In this state the attorney's fees, which the successful party is permitted to recover in courts of record, are prescribed by statute or by rule of court. In justices' courts none are given except in a few special cases. The policy of our law is to limit such recovery to a very moderate sum in every case where it is permitted at all. We have also in this state had many laws from the very first, and though their penalties have not been severe, they have fixed a maximum of ten per centum per annum, which is not to be exceeded under any circumstances. And it is a question of very grave importance whether the policy which thus limits attorney's fees, and also limits the rates of interest, can be set aside by provisions like that under review.

The notes upon which a recovery is sought in this case vary in amount from $41.50 to $104.12. Six of them, including two for $41.50 each, contain the promise to pay an attorney's fee of fifteen dollars, should any proceedings be instituted for collection. All of them could be sued in justices' courts, and the mere taking out of a summons would be a proceeding for collection. Therefore, the makers are made to promise that if the payee, when the notes come due and are not paid, shall take out a summons upon each of them, the makers will pay an attorney's fee of fifteen dollars upon each. It is, of course, preposterous to call this a fee; a fee supposes service; and here the services to be compensated may be purely nominal; the sum is nothing but a penalty; it can even be regarded as stipulated damages on a default: for the sum to be paid bears no proportion to the sum overdue, but is the same for the smallest notes as for the largest. Moreover, the law itself determines what shall be the recoverable damages on default in the payment of a liquidated demand, and limits it to a sum not to exceed ten per centum per annum; while these stipulations in some cases provided for the payment of a sum equal to thirty-five per centum, however brief might be the period of default.

not

A stipulation for such a penalty, we think, must be held void. It is opposed to the policy of our laws concerning attorney's fees, and it is susceptible of being made the instrument of the most grevious wrong and oppression. It would be idle to limit interest to a certain rate, if under another name forfeitures may be imposed to an amount without limit. The provision in their notes is as much void as it would have been had it called the sum imposed by its true name of penalty or forfeiture. There is no consideration, whatever, that can support it.

It follows that the circuit court should have rendered judgment for the amount of the notes ignoring this provision. The judgment must be reversed, with costs, and a new trial ordered.

THE longest syllabus in the reports is probably that to the case of Curtis v. Leavitt, in the fifteenth volume of the New York Court of Appeals reports. It extends over seven pages.

This was trespass by appellant against appellee, for levying upon as sheriff, and selling a team of two horses and their harness, the property of appellant. The levy and sale were by virtue of an execution issued upon a judgment in favor of John V. Farwell & Co., and against appellant, for some $400. The principal question is, whether the property was exempt from execution. There is no objection to the sufficiency of the evidence to prove the exemption, on any other ground than that it is not shown that the property was personally used by appellant in obtaining the support of his family. Appellant had, shortly before the levy of the execution, been conducting a country store at Shirley, in McLean county, but at that time was residing in Bloomington, and was not engaged in any business. The horses were kept in his stable at Shirley, and he furnished them feed; and he had been in the habit of using them, or having them used in hauling for himself, when he had work of that kind for them; and when they were not thus used, they were driven by one Nelson (who took care of them and employed them in such jobs of hauling as he or appellant could obtain), Nelson receiving onehalf of the amount thus made, after deducting expenses, and appellant the other half. When the team was levied upon, it was being used by Nelson in hauling potatoes at Bloomington, under this arrangement.

Among other property exempt by statute from execution, it is provided: "When the debtor is a head of a family and resides with the same, there shall be exempt from execution, etc., one yoke of oxen, or two horses in lieu thereof, used by the debtor in obtaining the support of his family, not exceeding in value $200, and the harness therefor, not exceeding in value $40." R. S. 1874, p. 499, § 13.

Appellee insists that this language should be construed strictly, and that the property to be exempt should be personally used by the debtor. This is

contrary to the principle of construction applicable to such statutes. Such statutes are not to be construed strictly, but so as to carry out the obvious intention of the legislature in enacting them. Good v. Fogg, 61 Ill. 449.

It often happens that the head of a family is, by reason of physical infirmities, personally unable to take care of and use a team; and it is manifest in such cases, the reason and policy of the law no less favor the exemption than when the head of a family is free of such misfortunes. So, also, it is provided: "When the head of a family shall die, desert or not reside with the same, the family shall be entitled to and receive all the benefits and privileges which are in this act conferred upon the head of a family, residing with the same." R. S. 1874, p. 499, § 15. It could hardly be contended that it was designed by the legislature that the delcate mother or the helpless infant should actually drive and use the team, in order to have the benefit of the exemption. And yet the position contended for would seem to necessitate this, for no exception is made to the phraseology of the section in their favor.

