which appellant alleges would be more than respondent would be entitled to under his mortgage if a redelivery of the property could not be had.

There was no error in the ruling of the court in directing a verdict for respondent, for the very plain reason that the complaint did not allege any fact showing default in any of the conditions of the mortgage, nor that they had any condition under which it could claim possession of the property. The appellant did not make its case at the trial any broader than it had pleaded it. No evidence was introduced or offered to be introduced by appellant showing any mortgage, with conditions or breach of any such conditions. The mere fact that appellant owned these mortgages gave it no right to the possession of the property, without the happening of some event provided for in the mortgage by virtue of which it could take possession, and, if such event had occurred, it was necessary to allege and prove it.

Neither was there any error in the verdict of the jury in finding the value of the property to be $300. That was the sworn value put upon it by appellant; and while it would have been correct if the mortgagor had brought this action against respond. ent to have limited the jury to finding the interest in the property which the respondent had, yet where a third party seeks to take property from the mortgagee which he holds by virtue of a mortgage, and that third party shows no right to the possession thereof, it is the proper practice to let the jury find the full value of the property, for the very plain reason that the mortgagee is responsible to his mortgagor for the full value of the property, and is obliged to return the mortgagor any surplus which shall remain after satisfying his own claim, which he could not do without paying it out of his own funds, if he could not recover from the third party the full value of the property taken from him. No error appearing in the record, the judgment of the lower court is affirmed. All concur.

FIRST NATIONAL BANK OF LOS ANGELES, Appellant, v. DICKSON et al., Respondents.

1. Trover and Conversion-Certificates of Deposit-Measure of Damages-Weight of Evidence.

In an action for the conversion of certificates of deposit of a national bank, on the issue of their value, the fact that prior to the conversion they had been protested for non-payment, without explanation of the cause, was evidence tending to show the insolvency of the bank, such as would preclude the court from directing the verdict.

2. Same-Evidence-Opinion-Relevancy.

In an action for the conversion of certificates of deposit, on the issue of value, it is proper to inquire of a person acquainted with the financial condition of the bank issuing them, whether or not, at the time of the conversion, the bank was solvent.

3. Same-Review-Reversible Error.

In an action, for the conversion of certificates of deposit, where, on the question of value, the court had improperly excluded the evidence as to the insolvency of the maker, at the time of the conversion, the appellant was not obliged to go further and show the insolvency of his indorser, to make it reversible error.

(Argued May 17, 1888; reversed May 25; opinion filed October 1, 1888.)

Appeal from the district court of Minnehaha county; Hon. JAMES SPENCER, Judge.

Bailey & Davis, for appellants.

The face value of commercial paper, it may be conceded, is prima facie the measure of damages for its conversion.

It is competent, however, to show the insolvency of the maker or any other circumstance to lessen the damages. 3 Suth. Dam. 522; Potter v. Merchants' Bank, 28 N. Y. 641; Booth v. Powers, 56 N. Y. 22; Latham v. Brown, 16 Ia. 118; Holt v. Van Eps, 1 Dak. 206.

In another view, there was evidence that tended to diminish the value of the certificates.

They were protested before they were attached. Booth v. Powers, supra.

The testimony of E. A. Sherman, (shown to be qualified,) that he had examined the assets of the bank, should have been admitted upon the question of the value of the assets, and whether the bank was solvent.

Winsor & Kittredge, for respondent.

The respondent took the certificates with the indorsement of Young, and, in case the maker was insolvent, it had the right to look to Young to make up the deficiency. In order, therefore, to reduce the damage sustained by the prima facie case, appellants must produce evidence showing the insolvency of Young, the indorser to the respondent, as well as the insolvency of the maker, the First National Bank of Sioux Falls. Menkens v. Menkens, 23 Mo. 252.

We insist that appellants failed to show the insolvency of the maker of these certificates. To be sure, they introduced protests, but that does not prove insolvency; and, even had it a tendency to do so, it does not establish to what extent the bank was insolvent. Further, an inspection of the testimony fails to establish any proof as to the value of these certificates on the 6th day of March, 1886, the day of their conversion by appellants.

