Asso. v. Boston, 113 Mass. 528; Re Garvey, 77 | N. Y. 523; State v. Passac, 41 N. J. L. 90.

Courts of equity have undoubted jurisdiction to interfere by injunction when the corporate authorities of a city are taking improper or illegal proceedings, under claim of right, to do an act injurious to the rights of citizens and property holders.

High, Inj. § 793; Baltimore v. Gill, 31 Md. 375; Scofield v. Eighth School Dist. 27 Conn. 499; Delaware Co. v. McClintock, 51 Ind. 325; People v. N. Y. 32 Barb. 35; Perry v. Kinnear, 42 Ill. 164; People v. N. Y. 32 Barb. 102; Pullman v. N. Y. 49 Barb. 57; Whiting v. Sheboygan & F. du L. R. Co. 25 Wis. 167; Peck v. School Dist. No. 4, 21 Wis. 516; Willard v. Comstock, 58 Wis. 565.

Messrs. Fay D. Luther and Stark & Sutherland, for respondents:

Even where the voters at a town meeting have voted an illegal tax, nevertheless equity will not interfere at the suit of a taxpayer until something further has been done to make that illegal tax a lien upon the property of a taxpayer. Judd v. Fox Lake, 28 Wis. 588. See also Milwaukee Iron Co. v. Hubbard, 29 Wis. 51, 59; West v. Ballard, 32 Wis. 168, 173; Smith v. Oconomowoc, 49 Wis. 694, 697; Roe v. Lincoln Co. 56 Wis. 66, 72; Gilkey v. Merrill, 67 Wis. 459, 460; Sage v. Fifield, 68 Wis. 546, 549; Ballard v. Appleton, 26 Wis. 67, 70.

Chapter 100, Laws of 1887, is void for uncertainty. The matter to be submitted to a vote is indefinite.

See State v. McGinley, 4 Ind. 7; Campbell's Case, 2 Bland, Ch. 209, 20 Am. Dec. 360, 372 and cases cited.

No construction of this statute should be adopted which will take away the common and ordinary functions of the Common Council of the City of Ripon.

See Anderson v. Van Tassel, 53 N. Y. 631; Wales v. Stetsm, 2 Mass. 143; Hardy v. Brooklyn, 7 Abb. N. C. 403; Melody v. Reab, 4 Mass. 472, 473; Salem Turnp. & Bridge Corp. v. Hayes, 5 Cush, 458, 461.

Chapter 100 of the Laws of 1887 should be construed as merely directory or advisory. Stevenson v. N. Y. 1 Hun, 51, 54.

A statute which points out a method of procedure but does not specify what shall result in case of failure to follow that method is directory; that is to say, if affirmative words are employed, but no negative, the statute is given a directory construction.

Cole v. Green, 6 Man. & Gr. 872, 890; Lowell v. Hadley, 8 Met. 180; Gale v. Mead, 2 Denio, 160; Striker v. Kelly, 7 Hill, 9; Re Mohawk & H. R. Co. 19 Wend. 143; Colt v. Eres, 12 Conn. 243; Wheeler v. Chicago, 24 Ill. 105, 108; Cor. bett v. Bradley, 7 Nev. 108; Savage v. Walshe, 26 Ala. 620; Stayton v. Hulings, 7 Ind. 144; Rex v. St. Gregory, 2 Ad. & El. 99; Rex v. Hipsirell, 8 Barn. & C. 466; Torrey v. Millbury, 21 Pick. 64, 67; People v. Cook, 14 Barb. 290, affirmed in 8 N. Y. 67. See Bladen v. Phila. 60 Pa. 464; People v. Runkel, 9 Johns. 147; People v. Peck, 11 Wend. 604; People v. Holley, 12 Wend. 481; Holland v. Osgood, 8 Vt. 276 Santo v. State, 2 Iowa, 165.

This is an appeal from an order dissolving temporary injunction.

The suit is brought by the plaintiffs for themselves and others similarly situated, to restrain the officers of the defendant city from entering into a contract with any corporation or person for the construction of a system of waterworks to supply the city and its inhabitants with water. The plaintiffs are residents and taxpayers of the city, and aver that their taxes will be greatly increased if the city is allowed to carry into execution the purposes and things contemplated and resolved upon as set forth in the complaint.

