preference within the meaning of the Bankruptcy Act. (Anderson v. Stayton State Bank, 357.) Bankruptcy-Preference-Judgment-Time. 8. In an action by a trustee in bankruptcy to set aside an alleged preference, the suffering of a judgment to be entered within four months before the filing of the petition in bankruptcy was established by showing that all the proceedings from the commencement of the judgment creditor's action to the entry of its judgment, including the issuance and return of the execution and the enforced payment of the judgment, occurred within four months before the filing of the petition. (Anderson v. Stayton State Bank, 357.) Bankruptcy-Preference Class Notes. 9. Claims against a partnership and claims against one of the partners were not in the same class as the notes signed by such partner and the other partner in their individual names in adjustment of a claim against the partnership, in respect to a preference alleged to have been obtained by the holder of such notes. (Anderson v. Stayton State Bank, 357.) Bankruptcy-Partnership Joint and Several Notes Claim. 10. The holder of joint and several notes executed by the individuals composing a partnership in the adjustment of a partnership debt might share with claims against the partnership in bankruptcy and at the same time participate in dividends upon claims against the individuals, on the theory that the notes represented a firm indebtedness and at the same time a primary individual obligation. (Anderson v. Stayton State Bank, 357.) Bankruptcy-Individual and Partnership Liabilities-Class. 11. Such holder would be obliged to share with creditors of the same class holding claims against one of the individual partners, but could compel the payment of its notes in full before any dividends were paid out of the individual estate on pure partnership debts, even though there were no firm assets; the course to be pursued being regulated by Bankruptcy Act, Section 5f (U. S. Comp. Stats. 1913, § 9589), declaring that the net proceeds of partnership property shall be appropriated to the payment of the partnership debts and the net proceeds of the individual estate of each partner to the payment of his individual debts, and that the surplus of the property of any partner after paying his individual debts should be added to the partnership assets and applied to partnership debts, and the surplus of partnership property, after payment of debts, shall be added to the assets of the individual partners. (Anderson v. Stayton State Bank, 357.) Bankruptcy-Claims-Class. 12. In bankruptcy a pure partnership creditor is not in the same class as a creditor holding a claim against an individual member of the partnership. (Anderson v. Stayton State Bank, 357.) Bankruptcy Claims Preference "Class." 13. Under Bankruptcy Act, Sections 60a, 60b, as amended, relating to preferences as between creditors of the same class, the term "class" defines those creditors who are entitled to receive out of the bankrupt estate the same percentage of their claims, however much they may have the right to collect from others than the bankrupt, so that in the bankruptcy proceeding of a partnership and both of its members, joint notes signed by the partnership and by each of the partners in the order named, and joint and several notes signed by the partners in adjustment of a partnership debt, belonged to the fourth class of creditors of a partner entitled to the same percentage of dividends, and the enforcement of a judgment on the joint and several notes would work a preference and entitle the trustee to recover from such creditor the amount received on the judgment. (Anderson v. Stayton State Bank, 357.) BANKS AND BANKING. Banks and Banking-National Bank Examiner-Official of Bank. 1. A national bank examiner is not an agent or officer of a bank which he examines. (Doerstler v. First Nat. Bank, 92.) Banks and Banking-Liability of Bank for Acts of Officers. 2. While a depositor in a national bank is presumed to know that the bank is without authority to lend his funds for his benefit as an individual, the president of a national bank, having made representations to an uneducated depositor that his deposit could be lent so as to be called within 30 days yet bring a fair rate of interest, cannot, the depositor understanding that the president was acting for the bank, make loans of the depositor's funds without rendering the bank liable. (Doerstler v. First Nat. Bank, 92.) BILLS AND NOTES. Bills and Notes-Indorsement-Rights of Holders. 1. The perpetration of fraud will not alone defeat the holder of a negotiable instrument, but it must be supplemented by a notice to the holder. (Everding & Farrell v. Toft, 1.) Bills and Notes-Indorsement "Holder in Due Course." 2. Under Section 5885, L. O. L., defining a holder in due course, a person is not a holder in due course if he does not take the note in good faith without notice of any infirmity in the instrument or affecting the title of the person negotiating it. (Everding & Farrell v. Toft, 1.) Bills and Notes-Indorsement-Notice of Defects. 3. A person who takes a note has notice of an infirmity in the instrument or defect in the title if he had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. (Everding & Farrell v. Toft, 1.) Bills and Notes-Indorsement-Bad Faith of Indorsee-"Negligence" -"Bad Faith." 4. While negligence is not synonymous with bad faith, yet where a person takes a note under suspicious circumstances and, having means of knowledge, willfully abstains from making inquiries, his intentional ignorance may result in bad faith. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions Questions for Jury. 5. The question of good or bad faith of the holder of a note is peculiarly for the jury and not for the court, especially when the burden rests on the holder to show that he became the holder in due course. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions-Burden of Proof. 6. Under Section 5892, L. O. L., providing that when it is shown that the title of any person who has negotiated an instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired title as a holder in due course; when a note had its origin in fraud, the burden is on the owner to prove that he or some person under whom he claims was a holder in due course. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions-Admissibility of Evidence. 7. In an action by an indorsee on a note for $5,000, evidence that the plaintiff acquired the note for $4,000 is admissible, especially in connection with information received by plaintiff as to one indorser and inquiries made or omitted concerning other indorsers and the maker, as bearing on the question whether the holder was chargeable with bad faith. