could be "carried immediately into execution;" that no order of sale could issue until the court had "given its authority in that behalf;" and that "further judicial action must be had by the court before its ministerial officers" "could proceed to carry the decree into execution." In this consists the difference between the two cases: in Shedd's Case there was actually a decree of sale; in Parson's Case there was not. So, here, there has been no actual decree of sale, and the motion to dismiss is granted.

(October 31, 1887.)


A railroad company is not liable in damages for a loss resulting to a passenger from its refusal to stop the train upon which he was riding, short of a usual station, to enable him to recover a hand-bag which he was carrying with him, and which he dropped from a window of the car while attempting to lower the sash. 2. PLEADING-AMENDMENT.

The circuit court sitting in Louisiana sustained an exception to the petition, on the ground that it set forth no cause of action, and ordered it dismissed, unless the plaintiff' should amend, so as to state a cause of action, within five days. The original petition alleged that the hand-bag and contents, for the loss of which the defendant railroad was sued, were held and kept by the plaintiff in his immediate possession, and the amended petition, when duly filed, alleged that the defendant received them as his luggage. Held, that the amendment "altered the substance of the demand," within the meaning of Code Prac. La. art. 419, and it was within the power of the court, in sustaining an exception thereto and dismissing the action, to modify the order allowing the plaintiff to file an amended petition so as to provide that that petition should have effect only as an addition to the original petition.

In Error to the Circuit Court of the United States for the Eastern District of Louisiana.

O. B. Sansum, for plaintiff in error. T. L. Bayne and Geo. Denegre, for defendant in error.

GRAY, J This was an action against a railroad corporation by a passenger to recover for the loss of a hand-bag and its contents. The plaintiff, a married woman suing by authority of her husband, alleged in the original petition that on October 25, 1883, the defendant, being a common carrier of goods and persons for hire, received her into one of its cars as a passenger from her summer residence at Pass Christian, in the state of Mississippi, to her winter residence, in New Orleans, having in her hand, and in her immediate custody, possession, and control, a leathern bag of a kind usually carried by women of her condition and station in society, containing $5,800 in bankbills, and jewelry worth $4,075; that while the plaintiff, holding the bag in her hand, was attempting to close an open window next her seat, through which a cold wind was blowing upon her, the bag and its contents, by some cause unknown to her, accidentally fell from her hand through the open window upon the railroad; that she immediately told the conductor of the train that the bag contained property of hers of great value, and requested him to stop the train, and to allow her to leave the car and retake the bag and its contents; but he refused to do so, although nothing hindered or prevented him, and, against her protestations, caused the train to proceed at great speed for three miles to Bay St. Louis, where he stopped the train, and she despatched a trusty person to the place where the bag had fallen; but before he arrived there the bag with its contents was stolen and carried away by some person or persons to the plaintiff unknown, "and was wholly lost to the plaintiff by the gross negligence of the defendant as aforesaid." The further averments of the petition, undertaking to define specifically the nature and

1Affirming 20 Fed. Rep. 430.

effect of the obligation assumed by the defendant to the plaintiff, are mere conclusions of law, not admitted by the exception, in the nature of a demurrer, which was filed by the defendant, in accordance with the practice in Louisiana, upon the ground that the petition set forth no cause of action. The circuit court sustained the exception, and ordered the petition to be dismissed. 20 Fed. Rep. 430. On the day the judgment was rendered, and before it was signed, it was amended, on the plaintiff's motion, by adding the words, "unless the plaintiff amend her petition so as to state a cause of action within five days." Within that time the plaintiff filed an amended petition, alleging that the defendant received the plaintiff as a passenger, and the bag and its contents as part of her luggage, to be safely kept and carried by the defendant as a common carrier to New Orleans, and there delivered to the plaintiff; that the defendant did not so carry and deliver; and that the things were lost by the negligence and improper conduct of the defendant, and not by any want of care on the part of the plaintiff. The defendant excepted to the amended petition, because the plaintiff had no right to file one after the original petition had been dismissed as aforesaid, and because the amended petition was inconsistent with the original petition; especially in that the original petition alleged that the bag and its contents were held and kept by the plaintiff in her immediate possession, control, and custody, whereas the amended petition alleged that the defendant received them as her luggage. After argument on this exception, the order allowing the plaintiff to file an amended petition was modified by the court so as to provide that the amended petition should be deemed and should have effect only as an addition to the original petition; and the exception to the amended petition was sustained, and the action dismissed. The plaintiff sued out this writ of error.

