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The facts are stated in the opinion.

Messrs. Ninde & Sons and C. Holden for appellant.

without unnecessary delay, said: “Their ac-, damages for the alleged wrongful acts of detion is intended to be prompt and summary. fendant Clausmeier as sheriff while relator They are clothed with extraordinary powers was in his custody under indictment for for the protection of the community from forgery. Affirmed. noxious influences affecting life and health, and it is important that their proceedings should be embarrassed and delayed as little as possible by the necessary observance of formalities." The exclusion of appellant's son was not, as insisted, in the nature of a penalty. Neither can the rule or order in question be considered as compelling his vaccination. It, as previously said, was only a prerequisite to his attendance at school during the period of danger.

Owing to the public importance of the questions involved in this case, we have given them much consideration, and perhaps have unnecessarily extended this opinion; but under the facts, when tested by the firmly settled legal principles, we are constrained to uphold the order of the local board of health of the city of Terre Haute, as a valid exercise of power upon its part, and we therefore conclude that appellees were justified in excluding appellant's son from the public schools during the continuance of the emergency or danger from smallpox. It follows, therefore, that the court did not err in overruling the demurrer to each paragraph of the answer, nor in sustaining appellees' demurrer to the second, fourth, and sixth paragraphs of the reply. The judgment is affirmed.

Messrs. Morris, Barrett, & Morris, for appellees:

If Kaough, Mohr, and McCulloch forced the relator from his cell to the jail office for an illegal and wrongful purpose, and there maltreated him, they may be liable for any damages thereby done to him, in an action for trespass for an assault, or assault and battery, but not for a breach of the bond sued on.

Neither Kaough, Mohr, nor McCulloch owed the relator any duty. As the bond is joint, and not several, nor joint and several, it follows that they can only be held liable by a suit against them for such wrong. The wrong thus done could not be regarded as a breach of the bond.

State ex rel. Harrison v. Galbraith, 128 Ind. 501, 28 N. E. 127; Ex parte Reed, 4 Hill, 573; People ex rel. Kellogg v. Schuyler, 5 Barb. 166; State, Allen, Prosecutor, v. Conover, 28 N. J. L. 224, 78 Am. Dec. 54; State use of Butts v. Brown, 33 N. C. (11 Ired. L.) 141; Gerber v. Ackley, 32 Wis. 233.

The photograph of a person is as just to him as his creator. The picture can do no harm or wrong to the original.

It is the sheriff's duty to use such reasonPetition for rehearing denied June 20, able precaution as the case may require to

1900.

prevent an escape,-especially in arrests for felony, or offenses of magnitude.

It was for the sheriff to determine what

STATE of Indiana er rel. John W. BRUNS, precaution was, in his judgment, reasonable.

Appt.,

v.

Edward F. CLAUSMEIER et al.

1. A sheriff may lawfully take the photograph and measurements, weight, name, residence. place of birth, occupation, and personal characteristics of an accused person committed to his custody for safe keeping, if in his discretion it is necessary to prevent his escape, or to facilitate his recapture in case he should do so.

The prisoner, knowing that the public, in case he should escape, would be instantly placed in possession of his photograph, would hardly attempt to escape.

Firestone v. Rice, 71 Mich. 377, 38 N. W. 885; Diers v. Mallon, 46 Neb. 121, 64 N. W. 722.

If the sheriff had no right to take Bruns's photograph, but was simply a joint trespasser with his sureties, no suit will lie on the bond sued on for such wrong.

If the sureties are not liable on the bond, neither is the sheriff liable. Neither is liable on the bond unless there is a breach of it.

2. The official bond of a sheriff is not
liable for his act in sending out a photo-
graph and description of a person committed
to his charge, together with a statement of
the accusation against him, in such a man-nold v. Givan, 45 Ind. 267.
ner as to be libelous.

State ex rel. Martin v. Long, 30 N. C. (8
Ired. L.) 415; State ex rel. Logansport Nat.
Bank v. Kent, 53 Ind. 112; State ex rel. Ar-

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The liability of the sheriff and his sureties on this bond is joint and the same. They are liable upon it as one, not as several. It

is contractual and must be strictly construed. It cannot be enlarged by construc tion.

