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Hicks, 1 Cow. 513. The decision in Hill v. Bannister, the money did so in good faith, and without knowl8 Cow. 31, is not in harmony with these decisions, edge thereof;(1) so by a stockholder, whose stock has nor has it been followed in this State. There the been sold under a forged power of attorney, against defendants gave their note with the addition of the party who holds the proceeds of the sale; (2) by

Trustees of Union Religious Society, Phelps," the owner of the draft issued by the government for and proved that it was given for a debt due from the his bounty or back pay, against one who received it society. The court, nevertheless, held the defendants through a forged or unauthorized indorsement; (3) to be personally liable.

by the owner of a draft against one who, as agent for As a general proposition it is undoubtedly true, that a party who acquired his title thereto, under a forged . one who signs a writing as agent,'

indorsement, collected the same without disclosing “president,” is regarded as merely describing himself, his agency, and paid over the proceeds of such coland hence is held to be personally liable. Taft v. lection to his principal. (4) Brewster, 9 Johns. 334; Stone v. Wood, 7 Cow. 453. An action will not lie by one claimant of money But when a writing is thus executed, with full author

due under a contract with the government against ity from a principal, the party on whose account it is another, when the same is paid by an officer thereof, executed is alone liable. Bank of Genesee v. Patchin to the claimant, with notice of the claims of both, notBank, 19 N. Y. 315. In this case the several New withstanding the plaintiff proves himself to have been York decisions are examined and the above principle entitled, as between himself and the defendant, to announced. There, S. B. S., cashier of a bank, sent have received such moneys from the government; (5) plaintiff, to be discounted, a bill of exchange, dated and so in all cases where two persons claiming adten days previous, payable to the order of S. B. S., versely to each other apply for payment to the debtor, Cash., indorsed by him, with the same addition to his and one of them is recognized as the creditor, and paid signature, and inclosed in a letter, dated at the bank to the exclusion of the other.(6) The distinction ing-house, and signed S. B. S., Cash. It was held that between the latter cases, and those where one receives these circumstances imported that the indorsement the money of another through the means of a forged was that of the bank, and not that of S. B. S. indi-indorsement, is apparent. In the one case, the party vidually. So it has been held that an indorsement of receiving the money receives it as his own, claiming a note to the cashier of a moneyed corporation, by under an independent title, and without in any way adding the word “cashier” to his name in the indorse- claiming through the other party; in the case of a forged ment, is a transfer to the corporation when that was indorsement, the person receiving the money necessathe design of the transaction. Watervliet Bank v. rily does so, admitting that it originally belonged to White, 1 Denio, 608. And so an officer of a corpora

the payee, and that he is receiving it under or by tion to whose order, as such, a note executed to it is virtue of his rights. Where one, by mistake, receives payable, and who indorses the note, adding to his plaintiff's wheat, sells it as agent for another, and name his official character, and negotiates it on behalf accounts therefor to his principal, he is, nevertheless, of the corporation, is not personally responsible as liable to the plaintiff; (7) so, generally, the action lies indorser. Babcock v. Beman, 11 N. Y. 200; see, also, to recover back money paid by a mistake of fact; as Bank of N. Y. v. Bank of Ohio, 29 id. 619.

by a subsequent judgment creditor against a prior one The true rule of construction is said by Mr. Justice to recover moneys paid by the sheriff, with plaintiff's Story to be “that if it can, upon the whole instru- assent, he mistakenly supposing defendant's execution ment, be collected, that the true object and intent of had not expired at the time of making the levy. (8) the instrument are to bind the principal and not to The right to the salary or emoluments of an office debind the agent,” courts of justice will adopt that pends upon the performance of the duties thereof; one construction of it, however informally it may be who was deprived of the right to perform them by an expressed

(1) 1 Chit. Pl. 352.
(2) Marsh v. Keating, 1 Bing. (N. C.) 198, 27 Eng. C. L. Rep.

