law as declared by the courts of the State, instead of making the presentment and demand personally, they could have placed the notes in his hands for the performance of that duty. As it turned out that the maker had neither domicile nor place of business in the city, and was absent at the time from it, no demand upon him there was possible, nor was that essential to charge the indorsers.

The law on this subject we consider to be wellsettled, as will be seen by an examination of the numerous adjudged cases as to what constitutes due presentment and demand of payment of commercial paper, and what will excuse both. The only point upon which we find any marked difference of opinion in them respects the liability of the collecting bankers for the manner in which the notary, to whom the notes are delivered for presentment and protest, discharges his duty. In the State of New York the doctrine obtains that bankers, to whom notes are entrusted for collection, are responsible for the failure of agents employed by them in the presentation of the notes to the maker and in protesting them when not paid, though the agents are notaries exercising a public office and especially charged with the performance of such duties. In the case of Allen v. Merchants' Bank, it was decided by the court of errors of that State that the liability of the bank extended to any neglect of duty, by which any of the parties to a bill are released, whether arising from default of its own officers or servants, or its correspondents at a distance, or agents employed by them. Previously a more limited liability was supposed to rest upon a collecting bank. In that case the bill was drawn in New York upon parties in Philadelphia, and placed in the defendant's bank of the former city for collection, and by it forwarded to a bank in Philadelphia. The latter bank handed it to a notary to present for acceptance. He presented it, but omitted to give notice of its non-acceptance, by which a responsible indorser was released. The action was against the collecting bank to recover the amount of the bill, and was brought in the Superior Court of the City of New York, where the jury was charged that the defendant was, upon general principles of law, independently of any custom or usage, or of any agreement, express or implied, only bound to transmit the bill to Philadelphia in due time to some competent agent; and that it was not liable for his negligence or omission in giving notice of its non-acceptance. Judgment having passed for the defendant, the case was taken to the Supreme Court of the State and was there affirmed. That court, speaking through Mr. Justice Nelson, said that "a note or bill of exchange left at a bank and received for the purpose of being sent to some distant place for collection, would seem to imply, upon a reasonable construction, no other agreement than that it should be forwarded with due diligence to some competent agent to do what should be necessary in the premises. The lan

guage and acts of the parties fairly import so much, but nothing beyond it. The person leaving the note is aware that the bank can not personally attend to the collection, and that it must, therefore, be sent to some distant or foreign agent," and that there seemed to be nothing in the nature of the transaction which could reasonably imply an assumption for the fidelity of the agent abroad. 15 Wend. 481, 488. The case being carried to the court of errors, the decision of the Supreme Court was reversed, and the doctrine declared that the bank was responsible for all subsequent agents employed in the collection of the paper. The reversal was by a vote of fourteen senators against ten, Chancellor Walworth, who composed a part of the court of errors in cases appealed from the Supreme Court, voting with the minority and giving an opinion for affirmation of the judgment. Senator Verplank delivered the prevailing opinion. 22 Wend. 215. The decision has since been followed in New York, and its doctrine, we believe, has been adopted in Ohio. But in the courts of the other States it has been generally rejected, and the views expressed by the Supreme Court approved. In Dorchester and Milton Bank v. New England Bank, it was held by the Supreme Court of Massachusetts that when notes or bills, payable at a distant place, are received by a bank for collection, without specific instructions, it is bound to transmit them to a suitable agent at the place of payment, for that purpose; and that when a suitable sub-agent is thus employed, in good faith, the collecting bank is not liable for his neglect or default. In giving its judgment the court referred to the ruling in Allen v. Merchants' Bank, and observed that it was opposed to a number of decisions of great authority, and, in its opinion, was not well founded in principle; that if the bank in that case acted in good faith in selecting a suitable sub-agent where the bill was payable, there was no principle of justice or public policy by which a bank should be made liable for his neglect or misfeasance. 1 Cush. 177 to 187. In the Supreme Courts of Connecticut, Maryland, Illinois, Wisconsin and Mississippi, the doctrine of the Supreme Court of New York in the case reversed, and of the Supreme Court of Massachusetts in the case cited, has been approved and followed. In the New York case, in the court of errors, it was conceded that the general liability of the collecting bank might be varied and limited by express agreement of the parties, or by implication arising from general usage; and in some of the cases in other States, proof of such general usage of bankers in the employment of notaries was permitted, and a release thereby asserted from liability of.the bank for any neglect by them. Thus in Warren Bank v. Suffolk Bank, which arose in Massachusetts, a note, left with the latter bank for collection, had been placed at the ciose of banking hours with a notary public for presentment and protest, and by his negligence in presenting the paper to the maker, the liability of

