PECK V. FIRST NAT. BANX.
as to all but one of them, it is admitted that a payment was made in 1885, which, upon any construction, would take them out of the statute. Upon the remaining orderit is quite evident that the statute is a complete defense. I shall therefore finstruct the jury to render a verdict for the plaintiff in this case for the sum of $4,847.12, and interest from November 7th.
NOTE. A motion for a new trial, argued before t.he circuit and district . judges, was denied. .
et al. v.
FIRST NAT. BANK.
Ccnrcuit Court, S. D. New York. May 22, 1890.)
BANKS AND BANKING-COLLEOTIONS.
Plaintiffs sent to a certain bank a bUl of exchange indorsed to said bank for collection. At the time the bank received the bill of exchange it was insolvent, to the knowledge of the mana¢ng officer, and on that day, or following morning, it failed. Prior to the failure it indorsed the bill of exchange to defendant bank, which collected it, and kept the proceeds, crediting the insolvent bank, which was indebted to it, with the amount thereof. HeW, that the first bank acquired no title because of its fraud in not disclosing its insolvency, and defendant had no better title, as plaintiffs' indorsement showed that the bank was merely plaintiffs' agent to collect the proceeds.
At Law. Action by John P. Peck and others, copartners, doing business ae "Farmer!'!' Bank of Coshocton," against the First National Bank of New York to recover the proceeds of a bill of exchange, which was sent to the Fidelity National Bank of Cincinnati, with the following indorsement thereon: "Pay to the order of Ammi Baldwin, cashier, for collection. account of Farmers' Bank of Coshocton, Ohio. SAMUEL IRVINE, Cashier." Said Samuel Irvine was cashier for plaintiffs. The Fidelity Bank dorsed the bill of exchange to the defendant bank, and, after the failure .of the Fidelity Bank, the defendant bank collected it,and kept the pro:ceeds, crediting the Fidelity National Bank, which was indebted to defendant, with the amount thereof. Henry O. Andrews, for plaintiffs. Peabody, Baker Jc Peabody, for defendant.
WALLACE, J. At. the time when the Fidelity Bank received the draft belonging to the plaintiffs for collection, the bank was, according to the agreed statement of facts, "hopelessly and irretrievably insolvent,as was known to E. L. Harper, the vice-president of the Fidelity Bank, who was then the managing officer of the business of the bank." The bank failed the same day, or the next morning, and never resumed business. Under these circumstances, it was a fraud upon the plaintiffs, on the part of the bank, to acquire their property upon the faith of its apparent prosperity, without disclosing the real situation. The FIdelity Bank;
,acquire; .titletotbe draft,or dts" proceeds. Rq,ilJohn$iQn, ;Rep. 390. indorsement 'upon i tBedraft, was notice to that, thl'l; ;Jridelity Bank was merely :al}.JI,gentfor the to collect the proceeds, consequently ,the defen,d,ant Aid not better titleto the; draft, or its proceeds, than the Fidelity Bank bad. Judgment is ordered for the plaintiffs.
MosmR et w.t.v.
(Oircuit Oourt, S. V. Oa7l/J'ornw. August 8, 1890.)
INJURIES BY ANIlIU.LS-PLEADING-SCIENTEB.
In an action, for personal injury, by defendant'l! cow, it is not necessary to allege scienter where it is alleged that the injury was committed while the cow was negligently permitted, by defendant, to trespass on plaintiff's premises.
HUSBAND A.ND WIFE-AcTIONS-PLEADINGS-MIsJOINDEB.'
In an actiOn by' husband and wife; ,a compl,"nt stating '8lI the cause of action a personal injury done to the Wife, Qn,d averrmg that by reason of such injury both plaintUfs'h,ave been damaged, is demurrable for misjoinder of causes of action, sirice the hUsband, though a proper party plaintiff, cannot recover for such injUl7.
J.' W. Ahern and Del Valle
La",,';'" 0n demurrer to complaint.
Stephen M. White, for defendant.
« Munday, for plaintiffs.
, Ross, J.;Two objectioDsare urged by the demurrer to the amended complaint in this case. One is that there is no allegation to the effect that the defendant had any knowledge of the dangerous character of the cow which, iUs alleged, inflicted, the injuries complained of. But the complaintaJleges ,that the defendant negligently permitted the cow to tr6$paas anel, ,mla.wfully to be upon the premises of the plaintiffs, and that while so trespassing the injuties were inflicted. Under such circumstances it is not necessary to allege that the owner had knowledge of the vicio\ls, propensity ,of theanirrial.. Van Leuven v. liyke, 1 N. Y. 515; Decker v.'Gatrrrr1-cJ'll, 44 Me. 322, ,and authorities cited in note to that case in 69 Amer. Dec. 103. The plaintiffs are alleged to be husband and wife. and the injuries to have been inflicted on the wife, and by rE'ason of such injuries that "the plaintiff NellieL. Mosier, and both plaintiffs herein, have been injured in the SU111 of fifty thousand dollars." Wherefore theyprayjudgrpent for that S\lm, with costs. . The ground .of the action beingtbe wife's persopal injuries, the cause C)faction is, The husband was properly joined as a plaintiff, be<lause thecommQn-law rule, requiring that he do so, is yet in force in sta,te. husbapd,cannot himself recover for the.personal inwife. Matt1wuJ". Railroad Go., 63 Cal. 451, and .(',:ited. Upon the ground that there is a misjoinder of 9Rusea of 3Gti9n in; the amended COll1plllint, the demurrer is sustained, with leave 1,9 'plaintiffs to further amend. within 10. days.