guides in correctly applying rules of construction, or as containing correct statements of those rules. Perhaps it may not be out of place here to advert to one or two of the general rules of construction applicable to the present case. In the first place a municipal cor. poration can exercise no power which is not in express terms or by fair implication conferred upon it. Thomson v. Lee Co., 3 Wall. 327; Minturn v. Larue, 23 How. 435; Willard v. Borough of Killingworth, 8 Coun. 247; City of Bridgeport v. Housatonic R. Co., 15 id. 475. In the next place, any doubt or ambiguity arising out of the terms used by the Legislature must be resolved in favor of the public. Minturn v. Larue, supra; Suth. Stat. Const., § 380, and cases cited in foot-uote. Restrictions on the building or repairing of wooden structures in the populous part of a city, commonly designated as "fire limits," are invasions of private right, and are to be strictly confined to their literal import. Suth. Stat. Const., § 367; Booth v. State, 4 Conn. 65. Lastly, the words of the charter, from which it is claimed the power in question is granted, must be construed in connection with the entire charter, and in view of the general legislation in our State in matters of this kind. So far as we are aware general language like that here in question has never, by the profession or by the Legislature, been deemed sufficient to confer authority to establish fire limits. So far as we know in this State the right to establish fire limits has been exercised only in cases where such power has been expressly conferred. This of course ought not to control in a question of construction, but in ascertaining the legislative intent, in a given case, it is entitled to some consideration. Coming now to the more particular consideration of the clause in question, we observe that even if it stood alone, in a section by itself, to construe it as conferring power to establish fire limits would be a very forced construction. It would be opposed to the fair, natural meaning of the words employed. They naturally import just what the burgesses are empowered to do in section 17. If this clause is to be construed as the borough claims, then section 17 is entirely superfluous and unnecessary, for under it the burgesses can do all that section 17 empowers them to do and very inuch more. Again, when the power to establish fire limits has been expressly granted by the Legislature, it has been customary in the charter to set some limits to the exercise of such an important power; but if in the case at bar these general words confer such a power, it is given practically without limits, save the discretion of the burgesses, tempered perhaps to some slight extent by the power of repeal vested in the Superior Court. Under such a construction the burgesses could not only prohibit the erection of wooden buildings within any part of the borough, but they could cause any such buildings erected long before the passage of the by-law to be destroyed or removed, perhaps at the expense of the borough, if in their judgment adequate protection against fire demanded their destruction or removal. Indeed it is difficult to see why they might not prohibit absolutely the erection of any kind of a building in some parts of the fire limits for the same reasou. A construction that leads to such consequences is not to be adopted if any more reasonable one is possible. We think it quite clear that a more reasonable construction can be and should be given to these words. They do not stand alone in a section by themselves. They are to be read and understood in connection with the other parts of the charter, which empower the burgesses to deal with the occurrence of fires. In section 17 the Legislature had dealt very fully and in detail with this matter. It had in that section, in express words and very clearly, given to the burgesses such power in this respect as it saw fit to confer. It had also in other sections conferred on them very fully the power to deal with garbage, filth and all matters injurious to health. In section 20 quite a number of minor matters are provided for, and at the end, as a sort of omnibus clause, come the words, "and in general to provide adequate protection against fire, and to pass suitable police and health regulations in said borough." We think this clause, "to provide adequate protection against fire," is to be read as if it stood at the end of section 17. When thus read it cannot fairly be regarded as an additional and further grant of power, not already given in the section, but as an amplification or enlargement, if necessary, of the specific powers therein given. The generality of the words is thus restrained by what precedes them. Such a construction brings this clause into harmony with the other parts of the charter, gives it all the force to which it is fairly entitled and avoids the consequences to which reference has already been made. For these reasons we think the burgesses had no power to pass the by-law of 1891, and that the court below ought to have so held, and to have overruled the de murrer. Furthermore, on the principles already laid down, the judgment below is erroneous in another respect. The court below found the third section of the by-law of 1891 to be unreasonable because it was made applicable even to those who might only occupy a building erected contrary to the provisions of the by-law. The court