deposit with the Central Savings more money than was necessary to pay those checks, and at times less money, but the Central Savings always met those obligations. The Central Savings kept a regular account with the Iron Mountain Bank, debtor and creditor, as it was bound to do, in regard to the transactions. The Central did not keep the funds furnished for that purpose separate and distinct from other funds, but merely passed the amount to the defendant's credit. When the Central Savings failed, or found that it was going to fail, and after banking hours it found that it had in its possession, beyond what was necessary to pay the checks of that day, some $12,000 or $15,000 on deposit of the Iron Mountain Bank, and it gave them notice to come in and withdraw these deposits, as they would not on the next day protect their checks in the clearing-house, they did come in, and after banking hours the Central Savings paid out, in money and checks, all the deposits of the Iron Mountain Bank.

It is claimed that this was a preference to one of the creditors of the Central Savings, and that the Iron Mountain knew that the Central Savings was in an insolvent and failing condition; and, conceding this knowledge, the only question before the court is whether that was a preference within the meaning of the statute. A very ingenious argument is made by the able counsel, Mr. Wood, to prove that this was some kind of a trust fund, a special trust deposit, which it was the duty of the bank to protect from its general creditors, and turn over to the cestui que trust, which was the Iron Mountain Bank.

I am not able to see from the facts in this case that the transaction possessed that character. I do not perceive any difference between the deposit and the deposit of any individual doing business with the Central. No special trust relation was created by this transaction in question. It does not follow, because a fund is placed in the hands of a man or corporation, that it can be followed everywhere under all circumstances. And in this particular case there was no means of following specifically the money which was placed by the Iron Mountain Bank in the hands of the Central Savings, because it went into the bank as other money did, was mingled with other money, and paid out in its ordinary business as other money was. There is another consideration which shows the relation between the parties. Why is it that a bank in this or any other city provides clerks to keep accounts, provides and furnishes you, perhaps without cost, a check-book, and goes to a great deal of trouble and expense and liability in securing you against loss by fire or thieves? Why is it that they do these things, and some go further, and pay interest for the privilege of having and holding your money? Is it because it becomes their money; because the moment you deposit it there it is their money, and that they may make money out of it in the regular banking business? In this case, the Central Savings not only consented to pay the checks of the Iron Mountain Bank which were drawn against it, but undertook, in addition to what an ordinary bank does, to take care of and protect its operations in the clearing-house. What was it to get for all this? According to the theory of the plaintiff's counsel, Mr. Wood, they were to hold this fund as a separate and distinct trust fund, with which they could make no operations, which they

could not loan out, and which they were to hold until exhausted by checks, and they were to do this for nothing.

The case of the Marine Bank vs. Fulton Bank, 2 Wall. 252, in which I had the honor of delivering the opinion of the Supreme Court, is in point, and is decisive of the case at bar. In that case, the Fulton Bank sent to the Marine Bank of Chicago two notes for collection. The currency at Chicago had at that time become deranged, and consisted exclusively of bills of Illinois banks. The Marine Bank sent a circular to its correspondents, informing them that, in the disturbed state of the currency, it would be impossible to continue remittances with the usual regularity, and that it would be compelled to place all funds received in payment of collections to the credit of its correspondents in such currency as was received in Chicago-bills of the Illinois stock banks -to be drawn for in like bills.

The notes were collected by the Marine Bank and placed to the credit of the Fulton Bank. About a year after the collection was made the New York Bank made a demand of payment from the Chicago Bank, which was refused, unless the former bank would accept the Illinois currency, now sunk fifty per cent. below par. The Marine Bank was engaged like other banks in receiving deposits, lending money, buying and selling exchange, and the money collected on the two notes in question was not retained in any separate or specific form. The court held that the proceeds of the notes, when collected, became the money of the collecting bank, and that the depreciation in the currency fell upon that bank. The court, in deciding that case, said:

“But the truth undoubtedly is, as stated in the second branch of the proposition, that both parties understood that, when the money was collected, plaintiff was to have credit with the defendant for the amount of the collections, and that the defendant would use the money in his business. Thus the defendant was guilty of no wrong in using the money, because it had become its owner. It was used by the bank in the same manner that it used the money deposited with it that day by city customers, and the relation between the two banks was the same as that between the Chicago bank and its city depositors. It would be a waste of argument to attempt to prove that this was a debtor and creditor relation."

