author: Cheistiancy J.: Campbell J.,

text:
    Adoniram Dann v. Charlotte Cudney.

      Estoppel in pais, — Where tbe husband of a "woman sold a horse belonging to her, without her authority, and sho was informed of the sale before payment had been made, and afterwards had ampio opportunity to inform the purchaser of her rights, but neglectedto do so until after he had made payment to the husband, it was held, that she was estopped from thereafter asserting title to the horse against a mortgagee of the purchaser.

      Cross-Examination. — A woman having brought trover against the mortgagee of property which had been sold by her husband, and subsequently mortgaged by the purchaser to the defendant, testified that the horse was her property, that she had never sold it, nor authorized its sale, and that if she had her rights it would still be in her possession \~Held, That’upon cross-examination it was proper for defendant to go fully into the question of her neglect to give the purchaser notice of her rights.
    Whore the charge of the Oourt, as shown by the record, would have a tendency to mislead the jury, but the record does not purport to give the whole charge, this Court cannot pronounce it erroneous.

      Heard April 27.

      Decided May 2

      Error to Saginaw Circuit.
    , The action was trover for the conversion of a horse. Plea, the general issue with notice of special matter.
    The facts sufficiently appear in, the opinion.

      John JB. ■Dillingham, for plaintiff in error:
    It must be inferred in this cause from the relations existing between' the defendant in error, and Alfred Cudney — who sold the horse in controversy — they being married to each other, that in such sale he was acting .as her agent in making the same, and the evidence given in the Court below tends to show that such agency did exist. — 2 Kent's Com., 827, 828, 9th ed.; Story on Agency, §255; 2 Greenleaf's Ev., §67.
    The defendant in ' error having full knowledge of the -sale by her husband of this horse to John Sevenoakes, and suffering the horse to remain in possession of the vendee until he had fully paid for the same to her husband; she is now estopped from asserting her claim to the horse. — Story on Agency, §127, §128, and note 1, and the cases above cited.

    As to what is proper cross-examination, see — People v. Horton, 4 Mich. R., 82; Campau v. Dewey, 9 Mich. R., 382.
    Declarations, to become part of the res gestee and to be admitted in evidence on the trial, must have been made at the time the act was done, which they are supposed to characterize. — 1 Greenleaf's Ev., §108, and note, 2; Carter v. Buchannon, 3 Kelly R., 513; Blood v. Rideout, 13 Met., 237; Boyden v. Burke, 14 How., 575.

      H Joslin, for defendant in error:
    The rule is well settled, that a witness cannot .be. cross examined 'except as to facts and circumstances stated in the direct examination. — 1 Greenleaf's Ev., §433; 14 Peters, 446; Cowen & Hill's Notes, p. 731.

      The question asked of Charlotte Cudney was immaterial.
    There was no evidence given on the direct examination of her previous Jcnowleclge of the sale, or the material facts thereof — no foundation for proving in any manner the plaintiff’s subsequent ratification of the sale; hence the answer to the question could not- tend to prove a ratification. — 2 Greenleafs Evidence, §66; Owings v. Hull, 9 Pet., 607; Bell v. Cunningham, 8 Pet., 81; Courteen v. Touse, 1 Campbell, 43, note.

    There is no error in a charge which, though not strictly accurate, could not have misled the jury. — People v. Scott, 6 Mich., 287.
   Cheistiancy J.:

This was an action of trover brought by defendant in error, who was a married woman, for the wrongful conversion of a horse. She had allowed her husband to use the horse, and he had driven him, with his own, from Canada to East Saginaw, about the 1st of November, 1862, where, within two days after, he sold this and the other horse to one John Sevenoakes, who, on the twelfth day of the same month, executed a chattel mortgage of the horse to Dann, the defendant below, under which Dann •subsequently, (but how soon does not appear,) took possession, which is the conversion complained of.

The wife had never given her husband any previous authority to sell the horse; but being with her husband at East Saginaw, they both went, the next morning after the sale, to the house of Sevenoakes, and took breakfast; and while on the way to the house for that purpose, the husband, she says, told her he had sold the horse to Sevenoakes. She was then asked by the defendant whether,’ at any time between that morning and the time when the horse was taken on the chattel mortgage, she informed Sevenoakes that the' horse was her property, and that her husband had no right to sell him.

This question was objected to on the part of the plaintiff, and excluded by the Court. The testimony already given by her tended strongly to show that she- had a good opportunity to have given this notice to Sevenoakes the next morning after the sale, and her subsequent testimony, as well as that of Sevenoakes, tended also to show that this opportunity continued for weeks afterwards, and there was no evidence of a contrary tendency. Her own testimony also shows — and there seems to have been no dispute about the fact — that she also knew that Sevenoakes had not yet paid for the horse at the time when she was informed of the sale. Had she been informed not only of the sale of the horse, but that he had been paid for, she might not, perhaps, have been bound to any diligence in making known her rights; as her silence might not then lead the purchaser into any further act to his prejudice; but, knowing that the husband had assumed to sell the horse as his own, under circumstances not calculated to excite any suspicion of his right, and that payment had not yet been made, she must also have known that her silence would still leave the purchaser under the belief that the horse belonged to the husband, and that he was at liberty to pay the husband, or deal with him as the owner. She could not, then, honestly neglect any fair or convenient opportunity to give early notice of her right, and of her husband’s want of authority, unless she intended to be bound by any payment which might be made to her husband, or any other arrangement the purchaser might make with him in the meantime. She must have known that payment to the husband would be the natural result of her neglect to. give the notice. And if, under such circumstances, she,, having a good opportunity to give the notice, yet refrained-from giving it until payment had been made to. the husband, or the purchaser had parted with property-on the faith of the husband’s right, she should be bound by the acts of her husband, - and suffer the consequences of the error into which her neglect had led the .purchaser ; and to allow her to recover ‘ the price again, after the purchaser had thus paid for it, would be to aid her in the commission of a gross fraud. Under such circumstances, upon every principle of justice, she would be as much estopped as if she had stood by at the sale without objection, and permitted the husband to sell the horse as his own.

The defendant, therefore, had a right to show that he had thus been led into paying the husband for the horse, or parting with property on the faith of the husband’s right, in consequence of her negligence in giving notice of her rights when she had a fair opportunity to do so, and when she knew that payment had not been made. He had, therefore, the right to go fully into the question of delay in giving the notice, her opportunities for giving it, her knowledge that payment had not been made, and the fact of his paying or parting with property on the faith of the husband’s right; and being on cross-examination, it was entirely immaterial which of these facts he should show first. The question proposed was entirely legitimate on cross-examination, as she had testified in chief that she had never sold the horse, nor authorized the husband to sell him, and that, if she had her rights, the horse would still have been in her possession. The Court,. therefore, erred in overruling the question.

It is clear, from the subsequent testimony in the cause, that this error was . calculated materially to prejudice the defence; as it appeared from the testimony of Sevenoakes, which was confirmed > by that of the husband, and which was not disputed, that during the time to which the question referred — that is, between the morning when she was informed of the sale and the time when the horse was taken on the chattel mortgage — Sevenoakes did actually pay the husband for the horse through another trade, which was made between them about the twentieth day of November, and.the note the husband had taken for the horse was given up.

As the record does not purport to give the whole charge, we cannot say it was erroneous. • The charge, as a whole, may have been in accordance with the principles above laid down. But if the whole charge is stated in the record, it was inapplicable to the case, and calculated to mislead the jury. The jury should have been directly told that, if they should find that the plaintiff, having notice of the sale, and that payment was still to be made, neglected to give notice of her rights when she had convenient opportunity to do so, she took upon herself the risk of payment being made to the husband in the meantime; and if they should find that the purchaser had, in good faith, continued to deal with the husband as the only party in interest, and had paid him, for the horse, she would be bound by the acts of her husband as if they had been done by herself.

The judgment must be reversed, with costs, and a new trial granted.

Cooley- J. concurred.

Martin Ch. J. did not sit in this case.,

Campbell J.,

dissenting:

I do not agree with my brethren that there was any error, in sustaining the objection to the question asked of Mrs. Cudney, on cross-examination, concerning her informing Sevenoakes of her claims. It can hardly be seriously claimed that the silence of the real owner, whose property has been sold by another without her knowledge, can usually, in any way, -affect her right to disregard such tortious action. A purchaser cannot protect himself against the real owner, if the latter has not misled him, in making or completing the purchase or payment, by conduct which was inconsistent with the honest incidents of ownership. ■In the case before us, at the time when Mrs. Cudney was asked the question rejected; it only appeared that her horse had been taken from her possession, without her authority or consent, by defendant and John Sevenoakes,, defendant claiming under an asserted chattel mortgage, but it not appearing from whom; that her husband had sold the horse without authority, at a time when they were on a visit to East Saginaw, where he had driven the horse, in a team, from Canada; and that, on the day after the sale, her husband told her of it as they were going to breakfast at the house of Sevenoakes. There was nothing in the case at that time which tended to show that she had reason to believe the horse was not. fully paid for, nor was there any testimony at that time tending to show that Sevenoakes or defendant did any act, subsequent to her ascertaining about the sale, which they would not have done had they known of her claim. "When, therefore, the Court refused to allow her to be asked whether she informed Sevenoakes of her claim, there was nothing to show that such information could have been in any way material. The propriety of its rejection cannot be affected by the subsequent introduction of evidence for the defendant, which might have made it pertinent. It could only be made pertinent by facts relating strictly to the defendant’s case, which, as an estoppel, was, in its nature, one of avoidance; and although the Court might, perhaps, have allowed this case to be opened on a cross-examination' of the plaintiff’s witnesses, yet it is not usual for this to be done until there is something to connect it with, and it is certainly no error in the Court to refuse it. I think the testimony was immaterial when offered, and that, had the question been answered in such a way as to show plaintiff had not informed Sevenoakes, the answer would not have affected her claims as they then appeared. It is evident that the Court below took this view of the matter; for when the defence was opened, and facts were introduced which might be claimed to form a foundation for an estoppel against her, the Court admitted evidence that she had not informed Sevenoakes of her rights, and the facts went on this point to the jury. I do not deem it necessary to comment on the weight of the facts proved, as their consideration does not belong to any tribunal but the jury; and there is no reason to suppose, from the record, that the jury were not properly instructed on the subject. There is no exception based upon any such ground, and the Court below must be presumed to have-given them all needful cautions. The charges given were correct so far as they appear, and the charge refused was rightly refused.