thereupon, instead of repealing the by-law or the section, in effect amended it by striking out the words occupy" and "occupation." This was in effect making a new section, not repealing the old one complained of. This point is not assigned for error, but under the circumstances we think we are at liberty to notice it, and we ought to do so. 46 he sustained to it the relation of passenger. Dwinelle v. R. Co., 120 N. Y. 117; Carpenter v. R. Co., 97 id. 494; Stewart v. R. Co., 90 id. 588. The validity of the judgment is challenged by many exceptions, of which two only need be subjected to consideration. In compliance with a request of the plaintiff the judge charged: "If the jury find that the plaintiff, at the time he was ejected from the platform, was not committing any breach of regulation or other misconduct, and was not intoxicated, they have a right to find that the attempt to eject him was an utterly inexcusable assault and battery, for which the defendant may be held liable for punitive damages," to which instruction the defendant duly excepted. Upon its terms the proposition submitted to the jury cannot be upheld. It affirms that the plaintiff, being without fault, the attempt to eject him of itself subjected the defendant to punitive damages, whereas the law is that the denunciation of punitive damages is directed against the evil intent of the wrong-doer, and in the absence of that intent is unwarrantable. Hamilton v. Third Avenue R. Co., 53 N. Y. 25. lic, punishment should be inflicted, common justice How stands the question upon authority. In Ricketts v. R. Co., 33 W. Va. 433; 25 Am. St. Rep. 901, the law is propounded thus: "A railway corporation is not answerable in exemplary damages for an assault on a passenger by one of its agents, made in a malicious, unlawful and unnecessary manner, when there is no evidence that it was ever authorized, ratifiled or approved by the corporation, or that the servant was incompetent or of known bad character." A recent writer of repute says: "The better and more reasonable doctrine seems to be that the railway company is not to be held liable in exemplary damages for injuries caused by the negligence of its servants, unless it be shown that the servant's act was willful, and was either authorized or ratified by the company." Pat. Ry. Ac. Law, p. 471, § 392. It may be, and the evidence tends to establish, that defendant's servants, in ejecting the plaintiff, honestly and reasonably believed him to be guilty of misconduct, in which event they, and a fortiori the defendant, would not be liable beyond the measure of mere compensation. And yet, without reference to the intent of the defendant's servants, whether good or bad, the charge authorized the jury to award punitive damages simply upon the ground of an unjustifiable assault on the plaintiff. Here was clear error (Hamilton v. R. Co., 53 N. Y. 25, 29-30); and since for any thing apparent in the record, the jury exonerated the servants from improper motive, the error is inevitably fatal to the judgment. Cleghorn v. R. Co., 56 N. Y. 44, 49. Assuming however that the persons who inflicted the injury on the plaintiff were responsible to him in punitive damages, still the defendant was not so answerable merely because of its relation to the actual wrong-pable, of a servant while engaged in the business of the doers; and if this proposition be correct, it follows that, since the charge imputed liability for punitive damages to the defendant because simply of that relation, the instruction involves a vicious principle, and is again fatal to the judgment. The principle of punitory damages in a civil action crept into the jurisprudence of England by imperceptible approaches, is recognized by no other system of law, and is impugned by writers and judges of authority, as illogical, unphilosophical and pernicious to the administration of justice. 2 Greenl. Ev., $253, note 2; Fay v. Parker, 53 N. H. 342; 16 Am. Rep. 270; Murphy v. Hobbs, 7 Col. 541; 49 Am. Rep. 366, 370: Stewart v. Maddox, 63 Ind. 51; Spokane, etc., Co. v. Hoefer, 2 Wash. 45; 26 Am. St. Rep. 842. Conceding the doctrine to be incorporated into the jurisdiction of this State, the question for adjudication is whether, for the willful tort of his servant, a master, without more, is liable in punitory damages? Upon principle, the answer is obviously in the negative. Since punitory damages are inflicted as a punishment for the evil intent or bad conduct of the wrong-doer, and since ex hypothesi the master is guilty of no such intent or conduct, in reason and justice he is not amenable to the penalty. When there has been no intentional offense committed, when a party has only done what he honestly believed to be his duty, punishment is not deserved." Grover, J., in Hamilton v. R. Co., 53 N. Y. 30. Nor are the absurdity and injustice of the contrary rule mitigated, but aggravated rather, by the imputation of the guilt of the servant to the innocent master. Vicarious punishment is not a principle of human law. A judgment for compensatory damages affords a plaintiff complete reparation for his injury; and if, in the interest of the pub But whatever the weight of decisions abroad, in this State at least the question is concluded by authoritative adjudications. In Cleghorn v. R.Co., 56 N. Y. 44, the proposition is: "For negligence, however gross or cul master, the latter is not liable