State ex rel Logansport Nat. Bank v. Kent, 53 Ind. 118; People use of Logan County v. Toomey, 122 Ill. 308, 13 N. E. 521.

The sureties on a sheriff's bond are not liable for false imprisonment not done vir tute officii.

Huffman v. Koppelkom, 8 Neb. 344; Otten

stein v. Alpaugh, 9 Neb. 240, 2 N. W. 219; | Scott v. State ex rel. Roberts, 46 Ind. 203; Schoss v. White, 16 Cal. 65; Bromley v. Hutchins, 8 Vt. 194, 30 Am. Dec. 465; Gerber v. Ackley, 37 Wis. 44, 19 Am. Rep. 751; People use of Macon County v. Foster, 133 Ill. 496, 23 N. E. 615.

Assuming that the sending of Bruns's photograph and the accompanying description of his person to the rogue's gallery would be wrong, the sheriff and those who assisted him in making such a disposition of the picture of Bruns might be liable individually to him for such wrong, but not officially, for the reason that there is no law making such a distribution a part of the sheriff's duty. Therefore, neither he nor his sureties are liable upon the bond sued on.

officers and said police do mankind generally who are not known as criminals, by placing the picture of said relator on cards which are used for mounting the pictures of criminals, and using said pictures for the express and sole purpose of holding said relator forth as a criminal, on said day did maliciously and falsely make and publish of and concerning the relator the following false, scandalous, malicious, and defamatory words, and picture of said relator in connection therewith [the description of the relator, and the charge against him, and by whom he was arrested, as shown on the back of said picture, are set forth in the complaint]; that the pictures of persons, taken and mounted as aforesaid on cards of that style, with the words and combination of words printed and Com. use of Richardson v. Cole, 7 B. Mon. written thereon, as a whole, when exhibited 250, 46 Am. Dec. 506; Gerber v. Ackley, 37 and used as these were, have a definite and Wis. 44, 19 Am. Rep. 751; Carey v. State ex well-known meaning, that said persons are rel. Farley, 34 Ind. 105; State ex rel. Arnold criminals and rogues, and that said pictures v. Givan, 45 Ind. 267; State ex rel. Logans-and words make what are well and popularport Nat. Bank v. Kent, 53 Ind. 116; Ex ly known as the 'Rogues' Gallery'; that said parte Reed, 4 Hill, 572. Člausmeier, before the relator had any opportunity to prove his innocence of the charge for which he was committed, wrongfully, unlawfully, and maliciously caused large numbers of the picture of said relator, and said words and combination of words on the reverse side thereof, to be sent and placed in the police department of the city of Ft. Wayne, and to divers persons to the relator unknown, and has widely published the libel here complained of; that said relator was innocent of said charge, and was afterwards honorably acquitted of the said charge placed against him. Whereby and by means of which acts aforesaid said relator has been greatly prejudiced in his credit and reputation, and brought into public scandal, infamy, and disgrace, and has suffered in his good name, fame, and reputation, and has suffered damage thereby," etc.

Monks, J., delivered the opinion of the

court:

This action was brought by the relator against appellee Clausmeier, on his official bond as sheriff, and the other appellees, sureties on said bond, to recover damages for an alleged breach thereof. A demurrer for want of facts was sustained to the complaint, and, the relator refusing to plead further, judgment was rendered in favor of appellees.

