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dents with the amount thereof; that to be seriously contended that the by the negligence of the plaintiff, in Texas Banking and Insurance Comfailing to inform defendant that the pany was guilty of any negligence in check was raised, all remedy against the manner of drawing the genuine Wallace had been lost, and that by check No. 364, though there is some this negligence, and by its acceptance, evidence in regard to the utility of a plaintiff was estopped. It was also perforating instrument in preventing alleged that the drawer of the check the successful alteration of checks. had been guilty of a negligence in fail- There was a verdict and judgment ing to use a perforating instrument, for the plaintiff, from which the dethen used by bankers. fendant appealed.

There was no evidence that the Held, The general rule is that interchange of monthly accounts was money paid under a mistake of fact may be recovered back, and that, too, although the party may have had the means of knowledge.

adopted for the purpose of detecting forgeries or alterations, or that there was any custom of bankers to refer to such accounts before paying the checks of their correspondents, though one witness said as a matter of prudence he would do so.

Everett, a member of the firm of C. R. Johns & Co., testified that they were first advised of the check being raised by letter from the cashier of the City Bank on April 11; that he at once commenced search for Wallace, but did not find him. Had he been promptly advised of the forgery, thinks he could have overtaken or found Wallace. If he had been telegraphed ahead twenty-four hours, don't think Wallace could have got out of the State without his catching him; con siders his recovery from Wallace entirely lost.

On general principles mere negligence in making the mistake is not sufficient to preclude the party making it from demanding its correction. Such negligence does not give to the party receiving the payment the right to retain what was not his due, unless he has been misled or prejudiced by the mistake. If the loss had been incurre and become complete before the payment, he should not in justice be permitted to avail himself of the mistake of the other party to shift the loss upon the latter.

In this case it is evident that the loss had been incurred by Johns & Co. when they purchased the raised check from an irresponsible party. The subsequent mistake of the plaintiff, in There is no other evidence whatever, paying this altered check to the deas to damage resulting from the delay fendant, the agent of Johns & Co., to discover and give notice of the for- should not serve to shift the loss, unless gery, unless it be the statement of the the defendant or Johns & Co. had been cashier of Johns & Co., that he paid damaged in some way by the laches of Wallace $2,000 for the check; that plaintiff, or unless there is some rule of Wallace was introduced by a person law prohibiting the latter from setting whom he believed responsible; thought up the mistake. hey would have recourse on him; but did not know that the money could be made out of him. It does not appear

If the forgery had been in the signature of its correspondent, it is well settled that there is a rule of law for

bidding the bank from setting up such a mistake. In such a case the mistake is covered by a failure on the part of the bank to fulfil its acknowledged duty -that is, to know the signature of its correspondent or customer.

But it is now also settled that this rule does not apply to altered or raised checks; as to which the acceptor or drawer is not presumed to be better able than the endorser to detect the alteration.

It

the will, and before the attestation clauses, in a blank in the last clause of the will appointing the executor, the signature will be regarded as a signing at the end of the will, according to the provisions of the statute.

Appeal from a decree of the surrorogate of New York county, refusing to admit to probate a paper alleged to be the last will and testament of John Kelly. The alleged will presented for probate was partly written and partly If the plaintiff is estopped in this printed. The last sentence, or clause case, it is not because of any rule of the will, before the attestation peculiar to the mercantile law, but clause, read as follows: "Likewise I because the facts bring the case within make, constitute, and appoint Edward the general principles of estoppel. McCarthy to be executor. J. Kelly, of is true there are early authorities which this my last will and testament, hereby hold a party paying a forged draft to revoking all former wills by me made." great dilligence in giving notice. The The will had no other subscription by modern doctrine is believed to be, that alleged testator, John Kelly, except in as against one who passes a forged bill a blank in the printed clause, after the or check, and especially in favor of a attestation clause, which clause made a drawee who pays to such party on the declaration of facts, intended to show faith of his endorsement, and in so the proper execution of the will, and doing violates no obligation or duty, began as follows: "Subscribed by reasonable dilligence is all that can be John Kelly, the testator named in the required, and when that is exercised foregoing will, &c." and no damage has resulted from the delay, the right to recover is not lost. Judgment affirmed. Opinion by Gould J.

WILLS. ATTESTATION OF.
N. Y. SUPREME COURT, GENERAL TERM

FIRST DEPARTMENT.

