Trespass and trover for a quantity of hay. Trial by court, December term, 1881, Caledonia county, Ross, J., presiding. Judgment for plaintiff. The parties agreed on the following facts:

That the property for the taking and converting of which this suit is brought was regularly and legally taken and sold on a valid execution by the defendant as sheriff, provided the property sold was not exempt from attachment and levy; that at the time of the said levy and sale, the plaintiff had two cows and one horse; and that one cow and the horse were exempt from attachment, and that he had no other horses, cattle and sheep, and did not have any others during said winter; that hay enough was left to the plaintiff at the time of said levy and sale to keep the said exempted cow and horse through the remainder of the winter; but the hay sold by the defendant would have been needed to keep all the stock exempted by the statute. The plaintiff's declaration alleged that the hay was taken February 17, 1880.

J. P. Otis, for the plaintiff; Belden & Ide, for the defendant.

POWERS, J., delivered the opinion of the court: The question presented in this case is whether the exemption from attachment of forage in our statute of exemptions is conditional upon the debtor's having the exempted animals specified to consume the forage; and it is to be determined wholly upon a construction of the statute itself.

Exemption laws exist in all our sister States in some respects similar in phraseology to ours, and in other respects quite different. The decisions of other States are based upon the language of their own statutes, and can therefore afford us little aid, as they would, did the question involve a common-law principle.

This court has ever construed these statutes liberally in favor of the debtor, as such was the spirit which prompted their enactment.

Our statute exempts one cow, ten sheep, a yoke of oxen or steers, or in lieu of the oxen or steers, two horses kept and used for team work. The exact phraseology of the statute is "and also one yoke

of oxen or steers, as the debtor may select, two horses kept and used for team work, and such as the debtor may select in lieu of oxen or steers, but not exceeding in value the sum of two hundred dollars, with sufficient forage for the keeping of the same through the winter," "provided that the exemption of said horses and forage therefor" is not to extend to contracts made before a date named.

At the time of the attachment of the hay in question, the debtor had two cows and one horse, and had no other exempt animals. Can he claim as exempt forage sufficient to keep exempt animals through the winter, unless he owns such animals to be so kept? We think he can.

In the former part of the same section quoted above one cow and ten sheep are declared to be exempt; later on is found this clause, "forage sufficient for keeping not exceeding ten sheep and one cow through one winter." It has always been understood that this exemption of forage was absolute, irrespective of the fact whether the debtor had the ten sheep and cow or not.

The clause exempting the oxen or horses reads "two horses, with sufficient forage for the keeping of the same," etc. The preposition "with," as here used, is to be construed as connecting two independent subjects, rather than as joining a dependent or qualifying clause to one subject. It is the same as if it read "a yoke of oxen and, in addition thereto, forage," etc.

This construction is in accord with the settled understanding of our people, and we think it expresses the intent of the legislature. Judgment affirmed.

ATTORNEY AND CLIENT-CONFIDENTIAL

RELATIONS.

SHOEMAKER v. STILES.

Supreme Court of Pennsylvania, April 16, 1883.

1. The relation of attorney and client gives rise to great confidence,and the attorney is presumed to have the power to strongly influence his client, and to gain by his good nature and credulity, and to obtain undue advantages and gratuities. Hence the law often declares transactions between them void which between other persons would be unobjectionable. Unless the transaction is fair, it is deemed a constructive fraud.

2. If an attorney fraudulently claims the right to retain out of the money of his client a larger sum than the jury find to be just, he forfeits all claim to any compensation.

3. A receipt is only prima facie evidence.

4. Courts have power to make rules respecting the filing of depositions, and can not be reversed for en. forcing them.

Error to the Court of Common Pleas of Lehigh county.

In a suit between the plaintiff's decedent and the Lehigh Valley Railroad Company, December 23, 1869, a verdict in favor of the plaintiff was had for $5,118.90. March 23, 1871, this verdict and its interest, in all, $5,502.81, was paid to Mr. Stiles, the plaintiff's counsel, and also costs of witnesses, $161.40, were paid to the prothonotary of Bucks county. On the day of March, 1871, Mr. Saeger, the plaintiff's decedent, went to the office of Mr. Stiles, and was paid $4,302.81, leaving a balance of $1,100 in the hands of Mr. Stiles. Mr. James, of Bucks county, was associate counsel at trial; this balance was retained pending the settlement of fees, costs, etc., upon the allegation of Mr. Stiles that witnesses were unpaid, and that he was in need of money. Mr. Saeger, running through a period of six to eight months, called repeatedly upon Mr. Stiles for full settlement, but he was postponed under the pretext that the fees of Mr. James had not been paid, and that the costs were still unsettled. These facts were offered to be proven by the deposition of Mr. Saeger. In the meantime, Mr. Saeger paid his witnesses, and the $161.40, bill of costs for plaintiff's witnesses, remained with the prothonotary. Mr. Stiles procured an order from Mr. Saeger to draw these costs, and sent the order for costs to Mr. James, and who, by the direction of Mr.Stiles, but without authority from Mr. Saeger, drew them and retained them as fees; thus the attorneys had in actual cash $1,261.40 of their client's money, and after deducting fees, the balance was due the plaintiff's decedent. Mr. James was paid a retainer of $50, and Mr. Stiles also $50 at the same time, for which Mr. Saeger gave Mr. Stiles a note of $100.

