of a notary public are liable for any loss or dam- age 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. y. WiUiam, McG. Jones, 29 La. 82. NOTES. 435. Notes given for too imtch — Not void. — The fact that notes are given for a larger sum than was agreed by the parties to be due for land purchased, does not render them void, but goes to the considera- tion, partially, and there may be a recovery ^ro tanto. McGord V. Crooker, 83 111. 556. 436. Note signed by one as principal. Proof that the contract was that of surety. — When one signs an obligation describing himself as principal, he renounces his right as surety, and parol evidence showing that his agreement was that of surety only, and that his liability was extinguished by reason of an extension granted to the principal without his knowledge, is in- admissible, as varying the terms of his written con- tract. And more especially is this true where he ex- pressly stipulates in the instrument that no extension of time shall aflfect his liability. And it is immaterial in such case that the instrument signed is a note a»nd not a specialty. McMillan v. ParTcell, 64 Mo. 286 ; CSlaremont Bank v. Wood, 10 Vt. 582 ; Picot v. Signi- ago, 22 Mo. 587. 437. Notes.— A promissory note made payable a spec- ified number of months after date, without grace, falls due on the same day of the month as that of its date. Roehner v. Knickerbocker Life Ins. Co., 18 Sickels, N. Y. R. 160. 438. Notes and "RiWs.— Parol evidence to change the mode of payment. — Equity may entertain a bill to rec- 8 114 NOTICE. tify a ■written instrument drafted, by accident, mistake, or fraud, otherwise than according to the agreement of the parties, but if a person deliberately execute a par- ticular instrument, such as a promissory note, intend- ing it to be what it is in reality, parol testimony is in- admissible, either at law or in equity, to change or alter its legal eifect. Bridges v. Robinson, 2 Tenn. Eq. 720. * 439. Notes and Bills.— The statute (Gen. Statutes, 343,. sec. 2) which provides that any promissory note pay- able on demand, which remains unpaid four months from its date, shall be considered overdue and dis- honored, does not affect the rights of the original par- ties to the note, but only those of third parties, as en- dorsers, guarantors or purchasers. Seymour v. Conti- nental Life Ins. Co., 44 Conn. 300. NOTICE. 440. Notice. — An association (not incorporated) de- sired 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 in- dividual 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 circumstances, &c. , of the notes was to be imputed to the firm. McGlurJcen v. Byers, 74 Penn. St. Kepts. 405. 441. Notice to the cashier of a bank lending on trust stocks, that the stock pledged is held in trust, is notice to the bank. Oaston v. Am. Exch. Bank, 2^ N. J. 98. 442. Notice to Sue.— 7b release a surety, under the statute, satisfactory proof must be made, or a notice in writing, by him to the holder of the obligation, to OFi'JER — OVER-DUE COUPONS. 115 from its date, shall be considered over-due and dis- honored, does not affect the rights of the original par- ties to the note, but only those of third parties, as en- dorsers, guarantors or purchasers. Seymour v. Conti- nental Life Ins. Qo., 44 Conn. 300. OFFER. 443. Offer to Endorse.— Defendant not liable thereon unless plaintiffs, within reasonable time, give notice that they had accepted the offer, or had acted on it. Clajiin & Qo. v. Bryant, 58 Ga. 414, OFFICERS. 444. Officers' Sureties.— The illegal cancellation of an official bond will not release the sureties on the bond from their liability for any official delinquency of their principal. A. RocJiezeau, et al. v. Wm. Mc Jones, et al., 29 La. 82. 445. Officers of a Bank.— The cashier of a bank is not, by reason of his official position, presumed to have power to bind it as an accommodation endorser on his individual note, and the payee who fails to prove that the cashier, as such, had authority to make the en- dorsement, cannot recover against the bank. West St. Louis Savings BanJc v. Shawnee County Barik, 95 U. S. 557. OYER-DUE COUPONS. 446. Orer-Due Coupons detached from railroad 'bonds payable to bearer are negotiable instruments. — When a railroad corporation, through its president, borrowed money of its agent, and pledged with him mortgage bonds as security, although the agent could, as between himself and the corporation, only hold the bonds as security for the loan, on payment of which they should be surrendered to the company, yet a per- son in good faith purchasing the bonds from the agent could hold them for at least the amount he paid for 116 OWELTY — PAROL. them. The amount paid for the bonds may be taken into consideration in determining the question of good faith. 447. And where the purchaser from an agent after- wards sells t.he bonds to a hona fide purchaser, the fact that the bonds were then over-due will not pre- clude the last purchaser from folding on to the bonds as indemnity for the amount he paid, although in excess of the sum originally borrowed by the company upon them. 448. 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 ques- tion of a 'bona fide purchaser considered, as also effect of the clause making the principal due, by an omission to pay an installment of interest. Under the circum- stances 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 indemnity for the amount he had paid on their purchase. Todd V. S lielbourne, 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. 449. Qyf^nj.— Manner of paying proceeds of sale. — When owelty is required to equalize partition between two tenants in common, the estate of one being mort- gaged, it should, if to be paid by the unincumbered owner, be paid to the mortgagee of the other and credi- ted on the mortgage note. Ghreen v. Arnold, 11 R. I. 364. PAROL. 450. Parol Evidence is not admissible to vary the terms of a written contract. Serviss v. Stockstill, 30 Ohio, 418. PATENT-EIGHT NOTE — PAETNERSHIP. 117 PATENT-RIGHT KOTE. 451. Patent-Right Notes,— The Michigan Statute (Comp. L., sec. 1565-6) imposing conditions on the transfer of patent-rights by requiring notes given therefor to show it, and making it a misdemeanor to take or trans- fer them otherwise, is unconstitutional, as impairing rights that are regulated and protected by Congress. Fraud is not to be presumed against a patent-right note, but must be proved. Cranson v. Smith, 37 Mich. 309. PARTNERSHIP. 452. Partner surviving of a firm may assign a prom- issory note payable to the late firm, by endorsement, so as to vest the legal title in the assignee, as effectually as if the note had been made payable to him. John- son, et al. V. Berlizheimer, 84 111. 54. 453. Partnership.— A note by a partnership to one of its members for money borrowed, may be enforced at law in the name of an endorsee not a member of the partnership, although the payee be a party defend- ant and the real owner of the note, — no reason appear- ing why a judgment at law would not do legal Justice between the real parties. Walker v. Wait, et al., 50 Vt. 668. 454. V&rtiie:rs\i\T^.— Authority of Partner. — One mem- ber of a partnership cannot bind his co-partner by a promissory note for a partnership demand, made after the dissolution of the partnership. Curry v. White, 61 Cal. 530. 455. Partnership. — 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 ap- peared that the plaintiff took the partnership note of B. and C. in payment. Held, that the declarations of one of the partners, to the effect that A. was a mem- ber of the firm, were admissible in evidence to show 118 PARTNERSHIP. that the plaintiff took the note under a misapprehen- sion, and that, if this were so, the action could be maintained. Tozier v. Grafts, 123 Mass. 480. 456. Partnership. — The holder of a claim against a partnership has a legal right to have his claim estab- lished 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 part- nership and individual claims. Higgins v. Rector, 47 Texas, 361. 457. Partnership Obligations. — 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 partnership, 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 sev- eral obligation. Davis v. Willis, 47 Texas, 154. 458. Partnership.— As by operation of law a partner- ship 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. 459. Partnership.— 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 knowl- edge 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. Oreen, 13 Bush, Ky. 612. 460. Partnership.— 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 PARTNERSHIP. 119 knowledge or consent, by borrowing money and using it to pay debts of the old firm, or by making and de- livering to themselves the notes of the new firm, when -the new was not indebted to the old firm. Elkin v. Oreen, 13 Bush, Ky. 612. 461. Parties in action for breach of contract. — An .action for a breach of contract must be brought by the party with whom the contract was made. Corbett v. SchumacJcer, 83 111. 403. , 462. Partnerships and partners. — The power of one partner to bind his co-partners 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 partnerships, one who seeks to hold "the firm bound upon a contract made by a single mem- Toev, 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 conclusion that the part- ner had been invested by his co-partners with the requisite authority. 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 ascertained, 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. 463. A partner in a non-commercial i^artnership does not generally 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 Tipon its particular facts; and in all such cases, in order to make out the liability of the firm, it ought to be made out affirmatively by the plaintiff that the partner liad power to make the contract in question. 120 PARTNERSHIP. 464.— A partnership engaged in the business of min- ing, &c., is a noncommercial partnership. A partner has nr) implied power to purchase land in the name of the iirm in a partnership formed for the purpose of mining, &c. DicJcinson 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 &G. V. Braswell & Co, 13»Bush, Ky. 67. 465. Partnership.— 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 to- gether, 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 huy- ing 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, &c. Held, that the jury were warranted in finding that a partnership ex- isted between W. and B. Dobson v. Chambers, 78 N. C. 334. 466. Partnership.— iia6?7eYy of a firm. — Where a member of a firm of real estate brokers receives money with whichto 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, 83 111. 199. 467. Partnership.— 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 between A. and B. Held, that if this agreement could be construed as a partner- ship at all, it was one for disposing of the houses and PAKTNEESHIP. 121 land, not for building them. Bishee v. Taft, 11 R. I. 307. 468. Partnersliip.— Where one hiember 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 a suit upon the note by the payee, cannot set off against such note an account due from the plaintiff to the firm at its dissolution. Wig- gin V. Ooodwin, 63 Me. 389 ; also, Lesure v. Norris, 11 Cush. 328. 469. V&YtxL^Yshi^.— Individual debts. — Levy on part- ner ship property. — An execution creditor of an individ- ual member of a co-partnership, having caused property of such co-partnership to be levied on by an officer, to satisfy his debt, was, together with such officer, on ap- plication of another partner, temporarily enjoined from making sale until the partnership debts had been paid, and directed to deliver such property to a re- ceiver appointed in such proceedings to settle the part- nership affairs. On appeail 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 in- stituted an action against such co-partner 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 competent evidence against, and bound him. Donellan v. Hardy, 57 Ind. 393. 470. By the levy of his execution upon partnership property, the creditor of an individual partner a(;quires 122 PARTNERSHIP. no interest whatever in the property itself, but only a lien for the share of such partner, individually, in the surplus remaining after all partnership debts and prior liens shall have been paid. Id. 471. Partnership.— An action at law cannot be main- tained by one partner against another, involving the state of the partnership accounts. But one partner may sue another at law on a pl-omise to pay a balance which has been ascertained and agreed upon. And a fortiori may an action at law be maintained on ne- gotiable promissory notes given by one partner to an- other for the amount of the balance ascertained upon dissolution. And it would not be competent for the defendant to defeat such action by showing that there had been no final settlement of partnership accounts. McSherry v. Brooks and, Barton, Trustees, 46 Md. 103. 472. Partnership.— /wcommg' partner — Liability. — It is not necessary that an incoming partner should do something, in order to escape liability for the previous debts and obligations of his co-partners, but on the contrary it is necessary that he should do something in order to maTce himself liable for such debts or obli- gations. Gauss V. Hdbbs, 18 Kansas, 504. 473. Partnership.- One partner, without the consent, expressed or implied, of his co-partner, 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 custom, and such attempted application with knowl- edge of the facts by such debtor, will not defeat an action at law upon a claim, by the firm or its assignee. Yiles V. Bangs, 36 Wis. 131 ; also, Oobyhausen v. Judd, et al., 43 Wis. 213. 474. Partnership.— Partners have no implied authority to confess judgment for each other. An infant cannot in his own name confess judgment. An infant's as- signment 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 PAETNEESHIP. 123 firm is void aud will not support an attachment as against a previous assignee of the goods attached. Soper V. Fry, 37 Mich. 236. 475. Partnership.— 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, with- out any division of Foresman's interest. Foresman paid debts of the first firm, the second firm afterwards assigned for the benefit of creditors. Held, that Fores- man was entitled to come in as a creditor. The distri- bution 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 before 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. 476. Partnership.— Contracts made by one partner on behalf of the firm, in the business of the firm, are bind- ing upon th'e firm. Wilson v. Elliott, 57 Hall, N. H. 316. 477. Partnership.— It is a violation of good faith for any partner to stipulate clandestinely with third per- sons, for any private and selfish advantage and benefit to himself exclusive of the partnership ; for all the partnership property and partnership contracts should be managed for the equal benefit of all partners, ac- cording to the respective interests and shares therein. If, therefore, any one partner should so stipulate clan- destinely for any private advantage or benefit of him- self, to the disadvantage, or in fraud of his partners, he will in equity be compelled to divide such gains with them. McMahon, et al. v. McCleman, 10 West Va. 419. 124 PARTNERSHIP. 478. Partnership.— When general Reputation insuf- ftcientto prove Partner sMp. — What is not Reputa- tion. — Although the most conclusive proof is not re- quired where defendants are sued as partners, there mast be some proof of partnership. Where the only proof of partnership was the evidence of the plaintiff who swore they were partners because "she knew it in business," "she had heard so," " everybody 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 evi- dence of defendant's co-partnership, and no proper proof of reputation to that effect, and the complaint should be dismissed for this reason. QulTce v. XJhligy 55 Howard N. Y. 434. 479. Partnership.— 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, and which the creditor receives in good faith and without notice that they are the goods of the partnership, is vg,lid against the partnership and its creditors. Locke v. Lewis, 124 Mass. 1. 480. Partnership. — A community of profit and loss is the test of a partnership, even where the dispute is between the partners. Parties casually met together, who make an agreement to buy what goods they can, either jointly or separately, and on reaching the home market to sell on joint account, and divide the pro- ceeds among themselves pro rata, according to the amount each should put in the venture, become part- ners as to such venture. Such a partnership is a trad- ing or commercial partnership, 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 vsdll be lia- ble. Misappropriation of the funds by the partner PAYABLE AND PAYMENT. 125 borrowing the money does not relieve the firm from liability. Howze v. Patterson, 53 Ala. 205. 481. Partner and Partnership.— A debtor, being a mem- ber of an insolvent partnership, conveyed his separat»^ estate in satisfaction of a debt due to a separate credi- tor. The real estate exceeded in value, to a consider- able amoiant, the debt for the satisfaction of which it was conveyed. Held, that the other creditors had an interest in the excess, and 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 sepa- rate property of the co-partner, the excess of value was bound, first, for his separate debts, and only after sat- isf jdng these was it applicable to the debts of the partnership. Bailey, et al. v. Kennedy, et al. 2 Del. 12. 482. Partnership property.— An attachment of part- nership property for a partnership debt will prevail over a prior attachment of the same property for a sep- arate debt of one of the partners, or over a mortgage of one of the partners to secure his individual in- debtedness. Fargo & Co. v. Ames, et ux., 45 Iowa, 491. PAYABLE AND PAYMENT. 483. Payable in Bank.— When a promissory note is made in this State, payable in a bank named but not located, it will be presumed, unless the contrary ap- pear, that the bank is located in this State. Hender- son V. AcJcelmire, 59 Ind. 540 ; also, Burroughs v. Wil- son, 59 Ind. 536. 484. Payment.— 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 JSr. Y. 171. 485. Payment.— Money voluntarily paid in discharge of a claim made upon the payor, or to buy off from 126 PAYABLE AND PAYMENT. and quit a criminal prosecution to which he is exposed, cannot be recovered. Comstock v. Tupper, 50 Vt. 596. 486. Payment. — The payment to the sheriff of the re- demption money, under foreclosure, in United States treasury notes, and national bank notes, which were received without objection. Held, sufficient. Nopson V. Eorton, 20 Minn. 268. 487. Payments— WAew there* are several debts. — 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 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 after- wards. Lewis V. Pease, 85 111. 31. 488. Payment.— Where a mortgagor of land is the ex- ecutor of the will of the mortgagee, and charges him- self with the amount of the mortgage debt, as assets. in his hands as executor, this operates as a pay- ment of the debt and a discharge of the mortgage. Martin v. Smith, 124 Mass. 111. 489. Payment.— A creditor who holds notes or other obligations for the payment 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. PAYABLE AND PAYMENT. 127 the latter to show that the loss upon the collaterals was caused by the creditor's negligence. Charter Oak Life Ins. Go. v. Smitli, et at, 43 Wis. 329. 490. Fayment.— A stipulation in a promissory note that no credit shall be allowed on it unless endorsed upon it by the payers, will not prevent the allowance in an action upon the note, of any authorized payment actually made, but not endorsed. Kasson, et al. v. JSToUner, 43 Wis. 646. 491. Payment.— Where the draft of a third party is received by a creditor from his debtor for a pre-exist- ing 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. 492. Payment.— Taking a note from the debtor or a note of a third party, is no discharge of the debt, un- less it is expressly agreed between the creditor and debtor that it is in absolute payment thereof. Dun- lap's Exr. V. Shanklin, 10 West Virginia, 662. 493. Payment.— 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, al- though the check is not presented and paid at the bank on which it is drawn until the next day. Get- chell V. Chase, 124 Mass. 366. 494. Payments.— Partial payments are applied when their sum equals or exceeds the interest, not before. Houston V. GrutcJier, 31 Miss. 51 ; overruled in Brooks V. RoMnson, 54 Miss. 272. 495. Payment.— When partial payments are made on a debt past due (Kev. Code, sec. 1830), they should be applied first to the extinguishment of the accrued interest, and only the residue be applied to the prin- cipal. Coleman v. Smith, 55 Ala. 369. 128 PAYABLE AND PAYMENT. 496. Payment.— In an action upon a promissory note money paid by the maker after the date of the note and not endorsed thereon, will not be allowed as a credit, if there is nothing in the record to show it was paid as such. Qraig v. Young, 2 Colorado, 112. 497. Tajments.— Voluntari/. — A married woman own- ing 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 knowing 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. 498. Y&jtti^ni.— Option to pay in money or property. — ^Where the vendee of real estate contracts to pay the purchase-money in cash or by the delivery of cotton of a specified class at a designated place, as the pay- ments 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 con- duct of the vendor. Brodie & King v. Watkins and wife, 31 Ark. 319. 499. Fayment.—Extension. — 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. 500. Payments by Mistake.— Money paid under a mu- tual mistake for that which has no legal existence or validity, may be recovered back as paid without con- sideration, where the vendor is responsible for the mistake, or represents the person so responsible. So held, of the dona 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, 37 Mich. 120. PAYABLE AND PAYMENT. 129 501. Ta.jment.— Tender. — Any third person, who de- mands no sabrogatLon, 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. Siaie ex rel: John Klein ■& Oo. V. £Jd. Pilsbury, AdmW of Finance., cfec, 29 La. 787. 602. Payment. — By the law of this commonwealth, the giving of the negotiable promissory note of a third person is evidence of payment of a pre-existing 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 con- trary, the rule will be presumed to be the same in Maine. Ely v. James., 123 Mass. 36. 503. Payment, Proof of. — In an action brought for the purpose of establishing the payment of a promis- sory note between parties not traders. Held., reversing 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. & Mnlay, et al., 8 L. C. J. 139, and 10 L. C. R. 255, Q. :B. 1860, 1233, sec. 1, and 2341 C. C. 504. Payment, What amounts to a. — 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 dis- charge 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 ac- tion existed in his favor on the policies, to make his defence availing. Brunswick v. BirTcenhend, 83 111. 413. 505. Payment, made Voluntarily. — Recovery. — If a party with full knowledge of all the facts in the case voluntarily pays money in satisfaction or discharge of a demand unjustly made upon him, he cannot after- ward allege such payment to have been made by com- 9 130 PAYABLE AND PAYMENT. pulsion and recover back the money. Murphy, NeaZ & Co., et al. V. CreigMon, 45 Iowa, 179. 506. Paymentof Mortgage.— 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 fore- closure 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 executed, upon the same property by a grantee of the firm. Warren v. Hoyzlett, 45 Iowa, 235. 507. 'Pa.jment.— Limitations. — An endorsement of a partial payment on the back of a note, when the fact- of the payment is controverted by the payor or his- representative, is not evidence sufficient to suspend the running of the statute of limitations. The burden of proving that the payment endorsed on the note was- actually made, and at the time it purports to have been made in the endorsement, when the alleged pay- ment is controverted, 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 pay- ment. Frazer''s AdraWs v. Frazer & Oo., 13 Bush, Ky. 397. 508. Payment.— 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 in- stallment, each of them being considered as a separate debt. Clarihue v. Morris, 2 Kev. de Leg., 30 K. B. 1820. 509. Payment on conditional sale of goods. — 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 creditor, does not give the seller a lien on the goods, after their delivery, or on the avails of their sale, that can be specifically PERSONAL — PLEDGE. 131 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 v. Hopkins, 30 Ohio, 502. 510. Ya^m^vki,.— Disposition of. — 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 what ajiplication is to be made of the payment, the creditor, if he re- tains the money, is bound to appropriate 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 agreement between the parties, giving the creditor a right to appropriate the payment other- wise than directed by the debtor, though mere equit- able considerations may control, where the payment is made without designating its application. Stewart V. HopMns, 30 Ohio, 502. PERSONAL. 511. Personal covenants in the Tiusband's mortgage do not bind the wife, although she joined in the mort- gage of her husband's property. A wife's covenant in her husband' s deed is a mere nullity. KitcJiell v. Mudgett, et al., 87 Mich. 81. 512. Personal Liability. — Wife not liable for defi- ciencies on foreclosure of a mortgage from her husband and herself. Howe, et al. v. Lemon, et ux., 37 Mich. 164. PLEDGE. 513. Pledge.— If a certificate of stock in a corpora- tion, pledged as collateral security, is transferred by the pledgee to a creditor of his own, the pledgor may treat this as a conversion, and the fact that the pledgee had a greater number of shares standing to his credit 132 PLEDGE. on the books of the corporation is immaterial. Fay v. Qray, 124 Mass. 500. 514. Pledges.— A. borrowed of a bank money on call, and deposited with it as collateral security certain min- ing 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 proceeds ap- plied to the payment of the loan. A., who was ad- vised 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 increased in value, A. notified the bank of his desire and purpose to redeem them, and subsequently filed his bill against it, asserting his right so to redeem, and praying for general relief. Held, that he is enti- tled- to no relief. Hoyward v. National Bank, 96 U. S. 611. 515. Pledge.— The subsequent bankruptcy of the pledgor of a negotiable instrument does not deprive the pledgees of their right to dispose of it upon his de- fault. Jerome v. McCarter, 94 U. S. 734. 516. Pledge.— 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 applying 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. Exch. Bank, 29 JST. J. 98. 517. Pledge.— To constitute a pledge, there must be a delivery and retention by the pledgee of the thing pledged. If a party receives a pledge as collateral se- PLEDGE. 133 curity, and in course, or at any time after he receives it, suffers it to go back into the possession of the per- son 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. 518. Pledge.— iSiaZe by the Pledgee. — A pledgee of a chattel may sell his interest in the same, and the owner cannot recover the same of the purchaser without tend- ering 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 innocent 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. Bradley v. Parks, et at., 83 111. 169. 519. Where the pledgor of a chattel, after tender- ing 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 another he cannot recover the same in replevin, without tend- ering the sum due, to such purchaser. Id. 520. Pledge.— Possession by the pledgee is essential to a pledge ; actual possession when practicable ; con- structive possession when actual possession is imprac- ticable. Seymour v. Colburn, 43 Wis. 67. 521. Pledge, What constitutes a. — A pledge is the lien created by the delivery of personal property by the owner to another, upon an expressed or implied agreement that it shall be retained as a security ior an existing or future debt. To create a pledge, the pledgee must have the possession and control of the property. Corhett v. Underwood, 83 111. 324. 522. Pledge.— J. A. H. borrowed $5,000 from the Cit- izens' 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, he gave to the bank his individual check on himself for 134 PLEDGE. the amoant so borrowed, and the bank delivered to him the collaterals before deposited. Shortly after- ward 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^ * 623. 1st. If a bank or other party take a negotiable bill or note before maturity, for consideration and with- out mala fides, such party acquires a good title, not- withstanding there may have been negligence ; and gross negligence, while it may be evidence of mala fides, will not alone be sufficient to defeat the plaintiff's title. 524. 2nd. 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. 525. 3rd. The plaintiff is not bound to make in- quiry, and mere negligence, however gross, not amount- ing to wilful and fraudulent blindness, while it would be evidence of mala fides, is not the same thing. 4th. It makes no difference that the bill or note is only pledged as collateral security, and is not abso- lutely and unconditionally transferred. 526. 5th. If the bank knew that the note was not the prope?:ty 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. 527. 6th. It is a well established principle that pos- session is necessary to perfect a title by pledge, and it is equally well settled that the delivery back of the pos- session 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 PLEDGE. 135 laailee or agent. Hooper v. Citizens' National Bank, 47 Md. 88. 528. Pledge.— Possession is of the essence of a pledge ; and, without it, no privilege can exist as against third persons. This doctrine is in accordance with both the common and the civil law, the Code Napoleon (art. 2076) and the civil code of Louisiana (art. 3162). Casey v. Cavaroc, 96 U. S. S. Ct. 467. 529. The thing pledged may be in the temporary- possession of the pledgor as special bailer, without de- feating the legal possession of the pledgee ; but where it has never been out of the pledgor' s actual possession and has always been subject to his disposal by way of collection, sale, substitution, or exchange, no pledge or privilege exists as against third persons. Id. 530. Where it was agreed that a bank should de- posit 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 hank 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. Id. 531. The ruling in Casey v. Cavaroc {supra, 1" 467), as to what constitutes a valid pledge of securities, so far as third persons are concerned, applies to this case. Casey v. National Bank, 96 U. S. S. Ct. 492. 532. Fleise.—Uoidence. — Defendant received money of plaintiflf to insure him for becoming bail for another at plaintiff's request, and gave plaintiff his account- able receipt therefor. Defendant subsequently loaned the money and received interest for its use. Held, that he was liable for the interest thus received, and parol evidence was admissible to show the facts that created his liability. Gilson v. Martin, 49 Eowell, Yt. 474. 533. Pledge. — Where an accommodation bill has been pledged for less than its face, and the pledgee transfers 136 POSSESSION. it and receives the full value, and the accomnaodation endorser is compelled to pay the bill, he cannot recover the surplus from the pledgee ; such action can only be maintained by the pledgor. Gregory v. Burrall, 2 Wend. 391. 534. Pledged Property. — A pledge ceases to be opera- tive when its object is effected, and the v^hole bene- ficial interest in the security pledged then becomes absolute in the equitable owner. Ward v. Ward, 37 Mich. 253. POSSESSION. 535. Possession by a man or his tenant is notice of the title, equitable as well as legal, under which he claims the property. Wanner v. Sisson, 29 N. J. 141. 536. Possession.— No length of constructive possession will ripen a defective title to land into a good one ; the possession must be actual and continuous. 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 him- self, his servants or tenants, and by him or them con- tinued 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 intervals, for the purpose at one time of cutting timber, at another of making bricks, &c. Held, that the plaintiff was not entitled to recover. Williams v. Wallace, 78 N. 0. 354. 537. Possession of Land.— Where A. enters into pos- session of land, the property of B.'s wife, under a deed from B. alone, the possession of A. is in law the pos- session of the wife, and enures to her benefit. Davis V. M. Arthur, 78 N. C. 357. 538. Possession of a Note, Bond or Bill, unattended by circumstances which, in a reasonable mind, ought to excite suspicion or distrust, 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 POWER — PRESUMPTIONS . 1 37 until his purchase is assailed by one who can establish a legal title to the instrument. Garvin v. Wiswell, 83 ni. 215. POWEK. 539. Power.— A power committed to two or more per- sons, unless it otherwise appear from the instrument by which it is delegated, is properly executed only by the joint act of all who have accepted the trust. Oid- dings v. Butler, 47 Texas, 535. 540. Power of Attorney. — 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. PREFERENCE. 541. Preferring Creditor.— 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. Bastes, 18 Kansas, 505. 542. Preferred Creditors.— 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. PRESUMPTION'S. 543. Presumptions.— 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. McLear & Kendall v. Succession of HnnsicJcer. 29 La. o.S9. 138 PEINCIPAL AND AGENT. PRINCIPAL AND AGENT. 544. Principal and ks^nX.— Fraudulent misrepresen- tations hy an agent. — Liability of principal for moneys wrongfully received by his agent. — S. being employed by the respondent to carry on his business, credited the respondent in an account with the appel- lants with the sum of 5,800 taels, which he falsely rep- resented to have been advanced 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 hav- ing 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 respondent was liable to the appellants in the said sum with inter- est from date of receipt by S., Held, that the proceeds of the bill having been received as aforesaid by S., act- ing throughout within the scope of his authority, be- longed to the respondent, and that he having thus been paid 5,800 taels without consideration, the appellants were entitled to recover back the same. BarwicJc v. T7ie English Joint SiocJc Bank, Law Rep. 2 Ex. 259, and MacJcay v. TTie Commercial BanTc of New Bruns- wick, Law Rep. 5 P. C. 412 ; approved. Swive v. Fran- cis, 41 Canada Law Rep. 3 P. C. 106. 545. Principal and Agent. — Where a secret gratuity is given to an agent with the intention 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 behalf of his principal, is actually in- fluenced by the gratuity in assenting to stipulations prejudicial to the interest of his principal, although the gratuity was not given directly with relation to such particular contract, the transaction is fraudulent as against the principal, and the contract is void at his option. Smith v. Sorby, 3 App. Cases, Eng. (41-42 Vic.) 552. PRINCIPAL AND SURETY. 