usually show when their interests de directing the service of the further bill reasonable diligence as men of business of particulars demanded. Opinion by Brady, J.; Davis, P. J.,pend upon correct information. The and Daniel, J., concurring. NOTICE OF PROTEST. Decided March 6, 1876. holder must act in good faith and not give credit to doubtful intelligence when better could have been obtained. (21 Wend., 643.) And until some one is found who professes to be able to give the required information it will not do to stop short of a thorough inquiry at places of publie resort, among those most likely to know of the endorser's residence. (3 Looking in the directory merely for the address of an indorser is not making that diligent inquiry which the sta-Hill, 520; 2 Sandf., 178,) and each of tute requires. Appeal from judgment recovered at circuit. the other parties to the paper, when they may be accessible. (16 N. Y., 235.) The statements in the directory afIn November, 1872, W. H. De Groot forded the opportunity for, and suggestmade his promissory note to the ordered further enquiry; without making of Theodore De Groot, who thereafter which the Notary could not properly endorsed and delivered it to one Mc-act, save at his peril. Lean, thereafter passing through differ- In this case the proper degree of dili gence was not shown. Judgment for the endorser, Theodore De Groot, reversed and new trial ordered. Opinion by Daniels, J.; Davis, P. J., and Brady, J., concurring. USURY. quiries or efforts were made to learn if SUPERIOR COURT OF CINCINNATI, GEN that was in fact the right address. The Wm. G. Wheelwright for respt. ERAL TERM. Hubbell, pliff. in error, v. Mansfield deft. in error. Decided October, 1875. In order to avail himself of usury in a mortgage, a party other than the mortgagor must assert an interest in the mortgaged premises. On appeal held, That the only question before us is whether that degree of diligence in ascertaining endorser's This petition in error is prosecuted address, as required by the statute, was here by Hubbell to reverse a judgment shown, by simply looking into the di- and order for the sale of mortgaged rectory and then finding what appeared premises rendered in this court in to be the endorser's address and mailing special term in favor of Mansfield the notice thereto. The law requires, against one Weiler, the sum found due in order to charge an endorser, such being $2,284.94. The notes, which were negotiable, with others, and the mortgage, were made by Weiler to McGuffey, and by him assigned before due to Mansfield. stances of each case, the time, the mode, and the place of receiving the check, and the relations of the par ties. The time for presentment may be extended by the assent, express or implied, of the drawer. in In the petition to foreclose the mortgage Hubbell was made a party defendant, the averment as to him being that Assumpsit upon a bank check plaintiff is informed and believes that brought to the Court of Common Pleas Hubbell claims some lien upon or inter- for Hartford County. The court made est in said mortgaged property, or a finding of the facts and reserved the some part thereof, of the precise nature case for the advice of this court. of which claims plaintiff is not in- The parties to this suit resided in formed. The prayer was that Hubbell Southington, twenty-two miles from be made a party defendant and re- New Haven. They met together on quired to answer, etc. Hubbell was the morning of the 24th of March 1873, duly served with process, but filed no and in the settlement of some business answer and made default. Hubbell transactions, the defendant gave the claims that the decree shows that usuri- plaintiff his check for $40 on E. S. ous interest is included in it, and that Scranton & Co., a banking company it is made to draw a usurious rate of New Haven. The plaintiff then reinterest. quested the defendant to give him another check for $425, counting out to him bank bills to that amount. The reason of the request was, that the plaintiff' was indebted to one Goodwin, who resided at Lime Rock, in Litchfield County, to whom he was about making a remittance, and he preferred to make it by a check rather than by bills. There was no bank at Southington. The plaintiff deposited the $40 check that day at a bank in Meriden, where he kept his bank account, and on the next day it was presented for payment and duly paid. The defendant gave the check for $125, as requested, taking bank bills of the plaintiff for that sum, which, with $125 more, the with Scranton & Co., on whom the defendant, on the same day, deposited David P. Woodruff v. Amzi P. Plant. checks were drawn. The plaintiff, on Decided February, 1876. the same day, enclosed the check for The holder of a bank check is bound to $425 to his creditor, Goodwin, at Lime present it within a reasonable time, Rock, who received it the next day, but what is a reasonable time de- the 25th, and immediately deposited it pends upon the particular circum-in the National Iron Bank of that vil Held, That Hubbell does not appear to have any interest in the premises or any part thereof, which he must have to be entitled to attack the decree upon