While I fully agree that circumstances may exist when silence is not consistent with the duty of an ownér of property, yet I think that such silence can never be material until it appears, at least, that some step has been taken which m'ay have been had in reliance upon it, and this did not appear until after this question had been asked and rejected.

I think the judgment should be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    People, on relation of Michael Sage, v. The Township Board of Springwells.

      'Certiorari to TownshipTBoard — return to, by Town Cleric — fees to be prepaid. — On a common law 'certiorari to a Township Board, the Town Clerk is entitled to payment of his* fees for making a return under section 5Gá3 of Compiled Laws, and is not obliged to make return until such fees have been paid.

      Heard and decided May 2.

      The Commissioners of Highways for the Township of Springwells having. ordered the laying out of a certain ■highway through the property of the relator, which order, on appeal to the Township Board, was affirmed, the relator sought by a writ of certiorari to bring the matter before this Court for review. The Town Clerk having neglected to make return to the writ, an order was granted requiring him to show cause; in answer to which it appeared that his fees for making such return had not been paid.

      George 8. and JS. Y. 8wift, for the Clerk.

      JET. M. Oheever, for plaintiff in error.
   The Court held that on a common law certiorari to a Township Board, the Town Clerk was entitled to payment of his fees by the plaintiff in error for making a return-to the writ, under §5648 of the Compiled Laws, and that he was not obliged to make return until such fees had been paid.


author: Christiancy J.: Campbell J.: Martin Ch. J.

text:
    The People on relation of William Lomane v. William Hammond, Quartermaster General of the State of Michigan.

      Bounties. — Act No. 23 of the Legislature of 1864, “authorizing tlio payment of bounties to volunteers in the service of the United States” — Laws of 1864, p. 53 — was designed to distinguish, between volunteers under the call of' October 17, 1863, and those enlisting under the call of February 1, 1864, and to provide a bounty for the latter only. •
    Accordingly, where one enlisted in the military service of the United States March 12, 1864, and was credited to a town whose quota, under the President’s call of October 17, 1863, was not full, it was kdd, that *he was not entitled to the bounty provided for by said act.

      Heard January 26.

      Decided May 3.
    Motion for mandamus.

    The facts are stated in the opinion.

      Bobinson <fb Broolcs, for the relator.

      Albert Williams, Attorney General, for- the respondent.'
   Christiancy J.:

This is an application for a mandamus to ‘compel the Quartermaster General to pay to the relator — a soldier who enlisted in the township of Riley, St. Clair county, March 12th, 1864, and was mustered and credited to the township on the twenty-eighth day of the same month — a State bounty of $100, which he claims is justly due him under the eighth section of the “act authorizing the payment of bounties to volunteers in the service of the United States,” approved February 5, 1864.

On the lYth day of October, 1863, the President of the United States, by his proclamation, made a call upon the several States for 300,000 men for the military service of the United States, under which call the quota of this State, .and of the several Congressional Districts, was duly assigned by the proper authorities of the United States, and the quotas of the several townships and sub-districts in the State were duly apportioned and assigned by the Acting Assistant Provost Marshal General of the United States for this State, as early as the Yth of November, 1864. A portion of the men under this call had been furnished and credited to the several sub-districts prior to the 1st day of February, 1864, two men having been credited to the township of Riley under said call up to that time, leaving a balance due on the quota of that township on that "day of twelve men.

On the 1st day of February, 1864, the President issued • another call or order, in the following words:

“ Washington, Feb. 1, 1864. ,
“It is ordered that a draft for 500,000 men, to serve for three years or during the war, be made on the 10th of March next, for the military service of the United States, crediting and. deducting therefrom so many as may have been enlisted or drafted into the service prior to thé 1st day of March, and not heretofore credited.”

On the 2d day of February, 1864, the Acting Assistant Provost Marshal General, Lieutenant Colonel Hill, before -having received from the proper officer at Washington the assignment of the quota for the State or Congressional Districts, and before having received his instructions under said last order, s issued certain instructions in refer ence to returned and .re-enlisted veterans' then in the State, for the purpose of enabling them to obtain the local bounties. In this, among other things, he says:

“The additional call for 200,000 men will increase the quotas of the several townships, wards and sub-districts by' two-thirds; and the returned veterans who may have been credited, on the muster-in' rolls, to localities that had previously filled their quotas will now have the opportunity of receiving any local bounty paid by the 'several localities to which they were credited.”

This was incidentally recognizing the order of the President of February 1st as,.in effect, a call for 200,000 men in addition to the previous call of October for 300,000 men. But, so far as I have been able to discover, this was the only official act of that officer, or of the Federal authorities at Washington, recognizing the order of February 1st, 1864, as intended merely as an additional call for 200,000 men. On the other hand, the quotas of the State, and of the several Congressional Districts of the State, were afterwards assigned by the Provost Marshal General at Washington, and those of the sub-districts apportioned and assigned by. his Acting Assistant here, under this call or order alone, without any recognition of the'continued existence of the former call, which was treated as abrogated from the date of the latter, and it was upon this basis that settlements were made with the various districts in regard to their several quotas. But at the time this 500,000 call was issued, a bill' authorizing- the payment of bounties 'to. volunteers in the service of the United States was pending in the Legislature, which had been introduced on the 28th day of January, and after receiving many important amendments, (mostly made after the 2d day of February,) was passed on the 4th, and approved by the Governor on the 5th day of February.

The eighth section of this act provides that:

“ There shall be paid from the war fund of this State a uniform State bounty of $100 to each jierson below the rank of a commissioned officer, who may hereafter enlist and be mustered into the military or naval service of the United States, and who shall be credited on the quota of this State, or any military district thereof, under any call or order of the President or military authorities of the United States, or of this State, made or issued since the 1st day of January, 1864.”

The relator enlisted on the 12th, and was mustered and credited on the 28th of March, 1864, before the township had furnished its quota under the 300,000 call — or three-fifths of its quota of 500,000 men — the time for the draft under the last call having been postponed from the 10th day of March until after his enlistment and muster. He made the proper demand, and furnished to the Quartermaster General the requisite evidence, to entitle him to the bounty, (if he is entitled to it under the act.)

The relator insisted that at the time of his enlistment and muster there was no call in force issued prior to January 1st, 1864, under which he could have enlisted; that the call of October 17th, 1863, for 300,000 men, was, in effect, revoked or abandoned, and ceased to have effect; that the order of February 1st, 1864, for 500,000 men, was, from its date, the only order in force; that he, -therefore, enlisted, was mustered and credited under this call, issued after the 1st day of January, 1864, and consequently that his case comes directly within the words and intention of the eighth section of the act.

If the question depended only upon the legal effect of the two calls or' orders of the President, and the words of the eighth section of this act, as seemed to be taken for granted upon the argument, it would, I .am inclined to think, be .difficult to controvert the relator’s claim. But the real question is not merely what was the legal effect of those orders, or whether both, or -only the last was actually in force at the time of the passage of the act, but what was the intention of the Legislature to be gathered from the whole act, and the policy of the State as evinced by this and other acts relating to bounties ? Did they mean to distinguish between those who had been called for under the call of October 17th, 1868, and the last 200,000 mentioned or included in the order of February 1st, 1864, giving a State bounty to the latter, but not to the former? Or, in other words, did they intend to grant the latter bounty only to the portion the State was bound to furnish of the 200,000 men who had not been called for in the previous call of October ?

It must be remembered that volunteers had been called for by the Governor, and enlistments going on under the October call, and the quota of the State and sub - districts had been in part filled prior to the call of February 1st. The policy of the State had been to rely mainly for bounties upon voluntary contributions, or local bounties raised by committees or by townships, cities and sub - districts, ■etc., only one act, (that of March 6, 1863,) having been previously passed, which gave a State bounty, and that of only $50, in the discretion of the Governor, to men enlisting in regiments, companies or batteries heretofore mustered from this State. But various townships, cities, etc., had voted to raise a tax or borrow money, or directed committees or - township officers to advance or raise money to enable them to fill their quotas by volunteers, with the expectation that legislative sanction would be given to their acts; and this had been done under previous calls of the President. ■ — ■ See Acts of March 7, 1863, Laws of 1863, pp. 92 to 95. A similar course had been taken by various localities and sub - districts under the .call of October, 1863, for 300,000 men, and the object of the first section of this act of February 5, 1864, is to legalize such action in reference to this and other former calls. The object of the second, third and fourth sections was to effect a like purpose. The second section legalizes the action of the Boards of Supervisors, the Common Councils of cities, the township boards or the legal voters of any city, township or county, where they had, in their corporate capacity, offered or agreed to pay any bounty, or issued bonds or evidences of indebtedness for any such purpose, and authorizes the issuing of bonds in pursuance of liabilities thus incurred.

The third section legalizes any bonds, warrants, certificates or other evidences of debt issued, or to be issued, by certain officers therein mentioned, in pursuance of resolutions theretofore adopted, for the purpose of filling the-quota of any township, city, ward, etc., “under the draft first ordered for the 5th day of February, 1864,” (which draft was ordered under the call of October, 1863, but which was never, in fact, made, but being postponed, the order of February 1, 1864, took its place,) “or the call previous thereto,” and provides the mode of payment.

The fourth section gives the qualified electors of cities, wards and townships, by vote at the annual charter or township elections, or at legal meetings, on ten days’ notice, to determine what sum shall be raised to be paid as bounty, not exceeding $200, for men mustered into tbe service, credited, etc.

“ On either of the three last calls of the President* and to determine in favor of or against allowing or paying advances or pledges made by individuals for raising bounties to fill the quota of the township, etc” “ Under the twp calls of the President of the United States next preceding the 20th day of January, 1864.”

