The rule is ordinarily stated to be that the payee, or the local bank receiving it for collection, must forward it directly to the place of payment. It is said in Byles on Bills that the bank receiving it for collection cannot postpone the time of presentment by circulating it through agents or branches of the bank. In Moule v. Brown, 4 Bing. N. C. 266, the right of a branch office of the plaintiff bank to send through the home office, in accordance with the custom of the bank, was considered and denied.

We do not find that any modification of the rule as before stated has been recognized in recent cases. In First National Bank of Wymore v. Miller, 37 Neb. 500: 40 Am. St. 499, the question was as to the liability of the payee on his endorsement to the bank. The check was deposited on Saturday, the 31st day of May, and was drawn on a bank located at Courtland, 27 miles distant from the bank of deposit, and accessible by two daily mails. On receiving the check the Bank of Wymore mailed it to a bank in St. Joseph, Mo., for collection, and this bank mailed it to a bank in Omaha for collection, and the latter bank mailed it to the bank on which it was drawn. The court said the evidence did not show that this method of presentment was in accordance with any custom of bankers, but said further that if such a custom had been shown it would not have relieved the bank from liability. Without undertaking to lay down any general rule, the court said that in this case Tuesday, June 3d, would have been a reasonable time within. which to make presentment. This was in accordance with the rule as stated by Daniel.

In Gifford v. Hardell, 88 Wis. 538: 43 Am. St. 925, a check endorsed by the defendant was delivered to the plaintiff's agent at Dousman on July 17th, and was at once mailed to the plaintiff at New Richmond, who received it on the 18th and at once delivered it to a local bank for collection. This bank had no correspondent in Milwaukee, and

immediately mailed the check to its correspondent in Chicago. From Chicago it was forwarded to Milwaukee and presented on the 21st. If the check had been sent directly to Milwaukee from New Richmond it would have arrived in time for presentation on the 20th, and would have been paid. The trial court held that sending the check for collection by way of Chicago was not reasonably diligent, and directed a verdict for defendant. On appeal the judgment was sustained, the court saying that when the defendant delivered the check at Dousman he had a right to expect that the plaintiff or his agent would present it for payment within a reasonable time, instead of which it was sent to New Richmond, several hundred miles northwest of Milwaukee, and then sent back through Milwaukee to Chicago, and from there returned to Milwaukee. The court then stated how a check should be forwarded and presented in such cases; its rule corresponding to that given by Daniel. The rule is similarly stated in Holmes v. Roe, 62 Mich. 199.

In First National Bank of Grafton v. The Buckhannon Bank, 80 Md. 475, the plaintiff bank, located at Grafton, West Virginia, received on the 12th of January, in payment of a balance due it, a check on J. J. Nicholson & Sons of Baltimore, and on the same day forwarded it for collection to its correspondent bank in Philadelphia. The Philadelphia bank received it on the thirteenth, and at once mailed it to its correspondent bank in Baltimore. This bank received it on the 14th, and presented it to the drawee on the same day. The Court sustained this presentment, on the ground that the Grafton bank, having sent out the check one day sooner than was necessary, had it in Baltimore for presentment on the day required, notwithstanding its transmission through Philadelphia.

We think that if this rule of commercial law, stated in the various text-books, and affirmed by these recent cases, is to

be modified in derogation of the rights of drawers of checks, it should be done by legislative enactment.

Judgment reversed and judgment for defendant.

NOTE. The disposition of this case was made known during the session of the legislature, and No. 38, Acts of 1896, was then passed.

STATE US. JOSEPH WARNER.

October Term, 1895.

Present: Ross, C. J., RowELL, MUNSON, START and THOMPSON, JJ.

Exception-Evidence-Argument-Motion in Arrest.

No error is found in the charge, no exception having been taken to the omission now complained of, and that portion to which exception was taken being correct.

The child claimed that she was assaulted by the defendant in one of several sheds, and a witness for the State testified that he examined the sheds soon after the assault was alleged to have been committed and found in one of them the tracks of a man and a child. Held, that the court was justified in treating this as an item bearing upon the issue.

