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Action by Simon Greif and others, trading, as that applicable where one becomes inunder the firm name and style of L. Greif & debted to an executor or administrator of an Bro., against the James H. Wright Company. | insolvent estate. Such a debt cannot be set A receiver having been appointed for the de- off against a debt which he owed the defendant company, claims of various creditors ceased, for he owes the administrator or were filed, and exceptions were taken to the executor, while the estate owes, him. Davis claim filed by Elmer E. McDaniel. The mat- v. Industrial, etc., Co., 114 N. C. 321, 19 S. E. ter was heard on said claim and exceptions. 371, 23 L. R. A. 322 (1894). Order, entered, instructing the receiver to al Set-off is inadmissible, it is said, where the low a set-off by the claimant.

receiver represents the creditors in suits to Marvel, Marvel & Wolcott, of Wilmington, recover unpaid subscriptions to capital stock, for receiver. William S. Hilles, of Wilming- which constitute a trust fund (Davis v. Inton, for claimant.

dustrial, etc., Co., supra), or in suits to re

cover dividends illegally paid (Osgood v. OgThe CHANCELLOR. Elmer E. McDaniel den, *43 N. Y. 70).

But the case under consideration is a plain for several years bought goods of James H. Wrigut Company on credit, and the company

one of mutual debts arising in the usual owed McDaniel for board and care of a horse course of business, and the two claims are and wagon. These two running accounts were subject to legal as well as equitable set-off.

An order will be entered instructing the reoccasionally settled by allowing one against the other. On February 12, 1912, such a set-ceiver according to this opinion. tlement was made and mutually discharged, and each continued to become indebted to

(5 Boyce, 143) the other. Afterwards a receiver was ap- DRAPER v. DELAWARE STATE GRANGE pointed for the company on the ground of

MUT. FIRE INS. CO. its insolvency. At that time McDaniel owed

Sussex. to the company $419.36 and the company (Superior Court of Delaware.

June owed McDaniel $472.67. McDaniel claims

29, 1914.) the right to offset the amount the company 1. INSURANCE ($ 646*)-ACTIONS-BURDEN OF owes him against the amount he owes the PROOF. company, and the receiver, by petition setting For a party to recover on a contract of inforth the above facts, asks for instructions. surance, the existence of a valid contract and

the occasion that fixes liability thereunder must The counsel for McDaniel voluntarily ap- be proved. peared to the petition, and the question was

[Ed. Note.-For other cases, see_ Insurance, argued by him and by counsel for the re- Cent. Dig. 88 1555, 1645–1668; Dec. Dig. § ceiver.

646.*] [1] Before the appointment of the re- 2. INSURANCE (8 124*)–NATURE OF “CONTRACT ceiver the mutual debts could have been set OF INSURANCE. off under the statutes of this state. Revised

A "contract of insurance" against loss or Code, c. 106, § 21, p. 793. Did the appoint- and is an undertaking on the part of the in

damage to property is a contract of indemnity, ment by the court of a receiver of the corpo- surer, based upon sufficient consideration, to ration, based on its insolvency, change this pay the insured a certain sum of money upon right? The statute authorizes the Court of the happening of a certain contingency. Chancery to appoint a receiver for an insol

[Ed. Note. For other cases, see Insurance, vent corporation “on the application and for Cent. Dig. $8 172, 178; Dec. Dig. $ 124.* the benefit of any creditor or stockholder vol. 4, pp. 3674-3677.)

For other definitions, see Words and Phrases, thereof.” A receiver so appointed is not a purchaser for value without notice, but takes 3. INSURANCE (8 124*)—LIABILITY OF INSURER

-NECESSITY OF Loss. the assets of the company as a trustee and as

A fire insurance contract is essentially a a representative of the insolvent. The receiv: personal contract, and is not a contract to iner acquires no greater interest in the estate sure the property against fire, but one to inthan the corporation had. Its assets are sub- sure the owner of the property against loss by

fire; and hence a destruction of the property by ject to set-offs, liens and incumbrances as fire does not render the insurer liable, unless inthey exist at the time of the appointment. sured has thereby sustained a loss. 5 Pomeroy's Equitable Remedies, $ 187; High [Ed. Note.-For other_cases, see Insurance, on Receivers, $ 247; Van Wagoner v. Pater-Cent. Dig. $$ 172, 178; Dec. Dig. § 124.*] son Gas Co., 23 N. J. Law, 283; Scott v. Arm- 4. INSURANCE (8 630*)-ACTIONS ON POLICIES strong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. -PLEADING-INSURABLE INTEREST. Ed. 1059; Davis v. Industrial, etc., Co., 114

