of the personal representatives of the decedent." (Hutchinson vs. Smith, 7 Paige, 34; Newell vs. Townsend, 6 Simon's R., 419.)

It is held by the same authority that the surviving partner is in fact "a trustee in the possession of a fund for the payment of the partnership debts, and the settlement of the partnership concerns. The balance is to be distributed equally between the surviving partner and the representatives of the deceased partner. 'It is only the decedent's share of such balance which belongs to his representatives as part of his estate.' (Egberts vs. Wood, 3 Paige's Ch. R., 525; Wilder vs. Keeler, 3 Paige, 172.) The administrator of the surviving partner stands in the same position as the surviving partner in his lifetime. Though he has the legal title to the partnership assets, yet they are assets of the firm, and not of his intestate, and should neither be inventoried as property of his intestate, nor be accounted for as property of his intestate. The administrator is in fact a trustee, whose duty it is to collect the partnership property and pay the debts of the firm, and, after the surplus is ascertained and the interests of the partners therein settled, pay the share of the partner first deceased to his personal representatives, and bring the share of the partner last deceased into the accounts of his estate." (Smith vs. Jackson, 2 Edwards' Ch. R., 28; Case vs. Abeel, 1 Paige's R., 395.)

If such surviving partner die testate, a question might arise as to whether his executor would administer the partnership assets, or an administrator should be appointed for the purpose. This might depend on the statutes of wills. (See 1 Williams on Executors, 6th Am. ed., 723, [653, 654;] Fyson vs. Chambers, 9 M. & W., 460; Morgan vs. Knight, 15 C. B., N. S., 669.)

The executor would seem to be the proper representative. (Calvert vs. Marlow, 18 Ala., N. S., 72; Peters vs. Davis, 7 Mass., 257; McCartney vs. Nixon, 2 Dallas, 66; 1 Williams, Ex'rs, 145.)

(2.) b. As to municipal corporations, quasi corporations, (e. g., counties,) and similar political bodies, the "regulations" are silent.

Whenever there is for any of these a fiscal officer authorized to collect money, he will be required to produce proper evidence of his authority, with his indorsement.

Where there is no such officer, drafts can only be indorsed by the proper officers acting for the political body, and the indorsement should show that it was made by all or by a quorum of the members at a regular meeting, or by a quorum at a special meeting, of which all the members had notice. And there can be no delegation of the power to indorse, or of other official duties, unless authorized by law. (Slicer vs. Elder, 2 Cleveland Western Law Monthly, 90; Hobson vs.

McArthur, 16 Pet., 182; Pease vs. Sandusky, 2 Western Law Journal, 559; Sedgwick on Stats., ch. VIII; Young vs. Buckingham, 5 Ohio, 485; Matter of Well's Road, 7 Ohio St., 19; Merchant vs. North, 10 Ohio St., 251; 1 Cow., 238; 7 Id., 290, 326, 402, 463, 526, 533; 26 Conn., 192; 21 How., 544; Willcock on Municipal Corporations, passim; 6 T. R., 388; 1 B. & P., 229; 21 Wend., 211; King vs. Buller, 8 East, 388; 9 Id., 246; King vs. Williams, 2 M. & S., 141; 2 N. H., 123, 485; King vs. Norris, 1 Bernard R., 385; 7 S. & R., Pa., 517; Orvis vs. Thompson, 1 Johns., 500; Green vs. Miller, 6 Johns., 38; Ang. & Am. on Corp., ch. 14; 2 Kent, 236; 1 Kyd, 422; 8 Mass. R., 496; 14 Id., 148; 1 Metc., 409; Gridley vs. Barker, 1 Bos. & Pull., 236; Potter on Corporations, passim.)

As to what is evidence of: 7 Op., 594; Sedgwick on Stats., 330; Dillon on Municipal Corporations, secs. 60, 215-230, 567, 618; Lyon vs. Jerome, 26 Wend., 496.