The mere statement of the case is sufficient to demonstrate the correctness of the judgment below. The facts alleged in the original petition constitute no breach or neglect of duty on the part of the defendant towards the plaintiff. She did not intrust her bag to the exclusive custody and care of the defendant's servants, but kept it in her own immediate possession, without informing the defendant of the value of its contents, until after it had dropped from her hand through the open window. Even if no negligence is to be imputed to her in attempting to shut the window with the bag in her hand, yet her dropping the bag was not the act of the defendant or its servants, nor anything that they were bound to foresee or to guard against; and after it had happened she had no legal right, for the purpose of relieving her from the consequences of an accident for which they were not responsible, to require them to stop the train, short of a usual station, to the delay and inconvenience of other passengers, and the possible risk of collision with other trains.

This action being on the common-law side of the circuit court, the pleadings and practice were governed by the law of the state. Rev. St. § 914. By article 419 of the Code of Practice of Louisiana, "after issue joined, the plaintiff may, with the leave of the court, amend his original petition; provided the amendment does not alter the substance of his demand by making it different from the one originally brought." An amendment wholly inconsistent with the allegations of the original petition cannot be allowed. Barrow v. Bank, 2 La. Ann. 453. It is by no means clear that a petition, which has been dismissed as showing no cause of action, can be afterwards amended in matter of substance. Hart v. Bowie, 34 La. Ann. 323. But if the order allowing an amended petition to be filed could be lawfully made in this case, so long as final judgment had not been entered, it was equally within the power of the court to modify that order so as to treat the amendment as a mere addition to the original petition, and thus to preclude the plaintiff from contesting a material fact, within her own knowledge, which she had once solemnly averred. Judgment affirmed.

BULL and others, Partners, etc., v. FIRST NAT. BANK OF KASSON.1

(October 31, 1887.)


The following instrument

"$500. THE FIRST NATIONAL BANK, KASSON, MINN., October 15, 1881. "Pay to the order of D. five hundred dollars in current funds. "To Ninth National Bank, New York City.

F., Cashier."

-is, with respect to the liability of the parties thereto, a bank-check, and not a bill of exchange.


"In current funds," as used in a bank-check, means in money; and the insertion of those words in the instrument does not impair its negotiability.


Delay upon the part of a bona fide holder for value of a bank-check, drawn by a bank in one state upon a bank in another, in presenting it for payment, does not affect the non-availability of set-off as between such holder and the drawer, where the funds upon which the check was drawn were still in the hands of the drawee when payment was demanded.

In Error to the Circuit Court of the United States for the District of Minnesota.

This case comes before this court on a certificate of division of opinion between the circuit and district judges holding the circuit court of the United States for the district of Minnesota. The action was upon two drafts, or bills of exchange, (as they are termed in the record,) each for $500, drawn by the First National Bank of Kasson, in Minnesota, upon the Ninth National Bank, in New York City, and payable to the order of A. La Due, of which the following are copies:

"$500. THE FIRST NATIONAL BANK, KASSON, MINN., October 15, 1881.
"Pay to the order of Mr. A. La Due five hundred dollars in current funds.
"No. 18,956.
E. E. FAIRCHILD, Cashier.

"To Ninth National Bank, New York City.
"[Indorsed:] Pay to the order of M. Edison, Esq.