an indorser was released. The bank was thereupon sued. On the trial, proof was offered to show that it was the invariable usage of banks in Boston, when notes were sent for collection by other banks, to keep them for payment until the close of banking hours on the day they became payable, and if not then paid to put them into the hands of a notary public for demand on the maker and protest; and that the defendant had pursued that course. The court below decided that if there were negligence on the part of the notary, the evidence was immaterial, and that the usage did not constitute a defense. The Supreme Court reversed this decision, and held that the evidence was admissible. "It would, we think," said the court, "have authorized the jury to find an implied agreement or assent to the employment of a sub-agent or notary public for the purpose of making a demand on the maker, requiring only in the collecting bank due diligence and care in selecting the notary, or a general usage binding certainly those who were conversant of it. It is no sufficient answer to this to say that it was not absolutely necessary to employ a notary in a case like the present, to certify to the demand and protest. If this was the well-established course of business, and known to the plaintiffs, when they sent to the defendants this note for collection, they must be bound by it. 10 Cush. 582-7. The court also said, that when the nature of the business in which an agent is engaged, requires for its proper and reasonable execution, the employment of a sub-agent, the principal agent is not responsible for the default of the sub-agent, provided a proper one be selected; and it was of opinion that if the usage of the banks authorized the employment of a sub-agent holding an official character, it then became a case of sub-agency, with its incidents.

In the case at bar there was no proof of any general usage of bankers at Natchez as to the employment of notaries public in the presentment and protest of notes left with them for collection. But we have before us the decisions of the Supreme Court of Mississippi, and they are of equal potency to limit the liability of the bankers for the negligence of the notary. We can look into those decisions to ascertain what the law is in that State, and how far it has modified what would otherwise be deemed the general law on any particular subject. By them we are informed that it is the settled law of the State, that a bank receiving commercial paper, as an agent for collection, properly discharges its duties, in case of non-payment, by placing the paper in the hands of a notary public to be proceeded with in such manner as to charge the parties to it, and secure the rights of the real owner; and that the bank is not liable in such cases for the failure of the notary to perform his duty." This is the language used by that court in Bowling v. Arthur, 34 Miss. 52; and in support of it the cases of Tiernan v. Commercial Bank of Natchez, 7 How. (Miss.) 648, and of Commercial Bank of Man

chester v. Agricultural Bank, 7 S. & M. 592 are cited. And the court adds, that these cases decide that the notary is the sub-agent of the holder, through the banks and as such is liable to him; and it is satisfied that the rule declared in them is correct.

By a statute of Mississippi notaries are authorized to protest promissory notes as well as bills of exchange, and they are required to keep a record of their notarial acts in such cases; and the record is admissible in evidence in the courts of the State just as though the notary were present and interrogated respecting the matters recorded. And it was decided in the case of Bowling v. Arthur, that, under the statute, it is a part of the duty of the notary, when protesting paper, to give all notices of dishonor required to charge the parties to it.

Judged by the law of Mississippi, the bankers, Britton & Koontz, discharged their duty to the plaintiff when they delivered the notes, received by them for collection, to the notary public. There is no question as to his habits or qualifications. He was not connected in business with the bankers, nor empioyed by them except in his official character. What more could they have done, as intelligent and honest collecting agents, desirous of performing all that was required of them by the law, ignorant, as they were, of the residence or place of business of the maker of the notes, and having unsuccessfully made diligent inquiry for them? Had they known that the maker resided on his plantation, without the city limits, in time to make the demand upon him, it might, perhaps, have been incumbent upon them to forward the notes there for presentment. It is not necessary to express any opinion on this head, for the only question is whether, on the knowledge they possessed, they discharged their whole duty. For the reasons stated we are of opinion that they did all that the law required of them.

The notary, it is urged, was aware of the residence of the maker, but we do not perceive how this could affect the liability of the bankers. We are not prepared to say that even with this knowledge he was bound, receiving the paper at the close of banking hours, to go out of the limits of the city to present it to the maker. He took the paper to inquire for the maker in the city, not outside of it, and to make presentment if he were found. If his knowledge of the residence of the maker could have required him to leave the city, so it would have done had the maker resided one hundred miles distant instead of twelve or fifteen. But on this head we are not called upon to express an opinion. It is enough here that the notary was not, in this matter, the agent of the bankers. He was a public officer, whose duties were prescribed by law, and when the notes were placed in his hands, in order that such steps should be taken by him as would bind the indorsers if the notes were not paid, he became the agent of the holder of the notes. For any failure

on his part to perform his whole duty he alone was liable; the bankers were no more liable than they would have been for the unskillfulness of a lawyer of reputed ability and learning, to whom they might have handed the notes for collection, in the conduct of a suit brought upon them.