(3) Holtsinger v. National, etc., 37 How 203, affirmed by ACTIONS FOR MONEY HAD AND RECEIVED,

Court of Appeals, Feb. 14, 1871;3 Alb. Law Jour. 305.

(4) Holt v. Ross, 4 All). Law Jour. 11; Canal Bank v. Bank AND MONEY PAID.*

of Albany, 1 Hill, 287; Schaffer v. McKee, 19 Ohio St. 526.

(5) Butterworth v. Gould, 41 N. Y. 450.

(6) Patrick v. Metcalf, 37 N. Y. 331 ; Murphy v. Ball, 38 Barb. Money had and received. (1) — This action lies to recover money in the hands of one person equitably

(7) Cobb v. Dows, 10 N. Y. 335.

(8) Kingston Bank v. Eltinge, 40 N. Y. 391. This case, and belonging to another, (2) as where one has received Butterworth v. Gould, supra, are apparently, but not really,

we think, in conflict. In Butterworth v. Gould the creditthe money of another through the intervention of a or's remedy against the debtor remained unaffected by the forgery by a third person, although he who received

payment. In Kingston Bank v. Eltinge, although defendant claimed the money as his own under an independent title, the plaintiff's assent to the sheriff paying the money

to defen

dant precluded him from maintaining an action against the * From Mr. Moak's forthcoming edition of Van Santvoord's Pleadings.

sheriil to recover what was really his own, and what should

have been paid to him. In one case the debtor decided for (1) Upon the subject, generally, see 2 Conway, Rob. Prac. himself, and at his peril, who was the creditor; in the other 449-488; 1 Chit. Pl. 351 et seq. ; 1 Cow. Tr. (Kingsley's ed.) 88 the creditors themselves decided it for him, but did so under 307-316; 1 Wait's Law and Prac. 706 et seq. ; 1 Estee's Plead. a mistake of facts, which, as between themselves, rendered the and Prac. 464-476.

consent legally invalid, and which left the money subject to (2) 1 Chit. Pl. 351, note 3 ; Buel v. Boughton, 2 Den. 91. the plaintiff's equitable rights thereto.



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officer de facto cannot maintain an action against the

government for the salary, on the ground that the payés ment thereof to the de facto incumbent was wrong

ful (1) It has been repeatedly held, that an officer de jure may maintain an action against a de facto incumbent receiving the salary or emoluments of an office ;(2)

but this, under the recent cases, may be doubted, be unless the courts, to accomplish an act of seeming juserak

tice, are able to make a distinction more subtle than

now occurs to us between such a case and that of an is ordinary creditor of the government, who receives

payment of a demand under an independent claim of do right thereto.

If it be said that an officer de jure may Gif practically be deprived of the emoluments of an office, er the answer is, that he has no legal claim thereto, except tä: where he acquires it by a discharge of the duties bare thereof. (3) An agent who receives the note of a nic debtor to his principal, and sells the same for less than

its face, is liable to his principal, in an action for money C had and received, for the face of the note. He will be

treated as having made himself answerable to his prin2. cipal for the full amount he ought to bave received

from the debtor. (4)

Money paid by an agent under a mistake as to the s legal obligation of his principal may be recovered

back by the principal, in an action for money had and

received, as, for instance, where a government colIIT lector improvidently and mistakenly pays a fishing

bounty to a vessel which has not been enrolled in a manter entitling her to the bounty; (5) so where the principal himself so pays the money, (6) or where a person who is not entitled to a pension fraudulently obtains one, and the money is obtained by another with notice thereof. (7)

Money paid to defendant, and for his use. (8)—One who refuses to perform a contract, on the ground that it is void by the statute of frauds, cannot recover what he has paid thereon, if the other party be ready and willing to perform. (9) If the vendor have not refused to perform, the vendee cannot recover back what he paid upon the contract without averring and showing that the vendee's title is absolutely bad. It is not sufficient to show it doubtful.(10) The rule is different in an action at law, from a suit in equity by the vendor, to compel the specific performance of a contract to purchase. (11)

