each occasion, after the pass book had been written up and the vouchers returned, made an examination of the account by comparing the checks returned to them with the memorandum of checks in the margin of the check book, and the balance in the pass book with the balance appearing in the check book, and on each occasion they were found to correspond. One of the plaintiffs then compared the checks with entries in the pass book by having the dishonest clerk who had committed the forgeries read the entries while he had the checks, and, no discrepancy appearing, the account was deemed to be correct and was not further examined. It appeared that the clerk by abstraction of forged vouchers and by false balances and readings deceived the plaintiffs and prevented them from ascertaining, by means of the examination thus conducted, the true state of the Rep. 80, 14 So. 335; National Dredging Co., v. Farmers' Bank, 6 Penn. (Del.) 580, 16 L.R.A. (N.S.) 593, 130 Am. St. Rep. 158, 69 Atl. 607; Critten v. Chemical Nat. Bank, 171 N. Y. 219, 57 L.R.A. 529, 63 N. E. 969. b. In case of a series of forgeries. Where there is a series of checks forged and paid at different times, some before the depositor is chargeable with notice, and some after he is thus charged, the bank is entitled to invoke the equitable doctrine of estoppel as to those paid after the depositor is chargeable with notice, if the failure of the depositor to call attention to the forgeries misleads the bank into paying the subsequent checks. Hardy v. Chesapeake Bank, 51 Md. 562, 34 Am. Rep. 325; Kenneth Invest. Co. v. National Bank, 96 Mo. App. 125, 70 S. W. 173. This is stated to be the rule in Critten v. Chemical Nat. Bank, 171 N. Y. 219, 57 L.R.A. 529, 63 N. E. 969, although it does not appear that the facts there called for this decision. In other cases of a series of forgeries, the element of injury to the bank is not given special notice, but it is held that as to the checks paid after the depositor is chargeable with notice arising from his duty to examine, the loss falls upon him. It is the theory that if the bank had been notified of the forgeries at the time when the depositor was chargeable with notice, the subsequent forgeries would not have been carried out. First Nat. Bank v. Allen, 100 Ala. 476, 27 L.R.A. 426, 46 Am. St. Rep. 80, 14 So. 335; National Dredging Co. v. Farmers' Bank, 6 Penn. (Del.) 580, 16 L.R.A. (N.S.) 593, 130 Am. St. Rep. 158, 69 Atl. 607. It is evident, however, that, for the bank to invoke the equitable ground of estoppel, it must appear that it has been misled to its injury. In Israel v. State Nat. Bank, 124 La. 885, 50 So. 783, the bank was held liable for the checks which had been paid before the de account and the fact of the forgeries. But it will be noticed that the plaintiffs did precisely what the appellants in this case failed to do when they compared their pass book as written up by the bank with their own books, and that they were deceived by the false balances which their clerk had placed upon their own books. The court, while recognizing fully the obligation resting upon the depositor to make some examination of his account with the bank when made up, held that he was under no duty to so conduct the examination that it would of inevitable necessity lead to the discovery of the fraud; that he was only bound to use reasonable diligence; and that on the facts as developed in that case such diligence by the depositor was established. In Critten v. Chemical Nat. Bank, 171 N. Y. 219, 230, 57 L.R.A. 529, 63 N. E. 969, 973, positor was chargeable with notice by virtue of having received his pass book and canceled checks, without any question as to whether it had been injured or not; while as to the checks which were paid after the depositor was thus charged with notice, the bank was held not liable. In National Bank v. Tacoma Mill Co. 104 C. C. A. 441, 182 Fed. 1, there was a series of peculations by an employee, but, as the court held the depositor had fulfilled his duty as to inspection of the pass book, the question as to the bank's liability for peculations occurring after he had had an opportunity to inspect his pass book and discover them did not arise. See Weisser v. Denison, 10 N. Y. 68, 61 Am. Dec. 731; Brown v. Lynchburg Nat. Bank, 109 Va. 530, 64 S. E. 950, 17 Ann. Cas. 119; Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. 