in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established however by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant, knowing that he was incompetent, or, from bad habits, unfit for the position he occupied." And in Fisher v. R. Co., 34 Hun, 433, the Supreme Court in the First Department, per Daniels, J. (Davis and Brady, JJ., concurring), ruled that "a railroad company cannot be held liable for punitive damages unless shown to have been itself guilty of gross neglect or misconduct." Such being the law of New York, the error in the charge under criticism is manifest, and consists in the omission of the requisite qualification of the liability of a master in puuitory damages for the tort of the servant, namely, the privity or misconduct of the master himself. "We cannot say but that the jury may, under the charge, have allowed exemplary damages without finding the necessary facts authorizing them to do it, and hence the defendant may have been injured by the charge. We are constrained to hold that the charge was erroneous in this respect; the rule, with its limitations, should have been explicitly stated." 56 N. Y. 49; 34 Hun, 433. In the case at bar the magnitude of the verdict itself imports an allowance for punitive damages; and supposing the evidence to authorize such allowance, still we are unable, under the charge, to say that the jury did not render the verdict without finding the defendant guilty of any participation in the wrong or other misconduct. A reversal of the judgment results therefore without any reference to the state of the evidence. We may add however that upon a critical examination of the record we find no proof of any misconduct of the defendant. The only circumstance adduced to fix the defendant with exemplary damages is the alleged fact that "after the ticket agent reported the occurrence," and the plaintiff commenced his suit, the defendant did not discharge the servant, but resisted the action "upon the sole issue that the plaintiff was guilty of misconduct, and that the servant had a right to eject him." It is not apparent that the defendant was apprised of the wrongful nature of its servant's act, without which knowledge there could be no ratification; but, on the contrary, by the very terms of counsel's proposition, it is manifest that the defendant believed its servant innocent of any wrong, and rightfully ejected the plaintiff because of misconduct. But to authorize an inference of ratification, it must appear that the party ratifying had knowledge of all the facts and circumstances attending the transaction. Vincent v. Rather, 31 Tex. 77; 98 Am. Dec. 516; Gulick v. Grover, 33 N. J. Law, 463; 97 Am. Dec. 728, and note; Billings v. Morrow, 7 Cal. 171; 68 Am. Dec. 235, and note. company cannot be held to ratify an assault and battery committed by its servant, by retaining him in its service, where it believed his account of the affair, and thought it just to maintain the status quo until a judicial determination of the matter." Williams v. Pullman, etc., Co., 40 La. Ann. 87; 8 Am. St. Rep. 512. "A The judgment is invalidated by another and still. more obvious error in the charge. A question of moment on the amount of damages, and strenuously contested on the trial, was whether plaintiff's injuries would in time pass away, or develop ultimately into some fatal form of mental malady. The issue hanging in suspense on a balance of expert testimony, the learned trial judge charged that "if the jury believe, from the evidence of the physicians called on the part of the plaintiff, that the injuries which the plaintiff had sustained will develop into some serious conditions hereafter, the plaintiff is entitled to recover damages for such pain and suffering as the jury believe he will sustain.” THIS HIS was an application by the plaintiff for judgment or for a new trial, upon appeal from the verdict and judgment, at the trial before Hawkins, J., and a jury in Middlesex. The plaintiff brought this action to recover damages for an alleged libel published by the defendants concerning him. The libel complained of was a short report sent by the defendants to several newspapers, as follows: "Alleged Perjury by a Solicitor.-Mr. W. H. Thompson, barrister, applied at the Guildhall, Canterbury, to-day, for a summons against Edward Kimber, solicitor, of Alpine Villas, Shooter's Hill, and 15, Walbrook, for perjury alleged to have been committed in the Canterbury Bankruptcy Court, in connection with some bankruptcy proceedings." This summons was, upon the hearing, dismissed. At the trial, before Hawkins, J., and a jury, the plaintiff called as a witness the clerk to the justices, who proved the following facts: Three justices were sent for, and sat in the justices' room in the Guildhall, the place where they usually sat. The public were admitted, and some members of the public and a reporter were present. No order to exclude the public was given by the justices. Counsel, on behalf of one Hasker, made an ex parte application, without any evidence upon oath, for a summons for perjury against the plaintiff alleged to have been committed in the proceedings in the bankruptcy of a person who was named. The summons was granted. From this evidence it appeared that the report was accurate in all its statements, and that the only omissions were the names of the applicant and of the person in whose bankruptcy the perjury was alleged to have been committed. At the close