lence was admitted, under objection and exception by the defendant, that the plaintiff, after the second expulsion, offered to his fare and was refused admittance to the train. Also, under exception, the following conversation between the ticket agent and plaintiff was admitted; pay But held that with reference to the evdence that the plaintiff tendered his fare and was refused admission to the train that was improper. If a refractory passenger is put out of the car, and by refrac tory is meant any one refusing to comply with the rules the company can lawfully I said to this agent: "I want to buy a make, he cannot demand, as matter of ticket an excursion ticket-to South-right, even upon complying with the rule ampton, from New York to Southampton violated, to be taken back again eo inand back again." He said it would be stante, unless he is put off at a regular $3 50. I said: "How long does this stopping station, and unless at least he ticket run?" He said "Thursday." I then and there obtains a ticket or tenders said that will just suit me because I want his fare. He cannot, as suggested, get to come back on the 7th. He said to me, himself ejected from a train, offer to pay "Well, I don't know about that; I think his fare, and recover damages for being the ticket expires on Monday." said I, refused admission to the train. Being "Oh, no. On Sunday you do not run any unable to say on which theory the jury detrains, and Monday will be one day as I termined the plaintiff entitled to success, am going on Saturday afternoon; Tues- the judgment must be reversed. day will be two days and Wednesday three days." He said: "shall I give you a ticket." I said "Yes." The judge in his charge to the jury left it with them to say whether the ticket agent did anything which induced plaintiff to alter his position and to buy the ticket, believing that it would be good till the 7th. The 5th of August was on Monday. E. P. Wheeler for respt. Held, The learned justice was right in declaring that the ticket was not conclu-, sive of the plaintiff's rights. It was only a token or voucher adopted for convenience to show that the passenger had paid his fare from and to the points named. The plaintiff had the right therefore to show that in a conversation before his purchase from the defendants' agent, he was induced to believe that he could use the ticket on the day when he attempted to do so and was ejected. The question as to what the contract really was as to his transportation was one, therefore, to be determined by the facts disclosed. The statements of the ticket agent were bind. ing on them. Opinion by Brady, J.; Davis, P. J., concurs in result, but holds that there was no agreement to be submitted to the jury between the agent and plaintiff; Daniels, J., concurs in the opinion, with modifica tion of Davis, P. J. NEGOTIABLE PAPER. SALE OF. This action was brought upon a promissory note made by defendant for the accommodation of the firm of Lambert & Lincoln, who had it discounted and received the proceeds. Before the note become due the firm was dissolved, and Lincoln was to close up its business. Plaintiff resided in Canada, and Lincoln wrote and requested him to take the note and furnish the money to take it up. He sent the money a few days before the note became due to Lincoln, who put it in the bank to his individual credit. On the day the note become due Lincoln went to the bank and by his individual check paid the note to the discount clerk, who knew it was an accommodation note, without as sory note is induced to sign it by fraud, yet in so signing acts negli gently, he is liable thereon to a bona fide holder for value. This action was, at the September term, 1874, committed to a referee, who, at this term, reported the following facts: This is an action of assumpsit upon a promissory note, of which the following is suming to act as agent for, or asking to have the note transferred to any one, and a copy; "Tilton, N. H., January 1st, did not mention plaintiff's name. He 1872,. Nine months after date, I promise asked to have the note protested so that to pay, to the order of R. M. Grems, one he could hold the endorser and maker, hundred and forty dollars, at my residence but did not state why he wished to hold in Tilton, N. H., value received and int. them He afterwards sent the note to Due Oct. 4, 72. LORENZO SMITH." On the back of said note is the following: plaintiff. "Without recourse. R. M. Grems." "Demand and notice waived. Leonard Gerrish." The plaintiffs purchased the note, a short time after its date, in good faith, without notice of any defect. The signature is genuine, but the note is wholly Thos. H. Hubbard, for applt. Held, That there was no sale by the bank of the note to plaintiff; that the bank could not be made a seller without its knowledge or consent; that by a sale without consideration. The defendant of the note the bank would have impliedly warranted that the paper was genuine and all it purported to be on its face, and it could not be drawn into this implied warranty without its consent. (32 N. H., 238; 20 N. Y., 226; 4 Duer. 79; 5 R. I., 218; 2 Parson on bills and notes, 2d ed, 37.) That there was no transfer of the note by the bank, and plaintiff's title was derived from Lincoln and cannot be inforced against the defendant, as the note was taken subject to any defense defendant could have made if sued by Lincoln, and the note having been made for the accommodation of the firm of which he was a member he was bound as to the maker to pay it. did not contract to give any