In the case at bar I can not see that the relation between the banks was any other than one of ordinary deposit, by which the Central Savings became the debtor of the Iron Mountain Bank, and liable to pay its drafts through the clearing-house. It follows that the assignee is entitled to recover; and the judgment of the district court, being in conformity with these views, is affirmed.-Central Law Journal.

Abstract of Decisions.

NEW YORK COURT OF APPEALS.

LIABILITY OF MARRIED WOMEN.

The judgment was recovered for the amount of two promissory notes made by the defendant, who was, at that time and when the action was tried, a married woman. The complaint set out the notes, and claimed judgment for their amount, without any averment that the defendant was a married woman, or that the debt was a charge upon any separate estate owned by her. These omissions were unobjectionable, because the statute now permits a married woman to sue and be sued as a femme sole (Kier vs. Stables, 57 N. Y. 136). And to the defense of coverture anything can be shown, by way of answer, which will establish the binding validity of the contract in suit (Code, § 168). The evidence given by the defendant, as a witness on the trial, showed that she owned separate property, consisting of five houses and lots, and it was not absolute, or in fee. Upon her own testimony that may reasonably be assumed to have been the nature of her interest, and as the existence of such an interest at the time when the debts were contracted was not denied by her, it is to be presumed that she owned the property at that time. This presumption is strongly fortified by other evidence in the case. She testified that her property was mortgaged, and the plaintiff, together with her daughter, testified that the defendant desired the money for the loans for which the notes were given to pay interest upon the mortgages. According to the plaintiff's evidence the defendant applied personally to her for a loan of part of the amount, and at the time stated that she wanted the money to pay interest upon a mortgage. And the plaintiff's daughter stated that the defendant applied to her for money to pay interest upon her mortgages, and authorized her to get money for her at different times, and she applied to her mother and her brother, who made the other loan, and induced them to loan her money. This witness stated that the defendant desired the money, because interest owing to her was due; and both witnesses testified that the defendant referred to her real estate, in the conversation had with them, as rendering the loans applied for secure. The evidence of these witnesses, if reliable, showed that the money was desired for the protection of the defendant's charge upon it as security for the payment of the loans which might be procured. If this was true, the right of the plaintiff to recover was established, because it showed that the money in each instance was applied for and loaned for the advantage and improvement of her separate estate, and that the lenders might look to that security for repayment. Payment of interest upon outstanding mortgages, and in that way protecting the estate from foreclosure and sale, would be such an improvement of its condition as would render it chargeable with the money loaned and advanced for that purpose. And after

being equitably charged in that manner, the appropriation of the money, afterward, to another object by the borrower, could not change the rights or divest the security of the lender. The case was submitted to the jury upon the truth of this evidence, with the discretion that if they believed the defendant's statement, which was in conflict with it, they should find it in her favor. By their verdict, which was for the plaintiff, they must necessarily have believed the evidence given on her behalf. And that was sufficient to sustain her right to the recovery, because it was shown that the note given upon the loan made by her son had been indorsed and transferred to her before the action was commenced. The defendant borrowed the money for the benefit of her separate estate, and was sufficient to maintain the plaintiff's action upon the notes given for the debts (Scott vs. Conway, 58 N. Y. 619; Manhattan B. & M. Co. vs. Thompson, Id. 80; Boderie vs. Killeen, 53 Id. 93; Quassaic Nat. Bank vs. Waddell, 3 T. & C. Sup. Ct. 684). And any property owned by her, liable to execution if the judgment was reversed, could be appropriated to their payment (Maxon vs. Scott, 55 N. Y. 247).