the ground of usury. Weiler, the debtor, could waive usury, and he must be held to do so until he files his peti tion in error. Hubbell's default was, in legal effect, an admission that he had no interest in the premises to be protected against any decree that might be rendered against Weiler for usury. Judgment affirmed with costs. BANK CHECK. PRESENTMENT. REASONABLE TIME. SUPREME COURT OF ERRORS OF CONNECTI CUT. lage for collection. This bank, by the time for presentment may be extended next mail after its receipt, sent it to a by the assent of the drawer, express or bank in New Haven for collection, implied, is well settled. Here the which bank received it on the afternoon time for presentment was extended by of the 26th of March, and early on the the assent of the drawer, not for a defimorning of the 27th, presented the nite time, certainly, but for a reasonsame for payment, which was refused, able time; and we are quite clear that -the banking house of Scranton & Co. a reasonable time had not expired when having failed and closed its doors on the this check was presented for payment. 26th. The check was duly protested and dishonored. for non-payment, and the requisite notices were given to all parties. The plaintiff paid Goodwin the amount of this check, and brings this suit to recover it from the defendant, who was the drawer. Held, There can be no dispute as to the law regarding the presentment of a check for payment in order to charge the drawer in case of dishonor. The holder is bound to present it within a resaonable time, and to give notice thereof within a like reasonable time; otherwise the delay is at his own peril. What is a reasonable time will depend upon circumstances, and will, in many cases, depend upon the time, the mode, and the place, of receiving the check, and upon the relations of the parties between whom the question arises. Here three days only elapsed between the giving of the check and its presentment for payment. We think the plaintiff is entitled to recover, and so advise the Court of Common Pleas. Opinion by Foster, J. EVIDENCE. PRACTICE. N. Y. COURT OF APPEALS. Clark, applt., v. Donaldson, respt. Decided February 8, 1876. Upon an issue as to whether defendant was the owner of a stock of goods which he claimed he had sold by verbal agreement, conversations between defendant and the alleged vendee, at the time the property was sold, are competent evidence. Evidence improperly received must work an injury to justify a reversal. Where evidence which has been erroneously rejected is afterwards admitted the error is obviated. Where evidence was received, "subject to objection," and the objecting party having taken no exception then, or subsequently, it cannot be considered on appeal. This action was brought to recover money received by defendant on plaintiff's account and for rent claimed to be due from defendant. Plaintiff claimed The particular circumstance attending this case we consider very important. The defendant knew that the plaintiff desired this check to make a remittance; that it was not to be im- that defendant purchased plaintiff's inmediately presented for payment; and would not reach the bank for several days. The case of Daggett v. Whitney, 35 Conn. 366, is certainly an authority to show that what the understanding of the parties was at the time that the check was drawn and delivered enters into the contract. That the customers, and account to plaintiff for terest in a certain business in which he was engaged, and they agreed that the old books of account of plaintiff should remain at the store, and that plaintiff should not send out any bills for colleclection, and that defendant should collect the bills, continue to deal with the his share of the bills; that in accord- ject without objection, and his answers ance with this agreement the books were substantially the same. were left with the defendant. Defend- Held, no error. That no injury reant denies any agreement on his part sulted from the repetition of the testito collect or account, or that he made mony. any collection, but allowed that he Defendant was asked on his crossmade a purchase for the benefit of his examination: "At that interview (reson Thomas, and one B, his brother-in- ferring to a conversation between the law, it being agreed they should pur- witness and Thomas and Barker) you chase of him and carry on the business, claim that the partnership between and from the proceeds pay all debts and Thomas and Barker was organized?" expenses, and from the profits pay de- This question was objected to by defendant the cost of the same; and that fendant's counsel and the objection susthey were to carry on the business un-tained. No ground of objection was der the firm name of Thomas Donald- stated. The witness was allowed imson & Co.; that this was known to mediately afterwards to state that the plaintiff'; that he had no interest in co-partnership agreement was made on the firm, and all collections made were that occasion. made by them. Held, That this obviated the error in Upon the trial defendant offered sustaining the objection to the previous proof of a conversation between Thomas question. and himself, when he sold