The Sisters of Charity of St. Vincent de Paul, applts, v. Mary Kelly, Ann Malony, and Margaret Doolan, respts. Decided May 5th, 1876.

From the evidence taken before the surrogate, it appeared that the testator said to the witnesses, taking a paper from his pocket, I have drawn a will, or, I have made my will, and I want you to witness it. The second signature of the testator, John Kelly, in the blank between the words "subscribed" by and "the testator" was made after the attesting witnesses had signed their names to the will, and was thus made after, and not before, he had pronounc ed the will to be his, and after he had requested the persons present to witness it. The first signature, J. Kelly, was

The attestation clauses to a uill in the precise form provided by statute, are not essential prerequisites to its validity, nor is the clause declaring the on the will when the witnesses were reselection of the executor. Where the signature of the testator quested to sign the paper. The quesoccurs after the disposing clause in tion presented on the appeal was,

whether the will was signed at the end within the meaning of the statute regulating the execution and attestation of wills. (2 R. S., 63, Part 2, chap. vi., art. 3, § 40.)

James A. Deering, for applt. Otto Horwitz, for respt. Held, That if the name of J. Kelly can be regarded as at the end, then the requisition of the statute is complied with. The object to be accomplished by the statute was to prevent any interpolation, or change, or addition, to the testamentary part of it. Such a formality was not required at common law. Tonnella v. Hall, 4 Coms., 145, per Jewett; 1 Jannan on Wills, Perkins' ed., 114, and notes.)

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The policy was issued by the general The attestation clauses in the precise agent of defendants, one Stocker, and form provided by statute are not essen- delivered to the deceased, who resided tial pre-requisites (Conboy v. Jennings, at Watkins, in February, and remained 1 Sup: Ct. Repts., 622; nor is the clause in his possession until his death, April declaring the selection of the executor. 27, following. It was delivered to him The law supples theiomission of the to examine, to determine whether he testator to name his executor by ap- would take it. No premium was paid pointing one with the will annexed. then. One Stone, an agent of defendThe signature J. Kelly was in-ant, gave to C., in April, verbal, and tended to be that of the testator to his afterwards, and after April 18, written will, and his intention should not be authority to solicit applications in cerfrustrated by the accidental selection of tain towns other than Watkins. C., a locality to sign it, which, though with- knowing the insured to be dangerously in the spirit is not expressly within the sick, requested H. to get the premium letter of the statute. (In the goods of of the insured. H. did so, and gave it Woodby, 3 Law. Tr., 429.) to C., April 17. C. wrote to Stocker, who refused to receive the premium, and the defendant, on being notified, also refused. The premium was returned to the plaintiff in this action, for whose benefit the policy was issued. May 6, C. testified on the trial that he was not agent for the defendant for Watkins, nor was he such in suggesting

The disposing clauses of the will all occurred before the signature J. Kelly, and what occurs after might be rejected as surplussage. The decree of the surrogate should therefore be reversed, the will admitted to probate, and letters testamentary issued to the executor named.

Opinion by Brady, J.; Davis, P. J., to H. that the premium be paid. and Daniels, J., concurring.

McGuire, for pltff.

Hill, for deft.

Held, That authority to an agent to

solicit applications for an insurance did to other parties, and endorsed by them

not give him authority to collect premiums; at any rate not on policies not issued through him. He was a mere volunteer, and C. being unauthorized to receive the premium, the defendant was entitled to a reasonable time to repudiate his acts, even though the death of the insured intervened. Where a payment depends for its validity on subse quent acts ratifying it, it is for the plaintiff to show such ratification. The principal should notify the unauthorized agent of his dissent, but need not notify the third party. Even if he ought to notify the third party, the insured, he ought to have a reasonable time to do so. If the agent was unauthorized, the principal need not tender back the money.

New trial ordered, costs to abide the

event.

Opinion by Learned, P. J.; Bockes and Boardman, J.J., concurring.

PARTY IN INTEREST.
N. Y. SUPREME COURT. GENERAL TERM
FIRST DEPARTMENT.

Horatio N. Devol, plaintiff, v. David
Barnes, deft.

Decided May 5, 1876.

to the plaintiff before suit. They were endorsed and delivered to the plaintiff under an arrangement, in substance, that he should go from New Albany, Indiana, to the city of New York and collect the notes if possible, and then account to the respective endorsers for the proceeds of the notes, over and above their respective shares of plaintiff's expenses and the expenses of collection.