It is’ clear that all -the preceding provisions, except, perhaps, some of those in the fourth section, refer to engagements already entered into, or liabilities already incurred by the different townships, wards, etc., for the purposes mentioned; and the object of the provisions is to legalize such past action. And though the provisions of the fourth section in reference to sums to be voted for paying bounties not exceeding $200, might, perhaps, authorize raising such sum by vote where no previous undertaking had been entered into to that effect; yet the provision extends to no case in which such engagement might not have been entered into, or such liability incurred already. All the provisions of this and the preceding sections must, therefore, be supposed to refer to calls under, and for the purpose of satisfying which, such engagements had been entered into, or in which it was probable they might have been entered prior to the passage of the act. And though the phrase, “the three last calls of the President,” might literally include the call of February 1st, 1864, the act having been passed on the 4th, and approved on the 5th of February; yet' it can hardly be supposed that the two, or, at most, three days, after this call had been issued at Washington, any such action could have been already taken 'in the "several townships and sub - districts as to have incurred the class of liabilities here intended to be provided for. It is much more reasonable to suppose, (what I find, on examination, to Tbe tbe fact,) that these words being already in the original bill, as introduced three days before the call of February 1st, when they could not refer to that call, were never intended or understood as including it, and that it did not, therefore, occur to the members as necessary to be altered in consequence of this call. It will be noticed that the next clause of this section, for making good the pledges of individuals in raising bounties, is confined to the “two calls of the President next preceding the 20th day of January, 1864.” It would seem from this that the' Legislature, were not willing to extend this provision in reference to individual advances or pledges further back than the two last calls, owing, probably, to the great danger of fraud, and imposition under it, though as to township and other public' or corporate action, where there was less danger, they were willing to go back one call further. But it is perfectly clear, from this clause, that the Legislature recognized the call of October, for 300,000 men, as one of the two calls next preceding the 20th day of January, 1864, and there can be no doubt that this, also, is one of the “ three last calls ” spoken of in the preceding clause; and in both cases provisions are made in reference to bounties quite different from those contained in the subsequent sixth section, which relates only to calls made after the 20th day of January, 1864. It is, therefore, evident, from a comparison of the fourth and sixth sections, that the Legislature did mean to make a distinction between the 300,000 men who had been called for in October, 1863, and those understood by them to be called for under the order of February 1st, 1864, or, which is the same in effect, between those who had been called for in October, 1863, and the last 200,000 covered by the call of February 1st, 1864, and that they intended to make, and did make, a different' provision for bounties in the two cases. By the fourth section, the sums that may be raised by cities, wards and townships is limited to $200, and the men called for by the “three last calls of the President.” By the sixth section, applicable only to calls made after the 20th of January, 1864, the sum which may be raised by the . township boards and the Common Councils of cities is restricted to $100. This section also clearly recognizes the call of February 1st, 1864, and the provisions of the section are made applicable to that and future calls. The language is:

“ On any call for volunteers made by the President of the United States since January 20th, 1864, or which he may hereafter' make.”

Why this distinction in the amount of the bounties allowed to be raised by the local authorities in the two cases — two hundred dollars under past calls, and only one hundred on any call made, or- to be made, after the 20th of January, 1864? The reason to me seems plain. The cases provided for in the sixth section, limiting the amount to be raised by the local authorities to $100, are intended to be the same as those for which a State bounty of $100 is provided in the eighth section, thus making the aggregate of the State and local bounty, under the sixth and eighth sections, the same amount as in cases provided for under former calls in the fourth section. Under former calls, and the provisions of the fourth section, the local authorities are relied upon for whatever amount is to be raised, not exceeding $200; under the sixth. and eighth sections, the State raises one-half of this sum, and the local authorities are authorized to raise the balance, or so much of it as they may judge proper.

There was a very strong and controlling reason why the ■ Legislature should, in granting a bounty, make a distinction between the 300,000 men who had been called for in October, 1863, and the balance of the last 200,000 included in the order of February 1st, 1864. Arrangements had, it is fair to presume, been made in many, if not all, the sub-districts, for the raising of bounties to fill their respective quotas under the October call. The Governor, early in November, had issued his proclamation, calling for volunteers under it, and the military officers of the State had been active in encouraging enlistments. Those arrangements of the various townships and sub-districts, and the pledges given by them, would have reference to, and be limited in their operation and amounts by that call; and whatever sum had been fixed upon to be raised for that purpose, or which had been raised by loan or otherwise for that juu-pose, would still be applicable to the balance of the quota of the 300,000 men yet to be filled, after the 1st day of February, as well as before. If, therefore, the State were to give a bounty of 6100 each for the balance of such 300,000 yet to be furnished, the result would be that the aggregate ^ bounty received by the men enlisting to fill such balance would be greater than that to be received by the last 200,000 required under the call of February 1st, 1864.

I think, therefore, it is apparent from the face of the act, construed with reference to the policy of the State as evinced by its former legislation, and the history of the times, that the Legislature did intend to make the distinction claimed by the respondent, between the 300,000 men who had been called for in the preceding October, and the last 200,000 included in the order of February 1st, 1864; and that they construed that order as the Acting Assistant Provost Marshal General had incidentally done two days before, as in effect, an additional call for 200,000 men. It is clear from the .Governor’s proclamation of February - 11, 1864, calling for volunteers under this call of the President, - that such was his construction of the order and of the act, and such seems to have been the understanding and practical construction by tbe military authorities of the State.- We do not mean to say that practical construction would necessarily be binding upon the relator, who claims to have enlisted on the faith of the act, if the fair construction of the act were different; but as we think the fair construction of. the act is in accordance with this practical construction, we think the relator is not entitled to the State bounty of §100; and the motion for a mandamus must be denied.

Campbell J.:

As I concur entirely in the views of the statute expressed . by .my brother Christiancy, I reserve my opinion upon the question how far the practical construction by the military authorities of the calls for troops can be ‘reviewed.

Martin Ch. J.

dissenting:

I^cannot concur with my brethren in the disposition of this motion.

By the act of February 5, 1864, it. is provided that, “There shall be paid from the war fund of this State a uniform State bounty of one hundred dollars to each person below the rank of comissioned officer, who may* hereafter enlist and be mustered into the military or naval service of the United States, and who shall be credited on the quota of this State, or any military district thereof, under any call or order of the. President, or military authorities of the United States, or of this 'State, made or issued since the first day of January, A. ’ D., 1864: Provided, That none of the bounties provided for in this act shall hereafter be paid to any volunteer, being a resident of this State at the time of enlisting, who shall be credited to any sub-district, township or ward other than that in which he is enrolled, or, if not enrolled, where he resided at the time of enlistment.” — Session Laws 1864, p. 58. §8.

This provision of the act is, in my mmd, entirely independent of any of the provisions of the act intended to authorize or legalize the action of municipal corporations. ít is a voluntary, free offer of the State of a bounty to the soldier. A call was made by President Lincoln on the 1st of February, 1864, for 500,000 men. Under this call the relator enlisted and was mustered in in the month of March following. What effect this call may have had upon previous calls, or how it would be interpreted by the War Department, or any officer of the General Government, is immaterial, for the State did not base its action upon any such foundation.

Lomane knew of this law, and acted upon his faith in the promise, which I regard as unqualified and independent of any other provision of the act.

I think he should be entitled to the bounty, and the writ should be issued.


author: Cooley J.:

text:
    Perrin M. Smith v. Margaret J. Smith and Others.

      Chancery orders — what errors in, cannot he waived. — An order in Chancery will be reversed, on appeal, by this Court, for errors which affect prejudicially the rights of infants, or go to the jurisdiction of the Court to make the order, even though no objection be made by tho parties to the order for such errors. They cannot be waived by the consent of parties.

      Application for surplus money after mortgage sale — who entitled to notice. — Where an application is made for the surplus money after satisfaction of a decree of foreclosure, all the parties to the foreclosure suit are entitled to notice, in order that they may appear and contest the right of the applicant, and assert their own; and an order for payment of such money, without notice to the parties, or an appearance by them, is erroneous, and will be reversed.
    The surplus money remaining in Court, upon a sale under a decree of foreclosure, after satisfying the decree, is personal* estate; and if the owner of the equity of redemption dies subsequent to the sale, his personal representatives should be made parties to a petition for such surplus.

      Surplus money —who not entitled to. — Where the mortgagee of lands had obtainod a decree of foreclosure, by virtue of which the property had been sold, and, being also a judgment creditor of the mortgagor, had an execution levy on the mortgaged premises —to which, however, the mortgagor had no title at the time of the levy — it was held, that he was not entitled to an order for the surplus money remaining in Court after satisfaction of the decree, even though the mortgagor, during Jthe pendency of the foreclosure suit, to which he was a party, and prior to the decree and sale therounder, had become, the owner of the equity of redemption.

      Dfants — Chancery order on admission of invalid. — A Chancery order granted on the admission of infants is erroneous, and will be reversed, on the ground that infants are incompetent to make such admission binding upon their rights.

      Costs —when should not be awarded against infants. — In a Chancery order affecU ing the rights of infants, where, to hind them, it was necessary to procure such order, and where nothing more has been done by them, or on their behalf, than to present to the Court such facts as show their rights in the-matter, costs should not he awarded against them.

      Beard April 29 and 30.

      Decided May 9.
    Appeal in Chancery from St. Joseph Circuit.

      Biley & Shipman, for complainant.

      Severns & Barnhart, for defendants.
   Cooley J.:

In tbis case, the question of the. validity of a deed of lands by a married woman directly to ber husband was argued as the sole question, but on an investigation of the record, we find that it is not in such shape that we can with propriety express our opinion upon that subject.

On the 4th day of March, 1859, Benjamin Smith, and Mary Ann Smith, Ms wife, executed to Perrin M. Smith a mortgage on certain lands in St. Joseph County, which mortgage he filed a bill in Chancery to foreclose at some time not mentioned, but which seems to have been after the death of the wife, as he mad.e her heirs at law defendants. To this bill Alexander H. Hicks, Heman H. Cole and James Crawford were also made parties, and as they were not mortgagors, w,e must understand — though the record of tbe foreclosure suit is not before us — that they were brought in as subsequent purchasers or incumbrancers. Decree having been entered in the 'foreclosure suit, a sale was made, March. 21, 1862, which realized a considerable amount more than was due on the decree.

