Usually when one of two parties equally agent for the sale of the machines, and a statement of his ownership of the farm, and he believed he had only signed them. innocent must suffer, the law leaves the loss where it chanced to fall. In a case like this if the law should assist either party on the ground of mutual mistake, it would not be the drawees. This would be to reverse the rule of commercial law, and transfer from the acceptor to the payee the responsibility which the former assumes by acceptance and which the law | leaves there. He says that after signing the agreement in duplicate, the agent asked him as to his post office address, how far he lived from Springfield, and as to how much land he owned, the answers to which he wrote on a paper double the size of the note sued on, and asked him to sign the paper that the Company The judgment must be reversed with could see he was responsible. That he A new trial ordered. costs. Opinion by Cooley, J. NEGOTIABLE PAPER. SUPREME COURT OF ILLINOIS. Sims v. Bice. Decided in July, 1873. Fraud in procuring signature to note. signed the paper, supposing it was what it was represented. He swore that he could read printed matter and writing with difficulty. The Bill of Exceptions states that on the trial below he read the note to the jury without difficulty. We think it clearly appears from the evidence that the note was signed under the belief that it was an entirely different instrument, and that he was incurAppeal from the Circuit Court of San-ring no liability in signing it. As begamon County. tween the original parties the case clearly falls within the provisions of the Statute. Action before a Justice of the Peace of Sangamon County, on a promissory note, and judgment for defendant. Appeal from that judgment to the Circuit Court, and on trial, verdict for defendant. The note sued on was procured from defendant while he was ploughing in the field with a pair of mules. The party who obtained the note of defendant, pretended to give him an appointment as local agent to sell machines for the Kalmazoo Manufacturing Company. The appellants appear to be holders of the note before maturity, whether by purchase at discount or in the ordinary way of trade does not clearly appear. The defence below, was, that the note was obtained by fraud and circumvention. Held, The only question is whether the evidence sustains the verdict. But the appellants claim they are innocent holders before maturity, and should be protected unless the appellee observed a high, degree of caution in executing the note, that he failed so to act and should be held liable to them. When a party executes a note he must be diligent and use all reasonable means to prevent a fraud, or he will be liable to innocent holders before maturity. He is not, however, required to use every possible precaution, but that caution expected from men of ordinary prudence. In Taylor v. Atchison, 54 M. 196, it was held that the mere fact that a party can read will not prevent him from alleging even against an assignee before maturity that the note was obtained by On one side is the note, on the other fraud and circumvention, but he must the oath of the defendant. He swears that he only intended to sign an agreement appointing him an use reasonable and ordinary precautions to avoid imposition. In this case the evidence tended to show that the appellant did not act recklessly, but on the contrary, he commenced reading the paper, and his team becoming restive he was compelled to desist to keep them from running away. Again, the appellants were dealing with a stranger when they took the note, and if they knew he was an agent selling machinery, it was enough to arouse their suspicions. under the assurance that he would use them only to make a statement of the subscriptions, and then return them. But he delivered them to the Company, and the mortgage was recorded and the note sold. On the trial the Court refused the folfowing request of the defendant to charge the jury:-"To make the defendant liable on the note, it must have been intended to be put in circulation by deIn the case above referred to, Taylor livery, or so put in circulation through v. Atchison, it was heid that the assignee some negligence or fault on his part, equally with the maker, is bound to use which contributes to, or did, put the due diligence, that when agents for the same in circulation," and the defendant sale of patent right, who are strangers, excepted. offer to sell promissory notes, a prudent man would have his suspicions aroused and would protect himself by proper inquiries. Both parties must exercise prudence and either failing to do so will render him liable. The evidence, we think, tended strongly to sustain the verdict. The preponderance shows that the appellee acted as prudent men usually do, and we cannot say the evidence fails to sustain the verdict. - "If And the jury were instructed:Powers, after placing the note in the safe, although pretending that he had no authority to do so, directed the person in charge of the safe to deliver the note to the agent of the payee, the plaintiff, if an innocent holder for value before maturity, is entitled to recover;" to which the defendant excepted. There was judgment for the plaintiff, and On appeal. Held. 1. That the