After the money was loaned for the benefit of the defendant's separate estate, which was at that time referred to as the creditor's security for the debt, it was not necessary that they should see that it was applied to the purpose for which it was advanced. It was enough that the contract entered into, and the purpose for which the loans were made, complied with the requirements of the law governing the liability of the property of married women. For those reasons, the use of the money by the defendant, for the support of herself and her children, while living separately from her husband and their father, could not deprive the plaintiff of her right to satisfy the debt out of defendant's property. Neither could the husband's liability for necessaries exonerate her from liability for the payment of debts created for the benefit of her separate estate. The defendant testified that she had returned the money procured for the payment of interest on her mortgages, and her counsel requested the court to charge that, as her evidence on that subject was uncontradicted, they must find in her favor. The court declined to charge as requested, and the defendant's counsel excepted. She was in direct conflict, in her evidence in other respects, with that given by other witnesses, and interested as a party defendant. For those reasons the court could not properly hold that the jury were bound to believe her as to a fact not positively contradicted by the other witnesses. Indirectly, she was in conflict with them upon this circumstance, because the theory of the plaintiff's case, which the evidence decidedly tended to sustain, was that the notes were given, by the defendant, for the debts incurred for the improvement of her separate estate. The affidavit of the witness King, if important by way of contradicting her evidence upon the trial, could not be proved by a printed copy contained in a case on appeal from an order. If the contents of the paper had been important, the original should have been produced, or its absence properly accounted for, before a copy could be received. The copy, under the circumstances, was not admissible in evidence. The defendant's counsel asked leave to amend the answer, by adding the statement that the plaintiff was owing the defendant. That was refused, and the defendant's

counsel excepted. This was clearly no proper ground for an exception, for it was at most a matter purely within the discretion of the judge presiding at the trial. The leave applied for was also properly refused, because it was a new defense, not previously contained in the answer. For that reason it was not within the discretionary authority of the court as to amendments at the trial. Even if the verdict were against the evidence, that objection could not, for the first time, be taken on an appeal from the judgment. The rem. edy for that, if there had been any foundation for the position, was by way of a motion for a new trial upon a case at special term. This case was very justly disposed of at the trial, and the judgment should be affirmed with costs.

The Court of Appeals has affirmed the judgment, with costs.

Decided September 18, 1877. McVey vs. Cantrell—Daily Register.

Notes of Recent Decisions.

66

Insurance: waiver of condition of policy: condition that waiver must be indorsed on the policy: effect of parol waiver: principal and agent: agent's knowledge: how far principal affected.-A condition contained in an insurance policy, that no officer could waive the performance of a condition except by indorsement on the policy, will not prevent a general officer of the company from waiving a condition by parol, and the question is one of fact for the jury. By the terms of an insurance policy no agent or other person, excepting one of the general officers of the company (and then only by indorsement hereon made and signed by said officer) is authorized to waive, change, alter, or amend any condition or provision of this policy." The secretary having requested the plaintiff's adjuster to delay making out proofs of loss, pending estimates for rebuilding, thereby leading the insured to believe that proofs of loss would not be required within the time specified in the conditions, held, that it was a question of fact for the jury whether there was a waiver or not. The terms of a policy stipulated that "if any incumbrance exists on the insured property at the date of this policy, and the insured shall fail to notify the secretary of this company thereof in writing company shall not be liable for loss or damage under this policy." An undisclosed mortgage existed at the time of issuing the policy; subsequently, through the same agents, the mortgagee's interest was insured under another policy, and eight months after a renewal certificate of the first policy was issued. Both policies were signed by the president and secretary of the company, and countersigned by the agents. Held, that the above facts, if not conclusive, were yet sufficient to warrant the jury in finding that the defendant had knowledge of the incumbrance. Sup. Ct., Pennsylvania, Jan. 12, 1877. State Ins. Co. vs. Todd. (Week. Not. Cas.)

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