In an action on a fire insurance policy, N. C. 321, 19 S. E. 371, 23 L. R. A. 322 (1894); terest in the property existing at the inception

plaintiff must allege and prove an insurable inSteelman v. Atchley, 98 Ark. 294, 135 S. W. of the policy, or subsisting during the risk and 702, 32 L. R. A. (N. S.) 1060.

existing at the time of the loss; and hence a [2] Of course à debt due to the receiver, the date of the contract and at the time of the

declaration failing to allege such interest at as distinguished from a debt due to the com- loss was demurrable. pany, cannot be set off as against a debt due

[Ed. Note. For other cases, see Insurance, from the company. The reason is the same Cent. Dig. $S 1582, 1583; Dec. Dig. 8 630.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

5. INSURANCE (8 119*) - VALIDITY OF CON- / sured a certain sum of money upon the hapTRACT-NECESSITY OF INSURABLE INTEREST. pening of a certain contingency. The con

An insurance policy against loss of property in which the insured has no interest tingency, in the contract here sued upon, is amounts to a wager, and is void, as contrary to loss occasioned the plaintiff by fire to the public policy.

property described in the contract. [Ed. Note.-For other cases, see Insurance,

[3] A contract of insurance is essentially Cent. Dig. § 165; Dec. Dig. § 119.*]

a personal contract. Traders' Ins. Co. v. Action by Annie Y. Draper against the Newman, 120 Ind. 554, 22 N. E. 428. It is Delaware State Grange Mutual Fire Insur- not a contract to insure property against fire, ance Company. On demurrer to the declara- but is one to insure the owner of property tion. Demurrer sustained.

against loss by fire. Destruction by fire of Demurrer to declaration (No. 45, February surance is not the contingency upon which

the property described in the contract of interm, 1914).

the insurer promises to indemnify the inThe averments of the first and third counts of the declaration are to the effect sured. It is only when by fire the insured counts of the declaration are to the effect has sustained a loss that the insurer may that the defendant made a contract of in- be called upon to perform its contract of surance with the plaintiff whereby it under

indemnity. took and promised to "insure the plaintiff against loss or damage” resulting from de to sustain a loss to property by fire unless

[4] As it is quite impossible for the insured struction by fire or lightning of “certain prop-l he has an interest in the property, and as he erty in the said agreement or policy named and described,” and that thereafter the may recover only when he has sustained a property in said policy insured was dam

loss, it is now recognized that in actions upon aged or destroyed by fire,” without stating contracts of fire insurance, excepting in ceraged or destroyed by fire,” without stating tain classes, as in marine insurance, the exthat at the time of the fire as well as at the time of the making of the contract, the plain- of and the consequent loss sustained by the

istence of an insurable interest on the part tiff had an insurable interest in the property insured, must be shown and proved before insured and destroyed.

he can recover. In the second count there is an averment that the plaintiff “was interested in the in-claiming indemnity for its loss by fire must

The insurable interest in property of one sured premises,” but the relation of this aver- first be shown to have existed at the incepment to the context makes it apparent that the interest averred was an interest of the tion of the policy, or to have legally subplaintiff at the time of the inception of the U. S. 528, 25 L. Ed. 219), and then to have

sisted during the risk (Hooper v. Robinson, 98 silent as to an interest of the plaintiff in the existed at the time of the loss. property at the time of its destruction by in the property can be shown at the time of

[5] If no insurable interest of the insured fire.

The ground of demurrer is that while the its destruction, he, of course, can show no plaintiff has stated a contract of insurance loss, and if he shows no insurable interest between 'herself and the defendant and has at the inception of the contract or during the alleged the destruction by fire of the proper- risk, he fails to disclose a valid contract of ty described in the policy, she has failed to insurance. A contract of insurance is a show a right of recovery because she has contract of indemnity, and its object is to failed to disclose that she had an insurable avert a loss rather than to allow a gain. A interest in the property described therein, policy of insurance against loss of property either at the inception of the contract or at in which the insured has no interest, therethe time the property was destroyed.

