the asignors and their creditors did not receive notice of the accounting had before the court in July, 1895; on the contrary, the complaint is drawn upon the theory that plaintiffs or their predecessors in interest were one and all regularly cited to appear at such accounting. But the plaintiffs, by proper averments of fact, do show that the accounting was false and fraudulent, and that the court was deceived and hoodwinked by the false account of the defendant, and that, if the court had not been so deceived, it would not have entered its decree discharging defendant and his bondsmen. But the greatest stress is laid by counsel for the respondents upon the fact that the complaint sets out certain facts showing that the creditors especially were deceived to their prejudice by defendant, in this: that the defendant falsely represented to the creditors, immediately prior to the date of said accounting, that the trust property had, prior to the accounting, been all disposed of by him, and that the net proceeds, less the expenses incident to the trust, had been divided pro rata among the creditors of said insolvent firm. Upon this representation it is alleged, in substance, that the creditors deemed it unnecessary and useless to attend court, and hence they remained away, and did not appear at the accounting. These facts show that the plaintiffs in this action are seeking to impeach a former decree of the district court upon the ground of fraud, and that the fraud complained of is of a twofold nature, in this: that it deceived the court which entered the judgment, and likewise so operated that it induced the plaintiffs and their privies not to appear in court at the hearing of defendant's final account. With respect to judgments procured by frauds of this character it goes without saying that the courts will, and always have, upon proper application, set aside the same. Under the old procedure judgments procured by such frauds as appear in this case could be vacated, or their enforcement enjoined, by a suit instituted in a court of equity. See Kitzman v. Manufacturing Co., 10 N. D. 26, 84 N. W. Rep. 585. But in that case this court said: "But it is further true that under the code procedure certain statutory provisions, such as that embraced in section 5288, have afforded a remedy by motion as a means of relief against judgments which, prior to the adoption of their code, was obtainable only in courts of equity. As a result of these innovations upon the ancient procedure, it has seldom been found necessary in the code states for a suitor to enjoin the enforcement at law by means of an independent action for equitable relief." This remedy by motion is available in equity cases as well as those at law. 6 Enc. Pl. & Prac. 151. In the Kitzman Case a demurrer to the complaint was sustained upon the express ground that the remedy by motion was available to the plaintiff in that action, and we there held that an independent action would not lie where the remedy by motion is available to the suitor. We think the ruling in that case rests upon sound reason, as well as upon good authority, and hence the rule

v.

should be adhered to in the interest of an orderly and uniform practice. See Johnston v. Paul, 23 Minn. 46; also, Weilan Shillock, Id. 227. It seems that in Wisconsin the relief such as is sought here can be obtained only by motion. Stein v. Benedict, 83 Wis. 603, 53 N. W. Rep. 891; Pier v. Millerd, 63 Wis. 33, 22 N. W. Rep. 759. But in California the cases hold that, where it appears that without plaintiff's fault the remedy by motion is not available, an independent action will lie. See Sugar Co. v. Porter, 68 Cal. 369, 9 Pac. Rep. 313; Lapham v. Campbell, 61 Cal. 296; Baker v. O'Riordan, 65 Cal. 368, 4 Pac. Rep. 232. But the rule is well settled and inflexible that, where an action is brought in a court of equity to enjoin or vacate a judgment, facts must be alleged excusing the failure to resort to all remedies available in the original action (11 Enc. Pl. & Prac. 1193); and in such cases the plaintiff must plead facts in excuse of his laches and tending to show that he has acted promptly after discovering the fraud. Hollinger v. Reeme, 138 Ind. 363, 36 N. E. Rep. 1114, 24 L. R. A. 46, 46 Am. St. Rep. 402; Renfroe v. Renfroe, 54 Mo. App. 429; George v. Tuft, 36 Mo. 141. In Iowa, under a statute which permitted a court to vacate a judgment obtained by fraud within one year after its rendition, it is held that, if the injured party was prevented by fraud from moving within the year, a court of equity would permit him to institute an action for relief after the year. See Lumpkin v. Snook, 63 Iowa, 515, 19 N. W. Rep. 333. But in such cases sufficient reasons for the delay by the party must be pleaded asking for relief in a court of equity. See District Tp. v. White, 42 Iowa, 608. The statutory remedy by motion is, however, not the only mode of assailing a judgment. In cases not embraced within the statute resort may be had to a court of equity. See Smithson v. Smithson, 37 Neb. 535, 56 N. W. Rep. 300, 40 Am. St. Rep. 504. So it has been held that equity will take juridiction to annul a void judgment, even where a motion would lie for the same purpose Void judgments are not strictly within the statute On this point, see Dobbins v. McNamara, 113 Ind. 54, 14 N. E. Rep. 887, 3 Am. St. Rep. 626; Heffner v. Gunz, 29 Minn. 109, 12 N. W. Rep. 342; Magin v. Lamb, 43 Minn. 80, 44 N. W. Rep. 675, 19 Am. St. Rep. 216; also, Yorke v. Yorke, 3 N. D. 343, 55 N. W. Rep. 1095. But we think the case at bar squarely falls within the principle of theKitzman case, supra. In that case the plaintiff brought an independent action to vacate a judgment of the district court obtained by fraud, and this court sustained a demurrer to the complaint. That case was quite similar to this with respect to the nature of the fraud charged in procuring the judgment, and also as to the very great length of time which elapsed after the entry of the fraudulent judgment and before suit was brought to vacate the same. In that case the demurrer was sustained, not because fraud in procuring the judgment was not shown, but was sustained upon the sole ground that the plaintiff omitted to set out facts explain