When the $4,402.81 was paid, Mr. Stiles made a statement as follows:

Interest from December 23, 1869, to March 23, 1871....

Deduct fees, etc.. Note.....

.$5,118 90

383 91 $5,502 81 ..$1,000 co 100 00 1,100 00 $4,402 81 Received the above sum of $4,402 81, in full as above. WILLIAM SAEGER.

At the trial this receipt was proven and admitted in evidence, and was held to be conclusive by the court, and the jury was instructed to find for the defendant, if they believed Saeger had signed the receipt.

For plaintiff in error, A. B. Longaker, Esq.; Contra, Messrs. R. E. Wright and Evan Holben.

TRUNKEY, J., delivered the opinion of the

court:

By itself the receipt is prima facie evidence that Saeger consented to the deduction of $1,000 by the defendant for his services; but it is by no means conclusive. A receipt is like any other parol admission of the party, and is open to explanation or correction, and he may show that it was made by mistake, or does not exhibit the

real state of facts. Russell v. Church, 65 Pa. St. 9; Wharton on Cont., sec. 938. The parties were attorney and client. That relation gives rise to great confidence, and the attorney is presumed to have the power to strongly influence his client, and to gain by his good nature and credulity, and to obtain undue advantages and gratuities. Hence, the law often declares tranactions between them void, which between other persons would be unobjectionable. Unless the transaction is fair and conscionable, it is deemed a constructive fraud. This long establised rule applies to this case, even if the receipt is taken as evidence of a settlement of the amount of these fees for the services in the judgment therein recited. More than eighteen per centum was deducted for fees, and the plaintiff,in the first place, must show that the sum retained is larger than the services of the defendant were reasonably worth, or larger than agreed upon if there was an express contract. If he does, then the burden is cast upon the defendant to prove, to the satisfaction of the jury, that the sum was retained by his client's agreement, under circumstances that made it fair and conscionable. When there is a dispute respecting the amount of fees, and the attorney acted in good faith, his right to compensation is not forfeited should the jury find that he is entitled to a less sum than he claimed. But if he fraudulently claimed the right to retain out of the money of his client a larger sum than the jury find to be just, he forfeits all claim to any compensation whatever. Balsbaugh v. Fraser, 19 Pa. St. 95. The testimony of Mr. James was sufficient to warrant a finding by the jury that the defendant contracted with Saeger to conduct the suit against the Lehigh Valley R. Co. for ten per centum of the amount recovered; also, that James contracted for a contingent fee for services in the same case of $500. After the date of the receipt the defendant wrote an order in favor of James, which Saeger signed, for the costs, amounting to $160.40. James received the costs, but nothing from the defendant, except letters containing, among other things, urgent directions to draw the costs, and not pay a cent to the witnesses or Saeger. These letters tend to show the manner of dealing between the parties, and Saeger's dissatisfaction. The evidence ought to have been submitted to the jury and considered in connection with the fact that the parties held the confidential relationship of attorney and client. It is now immaterial whether the defendant could rightfully have paid out of money in his hands James' fee; he did not. The first and sixth specification of error must be sustained.

Courts have power to make rules respecting the filing of depositions, and can not be reversed for enforcing them. Rule No. 87 is reasonable, and not inconsistent with any statute. There are good reasons for requiring promptness in the filing of depositions, and it is incumbent on the party at whose instance they are taken to see that they are filed in time. If it be eor ceded that the court be

Supreme Court of Kansas, September 6, 1883.

