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In another deed the provision is expressed in these words: "Also right of way over the road as now established from the house of the grantor to the Joliet road." The evidence shows that the way was a private one, and that for much of the time a gate was maintained across the way at the point where it intersected the public road, but that at some season there was no gate at that place. The controversy is as to the right of the appellant to maintain a gate at the point named.

Our judgment is, that the owner of the fee may maintain a gate at the place where the private way intersects the public road. It may be true that the owner of the servient estate cannot maintain an unreasonable number of gates, or otherwise unnecessarily interfere with the use of the way by the owner of the dominant estate, but we think it entirely clear that maintaining a gate at the place where the private way intersects a public road is a reasonable and legitimate exercise of the right which resides in the owner of the fee. We have found no substantial diversity of opinion upon this question, for the authorities are well agreed that it is the right of the owner of the servient estate to swing a gate across the private way. The law upon this subject is thus stated by an English author: "But in cases of a general grant, express or implied, or of necessity, the rule seems to be that gates or bars may be lawfully erected at the termini of such ways without any liability for obstructing the way, and the way-owner would be liable in trespass for unlawfully removing the same. The great preponderance of convenience to the land-owner over the slight inconvenience to the way-owner seems to make it reasonable in the eye of the law that such should be the rule. And if the land-owner may rightfully erect and continue such quasi obstruction without any liability, it seems to follow that the way-owner must duly replace the same after he has passed; and if damage ensue for his neglect of this duty, he would be liable to the land-owner therefor": Bennett's Goddard on Easements, 331. The American cases state the rule in stronger terms than those employed by the author from whom we have quoted: Whaley v. Jarrett, 69 Wis. 613; 2 Am. St. Rep. 764, and cases cited; Short v. Devine, 146 Mass. 119. Judgment reversed.

EASEMENT.

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-Unless an open way is expressly granted, the grantor of right of way may maintain gates or bars across it: Note to Bakeman v. Talbo↳ 88 Am. Dec. 282.

CULVER V. MARKS.

[122 INDIANA, 554.]

BANKS AND Banking NECESSITY OF PRESENTATION OF CHECK WHEN NO FUNDS ARE ON DEPOSIT. - Presentation of a check for payment and notice of non-payment to the drawer are not necessary when the latter has no funds on deposit for the payment of the check at the time when it should be presented, or when, having funds on deposit, he withdraws them, or when, by consent of the drawer, or agreement between him and the payee, the check is not to be presented for payment.

BANKS AND BANKING-CHECKS-PRESUMption as to BANK DRAWN AGAINST. Checks dated "Lafayette, Indiana," and drawn on the "First National Bank," the evidence showing that there was such a bank at that place, are presumed, in the absence of anything to the contrary appearing, to relate to and to have been drawn upon that bank.

BANKS AND BANKING. - CHECKS DRAW INTEREST from the time when presented, or when they should have been presented if there had been any funds of the drawer in the bank with which to pay them.

BANKS AND BANKING. - EVIDENCE OF WILLINGNESS OF BANK TO PAY A CHECK of the drawer, notwithstanding the fact that he has no funds in the bank, is inadmissible in an action on the check, as the payee is relieved from making presentation and demand if the drawer has no deposit in the bank.

BANKS AND BANKING. - PAYEE OF CHECK takes it with the legal obligation to present it at the bank for payment, and failing to do so, if the drawer has funds in the bank to pay it, must suffer any loss ensuing from such failure; but if the drawer has no funds in the bank, the payee is excused from presenting the check for payment.

BANKS AND BANKING. BANKS HAVE NO LEGAL RIGHT to allow the drawers of checks to overdraw their accounts, and to pay checks out of the funds of other depositors or the money of stockholders.

BANKS AND BANKING- ENTRIES ON BANK-BOOKS, ADMISSIBILITY OF. In an action on a check, original entries in original books of the bank, made in the due course of business, are admissible to show the state of the depositor's account at the time the check was drawn, though some of the persons who made such entries are dead, removed from the state, or have no recollection of the facts represented by the entries, except that they were made in the due course of business, and were correct when made. BANKS AND BANKING- EXPERT EVIDENCE ABSTRACT OF Books. In an action on a check, the statement of an expert witness, who has examined the books of a bank and made an abstract thereof, is admissible in evidence when an opportunity to cross-examine is given.

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PLEADING AND PROOF. When each cause of action is declared on in several different forms of averment, the allegations of each paragraph of the complaint need not be proved.

J. R. Coffroth, T. A. Stuart, and A. L. Kumler, for the appellant.

B. W. Langdon and T. F. Gaylord, for the appellee.

OLDS, J. This was an action by Jacob F. Marks against Malinda Culver, administratrix of the estate of Moses C.

Culver, deceased, to recover a claim against the estate of the decedent.

It is contended by the appellee that the appeal was not taken and perfected within the time allowed by statute. The appellant asked and obtained leave of this court to appeal, which disposed of this question, and it is unnecessary to consider it further. Appellant's decedent died in December, 1884, and the claim was filed in February, 1885. The basis of the claim is three checks, copies of which are on file with the complaint, and marked A, B, and C, and are in the following words and figures:

"A.

LAFAYETTE, IND., Nov. 1, 1869. "The First National Bank, pay to J. F. Marks, one thousand dollars. "$1,000.

"B.

