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ACTION AGAINST BANK BY HOLDER OF UNACCEPTED CHECK NOT

MAINTAINABLE.

INDIANA SUPREME COURT, MAY 26, 1880

NATIONAL BANK OF BROCKVILLE, appellant, v. SECOND NATIONAL BANK OF LAFAYETTE.

A holder of a bank check which has not been accepted has no right of action against the bank on which it is drawn for a refusal to pay, although the drawee had at the time of its presentation sufficient funds on deposit to pay the check.

ACTION on a bank check. Judgment below on

verdict in favor of defendant, and plaintiff appealed. Sufficient facts appear in the opinion.

Godlove S. Orth and James Park, for appellant. John M. La Rue and Frank B. Everett, for appellee, BIDDLE, C. J. Complaint in three paragraphs, by the appellant against the appellee, on a bank check. A. T. Cotton is the maker of the check, the appellant is the payee, and the appellee is the drawee. Demurrer, for want of facts, sustained to the first and third paragraphs of the complaint. Answer of general denial to the second paragraph. Trial by jury, and special verdict for appellee. Motion for a venire de novo overruled. Motion for a new trial overruled. Motion in arrest of judgment overruled. Exceptions, judgment and appeal.

We need not particularly state either the first or third paragraph of the complaint. Each sets out the check, and its presentation for payment by the payee. There is no averment of its acceptance by the drawee in either paragraph; indeed, each paragraph avers that the drawee refused to accept the check. In other respects, these two paragraphs are not well pleaded. Breach, non-payment of the check. A bank check has all the requisites of a bill of exchange, except that it is due on demand, without days of grace, and if dishonored, requiring nc protest for non-acceptance, nor for non-payment. There is no implied contract in favor of the payee against the drawee, that he will either accept or pay the check. The drawee is no party to the check until he accepts it, and a party cannot be sued on an express contract before he enters into it. The fact that the drawee has funds in his hands belonging to the drawer, sufficient to pay the check, does not change the rule.

The case of National Bank v. Elliott Bank is in point. We believe there is no decided case contrary to it; Abbott, J., delivered a long and ingenious dissenting opinion, but we cannot regard it as sound. He places the right of the payee to sue the drawee for non-acceptance or non-payment of the check upon the ground, that when a first party contracts with a second party to pay a sum of money to a third party, the third party, although not a party to the contract, may sue the first party upon the contract and recover. This is true upon express contracts, but there is no implied contract, in such cases, that the first party shall pay the third party, hence the necessity of an express acceptance of the check before the drawee is liable. In the case put as an illustration, the drawee of the check is the first party, the drawer the second, and the payee the third. Now, as there is no implied contract between the drawee and payee, he cannot sue the drawee upon the check until he has accepted it.

There are other convincing reasons in our minds against the rule contended for. If the drawee, having funds, refuses to pay the drawer's check, he becomes liable thereby to the drawer, and the drawer becomes liable to the payee. Now, if in such case the drawee was also liable to the payee, and the payee had his

right against both the drawer and the drawee, this complication would take the qualities of commercial paper from the check, and place it upon the ground of a common-law contract; and to apply this principle to foreign and inland bills of exchange, the great movers and upholders of the world's business, would be to embarrass if not destroy their usefulness in civilization, and impair the commercial faith of mankind. There are no implied contracts on commercial paper, and it must not be embarrassed by secret equities, and that express contracts touching it can be made in any other manner than in writing is the constant regret of the ablest jurists.

These views are fully supported by the following authorities: Edmonds on Bills of Exchange, 405; Byles on Bills, 18; Glenn v. Noble, 1 Blackf. 104; St. John v. Homans, 8 Mo. 382; Chapman v. White, 6 N. Y. 412; Bullard v. Randall, 1 Gray, 605; Pope v. Luff, 7 Hill, 577; Griffin v. Kemp, 46 Ind. 172; Pollard v. Bowen, 57 id. 232; Henshaw v. Root, 60 id. 220. Under the authorities we must hold the first and third paragraphs of the complaint insufficient. The appellant relies upon the case of Wilson v. Dawson, 52 Ind. 513, but in that case the bank, the depositor, was not a party to the suit; besides, the money was deposited under an express agreement, and for an express purpose. In this case, as the money was deposited with the drawee generally, there is no express contract, and the bank, the depositor, is a party. We can see no analogy between the two cases.