139 546. Principal and Agent. — One piirchasing 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 act- ing as agent ; it is not suflBlcient to clear the agent from liability that the seller has the means of ascertaining the name of the principal ; he must have actual knowl- edge. Cohb V. Knapp, 71 N. Y. 348. 547. Also held, that a subsequent disclosure of the principals by defendant, and the commencement of an action against them by plaintiff 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 discharge. Id. 548. Principal and Agent. — Where agents, without ex- press an thority, assume to act for their principals, the latter will be bound, if, with knowledge of such as- sumptions, 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. Co-opera- tive Association v. McConnico, 53 Miss. 233. 549. Principal and Agent. — Ratification by a principal of his agent' s acts is only binding when made on full knowledge of the facts as they actually exist, not merely as the agent believed them to exist. Bank of Owensbord v. Western BanTc, 13 Bush, Ky. 526. PRINCIPAL AND SURETY. 550. Principal and ^viwiy.— Delivery Bond. — 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 140 PRINCIPAL AND SURETY. former, recover as for money paid to Ms use. Collins V. Paris, 57 Ind. 151. 551. Principal and Surety.— A bond executed in hla7lk 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 oblig- ors. Such authority must be proved affirmatively, to sustain the bond. Hastings, et al. v. Clendaniel, et al., 2 Del. 165. 552. Principal and Surety. — Release of Surety by GasTiier of a Bank. — A cashier of a bank, by virtue of his office, is not authorized to release a surety upon a note or bill belonging to the bank without payment. Merchants' Bank v. Rudolf, 5 Web. 527. 653. 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, are not binding upon the bank. lb. 554. 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 state- ment, 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. lb. 555. 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 pre- sumed to have. lb. PKINCIPAL AND SURETY. 141 556. Principal and Surety.— A release of the principal debtor, against whom, with the surety, a joint judg- ment has been obtained, operates as a release of the surety. Anthony v. Gapel, 53 Miss. SSO. 557. Principal and Surety.— 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 forbear- ance, but in the absence of such a contract, payment of the stipulated interest will not discharge the surety, even though, because of such payment, the creditor continues his indulgence to the debtor. The agreement to forbear for a definite period, in consideration of the payment of usurious interest, releases the non-consent- ing surety. Brown v. PropMt, 53 Miss. 649. 558. Principal and Surety. —In an action upon an ad- ministration bond, under R. S., ch. 72, sec. 9, a judg- ment against the administrator, in favor of the creditor 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 authority had be- come extinguished. When the plaintiff relies upon such judgriient, 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 au- thority 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. 559. Principal and Surety.— 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 actu- ally signed on Sunday. Hall, et al. v. Parker, et al., 37 Mich. 590. 142 PRIVILEGE — PEOFITS. 560. Principal and Surety.—S'iC^ereOTore of notes.— The execution of a deed of trust by a principal debtor, whereby property not subject to execution was made liable for its payment, is a good consideration for a promise to extend the time for payment of the note, and such an agreement will discharge the surety. Sample, et al. v. Atkinson, et al., 64 Mo. 504 ; Smarr V. Schnitter, 38 Mo. 478. PRIVILEGE. 561. PriTilege.— 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 prop- erty incumbered by the youngest mortgage. The ven- dor's privilege is only operative as to third persons from the moment of its registry. The vendor's privi- lege will not take rank over a mortgage recorded be- fore its own registry, unless its own registry was- made on the day of the sale. To maintain his privi- lege on property sold by him, as to third persons, the vendor must record the sale. 562. Seizure of property under the execution of a valid judgment, gives a lien on the property, superior to any privilege recorded against it subsequent to the seizure. 0' Hara v. Mrs. E. Booth and Gonnell, 2^ La. 817. PROFITS. 563. TrofLts.— Damages. — Probable profits are not a proper basis upon which to estimate damages, and there- fore, under the testimony as reported in this case, nom- inal damages only can be recovered. Winslow v. Lane, 63 Me. 161. 564. Profits.— 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. PEOMISE — PROMISSORY NOTES. 143 PROMISE. 565. Promise.— The holders of a note demanded pay- ment from the endorser, 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. Piatt, 37 Mich. 132. 566. Promise. — As long as the creditor can maintain an action on the original promise, a new promise, with- out additional consideration, will not support an ac- tion. Ogden, &c. v. Hedd, 13 Bush, Ky. 581. 567. Promise Made to Debtor. — 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 writ- ing. Centre v. McQuesten, 18 Kansas, 476. PROMISSORY NOTES. 568. Promissory 'Hott:.— Illegality of note made in for- eign State. — To a .declaration on a promissory note, a defence that the note was made in a foreign State, upon a consideration which was void under a law of that State, should be specially pleaded, and it cannot be re- ceived under the general issue. Held, that the issue was immaterial. Roop v. DelaTiaye, 2 Colorado, 307. 569. Promissory Note.— T^^7Z not always discharge liability. — The plaintiffs took the individual note of B., on account of the goods, but it was not given or taken as payment of the account. Held, that this did not discharge the liability of the corporation. B. having gone into bankruptcy, the plaintiffs presented the note against his estate, and received a dividend upon it. Held, they might show that they did this under the advice of legal counsel, and upon an opinion given that it would not prejudice their claim against 144 PROMISSOKT NOTES. the corporation. Northford Ritel Co. v. Blackman M'f'g Co., U Conn. 183. 310. Promissory 'SoiBs.— Payment. — Where a promis- sory note for dollars, made in G-eorgia, in January, 1863, is shown to have been solvable in Confederate treasury notes, the sum thereby payable in actual money must be ascertained by the value in coin or legal currency of the United States, at the time when and the place where the note was made, of such treas- ury notes, equal in nominal amount to the number of dollars specified. Stewart v. Salamon, 94 U. S. 434. 571. Where a payment is endorsed in the same monetary terms which are used in the note itself, the presumption is that it was intended to be credited in the same circulating medium. If the parties intended otherwise, some proof on the subject should be pre- sented. Id. 572. Accordingly, where a promissory note for dol- lars, shown to be solvable, at the time it was made, in Confederate treasury notes, had a receipt for a speci- fied number of dollars endorsed upon it, it was held that, in the absence of proof, the principal designated on the face of the note was reduced only by the amount specified in the receipt. Id. 573. Promissory 'Sot^.— Written contract. — Where, at the time of making .and endorsing a promissory note, a written contract in relation thereto is entered into by the parties, parol testimony varying or contradicting its terms is not admissible. Breton v. Spofford, 95 U. S. 474. 574. Promissory Notes.— In the absence of proof to show when promissory notes were transferred by the payee, the law presumes that they were, when under- due, taken in good faith by the transferee, without notice of any infirmity attaching to them, and he is entitled to the benefit of the deed of trust given to se- cure them. New Orleans Canal and BanJcing Co. v. Montgomery, 95 U. S. 16. PBOMISSOEY NOTES. 145 675. Promissory Note.— In a suit upon a promissory note, the court below charged the jury that if the de- fendant, without making any statement of his inten- tion in so doing, wrote his name on the back of the note before its delivery to the payee, he is presumed to have done so as the surety of the maker, for his ac- commodation, and to give him credit with the payee, and that, if such presumption is not rebutted by the evidence he is liable on the note as maker. Held, that the charge was not erroneous. Good v. Martin, 95 U. S. 90. 576. Promissory Note.— In action by a savings bank on a promissory note, against B., as second endorser, it appeared that the note, which purported on its face to be secured by a mortgage of real estate, was payable to A., or order; that A. borrowed money of B., en- dorsed the note to B.'s order, and delivered it to him with an assignment of the mortgage and note, as col- lateral security ; that afterwards A. paid B. the money borrowed, and B. wrote his name on the back of the note under the name of A. and delivered it to him, and also executed to him an assignment of the mort- gage and note ; that A. thereupon, and before the ma- turity of the note, delivered it to the plaintiff for a valuable consideration, and executed to it an assign- ment, in which A. was described as mortgagee named in, and assignee of, the mortgage ; that A. was then a trustee of the plaintiff bank and one of its conveyan- cers, but took no part in the management ; that the treasurer of the bank did not notice the signature of B. when he took the note and relied on the mortgage alone as security. B. testified that he did not intend to endorse the note, but only to assign it to A. Demand was made on the maker of the note and due notice given to B. Held, that, on these facts, the action might be maintained ; and that no fact appeared which would warrant a jury in finding for the defen- dant. West Boston. Savings BanJc v. Thompson, 124 Mass. 506. . 10 146 PEOMISSOBT NOTES. 577. Promissory Note.— In an action by the payee on a promissory note, signed on the back thereof, by the defendant before delivery, oral evidence is inadmissible to show that the payee agreed to treat him as an en- dorser, and not as an original promisor. Allen v. Brown, 124 Mass. 77. 578. Promissory Note.— A person, not the payee, who before the St. of 1874, c. 404, wrote his name upon the back of a negotiable promissory note at its inception, and before its delivery, is liable as an original prom- isor ; and parol evidence is inadmissible to show that he wrote his name upon the note, not with the in- tention of adding his personal responsibility to its se- curity, but merely in approval of it as the president of a company ; or that the treasurer issued the note in violation of a by-law of the company ; the plaintiff, the payee of the note, having no knowledge of the facts. Oilson v. Stevens Machine Co., 124 Mass. 546. 579. Promissory 'Soie.— Conditional. — If a promissory note is made payable on condition that a proceeding pending in the courts is decided in favor of the payee, and the proceeding is decided against him, the note cannot be enforced. Frisbie v. Moore, 51 Cal. 516. 580. VromissoYj'SoU.— Interest payable quarterly. — A note on which the interest is payable quarterly at the legal rate, is not usurious. Mowry v. STiumway, 44 Conn. 493 ; also, Bridgeport v. Housatonic M. M, Co., 15 Conn. 503 ; and Rose v. Bridgeport, 17 Conn. 247 ; and BrooTcs v. Holland, 21 Conn. 388! 581. Promissory Notes. — A rule which would require- the maker of a note to act after its maturity, and be- fore payment, with reference to the equitable rights- attaching to it in the hands of every one who may have had it by assignment, would be destructive of the negotiability of such instruments. Long v. Walker y 47 Texas, 173. 582. Promissory Note.— Payment of a note made by partners is received by an agent in Confederate cur- rency, upon condition that if the principal refuses to PEOMISSORY NOTES. 147 receive it, it is to be returned ; and a receipt is endorsed on the note and delivered to one of the partners. The principal declines to receive it, and the agent returns the currency to another partner, who gives the part- nership promise to pay the amount of the note in the new issue of Confederate notes, which the principal was willing to receive, and this is received by the prin- cipal. Held, 1. The delivery of this second promise and its reception by the principal is not a discharge of the note, unless it was so intended and agreed by the principal ; and this must be clearly shown by the makers of the note. Lewis, et al. v. DamssorC s ExWy 29 Grattan (Va.) 216. 583. Promissory Note.— The delivery of the note by the agent to one of the partners, and its cancellation! and possession by him, will not prevent an action upon it by the principal. Id. 584. Promissory Note.— In an action by a bank against an endorser of negotiable notes, which were discon- tinued in Alexandria, and fell due during the war, when the endorser was within the Confederate lines, to prove notice of protest to the endorser within a rea- sonable time after the war ceased, the plaintifE offered in evidence a resolution of the stockholders, adopted at a meeting held on the 18th of July, 1865, at which the endorser was present at a previous period of the meet- ing, though it did not appear he was present M^hen the resolution was adopted, by which those notes and others paid by the maker at a branch of the plaintiff's bank within the Confederate lines, are declared still to be due to the bank. Held, 1. There being no proof that the endorser had any knowledge of the resolu- tion, it was not due notice to him of the dishonor of the notes. 2. The knowledge of non-payment of a protested note is not sufficient to bind the endorser. He must have notice that he is looked to for payment. 3. The resolution having been adopted July 18th, 1865, at least two inonths after communication had been 148 PBOMISSOET NOTES. opened between the bank and the endorser, it was not in time, if it had been sufficient as a notice. Bank of Old Dominion v. McVeigh, 29 Grattan (Va.) 546. 585. Promissory Note.— i)e5C7■^■p^^■o personce. — Execu- tor, when personally liable on.— Reimbursement out of estate. — In suit on the following note, to wit. : " Three months from date promise to pay to order of A. and B. fifteen dollars, etc.', etc., with interest at ten per cent, per annum, and if interest be not paid annually to become as principal," etc. (Signed) "P. H. Ammerman, executor of last will of James John- son, deceased," it was held that as the instrument con- tained no words showing an intention to charge the ■estate, the terms "executor," etc., should be treated merely as descriptio personse ; that the fact of pay- ment to be made at a future day, with the interest named, might of itself be sufficient to show a personal undertaking of the executor ; that the note of itself imported a consideration, and that it devolved on the maker and competent for him, if he designed to set up that defence, to show that as his individual contract it was without consideration, and that the payee agreed to look only on the estate. And in such case, -where the consideration of the note accrned after the death of the testator, the administrator will in the first instance be liable de bonis propriis, but lie may reimburse himself out of the assets of the •deceased. An administrator can maintain an action in his own name on a note made payable to him as ad- ministrator or executor, the official words being treated as m.ere surplusage or as descriptio personse. mttenhouse v. Ammerman, 64: Mo. 197. 586. Promissory Notes.— An instrument in the form of :a promissory note, beginning, "We as trustees, but not individually, promise to pay," and signed "A., B. and C, trustees," purported on its face to be secured "by mortgage of real estate. A., B. and C. were trus- tees of a land association, and purchased of the promi- see a parcel of land, the deed of which ran to them as PEOMISSOEY NOTES. 149 trustees of the association, and set forth their powers. They mortgaged the land to the grantor, and gave the above instrument, secured by the mortgage, in part payment of the purchase money. Held, in an action against the makers of the instrument, by an endorsee, who took it after maturity, that they were not person- ally liable thereon. Shoe & Leather National Banlc V. Dix, 123 Mass. 148. 587. Promissory Notes.— It is a good consideration for a promissory note that the promisor gave it at the re- quest and for the benefit of his son, who was in the employ of the promisee, to be applied by the latter to- wards the payment of a defalcation of the son, the note being so credited to the son on the books of the promisee. Popple v. Day, 123 Mass. 520. 588. Promissory Note.— It is a good consideration for a promissory note given by the promisor, who was an assignee of a bankrupt, towards the payment of moneys received and misused by him, that the promi- see, who was his co-assignee, refrained from pressing proceedings against him instituted to protect the inter- ests of the creditors. Abbott v. Fisher, 124 Mass. 414. 589. Promissory Notes. — Pleading. — In assumpsit on a promissory note by the bearer against the maker, it appeared that it was drawn payable to the wardens and vestry of a certain church, or bearer, and there was evidence tending to show that after it was executed and delivered to the corporation, and before it passed into plaintiff's possession, the corporation became in fact extinct by the removal of its officers and members. It did not appear that the corporation ever parted with the title to the note, and plaintiff showed no title be- yond mere possession. Held, that if the corporation did become extinct, the defendant was not thereby discharged from his liability on the note, but that title thereto vested somewhere, and that plaintiif, having, so far as it appeared, lawful possession of the note, might maintain an action thereon in his own name, and 150 PEOMISSORT NOTES. recover for the benefit of the holder of the legal title. Hyde v. Lawrence^ 49 Rowell, Yt. 361. 590. Promissory Note.— A person who receives two promissory notes upon an agreement to release a de- mand upon their payment at maturity, is not debarred from his original cause of action, by having one note discounted and taking it up when protested for non- payment, and by prosecuting the other to judgment in the name of a friend, but for his own benefit, nothing being received by him upon either note, and the dis- counted note and an assignment of the judgment being tendered by him in court. Lord v. Bigelow, 124 Mass. 185. 591. Promissory Note.— If a promissory note, payable to the order of A., is given by him to the maker, it is not essential to the validity of the gift that the payee should endorse it. Hale v. Bice, 124 Mass. 292. 592. Promissory Note.— In an action on a joint and several note, signed by one person as principal and an- other as surety, and payable to the order of a bank, upon which was the memorandum, " F. & L. bonds as collateral," " F. & L. notes," being in fact deposited as security, it appeared that the treasurer of the bank, in reply to an inquiry by the surety, "if the F. & L. bonds were deposited with the note?" replied that they were. Held, that the surety was not discharged. FitcJiburg Savings Bank v. Hice, 124 Mass. 72. i93. Promissory Note.— If land mortgaged to secure a promissory note is sold under a power contained in the mortgage, and brings less than the amount of the note, an action may be maintained on the note for the bal- ance due. Wi7ig v. Hayf&rd, 124 Mass. 249. 594. Promissory Notes. — The alteration of a promis- sory note by one of the makers, by increasing the amount for which It was made, by the insertion of words and figures in blank spaces left in the printed form on which it was written, avoids the note as to such makers as do not consent thereto, even in the hands of a bona fide holder for a valuable considera- PEOMISSOKY NOTES. 151 tion. Greenfield Savings Bank v. Stowell, 123 Mass. 196. 595. Promissory Notes.— A negotiable promissory note is, under the act of April, 1873, governed by the law- merchant, and an endorsee for value before maturity in due course of business, vrithout notice, takes it free irom any set-off in favor of the maker, or against the assignor. The provision of sec. 570, Gantt's Digest, that all blank assignments shall be taken to have been made on such a day as shall be most to the advantage of the defendant, merely changes the former rule of presumption to be applied in the absence of evidence, and it is competent for the plaintiff to prove the actual ■date of the assignment. Qlendenin v. SoutJierland, 31 Ark. 20. 596. Promissory Notes.— A waiver of demand and notice upon a promissory note is as effectual after as before the maturity of the note. Rindge v.' Kimball, 124 Mass. 209. 597. Promissory Note.— In an action against a surety •on a promissory note, it is no defence that the holder •delayed enforcing the note against the maker, and that the surety was thereby injured. Allen v. Brown, 124 Mass. 77. 598. Promissory Note.— A memorandum of "F. & L. bonds as collateral," on a joint and several note, signed by one person as principal and another as surety, is not notice to the payee of any agreement be- tween them that the principal would pledge the bonds named, nor a condition precedent to the liability of the surety that the payee should receive the bonds named :as security. Fitchhurg Savings Bank v. Bice, 124 Mass. 72. 599. Promissory Notes.— A., through fraud, obtained irom B. a promissory note signed by B. and payable to the order of C, forged the endorsement of C. and got the note discounted at a bank. On the maturity of the note B. paid it to the bank. Held, that B. could maintain an action against the bank for money had 152 PROMISSORY NOTES. and received, although the bank acted in good faith in taking the note. Carpenter v. NortTiborough National Bank, 123 Mass. 66. 600. Promissory Notes.— When a promissory note, based on an insufficient consideration, has been ob- tained from a person under the influence of liquor at the time of its execution, and enfeebled in mind and body by long continued disesfse and drunkenness, a presumption of fraud arises, which mast be counter- vailed by proof of a fair consideration, and fair and honest dealing on the part of him who seeks to enforce payment of the note. Holland v. Barnes, 53 Ala. 83. 601. Promissory Notes.— P?'mc/paZ and surety. — De- fendant signed a note with L., as it appeared from the force of it as a principal with, but in fact as sectirity for him. In order to procure it to be discounted, L. took the note to plaintiff, and asked him " if he would sign it with him, and defendant," and plaintiff signed' it, adding to his signature the word surety, supposing from the manner in which he was asked to sign it, and from its appearance, that he was signing as surety for both L. and defendant, and regarded them as princi- pals. The note was discounted, and, upon its matu- rity, L., having negotiated with the bank for renewal, drew another like it, procured defendant's signature- thereto as before, and sent it to plaintiff, requesting him to sign and deliver it to the bank, and take up the former note, which he did, adding to his signature, as before, the word surety. Held, that plaintiff was surety for, and not co-surety with defendant. Sher- man V. Black, 49 Rowell, Vt. 198. 602. Promissory Note.— One who puts his name on the back of a note at the time it is made and before it comes to the hand of the payee, there being nothing to show with what intention, is liable as maker. The opinion of the court at the former term in this cause, on this point, re-examined and affirmed. Good v. Mar- tin, 2 Colorado, 218. PEOMISSOEY NOTES. 153 603. The ground of Ms Liability. — In an action on a promissory note against one wlio is charged as maker, upon the groimd that he endorsed the note at the time it was made, and before it was delivered to the payee, the circnmstance that he did not participate in the consideration, does not tend to explain or rebut his liability as maker. Id. G04. Promissory Note is Secured by a chattel mort- gage, executed by the maker of the note ; in the absence of a demand, or any proceeding by the payee equivalent to a demand, the maker is entitled to the whole of the business hours of the last day of grace to pay the note, and is not in default until the expi- ration of that time. Daly v. Proetz, 20 Minn. 411. 605. Promissory Note.— Prmc?^aZ and Surety.— Lia- Mlity of Co-sureties. — Want of Consideration. — Plain- tiff and defendant were endorsers of a promissory note whereof M. was payee. The makers became •bankrupt, and plaintiff paid the note, which M. had procured to be discounted. The makers compounded with their creditor, and plaintiff received his pro rata portion, and with the advice and consent of defend- ant, and upon his agreement that his liability should not be thereby affected, discharged the makers from further liability. Held., that the liability of the en- dorser was fixed by the insolvency of the makers ; that when plaintiff paid the note, defendant became liable to contribute a moiety ; and that defendant was estopped from questioning the agreement that induced the discharge. Hutchinson v. Thacher, 49 Rowell, Vt. 486. 606. Promissory Notes.— If a promissory note, not ne- gotiable, is given to a married woman by a third per- son in consideration of her husband's giving up to him a like note, and she transfers the note, with her hus- band's consent, to a creditor of his, in fraud of other creditors, the maker, in an action upon it in her name, cannot take advantage of that fact. Harding v. Colon, 123 Mass. 299. 154 PEOMISSOEY NOTES. 607. Promissory Note was executed on Sunday, but bore date the following day, and was endorsed before maturity, for value. Held, that the endorsee was not affected by the original invalidity of the instrument. Trieber v. Com. Bank of St. Louis, 31 Ark. 128. 608. Promissory Note made payable on a day named, " or before, if made out of the sale of J. B. Drake's horse hay-fork and hay-carrier, with use," is pay- able at all events on the day named, with six per cent, per annum interest from date. Oisne v. Ohidester, 85 111. 523. 609. Promissory "Sote.— Dishonor. — The mere fact of cancelling the signature of the makers of a dishonored promissory note and writing "paid" on the note, cor- rected before the note is sent back to the plaintiffs by a memorandum thereon "cancelled in error," cannot "be effectual to charge a bank with the receipt of the money. Where a promissory note, is dishonored to the plaintiffs, the amount thereof having been transmitted by transfer drafts and entries in the bank's books, from the branch where the same was made payable to the branch where the plaintiffs paid the same in, such transfer and entries not being communicated to the plaintiffs. Held, that the bank could not be charged with the receipt of the money. The position of branch banks is, that in principle and in fact they are agen- cies of one principal banking corporation or firm, not- withstanding that they may be regarded as distinct for sjjecial purposes ; e. g., that of estimating the time at which notice of dishonor should be given ; or of en- titling a banker to refuse p^yment of a customer's check except at that branch where he keeps his ac- count. Prince, et al. v. Oriental Bank, 41-42 Eng. Law Reports, 3 Appeal Cases, 1878, page 325. 610. Promissory Note, made payable to the order of the maker, has no validity until it is endorsed and transferred by him. Payser v. Hall, Admr., 85 111. 611. 611. Promissory Notes.— The law in force when a prom- PROMISSOET K0TE8. 155 issory note is made and endorsed, regulates and defines the liabilities of the parties. Cook v. Citizens' Mutual Ins. Co., 53 Ala. 37. 612. Promissory Note. — Accommodation paper. — Where, on the sale of a note, it is represented as busi- ness paper, the fact that it was in reality an accommo- dation note, ought to be clearly proved ; if the law be not violated, the intent of the purchaser is wholly im- material. Smith V. Paton, 6 Bos. 145 ; S. C, 31 K Y. 66. 613. Promissory Note must be certain as to day of payment. A promise to pay a sum of money upon the condition that a railroad should be built to a place named on or before 20th of February, 1871, is not a promissory note, and is not negotiable as such. Hl- dred v. Malloy, 2 Colorado, 320. 614. Promissory Note.— When without consideration. — A promissory note given in consideration of ser- vices, already rendered the maker, for which the payee had already received the amount mutually agreed on between them, is a mere gratuity and without consider- ation. Holland v. Barnes, 53 Ala. 83. 615. Promissory Notes.— In an action on a promissory note by the administrator of the payee there was evi- dence that, on the death of the payee, the note, in a division of the personal property made before the ap- pointment of the administrator, fell to a daughter, who by an agent demanded of the principal maker payment of the note ; that the maker replied that it was not convenient for him to pay it, but agreed to pay interest at eight per cent. ; that the agent thereupon wrote the words " at eight per cent. " on the note in the presence and with the assent of the maker ; that a surety on the note, when told of the maker's agreement, after his death, and when shown the note so altered, paid the interest at eight per cent. Held, that the legal title to the note was in the administrator, and that he could maintain an action upon it. Held, also, that the evi- dence would warrant the jury in finding that both the 156 PEOMISSOEY NOTES. maker and the surety assented to and ratified the note in its altered form, and thereby agreed to pay the same to the lawful holder for the sufficient considera- tion of an agreement to forbear, and an actual forbear- ance, by those who apparently had the actual control of the note and the equitable interest therein. Prouty V. Wilson, 123 Mass. 279. 616. Promissory Jiotes.—Auth(wUp of an agent or at- torney to execute a promissory note. — Where a peti- tion alleges that "the defendant, by P. and A., her attorneys in fact, made and delivered to one T., her promissory note of that date, and thereby promised to pay to said T. or order," etc., and a copy of said note is attached to said petition as a part thereof, which is signed as follows: "Eliza C. Abeel, by Charles A. Phillip and John T. Abell " (Eliza C. Abeel being the defendant, and the sufficiency of the peti- tion not being in any manner attacked until after judgment), — Held, that the allegations of the petition, with regard to the execution of the note, are sufficient to charge defendant. Abell v. Harrington, 18 Kan- sas, 243. 617. Promissory '&fiXe,%.— Forged signature.— \l a per- son pays a promissory note through mistake, suppos- ing the signature upon the note to be his genuine signature, he may, on discovering it to be forged, maintain an action to recover back the money paid, if he is not guilty of laches, whereby the situation of the other party is changed to his injury. Welch v. Good- win, 123 Mass. 71. 618. Promissory Notes.— Variance. — Estoppel. — A note payable on or before six months from date, was declared upon as payable six months from date. Held, no variance. B. was interested with the plaintiff, hi& son, in the note in suit, which purported to be signed by defendant as surety for his son, the principal. The testimony tended to show that B., having heard rumors unfavorable to the principal's solvency, went to defendant and told him he held a note against him. PEOMISSOBY NOTES. 157 and as he signed, it as surety, and it was over-due, lie thought he would let him know about it ; that de- fendant, therefore, looked at the note, and at his name thereon, and said : " It is all right ;' ' that about ten days thereafter, defendant asked B. what interest his (defendant' s) son was paying on the note, and was told, and thereupon said that that was better than they could do at the bank ; and that therefore B. sup- posed "everything was all right," and made no at- tempt to collect the note, nor to press payment thereof, until about a year and a half afterwards, though the principal continued in business about six months there- after as before. Held, that the testimony tended to show all that was necessary to estop defendant from ■denying that he signed the note. Bates v. Leclair, 49 Eowell, Vt. 229. 619. Promissory Notes.— A note otherwise negotiable, is not rendered non-negotiable by the addition of a stipulation to pay costs of collecting, including reason- able attorney fees, if suit be instituted thereon. Sea- ton V. Scom'U, 18 Kansas, 433. 620. Promissory Note.— When Time of Payment is ■not Stated. — When no time of payment is expressed in a note, the law adjudges it to be due and payable im- mediately. Dodd V. Denny, 6 Oregon, 156. 621. Promissory TtioUs.— Forged. — The situation of a person, to whom money is paid by mistake on a forged note, is not changed to his injury by the fact that, on payment, he transfers to the j)ayer a mortgage which he received as collateral security for the note, and which, with the note, he took in good faith, supposing the note to be genuine, the mortgage having been given as security for another note, of which the forged note was a copy. Welcli v. Godwin, 123 Mass. 71. 622. Promissory -^0%^%.— Transferred without En- dorsement. — Minear, being indebted to the Bank of Idaho upon his promissory note, in consideration of an ■extension of time thereon to Minear. Miller executed Ms promissory note to the bank for the sum of Minear' s 158 PEOMISSORY NOTES. note, with the understanding that both notes should be delivered up when either was paid. Moore, a stock- holder in the bank, received both notes, with notice of all the facts, as a part of his share of the bank assets. The Miller note was regularly endorsed to him ; the other was delivered without endorsement. Held^ 1. That Miller's liability was not that of an endorser upon the Minear note, but that it grew out of an independent contract to pay a certain sum at a fixed time, upon conditions expressed in the agreement. 2. That Moore became the owner of the Minear note without endorse- ment, and that he had the right to maintain his action upon the Miller note. Moore v. Miller, 6 Oregon, 254. 623. Promissory Note.— A parol agreement, by which the purchase-money notes were to be deposited with an attorney, and from the proceeds of such notes out- standing liens against the land deeded to the maker of the notes were to be taken up and discharged, may be shown, in defence of an action upon such notes. Such an agreement is so far distinct from and collat- eral to that part of the contract reduced to writing- as to allow of its establishment by parol evidence. Thomas v. Hammond, 47 Texas, 43. 624. Promissory Note secured by Deed of Trust. — Where a note, taken in renewal of the balance due on another, secured by a deed of trust, is negotiated by the payee, the purchaser of the new note is entitled to- enforce the deed of trust to secure payment thereof. Giving a new note for the balance due on an old one, will not operate to discharge the security, unless it is- apparent that the parties intended to extinguish the lien of the deed of trust. Gleason v. Wright, 53 Miss. 247. 625. Promissory Notes.