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ACTION AGAINST BANK BY HOLDER OF

right against both the drawer and the drawee, this UNACCEPTED CHECK NOT

complication would take the qualities of commercial

paper from the check, and place it upon the ground of MAINTAINABLE.

a common-law contract; and to apply this principle to

foreign and inland bills of exchange, the great movers INDIANA SUPREME COURT, MAY 26, 1830

and upholders of the world's business, would be to

embarrass if not destroy their usefulness in civilization, NATIONAL BANK OF BROCKVILLE, appellant, v. Sec- and impair the commercial faith of mankind. There OND NATIONAL BANK OF LAFAYETTE.

are no implied contracts on commercial paper, and it

must not be embarrassed by secret equities, and that A holder of a bank check which has not been accepted has no right of action against the bank on which it is

express contracts touching it can be made in any other drawn for a refusal to pay, although the drawee had at

manner than in writing is the constant regret of the the time of its presentation sufficient funds on deposit

ablest jurists. to pay the check.

These views are fully supported by the following authorities: Edmonds on Bills of Exchange, 405; Byles

on Bills, 18; Glenn v. Noble, 1 Blackf. 104; St. John v. verdict in favor of defendant, and plaintiff ap- Homans, 8 Mo. 382; Chapman v. White, 6 N. Y. 412; pealed. Sufficient facts appear in the opinion.

Bullard v. Randall, 1 Gray, 605; Pope v. Luff, 7 Hill, Godlove S. Orth and James Park, for appellant. 577; Griffin v. Kemp, 46 Ind. 172; Pollard v. Bowen, John M. La Rue and Frank B. Everett, for appellee,

57 id. 232; Henshaw v. Root, 60 id. 220. Under the

authorities we must hold the first and third paragraphs BIDDLE, C. J. Complaint in three paragraphs, by of the complaint insufficient. The appellant relies the appellant against the appellee, on a bank check. upon the case of Wilson v. Dawson, 52 Ind. 513, but in A. T. Cotton is the maker of the check, the appellant that case the bank, the depositor, was not a party to is the payee, and the appellee is the drawee. Demur- the suit; besides, the money was deposited under an rer, for want of facts, sustained to the first and third express agreement, and for an express purpose. In paragraphs of the complaint. Auswer of general this case, as the money was deposited with the drawce denial to the second paragraph. Trial by jury, and generally, there is no express contract, and the bank, special verdict for appellee. Motion for a venire de the depositor, is a party. We can see no analogy benovo overruled. Motion for a new trial overruled. tween the two cases. Motivu in arrest of judgment overruled. Exceptions, The special verdict returned by the jury upon the judgment and appeal.

second paragraph of the complaint is in the following We need not particularly state either the first or words: third paragraph of the complaint. Each sets out the “The National Bank of Rockville and the Second check, and its presentation for payment by the payee. National Bank of Lafayette are National banks, orThere is no averinent of its acceptance by the drawee ganized under the laws of the United States, the first in either paragraph; indeed, each paragraph avers that located at Rockville, in the State of Indiana, and the the drawee refused to accept the check. In other re- other at La Fayette in said State. That on the 14th spects, these two paragraphs are not well pleaded. day of September, 1877, Andrew T. Colton, by the Breach, non-payment of the check. A bank check has description of A. T. Colton, at the counter of said all the requisites of a bill of exchange, except that it bank of Rockville, drew a check on the Second Nais due on demand, without days of grace, and if dis- tional Bank of La Fayette, in the words and figures honored, requiring nc protest for non-acceptance, nor following, to wit: 'La Fayette, Ind., September 14, for non-payment. There is no implied contract in 1877. Second National Bank: Pay to J.M.Nichols, Jr., favor of the payee against the drawee, that he will or order, twenty-one and thirty-six in exchange doleither accept or pay the check. The drawee is no lars.' Signed 'A. T. Colton.' On the lower left hand party to the check until he accepts it, and a party can- margin of the check is the $2,136.00. That said check not be sued on an express contract before he enters has not been indorsed by the said Nichols. That check into it. The fact that the drawee has funds in his was mailed by the cashier of the bank of Rockville hands belonging to the drawer, sufficient to pay the aforesaid on Saturday, September 15, 1877, in time for check, does not change the rule.