657; Walker v. Manchester & L. Dist. Bkg. Co. 108 L. T. N. S. 728, 29 Times L. R. 492, supra, in all of which there was a series of forgeries. a c. Necessity that bank show injury. Where the right of the bank to throw loss upon the depositor is dependent upon injury to the bank, the burden has been placed upon the bank to show that it has been injured by the dereliction in the depositor's duty. Consequently, where it has not shown such injury, it will be presumed that it suffered none. Wind v. Fifth Nat. Bank, 39 Mo. App. 72; McKeen v. Boatmen's Bank, 74 Mo. App. 281. A depositor who failed to examine his balance, pass book, and returned checks, including a forged one, for an unreasonable time after they had been returned to him, is entitled to recover from the bank the amount of the forged check paid by it, where there is no showing that the bank suffered by the delay. Janin v. London & said: "It is clear, therefore, that at all times a comparison of the returned checks with the stubs in the check books would have exposed the alterations made in the checks. Of course, the knowledge of the forgeries that Davis possessed, from the fact that he himself was the forger, was in no respect to be attributed to the plaintiffs. But we see no reason why they were not chargeable with such information as a comparison of the checks with the check book would have imparted to an innocent party previously unaware of the forgeries. The plaintiffs' position may be no worse because they intrusted the examination to Davis instead of to a third person; but they can be no better off on that account. If they would have been chargeable with the negligence or fail the court had before it a case of payment, by an honest comparison with the vouchers by the bank of checks which had been raised. which were returned with the check book, It appeared that a comparison of the returned vouchers with the check stubs would have exposed the alterations in the checks, and, as it was not necessary to examine the pass book to accomplish such detection, that phase of a depositor's obligation was not discussed. The failure to detect the alteration was due to the fact that the verification of the account was as a rule intrusted to the dishonest clerk who had raised the checks. The court in the opinion written by Judge Cullen reaffirmed the general rule laid down in the Frank Case, of an obligation on the part of the depositor to examine his account and vouchers, and, in reaching the conclusion that the plaintiffs were chargeable with knowledge of the fraudulent alterations which would have been disclosed S. F. Bank, 92 Cal. 14, 14 L.R.A. 320, 27, standing the depositor failed in his duty to Am. St. Rep. 82, 27 Pac. 1100. The burden has been placed upon the bank to show injury even as to a series of forgeries. See Hardy v. Chesapeake Bank, 51 Md. 562, 34 Am. Rep. 325; Kenneth Invest. Co. v. National Bank, 96 Mo. App. 125, 70 S. W. 173. But in Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. 657, it is stated that if the depositor was guilty of negligence in not discovering and giving notice of the fraud of his clerk, the bank was thereby prejudiced, because it was prevented from taking steps, by the arrest of the criminal, or by an attachment of his property or other form of proceedings, to compel restitution; that it is not necessary that it should be made to appear by evidence that benefit would certainly have accrued to the bank from an attempt to secure payment from the criminal; that an inquiry as to the damages in money actually sustained by the bank by reason of the neglect of the depositor to give notice of the forgery might be proper in an action to recover damages for a violation of the depositor's duty, but in a suit by the depositor in effect to falsify its stated account to the injury of the bank, whose defense is that the depositor has by his conduct ratified or adopted the payment of the altered checks, and thereby induced it to forbear taking steps for its protection against the person committing the forgeries, the right to seek and compel restoration and payment from the person committing the forgeries is in itself a valuable one, and it is sufficient if it appears that the bank, by reason of the negligence of the depositor, was prevented from promptly, and it may be effectively, exercising it. V. Effect of negligence of bank. If the bank has been negligent in failing to discover the alteration or forgery of a check it is liable for paying it, notwith examine the account. National Dredging Co. v. Farmers' Bank, 6 Penn. (Del.) 580, 16 L.R.A. (N.S.) 593, 130 Am. St. Rep. 158, 69 Atl. 607; Manufacturers' Nat. Bank v. Barnes, 65 III. 69, 16 Am. Rep. 576; Merchants' Nat. Bank v. Nichols & S. Co. 223 Ill. 41, 7 L.R.A. (N.S.) 752, 79 N. E. 38; New York Produce Exch. Bank v. Houston, 95 C. C. A. 251, 169 Fed. 785. In Manufacturers' Nat. Bank v. Barnes, 65 Ill. 69, 16 Am. Rep. 576, a depositor, being obliged to leave the city for a short time, gave to a clerk a power of attorney authorizing him to draw checks on the bank for fifteen days, and lodged this power of attorney with the bank. After his return at the end of the fifteen days the clerk continued to draw checks and the bank to pay them. This is held to constitute negligence on the part of the bank which cannot