(Signed)

M. C. CULVER." LAFAYETTE, IND., Dec. 8, 1870.

"First National Bank, pay to J. F. Marks, or bearer, five hundred dollars.

"$500.

"C.

(Signed)

M. C. CULVER." LAFAYETTE, IND., Dec. 29, 1870.

"First National Bank, pay to J. F. Marks, or bearer, one thousand dollars.

"$1,000.

(Signed)

M. C. CULVER."

Also, three promissory notes, one dated December 17, 1870, for $1,051.34, executed by the decedent to appellee; one dated September 1, 1870, for $550, executed by decedent to appellee; and one dated July 29, 1872, for $2,000, executed by the decedent to one Smith Lee, and assigned by him to appellee. There are some nineteen paragraphs of complaint, most of them declaring upon the checks, and varying in their allegations. There were no further pleadings filed. There was a trial by the court, under the statute, and a finding for the appellee on the checks and notes aggregating $7,694.31.

The court's finding it as follows: "The court, being in all things fully advised, finds that there is due the plaintiff, of and from the administratrix, to be paid out of the estate of the decedent, Moses C. Culver, on account of the note for two thousand dollars, and dated July 29, 1872, the sum of eight hundred and twenty-three dollars and twelve cents ($823.12); on the due-bill dated December 17, 1870, the sum of seven hundred and ninety-six dollars and fifty-nine cents ($796.59); on the two one-thousand-dollar checks, one dated November

1, 1869, and one December 29, 1870, the sum of three thousand nine hundred and thirty-six dollars and twenty-six cents ($3,936.26); on the five-hundred-and-fifty-dollar note, dated September 1, 1870, the sum of one thousand three hundred and eighty-three dollars and thirty four cents ($1,383.34), including one hundred and twenty-five dollars and seventy-five cents as and for attorney's fees; and on the check for five hundred dollars, and dated November 8, 1870, the sum of seven hundred and fifty-five dollars, being the principal and interest thereon from the first day of January, 1878, and mak ing in the aggregate the sum of seven thousand six hundred and ninety-four dollars and thirty-one cents ($7,694.31)."

The appellant demurred to each paragraph of the complaint, which demurrer was overruled, and exceptions taken. The appellant also filed a motion for a new trial, which was overruled, and exceptions taken; also, moved the court in arrest of judgment, which motion was overruled, and exceptions reserved; and these various rulings of the court are assigned as error.

No question is presented as to the sufficiency of the paragraphs on the notes, or the right of the appellee to recover the amount due upon them.

The paragraphs of the complaint are numerous, and we do not deem it necessary to set them out, as we can state the questions presented in much less space.

They all declare upon the checks, and aver facts to excuse the necessity for presentment to the bank for payment and notice to the drawer of non-payment, differing in the averments in this particular: Some aver that Culver, the drawer, did not have money or funds sufficient in amount in said bank on the day of the date and delivery of said check, nor did he have enough on the day after the date of drawing and delivering said check, in said bank to pay said check. The ninth paragraph, declaring on check dated November 1, 1869, alleges that Culver, the drawer, did not have money or means enough in said bank on the day of the date of said check, nor did he have sufficient funds or money in said bank until the eleventh day of November, 1869, to pay said check. Others aver that all the money or means said Moses C. Culver had in said bank on the day of the date of said check, or had at any time thereafter in said bank, were by said bank paid to said Moses C. Culver, or to other persons on the order, check, or request of the said Culver, and not to the plaintiff

on account of said check. Others aver that at the time of the execution and delivery of said check the said Moses C. Culver requested the plaintiff not to present said check to said bank for payment, and that he, the said Moses C. Culver, should be permitted to pay, and that he, the said Culver, would pay, said check without presentment thereof for payment to said bank, and the plaintiff then and there promised not to present for payment said check at said bank, and to permit the said Culver to pay the same without presentment for payment at said bank; that, in pursuance of said request of said Culver, and the promise of the plaintiff, the plaintiff did not present said check, nor was the same presented to said bank for payment.

The fourteenth paragraph, on the check dated December 29, 1870, alleges that Culver did not have money or means sufficient in amount in said bank on the day of the date of said check, nor did he have enough means or money in said bank for more than thirty days thereafter, to pay said check. The foregoing are the averments in the respective paragraphs relating to the checks.

The several paragraphs are respectively based on the checks as the foundation of the action, and the checks constitute the cause of action: Henshaw v. Root, 60 Ind. 220; Fletcher v. Pierson, 69 Ind. 281; 35 Am. Rep. 214.

The general rule is, that a check must be presented to the bank for payment, and that notice of non-payment must be given to the drawer; but there are exceptions to this rule. In Bolles on Banks and their Depositors, page 325, section 333, it is said: "Another excuse is the lack of funds with the drawee. The drawing of a check under such circumstances, unexplained, is a fraud which deprives the maker of every right to require presentation and demand of payment."

In Franklin v. Vanderpool, 1 Hall, 78, it is held that if the maker of a bank check has no funds in the bank upon which it is drawn at the date of the check, it is not necessary for the holder to present such check at bank for payment in order to enable him to sustain an action upon it against the maker.

When the maker of a check withdraws his funds from the bank so that the check cannot be paid, no demand and notice are necessary: Bolles on Banks and their Depositors, p. 825, sec. 333; Sutcliffe v. McDowell, 2 Nott & McC. 251.

In 2 Morse on Banks and Banking, 3d ed., section 425, it

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