every person holding any civil office, with certain stated exceptions not material here, shall, unless removed according to law, exercise the duties of such office until his successor is duly qualified, applies to the office of district judge, and the incumbent of that office by election is also expressly authorized to remain in office until his successor is duly qualified by the provision of section 19 of article V of the constitution prescribing the term for which each district judge shall be elected.

The relator, therefore, could not divest himself of his office of district judge by his own act, but it required the concurrence of the authority vested with the power to accept a resignation. If his act in accepting and assuming the duties of the federal military office would have permitted the office of judge to be treated as vacant and a successor to be appointed or elected, a question which need not be decided, no such action was taken, and the relator is rightfully exercising and discharging the duties of the office. And, in our opinion, he is not merely judge de facto, but is the de jure judge of the seventh district, and was such judge during the period for which the salary is claimed in this proceeding.

It is unnecessary, therefore, to consider the other points urged by counsel for relator suggesting that if the provision prohibiting the holding of a state and a federal office at the same time should be strictly construed the effect might be to discourage voluntary service in the army in time of war, and that it should be construed and applied so that it may not in any way interfere with the full exercise of the powers granted to Congress by the Constitution of the United States to declare war, raise armies, and make all laws necessarry and proper to carry such powes into execution.

It follows that the relator is entitled to the salary claimed, and that the writ prayed for must issue directing the auditor to issue the proper warrant upon the treasurer for the payment of such salary. It will be so ordered.

MENTZER, District Judge, concurs.

BEARD, C. J., and BLYDENBURGH, J., being ill, did not sit. HON. WILLIAM C. MENTZER, Judge of the First District,

was called in to sit in place of BLYDENBURGH, J., and counsel consented to the submission of the case, without calling another district judge.

[APRIL TERM, 1919.]

CHAPMAN v. FIRST NATIONAL BANK.

(No. 920; Decided June 2nd, 1919; 181 Pac. 360.) CONTINUANCE ABSENCE OF WITNESS FAILURE TO SUBPOENA · PROMISE OF WITNESS TO APPEAR-CONVERSION-OWNERSHIP OF NOTE-EVIDENCE-CONCLUSION OF FACT-BANKS AND BANKINGAUTHORITY OF CASHIER-NOTICE TO THIRD PERSON-ATTITUDE OF THIRD PERSON TO INQUIRY-COMMERCIAL PAPER-COLLECTIONS.

1. It was not error to refuse a continuance, under Comp. Stat., 1910, Sec. 5139, applied for on the ground of the absence of a witness residing in another state, where defendant had relied on his promise to attend and made no effort to secure his testimony by deposition or his attendance by legal process.

2. In an action by a partnership, the payee of a note, for its conversion, the mere fact that it had been indorsed to one of the partners was not sufficient to overcome testimony of such partner and the cashier of the partnership that the note belonged to the partnership at the time of the conversion, in view of Comp. Stat., 1910, Secs. 3349, 3188; there being no showing of delivery.

3. Testimony of a partner and a cashier of the partnership that a note indorsed to the testifying partner by the partnership belonged to the partnership was not a mere legal conclusion at variance with the note itself and the indorsement thereon, being a fact within the personal knowledge of the witnesses.

4. In an action by the owner of a note and mortgage against a national bank for conversion of a note and mortgage by its cashier, the owner having been induced to send the note and mortgage to the cashier by his letter indicating that they would be paid from the proceeds of a loan he was negotiating for the mortgagor, a statement in the letter

by the cashier that "we are negotiating a real estate loan" for the mortgagor, did not necessarily imply that the bank was intending or expecting to make the loan direct, or with money under its control, so as to give notice to the owner that an illegal loan, that is, one prohibited by the National Banking Act, was contemplated, and thus charge him with knowledge of want of authority of the cashier to act for the bank in requesting him to send the papers to the bank.

5. The owner of a note and mortgage is not bound to inquire concerning the security to be taken by a national bank desiring to advance money to take up the note and mortgage and hence is not required to inquire concerning authority of the cashier to request sending of note and mortgage to the bank.

6. The acceptance of commercial paper for collection by a banking corporation is a well settled incident of the bank

ing business, and a bank is liable in case it fails to perform its duty in making collection.

7. A cashier of a national bank has authority to accept for the bank notes and mortgages for collection.

8. The cashier of a bank is generally its chief executive officer and its general agent in the transaction of its legitimate business, and a bank is bound by his acts in the absence of notice to persons dealing with the bank of any restriction upon the authority of its cashier.

ON REHEARING

9. In a suit by partnership for the conversion of a note alleged to belong to the partnership, the existence of an indorsement by the partnership to an individual partner, without evidence of delivery to the indorsee, held not sufficient to disprove possession and ownership by the partnership as against direct evidence; Comp. Stat., 1910, Sec. 3174, not applying.

