-a

animated is a desire for prominence or notoriety in the editorial corps. The real or true motive could be no other than partisan malice or a willful, headlong zeal to promote their partisan interests in the face of their official fidelity to this court, and regardless of all consequences." Suppose the motives here assigned be the true motives which actuated the complainantsdesire for notoriety, and a willful, headlong zeal to promote partisan interests-what had they to do with professional conduct or fitness to practice law? The complainants, in their sworn answers to the rule, aver that in making the publication in question they were acting in good faith, without malice, and for the public good."

Of course we mean to express no opinion on the merits of the controversy between the court below and the complainants. We concede to the court all that has been claimed on their behalf- that the publication in fact was a false and malicious libel and that in making the rule absolute they were actuated by a simple desire to uphold the authority and dignity of the court. If this were a mere question of discretion we are of opinion their order was a mistake. The act of 1879 gives this court jurisdiction to review the discretion of the court below, and we think it was not in this case wisely exercised.

The order which made absolute the rule to show cause why the names of the complainants should not be stricken from the list of attorneys is hereby vacated and the rule discharged, and it is ordered that the complainant be restored to the bar, the costs of this proceeding and writ of error to be paid by the county of Lancaster.

NATIONAL BANKS, WHEN LIABLE FOR FRAUDS OF OFFICERS.

PENNSYLVANIA SUPREME COURT, MAY 3, 1880.

STECKEL V. FIRST NATIONAL BANK OF ALLENTOWN. Plaintiff, who was a depositor in a National bank, requested

a certificate of deposit drawing interest for a portion of his deposit. The teller of the bank gave him a certificate which purported to be issued by B. & Co., a private banking firm, and informed him in the presence of the cashier of the bank that this was the bank's certificate, upon which assurance plaintiff accepted it. The members of the firm were the managing officers of the bank, but had separate place of business in the same town. Held, that the bank was liable to the plaintiff for the amount of his deposit.

ACTION by Alfred P. Steckel and others to recover

$3,251.63, a balance of money alleged to be deposited with defendant. The opinion states the case. The court below directed judgment for $251 in favor of plaintiffs, from which they took a writ of error.

E. 1. Fox, Evan Holben, and D. D. Roper, for plaintiffs.

Edward Darvey, R. E. Wright, Jr., and G. & H. Lear, for defendant.

PAXSON, J. The principal cause of complaint in this case is that the learned judge of the court below withdrew from the jury the consideration of the question of fraud upon the ground that there was not sufficient evidence to submit it.

The plaintiffs kept an account with the corporation defendant, and were in the habit of making deposits and drawing checks in the usual manner. William H. Blamer was the president of the bank; his son, Jacob Blumer, was the cashier. Three of the directors, in

cluding the said William H. Blumer, composed the banking-house of William H. Blumer & Co., which carried on business but a few hundred feet distant from the First National Bank of Allentown. The plaintiffs having money on deposit with the bank, and being desirous of obtaining interest-bearing certificates therefor, called at the bank for that purpose. Dr. A. P. Steckel, one of the plaintiffs, testifies as to what occurred, substantially as follows: "I went to the bank every week or two to make my deposits; some time in August, when I made deposit, I asked the teller, George Straub, does the First National Bank take any money on certificates? He said, 'yes, sir; do you want to leave us some?' I said, 'no, not to-day.' I asked him whether the First National Bank issued certificates of deposit, and as a matter of course pay interest, and he said yes;' then I came there again in September, 1876, and made my ordinary deposit in the bank, and after we were through I said to the teller that I would take the First National Bank certificates for $700. I filled out a check, and he handed me a certificate; I looked at the certificate for $700; it was to be made on demand, and asked him, 'is this the First National Bank certificate?' the answer was, 'yes, sir, it is;' I then said, 'this reads Blumer & Co.; I want this distinctly understood, I want nothing but the First National Bank certificates;' he answered me that this was one and the same thing; that it should pass to the credit of the company, the same as it was before. With this assurance I took that certificate. This was in the presence of the cashier of the bank, Jacob A. Blumer." Two other certificates, aggregating, with the one above mentioned, the sum of $3,000, were obtained under circumstances uot essentially different. There was evidence that the president of the bank recognized them as binding upon the bank, and offered to reinstate the plaintiffs as they were before, when the bank examiner was through his examination. That examination, however, resulted in the closing of the bank.

