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animated is a desire for prominence or notoriety in cluding the said William H. Blumer, composed the the editorial corps. The real or true motive could be banking-house of William H. Blumer & Co., which no other than partisan malice or a willful, headlong carried on business but a few hundred feet distant zeal to promote their partisan interests in the face of from the First National Bank of Allentown. The their official fidelity to this court, and regardless of all plaintiffs having money on deposit with the bank, and consequences.” Suppose the motives here assigued be being desirous of obtaining interest-bearing certificates the true motives which actuated the complainants — a therefor, called at the bank for that purpose. Dr. A. desire for notoriety, and a willful, headlong zeal to P. Steckel, one of the plaintiffs, testifies as to what ocpromote partisan interests — what had they to do with curred, substantially as follows: "I went to the bank professional conduct or fitness to practice law? The every week or two to mako my deposits; some time in complainants, in their sworn answers to the rule, aver August, when I made deposit, I asked the teller, that in making the publication in question they were George Straub, does the First National Bank take any " acting in good faith, without malice, and for the money on certificates? He said, 'yes, sir; do you public good."

want to leave us some?' I said, 'no, not to-day,' I asked Of course wo meau to express no opinion on the him whether the First National Bank issued certifimerits of the controversy between the court below and cates of deposit, and as a matter of course pay interthe complainants. We concede to the court all that est, and he said 'yes;' then I came there again in has been claimed on their behalf — that the publica- September, 1876, and made my ordinary deposit in the tion in fact was a false and malicious libel and that in bank, and after we were through I said to the teller making the rule absolute they were actuated by a sim- that I would take the First National Bank certificates ple desire to uphold the authority and dignity of the for $700. I filled out a check, and he handed me a cercourt. If this were a mere question of discretion we tificate; I looked at the certificato for $700; it was to are of opinion their order was a mistake. The act of be made on demand, and asked him, “is this the First 1879 gives this court jurisdiction to review the discre- National Bank certificate?' the answer was, 'yes, sir, tion of the court below, and wo think it was not in this it is;' I then said, 'this reads Blumer & Co.; I want case wisely exercised.

this distinctly understood, I want nothing but the The order which made absolute the rule to show First National Bank certificates;' he answered me cause why tho names of the complainants should not that this was one and the same thing; that it should be stricken from the list of attorneys is hereby vacated pass to the credit of the company, the same as it was and the rule discharged, and it is ordered that the before. With this assurance I took that certificate. complainant be restored to the bar, the costs of this This was in the presence of the casbier of the bank, proceeding and writ of error to be paid by the county Jacob A, Blumer.” Two other certificates, aggregatof Lancaster,

ing, with the one above mentioned, the sum of $3,000, were obtained under circumstances not essentially dif

ferent. There was evidence that the president of the NATIONAL BANKS, WHEN LIABLE FOR bank recognized them as binding upon the bank, and

offered to reinstate the plaintiffs as they were before, FRAUDS OF OFFICERS.

when the bank examiner was through his examination.

That examination, however, resulted in the closing of PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

the bank.

Wo must assume the jury would have found the

facts as testified to by the plaintiff Steckel. The facts STECKEL V. FIRST NATIONAL BANK OF ALLENTOWN. established, wo have a case of palpable fraud. It is

not an answer to say the plaintiffs ought not to bave Plaintiff, who was a depositor in a National bank, requested

been deceived, and with ordinary care would not have a certificate of deposit drawing interest for a portion of his deposit. The teller of the bank gave him a certifi

been. The fact that the Blumers were respectively cate which purported to be issued by B. & Co., a private

president and cashier of tho National Bank, as well as banking firin, and informed him in the presence of the

leading members of the banking-house of Blumer & cashier of the bank that this was the bank's certificate, Co., was calculated to mislead and deceive, and wbeu upon which assurance plaintiff accepted it. The mem- told in positive terms that the certificates, although bers of the firm were the managing officers of the bank, signed by Blumer & Co., were the certificates of the but had separate place of business in the same town. bank, the plaintiffs may readily have believed it was Held, that the bank was liable to the plaintiff for the

all right. amount of his deposit.