It is alleged that the common council, at a regular meeeting in August, 1888, adopted a resolution to the effect that the mayor and city clerk take immediate steps for the letting of a contract to some reliable company for the construction of a system of waterworks, and that the officers of the city threaten and declare that they intend to enforce this resolution, and let a contract in pursuance thereof. This is as far as the officers of the city had proceeded in the matter of constructing waterworks, and the question is, Do these facts present a case for the interference of a court of equity, at the suit of a taxpayer, before something further has been done in the premises? It seems to us that these facts furnish no grounds for such interference by way of injunction.

It is said on behalf of the plaintiffs that the common council had no authority to decide upon and erect waterworks, or to enter into a contract for the construction of a system of waterworks, without first submitting the question of the construction of such waterworks to the voters of the city, as provided by chapter 100, Laws 1887, and in case a majority of the votes cast should be in favor of the project.

It may be conceded that this view is correct; that the common council has no authority, either to undertake on behalf of the city the construction of a system of waterworks, or to enter into a contract with any company or person for the construction thereof, without the electors of the city first vote in favor of such works; but, still, Can a taxpayer interfere and arrest the proceedings of the common council before anything has been done to carry the resolution into effect, as by levying and assessing an illegal tax, which may be an apparent lien upon real property? It is very obvious that a court of equity does not sit as a court of errors to review and correct the proceedings of a municipal body, unless they are productive of a peculiar or irreparable injury to the plaintiff.

The law upon this subject is well stated by Dixson, Ch. J., in Judd v. Fox Lake, 28 Wis. 583, where, among other things, he says: "The general principle that equity possesses no power to revise, control or correct the action of public, political or executive officers, or bodies, is, of course, well understood. It never does so at the suit of a private person, except as incidental and subsidiary to the protection of some private right, or the prevention of some private wrong, and then only when the case falls within some acknowledged or well defined head of equity jurisprudence.'

court:

tax for the expense of constructing a system of waterworks without a vote; nor has that body done anything in the matter except to adopt a resolution that the mayor and city clerk take immediate steps for the letting of a contract to some reliable company for the construction of such works. This is all that has been done by the municipal officers.

True, it is alleged that the officers threaten and declare that they intend to enforce this resolution, and let a contract for the construction of waterworks. But in the Judd Case it was held that the fact of voters at a town meeting having voted an illegal tax did not constitute a sufficient ground for enjoining the town officers from assessing or collecting the tax.

The reasons why a court of equity will not interfere in such a case are very cogently stated by the Chief Justice. "The grounds," he says, "are too remote, intangible and uncertain; and the public inconvenience which would ensue from the exercise of the jurisdiction would be enormous. It would lie in the power of every taxpayer to arrest all proceedings on the part of the public officers and political bodies in the discharge of their official duties, and, assuming to be the champion of the community, to challenge them in its behalf to meet him in the courts of justice to defend and establish the correctness of their proposed official acts before proceeding to the performance of them. A pretense more inconsistent with the due execution of public trusts and the performance of official duties could hardly be imagined."

The doctrine laid down in Judd v. Fox Lake rests upon sound principles, and the case has been approved and affirmed in subsequent causes which have come before this court. See West v. Ballard, 32 Wis. 168; Neril v. Clifford, 55 Wis. 161; Roe v. Lincoln Co. 56 Wis. 66; Gilkey v. Merrill, 67 Wis. 459; Sage v. Fifield, 63 Wis. 546.

These decisions are decisive of this appeal. The resolution of the common council, of itself, does the plaintiffs no damage; nor is it clear that that body will proceed to do any unauthorized act under it which will result in injury to their property.

Of course such cases as Peck v. School Dist. 21 Wis. 516; Whiting v. R. Co. 25 Wis. 167; and Nevil v. Clifford, supra-stand upon quite different grounds, and the relief granted came within well settled principles of equity jurisprudence.

But here, assuming that the common counwould have no power to construct waterworks or enter into a contract for such an improvement without a favorable vote of the electors of the city first had, still no tax has been levied or assessed, and at most a mere anticipated or threatened contract has been contemplated, which has ripened into nothing injurious to the plaintiffs or their property, and which may never do so.

The aid of a court of equity cannot be invoked in advance to restrain the city officers founded on such a state of facts.

