¶1(dissenting). I concur in the opinion of Mr. Justice Timlin. It seems to me that my Brother Tim-lin has shown with a certainty .equivalent to a mathematical demonstration that the note in question was intended to take effect as soon as parted with by the payor. The cotempo-raneous agreement was with reference to a contingency which might enable the payor to discharge his obligation otherwise than according to its tenor. It seems quite manifest that my brethren of the majority have mistaken a condition subsequent created by parol at the time of delivery of the paper, which all agree could not be used to defeat it, for a condition subsequent contemplating necessity for the happening of a specific circumstance to give the paper effect as ■ an obligation.
¶2I dissent from the decision of the court upon another ground which I will mention without taking time to discuss *255it. Tbe assumption, of liability by tbe new bank, in my judgment, bad no reference to secret defenses to commercial paper due in tbe future, but to liabilities of the bank as they are ordinarily understood and commonly carried upon tbe books; in general, consisting of indebtedness to depositors.
¶3There are other questions discussed upon the appeal not mentioned in the court’s opinion, but I take it that if it were not for tbe conclusion reached upon tbe two points I have mentioned there would have been an agreement resulting in a reversal of tbe judgment. In my opinion it should be reversed and judgment rendered in favor of tbe plaintiffs.