lence was admitted, under objection and But held that with reference to the evexception by the defendant, that the plain. dence that the plaintiff tendered his fare tiff, after the second expulsion, offered to and was refused admission to the train pay his fare and was refused admittance that was improper. If a refractory passto the train. Also, under exception, the senger is put out of the car, and by refracfollowing conversation between the ticket tory is meant any one refusing to comply agent and plaintiff was admitted; with the rules the company can lawfully

I said to this agent: “I want to buy a make, he cannot demand, as matter of ticket-an excursion ticket-to South- right, even upon complying with the rule ampton, from New York to Southampton violated, to be taken back again eo inand back again.” He said it would be stante, unless he is put off at a regular $3 50. I said: “How long does this stopping station, and unless at least he ticket run?” He said “Thursday.”

Thursday.” I then and there obtains a ticket or tenders said that will just suit me because I want his fare. He cannot, as suggested, get to come back on the 7th. He said to me, himself ejected from a train, offer to pay “Well, I don't know about that; I think his fare, and recover damages for being the ticket expires on Monday.” said I, refused admission to the train. Being “Oh, no. On Sunday you do not run any unable to say on which theory the jury detrains, and Monday will be one day as I termined the plaintiff entitled to success, am going on Saturday afternoon; Tues- the judgment must be reversed. day wil be two days and Wednesday Opinion by Brady, J.; Davis, P. J., three days.” He said : “shall I give you concurs in result, but holds that there was a ticket." I said “ Yes."

no agreement to be submitted to the jury The judge in his charge to the jury left between the agent and plaintiff; Daniels, it with them to say whether the ticket J., concurs in the opinion, with modificar agent did anything which induced plain- tion of Davis, P.J. tiff to alter his position and to buy the ticket, believing that it would be good till the 7th. The 5th of August was on Mon- NEGOTIABLE PAPER. SALE OF. day.

N. Y. COURT OT APPEALS. E. P. Wheeler for respt.

Lancey, applt. v. Clark, respt. A: J. Vanderpoel for applts.

Decided February 15, 1876. Held, The learned justice was right in Where a bank 'holding negotiable paper declaring that the ticket was not conclu-, receives the money on it, on the day of sive of the plaintiff's rights. It was only its maturity, from a party to it who a token or voucher adopted for conve

takes it up without informing the bank nience to show that the passenger had

of his purpose, and transfers it to a paid his fare from and to the points named.

third party, the latter takes it subject to

all equities existing between the maker The plaintiff had the right therefore to and the party taking it up. show that in a conversation before his purchase from the defendants' agent, he was

This action was brought upon a promisinduced to believe that he could use the sory note made by defendant for the ac

commodation of the firm of Lambert & ticket on the day when he attempted to Lincoln, who had it discounted and redo so and was ejected. The question as to ceived the proceeds Before the note be what the contract really was

as to his transportation was one, therefore, to be come due the firm was dissolved, and determined by the facts disclosed. The

Lincoln was to close up its business. statements of the ticket agent were bind. Plaintiff resided in Canada, and Lincoln ing on them.

wrote and requested him to take the note

money to take it

up. He

and furnish the

sory note is induced to sign it by sent the money a few days before the note

fraud, yet in 80 signing acts neglibecame due to Lincoln, who put it in the

gently, he is liable thereon to a bona

fide holder for value. bank to his individual credit. On the day

This action was, at the September term, the note bicome due Lincoln went to the bank and by his individual check paid the 1874, committed to a referee, who, at this note to the discount clerk, who knew it term, reported the following facts:

This is an action of assumpsit upon a was an accommodation note, without assuming to act as agent for, or asking to promissory note, of which the following is have the note transferred to any one, and a copy; “Tilton, N. H., January 1st, did not mention plaintiff's name.

He 1872, Nine months after date, I promise asked to have the note protested so that to pay, to the order of R. M. Grems, one he could hold the endorser and maker, hundred and forty dollars, at my residence but did not state why he wished to hold in Tilton, N. H., value received and int.