It was urged, however, that even if there was a fraud. CTION by Alfred P. Steckel and others to recover

it does not affect the bank; that an agent can only act A

within the scope of his authority; and that a bank is $3,251.63, a balance of money alleged to be depos

not bound by the fraudulent representations of one or ited with defendant. The opinion states the case.

more of its officers. There is no doubt as to the geneThe court below directed judgment for $251 in favor of

ral rule that an agent can only bind his principal so plaintiffs, from which they took a writ of error.

long as he acts within the scope of his authority; but

we do not think the principle applies in this case. A E. 1. For, Evan Holben, and D. D. Roper, for plaint- bank is responsible for the safe keeping of the money iffs.

of a depositor, and it cannot set up fraud of its own Edward Tarvey, R. E. Wright, Jr., and G. & H. officers as an answer to a demand for repayment. Lear, for defendant.

Public policy forbids it. The plaintiffs, after ascer

taining the fraudulent character of the transaction, PAXSON, J. The principal cause of complaint in tendered the certificates to the bank and demanded this case is that the learned judge of the court below the payment of their original deposit. In other words, withdrew from the jury the consideration of the ques- they rescinded the contract on the ground of fraud. tion of fraud upon the ground that there was not If their allegations are true, they had a right to do so, sufficient evidence to submit it.

and proceed upon the original cause of action. The plaintiffs kept an account with the corporation The question of fraud should have been submitted defendant, and were in the habit of making deposits to the jury. What bas been said sufficiently covers and drawing checks in the usual manner. William H. the points involved. Blumer was the president of the bank; his son, Jacob Judgment reversed and a venire facias de novo Blumer, was the cashier. Three of the directors, in- I awarded.

A

would pay them; that he deposited his money, tooka | ACTION upon a promissory note for 8500, signed by

ZEIGLER V. FIRST NATIONAL BANK OF ALLENTOWN.

unwise to permit its chief officers to occupy a dual

position with divided interests, but the consequences Plaintiff, who was unable to read, deposited money in a

resulting therefrom cannot be visited upon those who National bank and took a certificate of deposit therefor which the officers of the bank represented was a certif

dealt in good faith with the bank. cate of the bank. It was, on its face, the certificate of

This case is ruled in a great measure by Steckel v. a private banking firm, composed of some of the officers First National Bank of Allentown, just decided. It of the bank. Held, that the bank was liable for the was error to reject the evidence contained in plaintiff's amount of the deposit.

offer. The facts offered to be proved amounted to a CTION by Philip Zeigler to recover $2,980.80 alleged fraud upon the plaintiff, and he was entitled to have to be deposited with defendant. At the trial

the question passed upon by a jury. plaintiff proposed to prove that prior to 1874 he had Judgment reversed and a venire de novo awarded. done business at the Union National Bank of Reading; that for his own convenience he wished to change RESH, Plaintiff in Error, v. FIRST NATIONAL BANK his bank, and applied to Blumer, the cashier of the

OF ALLENTOWN. First National Bank of Allentown, the defendant corporation, at its banking house, and told Blumer that Defendant, who had money on deposit in a National bank, he wished to deposit money to be entered on a deposit when demanding payment thereof, was induced by an book, and draw checks as he had done in the other officer of the bank to sign a promissory note, which was bank; that Blumer informed him that the defendant represented to him to be a receipt for the money. He bank did not do business in that manner, but that it

was unable to read English. Held, that he was not would issue certificates of deposit for his deposit and

liable to the bank upon the note. he could draw checks upon the bank and the bank

the defendant below and payable to his own order certificate of deposit, which he was assured was the and indorsed by him in blank. Upon the trial plaintiff certificate of the First National Bank of Allentown by below proved the note. Defendant offered to show in Blumer; that he was unable to read the certificate; substance that at the time the note was made he held that at the same time Blumer gave him a number of a certificate of deposit of the First National Bank of blank checks on said bank; that from time to time Allentown, the plaintiff, for $500, for moneys deposited after that he deposited money and received certificates by him in such bank; that on the 7th of March, 1877, and drew checks on the said bank wbich were paid; he presented the certificate at the bank for payment; that on the 11th of October, 1876, a settlement of ac

