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Stoddard the following property: One | post-office, Kalamazoo county, state of

Triumph Drill No. — upon condition, Michigan, jointy and severally promise to however, that if this note and mortgage pay to the Incorporated Company of Gaar shall he paid on or before the maturity Scott & Co. or order one hundred and fifty thereof, then this mortgage to be void, dollars, payable at Kalamazoo National otherwise in full force; and it is further Bank, with 7% interest from date, and 10% argeed that in case of failure to pay the after date, and 5% attorney's fees, without amount due thereon at maturity, or when relief from homestead, valuation or apever the holder hereof may deem himself in- praisement laws, for value received. The secure, then be may take said property by makers and indorsers of this note hereby virtue of this mortgage, and sell the same severally waive presentment for payment, at public auction as by law provided; the protest and notice of protest, and nonproceeds of said sale, after deducting all payment; and the payee or holder of this expenses, to be applied on this note and note may renew or extend the time of paymortgage, the residue, if any, to be re- ment of the same from time to time, as turned to the undersigned." Justice REED, often as required, without notice and of the supreme court of Iowa, in deciding without prejudice to the rights of such the caso, says: "The question presented payee or holder to enforce payment against IH whether (thir) instrument [is] nego- the makers, sureties, and indorsers, and tiable. Certainty as to the payer and each of them, parties hereto, at any time payee, the amount to be paid, and the when the same may be due and payable." time of payment, is an essential quality of The instrument called a "note," and the a negotiable promissory note. The first chattel mortgage given to secure the payprovision of the instruments in suit is an ment of the same, were assigned to the undertaking by the maker to pay to the plaintiffs before the time of payment named person named as payee, or to bearer, a therein. They were shown to be innocent specified sum of money, with interest there- purchasers for value, in the regular course on, at a certain date. This provision, of business. The court held the instrument standing alone, contains all the elements to be not a negotiable promissory note, of negotiability. If the instruments are and cited the following cases as authority: not negotiable, then it is because the un- Lamb v. Story. 45 Mich. 488;1 Bank v. Purdertaking of the maker is qualified, and dy, 56 Mich. 6, 22 N. W. Rep. 93; Bank v. some element of uncertainty in these re- Carson, 60 Mich. 432, 27 N. W. Rep. 589; spects is created by the subsequent provis- Altman v. Rittershofer, 36 N. W. Rep. 74, ion. By this subsequent provision of the 68 Mich. 287; Altman v. Fowler, 37 N. W. contract a mortgage of certain personal | Pep. 708,-and that the same defenses were property for the security of the debt, evi- therefore open to defendant as if suit had denced by the preceding provision, is cre- been brought by Gaar, Scott & Co. In ated. It does not by any express terms | Lamb v. Story, 45 Mich. 488, 8N. W. Rep. modify the undertaking of the maker in 87, the action was founded on an instruthe preceding provision, either as to the ment payable on or before two years, with amount which is to be paid, the time of interest at 10 per cent., and contained a payment, or the person to whom it is clause that it

clause that if paid within one year it to be made. But it is intended that as it would not draw interest. The court says: confers upon the payee or the holder of "We are of opinion that the instrument the instrument the right to take posses-sued upon cannot be considered a negotision of the mortgaged property and, as is able promissory note. While it is made claimed, mell it, even before the maturity payable on or before two years, with 10of the debt, and apply the proceeds in sat. per cent, interest, and is thus far definite Isfaction thereof, it has the effect to render and certnin, yet the subsequent clause, that, the instrument uncertain as to the amount if paid within one year, it shall not draw which may be recovered upon it at matu- | interest, destroys the element of certainrity. • • • In determining the effect of ty which otherwise would exist." In Bank the instruments both conditions must be v. Bynum, 84 N. C. 24, the counsel fees and considered, and when they are considered expenses of collection were promised, but together we think that while they empow. were left uncertain, and the time of payer the holder to take possession of the ment, which is also important, was left to mortgnged property before the maturity of the option of the payees. There the note the debt, if he deemed himself insecure, was held non-negotiable. In Bank v. they did not empower him to sell it until | Larsen, 60 Wis. 206, 19 N. W. Rep. 67, it is after its maturity. ... The debt evi