Due Oct. 4, 172. LORENZO SMITH.” On them He afterwards sent the note to

the back of said note is the following: plaintiff.

“ Without recourse. R. M. Grems." “DeThos. II. Hubbard, for applt.

mand and notice waived. Leonard GerC. F. Brown, for respt.

rish.” The plaintiffs purchased the note, Held, That there was no sale by the a short time after its date, in good faith, bank of the note to plaintiff; that the without notice of any defect. The signabank could not be made a seller without ture is genuine, but the note is wholly its knowledge or consent; that by a sale without consideration. The defendant of the note the bank would have impliedly did not contract to give any note, nor warranted that the paper was genuine and know or have any suspicion that it was all it purported to be on its face, and it a note he was signing, but was fraudulencould not be drawn into this implied war- ly induced by the payee to sign it under ranty without its consent. (32 N. H., 238; the pretence that it was an agreement to 20 N. Y., 226; 4 Duer. 79; 5 R. I., 218; become agent of a patent haj-fork, and 2 Parson on bills and notes, 2d ed , 37.) upon the representation by the payee that That there was no transfer of the note by the defendant was to incur no pecuniary tne bank, and plaintiff's title was derived liability. It was a negligent act on the from Lincoln and cannot be inforced part of the defendant to sign the note against the defendant, as the note was without ascertaining whether it was what taken subject to any defense defendant the payee represented, or something else. could have made if sued by Lincoln, and [At the request of the defendant, I add the note having been made for the accom- the following: The defendant is an old modation of the firm of which he was a man, of limited education and poor eyemember he was bound as to the maker to sight, and is not in the habit of writing

To this, at the Order of General Term, reversing judg- except to sign his name. ment in favor of plaintiff, affirmed. request of the plaintiffs I add the followOpinion by Earl, J.

ing: His daughter, an intelligent woman,

was present when the note was signed, NEGOTIABLE PAPER. NEGLI. and had an opportunity to read it.] A

GENT SIGNING. ESTOPPEL. few days after the note fell due, the deSUPERIOR COURT OF NEW HAMPSHIRE. fendant, having learned that the plaintiffs Citizens' National Bank v. Smith.

had it, called at the bank and examined it, Decided August 12, 1875.

and gave notice to the cashier that he

should not pay it. There was no proof If the maker of a negotiable promis- that payment of the note was ever de

pay it.

manded at the defendant's house. The defence fails to to establish it but is aldefendant's counsel, on the day after the lowed, without objection, to prove, hearing closed, took the position, in a let

uncontradicted another, viz., want ter to the referee, that the action cannot

of consideration, it is error to refuse

to direct a verdict for the defendant. be maintained for want of a demand at the defendant's house. The referee ruled, Appeal from judgment entered on'ver.

dict of a jury. pro forma, that the plaintiffs are entitled to recover, and finds that the def:ndant did This action was brought on a promispromise, in manner and form as the plain- sory note. Defendant was a member of tiffs have declared, and assesses the dam- the firm of L. O. Wilson & Co., who obages in the sum of one hundred and forty tained from their creditors a composition dollars, and interest from January 1, 1872; deed, the creditors agreeing to take twenbut if the court shall be of opinion that ty per cent. to be paid by or before Jan. upon the foregoing facts the plaintiffs are 1st, 1862. Plaintiff's firm signed this not entitled to recover, then the referee agreement, and on Dec. 20, 1861, received finds that the defendant did not promise the twenty per cent. The note in this in manner and form as the plaintiffs have action bears date August 1st, 1861. The declared.

date of entry of the note among plaintiff's The questions arising on the foregoing bills receivable, is Dec. 21st, 1851. Dereport were transferred to this court for fendant alleged, that the note was given determination by Rand, J.

