The performance of the duties of a notary public are ministerial and not judicial. An acknowledgment may be taken by a relative, who could not act judicially because of relationship. Lynch v. Livingston, 6 N. Y. 422; National, etc., v. Conway, 1 Hughes, 37.

So, though he is interested as one of the beneficiaries in the trust, if not in fact a grantee or grantor in the deed. National v. Conway, 1 Hughes, 37, 40, 45.

In United States v. Bixby, 10 Biss. 522, it was held that in the absence of a statutory or constitutional prohibition a minor might be a notary public. The court said: "While at common law persons are not admitted to full enjoyment of civil and political rights until they have attained the age of twenty-one years, yet infants are capable of executing mere powers, and as agents of making binding contracts for others. In England they are allowed to hold the office of parkkeeper, foresters, jailor and mayor of the town; and in both England and this country they are capable of holding and discharging the duties of such mere ministerial offices as call for the exercise of skill and diligence only. They are not eligible to offices which concern the administration of justice on account of their inexperience and want of judgment and learning. Stephen S. Mason was appointed secretary of the Territory of Michigan by President Jackson in 1831. When he was but nineteen years of age, and while yet an infant, he became acting governor, and the vigor and wisdom which he displayed in these offices indicated the propriety of his appointment. Other instances might be cited in which infants have discharged the duties of purely ministerial offices which did not concern the administration of justice. It need hardly be said that the office of notary public is ministerial and that it does not concern the administration of justice." See also People v. Dean, 3 Wend. 438.

When not prohibited by Constitution, the Legislature may by statute authorize a woman to hold an office pertaining to the administration of justice as that of master in chancery. Schuchardt v. People, 99 Ill. 501, 501-506; Master of Hall, 50 Conn. 131; 47 Am. Rep. 625, 630-632; Robinson's Cuse, 131 Mass. 382, 383, 384, note.

Or an attorney and counsellor. Robinson's Case, 131 Mass. 384, statute cited in note, See New York Code of Civil Procedure, section 56, as amended in 1886, in consequence of Miss Stoneman's Case, supra.

The mere omission of the word "male" has been held in Massachusetts not to be, per se, a sufficient indication of an intent to change a long-defined rule of law. Robinson's Case, 131 Mass. 382.

The contrary, it seems to me on the better reasoning, has been held in Connecticut and Pennsylvania. Matter of Hall, 50 Conn. 131; Evans v. Ives, 1 Luz. Leg. Reg. 461.

A married or single woman may be appointed by rule of court an arbitrator under a statute authorizing a submission to "any person or persons." Evans v. Ives, 1 Luz. Leg. Reg. 461. The court in this case (p. 464) said: "In Kyd on Awards, 70, 71, it is said that an unmarried woman may be an arbitrator. To sustain this, the author cites the Duchess of Suffolk's Case, 8 E. 41; 1 Br. 37. In 2 Petersdorf's Abr. 129, it is said that it is no objection to an award that the arbitrator is a married woman. Gentlewomen have also held and exercised judicial authority. Anne, Countess of Pembroke, held the office of sheriff of Westmoreland and exercised the duties thereof in person. the Assizes of Appleby she sat with the judges on the

At

bench. Harg. Co. Lit. 326; 8 Bac. Abr. 661. Her right to sit upon the bench as a judge will be fully understood when it is borne in mind the sheriffs at that time held court and exercised judicial power. Sheriffs had power to inquire of all capital offenses and issue process and enforce the same. But this power was afterward restrained. By Magna Charta, chapter 17, it was enacted that no sheriff shall hold pleas of the crown. 8 Bac. Abr. 688. Eleanor was appointed lord keeper of England. It would seem from the history of this noble woman that she actually performed the duties of lord chancellor in person. It is said of her that in the summer of 1235 King Henry appointed her lady keeper of the great seal. She accordingly held the office nearly a whole year, performing all the duties, judicial as well as ministerial. She sat as judge in Aula Regia. These sittings were however interrupted by the accouchment of the judge when she was delivered of a daughter. After retiring from the bench and the appointment of her successor, she was delivered of a boy, who afterward became Edward I of Eugland. 1 Campb. Lives Lord Ch. 134-137. Without referring in any manner to Eve, the first arbitrator appointed in this world to decide the controversy about eating the forbidden fruit, or to the manner Deborah judged Israel, we are clearly of the opinion that under the act of 1836 a woman, married or single, may be appointed arbitrator, and may act as such and make a valid award." See 1 Campb. Lives Lord Ch. (3d Eng. ed.) 140-147, life of Eleanor, lord keeper

