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Van Namee and others, agt. The President, &c. of the Bank of Troy.

the express and only purpose of delivering them up to Burn that he might deposite them in the tin box, which would give them no lien, and if they had no lien when they obtained them, no lien would afterwards be obtained by the overdrawing of Burn.

The case of the Bank of Metropolis vs. New England Bank, came before the Supreme Court of the United States twice. Once in 1843 (1 How. 234), and again in 1848 (6 How. 212). The Bank of the Metropolis in the District of Columbia, had been for a long time dealing and corresponding with the Commonwealth Bank of Massachusetts, which failed on the 13th day of January 1838.

They had mutually remitted for collection such bills, &c. as either might have which were payable in the vicinity of the other, which, when paid, were credited to the party sending them in the account current kept by both banks, and regularly transmitted from one to the other, and they regularly settled upon these principles, charging postage, protests, &c. &c. the balance being sometimes in favor of one and sometimes of the other. On the 24th of November 1837, the Bank of the Metropolis owed the Commonwealth Bank $2200, and in the latter part of that year the Commonwealth Bank sent to the Bank of the Metropolis for collection in the usual way sundry paper which would fall due in February, March, April, May and June following. They were endorsed by E. P. Clarke, cashier, who was the cashier of the New England Bank, payable to C. Hood, cashier, who was cashier of the Commonwealth Bank, and by him to G. Thomas, cashier, who was cashier of the Bank of the Metropolis. On the day the Commonwealth Bank failed, its cashier wrote a letter to the Bank of the Metropolis directing it to hold the paper that had been so forwarded “subject to the order of the cashier of the New England Bank, it being the property of that institution.”

The N. E. Bank sued the Bank of the Metropolis for the proceeds of all the paper sent, and the court below gave judgment for the N. E. Bank. The cashier of the Commonwealth Bank testified that they were never the property of the Commonwealth Bank, nor had that bank any interest therein, but they were, at

Van Namee and others, agt. The President, &c. of the Bank of Troy.

the time of the receipt thereof and ever after, the property of the New England Bank and subject to its order and control. At this time the Commonwealth Bank was indebted to the Bank of the Metropolis about $2,900. The notes, &c. were endorsed by the cashier of the N. E. Bank without consideration, and were placed in the hands of the Commonwealth Bank for the

mere purpose

of collection. On the cause coming back to the Supreme Court the second time, the court said the jury should have been instructed, that if upon the whole evidence; they should find that the Bank of the Metropolis at the time of the mutual dealings between them and the Commonwealth Bank, had notice that the latter had no interest in this paper, and transmitted it to the bank of the Metropolis for collection merely, as agent, then the Bank of the Metropolis could not retain it as against the New England Bank for a general balance due to the Bank of the Metropolis from the Commonwealth Bank. And if the Bank of the Metropolis had not such notice and regarded and treated the Commonwealth Bank as owner, still it could not retain the paper against the real owner unless credit had been given to the Commonwealth Bank or balances suffered to remain in the hands of the latter to be met by the negotiable paper transmitted or expected to be transmitted in the usual course of dealings between the two banks. But if the jury found that in their dealings the Bank of the Metropolis had regarded and treated the Commonwealth Bank as the owner of the paper so transmitted for collection, and had no notice to the contrary, and upon the credit of such remittances made or anticipated in the usual course of dealings between them, balances from time to time were suffered to remain in the hands of the Commonwealth Bank to be met by the proceeds of such negotiable paper, then the Bank of the Metropolis could retain said

paper as against the New England Bank for the balance of account due from the Commonwealth Bank.

These cases declare the law within the jurisdiction of these courts of last resort, respectively. The principles they maintain applied to the principal case are fatal to the defendants. They received the note for collection merely. For, notwithstanding

Van Namee and others, agt. The President, gc, of the Bank of Troy.

This was

the words "for account” in the letter and which perhaps referred to the two items carried out, such was the testimony. It is to be supposed from their own practice and experience and from their knowledge of business generally, that they knew that a large amount of the paper they received from the Canal Bank was placed there for the sole purpose of collection. notice enough to put them upon inquiry; and at least sufficient to prevent them from relying upon these notes as securities for advances or for a balance, and brings the case within the principles laid down in Bank of the Metropolis vs. New England Bank (supra). Under such circumstances they were bound to know that, at most, they had no lien except upon paper owned by the Canal Bank. By the usual course of their dealings between the two banks, no credit was given for a note sent, until the defendants had collected it. The bank sending it could recall it any time; and when a note was dishonored it was immediately returned and the expenses charged. The defendants in this case, after the Canal Bank failed, took back what was uncollected by the Canal Bank, by them before sent to that bank.