Where the law requires a record of corporate or official acts, it becomes evidence thereof. (Dillon on Municipal Corporations, sec. 241; 13 Conn., 227; 6 Wend., 651; 9 Cow., 205; 1 Dutch., N. J., 73; 4 Denio, 392; 10 Johns., 154.)

And sometimes when the law does not, in terms, require such records, they may be evidence. (1 Pa. St., 224; 3 N. H., 499.)

But, generally, such officers cannot make evidence except so far as the law under which they act, in terms, or by reasonable inference, so authorizes.

(3.) There are cases in which the "regulation" somewhat modifies the common-law rule.

a. Thus it is said that

"In England the inclination has been to extend the same principle [of requiring the indorsement of all who are joint assignees in bankruptcy] by analogy, to assignees of an estate in bankruptcy." (Morse on Banking, 290; Grant, 28; 2 Parsons' Cont., 6th ed., 616; Innes vs. Stephenson, 1 Moody & Ryan, 145; Can vs. Reed, 3 Atk., 695; Stone vs. Marsh, Ryan & M., 364; Ex parte Hunter, 2 Rose, 363; 1 Meriv., 408; Ex parte Collins, 2 Cox, 427.)

This question could not arise in banks under our recent bankrupt act, which directed how the deposits of drafts and drafts of assignees should be made, the checks requiring the signature of all the assignees, and to be countersigned by the Register in Bankruptcy. (Rule XXVIII, supplementary to act of March 2, 1867.)

But Parsons says "this rule as to bankers is peculiar." (2 Cont., 616 n.)

"It is a general rule," says Mr. Justice Maule, "that a man may pay a debt to one of several persons with whom he has contracted jointly.

In the case of a banker, he cannot do so; but that arises from the particular contract which exists between him and his customer." (Husband vs. Davis, 10 C. B., 645; 4 Eng. L. & Eq. R., 342; Smith vs. Jameson, 1 Esp., 114; Bristow vs. Eastman, Id., 172; Williams vs. Walsby, 4 Id., 220; Stewart vs. Lee, Moody & M., 158.)

In some cases, the title which a deceased had in respect of a special property in goods is transmissible to his executor or administrator. Thus, a bankrupt died having goods to which his assignees were entitled; his executor or administrator might recover them from a stranger, for there was a good title in the bankrupt, as against all but the assignees. (1 Williams, Ex'rs, 6th Am. ed., 653, 654; Hyson vs. Chambers, 9 M. & W., 460; Morgan vs. Knight, 15 C. B., N. S., 669.)

Upon the death of the assignee of an insolvent, under the English insolvent act of 1 and 2 Vict., c. 110, his special property vested by operation of law in his executors, until a new assignee was appointed. This act, so far as it related to insolvent debtors, has been repealed by the "Bankruptcy Repeal and Insolvent Court Act, 1869." (Fulcher vs. Howell, 11 Sim., 100; 1 Williams, Ex'rs, [654,] 723.)

b. As to ordinary trustees, it has been laid down as the general rule that

"If the deposit [in bank] is placed to the credit of divers persons, as trustees, the signature of all [to a check to draw funds] is indispensable to the validity of the check." (Morse on Banks and Banking, 2d ed., 290; Grant on Bankers and Banking, 30; Shortbridge's case, 12 Ves., jr., 28.)

The rule as thus stated is changed by the regulation.

The answer to the inquiry referred to the First Comptroller is, that when a draft is issued to a partnership firm, and all the members have died, the legal representative of the member who died last is the proper person to indorse and collect it.

TREASURY DEPATMENT,

First Comptroller's Office, September 10, 1880.

The following is the full circular relating to drafts:

CIRCULAR No. 25.

Instructions of the Treasurer of the United States relative to the indorsement and payment of Drafts of the Treasury and Post-Office Departments.

1878.

DEPARTMENT No. 112.
Treasurer's Office.

TREASURY OF THE UNITED STATES,
Washington, D. C., October 22, 1878.

