that the defendant had another wife living at the time of the marriage annulled by the decree, it is competent, under the provisions of our statute, for the court in such proceeding to also decree reasonable alimony to the petitioner." In Bardin v. Bardin (1893) 4 S. D. 305, 46 Am. St. Rep. 791, 56 N. W. 1069, a wife brought an action for divorce, and defendant appealed from an order granting alimony pendente lite. The defendant admitted a ceremonial marriage with the plaintiff, but asserted that at that time the plaintiff had a husband living, to which the plaintiff rejoins under oath, admitting the former marriage, but averring that at the time of her marriage to the defendant her former husband had been absent for a space of more than ten years, and that she believed him dead. These allegations were uncontroverted by the defendant. The court held that although the allowance of alimony pendente lite and counsel fee was dependent on the marital relation, that relation need not be shown conclusively or beyond a doubt before the allowance may be granted; but that "the plaintiff must make out a reasonably plain case of the existence of the marital relation," that such matters should be shown by such legitimate proofs as may "make out, in the judgment of the court, a fair presumption of the fact of marriage." The In Walker v. Walker (1885) 10 Ont. Pr. Rep. 633, a wife claimed alimony on the ground of desertion; she asserted under oath the fact of her marriage with the defendant, giving particulars as to the ceremony. husband denied the marriage and produced some confirmatory evidence. There were, however, many undeniable facts of conduct and reputation from which a marriage de facto might be inferred, and thereon the court allowed alimony pendente lite. In Brown v. Brown (1907) 13 B. C. 73, a wife was granted permanent alimony in an action for divorce brought by her on the ground of the impotency of the husband. (b) Marriage obviously invalid. If, in an action by a wife for divorce, the existence of the marriage is neither admitted by the husband nor tentatively shown by the wife, no allowance for her support or assistance will, in the absence of statute, be granted. California.-Hite v. Hite (1899) 124 Cal. 389, 45 L.R.A. 793, 71 Am. St. Rep. 82, 57 Pac. 227 (action for divorce). Florida.-Banks v. Banks (1900) 42 Fla. 362, 29 So. 318 (action for maintenance). v. Georgia.-Roseberry v. Roseberry (1855) 17 Ga. 139 (action for divorce). Kansas.-Wilhite v. Wilhite (1889) 41 Kan. 154, 21 Pac. 173 (action for maintenance); Werner Werner (1898) 59 Kan. 399, 68 Am. St. Rep. 372, 53 Pac. 127 (action for divorce). Michigan.-Lapp v. Lapp (1880) 43 Mich. 287, 5 N. W. 317 (action for divorce). Mississippi.-Aldridge v. Aldridge (1918) 116 Miss. 385, 77 So. 150 (action for divorce). New Jersey.-Vreeland v. Vreeland (1866) 18 N. J. Eq. 43 (action for maintenance); Cray v. Cray (1880) 32 N. J. Eq. 25 (action for divorce); Robinson v. Robinson (1913) 82 N. J. Eq. 466, 88 Atl. 951 (action for divorce). England.-Smyth v. Smyth (1824) 2 Addams, Eccl. Rep. 254 (action for maintenance). In Hite v. Hite (Cal.) supra, a wife brought an action for divorce, alleging a marriage with the defendant, who denied that the marital relation ever existed. It was held that a prima facie showing of the marriage was not sufficient to warrant an allowance of alimony, where the marital relation was denied. When, in a suit brought by a wife, the allegations of marriage are not supported by any proof except an unsworn bill of complaint, and there is a denial of the marriage by the husband under oath, there is no foundation for the granting of alimony pendente lite, suit money, or counsel fees. Banks v. Banks (Fla.) supra. In Roseberry v. Roseberry (Ga.) supra, a wife brought an action for divorce, to which the husband answered, alleging the marriage to be void on the ground that the wife had a husband living at the time of the marriage. It was held that, the marriage having been denied, alimony would not be granted. Where a woman who sues for alimony has married within three months after having been divorced by a former husband, and a statute of the state in which she is married provides that divorced persons may not marry within six months of the date of the divorce, such marriage contract is void, and no basis exists for the allowance of alimony. Wilhite v. Wilhite (Kan.) supra. In Werner v. Werner (1898) 59 Kan. 399, 68 Am. St. Rep. 372, 53 Pac. 127, a wife brought suit for divorce, and was met with