commissioners, certificate, that the contract was free from fraud. The answer, (1.) Denied that the contract was ever actually made. Held, That the defendant in its answer omitted the allegation of fraud which its officers believed could be shown in the case, for the reason that (2.) Denied that there had been it believed itself to have been concluded sealed bids and proposals, or precedent in attempting such a defence by the resolutions of the common council. commissioners, certificate; but the de(3.) Denied the amount of labor or cision of the court of appeals seems to material as set up in complaint, or have removed that disability, and fraud complied with terms of contract. (4.) Alleged the materials furnished to have been inferior. could now be properly alleged. The circumstances in the case seem to be sufficient to excuse the omission of (5.) Denied the validity of the cer- this defence in the first instance. It tificate. It however contained no direct was omitted in good faith under a allegation of fraud. misapprehension, and justice would apOn these issues the case went to trial, pear to require that an opportunity be when plaintiff was non-suited. The given defendant to set this up. Nor general term sustained this judgment, should the death of two of the plainbut the court of appeals reversed this tiff's witnesses prevent this, even though decision, holding that the defects in it may to some extent be unfortunate the contract were cured by chap. 5, for plaintiff, for if the contract was laws of 1871, also holding that the fraudently obtained or the work fraucommissioners, certificate was invalid, dently done, the public should not be as they had no jurisdiction and that cause of these witnesses' absence, be comdefendant might give evidence of pelled to bear the burden of fraud. fraud. If the defence of fraud is not established, then plaintiff's claim so far as it may be sustained will be allowed, and the absence of the deceased parties will not prevent that result; and if the demand be fair and honest there is no reason for supposing that defendant can show it to be fraudulent. A new trial was ordered. The defendant now applies for leave to set up as a defence, fraud in the inception of the contract, claiming that when the answer was originally drawn it believed itself to be concluded from alleging fraud, by the commissioners certificate; but that the court of appeals having declared that to be of no effect, they now seek to avail themselves of the benefit of that decision. The case is a proper one for allowing the amendment desired, but as it will raise an entirely new issue, and as the one presented by the present The application was denied, for the answer has been decided against the reason that two of plaintiff's most defendant, it should be on payment to important witnesses on the question of plaintiff of all costs since the answer fraud, Brown, the contractor himself, and Tracy, the engineer of the department of public works, were both dead. Francis Lynd Stetson, for applt. John E. Develin, for respt. On appeal. was served. Order reversed and an order entered allowing defendant to amend its answer on above terms. Opinion by Daniel, J. Davis, P.; J., and Brady, J., concurring. AGENCY. COLLECTION OF COM-| had at that time, a large balance due it MERCIAL PAPER BY BANKS. from that bank. U. S. CIRCUIT COURT, N. D. OF ILLINOIS. Where commerciai paper is sent to a This action was brought to recover of defendant a certain sum of money charged to have been collected by de fendant for plaintiffs, of John Hutchins. Plea, general issue. It was tried by stipulation, by court. The Cook County Bank failed on the 19th January, but the defendants had no knowledge of its failure or embarrassment until about noon on the 19th. The testimony also showed that custom between that bank and defendant, and also between the other Chicago banks and their country correspondents, was to make collections of notes sent there for that purpose, and credit the proceeds to the bank transmitting tl em. That no account was kept with any other person of such paper sent for collec tion, and that this custom prevailed as well when the paper was endorsed to the bank sending for collection on account of their own, as when indorsed generally, and accounts of all such transactions, in all cases, were kept in the same way. The evidence showed that John Hutchins, of Lacon, in this State, gave his note to the plaintiffs, residents of New York city, for $407.63, on the 15th day of September, 1874, payable Held, That when an owner of comin four months, at the First National mercial paper sends it to, and it is acBank of Lacon, the defendant. The cepted by, a bank for collection, whethplaintiffs indorsed the note to the order er payable at the place where such of A. Hest, Esq., cashier, for collection bank is located, or elsewhere, in the abfor their own account. Hest then in- sence of any contract to the contrary, dorsed it to the defendant, for