know that Smith was connected with any bank or money institution."

The case under another aspect was before us on a former occasion. Merchants' Bank v. The State Bank, 10 Wall. 604. We there held, after the most careful consideration, that the legal title to the certificates was, by the purchases made by its cashier, vested in the State Bank. We find no reason to change this view. The finding of the court shows clearly that Hartwell knew when he received the certificates that they did not belong to Mellen, Ward & Co., and that they did belong to the plaintiff, and that Smith represented the plaintiff as its agent. Hartwell was privy to the entire fraud from the beginning to the end, and was a participant in its consummation.

It is not denied that Smith acted in entire good faith. What he did was honestly done, and it was according to the settled and usual course of business. Hartwell was the agent of the United States. He was appointed by them and acted for them. He did, so far as Smith knew, only what it was his duty to do, and what he did constantly for others, and it is not denied that it was according to the law of the land. 12 Stat. 711. Smith no more suspected fraud, and had no more reason to suspect it, than any other of the countless parties who dealt with the sub-treasury in like manner.

There could hardly be a stronger equity than that in favor of the plaintiff. It remains to consider the law of the case.

The interposition of equity is not necessary where a trust fund is perverted. The cestui que trust can follow it at law as far as it can be traced. May v. Leclere, 11 Wall. 217; Taylor v. Plummer, 3 Maul. & Sel. 562.

Where a draft was remitted by a collecting agent to a sub-agent for collection, and the proceeds were applied by the sub-agent in payment of the indebtedness of the agent to himself, in ignorance of the rights of the principal, this court held that, there being no new advance made and no new credit given by the subagent, the principal was entitled to recover against him. Wilson & Co. v. Smith, 3 How. 763; see, also, Bank of the Metropolis v. The New England Bank, 6 How. 212.

A party who, without right and with guilty knowledge, obtains money of the United States from a disbursing officer, becomes indebted to the United States, and they may recover the amount. An action will lie whenever the defendant has received money which is the property of the plaintiff, and which the defendant is obliged by natural justice and equity to refund. The form of the indebtedness or the mode in which it was incurred is immaterial. Bayne et al. v. The United States, 3 Otto, 643.

The United States must use due diligence to charge the indorsers of a bill of exchange, and they are liable to damages if they allow one which they have accepted to go to protest. U. S. v. Barker, 12 Wheat. 560; Bank U. S. v. The United States, 2 How. 711; United States v. Bank of the Metropolis, 15 Pet. 378.

In these cases and many others that might be cited, the rules of law applicable to individuals were applied to the United States. Here the basis of the liability insisted upon is an implied contract by which they might well become bound in virtue of their corporate character. Their sovereignty is in no wise involved. The cases of The Atlantic Bank v. The Merchants' Bank, 10 Gray, 532, and Skinner v. The Merchants' Bank, 4 Allen, 290, are in their facts strikingly like th

case before us, and they involved exactly the same point. It was held in each of those cases, after an elaborate examination of the subject, that the defrauded bank was entitled to recover.

But surely it ought to require neither argument nor authority to support the proposition that where the money or property of an innocent person has gone into the coffers of the nation by means of a fraud to which its agent was a party, such money or property cannot be held by the United States against the claim of the wronged or injured party.

The agent was agent for no such purpose. His doings were vitiated by the underlying dishonesty and could confer no rights upon his principal.

The appellee recovered below the amount claimed. A different result here would be a reproach to our jurisprudence.

The judgment of the Court of Claims is affirmed.

The Court of Common Pleas of Clarion county, where the case was tried, charged upon the material points in substance as follows: The certification of a check written out would contain a statement that the drawer had funds sufficient to meet it in the bank, applicable to its payment, and an agreement on behalf of the bank that these funds should be retained and paid upon the check whenever it was presented. The cashier has a right, by virtue of his office, to make this certificate when the drawer has funds. Cook v. State Bank, 52 N. Y. 96. Even if the drawer had no funds we apprehend that the certificate of the cashier would hold the bank when the transaction was within the range of its legitimate business, but the acts of the cashier, or other officer of the bank, only bind the stockholders when such acts are within the regular and just sphere of banking transactions. Lloyd v. West Branch Bank, 3 Harris, 172. We do not think this transaction within such sphere. The certificate of the cashier upon the paper upon which suit has been brought would not, therefore, bind the stockholders, without proof that they authorized him to make such certificate, or without proof of such usage and practice on the part of the cashier as would justify third persons in believing

that such usage was authorized. The judgment was for the defendants and plaintiff took a writ of error. PAXSON, J. This was a suit brought against the defendants, an unincorporated banking association, to recover the amount of a check held by the plaintiffs, a copy of which is here given ut supra.

