IN RE ARMSTRONG.
pal thing." This is in accordance with the ruling ali! old as the time of Lord Coke, who says that "a thing corporeal cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal to a thing incorporeal, " (1 Co. Litt. 121b;) and so the supreme court of the United States, in Harria v. EUiott; held that, according to this rule, land cannot be appurtenant to land, and that a mere easement may, without express words, pass as an incident to the principal object of the grant. The case of Bank v. Ounningham, 22 N. E. Rep. 924, decided November 19, 1889, by the supreme court of Ohio, reported in volume 22, No. 25, of the Weekly Law Bulletin and Ohio Law Journal, and to appear in 46 Ohio St., is not in point. There it .was held that the sale of a part of the premises occupied by a building, the hall of which connected with the landing of a stairway leading from the street, and situate upon the other part of said premiser;;, and furnishing only means of access to the second Hoor of the building sold, passed to the purchaser a right to the use of the stairway as an easement appurtenant to the premises conveyed. 1n that case the stairway was an appurtenance, and, it was properly held. passed as an incident to the principal thing. But in this case the third rail is property of the same rank or kind as that conveyed in terms, and cannot be said to be an incident to the principal object of the grant; for, as the supreme court said in Harris v. Elliott, "it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries." In addition to this, as was stated in the former ruling, the conveyance by its terms is expressly limited to the two arms of the Y, and, although they cannot be operated without a connecting track, there is nothing; to prevent the petitioner from constructing such a track just outside the line of the right of way of the Ohio & Northwestern Company, or taking up the two arms, and removing them to another location. The former ruling is therefore affirmed.
(C4ircuit Court, S. D. OMo, W. D. January 18.1890.)
BANKS AND BANKING-DRAFTs-ACCEPTANCE.,
A telegram promising to pay draft.
certain draft constitutes an acceptance of the
Rev. St. tJ. S. § 5242, which invalidates all transfers of the notes, bonds, or bills of exchange of a national bank, after the commission of an act of insolvency, with a view to tlle preference of one creditor over another, does not prohibit a bank which bas in good faith accepted the draft of a national 1::lank the day before the latter's insolvency, and afterwards paid the same, from applying the proceeds of collections made by it, on paper in its hands belonging to the insolvent bank, to the payment of the draft, since its lien on such collections runa from the date of the aCceptance.
Petitio.n of David Armstrong, as receiver of the Fidelity National Bank, fol' leave tos.ettle controversies with the Seventh NatiEmal Bank of Phil-
·adelpllia. : Rev.St.U.S.§ 5242; ptovidesthat ((·all oltha notes, bondsl biUsof exchange, or other evidences of debt6wing' to any national bankitig association, or of deposits to its credit, * )* * made after the 'eOrnmission of an act of insol..ency,or in contemplafion thereof, made withltVielV to prevent the application, 'of its assets iIi the manner pres(:rlbed by this chapter, or with a·view to the preference of one creditor tob.nother, except in payment of its circulating !lhall be utterly nulljand void." ,Johrn. W. Herron, for'petitioner.
SAGE, J. The petition sets fO'l'thtl1at on the 18thdfl,yof June, 1887, the Fidelity National Bank issued to' Eugene Zimmermann a sight-draft for $1,5,000 on the Seventh NationallJank of Philadelphia. On the 20th daybfJune, Zimmermann offered this'draft to the Merqhants' National Bank of Cincinnati for deposit as cash. Before receiving it the Merchants' National Bank telegraphed to the Seventh Natiopal Bank as follows: . "CINCINNATI, June 20,1887. "To the 8e1JenthNatf,O'fI,al Bank of Philddelphia, Pa.: Will you pay draft of Fidelity National Bank on you for $15,000? Answer qUick. lOW. W. BROWN, Cashier Merchants' National Bank."