Wo must assume the jury would have found the facts as testified to by the plaintiff Steckel. The facts established, we have a case of palpable fraud. It is not an answer to say the plaintiffs ought not to have been deceived, and with ordinary care would not have been. The fact that the Blumers were respectively president and cashier of the National Bank, as well as leading members of the banking-house of Blumer & Co., was calculated to mislead and deceive, and when told in positivo terms that the certificates, although signed by Blumer & Co., were the certificates of the bank, the plaintiffs may readily have believed it was all right.

It was urged, however, that even if there was a fraud it does not affect the bank; that an agent can only act within the scope of his authority; and that a bank is not bound by the fraudulent representations of one or more of its officers. There is no doubt as to the general rule that an agent can only bind his principal so long as he acts within the scope of his authority; but we do not think the principle applies in this case. A bank is responsible for the safe keeping of the money of a depositor, and it cannot set up fraud of its own officers as an answer to a demand for repayment. Public policy forbids it. The plaintiffs, after ascertaining the fraudulent character of the transaction, tendered the certificates to the bank and demanded the payment of their original deposit. In other words, they rescinded the contract on the ground of fraud. If their allegations are true, they had a right to do so, and proceed upon the original cause of action.

The question of fraud should have been submitted to the jury. What has been said sufficiently covers the points involved.

Judgment reversed and a venire facias de novo awarded.

ZEIGLER V. FIRST NATIONAL BANK OF ALLENTOWN. Plaintiff, who was unable to read, deposited money in a National bank and took a certificate of deposit therefor which the officers of the bank represented was a certifilcate of the bank. It was, on its face, the certificate of a private banking firm, composed of some of the officers of the bank. Held, that the bank was liable for the amount of the deposit.

A

CTION by Philip Zeigler to recover $2,980.80 alleged

to be deposited with defendant. At the trial plaintiff proposed to prove that prior to 1874 he had done business at the Union National Bank of Reading; that for his own convenience he wished to change his bank, and applied to Blumer, the cashier of the First National Bank of Allentown, the defendant corporation, at its banking house, and told Blumer that he wished to deposit money to be entered on a deposit book, and draw checks as he had done in the other bank; that Blumer informed him that the defendant bank did not do business in that manner, but that it would issue certificates of deposit for his deposit and he could draw checks upon the bank and the bank would pay them; that he deposited his money, took a certificate of deposit, which he was assured was the certificate of the First National Bank of Allentown by Blumer; that he was unable to read the certificate; that at the same time Blumer gave him a number of blank checks on said bank; that from time to time after that he deposited money and received certificates and drew checks on the said bank which were paid; that on the 11th of October, 1876, a settlement of accounts between plaintiff and the bank was had, the checks drawn by plaintiff were surrendered, plaintiff made a deposit and a new certificate of deposit for the balance then due ($2,980.80) was given him by the officers of the bank. This certificate was in fact the certificate of the banking-house of Wm. H. Blumer & Co., a firm doing business near the bank, and whose members were the managing officers of the bank. That plaintiff did not then know that the certificate was that of the firm but believed it to be that of the bank; that he did not know of the existence of the firm named until after their failure, and the failure of the bank, which took place in 1877; that at the time of the issue of the certificate last named the firm named were insolvent, which fact was known to the officers of the bank.

This evidence was, on the objection of defendant, excluded by the trial court and in the absence of evidence a verdict rendered for defendant. From the judgment entered upon it plaintiff took a writ of

error.

John Rupp and John D. Stiles, for plaintiff in error. Edward Harvey and R. E. Wright, Jr., for defendant in error.

PAXSON, J. When the plaintiff took his money to the First National Bank of Allentown and handed it to the cashier for deposit the bank becamo responsible therefor. The cashier was the executive officer of the bank, and authorized by the very nature of his office to receive money on deposit. After receiving it, no trick or fraud on his part by means of which the money was passed over to Blumer & Co., a firm in which the 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 people to a greater extent than bank officers. Depositors do not deal with them at arms' length, and can be imposed on with the greatest ease by such officials. It would be monstrous to allow them to take advantage of the ignorant and unwary by reason of their position and the confidence which it inspires. It was doubtless a misfortune to this bank to have unworthy officials, if such should prove to be the case. It certainly was

unwise to permit its chief officers to occupy a dual position with divided interests, but the consequences resulting therefrom cannot be visited upon those who dealt in good faith with the bank.