CARLAND, J. The respondent commenced an action in the district court of Minnehaha county against appellants for the conversion of three certificates of deposit issued by the First National Bank of Sioux Falls to J. B. Young, on December 24, 1885, for the aggregate sum of $4,600. The appellants justified the taking by said Joseph M. Dickson under a warrant of attachment issued in an action wherein George H. Hollister was plaintiff and J. B. Young was defendant. At the trial the respondent called the appellant Dickson, who produced the certificates of deposit, which were introduced in evidence, together with the indorsement of J. B. Young thereon, transferring the same to respondent. It was admitted that said certificates were levied upon by the appellant Dickson as sheriff on the 6th day

of March, 1886, in an action then pending wherein George H. Hollister was plaintiff and J. B. Young defendant. The respondent then rested. The appellants introduced in evidence certificates of protest showing that the certificates of deposit had been protested for non-payment prior to the date of the alleged conversion; and, after several ineffectual attempts to show that said certificates of deposit were worth less than their face value, called E. A. Sherman as a witness, who testified that he was president of the Minnehaha National Bank of Sioux Falls, and had been ever since its organization; that between February 1 and March 6, 1887, and after the bank was attached, he looked over the assets of the First National Bank of Sioux Falls; that he went through them with Mr. Garretson, the cashier of the Sioux National Bank of Sioux City, Iowa, with a view of ascertaining if it would be safe to assume the liabilities of said bank, and take their assets, in order to prevent a failure. The witness was then asked this question: "State what you found the character of the assets to be, whether they were good or bad, and whether you found the bank solvent or insolvent." The question was objected to as incompetent and immaterial. The objection was sustained, and exception taken. The witness further testified that he could judge of such assets as he saw; was acquainted with most of the men, and knew their financial standing. The witness was then asked, "What was the value of those assets?" to which an objection was made and sustained, and an exception taken. The respondent then moved the court to direct a verdict in its favor for the face value of the certificates and interest, which motion was granted by the court; to which ruling of the court appellants duly excepted. From the judgment rendered on said verdict appellants appeal, and assign the rulings of the court herein specified as error.

In actions for the conversion of instruments for the payment of money of the character mentioned in this action, the amount appearing to be due thereon, of principal and interest, at the time of the conversion, and the interest upon that aggregate from thence to the trial, is prima facie the measure of damages.

Civil Code, §§ 1970-1982; Booth v. Powers, 56 N. Y. 22; Potter v. Bank, 28 N. Y. 654; 2 Phil. Ev. (Cow. & H. Ed.) 228; 2 Pars. Cont. 471; Decker v. Mathews, 12 N. Y. 324; Sedg. Dam. 513; Paine v. Pritchard, 2 Car. & P. 558; Mercer v. Jones, 3 Camp. 477; Evans v. Kymer, 1 Barn. & Adol. 528; St. John v. O'Connel, 7 Port. (Ala.) 466. It will then be seen that when the respondent had introduced the certificates of deposit in evidence, with the indorsement of the payee thereon, transferring same to the respondent, accompanied with proof of the conversion of the same by appellants, a prima facie case had been made. The appellants, however, had the right to introduce any legal evidence which would tend to show that the certificates of deposit were not worth their face value at the time of the alleged conversion. Among the facts which were competent to show the value of said certificates of deposit was the fact that the maker thereof was at the time of the alleged conversion insolvent. Potter v. Bank, 28 N. Y. 655; McPeters v. Phillips, 46 Ala. 496; Latham v. Brown, 16 Iowa, 118; Zeigler v. Wells, 23 Cal. 179; Cothran v. Bank, 40 N. Y. Super. Ct. 401. See, also, cases herein cited as to measure of damages. That it was competent to show by proper testimony that the maker of the certificates of deposit was insolvent, does not seem to have been disputed at the trial. The contention of counsel for respondent was that appellants had not introduced, or offered to introduce, any competent evidence of the insolvency of the maker of the certificates, viz., the First National Bank of Sioux Falls. The appellants had introduced evidence which showed beyond dispute that at the time of the alleged conversion of the certificates of deposit they had been presented to the maker thereof for payment, and payment had been refused. Was this evidence,— with the cause of the refusal to pay unexplained,-evidence in any degree tending to show the insolvency of the bank? debtor is insolvent when he is unable to pay his debts from his own means, as they become due. Civil Code, § 2028. In Brown v. Montgomery, 20 N. Y. 287, the trial court had charged the jury that the non-payment and protest of a bank-check was evV.5DAK.-19