Miss Strickland (1 Lives Queens England [4th Eng. ed.1,383-384) says of Eleanor: "Pleas were holden before her and the King's Council, in the Court of Exchequer, during Henry's absence in Gascony. At this time,' says Maddox, 'the queen was custos regne, and sat vice regis.' We have thus an instance of a queen consort performing not only the functions of a sovereign in the absence of the monarch, but acting as a judge in the highest court of judicature curia regis. There can be no doubt but this princess took her seat ou the King's Bench." See also 39 Am. Rep. 36, note. The term "person," unless restricted, includes in its natural meaning a woman. Matter of Hall, 50 Conn. 131; 47 Am. Rep. 626, 629-632.

The grant to a woman to have the custody of a castle is good. Lady Russell's Case, Cro. Jac. 18.

A woman may be a member of a school committee. Opinion of the Judges, 115 Mass. 602.

The court said: "The common law of England, which was our law upon the subject, permitted a woman to fill any local office of an administrative character, the duties attached to which were such that a woman was competent to perform them."

In Huff v. Cooke, 44 Iowa, 639, it was held there was no constitutional inhibition upon the right of a woman to hold the office of county superintendent of common schools, and that in the absence of a constitutional restriction the General Assembly could confer upon woman the right to hold an elective office or by a retroactive statute confirm ber election thereto.

16

Ministerial offices may be granted to any persons, and even to women if they are capable of performing them properly." Chitty Prerog. Crown, 84. So an overseer of the poor. King v. Stubbs, 2 T. R. 395; Viner's Abridgment, tit. "Feme" A. Governor of a work-house. And keeper of a prison. Keb. 32; id., 151. Commissioner of sewers. Callis Sewers (4th ed.), 296-300; marg. pp. 250-253 et seq.; Countess of Warwick's Case.

2 Lord Raym. 1014. Lady Boughton's Case, 3

Marshal of a court. Herne Reading (4th ed.), 1685. A commissioner of the court. Matter of Hall, 50 Conn. 136.

Voters are required to be male citizens. Constitution of New York, art. 2. § 1.

I proceed to consider the Constitution and statutes of our State to ascertain who may hold office. Article 10 of the Constitution does not require that persons therein referred to as elected or appointed to office under the provisions of that article shall be "males' or "electors," and I find no such provision there or elsewhere in the Constitution, except as the words "he" or "his" may-from the fact that at its adoption, by long usage only males could hold the offices designated -be construed, impliedly, to mean males only. There is not however much force in this argument, for it is well settled that masculine pronouns, in constitutious and statutes, shall, when used generally to designate a member of the human race, be construed to include females and vice versa. They are frequently used simply to express one of the race irrespective of sex. The Constitution contains numerous instances where all would agree they are so used. Art. 1, §§ 1, 3, 6, 7, 8.

It is not necessary to consider how much force should be given to this argument when applied to certain offices, for the appointment of notaries public is authorized by the Revised Statutes. 1 R. S. 98; 1 Edm. Stat. 88-89. The restrictions upon their appointment are that they shall be citizens and residents of the State and shall be twenty-one years of age (1 R. S. 116, § 1;

BANK CHECKS-PAYMENT-ACCEPTANCE.

TENNESSEE SUPREME COURT, JAN. 16, 1890.