The words" used by the debtor in obtaining the support of his family," are general and restricted to no particular mode of use. They are answered when the team is hired to others for a compensation, which compensation goes into the general fund to support the family, as well as when the debtor himself goes with the team as its driver and adds the earnings of his labor to that of the team.

A team kept for pleasure merely, is not within either the letter or the spirit of the statute. The team must be kept and used in good faith to the means of support of the family; but when it is thus kept and used, we do not consider it important by whom it is taken care of and used. In this matter, as in very many others, the act of the agent or servant is to be regarded as the act of the principal or master. The use is his use, whether by his own hands or by those of another. The cases referred to by appellee, in California and Iowa, were decided under statutes, the phraseology of which was entirely different from that we have been considering, and we do not, therefore, regard, them as pertinent.

The only other question to be considered is: Did appellant waive his right to claim this property as exempt from execution? The facts claimed by appellee to have this effect, are in brief these: Some time, probably a month or more before the levy of the execution, appellant being indebted to Roush & Humphreys to the amount of $1,000, agreed with them to turn over the stock of goods, which he had in his store in Shirley, and the horses and harness levied upon and a wagon; and they were, as he says, to protect him against this execution; or as they say to buy the execution and give him time. He turned over the stock of goods to them and they placed a man in possession; but the horses and harness were not surrendered to them, nor did they ever demand their possession. Shortly after Rousch & Humphreys obtained possession of the

goods, appellant retook them; and they then replevied them from him and had the execution levied upon the horses and harness and wagon. We do not perceive how this agreement can be construed as a waiver of any right to claim the benefit of the exemption law. If the property was exempt from execution, then appellant was at liberty to sell it or mortgage, or pledge it as he pleased without regard to the execution. Vaughn v. Thompson, 17 Ill. 78; Cole v. Green, 21 Ill. 104. Appellant never agreed that the property should be seized and sold on the execution; and Rousch & Humphreys surely do not show a superior right to the property, when they never had possession of it, and make no pretense that they have complied with the contract by which they were entitled to have its possession. We think the judgment below wrong; and it must, therefore, be reversed and the cause remanded. Reversed and remanded.

DUTY OF BANKS AS COLLECTING AGENTS.

LEVI v. NATIONAL BANK OF MISSOURI.

United States Circuit Court, Eastern District of Missouri, September Term, 1878.

Before Hon. JOHN F. DILLON, Circuit Judge.

1. BANK AS COLLECTING AGENT - PAYMENT BY CHECK.-A bank acting as the collecting agent of another bank, has, in the absence of special authority or usage, no right to receive in payment anything but money; if it receives the check of the debtor on another bank, this is conditional payment only, and it becomes the agent of the drawer of the check to receive the money thereon, and until the money is received the payment is not complete.

2. EFFECT OF CERTIFICATION OF CHECK-FAILURE OF COLLECTING BANK-RIGHT TO COLLECT AND CREDIT AFTER SUSPENSION.-The defendant bank received from the plaintiffs, their correspondent, a bill of exchange "for collection and credit," and accepted from the drawee his check on a third bank for the amount and surrendered the bill of exchange. On presenting the check, instead of demanding the money thereon, it accepted its certification as good, and suspended the same day, having previously credited the plaintiffs with the amount. On the day after its suspension it collected the certified check. A receiver having been appointed, the amount mingled with other moneys came into his hands. The question was whether the defendant bank was a general debtor to the plaintiff's for the amount, or whether the money received on the check was held by the receiver in trust for him; and judgment of the court was for the plaintiffs.

This is a suit in equity, wherein the plaintiffs seek to recover from the defendants a certain sum of money which they allege the receiver of the defendant-the National Bank of the State of Missouri -has in his possession, which is the proceeds of a certain draft drawn by August Taussig on the firm of Taussig Bros. & Co., St. Louis, for $10,000, which said plaintiff's forwarded to the defendant on the 18th June, 1877, "for collection and credit." This sum of money the plaintiffs claim, on the ground that the said bank did not collect it until

after its suspension, on the 19th day of June, 1877, and, therefore, holds the money as plaintiffs' agent. The plaintiffs also seek to recover said sum of money on the ground that the directors of the defendant bank received said draft for collection after they had knowledge of the fact that the bank was insolvent, and on the very day the bank suspended payment, and that, therefore, the receipt by the defendant bank of said money was a fraud on the plaintiffs, and they are entitled to the full proceeds. To this bill the defendants filed an answer, putting in issue the averments of the plaintiffs' bill, and stating the facts of the transaction specially, to which answer the plaintiffs replied.