be excused merely by the failure of the depositor to examine the returned checks. A bank which has paid an overdraft of a local agent upon the account of his principal, who resides in another state, without ascertaining the authority of the agent, cannot assert failure of the principal to pass book and examine the returned vouchers after the balancing of the account, as an estoppel upon the principal to deny liability for the overdraft, since the failure to ascertain the authority of the agent is in itself negligence. Merchants' Nat. Bank v. Nichols & S. Co. 223 Ill. 41, 7 L.R.A. (N.S.) 752, 79 N. E. 38. A bank which cashed a check upon the forged indorsement of the payee named therein was held negligent where it had the genuine signature of the payee in the bank where it was accessible, and it is apparent that, had a comparison been made between the genuine signature in its possession and the signature on the check, the forgery would have been detected. Brixen v. Deseret Nat. Bank, 5 Utah, 504, 18 Pac. 43. W. A. E. ure of another clerk in the verification of the accounts, they must be equally so for the default of Davis, so far as the examination itself would have disclosed the facts. We think it plain, therefore, that the finding of the referee that the plaintiffs were not negligent in the examination of the pass book and vouchers is without evidence to sustain it, unless the plaintiffs discharged their duty to the defendant when they committed the examination to a proper clerk, and were not responsible for the manner in which the clerk performed the task. From the language of the report of the learned referee it would seem as if this last were the theory on which his decision proceeded. We do not think it can be sustained." In addition to these decisions of our own court it was distinctly held in Myers v. Southwestern Nat. Bank, 193 Pa. 1, 74 Am. St. Rep. 672, 44 Atl. 280, and in Leather Mfrs. Nat. Bank v. Morgan, 117 U. S. 96, 29 L. ed. 811, 6 Sup. Ct. Rep. 657, that the depositor who sends his pass book to be written up and receives it back with his paid checks as vouchers is bound to examine the pass book and vouchers, and to report to the bank, without unreasonable delay, any errors which may be discovered. These decisions, it seems to me, sustain the conclusion that the appellants were remiss in their obligations, and that the judgment appealed from should be affirmed, and which course I recommend. Cullen, Ch. J., and Willard Bartlett, Chase, Cuddeback, Hogan, and Miller, JJ., concur. NORTH DAKOTA SUPREME COURT. L. C. DOW et al., Admrs., etc., of Eulalie Lillie, Deceased, et al., V. court, for the sale of real estate in North Dakota and the transmission of the proceeds thereof to such principal court for the payment of the debts there provided, is a final order, affecting a substantial right made in a special proceeding, and is applicable as such under § 7225, Rev. Codes, 1905. Same consideration of evidence. 2. In the case of such an appeal, and where the trial in the district court was had upon a stipulation of facts and depositions which were included in the certified record on appeal from the county to the district court, and no oral evidence was taken in the latter court, no statement of the case is into consideration the evidence as presented necessary, and the supreme court can take by the depositions and the stipulations. Executor rejection of claim effect. 3. In allowing or rejecting a claim, an administrator acts merely as an auditor, and his refusal to allow such claim is not res judicata. 6. Where a resident of Iowa died in that state and administration of her estate was had, and on such administration a creditor proved his claim and said claim was allowed by the court, but there were not assets in such jurisdiction sufficient to pay the same, and an ancillary administration was had in North Dakota, where there was real es tate belonging to the estate, but no money or personal property, and there were no debts, and a petition was filed in said an GEORGE L. LILLIE, Admr., etc., of Eula- cillary administration by the administrator lie Lillie, Deceased, Respt. in the principal administration under the direction of said principal court, asking for the sale of the real estate in North Dakota and the transmission of the proceeds to said principal court for the payment of the debts there proved and allowed, held that said petition should have been granted, even though such debts had not been proved in North Dakota in the said ancillary administration. (January 8, 1914.) obligations of ancestor, see the note to Muldoon v. Moore, 21 L.R.A. 89. For the question whether proceedings for sale of decedent's real property fall within the "omnibus" provision of the statute of limitations, see the note to Re Jones, 25 L.R.A. (N.S.) 1304. Orders for the sale of land without the