PICKLE V. PEOPLE'S NAT. BANK. Possession by a bank of an unindorsed check drawn on it in favor of complainant or his order, coupled with evidence that it was not its custom to require a payee to indorse the check when paid to him in person, is not sufficient to show payment to him, when denied by him. The holder of a check cannot sue the bank on which it is drawn, unless it has been accepted by the bank. Where a bank has paid a check drawn on it to one not the payee or his indorsee, and charged and deducted the amount on settlement with the drawer, its conduct amounts to such acceptance as will enable the payee to sue upon it.

Whether the check has been accepted in such case is rather a question of weight of evidence than 'of commercial law, so that a State court need not follow a decision of the United States court for the sake of uniformity in commercial law.

It

By section 11 of the act concerning the Revised Statutes (Laws 1829, chap. 20, p. 21; 1 Edm. Stat. 71) it is expressly provided that whenever, in the Revised Statutes or in any other statute, any subjectmatter, party or person, is described or referred to by words importing the singular number or the masculine gender, several matters and persons, and females as well as males, shall be deemed to be included; and these rules of construction shall apply in all cases unless it be otherwise specially provided, or unless there be something in the context repugnant to such construction." This provision is a part of the very system of statutes under which notaries are appointed. As to some (town) offices it is specially provided (1 R. S. 345, §1; 1 Edm. Stat. 318) that no one shall be chosen unless an "elector" of the town. This would undoubtedly be held, in connection with article 2, section 1 of the Constitution, to require that the incumbent should be a "male," but it looks as if the term was used to require residence in the town rather than that he should

be an

elector," though as the language is plain, it would of course need no construction. I find nothing requiring that a notary public should be an "elector" or a "male." The general government appoints females to the offices of postmasters, pension agents and some of the most responsible offices within the gift of the appointing power.

I find no authority for so doing except the general declaration in section 1 of the United States Revised Statutes that "words imputing the masculine gender may be applied to females," though it is possible some provision for the appointment of females may have escaped me.

I find no legal objection to the appointment of a wo man who is twenty-one years of age, a citizen and resident of the State, to the office of notary public, and in my opinion such a woman is clearly eligible to that NATHANIEL C. MOAK.

office.

is immaterial that it does not appear that the check was delivered to complainant, or how it came into possession of the bank, as by suing upon it the payee ratifies the receipt of the check on his account, though not its subsequent collection.

PPEAL from Chancery Court, Bedford county;
Walter S. Bearden, Chan.

Cooper & Frierson, for complainant.

Ivie & Ivie and Mayers & Dayton, for defendants. LURTON, J. This is a bill in equity to recover the sum of $600, which complainant charges is due to him from either the People's National Bank or John M. Meese, both of whom are made defendants. The bill, in substance, alleges that Meese, being indebted to complainant in the sum of $600, claims on the 26th of March, 1887, to have paid the debt in a check drawn by himself, against his account with the defendant bank, payable to complainant or his order, and that the check had been paid by the bank, and charged up against his account. The defendant bank claims that the check was presented to it for payment by complainant in person, and that it was paid to him. Complainant charges that the check has never been paid to him, or to his order, or to any one authorized by him. Upon these facts he prays for a decree against the defendants or either of them, as the law and facts may justify. The defendant Meese, in his answer, admits the indebtedness as charged, but insists that he has fully paid same by drawing and delivering his check for the sum of $600 to complainant, and that the check has been paid by the drawee to Thomas Pickle, and charged up to the account of the drawer. The answer of the bank admits the drawing of the check by Meese, payable to Thomas Pickle or order, and claims that it was presented by the payee, and paid to him in person. It admits that the check has never been indorsed by complainant, but insists that it never required the indorsement of such a check when presented for payment by the payee in person. The officers of the defendant bank do not in their depositions pretend to any memory as to the payment of this check. They prove that it was the rule and custom of the bank to require the indorsement of all checks drawn against it where the check is payable to the payee or order, when presented for payment by one other than the payee, but that, when presented by the payee in person, they do not require bis indorsement; that the check in question bears the bank stamp of payment as of March 28, 1887, and has no indorsement; and that, in view of their custom or rule, they would not have paid such a check to any one but complainant, unless indorsed by him. They further insist that the possession of such a check raises a presumption that it was paid to the payee named in the check.

