his successor in office, and did not belong to his administrator. See, also, State v. Wilson, 113 Ind. 501, 15 N. E. Rep. 596. As to the suggestion that such loaning of the township funds by the former trustee was embezzlement, the court expressly refused to make any decision, saying: "That is a question not now in any manner before us, and concerning which we are not now called upon either to intimate or to decide anything." In the case now under consideration, the appellee having violated an express statute in loaning the money in his hands as county treasurer, and the question being before us for decision, the holding must be that he can maintain no action based upon his own illegal act. This has been the invariable decision of all courts. "There is, to my mind," said Chancellor Kent, in Griswold v. Waddington, 16 Johns. 438, at page 486, "something monstrous in the proposition that a court of law ought to carry into effect a contract founded upon a breach of law. It is encouraging disobedience, and giving disloyalty its unhallowed fruits. There is no such mischievous doctrine to be found in the books." See, further, Insurance Co. v. Forsyth, 2 Ind. 483; Siter v. Sheets, 7 Ind. 132; Daniels v. Barney, 22 Ind. 207; State v. Sims, 76 Ind. 328; Case v. Johnson, 91 Ind. 477; Railway Co. v. Buck, 116 Ind. 566, 19 N. E. Rep. 456; Leonard v. Poole, 114 N. Y. 371, 21 N. E. Rep. 701; Bowman v. Phillips (Kan. Sup.), 21 Pac. Rep. 230; 1 Pars. Cont. 458; Broom, Leg. Max. 738.

But counsel for appellee finally contend that in cases such as that before us public policy requires that, notwithstanding the violation of the statute, the contract based upon such violation should nevertheless not be declared void. Many authorities, also, including cases in this and other courts, are cited in support of such contention, -among them, 1 Story Eq. Jur. §§ 298-300; 1 Pom. Eq. Jur. § 403, and notes; Lester v. Bank, 3 Am. Rep. 211; Deming v. State, 23 Ind. 416; Scotten v. State, 51 Ind. 52; State v. Levi, 99 Ind. 77. In these cases, however, other interests than those of the parties to the contract were concerned; and it was to protect such other interests, and not for the benefit of those who had violated the law, that the contracts were enforced. In Lester v. Bank, supra, a Maryland case chiefly relied upon by counsel, the president of the bank had borrowed from its funds, contrary to a statute. Recovery under the contract was enforced, not to shield the officials who had violated the law, but for the protection of the stockholders, depositors, and other creditors of the bank. In the Indiana cases cited, county auditors, in making loans from the school fund, had violated provisions of the statute. Public policy required that these contracts should be enforced, not in favor of the auditors, but for the protection of the school fund. It would have defeated the very purpose of the law to have done otherwise. These cases are not analogous to the case at bar. Here the action was not brought in the name of the county, nor did the appellee pretend to sue in his capacity as county treasurer, even if such suit by him could in any case be maintained. Rev. St. 1894, § 7820 (Rev. St. 1881, § 5735); Vanarsdal v. State, 65 Ind. 176; Caldwell v. Board of Com'rs of Fayette Co., 80 Ind. 99. Neither is there anything in the record from which it can be known that the county was pursuing the funds belonging to its treasury, or seeking to recover them from the appellants. No public interest in the result of this action is therefore shown, nor any reason why public policy would be served by a recovery on the contract sued on, in favor of the appellee. We have no doubt that, if the county were shown to be inter

ested in the recovery of the money here sued for, it might by the proper officers, have been admitted as a party plaintiff in the original action. In such case, much of what is said by counsel, as also the authorities cited, would be in point to show that, on grounds of public policy, a recovery ought to be had on the debt sued on in favor of thecounty. The faults, or even crimes, of public officials, ought not to be allowed to interfere with the right of the people, through their several municipal and political organizations, to recover the moneys raised from them by taxation, and wrongfully converted or misapplied by such officials. In whosesoever custody the money of the county is found, it may be reached for the benefit of the county. Vigo Tp. v. Board of Com'rs Knox Co., 111 Ind., at page 178, 12 N. E. Rep. 305. The judgment is reversed.

