here against the property of his non-resident debtor as a resident creditor has, and so we held in Hibernia Bank v. Lacombe, supra.

"In that case Danforth, J., said: 'Once properly in court, and accepted as a suitor, neither the law nor the court administering the law, will admit any distinction between the citizen of its own State and that of another. Before the law and its tribunals there can ** * be no preference of one over the other.' The defendants cannot be treated as tortfeasors here for acts perfectly lawful where they were committed. If a judgment in Pennsylvania would have protected them, then the attachments will protect them, and there are no principles of law or equity with authorize any court in this State to restrain them from proceeding in an orderly and lawful way to reap the fruits of their vigilance."

A recent case in the New York Court of Appeals has settled certain doctrines in that State. It is the case of the Matter of Waite, decided October 6, 1885, 2 East. Rep. 47. The question presented was as to the right of an assignee in bankruptcy appointed in England, under the bankrupt laws of that country, to sue in the State of New York. The facts under which the question arose were as follows: H. & S. made a general assignment to W., of the firm of P. & W. The firm of P. & W. were preferred. Subsequently P. & W. were adjudged bankrupts under the English bankrupt law, and one Schofield appointed assignee, P. being a resident of London, and W. having submitted himself to the jurisdiction of the English bankrupt court. W., as assignee of H. & S., retained in his own hands as member of the firm of P. & W., the sum of $14,333.70 out of the moneys in his hands as assignee of the firm of H. & S. Schofield, on the accounting of W., as such assignee, appeared and claimed that W., as such assignee, must pay the amount to him. Schofield, as assignee in bankruptcy of the firm of P. & W., on the ground that the foreign bankruptcy proceedings had transferred the title of the firm of P. & W. to that money to Schofield, their assignee. The issue of law was thus squarely presented as to the effect in the State of New York of the English bankrupt laws, and proceedings instituted under them. It was conceded that the rights of creditors in New York, either domestic or foreign, were in no manner involved.

The court sustained the title of the assignee to the money, and held that he might recover it of W. The court said: We have not a case here where there is a conflict between the foreign trustee and domestic creditors. So far as appears, no injustice whatever will be done to any of our own citizens, or to any one else, by allowing the transfer to have full effect here. Indeed, justice seems to require that this money should be paid to the foreign trustee for distribution among the foreign creditors of the bankrupts. The effect to be given in any country to statutory in invitum transfers of property through bankruptcy proceedings in a foreign country has been a subject of mach discussion among publicists and judges, and unanimity of opinion has not been, and probably never will be, reached.

66

* * *

'We shall not enter much into the discussion of the subject, and thus travel over ground so much marked by the footsteps of learned jurists. Our main endeavor will be to ascertain what, by the decisions of the courts of this State, has become the law here. From all these cases the following rules are to be deemed thoroughly recognized and established in this State: (1) The statutes of foreign States can in no case have any force or effect in this State ex proprio vigore, and hence the statutory title of foreign assignees in bankruptcy can have no recognition here solely by virtue of the foreign statute; (2) but the comity of nations, which Judge Denio, in Peterson v. Chemical Bank,

said is a part of the common law, allows a certain effect here to titles derived under the powers created by the laws of other countries, and from such comity the titles of foreign statutory assignees are recognized and enforced here when they can be, without injustice to our own citizens and without prejudice to the rights of creditors pursuing their remedies here under our statutes; provided also that such titles are not in conflict with the laws or the public policy of our State; (3) such foreign assignees can appear, and subject to the condition above mentioned, maintain suits in our courts against debtors of the bankrupt whom they represent, and against others who have interfered with or withheld the property of the bankrupt."