the answer that she had a husband living at the time of the marriage. The marriage was held to be void from the beginning, and hence it was held that no alimony could be allowed. Where a wife brought an action for divorce on the ground of cruelty, and it appeared that she knew that, at the time of her marriage with the defendant he had a wife living apart from him, under articles of separation, it was held that the marriage was void in fact, and the plaintiff was not entitled to temporary alimony. Lapp v. Lapp (Mich.) supra. In Aldridge v. Aldridge (Miss.) supra, a wife brought a bill for a divorce and alimony on the ground of cruel and inhuman treatment by the husband. It was shown by the husband's answer that at the time of the marriage now sought to be dissolved husband and wife had each a living and undivorced spouse. It was held that, the marriage having been void ab initio, no alimony could be allowed. In Vreeland v. Vreeland (N. J.) supra, a wife brought an action for alimony, and the marriage was denied by the defendant, who charged that the plaintiff had someone impersonate him at a pretended ceremony. There was no proof of cohabitation or repute thereof. It was held that, since no marriage had ever existed, alimony and counsel fees pendente lite could not be allowed. In Cray v. Cray (1880) 32 N. J. Eq. 25, a wife brought suit for divorce a mensa et thoro, and for separate maintenance. The defendant answered that the plaintiff had a husband living at the time of the marriage, and stated also that the separation was with her consent, and at her express wish. Since the allegations were completely met by the answer and affidavits, no alimony was allowed. In Robinson v. Robinson (1913) 82 N. J. Eq. 466, 88 Atl. 951, a wife brought an action for a divorce, and the husband, denying the validity of the marriage, asserted that she had a husband living at the time. The wife admitted that at the time of the marriage a divorce suit was pending between herself, as petitioner, and her former husband, in which a decree of divorce was entered in her favor twenty-three days after the present marriage had taken place; but asserted that at that time she was under the belief that the divorce had already been granted. The defendant denied this, and asserted that his wife knew at the time that she was not divorced, although it was unknown to him. The court said that if the plaintiff did indeed believe that she was divorced, and she and the defendant lived together as man and wife, believing their marriage lawful, then, the decree of divorce having been made, their continuous cohabitation and repute would, by inference, supply the consent essential to create the marital relation. Their conduct would be accepted as meritorious from its inception. If, however, the plaintiff knew of the obstacle to her marriage with the defendant, and it had been known to him only after the separation of himself and wife, there would need to be further evidence of mutual consent to marriage by the parties after the entry of the decree of divorce. Matrimonial habit and repute are of importance only where the good faith of the petitioner is established. It was held that, since the plaintiff had not produced the evidence sufficient to establish her case, alimony pendente lite, the basis of which is an existing marriage, could not be allowed. In Smyth v. Smyth (1824) 2 Addams, Eccl. Rep. (Eng.) 254, the court, on the wife's petition for formal allotment of a sum in the nature of alimony, said that this was impossible, because not even a marriage de facto had been established by proof or confession, but recommended nevertheless that the wife should be alimented during the long vacation. In Strode v. Strode (1867) 3 Bush (Ky.) 227, 96 Am. Dec. 211, it was held, contrary to the general rule and without statutory provision, that a woman without fault and of good character was entitled to alimony in a suit by her for divorce, even though the existence of the marital relation was not established. b. Under statute. In a number of jurisdictions, provision is made by statute for the grant of alimony or other financial assistance to a woman who seeks the dissolution of an invalid marriage. See the following cases: Connecticut.-Stapleberg v. Stapleberg (1904) 77 Conn. 31, 58 Atl. 233. Iowa.-York v. York (1872) 34 Iowa, 530; McFarland v. McFarland (1879) 51 Iowa, 565, 2 N. W. 269; Daniels v. Morris (1880) 54 Iowa, 369, 6 N. W. 532; Barber v. Barber (1887) 74 Iowa, 301, 37 N. W. 381. New Hampshire.