BANKS AND BANKING - DRAFTS-COLLECTION.-The Supreme Court of Wisconsin decides in Canterbury v. Bank of Sparta, 64 Ν. W. Rep. 311, that where a draft was sent to defendant bank for collection and defendant, at the request of the drawee, advanced the funds for payment thereof and mailed a draft to the payee stating that it was "in payment of the draft" sent to it for collection, defendant, on discovering the insolvency of said drawee, could not intercept the letter and destroy the draft so mailed. The court says:

It may be conceded that the vendor of negotiable paper has the right of stoppage in transitu to the same extent as the vendor of other species of personal property. Here the La Crosse bank discounted the plaintiff's draft on W. E. Coats & Co., and forwarded the same to the defendant for collection. The defendant was under no obligation to pay that draft, especially as the account of W. E. Coats & Co. at the defendant bank was then considerably overdrawn. Nevertheless, the defendant, on the request of the managing agent of W. E. Coats & Co., whose authority is not questioned, made its own draft on the Chicago bank for the amount, payable to the cashier of the La Crosse bank, and sent the same in a letter by mail to the cashier of the La Crosse bank "in payment of draft on W. E. Coats & Co.," and that letter, with the draft inclosed, reached La Crosse in the regular course of mail. Undoubtedly, the defendant, in making its draft on the Chicago bank, gave a corresponding credit to W. E. Coats & Co. on the faith of their solvency; but it did so voluntarily, and for their accommodation, and without being induced to do so by any fraud or mistake of fact. While the defendant retained the actual or constructive possession of that draft, it could undoubtedly withhold its application in payment of the draft on W. E. Coats & Co.; but if, by sending the draft by mail to La Crosse, it parted with such possession, and vested the title to the draft in the La Crosse bank, then, manifestly, it lost all rightful authority to take the same from the mail. In thus mailing and sending the draft the defendant acted as the agent of the La Crosse bank. Such mailing of the letter inclosing the draft was, in legal effect, a delivery of the draft to the La Crosse bank. 1 Rand. Com. Paper, § 218; 1 Daniel, Neg. Inst. § 67; Buell v. Chapin, 99 Mass. 594; Kirkman v. Bank, 2 Cold. 397; Mitchell v. Byrne, 6 Rich. Law, 171; Sichel v. Borch, 2 Hurl. & C. 956; Funk v. Lawson, 12 Ill. App. 229. The mere fact that after the draft was so sent by mail the defendant ascertained that W. E. Coats & Co. had failed, and hence that it had injudiciously given them further credit to the amount of the draft, did not authorize the defendant to stop payment of the draft, or take it from the mail. The draft was not transmitted' to W. E. Coats & Co., but was transmitted by them, through the defendant, to the bank at La Crosse. In support of the views expressed, see Bank v. Richardson, 101 Mass. 287; Bank v. Mitchell, 9 Metc. (Mass.) 297; Pratt v. Foote, 9 N. Y. 463; Whiting v. Bank, 77 N. Y. 363; Eaton v. Cook, 32 Vt. 58. The judgment of the circuit court is 'reversed, and the cause is remanded, with direction to enter judgment against the defendant for the amount of the verdict directed in favor of the plaintiff, with interest and costs.

RELEASE OF ONE DEFENDANT EFFECTPAROL EVIDENCE-FRAUD.- According to the Supreme Court of Colorado in Denver & R. G. R. Co. v. Sullivan, 41 Pac. Rep. 501, where two railroad companies are jointly and severally liable for injury to a person, a release by such person of his right of action against one of the companies releases the other, and that where a written instrument on its face shows that it is a release of a cause of action against a railroad company for injuries, parol evidence to show that it was given as a receipt for wages is inadmissible. It was also held error on the part of the lower court, under the facts in evidence, to submit to the jury the question of fraud in the procurement of the release. The court says:

It is manifest from the instructions under which the evidence was submitted to the jury, and the special findings, that the derailment of the car upon which appellee was standing at the time was occasioned by a defect in the track; and hence the negligence upon which the appellee bases his right of recovery against the appellant would also constitute a cause of action against his employer, the Union Pacific Railway Company, it being the duty of that company, as well as of the appellant, to see that the road over which it ran its cars was safe and in good repair. The same duty devolved upon it in this respect as though it owned the track. The rule upon this subject is thus stated in Stetler v. Railway Co., 46 Wis. 504,1 N. W. Rep. 112: "As between itself and its employees, who were directed to use the road in the business of the defendant company, such employees have the right to treat the road as the company's road, and the company, as to its employees, was bound to see that such road, whilst so used for its benefit by such employees, was in such condition as not to unnecessarily endanger their lives or limbs." To the same effect are Railroad Co. v. Ross, 142 111. 9, 31 Ν. Ε. Rep. 412; Railroad Co. v. Kanouse, 39 Ill. 272; Railway Co. v. Peyton, 106 Ill. 534; Elmer v. Locke, 135 Mass. 575; Snow v. Railroad Co., 8 Allen, 441. It therefore follows that his cause of action was a joint one against both companies, or a several one against either. In other words, both companies were liable for the injury, and a release that would bar appellee's right of action against one would inure to the benefit