state. The court of the state of decedent's domicil has, of course, no jurisdiction over the decedent's real property in another state. Thus, where the state of Connecticut had granted to a man certain lands in the western reserve, in what is now Ohio, and thereafter deeded her jurisdictional claim to the United States, upon the death of the grantee intestate in Connecticut, the probate court there directed his administrator to sell the interest of the intestate in these lands for the payment of debts, and it was held that a sale made under this order was invalid and the title to the land remained in the heirs. Nowler v. Coit, 1 Ohio, 519, 13 Am. Dec. 640. So, in Brown v. Edson, 23 Vt. 435, it was observed that an administrator appointed at the domicil of an insolvent intestate, taking an order of the court there for the sale of land in another state, could not give anything by his deed. See also the remark in Leavens v. Butler, 8 Port. (Ala.) 380, that the orphans' court of the domicil could not subject the extraterritorial land to its jurisdiction and decree its sale for the payment of debts. Where the executrix of a New Hampshire testator, who died owning land in New Hampshire, Vermont, and Rhode Island, proved the will in New Hampshire and took a license from the court there to sell so much of the real estate as, with the personal estate, would pay the debts and incidental charges, and thereafter accordingly sold the Rhode Island land or some of it, it was held that her deed passed no title but that it was validated by a subsequent act of the Rhode Island legislature passed in that behalf, although the will was never probated in Rhode Island. Wilkinson v. Leland, 2 Pet. 627, 7 L. ed. 542. In Seldner v. Katz, 96 Md. 212, 53 Atl. 931, it was held that it was error for a rected to file the same by the presiding judge of the Iowa court. The petition alleged the principal administration in Iowa, the allowance of claims therein far in excess of the assets of said estate, and prayed the county court of Bottineau county, North Dakota, to direct the sale of the lands located in North Dakota and to transmit the proceeds to the administrator of the estate in Iowa, to be used in paying the debts there proved. The petition was heard by the county court of Bottineau county and denied. An appeal was seasonably taken from this order to the district court of Bottineau county. That court heard the proceedings upon the record which was made in, and which was sent up by, the county court, and on a stipulation Maryland court of equity to order heirs at law or devisees of a Maryland decedent who was indebted to plaintiff, either to pay the debt or to sell lands in Ohio belonging to the decedent, and bring the money into the Maryland court for the payment of the debt, as there was no extraterritorial operation to the statute from which the equity courts of Maryland derived their authority to decree the sale of a deceased debtor's real estate for the payment of his debts; such statute providing that "where any person dies, leaving any real estate in possession, remainder or reversion, and not leaving a personal estate sufficient to pay his debts and costs of administration, the court, on any suit instituted by any of his creditors, may decree that all the real estate of such person, or so much thereof as may be necessary, shall be sold to pay his debts," etc. It was also held in the same case that if, by arrangements between the heirs, the realty or a part of it was vested in them, there could not be any claim that the Maryland court of equity should act in the premises, where there was no evidence showing that the lands in Ohio were answerable for the decedent's indebtedness under the laws of the state of Ohio, the debt in question being a simple contract debt. In Allen v. Shanks, 90 Tenn. 359, 16 S. W. 715, where the executors of a Tennessee testator sold land in Arkansas, although the court seemed to think the will empowered them to sell land for the payment of debts, the court said: "The executors sold and conveyed the Arkansas plantation, and took notes of purchasers. This will was never proved in that state, and complainants have never qualified there. The decree of the chancery court did not authorize sales out of the jurisdiction in express terms, and we are unwilling to assume that such power was implied. The purchasers have not been brought before the court, so that we might affect them by our decree. We think these sales were invalid, and the executors cannot have credit for the notes of the purchasers, and will be chargeable for the rents of the property as if no sale had been made." of facts. The record of the county court time the said Eulalie Lillie had given to included the depositions on which the cause Karl W. Kendall notes aggregating $12,500. was originally tried. The district court