This case is ruled in a great measure by Steckel v. First National Bank of Allentown, just decided. It was error to reject the evidence contained in plaintiff's offer. The facts offered to be proved amounted to a fraud upon the plaintiff, and he was entitled to have the question passed upon by a jury.

Judgment reversed and a venire de novo awarded.

RESH, Plaintiff in Error, v. FIRST NATIONAL BANK OF ALLENTOWN.

Defendant, who had money on deposit in a National bank, when demanding payment thereof, was induced by an officer of the bank to sign a promissory note, which was represented to him to be a receipt for the money. He was unable to read English. Held, that he was not liable to the bank upon the note.

ACTION upon a promissory note for $500, signed by

the defendant below and payable to his own order and indorsed by him in blank. Upon the trial plaintiff below proved the note. Defendant offered to show in substance that at the time the note was made he held a certificate of deposit of the First National Bank of Allentown, the plaintiff, for $500, for moneys deposited by him in such bank; that on the 7th of March, 1877, he presented the certificate at the bank for payment; that he was requested by an officer of the bank to sign what the officer represented to him was a receipt for the amount, and that under such representation he signed the paper, which was the note in suit; that being unable to read or speak the English language he supposed the paper to be a receipt. This evidence, on the objection of plaintiff below, was excluded as incompetent. From a judgment for plaintiff defendant took a writ of error.

R. Clay Hamersly and Thomas B. Metzger, for plaintiff in error.

Edward Harvey and R. E. Wright, Jr., for defendant in error.

PAXSON, J. While this case differs somewhat in its facts from Zeigler v. First National Bank of Allentown, and Steckel v. First National Bank of Allentown, just decided, it is similar in principle, and comes within the rulings of those cases.

The third assignment covers all that it is necessary to discuss. The court rejected evidence offered to prove that the note in suit was procured from defendant below by fraud on the part of the bank officers; that he went to the bank to receive payment of a certificate of deposit for $500; that when the money was paid he signed a paper represented by the bank officer to be a receipt for $500, but which afterward turned out to be a note for $500, upon which this suit was brought. It is true the plaintiff denies tho facts upon which this offer was based. But this denial goes for nothing, as the jury were not allowed to pass upon them.

The evidence should have been admitted. Judgment reversed and a venire facías do novo awarded.

NEW YORK COURT OF APPEALS ABSTRACT.

APPEAL-WHAT CASE UPON SHOULD BE-APPELLATE COURT WILL NOT ALTER RECORD CONTRARY TO FACTS. The case upon appeal should be a transcript of the proceedings upon the trial, or so much of them as will present fairly the decision sought to be reviewed. The court is aware of no authority or practice which will permit an appellate court to direct such

an alteration of the record as will cause it to state untruly the events of the trial. The cases of Jarvis v. Sewall, 40 Barb. 449, and others, do not go to that extent. They only show that record evidence, imperfectly proved on the trial, may be exhibited upon the argument before the appellato tribunal, and this for the reason that it would be idle to send a cause back for a new trial upon an exception no longer tenable, and for the same reason a record not put in evidence upon the trial may in some cases be presented for the first time to an appellate court. Order in part reversed and in part affirmed. Carter, appellant, v. Beckwith. Opinion by Danforth, J.

[Decided Sept. 21, 1880.]