the train going from Rockville to Terre Haute, at halfThe case of National Bank v. Elliott Bank is in past 11 o'clock, A. M., and received by the Second Napoint. We believe there is no decided case contrary tional Bank of La Fayette on Monday, September 17, to it; Abbott, J., delivered a long aud ingenious dis- 1877. That the check was inclosed in a letter which senting opinion, but we cannot regard it as sound. He reads as follows: 'National Bank of Rockville, Ind., places the right of the payee to sue the drawee for September 15, 1877, C. T. Mayo, Cashier, La Fayette, non-acceptance or non-payment of the check upon the Ind. Dear Sir. I inclose for return your twenty-one ground, that when a first party contracts with a second thirty-six $2,136. Respectfully, J. L. McCune.' party to pay a sum of money to a third party, the " That on Saturday, September 15, 1877, A. T. Colthird party, although not a party to the contract, may ton, the drawer of said check, deposited in the Second sue the first party upon the contract and recover. National Bank of La Fayette $3,815, subject to his This is true upon express contracts, but there is no check as a general depositor, and stated to the cashier implied contract, in such cases, that the first party of said bank that he had drawn several checks, one of shall pay the third party, hence the necessity of an which was to one Rambo, and one to the Bank of express acceptance of the check before the drawee is Rockville, which last was named as about $2,000; that liable. In the case put as an illustration, the drawee one of the checks so drawn had been paid, and at of the check is the first party, the drawer the second, the time of said deposit the account of the said A. T. and the payee the third. Now, as there is no implied Colton at the Second National Bank of La Fayette was contract between the drawee and payee, he cannot sue overdrawn in the sum of $480, and two of said checks the drawee upon the check until he has accepted it. were in the bank at the time of making said deposit,

There are other convincing reasons in our minds unpaid ; that at the opening of the bank at banking against the rule contended for. If the drawee, having hours on Tuesday morning, September 18, 1877, there funds, refuses to pay the drawer's check, he becomes was but $1,373.03 in said National Bank of La Fayette liable thereby to the drawer, and the drawer becomes to the credit of said Colton. That when said check liable to the payee. Now, if in such case the drawee was received by the defendant, on the 17th day was also liable to the payee, and the payee had his' of September, 1877, the same was placed in the bank,

and on the morning of the 18th the cashier of the de- acceptance of the check, nor in any manner affect its fendant took said check and calculated the exchange | validity. Bellamy v. Majoribanks, Exch. 389; on the sum of $2,136 in figures, on the back, at the rate Warweck v. Roggers, 44 Eng. C. L. R. 184. of 1% per cent, and placed the same on the cancelling From the view we have taken of the case it is not fork. Thereupon he was informed by the receiving necessary for us to decide what amount is expressed and paying teller of the bank that the drawer had in the body and on the face of the check. As the mint not sufficient funds on deposit to pay the check; dollar is not expressed either by the dollar mark or by thereupon the cashier immediately took the check a word, nor the fraction cent by a point, as when sums from the fork and declined to pay it, and indorsed are expressed in figures, perhaps the first number exupon it as follows: 'Cancelled in error; not charged; pressed by words might be held to meau dollars, check not properly drawn.' Caused the check to be and the second number cents, as amounts of money protested for non-acceptance. When the check was are thus usually expressed in figures. If so, the check presented by the notary for acceptance the reason would call for $21.36. Northrop v. Sanborn, 22 Vt. 433. given for non-acceptance was that the check was not But we do not decide this question, for we think the in proper form. The check was then returned to the same result must be reached whether we hold the plaintiff, with notice of its non-acceptance, in a letter, as amount of the check to be $2,136 or $21.36. It appears follows: ‘J. L. McCune, Cashier, Rockville, Ind. Dear to us that the whole question turns upon the acceptSir: I return, under protest, A. T. Colton on us, $2,136. ance or non-acceptance of the check by the drawee. Pro. fees, $1.05, refused on account of informality of As we have held, as a principle of law, that the drawee drawing up the check. Very respectfully, Chas. T. is not liable unless the check was accepted, and as the Mayo, Cash'r.' The check sued on was acknowledged jury have found that it was not accepted, it follows by said Colton, also by the plaintiff and defendant, as a that the appellant cannot recover. check for the amount of twenty-one hundred and The facts found by the jury in the special verdict thirty-six dollars ($2,136). If froin these facts the are the same in substance, and almost literally, incourt is of the opinion the plaintiff should recover, deed, as those averred in the first and third paragraphs then we find for the plaintiff, and assess her damages of the complaint. As we have held these paragraphs at $2,171.60 (twenty-one hundred and seventy-one dol- insufficient in law to constitute a cause of action, it lars and sixty cents). If the court is of opinion that follows, again, that the appellant cannot recover, and the defendant should recover, then we find for the we think the following authorities sustain us fully: defendant."