The special verdict returned by the jury upon the second paragraph of the complaint is in the following words:

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"The National Bank of Rockville and the Second National Bank of Lafayette are National banks, organized under the laws of the United States, the first located at Rockville, in the State of Indiana, and the other at La Fayette in said State. That on the 14th day of September, 1877, Andrew T. Colton, by the description of A. T. Colton, at the counter of said bank of Rockville, drew a check on the Second National Bank of La Fayette, in the words and figures following, to wit: La Fayette, Ind., September 14, 1877. Second National Bank: Pay to J.M. Nichols, Jr., or order, twenty-one and thirty-six in exchange dollars.' Signed A. T. Colton.' On the lower left hand margin of the check is the $2,136.00. That said check has not been indorsed by the said Nichols. That check was mailed by the cashier of the bank of Rockville aforesaid on Saturday, September 15, 1877, in time for the train going from Rockville to Terre Haute, at halfpast 11 o'clock, A. M., and received by the Second National Bank of La Fayette on Monday, September 17, 1877. That the check was inclosed in a letter which reads as follows: National Bank of Rockville, Ind., September 15, 1877, C. T. Mayo, Cashier, La Fayette, Ind. Dear Sir. I inclose for return your twenty-one thirty-six $2,136. Respectfully, J. L. McCune.'

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That on Saturday, September 15, 1877, A. T. Colton, the drawer of said check, deposited in the Second National Bank of La Fayette $3,845, subject to his check as a general depositor, and stated to the cashier of said bank that he had drawn several checks, one of which was to one Rambo, and one to the Bank of Rockville, which last was named as about $2,000; that one of the checks so drawn had been paid, and at the time of said deposit the account of the said A. T. Colton at the Second National Bank of La Fayette was overdrawn in the sum of $480, and two of said checks were in the bank at the time of making said deposit, unpaid; that at the opening of the bank at banking hours on Tuesday morning, September 18, 1877, there was but $1,373.03 in said National Bank of La Fayette to the credit of said Colton. That when said check was received by the defendant, on the 17th day of September, 1877, the same was placed in the bank,

THE ALBANY LAW JOURNAL.

and on the morning of the 18th the cashier of the de-
fendant took said check and calculated the exchange
on the sum of $2,136 in figures, on the back, at the rate
of 1% per cent, and placed the same on the cancelling
fork. Thereupon he was informed by the receiving
and paying teller of the bank that the drawer had
not sufficient funds on deposit to pay the check;
thereupon the cashier immediately took the check
from the fork and declined to pay it, and indorsed
upon it as follows: 'Cancelled in error; not charged;
check not properly drawn.' Caused the check to be
protested for non-acceptance. When the check was
presented by the notary for acceptance the reason
given for non-acceptance was that the check was not
in proper form. The check was then returned to the
plaintiff, with notice of its non-acceptance, in a letter, as
follows: J. L. McCune, Cashier, Rockville, Ind. Dear
Sir: I return, under protest, A. T. Colton on us, $2,136.
Pro. fees, $1.05, refused on account of informality of
drawing up the check. Very respectfully, Chas. T.
Mayo, Cash'r.' The check sued on was acknowledged
by said Colton, also by the plaintiff and defendant, as a
check for the amount of twenty-one hundred and
thirty-six dollars ($2,136). If from these facts the
court is of the opinion the plaintiff should recover,
then we find for the plaintiff, and assess her damages
at $2,171.60 (twenty-one hundred and seventy-one dol-
lars and sixty cents). If the court is of opinion that
the defendant should recover, then we find for the
defendant."