The fact that in the action against the indorser' Reynolds, judgment passed in his favor, on the ground that due presentment and demand of payment had not been made of the maker, can have no weight in this case. The bankers were not parties to that action, had no control over its management, and are not bound by the judgment rendered. If the plaintiff was not satisfied with that judgment, he should have appealed from it. The rulings of the court in that case are not authority in this.

It follows from these views that the instructions refused should have been given, and that the instructions given should have been refused. The judgment must, therefore, be reversed, and the cause remanded for a new trial; and it is so ordered.

Moulton, Johnson & Levy, attorneys for plaintiff; Gary, Cody & Gary and Follett, Hyman & Dawson, for defendants.

MATTHEWS, Circuit Justice, delivered the opinion of the court:

In each of these cases the plaintiff is a citizen of Indiana, and the defendants are corporations in States other than Ohio, but each of which is licensed under the laws of Ohio to transact insurance business within this State, having agents appointed for that purpose, and actually transacting business in this State. The causes of action are upon policies of flre insurance issued by these companies, the subject of the insurance being property in the State of Indiana. The defendants have been sued here, and process has been served upon their agents.

Motions were made heretofore to set aside that service on the ground that this court did not have jurisdiction of the several causes of action or over the persons of these defendants.

The court, of course, has jurisdiction of the subject matter in case the parties are right. The

controversies are between citizens of different States, so that, in that respect, the court has jurisdiction, and the question then, is reduced to one of jurisdiction over the persons. It is conceded that these actions might be maintained in the State Courts of Ohio, notwithstanding the policies may not have been issued by the agencies in this State,and although the subject of the insurance is not in this State.

Mr. Hyman:-That is not conceded, your honor. MATTHEWS, Circuit Justice:-I assume it, then, because I think it is clear that these actions might be brought in the State Courts, notwithstanding the fact that the policies of insurance may have been issued by the companies through agencies not in this State, and although the subject of the insurance is not in this State.

The action of assumpsit or covenant (as might have been brought in these cases), upon a policy of insurance is not local but transitory, and may be brought wherever the defendant is found, and under the general provision of the code of procedure in this State, I assume is to be indisputable that an action might be maintained. It might be maintained in either of two forms, that is, in either of two modes of procedure. If there had been found property of the company, the process might have been by a foreign attachment, and, if so, personal service need not have been had or required, and the judgment would have only gone to the extent of the property found, which might be subjected to the payment of it. Or if the corporation had a managing agent (as described in the code of procedure of this State), upon whom service could be made, it might have been brought in personally, and made to answer to a personal judgment, and that judgment would have been conclusive between these parties in any other forum.

Now, of course, an action can not be commenced in this court against a defendant by attachment. It must be by a personal service, because the Act of Congress provides that the action shall be brought in the district where the defendant is an inhabitant, or in which he may be found, and the question is whether under the circumstances of this case these defendants have been found in this district.

The statutes of Ohio have provided, as I have already indicated, the mode by which foreign corporations transacting business in this State, and represented by agents in this State, may be summoned to answer any cause of action transitory in its nature.

The in-urance law itself requires that they should expressly assent to its terms and consent to be sued through certain agencies before they are allowed to transact business in this State. The defense is that that consent only goes to the extent of the terms of that statute, and is reasonably construed to cover only the transactions arising under it.

But even if that were so, I should still think, that, under the general provisions of the statutes

making provision for service of process upon managing agents of foreign corporations, their coming into the State by means of such agents for the purpose of transacting business was necessarily an assent to being sued in that way, and constituted them personally within the district, in such a sense as that they may be said to be found by process when issued against them and served on these agents. I think this is a necessary result of the application of the doctrine contained in the case of Railroad Co. v. Harris, decided by the Supreme Court in 12 Wall. 65, and I do not see that it is possible to distinguish these cases from the case of Ex parte Schollenberger, 96 U. S. 369.

Although in that case the cause of action was one which arose under the operation of a law which authorized the companies to transact business in the State of Pennsylvania. The only distinction then between the two cases is, that here the causes of action were not created by the action of the agents of the corporations in this State. But by virtue of the general provisions of the statute relating to service on foreign corporations, even on the supposition that I am not authorized to construe the insurance law itself as requiring them to assent to be sued with reference to all causes of action (and I do not think it can be limited), I have thought this service was rightly had. The motions are granted, setting aside the former orders setting aside the service in these cases, and the cases are reinstated.