The debt evi- decided squarely for the defendant that denced by the instruments was not subject | a provision for the payment of 10 per cent. to lie diminlmhed before its maturity, and attorney's fees for collection destroys there is no uncertainty as to the amount the negotiability of the note; and this deto be recovered thereon at maturity. The cision is placed upon the authority of the fact that by these terms a mortgage is opinion of Mr. Justice SHARNWOOD, in created by which the debt is secured, and Woods v. North, 84 Pa. St. 407, and of under which payment in whole or in part Manufacturing Co. v. Newman, 60 Md.584. may be enforced after maturity, does not. A promissory note, or note of hand, as in our opinion, affect the question wheth- | it is often called, is an open promise in er or not the instruments are negotiable. writing by one person to pay another perThey possess all the elements of negotiabil- son, or to his order or bearer, a specified Ity." In the case of Bank v. Wheeler, 42 sum of money, absolutely and at all events. N. W. Rep. 963, the instrument sued on 1 Daniel, Neg. Inst. § 28. “In order to fulfill was as follows: "$150. Richmond, Ind., the definition given, the paper must carry July 22, 1886. On or before the 1st day of November, 1887, the subscribers, of Alamo 18 N. W. Rep. 87.

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its full history on its face, and embrace est, but if not paid promptly when due, 10 the following requisites: First, it must be per cent. There is no certainty until after open; that is, unsealed; second, the en- due as to the amount that will discharge gagement to pay must be certain; third, the instruments, the amount depending the fact of payment must be certain; upon the fact whether paid then or not. fourth, the amount to be paid must be cer- This element of uncertainty, not conformtain; Afth, the inedium of payment must ing to one of the essential requisites of a be money; sixth, the contract must be negotiable instrument, renders them nononly for the payment of money; and, sev. negotiable. Our Code has defined a nego

. enth, it is essential to the operation of the tiable instrument to be a written promise instrument that it should be delivered." or request for the payment of a certain Id. $ 30. To constitute an instrument ne- sum of money to order or bearer, made gotiable as a promissory note, the maker's payable in money only, and without any liability must be absolute and uncondi- condition not certain of fulfillment, and it tioned for the payment of a definite sum must contain no other contract. The deof money. Bank v. Taylor, (Iowa,) 25 N. sign of the statute is to keep negotiable W. Rep. 810; Merchants' Nat. Bank v. Chi- promissory notes clearly confined within cago, etc., Co., 25 Fed. Rep. 8J9; Hall v. the limits of such paper as required by the Toby, (Pa.) 1 Atl. Rep. 369; McComas v. law merchant, and allowing no outside Haas, (Ind.) 8 N. E. Rep.579; Bank v. Car- agreement or collateral understandings to son, (Mich.) 27 N. W. Rep. 589; Grimison v. enter into the main promise. Otherwise Russell, (Neb.) 16 N. W. Rep. 819; Edwards these instruments may be lumbered up v. Ramsey, Minn.) 14 Ñ. W. Rep. 272; with all sorts of stipulations which do not Smith v. Marland, (Iowa,) 13 N. W. Rep. properly belong to promissory notes, but 852; Miller v. Poage, (Iowa,) 8 N. W. Rep. to written contracts. Taking both facts 799; Bank V. Armstrong, 25 Minn, 530. into consideration, we must hold the inJudge BREWER, of the United States circuit strument upon which this action was court for the eastern district of Missouri, founded as non-negotiable, and the judgin the case of Hughitty. Johnson, reported ment of the court below is affirmed. in 28 Fed. Rep. 865, held that a note otherwise negotiable is rendered non-negotiable KELLAM, J. I concur in the decision of by this stipulation in it, viz., a promise to this case because the predecessor of this pay “with interest and exchange," and court, in Garretson v. Purdy, 3 Dak. 178, 14 says: “This stipulation renders uncertain N. W. Rep. 100, adopted a principle and rule the amount to be paid at the maturity of which is probably controlling as to the the paper. It is interest and exchange, negotiability of the instrument before us. and what that exchange will be no one If the question were a new one in this can tell."

