not served with notice, and it was there held that the decree in the probate proceeding had no binding force as to him. The foregoing proposition is, however, so elementary that no citation of authority should be required. The following cases also clearly support the conclusion reached in the principal opinion; namely: Fisher v. Wood, 65 Tex. 199; Maney v. Casserly, 134 Mich. 252, 96 N. W. 478. In the Texas case it is expressly held that a defaulting executor may be charged as trustee, and after the property found in his hands is exhausted "the plaintiffs will have to look to the executor and his bondsmen." Why not? What is an administrator's bond given for, if it is not to protect the heir against the wrongful official acts of the administrator in administering the estate? view that in this case the administratrix practised fraud upon the court, upon the surety on her bond, and upon the heirs alike, does not In change the rule, although her wrongful acts fall with peculiar severity upon the surety. The surety vouched for her official conduct, and, however innocent, must nevertheless bear the burden as against the heirs, who are likewise innocent, and for whose protection the law required the giving of a bond. The contention that we quoted the conclusion of law found in the second case, instead of the one found in the first one, is too trivial to require special comment. The conclusion of law we quoted in the opinion was inevitable, in view of the facts found in both cases, and therefore, although counsel's contention be conceded to be correct, it has no bearing upon the result. We are still of the opinion that the conclusion reached is sound, and hence should prevail. The petition for a rehearing is therefore denied. Corfman, Weber, Gideon, and Thurman, JJ., concur. ANNOTATION. Liability of sureties on bond of administratrix who secures her appointment by misrepresenting the decedent's identity or her relationship to him. The ultimate question, apart from the questions of practice and remedies, presented in the reported case (WEYANT V. UTAH SAV. & T. Co. ante, 1119) as to the liability of the sureties on the bond of an administratrix who secured her appointment by fraudulently misrepresenting the identity of the decedent and her relation to him, and under cover of the administration proceedings thus instituted wrongfully secured the property of the estate, is one of interest and difficulty, upon which there seem to be no precise precedents. It would seem that the case on its facts might reasonably admit of diverse conclusions. It will be observed, as stated in the rehearing opinion, that the court regarded as a potent fact in the situation that the published notice of the administration proceedings was insufficient to charge the heirs, because it was published under a false name. It is not alto gether clear, however, that the liability of the sureties is a logical sequence from that fact, since they were not in the position of distributees or even purchasers of the property whose possession or claim thereto must rest defensively upon the administration proceedings, and as against whom the heirs would not in the first instance be obliged to invoke those proceedings. It is further to be observed, that the administration of the estate, at least to the extent of a widow's share, was in harmony with the theory and finding of fact upon which the decree granting the letters of administration was rendered, and upon the basis of which the bond-which must be affirmatively invoked by the heirs-was executed. In this respect the case would seem to be distinguishable from a case where, an administrator having failed to administer the estate in harmony with the decree appointing him, (55 Mont. 146, 174 Pac. 597.) Bank authority of president and cashier. 1. Neither the president, the cashier, nor both of them, could release a debtor of the bank from his liability without authority of the board of directors. [See note on this question beginning on page 1146.] 2. One signing a note as a comaker is primarily liable thereon under a statute providing that the person primarily liable is the one who, by the terms of the instrument, is absolutely required to pay the same, and it is immaterial that he was a mere accommodation maker. [See 3 R. C. L. 1276.] - effect of renewal note as payment. 