Van Valkenburg vs. The State. The indictmont charged one offense, and the evidence proved another and different offense, defined in another section of the statute. The case in 13 Ohio reaffirms the case of Van Valkenburg vs. The State of Ohio. It may be remarked that in the latter case Birchard, J., dissented, and, in a very able argument, contended that the offense proven being of a lower grade than, and embraced in, that charged, the defendant could be convicted under that indictment for the less offense. In the case of The United States vs. Nelson, the defendant was indicted for passing, uttering, and publishing a counterfeit United States fractional note, with intent to defraud the United States, and was convicted. The proof was, that a person employed by the government officials, as a detective for the purpose, applied to Nelson for counterfeit money, to be, by the detective, put in circulation. He sold to the detective $410 of spurious United States notes, for which he received, in good money and a promissory note, $133. When the testimony was offered, it was objected that, on a charge for passing proof of selling was inadmissible. but the objection was overruled, and that ruling formed the basis of a motion for a new trial. The Act of Congress of June, 1864, defines the offense to be to utter, pass, publish, or sell counterfeit United States notes, knowing them to be such, with intent to deceive or defraud. The indictment did not charge that defendant sold the notes. The court said: "The single question which I find it necessary to determine is, whether, under the statute last referred to, any delivery of a spurious note to another for value, for the object or purpose of being passed or put into circulation, as and for money is a passing within the meaning of the Act of Congress ;" and he determines the question in the affirmative. There, it will be observed, the defendant was charged with passing, uttering, and publishing, and the proof was that thedefendant sold to one who knew the notes to be counterfeit.

In the case of The State vs. Mitchell, 1 Baldwin, Mr. Justice Baldwin says: "The note is uttered when it is delivered for the purpose of being passed; when put off it is passed. In the case at bar the indictment does not use the word " pass, but alleges acts done by defendant which constitnte a passing, and employs words which, in their common acceptation, mean the same thing, and even technically are, in some respects, convertible terms. And when, in addition to the employment of those words, it alleges acts done which clearly constitute a passing of the forged draft, there can be no doubt of the sufficiency of the indictment; and, with due deference to the able counsel, we think that the cases in 11 and 13 Ohio are not applicable to the question involved in this discussion, and that the case of the United States vs. Nelson supports the conclusion we have reached. We do not mean to say that the words " "pass," "utter," and "publish," and the words " sell, exchange," and "deliver," may be used interchangeably, but that, where the latter words are used in connection with acts charged, which clearly constitute the offense imputed by the former words, the indictment is sufficient.

In support of these views we refer to United States vs. Batchelder, 2 Gallison, C. C. 15; State vs. Little, 1 Vt. 331; State vs. Wilkin, 17 Vt. 155; Peck vs. State, 2 Humph. (Tenn.), 78; State vs. Smith, 5 La. Ann. 340; State vs. Bullock, 13 Ala. 410; State vs. Pennington, 3 Head, 119.

Motion for rehearing overruled. All concur.

SUPREME COURT OF KANSAS.

July Term, 1877.

STIPULATIONS ALLOWING COSTS OF COLLECTION IN PROMISSORY NOTE.

A note otherwise negotiatiable is not rendered non-negotiable by the addition of a stipulation to pay costs of collecting including reasonable attorney's fees, if suit be instituted thereon.

A note payable in Topeka was, on August 5th, legally protested there, and notice thereof forwarded, by mail, by the banker who held the note for collection, to the owners at Fort Scott. Notice, when 1eceived, was sent by them, by mail, to the indorser at Atchison. It took a letter two days to go by mail from Topeka to Fort Scott, and two days to go in like manner from Fort Scott to Atchison. The indorser received the notice on August 10th. The 9th was Sunday. HELD, that a finding that a legal notice had been given must be sustained, although it appeared that there was a daily mail between Topeka and Atchison, and that all parties except the notary knew where the indorser resided, and although it was not shown at what exact hour the notice was deposited in the post-ortice at Topeka or Fort Scott, or received by the owners or indorser, or what hours the mail left Topeka or Fort Scott, or reached Fort Scott or Atchison.

BREWER, J., delivered the opinion of the court.
This was an action upon the following note:
$250.00.

TOPEKA, KAN., June 24, 1874.

'Thirty-nine days after date we promise to pay to the order of John Seaton, at the Topeka Bank and Savings Institution, Topeka, Kansas, two hundred and fifty dollars, with interest at twelve per cent. per annum, after due, until paid: also costs of collecting, including reasonable attorney's fees, if suiï be instituted on this note. Value received.