Upon the return of the verdict the plaintiff moved
for a venire de novo, upon the ground that the verdict
did not find on all the issues presented by the plead-
ings. The court overruled the motion, and we think
The facts found decide the entire contro-
properly
versy. The only issues presented by the second para-
graph of the complaint were, the making of the check
by the drawer, its presentation for payment to the
drawee, and its acceptance, averring the several dates.
These averments were denied by the answer. On these
issues, except as to the averment of acceptance, the
jury find for the plaintiff, with dates, etc. But the
plaintiff insists there is no sufficient finding on the
issue of acceptance. We think there is. They find
that the drawee declined to pay the check, and
caused it to be protested for non-acceptance. The
protest was unnecessary, yet the fact is found dis-
tinctly that the drawee would neither accept nor
pay the check. Indeed, it seems to us that the ver-
dict is unnecessarily particular in several respects.
As to what is sufficient or insufficient to constitute a
special verdict, see the following cases: Toledo, W. & W.
R. Co. v. Hammond, 33 Ind. 379; Pea v. Pea, 35 id. 387;
Hansworth v. Bloonhuff, 54 id. 487; Whitworth v. Bal-
lard, 56 id. 279; Lock v. Mechanics' National Bank, 66
id. 353; Graham v. State, id. 386.

The amount of the check upon its face is in dispute between the parties. It is contended by the appellant that it is drawn for $2,136; that the figures in the lower corner of the left-hand margin govern the amount. We are of opinion that in this view the appellant is mistaken. It is true, the amount in the body of a check may be stated in figures, and the check will be valid, if not contradicted in words; but the amount stated in figures, usually at the bottom or top of the left-hand margin, does not control the amount of the check, especially when contradicted by words in the body of the check. These marginal figures are merely for the convenience of reference, and constitute no necessary part of the check. They may be there or not, may differ with the body of the check, or not; it is the same thing. The instrument is perfect without them. Smith v. Smith, 1 R. I. 398; 2 Daniell on Neg. Inst. 439, § 1580. Placing the check on the cancelling fork by the mistake of the appellee's cashier, and afterward correcting the error, did not amount to an

111

acceptance of the check, nor in any manner affect its
Exch. 389;
validity. Bellamy v. Majoribanks, 7
Warweck v. Roggers, 44 Eng. C. L. R. 184.
From the view we have taken of the case it is not
necessary for us to decide what amount is expressed
in the body and on the face of the check. As the mint
dollar is not expressed either by the dollar mark or by
a word, nor the fraction cent by a point, as when sums
are expressed in figures, perhaps the first number ex-
pressed by words might be held to mean dollars,
and the second number cents, as amounts of money
are thus usually expressed in figures. If so, the check
Northrop v. Sanborn, 22 Vt. 433.
would call for $21.36.
But we do not decide this question, for we think the
same result must be reached whether we hold the
amount of the check to be $2,136 or $21.36. It appears
to us that the whole question turns upon the accept-
ance or non-acceptance of the check by the drawee.
As we have held, as a principle of law, that the drawee
is not liable unless the check was accepted, and as the
jury have found that it was not accepted, it follows
that the appellant cannot recover.

The facts found by the jury in the special verdict are the same in substance, and almost literally, indeed, as those averred in the first and third paragraphs of the complaint. As we have held these paragraphs insufficient in law to constitute a cause of action, it follows, again, that the appellant cannot recover, and we think the following authorities sustain us fully: Johnson v. Collings, 1 East, 98; Levy v. Cavanugh, 2 Bos. 100; Dykers v. Leather Manufacturing Bank, 11 Pai. 612; Bullard v. Randall, 1 Gray, 605; Luff v. Pope, 5 Hill, 413; S. C., 7 id. 577.

Certain instructions to the jury were asked by the appellant, and refused by the court. We need not set them out. The rulings on the demurrers to the first and third paragraphs of complaint sufficiently show, that in our opinion, they were properly refused, even if it were necessary to give any instructions when the jury are required to find a special verdict. They were to the effect that the payee could recover against the drawee upon the check, although he had not accepted it.

The evidence supports the verdict. The judgment is affirmed, at the costs of the appellant.

RIGHT OF WAY BY NECESSITY.

ENGLISH

HIGH COURT OF JUSTICE, CHANCERY
DIVISION, FEBRUARY 23, 1880.