On April 27, 1909, these notes, together affirmed the order of the county court in with other claims, were proved against the all respects, and an appeal was taken from estate in Iowa and were allowed by the this order to the supreme court. The facts court and are now unpaid. The decedent as disclosed by the record, and the stipula- also during her lifetime gave to petitioner tions, are as follows: Eulalie Lillie at the the First National Bank of Marion, Iowa, time of her death was a resident of Marion, her notes to the amount of $2,000. On in the state of Iowa. On or about Decem- April 23, 1909, these notes were also proved ber 2, 1908, George L. Lillie, the respondent, against the Iowa estate, and were allowed filed a petition in the district court of Linn by the court in the sum of $1,650, which county, Iowa, asking that the estate of sum is still unpaid. Decedent left no real Eulalie Lillie be admitted to probate, and estate in the state of Iowa and only $200 in the proceeding thus started an order in personal property. Decedent left no perwas made appointing L. C. Dow and Jose- sonal property in North Dakota, but did phine Lillie, two of the petitioners above leave real estate which was appraised in the named, as administrators. During her life-'probate proceedings at $14,400. During There seems, in the absence of statute, to be no reason why the power of the local court should be restricted to cases where it is shown that the personal property in the place of principal administration is insuflicient to pay the debts. Thus, it has been held that the real property ought to be sold for the payment of debts without showing the want of personal property available for that purpose in the domiciliary administration. Lawrence's Appeal, 49 Conn. 411; Rosenthal v. Renick, 44 Ill. 202; Gilchrist v. Cannon, 1 Coldw. 581. In Lawrence's Appeal, supra, where the executors of a decedent resident in New York proved his will there, took the rents of Connecticut real estate, and refused payment of claims of Connecticut creditors, although there was sufficient personalty in New York to pay all claims, it was held proper that eight years after his death at the request of a Connecticut creditor, the Connecticut court should admit the will to probate, appoint a local administrator with the will annexed, and should order land in Connecticut to be sold for the payment of claims in Connecticut. The court observed that it might well be found that the executors had refused to prove the will in Connecticut. In Rosenthal v. Renick, supra, the executor of an Ohio will having died, letters with the will annexed were granted to two different persons respectively in Ohio and Illinois, and some claims being filed in Illinois, it was held that the Illinois land might be sold for the payment of debts without showing that the personal property in Ohio was exhausted. Where administration on the estate of a resident of Arkansas was taken out in Tennessee, where there was real property and a small amount of personal property, it was held that it was proper for the court of Tennessee to administer the estate and sell the land for the payment of the debts, if it appeared that there were debts exceeding the personal property, some of the creditors being residents in other states, without reference to the situation of the estate in Arkansas or to its solvency. Gilchrist v. Cannon, supra, where the court said: "It is an admitted principle of international law, that every state has the right to control and dispose of property actually within its jurisdiction; and it is the duty of every state to protect the rights of its own citizens, and to aid them in the recovery of their just debts, without the necessity of resorting, for satisfaction, to the distant forum of the original administration." See also Partee v. Kortrecht, 54 Miss. 66, infra, "When the local administration is considered principal." It was held in Prescott v. Durfee, 131 Mass. 477, that the Massachusetts probate court had jurisdiction to grant administration of the estate of a nonresident leaving only real estate in Massachusetts, although at the principal place of administration there was more than sufficient personal property to pay all his debts. The purpose of the application, it appears, was to subject the real estate in Massachusetts to a claim against the decedent by suit pending at the time of his death and under which the real property in Massachusetts had been attached. But it has been held that the creditors ought, in the first place, to attempt to collect their claims at the place of domiciliary administration. Thus, where a testator resident in Louisiana died, leaving a will probated there, but was intestate as to real estate in Massachusetts, and there was an ample fund of personal property for the payment of all his debts in Louisiana, it |