Johnson v.Collings, 1 East, 98; Levy v. Cavanugh, 2 Bos. Upon the return of the verdict the plaintiff moved 100; Dykers v. Leather Manufacturing Bank, 11 Pai.612; for a venire de novo, upon the ground that the verdict Bullard v. Randall, 1 Gray, 605; Luj v. Pope, 5 Hill, did not find on all the issues presented by the plead-413; S. C., 7 id. 577. ings. The court overruled the motion, and we think Certain instructions to the jury were asked by the properly The facts found decide the entire contro- appellant, and refused by the court. We need not set versy. The only issues presented by the second para- them out. The rulings on the demurrers to the first graph of the complaint were, the making of the check and third paragraphs of complaint sufficiently show, by the drawer, its presentation for payment to the that in our opinion, they were properly refused, even drawee, and its acceptance, averring the several dates. if it were necessary to give any instructions when the These averments were denied by the answer. On tbese jury are required to find a special verdict. They were issues, except as to the averment of acceptance, the to the effect that the payee could recover against the jury find for the plaintiff, with dates, etc. But the drawee upon the check, although he had not accepted plaintiff insists there is no sufficient finding on the it. issue of acceptance. We think there is. They find The evidence supports the verdict. The judgment is that the drawee declined to pay the check, and affirmed, at the costs of the appellant. caused it to be protested for non-acceptance. The protest was unnecessary, yet the fact is found distinctly that the drawee would neither accept nor

RIGHT OF WAY BY NECESSITY. pay the check. Indeed, it seems to us that the verdict is umecessarily particular in several respects. ENGLISH HIGH COURT OF JUSTICE, CHANCERY As to what is sufficient or insufficient to constitute a

DIVISION, FEBRUARY 23, 1880. special verdict, see the following cases : Toledo, W. &W. R. Co. v. Hammond, 33 Ind. 379; Pea v. Pea, 35 id. 387; MAYOR OP LONDON v. Riggs, 42 L. T. Rep. (N. S.) 580. Hansworth v. Bloonhufi, 54 id. 487; Whitworth v. Bal

Where the owner of a close and of land wholly surrounding lurd, 56 id. 279; Lock v. Mechanics' National Bank, 66

it grants the land surrounding the close, the implied id. 353; Graham v. State, id. 386.

grant or regrant of a right of way by the grantee to the The amouut of the check upon its face in dispute grantor to enable him to get to the reserved close, is a between the parties. It is contended by the appellant grant of a right of way for the purpose of the enjoythat it is drawn for $2,136; that the figures in the lower ment of the reserved close in its then state, and not a corner of the left-hand margin govern the amount. grant of a general right of way for all purposes. We are of opinion that in this view the appellant is

Where, at the time of the grant, the close was used for inistaken. It is true, the amount in the body of a

agricultural purposes, held, that the owner of the close

and his tenants were not entitled to a right of way to check may be stated in figures, and the check will be

the close for the purpose of using it as building land, valid, if not contradicted in words; but the amount

but as agricultural land only. stated in figures, usually at the bottom or top of the left-hand margin, does not control the amount of the EMURRER to statement of claim. One Heathcheck, especially when contradicted by words in the cote, in 1877, was the owner of 141 acres of land body of the check. These marginal figures are merely which surrounded completely a piece of old inclosed for the convenience of reference, and constitute no land of about two acres, called the “ Barn Hoppet," necessary part of the check. They may be there or which was used exclusively for agricultural purposes, not, may differ with the body of the check, or not; it and also belonged to Heathcote. In 1877, Heathcote, is the same thing. The instrument is perfect without for value, conveyed the 141 acres to the corporation of them. Smith v. Smith, 1 R. I. 398; 2 Daniell on Neg. London, the grantee agreeing to keep forever the conInst. 439, $ 1580. Placing the check on the cancelling veyed land an open space, subject only to forest laws fork by the mistake of the appellee's cashier, and and rights of common existing. No right of way from afterward correcting the error, did not amount to an Barn Hoppet was reserved in the conveyance men