The possession of an order by the person upon whom it is drawn is prima facie evidence that the articles or money specified therein were delivered or paid according to the order. Kincaid v. Kincaid, 8 Humph. 17; 2 Daul. Neg. Inst., § 1647. This presumption is however rebutted by the positive and uncontradicted testimony of complainant that he in fact never did collect the check or authorize any one to collect it for him. We have considered all the circumstances relied on by the defendant as tending to support the presumption of payment to complainant in person, and are of opinion that the weight of proof is that the check has never been paid to complainant. The custom of the defendant bank to pay such checks as the one now under consideration, to the payee, without his indorsement, is the occasion of this litigation. The contrary is the usage of commerce. Such a check, returned to the drawer when paid, and credited to his account, with the indorsement of the payee, would be a voucher for such payment in favor of the drawer against the payee. But, without such indorsement, it would not be evidence, as between drawer and payee, of such payment. 2 Daul. Neg. Inst., s 1648. The almost universal custom of business is to make checks payable to the payee or order, for the purpose of making the check a voucher for the payment; so the indorsement by the payee would furnish the banker very high evidence of payment in accordance with the direction of the drawer. A check drawn in favor of a particular payee or order is payable only to the actual payee, or upon his genuine indorsemeut; and, if the bank mistake the identity of the payee, or pay upon a forged indorsement, it is not a payment in pursuance of its authority, and it will be responsible. Morgan v. Bunk, 11 N. Y. 404; 2 Danl. Neg. Inst., §§ 1618, 1663; Bunk v. Whitman, 94 U. S. 343.

This brings us to the question as to whether complainant can recover upon this check as against the bank. While the authorities are not agreed, yet the decided weight of opinion is that the holder of a bank check cannot sue the bank for refusing payment, in the absence of proof that it was accepted by the bank, or that it has done some other act equivalent to and implying acceptance. This has been the uniform view of this court. Bank v. Merritt, 7 Heisk. 177; Bank v. Keesee, id. 200; Imboden v. Perrie, 13 Lea, 504. In the latter case the reasons for this doctrine are forcibly stated and the authorities collated by Judge Turney. We are unable to see any reason for disturbing the rule as heretofore declared by this court, especially as the decided weight of authority is in accord with our decision. Bank v. Millard, 10 Wall. 152; Bank v. Whitman, 94 U. S. 343; Carr v. Bank, 107 Mass. 45; Bank v. Bank, 46 N. Y. 82; Bank v. Cook, 73 Penn. St. 485; Saylor v. Bushong, 100 id. 23; Purcell v. Allemong, 22 Gratt. 742; Bellamy v. Majoribanks, 8 Eng. Law & Eq.

523.

Has there been any acceptance by the defendant bank of the check in question? It is argued that the check, having been charged up to the account of the drawer, and returned to him, is tantamount to an acceptance. The authorities are not agreed as to the effect of such an act. The case of Bank v. Millard was the case of a payment made of a check upon a forged indorsement. It did not appear that the check had been charged to the drawer, and there was a judgment in favor of the bank. Mr. Justice Davis, in delivering the opinion of the court, in speaking of the effect of such a charge, said: "It may be, if it could be shown that the bank had charged the check on its books against the drawer, and settled with him on that basis, that the plaintiff could recover on the count for money had and received, on the ground that the rule ex æquo et bono would be applicable, as the bank, having assented to the order, and communicated its assent to the paymaster, would be considered as holding the