1. The Champion Machine Co., the payee and holder of a promissory note, indorsed it to the plaintiff bank before maturity. The company, at the time of such indorsement, knew that the consideration had failed. The indorsement was made by A, its president and actual business manager. A was also a director of the plaintiff bank, and one of the three constituting its discount committee. The note was discounted by the bank by its cashier under general instructions from its president, and probably other members of the discounting committee, including A, to discount all paper offered by the Champion Machine Co. The discount committee as such never took action upon this note, but it was discounted by the bank through its cashier, under the general instructions above stated. As president and general manager of the machine company, A was chargeable with notice of the infirmity in the note. If the discount committee had met and acted upon the note the bank would have been charged with the notice which he as member of the discount committee had. Query, Can an officer of a bank, charged with a special duty, by a general instruction to some other officer practically abandon the discharge of his duties, and thus through the ignorance of such other officer enable the bank to discount and obtain possession of paper as a bona fide holder, when if he had discharged his duty it would not have taken the paper with notice?

2. The mere discounting of paper and placing the amount thereof to the credit of a depositor, who already has a large balance to his credit, does not make the bank a purchaser for value so as to protect it against infirmities in the paper. Entering the amount of the discount to the credit of the depositor, simply creates the relation between the bank and the depositor of debtor and creditor, and as long as that relation remains and the deposit is not drawn out, the bank has simply promised to pay the depositor, has parted with no value, and is not entitled to the protection of a bona fide holder of paper.

Thos. W. Heatley and W. D. Webb, for plaintiff in error; Ryan & Wood, for defendant in error. Error from Doniphan County.

BREWER, J., delivered the opinion of the court: This was an action on a negotiable promissory note. Trial by jury. The court instructed the jury peremptorily to find for the plaintiff, and of this defendants complain. The note was given in payment of a Champion harvester and cord binder. In the sale of this machine, a warranty was given, and the defense was a breach of the warranty, and therefore a failure of the consideration. Upon the trial, testimony was offered in support of this defense, and finally it was admitted that the

defendants were entitled to a verdict, unless the plaintiff was a purchaser of the rote for a good and valuable consideration before maturity without notice of the failure of the warranty. The note was in form to the order of Amos Whitely, President. It was due Jan. 1, 1882; was indorsed and transferred to plaintiff, Dec. 14, 1881. The note, though in form to the order of Amos Whitely, was the property of the Champion Machine Company, was taken by it on the sale of the machine in the name of its president for convenience, and by it, through the indorsement of its president, transferred to the plaintiff. The failure of the warranty was communicated to the general agent of the company at St. Joseph, Mo., before the note became due and while it was in the possession of the company. It further appears that the only officer of the bank who took part in the discount and purchase of this note by the plaintiff, was its cashier, John G. Benalack. Mr. Benalack had been cashier since Aug. 15, 1881. Up to a month prior to such time, he had been book-keeper of the Champion Company, and knew in a general way that the consideration of notes received by the company was its machines. He had no personal knowledge of the consideration of this note, of the failure of the warranty in the sale of the machine, or any other matters connected with it. The note was brought to him by the cashier of the Champion Company for discount in the ordinary course of business. After having been discounted, it was held by the bank until sent forward for collection. Suit was commenced March 11, 1882. Amos Whitely, the president of the machine company, who indorsed this note, was a director of the plaintiff bank, and one of the three members constituting its discount committee at the time this note was discounted. The note was never formally presented to the discount committee, but the note was discounted by the cashier under general instructions from the officers to discount any paper offered by certain customers of the bank, included among whom was the Champion Machine Company. These instructions were given by the president, and perhaps, according to the testimony of the cashier, by Amos Whitely also. Prior to the first of January, 1882, Amos Whitely was in the habit of visiting the bank once or twice a week, and as familiar with its business as directors usually are. His connection with the Champion Machine Company was not only as president, but also as its actual business manager.

Further, at the time of discount, no money was paid directly to the machine company, but the amount of the discount, $142.14, was credited to the account of the machine company. At that time, and since, up to the time of the commencement of this action, the machine company carried an average balance of several thousand dollars in the bank.

This, we believe, covers all the material testimony. All bearing upon the indorsement and transfer of the note to plaintiff, and the relation

of the Champion Machine Company to the plaintiff, was in deposition given by the cashier of the plaintiff. Upon this testimony two important questions arise. First, did the bank take with notice of the defense to the note? Second, had it so paid for the note that it could claim the benefits of a bona fide purchase for value?