A brief statement of the English law on the subject of involuntary transfers of property will not be out of place. It is diametrically opposed to the law in this country. The following rules are well established in Great Britain: (1) That an involuntary transfer under her bankrupt laws is operative in every jurisdiction, not only as against foreign, but also as against domestic creditors of the bankrupt. Story Confi. Laws, § 409. While this rule can have no force so far as foreign creditors are concerned in all countries where the English rule does not prevail; yet subjects of Great Britain are uniformly held to be bound by it, and have been compelled to account in the English courts for property received in foreign countries in opposition to it, and there are several cases where the creditor' was restrained from attaching the bankrupt's property in a foreign jurisdiction. In Hunter v. Potts, 4 T. R. 182, and Sill v. Worswick, 1 H. Bl. 665, the British creditor who had attached the bankrupt's property in a foreign country was compelled to account to the assignee. To same effect, Philips v. Hunter, 2 H. Bl. 402.

The

(2) On the other hand, an assignment in bankruptcy under foreign laws will be held to pass the title to the bankrupt's property in England, even as against a subsequent seizure of the property by an English creditor. Story Confl. Laws, § 409; Jollet v. Deponthieu, 1 H. Bl. 132, note; Solomons v. Ross, id. 131, note. same doctrine has been established in Scotland (Stein's case, 1 Rose Cas. Bankr. 462; Selkrig v. Davies, 2 Dow. 230; and in Ireland, Neal v. Cottingham, 1 H. Bl. 132, note). But it has received this qualification in the English courts, that the title of the foreign assignee will be held to be paramount in only those cases in which it appears that in the domicile of the debtor there is a bankrupt law in form or in substance. Story, § 415. GUY C. H. CORLISS.

NEGOTIABLE INSTRUMENT-FOREIGN BILL OF EXCHANGE-MATURITY OF ACCEPTANCE -DAYS OF GRACE.

SUPREME COURT OF THE UNITED STATES, NOVEMBER 16, 1885.

BELL V. FIRST NAT. BANK OF CHICAGO.*

A bill of exchange, dated March 4th, payable in London, 60 days after sight, drawn in Illinois on a person in Liverpool, and accepted by him due twenty-first May," without any date of acceptance, was protested for non-payment on the 21st of May. In a suit against the drawer on the bill, it was not shown what was the date of acceptance. Held, that the bill was prematurely protested, it not appearing that days of grace were allowed.

0. H. Horton, for plaintiffs in error. H. A. Gardner, for defendant in error.

BLATCHFORD, J. This suit was brought in the Circuit Court of the United States for the Northern District of Illinois, by the First National Bank of Chicago as indorsee, against the plaintiffs in error, copartners under the name of Humphrey Bell & Co., as the drawers of three bills of exchange. One was in this form:

"Exchange for £850.0.0.

"CANTON, ILL., March 4, 1878. "Sixty days after sight of this first of exchange (second and third unpaid) pay to the order of ourselves, in London, eight hundred and fifty pounds sterling, value received, and charge to account of "HUMPHREY BELL & Co.

"To Mr. W. D. Turner, Jr., Liverpool." Across the face of the bill, as sued on, these words were written:

"Accepted. Payable at Messrs. Barclay & Co., bankers, London. Due twenty-first May.

"W. D. TURNRR, JR."

The foregoing description applies to each of the other two bills, and the writing across its face, except that each was for £800, and one was dated March 11, 1878, and had in the writing across its face "Due thirtyfirst May," instead of "Due twenty-first May." The declaration was in assumpsit. Each of the defendants separately pleaded non-assumpsit, and there were various special pleas, on which issue was joined. At the trial the court directed the jury to find a verdict for the plaintiff for $10,937.13 damages, which was done, and for that amount, with costs, a judgment was rendered for the plaintiff, to review which the defendants have brought this writ of error.

