RIGHT OF ACTION WHERE MONEY HAS BEEN PAID IN CONSEQUence of FORGED ENDORSEMENT ON LOST DRAFT-ANSWER TO S. M.

NEBRASKA CITY, NEB., Nov. 25th, 1875. EDITORS CENTRAL LAW JOURNAL:-To the enquiry of S. M. of Great Bend, Kansas (ante, p. 760), respecting right of action where money has been paid upon a forged endorsement, in your issue of Nov. 19th, I would state that the rule of law seems to be that if B., a banker in Massachusetts, pay a draft upon him drawn by A., payable to the order of C., on which C'.s endorsement is forged, he is liable to pay it again to the proper party, C. If the bill be to C. or C.'s order, the acceptor is bound to ascertain that the person so presenting it is the one entitled to receive payment. And if he be denied, the real owner of the bill may recover the amount again from the acceptor, maker or banker. Parsons on Notes and Bills, Vol. 2, pp. 595, 596, and cases cited. In a suit against a bank for money deposited with it by plaintiff, the defendant produced a check upon the bank which it had paid, for the amount of the money,signed by the plaintiff and payable to order of C. & Co., and with the name of that firm forged thereon. Held, that plaintiff was entitled to recover. Morgan v. Bank II N. Y. 404; Graves v. Bank, 17 N. Y. 205. In the latter case it is held, that the drawee is bound to ascertain that the person to whom he makes payment is the genuine payee, or is authorized by him to receive it, and that the drawee has no defence if he has paid the bill to the wrong party, in good faith and for value. Citing 1 Hill 295; Id., 287; Story on Bills, 451.

It would seem, therefore, that in the case supposed, C.'s remedy would be against B. "Has the payee of a draft drawn by one banker upon another a right of action against the drawer, if the drawee refuses to accept or pay? Clearly not, upon the draft. The payee's remedy is against the drawer, if proper steps have been taken to charge him; there is no privity of contract between the payee and drawee of a bill, until after acceptance. Yours respectfully,

E. F. WARREN.

Summary of Our Legal Exchanges.

WEEKLY NOTES OF CASES.*

Statute of Limitation-Agreement to Waive.-Hoffman v. Fisher; Supreme Court of Pennsylvania. Opinion per curian: [2 Week. Notes Cas. 17.] A note payable April 25, 1860, contained the words " I also disclaim all limitation of whatever kind." An action thereon having been brought June 12, 1872, Held, that the agreement to waive extended the right of action for a second period of six years only, and at the expiration of twelve years, the action was barred.

Evidence

Promissory Note-Alteration - Evidence - Experts.- Fisher v. Hoffman; same court. [2 Week. Notes Cas. 18.] In a suit by payee against the maker's executor, the note was admitted in evidence, though over a figure in the date another had been written, and though the statutes of limitation would have barred the suit if the original figure had been correct. was admitted of one who saw the plaintiff offer a note of similar amount, which he then said he had dated the same day as the note in evidence, to the maker. The witness then heard the maker write, as he supposed, signing the note, which looked like the one in suit. Expert testimony was admitted to show that the body of the note and the date had been written by one person at the same time. Held, that the above evidence was properly admitted.

Set-off-Consideration-Note-Evidence.-Kessler v. Angle; same court. [2 Week. Notes Cas. 23.] In a suit on a note, the defendant offered in evidence, as a set-off, a note made by the plaintiff to C., and by him endorsed to the defendant, and testified that he had given C. his own note in payment therefor, to be returned by C. in case the court did not admit the set-off. There was evidence that C. had paid some of defendant's expenses in the suit. Held, (affirming by an equally divided court the judgment of the court below), that the defence of set-off was not admissible.