"Topeka Rolling Mill Co., by

R. D. COLDREN, President."

And the first question presented is, whether this was a negotiable note; and the claim is, that because of the stipulation for payment of costs of collection and attorney's fees, the amount due on the paper is uncertain, while both the common law and the statute define negotiable paper as drawn for a sum or sums of money certain." Story on Prom. Notes) § 1; Gen. Stats., § 1, p. 114. This claim cannot be sustained. The amount due at the matu

rity of the paper is certain, and the only uncertainty is in the amount which shall be collectable in case the maker defaults at the maturity of the paper in his promise to pay, and the holder is driven to the necessity of instituting a suit for collection, and then only as to the expenses of such collection. In the case of Sperry vs. Harr, 32 Iowa, 184, the stipulation in the note was: "If not paid when due, and suit is brought thereon, I hereby agree to pay collection and attorney's fees therefor," and the note was held to be negotiable. The Court say, in the opinion: "The agreement for the payment of attorney's fees in no sense increased the amount of money which was payable when the note fell due, and we are unable to see that it rendered that amount uncertain in the least degree. It simply imposed an additional liability in case suit should be brought, and such liability did not become absolute until an action, was instituted. This agreement relates rather to the remedy upon the note, if a legal remedy be pursued, to enforce its collection, than to the sum which the maker is bound to pay. It is not different in character from a cognovit, which, when attached to promissory notes, does not destroy their negotiability."

The same proposition is affirmed in Carr et al. vs. Louisville Bank Co., 11 Bush (Ky.), 180, in which the Court declares that "the reason for the rule, that the amonnt to be paid must be fixed and certain, is ¡that the paper is to become a substitute for money and this it cannot be unless it can be ascertained from it exactly how much money it represents. As long, therefore, as it remains a substitute for money, the amount which it entitles the holder to demand must be fixed and certain; but when it is past due it ceases to have that peculiar quality denominated negotiability, or to perform the office of money, and, hence, anything which only renders its amount uncertain after it has ceased to be a substitute for money, but which in no wise affected it until after it had performed its office, cannot prevent its becoming negotiable paper.” Deitrich vs. Baylie, 23 La. Ann. 767; Stoneman vs. Pyle, 35 Ind. 103. That it is no longer an open question in the latter State is evident from the cases of Wyant vs. Pottorf, 37 Ind. 512, and Walker vs. Wollen et al., 4 Cent. L. J. 248. See, also, Dinsmore vs. Duncan et al., 57 N. Y. 573, and Zimmerman vs. Anderson, 66 Penn. St. 411, in which last case a stipulation, waiving appraisement, stay of execution, etc., was held not to affect the negotiability of the paper; Bradley vs. Lilt. 4 Bissell, 473, in which the promise was to pay a certain amount with exchange, and the amount of the exchange not stated, and still it was held to be negotiable. And on the same point, see Smith vs. Kendall, 9 Mich. 241; Johnson vs. Frisbie, 15 id. 286; Leggett vs. Jones, 10 Wis. 34; Gutacap vs. Woulwise, 2 McLean, 581; contra Bank vs. Gay, 63 Mo. 33; Samstag vs. Contey et al., 5 Cent. L. J. 29. It seems to us, however, a just conclusion that paper, otherwise negotiable, is not rendered non-negotiable by a stipulation for the payment of costs of collection, including attorney fees, in case suit is brought thereon.

A second proposition of plaintiff in error is, that if the note be considered negotiable, notice of non-payment was not given within a reasonable time, so as to charge the indorser. The evidence upon this point showed that the protest was made August 5, 1874, and that the said John Seaton did not receive notice thereof until August 5, 1874; that said John Seaton resided in Atchison, Kansas, within the knowledge of all parties, except the notary at Topeka making protest, and was in business, and attended the post-office two or three times every day; that Atchison was and is the terminus of the Atchison, Topeka and Santa Fe railroad, a daily mail route, and is also the terminus of the Missouri Pacific, or Atlantic and Pacific railroad, a daily mail route ; that Topeka is situated on said Atchison, Topeka and Santa Fe railroad, fifty miles from Atchison; that the notice to said John Seaton was transmitted in the same envelope with the certificate of protest to the plaintiff at Fort Scott, where they resided, and said notice was sent, by the plaintiff, to the said John Seaton, and that it took two days from Fort Scott to Atchison, Kansas, and the said note was placed in a Topeka bank, at Topeka, Kansas, for collection and protest if not paid when due, and was in said bank when so due, and after protest was returned to plaintiffs at Fort Scott, Kansas.

No question is made upon the protest, providing the note was negotiable. Upon this we remark that it rests upon the party seeking to charge an indorser to prove a legal notice. No presumptions arise in his favor. It is a question

of fact, and the onus probandi is upon him. But, like any other question of fact, it is to be settled upon the testimony as it is given, and need not be proved beyond the possibility of mistake. A reasonable construction must be given to the testimony, and reasonable inferences may be drawn from it. And if, from this, it appears that legal notice was given, it will be sufficient, although it at the same time appears that further testimony more full, explicit, and definite, might possibly show an unwarrantable delay on the part of some one of the various parties. We are not to presume facts that are not proven, and we may rest upon the testimony given and any reasonable inferences to be drawn from it.