After making certain necessary proof, the plaintiff offered in evidence the three bills, and a notary public's certificate of protest accompanying each. The bill of exceptions says: "The paper introduced and read in evidence as the certificate of protest of said £850 draft states that on the twenty-first day of May, 1878, at the request of the City Bank of London, the notary public exhibited the original bill of exchange, before copied, to a clerk in the banking-house of Messrs. Barclay & Company, bankers, London, where the said bill is accepted payable, and demanded payment of its contents, which demand was not complied with, but the said clerk thereunto answered, orders,' whereupon the said notary protested the said draft against the drawers, acceptor, and indorsers. The other two papers introduced as certificates of protest of the other two of said drafts are in the same form, and state the protest to be in each case the same day they are stated to be due in the acceptance thereof." When the drafts and certificates of protest were offered in evidence, the defendants objected to the admission of each of them, but the objection was overruled, and they were read in evidence, to which the defendants excepted.

No

At the close of the evidence on both sides, and before the charge, the defendants requested the court to instruct the jury as follows, among other things: "That the bills of exchange sued on in this case are what are known to the law as foreign bills; that upon such bills three days, called days of grace, are allowed by law after the day on which they become due or mature; that such a bill does not become due, in fact or in law, on the day mentioned on its face, but on the last day of grace; that unless such bills are duly protested on the last day of grace (or on the second day, if the last day be Sunday) such protest is not duly made, and the drawers and indorsers are thereby discharged from liability upon such bills; that if the jury believe from the evidence and under the instructions of the court that the bills of exchange sued on in this case were not protested upon the last day of grace (or upon the preceding day, if the last day fell on a Sunday), then the verdict of the jury must be for the defendants." The court refused to instruct as requested as to either of the above points, and the defendants excepted to such refusal. The court then charged the jury that the plaintiff was entitled to a verdict, and directed them to render a verdict for the plaintiff for $10.937.13 damages, which was done. To such a ruling and direction the defendants excepted. In the charge set forth in the bill of exceptions the views of the court on the questions embraced in the instructions so requested and refused were given in these words: "Several defenses are urged against the plaintiff's right to recover:

First. That the bills were prematurely presented for payment, and protested; that is, as I have said, the bills are payable sixty days after sight, they were accepted by Turner, and by the terms of the acceptances were made payable, the two first on the twenty-first, and the last on the thirty-first of May, 1878, and were protested for non-payment on the days on which they were respectively made payable. The defendants contend that as the law allows three days of grace on all bills of this character, they should not have been presented for payment, or payment demanded, until three days after the date named in the acceptance, and that therefore the protests are void and inoperative. * * * As to the first point made, that the bills were prematurely protested, which is equivalent to saying they were never protested at all, this defense raises a question of law upon undisputed facts. The bills each appear on their face to have been accepted by Turner, on whom they were drawn, payable, the two first on the twenty-first, and the last on the thirty-first of May, 1878, and were protested for non-payment on that day. There is no proof in the record nor on the bills, nor has any been offered tending to show when Turner first saw these drafts; that is, when they were presented to him for acceptance. The law applicable to these bills, giving sixty-three days from the time they were so sighted until they were due-that is sixty days and three days grace-is unquestioned, and admitted to be the law governing the rights of the parties to this paper. This acceptor saw fit to make his acceptance payable on a day certain, and I am of opinion that the court must hold that by the terms of this acceptance he intended to, and did make the bills payable without further days of grace on the days named in his acceptance; and therefore the bills were properly protested for non-payment on the twentyfirst and thirty-first days of May."

It is contended for the plaintiffs in error that the bills were prematurely protested, and the drawers were thereby discharged, because it does not appear that three days of grace were allowed, and that the court erred in ruling otherwise. It was said by Chief Justice Marshall in delivering the opinion of this court in 1828, in Bank of Washington v. Triplett, 1 Pet

25, 31: "The allowance of days of grace is a usage which pervades the whole commercial world. It is now universally understood to enter into every bill or note of a mercantile character, and to form so completely a part of the contract that the bill does not become due, in fact or in law, on the day mentioned on its face, but on the last day of grace. A demand of payment previous to that day will not authorize a protest or charge the drawer of the bill. This is universally admitted if the bill has been accepted."

