another suit, against one not a party or privy to the record. This rule is applied not only to civil cases, but to criminal cases and to public judicial proceedings, which are of the nature of judgments in rem.

If an indictment for an assault and battery by A. upon B. is prosecuted to a conviction, the judgment for some purposes is conclusive evidence. Thus, upon a subsequent indictment for the same offence, it would be conclusive in favor of A. that he had been once tried for the same offence and convicted, and that he could not again be put in jeopardy therefor. But if A. sues B. for the same assault and battery, it cannot be doubted that it would be incompetent to introduce the record in the criminal case as evidence of the offence. For this purpose it is "inter alios acta." B. was no party to that proceeding. In theory of law he was not responsible for it or capable of being benefited by it: 1 Starkie on Evid. 317, m.

So, if B. should afterwards be indicted for an assault upon A., arising out of the same transaction, the record would not be competent evidence to show that A., and not B., was in fact the offending party.

In some states provision is made for the admeasurement and setting apart of dower to the widow of a deceased person. Officers are appointed for this purpose, who make their certificate awarding particular property to her use, and file their report in the proper office. Although this certificate is judicial in its character and assumes that the deceased had title to the property described, and the certificate is valueless except upon that supposition, it has still been held that it is no evidence of title, and that the title must be proved as in other cases: Jackson v. Randall, 5 Cowan 168; Same v. Ely, 6 Id. 316.

It has been held that a comptroller's deed for the non-payment of a tax due the state is not even primâ facie evidence of the facts giving him the right to sell, such as the assessment and non-payment of the tax, although they are recited in the deed and this deed is in compliance with the statute. These facts must have existed to give a right to sell, but they are not established by the deed. They must be made out by independent proof: Tallman v. White, 2 N. Y. 66; Williams v. Peyton, 4 Wheat. 77; Beekman v. Bigham, 5 N. Y. 366.

A certificate of naturalization issues from a court of record when

there has been the proper proof made of a residence of five years, and that the applicant is of the age of twenty-one years and is of good moral character. This certificate is, against all the world, a judgment of citizenship, from which may follow the right to vote and hold property. It is conclusive as such, but it cannot, in a distinct proceeding, be introduced as evidence of the residence or age at any particular time or place, or of the good character of the applicant: Campbell v. Gordon, 6 Cranch 176; Stark v. Chesapeake Ins. Co., 7 Id. 420.

The certificate of steamboat inspectors, under the Act of Congress of 1852, is evidence that the vessel was inspected by the proper officer, but it is held that it is not evidence of the facts therein recited, when drawn in question by a stranger, although the officer was required by law to make a return of such facts: Erickson v. Smith, 2 Abb. Ct. of App. N. Y. 64; 38 How. Practice 454.

So it has been held that where a sheriff sells real estate, giving to the purchaser a certificate thereof. Although there can lawfully be no sale unless there be a previous judgment, and although the sale is based upon and assumes such judgment, and although the law requires the sheriff to give such certificate, the recital by the sheriff of such judgment furnishes no evidence thereof. It must be proved independently of the certificate: Anderson v. James, 4 Rob. Sup. Ct. 35.

So, on an application by a wife for alimony, pending a divorce suit prosecuted against her, the fact that her husband has recovered a verdict against a third person for criminal connection with her, has been held not to be even presumptive evidence of her guilt: Williams v. Williams, 3 Barb. Ch. 628.

Authorities of this nature might be greatly extended. Enough has been said to demonstrate that neither upon principle nor authority was it proper, in the individual suit of Mrs. Tisdale against a stranger, to admit letters of administration upon the estate of her husband as evidence of his death.

The judgment must be reversed and a new trial had.

On the general subject of the conclusiveness of the judgment of a probate court and its effect on third parties, see Roderigas v. East River Savings Inst. and note, ante, p. 205.-ED.

VOL. XXIV.-53

United States Circuit Court, Northern District of Illinois. ESSEX COUNTY NATIONAL BANK v. BANK OF MONTREAL.

It is the duty of a bank to whom a check is sent for collection to present it and demand payment within the time prescribed by law, and if not paid notify the proper parties of its dishonor.

A bank upon whom a check is drawn is liable, before acceptance, only to the drawer; it cannot be made liable to the holder except by its own consent.

If a bank to whom a check is sent for collection, instead of demanding immediate payment, accepts a certification of it, that will create such a new relation between the parties as to discharge the drawer, and will render the bank accepting the certification in lieu of payment, liable for any loss arising to the holder from the failure of the bank upon which the check was drawn.

The party to whom the check is endorsed for collection, is the proper plaintiff, and an amendment, under the practice in Illinois, is allowable at the trial, substituting such party as plaintiff.

THIS was an action to recover from defendant the amount of a check sent to it for collection. The facts sufficiently appear in the opinion.

Hitchcock & Dupee, for the plaintiff.