— M., the payee of a promissory" note, asked defendant to| endorse it, which he refused to do unless the plaintiff would endorse it. M. prom- ised to procure plaintiff to endorse it, whereupon de- fendant endorsed it. Plaintiff, on being asked to en- dorse it refused to do so unless M. would procur© PROMISSORY NOTES. 159 defendant to sign with him a note for a like sum, pay- able to plaintiff as security therefor, which M. agreed to do, whereupon plaintiff endorsed it. M. afterward procured defendant to sign the second note as agreed, and delivered it to plaintiff. Held, that as the second note was given without any new consideration, for the purpose of indemnifying plaintiff for endorsing the first note, on which plaintiff and defendant were made co-sureties, the second note was, as between the par- ties, nudum, pactum and invalid. Hutchinson v. ThacJcer, 49 Howell, Vt. 486. 626. Promissory ^ote.— Purchaser. — A bona fide hold- er of a note, who purchased it for value before it fell due, and without notice of payments made on it, can collect the face of the note and interest. The assignee of a promissory note, who purchases it in good faith before it falls due, without knowledge that payments have been made on it, and receives a covenant from the payee that the sum he pays for it is due, cannot main- tain an action on the covenant if such amount is not due, for he sustains no loss, as the payer is liable to him for the face of the note. Small v. Clarice, 51 Cal. 227. 627. Promissory Notes.— When at the time of the ex- ecution of a promissory note, a contract in writing is made between the payer and payee upon a separate piece of paper, which describes the note and clearly re- fers to it, the note is to be read in connection with the contract as though it had been incorporated into it, and, in an action on the note brought by the payee, the payer may introduce evidence that the payee has broken the stipulations of the contract. Goodwin v. Nicherson, 51 Cal. 166. 628. Promissory Notes.— Circuit Court rule 79 excuses the plaintiff on a promissory note from proving its ex- ecution, if the defendant omits to file an affidavit deny- ing it. Held, that the only object of this rule is to en- able the plaintiff to make out a prima facie case, not a conclusive one, and that it would not preclude a de- 160 PROMISSOET NOTES. fendant from introducing any defence on the merits that did not contradict the execution of the note. It Tvould not prevent an endorser from showing that he had signed without consideration, and after the note had been delivered. EnrigM, et al. v. Ellison, 37 Mich. 459. The execution of a note is only its actual making and delivery. Id. 629. It seems that where the considerations of a note is open to inquiry at all, it is as much so in behalf of any one of the defendants as of all. Id. 630. In action on partnership paper given m,ala fide, but binding one partner, evidence is admissible to exonerate a co-partner. Id. 631. Contemporaneous and subsequent guarantees have the same contract force, and differ only as to what considerations sustain them. Id. 632. Subsequent endorsement does not make the endorser jointly Kable with his principal, and joint liability is not presumed when the endorsement is not dated ; it is shown by independent proof of contempo- raneous execution. Id. The production of a note in evidence under the common counts without objection,. will not preclude raising the objection that it varies from a special count. Id. 633. Promissory Note.— In an action on a note by a holder who received it after it became due, and who in fact was a mere agent and no7n de plume in the matter. Held, that the defendant might plead in such action all matters which might have been pleaded to the owner of the note, and also obtain a reduction of the usurious interest included in the note and of payments made on account thereof. Brooks, et al. v. Olegg, 12 L. C. R. 461 ; Q. B. 1862 ; 2287 CO. 634 Promissory Note.— Void ab initio. — A note given to the new firm formed after the dissolution of the old, in satisfaction of a guarantee given to the old for advances made by them, was held, reversing court be- PEOMISSOET NOTES. 161 low, to have been given in error and without consider- ation, anrl was therefore void. Henault v. Thomas, et al., 1 L. R. 706, Q. B. 1868. 635. Promissory yote.— Where made. — The evidence of the plaintiff in an action on a note is admissible to prove that the note, though dated at Montreal, was made at Quebec. Gault, et al. v. Wright, et al., 13 L. C. J. 60 ; S. C. 1868. 636. Promissory fi(iU%. -— Bndorsement. — Protest. — A demand and notice are not necessary as against an en- dorser who at the date of the maturity of the note has sufficient property of the maker in his possession held as security against his liability. Beard y. Westerman, 32 Ohio St. 29. 637. If the endorsee of a note has protected himself against loss by taking collateral security of the maker, it is a waiver of his legal right to require proof of de- mand on the maker and notice to himself of non-pay- ment. Mead v. StpmU, 2 Greenleaf, 297. 638. Promissory Note —Endorser. — If the endorser has security in his own hands fully equal to his liability he can suffer no loss by the want of demand and notice, therefore he has been held liable in such a case with- oiit proof of those facts. Marshall v. Mitchell, 35 Maine, 221. 639. If the endorser receives security to meet a par- ticular endorsement, he waives a demand and notice in respect to that endorsement but not as to any other. Prentiss v. Danielson, 5 Conn. 175. 640. A bond and mortgage were assigned to a third party in trust to secure the endorser if the maker should fail to pay the note, and the endorser was held notwithstanding a defective notice. Barrett v. Charleston Bank, 2 McMuUen, 191. 641. The endorser being indemnified by a mortgage he was held responsible although the demand was made a day too late. Wart v. Mitchell, 6 How. Miss. 131. 642. The second endorser on a note who had received 11 162 PROMISSORY NOTES. ample security from the first endorser , thereon, was held, although the security he held had afterward be- come doubtful. Id. C4.?. Promissory Notes.— FaZwe recei»e<^. — The want of the words "for value received," does not prevent a plaintiff from recovering on a note if it be in evidence that value was given therefor. Duchesney v. Enarts, 2 Rev. de Leg. 31, K. B. 1821, 2285 C. C. 044. Promissory note under £50, drawn to order, may be validly transferred for value received by him to whose order it is made without endorsation, and parol evidence is admissible to prove such transfer. Dupuis V. Marron, Yt L. C. J. 42, C. C. 1873 ; 1233 & 2341 C. C. 045. Promissory Notes.— -SeTOe2oaZ. — Action was brought on a note and open account, and defendant pleaded that he had sent in a renewal note to the plaintiffs which they retained in their possession and which had not yet matured, and the plaintiffs reijlied that they had never agreed to renew. Held, that defendant was bound, unless on acceptance by plaintiffs, to call and take away the renewal note, and the mere fact of plain- tiffs not returning it could not be construed into an agreement to renew. Lyman, et al. v. Chamard, 1 L. C. J., 285 S. C. 1857. 646. Promissory Notes.— Where certain notes were nearly out of date, the defendant was called on by the holder of them, and notified that unless something- was done suit would be brought upon them. Where- upon the defendant signed the following endorsement upon each of the notes: "Paid Dec. 16th, 1872, $500 on acct. of this note to revive the same." Held, that if the parol evidence of the agreement relied on by him as a defence, was otherwise admissible, the defendant had effectually precluded himself from the resort to such defence by said endorsement upon the notes. Held, further, that if there were any question of the plaintiff's right to recover on the notes as specially de- clared on, there could be none whatever of their right to recover on them with the defendant's endorsement PROMISSORY NOTES. 163 thereon, under the count on an account stated. Mc- Sherry v. Brooks and Barton^ Trustees, 46 Md. 103. 647. Promissory Note of Married Woman. — Action was brought on a note signed by a married woman sep- arate as to property, without the authority of her hus- band. Held, confirming court below, that as the de- fendant was at the time of making the note in question a mercTiande puhlique, that the authorization of her husband was unnecessary. BeauMen & Husson, 12 L. C. R. 47, Q. B. 1862 ; 179, C. C. 648. Promisory Note signed with an X in presence of a witness is good and valid. Collins v. BradsTiaw, 10 L. C. R. 366, C. C. 1860. Defendant was sued on a note signed with a cross, and pleaded, denying the sig- nature, and plaintifiE failed to prove the signing. Held, that the action must be dismissed. Qoupal v. Coupal, 5 R. L. 465, S. C. R. 1873. 649. Promissory Note.— A promissory note not yet due, endorsed by a party wlio has since become bank- rupt, does not entitle the holder to be paid au mare la livre concurrently with the other creditors of the bank- rupt, the term for payment not having expired. Mail- loux Audet & Mailloux & Carrier, 14 L. C. R. 207, C. C. 1864. 650. Promissory Note.— Where a note is executed by a married woman authorized by her husband, for property bought by her, during marriage, and it is not sliown that she is separate in property, nor that she adminis- tered her paraphernal property, nor that she was a public merchant, nor that the property inured to her separate benefit, she cannot be held liable on the note. Such note is a debt of the community, inasmuch as the property, the consideration of the note, belongs to the community. For such a debt a wife, such as is sued herein, is incapable of binding herself. The hus- band is liable. Mr. M. W. OraJiam v. Mrs. Z. A. Thayer, 29 La. 75. 651. Promissory Note.— Jb^?^^. — Stewart lent to Ster- ling and Cooper $250 each and took their joint note for 164 PROMISSORY NOTES. $500 ; Sterling was liable for half the note as principal and half as surety. Stewart told Sterling that if he would pay half the note he would give him a receipt in full for his half ; Sterling paid the half and the re- ceipt given. Held^ that this did not release him from the other half. Sterling v. Stewart, 74 Penn. St. Kepts. p. 445. 653. Promissory Note for Patent-right. — The act of May 4, 1869 (66 Ohio, L. 93), making it a penal offence to take a " promissory note or other negotiable instru- ment" not containing the words "given for a patent- Tight," knowing the consideration thereof to be a pa- tented invention, does not include in such offence the taking of notes or instruments not negotiable. An in- dictment which does not show that the note or instru- ment on which it is founded was negotiable, does not show an offence under the act, and may be met by de- murrer. State V. Brower, 30 Ohio, 101. G53. Promissory Notes.— Witness. — The maker of a promissory note, after judgment recorded against the endorser, not a competent witness for the endorser in a suit in equity to restrain the collection of the Judg- ment. McDowell V. Bank of Wilmington and Bran- dywine. Bates, 2 Delaware, 1. 654. Promissory Note.— A bank being the holder of a promissory note protested for non-payment, has not the right to credit it with deposits made by the debtor to his account as a justice of the peace ; and its omis- sion to do so does not discharge the endorser. Id. 655. An agreement by the bank to credit the note with such fees as the debtor might earn as a notary public in protesting bills and notes for the bank does not discharge the endorser, though made without his privity. Id. PMlpot v. Bryant, 4 Bing. R. 721, also 13 Eng. Com. Law, 128. C56. An agreement between the creditor and the principal debtor, in order to discharge the surety, must be such as gives time to the debtor ; and it must be for 2. consideration. Id. PBOMISSORT NOTES. 165 657. Promissory Note.— The endorser of a promissory note due the 11th February, gave to the holder a mem- orandum, as follows: "My note, becoming due the 10th instant, good for ten dp,ys after date." The note to which he referred became due the 11th, there was no other note, and it was piesented the 24fch February, Held, the endorser was liable. Burnett v. Monaghan, et al., 3 R. L. 448 ; L. C. li. 1871, 2324 C. C. 658. Bromissory Note. — A mere memorandum made by a party on a note, or obligation, in his possession, cannot, when the fact it purports to establish is denied, be admitted as testimony sufficient to create or con- tinue the liability. In this case the statute of limita- tions was pleaded, and the fact that the payment endorsed on the note was actually made, was contro- verted by the personal representative of the payer. The judgment of the circuit court, sustaining the plea of the statute of limitations, is affirmed. Frazef s AdmWs v. Frazer, et at., 13 Bush, Ky. 397. 659. Promissory Notes, payable at and discounted by an incorporated bank, are placed, by the law of this State, upon the footing of foreign bills of exchange. Duncan v. Louisville, &o., 13 Bush, Ky. 378. 660. Promissory Notes.— Alterations, erasures, or mu- tilations of a paper upon which a liability is sought to be established against those who are originally bound, must be explained by the holder, when the fact of alteration, erasure or mutilations is raised in the pleading, and established by the proof. Frazer's AdmWs V. Frazer, &c., 13 Bush, Ky. 397. 661. Promissory THoU:.— Minors. — The defendant was sued on a note signed while he was yet a minor, which fact he pleaded simply as a defence to the action. Held, that the plea was insufficient, on the ground that the defendant should have pleaded lesion and asked to be released from the obligation. Qartier v. Pelletier, 1 E. L. 46 : S. C, 986 and 1002 0. C. 166 PROMISSORY NOTES. 662. Promissory Notes.— The taking of a promissory note for an antecedent debt imposes upon the creditor an obligation to wait for his pay till the note matures, without any special agreement to that effect, or any understanding that the debt shall be thereby extin- guished ; and the delay thus obtained is a sufficient consideration for the note. Therefore, the note of a married woman, given for the antecedent debt of her husband, is not void for want of consideration, if it is made payable at a future day. The court is not satis- fied that, at the time of the giving of the note in suit, the defendant did not have an intelligent understand- ing of what she was doing, nor that there was any such fraud or imposition practiced upon her as ought to avoid the note. Thompson v. Gray, 63 Me. 228 ; also York V. Pierson, 63 Me. 587. 668. Promissory Note to Agent. — A note promising to pay A., or his order, £20 on account of B., enables the endorser of A. to recover the amount. Newton v. Al- len, 2 Rev. de Leg., 29 K. B. ; and Moir v. Allen, Id. 1817. And on such a note payment must be made to A. or A.'s order, and not to B. Clarice v. Esson, 2 Rev. de Leg., 30 K. B. 1820. 664r. Promissory Notes.— When the maker of the note has, himself, by careless execution of the instrument, left room for any alteration to be made, either by in- sertion or erasure, without defacing it or exciting the suspicions of a careful man, he will be liable upon it to any hona fide holder without notice, when the oppor- tunity which he has afforded has been embraced, and the instrument filled up with a larger amount or dif- ferent terms than those which it bore at the time he signed it. Daniel on Negotiable Instruments, sec. 1405, sustained in Blakey v. Johnson, 13 Bush, Ky. 197. 665. Promissory lioie.— Partner'' s LiaMUty. — R. held the promissory note of the firm of T. G. & Co. After it was given, some members of the firm retired, leaving assets sufficient to pay all debts, and taking the obli- PEOMISSORT NOTES. 167 gations of the succeeding new firm, to pay all debts and save the retiring partners harmless. Held, that unless E.., by,some valid contract, expressed or implied, had made himself a party to this new arrangement, or had so acted as to be estopped, his rights on the note against all the members of the old firm remained un- ■changed ; that while, as between the partners them- selves, the relation of principal and surety existed, yet, as to the payee of the note, all were principals and joint debtors, although notice of such obligation was brought home to him. Where the payee of such note has received from the new firm a chattel mort- .gage of the partnership proi^erty sufficient, if applied, to satisfy the debt, he may, with the assent of the re- tiring partners, release the mortgage, and return the property or its avails to the new firm, without impairing his rights against all the joint obligors on the note, •even though he had such notice of the subsequent con- tract between the parties. Rawson v. Taylor^ 30 Ohio, :389. 666. Promissory Note. — Signedhy procuration. — Proof •of the due execution of such procuration must be made to entitle the plaintifif to recover judgment in an ex parte suit on the note. Ettrier & Thomas, lf> L. C. J. 225, ■Q. B. 1873. And even where the defendant is in de - fault to appear. Id. 17 L. C. J. 79, Q. B. 667. Promissory note of hand executed by the maker's mark if endorsed gives no action to the en- dorsee against the maker, but the endorser is answer- able for money had and received. Jones v. Hart, 2 Rev. de Leg. 29, K. B. 1819. 668. Promissory mte.— Transfer of after maturity.— A note of hand was transferred after the time appoint- «d for payment, and there was fraud proved in the transaction. Held, that on slight grounds the law would presume thiit the endorser had knowledge of the fraud, if it appear that he omitted to satisfy himself as to the validity of the note. Hunt v. Lee, 2 Rev. de Leg. 28 K. B. 1813. 168 PEOMISSOBY NOTES. 669. A firm issued paper with accommodation en- dorsements, and protected the endorsers by a mort- gage executed by the partners. Subsequently one of tile partners retired, and the remaining partners formed a new firm, which issued paper in renewal of some of that issued by the old firm. This new paper was en- dorsed by one of the former endorsers, and a new mort- gage, executed by all the members of the old firm, cov- ering the estate previously mortgaged, with other property, protected this endorser : After voluntary as- signment by the new firm, the retired member of the old firm, and the last named endorser. Held, that the new paper was a mere renewal of the old, and that holders of the new paper were entitled equally with holders of the old to the fund furnished by the first. Held, further, that no inference of the absolute pay- ment of the old paper by the new could be drawn either from the fact that the new mortgage was given, or from the fact that the old paper was surrendered or cancelled on the issue of the new. Held, further, that an agreement to discharge a retiring partner will not be inferred from the mere acceptance of the note of the continuing partners for the joint debt. Nightingale v. Chafee, 11 R. I. 609 ; see Wilbur v. Jernegan, 11 R. I. 113. 670. Promissory Note made by defendant in fa\or of another. The note was not paid or protested at matu- rity, but some time afterwards the payee endorsed it over to plaintiff, in part payment of things purchased from him. In an action on the note, want of protest was raised by the defendant. Held, that the note might be transferred after maturity, but the maker could raise all the questions which might have arisen in the mean time between himself and^the payee. Dug- uay V. Senecal, 1 L. C. L. J. 26, S. C. R. 1865. 671. Promissory Notes given by insolvents a few days before the insolvency, to secure parties to whom thej^ were indebted on accommodation paper, and on these notes being transferred the transferees claimed to rank. PROMISSORY NOTES. 169 on the estate of the insolvents for their value. Held, that such notes were null and void ah initio, even in the hands of an innocent holder for value before matu- rity. Davis, et al. in re, and Muir & C hamberlin, et al., 13 L. C. J. 184, S. C. 1869, 1032 et seq. C. C, & Ins. Act, 1875, sees. 130-133. C72. Defendant pleaded that the note sued on had been obtained from him by surprise and false repre- sentations, and for insufficient consideration. Held, that he was not bound to produce with such plea an af- fidavit under C. S. L. C. cap. 83, sec. 86. McCarthy, et al. V. Barthe, 6 L. C. J. 130, S. C. 1862. 673. Where Maker Absconds. — Before a note of hand payable a terme becomes due action may be maintained for the amount against the drawer if he absconds. Shepherd v. Henrickson, 2 Rev. de Leg., 31 K. B. 1819. 674. Promissory Note for £100 was given by an insol- vent to one of his creditors in settlement of a claim of the creditor against another party for whom the insol- vent was surety, the creditor refusing to sign the composition deed of the insolvent unless such settle- ment were made. Held, that as the settlement was in no way prejudicial to the other creditors who received the composition to which they agreed, that the note was good, and the action on it must be maintained. Greenshields v. Plamondon, 8 L. C. J. 192, 10 L. C. R. 2ol, Q. B. 1860, reversing 3 L. C. J. 240, S. C. Ins. Act, 1875, sees. 55 & 56. 675. Defendant pleaded want of notice of protest, but produced no affidavit in support of such plea. Held, that the action would be maintained, notwithstanding the protest produced contained no certificate that no- tice of such protest had been given. The Bank of Upper Canada & Turcotte, 15 L. C. R. 276, S. C. 1865, 145 C. C. P. 676. Promissory Note payable in this country must be made in money current in this country, and that not- withstanding the note in question may have been made 170 PEOMISSORT KOTES. in a foreign country. Chapman v. McFie, et al., 1 R. L. 192, S. C. R. 1869. 677. Sureties' Rights.— The holder of a promissory note being requested by a surety to proceed against the principal maker, and failing to do so, if the* principal maker afterward becomes insolvent the surety is ex- onerated. Pain V. Packard, 13 Johns., aflBrmed in Martin v. Skehan, 2 Colorado, 614. 678. Promissory Notes.— The stamp of a bank on a promissory note is not an infallible indication of the legal holder and owner. BartJie v. Armstrong, 5 R. L. 213, C. C. 1869. The holder and owner of a note may cancel any of the endorsations and reserve his recourse only against the maker, and may bring his action as if he had re- ceived it from the payee or any subsequent endorser, whose name is not cancelled. Id., and 2289, C. C. Ca. 679. Given by an Insolvent.— A note to a creditor for the balance of his claim in consideration of his hav- ing signed a deed of composition is void. Blackwood V. C/dnic, 2 Rev. de Leg. 27, Oa. K. B. 1809. 680. In an action to recover the amount of an I. O. U., Held, that such an instrument was negotiable like other mercantile paper. Beaudry v. Lajlamme & Davis, 6 L. C. J. 307 ; S. C. 1862, Ca. 681. Payments by Endorsers.— Where a claimant in in- solvency had received, as holder of a promissory note, a composition on the amount of his claim from an en- dorser, in consideration of which he had released the endorser, reserving his recourse against the other par- ties to the note. Held, that whatever the claimant had received from the endorser must be deducted from his claim against the maker's estate. Bessette, et al. V. La Banque du People & Quevillon, 15 L. C. J. 126 S. C. R. 1871, Ca. 682. Plaintiflf sued upon the following instrument : "12 months from the 26th June, 1873, I (defendant) will pay J. C. (plaintiff) $90, for D. P., or otherwise settle the sum of $90 for him, on a note that he says he PROMISSORY NOTES. 171 gave J. C, for $100." Held, 1. That this was not a prom- issory note, and required a consideration to support it. 2. That it was a promise made to D. P. and not to plaintiff. Cochran v. Caie, 3 New Brunswick Reports, 224. 683. A promise in writing to pay on a day certain £250 to A. B. or order, with an engagement to pay in cash or in goods, if the holder should choose to de- mand the latter, is a promissory note, for this engage- ment is no more than a power given to the holder to convert a promissory note into an order for merchan- dise if he see fit to do so. McDonald v. Holgate, 2 Rev. de Leg. 29, K. B. 1818 ; 2344, C. C, and art. 229, infra. Ca. 684. Promissory Notes.— A promise to pay a note to the holder which is not endorsed is sufficient to enable the holder to recover if the drawer knew that it was not endorsed. Aylwin v. Cruttenden, 2 Rev. de Leg. 30, K. B. 1820 ; 2285 C. C. 685. In an action for goods sold, in which the de- fendant pleaded payment and novation by a promissory note which he had given to the plaintiff, Held, that a writing merely certifying that a person is indebted to another in a certain sum of money, is not negotiable as a promissory note, and if it were it would have been no novation of the debt. Dasylva, et al. v. Dufour, 16 L. C. R. 294; C. C. 1866, Ca. 686. Issued under Fraud.— A son, having acknowl- edged to have stolen f 25, the mother was induced to sign a promissory note under threats of having her son arrested, Held, that she was not liable on the note in question. Macfarlane v. Devy, 15 L. C. J. 85, Q. B. 1871 ; 994, C. C, Ca. 687. In Cases of Insolyency.— Action was brought on a promissory note having two years or thereabouts to run, on the ground that the maker had become insol- vent and had left his domicile in Lower Canada, and the defendant demurred on the ground that the plain- tiff had not alleged either fraud or secretion of his es- 172 PKOMISSOBY NOTES. tate. Held, dismissing the demurrer, that the note was exigible on proof of insolvency. Lowell v. Meilcle, 2 L. C. J. 69, S. C. 1853 ; Ins. Act, 1875, sec. 80, Ca. 688.— A note executed in 1863 for the balance due upon a note executed in 1853 (such new note being given because of a lack of space on the old note for en- try of a credit), is not subject to the legislative scale of Confederate money. Cobb v. Oral/, 78 IST. C. 94, 689. Payable on Demand.— Action was brought on a promissory note payable on demand thirteen years after its date, and prescription being pleaded. Held, that it was due from the day of its date, and if action were brought on it, and no de- mand of payment proved, that the omission could not affect the action, and merely the costs, and there- fore the prescription ran from the day of its date. La Rocque, et al. v. Andre, et al., 2 L. C. R. 335, S. C. 1851 ; 2260, sec. 4 C. C. C. 690. Municipality.— On action to recover the amount of a promissory note signed by the secretary-treasurer of a municipality, — Held, that where the power of sign- ing such promissory notes was not expressly given to the corporation by its charter, or otherwise, that it could not be implied as necessary to accomplish any of the purposes for which the corporation was created. And ?teld, also, that a promissory note signed by such cor- poration in settlement of a judgment against the muni- cipality, was null, the legislature having empowered municipalities to raise money in a different way. Pa- cand V. The Corporation of Halifax South, 17 L. C. R 56, S. C. R. 1866, Ca. 691. Tariance.— In an action on a promissory note against an endorser, it is not necessary for the plaintiff to allege in his declaration endorsement subsequent to the defendant's, where the plaintiff does not sue upon any title derived through such subsequent endorse- ments. Bank of America v. Senior, 11 R. I. 376. 692. In an action on a note made in the United States, and payable there, defendant, after action PROMISSORY NOTES. 173 brougtit, tendered the amount in Canadian currency, equal at the then current rate of exchange to the amount of the note in American currency, with costs. Held, that judgment must be given for the amount of the note in Canadian c urrency with costs. Daly v. Graham, 15 L. C. R. 137, and 8 L. C. J. 340, C. C. 1864. And in another case of the same kind, — Held, that the note being payable to bearer, the maker must be held to have agreed to pay in the currency of the place where the bearer resided, and, consequently, that a tender of payment in greenbacks was insufficient. McCoy V. Dineen, 8 L. C. J. 339, S. C. 1864, Ca. 693. No set form of words is requisite to constitute a promissory note, and an instrument called a writing obligatory as a bond payable to order for value received, may be considered as a note in writing within the in- tent of the- Provincial Statute 34 Geo. 3, Cap. 2, though it do not follow the very words of the act, and though it be merely described and designated in the plaintiff's declaration as writing obligatory or bond. Hall V. Bradbury, et al., 1 Rev. de Leg. 180, Q. B. 1845. 694. An obligation before a notary to pay a cer- tain sum of money without condition and at all events is a promissory note. Aurele v. Durocher, 5 R. L.165, «. C. R. 1873 ; 2244, C. C. 695. Illegal Consideration.— A statute of the State pro- vides that "all payments or compensations for liq- uors sold in violation of law, whether in money, labor ■or personal property, shall be held and considered, as between the parties to such sale, to have been received in violation of law, without consideration, and against equity and good conscience." With this law in force A. agreed to purchase of B. a half interest in a busi- ness and stock in trade, a portion of which eonsisted of liquor illegally kept for sale, and transferred a promissory note for $450 in part payment. A. after- wards repudiated the arrangement and sued for the T^alue of the note. Held, that A. could recover so 174 PROMISSORY NOTES. much of the value of the note as might have been paid for liquor illegally kept for sale, the propor- tion to be recovered as paid for liquor to be deter- mined by finding the proportional value of the liquor as compared with the rest of the purchase. McGuin- ness V. Blegli, 11 R. I. 94. 696. One H. made his promissory note to the order of Senior. It was endorsed, by Senior, and subse- quently by Stone, and by the A. Co. by Stone, treas- urer. It passed into the possession of the Bank of America and was taken up by Stone, who brought suit on it against Senior in the name of the bank. At the trial, evidence was admitted by the presiding judge, notwithstanding Senior's objection, to show that Stone had paid the note to the Bank of America in full, and had left it for collection with the bank, and that the- bank authorized Stone to bring suit in its name. Se- nior also requested the judge to instruct the jury that^ as the note had been paid to the bank in full, it could neither bring suit on the note nor authorize Stone to do- so in its name. This instruction was refused, and the jury was told that if the facts, as claimed by the plain- tiff, were satisfactorily proved, the plaintiff could re- cover. Held, no error. Bank of America v. Senior,. 11 R I. 376. 697. In an action on a promissory note against an endorser, it is not necessary for the plaintiff to allege in his declaration endorsements subsequent to the de- fendant' s, where the plaintiff does not sue upon any title derived through such subsequent endorsement. Id. 376. 698. A note payable to the order of W. was before issue endorsed by F. It was signed by Gr., and his signature was, at the request of W., changed to G-., agent. The note was given for G.'s private debt. F. did not assent to the change, and there was no evidence to show that G's principals were accustomed to j)ay notes drawn in this form. In an action against F. Held, that the change was immaterial. Held, further. PROMISSOEY NOTES. 175 affirming Mathewson v. Sprague, 1 R. I. 8 ; and PerJcins v. Barsiow, 6 R. I. 505, that F. was not entitled to notice of non-payment. Manuf. & Mer- chants' Bank v. Follett, 11 R. I. 92. 699. Due presentment of a note, when denied, is sufficiently shown by evidence that the note was in the bank where it was made payable, and in the possession of its officers, on the day of its maturity, and that the makers had no funds there for its payment. When this proof is made, it is not necessary, on this issue, to show that formal presentment and demand were made. When a note is in the bank, in the custody of the proper officer, on the day of its maturity, such posses- sion is treated as due presentment. HuffaJcer & Shy V. National Bank of Monticello, 13 Bush, Ky. 644 ; also, 1 Daniels on Negotiable Instruments, p. 486, sec. 656. 700. Property in. — Right to sue. — E. & M., having been in co-partnership in the fii-m of Wm. M. & Co., and E. having subsequently entered into partnership with other parties under the firm name of J. E. & Co., by an agreement passed in July, 1855, M. agreed with J. E. & Co. to assume all the liabilities of Wm. M. & Co., to pay the sum due E. & Co. in four installments, and to give security on condition that he should be al- lowed to cut timber on certain timber limits of E. & Co. He subsequently cut timber without giving se- curity, and the timber was transferred to the firm of Symes & Co., which had made advances to him. M. paid E. & Co. the first installment of the above men- tioned debt by his notes, and for £1,500, which E. & Co. paid away to a third party, and one for £800, which E. & Co. placed to the credit of M. & Co. E. & Co., having by raisie arret before judgment seized the timber cut as in the possession of M., and having sued for the whole debt. Held, that E. & Co., having paid away the note for £1,500 to a third party, could not sue for the debt for which it was given without producing the note, and also that E. & Co., having carried the note for £800 to the credit of 176 PEOMISSORT NOTES. Wm. M. & Co. , could not withdraw it from that account without the consent of M. Gibson, et al. v. Moffat & Young, 2 L. C. L. J. 60, Q. B. 1866. Held, also, that the plaintiffs not having alleged the insolvency of M., in their declaration, could not base their right to sue for the whole of the debt on such insolvency, and the allegation of his insolvency in their special answer could not avail to supply th^ deficiency in their de- claration. 701. Date of Issue.— The date of a promissory note is proof that the note was made on such date, and in the case in question. Held, that the party could not prove that the note had been made on a day posterior to its date, and that in consequence it fell within the opera- tions of a subsequent deed of compromise between the respondents and their creditors, among them was the appellant. Evans & Cross, et al., 15 L. C. R. 86, S. C. R. & 16 L. C. R. 469, & 2 L. C. L. J. 79 Q. B. 1866. 701a. Holder s Eights.— The holder of a promissory note does not require to prove that it was actually made on the date it bears, as the date makes proof of itself. Hutchins, et al. v. Cohen & Cohen, 14 L. C. J. 85, S. C. 1869. 702. When Payable.- On an appeal from a judgment condemning the defendants jointly and severally to pay the amount of the promissory note sued upon. Held, reversing the judgment of the court below, that a promise to pay at a specified place is not a promise to pay generally, and there is no liability on the part of the maker of a promissory note payable at a speci- fied place, unless proof be made of a presentment and of demand of payment at such specified place, and of neglect or refusal there to pay the amount of such note. OBrien & Stevenson, et al., 15 L. C. R. 265, Q. B. 1865, 2307 C. C. 703. Giyen in Discharge of au Antecedent Debt in Rhode Island does not discharge the debt unless the note is given and received as absolute jpayment, and the bur- PEOMISSOEY NOTES. 177 den of proof is on the debtor to show that it was so given and received. Nor does it make any difference that the makers of the note so given are fewer in num- ber than the original debtors. NigMingale v. Chafee, 11 R. I. 609. 