court, I should dissent from the doctrine By a careful review of these cases it that the certainty as to the amount represeems that the basis of the decision is that sented by a promissory note must be a cerof uncertainty in the amount to be recov- tainty, continuing until the obligation is ered. In most of them, if not all, it is not discharged, either by payment or by the sufficient that the amount necessary to statute of limitations. So far as negotialiquidate the note on the day when due is bility means the quality of being transferacertain, and can be determined, but that ble by delivery, freed from adverse equities, certainty must continue till the obligation --and as a rule that is now the practical dif. is discharged. In the case of Jones v. Ra- ference between negotiable and non-negodatz, above cited, the court uses the fol- tiable paper,-that quality is lost in passlowing language, viz. : “We think the cer- ing the line of maturity. The immunity tainty requisite to the negotiability of the which comes with and attends negotiabilinstrument must continue until the obliga- | ity is withdrawn the moment the instrution is discharged, and that any provision ment crosses the threshold of dishonor. If which before that time removes such cer- certainty is required as a condition of netainty prevents the instrument being ne- gotiability, I can see no good reason for gotiable at all.” The same principle is holding that the certainty must be one enunciated by the supreme court of Michi- which will still exist after the instrument gan, in the case of Lamb v. Storey, 8 N. W. has lost all the incidents and advantages Rep. 87. The supreme court of the terri- of negotiability. I believe that if the tory of Dakota, in Garretson v. Purdy, 3 amount of money which the instrument Dak. 178, 14 N. W. Rep. 100, arrived at the represents at its maturity, and which will same conclusion, not only on account of then be required to discharge it, is plainly the uncertainty of such an instrument, but apparent on its face, it is all the certainty, also on account of the lack of the simplic- in that respect, contemplated by the rule ity required by our statute law in relation of the law merchant or by our Code, definto negotiable instruments. Applying the ing negotiable instruments, and that the principles above cited, are the instruments courts ought so to hold. I concur in the in question sufficiently simple, certain, and decision of this case only under the rule of unconditional to constitute them nego- stare decisis. tiable under the statutes ? Are they certain as to intent? The rate of interest is

(80 Mich. 77) not only uncertain, but depends upon the

TAYLOR et al. v. BAY CITY STREET RY. Co. contingency of promptor not prompt pay. (Supreme Court of Michigan April 11, 1890.) ment. The instruments must be construed

STREET RAILWAYS CHARTERS INJUNCTION either as meaning-—First, that they shall

PARTIES. bear 10 per cent. interest, but if paid 1. Defendant was organized under Act Mickie promptly when due, only 8 per cent. ; sec- 1855, (How. St. c. 94,) as amended by Laws 1861, p. ond, tbat they shall bear 8 per cent. inter- 11, which provided that companies might be organ.

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ized to construct street rallways in towns and er powers of control over such railways cities, and should have the exclusive right to use which were not conferred by the act of the same, on obtaining the consent of the munici: 1865, but it is unnecessary here to specify pal authorities. An amendment, in 1887, provided them. This prorision has been retained in that, after such consent, such municipal authoriLles should make no regulations whereby the fran- the charter ever since. December 14, 1864, chises so granted should be destroyed or unreason the common council of the village of Bay ably impaired. The charter of the village of Bay City passed an ordinance conveying to cerCity gave the common council the control of the tain persons therein named, who then prostreets, but made to mention of street railways posed to organize a corporation under the Act March 21, 1866, (Laws Mich. 1865, p. 735,)

in: | train railway act, above mentioned, the corporated the city of Bay City, and provided that all the acts and ordinances of the village should re right

to use all the streets in the village of main in forco until changed by the common

coun- Bay City or its successor, exclusive of every cil, and gave the latter power to grant charters to other person or corporation, for the purstreet.rallway corporations. The village common pone of constructing and operating railcounoll, in 1864, had granted to the persons who ways thereon. It provided that cars subsequently organized defendant the exclusive should be drawn by animals or by steam, right to operato railways in its streets for 30 years. made regulations for the running of trains, Held, that defendant's contract with the municipality was subject to the conditions of an amend etc., and provided that the common couninent (2 Laws 1800, p. 561, $ 98) empowering the cil, when deeming it for the interest of the councii to uuthorize the construction of street rail. village or its successor, might order the ways on condition that compensation should be construction of a railway on any street, made to the abutting owners.

and the corporation should build the same 2. Owners of separato lots abutting on a cer within two years after being notitied, and lain

street may properly join in a bill to restrain in default thereof the council might declare the construction of a railway thereon, based on the the

grant void as to such street. The

deground that it will injure their property.

fendant organized, as above stated, in FebAppeal from circuit court, Bay county.ruary, 1865, and during that season laid In chancery: George P. COBB, Judge. tracks, and commenced the operation of

Bill for injunction by Robbins B. Taylor its road, extending the same from time to and others against the Bay City Street time as the common council, and the reRailway ('ompany. Decree for defendant quirements of the public, demanded. July and complainants appeal.