The J. Y. Foster who certified the check is the cashier of the defendants' bank. It was alleged upon the trial, and there is evidence tending to prove, that the certificate of Mr. Foster was a forgery. Mr. Foster has recognized it and confirmed it by his subsequent acts and declarations.

We do not regard the question of the alleged forgery as an important element in the discussion of this case. It was conceded that at the time McCollough drew the check upon the bank he had no funds there, and no right to draw. It is also apparent that the check was entirely out of the usual course of banking business. This is plain from the face of the instrument. Instead of being a mere order upon a bank to pay a certain sum of money to a person therein designated, or to bearer, it has the significant indorsement in one corner, "to hold as collateral for 1,000 P. T. oil," etc. This indicates plainly that the check was given merely as collateral security for the delivery of the oil. If any doubt could exist upon this point, it is put at rest by the testimony of Dorsey, the plaintiff, himself. He says: "The first check was given for borrowed oil; if the oil was not returned, the check was to be paid; that check was carried for thirty days; supposed it was all right and not forged. The second check was taken when oil was advancing, and I would not extend the check without he would give me a check which would secure me for the return of the oil." If the certificate of Foster that the check was "good when properly indorsed" is to bind the bank, then the cashier has made the bank security for the delivery of 1,000 barrels of oil. This he could not do without authority. It is an act entirely outside of any of the ordinary recognized duties of the cashier of a bank. There is not a word in the evidence to show that the defendants, or any of them, knew of this transaction, much less sanctioned it. An attempt was made to show a similar course of dealing by the bank as to prior transactions; that is to say, to certify checks drawn without funds, to be held as collateral for oil. It was not successful, however. The checks certified were what the witnesses call "straight checks," by which we understand commercial checks for the payment of money, free from clog or condition. As to such checks, it is not outside the line of a cashier's duties to certify them when requested, if the drawer has funds in the bank. It has been decided that he has a right to make such a certificate by virtue of his office. Cook v. State Bank, 52 N.Y. 96. The effect of such a certificate we need not discuss, as the question is not before us. Nor need we consider at length the proposition that the plaintiff was a bona fide holder for value. The face of the check was notice that it was not drawn in the usual course of business; that it was not a commercial check. The plaintiff's own testimony shows, as we have seen, that he was only to hold it as a security for the oil. He had no right to draw the money upon the check until default in the delivery of the oil. There was ample to put him upon inquiry as to the authority of the cashier.

We are of the opinion that the learned judge of the court below was entirely accurate in his rulings embraced in the first assignment. This practically dis

poses of the case. We may say, however, in regard to the fifth assignment, that the point referred to was not based upon any evidence in the case. There was no error, therefore, in declining to answer it. Judgment affirmed.

COURT OF APPEALS ABSTRACT.

BOUNDARIES.

When fixed monuments do not govern courses in deed. -The rule that in deeds of land, courses, distances and quantities must yield to natural or artificial monuments is not an inflexible one. It applies with less force to monuments which are artificial than to natural, permanent monuments, and when there is any thing in the description which shows that the courses and distances are right in themselves they will prevail, because the primary object in all cases is to carry out the intention of the parties. Accordingly, when it is apparent from the face of the deed that the intention was to convey a specific quantity of land, if the courses and distances given would include such quantity, and the description by monuments embraces more or less, the former should be followed. Judgment below affirmed. Higginbotham v. Stoddard, appellant. Opinion by Miller, J.

[Decided January 15, 1878. Reported below, 9 Hun, 1.]

COMMON CARRIER.

