by the various cases cited by the author; but the facts in this case show no such duty, even if it could be said that a denial of Reynolds' alleged statement to Wilson would have been natural. Without affirming or denying that there are instances where proof of silence might be used to impeach a witness, we are of the opinion that this is not such a case. We have neither been cited to nor found a parallel case, where defendant's position has been sustained. And see 2 Bouv. Law Dict. p. 1245; Goldsby v. U. S., 160 U. S. 70. All of this testimony was likely to lead the jury to a wrong conclusion.

The court refused to instruct the jury that admissions of John Hutchison could not impair plaintiff's right to collect the bond. The request should have been given. He also refused to charge that the fact that William M. Thompson signed a bond of the Hutchison Manufacturing Company to secure a contract to build a mill is no evidence that the bank had notice or knowledge that the bond was invalid. This request also should have been given, as there is no testimony tending to show that at that time Thompson knew that the village authorities had anything to do with the transaction, or that he was acting for the bank in signing the bond.

Testimony was given as to statements made by Thompson at the time of the trial of this case, when the witness Wilson asked for further time upon the bond, in which conversation he said that he was president of the bank and was quite indifferent as to whether the village paid the bond or not, and that " we are amply secured here in Jackson by the Hutchison Company for this bond, and any arrangement you can make with the Hutchison Company is agreeable to us." The witness added:

"And then I talked with him a little further in regard to it, and drew him out on the question of their knowledge of the character of the bond, and he said that we-using the term 'we'-signed the guaranty or indemnity bond which the Hutchison Company gave the village of Mecosta."

Continuing, witness said:

6

"I had never seen that bond. I just took his word for it that we signed it,' as he said, and, said I, ' Then you were familiar or knew something about the character of these bonds?' and he says, 'Yes, we understood that they were bonus bonds.'"

This testimony came in under objection. We do not discover that defendant's counsel claim that this was admissible as substantive proof that the bank was not a bona fide purchaser for value, and we do not, therefore, decide whether the admissions of the president of the bank were admissible as such, especially in a case where the bank was not a party. It is claimed that the declaration was admissible as one made by a party to the suit, but we think that this overlooks the fact that Thompson sued in a representative capacity, and therefore could not bind the estate (which was the real plaintiff) by his declarations. Fish v. Morse, 8 Mich. 34; Clark v. Davis, 32 Mich. 154; Barry v. Davis, 33 Mich. 515; Durfee v. Abbott, 50 Mich. 283; White v. Ledyard, 48 Mich. 264; Grece v. Helm, 91 Mich. 457; Miner v. Raymond, 113 Mich. 28; Hudson v. Saginaw Circuit Judge, 114 Mich. 116 (47 L. R. A. 345). It is possible that this testimony was properly admissible as impeaching testimony. Mr. Thompson had testified that he had no knowledge of the circumstances under which the bonds were purchased, and substantially claimed ignorance as to whether or not the bank bought without notice and for value. A foundation having been laid, we think that this testimony was admissible for such a purpose.

The court charged the jury that

"Upon this question of knowledge, of notice, gentlemen, you are instructed that when the Jackson City Bank got the bond in question it would not be a bona fide holder, if at the time its president or cashier had any notice or knowledge of facts and circumstances which would naturally or reasonably lead an ordinarily careful and prudent man to make inquiry as to what the bond was given for."

This instruction was erroneous, for the reason that the test is, not whether the circumstances would naturally lead the ordinarily prudent man to investigate, but whether they were such as to make it bad faith not to do so. Brewster v. McCardel, 8 Wend. (N. Y.) 478; New York Iron Mine v. Citizens' Bank, 44 Mich. 353; Mace v. Kennedy, 68 Mich. 397; Stevens v. McLachlan, 120 Mich. 290; Glines v. State Sav. Bank, 132 Mich. 638. Again, if this instruction was intended to mean that knowledge by or notice to the officer purchasing the paper would bind the bank, it might not be erroneous; but it would be naturally interpreted as meaning that knowledge or notice to either of these officers would be notice to the bank, although the purchase was one made by one having neither such knowledge or notice. It would be a burden upon banks to hold that all of its officers must anticipate the offer to the bank of all doubtful paper of which he might have knowledge.