704. Promissory note given for a precedent debt in Rhode Island does not, prima facie, operate as ab- solute payment of the debt, but rather as an extension of credit or as only conditional payment ^ and if the note at maturity is not paid, the right to sue the ■original debt and enforce its securities revives. But though, prima facie, the note has only this effect, yet if it was given and received by the parties as absolute payment or satisfaction, the debt will, upon proof that the note was so given and received, be regarded as paid ■or satisfied. Wilbur v. Jernegan, 11 R. I. 113 ; also, NigMingale v. Chafee, 11 R. I. 609. 705. The holder of a negotiable note, who has bought it in good faith, and before its maturity, ac- quires a valid title to it, though it be shown that the vendor of the note was not its owner, and fraudulently disposed of it. B. W. Ogden v. A. Marchand, 29 La. €1. 706. The maker and the endorser of a promissory note, although not technically debtors in s,oledo, are yet liable, each, for the whole debt. Paul Mack v. O. E. Fortier, et al., 29 La. 63. 707. The pledge or sale of a negotiable instrument before its maturity carries with it all the liens by which the instrument is secured, and by such sale, or pledge, the transferee divests of all power to affect the liens which secure the instrument. Mechanics' Building Ass. V. C. L. Ferguson, 29 La. 548. 708. In an action at law on a promissory note, facts which constitute mere matter of defence, and are available as such in the pending action, will not, in general, entitle the defendant to equitable relief. Such affirmative relief will be granted only when necessary 13 178 PROMISSOET NOTES. to prevent wrong or injustice. Bank v. Weyland, 30 Ohio, 126. 709. Assignor.— Burden of Proof— In a suit by the as- signee against the assignor of a note, where diligence by suit against the maker is not shown, the burden of proof is upon the plaintifiE to establish the insolvency" of the maker. Clayes v. White, 83 111. 540. 710. Payment.— Instmction.—ljl an action upon a prom- issory note, alleged to have been purchased by the- defendant for the plaintiff's intestate, with money fur- nished by the latter, wherein defendant pleaded pay- ment, it is proper to submit to the jury the question whether the transaction constituted a payment or a purchase of the note. While the mere delivery of money by the payer to the holder of a note is presump- tive evidence of payment, yet this presumption may bo rebutted by circumstances. Dougherty v. Deeney, et al., 45 Iowa, 443. 711.— When Held as Collateral Security.- Where a prom- issory note had been transferred by endorsement as col- lateral security, and then, before maturity, with the knowledge of the endorsee, the payee had sold it to a third party, into whose possession it did not come until after maturity : Held, that the latter acquired it free from equities, and occupied the position of a good faith endorsee before maturity. Grimm v. Warner, et al., 45 Iowa, 106. 712. —Where, at the request of the party with whom he deals, one makes his promissory note (which is to be partial payment for a piece of work to be done for him) payable to a third party, who is a creditor of the party with whom he contracts for the work, and it is credited by the payee to such party in good faith, the maker cannot set up a failure of consideration, as be- tween himself and the party with whom he deals, in defence of a suit upon such note, in the name of the payee. 8o. Boston Iron Co. v. Brown, 63 Me. 139. 713.— In an action upon an unendorsed promissory note, by a plaintiff alleging himself to be the owner PROMISSORY NOTES. 179 thereof by devise from the payee, the representative of the latter should be made a party defendant, or the complaint should allege that there is no such represent- ative ; but a failure to object to stich defect is a waiver thereof. 8t. John v. HardwicJc, 11 Ind. 251 ; also Strong- V. Downing, 34 Ind. 300 ; Shane v. Lowry, 48 Ind . 205 ; Shirts v. Isom, 54 Ind. 13 ; Bray v. Blade, 67 Ind. 417. 714.— Where a woman assigns by delivery a note payable to her order, and afterward marries the maker, her endorsement after such marriage transfers the legal title. The statutes of Maine give no mutual right of action to the husband and wife, and none such exists- by common law. Such has been the uniform construc- tion of this and similar statutes in Maine and Massachu- setts. Crowther v. Crowther, 55 Maine, 358 ; also Guptill V. Borne, 63 Me. 405. 715. Evidence to impeach a promissory note in the hands of a iona fide purchaser for value, before ma- turity and without notice is inadmissible. Waite v.. Chandler, 63 Me. 257. 716. Promissory Note and HLoYi^A^d.— Married Woman. — A married woman with the consent of her husband- may make an equitable assignment of a note and mort- gage executed to her, by the sale and mere delivery of the same to another. Baker v. Armstrong, 57 Ind. 189. 717. The holder of a solidary note cannot have its solidarity impaired, by the unauthorized action of his collection agent, who receipts in favor of one of the solidary debtors on the note for "his share" of the debt. Oooley v. Broad, 29 La. 345. 718. The holder of a negotiable note of a married woman, who has taken it for value, and before matur- ity, is yet liable to have pleaded against him every defence arising out of the wife' s incapacity. Conrad, et al.v. Lee Blanc, Sherif, 29 La. 123. 719. Demand.— In respect to the time within which it is necessary to present for payment a note, payable on. 180 PROMISSORY NOTES. demand, in order to charge an endorser, that "it de- pends upon so many circumstances to determine wht is a reasonable time in a particular case, that one decis- ion goes but little way in establishing a precedent for another." Seaver v. Lincoln, 21 Pick. 267. 720. Where in renewal of a matured promissory note executed by his decedent, the administrator or executor of an estate, as such, executes to the payee a new promissory note, he thereby becomes personally liable, but the estate is not bound. Gornthwaite v. The First Nat. BanJc, &c., 57 Ind. 268 ; also Mills v. Kuy- kendall, 2 Blackf . 47, and Carter v. Thomas, 3 Ind. 213. 721. Protest.— Where a bill is accepted by a firm, a notarial certificate of protest must state who compose the firm, and upon which of them the demand was made. Oswego County Bank v. Warren, 18 Barb. N. T. 290. 722-723. Notice of Protest.— When may he serried by m,ail. — What is good service hy mail. — Who deemed holder for purpose of receiving and giving notice rf protest. — What is not unnecessary and unreasonable delay. — When the endorser of a note lives in a differ- ent place from that in which presentment or demand is to be made, personal service of notice of protest is not required, but the notice may be served on him by mail, although he lives in the same place with the holder who serves the notice. Delivery to a city letter-carrier of a notice of protest enclosed in an envelope, properly addressed and with postage paid, is good service by mail. 724. Where a note held in Ifew York was payable in Kutztown, Pennsylvania, and the holder placed it in a ]N"ew York city bank for collection, which sent it to its Pennsylvania correspondent, a bank at AUentown, within eighteen miles of Kutztown, whence it was sent to a bank at Philadelphia, and thence to a bank in Reading, and thence to Kutztown for presentment, where it was dishonored : PROMISSORY NOTES. 181 Held, that eacli agent for transmission of the note for collection, having endorsed, it, was the holder for the purpose of receiving and giving notice of protest ; and that the return of such notice by the same chan- nel, each bank forwarding them by the next mail, was not an unnecessary and unreasonable delay which dis- charged the first endorser. "Wynen v. ScTiappert, 55 Howard, N. Y. 156. 725. In an action by an assignee, on a promissory note payable in a bank of this State, where the defences pleaded by the defendant maker were want of consid- eration, and that, after the execution of the note and before its assignment, the payee thereof, with the knowledge of the plaintiff, but without the knowledge or consent of the defendant, had procured the execu- tion of such note by a third person, the plaintiff re- plied, that before procuring such assignment to him- self, he had taken such note to the defendant, who, in answer to his inquiries concerning it, informed him that he had no defence thereto, and would pay it, and that, relying upon such statements, the plaintiff had procured an assignment of the note, for value. Held, on demurrer, that the reply is sufficient. Vaughn v. Ferrall, 57 Ind. 182. 726. Protest.— The defendant pleaded a general de- nial, there having been no notice of protest given him. The plaintiff answered that a verbal notice had been given to the defendant, and examined a notary to prove the giving of such verbal notice. The action was nevertheless dismissed. Cowan v. Turgeon, 1 Kev. de Leg. 231, Q. B. 1832 ; 2303 and 2327 et seq. C. C. 727. An endorsed note was discounted by a bank for the drawer, at maturity he took it up by a similar note on which the endorsements were forged, and de- stroyed the original note ; he took up the second note by another note with forged endorsements. Held^ that taking the last two notes in renewal did not extinguish the original note. The record of the protesting no- 182 PROMISSORY NOTES. tary being proved to contain a true copy of the first note, was admissible in evidence. The bank who dis- counted the first note was entitled to recover, on proof of its destruction and the genuineness of the signa- tures. Bitter v. Singmaster, 73 Penn. 400. 728. Purchaser of a mortgage from the assignee of a mortgage is put on inquiry as to his vendor' s title, by the latter' s failure to transfer all the securities. An assignment of a mortgage does not transfer undelivered collateral securities unless the parties so intend and a consideration is paid. Fletcher v. Carpenter, 37 Mich. 412. 729. Stock.— A note was given for additional stock in a manufacturing company ; Held, that evidence of a parol agreement when the note was executed that it was not to be paid except on a contingency, was inadmis- sible. StocTc. — Note. — Hacker subscribed for additional stock in a corporation and she gave her note for the amount ; a certificate was tendered her and refused, and no credit was given her in the stock ledger. Held, the note was not without consideration ; she had the right to demand and receive the stock. Hacker v. National Oil Co., 78 Penn. St. 93. 730. Protest Irregular.— If the protest for the non- payment of a promissory note be premature, or if time be given by the holder to the maker, the endorser is discharged, but if, with a knowledge of the protest having been made or of the giving of time, he, the en- dorser, subsequently promises to pay, his liability is revived. The City Bank v. Hunter & Maitland, 2 Rev. de Leg. 171, Q.' B. 1847. 731. VrActiae:.— Garnishee order note not yet due. — A promissory note not yet due does not constitute a delDt within the meaning of sec. 63 of the common Law Procedure Act, 1856, which can be attached to answer a judgment debt. Motion to attach the amount of a promissory note. Plaintiff had, in October, 1876, ob- tained a judgment against the defendant for £73. 19s. PKOTEST. 183 lid., which was still unsatisfied. The promissory note, the amount of which was sought to be attached, had laeen passed by one John Grrifln to the defendant for the sum of £100, payable on the 28th of February, 1877, and consequently not due at the time of the present motion. The note was in the hands of the de- fendant, and it was deposed that Griffin was liable to the payee in the amount thereof. Morris, C. J. — You have no case of such an order made in this country to attach the amount of a promissory note. Keogh, J. — I have refused similar applications on several oc- casions. Lawson, J. — This being a negotiable instru- ment, no order can prevent its being endorsed over. Morris, C. J. said further— What evidence of a debt is there in a promissory note ? There may have been no consideration. We will not make a precedent. Motion refused. Pyne v. Kinna, Irish Reports, •Common Law Series, Vol. 11, p. 40. 732. A note was, "twelve months after date (or before, if made out of the sale of" — a machine), "I promise to pay to J. F. Huston or bearer" &c. Held, to be negotiable. A note to be negotiable must be for the payment of money at a fixed period on an event w^hich must inevitably happen. Id. A note is not negotiable if its payment depends upon a contingency, although that may in fact happen. Id. A note may be negotiable if payable certainly at a fixed time, although subject to a contingency under which it may become due earlier. Id. Ernst v. Steclc- man, 74 Penn. St. Repts. 13. 733. The sale and delivery of a negotiable promis- sory note with endorsement thereon are a warranty of the genuineness of the endorsements. Allen v. GlarTc, 49 Rowell, Vt. 390. PROTEST. 734. Waiver.— The husband being universal legatee of his wife endorsed for her a promissory note. Held, 184 PBOTEST, that he was bound to pay the amount of the note, not- withstanding there was no protest, it being sufficiently established that he had consented in the name of his wife to waive protest in order to avoid costs, and that in fact the wife was only a pret nom to cover the trad- ing of the husband. Berian & McCorMll, 14 L. C. R. 400, Q. B. 1864. 735. Endorser Discharged.— In, an action against the maker and endorser : Held, that the omission to state in a notarial protest that it was made in the forenoon of the day of protest was fatal, and the endorser was discharged. Joseph v. Delisle, et al., 1 L. C. R. 244, S. C. 1851 ; 2319 C. C. 736. Held, that the non-exhibition of the note to the maker at the time of protest, the maker being no- toriously insolvent, will not invalidate the protest, and notice of protest to the endorser vsdll hold them liable, notwithstanding such non-exhibition. Venner v. Fut- mye, et al., 13 L. C. R., 307 ; S. C. 1863. 737. The maker of a note was described in the pro- test, and also in the writ and declaration, as E. B. P., instead of Joseph B. P. Held, that a plea by the en- dorser to the effect that he never endorsed the note described by plaintiff, and that a protest of E. B. P.'s note was not a legal protest of J. B. P.'s note was bad, and would be dismissed. Scullion v. Perry, et al., & L. C. J.. 175, 1 L. C. L. J. 64, S. 0. 1865. 738. Wairer of Notice.— A promise to pay a protested bill of exchange, of which no notice of protest has been given, if made with a knowledge of that fact, is a waiver of want of notice. Moss y. Wilson, 2 Rev. de. Leg. 28 K. B., 1812. 739.— In the case of a protest of a note dated at Mon- treal and payable at a bank in Albany, in the State of New York, a notice of protest mailed at Albany, ad- dressed to an endorser at Montreal, protest being made, and notice mailed according to the laws of the State. Held, confirming court below, that it was not sufficient, inasmuch as the postal arrangements between the two PROTEST. 185 countries required prepayment of the postage, at least from Albany to the line ; but, had the postage been paid, the notice would have been sufficient, as notice of protest must be given, according to the lex loci con- tractus, but the protest itself made according to the law of the place where the note was payable. Howard V. Sabourin, 2 L. C. R. 121, and 5 L. C. R. 45, Q. B. 1854. 740. 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 de- positors at par." Basehou v. Rhodes, 85 Penn. 44. 741. In an action against an accommodation en- dorser of a negotiable note, the fact that the endorser resided at the time in Alexandria, where the note was discounted, and before the note became due he went into the Confederate lines, and was there when the note was 'protested, and at the time of such protest he had no known agent in Alexandria to receive notice of the dishonor of the note, is not of itself sufficient to render the endorser liable. And in such a case, the fact that the endorser had a residence in Alexandria at the time the note was pro- tested, and that a written notice of said protest was left at his residence, is not sufficient to render the endorser liable. 742. In such a case the plaintiff having purchased the note after maturity and dishonor, by purchase at a sale of the effects of a bank which had discounted it, he is not thereby prevented from recovering from the endorser the whole amount of the note, though he paid for it much less than the nominal amount. Mc Yeigh, et al. V. Allen, 29 Grattan (Va.) 588. 743. Notice of Protest addressed to a female en- dorser and beginning "Sir" is bad, and an action against such endorser was dismissed. Seymour, et al. V. Wright, et al., 8 L. C. R. 454, S. C. 1852. But, 186 PEOTEST, Tield, in a later case, to be suflBcient if duly served upon her. Mitchell v. Browne, 9 L. C. J. 168, and 15 L. C. R. 425, C. C. 1865. 7M. There must be evidence of diligence of a pro- test for non-payment of a bill of exchange to charge the drawer. Brent v. Lees, 2 Rev. de Leg. 335, K. B. 1820. 745. Notice of dishonor need not be given by a uotary, it may be given by any holder for himself and in his own language ; but it is not binding, whatever its form, unless the paper has been legally dishonored ; and every endorser is presumed to know what action will bind him and what will not. A letter addressed by the holders of a note to the endorser, describing the note and stating that it was unpaid and that the hold- ers looked to him for payment is a sufficient notice of dishonor. Cromer v. Platf, et al., 37 Mich. 132. 74e. It is incumbent upon a party seeking to charge an endorser, to prove a legal notice, but this, like any other question of fact, is to be settled upon the testi- mony as it is given, and need not be proved beyond the possibility of mistake. Seaton v. Scovill, 18 Kansas, 433. 747. Where the holder, and party to whom notice is to be given, reside at different places, it is generally sufficient if notice is sent by the mail of the day next succeeding the day of dishonor. Id. 748. The holder of dishonored paper may give notice directly to all prior parties, or only to his im- mediate predecessor on the paper. In the latter case, such predecessor has the same time to give notice to his endorser as though he himself had been the holder and had the paper protested. Id. 749. A banker or agent to whom paper has been transmitted for the purpose of obtaining acceptance, or payment, is, so far as the question of notice is con- cerned, to be considered as though he were the real holder, and his principal a prior endorser. Id. 750. Where a promissory note provides that the en- PROTEST. 187 dorsers " waive presentment for payment, protest, and notice of protest and non-payment," the complaint in an action thereon need not allege "presentment," or ■' notice." Henderson v. AcTcelmire, 59 Ind. 540. 751. Waiver of.— Where such note waives notice of non-payment, protest, etc., the complaint thereon need not aver such notice to an endorser. BurrougJis V. Wilson, 85 111. 536. 752. Notice of.— The defendant was sued as endorser on a note. Seasonable notice of its non-payment was sent to his address at Baldwin, where he had formerly long resided ; but at, and for several years preceding the maturity of this note, he lived at Denmark. There were three post-offices in Baldwin, neither of which was designated simply by the name of the town ; but notice of the dishonor of a note maturing earlier at the same bank, addressed to him at Baldwin (as this was) was re- ceived and responded to, without any intimation that it was not properly directed ; and upon inquiry of those likely to know, the notary was told he still lived at Baldwin ; Held, that the plaintiff's allegation of notice was sufficiently proved, since legal notice is not, necessarily, actual notice. Reasonable diligence to communicate information of the non-payment of the note is all that is required, and that was issued in this case. 8aco Nat. BanJc v. Sanborn, 63 Me. 340. 753. Waiver of.— The accommodation endorser of a promissory note wrote the cashier of the bank where the note was made payable, on the day the note fell due, the note then being in the hands of an endorsee for value, and the bank being ignorant of its existence, that he would "waive protest" thereon. Afterwards, the endorsee endorsed the note to the bank for collec- tion, and the bank brought suit thereon against the accommodation endorser. Held, that as at the time the letter was written and received the bank had no interest in or possession of the note, the letter was not, in legal effect, a waiver of notice of protest. Nat. BanTc of Poultney v. Lewis, 50 Vt. 622. 188 PtTKCHASEE. PUKCHASER. 754. Purchasers at public judicial sales or under a quit-claim deed usually buy at their own risk of the regularity of title. McGoren v. Amry^ 37 Mich. 130. 755. With Notice.— A purchaser of land with notice of outstanding equities may protect himself by purchas- ing the title of another who was a 'bona fide purchaser, and this will not make him hold the property as a trustee. Bt. Joseph Mfg. Go. v. Daggett, 84 111. 556. 756. Who is a Bona Fide.— A creditor who makes ad- vances under the security of a deed of trust, in good faith, and without notice of a vendor' s equitable lien for the purchase-money, will be protected as an inno- cent purchaser. He should show that the vendor was seized in fee and in possession of the land. Oerron v. Pool, 31 Ark. 85. 757. Purchase, Option of.— W. conveyed to E. an undi- vided half part of two lots of land, and subsequently received from E. a bond in a penal sum of $4,000, giv- ing W. the privilege at any time at his option within seven years from the date of the bond, to purchase the whole of said two estates for $8,000, provided that on such purchase E. should be by W. exonerated from all liabilities and losses, past and futare, of a firm whereof E. was a member. W. died without having availed himself of the option, and more than three years be- fore the expiration of the time prescribed. E. became his administrator. The widow and children of W. filed a bill against E. , charging fraudulent concealment of the bond. E. produced the bond, denying in his an- swer the charges of the bill, whereupon the complain- ants asked leave to amend the bill by a prayer that E.'s title to the estate in question might be declared that of a mortgage for $8,000 ; that the estate might be sold to satisfy E.'s claim, and that an account might be ordered. Held, that the option of pur- chase given to W. by the bond was neither a chose in PURCHASER. 189 action, nor a transmissible right of property, but a personal privilege in W., and that on his death E. was freed from the bond. Held, further, that a purchase under the option by the administrator of W. must, if made, be for and in the name of W.'s heirs ; but as this might change the succession to W.'s property, W.'s administrator could not be allowed the option given W. Held, further, that in no case could the exoneration required by the bond be given by the admistrator. Newton v. Newton, 11 R. I. .390. 758. Bona Fide.— A person to be a tona ficte pur- chaser without notice, must be without notice of the rights and equities sought to be enforced at the time ■of the payment of the consideration. Marsh v. Arin- ■strong, 20 Minn. 81. 759. Insolvency of Purchaser.— Unless actual posses- sion of goods sold has been delivered to the pur- chaser, the vendor is not deprived of his right of lien as against the assignees of the purchaser, in the event of his insolvency. Where the vendors were also warehousemen of the goods sold under an ar- rangement with the purchasers to pay warehouse rent : Held, that as the goods remained in the pos- -session of the vendors and no actual delivery had been made to the purchaser, the vendor's lien revived upon the insolvency of the vendees. Grice v. Rich- ardson, 3 App. Cas. (Vic. 41-42, Eng. Law Reports), P. C. 319. 760. Purchaser for Talue.— A creditor taking a chose in action as collateral security for a pre-existing indebt- edness is not a purchaser for value. AshtorC s Appeal, 73 Penn. 153. Although a rule to open a judgment and let the de- fendant in to a defence has been discharged in a court of law, the defendant is not precluded from resorting to a court of equity for relief. Id. 190 PtTRCHASE-MONET^RECEIPTS. PURCHASE-MONEY. 761. Purchase-Money.— Where the plaintiff purchased and paid for the land in question, and the deed made to the defendant J., under a verbal agreement that the- plaintiff was to hold the deed, and that, concurrently with taking the deed to J., he and his wife were to ex- ecute a mortgage to the plaintiff to secure the purchase- money ; J. did execute the mortgage, but his wife re- fused to join. Held, that the plaintiff was entitled to judgment for the amount due and that the land be sold to satisfy it. Held, further, that in such case no title vested in J. , and his wife acquired no dower or home- stead rights. Held, further, that plaintiff's demand is for the purchase-money, as against which homestead rights do not prevail. Bunting v. Jones, 78 N. C. 242 ; also Suit v. Suit, 78 N. C. 272. QUANTUM MERUIT. 762. Quantnm Meruit.— Although an action cannot be maintained upon a verbal contract not to be performed within one year, yet when such contract has been fully performed by one party, the other having obtained its benefits, 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 me- ruit for his services. Towsley v. M., New Series, 30' Ohio, 184. RECEIPTS. 763. Lost Note.— An instrument given by the payee of a lost note, upon the execution of another note in its- stead by the maker, stipulating that if the lost note comes to hand it shall be null and void, is a receipt, and may be contradicted or explained by parol evi- dence. Williamson v. Reddish, 45 Iowa, 550 ; also Price V. Mahoney, 24 Iowa, 582. 764. Receipts may be explained or contradicted by KECEIVEE — REDEMPTION. 191 parol evidence. Dunlap's EoSr v. STianJclin, 10 West Virginia, 602. 76.5. Receipt of Bank Check is not payment of ante- cedent debt until it is itself paid. Phillips v. Bul- lard, 58 Ga. 256. RECEIVER. 766. Right to Bid in Property.— A receiver of an insu- rance company, holding notes given to the company and secured by deed of trust, has the rightful power to bid off the property to save a sacrifice. He succeeds to the rights of the company in this respect. Jacobs V. Turpin, 83 111. 424. 767. Where a creditor's bill charges that the debtor haschoses in action, etc., in his possession, and asks for a discovery, and the debtor suffers the bill to be taken as confessed, it is not error to enjoin the debtor from disposing of his property, and to appoint a re- ceiver to take charge of the same. Runals v. Hard- ing, et al., 83 111. 75. 768. Receiver of a Bank, appointed under Gen. Stat. R. I. cap. 140, may bring suit in his ov?n name for a debt due to the bank. De Wolf v. Sprague Manuf. Co., 11 R. I. 380. REDEMPTION. 769. Redemption of Real Estate.— Real estate sold at sheriff' s sale by virtue of a decree of foreclosure of a mortgage thereon, accompanied by a personal judg- ment against the debtor, may be redeemed by the judgment creditor, from the purchaser, where the amount realized by such sale is insufficient to satisfy such judgment. 2 R. S. 1876, p. 220, sec. 1; also, 2 R. S. 1876, p. 228, and notes on pp. 228 to 283. The State, ex rel. &c. v. Sherill, 34 Ind, 57 ; also, Davis v. Longsdale, 41 Ind. 399 ; also, Oreene v. Doane, et al.y 57 Ind. 186. 192 EEPLEVIISr — EEPRESENTATIONS. EEPLEYIN. 770. EeplcTin.— No previous demand upon a tona fide purchaser of a chattel from one who had no author- ity to sell it is necessary to enable the owner to main- tain replevin. Such a person is not lawfully in posses- sion as against the owner. Prime v. Coib, 63 Maine, 200. 771. A sheriff who attempts to sell goods covered by a writ of replevin previously served upon himself or his receiptor, becomes a wrong-doer. MayTiue v. Snell, 37 Mich. 305. 772. Dillinger consigned goods to Moorehead for sale ; he pledged them for a loan to Macky, who knew they were owned by Dillinger : Held, that under the Factor Act of April 14, 1834, Dillinger could recover in replevin without tendering repayment of the loan. Macky v. Dillinger, 73 Penn. p. 85. Moorehead had advanced to Dillinger on the goods before pledging them ; Dillinger demanded them from Macky, who declined to deliver without payment of his loan, saying nothing as to Moorehead' s advance. Dillinger might recover the goods without j)ayment of the advance. Id. 773. Macky gave a property bond and retained the goods : Held, that the amount due to the advance be recouped from Dillinger' s damages. Id. 774. When a party declines to accept payment or performance, except in a way to which he is not enti- tled, he cannot insist that the action is prematurely brought. Id. 775. There is no set-off in replevin, but if the goods are subject to a charge, it can be enforced by way of recoupment. Id. REPRESENTATIONS. 776. Representations.— Damages not recoverable for loss of speculative profits where money has been paid EESCISSION — RETROSPECTIVE. 193 on the strength of mistaken representations. Fitzsim- inons V. Chapman^ 37 Mich. 139. RESCISSION. 777. Rescission of Contract.— 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 had produced and sur- rendered to a referee at the trial certain notes, but had neglected seasonably to return other notes, and the ob- ject was insisted upon, it was held that by leave of court he might resume the notes so surrendered. Spencer V. St. Glair, 57 Hall, N. H. p. 9 ; Oook v. Gilman, 34 N. H. 556 ; Evans v. Oale, 21 N. H. 240 ; Winkley V. Foye, 28 N.H. 513. 778. 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. 779. On a refusal by a vendee to accept goods sold him, the measure of damages is the difference between the contract and the market price at the time of re- fusal. 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 in- herent vice ; the measure of damages is the price paid and interest. Laubach v. Laubach, 73 Penn. 389. RETEOSPECTIVE. 780. Ketrospective Operation of Statutes of Limitation. — Act 145 of 1871 amended the statute of limitations so as to run against Canadian as well as domestic cred- itors, but allowed one year from time when the act 13 194 REVIVOR — SALE. would take effect for bringing suit on all claims ; that it would otherwise bar action, because it clearly fixed the date of limitation. Krone v. Krone, 37 Mich. 308. REVIVOR. 781. EeviTor of Debt— 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 payor 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 secu- rity for the former, the mortgage is not barred until the note is. ScTimucker, et al. v. Sibert, Assignee, 18 Kansas, 104- SALE. 782. Sales.— A " dealer " is one who makes successive sales as a business. A single sale in gross of a stock of liquors, without license as a wholesale liquor dealer, is not an illegal sale avoiding a note given therefor. Overall v. Bezeau, 37 Mich. 506. 7821^. Saleof Goods.— Ob?zi!rac^. — Fraud. — False Pre- tences. — Pawning of Property. — The purchaser of a chattel takes it, as a general rule, subject to what may turn out to be informalities in the title. By a purchase in market overt the title obtained is good against all the world. If not so purchased, though purchased tona fide, the title obtained may not be good against the real owner. Where the original owner has parted with the chattel to A. upon a de facto contract, though there may be circumstances which enable that owner to set aside that contract, the hona fide purchaser from A. will obtain an indefeasible title. The question, there- fore, in many cases will be, was there a contract between SALE. 195 the original owner and the intermediate person. Cun- dy V. Lindsay, Eng. Law Reports, 41-42, Vic. 3 App. Cases, 4.59. 788. Sale under the guise of a renting of personal property passes the title to the property to the vendee. When the transaction shows a sale it does not matter whether the parties intended tlie title to pass or not. The sale being completed by an agreement as to price and terms of payment, and delivery of possession to the vendee, the law, in furtherance of public i)olicy and to prevent frauds, will treat the title as being where the nature of the transaction requires it should be. Greer V. ChurcTi & Co., 13 Bush, Ky. 430. 784. Parties considering sale complete as to price and delivery, title passes ; otherwise not. Flanders & Huguenin v. Mayribard, 58 Ga. 56. 785. While it is true that it is essential to a sale that both parties should consent to it, yet the consent of the former owner need not be expressly given, but may be inferred from the circumstances of the transac- tion. Ketchuni v. Duncan, 96 U. S. S. Ct. 659. 786. Sale of Chattels.— A vendor of goods and chattels who is induced by fraudulent means to part with his property under color of a contract of purchase may disaf- firm the sale and reclaim the property. In such case no title passes to the fraudulent vendee, even though delivery be made ; nor will execution creditors, or pur- chasers, or mortgagees from the fraudulent vendee, ac- quire a title superior to that of the original vendor, unless they be purchasers or mortgagees hona fide and for a valuable consideration. Williamson v. N. J. Southern R. JR. Co., 29 N. J. Eq. 311. 7863^.— In replevin of whiskey, brought by A. against C, there was evidence that A. sold the goods in Cincinnati to B. , who did business in Boston ; that, by the terms of the agreement, the whiskey was to be delivered and re-gauged on the cars at Cincinnati, and, on receipt of an invoice of the whiskey, B. was to send to A. at New York his promissory note for the price, 196 SALE. on three months' time, dated at Cincinnati as of the date of the delivery on the cars, and an invoice and a form of a note dated at Cincinnati, on ninety days, were sent to B. ; that B. did not sign this note, but pledged the goods to C. for a valuable consideration, failed in business, and two days afterwards sent a note to A. in ISTew York, dated at Boston, and payable three months after date ; that A. iseplevined the whiskey in Boston on the day the note arrived in New York, and two days afterwards tendered the note to B. ill Boston, who refused to receive it. Held, that the evidence would warrant the jury in finding that the sale was upon a condition which was broken, and that there had been no waiver of the condition ; and that, if so, B. acquired no title to the goods which he could trans- ier to C. Armour. \. Pecker, 123 Mass. 143. 787. Personal Vro]^eHj.— Purchase of one in Posses- sion. — Possession of personal property is not title. It is prima facie evidence of title, but nothing more, and Tvill not protect one who buys on the faith of it against the holder of the title. Ketchum v. Cummings, 53 Miss. 596. 787j^. A sale of goods in the hands of a bailee is good against an execution-creditor, if the vendor do not retake possession. Worman v. Kramer, 73 Penn. 378. 788. Faust's property was about to be sold by the sheriff ; an attorney by arrangement with Faust and a judgment -creditor agreed to buy it for Faust ; under this it was struck down to the attorney ; it was after- wards agreed that Haas, another judgment-creditor, whom the proceeds would reach, should pay the pur chase-money to the sheriff, take the deed and give Faust a time named to repay him. Under this arrange- ment the deed was made to Haas under the direction of the purchaser ; Haas claimed to hold the property : Held, that he was trustee ex maleficio for Faust. Where artifice or trick are resorted to to procure prop- erty at sheriffs sale at an under value, the purchaser SALE. 197 takes as trustee for person misled. Faust v. Haas, 73 Penn. St. 295. 