"$500. THE FIRST NATIONAL BANK, KASSON, MINN., October 15, 1881.
"Pay to the order of Mr. A. La Due five hundred dollars in current funds.
"No. 18,754.
E. E. FAIRCHILD, Cashier.

"To Ninth National Bank, New York City.
"[Indorsed:] Pay to the order of M. Edison, Esq.


The drafts or bills of exchange were immediately after their execution transferred by indorsement of the payee to one M. Edison, at Kasson, Minnesota. Edison was at the time largely indebted, and on the following day he absconded from Kasson, carrying the drafts with him. These drafts he retained in his possession until March 24, 1882, when, at Quincy, in Illinois, he sold and indorsed them for a valuable consideration to the plaintiffs, who had no notice of any set-off to them. The plaintiffs then forwarded them to New York city, where, on the twenty-seventh of March, they were presented for payment to the drawee, the Ninth National Bank of New York, and payment was refused by it. The drafts were then protested for non-payment, and notice thereof given to the drawer and indorsers. In the mean time the First National Bank of Kasson, the drawer of the drafts, had become the owner of certain demands against Edison, which, under the statute of Minnesota, could be legally set-off against its liability on the drafts in the hands of Edison, and also in the hands of the plaintiffs, unless they were protected against such set-off as innocent purchasers of the paper before maturity, and without notice of the set-off. At the time the drafts were drawn, and at the 1 Reversing 14 Fed. Rep. 612.

time of their presentation for payment, the Ninth National Bank of New York had in its hands money of the drawer sufficient to pay them.

The action was tried by the court without the intervention of a jury by stipulation of parties, and the facts stated above are embodied in its findings. Upon these facts the following question of law arose, viz.: Whether the said drafts, or bills of exchange, were to be regarded as overdue and dishonored paper at the time they were presented by the plaintiffs to the drawee for payment, and payment refused, so as to admit the set-off. Upon this question the judges were divided in opinion, and, upon motion of plaintiffs, it was certified to this court for decision. The circuit judge who presided at the circuit, being of opinion that the question should be answered in the affirmative, ordered judgment for the defendant. To review this judgment, upon the certificate of division of opinion, the case is brought here on writ of error.

Wm. McFadon, for plaintiffs in error. C. C. Willson, for defendant in error.

Mr. Justice FIELD, after stating the case, delivered the opinion of the court as follows:

In the record, the instruments upon which the action is brought are designated as "drafts or bills of exchange." In a general sense, they may be thus designated; for they are orders of one party upon another for the payment of money, which is the essential characteristic of drafts or bills of exchange. They are also negotiable, and pass by delivery, and are within the description of instruments of that character in the act of March 3, 1875, prescribing the jurisdiction of circuit courts of the United States. But, in strictness, they are bank-checks. They have all the particulars in which such instruments differ or may differ from regular bills of exchange. They are drawn upon a bank having funds of the drawer for their payment, and they are payable upon demand, although the time of payment is not designated in them. A bill of exchange may be so drawn, but it usually states the time of payment, and days of grace are allowed upon it. There are no days of grace upon checks. The instruments here are also drawn in the briefest form possible in orders for the payment of money, which is the usual characteristic of checks. A bill of exchange is generally drawn with more formality, and payment at sight, or at a specified number of days after date, is requested, and that the amount be charged to the drawer's account. When intended for transmission to another state or country, they are usually drawn in duplicate or triplicate, and designated as first, second, or third of exchange. A regular bill of exchange, it is true, may be in a form similar to a bank-check, so that it may sometimes be difficult, from their form, to distinguish between the two classes of instruments. But when the instrument is drawn upon a bank, or a person engaged in banking business, and simply directs the payment to a party named of a specified sum of money, which is at the time on deposit with the drawee, without designating a future day of payment, the instrument is to be treated as a check rather than as a bill of exchange, and the liability of parties thereto is to be determined accordingly. If the instrument designates a future day for its payment, it is, according to the weight of authorities, to be deemed a bill of exchange, when, without such designation, it would be treated as a check. Bowen v. Newell, 8 N. Y. 190.