One who pays money is not bound to show he

paid it in the discharge of a liability, binding either on the plaintiff or on the defendant; it is enough to show that it was paid in accordance with an uncountermanded authority, or in compliance with an express or implied request, (1) as an usurious note; (2) or an agreement void by the statute of frauds; (3) or on bets which were illegal; (4) the principal can only prevent the surety who pays an usurious debt from recovering, on the ground that he expressly forbade his doing so before the payment was made. (5)

It has been held that money paid to another for an illegal purpose, as for betting, cannot be recovered back, though it be never used for such purpose ; (6) but

ster a retrial of the case, it was held, on appeal, that is the money was not, in fact, used according to directions, or if the plaintiff had countermanded his instructions before it was so used, it might be recovered back; (7) so it has been held in Massachusetts, that an indorser who pays a note before it is protested, and he charged as indorser, cannot recover the money so paid, on the ground that the payment is gratuitous, (8) but the court did not notice a prior decision in that State to the contrary, (9) and the English courts have held the reverse.(10) The rule, however, only enables the surety to recover of a principal debtor, on the ground ofan implied request, until countermand, to pay the obligation. It does not apply against a surety. Where sieties in a bail bond had the right to surrender their principal, before suit brought against them, and one of them being sued before the other paid the bond, held, he was not entitled to contribution; that he had paid the bond before his co-surety became fixed, and had no right to thus deprive him of his right to surrender the principal. (11) In this case the co-surety was not, as will be readily seen, the principal debtor, and the law would not imply a request to his co-surety to pay the inchoate obligation. Where a surety on a bill, after acceptance, paid it before it was demanded of the acceptor, and protested as against the drawer, it was held, he could not recover of the drawer, for as soon as it was accepted he was not the principal debtor, but a surety for the acceptor, and could only be made liable upon the bill aster demand and protest. (12)

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Hon. John M. Reed, associate justice of the supreme court of Pennsylvania, denies that he has any idea of resigning his seat on the bench.

(1) Smith v. Mayor, etc., 37 N. Y. 518. This case must be held to overrule People v. Brennan, 30 How. 417; 1 Abb. (N. S.) 184; although nothing is said therein of the latter. See, also, Montgomery v. United States, 5 Court of Claims Rep. 93, where an officer was dismissed and reinstated. (2) Platt v. Stout, 14 Abb. 178;1 Chit. Pl. 100, and cases cited. (3) Smith v. Mayor, etc., 37 N. Y. 518.

(0) Allen v. Brown, 51 Barb. 86; Van Rennselaer v'. Morris, 1 Paige, 13; Beardsley v. Root, 11 Johns. 464.

(5) U.S. v. Bartlett, Davies' 9, Ware District Judge. (6) Pitcherv. The Turin, etc., 10 Barb. 337. (7) U.S. v. Inhabitants, etc., Davies', 154, Ware, D. J. (8) Upon the subject, generally, see 2 Conw. Rob. Prac. 434, et seq.: 1 Estee's Pl. and Prac. 481, et seq.; 1 Cow. Tr.(Kingsley's ed.) $8 317-330 b.; 1 Wait's Law and Prac. 698, et scq.

(9) Moak's note to Clarke's Ch. 350, marg. p., and cases cited; see also Simon v. Kaliske, 6 Abb. (N. S.) 225. (10) O'Reilly v. King, 2 Rob. 587. (11) O'Reilly v. King, 2 Rob. 587.

(1) Alexander v. Vane, 1 Mees, and Wels. 511; Brittain l. Lloyd, 14 id. 762 ; Ford v. Keith, 1 Mass. 139; Shaw 1. Loud, 12 id. 417; Harpinger 1. Solms, 5 Serg. and Rawle, 4; 1 Cromp. and Mees. 480, note (Johnson's ed.); Armstrong 1. Toller, 11 Wheat. 258; Bullard 2. Raynor, 30 N. Y. 197; see Rust 1, Morse, 2 Hill, 656; and Theob. Pr. and Surety, 173, and cases cited.