-Bickford v. Bickford (1908) 74 N. H. 448, 69 Atl. 579. North Carolina.-Lea v. Lea (1889) 104 N. C. 603, 10 S. E. 488. Rhode Island.-Leckney v. Leckney (1904) 26 R. I. 441, 59 Atl. 311. Washington.-Arey v. Arey (1900) 22 Wash. 261, 60 Pac. 724. Under a statute providing "whenever from any cause any marriage is void the superior court may thereupon make such order concerning alimony as it might make in a proceeding for a divorce between such parties if married," it has been held that the statute applied to marriages void ab initio, such as the marriage of an uncle and his niece. Stapleberg v. Stapleberg (Conn.) supra. In Daniels v. Morris (1880) 54 Iowa, 369, 6 N. W. 532, wherein a wife brought suit for the annulment of her marriage, on the ground that the husband had a wife living at the time of the marriage, she was allowed compensation under a statute which provided that where, in such cases, innocence and good faith were shown, compensation might be granted as in cases for divorce. So, in Barber v. Barber (1887) 74 Iowa, 301, 37 N. W. 381, a wife brought an action to determine the validity of her marriage, requesting separate maintenance and permanent alimony if it were found valid, and compensation in case of its invalidity. It was found that the husband was of unsound mind at the time of the marriage, but that the wife was in complete ignorance thereof, and hence was entitled to compensation by virtue of a section of the Code which so provides for innocent parties entering into contracts of marriage in good faith, where the marriage is declared a nullity. However, in York v. York (Iowa) supra, it was held that where, in a wife's action for divorce, the marriage is absolutely denied, and not even established prima facie, temporary alimony cannot be allowed. In McFarland v. McFarland (1879) 51 Iowa, 565, 2 N. W. 269, a divorce was obtained by a husband, who shortly thereafter persuaded his former wife to return to him, stating that the divorce was of no effect, and conveying to her the belief that he intended present marriage: this was followed by a cohabitation of six years; and it was considered that this cohabitation, together with the intention of present marriage, established anew the marriage relation dissolved by the divorce, and constituted thereby a basis for the allowance of temporary alimony and counsel fees. In Bickford v. Bickford (N. H.) supra, a wife brought an action to annul her marriage on the ground that she had a husband living at the time of her marriage, although at that time she had been informed and then believed that he had obtained a divorce from her. The marriage was annulled, and an order allowing a monthly sum for support upheld, by virtue of a statute providing that, on a decree of nullity, the court may order a husband to pay such sum of money as may be deemed just. In Lea v. Lea (1889) 104 N. C. 603, 10 S. E. 488, a wife brought an action to annul her marriage with the defendant, on the ground that he had a wife living at the time of the ceremony. The court, in holding that the wife was entitled to alimony, pointed out that the provision of the Code, specifying that "alimony may be given where any married woman shall apply to a court for a divorce from the bonds of matrimony or from bed and board," was to be interpreted with its common-law significance, and at common law a divorce a vinculo could be granted only for a cause existing prior to the marriage, for something "rendering the marriage unlawful ab initio." The statute is to be considered as embracing "all cases where there has been a de facto marriage." In Leckney v. Leckney (1904) 26 R. I. 441, 59 Atl. 311, a wife brought an action for the annulment of her marriage to the defendant, on the ground that he had a wife living at the time of the marriage. A statute provided for "divorce in case of any marriage originally void or voidable by law." Another statute granted a court power to "make such allowance to the wife out of the estate of her husband, for the purpose of enabling her to prosecute or defend against any such peti tion for divorce, in case she has no property of her own available for such purpose, as it may think reasonable and proper." The court held that the statutes cited, providing as they did for a divorce in case of any marriage void or voidable by law, applied directly to the case in question, and must be interpreted as including and considering actions brought for the annulment of marriages de facto, and that temporary alimony and counsel fees would be