789. A sale of goods which is not accompanied by immediate delivery, and followed by actual and con- tinued change of possession, as required by section 14 of Statute of Frauds, R. S. 339, is void as against the creditors of the vendor. McOraw v. Welch, 2 Colorado, 284. 790. Where a creditor, who has bought certain movables from his debtor, by crediting the latter on his account with the price of the movables, instantly re- sells the property to the debtor, the sale will be valid, as between them, whether any delivery was made to the creditor or not. Edward J. Gay & Co. v. Crlch- low & Donelson, et al., 29 La. 122. 791. Implied Warranty. —i/ai^en^ defect.^T^hQ vendor of an article sold for a particular purpose does not im- pliedly warrant it against latent defects to him un- known, and caused by the unskillfulness or negligence of the manufacturer or previous owner, except where the sale is in itself equivalent to an affirmation that the article has certain inherent qualities inconsistent with the alleged defects. Bragg v. Morrill, 49 Row- ell, Vt. p. 45. 792. On a sale of personal property by a debtor, there must be a real, permanent delivery and change of possession, to enable the purchaser to hold the same against an officer levying an execution upon it for the debt of the vendor. Allen v. Carr, 85 111. 388. 793. Conditional.— A sale and delivery of goods, on condition that the property is not to vest until the pur- chase-money is paid or seciired, does not pass the title to the vendee until the condition is performed. Ault- inan v. Mallory, 5 Neb. 178. 794. l^axvsiniy.— Implied Acceptance. — Representa- tions by the vendor, of the quality of the thing sold or of its fitness for a particular purpose, intended as a part of the contract of sale and relied upon by the vendee, constitute a contract of warranty. And when 198 SATISFACTION — SECURITIES. there is such contract, the vendee has a right of action, by proving the contract and its breaches, and is under no obligation to return the property or to give notice of its defects ; his retention and use of it, and neglect to give notice of its defects, being material only upon the question of damages. The court charged that if plain- tiff kept it longer than was reasonably necessary to in- spect and vest it in the respect counted upon, without giving notice of any defect, he had impliedly accepted it. Richardson v. Orandy, et al., 49 Rowell, Vt. 22. SATISFACTION. 795. Satisfaction.— Payment of part of a debt "without release under seal, although received in full satisfac- tion, will not discharge the debt. Hartman v. Banner, 74 Penn. St. 36. SAVINGS BANK. 796. Sayings 'R&nk.—Loss of Deposit BooTc. — A de- positor in a savings bank, one of whose by-laws, con- tained in his deposit book, provides that, ' ' as the offi- cers of the institution may be unable to identify every depositor, the institution will not be responsible for any loss sustained, when a depositor has not given notice of his book being stolen or lost, if such book be paid in whole or part, on presentation," cannot maintain an ac- tion against the bank for an amount which, in good faith and without notice that the book had been stolen, it paid to a person who, fraudulently personating the depositor, presented the book and obtained the amount. Goldrick v. Bristol County Savings Bank, 123 Mass. 320. SECURITIES. 797. Securities.— Stolen.— The owner of negotiable se- curities which have been stolen may follow them and reclaim them, in whose hands soever they may be SECUKITY- -SET-OFF. 199 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 busi- ness and for value. MoMnson v. Hodgson, 73 Penn. St. 203. In trover for such securities, merely showing that they were in possession of another from whom defend- ant or Ms immediate bailor received them is not a de- fence. Id. A holder's possession is prima facie evidence of ownership, because the presumption is that it was honestly acquired. Id. SECURITY. 798. ^Qnviritf.— Confession of Judgment by Princi- pal. — A confession of judgment by a principal, has on the surety only the force of a private agreement be- tween the principal and his creditor. Even after a judgment against the principal, any agreement 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 & Rosen'f'eld, 29 La. 732. 799. Security.— When the owner of a note holds col- lateral security for the same, the release of such secu- rity 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. SET-OFF. 800. Set-off.— H., being indebted to W. on a note under seal for $109, took from a third party an assign- ment of a note of W. for $58.83, with the knowledge of W., and with the understanding between the par- ties that it would be credited against the note for $109. Held, that the equity to such credit attached to the note for $109, and followed it into the hands of an as- 200 SET-OFF. signee, though without notice. Hall v. Hiclcman, 2 Del. 318 ; also Oliver, use of Oriffith v. Lowry, 2 Har- ring. 467. 801. Under the Gen. Statute, c. 130, sec. 3, a demand for money paid cannot be set ofE unless it is a sum that is liquidated, or one that may be ascertained by calcu- lation. Taft V. LarMn, 123 Mass. 598. 802. Debts are not mutual when one is by the de- fendants as principal and surety, to the plaintiff as trustee for a minor, and the other is by plaintiff as an individual to the defendants as partners. Vason, et al. V. Reall, Trustee, 58 Ga. 500. 803. The assignee of a mortgage, unless the mort- gagor has estopped himself, holds it subject to all the equities to which it was liable in the hands of the as- signor. The mortgagor having given a certificate that he has- no defence, is estopped from setting up a defence against an assignee. 804. Any subsequent assignee may avail himself of a certificate of "no defence," given to the first, if he shows that he or a prior one under whom he claims, wa& an assignee for value without notice. 805. Burns, through an agent of a trust company,, borrowed from them on a note and assigned stocks, &c., as collateral ; the agent borrowed from Ashton, and afterwards took an assignment of Burns' s note and collaterals. Held, that Ashton took the collaterals subject to the equities between Burns and the com- pany. AsTitorC s Appeal, 73 Penn. 153. 806. Set-off.— Whenever a demand is for damages,, which the law is capable of measuring accurately by a pecuniary standard, it is a proper subject of set-off' under our statutes. Sledge v. Swift, Murphy & Co.y 53 Ala. 110. 807. The right of set-off in an action is governed! by the law of the place where the action is brought. In an action brought in Ohio by the endorser against the maker of a promissory note, paya- SET-OFF. 201 ble to order, executed, in Kentucky, and endorsed be- fore due, the maker cannot set-ofl a debt due to him from the payee,notwithstanding the Kentucky statute, which declares such notes, " assignable so as to vest the right of action in the assignee," but provides that such assignment shall not "impair the right to any . . . off-set the defendant has or might have used " against the payee. Second Nat. BanJc of Cmcinnati V. Hemingray, 31 Ohio, 168. 808. A set-oflf may be pleaded in an action brought by a receiver of an insolvent national bank. Where usurious interest is reserved or charged on a note or bill discounted by a national bank, the entire interest reserved or charged will, in an action on the note or bill, be adjudged forfeited. Hade v. McVay, Allison & Co., 31 Ohio, 231. 809. Deposits in Bank.— A voluntary assignee allowed certain bank deposits to remain in the name of the as- signor, and without bringing suit for them, after the maturity of notes held by the bank on which the as- signor was liable as endorser : Held, that the bank could retain the deposits in set-off against the notes, as by Gen. Stat. R. I. cap. 202, sec- 14, the right of set- off is determined by the state of the claims at " the time of the commencement of the action." Nightin- gale V. Ohafee, 11 R. I. 609, 810. Legacy and legatee.— A legacy, presently paya- ble, cannot be set-off in equity against a debt of the legatee to the estate, not yet due. Hayes, AdrnW v. Hayes, 2 Del. 191. 811. Of Debt due the Former.— In a suit against a party and his sureties, a debt or demand due from the plain- tiff to the principal defendant may be set-off. Himrody et al. V. BaugJi, 85 111. 435. 812. Nominal Vaxi^ers.— Demand against one. — A demand against one person cannot be set-off against him and his nominal partner in a suit by them on a note made to the firm. A set-off must be against all the partners. Jones v. Howard, 53 Miss. 707. 202 SHAEEHOLDEES — SIGNATTJEE. 813. Partnership.— Where a surviving partner pur- chases from the administrator of his deceased partner the interest of the latter in the partnership property, as assets of t-he estate, he cannot, in a suit to collect the purchase-money, set off a debt due him from such decedent in his lifetime, even if such set-off grew out of a settlement of partnership matters. Welhorn v. Coon, 57 Ind. 270. SHAREHOLDERS. 814. Liabilities.— Certain shares in a company incor- porated by letters patent, issued under 27 and 28 Vict, ch. 23, were allotted, by a resolution passed at a special general meeting of the shareholders, to themselves, in proportion to the number of shares held by them at that time, at 40 per cent, discoiint, deducted from their nominal value, and scrip issued for them as fully paid up. G., under this arrangement, was allotted nine shares, which were subsequently assigned to the appel- lant for value as fully paid up shares, and he accepted them in good faith as such, and a year afterwards be- came a director in the company. The shares appeared as fully paid up on th« certificates of transfer, whilst on each counterfoil in the sharebook the amount men- tioned was " Shares, two, at $300=$600." Held, re- versing the judgment of the Court of Appeal for On- tario, that a person purchasing in good faith, without notice, from an original shareholder, under 22 and 28 Vict., ch. 23, as shares fully paid up, is not liable to an execution-creditor of the company whose execution has been returned nulla iona, for the amount unpaid upon the shares. (The Chief Justice and Ritchie, J., dissenting.) McCraken v. Mclntyre, 1 Canada S. 0. 479. SIGNATURE. 815. Signature.— i?eM, that the genuineness of the signature to or endorsement of a note ceases to be pre- SIGNATURE 203 sunied the moment the defendant denies it in his pleas supported by affidavit, and the plaintiff must make proof of the same ; and that in the present case the plaintiffs were guilty of neglect in accepting the note without sufficient caution. Dorwin, et al. v. Thompson, 3 C. L. J. 180, S. C. 1867, Ca. 816. Proof of.— If a defendant by exception admits his signature to a note of hand, and plead a term for payment, it is not necessary for the plaintiff to prove the signature, even though the exception be dismissed and there is a defense en fait. YalUeres v. Roy, 2 Rev. de Leg. 335, K. B. 1820 ; 1223 C. C. & 145 C. C. P. Ca. 817. Signature on Check Forged.— A dealer with a bank trusting to his clerk's report that his bank book was correct, omitted to examine it, and did not discover that checks, forged in his name by the clerk, had been paid by the bank, charged in the book, and cancelled, and returned with it, until some months after their payment : Held, that he was not estopped from deny- ing the genuineness of the checks. Weisser v. Den- ison, 10 N. y. Ct. of App., 1854 (6 Seld.), 68. 818. Signature ; Genuineness ot.—How proven. — Stan- dards of comparison, to be used by experts upon the trial of an issue as to the genuineness of a signature when not a paper already in the case or admitted to be genuine, are not admissible for that purpose, unless they are clearly proved by witnesses who testify direct- ly to their having been written by the party whose sig- nature is in question. 819. Where a receipt was offered as such standard of comparison, and a witness testified that the defend- dant gave him a receipt that looked very similar to the one offered, but that he could not positively say it was the identical one offered in evidence : Held, that the evidence was too uncertain to warrant the admission of the paper as a standard of comparison. Pavep v. Pavep, 30 Ohio, 600. 204 STATED ACCOUNT. 820. In an action by the endorsees of a promissory note against the alleged makers, in which the defend- ants by their plea denied their signature, Held., con- firming courts below, on evidence that one of the firm by whom the note purported to be signed had therein admitted that the signature was that of the firm, and had been written by himself, that as there was no clear . and legal proof of want of genuineness in the signa- ture the admission could not be set aside on mere pre- sumption arising from knowledge of the maker' s hand- writing, and also that another promissory note signed by the firm could not be sued for the purpose of creat- ing a standard of comparison of handwriting, such signature not having been itself established to be gen- uine. Reid, et al. v. Warner, 17 L. C. R., 485, Q. B. 1867, Ca. 821. Verification of.— Where the signature to a bill or note is denied, experts may be appointed on motion of one of the parties, and their report promulgated as conclusive. Lor dr. Laurin, et al., 9 L. C. J. 171, and 15 L. C. R. 452, C. C. 1865, 322 et seq. C. C. P. Ca. STATED ACCOUNT. " 822. Stated Accounts were given in an answer in equity, and the benefit thereof claimed as if jjleaded. They were supported by sufiicient evidence. Held, the burden of proof was on the party impugning the accu- racy of the accounts. Seamans v. Burt, 11 R. I. 320. 823. What constitutes, is a matter of evidence. Setting down a plea of, for argument, is equivalent to a de- murrer. Allen V. WoonsocTcet Co., 11 R. I. 288. 824. The fact that a balance is shown in an account and claimed in a suit, does not make it less an open account. The term " open account" is used in contra- distinction to a stated account, wherein the account is closed by an assent to its correctness by the party charged. Wliittlesey v. Spofford, 47 Texas, 13. STATUTE OF LIMITATIONS. 205 STATUTE OF LIMITATIONS. 825. Statute of Limitations.— A promise by M. that "he would see his brother and would pay the debt," suffic- ient to remove the bar of the statute of limitations. A promise relied on to avoid the statute of limitations, made to an attorney, is in law a promise made to the principal, and can be declared on as such. Kirhy v. Mills, 78 N. C. 124. 826. Residence and not citizenship is contemplated in the statute prescribing limitations upon the time of bringing actions, and the statute runs in favor of a debtor who has his domicile in the State. The statute ceases to run when the debtor becomes a non-resident, but revives upon his demise. Satage v. Scott, et al., 45 Iowa, 130. 827. Part payment of the consideration of a parol promise not to be performed within the year, does not withdraw the agreement from the operation of the statute. Reinheimer v. Carter, 31 Ohio, 579. 828. The statute of limitations in force where the remedy is sought, and not that existing where the con- tract was made, must govern the remedy. Sampson V. Sampson, 63 Me. 329. 829. Statute of limitations runs against an infant having only color of title to the land. Soule v. Barlow, 49 Rowell, Vt. 329. 830. Statute of limitations can apply to future transactions only, unless they are expressly given effect on previous transactions, or unless some of their terms cannot be met otherwise. Perrin v. Kellogg, 36 Mich. 316. 830K- A credit upon an account after the cause of action on the same is barred by the statute of limita- tions, will not be treated as part payment thereof, un- less shown to have been so intended by the parties. Kaufman v. BrougMon, 31 Ohio, 424. 831. Accrual of, After statute begins to run. — Where the statute of limitations has begun to run during the life 206 STATUTE OF LIMITATIONS. of the devisor, no disability in the devisee will arrest it. Bozeman, et al. v. Browning, et al., 31 Ark. 364. 832. Under the Gen. Sts. c. 155, sec. 14, a payment of interest on a promissory note by the principal does not take the debt out of the statute of limitations as against a surety. Faulkner v. Bailey, 123 Mass. 588. 833. Part payment upon a bond made by the ad- ministrator of one of the joint' makers vsrithin the statu- tory period will prevent the running of the statute of limitations in favor of the remainder. The County of Vernon to use of School Fund v. Stewart, 64 Mo. 408. 834. Statute of Limitations begins to run on an admin- istrator's bond from the expiration of four and a half years after issuing letters of administration. Biddle v. Wendell, 37 Mich. 452. 83.5. Plaintiff, in order to remove the bar of the statute of limitations, having shown that defendants were non-residents of the State wherein the cause of action accrued, it was held, that the burden was on de- fendants to show that they had owned attachable prop- erty vsdthin the State. Rixford v. Miller, et al., 49 Kowell, Vt. 319. 83«. If money is loaned, to be repaid on demand, and no note or obligation is given in writing to repay it, the statute of limitations commences running from the time of the loan. When the statute of limitations holds, the debt cannot be revived, except by a promise in writing signed by the debtor. Estate of Galvin, 51 Cal. 215. 837. A payment by one of several makers of a joint and several promissory note, were in fact partners when they signed the note, will take it out of the statute of limitations as to the others, if the note be a partner- ship debt, and the payment made out of partnership funds. Mix v. Shattuck, et al., 50 Vt. 421. 838. Payments made by the treasurer of a partner- ship from partnership funds, and by him endorsed on STATUTE OF LIMITATIONS. 207 a partnership note, take the note out of the statute of limitations, in the absence of any showing that he acted without authority and without duty. Walker V. Wait, etal., 50 Vt. 668. 839. A partial payment of a debt, replied to the statute of limitations, raises only a prima facie pre- sumption that such payment is an admission of con- tinued indebtedness. Strong v. The State, ex rel. &c., 57 Ind. 428. 840. In an action on account for money loaned, where the six years' statute of limitation is pleaded, a reply that such money is part of a mutual running account, remaining unsettled, and extending up to the time of bringing the action, is sufficient on de- murrer. Harper v. Harper, 57 Ind. 547. 841. As to Married Women.— Since the passage of the Married Woman's Act of 1861, the statute of limitations runs against a married woman the same a against a. feme sole. The expression in Morrison v. Norman, 47 111. 477, and Noble v. McFarland, 51 111. 226, to the effect that the Married Woman's Act of 1861 has no effect upon the saving clause in the limitation laws, is over- ruled. Cortner, et al. v. Walrod, 83 111. 171. 842. The payment by the principal, year by year, of the interest on a joint and several promissory note, will prevent the statute of limitations from attaching to the note in favor of the surety. The rule on this subject, laid down in Ellicott v. Nicols, 7 Grill, 86, has been the accepted law of his State for nearly thirty years, and in the absence of legislation to the contrary, it is not to be questioned. Schindel v. Gates, 46 Md. 604. 843. An acknowledgment of a debt, made not to the creditor, buc to a stranger, does not avoid the run- ning of the statute of limitations. SchmucJcer v. Sihert, 18 Kansas, 104. 844. The presumption that a bond has been paid Avhich arises after a lapse of twenty years, has not been changed or abolished by the passage of the act of limitation to suits on bonds. Such presumption is not 208 STATUTE OF LIMITATIONS. a legal bar ; it is a presumption of fact which, must be held to be conclusive, unless rebutted by evidence showing satisfactorily that the bond has not been paid, or furnish good and sufficient reasons why longer for- bearance has been given. Hale, et al. v. Parle's exW., 10 West Va. 145. 845. A promise by a member of a late partnership, made after dissolution and before a suit is barred by the statute of limitations, to pay a partnership debt, will not prevent the running of the statute so as to «stop the other partner from availing himself of the defence of the statute as against the original cause of action ; and this whether the creditor was aware of the ■dissolution or not. Tate v. Clements, 16 Florida, 339. 846. In order to obtain the benefit of the statute of limitations, a defendant must insist on it as a bar to his answer. If, instead of so doing, he simply denies the allegations of the petition, he cannot, upon the trial, also insist upon the bar of the statute. Townsley v. Moore, 80 Ohio, 184. 847. A debt was due October 6th, 1862 ; suit was brought October 6th, 1868. Held, not barred by the statute. When suit is brought within six years after the day on which the cause of action arose, that day is to be excluded from the computation. Menges v. FoicTc, 73 Penn. St. 137. 848. The receipt for nine hundred dollars, borrowed, to be returned "when called for," created a cause of action from its date, and against it the statute ran from the time of its execution. The mere removal of a debtor, without communicating to his creditor the place of his new domicile, does not constitute such a fraud as will stop the running of the statute. Bhorn v. Zim- ^elman 47 Texas, 503. 849. The act of 1868, ch. 357, provides, that "In actions hereafter brought, where a party has a cause of action of which he has been kept in ignorance by the fraud of the adverse party, the right to bring the suit shall be deemed to have first accrued at the time at STOCK AND STOCKHOLDERS. 209 which such fraud shall, or with usual and ordinary dil- igence might have been known and discovered." Held^ 1st. That it was not thereby meant that in all cases a party must commit a fraud distinct from, and inde- pendent of the original fraud, for the purpose of keep- ing the injured party in ignorance of his cause of ac- tion, nor that the mere concealment of the fraud is in- sufficient. 2d. That where one practices fraud to the injury of another, the subsequent concealment of it from the injured party is in itself a fraud, and if he is thereby kept in ignorance of his cause of action, he is kept in ignorance by "the fraud of the adverse party." Wear v. Skinner, 46 Md. 257. 850. To remove the bar of the statute of limitation, plaintiff introduced a letter from defendant, in which defendant "in regard to settlement, that he was ready any day after that week, and willing to leave it out to be settled, but that he thought it would be better to settle it themselves, if they could," and that he did not see where plaintiff got his statement of what had been put upon the farm ; and asked when plaintiff would "look the business over." Held, that the letter was an admission of the existence of an unsettled ac- count, and an expression of willingness to settle it, un- accompanied by an expression of unwillingness to pay the balance that might be found due, and that it took plaintiff"' s claim out of the statute. Bliss v. Allard, 49 Rowell, Vt. 350. STOCK AND STOCKHOLDERS. 851. Stock.— As between a corporation and corporator, the stock-book is evidence of their relation ; the certi- ficate is secondary evidence. Assignment of a certifi- cate is only an equitable transfer, and must be pro- duced to the corporation and a transfer made. Bank of Commerce^ s Appeal, 73 Penn. St. 59. 852. Stock Pledge.— Stock was pledged as collateral for a note ; the pledgee took a mortgage as further se- curity ; the stock at the time was of greater value than 14 210 STOCK AND STOCKHOLBEES. the amount of the mortgage ; the pledgee had not the stock during the pledge, so as to re-deliver on redemp- tion. The mortgage was to be credited with the value of stock when executed. AsMon^s Appeal, 73 Penn. 143. 853. Stock.— An agreement for a valuable considera- tion by A. to purchase from or sell to B., at the option of the latter, a certain number of shares of stock within a limited time at a specified price, is not per se a gam- ing contract. An illegal intent will not be presumed ; and in the absence of proof that the parties were merely- speculating upon the fluctuations in the price of the stock, without any intent that A. should deliver or ac- cept, but simply should pay differences, the contract is valid and may be enforced. Story v. Soloman, 71 N. Y. 420. 854. Stock 'Brokers.— Agreement to carry Stock on Margin. — Right to Sell when Margin not kept good. — Evidence as to Gircumstances under which written Instrument was executed. — Nonsuit. — It -is competent for a party to show any facts and circumstances sur- rounding the making of a contract, which would en- able the jury to determine the subject-matter to which the contract was in fact applicable. It is an elementary rule of construction that every written instrument should be interpreted in the light of the circumstances surrounding its execution, and it is error for the court to exclude evidence of the circumstances under which the instrument was executed. It is only where there is no evidence in law, which, if believed, will sustain a verdict, that the court is called upon to nonsuit. BicTc- ett V. Taylor, 55 Howard, N. Y. 126. 855. Stockholder. —If any one stockholder is re- quired to pay debt due by the corporation, he is en- titled to contribution from all the other stockholders whose subscriptions are unpaid. If any stockholder V7ho has not paid up his subscription claims to be a creditor of the corporation, his unpaid stock is liable for the debt, and he cannot recover from another stock- STOCK AND STOCKHOLDBES. 211 holder the full extent of Ms claim. By the act of 1872, oh. 325, sec. 59, all the stockholders of a corpor- ation are severally and individually liable to the cred- itors of the corporation of which they are stockholders, to an amount equal to any unpaid subscription held by them respectively. Weber v. Fickey, 47 Md. 196. 856. A person is presumed to be the owner of stock when his name appears on the books of a company as a stockholder ; and, when he is sued as such, the burden of disproving that presumption is cast upon him. TurnbuU v. Payson, 95 U. S. 418. 857. A party who made a contract with an organi- zation which had attempted irregularly to create itself into a corporation, and which acted as such, or who subscribed to its capital stock, cannot, in a suit by the corporation, defend himself against a claim growing out of such contract or subscription, by alleging the irregularity of such organization. QTiubb v. Upton, 95 U. S. 665. 858. A subscriber to the capital stock of a railroad corporation, who has failed to pay for the shares sub- scribed for, as required by the terms of his subscrip- tion, is properly chargeable with interest from the time of the default, and cannot compel the company to issue the stock until not only the principal but the interest is paid. Oould v. Town of Oneonta, 26 Sick- els (71 N. Y.) 298. 859. Stockholder.— J.* a debtor restrained from trans- ferring Ms stock. — Under articles of association which had been adopted as part of the charter of the bank it was provided that so long as a stockholder might re- main indebted to the bank, his stock should not be transferable. Held, that the defendant was not liable in damages for refusing to permit the endorser, while still remaining liable on his endorsement, to transfer his stock on the books of the bank. McDowell v. Bank ofN. &B., 2 Del. 1. 860. Stockholders. — Liability of, for Corporation Debts. — The Michigan Statute (Comp. L. sec. 2852) 212 SUBEOGATION. •does not make individual stockholders primarily liable for corporation debts. The liability of a stockholder ior a corporation is discharged by the creditors' ex- tending the time and accepting the note of the corpor- ation. Hanson v. DonJcersley, 37 Mich. 184. SUBKOGATION. 861. Snbrogation. — How and to what extent allowed. — JPrincipal and security. ^Complaint. — Demurrer. — It seems to be a settled rule of equity that if A. owes B. and he and C. are bound for it, and A. gives C. a anortgage or bond to indemnify him, B. shall have the "benefit of it to recover his debt. But a private arrange- ment as to liability of securities, as between themselves, •comes neither within the rule nor the principle upon which it rests. 862. The complaint alleged that the plaintiffs, who are bankers, issued letters of credit to the Atlantic De Laine Co. Hoyt, Sprague & Co. guaranteed to plain- tiffs that the De Laine Co. would keep its contract, and in default thereof H., S. & Co. would hold plaintiffs harmless of loss. E. H., who was a partner of the iirm of H., S. & Co., guaranteed to his said firm the payment of any and all sums of money which should remain due and owing to said H. , S. & Co. after all the property of the Atlantic De Laine Co. should have l)een applied to the payment of the debts of said Co., the intention of said guaranty being to secure to H., S. & Co. the payment in full of any ascertained balance of account due them by said Atlantic De Laine Co., and in case of his death his personal representatives were to pay such ascertained balance, for which he "would be liable under the above guaranty, without de- lay, out of his assets in their hands applicable to the payment of his debts. The plaintiffs ask as relief that the balance of account due to H., S. & Co. from the Atlantic De Laine Co. may be ascertained and deter- mined, and that the plaintiffs may be adjudged to be SUNDAY CONTRACTS AND SALES. 213 subrogated to all rights of saidH., S. & Co. to collect the said balance so to be ascertained from the executors of E. H., and that said executors be directed to pay the assets in their hands applicable to the payment of the debts of said E. H. to the plaintiffs, to the extent necessary to satisfy their claims and demands. On de- murrer to the complaint by the executors of E. H. Held, that the action would not lie. E. H. was, in no just sense, a principal. The only principal was the At- lantic De Laine Co. H., S. & Co. were sureties. Held, further, that H.'s guaranty was to secure an ascer- tained balance, and it is only when all the property of the De Laine Co. shall have been applied in payment of its debts that, within the terms of the guaranty, the balance becomes ascertained. Morgan, et al. v. FrancJc- lyn, 55 Howard, N. Y. 244. 863. Subrogation of surety by payment.— A surity who pays the debt of his principal is subrogated to all the remedies of the creditors as against the principal, or others who become liable for the debt. Talbot, et al. v. Wilkins, et al., 31 Ark. 411. SUNDAY CONTRACTS AND SALES. 864. Sunday Contracts.— A written contract made on Sunday, but bearing the date of another day of the week, may be transferred, and will be enforced in the hands of a transferee in good faith and without notice. Johns V. Bailey, et al., 45 Iowa, 241. 863. A contract by a livery stable keeper to hire a horse on Sunday, for purposes of business or pleasure, is void ; otherwise, if it is for purposes of charity or necessity, etc. Stewart v. Davis, 31 Ark. 518. 866. A promissory note or agreement in wiiting, dated on Sunday, in payment of a horse purchased on the same day, is null and void, under 45 Geo. 3. L. C. R., 221, S. C. 1859. A promissory note, payable to order, may be validly made on the Lord's day, com- 214 SURETIES AND SURETY. monly called Sunday. Kearney v. Kinch, et al., 7 L. C. J., 31 S. C. 1862. 867. The defendant sold a horse to the plaintiff on Sunday ; the plaintiff gave his bank check for the price of the horse on the same day ; the defendant at the same time deposited a bill of sale of the horse with a third person, to be delivered to the plaintiff when the check was paid ; the check was paid, and the horse and bill of sale were delivered, all on a secular day after- wards. Held, that an action of assumpsit to recover back the price paid for the horse on account of a deceit practiced in the sale would not lie, because based upon a transaction tainted with illegality. Plaisted v. Palmer, 63 Me. 576. SURETIES AND SURETY. 868. Sureties, not having paid the debt for which they are bound, are not creditors of their principal. The surety' s liability for his principal is not a valuable consideration, as against creditors of the principal, for a bond conditioned for the payment of a sum of money as a debt. Jeferson v. Tunnell, et al., 2 Del. 135. 869. Contribution frbm Estate of Co-surety.— A., B. and C. were co-sureties ; C. died, and A. and B. were forced to pay the debt after the administration on the estate of C. had been settled, and more than two years after the grant of letters. ITeld, that they could sub- ject assets descended to the heir to contribution. Wil- liams, et al. V. Ewing & Fanning, 31 Ark. 229. 870. Sureties.— The sureties on a joint and several bond, given by them with A. and B. as principals, to dissolve the plaintiff's attachment of "the goods and estate of the said A. and B.," the condition of which is that A. and B. shall pay to the plaintiff "the amount, if any, which he shall recover in such action." are not discharged by the discontinuance of the action as to A. Poole v. Dyer, 123 Mass. 363. 871. 1st. To entitle a surety to an assignment and SURETIES AND SUEETT. 215 execution against his co-sureties under sec. 7 of art. 9 of the Code, vol. 1, it is incumbent upon him not only to satisfy the judgment, but to pay the wliole amount of it. Wilson, et al., Adrri'rsY. Hidgely, et al., 46 Md. 235. 2d. Whilst it is an undoubted proposition that the liability of the surety is not to be extended by impli- cation beyond the terms of his written contract, by which his responsibility is to be measured, the bond constituting such contract must have such construc- tion given to it as to carry out the intention of the par- ties thereto, and in this respect there is no difference between such contract and any other. Engler v. Peo- 'ple's Fire Ins. Co., 46 Md. 322. 872. Where all the stockholders of a corporation give their joint and several note, for money loaned to it, they are co-sureties as between themselves, in pro- portion to the relative amounts of stock owned by them respectively. Goburn v. WheelocJc, 34 N. Y. 440 ; S. C, 42 Barb. 267. 873. A surety paying a judgment against his prin- cipal and himself will be substituted to the lien of the judgment upon land in the hands of a bona fide pur- chaser. See Judgments, No. 3, and Edison v. Huff, et al., 29 Va. 388. 874. A bond on which the principal and surety are "both bound, one paid by the surety in the lifetime of the principal, without assignment by the creditor, oi agreement to assign, is forever dead as a security, as well in equity as at law. There can be no subrogation in such a case. Cromer v. Cromefs AdrrCrs, 29 Va. 280. 875. Surety.— Where one person becomes surety for the payment of money by another, who is himself a surety for a third person, they are not co-sureties ; and on payment of the principal obligation by the first surety, the secondary one is discharged. Remington V. Siaats, 1 S. C. 394. 876. Where a party, when asked to sign a note. 216 StJEETIES AND SURETY. as surety, refuses unless another person will first execute the same, and the principal maker forges the name of such other person, and thereby induces the party to sign, and procures money of an innocent party who has no notice of the fraud, the fact of the forgery and the fraud will not release the surety so executing the same. The case of Seely v. The People, <&c., 27 111. 