MAYOR OF LONDON V. RIGGS, 42 L. T. Rep. (N. S.) 580.
Where the owner of a close and of land wholly surrounding

it grants the land surrounding the close, the implied
grant or regrant of a right of way by the grantee to the
grantor to enable him to get to the reserved close, is a
grant of a right of way for the purpose of the enjoy-
ment of the reserved close in its then state, and not a
grant of a general right of way for all purposes.
Where, at the time of the grant, the close was used for
agricultural purposes, held, that the owner of the close
and his tenants were not entitled to a right of way to
the close for the purpose of using it as building land,
but as agricultural land only.

DEM

EMURRER to statement of claim. One Heathcote, in 1877, was the owner of 141 acres of land which surrounded completely a piece of old inclosed land of about two acres, called the "Barn Hoppet," which was used exclusively for agricultural purposes, and also belonged to Heathcote. In 1877, Heathcote, for value, conveyed the 141 acres to the corporation of London, the grantee agreeing to keep forever the conveyed land an open space, subject only to forest laws and rights of common existing. No right of way from Barn Hoppet was reserved in the conveyance men

tioned. In 1879 Heathcote's lessees commenced the erection of a house and other buildings ou Barn Hoppet for the sale of refreshments to the public, and carried materials for that purpose across the 141 acres which had been left uninclosed. In an action by the corporation against such lessee and Heathcote, the statement of claim set forth these facts, and that the surface of plaintiff's land was injured by these operations mentioned, and was liable to be injured in the future by the crowds of people which would be drawn to defendant's house, and asked that it might be declared that Heathcote or his lessee was entitled to no greater right of way to and from Barn Hoppet across plaintiff's lands than was necessary for the use of Baru Hoppet for agricultural purposes; that said right of way might be defined; that defendant, the lessee, might be restrained from drawing material across such lands for the inclosure of buildings for purposes other than ordinary agricultural ones, and that defendants be restrained from using the right of way for other than agricultural purposes. Plaintiff also asked damages.

The defendant demurred to the statement of claim except so far as it claimed, if necessary, to have a way of necessity to the Barn Hoppet set out and defined. The demurrer alleged that, except as aforesaid, the statement of the claim was bad in law on the ground that the defendant Heathcote and his tenants were entitled to a way of necessity to the Barn Hoppet across the lands conveyed to the plaintiffs for the use of the Barn Hoppet for all purposes and not for agricultural purposes only.

Davey, Q. C., and H. A. Giffard, for the demurrer: Notes to Pomfret v. Ricroft, 1 Wms. Saund., Ed. 1871, pp. 571-4; Clarke v. Cogge, Cro. Jac. 170; Proctor v. Hodgson, 10 Ex. 824; Plant v. James, 5 B. & Ad. 795; Skull v. Glenister, 16 C. B. (N. S.) 81; Dutton v. Taylor, 2 Lutw. 1487; Packer v. Welstead, 2 Sid. 39, 111; Jorden v. Atwood, Owen, 121; Pinnington v. Galland, 9 Ex. 1; Beaudely v. Brook, Cro. Jac. 189; Holmes v. Goring, 2 Bing. 76; United Land Company v. Great Eastern Railway Company, L. R., 10 Ch. 586; Newcomen v. Coulson, 5 Ch. Div. 133; 36 L. T. Rep. (N. S.) 385; Finch v. Great-Western Railway Company, 28 W. R. 229; Wimbledon and Putney Commons Conservators v. Dixon, 1 Ch. Div. 362; 33 L. T. Rep. (N. S.) 697; Allan v. Gomme, 11 Ad. & E. 759; Henning v. Barnet, 8 Ex. 187.

Chitty, Q. C., and W. R. Fisher, for the plaintiffs, referred to Dand v. Kingscote, 6 M. & W. 174; Lord Darcy v. Askwith, Hob. 234; Crossley & Sons, Limited, v. Lightowler, L. Rep., 2 Ch. 478; Whieldon v. Burrows, L. R., 12 Ch. Div. 31; 41 L. T. Rep. (N. S.) 327; Wood v. Saunders, L. R., 10 Ch. 582; 32 L. T. Rep. (N. S.) 363; Gayford v. Moffatt, L. R., 4 Ch. 133; Pearson v. Spencer, 1 B. & S. 571; 3 B. & S. 761.

