the power was reserved, he could not alter, amend, or annul a charter without the consent of the corporate body to which it belonged. To the extent of such assent amendments were effectual, and no further. Dartmouth College v. Woodward, supra, 675; Rex v. Passmore, 3 T. R. 290, and the cases cited.

In the worst times of English history no attempt was made by the Crown to do either of the things in invitum.

Near the close of the reign of Charles the I, the charters of many cities were wrested from them. The case of the city of London was the most memorable. It was done under the forms of law by means of a corrupt judiciary. After the close of the Revolution of 1688, and the accession of William and Mary to the throne, the charter of the metropolis was restored and immunity was given to it against such assaults in future by an act of Parliament. 3 Bl. Com. 264; 2 Camp. Lives of Chief Justices, 41.

It is the theory of the British constitution that Parliament is omnipotent. It can pass bills of attainder and acts of confiscation. Gibbon's Autobiography, 14. It can also create and destroy corporations. But these things involve the exercise, not of its ordinary, but of an extraordinary power, not unlike that of the Roman Emperors, sometimes applied in moulding and administering the civil law in special cases.

In The King v. Passmore, supra, 246, Buller, Justice, said he "considered the grant of incorporation to be a compact between the Crown and a certain number of the subjects, the latter of whom undertake, in consideration of the privileges which are bestowed, to exert themselves to " carry out the objects of the grant.

The question whether there is in such cases a contract within the meaning of the contract clause of the Constitution of the United States came for the first time before this court in the Dartmouth College case. A college charter was granted by the king before the American Revolution. The State of New Hampshire by several acts of her legislature, of the 27th of June and of the 18th and 26th of December, 1816, attempted materially to change the original charter and modify the government of the institution which had grown up under it. The college resisted. The case was brought here for final decision. It was argued at the bar with consummate ability. The judgments of the justices of this court who delivered opinions were characterized by a wealth of learning and force of reasoning rarely equaled. Perhaps the genius of Marshall never shone forth in greater power and lustre. It was said, among other things, that the ingredients of a contract are parties, consent, consideration, and obligation. The case presented all these. The parties were the king and the donees of the powers and privileges conferred. Consent was shown by what they did. The consideration was the investment of moneys for the purposes of the foundation, the public benefits expected to accrue, and an implied undertaking of the corporation faithfully to fulfill the duties with which it was charged. The obligation was to do the latter under the penalty of forfeiture in case of " nonuser, misuser, or abuser." On the part of the king there was an implied obligation that the life of the compact should be subject to no other contingency. The question decided in that case has since been considered as finally settled in the jurisprudence of the entire country. Murmurs of doubt and dissatisfaction are occasionally heard, but there has been no re-argument here and none has been asked for. The same doctrine

has been often reaffirmed in later cases. The last one is The Morris & Essex R. R. Co. v. Yard, Comm'r, decided at this term. In none of them has there been a dissent upon this point.

In cases involving Federal questions affecting a State the State cannot be regarded as standing alone. It belongs to a union consisting of itself and all its sister States. The Constitution of that union and "the laws made in pursuance thereof are the supreme law of the land, * any thing in the Constitution or laws of any State to the contrary notwithstanding," and that law is as much a part of the law of every State as its own local laws and Constitution. Farmers and Mechanics' Bank v. Deering, 1 Otto, 29.

* *

Yet every State has a sphere of action where the authority of the national government may not intrude. Within that domain the State is as if the union were not. Such are the checks and balances in our complicated but wise system of State and national polity.

This case turns upon the construction to be given to the tenth section of the charter of the bank. Our attention has been called to nothing else.

The exercise of the taxing power is vital to the functions of government. Except where specially restrained, the States possess it to the fullest extent. Prima facie it extends to all property, corporeal and incorporeal, and to every business by which livelihood or profit is sought to be made within their jurisdiction. When exemption is claimed it must be shown indubitably to exist. At the outset every presumption is against it. A well-founded doubt is fatal to the claim. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported. West Wisconsin R. R. Co. v. Supervisors, 93 U. S. 598; Tucker v. Ferguson, 22 Wall. 527.