The complainant in - the suit now files his petition, claiming this surplus, as a judgment creditor of Benjamin Smith. He shows a judgment rendered against Benjamin Smith, December 19, 1860, in favor of Kent, Lowber & Co., and by them assigned to him by virtue ■of an execution issued, upon which a levy was made on 'the mortgaged land, January 25, 1861 ; and the petition states that the record title to the land was, soon after said levy, in said Benjamin Smith. The petition avers that said levy is the next lien upon the land after the mortgage, and paramount to any other, and the- petitioner, ‘therefore, asks that the surplus moneys be paid over to him in satisfaction of his judgment.

It does not appear from the record that this petition ■was ever served upon any one, or any notice given of the intention to present it; but it was filed on the 3dv day of May, 1862, and two years afterward the heirs at law of Mary Ann Smith, who are infants, by their guardian, a<l litem, present their petition, claiming the ■surplus, as such heirs at law, and averring that said Mary Ann Smith was the owner of the land at the time of the giving of the mortgage, and that she remained such owner to the time of her death, unless she’ alienated the same by. a deed- of conveyance made directly to her husband, November 24, 1859, which deed 'they claim was void. Their petition also sets forth that Benjamin Smith has deceased since the said foreclosure 'sale was made.

Aside from the two petitions, nothing appears in the record except the decree or order thereon, which recites that, on hearing the said petitions, “and the facts in said petitions stated being admitted as true by the respective petitioners, and from which it appears that the said Perrin M. Smith is entitled to the said surplus,” the order thereupon proceeds to adjudge it to him.

It is very manifest that the order thus made cannot; be supported. Looking- first at the petition of Perrin M. Smith, it would appear that his foreclosure suit proceeded, upon the assumption that there were several- parties who, had, or might have, better rights to the surplus than .himself; for he makes the heirs of Mary Ann Smith parties defendant, which could only be on the supposition that she owned, or was interested in, the equity of redemption; and he also joins other parties, who were-only proper defendants if they had become purchasers or, incumbrancers subsequent to the mortgage. All of these parties were entitled to notice of the presentation of the petition, that1 they might contest the right of the petitioner, and assert any they might suppose to exist in themselves.' Benjamin Smith, if living, was also entitled-to notice, that he might show .that the judgment had been satisfied.

Moreover, aside from any question there may be, whether the rights of complainant under the levy were-not entirely cut off by the foreclosure sale, the petition fails to show any equity, since it does not appear from if that Benjamin Smith had any right in, or. claim to, the land' when the levy was made, but the petition, inferentially asserts the contrary. If a sale had taken place, 'and it had appeared that Benjamin Smith had. had s.ome claim to the land at the time! of the levy,, which was enlarged or perfected afterwards, a very dif-ferent question would be presented from that which is. now before us, where the execution creditor seeks to reach!, through a levy not followed by sale, the proceeds of lands not owned by his debtor when levied upon.

If we could look at the facts set up in the counter petition for the purpose of supplying the defects in the other, we should find that they do not aid the first petitioner. It is true that petition shows the equity of redemption to have been in Benjamin Smith at the time of the levy, if the deed of the wife to him was valid; but it also shows that Benjamin Smith had deceased since the sale, so that, if he was owner of the equity of redemption when the sale was made, the surplus moneys became personalty by the sale, (Bogert v. Furman, 10 Paige, 496; Sweezey v. Willis, 1 Bradf., 495,) and his personal representatives were entitled to be heard before the moneys were adjudged to the petitioner. It appears, therefore, that, of the three classes of persons who were entitled to dispute with the petitioner the right to this surplus, two — the subsequent purchasers or incumbrancers, and the representatives of Benjamin Smith — are not before the Court at all.

There is a still further difficulty — that the order made on the petitions was made solely on the admissions of the infant heirs, who were not only incompetent to ipake any admissions which would bind absent parties, but they could not even make any which should bind their own interests.

The order was also erroneous in awarding costs against the infants. Costs are usually awarded either because the party, in the assertion of an unfounded claim, has brought another into Court to defend his rights; or because, by the neglect to perform a legal ■duty, or by some wrongful act, he has compelled another to come into Court to assert his rights. The costs in this case were not caused by the infants. Their assent would not have enabled the appellees to obtain the surplus moneys without a resort to this proceeding; and if there was reasonable ground for believing that they were entitled to these moneys, it was the duty of whoever represented their interests to present the facts to the Court.

Although these errors in the order were not pointed out on tbe argument, yet, as they all either affect prejudicially tbe rights of infants, or go to the jurisdiction of the Court to make any such order, they cannot be waived by consent of these parties, and we cannot overlook them.

The order must be reversed, with costs to the appellants, and the cause remanded for further proceedings.

Christiancy and Campbell JJ. concurred.

Martin Ch. J. did not- sit in this case.


author: -Christianct J.:

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    Henry W. Newberry and Walter C. Newberry, Executors of Oliver Newberry, v. Charles C. Trowbridge and John Owen.

      Indorser's liability — proof that note was discounted for his benefit not admissible.— The indorser of a promissory note, for whose benefit the note is discounted, does not thereby incur any other liability than that of his indorsement; and, therefore, in an action by the assignees of a bank against the indorsers of a note, it was held not competent to show that a note, in renewal of which the one in suit was made, was discounted by the bank for the benefit of one of the indorsers, and that the money was paid to him.
    Held, also, in such case, that it was not competent for the plaintiffs to show that the note, in renewal of which the one in suit was given, was purchased of the maker thereof by one of the indorsers for a sum less than its face, as such evidence could have no tendency to fix the legal liability of the indorser to pay the note.

      Receiver's sale of note — what was said to be due not evidence. — In a suit upon a promissory note purchased at a receiver’s sale, evidence by defendant, to show what was stated to be- due on it at the time of such sale, is not admissible.

      Sale of note pending suit — set off. — Where, in a suit by the assignees of a bank, against the indorsers of a promissory note past due when assigned, the note, pending suit, became the property of another, it was held that the suit did not thereby abate, but might be prosecuted for the benefit of such purchaser, and that the note was subject to any set off which could have been made against it in an action by the bank itself.

      Set off by defendant of individual claim after death of co-defendant. — And where in such case, pending suit, one of the defendants died, and the survivor held a certificate signed by one of the plaintiffs as acting assignee of the bank, certifying that he had deposited a certain sum with tho assignees, and that the same. constituted a claim in liis favor against the assets of the bank, it was held that the amount due on such certificates was proper matter of set off in favor of such defendant.

      Indorser — 'tender by¡ in depreciated bank bills —its effect. —& tender by the indorsor of a note, of the sum due thereon in depreciated bank bills, without explanation, is, in legal effect, an offer of compromise, and not of paymont, and cannot operate as a waiver of notice, or an unqualified acknowledgment of liability by him.

      Indorser — part payment by, in depreciated bank bills — its effect. — The mere fact of part payment of a promissory note by an indorser in depreciated bank bills, will not have the effect of an unconditional acknowledgment of liability to pay the whole.

      Indorser — when his knowledge of defective notice must be shown. — Nor will proof of part payment by an indorser,|in any case, have such effect, where it appears that the notice of protest was insufficient to bind him, without further showing that, at the time of such payment, the indorser had' knowledge that due notico had not been given.

      Heard April 11 and 12.

      Decided May 9.
    Error to Wayne Circuit.
    The facts are sufficiently stated in the opinion.

      Newberry & Pond and G. Y. N. Lothrop, for plaintiffs in error:
    1. The testimony tending to show Oliver Newberry’s ownership of, and dealings in regard to a noté, in payment or renewal of which the note sought to be recovered upon ■ appears to have been given, was wholly irrelevant.
    The issue was, whether the proper steps had been taken to fix the liability of Oliver Newberry and Benjamin B. Kercheval, as indorsers of the last-mentioned note; and if not, whether said Newberry and Kercheval had, by their subsequent conduct, waived any laches in that respect.
    Being thus irrelevant and immaterial, unless it can be seen that said testimony could not by any possibility have injured the defendants, its admission was fatally erroneous.— Underhill v. N. Y. & H. R. R. R. Co., 21 Barb., 489; Myers v. Malcolm, 7 Hill, 292; F & M. Bank v. Whinfield, 24 Wend., 420; Clark v. Vorce, 19 Wend., 232.

      2. The seventh assignment of error is well taken. The testimony offered was admissible, as tending to show the amount due on said note.
    It had already appeared that ■ O’Flynn, (or Mrs. O’Flynn,) was the real party in interest in this suit, and the owner and holder of said note; that he (or she,) claimed title through said Conant, into whose possession said note had come as receiver in a suit to which the plaintiffs were parties defendant, and who had sold the same to O’Flynn. Conant, whilst so in possession of said note, had authority,, and it was his duty, to receive payments thereon. His statement, or admission, therefore, made whilst he so held said note, as to the amount claimed to be due and unpaid thereon, would, as against himself and those claiming- under him, be prima facie evidence of the extent of the- amount so due and unpaid.
    3. The ninth assignment of error is based upon the rejection of the evidence offered to establish a claim by way of set off.
    The ground of the rejection of this testimony was, that there were several defendants, and that the debt proposed to be set off was not due to them all jointly. — Subdiv. 6 of §4213, Compiled Laws.

    It' is true that the suit was originally against several defendants, but upon the death óf Kercheval it ceased to be so.- — -§4212, §4213, Compiled Laws. And the .notice of set off was filed by leave of Court after his death.
    4. The tender made in depreciated bank bills was a conditional offer to pay, or an offer to pay in a particular 'manner, and not having been accepted, was not evidence of a waiver of the laches in giving notice, oían admission of liability. — Taylor v. Jones, 2 Camp., 106, note; Standage, et al., v. Creighton, 5 C. & P., 406; 1 Parsons on Notes and Bills, 600; Crain v. Colwell, 8 Johns., 384; Agan v. McManus, 11 Johns., 180; Sice v.