JESSEL, M. R. I am afraid that whatever I may call my decision, it will in effect be making law, which I never have any desire to do, but I cannot find that the point is covered by any decided case or even appears to have been discussed in any decided case. The only satisfaction I have in deciding the point is this, that it will in all probability be carried to a higher court, and it will be for that court to make the law, or as we say, declare the law, and not for me. The real question I have to decide is this: whether on a grant of land wholly surrounding a close, the implied grant or regrant of a right of way by the grantee to the grantor to enable him to get to the reserved or excepted or inclosed close, is a grant of a general right of way for all purposes, or only a grant of a right of way for the purpose of the enjoyment of the reserved or excepted close in its then state. There is, as I have said, no distinct authority on the question. It seems to me to have been laid down in very early times- and I have

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looked into a great number of cases, and among others several black-letter cases that the right to a way of necessity is an exception to the ordinary rule that a man shall not derogate from his own grant, and that the man who grants the surrounding land is in very much the same position as regards the right of way to the reserved close as if he had granted the close retaining the surrounding land. In both cases there is what is called a way of necessity; and the way of necessity, according to the old rules of pleading, must have been pleaded as a grant, or where the close is reserved, as it is here, as a re-grant. Now the question is, what is the re-grant. I fail to find any exact decision on the point, or any thing coming near it, for it does not seem to have been discussed anywhere, and the only scintilla of authority I can find going anywhere near the point is an observation by the Lord Chancellor Cairns in Gayford v. Moffatt, supra, in which he says, reading from Mr. Serjt. Williams' note to Pomfret v. Ricroft, supra: "This principle seems to be the foundation of that species of way which is usually called a way of necessity;" and then he goes on to say, "Now this is exactly the interpretation of the words used in this grant, with all ways to the premises appertaining, it means with such a way as the law would hold to be necessarily appertaining to premises such as these that is a way of necessity; therefore immediately after this lease was granted, this tenant occupying the inner close became entitled to a way of necessity through the outer close, and that way must be a way suitable to the business to be carried on on the premises demised, namely, the business of a wine and spirit merchant." It is therefore obvious to me that Lord Cairns thought a way of necessity meant a way suitable for the user of the premises at the time when the way of necessity was created; and that is all I can find in the shape of authority on the subject. Well, now, if we try the case on principle, treating this right of way as an exception to the rule, ought it to be treated as a larger exception than the necessity of the case warrants? That of course brings us back to the question, What does the necessity of the case require? The object of implying the regrant, as stated by the older judges, was, that if you did not give the owner of the reserved close some right of way or other, he could neither use nor occupy the reserved close, nor derive any benefit from it. But what is the extent of the benefit he is to have? Is he entitled to say, I have reserved to myself more than that which enables me to enjoy it as it is at the time of the grant? And if that is the true rule, that he is not to have more than necessity requires, as distinguished from what convenience may require, it appears to me that the right of way must be limited to that which is necessary at the time of the grant; that is, he is supposed to take a re-grant to himself of such a right of way as will enable him to enjoy the reserved thing as it is. That appears to me to be the meaning of a right of way of necessity. If you imply more, you reserve to him not only that which enables him to enjoy the thing he has reserved as it is, but that which enables him to enjoy it in the same way and to the same extent as if he reserved a general right of way for all purposes; that is, as in the case I have before me, a man who reserves two asres of arable land in the middle of a large piece of land is to be entitled to cover the reserved land with houses and call on his grantee to allow him to make a wide metalled road up to it. I do not think that is a fair meaning of a way of necessity. I think it must be limited by the necessity at the time of the grant, and that the man who does not take the pains to secure the actual grant of a right of way for all purposes is not entitled to be put in a better position than to be able to enjoy that which he had at the time the grant was made. I am not aware of any other principle on which this case can be decided. I may be met by the

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THE ALBANY LAW JOURNAL.

objection that a way of necessity must mean something more than what I have stated, because where the grant is of the inclosed piece, the grantee is entitled to use the land for all purposes, and should therefore be entitled to a right of way commensurate with his right of enjoyment. But there, again, the grantee has not taken from the grantor any express grant of a right of way, and all he can be entitled to ask is a right to enable him to enjoy the property granted to him in the condition it was when granted to him. It does not appear to me that the grant of the property gives any greater right. But even if it did, the principle applicable to the grantee is not quite the same as the principle applicable to the grautor, and it might be that the grantee obtains a larger way of necessity - though than the grantor does under I do not think he does the implied re-graut. I am afraid that I am laying down the law for the first time that I am for the first time declaring the law; but it is a matter of necessity from which I cannot escape. The demurrer must therefore be overruled with costs.

