was no broader in its designation than the undertaking imposed by the contract on the company. Under the ordinance and contract, the company took upon itself the obligation to furnish public lights at the call of the city in every public street and every public place in the city, and, in order to enable the company to comply promptly with the demand which might at any time be made by the city, it was necessary that the company should have the right to go into all the streets, without waiting for ordinances to be passed from time to time designating streets in which new light service was required. With a just regard to the interest of the city and to that of the company, the designation of streets contained in the ordinance was a reasonable compliance with the statute. A designation of all the streets in the city is equivalent to the designation of each and every street by name, and gives no support to the inference that it was intended to be evasive. The legality of a designation in the latter mode has not been questioned. It will be observed that the legislative acts do not make it obligatory upon the company to place poles in the designated streets as soon as the designation is made, and therefore the effect is the same whether the designation is generally of all the streets, or of each and every street by name. The purpose of the designation appears to be to prevent the company from occupying any street until the consent of the city is acquired. It could have had no other object. The permission of the city is a prerequisite to the right of the company to enter the street, and the designation is for the purpose of establishing what streets the company may use, and not what they must use in the immediate future. The object of the statute in this case is effectuated by the general designation. My conclusion, therefore, is that there is no fatal infirmity either in the resolution or in the ordinance, and that the judgment of the supreme court should be reversed as to both resolution and ordinance.

MECHANICS' NAT. BANK OF TRENTON v. HARTER et al.

(Court of Errors and Appeals of New Jersey. Nov. 20, 1899.)

BANKS-DEPOSITS-PAYMENT ON FORGED CHECK-DUTY OF DEPOSITOR.

1. The implied contract on the part of a bank with its depositor is that it will disburse the money standing to his credit only on his order, and in conformity with his directions; and therefore if it makes a payment on a check to which his name has been forged, or upon his genuine check to which the name of a necessary indorser has been forged, it must be held to have paid out of its own funds, and cannot charge the amount against the depositor, unless it shows a right to do so on the doctrine of estoppel, or because of some negligence chargeable to the depositor.

2. The return, to a depositor, of his check with a forged indorsement, together with his balanced pass book, casts on him only the duty of

exercising reasonable care and diligence to examine the vouchers and the account as stated by the bank, and to inform the bank of any errors thus discoverable.

3. A. delivered to the plaintiffs a sum of money, to be paid to B. The plaintiffs gave to C. for B. their check on the defendant bank, in which they were depositors, for the amount, payable to the order of B. C. forged B.'s name on the back of the check, and thus obtained the money from the bank. Held, in an action by the plaintiffs to recover from the bank the balance of their deposits, that the bank would not be entitled to charge the check against the plaintiffs on showing that A. had lost his right of action against the plaintiffs for the money which he had delivered to them.

(Syllabus by the Court.)

Error to supreme court.

Action by Nicholas C. Harter and others against the Mechanics' National Bank of Trenton. Judgment for plaintiffs. Defendant brings error. Affirmed.

William M. Lanning, for plaintiff in error. Frank S. Katzenback, for defendants in error.

DIXON, J. The facts constituting the plaintiffs' side of this case were as follows: On January 29, 1898, Samuel J. Kelly gave them his check for $1,000, and directed them to pay the amount to Kate Young on delivery of her bond and mortgage to Howard M. Richards. On the same day a bond and mortgage purporting to be made by Miss Young to Richards were delivered to the plaintiffs by Le Roy Applegate, a lawyer in whose office Miss Young was employed as a stenographer; and thereupon the plaintiffs gave to Applegate their check on the defendant bank, in which they were depositors, for $985, payable to the order of Miss Young. Applegate had forged Miss Young's signature on the bond and mortgage, and he also forged her signature on the back of the check, making it payable to his own order; and, he having added his own indorsement, the bank paid it to him. On February 11, 1898, the bank balanced the plaintiff's pass book, and returned to them this check as one of the vouchers; but the plaintiffs, not being acquainted with Miss Young or her signature, did not then discover the forgery, nor were they informed of it until November, 1898, when they promptly notified the bank. Having then demanded from the bank the amount of the check, they brought this suit to recover it. There can be no doubt that on these circumstances, standing alone, the plaintiffs were entitled to the verdict which was ordered in their favor at the trial in the Mercer circuit. The relation between a bank and its depositor is that of debtor and creditor, and the implied contract on the part of the bank is that it will disburse the money standing to the credit of the depositor only on his order, and in conformity with his directions. When, therefore, it makes a payment upon a check to which the depositor's name has been forged, or upon his genuine check to which the name of a necessary in