The days mentioned in the acceptances in this case as those on which the bills would become due, are the twenty-first and thirty first of May, respectively, and there is nothing to indicate that those days are the last days of three days of grace, computing sixty-three days from the several days of the writing of the acceptances. We are of opinion that it must appear affirmatively, in the case of bills and acceptances like those in question, that the acceptor in designating the day of payment by the word " due," included the days of grace, or the day so designated cannot be regarded as the peremptory time for presentment, without any additional allowance. Blackstone says (2 Com. 469) that where an accepted bill is not paid "within three days after it becomes due (which three days are called days of grace)" it may be protested for non-payment.

In Chit. Bill, 374, it is said that where a bill is payable at a certain time after sight, it is not payable at the precise time mentioned in the bill, but days of grace are allowed; and (p. 376) that they are always to be computed according to the law of the place where the bill is due, which in England (p. 375) gives three days. Chancellor Kent says (3 Comm. 100, 101) that "three days of grace apply equally, according to the custom of merchants to foreign and inland bills and promissory notes;" and that "the acceptor or maker has within a reasonable time of the end of business or bank hours of the third day of grace (being the third day after the paper falls due), to pay." Baron Parke in Oridge v. Sherborne, 11 Mees. & W. 374, 378, states the rule very tersely in saying that days of grace are to be allowed in all cases where a sum of money is by a negotiable instrument made payable at a fixed day.

Acceptances like those in question, made upon bills payable so many days after sight, are of rare occurrence. But no reported case has been found in Englaud or in this country where such an acceptance has been held to have included, by mere force of its words ex vi termini, the days of grace. Some cases may here be referred to which go to support the conclusion at which we have arrived.

In Griffin v. Goff, 12 Johns. 423, in 1815, a promissory note, dated August 12th, was made payable on the 1st of December then next, and it was held that the indorser was discharged because payment was demanded of the maker on the 1st of December, and not on the fourth.

In Kenner v. Creditors, 7 Mart. (N. S.) 540, in 1829, a bill drawn at sixty days' sight was accepted by an acceptance which was dated September 12th, and made payable on November 14th, and was protested on the latter day. It was alleged that the holders had lost recourse on the drawers, (1) because the acceptance was made for payment on the sixty-third day after sight instead of the sixtieth; and (2) because it was protested on the day of payment instead of the last of the days of grace. But the court held that the 14th of November was the peremptory day of payment, and not the day from which the days of grace were to be reckoned, because it appeared from the face of the bill that the days of grace were included between the 12th of September and the 14th of November; that the acceptance was according to the tenor of the bill; and

that the protest was timely. The view taken was that a dated acceptance is not vitiated by the express designation of a day of payment, when that day is designated according to the tenor of the bill; and that when it appears, from a comparison of the tenor of the bill, the date of the acceptance, and the day designated for payment, that the latter is the third after the expiration of the days after sight, the day thus designated is the peremptory day of payment, the acceptance is according to the tenor of the bill, and the protest on the day expressly designated is timely.

In Kenner v. Creditors, 8 Mart. (N. S.) 36, another case, decided a week after the former one, the acceptances, which were of bills drawn at sixty days' sight, were not dated, but were made payable on a day named. Proof as to the day of acceptance was admitted, and that being proved, it was held that the case fell under the rule in the case in 7 Mart. supra, because it clearly appeared that both the days of sight and those of grace had been computed and included between the date of acceptance and that designated as the day of payment. These views were affirmed in another case in 1830. Kenner v. Creditors, 1 La.

120.

In McDonald v. Lee's Adm'r, 12 La. 435, in 1838, a note dated May 5, 1835, payable on the 5th of November, 1837, "without defalcation," was held to be payable on the 8th of November, 1837, and not before.