INTERLINEATIONS IN WILL.

ENGLISH HIGH COURT OF JUSTICE, PROBATE, DI-
VORCE AND ADMIRALTY DIVISION, FEB. 10, 1880.

IN THE GOODS OF BLEWITT,

Where two interlineations were introduced into a will after execution and attestation, but the testatrix duly initialled the same in the margin opposite them, and the witnesses also subscribed their initials in attestation of such signature (by initialling) of the testatrix, held, that the interlineations were duly executed, and were entitled to probate as part of the will.

ARAH BLEWITT, late of Chelsham road, Clapham,

SARA

in the county of Surrey, widow, died on the 27th Dec. 1879, having duly made her last will and testament on the previous day (26th Dec., 1879), in the words and figures following:

"I, Sarah Blewitt, of Chelsham road, Clapham, in the county of Surrey, widow, do hereby revoke all wills and other testamentary documents heretofore made by me, and do declare this to be my last will and testament. 'I give and bequeath unto Amelia Cooke the sum of 50l. and all my wearing apparel.' I give, devise and bequeath all the residue of' my estate, both real and personal, etc., unto John James Grocott, of, etc., and Thomas Henry Edward Cooke, of, etc., their' heirs, executors and administrators respectively, upon trust, etc. And I appoint the said John James Grocott and the said Thomas Henry Edward Cooke' my sole executor. In witness whereof, etc."

The will was duly executed by the testatrix in accordance with the provisions of the statute, the attesting witnesses being a Mr. Nickinson, the solicitor who prepared it, and a Mr. Rigby Allport.

The deceased had scarcely executed the will, and the second subscribing witness was in the very act of attesting her signature, when she expressed a desire to appoint Mr. Cooke co-executor and co-trustee with Mr. Grocott, and to give to Miss Cooke a legacy of 50l. and all her wearing apparel. As there was some danger of the deceased expiring before another will could be executed, Mr. Nickinson thought it best to carry out her intentions by interlining them in the will, and after the interlineations (which are marked above by inverted commas) had been made, the testatrix placed her initials opposite them, and the witnesses subscribed their initials underneath hers in attestation of her signature.

Bayford and Stevens moved the court to decree probate of the will with the interlineations to the executors. They amounted to a re-execution of the will.

The following cases were quoted in the course of the
arguments and the judgment: In the Goods of Hind,
16 Jur. 1161; In the Goods of Christian, 2 Rob. 110;
Baker v. Dening, 8 Ad. & E. 94; Hindmarch v. Chorlton,
4 L. T. Rep. (N. S.) 125; 1 S. & T. 433; 28 L. J. 132, P.
& M.; In the Goods of Martin, 1 Rob. 712.

The President (Sir James Hannen) delivered the
following judgment: Two interlineations were intro-
duced into the will after execution and attestation,
but the testatrix signed with her initials in the margin
against these interlineations, and the witnesses sub-
scribed their initials in attestation of this signature of
the testatrix. The Wills Act, section 21, enacts that
no interlineation or other alteration made in any will
after the execution thereof shall be valid unless such
alteration shall be executed in like mauner as is re-
quired in the execution of the will; but the will with
such alterations shall be deemed to be duly executed
if the signature of the testator and the subscription of
the witnesses be made in the margin. The only ques-
tion then is, whether the signature and subscription
only is sufficient. A mark is sufficient, though the tes-
Baker v. Dening. Initials, if in-
tator can write.
tended to represent the name, must be equally good.
The language of the lord chancellor in Hindmarch v.
Chorlton, seems equally applicable to the testator's sig-
nature as to the witnesses' subscription: "I will lay
down this as my notion of the law, that to make a valid
subscription of a witness, there must either be the name
or some mark which is intended to represent the
name.' And Lord Chelmsford says: "The subscrip-
tion must mean such a signature as is descriptive of
the witness either by a mark or by initials or by writ-
In Christian's case the initials
ing the name in full."
of the witnesses were held sufficient, although if
merely placed to attest the alteration they will not
serve as an attestation to the will itself. In the Goods
of Martin. I am therefore of opinion that the inter-
lineations against which the initials of the testatrix
and the witnesses are placed should be admitted to
proof.