It is alleged in the complaint that while the relator was confined in the jail of Allen county, and in the custody of said Clausmeier, as sheriff, on a charge of forgery, said Clausmeier, on the 13th day of November, 1896, "without the consent and against the wish of said relator, compelled him, by force of commands, and threatening physical compulsion, to come forth out of his cell in said jail, It is the duty of a sheriff to confine in jail into the office of said jail, and then and there, and safely keep all persons in his custody, intentionally, wrongfully, unlawfully, and awaiting trial on a charge of crime, until maliciously, took the picture of said relator, lawfully discharged, and, if they escape, to and on the same day, without the consent pursue and recapture them. A sheriff, in and against the wish and notwithstanding making an arrest for a felony on a warrant, the protest of relator, said Clausmeier weighed has the right to exercise a discretion, not and measured said relator, and by observa- only as to the means taken to apprehend the tion of the body of said relator, and by in-person named in the warrant, but also as quiry of him, and by means of records ob- to the means necessary to keep him safe and tained a personal description of relator;" secure after such apprehension until lawthat on said 15th day of November, 1896, fully discharged; and he has the right to and thereafter, said Clausmeier, "maliciously take such steps and adopt such measures intending to ruin the relator's fair name and as, in his discretion, may appear to be necesreputation, and to bring said relator into sary to the identification and recapture of public infamy, disgrace, and scandal, by hold- persons in his custody if they escape. Uning said relator up to scorn, ridicule, con- less this discretion is abused through malice, tempt, and execration, and to impair his en- wantonness, or a reckless disregard for, and joyment of general society by imputing and a selfish indifference to, the common dictates implying that said relator had committed a of humanity, the officer is not liable. Firecrime and was a rogue and a criminal, by stone v. Rice, 71 Mich. 377, 38 N. W. 885; associating the picture of the relator with Diers v. Mallon, 46 Neb. 121, 64 N. W. 722. the pictures of criminals, and representing It is the duty of the said officer to search the the said relator as a criminal and as a per-person, and take from him all money or other son whom the police should watch, and whom articles that may be used as evidence the officers of the law generally should ob- against him at the trial. Rusher v. State, serve and watch more critically than said' 47 Am. St. Rep. 175, and note on page 180,

94 Ga. 363, 21 S. E. 593. And he may take from him any dangerous weapons, or anything else that said officer may, in his discretion, deem necessary to his own or the public safety, or for the safe keeping of the prisoner, and to prevent his escape; and such property, whether goods or money, he holds subject to the order of the court. Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459; Commercial Exch. Bank v. McLeod, 65 Iowa, 665, 54 Am. Rep. 36, 19 N. W. 329, 22 N. W. 919; Reifsnyder v. Lee, 44 Iowa, 101, 24 Am. Rep. 733; Holker v. Hennessey, 64 Am. St. Rep. 524, 532, and note p. 537, 141 Mo. 527, 540, 39 L. R. A. 165, 42 S. W. 1090; Gillett, Crim. L. 2d ed. § 158. In Closson v. Morrison, 47 N. H. 482, 93 Am. Dec. 459, and Holker v. Hennessey, 64 Am. St. Rep. 524, 532, and note p. 537, 141 Mo. 527, 540, 39 L. R. A. 165, 42 S. W. 1090, it was held that said officer might not only take any deadly weapon he might find on the person, but also money or other articles of value found upon the person, though not connected with the crime for which he was arrested, and could not be used as evidence on the trial thereof, by means of which, if left in his possession, he might procure his escape, or obtain tools, implements, or weapons with which to effect his escape. It would seem, therefore, if, in the discretion of the sheriff, he should deem it necessary to the safe-keeping of a prisoner and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph, and a measurement of his height, and ascertain his weight, name, residence, place of birth, occupation, and the color of his eyes, hair, and beard, as was done in this case, he could lawfully do so. The complaint does not charge that any physical force was used to induce the relator to have his negative taken, or to furnish the sheriff the information above mentioned not obtain

able by observation. It is evident that the substantial cause of action set forth in the complaint is an alleged libel of the relator by the appellee Clausmeier, in the publication of said pictures and the writing on the backs thereof, by sending the same to the police department of Ft. Wayne, and to divers persons to the relator unknown. Conceding, without deciding, that if a sheriff commit an assault and battery upon a person in his custody, or fails to use ordinary care to protect him against acts of violence from others, he and his sureties are liable on his official bond to such person therefor, yet it does not follow that a sheriff and his sureties are liable on his official bond for libelous words published by said sheriff of and concerning a person in his custody. If a sheriff have a person in his custody on a charge of crime, and orally or in writing uses language concerning said person which is slanderous or libeloue per se, while he may be liable to an action therefor, there is no liability on his official bond on account thereof. A person who is a sheriff, in speaking or writing such language under such circumstances, is not guilty of any misfeasance or nonfeasance as such officer. He is neither performing an official duty in a proper or improper manner, nor doing any act whatever as an officer. It is evident that said Clausmeier, in sending said photographs with the writing on the backs thereof, was not acting either virtute officii or colore officii. Under such circumstances there is no liability on an official bond. State ex rel. Arnold v. Givan, 45 Ind. 267; State ex rel. Logansport Nat. Bank v. Kent, 53 Ind. 112. It is unnecessary, therefore, to determine whether or not the photographs and the words thereon were libelous, when considered in connection with the other allegations of the complaint. Judgment affirmed.