173, is departed from so far as it conflicts with the rule as above laid down. Stoner V. MilUMn, et al, 85 111. 218. 877. Surety on a Promissory Note.— A verbal notice by a surety on a promissory note to the holder thereof, to pro- ceed at once to collect the note of the principal, ai^d a verbal agreement by said holder so to do, do not waive the notice in writing required by the statute, and a fail- ure to proceed according to the verbal agreement will not operate to release the surety. Qhrisman v. Tattle, 59 Ind. 155. 878. An extension of the time of payment of a promissory note, upon the consideration that the maker will annually pay interest op the note at the rate stipulated therein, will not release the surety. Id. 879. Surety.— A surety cannot be held under a judg- ment void as to his principal. McGloskey, Bigley & Co. V. Wingfleld & Bridges, 29 La. 141. 8791^. ^w^ty— Released. — The surety of an adminis- tratrix who fails to perform her duties as prescribed by law, has a right to be released from his bond. Sanders V. Adeline Edwards, 29 La. 696. 880. A mortgage was given to secure the payment of notes ; their time of payment was extended by the holders, there being no evidence of a consideration for such extension. Held, that this did not discharge the surety. Zane v. Kennedy, 73 Penn. St. 182. 880>^. An agreement without consideration to give time to a debtor is not binding on the creditor, and would not prevent the surety from paying the debt and seeking reimbursement from the principal. Id. 881. A surety, who holds several securities by way StTEETIES AND SURETY. 217 of indemnity, may resort to either of them for pay- ment. Muller V. Dows, 94 U. S. 444- 882. Married Woman, can contract no liability as surety for her husband, nor make a mere personal ob- ligation not connected with, nor chargi"ng property, nor bind herself by mere personal promise jointly with her husband, or as his surety. A husband cannot sue his wife at law or in equity to enforce a purely execu - tory contract. . Jenne v. Marble, 37 Mich. 319 ; Kitchell V. Mudgett, et al., 37 Mich. 81. 883. Surety.— Part payment of a debt already due is not a sufficient consideration for an agreement to extend the time for the payment of the residue. Turnbull v. Brock, 31 Ohio, 649. 884. A surety who takes of the debtor a mortgage for his indemnity as such surety, is to be regarded in equity as a bona fide purchaser within this rule, and will be protected to the extent of his liability as surety. Such mortgage executed to one or more of several sureties on the official bond of an officer, inures to the benefit of all the sureties, as well to those who sub- sequently become such under an order of court re- quiring "additional sureties" in pursuance of law, as to those who were sureties at the date of the mort- gage. BanJc V. Teeters, 31 Ohio, 36. 885. A bona fide purchaser of a debtor's land from a fraudulent vendee, without notice of fraud, or of the rights of the creditor, acquires an equity superior to that of a creditor, who obtained a judgment against the debtor, and levied his execution on the land, after the date of the fraudulent sale, and prior to that of the bona fide purchaser. Second National Bank v. Teet- ers, 31 (De Witt) Ohio, 36. 886 An undertaking by an infant as surety for the stay of execution is not void, but only voidable, and when ratified by him after arriving at majority, be- comes a valid and enforceable contract. Harner v. Dipple, 31 Ohio, 72. 887. Surety or Endorser of a B.inkrnpt is released from 218 SUEETIES AND SUEETT. liability by the bankrupt's payment of the debt to the creditor who accepts payment in frand of bankruptcy law, without the consent of the surety or endorser, although the assignee of the bankrupt may recover the amount so paid of the creditor. The judgment in favor of the assignee against the creditor establishes conclusively that the payment was accepted, with im- plied notice of the bankrupt' is insolvency and of his intention to defraud the bankrupt, act. Northern BanJc of Ky. v. GooTce, 13 Bush, Ky. 340. 888. Surety.— A security taken by one of several co- sureties, to indemnify him against the joint liability, inures to the benefit of all. Elwood v. Deifendorf, 5 Barb. 398. 889. Where one of two co-sureties pays the debt of their principal, and obtains an assignment of a mort- gage held by the creditor as collateral security, which he subsequently forecloses, and himself becomes the purchaser of the mortgaged premises for a nominal sum, his co-surety is only entitled to have the fair cash value of the premises, on the day of sale, credited on the original debt ; he has no interest in the lands. A commission of five per cent, and the expenses of fore- closure, are proper items of deduction from the valne of the mortgaged premises. Livingston v. Van Hens- selaer, 6 Wend. 63. 890. If the surety does not assent to an alteration of the terms of his undertaking, it ceases, when materially altered, to be his contract, and has thenceforward no more force as to him than if the whole writing had been a forgery, unless it has previously become effectual by delivery, and the alterations be made by a stranger. Blakey v. JoJiron, 13 Bush, Ky. 197. 891. A surety after judgment continues for most, if not for all purposes, a mere surety, and is entitled to demand the same good faith on the part of the plaintiff as before judgment. Kouns v. Bank of Ky., 2 B. Mon. Ky. 303. Also HugTies' s adrnW v. Hardesty, 13 Bush, Ky. 364. SURETIES AND SURETY. 219 892. A surety, against whom judgment has been rendered, may offset, against an assignee of the judg- ment, whatever claims he may have purchased against the plaintiff in the judgment, in good faith, without notice of the assignment. Townsend v. Quinan, 47 Texas, 1. 893. A surety cannot benefit by an exception per- sonal to the principal. Jordan & Co. v. Anderson, 29 La. 749. 894. The mere neglect of a privileged creditor to sue will not release the surety of the debtor, even to the extent of the value of the privilege held by the creditor, unless it be proved that in consequence of such neglect, the privilege was lost. J. D. Hill & Co. V. Mrs. Bourcier, et al., 29 La. 841. 895. In an action on a bond against a surety, jildg- ment having been obtained against the principal, he is a competent witness for the surety. Although there was an expectation by a surety, by the statements of the principal when a bond was signed, that there was to be another surety, the bond was binding on the one signing although not executed by the other. The principal owed a note, which, being due, he procured a surety on another in payment of the first. The surety signed it in blank, gave it to the principal to fill up. and use it in payment of the first note. Held, that thereby the surety made the principal his agent to complete the note. The surety could not relieve him- self from liability to the obligee who took the note bona fide for a valuable consideration, by showing that his instructions as to filling up the note were not followed, The surety having created confidence by putting the note in blank into the principal's hands, must suffer the loss as between himself and another innocent party. Simpson v. Bovard, 74 Penn. St. Kepts. 351. 896. Promissory fioi^s.— Signature of, on faith of that of co-surety, which proves to he forged. — A surety upon a bond will not be discharged from liability by the fact that the name of a co-surety, on the faith of 220 SURETIES AND STTRETY. which his signature has been procured, was a forgery, nor by the fact that the surety whose name was forged gave him no information of the fact, where the condi- tion upon which the surety signed is unknown to the officer to whom the bond is given, at the time he ac- cepts the same. State, et at. Brown v. Baker, et at., 64 Mo. 167 ; State, et at. v. Potter, 63 Mo. 212. 897. Judgment was rendered against one of the makers of a promissory note, who appealed to the court of common pleas, where the plaintiff again re- covered. The undertaking of the surety was to pay any judgment rendered against appellant. Held, that the surety is liable, notwithstanding another maker of the note was made a party in the appellate court, and judgment was rendered against both makers. HeM V. Whittier, 31 Ohio, 475. 898. Eelease.— An agreement between the payee and principal of a note, for the extension of the time of its payment for a fixed and definite period, in considera- tion of the same rate of interest as that named in the note, is valid, without the payment of the interest in advance, and, if made without the knowledge of the sureties, will discharge them. 'Fawcett v. Freshwater, 31 Ohio, 637. 899. Surety.— -BeZea^e of by Failure to present Debt against Estate of deceased Principal. — 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 re- leased, 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. 900. Proceedings.— Where, in an action on a promis- sory note against several apparently joint makers, one taxXtiok. 221 of the defendants appear, and, upon default 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 judg- ment and order, as between the defendants, are utterly void for want of proper notice, and will not support a plea of a former adjudication of such matter. Fletch- er V. Holmes, 25 Ind. 458. In Pattison v. Vaughan, 40 Ind. 253, and Feutriss v. The State, ex rel. etc., 44 Ind. 271, appear in conflict, but those decisions were announced overruled by the court in /oyce, etal.Y. Whit- ney, et al., 57 Ind. 550. Held, further, the complaint of one defendant against another, to establish the alleged suretyship of the former, is not a mere cross-complaint, but is a new and original proceeding which cannot be tried upon the summons issued by the plaintiff. Id. TAXATION. 901. On Corporations.— A profit upon the capital or Investmient 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 com- pany is estopped by the declaration whether the divi- ■dend be earned or not. Commonwealth v. Pittsburg, Fort Wayne & Chicago Railway Co., 74 Penn. St. 83. 902. What Exempt. —Solvent debts, promissory notes and mortgages are not liable to taxation. People v. Hibernia Savings and Loan Society, 51 Cal. 243 ; also, BanTc of Mendocino v. CJialfant, 51 Cal. 369. 903. Tax Exemptions. — Corporations. — The return of the city tax assessor, setting forth the amount of the taxable capital of a banking corijoration, will be held as true, until the contrary has been shown by the bank. 904. When a bank claims that a portion of its ■capital is invested in United States bonds, stocks, or 222 TAXATION. 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" 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. 905. Deposits. — 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 cap- ital 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 taxation, and that portion which is taxed under another name as capital. 906. United States currency and national bank notes belonging to a bank, although non-taxable, are a part of its assets, and in ascertaining 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. 907. Tax Sale.— A tax sale made on a day other than that provided by law confers no title. McOehee v. Martin, 53 Miss. 519. 908. Deed on Tax Sale.— A tax collector's deed, which describes the land conveyed as "200 acres in sec. 2, t. 12, range 1 east," is void, for uncertainty in the description. Yandell v. Pngh, 53 Miss. 295. 909. Taxing Stock of Corporation.— The revenue act does not make a corporation liable for taxes assessed on its TENDER 223 capital stock, when such capital is represented by shares of stock which are not the property of the cor- poration. People V. National Gold Ban7c, 51 Cal. 508. 910. Tax Titles.— The purchaser of property, sold for taxes, in accordance with the provisions of law, holds, prima facie, after the delay for redeeming has expired, a valid title, and such title cannot be disregarded, or assailed collaterally, like a simulated title, but must be attacked in a direct action to annul. Lannes v. Work- ingmen's Bank, et al., 29 La. 112. 911. The deed of a State tax collector is not conclu- sive of the legality of the title conveyed by it. If such a title is properly put at issue, its validity must be proved by the party claiming under it. State, ex rel. Louis Fix V. F. J. Herron, Recorder of Mortgages, et al., 29 La. 848. 912. The power to sell land for the non-payment of taxes is a naked power, not coupled with an interest, and in all such cases every pre-requisite to the exercise of the power must precede its exercise. In interpreting statutes authorizing the sale of land for non-payment of taxes, the title to be acquired must be regarded as stricti juris . Whoever sets up a tax title must show that all the requirements of the law have been complied with, unless the former owner is the purchaser. Ga- hoon V. Coe, 57 Hall, N. H. 556. TENDER. 913. Tender of payment to one of several creditors and a demand from him of an assignment of the secur- ity, although the security may not be in his possession, bind, all the obligees, and his refusal is equivolent to the refusal of all. Merriken v. Goodwin, et al., 2 Del. 236. 914. Where a debt is unliquidated, the acceptance by the creditor of money tendered by the debtor as "in full of all account," precludes the creditor from And this, although the creditor de- 224 TENDER. Clares at the time that he receives it only to apply on the debt, so long as the debtor does not assent to his so receiving it. Potter v. Douglass, 44 Conn. 541 ; Clark V. Dinsmore, 5 N. H. 136. Miller v. Bolden, 18 Vt. 340. 915. Where a purchaser of stock makes a demand for the same, and is ready to pay the price, but the seller refuses to comply, on the ground of his inability to deliver it, no further tender is requisite. Wheeler v. Garcia, 40 N. Y. 684 ; Currie v. White, 45 N". Y. 822, reversing S. C.,1 Sw. 166. S. P., Bellinger v. JTitts, 6 Barb. 273. 916. The endorser of a note, ou a tender of pay- ment, may insist on its delivery to him, as a condition of such payment. Wilder v. Seelye, 8 Barb. 408. 917. What constitutes.— To constitute a tender, there must be a production and manual offer of the money, unless dispensed with by some positive act or declar- ation on the part of the creditor. BaJceman v. Pooler, 15 Wend. 637 ; Strong v. Blake, 46 Barb. 227. See Holmes v. Holmes, 12 Barb. 137 ; Bellinger v. Kitts, 6 Barb. 273 ; Meserole v. Archer, 3 Bos. 376 ; Vaupell V. Woodward, 2 Sand. Ch. 143. 918. A tender, by the president of a bank, in money belonging to the bank, to his private creditor, is not suflBcient ; inasmuch as the act v^ould be a fraud both on the part of the debtor and creditor, who had notice of the ownership of the funds. Reed v. Bank of New- hurgh, 6 Paige, 337. 919. Offer in Writing.— i^Zfec^ of, when not accepted.— An offer in writing to pay a debt when not accepted is a sufficient tender of money under the code, and such tender will discharge a lien for such defendant, on personal property, created by a chattel mortgage. Bartel v. Lope, 6 Oregon, 821. 920. When Necessary.— Tender of advances and charges on goods to a warehouseman is unnecessary if upon an offer to pay the same he declines to state the amount. So, also, if he declines to deliver the goods upon an- TEADB-MAEK. 235 other ground, as that his receipt for the goods is out- standing. Hanauer v. Bartels, 2 Colorado, 514. 921. Effect of. — A tender does not extinguish the right of action, but only precludes a claim for interest. Raymond v. Bearnard, 12 Johnston, 274 ; Kelly v. West, 4 J. & Sp. 304. The only effect of a tender after judgment is to bar a claim for damages or interest. Lansing v. Low, 6 Cow. 248. 922. Tender of Interest.— -ffow and to whom made. — A mortgage debtor must seek his creditor to pay the interest on his mortgage, if he is within the State, and for this purpose must go to the residence or place of business of the mortgagee. A tender of interest, if not made to the creditor, must be to one authorized by him to receive it. 50 Howard, N. Y. Practice Reports ; also, 55 Howard, IS. Y. Practice Reports, 188. TRADE-MARK. 923. Trade Mark.— A. C. & Co., being the successors by purchase of Stillman & Co., woollen manufactu- rers, continued to use " Stillman & Co." as trade-mark on their ticket for goods. Latimer, Stillman & Co., the lessees of a mill formerly used by Stillman & Co., known both as the "Stillman Mill" and as the "Seventh Day Mill," used " Stillman' s Mills" as a trade-mark. On a petition for injunction, brought by A. C. & Co. against Latimer, Stillman & Co., to prevent their so using the word "Stillman," if appearing that no de- ception could be charged on either complainants or respondents, and that no person of the old firm of Stillman & Co. was a member of the firm of A. C. & Co. : Held, that the injunction could not be granted. Held, further, that a manufacturer has the right to label his goods with his own name or that of his mill, if no fraudulent purpose is intended. Query: If a trade-mark whose reputation depends on the excellence of the manufacture, or the skill and honesty of the manufacturer, can be legally assigned ? 15 226 TRANSITU — TEUSTEE. 924. Query. — If the English practice of retaining a firm name, when no original partner remains, is gen- erally recognized in American law ? Carmichel v. Lati- mer, 11 R. I. 395. See Motley v. Downman, 3 M. & C. 1 ; also, Crawshay v. Thompson, et al. , 4 M. & C. 357. 925. Where a manufacturer has habitually stamped his goods with a particular mark or brand, a court of equity will restrain another pgrty from adopting it for the same kind of goods. McLeon v. Fleming, 96 U. S. S. C. 245. TRANSITU. 966. Stoppage of goods in.— A. sold goods to B., to be paid for upon their delivery, either in cash or in the notes of B. The goods were shipped on a vessel under a bill of lading, by which they were to be delivered to B. on his paying the freight. Before the vessel arrived, B.*s notes were protested because of his inability to pay them in the usual course of business, and an agent of A. , having heard that B. had failed, sent a person to stop the goods in transitu. This per- son, whose acts were subsequently ratified by A., before B. paid or tendered the freight, or came inta possession of the goods, but after they had been attached by a creditor of B., demanded the goods of the master of the vessel, and forbade his delivering- them to B. Held, that A. had seasonably exercised the right of stopping the goods in transitu. Durgy Cement & Vmber Co. v. G Brien, 123 Mass. 12. TRUSTEE. 927. Promise to allow personal debt as credit. — Promise by a trustee to allow his personal debt as a credit upon a note held by him as trustee, is not binding on the trust. Breach thereof is no defence to the note, even though the personal debt may have become debarred by the statute from delay to sue induced by the promise. Vason, et al. v. Beall, trustee, 58 Gra. 500. TEUST. 227 928. Of deposit in bank.— A father made a deposit in his own name as trustee for his daughter, and died. The daughter, while a minor, married, and the husband and minor wife preferred a petition for the appoint- ment of a new trustee. Held, that the decree appoint- ing a new trustee shall direct him to pay the interest of the deposit to the wife, but not to pay over any part of the principal without an order of the court. O Brien, petitioner, 11 R. I. 419. TRUST. 929. Trust. — No presumption of a resulting trust arises from a wife's possession of premises under a voluntary conveyance by her husband. Osborn v. Os- horn, 29 N. J. Eq. 385. 930. A person who acquires a legal title, with notice that the equitable title is in some other person than his grantor, will be decreed to hold the legal title for the benefit of the equitable owner. Oale v. Morris, 29 N. J, Eq. 222. 931. A., an habitual drunkard, conveyed lands to B. without consideration, and B. immediately recon- veyed to A., for life, with remainder to his heirs, re- serving a nominal rent, which was never in fact paid or claimed. Held, that the two instruments must be construed together and that B. had no beneficial inter- est in the lands, but merely took the title in trust. Moore v. Carting, 29 N. J. Eq. 432. 932. Trust Fund. — Where a trust fund has been per- verted, the cestui que trust can follow it at law as far as it can be traced. United States v. State Bank, 96 TJ. S. S. C. (Otto) 30. 933. Trust Assignment. — Mutual rights of Beneficiar- ies. — Where the holder of one of several notes secured by a trust assignment without preference has, under a bill filed by him against the grantor and trustee alone, had the property sold and the proceeds applied to the satisfaction of his note, the holders of the other notes may, by suit in this court, hold him liable for their 228 TRUST. proportion of the proceeds. Smith v. Cunningham, 2 Tenn. Chancery, 565. 934. Trust ex Maleflcio. — If one, having an interest in land, is induced to confide in the verbal promise of another that he will purchase at sheriff's sale for the benefit of the former, and in consequence is allowed to obtain legal title, his denial of the confidence is such fraud as will make him a trimtee ex maleficio. Wol- ford V. Harrington, 74 Penn. St. 311. 935. Trusts and Trustees. — Deposits in Ban7c.—B. de- posited in a savings bank certain moneys in his own name as trustee for K.. B. gave the bank book to K., who returned it to B., in whose control it remained. B. was childless, B,. was his step-daughter. It was in evidence that B. was a man of few words and that he treated R. as his daughter. In an equity suit by R. against the administrator of B., claiming the deposit as trust funds held by B. for R.., Held, that the trust was completely constituted. Held, further, that the trust being constituted, the fact that it was voluntary was no reason for refusing relief. To constitute a trust, it is enough if the owner of property conveys it to another in trust, or if the owner of personalty unequivocally conveys it to another in trust, or if the owner of personalty unequivocally de- clares, either orally or in writing, that he holds it in prcEsenti, in trust for another. A bill in equity to enforce a trust, brought against an administrator, alleged that the respondent as admin- . istrator withdrew a bank deposit, being the trust funds in question. The answer alleged the respondent's appointment as administrator in Massachusetts, and that as siich he withdrew the deposit and held the same as part of his decedent's estate : Held, in the absence of denial by the administrator that he held the deposit as administrator in Rhode Island, that the court wo aid presume he held it as administrator in Rhode Island, and would order him to account directly with the complainant, the trust TT8AGE8 OF TRADE — USUEY. 229 having been proven. Ray v. Simmons, 11 R. I. 266 also Stone, et al. v. King, et al. , 7 R. I. 358. It is enough if, having the property, he conveys it to another in trust, or, the property being personal, if he unequivocally de- clares, either orally or in writing, that he hold it in prcBsenti in trust or as a trustee for another. Ex parte Pye, 18 Ves. Jun. 140 ; Milroy v. Lord, 4 De G. F. & J. 264 ; Richardson v. Richardson, L. R. 3 Eq. 686; KeJcewick v. Manning, 1 De Q. M. & G., 176; Morgan v. Malleson, L. R. 10 Eq. 475 ; Penfold V. Mould, L. R. 4 Eq. 562 ; Wheatley v. Parr, 1 Keen, 551 and note ; McFadden v. JenJcyns, 1 Hare, 458. USAGES OP TRADE. 936. Usages of Trade.— Where a party conversant with the rules and usages of the Chicago board of trade em- ployed a commission merchant to make purchases of grain for future delivery for him, and afterwards sued the merchant for a loss incurred by the sale, which was made for want of necessary advances to meet a decline in prices, it was held, that proof of the usages of the board of trade was properly admitted to justify the act of the defendant. Corbett v. Underwood, 83 111. 324. USURY. 937. rsnry.— A note and mortgage executed to secure a loan of gold at a higher rate of premium than the market value of the gold are usurious. Defendant was desirous of negotiating a loan from plaintiff, and on that day he procured from plaintiff $1,700 in gold coin, and executed his note therefor for $2,000, payable in one year, with interest at ten per cent. At the time the premium upon gold was from 3M to 10 per cent. The defendant testified that he was to allow 10 per cent. premium upon the gold, and was to pay 15 per cent interest for the use of the money ; that the 10 per cent, premium and 5 per cent, interest were taken out of the sum called for upon the face of the note, and that the 230 ITSUET. arrangement was made as a cover for usury. Austin V. WalTcer, 45 Iowa, 527. It was said " Tlie form of the transaction is nothing, the cardinal inquiry being, when the contract specifying the amount reserved is express, did the parties resort to it as the means of disguising the usury, in violation of the laws of the State where the contract was made or to be executed f ' And, in arriving at this intention, all the facts are to be taken in consideration. Arnold v. Potter, 22 Iowa, 194. 938. A surety cannot avail himself of usury paid by his principal. Lamoille County National BavTc v. BingJiam, 50 Vt. 105. 939. Although the code pi*ovides the mode and man- ner in which a defendant may plead usury, its pro- visions do not in any manner deprive a party of exist- ing remedies for relief against the payment of illegal interest, even though he may have failed to avail him- self of the plea. Such being the law, there is no rea- son why a party may not except to the confirmation of an award on the ground of usury, even though no such defence was made before the arbitration. Woods v. Matchett, 47 Md. 390. 940. Appeal from the Circuit Court for Carroll county, in equity. On a bill filed to restrain the exe- cution of a judgment of fraud, it was held : 1st. That the complainant had not made out a case entitling him to have the judgment set aside. 2d. That inasmuch as there appeared to have been usurious charges against him in the transaction between him and the defendants, he was entitled to have the jiidgment reduced to the sum found to be due by charging him with the net amount loaned him, and the average interest thereon, and allowing him. for the amount of credits to which he was entitled, including bonus and interest on bonus. 3d. That although it was quite probable that this method did not ascertain the precise amount of usury paid by the complainant, yet no more could be allowed him, as there was no proof in the record to Justify the USURY. 231 (Eng. & Me.) 179 Oompetent any time before a breach of contract to alter or make a new one 180 To recover property, made at the time of purchase (La.) 181 JMCade on Sunday (Ind.) 183 Under seal between twelve persons, with an explanation of liability of each to the other and to other parties (Md.) 183 Empowering a person to act as agent in a speci;:! way (Md.) 184 Will not be enforced, a void contract (Ky) 185 Due notice of acceptance is required (Penn.) 186 Between creditor and principal, or creditor and surety (Md.) 187 Verbal, for longer time than a year (Ohio.) 188 Fraud, consideration, performed, rescission, restitutio in integrum. (Irish.) 189 When rescinding must put parties in their original state. . . .(Irish.) 190 Forfeiture caused by act of party (N. Y.) 191 Conveyance — Recorded after fifteen days is notice to purchasers, mortgagees and iudgment creditors subsequent to such record. (N. J.) 193 Voluntary, is void as to creditors holding debts previously con- tracted (Del.) 195 When second deed will not have priority over first although re- corded before it ., (N. J.) 193 Deed not recorded within fifteen days, is void as to subsequent deed for a valuable consideration, without notice (N. J.) 1933^ When grantee is a bona fide purchaser (Va.) 194 "Withholding deed from the records for several years (N. J.) 196 Made by a man before his marriage in fraud of the dower rights of his intended wife (N. Y.) 197 Voluntary, is void if it tends to hinder and delay creditors. . .(Del.) 198 Turchaser of property sold him to defraud creditors must be inno- cent and pay for it (N. J.) 199 In fraud of creditors will be reclaimed for benefit of creditors. (N. J.) 300 Traudulent, grantee thereof responsible if he sells it before pro- ceedings to set aside (N. J.) 301 254 INDEX. [Tlie references are. By a solvent father to his two sons in consideration of services rendered \ (N. J.) 30^ Corporations — Receiving money in excess of its powers. Sucli money must be returned (Mass.) 203- Officers of, not authorized to borrow money (Colo.) 304 Unauthorized agent must be repudiated and notice given. . . .(Colo.) 205- Promise to pay, or see them paid, must be in writing to be binding. ^ (Tenn.) 306. Liability of officers who state to a creditor that the corporation is solvent although it is not (Tenn.) 308 Bonds payable to bearer or order with coupons annexed are negoti- able » (N. J. , Mass.) 209' Where an instrument is incomplete. (Vt., Mo. & N. Y.) 210- Status of a, doing business in a State other than that in which it was incorporated ; (U. 8.) 311 Trustees, action agairist, for injuries caused by fraudulent acts, or misapplication of corporate funds (N. Y.) 313^ Preemption under contract between stocljholders not to sell stock without notice of ten days (R. I.) 313^ Refusal or neglect by officers to bring suit against a defaulting officer. Cannot gratuitously condone or release the fraud of one of its officers (Mass., R. I., N. J.) 214 Subscriptions not always vitiated by non-payment (Miss.) 215 President of Banli — Authority to make contracts (Miss.) 316- Bank that issues bills for circulation is a public corporation . (N. C.) 317 Certificate of stock stolen and the owner's name forged to a power of attorney under which a new certificate is given to an auctioneer, who in turn sells it for value to an innocent buyer (Mass.) 207' Coupons — Title to detached interest-coupons passes from hand to hand as a bank note passes (U. S.) 318- Damages — Measure of, under count for goods sold (111.) 230' In suit on first of several notes where it does not appear the notes were received as payment, nor in whose hands the others are. (Wis.) 319^' Neglect or delay in the transportation of goods (Vt.) 331 Debtor and Creditor^ — Two notes given, but one of which is secured by mortgage. Application of a small payment thereon. ..(N. J.) 233 Priority of debts, one due to wife whose husband is embarrassed. (N. J.) 323. Release — Concealment of means which is not an absolute discharge. (N. Y.) 234 Deed — When distances and areas do not correspond (Iowa.) 325 Description in, by words and figures, which shall govern (Mo.) 226^ No title passed until deed is delivered (111.) 237 Of trust, legal effect of, merely a mortgage (Ohio.) 338- Deed of Trust — Legal effect of (Ohio.) 328 Is not an absolute transfer. . . '. (Texas.) 239' Delivery of, to a trustee who has no interest in the trust is not required (111.) 280' As security for future advances (111.) 331 Sale under, when no money need be paid (111.) 333. Defences — Executory contract entered into under false representa- tions, the result of accepting conveyance (N. Y.) 333 It is no defence to an action that the contract was not within the powers granted in the corporate charter (N. Y.) 334 Demand — When a demand is not required. (Iowa) 235. to the 2Jumrjr(iphs.] INDEX. 255 Deposits — Although a Wank does not appropriate deposits of the maker of a note in its hands, does not discharge the surety. .(111.) 23fr Special deposits withdrawn by a person having authority, though the bank acted without knowledge of that fact (Ga.) 237 Payment to dorsee after death of depositor (Irish.) 33S Discount — Interest may be retained when taking the note (N. Y.) 23^ Giving certificate of deposit payable at a future day for a bill dis- counted at same time (N. Y.) 243^ When discounted by creditor at more than legal rate of interest. (N. Y.) 248. Purchase of a note at a discount is not usurious (N. Y.) 244 Ante-dating a note, bearing interest, as of a date when the money was due on the contract (N. Y.) 245 Taking out seven per cent, in advance is not usurious (N. Y.) 240' May include three days' grace (N. Y.) 241 Dividend — Pledged involuntarily to the bank for indebtedness of shareholder (Me. ) 346- Duties — Of an oflBcer are implied by his acceptance (Penn.) 347' Dndorsement — Of a negotiable note or bill before maturity by the payee creates an absolute warranty to the immediate and sub- subsequent endorser (Minn.) 248^ "Assigned to A" made in the name of payee, the latter is ^riraa fOfCie endorser (Ind.) 249' Released from liability (Canada.) 350 Change of domicile of endorser (Canada.) 351 To get benefit of security held by the creditor, the endorser must first pay the paper, and assert his rights to subrogation. . .(N. Y.) 353 Liability of endorser (Canada.) 853 Last endorser has paid the amount (Canada.) 254r Accommodation endorser (N. Y.) 255- Endorsed with the understanding that plaintifE should place his name above his (the defendant) (Canada. ) 257^ Endorser discharged may assume his liability again as though due process had been had ;. . . .(N. Y.) 256' No notice of dishonor by non-acceptance is required in Spain. (Bng.) 258 After the maturity of a note (Del.) 359 Endorser says "Then I will waive protest" upon time being granted (N. Y.) 360- Endorser — Rights of, when some money had been paid to holder on note (Canada.) 261 Note carries mortgage with it (Iowa.) 363 Waiver on demand and protest (Oregon.) 363. Endorser cannot maintain suit against assignee of paper not com- mercial (Ala.) 364 Promise by, after failure to protest with notice (Oregon.) 365- Delay of payment granted to maker without notice to endorser. (Canada.) 267 A promise to pay after maturity of note by endorser dispenses with necessity of demand and notice (Cal.) 268 Endorser in blank first by payee and then by a third person. (Kansas.) 269 Stranger endorses negotiable paper i& prima facie liable to the payee as original promissor (W. Va.) 370 Note under seal, payee agreed to continue it if maker would give security, and he gave an endorsement in blank (Penn.) 371 When, is a competent witness to prove an agreement in writing made with holder.of note at the time of his endorsement. .(U. S.) 26ft 256 INDEX. [ The references are Exemptions — Partnership property '. (Mass.) 373 lividence — To vary written contract — Sale — Sale upon approval. ' (Vt.) 273 Fair Dealing— Presumption in (Oregon.) 374 raise Pretences — What pretences will not constitute a cause of action (Me.) 375 raise Representations— Will not avoid contract in all cases(Oregon.) 376 Fixtures — Mortgage on building covers certain property and does not other certain property (Mass.) 377 Actual connections to the realty, or something appurtenant thereto. , (N. J.) 280 Poreolosure — Of mortgage by payee of certain notes which he en- dorsed in blank, conditioned that payee shall pay, or cause to be paid, said notes (Ind.) 279 Foreign Corporations — Taxation on here, is an indirect prohibition against foreign corporation (Oregon.) 378 Frauds— Whatever creates justice will destroy fraud (N. J.) 281 Is never presumed, must be proven to exist (Md.) 283 Recommendation for credit (Md.) 383 Contract for the purchase of goods with intent not to pay for them. (Ohio.) 383 J^ Vendor and vendee. Interest of vendor (Iowa.) 284 Fraudulent Representations — Basis upon which charge should be made (N. Y.) 285 Mere fraudulent representations not actionable (111.) 