261, 6 Am. Rep. 237, a broker buying stock on order from another broker, knowing or having reason to know that the latter is acting as an agent, cannot hold stock for such agent's debts; Freeman's Bank v. Nat. Tube Works, 151 Mass. 418, 21 Am. St. Rep. 464, 24 N. E. 779, an indorsement for "collection and credit" is restrictive; Douglas v. First Nat. Bank, 17 Minn. 40, where W. kept a deposit in the name of S., the bank was not authorized to charge up note held against S., unless misled by W.'s conduct, and relying upon deposit for payment of note; Odell v. Gray, 15 Mo. 343, denying right of holder to retain as against real owners, where it was not shown that credit was given on faith of note; Milliken v. Shapleigh, 36 Mo. 601, 88 Am. Dec. 174, where there was no mutual agreement, or previous dealings between bankers, and no advance made on faith of particular bills remitted for collection, the owner may recover; arguendo, in United States v. State Nat. Bank, 96 U. S. 35, 24 L. 648, the government cannot hold the money of an innocent party which has gone into its treasury through fraud of its agent; Stevenson v. Bank, 113 N. C. 487, 18 S. E. 696, where arrangements between banks was that each should remit daily for items collected, collecting bank had no right as against owner of paper sent for collection. Cited in the following valuable notes: 34 Am. Dec. 316, 4 Am. St. Rep. 203, 14 Am. St. Rep. 583.

Limited in Hackett v. Reynolds, etc., 114 Pa. St. 334, 6 Atl. 691, holding collecting bank liable to owner of note, where no advances. or credit was made to correspondent on faith of it; Blaine, etc. v. Bourne, etc., 11 R. I. 120, 23 Am. Rep. 430, paper sent only for collection remains the property of sender, as to all persons having notice.

16

6 How. 228-248, 12 L. 416, BEIN v. HEATH.

Husband and wife.- Where a wife mortgaged her property, and then sought relief in chancery upon the ground that the contract was void in consequence of her disability to bind herself for her husband's debts, under the laws of Louisiana, equity will not relieve as against a lender acting in good faith under assurances that the loan was for the exclusive use of the wife, pp. 239-248.

Cited and approved, Williams v. Paine, 169 U. S. 75, 42 L. 667, 18 S. Ct. 287, holding, where land was purchased under a power of attorney from a married woman, who received the purchase price, her heirs could not repudiate the sale on the ground that power of attorney was revoked by the war; Henry v. Ganthreaux, 32 La. Ann. 1113, holding married woman, examined and authorized under act of 1855, having obtained loan by fraudulent means, estopped from pleading incapacity. Approved in Belouguet v. Lanata, 13 La. Ann. 6, 7, in dissenting opinion, majority holding under reservation in marriage contract, wife could not mortgage dotal property to pay off mortgage debts, binding on the property, and incurred for her own use and benefit. Cited in note, 58 Am. Dec. 115.

6 How. 228–248

Notes on U. S. Reports.

638

Distinguished in Bisland v. Provosty, 14 La. Ann. 170, holding rules laid down in principal case govern only in chancery proceedings.

Equity pleading. It is no objection to a bill brought by a wife to set aside a contract, claimed to be void on account of her disability, that her husband is made a party. He acts only as her prochein ami, p. 239.

Cited and approved, Michan v. Wyatt, 21 Ala. 831, holding where bill concerns only the separate estate of wife, the decree is conclusive on her, although the husband was joined; Sawyers v. Baker, 72 Ala. 54, statutory provision that a married woman must sue, or be sued alone, where suit relates to her separate estate, has no reference to suits in equity.

Equity pleading.- Where the wife complains of the husband, and asks relief against him, she must use the name of some other person in prosecuting the suit; but where the acts of the husband are not complained of, he would seem to be the most suitable person to unite with her in the suit. This is a matter of practice within the discretion of the court, p. 240.

Cited in Barber v. Barber, 21 How. 589, 16 L. 228, holding a wife separated from husband by decree of divorce a mensa et thoro, may, by her best friend, sue for alimony decreed as an incident to such divorce; Douglas v. Butler, 6 Fed. 228, holding where wife's interest in suit is antagonistic to that of husband, she should file bill by next friend, and make husband defendant, Michan v. Wyatt, 21 Ala. 827, refusal by court of leave to strike out name of husband as complainant, and insert that of some person as next friend, was not error. Denied in Johnson v. Vail, 14 N. J. Eq. 426, holding husband cannot be joined in bill by wife for the protection of her separate property against husband's creditors.