The instruments upon which the action is brought being bank-checks, the liability of the parties is determinable by the rules governing such paper. A check implies a contract on the part of the drawer that he has funds in the hands of the drawee for its payment on presentation. If it is dishonored, the drawer is entitled to notice; but, unlike the drawer of a bill of exchange, he is not discharged from liability for the want of such notice unless he has sustained damage, or is prejudiced in the assertion of his rights by the omission. In Bank v. Bank this court said: "Bank-checks are not inland bills of exchange, but have many of the properties of such commercial paper; and many of the rules of the law-merchant are alike applicable to both. Each is for a

specific sum payable in money. In both cases there is a drawer, a drawee, and a payee. Without acceptance, no action can be maintained by the holder upon either against the drawee. The chief points of difference are that a check is always drawn on a bank or banker. No days of grace are allowed. The drawer is not discharged by the laches of the holder in presentment for payment, unless he can show that he has sustained some injury by the default. It is not due until payment is demanded, and the statute of limitations runs only from that time. It is by its face the appropriation of so much money of the drawer in the hands of the drawee to the payment of an admitted liability of the drawer. It is not necessary that the drawer of a bill should have funds in the hands of the drawee. A check in such case would be a fraud." 10 Wall. 647.

Similar language is used by Mr. Justice Story with reference to the time when checks are to be regarded as due. In stating the differences in point of law between checks and bills of exchange, he refers to the rule that a bill of exchange taken after the day of payment subjects the holder to all the equities attaching to it in the hands of the party from whom he receives it. "But," he adds, "this rule does not apply to a check; for it is not treated as overdue, although it is taken by the holder some days after its date, and it is payable on demand. On the contrary, the holder in such a case takes it subject to no equities of which he has not, at the time, notice; for a check is not treated as overdue merely because it has not been presented as early as it might be, or as a bill of exchange is required to be, to charge the drawer or indorser or transferrer. One reason for this seems to be that, strictly speaking, a check is not due until it is demanded." Prom. Notes, § 491. See, also, In re Brown, 2 Story, 502, 513.

Accepting these citations as correctly stating the law, the question presented for our decision is readily answered. The drawer was in no way injured or prejudiced in his rights by the delay of Edison to present the checks. The funds against which they were drawn remained undisturbed in the hands of the drawee, and therefore the drawer had no cause of complaint. The instruments in suit were not overdue and dishonored when presented for payment. Until then the plaintiffs, as purchasers for a valuable consideration without notice of any demand against Edison, in the hands of the drawer, were protected against its set-off.

The certificate of division of opinion presents to us only one question, and yet, to answer that correctly, we must consider whether the negotiability of the instruments in suit was affected by the fact that they were payable "in current funds." Undoubtedly it is the law that, to be negotiable, a bill, promissory note, or check must be payable in money, or whatever is current as such by the law of the country where the instrument is drawn or payable. There are numerous cases where a designation of the payment of such instruments in notes of particular banks or associations, or in paper not current as money, has been held to destroy their negotiability. Irvine v. Lowry, 14 Pet. 293; Miller v. Austen, 13 How. 218, 228. But within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or makers of promissory notes, to indicate whether the same are to be paid in gold or silver, or in such notes; and the term "current funds" has been used to designate any of these, all being current and declared, by positive enactment, to be legal tender. It was intended to cover whatever was receivable and current by law as money, whether in form of notes or coin. Thus construed, we do not think the negotiability of the paper in question was impaired by the insertion of those words.

It follows from these views that the question certified to us must be answered in the negative. The judginent will therefore be reversed and the cause remanded, with directions to enter judgment for the plaintiffs upon the findings; and it is so ordered.

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