In Perkins v. Franklin Bank, 21 Pick. 483, in 1839, a bank post-note, dated December 7, 1836, was made payable in seven months, with interest "until due, and no interest after." On the margin were written these words: "Due July 7, 1837." It was held that the bank was entitled to grace on the note, and that the memorandum on the margin was not an express stipulation in the note that it should be payable without grace, within a statute allowing grace in the absence of such a stipulation. In delivering the opinion of the court, Chief Justice Shaw said: "Grace is an allowance of three days to the debtor to make payment beyond the time at which, by the terms of the note, it becomes due and payable." In regard to the memoraudum, "Due July 7, 1837," he said: "It shows when the note is to become due, and in this respect corresponds with the stipulation in the body of the note. The time it becomes due being fixed, the statute gives three days from that time for payment, under the term 'grace,' unless the contrary be expressly stipulated." A like decision was made in Mechanics' Bk. v. Merchants' Bk., 6 Metc. 13, in 1843.

In Bowen v. Newell, 8 N. Y. 190, in 1853, it was held that a negotiable draft on the cashier of a bank, dated October 5th, directing him to pay a specified sum on October 12th, could not be presented for payment, so as to hold the drawer and indorser, until October 15th.

In Cook v. Renick, 19 Ill. 598, 602, in 1858, it was said that by the common law, as adopted by the Legislature of Illinois, "a bill of exchange payable on a given day does not mature till three days after the day appointed on its face for its payment."

In Coffin v. Loring, 5 Allen, 153, in 1862, it was held that the maker of a note which is payable by installments, at future times certain, with interest, is entitled to grace on both the principal and the interest; and that the condition of a mortgage given to secure the payment of the same sums and interest, at the same times, is not broken until the expiration of the grace which is allowed upon the note. On the same principle it was decided in Oridge v. Sherborne, ubi supra, that the maker of a promissory note payable by installments on days named in the note was entitled to days of grace on the falling due of each install

ment.

The case of Ivory v. State Bank, 36 Mo. 475, in 1865,

398; State v. Hartfiel, 24 Wis. 60; Ulrich v. Commonwealth, 6 Bush (Ky.), 400; and in very many other cases in Massachusetts and other States. It is upon the ground that intention is not an essential ingredient of the offense, that the principal is held bound for the act of his agent in violation of law whilst pursuing his ordinary business as such agent. Being engaged in business where it is lawful to sell to all persons except such as are by law excepted, it is his duty to know when a sale is made, that it is to a properly situated person. Therefore it is his duty to trust nobody to do his work but some one whom he can safely trust to discharge his whole duty, and if he does not do so, the law holds him answerable.

The leading case of Rex v. Gutch, Moody & Malk., 433, cited in 1 Taylor's Ev. 827, states the law as it is now generally received. The prosecution was for a libel. Lord Tenterden says: "A person who derives profit from, and who furnishes the means for carrying on the concern, and intrusts the business to one in whom he confides, may be said to have published himself, and ought to be answerable."

In Queen v. Bishop, 5 Q. B. Div. 259; S. C., 29 Moak's Eng. Rep. 283, the defendant was convicted of receiv ing into her house two or more lunatics, not being a registered asylum or house duly licensed by law. The jury found specially that the defendant honestly and on reasonable grounds believed that the persons received into her house were not lunatic; though the jury found they were lunatic. The point being reserved was heard before Coleridge, Denman, Stephen, Pollock, and Field, all of whom affirmed the conviction, holding that such belief was immaterial. The court held that to hold otherwise would frustrate the object of the statute.

In Redgate v. Haynes, 1 Q. B. Div. 89; S. C., 16 Moak's Eng. Rep. 225, the appellant was charged with suffering gaming to be carried on upon her premises. She had retired for the night, leaving the house in charge of the hall porter, who withdrew his chair to a part of the hotel remote from the guests, and did not see the gaming. It was held that the landlady was answerable. The same principle was maintained in Mullins v. Collins, L. R., 9 Q. B. 292; S. C.,8 Moak's Eng. Rep. 351, where a servant of a licensed victualler supplied liquor to a constable on duty without authority from his superior officer. The court held that the licensed victualler was answerable, though he had no knowledge of the act of his servant. So also in a more recent case, in the Queen's Bench, Cundy v. LeCorq, 23 Am. Law Reg. 768, where a person was convicted under the Licensing Act of 1872, of having sold liquors to a drunken person, the question was reserved whether as it was proved that neither the defendant nor his servants knew the man was drunk, and there were no indications of his being intoxicated, and they had no means of knowing, he could be convicted. The court, through Judge Stephen, affirmed the conviction, holding that it was no defense against conviction, and was only a ground for mitigation in punishment.

