But special de Bank v. Burke, 81 Ga. 597; Spilman v. Payne, 84 Va. 435. posits do not become the property of the bank; they must be kept safely until drawn out upon the order of the depositor: Cutler v. American Nat Bank, 113 N. Y. 593; such as bonds deposited for safe-keeping: Bowers v. Evans, 71 Wis. 133; Francis v. Evans, 69 Wis. 115; or collaterals deposited with a bank for the payment of a certain debt specified: Loyd v. Lynchburg Nat. Bank, 86 Va. 690. BANKS AND BANKING-DEPOSITS, CHARACTER OF, CONTROLS THE RIGHTS OF HOLDERS OF CHECKS DRAWN AGAINST THEM. — A deposit is not general, but a trust fund, when there is an express agreement to that effect, or cir cumstances which give to the transaction the nature of a special deposit: Boettcher v. Colorado Nat. Bank, 15 Col. 16. BANKS AND BANKING - CHECKS - REMEDY OF HOLDER. Without privity of contract, acceptance, or circumstances showing an intent of the bank to accept a check drawn by a general depositor, the payee cannot recover against the drawee: Boettcher v. Colorado Nat. Bank, 15 Col. 16. A check is revoca. ble before its presentation for payment, unless the bank upon which it is drawn has accepted or certified it; Kahn v. Walton, 46 Ohio St. 196; Louisville etc. Co. v. Paine, 67 Miss. 678. CARDEN V. CARDEN. [107 NORTH CAROLINA, 214.] ATTACHMENT AGAINST NON-RESIDENT. Where one voluntarily removes from one state to another for the purpose of discharging the duties of an office of indefinite duration, which requires his continued presence there for an unlimited time, he becomes a non-resident of the former state for the purposes of attachment, although he may occasionally visit that state, and entertain an intent to return and reside there at some uncertain time. ATTACHMENT AGAINST NON-RESIDENT. — A non-resident's property is attachable when his residence is not such as to subject him personally to the jurisdiction of the court, and thus place him upon equality with the other residents of the state. ATTACHMENT. The defendant, a Methodist minister, prior to 1884 owned and resided upon land in North Carolina. In March, 1884, he was transferred to Maryland for pastoral work therein, and there remained until 1889. He always regarded the former state as his home, intended to return and reside there, and did visit there at least once each year, from 1884 to 1889, when he returned to continuously reside therein. Some time during defendant's absence in Maryland, plaintiff caused his land in North Carolina to be attached, and at the trial recovered a verdict. Defendant, after such verdict, and before judgment, moved the court to vacate the attachment, claiming to be a resident of the latter state, and entitled to a homestead in the land. Upon the trial of the issue, the court granted the motion on the ground stated. Plaintiff appealed. R. W. Winston, for the appellant. J. S. Manning, for the respondent. SHEPHERD, J. The single question presented by this appeal is, whether, upon the facts found, the attachment should have been dissolved. We are unable to distinguish this case from that of Wheeler v. Cobb, 75 N. C. 21. It is there said that, "without deciding who, in law, is a non-resident in other respects, but confining the decision to the construction of this statute, the conclusion is, that where one voluntarily removes from this to another state for the purpose of discharging the duties of an office of indefinite duration, which required his continued presence there for an unlimited time, such a one is a non-resident of this state for the purposes of an attachment, and that notwithstanding he may occasionally visit this state, and may have the intent to return at some uncertain, future time." The prominent idea is, "that the debtor must be a nonresident of this state, where the attachment is sued out, not that he must be a resident elsewhere. . . . . The essential charge is, that he is not residing or living in the state; that is, he has no abode or home within it where process may be served so as effectually to reach him. In other words, his property is attachable, if his residence is not such as to subject him personally to the jurisdiction of the court, and place him upon equality with other residents in this respect": Waples on Attachment, 35. We cannot understand how these latter conditions could have existed when the defendant was living in Maryland, visiting this state only once or twice a year, and with only a general intention of returning at some indefinite time and making his home here. Non-residence, within the meaning of the attachment law, means the "actual cessation to dwell within a state for an uncertain period, without definite intention as to a time for returning, although a general intention to return may exist": Weitkamp v. Loehr, 53 N. Y. Sup. Ct. 83. Reversed. ATTACHMENT, Grounds for NON-RESIDENCE OF DEFENDANT. - A debtor may remain out of the state such a length of time and under such circumstances as to be a non-resident, such as is meant by the term "non-resi dent" in statutes relating to attachments, even though, by reason of his intention to return, his domicile is still in the state; yet a mere temporary absence of a debtor, on business or for pleasure, will not constitute him a non-resident, although he may not have a house of usual abode in the state where a writ of summons may be served upon him during such absence: Keller v. Carr, 40 Minn. 428. Compare Haggart v. Morgan, 5 N. Y. 422; 55 Am. Dec. 350, and note 355, 356; Dorsey v. Kyle, 30 Md. 512; 96 Am. Dec. 61, and note. FOLLETTE V. UNITED STATES MUTUAL ACCIDENT ASSOCIATION. [107 NORTH CAROLINA, 240.] INSURANCE - SUPPRESSION OF MATERIAL FACTS - WAIVER BY COMPANY — EVIDENCE. In an action to recover on an accident insurance policy, which is resisted on the ground that the insured suppressed the fact of his deafness by stating that he was free from any bodily infirmity at the time he was insured, the actual knowledge of such deafness by the insurer's agent at the time is constructive notice of it to his principal, and constitutes a waiver of objection that the deafness was a bodily infirm ity, although the policy provided that such agent should have no power to waive its conditions. Hence evidence that such agent knew or ought to have known of such deafness when he solicited and secured the policy is