Can the exemption here in question, examined by the light of these rules, be held valid?

Upon looking into the section several things clearly appear: (1) The tax specified is upon each share of the capital stock and not upon the capital stock itself. (2) It is upon each share subscribed. Nothing is said about what is paid in upon it. That is immaterial. The fact of subscription is the test, and that alone is sufficient. (3) This tax is declared to be "in lieu of all other taxes." Such was the contract of the parties. The capital stock and the shares of the capital stock are distinct things. The capital stock is the money paid or authorized or required to be paid in as the basis of the business of the bank, and the means of conducting its operations. It represents whatever it may be invested in. If a large surplus be accumulated and laid by, that does not become a part of it. The amount authorized cannot be increased without proper legal authority. If there be losses which impair it, there can be no formal reduction without the like sanction. No power to increase or diminish it belongs inherently to the corporation. It is a trust fund held by the corporation as a trustee. It is subject to taxation like other property. If the bank fail, equity may lay hold of it, administer it, pay the debts, and give the residuum, if there be any, to the stockholders. If the corporation be dissolved by judgment of law, equity may interpose and perform the same functions. Wood v. Dummer, 3 Mason, 308; Curran v. Arkansas, 15 How. 304; Gordon v. Appeal Tax-Court, 3 id. 133; People v. Commrs., 4 Wall. 258; Van Allen v. The Assessors, 3 id. 584; Queen v. Arnaud, 9 Ad. & El. (N. S.) 806; Bank Tax Cases, 2 Wall. 209.

The shares of the capital stock are usually represented by certificates. Every holder is a cestui que trust to the extent of his ownership. The shares are held and may be bought and sold and taxed like other property. Each share represents an aliquot part of the capital stock. But the holder cannot touch a dollar of the principal. He is entitled only to share in the dividends and profits. Upon the dissolution of the institution each shareholder is entitled to a proportionate share of the residuum after satisfying all liabilities. The liens of all creditors are prior to his. The corporation, though holding and owning the capital stock, cannot vote upon it. It is the right and duty of the shareholders to vote. They in this way give continuity to the life of the corporation, and may thus control and direct its management and operations. The capital stock and the shares may both be taxed, and it is not double taxation. The bank may be required to pay the tax out of its corporate funds, or be authorized to deduct the amount paid for each stockholder out of his dividends. Angel and Ames on Corp., §§ 556, 557; Union Bank v. The State, 9 Yerg. 49; 3 Wall., supra; Bradley v. The People, 4 id. 462; 9 Adolph & Ellis, supra; Nat. Bank v. Com., 9 Wall. 353; State v. Branin, 3 Zabr. 484; McCulloch v. Maryland, 4 Wheat. 436.

There are other objects in this connection liable to taxation. It may be well to advert to some of them.

1. The franchise to be a corporation and exercise its powers in the prosecution of its business. Burroughs on Taxation, § 85; Hamilton v. Massachusetts, 6 Wall. 638; Wilmington R. R. v. Read, 13 id. 264.

2. Accumulated earnings. State v. Utter, 34 N. J. Law, 493; St. Louis Mutual Ins. Co. v. Charles, 47 Mo. 462.

3. Profits and dividends. Attorney-General v. Bank, etc., 4 Jones' Eq. (N. C.) 289.

4. Real estate belonging to the corporation and necessary for its business. Wilmington R. R. v. Read, 13 Wall. 264; The Bank of Cape Fear v. Edwards, 5 Ired. 516.

5. Banks and bankers are taxed by the United States: 1. On their deposits. 2. On the capital employed in their business. 3. On their circulation. 4. On the notes of every person or State bank used and paid out for circulation. Revised Laws U. S. 673.