(2) Curtis 2. Leavitt, 17 Barb. 311. (3) Rust 1'. Morse, 2 Hill, 656, 657; Pitman Pr. and Surety, 130. (4) Knight 1. Chambers, 15 C. B. 561, 80 Eng. C. L. (5) Forų 1. Keith, 1 Mass. 139, 142. (6) Morgan 1'. Groff, 5 Den. 364. (7) Morgan 1. Groff, 4 Barb. 524. (8) Bachelor i'. Priest, 12 Pick. 399. (9) Ellsworth 2. Brewer, 11 Pick, 316. (10) Hantly 1. Sanderson, 1 Cromp. and Mees. 467. (11) Skillin 2'. Merrill, 16 Mass. 41. (12) Monroe 1. Easton, 2 Johns. Cas. 75.

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particular subject to master, say restraining the

transfer of negotiable instruments; and a few days There is an ominous silence on the part of the

after propose a case to him containing a state of facts secretary of state, in regard to his proposed action

calling for the application of the principles of that subunder the smuggled provision for extending the con

ject, and ask him what advice he would give a client tract for publishing the court of appeals reports. It

having such a case. The chances are that he will has been rumored for some time that he has extended

fail to discover the application of the principles and the contract, but we do not believe it; because we do

will answer incorrectly. Now, it seems to us that not believe that any man, even ordinarily honest,

there is no difficulty in the way of our law schools the world goes,” would voluntarily make himself a party to a fraud so gross and an outrage so palpable. thing to be done is to require every student to so

The first

combining the practical with the abstract. Should the secretary conclude to sanction the exten

familiarize himself with the ordinary forms of instrusion, we trust that he will have the courage to let the fact be known, as it is a matter in which several thou

ments, from a summons to a will, that he will be able

to drast them at any time without the aid of a form sand people of the State have something more than a

book or printed blank. Let the instructor put himpassive interest.

self in the place of a client, desiring, for example, an Next to the czar of Russia commend us to Wash

action commenced or a will drawn, and let him state ington officials, as specimens of autocracy. To say

the facts and require his pupils to draft a complaint nothing of the pension bureau and the patent office,

or a will, and then let him examine these drafts and the revenue department will answer as an illustration. point out the errors therein. In the second place, nisi Directly after a new commissioner is inducted into prius courts should be formed, with the instructor as office, he sets himsell to work to reverse the decisions judge, and a portion of the students as jurors. A supof his predecessor, which is perhaps of little conse

posed case should be prepared for the plaintiff, and quence; but not satisfied with this

defense for the defendant. Counsel should be assigned, d'état, he COUP

goes about reversing the decisions of the courts. Some

issued, pleadings prepared, witnesses time ago, Judge Strong, of the United States supreme

instructed, jury impanneled, the case tried, summed court, sitting at circuit, decided that the United States

up, verdict rendered, judgment entered, and appeal was not entitled to recover from railroad corporations

taken precisely as is done in actual practice. This the tax on dividends declared within the first seven

scheme may seem chimerical, but, having seen it sucmonths of 1870 (see 2 Albany L. J. 296); but the new

cessfully and beneficially operated, we know that it commissioner, Douglass, has reversed that decision,

is not. In this manner, and this only, can the student and directed his subordinates to collect the tax,

familiarize himself with the details of practice and the “ without reference to the decision of Judge Strong.”

examination of witnesses, a lack of familiarity with which is so apt to mar the reputation and impede the

progress of a young lawyer. We have thrown out The commercial colleges of the country have adopted these hasty suggestions with the hope that they may a system of education that might be usefully adopted lead to a more practical, and, therefore, more thorough, by the law schools—a combination of the theoret-teaching of the law. ical and practical. Most law schools pretend to turn out “ ready-made lawyers” at every commencement, which every body knows they never do. Their

GENERAL TERM ABSTRACT. graduates are usually full of theoretical law, so to

SUPREME COURT—SECOND DEPARTMENT. speak, but know nothing of its practical application. Their moot-courts, of which so much is said, are nothing more than debating societies, where ques

Abstracts of title: when to be retained by mortgagee.