Evidence Sheriff's Sale - Subrogation.— McLellan's Appeal; same court. [2 Week. Notes Cas. 19.] An assignee for creditors allowed a reconveyance to a debtor of the assignor of lands held by the trustee as collateral security, the value of which had been fixed by an auditor's report; and on appeal therefrom to the supreme court he was surcharged for the unpaid indebtedness, the amount of which, however, was not fixed by the supreme court. He then offered to show before the auditors, under a subsequent reference, that the lands were worthless, because theretofore, with other lands, mortgaged and sold at sheriff's sale for less than the mortgage. Held, that the evidence was inadmissible (1) because offered too late; (2) because the auditor's report had shown the value of the lands to have exceeded the mortgage upon them; and (3) because the mortgage creditors could have been compelled to resort first to the other lands covered by the same mortgage, leaving presumably a margin for the assignee; further, that the sum for which the *Philadelphia: Kay & Brother.

lands were sold at sheriff's sale, afforded here no presumption of their value.

Contracts on Sunday

Executed and Executory.-Chestnut v. Harbaugh et al.; same court. [2 Week. Notes Cas 37 ] A. purchased a pair of mules from B.,giving in payment his note drawn to B's. order, on Sunday, July 27, 1873. On July 30, C., a credltor of B., issued an attachment, under act of March, 1869, against the mules in A's. possession alleging that the sale, being consummated on Sunday, was void, and passed no title to A. Held (reversing the judgment below), that although the contract was made on Sunday, yet being executed, it did not come within the provisions of the act of 22 April 1794, and was not void. Per Gordon, J. The Sunday law does not pronounce such contracts void; but because they are contra bonos mores, the law will not

lend its aid to execute such as are executory. Where, however, they have been executed by the parties, the law leaves them as it finds them. In the present case, the contract, though immoral, is irrevocable, as the courts will not aid either party to its revocation, but leave him to reap the fruits of his own wrong.

Measure of Damages for Land Taken-Elements of Computation.-McTerren v. Mont Alto R. R. Co.; same court. [2 Week. Notes Cas. 40.] In an action for land damages by construction of defendant's railroad, evidence was admitted, on behalf of defendant, tending to show that plainiiff's farm land contained ore the witness's judgment in this respect being strengthened by developments on adjoining properties-and that its value as such ore land had been increased by the new railroad, to an amount exceeding the damages Held, that the evidence was properly admitted.

Fire Insurance-Forfeiture-Assessment-Notice-Publication in Newspaper-Sinking Springs Mut. Ins. Co. v. Hoff's Ex'rs; same court. [2 Week. Notes Cas. 41.] A mutual fire insurance company levied, in accordance with provisions in its charter, an assessment upon its policy-holders, notice thereof being published in newspapers. Before ninety days after the assessment, contrary to a stipulation in its charter, the company forfeited the policy of one of its members, who had no actual notice thereof or of the assessment, giving notice of the resolution of forferture in the newspapers. Held, that the forfeiture was premature; further, that publication in a newspaper was not sufficient evidence of actual notice to the plaintiff of forfeiture for the nonQuare, whether publication in a newspaper is of payment of an assessment.

itself sufficient notice of an assessment. Agreement for Insurance-Agent-Waiver-Estoppel-Notice. Somerset Co. Mut. Fire Ins. Co. v. May's Ex'r; same court [2 Week. Notes Cas. 43.] A., the agent, secretary and director of a mutual insurance company, took the application for insurance, premium note, and note of hand for cash premium, of B., promising to notify him if the application was rejected, and in that case, to return the note of hand. A by-law of the company required the approval of two directors to every application. B.'s application B. received no notice of was rejected by two directors, of whom A. was one. the rejection of his application until after the premises were burned, seven months after application was made. Held, by an eqully divided court (affirming the judgment below), that the plaintiff could recover against the company upon the agreement to insure.

Executed Contract void for Fraud-Jury - Lumber Trade Usage.-Payne et al. v. Lloyd et al.; same court. [2 Week. Notes Cas. 45.] without A., having sold lumber to B., induced him to have it "scaled by C., informing him that C. had already scaled more than half of it. A note was given by B. to A. in payment, upon the basis of C.'s "scale," which B. subsequently refused to pay, because of a deficiency in the quantity of lumber received; Held, that, in the abcence of proof of fraud by A., B. was bound by C.'s measurement.