Married women.- Where a feme covert, by the forms of law, has conveyed her property, she can avoid the effect of such conveyance only by showing mistake and fraud, p. 241. Approved in Callahan v. Patterson, 4 Tex. 68, 51 Am. Dec. 716, in dissenting opinion, majority holding privy examination of the wife indispensable to the conveyance of her separate property.

Husband and wife.- Under the law of Toro, a married woman could not bind herself as security for her husband, although the debt was converted to her benefit, p. 243.

Cited in Hollis v. François, 5 Tex. 204, 51 Am. Dec. 767, arguendo, in general discussion.

Married women.- Where a wife mortgaged property, and the question did not turn upon her doing so as her husband's surety, lender need not prove that loan inured to her separate use, but the

application of the money may be proved with a view of establishing collusion and fraud, p. 242.

Equity. The equitable powers of this court can never be exerted in behalf of one who has acted fraudulently, or who by deceit or any unfair means has gained an advantage, p. 247.

Cited and principle applied in Kitchen v. Rayburn, 19 Wall. 263, 22 L. 67, holding where a person sold land for certain bond fraudulently represented to be good, receiving at the same time other bonds to be held in trust, equity would not compel an execution of the trust. Approved in Belouguet v. Lanata, 13 La. Ann. 6, arguendo, in dissenting opinion.

Law protects a married woman, but it gives her no license to commit a fraud against the rights of an innocent party, p. 248.

Cited and applied in Cravens v. Booth, 8 Tex. 249, 58 Am. Dec. 113, holding voluntary acts and representations of a married woman, made to deceive, and deceiving others to their prejudice, are binding upon her; Chubb v. Johnson, 11 Tex. 477, refusing to rescind sale of separate property made by a married woman; Klein v. Glass,. 53 Tex. 44, a deed of trust by a married woman to secure future advances to be made to the husband, is valid.

Miscellaneous. Cited in Sparhawk v. Drexel, 12 Bank. Reg. 450, 22 Fed. Cas. 863, but not in point.

6 How. 248-260, 12 L. 425, BOWLING v. HARRISON.

Bills and notes. To fix the liability of indorser residing in same city as holder, notice must be personal, unless otherwise agreed, or unless by custom and usage of the bank at which the note is payable, the notice of non-payment was to be left at the post-office, p. 257.

Cited in Carolina Nat. Bank v. Wallace, 13 S. C. 352, 36 Am. Rep. 697, holding sufficiency of proof of usage of bank to dispense with personal notice to indorsers, was for the jury; Brown v. Bank of Abingdon, 85 Va. 98, 7 S. E. 359, indorser not charged by notice through post-office, without proof that he knew of bank's usage when he indorsed note; arguendo, in Lee v. Chillicothe Bank, 1 Biss. 331, F. C. 8,187, to the point that courts will take notice of usage concerning negotiable paper.

Bills and notes - Negotiable paper.- Personal notice of dishonor to indorser includes the leaving of a copy of the notice at indorser's dwelling or place of business, p. 257.

Cited and adopted in Westfall v. Farwell, 13 Wis. 513, holding statute requiring notary to "personally serve personally serve" notice includes ser

vice by leaving it at his residence or place of business.

Bills and notes.- Where the holder and the party to be notified of dishonor reside in the same city or town, notice should be given,

6 How. 248-260

Notes on U. S. Reports.

640

either verbally or in writing, or a written notice left at his dwelling or place of business, p. 257.

Cited and principle applied in Tyson v. Oliver, 43 Ala. 459, holding indorser, residing at place where bill was payable, entitled to personal notice; Bowling v. Arthur, 34 Miss. 56, in an action, growing out of the principal case, for damages against notary giving illegal notice of protest; Bushworth v. Moore, 36 N. H. 192, holding notary's certificate prima facie evidence that notice was given in accordance with above rule; Brown v. Bank of Abingdon, 85 Va. 98, 102, 7 S. E. 359, 361, indorser residing just outside corporate limits entitled to notice as above; arguendo, in Manchester Bank v. Fellows, 28 N. H. 310, holding notice, by mail, of non-payment of draft, given by bank in Boston to indorser in Manchester, sufficient. Cited in note, 38 Am. Dec. 608, 610.