instrument was not The judgment of the Court below is negotiable. Though it was in the form of sustained. Opinion by Jackson, J. SUPREME COURT OF WISCONSIN Roberts v. McGrath. Decided at June Term, 1875. Promisory note. Delivery. Action on a promisory note. Defence. That the note had never been delivered. In 1856 the defendant, with other citizens of Grand Rapids, subscribed conditionally to the stock of the Milwaukee and Horicon R. R. Co. and, as the others did, gave his promissory note, secured by a bond of mortgage, to be used in the payment of his subscription when the conditions should have happened. The instruments were deposited with a third party, Powers, who held them subject to the control of the makers. A short time after the agent of the Railroad Company procured possession of these instruments negotiable paper, it was not in fact negotiable; and commercial paper must be in fact negotiable, to come under the rule of the law merchant. 2. The instrument had no legal inception. It had not been delivered. It was not held by Parsons in escrow, but was simply lodged in his safe, subject to the control of the maker. 3. The court erred in refusing the request of the defendant to charge. 4. There was no evidence to show that Powers had any authority to deliver the note, or that in fact, that he did direct its delivery. 5. The question of the negligence of the defendant is not before the court. That will be a question for the jury when the case is tried again. Judgment reversed, and the case remanded for another trial. Opinion by Lyon J. POSSESSION. That the plaintiff's mortgage is a lien N. Y. SUPREME COURT-GENL TERM, superior to the defendants life-lease; that Appeal from a judgment entered on an action brought to foreclose a mortgage. The defendant, Rachel A. Fenton, was the owner and occupant of a house and lot, and in 1866 she conveyed it to defendant John B. J. Fenton in fee. At the time of the grant the grantee made a lease for life to the grantor at an annual rent of $100, and her possession was not broken. This lease was not recorded until in 1874. In 1871 the plaintiff, after examining the liens, and without notice of the lease, and on the information of the grantee, whom he asked as to liens, that there were no liens, lent the grantee $1500, and took to secure the return of the the plaintiff recover costs of the defendant, and that the defendant Rachel Fenton do not recover costs of the plaintiff. Costs of the appeal to the plaintiff. Ordered accordingly. Opinion by Tappen, J. PRACTICE. SUPREME COURT OF THE UNITED STATES. The Philadelphia and Southern Mail Decided at October Term, 1875. Depositions taken on commission from Circuit Court after appeal to Supreme Court. Rule established in the case of The Mabey. Appeal from the Circuit Court for the money a mortgage which was recorded, United States for the District of Louisi at once. ana. The motion in these cases to make the deposition, taken since the appeal, a part of the record is denied. They were taken under a commission issued from the Circuit Court. Further proof has not been ordered by this Court. No such order would have been granted if application therefor had been made, unless a sufficient excuse was shown for not taking the evidence in the usual way before the Court below. This was the rule established in the case of The Mabey, 10 Wall, 419. We cannot admit depositions taken under a commission from the Circuit Court, exbeen made. cept on a similar showing. This has not Leave is granted to renew the motion if the defect can be supplied. Opinion by Mr. Chiej Justice Waite. U. S. CIRCUIT COURT-DISTRICT OF 4. "The decree should, therefore, be modified, and declare as follows, to wit: OREGON. Moreland v. Marion County. Decided Oct. 4, 1875. Irrelevant answer. signed. may consist of either a denial of the' plaintiff's right to recover, by controverting any and all of the material alleAnswer not duly gation of the complaint, or by an averment of such an estate in the premi Action to recover possession of real ses, or license or right to the possession property. This was an action brought by a citizen of California, against the defendant, a county of the State of Oregon, to recover the posession of block six in the town of Salem, in said county, alleged to be worth $30.000, and $500 damages for witholding the possession. The points involved in the decision of the court, seem to be mere matters of practice, and not the merits of the claim. thereof in the defendant as is inconsistent with a present right of possession in the plaintiff, or both. The answer of the defendant substantially admits that the plaintiff is the owner in fee of the premises, but undertakes to set up in bar of the action to recover possession a dedication of the same to the use of the defendant by Chloe A. Wilson, under whom it is alleged the plaintiff claims. The attempt to plead a license or right to the possession in the defendent consists of a detached narrative of the settlement and occupation of Donation Clause No. 44, by Willson and wife from 1844 to 1874, including their acts and doings with reference to block six. The statement of new matter in the answer is required to be "concise" and to constitute a "defence" to the action. The answer of the defendant, first denies the material allegations