Stipulations in bill of lading exempting carrier from liability: when shipper bound by.—A carrier received goods for shipment. Afterward, on the same day, the carrier sent to the shipper a bill of lading, wherein it was provided that the carrier should be exempt from liability for loss from fire. The shipper procured insurance from plaintiff, and the goods were thereafter, while being transported, burned, without negligence on the part of the carrier. Plaintiff, having paid the loss, brought action against the carrier. Held, that plaintiff had only the rights of the shipper as to holding the carrier liable; that if the goods had not left the place of shipment at the time the bill of lading was received by the shipper, he would be bound by the condition exempting from liability for loss by fire, and it was for plaintiff to show that they had then left to relieve him from such condition. Order below affirmed. Germania Fire Ins. Co., appellant, v. Memphis' & Charleston R. R. Co. Opinion by Rapallo, J. [Decided January 15, 1878. Reported below, 7 Hun, 233.]

CORPORATION.

When knowledge of officer is knowledge of corporation: president of bank.-G. was president of a bank and controlled its business, and was also executor, having in trust an estate. He was largely indebted to the bank, which was on that account in an embarrassed condition, and G. was also embarrassed financially and unable to pay what he was owing. Nearly $17,000 belonging to the estate was on deposit in the bank. G. sold to the estate stock in the bank belonging to him for $17,000, and in payment thereof drew his check as executor against the fund on deposit. This amount he deposited to bis own individual account in the bank. Held, that in the transaction the knowledge of G. acquired as executor and as an individual was imputable to the bank when it received on deposit the moneys paid by G., as executor, for the stock, and the stock being an improper investment of trust funds, the bank was liable to the cestui que trust for the profit it made out of the transaction, which was

the amount of moneys received by it from the funds of the estate and credited to the individual account of G. Judgment affirmed. Holden v. New York & Erie Bank, appellant. Opinion by Folger, J. Church, C. J., Miller and Earl, JJ., concur. [Decided January 29, 1878.]

INDORSEMENT.

Accommodation indorser of note secured by mortgage: holder not bound to look first to mortgage. - Defendant was accommodation indorser upon notes discounted by a bank, and to secure which the bank had taken a mortgage from the maker. Held, that the bank was not bound to first exhaust its remedy on the mortgage, but might bring its action against defendant in the first instance, nor did it alter the case that the notes were given to pay up an antecedent indebtedness, and that defendant was known to the bank to be an accommodation indorser. Judgment below affirmed. First National Bank of Buffalo v. Wood. Opinion by Miller, J.

[Decided December 11, 1877.]

LEASE.

1. Surrender of, by operation of law: making new lease. Although since the statute of frauds a parol contract for a new lease of the same premises may operate as a surrender in law of a term created by a lease in writing and under seal, such new lease must be a valid one, and a parol lease for seven years would not operate as a surrender. Judgment below affirmed. Coe v. Hobby, appellant. Opinion by Allen, J.

2. Reduction of rent not making new lease.- A surrender of an existing lease and the granting of a new one cannot be implied from an agreement to reduce the rent. The new agreement becomes a part of the antecedent one, and the two constitute a lease for the unexpired term. Ib.

[Decided January 15, 1878. Reported below, 7 Hun, 157.1

MASTER AND SERVANT.

1. When relation does not exist so as to render liable for negligence · A number of persons, who had severally caused to be cut and placed in the Racket river a large number of saw logs for the purpose of being floated down the river to their respective mills during the high water of the spring of 1867, made a contract with a firm to drive all the logs down the river and deliver them at the booms of the respective parties. Other logs belonging to other parties were also floated down the river, the other parties taking charge of driving them. All these logs were intermingled promiscuously in the stream. By the negligence of those having charge of driving the logs, a number of them dammed up against a town bridge and carried it away and destroyed it. Held, that the firm was not the agent or servant of the parties owning the logs so as to make such parties or any of them responsible for its negligence, and such parties employing it were neither jointly nor severally responsible for the loss of the bridge. Judgment below reversed. Town of Pierpont v. Loveless et al., appellants. Opinion by Rapallo, J. 2. Constitutional law: who cannot raise question of constitutionality of act. By an act of legislature passed in 1850 the Racket river was declared a public highway for the purpose of floating logs. It was claimed by plaintiff that this act gave defendants no right to put these logs in the river, as the act was unconstitutional in not providing for compensation to the ri

parian owners. Held, that the riparian owners only could set up this objection of unconstitutionality. Ib. 3. Public right to float logs on small streams. - The law of this State recognizes the right of the public to use such streams through private property for rafting and floating logs as far as necessary for public accommodation. Ib.