that he was requested by an officer of the bank to counts between plaintiff and the bank was had, the

sign what the officer represented to him was a receipt checks drawn by plaintiff were surrendered, plaintiff for the amount, and that under such representation made a deposit and a new certificate of deposit for the

he signed the paper, which was the note in suit; that balance then due ($2,980.80) was given him by the offi

being unable to read or speak the English language he cers of the bank. This certificate was in fact the cer

supposed the paper to be a receipt. This evidence, on tificate of the banking-house of Wm. H. Blumer &

the objection of plaintiff below, was excluded as inCo., a firm doing business near the bank, aud whose

competent. From a judgment for plaintiff defendant members were the managing officers of the bank.

took a writ of error. That plaintiff did not then know that the certificate was that of the firm but believed it to be that of the R. Clay Hamersly and Thomas B. Metzger, for plaintbauk; that he did not know of the existence of the iff in error. firm named until after their failure, and the failure of the bank, which took place in 1877; that at the time

Edward Harvey and R. E. Wright, Jr., for defendant of the issue of the certificate last named the firm

in error. named were insolvent, which fact was known to the

PAXSON, J. While this case differs somewhat in its officers of the bank.

facts from Zeigler v. First National Bank of Allentown, This evidence was, on the objection of defendant,

and Steckel v. First National Bank of Allentown, just excluded by the trial court and in the absence of evi

decided, it is similar in principle, and comes within dence a verdict rendered for defendant. From the

the rulings of those cases. judgment entered upon it plaintiff took a writ of

The third assignment covers all that it is necessary

to discuss. The court rejected evidence offered to John Rupp and John D. Stiles, for plaintiff in error. prove that the note in suit was procured from defendEdward Harvey and R. E. Wright, Jr., for defend

ant below by fraud on the part of the bank officers;

that he went to the bank to receivo payment of a cer. ant in error.

tificate of deposit for $500; that when the money was Paxson, J. When the plaintiff took his money to paid he signed a paper represented by the bank officer the First National Bank of Allentown and handed it to be a receipt for $500, but which afterward turned out to the cashier for deposit the bank becamo responsible to be a note for $500, upon which this suit was brought. therefor. The cashier was tho executive officer of the It is true the plaintiff denies tho facts upon which bank, and authorized by the very nature of his office

this offer was based. But this denial goes for nothing, to receive money on deposit. After receiving it, no as the jury were not allowed to pass upon them. trick or fraud on his part by means of which the money

The evidence should have been admitted. Judgment was passed over to Blumer & Co., a firm in which the reversed and a venire facias do novo awarded. bank officers were largely interested and appeared to have had the control, could absolve the bank from its liability. No class of men have the confidence of the

NEW YORK COURT OF APPEALS ABSTRACT. people to a greater extent than bank officers. Depositors do not deal with them at arms' length, and can be APPEAL - WHAT CASE UPON SHOULD BE - APPELimposed on with the greatest ease by such officials. It LATE COURT WILL NOT ALTER RECORD CONTRARY TO would be monstrous to allow them to take advantage FACTS. — The case upon appeal should be a transcript of the ignorant and unwary by reason of their position of the proceedings upon the trial, or so much of them and the confidence which it inspires. It was doubtless as will present fairly the decision sought to be rea misfortune to this bank to have unworthy officials, viewed. The court is aware of no authority or pracif such should prove to be the case. It certainly was tice which will permit an appellate court to direct such

error.

an alteration of the record as will cause it to stato un- the court. In the case at bar, the father of infants, truly the events of the tri... The cases of Jarvis v. who was living, was born in Rhode Island, removed to Sewall, 40 Barb. 449, and others, do not go to that ex- New York in 1858, where he engaged in business and tent. They only show that record evidence, imper- was married. His wife died in 1873, leaving the infectly proved on the trial, may be exhibited upon the fants, two in number, the fruit of tho marriage. The argument before the appellato tribunal, and this for

father, in 1875, becoming suddenly insane, was taken the reason that it would be idle to send a cause back by his brother, who resided in that State, to Rhodo for a new trial upon an exception no longer tenable, Island, and placed in an asylum there. He recovered and for the same reason a record not 'put in evidence his reason and was discharged from the asylum. In upon the trial may in some cases be presented for the 1877, upon a recurrence of the malady, he was again first time to an appellate court. Order in part reversed placed in the asylum, where he has since remained. and in part affirmed. Carter, appellant, v. Beckwith. Ho nerer returned to New York after leaving 1875. Opinion by Danforth, J.