6, 1887, the common council adopted resoT. A. E. Weadock, for appellants. Hatch lations requiring the defendant to construct & Cooley, for appellee.

a line of railway on Third street, and some

other streets mentioned. On June 5, 1888, GRANT,J. The defendant was organized the common council appointed a commitFebruary 21, 1866, under an act of the leg. tee to draft certain amendments to the islature providing for the organization of street railway ordinance. They had a contrain-railway companies, enacted in 1855. sultation with the proper officers of the How. St. c. 94. This act was amended in defendant, and on June 25th made a writ1861 by adding two new sections. Laws ten report stating that the defendant pro1861, p. 11. This amendment provided that posed to build a track on Third street, beIt should be competent for parties to or tween Waterstreet and Washington street, ganize companies under the act to con- and recommended that the proposition of struct and operate railways in and through the company be accepted. The report was the streets of any town or city in the state, adopted, and thereupon the defendant imand that they should have the exclusive mediately commenced the work of laying right to use the same, upon obtaining the the track. consent of the municipal authorities of such The complainants are the owners of septown or clty. A further amendment, in arate lots on Third street, and the build1867, provided that, after such consent was ings situated thereon, used for business given and accepted, such municipal au-purposes. Upon the commencement of the thoritles should make no regulations or work the complainants united, and filed conditions whereby the rights or franchises the bill in this case, claiming that the con. so granted should be destroyed, or unrea- struction of the road would be a damage sonably impaired, or such company or cor to their property; that this street was not poration be deprived of the right of con- wide enough for the business then being structing, mainiaining, and operating such done upon it; that no compensation had railway in the street in such consent or been paid or offered to any of the complaingrant named, pursuant to the terms there-ants, nor any steps taken to condemn a of. Bay City was incorporated by special | right of way through said street,-and act of the legislature in 1865, taking effect | prared for an injunction to restrain the March 21. LAW. 1865, p. 735. The charter construction of the road. A preliminary provided that the common council should injunction was granted by the court behave power to grant charters, licenses, and low, which was set aside upon the filing of privileges to companies, corporations or the answer. The case was then heard uppersons for the construction of street rail- on pleadings and proofs, the bill dismissed, ways on the streets of said city. In 1869 and complainants appealed. The testithe charter of Bay City was amended, 2 mony upon the question of damages is very Lawe 1869, p. 561. Section 98 of this act conflicting. It is unnecessary to discuss it provided that the common council should here; for, if the complainants are entitled have power to authorize the running of to recover damages, they must be left to railroads and street railways in the streets proceedings under the statute to determine of said cfty upon condition that the own- what damages, if any, they have individers of the lots adjoining, and persons in- ually sustained by the construction of the terested therein, should receive compensa- road. tion therefor. This act also conferred oth- 1. Complainants were alike affected by the construction of this road. They were essary, essential, nor indispensable to enalike interested to restrain its construc- able the muncipalcorporation to carry out tion. Their interests were therefore com- the objects and purposes for which it was mon. There was but one object to be ac- created. It is clearly within the power of complished, and no necessity existed for a the legislature to provide that street railmultiplicity of suits. The defendant was way corporations shall pay such damages not prejudiced by the joinder of complain- to owners of abutting property in front ants. We see no objection to parties join- of which they construct their road as this ing in a suit, the sole purpose of which is to construction will cause. It follows, thereobtain an injunction to restrain the com- fore, that the defendant accepted its charter mission of an act threatened by one party, subject to the right of the legislature to and alike injurious to the interests of all. prescribe conditions under which it might

2. The defendant contends that, by the thereafter obtain the use of the streets of ordinance of 1864, and the legislation au- the city for the construction of new lines. thorizing it, it acquired the fixed and vested The act of 1869, above mentioned, expressly right, for a period of 30 years, to use the limited the power of the council to authorstreets for the purpose of constructing and ize the running of street railways in the using a street railway without compensa- streets of the city upon the condition of ting adjoining owners, and that any subse- compensation to owners of the lots adquent legislation requiring it to compen- joining.