ATTACHMENT-MOTION TO VACATE UNDER CODE, SECTION 682, IN TIME AFTER LEVY UNDER EXECUTION IN ACTION. - Plaintiff obtained an attachment against property of defendants, Oct. 20th. On Oct. 22d he perfected judgment in the action and issued execution, under which the sheriff levied upon defendants' property. Subsequent to plaintiff's attachment an attachment against defendants' property was issued to W. On the 28th Oct. W. moved to vacate plaintiff's attachment. The question was whether, under the provision of Code, section 682, that the subsequent lienor may move to vacate a prior attachment "before the actual application of the attached property or the proceeds thereof to the payment of a judgment recovered in the action," the motion was made in time, the attached property having been levied upon under an execution. Held, that the motion was made in time. A mere levy under an execution is not such actual application as to bar such a motion. While a levy upon sufficient property has often been held to be payment of the debt, and to extinguish the judgment, it is only constructively so, and with reference to the equitable rights of others and the judgment may nevertheless not be in fact paid. The section referred to means an actual and real application of the property or its proceeds as distinguished from a constructive one. While the property remains before it has been actually transferred to the plaintiff, or in case of a sale, before its proceeds have gone to him, it is possible for the court to control and determine the liens upon it, fixing their order. The evil at which the provision was aimed does not exist where there is merely a levy, under which neither the property nor its proceeds have actually passed to the creditor. Order granting motion affirmed. Woodmansee v. Rogers. Opinion by Finch, J.

[Decided Sept. 21, 1880.]

GUARDIANSHIP-COURT MUST HAVE JURISDICTION WHAT DOES NOT CONSTITUTE JURISDICTION-INFANT SURREPTITIOUSLY BROUGHT INTO STATE. - The Supreme Court has authority to appoint guardians of infants, but only where the persons or property of such infants are within its jurisdiction. The jurisdiction does not depend upon the legal domicile of the infants. It is sufficient if the infant is a resident within the jurisdiction of the court where the proceedings are taken. This was determined by the House of Lords in Johnstone v. Beattie, 10 Cl. & Fin. 43, in which case it was held that the English Court of Chancery had power to appoint guardians for an infant, who was a resident in England, notwithstanding she had no property there and her domicile was in Scotland. So on the other hand property gives jurisdiction to appoint a guardian thereof, although the infant in whose behalf the application for guardianship is made is out of the jurisdiction and a resident abroad. Logan v. Jacob, 193; Stephens v. James, 1 M. & K. 627; Salles v. Savignon, 6 Ves. 572. But if the infant is not within the jurisdiction or domiciled there and has no property therein, there is no basis for the interposition of

the court. In the case at bar, the father of infants, who was living, was born in Rhode Island, removed to New York in 1858, where he engaged in business and was married. His wife died in 1873, leaving the infants, two in number, the fruit of the marriage. The father, in 1875, becoming suddenly insane, was taken by his brother, who resided in that State, to Rhodo Island, and placed in an asylum there. He recovered his reason and was discharged from the asylum. In 1877, upon a recurrence of the malady, he was again placed in the asylum, where he has since remained. He never returned to New York after leaving in 1875. The infants were taken to Rhode Island in 1875 and remained there until 1878, when one of them was secretly taken from a school sho was attending, by a son-in-law of their maternal grandfather, and brought to the grandfather's house in New York, where she has since resided. The evidence strongly tended to show that she was brought into this State for the purpose of having her within the jurisdiction of the courts here in order to the institution of proceedings for guardianship. Neither infant had property in this State. Held, that the Supreme Court had no jurisdiction to appoint a guardian for the infants upon the petition of the maternal grandfather. Order of General Term modified so as to reverse the order of Special Term appointing a guardian. In matter of guardianship of Hubbard infants. Opinion by Andrews, J [Decided Sept. 21, 1880.]

