note endorsed by such citizen, in the United gagor to procure the necessary mortgage search.
States Courts for that district. The Commercial Houseman v. The Girard Mutual Bldg. and Loan
Bank of Cleveland v. Simmons et al.
97 Ass.
Under sec. 5198 of the U. S. R. S. relating to
penalties against national banks for receiving a
greater rate of interest than is allowed by law,
no recovery can be had beyond twice the sum of
the interest paid in excess of the legal rate.
Hinaermistsr v. The First National Bank of
Chittenango.
173
The restriction in section 57 of Act of Con-
gress of 1864, as amended by section 2, chapter
269 of laws of Congress, 1873 (3d session), as to
issuing attachment, execution or injunction, be-
fore final judgment against national banks, does
not relate to such banks as are located in other
States than that in which the suit is brought,
but to those that are within such State South-
wick v. First National Bank of Memphis.
firing plaintiff's woodland, whether or not the
In an action against a railroad for negligently
fendant's negligence, is a question for the jury.
injury was the direct natural consequence of de-
Pennsylvania R.R. Co. v. Hope.
Where a person approaches a railroad cross-
ing it is his duty, before crossing to take the
precaution to look both ways to see and ascer-
tain whether or not a train is approaching, and
his failure to do so is negligence. Stockus v. The
N. Y. C. & H. R. R.R. Co.
401
The owner of an implement or piece of ma-
chinery may lawfully allow another to take and
use it, and if in using it becomes defective and
causes injury to a third person, the owner is not
liable. King v. The N. Y. C. & H. R. R. R. Co.
As to exemplary damages in case of, see
DAMAGES-
See also PRACTICE; NEGOTIABLE PAPER.
NEGOTIABLE PAPER.
Negotiable paper issued in such condition as
to be easily susceptible of alteration amounting
to a forgery, will be enforced in the hands of a
bona fide holder. Brown v. Rced.
35
But where an instrument not purporting to be
negotiable paper, but capable of being readily
altered, without detection into such, is signed,
whether or not the party signing was guilty of
negligence, is a question of fact for the jury. Ib
A party taking a note as collateral security for
a precedent debt, without making any advances
or giving any new credit thereon, is not a bona
fide holder. First National Bank of Clarion v.
Gregg.
A general promise for a valuable consideration
to pay all the debts of another, if it inures to the
benefit of the promisee's creditors, applies only
to those who were such at the time the promise
was made, and any one thereafter taking the
promisee's outstanding note by endorsement
from a then creditor, takes it subject to all equi
Payments of negotiable paper before it is due,
and in the absence of such paper, are not made
in due course of business, and the party so pay-
ing should be held to do so at his own risk.
Therefore, the maker of negotiable paper is not
discharged, if before the maturity of the paper,
and after its transfer, even as collateral security,
he makes payment to any person other than the
real holder. Gosling v. Griffin.
A check for twenty dollars, drawn on the
First National Bank of Houston, was fraudu-
lently altered and raised by the payee to two
thousand dollars. It was purchased of him by
J. & Co., who endorsed it to their agents, the
It is not competent for the maker of a prom- City Bank of Houston, who presented it to the
issory note to set up, as a defence to a suit by First National Bank, and it was by said bank
an endorsee for value after maturity, any equi- pronounced good. In the usual. course of busi
ness it was taken up by the First National Bank
ties existing between the maker and an inter
mediate endorsee, not connected with the trans- in the exchange of checks after bank hours.
action between the original parties. Young et The City Bank thereupon gave J. & Co. credit
210 for the amount. The forgery was not discovered
al. v. Shriner.
until the next month, on the balancing of the
accounts between the banks.
The bona fide holder of negotiable paper can
recover without regard to any fraud in its incep-
tion. Roberts v. Lane.
Where an agent acts in making or endorsing
negotiable instruments within the scope of his
general authority, the fact that he has abused or
perverted it in the particular instance, consti-
tutes no particular defense against a bona fide
holder for value. White's Bank of Buffalo v.