PENNSYLVANIA SUPREME COURT.

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bank to recover back the proceeds on the theory that the collecting bank had guaranteed the indorsement, when the drawee had drawn the check on itself, and delivered it to a person who falsely personated the payee named therein, for money to be loaned on a mortgage.

(Dean, J., and Green, Ch. J., dissent.)
(May 21, 1900.)

tention with which the drawer issued the check, although that intention was induced by a mistake of fact as to the impostor's identity, has been quite generally taken by the courts in cases presenting a similar state of facts, notwithstanding that, in order to attribute such an intention to the drawer, it is necessary to eliminate, as a part of it, his belief that the payee is the person who really bears the name used in the check, and who really owns the consideration for which the check is exchanged.

There has been a singular uniformity in the scope and general details of the methods employed in perpetrating frauds of the character of that involved in the principal case; but it is apparent that a very slight variation will suffice to render the theory of actual intent

A

PPEAL by defendant from a judgment of the Court of Common Pleas, No. 2, for Philadelphia County, in favor of plaintiff in an action to recover the amount of a check which plaintiff paid to defendant when it | bore a forged indorsement. Reversed.

The facts are stated in the opinion. Messrs. Richard C. Dale and Alfred Moore for appellant.

Mr. John G. Johnson, for appellee:
In the use of a draft payable at a bank to
the order of a particular person, the bank is
entitled to charge its depositor, the acceptor
of such draft, with the amount thereof only
in case it paid upon a genuine indorsement.

Robarts v. Tucker, 16 Q. B. 560.
Bank of England v. Vagliano Bros. [1891]
A. C. 107, did nothing more than decide that
because of the directions of the English stat-

inapplicable. Thus, it does not apply if the
impostor, instead of assuming the name by
which the payee is described in the check, as-
sumes merely to be the agent of a person of
that name. Nor does it apply where the draw-
er is not completely deceived as to the identity
of the person to whom he delivers the check,
but delivers it to him in the faith that, if he
is not the person he represents himself to be,
the bank will refuse payment of the check to
him, or upon his indorsement.

In the following cases, which, it will be observed, are in their essential features very much like the principal case, the courts determined the rights of the respective parties upon the theory of actual intent.

ute the draft to the order of Petridi was really payable to bearer. Proper credit followed from a payment by the bank of a genuine acceptance by its customer payable to bearer, ordered by him to be paid.

Money paid by a bank upon a forged indorsement of a check to order can be recov

ered by it if it proceeds promptly upon discovery of the fact of the forgery.

McConeghy v. Kirk, 68 Pa. 200; Chambers v. Union Nat. Bank, 78 Pa. 205; Iron City Nat. Bank v. Fort Pitt Nat. Bank, 159 Pa. 46, 23 L. R. A. 615, 28 Atl. 195; Turnbull v. Bowyer, 40 N. Y. 456, 100 Am. Dec. 523; State Bank v. Fearing, 16 Pick. 533, 28 Am. Dec. 265; Howe v. Merrill, 5 Cush. 80; Byles, Bills, 7th ed. p. 224; Ogden v. Benas, L. R. 9 C. P. 513.

resentation that he was the secretary and the payee they delivered him a check purporting on its face to be payable to the order of such secretary. It appeared that the amount stated in the warrant had been raised, and the plaintiffs were finally compelled to repay the amount by which it was raised; and it also appeared that the person to whom the check was delivered was not the secretary, and that he indorsed the check in the latter's name without authority. The plaintiffs sued the bank for having paid the check on such indorsement. The case was decided against plaintiffs on the authority of the earlier case of Smith v. Mechanics' & T. Bank, 6 La. Ann. 610, infra. The plaintiffs attempted to distinguish it from that case on the ground that in the present case it appeared it was the plaintiffs' custom to make checks payable to the payees of the warrants purchased; but the court said that the plaintiff's could not successfully complain that the bank had failed to protect them against their own mistake.

