certificate of deposit, and he was entirely unknown to the bank. But after the transactions were concluded, and all the certificates had been paid and taken up by the bank, the said Peyser died; and a few months after his death, plaintiff, having then learned of these transactions, demanded of the defendant that it should pay all of said certificates over again to him; and the demand being refused, this action was commenced.

He made no proof at the trial that any of the money deposited by Peyser belonged to him (plaintiff), but he relied entirely on the mere fact that his name was in the certificates as depositor.

Upon these facts, I do not think that plaintiff was entitled to judgment, and therefore, I do not deem it necessary to discuss at length appellant's two points, that the complaint was not sufficient, and that the certificates were not admissible in evidence. I do not see how the principles of law, applicable to the peculiar qualities of negotiable paper, can be invoked in this case. Those principles apply, ordinarily, when the rights of sureties, indorsees, guarantors, and third persons generally, intervene. If the certificates invoked in this case had not contained the words "or order," or any equivalent words, the claim of plaintiff would not have been of any less legal value. If it be shown that a negotiable instrument made by A to B was without consideration, B cannot maintain an action upon it against A. Between the original parties, there is not often any difference whether a bailment or debt be evidenced by a simple receipt or a negotiable promise, except that in the latter case a consideration is presumed. If the money deposited by Peyser with defendant was not the money of plaintiff, upon what principle can he recover in this action? If he had obtained possession of the certificates before payment, and then had demanded payment, or had indorsed them to third parties, different questions might have arisen. The only parties to the contract

were the bank and Peyser; part of that contract was that the certificates should have the indorsement which had been written in the book of identification; they were returned with that indorsement; the money was paid, and the instruments were taken up and canceled; and thus the contract was executed and ended before there was any assertion to the claim — real or pretended — of plaintiff.

The only position having any strength which plaintiff could take is, that the certificates, being in form negotiable, import a consideration; that is, make a prima facie case of ownership of the money by plaintiff. Plaintiff, however, in his testimony, entirely repudiates the agency of Peyser in every part of the transaction. He says that he knew nothing about the certificates until after Peyser's death. But if Peyser was not plaintiff's agent in receiving the certificates, then the insertion of plaintiff's name therein goes for naught, and he can base no right thereon. On the other hand, if, notwithstanding his testimony, he seeks now to adopt and ratify the agency of Peyser, he must adopt the whole of that agency or none. (Story on Agency, sec. 250.) But suppose it be assumed that the money belonged to plaintiff, and was in the possession of Peyser, as his agent, how would the case stand then? It has been held in some cases that an original bailor may maintain detinue against a second bailee; but never, we apprehend, where the second bailee has safely redelivered the thing bailed, according to his contract, to the first bailee before notice and demand by the original bailor. (Story on Bailments, secs. 105-107.) If B, having the custody of money of A, intrusts it to C for temporary safe-keeping, and C returns it to B before any notice or demand by A, then A has no action, either ex contractu or ex delicto, against C, because C has neither broken a contract nor done a wrong.

However, I think that no case can be found where an

action has been successfully maintained directly upon a negotiable instrument not lost or destroyed before cancellation, when the plaintiff had never been in possession of the instrument, and had never known of its existence until after its existence had ended. Here the appellant was in possession of the instrument sued on at the time the action was commenced, claiming to own them as canceled obligations. And it has been directly held, in Crandall v. Schroeppel, 1 Hun, 557, that a party claiming to own a promissory note in the possession of another, who also claims to own it, cannot maintain action on it, and that the title to the note cannot be settled in such an action. Of course, this case differs widely from the common case where a man opens a general account with a bank, and a contract relation between the parties exists from the start. There the original party alone has the right to draw against the account, no matter by whom he may send deposits. It no doubt would have been more regular and safer if appellant had required Peyser to take the certificates in his own name, and dangerous complications might have arisen; but under the facts here, in my opinion, there is no phase of justice, and no rule of law, which compels appellant to repay these dead and canceled instruments.

PATERSON, J., dissenting. I dissent. The bank and Peyser had the right to enter into an agreement that the former should pay the money deposited by the latter to the order of "N. Honig, by S. A. Peyser," and this agreement was binding, unless the rights of innocent parties intervened. The instrument never was delivered to Honig. The fact that it is negotiable in form is immaterial. If plaintiff's right to recover depends upon the agency of Peyser, it is sufficient to say that the plaintiff must ratify or repudiate all of his acts. He cannot ratify the deposit and repudiate the indorsement. There is nothing to show that plaintiff owned the money de

posited by Peyser. At most, the plaintiff ought not to recover more than three hundred dollars.

Rehearing denied.

[No. 12243. In Bank.-September 27, 1887.]

T. W. PENDERGRASS, ADMINISTER, ETC., OF GEORGE T. THORNTON, DECEASED, PETITIONER, v. W. W. CROSS, JUDGE, etc., RESPONDENT.

PRACTICE-NEW TRIAL-SETTLEMENT OF STATEMENT-TIME FOR PRESENTATION OF ADOPTION OF AMENDMENTS.-Where a proposed statement on motion for a new trial is served on the attorney of the adverse party within the me limited by law, and the proposed amendments thereto are: opted by the moving party, the statement as amended may be presented to the judge or delivered to the clerk for settlement within any reasonable time thereafter. Under such circumstances, subdivision 3 of section 659 of the Code of Civil Procedure does not limit the time within which to present the statement for settlement.

APPLICATION for a writ of mandate to the Superior Court of Tulare County. The facts are stated in the opinion of the court.

Sidney V. Smith, for Petitioner.

Brown & Daggett, for Respondent.

The COURT.A judgment for defendant was entered in an action, wherein the petitioner was plaintiff, and one Burris was defendant. The plaintiff in that action gave notice of intention to move for a new trial, and served on defendant's attorney a draught statement of the case. Within statutory time the defendant served amendments to the statement, which were adopted by the plaintiff. We say the amendments were adopted, because the plaintiff did not indicate his non-adoption of them by serving notice that the statement and amendments would be presented to the judge for settlement, as prescribed in Code

as

of Civil Procedure, section 659. The plaintiff, having adopted the amendments, delivered the statement amended to the clerk, for the judge, to be settled (the judge being absent from the county), after the expiration of the time within which the statement and amendments must (upon notice) have been presented to the judge for settlement, or delivered to the clerk for the judge, had the amendments not been adopted by the plaintiff. The petitioner now prays that the judge be ordered by mandate to settle and certify the statement, the judge having refused to settle it.

Code of Civil Procedure, subdivision 3, section 659, does not limit the time within which a statement as amended when the amendments are adopted by the moving party shall be presented to the judge, or delivered to the clerk for settlement. It may be done in a reasonable time. The superior judge, as appears from his answer herein, decided that the time was reasonable, provided the law permits a statement as amended, where the amendments are adopted, to be presented for settlement or to be delivered to the clerk, for the judge, after the time within which the statement and amendments must be presented to the judge or delivered to the clerk, in cases where the amendments are not agreed to; but that the moving party had neglected "to pursue the proper steps to have said statement settled within the time required by law." The judge having so held that the statement was delivered to the clerk within a reasonable time, it was his duty to settle and certify the state

ment.

Let the writ issue.

MCKINSTRY, J., expressed no opinion.