Getz.
This presumption may be repelled by evi-
Ib.
An endorsee of a note, who takes it as collat-
eral security for a debt, created at the time,
An endorser will become liable upon his en- with no notice of any equities between the origi
nal parties, and relying on the note for security,
is a bona fide holder for value. Logan v. Smith
et al.
509
The time when a note should have its incep-
tion is a question of fact for the jury under all the
facts. Sweet v. Chapman.
513
In an action on a note given by an intestate
just before his death, mere inadequacy of con-
sideration, except as a circumstance bearing
upon the question of fraud or undue influence,
is not a defence to the note. Earl v. Peck, admr.
527
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Only those persons can be sued on an inden-
ture, who are named as parties thereto. Briggs
et al. v. Partridge et al.
371
A plaintiff has a sufficient interest to sustain
an action upon several promissory notes en-
dorsed to him for the purpose of collection, such
endorsements being made upon the understand-
ing that plaintiff would collect the notes if pos-
sible, and then account to the respective endors
ers for the proceeds of the notes over and above
their respective shares of plaintiff's expenses,
and the expenses of collection. Devol v. Barnes.
384
The Board of Health is the successor of the
City Inspector, and as such has control of all
existing contracts made by hím. Bell v. The
Mayor, &c., of New York.
511
By section 5, act of 1874, the Board is made a
necessary party in any action where any of its
proceedings are called in question.
An estate in fee, not subject to any life estate,
though subject to the possession of trustees for
the purpose of executing certain trusts, is a suffi-
cient possession to uphold an action for parti-
tion. Chapman et al. v. Cowenhoven impld. 365
A receiver appointed under supplementary
proceedings may maintain an action for the par-
tition of real estate in which the judgment
debtor is interested as a tenant in common.
Powelson, recr. v. Reeve et al.
375
But the action being an equitable one, the
court will order its discontinuance upon the pay-
ment of the judgment under which the receiver
was appointed, together with his costs, fees and
expenses as receiver.
combined forces or processes, from that given by
their separate parts. There must be a new re-
sult produced by their union.
lb.
Where a license has been given by one or
more of several owners in common of letters
patent, the remedy of the others is by action
for an account for whatever has been received.
De Witt v. Elmira Nobles Mfg. Co.
589
As to sale of void patent, see CONSIDERATION.
As to jurisdiction of State and Federal Courts
One partner has no right, unless specifically in actions on patents, see JURISDICTION.
authorized, to retain an attorney to appear in an
action for his copartners in a suit brought
against all the copartners. Lyles et al v. Hagy
el al.
287
Where partners have settled and liquidated
their accounts, Courts of Equity will not open
them except upon clearly proved allegations of
fraud or mistake. Augsbury v. Flower. 359
A partner to whom the partnership is indebted
can have no satisfaction except out of what re-
mains after the partnership debts are paid.
Estate of Gordon.
438
Where firm holds all earnings in common, it
is enough interested in a contract of third party
with a member of said firm, to bring an action
in the firm name to enforce said contract.
Tracy et al v. Watson.
A voluntary payment cannot be recovered.
Fear of the result of an arbitration is not
duress, and cannot affect the fact of its being
made voluntarily. Quincey v. White.
Whether a payment is voluntary or not is a
question of law. Scholey, exr. v. Mumford, exr.
294
Where illegal fees are demanded and paid as
a condition of giving up certain property, such
payment is not voluntary.
1b.
In the absence of appropriation by the par-
ties, the law applies payments first to the in-
terest, and then to the principal of the debt.
Moore v. Kiff et al.
Where a debt is payable in a commodity, a
failure to make or offer such payment fixes a
liability to pay in money.
A party who pays money in his hands to A.,
who claims the same, after notice by B. that
such money is the property of B., does so at his
peril. Phillips v. Pace.
350
Where one of several partners dies, and the
partnership is in debt, and the surviving part-
hers continue their dealings with a particular
creditor, and the latter joins the transactions of
the old and new firms in one entire account,
payments made from time to time by the sur-
viving partners must be applied to the old debt.