      Cunningham, 1 Cow., 397; Barkalow v. Johnson, 16 N. J, 397.
    5. Where it affirmatively appears that legal notice was. not given, mere proof of a payment is not sufficient to constitute a waiver. Plaintiffs, in such case, are bound to go further, and to show that the payment was made with full knowledge of the laches. — 1 Parsons on Bills and Notes, 601; Byles on Bills, (Sherwood,) 237, note p.; Trimble v. Thorne, 16 Johns., 152; Harrs v. Allnut, 12 La., 465; Bank v. Harper, 12 Rob., (La.,) 231.
    6. When the legal title and actual possession of a promissory note is transferred by the plaintiff, pending a suit thereon, such suit can no longer be sustained.— Lee v. Jilson, 9 Conn., 94; Curtis v. Bemis, 26 Conn., 1.

      C. I. Walker and JD. C. Bolbrook, for defendants in error:
    1. Defendants offered to prove that, at the time of the receiver’s . sale, the amount due on the note was stated to be $3,064 and that said O’Flynn bought said note with, notice thereof— i. e., with notice of the statement.
    It will be noticed that the offer does not show who made the statement, for what purpose it was made, or whether it was true or false.
    This testimony was entirely immaterial. The defendants- were not parties to that case, and if the amount stated to have been due had been overrated, they would not be estopped from showing what was the real amount due. Nor can they claim any benefit from such statement. Estoppels are mutual.
    2. The defendant’s claims in set off were rightly rejected.
    1st. They were claims against the bank, not - against the plaintiff.
    2d. There is no * pretence that they were claims against the bank at the time of the assignment, by the bank, or of the commencement of this suit.

      8. There are several exceptions relating to the charge, and the refusals to charge, the jury as to the effect of the written evidence of George C. Bates, as to a tender made to the bank in full of this note, in the ■ bills of the bank. - .
    The Court refused to charge that such tender, or offer to pay, by Newberry, was not in law' a waiver of notice of dishonor, or an acknowledgment of his liability on said note, and did charge that the evidence of Bates did not tend to .prove that such offer was by way of compromise, or that it was intended as such by Newberry; but that, if made with a knowledge of the facts, and to the full amount of the note, it tended to prove an unqualified acknowledgment of his liability, and that they were not at liberty to consider such tender as an attempt to ■compromise said claim without some evidence to that effect.
    We submit that both, the refusal and the charge, were right.
    Compromise is “ an amicable agreement between parties in controversy to settle their difficulties by mutual concessions; a mutual agreement and adjustment;” — Webster. Tender is an adversary proceeding, made not by way of agreement and adjustment, bpt for the .protection of the real or supposed' rights of the person making it. The proceeding in this case was very clearly of the latter kind, and the testimony has not the slightest tendency to prove an attempt at negotiation or compromise.
    4. The only further assignment of error, (the twelfth,) is .to the charge made by the Court as to the effect to be given to the testimony of A: II. Sibley.
    Sibley testified in relation to the payment of $1,245, made February 1st, 1842. He testifies that he spoke to Newberry about the payment of this note, claiming that, inasmuch as he had procured the note to be discounted, and received the money upon it, he was bound in honor-to take it up, and that he now recollected of the payment upon this note, that it was paid in Bank of ‘Michigan, by Mr. Newberry himself, after the bank had failed.
    The plaintiff failed to prove the proper service of notice on Newberry.
    But it is well settled that, in such cases, the offer or promise of the endorser to pay, a distinct acknowledgment of his liability, or his making- a part payment, is of itself presumptive evidence of demand and notice, and dispenses with any further evidence. — 1 Parson on Notes and Pills, 612-15, 623-5; Tebbetts v. Dowd, 23 Wend., 379; Margetson v. Aitken, 3 C. & P., 338; Dixon v. Elliott, 5 C. & P., 437; Croxon v. Worthen, 5 M. & W., 5; Sherer v. Easton Bank, 33 Penn., 140; Loose v. Loose, 36 Penn., 538.
    Nor does the fact that the plaintiff attempted to prove the service of notice, and failed, make any difference.— Jones v. O'Brien, 26 E. L. & Eq., 283; Sherer v. Easton Bank, 33 Penn., 140.
    There being no evidence in the case to rebut the presumption of a proper service of the notice, the Court rightfully charged the jury that, if they believed the testimony of Sibley as to such payment, then the plaintiff was entitled to such a verdict. — 1 Parson's Notes, 622; Bank of U. S. v. Lyman, 20 Vt., 666; Sherer v. Easton Bank, 33 Penn., 134.
    But, even if this was a case where the notice ox* service thereof was clearly defective, and proved to be so, we insist that the charge was rightfully made.
    It is true that, in such case, it is laid down that the facts relied upon to prove a waiver must have occurred with a knowledge of the laches or a defective notice. — 1 Parsons on Notes, 101-2.-

    If the notice was .defective, both in form, and in.
      the mode- of service, still tliey were defects that must have come to the knowledge of the defendants.
    The notice to Kercheval was deposited in the post office; that to Newberry, if not served personally, was also deposited in the post office. It will be presumed that these notices were received by the persons to whom directed. — 1 Parsons on Notes,- 619, n. 626; 1 Greenleafs Eh., 340; 1 Edwards’ Phillips, 645.
    This being- the case, the- defect, both of form and, mode of service,' are, by this presumption, brought home to both of the parties. This presumption is strengthened by the lapse of time that took place between the dishonor of the note and the facts relied upon to prove that waiver, and a simple promise or acknowledgment of liability or part payment, under such circumstances, is prima facie, sufficient proof of waiver without any direct proof of knowledge. — 1 Parsons on Notes, 600-2 and 3; Byles on Bills, 237; Loose v. Loose, 36 Penn., 538; Levy v. Peters, 9 S. & R., 125; Walker v. Laverty, 6 Munf., 487; Pate v. McClure, 4 Rand., 171; Zacharie v. Kirk, 14 La. An., 433; Curtiss v. Martin, 20 Ill., 557; Ladd v. Kenney, 2 N. H., 340; Cram v. Sherburne, 14 Me., 48; Jones v. O'Brien, 26 L. & E., 283.
    But, even if it was necessary to prove a knowledge of these laches on the part, of defendants, there was ample evidence on that point to go to the jury; and taking the whole charge together, we submit that they must have understood that they were to find such knowledge.
    Charges substantially like this have been sustained in, Sherer v. Easton Bank, 33 Penn., 140; Harvey v. Troupe, 23 Miss., 538. See, also, Zacharie v. Kirk, 14 La. An., 433; Levy v. Peters, [9 S. & R., 128.
   -Christianct J.:

This suit was brought in June, 1843, by the defendants in error, and Robert Stewart, since deceased, (who were assignees of the Bank of Michigan,) against Oliver Newberry and Benjamin B. Kercheval. The declaration charged them as indorsers of a promissory note made by S. T. Jamieson, dated May 13, 1837, for $3,736, payable to the order of the defendants, at the Bank of Michigan, sixty days after the date thereof. The declaration states the indorsement as having been made by the defendants directly to the plaintiffs.

. To this declaration the defendants pleaded the general issue, and gave a notice, which • is in no way material to ‘the present case.

In 1853, after the death of Stewart, one of the plaintiffs, whose death was suggested, an amended declaration was filed by Trowbridge and Owen, the surviving plaintiffs, which did not materially vary from the first} except that it contained a count against, the defendants, as joint and several makers, and the common counts. But neither of these additional counts become material, as it is admitted there was no evidence applicable to them.

To this amended declaration the defendants pleaded severally the general issue.

In this stage of the case, Kercheval died, and his death being properly suggested, Newberry, by leave of the Court, Sept. 18, 1855, gave notice of sot off under his plea of the general issue to the amended declaration.

The case was tried in 1855, and a judgment obtained by the plaintiffs, which was reversed by the Supremo Court, and a new trial ordered. — 4 Mich., 391.

Newberry, the surviving defendant, having died, the suit was revived against his executors, the j>resent de- . fendants, in March, 1861.

The case, was afterwards twice tried, resulting in a disagreement of the jury.

Upon the fourth trial, November, 1863, a verdict was obtained by the plaintiffs, and judgment rendered thereon, which is now brought to this Court by writ of error, ' upon exceptions to certain rulings of the Court lipón the admission and rejection of evidence, and the giving and refusing instructions to the jury.

The plaintiffs having, on the trial, given evidence tending to show the making of said note, its indorsement by said Newberry and' Kercheval, and that the same had been negotiated to and received by the Bank of Michigan, at or about the time of its date, in renewal of a note then held by the bank, made by said S. T. Jamieson, payable to the order of P. B. Schemer-horn, and indorsed by said Schemerhorn, one Tetterman, and said Oliver Newberry, and which last named note had been before that time discounted by said bank for said Newberry; then sought further to show, by E. P. Hastings, that the last named note, (payable to the order of Schemerhorn,) was discounted by the bank for said Oliver Newberry, and the money paid to him, or placed to his credit; that, not being paid at maturity, the bank, at the request of Newberry, received the note in suit in renewal of the former note. This evidence was objected to by the defendants, but admitted by the Court, and exception taken; and this presents the question raised by the first and second, assignments of error. It is manifest that this testimony was wholly unnecessary,, and -could have no legitimate tendency to alter or affect, the legal rights or relations of the parties.