386 Infancy is a bar to an action for (Vt.) 387 Material representations by a vendor (N. T.) 388 Guaranty — Construction of documents (Irish.) 389 What constitutes a (Iowa.) 390 Signature in blanls of a third person on a note in the hands of the payee (Ell.) 291 Guarantor undertook to insure the payment of all indebtedness of his principal (Iowa.) 390}^ Assignor agrees to pay on notice of non-payment (Geo.) 393 Sufficiency of a complaint founded upon a special promise to an- swer for the debt or doings of another (Minn.) 393 Homestead — Incumbrance upon. Its validity (Iowa.) 394 Although mortgaged, may be sold free of such lien and regardless of it 395 Deed of ordinary form by husband and wife is sufficient to pass the title of (Colo.) 396 Deed of homestead must be executed anterior to the creation of the debt to be collected, to secure exemption therefrom (Mo.) 397 Living temporarily elsewhere, will not necessarily create abandon- ment of homestead (Mich.) 298 Husband and Wife — When wife executes a mortgage at the instance of the husband, who deceived her (Kan.) 399 Husband having reduced to his possession the funds of his wife. (Del.) 800 Husband becomes absolute owner of wife's legacy (Ark.) 301 Materials for improvements on wife's property (Md.) 303 Husband cannot loan money to his wife, both being insolvent at the time (N. C.) 301}^ Property conveyed to the wife for which payment was made out of husband's property. (Me.) 303J^ May pay his wife's claim in preference to other creditors (Me.) 303 io the paragraphs.] INDEX. 257 Action against husband and wife for necessaries (Penn.) 304 Wife may mortgage her estate to secure her husband's creditors. (Penn.) 3041^ Contract between, void (Ark.) 305 Conveyance of land by husband to wife through trustee, not void as to future creditors .(Ohio.) 306 Indemnity — Subsequent circumstances. Mortgage on his land, to secure interest of another (Ind.) 307 Innocent Purchasers — Should be protected by the early record of all deeds for land (Ky.) 308 Innocent Holders — Of negotiable paper (Iowa.) 309 Insurance — Policy of, should be construed most strongly against the insurer (Vt.^ 310 Life, forfeiture of, on failure to pay premium (N. Y.) 311 Marine. Who may effect an insurance, &c (N. Y.) 313 Tnterest — Action for money loaned and for interest upon money loaned, and upon an account stated (Colo. ) 313 Sureties liable for interest as damages in an action on official bond. (Colo.) 315 Compound Interest (N. Y.) 333 Ten per cent, can be takqn (Mich.) 816 Need not say in contract ten per cent., the sum to be paid will do. (Mich.) 317 Agreement to pay compound interest if claim is not paid when due. (N. Y.) 331 Bate agreed upon under previous laws which is in excess of present rates (Conn.) 318 An allowance for the the failure of payment at maturity (Colo.) 330 Promise to pay in labor and materials in annual payments. Inter- est does not begin to run until the year is completed (Mich.) 334 Where installment falls due within the year (Mich.) 3243^ Interest specified in note may be recovered (Colo.) 335 ITote containing "with interest, at the rate of sixteen per cent." bears the legal and not the conventional rate after maturity. (Ark.) 327 Promise to pay on demand, interest runs from date of note. (Canada.) 336 ■On account, runs from day of settlement (Cal.) 338 Euns on deposits from time the bank failed (U. S.) 329 A judgment to bear interest at ten per cent, until paid (Ky.)330^ When at the place of contract the rate differs from that of pay- ment (U. S.) 331 Interest on interest (N. Y.) 333 Act of 1873 provides " that no greater rate of interest than six per centum per annum." (Conn.) 333 ■On coupons (N. Y.) 334 When the contract does not fix rate (Ky.) 335 Both parties living in the State, creditor is entitled to war interest. (Va.) 314 Act of April, 1873. Code of 1873, ch. 173, § 14, p. 1120, abates war interest. Not constitutional (Va.) 319 Agreement to pay twelve per cent, interest embodied in note, dated in 1871 (Va.) 333 Interlineationa — Defining remarks of court in Stanberry v. Moore, 56 III. 472, on interlineations (111.) 330 Irregularity — Consenting to proceeding he might prevent by resisting. (R. I.) 337 Xapse of Time — Does not bar a direct trust (Del.) 338 Xien — Is neither property nor a debt (Ark.) 339 17 258 DTOBX. [2%e refeienees artr Transfer cannot be made but may be released (Ark.) 340 Change of (Iowa. ) 341 Life Policy — Is a cliose in action (Mass.) 342^ Married Women — Husband's consent may be implied (111.) 343- Endorsing for her husband , (Ohio.) 344 Cannot bind herself under statutes (N. H.) 345 When her note with husband's is valid in law (Colo.) 346 Mortgaging her property to secure husband's debts (Oregon.) 347 Note is void at common law, no change (Fla.) 348- Money loaned to wife for use of husband (Mass.) 349 Marshalling Securities — Required to realize on collaterals first.(Del.) 350 Mortgage on two tracts of land, on>one of which B. held a mort- gage also (Ark.) 351 Merger — Conveyance of fee to mortgagee '.(N. J.) 353 Mistakes — In payment of money may be recovered back (N. Y.) 353- Sufficient to decree the reform of a deed (Md.) 354 Party to a lease misnamed (111.) 357 Assertion of payment leads to refusal of payment from endorser. (N. Y.) 356 Produced wrong contract when making settlement (N. Y.) 355 To avoid agreement, must be not of law but of fact (Del.) 358 Made by a bankrupt in his statement (N. Y.) 859- Deed may be corrected (Oregon.) 360- Degree of proof required to reform instrument on the ground of mistake (Oregon.) 361 Mortgage — Of land, as security for note, the latter being sold, an assignment of the former to the third party, may be enforced. (Mass.) 362 Right of entry under it (Vt.) 363 Manner of making an entry (Vt.) 364 Writ of entry against heirs of mortgagor (Mass.) 365 Absolute assignment to an agent who sells it (N. J.) 366 Mortgagee's power to sell the mortgage (111.) 367 Where one of a series of notes secured by a mortgage is sold. .(La.) 369 On a vessel, like a deed absolute on its face. (111. ) 368 Equitable mortgage arises from non-payment of purchase-money. (N. J.) 370 Foreclosure of senior mortgagee (Ohio.) 371 When one person advances money for another with which to pur- chase land, taking the conveyance in his own name (111.) 372- Given by the wife with her husband's authority on her separate property, without the authorization of the judge (La.) 373- An instrument of conveyance that on its face purports to be given as security (Mich.) 374 Sale of, by a mortgagee, same effect as a sale by the mortgaging debtor (N. Y.) 375 Two mortgages on same land, date the same, to secure his bond and three sureties (N. J.) 376 Besides which a chattel mortgage on fixtures to secure same debt, consisting of several bonds held by different parties (N. J.) 377 Securing a negotiable note (Ky.) 3'i'8- Assumption of, contained in a deed to a married woman without . her knowledge or consent (N. J.) 379 Conditions in " that if on demand, there shall be paid " (111.) 380 Assignee of a, takes it subject to all (N. J.) 381 Grantee ef a mortgagor of land cannot because of fraud maintain bi& against assignee of the mortgage (Mass. ) 383 to the paragraphs.] INDEX. 25^ Is security, although contains no covenant of warranty (Mass. ) 383 When mortgage and a note are held as security for mortgagor's note also held by mortgagee, the latter of which he sells (Mass.) 384 If third mortgagee of land which is subject also to a fourth mort- gage, sells (Mass.) 385 A. gives his note and executes a mortgage to B. to enable him to raise money for him. B. without A.'s knowledge or consent gave the note to C. to secure his own debt, and then getting another note from A. by artifice, assigned mortgage and second note to D (Mass.) 386 Bona fide assignee from an agent of the mortgagor canhold it.(N. J.) 387 Unauthorized cancellation of (La.) 388 On an undivided portion of land on which mortgagee is joint owner and holds a lease on all of it (Mass.) SSft Withholding from record does not necessarily invalidate the mort- gage as against creditors (Ohio) 390 Where one of seven notes secured by a mortgage, is forcibly re- tained by creditor as a credit on his claim against the mortgagee who afterwards sells mortgage to an innocent party (N. Y.) 391 Note secured by a mortgage will carry the mortgage therewith, provided the holder of the note has actually negotiated for the note or parted with the value, upon the strength of the security. (N. Y.) 392 Conveyance of real«estate on parol promise of defendant to raise plalntilE some money (Penn.) 393- Lien — Priority (Kansas.) 394 Third party not affected by notice of a mortgage, except the notice conveyed to him by the inscription of the mortgage (La.) 395 National Bank — Is liable to be sued in any court having jurisdiction. (N. Y.) 396 Stockholder's liability (Conn.) 397 Prohibited from taking mortgage on real estate, by act, sec. 8-28. (N. Y.) 398 Bank may take a mortgage to secure anticipated liabilities, as well as those existing at the time, unless restricted by its charter. (N. Y.) 400 Special deposits — Gross negligence (Penn.) 399 Habitually receiving special .deposits (Ga.) 401 Federal agencies are exempt from State legislation so far (Md.) 403 To protect a trustee who is a stockholder of a national bank. (Conn.) 403 Omission of ofBcers to exact security for money lent (Colo.) 404 Ordering payment of the debts of an insolvent bank, who are stockholders (Conn.) 405 Suit against, in State courts (Vt.) 406 When national banks are not responsible for special deposits 407 Stockholders assent as security for the bank (Conn.) 408 Executors, administrators and trustees, are exempt as stockholders. (Conn.) 416 State law requiring cashier of each bank to transmit to certain town clerks a list of its shareholders, is not void. (U. S.) 409 Stock of, assessed for taxation at actual value (U. S.) 410 Depositor's claim at the time of suspension of bank (U. S.) 411 Comptroller's declaration as to individual liability of stockholders. (U. S.) 413 When loan exceeds one tenth actual paid-in capital (U. S.) 417 Negligence — Who must suffer if one of two innocent persons must stiller a loss, as in signing deed, &c (111.) 418 Contributory and comparatively (111.) 419 Burden of proof. (111.) 430 260 INDEX. [The references are A3 between two innocent parties (111.) 431 Negotiable Instruments — Endorsement in blank on negotiable paper is &prima facie evidence of the holder's clear right therein.(U. S.) 423 Given in payment of a patent risht which is denounced as a fraud. (Penn.) 433 Rights of a bona fide holder of paper received from one who had misappropriated it (U. S.) 434 Consist in faUing or omitting to do what prudence would dictate. _(U. S.) 435 Taken before maturity by a bona fide holder frees it from all infirm- ities, unless it is absolutely void for want of power in the maker. (U. S.) 436 Original holders of which are infected with fraud, subsequent hold- ers stand the same (U. S.) 437 Though subject to prior equities. The purchaser without notice. Negotiable Note — Made by wife, endorsed and presented by her husband for discount, is prima facie a nullity, unless for by evi- dence aliunde the instrument that it was made in her separate business or for the benefit of her separate estate (N. T.) 439 Is not changed to a non-negotiable note by being payable one or two years after date, or was given for or secured by a lien on real estate , (Ky.) 431 One day after date is due on day after it was made, cannot be sued until the day following (Oa.) 433 Non-Negotiable Notes — Pleading — Complaint — Demurrer — Defence. (N. Y.) 430 Notary Public — No general power to administer oaths (Texas.) 433 Sureties on his bond 9,re liable for damage caused by his affixing his paraph to any mortgage note which he knew to be forged (La.) 484 Note — Given for too much not void. May recover pro tanio. . . .(111.) 435 Notes juid Bills — Signed by one as principal — Proof that the con- tract was that of surety (Mo.) 436 Payable a specified number of months after date without grace. falls due (N. Y.) 43 7 Parol evidence to change the mode of payment (Tenn.) 438 When note payable on demand becomes overdue (Conn.) 439 Notice — An association (not incorporated) desired to raise money, in- dividual members thereof made notes in large sums and placed them in the hands of one of their number for sale. He used his own notes instead, because those given him were too large.(Penn.) 440 To the cashier, is notice to the bank (N. J.) 441 To sue. To release a surety under the statute (111.) 443 OSer to Endorse — When defendant becomes liable (6a.) 443 OfBcers — The illegal cancellation of an official bond will not release the sureties (La.) 444 Cashier cannot bind the bank as an endorser on his individual note. CD. S.) 445 Over-due — Coupons detached from railroad bonds payable to bearer are negotiable instruments (N. Y.) 446 BoTMfide pledgee may hold bonds he received from an agent after they were over-due (N. Y.) 447 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 (N. Y.) 448 Owelty — ^Manner of paying proceeds of sale (R. I. ) 449 to t?ceparagraphs.1 INDEX. 261 Parol Evidence — to vary terms of written contract (Ohio.) 450 Patent Right Notes — Statutes requiring notes given for patent rights to bear the fact on their face is unconstitutional (Mich.) 451 Partner — Surviving partner of a firm may assign a note payable to the late firm, by endorsement so as to vest legal title in the assignee. (111.) 453 Partnership — Note of the firm to one of its members for borrowed money may be enforced at law in name of an indorsee (Vt.) 453 Partner's attempt to bind his co-partner after dissolution of firm. (Cal.) 454 Partnership not taken under misapprehension, how maintained. (Mass.) 455 Claim against firm can be established against estate of deceased partner (Texas.) 456 Obligations created after dissolution of firm (Texas.) 457 Death of any of its members dissolves a firm, unless otherwise arranged for in agreement (Texas.) 458 New partner not liable for old debts of previous firm (Ky.) 459 Two partners constituting old firm cannot bind third partner, who with them, constitutes new firm of same name without his con- sent, by borrowing money and using it to pay debts of old firm. (Ky.) 460 Parties in an action — For breach of contract (111.) 461 Partnerships and Partners — Power of one partner to bind his co-part- ners, rests alone upon the usages of merchants, and does not amount to a rule of law in any other than commercial partner- ships (Ky., Wis., &c.) 463 Partner in non-commercial partnership 463 Engaged in business of mining 464 Action against B. as to whether one W. and B. were partners. (N. C.) 465 Liability of a firm of real estate brokers when one partner receives money to buy land for a third person (111.) 466 Agreement between A. and B. to build five houses, certain ex- , penses and profits to be divided between them (R. I.) 467 One partner, at its dissolution, sold all his interest to his partner, wl 10 gave his note therefor. Set-off against such note (Me.) 468 Individual debts. Levy made on partnership property (Ind.) 469 By levy on partnership pi-operty by the creditor of an individual creditor, acquires no interest whatever in the property itself, but only a lien on said property (Ind.) 470 Action at law cannot be maintained by one partner against another involving the state of the partnership accounts, unless on a prom- ise to pay a balance agreed upon (Md.) 471 Partnership — Incoming partner. Liability (Kansas.) 473 One partner, without the consent, expressed or implied, cannot apply a claim of the firm to the payment of his individual debt. (Wis.) 473 Partners have no implied authority to confess judgment for each other (Mich.) 474 Bemaining partners, on buying out retiring partner, agree to pay firm debts. Retiring partner afterwards paid some of old firm debts, and shortly after the new firm failed (Penn.) 475 Contracts made by one partner on behalf of the firm (N, H.) 476 Violation of good faith, for any partner to stipulate clandestinely with third person for any private and selfish advantage. (W. Va. ) 477 When general reputation insufBcient to prove partnership — What is not reputation (N. Y.) 478 Community of profit and loss is the test of a partnership, even when the dispute is between the partners (Ala.) 480 262 INDEX. {The references are Partner of an insolvent firm, conveyed his separate estate in satis- faction of a debt due to a separate creditor (Del.) 481 Sale by a partner, in payment of his own debt, of goods belonging to the firm, so intrusted to him by the firm, as to induce the pub- lic to believe them to be his (Mass.) 479 Partnership Property — Attachment of partnership property for a partnership debt will prevail over a prior attachment of the same property for a separate debt of one partner (Iowa.) 483 Payable in Bank — Note so payable in a bank named, but not located, it will be presumed, unless the contrary appear, that the bank is located in this State ,. (Ind.) 483 Acceptance of a check for a draft, and neglects to present the check in due time, is a payment of draft (N. Y.) 484 Money voluntarily paid in discharge of a claim made, or to buy off from, and quit a criminal prosecution (Vt.) 485 Payment to sheriff of redemption money under foreclosure in United States treasury notes and national bank notes (Minn.) 486 Where there are several debts, when at the time of sending a draft, the sender was, as a member of the firm, indebted to the party to whom the draft, was sent (111.) 487 Payment — Creditor holding notes or other obligations for the pay- ment of money, assigned to him by his debtor as collateral secu- rity, and neglects to use diligence to collect them (Wis.) 489 Stipulation on note that no credit shall be allowed on it, unless endorsed upon it by the payers (Wis.) 490 When draft of third party is received by a creditor from his debtor for a pre-existing debt, presumed to be a conditional payment, unless agreed otherwise (Penn.) 491 Taking a note from the debtor, or a note make by a third party, is no discharge of the debt, unless agi'eed so to be (W. Va.) 492 Partial payments are applied when their sum equals or exceeds the interest (Miss.) 494 Partial payments are made on debt past due, are applied to accrued interest, and residue to principal (Ala.) 495 In an action upon a note, money paid by the maker after the date of the note, and not endorsed thereon (Colo.) 496 Voluntary payment to a bank holding a mortgage on the land owned by wife, and for which money was paid, cannot be recovered by wife K (Penn.) 497 Option to pay in money or property (Ark.) 498 Part payment before due is a consideration to support a contract to give time (Penn.) 499 By mutual mistake for that which has no legal existence or validity. (Mich.) 500 Tender, any third person who demands no subrogation, may tender to a creditor either in his own name or in that of the debtor. (La.) 501 Giving a note of a third person is evidence of payment of a pre-exist- ing debt, unless proved otherwise (Mass.) 502 Proof of, may be made by parol evidence (Canada.) 503 What amounts to a (111.) 504 Made voluntarily — Recovery (Eowa.) 505 Partner may invest upon a foreclosure of a mortgage given to secure a note of firm before a personal judgment can be rendered against him upon the note. " If he pays the note, he becomes sub- rogated to the rights of the mortgagee " (Iowa.) 506 Indorsement of a partial payment on back of note when contro- verted by payer, is not evidence sufficient to suspend statutes of limitation (E^y-) 507 to the pcvragrapha.\ INDEX. 953 Actioa lies on note payable by installments as soon as first day of payment is passed, but only for first installment (Canada.) 508 On conditional sale of goods, does not give the seller a lien upon goods sold on such terms .- (Ohio.) 509 Disposition of — Payer has a right to direct the application of his payment where he owes the creditor several debts (Ohio.) 510 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 (Mass.) 488 Bank check, given and accepted by the parties to it as payment of the balance found due on accounting together (Mass.) 493 Personal Covenants — in the husband's mortgage do not bind the wife, although she joined in its execution (Mich.) 511 ^Personal Liability — Wife not liable for deficiencies on a foreclosure of a mortgage from her husband and herself. . , (Mich.) 513 Pledge — Collateral left with a national bank with written authority to sell them at its discretion (U. S.) 514 Subsequent bankruptcy of the pledgor of a negotiable instrument. (U. S.) 515 Lending money on pledge of stock held in trust (N. J.) 516 To constitute a pledge there must be a delivery and retention by the pledgee of the thing pledged (Me.) 517 Sale of the pledge (111.) 518 When pledgor tenders the sum due, but takes no steps to recover possession (111.) 519 Actual possession necessary when practical (Wis.) 520 What constitutes a (111.) 531 Withdrawal of pledge from national bank by giving it his individ- ual check on himself, and shortly thereafter failed (Md.) 533 Taking a negotiable note before maturity for consideration and without mala fides, creates a good title (Md.) 533 Nothing less than proof of a knowledge of facts that show want of authority to transfer a note will be sufiicient to defeat title to such ' note (Md.) 534 Holder is not bound to make inquiry, and mere negligence, however gross, not amounting to willful and fraudulent blindness. . .(Md.) 535 If the bank knew the note pledged was not the property of the party offering it (Md.) 526 Possession is necessary to perfect the title to a pledge, and volun- tary delivery bac^ terminates the title (Md.) 537 Possession is of the essence of a pledge, and without, no privi- lege can exist as against third persons (U. S.) 538 Thing pledged may be in the temporary possession of the pledgor, as special bailee, having previously been in the possession of pledgee (U. S. ) 539 Pledges made with one party for the benefit of another, and handed over to the pledgor for collection (U, S.) 530 Buling in Casey v. Cavaroc (supra, T[ 467), applies to cases of Casey ». National Bank (96 U. S. S. Ct. 492) (U. S.) 531 Evidence of pledge made to insure defendant who became bail for another at plaintiff's request (Vt.) 533 Accommodation bill has been pledged for less than its face, and the pledgee transfers it for full value (N. Y.) 533 Ceases to be operative when its object is effected (Mich.) 534 Where a certificate of stock pledged as collateral security, is trans- ferred by the pledgee to a creditor of his own (Mass.) 513 Possession — By a man or his tenant, is notice of the title (N. J.) 535 264 INDEX. [The references are No length of constructive possession will ripen a defective title to land •. (N. C.) 53S Entpriuiij into possession of land owned by wife under a deed from lier linsba:id, alone (N. C.) 537 Of a note, bond or bill, unattended by circumstances which in a re,iSonable mind ought to excite suspicion. (111.) 53& Power — Committed to two or more persons (Texas.) 53ft Of attorney, gives power to sell, and a sale is made under it, title passes whether reference is made to the power or not (Texas,) 540 Preference — 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 (Kansas.) 541 Bond given by a debtor in failing circumstances covering all his property (Del.) 543 Presumptions — In the absence of proof to the contrary it will be pre- sumed that notaries of other States have no greater powers than are possessed by those of this State (La.) 543 Principal and Agent — Fraudulent misrepresentations by an agent. (Canada.) 544 Secret gratuity given to an agent to Influence his mind in favor of giver (Eng.) 545 One purchasing goods for another malies himself personally liable if he contracts in his own name without discovering his principal. (N. Y.) 546 Also held that a subsequent disclosure of the principals by defend- ant, and the commencement of an action against them by plain- tiffs was not conclusive of an election to hold them only.(N. Y.) 547 Where agents, without express authority, assume to act for their principals (Miss.) 548 Ratification by a principal of his agent's acts is only binding when made on full knowledge of the facts (Ky.) 549 Principal and Surety — When real estate of the surety has been levied upon and sold by sheriff under execution issued upon a judg- ment rendered against principal and surety (Ind.) 550 Bond executed in blank by H. and sureties to enable him to raise $300 by loan, from B., was filled up for $354.48 (Del.) 551 Release of surety by cashier of a bank ^ (Neb.) 553 When holder holds other securities for the payment of the note, is no ground for the release of surety (Neb.) 553 Cashier states to a surety, who is not an officer of the bank, that the note upon which he is surety has been paid by the principal, bank is estopped from denying the truth of such statement, when to do so would entail loss upon the surety (Neb.) 554 When 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 a director is presumed to have (Neb.) 55.5 Release of the principal, against whom, with the surety a joint judg- ment has been obtained, operates as a release of the surety. (Hiss.) 556 Agreement between holder of note and the principal maker thereof, that the latter may retain the sum due for a definite time upon his promise to pay usurious interest (Miss.) 557 Action upon an administration bond under R. S., c. 73, § 9, a judg- ment against the administrator in favor of the creditor of the estate for whose benefit this suit is brought (Me.) 558 to the paragraphs.'] INDEX. 265 Surety cannot be held on a bond which he only signed upon a con- dition that was not performed (Mich.) 5.50 Extension of note in consideration of the execution of a deed of trust by a principal debtor, whereby property not subject to exe- cution was made liable for its payment, is good for a promise of extension of payment (Mo.) 560 Privilege^If proceeds of the movable and unmortgaged property of a succession do not suffice to pay off its privileged debts, those debts must he first preferred for payment to the proceeds of its property incumbered by the youngest mortgage (La.) •'JGl Seizure of property under execution of a valid judgment gives su- perior lien (La.) .'503 Profits — Probable profits are not a proper basis upon which to esti- mate damages (Me.) SUlJ Property purchased by a wife on the credit of her separate estate, or of her profits from it, or her earnings (Penn.) o(J4 Promise — On demand of payment, the endorser replied that he had "not expected to have it to pay, and that it was impossible to pay it at present " (Mich.) 56.5 Original promise is the basis of action (Ky.) 566 Promise to a debtor, for valuable consideration, to pay his debt to a third person ." (Kansas.) 567 Promissory Note — Illegality of note made in a foreign state, claimed because made upon a consideration void in that state (Colo.) 568 Will not always discharge liability (Conn. ) 56!) Note made in Georgia in 1863 is shown to be solvable in Confed- erate notes, the sum thereby payable in actual money is ascer- tained by the value of coin or legal currency of the United States at the time (U. S.) 570 Indorsed payment in same terms used in the note, has same con- struction as to kind of money value (U. S. ) 57 1-572 Written contract made at same time of executing and indorsing note and relating thereto, cannot be contradicted by parole testi- mony (U.S.) 573 In absence of proof when notes were transferred, the law presumes that they were, when under-due (U. S.) 574 Defendant's name on bank of note in blank, written before delivery to payee, is presumed to be the surety of the maker for his accom- modation (U. S.) 575 Payable conditional that a case pending in the courts is decided in favor of the payee, and proceeding is decided against him. .(Cal.) 570 Interest payable quarterly. (Conn.) 580 If maker was required to act after maturity of his note, and before payment with reference to his equitable rights (Texas.) 581 Descriptio personse — Executor when personally liable on, reim- bursement out of estate (Mo.) 585 " We, as trustees, but not individually, promise to pay," signed A., B. and C, trustees, purporting on its face to be secured by a mortgage (Mass.) 586 Given at the request and for the benefit of his son (Mass.) 587 Payable to the order of the wardens and vestry of a church or order, but before it passed into plaintiff's possession the corporation be- came in fact extinct (Vt.) 589 Alteration of by one of the makers, increasing the amount by insert- ing words and figures in blank spaces left in the printed form. (Mass.) 594 Under the Act of April, 1873, governed by the law merchant — Set-o£E (Ark. ) 595 26Q INDEX. [The references a/re Situation of a person, to whom money is paid by mistake on a forged note (Mass. ) 398 Obtained through fraud by A. from B., payable to C, whose en- dorsement was forged. B. at maturity, paid it to the bank. (Mass.) 599 Obtained from a person while under influence of liquor without sufficient consideration (Ala.) 600 Signing a note after two others had signed, added to his signature the word " surety." At maturity the note was renewed at bank by giving another signed in the same manner by third party. (Vt.) 601 Signing name on back of note at the time it is made and before it comes into the hand of the payee (Colo.) 603 The fact that he did not participateCin the consideration of the note does not tend to explain or rebut his liability as maker. . . .(Colo.) 603 Entitled to the whole of the business hours of the last day of grace to pay a note secured by chattel mortgage, and is not in default until the expiration of that time (Minn.) 604 Principal and surety — Liability of co-sureties — Want of considera- tion ' (Vt.) 605 Oiven to a married woman by a third person in consideration of her husband's giving to him alike note, and she transfers the note with her husband's consent (Mass.) 606 Executed on Sunday but bore date thefoUowing day (Ark.) 607 Payable on a day named " or before, if made out of the sale of J. B. Drake's horse hay -fork and hay-carrier " (111.) 608 Cancelling the signature of makers of a note dishonored and writ- ing "paid" on the note, corrected before the note is sent back to the plaintiffs by a memorandum thereon " cancelled in error." (Eng.) 609 Made payable to the maker, no validity until endorsed by him.(Ili;) 610 Law in force when a note is made and endorsed, regulates. . .(Ala.) 611 Accommodation paper (N. Y.) 613 Payable upon the condition that a railroad be built to aplace named on or before 30th of February, 1871 (Colo.) 613 "When without consideration (Ala.) 614 Action on, by administrator of payee, there was evidence that, on death of payee, the note, in a division of personal property made before the appointment of administrator, fell to a daughter, who by agent demanded payment of principal maker, who replied it was not convenient for him to pay, but agreed to pay "interest at eight per cent. ," which rate the agent wrote on the note.(Mass.) 615 Authority of an agent or attorney to execute promissory note. (Kansas.) 616 Where a party pays a forged note through mistake, supposing the signature to be genuine (Mass.) 617 Payable " on or before six months from date " was declared upon as payable six months from date (Vt.) 618 Otherwise negotiable, is not rendered non-negotiable by the addition of a stipulation to pay costs of collecting including reasonable attorney's fees (Kansas.) 619 When time of payment is not stated (Oregon.) 620 Forged note paid by mistake on the part of creditor 621 Transferred without endorsement (Oregon.) 633 Agreement to deposit purchase-money notes with an attorney, and from the proceeds of such notes outstanding liens on the land should be paid • (Texas.) 633 Secured by deed of trust, part of which is paid and a new note given for the balance. The purchaser of the new note may enforce the deed of trust to secure the payment thereof (Miss.) 634 Maker promised B. if he would endorse his note he would get C. to to the paragraphs.'] INDEX. 2G7 \ endorse it also, who on application refused, unless he had a note for same amount from first endorser as security, which was given him (Vt. ) 625 Bona fide holder of a note, who purchased it for value before it fell due and without notice of payments made thereon (Cal.) 636 Written contract between payer and payee, made at same time the note was, and in which the note is clearly referred to, must be read In connection with the note (Cal.) 637 liTeed not prove execution of note if the maker ojnits to file an affi- davit denying it (Mich.) 638 The consideration of a note is open to inquiry of all interested therein (Mich.) 639 Partnership paper given mala fide (Mich.) 630 Contemporaneous and subsequent guarantees (Mich.) 631 Subsequent endorsement does not make the endorser jointly liable with his principal (Mich.) 683 Note received after it became due (Canada.) 683 Oiven to new firm formed after dissolution of old, in satisfaction of a guarantee to the old firm for advances made by them. (Canada.) 634 PlaintifE's evidence admissible to prove the note, though dated at Montreal, was made at Quebec (Canada.) 685 Endorsement — Protest (Ohio.) 636 "When endorser has protected himself 637 When endorser has security in his own hands (Maine.) 638 Where endorser waives demand and protest (Conn.) 639 When endorser was held liable 640 Endorsers held responsible where demand was a day too late. (Miss.) 641 Second endorser with ample security from first endorser was held. (Miss.) 643 Want of the words " Value received " (Canada.) 648 Passed without endorsement fCanada.) 644 Renewal note retained, but sued on old notes before second came due (Canada.) 645 ' ' Paid Dec. 15th, 1873, $500 on acct. of this note to revive the same. " (Md.) 646 Signed by married woman without authority of her husband. (Canada.) 647 Signed with an x in presence of a witness (Canada.) 648 Endorsed before maturity by a party who has since become bank- rupt (Canada.) 649 Signed by a married woman authorized by her husband, but not shown that she is separate in property, etc (La.) 650 Joint note by two parties, one paid half the amount, and was re- leased by the payee (Penn.) 651 For patent right (Ohio.) 653 Maker of, after judgment rendered against endorser, not a compe- tent witness (Del.) 053 Bank being the holder of a promissory note protested for non-pay- ment, has not the right to credit it with deposits (Del.) 654 Agreement by the banlc to credit on the note such fees as the debtor might earn from the bank as its notary public (Eng.) 055 To release the surety, time must be given, and for a consideration. (Eng.) 656 "My note becoming due the 10th inst., good for ten days after date." The note to which reference was made became "due on the 11th, there was no other note (Canada.) 657 Memorandum made by a party on a note in his possession. . . .(Ky.) 658 Payable at and discounted by an incorporated bank, stand as for- eign bills (Ky.) 659 268 INDEX. [The references are Alterations, erasures or mutilations ou a note (Ky.) 660 Minor's note (Canada) 661 Taking a note for an antecedent debt, imposes upon the creditor an obligation to wait for his pay (Me.) 662 Promising to pay A. or his order on account of B., payment must be made to A. not to B (Canada.) 66S Where room is left by the maker on the note for making additions without defacing (Ky.) 664 R. held the note of the firm of T. G. & Co. After it was given some of the members retired from the firm, leaving assets suffi- cient to pay all debts and binding the remaining firm to pay them. (Ohio.) 665 Signed by procuration (Canada.) 666 Executed by the maker's mark, if endorsed (Canada. ) 667 Transfer of after maturity (Canada.) 