But what seems wholly inconsistent with any implied contract for a lien, on every Monday all balances were paid up. This note was in the hands of the defendants between three and four weeks before the Canal Bank failed, and consequently the two banks squared all accounts two or three times during that time; and had not the Canal Bank failed, they would have settled and paid all up on both sides probably many times before this note became due. This wholly repels the idea of any contract for a lien, expressed or implied. The plaintiffs failed in Clark vs. The Merchants’ Bank, because it was clear that the draft was not sent for collection but to be credited; and the defendants failed in Brandão vs. Barnett, because they received the bills (or the new ones in exchange) to return again, which was inconsistent with a lien, even as against Burn. In the case of the Bank of Metropolis vs. New England Bank, the court held the former must maintain a position similar to that of a bona fide purchaser, that is, for value and without notice. And Brandão vs. Barnett comes

Pike agt. Van Wormer.

to nearly the same point. Here, as we have seen, the note was sent for collection merely, and by the course and practice of the business, it was to be returned when called for at any time before it was collected, and also if not collected.

Thus, in some important particulars, coming within the principles laid down in the cases to which I have already adverted. It may be added, that as against the plaintiffs in this cause, the defendants could not retain the note for a preexisting debt due froin the Canal Bank (Stalker vs. McDonald, 6 Hill, 93).

So that suffering former balances to remain in the hands of the Canal Bank on the strength of such paper would not give to the defendants title as against the real owner, though perhaps it would be different in cases coming before the Supreme Court of the United States (Swift vs. Tyson, 16 Pet. 1).

And it would seem that the defendants may be treated by the plaintiffs as their agents (Bank of Orleans vs. Smith, 3 Hill, 560), unless the defendants are in a position to insist upon their legal title, on the ground that they are bona fide holders, in the sense of that term in this state, which we have seen is not the case. There must be judgment for the plaintiffs.

mere

5 How. 171-See 6 How. 99.

SUPREME COURT.

PIKE agt. VAN WORMER.

Several causes of action in slander can not be united in the same complaint,

unless they are separately stated. It seems that the separate statement of a cause of action, is equivalent to a

separate count, under the former rules of pleading. The words, “you have passed counterfeit money,” fc., without any colloquium

or averment, alleging a guilty knowledge and intention to defraud, will not

sustain an action. The words "you are a bogus peddler," without any averment showing the mean

ing of the term, are not actionable, Words imputing that the plaintiff had had the pox, but without asserting the

present continuance of the disease, and without alleging special damages, are not actionable.

Pike agt. Van Wormer.

Schenectady Special Term, Nov. 1850. This was a demurrer to a complaint in an action of slander. The pleadings are sufficiently stated in the opinion of the court.

J. C. Weight, for Plaintiff.
- McCHESNEY, for Defendant.

WILLARD, Justice.—The complaint in this case charges that the defendant, on the first day of May 1848, and on divers other days and times before that time and the commencement of this suit, at the town of Princetown in Schenectady county, and at the town of Guilderland in Albany county, maliciously spoke, uttered and published to, and of and concerning the said plaintiff the following false, slanderous and defamatory words. It then details three or four sets of words addressed to, the plaintiff and the like number spoken of him. The words relate to different subjects matter, and will be presently noticed. Each set of words appears to be a distinct cause of action, but they are all united in the same complaint, without being divided into separate counts or statements.

The defendant has demurred to so much of the complaint as imputes the speaking of the words referred to in the demurrer.

Before considering the questions which the parties have discussed under the demurrer, it will not be out of place to advert to other questions which were directly involved and which might have been raised.

I. The complaint is bad because it unites several causes of action, without stating them separately. The 167th section of the Code lays down the rule with respect to joinder in the same complaint of several causes of action. The causes of action, so united must all belong to the same class, of which the Code specifies seven; they must affect all the parties to the action; they must not require different places of trial; and they must be separately stated. I had occasion to consider this subject in Durkee vs. The S. and W. Rail Road (4 How. Pr. R. 226), and will not repeat what was then said. The separate statement of a cause of action, and the separate counts of a declaration, are equivalent expres

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