Treasury or Post-Office drafts must not be paid until the indorsements conform to the following regulations:

1. The name of the payee, as endorsed, must correspond in spelling with that on the face of the draft; no guarantee of an indorsement,

imperfect in itself, can be accepted. If the name of a payee, as written on the face of a draft, is spelled incorrectly the draft should be returned to the Treasurer U. S. for correction.

2. Indorsements by mark (×) must be certified to by two witnesses, giving their places of residence.

3. Indorsements by executors or administrators must be accompanied by certified copies, under seal, of letters testamentary or letters of administration, as the case may be.

4. Payees and indorsees must indorse by their own hands; officials, officially with full title; firms, the usual firm-signature by a member of the firm, not by a clerk or other person for the firm.

5. Every indorsement must be by the proper written (not printed) signature of the person whose endorsement is required.

6. Powers of attorney for the indorsement of drafts in payment of claims must state the number, date, and amount of draft, and number and kind of warrant, and be dated subsequently to the drafts; must be witnessed by two persons, and must be acknowledged by the constituent before the Treasurer of the United States or an assistant treasurer, a judge or clerk of a district court of the United States, a collector of customs, a notary public under his seal, or a justice of the peace or commissioner of deeds; if before either of the two latter, the certificate and seal of the county clerk as to the official character and signature of the justice or commissioner is required. If executed in a foreign country, the acknowledgment must be made before a notary public, with his seal attached, or a Ü. S. consul or minister. The officer taking the acknowledgment must certify that the letter of attorney was read and fully explained to the constituent at the time of acknowledgment. (See section 3477, Revised Statutes.)

7. Evidence of authority to indorse for incorporated or unincorporated companies must accompany drafts drawn or indorsed to the order of such companies or associations. Such evidence should be in the form of an extract from the by-laws or records of the company or association, showing the authority of the officer to indorse, receive moneys, &c., for the company, and giving his name and the date of his election or appointment, which extract should be certified to by the secretary or president of the company, and its seal be affixed, and the certificate should state that such authority remains unrevoked and unchanged. If the company has no seal, the extract should be certified as correct by a notary public or other competent officer, under his seal.

8. Drafts will be paid to any one of several joint holders or co-trustees, executors, administrators, or guardians, but in the execution of a power to a third party to collect, all must join. In case of the death of either, the survivors will be recognized as having full authority, upon due proof of such death and survivorship.

The following is the form of power of attorney approved by the Department:

FORM 76-ASSISTANT TREASURER.

To be acknowledged by the constituent before the Treasurer of the United States or an assistant treasurer; a judge or clerk of a district court of the United States; a collector of customs; a notary public or a clerk of any court of record under his seal; or a justice of the peace or commissioner of deeds. If before either of the two latter, the certificate and seal of the county clerk as to the official character and signature of the justice or commissioner is required. If executed in a foreign country, the acknowledgment must be made before a notary public, with his seal attached, or a U. S. consul or minister.

appoint

Power of Attorney to Collect Money due on Draft.

Know all men by these presents, That attorney to indorse* dated warrant No.

States Treasury draft No.

of

do

name on United dollars,

18-, for
and to receive the amount for

hereby ratifying and confirming all that may be lawfully done in virtue

hereof.

issued on

on this day of

[SEAL.]

[SEAL.]

, personally appeared

named in the foregoing

letter of attorney, who acknowledged the said letter of attorney to be act and deed; and I do hereby certify that the said letter of attorney was read and fully explained to the said at the time of acknowledg

ment.*

In testimony whereof, I have hereunto set my hand and affixed my seal, the day and year aforesaid.

The following is the provision of the Revised Statutes on the subject: "SEC. 3477. All transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and whatever may be the consideration therefor, and all powers of attorney, orders, or other authorities for receiving payment of any such claim, or of any part or share thereof, shall be absolutely null and void, unless they are freely made and executed in the presence of at least two attesting witnesses, after the allowance of such a claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof. Such transfers, assignments, and powers of attorney, must recite the warrant for pay

*In the form prepared by the First Comptroller, promulgated January 1, 1881, the certificate must show some additional facts. See the form in Appendix.