NOTE BY COUNSEL.-The act of March 3, 1875, U.S. Rev. Stat., Sup. Vol. 1, p. 173, chap. 137, sec. 1, adopts the phraseology of the Constitution and enlarges the jurisdiction of the circuit court to the full extent of the powers of Congress over the subjects, and repeals the previous limitation requiring one of the parties to be a citizen of the State where the suit is brought. Eureka Mining Co. v. Richmond Mining Co., 2 Fed. Rep. 829; Dillon on Removals, 3d ed., pp. 26-27; Peterson v. Chapman, 13 Blatch. 395; Brooks v. Bailey, 9 Fed. Rep. 438; Cooke v. Ford. 16 Am. L. Reg. 417; Taylor v. Rockefeller, 18 Am. L. Reg. 306, and note, page 310; Sheldon v. Keokuk Packet Co., 1 Fed. Rep. 792; Osgood v. Chicago, etc. R. Co., 7 Ch. L. N. 241; Mays v. Taylor, 8 Ch. L. N. 11; Clippinger v. Missouri Valley L. Ins. Co., 8 Ch. L. N. 156; Seckel v. Backhaus, 9 Ch. L. N. 161. Sec. 739, U. S. Rev. Stat., provides that defendant can be sued only in the district where he resides or may be found. But corporations may be found for service of process wherever they are doing business. Wilson Packing Co. v. Hunter, 8 Cent. L. J. 333; Railroad Co. v. Harris, 12 Wall. 65; Ex parte Schollenberger, 96 U. S. 369; Moulin v. Ins. Co., 1 Dutch. (N. J.) 57; Moch v. Ins. Co., 10 Fed. Rep. 690; Wheeling, etc. Transportation Co. v. Baltimore, etc. R. Co., 1 Cin. Sup. Ct. Rep. 311; Hannibal, etc. R. Co. v. Crane, 102 Ills. 249; Handy v. Ætna Ins. Co., 37 Ohio St.-; 2 Ohio. L. J. 289; McNichol v. United States Mercantile As

sociation, 14 Cent. L. J. 51; Williams v. Empire Transp. Co., 14 Off. Gaz. 523.

CONTRACT FOR THE CONVEYANCE OF LANDS-STATUTE OF FRAUDS-DELIVERY OF DEED.

PULSE v. MILLER.

Supreme Court of Indiana.

1. A defendant may avail himself of the benefit of the statute of frauds, if it appears upon the face of the complaint that the case is within the statute.

2. A contract for the conveyance of lands must describe the property upon which it is intended to operate, and recourse can not be had to parol evidence to supply a description of the land intended.

3. It is not necessary that the description should be contained in one of the series of instruments, but if, taking all the instruments in the series together, the description appears, it will be sufficient.

4. An instrument concerning the conveyance of lands must show, either on its face or by reference to some other instrument, every material part of a valid contract on the subject.

5. A deed is of no validity until delivered; and an undelivered deed is not a sufficient writing to take the case out of the statute of frauds.

Appeal from the Shelby Circuit Court.

Ferris & Wray, for appellant; Adams & Michener, for appellee.

ELLIOTT, C. J., delivered the opinion of the court:

The complaint of the appellant is based upon the following contract: "Articles of agreement made and entered into by and between Hiram Pulse, George Pulse, Reuben Pulse, Peter Pulse and Florence Miller, of the first part, and William Miller and Jasper Heck of the second part. The parties of the first part, having this day conveyed certain lands situate in Liberty township, in Shelby county, Indiana, in part agree to have the same completed within twenty days, or pay the parties of the second part the sum of $500; and the parties of the second part agree to comply with the contract on completion of the deeds, or pay to the parties of the first part the sum of $500.”This agreement is properly signed. It has long been the rule in this State, that a defendant may avail himself of the benefit of the Statute of Frauds, if it appear upon the face of the complaint that the case is within the statute. We are,. therefore, required by the demurrer to the complaint to determine whether the statute constitutes a bar to the recovery sought by the appellants. A contract for the conveyance of lands must describe the property upon which it is intended to operate. If there is no description of the land, the statute prohibits the enforcement of the agreement. Newman v. Perrill, 73 Ind. 153; Dingman v. Kelly, 7 Id. 717; Baldwin v..