of the plaintiff's case the learned judge held that the communication was privileged, and directed the jury to find a verdict for the defendant. The plaintiff applied for a new trial. Candy, Q. C., J. E. Fox and Alan Macpherson, for appellant. Murphy, Q. C., and Blake Odgers, for respondents. Lord ESHER, M. R. I am of opinion that this appeal must be dismissed. The question is whether that which was done by the defendants was privileged by the law of England. The rule is that where there are dicial tribunal, which judicial tribunal is exercising its Thus in terms the determination of the disputed fact material to the amount of recovery was submitted to the jury on the plaintiff's evidence alone, to the exclusion of all contrary evidence adduced by the defendant. Argument is unnecessary to demonstrate the mischievous illegality of this instruction. The direc-judicial proceedings before a properly-constituted jution to the jury should have been to ascertain the fact upon all the evidence. State v. Whit, 72 Am. Dec. 548. | jurisdiction in open court, then a fair and accurate acAs we cannot know but that the fact was found for the plaintiff upon the strength of his evidence, and in total disregard of the contradictory testimony produced by the defendant, the proposition presented to the jury necessarily requires a reversal of the judg ment. Judgment and order reversed, and a new trial directed, costs to abide the event. DALY, C. J., and BISCHOFF, J., concur. LIBEL-PRIVILEGE-REPORT OF JUDICIAL PROCEEDINGS-EX PARTE APPLICATION TO JUSTICES FOR SUMMONS. ENGLISH COURT OF APPEAL, OCT. 26, 1892. KIMBER V. PRESS ASSOCIATION.* A fair and accurate report, published without malice, of an ex parte application made before justices in open court for a summons for perjury, is privileged. *67 L. T. Rep. (N. S.) 515. count published by any one of what then took place is privileged. Under certain circumstances such publication may be hard upon a person who is named in the report, but considerations of public policy require that such hardship should be endured rather than that judicial proceedings should be conducted in secret. If judicial proceedings were conducted in secret it might be productive of greater mischief than if the character of an individual should be for a time injured by an unfounded charge. The proposition of law is this, that if there is a judicial proceeding before a judicial tribunal, and in open court, a fair and accurate account of what then took place is privileged, if it is published without malice. That being so, we have to consider whether the present case is brought within that rule. This was a case in which a summons was asked for before magistrates against the plaintiff upon a charge of perjury. Now magistrates have jurisdiction to hear such an application; they are a legally-constituted body, having jurisdiction to determine whether such a summons shall issue or not. The issue of such a summons is a judicial proceeding, and the consideration thereof is a judicial proceeding, and these are judicial proceedings taken before a judicial tribunal properly lish a fair and accurate account of the preliminary proceedings. Then must an application for a summons, such as was made in this case, end in a final determination? If it is refused, that is a final determination. If the summons is issued, then the matter must proceed to a further inquiry, and then perhaps to trial, and at some stage of the proceedings there must be a final determination of some kind or other. That brings this case entirely within the rule, and a fair and accurate report of the proceedings upon an application for the issue of a summons, which is granted, may be published. Upon the next point, as to the onus of proof, for myself I am of opinion, that to claim privilege and to justify the publication during the course of a trial, the defendant must show that the report is a fair and accurate one, published without malice; that is to say, the burden of proof is on the defendant. A person on whom the burden of proof lies may however vouch the evidence adduced by the plaintiff, to supply that proof, and not adduce any evidence himself. question in this case then is whether the plaintiff himself did not do that which enables the defendant to say that what it was necessary for him to prove was proved in this case by the plaintiff, viz., that the report published in this case was a fair and accurate report. The plaintiff called a witness, who proved what took place. Every thing which is stated in the alleged libel did in fact take place, but it is said that there were omissions which made the report an unfair and inaccurate report. Two omissions were specified. There was nothing during the proceedings to show that the applicant was a peculiar person, and the judge at the trial was of opinion that the omission of the applicant's name was, under those circumstances, clearly The constituted for the purpose. This case is therefore so far within the rule. It is said however that although the magistrates were a judicially constituted body, and were exercising judicial functions, yet they were not doing so in open court. For the purposes of that contention the statute 11 and 12 Victoria, chapter 42, was cited, and it was said that that statute enacts that when magistrates are dealing with matters of this kind they are not acting in open court, and section 19 was relied upon. That section however