joining. The act of the legislature of 1881, sate in damages for any injuries sustained revising the charter of Bay City, provideá thereafter by the construction of new tracks that the method of arriving at the comis void as impairing the obligation of con- pensation to be paid to the lot-owners shall tracts. It becomes, therefore, important be the same as provided by the general railto determine the power conferred by the road laws of the state. The defendant legislature upon the common council of Bay was subject to the above provisions in makCity. The council can, of course, confer no ing the extension of its road now in disgreater right upon the defendant than is pute. authorized by its charter. Municipal cor- The conclusion above reached renders it porations derive their sole source of power unnecessary to determine the other quesfrom legislative enactments. The rule has tions raised in the case, and we pass no been long and unquestionably established opinion upon the liability of the defendant that municipal corporations are limited to at the common law. The decree must be those powers which are granted-First, reversed, with the costs of both courts, and in express words; second, necessarily in- decree entered here restraining the defendcident to the powers expressly granted; ant from the use of that part of its road exand, third, those which are essential and tending on Third street between Water and indispensable to the declared objects and Washington streets, until it has complied purposes of the corporation. 1 Dill. Mun. with the statute requiring condemnation Corp. § 89. By the village charter, the proceedings, but giving a reasonabe time common council was authorized to lay out for that purpose. The other justices conand establish, vacate, open, make, and curred. alter such streets as they might deem neces

(80 Mich. 396) sary for the public convenience. No men

KNIGHT V. LINZEY et al. tion is made in the act of train or street railways. The act incorporating the city

(Supreme Court of Michigan. May 2, 1890.) provided that all the acts and ordinances

FRAUD-RELIEF. of the common council of the village of Bay 1. It is not necessary that the maker of notes, City not inconsistent with the laws of this

to entitle him to redress against a person who destate shall remain in full force until changed

frauded him into giving them, shall contest them by the common council of the city; and the

before payment, in the hands of a presumably bona

fide holder, though he may have had information same section gives the power to grant from the person who defrauded him, or any other charters to street railway corporations. information short of a certainty, touching the These charters do not in express terms con- bona fides of the holder. fer upon the council any such power as is 2. A person who gives his notes in a transacnow contended for. If it exists at all, tion which he knows to be fraudulent, going into therfore, it must be by implication. The

it solely for the purpose of making money, and power to grant immunity to such corporations from legislative regulation and con

fide holder, has no redress against the other party

to the transaction, on whose representations and trol is an important one. A village of a suggestions he acted. few hundred inhabitants may in much less 3. It is not necessary that the maker of the than 30 years grow to a city of many thou- notes shall have been equally as guilty as the perbands. Bay City well illustrates this fact.

son who obtained and negotiated them. It is only What in the one would cause no damage

necessary that he shall have gone into the trans

action knowing it to be fraudulent. might in the other cause great damage. The village council cannot well provide reg- Watson & Chapman, for appellants. S. ulations and ordinances applicable to a S. Miner and H. L. Chandler, for appellee. large city. It is, therefore, highly important that the legislature should retain the MORSE, J. This is another Bohemian power to pass enactments for the control oat case, and comes here from the Shiaof these quasi public corporations suitable wassee circuit court, where the plaintiff to the changed state of affairs. Those who recovered judgment. The declaration is claim immunity from such control must be framed upon the same theory as those in able to point to the clear enactment of the the cases of Hess v. Culver, 43 N. W. Rep. statute establishing it. In thecase at bar, 994, and Pearl v. Walter, ante, 181, (present as already stated, no such express power term.) The plea was the general issue. can be pointed out; and it was neither nec- The same objection was made to the in.

7.45N.w.no.4-22

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troduction of proof under the declaration for what the note was given, then the as we have recently noticed in the last plaintiff, it before payment he had beea case above mentioned, and will need no reliably informed of facts which showed further attention.