ing and excusing his failure to seek his remedy by motion made in the original action. The complaint in the case at bar is obnoxious to precisely the same objection. The plaintiffs in this case have neither alleged nor attempted to allege any facts or circumstances by way of excuse for their failure to apply by motion in the assignment proceeding to vacate the judgment of discharge which they are now seeking to vacate by an independent action. The discharge of the defendant and his bondsmen was clearly in the nature of a final decree or judgment in an equitable proceeding; but, whether the same should be regarded as a judgment, or as merely an "order or other proceeding," it is alike assailable by motion in the insolvent proceeding. See Comp. Laws, § 4939. Under a familar rule of pleading it is the duty of this court to construe this complaint most strictly against the pleader, and the reason of this rule. is that it is presumed that any fact favorable to the pleader, within his knowledge, will be set out in the pleading. Applying this rule, we are bound to assume for the purposes of the demurrer that the plaintiffs had knowledge of the very acts of fraud of which they now complain at a date prior to the expiration of the statutory limit of one year within which a motion to vacate the judgment could have been made. No time is stated in the complaint at which the plaintiffs, or any of them, discovered the fraud of which they are complaining, and hence we must assume for the purposes of the case on this appeal that such discovery was made in fact within a year after the judgment complained of was entered. But we must not be understood as ruling or suggesting that under no circumstances can the remedy by motion be had after the time limit fixed by the statute has elapsed. Such is not our view of the statute, and this court has distinctly held, under certain conditions, that the remedy by motion is not limited to one year after the judgment or order has been entered. See Manufacturing Co. v. Holz, 10 N. D. 16, 84 N. W. Rep. 581. In the case cited the remedy by motion in the action was sought seven years after the entry of the judgment, but within one year after notice of such entry, and it was ruled that the motion was not barred by lapse of time. It has been seen that the courts of California have been very liberal in construing the statutory remedy, and have permitted actions to be brought for the relief provided by the statute; but in all such cases the plaintiff has alleged facts in excuse of his laches in not proceeding by motion under the statute. In the case at bar, upon the facts set out, the plaintiffs had ample reason for their nonappearance before the district court when they were cited to appear at the final hearing of the defendant's account in July, 1895, and that reason would have excused their default and their nonappearance at such hearing. Their neglect was clearly excusable, and hence the case was one strictly within the statute, and in which the court could have afforded equitable remedies by motion.

Our conclusion is that the order overruling the demurrer must be

reversed, and the case remanded for further proceedings. judges concurring.

(88 N. W. Rep. 721.)

JOHN DRINKALL vs. MOVIUS STATE BANK.

All the

Cashier's Check Not Open to Countermand.

A cashier's check, being merely a bill of exchange drawn by a bank upon itself, and accepted in advance by the act of its issuance, is not subject to countermand, like an ordinary check, and the relations of the parties to such an instrument are analogous to those of the parties to a negotiable promissory note payable on demand. Indorsement-Illegal Consideration.

Both under elementary principles of the law of contracts and by the provisions of § 59 of chapter 100 of the Civil Code (Rev. Codes 1899), the title of an endorser of a negotiable note is defective when the consideration for the indorsement is unlawful, or where the indorsement is procured by unlawful means.

Payment in Good Faith a Discharge.

