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most only be needed at first, while the accumulated premiums of the assured are of slender amount; but admitting that it is ever so needed, it almost immediately becomes superfluous, and should be therefore withdrawn. There is an instance of an office commenced on the proprietary system, with an arrangement for the gradual buying up of the shareholders, which is now effected, so that the office, after twenty years' existence, has made a transition to the mutual system. This is so far laudable: only there was no need for the shareholders drawing profits for so long as twenty years, or for their being allowed at last to get double the original price of their shares. Beyond a very short time, at the most, the capital of a life-assurance company, as far as it is a reality at all, only serves—and this purpose it serves very well-to justify a small set of men in appropriating to themselves funds properly due to others. As might be expected, the means taken for obtaining business by the proprietary offices is not, in general, of a very scrupulous nature. They make extensive use of the system of commissionthat is, large and tempting allowances to solicitors and others to induce them to bring their friends or clients to these instead of any other offices. Some men have almost an income secured to them by the allowances they are entitled to in consequence of having taken a few customers to some of the more liberal class of offices, such allowances being, as we have elsewhere shown,* neither more nor less than a bribe to induce a man of business to betray the interests of those who confide in him. Such a use of funds, however reprehensible it may be on moral grounds, is justified on pecuniary considerations to the shareholders, if it only leaves themselves a profit, seeing that they have no other object to look to. Very different is the case of the mutual offices, where money so employed would be a subtraction from funds properly belonging to the whole circle of the assured.t
In fine, the system of mutual assurance-pure and undefiled—is that which the public should, for its own sake, and partly for the sake of morality also, support. It is an institution contemplating unmixed good to mankind, and where no grosser interests than those of a few officials can possibly be concerned. Conducted on a large scale, and upon a proper footing, it involves no risk, and at the same time, from the system of divisions of surplus, the charges must be held as reduced to a perfect square with the necessities of the case, excepting only the expenses of management. Contrasted with this, the proprietary system cannot for a moment be defended—a business pretending to incur risks, and drawing all the profits which can only be due where risks are reala business which can only thrive in the proportion in which it puts on imposing appearances.
*See article entitled • A Dishonesty in a High Walk.'
We do not look upon this item of expenditure, by an Insurance Company, as improper. It is one of the necessary means for bringing the system of life insurance before the community. It is an advantage both to the company and to society at large-and every policy issued in consequence of such bonus or commission, is a general benefit. This expense, like that of advertising, is inseparable from the business; it is, in fact, nothing more than a salary to an officer.--[Ed. B. M.]
Cases decided in the Courts of Connecticut, Pennsylvania and New York, 1847.
Foreign Law. Where a bill was drawn, accepted and transferred in the State of New York, the acceptance of which was obtained by fraud, and without consideration, but the holder took it bona fide, without any knowledge of the fraud; in an action on such bill, brought in this State, against the acceptor, it was held: 1. That the rule of damages was to be in conformity with the law of New York. 2. That by the law of that State, the plaintiff was entitled to recover all that he had actually paid for the bill, but nothing more.—Roe v. Jerome, Connecticut Reports, vol. 18, p. 138.
Bank Shares. Where B. being liable to the Stamford Bank as endorser of two promissory notes held by that institution as security for such liability, transferred twenty shares of its stock, on the books of the bank to “ E. Hill, Cashier,” who was in fact the cashier at that time; and it
appeared that assigninents and transfers of the stock of this bank, to the bank, or in pledge to it, or as security for debts and liabilities to it, were invariably, by the usage of the bank, made in the same manner as the transfer in question : it was held that such transfer vested the legal title to the shares so transferred, not in Hill in his own right, but in the bank. ('Two judges dissenting.)— The Stamford Bank v. Ferris, Connecticut Reports, vol. 17, p. 259.
Banking 1. The sixth section of the title of the revised statutes relative to unauthorized banking, applies to foreign as well as domestic corporations.. And foreign corporations are still prohibited from keeping any office in this State for the purpose of receiving deposits, or for discounting notes or bills.— Taylor v. Bruen, Barbour's New York Chancery Reports, vol. 2, p. 301.
