Nazarkiewich for fifteen fully paid-up! shares in the company, of £250 each, four acceptances for £250 each of the company, dated the 26th of June, 1874, at thirty days, four months, six months, and nine months, respectively, and £190 in cash, "in part discharge of our claim of £6,000, and provided the above bills are paid at maturity, we agree to release our charge or interest in the book debts of Mr. Nazarkiewich."

Issue, and demurrer and joinder to the 7th and “th pleas.

At the trial before Denman, J., at the last Michaelmas Sittings in Middlesex, the facts above set out were proved, and a verdict for the plaintiffs was taken by consent for the damages in the declaration, with leave to the defendant to move to enter it for him, or to reduce the damages to such sum as the court might direct; the court to draw all necessary inferences of fact.

The defendant was chairman of the company, but he did not agree to the The demurrer was dropped, all the repurchase and transfer to the company points being considered upon the argument of the motion.

of Nazarkiewich's book debts.

The declaration in the first count set Held, We think the defendant is enout the agreement of the 20th of De-titled to judgment. It was argued that cember, 1873, between the plaintiffs and he was discharged as surety, and that Nazarkiewich, and the guarantee of the was made out by the facts.

defendant to the plaintiffs of the same
date, and averred that Nazarkiewich that another person is going to do some-
To say that a person becoming aware
had caused shares in the company to the
nominal value of £3,750 to be issued
to the plaintiffs, and that they had not
been redeemed.

thing, which, if done, will discharge
him from his contract, is therefore
bound to warn him of the consequences
of his doing it, is not a tenable propo

That brings it round to the
question whether, on the facts, what
has taken place has had the effect of
discharging the surety. Upon that it
has been established for a very long
time, beginning with Reese v. Berring-
ton, 2 Wh. & Tud. 4th ed. p. 974, and
downwards, that a surety is discharged
by giving time, upon the principle that
a creditor, whe, without his consent,
gives time to the debtor, deprives the
surety of his remedy, viz, to use the
name of the principal creditor to sue
the debtor. If that is suspended for a
day, or even an hour, although the sure-
ty is not injured, and possibly may even
have been benefitted, nevertheless it is
established that that discharges the
surety. Whether that is a just princi-
ple is a matter it is far too late now to

The defendant in his pleas traversed various allegations in the declaration, but the only pleas material to this report were the seventh, upon equitable grounds that the defendant was discharged by the agreement between the plaintiffs and Nazarkiewich for the transfer by the plaintiffs of their inter est in Nazarkiewich's book debts to the company--and the eighth, npon equi He grounds-that the defendant was discharged by the material variation without his knowledge of the terms of the agreement set out in the declara


The second count contained an addi-sition. tional averment that the plaintiffs, by the authority of the defendant, assign ed their interest in the book debts to the company.

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think about; but from the time of able to the order of one C. The draft Rees v. Berrington it has been unques was drawn for $27, and after its delivtioned, and has been said so many times ery to the payee it was fraudulently althat nothing but the legislature can tered to $2,750, and was afterwards make any alteration. Now in the pres- presented to and accepted by the plainent case it is not by giving time, but tiff. The forged draft was sent by one there has been an equal interference H., of Baltimore, to A. B. & Co., of with the rights of the surety. He had New York city, in a letter received by the right to have the book debts to look them, Aug. 16, 1869, asking for a sterto as his security; that right he has ling bill of exchange, at sixty days, on been deprived of by releasing the book London, for the amount of $2,750. A. debts by the wilful act of the plaint- B. & Co. deposited the draft on the day iffs. Taking it as it stands here, it it was received, in defendant's bank, seems to me the defence is made out, with other checks and drafts, and were and the defendant is entitled to judg- credited with the amount of it. The draft was presented to plaintiffs, who


Opinion by Blackburn, J.; Mellon accepted it, payable at the Leather and Quain, J.J., concurring. Manufacturer's Bank. It was presented there and certified, and was paid by said bank, through the clearing house, in regular course of business. A. B. & Co., on Aug. 16th, sent a bill of exchange on London. for the full value of


White et al, applts., v. The Conti- the draft, to H., by mail. Plaintiff's nental National Bank, respt.

Decided March 21, 1876.