668 Accommodation endorsers who are protected by a mortgage. (R. I.) 669 Not paid or protested at maturity, but some time afterwards en- dorsed and paid out by the holder (Canada.) 670 Given by insolvent debtor a few days before the insolvency to secure parties who were creditors on accommodation paper. . .(Canada.) 671 Obtained by surprise and false representation (Canada.) 673 Where maker absconds before due (Canada.) 673 Given by an insolvent to one of his creditors in settlement of a claim of the creditor against another party for whom the insolvent was security. The creditor refusing to sign composition deed of in- solvent unless such a settlement was made (Canada.) 674 Pleaded want of notice of protest, but produced no affidavit in sup- port of such plea (Canada.) 675 Payable in this country must be made in money current in this country (Canada.) 676 Holder being requested by a surety to proceed against the principal maker (Colo. ) 677 Stamp of a bank on a note (Canada.) 678 Holder and owner of a note may cancel any of the endorsers. (Canada.) 678}^ Given by an insolvent to a creditor for the balance of his claim in consideration of his having signed a deed of composition. (Canada. ) 679 Action to recover the amount of an "I. O. U." (Eng.) 680 Part payments by indorsers (Canada.) 681 As follows: " 12 mos. from the 26th June, 1873, I (defendant) will pay J. C. (plaintiff) $90 for D. P., or otherwise settle the sum of ,$90 for him, on a note, that he says he gave J. C. for $100. (N. B.) 682 A promise in writing to pay on a day certain £250 to A. B. or order, with an engagement to pay in cash or in goods, if the holder should choose to demand the latter (Canada.) 683 A promise to pay a note to the holder which is not endorsed and which fact the drawer was aware of (Canada.) 684 Writing merely certifying that a person is indebted to another in a certain sum of money (Canada.) 685 Issued under fraud (Canada.) 686 Suit before due because of the maker's insolvency and going away. (Canada.) 687 Executed in 1863 for the balance of a note executed in 1853 . . . (N. C. ) 688 Payable on demand sued thirteen years after its date (Canada.) 689 Issued by the secretary-treasurer of a municipality (Canada.) 690 When plaintiff need not allege in a suit to recover endorsement sub- sequent to the defendant (R. I.) 691 Action on note made in the United States, and payable there, defend- ant after action brought, tendered the amount in Canadian cur- to the pa/ragra(phs.'\ INDEX. 269 rency equal at the current rates of exchange to the amount of Americau currency (Canada.) 692 No set form of words is requisite to constitute a promissory note. (Canada.) 693- Ulegal consideration (H- I.) 695 Suit brought against maker of note in name of party who received payment therefore from one of the endorsers (R. I.) 696 An obligation before a notary to pay a certain sum of money. (Canada.) 694 An action In name of the bank which had previously received pay for the note from one of the endorsers in whose behalf suit was brought (R. 1.) 697 Signed by G., payable to order of W., who endorsed it, and before issue F. endorsed it. At request of W. and G. changed his signa- ture to "G., agent" (R. I.) 698 Due presentment of a note, when denied, is sufiBciently shown by evidence that the note was in the bank whwe it was payable. (Ky. ) 699 Property in — Right to sue (Canada.) 700 Date of Issue. . ." (Canada.) 701 When payable (Eng.) 703 •Given in discharge of antecedent debt (R. I.) 703 •Given on a precedent debt (R. I.) 704 In the possession of a regular purchaser before maturity has valid title, though the vendor was not the owner (La.) 705 Maker and endorser are liable for the whole debt (La.) 706 Pledge or sale of, before maturity, carries with it all the liens by which it is secured (La.) 707 In an action at law on a, facts which constitute mere matter of de- fence, and are available as such (Ohio.) 708 Durden of proof in a suit by the assignee against the assignor. .(111.) 709 "When purchased by defendant for the plaintiff's intestate with money furnished by the latter (Iowa.) 710 When held as collateral security (Iowa.) 711 Issued as partial payment for work yet to be done (Me.) 712 Action on an unendorsed note (Ind.) 713 Payable to her order, and assigned by a woman by delivery, and who afterwards marries the maker (Me.) 714 ^Evidence to impeach a (Me.) 715 And inortgage given by married woman with consent of husband. (Ind.) 716 Holder of a solidary note (La.) 717 ■Of a married woman which was taken for value before maturity. (La. ) 718 Time in which to present for payment (Pick.) 719 Renewal by an administrator of a matured note executed by his de- cedent (Ind.) 720 Accepted bill on a firm, the protest must state who compose the firm, etc (N. Y.) 721 Protest, when may be served by mail. What is good protest by mall (N. Y. ) 722 Where indorser lives in a different place from that in which demand is to be made (»■ Y.) 733 Where note held in New York was payable in Kurtztown, Pa., and the holder placed it with a New York city bank for collection, which sent it off, and it passed through several other banks before presentation (N. Y.) 734 Action by an assignee on a note (Ind.) 725 Defendant pleaded a general denial, there having been no notice of protest (Canada.) 736 IDndorsed note discounted by a bank for the drawer, at maturity, he 270 INDEX. [The references are took it up by a similar note on which last the indorsement was forged (Penn.) 727 Secured by a mortgage, which latter is transfered without the notes. (Mich.) 73& Given for stock in a manufacturing company, the note to be paid upon agreed conditions (Penn.) 729- Protest irregular (Ca. ) 730- Garnishee order, note not yet due (Irish.) 731 Payable " Twelve months afterdate (or before, if made out of the sale of a machine), I promise to pay to J. F. H. or bearer, &c." (Penn.) 732. Sale, delivery and endorsement thereon is a warranty of the genuine- ness of it ^ (Vt.) 73a Oral evidence with regard to agreement when endorsement was made. (Mass.) 57T Endorser, who, before the St. of 1874, c. 404, wrote his name upon the back of a negotiable note (Mass.) 578- Where note is paid with currency to an agent, which currency the principal refused to accept, when a new note was made and deliv- ered (Va.) 583: Endorser's liability released for -wrant of proper notice (Va.) 584 Given by an assignee of a bankrupt towards payment of moneys re- ceived and misused by him (Mass.) 588 Person who receives two notes upon an agreement to release a de- mand upon their payment at maturity (Mass.) 590" Note payable to the order of A., is given by him to the maker with- out endorsing his name on it , (Mass.) 591 Joint note signed by one as principal, and another as surety, and • payable to the order of a bank, with which certain bonds are given as collateral (Mass.) 593' Land that has been mortgaged to secure a note -which was sold under a power contained in the mortgage bringing less than the amount of the note (Mass.) 593 A waiver of demand and notice upon a note before or after the ina- • turity (Mass. ) 596- Delay in enforcing the note against the maker (Mass.) 597 Memorandum of " F. & L. bonds as collateral" on a joint and sev- eral note, signed by one as principal and another as security. (Mass. ) 598- Note payable to A. or order (secured by mortgage), who borrowed money of B. , and indorsed the note to B. 's order. Afterwards A. paid B., who wrote his name on back of the note under the name of A., and delivered it to A., and also executed an assignment of the mortgage and note to A. , after which A. sold for a valuable consideration both to a savings bank which sued B (Mass.) 576- Delivery of note to one of the partners, and its cancellation by him, though unpaid 583- A borrowed money of B. giving him therefor his note and a mort- gage on real estate. Afterwards A. paid the note to B. before its maturity, when B. assigned the mortgage to A., and put his name on the note. A. sold them to a savings bank, which sued B. (Mass.) 578- Protest — Of note endorsed by husband for his wife. He being uni- versal legatee (Canada.) 784 Omission to state in a notarial protest that it was made in the fore- noon (Canada.) 735- Non-exhibition of the note to the maker when protesting. (Canada.) 736 Described as E. B. P. instead of Joseph B. P. in protest and declar- ation (Canada.) 737 Waver of notice (Canada.) 738- to the paragraphs. ] INDEX. 271 Dated at Montreal and payable at a bank in Albany, New York, a notice of protest mailed at Albany addressed to an endorser at Montreal according to the laws of the State of New York. (Canada. ) 739- Draft is not an obligation within the meaning of the proviso of the act of 16th of April, 1850 (Penn.) 740 Addressed to a female endorser , (Canada.) 743 Must be evidence of diligence of protest (Canada.) 744 Notice of, may be given by a holder and in his own language pro- vided the paper has been legally dishonored (Mich.) 745- Must prove a legal notice of protest (Kansas.) 746 Where holder and party to whom notice is to be given (Kansas.) 747 Holder may give notice to all prior parties or only his immediate predecessor (Kansas.) 748 Banker or agent to whom paper has been sent for the purpose of obtaining acceptance or payment, is to be considered as though he were the real holder (Kansas.) 749^ Where note provides that the indorsers "waive presentment for payment, protest, and notice of protest and non-payment ".(Ind.) 750' When protest is waived, need not aver such notice (111.) 751. Due notice of, sent to the address of the defendant where he form- erly long resided, but at, and for several years preceding the maturity of this note, he lived elsewhere. There were three post- offices at his former residence, to one of which notice was sent of the dishonor of a note maturing earlier than this one, at same bank, which was responded to by him (Me.) 75^ Waiver of, by accommodation indorser, who wrote the cashier of the bank where the note was payable on the day it fell due, the bank being just then ignorant of its existence (Vt.) 758- Endorser resided in A., but before the note came due he went be- yond the Confederate lines. When note was protested notice was served at endorser's residence, but he had no agent there. (Va.) 741' Where a note is purchased at a much less value than the amount of the note at a public sale (Va.) 742^ Purchaser — At public judicial sale (Mich.) 754 Of land, with notice of outstanding equities (111.) 755 Creditor who makes advances under the security of a deed of trust, in good faith, and without notice of a vendor's equitable lien for purchase money (Ark.) 756 Option of (R. I. ) 757 To become a bona fide (Minn.) 758 Insolvency of (Eng) 759 Creditor taking a chose in action as collateral for a pre-existine debt. (Penn.) 760 Deed made to defendant under a verbal agreement that he and wife would execute and deliver a mortgage to the vendor, to do which the wife afterwards refused (N. C.) 761 Quantum Meruit — Although an action cannot be maintained upon a verbal contract not to be performed within one year (Ohio.) 763 Receipt — For a lost note (Iowa.) 763 May be explained or contradicted by parol evidence (W. Va.) 764 Of bank check as payment of antecedent debt (Ga.) 765- Receiver — Right to bid in property (111.) 76& When creditor's bill charges that the debtor has choses in action, &c. in his possession (111.) '767 Of a bank, under Gen. Stat. (R. I. cap. 140), may bring suit in his own name (R- I-) 768 ■272 INDEX. [The references are Redemption of Real Estate — sold under forelosure, maybe redeemed from the purchaser by the judgment creditor (Ind.) 769 Replevin — No previous demand upon a bonafde purchaser of a chat- tel from one who had no authority to sell it is necessary. (Maine.) 770 Sheriif cannot sell goods covered by a writ of replevin previously servttdupon himself (Mich.) 771 Goods commissioned to M. by D. for sale. D. pledged them for a loan of money to another, who knew they belonged to M. Held, M. could recover by replevin without tendering repayment of loan (Penn.) 772 Where property bond was given and the lender retained the goods. (Penn.) 773 There is no set-off in replevin (Penn.) 774 Where party declines to accept payment except In a way he is not entitled (Penn.) 775 Representations — Damages not recoverable for loss of speculative profits (Mich.) 776 Recission — of contract can only be by the acts or assent of all the parties (N. H.) 777 Stock sold with agreement to take it back (Penn.) 778 Damages for refusal by vendee to accept goods sold him (Penn.) 779 Retrospective operations of Statute of liimitations — Act 145 of 1871 amended the Statute of Limitations so as to run against Canadian as well as domestic creditors (Mich.) 780 Revivor of Debt — When a note and mortgage are once barred, a sub- sequent revivor of the note by a part payment, promise, or acknowledgment of the payer (Kansas.) 781 Sales — What is considered a dealer (Mich.) 782 Of goods — Contract — Fraud — False Pretences — Pawning of Prop- erty (Eng.)782J^ Under the guise of a renting of personal property (Ky) 783 Parties considering sale complete as to price and delivery (Ga.) 784 Consent to a sale may be inferred (IT. S ) 785 Induced by fraudulent means (N. J.) 786 Personal property. Pnrchase of one in possession (Miss.) 787 Sale — After which replevin is applied to as a relief from consequences of a breach of the agreement (Mass.) 786)^ Of goods in the hands of a bailee is good against an execution creditor (Penn.) 7871^ Sale to a party who has agreed to buy in for another (Penn.) 788 Of goods not accompanied by immediate delivery (Colo.) 789 By debtor to his creditor who credits the latter on his account and instantly resells the goods to the debtor (La.) 790 Implied warranty (Vt.) 791 Of personal property by a debtor there must be a real, permanent delivery and change of possession (Ill-) 792 Conditional sale and delivery wherein the property is not to vest until the purchase money is paid (Neb.) 793 Warranty — Implied acceptance (Vt.) 794 Satisfaction — Payment of part of a debt without release under seal, although received in full satisfaction (Penn.) 795 Savings Bank — Loss of deposit book (Mass.) 796 Sequrities — Stolen, may be followed and reclaimed (Penn.) 797 Confession of judgment by principal. Its effect upon the security. (La.) 798 When release of collateral security does not discharge a surety on the note .(Minn.) IlifX to the paragraphs.'] INDEX. 273 Set-Oflf— H. being indebted to W. on a note under seal bought a note issued by W. , which he desired to set-ofE (Del. ) 800 When set-oif can be made (Mass.) 801 Debts are not mutual, when one is by defendant as principal and surety, to the plaintiff as trustee for a minor (6a.) 802 Assignee of a mortgage, unless the mortgagor has estopped himself, holds it subject to all the equities to which it was liable in the hands of the assignor (Penn.) 803 Subsequent assignee may avail himself of "no defence " given to i the first (Penn.) 804 B. borrowed money of an agent of a trust company, giving stocks, &c. , as collateral. The agent borrowed of A. and afterwards took an assignment of B. 's note and collaterals (Penn.) 805 Whenever a demand is for damages which the law is capable of meas- uring accurately by a pecuniary standard (Ala.) 806 The right of set-off in an action is governed by the law of the place where the action is brought (Ohio.) 807 A set-off may be pleaded in an action brought by a receiver of an insolvent national bank (Ohio.) 808 When a bank can retain the deposits in set-off against the notes held by it ....(R. I.) 809 Legacy presently payable, cannot be set-off in equity against a debt of the legatee to the estate, not yet due (Del.) 810 In a suit against a party and his sureties (111.) 811 Demand against one person cannot be set-off against him and his nominal partner (Miss.) 813 When a surviving partner purchases from the administrator of his deceased partner, the interest of the latter in the firm property, while he has a claim due him from the said deceased partner. (Ind. ) 813 Shareholders — Wherein a shareholder who has become such in a company incorporated by letters patent, issued under 27 & 28 Vict. ch. 23, by the purchase of partly paid-up shares of stock is not responsible for debts of the company (Canada.) 814 Signature^Genuineness of, ceases to be presumed the moment the defendant denies it in his plea supported by affidavit. . .(Canada.) 815 Proof of (Canada.) 816 On check forged by a clerk whom the principal has trusted to re- port the condition of his bank-book as being correct, and has otherwise shown great confidence in him, and thus created confi- dence in said clerk in the minds of the officers of the bank.fN. Y.) 817 How proven (Ohio.) 818 Comparative evidence offered as a standard by the presentation of a receipt (Ohio.) 819 Action against endorsers who deny their signatures (Canada.) 820 "Verification of (Canada.) 831 Stated Account — Burden of proof on'the party impugning the accu- racy thereof (R. I.) 833 What constitutes is a matter of evidence (R. I.) 833 Balance shown in an account and claimed in a suit as such. (Texas.) 824 Statute of Limitations — A promise by A., that "he would see his brother and would pay the debt" (N. C.) 835 Residence and not citizenship is contemplated in the Statute of Lim- itations upon the time of bringing actions (Iowa. ) 836 Part payment of the consideration of a parol promise not to be per- formed within the year (Ohio.) 837 Are in force when the remedy is sought, and not that existing when contract was made (Me.) 838 Runs against an infant having only a color of title (Vt.) 839 18 274 INDEX. [ The referemux are Can apply to future transactions only, unless expressly ^ven effect (Mich.) SSO Credit upon an account after cause of action on the same is barred, not always considered as part payment .' (Oliio.)830J^ Began to run during the life of the devisor (Ark.) 831 Payment of interest on a note barred. Effect on surety (Mass.) SSa Payment upon a bond by the administrator of one of the joint makers within the statutory period (Mo.) 833 When the, begin to run on an administrator's bond (Mich.) 834 When plaintiff shows that defendant was a non-resident, the latter must show he had owned attachable property within the state.(Vt.) 835- Commence running from time of a loan payable on demand, and no note or other obligation is givrfn (Cal.) 886' When a payment by one of several maKers of a joint and several note will take it out of (Vt.) 837 Payment made by the treasurer of a partnership from partnership funds, and by him indorsed on the firm note (Vt.) 838- Partial payment of a debt raises only Aprimafade presumption. (Ind. ) 889 Are pleaded a reply that such money is a part of a mutual running account (Ind.) 840- As to married women (111.) 841 Payment of interest year by year by the principal (Md.) 843 Acknowledgment of a debt made, not to the creditor, but to a stranger (Kansas.) 843- Act of Limitations to suits on bonds does not change the presump- tion held heretofore, that after a lapse of twenty years, a bond has been paid. (W. Va.) 844 A promise by a member of a late firm, made after dissolution and before a suit is barred by the statute of limitations to pay firm debt (Florida.) 845- Defendant must insist on statute as a bar in his answer (Oliio.) 846- Debt was due Oct. 6th, 1863, suit was brought Oct. 6th, 1868.(Penn.) 847 Receipt for $900, borrowed to be returned "when called for". (Texas.) 848- Construction of act of 1868, ch. 357 (Md.) 849 Defendant's letter said: " in regard to settlement that he was ready any day after that week, and willing to leave it out to be settled " (Vt.) 850> Stock — As between a corporation and corporator (Penn.) 851 Was pledged as collateral for a note, and pledgee took a mortgage as further security (Penn.) 853'- A. agreed, for a valuable consideration, to purchase from or sell to B. , at tlie option of the latter, a certain number of shares, within a limited time at a specified price (N. Y.) 853; Agreement to carry stock on margin, right to sell when margin not kept good (N. Y.) 854- Stockholder — If any one stockholder is required to pay debt due by the corporation, he is entitled to contribution from all the others, unless he has not paid up his subscription (Md.) 855- Presumed to be owner of stock if his name appears on the books. (U. S.) 856- Party who made a contract with an organization which had at- tempted to irregularly create itself into a corporation (U. S.) 857 Subscriber to railway shares who fails to pay his subscription must pay interest (N. Y.) 858 Restraint from transferring stock by articles of association. . .(Del.) SSft' Liability of, for corporation debts (Mich.) 860- Subrogation— How and to what extent 863: ito the paragraph8.'\ INDEX. 275 Allowed principal and surety (N. Y.) 861 When a surety pays the debt (Ark.) 863 Sunday — Contracts made on that day, but bearing the date of another. (Iowa.) 864 When made for a charitable purpose (Aik.) 865 Promissory note dated on Sunday 866 Action on assumpsit to recover money paid on Sunday contract. (Me.) 867 Siureties and Surety — Not creditors of the principal, until they pay the debt for which they are bound (Del.) 868 Contribution from estate of co-surety (Ark.) 869 On a joint and several bond, given by them with A. and B. as prin- cipals (Mass.) 870 To entitle a surety to an assignment and execution against his co- sureties (Md.) 871 When all the stockholders of a corporation give their joint and several note '. .(N. Y.) 873 Where one person becomes surety for the payment of money by another, who is himself a surety for a third person (S. C.) 875 Where a party refuses to sign as surety unless another person will first sisrn, the latter's signature is forged by the maker of the note. (111.) 876 Verbal notice by a surety on a note to the holder thereof, to proceed at once to collect the note of the principal (Ind.) 877 ^Extension of time of payment upon consideration that maker will annually pay interest on the note (Ind.) 878 Surety cannot be held under a judgment void as to his principal. (La.) 879 Mortgage given to secui'e payment of notes; their time of payment was extended (Penn.) 880 Holding several securities by way of indemnity. (U. S.) 881 Married woman as surety for her husband (Mich.) 883 Part payment of a debt already due (Ohio.) 883 Surety who takes of the debtor a mortgage for his indemnity as such surety (Ohio.) 884 A Joraa.^ purchaser of a debtor's land from a frudulent vendee, without notice of fraud (Ohio.) 885 Undertaking by an infant as surety for the stay of execution.(Ohio.) 886 Or indorser of a bankrupt is released from liability by the bank- rupt's payment of the debt to the creditor, who accepts payment in fraud of bankruptcy (^y.) 887 Security taken by one of several co-sureties (N. Y.) 888 Where one of two co-sureties pays the debt of their principal. (N. Y.) 889 Where surety does not assent to an alteration of the terms of his un- dertaking (Ky.) 890 After judgment surety continues for most, if not for all purposes. (Ky.) 891 A surety against whom judgment has been rendered, may off -set. (Texas.) 893 Cannot benefit by an exception personal to the principal (La.) 893 Neglect of a privileged creditor to sue (La.) 894 In an action on a bond against a surety, judgment having been ob- tained against principal, he is a competent witness (Penn.) 895 Signing on faith of that of co-surety, whose signature proves to be forged (Mo.) 896 Judgment rendered against one of the makers of a note (Ohio.) 897 Agreement between payee and principal of a note for extension of time for a fixed period in consideration of sume rate of interest as named in the note (Ohio.) 898 276 INDEX. [The references are Release of by failure to present debt against estate of deceased prin- cipal (111.) 899 One of several apparently joint makers appears, and upon default of his co-defendants, and without any notice to them other than, the original summons alleges, and obtains judgment against them, that they are principals and ho a surety only (Ind.) 900 Surety paying a judgment against his principal and himself. . .(Va.) 87S Bond on which principal and surety are both bound, once paid by the surety in the lifetime of the principal, without assignment by the creditor, or agreement to assign (Va.) 874 Taxation — Profit upon the capital or investment of a corporation, either made or passed to the stockholders without declaration of a dividend (Penn.^ 901 Solvent debts, promissoiy notes and mortgages (Cal.) 902 Tax-exemptions — The return of the city tax assessor, setting forth the amount of the taxable capital of a banking corporation, will be held as true (La.) 90a Capital invested in United States bonds (U. S.) 904 Deposits of United States currency (U. S.) 905 United States currency and national bank notes are part of assets. (U. S.) 90® Tax Sale — Made on a day other than that provided by law. . . .(Miss.) 907 Deed describing the land conveyed as "200 acres in sec. 3, T. 13, range 1 east " (Miss.) 908 Taxing Stock of Corporation — When its capital is represented by shares of stock which are not the property of the corporation. (Cal.) 90» Tax-Titles — Purchaser of, holds prima facie after the delay for redeeming has expired (La.) 910 Deed of a State tax collector is not conclusive of the legality of the title (La.) 911 Power to sell land for non-payment of taxes is a naked power. (N. H.) 91^ Tender — Of payment to one of several creditors and a demand from him of an assignment of the security (Del.) 913 Where a debt is unliquidated the acceptance by the creditor of money tendered by the debtor as "in full of all account ". . .(Vt.) 914 Demand for stock purchased and is ready to pay the price. .(N. Y.) SIS Endorser of a note, on a tender of payment may insist on its delivery to him (N. Y.) 916. There must be a production and manual offer of the money. (N. Y.) 917 By the president of a bank, in money belonging to the bank, to his private creditor (N. Y.) 918 Offer in writing, effect of, when not accepted (Oregon.) 919' Of advances and charges on goods to a warehouseman (Colo.) 920 Does not extinguish the right of action but only precludes a claim for interest (N. Y.) 931 Of interest — How and to whom made (N. Y.) 932 Trade Mark — The right to label goods with maker's own name, or that of his mill (R. L) 933, 934 Goods stamped with a particular mark or brand (U. C.) 925 Transitu — Stoppage of goods in (Mass.) 93ft Trustee— Promise to alio w personal debt as credit (Ga. ) 937 Father made a deposit in his own name as trustee for his daughter, and died shortly after (R. I.) 938 No presumption of a resulting trust arises from a wife's possession of premises conveyed by her husband (N. J.) 93* the paragraphs.'^ INDEX. 277 Person acquiring legal title with notice of equitable interest in some other person (N. J.) 930 An habitual drunkard conveys lands without consideration.. (N. J.) 931 Trust Fund — That has been perverted (U. C.) 933 Trust Assignment — Mutual rights of beneficiaries (Tenn.) 933 Trust ex Maleficio — Agreement to purchase at sheriff's sale for another having an interest in the land to be sold (Penn.) 984 Trust and Trustee — Deposits in bank by B., in trust for R., the de- posit book being given to B (R- I-) 935 Usages of Trade — ^Party conversant with the rules and usages of the Chicago Board of Trade, employs a commission merchant to buy grain for future delivery (111.) 936 Usury — Note and mortgage executed to secure a loan of gold at a higher rate of premium than the market value of gold (Iowa.) 937 Surety cannot avail himself of usury paid by his principal (Vt.) 938 Code does not deprive a party of existing remedies for relief against payment of illegal interest (Md.) 939 Bill filed to restrain the execution of a judgment of fraud (Md.) 940 Allegation in answer that the complainant, as executor, received a certain amount usuriously (N. J.) 941 Must describe the usurious contract with precision. (N. J.) 943 Suit by a national bank upon a bill of exchange. Defence, usury. (U. S.) 943 "When the complainant voluntarily confesses the taking of usury. (N. J.) 944 Consideration of contract to forbear (Miss.) 945 In usurious contract it is immaterial in an inquiry as to the validity of the sale, the distribution of the proceeds is only affected. (Md.) 946 Plea of usury by indorser of notes in an action or recovery from him (N.Y.) 947 Factor and broker (Tenn.) 648 Money lent for a year at 8 per cent, on a note stated to be at 6 per cent. Surety's rights (Penn.) 949 Usurious contract, whether expi-essed or implied, at the time of or subsequent to the entering into the agreement (111.) 950 Overdrawing the account at bank, and at the end of each sixty days the bank compounds the interest (Ill ) 951 Bank-book settlements cannot be re-opened on charge of usury.(Ill.) 952 In suit on a note defendant averred that the loan for which the note was given had been carried by her father for two years previous at ten per cent, interest (Penn.) 953 Four notes payable in one year, with interest at ten per cent. , se- cured by mortgage. After maturity plaintiff endorsed thereon : " For value received I promise to pay twelve per cent, from ma- turity until paid, JSTov. 29, 1871" (Neb.) 954 Unless there is a law which limits the rate of interest to be charged. (Ark.) 955 Weight of evidence in favor of usury (N.J.) 956 Liquidated damages (111.) 957 Purchaser of notes and mortgage brings suit against the purchaser of the equity of redemption, who sets up usury (Vt.) 958 Party loans money, and at same time sells lots to the borrower at a fictitious value (111.) 959 No one but the person paying usury (Vt.) 960 Purchaser of mortgaged property (Ga.) 961 Recoupment (Ind.) 963 Recoupment — Repeal of statute (Ind.) 963 278 JNDEX. [The references are Taint of usury cannot be eradicated (Penn.) 964 Usurious brokage taken by third person (N. J.) 965 Where usurious interest is reserved or charged on a note or bill dis- counted by a national bank (Ohio.) 966 What renders a transaction usurious (N. Y.) 967 Taking more than legal interest by mistake (K. Y.) 968 When principal and interest are both put at hazard (N. Y.) 969 Contract depending on contingencies (N. Y.) 970 Where one man advances money to buy lands for the benefit of himself and others (N. Y.) 971 loan of money upon condition that the borrower would sell to the lender, real estate of a speculative character .(N. Y.) 972 ITo usury on a loan of chattels unless intended as an indirect loan of money (N. Y.) 973 loan, secured by pledge of stock agreeing to let lender have benefit of their rise (N. Y.) 974 IPiction of a resale to cover usury (N. Y.) 975 Agreement to sell land for $10,000 cash, but for which a bond and mortgage for $12,000 on same is given with interest (N. Y.) 976 Usurious loan on a contract to procure assignment of choses in ac- tion which have then no existence (N. Y.) 977 Jjoaa made by insurance company, on condition that borrower effect an insurance (N. Y.) 978 Authorized to loan on pledge and to charge interest for a full month when for a period of over fifteen days has passed (N. Y.) 979 Criving a note for a larger sum than the party discounting it expected to advance (N. Y.) 980 Reservation of interest, payable quarterly (N. Y.) 981 On a bill of exchange (U. S.) 982 Bona fide contract for the delivery of chattels (N. Y.) 983 Note with interest from a day past (N. Y.) 984 Taint of usury attaches to all successive obligations (N. Y.) 985 Discounting a note on the theory that 360 days is a year (N. Y.) 986 Loaning money by check payable in current funds (N. Y.) 987 Taking security bearing interest, and giving check for the amount, payable in six months without interest (N. Y.) 988 There must be a loan, a taking of more than lawful interest, and a corrupt agreement (N. Y.) 989 Agreement to pay more than legal interest, made at the time of the loan (N. Y.) 990 Agreement by borrower to receive uncurrent notes at a higher rate than their market value (N. Y.) 991 Accommodation paper (N. Y.) 992 Accommodation note negotiated upon a usurious consideration. (N. Y.) 993 Where party gives his bond for the par value of stock which is de- preciated in the market (N. Y.) 994 Loan of notes at their nominal value, which are actually worth less than that amount (N. Y.) 995 Credit given on a payment in advance for a larger amount than actual payment (N. Y.) 996 Taking a note, interest on which is computed to day of sale, and giving therefor another note payable at a future day, with in- terest without rebate (N. Y.) 997 Two persons exchange notes, for the purpose of raising money, and one procures the other's note to be discounted at a premium ex- ceeding lawful interest (N. Y.) 998 An exchange of notes, for the purpose of enabling one of the par- ties to sell the other's note at a usurious rate of discount. .(N. Y.) 999 to the paragraphs.l INDEX. 219 An accommodation note sold at a usurious rate of discount.(N. Y.) lOOO Fact that the maker of an accommodation note takes security for his. indemnity (N. Y.) 1001 Exchange of notes with a commission of two and a half per cent. (N. Y.) looa In an action defendant answers that such note is the last of a series of usurious renewals of a usurious note (Ind.) IOCS When usury was setup the agreement having been made in another State, it appearing that a premium had been taken for the loan. (N. J.) 1004 Vendor — Guaranty of title (La.) 1005 Lien on real estate for purchase money (Ipwa.) 100& When legal title is retained until the notes of purchaser are paid. (Miss.) lOOr Note for the purchase of land payable in Mississippi certificates of indebtedness (Miss.) lOOS Person who having discovered a flaw in land purchases the title for speculation (N. J.) lOO* Of land, who had taken a note therefor reserving title and endorsing sells it (Ohio.) 1010' Delivery of the deed (Mich.) 1011 Giving a receipt or taking a note, with security, from the purchaser, or taking a note of a third party, where the title remains in the vendor (W. Va.) lOlS; An acceptance of an order for goods by the vendor without further notice to the vendee (N. 0.) 1013. Warehouse Receipt — A receipt for goods not in the warehouse at the time of the execution thereof (Ky.) 1014 Party may sell his property in store in the absence of a warehouse receipt (Ky.) 1015 Third party must present receipt and written consent of the holder to get property (Ky.) 1016. Warranty — Contract in writing, reciting that it was A.'s " own prop- erty, and free from all encumbrances and all of the crop ".(Mass.) lOlT Breach of warranty set up as a defence without returning the goods. ^ . (Mich.) lOlS Implied that it iS a valid and subsisting security for the amount expended (N. Y.) lOl* Under contract received of L. $700 in part pajrment of 500 barrels of strained rosin, to be delivered, &c.," after which L. examined and selected the number he purchased (N. 0.) 1030 Courts interpret written instruments (Penn.) 1031 Agreement not in writing for the sale of personal property at a price not less than fifty dollars. (Oregon.) 1033 THE NOTARY PUBLIC. A manual of the appointment^ powers and du-^ ties of notaries, together with Forms of Acknow-" lediemenbs Affidavits, Yeriflodtions, Proofs, Legal instrum^ents, Protests, Etc., Etc. $1. 50. THE LAW OF M ANTJFACTING CORPORATIONS Including, Manufa,cturing, Mining, Mechanical, Mercantile, in fact all Commercial corporations. By John F. Bakbk. $^, 00. THE LAW OF MUNICIPAL CORPORATIONS. 2 Volumes, By Dillon, $14.00. The above hooks, or any other Law Books will he sent prepaid to any address on receipt of price, by EDWARD :%i: WARD. Law Book Publishei|. 7 College Place, N. Y.