We remark again, that where the holder and the party to whom notice is to be given reside at different places, it is generally sufficient if notice is sent by the mail of the day next succeeding the day of dishonor. Williams vs. Smith, 2 E. & Ald. 501; Bray vs. Hadmen, 5 Maule & Selwyn, 68; Bank of Alexandria vs. Swan, 9 Peters, 33. It is sometimes said that it must go by the next practicable mail, and, on the other hand, where the mail of the next succeeding day starts at an unseasonable hour, it will be sufficient if it it is deposited in the post-office at any time on that day so as to be ready for the mail of the succeeding day. One statute says, "within a reasonable time." (Gen. Stat., p. 115, §7.) What is a reasonable time is generally a question of law for the courts. Byles on Bills, marginal, p. 322, and cases in note. (2 Greenl. on Ev., § 186.) We are not in this case advised as to the hour of the departure of the mail from Topeka for Fort Scott, or from Fort Scott for Atchison, and so no question of seasonableness and unseasonableness of such hour is before us. We can, then, only fall back upon the general rule that the notice must be deposited in the post-office in time for the mail of the next succeeding day. In other words, the protest having been on the 5th, the notice must have left Topeka in the mail of the 6th or at least been deposited in the post-office in time for such mail. Again: the holder of protested paper is not obliged to give notice to all prior parties-he may simply give notice to his immediate predecessor on the paper, and then such predecessor has the same time in which to notify his predecessor, and so on. So that, where there are many parties to dishonored paper, the first indorser may not receive notice of the dishonor for weeks or months thereafter, and that too, although all the parties reside in the same vicinity. In the case before us it is entirely immaterial whether the notary did or did not know of the residence of John Seaton, or whether said Seaton resided nearer to Topeka than Fort Scott, the residence of plaintiffs. Eagle Bank vs. Hathaway, 5 Metc. 212; Triplett vs. Hunt, 3 Dana, 128; Furmer vs. Rand, 4 Shep. 453; 3 Kent's Com. side p. 106, and note; 2 Greenl. on Ev., § 187; 1 Parsons on Notes and Bills, 513. And, again, a banker or agent to whom the paper has been transmitted, for the purpose of obtaining acceptance or payment, is, so far as the question of notice is concerned, to be considered as though he were the real holder and his principal a prior indorser. He may notify only his principal, and such principal has the same amount of time in which to give notice to prior parties. 1 Am. Lead. Cases, side p. 394; 2 Greenl. on Ev., § 187 a; Byles on Bills, side p. 224.

Now, applying these principles to the case, and it was proper for the notary at Topeka to forward notices to plaintiffs at Fort Scott, without mailing any

direetly to Seaton at Atchison, and whether he did or did not know of Seaton's place of residence. Notice leaving Topeka by the mail of the 6th would reach Fort Scott on the 7th; leaving Fort Scott on the 8th, would reach Atchison on the 9th. It was received by Seaton on the 10th. But the 9th was Sunday, so that he received it on the very day that he should have received it, going by the first mail and in the usual time. It is true that the testimony fails to disclose the exact hours at which the notice was mailed at Topeka, or at Fort Scott, or of the departure of the mails from those places, or of the arrival of the mails at Fort Scott or Atchison, or the receipt of the notice by plaintiffs or Seaton, and if all these facts were disclosed it might possibly appear that there was, either on the part of the notary at Topeka or of the plaintiffs at Fort Scott, such a delay in forwarding notice as would discharge the indorser. But upon the testimony as it stands we think there was no error in the finding that due diligence had been used in giving notice." 1 Parsons on Notes and Bills, 517, and cases cited in note.

A final proposition of the learned counsel for plaintiff in error is, that "neither the pleadings nor the proofs show any right of the plaintiffs below to recover against Mr. Seaton." The petition alleges that plaintiffs are the assignees in bankruptcy of the Fort Scott Coal and Mining Company; that they have full power and authority to prosecute this action; and that John Seaton indorsed and transferred to plaintiffs said note, giving copy of indorsement, and they are now the holders and owners thereof. No denial is made of these allegations. It is said by counsel that it does not appear that Seaton was ever indebted to the coal company, and that assignees in bankruptcy have no general power or authority to discount notes, etc., in behalf of their estates, and that no special authority from the Bankrupt Court is alleged. It is unnecessary to inquire whether the petition could not have been attacked by motion, or the authority of plaintiffs challenged by answer. Nothing of the kind was attempted. The defendant was content to go into trial upon the admission, by failure to deny that plaintiffs were the owners and holders of the paper, that they acquire title to it by indorsement to them, and that they had full authority to prosecute and maintain this action. As they could not be the owners and holders without having authority to receive title by the indorsement, and as it is not questioned but that, under some circumstances, they could legally take title to such paper, we think the general allegations of the petition, unchallenged by motion, answer or evidence, are sufficient to sustain the judgment.

Upon the whole record we see no error, and the judgment will be affirmed. Seaton plaintiff in error, vs. Scovill et al.