note, nor know or have any suspicion that it was a note he was signing, but was fraudulenly induced by the payee to sign it under the pretence that it was an agreement to become agent of a patent haj-fork, and upon the representation by the payee that the defendant was to incur no pecuniary liability. It was a negligent act on the part of the defendant to sign the note without ascertaining whether it was what the payee represented, or something else. [At the request of the defendant, I add the following: The defendant is an old man, of limited education and poor eyesight, and is not in the habit of writing except to sign his name. To this, at the request of the plaintiffs I add the following: His daughter, an intelligent woman, was present when the note was signed, and had an opportunity to read it.] A few days after the note fell due, the defendant, having learned that the plaintiffs had it, called at the bank and examined it, and gave notice to the cashier that he should not pay it. There was no proof If the maker of a negotiable promis- that payment of the note was ever de Order of General Term, reversing judgment in favor of plaintiff, affirmed. Opinion by Earl, J. NEGOTIABLE PAPER. NEGLI GENT SIGNING. ESTOPPEL. SUPERIOR COURT OF NEW HAMPSHIRE. Citizens' National Bank v. Smith. Decided August 12, 1875. manded at the defendant's house. The defendant's counsel, on the day after the hearing closed, took the position, in a letter to the referee, that the action cannot be maintained for want of a demand at defence fails to to establish it but is al lowed, without objection, to prove, uncontradicted another, viz.: want of consideration, it is error to refuse to direct a verdict for the defendant. Appeal from judgment entered on'verdict of a jury. the defendant's house. The referee ruled, pro forma, that the plaintiffs are entitled to recover, and finds that the def ndant did promise, in manner and form as the plain-sory note. Defendant was a member of This action was brought on a promis the firm of L. O. Wilson & Co., who obtained from their creditors a composition deed, the creditors agreeing to take twenty per cent. to be paid by or before Jan. 1st, 1862. Plaintiff's firm signed this tiffs have declared, and assesses the damages in the sum of one hundred and forty dollars, and interest from January 1, 1872; but if the court shall be of opinion that upon the foregoing facts the plaintiffs are not entitled to recover, then the referee agreement, and on Dec. 20, 1861, received finds that the defendant did not promise in manner and form as the plaintiffs have declared. The questions arising on the foregoing report were transferred to this court for determination by Rand, J. Held, That the defendant would not be liable ordinarily, as his signature was obtained by fraud, but that the finding that he acted negligently in signing estopped him from denying, as against an innocent holder, the usual legal effect of his signature to a negotiable instrument, and brought the case within the principle that "where one of two innocent parties must suffer by the acts of a third, he who has enabled the third person to occasion the loss," must suffer it. the twenty per cent. The note in this action bears date August 1st, 1861. The date of entry of the note among plaintiff's bills receivable, is Dec. 21st, 1851. Defendant alleged, that the note was given as an inducement for signing said deed, in fraud of other creditors. He fails to establish this on the trial, but was allowed, without objection, to testify that upon the delivery of said note, no consideration was paid therefor. Held, If the note was given for transactions with L. O. Wilson & Co., prior to the payment of the twenty per cent., it ceased to have any validity after such payment, and there is no testimony tending to prove any transaction with them thereafter. A subsequent promise to pay Opinions by Cushing, C. J.; and Ladd such a note would be no more binding and Smith, J. J. NOTE IN FRAUD OF COMPOSITION N. Y. SUPREME COURT. GENERAL TERM. John M. Slade, Survivor, &c. respt. vs. Decided January 28, 1876. A note given to obtain the signature of a creditor to a composition deed, the amount of which is in excess of the amount paid other creditors, is void. When a defendant, setting up such than the note itself, which was without consideration. The specific defense set up was not established, but the failure of consideration was, and cannot be disregarded. The Court erred in not directing a verdict for the defendant on the ground of failure of consideration. Judgment reversed and a new trial ordered, costs to abide the event. Opinion by Brady, J.; Davis, P. J. and Daniels, J., concurring. EVIDENCE. ACCOUNT BOOKS. N. Y. SUPREME COURT, GENERAL TERM FIRST DEPARTMENT. B of Mitchell & Co. under notice for their production by defendant's counsel. The account of Betsey Mitchell was received Betsey Mitchell, Respt, v. Martin in evidence by consent of defendant's at Y. Bunn, Applt. Decided Mar. 7th, 1876. torney. The ledgers refer to other books from which the accounts were apparently made up. Under date of Arpil 1st, the Books produced on notice by opposing date of the note in suit, Mrs. Mitchell is counsel are competent as evidence. debited "To note for balance $577.56," the Where one of a set of books, containing amount of the note in suit. Under date entries in brief and referring to othof January 23d and February 19th, 1866, er books for a fuller explanation, is received in evidence, it is competent appeared credits for $300 and $100, which to refer