The infants wero taken to Rhode Island in 1875 and · [Decided Sept. 21, 1880.]

remained there until 1878, when one of them was

secretly taken from a school sho was attending, by a ATTACHMENT — MOTION TO VACATE UNDER CODE, son-in-law of their maternal grandfather, and brought SECTION 682, IN TIME AFTER LEVY UNDER EXECUTION to the grandfather's houso in New York, where she IN ACTION. – Plaintiff obtained an attachment against has since resided. The evidence strongly tended to property of defendants, Oct. 20th. On Oct. 22d he show that she was brought into this Stato for the purperfected judgment in the action and issued execu- pose of having her within the jurisdiction of the courts tion, under which the sheriff levied upon defendants' here in order to the institution of proceedings for property. Subsequent to plaintiff's attachment an guardianship. Neither infant had property in this attachment against defendants' property was issued to State. Held, that the Supreme Court had no jurisdicW. On the 28th Oct. W. moved to vacate plaintiff's tion to appoint a guardian for the infants upon the attachment. The question was whether, under the petition of the maternal grandfather. Order of Geneprovision of Code, section 682, that the subsequentral Term modified so as to reverse the order of Special lienor may move to vacate a prior attachment “before Term appointing a guardian. In matter of guardianthe actual application of the attached property or the ship of Hubbard infants. Opinion by Andrews, J proceeds thereof to the payment of a judgment re- [Decided Sept. 21, 1880.] covered in the action," tho motion was niade in time, the attached property having been levied upon under

VOLUNTARY ASSOCIATION-DISSOLUTION OF-COURTS an execution. Held, that the motion was made in WILL NOT INTERFERE AS TO, WHERE RULES OF ASSOCIAtime. A mere levy under an execution is not such TION PROVIDE REMEDY - NOT PARTNERSHIP. - Upon actual application as to bar such a motion. While a an application by certain members of a voluntary assolevy upon sufficient property has often been held to be ciation instituted for moral, benevolent and social payment of the debt, and to extinguish the judgment, objects, for a dissolution and closing up of the samo it is only constructively so, and with reference to the by a distribution of the funds belonging to it, the equitable rights of others and the judgment may court say that in view of the purposes for which such nevertheless not be in fact paid. The section referred societies are organized they should not be dissolved for to means an actual and real application of the property slight causes, and if at all, only when it is entirely or its proceeds as distinguished from a constructive apparent that the organization has ceased to answer the one. While the property remains before it has been ends of its existence and no other mode of relief is actually transferred to the plaintiff, or in case of a attainable. That there was in such a society strife and sale, before its proceeds have gone to him, it is possible bickerings among the members and hostile feelings for the court to control and determine the liens upon engendered, and contention as to the management of a it, fixing their order. The evil at which the provision fund belonging to the society, no resort having been was aimed does not exist where there is merely a levy, made to the methods provided by tho rules of the sociunder which neither the property nor its proceeds have ety to settle the difficulties, held, rot to be a sufficient actually passed to the creditor. Order granting mo- ground to authorize the interference of the court. tion affirmed. Woodmansee v. Rogers. Opinion by When members claimed to have been chargeable with Finch, J.

a violation of the rules of an association have not been [Decided Sept. 21, 1880.]