Upon the first question, we remark that the knowledge of the general agent of the Champion Mackine Company was the knowledge of the company. Therefore, at the time it indorsed the note to plaintiff, it knew of its infirmity. Hence, if the bank was chargeable with notice of what the company knew, then it was not a bona fide holder without notice. Now, the president and general business manager of the machine company was, as stated, a director and one of the three members of the discount committee of the bank. He knew what the company knew of the infirmity of the paper. As president and general business manager, he knew, because the company knew, that the warranty in the sale of the machine had failed, and that therefore the makers had full defense against this note. Is the bank chargeable with the notice of what Amos Whitely, a director and member of its discount committee knew? The mere fact that Whitely was a director, would not, it seems, charge the bank with notice of what he knew. In Wade, on the Law of Notice, secs. 682 and 683, the author thus states the rule: "Accordingly, in a case where one of the directors of a bank had notice of the fraudulent perversion from the objects for which they were drawn, of certain bills, and with that knowledge, was present at a meeting of the board where the same bills were presented for discount, his knowledge was properly held to be the knowledge of the bank. However, the mere fact that a bank director is in possession of certain knowledge, which would prevent his becoming an innocent holder, would not affect the bank if the paper should be received there and discounted, without his knowledge. It could hardly be his duty to report to his bank every fact coming to his notice, in relation to all the negotiable paper of which he may have any knowledge, where he had received no intimation that such paper would be presented there for discount." The authorities cited in the notes seem to sustain the general doctrine laid down in this quotation. See Bank v. Senecal, 13 La. 525; Insurance Co. v. Insurance Co., 10 Mo. 517; Bank v. Paine, 25 Conn. 444; Bank v. Hart, 3 Day 491; Bank v. Lewis, 22 Pick. 24; Bank v. Norton, 1 Hill 572; Bank v. Davis, 2 Hill 463; Bank v. Aymar, 3 Hill 263. So that the mere fact that Whiteley, as a director of the bank, knew of the infirmity in the paper would not charge the bank with notice unless he in some way participated in the discount. But there is a fact beyond that of directorship. Whitely was one of the three gentlemen constituting the discount committee of the bank. While as a director he had a general supervision over the affairs of the bank, as a member of the discount commit

tee he was charged with a special duty covering its discounts. And the question as it really stands is narrowed to this: Can an officer of a bank charged with a special duty, by a general instruction to another officer to perform that duty, in a certain class of cases, relieve the bank from responsibility for notice of facts which it would unquestionably have known and been responsible for if he had discharged such official duty. In Morse on Banks and Banking, page 113, the author says: "In the case of knowledge acquired by or communicated to any other officer than a director, little difficulty can arise. The president, it should be remembered, is a director. But his duty of general supervision is more general than that of any other member of the board. Wherefore notice to him on any subject would probably be held to be notice to the bank. If it fall within the scope of the agency and official employment of the officer it is notice to the bank." See also Bank v. Davis, 3 Hill 463. We think it is a question of grave doubt whether public policy will permit an officer of a bank, charged with a special duty to surrender the actual performance of that duty to any other oflicer, and thereby relieve the bank from the responsibility which would have rested upon it had he properly discharged his duty. We shall not however absolutely pass upon that question for we think upon the other question presented the ruling of the district court was erroneous and must be reversed.

In reference to that question it will be observed that the bank in fact paid nothing to the company at the time of the discount. It simply credited the company on its books with the amount of the discount and thereby enlarged the company's account with the bank. It is not a case in which the company's account was overdrawn and in which it was indebted to the bank, which indebtedness was reduced by the amount of the discount. On the contrary the bank owed the company and it simply, by the discount, increased the amount of this indebtedness, an indebtedness which continued until after suit was brought and the bank had full notice of the defense. Now conceding that the bank was a bona fide holder, that it acquired title in the first instance without any notice of any infirmity to what extent is it protected. The general rule in such cases is that a bona fide holder is protected to the amount he has paid, or lost by virtue of the discount. In the case of Dresser v. Construction Co., 93 U. S. 92, it was held that a bona fide holder of negotiable paper purchased before its maturity upon an unexecuted contract, on which part payment only had been made when he received notice of fraud and a prohibition to pay, is protected only to the amount paid before the receipt of such notice. In the opinion which covers simply that point the authorities are fully cited and the conclusion reached is the unanimous opinion of the court. In Bank v. Valentine, 18 Hun. 417, it is held that the mere discounting of a note and giving a party credit on the books of the bank for

the amount thereof does not constitute the bank a holder for value. A similar proposition is laid down in Dougherty v. Bank, 93 Pa. St. 227. We do not cite the various cases in support of the general proposition, for they are fully cited and discussed in the opinion of the court in 93 U. S. supra. The proposition rests on the plainest principles of justice, and in no manner impairs the desired negotiability and security of commercial paper. Whenever the holder is a bona fide holder, he has a right to claim protection, but protection only to the extent he has lost or been injured by the acquisition of the paper. If he has parted with value, either by a cash payment or the cancellation of a debt, or giving time on a debt, or in any other manner, to that extent he has a right to claim protection; but when he has parted with nothing there is nothing to protect.