We were requested to construe chapter 100, Laws 1887, and determine its validity and whether it was binding upon the common council in the matter of contracting for or in constructing waterworks on behalf of the city. The validity of that law is not necessarily involved in

this appeal, though we nave assumed, for the purposes of the case, that the common council should submit the question of constructing waterworks to a vote of the electors. But even on that assumption we hold that the complaint states no ground for the interference of equity by its writ of injunction.

It follows from these views that the order dissolving the injunction was correct, and must be affirmed.

S. G. ANDRUS et al., Respts.,

V.

HOME INSURANCE CO. of New York, Appt.

(....Wis.....)

A compulsory reference in an action upon an insurance policy will not be ordered under Wisconsin Revised Statutes, § 2864, on the ground that the trial of the issue requires the examination of a long account because it may be neces sary to examine bills of sale, inventories or accounts consisting of 1,200 or 1,500 items. The examination of such accounts is an incidental inquiry merely to determine the amount of damages recoverable on the policy.

(March 12, 1889.)

APPEAL by defendant, from an order of the

Circuit Court of Dane County denying a motion to refer for trial an action upon a policy of fire insurance. Affirmed.

The case is sufficiently stated in the opinion. Mr. H. W. Chynoweth, for appellant: The statute applies to cases where the suit

was brought for the purpose of the recovery of damages for breach of contract.

NOTE.-Peremptory reference; when proper.

If the trial of any issue of fact required the examination of a long account, the reference was proper. Tay. Stat. 1499, 8 25; Rev. Stat. 761, § 2864; Dane Co. v. Dunning, 20 Wis. 210; Monitor Iron Works Co. v. Ketchum, 47 Wis. 178.

The circuit court necessarily had to determine from the pleadings alone whether such examina. tion was required; and if the fact appears from the pleadings, that is sufficient. Monitor Iron Works Co. v. Ketchum, supra.

If the record does not show any issue, the trial

of which requires the examination of a long account on either side, the court has no authority to order a reference for the trial of the case, against the objection of the defendants, and the making of such order. Stone v. Merrill, 43 Wis. 72; Messenger v. Broom, 1 Pinn. 630; Tronson v. Union Lumbering Co. 38 Wis. 202; Armstrong v. Gibson, 31 Wis. 61: Gilbank v. Stephenson, 31 Wis. 592; Cairns v. O'Bleness, 40 Wis. 469; Knips v. Stefan, 50 Wis. 288. In equity cases a reference" to take an account" under the second subdivision of the second section, is a substitute for a reference, under the old prac tice, to a master. Palmer v. Palmer, 13 How. Pr. 363; Ciscel v. Wheatley, 27 Wis. 618; Druse v. Hor

ter, 57 Wis. 646.

If either party to an action to foreclose a mechana jury, under section 2323, Revised Statutes, the ics' lien demand that the issues of fact be tried by court has no power to direct a reference under section 2864, Revised Statutes. Account, as used in section 2861, Revised Statutes, providing for a per

See Dane Co. v. Dunning, 20 Wis. 210;| Cairns v. O'Bleness, 40 Wis. 469.

It is only necessary that one of the issues involve the examination of an account. Even where an issue of fraud is joined as a part of the cause, still the whole case may be referred if the examination of a long account is necessary in the determination of one of the issues. Littlejohn v. Regents of University of Wis. 71 Wis. 437, and cases cited.

This rule has been applied in actions upon insurance policies.

Levy v. Brooklyn F. Ins. Co. 25 Wend. 687; McLean v. East River Ins. Co. 8 Bosw. 700; Freeman v. Atlantic Mut. Ins. Co. 13 Abb. Pr. 124; Brink v. Republic F. Ins. Co. 2 Thomp. & C. 550; Magoon v. Sinclair, 5 Daly, 63; Seigel v. Heid, 36 How. Pr. 506.

Cole, Ch. J., delivered the opinion of the court:

560.

Messrs. Luse & Wait and C. E. Estabrook, for respondents:

An account within the meaning of this section must be one made up of charges and dealings between parties; it must be the foundation of the action, and directly involved in the determination of the same.

See Druse v. Horter, 57 Wis. 644; Cameron v. Freeman, 18 How. Pr. 310; McCullough v. Brodie, 13 How. Pr. 346; Freeman v. Atl. Mut. Ins. Co. 13 Abb. Pr. 124; Camp v. Ingersoll, 86 N. Y. 433.

The examination of proof of a large number of items of damage in an action upon contract does not in any sense involve the examination of a long account within the meaning of this

statute.

