assignor so long as he pleases, or do any act in respect thereto except such as tends to the most speedy conversion of the assigned estate into cash, is wholly untenable; and the acts of the assignee tending to any other result are in fraud of the creditor, in hindering and delaying him in the realization of what is justly due him, either from his debtor or the assigned estate." And where a stock of goods in a retail business is assigned, the assignee can not continue the business and retail the goods as before, with the view of obtaining higher prices, but must sell them at once. It is even held a breach of trust for the assignee to delay the sale of the property for the purpose of retailing it at a higher price. See, also, Hart v. Crane, 7 Paige, 37; Dunham v. Waterman, 17 N. Y. 9; American Ex. Bank v. Inloes, 7 Md. 380.

It is clear, therefore, that in whatever light we view this transaction,-whether we consider the provisions and terms as contained on the face of the deed of assignment, or whether we view it from the conduct of the parties prior to, at the time, and subsequent to its execution, with the facts and circumstances connected with their management of the property under the deed, as found by the master, we must reach the conclusion that the assignment was fraudulent and void, as to creditors of the firm. The decree of the court below will be set aside, and the cause reversed and remanded with directions to the court below to enter a decree canceling and setting aside the deed of assignment, and for such other orders as may be necessary.

SMITH, C. J., and COLLIER and LAUGHLIN, JJ.,

concur.

[No. 567. August 24, 1895.]

OAK GROVE AND SIERRA VERDE CATTLE COMPANY, PLAINTIFF IN ERROR, V. E. L. FOSTER, RECEIVER OF FIRST NATIONAL BANK, OF DEMING, DEFENDANT IN ERROR.

PROMISSORY NOTE OF CORPORATION, EXECUTED BY TREASURER-ASSUMPSIT-PLEA-DENIAL OF EXECUTION OR AUTHORITY TO EXECUTE-VERIFICATION.—In a suit against a corporation in assumpsit on a promissory note, purporting on its face to be the obligation of the company executed by its treasurer, where the defendant pleaded it had neither executed the note nor authorized any one to execute it in its behalf, which was verified by the affidavit of its president, such plea so verified constituted a denial under oath contemplated by section 1922, Compiled Laws, enabling either party to a suit to take as admitted by the other party the genuineness and due execution of any written instrument referred to in a pleading, where such instrument or copy thereof is attached to or incorporated in such pleading, unless in another pleading or writing, filed in the case, the opposite party denies the same under oath; and it was error to strike out such plea on the ground that it was applicable only to instruments under seal. In Luna v. Mohr, 3 N. M. (Gil.) 63, this court held that such plea was applicable only to such instruments. But there is no reference in that opinion to section 1922 supra, and it does not appear whether said section, enacted in 1882, was in force at the time of the filing of the plea of non est factum in that case.

ID. CORPORATION, AUTHORITY OF TREASURER TO EXECUTE NEGOTIABLE PAPER IN NAME OF.-The treasurer of a corporation is not such an officer as is vested with an implied power to execute negotiable paper in its name. Daniel, Neg. Inst., sec. 394.

ID. EVIDENCE, ADMISSIBILITY OF.-In such action, where it appeared that the treasurer of the defendant company had no authority to execute or discount paper, evidence that that was his first attempted exercise of authority to execute and discount its note was admissible, and should have been permitted to go to the jury.

ID.-BONA FIDE HOLDER.-Where, in such action, it appeared that the note sued on was executed without authority by the treasurer of the defendant company, who was also the president of the plaintiff bank, in consideration of the transfer to his personal account of an acceptance of a third party, given as collateral security for a loan, and that the said president, assuming to act for the discount committee of the bank, discounted said note and credited it on the acceptance,-the bank was not a holder for value without notice.

ERROR, from a judgment in favor of plaintiff, to the Third Judicial District Court, Grant county. Judgment reversed.

The facts are stated in the opinion of the court.

T. F. CONWAY, A. A. JONES, and FRANK SPRINGER for plaintiff in error.

The court erred in striking out the second plea, denying execution of the note sued on. Sec. 1922, Compiled Laws, N. M. 1884.

Any defense which at common law would be available under the general issue, and which does not involve the authenticity of the signature, was available to the defendant in this case. Snyder v. Van Doren, 46 Wis. 602; Neilson v. Schuckman, 53 Id. 638; Ames v. Quinby, 106 U. S. 342; Luna v. Mohr, 3 N. M. (Gil.) 63.

The note on its face purported to be executed by an agent, and it is elementary that "if the instrument was executed by an agent, his authority must be proved, together with his handwriting." 2 Greenlf. Ev., sec. 158.