The plaintiff had applied for a loan upon certain of his tions of law are discussed. These discussions, un

property, to Mrs. Cutler. Defendant was her attorney. doubtedly, help to fix the law in the mind, and, Searches were to be made by defendant at plaintiff's perhaps, give the student a certain amount of training expense, the searches so made to belong to Mrs. Cutler. that may be useful to him in arguing an appeal before To save the expense of a portion of this search, the the court in banc a duty which lawyers seldom

abstract of title in question was delivered by plaintiff have to perforin in the early stages of their professional

to defendant. No search was made as to the premises

covered by the abstract. The loan was made. On life. Undoubtedly, a knowledge of the law is the

appeal from judgment in favor of plaintiff, for return first thing to be acquired, but there is no reason why of the abstract, held, that the disputed abstract was a a knowledge of the practice should not be acquired part of the security for the loan. In case of a sale of at the same time. Indeed, there are strong reasons the mortgage, or of a foreclosure, it would be necessary why it should, and one of them is, that the mind is

that Mrs. Cutler should have it, or that another should

be made. Plaintiff substituted his abstract in place of scarcely able to retain the abstract and theoretical ;

one to be made by defendant, and he must pay his or if it does retain it, to apply it at the proper time

mortgage before he is entitled to its return. Judgment and to the proper state of facts. Give a student a reversed. Holm v. Wost. Opinion by Barnard, P. J.


CITY OF BROOKLYN. See Real Estale; Also, see Statutes.


APPEAL. 1. An appeal brings up only the papers on which the judgment in the court below is founded. The court on appeal has no jurisdiction to grant a new trial upon the ground of newly discovered evidence, by motion, in the first instance. The affidavits accompanying the appeal papers, in this case, not having been presented to the court below, cannot now be received. Wood v. Ross. Opinion by Barnard, P. J.

2. Case on appeal: failure to serve may be remedied by order.—Defendant had appealed in good faith, but, by misapprehension, had neglected to serve his case as required by the rules and practice of the court. The court below allowed defendant to do this after the time for so doing had expired. Held, that the court below properly granted defendant the right to serve his case; that it was in furtherance of justice, and without such order the appeal would have been of no practical importance. Order appealed from affirmed. Ib.

What is a delivery to a common carrier.-It appeared in this case that an expressman took the trunk in question to the depot of defendant about noon.

It was marked “Israel Rogers, Riverhead, Long Island." He found inside of the depot gate two or three men uilloading freight, of whom he inquired who took care of baggage. They told him the man in the office, He went to see the man in the office, and told him there was a trunk outside. He replied “all right," and immediately sent two men to take care of it. The trunk was left by the expressman in the place where the baggage was kept and near the baggage crate, which at the time was locked. The man in the oliice had been defendant's ticket agent for some years. At about three o'clock in the afternoon the plaintiff went to the office and bought his ticket for Riverhead and asked the agent for his trunk. He said he had seen a trunk answering the description, a short time before, but he did not know where it then was. The employees of the company subsequently informed plaintiff that the trunk had been given to an expressman who had a check corresponding to the one ou the trunk. Heli, that the case should have gone to the jury. It is enough to establish a delivery, in the first instance, to prove that an agent of the company received and accepted the property for transportation, even if there be, in fact, another person who is proved to be the actual agent having charge of the receipt of freight. The case of Grosvenor v. N. l. Central R. R. Co. does not control this case. Rogers v. Long Island R. R. Co. Opinion by Barnard, P. J.