3. In the absence of express agreement to that effect, a renewal note does not extinguish the original one, although the latter is surrendered to the maker. [See 3 R. C. L. 1217.] -effect of stamping note paid. 4. That the cashier of a bank upon receiving a renewal note stamped the original one paid does not of itself extinguish the original obligation. -authority of cashier. 5. The cashier of a bank has no implied authority to accept a renewal note in payment of the original so as to release the parties to the latter. [See 3 R. C. L. 449.] - effect of permitting cashier to manage bank. 6. The directors of a bank do not, by turning over to the cashier the entire management of the bank, impliedly confer upon him authority to release the liability of the president of APPEAL by defendant from a judgment of the District Court for Fergus County (Ayers, J.) in favor of plaintiff and from an order denying a motion for new trial in an action brought to enforce payment of a certain promissory note and accumulated interest. Affirmed. The facts are stated in the opinion Messrs. Belden & DeKalb, for appellant: The management and control of the affairs of the bank having been turned over or abandoned to the cashier, he has all the power of the bank. 1 Morse, Banks, 343, ¶ 165; Wing v. Commercial & Sav. Bank, 103 Mich. 565, 61 N. W. 1009; Martin v. Webb, 110 U. S. 7, 28 L. ed. 49, 3 Sup. Ct. Rep. 428; 7 C. J. 540, 551, 5 4, 783, 784; Davenport v. Stone, 104 Mich. 521, 53 Am. St. Rep. 467, 62 N. W. 722; Tourtelot v. Whithed, 9 N. D. 467, 84 N. W. 8; Stebbins v. Lardner, 2 S. D. 127, 48 N. W. 847; Skillern v. Baker, 82 Ark. 86, 118 Am. St. Rep. 52, 12 Ann. Cas. 243, 100 S. W. 764; Merchants' Nat. Bank v. State Nat. Bank, 10 Wall. 604, 19 L. ed. 1008; Stapylton v. Stockton, 33 C. C. A. 542, 63 U. S. App. 412, 91 Fed. 326; Armstrong v. Chemical Nat. Bank, 27 C. C. A. 601, 54 U. S. App. 462, 83 Fed. 556; Bell v. Hanover Nat. Bank, 57 Fed. 821; L'Herbette v. Pittsfield Nat. Bank, 162 Mass. 137, 44 Am. St. Rep. 34, 38 N. E. 363; Iowa Nat. Bank v. Sherman, 17 S. D. 396, 106 Am. St. Rep. 778, 97 N. W. 12; Blanchard v. Commercial Bank, 21 C. C. A. 319, 44 U. S. App. 556, 75 Fed. 249; Cox v. Robinson, 27 C. C. A. 120, 48 U. S. App. 388, 82 Fed. 277; Carpy v. Dowdell, 115 Cal. 683, 47 Pac. 695; First Nat. Bank v. Shook, 100 Tenn. 444, 45 S. W. 340; Indianapolis Rolling Mills Co. v. St. Louis, Ft. S. & W. R. Co. 120 U. S. 256, 30 L. ed. 639, 7 Sup. Ct. Rep. 542; First Nat. Bank v. Stone, 106 Mich. 370, 64 N. W. 488; Leicester Piano Co. v. Ft. Royal & R. Improv. of the court. Co. 5 C. C. A. 60, 8 U. S. App. 374, 55 Fed. 203; Washington Sav. Bank v. Butchers' & D. Bank, 107 Mo. 134, 17 S. W. 644; Kraniger v. People's Bldg. Soc. 60 Minn. 94, 61 N. W. 904; Calvert v. Idaho Stage Co. 25 Or. 412, 36 Pac. 24; Ceeder v. H. M. Loud & Sons Lumber Co. 86 Mich. 541, 24 Am. St. Rep. 134, 49 N. W. 575; Thomp. Corp. $ 4883; United States Nat. Bank v. First Nat. Bank, 24 C. C. A. 597, 49 U. S. App. 67, 79 Fed. 296. Where the principal attempts by suit to enforce the payment of notes received by the agent without authority, he thereby impliedly ratifies such act or contract. Dick v. Flanagan, 122 Ind. 277, 7 L.R.A. 590, 23 N. E. 765; Dickinson v. Wright, 56 Mich. 42, 22 N. W. 312; Ingraham v. Barber, 72 Ga. 158; Beidman v. Goodell, 56 Iowa, 592, 9 N. W. 900; Eadie v. Ashbaugh, 44 Iowa, 519; West Boylston Mfg. Co. v. Searle, 15 Pick. 225; Sherrod v. Duffy, 160 Mich. 488, 136 Am. St. Rep. 451, 125 N. W. 366; D. M. Osborn Co. v. Jordan, 52 Neb. 465, 72 N. W. 479; Corser v. Paul, 41 N. H. 24, 77 Am. Dec. 753; Chamberlain v. Woodward, 22 Hun, 440; La Grande Nat. Bank v. Blum, 27 Or. 215, 41 Pac. 659; Twentieth Century Co. v. Quilling, 136 Wis. 481, 117 N. W. 1007. The statement by the cashier that the note had been paid was binding upon the bank. Grant v. Cropsey, 8 Neb. 205; Franklin Bank v. Steward, 37 Me. 519; Cochecho Nat. Bank v. Haskell, 51 N. H. 116, 12 Am. Rep. 67. (55 Mont, 146, 174 Pac. 597.) Defendant was disqualified in every sense of the