The States are permitted in addition to tax the shares of the national banks. Id. 1015.

This enumeration shows the searching and comprehensive taxation to which such institutions are subjected where there is no protection by previous compact.

Unrestrained power to tax is power to destroy. McCulloch v. Maryland, 4 Wheat. 316.

When this charter was granted the State might have been silent as to taxation. In that case the power would have been unfettered. Providence Bank v. Billings, 4 Pet. 514. It might have reserved the power as to some things and yielded it as to others. It had the power to make its own terms or to refuse the charter. It chose to stipulate for a specified tax on the shares, and declared and bound itself that this tax should be in lieu of all other taxes."

There is no question before us as to the tax imposed on the shares by the charter. But the State has by her revenue law imposed another and an additional tax on these same shares. This is one of those "other taxes " which it had stipulated to forego. The identity of the thing doubly taxed is not affected by the

fact that in one case the tax is to be paid vicariously by the bank, and in the other by the owner of the share himself. The thing thus taxed is still the same, and the second tax is expressly forbidden by the contract of the parties. After the most careful consideration we can come to no other conclusion. Such, we think, must have been the understanding and intent of the parties when the charter was granted and the bank was organized. Any other view would ignore the covenant that the tax specified should be "in lieu of all other taxes." It would blot those terms from the context and construe it as if they were not a part of it.

There is no reservation or discrimination as to any "other tax." All are alike included. Such is the natural effect of the language used. The most subtle casuistry to the contrary is unavailing. Under such a contract between individuals a doubt could not have existed. It may as well be said the power is reserved to tax any thing else as further to tax the shares. We cannot so hold without interpolating into the clause a term which it does not contain. This we may not do. Our duty is to enforce the contract as we find it and not to make a new one. If it was intended to make the exception claimed from the universality of the exemption as expressed, it would have been easy to say so, and it is fairly to be presumed this would have been done. In the absence of this expression we can find no evidence of such an intent. Our view is fully sustained by the leading authorities upon the subject. We will refer to a few of them.

In the Binghamton Bridge Case, it was declared by the act of the legislature authorizing the bridge to be built, that it should not be lawful to build any other bridge within two miles above or below the oue so authorized. This court held the inhibition to be a covenant, and upheld and enforced the restriction against the authority conferred by a later act of the legislature authorizing a bridge to be so built. 3 Wall. 78.

In The Wilmington Railroad v. Read, 13 Wall. 264, the charter declared that the property of said company and the shares therein shall be exempt from any public charge or tax whatsoever." The legislature passed laws taxing the entire franchise and rollingstock and certain lots of land necessary to the business of the company. This court held the exemption to be a contract, and adjudged the laws to be vold.

The Union Bank v. The State, 9 Yerg. 490, is a case marked by eminent judicial ability and careful thought. There it was stipulated “that in consideration of the privileges granted by this charter, the bank agrees to pay to the State annually the one-half of one per cent on the amount of the capital stock paid in by stockholders other than the State."

It was held that a further tax on the capital stock was void, but that the State might tax the shares in the hands of individuals.

In the case before us the charter tax is upon the shares. The tax complained of is a further tax on those shares. Without the phrase "in lieu of all other taxes" the parallelism is complete. A further tax could no more be imposed upon the shares in one case than upon the capital stock in the other. The same negative considerations apply to both.

In The Bank of Cape Fear v. Edwards, 5 Ired. 516, the charter provided "that a tax of twenty-five cents on each share of stock owned by individuals in said bank shall be annually paid into the treasury of the

State by the president or cashier of the said bank on or before the first day of October in each year, and the said bank shall not be liable to any further tax.” It was held that the bank was liable to no other tax, State or county, and that the banking-house and the lot upon which it stood was within the exemption.

Gordon v. The Appeal Tax-Court seems to us conclusive of the case in hand. The legislature of Maryland | continued the charters of certain banks on condition that they would make a road and pay a school tax; and it was provided that upon any of the banks complying, the faith of the State was pledged not to impose any further tax or burden upon them during the continuance of their charters under the act.