as an inducement for signing said deed, in Held, That the defendant would not be fraud of other creditors. He fails to esliable ordinarily, as his signature was ob- tablish this on the trial, but was allowed, tained by fraud, but that the finding that without objection, to testify that upon the he acted negligently in signing estopped delivery of said note, no consideration him from denying, as against an innocent was paid therefor. holder, the usual legal effect of his signature to a negotiable instrument, and actions with L. O. Wilson & Co., prior to

Held, If the note was given for transbrought the case within the principle that “where one of two innocent parties must ceased to have any validity after such

the payment of the twenty per cent., it suffer by the acts of a third, he who has enabled the third person to occasion the payment, and there is no testimony tend

ing to prove any transaction with them loss," must suffer it.

thereafter. A subsequent promise to pay Opinions by Cushing, C. J.; and Ladd such a note would be no more bindmg and Smith, J. J.

than the note itself, which was without

consideration. The specific defense set NOTE IN FRAUD OF COMPOSITION up was not established, but the failure of DEED.

consideration was, and cannot be disre


The Court erred in not directing a verJohn M. Slade, Survivor, &c. respt. vs.

dict for the defendant on the ground of

failure of consideration. Lewis O. Wilson, applt. Decided January 28, 1876.

Judgment reversed and a new trial ordA note given to obtain the signature of ered, costs to abide the event.

a creditor to a composition deed, the Opinion by Brady, J.; Davis, P. J. amount of which is in excess of the and Daniels, J., concurring.

amount paid other creditors, is void. When a defendant, setting up such a

EVIDENCE. ACCOUNT BOOKS. B of Mitchell & Co. under notice for their N. Y. SUPREME COURT, GENERAL TERM production by defendant's counsel The FIRST DEPARTMENT.

account of Betsey Mitchell was received Betsey Mitchell, Respt, v. Martin in evidence by consent of defendant's atY. Bunn, Applt.

trney. The ledgers refer to other books

from which the accounts were apparently Decided Mar. 7th, 1876.

made up. Under date of Arpil 1st, the Books produced on notice by opposing date of the note in suit, Mrs. Mitchell is

counsel are competent as evidence. debited “To note for balance $577.56,” the Where one of a set of books, containing amount of the note in suit. Under date

entries in brief and referring to other books for a fuller explanation, is

of January 23d and February 19th, 1866, received in evidence

, it is competent appeared credits for $300 and $100, which to refer to the entries in such other plaintiff testified were proceeds from sale books referred to, and such entries of her property, received by her husband. are competent evidence.

Defendant offered to show by the books of Where the books of defendant's firm, in the firm and by his own testimony that no

which is an item uebiting plaintiff, such money was received by the firm. with the note in suit, is introducedl Defendant's counsel had offered in eviin evidence to charge defendant with personal knowledge of its issue, it is dence so much of the day books as recompetent for him to testify that he ferred to Mrs. M.'s account. The evidence had no such knowledge at the time, or and the books were excluded. until long afterwards.

Ten Broeck & Van Orden for applt. Appeal from judgment entered on re Edwards & Odell for respt. port of referee in favor of plaintiff.

Held, error: The day books, so far as Plaintiff's husband and the defendant they relate to those items, should have were co-partners in trade, doing business been received in evidence. The ledgers, under the firm name of Mitchell & Co. having been produced on notice, were This action is brought on a promissory competent, and it was competent to go note given by plaintiff's husband, at the back to the day books to explain the items time this action was brought, deceased, to in the ledger. plaintiff for money alleged to have be Defendant was also asked, “When was longed to plaintiff and used in the busi- the existence of this note first brought to ness of said firm. The answer denied up-cluded.

your attention ?” The answer was exon information and belief that Mitchell

Held, error. The evidence was compe& Co made the note, and alleged that if

tent to rebut, so far as it might go, the the note was made, it was made by Mitch-implication of knowledge presumed to be ell for his individual indebtedness; also denied from the contents of the ledger. denied that Mitchell & Co. ever received Judgment reversed and new trial grant. any consideration therefor, and denied ed, costs to abide the event. that defendant was in any way liable