fore, amounts to a wager, and wager policies Argued before WOOLLEY and RICE, JJ. are void upon the ground that they are con

trary to public policy. Robert G. Houston and Robert C. White, It becomes necessary, therefore, in an acboth of Georgetown, for plaintiff. John B. tion upon a contract of fire insurance, for the Hutton, of Dover, and Andrew J. Lynch, of insured to prove as facts, that he had an Georgetown, for defendant.

insurable interest in the property injured or

destroyed, at a time when under the terms of WOOLLEY, J., after making the above the contract, the insurer was legally bound statement, delivered the opinion of the court. to indemnify the insured for loss when it hap

[1, 2] In order for a party to recover on a pened, and that he also had an insurable incontract of insurance, two things are neces- terest in the property at the time of the loss. sary to be proven: First, the existence of a As these facts must be proved before recovvalid contract; and, second, the occasionery may be had, they must be averred before that fixes liability thereunder. A contract proof of them is allowed. Cooley's Briefs on of insurance against loss or damage to prop- the Law of Insurance, 85, 87, 135, 137, 138, erty is a contract of indemnity. It is an un- 139, 141, 143; 19 Cyc. 583, 591, 920; Freeman dertaking on the part of the insurer, based v. Fulton, etc., Co., 38 Barb. (N. Y.) 247; upon sufficient consideration to pay the in- Harness v. National Fire Ins. Co., 62 Mo.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


App. 245; Quarrier V. Peabody Insurance THE CHANCELLOR. The bill Co., 10 W. Va. 507, 27 Am. Rep. 582; Scott brought to set aside certain transfers of propv. Phonix Ins. Co., 65 Mo. App. 75; German erty made by Winifred Cottingham in her Ins. Co. v. Everett (Tex. Civ. App.) 36 S. W. lifetime, it being claimed that the transfers 125; Davis v. New England Ins. Co., 70 Vt. were made through fraudulent influences 217, 39 Atl. 1095; Vernon Ins. Co. v. Bank, 29 and that Winifred Cottingham was then menInd. App. 678, 65 N. E. 23; Hardwick v. tally incompetent to make the transfer. The State Ins. Co., 20 Or. 547, 26 Pac. 840; Chris- suit was by grandchildren of Winifred Cotman v. State Ins. Co., 16 Or. 283, 18 Pac. 466; tingham after þer death. See Mahoney v. Prussian National Ins. Co. v. Peterson, 30 Healy, 9 Del. Ch. 273, 81 Atl. 583. Ind. App. 289, 64 N. E. 102; Bryan v. Far [1] As the mental capacity of Winifred mers' Mutual Ins. Ass'n, 81 App. Div. 542, 81 Cottingham was in question, Mr. Biggs was N. Y. Supp. 145.

asked whether he had visited Winifred CotThe demurrer is sustained to all counts of tingham respecting the making of a will by the declaration.

her, and he declined to answer because his

knowledge was gained while acting as her (10 Del. Ch. 311)

legal adviser. No objection seems to have MAHONEY et al. v. HEALY et al. been made by counsel for the defendant to Court of Chancery of Delaware. June 23, the questions, or to their being answered. 1914.)

It was apparent that the purpose of the ques1. WITNESSES (8 199*) -- PRIVILEGED COMMU- tions was to elicit evidence as to the mental NICATIONS-ATTORNEY AND CLIENT.

condition of Winifred Cottingham. At the Upon a bill brought by the grandchildren hearing of the rule the question was argued of a decedent to set aside certain transfers of property made by her in her lifetime, on the as one of privileged communication between ground of undue influence and mental incapac- attorney and client. It seems to be well ity, an attorney was competent to testify wheth settled, however, that the rule of privilege er 'he had visited deceased as to the making of does not apply in litigation instituted after her will, as bearing upon her mental condition, since the rule of privilege does not apply in liti- the death of the client where all the parties gation instituted after the death of the client, claim under the client. Russell v. Jackson, and where all the parties claim under the client. 9 Hare, 387, 392, 68 Eng. Reprint, 558; Glover

[Ed. Note. For other cases, see Witnesses, Cent. Dig. $8 747, 748, 753; Dec. Dig. § 198.*i y. Patten, 165 U. S. 394, 17 Sup. Ct. 411, 41

L. Ed. 760; Kern v. Kern, 154 Ind. 29, 55 2. WITNESSES ($ 202*)—PRIVILEGED COMMUNI

CATIONS — TESTAMENTARY INSTRUCTIONS TO N. E. 1004; Downing's Will, 118 Wis. 581, 95 ATTORNEY.

