RECENT CASES. 229 of its orders or of the persons of its judges is an arbitrary one at best, and to stretch it, as here, in a time of disorders and almost panic in the imme- diate vicinity, would seem to show that the court hao been deserted by the calm judicial temper which should always characterize its proceedings. Some words of Sir George Jessel are much in point in this connection. " It seems to me," he said, " that this jurisdiction of committing for con- tempt, being practically arbitrary and unlimited, should be most jealously and carefully watched, and exercised, if I may say so, with the greatest reluctance and the greatest anxiety on the part of judges to see whether there is no other mode which is not open to the objection of arbitrariness and can be brought to bear on the subject. ... I have always thought that, necessary though it be, it is necessary only in the sense in which extreme measures are sometimes necessary to preserve men's rights, — that is, if no other remedy can be found." RECENT CASES. Agency — Implied Notice. — Plaintiff intrusted money to M. to deposit in de- fendant's bank, expecting to receive as security eitlier M.'s personal clieck or the defendant's check indorsed by M. But M. deposited the money to his own credit and received for it bankers' checks payable to himself, representing that he was plain- tiff's partner, and proposed to use the checks as memoranda in making a settlement. M. indorsed the checks to plaintiff, who received them in the idea that they repre- sented deposits made according to agreement. Subsequently, M. appropriated the money to his own use. Held, that plaintiff was chargeable with knowledge of the acts of M. as his agent, and could not recover. Henry v. Allen, 28 N. Y. Supp. 242, Brad- ley, J. dissenting. The hardship engendered in this case by a strict application of the rule imputing to the principal the knowledge of the agent is obvious; and while the opinion of the court may be correct, it would seem that the reasoning of the minority leads to a more equitable result. The text writers, whose words are cited to sustain the opinion of the majority, are referring to implied notice in its application to the rights of a third party as plaintiff, and the quotations therefore are not directly in point. It has become firmly grafted to the general rule of implied notice in other jurisdictions, that such notice will not be presumed where the agent is doing an independent fraudulent act. This has received ample confirmation in Massachusetts. Innerarity v. Bank, 139 Mass. 332 ; Allen v. R'y Co., 150 Mass. 206. The amount involved in the main case is suffi- cient to justify re-argument, and an authoritative statement from the Court of Appeals, determining the extent to which fraud on the part of the agent affects the doctrine of implied notice, will be awaited with interest. Bills and Notes — Action begun on last Day of Grace. — This was an action by the holder against the acceptor. On the last day of grace the bill was presented at the bank, where by the acceptance it was made payable, and at a later hour on the same day plaintiff issued the writ in this action. Held, that the holder cannot sue the acceptor until the expiration of the last day of grace, although he could treat this as a dishonor and give notice to the drawer or indorser. Kennedy v. Thomas, L. R. [1894] 2 Q. B. 759. The English Court of Appeal professes to follow certain cases in this holding, — Wells V. Giles, 2 Gale, 209, and Leftley v. Wills, 4 T. R. 170, — and neither of these necessarily stands for this view. In Wells v. Giles it does not appear that there was any demand at all, so the case could well stand on that. In Leftley v. Wills Lord Kenyon does rest the case on this ground, — /. e. that the acceptor has the whole of the last day in which to discharge the obligation ; but, as Buller, J. shows, the case might well have been decided as it was, on the ground that the demand was not made at a reasonable time, — within business hours. It seems, therefore, that the court was not bound by authority, and that, on principle, the view adopted by the court is erroneous. The custom of merchants is that the holder shall determine reasonably at