of the other, and be equally available as a defense to the action. The court below adopted this view, and correctly held that if the release in question was binding as between the appellee and his employer, the Union Pacific Railway Company, it was also a discharge of appellant from all liability. The doctrine is thus announced in Cooley, Torts (2d Ed.) p. 160: "It is to be observed in respect to the point above considered, where the bar accrues in favor of some of the wrongdoers by reason of what has been received from or done in respect to one or more others, that the bar arises, not from any particular form that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent. Therefore, if he accepts the satisfaction voluntarily made by one, that is a bar as to all." Tompkins v. Railroad Co., 66 Cal. 163, 4 Pac. Rep. 1165; Seither v. Traction Co., 125 Pa. St. 397, 17 Atl. Rep. 338; Chapin v. Railroad Co., 18 III. App. 47; Brown v. City of Cambridge, 8 Allen, 474; Leddy v. Barney, 139 Mass. 394, 2 N. E. Rep. 107. In the latter case it is held that a release given to one who is not in fact liable operates as a release to all who may be liable. The court say: "The rule that a release of a cause of action to one of several persons liable operates as a release to all applies to а геlease given to one against whom a claim is made, although he may not be in fact liable. The validity and effect of a release of a cause of action do not depend upon the validity of the cause of action. If the claim is made against one and released, all who may be liable are discharged, whether the one released was liable or not." Therefore, the controlling question in this case is whether the validity of the release relied on was successfully assailed upon the ground that it was fraudulently procured. In so far as the evidence introduced on this issue tends to show that the release was given as a receipt for wages, merely, it was incompetent, since the writing, in plain and unambiguous language, states that the $108 was paid in full settlement of the claim against the Union Pacific Railway Company on account of the injuries complained of, and in consideration of such payment expressly releases the company from any action therefor; and oral testimony is inadmissible to contradict or vary its terms. The only testimony, therefore, that was admissible, was the alleged statement of Manchester that he had been advised by his attorney that the Union Pacific Railway Company was not liable, and, "according to the reports sent in by the trainmen, the accident was caused by a lip on the rail, consequently the Rio Grande was responsible for the condition of the track." Laying aside the testimony of Manchester, who testified that he made no such statement, and assuming that the testimony of appellee is uncontradicted, and that Manchester did so state to him, and that it was true that he had been so advised, we are at a loss to perceive wherein that statement constitutes in any sense a fraud. It was at most a statement of opinion as to the legal liabilty of the Union Pacific Railway Company, and there was nothing in the relation of Manchester towards him that would imply any undue influence, or that should induce him to accept what he may have said without question. "It has been more than once held that it is error to submit a question of fraud to the jury upon slight parol evidence to overturn a written instrument. The evidence of fraud must be clear, precise, and indubitable. Otherwise it should be withdrawn from the jury." Railroad Co. v. Shay, 82 Pa. St. 198; Stine v. Sherk, 1 Watts & S. 195; [Dean v. Fuller, 40 Pa. St. 474. It appears from the uncontradicted evidence

contract so as to substitute for "one-half of balance" the words "all that is delivered on or before the 1st of July, next," so that defendant was to give plaintiff "a note for all that is delivered on or before the 1st of July next, payable at bank in four months," ignoring the proposed payment on account by the deed to the land. On the 1st of July, the timber delivered did not amount to the

Under this guaranty plaintiffs, Bell & Grant, assumed to give Thorn credits for considerable sums, not only with Messrs. Archias & Co. at Marseilles, but with other firms at Cadiz, Gibraltar and Smyrna, and directly to Thorn himself. Upon Thorn's becoming insolvent, plaintiffs brought suit against the guarantor, on bills of exchange, drawn upon these various credits. The court below di

was no "balance." Defendant refused to give a note for all that had been delivered, and plaintiff brought his action. The court (Shaw, C. J.), disregarding the express undertaking of the amended contract "to give a note for all that is delivered on or before the 1st of July next," held that the "leading and primary purpose" of the contract "was an exchange of a quantity of timber at fixed prices for a tract of land at a fixed price, and the payment of the residue in cash notes on time. In the course of the opinion he says: "One good rule of construction" is "to read the whole instrument through, and applying it to the subject matter, to ascertain the leading scope and purpose of the parties in making the contract; and when there is difficulty in carrying out all the details, as contemplated by the particular clauses to construe all such particular clauses so as best to promote and accomplish the primary and leading purpose of the contract.'""