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tioned. In 1879 Heathcote's lessees commenced the looked into a great number of cases, and among others erection of a house and other buildings on Barn Hop- several black-letter cases - that the right to a way of pet for the sale of refreshments to the public, and necessity is an exception to the ordinary rule that a carried materials for that purpose across the 141 acres mau shall not derogate from his own grant, and that which had been left uninclosed. In an action by the the man who grants the surrounding land is in very corporation against such lessee and Heathcote, the much the same position as regards the right of way to statement of claim set forth these facts, and that the the reserved close as if he had granted the close resurface of plaintiff's land was injured by these opera- taining the surrounding land. In both cases there is tions mentioned, and was liable to be injured in the what is called a way of necessity; and the way of nefuture by the crowds of people which would be drawn cessity, according to the old rules of pleading, must to defendaut's house, and asked that it might be de- have been pleaded as a grant, or where the close is clared that Heathcote or his lessee was entitled to no reserved, as it is here, as a re-grant. Now the quesgreater right of way to and from Barn Hoppet across tion is, what is the re-grant. I fail to find any exact plaintiff's lands than was necessary for the use of Baru decision on the point, or any thing coming near it, for Hoppet for agricultural purposes; that said right of it does not seem to have been discussed anywhere, and way might be defined; that defendant, the lessee, the only scintilla of authority I can find going any. might be restrained from drawing material across such where near the point is an observation by the Lord lands for the inclosure of buildings for purposes other Chancellor Cairns in Gayford v. Moffatt, supra, in thau ordinary agricultural ones, and that defendants which he says, reading from Mr. Serjt. Williams' note be restrained from using tho right of way for other to Pomfret v. Ricroft, supra: “This principle seems to thau agricultural purposes. Plaintiff also asked dam- be the foundation of that species of way which is usually ages.

called a way of necessity;" and then he goes on to say, Tho defendant demurred to the statement of claim “Now this is exactly the interpretation of the words except so far as it claimed, if necessary, to have a way used in this grant, with all ways to the premises apof necessity to the Baru Hoppet set out and defined. pertaining, it means with such a way as the law would The demurrer alleged that, except as aforesaid, the hold to be necessarily appertaining to premises such as statement of the claim was bad in law on the ground these — that is a way of necessity; therefore immedithat the defendant Heathcote and his tenants were ately after this lease was granted, this tenant occupsentitled to a way of necessity to the Barn Hoppet | ing the inner close became entitled to a way of necesacross the lands conveyed to the plaintiffs for the use sity through the outer close, and that way must be a way of the Barn Hoppet for all purposes and not for agri- suitable to the business to be carried on on the premcultural purposes only.

ises demised, namely, the business of a wine and spirit Davey, Q. C., and H. A. Gifard, for the demurrer:

merchant." It is therefore obvious to me that Lord Notes to Pomfret v. Ricroft, 1 Wms. Saund., Ed. 1871,

Cairns thought a way of necessity meant a way suitpp. 571-4; Clarke v. Cogge, Cro. Jac. 170; Proctor v.

able for the user of the premises at the time when the Hodgson, 10 Ex. 824; Plant v. James, 5 B. & Ad. 795;

way of necessity was created; and that is all I can Skull v. Glenister, 16 C. B. (N. S.) 81; Dutton v. Taylor,

find in the shape of authority on the subject. Well, 2 Lutw. 1487; Packer y. Welstead, 2 Sid. 39, 111; Jor

now, if we try the case on principle, treating this right den v. Atwood, Owen, 121; Pinnington v. Galland, I

of way as an exception to the rule, ought it to be Ex. 1; Beaudely v. Brook, Cro. Jac. 189; Holmes v.

