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
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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