Such an agency can not be established by the declarations of the agent. Marvin v. Wilber, 52 N. Y. 270; Peoples Bank v..Church, 109 N. Y. 511.

Consideration means not only benefit to the promisor, but also loss or disadvantage to the promisee; but the latter must accrue at the request or on the motion of the promisor. 1 Par. Con. 431.

When it appeared that the note was executed by Dane as the agent of both parties, and was given to lend the credit of the corporation without consideration the burden was on the plaintiff to show express authority for it. 1 Morawotz, Private Corporations, sec. 423. See, also, Bank v. Bank, 95 U. S. 559; Bank

v. Waterworks Co., 9 N. Y. 859; Craft v. S. B. R. R. Co., 150 Mass. 207; Wahlig v. Standard Pump Mfg. Co., 9 N. Y. 739.

The fact that Dane represented both parties makes the note, under the proved facts, void. In matters of discretion an agent can not so act. Bish on Con., sec.

337.

And if he does or contracts in the name of his principal for his own interest, the principal is not bound. Claflin v. Bank, 25 N. Y. 293; People v. Overyssel, 11 Mich. 222; Mercantile Trust Co. v. Insurance Co., 8 Mo. App. 408; Wardell v. Union Pacific, 103 U. S. 651; Thomas v. Brownsville, 109 Ib. 522.

The giving of the note by Dane, even if he had authority to execute notes, was such a gross breach of trust, and so palpable a fraud upon the cattle company, that it created no liability. Robertson v. Chapman, 152 U. S. 673.

The bank is chargeable with absolute knowledge of the nature of the transaction. It was known to the cashier, and it was done by the president, who had active management of its business, and had charge of discounting paper. Atlantic Mills v. Indian Mills, 147 Mass. 268, 28 Am. and Eng. Corp. Cases, 555. See, also, Smith v. Los Angeles, etc., 78 Cal. 269; Chemical Nat. Bank v. Wagner, 42 Am. and Eng. Corp. Cases, 667; Wilson v. R. R. Co., 120 N. Y. 145, 32 Am. and Eng. Corp. Cases, 187; Claflin v. Farmers Bank, 25 N. Y. 293; Garrard v. Pittsburg R. R. Co., 29 Pa. St. 154; Chew v. Mining Co., 2 Fed. Rep. 5.

SUPPLEMENTAL BRIEF FOR PLAINTIFF IN ERROR.

The affidavit denying the execution of the note was a sufficient denial of the signature. Its langauge is not to be subjected to the same liberal construction as that of the declaration and pleas. Boone, Code Pl.,

sec. 34; McCormick v. Bay City, 23 Mich. 457; Anderson v. Walter, 34 Id. 113; Haight v. Arnold, 48 Id. 513. See, also, Ludlow v. Barry, 22 N. W. Rep. (Wis.) 140; Neilson v. Schuckman, 11 Id. 44.

Section 1914, Compiled Laws, mentions the denial of the signature, section 1915 the denial of the execution, and section 1922 mentions both the signature and execution, while the proviso of this section mentions the execution only, and the reasonable view is that the legislature used the words "signature" and "execution" as synonymous.

Even if Dane were treasurer, there is no proof that, under the by-laws, or by any resolution of the directors of the Oak Grove Company, he was given any authority to execute notes of the company; and he has no such implied authority as such. Page v. Falls River, etc., 31 Fed. Rep. 257; Morawetz Corp., sec. 251; Foster v. Ohio-Colorado Reduc. Co., 17 Fed. Rep. 130; People's Bank v. St. Anthony, 109 N. Y. 512.

Though a note may have the genuine signature of one having authority to sign it, if the obligation was issued to, or secured by, plaintiff without consideration, through fraud, breach of trust, misrepresentation, or mistake, they may be shown though no affidavit be filed. Neilson v. Schuckman, 53 Wis. 638, 11 N. W. Rep. 44; Towle v. Seaman, 42 N. W. Rep. 1117; Freeman v. Ellison, 37 Mich. 459; Spicer v. Smith, 23 Id. 26; Ames v. Quinby, 106 U. S. 342.

The cashier of the bank testified to his knowledge of the infirmities of the $6,000 note, and his knowledge. was the knowledge of the bank. Morawetz, Corp., secs. 253, 254; Loving v. Brodie, 134 Mass. 453; 3 Am. and Eng. Corp. Cases, 277; Merchants Bank v. State Bank, 10 Wall. 604; Branch Bank v. Steele, 10 Ala. 915.

The clause in the note stipulating for ten per cent attorneys' fees is in the nature of a penalty, and assumes and determines the amount of damages to be