issue was, what were the mutual rights of the plaintiff's assignor and of Zarega & Co. at the time of the purchase by the former of these instruments, neither of them being parties on the record in this action. The rule is, that this inquiry lets in such evidence as would have been receivable between those persons.

on Ev., 465, [490], chap. 8, § 10.) The declarations of Zarega would not have been competent in his favor against the plaintiff's assignor, and were not admissible.

But it is claimed that, if not competent in bar of the plaintiff's action, they were admissible on the collateral issue of the credibility of the witness Zarega. He had testified that his house did not buy the bonds from the defendants, but did buy them of Scranton, the plaintiff's assignor. One defence set up in the answer was that the bonds were sold by the defendants to that house, and that afterward, on claim by it, there was a submission. to arbitrators and award in the defendants' favor. It was material to this issue, the testimony he had given, and it was on a material point that the defendants now claim that they sought to contradict him. And the papers offered, if shown to have been signed by or with the knowledge of Zarega, or to have come to his knowledge, were pertinent for that purpose; but there was no proof of this.

The defendants' request to charge, it was not error for the court to refuse. There was testimony by Scranton from, which the jury could find that he tendered a return to the defendants of the same instruments purchased of them.

The judgment should be affirmed, with costs to the 1espondent

All concur.

Judgment affirmed.

SIGNING IN TRADE OR ASSUMED NAME.

§ 20.

Jones v. Home Furnishing Co. (1896), 9 App. Div. Rep. (N. Y.) 103, 41 N. Y. Supp. 71.

Appeal by the defendant, the Home Furnishing Company, from three judgments of the County Court of the County of Kings, entered in the office of the clerk of the County of Kings on the 1st day of April, 1896, upon the decision of the court affirming three judgments rendered by a justice of the peace of the City of Brooklyn.

R. W. Newhall, for the appellant.
John B. Green, for the respondent.

HATCH, J.: Separate actions were brought upon three promissory notes. The notes, which were made payable to the order of "National Publishing Company," and were signed by the defendant through its president, were each in the same form, excepting the dates and amounts. The defendant is a domestic corporation, having its place of business in Brooklyn. The National Publishing Company is a name assumed by plaintiff in carrying on his business, and represents nothing beyond that assumption. It is conceded that the notes were each given for a valuable consideration received by the defendant from the plaintiff, but the claim is made that the notes were made payable to a company that had no existence, and that, therefore, the paper was fictitious; and that as the indorsement was fictitious and spurious no title passed to the notes. This defense savors of delay and the use of legal remedies to prevent collection of a bona fide debt. The notes were as much payable to Jones when they were made payable to the name under which he carried on his business as though he had been named therein. It was not in legal contemplation a fiction, but it was the plaintiff under this business name and represented him. When the notes were made and delivered to plaintiff under these conditions they created a liability against the defendant in plaintiff's favor; and had the complaint set out the fact that the payee was the plaintiff's business name, and that the notes were so made payable on account thereof, there would be little doubt that defendant would not have had the temerity to interpose a defense. At the most, the question now here is one of pleading, as plaintiff has made the usual allegation of delivery to the payee and indorsement by it to the plaintiff. But the facts were all known before issue was joined and when the trial was had. The complaint, therefore, will be deemed amended in accordance with the facts. The notes in plaintiff's hands are subsisting liabilities against the defendant in his favor. (Mechanics' Bank v. Straiton, 3 Keyes, 365; Maniort v. Roberts, 4 E. D. Smith, 83.) These notes having been given for bona fide debts, and delivered to the plaintiff, defendant is estopped from setting up as against plaintiff that they were made payable to a fictitious payee, if by such averment the notes would be defeated in plaintiff's hands. (Irving Nat. Bank v. Alley, 79 N. Y. 536.)

The judgments appealed from should be affirmed, with costs.
All concurred.

SIGNATURE BY PROCURATION.

§ 23.

Attwood et al. v. Munnings (1827), 7 B. & C. 278, 4 Eng. Rul. Cas. 364.

Assumpsit by the plaintiffs, as indorsees, against the defendant, as acceptor of a bill of exchange for 1560l. Plea, the general issue. At the trial before Lord Tenderden, C. J., at the London sittings after Michaelmas term, 1823, a verdict was found for the plaintiffs, subject to the opinion of this court on the following case:

The plaintiffs were bankers carrying on business in the city of London; the defendant was a merchant engaged in extensive mercantile business, and also, in joint speculations to a considerable amount, with Thomas Burleigh, Messrs. Bridges and Elmer, S. Howlett, and W. Rothery. In the year 1815 the defendant went abroad on the partnership business, and remained abroad till after the bill upon which this action was brought became due. By a power of attorney, dated the 18th of May, 1816, the defendant granted power to W. Rothery, T. Burleigh, and S. Munnings, his wife, jointly and severally for him, and in his name, and to his use, to sue for and get in monies and goods, to take proceedings, and bring actions, to enforce payment of monies due, to defend actions, settle accounts, submit disputes to arbitration, sign receipts for money, accept compositions; "indorse, negotiate, and discount, or acquit and discharge the bills of exchange, promissory notes, or other negotiable securities which were or should be payable to him, and should need and require his indorsement;" to sell his ships, execute bills of sale, hire on freight, effect insurances; "buy, sell, barter, exchange, export and import all goods, wares, and merchandises, and to trade in and deal in the same, in such manner as should be deemed most for his interest; and generally for him and in his name, place, and stead, and as his act and deed, or otherwise, but to his use, to make, do, execute, transact, perform, and accomplish all and singular such further and other acts, deeds, matters, and things as should be requisite, expedient, and advisable to be done in and about the premises, and all other his affairs and concerns, and as he might or could do if personally acting therein." By another power of attorney, dated the 23d of July, 1817, and executed by the defendant when abroad, he gave to his wife, S. Munnings, power to do a variety of acts affecting his real and personal property; "and also for him and

on his behalf, to pay and accept such bill or bills of exchange as should be drawn or charged on him by his agents or correspondents as occasion should require, &c.; and generally to do, negotiate, and transact the affairs and business of him, defendant, during his absence, as fully and effectually as if he were present and acting therein." T. Burleigh corresponded with the defendant, and acted as his agent, both before and after the receipt of this power. The defendant, while abroad, employed part of the produce of the joint speculations in his individual concerns, and during his absence, T. Burleigh, for the purpose of raising money to pay creditors of the joint concern, who were become urgent, drew four bills of exchange for 5col, each upon the defendant, dated May 22d, 1819. The proceeds of those bills were applied in payment of partnership debts; they were accepted by the defendant by procuration of S. M., his wife. The bill in question was afterwards, in order to raise money to take up those bills, drawn and accepted in the following form:-"Six months after date pay to my order 1560l., for value received: T. Burleigh. Accepted per procuration of G. G. H. Munnings.-S. Munnings." This bill was discounted by the plaintiffs. The defendant returned to England in October, 1821, and he, and each of the partners to the joint speculations, claimed to be a creditor on that concern.

BAYLEY, J. This was an action upon an acceptance importing to be by procuration, and, therefore, any person taking the bill would know that he had not the security of the acceptor's signature, but of the party professing to act in pursuance of an authority from him. A person taking such a bill, ought to exercise due caution, for he must take it upon the credit of the party who assumes the authority to accept, and it would be only reasonable prudence to require the production of that authority. The plaintiff in this case relies on the authority given by two powers of attorney, which are instruments to be construed strictly. By the first of the powers in question the defendant gave to certain persons authority to do certain acts for him, and in his name, and to his use. It is rather a power to take than to bind; and, looking at the whole of the instrument, although general words are used, it only authorizes acts to be done for the defendant singly; it contains no express power to accept bills, nor does there appear to have been an intention to give it: the first power, therefore, did not warrant this acceptance. The second power gave an express authority to accept bills for the defendant and on his behalf. No such power was requisite as to partnership transactions, for the other partners might bind the firm by their accept

ance. The words, therefore, must be confined to that which is their obvious meaning, viz., an authority to accept in those cases where it was right for him to accept in his individual capacity. Besides, the bills to be accepted are those drawn by the defendant's agents or correspondents; but the drawer of the bill in question was not his agent quoad hoc. The bills are to be accepted, too, "as occasion shall require." It would be dangerous to hold that the plaintiff in this case was not bound to enquire into the propriety of accepting. He might easily have done so by calling for the letter of advice; and I think he was bound to do so. For these reasons, I am of opinion that judgment of nonsuit must be entered.

HOLROYD, J. I agree in thinking that the powers in question did not authorize this acceptance. The word procuration gave due notice to the plaintiffs, and they were bound to ascertain, before they took the bill, that the acceptance was agreeable to the authority given. The case does not state sufficient to show that this bill was drawn by an agent in that capacity, but rather the contrary; for it appears that it was drawn to raise money for the joint concern in which the drawer was a partner; it does not, therefore, come within the special power. Then, as to the general powers. These instruments do not give general powers, speaking at large, but only where they are necessary to carry the purposes of the special powers into effect.

LITTLEDALE, J. I am of the same opinion. It is said that third persons are not bound to enquire into the making of a bill; but that is not so where the acceptance appears to be by procuration. The question then turns upon the authority given. The first power of attorney contains an authority to indorse, but not to accept bills; the latter, therefore, seems to have been purposely omitted. Neither is this varied by the general words, for they cannot apply to any thing as to which limited powers are given. The second power gives authority "to accept for me and in my name, bills drawn or charged on me by my agents or correspondents, as occasion shall require." The latter words, as to the occasion, do not appear to me to vary the question; and, reading the sentence without them, it authorizes the acceptance of bills drawn by an agent. The present bill was not drawn by Burleigh in his character as agent, and therefore the acceptance was without sufficient authority, and the plaintiff cannot recover upon it. Postea to the defendant.