The

In United States v. National Exch. Bank, 45 Fed. Rep. 163, an impostor had procured possession of postoffice orders payable to another person. By fraudulent representations he induced a person to believe that he was the man to whom the orders were made payable, and that person identified him as such to the officials of the postoffice. The latter gave the imIn E. S. Karoly Electrical Constr. Co. v. postor a check in which the payee was de- Globe Sav. Bank, 64 Ill. App. 225, rehearing scribed by the name borne by the payee of the denied in 64 Ill. App. 230, an officer of a cor orders. The same person identified the impos-poration introduced to a banker a stranger who tor at the bank, and the bank cashed the check had assumed the name of a real person who for him. The United States brought an action had no connection with the transaction. against the bank to recover the amount of the bank discounted a note made by the corporacheck, which had been charged up to it. The tion, and at the request of the officer drew a court held that the plaintiff could not recover. check payable to the order of the stranger unThe opinion says: "The question for the bank der the assumed name. The check, purporting is, 'For whom was this money intended by the to bear the indorsement of the payee, was dedrawer and the name is but one means of posited by, and credited to, the account of the determining that question. Without corporation in another bank. The latter bank doubt the postmaster would have paid currency collected it from the drawee bank, but subseinstead of a check, if he had had it in hand, quently, upon the claim that the indorsement rather than in bank. If he would not, it would was forged, reimbursed the drawee and sued its own be very good evidence of neglect to deliver a check to a party, and put it in his power to draw the money on a forged indorsement in

depositor (the corporation). The amount of the check had been refunded to the

drawer by the drawee bank, but it does not appear whether the note had been returned to its maker by the drawer of the check. The

circumstances where the postmaster would not have been satisfied to part with the cash. Allowing the drawer and drawee to be equally in- opinion takes the position that it does not nocent, the loss should fall upon that one who, by his act, has been the occasion of the loss which in this case, I think, was the department. Though there may have been no express negligence on the part of the officials of the postoffice, it was a mistake to deliver the check to a person not entitled to it, and that mistake has been the occasion of the loss."

In Levy v. Bank of America, 24 La. Ann. 220, 13 Am. Rep. 124, the plaintiffs, brokers, purchased from a stranger a state warrant drawn to the order of, and indorsed by, the secretary of the state senate. Upon the stranger's rep

appear but that the person to whom the check was delivered indorsed it, and if he did there was no forgery, since it was intended that he should indorse it, and it made no difference whether the check was made payable to and indorsed by him in his real name or in an assumed name. Eliminating the non-essential features, the original rights of the drawer and drawee furnish the criterion for the determination of the rights of the parties.

It will be observed in this case, however, that the use of an assumed name did not harm the drawer of the check, since the consideration for the check was the note of the corpo

The check upon the appellee was not indorsed by the party in whose favor it was drawn.

The action of the appellant was not induced by anything known to it, done by the appellee.

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

The fraudulent transaction which gave rise to this litigation may be briefly stated: Dr. Herman S. Bissey was the owner of premises No. 2352 North Broad street, Philadelphia, which he wished to sell. A man who gave his name as Ashley called on Dr. Bissey, and, under the pretense of desiring to purchase the property, got possession of the title papers, and took them to a responsible conveyancer, to whom he applied for a loan of $5,000, to be secured by a mortgage ration, which was delivered to it by an officer, who, for aught that appears, had full authority to do so.