Payment of a negotiable instrument, to effect a discharge, must be made to the rightful holder or his authorized agent; but the mere possession of such an instrument indorsed by the payee in blank is prima facie evidence of the holder's right to demand and receive payment, and payment to such holder will discharge the instrument, when made in good faith, and in ignorance of facts which impair the holder's title.

Gambling--Illegal Consideration.

Under the statutes of this state gambling is expressly prohibited. It is accordingly held, that the indorsement and delivery of a cashier's check by the payee to a gambler in payment for chips to be used in a gambling game does not make such gambler a holder in due course, and his title so acquired is defective.

Recovery by Indorsee.

The rule that courts of law and equity will leave the parties to prohibited transactions where their unlawful acts have placed them, so far as the same are executed, does not authorize an indorsee, who has procured the indorsement of a negotiable instrument in a gambling transaction, to rely upon the indorsement so procured, either against the indorser or the maker of the instrument. Neither will prevent the payee of the instrument which has been so indorsed from enforcing payment against the maker, for the obvious reason that the contract which the latter enforces is not tainted with the unlawful transaction.

Verdict Sustained by the Evidence.

The plaintiff in this action seeks to recover on a cashier's check issued to him by the defendant, which check he indorsed and delivered to a gambler in payment for chips to be used in playing a roulette wheel. The check was thereafter paid to the gambler by the

defendant. We find there is substantial evidence in the record to sustain the finding of the jury that the defendant had notice of the defect in the gambler's title prior to making such payment, and therefore hold that it was not error for the trial court to overrule defendant's motion for a new trial, based upon the insufficiency of the evidence as to notice. Wallin, C. J., concurring.

Appeal from District Court, Richland County; Lauder, J. Action by John Drinkall against the Movious State Bank. Judgment for plaintiff, and defendant appeals. Affirmed.

Purcell & Bradley, for appellant.

Appellant indorsed his cashier's check and delivered it in return for poker chips used in a gambling game and when he was intoxicated. He was at the bank when it was presented for payment and advised the cashier not to pay the same. He did not deny his indorsement and gave no reason to the cashier why it should not be paid. There is nothing to indicate that the bank or its officers tried to avoid notice or prevented the plaintiff from making a full disclosure of his reasons for not wanting the check paid. Watson v. Walker, 23 N. H. 471; Hatch v. White, 22 Pick. 518; Lamphere v. Cowan, 42 Vt. 175. The burden was on appellant to show that Maxwell, the indorsee, was not a bona fide holder. Pennsylvania Bank v. Frankish, 91 Pa. St. 339. The cashier's check in controversy is a bill of exchange drawn by the drawer upon itself and is equivalent to an acceptance. Ch. 100, Civ. Code 1899, § 185; 1 Daniel's Neg. Inst. 444; 1 Parson's N. & B. 288; 2 Randolph's Com. Pr. 588; Hasey v. Beet Sugar Co., 1 Douglas, 193; Cunningham v. Wardwell, 12 Me. 466. A bank issuing a cashier's check has accepted it in advance and is liable to pay it to the payee or to any person to whom the payee has transferred it by indorsement. An acceptance, when once complete, is irrevocable. Byles on Bills, 198; Chitty on Bills, 347; I Daniel's Neg. Inst. 452; Anderson v. Bank, 1 McCreary, 352. This check stood on the same basis as a certified check. Morse on Banking, § 399. Appellant, as the loser in a gambling transaction, when he indorsed the check to the winner in payment of his gambling debt, fully executed the gambling contract. The bank had no concern with appellant's remedy against the gambler. As between themselves the law left the parties to the gambling transaction where it found them, and respondent cannot be injured in consequence of the transfer of the check upon the illegal consideration. Reed v. Bond, 55 N. W. Rep. 619; Kerr v. Birnie, 25 Ark. 225; Ager v. Duncan, 50 Cal. 325; Howell v. Fountain, 46 Am. Dec. 415; Morris v. Philpot, II Ind. 447; Nudd v. Burnett, 14 Ind. 25; Dumont v. Durfec, 27 Ind. 283; Clark v. Ry. Co., 5 Neb. 314; Hill v. Freeman, 49 Am. Rep. 48; Leveroos v. Reis, 52 Minn. 259. 53 N. W. Rep. 1155. The object of the rule as to executed contracts is stated in Morris v. Heinrath 101 Mass. 366, to be that either party to an illegal contract, where they are in pari delicto and the contract is executed, is not to give validity to the transaction, but to deprive