2. Where such a corporation authorizes one of its officers or an agent, to attend from time to time at certain known places in this State, for the purpose of receiving deposits, or for the purpose of discounting notes or bills, with the funds of the corporation, and for its benefit. Such known places of attendance are to be considered as offices of discount and deposit of the corporation, illegally kept for the purposes prohibited by the statute.-Ibid.
3. And the officer or agent of a foreign corporation, who thus carries on the business of discounting notes and bills in this State, with the funds of such corporation, and for its benefit, renders himself personally liable to the penalties prescribed by the 7th section of the act relative to unauthorized banking.-Ibid. 4. He cannot therefore be compelled to make a discovery of such
violation of the statute, to aid the defence in a suit at law, brought in his own name, upon a note thus discounted by him as the officer or agent of a foreign corporation.—Ibid.
1. The lien which a bank has, by virtue of the act of the 21st of March, 1814, and the act of the 25th of March, 1824, upon the stock and dividends of its debtor, results for the benefit of an endorser, who has been compelled to pay the bank, and who, at the time of payment, gives notice that he claims the stock and dividends.-Farmers' Bank v. Gilson, Barr's Pennsylvania Supreme Court Reports, vol. 6, p. 51.
2. The endorser in such cases may recover from the bank the dividends that may have been declared and retained in an action for money had and received.—Ibid.
3. But if more than six years have elapsed between the time at which the note became due and payable, and the commencement of the action, he cannot recover; the meritorious case of action being barred by statutes of limitations. Ibid.
4. Articles of co-partnership between the endorser and drawer, under their hands and seals, reciting that the note was put in the partnership's concern as part of the drawer's share of contribution to the common stock, but in which there is no covenant to defend the endorser against the payment of the notes, will not prevent the operation of the statute of limitations.-Ibid.
Bill of Exchange. BILL OF Exchange-ForgeD ENDORSEMENT-LIABILITY OF PARTIES.—One of two partners drew, in the name of his firm, a bill upon the plaintiff payable to the order of B., and having forged the name of B. as endorser upon the bill, presented it to the Bank of Central New York, bad it discounted in the regular course of business, and applied the proceeds to his private use. The Cashier of the Bank endorsed the bill and transmitted it to the defendants for collection, and the plaintiff accepted and paid it to the defendants. After discovering that the payee's endorsement was forged, he sued to recover back the money so paid :-Held that the action could not be maintained.
B., the payee, being a stranger to the transaction, and having no interest in the draft
, his endorsement was not necessary in order to transfer a good title to the party discounting the paper, or to entitle such party to receive the money upon it.
The plaintiff having accepted and paid the bill under these circumstances, would have a right to charge the amount against the funds of the drawers in his hands or, if there were none, to maintain an action against them for money paid to their use.
The case of the The Canal Bank v. The Bank of Albany, (1 Hill, 287,) commented upon and approved; but distinguished from this case, inasmuch as there, the endorser whose name was forged, was the owner of the draft and the only person entitled to receive the money upon in Per BRONSON, J.
It seems that the drawers, after having passed the draft with the payee's name endorsed upon it and received the avails of it, in an action against them would be estopped from controverting the genuineness of the endorsement.
Where a bill is put in circulation by the drawer with the endorsement of the payee forged upon it, a bona fide holder may treat it as a bill payable to bearer. Per Bronson, J. Coggill v. The American Exchange Bank, 1 Comstock’s Rep. Court of Appeals, 113.—New York Legal Observer.
Protest. The clerk of a notary presented a note for payment, and the note being dishonored, the clerk made a statement of the fact to the notary, who thereupon protested the note.
Held-That the protest could not be made on the information of a clerk, and that the notary must present the note in person.
This was an action brought by the plaintiff to recover of the defendants the amount of a promissory note of which the defendants were respectively the maker and first endorser, the plaintiff being the second endorser and holder.