This rule will not be carried so far, however as to ignore the general language, and in the leading case of Bell v. Bruen, decided by the Federal Supreme Court we have an instance where the general language is held to properly control the more particular expressions. There the contract sued on was a guaranty contained in the following letter: "Messrs. Bell & Grant, London. Dear Sirs: Our mutual friend Mr. Wm. H. Thorn has informed me that he has a credit for £2,000 given by you in his favor, with Messrs. Archias & Co. to give facilities to his business at Marseilles. In expressing my obligations to you for the continuance of your friendship to this gentleman I take occasion to state that you may consider this, as well as any and every other credit you may open in his favor, as being under my guarantee. I am, dear sirs, your friend and servant, M. Bruen."

7 Warren v. Merrifield, 8 Metc. 96.

8 1 How. 169, 180.

that the letter of guaranty, properly construed, only embraced credits opened for Thorn with the house of Archias & Co., Marseilles. The Supreme Court of the United States reverse this decision and held that the guaranty included "any and every other credit" defendants might open in Thorn's favor, whether with Archias & Co. or with any and every other person; that the case does not fall within the rule of construction of bonds, with conditions for the performance of duties preceded by recitals, viz: that where the undertaking is general it shall be restrained and limited within the recitals; that that rule of construction is not fairly applicable to mercantile documents such as letters of guaranty; but that such instruments should receive the construction which under all the circumstances of the case ascribes the most reasonable, probable and natural conduct to the parties; that "the general words not being restricted by the recital they fairly import that Matthias Bruen was bound to Bell and Grant for the credits the opened in favor of Wm. H. Thorn with Archias & Co; and for credits also they opened in favor of Thorn with and every other person; that to hold otherwise would be to reject altogether the general words "as well as any and every other credit" as unmeaning and useless.

§ 3. Scope and Purpose of Recitals. - Recitals may be resorted to for the purpose of explaining the subject-matter of the contract, and the general intentions, but not for the purpose of enlarging a specific undertaking within the scope of the general intentions or of the subject-matter. Or, as said in Chitty on Contracts, 10 "where the words in the operative part of a deed or agreement are of doubtful meaning the recitals may be used as a test, to discover the intention of the par.

9 Miller v. Wagenhauser, 18 App. 11. See, also, Covington v. McNickle, 18 B. Mon. 262; Torrance v. Mo Dougal, 12 Ga. 256; Hare v. Horton, 5 B. & Ad. 715. 10 (12th ed.) 1893, p. 139.

effective not by controlling the construction of the operative parts of the instrument, but by way of estoppel. Thus in an action of covenant on a deed which sets out, by way of recital, that plaintiff had invented certain improvements in the construction of looms, and had patented them, and had agreed with defendants to permit them to use such inventions for a part of the life of the patent, where plaintiff alleges that he covenanted to permit defendants to use such inventions and defendants, in consideration of the grant covenanted to perform the agreement on their part; and alleges a breach, non-performance, it was held that defendants were estopped to plead that the invention was not a new invention and that plaintiff was not the first or true inventor of said improvements. 15 So, where the suit was upon a bond, the condition of which recited that by lease, of even date therewith, certain premises were let to defendant for the yearly rental of £170 and the condition of the bond was stated to be the payment of the rental and the performance of the covenants of the lease, and it appears that the lease when set out, showed the rent reserved to be £140 it was held that defendant was estopped from pleading either (a) that there was no such lease as that mentioned in the condition, or (b) to set out the lease showing the rent to be £140 and to show that he has performed the contract by paying the rent there stipulated on the ground that that would be the same thing as saying that there was no such lease as stated in the bond.16 In a Missouri case where both parties recited, in a deed conveying an unconfirmed claim to land, without warranty of title, that the grantors were the owners of the claim as the only surviving heirs and devisees of the original claimant, they are both estopped from denying the truth of such recital.17 Tyler v. Hall,18 where the grantor in a deed recited his title as being "all my right, title and interest which I inherited from my father as one of three children and heirs at law in and to" the land, he was held estopped to claim the land, when sued in ejectment by the grantee, under an unrecorded deed from

In