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BILLS, NOTES, ETC. 1. Bona fide holding for value.-On the trial of this case, the court held, as a matter of law, that the plaintiffs were not bona fide holders for value of the note in suit. It appeared that Vail, from whom the plaintiffs obtained the note, was indebted to the plaintiffs for rents collected, in the sum of $289, immediately payable. The note amounted to $15 more than this debt. The note was taken in settlement of the debt so due, and by allowing Vail to retain $15 out of the next months' collections of rents, to be made by him for plaintiffs, which was so collected and retained before the maturity of the note. Held, that the ruling of the court below was erroneous. The transaction, if done in good faith, and without notice of the fraudulent diversion of the note by Vail, constituted plaintiffs bona fide holders for value within the cases. Plaintiffs settled their claim against Vail, extended the time of payment and advanced a new consideration. There was nothing in the fact that Vail was in arrear $30 for the rents due the preceding month, which, as a matter of law, made it the duty of plaintiffs to inquire as to the note. Mason et al. v. Hickox et al. Opinion by Barnard, P. J.

2. The plaintiffs, in the usual course of their business and for value, discounted for Balch & Co., a draft made by defendants, and payable to their own order, and directed to Balch & Co., before maturity. On appeal from judgment in favor of plaintiffs for amount of draft, held, that it is immaterial whether Balch & Co. used a portion of the proceeds to take up a note of their own, either just due or about to mature at plaintiffs bank. In either case the plaintiffs would be bona fide holders for value. Assuming that Balch & Co. fraudulently used the draft to which they had no real title as against defendants, it makes no difference. The draft was, as to plaintiffs, lawfully in Balch & Co.'s possession. In such cases commercial necessity requires that the bona fide holder be protected. The rule claimed by defendants, that Balch & Co. could, themselves, sue no one on the draft, and were, therefore, uot the apparent owners, cannot be accepted as correct. Judgment affirmed. Central Bank of Brooklyn v. Hammett & Neill. Opinion by Barnard, P. J.

See also consideration.

CONSIDERATION. The defendants made an agreement with one Miller, by which Miller was to do work for defendant. Miller partially performed, and failed to complete the contract. Defendant desired to employ others to complete the work. It seems that there was an agreement or understanding among the persons doing the same kind of work which Miller had agreed to do, that they would not take an unfinishel contract and complete it without the payment by the employer of the contractor who had failed to perform the work, or without the consent of such contractor. In order to induce the contractor to give such consent, plaintiff gave him his promissory note. IIeli, the only consideration for the note in suit was the consent of the contractor that some other one might finish the work. It was not suficient to uphold the note. It had no legal value. Miller parted with nothing. Defendant got nothing. Judgment reversed and new trial ordered. Willis v. Rollin. Opinion by Barnard, P. J.

Also, see Notes.

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CORPORATIONS, Liability of stockholders under the general manufacturing aci:-The Empire Planing and Moulding ('ompany was incorporated under the general manufacturing act. Its capital stock was never paid in, and no certificate that it had been so paid in was ever filed as required by said act. The certificate of incorporation states the capital at $100,000. Action against defendant, a stockholder, on his alleged personal liability to pay the debts of said corporation. On appeal from julg. inent in favor of defendant, helit, that the (pal


stock must be paid in money. The amendment of recover damages for the death of his decedent occa1855, authorizing the trustees to purchase necessary sioned by the collision of a locomotive and train of property and issue stock therefor, does not repeal the cars, and a wagon in which said decedent was crossing law of 1848. If the trustees were authorized by this the track of the defendant upon a public highway, amendment to take property in lieu of capital in held, that the declarations of a fireman employed on money, they could not legally issue stock beyond the the locomotive at the time of the collision, made upon value of the property so taken. In this case they the arrival of said train, bearing the body of the issued stock for $100,000 for property of not half that deceased, at a station one mile from the place of the in value. Defendant is liable to pay the plaintiff's accident, the train having been stopped at the scene of debt. Judgment reversed. Boynton v. Hatch. Opin the accident, and the body having been placed upon it ion by Barnard, P. J.

and carried thereon to said station, that the train was Also, see Common Carriers.

running between forty and sixty miles an hour; that COSTS.

