thrown and destroyed by the journal, as it now appears in its confused and unascertainable condition. The enrolled statute is not to be set aside upon mere guesses or surmises, nor upon a doubtful interpretation of a journal seemingly contradictory upon its face. Further, chapter 100 is now challenged before us for the first time. This statute has been recognized by both houses of the legislature; has been approved by the governor in the form as it now appears enrolled in the office of the Secretary of State; has been published under the authority of the Secretary of State as a valid statute; has been recognized by the legislature as an existing statute by the act appropriating money for the salary of the judge of the seventeenth judicial district for the years 1881 and 1882; has been acted upon by the chief executive of the State in the appointment and commission of a judge for the seventeenth judicial district; has been recognized by the people of the counties comprising that district by the election of the presiding judge, who passed the sentence upon the petitioner, and this court has upon several occasions examined and affirmed judgments in actions heard and tried by the judges of that district. Under all these circumstances, we do not hesitate to say that we would require the original journal of the house to establish beyond all possible doubt that the act was not concurred in by two-thirds of the constitutional members of the house before we would be willing to disregard and treat it as naught, when it seems to be surrounded and supported by so many appearances of absolute validity.

One thing further as to the conflict between chapter 98 and chapter 100. Both acts were approved March 5, 1881. It is contended on the part of counsel of the petitioner, that chapter 98 was the last expression of the legislative will. Even if this were true, the insertion of Ellis County in chapter 98 was evidently an inadvertence. Chapter 100 created the seventeenth judicial district, and mentions Ellis County as comprising a part thereof. It further provides for the holding of two terms of court in the county for each year. Chapter 98 provides for the terms of the court in the fourteenth judicial district, another and a different district than that in which Ellis County had been located by chapter 100. If it clearly appears from all the sources of interpretation that a provision of a statute has been inserted through inadvertence, it will be disregarded. Pond v. Maddox, 38 Cal. 572.

We must, therefore, upon this doctrine disregard the provision relating to Ellis County in chapter 98. Of course, if chapter 100 was the last enactment of the legislature, it would be valid and binding in all of its terms, notwithstanding the provisions of chapter 98, even if none of the provisions thereof had been inserted by inadvert

ence.

Several other questions have been fully and elaborately presented upon the hearing of this case, but the conclusion obtained makes it unnec

essary to consider them. Nothing appearing before us upon the record or evidence presented warranting any judgment annulling the conviction of the petitioner, he must be remanded into custody.

All the justices concurring.

BANK -CERTIFICATION OF CHECK, SUBSEQUENTLY RAISED-LIABILITY.

CLEWS v. BANK OF NEW YORK NATIONAL BANKING ASSOCIATION.

New York Court of Appeals.

A check drawn on defendant and sent by mail from Chicago to New York, addressed to D, the payee, was afterwards presented to and certified by defendant. It was thereafter changed by raising the amount and making plaintiffs the payees. The plaintiffs to whom it was presented as so altered were informed by defendant's paying teller, through a messenger, that the certification was good, and they thereupon delivered the bonds and took the check. Before the inquiry by plaintiffs, defendants had been informed of the nonreceipt by the payee of the check mailed, a duplicate was asked for, and payment of the original had been stopped. The teller, when the inquiry was made, did not know that the check shown him was the one which had been stopped. Held, that as the inquiry related only to the genuineness of the certification, and the attention of the teller was called to nothing else, the teller's answer imposed no greater or broader liability than if the check had then first been presented for certification, and the bank was not liable in an action to recover the amount paid upon the raised check."

Wheeler H. Peckham, for appellant; Albert A. Abbott, for respondents.

A check for $254.50, drawn by the Commercial National Bank of Chicago on the defendant. to the order of D, and by him indorsed to G, and inclosed in an envelop addressed to said G at 805 Broadway, in the City of New York, was deposited in the post office in Chicago. That check was afterwar's presented to and certified by the defendant. It was thereafter altered by changing the amount to $2,540, and the payee to C & Co., and by erasing the indorsement. As so altered it was presented to the plaintiffs in payment for bonds purchased by them. Before taking it plaintiffs sent a messenger to defendant's bank, and asked the paying teller to inform him whether the certification thereof was good. The paying teller answered yes. Thereupon the plaintiffs delivered the bonds and took the check. When the check was presented for payment the forgery was discovered and payment refused. Subsequent to the certification, and before the presentation by the messenger of the plaintiffs, the Chicago bank had written defendant a letter, advising defendant that the check number 73,486, indorsed over to G, and mailed from there to here, had not been received, and that D, the payes, requested a duplicate, and requesting defendant to stop payment

of original. At the time the messenger made the inquiry of the teller the teller did not know that the check shown him was the one for $254,50, payment of which had been stopped, and answered, in entire good faith, that the certification was good.