N. W. 876; Norton v. Clark, 253 Ill. 557, 565, Instructions to an attorney as to drawing 97 N. E. 1079; Coates v. Semper, 82 Minn. a will are not privileged communications, in a 460, 85 N. W. 217; Layman's Will, 40 Minn. contest to establish the will.

[Ed. Note. For other cases, see Witnesses, 371, 42 N. W. 286; Phillips v. Chase, 201 Cent. Dig. $$ 756, 757; Dec. Dig. $ 202.*]

Mass. 444, 87 N. E. 755, 131 Am. St. Rep. 406; Bill by Teresa C. Mahoney and others 'Doherty v. O'Callaghan, 157 Mass. 90, 31 N. against Margaret A. Healy and others. Pe- E. 726, 17 L. R. A. 188, and note, 34 Am. St. tition for rule requiring a witness to appear Rep. 258; Wilkinson v. Service, 249 111. 146, and show cause why he should not be order- | 94 N. E. 50, Ann. Cas. 1912A, 41.

In the case of Glover v. Patten, 165 U. S. ed to answer certain questions. Rule made absolute.

394, 406, 17 Sup. Ct. 411, 41 L. Ed. 760, the

court said: See, also, 9 Del. Ch. 273, 81 Atl. 583.

"In a suit between devisees under a will, stateDuring the taking of testimony before the ments made by the deceased to counsel respectexaminer appointed in this cause, John ing the execution of the will, or other similar Biggs, Esq., an attorney at law, was produc-document, are not privileged.' While such com

munications might be privileged, if offered by ed as a witness and declined to answer cer- third persons to establish claims against an tain questions because his knowledge of the estate, they are not within the reason of the matter inquired about was obtained while rule requiring their exclusion, when the conacting in a professional capacity. Upon cer

test is between the heirs or next of kin.” tification by the examiner to the Chancellor

This was an action by children to establish of the testimony of the witness, the solicitor their rights as creditors of the estate of their

deceased mother. for the complainants presented a petition for a rule of this Court requiring the witness

In Russell v. Jackson, 9 Hare, 387, 68 Eng. to appear and show cause why he should not Reprint, 558, the court held that in testamenbe ordered to answer the questions. The wit- tary dispositions the very foundations on ness appeared gratis and assigned the above which the rule protecting confidential disstated reason for declining to answer the closures proceeds, seems to

be wanting, questions and stated that he desired to be where the contest is between parties, all of instructed as to how far his testimony should whom claim under the testator.

In Phillips v. Chase, 201 Mass. 444, 449, go.

87 N. E. 755, 131 Am. St. Rep. 406 (1909), it Charles W. Bush, of Wilmington, for com

was said: plainants. Hugh M. Morris, of Wilmington,

“Where the controversy is not between an for defendants.

estate and persons claiming against it, but is

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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to determine who shall take by succession the Washington Railroad Company. Demurrer property of a deceased person, and both par- to declaration overruled. ties claim under him, the reason for the privilege [of a communication made to an attorney! does

Summons case (No. 18, June term, 1913). not exist, and neither can set up a claim of Demurrer to declaration upon the grounds privilege against the other."

appearing in the opinion of the court. De[2] Instructions to an attorney as to draw murrer overruled. ing a will are not privileged communications Argued before WOOLLEY and RICE, JJ. in a contest to establish the will. Wilkin

Andrew J. Lynch and Albert F. Polk, both son v. Service, 249 Ill. 146, 150, 94 N. E. 50, of Georgetown, for plaintiffs. Whiley & Ann. Cas. 1912A, 41; Norton v. Clark, 253 Jones, of Georgetown, for defendant Ill. 564, 97 N. E. 1079; In re Downing's Will, 118 Wis. 581, 95 N. W. 876; Coates v. Sem

WOOLLEY, J. (delivering the opinion of per, 82 Minn. 460, 85 N. W. 217.