* * *

money for the plaintiff's use, and therefore under an implied promise to him to pay it on demand." 10 Wall. 157. In the subsequent case of Bank v. Whitman the very question arose, when the court, through Mr. Justice Hunt, held that such a charge, having been made through mistake, and upon the assumption that it had in fact paid the check to one anthorzied to collect it, would not authorize the presumption of an acceptance and promise to pay it again. 94 U. S. 347. Upon the question of commercial law, we should be generally inclined to follow any well-settled line of decisions by the Supreme Court of the United States when the question was in this State res integra. This question can hardly be regarded as one of commercial law," in the ordinary sense of the phrase. It is rather a question as to weight and sufficiency of evidence tending to prove an acceptance. We agree that the holder of a check, for want of privity, cannot recover upon the check against the bank, unless he can show an acceptance. The question presented is as to the weight to be attached to certain acts done by the bank, and the inference fairly to be drawn from these acts. Where a bank has negligently paid a check to an improper person, it would seem, that in good conscience, the true owner and payee ought not to be remitted to his action against a palpably insolvent drawer, for thereby he may lose his debt altogether. A legal principle however stands in the way, in that there is no privity between himself and the bank until the bank has assented to the order of the drawee requiring it to pay the holder of the check the sum of money named. The assent which is necessary before there is any contract relation between the holder of the check and the bank is what is meant by acceptance. This assent need not be by indorsement of "Good" across the check, or by any other particular words, either in writing or oral. The question of assent or acceptance is one of fact, and may be made out by any of the methods by which a fact is proven. Did the defendant bank assent to the directions of its customer to pay out of his funds on deposit the sum named in the check? If so, to whom did it assent to pay this sum? The answer is found by inspection of the check. If it assented to pay the check, it undertook and assumed to pay it to Thomas Pickle or upon his order. Now, the facts which are relied upon as making out such an assent to the direction of the drawee of this check as to bring complainant into privity with the bank are that it received and retained the check, and that it has charged the check to the account of the drawer, and settled with him, deducting the amount of the check. Now, when a bank certifies a check as "good," it is not only authorized but good banking would require that such check should be then charged to the account of the drawer, as so much of his funds which they have obligated themselves to pay upon that check. Of course, if the check is never paid, or is returned, the drawer would be credited. The debiting of this check to the account of the drawer would then meau only one of two things-that the check has been paid as ordered, or that the fund is held subject to the demand of the payee. The bank must be taken to have assented to pay it as directed; that is, to the payee or his order. That it has assented to the payment of this check is, we think, to be inferred from the retention of the check when presented at its counter, and the subsequent charge of the check to the drawer. Upon this charge to the drawer we predicate its assent or acceptance. It had no right to charge it to the drawer, and to settle his account, unless it had either paid the check to the payee named in the check, or his order, or, having accepted the check, held the fund of the drawee subject to the demand of the payee. It has not paid the check. It must therefore be held to hold the amount of the check for the payee. It cannot escape this consequence by saying that what we

zens. As it is, when our decisions conflict, ours, of course, can only be good as to a part of the litigation which may arise in the State, for, as to any litigants who may be carried into the Federal courts by nonresidence and otherwise, the Federal rule will be applied. So it will be in all cases where the National banks go into the hands of receivers, and have their affairs wound up in the Federal courts, and in every case in which, by virtue of the situation of parties, or manner in which the question is involved, the Federal courts have jurisdiction. Many reasons could be added, but they will suggest themselves. These are sufficient to indicate them and outline the ground of dissent.

ATTORNEY-GENERAL V. CITY OF DETROIT. Local acts of Michigan, 1889, page 994, entitled "An act to preserve the purity of elections," etc., in the city of Detroit, which provides for a new system of registration, and that persons not registered shall not be permitted to vote, is unreasonable and void because it provides for but five registration days during the year, at one of which the elector must make personal application for registration. The act is also void because it is not impartial, in that it requires a naturalized voter to produce his certificate of naturalization, or show, by evidence other than his own oath, that such certificate was issued, while it permits a native-born citizen to prove his standing as a voter by his own oath.

PETITION for mandamus.