In McCutcheon v. People, 69 Ill. 606, the indictment was for the same offense as that charged in this case, and the court lay down the law as we think it is, and ought to be, as the logical result of the immateriality in such case of criminal intent, as all the cases we have cited establish. The court says, "this construction imposes no hardship on the licensed seller. If he does not know the party, who seeks to buy intoxicating liquors at his counter, is legally competent to do so, he must refuse to make the sale. If he violates either clause of the statute, he must suffer the penalty of its violation. It is no answer to this view to say the licensee may sometimes be imposed on, and

made to suffer when he had no intention to violate its provisions. This is a risk incident to the business which he undertakes to conduct, and as he receives the gains connected therewith, he must also assume all the hazards. The court adds that it is immaterial whether the sale was made by the appellant, or an agent, and that if made by an agent the presumption is conclusive that he acted within the scope of his authority. When the agent, as in this case, is set to do the very thing, which and which only, the principal's business contemplates, namely, the dispensing of liquors to purchasers, the principal must be chargeable with the agent's violation of legal restrictions on that business. His gains are increased, and he must bear the consequences. The fact that he has given orders not to sell to minors only shows a bona fide intent to obey the law, which all the authorities say is immaterial in determining guilt. The court may regard such fact in graduating punishment when it has a discretion.

The cases therefore which hold that such orders will exculpate the principal are inconsistent with the rule, that in such case intent is immaterial. If intent is not an ingredient in the offense, it logically follows, that it must be immaterial whether such orders are given or not, for he who does by another that which he cannot lawfully do in person, must be responsible for the agent's act. In fact it is his act. If the principal makes such sale at his peril, and is not excusable, because he did not know or was deceived, for the reason that he was bound to know, and if he was not certain should decline to sell, or take the hazard, it cannot be that by setting another to do his work, and occupying himself elsewhere and otherwise, he can reap the benefit of his agent's sales, and escape the consequences of the agent's conduct. It would be impossible to effectually enforce a statute of this kind, if that were allowed; and no license would ever be suppressed. The law would soon become "a dead letter." That this has been the accepted law in this State, in the opinion of the Legislature, is clearly shown by the special act of 1876, chapter 273, for the city of Annapolis, whereby it is expressly provided that the seller of liquor to minors shall not be punishable if he has been honestly deceived as to the age of the party applying to buy, through the misrepresentations of the buyer; and the person making the purchase through misrepresentation is punishable instead of the seller; and further "that the act of any agent under this section shall not be binding on his principal, if the court or jury shall believe that said act was committed against the bona fide instructions of said principal."

It follows from what we have said, that we think there was no error in the rulings of the Circuit Court. Rulings affirmed, and cause remanded. Robinson and Yellott, JJ., dissented.

[To same effect see Dudley v. Sautbine, 49 Iowa, 650; S. C., 31 Am. Rep. 165.

NEW YORK COURT OF APPEALS ABSTRACT.

DISOBEDIENCE TO

CRIMINAL LAW - CONTEMPT DISTRICT ATTORNEY'S SUBPŒNA.-A subpoena issued by a district attorney in a criminal case is not "an order or a process lawfully issued or made by the court itself, within the meaning of 2 Rev. Stat 278, § 10, subd. 3, which declares that "willful disobedience of any process or order lawfully issued or made by it,' shall be punishable as a criminal contempt. The court alone can issue the process or make the order, a violation of which constitutes the contempt, and it cannot lawfully be issued or made by any intermediate authority. An indictment under said statute alleged