treated as a larger exception than the necessity of the Goring, 2 Bing. 76; United Land Company v. Great

warrants? That of course brings us back to Eastern Railway Company, L. R., 10 Ch. 586; New

the question, What does the necessity of the case recomen v. Coulson, 5 Ch. Div. 133; 36 L. T. Rep. (N. S.)

quire? The object of implying the regrant, as stated 385 ; Finch v. Great-Western Railway Company, 28

by the older judges, was, that if you did not give the W. R. 229; Wimbledon and Putney Commons Conserv

owner of the reserved close some right of way or ators v. Dixon, 1 Ch. Div. 362; 33 L. T. Rep. (N. S.)

other, he could neither use nor occupy the reserved 697; Allan v. Gomme, 11 Ad. & E. 759; Henning v.

close, nor derive any benefit from it. But what is the

extent of the benefit he is to have? Is he entitled to Barnet, 8 Ex. 187.

say, I have reserved to myself more than that which Chitty, Q. C., and W. R. Fisher, for the plaintiffs,

enables me to enjoy it as it is at the time of the grant? referred to Dand v. Kingscole, 6 M. & W. 174; Lord

And if that is the true rule, that he is not to have more Darcy v. Askwith, Hob. 231; Crossley & Sons, Limited,

than necessity requires, as distinguished from what v. Lightowler, L. Rep., 2 Ch. 478; Whieldon v. Burrows,

convenience may require, it appears to me that the L. R., 12 Ch. Div. 31; 41 L. T. Rep. (N. S.) 327; Wood

right of way must be limited to that which is necesV. Saunders, L. R., 10 Ch. 582; 32 L. T. Rep. (N.S.) 363 ;

sary at the time of the grant; that is, he is supposed Gayford v. Moffatt, L. R., 4 Ch. 133; Pearson v. Spen

to take a re-grant to himself of such a right of way as cer, 1 B. & S. 571; 3 B. & S. 761.

will enable him to enjoy the reserved thing as it is. JESSEL, M. R. I am afraid that whatever I may That appears to me to be the meaning of a right of call my decision, it will in effect be making law, which way of necessity. If you imply more, you reserve to I never have any desire to do, but I cannot find that the him not only,that which enables him to enjoy the thing point is covered by any decided case or even appears he has reserved as it is, but that which enables him to to have been discussed in any decided case. The only enjoy it in the same way and to the same extent as if he satisfaction I have in deciding the point is this, that it reserved a general right of way for all purposes; that is, will in all probability be carried to a higher court, and As in the case I have before me, a man who reserves two it will be for that court to make the law, or as we say, asres of arable land in the middle of a large piece of declare the law, and not for me. The real question I land is to be entitled to cover the reserved land with have to decide is this: whether on a grant of land houses and call on his grantee to allow him to make a wholly surrouuding a close, the implied grant or re- wide metalled road up to it. I do uot think that is a grant of a right of way by the grantee to the grantor fair meaning of a way of necessity. I think it must to enable him to get to the reserved or excepted or in- be limited by the necessity at the time of the grant, closed close, is a grant of a general right of way for all and that the man who does not take the pains to sepurposes, or only a grant of a right of way for the cure the actual grant of a right of way for all purposes purpose of the enjoyment of the reserved or excepted is not entitled to be put in a better position than to be close in its then state. There is, as I have said, 110 able to enjoy that which he had at the time the grant distinct authority on the question. It seems to me to was made. I am not aware of any other principle have been laid down in very early times - and I have on which this case can be decided. I may be met by the

caso

or some

objection that a way of necessity must mean some- The following cases were quoted in the course of the thing more than what I have stated, because where the arguments and the judgment: In the Goods of Hind, grant is of the inclosed piece, the grantee is entitled to 16 Jur. 1161; In the Goods of Christian, 2 Rob. 110; use the land for all purposes, and should therefore be Baker v. Dening, 8 Ad. & E. 94; Hindmarch v. Chorlton, entitled to a right of way commensurate with his right | 4 L. T. Rep. (N. S.) 125; 1 S. & T. 433; 28 L. J. 132, P. of enjoyment. But there, again, the grantee has not & M.; In the Goods of Martin, 1 Rob. 712. taken from the grantor any express grant of a right of