To prove the notice of dishonor, the plaintiff called a witness who deposed that he was the clerk of the notary by whom the note was protested, that he (witness) had presented the note to the defendant, ihe maker, for payment, and that it was dishonored, and that he had given notice of the dishonor to the other defendant, the first endorser ; that he (witness) had informed his employer, the notary, of these facts, and that thereupon the notary had protested the note in his own name.
Smith, Judge-I am of opinion that the protest of the note in this case is insufficient. I think a notary cannot protest a note presented by another person : he must present the note in person, and cannot act upon the information of a clerk or any third party. The authority and duties of a notary are of a special, limited and confidential nature, and he has no power to delegate his authority to another, or appoint another to perform his duties.- Before the Marine Court N. Y., The Code Rep.
Bill of Exchange-Special Indorsement. Where a Bill of Exchange indorsed in blank is afterwards indorsed specially, the subsequent special indorsement cannot restrain the negotiability of the instrument.
A presentment for payment by any indorsee, or person claiming under him, is sufficient, and need not be by a person claiming under the special indorser.
This was an action by the special indorsee of a bill of exchange against the defendant, who specially indorsed it. The bill of exchange was drawn by Edwin Bliss upon and accepted by John Williams, who indorsed it generally, and after several blank indorsements, the defendant indorsed it specially as follows: “Pay Barber, Walker and Co. or order, W. M'Donnell.” The latter firm were also known by the name of the Eastwood Company, and the bill was indorsed by them as follows : “ Pp of the Eastwood Company, Thos. Goodwill.” The bill when due was presented to Jones, Lloyd and Co, and the answer ob
tained was “no advice." Notice of dishonor was then given to the defendant, and this action commenced.
The question was, whether the presentment by a person not appearing to claim under the special indorser was a good presentment. Cur. adv. vult.
Wednesday, June 7.–POLLOCK, C. B.—This was an action on a bill of exchange, brought against the defendant, who specially indorsed it. The bill had been previously indorsed generally in what is generally called a blank indorsement, and was therefore, in point of fact, payable to bearer. It was decided in the case of Smith v. Clark, 1 Peake's Nisi Prius Cases, 295, which, as far as I am aware, has been acted upon by the profession ever since, and has been the understood law on bills of exchange, so far as I know, universally accepted in Westminster-ball from the time of that case, that when a bill has become negotiable, payable to bearer, in that way, no other person can afterwards restrain the negotiability. In the present case the bill having been specially indorsed to the plaintiffs, they indorsed it, but in the name of another firm which they equally bore, but which certainly did not correspond with the name in which the bill was indorsed. The bill was subsequently presented for payment at Messrs. Jones, Lloyd and Co's, and the answer given was simply—“no advice.” Upon this due notice of the dishonor of the bill, that is, that it had been presented and not been paid, was given to the defendant, and then the present action was brought. The pleas are, first, a denial of the indorsement. There is no doubt that the indorsement, as averred in the declaration, was proved; therefore, that plea furnishes no defence. There was a denial of the notice of dishonor. It was clearly proved that the notice of dishonor was given, therefore that is no defence. If there be any defence it could only arise upon the other plea, which is the third plea, namely, a denial of the presentinent of the bill for payment, and that really is the true question in the cause; and I think it was rightly stated by the Bench, and admitted by the Bar, that the true question is, was this bill duly presented for payment? Then the question is, perhaps, was the accepior bound to pay the bill upon that presentment? We are all of opinion clearly that he was so bound. And on refering to the cases, especially to the case of Leonard v. Wilson, which was decided at the time Lord Lyndhurst presided in this Court, we find that that case is precisely in point. It is very true that there the action was brought against the Bank of Liverpool who had indorsed it previously to the indorsement which gave rise to the difficulty in that case. But it was well argued by Mr. Crompton on that occasion, that if the party had paid the bill in his own wrong, he could not, by paying money he was not bound to pay, obtain a title to sue the then defendant. Therefore that case necessarily involved, and so the Court considered, the question which is before the Court on the present occasion. The judges all there unanimously gave their opinion that the plaintiff was entitled to recover; and I think my brother Alderson has suggested in terms very clearly what is the solution of the difficulty. It is in substance precisely what was stated