INTERNAL REVENUE RECORD.*

Statutes Repealed by Implication-Liability of Sureties on Assistant Treasurer's Bond.-United States v. Cheeseman et al.; United States Circuit Court, California. Opinion by Sawyer, C. J. [21 Int. Rev. Rec. 340.] 1. When a statute revising another act embraces the entire subject-matter of the prior act, with additional provisions, it must be regarded as a substitute for, and as repealing such prior act. 2. The act of Congress of June 30, 1864, to provide internal revenue, etc., (13 Stat., 296-7), embraces the entire subject-matter of section 2 of the act of December 25, 1862 (12 Stat. 3 The liabilities of sureties are strictis632), and repeals the latter section.

simi juris, and can not be extended beyond the reasonable necessary import of the language of the bond. 4. Subsequent to the passage of the act of Congress of June 30, 1864, to provide internal revenue, etc. (13 Stat. 223), the assistant treasurer of the United States and treasurer of the branch mint at

San Francisco, gave an official bond in pursuance of sections 6 and 7 of the act of August 6, 1846, to provide for the reorganization of the treasury, etc., (9

*New York: W. C. & F. P. Church.

Legal News and Notes.

-A TELEGRAM in the papers of last Tuesday morning announced that Charles O'Conor, Esq., of New York, was dead. The report was afterwards contradicted. On Wednesday his illness was pronounced to be due to paralysis of the stomach, and his fate as yet remains undecided.

-ON LAST Saturday morning, died, at his residence in St. Louis, the Hon. Fidelio C. Sharp, of the law firm of Sharp & Broadhead. A meeting of the St. Louis Bar was held on the monday following in circuit court-room No. 3, to take action on his death. Ex-Governor Trusten Polk was called to the chair. Then followed a most impressive scene, as one after another of the oldest members of the fraternity testified to the ability, learning, and character of their departed friend. The eulogists seemed to vie with each other in extolling the worth of the deceased, and all felt that he merited the highest approbation. In nobility of character, in earnestness of purpose, in all that makes the man, Mr. Sharp had, in truth, no superiors; in fidelity to duty, in legal acumen, and in well directed and persistent effort, he had few, if any, equals. It were in vain to attempt a just portraiture of the man and lawyer; his life and his deeds are his credentials, and speak for him what his modesty would never have permitted his tongue to express. The West has lost in his death one of its best men, the St. Louis bar one of its ablest members. The funeral took place last Wednesday. The courts were closed, and the corse was followed to the grave by the best of those who remain.

UNREPORTED DECISION.

Ejectment, defence in- Pleading-Estoppel--District Attorney -Assistant Counsel-Pleading by County, how subscribed. Moreland v. Marion County. United States Circuit Court, Oregon. Opinion by Deady, J. 1. In an action of ejectment the defence may consist of either a denial of the plaintiff's right to recover by controverting any or all of the material allegations of the complaint, or of an averment or plea of such an estate in the premises, or license or right to the possession thereof in the defendant, as is inconsistent with a present right of possession in the plaintiff, or both Or. Civ. Code, 316. 2. The statement of new matter in the answer must be "concise" and it must constitute a " defence" to the action, and like the statement in the complaint of "the facts constituting the cause of action," it must be limited to the ultimate facts of such defence, and should not con. tain the evidence of them. 3. A defence which states in detail the circumstances by which it is claimed that a dedication of the premises was made to the defendant to certain public uses, is irrelevant as a pleading; it should have alleged a right of possession in the defendant, in pursuance of dedication, for the purposes and time claimed as prescribed by statute. Or. Civ. Code, 316. 4. Facts stated in a defence do not amount to an estoppel, unless pleaded as such. 5. A plea of estoppel must allege that the plaintiff ought to be precluded from showing some fact or matter stated in the complaint, to which the estoppel is interposed, because of some other fact or matter alleged in the plea, which constitutes the estoppel. 6. A district attorney, by virtue of his office, is the attorney for the several counties in his district, and as such must prosecute or defend all actions to which any of such counties may be a party, without reference to the locality of the court in which they may be pending. 7. The county court may employ counsel to assist the district attorney in the prosecution or defence of a particular action, but the district attorney is entitled to control the proceedings in court, and the county can not appear by any other attorney. 8. If the pleading of a county is not subscribed by the proper district attorney, it is not duly subscribed and may be stricken out of the case. Or. Civ. Code, 22 79, 103.