"

Bayford. As part of the instrument?
The President. - As part of the instrument.

NEW YORK COURT OF APPEALS ABSTRACT.

ASSIGNMENT FOR CREDITORS-GOVERNS ACTION OF ASSIGNEE-PREFERENCES-TAXES.-L., in 1876, gave his bond and a mortgage on certain property to U. to secure a certain debt due U. The mortgage contained a provision authorizing foreclosure in case the taxes on the mortgaged property should not be paid. The taxes for 1877, 1878 and 1879 not being paid, U. commenced foreclosure procedings and had a receiver appointed pendente lite, and through him secured possession of the said property. In 1879 L. made an assignment of his property for the benefit of creditors to D. in trust to pay certain preferred debts named, but the assignment contained no provision giving any preference to taxes or directing their payment at all, except as embraced in the general unpreferred debts of the assignor. U., upon a petition showing that the mortgaged property was an insufficient security for his debt and the other facts, asked for an order that the assignee should pay and discharge the taxes in arrears. Held, that such order should be refused. The assignee derives all his power from the assignment, which is both the guide and measure of his duty. Beyond that or outside of its terms he is powerless and without authority. The control of the court over his action is limited in the same way and can only be exercised to compel his performance of the stipulated and defined trust and protect the rights which flow from it. distributes the proceeds of the estate placed in his

He

care according to the dictation and under the sole guidance of the assignment, and the statutory provisions merely regulate and guard the exercise of an authority derived from the will of the assignor. The courts therefore cannot direct the assignee to pay a debt of the assignor or give it preference in violation of the terms of the assignment and the rights of creditors under it. Nicholson v. Leavitt, 6 N. Y. 519. The case is not like that of a distribution of a bankrupt's or of a decedent's estate. Even if the State has a right to claim preference in the payment of taxes, an individual cannot interfere in its behalf and claim it. Order affirmed. Matter of Assignment of Lewis. Opinion by Finch, J.

[Decided June 15, 1880.]

MALICIOUS PROSECUTION

GROUND OF PROSECUTION WHAT MUST BE SHOWN FAILURE OF PROSECUTION. In an action by T. against K. and others for malicious prosecution, it appeared that the prosecution complained of was set on foot by the defendants and rested upon an affidavit drawn by one of the defendants and verified by K., the other, wherein a larceny of deeds was charged to have been committed by T. from ., but the facts and the circumstances of the case were set forth and showed that T. having persuaded K. to let him have possession of deeds from him to her, of real estato (belonging to her, but the title to which was held by him in trust), for the purpose of examination and correction, refused to return them to her but kept them by violence, and afterward conveyed the real estate to another. It also appeared that at the time, the deeds were not recorded. Held, that if the statement of surrounding circumstances in the affidavit were true, the action for malicious prosecution could not be sustained, even though the districtattorney afterward dismissed the indictment against T. after K. had been heard, as not sustained by the evidence. The affiant was responsible for the statements in her affidavit but not for any legal conclusion therefrom of a police magistrate or a district-attorney, or a grand jury. In order to compel a defendant in an action for malicious prosecution to go into a defense, the plaintiff must show, first, the want of a reasonable and probable cause for the complaint in the proceeding against plaintiff (Williams v. Taylor, 6 Bing. 183), and second, that it was instituted by malice. As to the first ground, the plaintiff is bound to give in evidence facts sufficient to satisfy a reasonable mind that his accuser had no ground for the proceeding but a desire to injure him, and whether he had done so was for the court to determine as matter of law, assuming the evidence was true. Stewart v. Sonneborn, 98 U. S. 189; Halles v. Marks, 7 II. & N. 56; Masten v. Deyo, 2 Wend. 424; Besson v. Southard, 10 N. Y. 236; Sutton v. Johnstone, 1 Term R. 269; Turner v. Ambler, 10 A. & E. 252. Judgment reversed and new trial ordered. Thaule v. Krekeler. Opinion by Danforth, J. [Decided June 18, 1880.]