[Decided January 29, 1878.]

PLEADING.

Complaint not stating facts sufficient to constitute cause of action: action against receiver. - A complaint alleged that plaintiff was "entitled to the possession of, and the rents, issues and profits" of certain land described; that in an action in the Supreme Court between the defendants, except one Cameron, Cameron was appointed receiver of the rents and profits of the land, and a large sum of such rents, etc., had come into his hand; that plaintiff had demanded the same and payment had been refused by Cameron, and asked relief that Cameron should account for the moneys received by him as receiver, and be restrained from paying over the moneys, and be required to pay the same into court. No judgment or relief was asked against any one except the receiver. The complaint did not allege any facts showing that the plaintiff was entitled to the rents and profits, or allege that he ever owned or possessed the premises. Held, that the allegation that plaintiff was entitled to the possession of the land, etc., was a mere allegation of a conclusion of law, and the complaint did not state facts sufficient to constitute a cause of action. Judgment below affirmed. Sheridan v. Jackson. Opinion by Earl, J. [Decided January 15, 1878. Reported below, 10 Hun, 89.]

NOTES OF RECENT DECISIONS.

Agency: agent cannot act for two principals.-The law will not allow a person to act as agent for two persons standing in positions antagonistic to each other, and to demand and receive compensation from each, without the full consent of both parties freely given. Supreme Court of Wisconsin, Feb. 5th, 1877. Meyer v. Hanchett.

Attorney: lien of.-The lien of an attorney for services rendered in obtaining a judgment is not defeated by the dormancy of the judgment. If the judgment is revived, and the money is made thereon, the lien is still good. Supreme Court of Georgia, Jan., 1878. Jenkins v. Stephens.

Common carrier: liability for loss by Chicago fire. -Suit by appellee for goods not delivered. Defense, that, without the fault of the carrier, the goods were destroyed in the great Chicago fire of 1871. Held, (1) that this fire was not the act of God so as to release common carriers from liabilities as imposed by the common law. Supreme Court, Illinois, Jan. 21st, 1877. Dispatch Transit Co. v. Thielbar.

Constitutional law: statute as to killing cattle.That part of the statute of June 22, 1867, which gives to the owner of live stock "double the value of his property injured, killed or destroyed" on a railroad track, in case the same is not paid within thirty days after demand therefor is made upon the company, is unconstitutional and void. Supreme Court, Nebraska, Oct., 1877. Atchison & Neb. R. R. Co. v. Baty.

Constitutional law: impairing obligation of contracts.-A State law which increases homestead ex

emptions, so far as it applies to debts previously contracted, impairs the obligation of contracts, and is unconstitutional and void. Supreme Court of Alabama, December, 1877. Wilson v. Brown.

Eminent domain: erection of telegraph on line of railroad.-A railroad company may, for its own use, in operating its road, construct a telegraph line over and along its right of way, and in so doing, cut down, if necessary, trees standing upon its right of way, without subjecting itself to any additional claim of the original land-owner for compensation. If such line of telegraph is built by the railroad company and another party at their joint expense and for their joint | use, the latter is only responsible to the land-owner for the damages caused by the additional burden, if any there be, cast upon the easement by its use of the telegraph line. Supreme Court, Kansas, Jan., 1877. Western Union Telegraph Co. v. Rich.

Estoppel: when unconstitutionality of law cannot be set up. The plaintiff is a property owner on Ellsworth avenue, and petitioned councils for the improvement of said avenue in accordance with the Penn avenue Act, was elected a commissioner, and as such gave his time and energies to the work of making said improvement. When assessments were laid on the abutting property for the payment of the cost of improvement, he refused to pay his assessment per foot front, alleging that it was exorbitant and unconstitutional; and contended for general taxation as the legal mode of paying the cost. The city brought suit for the amount of his assessment and the court below gave judgment against him, holding that his own acts estopped him from alleging the unconstitutionality of the act under which the improvement was made. On appeal to this court the judgment of the court below was affirmed. Supreme Court of Pennsylvania, Jan. 7th, 1878. Bidwell v. City of Pittsburgh.