EARL, J., delivered the opinion of the court:

The plaintiff did not obtain lawful title to this check, and, therefore, can not enforce payment of it against the defendant, unless it is in some way estopped from denying its liability to pay.

When the defendant certified the check to be good, it assumed a liability like that of an acceptor of a draft. By the certification it guaranteed the genuineness of the drawer's signature, and represented that it had funds of the drawer in its possession sufficient to meet the check, and it engaged that those funds should not be withdrawn from it by the drawer to the prejudice of any bona fide holder of the check, and the certification did not impose upon the defendant any further or greater responsibility. It did not import that the body of the check was genuine or that the funds on deposit with it were absolutely applicable to the payment of the precise check certified. When, therefore, a check has been raised by some person without authority before certification, the certifying bank can not be called upon in consequence of its certification to pay the amount of the raised check; and when a bank has thus certified a raised check by mistake, and subsequently pays the money thereon, without any culpable negligence on its part, it can recover the amount thus paid as money paid by mistake. National Park Bank v. Ninth National Bank, 46 N. Y. 77; Marine Bank v. National City Bank, 59 N. Y. 67; Security Bank v. National Bank, 67 N. Y. 458; Espy v. Bank of Cincinnati, 18 Wall. 604. Precisely the same rule is applicable to the acceptor of a bill of exchange. By his acceptance he guarantees the genuineness of the drawer's signature but not the genuineness of any other names upon the paper or of the body of the paper in respect to the date and the amount thereof. If any of the names upon the paper other than the drawer's have been forged, or if the body of it has been altered by increasing the amount thereof, and the acceptor, without culpable negligence, pays the bill by mistake, not knowing of the forgery and alteration, he may recover back the amount paid as money paid by mistake, and whether the forgery and alteration were made before or after acceptance can make no difference.

Here it is conceded that if this check had been raised before the certification, that the defendant would not have been bound to pay the same, and that if by mistake it had paid the same it could have recovered the money back. But it is claimed that because the alteration and raising of the check took place after the certification, a different rule applies, and that the defendant, upon the facts of this case, was properly held liable.

It is true that the defendant, when called upon

The

by the plaintiff's agent before they took the check, could have discovered the alteration; but was it bound to discover it and inform the plaintiff? The agent of the plaintiff called upon the defendant during banking hours, and presented this check to the paying teller and told him that the plaintiff wanted to know if the certification was good, and he looked at it and said yes. At that time the bank owed the plaintiff no duty of active diligence to protect them from the fraud which the holder of the check was trying to perpetrate upon them. It was bound to act in good faith, and not to do anything or say anything intentionally or carelessly which would mislead them, or upon which they could properly rely in taking the check. The inquiry was not whether the body of the check was certified and was then in the same condition in which it was at the time of the certification. Nor was the inquiry whether the check was good for the amount thereof, or whether the amount thereof would be paid. The attention of the teller was called to nothing but the certification. It was presented to him while he was very actively engaged in the ordinary business of the bank paying and certifying checks. There was nothing calling his attention to the number of the check or the amount thereof, and there was nothing requiring that he should stop his business at that time and look at the records of the bank to see whether the check was then in the same condition it was in at the time of its certification. simple inquiry was whether the certification was good, and it went no further. Suppose the check had never been certified and the inquiry had then been whether the check was good, and the teller had replied that it was, such an answer would in law only have implied tha. the name of the drawer was genuine and that there were funds in the bank to meet the check, and the bank would not have been responsible for any alteration or forgery of the body of the check, and upon this point there is quite direct authority. In Marine Bank v. National City Bank, supra, which was an action to recover back money paid upon a check which was certified after it had been raised, it was held that the certificate in such a case means simply that the drawer's signature is genuine; that he has funds in the bank sufficient to meet it, and that the bank engages that those funds will not be withdrawn from the bank by the drawer, and Allen, J., writing the opinion, said: "Hence, in all reason, as well as legally, the inquiring of a drawee in respect to a check and the response, whether verbally or in writing, that it is good, must be held, in the absence of circumstances indicating a wider reach of inquiry and a broader answer, to relate to those facts and those only of which the drawee is presumed to have knowledge, viz., the two facts before mentioned." In Espy v. Bank of Cincinnati, which was a similar action, the facts were that a check was drawn by S & M on the bank for $2,650, in favor of H, and was raised to $3,920, and the payee's name changed from H to E H & Co., and was offered to