E. F. Conely aud Wm. P. Wells, for relator.

J. W. McGrath and F. A. Baker, for respondent.

MORSE, J. [Omitting statement and minor points.] But in my view, the law is unreasonable and void in that it undertakes to disfranchise a large number of voters, through no fault of their own, and to make an unjust and unlawful distinction between the rights of native-boru and naturalized citizens and electors. The Constitution authorizes the Legislature to enact laws to preserve the purity of election, and guard against abuses of the elective franchise; but this does not authorize, by direction or indirection, the disfranchisement, without his own fault or negligence, of any elector, under the Constitution. Art. 7, § 6. The Constitution provides that "in all elections every male citizen, every male inhabitant residing in this State on the 24th day of June, 1835, every male inhabitant residing in the State on the 1st day of January, 1850, who has declared his intention to become a citizen of the United States, pursuant to the laws thereof, six months preceding an election, or who has resided in the State two years and six months, and declared his intention as aforesaid, and every civilized male inhabitant of Indian descent, a native of the United States, and not a member of any tribe, shall be an elector and entitled to vote; but no citizen or inhabitant shall be an elector, or entitled to vote at any election, unless he shall be above the age of twenty-one years, and has resided in this State three months, and in the township or ward in which he offers to vote ten days, next preceding such election." There is also a provision as to electors in the army or navy, not necessary to be here recited. Art. 7, § 1. By this section of the Constitution it will be noticed that there are five distinct classes of persons who are made electors, and the only

qualification to any of these classes is that the elector shall be of age, and have resided in the State three months, and in the township or ward where he offers to vote ten days, next preceding the election. It cannot be for a moment contended that by section 6 of article 7 the framers of the Constitution intended to give the Legislature the power to arbitrarily disfranchise any elector who is such under section 1 of the same article, or to make any difference between the rights of any of the classes of electors therein specified, or to put obstacles in the way to the ballot-box for one class, while the road is left opeu to another. The laws to regulate elections, and to preserve their purity and to guard against abuses of the elective franchise, must be reasonable, uniform and impartial, and must be calculated to facilitate and secure, rather than to subvert and impede, the exercise of the right to vote. Capen v. Foster, 12 Pick. 488. Let us examine the act before us. See Local Laws, 1889, p. 994. The plan of registration under this law is extensive and minute in its details. In this discussion we shall only concern ourselves with its general features and results. It provides that in the year 1889, and again in 1892, and every fourth year thereafter striking, by design or accident, a presidential election year-there shall be a new and complete general registration of voters in the city of Detroit. And it is made the duty of every elector to see that his name is registered in compliance with the requirements of the law; and he shall not be deemed to have acquired a legal residence in the precinct unless he has so caused himself to be registered, "nor shall any ballot be received by the inspectors at any election, under any pretense whatever, unless the name of the person offering such ballot shall have been entered in the register of the precinct in which he claims to vote as herein provided." §§ 3 and 4. The elector must personally apply to the board for registration, and such board "shall examine each applicant." Persons who will be of age on election days, having the other qualifications of electors, may be entered on the register. Every applicant, in the years when a general new registration is required, who has commenced to reside in such precinct, and who has resided therein at least two days," if he be otherwise qualified, shall be entered on the register, and can vote on election day, if he has resided therein ten full days next preceding. §7. The meeting of these boards of registration for 1889, and for 1892, and every four years thereafter, is first to be held on the first Monday of October, at which time the board sits for four days, and also again one day, on the fourth Monday of October. The law makes no provision for any other registration in the years of this new or general registration. In this year, the fourth Monday of October came on the 28th, and the city election on the 5th of November, there being seven days between the last day of registration and election day, but whenever the month of October begins on Sunday, Monday or Saturday more than ten days will ensue between the last day of registration and the day of election, and as the act requires that the elector must have actually resided in the precinct two days before his name can be entered on the registry book, this act, in the years of general registration, will disfranchise every voter who has not resided in his ward nineteen or more days, in the precinct, before election day, whenever the month of October begins on either one of these three days. For instance, in 1888, October began on Monday. The fourth Monday was the 22d. The general election day was November 6th, leaving fourteen full days between the last day of registration and election; and adding the two days, every elector not residing within the precinct for sixteen full days before the day of election, under this act, would have been deprived of his vote. This would be in direct conflict with the Constitution, which makes him an elector upon a residence