The facts, so far as material to the ground of the court's judgment, are, shortly, these: The defendant bank was the correspondent of the plaintiff bank. On June 18, 1877, the plaintiffs transmitted to the defendant bank" for collection and credit," a draft or bill of exchange for $10,000, drawn by one August Taussig on the firm of Taussig Bros. & Co., St. Louis. This was received by the defendant bank on the morning of June 19, and the amount provisionally credited on account to the plaintiffs. The defendant bank on the same day presented the bill of exchange for payment, and received from Messrs. Taussig Bros. & Co. their check for the amount on the Franklin Savings Bank of St. Louis, and thereupon surrendered the bill of exchange. This bill of exchange was specially indorsed to the defendant bank for collection on account of the plaintiffs. On the same day (June 19) the defendant bank presented this check, and had it certified as "good" by the Franklin Savings Bank, and took it away; and on the same day the directors of the defendant bank resolved that all payments shall be suspended, and all its banking business shall cease except to collect and preserve its assets." It never again opened its doors.

The next day after the suspension its officers collected the amount of the certified check, and a receiver having been appointed by the comptroller of the currency, the money thus collected having been mingled with the other money of the bank, came into his hands. No notice to the plaintiff's of the provisional credit was given until after the check had been collected, on the 20th day of June.

The defendant bank was hopelessly insolvent at the time, and had been known to be so for a considerable time by its executive officers and a majority of the directors; but as the judgment of the court does not proceed upon the distinct ground that the collection of the draft was for this reason fraudulent, the particular facts in this regard need not be stated in detail.

Two questions were argued:

First-Whether or not the defendant, Johnson, as receiver of the said bank, holds the amount of money so collected as a trustee for the plaintiffs, or whether they are simply contract creditors for said amount, and entitled only to their dividends as other creditors.

Second-Whether or not the insolvency of the bank, together with the facts in evidence in relation to the knowledge of its directors of its insolvency, readered the collection of the money by de

fendant bank a fraud against plaintiffs, so as to entitle them to recover the full amount of the proceeds of said Taussig draft.

William Patrick and Nathan Frank, for complainants; Henderson & Shields, for defendants. DILLON, Circuit Judge.

It is only necessary to decide the first of the above questions, although counsel have discussed both of them with great fullness, and referred to numerous cases. While these cases have been considered, I do not feel called on to examine them at length in this opinion, for, in my judgment, on the facts here presented, the principles of law decisive of the case are clear and well settled.

In respect of the Taussig draft, out of which the controversy arises, the defendant bank was the collecting agent of plaintiffs. This is manifest from the relations of the two banks to each other; from the letter transmitting this draft "for collection and credit," and from the plaintiffs' special indorsement thereon to the cashier of the defendant bank "for collection on account of" the plaintiffs. This relation was not only known to the two banks, but knowledge of it, that is to say, that the defendant bank was merely the agent to collect this draft for the plaintiffs, and not the holder of it in its own right, was imparted to the drawees of the draft, the Messrs. Taussig Bros. & Co., by the above-mentioned special indorsement of the plaintiff's on the draft itself, and which was surrendered to the drawees when their check for the amount thereof on the Franklin Bank was received.

What, then, was the duty of the defendant bank, and the rights and obligations of the drawees, the Messrs. Taussig Bros. & Co.?

It was the duty of the defendant bank, as the collecting agent of the plaintiffs, to present the draft for payment; and as there is no proof of any special authority to the defendant, or agreement or usage varying the legal rights of the parties, the defendant bank could receive in absolute payment thereof nothing but money, "that which the law declares to be a legal tender, or which, by common consent, is considered and treated as money." Ward v. Smith, 7 Wall, 452. This settled principle of law has not been drawn in question by the deiendant's counsel.

As the defendant bank was not authorized to receive payment except in the manner above stated, and as the Messrs. Taussig Bros. & Co. knew that the defendant bank did not hold the draft as their own, but as agents to collect, they are charged with knowledge that they could only make a valid payment binding upon the plaintiff by making such payment in money.

Their check for the amount of the draft would, at most, be but conditional payment-that is, payment when the money was actually received thereon by the agents of the plaintiffs. Even if the defendant bank had undertaken by a special agreement to receive the check in absolute payment, (of which there is no pretence), such an agreement would have been void for want of authority from the plaintiffs to make it.