Whether Newberry got the note discounted for his-own benefit, or he and Kercheval were mere accommodation indorsers for Jamieson, the liability of the indorsers to the bank would be the same, and the same steps by way of demand and notice would be necessary to hold, them to their liability as indorsers; for, by accepting the note of Jamieson thus indorsed, the bank consented to look to their legal liability as indorsers only. No moral obligation of these indorsers, or either of them, which did not create a legal liability as indorsers, could render them liable on this paper. A valid consideration was implied from the indorsement, and was not in dispute. The evidence could not, therefore, have been offered for .this purpose: it was useless and irrelevant for the establishment of any fact bearing upon Newberry’s legal liability, and its admission ' erroneous as matter of law. And as the case comes before us upon exceptions and writ of error, and Ave are not at liberty to weigh the evidence, the error will be fatal to the judgment, unless we can clearly see that it could not possibly have had any tendency to mislead the jury to the prejudice of the -defendants. We do not think, from the nature of the -ease, we are authorized to say it could have had no such tendency. The only tendency which it could 'have had was to induce in the minds of the jury a belief of a moral obligation on the part of Newberry beyond the obligation which Avas imposed by the indorsement. And the Court having admitted the evidence in the face of the defendant’s objection, the jury might very naturally infer that, in the opinion of the Court, they Avere at liberty to hold the defendants legally liable in this suit upon this moral obligation. It does not appear that the Judge, by his charge or otherwise, said anything to the jury calculated to counteract this inference; but, on the contrary, the action of the Court in admitting, against the defendant’s objection, the deposition of Bates, showing a purchase by Newberry of the first note of Jamieson at a discount did much to strengthen this erroneous inference in the minds of the jury. The admission of this last evidence, which forms the basis of the third and fourth assignments of error, was still more clearly erroneous. This was the same note which the testimony of Hastings had been allowed to shoAv was discounted for Newberry, and the money paid to him, and in renewal of which the note in suit was stated to have been received by the Bank. It is too clear to admit of argument, that the legal rights and relations of New-berry and the bank would be precisely, the same in respect to both these notes, whether he purchased the first note for the full amount appearing upon its face, or gave but a single dollar for it. This testimony was not merely irrelevant, as having no legal tendency to establish Newberry’s liability as indorser of the note in suit, blit its natural and only ■ tendency — when taken in connection witffi the irrelevant testimony of Hastings, already alluded to — was to produce in the minds of the jury the conviction that, in the opinion of the Court, they were at liberty to hold the defendants liable in this suit, upon a- supposed moral obligation of Newberry to take care of the paper, and of the note given upon its renewal, because he had purchased -it at less than its face; in other' words, that they were at liberty to base a verdict against the defendants upon a supposed moral •obligation, outside of and beyond his legal liability as indorser — thus substantially changing his liability from that •of a mere indorser to that of maker of the paper.

The grounds upon which the counsel for the defendants in error claim that the above evidence of Hastings and Bates was admissible are that, upon the evidence, there was a question whether the, notice of dishonor shown to have been given to . the indorsers was sufficient, and as the plaintiffs relied upon subsequent payment or acknowledgment of liability as proof that due notice had been • given or waived, the evidence was admissible, as tending to show the relations of New-berry to the whole transaction, and that his obligations of a moral character would,_tend to show that he would, and did, acknowledge his liability, and make payment thereon. But the only relation of Newberry to the transaction, which it was competent to show, were his legal relations, and if the proof of the moral obligations ■could have the tendency to. prove that he acknowledged his liability, or made payment, we do not see why — as suggested by the counsel for the plaintiffs in error — it would not be equally competent to go into proof off Newberry’s moral character, to show whether he was a conscientious man, or in the habit of recognizing merely moral obligations of this kind, or otherwise.

The fifth and sixth assignments of error are not relied upon.

We see no error in the rejection of the testimony off Conant, • offered by the defendants to prove that the amount due upon the note at the time of the receiver’s sale “was stated to be $3,064 ■&$,” as relied upon under the seventh assignment • of error. The proposition does not state that the offer was to show that this statement was made by the receiver; but, waiving this, we cannot see how it would be admissible, unless offered in connection with proof of some payment made to the receiver, -and for the purpose of showing such payments. The purchaser of a note at a receiver’s sale would not ordinarily be bound by the receiver’s calculation or statement of the amount due, but is entitled to recover whatever may be due upon it, whether it be more or less than estimated by the receiver. Here was no offer to show that anything had been paid to the receiver, and no pretence of ’ such payments.

The eighth assignment of error is not relied upon.

The ninth error is assigned upon the rejection by the Court of two certificates signed by C. C. Trowbridge, (one of the plaintiffs,) as “acting assignee” of the bank — one dated June 13, 1844, for $139, and the other June 14, 1845, for $200- — -stating that Newberry had deposited these sums with the assignees of the bank in evidence of debt against the bank, “which sum constitutes a claim in favor of himself, or order, against the assets of said bank, subject to the condition, of the assignment, and drawing interest from date.” The plaintiffs had already shown, by their own testimony, that the note on which the action was brought had been assigned by the bank, with, its other property, to all the original plaintiffs — Trowbridge, Stewart and Owen — which assignment seems to have been made about the 10th day of January, 1842, long after the note became due; and, therefore, though the note was declared upon as having been indorsed directly by Newberry and Kereheval to the plaintiffs, yet the plaintiffs ■ having' themselves shown that it was owned by the bank at maturity, and by the bank assigned to the plaintiffs, and the particular. provisions of. the assignment do not appear, the assignees must be regarded as standing only in the right of the bank; and the subsequent holders,, apparently claiming through them, and prosecuting the suit in their names, occupy no better position, and must be bound by their acts while the paper remained in their hands. We see no reason why these certificates, should not have been admitted • in set off, unless it is to be found in the fact that the amounts were not due to both the original defendants jointly, but to Newberry, the survivor, alone. We do not think they could be excluded on this ground. After the death of Kereheval, and its suggestion upon the record, Newberry’s liability was all that could be enforced' by the suit. The cause of action, originally joint, survived against him alone, and the suit, to all practical purposes, so far -became a several suit against him alone. The executors or administrators of Kereheval could not have been joined; and upon the death of Newberry, the cause of action survived only against his executors.— Comp. L., §4212 and §4213.

- In an action against a surviving partner, a debt which became due from himself separately, before or after the death of his partner, may be included. — 2 T. R., 476; 6 T. R., 582. And. when a survivor is sued for Ms own separate debt, he may set off a debt due Mm as surviving partner. — 5 T. R., 493; 1 Esp., 47; Hogg’s Executor’s v. Ashe, 1 Hayw., 477; Lewis v. Culbertson, 11 Serg. R., 48; 1 Chitty’s Pl., (7 Am. Ed.,) 57 and 603.

The remaining errors are assigned upon the charges of the Court, and refusals to charge. The tenth, eleventh and thirteenth assignments raise substantially the same .question. The charges and refusals, (to which these assignments relate,) go upon the admitted hypothesis that the notice of dishonor, (of the note,) given to Newberry was deficient both in form and the manner of service, and raise' the question of the effect of a tender "or offer of Newberry to pay the note in question, some years after its dishonor, in the bills' of the bank, which had in the meantime failed. The evidence of Bates tended to show that, after the failure of the bank, and not far from the time of the assignment, he, as the attorney of Newberry, and in pursuance of his ■advice to Newberry, tendered or offered to pay to the proper officers of the bank, or the person or persons representing the bank, the full amount of the note in the bills of the bank, which was refused. There appears to have been no express declaration accompanying the offer, whether it was intended to be by way of compromise or payment. There was evidence, however, tending to show that the bills of the bank were largely at a discount — how much does not appear — and this evidence was uncontradicted. It Avas not denied by the defendants below, nor has it been questioned here, that if Newberry, with knowledge of the laches of the holder in • giving notice, or of the defect in the notice and in its service, had unconditionally promised to pay, or tendered in. payment, the amount of the note in cash, such an acknowledgment of liability would have been binding Biit it was insisted that an unaccepted offer to pay in the bills of the bank after its failure, and when largely at a discount, could not, of itself, operate as a waiver of notice, or an unqualified acknowledgment of a liability to pay, but should rather be treated as an offer to compromise.

The effect of tho charge of the Court, and his refusal to' charge, was to instruct the jury not only that such an offer' might be considered ás a circumstance tending to show an intention of Newberry to acknowledge his liability, but that such an offer was, of itself, equivalent in legal effect to an unconditional offer to pay the full amount of the note in cash — which, under the circumstances, was neither more nor less than an instruction that such an offer, if found true, must be treated as an unconditional recognition of a liability to pay in cash the full amount of the note.

We have not been able to discover any principle upon which such a charge can be sustained. It does not appear what was the value of the bills offered or tendered. It may have been but one dollar on the hundred, or more or less. Newberry, without any intention of acknowledging any liability whatever, and with a determination to -resist - payment if not accepted, may have chosen to pay in these bills rather than go to the expense of defending a suit, or rather than incur the displeasure of the officers of the bank, or the men who represented the bank. Had the offer been accepted,, it would have been binding to the extent of 'the value of the bills offered; but not being accepted, it could, of itself, without reference to some particular circumstances under which, ' or some peculiar terms in which, it was made, have no legal effect whatever as an acknowledgment of any liability. — Standage v. Creighton, 5 C. & P., 406; Note to Taylor v. Jones, 2 Camp., 106; Crain v. Colwell, 8 John., 384; Agan v. McManus, 11 John., 180; Sice v. Cunningham, 1 Cow., 397; Barkalow v. Johnson, 1 Harrison, 397; 1 Parsons on Bills and Notes, 600.

The Court charged that there was no evidence tending to prove that the offer of the hills, as testified to by Bates, was intended to be by way of compromise. We think the only legal effect of a naked offer of this kind, standing alone, is that of an offer of compromise, and not of -payment; and if accepted, it would have operated as a compromise, by way rather of set off, or accord and satisfaction, than of payment. We 'do not mean to say that an offer of this kind might not be made under such special circumstances, or in such language, as might have a tendency to prove an intention to recognize a liability to pay the note; but there must be something beyond the naked offer — something from which the jury shall be satisfied that the party making the offer did, in fact, intend thereby to acknowledge Ms liability to pay the note in cash.