In Emporia Nat. Bank v. Shotwell, 35 Kan. 360, 57 Am. Rep. 171, 11 Pac. 141, an impostor, by assuming the name of the owner of property, procured a loan. The proceeds were sent by mail in the form of a draft, in which the payee was described by the name of the owner of the property. The lender (the purchaser of the draft) took an assignment of the draft, and the right to receive payment thereof, from the owner of the property, and from the bank from which he had purchased the draft, and brought an action against the bank on which the draft was drawn, and which paid it on the indorsement of the impostor. The court beld that the lender, rather than the drawee bank, must bear the loss, because he intended the draft to be sent to the party who executed the notes and mortgages, and intended it to be paid to the person to whom he sent it, and whom he designated by the name of the owner of the property, because that was the name which he assumed in executing the notes and mortgages, and, therefore, the bank was protected in paying the draft to the very person whom the lender intended to designate by that name. It was claimed that the bank did not use sufficient care and diligence in having the payee of the draft identified, but the court beld that that was not important in view of the Intention of the lender.

of the property. The conveyancer, believ ing the man to be Dr. Bissey and the owner of the premises, negotiated the loan. The mortgagee, desiring title insurance by the Land Title & Trust Company, deposited with it the amount of the loan, to be paid to the mortgagor when a valid mortgage should be executed. When the matter was ready for settlement, Ashley went with his conveyancer to the office of the company, and was there introduced to the settlement clerk as Dr. Bissey. He signed the mortgage, "Herman S. Bissey," acknowledged it before a notary connected with the company, and received from the clerk the company's check, drawn on itself to the order of Herman S. Bissey. This check, indorsed, "Herman S. Bissey," was deposited in the Northwestern National Bank by a person who had opened an account with it as G. B. Rogers, and was dorsed and sent to the very person who received and negotiated it; and the loss occasioned by the fraud of the impostor must logically and justly be cast upon the plaintiff, but for whose negligence it would not have been likely to happen.

In Meridian Nat. Bank v. First Nat. Bank, 7 Ind. App. 322, 33 N. E. 247, 34 N. E. 608, a check in payment of cattle was delivered to a person who had stolen them. He had given a fictitious name, and the payee was described by that name. The action was by a bona fide purchaser of the check upon an indorsement made by the impostor against the drawee. The case was decided for the plaintiff upon the theory that the indorsement of the check by the person to whom it was actually delivered, and by whom the drawer intended that the money should be received, was an effectual indorsement. The court said: "It is the identity of the person, and not of the name, which controls." In this case, however, as remarked in the opinion, even the drawer did not have in his mind, as the payee, any other or different person whom he erroneously believed the person to whom he delivered the check to be.

In Robertson v. Coleman, 141 Mass. 231, 55 Am. Rep. 471, 4 N. E. 619, a stranger, falsely assuming the name of a real person, took stolen goods to the defendant, who sold them for him and gave him a check in which the payee was described by the assumed name, the defendant believing that to be his name. The impostor In Crippen v. American Nat. Bank, 51 Mo. indorsed the check in that name, and it came App. 508, an impostor, assuming the name of to the hands of plaintiff, a bona fide holdthe owner of certain property, procured a loan er, who sued the drawer after the latter had upon it. The proceeds of the loan were re-stopped payment. The court, in deciding for citted by a draft payable to the order of the lender's agent. The agent indorsed the same to the person who had procured the loan, and the latter indorsed it, in the assumed name, to a bank, which collected it from the drawee. The action was by the lender against the bank on which the draft was drawn. The court held that the loss must fall on the plaintiff, rather than on defendant. The court took the position that "the indorsement was the genuine indorsement of the person to whom the lean had been made and for whom the draft was intended," holding that the case was distinguishable from one where a draft by accident falls into the hands of a person not entitled thereto, for which the injured party is not responsible. The court said that in such a case the injured party, being in no fault, might be entitled to relief against the purchaser of the stolen draft, but that in the case at bar the draft was not stolen, but was in

plaintiff, said: "The name of a person is the verbal designation by which he is known, but the visible presence of a person affords surer means of identifying him than his name:" again: "It is clear from these facts that, although the defendants may have been mistaken in the sort of man the person they dealt with was, this person was the person intended by them as the payee of the check, designated by the name he was called in the transaction, and that his indorsement of it was the indorsement of the payee of the check by that name. The contract of the defendants was to pay the amount of the check to this person or his order, and he has ordered it paid to the plaintiff. If this person obtained the check from the defendants by fraudulent representations the plaintiff took it in good faith and for value."

In American Exch. Bank v. City Bank, 5 N. Y. Legal Obs. 18 (an action by the indorsee of the check against the drawee bank),

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