When the check was received in exchange for the

draft, the drawers of the check must be taken to have constituted the deiendant bank their agents to collect the check, in order that its proceeds might be paid to the plaintiffs. Without special authority to the defendant bank to take a check in absolute payment, or without ratification of its act in receiving a check instead of money, this act of the defendants would not bind the plaintiffs ex proprio vigore. The latter could affirm or disaffirm it, as they might elect. If the money had been received on the check by the defendant bank before its suspension, this would have presented a very different question from the one which actually arises.

The check was presented, but instead of payment being demanded and received, a certification of it was accepted. That was an act which did not bind the plaintiffs-for it was alike without their knowledge or authority. If this was done by the defendant bank without authority from the Messrs. Taussig Bros. & Co. it might, as between them and the bank, discharge them as drawers of the check, but it could not operate to pay the bill of exchange for which the check was given, or in any manner vary the rights of the plaintiffs. Their debt subsisted until payment was made by Messrs. Taussig Bros. & Co., and no payment was made until the check was actually paid, which was the day after the failure of the defendant bank and its resolution to cease business and wind up its affairs. It is, therefore, a mistake to suppose that the act of the defendant bank in originally receiving the check of the Messrs. Taussig Bros. & Co., or in subsequently procuring it to be certified, discharged Taussig Bros. & Co. from their liability to the plaintiffs. I am therefore of opinion that the defendant bank remained the agent of the plaintiffs to collect the bill of exchange on Taussig Bros. & Co. until the money was actually received. When the money was received, and not before, the agency of the defendant bank to collect terminated, and its authority to credit the amount to the plaintiffs and to make itself an absolute debtor therefor would then arise, provided it was still a going concern; butinasmuch as before it received the money it had failed, its agency to constitute itself a general creditor for the amount, had ceased to exist. It would hold the amount as the agent of the plaintiffs or in trust for it, subject to any balance due to it from the plaintiffs.

6

Against this view the defendants urge two objections. The first is thus stated in the defendants' printed argument: "The letter transmitting the draft was simply asking for credit-the depositing of the Taussig draft by the plaintiffs in the defendant bank. The words 'for collection and credit' mean credit.' While it is reasonable to suppose that the defendant bank would not give the credit until it was satisfied that it would obtain the money on the draft, yet the ultimate object of the plaintiff's being credit,' if they receive the credit, it matters not to them whether the defendant bank received the money or not. And as soon as the defendant bank was satisfied to give the credit, as requested, the plaintiffs' demand was complied with, whether the collection was ever made or not."

6

The argument is fallacious. The words "for collection and credit" do not mean that the credit shall be given until the money is collected. And it does make a difference whether the defendant bank ever received the money or not. On this point the language of Byles, J., in Sweeting v. Pearce, 7 C. B. (N. S.), 485, is applicable. He says: "It is not disputed that the general rule of law is that an authority to an agent to receive money implies that he is to receive it in cash. If the agent receives the money in cash the probability is that he will hand it over to the principal; but if he is allowed to receive it by means of a settlement of accounts between himself and the debtor, he might not be able to pay it over; at all events it would very much diminish the chance of the principal ever receiving it; and upon that principle it has been held that the agent, as a general rule, cannot receive payment in anything but cash." This language is approved in the case of Pearson v. Scott, decided in the Chancery Division of the High Court of Justice, May 4th, 1878, 18 Alb. L. J. 193.

The second objection of the defendants' counsel to the view above stated is, "that even if the de-. fendant bank was the agent of the plaintiffs, for the collection of the Taussig draft, and had no right to receive payment thereof in anything but money, the acceptance of the Taussig check, and having it certified by defendant bank was a simple breach of their duty as such agent, for which they became instantly liable on the 19th day of June, as a simple contract debtor." I answer that it has been shown above that the act of the defendant bank in having the check certified wrought no change in the plaintiffs' rights, and that their debt still remained. This unauthorized act, if it resulted in any injury to the plaintiffs, would undoubtedly give them a right to recover any damages suffered thereby, but it did not dissolve or terminate the relationship of principal and agent between the plaintiffs and the defendant bank, nor preclude the plaintiffs from the right to elect to ratify the act of receiving the check and to claim the money afterwards collected thereon.

The force of the argument of the defendants' counsel, that the defendant bank, on the very day of its failure and when it was in articulo mortis, had the right by a credit in advance of collection, or by its unauthorized act in receiving the check and in procuring its certification, to terminate, without the plaintiff's consent, the agency, and to constitute itself the actual debtor for the amount, against the plaintiffs' will and against their interest, I must confess I have been unable to perceive. It is not unusual for bankers to credit their correspondents or customers with the amount of paper of a certain character at the time of its receipt for collection, but such credits are provisional only, being made in anticipation that the paper will be promptly paid, and with the right to cancel the credit if the paper is dishonored. Trinidad National Bank v. Denver National Bank, 4 Dillon, 290; 7 Cent. L. J. 170. Such was the nature of the credit made in this instance, and the circumstance is immaterial, as it does not vary the ultimate rights of the parties.