dorser has been forged, it must be held to have paid out of its own funds, and cannot charge the amount against the depositor, unless it shows a right to do so on the doctrine of estoppel, or because of some negligence chargeable to the depositor. 5 Am. & Eng. Enc. Law (2d Ed.) 1066 et seq.; Shipman v. Bank, 126 N. Y. 318, 27 N. E. 371; United Security Life Insurance & Trust Co. v. Central Nat. Bank (Pa. Sup.) 40 Atl. 97; Myers v. Bank (Pa. Sup.) 44 Atl. 280. Reference to the same authorities indicates that the return to the depositor of his check with a forged indorsement, with the balanced pass book, casts on him only the duty of exercising reasonable diligence and care to examine the vouchers and the account as stated by the bank, and to inform it of any errors thus discoverable. As, in the present case, the plaintiffs were not in fact acquainted with Miss Young's signature, and there is no ground for claiming that they ought to have known it, they did not fail in duty to the bank by not discovering the forgery on return of the check. Indeed, they were entitled to assume that the bank, before paying the check, had ascertained the genuineness of her apparent indorsement. The prima facie case of the plaintiffs being thus made out, it remains to consider the grounds of defense.

It appeared in evidence that in June, 1898, Kelly, who had then become the owner of the bond and mortgage, called on Miss Young about the interest; that she then told him she knew nothing about such a mortgage, that that was the first she had heard of it, and that she would see Applegate next morning at his office; that on the next morning, at Applegate's office, Kelly first had an interview with Applegate, then the latter had an interview with Miss Young, and immediately afterwards Miss Young told Kelly that it was all right, and Mr. Applegate was going to settle it soon.

On this evidence the defendant insists, in the first place, that a question of fact for the determination of the jury was raised,whether Miss Young had not thus validated the bond and mortgage, and consequently the indorsement of the check. But we think her words and conduct are not reasonably capable of such a construction. Their manifest import is that the bond and mortgage were not executed by her, but that they placed an obligation on Applegate, which she believed he would soon settle, and so make the matter right. They give no sign of any sense of obligation or purpose of settlement on her part.

The defendant secondly insists that Kelly, by his failure to give to the plaintiffs prompt notice of the forgery, as to which he was at least put on inquiry by what Miss Young told him in June, 1898, had lost his right to recover from the plaintiffs the money which he had left with them to be paid to Miss Young for her bond and mortgage, and

which had not been so paid, and thus the payment made to Applegate had become, as between Kelly and the plaintiffs, a constructive payment to Miss Young, and consequently should be deemed such a payment as between plaintiffs and the bank. Whatever may be said of the equities of the situation thus presented, this roundabout imputation of negligence cannot prevail at law. The principle on which negligence may preclude a depositor from recovering of his bank the money paid by the bank on a forged check is thus stated by Cockburn, C. J., in Swan v. North British Australasian Co., 2 Hurl. & C. 175, 190: "The customer would be entitled to recover from the banker the amount paid on such a check, the banker having no voucher to justify the payment. The banker, on the other hand, would be entitled to recover against the customer for the loss sustained through the negligence of the latter. Possibly, to prevent circuity of action, the right of the banker to immunity from loss so brought about would afford to him a defense to an action by the customer to recover the amount." This view received the approval of the court of exchequer in Halifax Union v. Wheelwright, L. R. 10 Exch. 183, 192, and of Grey, C. J., in Bank v. Stowell, 123 Mass. 196, 201. This principle affords no foundation for the defendant's proposition, for Kelly's negligence could not form a legal basis for an action by the bank against the plaintiffs. Looked at in another aspect, the same result is reached. The legal duty of the bank to answer to the plaintiffs for the amount of their deposits did not arise from Kelly's acts, and was not dependent on the state of accounts between him and them, and therefore cannot be affected by showing that he has no claim upon them. His formal release of all claims against them could not impair their legal right to insist that the bank should perform its contract with them as depositors. The opposite doctrine would involve the plaintiffs in a peril which they should not be required to incur, for the question whether Kelly has lost his right of action against them cannot be conclusively settled against them until he has been heard, and he cannot be heard in the litigation now pending. We think the proffered defenses were rightly overruled, and the judgment for the plaintiffs should be affirmed.

ST. PATRICK'S ALLIANCE OF AMERICA V. BYRNE et al. (Court of Chancery of New Jersey. Oct. 30, 1899.)

BENEFICIAL ASSOCIATIONS SUSPENSION CORPORATIONS-NAME-RIGHT TO USE-OFFICERS-RIGHT TO OFFICE-CONTEST-DETERMINATION.