PRACTICE APPEAL TO COURT OF APPEALS-ORDER DISCHARGING ARREST OPINION OF COURT BELOW CANNOT CONTROL ORDER. In this case defendants were arrested under the provisions of the Code for fraud in contracting the debt for which suit was brought, and after judgment they were again arrested under the act to abolish imprisonment for debt, upon the same grounds. The judge discharged them on the ground that they were not liable to be arrested twice for the same cause. Ilis decision was affirmed at General Term. The order of discharge stated that it was made "upon due consideration of the proofs in the matter, and the affidavits on which the warrant was granted." In the order of affirmance at General Term, no ground was stated. Held, that this court could not say from the orders that they were not made upon the merits, and that the proofs in the case failed to satisfy

the courts below that a case was made out for a commitment, nisi, etc., of defendants. In such a case this court may not, when an order of arrest or commitment has been denied, review the order. And the fact that the opinions below do not so state will not alter the rule. This court may not look into the opinions below to find matter differing from that in the order, unless the language of the order is ambiguous and needs aid for an understanding upon which it went. Ferher v. Gould, 22 Alb. L. J. 55. Appeal dismissed. In re Nebenzahl et al. Opinion by the court. [Decided June 15, 1880.]

SUPERIOR COURT OF BUFFALO.

GENERAL TERM ABSTRACT.

ATTORNEY'S LIEN-SETTLEMENT. - If an attorney has omitted to protect himself by a notice forbidding a settlement without him, and the parties compromise the action before judgment, of which he has notice, he then proceeds in the suit for his costs, at the peril of establishing conclusively that the adverse party had the design, when making the settlement, of defeating his demand for the costs. If he fail in satisfying the court of this, his proceedings, subsequent to notice, will be set aside. McDowell v. Second Ave. R. Co., 4 Bosw. 670; Sullivan v. O'Keefe, 53 How. 426; Crotty v. MacKenzie, 52 id. 54. He must make out a clear case of collusion to justify him in proceeding in the suit after notice of settlement. And it must be shown affirmatively that the settlement was made with the purpose of depriving the attorney of his claim. Carpenter v. Sixth Ave. R. Co., 1 Am. L. Reg. (N. S.) 410. Indigence of plaintiff, known to defendant, is not sufficient to establish collusion, or to requiro the latter to take notice of the lien or claim of the attorney. Suspicious circumstances are insufficient to show collusion. The attorney may protect himself by giving notice of his claim. But he does not acquire a vested interest in or a lien upon the plaintiff's cause of action, by stipulating beforehand for a share of the recovery. Coughlin v. N. Y. C. R. Co., 71 N. Y. 448. The attorney has not, even after judgment, a lien, properly speaking, but only a claim or right to ask for the intervention of the court for his protection, when, having obtained judgment for his client, he finds there is a probability of the client's depriving him of his costs. Mercer v. Graves, L. R., 7 Q. B. 499. The question is, not whether plaintiff has acted with a fraudulent intent, but whether defendant has acted fraudulently with respect to plaintiff's attorney. Where the attor ney has noticed the cause for trial, after notice of settlement, a motion to strike it from the calendar is proper. (The settlement was made before amendment to section 66 of the Code, by Laws of 1879.) Lang v. Buffalo Seamen's Union. Opinion by Beckwith, J. BAILMENT-CONVERSION.-Though a man cannot be made a bailee against his will, yet where a customer unintentionally leaves an article in a shop, and the shop-keeper takes charge of it, he becomes a bailee of the article. A demand of the property and a refusal or neglect to re-deliver it is prima facie evidence of a conversion, and it is incumbent on the defendant to justify or excuse the refusal. Osgoodby v. Liemberner. Opinion by James M. Smith. J.

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