col- there is an implied agreement with lection for Cook County National such bank arising from the acceptance Bank. Mr. Hest was the cashier of of the employment, that it will perform the Cook County National Bank, and all the acts necessary for the collection, sent the note in a letter to defend- and if not paid, of charging the parties ant on the 11th day of January, 1875, thereto. It is not regarded as the apwith instructions "to collect and cred-pointment of the bank as the attorney it." The defendants kept an account of the owner of the paper, authorized with the Cook County Bank, and then to select other agents suitable and had a considerable sum in that bank competent for the purpose of collecting The note was paid to defendant on the the note, but on the contrary, "its po18th of January, 1875, and credited to sition is that of an independent conthe Cook County Bank, as other collec- tractor, and that the instruments emtions in the usual course of business. ployed by such bank in the business The defendant remitted, on that day, to contemplated, are its agents, and not the Cook County Bank, more money the agents of the owner of the note." than this collection amounted to, and That its duty is not discharged when it selects responsible agents to perform Hardy (the present plaintiffs were afthe duty intrusted to it. That the own- terwards substituted, having become er of the paper is not to look to the re- possessed of the former plaintiff's rights) sponsibility of the agents entrusted by in the sum of $6,000 on merchandise, the bank with its collections. That the principally whiskey and packages conbank to which he commits the paper is taining the same, "their own or held by alone answerable to him for the per- them in trust or on commission, or sold formance of all acts necessary to secure but not delivered, contained in buildhis rights, including the payment of the ings Nos. 213 and 215 State street Bosmoney when collected, and that the lia- ton, Mass.," against all loss or damage to bility to pay over attaches as soon as the same by fire for and during the the money is paid, either to it or a sub- term of twelve months from said date. agent selected by said bank to collect for it. N. Y. SUPREME COURT-GENERAL TERM, John S. Kline and Clinton McClarty, Decided May 5, 1876. A general agent having the custody and That in October, 1873, a fire occurred upon the premises described in said policy, which loss and damage exceeded in amount the sum of $6,000. That the goods insured were the property of W. J. Hardy & Co. of New York, a firm composed of Milton J. Hardy and Charles B. Moorman. The firm had no store in Boston, but shipped goods there from time to time as sold, and in anticipation or expectation of sales. That the original plaintiff was clerk for said firm at Boston, and was authorized under a written power of attorney to sell goods of said firm and collect the proceeds of such sales in the name of said firm as their attorney. Under the power of attorney, W. J. Hardy took charge in Boston of the New England business of M. J. Hardy & Co. A bank account was kept in a Boston bank in the name of M. J. Hardy & Co., and plaintiff deposited in it receipts for sales and the New York firm drew in the name of that firm. Afterwards, however, for certain business reasons, W. J. H. opened a bank account in his individual name, sold M. J. Hardy & Co. goods in his own That the defendant, a corporation, name,, and as to third parties appeared January 21, 1873, made and delivered to be transacting business on his own its certain policy of insurance insuring account. These goods were, however, the original plaintiff, Wellington J. the property of M. J. Hardy & Co., This action was brought to recover for loss and damage by fire upon a policy of insurance issued by defendant. The following facts were found by the referee: and the net proceeds thereof were paid or abridge that employment. And the over to them from time to time by the risk of loss in that manner was suffiplaintiff; all expenses connected with cient by the way of interest to entitle the business being paid out of the pro- him to insure the property. In a gen ceeds of sales, the plaintiff being paid eral sense, too, and as that term is ora salary, and having no personal inter-dinarily used, he held the property est whatever in the goods or their sale. committed to his custody for the purPlaintiff rented the lofts in the prem-poses of the business in trust for the ises described in the policy, but the rent firm. It was under his charge and subfor the same was paid out of the funds ject to his disposition, and to that exof M. J. Hardy & Co. tent had been intrusted to him. Ile did not hold or control or sell it for himself but for his principals, and that in the ordinary signification of the term was a trust. The referee refused to find as a matter of fact that the goods so destroyed or damaged by fire were held by the plaintiffs in trust for M. J. Hardy, or were held by the original plaintiff (W. J. II.), in trust at all, but found as conclusions of law 1. That the plaintiffs, at the time of the fire had no insurable interest in the goods upon the premises destroyed. 