The conclusion, therefore, is, that the defendant bank was the agent of the plaintiff's to collect the draft on Taussig Bros. & Co.; that the agency, remained until the money was received on the check, and as this was after the defendant bank had ceased to do business and had resolved to wind up its affairs, it was received in trust for the plaintiffs (less the plaintiffs' indebtedness to the defendant bank). and hence the receiver has no right to hold it to be distributed ratably among the general creditors of the bank.

Let a decree be entered for the plaintiffs for $8,168.58, with interest from the date of the commencement of this suit, at the rate of six per cent. per annum.

SPARKS from defendant's locomotive set fire to prairie along defendant's line of railway. The grass being dry, and the wind high, the fire extended about three miles during that evening and night, burning more slowly during the night because the wind had been less violent. Next morning the wind arose again, and blew hard, as was not unusual in that country, and carried the fire some five miles further, where it reached plaintiff's farm, and destroyed property of plaintiff. In an action for damages for destruction of plaintiff's property through negligence of defendant's railway: Held, that the facts showed prima facie negligence, on part of defendant, and that the damage by fire must be considered as the direct and natural result therefrom, such as would be reasonably anticipated, and that the high wind at that season of the year, although aiding in the spread of the fire, was neither extraordinary nor remarkable, and could not be regarded as the introduction of a new agency, so as to relieve the railway com. pany from the results of the negligence of its servants in permitting the fire to escape from its engines.

NAPTON, J., delivered the opinion of the court: Notwithstanding the multitude of decisions here and elsewhere, in regard to the responsibility of railroad companies for fires escaping from their engines, the present case undoubtedly presents some novel features, which have occasioned some hesitation in applying to it principles which, after considerable conflict, seem to be now pretty well settled. The facts in this case are, that some sparks from a locomotive of defendant set fire to the prairie about two o'clock on the evening of the 23d of November, 1872, near the track, and the grass being very rank and dry, and the wind

being high, the fire extended about two and a half or three miles before night and continued to burn during the night, though slowly; but in the morning the wind arose again, and blew hard, as was not unusual in that country, and carried the fire some five miles further, until it reached plaintiff's farm, about nine or ten o'clock on the 24th, and burned over a fire line of about sixteen feet of plowed ground, and destroyed the property of the plaintiff.

The instructions given and refused by the court at the trial, were as follows:

The plaintiff asked the court to give the following instructions in his behalf, viz.:

1. The court instructs the jury that the defendant in this case was bound to a degree of care and diligence in proportion to the degree of damages and the probable extent of injury to the property of others, in case of negligence, and if the jury believe, from the evidence, that on or about the 23d day of November, 1872, the defendant, the M., K. & T. Railway Company, through its agents and employes, while operating its engines and trains of cars over the line of road in Vernon County, Mo., failed to exercise that degree of care and caution they ought to have done under the circumstances, in consequence of which fire escaped from the engine of the trains in their use, and set on fire the dry grass and combustible matter accumulated and standing alongside of and by the railroad track, and thence by its natural extension communicated and burned the property of plaintiff, as alleged in the first count of his petition, then they will find for the plaintiff.

2. The court instructs the jury, on the part of the plaintiff, that if they should believe from the evidence that there was a continuous line of dry prairie grass or other combustible matter extending directly from the point at or near the railroad track where the fire is alleged to have started, to the plaintiff's premises, and that the defendant, while running its locomotive steam engines, cars and coaches, on its said line of road in Vernon County, Mo., through its servants, agents and employees, negligently permitted the fire and sparks to escape from its engine on the said 23d day of November, A. D., 1872, and that the sparks did set fire to the dry grass along and by the side of its line of road near to the same, and that the fire so spread naturally continued to spread and burn without any break, and burned over the whole line of combustible matter from the point where it started to plaintiff's farm, so as to make but one continuous conflagration from the time it started near the railroad track until it reached the plaintiff's farm, and did burn up and destroy plaintiff's property as alleged, without any fault or negligence on his part, then they will find for the plaintiff.

3. The court instructs the jury on the part of the plaintiff, that if they believe from the evidence that the M., K. & T. Railway Company, on or about the 23d day of November, A. D., 1872, while running its locomotive steam engines, cars and coaches, on its line of road in Vernon County, Mo., through its servants, agents, and employees, permitted the sparks and fire to escape from its engines and set