A mere promise to pay is no payment. He may rightfully say to the party from whom he purchased, the paper you have given me is valueless and, therefore. I am under no obligation to pay, and if the paper be in fact valueless,payment can not be compelled. Now the relation of a bank to its depositor is simply that of debtor. The bank owes the depositor so much. If the deposit is valueless its obligation to pay is without consideration, and it may decline to pay. There is nothing in the relation of a bank to its depositor which takes its obligation to its depositor out of the general rule of debtor to creditor. The case of Bank v. Crawford, 2 Cin. Superior Ct., cited by defendant in error, is a case in which the depositor's account was overdrawn, and the discount therefore was practically the payment of an antecedent debt. And in such a case the bank, having taken the paper in payment of an antecedent debt, was entitled to protection to the amount of such debt. Draper v. Coles, 27 Kan. 484.

We think, therefore, that the bank, having paid nothing at the time of its discount, having simply increased its debt to the depositor, the Machine company, and that debt remaining unpaid at the time suit was brought, and it received actual notice of the infirmity of this paper, can not claim the protection of a bona fide holder for value. We see nothing in the case of the Railroad Co. v. Bank, 102 U. S. 14, which conflicts with this conclusion. At least there is nothing in the decision as applicable to the facts of that case which conflicts, nor the illustrations made by the learned judge who wrote the opinion of the court. And while there are some expressions in that opinion which may seem to conflict, we do not understand that the court means in any way to overrule the prior case in 93 U. S. supra. We think, therefore, the district court erred in its peremptory instructions to find for the plaintiff; that the judgment must be reversed and the case remanded for a new trial. See also Jordan v. Bank, 74 N. Y. 467; Bank v. Bank, 1 Hall, 617; Bank v. Bank, 46 N. Y. 82; Hubbard v. Chapin, 2 Allen, 328; Stevens v. Bank, 3 Hun (N. Y.), 147; Holcomb v.

Wyckoff, 35 N. J. L. 36; Holman v. Hobson, 3 Humph. 127; Bank v. Chapin, 8 Met. 40; Williams v. Smith, 2 Hill, 301; Todd v. Shelbourn, 8 Hun (N. Y.), 510; Butler v. Harrison, 2 Cowp. 565; Garland v. Bank, 9 Mass. 407; Clark Nat. Bank v. Bank, 52 Barb. 592; Platt v. Chapin, 49 How. (N. Y.) 318.

The judgment will therefore be reversed and the case remanded for a new trial. All the justices concurring.

1. ATTORNEY AND CLIENT-WITHDRAWAL OF ATTORNEY-COURT'S DUTY.

It is not the legal duty of the Court in a civil case to see that the litigants are supplied with attorneys in every stage of the proceeding. If an attorney withdraws from a case, the Court, in the exercise of its discretion, might postpone the trial, or not, to give opportuntiy to secure other counsel; but the discretion of the Court, either exercised, or in refusing to act in such case, is not ground for error. Leahy v. Dunlap, S. C. Colorado, Spring T. 1883; 4 Colorado L. Rep, 59.

2. CONTRACT-WARRANTY-FRAUD. Plaintiff traded with defendant exchanging cattle for a horse; denied a general warranty as to the soundness of the horse and denied that he was blind while he owned him. Defendant claims the horse was blind, that plaintiff knew it, and immediately upon discovering such fact and on the day of the exchange he returned the horse and took the cattle. The circuit court observed that what somebody else had said in the presence of plaintiff about the horse being blind was not competent evidence unless plaintiff was trying to sell the horse at the time to defendant. Held error. as tending to discredit plaintiff's statement that he did not know the horse was blind. Dowling v. Lawrence, S. C. Wis., Sept. 25, 1883; 6 Wis. L. N. No. 3.

3. CONVEYANCES-DEFECTIVE ACKNOWLEDGMENT

-AMENDMENT.

A notary public, in certifying to the acknowledg⚫ ment before him by a married woman and her husband of a certain lease of land belonging to the married woman, neglected to insert the fact that the contents of the lease had been made known to to her. The lease was then delivered, and shortly afterwards recorded. Five months afterwards, the same notary, without again calling the parties before him, added a second certificate of acknowledgment in the proper form, certifying what had occurred at the time of the first acknowledgment. The lease was then a second time recorded: Held, that the second certificate and recording were ineffectual to cure the invalidity of the first certificate of acknowledgment. Enterprise Transit Co.