called upon to answer under such rules, the power of

the association, to remedy tho evils complained of, beGUARDIANSHIP-COURT MUST HAVE JURISDICTION ing ample and complete, the complaining members aro - WHAT DOES NOT CONSTITUTE JURISDICTION-INFANT not in a position to seek the interposition of a court of SURREPTITIOUSLY BROUGHT INTO STATE. — The Su- equity. Carlen v. Drury, 1 Ves. & B. 154; White v. preme Court has authority to appoint guardians of in- Brownell, 6 Abb. (N. S.) 162. Courts should not, as a fants, but only where the persons or property of such general rule, interfero with the contentions and quarinfants are within its jurisdiction. The jurisdiction rels of voluntary associations so long as the governdoes not depend upon the legal domicile of the infants. ment is fairly and honestly administered, and those It is sufficient if the infant is a resident within the who have grievances should be required, in the first jurisdiction of the court where the proceedings are instance, to resort to tho remedies for redress provided taken. This was determined by the House of Lords by their rules and regulations. In such a case the in Johnstone v. Beattie, 10 Cl. & Fin. 43, in which case complainants are not entitled to relief on the ground it was held that the English Court of Chancery had that the members of the society are partners, for they power to appoint guardians for an infant, who was a are not partners; no partnership exists under such resident in England, notwithstanding she had no prop- circumstances. 3 Kent's Com. 23; In re St. James erty there and her domicile was in Scotlaud. So on Club, 13 Eng. L. & Eq. 589; McMahon v. Rauhr, 47 N. the other hand property gives jurisdiction to appoint Y. 67. When such a society, for its own use, leases a guardian thereof, although tho infant in whose behalf real property, which it fits up, and sub-lets what it the application for guardianship is made is out of the does not require, and thus accumulates a fund, not jurisdiction and a resident abroad. Logan v. unreasonable for the uses of the society, tho members Jacob, 193; Stephens v. James, 1 M. & K. 6:27; Salles v. are not partners as to such fund. Order affirmed. Savignon, 6 Ves. 572. But if the infant is not within Lafond et al., appellants, v. Deems et al. Opinion by the jurisdiction or domiciled there and has no prop- Miller, J. erty therein, there is no basis for the interposition of' [Decided Sept. 21, 1880.]

UNITED STATES CIRCUIT AND DISTRICT 307; Foster v. Mansfield, 3 Metc. 412; Doe v. Knight, COURT ABSTRACT.*

5 Barn. & Cros. 632 (671); Hedge v. Drew, 12 Pick. 141.

District, Minnesota, Feb., 1880. Circ., Minnesota, HUSBAND AND WIFE - VALID MORTGAGE BY WIFE

June, 1880. Herring v. Richards. Opinions by Nel.

son, D. J., and McCrary, C. J. RENDERED INVALID BY FORGERY OF NOTE IT WAS GIVEN TO SECURE - JURISDICTION. — (1) The accommodation note of an individual partner, secured by a RHODE ISLAND SUPREME COURT ABmortgage upon the wife's separate property, and made

STRACT. for the benefit of the firm, is utterly void in the hands of an innocent indorsee, as against the wife of the CONSTITUTIONAL LAW-TAXATION - ASSESSMENT maker, where the name of the wife was forged, prior

FOR STREET SEWER ACCORDING TO FRONTAGE AND to indorsement, is the joint maker of such note, by AREA VALID. -- (1) A statute authorized the city the payee and managing partner of the firm. The of Providence to build sewers, and make assessments mortgage given to secure the note, although duly exe

to pay for them at the rate of sixty cents for each cuted by the husband and wife, is rendered void by front foot of abutting estates upon a street, and one sucb forgery. (2) In such case a Federal court could cent for each square foot of abutting estates, between not assume jurisdiction of a suit by the assignee upop such street and a line not exceeding 150 feet distant the mortgage alone, when the assignor and the mort- from and parallel with such street; provided that where gagor are both citizens of the same State. Sheldon v. any estate is situated between two streets the area Sell, 8 How. 441. Circuit, Iowa, June 23, 1880. Mers

upon which such assessment is made shall not extend man v. Werges. Opinion by Love, D. J.