It was held by this court that this was a contract, and that it exempted the stockholders from a tax levied upon them as individuals, according to the amount of their stock.

Comment here is unnecessary. The points of analogy are too obvious and cogent to require remark. See, also, The State Bank v. Knoop, 16 How. 369; Dodge v. Woolsey, 18 id. 331, and The Home of the Friendless v. Rouse, 8 Wall. 430.

The decree of the Supreme Court of Tennessee is reversed, and the case will be remanded with directions to enter a decree in favor of the plaintiff in error.

UNITED STATES SUPREME COURT ABSTRACT.

AGENCY.

1. Principal cannot retain property acquired through fraud of agent: acts of government officer.-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 and injured party. Judgment of Court of Claims affirmed. United States, appellant, v. State National Bank of Boston. Opinion by Swayne, J. 2. Means borrowed to cover defalcation.-A firm had borrowed money, belonging to the government, from the cashier of its sub-treasury. In order to enable the cashier to cover up his violation of duty, and in pursuance of an agreement, one of the firm procured a bank officer to purchase gold certificates, which were to be deposited in the sub-treasury, to remain to the subsequent day. The bank officer did so, and a receipt for the certificates was given by the cashier to C, who indorsed it to the bank officer. The receipt entitled its owner to receive gold certificates for those deposited, or their equivalent, on demand. The bank officer had no knowledge of the plan of the firm and the cashier, and the transaction he entered into was a usual one. Held, that the government obtained no title to the certificates, but was liable to return their value to the bank. Ib.

CARRIER OF PASSENGERS.

Who is not a gratuitous passenger: stipulation on ticket against carriers' negligence invalid.- Plaintiff below was negotiating, at Portland, Me., with defendant below, a railway company, for the introduction on its road of a patent car coupling, and was requested by defendant to go to Montreal and see one of its officers there, defendant agreeing to pay his expenses. He was given a pass directing conductors to pass him from Portland to Montreal. The pass contained this condition: "The person accepting this free ticket in consideration thereof assumes all risk of all accidents, and

expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents or otherwise, for any injury to the person or for any loss or injury to the property of the passenger using the ticket. If presented by any other person than the individual named therein, the conductor will take up this ticket and collect fare." While traveling from Portland to Montreal, on this pass, on one of defendant's trains, plaintiff was injured by defendant's negligence. Held, (1) that plaintiff was carried for hire, in pursuance of an agreement, and not as a gratuitous passenger; (2) that it was not competent for defendant to stipulate against liability for its own negligence in such a case, and it was liable for the injury. Railroad Co. v. Lockwood, 17 Wall. 357. Judgment of Circuit Court, Maine, affirmed. Grand Trunk R'y Co., plaintiff in error, v. Stevens. Opinion by Bradley, J.

CONSTITUTIONAL LAW,

1. Provision forbidding special legislation.— The Constitution of the State of Alabama declares that "Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes." An act of the legislature authorized the Wills Valley Railroad Company (a pre-existing corporation) to purchase the railroad and franchises of the Northeast and Southwestern Alabama Railroad Company (another pre-existing corporation); and, after doing so, to change its own name to that of the Alabama and Chattanooga Railroad Company. Held, that there was nothing in this legislation repugnant to the constitutional provision referred to. That provision could not be construed to prohibit the legislature from changing the name of a corporation, or from giving it power to purchase additional property; and this was all that it did in this case. No new corporate powers or franchises were created. Decree of Circuit Court, S. D. Alabama, affirmed. Wallase, appellant, v. Loomis. Opinion by Bradley, J.

2. Priority among mortgages: acts affecting. A railroad company issued mortgage bonds upon its road, payable in lawful money. These bonds were guaranteed by the State, and thereafter the company indorsed upon them a promise to pay them in gold. Held, not to affect the priority of the security over a second mortgage on the same property. Ib.