the latter, by a stranger, in payment for bonds and purchased by him. EH & Co. sent the check for information to the bank, whose teller replied, "It is good," or "it is all right," and it was held, among other things, "that when a party to whom such a check is offered sends it to the bank on which it is drawn for information, the law presumes that the bank has knowledge of the drawer's signature and of the state of his account, and it is responsible for what may be replied on these points, and, unless there is something in the terms in which information is asked that points the attention of the bank officer beyond these two matters, his response that the check is good will be limited to them, and will not extend to the genuineness of the filling in of the check as to payee or amount." Here the inquiry pointed to nothing but the certification. The attention of the teller was called to nothing else, and the response, when he said that it was good had reference only to the certificafion, and imposed no broader or greater liability upon the bank than if the check had then first been presented for certification. In Security Bank v. National Bank, 67 N. Y. 458, which was an action to recover the amount paid upon a raised check, it was held that the plaintiff was not estopped from alleging the forgery by the fact that its teller, at the time the check was presented for certification, upon doubts being expressed in regard to it by the person presenting it, stated that it was all right in every particular; and that it was no part of the teller's duty to give an assurance as to the genuineness of the check, except in respect to the signature of the drawer, and that beyond that the bank was not bound by his representations. Andrews, J., writing the opinion, said: "If the reply made to the question put to him was intended as an affirmation of the genuineness of the body of the check, it was simply an expression of his opinion, and must have been so understood by the person who made the inquiry." The inference here is as strong as in any of the cases cited that the inquiry related only to the genuineness of the certification, because the inquirer had no knowledge whatever of any of the facts that had previously transpired in reference to the check, or that any facts were in the possession of the bank not ordinarily possessed in reference to checks certified by it. It was the ordinary inquiry whether a check was good or whether the certification was good, and the reply was the ordinary reply that it was good, and imposed upon the bank the liability which such a reply, under ordinary circumstances, imposes. The bank was not called upon for any of the facts in its possession in reference to this draft. But if the inquiry had been broader the bank might have been bound in good faith to have disclosed the facts, and might have been chargeable with bad faith or negligence in not disclosing them, and thus made liable upon this check. But here there was no question of bad faith or negligence submitted to the jury, and they were charged that if the check was presented to the

paying teller with the inquiry alleged, and he replied that it was good, the bank thereby became absolutely bound to pay the same to the plaintiffs.

If the check had been presented for payment, then undoubtedly a different question would have been presented to the paying teller for his consideration. It would then have been his duty to take notice of the facts in the possession of the bank, and payment under such circumstances would have been such a careless act that it would have been held that the bank could not recover back the money.

When the paying teller said that the certification was good, that declaration did not import that there was the amount of money named in the check in the bank absolutely applicable to the payment of the check in any other sense than if the certification had been made after the check had been raised. The certification of a check never imports that there is money in the bank absolutely applicable to the payment of the amount named in the check. On that point it simply imports that the drawer has money to the amount of the check which will not be withdrawn, and which will be paid upon the check if it is properly payable thereon; that is, by the certification, of the drawee bank becomes responsible to pay the holder whatever is properly due upon the check, and nothing more. The same principle would have to be applied if the defendant had been an individual acceptor of a draft. Then the inquiry would have been whether the acceptance was genuine or good, and the answer that it was good would not have imported that the draft was good for the amount for which it then appeared to have been drawn. If the acceptor in such a case actually knows that the draft has been raised and is thus not good for its face, he would be bound, acting in good faith, to disclose that fact. But if at the time he did not know it and was not aware of any defect in or defense to the draft, his reply that his acceptance was good would not of itself estop him, when called upon for payment, from asserting that the draft had been raised or otherwise altered after its acceptance. He might be engaged in accepting so many drafts, or be so situated or engaged at the time that such an inquiry calling attention to nothing but his signature would not bring to his notice the fact that the draft was not then in the same condition as when his acceptance was written. When such an inquiry is made by an acceptor all that can be required of him is that he shall answer in good faith. If the holder desires more accurate information, his inquiry should be more specific and far-reaching before he can transfer a loss caused to him by the fraud of the person with whom he deals to the innocent acceptor.

Here the teller of the bank made no mistake; he answered truly the question put to him. He did not mislead the plaintiffs. They relied upon the certification, which was genuine, and undersuch circumstances there can be no reason for giving them a remedy against the defendant.

They dealt with the forger and suffered wrong from him, and there can be no rules of law or justice which should, upon any facts now appearing, visit the consequences of this wrong upon the defendant.