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions-Admissibility of Evidence. 8. A person may resort to circumstantial evidence to show that the owner of a negotiable instrument is not a holder in due course. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions-Question for Jury. 9. In an action by an indorsee on a note, evidence held to present a question for the jury as to the good faith of the plaintiff. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions-Issues and Proof. 10. Where a complaint on a note charges a defendant with being an indorser in due course of business, he cannot be held liable as a maker or guarantor. (Everding & Farrell v. Toft, 1.) Bills and Notes Liabilities of Parties "Primarily Liable”—“Secondarily Liable.” 11. Under Section 6023, L. O. L., providing that the person who by the terms of an instrument is absolutely required to pay is primarily liable and all other parties are secondarily liable, the maker of a note is primarily liable while the indorser is secondarily liable. (Everding & Farrell v. Toft, 1.) Bills and Notes-Indorsement-"Discharge" of Indorser. 12. Section 5953, subdivision 3, L. O. L., declaring that a person secondarily liable on an instrument is discharged by discharge of a prior party, applies only to a discharge by act of the creditor, and does not include discharges by operation of law, nor where, after a trial on the merits, the note is destroyed because of a vice inherent in the transaction. (Everding & Farrell v. Toft, 1.) Bills and Notes-Actions-Instructions. 13. Where, after a trial on the merits, it is determined that because of fraud and notice there is no subsisting debt of the maker of a note, there is no debt of an indorser, and it is error to instruct that there may be a verdict in favor of the maker, but against the indorser. (Everding & Farrell v. Toft, 1.) Bills and Notes Non-negotiable Instruments What Constitute. 14. A promissory note, by which the maker agreed to pay a sum certain for value received on a date certain, with interest, which recited that it was given for the purchase of a threshing machine, to which title was reserved in the payee of the note, with right to declare forfeiture at any time for nonpayment, even before the due date, is a non-negotiable instrument. (Western Farquhar Mach. Co. v. Burnett, 174.) Bills and Notes-Non-negotiable Instrument-Purchasers in Good Faith-Rights. 15. The purchaser of a non-negotiable instrument takes it subject to all the equities between the original parties, so that, where a note was given for the purchase price of a thresher under warranty and the machine was not as warranted, it was unnecessary to show that the payee was the agent of the assignee in making the sale. (Western Farquhar Mach. Co. v. Burnett, 174.) Bills and Notes-Form-Joint Note. 16. Notes containing the language, “We promise to pay to the order of" the payee, signed by a lumber company and by each of the partners doing business under such firm name, were "joint notes." (Anderson v. Stayton State Bank, 357.) Bills and Notes-Form-“Joint and Several Note." 17. Notes executed in adjustment of a claim against a partnership doing business under the firm name and style of a company, after the time for payment had been extended and the firm had paid the interest, signed by each of the partners, were "joint and several notes" within Section 5850, L. O. L., declaring certain notes to render the signers jointly and severally liable thereon. (Anderson v. Stayton State Bank, 357.) Bills and Notes-Joint and Several Note-Liability-Consideration. 18. Where joint and several notes executed by the partners of a firm originated in a partnership indebtedness to a third party, the extension of time for the payment of such indebtedness granted by the creditor's assignee furnished a sufficient consideration for the liability which the individual partners incurred when they signed such notes. (Anderson v. Stayton State Bank, 357.) Bills and Notes-Liability for Attorney Fees-Demand of Payment. 19. Since the Negotiable Instruments Act (Sections 5903, 5905, 5906, 5907, 5911, L. O. L.), requiring a formal demand of payment of a note, expressly relates only to the demand necessary to charge an indorser or some other person secondarily liable, it follows from the maxim "Expressio unius est exclusio alterius," that any reasonable request to pay a demand note, containing a provision for the payment of attorney's fees, is sufficient to put the maker in default, if he fails to discharge his obligation. (Hodges v. Blaylock, 179.) Bills and Notes-Demand for Payment-Waiver of Presentation. 20. The maker of a demand note waived its actual presentation upon a demand for payment by not asking for it, and by refusing payment on the ground that he did not then have the money and that he needed the amount to support his family. (Hodges v. Blaylock, 179.) See Bankruptcy, 9, 10. Failure of Consideration, See Evidence, 7, 8. BOUNDARIES. Boundaries-Establishment Statutory Proceedings-Validity. 1. Where adjoining land owners had their boundary line surveyed, and agreed that the line established should be the boundary line, and acted on such agreement for many years, and defendant took the land subject to such agreement, a proceeding by defendant under Section 2991, L. O. L., against the county surveyor, to establish the boundary, is a nullity as to the adjoining owner. (McCully v. Heaverne, 650.) Boundaries-Possession-Evidence. 2. In a suit to quiet title involving the ascertainment of boundary lines, the fact that defendant, six months after the commencement of the suit, was attempting to obtain possession by inclosing the land with a fence, was of itself evidence that she did not actually have possession. (McCully v. Heaverne, 650.) Boundaries-Evidence-Sufficiency. 3. In a suit involving title to lands, evidence based on map on which surveyor had noted that the lines do not purport to be established in accordance with the legal subdivisions of quarter sections held insufficient to establish the boundary line as claimed by plaintiffs. (Rasmussen v. Winters, 674.) BURDEN OF PROOF. See Bills and Notes, 6. See Evidence, 6. See Fraudulent Conveyances, 1, 4. See Schools and School Districts, 2. See Waters and Watercourses, 6. CARRIERS. Carriers-Delay in Transporting Livestock-Evidence. 1. Evidence in an action for delay in transporting livestock, held to sustain a finding that the cattle were ready to be loaded, in accordance with an arrangement with the carrier, at the time of the departure of the train. (Blackwell v. Oregon Short Line Ry. Co., 303.) |