NATIONAL BANK.

Indebtedness to, for more than one-tenth of capital recoverable.- Defendant became indebted to plaintiff, a national bank, to an amount exceeding one-tenth of the capital stock of such bauk. Held, that the provision of the national banking law (§ 27) forbidding the liabilities of any one person, firm or corporation to a national bank to exceed one-tenth of the capital stock paid in of such bank, did not operate to avoid the contract of indebtedness incurred by defendant, and plaintiff was entitled to recover the amount due. Harris v. Runnels, 12 How. 791; O'Hare v. Second Nat. Bank of Titusville, 77 Penn. St. 96; Pangburn v. Westlake, 36 Iowa, 546; Vining v. Bucker, 14 Ohio St. 331. Judgment of Supreme Court of Colorado affirmed. Union Gold Mining Co., plaintiff in error, v. Rocky Mountain Nat. Bank. Opinion by Hunt, J.

OFFICER.

Deputy clerk of Federal court, not employee of gov ernment.-A deputy clerk of the Supreme Court, of

the District of Columbia, who was appointed by the clerk, worked for him, was paid by him, and performed services which it was the duty of the clerk to perform, and for which the clerk received compensation by fees by litigants therefor; held, not an employee of the government, and not entitled to the additional compensation provided for employees of the government, by joint resolution of Congress of February 28, 1867. 14 U. S. Stat. 569. Judgment of Court of Claims reversed. United States, appellant, v. Meigs. Opinion by Miller, J.

PRACTICE.

1. On whom process against corporation should be served. Every corporation has officers who speak and act for it by authority of law, and either by express provision of statute or by the nature of their functions, some one of these officers is the proper person on whom all process of notice must be served, which is necessary to bind the corporation in a judicial proceeding. Judgment of Supreme Court of Appeals, of Virginia, affirmed. City Council of Alexandria, plaintiff in error, v. Fairfax. Opinion by Miller, J.

2. Action to confiscate debt: proceeding in rem. — Where the purpose of the action is to confiscate a debt due by the corporation to an individual, and the proceeding is, by reason of the absence of the creditor, beyond the jurisdiction of the court, necessarily a proceeding in rem against the debt due him, the service of the process or notice on the debtor corporation, which is necessary to make a valid seizure of the debt, should be made upon some one of the officers of the corporation on whom a similar service would bind it in an ordinary civil suit against the corporation. Ib. 3. Service on municipal corporation.- By the Code of Virginia such service, in cases of towns and cities, may be made on the mayor, or, in his absence, on the president of the council, or if both be absent, on a councilman or alderman. Service on the auditor of Alexandria not followed by an appearance for that city in the progress of the case, nor by any appearance of the credit or, Fairfax, did not give the court jurisdiction of the indebtedness of the city or Fairfax, and its judgment condemning that debt is void. Ib.

4. Injunction restraining action in State court.Except under the bankrupt act, no court of the United States can grant an injunction to prevent a proceeding at law in a State court. Act of March 2, 1793, § 5 1 Stat. 334; Revised Stat. U. S., 136, § 720; Diggs v. Walcott, 4 Cr. 179; Peck v. Jennes, 7 How. 625; Watson v. Jones, 13 Wall. 719. Decree of Circuit Court, E. D. Tennessee, affirmed. Deal, appellant, v. Reynolds. Opinion by Swayne, J.

the amendatory act subsequently adopted. Decree of Circuit Court of Massachusetts affirmed. United States, appellant, v. Brig Grace Lothrop. Opinion by Clifford, J.

2. When agreements must be signed before shipping commissioners.-Under the various statutes, the cases in which shipping commissioners must act, or in which the agreement of the seaman is required to be signed in the presence of such a commissioner, are as follows: (1) Where the ship is bound from a port in the United States to a foreign port, not including the ports of the British provinces, or the ports of the West India islands, or the Republic of Mexico, or lakegoing vessels touching at foreign ports. (2) Ships of seventy-five tons burden or upward bound from a port on the Atlantic to a port on the Pacific or vice versa. Ib.