Our conclusion is, therefore, that the judgment should be reversed and a new trial granted, costs to abide event.

ANDREWS, C. J., RAPALLO and MILLER, JJ., concur; DANFORTH, J., for affirmance, TRACY, J., concurs.

WEEKLY DIGEST OF RECENT CASES.

MICHIGAN,

NEW JERSEY,

19

3, 6, 7, 18, 29, 30

FEDERAL Circuit Court, 2 FEDERAL SUPREME COURT, 1, 4, 5, 8, 9, 10, 11, 12,13, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 25, 26, 27, 28, 31

1. APPELLATE PRACTICE-JURISDICTION OF LOW ER COURT CEASES UPON THE ACCEPTANCE OF BOND. After the acceptance of the bond required by the judge of the lower court in awarding a surpersedeas, the jurisdiction of the lower court ceased and of this court vested, and the lower court had no jurisdiction to make an order requiring additional security, and in default thereof vacating the former allowance of an appeal. Keyser v. Farr, U. S. S. C., March 27, 1882. 4 Morr. Trans. 358. 2. ATTORNEY AND CLIENT - LIEN ON SUBJECTMATTER.

An attorney has no lien for fee unless conferred by statute, and a party to a suit has an undoubted right to settle his suit without the consent of his attorney. Swanston v. Morning Star Min. Co., U. S. C. C., D. Colorado, June 19, 1882, 2 Col. L. Rep. 563.

3. ATTORNEY AND CLIENT- SPECIAL CONTRACT OF SOLICITOR FOR COMPENSATION-ALLOWANCE OUT OF FUND BY COURT.

When there is an express agreement between solicitor and client, whereby solicitor undertakes to do certain services respecting client's interest in an estate for a certain sum stipulated to be paid by client, and in the performance of the duty so undertaken the solicitor takes proceedings in client's behalf in the court of chancery, which results in settling the estate and severing and securing client's share, and entitles him, under the agreement, to the specified compensation; in an action therefor the client ought to be credited with a sum allowed by the chancellor to the solicitor in the proceedings in chancery out of the general funds of the estate, when it appears that the services rendered by the solicitor in those proceedings were such as were included in his contract with his client. Shreve v. Freeman, S. C. N. J., February Term, 1882, 44 N. J. L. 78, Reporter's Advance sheets.

the debt. A firm transferred to a party, as collateral security for a loan, certain shares of a State bank, who sert the certificate to the cashier, and requested a new certificate, and received in reply a letter agreeing to transfer the stock in a short time, it being the custom of the cashier to attend to the stock transfers without consulting with the directors, and the cashier credited him with the stock on the bank books. The cashier was a member of the firm assigning the stock. The firm failed, heavily indebted to the bank, which then refused to transfer the stock. On suit in equity to compel it: Held, 1. That the bank, by the act of its cashier, which was binding on it under the circumstances, had waived its lien on the stock, though originally entitled to it. 2. That the title of the stock passed independent of the certificate, which is mere evidence of title, when the bank credited the holder with it on its books, and that the bank thereby irrevocably consented to trust him just as if he were the original subscriber to its stock. 3. That by delaying the assertion of its claim till the party holding the stock had lost all chances of obtaining other security, and by leading him to suppose himself secure by its course of dealing with him, it was estopped from asserting any lien that it had. Cecil National Bank v. Watsontown Bank, U. S. S. C., April 13, 1882, 4 Morr. Trans. 400.

5. BOND-NEGOTIABILITY—SUBSEQUENT INDORSEMENT TO BEARER."

A bond of a South Carolina corporation made originally payable to "W. J. Gayer, receiver," but with a subsequent indorsement by the obligor agreeing, in consideration of forbearance, to pay to bearer, becomes by such indorsement a negotiable instrument, although under seal, and its holder may sue on it in the Federal courts, although the original obligor could not. Marine and River Phosphate Min. and Mfg. Co. v. Badley, U. S. S. C., April 3, 1882, 4 Morr. Trans., 384.

6. CONSTITUTIONAL LAW-SPECIAL LEGISLATION. 1. An act which regulates the salaries of certain city officers, which is, and never can be, applicable to but a single city, is unconstitutional. 2. Such act is void, as it is a special and local act. 3. It is also void when in its title it declares its purpose is to fix and regulate the salaries of city officers in cities of this State," such purpose being misdescribed, as its purpose is to regulate the salaries of officers in a single city. Coutieri v. New Brunswick, S. C. N. J., February Term, 1882, 44 N. J. L. 58, Reporter's Advance Sheets.