the court). This is an action upon several There are no cases. in Delaware which

contracts of carriage, with respect to which have a real bearing on the question here rais- the plaintiffs declare that they delivered to ed. In this case the rule of privilege does the defendant and the defendant accepted not apply. All the complainants are grand- from the plaintiffs certain of the plaintiff's' children of Winifred Cottingham and claim under her, and are seeking to set aside property to be by it pror iptly and safely car

ried and transported in several parts from transfers made by her. Margaret A. Healy, the town of Seaford in the state of Delaware the real defendant, is a daughter of Winifred to the city of Philadelphia in the state of Cottingham. If the transfer is set aside the Pennsylvania, and from the town of Seaford parties complainant and defendant will get in the state of Deleware to the town of Cumtheir shares of the property transferred. berland in the state of Maryland, and in Testimony as to statements and conduct of breach of which the plaintiffs charge that the Winifred Cottingham, if otherwise admissi- defendant neglected to promptly and safely ble in evidence, are not to be excluded be

carry the same to the points of destination cause the person to prove them is the one

as promised, to their damage in the amount who received his knowledge as her attorney, they seek to recover by this action. and in the course of his professional trans

The defendant demurs to the several counts actions with her. No sufficient reason has been shown why the questions should not rer contends that the transactions declared

of the declaration, and for grounds of demurhave been answered by the witness. The

upon are interstate commercial transactions, complainants are entitled to have the rule that to recover upon such transactions the made absolute.

plaintiffs must aver that they are the lauLet an order be entered accordingly.

ful holders of the bills of lading issued by

the defendant for the receipt and carriage of (5 Boyce, 146)

the property, that as the counts contain no BOWDEN et al. v. PHILADELPHIA, B. & such averments they are insufficient in law, W. R. CO.

and for authority for this contention cites a (Superior Court of Delaware.


June part of the amendment of section 20 of the 29, 1914.)

Interstate Commerce Act (Act Feb. 4, 1887, 1. CARRIERS (8 76*)—CARRIAGE OF GOODS-AC- c. 104, 24 Stat. 386 [U. S. Comp. St. 1901, p. TIONS FOR LOSS-PERSONS ENTITLED TO SUE. 3169], as amended by Act June 29, 1906, c.

In an action by a shipper to recover for 3591, $ 7, 34 Stat. 593 [U. S. Comp. St. Supr. loss of goods under Interstate, Commerce Act 1911, p. 1307]), which is as follows: Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, p. 3169), as amended by "That any common carrier, railroad or transAct June 29, 1906, c. 3591, § 7, par. 11, 34 portation company receiving property for transStat. 593 (U. S. Comp. St. Supp. 1911, p. portation from a point in one state to a point 1307), requiring any interstate carrier to issue in another state shall issue a receipt or bill a bill of lading, and making it and any other of lading therefor and shall be liable to the carrier to which it may be delivered liable "to lawful holder thereof for any loss, damage or the lawful holder thereof” for any loss, the hold- injury to such property caused by it or by any ing of the bill of lading is not a prerequisite to common carrier, railroad or transportation such right or action : but the statute extends company to which such property may be delivits remedy directly against the carrier to whom ered or over whose line or lines such property goods are delivered for shipment in behalf of may pass, and no contract, receipt, rule, or such shipper, or one who has succeeded to his regulation shall exempt such common carrier, rights.

railroad or transportation company from the [Ed. Note. For other cases, see Carriers, liability hereby imposed: Provided, that nothing Cent. Dig. $8 256–271, 363; Dec. Dig. g 76.*i in this section shall deprive any holder of such 2. CARRIERS (8 53*)-BILL OF LADING.

of action which he has under existing law." A bill of lading is not a contract of ship

If there is any doubt about the purpose ment, but evidence thereof. [Ed. Note.--For other cases, see Carriers,

and meaning of this provision of the act it is Cent. Dig. $$ 131, 165-167; Dec. Dig. $ 53.*] dispelled by the remainder of the provision, Action by James E. Bowden and others,

which is: trading in the firm name of J. E. Bowden & portation company issuing such receipt or bill

“That the common carrier, railroad or transCo., against the Philadelphia, Baltimore & of lading shall be entitled to recover from the

*For other cases see same topic and

91 A.-14

on NUMBER in Dec. Dig. & A. Dig. Key-No. Series & Rep'r Indexes

common carrier, railroad or transportation com- , lading being issued therefor. Certainly, if pany on whose line the loss, damage or injury a bill of lading was never issued to a shipshall have been sustained, the amount of such loss, damage or injury as it may be required per, the carrier's failure to evidence its conto pay to the owners of such property, as may tract in this form would neither withdraw be evidenced by any receipt, judgment or tran- from the shipper his right to recover, nor rescript thereof."