of the complaint, except those concerning the citizenship of the parties, and the value of the property. It contains also, a second defence, styled "a further and separate answer." This second answer is divided into twelve paragraphs, and consists of a long account of the settlement by one W. II. Willson and Chloe A. Willson his wife, of a large tract of land Like the statement in the complaint of described in the U. S. surveys as Donation the facts constituting the cause of acClause No. 44; of their occupation and tion" it must be limited to the ultimatė cultivation thereof; the granting of a facts of such defence, and should not patent therefor by U. S. to said Willson contain the evidence of them, Wooden and wife; the subsequent laying off vs. Stein, 10, Howe. 50. by the said Wilson, with the knowledge. and consent of his wife, of the town of Salem, a part of said tract; the dedication of block six of the plot of said town as public lot, and the erection of a court house thereon; the sale of lots in said so pleaded the nature and duration of town, with reference to the dedication such estate or license or right to the posof said public lot (block 6), by Willson session must be put forth with the cerduring his life, and by his wife after his tainty and particularity required in a death; the death of said Willson and complaint. his wife also; and alleging that whatsoever interest the plaintiff had, was derived for the said Chloe A. Willson, and acquired since the erection of the said Court house, on said lot. By the Court, Deady, J. The defendant cannot be allowed to give in evidence any estate in himself or another in the property, or any license or right to the possession thereof unless the same be pleaded in his answer. If : If the defendent relies upon a right to the possession of the property arising from a dedication thereon by Chloe A. Willson to itself for the purpose of building and maintaining thereon forever a Court house, it should plead that fact, In an action of this kind the defence as directed by the Statute, and not what 1 counsel may consider the evidence of it. this action by another attorney, and The motion to strike out the second defence as irrelevant, must therefore be allowed. Much of it is immaterial even as evulence of a dedication by Chloe A. Wilson, while none of it is relevant as an allegation or pleading to the complaint. Sec. 945 of the Oregon Civil Code prescribes the duties of the district attorney as follows: "He shall prosecute all penalties and forfeitures to the State which may be incurred in any County in his district, and for which no other mode of prosecution and collection is expressly provided by statute, and in like care prosecute, or defend, as the case may be, all actions, suits, or proceedings in any County in his district, in which the State or such County may be a party." The answer in this case is suscribed by "atcertain attorneys of this Court as torneys for defendant." The counsel for the defendant claimed on argument, that the facts stated in the defence, were also relied upon as a bar to the action; was of estopThough the Court may not properly tako pel-but they are not pleaded as such judicial knowledge of the fact that any -there is no fact stated in the com- particular person is district attorney for plaint which the defendant alleges the that district, or that neither of the attor plaintiff ought not to be permitted to neys who have subscribed the answer is show. A plea of estoppel must allege that officer, yet the subscription to the that the plaintiff ought to be precluded answer does not profess to be made by a from showing some fact or matter stated district attorney, as it should, if made in the complaint to which the estoppel is by one. interposed, because, of some other fact or matter alleged in the plea which constitutes the estoppel. A further motion is submitted, to strike at the whole answer upon the ground that it is not duly subscribed. The 79th Sec. of the Oregon Civil Code provides that "every pleading shall be subscribed by the party or his attorney," while the 103d Sec. declares that any pleading "not duly subscribed" may be stricken out of the case. The motion asserts that the answer is not signed by the defendant's attorney, and it was substantially admitted on argument, that neither of the attorneys subscribing the answer, is the district attorney for the district including the defendant. Until the contrary appears, the Court will presume that when one of its attorneys subscribing a pleading as the attorney of a party to a proceeding before it, he is authorized to do so. But in the case of a public corporation like the defendant, which has a regular official attorney appointed by law, there is no room for the presumption that any other attorney has authority to represent it. The counsel for the plaintiff, in support of this motion, contended that the district attorney for the judicial district, which includes Marion County, is the attorney for the defendant. That he is appointed such attorney by means of a public election held in the district in pursuance Admitting even, what is very doubtful, of law, and the defendant cannot disre- that a county may authorize an attorney, gard such appointment, and appear in other than the district attorney, to rep |