'l'he.Seventh National Bank answered as 'follows: "PHILADELPmA. June 20, 1887. "Merchants' National Bank, Oincinnati, Ohio: Will pay Fidelity NaL. D. BROWN, :president." tlollal.Bank draft for $15,000, at sight. Upon receipt of this dispatch, the Merchants' National Bank took said draft'as:eash, permitting Zimmermann to eheck againbt it, and forwarded it to,Philadelphia for payment. The Seventh National Bank paid the draft,June 22, 1887, after it had notice of the failure of the Fidelity National Bank, which occurred on the 21st of June, 1887. It is claimed by the receiver that he is entitled to the balance to the credit of the Fidelity National Bank on the books of the Seventh National Bank at the date of the failure of the Fidelity National Bank, in preference to the claim of the Seventh National Bank upon said 815,000 draft. After charging said draft to the Fidelity National Bank on the books of the Seventh National Bank, the former was indebted to the latter in the sum of 87,384.25. ,S,illce that time the Seventh National ;Bank has collected, on paper in its hands at the time of the failure of the Fidelity National Bank, 87 .28, and claims to hold the. same on aCQount of the balance due as above., The receiver submits to the court the question of the validity of his' to the proceeds of said collections, as against the claim of the National Bank of the right to apply said proceeds to the of its claim fot tllepaymel1t of said draft. The telegram from the Seventh National Bank to the Merchants' National Bank,. in answer to the telegram from the Merchants' National Bank, was a valid acceptance of the draft. No particular form is essentialto an accePtluice. It may be expressed in words, or implied from
the conduct of the drawee, and it may 'be verbal or written. It may be before the bill is drawn, or afterwards,and it may be by telegram. Daniel, Neg.lust. § 496; Bankv. Richards, 109 Mass. 414; Coffman v. (]ampbeU, 87 Ill. 98. It is true that acceptance does not entitle the acceptor to charge the amount oithe draft against the drawer from the date of the acceptance, unless he paya the whole amount at the time, or discharges the drawer from all responsibility. Daniel, Neg. lnst. § 532. But it has the effect to constitute the acceptor the principal debtor, and it gives him a lien upon the funds and securities i.n his hands for the payment ()f the draft, and this lien runs from the date of the acceptance. In Bank v. Schuler, 120U. S. 511, 7 Sup:Ct. Rep. 644, the doctrine that a check, unless accepted by the bank, will not sustain an action at law by the drawee against the bank, inasmuch as there is no privity of contract between them, is recognized as well settled; and the court held that a check does not become a valid claim upon funds against which it is drawn until the holder of those funds is notified of its existence. The acceptance of the draft in question. was made in good faith, and in the ordinary course of business, on the day preceding the closing of 'the Fidelity Bank. There is nothing indicating that the action of t}le Merchants' National Bank was in contemplation of the insolvency of the. Fidelity, or with the view to prevent the application of the assets of that bank in the manner prescribed by the national banking laws, nor is there anything indicating that the Merchants' National Bank or the Seventh NationalBank had any knowledge or intimation of the1i:npending failure of the Fidelity Bank. Upon this state offMt this court is of the opinion that the transaction was not within the inhibition of section 5242, Rev. St. U. S., and that the Seventh National Bank had the right to apply the proceeds of the collections upon the paper in its hands of the Fidelity Bank, at the date of the acCeptance, to the payment of the draft. An order will be made accordingly.
Courl, W.D. Virginw. September 1, 1889.)
OnXOUL BoNDs-CLERK OJ!' COURT-LIABILITY 011' BURBTIBSo'
The BUNtJeli on the bond of the clerk of a district court, conditioned that he shall "pro»e"l:\,: for all money coming into his hands'!urequired by law, are liable fer'biB misapproprlation of money paid to him as clerk under order of court, though such order is based upon the practice of the court, and not upon direct statauthority.
In Bankmptcy. Geo. E. Sipe and J. B. Sttph.itiSDn, for creditors of bankrupt. Leiggert & Strayer, for sureties on bond of the.clerk.
J ... '.l'be question submitted to the court in this case for
li/;\il>iJi,ty of W. late clerko! this court,. and his sure-