the property to him. This was objected to, and the objection was overruled. One D, a witness on the part of the plaintiff, was allowed to testify that he had sold goods to one R. D. for the Thomas Nolan, for applt. store after plaintiff had sold the stock Francis Tillou, tor respt. to defendant. This witness had testiHeld, no error. That as the sale was fied that plaintiff introduced said R. D. by verbal agreement, and parol proof to him as his successor in business, and of the transaction was the only evi- as to the manner of conducting the dence that could be given on the sub- business after the plaintiff sold out. ject, it was competent to show that defendant did not conduct this business, that being a fact in issue by the pleadings, and proof that defendant after he purchased sold the stock to one of the persons in whose name the business was afterwards carried on, was competent upon this issue. Defendant was asked the question: "Explain more fully what you meant by saying that you stated the case to Thomas and Barker, and gave them possession and told them to go on?" This was objected to and the answer taken under exception. The witness had testified before upon the same sub Held, That this evidence was competent upon the question whether the business was plaintiff's or R. D.'s. Upon objection being made by plaintiff to certain evidence offered, the case states it was received by the referee "subject to objection." Plaintiff did not except or insist on a definite ruling upon the admissibility of the evidence offered at the time or subsequently. Held, That as there was no exception which raised the question as to its competency it would not be considered. Judgment of General Term, affirming judgment on report of referee dismissing complaint, affirmed. Opinion by Andrews, J. N. Y. COURT OF APPEALS. MASTER AND SERVANT. WHEN ant, in good faith, and in the discharge MASTER LIABLE FOR TORT of a duty he owed it, defendant would OF SERVANT. WILLFUL ACT. be responsible for his carelessness and negligence, but if he acted wilfully and maliciously, then he alone would be responsible. The judge refused to qualify this charge or to charge that it was suf ficient to exempt defendant from liabil ity, that the act of the baggage-master Rounds by Guardian, respt, v. The Del., Lack. & W. R. R. Co., applt. Decided February 8, 1876. A willful act which will exempt a master from liability for the tort of his servant, is in its legal sense malicious also. In an action for negligently and carelessly ejecting plaintiff from a railway car, whereby he was unnecessa was wilful. E. H. Prindle. Held, no error. That a wilful act rily injured, it is no defence that he which will exempt a master from liawas a trespasser upon the car. The rule governing the master's liability bility for the tort of his servant, is in for the torts of his servant, in the its legal sense malicious also. The incourse of his employment, in using tentional doing of a wrongful act force towards or against another, without canse or excuse, is malici stated. The master is not liable for the willful 115). That the court could not say ous (9 Metc., 93; 4 Mason, and malicious act of the servaut. . This action was brought to recover from the evidence that the baggagedamages for injuries received by plain- master acted outside of and without retiff, by being pushed off of one of de- gard to his employment, or designed to fendant's cars. It appears that plain- do the injury, or that the act was willtiff, in violation of defendant's rules, got ful, that this question was properly left upon the rear platform of the baggage to the jury (47 N. Y., 274). The fact car of a train that was standing in the that the plaintiff was a trespasser was depot in order to ride down to a round no defence, he was entitled to be prohouse near by, into which the cars were tected against unnecessary injury by to be backed to make a new train. On defendant or its servants, in exercising one side of the track was piled wood for the right of removing him (23 N. Y., over 100 feet. After the train bad 343; 9 Al., 557; 12 id., 580). When started defendant's baggage master, authority is conferred on a servant by a who had charge of the train, discovered master to act for him, without special the plaintiff and ordered him to get off, limitation, it carries with it by implicathe latter told him he could not without tion authority to do all things necessary his help on account of the wood, and to its execution, and when it involves the baggage master thereupon kicked the exercise of the discretion of the him off the car, so that in falling his servant, or the use of force towards or chest hit against the wood pile and he against another, the use of such discrerolled over under the cars, which passed tion or force is a part of the thing auover and crushed one of his legs. The thorized, and when exercised becomes court charged the jury that although as to third persons the discretion and plaintiff was a trespasser, yet if the bag- act of the master, and this, although the gage-master in pushing him off the servant departed from the private intrain acted as the employee of defend-structions of the master, provided he |