*Cincinnati: Herman M. Moos, Esq.

baggage-room and the hotel of the I., C. and L. at the junction where the

transfers are made to and from the Toledo, Wabash and Western. The principal question was whether the ground condemned and in use by a railroad company could be taken and condemned by another railroad company. The judge decided that under the statute of Indiana such a second condemnation could be made where the public interests required it, and that the only ground on which a court of equity could interfere in such a case would be when the power to condem is wantonly abused. The injunction was refused.

-JOHN WILLIAM WALLACE, Esq., so long and favorably known as the reporter of the United States Supreme Court, has resigned his position, and goes out of office upon the completion of his forthcoming volume-the twentyMr. Otto is a native of second. His successor is Hon. William T. Otto, Philadelphia, and a graduate of the University of Pennsylvania. It is noteworthy that he was a classmate of Mr. Wallace, his predecessor. On completing his law studies, Mr. Otto went to Indiana, and soon after his arrival he was appointed to a chair in the University of the state. He subsequently filled a judicial office there. Upon the election of Mr. Lincoln, he was appointed assistant secretary of the interior at Washington, discharging at times nearly all the duties of his superior's office. A few years ago, President Grant transferred him to the commission of Spanish claims, where he remained until chosen as reporter. He is spoken of as a man of clear, strong intellect, large judicial experience, firm independence, gentlemanly bearing, and an upright character, to which may be joined a genial disposition and exceptional capacity for labor. He will need such qualities to assist him in faithfully reporting the work of a court that sits eight months in each year and has no idle The Legal Gazette looks on this appointment with justifiable pride, as Mr. Otto is the fifth supreme court reporter taken from Pennsylvania, and the fourth from Philadelphia. Alexander J. Dallas was the first, Richard Peters the second, Mr. Jeremiah S. Black, not of the city, the third, and Mr. Wallace the fourth. We wish Mr. Otto all possible success, as his success is our gain, and trust he will be able, in discharging his duties, to meet the approbaion of the bar as well as of the bench, a matter not easily attainable. We learn that Mr. Albert G. Browne, Jr., recently state reporter of Massachusetts, was a candidate for the office vacated by Mr. Wallace. Our readers will no doubt remember a long article in a late number of Harper's Weekly, in which Mr. Browne gained for himself much notoriety and no slight censure because of his brilliant exposition of the New York rings, and his caustic criticism of the New Youk Court of Appeals. A private letter from Washington (says the Albany Law Journal), states that Mr. Browne at one time seemed certain of being appointed United States Supreme Court reporter, but that he lost the appointment "because the judges concluded that his appointment might be construed into an approval of his attacks upon your [the New York] Court of Appeals."

time.

Mastin v. Halley.