Opinion by Davis, P. J.: Brady, J.:

and Daniels, J., concur. thereon, and by an amendment of the answer set up a counter-claim. Plaintiff was

MORTGAGE. RECORDING ACT. called as a witness by defendant, and on

PRIORITY. cross-examination gave evidence tending to show that she had a separate estate,

N. Y. COURT OF APPEALS. consisting of moneys left her by her father, Greere v. Deal et al. which moneys had been placed to her Decided February 15th, 1876. credit in the firm of Mitchell & Co. Where simultaneous puri money Plaintiff's counsel produced ledgers A & mortgages are given, but recorded at


different times, an assignee of the first stating it was given for purchase money, recorded mortgage, without notice of the it showed it was given at the same time mortgages being equal liens, acquires no with the G. mortgage, and that neither priority over those subsequently record

could have a preference, but that the only ed.

effect of the recording of an assignment This was a controversy between defendants D. & W. as to surplus money arising against a subsequent sale of the mortgage

of a mortgage is to protect the assignee from a sale on the foreclosure of plantitl's itself, the recording act only applying to mortgage. It appear: d that D. & G. were successive purchasers from the same sellthe owners of the land sold subject to plaintiff's mortgage; that they conveyed D. and W. were entitled to share equally

ers, 42 N. Y., 334; and that, therefore, the same to B., and each received from

in the surplus. him a purchase money mortgiige for the

Order of General Term, affirming order same amount, with the understanding of Special Term, reversed, and that of that they were to be equal liens upon the

Special Term modified. real estate. G.'s mortgage was recorded

Opinion by Earl, J. first. After D.’s mortgage had been recorded, G. assigned his mortgage to E. P. G. This assignment was recorded. E.

SPECIFIC PERFORMANCE. EVI. P. G. aftrwards assigned it to W. The

DENCE. POSSESSION. PRACTICE. referee held that W. was a bona fide holder for value, and that the mortgage held N. Y. SUPREME COURT, GENERAL TERM,

FOURTH DEPARTMENT. by him by virtue of its priority upon the record had priority over D.'s mortgage,

Benedict, applt, v. Phelps, respt. and that i he surplus money should be ap Decided January, 1876. plied thereon.

The Court can only order the exceptions Z. S. Westbrook for applt.

taken in n case to be heard in the first Martin L. Stover for respt.

instance at the General Term.

A parol sale o land with possession unHeld, That aside from the recording dor it for twenty years makes a good act W. took his mortgage subject to the

tille. equities between G. and D., and could Where a person stands by and overhears a

conversation between a deceased person claim no priority. 22 N. Y, 535; id.

and his wife it is not a personal one 61. That there was nothing to estop D. under statute. from asserting his rights, as he did noth Plaintiff claims to recover of defendants ing to induce a purchase of the G. mort- about 70 acres of land, and claims title gage, and did not, by any act or omission, under her husband's will. mislead W. or his assignor. Morse vs. M. Defendant disclaims title in himself, Bk. 55 N. Y., 41. distinguished. That the but alleges title in his wife Samantha, recording act did not affect the rights of &c. Samantha clanns title under an old the parties (1 R. S., 756, Sec. 1), as that agreement with her brother, Samuel B. only applies to subsequent conveyances Benedict, made in 1851, with possession which are first recorded, and the G. mort for 20 years, as follows: In 1851 Samuel gage was not a subsequent cnveyance, B. Benedict was the owner of the land in but one executed at the same time; that question, and proposed to sell and did if W., by virtue of his assignment, could sell to defendant, Samantha, the land for be regarded as a subsequent purchase“, $227, in payments of $50 each, as he the statute did not aid him, as D.'s mort- should call for them. Samantha was also gage was recorded before the assigninent, to pay one Levi B., after the death of the and as that mortgage contained a clause, ' mother of said Samantha the sum of $300,

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