to more than one-half the distanco between such MARITIME LAW - CONTRACT FOR REPAIR OF VESSEL

streets; and that where any estate is situated at the — JURISDICTION – PRACTICE-LIEN. – A contract for

corner of two streets, that portion of such estate asthe repair of a domestic vessel is a maritime contract. sessed for a sewer in one of such streets shall not be The Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 liable to be assessed upon its area for the cost of conid. 554; Hoole v. Kermit, 59 id. 551-556; The General structing a sewer in the other of such streets, but only Smith, 4 Wheat. 438. A suit to enforce a maritime for its frontage upon such street. Held, that this contract is within the exclusive jurisdiction of the

statute as applied to the compact part of the city was admiralty, "saving to suitors in all cases the right of a not unconstitutional under a provision of the Constitucommon-law remedy, where the common law is com

tion that “the burdens of the State ought to be fairly petent to give it.” 1 U.S. Stat. 77, 89; Vose v. Cock- | distributed." In Debois v. Barker, 4 R. I., a statute croft, 44 N. Ý. 415. The reservation of the act of making abutting estates liable for curbstones set in Congress relates to well-known forms of actions and front, was held valid. In other States it has been reremedies, distinguished alike from those prosecuted in peatedly decided that statutes authorizing assessments rem in courts of admiralty, and from those that are for sewers or other street improvements on the abutpeculiar to courts of equity. A statutory remedy in ting lots according to their frontage, and without the nature of a bill in equity to foreclose a mortgage, regard to value or benefit received, are constitutional for the enforcement of a common-law lien founded and valid. Such assessments under statutes, or city upon a maritime contract, is not within the reservation ordipances authorized by statute, have been decided of the act of Congress limiting the admiralty jurisdic- or recognized to be valid in Pennsylvania. Magee v. tion. A lien is not a collateral contract; it is a right Commonwealth, 46 Penn. St. 358; Stroud v. City of in, or claim against, some interest in the subject of the Philadelphia, 61 id. 253; In re Washington Av., 69 id. contract, created by the law as an incident of the con- 352, 361; in Indiana: Palmer v. Stumph, 29 Ind. 3:29; tract itself. See The Belfast, 7 Wall. 624; Hine v.

in Vermont: Allen v. Drew, 44 Vt. 174; in Ohio: Trevor, 4 id. 555. District, S. D. New York, July 2, Ernst v. Kunkle, 5 Ohio St. 520; Upingtou v. Oviatt, 1880. Town of Pelham v. Schooner Woolsey. Opinion 24 id. 520; in Kansas: Parker v. Challiss, 9 Kans. 155; by Choate, D. J.

in Michigan: Motz v. City of Detroit, 18 Mich. 495; in FRAUDULENT CONVEYANCE - WIEN VOLUNTARY TO

New Jersey: State v. Fuller, 34 N. J. Law, 227; in

Missouri: City of St. Louis v. Clemens, 49 Mo. 522; CHILD, NOT — PRESUMPTION OF ACCEPTANCE OF DEED.

and in California: Emery v. San Francisco Gas Co., -(1) A voluntary conveyance from a parent to his

28 Cal. 345; Chambers v. Satterlee, 40 id. 497, 514; children, by way of settlement, while solvent and free from debt, and not disproportionate to his means, will

People v. Lynch, 51 id. 15. Iu Missouri, an assessbe sustained, as against subsequent creditors, in the

ment for a street improvement on abutting lots, absence of fraud. Ellison v. Ellison, 8 Wheat. 239;

according to their area, has been held valid. City of

St. Louis v. (Eters, 36 Mo. 456. And assessments Reade v. Livingston, 3 Johns. Ch. 481. There is no presumption of constructivo fraud by such settlement,

according to acreage, for the construction of levees,

have been held to be valid in both Missouri and Misas there might be if debts existed and the debtor impaired the rights of creditors. Kehr v. Smith, 20 Wall.

sissippi. See, also, Selby v. Levee Commissioners, 14 31, 35. The rule may be summed up that the gift, con

La. Ann. 434. In Michigan, however, assessments for veyance, and settlement will be upheld “if it be rea

street improvements according to area, not limited to sonable, not disproportionate to the husband's means,

abutting lots, havo been held to be too clearly unequal taking into view his debts and situation, and clear of to be sustained. Tho rule of assessment by frontage any intent, actual or constructive, to defraud credit

is unfair when extended to farm lands. Seeley v. City ors." Subsequent contributions of money, for the

of Pittsburgh, 82 Penn. St. 360; Kaiser v. Weise, 85 id. purpose of paying off incumbrances and improving 366. (2) The statute did not require notice to be given the property, will not render such conveyance void.