word to pass upon or act upon the paper in question. Chamberlain v. Pacific Wool Growing Co. 54 Cal. 103; Graves v. Mono Lake Hydraulic Min. Co. 81 Cal. 320, 22 Pac. 665; Wickersham v. Crittenden, 93 Cal. 32, 28 Pac. 788; Union Trust Co. v. Nevada & O. R. Co. 20 Fed. 86; Park Hotel Co. v. Fourth Nat. Bank, 30 C. C. A. 409, 58 U. S. App. 674, 86 Fed. 745; Smith v. Los Angeles Immigration & Land Co-op. Asso. 78 Cal. 289, 12 Am. St. Rep. 53, 20 Pac. 677; Curtin v. Salmon River Hydraulic Gold Min. & Ditch Co. 130 Cal. 345, 80 Am. St. Rep. 132, 62 Pac. 552; Star Mills v. Bailey, 140 Ky. 194, 140 Am. St. Rep. 370, 130 S. W. 1077; Miner v. Belle Isle Ice Co. 93 Mich. 97, 17 L.R.A. 412, 53 N. W. 218; McConnell v. Combination Min. & Mill. Co. 30 Mont. 239, 104 Am. St. Rep. 703, 76 Pac. 194; Haywood v. Lincoln Lumber Co. 64 Wis. 639, 26 N. W. 184; Garrett v. Burlington Plow Co. 59 Am. Rep. 466, note. Messrs. Charles J. Marshall and Gunn, Rasch, & Hall, for respondent: The cashier had no special or express authority to surrender the note signed by Lang and accept a new note without his signature. Bank of Ravenswood v. Wetzell, 58 W. Va. 1, 70 L.R.A. 305, 50 S. E. 886, 6 Ann. Cas. 48; State Bank v. Forsyth, 28 L.R.A. (N.S.) 501, note; Bank of Commerce v. Hart, 37 Neb. 197, 20 L.R.A. 780, 40 Am. St. Rep. 479, 55 N. W. 631; First Nat. Bank v. Gunhus, 133 Iowa, 409, 9 L.R.A. (N.S.) 471, 110 N. W. 611; Cochecho Nat. Bank V. Haskell, 51 N. H. 116, 12 Am. Rep. 67; Dedham Inst. v. Slack, 6 Cush. 408; Hodge v. First Nat. Bank, 22 Gratt. 51; Daviess County Sav. Asso. V. Sailor, 63 Mo. 24. The cashier's act was never ratified. Sehart-Patterson Mill. Co. V. Hughes, 8 Kan. App. 514, 56 Pac. 143; 3 R. C. L. Banks, § 85; First Nat. Bank v. Drake, 29 Kan. 311, 44 Am. Rep. 646; Pacific Vinegar & Pickle Works v. Smith, 152 Cal. 507, 93 Pac. 85; Williams v. Broadwater County, 28 Mont. 360, 72 Pac. 755; Smith v. Zimmer, 45 Mont. 305, 125 Pac. 420; Goodyear Dental Vulcanite Co. v. Caduc, 144 Mass. 85, 10 N. E. 483. See also Triggs v. Jones, 46 Minn. 277, 48 N. W. 1113; East River Bank v. Kennedy, 9 Bosw. 543; Sohn v. Morton, 92 Ind. 170; Historical Pub. Co. v. Hartranft, 3 Pa. Super. Ct. 59; Brown v. Fowler, 133 Ala. 310, 32 So. 584; Gardner v. Pitcher, 109 App. Div. 106, 95 N. Y. Supp. 678; 31 Cyc. 1260. The taking of a renewal note and returning the old note to the maker does not discharge the old debt and create a new one in the absence of express agreement to that effect, and such agreement must, of course, be made by one having authority to make it. First Nat. Bank v. Cottonwood Land Co. 51 Mont. 544, 154 Pac. 582; First Nat. Bank v. White, 60 N. J. Eq. 487, 46 Atl. 1092; Welch v. Allington, 23 Cal. 322; State Bank v. Mutual Teleph. Co. 123 Minn. 314, 143 N. W. 912, Ann. Cas. 1915A, 1082; Gallery v. National Exch. Bank, 41 Mich. 169, 32 Am. Rep. 149, 2 N. W. 193; Fowler v. Walch, 119 App. Div. 542, 104 N. Y. Supp. 54; First Nat. Bank v. Gunhus, 133 Iowa, 409, 9 L.R.A. (N.S.) 471, 110 N. W. 611; Bridge v. Connecticut Mut. L. Ins. Co. 167 Cal. 774, 141 Pac. 375. Defendant was primarily liable under the Negotiable Instruments Law. 3 R. C. L. § 506; Union Trust Co. v. McGinty, 28 Ann. Cas. 525, and note, 212 Mass. 205, 98 N. E. 679; Bradley Engineering & Mfg. Co. v. Heyburn, 56 Wash. 628, 134 Am. St. Rep. 1127, 106 Pac. 170; Cellers v. Meachem (Sellers v. Lyons) 49 Or. 186, 10 L.R.A. (N.S.) 133, 89 Pac. 426, 13 Ann. Cas. 997; Wolstenholme v. Smith, 34 Utah, 300, 97 Pac. 329; Rouse v. Wooten, 140 N. C. 557, 111 Am. St. Rep. 875, 53 S. E. 430, 6 Ann. Cas. 280; National Citizens' Bank v. Toplitz, 81 App. Div. 593, 81 N. Y. Supp. 422; Vanderford v. Farmers' & M. Nat. Bank, 105 Md. 164, 10 L.R.A. (N.S.) 129, 66 Atl. 47; 3 R. C. L. § 503; Carver v. Steele, 116 Cal. 116, 58 Am. St. Rep. 156, 47 Pac. 1007; Rogers v. Detroit Sav. Bank, 146 Mich. 639, 18 L.R.A. (N.S.) 531, 110 N. W. 74; Gray v. Farmers' Nat. Bank, 81 Md. 631, 32 Atl. 518; Carpenter v. McLaughlin, 12 R. I. 270, 34 Am. Rep. 638. Defendant could not protect his private interests to the detriment of the bank's interests. Gallery v. National Exch. Bank, 41 Mich. 169, 32 Am. Rep. 149, 2 N. W. 193; Bowles, Modern