The President (Sir James Hannen) delivered the way, and all he can be entitled to ask is a right to en

following judgment: Two interlineations were introable him to enjoy the property granted to him in the

duced into the will after execution and attestation, condition it was when granted to him. It does not

but the testatrix signed with her initials in the margin appear to me that the grant of the property gives any

against these interlineations, and the witnesses subgreater right. But even if it did, the principle appli

scribed their initials in attestation of this signature of cable to the grantee is not quite the same as the prin

the testatrix. The Wills Act, section 21, enacts that ciple applicable to the grautor, and it might be that

no interlineation or other alteration made in any will the grantee obtains a larger way of necessity - though

after the execution thereof shall be valid unless such I do not think he does — than the grantor does under

alteration shall be executed in like mauner as is rethe implied re-grant. I am afraid that I am laying quired in the execution of the will; but the will with down the law for the first time-- that I am for the

such alterations shall be deemed to be duly executed first time declaring the law; but it is a matter of ne

if the siguature of the testator and the subscription of cessity from which I cannot escape. The demurrer

the witnesses be made in the margin. The only quesmust therefore be overruled with costs.

tion then is, whether the signature and subscription

only is sufficient. A mark is sufficient, though the tesINTERLINEATIONS IN WILL.

tator can write. Baker v. Dening. Initials, if in

tended to represent the name, must be cqually good. ENGLISH HIGH COURT OF JUSTICE, PROBATE, DI

The language of the lord chancellor in Hindmarch v. VORCE AND ADMIRALTY DIVISION, FEB, 10, 1880.

Chorlton, seems equally applicable to the testator's sig

nature as to the wituesses' subscription: “I will lay IN THE GOODS OF BLEWITT,

down this as my notion of the law, that to make a valid

subscription of a witness, there must either be the name Where two interlineations were introduced into a will after

ırk which is intended to represent the execution and attestation, but the testatrix duly ini- name." And Lord Chelmsford says: “The subscriptialled the same in the margin opposite them, and the tion must mean such a signature as is descriptive of witnesses also subscribed their initials in attestation of

the witness either by a mark or by initials or by writ. such signature (by initialling) of the testatrix, held, that the interlineations were duly executed, and were enti

ing the name in full.” In Christian's case the initials tled to probate as part of the will.

of the witnesses were held sufficient, although if

merely placed to attest the alteration they will not ARAH BLEWITT, late of Chelsham road, Clapham, serve as an attestation to the will itself. In the Goods

in the county of Surrey, widow, died on the 27th of Martin. I am therefore of opinion that the interDec. 1879, having duly made her last will and testa- lineations against which the initials of the testatrix ment on the previous day (26th Dec., 1879), in the and the witnesses are placed should be admitted to words and figures following:

proof. “I, Sarah Blewitt, of Chelsham road, Clapham, in Bayford. — As part of the instrument? the county of Surrey, widow, do hereby revoke all The President. As part of the instrument. wills and other testamentary documents heretofore made by me, and do declare this to be my last will and testament. "I give and bequeath unto Amelia Cooke NEW YORK COURT OF APPEALS ABSTRACT. the sum of 501, and all my wearing apparel.' I give, devise and bequeath all the residue of' my estate,

ASSIGNMENT FOR CREDITORS --GOVERNS ACTION OF both real and personal, etc., unto John James Grocott,

ASSIGNEE —— PREFERENCES — TAXES. - L., in 1870, gave of, etc., and Thomas Henry Edward Cooke, of, etc.,

his bond and a mortgage on certain property to U. to their' heirs, executors and administrators respectively,

secure a certain debt due U. The mortgage contained upon trust, etc. And I appoint the said John James

a provision authorizing foreclosure in case tho taxes on Grocott and the said Thomas Henry Edward Cooke'

the mortgaged property should not be paid. The taxes my sole executor. In witness whereof, etc."

for 1877, 1878 and 1879 not being paid, U. commenced The will was duly executed by the testatrix in ac

foreclosure procedings and had a receiver appointed cordance with the provisions of the statuto, the attest

pendente lite, and through him secured possession of ing witnesses being a Mr. Nickinson, the solicitor who

the said property.