Maritime law: neglect of vessel to display light.-Before a conviction can be had for a violation of the following section (§ 4233, rule 10), "All vessels, whether steam vessels or sail vessels, when at anchor in roadsteads or fairways, shall, between sunset and sunrise, exhibit where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a globular lantern of eight inches in diameter, and so constructed as to show a clear, uniform, and unbroken light, visible all around the horizon, and at a distance of at least one mile," it must be made to appear that before the time of filing the libel the vessel had been seized by the collector of customs. Should the light be extinguished, from some unusual and unexpected cause, for a short time, not from want of proper care on the part of the owners of the vessel, it would not render such owners liable to prosecution. U. S. District Court, E. D. Texas, December, 1877. In re Eclipse. Municipal corporation: liability of, for negligence in executing work for owner of property.- By section 23 of the Public Health Act, in the case of a house being insufficiently drained, the local authority "shall by written notice require" the owner to make a covered drain emptying into any sewer which they may use; and, if the notice be not complied with, may do the work required, and recover in a summary manner the expenses incurred by them in so doing from the owner. Held, that, if the owner waive his prima facie right to make the drain himself, and procure it to be made by the servants of the local authority with their consent, the local authority, in their public capacity, are liable for the negligence of their servants. English High

Court of Justice, Dec. 21, 1877, Q. B. Div. Hall v. Mayor of Batley (37 L. T. Rep. [N. S.] 710).

Sale of personal property: insolvency of vendee: vendor's lien: warehousemen: actual delivery.— Goods remained in the possession of the appellants as unpaid vendors, but the purchaser paid rent for them to the appellants as warehousemen, and the goods were transferred into the name of the purchaser in the appellants' books. Held (reversing the judgment of the court below), that, as no actual delivery had been made, the vendor's lien revived upon the insolvency of the purchaser, as against his assignees. English Privy Council, Dec. 6, 1877. Grice v. Richardson (37 L. T. Rep. [N. S.] 677).

RECENT BANKRUPTCY DECISIONS.

COMPOSITION.

Examination of bankrupt.—At the second meeting in composition, an opposing creditor may examine the alleged bankrupt touching the question of best interest of the creditors; and the alleged bankrupt may be directed to produce his books and papers to be used on such examination. U. S. Dist. Ct., S. D. New York. In re Ash, 17 Nat. Bankr. Reg. 19.

CONTRACT.

1. With third party in consideration of forbearance of bankruptcy proceedings.- The Bankrupt Act does not forbid the creditor of an insolvent debtor to take a contract or covenant from any third party, in consideration of forbearance to institute proceedings in bankruptcy against such debtor; such a transaction is not a violation of the act or of public policy. But if such creditor has received a transfer of property from the debtor, having, at the time, knowledge or reasonable cause to believe the debtor to be then insolvent, the contract is without consideration, and there can be no recovery upon it. Ct. of Appeals, Maryland. Ecker v. McAllister, 17 Nat. Bankr. Reg. 42.

2. Creditor receiving preference may not institute proceedings. No creditor who has received a preference, having, at the time, reasonable cause to believe his debtor insolvent, is authorized to institute proceedings in bankruptcy. The debtor cannot be admitted as a witness to testify as to his intent in making the transfer. Where the probable consequence of the act is to give a preference, he will be conclusively presumed to have intended to give such preference. Ib.

DISCHARGE.

When it will not be set aside. Where the specifications filed in opposition to a discharge have been over ́looked and a discharge granted, such error or irregularity is one which is the subject of review by the Circuit Court. Where proceedings for a review are not taken within the time prescribed by the rules of the Circuit Court, and the bankrupt has in the meantime acted upon his discharge, the discharge will not be set aside for the purpose of having a trial on the specifications. Ignorance of the fact that a discharge has been granted is no excuse for a delay in making application to set it aside. U. S. Dist. Ct., S. D. New York. In re Buchstein, 17 Nat. Bankr. Reg. 1.

EXECUTION.

When assignee takes property subject to lien of.— In the State of New York, an execution is a lien upon the property of the judgment debtor from the time it is