1. The laws of a beneficial society provided that each branch should pay to the national executive council, within 30 days from February 1st in each year, a sum fixed by the national convention, not to exceed 25 cents per mem

ber. This provision was later changed so as to require payment within 60 days from March 1st of each year to avoid suspension; but this provision did not take effect until April, 1899. The national executive council had power to suspend any subordinate branch only after charges preferred and proved. In July, 1899, the council, by resolution, provided that, in case certain designated subordinate branches did not pay the tax due March 4, 1899, before a certain date, they would be suspended, and, on their failure to pay within such time, suspended such branches. Held, that since, at the time of default, occurring March 4, 1899, there was no law by which such default operated as a suspension, and the resolution of April, 1899, was not retroactive, a defaulting branch could not be legally suspended without a trial on notice, and an opportunity to be heard.

2. A corporation may be enjoined from using and doing business under the same name as another corporation, to the latter's injury, where the latter first adopted the name, and the use by the former would be apt to deceive the public.

3. Equity will not decide which of two sets of officers claiming to be the officers de jure of a beneficial society are entitled to the offices, unless some other equitable matter is involved in and requires the decision of such question.

4. The fact that one of the rival claimants to an office of a beneficial association holds funds which he refuses to pay over to one claiming to be his successor does not give a court of equity jurisdiction to determine their rights to the office.

Bill by St. Patrick's Alliance of America against Joseph Byrne and others to restrain defendants from exercising the functions of officers of complainant. Judgment for defendants.

It appears that the complainant is a beneficial society, with several organizations, the chief of which is the state council, and with a constitution, which establishes the supreme lawmaking power for such an association in a general convention. The subordinate organiThe subordinate organization of the order are councils in each state, district councils, and branches. The national convention consists of delegates from the state and district councils and branches, each state council being entitled to three and each district and each branch to one delegate. A state convention is composed of the president of each district convention, the president of each branch, with one delegate elected from each district and each branch. The district council is composed of its officers, and a pastpresident, and two regularly deputed delegates from the branches comprising the district. The national convention each year elects a council, whose duty it is to suspend any member, branch, district or state council, after charges have been made and proved, which may refuse compliance with the laws; and the suspension of a member shall suspend him from the benefit of the branch or district to which he belongs. On February 6th the general law of the order required each branch to pay to the national executive council, within 30 days from February 1st of each year, a sum to be fixed by the national convention, not to exceed 25 cents for every member on the roll on the 1st day of January of that year. This law was changed by the na

tional convention held in 1899, but by another law the alteration did not go into effect until April, 1899. The national convention at this meeting imposed a per capita tax of 10 cents a member, which became payable by the law already mentioned on March 4, 1899. Branches Nos. 1 to 15, excepting Nos. 7, 12, and 13, of district No. 7, failed to pay this tax. On July 27, 1899, the national executive council passed a resolution that each of the said branches be notified that unless it paid the tax on or before August 15, 1899, the council would suspend it. The resolution was sent to the recording secretary of each defaulting branch. Branches Nos. 1, 3, 10, 11, 14, and 15, failing to pay, were, by resolution, suspended, which resolution was served upon each branch personally, or sent by mail to its president. It is charged that the suspension of these branches disqualified each member of such branch from holding an office in the district convention or council. Among the officers of district council No. 7 at the time of the suspension were Brady, of branch No. 15, William and John Darcy. Burns, and Harwig of branch No. 1, and Mitchell and James Byrne of branch No. 10. This left 10 unsuspended members out of the 17. Acting under color of district law, No. 8 (6 of these 10) made a requisition for a special meeting of the district council, which meeting may be called by a majority of the officers. The council thus organized proceeded to fill the places of suspended members by the election of new officers. It is charged that the suspended members still claim to be officers of district No. 7; that Joseph Byrne pretends to be acting president and Thomas P. Burns claims to be recording secretary, and William Darcy pretends to be treasurer of the said district. It is charged that these parties are proclaiming themselves to be officers of, and ar are exercising the functions of officers of, this district; that they are using the name "District No. 7, St. Patrick's Alliance of America," which they claim is free from the supervision of the complainant; that they are inducing members of the unsuspended branches to become admitted to said suspended branches, and that such members have been deceived into joining the latter, and so have lost the mortuary benefits; that Burns has refused to deliver up the seal to his successor, and is using it to stamp his pretended official correspondence. It is charged that William S. Darcy, treasurer, holds between $70 and $100 belonging to the district, which he fails to turn over to his successor, after due notice to do so. The answering affidavits deny that the treasurer has any fund belonging to district No. 7, and also denies that the defendants are setting up a spurious district No. 7 as an independent organization. They deny that the defendants were suspended with the branches, and their places were legally filled. They set out that the constitution of the society was illegally changed by the national convention, and that the national council is or

2. Where a landlord, to whom a lease by its terms gives a lien on furniture for rent, brings an action for rent, and attaches the furniture, he thereby waives his lien, and subjects it to the right of a prior mortgagee to apply for a sale of the property, and an application of the proceeds in the first instance to the payment of the mortgage debt.