Distinguished in Walters v. Brown, 15 Md. 292, 74 Am. Dec. 569, holding in a large commercial city, where parties live within the limits of a penny-post, notice put into the post-office in due time, is sufficient; Big Sandy Nat. Bank v. Chilton, 40 W. Va. 502, 503, 505, 21 S. E. 778, 779, the holder is only bound to give notice to his immediate indorser.

Bills and notes.- Where the holder and the party to be notified of dishonor do not reside in the same city or town, notice may be sent by mail to the nearest post-office, or such other place as may have been designated by the party on whom it is to be served, p. 258.

Cited and approved in Fahnestock v. Smith, 14 Iowa, 565, holding under State statute pernitting notice through post-office in all cases, notice mailed at town two miles from town where note was payable and indorser resided, not sufficient.

Bills and notes.-The holder of a bill or note, of the dishonor of which notice is to be given, is the person having possession of the paper, and making the demand, whether in his own right or as agent for another, p. 258.

Cited and applied in Fahnestock v. Smith, 14 Iowa, 565, holding where note was payable at bank in town where indorser resided, under statute permitting notice through post-office, notice must be mailed in that town; Manchester Bank v. Fellows, 28 N. H. 311, notice by mail of the non-payment of a draft given by collecting bank sufficient.

Denied in Philipe v. Harberlee, 45 Ala. 607, holding under Alabama decision, notice of protest through post-office sufficient, if holder resided out of State, notwithstanding his agent having note for collection resided in same city as indorser.·

Bills and notes.- Memorandum attached to a note, that the "third indorser lives in Vicksburg," is not evidence of an agreement

to receive notice through the post-office, and to dispense with personal notice, p. 259.

A usage, to be binding, should be definite, uniform and well known. It should be established by clear and satisfactory evidence, so that it may be justly presumed that the parties had reference to it in making their contract, p. 259.

Cited in Marye v. Strouse, 6 Sawy. 209, 5′ Fed. 488, holding custom of brokers to charge an arbitrary sum for telegrams, ought to be established by very satisfactory proof; Greenwich Ins. Co. v. Waterman, 54 Fed. 843, 6 U. S. App. 549, testimony of insurance broker as to authority of local agents to make binding preliminary contracts, based wholly on practice of his own office, is inadmissible.

Custom of a bank to give notice to certain indorsers through the post-office, cannot be inferred from equivocal and obscure expressions of witnesses, p. 259.

6 How. 260-278, 12 L. 430, SHEPPARD v. WILSON.

Bill of exceptions in Iowa taken after the trial is of no effect, pp. 274, 275.

Cited in Jamison v. Reid, 2 G. Greene, 397, where bills of exceptions were not drawn up until after adjournment of court, mandamus will not lie to compel the judge to alter them.

Bills of exceptions to be valid must be for matter excepted to at the trial. They need not be formally drawn and signed before the trial is at an end, if noted by the court at the time and afterwards, during the term, signed nunc pro tunc, as if actually reduced to writing during the trial, pp. 275, 276.

Cited and applied in Phelps v. Mayer, 15 How. 161, 14 L. 644, holding bill of exceptions taken after verdict, not properly before the appellate court; Suydam v. Williamson, 20 How. 439, 15 L. 982, a report of the judge presiding at trial is no part of the record, and cannot be considered on writ of error; Johnson v. Garber, 73 Fed. 525, 43 U. S. App. 107, exceptions not taken at trial cannot be considered by appellate court, although such commission was in conformity to a practice in trial court, but not embodied in a rule; Baltimore Build. Assn. v. Grant, 41 Md. 566, where exceptions were taken at trial, it is presumed that signing was done by consent of parties or in accordance with leave of court; Williams v. Ramsey, 52 Miss. 858, it was error to sign a bill of exceptions in vacation. Approved in Frank v. State, 40 Ala. 18, in dissenting opinion, majority holding where bill of exceptions set out all the evidence, and proof of venue did not appear, judgment should be reversed, although no specific objection to proof of venue was made; McBride v. U. P. Ry. Co., 3 Wyo. 255, 21 Pac. 690, majority refusing to dismiss bill of exceptions signed in vacation. Cited in McKown VOL. IV - 41