Kerlin, 46 Id. 426; Miller v. Campbell, 52 Id. 125. Recourse can not be had to parol evidence to supply a description of the land intended. "Land, for instance, which is purported to be bargained for, must be so described that It may be identified." Browne Stat. Frauds, sec. 385; Ridgway v. Ingram, 50 Ind. 145. Another author says: "Nor can parol evidence be received to supply anything which is wanting in the writing to m ke it the written agreement on which the parties rely." 3 Parsons on Cont., 13; Norris v. Blair, 39 Ind. 90. A contract can not be partly verbal and partly written. If part rests in parol, the entire contract is treated as a verbal one. Board of Commissioners v. Shipley, this term. If, therefore, part of the essentials of contract are evidenced by an oral agreement, the contract is within the statute and can not be enforced. It is not necessary that the description should be contained in one of a series of instruments, if taking all the instruments in the series together, the description appears, it will be sufficient. In order that this should be so, the instrument containing the description must be clearly referred to and identified by the contract signed by the party sought to be charged. Wills v. Ross, this term; Ridgway v. Ingram, 50 Ind. 145. There is no identification of the deeds referred to in the contract under examination. The connection between the deeds and the contracts can only be established by parol evidence, and where this is so, the contract is within the statute. In Wills v. Ross, the letter of the party sought to be charged clearly referred to and identified the letter, exhibiting the subject of the matter of the contract. It is a settled principle that the written instrument must contain all the essential terms of the contract. The reference in the instrument before us to the contract which is to be complied with, is too vague and uncertain to enable us to discover what the terms of the contract were. We can not from the instrument itself, nor from any other, ascertain what contract it is with which the parties are to comply. We can not discover what price was to be paid, or by whom. The terms of the contract are not stated, and the case is, therefore, clearly within the statute. Browne on the Stat. of Frauds, sec. 385; Reneck v. Sanford, 118 Mass. 102; Williams v. Morris, 95 U. S. 444.

In Barrickman v. Kendall, (6 Blkf. 21), it was said: "Under this statute, which was copied from that of Charles II., the instrument of writing, whatever may be its form, must either show on its face, or by reference to some other instrument, every material part of a valid contract on the subject, such as the names of the parties, a description of the land, the amount of the purchase money," etc. The instrument in suit is given to secure the performance of some agreement concerning lands, and the fair inference from the language used is, that the contract to which it refers is a verbal one.

It has been held in analagous cases that where

the contract does not appear to be in writing, the presumption is that it was verbal. Carlisle v. Brennan, 67 Ind. 13; Krohn v. Bantz, 68 Ind. 277; Neal v. Neal, 69 Ind. 419. We can not presume that the contract referrrd to in the one constituting the foundation of the action, is in writing without violating the principle upon which rests the cases we have cited. It appears therefore that the material part of the contract in suit is a verbal one, and this being so, it is fully within the statute of frauds. An undelivered deed is not a sufficient writing to take a case out of the statute. A deed is of no validity whatever until delivered. Freeland v. Chambers, this term. A deed can not be deemed a contract until it has been given force, and it is absolutely devoid of force until delivered. A paper of any kind, although it contains all the terms of a contract, is not operative as a contract until it has been delivered with the intention of giving it effect. We do not find it necessary to consider whether the sum named in the instrument sued on is to be regarded as a penalty or as liquidated damages, for we are clear that the Statute of Frauds precludes any recovery upon it. Judgment affirmed.

Supreme Court of Wisconsin, May 10. 1882.

1. It is a general rule that trustees are liable only for good faith and common prudence, and that if a loss happens to a trust fund, in relation to which they have exhibited this care and prudence, they may be allowed for the loss in their accounts.

2. But where the administrator deposits in a bank money belonging to the estate represented by him, taking therefor a certificate of deposit payable to the order of himself in curreney on the return of the certificate properly indorsed, and the bank subsequently fails, and the certificate becomes worthless, such administrator must suffer the loss, notwithstanding the bank was in good repute at time of making the deposit, and the teller receiving the money and giving the certificate was informed that the money deposited was a trust fund.

3. If the administrator desired to escape liability, he should take the certificate in his name, as administrator of the estate, or at least have the credit so entered upon the books of the bank.

In the matter of the estate of Stephan Williams, deceased.

Appeal from Circuit Court, Rock County. Bennett & Sale, for appellant; S. U. Pinney and H. S. Wilson, for respoudent.

July 10, 1875, Harry C. Williams had in his possession, as administrator of said estate, $665.70, and deposited the same for safe keep.