thatsuch purchaser was not a bona fide one The principal points ralsed in the case for value, was not obliged to pay the same, relate to the charge of the court. It was and it became a voluntary payment, and alleged in the declaration that the plain- he could not recover of Linzey the amount tiff was induced to make two notes, one of such payment. This was given, with for $100 and one for $200, and that these the qualification annexed to the ninth renotes were sold before due, by the defend- quest. ant Linzey, to an innocent purchaser for These directions were, if anything, more value. It appeared upon the trial that the favorable to the defendants than the law $200 note was sold before due to one Ed- in. If the plaintiff, an innocent party, was ward Rose, and the $100 note to one Silas defrauded into giving these notes, he was Frye, and that the plaintiff had paid them not obliged, upon information obtained to these parties before bringing suit. Lin. from the party who had defrauded him, or zey sold the nute to Rose; and Davison, the any other information short of a certainty, note to Frye. Linzey testified that he to contest these notes in the hands of a told both Rose and trye, before they pur- stranger to the transaction of their incepchased the notes, that they were given for tion, and who would be presumably an inBohemian oats, and that he informed nocent holder of them. He was not complaintiff of this fact before he paid the pelled to take the chances of two lawsuits notes. Plaintiff, however, denies that to obtain relief from, or redress for, the Linzey told him anything of the kind; and fraud committed upon him. The court RON swears that he did not know the charged the jury, substantially, as re

, nute was given for Bohemian oats until quested by the defendants, that, if the plainalter he purchased it. Frye was not tiff entered into the transaction, knowing sworn. Reuben Johnson testified that he that in the end some person or persons heard Linzey tell Rose that the note was must be defrauded, and knew how the given for Bohemiau oats before Rose oats were bought and sold, then plaintiff bought It; and two other witnesses swore and defendants were engaged in a transthat they heard Linzey tell plaintiff that, action against public policy, and therefore If he was in Knight's place, he would not void; and the law would leave each of he in a hurry about paying the notes, as them, where they had left themselves, withRose knew what they were given for be- out redress, and the plaintiff could not refore he purchased. The counsel for the cover if he knew of the common fraud. defendants Insisted upon subnitting to This charge was correct, but it is claimed the jury the question whether or not Rose that the circuit judge entirely neutralized and Frye, or elther of them, were innocent the effect of it by stating subsequently in purchasers of the notes, and requested the his charge, as follows, it being the plaintiff's court to instruct the jury that, if they third request: "Knight had a perfect right found both of them not to be innocent to rely upon the statements of Linzey, and purchasers, and plaintiff knew it, his pay- was not bound to seek information elsement of the notes to them was voluntary, where, and Linzey was bound to make true and he could not recover, or, il either of statements to Knight; and, if he made thrm was not an Innocent purchaser, and false statements to Knight which were plaintiff knew it, he could not recover for material, and Knight relied upon such the note held by such one, and also sub- statements, and believed them, and parted mitted the following request, in addition: with his two promissory notes, and after"Ninth. The notes in question in this suit wards paid said notes, and Knight was were vold, and the purchasers thereof are not equally in fault with Linzey, then supposed to know for what they are giv- Knight would be entitled to recover. The en, and could not recover upon the notes court further said in his general charge, in of plaintiff until they first proved, by a reference to this subject: "I charge you preponderance of evidence, that they were that if two men, of equal knowledge, enter innocent purchasers of the same; and it into a contract, deliberately, for the purbecame the plaintiff's duty to make a fair pose of doing an act which is fraudulent, and diligent inquiry into the facts, and and the tendency of which is to contravene ascertain whether they were innocent pur- the principles of the common law, or in viochasers before he paid the notes, and, if lation of the statute, then each would be he paid them without making such in- equally in fault; and, so long as the conquiry, then he made the payment volun- tract remains unperformed, neither party tarily, and cannot recover in this case ; would be aided at law or in equity to its and, before he can recover, he must prove, enforcement. The law would leave them by a preponderance of evidence, that said where they have placed themselves. But Rose and Frye were innocent purchasers of if they were not equally in fault,--and this the notes." The court gare these requests, doctrine applies where the action is but qualified the last or ninth by adding: brought upon the contract,-if one of them "Unless the jury should find that there was influenced by the judgment of the was fraud practiced on the plaintiff in ob- other, did not act upon his own knowltalning the notes from him by Linzey and edge of the facts, and was ignorant of the Davison, and of which fraud plaintill had facts until he was informed by the other no knowledge or information at the time party of their existence, and relied upon ho gave bald notes." Counsel also request the judgment of the other party, and upon ed a charge as to each note, that, if they his statements of the facts communicated to found the purchaser (Rose or Frye) not him by the other party, and believed them an innocent purchaser, and that he knew to be true, and then relied upon the judg

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