he could not tell any difference between the signal and In this case defendant pleaded title before the jus

the collision; that the deceased was sitting with his tice, and gave the requisite undertaking, with his

back toward the train; that he did not think the The justice had no jurisdiction to try the

deceased saw or heard the train or knew there was any issue made by the defendant. Plaintiff brought his

train in reach of him; that the deceased never moved action in the supreme court and recovered a verdict of

out of his position till he was struck; that there was $5.00 for a trespass upon the lands to which defendant

no signal, were not admissible in evidence as part had set up a claim of title. By section 304 of the code,

of the res gestæ. The Bellefontaine Railway Company costs are allowed, of course, to the plaintiff upon a

v. Hunter, administrator. recovery “in the actions of which a court of justice of

2. Presumption as to improper evidence. - Where the peace has no jurisdiction.” Plaintiff was entitled

error has occurred in the admission of improper to costs. Randals and ano. v. Thornton. Opinion by

evidence material to the issue, it will be presumed that Barnard, P. J.

it worked injury, unless the contrary affirmatively

appear; and the action of the court in overruling a COVENANTS. See Life Insurance.

motion for a new trial assigning such error for cause DAMAGES.

is not presumptive evidence that the error worked no

injury. Ib. Evidence in cases of assault and battery: vindictive damages. — Action for damages caused by an assault

3. Cross-examination: alteration of written instrument. and battery. The assault grew out of a dispute as to

On the trial of an actiou on a promissory note given for certain property. Held, that the court erred in reject

a quantity of barley sold by the payee to the maker, ing the evidence offered as to the possession of the

where the question at issue was, whether the note was property which was the subject of the dispute between

executed for the sum specified therein or was made for the parties. The evidence offered in no way justified

a sum one hundred dollars less and altered by the payee the assault and battery, but the damages for the injury

to the greater sum, the maker, called as a witness by had to be assessed by the jury. Such damages might

the plaintiff, testified, that the signature was his, but, be made up of the actual damages sustained, and if

over the plaintiff's objection, further testified that the

note had been so altered by the payee after its executhe case were a fitting one, of punitive or vindictive

tion; that the maker could not read English writing; damages. It was of the utmost importance in assessing vindictive damages that the jury should know whether

that the note was written by the payee and by him read

to the maker as for the smaller sum; whereupon, the the assault was committed wantonly and without cause, or under a belief that the defendant was assert

payee on his own behalf testified, that the sum of one ing a legal right. Such a belief would not affect the

hundred dollars was to be paid in cash on the barley; actual damage, but might destroy every thing but such

that when he was writing the note, the maker said he actual damage. We cannot say that the jury gave no

could not then pay the one hundred dollars, whereupon vindictive damage. If they did, they should have had

he wrote the note for the larger sum. On cross-exambefore them the rejected evidence. Judgment reversed

ination the payee was asked, whether, when he wrote and new trial granted. Linde v. Elias. Opinion by

the note, and before it was signed, he stated to the

maker that it was for the smaller sum, and whether he Barnard, P. J. (Concluded next week.)

did not so read the note to the maker, which question being objected to as not proper cross-examination the

court refused to permit it to be answered. Held, that DIGEST OF RECENT AMERICAN DECISIONS. such refusal was error. Schneider v. Rapp.


CORPORATION. Promissory note. — A corporation known as “The Aurora Brewing and Malting Company” executed a note signed “C. C. Kelsey, Assistant Secretary Aurora Brewing and Malting Company.” Held, that this was the note of the corporation, and not that of C. C. Kelsey, personally. Gaff et al. v. Theis.

EVIDENCE. 1. Declaration of agent or servant. — In an action against a railroad company by an administrator, to

NEGLIGENCE. Railroad. No neglect of duty on the part of a railroad company will excuse any person approaching on a highway a crossing of the track of said company from using both the senses of sight and hearing, where either of these may be available; and injury to such person where the use of such faculties would have given sufficient warning to enable him to avoid the danger, conclusively proves negligence, and there can be no recovery for such injury, unless the railroad company has been guilty of such conduct as to imply an intent or willingness to cause the injury; and this can be attributed only where the company has notice of the particular emergency in time to avoid the collision by the use of

*From Hon. James B. Black, State Reporter, and to appear in 33 Indiana.

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