McLennan

This action was brought by Donald Mc-Lennan, now deceased, and was tried, judgment entered, and notice of intention to move for a new trial served and filed during his lifetime.' After his death his administrator, the present plaintiff, was substituted, and a new trial refused.

From the order made in the premises the plaintiff appeals.

The action is to recover of the defendant, a banking corporation, the sum of ten thousand dollars and interest. It is alleged in the complaint that on the twenty-seventh day of November, 1869, the Mission and Pacific Woolen Mills, Consolidated, a corporation, made, executed, and duly indorsed and delivered to the plaintiff a certain promissory note for ten thousand dollars; that upon the receipt of that note, the plaintiff deposited it with the defendant, to be collected in due course of .banking business; that the note and certain accrued interest thereon were paid by the maker of the note to the defendant on the twenty-sixth day of April, 1870; that after-wards; on the 26th of August, 1875, the defendant closed the doors of its bank, stopped payment, etc., and refused to pay the plaintiff the money collected by it for him.

The defense was, that…