does not apply to an application for a summons, and therefore does not apply to this case. It was argued that the statute provides that at a later stage of the proceedings the court is not to be deemed an open court, and that therefore it would be ridiculous if the court were an open court at the earlier stage of the proceedings. I cannot see any force in that argument. But even the first proposition is not proved, because section 19 says that the justices may order the court to be closed. The section is as follows: "The room or building in which such justice or justices shall take such examinations and statements * ** shall not be deemed an open court for that purpose; and it shall be lawful for such justice or justices, in his or their discretion, to order that no person shall have access to, or be or remain in such room or building without the consent or permission of such justice or justices, if it appear to him or them that the ends of justice will be best answered by so doing." It is obvious from that that the justices have a discretion to decide whether the public shall be present or not, and that they may decide not to exclude the public, in which case they sit in open court. The effect of section 19 is that the court, for the purposes therein named, cannot be deemed to be an open court so as to deprive the justices of any power of clos-immaterial, and that there was no question for the ing it. That is not, as I have said, applicable to the case of an application for a summons, and there is consequently no enactment, except the provisions of section 1, of the same act, which applies. Section 1 provides when "a charge or complaint shall be made before any one or more of justices * * * that any person has committed * * an indictable offense, such justice or justices may issue a summons directed to such person, requiring him to appear before the said justice or justices at a time and place to be therein mentioned." Justices are by that section a legally-constituted authority to exercise a judicial discretion in a judicial proceeding, and that must be done in open court unless there is any enactment to the contrary. This proceeding was therefore taken in open court. * * * * | jury upon that. The other omission was that the report did not state the name of the person in whose bankruptcy the perjury was alleged to have been committed, and it was suggested that some persons might think that the plaintiff himself was the bankrupt. The judge thought that also quite immaterial, and I agree with him. The appellant's counsel has admitted that only an idiot could suppose any thing of the kind. In this case therefore the plaintiff has saved the defendant from the necessity of proving that this was a fair and accurate report, for it was proved by the plaintiff's own witness that it was so. The judge at the trial was justified in holding that it was proved beyond the possibility of doubt that the report was fair and accurate, and that there was consequently no question for the jury. This appeal fails, and must be dismissed. It was further argued that a report of the proceedings must not be published unless the magistrates have LOPES, L. J. I am of the same opinion, and think given a final determination. If there are judicial pro- that I cannot add much to what the master of the rolls ceedings which, in the result, lead to final determina- has said. This appeal must be dismissed. The rule tion, although that stage is not arrived at, yet a fair of law, founded upon principles of public policy and and accurate account of the proceedings may be pub- convenience, is that no action for libel can be mainlished before the final determination. That was really tained in respect of a report of judicial proceedings the decision of Lord Campbell in Lewis v. Levy, E. B. taken before persons acting judicially in open court, & E. 537; and I think that in Usill v. Hales, 3 C. P. where the report is a fair and accurate report of those Div. 319, the early part of the judgment of Lord Cole- proceedings, and is published without malice. That is ridge, C. J., seems to show that he would have held, if clear law, and all those requirements have been strictly he had not considered himself overborne by authority, complied with in this case. There were proceedings that the refusal of a summons upon an ex parte appli- before magistrates, and a summons was issued in cation was not a final determination in open court, a the ordinary and proper way. The applicant came bereport of which would be privileged; he however fore the magistrates in the ordinary and proper way, in thought that such a proposition was overruled by au- the place where they usually sat, and the justices had thority. It was because of that expression of opinion a discretion to grant or refuse the application. It is by Lord Coleridge that Lopes, J., I think, treated the first argued that the application was not heard in open subject rather tenderly, but came to the conclusion court, and in support of that argument section 19 of 11 that a report might be published of preliminary pro- and 12 Victoria, chapter 42, was relied upon. That secceedings if in the end they must result in a final deter- tion, in the first place, is not applicable to an applicamination. I think that the law must be so. The law tion for the issue of a summons or warrant at all; and then is, that where there are proceedings, which in the further than that, the