Among the interesting decisions of the Supreme Court of Missouri, delivered at the term which has just adjourned, is that of Mastin v. Halley, which we publish elsewhere. Mr. Justice Sherwood, who delivered the opinion in this case, has, since he has been on the supreme bench, given much attention to questions of equitable cognizance, and his reasoning is therefore entitled to respectful consideration. Nevertheless, after an attentive perusal of this case, we can not bring our minds to a feeling of satisfaction at the result. Here is a case where a man appears to have paid $4,800 for certain property; but because of a technical mistake in a conveyance made many years before, when it was of little value, he is, as we understand the result of the case, deprived of it, and it goes to one of the heirs of the grantor in whose deed this mistake occurred, and to a purchaser from the other heir, who does not even appear to have paid a valuable consideration. This may be equity, but we can not bring ourselves to believe that it is justice. If it is equity, then we are led to the reflection that equity has become, like the common law, against whose operation it was intended to relieve, a series of unbending and technical rules, which frequently result in the doing of injustice, or, what is the same, as in this case, the denial of justice. The only argument of the learned judge which strikes us as possessing force, is that the plaintiff had failed to allege the performance of the covenant to build on the part of himself or of those through whom he claimed, and hence, under the operation of the maxim that "he that seeks equity must do equity," had no standing in court. The reasoning of the learned judge, as we understand it, is, that the plaintiff had not brought himself within the maxim that he that seeks equity must do equity, because he had not performed the covenant to build "one certain building" upon the lots; but as this covenant was of so uncertain a nature that the court could not direct its performance, therefore he should not have relief. This, it seem to us, is equivalent to saying, "You shall not have relief, because you have not done what you can not do.” But would it not have been easier to suppose that a covenant which may have been of little benefit to the original grantor, and the failure to perform which may have wrought him no injury, had, after the lapse of so long a time been commuted or waived by those entitled to insist on its performance? At least, it would seem that it would have been easier to suppose that the "temporary shanty" put upon the lots in 1872 fulfilled the vague and uncertain covenant to erect "one certain building," especially

of the covenant. If, as the learned judge states, the covenant was so vague that it could not be specifically enforced in equity, how can a court of equity say that the erection of this structure was not a fulfillment of it? We can not but believe that good technical reasons might have been found to warrant the granting of the relief sought. For instance, there is a maxim that equity regards that as having been done which ought to have been done. When Hubbard made this deed, he ought to have affixed a seal to it, and doubtless omitted to do so through a common mistake. A court of equity, then, would treat the case as though the deed had been ensealed as well as signed. Why not? What is a seal? It is an invention of a rude and barbarous age when men could not write their names.

With us it is, in point of fact, a naked and senseless formality-a mere scrawl of the pen-a thing which any one can counterfeit without detection. Whatever may be its cabalistic meaning in point of law, it imports no verity as a matter of fact. The signature, and never the seal, is looked to to determine the genuineness of the instrument. It may be made by any one before the deed is delivered. 3 Washb. Real Prop. 245, 3d Ed. The use of this scratch of the pen-when it is to be resorted to and when omitted—is a thing which very few business men understand; and nothing is more common than to find it employed where it ought not to be employed, and omitted where it ought not to be omitted. It seems scarcely tolerable, then, that important rights should be prejudiced, especially after many years, and when the property in question has doubled many times in value, because of the omission, by mistake, of a formality which, in point of fact (whatever it may be in point of law), is so utterly useless?

Aside from these considerations of private right, it may be useful to enquire how far the free alienation of land is to be fettered by covenants to build, the performance of which is not insisted upon by the covenantee or his successors? Do these covenants run with the land, and if so, how long are they to be deemed to be in force, rendering titles insecure?

Railway Negligence-Remote Fires.

He sup

Dr. Wharton has contributed a most philosophical and instructive paper to the forthcoming (January) number of the Southern Law Review, on the liability of railway companies for injuries happening through the spread of fires originally ignited by sparks from their engines; in which he takes occasion to discuss the question more fully than he did in his work on Negligence. poses the case of a squatter who builds a shanty three hundred feet from a railway track, and leaves a mass of combustible materials to collect between it and the track. These combustibles are ignited by sparks from a passing locomotive, and the shanty is soon in flames. The same carelessness which left a lane of combustible materials from the railroad to the shanty, leaves a further lane of combustible materials to other buildings, constructed with equal recklessness a little further on. Over this continuous line the fire races rapidly, and by this process the suburbs of a city take fire, and the city itself is destroyed. Is the railroad to be confiscated to pay the resulting damages?

In the discussion of this question, Dr. Wharton enters upon