The State's Attorney, having testified in the case contrary to the testimony of the respondent, had a right to argue upon the theory that his testimony was true and the respondent's wilfully false. The court properly refused to charge that if there was any doubt as to which was right, the State's Attorney or the respondent, the respondent's version must be adopted.

A motion in arrest can be sustained only for matter apparent of record.
A motion to set aside a verdict will not be heard in this court on affidavits.

INFORMATION for assault with intent to ravish. Plea, not guilty. Trial by jury at the April Term, 1895, Franklin County. Tyler, J., presiding. Verdict, guilty, and judgment thereon. The respondent excepted.

The claim of the prosecution was that the respondent committed the assault upon a girl of eight years in a shed.

The State's Attorney testified that the respondent, while in jail admitted to him that he was with the girl in the shed. The respondent upon the stand denied that he was in the shed and denied that he made the admission.

In argument the State's Attorney, referring to the contradiction, said, "I do not think a man who will go on the stand and make the contradictions this man made will stop at anything, even so heinous as the crime charged against him here today." To this remark the respondent was allowed an exception.

After verdict, the respondent moved that sentence be arrested and the verdict set aside on the ground that before the empanelling of the jury the State's Attorney had misled the respondent's counsel into the belief that he would not be used as a witness upon the subject of the respondent's admission to him, in consequence of which they omitted to challenge certain talesmen who would have been objectionable as former neighbors of the State's Attorney; and on the ground that they had been deceived as to what his testimony would be, by reason whereof they failed to object seasonably to the State's Attorney's evidence; and on the ground that the counsel for the prosecution in his closing argument made unwarranted statements of fact and unjustly contrasted the characters of the State's Attorney and the respondent. Affidavits were filed in support of the motion.

The motion was denied and the respondent allowed an exception to the denial, "if entitled thereto as a matter of law."

C. G. Austin, for the respondent.

The judgment should be reversed for misconduct of counsel. State v. Hannett, 54 Vt. 83; Magoon v. B. & M. R. Co., 67 Vt. 177; Rea v. Harrington, 58 Vt. 181; Bullard v. B. & M. R. Co., 64 N. H. 27; Perkins v. Burley, 64 N. H. 524; Coble v. Coble, 79 N. C. 589; Angelo v. The People, 96 Ill. 209; State v. Smith, 75 N. C. 306; Devries v. Phillips, 63

N. C. 53; State v. Williams, 65 N. C. 505; State v. Underwood, 77 N. C. 502; Bulloch v. Smith, 15 Ga. 395; Mitchum v. State, 11 Ga. 633; Rolfe v. Rumford, 66 Me. 564; Ferguson v. State, 49 Ind. 33.

The motion in arrest should have been sustained. State v. Williams, 27 Vt. 724; Dow v. Hinesburgh, 1 Aik. 35; Stanton v. Bannister, 2 Vt. 464; Magoon v. B. & M. R. Co., supra.

Rea v.

Isaac N. Chase, State's Attorney, for the State. The argument was justified by the evidence. Harrington, 58 Vt. 181; Proctor v. De Camp, 83 Ind. 559; Combs v. State, 75 Ind. 215; Battishill v. Humphreys, 64 Mich. 514; Morrison v. State, 76 Ind. 335.

No exception lies to the refusal to entertain the motion. State v. Haynes, 35 Vt. 565.

A motion in arrest reaches only matters of record.

MUNSON, J. The mother of the child alleged to have been assaulted was called to establish the fact that an immediate complaint was made. In spite of the efforts of counsel and court, and evidently from a failure to comprehend the limit of admissibility, she interjected some improper statements regarding the complaint. But the only part of her testimony covered by an exception was a direct affirmative answer to the question whether the child complained of having been illtreated by anybody. The respondent also excepted to what the court charged in regard to this testimony; but his present contention is that the jury should have been told to disregard the improper portions of it. There was no error in the charge as given, for the court referred to the testimony merely as evidence that a complaint was made. The respondent cannot complain of the omission referred to, for there was no exception to a failure in that respect. He would undoubtedly have had the benefit of such an instruction if it had been suggested.

The child claimed that the assault was made in one of sev