effect of the section is only to end result in a final determination, any one may pub-give the justices a discretion to close the court and to sally lawful; but we are not prepared to lay down for law that the publication of such inquiries is universally unlawful." It does not follow therefore, looking at that dictum alone, that a report of ex parte proceedings such as these is universally lawful. I agree however that the later decisions have gone much further than that, and it is so important that judicial proceed exclude the public, and either they must do that or the court is an open court. This application therefore was made in an open court. Another point was raised, viz., that this was an ex parte application, and that a report of it was therefore not privileged. Two cases have decided that point against the contention of the appellant (Lewis v. Levy, ubi supra, and Usill v. Hales, ubi supra), and it fails. Then it is said that the deter-ings should be conducted in public and be published, mination must be a final determination, and that if it is not, there is no privilege. There may perhaps be some words in the judgments in Usill v. Hales, ubi supra, which favor that view. My opinion however is that a fair and accurate report may be published of any preliminary proceedings before a judicial tribunal if those proceedings must ultimately lead to a final determination. For instance can it be said that the proceedings in a coroner's court cannot be published because they are not final, or that a report of one day's proceedings cannot be published because the whole proceedings last more than one day? No; I am clearly of opinion that an account of preliminary judicial proceedings, if they are leading to a final determination, may be published. It is lastly argued that the question ought to have been left to the jury whether this was a fair and accurate report. If there was any evidence whatever that it was not a fair and accurate report, the question should have been left to the jury. It is however clear to me that there was nothing to leave to the jury. The plaintiff relied solely on certain omissions in the report--they were two, viz., the name of the applicant and the name of the person in whose bankruptcy the perjury was alleged to have been committed. That is all that the plaintiff complained of in the report. It is perfectly clear to me that the judge at the trial could properly say that those omissions did not show that the report was not fair and impartial, and acting upon the case of Capital and Counties Bank v. Henty, 47 L. T. Rep. (N. S.) 662; L. R., 7 App. Cas. 741, say that it would be impossible for a jury to find that the report was not fair and accurate, and that judgment ought to be entered for the defendants. This appeal fails and must be dismissed. KAY, L. J. I agree entirely, but will state my own grounds for doing so, because the question is a most important one. It might happen that the character of an innocent man might be irretrievably damaged by a report of ex parte proceedings, at which he was not present and of which he knew nothing, founded only upon a statement made by counsel. In this case there was an application for a summons against the plaintiff for alleged perjury; no sworn testimony was given, but only a statement made by counsel; and a report was published of those ex parte proceedings, at which the plaintiff was not present, and of which he did not know. If privilege exists in such a case, it is essential that we should be guided by the strict rule of law, and this case must be closely examined so as to see that no injustice is done by allowing the privilege under the circumstances of the case. The application for the summons was not made at the ordinary Petty Sessions, but two justices were called in, and they sat in the justices' room, and the application was made before them. No suggestion was made to the justices to close the court and exclude the public, and that was not done. There was therefore an application to justices, who were required to act judicially, and that application was made at the usual place, and the court could not be considered to be a closed court. The public were present, and it was an open court. What then is the law applicable to this case? The words of Lord Campbell, in Lewis v. Levy, ubi supra, are: "We are not prepared to lay down for law that the publication of preliminary inquiries before magistrates is univer that that consideration seems to me to outweigh any Appeal dismissed. NEW YORK COURT OF APPEALS AB- CONVERSION-BY PLEDGEE DAMAGES. - Plaintiff, who had contracted to build a railroad, received from the company notes for payment for his services which he delivered, without indorsement, to G., to secure him for advances made by G. to carry on the work of construction. G. afterward presented claims to the company for the advances made by him, and received in exchange for a part of the notes second mortgage bonds of the company, and allowed it seventy-five per cent on the par value of such bonds. He made an entry in his books crediting plaintiff with seventy-five per cent of the value of all the notes delivered him by plaintiff as security, and charged the company with the whole amount of the notes, crediting it to the amount allowed it on the bonds, and afterward delivered it the balance of the notes without consideration. Plaintiff never knew of the entry crediting him with |