In 1879 L. made an assignment of prepared it, and a Mr. Rigby Allport.

his property for the benefit of creditors to D. in trust The deceased had scarcely executed the will, and the

to pay certain preferred debts named, but the assigusecond subscribing witness was in the very act of

ment contained no provision giving any preference to attesting her signature, when she expressed a desire to

taxes or directing their payment at all, except as appoint Mr. Cooke co-executor and co-trustee with Mr.

embraced in the general unpreferred debts of the Grocott, and to give to Miss Cooke a legacy of 501. and

assignor. U., upon a petition showing that the mortall her wearing apparel. As there was some danger of

gaged property was an insufficient security for his the deceased expiring before another will could be

debt and the other facts, asked for an order that the executed, Mr. Nickinson thought it best to carry out

assignee should pay and discharge the taxes in arrears. her intentions by interlining them in the will, and

lleld, that such order should be refused. The assignee after the interlineations (which are marked above by

derives all his power from the assignment, which is inverted commas) had been made, the testatrix placed

both the guide and measure of his duty. Beyond that her initials opposite them, and the witnesses subscribed

or outside of its terms he is powerless and without their initials underneath hers in attestation of ber authority. The control of the court over his action is signature.

limited in the same way and can only be exercised to Bayford and Stevens moved the court to decree pro- compel his performance of the stipulated and defined bate of the will with the interlineations to the execu- trust and protect the rights which flow from it. He tors. They amounted to a re-execution of the will. distributes the proceeds of the estate placed in his

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care according to the dictation and under the sole the courts below that a case was made out for a com-
guidance of the assignment, and the statutory provis- mitment, nisi, etc., of defendants. In such a case this
ions merely regulate and guard the exercise of an court may not, when an order of arrest or commitment
authority derived from the will of the assignor. The has been denied, review the order. And the fact that
courts therefore cannot direct the assignee to pay a the opinions below do not so state will not alter the
debt of the assignor or give it preference in violation rule. This court may not look into the opinions
of the terms of the assignment and the rights of cred- below to find matter differing from that in the order,
itors under it. Nicholson v. Leavitt, 6 N. Y. 519. The unless the language of the order is ambiguous and
case is not like that of a distribution of a bankrupt's needs aid for an understanding upon which it went.
or of a decedent's estate. Even if the State has a Ferher v. Gould, 22 Alb, L. J. 55. Appeal dismissed.
right to claim preference in the payment of taxes, an In re Nebenzahl et al. Opinion by the court.
individual cannot interfere in its behalf and claim it. [Decided June 15, 1880.]
Order aflirmed. Matter of Assignment of Lewis. Opin-
ion by Finch, J.

SUPERIOR COURT OF BUFFALO. [Decided June 15, 1880.]

GENERAL TERM ABSTRACT.
MALICIOUS PROSECUTION -- GROUND OF PROSECU-

ATTORNEY'S LIEN -- SETTLEMENT. - If an attorney
TION — WIAT MUST BE SHOWN - FAILURE OF PROSE-
CUTION. - In an action by T. against K. and others for

has omitted to protect himself by a notice forbidding malicious prosecution, it appeared that the prosecution

a settlement without him, and the parties compromise complained of was set on foot by the defendants and

the action before judgment, of which he has notice, he rested upon an affidavit drawn by one of the defeud

then proceeds in the suit for his costs, at the peril of ants and verified by K., the other, wherein a larceny

establishing conclusively that the adverse party had of deeds was charged to have been committed by T.

the design, when making tho settlement, of defeating

his demand for the costs. If he fail in satisfying the from X., but the facts and the circumstances of the

court of this, his proceedings, subsequent to notice, case were set forth and showed that T. baving per

will be set aside. McDowell v. Second Ave. R. Co., 4 suaded K. to let him have possession of deeds from

Bosw. 670; Sullivan v. O'Keefe, 53 How. 426; Crotty him to her, of real estato (belonging to her, but the title to which was held by him in trust), for the pur

v. Mackenzie, 52 id. 54. He must make out a clear pose of examination and correction, refused to return

case of collusion to justify him in proceeding in the

suit after notice of settlement. And it must be shown them to her but kept them by violence, and afterward conveyed the real estate to another. It also appeared

affirmatively that the settlement was made with the that at the time, the deeds were not recorded. Held,

purpose of depriving the attorney of his claim. Carthat if the statement of surrounding circumstances in

penter v. Sixth Ave. R. Co., 1 Am. L. Reg. (N. S.) 410. the affidavit were true, the action for malicious prose