Untermyer v. Beinhauer, 7 Cent. Rep. 709, 105 N. Y. 521; Keep v. Keep, 58 How. Pr. 139; Bell v. N. Y. 11 Hun, 511; Kain v. Delano, 11 Abb. Pr. N. S. 29; Van Rensselaer v. Jewett, 6 Hill, 373; Thomas v. Reab, 6 Wend.503.

emptory reference in all cases where the trial of an issue of fact shall require the examination of a long account, means an account in fact kept by one party or the other; and a "long account" is a series of charges made at various times as the transactions occurred. Druse v. Horter, 57 Wis. 644.

Actions not subject to peremptory reference. Actions are not subject to peremptory reference under the first subdivision of section 2864:

First, where they are cases in equity (Willer v. Bergenthal, 50 Wis. 474)—such reference being confined to actions at law. Mead v. Walker, 17 Wis. 189; Dane Co. v. Dunning, 20 Wis. 210. Such a reference cannot adjust equities. 3 Wait, Pr. 249.

Second, where it is a special statutory proceeding to be conducted strictly according to statute. Mead v. Bagnall, 15 Wis. 156; Western Bank v. Tallman, 17 Wis. 530; Hall v. Wilson, 6 Wis. 433; Adler v. Milwaukee Pat. Brick Mfg. Co. 13 Wis. 57. Third, where the examination of a long account is not involved, and must be a bona fide account. Cameron v. Freeman, 18 How. Pr. 310; McCullough v. Brodie, 13 How. Pr. 346; Freeman v. Atlantic Mut. Ins. Co. 13 Abb. Pr. 124; Swift v. Wells, 2 How. Pr. 79.

An action sounding purely in tort cannot be referred, under section 2864, Revised Statutes, without the written consent of both parties. Norton v. Rooker, 1 Pinn. 195; Stacy v. Milwaukee, L. S. & W. R. Co. 72 Wis. 331

chandise as is usually kept in a retail country drug store. The stock was wholly destroyed by fire within the life of the policy.

The motion for the reference was founded upon affidavits which tended to show that it will be necessary to examine bills of sale, inventories or accounts, consisting of twelve or fifteen hundred items, to ascertain the amount of the loss of the assured.

Does such a case come within the statute authorizing the court, without the consent of the parties, to direct a reference on the ground that the trial of the issue requires the examination of a long account on either side, within the meaning of section 2864, Revised Statutes 1878? It seems to us it does not. Though the examination of numerous items may be necessary to ascertain the amount of damage, yet that does not involve, directly, the examination of a long account. The value of the property detroyed is only collaterally involved as affecting the measure of damages. Stacy v. Milwaukee, L. S. & W. R. Co. 72 Wis. 331.

That case was an action for the negligent burning of the plaintiff's property. It was claimed that the trial of the issues would involve the examination of a long account and that a compulsory reference could be ordered. But the court overruled this position, holding that

In Littlejohn v. Regents of University of Wis. 71 Wis. 437, the point was left undecided. Stacy v. Milwaukee, L. S. & W. R. Co. supra.

In actions at law, discretionary.

In an action at law, under section 2864, Revised Statutes, a reference is discretionary with the court. McCormick v. Ketchum, 51 Wis. 323.

It is only in cases which under the statute may be referred that the discretion of the court is to be exercised. The rule is stated in Welsh v. Darragh, 52 N. Y. 593, and Knips v. Stefan, 50 Wis. 291.

It is not a matter of right that the plaintiff may have an order of reference to try the case in any action at law. The right to have the issues determined by a referee and the court, against the consent of either party, is the exception; and the party who claims the right to have such issues so tried must bring his case within the exceptions pointed out in section 2864, Revised Statutes 1878. Knips v. Stefan, supra.

It might be that under a plea of payment an investigation of a long account would become necessary, when, as in the case of Carpenter v. Shepardson, 43 Wis. 406, 413, the defendant admitted the items of the plaintiff's demand, but controverted the plaintiff's right to recover the amounts charged for each item. Ibid.

Probably the issues on counterclaims alone would justify a compulsory reference under the statute. Carpenter v. Shepardson, 46 Wis. 557.

the value of the merchandise, lumber and other property burned was only collaterally involved.

Substantially the same ruling was made in Camp v. Ingersoll, 86 N. Y. 433, which was an action upon an award for the failure of the defendants to deliver certain stock; and it was insisted that to ascertain the value of the stock the examination of a long account would be necessary.