lieve the carrier from its liability to pay for [1] The manifest object of this provision of loss of goods delivered and received for shipthe statute is to enable one who contracts ment, under the right conferred and the liawith a common carrier for the carriage of bility fixed by the statute. The shipper's goods to a point in a distant state over its right to recover, in any event, depends upon lines and over the connecting lines of several his right of action, and his right of action common carriers, to recover damages for primarily depends upon his contract of shipinjury thereto directly from the carrier to ment. A bill of lading is not a contract of which the goods were delivered and by which shipment. It is the evidence of such a conthe bill of lading therefor was issued, with tract, and probably the best evidence of it. out being compelled to seek out and sue the We decline to say that it is the only evidence particular carrier that occasioned the injury. of it. It is, however, evidence, and being The legal effect of the provision, so far as evidence, we are of opinion that it is not reit relates to a carrier, is to impose upon it quired to be pleaded, though admissible at a legal liability to perform and complete by trial in proof of the contract pleaded. delivery at destination every contract of in The demurrer is overruled. terstate carriage into which it may enter for itself and for its connecting lines from which

(245 Pa. 97) escape can be made neither by rules nor regulations of its own or by the contract or


DEPOSIT BANK. consent of the shipper. The legal effect of the provision, so far as it relates to a ship

(Supreme Court of Pennsylvania. April 20,

1914.) per, is not to confer upon him a right to a new kind of contract, but to extend to him BANKS AND BANKING ($ 148*)—PAYMENT OP

CHECK-FORGED INDORSEMENT-NONSUIT. rather a new and an additional remedy upon

Where, in an action by the drawer of a the kinds of contracts he may theretofore check against the drawee bank which had paid have been able to make, by affording him an the check on a forged indorsement of the opportunity to sue and recover from the car- plaintiff

, it appeared that plaintiff did not noti

payee's name and had charged the amount to rier to which the property was delivered for fy the bank of the forgery until 43 days after shipment, under the liability imposed upon he must have learned of same, the court propthe carrier by the statute.

erly refused to take off a compulsory nonsuit. [2] Although the statute says “that any Banking, Cent. Dig. $$ 438-446, 451, 452; Dec.

[Ed. Note.--For other cases, see Banks and common carrier

receiving property Dig. § 148.*] for transportation from a point in one state to a point in another state shall issue a re

Appeal from Court of Common Pleas, ceipt or bill of lading therefor and shall be Lackawanna County. liable to the lawful holder thereof for any

Assumpsit by Henry Connors against the loss,” we conceive that by that language the Old Forge Discount & Deposit Bank and anstatute does not attempt to create a class of other, to recover the amount of a check paid shippers who alone may resort to the liabil- by defendant on forged indorsement. ity imposed, either by giving to the holder From an order refusing to take off nonsuit, of a bill of lading a right of action when plaintiff appeals. Affirmed. otherwise he has no cause of action, or by

Argued before FELL, C. J., and BROWN, making the mere holding of a bill of lading

MESTREZAT, ELKIN, and MOSCHZISa prerequisite to a right of action when oth- KER, JJ. erwise the owner of the property shipped has W. L. Houck and Morgan Kaufman, both a legal cause of action. In other words, we of Scranton, for appellant. R. L. Levy and construe the statute to extend its remedy C. H. Welles, both of Scranton, for appellee. directly against the carrier to whom goods are delivered for shipment, and in behalf of BROWN, J. Plaintiff's cause of action, as the shipper who delivered the same for ship- set forth in his statement of claim, is that, ment, or in behalf of one who, by some law- as one of the depositors of the defendant, a ful transaction, has succeeded to the ship-banking institution, he drew a check on it per's rights. Such a person may or may not which it paid and charged to his account on hold the bill of lading, and his failure to hold the forged indorsement of the payee; and he a bill of lading, upon proof of his right oth- seeks to recover on the averment that, when erwise to recover, will no more defeat that he discovered that the payee's indorsement right than will the mere possession of a bill was forged, he immediately notified the bank of lading confer a right of recovery upon one of the forgery. If the material averment otherwise without a right to recover. In fact that notice had been given to the bank by goods may be and frequently are delivered the appellant promptly upon his discovery of and received for shipment without a bill of the forgery had been supported by proof, the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Inder as

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