of the assessment, nor did it provide for an appeal. (2) In the absence of direct testimony the acceptance

Held, not to render it invalid. Clapp v. City of Hartof the grant will be presumed, after the expiration of

ford, 35 Conn. 66; Stuart v. Palmer, 17 N. Y. Sup. four years, where the grantees held, owned, controlled

23; McMilken v. City of Cincinnati, 4 Ohio St. 394; and managed the property from the time of the con

Allen v. City of Charlestown, 111 Mass. 123; McMillen veyance, and the only occupancy had been by their

v. Anderson, 5 Otto, 37; Davidson v. New Orleans, 6 tenants, and for their sole and exclusive use. Harrison

id. 07. (3) The statute provided for assessment for a v. Trustees, etc., 12 Mass. 456; Hatch v. Hatch, 9 id.

sewer already constructed. Held, that there being no

provision in the Rhode Island Constitution inhibiting * Appearing in 3d Federal Reporter.

retrospective legislation as such, the statute was not invalid on that ground. Howell v. City of Buffalo, 37 that he intended to sign a note for $65 and that he was N. Y. 267; Matter of Van Antwerp, 1 T. & C. (N. Y.) induced to sign it on the pretense that the note sued 423; Butler v. City of Toledo, 5 Ohio St. 225. Cleveland upon was drawn only for $65, and that he was unable 5. Tripp. Opinion by Durfee, C. J.

to read English, it appearing that he depended upon [Decided June 18, 1880.]

the one to whom he gave the note for information as INSOLVENCY — RIGHTS OF CREDITOR

to its contents. The case differs from a case where a

SECURED BY LIEN.- In Rhode Island a creditor who has a claim person is induced by fraud to sign a negotiable note, secured by a lien is entitled to a dividend from the

when be supposed that he was executing an instruFoluntary assignee of his debtor only on such residue

ment of a different character. The defendant in this of his claim as may remain unpaid after he has ex

case intended to execute a negotiable note. In Whithausted the property subject to his lien. In Pennsyl- ney v. Snyder, 2 Lans. (N. Y.) 477, the court say that vania a creditor who has received a part of his debt where a person intends to execute a negotiable note from the sale of property upon which he had a lien is “he is bound to know that he is furnishing the means entitled to a pro rata dividend on the whole amount of whereby third parties may be deceived, and innocently his claim out of the general assets of the debtor in the led to part with their property upon the strength of hands of an assignee to an amount sufficient to pay the

his signature, in ignorance of the true state of facts." residue of his debt in full. Shunk & Freedley's Ap- A sharp distinction is made between such a case and peal, 2 Penn. St. 309; Morris v. Olwine, 22 id. 441;

one where the maker supposed that he was executing

an instrument not a note. Keim's Appeal, 27 id. 42; Brough's Estate, 71 id. 460;

A different doctrine seems Graeff s Appeal, 79 id. 146; Miller's Estate, 82 id. 113.

to have been held in Griffiths v. Kellogg, 39 Wis. 290, In New York and Iowa, on the contrary, such a cred

which the court does not appove. Iowa Supreme Court, itor is entitled to a dividend upon the residue only of June 22, 1880. Fayette County Savings Bank v. Steffes. his debt after exhausting the property subject to his Opinion by Adams, C. J. lien. Strong v. Skinner, 4 Barb. 546; Besley v. Law- USURY-- AS DEFENSE IN EQUITABLE ACTION.-Whenrence, 11 Pai. 581; Midgeley v. Slocomb, 32 How. Pr. ever the parties to an usurious loan are obliged to re43; Dickson v. Chorn, 6 Iowa, 19; Wurtz v. Hart, 13 sort to a court of equity for relief for the foreclosure id. 515. The court prefers the doctrine of the New of securities, or for their redemption, they are forced York and Iowa cases. It accords with the well-estab- to submit to an equitable adjustment of the debt, lished rule in equity, that when one creditor has a lien which is held to be the payment or the loan, with lawupon two funds, and another a lien upon only one of ful interest. All payments of interest in excess of them, the former will be compelled to exhaust the this are held to be under duress, and not voluntary fund upon which he has an exclusive lien, and will be payments of interest, and are applied in liquidation of permitted to resort to the other for the deficiency the principal. Tiffany v. Boatman's Institution, 18 only. Petition of Knowles. Opinion by Matteson, J. Wall. 375, 385; Wheelock v. Lee, 64 N. Y. 242, 245; [Decided July 3, 1880.]

