dolph on Commercial Paper, sec. 1148. Hence, if necessary in this case, the 16 question whether defendant had waived the laches was for the jury to determine. The general charge could not, therefore, have been predicated on the want of evidence of demand, protest, or notice of dishonor. Nor could it have been properly based on any want of consideration to support the contract to indorsement. It was not necessary that any consideration should have moved directly to the defendant. The consideration moving to Gellhorn, the payee, was sufficient to uphold not only his promise, but also the contemporaneous contract of the indorser: Marks v. First Nat. Bank, 79 Ala. 562; 58 Am. Rep. 620. There remains to be considered, then, only the question whether the evidence that the draft had been paid by the drawee was so undisputed as to justify the general charge.

The testimony as to what occurred in New York at the time of and subsequent to the presentment of the draft to the drawee is very meager, and leaves to inference many facts which it was certainly in the power of the plaintiff to prove by positive evidence. It appears from the testimony of plaintiff's cashier that when the draft was sent by plaintiff to its correspondent, the National City Bank of New York, for collection, the amount thereof was entered to its credit in that bank, and that a week or ten days afterward it "came back unpaid." When asked directly whether plaintiff was charged with the amount credited to it, he only replied, "The check came back to us, and when it is returned it means it is unpaid." The cashier also testified that "it is the custom of banks in returning or sending back a check to charge it to your account when it is returned to you. It is the custom of banks to return refused checks." The draft, when offered in evidence, had stamped on the back, "Note teller. PAID. Feb. 27, 1892. National City Bank, N. Y.," with pen and ink marks drawn through the words, and there was a peculiar cutting of the paper in the manner usually employed by the drawee bank to cancel a paid draft. Whether the draft was actually presented to the drawee and payment refused, or whether payment was made to the National City Bank and afterward refunded upon the discovery of the forgery and charged back to the plaintiff, does not appear by positive testimony, but must be inferred, if found, from the facts stated and the fact of 17 the possession of the draft by the plaintiff. Conceding the defendant's theory that the draft was actually presented and paid, we think the above testimony, aided by certain presumptions which the law indulges from the facts stated,

was sufficient to raise an issue of fact as to the payment that should have been submitted to the jury. As between the drawee, the National Park Bank, and the National City Bank, holding the draft for collection as the plaintiff's agent, if the former in fact paid the draft to the latter, the payment, assuming the draft to have been raised as alleged, would be treated in law as made under a mistake of fact, and if the latter had not in fact paid the money over to the plaintiff, but had merely credited its account with the amount, it could have been compelled to refund the money to the drawee, and, having refunded it, could have charged back to plaintiff the amount credited: Birmingham Nat. Bank v. Bradley, 103 Ala. 119; 49 Am. St. Rep. 17; National Park Bank v. Seaboard Bank, 114 N. Y. 28; 11 Am. St. Rep. 612; United States Nat. Bank v. National Park Bank, 129 N. Y. 647; 3 Randolph on Commercial Paper, sec. 1486. And whatever it could have been legally compelled to do, it had the right to do without awaiting compulsion. In the ordinary course of banking business, the draft, having been paid, would have been surrendered to the drawee. But we find it in the possession of the plaintiff, stamped paid, not by the drawee, but by the plaintiff's agent for its collection, and mutilated in the manner employed by the drawee to cancel paid drafts. What inferences and legal presumptions arise from these facts? It is well settled that if a note or bill is found in the possession of one who appears to have previously transferred it, the legal presumption is that it has been regularly returned to him and that the title is in him, and the burden of showing the contrary is on the defendant: Anniston Pipe Works v. Mary Pratt Furnace Co., 94 Ala. 607; Price v. Lavender, 38 Ala. 391; Herndon v. Taylor, 6 Ala. 461. Conceding that the drawee paid the draft upon presentment, it could not have been regularly returned to the plaintiff, and the title could not be in the latter, in the ordinary course of business, unless, upon the discovery of the forgery, the National City Bank had refunded the money to the drawee, received the draft in return, charged back to plaintiff the amount credited, and returned the draft to 18 it. The just inference from the facts proven, aided by the legal presumption, is that all these things were done. In the absence, therefore, of proof sufficient to overcome the inference and presumption, the case presented is not different in any respect from what it would have been if the plaintiff had presented the draft directly to the drawee and payment had been refused. It follows that there was sufficient evidence of presentment, nonpayment, protest, if protest was neces

sary, and notice of dishonor, to justify the submission of these issues to the jury, and that the court below erred in giving the general charge in favor of the defendant.