The drawees of a bill of exchange are
only held to a knowledge of the sig
nature of the drawer; and in accept-
ing and paying a bill which has been
fraudulently raised after delivery to
the payee, they merely vouch for the
genuineness of the signature of the
drawer, and may recover back from
the holder whatever they may have
paid over the amount of the bill as
originally drawn.
The holder of such a raised bill is held
to a knowledge of his own title, and
of the endorsements of the bill prior

were not advised of drafts drawn upon
them by W., except by the presentation
thereof for payment, and they were
not notified of the alteration in the draft
until October 6th, when they gave no-
tice to defendant. The court, at the
trial, left it to the jury to say whether
defendant could have saved itself from
loss if it had known of the forgery on
the 17th of August, and charged that
if, by relying on the acceptance and
payment of the draft by plaintiffs,
the defendant has lost an opportunity
of protecting itself, it was entitled to a
verdict. The jury rendered a verdict

for the defendant.

to his. This action was brought to recover $2,750, and interest thereon, from Aug. 18, 1869, received by defendant upon a sight-draft, dated Aug. 9, 1869, drawn by one W., at Buffalo, on the plaintiff's upon other evidence of its right to the banking firm, in New York city, pay-money than the statement or actions of

Hamilton Odell, for applt.
Wm. Allen Butier, for respt.
Held, error; That defendant acted


plaintiffs; in dealing with the bill and Judgment of general term, aflirming its avails it acted upon the apparent judgment on verdict for defendant retitle and genuineness of the instru- versed, and new trial granted.

Opinion by Allen, J.

ment, and the responsibility of those from and through whom they received it; plaintiffs therefore owed no duty to defendant in respect to the former; and that plaintiffs owing no duty, and making no misrepresentations could not be chargeable with negligence which could defeat their right to reclaim the money paid, and there was no estoppel to bar this action. (3 Comst., 230; 40 N. Y., 391; Continental Nat., Bk. v. Nat Bk. of Comm., 50 N. Y., 575, distinguished.)

Plaintiffs, as drawers of the bill, were only held to a knowledge of the signature of their correspondents, the drawers; that by accepting and paying the bill they only vouched for the genuineness of such signatures, and were not held to a knowledge of a want of genuineness of any other part of the instrument, or of any other names appearing thereon; or of the title of the holder. (9. M. & W., 54; 46 N. Y., 77; 10 Wall., 604; 18 id.. 604; 4 Comst., 147.) That defendant is held to a knowledge of its own title, and the genuineness of


William Barker, admr., applt. v.
Newton W. Hoff, trustee, &c., respt.

Decided May 5, 1876.

Where an account stated is plead in defence to an action, and plaintiff avers that it was made at defendant's request to influence the action of another, but without effect, and that the accounts were in fact still open, it should go to the jury as to whether the account was in fact still open.

Appeal from judgment dismissing the complaint at special term.

Plaintiff's intestate, Smith Barker, had for some years been executor and trustee of one John Peutz. In June, 1872, said Smith Barker died, leaving the estate of Peutz largely indebted to him for moneys expended in its behalf, commissions, &c. Subsequently defendant was appointed trustee of said estate.

This action is brought to recover said

the indorsements, and of every other indebtedness. The answer, by way of part of the bill other than the signature defence sets up an account stated, signof the drawers within the general prin- ed by plaintiff, as administrator, &c., of ciple which makes every party to a prom- the Peutz estate. Plaintiff replies that issory note or bill of exchange a guar-after the death of the intestate, and beantor of the genuineness of every pre-fore the appointment of another trustee, ceding indorsement, and of the genu- the account was prepared at the request ineness of the instrument. (15 N. Y., and with the assistance of defendant, 575; 40 Id., 456; Story on Notes, who dictated the same. That defend135, 379-381.) The presentation of ant prepared it for the purpose of inthe bill, and the demand and receipt of ducing one Townsend to qualify as the money thereon were equivalent to trustee of Peutz's estate, as Townsend an indorsement. The drawees had a had refused to qualify until he knew right to act upon the presumptive own ership of the defendant as the apparent

how the accounts between the two es


tates stood. That as an inducement for


his signing it, the defendant had promised that there should be a full accounting, so soon as a trustee should be appointed. Townsend eventually refused to qualify, and defendant was appointed trustee instead.

At the trial the complaint was dismissed, and judgment rendered for the defendant on the pleadings.

Rowan & Hehn, for applt.
George Hill, for respt.
On appeal

Held, That the account appears to have been made in accordance with defendant's wish, in order to induce Mr. Townsend to qualify. This object being known, it was wrong in plaintiff to have assented, but yet, in fact, it did no wrong to Mr. Townsend, because he did not qualify.