But the court says though the examination of numerous items of damage may be involved, they do not constitute an account, technically and properly speaking, between the parties.

An account implies dealings and transactions between the parties; and where the action is based upon such an account which has to be examined and investigated in order to settle the rights of the parties, a reference can be made. But it is where the action is based upon the account itself, that a compulsory reference can be made. But it does not follow because a variety of items has to be examined to ascertain the amount of damage recoverable, that the same rule obtains. There the examination of the account is merely an incidental matter, not the main issue in the cause.

We therefore hold that the inquiry as to the list of articles or items destroyed by the fire, though it may be necessary and proper to determine the amount of loss or the damages recoverable on the policy, still in a legal sense does not require the examination of a long account, as where the action is upon the account itself, which is the real subject of investigation. This view of the law is sustained by the weight of authority in New York where the question has arisen.

In Untermyer v. Beinhauer, 105 N. Y. 521, 7 Cent. Rep. 709, the action was to recover damages for the breach of a building contract. The court held that neither the fact of the bill of particulars furnished by the plaintiff, nor the counterclaim in the answer which required the examination of a long account, made the action a proper one for a compulsory reference. The court says:

"These items of damages did not constitute an account. It has been repeatedly held that

where there is no account between the parties, in the ordinary acceptation of the term, the cause cannot be referred, although there may be many items of damage. This rule has been applied in actions on policies of insurance where there are many items of loss."

The cases of Freeman v. Atlantic Mutual Insurance Company, 13 Abb. Pr. 124; and Ryan v. Atlantic Mutual Insurance Company, 50 How. Pr. 321, 66 N. Y. 628, may be somewhat in conflict with this rule, but we think the law is correctly stated in the cases in the 86th and 105th. See also Keep v. Keep, 58 How. Pr. 139; Dane v. Liverpool F. L. & G. Ins. Co. 21 Hun, 259; Bell v. N. Y. 11 Hun, 511.

In Littlejohn v. Regents of University of Wis consin, 71 Wis. 437, the court went as far as it has gone in any case, to sustain a reference. The action was to recover the balance due on a building contract and for extra work and materials. The court held the issues might be referred as the question, what was due the plaintiff on the contract and for extra work and materials, involved an accounting, which was the main issue.

The cases of Dane County v. Dunning, 20 Wis. *210, and Cairns v. O'Bleness, 40 Wis. 469, are clearly distinguishable from the case before us.

In those cases it would be absolutely necessary to examine the treasurer's accounts to ascertain the amount of the deficiency and to determine the extent of the liability of the sureties upon the official boud. In both cases the examination of the treasurer's account was a matter directly involved in the issue. But these decisions cannot apply here where the issue is as to the amount and value of the merchandise destroyed by the fire.

If a compulsory reference could be ordered in this cause, of course it could be ordered in every action on a policy of insurance where there are many items of loss. But as we have said, the examination of the accounts or bills of sale is an incidental inquiry merely to determine the amount of damages recoverable on the policy. We therefore think that the reference was properly denied.

The order refusing the reference is affirmed.

v.

E. O. GRISSOM, Appt., COMMERCIAL NATIONAL BANK.

(....Tenn.....)

1. The custom among the banks of a certain place to pay notes made by a depositor payable at a bank out of his deposit, without instructions, in order to be binding, must be certain and uniform; and there must be a reasonable ground to suppose that it was known to both parties to the contract.

2. A bank has no implied authority to

NOTE. See Farmers Deposit Nat. Bank v. Penn Bank, 2 L. R. A. 273; Fifth Nat. Bank v. Ashworth,

pay to a third party a note made by a depositor payable at its place of business simply because he has funds there sufficient for that purpose, in the absence of any course of dealing or previous instructions so to apply to the deposits.

3. A set-off cannot be allowed in favor of a bank against a depositor, by reason of an unauthorized payment out of his funds, by the bank, of a note made payable at its place of business, on which the depositor, although the maker, was, as between himself and the indorsers, not primarily liable, when, before he obtained knowledge of such payment by the bank, he had allowed them credit for the note, and they had become insolv ent and removed from the State. (February 23, 1889.)

2 L. R. A. 699.

Chancery Court of Davidson County, dis

missing a bill filed to compel payment of the amount of an alleged deposit belonging to plaintiff and remaining with defendant bank. Reversed.