3. The attachment is a bar to a subsequent equitable suit to establish the lien and enforce it.

Bill by B. Thomas Potter and others against Anna E. Greenleaf and others. Judgment sustaining plea of defendants.

Huddy & Easton, for complainants. Harrison A. McKenney and Alfred Wilson, for respondents.

MATTESON, C. J. The complainants have framed their bill on the theory that the lien in their favor created by the lease on household furniture and other property placed on the demised premises by the lessee was a pledge, which it is the purpose of the bill to foreclose. In this we think that they are mistaken; such a lien being merely an equitable lien, and not a pledge. Manufacturing Co. v. Gardiner, 11 R. I. 626. The bill should have been a bill to establish this equitable lien, and for a sale of the property to satisfy it, instead of a bill to foreclose a pledge.

The respondent Stearns, besides demurring to the bill, has filed a plea in bar of the bill, and the other respondents have set up the same defense in their answers. The case is before us, not only on the demurrer, but also on the sufficiency of this plea. The defense set up in the plea is that prior to the filing of the bill the complainants brought their suit at law against the respondent Greenleaf, in the common pleas division of this court for Providence county, to recover the arrears of rent mentioned in the bill, and attached on the writ in that suit all the property referred to in the bill, and on which a lien is claimed. We think the point is well taken, and that the plea must be held sufficient. The attachment of the property by the complainants must be regarded as a waiver of their equitable lien, since the remedy by attachment is inconsistent with the enforcement of such a lien, and by making the attachment they must be deemed to have elected that remedy. The attachment placed the property in the custody of the law, and subjected it to the usual incidents which may follow upon an attachment, such as the right of other creditors to attach it subject to prior attachments, and the right of a mortgagee to apply to the court, in accordance with the statute in such case provided, for a sale of the property, and the application of the proceeds in the first instance to the payment of the mortgage debt, as the respondent Thurber was doing when the bill was filed. It has been held that a mortgagee, even, whose interest in the mortgaged property is superior to that of the holder of a mere equitable lien, waives his right to proceed under the mortgage by attaching the mortgaged property in a suit on the mortgage debt. Haynes v. Sanborn, 45

N. H. 429; Evans v. Warren, 122 Mass. 303; Libby v. Cushman, 29 Me. 429; Whitney v. Farrar, 51 Me. 418. In the first of these cases the court remarks: "If Sanborn had a valid mortgage, he might have asserted his title as mortgagee by taking and holding possession of the goods and disposing of them under his mortgage. But when he attached the mortgaged property he put it out of his power and control, and placed it in the custody of the law. He thereby made it liable to subsequent attachments by other creditors. * It

is quite plain that the two remedies, by attachment and under the mortgage, are inconsistent, and cannot be pursued at the same time and together." And again it is held that if a common carrier sues out, and procures to be levied, a writ of attachment against property on which which he has a lien for freight, he thereby abandons and waives his lien. Wingard v. Banning, 39 Cal. 543. It is true that in the last case the statute required an affidavit to be made by a party, as a condition precedent to the attachment, that his demand was not secured by any lien, pledge, or mortgage, and the defendant had made such an affidavit. But the court in its opinion proceeded, not only on this ground, but also on the ground that if the defendant intended to rely on his lien, and the property had been wrongfully taken from him, his appropriate remedy was by an action either to recover possession of the property, or for its wrongful conversion, instead of instructing the sheriff to seize the property and hold it as security for his demand, and that by pursuing the latter course the defendant clearly abandoned his lien, and elected to rely on his attachment as security. Our opinion is that the plea is sufficient.

RYER v. HYDE.

(Supreme Court of Rhode Island. Nov. 21, 1899.)

HARMLESS ERROR-EVIDENCE.

Error in allowing a witness to testify from a copy of a list of articles is harnless, where it appears on appeal, from an inspection of the record, that the witness testified from memory, independently of the list, to practically all the articles claimed in the suit.

Action by Ina E. Ryer against Jasper G. Hyde. There was a verdict for plaintiff, and defendant petitioned for a new trial. Granted unless plaintiff releases as to a part of the verdict.

Irving Champlin, for plaintiff. Dexter B. Potter and John H. Hogan, for defendant.

PER CURIAM. We think the testimony shows that more property was in the hands of the plaintiff than appears to have been allowed for by the jury, and we therefore grant the defendant's petition for a new trial unless the plaintiff will consent that the verdict be reduced to $500, and take judgment