But we are of the opinion that the evidence would not justify a recovery on the common counts for money had and received and money paid. Rivers is not shown to have had any beneficial interest in the draft, as contended by counsel, and no part of the proceeds of the draft was paid to him by the bank. He was simply a creditor of Gellhorn, having loaned him money and taken mortgages and indorsed notes as security, and was innocent of any connection with, or complicity in, the forgery and fraud practiced by Gellhorn. When the latter received the money on the draft, he paid to the defendant the amount due him-seven hundred and fifteen dollars-taking a receipt in full discharging the indebtedness. The fact that Rivers knew the money was part of the proceeds of the draft, and that it was paid immediately after the cashing of the draft, is of no importance, when it is shown that he had no knowledge that the draft had been raised, and that upon the payment by Gellhorn of his debt, he discharged the same and surrendered the securities held by him. No greater reason can exist for holding him liable for money had and received, or money paid to the extent of the seven hundred and fifteen dollars paid to him by Gellhorn, than would have existed if, instead of being paid directly by Gellhorn, the money had passed through a dozen hands and then been paid to him by an entire stranger to the transaction. His liability is strictly that of an indorser, and not that of one to whom money has been paid under a mistake of fact.

The inquiry in the sixteenth cross-interrogatory to A. W. Hill, as to who was the cashier and assistant cashier of the Gate City National Bank, the drawer, at the time 19 the draft was issued, was irrelevant, and the answer was calculated to work injury to the plaintiff in the minds of any of the jury who may have known the history of the assistant cashier's connection with that bank. It does not appear, however, when the objection to the question was made, and the court cannot, therefore, be put in error for overruling the objection. Inasmuch as the question itself was illegal, the objection, if not made until the deposition was read to the jury, was properly overruled: Louisville etc. R. R. Co. v. Hall, 91 Ala. 112; 24 Am. St. Rep. 863. In view of the issues on which the case was tried, it was competent to inquire by whom the defendant was asked to indorse the draft.

The cashier of plaintiff having testified that defendant had written to plaintiff promising to pay, and the letter not having been produced, it was clearly permissible for the defendant to deny that he had so written. That part of the proceeds of the draft which was paid by Gellhorn to defendant, having been paid to discharge an indebtedness due from the former to the latter, evidence was properly admitted to show that the notes evidencing the indebtedness were secured by the indorsement of a third person, since it tended to strengthen the testimony that defendant gave value for the money paid him.

Let the judgment be reversed, and the cause remanded for further proceedings in conformity to this opinion.

NEGOTIABLE INSTRUMENTS-CONTRACT OF INDORSEMENT-LAW OF PLACE.-The law of Indiana governs as to the liability of an indorser, where promissory notes are made and indorsed in that state: Dunnigan v. Stevens, 122 Ill. 396; 3 Am. St. Rep. 496, and note.

IN

NEGOTIABLE INSTRUMENTS-ACCOMMODATION DORSEMENT-RIGHTS AND LIABILITIES ARISING FROM.— The contract and liability of an accommodation party are, in general, those of surety for the party accommodated. The maker of an accommodation note delivered to the payee to be discounted for his benefit cannot set up want of consideration as a defense against a holder for value: See monographic note to Altoona Second Nat. Bank v. Dunn, 31 Am. St. Rep. 745-757, on the rights and liabilities of makers and indorsers of accommodation paper. An accommodation indorser cannot set up, in a suit against him and his indorsee, that there was an agreement between them, at the time of putting their names on the paper, that such indorsement should constitute a joint and not a successive liability: Johnson v. Ramsey, 43 N. J. L. 279; 39 Am. Rep. 580. See extended note to Credit Co. v. Howe Machine Co., 1 Am. St. Rep. 135-138; Ewan v. BrooksWaterfield Co., 55 Ohio St. 596; 60 Am. St. Rep. 719. As against a holder for value, an accommodation maker of a note can defend only on the ground of actual payment. The fact that it is made for accommodation, and without consideration is immaterial: Philler v. Patterson, 168 Pa. St. 468; 47 Am. St. Rep. 896, and note.