VOLUNTARY ASSOCIATION-DISSOLUTION OF-COURTS WILL NOT INTERFERE AS TO, WHERE RULES OF ASSOCIA

TION PROVIDE REMEDY — NOT PARTNERSHIP, — - Upon an application by certain members of a voluntary association instituted for moral, benevolent and social objects, for a dissolution and closing up of the samo by a distribution of the funds belonging to it, the court say that in view of the purposes for which such societies are organized they should not be dissolved for slight causes, and if at all, only when it is entirely apparent that the organization has ceased to answer the ends of its existence and no other mode of relief is attainable. That there was in such a society strife and bickerings among the members and hostile feelings engendered, and contention as to the management of a fund belonging to the society, no resort having been made to the methods provided by tho rules of the society to settle the difficulties, held, not to be a sufficient ground to authorize the interference of the court. When members claimed to have been chargeable with a violation of the rules of an association have not been called upon to answer under such rules, the power of the association, to remedy tho evils complained of, being ample and complete, the complaining members are not in a position to seek the interposition of a court of equity. Carlen v. Drury, 1 Ves. & B. 154; White v. Brownell, 6 Abb. (N. S.) 162. Courts should not, as a general rule, interfero with the contentions and quarrels of voluntary associations so long as the government is fairly and honestly administered, and those who have grievances should be required, in the first instance, to resort to the remedies for redress provided by their rules and regulations. In such a case the complainants are not entitled to relief on the ground that the members of the society are partners, for they are not partners; no partnership exists under such circumstances. 3 Kent's Com. 23; In re St. James Club, 13 Eng. L. & Eq. 589; McMahon v. Rauhr, 47 N. Y. 67. When such a society, for its own use, leases real property, which it fits up, and sub-lets what it does not require, and thus accumulates a fund, not unreasonable for the uses of the society, tho members are not partners as to such fund. Order affirmed. Lafond et al., appellants, v. Deems et al. Opinion by Miller, J.

[Decided Sept. 21, 1880.]

HUSBAND AND WIFE-VALID MORTGAGE BY WIFE RENDERED INVALID BY FORGERY OF NOTE IT WAS

GIVEN TO SECURE― JURISDICTION. —(1) The accommodation note of an individual partner, secured by a mortgage upon the wife's separate property, and made for the benefit of the firm, is utterly void in the hands of an innocent indorsee, as against the wife of the maker, where the name of the wife was forged, prior to indorsement, as the joint maker of such note, by the payee and managing partner of the firm. The mortgage given to secure the note, although duly executed by the husband and wife, is rendered void by such forgery. (2) In such case a Federal court could not assume jurisdiction of a suit by the assignee upon the mortgage alone, when the assignor and the mortgagor are both citizens of the same State. Sheldon v. Sell, 8 How. 441. Circuit, Iowa, June 23, 1880. Mersman v. Werges. Opinion by Love, D. J.

MARITIME LAW-CONTRACT FOR REPAIR OF VESSEL - JURISDICTION - PRACTICE-LIEN. A contract for the repair of a domestic vessel is a maritime contract. The Josephine, 39 N. Y. 19; Brookman v. Hamill, 43 id. 554; Hoole v. Kermit, 59 id. 554-556; The General Smith, 4 Wheat. 438. A suit to enforce a maritime contract is within the exclusive jurisdiction of the admiralty, "saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it." 1 U. S. Stat. 77, § 9; Vose v. Cockcroft, 44 N. Y. 415. The reservation of the act of Congress relates to well-known forms of actions and remedies, distinguished alike from those prosecuted in rem in courts of admiralty, and from those that are peculiar to courts of equity. A statutory remedy in the nature of a bill in equity to foreclose a mortgage, for the enforcement of a common-law lien founded upon a maritime contract, is not within the reservation of the act of Congress limiting the admiralty jurisdiction. A lien is not a collateral contract; it is a right in, or claim against, some interest in the subject of the contract, created by the law as an incident of the contract itself. See The Belfast, 7 Wall. 624; Hine v. Trevor, 4 id. 555. District, S. D. New York, July 2, 1880. Town of Pelham v. Schooner Woolsey. Opinion by Choate, D. J.

FRAUDULENT CONVEYANCE - WHEN VOLUNTARY TO CHILD, NOT - PRESUMPTION OF ACCEPTANCE OF DEED.

(1) A voluntary conveyance from a parent to his children, by way of settlement, while solvent and free from debt, and not disproportionate to his means, will be sustained, as against subsequent creditors, in the absence of fraud. Ellison v. Ellison, 8 Wheat. 239; Reade v. Livingston, 3 Johns. Ch. 481. There is no presumption of constructive fraud by such settlement, as there might be if debts existed and the debtor impaired the rights of creditors. Kehr v. Smith, 20 Wall. 31, 35. The rule may be summed up that the gift, conveyance, and settlement will be upheld "if it be reasonable, not disproportionate to the husband's means, taking into view his debts and situation, and clear of any intent, actual or constructive, to defraud creditors." Subsequent contributions of money, for the purpose of paying off incumbrances and improving the property, will not render such conveyance void. (2) In the absence of direct testimony the acceptance of the grant will be presumed, after the expiration of four years, where the grantees held, owned, controlled and managed the property from the time of the conveyance, and the only occupancy had been by their tenants, and for their sole and exclusive use. Harrison v. Trustees, etc., 12 Mass. 456; Hatch v. Hatch, 9 id.