407
Hooper et al v. Keay et al.
The pecuniary ability of the defendant does
not raise a presumption of payment. Alexan-
der, exr. v. Dutcher.
415
A general deposit of money in a bank will
not operate as payment of a note held by the
bank, and which has been protested, without
specific instructions that it be so applied. Na-
tional Bank of Newburgh v. Smith.
A negotiable note given for assessment on a
premium note is payment of the same, if so in-
tended by the parties at the time, and the agent
in taking it binds the company by his act.
Lycoming Mutual Fire Ins. Co. v. Bedford. 444
An extra-judiciai oath is no ground for indict-
ment for perjury. VanDusen v. The People. 90
The Fire Marshal of the City of New York
has power to administer an oath upon an in-
quiry into the cause or circumstances of a fire,
without first having a complaint under oath
made before him. Harris v. The People. 108
On the trial of an indictment for perjury,
which charged the prisoner with having sworn
falsely that he had lost 60,000 cigars by the
fire, and the proof showed that he swore to
having lost 65,000, the variance is immaterial,
and it cannot be raised on appeal.
Ib.
PERSONAL PROPERTY.
Where a conflict arises between the laws of
two States as to the distribution of personal
property, the law of the State where the prop-
erty is situated must control. Rice, exr., &c.,
v. Harbeson et al.
49
The judgment of another State affecting the
distribution of the personal property of a de-
ceased citizen of this State, is of no effect as
against the decree of a court of this State. Ib.
As to effect of attaching to real estate, see
FIXTURES.
Denial of knowledge or information sufficient
to form a belief, in answering affidavit, is insuffi-
cient to put in issue positive allegations in the
affidavit of applicant for writ of mandamus.
The People ex rel. Carlton v. Board of Asses-
tee of the corporation for neglect to make and
publish the report required by law, cannot be
281
joined. Wiles et al. v. Suydam.
The fact that the allegations as to both
grounds were mingled in one count, does not
deprive defendant of the right to demur. Ib.
Where defendant believes in good faith that
he is concluded from pleading a certain defense,
and therefore omits it in his answer, but after-
wards and before trial learns that the disability
aɛ to the particular defense is removed, he
should be allowed to amend his answer, and to
set up this defense. Seaver, collector. v. The
Mayor, &c., of N. Y.
In an action arising out of an alleged breach
of covenant of seizin in a summons for money
demand under subdivision 1 sec. 129 of the code,
is not proper; it should be under subdivision 2.
423
Strong v. Dana.
An allegation in the answer that the right of
action is in a receiver named, and not in plain-
tiff, is a proper defence, and not demurrable.
Under this defendant may prove appointment of
receiver, and all facts necessary to establish his
title. Townsend v. Norris.
433
General averments of time refer to the com-
mencement of the action.
lb.
The court has authority to appoint a trustee
of real estate in place of a deceased trustee, and
an allegation that he was duly appointed by an
order of the court is sufficient. Hoff, trustee, v,
Pentz.
As to pleadings in actions by executors, see
In a suit against the maker of a promissory EXECUTORS AND ADMINISTRATORS.
note, it is not sufficient to allege that plaintiff
had "settled with" the payee, without alleging
274
payment. Bank v. Berger.
In an action for damages for fraud committed
by means of representations, falsely stating the
state of defendant's knowledge, it should be so
alleged specifically in the complaint to raise
such an issue on the trial. Marshall v. Fowler
et al.
In an action against a stockholder to recover
the amount of a judgment against an insolvent
corporation, on ground of failure to pay in his
stock, and because no certificate of the payment
of capital stock had been filed, a cause of action,
seeking to recover against defendant as a trus-
As to pleadings in actions for fraud, see
FRAUDS.
As to amendments of pleadings, see PRAC-
As to pleadings in actions where a receiver is
a party, see RECEIVERS.
For rules of pleading in various special pro-
ceedings, see their titles, such as BANKRUPTCY,
&c.
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