The judgment should be reversed, and a new trial ordered.

CARPENTER, MCALVAY, GRANT, MONTGOMERY, and OSTRANDER, JJ., concurred with HOOKER, J.

MOORE, C. J. (dissenting). This case has been here before, and is reported in 127 Mich. 522. A reference to the opinion of Justice HOOKER will do away with the need of making a long statement of facts here. Upon the last trial each party asked that a verdict be directed in its favor. The judge declined to do this, and submitted the case to the jury, which returned a verdict in favor of the defendant. The case is brought here by writ of

error.

The first assignment of error requiring attention relates to the admission of a bond given to the trustees of the village of Mecosta about the time the bond sued upon was issued. The objection was, first, the bond did not run to the village of Mecosta, and, second, that the fact that it

was signed by William M. Thompson could in no way bind the Jackson City Bank. It appeared, upon the other trial and in this trial, that the bond sued upon was issued as part of a bonus to the John Hutchison Manufacturing Company to induce it to build a flouring mill which that company was to own. It was the claim of the village that the company agreed to secure the performance of its agreement by the giving of a bond indorsed by the Jackson City Bank, and that in performance of this promise it presented to the village a bond dated September 18, 1893, signed by William M. Thompson as surety, who was then one of the directors of the bank and who is one of the plaintiffs in this suit. We think the testimony was competent as being part of the history of the transaction.

Error is assigned upon the cross-examination of William M. Thompson, tending to show his knowledge of the business in which the Hutchison Manufacturing Company was engaged and of its contract with the village of Mecosta. Counsel say that, though Mr. Thompson was at the time a director of the bank, he had no control or management of the bank, and that, if he had knowledge that the bond was issued to the Hutchison Manufacturing Company for an illegal consideration, it would not be competent as evidence that the bank had notice of the consideration of the bond; citing Shaw v. Clark, 49 Mich. 384. We do not so understand the case cited. It does hold that the knowledge possessed by Mr. Shaw, a director who took no part in managing the bank, was not notice to the bank of the defect; but it does not hold it was not competent to show what knowledge Mr. Shaw had. The record discloses this bank had but four directors. Suppose each of them had been offered as a witness on the part of plaintiffs. Would it not have been competent to show by cross-examination what knowledge he possessed of the want of consideration of the bond? To ask the question is to suggest its logical answer. Mr. Thompson was not only one of the four directors, but he was constantly employed in the bank, as a clerk most of the time; but in

the temporary absence of Mr. Newkirk, the cashier, and Mr. Thompson's father, the president of the bank, he did. such of their work as he could, though he did not pass upon the discounting of paper. Upon the death of his father he became president of the bank. We think the testimony was competent. It is said:

"The court court was requested to charge the jury that the fact that William M. Thompson signed a bond of the John Hutchison Manufacturing Company to secure a contract to build a mill at the village of Mecosta is no evidence that the Jackson City Bank had notice or knowledge that the bond upon which this suit was brought was invalid in the hands of the John Hutchison Manufacturing Company, which request was refused."

This is said to be error. If this evidence stood alone, there would be a good deal of force in this suggestion; but it did not. As already seen, it was competent testimony in the case. It was coupled with other testimony, and with circumstances which made it proper testimony to be considered in deciding whether the bank had established it was a bona fide holder of the bond.

The following question was put to Mr. Wilson, and error is assigned upon it:

"Q. Now, I ask you if Mr. Reynolds, in the presence of Mr. Hutchison-if Mr. Reynolds, secretary of the Hutchison Company, in the presence of Mr. Hutchisonstated to you that he understood that this bond was void, of no value, but that they took them in their business and took their chances, and that they had gone through the form of putting this into the hands of a bona fide or good faith holder, or this in substance ?"

Question was objected to by the counsel for plaintiffs as being irrelevant and incompetent, which objection was overruled, and counsel for the plaintiff excepted. Mr. Wilson was acting for the village. He sought an interview with Mr. Hutchison and Mr. Reynolds, the latter of whom had the same interest in and was clothed with the same powers in relation to the Hutchison Manufacturing Company possessed by Mr. Hutchison. The plaintiff call