COURT OF APPEALS ABSTRACT.
AGENCY.

1. Agent not disclosing principal: what is not a disclosure.-Defendant, a broker, bought a quantity of grain from plaintiff, saying that it was for the B distillery, and was to be delivered there. Held, not a sufficient disclosure of his principal to relieve the broker from personal liability for the grain. Judgment below affirmed. Cobb v. Knapp. Opinion by Church, C. J. [Decided December 4, 1877.]

2. Subsequent disclosure and action against principal, will not relieve agent.-The subsequent disclosure of his principals by an agent, and the commencement of an action against them, is not conclusive of an election to hold only them responsible. Ib. [Decided December 4, 1877.]

APPEAL.

1. Appeal to the Court of Appeals: what order of General Term allowing in case not involving $500, must state.— An order of the General Term giving to an unsuccessful party, in a litigation involving less than $500, leave to appeal to the Court of Appeals, without assigning any cause for so doing, is not in compliance with the act of 1874, chap. 22. That act requires that the General Term should state that the case involves some question at law, which ought to be reviewed by the Court of Appeals. Appeal dismissed. Bastable v. City of Syracuse. Opinion per Curiam.

2. Referring to opinion of court below in reports, not substitute for printing.-Referring to the opinion in the court below, as reported in the Supreme Court reports, is not a substitute for a compliance with the rule of the Court of Appeals, requiring the opinion of the court below to be printed. Ib. [Decided January 15, 1878.]

ASSIGNMENT FOR BENEFIT OF CREDITORS. 1. Title vests in assignee on acceptance of trust: filing of bond, etc., not necessary to vest title.-The statute (Laws 1860, chap. 348) regulating voluntary assignments for the benefit of creditors does not make the giving of the statutory security by the assignees a condition precedent to the vesting of the estate in them as trustees, nor does the failure to give the security within the time limited invalidate the transfer and restore the title of the assigned property to the assignors. Thrasher v. Bentley, 1 Abb. N. Cas. 649; Syracuse R. R. Co. v. Collins, id. 47; Julliard v. Rathbone, 39 N. Y. 375. Order below affirmed. Brennan v. Wilson. Opinion by Allen, J.

2. Assignees who formally accept may not afterward renunciate.-Where assignees for the benefit of creditors have formally accepted the trust they cannot afterward, by renunciation or disclaimer, throw off or repudiate the duties or responsibilities of the office, or divest themselves of the title vested in them. They can be relieved of their trust only by a court of competent jurisdiction. Hill on Trustees, 221; Shepard v. McEvers, 4 Johns. Ch. 136; Cruger v. Holliday, 11 Paige, 314. Ib.

3. All assignees must unite in conveyance of real estate.-Where there are several assignees all must unite in the disposal of the trust property, and a deed by a part will not convey title. Accordingly where several assignees were named in the assignment and all accepted the trust, and afterward one renounced and refused to act with the others, and the statutory bond given for the performance of the duties of the assignees did not include his name, held, that while title to the trust property could not be conveyed without his uniting in the deed, he was unable, under the statute, to unite in the deed, and a deed executed by him and the other assignees was only a deed of the others and did not operate to convey title. Ib. [Decided December 21, 1877.]

EVIDENCE.