APPEAL from District Court, Park County; HoN. E. C. RAYMOND, Judge.

Action by John W. Chapman, as surviving partner of the co-partnership of Meyer & Chapman, against First National Bank of Cody, et al. From a judgment for plaintiff, defendants appeal.

Collins, Campbell & Wood and J. H. Van Horn, for appellants.

Plaintiff and respondent failed to prove that Meyer & Chapman were the owners of the note, which is an essential element of their case. (DeClark v. Bell, 10 Wyo. 1-7, 38 Cyc. 2044.) The note had been endorsed, to John W. Chapman. He, Chapman, was the owner of the note within the provisions of the negotiable instrument law. (Sections 3188, 3192, and 3207, Comp. Stats.) The title and ownership was not in Meyer and Chapman at the time of the alleged conversion; defendant's motion for non-suit should have been granted; the most that could be claimed for the endorsement by Chapman was that it passed an equitable title, whereas a legal title was necessary to maintain the action. (Capitol Hill Bank v. National Bank of Rawlins, 160 Pac. 11711180.) There was no evidence that the note was in possession of Meyer & Chapman, when sent to Deegan at Cody. The testimony of Chapman that the note belonged to the copartnership was incompetent and a mere legal conclusion and a direct violation of the terms of the instrument upon which the action was brought. (Ward v. Shirley, 32 So. 489; Pichler v. Reese (N. Y.), 64 N. E. 441.) It was not shown that Deegan had authority to represent that defendant bank was negotiating a mortgage or to solicit the release of mortgage from Meyer & Chapman. National banks are prohibited by law from making loans on real estate. (U. S. R. S. 5136. Union National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; National Bank of Genesee v. Whitney, 103 U. S. 99, 26 L. Ed. 443.) One dealing with a corporation may rely upon an agent's authority to act upon matters within the apparent scope of his authority only, where the act is within the power of the corporation. It will never be presumed that an agent is authorized to do an illegal act. (Thompson on Corporations, 2nd Ed., Par. 1695 and 1532; Grow v. Cockrill, 63 Ark. 418, 36 L. R. A. 89; State Bank of Moore v. Forsyth, 41 Mont. 249, 108 Pac. 914; 28 L. R. A. N. S. 501; 31 Cyc. 1567 and 1568; 7 Ruling Case Law, Corporations, Par. 616; 3 Ruling Case Law, Bnks., Par.

71; Fairchild v. Southport (Conn.), 67 Atl. 471; Grollman v. Ward, 181 Ill. App. 598; 10 Enc. of Evidence; Stover v. Flower (Ia.), 94 N. W. 1100; Strader's Adm. v. Manufacturing Co. (Ky.), 142 S. W. 1073; 31 Cyc. 1640; Condit v. Baldwin, 21 N. Y. 219; 78 Am. Dec. 137; Sturdevant v. Bank (Neb.), 87 N. W. 156 and 95 N. W. 819; North Star Boot & Shoe Co. v. Stebbins (S. D.), 48 N. W. 833: 5 Cyc. 475; Bank v. Armstrong, 152 U. S. 346, 38 Law Ed. 470.) Meyer & Chapman were charged with knowledge that Deegan had no authority to represent defendant bank in soliciting the release of mortgage referred to in his letter. The addition of the title "assistant cashier" to the name of W. J. Deegan had no effect other than to bind Deegan personally. (Metcalf v. Williams, 104 U. S. 93, 26 L. Ed. 665.) If Deegan acted in a representative capacity, it was as the agent of Park Loan & Trust Company. The District Court abused its discretion in denying a motion for a continuance.

W. L. Walls and E. E. Enterline, for plaintiff and respondent.

The ownership of the note is not denied by the answer, which must contain a general or specific denial of each material allegation of the petition controverted by defendant. (Section 4389 Comp. Stats. 1910; Section 4422 Comp Stats. 1910; 31 Cyc. 198.) After denying knowledge, it is superfluous to add a denial of facts. (Flood v. Reynolds, 13 How. Pr. 112.) No assignment of error attacking the sufficiency of the evidence to sustain the judgment is presented and the point is not reviewable. (Capitol Hill Bank v. Bank, 24 Wyo. 423.) Where parties join in an assignment of error in their petition, the judgment will be affirmed even though improperly entered against one. (Greenwalt, et al. v. Imp. Co., 16 Wyo. 226.) There was no evidence of delivery of the note to J. W. Chapman, nor of the endorsement to him by Meyer & Chapman. Evidence on the point was necessary to establish ownership by Chapman individually. Deegan, as assistant cashier, had authority to conduct the transaction for the bank. (3 R. C. L. 444.) A