Law of Banking, p. 370; State Bank v. Mutual Teleph. Co. 123 Minn. 314, 143 N. W. 912, Ann. Cas. 1915A, 1082; Fowler v. Walch, 119 App. Div. 542, 104 N. Y. Supp. 54; First Nat. Bank v. Gunhus, 133 Iowa, 409, 9 L.R.A. (N.S.) 471, 110 N. W. 611; Wallace v. Oceanic Packing Co. 25 Wash. 143, 64 Pac. 938; Smith v. Pacific Vinegar & Pickle Works, 145 Cal. 352, 104 Am. St. Rep. 42, 78 Pac. 550; Rhodes v. Webb, 24 Minn. 292; Findley v. Cowles, 93 Iowa, 389, 61 N. W. 998; Commercial Bank v. Chatfield, 121 Mich. 641, 80 N. W. 712; Lawrence v. Stearns, 79 Fed. 878. Defendant cannot take advantage of his own negligence, as an officer of the bank, in failing to do his duty as such officer. State Bank v. Forsyth, 41 Mont. 249, 28 L.R.A. (N.S.) 501, 108 Pac. 914; Campbell v. Watson, 62 N. J. Eq. 396, 50 Atl. 120. note, and thereafter judgment was recovered and execution issued, but nothing was collected. From the organization of the bank until November, 1912, Henderson was cashier and Lang was president of the bank, and each of them was a director. Plaintiff is the successor of the First State Bank of Kendall. This action was commenced against Lang to enforce payment of the Smith-Lang note for $1,900 and accumulated interest. The defendant pleaded: (1) That he signed the note as accommodation for Smith, Holloway, J., delivered the opin- and that the bank extended the time ion of the court: In March, 1908, Charles W. Smith and H. H. Lang executed and delivered to the First State Bank of Kendall their promissory note of $1,900, and, as additional security for the loan, Smith delivered to the bank 1,000 shares of the capital stock of the North Moccasin Mining Company. Although the note was not due until January, 1909, as early as April, 1908,-the month following its execution,-Lang importuned Smith to make payment on it, which Smith declined to do, and the like requests were repeated by Lang thereafter, but unsuccessfully. On November 8, 1908, Smith executed and delivered to the bank a new note for $2,695, due in one year, in renewal of the Smith-Lang note and a balance due on another note of Smith's, and the original note was stamped "Paid," and delivered to Smith. This renewal note was not signed by Lang, but the collateral which secured the two notes was left with the bank as the only security for the new note. On April 2, 1909, this renewal note was taken up and a third note for $3,612.87, signed by Smith and wife, was given in renewal of that note and for other advancements, and the second note was stamped "Paid" and delivered to Smith. In addition to the collateral which secured the second note, Smith and wife executed and delivered to the bank a mortgage upon some real property in Kendall. On March 12, 1912, suit was instituted to enforce collection of this third of payment without his knowledge or consent; (2) that the bank was guilty of laches in prosecuting its claim against Smith; and (3) that the note was fully paid and discharged. Upon the trial and at the close of the testimony the court directed a verdict for the plaintiff, and defendant has appealed from an order denying him a new trial. There is not any conflict in the evidence except as to matters to which reference will be made hereafter. Lang was general manager of the North Moccasin Mining Company, and owned considerable of its stock. The expenses of the company far exceeded its income, but notwithstanding this fact the stock had a market value of from $1.90 to $2 per share. Lang sold to Smith the 1,000 shares heretofore mentioned at $1.90 per share. The money with which to pay for the stock was borrowed from the bank, and the Smith-Lang note executed and delivered, the money received and immediately passed to Lang's credit, and the certificate of stock delivered to the bank as collateral. On November 1, 1908, the mining company defaulted in the payment of interest on its bonded indebtedness. In April, 1909, mining operations ceased. In September, 1909, a suit to foreclose was brought and prosecuted to decree and sale, and the stock became worthless. Prior to November, 1912, the board of directors of the bank, in disregard of its by-laws, held no meetings except to elect officers, |