2. That the goods destroyed and damaged by fire as above stated, were not held by the plaintiffs in trust for M. J. II. & Co., or in trust at all, within the meaning of the policy of insurance. 3. That the complaint should be dis missed with costs. F. N. Bangs for applts. The plaintiff had an insurable interest. Crawford v. Hunter, 8 Tenn. W. E., 14; 5 Bos. and Pull, 268, 280, 294; Stilwell v. Stables, 19 N. Y., 401; 45 N. Y., 606. Instead of dismissing the complaint the learned referee should have held the plaintiffs were entitled to recover. Judgment reversed. New trial ordered. Costs to abide event. Opinion by Daniels J.; Davis, P. J. and Brady, J., concurring. ACCOMMODATION NOTE. The Grocers Bank, applt. v. Thomas Decided March 5, 1876. Where an accommodation note is given and used as a collateral and has not been diverted, the person holding it as collateral may recover against the makers. Held, That W. J. Hardy, the original plaintiff, was much more than a mere clerk. He was a general agent having the custody and control of his principals' property with full power to preserve and dispose of it in the way he deemed most appropriate to the prosperity and success of their business, and liable to account to them for it or its proceeds when called upon for that purpose. The care, management and sale of the property constituted his employment and to the extent of its continuance he was interested in its preserva- the report of a referee in favor of the tion. An entire or partial destruction defendants. An agreement to extend time on the original debt may be presumed from circumstances. Appeal from judgment entered on of the property would necessarily end This action was brought against the STRUCTION OF STATUTES. N. Y. COURT OF APPEALS. Harkens, applt., v. Mayor, &c, of New York, respts. makers and endorser of two promissory BOARD OF CANVASSERS. CONnotes. Judgment was taken by default against the endorser to whose order the notes were payable. The makers defended on the ground that the notes were accommodation notes, and that plaintiff's were not bona fide holders. The payee of the notes was liable, when these notes were given to plaintiffs, on another note as endorser, and being unable to pay it gave a check for what money he had deposited with plaintiffs, and procured these two accommodation notes, payable to his own order, and turned them over to plaintiffs. There was nothing said about an extension of time, and the bank did not surrender the first note, although they took no steps for its collection, and the debtor on the trial before the referee testified that at the time of turning these notes over he expected that the time would. be extended. Edward I. Blankman for applt. Decided January 25, 1876. The Board of County Canvassers of New York City are organized as a distinct board for special service, and not as town officers, and have the right to designate the papers in which their proceedings shall be published. The provisions of the Revised Statutes relating to publication of proceedings by County Canvassers (1 R. S., 133), is not in conflict with Chapter 875, statute only operates as a repeal by Laws of 1869. implication of a former one upon the same or a cognate subject to the extent that the two are repugnant; they will both stand to the extent they can be given effect. A This action was brought by plaintiff to recover charges for publishing in his newspaper the official statement and declaration of the board of canvassers of the city and county of New York, in relation to the election for judges of the court of appeals, in May, 1870, which was done in pursuance of a res Held, That as no diversion was shown, an extension of time was such a consideration as would enable plaintiffs to recover, and that an agreement to extend might be implied from circum-olution of the board of canvassers. stances and should have been so implied in this case. Judgment reversed and new triaordered. Opinion by Daniels, J.; Davis, P. J. concurring; Brady, J. concurring in the result. Brady, J. writes an opinion in which he holds that where an accommodation note is not diverted it is available in the hands of one holding it only as collateral security. At the trial the complaint was dismissed on the pleadings, on the ground that the general statute (11 R. S., Edwin's ed., 133, laws of 1847, chap. 240), authorizing the board of county canvassers to designate the newspaper in which to publish these statements had been repealed, as far as related to the county of New York, by the provision. of the act, chap. 875, laws of 1869, declaring that the mayor and comptroller shall, from time to time, designate six daily newspapers and six weeklies, but no more in which to publish the proceedings of the board of supervisors, |