The twelfth assignment of error relates to the effect of part payment by Newberry in bills of the. bank after its failure. The plaintiffs had attempted to prove notice, and had succeeded only in showing that, at the proper time for giving a notice of dishonor, a notice had been made out by the notary in the form which was held insufficient, in Platt v. Drake, 1 Doug., (Mich.,) 296, and again in the present case, as decided in 4 Mich.) 391, to hold the indorser, (and having once been decided in this case, must continue to govern it, though we do not hold it to be law in other cases); and the evidence of the notary tended strongly to show that this notice, instead of being served personally upon Newberry, who resided in the city of Detroit, or left at his residence or place of business, had been inadvertently left at the post office, (a mode of service held to be insufficient in Nevins v. The Bank of Lansingburgh, 10 Mich., 547,) and no other notice was attempted to be shown. Sibley had testified to the payment by. Newberry of $1,250 in the bills of the bank after its failure, and after the assignment to the plaintiffs. The Court, at the request of the plaintiffs below, charged the jury that if they believed the testimony of Sibley as to the ,payment on the note, then the plaintiffs were entitled to recover. This was giving to the mere fact of part payment in the depreciated bills of the bank, the absolute legal effect of an, unconditional recognition of a liability to pay the whole note in cash, without any reference to the question whether Newberry thereby intended to recognize such liability. Nothing was left to the jury b.ut the single fact whether such payment had been made. This charge eonnot be sustained. The naked fact of part payment in the depreciated paper of the bank cannot, of itself, have any greater tendency to prove the intention of recognizing such liability than the offer to pay the whole in the same kind of paper. Both stand upon the same principle, so far as regards the acknowledgment of liability; and what we have already said upon this point, in reference to the offer to pay, is equally applicable to the payment of the part in the same kind of paper.

This might dispose of this assignment of error, but as there is to be a new trial, and there is another important ground upon which wo think this point of the charge erroneous, we think it best to indicate our opinion upon it. This is the question whether it was necessary to show that Newberry, at the time of the payment — if that should be found to have been intended as an acknowledgment of liability- — -knew the defects in the notice or its service, or the facts constituting the laches.

~We think- the law to be well settled upon sound principle, and by the general current of authority, (though there áre some cases, to the contrary,) that, -when there is ho evidence of any notice to the indorsers — whether the plaintiff has omitted all attempt to jorove it, or has made the attempt and failed — a subsequent recognition of liability is presumptive evidence, in the nature of an implied admission, that due notice had been given. This is upon the principle that the indorsér, looking to his own interest, would not be likely to acknowledge such liability unless satisfied that he had been duly notified, and was legally bound. But when it affirmatively appears that the notice which was given, or which the plaintiff claims to have been given, was defective and insufficient, this excludes all ground for the presumption of due notice, which, in the absence of any proof of notice, might otherwise have arisen from such subsequent recognition. And when, as in the present case, the plaintiff attempts to prove due notice, and dnly succeeds in proving a notice made at the proper time and by a proper party, but defective in form or the mode of service, and proves no other, this excludes the idea that another notice was given at the proper time, by the proper person, and served in a proper manner. Else why resort only to the proof of the defective one.

In such a ease, therefore, the evidence of part payment, or an offer to pay, in the bills of the bank — though the jury should be satisfied the indorser intended thereby to recognize his liability — would authorize no presumption that due notice had been given; and the evidence could only be admissible for the purpose of showing an intentional waiver by the indorser of Ms right to insist upon notice, and his consent to be bound without it. To hold the indorser liable on this ground, the plaintiff must not only show the subsequent acknowledgment of Ms liability, but he must • also, by proper evidence, satisfy the jury that it was made Avith a full knowledge thaf due notice had not been given, or of the facts constituting the laches. Positive or direct evidence of knowledge would not, of course, be necessary; but, like the fact of knowledge in other cases, it may be inferred from any circumstances ■ which fairly authorize the inference as one of fact. The charge of the Court in reference to the part payment entirely ignored this question of knowledge, and took it from the jury.

We think the Court properly refused to charge, as requested by defendants’ counsel, “That if the note had been sold, .and the legal title to the same, since the commencement of this suit, and before this trial, passed from the plaintiffs and vested in Cornelius O’Flynn, and by him transferred to Mrs. O’Flynn, the plaintiffs could not recover.”

The legal title to the note appears, to have been in the plaintiffs when the suit was commenced, and this being negotiable paper, we see no good reason 'why the suit might not be prosecuted by them for the benefit of the subsequent owner, or by such owner in the names of these plaintiffs, so long as the proceedings are in -good faith, and the defendants are thereby deprived of no just defence. — Austin v. Burchard, 31 Vt., 589; Guernsey v. Burns, 25 Wend., 411; Bradford v. Buckname, 8 Fair., (12 Me.,) 15; 2 Pars. on B. & N., 437 to 443.

The judgment must be reversed, with eostsj and a new -trial awarded.

Coolet J. concurred.

Campbell J. did not sit in this case, having been counsel therein.

Martin Ch. J. dissented.


author: Cixristianct J.:

text:
      The Second National Bank of Detroit v. Theodore Williams.

      Check unaccepted, not an assignment. — Whore one in extremis drew his check upon the hank, with directions to the payee to defray the funeral expenses of the drawer out of it, and to pay the balance to hie heirs, and the check was not accepted by the bank at the death of the drawer, it was held that the cheek did not operate as an assignment of the fund, and that the bank was not liable upon it to the payee.

      Donatio causa mortis. — No mere contract, liability or obligation of the donor can be the subject of a gift causa mortis; and, therefore, an unaccepted bank check, which, if not paid, merely creates a liability on the part of the drawer, is not valid as a gift by him causa mortis.

      Heard May 5 and 6.

      Decided May 13.
    Error to Wayne Circuit.
    Assumpsit. In addition to tlie common counts, tbe declaration contained a special count, setting- forth a deposit with the defendant below of $600 by one John B. Simson, a check drawn by him in favor of the plaintiff - upon the defendant for that amount, and that said check was an assignment of said sum to the plaintiff, the consequent liability of the defendant,, its promise to pay and a breach thereof. Trial by jury.
    On tbe trial, the plaintiff put in evidence the bank book of John B. Simson, which was admitted to be correct; whereby it appeared that said Simson deposited with the defendant, on the '/tli day of September, 1864, the sum of $600, and that the same had not been drawn out.
    The plaintiff then introduced as a witness Charles Simson, who testified that he ivas a son of said John B. Simson, and on being shown a check in the words and figures following, viz.:

      “No. Detroit, Oct 11, 1864. Second Nationax Bank oe Detroit. Pay to Theodore Williams, or order, six hundred dollars. liis $600. - John B. + Simson. mark. Witnesses, Eugene D. Webber,
    Charles Simson.”
    Indorsed, “ Theo. Williams.”
    Testified that he was one of the witnesses to said check; that said check was signed and executed on Thursday or Friday,, and. that his father died on the Sunday following; that on the 11th day of October, 1864, his father was in very poor health, and did not expect to live; that he saw the paper signed, did not see it drawn; that his father tried to sign it, but was too weak to do so.; that plaintiff then wrote his father’s name, and his father made his mark; that his father was possessed of his mind, and knew what he was about; that witness did not know what the object of making the check was.
    Alfred Griffith was then introduced as a witness, on behalf of plaintiff, and testified that he was a son-in-law of John B. Simson; that said Simson was very low between the time .of drawing the check and his death; that witness ■ asked said Simson if he had drawn the check, and said Simson replied' he had; that said Simson was clear in his mind, and apjieared to know wbaJ he was about, and to understand the matter well. The witness further explained the object in giving the check, as follows: Mr. Simson expected to die; he had confidence in the plaintiff,' and drew the check for $600, being all, or nearly all, his property, with the understanding that the plaintiff should draw the money, pay the funeral expenses, and pay the rest over to Simson’s family, and thus save the expense of an administration on the estate.

      Andrew McLellan was then introduced as a witness on behalf of plaintiff, and 'testified that he was teller in Y. J. Scott’s banking office; that plaintiff left said check at their office for collection; that witness presented said check on the 14th day of October, 1864, at defendant’s counter for payment, and payment was refused on the ground that defendants were not satisfied of the genuineness of the signature of said John B. Simson, and that said check was thereupon returned to plaintiff.
    The indorsement of the check was admitted to be in the hand-writing of plaintiff. The plaintiff then offered to read said check in evidence, to which defendants objected, but the Court overruled the objection, and permitted it to be read to the jury. And thereupon the plaintiff reáted.
    The defendants then introduced as a witness C. M. Davison, who testified that he was defendants’ cashier; that said check was presented for payment at defendants’ counter, by Y. J. Scott’s teller, and payment was refused, on the ground that the defendants were not satisfied of the genuineness of the signature of said John B. Simson; that plaintiff presented said check for payment, and witness told him that he would let one of the defendants’ clerks go with plaintiff to Simson’s residence, and if said Simson would say that said check was all right, defendant would pay it; that plaintiff assented to said arrangement, and said he would call in again in a few moments;; that plaintiff did not call in again, as he had agreed to;, that witness afteiwards saiv said plaintiff, and asked him why he had not called in again, and that plaintiff replied that he had concluded not to do so; that he should have to sue; that afterwards, and after the death of said John B. Simson, the plaintiff and a daughter of said John B. Simson came to the bank with said check, and requested payment of it, and one of them — the witness could not. remember which — said that said John B. Simson wished to give the money to said daughter, and had made the cheek payable to plaintiff for the' purpose of having him get the money and paying it to her, and that this was done to save the expense and trouble of making a will, and of having administration upon his estate; and that the money was needed to pay funeral expenses; that witness replied he would be willing to pay it if he was satisfied of the genuineness of- the signature of John B. 'Simson, but unless he was, he had no authority to pay it; but if plaintiff would give a bond of indemnity to the bank, the bank would pay the check; plaintiff refused to do so, and the check was not paid.
    And thereupon the Court charged the jury that upon the law of the case, there being no dispute as to the facts, the plaintiff was entitled to recover as assignee of the $600 deposited with defendants.
    To this charge the defendants excepted,
    The defendants’ counsel then requested the Court to charge the jury that the drawing of said check by said Simson, payable to the order of said plaintiff, did not, Without being accepted by the bank, operate as an assignment of the money deposited by said-John B. Simson with defendants; which 'charge the Court refused to give, and defendants excepted.
    The defendants further asked the Court to charge the jury that there was no sufficient consideration for drawing the check to enable the plaintiff to sustain the action. The Court refused so to charge, and the defendants excepted.
    .^.nd the jury returned a verdict for plaintiff for $605 ffa, being the $600 and interest.