allowed. In Arey v. Arey (1900) 22 Wash. 261, 60 Pac. 724, a wife brought an action for the annulment of her marriage, for the reason that she was under the legal age of consent at the time of the ceremony. The court held that there was a marriage de facto, and that the provisions of the Divorce Act for suit money and liability were applicable to the case; that the marriage was voidable only at the suit of the wife; and that she was entitled to suit money and counsel fee. In Chase v. Chase (1866) 55 Me. 21, a wife brought an action for divorce on the ground of impotence of the husband. A statute provided for divorce and the restoration of the property of the wife in such a case, and in the same section declared that alimony might be allowed in divorces granted for any other cause. It was held that alimony was directly excepted in suits for divorce on the ground of impotence. R. S. 1. Proof of actual damages is not necessary to enable a merchant or trader to recover substantial damages from a banker who dishonors his checks when he has funds on deposit. [See note on this question beginning on page 947.] v. Evidence presumption of damages dishonor of checks. are pre 2. Substantial damages sumed in case a bank wrongfully dishonors the checks of a merchant. [See 5 R. C. L. 548.] awarded a merchant for wrongful dishonor of his checks, the jury may consider the importance of the checks to the business, the size of the account, and the drawer's standing as a business man in the community. [See 5 R. C. L. 550, 551.] (McCulloch, Ch. J., and Smith, J., dissent.) APPEAL by plaintiffs from a judgment of the Circuit Court for St. Francis County (Jackson, J.) in their favor, for less than the amount asked for, in an action brought to recover damages for alleged wrongful dishonoring of plaintiffs' checks. Reversed. The facts are stated in the opinion of the court. 5 Cyc. 535; Commercial Nat. Bank v. Latham, 29 Okla. 88, 116 Pac. 197, Ann. Cas. 1913A, 999; Lorick v. Palmetto Bank & T. Co. 74 S. C. 185, 54 S. E. 206, 7 Ann. Cas. 818; Columbia Nat. Bank v. MacKnight, 29 App. D. C. 580, 10 Ann. Cas. 897; Siminoff v. Jas. H. Goodman & Co. Bank, 18 Cal. App. 5, 121 Pac. 939; Wiley v. Bunker Hill Nat. Bank, 183 Mass. 495, 67 N. E. 655; Third Nat. Bank v. Ober, 102 C. C. A. 178, 178 Fed. 678; Spearing v. Whitney Cent. Nat. Bank, 129 La. 607, 56 So. 548; Western Nat. Bank v. White, 62 Tex. Civ. App. 374, 131 S. W. 828. The bank could not defend on the strength of its own error; mistake or error is no excuse. 5 R. C. L. 546; Atlanta Nat. Bank v. Davis, 96 Ga. 334, 51 Am. St. Rep. 139, 23 S. E. 190; Lorick v. Palmetto Bank & T. Co. 74 S. C. 185, 54 S. E. 206, 7 Ann. Cas. 818. Messrs. Mann, Bussey, & Mann, and R. J. Williams, for appellee: It is not necessary that the instructions use the word "substantial," but it is only necessary that the jury be told that the plaintiffs were entitled to recover such sum as would be a fair and just compensation for injury sustained. Schaffner v. Ehrman, 139 Ill. 109, 15 L.R.A. 134, 32 Am. St. Rep. 192, 28 N. E. 917. Humphreys, J., delivered the opinion of the court: Appellants instituted suit against appellee in the St. Francis circuit court to recover damages for wrongfully and wilfully dishonoring or refusing to pay certain checks drawn by them upon appellee in favor of the Southwestern Telephone & Telegraph Company engaged in business in Forrest City, Arkansas, and various wholesale merchants engaged in business in Memphis, Tennessee. In substance, the complaint alleged that appellants were partners engaged in a general grocery and butcher business in Madison, Arkansas; that appellee was a national bank engaged in the banking business at Forrest City, Arkansas; that in May, 1917, appellants were depositors in appellee's bank and issued checks on their deposit, payable to the Southwestern Telephone & Telegraph Company and certain wholesale merchants in Memphis, Tennessee, which checks, in the course of negotiation, were passed through banks in Memphis, St. Louis, and Forrest City; that, in due course of business, said checks were presented to appellee for payment, and wrongfully and wilfully refused or "turned down" by it on the 18th, 19th, and subsequent dates in May, 1917, to the damage of appellants in the sum of $6,000. Appellee filed answer, denying that it wilfully or wrongfully refused to pay or "turned down" checks of appellants, or that appellants were damaged in any sum by reason of its refusal to pay the checks when presented; but admit |