Indigence of plaintiff, known to defendant, is not suffi

cient to establish collusion, or to requiro the latter to cution could not be sustained, even though the districtattorney afterward dismissed the indictment against

take notice of the lien or claim of tho attorney. SusT. after K. had been heard, as not sustained by the evi

picious circumstances are insufficient to show collusion. dence. The affiant was responsible for the statements

The attorney may protect himself by giving notice of in her affidavit but not for any legal conclusion there

his claim. But he does not acquire a vested interest from of a police magistrate or a district-attorney, or a

in or a lien upon the plaintiff's cause of action, by grand jury. In order to compel a defendant in an

stipulating beforehand for a share of the recovery. action for malicious prosecution to go into a defense,

Coughlin v. N. Y. C. R. Co., 71 N. Y. 448. The attorthe plaintiff must show, first, the want of a reasonable

ney has not, even after judgment, a lien, properly and probable cause for the complaint in the proceeding speaking, but only a claim or right to ask for the inter

vention of the court for his protection, when, having against plaintiff (Williams v. Taylor, 6 Bing. 183), and second, that it was instituted by malice. As to the

obtained judgment for his client, he finds there is a first ground, the plaintiff is bound to give in evidence

probability of the client's depriving him of his costs.

Mercer v. Graves, L. R., 7 Q. B. 499. The question is, facts sufficient to satisfy a reasonable mind that his accuser had no ground for the proceeding but a desire

not whether plaintiff has acted with a fraudulent in

tent, but whether defendant has acted fraudulently to injure him, and whether he had done so was for the

with respect to plaintiff's attorney. Where the attorcourt to determine as matter of law, assuming the evidence was true. Stewart v. Sonneborn, 98 U. S. 189;

ney has noticed the cause for trial, after notice of set

tlement, a motion to strike it from the calendar is alles v. Marks, II. & N. 56; Masten v. Deyo, 2 Wend. 424; Besson v. Southard, 10 N. Y. 236; Sutton

proper. (The settlement was made before amendment

to section 66 of the Code, by Laws of 1879.) Lang v. V. Johnstone, 1 Teri R. 269; Turner v. Ambler, 10 A. & E. 252. Judgment reversed and new trial ordered.

Buffalo Seamen's Union. Opinion by Beckwith, J. Thaule v. Krekeler. Opinion by Danforth, J.

BAILMENT - CONVERSION. – Though a man cannot [Decided June 18, 1880.]

be mado a bailee against his wili, yet where a customer PRACTICE – APPEAL TO (OURT OF APPEALS --ORDER

unintentionally leaves an article in a shop, and the

shop-keeper takes charge of it, he becomes a bailee of OPINION OF COURT BELOW

the article. A demand of the property and a refusal CANNOT CONTROL ORDER, -- In this case defendants

or neglect to re-deliver it is prima facie evidence of a were arrested under the provisions of the Code for

conversion, and it is incumbent on the defendant to fraud in contracting tho debt for which suit was

justify or excuse the refusal. Osgoodby v. Liemberner. brought, and after judgment they were again arrested under the act to abolish imprisonment for debt, upon

Opinion by James M. Smith. J. the same grounds. The judge discharged them on the

DAMAGES UPON EVICTION OF TENANT. - In an action ground that they were not liable to be arrested twice by a tenant against his landlord to recover damages for the same cause. Ilis decision was affirmed at Gene- for breach of contract in evicting him from the premral Term. The order of discharge stated that it was ises, he is not entitled to recover the value of goods made * upon due consideration of the proofs in the left thereon. The eviction did not deprive him of matter, and the allidavits on which the warrant was them. After demand and refusal, he could maintain granted.” In the order of allirmance at General Term, an action for their conversion, or replevin. But an no ground was stated. IIcld, that this court could not action sounding in tort cannot be joined with one upon say from the orders that they were not made upon the contract. Stenbeck v. Latta. Opinion by James M. merits, and that the proofs in the case failed to satisfy Smith, J.

DISCILARGING

ARREST

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