Dexter & Smith, for the defendant.

HOPKINS, J.-P. Becker & Co., of Chicago, on the 3d day of August 1875, sent their check on the State Street Savings Bank to T. B. Peddie & Co., of New York, for $856.37. It was endorsed by the payees to the plaintiffs and by the plaintiffs was endorsed to the German-American Bank, New York, for collection, and by that bank in the usual course of business was endorsed to the Bank of Montreal, of Chicago, the defendant, for collection. It belonged to the plaintiff in this case, but the plaintiff having no correspondent or agent in Chicago, it employed the GermanAmerican Bank to collect it, and that bank employed the defend ant, according to usage among banks located at different points. The Bank of Montreal received the check about 11 o'clock on the morning of the 9th of August, and soon thereafter sent it by its messenger to the State Street Savings Bank for payment. The messenger presented it at the counter to the teller, who informed him that the cashier was not then in, and that he could not pay in his absence. The messenger took the check away, and later in the day, called again with it and presented it to the same party again, and he made the same reply, that the cashier was out, and

it

he could not pay it until he came in. The messenger then asked the teller to certify it, which he did in the usual mode of certifying checks by that institution, and thereupon the messenger took the check away with him. The teller, when he certified the check, charged the amount of it up to the drawer's account, which then exceeded the amount of the check, and credited certificate account with amount of the same. The defendant also sent the check for payment on the next day at about 11 o'clock, and it was not paid because the bank had not the funds to pay it. The bank kept its doors open during all of the 10th of August, but had not the funds to pay the check, and failed to open after that day. The testimony is not very clear as to whether the bank had currency enough on the 9th to pay the check, if payment had been insisted upon, but as this point is not material in the view I have taken of the law of this case, I shall not stop to settle it; when it was presented after certification it was not paid because the bank was insolvent.

The defendants had the check to collect. It was transmitted to them for that purpose, and their duty as collecting agents was to present and demand payment within the time prescribed by law, and, if not paid, notify the proper parties of its dishonor. If that had been done, the rights and remedies of all parties liable upon it, when it came into their hands, would have remained intact. If loss occurs by the acts or omissions of the party thus assuming the duty of collection, it should fall upon the delinquent agent, not upon the absent overseer.

The State Street Savings Bank was not liable to the holder of the check without acceptance. It was liable before acceptance only to the drawer: Chapman v. White, 6 N. Y. 412. It could not be made liable to the holder of the check except by its own consent. It had the funds of the drawers, and according to the usual course of dealing with its customers, was under obligation to pay on demand all checks drawn upon it by them, but a refusal to do so would not give the holder of the check the right to sue the bank. The drawer in such case would be liable, and he could sue the bank immediately, without redeeming the check, and the bank would be liable for damages for its refusal to perform its undertaking with him as depositor: Merchants' Bank v. State Bank, 10 Wall. 604, 605; Bank of Republic v. Millard, Id. 152. This being the law, the duty of the defendant upon receipt of the check for collection was plain. It was to present it for pay

ment, and only for payment. This it did at first, and if it had stopped then there would have been no liability upon it. But it did not; it went farther; it asked for and received the certification of the bank upon the check. By this act a new relation was created between the parties. The amount the check called for was withdrawn from the drawer's account and control, and thereafter they had no right of action for it against the bank. The technical operation of the transaction was a transfer to the holder of the check of the drawer's funds and right of action against the bank. It superseded the previous rights and obligations of the parties, particularly of the drawers.

Before that, the drawers could have stopped payment of the check or withdrawn the funds by other checks. After the certification they had no control over the funds or action of the bank in reference to it, nor any right to sue the bank for it. Nor did the bank owe them any duty in relation to it. It no longer possessed the character of a check. If the drawers had taken it up before its certification it would have been useless, but after that they could only get the money by surrendering it. It resembles, after certification, more the certificate of deposit than a check. Now, what was the effect upon the legal rights and liability of the drawers? Did it not discharge them from all further liability upon the check, and if such should be found to be the consequence, does it not follow that the defendants are liable to the owners for the amount ? If they have by their acts released the responsible drawers whereby the instrument is made worthless, why shall they not make good the loss?

In Smith v. Millard, 43 N. Y. 176, it is said that presenting a check for payment and accepting a certificate as good is equivalent to payment. In Morse on Banking, p. 282, it is laid down that, if the holder chooses to accept the bank's certification, no matter to suit whose convenience, there can be but one result. The promise of the bank on the drawer's account, accepted as satisfactory by the creditor, discharges the debtor, and by the same action. deprives him of all further concern in the premises. The bank no longer owes him any duty which he can enforce, or for the breach of which he can sue. If this is the result of the act of the defendant in accepting the certification of the check, it would seem too clear for discussion that the defendant had incurred a liability to pay the amount of it to its principal. The drawers being re