The obvious intention of the owners of the notes was to put them into the hands of the plaintiff, so that he could bring a single action in his own name upon them all, and after collection deduct a pro rata share of his expenses in coming to New York and of the expenses attending the collection from the proceeds of each note, and pay over the residue to the endorsers.

The only question in the case was whether this made plaintiff a party interested, so that he could maintain an action on the notes in his own name. Wm. Man, for respt.

George II. Foster for aplt.

Held, The legal title of the claim A plaintiff has a sufficient interest to sued upon is very clearly vested in the sustain an action upon several promis plaintiff. He could receive payments, sory notes endorsed to him for the purpose of collection, such endorse- give receipts, discharge the indebtedments being made upon the under-ness, and in the proceeds he would have standing that plaintiff would collect a personal interest, as he was only the notes if possible, and then ac- bound to account for an uncertain balcount to the respective endorsers for ance after deducting his expenses and the proceeds of the notes over and the costs of proceedings for the collecabove their respective shares of plain- tion. We think plaintiff had sufficient tiff's expenses, and the expenses of collection. interest to maintain this action, and that this case comes within the principle of Allen v. Brown, 44 N. Y., 228; Eaton v. Alger, 47 N. Y., 345.

Appeal from judgment entered on verdict for plaintiff.

This action was brought upon a draft and several notes. In respect to the draft, no defence was made at the trial. The several notes were originally made

Judgment should be affirmed.

Opinion by Davis, P. J.; Brady and Daniels, J. J. concurring.

NEW YORK WEEKLY DIGEST.

[No. 17.

agreed between them that that amount should be liquidated in the following manner: £2,400 was to be paid by Naz

VOL. 2.] MONDAY JUNE 5, 1876. PRINCIPAL AND SURETY. RE- arkiewich to the plaintiffs on or before LEASE OF SURETY BY SUR- the 15th of February, 1874; and RENDERING COLLATERALS. £6,000 was to be paid in fully paid up shares, or share warrants in "E. NazarENGLISH HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION. kiewich & Co." within three days af ter the first allotment of shares in that company, which Nazarkiewich was to redeem within twelve calendar

Polak v. Everett.

Decided February 10, 1876.

The fact that a surety stands by and months from the first of January, 1874; sees the holder of his obligation do something, which will discharge him

and the redemption was to be guaran

from his contract, without declaring teed by the defendant.

that he shall consider himself dis- It was also agreed that the book charged if the act is done, does not debts of Nazarkiewich should be colestop him from setting up and relying lected by one Vispe, on behalf of upon such act as a discharge. He is not bound to warn the parties of the Messrs. Tampier, of Bordeaux, and the consequences of the alteration of the plaintiffs, to be divided equally between them as collected; the amount paid to the plaintiff's being applied towards redemption of the £6,000 of shares.

contract.

Any intentional act which materially changes the contract without the sure

ty's consent will discharge him, whether it was for his benefit or not, and even though he might have sustained only nominal damages. A surety is discharged by the credit or releasing a security in his hands for the principal debt, though it does not go to cover the whole of that debt, and the creditor allows the surety the whole value of the security.

This was an action on a guarantee entered into under the following circum

stances:

The plaintiffs are wine merchants carrying on business in the city of London, and the defendant is a discount broker in business in the same city.

On the same day the defendant signed a written guarantee to the plaintiffs for the fulfillment by Nazarkiewich of the above agreement "so far only as concerns the full redemption of the shares and share-warrants therein men tioned of the value of £6,000 on or before the 1st day of January, 1875."

The first allotment of shares in E. Nazarkiewich & Co. took place on the 18th of February, 1874, but the £6,000 worth of shares was not transferred by Nazarkiewich to the plaintiff's within three days after that event.

In May and June, 1874, negotiations were carried on between the plaintiff's,

In 1873, one Etienne Nazarkiewich had arranged to dispose of his business Nazarkiewich, and a Mr. Asser, one of as a wine merchant to a limited liability company, to be called E. Nazarkiewich & Co. (Limited.)

At that time he was indebted to the plaintiff's in the sum of £8,400; and on the 20th of December, 1873, it was

the directors of E. Nazarkiewich & Co., for the repurchase by Nazarkiewich of the plaintiff's share of his book debts, and the transfer of them by him over to the company, and on the 1st of July, 1874, the plaintiff's gave a receipt to

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