NEGOTIABLE INSTRUMENTS-WAIVER OF DEMAND, NOTICE, AND PROTEST.-Waiver of notice and protest waives demand and notice: Wolford v. Andrews, 29 Minr. 250; 43 Am. Rep. 201; Baker v. Scott, 29 Kan. 136; 44 Am. Rep. 628. Whether facts and circumstances shown by evidence amount to waiver of demand and notice is a matter of fact to be determined by the jury: Lary v. Young, 13 Ark. 401; 58 Am. Dec. 332. The burden of proving that a promise of a drawer or indorser to pay a draft or note, made after failure to make presentment and give notice of nonpayment, was made with full knowledge of facts is upon the party relying upon such promise as a waiver of presentment and notice: Walker v. Rogers, 40 Ill. 278; 89 Am. Dec. 348, and note; Trimble v. Thorne, 16 Johns. 152; 8 Am. Dec. 302. Waiver of demand and notice on a note need not be in writing, and may be proved by direct evidence, or inferred from expressions and conduct of parties: Hibbard v. Russell, 16 N. H. 410; 41 Am. Dec. 733, and note.

DEPOSITIONS OBJECTIONS WHEN SHOULD BE TAKEN. Objection to the manner and form of taking a deposition must be

made at the time the deposition is taken. Such objection cannot be made for the first time at the trial: International etc. Ry. Co. v. Prince, 77 Tex. 560; 19 Am. St. Rep. 795. See Winters v. Winters, 102 Iowa, 53; 63 Am. St. Rep. 428; Strickler v. Todd, 10 Serg. & R. 63; 13 Am. Dec. 649; Donnell v. Jones, 13 Ala. 490; 48 Am. Dec. 59.

MCCREERY V. BERNEY NATIONAL BANK.

[116 ALABAMA, 224.[

EQUITY-PLEADING.-A demurrer to a bill in equity confesses only such matters of fact as are well pleaded and not conclusions or inferences of law or fact; and when fraud is averred in general terms, and no facts are alleged constituting the fraud, the court cannot consider the averment in passing upon the demurrer, as such averment is a mere conclusion of the pleader.

ATTACHMENT-PERISHABLE PROPERTY-SALE OF.Under a statute authorizing the court, on motion, to order the sale, in advance of judgment, of perishable property under attachment, the court has jurisdiction to order the sale of any property subject to attachment, and a sale made under such order vests a perfect title in the purchaser, as against the parties plaintiff and defendant, and all others not having a paramount title or lien.

ATTACHMENT-SALE OF PERISHABLE PROPERTY— COLLATERAL ATTACK.-If property subject to attachment is levied on, and motion is made by either party in a proper manner for an order of sale, on the ground that the property is perishable, the jurisdiction of the court to order the sale attaches, and whatever may be the character of the property, if the court is satisfied that, either by reason of its perishable nature, or because of the expense of keeping it until the termination of the litigation, it will prove, or be likely to prove, fruitless to the creditor, and that the purpose of its original seizure will probably be frustrated, its judgment in ordering the sale is conclusive, until reversed in some direct proceeding, and cannot be collaterally attacked.

EQUITY-CONTROL OF DEBTOR'S PROPERTY-JURISDICTION.-Insolvency alone, in the absence of fraud or collusion, does not authorize a court of equity to take charge of a debtor's property at the suit of his creditor, and to administer it for the benefit of creditors.

Mountjoy & Tomlinson, for the appellant.

W. Percy, for the appellee.

228 BRICKELL, C. J. This is an appeal from a decree sustaining a demurrer to a bill of complaint filed by appellants, creditors of B. Somers & Co., which seeks to have declared void a sale of personal property, which had been seized as the property of said B. Somers & Co. under a writ of attachment sued out by the Berney National Bank, and sold under an order of the court, in advance of judgment, as "perishable property," and purchased at the sale by the Berney National Bank; and to have the latter declared a trustee of said property, or the pro