Beach v. Fulton Bank, 3 Wend. 573, 585. U. S. Dis

trict Court, S. D. New York, July 24, 1880. Matter of FINANCIAL LAW.

Hoole. Opinion by Choate, D. J. NEGOTIABLE INSTRUMENT – TRANSFER IN PAYMENT

CRIMINAL LAW. OF ANTECEDENT DEBT SHUTS OUT EQUITIES. - Mere possession of a negotiable instrument produced in evi- ABORTION - BY ADMINISTERING A DRUG — NAME OF dence by the indorsee or assignee when no indorse

DRUG NEED NOT BE STATED — WOMAN ON WHOM COMment is necessary, imports prima facie that he acquired

MITTED NOT AN ACCOMPLICE. — (1) Under a statute it bona fide for full value in the usual course of busi- making it an indictable offense to administer to a ness before maturity, and without notice of any cir- pregnant female, with her consent, any drug or medicumstance impeaching its validity, and that he, as the

cine calculated to produce an abortion, for the purpose of owner, is entitled to recover against the maker, not

effecting that result, held, that it need only be charged withstanding there might be a good defense to the and proven, that a drug or medicine, calculated to proinstrument against the payee. To let in a defense by duce that effect, was administered; the name of the the maker against the assignee, the maker must first drug or medicine need not be stated, nor need it be deprove that there was fraud or illegality in the inception scribed as noxious. State v. Vawter, 7 Blackf. (Ind.)592 ; of the instrument or show circumstances which raise

Rex v. Phillips, 3 Campb. 73. Neither is it uecessary to a strong suspicion of fraud or illegality. When this is specify the kind, quality or quantity of the medicine. done it will devolve upon the holder to show that he

State v. Van Houten, 37 Mo. 357. (2) The woman upon * acquired the instrument bona fide for value in the

whom an abortion is attempted is not an accomplice in usual course of business, while current, and under

the commission of the offense. Thero has been some circumstances which create no presumption that he contrariety of opinion and decision in the courts upon knew the facts which impeach its validity." Daniel

this subject. The rule that she does not stand legally on Neg. Inst., $$ 812-815. That it was taken for the in the situation of an accomplice, but should rather be purpose of liquidating antecedent indebtedness is in regarded as the victim than the perpetrator of the the usual course of business and the one taking it is a

crime, is one which commends itself to one's sense of purchaser for value. It is certainly so to the common justice and right, and there is certainly nothing in our understanding. And the court believes it has been law of accomplices which should be held to contrauniversally so held when the antecedent debt is re

vene it. The doctrine that she is not an accomplice in leased, paid, novated or discharged by the transfer or

the strict legal acceptation has been held in England. assignment. 2 Daniel on Neg. Inst., ch. 39, $1; Hare Rex v. Hargrove, 5 C. & P. 170; Rex v. Boges, 1 B. & & Wallace's notes to Lead. Cas. in Eq. 103 et seq.; Gre

S. 311. This has been followed and adopted in New naux v. Wheeler, 6 Tex. 526; Planters' Bank v. Evans, York. Dunn v. People, 29 N. Y. 523. In Common37 id. 592. Ayers v. Dupree, 27 id. 99, does not conflict

wealth v. Wood, 11 Gray (Mass.), 85, the court say: with this. Texas Supreme Court, March 19, 1880.

“We think the court rightly instructed the jury that Blum v. Loggins. Opinion by Moore, C. J.

the woman was not, under the statute, technically an DEFENSE THAT MAKER WAS INDUCED TO SIGN accomplice, for she could not have been indicted with BY FRAUD -- WHEN UNAVAILABLE. - In an action by him for the offense. Nor do we believe she could be an innocent indorsee for value, upon a promissory indicted for the offense under our statute, and this note for $195, held, that the maker could not set up I liability to indictment is a fair test of determining the

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