admissible. INSURANCE-WAIVER OF REPRESENTATIONS AS TO BODILY INFIRMITYEVIDENCE. — An application for insurance constitutes part of the contract between the insurer and the insured, and the representations con. tained in it are, presumptively, inducements to the former to enter into it. But when it appears that an agent, through whom the company acts, himself examined or frequently conversed with the applicant, who was partially deaf, had opportunity to test the extent of his infirmity, and afterwards solicited, or forwarded with favorable recommendation, his application for insurance against accident, the insured is not precluded from showing the fact as evidence that the insurer knew of and assented to the defective hearing, and waived objection to the risk on account of it.. ACTION upon an accident policy. At the trial, plaintiff proved the injury, and testified that he had been partially deaf for thirty years; that he was otherwise in good health, and that his deafness did not interfere with his business, although a person conversing with him had to elevate his voice above an ordinary tone to enable him to hear; that he was well acquainted with the agent of the insurer who took his application and solicited his insurance, and had often conversed with him; that such agent had had opportunity to know the extent of his deafness when applying for the policy; that no question was asked about deafness at that time, and that he did not consider his deafness a bodily infirmity, nor intend to suppress the fact thereof when he said in his application, "I have never had nor am I subject to fits, disorders of the brain, rheumatism, or any bodily or mental infirmity, except as herein stated; had an attack of rheumatism six years ago." The insurer's local agent, heretofore mentioned, testified that he took plaintiff's application for insurance, and delivered the policy to him. He was then asked if at that time he knew the extent of plaintiff's deafness, if he had frequently conversed with him prior to that time, and if any questions were asked plaintiff by him at that time about his deafness, or his attention called to it in any way. The question was excluded, and plaintiff excepted. The policy in question contained a condition that fraud or concealment in procuring it would render it void, and that agents. should not waive any of the conditions of the policy without the written consent of the insurer in writing. The court instructed the jury to return a verdict for defendant on the ground that plaintiff's deafness constituted a bodily infirmity which he had suppressed in his application, though without intent to defraud, and though such deafness did not contribute to the injury. After verdict in accordance with such instruction, and judgment thereon, plaintiff appealed. W. W. Fuller and R. B. Boone, for the appellant. J. S. Manning and J. W. Hinsdale, for the respondent. AVERY, J. It was competent to prove by the agent of the defendant, on his examination as a witness, that he knew, or had had abundant opportunity and good reason to know, the extent of plaintiff's deafness when he solicited him to take out a policy, or subsequently, and before the application was signed. Actual knowledge of the plaintiff's defective hearing on the part of the agent was constructive notice of it to his principal, and hence the latter is deemed to have waived the objection that the deafness of the former was a bodily infirmity, notwithstanding the fact that it was provided in the policy that the agents of the company should have no power to waive its conditions: Hornthal v. Western Ins. Co., 88 N. C. 73; Dupree v. Virginia Home Ins. Co., 93 N. C. 240; 92 N. C. 422; Collins v. Farmville Ins. etc. Co., 79 N. C. 284; 28 Am. Rep. 322; Union Mut. L. Ins. Co. v. Wilkinson, 13 Wall. 222; Home Mut. F. Ins. Co. v. Garfield, 60 Ill. 124; 14 Am. Rep. 27; Witherell v. Maine Ins. Co., 49 Me. 200; American Central Ins. Co. v. McCrea, 8 Lea, 513; 41 Am. Rep. 647; Wood on Insurance, sec. 496; Morrison v. Wisconsin etc. Ins. Co., 59 Wis. 162; Shafer v. Phoenix Ins. Co., 53 Wis. 361; Westchester F. Ins. Co. v. Earle, 33 Mich. 143. An application for insurance constitutes a part of the contract between the insurer and the insured, and the represen tations contained in it are, presumptively, inducements to the former to enter into it. But when it appears that an agent, through whom a corporation acts, himself examined and valued, or had opportunity to estimate by examination actually made by him, the value of property insured against fire, or frequently conversed with a man partially deaf, had opportunity to test the extent of his infirmity, and afterwards solicited, or forwarded with favorable recommendation, his application for insurance against accident, the insured will not be absolutely precluded from showing the facts as evidence that the corporation assented to what subsequently appeared to be an overvaluation in the one case, or had knowledge of the defective hearing, and waived objection to the risk on account of it, in the other. It was material that the jury, in passing upon and finding the facts upon which the liability of the defendant depended, should hear any testimony that would aid them in determining whether the defendant company was induced, or might reasonably have been induced, by the false representation contained in the application, to enter into the contract, when it would not have done so had its agents had full knowledge of the facts. The representation in the application must be, in contemplation of law, falsely and fraudulently made, in order to prevent a recovery in case of loss; but, in the absence of any proof of knowledge of the misrepresentation complained of, or waiver of objection on account of it by the agents of the insurer, a false statement constituting an apparent inducement to the contract will be deemed to have been made with fraudulent intent: Mace v. Providence Life Ass'n, 101 N. C. 133. The courts of this country have differed widely as to the admissibility of testimony in cases like that before us. Some have held that parol testimony was not competent in a case to show a waiver of the requirements in the conditions of a policy, or of the warranty arising out of the application, while others have limited the power of agents to waive its |