Hearsay as to marriage: what will not establish marriage. To prove pedigrees and marriage, hearsay and traditional evidence is received from necessity. It is not conclusive, but makes a strong prima facie case, sufficient for the administration and devolution of property that there was either a formal marriage, which cannot otherwise be proved, or that the parties agreed per verba de presenti to a marriage, which was followed by cohabitation. C, an old man, had, during his early years, lived with E, a woman who was not of previous chaste character. There was hearsay testimony that she was called his wife by the neighbors, and that he had admitted on several occasions that she was his wife. A child was born to them, and subsequently they separated, she taking the child. There was evidence that thereafter she joined with him in a deed conveying land as his wife. After she had left he formally married another woman, and they lived together until his death. E outlived C, but during his life she took no steps to vindicate her claim as wife, though poor and dependent upon relatives for support; and she and her son made no claim for a share in his estate. Held to show that E was not the wife of C, but that the other woman was. Judgment below reversed. Chamberlain v. McKibben. Opinion by Earl, J. [Decided December 11, 1877.]

MUNICIPAL CORPORATIONS.

When common council not agent of city, and city not liable for neglect of duty. The legislature, in 1866, passed an act wherein commissioners named were empowered to dock the Gowanus canal, in the city of Brooklyn, and to assess the lands adjacent to the canal for the expense. The work was unskillfully done, and the docks constructed sunk and became unfit for use. By Laws 1871, chapter 839, it is provided that the common council of Brooklyn shall cause to be repaired and be rebuilt, at the expense of the city, the ruined docks constructed by the commissioners. It was not shown that the canal was a public highway, and the work to be done was mainly for the benefit of private owners. In an action against the city for damages resulting to the owner of land upon which a

ruined dock existed from a neglect and refusal of the common council to perform the work of rebuilding, held, that the common council in reference to the work was the agent of the State, and not that of the city, and the city was not liable for its failure to perform the work. Judgment below affirmed. N. Y.

& Brooklyn S. M. & Lumber Co. v. City of Brooklyn. Opinion by Church, C. J. [Decided January 15, 1878.]

NEGOTIABLE INSTRUMENT.

1. Instrument given on agreement in contravention of section 45 of Bankrupt Law, valid in hands of innocent holder.-A check given upon an agreement in contravention of section 45 of the Bankrupt Law, to an assignee in bankruptcy, for compensation for his services beyond the fees allowed by law, while void in the hands of the payee, is valid in the hands of a bona fide holder for value without notice. Judgment reversed and new trial granted. Cowing v. Altman. Opinion by Andrews, J.

2. What sufficient to put on inquiry: check transferred fourteen months after date.-A check was dated March 8, 1871, and placed by the maker in the hands of another person to remain until the happening of a specified event. On the happening of that event, on May 2. 1872, it was given by the third party to C, upon the order of the payee. On the same day, it was delivered by C to a bank, in payment of a note held by it against a firm of which C was a member, and the note surrendered. In an action against the maker of the check by the assignee of the bank, the defense was that the instrument was given in contravention of the bankrupt law, and was void. Held, (1) that the bank was a holder for value; (2) that while the date of the check was such as to put a purchaser on inquiry whether it had been discredited, the fact that it was not delivered to the payee until the 2d of May, 1872, would remove that objection, and the check was not overdue or dishonored, and the bank was bound to make no further inquiry, and the maker was liable to plaintiff upon the check, and could not avail himself of the defense interposed. Boehm v. Sterling, 7 Term R. 423, followed. Ib.

[Decided December 18, 1877.]

PRACTICE.

In selling estates of lunatics: reference an essential requirement. The provision in section 12, 2 R. S. 54, in relation to the estates of lunatics, requiring that upon the presentation of a petition for an order to sell the estate of a lunatic it shall be referred, etc., is a substantial requirement and cannot be dispensed with, and an omission of it would constitute a fatal defect in the proceeding, rendering invalid the title of land conveyed thereunder. Pattel v. Torrey, 65 N. Y. 294. Order below reversed. In the Matter of Valentine. Opinion by Church, C. J. [Decided January 22, 1878.]

RECENT AMERICAN DECISIONS.

SUPREME COURT COMMISSION OF OHIO.*

BANK CHECK.

1. Possession of, by rightful owner without indorsement of payee, does not authorize payment.-The rightful pos

To appear in 30 Ohio St. Reports.