* Appearing in 3d Federal Reporter.

5 Barn. & Cres. 632 (671); Hedge v. Drew, 12 Pick. 141. District, Minnesota, Feb., 1880. Circ., Minnesota, June, 1880. Herring v. Richards. Opinions by Nelson, D. J., and McCrary, C. J.

RHODE ISLAND SUPREME COURT ABSTRACT.

CONSTITUTIONAL LAW TAXATION -ASSESSMENT FOR STREET SEWER ACCORDING TO FRONTAGE AND AREA VALID. - (1) A statute authorized the city of Providence to build sewers, and make assessments to pay for them at the rate of sixty cents for each front foot of abutting estates upon a street, and one cent for each square foot of abutting estates, between such street and a line not exceeding 150 feet distant from and parallel with such street; provided that where any estate is situated between two streets the area upon which such assessment is made shall not extend to more than one-half the distance between such streets; and that where any estate is situated at the corner of two streets, that portion of such estate assessed for a sewer in one of such streets shall not be liable to be assessed upon its area for the cost of constructing a sewer in the other of such streets, but only for its frontage upon such street. Held, that this statute as applied to the compact part of the city was not unconstitutional under a provision of the Constitution that "the burdens of the State ought to be fairly distributed." In Debois v. Barker, 4 R. I., a statute making abutting estates liable for curbstones set in front, was held valid. In other States it has been repeatedly decided that statutes authorizing assessments for sewers or other street improvements on the abutting lots according to their frontage, and without regard to value or benefit received, are constitutional and valid. Such assessments under statutes, or city ordinances authorized by statute, have been decided or recognized to be valid in Pennsylvania. Magee v. Commonwealth, 46 Penn. St. 358; Stroud v. City of Philadelphia, 61 id. 255; In re Washington Av., 69 id. 352, 361; in Indiana: Palmer v. Stumph, 29 Ind. 329; in Vermont: Allen v. Drew, 44 Vt. 174; in Ohio: Ernst v. Kunkle, 5 Ohio St. 520; Upington v. Oviatt, 24 id. 520; in Kansas: Parker v. Challiss, 9 Kans. 155; in Michigan: Motz v. City of Detroit, 18 Mich. 495; in New Jersey: State v. Fuller, 34 N. J. Law, 227; in Missouri: City of St. Louis v. Clemens, 49 Mo. 522; and in California: Emery v. San Francisco Gas Co., 28 Cal. 345; Chambers v. Satterlee, 40 id. 497, 514; People v. Lynch, 51 id. 15. In Missouri, an assessment for a street improvement on abutting lots, according to their area, has been held valid. City of St. Louis v. Eters, 36 Mo. 456. And assessments according to acreage, for the construction of levees, have been held to be valid in both Missouri and Mississippi. See, also, Selby v. Levee Commissioners, 14 La. Ann. 434. In Michigan, however, assessments for street improvements according to area, not limited to abutting lots, have been held to be too clearly unequal to be sustained. The rule of assessment by frontage is unfair when extended to farm lands. Seeley v. City of Pittsburgh, 82 Penn. St. 360; Kaiser v. Weise, 85 id. 366. (2) The statute did not require notice to be given of the assessment, nor did it provide for an appeal. Held, not to render it invalid. Clapp v. City of Hartford, 35 Conn. 66; Stuart v. Palmer, 17 N. Y. Sup. 23; McMilken v. City of Cincinnati, 4 Ohio St. 394; Allen v. City of Charlestown, 111 Mass. 123; McMillen v. Anderson, 5 Otto, 37; Davidson v. New Orleans, 6 id. 97. (3) The statute provided for assessment for a sewer already constructed. Held, that there being no provision in the Rhode Island Constitution inhibiting retrospective legislation as such, the statute was not