to the entries in such other plaintiff testified were proceeds from sale books referred to, and such entries of her property, received by her husband. are competent evidence. Where the books of defendant's firm, in which is an item debiting plaintiff with the note in suit, is introduced in evidence to charge defendant with personal knowledge of its issue, it is competent for him to testify that he had no such knowledge at the time, or until long afterwards. Appeal from judgment entered on report of referee in favor of plaintiff. Plaintiff's husband and the defendant were co-partners in trade, doing business under the firm name of Mitchell & Co. This action is brought on a promissory note given by plaintiff's husband, at the time this action was brought, deceased, to plaintiff for money alleged to have belonged to plaintiff and used in the business of said firm. The answer denied upon information and belief that Mitchell & Co made the note, and alleged that if the note was made, it was made by Mitchell for his individual indebtedness; also denied that Mitchell & Co. ever received any consideration therefor, and denied that defendant was in any way liable thereon, and by an amendment of the answer set up a counter-claim. Plaintiff was called as a witness by defendant, and on cross-examination gave evidence tending to show that she had a separate estate, consisting of moneys left her by her father, which moneys had been placed to her credit in the firm of Mitchell & Co. Plaintiff's counsel produced ledgers A & Defendant offered to show by the books of Ten Broeck & Van Orden for applt. Held, error: The day books, so far as they relate to those items, should have been received in evidence. The ledgers, having been produced on notice, were competent, and it was competent to go back to the day books to explain the items in the ledger. Defendant was also asked, "When was the existence of this note first brought to your attention ?" The answer was excluded. Held, error. The evidence was competent to rebut, so far as it might go, the implication of knowledge presumed to be denied from the contents of the ledger. Judgment reversed and new trial granted, costs to abide the event. Opinion by Davis, P. J.: Brady, J.: and Daniels, J., concur. MORTGAGE. RECORDING ACT. N. Y. COURT OF APPEALS. Decided February 15th, 1876. stating it was given for purchase money, it showed it was given at the same time with the G. mortgage, and that neither could have a preference, but that the only effect of the recording of an assignment against a subsequent sale of the mortgage of a mortgage is to protect the assignee itself, the recording act only applying to successive purchasers from the same sellD. and W. were entitled to share equally ers, 42 N. Y., 334; and that, therefore, in the surplus. This was a controversy between defendants D. & W. as to surplus money arising from a sale on the foreclosure of plaintiff's mortgage. It appear d that D. & G. were the owners of the land sold subject to plaintiff's mortgage; that they conveyed the same to B., and each received from him a purchase money mortgage for the Order of General Term, affirming order same amount, with the understanding of Special Term, reversed, and that of that they were to be equal liens upon the real estate. first. After D.'s mortgage had been recorded, G. assigned his mortgage to E. P. G. This assignment was recorded. E. P. G. afterwards assigned it to W. The referee held that W. was a bona fide holder for value, and that the mortgage held N. Y. SUPREME COURT, GENERAL TERM, G.'s mortgage was recorded Special Term modified. by him by virtue of its priority upon the Z. S. Westbrook for applt. Opinion by Earl, J. EVI SPECIFIC PERFORMANCE. FOURTH DEPARTMENT. Decided January, 1876. The Court can only order the exceptions taken in a case to be heard in the first instance at the General Term. A parol sale of land with possession under it for twenty years makes a good title. Where a person stands by and overhears a conversation between a deceased person and his wife it is not a personal one under statute. Plaintiff claims to recover of defendants about 70 acres of land, and claims title under her husband's will. Held, That aside from the recording act W. took his mortgage subject to the equities between G. and D., and could claim no priority. 22 N. Y, 535; id. 61. That there was nothing to estop D. from asserting his rights, as he did noth ing to induce a purchase of the G. mortgage, and did not, by any act or omission, mislead W. or his assignor. Morse vs. M. Defendant disclaims title in himself, Bk. 55 N. Y., 41. distinguished. That the but alleges title in his wife Samantha, recording act did not affect the rights of &c. Samantha claims title under an old the parties (1 R. S., 756, Sec. 1), as that agreement with her brother, Samuel B. only applies to subsequent conveyances Benedict, made in 1851, with possession which are first recorded, and the G. mort for 20 years, as follows: In 1851 Samuel gage was not a subsequent conveyance, B. Benedict was the owner of the land in but one executed at the same time; that question, and proposed to sell and did if W., by virtue of his assignment, could sell to defendant, Samantha, the land for be regarded as a subsequent purchase", $227, in payments of $50 each, as he the statute did not aid him, as D.'s mort- should call for them. Samantha was also gage was recorded before the assignment, to pay one Levi B., after the death of the and as that mortgage contained a clause, mother of said Samantha the sum of $300, |