      Jerome <& Swift, for plaintiff in error:
    The verdict of the jury, under the charge of the Court below,, can only be sustained on the ground of an assignment by way of gift inter vivos, or as a donatio

      causa mortis, and that the cheek itself operated as such assignment.
    The only assignment, if any there was, was the check itself. That, however, so far as it operated as a transfer, took effect at once; and inasmuch as the money was to remain. Simson’s till his .death, it seems inconsistent with the rules of construction of instruments to give an effect to the check which its terms do not import.
    In Bradford v. Fox, 39 Barb., 204, it is said that if a check drawn upon a banker 'is not paid; the money still remains the property of the drawer.
    In Bellamy v. Majoribanks, 8 Eng. L. & Eq., 513 the Judge who gives the opinion of the Court says The lawful holder of the check “ could not sue the drawee, unless the drawee had accepted the check.”
    And the following authorities show that neither checks, nor other like instruments, unless accepted, operate as an assignment of the money in the hands of the drawee.— Spalding v. Lesley, 2 Speer, 754; Seargent v. Seward, 31 Vt., 509; Williams v. Everett, 14 East., 582; Yates v. Bell, 3 B. & Ald., 643; Watson v. Loflland., 4 Harr., 60; Sheppard v. State, 3 Gill., 289; Wheeler v. Stone, 4 Gill., 38; Dykers v. Leather Man'f's Bank, 11 Paige, 612; Luff v. Pope, 5 Hill, 413; 7 Hill, 577; Cowperthwaite v. Sheffield, 3 N. Y., 243; Winter v. Drury, 5 N. Y. 525; Chapman v. White, 6 N. Y., 412; N. Y. & Va. Bank v. Gibson, 5 Duer, 574; Ketchum v. Stevens, 6 Duer, 463.
    The requisites of a valid donatio causa mortis are set forth in Story's Equity Jurisprudence, §607a. In §607c it is said, “ a mere chose in action not subsisting in any specific instrument cannot pass by a donatio causa mortis." This rule is fatal to considering the gift in this case as such donation.
    In Dole v. Lincoln, 31 Maine, 422, it is said: “ Donations causa mortis are not favored in law, but are admitted with the greatest caution."

      See, also, the remarks of the Court in Raymond v. Sellick, 10 Conn., 480; Holley v. Adams, 16 Vt., 206.
    In Meach v. Meach, 24 Vt., 598, Judge Redfield says, that any chose in action, if it be the contract or promise of some other person than the donor, and do not constitute any obligation upon the donor, may by mere delivery constitute a good gift mortis causa.

    Upon this ground the donor’s own promissory notes are invalid as gifts causa mortis. — Raymond v. Sellick, 10 Conn., 480; Holley v. Adams, 16 Vt., 206.
    So his check. — Harris v. Clark, 3 N. Y., 94; Tate v. Hilbert, 2 Ves., 121; Thompson v. Dorsey, 4 Md. Ch., 149.

      D. Bishop, for defendant in error:
    The question presented may be- stated thus: Did the giving of the check in question on the banker, for the whole sum on deposit, directing the money to be paid to the payee of the check, operate in law as an assignment of the money to such payee? We claim it did,, and that it is the same, in legal effect, as if the instrument had read as follows:
    “ For value received, I hereby assign to Theodore Williams the §600 I have on deposit in the Second National Bank of Detroit, with full power to demand and receive the same, and I direct said money to be paid 'to him.”
    Such an assignment would have authorized the assignee to bring a suit for the money in his own name, under the act of 1863, and the books seem clearly to sustain the proposition that such a check as this, for the whole sum on deposit, is an assignment of' the money to the payee of the check.
    A bill of exchange, for the amount of the fund on deposit drawn, upon, has the effect of an assignment to. the payee of the sum, for which it is drawn. — Chitty on Bills, 1, 2; Edwards on Bills, 44; 2 Parsons on Bills, 57; 1 B. & P., 286; 1 H. Bl., 602; 1 Vesey, Sr., 330; 3 Term R., 174; 1 Caines R., 363; 3 J. R., 71; 12 J. R., 277; Griffith v. Reed, 21 Wend., 502; 9 Mass., 337;. 10 Mass., 319; 12 Mass., 206; 1 McCord, 106; 12 Rich. L., 518; 5 Wheat., 285; 1 Wash. C. C., 424-6; 2 Seld., 417; 20 Pick., 17; 3 Greenl. R., 346; 12 Cal, 92, cited 20 U. S. D., 157, §51; 14 Cal, 403, cited 21 U. S. D., 97, §62, §63; 1 Hill, 583.

    From custom, and from a universal practice among bankers and depositors, there results between them an implied agreement to the. following effect :
    The banker will take, and be responsible for the money deposited, in consideration of its use; the depositor may draw his checks at any time, for the whole or any part of the money, and the banker will pay such checks on presentation, to the payee or hearer, whoever that may he.

    One part of this bargain is a valid consideration 'for •the other, and it is binding as a whole. It need not be, as it never or rarely is, in writing. By this implied, agreement the banker obligates himself to pay the checks ■of the depositor to the payee or bearer of them, whoever that may be, even though the checks are but for a piart of the fund, and a fortiori if they are 'for the whole. This mode of doing business is well understood among all business men the world over, and it is illustrated in the every-day practice of bankers. As a result of the understanding and agreement, and as a result of the authorities, the payee or hearer of a check .may, on refusal of payment, bring his action for the money in his own name against the hanker. The common counts are also the proper form of remedy in such a case.
    Among other, cases relied on as sustaining this doctrine in principle, before the point came before the Courts directly, the following may be, cited: 2 Wm. Blk., 1269; 1 B. & P., 296; 1 John. Cases, 205; 3 John. R., 82; 12 John. R., 276; 17 Mass., 400, 575; 2 Metc., 381; 1 Cranch, 436; 2 Denio, 45; 3 Term, 182.
    The first reported case where this doctrine is brought directly before the Courts, is Fogarties v. State Bank, decided, with Ambler v. Same, in 1860, by the Court of Appeals of South Carolina. The Court, in these cases, in an exhaustive opinion, going over the whole ground, come square up to our proposition, and decide directly that the holder of an unaccepted check, though drawn generally, and for but part of the fund on deposit, may recover upon it in his own name, in an action for money had and received, brought by him against the banker.— 12 Rich. L., 518. See, also, 24 Texas, 155, cited in 21 U. S. D., 96, §40, §41.
    A banker having funds of the drawer of a check in his hands, has no right to refuse payment on presentation of the check. To do so is clearly a wrong. — 2 Parsons on Bills, 60; 12 Rich. L., 528.
   Cixristianct J.:

. The counsel for the defendant in error — plaintiff below — insists .that the check of Simson, importing of itself a sufficient consideration, and being for the whole amount •of the money of the drawer on deposit in the bank, operated, as between the drawer and the payee, as an assignment to the latter of the money, or the drawer’s right to it; axxd as the drawex-, before giving the check, might have sustained an action against the bank for the amount, the payee, as assignee of the drawex-, may now maintain the action, under the Statute of 1863, authorizing the assigixee of a chose in action to sue in his own name. I do not think the question whether a •check can, in any case, operate as an assignment, by •.the drawer, of the money, or the drawer’s right to it, ,to the ' payee, can properly arise in the present case. If a check can ever have this effect, it can only be in those cases when it has been given for a valuable consideration. Here the whole tendency of the evidence was to show there was no valuable consideration to support an assignment. The consideration implied by the giving of the check cannot aid the plaintiff. Upon any theory of the case, it was competent to inquire into the real consideration, and the plaintiff, without waiting for the consideration to be attacked by the defendant, himself introduced evidence to show what the consideration actually, was. The whole tendency of this evidence, as well as that introduced by the defendant, was to show that the drawing of the check, and placing it in the hands of the plaintiff, was understood and intended by the drawer and the plaintiff as a substitute for. a testamentary disposition of this money by the drawer, to avoid the expenses of administration on his estate, and that there was no pecuniary or valuable consideration. The arrangement was clearly not such as to constitute a valid will; and as an intended substitute for a testamentary disposition, it must have been understood as in its nature revocable by the drawer at anytime prior to his death. And if the plaintiff, by the arrangement, was to do any act with reference to the check, or the money, previous to Simson’s death — which the evidence does not fairly tend to show — it could only 'have been as the agent of Simson, and not as trustee, or in his own right as a party having an interest.

’ If, on the other hand, as we think the testimony clearly tends to show, he was only to act in the matter after the death of Simson, appropriating the money first to the payment of funeral expenses, and the balance to be paid to the family, or some member of 'it; then, unless the delivery of the check can be sustained as a donatio causa mortis, no interest whatever is vested in the plaintiff, and the trust intended never took effect; but the check, with the whole arrangement, was revoked by Simson’s death, and the bank, after notice of the death of Simson, and of the arrangement upon which the check was given, could not have paid the check to the plaintiff without the risk of'being again called upon to pay an administrator upon .the estate.

Did, then, the . execution and delivery of the check constitute a valid donatio causa mortis ? Without acceptance by the bank, or some special undertaking on its part, we do not think the bank could be held liable upon a check, as such, to the payee. There is no privity of contract between the payee and the drawee; and if the money is not paid upon the check, the drawee is only accountable to the drawer. The payee does not take an unaccepted check, relying upon the credit of the drawee, but that of the drawer. We do not, therefore, concur in the opinion expressed in Fogarties v. State Bank, and Ambler v. Same, 12 Rich., (S. Car.,) R., 518, holding the drawee of an unaccepted check, liable to a suit by the payee.

The, drawer, therefore, in the present case was the only party who could have been held liable to the plaintiff, if any; and we think no- mere contract, liability or obligation of the donor can be recognized as the proper subject of a gift causa mortis. — See Story's Eq. Jur., §607a, §607c; Meach v. Meach, 24 Vt., 598; Raymond v. Sellick, 10 Conn., 480; Holley v. Adams, 16 Vt., 206; Harris v. Clark, 3 Comst., 94; Tate v. Hilbert, 2 Ves., Jr., 111; Thompson v. Dorsey, 4 Md. Ch. Decis., 149; Dole v. Lincoln, 31 Me., 422.

We see, therefore, no ground, which the evidence in this case tends to establish, upon which the plaintiff below was entitled to recover.

The judgment of the Circuit Court must be reversed, with costs to the plaintiff in error, and a new trial awarded.

The other Justices concurred.