Plaintiff does not seek any benefit from the arrangement, made in reference to Mr. Townsend, or to urge any claim or demand which was not reserved between him and defendant when that arrangement was made. His claim, if it really exists, is in nowise connected with, nor does it grow out of this arrangement, and therefore the maxim, tiff.

"That where one of two wrongdoers The cause was tried at the circuit seeks an advantage from the unlawful court, and resulted in a verdict for the combination, the defendant is in the plaintiff. better position," does not apply.

The issue presented, as to whether in fact, the accounts are still open, should have been tried. Defendant was not entitled to judgment on the pleadings.

Judgment reversed.

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

The Second National Bank of Leay

enworth v. Samuel Smoot and others. Decided January, 1876.

A promissory note, actually made and
signed in the city of Washington,
but dated at Leavenworth, in the
State of Kansas, and sent to the Sec-
ond National Bank of Leaven-
worth, and by it discounted, is to be
governed as respects a question of
usury by the laws of Kansas.
To take out interest in advance on dis-
counting a note by a bank is not usu-

A contract for a loan of money at a rate of interest which is legal in the place where the contract is made, though the money is to be repaid in a State where the rate of interest is lower, is not usurious, provided it be not a mere device to evade the laws of the State where the money is to be repaid.

The action in this case was brought by plaintiff as holder of a promissory note made by the defendants, Smoot and Pomeroy, bearing date on the 27th of November, 1873, for $7,000, which note was made payable to the order of the defendant, Darling, at the Second National Bank, Leavenworth, Kansas, with 12 per cent. interest until paid. This note thus made and endorsed was transferred by indorsement to the plain

Sometime before 1873, Smoot, one of the defendants, obtained a loan from the plaintiff. (Second National Bank, Leavenworth, Kansas,) of $20,000. ·

This loan of $20,000 from the bank was secured by the promissory notes of Smoot and Pomeroy,

These notes were given, one for $8,000, one for $7,000 and one for $5,000, were made payable on time, executed and sent from Washington, D. C., to the bank in Kansas; and the bank paid to the defendant, Smoot, the proceeds

of these notes, less the discount for the time they had to run, at the rate of 12 per cent. per annum; the rate of interest agreed upon in the notes was 12 per cent. per annum after the maturity of the notes until paid. Twelve per cent. per annum being the highest rate of interest allowed by law to be taken for 3. That some one or more of the rethe loan of money in the State of Kan-newal notes were made payable in the sas. These notes not being paid at ma-city of New York, in which State the turity, some or all of them, new notes law allowed, upon contracts made by were given in renewal, and the new its citizens to be performed within the notes secured the payment of the State, a rate of interest not to exceed amount due, including principal and 7 per cent. per annum. interest, at the rate above mentioned.

The plea interposed was the general issue. Under that issue was attempted to be tried whether, if the loan was not usurious in its inception, it did not become so by the arrangements that were made on the renewal of the various notes that were given.

much less per annum than the rate allowed by the law of Kansas.

Thus went on the dealings between Smoot and the bank until all of the loan of $20,000, and interest thereon was paid, except a note for $7,000, dated the 27th of November, 1873, payable 90 days after date at the bank discounting a note without regard to

Held, No valid contract was made. for this loan of $20,000, until the notes offered as a security for its payment were accepted by the plaintiff, and the money advanced upon them.

To take out interest in advance, is

in Kansas, made by Smoot and Pomeroy and indorsed by the other defendant, Darling, upon which note this suit is brought.

the rules of rebate or discount, and there is no distinction between bankers and others.

2. That by the arrangement entered into by which the discount was taken out of the proceeds of these notes, whether of original or renewals, the contract was usurious.


1. That the notes given to secure the original loan of $20,000, being actually made and signed in this city and sent to Bank of Leavenworth, and by it discounted, it was a contract made in

That a contract for a loan of money at a rate or interest which is legal in a State where the contract is made and where the loan is to be advanced, though the money is to be repaid in a State where the rate of interest is lower, is not usurious, provided it be not a mere device to evade the

The defense relied mainly on three laws of the State where the money is

to be repaid.

The judgment of the court below must be affirmed with costs.

Opinion by Olen, J.


Washington, and not in Kansas, and N. Y. SUPREME COURT. GENERAL TERM, that the law upon the subject of usury in this District must govern this contract of loan, instead of the usury laws of Kansas, the rate of interest author ized to be contracted to be paid being


Alexander et al., applts. v. Fowler,


Decided May 5, 1876.

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