The facts are fully stated in the opinion of the court.

Messrs. Stokes, Parks & Stokes, for appellant:

A custom, to be binding, must be general as to place, and not confined to any particular bank or banks.

Adams v. Otterback, 56 U. S. 15 How. 545 (14 L. ed. 805); Saint v. Smith, 1 Coldw. 52. It must be certain and uniform. Morse, Banking, ed. 1888, § 9, and cases cited.

No custom can alter or impair a clearly written contract. This kind of proof can only be resorted to for the purpose of affecting a written contract when it contains words or clauses that are technical, local, generic or indefinite.

Bedford v. Flowers, 11 Humph. 245; Moran v. Prather, 90 U. S. 23 Wall. 492 (23 L. ed. 121). Evidence of the custom of a particular place is admitted alone upon the supposition that both parties to the contract were cognizant of the custom and are presumed to have made the agreement with reference to it.

Dabney v. Campbell, 9 Humph. 686. Did the fact that the note was payable at the defendant's bank make it the duty of the defendant to pay it?

The relation that exists between a bank and a depositor is one of debtor and creditor. Morse, Banking, § 289; Phonix Bank v. Risley, 111 U. S. 125 (28 L. ed. 374).

When a note of a depositor is made payable at a bank, although he has to his credit, in bank, sufficient funds to pay it, the bank has no right to pay the note and charge it up to the depositor.

Folkes, J., delivered the opinion of the court:

This is a bill brought by complainant to recover of the defendant the sum of $1,000, claimed as a balance due after crediting the bank with all checks drawn against sundry deposits made therein by the complainant as a customer of the bank.

The defendant interposes two defenses:

It admits that between May 1, 1886, and July 27, 1887, the complainant made deposits with it in sundry sums aggregating $5,134.05; but says that it has paid out the same for and on account of complainant, upon sundry checks, except as to $1,000, which it says was paid upon and in discharge of a note of complainant for that amount, made and dated at Nashville, March 26, 1887, and payable sixty days after date to the order of J. D. Carter & Co., at the Commercial National Bank, Nashville, indorsed by J. D. Carter & Co., and by John F. Wheless; the latter of whom, as the owner and holder thereof, placed the same in the Fourth National Bank of Nashville for collection. That on May 28, the last day of grace, the note was by the Fourth National Bank presented for payment at the defendant's banking house, where it was marked "good" by defendant, and was, on May the 30th, paid by defendant to the Fourth National Bank, and the amount thereof charged up to complainant in the same manner as though it had been a check drawn by_complainant.

It claims that it was and is the custom of the banks in Nashville, where notes are made payable at a particular bank, to pay such notes, when the maker has sufficient funds to his credit for that purpose, without instructions, and to charge the same to the general account of the maker. It also insists that, independent of custom, it has the right to treat a note so made as the equivalent of a check, and as a direction, therefore, on the part of the maker to pay the same on his general account as a depositor.

The chancellor found both defenses in favor of the bank, and dismissed the bill. Complainant has appealed, assigning errors.

Defendant cannot be permitted to rely upon the note as a set-off to complainant's demands. No bond for cost was executed under the cross bill, nor were the matters in it put at issue. This is fatal to the answer as a cross bill.

Curd v. Davis, 1 Heisk. 575; Keele v. Cunningham, 2 Heisk. 290.

The bank had no authority to pay this note, and in doing so it was a "volunteer," and to that class of persons the doctrine of subrogation does not apply (Brandt, Sur. § 260), nor does such a payment ever create the relation of debtor and creditor.

McNairy v. Thompson, 1 Sneed, 154; Belcher v. Wickersham, 9 Baxt. 111; Motley v. Harris, 1 Lea, 577.

Messrs. Champion & Head for respondent.

spective banks, and, so far as they know, at the banks in the city generally. But these witnesses are not agreed as to the matter of exercising the usage.

Mr. Porterfield, of the defendant bank, says it is the custom with his bank to pay such notes, unless on their face they appear to have been given for land, in which event they are not paid.

Mr. Williams, of the First National Bank, says that while the habit of his bank was to pay such notes, they did not pay land notes, nor where there was "some complication" about them.

Mr. Keith, of the Fourth National Bank, proves that it was the custom of his bank to pay such notes, and that he knows of no excep tion to the rule, although his bank may have made some.

Mr. Jones, of the American National Bank,